INDEX JULY 1980 

Commission Decisions 

7-01-80 

7-02-80 

7-09-80 

7-21-80 

Peabody Coal Company 

New Jersey Pulverizing Company 

Island Creek Coal Company 

North American Coal Co. & Quarto 

-Mining Companies 

& Nacco 

BARB 76-117 

YORK 79-94-M 

BARB 77-27 

LAKE 79-118 et al 

7-25-80 

7-29-80 

Island Creek Coal Co. & Langley 

Martin Marietta Corporation 

& Morgan Corp. VA 79-81-D 

SE 80-24-M 

Administrative Law Judge Decisions 

6-19-80 Johnny Howard v. Martin-Marietta Corp. 

6-27-80 J P Burroughs & Son Inc. 

7-01-80 

7-02-80 

7-02-80 

7-03-80 

7-03-80 

7-03-80 

7-03-80 

7-08-80 

7-08-80 

7-08-80 

7-11-80 

7-11-80 

7-11-80 

7-14-80 

7-16-80 

7-16-80 

7-23-80 

7-23-80 

7-23-80 

7-24-80 

7-25-80 

7-25-80 

7-25-80 

7-25-80 

7-25-80 

7-25-80 

7-25-80 

7-25-80 

7-28-80 

7-29-80 

7-30-80 

7-31-80 

7-31-80 

7-31-80 

C F & I Steel Corp. 

Day Mines Irie. 

Borsberry Construction Company 

Solar Fuel Company 

UMWA 

NY State Dept. of Transportation 

Old Ben Coal Company 

The Anaconda ~ompany 

Clinchf ield Coal Company 

Missouri Gravel Company 

Peabody Coal Company 

Consolidation Coal Company 

Valley Camp Coal Co. 

Bishop Coal Company 

U S Steel Corp. 

Martin=Marietta Aggregates 

Pennslyvania Glass Sand Corp. 

Peggy-0 Coal Co. 

Olga Coal Company 

Amherst Coal Company 

Peabody Coal Company 

Climax Molybdenum 

Jim Walter Resources Inc. 

Rock Valley Cement Block & Tile 

Climax Molybdenum Company 

Ozark-Mahoning Company 

Old Ben Coal Company 

Climax Molybdenum Company 

Coal Resources Inc. 

Duval Corp 

Island Creek Coal Co. 

Itmann Coal Company 

North American Sand & Gravel Co. 

Consolidation Coal Company 

SE 80-24-DM 

LAKE 80-223-M 

WEST 80-85-D 

DENV 79-424-PM 

CENT 79-174-M 

PENN 79-142 

WEVA 79-199-R 

YORK 79-21-M 

VINC 75-313 

WEST 79-128-M 

NORT 78-395-P 

LAKE 80-83-M 

LAKE 80-77 

PENN 79-105 

WEVA 79-116-D 

WEVA 80-41 

PITT 79-186-P 

CENT 79-171-M 

CENT 79-354-M 

VA 79-41 et al 

WEVA 80-124 et al 

WEVA 79-222 

KENT 80-155 

WEST 79-192-M 

BARB 77-266-P 

DENV 79-587-PM 

WEST 79-303-M 

LAKE 79-280-M 

LAKE 79-238 et al 

WEST:.79-301-M 

WEVA 80-323 

WEST 79-196-M 

KENT 79-216-R 

WEVA 80-9-R et al 

LAKE 79-51-M 

WEVA 79-129-R 

Pg. 1683 

Pg. 1686 

Pg. 1689 

Pg. 1694 

Pg. 1698 

Pg. 1702 

Pg. 1706 

Pg. 1707 

Pg. 1710 

Pg. 1720 

Pg. 1724 

Pg. 1732 

Pg. 1739 

Pg. 1749 

Pg. 1783 

Pg. 1785 

Pg. 1786 

Pg. 1792 

Pg. 1795 

Pg. 1809 

Pg. 1819 

Pg. 1823 

Pg. 1831 

Pg. 1834 

Pg. 1842 

Pg. 1852 

Pg. 1862 

Pg. 1872 

Pg. 1880 

Pg. 1884 

Pg. 1890 

Pg. 1906 

Pg. 1918 

Pg. 1924 

Pg. 1929 

Pg. 1967 

Pg. 1973 

Pg. 1976 

Pg. 1983 

Pg. 1986 

Pg. 2017 

Pg. 2021 
Commission Decisions 

July 1980 
JULY 

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

Secretary of Labor on behalf of Johnny Chacon v. Phelps Dodge Corp., 

WEST 79-349-DM (Judge Lasher, May 30, 1980) 

Secretary of Labor, MSHA v. Phillips Uranium Corporation, CENT 79-281-M, 

etc. (Judge Carlson, June 5, 1980) 

Secretary of Labor, MSHA v. C & K Coal Company, PENN 79-60 (Judge Merlin, 

June 12, 1980) 

Secretary of Labor, MSHA v. Consolidation Coal Company, WEVA 80-333-R 

(Judge Broderick, June 12, 1980) 

Secretary of Labor, MSHA v. Ideal Basic Industries, Cement Div., SE 79-16-M 

(Judge Koutras, June 9, 1980) 

Secretary of Labor, MSHA v. The Anaconda Company, WEST 79-128~M, WEST 79-130-M 

and WEST 79-137-M (Judge Morris, June 13, 1980) 

Secretary of Labor, MSHA v. The Hanna Mining Company, LAKE 79-103-M, etc. 

(Judge Broderick, June 17, 1980) 

Johnny Howard v. Martin Marietta Corporation, SE 80-24-DM (Judge Broderick, 

June 19, 1980) 

Secretary of Labor, MSHA v. King Knob Coal Company, WEVA 79-360 (Judge 

Melick, June 27, 1980) 

Secretary of Labor, MSHA v. J.P. Burroughs & Son, Inc., LAKE 80-223-M 

(Judge Broderick, June 27, 1980) 

Secretary of Labor, MSHA v. Kanawha Coal Company, WEVA 80-40, etc. (Judge 

Bernstein, June 24, 1980) 

Secretary of Labor, MSHA v. Kanawha Coal Company and Beckley Coal Mining 

Company, WEVA 80-150, 80-154 (Judge Kennedy, June-27, 1980) 

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

Secretary of Labor, MSHA v. Hastie Mining Company, LAKE 79-191-M 

(Judge Broderick, May 29, 1980) 

Vess Hall v. Little T Coal Company, SE 79-119-D (Judge Broderick, May 27, 1980) 

Virginia Pocahontas Company, & Island Creek Coal Company v. MSHA & UMWA, 

VA 79-61-R, etc. (Judge Koutras, June 3, 1980) 

Secretary of Labor, MSHA v. Asarco, Incorporated, WEST 79-274-M (Judge 

Morris, June 3, 1980) 
Secretary of Labor, MSHA v. North American Coal Corp., Quarto Mining Co., 

and NACCO Mining Gompanyr-LAKE 79-118, etc. (Judge Moore, February 12, 1980) 

Secretary of Labor on behalf of Gene Hand v. Zeigler Coal Co., LAKE 80-292-D, 

(Judge Broderick, June 17, 1980 order - Petition for Interlocutory Review) 

Secretary of Labor on behalf of Larry Long v. Island Creek Coal Co., & 

Langley & Morgan Corporation, VA 79-81-D (Judge Fauver, June 19, 1980) 

Secretary of Labor, MSHA v. Clark Brothers Contractors, DENV 79-475-PM 

(Judge Broderick, June 19, 1980) 

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

Secretary of Labor, MSHA v. Hilo Coast Processing Company, DENV ~9-50-M, 

etc. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PEABODY COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 1, 1980 

Docket No. BARB 76-117 

IBMA 77-A 

DECISION 

This is a penalty proceeding arising under sectionl09(a) of the 

Federal Coal Mine Health and Safety Act of 1969. 30 U.S.C. §801 et seq. 

(1976 and Supp. I 1977). An appeal was pending before the Interior 

Department Board of Mine Operations Appeals on March 8, 1978. Accordingly, it is before the Commission for decision. 30 U.S.C. §961 (1978). 

Peabody is appealing a decision of an administrative law judge that 

found the company in violation qf 30 CFR §77.404(a) and assessed a 

penalty of $3,500 for that violation. 

The case arose out of a fatality ~hat occurred at Peabody Coal 

Company's Ken Strip Mine in Kentucky on May 8, 1974. Ellis O. Crick, a 

welder in the truck. repair shop at the mine, was killed when an overhead 

chain hoist fell and struck him in the head. 

An examination of the hoist after the accident showed that a flange 

on the heist's assembly .h~d been bent outward. This bend caused the 

rollers to lose contact with the overhead beam and fall. No one at the 

Ken Mine was aware of the damage to the flange prior ~o the accident. 

The judge held that the evidence established that Peabody failed to 

maintain equipment in safe operating condition as required by 30 CFR 

§77.404(a). That regulation provides: "Mobile and stationary machinery 

and equipment shall be maintained in safe operating ~ondition and 

machinery or equipment in unsafe condition shall be removed from service 

immediately". He pointed out that the Board of Mine Operation Appeals, 

in a case involving a similiarly worded regulation, 1J held that proof 

of an unsafe condition in equipment establishes a prima facie case of 

failure to properly maintain that equipment. He held that an operator 

must conduct sufficient inspections of poten.tially dangerous types of 

equipment such as the hoist in order to satisfy the maintenance requirement in the regulation and that Peabody had failed to fulfill that 

requirement because no particular inspections of the hoist were being 

conducted. 

1../ Eastern Associated Coal Corporation, 5 IBMA 185, 200(1975). 

1683 80-7-1 
On appeal, Peabody admits that the evidence established that an unsafe condition-exis-ted-at--its mine at the time of the accident. Peabody 

argues, however, that the judge erred in concluding that the evidence 

established a violation of the regulation. Peabody contends that there 

are two permissible interpretations of the regulation: (1) that the 

regulation is violated only if the operator knows that equipment is 

unsafe and fails to remove it from service once the unsafe condition is 

known, or (2) that the regulation is violated if an operator does not 

know of the unsafe condition and fails to exerc-ise reasonable care to 

discover the existence of the unsafe condition. 

We reject these arguments. In Peabody Coal Company, 1 FMSHRC 1494 

(1979), the Commission held that 30 CFR §77.404{a) imposes two duties on 

an operator -- a duty to maintain machinery and equipment in safe operating 

condition, and a duty to remove unsaf~ equipment from service. The 

Commission said that an operatqr violates the portion of the regulation 

requiring operators to maintain equipment in "safe operating condition" 

whenever the existence of an uns~fe condition is proved. We rejected 

the argument that a violation·of the requirement to maintain equipment 

in safe operating condition is not established unlessthe ·evidence shows 

that an operator knew or should have known of the existence of the 

unsafe condition. We said: 

The regulation requires that operators maintain 

machinery and equipment in safe operating condition and impos~s liability on an operator 

regardless of it§ knowledge of unsafe conditions. 

What the opera tor knew. or;. should have known 

is relevant, if at all, .in determining the 

appropriate penalty, not in determining 

whether a violation of the.regulation 

occurred. [l FMSHRC at 1495.] 

Accordingly, because it is undisputed that the hoist was in an unsafe 

condition, a violation of the reg~iation has been established. 

We turn now to the issue of the appropriateness of the penalty 

assessed by the judge. In arguing for a reduction of the penalty, 

Peabody does not dispute the findings of the judge relating to the 

penalty criteria set forth in section 109 of the 1969 Act. Peabody 

maintains, however, that those findings do not support the assessment of 

a $3,500 penalty. 

The Commission has declined to disturb penalty amounts assessed by 

a judge where the record reflects his full consideration of the six 

statutory criteria. See, e.g. Peabody Coal Co., 1 FMSHRC 1494(1979); 

Pittsburgh Coal Co., 1 FMSHRC 1468(1979); U.S. Steel Corp., 1 FMSHRC 

1306(1979); Kaiser Steel Corp., 1 FMSHRC 984(1979); Shamrock Coal Co., 

1 FMSHRC 799(1979); Ruston Mining Co., 1 FMSHRC 794(1979). Peabody does 

not object to the judge's failure to fully consider the six statutory 

factors. It argues only that the findings of the judge on those factors 

warrant a lower penalty. Our independent review convinces us that the 

judge did not err in assessing the penalty. 

1684 
-

The judge's decision is affirmed. 

Richard v •. Backley, Commissioner 

'\~Cl'M.w ~~~ \.atQ Marian Pearlman Nease, Commissioner 

c/ 

1685 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1980 

Docket No. YORK 79-94-M 

NEW JERSEY PULVERIZING COMPANY 

DECISION 

On May 16, 1980, the administrative law judge issued a "Decision 

and Order" requiring the operator to pay penalt{es "in settlement of" 

six alleged violations. In a footnote to his decision, the judge 

declared that his disposition was merely "proposed" and stated that he 

would reconsider and afford both parties an opportunity to be heard if 

they so requested. The Secretary filed a petition for discretionary 

review, claiming that the judge had assessed penalties without giving 

the Secretary the opportunity to be heard because, under Commission 

precedent, the judge could not recortsider his decision. The Secretary 

in effect argues that the penalties assessed by the judge are too low. 

We granted the Secretary's petition. We now reverse. 

On the same day that the judge's decision was issued, we issued a 

decision in another case disapproving the judge's method of disposition. 

Peabody Coal Co., 2 FMSHRC 1035, 1 BNA MSHC 2369, 1980 CCH OSHD ,[24,468 

(1980). That decision is controlling here.]:../ In view of our decision 

1/ In Peabody, the judge's decision did not contain a footnote 

characterizing the disposition as merely proposed. We have therefore 

considered whether Peabody is distinguishable. We can find no 

principled distinction. It is quite evident that the judge intended his 

decision here to serve as his final disposition of the proceedings and 

yet to permit him to reconsider. This is precisely what our Peabody 

decision held was inconsistent with the Commission's rules and precedents. 

80-7-2 

1686 
in Peabody, and particularly in view of our decision here, we expect 

that it will--not.-be neeessary to continue to remind the judge that he is 

to decide cases in accordance with the Commission's rules and precedents. 

We also observe that the judge did not give the parties a reasonable 

opportunity to propose a settlement of the case. '!:._/ Finally, in view 

of New Jersey Pulverizing's letter of June 27, l!J80, which asks fhat 

this case be disposed of "without the expense to us or the Government 

of a hearing", we order the; judge to afford the parties· an opportunity 

to propose a settlement before any hearing is scheduled or pre-hearing 

order is issued. 

Accordingly, the judge's decision is vacated. The case is remanded 

to him for further proceedings consistent with this decision. 

'!:._/ The Secretary's proposal for a penalty was received on October 29, 

1979. When the operator initially failed to file a timely answer, an 

order to show cause was issued to the operator on April 22, 1980. New 

Jersey Pulverizing's response to the order was received on May 6, 1980. 

Ten days later, without further proceedings by the judge or the parties, 

the judge issued his decision. 

1687 
Distribution 

Debra L. Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Martin E. Tanzer, Esq. 

New Jersey Pulverizing Company 

390 North Broadway 

Jericho, New York 11753 

Administrative Law Judge Jos~ph B. Kennedy 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike - Building 2 

Falls Church, Virginia 22041 

1688 
FEDERA~ MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ISLAND CREEK COAL COMPANY 

July 9, 1980 

Docket No. BARB 76-297-P 

IBMA No. 77-27 

DECISION 

This is a civil penalty proceeding arising under the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. §801 et seq. (1976 & 

Supp. I 1977). The administrative law judge held that regulations 

adopted by the Department of Interior to implement the civil penalty 

program did not bind the government to an assessment settlement agreement 

where such agreement was entered into because of a mistaken assumption 

of fact on the part of the department's assessment personnel. The judge 

noted that the mistake and the repudiation of the agreement were called 

to the mine operator's attention before payment of the penalty. He 

concluded that the operator was not prejudiced and ordered the case to 

proceed to a full evidentiary hearing. The judge made de novo findings 

and assessed Island Creek $5,000. Appeal was timely filed. 1/ We 

affirm the judge's decision. -

This case was initiated as the result of a fatal accident that 

occurred on January 10, 1975, at an underground coal mine operated by 

Island Creek in Hopkins County, Kentucky. A mechanic employed at the 

mine was fatally injured when the boom of a loading machine fell on him. 

Following an accident investigation, a notice of violation was issued by 

an inspector of the Mining Enforcement and Safety Administration (MESA) 

as authorized by §104(b) of the 1969 Coal Act, which charged Island 

Creek with a violation of 30 C.F.R. §75.1726(b) (1974). That subsection 

provides: 

1/ 

No work shall be performed under machinery or 

equipment that has been raised until such machinery 

or equipment has been securely blocked in position. 

On March 8, 1978, this case was pending on appeal before the 

Secretary of Interior's Board of Mine Operations Appeals (Board) 

under the Coal Act. This appeal is before the Commission for 

disposition under section 301 of the Federal Mine Safety and 

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

1689 80-7-5 
The notice cited the following practice: 

Work was being performed under the conveyor 

boom in a raised position, on the loading machine 

in the four south panel entries No. 1 unit and was 

not blocked into position. 

The inspecto~ failed to indicate on the face of the notice that it 

was being issued as the result of a fatality investigation. The regulations 2/ adopted by the Secretary to implement the civil penalty program 

required MESA's Office of Assessments to prepare and serve on the mine 

operator an initial order of assessment. Due to the omission on the 

face of the notice referred to above, the subject violation was assessed 

as a non-fatal infraction. By applying the point system provided in 

30 C.F.R. §100.3(b) (1975), a penalty of $102 was as.sessed. The penalty 

was further reduced to $78 as the result of a settlement conference 

between a MESA assessment official and Island Creek. During the conference 

a formal assessment agreement was executed, in compliance with §100.6, 

by the representatives of the parties. 

Two weeks later, the Office of Assessments discovered that the 

instant notice of violation involved a fatality and determined that the 

assessment agreement was based on a mistaken assumption of fact on its 

part. On August 14, 1975, before Island Creek had tendered payment, 

MESA wrote Island Creek a letter indicating the mistake and repudiated 

the agreement. Island Creek replied to MESA's letter stating that MESA 

was bound by the assessment agreement and could not unilaterally void 

the agreed penalty of $78. Island Creek then tendered payment of the $78, 

which amount was returned by MESA. NESA reassessed the violation on the 

theory that it contributed to the fatality and assessed a new penalty of 

$5,000. Island Creek refused to pay the second assessment and requested 

a hearing. 

Before the judge, Island Creek moved that the proceeding be dismissed 

with prejudice on the basis that it had previously made payment of an 

amount agreed upon by MESA in full satisfaction of civil penalty liability 

for the subject notice of violation. The judge denied the motion and the 

case proceeded to hearing. 

In a written decision issued on March 24, 1977, th~ judge held that 

a violation as charged occurred, but found that there was no negligence 

on the part of the mine operator. After a lengthy discussion of the 

criteria provided in §109(a)(l) for the assessment of a penalty, the 

judge determined that a penalty of $5,000 was appropriate. 

Island Creek appealed to the Board contending that the judge erred 

in denying its motion to dismiss the proceeding. It further argued that 

imposition by the judge of a penalty of $5,000 was excessive and an 

abuse of discretion in light of the judge's finding that the mine 

operator was not in any way negligent or at fault with regard to the 

fatal accident. 

2/ 30 C.F.R. Part 100 (1975). 

1690 
With regard to the first issue, Island Creek argues that the record 

is devoid of any_ ev_!4_e~e_J7hich would support a finding that MESA 

entered into the agreement because of a good faith mistake. It further 

urges that MESA did not have a right to unilaterally void the assessment 

agreement and that the judge's decision nullifies the purpose of a key 

provision of the assessment regulations in §100~6(d). Under that provision, failure of the mine operator to tender payment of the agreed 

amount within 10 days resulted in the agreed amount being entered as the 

final order of the Secretary. It is Island Creek's position that once 

the assessment agreement for $78 was signed, MESA was precluded from 

further administrat-ive action. We reject these arguments. 

The record does not include testimony from the assessment official 

who signed the agreement regarding his state of mind during the negotiations. It does, however, provide substantial evidence that during 

the conference this official was operating under a mistake of fact. 

Documents of record indicate that, in agreeing to a reduced assessment 

of $78, he was. unaware that the violation was considered by MESA to be 

the cause of the accident, in. this case a fatality. The judge found, 

and we agree, that the regulations under Part 100 were designed to 

provide a mechanism by which an operator could settle-·penalties for 

alleged.violations without the need for a hearing or a decision on the 

merits, but that these regulatiohs were not intended to bind MESA to an 

assessment agreement which was entered into on the basis of a good faith 

mistake that became known to all parties prior to payment. 

One of the six statutory criteria to be considered in assessing a 

civil penalty is" ••• the gravity of the violation ••• " (Section 109(a)(l)). 

In this case that criterion was obviously not considered by the MESA 

assessment official in the context of the actual facts of this case. Nor 

was the inspector who issued the citation present at this meeting. If 

Island Creek was also unaware of all facts material is assessing the 

civil penalty, the agreement of the parties was predicated upon a mutual 

mistake of fact, a firmly established basis for relief and avoidance of 

an agreement. 3/ Further, if the operator's representative was aware 

of all such material facts underlying this citation, and also aware of 

MESA's lack of such knowledge, he had an equitable obligation to so 

inform the MESA assessment official, or take the risk tbat the agreement 

herein could be timely avoided. In either case, the resulting document 

could be and under these facts was properly repudiated. 

1_/ See 54 Am. Jur. 2d Mistake, Accident, or Surprise, §4 et seq. 

(1971). See also Peabody Coal Company, 7 IBMA 318, 325 (1977). 

1691 
Finally, we turn to the contentio_n that the $5,000 penalty assessed 

by the judge was _excessive and an abuse of discretion. In his decision, 

the judge fully considered all six statutory criteria, including the 

lack of negligence on the part of the mine operator, in making the 

assessment. Our independent review convinces us that the judge did not 

err in assessing the penalty. !!.._/ 

Accordingly, the judge's decision is affirmed • 

.!±_/ See Co-op Nining Co., 2 FMSHRC 784 (1980). 

1692 
Distribution 

William K. Bodell, II, Esq. 

Island Creek Coal Company 

2355 Harrodsburg Road 

P.O. Box 11430 

Lexington, KY 40575 

Thomas A. Mascolino, Esq. 

Edward Fitch, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge William Fauver 

FMSHRC 

Skyline Center 2 

5203 Leesburg Pike, 10th Floor 

Falls Church, Va. 22041 

1693 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

_ 1730 K STREET NW, 6TH FLOOR -- .-~ 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE NORTH AMERICAN COAL 

CORPORATION 

QUARTO MINING COMPANY, 

THE NACCO MINING COMPANY 

WASHINGTON, D.C. 20006 

July 21, 1980 

Docket Nos. 

Docket Nos. 

Docket Nos. 

Docket Nos. 

Docket Nos. 

Docket No. 

ORDER 

LAKE 79-118 

LAKE 79-214 

LAKE 79-263 

LAKE 80-64 

LAKE 79-262 

LAKE 80-61 

LAKE 79-266 

LAKE 80-65 

YINC 79-124-P 

LAKE 79-228 

LAKE 79-265 

LAKE 80-31 

LAKE 80-32 

LAKE 79-229 

LAKE 80-95 

LAKE 80-96 

LAKE 79-230 

The Secretary seeks discretionary review of a February 12, 1980 

decision of the administrative law judge. In that decision, the judge 

dismissed 17 civil penalty cases. The petitions in these cases alleged 

26 violations of the respirable dust standard, 30 CFR §70.lOO(b), and 9 

violations of various other standards. Each of the cases contained at 

least one alleged violation of 30 CFR §70.lOO(b). In his February 12, 

1980 decision, the judge dismissed the 17 cases on the grounds 30 CFR 

§70.lOO(b) was invalid and unenforceable. !/ 

On February22, 1980, the Secretary filed a motion requesting that 

the judge reconsider his order vacating the 9 citations that did not 

allege violations of 30 CFR §70.lOO(b). On March 7, 1980, the judge 

corrected the decision. He withdrew the 9 citations and ordered that 

they be incorporated in new cases. The judge cited Commission Rule 

65(c), 29 CFR §2700.65(c)(l979), which.provides that the jurisdiction of 

the judge terminates when his decision is issued, but permits a judge to 

correct inadvertent and clerical mistakes in a decision after it is issued. 

1/ On the same day, the judge also issued a decision in MSHA v. Alabama 

Products, SE 79-110 in which he found that 30 CFR §lOO(b) ~invalid and 

forceable. The Secretary petitioned for review of that decision. The 

Byun enCommission granted the petition on March 6, 1980. 80-7-13 

1694 
The Secretary's petition for discretionary review seeks review 

of a single issUe.: .-Whet--h&- the judge erred in ruling that there is 

no presently enforceable respirable dust standard. The petition was 

filed on April 3, 1980, 51 days after the issuance of the judge's 

decision. The respondents oppose the petition on the grounds it is 

untimely. 

The Act requires that a petition for discretionary review be filed 

within 30 days after the issuance of the judge's decision. 2/ Commission Rule 5(d), 29 CFR §2700.5(d)(l979), states that "filing of a 

petition for discretionary review is effective only upon receipt." The 

Secretary urges us however, to regard his petition, filed 51 days after 

the judge's February 12 decision, as timely. He argues that his motion 

to correct the decision tolled the running of the 30 day period until 

such time as the judge acted upon the motion. Citing Commission Rule 

l(b), 29 CFR §2700.l(b)(l979), which provides that we be guided "so far 

as practicable by any pertinent provision of the Federal Rules of Civil 

Procedure", he states that his motion to correct the decision is equivalent 

to a motion to alter or amend a judgment filed under Fed.R.Civ.P 59(e). 

He states that the courts have held that a Rule 59(e) motion tolls the 

appeal period until such time as the judge rules on -thECmotion. Since 

the judge granted his motion to correct the decision on March 7, 1980, 

he argues that his petition for discretionary review was timely. 

We disagree. Commission Rule 65(c) explicitly provides that the 

jurisdiction of the judge terminates when his decision has been issued 

by the Commission's Executive Director. Section 113 of the Act requires 

that petitions for discretionary review be filed within 30 days after 

the issuance of the judge's decision. Read together, these provisions 

indicate that the 30 day period for filing a petition for review runs 

from the date that a judge's decision is issued by the Executive Director. 

Because a judge has no jurisdiction to alter a decision that has been 

issued except to correct inadvertent and clerical errors, we hold that 

the cprrection of such errors does not toll the period for filing a 

petition for review. 1/ Cf. Capitol Aggregates, Inc., 2 FMSHRC 1040(1980). 

We note in addition that allowing the filing of motions t·1 correct 

to toll the period for filing a petition could threaten __ the smooth 

functioning of the Commission's review process. The statutory scheme 

contemplates that the period for filing petitions and directing review 

will run from the date of the issuance of a decision of a judge 

2/ Section 113(d)(2)(A)(i), 30 U.S.C. §823(d)(2)(i)(Supp. II 1978). 

3! Commission Rule l(b) permits resort to the provisions of the Federal 

Rules of Civil Procedure "on any procedural question not regulated by 

the Act, these Procedural Rules or the Administrative Procedure Act". 

29 CFR §2700.l(b)(l979). Because Commission Rule 65(c) and the Act 

addresses the issue in this case, we do not believe that resort to 

Fed.R.Civ. p. 59(e) on this issue is appropriate. 

1695 
which constitutes his final disposition of the proceedings. 4/ Altering 

those periods.when a motion to correct is filed could create confusion 

about the deadl-ines -for filing and granting petitions and the exercise 

by the Commission of its power to di~ect review on its own motion. 

Moreover, our holding should not hamper the parties in preparing 

petitions for discretion@ry review. Motions to correct errors due to 

inadvertent mistakes do not affect the substance of the judgment nor the 

standing of a party and thus have no bearing upon the merits of an appeal. 

The principle is aptly demonstrated by this case. The removal of the 9 

citations from the.decision and the.order to reinstate them in other cases 

left the substance of the judge's decision -- as to which the Secretary 

was aggrieved -- undisturbed, did not affect the Secretary's standing, and 

had no bearing upon the arguments set forth in the petition for review. 

Accordingly, the petition is dismissed as untimely filed. 

A.~E. Law~'on, Commissioner 

• \ 1\ t r (\ 

"~\G}1YDJ1~u\YlliriJ1 )\D.Olo 

Marian Pearlman Nease, Connnissioner 

4/ Section 113(d)(l) provides: 

An administrative law judge appointed by the Commission 

to hear matters under this Act shall hear, and-make a 

determination upon, any proceeding instituted before 

the Commission • • • assigned to such administrative 

law judge ••• , and shall make a decision which 

constitutes his final disposition of the proceedings. 

The decision of the administrative law judge of the 

Connnission shall become the final decision of the 

Commission 40 days after its issuance unless within 

such period the Commission has directed that such 

decision shall be reviewed by the Conunission. • • • 

[Emphasis added.] 

1696 
Distribution 

David R. Case, Esq. 

North American Coal Corp., etc. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

.Thomas A. Mascolino, Esq. 

Cynthia L. Attwood~ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge Charles C. Moore, Jr. 

FMSHRC 

Skyline Center #2, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

1697 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

- 1730 K STREET NW, _6TH FLOOR 

WASHINGTON, D.C. 20006 

July 25, 1980 

SECRETARY OF LABOR 

on behalf of LARRY D. LONG 

v. Docket No. VA 79-81-D 

ISLAND CREEK COAL COMPANY 

and 

LANGLEY & MORGAN CORPORATION 

ORDER 

Island Creek Coal Company and Langley & Mcrgan Corporation have 

filed petitions for discretionary review of what they believe may be the 

decision of the administrative law judge. We find that the judge's 

final disposition of the proceedings has not yet been issued and that 

the petitions were therefore prematurely filed. 

This is a discrimination case brought by the Secretary of Labor on 

behalf of Larry D. Long against Island Creek and Langley & Morgan 

Corporation ("the operators"). The Secretary alleged that the operators 

violated section 105(c)(l) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §801 et~· (Supp. II 1978)["the Act"], and in his 

complaint requested the following relief: a finding that Mr. Long was 

"unlawfully discriminated against ••• for engaging in actions protected 

under section 105(c)(l)"; an order that the employment record of 

Mr. Long be completely expunged of all references to an unlawfully 

issued discharge; an order directing the operators to "cease and desist 

in ••• discriminatory harassment" of Mr. Long; an order directing the 

payment of Mr. Long's costs and expenses reasonably incurred for and in 

connection with the institution and prosecution of these proceedings; 

and the assessment of civil penalties against each.operator. 

On June 19, 1980, the Executive Director of the Conunission issued a 

document entitled "Decision" that had been transmitted to him from the 

administrative law judge. The decision was lengthy, and contained 

findings of facts and conclusions of law generally unfavorable to the 

operators. The judge's last conclusion of law declared that the 

operators had violated section 105(c) of the Act by certain reassignments. Immediately after this conclusion of la~, appeared the following: 

80-7-18 

1698 
ORDER 

PENDING FINAL ORDER, Applicant shall have 7 days 

to submit a proposed order for relief, with service 

on Respondents. Respondents shall have 7 days from 

such service to file any response to the proposed 

order. 

On July 14, 1980, Island Creek filed a petition for discretionary 

review. Island Creek believes, based on the wording of the judge's 

order and discussions with the judge's office, that the document 

entitled_ "Decision" was not intended to constitute the judge's final 

disposition of the proceeding. It therefore argues the issuance of the 

decision should not be viewed as having begun the running of the time 

period for filing a petition for discretionary review. Island Creek 

notes, however, that this document was transmitted to and issued by the 

Executive Director, and states that "[s]uch action would thereby 

terminate the jurisdiction of the Judge under the provisions of 

[Commission Rule 65(c), 29 CFR] §2700.65(c)." Because Island Creek is 

uncertain of the consequences of these events, it filed this petition to 

protect its right to seek discretionary review by .the-Commission. The 

issue raised by Island Creek is therefore wh~Lher the document issued on 

June 19, 1980, constituted the judge's final disposition of the proceedings. Langley & Morgan's petition for discretionary review, which 

was filed on July lS, alleges that the judge's decisionis erroneous. 

Commission Rule 65 states in part as follows: 

§2700.65 Decision of the Judge. 

(a) Form and content of the Judge's decision. The 

Judge shall make a decision that constitutes his final 

disposition of the proceedings. The decision shall be 

in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all 

the material issues of fact, law or discretion presented 

by the record, and an order. If a decision is announced 

orally from the bench, it shall be reduced to writing after 

filing of the transcript. An order by a Judge approving 

a settlement proposal is a decision of a Judge. · 

(b) Procedure for issuance. The Judge shall transmit 

to the Executive Director his decision, the record (including the transcript), and as many copies of his 

decision as there are parties plus seven. The Executive 

Director shall then promptly issue to each party and each 

Commissioner a copy of the decision. 

(c) Termination of the Judge's jurisdiction; 

correction of clerical errors. The jurisdiction of the 

Judge terminates when his decision has been issued by the 

Executive Director .••. 

Once a judge's decision that constitutes his final disposition of the 

proceedings is issued by the Executive DirectQr, the periods for drafting 

and filing a petition for discretionary review, for the Commission to 

1699 
consider and order review of the judge's decision on its own motion, and 

for the Commission to consider and grant a petition for discretionary 

review begin ·to run:-·sectfon 113(d)(l) and (2). In view of these 

consequences, the careful following of our rules, which were designed to 

ensure the smooth functioning the Commission's review process, is 

essentia.J.. 

Commission Rule 65(a), when read as a whole, requires that the 

decision of the judge contain an order that finally disposes of the 

proceedings. Inasmuch as the order that appears at the end of the 

judge's purported decision does not dispose of the proceeding to any 

extent, the issuance of this decision did not start the running of the 

review periods in section llJ of the Act. The petitions for discretionary 

review are therefore premature. 

Accordingly, the petitions for discretionary review are, in these 

circumstances, dismissed as premature. The Executive Director shall 

return the record to the judge. 

A. E. Lawson, Commis ioner 

j 

\. h\ \Ir ,~ 1\\ 

\\\l}'}-~r}) '· '\. /J',_', ~.U.0._t) .\, ~- r1 Le 

Marian Pearlman Nease, Commissioner 

1700 
Distribution 

Marshall S. Peace, Esq. 

Island Creek Coal Company 

P.O. Box 11430 

Lexington, KY 40575 

James S. Greene, Jr., Esq. 

P.O. Box 995 

Harlan, KY 40831 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Administrative Law Judge William Fauver 

FMSHRC 

Skyline Center, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

1701 
-FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION --~ .-~ _, 

JOHNNY HOWARD 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 29, 1980 

DOCKET NO. SE 80-24-DM 

MARTIN MARIETTA CORPORATION 

DIRECT-ION FOR REVIEW AND ORDER 

- -~·· -· 

The petition for discretionary review filed by Martin Marietta 

Corporation is granted. The case is remanded to the administrative law 

judge to determine whether Martin Marietta Corr0~ation was in fact 

properly served a copy of the complaint of discrimination prior to 

issuance of the order of default. Should he determine that service was 

not properly made, the administrative law judge is directed to conduct 

further proceedings as necessary. 

1702 80-7-21 
Distribution: 

James A. Broderick 

Chief Administrative Law Judge 

1730 K Street, N:w., 6th Floor 

Washington, D. C. 20006 

Elliott D. Light 

Assistant General Counsel 

Martin Marietta Corporation 

6801 Rockledge Drive 

Bethesda, Maryland 20034 

Nathan Kaminski, Jr., Esq. 

Schneider & O'Donnell 

601 Front Street 

P. 0. Box 662 

Georgetown, South Carolina 29440 

Assistant Solicitor, 

U. S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Office of Special Investigations 

MSHA, U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

1703 

Administrative Law Judge Decisions 

July 1 - 31 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHNNY HOWARD, 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Applicant 

1 9 JUN 19BO 

Complaint of Discharge, Discrimination, or Interference 

Docket No. SE 80-24-DM 

MARTIN-MARIETTA CORPORATION, 

Respondent MD 79-93 

ORDER OF DEFAULT 

On November 7, 1979 the Applicant filed a complaint alleging 

discriminatory acts based on § 105(c) of the Federal Mine Safety and 

Health Act of 1977. According to § 2700.43 of the procedural rules 

of the Commission, Respondent is required to answer within 30 days 

after receipt of the complaint. No such answer was_Ieceived. On 

March 26, 1980, an order was issued to Respondent to show cause why 

the relief requested -in the complaint should not be granted. No 

response has been received. 

Therefore, it is ORDERED that Respondent is deemed to have 

admitted the alleged acts of discrimination. It is further ORDERED 

that the Applicant be restored to his former position with backpay 

and interest, and that Respondent compensate the Applicant for all 

costs and expenses (including attorney's fees) reasonably incurred 

by the Applicant. 

1cit kC-5 _£1&,z,·le_/f,l ;:_£ ~ James A. Broderick 

Chief Administrative Law Judge 

Distribution: By certified mail 

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 

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

Blvd., Arlington, VA 22203 

Nathan Kaminski, Jr., Esq., Schneider & O'Donnell, Attorneys for 

Mr. Johnny Howard, 601 Front Street, P.O. Box 662, Georgetown, SC 

29440 

Martin-Marietta Corporation, P.O. Box 1160, Columbus, OH 43216 

1706 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J. P. BURROUGHS & SON, INC., 

Respondent 

June 27, 1980 

Civil Penalty Proceeding 

Docket No. LAKE 80-223-M 

A. C. No. 20-741-5005 

Holly Sand and Gravel Plant 

ORDER OF DISMISSAL 

Four section 104(a) citations were issued to Respondent on September 13, 1979. On January 10, 1980, Respo~dent received-a proposed 

assessment. In the meantime, a conference was held on January 7, 1980, 

in which penalty reductions were negotiated. Respondent states that it 

was told by MSHA personnel to ignore the January 10 assessment notice 

and await a second proposed assessment based on the~reductions negootiated at the conference. On January 14, 1980, the second proposed 

assessment was received by Respondent. Respondent checked the notice of 

contest form (the "blue card") and mailed it back to MSHA on February 13, 

1980. It was received by MSHA on February 15, 1980. 

By corrected order issued April 30, 1980, I granted Petitioner's 

motion to dismiss Respondent's notice of contest. !/ Responqent sought 

Commission review, and the Commission remanded the case to consider 

Respondent's opposition to the motion. I have now considered the affidavit and brief filed by Respondent and the documents previously filed 

by Petitioner and I conclude that the notice of contest must be dismissed as untimely. 

For the purpose of ruling on the motion, I assume that the 30-day 

period began to run when Respondent received the second proposed assessment, that is, on January 14, 1980. Section 105(a) of the Act requires 

the operator to "notify" the Secretary that he wishes to contest the 

proposed assessment within 30 days from the receipt of the Secretary's 

proposal. I construe this to mean that the Secretary must receive the 

notice of contest within the 30-day period. 

The meaning of "notify" is not specified in the text of the Act, 

nor in the regulations dealing with notice of contest, 30 CFR § 100.6(b). 

Section lO(a) of the Occupational Safety and Health Act, 29 U.S.C. 

§659(a), is parallel to section 105(a). The word "notify" in that section has been construed by the Secretary of Labor to mean that the date 

!/ The motion was framed as a motion to dismiss Petitioner's own petition for assessment of civil penalty, but I treated it as a motion to 

dismiss the notice of contest. 

1707 
notice of contest is mailed controls. 29 CFR § 1903.17; Secretary of 

Labor v. J.D. lUμm_~-0nst:r-tiction Co., 4 OSHC (BNA) 1255 (1976). It is 

significant that the Secretary did not place the same interpretation on 

"notify" in regulations. promulgated under the 1977 Act. The difference 

may be attributed to the fact that an employer has 15 working days to 

give notice of contest under OSHA instead of 30 calendar days. Departure from the ordinary meaning of the word "notify" was thought justified by the rigors of complying with such a short notice of contest 

period. 

It is the ordinary meaning of the word "notify" which convinces me 

that notice of contest was untimely in this case. To notify one of a 

fact is to make it known to him. Black's Law Dictionary, (5th ed. 

1979): 66 C.J.S. Notify § 23. And when a statute requires notice to be 

given, it is the general rule of law that actual personal notice is 

required. 58 Am. Jur. 2d Notice § 22. 

The time for filing charges under Title VII of the Civil Rights Act 

of 1964 begins to run when the affected employee is notified of EEOC's 

dismissal. In construing this language, a District Com:·_t said: 

While legally Congress might have made the mailing, for 

example, of the notice of EEOC's dismissal the time of 

initiation of the 90-day period during which the employee 

could sue and cut off such opportunity at the end thereof, 

it did not do so. The employee must be notified; the 

notice must be given to him or her. There is nothin_g in 

the legislative history of the statute which points to 

any contrary construction or meaning. There must be a 

receiving of the intelligence that the charge was dismissed by EEOC. To notify is to make known and usually 

in law connotes a notice given by some person, whose duty 

it was to give it, to some person who ·was entitled to 

receive it or be notified. Notice is given when it is 

connnunicated to another. 

Reeves v. American Optical Co., 408 F. Supp. 297, 301 

(W.D.N.Y. 1976). 

Although the notice of contest involved herein was mailed on the 

30th day after receiving the second proposed assessment, it was not 

received by MSHA until more than 30 days had elapsed. I conclude that 

MSHA was not timely notified of Respondent's intention to contest. 

Therefore, the notice of contest is hereby DISMISSED and the proposed assessment of $440 is deemed the final order of the Commission. 

/7 L. 

)

cl--t /k-.?.S ,zl.l!J~-oc6- -1--1 <!J/(!_ 

James A. Broderick 

Chief Administrative Law Judge 

1708 
Dkt 4 

Distribution: ___ , - --

Robert J. Krupka, Esq., Counsel for J. P. Burroughs & Son, Inc., Cook, 

Nash & Deibel, 1201 Second National Bank Building, Saginaw, MI 48607 

(Certified mail) 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (By personal service) 

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

Arlington, VA 22203 

1709 
- FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

1 JUL 1900 ~~~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

ex rel. Alfred A. Santistevan, 

)• 

) 

) 

Applicant, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Application for Review of 

Discrimination 

v. DOCKET NO. WEST 80-85-D 

C.F.& I. STEEL CORPORATION, 

Mine: Maxwell 

Respondent. 

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

APPEARANCES: 

DECISION ANP ORDER 

Thomas E. K~rson, Esq., Office of the Regional Solicitor, 

United States Department of Labor, 

for the Applicant, 

Richard L. Fanyo, Esq., Welborn, Dufford, Cook, and Brown, 

for the Respondent. 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

This action was brought by Applicant, the Secretary of Labor, Mine 

-- Safety and Health Administration (MSHA) [hereinafter "the Secretary"], on 

behalf of Alfred A. Santistevan [hereinafter. "Santistevan"] pursuant to the 

provisions of section 105(c)(2) 1 of the Federal Mine Safety and Health Act 

l/Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 

- U.S.C. § 815(c)(2), reads in pertinent part: 

"Any miner ••. who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violation of the subsection may, within 60 days 

after such violation occurs, file a complaint with the 

Secretary alleging such discrimination. • • • If upon • 

1710 
of 1977, 30 U.S.C. §801 !!. seq. (1978) [hereinafter cited as "the 1977 

Act" or "the Act"]. The Secretary alleges that Santistevan received two 

suspensions, one for 3 days and one for 30 days, because he made complaints 

to his foreman of unsafe conditions in the coal mine in which he worked. 

The two unsafe conditions alleged in the Complaint of.Discrimination filed 

by Applicant were that: (1) "on March 29, 1979, the tram motor of the No. 3 

Lee Norse Hardhead Miner in Unit 3 was pulling and popping and was unsafe," 

and (2) "Romero [Jose M. Romero, Assistant Mine Foreman, hereinafter 

"Romero"] ordered Santistevan to put up an I-beam weighing approximately 600 

pounds by himself." 

The Respondent denies that it discriminated againsCSantistevan, and 

alleges that he was issued the 3 day suspension on June 26, 1979, because of 

insubordination and the 30 days suspension on June 27, 1979, because he 

instigated an unauthorized work stoppage. 

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

Colorado, on March 4, 5, and 6, 1980. The completion of the filing of post 

hearing briefs took place on June 23, 1980. 

GOVERNING PRINCIPLES 

Burden of Proof. 

The Applicant as the proponent of the order has the burden of proof, to 

a preponderance of the evidence, that the Respondent discriminated against 

fn 1 cont'd 

. . investigation, the Secretary determines that the provisions of this subsection have been violated, he shall 

immediately file a complaint with the Commission .•. alleging 

such discrimination or interference and propose an order 

granting appropriate relief. The Commission shall afford an 

opportunity for a hearing . . . and thereafter shall issue an 

order, based upon findings of fact, affirming, modifying, or, 

vacating the Secretary's proposed order, or directing other 

appropriate relief. * * * " 

1711 
Santistevan in violation of section 105(c)(l) 2 of the Act. 30 U.S.C. 

§ 815(c) (2), 5 -U. s-.-c~· f" 5%(d). The preponderance of the evidence is 

defined as the greater weight of evidence or evidence which is more credible 

and convincing to the mind. Button v. Metcalf, 80 Wis. 193, 49 N.W. 809 

(1891). It is also defined as that evidence which best accords with reason 

and probibility. u~s. v. McCaskill, 200 F. 332 (1912). 

Elements of Proof. 

The Applicant must establish that he was engaged in "protected 

activity," that is, that he made complaints relating to mine safety, and 

that Respondent took discriminatory action against him because of this 

protected activity in which he engaged. Munsey v. Motton, 507 F.2d 1202, 

1209 (D.C. Cir. 1974). The safety complaints made must be shown to be " •. 

. the moving force but for which the discriminatory action would not have 

occured." Shapiro v. Bishop Coal Company, 6 !MBA 28, 59 (1976). 

FINDINGS OF FACT 

1. Within approximately two weeks prior to March 29, 1979, Applicant 

Santistevan, a continuous miner machine operator for the Respondent, 

2/Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 

- U.S.C. § 815(c)(l), reads in pertinent part: 

"No person shall discharge or in any manner discriminate 

against ... or otherwise interfere with the statutory 

rights of any miner . . . in any coal or other mine subject 

to this Act because such miner . . . has filed or made a complaint notifying the operator or the operator's agent ... 

of any alleged danger or safety or health violation in a 

coal or other mine, ... or because of the exercise by such 

miner . . . on behalf of himself or others of any statutory 

right afforded by this Act." 

1712 
complained-on several occasions to his section foreman, Jose Romero, 

___ , - --

that the track of a certain continuous miner machine was pulling to the left 

and that there was something wrong with it. (Tr. I-116,117) 3 . 

2. As a result of the complaints of Santistevan prior to March 29, 

1979, in regard to the continuous miner, "take up jacks" were replaced by 

Respondent, two times before March 29, 1979, and once on the graveyard shift 

on March 29-March 30, 1979. (Tr. II-84). 

3. A safety inspection of the mine was made by MSHA inspectors on 

March 29, 1979. (Tr. I-19,20). 

4. During the inspection on March 29, 1979, after discovering that the 

continuous miner had not been operating properly, an MSHA inspector 

requested that the machine be operated for demonstration. (Tr. I-22,23). 

5. An MSHA inspector issued a citation to the Respondent for the 

following alleged safety violation On March 29, 1979: 

"The Lee Norse . • . was not maintained 

in a safe operating condition in that 

the motor for the cutting head was loose 

and the left track was sticking. • .. " 

(Tr. I-27). 

6. A hazard posed by the use of the continuous miner at the time of 

the inspection was the possibility of pinning someone against the rib. (Tr. 

I-25). 

3/The transcripts of the hearing are contained in three volumes, with each 

volume renumbered from the first page. Therefore, references to the 

transcript will show in roman numeral the volume referred to, followed by 

the page number of that volume. 

1713 
7. After the citation was issued on March 29, 1979, Romero asked 

his crew, including_S-anti;tevan, to come to him first with complaints before 

talking to the (MSHA) inspectors. (Tr. III-40). 

8. Between March 29, 1979, and April 25, 1979, Romero told Santistevan 

to put up a beam 16 feet long by 6 inches thick, weighing approximately 600 

pounds, as a roof support, which Santistevan assumed was to be accomplished 

with the help of the continuous miner machine and the work crew. (Tr. 

I-125,126). 

9. The beam was not installed as requested by Romero and the incident 

resulted in an agrument between Santistevan and Romero, Santistevan 

concluding that Romero wanted Santistevan to put the -oea~ up by himself. 

(Tr. I-126). 

10. On June 25, 1979, Santistevan was operating the continuous miner in 

an area where, because of the condition of the roof, the use of 6 foot roof 

bolts and straps were required for roof support. (Tr. I-133,134; Tr. 

III-122). 

11. After Santistevan had made a cut with the continuous miner and 

because it was determined that more height was needed in order to install 

the 6 foot roof bolts, Romero told Santistevan to cut down more of the top. 

(Tr. II-214). 

12. Santistevan took down a small additional amount of top from the 

roof. Romero told him it was still not enough, and that he should take 

down 4, 5, or 6 inches more. (Tr. II-217). 

1714 
13. Santistevan again cut down. m:>re top, but as he was backing out 

of the area the cuttlng-h~ads-~f the miner continued to operate and cut a 

strap which had been put in place as roof support. (Tr. II-218). 

14. After cutting the strap, Santistevan brought the cutting heads of 

the continuous miner down, apologized to Romero, and stated that it. was an 

accident. (Tr. I-134) .. 

15. Romero had stopped the continuous miner by means of pushing the 

emergency stop switch on the left side of the machine and accused 

Santistevan of intentionally cutting the strap. (Tr. 11-225, 226). 

16. The continuous miner machine is equipped with a "panic bar" which, 

when activated by the operator, stops all movement of the-machine, including 

the cutting heads. (Tr. 11-223). 

17. As a result of the incident involving the roof strap, Romero left a 

note for the general mine foreman stating that Santistevan "had cut down a 

strap while he was backing the miner out of the face, that it was uncalled 

for, [that there] was no need for it, and that he did it in anger." (Tr. 

II-116). 

18. On June 26, 1979, Santistevan was given a 3 day suspension by the 

Respondent for alleged insubordination. (Tr. I-138). 

19. On June 27; 1979, a strike occured at Respondent's mine where 

Santistevan worked. Respondent issued a 30 day suspension to Santistevan 

for allegedly instigating this strike. (Tr. 111-146-148,162,163). 

20. In addition to the 30 day suspension given to Santistevan, 

Respondent issued a 30 day suspension to another miner who had also 

1715 
allegedly instigated the strike, issued 10 day suspensions to um.on 

repr·esentatives who participated in the strike, and issued 5 day suspensions 

to all others who participated, making a total of 51 suspensions. (Tr. 

II-149; Exhibit V). 

21. At the time the suspensions were recommended, Respondent's manager 

of labor relations had no prior knowledge of any safety complaints having 

been made by Santistevan. (Tr. II-150). 

DISCUSSION AND ADDITIONAL FINDINGS OF FACT 

The Respondent admits in its post hearing brief that Santistevan was 

engaging in protected activity when he made complaints about the continuous 

miner machine, and that the two suspensions would constitute discriminatory 

action if they had been imposed because of protected activity. The 

Respondent argues that the "I-beam incident" did not constitute protected 

activity. 

Assuming that complaints made involving the continuous miner and the 

I-beam incident both constitute protected activity, I find that the evidenc1 

is not convincing that the protected activity was the moving force but for 

which the suspensions or discriminatory action would not have occured. The 

evidence is convincing that the 3 day suspension was issued because of the 

alleged insubordination of Santistevan, and that the 30 day suspension was 

issued because he allegedly helped to instigate a strike. 

After the citation was issued by MSHA in regard to the continuous 

miner, it was perfectly reasonable for Romero to tell his crew t0 come to 

him first with safety complaints. He would then be able to take care of the 

1716 
problem and, as he testified, keep from receiving citations. The 

evidence is undisp~-ted_t.h;t he did not know about the loose motor used for 

the cutting head of the miner. However, he did know about the problem with 

the track of the miner, and general unsuccessful attempts were made to 

remedy the problem before the inspection which resulted in the issuance of 

the citation. 

The evidence shows that the I-beam incident was of no particular 

significance with regard to the question of discrimination. Both Romero and 

Santistevan agreed that no one could possibly put the 600 pound beam in 

place by himself. Thus, no one could seriously conclude that Romero ordered 

Santistevan to accomplish the job by himself, but that he ·intended for 

Santistevan to use the men and machine available to do the job. When this 

was not done, an argument ensued between Santistevan and Romero. 

Moreover, the safety complaints involving the continuous miner and the 

I-beam incident were too remote to be considered to be the moving force but 

for which the suspensions would not have occured. The incident involving 

the continuous miner took place approximately 3 months before the 3 day 

suspension. The I-beam incident took place at least 2 months before the 3 

day suspension. There is no causal connection between those incidents and 

either of the suspensions. There is evidence that Santistevan and Romero 

argued about the problem involving the I-beam, but at the end of the 

argument both expressed apologies to each other. (Tr. II-200). 

1717 
The 3 day·suspension is conclusively shown to have been issued 

because of the alleged l:nsubordination. Romero testified that Santistevan 

became angry when he was told to cut down additional top after two 

attempts. The only reasonable interpretation of Santistevan's conduct 

involving the strap cutting incident was that he got angry at Romero for 

ordering him to make a third try with the continuous miner, backed out of 

the cut too far, and accidently cut the strap. The continuous miner machine 

could have been stopped immediately 'by use of the panic bar. In fact, 

Romero had to activate the emergency stop button to turn off the miner. I 

conclude that the motive of the Respondent in issuing the 3 day suspension 

was not for accidently cutting the strap or for protec~ed activity, but for 

alleged insubordination. As to whether or not Santistevan was in fact 

insubordinate, that issue is not relevant for me to decide. 

As to the 30 day suspension, there is no evidence that it was prompted 

in retaliation against Santistevan as a result of his engaging in protected 

activity. The manager of labor relations for the Respondent did not know of 

any safety complaints by Santistevan when he recommended the suspension. 

Moreover, other than the length of the suspension, Santistevan was not 

singled out, but was included in a group of 51 employees suspended by the 

Respondent for participating in the allegedly unauthorized strike. The 

evidence does not show that the moving force was the safety complaints, but 

for which Santistevan would not have received a 30 day suspension. I am not 

making any finding as to whether Santistevan did, in fact, instigate an 

unauthorized strike. Rather, I conclude that Santistevan received the 30 

day suspension because the Respondent concluded, rightly or wrongly, that he 

did do so. Thus Respondent did not issue the 30 day suspension as 

retaliation against Santistevan for engaging in protected activity. 

1718 
C0NCLUSIONS OF LAW 

1. At all times relevant to these proceedings, the undersigned 

Administrative Law Judge has jurisdiction over the parties and subject 

matter pursuant to the Federal Mine Safety and Health Act of 1977. 

2. The Applicant has failed to sustain the burden of proof to a 

preponderence of the evidence that Respondent discriminated against him in 

violation of Section 105(c)(l) of the Act. 

ORDER 

The proposed order of the Secretary is vacated and the complaint of 

discrimination is dismissed. 

- ----· 

Distribution: 

Office of the Solicitor, United States Department of Labor, 1585 Federal 

Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Thomas E. 

Korson, Esq. 

Welborn, Dufford, Cook, and Brown, 1100 United Bank Center, Denver, Colorado 

80290, Attention: Richard L. Fanyo, Esq. 

1719 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

--- - OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520~ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 JUL 1980 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (HSHA), Docket No. DENV 79-424-PM 

Petitioner A.C. No. 05-00604-05001 

v. 

DAY MINES, INC. , 

Respondent 

Docket No. DENV 79-425-PM 

A.c. No. 05-00604-05002 

Sherman Tunne-1 Mine 

DECISION 

Appearances: James Abrams, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Piatt Hull, Esq., Wallace, Idaho, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

The above cases were heard before me in Leadville, Colorado, on 

Tuesday, March 11, 1980. They involve five citations issued to Respondent 

during two inspections, one conducted October 3, 1978, and another conducted October 11 and 12, 1978. Two citations were settled at the hearing. 

Citation No. 331792 from Docket No. DENV 79-424-PM was settled for $84. It 

alleged a violation of 30 C.F.R. § 57.6-177 concerning proper procedures for 

the disposal of misfires and carried an assessed penalty of $12. Citation 

No. 331462 from Docket No. DENV 79-425-PM was settled for the assessed amount 

of $60. That citation was for loose ground (roof) observed by the inspector 

in violation of 30 C.F.R. § 57.3-22. The settlements were approved. 

The parties submitted several stipulations at the hearing addressing the 

six criteria of section llO(i) for assessing -penalties under the Act. I 

find that the operator's history of past violations is moderate, that any 

penalties assessed would not affect Respondent's ability to continue in 

business, and that Respondent abated the citations in good faith. The issues 

of negligence and gravity will be considered separately for each citation. 

Respondent employs 89 employees at its Sherman Tunnel operation out of which 

80 are miners. It operates two mines and produces approximately 133,136 production tons per year at the.Sherman Tunnel Mine making Respondent a mediumsized operator. 

1720 
Docket No. DENV 79-424-PM 

The first citation» 'No:-331787, alleged that a violation of section 

57.3-22 was found in the Hilltop Lateral. Section 57~3-22 requires all 

working places, haulageways and travelways to be periodically inspected 

for loose roof and scaled as necessary. The Hilltop Lateral is a deadend entry off the main tunnel extending about 300 feet. A sump pump is 

located approximately 30 feet in from the intersection with the main 

tunnel. 

The inspector obs.erved loose ground starting "about the area of the 

pump" and continuing 300 feet into the lateral (Tr. 43-44). The operator's 

witness saw no loose ground in the Hilltop Lateral even though it was his 

habit to look for it when inspecting the sump pump (Tr. 262). He never 

went past the sump pump, however, as he had been instructed to "stay out of 

there" (id.). This same area was later barred down and barricades were 

erected~ abate the citation (Tr. 265-266). 

The evidence shows there was loose roof in the Hilltop Lateral at least 

in the area between the sump pump and a point 300 feet into the tunnel. The 

inspector could not clearly remember seeing loose ground in the area between 

the pump and the lateral's intersection with the main tunnel (Tr. 43-44). 

This area between the sump pump and the entrance to the late~al was clearly 

a work area, as miners regularly inspected the pump (Tr. 261). But the 

Secretary failed to sustain its burden of proof regarding the presence of 

loose ground in this area. Therefore, unless the area between the sump pump 

and the dead end of the lateral is either a work area, haulageway or travelway there was no violation of section 57.3-22. 

The area past the sump pump contained tracks and was regularly used for 

storing cars (Tr. 19-A, 34). The inspector testified that an operator's witness told him during the inspection that the area was not barricaded because 

it was needed for switching cars and storing equipment, which necessitated 

frequent trips into the area by miners (Tr. 20). The operator did not rebut 

these allegations. Based on this evidence, I find that the area beyond the 

sump pump was a work area and that loose roof was present. It was testified 

that this condition develops over a period of 6 months to 2 years, which 

shows negligence on the part of the operator (Tr. 23). This condition was 

grave as serious injury often results from roof falls. A -penalty of $80 is 

assessed. 

Citation No. 331791 is an alleged violation of 30 C.F.R. § 57.6-177 

pertaining to misfire disposal procedures. It is alleged that a misfire 

occurred at the P25-410 stope and that the operator failed to danger off 

the area and dispose of the misfire by either washing out the borehole, 

attempting to refire the hole or by inserting new primers. 

The inspector testified that he saw the blasting agent ANFO */ and 

blasting wires in the fired hole. The presence of both indicates-that 

all of the explosive did not detonate and this constitutes a misfire 

*f Ammonium nitrate and fuel oil. 

1721 

... 

'"· 
(Tr. 48). He testified in addition that the ANFO was white and the rock 

face was gray so_th~t- -th-e ANFO was visible (Tr. 74). The operator's witness 

testified on several occasions that he did not see any blasting agent 

(Tr. 198, 199, 200). This witness washed out the hole with water after 

the citation was issued and again testified that he saw no ANFO or prell (Tr. 

202). This witness, who had also drilled and blasted this hole, testified 

that due to the vuggy nature of the ground, it was possible that rock could 

have caved into the drilled hole after it had been loaded, separating the 

prell so that the portion in front of the fallen rock detonated while the 

prell behind the rock fall did not. But he concluded that, in his ~pinion, 

any remaining ANFO would have detonated a short time thereafter as a result 

of the surrounding holes detonating (Tr. 197). 

Since the inspector testified in detail about the hole, i.~., that the 

leg wires had been shunted or twisted together and stuffed back into the 

hole, which was covered with a rock (Tr. 48), and painted with a red circle 

(Tr. 52), I am inclined to believe that he also saw ANFO in the blasting hole. 

A misfire is a dangerous condition and can cause fatal injuries. I find that 

the operator should have followed the procedures in the standard and that in 

failing to do so its negligence was high and I assess the--proposed penalty 

of $50. -

Docket No. DENV 79-425-PM 

Citation No. 333814 alleged a violation of section 57.6-1 which requires 

detonators to be stored in magazines. The essence of this violation is that 

two miners who were blasting the face erred when they left a box of detonators 

in the roadway leading to the face until preparation of the blasting holes 

had been completed. 

Two contract blasters were preparing the face for blasting when the citation was issued. Preparation for blasting consists of drilling a certain 

number of holes in a designated pattern and loading those holes with detonators and explosives. In this case, the miner who had finished drilling went 

to get the detonators while the other miner, who testified at the hearing 

completed drilling his part of the face, which he estimated took 15 minutes 

(Tr. 130). The inspector testified on cross-examination that the detonators 

were in the roadway for a period of 25 minutes (Tr. 272). 

There is a factual dispute about the location of the box of detonators. 

Three operator's witnesses testified that the box was next to the rib and 

not in the roadway. The inspector testified that the box of detonators was 

in the track in the roadway where it could be run over. The inspector was 

not asked when he was called back to the stand to rebut the testimony of the 

operator's witnesses. I find that the box of detonators was next to the rib 

and not in the roadway. 

There was also some dispute about whether the container for the detonators was a magazine. "Magazine" is not defined in the regulations so both 

parties referred to other explosives standards in -an attempt to define the 

1722 
word "magazine." The inspector stated that while he was not sure the detonator container conformed to the standard, he did not remember seeing any 

exposed metal, which-means.that-the box was properly constructed of nonconductive materials (Tr. 104). 

The overall procedure described by the blasters was a reasonable one. 

I find that the length of time the box of detonators was lying next to the 

rib, whether it was IS minutes or 25 minutes, did not constitute storage 

of the detonators in violation of the standard. · The Government has not met 

its burden of proving a violation in this case and.Citation No. 333814 is 

accordingly vacated. 

ORDER 

tt is hereby ORDERED that the operator pay to MSHA within 30 days of the 

date of this decisionthe sum of $274. 

Distribution: 

Charles c. Moore, Jr. 

Administrative Law ._JμdgeJames Abrams, Esq., Office of the Solicitor, U.S. Department of Labor, 

1585 Federal Building, 1961 Stout Street, Denver, CO 80204 (Certified Mail) 

Piatt Hull, Esq., Hull & Hull, Chartered, P. O. Box 709, Wallace, 

Idaho 83873 (Certified Mail) 

1723 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

2 JUL 1980 ~~~~~~~~~~~~~~~~) 

SECRET ARY OF .. LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

v. 

Petitioner, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

BORS BERRY CONSTRUCTION COMPANY, INC.,) 

Respondent. ) 

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

) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-174-M, 

A/O No. 41-01505-05005 

DOCKET NO. CENT 79-210-M 

A/O No, 41-01505-05006 

DOCKET NO. CENT 79-356-M 

A/O No. 41-01505-05008H 

Mine: El Paso Quarry and Plant 

DECISION AND ORDER 

APPEARANCES: Fred J. Haas, Esq., Office of the Solicitor, United States 

Department of Labor, Dallas, Texas, 

for the Petitioner, 

James H. Luckett, Esq., El Paso, Texas, 

for the Respondent. 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

These proceedings are brought pursuant to section 110, 30 U.S.C. 

--

§ 820, of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq. (1978). The Petitioner seeks an order assessing proposed civil 

monetary penalties against the Respondent for violations alleged in five 

citations. By way of answer the Respondent did not deny the violations 

alleged, but challenged the amount of penalties proposed by the Petitioner. 

The cases were consolidated and a hearing was held in El Paso, Texas on 

April 15, 1980. The opportunity to file post hearing briefs within 30 days 

after the transcript was completed was allowed, but neither party elected to 

do so. 

1724 
The -citations will be discussed in the same order as presented at 

the hearing. 

FINDINGS OF FACT 

1. At all times relevant to this proceeding, Respondent operated a 

rock crushing facility in El Paso, Texas. 

2. A duly authorized representative of the Petitioner, an MSHA 

inspector, issued citations and a withdrawal order based upon five alleged 

violations observed during the course of inspections of the facility on 

March 2, 1979, March 7, 1979, and April 26, 1979; all of which are the 

subject of these proceedings. 

3. The imposition of civil monetary penalties in these proceedings 

will not effect Respondent's ability to continue its business. 

4. Production at Respondent's facility consisted of approximately 

33,800 production tons or manhours per year (Tr. 8). 

5. Respondent has not had a significant history of previou.s 

violations. (Tr. 77). 

1979. 

DOCKET NUMBER CENT 79-174-M 

CITATION NUMBER 161218 

This citation alleges a violation of 30 CFR § 56.6-441, on March 2, 

I/Mandatory. When vehicles containing explosives or detonators are parked, 

- the brakes shall be set, the motive power shut off, and the vehicle shall 

be blocked securely against rolling. 

1725 
6. A pickup truck containing explosives was parked on an incline 

of 20 degrees on·-~es_Q.c;>i::ident..!s property and the wheels of the vehicle were 

not blocked. (Tr. 18, 19, 156). 

Blasting activities were taking place on Respondent's property and the 

evidence was that the blasting was under the supervision of someone other 

than an employee of the ~espondent. Although the Respondent attempted to ! 

show that annnonium nitrate is not an explosive, the MSHA inspector on 

rebuttal testified that it was not the ammonium nitrate that he was 

referring to in the citation as being the explosive, but the four boxes of 

dynamite which were also located in the truck bed. The inspector further 

testified that the truck could have slipped out of gear_, __ allowing the truck 

to roll down the hill, possibly striking other objects or crossing a public 

highway located approximately 300 yards away. The situation could have 

resulted in a fatal explosion. 

The citation should be affirmed. 

CITATIONS NUMBER 160293 and 160294 

2 Both of these citations allege a violation of 30 CFR § 56.9-2 . 

7. On March 7, 1979, two front end loaders, in actual operation at the 

time they were observed by the MSHA inspector, had no audible backup signal 

alarms working. (Tr. 48). 

1_/Mandatory. Equipment defects affecting safety shall be corrected before 

the equipment is used. 

1726 
8. The front end loaders were loading trucks from stock piles of 

rock material located- at Respondent's crusher. (Tr. 48). 

Respondent's safety director, who accompanied the MSHA inspector on the 

inspection, also testified that the backup signal alarms were not working. 

(Tr. 113). He further testified that there was difficulty in keeping the 

backup alarms in operation because they were frequently disabled by 

employees who became annoyed at their sound. The Respondent was very prompt 

in abating the two citations issued, completing repairs within one-half hour. 

(Tr. 113). 

The safety hazard involved was the inability of the loader operator to 

observe persons behind him while he backed up the machine. The only worker 

that normally would have been exposed to the danger was the plant clean-up 

man. (Tr. 55). 

These two citations should be affirmed. 

DOCKET NUMBER 79-210-M 

CITATION NUMBER 160295 

3 This citation alleges a violation of 30 CFR § 56.9-11 . 

9. On March 7, 1979, an MSHA inspector observed a front end loader in 

operation at the stock pile area on Repondent's property, and its windshield 

was cracked. (Tr. 59). 

3/Mandatory. Cab windows shall be of safety glass or equivalent, in good 

- condition and shall be kept clean. 

1727 
10. The windshield was approximately 3 feet by 4 feet. The crack, 

which had a spider web efrect, was in the center and extended out 24 to 36 

inches. (Tr. 59, 60). 

The MSHA inspector testified that there were haul trucks in the area 

in which the front end loader was working, and that the operator's vision 

was impaired due to the condition of the windshield. There was a danger of 

the operator running the loader into an unseen vehicle. The Respondent 

abated the citation by replacing the window the same morning that the 

ciation was issued. 

The citation should be affirmed. 

DOCKET NUMBER CENT 79-356-M 

CITATION NUMBER 160306 

4 This citation alleges a violation of 30 CFR § 56.15-5 . In 

connection with the citation the MSHA inspector issued a withdrawal order. 

11. On April 26, 1979, an MSHA inspector, while accompanied by 

Respondent's safety diretor, observed three employees of the Respondent 

inside the feeder bin of the primary crusher throwing rocks down toward the 

jaws of the crusher. (Tr. 64). 

12. The jaws of the crusher were in operation at the time of the 

incident, and the employees were not wearing any safety b~Jts or lines. 

(Tr. 68). 

4/Mandatory. Safety belts and lines shall be worn when men work where there 

- is a danger of falling; a second person shall tend the lifeline when bins, 

tanks, or other dangerous areas are entered. 

1728 
The jaws. of the crusher were about 4 feet wide and about 6 feet in 

length. The jaws-"{)pen· ·at-- the top to about 3 feet in width and a feeder belt 

carries rock material to this opening. The employees were standing on the 

rocks located above the feeder belt, but the feeder belt was not operating~ 

The three employees were approximately 6 or 7 feet from the mouth of the 

operating jaw crusher. (Tr. 70). 

The inpector issued the withdrawal order, and the three employees left 

the bin within about 30 seconds. The inspector concluded, and I agree, that 

the condition was one which could have reasonably been expected to cause 

death or serious physical harm before such condition could have been abated. 

The employees had placed themselves in that dangerous location before, even 

though it was not permitted by Respondent's safety regulations unless the 

entire crusher was "locked out." It would have taken several minutes to 

lock out the equipment, more than enough time for the three employees to 

have received fatal injuries. 

The citation and withdrawal order should be affirmed. 

I find the facts to be as stated in paragraphs number 1 though 12, and 

in addition find the following: 

13. Respondent's business is a small operation. 

14. The Respondent demonstrated good faith in achieving rapid 

compliance after notification of the violations. 

15. The Respondent was negligent in that the violations resulted from 

the failure.of the Respondent to exercise reasonable care to prevent the 

conditions or practices which caused the violations, and which Respondent 

knew or should have known existed. 

1729 
16 .. The gravity of the violation involving Citation Number 160306 

was serious, and-tne-gr;vity of the other violations was not serious. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of this proceeding. At all time relevant, 

Respondent was subject to the provisions of the Federal Mine Safety and 

Health Act of 1977. 

2. The Respondent violated the regulations cited in Citations Number 

161218, 160293, 160294, 160295, and 160306. 

ORDER 

-- The withdrawal order issued on April 26, 1979, aria all of the above 

citations are AFFIRMED, and based upon the criteria set forth in section 

llO(i) of the Act the penalties are as follows: 

CITATION NUMBER 

161218 

160293 

160294 

160295 

160306 

AMOUNT 

$150 

25 

25 

30 

500 

It is further ordered that the Respondent pay the total penalties 

in the above amount of $730 within 30 days from the date of this 

decision. 

1730 
Distrubition: 

Office of the Solfcitor~ United States Department of Labor, 555 Griffin 

Square Building, Suite 501, Dallas, Texas 75202, Atterition: Fred J. Haas, 

Esq. 

James Luckett, Esq., 2226 Myrtle, El Paso, Texas 79901 

. --·-· 

1731 

... 

;.: 
FEDER..4L MINE SAFETY AND HEALTH REVIEW-COMMISSION 

--- -OFFICE- OF ADMINISTRATIVE I.AW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

iii>-756-6230 

... 8 JUL 1990 

SECRETARY OF LABOR, 

'MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Civil Penal~y Proceeding 

Docket No. PENN 79-142 

Petitioner A.C. No. 36-06100-03004 

Vo 

Solar No. 9 Mine 

SOLAR FUEL COMPANY, 

Respondent 

SUMMARY DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Petitioner; 

James L. Custer, Manager, Safety and Health, Solar Fuel Company, 

Somerset, Pennsylvania, for Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section l!O(a) of the Federp.l 

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

to assess a civil penalty against Solar Fuel Company (hereinafter Solar) for a 

violation of a mandatory safety standard. The case is presently at issue upon 

the filing of cross motions for summary decision by the parties. 

This matter involves the alleged violation of 30 C.F.R. § 75.503, failure 

to maintain in permissible condition all electric face equipment required to 

1732 
be permissible "which is taken into or used inby the last open crosscut." 

Two citations were issued in May 1979, for the alleged violation of the above 

regulation. Solar contends that the citations are invalid and should be 

vacated. MSHA contends that the citations are valid and a civil penalty 

should be assessed. 

ISSUE 

Whether a citation under 30 C.F.R. § 75.503 may be issued for electric 

face equipment which is intended for use in or inby the last open crosscut 

when such equipment is not in permissible condition when cited outby the 

last open crosscut. 

APPLICABLE LAW 

30 C.F.R. § 75.503 provides as follows: "The operator of each coal mine 

shall maintain in permissible condition all electric face equipment required 

by §§ 75.500, 75.501, 75.504 to be permissible which is taken into or used 

inby the last open.crosscut of any such mine." 

STIPULATIONS 

The parties stipulated the following: 

1. On May 3, 1979, and May 4, 1979, duly authorized representative of the Secretary of Labor, coal mine inspector Earl 

Miller, performed a regular quarterly inspection at the Solar 

Fuel Company's Solar No. 9 Mine. 

2. During the course of his inspection on May 3, 1979, 

Inspector Miller observed that a Jeffrey mining machine 

located in an intake air course outby the last open crosscut, 

was not in permissible condition. (See Citation No. 0617857, 

1733 
attached hereto as Exhibit No •. G-1). He also observed a roof 

bolting maCh.ine..,. -in-nan-permissible condition in an intake 

air course outby the last open crosscut, on May 4, 1979, at 

the same mine in the same working section. (See Citation 

No. 0617859, attached hereto as Exhibit No. G-2). 

3. The section of the mine in question was being prepared for mining operations which were scheduled to begin 

shortly after the issuance of the subject citations. The 

operator intended to use both pieces of equipment inby the 

last open crosscut while performing these mining operations. 

4. On May 3, 1979, mining activities at this section of 

the mine, during the shift in which Citation No. 0617857 was 

issued, produced 105 tons of coal after the citation was 

issued. 

5. On May 4, 1979, mining activities at this section of 

the mine, during the shift in which Citation No. 0617859 was 

issued, produced 285 tons of coal after the citation was 

issued. 

DISCUSSION 

Solar contends that a citation issued under 30 C.F.R. § 75.503 may be 

issued only if the nonpermissible equipment is seen inby the last open crosscut. MSHA contends that nonpermissible equipment intended for use inby the 

last open crosscut may be cited even if found outby the last open crosscut. 

Both parties cite authorities in suppport of their positions. 

Solar relies primarily upon two decisions issued by ~dministrative law 

judges and MSHA's Draft Electrical Manual. In Kaiser Steel Corporation, 

Docket No. DENV 73-131-P (April 9, 1974), an administrative law judge vacated 

a notice of violation because the equipment was not actually inby the last 

open crosscut, stating: "I do not construe the regulation as requiring that 

all electric face equipment, irrespective of where it is located, must at all 

times be maintained in permissible condition simply because it is intended to 

1734 
be taken into or used inby the last open crosscut." In Mineral Developing 

Company, Inc., Docket No. MORG 74-739-P (February 25, 1975), an administrative law judge vacated a notice of violation because MESA (MSHA's predecessor) provided no information to indicate where a nonpermissible scoop was 

operating and the judge was therefore "unable to determine that the scoop was 

located inby the last open crosscut." 

The MSHA Draft Electrical Manual relied upon by Solar in reference to 

30 C.F.R. § 75.503 states, "[e]nergized electric face equipment must be 

observed in or inby the last open crosscut or in a return entry before a 

permissibility violation exists." Solar concedes that the-Draft Manual has - ----

never been in effect and is not a regulation or official policy of MSHA. 

MSHA relies upon Peabody Coal Company, Docket No. VINC 77-88 (October 10, 

1978). In Peabody Coal Company, the judge rejected the reasoning of Kaiser 

Steel Corporation. The judge in Peabody Coal Company held: 

This language clearly supports the proposition that all 

electric face equipment falls under the protection of 30 CFR 

75.503 regardless of its location in the mine. Thus, the 

said shuttle car, which was intended to be used inby the last 

open crosscut (see Applicant's brief, P• 2), was in violation 

of 30 CFR 75.503. 

The holdings of the cases cited by Solar and MSHA are in direct conflict. 

In the instant case, MSHA has not shown and does not contend that the equipment in question had been taken into or used inby the last open crosscut at 

the time the citation was issued. MSHA asserts that the fact that the operator intended to take the machines inby the last open crosscut was sufficient 

to prove a violation. That reasoning, however, ignores the plain language of 

1735 
the regulation which requires that the equipment be electric face equipment 

"which is taken ini:o-ar·u-;ed-inby the last open crosscut." To prove a violation of 30 C.F.R. § 75.503, MSHA must show that Solar did not maintain in 

permissible condition, equipment which was "taken into or used inby the last 

open crosscut." 

While I am mindful of the remedial nature of the Act and the fact that 

the Act is to be construed broadly to accomplish congressional policy, I find 

nothing in the legislative history which would support the position of MSHA 

and the holding in Peabody Coal Company, supra. On the contrary, section 

318(i) of the Act provides in pertinent part: "'Permissible' as applied to 

electric face equipment means all electrically operated equipment taken into 

or used inby the last open crosscut of an entry * * *·" In order to support 

MSHA's position I would have to find that the language "taken into or used 

inby the last open crosscut" as used in this regulation is redundant. Nowhere 

in the Act or regulations is there a requirement that a mine operator maintain 

electrical face equipment in permissible condition if it is "intended" to 

be taken into or used inby the last open crosscut. The authority cited for 

the contrary holding in Peabody Coal Company, supra, was 30 C.F.R. § 18.90 

titled "Field Approval of Electrically Operated Mining Equ:lpment" which provides in pertinent part as follows: 

The regulation of this subpart (e) set forth the procedures and requirements for permissibility which must be met 

to obtain MESA full approval of electrically operated 

machinery used or intended for use inby the last open crosscut of a coal mine which has not been otherwise approved, 

certified or accepted * * *· (Emphasis supplied.) 

1736 
I find that 30 C.F.R. § 18.90 concerning "Field Approval of Electrically 

Operated Mining Equipment" is irrelevant to a determination of whether Solar 

violated 30 C.F.R. § 75.503. The former section does not purport to be a 

definitional section for the regulation in controversy. Moreover, it would 

be unreasonable to expect a mine operator to conclude that the language 

"intended for use" contained in 30 C.F.R. § 18.90 would apply to 30 C.F.R. 

§ 75.503 when the opposite conclusion is manifest from the language employed. 

MSHA does not allege that the electric face equipment involved in the 

instant citations was taken into or used inby the last open crosscut. Therefore, MSHA has not alleged facts which, as a matter of law,_ constitute a violation of 30 C.F.R. § 75.503. 

Under 29 C.F.R. § 2700.64(b): 

A motion for summary decision shall be granted only if 

the entire record, including the pleadings, depositions, 

answers to interrc~~tories, admissions, and affidavits shows: 

(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. 

Here, the record shows that there is no issue as to any material fact and, 

based upon the foregoing, Solar is entitled to summary decision as a matter 

of law. 

ORDER 

WHEREFORE IT IS ORDERED that Citation Nos. 0617857 and 0617859 are 

VACATED, Solar's motion for summary decision is GRANTED, and the petition is 

1737 
DISMISSED. IT IS FURTHER ORDERED that MSHA's motion for partial summary 

decision is DENIED. ---

~a. s A. Laurenson, Judge 

Distribution by Certified Mail: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 

James L. Custer, Manager, Safety and Health, Solar Fuel Company, P.O. 

Box 488, Somerset, PA 15501 

1738 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO •. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

... 

WINDSOR POWER HOUSE COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Respondent 

3 JUL 1980 

Contest of Orders 

Docket No. WEVA 79-199-R 

Docket No. WEVA 79-200-R 

Beech Bottom Min~ 

DECISION 

Appearances: David M. Cohen, Esq., American Electric Power Service 

Corporation, Lancaster, Ohio, for Contestant; 

Michael Bolden, Office of the Solicitor, Mine Safety 

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

Arlington, Virginia, for Respondent, MSHA. 

Before: Administrative Law Judge Melick 

These consolidated cases are before me under section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 801 et~., 

upon the applications of the Windsor Power House Coal Company (Windsor) to 

contest two orders of withdrawal issued by the Mine Safety and Health Administration (MSHA) under section 104(d)(l) of the Act. In challenging these 

orders, Windsor takes issue not only with the validity of the orders per se 

but also with the precedential underlying section 104(d)(l) citation which 

was the basis of the orders. An evidentiary hearing was held on December 12 

and 13, 1979, and on January 23, 1980, in Wheeling, West Virginia. 

I. The Underlying Section 104(d)(l) Citation 

The section 104(d)(l) citation underlying both orders at bar was 

issued by MSHA inspector Charles Coffield, and received by Windsor, on May 3, 

1979. l/ Windsor did not file notice of its intent to contest that ~itation 

lf Section 104(d)(l) provides as follows: 

"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there ha~ been a violation of any 

1739 
until December 12, 1979, more than 7 months later. Under section 105(d) of 

the Act the min.e operator is afforded an opportunity to challenge such a 

citation if he notifies-the Secretary within 30 days of its receipt of his 

intent to contest the issuance of the citation. Energy Fuels Corp. v. MSHA 

1 FMSHRC 299 (May 1, ·1979). 

While the former Interior Board of Mine Operations Appeals had permitted 

notices issued under section 104(c)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (comparable to citations issued under section 104(d)(l) of 

the 1977 Act) to be contested at the hearing challenging a section 104(c)(l) 

withdrawal order (comparable to a section 104(d)(l) withdrawal order under 

the 1977 Act) based on that notice, Ziegler Coal Company 4 IBMA 139 (·1975), 

Eastern Associated Coal Co., 4 IBMA 184 (1975), and Kentland Eklhorn Coal 

Corp., 4 IBMA 166 (1975), the justification for such a procedure does not 

exist under the 1977 Act. Under the 1969 Act, as interpreted by the former 

Interior Board, an abated notice could not otherwise be immediately challenged except as an incident to review of the related withdrawal order. 

Under the 1977 Act, however, immediate review of the section 104(d)(l) citation is permitted. Energy Fuels, supra. Moreover, there is no specific 

authority in the 1977 Act to allow hearings on a citation at the hearing 

contesting a subsequent withdrawal order where the notice to contest that 

citation has not been timely filed independent of the withdrawal order. I 

conclude therefore that under the 1977 Act, the underlying section 104(d)(l) 

citation cannot be reviewed solely as an incident to review of the related 

104(d)(l) order but must be independently and timely challenged under the 

provisions of section 105(d) of the 1977 Act. I find the decisions of the 

Interior Board, cited above, to be in.apposite. Of course, once the right 

to review the underlying citation has been preserved by filing in accordance 

with section 105(d), then the hearing on that issue could be consolidated 

with any hearing requested on any subsequent order of withdrawal based on 

that citation. 

fn. 1 (continued) 

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 o'f a coal or other mine safety or -health hazard, and 

if he fincis such violation to be caused by an unwarrantable failure of the 

operator to comply with such mandatory health or safety standards, he shall 

include such finding in any citation given to the operator under this Act. 

If, during the same inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or 

safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to such comply, he shall forthwith issue an. 

order requiring the operator to cause all persons in the area affect~d by 

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

withdrawn from, and to be prohibited from entering, such area u~til an 

authorized representative of the Secretary determines that such_ violation 

has been abated." · 

1740 
Since Windsor did not file its notice of contest to the citation at bar 

until more than 30_~ay~_af_te~_its receipt it appears that in accordance with 

section 105(d) of the-Act, I am without jurisdiction to consider that 

citation. 

The Secretary suggested at hearing that since the citation could in anyevent be contested at subsequent penalty proceedings under section 105 of the 

Act, I was not without authority to grant immediate review of the citation. 

Moreover the parties waived the procedural formalities to the bringing of a 

civil penalty proceeding. I thereupon agreed to conduct a hearing on the 

underlying citation and issued a bench decision in which I found that the 

violation was proven as charged and in which I made special "significant and 

substantial" and "unwarrantable failure" findings. Upon closer examination 

of the statutory language and decisions of the Commission, I now conclude 

that l had no jurisdiction to make those special "significant and substantial" and "unwarrantable failure" findings. Since the provisions of the Act 

do allow the operator to challenge at civil penalty proceedings, the existence of the violation charged in a citation and since the parties in this 

case waived the procedural prerequisites to such a proceeding, it is apparent 

that I did have jurisdiction to review that limited issue at hearing. However, since there is no authority under the Act to consider the special findings of "significant and substantial" and "unwarrantable failure" in civil 

penalty proceedings, it is apparent that upon its failure to timely file a 

notice of contest to the citation herein Windsor was foreclosed from challenging those special findings. This conclusion is consistent with the 

Commission decisions in Pontiki Coal Corporation v. ~ 1 FMSHRC 1476 

(October 1979), and Wolf Creek Collieries Company 1 FMSHRC ~(March 1979), 

that the validity of a withdrawal order is not an issue in a penalty 

proceeding. 1/ 

Under the circumstances, the Bench decision rendered at the hearing on 

December 12, 1979, and set forth below is applicable only to the issue of the 

violation itself and any special findings made therein are therefore surplusage. Windsor has waived its right to challenge these special findings by its 

failure to timely contest the citation under section 105(d) of the Act. 

The citation at bar charges a violation of 30 C.F.R. § 75.302-l(a). In 

relevant part, the citation reads as follows: 

[The] inby end of the line brattice that was being used to 

ventilate the working face of No. 1 entry of 2 right 6 east 

(029) section was approximately 44 feet 2 inches plus the 

cutter bar sumped in and coal was being cut with a 15 RU Joy 

cutting machine SN 18046 operated by John V. Mann** *· 

2/ Although the-Commission was concerned in these cases with penalty proceedings under section 109(a)(3) of the 1969 Act, there is no reason to 

believe that the same construction would not apply as well to the generally 

similar provisions of section 110 of the 1977 Act. 

1741 
The cited standard provides. in relevant parts as follows: 

Line br.attice or any other approved device used to provide ventilation. to the working face from which coal is being 

cut. ~ined or loaded and other working faces so designated 

by the coal mine safety manager. in the approved ventilation 

plan. shall be installed at a distance no greater than 

10 feet from the area of deepest penetration to which any 

portion of the face has been advanced * * *· 

At the conclusion of the evidentiary hearing as to the citation and upon 

request of counsel. I rendered a bench decision providing. in essence. as 

follows: 

There is no doubt that when Inspector Coffield came upon the working 

face of the No. l entry. the end of the line brattice was at least 44 feet. 

plus 8 feet (for a total distance of at least 52 feet) from the point of the 

cutter bar's deepest penetration. The inspector's testimony is undisputed 

in this connection. Indeed. it is corroborated to a great extent by the 

operator's own witness t safety inspector Mike Roxby, ~go.-testified that in 

order to abate the violation he needed more than two 20-foot sections of 

brattice to abate the violation. 

I also observe that in the order itself, Inspector Coffield noted that 

the violation was terminated by extending the brattice to within 8 feet of 

the working face. Considering the testimony of Roxby that in order to abate 

the violation it required more than two additional 20-foot sections of 

brattice. it is apparent that there was in fact an extensive distance between 

the end of the line brattice to the deepest point of penetration of the working face. 

Now. it is also essentially undisputed that some nails for hanging the 

brattice were in the roof when Coffield came upon the scene at- the No. l 

entry. The testimony is also undisputed that these nails did not extend 

to more than 20 or 22 feet from the existing brattice before abatement. 

There was some suggestion, I think by Mr. Roxby, that the nails could have 

pulled out, but there is no affirmative evidence of that. and Roxby himself 

testified that he did not see any nails lying about. There is no contradictory evidenc.e therefore to indicate that any hangers or hanging devices, 

nails or whatever, did extend beyond 20 or 22 feet. This becomes significant 

because the operator has suggested that its employees, without knowledge of 

supervisory personnel, had taken the line brattice down. But the evidence 

indicates that the nails extended only 20 to 22 feet beyond the line 

brattice as found by Coffield thereby indicating that at best the brattice 

was only hung an additional 20 or 22 feet from the line found by Coffield, 

thus leaving an additional distance without brattice of 20 or 22 feet, or 

even more than that depending on how you look at it, but a m1n1mwn of 20 or 

22 feet from the end of the line brattice to the working face. 

1742 
There is also testimony from Roxby that in order for work to advance 

a distance of 30 f~e.t ip_,an._ ~n_try such as the No. 1 entry would require 

5-1/2 hours of actual operating time and could actually involve or be spread 

over three working shifts. He or one of the other witnesses testified that 

the work cycle is to cut, drill, shoot, remove the loose coal and roof bolt. 

When Inspector Coffield arrived at 9:35 at the No. 1 entry, the cutting cycle 

was underway. According to the most conservative calculation, that would 

place Foreman Wheeler at that particular location (Wheeler thought he was 

last there at 8:45) when he was in a position to have seen the brattice 

(again, even assuming the employees had the brattice hung on the nails 

observed by Coffield) some 20 or 22 feet from the existing working face. 

Therefore Foreman Wheeler should have seen that it was in violation of the 

regulations. Wheeler testified that he thought the line brattice was then 

actually 10 to 12 feet from the working face when he saw it. However, based 

on the evidence previously noted, it is apparent that Wheeler's approximation was totally erroneous. 

I also consider in this case the fact that the company mine safety 

inspector, Roxby, testified that he knew of no enforcement policy for correcting employee violations of the brattice regulation and that there had 

been a history, according to Coffield, of a rather cavalier disregard on 

the part of other foremen in this particular mine for the maintenance of 

the brattice regulation. 

So all these factors combined lead me to the conclusion that certainly 

the operator should have known of the violation in this particular case and 

that it was caused by unwarrantable failure, as defined in Zeigler Coal 

Company, 7 IBMA 280 (1977). The citation herein was therefore valid. 

II. Order of Withdrawal--Docket No. WEVA 79-199-R 

Order of Withdrawal No. 811582 alleged violations of 30 C.F.R. § 75.400, 

charging that there were accumulations of loose dry coal in five different 

locations in the north main section of the mine and oil, grease and coal on 

various mining equipment including a shuttle.car, a cutting machine, the 

coal feeder and the loading machine. The cited regulation provides that 

"[c]oal dust, including float coal dust deposited on rock-dusted surfaces, 

loose coal, and other combustible materials, should be cle~ned up and not 

be permitted to accumulate in active workings, or on electric equipment 

therein." 

The cited regulation had been interpreted by the Interior Department's 

Board of Mine Operations Appeals in Secretary v. Old Ben Coal Company, 8 IBMA 

98 (August 17, 1977), as requiring proof of: (1) An accumulation of combustible materials, (2) the operator's knowledge, actual or constructive, that 

such accumulations existed, and (3) the failure of the operator to clean up 

or undertake to clean up such accumulations "within a reasonable time after 

discovery, or, within a reasonable time after discovery should have been 

made." On December 12, 1979, the date on which the hearing in this case 

commenced, the Federal Mine Safety and Health Review Commission reversed the 

1743 
Board's decision and held that a violation of 30 C.F.R. § 75.400 exists upon 

a finding alone that an g_c~umulation of combustible materials exists. Secretary v. Old Ben Coai-C~mpany, 1 FMSHRC 1954 (1979). 

While as a matter of fundamental fairness to operators who have been 

permitted to rely upon the Interior Board's Old Ben decision and consistent 

with the criteria set forth by the Supreme Court of the United States in 

its holdings regarding retroactive application of judicial and agency decisions, 3/ I believe the Commission's Old Ben decision should not be applied 

retroactively to orders and citations issued after the Board's decision and 

3/ As pointed out by the United States Supreme Court in Linkletter v. Walker, 

381 U.S. 618, 14 L.Ed.2 601, 85 s. Ct. 1731 (1965), retroactive operation of 

an overruling decision is neither required nor prohibited by the Constitution 

and the determination of whether and to what extent a new rule adopted and an 

overruling decision will be given retroactive effect is not a matter of constitutional compulsion but a matter of judicial policy, to be determined by 

the court after weighing the merits and demerits of the particular case, by 

looking to the prior history of the rule in question, its __ purpose and effect, 

and whether retroactive application will further or retard its operation. 

Retroactive effect to an overruling decision will be denied where there has 

been justifiable reliance on decisions which are subsequently overruled and 

where those who have so relied may be substantially harmed if retroactive 

effect is given to the overruling decision. Safarik v. Udall, 113 App. D.C. 

303, 304 F.2d 944 (1962), cert. denied, 371 u.s. 901, 9 L.Ed.2d 164, 83 s.ct. 

206; Lyons v. Westinghouse Electric Corp., 235 F. Supp. 526 (1964 D.C. N.Y). 

The Supreme Court in NLRB v. Bell Aerospace Company, Division of Textron, 

Inc., 416 U.S. 267, 40 L.Ed.2 134, 94 s. Ct. 1757 (1974), again suggested 

th.it retroactivity will be denied when a party has relied upon prior administrative agency holdings and such reliance would result in adverse consequences. If new liabilities are being imposed, fines levied, or damages 

awarded, reliance on past agency practices and rules will not be penalized. 

Mezines, Stein and Gruff, Administrative Law, § 14.01; and Annotations at 14 

L.Ed.2 992; 10 ALR.3d 1371 and 22 L.Ed.2 821. 

Within this framework, it appears that the Commission's decision in 

Old Ben should not be applied retroactively to the order in this case nor to 

any order or citation issued after the date of the Board' s--Old Ben decision 

and before the date of the Commission's Old Ben decisidn. Windsor in this 

case and other operators similarly situated clearly had a right to rely upon 

the Board's Old Ben decision until modified by the Commission. They should 

not therefore now be penalized for such reliance. 

As also pointed out in Linkletter, another factor to be considered in 

determining whether to give general retroactive effect to a new judicial rule 

adopted in overruling earlier precedents is the purpose of the rule. If the 

purpose of the new rule can be adequately effectuated without applying it 

retroactively, retroactive operation may properly be denied. LZons v. 

Westin,house, supra; U.S. ex. rel. Angelet v. Fay, 333 F.2d 12 1964 CA 

2 N.Y. , aff'd., 381 U.S. 654, 14 L.Ed.2d 623, 85 S.Ct. 1750; Sisk v. Lane, 

331 F.2d 235 (1964 CA Ind.),~· denied, 380 U.S. 959, 13 L.Ed.2d 977, 

1744 
before the Commission decision, the Commission has in fact given it retroactive effect. Se.cret;ary ¥.-C.C.C.-Pompey Coal Company, Inc., 2 FMSHRC _ 

(June 12, 1980). Accordingly, I apply in this case the law set forth in 

Old Ben Coal Co., 1 FMSHRC 1954 (1979). Thus, in proving the violations of 

30 C.F.R. § 75.400 now before me, MSHA need only establish the existence of 

an accumulation of combustible materials. The term "accumulation," has been 

simply defined as "a mass of something heaped up or collected." The American 

Heritage Dictionary of the English Language, Houghton, Mifflen Co. (1976); 

lA Words and Phrases, 11Accumulate, Accumulation." 4/ I find that this definition appropriately reflects the meaning of the t;rm as used in the cited 

regulation. Applying this standard to the facts, I find that MSHA has proven 

violations in five of the nine factual circumstances cited. 

Inspector Coffield testified that the first three accumulations were 

located outby the survey station marked 120 + 59 in the No. 5 entry of the 

north main section and ranged in size from 2-1/2 to 3 feet high, 3 feet to 

8 feet wide and 2 feet to 5 feet long. Another pile of loose dry coal was 

located inby the 7 West tailpiece and was 10 to 20 inches deep, 8-1/2 feet 

wide and 8 to 14 feet long. The fifth pile of loose dry coal~ located at the 

No. 5 entry of the 7 West North main section, was 2 to 8 inches deep 14 feet 

wide and 40 feet long. The piles were measured by Coffi·eTCI. in the presence 

of Windsor's safety inspector, Michael Roxby. 

Coffield opined that the first three piles had been created as a result 

of dumping because of the way they were formed. He thought they had been 

there from 1 day to as long as 3 weeks because the coal was excessively dry 

and there was evidence that a scoop tractor or similar equipment had pushed 

it to the side and run over it. He dug into the piles with a stick, examined 

them and concluded that they consisted entirely of coal. He took no samples 

and performed no tests on the coal. 

Coffield also concluded that all five piles of coal were located in 

areas traveled in preshift examinations. He observed that the shift then in 

operation had begun about 8 :_00 or 8: 30 that morning. He discovered the first 

of the subject piles around 9:05 a.m. and found the rest before 9:50 a.m. 

Coffield concluded that since coal had not yet been mined during that shift 

fn. 3 (continued) 

85 s.ct. 1100. Since the primary purpose of the standard cited in this case 

is to prevent future dangerous accumulations of coal dust, loose coal and 

other combustible materials, the purpose of the Commission's interpretation 

of the rule can be properly effectuated without applying it retroactively. 

4/ Although the term may also connote a buildup over a period of time, 

TA, Words and Phrases, supra, the Commission has in its Old Ben decision 

implicitly rejected any such time concept. The Commission rejected the use 

of the time concept adopted by the former Interior Board in its Old Ben 

decision and found that the "vast spillage" found in Old Ben was, in itself 

and without consideration of time for buildup, sufficient evidence of a violation of 30 C.F.R. 75.400. 

1745 
and because coal had not been mined during the midnight shift, the coal must 

have be.en spilled on tI:ie_p!:_~vious day's 4 to 12 shift. He also concluded that 

the accumulations-of-loose coal were co~bustible and presented a hazard of 

fire or possible explosion because of energized equipment located in the ar~a. 

I find Coffield's testimony to be credible and his visual observations 

sufficient to support the violations regarding the five accumulations of 

loose coal. Coal Processing Corporation, 2 IBMA 336 at pp. 345-346. I find 

from the large size of these piles that each constituted an accumulation 

under the cited standard. I further find that the operator had at least constructive knowledge of the accumulations and should.have known of their existence from a properly conducted preshift examination. It is undisputed that 

coal had not been mined after the 4 to 12 shift on the previous day and that 

the piles remained as late as 9:50 on the morning of the inspection. Moreover company safety man Michael Roxby conceded that the scoop tractor had 

placed the first pile there earlier in the shift so that the tractor could be 

used to load posts to correct a roof condition. 

In reaching my conclusions herein, I have given full consideration to 

the testimony of Roxby, mine superintendent John Skeens, ~nd mine safety 

supervisor David Maulkey. However, for the following reasons I can give but 

little weight to that testimony. While Roxby testified that the cited piles 

of coal were either too wet to be combustible or so intermixed with incombustibles so as to be virtually incombustible itself, he conceded that he was 

not present during the entire inspection, that he took no samples from any of 

the cited piles and performed no test of combustibility or wetness. Roxby's 

silence and lack of protest when Inspector Coffield measured the cited coal 

piles may also be construed as an admission. If Roxby indeed believed that 

the piles were too wet or that they were intermixed with noncombustibles, it 

is reasonable to expect that he would have protested in the face of what must 

have been obvious preparation for a citation or order. 

Similarly, I can give but little weight to the testimony of Skeens and 

Maulkey because they did not accompany Coffield on his inspection and their 

observations were made sometime later. It is apparent moreover, that since 

Skeens' testimony differed from both Coffield's and Roxby's regarding the 

nature of some the coal piles it is quite likely that the witness was not 

even referring to the same piles that were cited. 

Since I have already found that the operator should have known of the 

five loose coal accumulations cited and failed to exercise reasonable care 

in cleaning up those accumulations, I find that the violations were caused 

by the unwarrantable failure of the operator to comply with the cited standard. Ziegler Coal Company, 7 IBMA 280 (1977). 1/ 

2./ "Unwarrantable failure" is defined therein as the failure by an operator 

to abate a condition that it knew or should have known existed, or the failure to abate because of indifference or lack of due diligence or reasonable 

care. Under this sweeping definition, it is apparent that practically any 

violation would be the result of such "unwarrantable failure." 

1746 
I do not find on the other hand that any violation existed with respect 

to the alleged oil~.grease-and- coal found on a shuttle car, the cutting 

machine, the coal feeder and the loading machine. The.Government failed 

to satisfactorily establish that these substances existed in sufficient quantity to constitute an "accumulation." Indeed, Inspector Coffield admitted 

on cross-examination that he could not recall the amount of "accumuLations" 

on this equipment. Moreover, as a finder of fact I need more than the 

inspector's bare conclusions in this regard. 

III. Order of Withdrawal--Docket No. WEVA 79-200-R 

Inspector Coffield issued Order of Withdrawal No. 811583 on May 16, 1979, 

for a violation of 30 C.F.R. § 75.202 alleging that "there were overhanging 

ribs -up to 58 inches wide in Nos. 1 through 9 entries and the last open crosscut previous to No. 1 entry of North Mains of 7 West North Mains, 027 Section, 

for a total of approximately 900 feet and approximately one-half of the ribs 

were loose" (Tr. 30). The cited regulation provides as relevant herein that 

"[l]oose roof and overhanging or loose faces and ribs shall be taken down or 

supported." 

Windsor concedes in its pleadings that it was in violation of the cited 

standard in the No. 1 entry and does not deny that it was the result of 

"unwarrantable failure." It contends only that the violations and "unwarrantable failure" findings in entries Nos. 2-9 were erroneous. 

Inspector Coffield entered the subject mine on May 16 around 8:30 a.m. 

and observed upon his arrival at the No. 1 entry, loose ribs and top along 

the left rib of the entry. Proceeding to the Nos. 2 and 3 entries, he 

observed more loose ribs on the roof on both sides with up to 4 feet of 

overhang. In the No. 4 entry, he observed loose ribs on both sides and in 

the No. 5 entry observed loose ribs behind the curtain on the right side. In 

the No. 6 entry, he observed loose ribs on the right side overhanging 3 to 

3-1/2 feet. In the No. 7 entry, he observed loose ribs and overhanging on 

the right side. In the No. 8 entry, the right rib was loose and overhanging up to 58 inches and in the No. 9 entry, loose ribs were overhanging on 

the right side. Coffield determined that the overhangs were loose by 

observing cracks and breaks in the strata between the roof and rib. In some 

places, Coffield tested the roof with a pick-like instrument and discovered 

that it fell "real easily, just a touch." There were no supports for any 

of the overhanging ribs. In his opinion, the condition was obvious and had 

existed in nine entries for about a week and in the last open crosscut for 

more than a week. Coffield thought the condition was serious because of the 

possibility of fatal injury from a rib or roof fall. 

I find the inspector's testimony to be credible and his expert opinions 

to be based on sufficient evidence to support the withdrawal order. His 

testimony in significant respects is indeed corroborated by Windsor's own 

safety inspector Roxby and mine superintendent Skeens. Both of these men 

observed numerous cracks in the ribs. Roxby conceded that some of the ribs 

were not perpendicular and that some contained loose material. Neither 

1747 
specifically denied that the ribs were, as a factual matter, "overhanging" 

but claimed only that .ill. tj_i_eir opinion the ribs posed no danger. Since the 

essence of the vfolation charged is the mere existence of unsupported "loose 

roof and overhanging .or loose faces and ribs," their opinion that such ribs 

posed no danger is immaterial. 

Under the circumstances, I find that the violations existed as charged 

and that Windsor should have known of their existence. They were therefore 

the result of "unwarrantable failure." Zeigler Coal Company, 7 IBMA 280 

(1977). The order of withdrawal was therefore valid in its entirety and no 

modification is warranted. 

ORDER 

I. Docket No. WEVA 79-199-R 

Order of Withdrawal No. 811582 is affirmed as to the first five accumulations described therein but modified and found invalid as to the last four 

alleged accumulations described therein. 

II. Docket No. WEVA 79-200-R 

Order of Withdrawal No. 811583 is affirmed 

No. WEVA 79-200-R is therefore dismissed. 

Distribution: 

David H. Cohen, Esq., Assistant Legal Counsel, 

Electric Power Service Corporation, P.O. Box 

43130 (Certified Mail) 

Supply, American 

Lancaster, OH 

Michael Bolden, Esq., Office of the Solicitor, U.S. Department of 

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

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

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

1748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

--OFFICEOF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52(11 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6230 

S JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. YORK 79-21-M 

Petitioner A.C. No. 30-02135-05002 

v. 

NEW YORK STATE DEPARTMENT 

OF TRANSPORTATION, 

Docket No. WILK 79-102-PM 

A.c. No. 30-02135-05001 

Appearances: 

Before: 

Respondent Docket No. YORK 80-2-M 

A.c. No. 30-02358-05001 

Underwood Pit 

Botsford Pit 

DECISION 

Deborah B. Fogarty, Esq., Office of the Solicitor, u.s. 

Department of Labor, New York, New York, for Petitioner; 

William s. MacTiernan, Associate Attorney, Legal Services 

Bureau, New York State Department of Transportation, 

Albany, New York, for Respondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY -

• (~i These proceedings arise out of the consolidation of three c1v1l penalty 

proceedings brought by the Secretary of Labor, Mine Safety and Health Administration (hereinafter MSHA) against the New York State Department of 

Transportation (hereinafter New York), under section llO(a) of the Federal 

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

Prior to hearing, New York moved to dismiss all three cases for the 

following reasons: 

1749 
1. The pits in question are not subject to MSHA 

jurisdiction;. 

2. Enforcement of the Act against New York violates the 

tenth amendment of the Constitution; 

3. New York's activities in connection with these proceedings are not within the ambit of the Act "because the 

products thereof did not enter commerce nor did the operation 

or products thereof affect commerce." 

I denied New York's motions in an order denying motions to dismiss (attached 

hereto and incorporated herein as an Appendix) for the reasons stated therein. 

In that order I found that a hearing was required to determine whether the pits 

in question were "borrow pits" within the definition of that term in the 

Interagency Agreement between MSHA and OSHA. 

MSHA has authority to administer the Act which applies to all "mines." 

A mine is defined in the Act, 30 u.s.c. § 802(h), as "an area of land from 

which minerals are extracted in nonliquid form." The Underwood Pit and the 

Botsford Pit meet that definition. They are, therefore, mines within-the 

.reach of the Act. Consequently, MSHA would have jurisdiction over them. 

However, MSHA has issued a formal interagency agreement to define its jurisdiction vis-a-vis the Occupational Safety and Health Administration (hereinafter OSHA) in which it has limited its jurisdiction. Interagency Agreement 

between MSHA and OSHA, u.s. Department of Labor, dated March 29, 1979. 

44 ~· Reg.@;22827 (April 17, 1979). That agreement states that "borrow 

pits" are subject to OSHA jurisdiction. A borrow pit is defined as: 

[A]n area of land where the overburden, consisting of unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction 

occurs on a one-time only basis or only intermittently as 

need occurs, for use as fill materials by the extracting 

1750 
party- in the form in which it is extracted. No milling is 

involved, exc_e.pt __ fpr_the use of a scalping .screen to remove 

larger rocks, wood and trash. The material is used by the 

extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit. MSHAOSHA Interagency. Agreement, par. B(7), 44 Fed. Reg. 22827 

(1979). 

"Milling" is. defined in the agreement to include "sizing." "Sizing" is 

defined as "the process of separating particles of mixed sizes into groups 

of particles of all the same size or into groups in which particles range 

between maximum and minimum size." 

A hearing was held in Albany, New York, on June 10, 1980. Randall L. 

Gadway and Ronald Mesa, testified on behalf of MSHA. -Gcn:'aon Reimels testified on behalf of New York. Upon completion of the taking of testimony, 

the parties submitted oral arguments. 

ISSUES 

1. Whether the pits in question are under the jurisdiction of MSHA. 

2. Whether the Commission can decide that the Act may be constitutionally enforced against a ~tate. 

3. Whether enforcing the Act against the State violates the tenth 

amendment. 

4. Whether the State's activities are within the coverage of the Act. 

S. If the pits in question are determined to be under MSHA jurisdiction, whether New York violated the Act or regulations as charged by MSHA 

and, if so, the amount of the civil penalty which should be assessed. 

1751 
APPLICABLE LAW 

Section llO(i) of the Act, 30 u.s.c. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

30 C.F.R. § 56.18-10 provides as follows: "Mandatory. Selected supervisors shall be trained in first aid. First aid training shall be made 

available to all interested employees." 

30 C.F.R. § 56.9-87 provides as follows: 

Mandatory. Heavy duty mobile equipment shall be provided with audible warning devices. When the operator of 

such equipment has an obstructed view to the rear, the equipment shall have either an automatic reverse signal alarm 

which is audible above the surrounding noise level or an 

observer to signal when it is safe to back up. 

30 C.F.R § 56.14-1 provides as follows: "Mandatory. Gears; sprockets; 

chains; drive, head, tail, and takeup pulleys; flywheels; couplings; shafts; 

sawblades; fan inlets; and similar exposed moving machinery parts which may 

be contacted by persons, and which may cause injury to persons, shall be 

guarded." 

30 C.F.R. § 56.9-22 provides as follows: "Mandatory. Berms or guards 

shall be provided on the outer bank of elevated roadways." 

1752 
STIPULATIONS 

The stipulations in these cases are as follows: 

1. The New York State Department of Transportation's 

sand extraction operation at the Underwood Pit is a yearly 

operation for the purpose of stockpiling sand for winter snow 

and ice control for certain highways within Essex County. 

2. The Underwood Pit is located at the intersection of 

Route 9 and Route 87 on the Northway extension of the New York 

State Thurway which road continues north to Montreal, Canada. 

3. The New York State Department of Transportation's 

sand extraction and stock pile operation at the Underwood Pit 

in 1978 took place on July 5, 6, 7, 10, 12, 13 and 14. 

4. The employees present at the Underwood Pit during 

the sand removal consisted usually of three employees~ On 

July 6, 1978, four employees were present at the site. 

5. The equipment used in the extraction of sand operation at the Underwood Pit in 1978 consisted of a Telesmith 

screening plant, a Northwest crane and a Case front-end 

loader. 

6. Except when extracting sand, this equipment is not 

generally at the Underwood Pit. A front-end loader is kept on 

site in the winter for the purpose of loading the stockpiled 

sand into trucks. 

7. Randall Gadway is presently employed by the Mine 

Safety and Health Administration, hereinafter MSHA, as a 

metal, non-metal mine inspector. 

8. Randall Gadway has been employed in the capacity of 

the safety and health mine inspector by the Mining -Enforcement 

and Safety Administration, hereinafter MESA, predecessor of 

MSHA and by MSHA since 1975. 

9. Prior to his employment with MESA/MSHA, Mr. Gadway 

was employed in the mining industry since 1966. 

10. On July 5, 1978, as a part of his responsibilities, 

Mr. Gadway inspected Respondent's Underwood Pit. 

11. At the time of the inspection, Mr. Gadway obse!ved 

the screening plant in operation. 

1753 
12. At the time of the inspection, bulk material was 

being removed frol!!_rjl~ bank of the Underwood Pit and was 

being dumped lrito a hopper. 

13. From the hopper, the extracted material was 

transported by conveyor belts to the screen. 

14. Sand similar in size and quality to beach sand was 

dropping through the moving screen. 

15. The sand dropping through the moving screen was 

being removed and stockpiled. 

16. At the time of the inspection, the reverse signal 

alarm of the Case front-end loader was not working. 

17. Respondent will not raise the defense that the 

proposed assessments will affect the operator's ability to 

continue in business. 

18. Prior to July 5, 1978, Respondent had· no previous 

history of paid violations at its Underwood Pit facility. 

19. Respondent's Underwood Pit is in Region I by designation of the New York State Department of Transportation. 

Region I includes all of Essex County, New York. 

20. The parties stipulate that the four conditions 

involved in all four citations--that is Citations 220483, and 

220484 at the Underwood Pit and 219993 and 219994 at the 

Botsford Pit, that these conditions were abated within the 

time specified by the inspector for abatement and that compliance was normal for all four situations. 

21. The parties agree that there were no berms in the 

upper roadway on the north side of the Botsford Pit. 

SUMMARY OF THE EVIDENCE 

Operations at the Underwood Pit and the Botsford Pit 

While the parties arrive at conflicting conclusions from the evidence 

presented, there is no essential dispute of fact in this case. The 

Underwood Pit is described as follows: 300 to 400 feet in diameter, 

1754 
30 to 40 feet high, and a 70-degree angle of repose of thematerial being 

extracted. The equtpmettt-· emproyed at this site consists of the following: 

shed, crane, screening plant, and front-end loader. On the day of the 

inspection, July 5, 1978, a foreman and three employees were present at the 

site. A front-end loader was used to extract loose, unconsolidated material 

from the face and to dump this material on a hopper. A conveyor belt then 

transported the material to a shaker screen. No screen of any kind was 

placed over the hopper ·so that all material dumped arrived at the shaker 

screen by the conveyor belt. The raw material dumped at the hopper ranged 

in size from sand-size particles to fist-size rocks. There was no wood or 

trash in this material. The shaker screen permitted mat~!'J.al :approximately 

one-quarter inch or less to pass through. Larger material was discarded. 

The material passing through the screen was picked up by a crane and stockpiled approximately 30 to 40 feet from the plant. Salt was added to the 

sand which had passed through the screen and the mixture was stockpiled for 

winter use by New York for ice control on the State highways. 

The Botsford Pit consists of five levels which were being mined by 

various entities. New York was mining only on level 2. In that area, th·e 

Botsford Pit is described as being 150 feet in diameter with an 11-foot 

high face. The material being extracted from the face ranged in size from 

fine sand to cantaloupe size particles. There were no trees, trash, or large 

stones in the area being mined. There was an access road to level 2 which 

was on a grade. The equipment at the Botsford Pit on the day of inspection, 

June 27, 1979, was as follows: a Barber-Greene screen, a front-end loader, 

a truck mounted shovel, and two dump trucks. Four employees were present 

1755 
on the date of inspection. The procedure followed in extracting the minerals 

and dumping them· int.c:)' the-hopper was the same as at. the Underwood Pit. However, at the end of the conveyor belt, the Barber-Greene screen permitted 

particles of up to 1-1/2 inches to pass. All larger size particles were 

discarded. Gordon Reimels, New York's resident engineer in charge of highway maintenance for _the area in question, testified that New York had specifications· that 1-1/2 inches was the maximum size to be used as shoulder fill 

for rebuilding roads. Some of the material passing through the screen was 

hauled away in dump trucks for reconstructing shoulders along state highways 

and the remainder was stockpiled for future use. The material which passed 

through the screen was used by New York for shoulder grad~, drainage backfill, and permanent repair of the State roads. 

Citation No. 220483 

Inspector Randall L. Gadway conducted an MSHA inspection of the Underwood Pit on July 5, 1978. At that time, he asked the foreman and three 

employees for proof of their current first aid training. None of those present had any such proof. The foreman was unable to locate a first aid train-

~ng certificate and was not sure if his training certificate had been issued 

within the last 3 years. There was no first aid material at the plant and no 

ambulance was on the site. Inspector Gadway testified that an employee at 

the site could sustain a severe injury and would require first aid to keep 

him alive until he got to a hospital. He testified that New York should have 

known about this violation since the pit had been previously inspected by 

MESA, the predecessor to MSHA. He believed that an injury was probable 

because an injured worker would go into shock if no first aid was adminstered. 

1756 

(.. 
Citation No~ 220484 

On the same day, ·at the Underwood Pit, Inspector Gadway observed that 

the backup alarm was not working while the front-end loader was moving in 

reverse. Tile operator of the loader had an obstructed view because he could 

not see a person standing 3 feet behind the loader. No other employee 

served as an observer for the loader operator. Tile operator of the loader 

stated that the backup alarm was malfunctioning and that had been reported. 

He did not indicate when that report had been made. Although there was no one 

on foot in the innnediate area,. there was one worker in the vicinity of the 

hopper approximately 20 to 30 feet from the loader. In this case, Inspector 

Gadway did not believe that .the violation would have been apparent to New York 

since his experience indicated that backup alarms easily malfunction. Tile 

violation in this case could result in the loader running over a person or 

vehicle. One person would be affected. Tile gravity of the violation would 

range between a miner being brushed to a fatality. Inspector Gadway believed 

that an accident was probable. 

Citation No. 219993 

On June 27, 1979, MSHA Inspector Ronald Mesa conducte4 an inspection of 

the Botsford Pit. He found that there were 13 exposed idler rollers on the 

conveyor belt which were not guarded. Tile pinch points were exposed. Tile 

foreman was present and the condition was obvious. One person was exposed to 

injury. New York should have known of this condition. Tile violation was 

abated by welding iron guards against the idler arms. 

1757 
Citation No. 219994 

On the same day, Inspector Mesa found that there was no berm on the 

elevated access road. This road was elevated 11 feet above the surface 

below. The condition was obvious. It should have been known to New York. 

He observed four loads being hauled on the road on that day. One person 

would be affected by· the possibility of a truck overturning. An accident 

could result in lost work days and permanently disabling injuries. Inspector 

Mesa was unaware of any history of accidents at this pit. 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of the parties have been considered, As noted, supra, New York's arguments based upon 

a lack of jurisdiction due to the tenth amendment to the Constitution and 

the fact that the products of its operations at the pits in question did not 

enter commerce or affect commerce have been rejected for the reasons set 

forth in the Appendix herein. However, there remains the question of whether 

MSHA has jurisdiction over the pits in question in light of the MSHA-OSHA 

Interagency Agreement. A resolution of that question depends upon whether 

either or both of these pits qualify as a "borrow pit" under that Agreement. 

With regard to the Underwood Pit, the evidence establishes that raw material 

ranging in size from fine sand to fist-size rocks is screened so that only 

sand sized particles (one-quarter inch or less) are used in combination with 

salt by New York to control ic.e on highways during the winter. As pertinent 

here, the MSHA-OSHA Interagency AgreP.ment provides, "extraction occurs * * * 

for use as fill materials by the extracting party in the form in which it is 

1758 
extracted.· * * * The material is used by the extracting party more for its 

bulk than its intrinsic qualities * * *·" While the term "fill" is not 

defined in the agreement, that term means, "material used to fill a cavity 

or passage." Dictionary of Mining, Mineral and Related Terms, Bureau of 

Mines, Department of Interior, 1968. Thus, it is obvious that the material 

extracted by New York from the Underwood Pit for the purpose of controlling 

ice on highways during the winter is not "for use as fill materials." It 

is used for its intrinsic abrasive qualities. Since New York does not use 

the sand for fill materials, but rather for its intrinsic qualities, the 

Underwood Pit is not a "borrow pit" within the meaning of the MSHA""".OSHA 

Interagency Agreement. 

With regard to the Botsford Pit, the evidence establishes that some of 

the material processed by New York through the Barber-Greene screen is used 

as fill materials. However, New York specifies that only materials up to 

1-1/2 inches in diameter can be used as fill material. Since the BarberGreene screen separates the raw materials into groups which the particles 

range between maximum and minimum size, i.~., particles ranging from fine 

sand up to 1-1/2 inches in diameter pass through the screen and particles 

in excess of 1-1/2 inches in diameter do not pass through ~he screen, this 

constitutes "sizing" as defined in the MSHA-OSHA agreement, not as a scalping screen as asserted by New York. Likewise, since "sizing" is included 

within the term "milling" and "milling" is prohibited in a "borrow pit," the 

Botsford Pit is not a "borrow pit" within the above agreement. For the above 

reasons, I find that neither the Underwood Pit nor the Botsford Pit is a 

"borrow pit" as that term is defined in the MSHA-OSHA Interagency Agreement. 

Therefore, both pits are subject to MSHA jurisdiction. 

1759 
Citation No. 220483 

This citation alleges the following: "Current first aid training was 

not provided to selected supervisors and interested employees at the pit." 

It is required by 30 C.F.R. § 56.18-10 that selected supervisors should be 

trained in first aid and such training shall be made available to all interested employees. The evidence in this case does not support a finding of a 

violation of this standard. The evidence establishes only that none of New 

York's employees at the Underwood Pit on the date of this inspection had a 

current first aid card. The regulation does not require that the supervisor 

present at the mine shall have evidence of current first aid_ training. There 

is no evidence of record concerning the availability of first aid training 

to other interested employees. The citation is vacated. 

Citation No. 220484 

The evidence establishes that the backup alarm on the front-end loader 

of the Underwood Pit was inoperable at the time of inspection. The operator 

had an obstructed view to the rear and no observer was present to signal him. 

I find that MSHA has established a violation of 30 C.F.R. § 56.9-87. The 

inspector's testimony that the operator could not have been_expected to know 

of this condition prior to the issuance of the citation is rejected for the 

reason that the loader operator reported the malfunctioning alarm but New York 

failed to provide an observer for the vehicle as required by the regulation. 

Citation No. 219993 

The evidence establishes that there were 13 exposed idler rollers on 

the conveyor belt at the Botsford Pit on the date of the inspection. Pinch 

1760 
points were exposed which could be expected to result in physical injury. 

New York is chargeable with ordinary negligence since the condition was 

obvious and it should have known of the violation. I find that MSHA has 

established a violation of 30 C.F.R. § 56.14-1. 

Citation No. 219994 

The evidence establishes that there was no berm on the outer bank of 

the access road at the Botsford Pit. This was an elevated roadway with an 

11-foot drop. This condition was obvious and New York should have known of 

the existence of the violation. I find that MSHA has established a violation 

of 30 C.F.R. § 56.9-22. 

FINDINGS OF FACT 

1. The materials extracted from the Underwood Pit were used on the 

highways to control ice in winter and not as "fill" and, therefore, the 

Underwood Pit was not "borrow pit" as that term is defined in the MSHA-OSHA 

Interagency Agreement. 

2. New York's operation of the Botsford Pit involved "sizing" of the 

raw material and, therefore, the operation of the Botsford-Pit was not a 

"borrow pit" as that term is defined in the MSHA-OSHA Interagency Agreement. 

3. There is no evidence of record which establishes that, at the Underwood Pit, New York failed to train selected supervisors in first aid or failed 

to make first aid training available to all interested employees as alleged 

in Citation No. 220483. 

1761 
4. - The backup alarm of the front-end loader operated by New York at 

the Underwood PTt was· inoperable at the time the operator of the loader had 

an obstructed view to.the rear and no observer was present to signal the 

operator as alleged in Citation No. 220484. 

5. Exposed moving idler rollers on the conveyor belt at the Botsford 

Pit could be contacted by persons and cause injury and were not guarded as 

alleged in Citation No. 219993. 

6. No berm or guard was provided on the outer bank of the elevated 

access road at the Botsford Pit as alleged in Citation No. 219994. 

CONCLUSIONS OF LAW 

1. An administrative law judge has jurisdiction to determine whether 

the Act may be constitutionally applied to the facts. 

2. Mining sand and gravel is not an integral or essential part of 

New York's traditional function of road maintenance; therefore, the regulation of such mining by MSHA does not violate the tenth amendment. 

3. The mining of sand and gravel by New York affects commerce and is 

subject to MSHA regulation. 

4. New York's operation of the Underwood Pit did not constitute a 

"borrow pit" and, hence, is subject to MSHA jurisdiction. 

s. New York's operation of the Botsford Pit did not constitute a 

"borrow pit" and, hence, 1S subject to MSHA jurisdiction. 

1762 

... 

,::,: 
6. The undersigned judge has jurisdiction over the parties and subject 

.--- matter of the above proceedings. 

7. New York did not violate 30 c.F.R. § 56.14~1 and Citation No. 220483 

is vacated and the proposal for a civil penalty thereon· is dismissed. 

8. New York violated 30 C.F.R. § 56.9-87 by failing to provide a frontend loader with an audible backup alarm as alleged in Citation No. 220484. 

Based upon the statutory criteria for assessing a civil penalty for a violation of a safety standard, New York is assessed a penalty of $50 for this 

violation. 

9. New York violated 30 c.F.R. § 56.14-1 by failing to guard exposed 

moving machinery as alleged in Citation No. 219993. Based upon the statutory 

criteria for assessing a civil penalty for a violation of a safety standard, 

New York is assessed a penalty of $52 for this violation. 

10. New York violated 30 C.F.R. § 56.9-22 by failing to provide a berm 

or guard on the outer bank of an elevated road as alleged in Citation 

No. 219994. Based upon the statutory criteria for assessing a civil penalty 

for a violation of a safety standard, New York is assessed a penalty of $52 

for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Citation No. 220483 is VACATED and the 

proposal for a civil penalty thereon is DISMISSED. 

1763 
It is further ORDERED that New York shall pay the Secretary of Labor the 

. - --

above assessed civil penalties in thr total amount of $154 within 30 days 

from the date of this decision. 

a 

Laurens 

Distribution Certified Mail: 

Deborah B. Fogarty, Esq., Office of the Solicitor, u.s. Department of 

Labor, 1515 Broadway, New York, NY 10036 

William s. MacTiernan, Associate Attorney, Legal Services Bureau, 

New York State Department of Transportation, Building 5, Room 509, 

State Campus, Albany, NY 12232 

1764 
FEDERAL MfNc SAFETY AND HEALTH REVIE~ ~OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

.. 

. Docket Nos. YORK 79-21-M 

WILK 79-102-PM 

YORK 80-2-M 

Petitioner 

v. 

NEW YORK DEPARTMENT OF 

TRANSPORTATION, 

• Underwood Pit 

Botsford Pit 

Appearances: 

Before: 

Respondent 

ORDER DENYING MOTIONS TO DISMISS 

Jonathan Kay, Esq., Anthony C. Ginetto, Esq., and Deborah B. 

Fogarty, Esq., Office of the Solicitor, U.S. Department of 

Labor, New York, New York, for Petitioner; 

William S. MacTiernan, Esq., Legal Services Bureau, New York 

State Department of Transportation, Albany, New York, for 

Respondent.· 

Judge James A. Laurenson 

Procedural History 

1be above three cases are civil penalty proceedings arising out of 

citations issued by inspectors employed by the Mine Safety and Health Administration (hereinafter MSHA). MSHA charged the New York Department of 

Transportation (hereinafter State) with violations of regulations promulgated under the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(hereinafter the Act), in the operation of sand and gravel pits. The State 

moved to dismiss these actions because it claimed that MSHA and the Federal 

Mine Safety and Health Review Commission (hereinafter Commission) lacked 

jurisdiction over the State and the pits. 

APPENDIX 1765 
Issues 

1. Whether the pits in question are under the jurisdiction of MSHA. 

2. Whether the Commission can decide that the Act may be constitutionally 

enforced against a state. 

3. Whether enforcing the Act against the State violates the tenth 

amendment. 

4. Whether the State's activities are within the coverage of the Act. 

Facts 

The State contends that the Underwood Pit is an area of land from which 

the State extracts and stores sand for highway maintenance. The usual procedure is for several men to spend about 8 days a year at the site. The men 

extract material from the bank of the pit and dump it into a hopp~r. The 

material is then transported by a conveyor belt to a Telesmith screening plant 

where it is separated by size. The sand that is separated is stored in piles 

until winter when it is used on the highways for snow and ice control. The 

Botsford Pit involves a similar operation. Gravel is removed from the pit 

and a Barber-Green screening plant is used to separate larger from smaller 

size stones. The material is used as fill, shoulder fill, or drainage 

backfill. 

MSHA Jurisdiction over Pits 

Based upon these facts the State has moved to dismiss these actions on 

the grounds that MSHA does not have jurisdiction over the Underwood Pit or 

APPENDIX 

1766 
the Botsford Pit. The motion to dismiss will be considered to be a motion 

for summary decision under our rules. Summary decision shall be granted 

"only if the entire record, including the pleadings, depositions, answers 

to interrogatories, admissions, and affidavits shows: (1) that there is no 

issue as to any material fact and (2) that the moving party is entitled to 

summary decision as a matter of law." 29 C.F.R. § 2700.64(b). 

MSHA has authority to administer the Act which applies to all "mines." 

A mine is defined in the Act, 30 U.S.C. § 802(h), as "an area of land from 

which minerals are extracted in non liquid form." The Underwood Pit and the 

Botsford Pit meet that definition. They are, therefore, mines and within the 

reach of the Act. Consequently, MSHA would have jurisdiction over them. 

However, MSHA has issued a formal interagency agreement to define its jurisdiction vis-a-·1is the Occupational Safety and Health Administration (hereinafter OSHA) in which it has limited its jurisdiction. Interagency Agreement 

between MSHA and OSHA, U.S. Department of Labor, dated March 29, 1979. 

44 Fed. Reg. 22827 (April 17, 1979). That agreement states that "borrow 

pits" are subject to OSHA jurisdiction. A borrow pit is defined as: 

[A.Jn area of land where the overburden, consisting of unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction 

occurs on a one-time only basis or only intermittently as 

need occurs, for use as fill materials by the extracting 

party in the form in which it is extracted. No milling is 

involved, except for the use of a scalping screen to remove 

larger rocks, wood and trash. The material is used by the 

extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit. MSHAOSHA Interagency Agreement, para. B(7), 44 Fed. Reg. 2282~ 

(1979). 

APPENDIX 

1767 
The State-contends that the Underwood Pit and the Botsford Pit come within 

the definition of a borrow pit and therefore are not under the jurisdiction 

of MSHA. MSHA argues that the pits do not meet the criteria for a borrow 

pit for several reasons and are, therefore, under MSHA jurisdiction. Each 

side has submitted affidavits describing the facts concerning the operation 

of the pits. 

MSHA contends that the use of a screening plant at the pits constitutes 

milling. The agreement defines a borrow pit as not involving milling. The 

State argues that the screens are scalping screens used to remove large 

rocks, wood and trash. Use of a scalping screen to remov~_debris at a borrow 

pit is permitted under the agreement. Thus, the question is whether the use 

of the screen at the pits is milling or scalping. Milling is defined in the 

agreement as "the act of treating the crude crust of the earth to produce 

therefrom the primary consumer derivatives. The essential operation in all 

such processes is separation of one or more valuable desired constituents of 

the crude from the undesired contaminants with which it is associated." 

Milling 1s also defined 1n the agreement as including sizing. Sizing is 

defined as "the process of separating particles of mixed sizes into groups 

of particles of all the same size or into groups 1n which particles range 

between maximum and minimum size." The distinction between sizing and the 

use of a scalping screen to remove large rocks is not great and requires a 

close examination of all relevant facts. 

MSHA next contends, with regard to the Underwood Pit, that the pit does 

not meet the definition of a borrow pit because the material extracted is 

not used as fill, but rather that it is used more for its intrinsic abrasive 

APPENDIX 

1768 
qualities than for its bulk. "Fill" in this sense is defined as "material 

used to fill a cavity or passage." Dictionary of Mining, Mineral, & Related 

Terms, Bureau of }lines, Department of Interior, 1968. It seems that the sand 

was not used for fill in this usual sense. The State argues that the fact 

that the material was not used as fill in the "conventional meaning of the 

word" is not crucial because MSHA "has dismissed numerous other citations 

with respect to sand extracting operations where sand was to be used for 

highway sanding in the winter season on the basis that such operations were 

reviewed and found to be borrow pits." The State's argument is not relevant. 

USHA also argues that the pits should be subject to tLSHAjurisdiction .--

because OSHA would have no jurisdiction over the pits. Paragraph B(S) of the 

interagency agreement lists factors in determining whether a particular 

facility is subject to MSHA or OSHA regulation. One factor is the enforcement capability of the agency. States are excluded from the jurisdiction of 

OSHA. MSHA argues that it should therefore be deemed to have jurisdiction 

over the pits. This argument is not relevant. 

The affidavits of the parties establish that there is an issue as to 

whether the State's operation of the pits includes milling which would subject the pits to MSHA jurisdiction or a scalping screen which would preclude 

MSHA jurisdiction. \·fl1ether the screening done at the Underwood Pit and the 

Botsford Pit is for sizing or as a scalping screen is a material fact which 

is at issue. Thus, the State has not met its burden of showing that there 

is no issue as to any material fact and that it is entitled to summary decision as a matter of law. The facts, as presented thus far, require a hearing 

to make that determination. 

APPENDIX 

1769 
Authority to Determine Constitutional Issue 

'lhe State contends that the Act cannot constitutionally be applied to 

a state. MSHA argues that the Commission cannot reach that issue because 

neither the Commission nor its administrative law judges has the power or 

competence to pass on the constitutionality of the statutes under which they 

operate. 

In several cases, the Supreme Court has impliedly or without detailed 

analysis stated that an.administrative agency cannot entertain constitutional 

is~ues. The question generally arises when the Court is deciding whether to 

hear an appeal or to remand a case because a par~y has-not exhausted its 

administrative remedies. Public Utilities Commission v. United States, 

355 U.S. 534 (1955), dealt with a state statute which expressly gave a state 

commission the right to set rates between private common carriers and the 

United States. The United States contended that the statute was unconstitutional and brought suit in federal court. The Supreme Court held that the 

United States did not first have to raise the issue with the state commission 

because "[t]he issue is a constitutional one that the Commission can hardly 

be expected to entertain." Id. at 539. Justice Harlan concurring in 

Oestereich v. Selective Service Board No. 11, 393 U.S. 233 (1968), relied on 

Public Utilities Commission v. United States, supra, for the proposition that 

"[a]djudication of the constitutionality of congressional enactments has 

generally been thought beyond the jurisdiction of administrative agencies." 

Oestereich v. Selective Service Board No. 11, supra at 212. In Oestereich v. 

Selective Service Board No. 11, supra, the majority struck down a section of 

th~ Selective Service Act which prevented judicial intervention into the 

APPENDIX 

1770 

:~ 
decisions of draft _boards. The Court did not directly confront the exhaustion 

of administrative remedies issue. In Johnson v. Robison, 415 U.S. 361 (1974), 

the Court was confronted with a similar issue and grounded part of its deci.:.. 

sion on the fact that the Board of Veterans' Appeal followed the principle 

stated by Justice Harlan in Oestereich v. Selective Service Board No. 11, 

supra. Finally, in Weinberger v. Salfi, 422 U.S. 749 at 765 (1975), the 

Court stated that "the constitutionality of a statutory requirement [is] a 

matter which is beyond [the Secretary's] jurisdiction to determine." That 

case involved a suit brought by an individual in federal court challenging 

sections of the Social Security Act. The Court held that the exhaustion 

.. · 

requirements had been met even though there was no final decision by the 

Secretary in the usual sense. The final decision requirement was met by the 

Secretary's finding that the only issue was the constitutionality of a statutory requirement. The issue being beyond his competence, he had decided all 

that he had jurisdiction to decide. 

These cases provide language which supports MSHA's contention that the 

Commission does not have power to decide constitutional issues. However, 

these cases are clearly distinguishable from the present case by the type of 

administrative agencies involved and the context in which they arose. The 

most important distinction is that in all four cases, the Court was interpreting the constitutionality of the express-wording of the statute: i.~., 

whether it was constitutional on its face. In the present case, no one is 

contending that the s~atute is unconstitutional on its face, rather, the 

State contends that it is unconstitutional as applied. 

APPENDIX 

1771 
Several recent federal court cases have more closely scrutinized the 

power of an administrative agency to decide constitutional questions. In 

these cases, the difference between whether the court was deciding the facial 

validity of a statute or the statute's application to facts has been determinative. In Marshall v. Babcock & Wilcox Company, 1979 OSHD 29,013 (3d 

Cir., Nov. 16, 1979),. an employee moved in district court to quash warrants 

for OSHA inspections. The employer argued that it did not have to exhaust 

its administrative remedies because it was raising constitutional challenges 

to the inspections. The district court held that the administrative route 

must be taken first and that decision was affirmed by the circuit court. 

The court stated that Occupational Safety and Health tlieReview Commission 

(hereinafter OSHRC) could consider fourth amendment motions to suppress evidence "consonant with its limited role under the Constitution, not by reviewing the constitutionality of its statute but by interpreting the statute and 

by applying constitutional principles to specific facts." Id. The court 

here approved the distinction first set out by Davis in his Treatise on 

Administrative Law. Davis articulated the distinction by stating: 

A fundamental distinction must be recognized bet~een 

constitutional applicability of legislation to particular 

facts and constitutionality of legislation. When a tribunal 

passes upon constitutional applicability it is carrying out 

the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of 

the legislation the question is whether·it shall take 

action which runs counter to the legislative intent. We 

commit to administrative agencies the power to determine 

constitutional applicability, but we do not commit the 

administrative agencies the power to determine constitutionality of legislation. 3 K. Davis Administrative Law 

Treatise, § 20.04 at 74 (1958). 

APPENDIX 

1772 
The court considered and rejected the reasoning of Weyerhauser Company 

v. Marshall, 592 F.2d 373 (7th Cir. 1979), a case which had held that exhaustion was not required when the party was raising a fourth amendment claim 

concerning a warrant. The decision in Weyerhauser Cor.rpany v. Marshall, 

suora, was based on the conclusion that the OSHRC would not rule on the issue 

of a warrant's validity-and that no factual basis need be developed in determining the warrant's validity. The court in Marshall v. Babcock & Wilcox 

Cocman'l, suora, disagreed and held that OSHRC should first apply the facts 

to constitutional principles. 

The sane distinction made by the Marshall v. Babcock Wilcox Company, 

sunra, court and Davis in his Administrative Law Treatise was approved by the 

Fifth Circuit in McGowan v. Marshall, 1979 OSHD 29,044 (5th Cir., Oct. 23, 

1979). That case also involved the issue of exhaustion of administrative 

remedies. The appellant had raised several issues in district court. The 

court of appeals held that the factual issues and a fourth amendment claim 

which required a factual finding must first be submitted to the OSHRC, 

whereas a frontal attack on the facial const~tutionality of a section of 

the statute need not be submitted to the administrative agency because "the 

Comr:lission has no power to declare unconstitutional the Act that it is authorized to adrainister." Citing Oestereich v. Selective Service Board No. 11, 

sunra. 

In two cases decided by judges of this Cor.imission, a similar distinction 

has been made. In Secretary v. Waukesha Lime and Stone Company, Inc., Docket 

No. VI!JC 79-66-PM, June 5, 1979, the respondent contended that a nonconsensual 

inspection of its premises without a valid search warrant violated its fourth 

APPENDIX 

1773 
amendment rights. Therefore, Chief Judge James A. Broderick had to decide 

whether section 103(a) of the Act, 30 tJ.s.c. § 813(a), which permits nonconsensual warrantless inspections of mines, was constitutional. He stated that 

as a general rule, "an administrative agency does not have power to rule on 

constitutional challenges to the organic statute of the agency," but that "it 

is the responsibility of an administrative agency to determine whether a 

provision of the statute it administers may constitutionally be applied to 

facts found by the agency." He also stated that construction of the statute 

is the duty of the agency and that the statute should be "construed to avoid 

conflict with the Constitution." Judge Charles C. Moore, Jr. in Secretary 

v. Probst and Stample, Docket No. MORG 76-28-P, August--3f, 1978, was confronted with the same kind of issue. In that case, the respondents contended 

that section 109(c) of the Federal Coal Mine Health and Safety Act of 1969 on 

its face discriminated against employees of corporations in violation of 

their constitutional rights. Judge Moore held that an administrative agency 

has no power to "declare a portion of its own organic act unconstitutional." 

Judge Moore also stated, however, that the principle that "agencies and their 

judges cannot deal with constitutional issues" is "a vast overstatement" 

because judges constantly must deal with constitutional issues in conducting . 

hearings and applying the law. The Commission heard oral argument in this 

case on March 12, 1980, to decide whether the Commission has the authority 

to decide whether a provision of the Act is unconstitutional. 

I agree with the principle expressed by Davis in his Administrative Law 

Treatise and the courts in Marshall v. Babcock Wilcox Company, supra, and 

McGowan v. Marshall, supra, that ev.en if the Commission does not have the 

APPENDIX 

1774 
jurisdiction to declare a section of the Act facially invalid, it does have 

jurisdiction to determine.whether the Act may be constitutionally applied 

to the facts. Because that is the issue present here, I find that I have 

jurisdiction to make the determination. 

Tenth .Amendment Issue 

The State contends that the tenth amendment as interpreted in National 

League of Cities v. Usery, 426- U.S. 833 (197.6) prevents MSHA from enforcing 

the Act against the State operations involved here. In National League of 

Cities v. Usery, supra., the Supreme Court held that Congress could not 

extend the Fair Labor Standards Act to employees of state-governments. The 

Court did not say that such an application of law was beyond the reach of 

the commerce clause standing alone, but that under some circumstances, 

Congress' exercise of its powers within the scope of the commerce clause may 

transgress limitations created by the tenth amendment. There are "attributes 

of sovereignity attaching to every state government which may not be impaired 

by Congress." Id. at 845. The Court decided that "[one] undoubted attribute 

of state sovereignity is the States' power to determine the wages which shall 

be paid to those whom they employ in order to carry out their governmental 

functions." Ibid. The Court posed the issue "whether these determinations 

are * * * functions essential to separate and independent existence * * * " 

Ibid. The court determined that enforcing the Fair Labor Standards Act 

against the State would "significantly alter or displace the States' abilities to structure employer-employee relationships in * * * activities * * * 

typical of those performed by state or local governments" and would therefore 

APPENDIX 

1775 
leave little left of the States' * * * separate and independent exlstence." 

Id. at 851. The Court held that "insofar as the challenged amendments operate to directly displace the States' freedom to structure integral operation6 

in areas of traditional governmental functions, they are not within the 

authority granted Congress" by the commerce clause. Id. at 852. Later in 

its opinion, the Court formulated its ruling to be that "Congress may not 

exercise * * * [the power to regulate commerce] * * * so as to force directly 

upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made." Id. at 855. 

The test then is whether enforcing the Federal Mine _Sa-fety and Health --· .-

Act against the State operation involved here would directly displace the 

State's freedom to structure integral operations or essential decisions in 

areas of traditional governmental functions. The State argues that road 

maintenance is an area of traditional governmental function and, therefore, 

Congress cannot regulate it. MSHA argues that mining sand or gravel is not 

a traditional governmental function and, therefore, Congress can regulate it. 

The issue is not as simple as either contends; the issue is whether mining 

sand or gravel for use in maintaining roads is an integral operation in an 

area of traditional governmental function. 

In National League of Cities v. Usery, supra, the Court upheld the holding of two earlier cases, United States v. California, 279 U.S. 182 (1936), 

and Parden v. Terminal Railroad Company, 377 U.S. 184 (1964), even though it 

overruled the reasoning in those cases. Those two cases involved state railroads that were operated in conjunction with state-owned and operated docks. 

In its opinion, the court did not discuss the fact that the railroads were 

APPENDIX 

1776 
operated in conjunction with state docks (arguably a .state function) but just 

view·ed them as "engage°d- in 'common carriage by rail in interstate commerce 

***,'"and held that they could be regulated. National League of Cities v. 

Usery, supra at 854. 

A number of federal district and circuit courts cases have addressed 

this issue with disparate results: In Jordan v. Mills, 473 F. Supp. 13 

(E.D. La. 1979) the court held that a state-run prison store was not subject 

to the federal antitrust statutes bec~use of the tenth amendment. The court 

found that running a prison was a fundamental State function and that a 

store was an integral part of running a prison. The court reasoned that one 

had to determine if the activity itself was a traditional governmental function or if it was "integrally operative to such a function." In Friends of 

the E.:lrth v. Carey, 552 F.2d 25 (2d Cir. 1977), cert. denied, 434 U.S. 902 

(1977), the court held that an EPA order that the city comply with an antipollution plan with regard to traffic control was not violative of the tenth 

amendment. Yne court reasoned that the program was not a substantial interference with an integral governmental program or service. The court also 

stated that traffic plans, at least near New York City, were not areas of 

exclusive State control but cooperative. ventures between l~cal, state, and 

federal governments. The court in California v. Blumenthal, 457 F. Supp. 

1309 (E.D. Cal. 1978), held that a statute which required states to file 

forms concerning employees for ERISA did not violate the tenth amendment. 

The court stated that 11 [t]he instant case is a far cry from one involving 

'fundamental employment decisions upon which [the States'] systems for performance of [their governmental] functions must rest'." The court in 

APPENDIX 

1777 
Amersback v. City of Cleveland, 598 F.2d 1033 (6th Cir. 1979), held that 

employees of the-munfoipal-airport came under the ruling in National League 

of Cities v. Usery, supra, because the operation of a municipal airport is 

an integral government function. The court noted certain elements that 

define which government functions are protected: 

(1) the government service or activity benefits the community as a whole and is available to the public at little or 

no direct expense; (2) the service or activity is undertaken 

for the purpose of public service rather than for pecuniary 

gain; (3) government is the principal provider of the service or activity; and (4) government is particularly suited 

to provide the service or perform the activity because of a 

communitywide need for the service or activity. Id. at 1037. 

In Public Service Company v. Federal Energy Regulatory Board, 587 F.2d 716 

(5th Cir. 1979), cert. denied, 100 S. Ct. 166 (1979), the court had to decide 

whether federal regulation of state-owned gas which was used to support the 

public schools violated the tenth amendment under National League of Cities 

v. Usery, supra. The court held that the federal regulations would not 

directly displace a traditional state governmental ~1nction because the 

indirect effect on education "comes nowhere near constituting a Federal 

usurpation of state control over public education in Texas." Finally, in 

State Department of Transportation v. United States, 430.F. Supp. 823 (N.D. 

Ga. 1976), the court held that a federal tax on a state airplane used for 

state business violated the tenth amendment under National League of Cities 

v. Usery, supra. 

To decide whether a state activity is protected from federal regulation 

by the tenth amendment, it is necessary to determine whether the activity to 

APPENDIX 

1778 
be regulated is itself a traditional governmental function (using the 

crit~ria expressed in Amersback v. City of Cleveland, supra), or, if is not 

a traditional governmental function, whether it is an integral or essential 

part of a traditional governmental function. 

I find that mining sand and gravel is not a traditional governmental 

function; maintaining roads is such a function. (But cf., Friends of the 

Earth v. Carey, supra). Comparing the facts in this case with the federal 

decisions, mining is not an integral or essential part of the State function. 

MSHA regulation of the State's mining is "nowhere near usurpation of state 

control" over road maintenance. See Public Service Company v. Federal 

Energy Regulatory Board, supra. The instant case is a "far cry from one 

involving 'fundamental employment decisions upon which [the States'] systems 

for performance of [their governmental] functions must rest."' California v. 

Blumenthal, supra. The facts of the instant cases are most analagous to 

United States v. California, supra, and Parden v. Terminal Railroad Company, 

supra. Like the operation of docks, maintaining roads is a traditional state 

function; like operating a railroad, operating sand and gravel pits is not 

a traditional state function. The Court in National League of Cities v. 

Usery, supra, held that the railroads in United States v. California, supra 

and Parden v. Terminal Railroad Company, supra could be regulated, even 

though they were operated to facilitate an arguably traditional state function. Similarly, sand and gravel pits may be regulated even if operated to 

facilitate a traditional state function. Because mining and gravel is not 

an integral or essential part of the State's traditional function of road 

maintenance, it is not protected from federal regulation by the tenth 

APPENDIX 

1779 
t:ommerce- Clause 

Lastly, the State contends that MSHA's jurisdiction does not extend to 

the subject operation "because the products thereof did not enter commerce 

nor did the operation or products thereof affect commerce." Section 4 of 

the Act provides: "Each coal or other mine, the products of which enter 

commerce, 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." 30 U.S.C. § 803. The State argues that because 

the sand and gravel was used by the State and not sold, it did not enter 

commerce and because it did not enter commerce it did not affect commerce. 

The State relies on Morton v. Bloom, 373 F. Supp. 797 (W.D. Pa. 1973). 

That case involved a one-man Pennsylvania coal mine, the coal from which 

was sold only in Pennsylvania. The court held in Morton v. Bloom, supra, 

that the mine was not subject to the Act. The cour~ reasoned that Congress 

did not intend to subjugate a one-man owner-operated mine to the requirements of the Act because it was not necessary to do so to insure the purpose 

of the Act: the safety of the miner. The court further held that the mine 

did not affect commerce because the operator did not substantially interfere 

with the regulation of interstate commerce. 

However, the meaning of "affect commerce" is broader than the State's 

contention or the reasoning in Morton v. Bloom, supra. In enacting the mine 

safety statutes, Congress intended to exercise its authority to regulate 

interstate commerce to "the maximum extent feasible through legislation." 

Secretary v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976), quoting S. Rep. 

APPENDIX 

1780 
~o. lU55, 89th Cong., 2d Sess. 1 (1966), U.S. Code Congressional and Administrative News, 89th Cong., 2d Sess. 2072. The Supreme Court stated in Fry v. 

United States, 421 U.S. 542 at 547 (1974): 

Even. activity that is purely intrastate in character may 

be regulated by Congress, where the activity combined with 

like conduct by others similarly situated, affects commerce 

among the States or with foreign nations. See Heart of 

Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 255, 13 L.Ed.2d 

258, 85 S. Ct. 348 (1964); Wickard v. Filburn, 317 U.S. 111, 

127-128, 87 L.Ed.2d 122, 63 S. Ct. 82 (1942). 

In Wickard v. Filburn, supra, the Court held that wheat grown by an 

individual solely for his own consumption was subject to federal regulation 

because it supplied the needs of the individual which otherwise would 

have to be met in the open market. In Marshall v. Kilgore, 478 F. Supp 4 

(E.D. Tenn. 1979), the court relied on Wickard v. Filburn, supra, in finding that coal which was sold intrastate still affected connnerce. The court 

therefore held that the mine which produced the coal was under the coverage 

of the Act. See also Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978). 

Applying the rationale of these cases to the facts presented here, the 

State's operations affect commerce because if the State did not operate the 

pits, it would have to obtain its sand and gravel in the open market. In 

its brief in regard to the Botsford Pit, the state concedes that it seeks 

the most inexpensive source for its gravel (Brief at 6), implying that if 

it did not operate the pit, it would acquire the gravel elsewhere. Since 

the State's operations affect commerce, they are subject to coverage by the 

Act. 

APPENDIX 

1781 
¥indin~s and Conclusions 

1. The State has not established that the Underwood Pit and the Botsford 

Pit are borrow pits within the definition of that term. in the Interagency 

Agreement between MSHA and OSHA. That issue must be resolved after a hearing. 

2. An administrative law judge has jurisdiction to determine whether 

the Act may be constitutionally applied to the facts. 

3. Mining sand and gravel is not an integral or essential part of the 

State's traditional function of road maintenance; therefore, the regulation 

of such ~ining by MSHA does not violate the tenth amendment. 

4. The mining of sand and gravel by the State affects commerce and is 

subject to MSHA regulation. 

ORDER 

THEREFORE, IT IS ORDERED that respondent's motions to dismiss are 

DENIED. 

Issued: March 21, 1980 

Distribution: 

Jjm'·s A. Laurenson, Judge 

~ ·-

l. 

Jonathan Kay, Esq., U.S. Department of Labor, 1515 Broadway, New York, 

NY 10036 (Certified Mail) 

Anthony C. Ginetto, Esq., U.S. Department of Labor, 1515 Broadway, 

New York, NY 10036 (Certified Mail) 

Deborah B. Fogarty, Esq., U.S. Department of Labor, 1515 Broadway, 

New York, NY 10036 (Certified Mail) 

William S. MacTiernan, Associate Attorney, Legal Services Bureau, 

New York State Department of Transportation, Building 5, Room 509, 

State Campus, Albany, NY 12232 (Certified Mail) 

APPENDIX 

1782 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

OLD BEN COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

(formerly mining enforcement 

and safety administration), 

Respondent 

3 JUL 19AO 

Application for Review 

Docket No. VINC 75-313 

Mine No. 21 

DECISION 

Before: Chief Administrative Law Judge Broderick 

STATEUENT OF THE CASE 

This proceeding was one of four similar proceedings in which 

the parties waived their rights to an evidentiary hearing and submitted the cases for decision on the basis of the pleadings. The 

Application was limited by applicant's "partial withdrawal of 

issues" filed May 20, 1976, to its contention that "the underlying 

notice of violation and order of withdrawal issued pursuant to 

section 104(c)(l) of the Act were unlawfully issued and thus provide 

no basis for the issuance of the subject order of withdrawal * * *·" 

Because the underlying notice and withdrawal_ orde~s were 

challenged in a proceeding then pending before the Board of Mine 

Operations Appeals (which came before the Commission under section 301 of the Federal Mine Safety and Health Amendments Act), 

the case was continued by order of July 25, 1977. 

COMMISSION DECISION 

On June 2, 1980, the Commission issued its decision which upheld 

my decision of July 16, 1975, and affirmed the challenged withdrawal 

orders, including Order of Withdrawal No. 1 MK issued October 21, 

1974, which is the order "underlying" the withdrawal order under 

review herein. 

1783 
_Based upon the Commission decision, I conclude that the underlying notice and order were validly issued. Therefore, the order 

reviewed herein;-being-Order No. 1 LDC, December 27, 1974, was 

validly issued, and must be affirmed. 

ORDER 

It is ordered that Order of Withdrawal No. 1 LDC, December 27, 

1974, is AFFIRMED, and the application for review is DISMISSED. 

; _,.., --, 1 I) Y. d/v··~ -~ James 

c Chief 

Distribution: 

.' /v!B rv dz/~ ~d A. Broderick 

Administrative Law Judge 

Edmund J. Moriarty, Esq., Old Ben Coal Company, 125 So. Wacker 

Dr., Chicago, IL 60606 (Certified Mail) 

Michael V. Durkin, Esq., Trial Attorney, Office of the Solicitor 

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

Hail) 

Assistant Administration, MSHA, U.S. Department of Labor, 4015 

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

1784 

~-= 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

v. 

THE ANACONDA COMPANY, 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

8 JUL 1980 

) 

) 

) 

) 

) 

) 

Petitioner, ) 

) 

) 

) 

) 

) 

Respondent. ) 

) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-128-M 

MSHA Case No. 24-00689-05003 

Mine: Weed Concentrator 

ERRATA SHEET 

The following error should be corrected in the Decision issued June 

13, 1980. On page 3, line 11 the amount of the proposed settlement should 

be $662 rather than $661. 

Distribution: 

-- Office of the Solicitor, United States Department of Labor, 1585 Federal 

Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Ann M. 

Noble, Esq. 

Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention: 

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

1785 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER'SOJ-BrA~g ao204 

) 

) 

) 

SECRETARY OF LABOR, 

Mi.NE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. NORT 78-395-P 

v. A/O NO. 44-04251-02011 I 

CLINCHFIELD COAL COMPANY, Mine: McClure No. 1 

Respondent. 

) 

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

Appearances: 

DECISION 

Michael C. Bolden, Esq., Office of the Solicitor, United 

States Depirtment of Labor, 

for the Petitioner, 

Gary W. Callahan, Esq., Clinchfield Coal Company, 

Lebanon, Virginia 24266 

for the Respondent. 

Before: Judge Virgil E. Vail 

Procedural History 

On July 27, 1978, the Mine Safety and Health Administration filed a 

petition for assessment of a civil penalty in the above-captioned proceeding 

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

1977, 30 U.S.C. § 820(a). The petition alleges a violation of provisions of 

the Code of Federal Regulations as set forth in a notice of violation issued 

pursuant to section 104(c)(l) of the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801. 

1786 
The above case was originally assigned to Judge William Fauver in 

conjunction with several.other civil penalty proceedings involving the same 

Respondent. By Notice of Hearing issued October 15, 1979, this case was 

scheduled to be heard at Abington, Virginia, on November 27, 1979. On 

October 19, 1979, Respondent moved to change the \'tearing site from Abington, 

Virginia to Arlington,. Virginia, and because of a conflict in the hearing 

schedule of Respondent's counsel, to continue the hearing date to either 

January 15, 1980, or February 5, 1980. Petitioner did not object and on 

Octobe.r 31, 1979, Judge Fauver granted the mot ion and issued an Order 

setting the hearing for February 5, 1980, at Arlington, Virginia. 

On February 1, 1980, Petitioner filed a motion to continue the hearing 

to April 1, 1980, and to change the hearing site back to Abington, Virginia. 

As grounds for the motion Petitioner stated that, the issuing inspector and 

the Secretary's key witness, Mr. James A. Baker, was no longer an employee 

of the Mine Safety and Health Administration and that after numerous 

attempts, the· Secretary was unable to secure Mr. Baker's presence at the 

prescribed hearing due to his busy business schedule, the great distance 

involved, and a lack of .subpoena authority beyond 100 miles. Judge Fauver 

in his Order stated that the Petitioner was in error as to the 100 mile 

limit on the subpoena power of the Commission and that there was no mileage 

or geographical limitation thereon. Judge Fauver further stated that the 

Petitioner had known of the February 5, 1980, hearing date and site for many 

months and denied the motion. Petitioner was allowed an additional day to 

subpoena Mr. Baker and the hearing was set for February 6, 1980. 

1787 
A review of a partial transcript of the hearing on February 6, 

1980; reveals tliat ·gr~ Baker was unable to attend the hearing due to adverse 

weather conditions and requested that he be relieved from honoring the 

subpoena. This request was granted by Judge Fauver. The Respondent's 

counsel took exception to granting a continuance in this case stating that 

their witnesses had .come to the hearing from New Mexico and Colorado, and 

the attorney from Abington, Virginia. Further, Respondent requested that if 

a continuance was granted, that the hearing be h~ld in Denver, Colorado, and 

that expenses and costs be assessed against the Government for travel and 

expenses for Respondent's counsel and witnesses. 

A review of the record shows a letter was mailed·o;·February 13, 1980, 

by Respondent's counsel, Gary W. Callahan, to Petitioner's counsel, Mike 

Bolden, which states as follows: 

"This letter is to confirm our conversation of Monday, 

February 11, 1980, at which time we tentatively agreed 

to have the trial in 78-395-P in Denver, Colorado, on 

May 7, 1980. I am sending a copy of this letter to 

Judge.Fauver and, of course, will wait his approval." 

On February 13, 1980, Respondent filed a Motion to Dismiss the above 

case asserting that the Government had failed to make a reasonable or 

diligent effort to have their witness at the hearing; that the Respondent 

had been prepared for the hearing and had brought their two witnesses from 

New Mexico and Colorado for the hearing and that to continue the case would 

make the Respondent's decision to.continue to resist the assessed penalty a 

questionable economic decision. 

1788 
Judge Fauver, having considered Respondent's letter of February 13' 

-· - --

1980, requesting a re location of the hearing site to Denver, Colorado, and 

motion to dismiss filed February 19, 1980, issued an Order on February 20, 

1980, denying the motion to dismiss and setting the hearing for May 7, 1980, 

in Denver, Colorado. Subsequently, the case was reassigned to the 

undersigned for further proceedings. 

A Notice of Hearing was issued, by the undersigned, on March 3, 1980, 

setting the hearing for May 7, 1980, at 9:00 a.m. in Denver, Colorado. 

On March 20, 1980, the Respondent filed a motion to assess costs with 

the undersigned restating the history of the case as outlined herein above. 

Said motion was opposed by the Petitioner by motion dated April l, 1980. 

The undersigned, i~sued an Ord~r dated April 8, 1980, denying the 

Respondent's motion to assess costs by reason of Judge Fauver's prior Order 

dated February 20, 1980, wherein he denied Respondent's previous motion to 

dismiss and granted the request for a change in the hearing site to Denver, 

Colorado, and implicit therein, denied Respondent's prior request for 

assessment of costs and expenses. A subsequent motion to dismiss dated 

April 7, 1980, was denied by the undersigned in an Order dated April 21, 

1980, wherein said motion to dismiss dated April 7, 1980, was con.sidered to 

be identical to the prior motion considered and denied by Judge Fauver. 

On April 29, 1980, Petitioner requested and was sent a subpoena 

requiring Mr. James A. Baker to appear at the hearing in Denver, Colorado on 

May 7, 1980 at 9:00 a.m. 

1789 
The _hearing convened on May 7, 1980, at 8:50 a.m. in Denver, 

Colorado, with M-ichae-l- C--; -Bolden appearing as counsel for the Petitioner and 

Gary W. Callahan appearing as counsel for the Respondent. At the 

commencement of the hearing, Mr. Bolden explained that Mr. Baker, the 

Government's witness, refused to come to the hearing and that without his 

testimony, the Government was unable to establish a prima facie case and 

Petitioner requested a continuance of the case. 

Respondent then moved again that the case be dismissed and said motion 

was granted in a decision from the bench as follows: 

"JUDGE VAIL: I see no justification for continuing to subject 

the Respondent in this case to additional expenses, and I am 

going to grant your motion to dismiss the citat-ion and the 

assessment of a penalty against the Clinchfield Coal Company. 

The basis for this is that I feel that the Petitioner should 

have secured a subpoena earlier and had it served on Mr. Baker, 

and then of course if he had failed to appear at this hearing, 

there is a proceeding for enforcing the compliance, but I feel 

that's the least that the Government should have done in this 

case; that with the history of Mr. Baker's uncooperativeness in the last instance, we could have foreseen, or the 

Government could have foreseen, additional problems. in having 

him appear here, and I feel that based on the fact that proper procedures were not followed in either securing his deposition or in serving him with an official subpoena in order to 

at least have him in violation of that, is failure on the 

part of the Government to take whatever basic necessary steps 

would have been necessary to prove their case. I think that 

there's merit to the argument of the Attorney for the Respondent 

that they have been prepared both in Virginia at the original 

hearing and again at the time of the continuation -for the 

subsequent hearing date set, and now here, they are prepared 

to proceed with their case, and having these expenses, and 

I feel that my dismissing this penalty is only proper in the 

sense." 

The bench decision is hereby affirmed. 

1790 
It is hereby Ordered that as set forth herein, the bench decision 

granting Respondent's motion to dismiss Docket Number NORT 78-395-P is 

affirmed and Citation Control Number 44-04251-02011 I is vacated. 

Admini'.itrative Law Judge 

Distribution: 

Michael C. Bolden, Esq., Office of the Solicitor, United States Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, Virginia 22203 

Gary W. Callahan, Esq., Clinchfield Coal Company, Lebanon, Virginia 24266 

1791 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

-OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MISSOURI GRAVEL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703j 756-6210/11112 

8 JUL 19BO 

Civil Penalty Proceeding 

Docket No. LAKE 80-83-M 

A.O. No. 11-01176-05002 

Barry Plant No. 8 Dredge Mill 

DECISION AND ORDER 

Respondent having failed to contest my tentative finding t~at there 

is no genuine dispute as to any of the facts material to the five failure 

to guard violations cited, 30 C.F.R. 56.14-1, I conclude an evidentiary 

hearing is unnecessary to resolve the matters in contest. 

As Professor Gellhorn has noted: 

A hearing to take evidence as is done in a trial at law 

is an obviously silly waste of time if facts are not in 

dispute • • • The courts ••• enter summary judgments 

when the factual allegations of a party have not been 

materially controverted by his opponent. Trial hearings 

may permissibly be omitted in administrative proceedings at 

least as readily as in their judicial counterparts, -when the 

only things to be determined are the legal consequences of 

uncontested facts. See. e.g., Weinberger v. Hynson, Westcott & 

Dunning, Inc., 412 U.S. 609 (1973); Baxter v. Davis, 450 

F.2d 459 (1st Cir. 1971), cert. denied 405 U.S. 999 (1972); 

Citizens for Allegan County;:fnc. v. Federal Power Commission, 

414 F.2d 1125 (D.C. Cir. 1969); Compare Fuentes v. Shevin, 

407 U.S. 67, 87 (1972); Kirby v. Shaw, 358 F.2d 446 (9th Cir. 

1966). 

In Recommendation No. 20, the Administrative Conference of the 

United States proposed that "each agency having a substantial 

caseload of formal adjudications • • • adopt procedures providing 

for summary judgment or decision" in order to avoid delays in 

1792 
the administrative process "by eliminating unnecessary evidentiary 

hearings where ·-no genui-ne--issue of material facts exists." 

1 Recommendations and Reports of the Administrative Conference 

of the United States 36 (1968-1970). For discussion consult 

E. Gellhorn and w.· F. Robinson, Jr., Summary Judgment in 

Administrative Adjudication, 84 Harv. L. Rev. 612 (1971). The 

authors state at pages 616-617: 'Just as summary judgment is not 

in conflict with the right to trial by jury because.it is available 

only when there is nothing for the jury to decide, (No one is 

entitled in a civil case to trial by jury unless and except so 

far as there are is·sues of fact to be determined. Ex parte 

Peterson, 253 U.S. 300, 310 (1920) (Brandeis, J)), a rule allowing 

summary decision in administrative adjudications would not 

improperly deny the right to a hearing since it would 

allow the hearing examiner or agency to dispense with an evidentiary 

hearing only if the absence of hearing could not affect the decision." 

Gellhorn and Byse, Cases and Materials on Administrative Law (6th Ed.) 

at 584. 

Apparently accepting this, petitioner claims only that the physical 

conditions described in its pretrial submissions, including the detailed 

sketches and photographs of the areas involved, establish "as a matter 

of law" that the violations charged occurred, even though the exposure 

to injury was "sporadic and infrequent." It is claimed that any 

conceivable exposure is per se a violation of the standard. I do not 

agree. My assessment of the undisputed physical facts is that each of 

the five conditions cited is by reason of its physical location and/or 

existing guarding incapable of causing injury to any employee acting in a 

normally prudent manner. In other words, I conclude the undisputed facts 

show each of the locations cited is so inaccessible it is highly 

improbable that in the course of his work duties any normally prudent 

employee is likely to come into contact with these moving machinery parts. 

See, Massey Sand and Rock Co., .DENV 78-567-PM, 1 FMSHRC 545, 556 (June 18, 1979) 

petition for discretionary review denied (July 27, 1979); Central Pre-Mix 

Concrete Co., DENV 79-220-PM, 1 FMSHRC 1424, 1430-1431 (September 26, 1979); 

FMC Corporation, WEST 79-168-M, 2 FMSHRC ~~' (June 3, 1980) (Slip Op. at 6). 

As my tentative decision indicates, I do not construe the standard to 

require guarding against all possible contingencies, including acts of 

thoughtlessness and foolhardiness. 

Accordingly, it is ORDERED that the tentative decision of May 21, 1980, 

as supplemented herein, be, and hereby is, ADOPTED AND CONFIRMED as the 

final decision in this matter and the captioned proposal for penalty be, 

and hereby is, DISMISSED. 

1793 
Distribution: 

Miguel Carmona, Esq., U.S. Department of Labor, Office of the Solicitor, 

230 South Dearborn St_. , Chicago, IL 60604 (Certified Mail) 

Stephen A. Gorman, Esq., Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd. 

8500 S. Sears Tower, 2300 S. Wacker Dr., Chicago, IL 60606 (Certified 

Mail) 

- ---· 

1794 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

-OFFiCE-OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL C01:1PANY, 

Respondent 

(703) 756-6210/11 /12 

1 1 JUL 1980 

Civil Penalty Proceeding 

Docket No. LAKE 80-77 

A.O. No. 11-00598-03036 V 

Eagle No. 2 Mine 

DECISION AND ORDER 

By its decision of May 16, 1980, the Commission vacated 

the trial judge's interlocutory decision of March 5, 1980, 

proposing assessment of a penalty of $1000 in settlement of 

this matter. The ground for the Commission's action was 

its finding that there was a dispute as to (1) whether the 

condition cited, namely an accumulation of loose coal and 

coal dust that ranged in depth from 4 to 20 inches and extended 

for a distance of 900 feet along the east side of the 3 South 

conveyor belt, was as a matter of law, an "accumulation" 

within the meaning of the Commission's decision in Old Ben 

Coal Co., VINC 74-11, 1 FMSHRC 1954 (December 12, 1979); and 

(2) the failure of the judge to afford Peabody the opportunity 

to "admit or deny" that "the depths of the spillage were 

those alleged in the withdrawal order." Peabody Coal Co., 

LAKE 80-25 et al., 2 FMSHRC 1035, 1036 (May 16, 1980). 

Ignoring the fact that the first groupd for its position 

presented only a question of law disposed of by its holding 

in Old Ben, namely that a spillage of loose coal and coal dust 

ranging in depth from 2 to 14 inches for a distance of 925 feet 

was, as a matter of law, an accumulation prohibited by 30 

C.F.R. 75.400, and second that neither in its answer nor 

in its response to the trial judge's pretrial order had 

Peabody ever suggested that one of its grounds for contest 

was the depth of the accumulation charged in the withdrawal 

order, the Commission remanded the matter for a full scale 

evidentiary hearing on the issue of the "depth of the spillage." 

2 FMSHRC at 1037. 

1795 
In due course, the matter came on for an evidentiary 

hearing on June 24 and 25 in the U.S. Courthouse in Washington, D.C. 

As the record o'f- that-hearing shows, there was, in fact, no 

genuine dispute regarding the depth of the spillage observed 

and measured.by the Inspector who issued the withdrawal 

order on May 3, 1979. l/ It was also shown that the operator's 

claim that the condition was not, as a matter of law, an 

accumulation within the meanin? of the standard had been 

laid to rest by the Conunission s decision of June 12, 1980 

in C.C.C. Pompe~ Coal Co., PIKE 79-125-P, 2 FMSHRC , which merely reiterated its interpretation of the standard 

as set forth in December, 1979, in Old Ben. 

Despite this, and over the objection of counsel for the 

Secretary that a full scale evidentiary hearing on the question 

of liability would be a "frivolous" waste of time, the trial 

judge deferred to the Conunission's view that "unless a case 

is settled or the respondent defaults, an administrative law 

judge must afford the parties an opportunity for a [testamentary] 

hearing" with respect to any issue of fact material to proof 

of the violation not expressly "admitted" by th~- _operator. 

2 FMSHRC at 1036. While this is obviously an incorrect standard 

for determining when an evidentiary hearing must be held, the 

Conunission and its staff, abetted by the Department of Labor, 

has long encouraged the view that regardless of the amount 

of the penalty, the expense to the parties involved, or the 

nonexistance of a genuine dispute over material adjudicative 

facts, the parties, or either of them, are entitled to demand 

as a matter of right a full blown trial-type hearing. ~/ 

The view that a general denial like a plea of "Not Guilty" 

·in a criminal case triggers an absolute requirement ·for a 

testamentary hearing absent settlement or default ignores 

the fact that neither the Mine Safety Law, the APA, the 

Constitution, nor the Conunission's own procedural rules 

1/ The record shows that after the Conunission's decision, 

Peabody felt compelled to make a pro forma challenge to the depth 

of the accumulation alleged but admitted it had no evidence 

to rebut the Inspector's measurements. 

2/ See Appendix. 

1796 
mandates such a result. 3/ Rule 28 of the Connnission's Rules 

of Practice re.quires -the-operator to include in its answer 

"a short and plain statement of the reasons why each of the 

violations cited ... is contested." Because the operator 

ignored this requirement, the pretrial order required: 

3/ The suggestion that a general denial in a civil penalty 

proceeding, like a plea of not guilty in a criminal case, 

triggers the protections and restrictions available in 

criminal prosecutions is wholly inapposite to complaints 

for enforcement of civil penalties. The Connnission's rules 

of practice clearly provide for pretrial discovery against 

an operator either at the instance of the solicitor or the 

trial judge. In addition, section 113(e) of the 1977 Mine 

Health and Safety Act empowers the law judge to "compel the 

attendance and testimony of witnesses and the production of 

books, papers, documents, or objects, and to order testimony 

to be taken." There is nothing in the Act or its legislative 

history to support the view that because Congress made the 

same conduct subject to both criminal and civil sanctions 

it intended to extend to the assessment of civil penalties 

the procedural protections and restrictions available in 

criminal prosecutions under the Fourth, Fifth and Sixth 

Amendments. United States v. Ward, U.S. , No. 74-394, 

slip op., pp. 5-8, (June 27, 1'9"BTI). ~protection against 

compulsory self-incrimination, of course, does not extend 

to corporations and there is, therefore, no reason why such 

respondents may not be compelled to produce for use in civil 

penalty cases documentary and/or testamentary evidence as 

to their compliance or noncompliance with the mandatory health 

and safety standards. Furthermore, in Ward, sutra, the 

Supreme Court held that even an individUarmaye compelled 

to report a water pollution violation to support a civil 

penalty assessment where the statute grants him use immunity 

for such report. Finally, in Ward the Court cited with 

approval its earlier holding tnatin the absence-of a 

genuine dispute as to the material facts the granting of a 

directed verdict or summary judgment is wholly proper in 

a proceeding to enforce a civil penalty. Hepner v. United 

?tates, 213 U.S. 103, 112 (1909). 

1797 
A plain and concise statement by the operator 

in accordance with 29 CFR 2700.28 of the reasons 

it conte-s-ts-eaCh-violation and/or the amount of 

the penalty. This must include a detailed statement 

of the specific facts, conditions and practices 

and theories of law upon which the contest of 

each violation and/or penalty is based. 

In response, the operator stated: 

1. Respondent will present evidence at the hearing 

that will show that the condition or practice cited in 

the Order of Withdrawal occurred sometime shortly 

before the Order of Withdrawal was written. Specifically, 

the preshift examiner, Mr. Terry Gwaltney, will testify 

that he preshifted the area in question within a few 

hours of the issuance of the Order of Withdrawal and 

that he found no accumulation or spillage at 

that time. Consequently it is respondent's 

contention that what was found by the inspector 

must have been a spill that occurred sqmetinie 

immediately prior to his issuing the Order of Withdrawal . . . Consequently, it will be Respondent's 

contention that a spillage, the type of which the 

Commission alluded to in Secretary of Labor, Old 

Ben Coal Company, December 1979, Vol. I, No. 9, 

1954, as being " ... inevitable in mining 

operations", occurred sometime just prior to 

issuance of the Order of Withdrawal and, therefore,. 

did not constitute an accumulation under the criteria 

set forth in 30 C.F.R. 75.400. ID at 1958. 

2. The payment of a maximum penalty for this violation 

will not impair Respondent's ability to continue in 

business. 

The trial judge submits that any fair reading of this response 

shows the operator was not contes.ting the extent or depth of 

the spillage alleged but only whether, as a matter of law, it 

constituted an accumulation prohibited by 30 C.F.R. 75.400. 

In the absence of a showing that a genuine dispute 

as to a material adjudicative fact exists, neither 

constitutional nor administrative due process requires a 

contested enforcement proceeding be resolved only after the 

parties are afforded a trial-type hearing. It simply is not 

true that valid adjudicative actions can be taken only after 

providing an opportunity to cross-examine witnesses. As the 

Supreme Court has noted: "No one is entitled in a civil case 

1798 
to trial by jury unless and except so far as there are issues 

of fact to be de_teJ;.minecL-" Matter Of Walter Peterson, 253 

U.S. 300, 310 (1920) (Brandeis, J). 

Due process, therefore, never requires a trial on nonfactual issues, such as whether a particular spillage, the 

extent and depth of which is not in dispute, constitutes as 

a matter of law an accumulation within the meaning of 30 C.F.R. 

75.400. What is needed on such issues is argument, written 

or oral, not evidence, and certainly not a trial-type hearing. 

Davis, Administrative Law Treatise§ 10.9 (2nd Ed. 1979). 

The law clearly is, at a most elementary level, that 

because a trial is a process for taking evidence, subject 

to cross examination, and because taking evidence in a trialtype hearing is a waste of scarce and expensive resources 

except where needed to resolve genuine issues of material fact ~/ 

it should be used sparingly and solely for the purpose of 

resolving such disputes, and never as a matter of right for 

the resolution of issues of law, policy or discretion. ~/ 

4/ As the record shows, counsel for respondent recently 

estimated that the cost to P.eabody of an evidentiary hearing is 

$1500. When a like amount is added for the cost to the 

Department of Labor and the Commission it is apparent that 

the cost of unnecessary evidentiary hearings can become 

very large. As Judge Irving R. Kaufman of the U.S. Court 

of Appeals for the Second Circuit recently stated, "the 

judicial system is the most expensive machine ever invented 

for finding out what happened and what to do about it." 

Time Magazine, May 5, 1980. While financial cost alone is 

not of controlling weight in determining whether due process 

requires a particular procedural safeguard prior to an 

administrative decision, the public interest in conserving 

scarce fiscal and administrative resources is a factor that 

must be weighed. Matthews v. Eldridge, 424 U.S. 3l0, 348 (1976). 

~/ In Co-0~ MininB Company, DENV 75-207-P, 2 FMSHRC 784, 

785 (Aprill, 198 ), the Commission emphasized the predictive, 

discretionary nature of a judge's determination of the amount 

of the penalty warranted. See also, Peabody Coal Company, 

BARB 76-117, July 1, 1980, 2 FMSHRC . This is in 

accord with the traditional view thattne assessment of a 

penalty is an "exercise of a discretionary grant of power" 

not a finding of fact. Brennan v. OSHRC, 487 F.2d 438, 442 

(8th Cir. 1973); Diver, The Assessment and Mitigation of 

Civil Mone Penalties b Federal Administrative A encies, 

7 : Colum ia Law Review 7 Decem er 7 T us, 

(continued on next page) 

1799 

•'.: 
Neither constitutional nor administrative due process 

mandate a conf:t:._ont;a_tional hearing before a penalty may 

be assessed. Section 7(c) of the APA, 5 U.S.C. § 556(d), 

requires confrontational hearings only to the extent that 

"cross-examination may be required for a full and true 

disclosure of the facts." If there is no dispute of 

fact or issue of credibility, there is obviously no need 

for a full scale trial-type hearing. 6/ In addition, 

section 7(c) further provides that "In ... determining 

claims for money . . . an agency may . . . , when a party will 

not be prejudiced thereby, adopt procedures for the submission 

of all or part of the evidence in written form." Frozen Foods 

Express, Inc. v. United States, 346 F.Supp.· 254, 260-261. 

(W.D. Tex. 1972) (no absolute right to an oral hearing under 

section 7(c)). Whether cross-examination is required in an 

administrative hearing depends on the circumstances presented 

in each individual case and initially rests in the sound 

discretion of the trial judge. Attorney General's Manual 

on the Administrative Procedure Act, p. 78 (1947); Loesch v. 

F.T.C., 257 F.2d 882, 885 (4th Cir.), cert. denied. 358 

U.S. 883 (1958); Delaware River Port Authority··v. Tiemann, 

403 F.Supp. 1117, 1142 (D.N.J. 1975). 

As the Second Circuit recently held, a judgment on the 

merits does not require a determination of the controversy 

after a full-scale trial-type hearing: 

(Footnote 5 cont.) 

where there is no dispute about the fact of violation or the 

six statutory criteria relevant to the determination of a 

penalty the Commission should not compel a full-blown 

evidentiary hearing solely on the issue of the amount of the 

penalty. The amount assessed is, of course, subject to 

review on appeal on a claim of inadequacy or excessiveness. 

Compare, Knox County Stone Company, DENV 79-359-PM (July 23, 1979) .·. appeal pending. 

~/ In a variety of situations where due process requirements 

are involved, something less than an evidentiary hearing 

can satisfy the right to be heard. Matthews v. Eldridge, 

supra, 424 U.S. at 343. 

1800 
The proverbial "right to a day in court" does not 

mean the actual presentation of the case in the context of a-forma.r, -evidentiary hearing, but rather 

the right to be duly cited to appear and to be 

afforded the opportunity to be heard. 

Mitchell v. National Broadcasting Co., 553 F.2d 265, 271 (2d 

Cir. 1977). 

As Professor Gellhorn has noted: 

A hearing to take evidence as is done in a trial at law 

is an obviously silly waste of time if facts are not 

in dispute. The courts, in their own proceedings, rule 

on motions to dismiss (or whatever may be the local 

equivalent of a demurrer); when they do so they assume 

a set of facts, without receiving and passing upon 

evidence, and then decide whether the assumed facts add 

up to something or to nothing. The courts also enter 

sunnnary judgments when the factual allegations of a 

party have not been materially controverted by his 

opponent. Trial hearings may permissibly be omitted 

in administrative proceedings at least as readily as 

in their judicial counterparts, when the only things 

to be deterinined are the legal consequences of 

uncontested ·facts. See, e.g., Weinber5er v. Hrnson, 

Westcott and Dunnin~, Inc., 412 U.S. 6 9 (1973 ; 

Baxter v. Davis, 45 F.2d 459 (1st Cir. 1971), cert. 

denied 405 U.S. 999 (1972); Citizens for Alle~an.-GOunty, 

Inc. v. Federal Power Commission, 414 F.2d ll 5 (D.C. ~ 1969); Compare, Fuentes v. Shevin, 407 U.S. 67, 

87 (1972); Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966). 

In Recommendation No. 20, the Adminis·trative Conference 

of the United States proposed that "each agency having 

a substantial caseload of formal adjudications . . . adopt procedures providing for summary judgment or 

decision" in order to avoid delays in the administrative 

process ''by eliminating unnecessary evident:Lary 

hearings where no genuine issue of material fact exists." 

1 Recommendations and Reports of the Administrative 

Conference of the United States 36 (1968-1970). For 

discussion, consult E. Gellhorn and W. F. Robinson, Jr., 

Summary Judgment in Administrative Adjudication, 84 

Harv. L. Rev. 612 (1971). The authors state at pages 

616-617: "Just as sunnnary judgment is not in conflict 

with the right to trial by jury because it is available 

only when there is nothing for the jury to decide, 

a rule allowing summary decision in administrative 

1801 
adjudications would not improperly deny the right to 

a hearing since it would allow the [law judge] or 

agency to--di-spens-e-with an evidentiary hearing only if 

the absence of a hearing could not affect the decision." 

Gellhorn and Byse, Administrative Law, Cases and Comments, 

(6th ed.) at 584 (1974). 

As the record shows, the penalty initially proposed for 

this violation was $2000, reduced after conference, and after 

consideration of the claim that the accumulation had existed 

for only 2 to 6 hours, rather than 24 hours, to $1000. After 

contest and compliance with Part A of the pretrial order, 

regional counsel for the Secretary proposed a further reduction 

to $550, again on the ground that the accumulation had existed 

for only 2 to 6 hours as shown by the operator's preshift 

and on-shift reports. Noting that this claimed factor in 

mitigation had already been taken into account by the 

assessment conference officer, the trial judge denied the 

proposal to settle the matter for $550 on the ground that the 

assessment had already been appropriately discounted by the 

assessment office, and that no new facts were asserted that 

would warrant a further reduction. For this reason, the 

trial judge proposed an assessment of $1000 in settlement 

and thereafter denied the operator's request for reconsideration. ?_/ 

In frustration over its inability to bargain the penalty 

away, the operator appealed to the Commission demanding 

acceptance of the $550 settlement. Granting an interlocutory 

appeal after the trial judge had set the matter for. a hearing 

limited to the amount of the penalty warranted -- the only 

matter that was ever in genuine dispute -- the Commission, 

without the benefit of briefs and after the operator had 

moved to withdraw its appeal, decreed the need for a full 

?_/ The power to "assess" penalties (section 110-(i)) when 

coupled with the power to "approve" compromises, mitigations, 

and settlements (section llO(k)) necessarily includes the 

power to propose an increase or reduction in the penalties 

based on an independent evaluation of the circumstances. 

See, 31 U.S.C. §§ 951-953; Divers, The Assessment and Mitigation 

of Civil Money Penalties, supra, note 5, at .1444. This is 

a discretionary function not reviewable as a finding of 

fact, but only for an abuse of discretion. Co-Op Mining, 

supra; OSHRC v. Brennan, (¥~46; Ame~ican Power Company v. 

S.E.C., 329 U.S. 90, 112 ); Butz v. Grover Livestock 

Company, 411 U.S. 182, 185 (1973)-. -

1802 
scale evidentiary hearing to resolve a fact that was never 

in dispute, namely--the -d~pth of the alleged accumulation. 8/ 

Congress long .ago warned against the inefficiency, 

confusion, and uncertainty that results to the administrative 

process·when the members of an agency rely on faulty staff 

analysis in an effort to control the day-to-day conduct of 

adjudicatory proceedings. The use of piecemeal interlocutory 

appeals to attempt to control the conduct of trial proceedings 

is, experience has shown, counterproductive to the just, speedy 

and inexpensive disposition of enforcement proceedings. 

This was certainly the case in this instance. For, as 

the record shows, after a full day spent taking evidence from 

the Inspector, the preshift examiner, and the operator's 

safety director, the matter originally offered and accepted 

in mitigation of the penalty for the purposes of a prehearing 

settlement of $1000 became largely irrelevant. And it 

became irrelevant because the testimony of the operator's 

preshift examiner disclosed and emphasized oth~r violations 

which existed contemporaneously with the overlooked accumulation 

and which indicated that the condition was significantly 

more serious than originally disclosed. These disclosures 

clearly made a penalty of $1000 inappropriate, whether or 

not the abatement shown on the preshift and on-shift reports 

for May 2 were correct. With the matter in this posture, and 

in the interest of cutting the loss to effective and efficient 

enforcement already experienced, the trial judge suggested a 

settlement conference. 

~/ The Collllllission's uncritical acceptance of the general 

counsel's apocryphal finding of a triable issue of fact to 

justify a remand for trial or acceptance of the parties' 

settlement proposal was a questionable usurpation of the tria~ ju~ge's authority to regulate.the course of the proceeding. 

A trial JUd~e should not on the basis of a premature, sua 

S£onte, preJudgment of the merits by the Collllllission be--raced 

with the Robson's choice of approving an improvident 

settlement or facing an unnecessary, burdensome or oppressive 

requirement for an evidentiary hearing. If on the other hand 

the Collllllission wished to approve the partie~' proposed 75% ' reductio~ in the penalty it obviously had the authority to 

do so, without the concurrence of the trial judge. A proper res~ect for the trial judge's decisonmaking autonomy militates 

against the adoption of procedural devices designed to 

undermine or intrude on that autonomy. 

1803 
At that conference the trial judge expressed the view 

that the undisputed facts as to the spillage observed on 

May 3, 1980, warrantetl-a- finding that under the attendant 

circumstances the accumulation violation charged was serious 

and the result of a high degree of ordinary negligence. He 

further expressed the view that he could not approve a settlement 

in an amount less than $2,500. After conferring with their 

principals, the parties agreed to a settlement at the figure 

proposed. The subsequent motion to approve settlement made 

on the record in open court on June 25, 1980, was approved 

from the bench. 

Accordingly, it is ORDERED that the bench decision and 

order approving settlement in this matter be, and hereby is, 

ADOPTED and CONFIRMED. It is FURTHER ORDERED that the operator 

pay the penalty agreed upon, $2,500, on or before Tuesday, 

July 15, 1980, and that subject to payment the captioned 

matter be, and hereby is, DISMIS 

Distribution: 

Thomas R. Gallagher, Esq., Peabody Coal Co., 301 N. Memorial 

Drive, P.O. Box 235, St. Louis, MO 63166 (Certified Mail) 

Edward. Fitch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Attachment: Appendix 

1804 
APPENDIX 

At the behest of the solicitor's appellate staff, the 

Commission has recently granted an ex parte review of a clearly 

provisional decision where the triar-judge proposed a penalty 

reduction of $24.00 or 20% in a total penalty of $144.00 

for each of three failure to provide safe access violations 

initially assessed at $48.00 each. The claim is that even 

where the record shows the operator admits liability and 

there is no dispute about the gravity, negligence or any 

other criteria, the trial judge is without power and authority 

to reduce a proposed penalty absent a full scale "on the record" 

trial-type hearing. And this despite the fact that the operator 

said he did not want a hearing, the solicitor never asked 

the trial judge for a hearing, and the operator because of 

the de minimis amounts involved cannot afford to attend a 

testamentary hearing. Interestingly enough, it is also claimed 

that because the decision was, despite its obviously provisional 

nature, "final" the judge "lacked jurisdiction to accord the 

parties" the opportunity for a settlement conference or 

evidentiary hearing if the proposed reduction was not acceptable. 

New Jersey Pulverizing Co., YORK 79-94-M, Direction for Review, 

dated June 25, 1980. 

The Commission did not afford the trial judge 

an opportunity to pass on these claims as required by section 

113(d)(2)(a)(iii) of the Act, nor did the Commission state 

in its Direction for Review the question of law, policy or 

discretion involved in its review as required by section 

113(d)(2)(B) of ·the Act. 

Had the trial judge been afforded the opportunity to be 

heard as contemplated by the Act he would have asserted the 

following. It is well. settled that section 7(c) of the APA, 

5 U.S.C. § 556(d) incorporated by reference in section 105(d) 

of the 1977 Mine Health and Safety Act, 30 U.S.C. § 815(d) 

permits "on the record" hearings where the partie~ involved 

file only written submissions, particularly where the trial 

judge's decision is provisional and affords the parties 

an opportunity to show the need for a testamentary hearing. 

Thus, wherever it appears that cross examination is not 

necessary to a "full and true disclosure of the facts" a 

case may properly be adjudicated without the waste of time 

and expense involved in setting, traveling and holding a 

hearing to take testimony that will add nothing to the record. 

Davis, Administrative Law Treatise, §§ 10:7, 12:1, 12:2 

(2d ed 1980). In fact, the last sentence of section 7(c), 

1805 
5 U.S.C. § 556(d), specifically provides that claims for 

money, which .civil. penalty cases clearly are, may be 

decided entirely on the basis of written submissions, unless 

a need is shown for a confrontational type hearing. See, 

FPC v. Texaco, 377 U.S. 33, 39 (1964); United States v. 

AITeyher:ra-Ludlum Steel Cor~., 406 U.S. 742 (1972); United.States 

v. F ori a E.C. R~. 410 U .. 224 (1973); Matthews v. Eldridge, 

424 U.S. 319 (197 ) ; Smith v. Organization of Foster Families·, 

431 U.S. 816 (1977); Dixon v. Love, 431 U.S. 105 (1977). 

Thus, where ·the amount in controversy is small, there 

are no issues of credibility or veracity critical to the. 

decisionmaking process, and there is a strong public interest 

in conserving fiscal and administrative resources, neither 

constitutional nor administrative due process requires an 

evidentiary hearing on small claims for money. ~riy 

Panthers v. Califano, 466 F.Supp. 1317 (D.D.C. 1 7 (no due 

process right to evidentiary hearing on claims of less than 

$100). 

In New Jersey Pulverizing, the provisiotial. decision 

was predicated on "the information submitted in the official 

file", i,e., the information presented by the parties. The 

proper procedure, therefore, was for the solicitor to appeal 

the correctness of the decision made or to show a need for 

a trial-type hearing to supplement the record. 

A former Assistant Attorney General, in commenting on the 

"acceptability" of cases decided on the basis of written, 

on the record, submissions noted that what the trial judge 

or the litigating public think is proper and acceptable 

procedure often runs contra to the self-interest of the 

lawyers: 

There is a tendency on the part of lawyers to 

think of acceptability in terms of traditional 

patterns of legal thinking. Since lawyers have 

valued and enjoy adversary proceedings, it is 

assumed that members of the public also feel 

the same way. This assumption, however, is 

questionable. The issue is one of acceptability 

of procedures to the persons affected and not to 

any group of professionals in the community . . . Just as war is too important to be left to the 

soldiers, justice is so important that it should 

not be left to the desires (and profits?) of lawyers 

Cramton, A Comment on Trial-Type Hearings, 58 Va. L. Rev. 

585, 593 (1972) (criteria for evaluating procedures). 

1806 
·As Chief Judge Irving Kaufman remarked, "our current 

emphasis on early judicial intervention is . . . the 

culmination oL_the. effG-rts of many of our greatest legal 

thinkers to induce the judges to . . . take an active part 

in the control of litigation . . . Contrary to what most of 

us have accepted as gospel, a purely adversarial system, 

uncontrolled by the judiciary, is not an automatic guarantee 

that justice will be done." The Philosophy of Effective 

Judicial Supervision over Litigation, 29 F.R.D. 207, 208, 

211 (1962). 

Finally, the·contention that the Connnission's procedures 

are not flexible enough to permit a judge to issue a tentative, 

provisional or interlocutory decision proposing an increase 

or decrease in the amount of a penalty proposed by the parties 

is without merit. The Connnission has held that for good cause 

shown the time for filing a petition for discretionary review 

may be extended and such an extension would obviously extend 

the time for finality even assuming finality could ever attach 

to a tentative, provisional or interlocutory decision. See, 

Victor McCol v. Crescent Coal Co., PIKE 77-71, __ -Iμne 23, 1980; 

Sunbeam Coa Company, 2 FMSHRC 775 (1980). · 

The above was written before receipt of the Connnission's 

decision of July 2, 1980 in New Jersey Pulverizing. Instead 

of dismissing the appeal as frivolous, the Connnission brushed 

aside the Department of Labor's, fustian demand for a full 

scale trial-type hearing but vacated the trial judge's decision 

of May 16, 1980 on the ground that the claimed reservation 

of a "right to reconsider" rendered the decision ultra vires 

the decisionmaking powers conferred by the Connnission's 

"rules and precedents." I have no difficulty with this in 

the context in which the rule speaks, namely, a "final 

disposition" but I believe its application to a decision 

proposing a settlement conflicts with the power and authority 

granted the trial judge under sections S(b) and 7(b)(6) of 

the APA, 5 U.S.C. §§ 554(c), 556(c). These provisions when 

read together clearly confer discretion o~ the trial judge 

to afford the parties an opportunity to settle before setting 

a hearing and to advise the parties of the terms and conditions 

upon which such a settlement may be approved. This authority 

is reinforced by the provisions of section llO(i) and (k) of 

the 1977 Mine Health and Safety Act and its legislative history. 

The trial judge has repeatedly suggested that under its de novo 

authority to "assess" penalties and to "approve" proposaIS -- to "compromise, mitigate, or settle" penalties, the Commission 

encourage the use of informal pretrial procedures to effect 

just, speedy and inexpensive dispositions of cases or violations 

where the amounts involved do not warrant the convening of 

a trial-type hearing or there is no genuine dispute of material 

adjudicative fact. 

1807 
Ignoring the fact that the trial judge's provisional 

decision cle~r.ly __ af£o_r_ded the parties an opportunity to 

propose a settlement, the CoIIllllission noting the operator's 

plaintive plea to be relieved of this administrative whirlwind 

adopted that procedure as its own invention and remanded 

the matter with directions to afford the parties "an 

opportunity to propose a settlement before any hearing is 

scheduled or prehearing order issued." So after making 

itself, the trial judge and the administrative process look 

ridiculous, the CoIIllllission has arrived at the same coIIllllon 

sense procedure for the resolution of these de minimis 

violations as was proposed in the judge's deCTs1on and order 

of May 16, 1980. I think the lesson learned is that whenever 

the CoIIllllission tilts the scales of procedural fairness 

in favor of a powerful constitutency or political expediency, 

it risks doing itself and the cause of administrative 

justice a serious disservice. 

1808 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

t 1 JUL 1990 

DECISION 

Civil Penalty Proceeding 

Docket No. PENN 79-105 

A/O No. 36-00807-03023 

Renton Mine 

Introduction 

The above-captioned proceeding is a petition for the assessment of 

civil penalties filed by the Mine Safety and Health Administration 

(MSHA) against Consolidation Coal Company. Pursuant to a prehearing 

order issued December 27, 1979, the parties discussed the 12 alleged 

violations contained in the petition and reached a settlement as to 10 

of the 12 violations. The terms of this settlement were submitted in a 

Motion for Decision and Order Approving Settlement filed by the Secretary 

on February 4, 1980. With respect to the two remaining citations, the 

parties advised they would submit stipulations for the material facts 

involved and requested permission to file motions for sunnnary judgment 

and supporting briefs concerning these two citations. In an order 

issued March 14, 1980 this request was granted, and the parties subsequently filed the above-mentioned stipulations, motions and briefs. 

Citation Nos. 618573, 618578, 618579, 618643, 618645, 618646, 618648, 

618649, 618650, 618651. 

The Solicitor has filed a motion to approve settlements for these 

10 citations. 

In her motion, the Solicitor advises the following: 

1. The attorney for the Secretary and the respondent's 

attorney have discussed the alleged violations and the six statutory 

criteria stated in section 110 of the Federal Mine Safety and 

Health Act of 1977. 

2. Pursuant to those discussions, an agreed settlement 

has been reached between the parties in the amount of $1,635. The 

original assessment for the alleged violations was $2,300. 

3. A reduction from the original assessment is warranted 

for the following violations. 

1809 

,\-
_Citation No. 618573 was issued for a violation of 30 CFR 

75.703. The $195 penalty assessed for this violation should be 

reduced to $iOO;--The c1tation states that the energized bonder 

being used at the bottom landing was not provided with a grounding 

wire. However, further investigation has disclosed that the 

bonder was equipped with a grounder which was inadvertently torn 

off. This could not have been known to the operator. Therefore 

negligence is less than originally assessed. Also, it must be 

noted that the track itself gives grounding and that the ground 

power conductor was proper. Therefore, the probability of occurrence 

is minimal. It is also relevant that this is direct current and 

not alternating current. The probability of occurrence with a 

direct current is far lower than with an alternating current. 

Therefore, $100 is an appropriate assessment. 

Citation No. 618578 was issued for a violation of 30 CFR 

75.200. The citation states that the approved roof control plan 

was not being complied with in the designated and return escapeways 

for a total distance of 2,000 feet. Further investigation has 

disclosed that at least half of this area was not required to be 

center posted as stated in the citation. It was not-required to be 

center posted because it was driven in 1973, well before the roof 

control plan requiring center posting was instituted. Therefore, 

the operator's negligence is less than originally stated and a 

reduction from $295 to $145 is appropriate. 

Citation No. 618579 was issued for a violation of 30 CFR 

75.200 and appropriately assessed a penalty of $255. The approved 

roof control plan was not being complied with where partial pillaring 

was taking place. A cut of coal approximatly 20 feet long and 

11 feet wide was exposed and not roof bolted or barricaded as 

required. As stated in the inspector's statement, the condition 

should have been detected during a pre-shift examination. However, 

it is not likely that a person would be harmed by this failure to 

comply with the roof control plan as there was no means of access 

to the area which was blocked by the continuous miner. Therefore, 

the penalty as proposed is appropriate. 

Citation No. 618643 was issued for a violation of- 30 CFR 

75.200 and appropriately assessed a penalty of $305. The approved 

roof control plan was not being followed as bolts are required to 

be placed on 4 foot centers. In this case the distance between 

bolts ranged from 52 inches to 60 inches. Further investigation 

has disclosed that only three rows of the bolts were out of pattern 

and that the area has a good solid top. Therefore, the likelihood 

of an injury occurring is low. However, as the operator is obligated 

to comply with its roof control plan, a penalty of $305 is appropriate. 

Citation No. 618645 was issued for a violation of 30 CFR 

75.523-2. The $170 assessment for this violation should be reduced 

to $120. The deenergizing device on the shuttle car was inoperative. 

1810 
However, it was not within the operator's control to know of this 

violation. ·__someone-had tampered with the adjustments on the equipment and the equipment operator did not inform the operator. Also, 

although more pressure needed to be exerted than allowable, it was 

possible to deenergize the equipment in its condition at the time 

this citation was issued. Also, the probability of occurrence is 

lowered as the shuttle car was protected by a canopy. For these 

reasons, the penalty reduction is appropriate. 

Citation No. 618646 was issued for a violation of 30 CFR 

75.400. The $225 assessment for this violation should be reduced 

to $140. An accumulation of combustible material was found around 

the bottom landing of the Renton shaft for approximately 700 feet. 

This operator maintains a weekly clean-up program and a garbage can 

is provided by the operator. However, this accumulation existed at 

the lunch place. The operator has instructed the men to use the 

garbage can and to clean-up after themselves. This violation is 

not within the operator's exclusive control. It is confirmed that 

the operator maintains a clean-up plan at this area. For these 

reasons, the operator's negligence is very low and ~- $140 assessment is appropriate. 

Citation No. 618648 was issued for a violation of 30 CFR 

75.200. In the intake escapeway the operator failed to post 

100 feet according to the roof control plan. The operator did know 

of this violation. However, according to the roof control plan 

posts are supplementary support to be used only after bolts are 

installed. This area was bolted according to the plan. Also, the 

roof in this area was strong and there was no indication that there 

was weight on the cribs. Moreover, the entry was posted. [In a 

telephone conversation on June 26, 1980 the operator informed my 

law clerk that the ninth word in the second sentence in this 

paragraph should be "post" and not "bolt." The operator further 

agreed to pay the full assessment of $255 for this violation rather 

than the reduced amount the parties had agreed upon.] 

Citation No. 618649 was issued to the operator for a violation of 30 CFR 75.807. The $150 assessment for this-violation 

should be reduced to $100. In this case, a bare energized trolley 

wire was coming in contact with the high voltage cable on the main 

track haulage. However, the cable itself was wrapped and insulated. 

It was not within the operator's control that this condition 

occurred. One of the brackets holding up the cable broke causing 

the cable itself to slip and sag near the trolley wire. As the 

operator was not negligent and as the cable itself was wrapped, 

this penalty should be reduced to $100. This reflects accurately 

the lack of operator negligence as.well as the low probability of 

occurrence. 

Citation No. 618650 was issued for a violation of 30 CFR 

75.200. The approved roof control plan was not being complied with 

1811 

, .. ,-
as the pillar line was not fenced off or posted. The $240 assessment for this violation should be reduced to $160. Further investigation has discfosed that the posts had been set as required by 

the roof control plan. However, an unintentional roof fall knocked 

out the breaker posts. As the operator initially did comply with 

the roof control plan and had not yet reinspected this area, the 

penalty reduction appropriately reflects the operator's degree of 

negligence. Also, this occurred in a gob area where it was unlikely 

that men would be travelling. 

Citation No. 618651 was issued for a violation of 30 CFR 

75.400. The $210 assessment for this violation should be reduced 

to $110. An accumulation of fine dry coal, loose coal and float 

coal dust was present in the pillar section. The operator maintains 

a continuous clean-up plan. However, this violation occurred in an 

area where the ribs were frequently sloughing and it was very 

difficult for the operator to control the violation. Thus, the 

operator's negligence was very slight. It is documented that the 

operator cleans this area at approximately dinner time and at the 

end of the shift. This citation was issued at 11:15, just slightly 

before the dinner hour. For these reasons, the penalty reduction 

as proposed is appropriate. 

Each of the above penalty proposals takes into account all 

relevant statutory criteria. 

I accept the Solicitor's representations. Accordingly, I conclude 

the reconunended settlements are consistent with and will effectuate the 

purposes of the Act. The reconunended settlements are therefore, approved. 

Citation Nos. 618574 and 618644. 

In accordance with Commission Rule 64, 29 C.F.R. § 2700.64, each 

party has moved for sununary decision with respect to Citation Nos. 618574 

and 618644. !/ 

A. Citation 618574 

This citation alleges a violation of 30 C.F.R. § 75.1704 for the 

following condition: 

".!./ 29 C.F.R. § 2700.64 provides in part: 

"(a) Filing of motion for summary decision. At any time after 

conunencement of a proceeding and tefore the scheduling of a hearing on 

the merits, a party to the proceeding may move the judge to render 

smmary decision disposing of all or part of the proceeding. 

"(b) Grounds. A motion for summary decision shall be granted 

only if the entire record, including the pleadings, depositions, 

answers to interrogatories, admissions, and affidavits shows: (1) that 

there is no genuine issue as to any material fact; and (2) that the 

moving party is entitled to summary decision as a matter of law." 

1812 
The designated return escapeway in the 15 North Section 

ID /!015 had -two--roof-fails which were not maintained to insure 

passage at all times of any person including disabled persons. 

Both falls were inby #4617. Both falls did not provide the required 

width of six feet and both needed posts. 

30 C.F.R. 75.1704 provides as follows: 

Except as provided in § § 75.1705 and 75.1706, at least 

two separate and distinct travelable passageways which are maintained to insure.passage at all times of any person, including 

disabled persons, and which are to be designated as escapeways, at 

least one of which is ventilated with intake air, shall be provided 

from each working section continuous to the surf ace escape drift 

opening, or continuous to the escape shaft or slope facilities to 

the surface, as appropriate, and shall be maintained in safe 

condition and properly marked. Mine openings shall be adequately 

protected to prevent the entrance into the underground area of the 

mine of surface fires, fumes, smoke, and floodwater. Escape facilities approved by the Secretary or his authorized !'_epresentative, 

properly maintained and frequently tested, shall-be present at or 

in each escape shaft or slope to allow all persons, including 

disabled persons, to escape quickly to the surface in the event of 

an emergency. 

No factual dispute exists. The.parties have submitted signed 

stipulations as to all material facts. These stipulations set forth 

that: 

1. In the designated return escapeway in the 15 Section 

I.D. No. 015, two roof falls had occurred. 

2. Five posts were dislodged. 

3. The falls did not allow the required six feet of 

clearance. 

4. The roof in the return escapeway is solid sandrock 

and generally strong. 

5. The return escapeway was examined in compliance with 

30 C.F.R. 75.1704-2(c)(l) on April 17, 1979, and the condition 

described in the subject citation did not exist at that time. 

6. On April 20, 1979, an authorized representative observed 

the two roof falls in the designated escapeway and issued the 

subject citation. 

7. The roof falls occurred between the time of the last 

regular weekly escapeway inspection, i.e., April 17, 1979, and the 

date of the issuance of the citation;-that is April 20, 1979. 

1813 
8. The escapeway was not used between April 17, 1979, 

and April 20, 1979. -~ -· - --

9. The negligence of the operator is low, as the operator 

did comply with the weekly examination requirement of 30 C.F.R. 

75.1704-2(c)(l). 

10. Were the escapeway to be needed in the event of an 

emergency, the roof falls could have made passage extremely 

difficult. Due to the obstruction created by the roof falls, an 

existing injury could have been aggravated, causing a possible 

fatality. However, the operator did have its one other designated 

escapeway maintained in passable and good condition. Also, other 

entries, though not designated escapeways, were in passable condition. Therefore, it is improbable that such an incident would have 

occurred. 

The issue presented is whether there is a violation of 30 C.F.R. 

§ 75.1704 when the cited condition occurs between the time of the 

escapeway inspection conducted pursuant to 30 C.F.R. § 75.1704-2(c)(l) 

and the MSHA inspection. 

The mandatory standard is clear in requiring that at least two 

passageways maintained to insure passage at all times of any person be 

provided and maintained in a safe condition. "Maintain" is defined, 

inter alia, as "to keep in a certain condition or position, especially 

of efficiency, good repair, etc." Webster's New World Dictionary (1972 

edition). The regulation does not distinguish between conditions which 

occur due to unpredictable circumstances and those which are caused by 

the operator's lack of due diligence. Nor does the standard contain any 

reference to time. Accordingly, I conclude that the standard imposes an 

absolute duty upon the operator with respect to the condition of the 

passageways. Since passage admittedly was extremely difficult, a 

travelable passageway did not exist and the operator failed to meet the 

obligation imposed upon it. 

I am bound by the clear language of the regulation. The circumstances under which the failure to maintain the requisite ~assageways 

occurred, such as the recent roof falls, may be taken into account in 

determining the degree of negligence. The fact that the operator complied 

with the weekly examination requirement in 30 C.F.R. § 75.1704-2(c)(l) 

does not affect the issue of whether there is a violation of 75.1704. 

In light of the foregoing, I conclude that a violation of 30 C.F.R. 

§ 75.1704 occurred for which a civil penalty must be assessed. Pursuant 

to the stipulations set forth here.in, I find negligence was low. I also 

take note of representations that the violation was abated in good 

faith, the operator is large in size, has a history of previous violations, and that the imposition of a penalty will not affect the operator's 

ability to continue in business. 

1814 
A penalty of $180 is assessed. 

Citation No. 618644 

This citation alleges a violation of 30 C.F.R. § 75.303, for the 

following condition: 

At three high cavities along the Conveyor Belt in the 

16 South Section ID #019 there was no evidence or indication that 

a pre-shift examination was made prior to men entering the 16 South 

Section for work. There was no date, time or anybody's initials 

for the above date. This is a statutory provision that a pre-shift 

examination and also evidence of said examination shall be made 

3 hours preceeding the beginning of the shift. [Modified on May 3, 

1979 to read: At three high cavities along the conveyor belt in 

the 16 South Section ID No. 019 there was no evidence to indicate 

that an examination was made for 5/1/79 or 5/2/79 after the coal 

producing shift had begun. The evidence required is the date, time 

and initials of the person making the examination at all locations 

he examines. An examination on these cavities was niade by the 

safety director on 5/2/79 after it was pointed ouf to him by me 

that no dates were there for 5/1/79. This section produced coal on 

5/1/79.] 

30 C.F.R. 75.303 provides in relevant part as follows: 

(a) Within 3 hours immediately preceding the beginning of 

any shift, and before any miner in such shift enters the active 

workings of a coal mine, certified persons designated by the 

operator of the mine shall examine such workings and any other 

underground area of the mine designated by the Secretary or his 

authorized representative. Each such examiner shall examine every 

working section in such workings and shall make tests in each such 

working section for accumulations of methane with means approved by 

the Secretary for detecting methane, and shall make tests for 

oxygen deficiency with a permissible flame safety lamp or other 

means approved by the Secretary; examine seals and doors to determine whether they are functioning properly; examine and test the 

roof, face, and rib conditions in such working section; examine 

active roadways, travelways, and belt conveyors on which men are 

carried, approaches to abandoned areas, and accessible falls in 

such section for hazards; test by means of an anemometer or other 

device approved by the Secretary to determine whether the air in 

each split is traveling in its proper course and in normal volume 

and velocity; and examine for such other hazards and violations of 

the mandatory health or safety standards, as an authorized representative of the Secretary may from time to time require. Belt 

conveyors on which coal is carried shall be examined after each 

coal-producing shift has begun. Such mine examiner shall place his 

1815 
initials and the date and time at all places he examines. If such 

mine examJ~e~_f~nds_a condition which constitutes a violation of a 

mandatory health or safety standard or any condition which is 

hazardous to persons who may enter or be in such area, he shall 

indicate such hazardous place by posting a "danger" sign conspicuously at all points which persons entering such hazardous place 

would be required to pass, and shall notify the operator of the 

mine. 

* * * 

The parties have submitted stipulations with respect to the facts 

involved. These stipulations set forth that: 

1. On May 1, 1979, the Renton Mine was idle, therefore, 

no coal was produced. 

2. 30 C.F.R. § 75.303 provides: "belt conveyors on which 

coal is carried shall be examined after each coal-producing shift 

has begun. Such mine examiner shall place his initials and the 

date and time at all places he examines." 

3. As the mine was idle on May 1, 1979, it was not necessary 

for the operator to examine the belt on that day. 

4. On May 2, 1979, the operator was engaging in producing 

coal on the 8:00 a.m. shift and the conveyor belt in the 16 South 

Section, I.D. No. 019, was energized at the time of the inspection. 

5. The authorized representative issued the subject citation 

at 11:30 a.m. 

6. At the time the inspector issued the citation there was 

no evidence to indicate that an examination was made for May 2, 

1979, after the coal-producing shift had begun. 

7. The operator did intend to make a belt examination on 

May 2, 1979, sometime during the shift in which the citation 

was issued. 

8. At the time the citation was issued, the belt was in 

good condition and no hazards existed. 

9. The probability of occurrence is low, as the belt was 

in good condition. 

10. The operator exercised normal good faith in abating 

this condition within the time set for abatement or a reasonable 

time thereafter. 

1816 
The issue presented for resolution in this matter is whether 

30 C.F.R. § 75.303--_requires--Sn examination of belt conveyors which carry 

coal to be conducted itmnediately after each coal-producing shift has 

begun or at any time during such coal-producing shift. 

I conclude that the mandatory standard requires only that belt 

conveyors on which coal is carried be examined after each coal-producing 

shift has begun. There is no requirement of itmnediate examination of 

belt conveyors after the start of a production shift. Indeed, there is 

no time requirement at all except that the examination occur during the 

shift. If the Secretary wished to require an itmnediate inspection of 

such conveyors or an inspection within a specified time after the start 

of the shift, the regulation could have so provided. As I have stated 

before, I have neither the authority nor the inclination to substitute 

myself for the formal rulemaking procedures set forth in the Act. See, 

~'Riverside Cement Company, WEST 79-94-M et al, (December 18, 1979). 

The Solicitor cites the inspector's manual which provides that 

these examinations shall be started without delay. I do not know what 

"without delay" means. The operator cites an earlier memorandum issued 

by a Subdistrict Manager which states that the examination can be done 

at any time during the shift. I am not bound by either interpretation, 

which are not official regulations but I do note that the former Board 

of Mine Operations Appeals held that the operator cannot properly be 

held to comply with guidelines or amplifications of the Act not properly 

promulgated as regulations issued pursuant thereto. Kaiser Steel Corporation, 

3 IBMA 489 (1974). Here the language of the mandatory standard is clear. 

If the Secretary wants to require something more or something different, 

he must amend the regulations in the proper manner. 

For these reasons, I find no violation existed and the citation 

must be vacated. 

ORDER 

The operator is ORDERED to pay $1,870 within 30 days from the date 

of this decision. 

Citation No. 618644 is hereby VACATED. 

__:=-_pJ ~ Paul Merlin 

Assistant Chief Administrative Law Judge 

1817 
Distribution: 

-~ . - --

Barbara Kaufmann, Esq., Office of the Solicitor, U.S. Department of 

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

19104 (Certified Mail) 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

1818 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONALD H. McCRACKEN, 

v. 

·6FFICE' or ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 1 JUL 1980 

Complainant 

Complaint of Discharge, 

Discrimination or Interference 

Docket No. WEVA 79-116-D 

VALLEY CAMP COAL COMPANY; 

Respondent Valley Camp No. 1 Mine 

DECISION DENYING REQUEST 

FOR NEW HEARING 

On April 18, 1980, I issued a decision dismissing a Complaint of 

Discharge and Discrimination filed by Ronald McCracken finding insufficient 

evidence that his discharge was the result of any discrimination proscribed 

by the Federal Mine Safety and Health Act of 1977. McCracken subsequently 

filed a timely petition for discretionary review with the Federal Mine Safety 

and Health Review Commission claiming, inter alia, that newly discovered evidence warranted reopening of the case and further proceedings. On May 28, 

1980, the Commission remanded the case to me for a ruling on that specific 

claim. No hearing was held inasmuch as there is no genuine issue as. to any 

material fact. _!!.:.!:., v. Cheramie Bo-True No. 5, Inc., 538 F.2d 696 (1976), 

~· ~., 559 F.2d 1217; Independent Bankers Assoc. of Georgia v. Bd. of 

Governors or Federal Reserve Systems, 516 F.2d 1206, 170 U.S. App. D.C. 278 

(1975). All essential evidence is a matter of record in the form of transcripts and affidavits and the accuracy of those documents is not disputed. 

The issue here is the interpretation to be given that evidence. 

In the absence of specific provisions for consideration of newly discovered evidence in the Commission Rules of Procedure or in the Administrative Procedure Act, my consideration of the question presented will be 

governed by Rule 60(b)(2) of the Federal Rules of-Civil Procedure and as that 

rule has been judicially construed. Commission Rule 29 C.F.R. § 2700.l(b). 

In essence, Federal Rule 60(b)(2) provides that a party may be relieved from 

a final judgment, order or proceeding on the basis of newly discovered evidence. Such relief is considered extraordinary, however, and may be granted 

only where extraordinary circumstances are present. Posttape Associates v. 

Eastman Kodak Co., 387 F.Supp. 184, 68 F.R.D. 323 (E.D. Pa. 1975), rev 1d. on 

other grounds, 537 F.2d 751. Thus, a motion under Rule 60(b)(2) asserting 

newly discovered evidence as a basis for a new trial will not be granted 

unless (1) the evidence was discovered following the trial; (2) due diligence 

on the part of the movant to discover the new evidence is shown or may be 

inferred; (3) the evidence is not merely cumulative or impeaching; (4) the 

evidence is material, and (5) the evidence is such that a new trial would 

1819 
probably produce a new result. A. G. Pro, Inc. v. Sakraida, 512 F.2d 141 

(5th Cir. 1975); L_t;!det __ v .-United States, 297 F .2d 737 (5th Cir. 1966). These 

requirements must be strictly met. Strauss v. United States, 337 F.2d 853 

(5th Cir. 1964)~ 

McCracken has proffered as "newly discovered evidence" certain testimony 

from an unrelated proceeding given by Ronald Ernest, a foreman employed by 

the Valley Camp Coal Company (Valley Camp), which he claims "clearly demonstrates that witnesses of the Respondent testified falsely or incorrectly" at 

the hearing on the discrimination complaint previously before me. While 

McCracken does not, in his motion, make reference to the precise testimony of 

these witnesses that he claims to be false or incorrect, it appears that he 

is referring to the testimony of James Litman, then vice president for operations at Valley Camp. Although he also names John Gotses, then Valley Camp's 

industrial relations manager, as the other witness contradicted by Ernest, 

Gotses in fact did not testify as to the precise subject area now at issue. 

James Litman testified, in essence, that in order to enable a person 

unfamiliar with the hazards unique to underground coal mining to learn to 

work safely in that environment, it had been the company policy since at 

least 1974, that underground experience in areas where coal is being extracted 

was a prerequisite to immediate employment in such areas. He observed that 

such employees were first required to work with an experienced miner in the 

underground workings for 6 months as an apprentice or "red hat" to learn of 

the mine hazards. Litman testified that company requirements in this regard 

were even more stringent than those of the West Virginia Department of Mines. 

This testimony was relevant to the case in that it established one basis for 

showing that McCracken was not qualified, at the time of his layoff, for 

immediate alternative employment in the underground workings of the mine 

where coal is extracted. 

McCracken contends that the testimony of Ronald Ernest at a deposition 

on April 24, 1980, establishes, contrary to the testimony of Valley Camp's 

witnesses, that Valley Camp had in fact adopted the same requirements as the 

West Virginia Department of Mines in that any coal miner who was qualified 

and recognized by that department was thereby automatically eligible to work 

in all underground sections of the mine regardless of his previous experience. 

Although he submits four pages of transcript from the testi-mony of Ronald Ernest 

in support of his claim it is apparent that only the following passage is 

directly on point: 

Q. Does Valley Camp Coal Company have any requirements 

in addition to those of the State of West Virginia? 

A. We run them through an 80-hour course. 

Q. That is done during the--

A. Prior to this employment [as a trainee for the first 

90 days and as an apprentice "red hat" for the next 30 days]. 

1820 
Q. Allright, sir. Other than that requirement and the 

taking of the-tes-t-,:- are-there any additional requirements for 

qualification as an underground laborer? 

A. Not to my knowledge. 1J 

According to the uncontested affidavit submitted by Ernest he construed 

the last question in the above extract in the context of the requirements of 

the State of West Virginia and not the requirements of Valley Camp. I find 

this interpretation of the question to be reasonable and responsive in the 

context in which it was asked. His testimony is therefore wholly consistent 

with that of Litman and other witnesses at the hearing. Complainant's allegations are thus without basis in fact. The alleged newly discovered evidence is therefore merely cumulative in nature and as such cannot afford a 

basis for a new hearing. 2/ The evidence clearly is not of such a nature 

that would probably produce a new result after a new hearing. Sakraida, 

supra; Kolstad v. United States, 262 F.2d 839 (9th Cir. 1959); Philippine 

National~ v. Kennedy, 295 F.2d 544 (App. D.C. 1961). 

In connection with his various pleadings and letters filed in this case 

McCracken also cites other excerpts from Ernest's testimony as being "noteworthy" or "interesting". Although I do not consider these offhand comments 

to be a part of the motion filed herein I nevertheless have examined those 

excerpts in the context of that motion. I do not find that any of these 

references would afford any basis for relief under Rule 60(b)(2). 

Under the circumstances, McCracken does not meet the criteria necessary 

to succeed on a Rule 60(b)(2) motion asserting newly discovered evidence. I 

therefore conclude that his claim of "newly discovered evidence" does not 

warrant reopening of the record or further proceedi gs. His motion in that 

regard is therefore denied. 

1/ Transcript page 16 from the deposition 

Cherich v. The Valley Camp Coal Company, in t 

West Virginia, Civil Action No. 79-C-730TA. 

st in the case of 

ourt of Ohio County, 

2/ Since this evidence could hardly be considered as "hidden" at the time of 

the decision in this case it would, for this additional reason, not afford a 

basis for relief under Rule 60(b)(2). Ryan v. U.S. Lines Company, 303 F.2d 

430 (2nd Cir. 1962). 

1821 
Distribut~on: 

John w. Coop-er,---Esq;-,--Pinsky, Barnes, Watson, Wilmo & Hinerman, 800 Main 

Street, Wellsburg, WV 26070 (Certified Mail) 

Arthur M. Recht, Esq., Schrader, Stamp & Recht, 816 Central Union 

Building, Wheeling, WV 26003 (Certified Mail) 

Cynthia Attwood, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

1822 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(.703) 756-6230 

1 4 JUL 1980 

SECRETARY OF LABOR, . Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 80-41 

Petitioner A.C. No. 46-02380-03008 I 

v. Bishop Preparation Plant 

BISHOP COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

DavidE. Street, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA), under section llO(a) of the Federal · 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act), 

to assess a civil penalty against Bishop Coal Company (hereinafter Bishop) for 

a violation of mandatory safety standards. The proposal for assessment of 

a civil penalty alleges a violation of 30 C.F.R. §§ 77.1605(k) and 77.1605(1). 

A hearing was held in Charleston, West Virginia, on May 21, 1980. Franklin 

Walls testi~ied on behalf of MSHA. James Lawless and Jack Holt testified on 

behalf of Bishop. Upon completion of the taking of testimony, the parties 

submitted oral arguments. 

1823 
Thi~ matter involves the alleged failure of Bishop to provide berms or 

other guards at a-dumping location and on the outer bank of elevated roadways. The order on which the civil penalty is proposed was issued following 

an investigation of an accident at the Bishop Preparation Plant. The accident occurred when a truck, operated by an employee of an independent contractor, missed the ~amp to the dumping area while backing up and went down 

an embankment. 

ISSUES 

Whether Bishop violated the Act or regulations as charged by MSHA and, 

if so, the amount of the civil penalty which should be--assessed. 

APPLICABLE LAW 

Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempti~g to 

achieve rapid compliance after notification of a violation. 

30 C.F.R § 77.1605(k) provides as follows: "Berms or guards shall be 

provided on the outer bank of elevated roadways." 

30 C.F.R. § 77.1605(1) provides as follow: "Berms, bumper blocks, 

safety hooks, or similar means shall be provided to prevent overtravel and 

overturning at dumping locations." 

1824 
STIPULATIONS 

The parties stipulated the following: 

1. Bishop Preparation Plant is owned and operated by Respondent Bishop 

Coal Company. 

2. Bishop Preparation Plant is subject to the jurisdiction of the 

Federal Mine Safety an.d Health Act of 1977 as amended. 

3. The administrative law judge has jurisdiction over this proceeding, 

pursuant to section 110 of the 1977 Act. 

4. The subject order and termination thereof were properly served by 

a duly authorized representative of the Secretary of Labor upon an agent of 

Respondent at the dates, times and places stated therein and may be admitted 

into evidence for the purpose of establishing their issuance and not for the 

truthfulness or relevancy of any statement asserted therein. - __ .-

5. The assessment of civil penalties in this proceeaing will not affect 

the Respondent's ability to continue in business. 

6. The appropriateness of the penalty, if any, to the size of the coal 

operator's business should be determined based upon the fact that in 1979 the 

Bishop Preparation Plant processed an annual tonnage of 751,799 and the controlling company, Bishop Coal Company, had an annual tonnage in excess of 

approximately 751,799 tons. 

7. The alleged violation was abated in a timely fashion and the operator 

demonstrated good faith in attaining abatement. 

8. The gravity of the alleged violation was that an accident occurred. 

It affected one person and resulted in said person losing a work day. 

SUMMARY OF THE EVIDENCE 

During darkness on the midnight shift on February 28, 1979, a truck 

haulage accident occurred at the Bishop Preparation Plant. A coal haulage 

truck, weighing 40 to 50 tons, operated by an independent contractor was 

attempting to back onto the dumping ramp at the plant. This was only the 

truck driver's second trip to the site and he apparently was working his 

1825 
second consecutive shift at the time of the accident. The .driver misjudged 

the ramp and the right-·rear-wheels missed the ramp by several feet. This 

caused the haulage truck to go over the embankment which was approximately 

11 feet above the surface below. The driver jumped out of the truck prior 

to its fall and sustained an injury causing him to lose one day of work. 

MSHA assigned inspector Franklin Walls to investigate this accident. 

Upon completion of his investigation, Inspector Walls issued an imminent 

danger order of withdrawal under section 107(a) of the Act, due to inadequate berms or guards at the dumping site and along portions of the elevated 

access roadway leading to the dumping site. 

The facts concerning the physical condition of the dumping site at the 

time of the accident are in dispute. Although numerous photographs were 

received in evidence, they are subject to different interpretations in light 

of the extensive damage caused to the area by the falling truck. .Bishop 

alleged that prior to the accident, the following berms or guards were provided at the point where the truck went over the edge of the dumping area: 

a handrail type fence, a small pile of rocks and debris along the edge of 

the bank, and a metal pipe 8 inches in diameter. MSHA asserts that the 

8-inch metal pipe was not present at the time of the accident. Bishop concedes that the handrail was not intended to prevent trucks from going over 

the edge. 

According to the calculation of the parties, if the truck in question 

were perfectly centered on the ramp, there would be approximately 1-1/2 to 

2 feet of clearance on each side of the truck. Based upon the location of 

1826 
the right rear tire marks at the edge of the bank, the truck missed the 

ideal backup point-by-) or 4 feet. Both parties agreed that the truck 

driver was negligent. 

Bishop's superintendent, James Lawless, contended that the 8-inch pipe 

along the ramp and the part of the pipe that went around the corner where 

the right rear wheels of the truck went over the bank was in place at the 

time of the accident. He further alleged that the pipe was torn from the 

concrete and knocked down the bank in the accident. Inspector Walls disagreed and testified that the pipe was found lying at the bottom of the bank 

covered with float coal dust which indicated that the pipe had not been - ---

recently dislodged. 

There was some disagreement between Inspector Walls and Superintendent 

Lawless as to whether even the berm which was installed for abatement would 

be sufficient to prevent the occurrence of this accident. However, both 

agreed that under certain circumstances the berm would be sufficient. 

Bishop produced further evidence that since 1971 more than 100 trucks 

use this dumping ramp on each working shift. There had been no accidents or 

complaints concerning the berm or guard prior to the instant accident. 

Moreover, the access road and dumping location had been inspected numerous 

times by MSHA and its predecessor since 1971 with no prior complaints about 

the inadequacy of berms or guards. 

With regard to the access road, Inspector Walls identified four separate locations where berms were either inadequate or nonexistent. The total 

182·7 
length of the cited areas of the access road was several hundred feet. In 

these locations, the inspector testified that there was an embankment on one 

side and where berms existed they were very low and would not have been sufficient to prevent overtravel by haulage trucks. Superintendent Lawless testified that he had walked the access road with another MSHA inspector approximately 3 months prior.to the date of the instant order and that inspector 

said nothing about inadequate berms. He contended that the condition of the 

berms had remained essentially the same from the date of the prior inspection to the time of the accident. However, he conceded that the winter 

weather conditions and truck usage of the road may have lowered the berms 

. ~ -.. 

between the date of the prior inspection and the date of this order. 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of the parties have been considered. MSHA contends that Bishop failed to provide adequate berms or guards at the dumping site and along the access road. MSHA 

further asserts that Bishop is chargeable with a high degree of negligence 

or gross negligence and that a civil penalty in the amount of $4,000 should 

be assessed. Bishop asserts that it provided berms at all locations where 

they were required. Bishop also asserts that it was not negligent in any 

way and that a $4,000 civil penalty would be "absurd." 

Since MSHA's investigation was prompted by the truck accident at the 

dumping site, the evidence concerning the dumping site will be examined 

first. The regulation in question, 30 C.F.R. § 77.1605(1), provides as 

follows: "Berms, bumper blocks, safety hooks, or similar means shall be 

1828 
provided to prevent overtravel and overturning at dumping locations." I 

find that the preponderance of the evidence establishes that at the time of 

the accident in question, the means provided by Bishop to prevent overtravel 

and overturning were the following: a metal pipe 8 inches-in diameter and 

a small 'pile of rocks and debris. Although a small metal handrail was also 

present, this was not intended to prevent overtravel by trucks. I find that 

the physical evidence, particularly the photographs taken shortly after the 

accident, supports Bishop's contention that the 8-inch metal pipe was dislodged by the truck's fall. Nevertheless, I find that Bishop violated the 

regulation in question because the metal pipe and the small pile of rocks and 

debris were not sufficient "to prevent overtravel and overt~rning at dumping 

locations." While. the truck driver was admittedly negligent in misjudging 

the entrance to the dumping ramp by a few feet, this does not exculpate 

Bishop from liability. Although there is no evidence of any prior accident 

at this site, Bishop should have known that an 8-inch pipe and a small pile 

of debris were insufficient to prevent overtravel and overturning of trucks 

weighing 40 to 50 tons. However 1 I find no evidence in the record to support 

MSHA's contention that Bishop is chargeable with a high degree of negligence 

or gross negligence. For this violation, I find that Bishop is chargeable 

with ordinary negligence. 

The preponderance of the evidence establishes that Bishop failed to provide adequate berms or guards along the outer bank of parts of its access 

road to the preparation plant. Bishop's contention that the small piles of 

rocks or debris along the elevated roadway constituted a berm is rejected. 

The requirement of 30 C.F.R. § 77.1605(k) that berms or guards shall be 

1829 
provided means that they must be adequate to ~revent overtravel of the outer 

bank. The evidence establishes that Bishop violated this standard. Bishop's 

reliance upon the failure of MSHA inspectors to cite this condition during 

earlier inspections is misplaced. Even if the condition of the berms was the 

same as on the prior inspections, Bishop is on notice by the regulation that 

adequate berms or guards are required. Since Bishop should have known of 

this violation, I find it chargeable with ordinary negligence. 

In assessing a civil penalty, I have considered Stipulations 5 through 8 

and the fact that Bishop is chargeable with ordinary negligence in this case. 

Based upon the evidence of record and the criteria set __ fort-h in section llO(i) 

of the Act, I conclude that a civil penalty of $2,500 should be imposed for 

the violation found to have occurred. 

ORDER 

Therefore, it is ORDERED that Respondent pay the sum of $2,500 within 

30 days of the date of this decision, as a civil penalty for the violation 

of 30 C.F.R. §§ 77.1605(k) and 77.1605(1). 

Distribution by Certified Mail: 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 

1830 

... 
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. 

U. S. STEEL CORP., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

·1 6 JUL 1980 

Civil Penalty Proceedings 

Docket No. PITT 79-186-P 

A.O. No. 36-05018-02012 

Docket No. PITT 79-185-P 

A.O. No. 36-05018-03010 

Cumberland Mine 

DECISIONS APPROVING SETTLEMENTS 

These civil penalty proceedings were initiated by the petitioner 

against the respondent through the filing of proposals for assessment 

of civil penalties 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 seven alleged violations of certain mandatory safety 

standards promulgated pursuant to the Act. 

Respondent filed timely answers in the proceedings and the cases 

were consolidated for hearing in Pittsburgh, Pennsylvania, on March 19, 1980. 

Subsequently, by motion filed June 17, 1980, petitioner now seeks approval of 

a proposed settlement negotiated by the parties as follows. 

Docket No. PITT 79-186-P 

This docket concerns five citations which the parties propose to 

dispose of by settlement. The citations, initial assessments, and the 

proposed settlement amounts are as follows: 

Citation No. Date 30 CFR Standard Assessment Settlement 

235178 11/30/78 77. 701 $ 160.00 $ 160.00 

235179 11/20/78 77.506 90.00 90.00 

235180 11/27/78 77.902 160.00 160.00 

235621 11/30/78 77. 508 160.00 160.00 

235622 11/30/78 77 .506 78.00 78.00 

$ 688.00 $ 688.00 

1831 

·-
Discussion 

- . - --

The proposed settlement is for 100% of the initial proposed 

assessments made by. MSHA for the violations in question. In support of 

the proposed settlement, petitioner has submitted information pertaining 

to the six statutory factors set forth in section llO(i) of the Act. 

In addition, petitioner has submitted a full and complete discussion and 

analysis of the facts and circumstances surrounding each of the citations, 

including the factors of gravity, negligence, and good faith compliance. 

After review and consideration of the arguments presented in support 

of the proposed sett~ement, I find that it is reasonable and in the 

public interest, and that it should be approved. 

Order 

Pursuant to Commission Rule 30, 20 CFR 2700.30, petitioner's motion 

is granted, settlement is approved, and respondent is ordered to pay 

civil penalties in the amount of $688.00 in satisfaction of the aforesaid 

citations, payment to be made to MSHA within thirty (30) days of the date 

of this decision and order. Upon receipt of payment, this matter is 

dismissed. 

Docket No. PITT 79-185-P 

This docket concerns two citations, 7-0049, 12/13/77, 30 CFR 70.250(a), 

and 235657, 11/13/78, 30 CFR 77.1713(d), for which civil penalties of 

$72 and $66 were initially proposed by the petitioner. Petitioner's 

motion seeks approval of a settlement for citation 7-0049, for the full 

amount of the $72 assessment, and in support of its proposal petitioner 

has submitted a full and complete discussion of the facts and circumstances 

surrounding the citation, including information with respect to the six 

statutory factors found in section llO(i) of the Act. 

With regard to citation 235657, petitioner states that it has been 

vacated because no violation of the cited standard occurred, and no 

civil penalty should be assessed. 

Order 

Pursuant to Commission Rule 30, 29 CFR 2700.30, settlement is approved 

and respondent is ordered to pay a civil penalty in the amount of $72 in 

satisfaction of the citation in question, payment to be made to MSHA 

within thirty (30) days of the date of this decision and order. Upon 

receipt of payment, this matter is dismissed. The vacated citation is 

dismissed. 

• Koutras 

Judge 

183~ 
Distribution: 

Sidney Salkin, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant Street, Pittsburgh, 

PA 15230 (Certified Mail) 

1833 

l--
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2,. lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1' 8 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

MARTIN MARIETTA AGGREGATES, 

Respondent 

Docket No. CENT 79-171-M 

A.O. No. 23-00981-05002 

Gooden Quarry and Mill 

Docket No., CENT 79-108-M 

A.O. No. 13-00120-05002 

Klein Quarry 

DECISIONS 

Appearances: Rochelle G. Stern, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, for the 

petitioner; 

Charles A. Bliss, Cedar Rapids, Iowa, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 820(a), charging the respondent with two alleged violations of certain mandatory safety standards set forth in Part 56, Title 30, 

Code of Federal Regulations. Respondent filed timely answers contesting the 

citations and requested hearings. Hearings were held pursuant to notice on 

May 20, 1980, in Kansas City, Missouri, and the parties appeared and participated therein. The parties waived the filing of posthearing proposed findings, conclusions, and briefs and were given an opportunity to present oral 

arguments on the record with regard to their respective positions. Further, 

at the request of the parties, bench decisions were rendered and the decisions are herein reduced to writing as required by Commission Rule 65, 

29 C.F.R. § 2700.65(a). 

Issues 

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

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

1834 
and, if so, (2) the appropriate civil penalties that should be assessed 

against the respondent for the alleged violations based upon the criteria 

set forth in sectTon Tfo(i.)--of the Act. Additional issues raised by the 

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

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

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

was negligent, (4) the effect on the operator's ability to continue in business, ( 5) the gravity_ of the violation, and (6) the d·emonstrated 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, Pub. L. 95-164, 

30 u.s.c. § 801 ~ ~· 

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

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

Discussion 

Stipulations 

The following stipulations were agreed to by the parties in these 

dockets: 

1. Respondent's mining operations are subject to the provisions of the 

Act. 

2. Payment of the assessed civil penalties will not affect respondent's 

ability to continue in business. 

3. Respondent demonstrated good faith by achieving rapid compliance 

after notification of the cited violations. 

4. Respondent's size is 8,368,785 production tons or man-hours per 

year. 

5. Respondent's size with respect to the Klein Quarry is 19,049 production tons or man-hours per year. 

6. The gravity factor was properly assessed for the citations in 

question. 

1835 
Findings and Conclusions 

Independent ContF-acto-r--Defense 

In these dockets, respondent asserted that the violations which prompte~ 

the issuance of the citations resulted from actions by certain independent 

contractors. Further, respondent asserted that it exercised no control 

over the work or safety of the contractors' employees and that petitioner's 

attempts to penalize the respondent by imposing civil penalties for violations committed by the contractors is an abuse of discretion. 

The parties stipulated that Citation No. 190840 is attributable to the 

activities by an independent contractor hired by the respondent to perform 

work at its limestone quarry in Gooden, Missouri. Further, after taking 

testimony and evidence concerning Citationi No. 178827, petitioner conceded 

that this citation is also attributable to an independent contractor (Tr. 52). 

Respondent's assertion that the Secretary abused his enforcement discretion by proceeding against the respondent mine operator is rejected. It is 

clear from the present state of the law that an owner-operator of a mine 

subject to the provisions of the Act can be held respon_§_ible for any violations committed by its contractor. MSHA v. Old Ben Coai Company, VINC 79-119 

(October 29, 1979); MSHA v. Monterey Coal Company, HOPE 78-469 and 78-476 

(November 13,1979). 

Docket No. CENT 79-171-M 

104(a) Citation No. 190840, issued on February 27, 1979, cites an alleged 

violation of 30 C.F.R. § 56.4-2, ·and states as follows: "Signs warning 

against smoking and open flames were not posted at the contractor (stripping 

crew) fuel storage area." 

30 C.F.R. § 56.4-2 provides as follows: "Signs warning against smoking 

and open flames shall be posted so they can be readily seen in areas or 

places where fire or explosion hazards exist." 

Fact of Violation 

In support of the citation in question, petitioner presented the testimony of MSHA inspector Darrell L. Ragsdale who confirmed that he issued the 

citation after conducting an inspection of the mine. He also testified as 

to the facts and circumstances which prompted the issuance of the citation 

(Tr. 79-85), was cross-examined by respondent's representative, and responded 

to several questions p~sed by me (Tr. 85-104, 133-134). 

In defense of the citation, respondent presented the testimony of 

Mr. Dwight Dozier, one of its sales representatives. He testified as to the 

activities of the independent contractor loader operators who were working 

around the fuel storage area (Tr. 104-115). 

1836 
I find- that the Secretary has established the fact of violation by a preponderance of the evidence. It is clear from the testimony and evidence presented by the petitioner ·in:- s~pport of the citation that the required warning 

sign was not posted and respondent has not rebutted this fact. Failure to 

post a sign warning against smoking and open flames on the diesel fuel storage 

tank constitutes a violation of the cited safety standard (Tr. 203-205). The 

citation is AFFIRMED. 

Gravity 

The inspector testified that one of respondent's employees and four contractor employees were in the "area" of the diesel fuel storage tank, and 

that they were approximately 400 to 500 yards away. He assumed that the 

dozers and scrapers being used by the contractor employees were using diesel 

fuel from the storage tank, but he did not ascertain how much fuel was in the 

tank and upon inspection of the tank, he found it to be in good condition. 

The tank was a portable 3,000-gallon capacity tank, and the inspector indicated that a rupture and an ignition would have to occur before any hazard 

was presented. Based on the good condition of the tank, the fact that there 

is no indication or evidence that anyone was smoking, the fact that the 

equipment being operated was some great distance away from -the fuel tank, 

and the fact that the inspector observed no fueling taking place, I can only 

conclude that the failure to post a warning sign was a nonserious violation 

(Tr. 205-206). 

Negligence 

Testimony by the inspector reflected that respondent's loader operator 

obtained his fuel from a source other than the cited fuel tank. Further, it 

is clear to me that the citation resulted from the acts of the independent 

contractor and that none of respondent's employees were expoesed to any 

hazard. I have also considered the fact that respondent's plant is mobile; 

that is, it is moved from site to site and that respondent often does not 

have personnel present while work is being performed by the contractor. 

Considering all of these circumstances, I find no negligence on the part of 

the respondent with respect to the citation in question. I conclude that 

the respond.ent could not have reasonably known of the condition cited (Tr. 

206-207). 

Docket No. CENT 79-108-M 

104(a) Citation No. 178827, issued on February 22, 1979, alleges a violation of 30 C.F .R. § 56.9-ll, and states as follows: "The windshield of 

the JD 644-B front end loader was cracked from top to bottom extending left 

to right across the entire glass. The vision of the driver was impared 

[sic]." 

30 C.F.R. § 56.9-ll provides as follows: "Cab windows shall be of 

safety glass or equivalent, in good condition and shall be kept clean." 

1837 
Fact of Violation 

-~ -· - -- MSHA inspector-William L. Worsham testified as .to the cracked windshield 

which he observed and respondent does not dispute the fact that the windshield in question was in fact cracked. As a matter of fact, plant manager 

Dave Short confirmed the fact that the windshield in question was cracked. 

Section 56.9-11 requires that cab windows be maintained in good condition. 

Although the evidence establishes that the loader windshield was safety 

glass, the fact is that it was cracked and the extent of the crack resulted 

in the impairment of the vision of the loader operator. Under the circumstances, I conclude that the windshield in question was not in good condition and I find that the petitioner has established a violation (Tr. 21-34, 

42-50, 52-61, 65-67, 71-79). The citation is AFFIRMED (Tr. 194-195). 

Gravity 

The extent of the crack in the loader windshield in question, and the 

inspector's testimony that the vision of the loader operator was impaired, 

supports a conclusion that the violation was serious. Although the evidence 

reflects that only one truck was loaded on the day in question and that the 

truck driver was not directly exposed to any hazard or·be1ng struck by the 

loader, the fact is that the evidence and testimony adduced reflected that 

as many as 12 to 14 trucks may be loaded on any given day, and the operation 

of a loader with a cracked windshield which impairs the vision of the operator presents a hazardous condition and situation. I conclude that the condition of the windshield constituted a serious violation (Tr. 196). 

Negligence 

In this case, the evidence establishes that respondent's Plant Manager 

Short was also in charge of safety at the Klein Quarry. He candidly admitted that he was aware of the cracked windshield 2 days before the citation 

was issued. However, he immediately advised the loader operator about the 

condition, but indicated that he had no authority to remove the equipment 

from service since it was the property of the contractor (Tr. 52, 56, 57-59). 

Mr. Short also testified that when the plant is operating at the Klein Quarry 

he is there on a daily basis, and he indicated that he was there the day 

before the inspection in question and that the windshield __ was cracked 

(Tr. 64). 

Notwithstanding the fact that the loader in question was the property 

of the contractor rather than the respondent, the fact is that the quarry 

manager who was present and aware of the condition of the windshield was 

respondent's employee. He was at the mine site when h~ discovered the 

defective windshield and was aware of it until the day the citation issued. 

Under these circumstances, I find that the condition cited resulted from 

ordinary negligence on the part of the respondent (Tr. 200-201). 

1838 
History of Prior Violations 

The parties "f3tiptilafea-that the respondent's history of prior violations 

at the Gooden Quarry and Mill, Docket No. CENT 79-171-M, was "average" and 

petitioner asserted that this prior history consists of two citations for 

the 2-year period prior to the issuance of the citation on February 22, 1979. 

The parties stipulated that respondent's prior history of violations 

at its Klein Quarry, Docket No. CENT 79-108-M, consist of those listed in 

Appendix A to the signed stipulation offered and received at the hearing. 

That doctunent is an M_SHA computer printout which reflects that respondent 

has paid $340 in civil penalties for seven citations issued during the period 

February 23, 1977, to February 22, 1979. 

Based on the size and scope of respondent's mining operations, I cannot 

conclude that the aforesaid history of prior violations constitutes a poor 

safety record. To the contrary, I conclude that it indicates a good safety 

record on the part of the respondent, and this fact is reflected in the civil 

penalties assessed by me in these proceedings. 

Good Faith Compliance 

The parties stipulated that the respondent demonstrated good faith by 

achieving rapid compliance in the abatement of the conditions cited. I 

accept this as my findings with regard to the citations in issue in these 

proceedings. 

Size of Business and Effect of Penalties on Respondent's Ability Remain in 

Business 

The parties presented information concerning the size and scope of 

respondent's mining operations stated in terms of annual production tonnage 

and man-hours. Respondent's representative asserted that respondent operates a ntunber of mining sites nationwide, and the parties agreed that respondent is a large operator. I adopt this as my finding in these proceedings. 

The parties stipulated that payment of the assessed civil penalties will 

have no effect on respondent's ability to continue in business, and I adopt 

this agreement as my conclusion on this questi9n. 

Alleged Failure by the Inspectors to Inform Respondent of Their Inspections 

and to Afford Respondent's Representative of an Opportunity to Accompany the 

Inspectors During Their Inspections 

During the course of the hearing, respondent, for the first time, 

asserted that the inspector did not follow the proper procedure because he 

did not give the respondent's representative an opportunity to accompany him 

during his inspections (Tr. 36). After careful review of the testimony and 

circumstances surrounding the inspection at the Klein Quarry (Docket No. CENT 

79-108-M), respondent's contention is rejected. The inspector believed that 

1839 
the loader operator was an employee of the respondent, and at the time of the 

inspection he specificall_y ~~vised the employee of the purpose of his visit 

and afforded him an op-portunity to accompany him. He also gave him an opportunity to call respondent's representative (Tr. 23-25, 30-32, 38). The loader 

operator was the only other person at the mine site (Tr. 43), and the inspector testified that he always attempts to contact mine management during his 

inspections, and that he has in the past contacted plant manager Dave Short 

in this regard (Tr~ 45-46),. On the day in question, tbe quarry in question 

was not in operation and the only activity going on was a loading operation 

with a front-end loader, and the inspector testified that the loader operator advised him that after contacting respondent's office, he was advised 

that no one wanted to come to the mine site (Tr. 47-49). 

With respect to Docket No,. CENT 79-171-M, and the inspection which took 

place at the Gooden Quarry and Mill, the inspector testified that he informed 

Bill Stevenson, the front-end loader operator, of the purpos~ of his visit, 

and Mr. Stevenson accompanied him during his inspection (Tr. 81)., He also 

indicated that an employee of respondent's was at the facility (Tr. 93-94), 

and respondent's sale representative identified Mr. Stevenson as an employee 

of the respondent (Tr .. 105).. Under these circumstances, I conclude that 

respondent was given a full opportunity to accompany the inspector, and its 

assertion to the contrary is rejected. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, civil penal ties 

are assessed as follows in these proceedings (Tr. 198, 211): 

Docket No. CENT 79-108-M 

Citation No. Date 30 C.F.R. Section Assessment 

178827 2-22-79 56.9-11 $95 

Docket No. CENT 79-171-M 

Citation No,. Date 30 C.F.R. Section Assessment 

190840 2-27-79 56.4-2 $20 

ORDER 

Respondent is ORDERED to pay civil penalties totaling $115 within thirty 

(30) days of the date of these decisions. 

-4 

eorge • Koutras 

Administrative Law Judge 

1840 
Distribution: 

-- ' - -- Rochelle G. Stern, Attorney, Office of the Solicitor, u.s. Department 

of Labor, Room 2105, 911 Walnut Street, Kansas City, MO 64105 

(Certified Mail) 

Charles A. Bliss, Martin Marietta Aggregates Central Division, P.O. 

Box 789, Cedar Rapids, IA 52406 (Certified Mail) 

1841 
· 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, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PENNSYLVANIA GLASS SAND 

CORPORATION, 

Respondent 

(703) 756-6210/11/12 

2, 3 JUL 1980 

Civil Penalty Proceeding 

Docket No. CENT 79-354-M 

A.O. No. 23-00544-05002 

Pacific Pit & Plant 

DECISION AND ORDER 

Appearances: John O'Donnell, Esq., U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

Jeffrey J. Yost, Esq., Berkeley Springs, 

West Virginia, for the Respondent. 

Before: Judge Kennedy 

Oral argument in this matter was heard in Courtroom 8 

of the United States Courthouse, 3d and Constitution Avenu~, Washington, D.C. on Thursday, July 16, 1980. The subject was 

a motion to recuse the trial judge filed by counsel for 

Pennsylvania Glass Sand Corporation, a wholly o:wned subsidiary of the International Telephone and Telegraph Company, 

a giant multinational corporation. The asserted ground for 

disqualification was a claimed prejudicial prejudgment of 

the merits of this proceeding that stemmed from a review by 

the judge of the facts set forth in the parties' prehearing 

submissions. The results of this review were stated in 

the trial judge's order of May 14, 1980 which directed the 

parties to show cause why in the absence of any dispute of fact 

or issue of credibility necessitating an evidentiary hearing 

the violation charged (an alleged inadequacy of the foot 

brakes on a 20 ton capacity pit truck) should not be settled 

by the payment of a penalty of $60, instead of the $275 

proposed by the government. This in turn was predicated 

on the judge's finding that while the violation charged was 

1842 
potentially serious, the brakes were mechanically sound and 

were rendered inadequat--e due solely to circumstances beyond 

the control and without the fault or negligence of the operator. 

In a demonstration of professional ineptitude and 

incompetence·previously unsurpassed in the experience of the 

trial judge, counsel for the operator, Mr. Yost, a member 

of the bar of the state of West Virginia and a 1972 graduate 

of the University of West Virginia Law School, admitted 

on the record in open court he had never read and could 

not recite either the facts or the holding of the principal 

precedent relied upon in support of hls motion. l/ 

As the record shows, the case, Withrow v. Larkin, 

421 U.S. 35 (1975), not only does not support the operator's 

ciaim, but on the contrary held that pretrial review by 

an administrative adjudicator of evidence submitted during 

1/ This and other professional ,and ethical lap_i:;es committed 

by Mr. Yost in the course of this proceeding sliould be of 

concern not only to the bar of the State of West Virginia 

but also to the Commission and his supervisor, the General 

Counsel of Pennsylvania Glass Sand Corporation. The record 

shows that in his zeal to create the impression the trial 

judge improperly considered a mine inspector's statement 

in arriving at the evaluation of May 14, Mr. Yost· attempted 

to conceal the fact that he had been in possession of the 

statement since December 1979. It may be that Mr. Yost 

is more to be pitied than censured and should not be 

singled out for his devotion to the transcendental ethic 

of the adversary system, namely that winning is not .everything, it is the only thing. Certainly the Commission, 

the bar associations and, if reports are to be believed, 

the Supreme Court have shown a high tolerance for ethical 

lapses of equal if not greater magnitude. Schwarzer, 

Dealin With Incom etent Counsel--The Trial Jud e's Role, 

Harv. L. Rev. ; Oa es, La!Yer an Ju ge: 

The Ethical Duty of Competency in Fina Report, Annual 

Chief Justice Warren Conference on Advocacy in the United 

States, 73 (1978). Distinguishing half truths from whole 

lies is an occupational hazard for the legal profession 

in general and for most lawyers in particular. Bok, L~ing: Moral Choice in Public and Private Life 154-173 

( antage Books 1978). 

1843 
the course of a pretrial investigation of the matter is 

no bar to the adjud~~~tor's participation in a later 

evidentiary hearI:"Iig under the fair trial/ due process clauses 

of the constitution.. Thus, the Court held: 

* * * The mere exposure to evidence presented in 

nonadversary investigative procedures is insufficient 

in itself to impugn the fairness of the [judge] at 

a later adversary hearing. Without a showing to 

the contrary, [judges] "are assumed to be men of 

conscience and intellectual discipline, capable 

of judging a particular controversy fairly on the 

basis of its own circumstances." United States 

v. Morgan, 313 U.S. 409, 421 (1941). 421 U.S. at 55. 

The Court further held that the fact that an adjudicator on 

the basis of prehearing submissions issues "formal findings 

of fact and conclusions of law asserting" there is "probable 

cause to believe" a violation of law has occurred is no bar 

to the judge's conduct of a subsequent adversary hearing 

in the absence of clear and convincing eviden-ce· that "the 

risk of unfairness is intolerably high." 421 U.S. at 58. 

The general rule is that, 

The risk of bias or prejudgment in this sequence 

of functions has not been considered intolerably 

high or to raise a sufficiently great possibility 

that the adjudicators would be so psychologically 

wedded to their complaints that they would consciously 

or unconsciously avoid the appearance of having 

erred or changed position . . . The initial . . determination of probable cause and the ultimate 

adjudication have different bas.es and purposes. 

The fact that the same [judge] makes them in 

tandem and that they relate to the same issues 

does not result in a procedural due process violation. 421 U.S. at 57-58. 

In conclusion, the Court held, "This mode of procedure does 

not violate the Administrative Procedure Act, and it does 

not violate due process of law." 421 U.S. at 56. The Court 

also cited with approval Professor Davis' statement that the 

APA "does not and probably should not forbid the combination 

with judging of . . . [the function of] negotiating settlements ... " Id. at n. 24. Indeed, as counsel for the Secretary 

pointed out, the Connnission's Rules and the APA specifically 

recognize the power of the trial judge to propose and hold 

1844 
settlement conferences. Rule 54(a)(6). The slight 

"contamination-" of the adjudicatory function that results 

from a trial judge-' s l>a:tticipation in settlement discussions 

has never been deemed sufficient to require disqualification. 

421 U.S. at 56 n. 24. 

This came as somewhat of a shock to Mr. Yost, as I 

am sure it will to some of his more competent colleagues, 

many of whom labor under the impression that admissions 

contained in pleadings and other writings and documents 

filed in response to a formal pretrial order are not 

"evidence". As McCormick points out such "judicial 

admissions" are not hearsay and need not be offered in 

evidence at an adversary hearing before they may be considered 

as probative of the facts asserted. McCormick On Evidence, 

§ 265 (1972 ed.). The Act and the Connnission's rules of 

practice clearly provide for pretrial discovery at the 

instance of the trial judge. Thus, section 113(e) of the 

Act and Rule 58 empower the trial judge to "compel the 

attendance and testimony of witnesses and the production 

of books, papers, documents, or objects and [tp]-order 

testimony to be taken by deposition at any sta~e of the 

proceedings before [him]." (Emphasis supplied. 

There is no merit, therefore, in the claim that a 

trial judge's pretrial involvement in the development of 

the facts and formulation of the issues to be tried~or 

determined without a trial, is an "extrajudicial" activity 

that creates an appearance of bias or automatically 

disq'ualifies him from participation in hearing and deciding 

the matter. The view that the lawyers are in absolute 

control of the proceeding, and the trial judge powerless 

to require the parties to show a need for an evidentiary 

hearing or to suggest any other procedure for informal 

adjudication in the intarest of a just, speedy and 

inexpensive disposition of the matter, is a myth that 

has long since been discredited. Rule 614 of the Federal 

Rules of Evidence when coupled with the authority conferred 

by section 113(e) of the Act, is clear legislative 

recognition of the fact that, unless they choose to 

be, the law judges are not imprisoned within the case as 

made by the parties. Evidentiary hear.ings are for 

the purpose of resolving genuine issues of credibility, 

veracity or disputes over material facts, not for discovering 

whether such issues exist. Nor are they for the purpose of 

allowing the lawyers to engage in irresponsible and wasteful 

exercises in amateur or obfuscatory advocacy before a captive 

audience. 

1845 
In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme 

Court held that while financial cost alone is not a controlling 

factor in determining -whether due process requires a particular 

procedural safeguard such as an evidentiary hearing prior 

to an administrative decision, the government's interest, 

and hence that of the public, in conserving scarce fiscal 

and administrative resources, is a factor that must be weighed 

in determining the necessity for such a hearing. 424 U.S. 

at 348. The Court noted: 

At some point the benefit of an additional safeguard to the· individual affected by the administrative 

action and to society in terms of increased assurance 

that the action is just, may be outweighed by cost .. The ultimate balance involves a determination as to 

when, under our constitutional system, judicial-type 

procedures must be imposed upon administrative action 

to assure fairness . . . The judicial model of an 

evidentiary hearing ·is neither a required, nor even 

the most effective, method of decisionmaking in 

all circumstances. The essence of due pr0c-ess is 

the requirement that "a person in jeopardy of 

serious loss be given notice of the case against 

him and opportunity to meet it." Id. 

Here, a conservative estimate of the cost of an evidentiary 

hearing in St. Louis, Missouri, the point requested by the 

operator and therefore the situs required under the 

Cormnission's rules and decisions, was $2,000 exclusive of 

the salaries of the participants. Furthermore, a breakdown 

of this estimate showed the cost allocable to the operator, 

exclusive of the salaries paid its prospective witnesses, 

would approximate $700. This cost when weighed against 

even the proposed penalty of $275 shows how grotesquely 

disproportionate the cost of evidentiary hearings can be 

to the deterrent value of the penalty. See also, Cut Slate, 

Inc., 1 FMSHRC 1039 (1979). Unless penalties are increased 

to compensate the public for the cost of such unnecessary 

or improvident hearings, I believe they should be a last, 

not a first, resort. 

Counsel contended, and he said the Commission agrees, 

that because the 1977 Mine Safety Law says an operator and 

the Secretary are to be afforded the "opportunity" for an 

"on the record" hearing as provided under section 5 of 

the APA, 5 U.S.C. § 554, a confrontational type hearing is a 

jurisdictional prerequisite to a penalty assessment 

1846 
unless both counsel agree to settle or that there are no 

disputed issues __ o:Cmat_erial fact. Peabody Goal Com-tan~, 2 

FMSHRC 1035 (1980). I believe this. is a substantial y air 

reading of Peabody, but note the Commission beat a hasty 

retreat from the rigidity of Peabody in New Jersey Pulverizing, 

2 FMSHRC , July 2, 1980. In the latter case, the Commission 

denied the-8ecretary's punitive, unilateral demand for an 

evidentiary hearing in the face of opposition from both the 

trial judge and the operator. Although the Commission's 

decision does not mention it, the judge's reduction in the 

amount of the penalty in dispute was only $16. I believe 

the trial judges and the Commission must be alert to prevent 

use of the evidentiary hearing by either the solicitor or the 

operator to coerce the trial judge into rubber stamping· 

improvident settlement proposals. Whenever, and for whatever 

reason, the Commission tilts the scales 0£ procedural 

fairness, it risks doing itself and the cause of administrative 

justice a serious disservice. 

Furthermore, for the reasons set forth in my decision 

after remand in Peabody, 2 FMSHRC __ , July 11-, ·1980, I 

emphatically do not agree with the operator's claim that "an 

administrative law judge does not have the authority to 

require parties to show there is a genuine issue of material 

fact or question of credibility before he must grant them an 

evidentiary hearing." 

The idea that fundamental due process accords a party 

the r1ght, if he chooses to exercise it, to have every item 

of evidence submitted via a witness in open court subject to 

full cross-examination has never been the rule in administrative 

proceedings. In Richardson v., Perales, 402 U.S. 389 (1971), 

the Supreme Court held the APA mandates cross-examination 

only to the extent that it "may be required for a full and 

true disclosure of the facts" and does not preclude a requirement 

for the submission of all or part of the evidence in written 

form, 402 U.S. at 409. Certainly, if such evidence is 

admissible.as part of the "on the record" hearing, it must 

be admissible as part of the prehearing record particularly 

when it is received subject to the parties' right to show a 

need for cross-examination. 

Directly in point on the claim that the APA and the 

Mine Safety Act mandate an opportunity to cro~s-examine 

before any item of information may be treated as "evidence" 

is United States v. Florida East Coast Railwai Co., 410 U.S. 

224 (1973). There the Court was confronted with the necessity 

of defining the meaning of the term "hearing" as used in the 

ICC Act. The Court found: 

1847 
The term "hearing" in its legal context undoubtedly 

has a host of meanings. Its meaning undoubtedly 

will vary--depending on whether it is used in the 

context of a rulemaking type proceeding or in the 

context of a proceeding devoted to the adjudication 

of particular disputed facts. . . [W]e think that 

reference to [the Administrative Procedure Act], in 

which Congress devoted itself exclusively to questions 

such as the nature and scope of hearings,· is a 

satisfactory basis for determining what is meant 

by the term "hearing" used in another statute. Turning 

to [the APA], we are convinced that the term 

,.'hearing" as used therein does not necessarily embrace 

either the right to present evidence orally and to 

cross-examine opposing witnesses, or the right to' 

present oral argument to.the agency's decisionmaker. 

* * * 

·k ·k ·k even where the statute requires that [the 

proceeding] take place "on the record af:t:er-o:pportunity 

for an agency hearing," thus triggering the applicability 

of § 556, subsection d provides that the agency may 

proceed by the submission of all or part of the evidence 

in written form if a party will not be "prejudiced 

thereby". Again the Act makes it plain that a specific 

statutory mandate that the proceedings take place on 

the record after hearing may be satisfied in some 

circumstances by evidentiary submission in written 

form only. 

* * * * 

We think this treatment of the term "hearing" in the 

Administrative Procedure Act affords a sufficient basis 

for concluding that the requirement for a hearing . . . did not by its own force require the Connnission either 

to hear oral testimony, to permit cross-examination 

of Commission witnesses, or to hear oral argU.ment. 

410 U.S. 240-241. 

Since Florida East Coast establishes that a statutory requirement for an APA "hearing" may be satisfied without a trial 

it simply is not true that valid adjudicative actions 

cannot be taken under the Mine Safety Act in the absence of 

an oral hearing at which the parties are afforded the opportunity 

to cross-examine witnesses. For this reason, the trial 

judge has repeatedly suggested that under its de novo 

1848 

(-" 
authority to "assess" penalties (section llO(i)) and to 

"approve" proposals to "compromise, mitigate, or settle" 

penalties (sectioh ·tIO{k)), the Commission encourage the use 

of informal adjudicatory procedures involving written submissions 

to effect a just, speedy and inexpensive disposition of 

cases where the amounts involved do not warrant the convening 

of a trial-type hearing or there is no genuine dispute of 

material adjudicative fact. 

The choice is not between swatting flies with a sledge 

hammer or rubberstamping improvident settlement proposals, 

but the use of traditional pretrial techniques to screen 

out cases that do not merit the time and expense of a trialtype hearing and to dispose of such cases on written submissions 

or at settlement conferences. See e.g. Rehublic Steel Corp., 

2 FMSHRC 666 (March 7, 1980); Jones & Laug lin Steel, 2 FMSHRC 

678 (March 11, 1980); Consolidation Coal Co., 2 FMSHRC 725 

(March 19, 1980); Consolidation Coal Co., 2 FMSHRC 1084 

(May 9, 1980); U.S. Steel Corporation, 2 FMSHRC 1115 (May 20, 1980); 

Missouri Gravel Co., 2 FMSHRC 1124 (May 22, 1980); Call & Ramsey 

Co., 2 FMSHRC 1237 (May 14, 1980); Beckley Coal __ Co. and 

Kanawha Coal Co., 2 FMSHRC 1658 (June 27, 1980); Missouri 

Gravel Co., 2 FMSHRC (July 8, 1980). 

Just as war is too important to be left to the generals 

so also justice is too important to be left to the selfserving interests of the lawyers. Professor Maurice Rosenberg, 

in his Jackson Lecture before the National College of State 

TriaL Judges, has effectively shown that formal rules, 

actual practices, and most procedural innovations in recent 

times have reflected a gain in judges' power and activity 

"at the expense of the lawyers' role as the mover and director 

of litigation." Nothing, he believes, will slacken the 

trend toward judicial activism. M. Rosenberg, The Adversary 

Process in the Year 2000, 1 Prospectus, 5, 15-18 (1968). 

That judicial activism is necessary if we are to have a 

rule of law rather than a rule of lawyers is underscored by 

the following comments by Chief Judge Irving Kaufman of the 

Second Circuit: 

·k ·k ·k our current emphasis on early judicial 

intervention is . . . the culmination of the 

efforts of many of our greatest legal tqinkers 

to induce the judges to ... take an active part 

in the control of litigation . . . Contrary 

to what most of us have accepted as gospel, a 

purely adversary system, uncontrolled by the 

judiciary, is not an automatic guarantee that 

justice will be done. 

1849 

1-7-

.~ ... 
The Philosoph of Effective Judicial Su ervision Over Liti ation, 

F. R. D. 207, _?O~__, __ 21L_ 1 2 . 

In 1906, Roscoe Pound shocked the lawyers of that time 

by speaking derisively of the cherished adversary system as 

the "sporting theory of justice" and documented its inefficiencies 

and intricacies. He also advocated the removal of certain 

matters from the courts to administrative tribunals where 

they could be subjected to disposition in a more efficient, 

if less adversary, fashion. Pound's attack on the adversary 

system was vigorously rejected by the bar and his ideas did 

not receive the unqualified endorsement of the ABA until 

1976 when the Chief Justice adopted them as his own. At 

that time, in his appearance before The National Conference 

on the Causes of Popular Dissatisfaction with the Administration 

of Justice, the Chief Justice offered solutions to the 

stultifying delays and staggering expense of modern litigation 

that centered around more judicial control of the adversary 

process. Burger, agenda for 2000 A.D.--A Need for Systematic 

Anticipation, 70 F.R.D. 83 (1976). __ 

After this enlightenment, Mr. Yost, persuaded his 

position was based on an almost total misunderstanding of 

the relevant facts and applicable law, elected to withdraw 

his motion to recuse 2/ and to move for approval of a 

settlement in the amount of $60.00--the amount proposed 

in the show cause order of May 14, 1980: Mr. O'Donnell, 

counsel for the Secretary concurred, whereupon the trial 

judge granted both motions from the bench and ordered the 

matter dismissed. 

The premises considered, it is ORDERED that the bench 

decision be, and hereby is, ADOPTED and CONFIRMED as the 

~/ This made it unnecessary to decide whether the motion 

was filed in good faith or was frivolous and filed for the 

purpose of causing vexatious delay and harrassment of the 

administrative process. I also pass the question whether 

an adjudicatory agency has the power to tax attorney fees 

and costs against a party who has litigated in bad faith 

or may assess those expenses against counsel who willfully 

abuse the.administrative process. See,.Roadway Exzress, 

Inc. v. Pi.per, et al., U.S. , slip op. 11-1, 

decided June 23, 1980. --- ---

1850 
final disposition of this matter and upon payment of the 

settlement agreed upon, $60.00, on or before July 30, 1980, 

the captioned matter be-DISMISSED. 

Distribution: 

Jo eph B. Kennedy 

Administrative Law 

Robert J. Lesnick, Esq., U.S. Department of Labor, Office 

of the Solicitor, Rm. 2106, 911 Walnut St., Kansas Cy., MO 64106 (Certified Mail) 

John H. O'Donnell, Esq., U.S. Department of La~Qr, Office 

of the Solicitor, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

Jeffrey J. Yost, Esq., Pennsylvania Glass Sand Corp., P.O. 

Box 187, Berkeley Springs, WV 25411 (Certified Mail) 

1851 

1:: 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

· OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWE~S NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 3 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

PEGGY-0 COAL COMPANY, INC., 

Respondent 

Docket Nos. 

VA 79-41 

VA 79-43 

NORT 79-58-P 

NORT 79-87-P 

No. 4 Mine 

DECISION 

Assessment Control Nos. 

44-04680-03007 v 

44-04680-0300'\ v 

44-04680-03002 

44-04680-03005 v 

Appearances: Sidney Salkin, Esq., and Covette Rooney, Attorney, Office of 

the Solicitor, U.S. Department of Labor, for Petitioner; 

James Ball, Vansant, Virginia, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 5, 1980, a hearing in the 

above-entitled proceeding was held on May 8, 1980, in Richlands, Virginia, 

under section 105(d) of the Federal Mine Safety and Health Act of 1977. 

Upon completion of introduction of evidence by the parties, I rendered 

the bench decision which is reproduced below (Tr. 103-118): 

This consolidated hearing involves four Petitions for 

Assessment of Civil· Penalty filed by the Secretary of-Labor 

seeking to have civil penalties assessed for a total of 

13 alleged violations of the mandatory health and safety 

standards by Peggy-0 Coal Company, Incorporated. The Petition in Docket No. NORT 79-58-P was filed on January 19, 1979, 

and alleges seven violations. The Petition in Docket No. 

NORT 79-87-P was filed on April 30, 1979, and alleges one 

violation. The Petitions in Docket Nos. VA 79-41 and VA 79-43 

were both filed on July 10, 1979, and allege one and four 

violations, respectively. The issues in a civil penalty case 

are whether violations occurred and, if so, what civil penalties should be assessed based on the six criteria contained 

in section llO(i) of the Federal Mine Safety and Health Act 

of 1977. In this case two of those criteria can be considered 

1852 
on an overall basis and I shall make one set of findings for 

those first t_w_o .criteria, which are the size of the respondent's business and whether the payment of penalties would 

cause respondent to discontinue in business. First, as to 

the size of respondent's business, the record shows that at 

the time the citations and orders in this proceeding were 

written, the operator had two coal mines, the No. 4 and the 

No. 5. Each of the mines produced about 150 to 200 tons of 

coal on an average daily basis and employed between eight and 

nine miners. At the present time, the No. 4 Mine is no 

longer in operation, but respondent does have 'in operation 

the Nos. 8 and 9 Mines. The No. 8 Mine produces about 

100 tons of coal per day and the No. 9 produces approximately 

150 to 200 tons of coal per day. Respondent sells its coal 

to Commonwealth Resources under a contract which requires 

respondent to sell on a fixed amount per ton. Therefore, on 

the basis of those facts I find that respondent is a small 

company and that any penalties assessed in this case should 

be in a low range of magnitude to the extent that the penalties are determined by the criterion of the size of respondent's business. 

The operator testified that he is not in as good a 

financial condition at this time as he'd like to be and he 

indicated that while he would be able to come up with money 

assessed in the form of penalties that it would be difficult 

for him to do so. On the basis of that information I con-

_clude that the payment of penalties would not cause the 

respondent to discontinue in business so long as penalties 

are reasonably assessed under the six criteria. 

The remaining four criteria, history of previous violations, gravity, negligence, and good faith effort to achieve 

rapid compliance will each have to be considered separately 

for each violation. 

Contested Proceeding 

Docket No. NORT 79-87-P 

Only one violation is alleged in Docket No. NORT 79-87-P. 

That alleged violation is based on Citation No. 322486 dated 

October 24, 1978, alleging a violation of section 75.200. 

Section 75.200 requires the operator of each coal mine to 

file with MSHA a roof-control plan applicable to'the situation in each mine. In this proceeding the roof-control plan 

was introduced as Exhibit 2A. A violation of section 75.200 

occurred because in the operator's battery charging station, 

which was located in the No. 6 entry inby survey station 

No. 248, the inspector observed 18-inch roof bolts in an area 

measuring approximately 80 feet by 20 feet. .The roof-control 

1853 
plan requires that bolts no shorter than 30 inches shall be 

used in the roof-control pattern. On October 24, 1978, when 

the inspector_wrote-Citation No. 322486, he found that only 

10 of the bolts in the battery charging station were 30 inches 

in length. The inspector did not make a detailed diagram of 

the way the bolting pattern appeared on October 24. When the 

inspector wrote Citation No. 322486, however, he provided 

that the operator should place 30-inch roof bolts as required 

by the roof-control plan in the battery charging station by 

October 27, 1978. When the inspector returned on October 27, 

1978, he did not find that an appropriate number of 30-inch 

roof bolts had been installed. He believed that the operator 

had made little or no effort to abate the violation of section 75.200 cited in Citation No. 322486. Consequently, he 

wrote an order of withdrawal requiring the operator to 

install 30-inch roof bolts in accordance with the roof-control 

plan. 

When the inspector returned on October 30, which was a 

Monday, following the writing of the order on the preceding 

Friday, he found that 30-inch roof bolts had been installed 

on 5-foot centers.as required by the roof-control plan and 

therefore he terminated the order of withdrawal. The roofcontrol plan does indicate on page two of Exhibit 2A that the 

roof bolts must anchor in at least 12 inches of firm strata. 

A roof-control expert has testified in this proceeding that 

that provision should be interpreted to mean that a 30-inch 

roof bolt is always required as a minimum length and that 

30-inch roof bolts must anchor into at least twelve inches of 

firm roof support. It was the inspector's belief and also 

the belief of the roof-control expert that the violation 

alleged in Citation No. 322486 was serious because of respondent's failure to install a proper number of 30-inch roof 

bolts. 

The inspector stated that when he came back on October 27 

to check this area, nine roof bolts had been installed of the 

required 30-inch length, but they had been instatled where 

nine 18-inch roof bolts had been removed. The inspector's 

Exhibit 23 shows that there were 31 eighteen-inch roof bolts 

in existence in the battery charging station area and nine of 

those indications, namely Nos. 7, 12, 13, 14, 15, 16, 18, 26, 

and 27 did have 30-inch roof bolts installed beside the holes 

where the 18-inch roof bolts had been removed. So by 

October 27, or 3 days after the citation was written, respondent had installed nine bolts in addition to the 10 which the 

inspector observed on October 24 •. The inspector estimated 

that 60 roof bolts would have been required in this area and 

the roof control expert testified that 64 thirty-inch bolts 

should have been installed in this area. Consequently, on 

1854 
October 27, 1978, there were still 

least 40, ·...thirty-inch- roof bolts. 

have just recited I think that the 

that this was a serious violation. 

lacking in this area at 

Based on the facts that I 

record justifies a finding 

Respondent was represented by the owner in this proceeding and the owner has testified that he did not install any 

more bolts in the battery charging station between October 24, 

1978, when the citation was written, and October 30, 1978, 

when the order of withdrawal was terminated. The owner states 

that he did install about eight or 10 roof bolts in a 10- by 

15-foot area which had been cited by the inspector in his 

order as having been completely unsupported (Exh. 3). 

I find that the inspector's testimony in this instance 

must be given more weight than that of the owner because the 

inspector had detailed notes to document his findings and I 

do not believe the inspector would have fabricated what he 

saw and would have put it in documentary form without having 

a visual basis for it. Moreover, the inspector's findings 

were supported by the testimony of Inspector Matney, who at 

that time was a trainee and who is now a full-fledged MSHA 

inspector. Consequently, I find that I must make my findings 

on the basis of the inspector's statements in this instance. 

Coming to the criterion of negligence, the operator knew, 

and is required to know, the provisions of his roof control 

plan; consequently, he should have installed the necessary 

30-inch roof bolts. 

It should be noted for the record that the area where 

the battery-charging station was situated had been increased 

in height by the removal of some of the roof, so that where 

the ordinary mining height in this area was 44 inches, the 

roof of the battery-charging station had been blasted out to 

make an area approximately 7 feet in height. In doing the 

blasting work the operator had, of course, destroyed the 

original roof support pattern and was obligated to_ install 

30-inch roof bolts, on 5-foot centers just as if this were 

a new area from which coal had been removed. 

It has been the operator's defense in this case that the 

18-inch roof bolts had been installed for the purpose of 

holding the wires which carried the electricity needed to 

operate the battery-charging stations, of which there were 

three in this area. While that may have been his purpose in 

putting in the 18-inch roof bolts, the fact remains and the 

evidence shows that the 30-inch roof bolts had not been 

installed as they should have been. The inspector has indicated that there would have been no objection to the operator's having installed 18-inch roof bolts to support his 

1855 
wire provided he had first installed 30-inch roof bolts as 

required_ by the roof-control plan. The inspector claims that 

the reason Ure·· op~rator had not put in 30-inch roof bolts was 

that he felt that the sandstone in the roof of the batterycharging station was extremely hard and a lot of bits were 

used up in drilling these holes and that the operator used 

18-inch roof bolts, instead of 30-inch roof bolts, as a 

matter of economics rather than for the purpose of hanging 

the wires on them. 

There is no reason to doubt the operator's statement 

that he put fn 18-inch roof bolts for the purpose of supporting his wire. The fact remains that he had not put in 

30~inch roof bolts which were required to make this area safe. 

Three scoops were used in the mine to load coal and transport 

it from the face to the conveyor belt; consequently, at 

various times, three different scoop operators came to the 

battery-charging station to get new batteries or to obtain 

recharged batteries. Therefore, the operator's failure to 

support this area properly was the result of gross negligence. 

We come now to the criterion of whether the operator 

showed good faith effort to achieve rapid compliance. The 

record shows that he did not demonstrate good faith because he 

not only didn't make any effort to install the proper number 

of 30-inch roof bolts between October 24 and October 27, but 

did not install them at all until his mine was closed with a 

withdrawal order. Consequently, it's impossible to find that 

.he showed good faith in abating this violation of section 

75.200. 

Exhibit 5A shows that the No. 4 Mine had two violations 

of section 75.200 in 1977 and two violations in 1978. 

Although we have two exhibits in the proceeding which are 

supposed to cover different portions of the years both of the 

exhibits show violations for some of the same time period. 

So it's a little bit confusing to try to determine the number 

of violations for other than 1977 and 1978. I always look 

upon violations of section 75.200 as being the worst type of 

violation that a company can have on a repetitious basis. So 

I think that even two violations each year is an excessive 

number of violations of section 75.200 and therefore under 

the criterion of history of previous violations I shall assess 

a $50 penalty on that criterion alone. Respondent's failure 

to show a good faith effort to achieve rapid compliance should 

be assessed at $150. The gravity of the violation should be 

assessed $200, and the negligence involved should be assessed 

at $300, or a total penalty of $700 for this violation of section 75.200 alleged in Citation No. 322486. 

1856 
After the bench decision set forth above had been rendered, the parties 

entered into a set"tlell)ent conference which resulted in the making of motions 

for approval of settlements as to the alleged violations in the remaining three 

dockets. The bases for approval of settlements are discussed below. 

Settlement Agreements 

Docket No. VA 79-41 

Order No. 322927 1/23/79 § 75.403 

Order No. 322927 alleged a violation of section 75.403 for which the 

Assessment Office proposed a penalty of $700. Respondent has agreed to pay 

a reduced amount of $600. The circumstances believed to warrant the reduction of $100 is that, although the violation did exist, the operator had in 

fact made preparations to clean up and rock dust the affected areas and had 

assigned a man to do the work prior to the time the inspection occurred. At 

the time the inspector observed the violation, the work had not been started, 

but the preparations had been previously made. Counsel for the Secretary 

believed that the aforesaid circumstances reduced the degree of gravity and 

negligence sufficiently to justify the reduction (Tr. 11Z~fi3). 

Docket No. VA 79-43 

Order No. 322926 1/23/79 § 75.400 

Order No. 322926 alleged a violation of section 75.400 for which the 

Assessment Office proposed a penalty of $500. Respondent has agreed ·to pay a 

reduced amount of $250. The grounds for the reduction are based on the facts 

that the inspector observed no stuck rollers along the belt line where the 

accumulations existed and the mine floor was wet. No known ignition sources 

were present and there were no miners in the area. Additionally, the alleged 

violation was promptly abated. In such circumstances, the gravity of the 

violation was diminished. Therefore, a reduction in the penalty is justified 

(Tr. 113). 

Order No. 322515 12/28/78 § 75.316 

Order No. 322515 alleged a violation of se9tion 75.316 for which the 

Assessment Office proposed a penalty of $500. Respondent has agreed to pay 

a reduced amount of $400. The alleged violation did not expose any miners 

to respirable dust because no one was working in the area where curtains 

had not been installed. There was immediate compliance because curtains 

were installed within 45 minutes (Tr. 113-114). 

Order No. 322516 12/28/78 § 75.316 

Order No. 322516 alleged a violation of section 75.316 for which the 

Assessment Office proposed a penalty of $500. Respondent has agreed to pay 

a reduced amount of $400. The degree of negligence was reduced by the fact 

1857 
that the operator was prepared to install line brattice in each of the 

affected work areas at t~_t_ime of the inspection. Gravity was not great 

because, although--coai -had been shot, it had not been loaded. Abatement 

was immediate; therefore reducing the penalty is justified. 

Order No. 322517 12/28/78 § 75.319(1) 

Order No. 322517 alleged a violation of section 75.319(1) for which the 

Assessment Office proposed a penalty of $250. Respondent has agreed to pay 

a reduced amount of $150. The inspector's order was based on his conclusion 

that the operator had.been working two sections on a single split of air. 

The inspector, however, did not observe two loading machines and the operator 

denies that he intended to operate two sections on a single split of air. If 

a hearing had been held, a credibility issue would have been raised. Therefore, a reduction in the penalty is warranted (Tr. 114). 

Docket No. NORT 79-58-P 

Citation No. 323809 8/1/78 § 75.1715 

Citation No. 323809 alleged a violation of section·t.5.1715 for which the 

Assessment Office proposed a penalty of $40. Respondent has agreed to pay a 

reduced amount of $35. A reduction of $5 is warranted because the operator 

explained to the Secretary that he did have a check-in and check-out system; 

that he had records which indicated to him the identity of each miner working 

underground. The only items he lacked were the tags which the regulations 

require miners to wear (Tr. 81). 

Citation No. 323810 8/1/78 § 75.1702 

Citation No. 323810 alleged a violation of section 75.1702 for which the 

Assessment Office proposed a penalty of $78. The respondent has agreed to 

pay a reduced amount of $73. As justification for the reduced penalty, the 

operator claims that he had just purchased a cigar prior to accompanying 

the inspector inside the mine. The cigar was still wrapped and the operator 

had no matches. The operator forgot that he was carrying the cigar until it 

happened to drop out of his pocket (Tr. 82). 

Citation No. 323811 8/1/78 § 75.1714 

Citation No. 323811 alleged a violation of section 75.1714 for which the 

Assessment Office proposed a penalty of $84. Respondent has agreed to pay a 

reduced amount of $78. As justification for the reduction, the operator indicated to the Secretary's counsel that no hazard was involved in the fact that 

two miners were not wearing their self-rescuers because of the fact that selfrescuers were in the area. The gravity of the violation was low inasmuch as 

self-rescuers were promptly o_btained once their absence was pointed out 

(Tr. 82). 

1858 
Citation No~ 323812 8/1/78 § 75.400 

Citation No. 323812. alleged a violation of section 75.400 for which the 

Assessment Office proposed a penalty of $114. Respondent has agreed to pay 

a reduced amount of $94. As grounds for the reduction, the operator has 

indicated to the Secretary's counsel that the wiring was intact in the area 

of the coal accumulation and no stuck rollers existed along the conveyor 

belt. The inspector agreed that there were no ignition sources which would 

have been likely to cause a fire. 

Citation No. 323813 8/1/78 § 75.516-2(a) 

Citation No. 323813 alleged a violation of section 75.516-2(a) for which 

the Assessment Office proposed a penalty of $106. Respondent has agreed to 

pay a reduced amount of $98. As grounds for a reduction, the operator indicated to the Secretary's counsel that there was insulation on the wires used 

as hangers and that the wires being suspended were in good condition. The 

inspector confirmed the operator's claims. Therefore, the Secretary's counsel 

believed that a reduction in the penalty is justified. 

Citation No. 323814 8/1/78 § 75.1713-7(a)(3) 

Citation No. 323814 alleged a violation of section 75.1713-7(a)(3) for 

which the Assessment Office proposed a penalty of $66. Respondent has agreed 

to pay a reduced amount of $61. A reduction is believed to be appropriate 

because the operator and the inspector both agree that only one person was in 

the area where the first-aid kit lacked a full complement of supplies and the 

operator immediately corrected the deficiencies. 

Citation No. 323817 8/2/78 § 75.1704-2(d) 

Citation No. 323817 alleged a violation of section 75.1704-2(d) for 

which the Assessment Office proposed a penalty of $48. Respondent has agreed 

to pay a reduced amount of $43. The basis for the settlement in this instance 

is that the operator has indicated to the Secretary's counsel, and the inspector agrees, that the operator did have a map and that he promptly posted the 

map after the citation was issued, thus reducing the degree of negligence and 

providing prompt abatement. 

I find that respondent and counsel for the Secretary gave satisfactory 

reasons for approval of the penalties agreed upon in their settlement conference and that the settlement agreements hereinbefore discussed should be 

accepted. 

Sutmnary of Assessments and Conclusions 

(1) Based on all the evidence of record and the aforesaid findings 

of fact, or the parties' settlement agreements, the following civil penalties 

should be assessed: 

1859 
Docket No. VA 79-41 

Order No. 322927 1/23/79 § 75.403 ••••••• (Settled) ••••••• $ 

Docket No. VA 79-43 

Order No. 322515 12/28/78 § 75.316 •••••• (Settled) •• ~···· 

Order No. 322516 12/28/78 § 75.316 •••••• (Settled) ••••••• 

Order No. 322517 12/28/78 § 75.319(1) ••• (Settled) ••••••• 

Order No. 322926 1/23/79 § 75.400 •••••• (Settled) ••••••• 

600.00 

400.00 

400.00 

150.00 

250.00 

Total Settlement _Penalties in Docket No. VA 79-43 •••••• $1,200.00 

Docket No. NORT 79-58-P 

Citation No. 323809 8/1/78 § 75.1715 •••••••• (Settled) ••• $ 35.00 

Citation No. 323810 8/1/78 § 75.1702 •••••••• (Settled) ••• 73.00 

Citation No. 323811 8/1/78 § 75.1714 •••••••• (Settled) ••• 78.00 

Citation No. 323812 8/1/78 § 75.400 • •••••••• (Settled) ••• 94.00 

Citation No. 323813 8/1/78 § 75.516-2(a) •••• (Set!J_ad).· •• 98.00 

Citation No. 323814 8/1/78 § 75.1713-7(a)(3).(Settled) ••• 61.00 

Citation No. 323817 8/2/78 § 75.1704-2(d) •••• (Settled) ••• 43.00 

Total Settlement Penalties in Docket No. NORT 79-58-P •• $ 482.00 

Docket No. NORT 79-87-P 

Citation No. 322486 10/24/78 § 75.200 •••••• (Contested) •• $ 700.00 

Total Settlement and Contested Penalties in This Proceeding ••• $2,982.00 

ll 

(2) Respondent, as the operator of No. 4 Mine, is subject to the Act 

and to the mandatory safety and health standards promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) The parties' requests for approval of settlements are granted and 

the settlement agreements in Docket Nos. VA 79-41, VA 79-43 and NORT 79-58-P 

are approved. 

1/ On page 84 of the transcript, counsel for the Secretary stated that the 

total proposed settlement was $470; however, a mathematical error was made 

at that time, and is corrected in the tabulation above. 

1860 

. . 

. .. 
(B) Pursuant to the parties' settlement agreements and the bench decision rendered in tb~ p.r_oceeding in Docket No. NORT 79-87-P, respondent shall, 

within 30 days from the date of this decision, pay civil penalties totaling 

$2,982.00 as set forth in paragraph (1) above. 

Distribution: 

~ C. ~~ff,.~~ 

Administrative 

Richard c. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Sidney Salkin, Esq., and Covette Rooney, Attorney, Office of the 

Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 

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

Peggy-0 Coal Company, Inc., Attention: James Ball, President, P.O. 

Box 235, Vansant, VA 24656 (Certified Mail) 

1861 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 3 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control Nos. 

Petitioner 

v. WEVA 80-124 

Olga Mine 

46-01407-03042V 

OLGA COAL COMPANY, 

Appearances: 

Before: 

Respondent WEVA 80-125 

WEVA 80-126 

WEVA 80-127 

46-02437-03007V 

46-02437-03008 

46-02437-03009V 

Olga Preparation Plant 

WEVA 80-128 46-05319-03009V 

Road Fork No. 2 Mine 

DECISION 

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, 

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

Petitioner; 

James R. Haggerty, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 21, 1980, a hearing in the 

above-entitled proceeding was held on May 20, 1980, in Bluefield, 

West Virginia, under section 105(d) of the Federal Mine Safety and Health Act 

of 1977. 

Upon completion of introduction of evidence by the parties, I rendered 

the bench decision which is reproduced below (Tr. 141-154): 

The Petition for Assessment of Civil Penalty in Docket 

No. WEVA 80-124 was filed on January 25, 1980, and seeks to 

have a civil penalty assessed for an alleged violation of 

30 C.F.R. § 75.200. In any civil.penalty proceeding the 

issues are whether a violation of a mandatory health or 

safety standard occurred, and, if so, what civil penalty 

1862 
should be assessed, based on the six criteria set forth 

in section llO(i) of the Federal Mine Safety and Health 

Act of 1977 .--

The first matter to be considered in this proceeding 

insofar as the contested case is concerned, is whether a 

violation of section 75.200 occurred. 

CONTESTED CASE 

DOCKET NO. WEVA 80-124 

I shall make some findings of fact based on the evidence 

which I've heard today. Those findings will be set forth 

under enumerated paragraphs. 

1. On May 16, 1979, two coal mine inspectors went to 

Respondent's Olga Mine. At that time, those two inspectors, 

namely, James M. Oliver and Melvin L. Sperry, went to the 

six north section, and specifically to the No. 2 pillar 

split. 

2. After examining the conditions that they saw in the 

No. 3 pillar split, they jointly wrote Order No. 655146, 

dated May 16, 1979, alleging that respondent had violated its 

roof-control plan, and thereby had violated section 75.200, 

because the continuous-mining machine had proceeded for a 

distance of 35 feet so as to bring the controls of the 

continuous-mining machine beyond roof supports. 

3. Exhibit P-2 provides, in Paragraph 6, that "The 

operator shall not advance the controls of the miner inby the 

last row of bolts and additional bolting shall be done if 

necessary to keep the operator in compliance and breaker 

posts shall be extended to the last row of bolts during 

mining of wing lifts." 

4. The inspectors based the violation on measurements 

of the intitial cut of coal in the pillar, and of the-area 

off to the right of the bolted portion of the entry, as 

shown in Exhibits P-3 and P-5. The violation here is not 

the normal one which is encountered in this ·kind of situation, 

because the area of unsupported roof under which the operator 

of the continuous-mining machine proceeded was up the right 

rib of the pillar block. The inspectors based their conclusion that the operator of the continuous-mining machine had 

cut along the right rib in a straight direction, parallel to 

the right rib, on the fact that they saw ripper cutting marks, 

or bit marks, which were parallel to the right rib. They 

additionally made measurements beyond the last row of roof 

bolts to show that the last row of roof bolts was 17 feet 

outby the face of the cut of coal which had been mined. 

186.1 
5. Respondent presented as.witnesses, the superintendent 

of the mine and t_!!e~~perator of the continuous-mining machine 

on the evening- shift, which was the one involved in the violation cited in the inspectors' order. The operator of the 

continuous-mining machine testified that he did not go out 

from under supported roof in order to cut the coal, as it is 

depicted on Exhibit A. The operator of the continous-mining 

machine stated that he had inadvertently started cutting a 

wing off the initial split in the pillar, and had cut about 

one and maybe a little more of another shuttle car of coal 

when he realized that he had made a mistake. At that point, 

he backed up the continuous-mining machine and moved it inby 

that portion he had just cut, so as to begin cutting on the 

wing at a more inby point in this No. 3 pillar split. The 

operator stated that he had cut the coal out, as shown in the 

green area on Exhibit A, by the end of his shift, at which 

time the roof fall occurred. And he backed the continuousmining machine out of the No. 3 pillar split, and left the 

section. 

I think that those are the primary findingsI need to 

make. A question of whether a violation of section 75.200 

occurred must be based on the painful process of determining 

which of the various witnesses' testimony is the most 

credible. There are several considerations that must be made 

for me to find that a violation of section 75.200 occurred; 

and I shall explain them at this time. 

The operator of the continuous-mining machine was unable 

to explain satisfactorily why an operator with 4 years of 

experience would have failed to recognize that he had no need 

to start taking a wing of coal out of a block, midway in that 

block, when he was aware of the fact that a previous operator 

had cut through the left side of the pillar at an opening which 

should have alerted the operator that the first wing of coal 

to be cut would be in the same area to which he eventually 

went, and which is shown on Exhibit A in green. 

Another reason that I've elected to accept the inspectors' testimony as more credible than the operator's, is 

that the operator's Exhibit A does not purport to explain 

why the initial split had excess width, as compared with the 

red area, where the operator of the continuous-mining machine 

said he mistakingly made a cut. I cannot believe that the 

inspectors could have measured the distance from the rib to 

the last roof bolt on the left, in the four places shown on 

Exhibits P-3 and P-5, without having established that the 

right rib ran in a straight direction. 

1864 

:·:.• 
-Additionally, the operator of the continuous-mining 

machine made no statements concerning whether there were bit 

marks running-paraiiel-to the right rib or running diagonally 

as they should have run, if this red and green area shown 

on Exhibit A had been mined in a diagonal fashion, as is 

shown by the location of the continuous-mining machine on 

Exhibit A. 

Also, the inspectors measured the distance from the last 

roof bolt to the mqst inby area of the pillar split with their 

measuring tape and I do not believe they could have done that 

without having been aware of whether there was. a roof fall in 

the green area or not. As Ms. Kaufmann pointed out in her 

closing statement, either there was not a roof fall there, or 

it had been cleaned up before the inspectors arrived on the 

scene. 

There was no testimony by any expert to rebut the 

inspectors' claim that the cuts of the continuous-mining 

machine were parallel to the right rib. It is true that one 

of the inspectors believed that the make of the confinuousmining machine was a Joy machine, when in actuality it was a 

Lee Norse machine, but I did not hear anyone claim that the 

Lee Norse machine would fail to make any marks parallel to 

the rib, if the machine had been trammed while cutting in a 

straight inby path, from the beginning of the pillar to the 

last. portion that was cut by the continuous-mining machine. 

There has been some discussion by respondent's attorney 

as to the fact that Inspector Oliver seemed to think that this 

pillar block was only 35 feet long, whereas it appears to have 

been about 70 feet long. But I think that that is immaterial 

when it comes to a question of whether the continuous-mining 

machine was out from under permanent supports. 

In any event, Inspector Sperry was very specific in 

drawing Exhibit P-5, showing that ·he depicted the posts which 

were in the crosscut outby the No. 3 pillar; and he said he 

was positive that the drawing he has on Exhibit P-5 shows the 

outby area of the pillar. The drawing, which he made very 

carefully on Exhibit 5, does show all of the pillar which is 

involved in the citation described in Order No. 655146. 

For the reasons given above, I find that a violation of 

section 75.200 occurred when the controls of the continuousmining machine were advanced beyond permanent supports. 

Having found that a violation occurred, it is now necessary 

to consider the six criteria. At least three of the criteria 

may be given a general consideration, which will be applicable 

to the settled cases as well as the contested case. 

1865 
:The parties e_ntered into some stipulations about at 

least two of the criteria. It was stated that respondent 

is subject t-&- the- ju-ri-sdiction of the Act, the Commission, 

and the judges. It was also stipulated that the violation 

alleged in Order No. 655146 was abated in a normal good faith 

effort to achieve compliance. 

It was stipulated that as to the size of responde~t's 

business that it produces 530,342 tons of coal per year; and 

since respondent is an affiliate of Youngstown Sheet & Tube 

Company, it may be considered to be a large operator. To the 

extent that the size of the operator is considered in assessin~ 

a penalty, I find that the penalty should be in an upper range 

of magnitude. 

The former Board of Mine Operations Appeals has held in 

several cases that if respondent presents no financial data, 

it may be concluded that the payment of a penalty would not 

cause it to discontinue in business. Since no financial data 

were presented in this case, I find that payment of penalties 

would not cause respondent to discontinue in busines.s • . ----

As to the criterion of the history of previous violations, counsel for the Secretary of Labor has stated that she 

will mail to me a computer printout in the near future, and 

will send a copy of it to counsel for respondent. And if he 

does not notify me of any errors that he thinks exists in the 

computer printout, I shall subsequently add to the written 

decision, which is mailed to the parties, a consideration of 

the criterion of history of previous violations. 

A 21-page computer printout listing alleged violations 

for which respondent has already paid penalties was sent to 

me on May 24, 1980. That 21-page document is marked for 

identification as the Secretary of Labor's Exhibit P-6 in 

this proceeding and is received in evidence. Counsel for 

respondent has not notified me that he has found any errors 

in Exhibit P-6. Therefore, it will be used to evaluate the 

criterion of history of previous violations. 

Exhibit P-6 shows that respondent has previously violated 

section 75.200 on 52 occasions. Sixteen of the violations 

occurred in 1977, 28 occurred in 1978, and 8 violations had 

occurred in 1979 by May 9, 1979. Since roof falls still 

account for a large percentage of the injuries and deaths 

which occur each year in underground mines, I consider it to 

be a serious matter when an operator has a long list of violations of section 75.200, especially if the violations have an 

upward trend, as they do in this case, because there is an 

increase from 16 violations in 1977 to 28 in 1978. Therefore, 

1866 
the penalty otherwise assessable under the other five criteria 

for this violation9f_~ection 75.200 will be increased by $500 

under the criter,ion of history of previous violations. 

As to the criterion of gravity, there was considerable 

testimony by the inspectors to the effect that the roof conditions in the six north section were substandard, in that there 

was heaving of the bottom, and some cracking in the roof, and 

that going out from under the roof bolts would be a hazardous 

act for a person t~ make. Consequently, I find that the violation was serious. 

As to the criterion of negligence, the evidence does not 

show that the section foreman on the second shift was aware 

of the fact that the continuous-mining machine had been used 

in the fashion that it was. There is evidence that this 

particular split on the No. 3 pillar was something that was 

written up by the preshift examiner. And there's been some 

testimony that danger boards had been erected outby the 

pillar. The inspectors did not see the danger board, but it 

is alleged that the preshift examiner had put one~up. So, at 

least an effort had been made to alert people to the possibility that this was a dangerous area. Now, for that reason 

I find that there was not a large degree of negligence. 

Considering that respondent is a large operator, that 

payment of penalties will not cause respondent to discontinue 

in business, that there was a normal good faith effort to 

achieve rapid compliance, that the violation was serious, 

and that there was a low degree of negligence, a penalty of 

$1,000 would have been assessed, but as indicated above, the 

penalty of $1,000 will be increased by $500 to $1,500'because 

of respondent's adverse history of previous violations of 

section 75.200. 

APPROVAL OF SETTLEMENTS 

DOCKET NO. WEVA 80-125 

The violation here involved was an alleged violation of 

30 C.F.R. § 77.202, which prohibits the existence of coal-dust 

accumulations in dangerous amounts. Order No. 655348, issued 

May 30, 1979, cited a violation of section 77.202 because float 

coal dust was present on all four levels of the crusher building, ranging in depths of up to 18 inches. The motion for 

approval of settlements states that respondent has agreed to 

pay the full penalty of $800 proposed by the Assessment Office 

in this instance, because the facts show that possible ignition 

sources existed in the area of some of the accumulations. Some 

mitigating factors were that the accumulations existed on surface facilities where there was little danger that dust would 

1867 

1.-: 
accumulate in a hazardous amount, and that some steps were 

being taken to clean up the accumulations at the time the 

order was-written-: -Therefore, the violation was not as 

serious as it would have been if it had occurred underground, 

and respondent was not as negligent as it would have been if 

no steps to clean up the accumulations had been taken. 

I find that the Assessment Office determined an appropriate penalty, and that respondent's agreement to pay the 

full amount proposed by the Assessment Office should be 

approved. 

DOCKET NO. WEVA 80-126 

The single violation of section 103(f) of the Act 

involved in Docket No. WEVA 80-126 was alleged in Citation 

No. 654849, which stated that respondent failed to pay a 

miner who walked around with an inspector. The Assessment 

Office considered the violation to be nonserious, to be 

associated with ordinary negligence, and proposed a penalty 

of $114. Respondent has agreed to pay a redu~ed- penalty 

of $52. 

The motion for approval of settlement states that the 

reduced penalty is justified because respondent acted in good 

faith under its interpretation of section 103(f), namely 

that respondent was obligated to pay only one representative 

under the walkaround provisions of section 103(f) of the Act. 

I find that respondent's agreement to pay a reduced 

penalty of $52 should be approved, because respondent was not 

as negligent, in the circumstances, as the Assessment Office 

believed when it proposed a penalty of $114 based primarily 

on attributing 10 penalty points under. the criterion of 

negligence pursuant to 30 C.F.R. § 100.3. 

DOCKET NO. WEVA 80-127 

Three violations of section 77.202 are involved in 

Docket No. WEVA 80-127. The first violation of section 

77.202 ·was alleged in Citation No. 654835, because the 

inspector asserted that float coal dust had accumulated on 

all three levels of the crusher building in depths of up to 

3 inches. The motion for approval of settlement says that 

the Assessment Office's proposed penalty of $500 is excessive, and that respondent's agreement to pay $375 is justified, because respondent has a clean-up plan under which the 

1868 
crusher building is washed down every three shifts, which had 

the effect of. making the crusher building damp, and reducing 

the likelihood·of---fire or explosion. Additionally, the accumulations were less than 3 inches in depth, except in a few 

locations. It is said that these facts reduced the probability 

of fire, and also the degree of negligence. 

The second violation of section 77.202 was cited in Order 

No. 654837, which alleged existence of float coal dust up to 

6 inches in depth in the skip hoist facility. Respondent has 

agreed to pay a penalty of $450 instead of the penalty of $600 

proposed by the Assessment Office. The motion for approval of 

settlement states that a reduced penalty is justified because 

the accumulations were less than 1 inch in all but a few locations, that there were no miners in the area described in the 

order, and that there were no ignition sources in the area. 

The third violation of section 77.202 was cited in Order 

No. 654847 which alleged that float coal dust up to 1 inch 

in depth had accumulated at several places in the man hoist 

facility. The motion for approval of settlement st~_tes that 

a reduced penalty of $600 is warranted instead of the penalty 

of $800 proposed by the Assessment Office, because further 

investigation has indicated that the accumulations were less 

than 1 inch in depth in nearly all instances. The motion 

avers that that fact warrants a conclusion that respondent 

was μot as negligent, and that the violation was not as 

serious as it had been considered to be by the Assessment 

Office. 

I have found in prior cases that inspectors do not consider accumulations on the surface as serious as underground 

accumulations. Therefore, I find that satisfactory reasons 

have been given for accepting respondent's offer to pay 

reduced penalties for the three violations of section 77.202 

involved in Docket No. WEVA 80-127. 

DOCKET NO. WEVA 80-128 

Two violations are involved in Docket No. WEVA 80-128. 

The first violation was of section 75.200, alleged in Citation No. 655224, which stated that respondent had failed to 

follow the provisions of its roof-control plan, because no 

temporary supports had been installed in the face area of the 

Nos. 1 and 2 entries after completion of the mining cycle. 

The motion for approval of settlement states that the No. 1 

entry had been driven 19 feet inby permanent supports, and 

that the No. 2 entry had been driven 21 feet inby permanent 

supports, and that there were cracks in the roof. Since the 

1869 
violation was serious and involved a high degree of negligence, the_~o~ion states that respondent has appropriately 

agreed to pay the full penalty of $1,000 proposed by the 

Assessment Off ice. 

The second violation in this docket was cited in Order 

No. 655225 which stated that respondent had violated section 

75.326 because belt haulage air was being used to ventilate 

the active working section. The motion for approval of settlement states that respondent's offer to pay a reduced penalty of 

$500 instead of the $1,000 penalty proposed by the Assessment 

Office is justified because, although belt haulage air was 

used to ventilate the working face, the air had reached the 

working face because respondent had been forced to remove a 

permanent stopping in order to bring in supplies needed for 

installing a new conveyor belt. The belt could not have been 

installed without removing the stopping. 

At the time the order was written, the conveyor belt was 

not being operated. The motion states that the afo~ementioned 

facts show that the violation was not as seriou·s--aD.d did not 

involve as much negligence as the Assessment Office believed 

to exist when it proposed the penalty of $1,000. 

I find adequate reasons have been given to approve 

respondent's agreement to pay $1,000 and $500, respectively, 

for the violations of sections 75.200 and 75.326 involved in 

Docket No. WEVA 80-128. 

Summary of Assessments 

Based on all the evidence of record and the aforesaid findings of fact, 

or the parties' settlement agreement, the following civil penalties should 

be assessed: 

Docket No. WEVA 80-124 

Order No. 655146 5/16/79 § 75.200 ••••••• (Contested)~ ••••• $ 1,500.00 

Settlement Agreements 

Docket No. WEVA 80-125 

Order No. 655348 5/30/79 § 77.202 •••••••••••••••••••••••• $ 800.00 

Docket No. WEVA 80-126 

Citation No. 654849 4/23/79 § 103(f) ••••••••••••••••••••• $ 52.00 

Docket No. WEVA 80-127 

Citation No. 654835 4/3/79 § 77.202 •••••••••••••••••••••• $ 375.00 

1870·· 
Orde_r No. 654837 4/4/79 § 77 .202 ••••••••••••••••••••••••• $ 450.00 

Order No. 6_54847 4/17/79 § 77.202 .............................. $__ 6_00_._o_o 

Total Penalties in Docket No. _WEVA 80-127 ••••••••••• $ 1,425.00 

Docket No. WEVA 80-128 

Citation No. 655224 6/22/79 § 75.200 ••••••••••••••••••••• $ 1,000.00 

Order No. 655225 6/22/79 § 75.326 •••••••••••••••••••••••• $ 500.00 

Total Penalties in Docket No. WEVA 80-128 ••••••••••• $ 1,500.00 

Total Settlement and Contested Penalties in 

This Proceeding•••••••••••••••••••••••••••••••••••$ 5,277.00 

WHEREFORE, it is ordered: 

(A) The parties' requests for approval of settlement are granted and 

the settlement agreements submitted in this proceeding in Docket Nos. 

WEVA 80-125, WEVA 80-126, WEVA 80-127, and WEVA 80-128 are approved. 

(B) Pursuant to the parties' settlement agreements and the bench 

decision rendered in the proceeding in Docket No. WEVA 80-124, respondent 

shall, within 30 days from the date of this decision, pay civil penalties 

totaling $5,277.00 as set forth in the paragraph under Summary of Assessments above. 

Distribution: 

XI~ , QiJ-G- -'- . ~ 1"%)·_[1_.r.:c r fir 

Richard c. Steffey~ ~ Administrative Law Judge 

(Phone: 703-756-6225) 

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S. 

Department of Labor, Room 14480-Gateway Building, 

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

James R. Haggerty, Esq., Attorney for Olga Coal Company, 

3 ~ateway Center, Pittsburgh, PA 15263 (Certified Mail) 

1871 

,-
-FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2, 4 JUL 1900 

SECRJ;:TARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

AMHERST COAL COMPANY, 

Petitioner 

Respondent 

Docket No. WEVA 79~222 

A/O No. 46-01367-03024 V 

Paragon Mine 

Docket No. WEVA 79-223 

A/O No. 46-03773-03012 V 

MacGregor No. 8 Mine 

DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, Region III, 

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

Petitioner; 

Edward I. Eiland, Esq., Logan, West Virginia, for Respondent. 

Before: Judge Stewart 

The above-captioned cases are civil penalty proceedings brought pursuant 

to section llO(a) 1/ of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act),-30 U.S.C. § 820(a). The hearing in these matters was held 

in Charleston, West Virginia, on January 16, 1980. At the conclusion of the 

hearing, the parties waived their right to file posthearing briefs. 

l_/ Section llO(a) of the Act reads as follows: 

"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. Each occurrence of 

a violation of a mandatory health or safety standard may constitute a 

separate offense." 

1872 
Docket No. WEVA 79-223 

On December 7, 1978, inspector Henry J. Keith issued Order No. 23000 

pursuant to section 104(d)(l) 2/ of the Act. He cited 30 C.F.R. § 75.1307 1/ 

and described the relevant condition or practice as follows: 

Explosives were not properly stored in the 10 road 008 

section in that about 24 sticks of powder were lying on the 

floor of the No. 2 entry near a battery charger that was 

energized. Said explosive was not kept in a container constructed for this purpose. The container the explosives were 

in also was not closed. This was located in the above area. 

The inspector found that the operator demonstrated an unwarrantable 

failure to comply with the mandatory standard. He noted that the operator 

had a responsibility to conduct an onshift examination in the section. He 

based his finding of unwarrantable failure on his belief that the condition 

was obvious and would have been observed in the course of such inspection. 

2/ Section 104(d)(l) of the Act reads as follows: - ----

"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute to the cause 

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

such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act. 

"If, during the same inspection or any subsequent inspection of such 

mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health 

or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an 

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

such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such violation has been 

abated." 

1/ 30 C.F.R. § 75.1307 reads as follows: 

"Explosives and detonators stored in the working places shall be kept in 

separate closed containers which shall be located out of the line of blast 

and not less than 50 feet from the working face and 15 feet from any pipeline, 

powerline, rail, or conveyor, except that, if kept in niches in the rib, the 

distance from any pipeline, powerline, rail, or conveyor shall be at least 

5 feet. Such explosives and detonators, when stored, shall be separated by a 

distance of at least 5 feet." 

1873 
The operator abated. the condition by removing the explosives to the 

mouth of the section. Jn_~he opinion of the inspector, a normal degree of 

good faith was shown.by the operator in abatement. 

The parties were in agreement with respect to all statutory criteria to 

be considered in determining the amount of civil penalty to be assessed except 

for the issue of negligence. At the conclusion of Petitioner's presentation 

of evidence, the Administrative Law Judge made a finding from the bench with 

respect to the negligence of the operator in permitting the existence of the 

condition. This ruling was as follows: 

Let the record show that there have been discussions 

between counsel and the Judge and, in response to the question as to whether or not there was negligence, I find that 

the record at this point, as adduced by evidence of the 

Government, has failed to show the length of time that the 

explosives were in the area in which they were sighted by the 

inspector and it has not been shown that anyone connected with 

management was either in that area or should have been in that 

area at the time when the explosives were there. Therefore, 

it has not been shown that the company knew or should have 

known of the existence of the explosives where they were found 

by the inspector. Therefore, I find that there was no negligence by the operator. 

As a result of this finding regarding negligence, and additional discussions between counsel, the parties agreed that the penalty in this case 

should be reduced to $200. A penalty of $1,500 had been proposed· by MSHA's 

Office of Assessments. In support of the settlement agreement, counsel for 

Petitioner asserted the following: 

The parties have agreed that, although there was no 

negligence involved, this was a moderately serious situation 

warranting more than a merely nominal penalty. The parties 

feel that a penalty of $200 adequately reflects the absence 

of negligence and the seriousness of the violation. The 

operator's past history in regard to these types of violations is insubstantial. * * * The parties have reached a 

stipulation as to the size of the operator and it is agreed 

that the 1978 production figure of 1,377,448 tons is representative of the operator's average annual tonnage and that 

places this operator in the size of a medium sized operator. 

In light of these criteria the parties move that the proposed 

settlement of $200 for this violation be approved. 

The settlement proposed by the parties was approved by the Administrative Law Judge on the record. This approval is hereby AFFIRMED. 

1874 
Docket No. WEVA 79-222 

On December 14, 1978, MSHA nspector Keith issued Order of Withdrawal 

No. 23035 pursuant to section 104(d)(2) 4/ of the Act, citing a violation of 

30 C.F.R. § 75.200 2_/ for failure to comply with the miner's roof-control 

plan. 

The order of withdrawal noted that the area affected by this order was 

the No. 5 entry on the No. 4 unit, 027 section. The order, which was issued 

at 8:30 p.m., was terminated at 10 p.m., when "the entire area was temporarily supported and roof bolts were installed." 

The operator mined the No. 4 unit, 027 section, on a five-entry system. 

The method used to mine was such that coal was simultaneously cut, mined, and 

loaded. A bridge-haulage mechanism, consisting of three connected segments, 

was attached to a continuous miner. The bridging linked the miner directly 

to the belt line which was located in the No. 3 entry. 

The operator encountered adverse roof conditions in the No. 5 entry on 

December 5, 1978. The conditions began along the right r!_]>-of- the entry and 

!±._/ Section 104(d)(2) of the Act reads as follows: 

"If a withdrawal order with respect to any area in a coal or other mine 

has been issued pursuant to paragraph (1), a withdrawal order shall promptly 

be issued by an authorized representative of the Secretary who finds upon 

any sμbsequent inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar 

violations. Following an inspection of such mine which discloses no similar 

violation, the provisions of paragraph (1) shall again be applicable to that 

mine.'! 

~ 30 C.F.R. § 75.200 reads as follows: 

"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 ot~erwise controlled adequately to protect persons from falls of the roof or ribs. 

A roof control plan and revisions thereof suitable to the roof conditions 

and mining system of each coal mine and approved by the Secretary shall be 

adopted and set out in printed form on or before May 29, 1970. The plan 

shall show the type of support and spacing approved by the Secretary. Such 

plan shall be reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of 

support of roof or ribs. No person shall proceed beyond the last permanent 

support unless adequate temporary support is provided or unless such temporary support is not required under the approved roof control plan and the 

absence of such support will not pose a hazard to the miners. A copy of the 

plan shall be furnished to the Secretary or his authorized representative 

and shall be available to the miners and their representatives." 

1875 
extended across the face areas. As the continuous miner was removed from the 

face .area, a port.iot\_Of t-he--top fell. In so doing,· it knocked out timbers 

and pulled out roof bolts. Tests performed on the roof indicated that the 

roof's condition continued to deteriorate. Because of this, the roof-bolting 

crew was removed and three or more cribs were placed in the center of the 

entry. The most inby crib was 8 feet from the face. The area left without 

roof support extended approximately 8 feet from this crib and more than 

20 feet from rib to rib. A danger board was placed on the most outby crib 

and no one was permitted in the area. The operator did not permit entry of 

either machinery or employees into the area until after Order No. 23035 was 

issued. 

The No. 5 entry had already been driven the length of the pillar. The 

operator decided, therefore, to approach the area from the crosscut rather 

than subject its employees to the hazard presented by the adverse conditions 

in the No. 5 entry. The operator proceeded cautiously to mine the last open 

crosscut between entries No. 4 and No. 5 (hereinafter, the 4 right crosscut). 

Cuts were made to depths of 10 feet rather than to the usual 20-foot depth. 

Roof bolts of 8 to 9 feet in length with plates measuring 6 inches x 

16 inches were used, rather than the usual 3- or 4-foot b_olts and 6 inch- x 

6-inch plates. In addition, the roof-bolting cycle was-changed so as to 

afford the operator of the continuous miner greater protection. 

The operator holed through from the crosscut into the No. 5 entry during 

the day shift on December 14, 1978. The dimensions of this hole were 2 feet 

x 3 feet. By the end of the day shift, the roof in the 4 right crosscut had 

been bolted up to the face. No unusual roof problems had been encountered 

in the 4 right crosscut. 

James Cole, the section foreman in charge of the section during the 

second shift on December 14, 1978, was on the No. 4 unit at the time the 

inspector issued Order No. 23035. The 9- to 10-f oot cut which completed the 

breakthrough into the No. 5 entry had been made at approximately 6:30 p.m. 

The roof bolter was in the process of bolting this newly cut area when the 

inspector arrived. One row of bolts and four temporary posts had been 

installed. No miner or equipment had ventured under the unsupported or bad 

roof in the No. 5 entry. 

In the order of withdrawal, the inspector described the pertinent condition or practice as follows: 

The roof control plan was not being complied with in the 

No. 5 entry in that a side cut was made where a crosscut from 

No. 4 entry entered into the right rib of the No. 5 entry. An 

area 20 feet wide and eight feet in length approaching an 

installed crib was not temporarily or permanently supported 

and evidence indicates that machinery was permitted to work 

inby. See page 8, paragraph 11, (a) and (b) of the roof control plan. 

1876 
Although the inspector wrote on the order under "action to terminate" 

that mine management abated_tb_~ condition by supporting the entire area with 

roof bolts, Mr. Cole-testified that the inspector allowed work to continue 

after two safety jacks were set in the No. 5 entry, inby the right side of 

the 4 right crosscut. 

Paragraph 11 of the roof-control plan provides as follows: 

(a) Sidecuts shall be started only in areas that are supported with permanent roof supports. During development, 

except where old workings are involved, working places shall 

not be holed through into accessible areas that are not 

supported on 5-f oot maximum spacing lengthwise and crosswise 

to within 5 feet of the face. 

(b) When new openings are created and/or sidecuts are 

made, the newly exposed area shall be supported with temporary 

or permanent supports in accordance with the development plan, 

or a row of posts on 4-foot maximum spacing installed across 

the mouth of the opening before any machinery is permitted to 

work inby. 

The record establishes that the mining procedure utilized by the opera tor to cope with the roof problems in the No. 5 entry placed it in violation 

of paragraph 11, sections (a) and (b), of its roof-control plan. Although a 

sidecut was not started from the area in the No. 5 entry that was not supported with permanent roof supports, the operator holed through from the 

4 right crosscut into the No. 5 entry despite the absence of support in the 

No. 5 entry. That is, a working place was holed through into an accessible 

area that was not supported on a 5-f o~t maximum spacing lengthwise and crosswise to within 5 feet of the face, thereby violating paragraph 11, section 

(a). In completing the breakthrough from the 4 right crosscut, the operator 

violated paragraph 11, section (b), in that machinery was permitted to work 

inby roof which had not been supported with temporary or permanent supports 

in accordance with the development plan and no row of posts been placed 

across the mouth of the opening into the No. 5 entry. 

At the hearing, the tenor of Inspector Keith's account of the alleged 

violation conformed with that of Respondent's witnesses, but- it diverged 

significantly in matters of detail. Respondent called four witnesses to 

testify in its behalf at the hearing. Three of these four witnesses--Willard 

Bourne, James Cole, and Clarence Preston--were section foremen at the Paragon 

Mine during the time period material herein. The fourth, Ernest Marcum, was 

Respondent's safety inspector. These witnesses who directly participated in 

the mining process provided an accurate account of the events and conditions 

existing prior to the issuance of Order No. 23035. The inspector, whose 

recollection was faulty as to some details, had no direct knowledge of the 

sequence of events which led to the conditions but drew his conclusions 

regarding this sequence from observations of conditions which prevailed at 

the time he issued the order. Nevertheless, the inspector observed conditions 

1877 
which were in violation of the roof control plan and, even with the testimony 

of Respondent's.witnesses which is accepted as being accurate in detail, the 

record clearly esta151Isnesthe existence of the violation. 

The negligence of the operator in allowing the occurrence of this viola~ 

tion was slight. Although temporary support should have been provided in the 

unsupported area of the No. 5 entry before permanent support was placed in 

the area of the last cut, proper mining procedure had been otherwise followed 

by the operator. After being confronted with working top in the No. 5 entry 

on December 5, 1978, the operator proceeded with caution to make the best of 

the situation. · 

Although the negligence of the operation was not of the degree asserted 

by Pe~itioner based on the observations of the inspector, the gravity of the 

violation was substantial. The roof~bolting crew was at work adjacent to 

the area of unsupported and bad roof in the No. 5 entry. If the roof had 

started falling, the fall could have continued into the area in which the 

bolting crew was working. The type of injury to be expected in the event such 

an accident occurred would be a fatality or serious injury. 

The operator demonstrated a normal degree of good-·fa·iih in the abatement of this condition. 

The operator's history of prior paid violations from December 15, 1976, 

through December 14, 1978, at the Paragon Mine is as follows: Respondent's 

history of violations reflects a total of 153 prior paid violations in 1977 

and 212 prior paid violations in 1978. The number of prior paid violations 

of 30 ~.F.R. § 75.200 amounted to 4 in 1977 and 25 in 1978. 

The parties stipulated that penalties assessed herein will not adversely 

affect the operator's ability to continue in business. The parties also 

agreed that the 1978 production figure of 1,377,448 tons is representative 

of the operator's average annual tonnage and that the size of Respondent is 

that of a medium operator. 

Assessments 

In consideration of the findings of fact and conclus~ons of law contained .. 

in this decision, the following assessments are appropriate under the criteria 

of section 110 of the Act. 

Order No. 

23000 

23035 

1878 

Penalty 

$200 

$200 
ORDER 

It is hereby ORDERED that Respondent pay the sum of $400 within 30 days 

of the date of t~is decision. 

Issued: 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

Edward I. Eiland, Esq., Eiland & Bennett, Suite 508, National Bank 

Building, P. o. Box 899, Logan, WV 25601 (Certified ~ail) 

1879 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 5 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 80-155 

Petitioner A.O. No. 15-02709-03071V 

v. 

Camp No. 1 Mine 

PEABODY COAL COMPANY, 

Appea~ances: 

Before: 

Respondent Docket No. KENT 8_0~156 

A.O. No. 15-()Z0-69-03011 

Sinclair Strip Mine 

Docket No. KENT 80-157 

A.O. No. 15-05046-03058H 

Alston No. 3 UG Mine 

DECISIONS 

George Drumming, Jr., Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for petitioner; 

Thomas Gallagher, Esquire, St. Louis, Missouri, for 

respondent. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings were docketed for hearings in Evansville, 

Indiana, June 26, 1980, along with another proceeding involving the same parties. The parties made a proposal to settle these dockets without the need 

for an evidentiary hearing and they were afforded an opportunity to present 

their arguments in support of their proposed settlement on the record. 

These cases are civil penalty proceedings initiated by the petitioner 

against the respondent pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, through the filing of civil penalty proposals for a 

total of five alleged violations of certain mandatory safety standards promulgated pursuant to the Act. Respondent filed timely answers contesting 

the citations, requested hearings in Evansville, but as indicated above, the 

parties subsequently proposed to settle the cases. The citations, initial 

asse~sments, and the proposed settlement amounts are as follows: 

1880 

.... 
Docket No. KENT 80-155 concerns three citations. Citation No. 0798291 

concerns a violation of the mine roof-control plan and abatement was achieved 

within an hour after the issuance of the citation. The proposed settlement 

is for 100 percent of the initial proposed settlement. 

Citation No. 0798644 concerns an alleged accumulation of loose coal, 

rock, and some float coal dust along a belt and belt idlers. Respondent 

argued that its records reflected that during the third shift on the day 

before the citation issued, eight belt shovelers were working on the belt. 

On the day the citation issued, four belt shovelers were working. Thus, 

respondent argues that it was making a good faith effort to keep the belt 

clean of accumulations (Tr. 8). Abatement was achieved the same day the 

citation issued by cleaning and rock dusting the belt and respondent 

exercised good faith compliance (Tr. 7). 

Citation No. 0798285 concerns a water sprinkler system_:vhich provided 

protection for only 23 feet of a belt conveyor drive. However, respondent 

pointed out that section 75.1101-7(b) is intended to provide fire protection 

over the belt drive which normally is 35 to 40 feet in length. In this case, 

the belt drive being used on the day of the inspection was a portable drive 

approximately 18 feet long. Consequently, while the existing water spray 

system afforded protection for only 23 feet it did in fact extend over the 

18-foot portable belt drive and afforded fire protection (Tr. 8, 11). 

In addition to the f?regoing, petiHona,r .asserted that respondent is a 

large operator, that its prior mine history of violations is not excessive 

for an operation of its size, and that each citation here in question 

resulted from ordinary negligence. While the conditions.cited were serious, 

1881 
respondent exhibited good faith abatement and the penalties agreed to will 

not adversely aff_ec~ __ r.eS-pon-dent' s ability to continue in business. 

Docket No. KENT 80-156 concerns an alleged violation of section 77.807 

for failure to adequately protect a drill trailing cable operating at the pit 

high wall from being run over by mobile equipment. Although respondent 

recognizes that section 77.807 deals with high voltage transmission cables, 

while section 77.604, which was not cited, specifically·covers trailing · 

cables, it nonetheless agreed to pay the full assessment of $180 and it 

did so because it believes that MSHA could establish the fact of violation, 

that it could amend its pleadings to cite the more appropriate section 

77.604·, and respondent candidly conceded that it was aware of the specific 

section it had violated and would not be prejudiced by any amendment to the 

pleadings (Tr. 15-19). 

Petitioner asserted that the inspector who issued the citation was 

available to testify regarding the citation and that he would testify there 

is not very much difference in a trailing cable and a high-voltage cable 

(Tr. 16). Petitioner also asserted that the violation was serious, that 

it resulted from ordinary negligence, and was abated in good faith. Further, 

petitioner asserted that respondent's.mining operations.are large, that the 

penalty will not adversely affect its ability to remain in business, and 

that the previous history of citations at the mine is not excessive (Tr. 14). 

Docket No. KENT 80-157 concerns an alleged accumulation of loose coal 

in a belt entry, and float coal dust on the mine floor and belt-control 

box (Tr. 20). Petitioner again asserted that the mine operation is large, 

that the previous history of violations at the mine site in question was 

not excessive. The conditions cited were serious, resulted from ordinary 

negligence, and payment of the proposed settlement amount will not adversely 

affect respondent's ability to remain in business (Tr. 20). 

With regard to the circumstances surrounding the cited conditions, 

respondent asserted that had t.he case proceeded to hearing, it would present 

the testimony of the union belt walker who walked the area prior to th.e 

inspector and observed nothing of consequences, and particularly no imminent 

danger. Further, the mine manager would dispute the inspector's measurements 

concerning the accumulations and would also testify that ~he cited coal dust 

was in fact dust from rock which was being transported on the belt. The area 

of the alleged accumulation was approximately 12 inches high and 8 feet long, 

and not 14 feet long as described by the inspector (Tr. 19-24). 

Petitioner agreed that the conditions were abated in good faith and 

that the loose coal was apparently loaded out immediately (Tr. 25, 29). 

CONCLUSION 

After careful review and consideration of the arguments presented 

by the parties in support of the proposed settlement disposition of these 

cases, I find that they are reasonable and in the public interest and they 

1882 
are appr.oved. The total settlement amount of $4,180 for the five contested 

citations is reasonable considering all Qf the circumstances presented in 

these cases. 

O~ER 

Respondent IS O~ERED to pay civil penalties in the amounts indicated 

above, totaling $4,180, within thirty (30) days of the date of these 

decisions. Upon receipt of payment by the petitioner, these cases are 

dismissed. 

Distribution: 

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Thomas R. Gallagher, Esq., P.O. Box 235, St. Louis, MO 63166 (Certified 

Mail) 

1883 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 2 5 Jut 1~ao 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

CLIMAX MOLYBDENUM COMPANY, ) 

) 

Respondent. ) 

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

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-192-M 

MSHA CASE NO. 05-02337-05005 

DOCKET NO. WEST 79-305-M 

MSHA CASE NO. 05-02337-05009 

MINE: CLIMAX MILL AND CRUSHERS 

DECISION 

APPEARANCES: 

Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh, 

Regional Solicitor, United States Department of Labor, Kansas. City, MO. 

for the Petitioner, 

Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado 

for the Respondent. 

Before: Judge John J. Morris 

WEST 79-192-M 

Citation 331477 

Petitioner, the Secretary of Labor, on behalf of the Mine Safety 

and Health Administration (MSHA), charges respondent, Climax Molybdenum 

Company, failed to provide handrails for the protection of its employees. 

MSHA asserts Climax thereby violated 30 CFR 57.11-2, 1 

a regulation 

promulgated under the statutory authority of the Federal Mine Health and 

Safety Act of 1969 (amended 1977), 30 u.s.c. § 801 et seq. 

11 The cited standard reads as follows: 

57.12-30 Mandatory. Crossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial 

construction, provided with handrails, and maintained 

in good condition. Where necessary, toeboards shall 

. be provided. 

1884 
ISSUE 

- . - -- The issue is whether Climax violated the standards. 

FINDINGS OF FACT 

The evidence is uncontroverted. I find the following facts to be 

credible. 

1. In the Climax Mill, there was an unguarded elevated walkway 30 feet 

in length (Tr 6 - 7, 16, R1). 

2. The walkway, five feet above the concrete, was 12 to 14 inches wide 

(Tr 6 - 9). 

3. A worker positioned himself on the planks in order to rotate the 

pipe every three years. According to maintenance records, the pipe had not 

been rotated in six years (Tr 24·). 

4. In order to move the 30 inch pipe, it is necessary to remove the 

handrails. 

5. No worker would be on the walkway other than to change, rotate, or 

remove the pipe (Tr 25). 

6. When the pipe is changed, rotated, or removed, workers tie off with 

safety lines (Tr 25). 

DISCUSSION 

Climax contends that the cited area is not a walkway as defined in 30 

c.F.R. 57.11-2. The basis for the argument is that the 2 x 12 planks do not 

lead to anything other than a blank walk. In addition, a worker must cross 

over the 30 inch pipe to reach the area. 

1885 
I reject Climax's argument. MSHA defines tunnelway but not a 

walkway. Webster ~-indicates one definition of a walkway is as follows: 

A passageway in a place of employment (as a factory 

or restaurant) designed to be walked on by the employees 

in the performance of their duties. 

Climax's employees use this area to gain access to the pipe. It 

accordingly constitutes a walkway. 

The evidence, however, establishes that to perform their duties the 

handrails must be removed. The area is not otherwise used by workers. 

These facts establish impossibility of compliance with the regulation. 

While the Commission has not addressed this defense, it is the writer's 

view that it is. an affirmative defense. Respondent m~_i:;t--show that 

compliance is functionally impossible. Further~ alternative effective 

protection must be used to protect the workers. Here the Climax workers 

tied off when using the walkway. The facts establish the defense of 

impossibility of performance. OSHA Review Commission cases on this 

defense are Everhart Steel Const~uction Company, OSHA Docket No. 3217 

(April, 1975); Hughes Brothers, Inc., No. 12523 (July 1978); Julius Nasso 

Concrete Corporation, et. al. No. 16012 (December 1977). 

Climax has established impossibility of compliance and I therefore 

conclude that Citation 331477 should be vacated. 

SETTLEMENTS 

During the hearing, Climax moved to withdraw its notice of contest as to 

the four remaining citations in this case. Petitioner does not object and 

pursuant to Commission Rule 2700.11 the ~otions should be granted. 

~/ Webster's Third New International Dictionary, unabridged, 1976. 

1886 
WEST 79-305-M 

Citation 331860 

MSHA in this penalty proceedings charges Climax failed to provide 

handrails for a storage area thereby violating 30 C.F.R. 57.11-2. 3 

The evidence is uncontroverted and I find the following facts to be 

credible. 

7. A flat roof shed was located inside a larger building (Tr 31-44). 

8. The 10 foot high shed was 7 feet deep at the top; it ~ad no 

handrails (Tr 31, 32, 42, G1). 

9. It was 7 feet beneath the roof of the larger building at the front 

of the shed angling to zero feet at the back (Tr 41-43;--Gi, R2, R4). 

10. At the time of the inspection there were empty cardboard boxes a 

foot from the edge of the roof of the shed (Tr. 36, 38, 40). 

DISCUSSION 

To establish a prima facie violation of a standard, petitioner must 

establish two things. First, that the described factual situation falls 

within the terms of the standard. Second, that there were one or more 

employees who were exposed to the hazard or who had access to the hazardous 

condition. MSHA's proof of the first category fails. The top of the shed 

is not one of the areas described in the standard. It is not a crossover., 

an elevated walkway, an elevated ramp, nor a stairway. 

It follows that Citation No. 331860 should be vacated. 

~./ Note 1. 

1887 
SETTLEMENT 

During the hea:r;±ng,-cTimax moved to withdraw its notice of contest as to 

Citation 332562. Petitioner does not object. Pursuant to Commission Rule 

2700.11, the motion should be granted. 4 

CONCLUoIONS OF LAW 

CASE WEST 79-192-M 

1. Respondent established the defense of impossibility of compliance 

with 30 c.F.R. 57.11-2 (Facts 1 - 6). 

2. Citation No. 371477 and the proposed penalty therefor should be 

vacated. 

3. On respondent's motions to withdraw the following citations and 

their respective proposed penalties should be affirmed: 

Citation Numbers 329264, 329265, 329268, 329273 

CASE WEST 79-305-M 

4. Respondent did not violate 30 C.F.R. 57.11-2 and Citation 331860 

should be vacated together with proposed penalty. 

5. On respondent's motion, Citation No. 332562 and the proposed penalty 

should be affirmed. 

Based on the foregoing findings of fact and conclusions of law, I enter 

the following: 

ORDER 

CASE WEST 79-192-M 

Citation No. 331477 and all proposed penalties therefor are vacated. 

y The motion to vacate appears on pages 42 - 43 in the case involving 

the parties. The caption is noted as Docket WEST 79-303-M, WEST 

79-304-M, WEST 79-306-M. 

1888 
Based on the foregoing findings of fact and conclusions of law, I 

enter· the following: 

ORDER 

CASE WEST 79-192-M 

Citation No. 331477 and all proposed penalties therefor are vacated. 

Citations No. 329264, 329265, 329268, and 329273 and the proposed 

penalties therefor are affirmed. 

CASE WEST 79-305-M 

Citation No. 331860 and the proposed penalty therefor are vacated. 

Citation No. 332562 and the proposed penalty therefor are affirmed. 

' 

Law Judge 

Distribution: 

Robert Bass, Esq., Eliehue Brunson, Esq., Office of the Solicitor, 

United States Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, Colorado 80294 

Michael Hackett, Esq., Richard w. Manning, Esq., Climax Molybdenum 

Company, 13949 West Colfax Avenue, Golden, Colorado 80401 

John R. Tadlock, Esq., Oil, Chemical, and Atomic Worke-rs International 

Union,· 1636 Champa Street, Denver, Colorado 80461 

Mr. David A. Jones, Jr., Oil, Chemical, and Atomic Workers International 

Union, P. o. Box 949, Leadville, Colorado 80461 

Mr. Edwin Matheson, International Brotherhood of Electrical Workers, 

Local No. 1823, P. o. Box 102, Minturn, Colorado 81645 

1889 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 5 JUL 1990 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY ANU HEALTH 

ADMINISTRATION (MSHA), Docket Nos. BARB 77-266-P 

Petitioner BARB 76X465-P 

v. 

No. 4 Mine 

JIM WALTER RESOURCES, INC., Brookwood, Tuscaloosa County, 

Alabama 

COWIN AND COMPANY, INC., 

Appearances: 

Before: 

Respondents 

DECISIONS 

J. Philip Smith, Trial Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the petitioner; 

Robert w. Pollard, Esq., Birmingham, Alabama, for the 

respondent, Jim Walter Resources, Inc.; 

William H. Howe, Esq,.; Washington, D.c., for the respondent, 

Cowin and Company, Inc. 

Judge Koutras 

Statement of .the Proceedings 

These proceedings are consoli~ated civil penalty proceedings filed 

under sections 109(a) (1) and 109(c), of the Federal Coal--Mine Health and 

Safety Act of 1969, 30 u.s.c. §§ 819(a)(l) and (c), charging the respondents with an alleged violation of mandatory safety standard 30 C.F.R. 

§ 77.1903(b), for failure to use certain ANSI standards as a guide during 

shaft construction. The petitions for assessment of civil penalties filed 

against the respondents seek civil penalty assessments for the alleged violation which was cited in a section 104(b) notice of violation issued by 

MSHA mine inspector Robert K. Kuykendall on June 16, 1975. The notice 

issued after an investigation of a fatal accident which occurred on June 9, 

1975, at the production shaft being constructed by respondent Cowin and 

Company at respondent Jim Walter Resources, Inc., No. 4 Mine, located at 

Brookwood, Tuscaloosa County, Alabama. (Jim Walter Resources, Inc., was 

formerly known as U.S. Pipe.) 

On January 19, 1976, MSHA filed petitions for assessment of civil penalty, pursuant to section 109(c) of the 1969 Act, against two individual 

1890 
employees of Cowi~ and Company: Earl Hosmer (BARB 76-211-P) and James Hosmer 

(BARB 76-212-P). Each of these individual respondents moved for dismissal on 

the ground that the-uriderlyi~g notice was invalid since it had been improperly 

issued to Cowin and Company, an independent contractor. By order dated 

April 20, 1976, MSHA was allowed to withdraw the petitions without prejudice • . On July 20, 1976, MSHA issued a modified notice, naming Jim Walter 

Resources as the operator instead of Cowin and Company. Then, on August 2, 

1976, MSHA again filed petitions for assessment of civil penalty pursuant 

to section 109(c), this time against Cowin and Company, Earl Hosmer (BARB 

76X466-P and James Hosmer (BARB 76X467-P). More than a year later? on 

July 13, 1977, MSHA filed a petition for assessment of civil penalty, pursuant to section 109(a) of the 1969 Act, against Jim Walter Resources (BARB 

77-266-P). 

By order dated December 20, 1977, all four cases were consolidated for 

hearing. Subsequently, the two individual respondents who were employees 

of Cowin paid penalties agreed upon with the Office of Assessments, and 

were dismissed by me as parties on May 19, 1978. 

Jim Walter Resources remains as a respondent, against-which penalties 

are sought pursuant to section 109(a) of the 1969 Act. Cowin remains as a 

respondent, under MSHA's theory that as a corporation and independent construction contractor, Cowin may be penalized under section 109(c) of the 

1969 Act for knowingly authorizing, ordering, or carrying out a violation of 

the Act charged to Cowin's coal mine operator customer, Jim Walter Resources. 

After several continuances at the request of the parties, he~rings were 

held at Birmingham, Alabama, on May 16 and 17, 1978, and the parties appeared 

and were represented by counsel. Posthearing proposed findings and conclusions, with supporting briefs, were filed by the parties, and on October 19, 

1978, I rendered decisions wherein I vacated the citation and dismissed the 

cases. Thereafter, on November 21, 1979, the Commission reversed my decisions and remanded the cases to me for further adjudication in accordance 

with the remand order. Subsequent to the remand, respondents filed an appeal 

in the U.S. District Court of Appeals for the District of Columbia Circuit 

seeking review of the Commission's decision reversing my decisions. By order 

of the court on January 30, 1980, the appeal was voluntarily dismissed without prejudice pursuant to Rule 42(b), F.R. App. P., and the cases were 

redocketed pursuant to the original Commission remand and are now before me 

for further adjudication. 

The basis for my original vacation of the notice of violation issued in 

these proceedings was my belief that by failing to apprise the respondents 

of the specific ANSI standards allegedly not used as a guide, MSHA deprived 

the respondents of any reasonable opportunity to know the specific charges 

against them and deprived the respondents of a full and fair opportunity to 

defend said charges. As pointed out by me at page 37 of my October 19, 1978, 

decision: 

1891 
Forcing an operator to forage among the detailed, 

technical, a~~ I _migh_t.:__t!dd, somewhat confusing standards 

which have not been revised for some 18 years, to ascertain 

precisely what he is being charged with is basically unfair, 

particularly in a case where an operator is charged under 

section 109(c) with a knowing violation. 

And, at page 41: 

(W]here a respondent is charged with a knowing violation, 

specificity should be the touchstone of any notice issued to 

an operator charging him with a violation. 

In order to determine the issues which remain for trial and to determine 

a schedule for any additional hearings, an informal conference was held in 

my office on February 12, 1980, and counsel for petitioner and Cowin appeared 

and participated therein. Al.though notified of the conference, counsel for 

respondent Jim Walter Resources, Inc., did not appear, nor did he participate. 

Subsequently, on February 13, 1980, I issued an order inviting all parties to 

file any additional pleadings or arguments so as to bring this matter to finality. In response to that order, the parties filed the·foliowing pleadings. 

February 21, 1980 

Petitioner filed a motion for leave to amend its proposals for as.sessment 

of civ~l penalties to charge respondent Cowin as an operator of the mine pursuant to section 109(a) of the 1969 Act, or in the alternative, as a statutory agent of respondent Jim Walter Resources, Inc., pursuant to section 

109(c) of the Act. In support of its motion, petitioner asserted that the 

proposed amendment merely changes the charges. as to the legal capacity under 

which Cowin committed the alleged violation, and if granted, would leave 

respondent Jim Walter Resources, Inc., charged in Docket BARB 77-266-P as the 

owner-operator of the mine pursuant to section 109(a), and respondent Cowin 

in Docket BARB 76X465-P as an operator of the mine pursuant to section 109(a), 

or, in the alternative, as a statutory agent of corporate operator Jim Walter 

Resources, Inc., pursuant to section 109(c). 

March 6, 1980 

Respondent Cowin filed a motion to dismiss the proposal for assessment 

of civil penalty against it on the ground that, as an independent contractor, 

it cannot be charged as an agent of corporate operator Jim Walter Resources, 

Inc., under section 109(c), and in support of its motion, Cowin restated by 

reference its previous arguments advanced in pages 11 through 16 of its posthearing brief previously filed in these proceedings, as well as the recent 

Fourth Circuit decision in Cowin and Company, Inc. v. Federal Mine Safety 

and Health Review Commisson, et al., No. 78-1825, December 28, 1980. 

1892 
March 7, 1980 

Petitioner filed an opposition to Cowin's motion to dismiss, and in support thereof, relied on its previously filed posthearing brief (p. 15), and 

the points and authorities set forth in its memorandum in support of its 

motion to amend filed February 21, 1980. 

March 17, 1980 

Respondent Jim Walter Resources, Inc., filed an opposition to petitioner's motion to amend its proposals for assessment of civil penalty, 

seeking to name Cowin as an operator pursuant to section 109(a) of·the 1969 

Act. In support of its opposition, respondent Jim Walter Resources, Inc., 

argued that the Fourth Circuit decision is binding in this case, that the 

Commission's remand granted no authority for MSHA to seek an amendment of 

its pleadings, and that the granting of the motion to name Cowin as an 

operator presents a new theory of "Dual operator's [sic] for one mine." 

Respondent Jim Walter Resources asserted that there can be but one operator of the mine, and if Cowin is found to be the operator of the mine, 

Jim Walter Resources, Inc., must be dismissed from the case. 

On April 1, 1980, I issued an order ruling on the aforesaid motions 

filed by the parties, and they are as follows: 

1. Jim Walter's motion that it be dismissed as a partyrespondent was DENIED. 

2. Relying on the Fourth Circuit decision noted above, 

I GRANTED Cowin's motion to dismiss it as section 109(c) 

party-respondent and accepted the argument that it may not be 

charged as a statutory agent of Jim Walter. 

3. Cowin's motion to be dismissed as a party-respondent 

under section 109(a) was DENIED. 

4. Petitioner's motion to amend its pleadings to name 

Cowin as a section 109(a) party-respondent was GRANTED, and 

petitioner's alternative motion to name Cowin as a statutory 

agency of Jim Walter under section 109(c) was DENIED. 

In addition to the aforesaid rulings, the parties were directed to 

identify any issues remaining for adjudication by me in accordance with the 

remand, and were afforded an opportunity to request any additional hearings 

or conferences, including the submission of any additional argtunents in support of their respective positions. Thereafter, on April 7, 1980, respondent 

Cowin requested that I certify for interolocutory review by the Commission 

pursuant to Commission Rule 74, 29 C.F.'R. § 2700.74(a), a portion of my 

April 1, 1980, order denying its motion to be dismissed as a party-respondent 

in these proceedings. I denied the request for certification by order issued 

April 24, 1980. Subsequently, by petition filed with the Commission on Ma:y 5, 

1893 
1980, Cowin sought interlocutory review by the Commi·sson of my order denying 

its request for certLfication, and on May 12, 1980, the Commission denied 

Cowin's petition. 

Issues Presented 

In its original decisions of November 21, 1979, reversing and,remanding 

these cases to me, the Commission stated as follows: 

We accordingly reverse and remand this case for further 

proceedings. In so doing we note that while numerous standards and regulations have been promulgated in implementation 

of the 1969 Act, a civil penalty sanction is authorized under 

section 109(a) only for a violation of a mandatory standard 

or other provisions of the Act. In addition to the other 

issues raised, in remanding we instruct the judge to address 

the threshhold question of whether 30 CFR § 77.1903(b) is a 

mandatory safety standard for which a civil penalty may be 

assessed or whether the regulation is merely advisory. 

On May 23, 1980, in response to my order of April 1, 1980, directing 

the parties to identify the issues remaining for adjudication on remand, 

respondent Cowin filed the following statement of issues: 

(a) Whether 30 CFR § 77.1903(b) is a mandatory safety 

standard for which a civil penalty may be assessed or whether 

the regulation is merely advisory? 

(b) Whether the Secretary has bypassed applicable MSHA 

regulations and prejudiced Cowin by charging it as an operator 

at the administrative hearing stage, thereby denying Cowin 

access to MSHA's penalty assessment procedures? 

(c) If 30 CFR § 77.1903(b) is a mandatory safety standard, was there a violation of that standard, as alleged by 

petitioner? 

(d) If a violation occurred, what is the amount of the 

civil penalty which should be assessed? 

On May 21, 1980, petitioner filed its response to my order of April 1, 

1980, and identified the issues as follows: 

(a) Whether 30 CFR § 77.1903(b) is a mandatory safety 

standard for which a civil penalty may be assessed under section 109(a)(l) of the Federal Coal Mine Health and Safety Act 

of 1969, or whether the regulation is merely advisory. 

(b) If 30 CFR 77.1903(b) is a mandatory safety standard, 

whether the violation of said standard as charged against each 

of the respondents in fact occurred at the No. 4 Coal Mine. 

1894 
(c) If so, the amount of civil penalty which should be 

assessed against each_oi_ the Respondents pursuant to section 

109(a)(l) of the-Federal Coal Mine He~lth and Safety Act of 

1969. 

Discussion 

Although given ample opportunity to do so, respondent Jim Walter 

Resources, Inc., has failed to respond to any of my post-remand orders and 

has apparently opted not to file any additional argtn11ents or to request any 

further hearings. Under the circumstances, I can only. conclude that it has 

waived its right to present any additional defense with respect to its position in this matter as a party-respondent, and any decision that I render in 

these dockets insofar as it may affect Jim Walter Resources is made on the 

basis of the record presently before me. With respect to the remaining 

parties, they are in agreement that these cases may now be decided by me 

without further hearings on the basis of the present record, including all 

of the additional arguments filed by the parties after the Commission's 

remand on November 21, 1979. 

Findings and Conclusions 

Is 30 C.F.R. § 77.1903(b) a mandatory safety standard or merely advisory? 

Section 77.1903(b) states as follows: "The American National Standards 

Institute, 'Specifications For The Use of Wire Ropes For Mines,' M 11-1-1960, 

or the latest revision thereof, shall be used a guide in the use, selection, 

installation, and maintenance of wire ropes used for hoisting." 

Respondent Cowin argues that section 77.1903(b) is not a mandatory standard for which a civil penalty may be assessed, but merely an advisory standard which incorporates the voluntary ANSI guidelines and recommendations. In 

support of this assertion, respondent states that the ANSI wire rope standards 

incorporated by section 77.1903(b) were developed as recommendations and that 

the specific ANSI sections relied on by the petitioner as the basis for the 

alleged violation are also written in advisory terms. Respondent also argues 

that section 77.1903(b) did not change the ANSI standards from advisory to 

mandatory by incorporating them as a guide, and that the a9,_visory language 

of the standards "should be," "recommended," and "advisory" are retained 

totally intact. 

In support of its arguments, respondent cites the testimony of MSHA 

technical specialist Fred Williams during the hearings (Tr. 332-334), and 

concludes that it is evident that the drafters of section 77.1903(b), 

including Mr. Williams, deliberately chose not to use the mandatory "shall," 

but rather, intended to leave it up to each contractor to use its judgment 

to determine which recommendations to follow. Respondent also points out 

that since the wording of section 77.1903(b) differs from that of any other 

section of Subpart T in that it is the only section which provides that a 

standard shall be used as a guide, while the other sections set forth 

1895 
specific standards that must be met, it is evident that section 77.1903(b) 

was intended to !"_~t~!_n.the_advisory character of the ANSI standards. 

Respondent cites two cases decided under the Occupational Safety and 

Health Act, Pan American Airways, 1975-1976 OSHD 20,674 (May 5, 1976), and 

Edward Hines Lumber Co., 1976-1977 OSHD 21,136 (September 29, 1976), in 

support of its argument that where ANSI standards have been the source for 

regulations under OSHA they have been found to be advisory and not mandatory, 

and quotes from the opinion of OSHRC Commissioner Moran in Pan American that 

"A violation of the Act's general duty clause cannot be predicated on a 

regulation which is no more than a recommendation." 

Finally, respondent argues that the petitioner's assertion that while 

the particular ANSI standards themselves may not be mandatory, it is nevertheless mandatory for an operator to use them as a guide is a totally artificial distinction that contorts the meaning of the term "mandatory" and 

invites arbitrary application of section 77.1903(b). Even under the petitioner's theory, respondent maintains that a company may adopt wire rope 

practices which do not conform with the ANSI recommendations as long as the 

company uses those standards as a "guide." Respondent suggests that this 

means that under the petitioner's theory, whether or nof-a penalty is 

assessed does not de.pend upon whether the company's practices conformed with 

identifiable mandatory standards, but depends upon whether the practices were 

sufficiently guided by the ANSI recommendations. Thus, if two companies 

adopted the same wire rope practices which did not conform with the ANSI 

recommendations, the company that used the recommendations for guidan~e would 

not be subject to a penalty, but the company that did not use them as a guide 

would be subject to a penalty. Respondent concludes that the Act did not 

intend such arbitrary results, and that since the ANSI standards underlying 

section 77.1903(b) are advisory only, section 77.1903(b) is not a mandatory 

safety standard for which a penalty may be assessed. 

Petitioner takes the position that section 77.1903(b) is a mandatory 

rather than an advisory safety standard, and argues that not only was 

30 C.F.R. § 77.1903(b) properly promulgated as a mandatory safety standard 

pursuant to the rulemaking procedures of the 1969 Act, but respondent Cowin 

actively participated in said rulemaking proceedings (p. 19 of Petitioner's 

Posthearing Brief, filed August 28, 1978). Moreover, petitioner asserts that 

respondent Cowin specifically stated in its shaft-sinking plans (submitted to 

and approved by MESA) that it would comply with the mandatory safety standard 

under 30 C.F.R. § 77.1903(b); i.e., it would use the ANSI Standards ("Specifications For The Use of Wire Ropes For Mines," Mll.1-1960) as a guide in the 

use, selection, installation, and maintenance of wire ~opes used for hoisting 

at the mine construction site (pp. 6-7 of Petitioner's Posthearing Brief). 

In response to respondent's assertions that section 77.1903(b) should be 

deemed advisory because the incorporated ANSI standards therein consistently 

use only the words "should be," "recommended," and "advisable," rather than 

mandatory words for their application, petitioner states that this is simply 

not true and points out that sections 5.2.1, 6.3.1.1, and 6.3.1.2 are the 

1896 
most important ANSI standards which respondent failed to use as a guide in 

this case, and tha"t_se~tion .1.2.1 states that "care must be exercised in 

handling to avoid kinking of the wire rope," etc; section 6.3.1.1 starts out 

by stating that "it is essential that tread diameters of sheaves and drums be 

liberal," etc; and section 6.3.1.2 starts by stating that "it is essential 

that head, idler, knuckle, and curve sheaves and grooved drums have grooves 

which support the rope properly." Petitioner asserts that it was the use of 

the K4UL tugger hoist wire rope with an undersized sheave and undersigned 

drum which caused the kinking, crushing and breaking damage to said rope 

which in turn led to its failure and the fatal accident (pp. 5 and 8-14 of 

Petitioner's Posthearing Briefs). 

Regarding respondent's reliance on the Pan American Airways a~d Edward 

Hines Lumber Co., cases, supra, petitioner submits that these cases are 

clearly distinguishable from the instant proceedings in that in Pan American 

Airways the regulation in question (use of the color yellow to mark tripping 

and similar physical hazards), which was derived from an ANSI Standard, was 

held to be unenforceable because it failed to tell the employer which objects 

were required to bear the caution markings, and thus amounted to a recommendation only. However, petitioner maintains that the important distinguishing 

factor of that case is that the Secretary of Labor had adopted the ANSI standard involved as a mandatory safety standard pursuant to section 6(a) of the 

Occupational Safety and Health Act of 1970 (the "OSH Act"), without following 

the rulemaking procedures provided for under section 6(b) of said Act. In 

this same connection, petitioner cited the later OSHA case of Kennecott Copper 

Corporation, 1976-1977 OSHD par. 20,860 (July 8, 1976), wherein the Occupational Safety and Health Review Connnission specifically held that the Secretary of Labor's adoption of an ANSI standard (concerning scaffold guarding) 

as a mandatory standard, by changing the word "should" to "shall", was 

improper for failure to follow the rulemaking procedures under section 6(b) 

of the OSH Act. 

In Edwind Hines Lumber Co., supra, the second OSHD case cited by respondent, petitioner asserts that it involved a standard which provided that 

"power controls and operating controls should be located within easy reach 

of the operator," and it was held to be advisory only because the language 

was not revised to make the standard mandatory when it was adopted from the 

ANSI source. Petitioner submits that this case is also dis-tinguishable from 

the one at bar since 30 C.F.R. § 77.1903(b) specifically uses the word "shall" 

and therefore is clearly mandatory. 

In summary, petitioner maintains that section 77.1903(b) is clearly not 

voluntary or advisory because it specifically states that the ANSI standards, 

"Specifications For The Use Of Wire Ropes for Mines," Mll.1-1960, shall be 

used as a guide in the use, selection, installation, and maintenance of wire 

ropes for hoisting. This regulation is obviously a mandatory safety standard 

. and was properly promulgated as such pursuant to the rulemaking procedures of 

the 1969 Act. 

Finally, petitioner argues that section 77.1903(b) has been in effect 

now for over 9 years, having been published in final form in the Federal 

1897 
Register on May 22, 1971 (36 F.R. 9364), and that under the 1969 Act, neither 

the Interior Board of Mine Operations Appeals nor an administrative law judge 

had the power to-invalidate~a regulation promulgated by the Secretary of the 

Interior. This power resided solely in the U.S. courts. Buffalo Mining 

Company, 2 IBMA 226 (1973); Peabody Coal Company, 4 IBMA 137 (1975). Petitioner asserts that under section lOl(d) of the Federal Mine Safety and Health 

Act of 1977, the exclusive means of challenging the validity of a mandatory 

health or safety standard is by filing a petition in the appropriate U.S. 

Court of Appeals prior to the 60th day after such standard has been promulgated, and that this obviously applies to new or revised standards promulgated under the 1977 .Act. As for the mandatory health and safety standards 

promulgated under the 1969 Act, section 30l(b)(l) of the Federal Mine Safety 

and Health Amendments Act of 1977 specifically provides that said standards 

shall remain in effect until such time as new or revised standards are issued 

by the Secretary of Labor under the new 1977 Act. Thus, under the old law 

(the 1969 Act) and under the new law (the 1977 Act), the exclusive power to 

invalidate a mandatory health or safety standard lies within the U.S. courts. 

No court challenge of 30 C.F.R. § 77.1903(b) has been filed by either respondent herein, or by anyone else for that matter, and said mandatory safety 

standard has been specifically continued in effect by the Amendments Act of 

1977. Accordingly, petitioner submits that the Commission and its administrative law judges lack authority to declare the subject regulation invalid. 

During the course of the prior adjudication in these proceedings, the 

arguments presented by the parties addressed the issue of whether section 

77.1903(b) was a validly promulgated standard, and whether the ANSI requirements were validly incorporated by reference as part of the requirements of 

that section. In its posthearing brief filed with me on August 28, 1978, 

respondent Cowin conceded that the ANSI wire rope standard was an integral 

part of section 77.1903(b), and its argument that this section is invalid 

was limited to the contention that the ANSI standards were invalidly incorporated by reference because of lack of proper notice and failure by the 

Director of the Federal Register to give his approval to their incorporation 

as part of section 77.1903(b). This contention was originally raised by 

respondent Jim Walter in a motion to dismiss filed August 15, 1977, which I 

denied on September 21, 1977, and again when I rendered by decisions. 

In my findings and conclusions made in my original d~cisions of 

October 19, 1978, I found that section 77.1903(b) was a validly promulgated 

standard and that the ANSI standards were validly incorporated by reference 

as part of that section (Decision, pp. 24-25). Further, I also discussed the 

fact that Cowin conceded that the ANSI standards were an integral part of 

section 77.1903(b), that it participated in the proposed rulemaking proceedings when the standards found in Part 77 were being proposed as mandatory 

safety standards before the Department of the Interior, that Cowin's shaftsinking plans submitted to the Department prior to the issuance of the notice 

of violation included certain assurances by Cowin that it will comply with 

the requirements of section 77.1903(b), and that Cowin had never taken exception or complained that the ANSI standards were not incorporated by reference 

in section 77.1903(b). In addition, I also took note of the fact that part 

1898 
of Jim Walter's prior history of violations included four separate instances 

where it had been ci-ted-for violations of section 77.1903(b), and paid the 

civil ·penalties assessed for those violations (Decision, p. 25; Exh. G-25). 

When these proceedings were before the Commission on the appeal taken by 

the petitioner with respect to my original decision, respondent Cowin characterized section 77.1903(b) as "a mandatory safety standard" (p. 5 of Brief, 

filed January 8, 1979, P• 1422 of Commission's official record). In arguing 

that the practical effect of the notice of violation served on Cowin in these 

proceedings was to charge it with violating the ANSI standards, Cowin again 

conceded that "these standards are incorporated, by reference, into 30 C.F.R. 

§ 77.1903(b)" (p. 7 of Brief). Further, during the course of the ~y 16, 

1978, hearing, Cowin's counsel asserted that notwithstanding the opinions of 

the witnesses with respect to the interpretation and application of section 

77.1903(b), "the standard speaks for itself** * and should stand on its own 

right" (Tr. 265). As for the intentions of the rulemakers when they promul-

_gated the standard, Cowin's counsel again asserted that "whatever the intention and opinion of the rulemaker, the standard has to speak for itself" (Tr. 

269). 

The 1969 USA Standards Mll.1-1960 dealing with the specifications for 

and use of wire ropes for mines, Exhibit G-8, contains the following introductory language explaining the intent of the standards: 

A USA Standard implies a consensus of those substantially concerned with its scope and provisions. A USA Standard is intended as a guide to aid the manufacturer, the 

consumer, and the general public. The existence of a USA 

Standard does not in any respect preclude anyone, whether he 

has approved the standard or not, from manufacturing, market..; 

ing, purchasing, or using products, processes, or procedures 

not conforming to the standard. USA Standards are subject to 

periodic review and users are cautioned to obtain the latest 

editions. Producers of goods made in conformity with a USA 

Standard are encouraged to state on their own responsibility 

in advertising, promotion material, or on tags or labels, 

that the goods are produced in conformity with particular 

USA Standards. [Emphasis added.] 

In further explanation of the work of the American National Standards 

Institute, the last page of Exhibit G-8 contains the following pertinent 

statement: "The Standards Institute provides the machinery for creating 

voluntary standards. It serves to eliminate duplication of standards 

activities and to weld conflicting standards into single, nationally accepted 

standards under the designation "American National Standards." [Emphasis 

added.] 

The 1977 ANSI standards for Base Mounted Drum Hoists, Exhibit R-2, 

states as follows, at page 2, section V: 

1899 
Mandatory rules of this Standard are characterized by 

the use of-the word "shall". If a provision is of an 

advisory nature .. :ft isindicated by the use of the word 

"should" and is a recommendation to be considered, the 

advisability of which depends on the facts of each situation. 

The difficulty with the regulatory language shall be.used as a guide 

lies in the fact that it lends itself to a somewhat ambiguous application. 

For example, if an operator refers to a particular ANSI standard as a guide 

but then decides not to adopt or follow it and instead follows the manufacturer's specifications, which may be different from the ANSI guides, is 

he in violation? Since the ANSI standards are incorporated by reference as 

part of section 77.1903(b), may the ANSI standards characterized as "recommendations" also be considered incorporated as "recommendations" thereby 

rendering them advisory? Conversely, may the incorporated ANSI standards 

which use the language "shall" be considered mandatory? Further, one may 

conclude that the language in section 77.1903(b), "shall be used as a guide," 

is mandatory, but that any reference to or reliance on any specific ANSI standards may be considered advisory depending on the wording of the particular 

standard. Arguably, for purposes of a civil penalty assessment, the regulatory language "shall be used as a guide" may support a-penalty assessment 

if it is established that a mine operator failed altogether to use any of 

the standards as _guides. Conversely, a valid argument could be made that 

if MSHA relies on any specific incorporated ANSI standard to support a proposed penalty assessment, it must first establish that the incorporated 

standard relied on to support a civil penalty is couched in mandatory ·rather 

than atlvisory terms. And, if it is determined that the specific incorporated 

ANSI standard relied upon to support a penalty assessment is advisory rather 

than mandatory, it would logically follow that the fact that it was not used 

as a guide would be irrelevant. To hold otherwise would place an operator in 

a position of being subjected to a civil penalty for failing to use as a 

guide an advisory ANSI standard, which standing alone could not serve as the 

basis for a civil penalty assessment. 

The foregoing situations illustrate the problem presented by the nebulous 

language of subsection (b), and in my view it would have been more desirable 

to simply require that the ANSI standards be used without qualification. In 

other words, deletion of the words "as a guide" would go a long way in clearing up the ambiguity. An inference may be made that since there is no 

statutory authority vested in the American National Standards Institute to 

promulgate binding mandatory safety standards pursuant to the Act, MSHA 

incorporated them by reference as a matter of expediency rather than proposing 

and promulgating them through the rulemaking process and then adopting them 

individually as part of Title 30, Code of Federal Regulations. However, it 

would appear from the record here presented, that even though recognizing the 

ambiguous language, MSHA nonetheless opted not to incorporate any specific 

mandatory language as part of section 77.1903(b). What it did was to incorporate the entire ANSI requirements as·guides whether they applied to shaft 

construction or not, and this conclusion is illustrated by the testimony of 

MSHA 1 s witness Fred Willi.ams, a participant in the drafting of the particular 

1900 
standard in question (Tr. 331-336, May 17, 1978, hearing). Mr. Williams 

stated that the ANSI stand~cg;_ were not incorporated as regulations because 

"anyone in the shaft sinking business knows which ones to pick out and apply" 

(Tr. 334). However, he candidly admitted that the manner in which the 

particular w.ire rope in question in this case was installed on the drum is 

not covered by an ANSI standard, and he indicated that respondent should 

probably have been charged with a violation of section 77.1907(d),'since the 

rope in question was not installed in accordance with that standard (Tr. 271). 

A further illustration of the confused application of the ANSI requirements in this case is reflected in the testimony of Inspector Kuykendall with 

regard to the asserted safety factor of 5 to the rope which broke. He conceded that there are no ANSI standards that require such a safety factor (Tr. 

185). Further, although MSHA's case is bottomed in part on the contention 

that the rope may have been installed with "hand-held" tension and may have 

been wound in the "wrong direction," thereby contributing to the alleged 

crushing and peening of the rope, MSHA's expert witness Alameddin, who conducted the laboratory analysis of the rope and prepared a report of the 

suspected causes of the rope failure, candidly admitted that the ANSI standards do not prohibit installing a rope with hand-held tension and do not 

mention winding it in the wrong direction. He also admittea that in conducting his laboratory analysis, he did not limit his findings to the ANSI 

standards, and relied on other industry and manufacturers' recommendations in 

selecting the sheave and drum winches used in conjunction with the rope in 

question. 

In view of the foregoing discussion, and in order to determine the specific ANSI requirements relied upon by MSHA in support of the alleged violation, reference must be made to that part of the accident report which the 

Commission believes composes the essential elements of the alleged noncompliance, namely, the ANSI requirements dealing with (1) the minimum ratio of 

drum or sheave diameter to the rope diameter, and (2) the excessive wear on 

the wire rope in question and the specific ANSI standards relied on by MSHA. 

Analysis and discussion of these requirements follows. 

In its most recently filed arguments, respondent Cowin identifies the 

specific ANSI standards relied on by MSHA in support of the alleged violation 

as: 6.3.1.1; 6.3.1.5.1, .2, .3, and .4; 5.2.1; and 6.5.2.1._ Petitioner's 

posthearing briefs cite the following ANSI standards which MSHA believes 

were not complied with: 5.2.1; 6.3.1.1, .3; 6.3.1.4.1, .2, .3, and .4; and 

6.5.2.1. Respondent argues that the consistent use of the words "should be," 

"recommended," and "advisable" in these ANSI standards, rather than the 

mandatory "shall be" clearly reflects that the standards are recommendations 

and that compliance with them is voluntary rather than compulsory. Respondent maintains that simply incorporating them by reference does not change 

the advisory nature of the standards and their advisory nature remain totally 

intact. Petitioner's reply to this argument is that the most important ANSI 

standards allegedly not followed by respondent, namely 5.2.1, 6.3.1.1, and 

6.3.1.2, use such words as "care must be exercised in handling to avoid kinking of the wire rope"; "it is essEmtfal that tread diameters of sheaves and 

1901 
drums be liberal"; and "it is essential that head, idler, knuckle, and curve 

sheaves and grooved.drums have grooves which support the rope properly." In 

short, petitioner asserts that the use of such terminology clearly indicates 

the mandatory rather than advisory nature of the cited ANSI standards. 

I have carefully reviewed the specific language of all of the aforesaid 

ANSI standards relied on by the parties and in each insta~ce I can_ find no 

language which supports any finding that they are mandatory. As correctly 

stated by the respondent in its arguments, the use of the words "should be," 

"recommended," and "advisable" are consistently used. As a matter of fact, 

I have been unable to find anyplace where the term "shall" is used, and I 

cannot conclude that the use of words "must" and "essential" render the 

standards mandatory. Under the circumstances, and after careful review and 

consideration of the arguments presented by the parties, I conclude and find 

that the respondent has the better part of the argmnent. I conclude that the 

specific ANSI standards relied on by MSHA in support of the alleged violation 

in this case are advisory guides for voluntary use by the industry. Since 

they are incorporated by reference as part and parcel of section 77.1903(b), 

I further find that for enforcement purposes they carry the weight of advisory 

rather than mandatory requirements for which an operato~_may be assessed civil 

penalties for noncompliance. In other words, I conclude that MSHA may not 

rely on an advisory ANSI standard as the basis for an assessment of a civil 

penalty, and section 77.1903(b) may not be used to support such a penalty 

proposal. Although I have consistently concluded that section 77.1903(b) is 

a validly promulgated standard, the question of whether it ismandatory and 

may support an assessment of a civil penalty in a situation where MSHA cites 

it is, in my view, dependent on whether the facts in any given case establish 

that bhe specific incorporated ANSI standard relied on by MSHA is advisory or 

mandatory and the question of whether an operator's failure to use any ANSI 

standard as a "guide" amounts to a violation of section 77.1903(b) would likewise be dependent on whether the particular standard which was not so used 

is couched in mandatory or advisory language. Thus, on the facts of this 

case, even if I were to make a finding that respondent failed to use any 

of the ANSI standards as guides, the crucial question would be whether the 

particular standards themselves are deemed advisory or mandatory. Since I 

have concluded that they were the former, it matters not that they were not 

used as guides. Failure to use a nonmandatory ANSI standard incorporated by 

reference as part of section 77.1903(b), does not in-my vt-ew constitute a 

violation for which a civil penalty assessment may be levied. 

ORDER 

In view of the foregoing findings and conclusions, IT IS ORDERED that 

Notice of Violation 2 REK, June 16, 1976, charging a vi'olation of 30 c.F.R. 

§ 77.1903(b), be VACATED, and that the petition for assessment of civil penalties as to the named respondents in these proceedings be DISMISSED. 

Additional Findings and Conclusions 

Since my findings and conclusions as to whether the cited standard is 

mandatory or advisory are dispositive of these cases it is not necessary for 

1902 
me to address the qther issues identified by the parties. However, I feel 

compelled to make findings31~_ conclusions concerning respondent Cowin's 

contention that it was-somehow prejudiced by the failure of MSHA to afford 

it access to the Part 100 assessment procedures at the time I ruled that 

Cowin could be named as a party-respondent under section 109(a) of the 

1969 Act, and these follow below. 

Has the respondent Cowin been denied access to MSHA's Part 100 assessment 

procedures, and if so, has Cowin been adversely prejudiced in this regard? 

Respondent maintains that by permitting the petitioner to amend its 

pleadings to name Cowin as a section 109(a) party-respondent, it lia.s been 

denied access to the procedural rights afforded under 30 C.F.R. 100.1 et ~· 

Respondent points out that these procedures provide that each notice of violation and order of withdrawal shall be reviewed by the Office of Assessments, 

which shall make a determination as to the amount of the penalty, if any, 

based on six enumerated criteria (Section 100.2). The operator is then 

issued an order of assessment (along with work sheets showing how the penalty 

was computed), and the operator may: (1) pay the penalty; (2) request a conference; or (3) request a hearing (Sections 100.4(b) and (c)). If a conference is scheduled (and it must be arranged if requeested by the operator), 

the Office of Assessments may reevaluate the penalty based on additional 

information presented to it, or may decide not to assess a penalty at all. 

(Section 106). The operator then has the option of paying the penalty or 

seeking a hearing, where an administrative law judge may make a de novo 

determination of the amount of penalty to be assessed, if any. 

Respondent argues that since it was originally charged as an agent rather 

than as an operator, it was not afforded the procedural benefits provided in 

MSHA's penalty assessment procedures. It was ·not served with an order of 

assessment and proposed penalty prepared by the Office of Assessments, and was 

not afforded the opportunity for a conference where the penalty could have 

been reevaluated or dropped. By amending the petition at the hearing stage 

to charge Cowin as an operator, respondent concludes that the petitioner 

has bypassed the preliminary penalty assessment procedures required under 

Part 100, and has deprived it of significant procedural benefits. Since the 

petitioner's failure to follow its own assessment rules and regulations has 

caused actual prejudice to the respondent by depriving it of_ significant procedural benefits, respondent maintains that the petition for assessment of 

civil penalty should be dismissed, citing United States ex rel Accardi v. 

Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Brennan v. 

Gilles and Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); United States v. 

Heffner, 420 F.2d 809, 811 (4th Cir. 1969); Atlantic Marine, Inc. v. Occupational Safety and Health Review Commmission, 524 F2d 476 (5th Cir. 1975); 

Equal Employment Opportunity Commission v. Hickey-Mitchel Company, 507 F.2d 

944 (8th Cir. 1974). 

It is clear from the record in this case that the two civil penalty 

cases filed by the petitioner against the two individual Cowin employees were 

disposed of by settlement when they paid civil penalties for the violation in 

1903 
question (Tr. 5, May 16, 1978, hearing). Although respondent agreed to the 

settlement disposj.tio_P: ,o:L t_h9se two cases without an admission of guilt, the 

fact is that the cases were disposed of by settlement and it seems clear to 

me that respondent Cowin was well aware of the issues and the terms of the 

settlement. While Cowin did not admit any guilt for the violation, it did 

agree and concede that the paid settlements for the violation could be considered as part of its history of prior violations (Tr. 6), and since Cowin 

and MSHA engaged in prehearing discovery, including interrogatories, it seems 

clear they were not oblivious to the issues presented. 

With respect to MSHA's proposal for assessment of a civil penalty against 

Cowin in this matter, the record reflects that MSHA specifically proposed a 

civil penalty assessment of $10,000 for the alleged violation, and a penalty 

of $5,000 against respondent Jim Walter Resources (Tr. 352-353). These proposals were served on the respondents in accordance with the applicable statutory and regulatory procedures, and the respondents filed timely answers 

contesting the proposed civil penalty assessments. 

With respect to the size of Cowin's operations, testimony adduced at the 

prior hearing reflects that Cowin is a well-recognized shaft. construction 

company and MSHA produced evidence concerning the size· ()f-the mining operation in question and the number of employees employed in this operation (Tr. 

348). 

With regard to the abatement efforts by the respondents, MSHA pre.sented 

testimpny in this regard (Tr. 349-352), and took the position that the conditions cited were abated in good faith and any increases in any penalty 

assessment is not warranted because of respondents' failure to timely abate 

the violation. 

With respect to the effect of the proposed civil penalty on respondent 

Cowin's ability to remain in business, that matter was also covered by the 

May 16, 1978, hearing and Cowin's counsel stated that while it would affect 

the respondent's business, it would not affect its ability to continue in 

business (Tr. 349). 

As for respondent's Cowin's prior history of violations, that matter was 

also covered by the May 16, 1978, hearing (Tr. 342-348) and MSHA's computer 

printouts reflecting that prior history was received in evidence and is part 

of the original trial record (Exhs. G-25 and G-26). 

In view of the foregoing record, and considering the totality of the circumstances presented in these proceedings, I fail to understand the basis for 

respondent Cowin's present assertions that it has somehow been prejudiced by 

~IBHA's failure to afford it an opportunity to have the violation considered 

under Part 100 of MSHA's assessment procedures. In my view, all of the statutory criteria found in section 110 of the Act have been thoroughly presented 

and considered, and Cowin has had more than ample opportunity to be heard on 

those criteria. More significantly, I assume that during the course of the 

prior adjudication of this case, the parties considered the possibility of 

1904 
a settlement; Since the two individual cases were in fact settled without 

trial, it seems obviQμs_:t!l,me that the reason the present case progressed 

to the hearing stage was that the parties could not settle it. In short, the 

case progressed beyond the contest stage and the hearing held on May 16, 1978, 

was de novo and a complete record was made, including the receipt of testimony 

and evidence touching on the criteria required to be considered by,me before 

any civil penalty assessments is levied. Further, it is clear that a section 

109 civil penalty proceeding is de novo and that the penalty assessed therein 

is to be determined irrespective of any prior proposed assessment, Boggs 

Construction Company, 6 IBMA 145 (1976); Black Watch Coal Corporation, 6 IBMA 

252 (1976); Peggs Run Coal Company, Inc., 8 IBMA 27 (1977). 

In view of the foregoing, I conclude and find that respondent Cowin has 

been afforded all of its procedural rights during the assessment stage of 

these proceedings and its argmnents to the contrary are rejected. 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

Robert w. Pollard, Esq., Office of the Corporate Counsel, Jim Walter 

Resources, Inc., 3300 First Ave. North, Birmingham, AL 35222 

(Certified Mail) 

William H. Howe, Esq., Timothy J. Parsons, Esq., Loomis, Owen, Feldman, 

& Coleman, 2020 K St., NW., Rm. 800, Washington, DC 20006 (Certified 

Mail) 

1905 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OtFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

t 5 JUL 19BO 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-587-PM 

Petitioner A.O. No. 13-00750-05002F 

v. 

Rock Valley Pit & Plant 

ROCK VALLEY CEMENT BLOCK AND TILE, 

Respondent 

Appearances: 

Before: 

DECISION 

Jaylynn K. Fortney, Attorney, U.S. Department of Labor, 

Kansas City, Missouri, for the petitioner; 

Robert J. Larson, Esquire, Sioux City, Iowa, for the 

respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent on March 30, 1979, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), charging the respondent with one alleged violation of 

mandatory safety standard 30 C.F.R. § 56.9-22. Respondent filed a timely 

answer contesting the citatio~, and a hearing was held in Sioux City, Iowa, 

on May 1, 1980. Posthearing briefs were waived by the parties, but they 

were afforded an opportunity to present oral arguments on the record at the 

hearing, and the arguments have been considered by me in the course of this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. 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 et ~· 

1906 
Issues 

The principal issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalty filed, and, if so, 

(2) the appropriate civil penalty that should be assessed against the respondent for the alleged violation based upon the criteria set forth in section 

llO(i) of the Act. Additional issues raised by the parties are identified 

and disposed of where appropriate in the course of this decision. 

In determining the amount of a civil penalty assessment, section ·110(i) 

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

to the size of the business of the operator, (3) whether the operator was 

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

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

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Stipulations 

The parties stipulated to the following (Tr. 13-19): 

1. Respondent's mining operation at the Rock Valley Pit 

and Plant is a small operation in that 7,150 man-hours are 

worked on an annual basis, and the mine employs five parttime 

workers, three of whom are engaged in year-round operations at 

t~e mine site. 

2. Respondent's mining operations at the mine site in 

question are subject to MSHA's regulatory jurisdiction and are 

covered by the Act. 

3. The Rock Valley Pit and Plant has no prior history of 

citations under the Act. 

4. Joint Exhibit J-1 is a diagram of the mine area where 

the inspection in question took place. 

5. On the date of the inspection in question, no berms 

were present in the area or on the alleged roadway cited by 

the inspector. 

6. At the time of the inspection in question, four pieces 

of equipment were being utilized in the area depicted by Exhibit 

J-1, namely, two panel trucks, a rubber-tired front-end loader, 

and a track-type front-end loader. 

7. The parties do not dispute the fact that a fatality 

occurred at the mine on May 22, 1978, when a front-end Michigan 

1907 
loader went over an embankment characterized by MSHA as an 

alleged elevated ~aulway or road causing fatal injuries to the 

loader operator-(Tr. 27-31). 

8. The parties agree that abatement was achieved by 

sealing off the dike area where the accident occur~ed (Tr. 

71). 

Discussion 

The section 104(.a) Citation No. 177404, issued by the inspector on 

Y.iay 25, 1978, describes the following condition or practice which the 

insp.ector believed constituted a violation of 30 C.F.S. § 56.9-22:· "The 

outer bank on the 12 foot wide elevated haulroad on top of the south dike 

was not provided with a berm to prevent a piece of equipment from driving 

over the edge of the roadway." 

Petitioner's Testimony and Evidence 

MSHA inspector Kenneth R. Harris testified as to his _mining background 

and confirmed that he went to the mine on May 24, 1979 ;·-a:t: the instructions 

of his supervisor, for the purpose of investigating a fatality which had 

occurred there on May 22. He was accompanied ·by MSHA special investigator 

Larry Nichols. He described the mining operation as a sand and gravel 

dredging operation and indicated that this was his first visit to the mine. 

Upon arriving at the mine, he met with company president Conrad Van Zee and 

informed him of the purpose of his visit. He was taken to the accident site 

by Mr: Van Zee, and the loader which was involved in the accident had been 

removed to the maintenance shop and Mr. Van Zee informed him that it was 

moved there so as to preclude any further damage to it from flooding from 

the nearby Rock River. He identified Exhibit J-1 as a sketch of the accident scene (Tr. 19-25). 

Inspector Harris testified that the roadway depicted in Exhibit J-1 was 

elevated 10 feet on the inside and outside, was 12 feet wide, and he described 

it as U-shaped or "horseshoe" shaped. Material was being excavated from the 

back end of a pit by means of a wheel-tracked loader and two dump trucks and 

the material was used to construct a dike for flood-contr~l purposes. No 

dredging operations were taking place in the immediate area. The material was 

transported by the trucks in a o~e-way circular direction on the top of the 

dike, and after being dumped it was leveled out by the loader, and the process 

was then repeated. No berms were present on the dike roadway where the trucks 

and loader were operating. He identified the outer ba~k of the dike roadway 

as that portion facing the river on the right side of the one-way traffic 

pattern as depicted on Exhibit J-1 (Tr. 32-38). 

On cross-examination, Inspector Harris testified that the dike construction activities in question were taking place approximately 300 feet west of 

the river, and he did not know whether the river appeared .to be flooding but 

indicated that he simply took Mr. Van Zee's word for it. Actual dredging 

1908 
operations were taking place some 300-400 yards to the east of the dike location, and a screenigg t:Q~~r __ was located between the two locations. He 

described the loader which was involved in the accident as a rubber-tired 

medium-sized machine, indicated that the tires were about 5 feet high, and 

he estimated the loader engine size as 150 to 200 horsepower. He also indicated that the berm guidelines require berms of a sufficient size to restrain 

vehicles and that as a general rule the berm should be as high as the axle 

height of the largest piece of equipment operated on the elevated roadway (Tr. 

38-46). 

Mr. Harris stated that the question as to whether a 2-1/2-foot berm would 

have prevented the front-end loader in question from going over the embankment 

would depend on the speed of the vehicle and the width of the berm; He considered the building of the dike to be a mining operation and the materials 

being used for this purpose on the day in question was compacted field dirt 

and clay but not sand and gravel. The trucks hauled the material to the top 

of the dike where it was layered and leveled by the loader. The area was not 

a regularly used passageway for vehicles or pedestrians other than the trucks 

traveling the area where the dike was being constructed. 

Mr. Harris could not define a "roadway" and he indic·ated that the definition of a "roadway" was included as part of the regulatory standards in question. He confirmed that he issued the citation in question and that he used 

the word "haulroad" to describe the material being hauled on the road in question during the construction of the dike. He could not cite the specific 

regulatory definition of the term "haulroad." Since equipment and pe~ple were 

driving on the road, he believed the area cited was a haulroad, and the citation issued because there were no berms (Tr. 47-56). The width of the "roadway" at the point where the accident happened was 31 feet (Tr. 59)~ 

On redirect, Inspector Harris stated that dredging operations would have 

in time been conducted at the dike area, characterized the material being 

excavated to construct the dike as overburden, and stated that abatement was 

achieved by closing off the roadway entrance and exit ramps (Tr. 60-61). 

In response to bench questions, Inspector Harris stated that he did not 

know how long the dike construction had been going on, had never inspected 

the facility prior to his visit, and no one from mine management offered an 

explanation as to why berms were not constructed. Based on his experience 

at other mines, he stated that berms are constructed from earthen material or 

quarry rock, but indicated that he has never previously encountered a situation where a dike was being constructed as in the instant case (Tr. 63-67). 

Respondent's Testimony and Evidence 

Conrad Van Zee, president, Rock Valley Cement Block and Tile Company, 

testified that his company conducts a surface-mining operation which consists 

of pumping sand and gravel out of water. He described the mining operation, 

and stated that it includes the removal of overburden to reach the underlying 

1909 
sand and gravel. The operation also includes the sizing, washing, and stockpiling of the mined material which is pumped through a pipeline or conveyor 

belts to an aggregate.plant: Trucks are used only to haul the stockpiled 

materials to customers. His company also operates a readymix cement plant 

and manufactures concrete block. The mining operation is conducted from 

May to the middle of November. During the winter months, three of the five 

employees are engaged in plant and dredge repair work (Tr. 82-88). 

Mr. Van Zee confirmed that he obtained a copy of the 1977 mandatory 

safety standards, and he indicated.that his company is safety-conscious and 

has always followed t~e requirements of the law as closely as possible. He 

also confirmed that he familiarized himself with the standards as best he 

could but was never furnished a copy of the inspector's handbook •. He has 

never been cited for other than minor infractions, and since May 22, 1978, 

has received two citations for a faulty ungrounded light plug and failure to 

sufficiently guard a piece of equipment. Abatement of cited infractions has 

always been immediate, and apart from minor cuts, he has. had no lost-time 

accidents other than the one in question in this case (Tr. 88-91). 

Mr. Van Zee described the dike construction activities taking place on 

the day in question and characterized them as efforts .to-prevent water from 

the river coming onto the mine and filling the pit. He stated that the primary purpose of the activity was to extend the dikes around the mine property. The dike was used only for flood protection and he asserted that the 

dike in question did not have a roadway on the top of it where vehicles or 

pedestrians traveled. He confirmed that the width of the top of the dike was 

12 feet and that this width was determined to be adequate to withstand the 

water pressure. He had never been previously cited for any dike deficiencies 

either before or after the accident in question and the instant case presents 

the first occasion where he was informed by MSHA that a berm was required (Tr. 

91-95). 

Mr. Van Zee indicated that he did not consider the top of the dike to 

be an elevated roadway, and in his opinion a roadway is one that is regularly 

used for haulage by trucks on a day-to-day or year-to-year basis, and he could 

not recall discussing the matter with the inspector at the time the citation 

issued. None of the other dikes on the mine property had. berms, and the mine 

had never been previously cited for failure to construct s~ch berms. He has 

not been able to find the definition of a "roadway" as that term is used in 

the regulations and he has never been informed by MSHA that the failure to 

have berms on the dikes constituted a violation. He confirmed that the height 

of the loader wheels were 5 feet and he described its operation as well as the 

procedure for constructing the dike. Earlier dike construction utilized a 

crawler to push the material, but trucks were subsequently used when the dirt 

supply was exhausted (Tr. 96-102). 

Mr. Van Zee confirmed that he went to the accident scene and he described 

the extent of the slope embankment where the loader overturned as a "gentle ,, 

slope" and he believed that a piece of equipment could be driven there without 

fear of tipping over. He believed that the accident occurred when the loader 

1910 
operator, for some unexplained reason, began to back down the slope and while 

attempting to compett.i?at_i;__ for. this caused the weight of the loader to shift, 

thereby causing it to flip over. In his view, the existence of a berm would 

not have prevented the loader from going over the edge (Tr. 102-107). 

On cross-examination, Mr. Van Zee stated the dike in question was a continuation of an existing dike which would eventually go around the perimeter 

of the entire mine property. Construction of the original dike began in 1963, 

but it was constructed by a contractor and no vehicles traveled at the top of 

the.dike during that time. He was aware of the fact that berms are required 

on an elevated haulway, ·and he described the method and procedure used for the 

construction and continuation of the dike. Vehicles and men worked on the 

top of the dike for 2 days building it up from an 8-foot level to the 12-foot 

level as it existed on the day of the accident. It would have taken an additional 2 days to complete the short duration dike project. He conceded that 

a hazard does exist when men and equipment are working on the top of an elevated area without guard railings or berms (Tr. 116-127). He also indicated 

that the top of the dike was never used for haulage operations and he has 

never considered it to be a roadway (Tr. 128). In his view, a haulroad or 

roadway is one which is used to transport the product being mined, namely 

sand and gravel, and he does not consider the dike area in question, which 

was used to transport material for constructing the dike to be such a haulroad or roadway (Tr. 129-130). He had no previous occasion to construct berms 

at the mine because there are no elevated haulroads there (Tr. 134). Although 

dike construction was taking place on the day in question, sand and gravel 

would eventually be taken out (Tr. 137). The loader met the required applicable safety standards and it was not cited for any infractions (Tr. 138). 

Mr. Van Zee also indicated that had overburden been removed and traveling 

over the dike area on a regular day-to-day basis, he would consider it to be 

a roadway (Tr. 143). 

Findings and Conclusions 

Fact of Violation 

MSHA asserts that it has established that the roadway in question was 

elevated, that vehicle traffic used it, and the fact that the berm standard 

is found in a section of the regulations entitled "loading, hauling or 

dumping" does not limit the application of the standard strictly to such 

enumerated activities. MSHA asserts further that its evidence has established that men and materials were transported along the dike roadway, that 

it was elevated, and since it had no berms, a violation has been established 

(Tr. 151-154). 

Respondent takes the position that since the cited safety standard does 

not define the term "roadway," it is impossible for a mine operator to ascertain whether he is in violation, and it is unfair to penalize an operator in 

such a situation. Respondent asserts further that it had been previously 

inspected by MSHA and had never been cited for any berm violations. Respondent also argues that the so-called "roadway" was merely u·sed as a casual 

1911 
access to the top of the dike and.that the area was never intended to be 

used as a roadway and wa~ _!l~t constructed for that purpose. Conceding that 

"haulage" was being.done, respondent asserts that it was for the purpose of 

building a dike rather than for the removal and transportation of mined 

materials over a roadway (Tr. 156-159). 

In addition to the lack of a regulatory definition of the term "roadway," 

respondent also suggested that the construction of the dike in question was 

not "mining" within the meaning of the Act, and that MSHA has produced no 

evidence to establish that sand and gravel was being mined or transported 

over the so-called roadway at the time of the inspection (Tr. 62-63; 78). 

In view of the foregoing arguments, the issues to be addressed are as 

follows: 

1). Whether the dike construction activities were "mining" activities 

within the meaning of the Act. 

2). Whether the dike area in question, which was not protected by berms, 

may be considered a roadway within the meaning of the cited_ standard. 

3). If the answer to Issue No. 2 above is in the affirmative, was the 

roadway elevated? 

4). If the answer to Issues Nos. 2 and 3 are in the affirmative, has 

a violation been established by MSHA by a prepo~derance of the evidence? 

Issue'No. !--Mining Activity 

It seems·clear from the testimony presented in this case that on the 

day of the accident, and at the time the citation was issued, respondent was 

in the process of constructing a dike to prevent possible flood waters from 

a nearby river from coming onto and inundating the mine property. In this 

connection, top soil or dirt, loosely characterized as overburden, was being 

removed by a loader and transported by truck to the top of the dike where it 

was dumped and then layered, smoothed out, and compacted by the loader which 

went over the embankment. It is also clear that no sand or gravel was being 

dredged or "mined" during this time (Tr. 62-64), and MSHA __ conceded this fact 

(Tr. 64). 

"Overburden," as defined by section 56.2, means "material of any nature, 

consolidated or unconsolidated, that overlies a deposit of useful materials 

or ores that are to be mined." On the facts presented in this case, I conclude that the materials removed for use in the dike construction fall within 

this definition, particularly in light of Mr. Van Zee's candid admission that 

the sand and gravel underlying the removed materials would eventually be mined 

(Tr. 137). 

I am not persuaded by the fact that sand and gravel was not being excavated at the time of the inspection, and I find that the removal and loading 

1912 
of the t9P soil and other materials used for the dike construction, as well 

as the actual const~_uc~j~p_9f_~he dike itself, was an integral part of the 

mining process. The removal of the material served two purposes. First, it 

was used to construct a dike whose purpose was to prevent water from possibly 

inundating .the mine. Second, the removal of the material also facilitated 

the removal of sand and gravel, since it is clear that these materials would 

eventually be mined and removed from the pit area where the trucks were loading. In addition, Mr. Van Zee confirmed the fact that the dike construction 

was an on-going project, that the particular dike project in question was a 

continuation of an existing dike began in 1963, and that it would eve~tually 

cover the perimeter of the mine property. 

The definition of the term "coal or other mine" found in section 3(h)(l) 

of the Act, particularly subsection (c), includes, "lands, excavation, * * * 

workings, structures, or other property including impoundments, retention 

dams, * * * used in, or to be used in, or resulting from, the work of 

extracting such minerals from their natural deposits * * *·" 

I conclude and find that the facts presented support a conclusion that 

the dike construction activities in question were mining activities within the 

meaning of the Act and that the dike itself was an integral-and inseparable 

part of the mine. Accordingly, respondent's arguments and suggestions to the 

contrary are rejected. 

Issue No. 2: Was the Dike Area in Question a "Roadway" Within the Meaning 

of Section 56.9-22? 

It seems clear from the arguments advanced by the respondent that it 

believes that the construction to be placed on the term "roadways" as used 

in section 56.9-22 is one that would require berms only in those instances 

where the road is regularly used day in and day out as a regular truck route 

for haulage of materials which have been mined. Respondent believes that 

since the alleged roadway in question was used only for the purpose of dike 

construction on a short-term or sporadic basis, and since pedestrians and 

vehicular traffic did not use the area as a regular haulage route, the dike 

area in question was not a roadway within the meaning of section 56.9-22. 

The term "roadway" is not defined by Part 56 of the regulations. Respondent's position on this question suggests that since section 56.99-22 is found 

under a regulatory heading--"Loading, hauling, dumping," the term roadway, 

along with the requirements for berms, should only apply in circumstances 

which clearly show that the mined materials are regularly and systematically 

loaded and hauled out of the mine along clearly defined. haulage roadways 

designated and regularly used for such purposes. In short, respondent suggests a narrow and restrictive interpretation and application of the berm 

standard, the thrust of which is seemingly centered on the frequency and 

duration for which the "roadway" may be used. 

After careful consideration of the arguments presented by the parties, and particularly the facts presented in this case, I conclude that 

1913 

... 
petitioner's position is correct and that respondent's restrictive interpretation must be reje£-~e~.!_aaj m.Y reasons for these conclusions follow. 

The intent of the safety standard in question is to provide protection 

for men and equipment which are required to travel along elevated roadways 

while performing work connected with the mining process, and respondent has 

conceded this fact (Tr. 127). The evidence adduced establishes that overburden, as defined by section 56.2, was being removed and loaded at the dike 

construction site, and respondent clearly intended to utilize the pit area 

from which the materials were moved as part of its regular dredging operation (Tr. 125). Thus, it seems clear to me that materials were in fact being 

loaded. Next, the materials were loaded onto dump trucks and hauled along 

a clearly defined route, dumped, and leveled by a loader until the·required 

dike height was achieved. The fact that this particular project was of a 

relative short duration is not critical in my view. Section 56.9-22 makes 

no mention as to the frequency or duration for which such roadways are used. 

An elevated roadway utilized for a week by trucks and other equipment is no 

different, from one used for longer periods of time. A potential hazard 

along an unprotected roadway remains a hazard whether it be of short or 

long duration, and I believe that section 56.9-22 is intend_ed to prevent 

such hazards in both such circumstances. - ---

Although the dike construction in question on the day the citation 

issued may have been of relatively short duration, it seems clear to me 

from Mr. Van Zee's testimony that it was a continuation of an existing dike 

system that would eventually ring the perimeter of the entire mine property. 

And, while the method of construction apparently varies between the us-e of 

a loader which pushes materials to form the dike and the use of trucks to 

haul the materials to the top of the dike, in those instances where trucks 

and loaders are used to move materials to the top of the dike, I conclude 

that the area traveled by such trucks and personnel are roadways within the 

meaning of section 56.9-22. Consequently, if such areas are elevated and 

unprotected on the outer banks, berms are required. 

Issue No. 3--Elevated Roadway 

Inspector Harris described the roadway in question and indicated that it 

was elevated some 10 feet on the inside and outside bank, and was approximately 12 feet wide. The flow of traffic was in a one-way direction as 

depicted on Exhibit J-1, and the outer bank was that portion of the roadway 

facing the river, and the width of the roadway at the point where the accident occurred was 31 feet. 

Mr. Van Zee agreed with the stated width of the roadway, and while he 

characterized its slope at the point of the accident as a "gentle slope," 

he indicated that the dike had been constructed to a height of 12 feet at 

the time of the accident. 

I conclude and find from the testimony and evidence presented in this 

case that the dike roadway in question was elevated above the surrounding 

1914 
terrain and pit areas where materials were being removed for the dike construction. Accordingly, I conclude that petitioner has established that the 

roadway in question-wa-s-- "elevated" within the meaning of section 56.9-22. 

Fact of Violation 

Respondent conceded and stipulated that no berms were present at the 

location cited by the inspector. In view of my findings and conclusions that 

the dike area was an elevated roadway, and in view of the fact that it is 

clear that the outer bank of that elevated roadway, that is, the elevated 

portion facing the riv~r which ran along the mine property at the approximate 

scene of the accident, was not protected by a berm, I conclude and find that 

petitioner has established a violation of section 56.9-22, and the citation 

issued in this case is AFFIRMED. 

Size of Business and Effect of Penalty on Respondent's Ability to Remain in 

Business 

The parties agree that respondent is a small mine operator and I adopt 

this as my finding. I also find that the civil penalty assessed by me in 

this matter will not adversely affect respondent's ability to remain in 

business. 

History of Prior Violations 

Respondent's mining operation at the Rock Valley Pit and Plant has generated no citations prior to the one in question, and petitioner agrees that 

respondent's safety record is "quite good" (Tr. 154). I adopt these facts 

as my findings on prior history and this is reflected in the civil penalty 

assessed by me in this case. 

Good Faith Compliance 

Abatement was achieved timely by sealing the dike roadway area off and 

the inspector considered this adequate abatement (Tr. 70-71). I conclude 

and find that the respondent exercised good faith in achieving compliance in 

this case. 

Gravity 

Although there is no conclusive evidence that a berm would have prevented the accident which occurred in this case, I believe that it is reasonable to assume that a berm would at least have served as a warning to the 

loader operator that he was approaching the edge or slope of the roadway 

embankment. Further, respondent candidly conceded that a hazard does exist 

when men and equipment are working in elevated areas without berms or guards. 

Accordingly, I find that the violation in this case was serious • 

• 

1915 
Negligence 

Respondent has established that it has never been previously cited for 

failure to install berms or guards on any of its other dikes. Although this 

is no defense to the violation, it does support respondent's assertion that 

it reasonably believed that the elevated dike area characterized by MSHA as 

a roadway after the fact was not a roadway requiring a berm. Further, this 

is not the first time that MSHA has been prompted by a fatality to apply a 

safety standard requiring berms to an elevated area that presents a hazard. 

See my decision in MESA v. Peabody Coal Company, VINC 77-102-P, issued 

December 13, 1977, where I specifically invited MESA to reexamine the identical regulatory language found in the berm standard applicable to surface 

coal mines and surface work areas of underground coal mines, 30 C.F.R. 

§ 77.1605(k), for the purpose of communicating understandable, rational, 

and workable guidelines for the application of this standard to the mining 

industry. 

As the parties in this case recognize, the term "roadway" is not defined 

in Part 56. Surprisingly, section 56.2 defines the term "highway" (public 

street, alley or public road), and the term "travelway," but does not define 

haulage road or roadway. Judges Moore and Broderick have-grappled with the 

term "roadway" in prior cases involving section 55.9-22, MSHA v. El Paso Rock 

Quarries, DENV 79-139-PM, Judge Moore, December 17, 1979, MSHA v. Cleveland 

Cliffs Iron Company, VINC 79-240-PH, Judge Broderick, December 3, 1979, and 

one would think that MSHA would take note of these decisions and amend Part 56 

of the standards and cure the ambiquities that apparently still exist with 

the interpretation of this standard, ambiquities which I suggest result from 

the brbad and ambiguous language of the berm standard itself. 

Although Mr. Van Zee conceded that equipment and men working in an 

unguarded elevated dike area were exposed to a potential hazard, I find him 

to be an honest, candid, and credible witness and accept his explanation as 

to his interpretation of the standard as reasonable. Under the circumstances, 

and after careful consideration of all of the facts and circumstances here 

presented, I conclude that the respondent could not reasonably have known of 

the violation and accordingly was not negligent. 

Penalty Assessment 

The parties entered into a proposed settlement of this cases but it was 

rejected by me when it was filed at the hearing and my rejection was based 

on the fact that I considered it to be untimely, (Tr. 4-9; Exh. P-1). In 

addition, at the conclusion of the hearing, petitioner's counsel recommended 

a civil penalty somewhat lower than that proposed by MSHA's Office of Assessments ($2,500). 

It is clear that I am not bound by the initial proposed assessment made 

in this case by the petitioner's Office of Assessment. This case was heard 

de novo and my finding and conclusions are made on the basis of the evidence 

and testimony adduced by the parties. Based on the fact that there is no 

1916 
direct ev1dence that the fatality which occurred in this case was the result 

of the failure to·_pr~yic;le_a_berm. at the scene of the accident, and based 

further on the respondent's size, its immediate corrective action, the fact 

that it has no prior history of citations under the 1977 Act, and my finding 

of no negligence on its part, I conclude that a civil penalty of $850 is 

appropriate and reasonable in the circumstances. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the amount of $850 

within thirty (30) days of this decision. Upon receipt of payment by the 

petitioner, this matter is dismissed. 

Administrative Law Judge 

Distribution: 

Jaylynn K. Fortney, Esq., Office of the Solicitor, U.S. Department of 

Labor, 911 Walnut St., Rm. 2106, Kansas City, MO 64106 (Certified 

Mail) 

Robert J. Larson, Esq., Qualley, Larson & Jones, Suite 606, Courthouse 

Plaza, Sixth and Dakota, Sioux Falls, SD 57102 (Certified Mail) 

1917 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

t 5 JUL 1990 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

CLIMAX MOLYBDENUM COMPANY, ) 

) 

Respondent. ) 

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

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-303-M 

MSHA CASE NO. 05-02337-05007 

DOCKET NO. WEST 79-304-M 

MSHA CASE NO. 05-02337-05008 

MINE: CLIMAX MILL 

DECISION 

APPEARANCES: 

Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh, 

Regional Solicitor, United States Department of Labor, Kansas City, 

Missouri 

for the Petitioner, 

Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado 

for the Respondent. 

Before: Judge John J. Morris 

WEST 79-303-M 

Citation 329190 

Petitioner, the Sec'retary of Labor, on behalf of the ·Mine Safety 

and Health Administration, charges respondent, Climax Molybdenum Company, 

failed to guard electrical equipment. MSHA asserts that Climax thereby 

violated 30 C.F.R. 51.12-30, 1 

a regulation promulgated under the statutory 

authority of the Federal Mine Safety and Health Act of 1969 (amended 1977), 

30 u.s.c. § 801 et seq • 

.!/ The cited standard provid_es as follows: 

57. _12-30 Mandatory. When a potentially dangerous 

condition is found it shall be corrected before 

equipment or wiring is energized. 

1918 

.-. 

~~.: 
ISSUE 

- . -- -- The issue is whether Climax violated the regulations. 

FACTS 

The evidence is uncontroverted. I find the following facts to be 

credible. 

1. During an inspection the MSHA inspector observed insulated 

electrical wires leading from a motor (Tr 6, 10, 26). 

2. The motor, which was cited for the violation of the standard, 

lacked a junction box with a bushing. It was one of 5 motors on the 

premises ( 'l'r 6). __ 

3. The inspector was of the opinion that motor vibration could work 

the wires loose (Tr 8). 

4. The Climax electrical foreman indicated this 900 r.p.m. motor had 

been in use in the mid 1920s (Tr 23). 

5. The motor has a ground wire attached to the frame (Tr 12). 

6. The wires are insulated and there was neither a shock hazard nor a 

dangerous condition (Tr 19, 24, 25). 

7. Climax's remaining four motors at this location were designed to 

have junction boxes (Tr 19, 23). 

;: 

DISCUSSION 

The federal inspector concedes he is not an electrical expert (Tr 11). 

The uncontroverted evidence shows that this particular motor was not 

hazardous. It was designed without a junction box. 

on these facts, I conclude that motor was not potentially dangerous as 

that term is defined in 30 C.F.R. 57.12-30. 

1919 
Citation 331894 

MSHA charges- ClTmax-dld not guard certain electrical connections 

thereby violating 30 C.F.R. 57.12-23. 2 

The evidence is essentially uncontroverted. I find the follow.ing facts 

to be credible. 

8. In a 2 to 3.foot wide walkway the MSHA inspector observed 

uninsulated bus bars (solid copper bars carrying 440 volts) (Tr 45 - 47). 

9. The bars, more than 8 feet above the floor, were guarded by 

elevation (Tr 69, 71). 

10. There was a 6 foot ladder located within 5 feet (Tr 45). 

11. Workers frequently carry conduit or wire (Tr· 45 -.:.. 47). 

12. The National Electrical Code applies to surface facilities. Under 

the Code live parts of 600 volts or less are guarded by location if they are 

elevated 8 feet or IrOre above the floor (Tr 67, RS, R6). 

13. The area was further protected by an insulated mat on the floor 

(Tr 66 - 67, 72). 

DISCUSSION 

This citation should be vacated. The National Electrical Code provides 

that bus bars are protected by location if 8 feet above the floor. This 

~/ The cited standard provides as follows: 

57.12-23 Mandatory. Electrical connections and resistor 

grids that are difficult or impractical to insulate shall 

be guarded, unless protection is provided by location. 

1920 
interpretation by a recognized electrical authority is confirmed by a 

document issued S.y the-·Depa-rtment of Labor construing its own standard (R7). 

Petitioner'~ objection to the document is again overruled. The exhibit was 

an admission against petitioner's interest. It's authenticity is 

established by the Climax electrical superintendent who identified it as 

written by, and obtained from MSHA (Tr 72 - 76). 

At trial MSHA seeks to establish that a location is guarded by height 

only if it is 10 feet above the adjoining surface (Tr 49). For the above 

stated reasons I reject MSHA's view. It appears that the ten foot 

requirement only applies on the outside of buildings (Tr 58). 

The electrical connections here were at least 8 feet_ above the ground. 

They are accordingly "protected by location" as that term is used in 30 

C.F.R. 57.12-23. 

MOTION 

During the hearing petitioner moved to vacate the citations 329188 and 

329191. 

Pursuant to Commission Rule 2700. 11 the motions should be granted. 

WEST 79-304-M 

Citation 331868 

Petitioner charges Climax failed to guard bus bars thereby violating 

57.12-23. 3 

The evidence is conflicting. I find the following facts to be 

credible. 

ll The cited standard provides as follows: 

57.12-23 Mandatory. Electrical connections and resistor 

grids that are difficult or impractical to insulate shall 

be guarded, unless protection is provided by location. 

1921 
14. There were uninsulated bus bars above the switch gears. Bus 

bars, made of copper~ measured 4 inches wide and 1/4 to 1/2 inch thick (Tr 

87 - 89 - 97, 105 - 106). 

15. The bars, carrying 440 volts, were located above a 3 foot wide 

walkway (Tr 87 - 92). 

16. The bars were 8 feet 6 inches above the floor resting on 4 inch 

insulators, or a total of 106 inches above the floor (Tr 100 - 102). 

17. The area under the bus bars can only be entered by opening a metal 

gate. Only the Climax electricians have keys to the gate ('l'r 103). 

18. There is no reason for anyone to be under the bus bars with rods, 

pipes, or anything of that nature (Tr 104). 

19. The National Electrical Code provides that an area is protected by 

location if, as here, it is more than 8 feet above the ground (Tr 104 -

105). 

20. There were insulating mats on the floor (Tr 104). 

DISCUSSION 

The inspector indicated the bus bars were ninety inches (7 feet, 6 

inches) above the floor but Climax's electrical superintendent indicated the 

bottom of the bus bar was 118 inches (9 feet, 10 inches) above the floor. I 

have accepted Climax's version since the person in charge of the area would 

ordinarily make a more accurate measurement than an inspector who was 

engaged in looking into various areas. 

The discussion concerning the prior citation is equally applicable 

here. In short, 8 feet or more above the floor constitutes "protection by 

location" as that term is used in 30 c.F. R. 57.12-23. 

1922 
CONCLUSIONS OF LAW 

WEST 79-303-M 

Citation 329190 and the proposed penalty therefor should be vacated. 

(Facts 1 - 7) 

Citation 331894 and the proposed penalty therefor should be vacated. 

(Facts 8 - 13) 

Citations 329188 and 329191, on petitioner's motion, should be 

vacated. 

WES'l' 79-304-M 

Citation 331868 should be vacated. (Facts 14 - 20). 

Based on the foregoing findings of fact and conclusrons of law, I enter 

the following: 

ORDER 

In Docket Number 79-303-M, Citations 329188, 329190, 329191, and 331894 

are vacated. 

In Docket Number 79-304-M, Citation 331868 is vacated. 

La~ Judge 

Distribution: 

Roberts. Bass, Esq., Eliehue c. Brunson, Esq., Office of the 

Solicitor, United States Department of Labor, 911 Walnut Street, 

Room 2106, Kansas City, Missouri 64106 

Richard w. Manning, Esq., Attorney for Climax Molybdenum Company, 

a Division of AMAX, Inc., 13949 West Colfax Avenue, Golden, Colorado 

80401 

1923 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

--- 'OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOW~RS NO. 2, lOTH FLOOR 

520~ LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION(MSHA), 

v. 

OZARK-MAHONING COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

I 5 JUL 1980 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. LAKE 79-280-M 

A.O. No. 11-02667-05002 

Denton Shaft Mine 

DECISION 

Appearances: Michele M. Fox, Esq., Office of the Solicitor, U.S. Department 

of Labor, Chicago, Illinois, for Petitioner; 

Mr. M. L. Hahn, Safety and Industrial Relations Director, 

Ozark-Mahoning Company, Rosiclare, Illinois, for Respondent. 

Before: Judge Edwin s. Bernstein 

On June 10, 1980, I conducted a hearing pursuant to Section lOS(d) of 

the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 801 

~~., and 29 C.F.R. § 2700.50 ~~., and issued the following decision 

from the bench: 

This is my bench decision with regard to the proposed 

settlement in this case. The parties have proposed settlements of the four citations in this case as follows: 

Citation No. 367103 for $81.00, a reduction from the 

amount initially proposed, which was $114.00; 

Citation No. 367104 for $78.00, a reduction in the 

amount initially proposed, which was $98.00; 

1924 
Citation No. 367106 for $128.00, a reduction from the 

amount initially proposed, which was $160.00; 

Citation No., 367107 for $157.00, a reduction from the 

amount initially proposed, which was $210.00. 

Upon consideration of the motion of the parties and the 

arguments presented at this hearing on that motion, I approve 

the settlements proposed for all four citations., My reasons 

are as follows: 

With respect to Citation No. 367103, the cit~tion stated 

the limit switches were not operating on the hoist. The 

Secretary of Labor alleged a violation of the mandatory 

safety standard at 30 C.F.R. § 57.9-2, which reads: 

"Equipment defects affecting safety shall be corrected before 

the equipment is used." 

The parties have stipulated, and I find with respect to 

this citation and all other citations, that Respondent was a 

small operator; it had a small m.unber of previous violations; 

The assessment of the penalty proposed either initially or in 

connection with this settlement would not adversely affect 

Respondent's ability to continue in business; and Respondent 

achieved rapid, good faith compliance in connection with all 

citations .. 

1925 
With respect to Citation No. 367103, I find· ordinary negligence and moderate gravity. In approving the settlement, I 

am impressed by the fact that there was a deadman switch on 

the hoist which did provide protection against the accident 

envisioned by the citation. Therefore, I approve the settlemerit proposed.and assess a penalty of $81.00 for that citat;ion. 

Citation No. 367104 stated that a safe means of access 

was not provided to the sheave wheels and bucket dump on the 

head frame. The Secretary of Labor alleged a v!_.Qlation of 

the mandatory safety standard at 30 C.F .. R .. §57 .ll-1, which 

reads: "Safe means of access shall be provided and maintained 

to all working places .. " In approving the settlement of this 

citation, I am impressed by the contentions of the parties 

that there was less exposure than the Secretary of Labor had 

anticipated, in that only one maintenance person was exposed 

and that man had a safety belt, and that there was rapid 

abatement of this violation.. Therefore, I assess a penalty 

in the amount of $78.00 in connection with Citation No. 367104. 

Citation No .. 367106 alleged that the barrier at the 

shaft opening was not adequate. The Secretary of Labor 

alleged a violation in connection with that citation of the 

mandatory safety standard at 30 C .F .R. § 57 .19-100, which 

reads: "Shaft landings shall be equipped with substantial 

1926 
safety gates so constructed that materials will not go 

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

loading or unloading shaft conveyances." The parties have 

indicated that a chain eighteen inches from the ground was 

installed at the opening; that the opening did have a door; 

and that it was company policy to have that door closed, 

although that door was open for a thirty-minute period at the 

time that the citation was issued. There was a question as 

to whether the door and the chain constituted a substantial 

bulkhead. I find that because the door was provided, and 

because this matter does involve that question, a reduction in penalty to $128.00 is appropriate in connection with 

Citation No. 367106, and I assess a penalty of $128.00 for 

that citation. 

Citation No. 367107 alleged a man was observed riding 

the edge of the bucket while being hoisted out of a shaft. 

The Secretary of Labor alleges that this constituted a violation of a mandatory safety standard at 30 C.F.R. § 57.19-68, 

which reads: "Men shall enter, ride, and leave conv-eyances 

in an orderly manner." The parties indicate that at the time 

the citation was issued the inspector observed a man riding 

the edge of a bucket and the four men who were riding the bucket jumped out of the bucket before the door had closed. 

Respondent contended that it did not feel that sitting on the 

edge of the bucket and jumping out, in this case, was disorderly. Another standard at 30 C.F.R. § 57.19-74 reads: 

1927 
"Men should not ride the bail, rim, or bonnet of any shaft 

conveyance, except where necessary for the inspection and 

maintenance of the shaft and lining,." This standard is not 

mandatory. It is advisory. I think Respondent now realizes 

that this conduct was a violation and upon considering all 

the criteria in connection with this citation, including 

rapid, good faith compliance, I will accept the settlement 

and agree to the proposed penalty of $157.00, and I assess 

a penalty in that amount for Citation No. 367107. 

I hereby affirm this bench decision. 

ORDER 

Respondent is ORDERED to pay $444 in penalties within 30 days of the 

date of this Order. 

Distribution: 

#--:- /. /.1.i--.. ...-z_~ -- Edwin s. Bernstein 

Administrative Law Judge 

Michele M. Fox, Attorney, Office of the Solicitor, u.s Department of 

Labor, Eighth Floor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

M,. L. Hahn, Safety and Industrial Relations Director, Ozark-Mahoning 

Company, Rosiclare, IL 62982 (Certified Mail) 

1928 
FEDERAL _MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

2 5 JUL 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. A.O. Control Nos. 

Petitioner 

LAKE 79-238 11-00588-03041 

LAKE 79-239 11-00588-03044 

OLD BEN COAL COMPANY, LAKE 79-251 11-00588-03042 

Appearances: 

Before: 

Respondent LAKE 79-252 __ ll-00588-03043 

Mine No. 21 

LAKE 79-240 11-00589-03039 

LAKE 79-241 11-00589-03041 

LAKE 80-40 11-00589-03043 

LAKE 80-80 11-00589-03045 

Mine No. 24 

LAKE 79-242 11-02392-03020 

LAKE 80-66 11-02391;-03022 

LAKE 80-81 11-02392-03024 

Mine No. 25 

LAKE 79-243 11-00590-03040 

LAKE 79-244 11-00590-03044 

Mine No. 26 

DECISION 

William c. Pasternack, Esq., ~nd Miguel J. Carmona, Esq., 

Office of the Solicitor, u.s. Department of Labor, Chicago, 

Illinois; Robert Cohen, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, for the 

Petitioner; 

Robert J. Araujo, Esq., Chicago, Illinois, for the 

Respondent. 

Judge Edwin s. Bernstein 

On March 18 and 19, 1980, a hearing was held in Chic ago, Illinois, to 

determine if, as alleged in 17 citations referred to in these 13 consolidated 

1929 
docket nwnbers, Respondent violated the Federal Mine Safety and Health Act of 

-~ ' - -- 1977 (the Act) and the regulations in Volume 30, Code of Federal Regulations 

(C.F.R.), and, if so, what penalties should be assessed in accordance with the 

criteria set forth in Section llO(i) of the Act. 

The parties stipulated, and I find, that: 

1. Four of Respondent's mines are the subject of the 

citations involved in these proceedings. They are Mine 21, 

Mine 24, Mine 25, and Mine 26. 

2. Each of these mines is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977, and I have 

jurisdiction over this matter. 

3. The inspectors who issued the citations gifd-order 

were duly authorized representatives of the Secretary of 

Labor and properly served the citations on Respondent. 

4. Respondent is an average size operator. 

5. The mines listed above are large mines in terms of 

production. 

6. Respondent has an average history of previous 

violations. 

7. If a violation is found, the amount of penalty proposed by Petitioner for· each item in issue will not affect 

Respondent's ability to remain in business. 

The citations were heard in the following order: 

1. Citation No. 776637, contained in Docket No. LAKE 

80-66, which alleged that Respondent violated the standard 

at 30 C.F.R. § 75.520. 

2. Citation No. 777024, contained in Docket No. LAKE 

80-80, which alleged that Respondent violated the standard 

at 30 C.F.R. § 70.210(b) in failing to take respirable dust 

samples. 

3. Citation No. 773508, contained in Docket No. LAKE 

79-238, which alleged that Respondent violated the standard 

1930 
at 30 C.F.R. § 70.lOO(b) in connection with respirable dust 

samples take.n.at-Res-pondent's mine-by Petitioner's inspector. 

4. The citations contained in the remaining docket 

numbers, in which Petitioner alleged that Respondent violated the standard at 30 C.F.R. § 70.lOO(b) in connection 

with respirable dust samples which were taken by Respondent. 

Harold Pearce testified for Petitioner and GeoTge Verley testif~ed for 

Respondent in connection with Citation No. 776637. Wolfgang Kaak testified 

for Petitioner and Michael T. O'Day testified for Respondent in connection 

with Citation No. 777024. Kirby Webb and Mary Nowakowski testified for 

Petitioner in connection with Citation No. 773508. Thomas Tomb, David 

Stritzel, and Paul Parobeck testified for Petitioner in connection with the 

remaining citations. 

Citation No. 776637 

The standard allegedly violated, 30 C.F.R. § 75.520, reads: "All electric equipment shall be provided with switches or other controls that are 

safely designed, constructed, and installed." 

Citation No. 776637 describes the following condition or practice: 

The distribution box at the bottom of "B" shaft -was not 

safely'designed and constructed in that it contained no apparatus to monitor the grounding circuit and the receptacles 

were not arranged for the ground conductor to be broken last. 

The distribution box was serving a pump at the shaft sump and 

a car puller. Terry Earhart (maintenance foreman) is supervised by Dan Wilkerson, chief elect. The primary power on 

box is 480 VAC. 

Harold Pearce, the MSHA inspector who issued the citation, testified 

that the box was approximately three feet long, three feet wide, 12 to 

1931 
18 inches deep, and was hung on a wall about three feet off the ground. 

The box contained- circ~it breakers and one micro switch which was incorporated into the receptacle. Mr. Pearce testified that in his opinion the 

box was not safely designed because it was not installed with the necessary 

safety controls. He stated that the box should have had a ground-monitoring 

system, which is a fail-safe system that prevents the system from being 

energized. Such a system serves as a control device, but is not used to 

turn off the power manually. 

Mr. Pearce testified that the box was located in a five-foot-wide 

passageway at the underground base of a lift, and that app~oximately 305 men 

were required to pass through this passageway when going to their jobs and 

when leaving at the end of the shift. Because of this location and the shock 

hazard presented by the lack of a ground monitoring system, he considered the 

box to be unsafe. 

George Verley, the safety director at the mine, testified that the box · 

furnishes power to the sump pump and the lift. He agreed that the box had no 

ground check circuit to break the power if there was a ground failure. He 

explained that the box was operated automatically, and that there were no 

manually operated switches or controls on it. 

In its excellent posthearing brief, Respondent conceded that the condition alleged by MSHA existed. However, Respondent challenged the applicability of the cited standard to this condition, and claimed that the citation 

was insufficiently specific to support a finding of violation. 

1932 
Respondent contended that "[t]he condition cited by Inspector Pearce 

focuses on the gro"Und -.ch~ck ;~nitoring circuit which is neither a switch 

nor a control required by § 75.520." Respondent's Brief at 12. Respondent 

cited various dictionary definitions of the term "switch" to support its 

contention that "the switches or other controls to which § 75.520 refers are 

devices used to energize or deenergize the power in a piece of electrical 

equipment." Id. at 13; emphasis in original. Respondent argued that the 

terms "control" and "switch" are synonymous. Old Ben urged that since a 

ground check monitoring circuit is an automatic safety device, rather than 

a manually operated device, it is not a "switch or other control." 

I accept the basic definition of a switch as a device which energizes or 

deenergizes the power in a piece of electrical equipment. However, I do not 

believe that a device which would otherwise be classified as a switch ceases 

to be so classified simply because it operates automatically. Respondent 

£°ailed to provide any explanation for the words "or other controls" after the 

word "switches" in Section 75.520, aside from the conclusory assertion that 

the terms are synonymous. I believe that the phrase "or other controls" is 

sufficiently broad to include automatically operated controls, such as the 

circuit breakers in this case. This remedial standard is to be liberally 

interpreted to better effectuate the remedial purposes and policies of the 

underlying statute. 1/ The standard refers, inter alia, to devices which 

deenergize a piece of electrical equipment. A ground check monitoring 

circuit does precisely that. Accordingly, I find that this device is covered 

by Section 75.520. 

!:../ See cases cited in note 10, infra, and accompanying text. 

1933 
Respondent's second argument was that the citation must be vacated 

because it does not describe with sufficient particularity the nature of the 

violation. Respondent argued that the citation refers not to the language 

of Section 75.520, but rather to 30 c.F.R. I 75.902. That standard provides, 

in pertinent part, that "low-- and medium-voltage resistance grounded systems 

shall include a fail•safe ground check circuit to monitor continuously the 

grounding circuit to assure continuity which ground check circuit shall cause 

the circuit breaker to open when either the ground or pilot check wire is 

broken * * *•" It adds that "[c] able couplers shall be constructed so 

that the ground check continuity conductor shall be broken first and the 

ground conductors shall be broken last when the couprer-is being uncoupled." 

I agree with Respondent that the language of the citation more closely 

resembles Section 75.902 than Section 75.520. However, I do not believ~ that 

this renders the citation fatally defective. The issue here is not whether 

MSHA could have cited a "better" standard in its citation, but whether 

Respondent violated the standard which was cited. 1/ 

1./ As the Commission held in Secretary of Labor, Mine Safety and Health 

Administration (MSHA) v. Jim Walter Resources Inc. and Cowin and Com an , 

1 FMSHRC Dees. No. 8 at 1827 1979 , even if the notice of violation does 

not sufficiently specify the standard violated, the notice is not necessarily invalid. The Commission explained: 

The primary reasons compelling the statutory mandate of 

specificity is [sic] for the purpose of enabling the operator 

to be properly advised so that corrections can be made to 

insure safety and to allow adequate preparations for any 

potential hearing on the matter. We find that these purposes 

of section 104(e) have been satisf1ed here. The operators do 

not claim any difficulty in being able to identify and thereby 

abate the allegedly violative condition. Nor does it appear 

that either Jim Walter or Cowin was deprived of notice suffi~ 

cient to enable them to defend at hearing. They did not / 

I 

1934 
The uricontroverted testimony of the MSHA inspector indicated that the 

-~ > -- --

distribution box in question was not safely designed and constructed. Therefore, Respondent violated 30 C.F.R. § 75.520 as alleged. 

As stipulated to by the parties, Respondent was an average size operator; 

however, the mine in question was large, Respondent had an average history of 

previous violations, and payment of the penalty reconunended would not affect 

Respondent's ability to continue in business. With respect to negligence, I 

find that the operator should have been aware of the condition. As to gravity, the inspector testified that 305 men were exposed to the shock hazard 

created by this violation. Finally, I note that the condition was rapidly 

abated.. Upon consideration of these criteria, I assess a penalty of $250. 

fn. 2 (continued) 

request more specific notice of the alleged violations in prehearing motions, nor did they request a continuance when evidence 

regarding alleged noncompliance with specific ANSI standards 

was introduced at the hearing. Instead, they defended on the 

merits. The operators did not claim prejudice in preparing a 

defense until the post-hearing brief where the claim appears in 

a perfunctory footnote. 

To the same effect is the following statement made by the u.s. Court of 

Appeals for the District of Columbia Circuit in National Realty and Construction Company, Inc. v. Occuyational Safety and Health Review Commission, 489 F.2d 1257, 1264 0974 : __ 

So long as fair notice is afforded, an issue litigated at an 

administrative hearing may be decided ey the hearing agency 

even though the formal pleadings did not squarely raise the 

issue. This follows from the familiar rule that administrative 

pleadings are very liberally construed and very easily amended. 

The rule has particular pertinence here, for citations under 

the 1970 Act are drafted by non-legal personnel, acting with 

necessary dispatch. Enforcement of the Act would be crippled 

if the Secretary were inflexibly held to a narrow construction 

of citations issued by his inspectors. [Footnotes omitted.] 

. 1935 
Citation No. 777024 

Petitioner contended that Respondent violated the standard at 30 C.F.R. 

§ 70.210, which requires operators to take respirable dust samples and forward 

them to MSHA under ·cert.ain defined conditions. Respondent did not take and 

forward to MSHA any samples for the period between March 30, 1979 and May 9, 

1979 for Section 098 at Mine No. 24, although Petitioner directed Respondent 

to take such samples for this period of time. Respondent's defense was that 

it was not required to take the samples pursuant to 30 C.F.R. § 70.210 because 

a sufficient number of "normal production shifts" did not take place between 

these two dates. 

Wolfgang Kaak, the MSHA inspector who served the citation, testified 

that from March 29, 1979 to April 18, 1979, this section was producing coal, 

but from April 19, 1979 through May 9, 1979, it was idle due to a roof fall. 

He stated that MSHA required dust samples to be taken on all production 

shifts, and that MSHA's computer would void those samples which were taken 

during shifts when production was significantly below normal. 

Michael O'Day, Respondent's chief mine inspector, identified Respondent's Exhibits 1 through 37. Exhibits 1 through 7 were Respondent's monthly 

production summaries for Mine 24 from September 1978 through March 1979. 

These records proved that Respondent's average production for the period from 

November 1978 through March 1979 was 42.67 shuttle cars of coal per shift. 

Exhibits 8 through 37 were daily production reports which showed the number 

of shuttle cars of coal produced during each shift from March 30, 1979 through 

May 9, 1979. This evidence proved that there were only five days during this 

period when more than 42.67 shuttle cars of coal were produced during one or 

1936 
more shifts. These were (a) March 30, when one shift produced 51 shuttle 

cars; (b) April 3, when 60 shuttle cars were produced during one shift; (c) 

April 5, when 61 shuttle cars were produced during one shift; (d) April 6, 

when 50, 47, and 45 shuttle cars of coal were produced during three shifts; 

and (e) April 10, when 60 shuttle cars were produced during one shift. 

The standard in question reads: 

Section 70.210 Original sampling cycle; establishment 

of basic sample. 

(a) Samples of respirable dust with respect to each 

working section of a coal mine shall be taken on 10 consecutive normal production shifts, each of which is worked on a 

separate calendar day, beginning with a normal production 

shift completed on or after December 30, 1972, except that, 

with respect to working sections located in multisection 

mines, original sampling may be conducted in accordance with 

the provisions of § 70.241 of this part. An original sampling cycle shall be begun with respect to each working section of a coal mine no later than the 11th day upon which 

normal production shifts are worked in that section. For each 

working section, this series of 10 samples, or a series of 

10 samples submitted in accordance with the provisions of 

§ 70.230 of this part, shall constitute the basic sample with 

respect to that working section. 

(b) Where a working section is opened after December 30, 

1972, the original sampling cycle required in accordance with 

the provisions of paragraph (a) of this section shall be 

begun on a normal production shift (as defined in § 70.220) 

on the· first production day in such working section andthereafter on consecutive production shifts (as defined in 

§ 10.220). 

Respondent contended that it did not violate the standard because "there 

were not a sufficient number of normal production shifts (each of which is 

worked on a separate calendar day) in which it could have obtained the requisite number of dust samples (ten) prior to May 9, 1979 when the citation was 

issued." Respondent's Brief at 21.. 

1937 
Respondent contended that the critical phrase in 30 C.F.R. § 70.210 is 

"normal production shift." This term is defined at 30 C.F .R. § 70.220(b)( 1) 

as follows: 

( 1) "Normal production shift" (as differentiated from a 

maintenance shift) means a shift during which the amount of 

coal produced in a working section is representative of the 

average amount of coal produced in such working section during all production shifts worked during the life of such 

working section or during the six months immediately preceding such production, whichever· is the shorter period. With 

regard to a new working section, a "normal production shift" 

means a shift during which the amount of coal produced is 

comparable to the amounts produced during normal production 

shifts in other comparable working sections. 

Respondent argued that it had, at most, only five--Ii~~al production 

shifts between March 30 and May 9, 1979. I am unable to accept Respondent's 

reasoning. The definition of "normal production shift" at 30 C.F .R. 

§ 70.220(b)(l) speaks of a shift during which coal production is representative of the average production in the section during either the life of the 

section or the six-month period immediately preceding such production. The 

definition does ~ require that coal production be equal to or greater than 

the relevant average. Respondent's argmnent is based on Mr. O'Day's testimony 

as to the nmnber of shifts "which met or surpassed- the· average production" 

during one of the periods specified in the definition. See Respondent's Brief 

at 25. Respondent's challenge is thus based on an incorrect interpretation 

of the phrase "representative of" in Section 70.220(b) ( 1). 

Nevertheless, I believe that this citation must be vacated. I find that 

there were not ten shifts during the relevant period when production on the 

section was "representative of" the 42.,67 shuttle car average over ·the previous six months. Admittedly, on each of the five days listed above, 

1938 
production on one or more shifts surpassed the 42.67 car average. There 

was thus at least one "normal production shift" on each of these days. 

Further, on April 9, 1979, when one shift produced 42 cars of coal, there 

was a "normal production shift." There also may have been a "normal production shift" on April 4, 1979, when 37 cars were produced on one shift. This 

would bring the total number of "normal production shifts, each of which 

is worked on a separate calendar day," to seven. During the remainder of 

the period under scrutiny, all working shifts on the section yielded between 

10 and 28 shuttle cars of coal. I do not find that production on any of 

these shifts was "representative of" the 42.,67 shuttle car average figure. 

Thus, at best, the section had seven "normal production--shifts, each of 

which is worked on a separate calendar day." The regulation states that 10 

such shifts must take place before an operator's duty to establish a basic 

sampling cycle arises,. Since no duty arose on Respondent's part, there was 

no violation of 30 C.,F.R. § 70.210. Therefore, Citation No. 777024 is 

VACATED. 

The 15 Citations Issued Pursuant to 30 C.F.R. § 70.lOO(b) 

The remaining 15 citations involved Petitioner's contention that the 

cumulative concentration of respirable dust in Respondent's mine areas 

exceeded allowable levels as those levels are defined in 30 C.F .R. 

§ 70,.lOO(b). That standard reads: 

Effective December 30, 1972, each operator shall continuously 

maintain the average concentration of respirable dust in the 

mine atmosphere during each shift to which each miner in 

the active workings of such mine is exposed at or below 

2.0 milligrams of respirable dust per cubic meter of air. 

1939 
lhesamples which resulted in the issuance of. Citation No. 773508, 

in Docket No. LAKE 79.:.'23~, were taken by the MSHA inspector, while the samples which resulted in the issuance of the other 15 citations were taken by 

Respondent and evaluated at Petitioner's laboratory. 

Respondent's only evidence with regard to these citations consisted of 

Petitioner's responses to its requests for admissions. 1/ Respondent's 

defense was that, as a matter of law, the Secretary of Labor's procedures 

and regulations do not comply with the applicable statutes. 

]./ Request No. 1 read: "lhe Secretary and the Secretary of Health, Education and Welfare, as of October 8, 1979, have not approved. any device for the 

taking of accurate samples of respirable dust in the miiie atmosphere to which 

each miner in the active workings is exposed." 

Petitioner's answer to that request read as follows: 

Denied. lhe Secretary of Interior and the Secretary of 

Health, Education and Welfare approved devices for taking 

accurate samples. Pursuant to Section 301(c)(2) of the Amendments Act, 30 U.S.C. § 30l(c)(2), the devices approved by the 

Secretary of Interior remain in effect until modified by the 

Secretary of Labor. 

Request No. 2 read: "lhe Secretary and the Secretary of Heal th, Ed ucation and Welfare, as of October 8, 1979, have not approved a device for 

measuring respirable dust." 

Petitioner's answer to that request read as follows: 

Denied. lhe Secretary of Interior and the Secretary of 

Health, Education and Welfare have approved devices for 

measuring respirable dust. Pursuant to Section 301(c)(2) of 

the Amendments Act, 30 U.S.C. § 96l(c)(2), the devices remain 

in effect until modified by the Secretary of Labor. 

1940 
find: 

With regard to these citations, the parties further stipulated, and I 

8. The respirable dust samples upon which the citations were based were taken with MSA (Mine Safety Appliance) 

Model G respirable dust sampling devices. These devices were 

initially approved for use by the Secretary of the Interior 

and the Secretary of Health, Education, and Welfare under 

30 C.F.R. Part 74 and said approval has not been withdrawn or 

rescinded. 

9. With the exception of Citation No. 773508 (Docket 

No. LAKE 79-238) all respirable dust samples were taken by 

Respondent through duly authorized and trained personnel 

pursuant to 30 C.F.R. Part 70. 

10. Citation No. 773508 (Docket No. LAKE 79-238) was 

based upon samples taken by an MSHA inspector during the 

course of an inspection. 

11. All respirable dust samples collected by Respondent 

were taken with properly calibrated and functioning MSA 

Model G devices. The samples were properly sealed and mailed 

to the MSHA laboratory in Pittsburgh, Pennsylvania. 

12. Citation No. 9940663 (Docket No. LAKE 79-238) was 

issued on February 1, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 

10 samples collected indicated an average concentration of 

2.24 milligrams of dust per cubic meter of air in the working 

environment of the high risk occupation in Section 048-0 of 

Mine No. 21. 

13. Citation No. 773508 (Docket No. LAKE 79-238) was 

issued on April 11, 1979, and is based upon three samples 

taken by the inspector to determine compliance with the 

respirable dust standard set forth at 30 C.F.R. § 70.lOO(b). 

The samples collected indicated an average concentration of 

3.6 milligrams of dust per cubic meter of.air in the working 

environment of the shear operator in Section 090 of Mine 

No. 21. 

14. Citation No. 9940684 (Docket No. LAKE 79-239) was 

issued on April 5, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 10 

samples collected indicated an average of 2.17 milligrams 

of dust per cubic meter of air in the working environment of 

the high risk occupation in Section 100-0 of Mine No. 21. 

1941 
15. Citation No. 9940664 (Docket No. LAKE 79-240) was 

issued on February 1, 1979, and is based upon six respirable 

dust samples-taken-pursuant to 30 C.F.R. Part 70. The six 

samples had a cumulative concentration of 23.7 milligrams of 

dust per cubic meter of air in the working environment of the 

high risk occupation in Section 97-0 of Mine No. 24. 

16. Citation.No. 9940688 (Docket No.· LAKE 79-240) was 

issued on April 13, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 10 

samples collected indicated an average concentration of 

2.17 milligrams of dust per cubic meter of air in the working 

environment of the high risk occupation in Section 88-0 of 

Mine No. 24. 

17. Citation No. 9940693 (Docket No. LAKE 79-241) was 

issued on May 2, 1979, and is based upon nine respirable dust 

samples taken pursuant to 30 C.F.R. Part 70. The nine 

samples collected indicated a cumulative concentration of 

25.4 milligrams of dust per cubic meter of air in the working 

environment of the high .risk occupation in Section 99-0 of 

Mine No. 24. 

18. Citation No. 9940694 (Docket No. LAKE 79-241) was 

issued on May 17, 1979, and is based upon 10 respirable dust 

samples taken pursuant to 30 C.F.R. Part 70. The 10 samples 

collected indicated an average concentration of 2.ll milligrams of dust per cubic meter of air in the working environment of the high risk occupation in Section 84-0 of Mine 

No. 24. 

19. Citation No. 9940674 (Docket No. LAKE 79-242) was 

issued on February 22, 1979, and is based upon nine respirable dust samples ·taken pursuant to 30 C.F.R. Part 70. The 

nine samples collected indicated a cumulative concentration 

of 21 milligrams of dust per cubic meter of air in the working environment of the high risk occupation in Section 10-0 

in Mine No. 25. 

20. Citation No. 9940690 (Docket No. LAKE 79-243) was 

issued on April 18, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 

10 samples collected had an average concentration of 

2.52 milligrams of dust per cubic meter of air in the working 

environment of the high risk occupation in Section 002-0 of 

Mine No. 26. 

21. Citation No. 9940689 (Docket No. LAKE 79-244) was 

issued on April 13, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 

1942 
10 ~amples collected had an average concentration of 

2 .52 milligrams of dust per cubic meter of air in the working environmeritof-the high risk occupation in Section 081-0 

of Mine No. 26. 

22. Citation No. 9940678 (Docket No. L~E 79-251) was 

issued on March 14, 1979, and is based upon nine respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The nine 

samples had a cumulative concentration of 21.0 milligrams of 

dust per cubic meter of air in the working environment of the 

high risk occupation in Section 104-0 of Mine No. 21. 

23. Citation No. 9940659 (Docket No. LAKE 79-252) was 

issued on January 22, 1979, and is based upon five respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The five 

samples had a cumulative concentration of 26.5 milligrams of 

dust per cubic meter of air in the working environment of the 

high risk occupation in Section 70-0 of Mine No. 21. 

24. Citation No. 9940706 (Docket.No. LAKE 80-40) was 

issued on June 26, 1979, and is based upon 10 respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The 10 

samples had an average concentration of 2.15 milligrams of 

dust per cubic meter of air in the working environment of 

the high risk occupations in Section 017-0 of Mine No. 24. 

25. Citation No. 9940700 (Docket No. LAKE 80-66) was 

issued on June 4, 1979, and is based upon 10 respirable dust 

samples taken pursuant to 30 C.F.R. Part 70. The 10 samples 

had an average concentration of 2.16 milligrams of dust per 

cubic meter of air. 

26. Citation No. 9940703 (Docket No. LAKE 80-81) was 

issued on June 18, 1979, and is based upon nine respirable 

dust samples taken pursuant to 30 C.F.R. Part 70. The nine 

samples had a cumulative concentration of 26.6 milligrams of 

dust per cubic meter of air. 

27. Although Respondent has stipulated to the- average 

concentration of dust per cubic meter of air found in the 

samples collected and used by Petitioner as the basis for 

the citations in issue, Respondent does not stipulate that 

said samples establish violations of the Act or that the 

dust collected and weighed is respirable and has a causal 

relationship to pneumoconiosis. 

1943 
With regard to Citation No. 773508, which involved samples taken by an 

MSHA inspector ~-Pet-itio-ner-1 s witnesses were the MSHA inspector and the MSHA 

lab technician who calibrated the sampler. 

Mr. Kirby Webb, an MSHA coal mine inspector based at the Benton, 

Illinois, office, testified that he took samples at Respondent's Mine No. 21, 

Section ID90, on April 5, April 9, and April 10, 1979. This was a working 

section on which a longwall mining machine was used. For sampling, Mr. Webb 

utilized an MSA Model G dust sampler on each occasion. On each date, he 

took five samplers into the mine at the beginning of the shift. Before 

bringing the samplers into the mine, they were calibrated by Mary Nowakowski, 

--- an MSHA lab technician at the Benton office. At the start of the shift, 

before distributing the samplers, Mr. Webb checked the air flow and adjusted 

it by use of a screw provided for that purpose. He sampled at five locations 

on the shift, placing samplers near the shear operator, jack man, shuttle 

car operator, repairman, and at a fifth location that he does not recall. 

The samplers were placed approximately three feet from the working face. 

Each sampler remained in the section during the eight hour shift, except 

for possibly half an hour when, if the individual_who had the sampler went 

to lunch, he might have taken it with him. Mr. Webb returned to the section 

to check the devices approximately three times. 

At the end of the shift, around 3:50 p.m., Mr. Webb collected the samplers. He returned to his office and removed the cassettes from the pumps, 

dried the cassettes by use of a desiccator, weighed the samples, and noted 

the net weight gain of each one. He then put the samples in a plas.tic bag 

and left' them to be mailed for testing. 

1944 
Mary Nowakowski testified that she was a mining and engineering technician at MSHA' s Benton-.of-fie-e. She described her duties as to "calibrate 

and maintain the personal dust samplers and • • • maintain records on the 

maintenance and calibration of each pump, and ••• weigh and record the 

samples collected on the dust pumps." She stated that she examines any 

samples which have a weight gain of "1.8 or greater" under a microscope to 

check for oversized particles, and then sends the samples to the Pittsburgh 

Technical Support Center for quartz analysis. She also testified that she 

desiccates and weighs certain operators' samples. 

Thomas F. Tomb testified that he is a supervisory physicist in the dust 

branch of the Pittsburgh Technical Support Center. Thisf~cility processes 

all dust samples that are collected by coal mine operators in the continental 

United States. He has considerable experience in respirable dust research, 

and has authored a number of professional publications on the_ subject. 

Mr. Tomb focused his testimony on the use of the MSA Model G unit. He stated 

that this device, which was used to establish the violations in these cases, 

was approved by the National Institute for Occupational Safety and Health 

of the Department of Health, Education, and Welfare for performance, and 

by the Department of the Interior for intrinsic safety (i_.~., to ascertain 

whether it would be safe to use in explosive atmospheres). 

The personal sampler which was submitted into evidence consists of a 

pump which is worn on the miner's belt and a collection unit which is worn 

on the miner's chest connected by a rubber hose. 4/ Mr. Tomb described the 

!!:_/ A personal sampling unit is worn by the individual miner during a working shift to measure the amount of dust to which he is exposed. Personal 

1945 

f:' 
relative_efficiency of personal samplers and MRE devices in screening out 

dust particles which-·are-too large to be respirable. In support of this 

testimony, Petitioner introduced into evidence a graph which depicted the 

percentage of various sized dust particles which will be collected by these 

two devices, and compared these percentages with the accepted percentages 

of similarly sized particles which will be deposited in the lungs after being 

inhaled. See Petitioner's Exhibit 24, attached as an Appendix to this Decision. Mr. Tomb stated that in his opinion, the MSA Model G represented "the 

state of the art" in personal respirable dust sampling equipment. 

fn. 4 (continued) .-

units are to be distinguished from units such as the MRE-Gravimetric Dust 

Sampler, developed by the Mining Research Establishment of England's National 

Coal Board. The latter device is considerably larger in size and is placed 

in a particular area of the mine, rather than worn by an individual min~r. 

In Eastern Associated Coal Corporation, 7 IBMA 14, 30 (1976), the 

Interior Board of Mine Operations Appeals described the operation of a 

personal air sampler as follows: 

* * * This device is a unit which is purchased by an operator 

and worn by the individual miner. Each device is supposed to 

duplicate the behavior of the human ·respiratory system which 

draws in air, filters larger particulates, and allows others 

to reach the lungs. Air is drawn into a sampler by a pump and 

battery-driven motor. It passes through a nylon cyclone 10 mm. 

in diameter which is supposed to separate the respirable from 

the nonrespirable particulates. Theoretically, only the former 

reaches the filter where the particulates are captured. The 

filter is the analog of the lobes of a human lung. --

The manufacturer of the personal air sampler weighs each 

filter before sealing it in the device and records the weight 

on an attached data card. After the sample is collected, the 

sampler is forwarded to a MESA laboratory. * * * 

At the laboratory, each sampler is opened and among other 

things the filter is weighed so that a comparison can be made 

with the weight recorded on the data card by the manufacturer. 

Theoretically, the result reflects the weight of the particulates which were being deposited on the lungs of the wearer of 

the sampler at the time the sample was taken. 

1946 
Mr. Tomb discussed the various "sampling cycles" which the regulations 

require MSHA to einploy_.in--0r-der to determine compliance with the respirable 

dust standard at 30 c.F.R. § 70.lOO(b). He was asked whether a violation 

of Section 70.lOO(b) could be established on the basis of fewer than 10 

samples. He replied in the affirmative, explaining that the regulations 

require compliance with the 2.0 milligram standard as an average over 10 

shifts. Thus, once the cumulative concentration of dust in a set of samples 

exceeded 20 milligrams, a violation would be established. For example, one 

of the citations involved in these cases was based upon only six samples. 

The cumulative weight of the dust in these samples was 23.7 milligrams. Mr. 

Tomb justified the issuance of the notice of noncomplianc~ in this case by 

stating that "if you added the other four samples, assuming that the concentration of those four samples was zero, and divided the cumulative concentration by ten, you still would have exceeded the respirable dust standard of 

2.0 milligrams per cubic meter." Mr. Tomb was unaware of any statutory or 

regulatory authority which provided for a determination of compliance or 

noncompliance with the standard on the basis of fewer than 10 samples, but. he 

stated that such a procedure is set forth in the MSHA inspector's manual. 2_/ 

Paul Parobek, a supervisory chemist for MSHA who directs a laboratory 

that process.es dust samples, also testified. He described the procedures 

which his facility employs for determining whether dust samples comply with 

5/ At the hearing, Respondent indicated that it would challenge the Secretary' s compliance with his own regulations in issuing citations which were 

based on fewer than ten samples. However, after the hearing, Respondent 

withdrew this issue from its contest. 

1947 
the standard. In brief, the personal sampler units collect respirable dust 

on a filter whicli-is-encapsulated in a plastic cassette. The cassette is preweighed before being used in the sampler. After it is used for a complete 

.working shift, it is returned to the laboratory, place~ in a desiccator to 

remove any accumulated moisture, and reweighed. By comparing the weights 

before and after sampling, the amount of respirable dust to which the miner 

was exposed during the shift can be determined. Procedures also exist for 

determining whether a particular sample may have been contaminated by oversized particles. These procedures involve a microscopic examination of the 

sample with a special device which allows the laboratory technician to 

recognize oversized particles. 

Pet~tioner's final witness, David Stritzel, stated that he is a supervisory coal mine technical specialist with MSHA. His duties include managing 

a group of engineers and other specialists who work in the fields of respirable dust, noise control, roof control, ventilation, and certain enforcement 

activities relating.to electrical problems. He testified that he was familiar 

with Respondent's operations.in Illinois, and that in his opinion, Respondent 

had the worst record of any company in the Benton subdistrict of compliance 

with the respirable dust standards. 

Applicable Statutes and Regulations 

Section 202(e) of the Federal Coal Mine Health and Safety Act of 1969 

(the 1969 Act) provided, prior to amendment: 

References to concentrations of respirable dust in this 

t1tle means the average concentration of respirable dust if 

1948 
measured with an MRE instrument or such equivalent concentrations if measured with another device approved by the Secretary and toe Secretary of Health, Education, and Welfare. As 

used in this title, the term "MRE instrument" means the 

gravimetric dust sampler with four channel horizontal elutriator developed by the Mining Research Establishment of the 

National Coal Board, London, England. 

Section 318(k) of the 1969 Act provided, prior to amendment: 

For the purpose of this title and title II of this Act, 

the term -

* * * * * * * 

(k) "respirable dust" means only dust particulates 5 microns 

or less in size * * * 

Section 202 of the Federal Mine Safety and Heal~b-Amendments Act of 

1977 (the Amendments Act) reads: 

(a) Section 202(e) of the Federal Coal Mine Health and 

Safety Act of 1969 is amended to read as follows: 

"(e) References to concentrations of respirable dust in 

this title mean the average concentration of respirable dust 

measured with a device approved by the Secretary and the 

Secretary of Health, Education, and Welfare." 

(b) Section 318(k) of the Federal Coal Mine Health and 

Safety Act of 1969 is repealed. 

Section 30l(c)(2) of the Amendments Act reads: 

All orders, decisions, determinations, rules, regulations, permits, contracts, certificates, licenses, and privileges (A) which have been issued, made, granted, or allowed 

to become effective in the exercise of functions which are 

transferred under this section by any department or agency, 

any functions of which are transferred by this section, and 

(B) which are in effect at the time this section takes 

effect, shall continue in effect according to their terms 

until modified, terminated, superseded, set aside, revoked, 

or repealed by the se·cretary of Labor, the Federal Mine 

1949 
Safety and Health Review Commission or other authorized 

officials, by any court of competent jurisdiction, or by 

operatiori.._Df _law.- --

Section 307 of the Amendments Act reads: 

Except as otherwise provided, this Act and the amendments 

made by this Act shall take effect 120 days after the date of 

enactment of this Act. * * * The amendment to the Federal 

Coal Mine Health and Safety Act of 1969 made by section 202 

of this Act shall be effective on the date of enactment. 

Section 202(b)(2) of the 1977 Act reads: 

Effective three years after the date of enactment of 

[the 1969 Coal Act], each operator shall continuously 

maintain the average concentration of respirable ciust in 

the mine atmosphere during each shift to which-e;ch miner 

in th_e active workings of such mine is exposed at or below 

2.0 milligrams of respirable dust per cubic meter of air. 

Section 202(e) of the 1977 Act ~eads: 

References to concentrations of respirable dust in this 

title mean the average concentration of respirable dust 

measured with a device approved by the Secretary and Secretary 

of Health, Education, and Welfare. 

30 C.F.R. § 70.lOO(b) reads: 

Effective December 30, 1972, each operator shall continuously maintain the average concentration of respirable dust 

in the mine atmosphere during each shift to which each miner 

in the active workings of such mine is exposed at or below 

2.0 milligrams of respirable dust per cubic meter of air. 

Decision for the Citations Issued Pursuant to 30 C.F.R. § 70.IOO(b) 

Respondent argued that there is no valid respirable dust program 

because t~e 1977 Act specifically delegated the authority to approve 

1950 
respirable dust measuring devices to the Secretary of Labor and the Secretary 

of Health, Education, ·anC:l Welfare, and since the Secretary of Labor has not 

done this, "the fundamental requirement of Section 202(e) [of the 1977 Act] 

has not been met." Respondent's Brief at 35, 42. I disagree. 

The 1969 Act contained two definitions of respirable dust. Section 

202(e) stated: 

References to concentrations of respirable dust in this 

title means the average concentration of respirable dust if 

measured with an MRE instrument or such equivalent concentrations if measured with another device approved by the Secretary and the Secretary of Health, Education, and Welfare 

* * * 6/ 

Section 318(k) of the 1969 Act stated, '"respirable dust' means only dust 

particulates 5 microns or less in size***·" 

In Eastern Associated Coal Corporation, Docket No. MORG 73~131-P ~al. 

(December 16, 1974), the contractor challenged the dust program which the 

Department of the Interior developed after the 1969 Act, alleging that the 

statutory definitions were inconsistent. Eastern claimed that the MRE 

instrument and other instruments approved by the Secretaries of the Interior 

and Health, Education and Welfare and used as a basis for such citations did 

not screen out particulates larger than five microns in size. Judge Moore 

agreed and vacated the citations based upon his finding "that the instruments 

do collect particles larger than the statutory definition of respirable dust.'' 

~/ Section 3(a) of the 1969 Act defined "Secretary" as "the Secretary of 

the Interior or his delegate." 

1951 
On appeal, the Interior Board of Mine Operations Appeals (IBMA) first 

reversed Judge &.ore.!.s- dec-i-sion (see 5 IBMA 185 (1975)), but then affirmed 

it upon reconsideration (see 7 IBMA 14 (1976)). The decision applied to the 

MRE instrument as well as two personal samplers approved by the two 

Secretaries. 

The Board stated: 

On the basis of the record as described above, we find 

that MESA has been systematically ignoring the legislative 

definition of the term "respirable dust" as meaning "* * * 

only dust particulates 5 microns or less in size." * * * 

[I]t follows that the data memorialized in these notices, 

purporting to show alleged concentrations of ''respirable 

dust," represent as well the weight of some parti~11lates 

which are oversize if the legislative 5-micron definition is 

applicable. [Emphasis by the Board.] 

7 IBMA at 34. 

The Eastern Associated decision triggered prompt congressional action. 

Section 202 of the Amendments Act of 1977 repealed the five-micron definition and rewrote Section 202(e) of the 1969 Act to define respirable dust as 

"the average concentration of respirable dust measured with a device approved 

by the Secretary and the Secretary of Health, Education, and Welfare." 21 

21 There is little doubt that the deletion of the five-micron definition 

was a direct result of the Board's decision in Eastern Associated Coal 

Corporation. Respondent directed my attention to the Conference Committee 

Report on the 1977 Act, which stated that the changes were made "in order to 

eliminate apparently conflicting definitions of respirable dust which have 

threatened to interfere with the civil penalty enforcement of the dust 

sampling program established in Section 202 of the Coal Act." Respondent's 

Brief at 44, quoting S. Rep. No. 95-461, 95th Cong., 1st Sess. 63 (1977), 

reprinted in Legislative History of the Federal Mine Safety and Health Act 

of 1977 1341 (1978). 

1952 
The Senate Report on the 1977 Act contained the following explanation 

of these changes:-· 

Respirable Dust 

Section 318 of the Federal Coal Mine Health and Safety 

Act of 1969 is amended by deleting subsection (k) which 

defines respirable dust in terms of dust particles 5 microns 

or less in size •. The new definition in subsection (e) 

defines respirable dust in terms of average concentration, a 

method of determining the amount of dust in a mine atmosphere 

on the basis of weight. Since all devices approved by the 

Secretary and the Secretary of Health, Education and Welfare 

measure respirable dust on the basis of weight, arther [sic] 

than particle size, this amendment is necessary to make the 

definition of respirable dust conform to the approved method 

of sampling. 

S. Rep. 95-181, 95th Cong., 1st Sess. 51 (1977), reprinted in Legislative 

History ·of the Federal Mine Safety and Health Act of 1977 639 (1978). 

The pivotal issue in connection with these citations involves the interpretation of Section 202(e), as amended. The statute defines respirable dust 

as dust measured by "a device approved by the Secretary and the Secretary of 

Health, Education, and Welfare." If this phrase is read as meaning "a device 

to be approved by the Secretary of Labor and the Secretary of Health, Education, and Welfare subsequent to the effective date of this section," the 

citations must be vacated. This is because there were no-such approvals as 

of the dates the citations were issued. On the other hand, if the statute 

means "a device approved since the effective date of the 1969 Act by the 

Secretary of the Interior and the Secretary of Health, Education, and 

Welfare," the citations must be affirmed. 

1953 
Respondent's argument is based upon three recent decisions in which 

Judge Moore concluded-thac ,-"there is not and never has been a valid 

enforceable respirable [dust] program"!' * *·" MSHA v. Olga Coal Co., Docket 

No. HOPE 79-113-P (1979); ~ v. Alabama By-Products,_ Docket No. SE 79-110 

(1980); and MSHA v. North American Coal Corp., Docket No. LAKE 79-118 

( 1980). :§../ 

In Olga, he stated: 

* * * While it is true th.at section 30l(c) (2) of the Amendments Act does provide that regulations under the old Act 

will remain in effect until reversed by the Commission or 

other appropriate authority, that does not have the effect of 

perpetuating the old definition of respirable dus~»- -rnaf 

definition was specifically repealed on November 9, 1977, and 

the Amendment was specifically made effective on the date of 

enactment rather than 120 days later as were the other provisions of the Act. The new definition of respirable dust is 

dependent upon a device "approved by the Secretary [of Labor] 

and the Secretary of Health, Education and Welfare." As far 

as I have been able to determine, the Secretary of Labor has 

not joined the Secretary of Health, Education and Welfare in 

approving devices for the collection of respirable dust. If 

that is true, there has been no effective standard since 

November 9, 1977. 

As I stated in my recent decision in~ v. Kanawha Coal Company, Docket 

Nos. WEVA 80-40 ~ al. (June 24, 1980), I have great respec·t for Judge Moore, 

an able and. articulate judge. However, on this issue, I respectfully disagree 

with his conclusions. J_/ 

8/ The Commission granted the Secretary of Labor's petition for review of 

the Olga case on August 7, 1979, and the Secretary of Labor's petition for 

review of the Alabama By-Products case on March 5, 1980. However, neither 

case has been decided. 

9/ As stated by Commission Rule 73, 29 c.F.R. § 2700.73, "[a]n unreviewed 

decision of a Judge is not a precedent binding upon the Commission." The.refore, although I accord considerable weight to a fellow judge's views, where 

I disagree, I am not bound by his decision. 

1954 

'. ~ 
It-is a fundamental rule of statutory construction that a statute should 

not be interpreted-to ·defeat-its obvious intent. In Wilson v. United States, 

369 F.2d 198, 201 (D.C. Cir. 1966), the Court stated, "[t]he literal meaning 

of a statute cannot be followed where it leads to a result contrary to legislative intention as revealed by the legislative history or other appropriate 

sources." In Perry v. Commerce Loan Company, 383 U.S. 392, 400 (1966), the 

Supreme Court stated: "Frequently, * * * even when the plain meaning did not 

produce absurd results but merely an unreasonable one 'plainly at variance 

with the policy of the legislation as a whole' this Court has followed that 

purpose, rather than the literal words." This cannon of statutory interpretation has even been applied in criminal cases. In United-states v. Braverman, 

373 U.S. 405, 408 (1963), the Supreme Court stated: "We have considered the 

statute before us in light of the salutary rule that criminal statutes should 

not by interpretation be expanded beyond their plain language. But neither 

can we interpret a statute so narrowly as to defeat its obvious intent." 

Another canon of statutory interpretation is that remedial statutes are 

to be liberally construed to advance the remedies intended. JJ}_/ It is clear 

10/ See 3 Sands, Sutherland Statutory Construction § 60.01. In St. Marys 

sewer-PYpe Company v. Director of the United States Bureau Qf Mines, 262 F.2d 

378, 381 (3rd Cir. 1959), the Court made the following comments concerning 

the 1952 Federal Coal Mine Safety Act: 

The statute we are called upon to interpret is the outgrowth of a long history of major disasters in coal mines. 

* * * It is so obvious as to be beyond dispute that in 

construing safety or remedial legislation narrow or limited 

construction is to be eschewed. Rather, in this field liberal 

construction in light of the prime purpose of the legislation 

is to be employed. 

Similar statements were ma.de by the courts under the 1969 Act. See Reliable 

Coal Co. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973); Phillips V-:-IBMA 

1955 
that an essential purpose of the 1969 Act and the.1977 Amendments Act was to 

protect miners agairisi:.coal-wor~ers' pneumoconiosis, commonly known as "black 

lung," which is caused by the inhalation of respirable cqal dust particles. 

Thus, Section 2 of the 1969 Act, as amended, states that "the first priority 

and concern of all in the coal or other mining industry must be the health 

and safety of its most precious resource--the miner." The balance of Section 

2 also stresses the importance of protecting the health of miners. Title IV, 

dealing with black lung benefits, specifically provides benefits to miners 

who are disabled by coal workers' pneumoconiosis. 

Finally, Section 20l(b) of the 1969 Act stated: 

Among other things, it is the purpose of this title to 

provide, to the greatest extent possible, that the working 

conditions in each underground coal mine are sufficiently 

free of respirable dust concentrations in the mine atmosphere 

to permit each miner the opportunity to work underground 

during the period of his entire adult working life without 

incurring any disability from pneumoconiosis or any other 

occupation-related disease during or at the end of such 

period. 

Thus, it is clear that one of the essential purposes of this legislation 

was to prevent miners from contracting pneumoconiosis as a result of inhaling 

respirable coal dust, and to require mine operators to maintain an atmosphere 

as free as possible from such dust. 

fn. 10 (continued) 

500 F.2d 772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975); 

Freeman Coal Mining Company v. IBMA, 504 F.2d 741, 744 (7th Cir. 1974); 

International Union, UMWA v. Kle}pe, 532 F.2d 1403, 1406 (D.C. Cir. 1976), 

cert. denied, 429 U.S. 858 (1976 • 

. 1956 
Turning to the legislation in question, Section 202 of the Amendments 

Act reads: 

a. Section 202(e) of the Federal Coal Mine Health and 

Safety Act of 1969 is amended to read as follows: 

"(e) References to concentrations of respirable 

dust in this title mean the average concentration of 

respirable dust measured with a device approved by 

the Secretary and the Secretary of Health, Education, 

and Welfare." 

b. Section 318(k) of the Federal Coal Mine Health and 

Safety Act of 1969 is repealed. 

As I read the amended Section 202(e), the word "approved" is ambiguous 

and is subject to two possible definitions. It can mean-; as contended by 

Respondent, devices to be approved in the future. Alternatively, it can mean 

devices which have been approved as well as devices which may be approved in 

the future. Since either meaning is plausible, I interpret this language to 

have the meaning which would effectuate the purposes of Congress and maintain 

the continuity of a respirable dust program which Congress considered 

essential. 

Respondent argued that the word "Secretary," as used in Section 202(e), 

means the Secretary of Labor because Section 102(b)(l) of the Amendments Act 

amended Section 3(a) of the 1969 Act to read: "For the purpose of this Act, 

the term 'Secretary' means the Secretary of Labor or his delegate." Prior to 

amendment, "Secretary" meant "the Secretary of the Interior or his delegate." 

Section 307 of the Amendments Act stated: 

Except as otherwise provided, this Act and the amendments 

made by this Act shall take effect 120 days after the date of 

1957 
enactment of this Act * * *· The amendment to the Federal 

Coal Mine He.alt}J._an<LSafety Act of 1969 made by section 202 of 

this Act shall be effective on the date of enactment. 

Thus, although the amendments in Section 202 of the 1977 legislation 

were made effective immediately, the change in definition of "Secretary" 

from "Secretary of the Interior" to "Sec~etary of Labor," as well as the 

balance of the Act, did not become effective until 120 days later. When 

Section 202(e) was amended, the "Secretary" was the Secretary of the 

Interior and not the Secretary of Labor and, as indicated, the Secretary 

of the Interior had approved the device involved in this case. The fact 

that the effective date of all other sections of the Act ~as delayed 

120 days, while this section was made effective immediately, further convinces me that Congress intended that there be a valid and enforceable 

respirable dust program upon enactment of the statute. 

A further indication of Congress' intent to avoid the "lapse situation" 

urged by Respondent is Section 30l(c)(2) of the Amendments Act. That provision preserves all "orders, decisions, determinations, rules, regulations, 

permits, contracts, certificates, licenses, and privileges" which were in 

effect when the enforcement functions were transferred from the Department 

of the Intertor to the Department of Labor. I do not feel that this provision could have been drafted with any greater clarity, breadth, or decisiveness. This savings clause preserved the approvals of dust devices which were 

made under the 1969 Act until MSHA ruled otherwise. 

Finally, I believe that in deleting the five-micron definition of respi-

. rable dust from the Act in 1977, Congress was simply rectifying an error which 

1958 
it had made when it passed the 1969 Act. On April 8, 1980, MSHA promulgated 

final rules on the definition of respirable dust and the procedures for 

sampling it in underground coal mines. See 45 Fed. Reg. 23990-24005 (1980). 

While I do not believe that the new rules themselves have any relevance 

to the citations at issue, the explanatory material which accompanied the 

new rules sheds considerable light on the rise and fall of the five-micron 

definition. 

The new regulations define "respirable dust" as "dust collected with a 

sampling device approved by the Secretary and the Secretary of Health, Education, and Welfare in accordance with Part 74 (Coal Min~ _!>yst Personal Sampler 

Units) of this title." They add that "Sampler device approvals issued by the 

Secretary of the Interior and the Secretary of Health, Education, and Welfare 

are continued in effect." 45 Fed. Reg. 24000-24001, 24004 (1980) (to be 

codified in 30 C.F.R. § 70.2(n) and § 75.2(k)). The definition of "respirable 

dust" in the new regulations is thus consistent with Section 202(e) of the 

Act as amended in 1977. The size definition which previously appeared at 

30 C.F.R. § 75.2(k) has been deleted. 

In expiaining this change in the regulations, MSHA stated that (45 Fed. 

Reg. 23994): 

Commenters also suggested that the definition of 

respirable dust should include a particle size limitation. 

The final rule defines respirable dust as dust collected 

wtih [sic] sampling device[s] approved by the Secretary and 

the Secretary of Health, Education, and Welfare. This 

definition is consistent with the definition of respirable 

dust in section 202(e) of the Act. Approvals for devices 

1959 
issued by the Secretary of the Interior and the Secretary of 

HEW under the Co-al Act-and Part 74 of 30 CFR are continued in 

effect by virtue of the provisions of the Federal Mine Safety 

and Health Amendments Act of 1977. 

The previous definition of respirable dust prior to the 

1977 Act was "only dust particulates 5 microns or less in size" 

(30 CFR 70.2(i)). This definition was based on ~n incorrect 

interpretation of the original definition of respirable dust 

developed by the British Medical Research Council (BMRC). 

According to the· BMRC 11 a selective size sampling device 

· meeting these requirements would have a 50 percent sampling 

efficiency for 5 micron spherical particles of unit density, 

and an absolute cut-off for similar particles of size greater 

than 7 .1 (micron) diameter." The MRE device was designed 

according to the BMRC definition, and u~ed in the epidemiological studies upon which the 2.0 mg/m dust standard in the 

1969 Coal Act was based.· [Citation omitted] 

By prescribing the 5 micron diameter as the abs_o-lut~ 

cutoff, rather than the 50 percent efficiency diameter as 

determined by the BMRC, the previous definition of respirable dust was rendered incompatible with the performance 

of the MRE instrument or any other instrument for sampling 

respirable dust. Consequently, the Interior Board of Mine 

0 erations A eals determined that citations based u on 

this definition were unenforceable. Eastern Associated 

Coal Corporation***). 

To retain a definition of respirable dust based on a 

5 micron particle size limitation would perpetuate these 

problems. Congress recognized this potential and in the 

1977 Act defined respirable dust in terms of approved sampling devices. This same concept is adopted in the final 

rule*** [Emphasis added.] 

This suggests that the five-micron definition was a mistake from the 

day the 1969 Act was signed into law. The BMRC research which the definition 

was based upon did not prescribe an absolute five-micron cutoff. Rather, it 

called for defining respirable dust in terms of a device which had a 50 percent sampling efficiency for five-micron spherical particles, and an absolute 

cutoff for similar particles 7.1 microns in size. 

1960 
This position .is s~_ppo__:t~~ by a review of the legislative history of 

the 1969 Act. During the consideration of that Act, Congress had a propos~d 

definition of respirable dust before it which was identical to the BMRC definition. On January 16, 1969, Senator Randolph introduced S. 355, which 

called for dust sampling with the use of "a gravemetric [sic] sampling device 

having the following characteristics for particles of unit density spheres 

or its equivalent: 2 microns and less will pass 98 percent; 5 microns will 

pass 50 percent; 7.1 microns will pass 0 percent." Section 30l(b). The same 

proposed definition appeared in Section 32(b) of S. 1094, introduced on 

February 19, 1969 by Senator Williams. Two other bills, S. 1300 (introduced 

on March 4, 1969 by Senator Javits) and S. 1907 (introduced on April 22, 

1969 by Senator Cook) did not define respirable dust in this manner, but 

simply s.tated that dust was to be measured by an MRE instrument. See Section 

202(a)(2) of S. 1300 and Section 202(b) of s. 1907. I do not think the definition in the first two bills was inconsistent with the definition in the 

latter two. As Petitioner's Exhibit 24 demonstrated, the sampling efficiencies set forth in s. 355 and S. 1094 represented precisely the efficiency 

of the MRE device described in S. 1300 and S. 1907. 

With this background in mind, it is easy to see why the-Interior Board 

of Mine Operations Appeals was compelled to strike down the dust program 

which had come into being under the 1969 Act. The strict five-micron cutoff 

which appeared in the 1969 Act was unattainable with the technology which an 

MRE device or its equivalent represented. The MRE was only SO percent efficient 

in screening out particles larger than five microns in size, and had an 

absolute cutoff of 7.1 micron particles. 

1961 
When the 1977 Amendments Act cane before the Congress, the legislators 

recognized the error made in the 1969 Act, and deleted the five-micron definition from the statute. In my opinion,- their intention was to indicate their 

approval of the MRE and other devices approved by the Secretaries, both before 

and after the effective date of the new law. Their intention was . ..!!£!, as 

Respondent would have me believe, to scuttle the entire respirable dust 

program until such time as the Secretary of Labor and the Secretary of Health, 

Education, and Welfare had approved new devices for measuring respirable dust. 

In its brief, Respondent extensively discussed the merits of the deleted 

five-micron definition, and chastised the Secretary for '~consider[ ing] as - ----

respirable dust whatever is captured by the personal sampler unit's filter." 

Respondent's Brief at 45. Upon passage of the 1977 Act, MSHA was given a 

clear Congressional mandate to proceed with the respirable dust program with 

all due dispatch, unhampered by a size-based definition which was not only 

technologically impracticable, but held legally insufficient in Eastern 

Associated Coal. Respondent argued that "there is a rational basis supporting 

its contention that respirable dust is that particulate which measures five 

microns or less in size." Respondent's Brief at 52. It is not my function 

to determine whether there is a rational basis in fact for- such a conclusion. 

As a matter of 1 aw, the five-micron standard no longer exists. Respondent 

attempted to, in effect, reargue the Eastern Associated Coal case. Such an 

approach must fail because, as I have pointed out, the Congress has made 

that decision a nullity • .!.!/ 

11/ Respondent also called attention to two actions taken by the Secretary 

of Labor which, in Respondent's view, bolster its contention that respirable 

dust is still defined as dust particulates five microns or less in size. 

1962 
The Congress has, therefore, defined respirable dust as that which is 

collected by a device approved either by the Secretary of the Interior and 

the Secretary of Health, Education, and Welfare before the effective date of 

Section 202 as amended by the 1977 Act, or by the Secretary of Labor and 

the Secretary of Health, Education, and Welfare thereafter. Accordingly, I 

find that Respondent violated 30 C.F.R. § 70.lOO(b) as alleged with respect 

to the 15 citations at issue. 

In determining the amount of an appropriate penalty for these citations, 

most of my evaluations of the criteria in Section llO(i) of the Act discussed 

during my consideration of Citation No. 776637 apply. Ho~ever-, one point 

which was raised at hearing and vigorously debated by the parties in their 

briefs deserves further discussion. 

Mr. Stritzel, one of Petitioner's witnesses, testified that Respondent 

had the worst record of any company in MSHA's Benton subdistrict of compliance 

with the respirable dust standards. In its brief, Respondent questioned the 

fn. 11 (continued) 

The first of these is the Secretary's continued policy of screening certain 

dust samples for "oversized particles," a practice which Petitioner characterized as "nothing more than an additional check." The second is the 

Secretary's.continued use of the five-micron definition in his regulations 

up until April 8, 1980, when the new rules discussed above were put into 

effect. See 30 C.F.R. § 75.2(k) (1979). In my view, while both of these 

actions indicated that the Secretary was still, to some extent, relying upon 

the five-micron definition, neither made the Labor Department's respirable 

dust program unenforceable. It is axiomatic that when the Congress amends 

an enforcement provision, that enactment automatically supersedes any regulations or practices promulgated in reliance on the pre-existing provision. 

Regulations have the force and effect of law only when they are not inconsistent with a statute. See General Services Administration v. Benson, 415 

F.2d 878, 880 (9th Cir. 1969). Additionally, I note that 30 C.F.R. § 75.2(k) 

is a safety standard. The corresponding health standard formerly appeared 

at 30 C.F.R. § 70.2(i), and was repealed shortly after the enactment of the 

1977 Amendments Act. 

1963 
statistics upon which Mr. -Stritzel relied. Respondent's analysis of the evi-

-~ ' -- -- dence proved that Mr. $tritzel's figures may have been between 58 and 122 percent greater than the actual figures which reflect the numher of citations 

and withdrawal orders issued to Respondent for respirable dust violations 

during 1977 and 1978. Therefore, I do not accept Mr. Stritzel's conclusion 

concerning Old Ben's record of compliance with the dust standard. 12/ 

Upon consideration of the criteria in Section llO(i) of the Act, I assess 

a penalty of $100 for each violation of 30 C.F.R. § 70.lOO(b), for a total of 

$1,500. QI 

ORDER 

Citation .No. 777024 is VACATED. With respect to the remaining 16 citations involved in these cases, Respondent is ORDERED to pay $1,750 in penalties within 30 days of the date of this Order. 

~. //. & .. .;Z..• 

Edwin S. Bernstein - Administrative Law Judge 

12/ Respondent also contended that the methods of mining which it employs at 

its Benton mines (longwall and borer-type) produce more coal dust than other 

methods. Respondent claimed that its "higher [dust] level!? are attributable 

to the type.of mining practiced in the Old Ben mines rather than to some 

villainous plot to frustrate the mine health standards concerning respirable 

dust." While Petitioner's witness, Mr. Stritzel, apparently conceded that 

these types of mining produce more dust than other types, I do not believe 

it is necessary for me to consider whether the higher accumulations of dust 

in Re~pondent's mines are the result of technological innovation or a 

"villainous plot." · 

13/ The 15 citation numbers are 9940663, 773508, 9940684, 9940664, 9940688, 

9940693, 9940694, 9940674, 9940690, 9940689, 9940678, 9940659, 9940706, 

9940700, and 9940703. · 

1964 

~: 
DistributiOn: 

-- ' - -- William C. Posternack and Miguel J. Carmona, Office of the Solicitor, 

U.S. Department of Labor, 8th Floor, 230 South Dearborn Street, 

Chicago, IL 60604 (Certified Mail) 

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

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

#2400, Chicago,- IL 60606 (Certified Mail) 

John Arvai, Jr., UMWA, 310 South Pine Street, Zeigler, IL 62999 

(Certified Mail) 

Lester Young, UMWA, 508 N. Adams Street, West Frankfort, IL 62896 

(Certified Mail) 

Roger Young, UMWA, 214 South Park, West Frankfort, IL 62896 

(Certified Mail) 

- ---

1965 
c 80 41 

u 

z~ 

Q ': 60 1-z 

<tO 

a:-

1- !::: 

~~ 40 

wa.~ 

a: 20 o. 

APPENDIX - PETITIONER'S EXHIBIT 24 

. \ 

)., ,, 

~\ '~ MRE device \~ Personal Sampler " \. 

Pulmonary 

deposition 

\ . 

\ . ' \ ' ............ .. , .... ~, ... _ . ........... __ _ 

0 2 4 6 8 10 12 

DIAMETER UNIT DENSITY, SPHERE, microns 

1966 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W . .COLFAX AVENUE 

DENVERACQJ.ORADO 80204 

" :> JUL 1980 ~~~~~~~~~~~~~~~~~~~-

) 

SECRETARY OF LABOR, MINE SAFETY AND ·) 

HEALTH ADMINISTRATION (MSHA), ) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

) 

) 

) 

DOCKET NO. WEST 79-301-M 

MSHA CASE NO. 05-02~05003 

v. 

CLIMAX MOLYBDENUM COMPANY, 

Respondent. 

) 

) 

) 

) 

MINE: 

~~~~~~~~~~~~~~~~~~~-> 

DECISION 

APPEARANCES: 

CLIMAX OPEN PIT 

Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh, 

Regional Solicitor, United States Department of Labor, Kansas City, 

Missouri, 

for Petitioner, 

Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado 

for the Respondent. 

Before: Judge John J. Morris 

Petitioner, the Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges that respondent, Climax Molybdenum 

Company, failed to immediately notify MSHA of an accident on mine property. 

MSHA asserts Climax thereby violated two standards promulgated under 

authority of the Federal Coal Mine Health and Safety Act of 1969 (amended 

1977), 30 u.s.c. § 801 et seq. 

STATEMENT OF THE CASE 

Climax allegedly violated 30 C.F.R. 50.10 and 30 c.F.R. 50.12. The 

standards provide as follows: 

Subpart B - Notification, Investigation, Preservation of Evidence 

§ 50.10 Immediate Notification. 

If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Office having 

jurisdiction over its mine. If an operator cannot 

1967 
contact the appropriate MSHA District or Subdistrict 

Office_,__ it-shall immediately contact the MSHA 

Headquarters Office in Washington, D. c., by telephone, 

toll free at (202) 783-5582 

§ 50.12 Preservation of Evidence. 

Unless granted permission by a MSHA District Manager 

or Subdistrict Manager, no operator may alter an 

accident site or an accident related area until completion 

of all investigations pertaining to the accident except 

to the extent necessary to rescue or recover an individual, 

prevent or eliminate an imminent danger, or prevent 

destruction of mining equipment. 

FINDINGS OF FACT 

The evidence is essentially uncontroverted. I find the following facts 

to be credible. 

1. Climax employee Roger Persichini was injured on November 6, 1978 

when a truck tire weighing approximately 7,000 pounds fell on him (Tr 15 -

39). 

2. Persichini suffered fractures of the left femur, the pelvis,_ and 

the right hip (Tr 83 )·. 

3. An initial examination took place in the Climax infirmary. It was 

conducted by Dr. James Bane and Nurse Anderson (Tr 88, 98). 

4. The medical personnel in the infirmary were familiar with 

Persichini's medical profile from previous examinations. His history 

identified him as a healthy white male (Tr 75 - 94). 5. In the infirmary, 

Persichini 's vital signs were stable and he was cooperative (Tr 74 - 94). 

6. The injured man was removed to St. Vincent's Hospital in Leadville, 

Colorado. Thereafter, he was transferred to St. Anthony's Hospital in 

Denver, Colorado (Tr 87, 88). 

7. James Keith, the Climax safety director was advised by the Climax 

nurse and physician that Persichini's condition was serious but not _life 

threatening (Tr 48 - 74). 

1968 
8. On November 7, 1978, Persichini, while in St. Anthony's 

Hospital, developed a fat embolism. A fat embolism, which can occur as a 

result of a fracture of a large bone, normally does not develop until twelve 

hours after the fracture. Such a condition is not life threatening (Tr 88, 

95 - 102). 

9. The fractures·, according to the Climax physician, were serious but 

not life threatening (Tr 95 - 102). 

10. Climax's head nurse, Ann Anderson, continually monitored 

Persichini's condition while he was hospitalized. She terminated this 

monitoring when she visited him in St. Vincent's Hospital on November 9, 

1978 (Tr 74-94). 

11. Persichini returned to work on November 11, 1979 (R1). 

12. Climax reported the accident to MSHA on Form #7000-1 on November 

10, 1978 (R1). 

13. Climax did not preserve the accident scene (Tr 73). 

ISSUE 

The primary issue is whether Climax violated the standard. The 

underlying fact issue is whether the injuries to Persichini had a 

"reasonable potential to cause death." 

DISCUSSION 

Petitioner, in his post trial brief, initially contends that the injury 

sustained by Persichini constituted an accident as defined by 30 c.F.R. 

50.2(h)(2). Secondly, petitioner asserts that the Climax safety director 

did not rely on the medical opinions of the company nurses and physicians. 

Thirdly, MSHA argues that the accident scene must be preserved when there is 

a serious injury until mine management has determined whether the accident 

1969 
is reportable under 30 C.F.R. 50.10. Finally, MSHA declares that an 

operator must notify MSHA "whenever the injury is serious and. there exists 

any question as to whether it is life threatening." In short, MSHA says the 

operator should err on the side of immediate notification. 

I reject the above arguments. Concerning the first contention, it 

appears that 30 c.F.R~ 50.2(h)(2) defines as accident as follows: 

(h) "Accident" means (2) An injury to an individual 

at a mine which has a reasonable potential to cause 

death. 

Simply stated, MSHA did not establish a factual situation within the 

above definition of an accident. 

I agree with MSHA that remedial legislation should be broadly 

construed; however, there must first be operative facts to establish the 

applicability of the regulation. 

MSHA's reliance on Secretary v. Hecla Mining Company 1 MSHC 2270 is 

misplaced. In that case Administrative Law Judge George A. Koutras ruled, 

as I do, that no reasonable potential for death was shown in the case. In 

Hecla, the victim was taken to the hospital and moved to intensive care. 

MSHA misconstrues it's regulation. Immediate reporting is not required 

if the accident is serious and there exists "any question" as to whether it 

is threatening. 

As a general rule the strained construction of a standard relating to 

safety and health should be avoided. Cf Diamond Roofing Company v. OSHRC 

528 .F 2d 645 (5th Cir., 1976), Dunlop v. Ashworth 538 F 2d 562 (4th Cir., 

1976); Brenner v. OSHRC (Ron M. Fregen, Inc.) 513 F 2d 713 (8th Cir., 

1975); Usery v. Kennecott Copper Corp. 577 F 2d 1113 (10th Cir., 1977). 

1970 
MSHA's second contention that the Climax safety director did not 

rely on the opinions of its medical staff ignores the evidence to the 

contrary (See Fact 7 and 9). 

MSHA's third argument that an operator must preserve the site until 

management has determined whether the accident is immediately reportable 

misconstrues the regulations. An operator may be acting at its peril in 

·not preserving the site if it develops that the injury does have a 

reasonable potential for death. However, the necessity to preserve does not 

occur until the reasonable potential for death has arisen. 

MSHA's final contention that notification is required "whenever there 

exists any question as to whether it is life threatening" lacks merit. If 

MSHA desires a regulation in line with the above requirements, ~hen it 

should redraft one under its rule making procedures. 

At trial, MSHA argued that immediate reporting was required due to a 

combination of circumstances. Namely, the injuries were serious, a fat 

embolism developed, intensive care was required, and Persichini was moved to 

three different treatment facilities. 

In considering the above elements, I rule as a matter of law, that a 

"serious injury" is necessarily something less than one that has "a 

reasonable potential for death." Climax's evidence shows that a fat 

embolism is not "life threatening." Further~ intensive care is a facility 

where more specialized nursing care and observation are available. Finally, 

the evidence shows that the transfer to three medical facilities 1 was due 

to the areas of specialization of the particular facilities. 

l/ Climax infirmary, St. Vincent Hospital in Leadvill~, Colorado; 

then St. Anthony's Hospital in Denver, Colorado. 

1971 
CONCLUSIONS OF IAW 

1. MSHA fai-led--to prove that worker Persichini sustained an injury 

that had a reasonable potential for death and accordingly Climax did not 

violate 30 c.F.R. so.10. 

2. Persichini sustained an occupational injury as defined by 30 C.F.R. 

. 2 50.2(e). 

3. If no immediate notification was required by 30 C.F.R. 50.10, then 

no violation of 30 C.F.R. 50.12 can occur. 

Based on the foregoing findings of fact and conclusions of law, I 

enter the following: 

ORDER 

Citations 333661 and 333662 and all proposed penalties therefor are 

vacated. 

Law Judge 

Distribution: 

Robert s. Bass, Esq., Eliehue c. Brunson, Esq., Office of the Solicitor 

United States Department of Labor, 911 Walnut Street, Room 2106, 

Kansas City, Missouri g4106 

Richard w. Manning, Esq., Attorney for Climax Molybdenum Company, a 

Division of AMAX, Inc., 13949 West Colfax Avenue, Golden, Colorado 

80401 

~./ This definition provides as follows: (e) "Occupatiom/injury" 

means any injury to a miner which occurs at a mine for which 

medical treatment is administered, or which results in death or 

loss of cons.ciousness, inability to perform all job duties on 

any day after an injury, temporary assignment to other duties, 

or transfer to another joo. 

1972 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

--- ·oFFlCE"-OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520" LEESBURG PIKE 

FALLS ~URCH, VIRGINIA 22041 

l!03J 756-6220 

2 8 JUL 1990 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No •. WEVA 80-323 

Petitioner A.c. No. 46-00889-03012R 

v. 

Juanita No. 1 Mine 

COAL RESOURCES, INC., 

Respondent 

DECISION APPROVING SETTLEMENT 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

s. J. Angotti, Esq., Morgantown, West Virginia, for Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of civil penalty under section llO(a) of the Federal Mine Safety and Health Act of 

1977 (30 u.s.c. § 801~~., the "Act"). On June 10, 1980, at a hearing 

held in Morgantown, West Virginia, Petitioner proposed a settlement agreement conditioned on the payment by Coal Resources, Inc., of a penalty of 

$6,000. I have considered the evidence and stipulations submitted and conclude that the proposal is appropriate when considering the criteria set 

forth in section llO(i) of the Act. 

The citation at bar charges a serious violation of section 103(a) of 

the Act in that an MSHA inspector was forcibly denied entry to conduct an 

authorized inspection. On September 11, 1979, Inspector Albert Borda 

arrived at the operator's Juanita No. 1 Mine in Everettville, West Virginia, 

to conduct a· regular inspection but before he could do so he was threatened, 

physically attacked and seriously injured by John Laurita a representative 

and official of the operator. 

At hearing, the statement of Inspector Borda was submitted as undisputed 

evidence. The operator waived its right to require the inspector to testify 

under oath and waived its right to cross-examination. · The statement reads 

as follows: ];./ 

1/ Transcript at 7. 

1973 
I was assigned to a regular inspection at the Juanita 

No •. l Mi~e, Coal Resources, Inc., Everettville, Monongalia 

County, We·st·-Vi'rglnl.a, MSHA ID. No.46-00889, by Steve Kuretza. 

I left Fairmont Field Office at 7:10 a.m. and drove to the 

mine. I arrived at the mine at 7:45 a.m.. I saw a highlift 

operator putting coal in a coal truck. Everything looked 

normal. I proceeded to the mine office and was met by Pat 

Rundle. I told him I was there to start a regular inspection of the mine. He mentioned an OSM -- that's Office of 

Surface Mining ~ man was there the day before. Pat Rundle, 

Mine Operator, said that an OSM man said they needed more 

gravel on the roadways, drainage was coming out of the mine, 

they. could be fined $25,000, and all the agencies of the ·· 

government is [sic] killing them. I proceeded to the office 

and bathhouse with my clothes and equipment, sat [sic] them 

on the bench and was getting ready to change clothes. The 

phone rang and Pat answered it. He talked approximately one 

minute. Pat said that John Laurita wanted to talk to me. 

He told me I had fined him $750, you fucking son-of-a-bitch. 

He told me not to go underground until he got there. He 

mentioned a trailing cable fine again $750. I. told him I don't 

set fines; they have an assessment office for that. He said, 

you son-of-a-bitch I'll be right over. I told Pat Rundle we 

weren't the only cause of all these problems; Reclamation and 

OSM have been there too. Pat said the Government is running 

the coal business trying to do away with the small 'operators. 

We would be better off if this country was Communist. This 

conversation was the general tone until John got there. John 

Laurita arrived at the mine in a four-wheel jeep truck, blue 

and white. He parked on the other side of the tracks across 

from the mine office. He was walking across toward me. I was 

sitting on a bench outside. He asked me what I was looking 

at, you son-of-a-bitch. I told him I looked at anything that 

moved it attracted my attention. He said I ought to kill you, 

you son-of-a-bitch for fining me that $750 for that cable. 

He said I don't even want you on my property. He said I hope 

I never see you on this property again; I don't care if you 

never come back. John motioned for me to go in th~_ building. 

He closed the door behind us. He said something about a 

woman in Morgantown in the funeral home, his sister-in-law 

who had five kids. Then he said I ought to split your head 

wide open with an ax. I bent over to pick up my clothes 

from the bench. John Laurita pushed me and I lost my 

balance and fell on the floor. After falling he grabbed my 

shirt and tore two buttons and tore my T-shirt and placed 

scratches on my face and chest. I reached out to stop him 

with my left arm. · He continued to keep me on the floor. 

John Laurita told Pat Rundle to find him an ax. Pat Rundle 

was trying to break it up and get .John Laurita away from 

me. Pat Rundle more or less forced him away from me 

1974 
allowing me to get up. John Laurita followed me and he 

went -to the left and I wen~ to the right toward.my government 

car. I drov.e. tq:warcL.his jeep to leave. He was blocking the 

roadway and since I couldn't get through I turned left and 

crossed ove~ the mainline track with my government car on 

to the other roadway that allows supplies to be brought in 

on that side. As I proceeded away from the mine John Laurita 

was standing on the same roadway I was leaving on. As I was 

leaving the mine site John Laurita picked up part of a fishplate and acted as if he was going to throw it toward the 

car. He hesitated and did not throw it. I left the mine 

and returned to the Fairmont Field Office. 

Dr. Shen K. Wang, M.D., of the orthopedic clinic in Fairmont, 

West Virginia, examined Inspector Borda later the same day. According to 

Doctor Wang, Borda suffered four fractured ribs as well as multiple abrasions on the left side of the face, chin, and chest. !: ./ 

Based on this undisputed evidence it is clear that the attack upon 

Inspector Borda was not the result of mere negligence but was intentional 

and malicious and therefore represents the highest degree of culpability. 

Serious injuries were not only probable but were intended and did in fact 

result from the incident. The penalty of $6,000 here ordered against Coal 

Resources is a severe but appropriate sanction. 

I have also noted in accepting this penalty in settlement that the 

operator produces about 100 tons of coal a day, has a moderate history of 

violations (and no violations of a similar nature) and has not denied entry 

to or threatened MSHA inspectors since this incident. I do observe however 

that MSHA now sends inspectors to the Coal Resources facility in pairs raising some question as to whether all parties are convinced that ahatement is 

permanent. 

WHEREFORE, the motion for approval of settlement is GRANTED, and it 

is ORDERED that Respondent pay the agreed penalt within 30 days of this 

order. 

Distribution: 

Edward H. Fitch, Esq., Office of the 

Labor, 4015 Wilson 

.s. Department of 

(Certified Mail) 

s. J. Angotti, Esq., 212 High Street, Morgantown, WV 26505 

(Certified Mail) 

]:/ Transcript at 10. 

1975 
EEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. COLFAX AVENUE 

DENVER, COLORADO 80204 

2 9 JUL 1990 

SECRETARY OF LABOR, HINE SAFETY AND 

HEALTH ADMINISTRATION {MSHA), 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

DUVAL CORPORATION, 

DOCKET NO. WEST 79-196-M 

A/0 NO. 02-00144-05004 

Mine: Sierrita Mine 

Respondent. 

DECISION 

Appearances: 

Mildred L. Wheeler, Esq., Office of the Regional Solicitor, 

United States Department of Labor, 450 Golden Gate Avenue, 

Box 36017, San Francisco, California 94102 

for the Petitioner, 

Lina s. Rodriguez, Esq., Bilby, Shoenhair, Warnock & Dolph, 

P.C., 2 East Congress Street, Tucson, Arizona 85702 

for the Respondent. 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

This case, .heard under the provisions of the Federal Mine Safety and 

Health Review Act of 1977, 30 U.S.C. § 801 et~·' arose-out of inspections 

conducted at Respondent's mine in Sahuarita, Arizona on November 29, 1978, 

and March 20 and 21, 1979. As a result of those inspections, five citations 

were issued, of which only three were actually tried, since Respondent 

admitted at the hearing the violations alleged in Citations 378683 and 

378684 {'l'r. 9). 

_!/ A $130.00 penalty was initially proposed for each of these citations. 

Since Respondent did not contest the appropriateness of these penalties, 

they stand as final assessments. 

1976 
Petitioner seeks an order assessing civil penalties for 

Respondent's alleged violat1ons of 30 CFR § 55.12-13, 2 30 CFR §55.14-1 3 

and 30 CFR §55.14-45. 4 

Citation number 378682 charges that Respondent violated 30 CFR §55.12-13 

by using a permanently spliced cable which lacked a bonded outer jacket. 

Respondent does not dispute Petitioner's allegation that the outer 

jacket was loose. Instead, it contends that the loose condition of the 

jacket presented no danger because the five cables bound by the jacket were 

individually wrapped and sealed; furthermore, Respondent argues, the cable 

was located in an isolated area. 

Citation number 378685 charges that Respondent vi()~_ated ·30 CFR 

§55.14-1 by failing to adequately guard a pinch point between the belt 

drive and the pulley on a back-up water pump. Respondent contends that the 

standard is inapplicable because the pump was infrequently used and because 

the pinch point, due to the machine's construction and surroundings, could 

not be contacted except intentionally. 

~/ Mandatory. Permanent splices and repairs made in power cables, 

including the ground conductor where provided, shall be: (a) 

Mechanically strong with electrical conductivity as near as possible to 

that of the original; (b) Insulated to a de~ree at least equal to that 

of the original and sealed to exclude moisture; and (c} Provided with 

danger protec~ion as near as possible to that of the original, 

including good bonding to the outer jacket. 

3/ Mandatory. Gearst sprockets; chains; drive, head, tail and take-up 

.pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which _may be contacted by 

persons, and which may cause injury to persons shall be guarded. 

!/ Mandatory. Welding operations shall be shielded and well ventilated. 

1977 
Citation number 377036 charges that Respondent violated 30 CFR 

§55.14-45 because ofie· of Tts employees was welding on the teeth of a shovel 

bucket without using a curtain to protect other persons from being harmed by 

the light flashes. Respondent contends that the welder was operating from 

inside the shovel bucket, with his back to the open end, and thus provided 

adequate shielding •. Furthermore, Respondent argues, there was no danger 

presented regardless of the adequacy of the shielding because the sun's 

brightness diffused the welding flash and no one was close enough to be 

harmed. 

ISSUES 

1. With regard to Citation Number 378682, the is~ue is whether the 

outer jacket of the permanently spliced cable was well bonded. 

2. With regard to Citation Number 378685, the issue is whether the 

pinch point between the belt drive and the pulley on the back-up pump was 

.adequately guarded. 

3. With regard to Citation Number 377036, the issue is whether the 

welding operation at Respondent's shovel bucket was shielded. 

FINDINGS OF FACT AND DISCUSSION 

Citation 378682 

1. A trailing cable on one of Respondent's shovels was permanently 

spliced (Tr. 46). 

2, The outer jacket of the cable was loose and the splice connection 

was exposed (Tr. 46 - 48, 120, 126). 

Violation: 

This citation should be affirmed. The mandatory standard at 30 CFR 

§55~12-13 requires that all permanently spliced power cables have well 

1978 
bonded outer jackets. The undisputed evidence is that the power cable 

in question was permanen:tlx_ ~l>liced and had a loose outer jacket (see Tr. 

120, 126). A violation of the standard was therefore shown. 

Respondent's safety supervisor suggested that the jacket served no 

safety purpose because each wire within the cable was individually wrapped 

(Tr. 114 - 118). The same witness, however, admitted that one of the 

purposes served by the outer jacket is to prevent moisture from reaching the 

wires (Tr. 132 - 133). 

Respondent also argues that its ground-fault system would automatically 

de-energize. the cable in the event of a short circuit or upon contact with 

water, a vehicle or a piece of machinery (see Tr. 120-122). Assuming the 

system to be faultless, it does not relieve Respondent of its duty, under 

this standard, to make sure that its power cabl€s are well bonded. 

Furthermore, Respondent's Safety Supervisor conceded that the loss of the 

outer jacket coupled with another safety defect could present a "safety 

problem" (Tr. 127 - 128), characterizing the potential for an electrical 

accident even with the trip devices as "not impossible, but improbable" (Tr. 

129). 

Penalty: 

The parties stipulated to the following: Respondent ~~ a large 

operator 5 and had received 33 citations within the two years preceding 

the inspection which gave rise to this case. 6 

~ The parties stipulated that Duval Corporation operates at 4,781,356 

manhours per year, and that its Sierrita Mine, in Sahuarita, Arizona, 

operates at 1,379,444 manhours per year (Tr. 6). According to the 

tables found at 30 CFR §100.3(b), these figures indi.cate that the mine 

and the controlling company are "large". 

~/ Using the table at 30 CFR §100.3(c), these figures indicate a relatively 

favorable prior history. 

1979 
.Respondent was negligent in that it failed to exercise reasonable 

care to prevent -the·-vioration. 

The gravity of the violation was low. Although the thorough wrapping 

of each cable and Respondent's ground-fault system does not vitiate the 

violation, they are relevant to a determination of the danger posed by the 

violation. These precautions substantially reduced the possibility of 

harm. 

Respondent demonstrated good faith by installing a new, watertight 

cable sleeve (Tr. 48). 

Giving due consideration to the factors discussed above, I conclude 

that a reasonable and appropriate penalty is $50. 00 •. 

Citation 378685 

3. Respondent has a back-up water pump which is used only when the 

automatic pump breaks down (Tr. 58, 137). 

4. On the back-up punip there is a pinch point created by the belt 

drive and the pulley (Tr. 54). 

5. The pump is located in an isolated area and is surrounded by a 

walkway and a railing (Tr. 143, 136, 58). 

6. The machine itself guards the pulley (Tr. 139). A wire cover 

extends over the fan belt and a brace bar extends-diagonally from the top to 

the bottom of the machine (Tr. 138) • 

. This citation should be vacated. The pinch point on Respondent's 

back-up water pump was not guarded with equipment specifically designed for 

that purpose. It was guarded by the location and design of the pump, 

however. The machine was located in an isolated area and was surrounded by 

a walkway which, in turn, was surrounded by a railing (Tr. 143, 136, 58; See 

Exhibit ·R-U). A wire cover extended over the fan belt and a brace bar 

extended diagonally from the top to the bottom of the machine (Tr. 138; see 

1980 
Exhibits R-S and R-T and Tr. 144-145.) If a worker fell toward the 

pump, he would hit. tlie- -~r~s~:.bar (Tr. 143). 

There was no reason to attend the machine except to turn it on and off. 

When starting or stopping the pump, a worker stands on a walkway beside the 

engine; to reach the pinch point, he would have to purposely extend his arm 

toward the engine (Tr. 143). There is no need to approach-the pinch.point 

except to replace the belt or to repair the alternator, in which case the 

machine would first be shut down (Tr. 147). 

For these reasons I find that the guarding requirement imposed by 30 

CFR §55.14-1 was met. 

Citation 377036 

7. At Respondent's mine in Sahuarita, Arizona, on November 29, 1978, a 

worker was welding on the wear plates of a shovel bucket, used to pick up 

ore and load it into trucks (Tr. 12 - 13; 78 - 79). 

8. Although the welding operation was not shielded by a curtain, the 

welder was inside the bucket, surrounded on all but one side by the bucket 

walls; and the welder himself was positioned at the open end, facing the 

bucket's interior (Tr. 13; 80 - 81). 

This citation should be vacated. The standard at 30 CFR §55.14-45 

states: "Welding operations be shielded and well ventilated." The standard 

does not specify how they must be shielded. In this case, the welding 

operation was shielded on three sides by the shovel bucket and on the fourth 

side by the welder himself. The standard was therefore met. 

CONCLUSIONS OF LAW 

1. This Commission has jurisdiction over the subject matter and 

parties to these proceedings. 

1981 
2. Responde·nt violated the regulations as alleged in Citations 

378682, 378683 and 3_]86~·~ 

3. Respondent did not violate the regulations as alleged in Citations 

378685 and 377036. 

ORDER 

Citations 378685 and 377036 are vacated. Citations 378682, 378683 and 

378684 are affirmed, and penalties of $50.00, $130.00 a-nd $130.00 

respectively, are assessed therefor. 

It is further ordered that Respondent pay $310.00 within 30 days of 

this decision. 

Judge 

Distribution: 

Mildred L. Wheeler, Esq., Office of the Regional Solicitor, United 

States Department of Labor, 450 Golden Gate Avenue, Box 36017, 

San Francisco, California 94102 

Lina s. Rodriguez, Esq., Bilby, Shoenhair, Warnock & Dolph, P. c., 

2 East Congress Street, Tucson, Arizona 85702 

1982 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

- _, OFFiCE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR -

52QJ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3 0 JUL 1980 

ISLAND CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

ISLAND CREEK COAL COMPANY, 

Respondent 

.. . 

Contest of Citations 

Docket No. KENT 79-216-R 

Citation No. 712200; 6-15-79 

Big Creek No. 2 Mine 

Docket No. WEVA J-9-183-R -- Citation No. ~35499; 5-7-79 

Docket No. ~VA 79-184-R 

Citation No. 635500; 5-7-79 

Birch No. 2-A Mine 

Civil Penalty Proceeding 

Docket No. WEVA 80-72 

A.c. No. 46-01459-03053 

Birch No. 2-A Mine 

SUMMARY DECISION 

These consolidated cases involve three citations charging violations of 

section 103(f) of the Federal Mine Safety and Health Act of 1977 (the Act). 

Section 103(f) reads in part: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the 

physical inspection of any coal or other mine made pursuant 

to the provisions of subsection [103](a) * * * [O]ne such 

representative of miners who is an employee of the operator 

shall be entitled to suffer no loss of pay during the period 

of such participation under the provisions of this subsection. 

1983 
In Kentland-Elkhorn Coal Corp., 1 FMSHRC 1833 (November 30, 1979), 

appeal pending No •. 79-2536 (D.C. Cir., December 21, 1979), the Federal 

Mine Safety and Health~evrew-Commission interpreted the section 103(f) 

so-called walkaround pay provision to apply to section 103(a) "regular" 

inspections only. In reaching this decision, the Commission relied on its 

reasoning in Helen Mining Co., 1 FMSHRC 1796 (November 21, 1979), appeal 

pending No. 79-2537 (D.C. Cir., December 21, 1979)~ In Helen Mining Co., the 

Commission held that a miner was not entitled under section 103(f),to walkaround pay for spot inspections pursuant to section 103(i) of the Act and 

noted that compensation was due only for a miner's accompaniment of a 

Federal inspector during a section 103(a) "regular" inspection. The Commission concluded therein that "regular" inspections were those described 

in the third sentence of section 103(a) of the Act, .!•!:;•, the four required 

annual inspections of underground mines and the two required annual inspections of surface mines. 

The parties in these cases have reached factual stipulations that the 

inspections giving rise to the citations at bar were all spot inspections, 

the type of inspections classified by the Commission as "nonregular" inspections in the Kentland-Elkhorn and Helen Mining decisions. There is therefore 

no issue as to any material fact. Under the circumstances, I find as a 

matter of law that Island Creek did not violate section 103(f) of the Act as 

charged in the citations at bar. 29 C.F.R. § 2700.64(b). 

Accordingly, the motions for summary decision filed in these cases are 

GRANTED, and Citation Nos. 635499, 635500 and 712200 are VACATED. The civil 

penalty proceeding, Docket No. WEVA 80-72, is DISMISSED. 1/ 

In connection with these cases Island Creek also seeks damages against 

MSHA in amounts equal to the wages it paid its employees as a result of the 

citations issued in these cases. Island Creek claims that it paid these 

wages to the miners representatives against its will, under protest and as a 

direct result of MSHA's erroneous interpretation of the Act. Island Creek 

requests that the damages be awarded as a setoff and credit against any 

future civil penalties that might properly be assessed by MSHA against it in 

other administrative proceedings before the Commission. It cites no authority in support of its proposition. It is clearly beyond the scope of my 

authority to grant any such remedy. Island Creek's remedy, if any, lies in 

an independent action against the employees who may have been erroneously 

overpaid. Under the circumstances Island Creek's claims for damages are 

DENIED. 

'];/ Island Creek's motions to dissolve previous 

are of course granted. See Secretary v. ~T~h~e:......::H~e~l;.J.:;;....:.:=.;;:=.;;:a..~~~;;if-, 

778 (March 21, 1980). 

1984 
Distribution: 

___ , - -

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor., U.S. Department of Labor, 

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

William K. Bodell II, Esq., Island Creek Coal Company, P.O. Box 11430, 

Lexington, KY 40575 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900-15th Street, 

NW., Washington, DC 20005 

1985 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

_O_EEICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520~ LEESBURG PIKE 

ITMANN COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

FALLS CHURCH, VIRGINIA 22041 

(703) "756-623() 

3 1 JUL 1980 

Application for Review 

Applicant 

Docket No. WEVA 80-9-R 

Respondent 

LOCAL UNION NO. 9690, DISTRICT 29, 

UNITED MINE WORKERS OF AMERICA, 

Complainant 

Complaint for Compensation 

Docket No. WEVA 80-129-C 

v. 

ITMANN COAL COMPANY, 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

ITMANN COAL COMPANY, 

Respondent 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 80-211 

A.C. No. 46-01576-03038H 

Itmann No. 3B Mine 

DECISION 

Appearances: Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Itmann Coal Company; 

James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor·, Philadelphia, Pennsylvania, for. Secretary of Labor, 

Mine Safety and Health Administration; 

Mary Lu Jordan, Esq., Washington, D.C., for United Mine Workers 

of America. 

Before: Judge James A. Laurenson 

1986 
JURISDICTION AND PROCEDURAL HISTORY 

On September 13, 1979, an inspector employed by the Mine Safety and 

Health Administration (hereinafter MSHA) issued an order of withdrawal for 

all areas of Mine No. 3B of the Itmann Coal Company (hereinafter Itmann). 

The order of withdrawal was based upon the inspector's finding of an imminent 

danger pursuant to section 107(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 817(a) (hereinafter the Act). The order also alleged a 

violation of 30 C.F.R. § 75.329. On September 28, 1979, Itmann filed an 

application for review of that order. On December 6, 1979, Local Union 

No. 9690, District 29, United Mine Workers of America (hereinafter UMWA) 

filed a complaint for compensation under section 111 of the Act, 30 u.s.c. 

§ 821. On February 26, 1980, MSHA filed a proposal for assessment of civil 

penalty. The three cases were consolidated pursuant to Procedural Rule 12 of 

the Federal Mine Safety and Health Review Commission, 29 C.F.R. § 2700.12. 

A hearing was held in Charleston, West Virginia, on April 14, 15, and 16, 

1980. Carl Worthington testified on behalf of MSHA. Bernard B. Shrewsberry 

and Arnold Rogers testified on behalf of the UMWA. Frank Beard, John 

Zachwieja, Harry Farmer, and Arvil R. Bailey testified on behalf of Itmann. 

All three parties filed posthearing briefs. 

ISSUES 

1. Whether the order of withdrawal due to imminent danger was properly 

issued. 

1987 
2. Whether Itmann violated the Act or regulations as charged by MSHA 

---· - -

and, if so, the amount of the civil penalty which should be assessed. 

3. Whether employees at the mine were idled by the order in question 

and, if so, whether they are entitled to receive compensation and, if so, the 

amount of compensation which they are entitled to receive. 

APPLICABLE LAW 

Section 107(a) of the Act, 30 u.s.c. § 817(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized_representative of the Secretary finds that an imminerttd~nger 

exists, such representative shall determine the extent of 

the area of such mine throughout which the danger exists, 

and issue an order requiring the operator of such mine to 

cause all persons, except those referred to in section 

104(c) to be withdrawn from, and to be prohibited from 

eptering, such area until an authorized representative of 

the Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent danger 

no longer exist. The issuance of an order under this subsection shall not preclude the issuance of a citation under 

section 104 or the proposing of a penalty under section 110. 

Section 3(j) of the Act, 30 u.s.c. § 802(j), states: "'imminent danger' 

means the existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 

Section 111 of the Act, 30 u.s.c. § 821, 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 

1988 
issued who. are idled by such order shall be entitled, regardless of the-·result or-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. If a 

coal or other mine or area of such mine is closed by an order 

issued under section 104 or section 107 of this title for a 

failure of the operator to comply with any mandatory health 

or safety standards, all miners who are idled due to such 

order shall be fully compensated after all interested parties 

are given an opportunity for a public hearing, which shall 

be expedited in such cases, and after such order is final, by 

the operator for lost time at their regular rates of pay for 

such time as the miners are idled by such closing, or for one 

week, whichever is the lesser. Whenever an operator violates 

or fails or refuses to comply with any order is~ued-urider section 103, section 104, or section 107 of this Act, all miners 

employed at the affected mine who would have been withdrawn 

from, or prevented from entering, such mine or area thereof as 

a result of such order shall be entitled to full compensation 

by the operator at their regular rates of pay, in addition to 

pay received for work performed after such order was issued, 

for the period beginning when such order was issued and ending 

when such order is complied with, vacated, or terminated. The 

Commission shall have authority to order compensation due under 

this section upon the filing of a complaint by a miner or his 

representative and after opportunity for hearing subject to 

section 554 of title 5, United States Code. 

Section llO(i) of the Act,_ 30 u.s.c. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

1.989. 
Section 303(z)(2) of the Act, 30 u.s.c. § 863(z)(2) and 30 C.F.R. 

§ 75.329 provide in pertinent part as follows: 

[A]ll areas from which pillars have been wholly or partially 

extracted and abandoned areas, as determined by the Secretary 

or his authorized representative, shall be ventilated by 

bleeder entries or by bleeder systems or equivalent means, or 

be sealed, as determined by the Secretary or his authorized 

representative. When ventilation of such areas is required, 

· such ventilation shall be maintained so as continuously to 

dilute, render harmless, and carry away methane and other 

explosive gases within such areas and to protect the active 

workings of such mine from the hazards of such methane and 

other explosive gases. Air coursed through underground areas 

from which pillars have been wholly or partially extracted 

which enters another split of air shall not contain more than 

2.0 volume per centum of methane, when tested at the point it 

enters such other split. When sealing is requ!red,-- such . 

seals shall be made in an approved manner so as to isolate 

with with explosion-proof bulkheads such areas from the active 

workings of the mine. 

STIPULATIONS 

. 

The parties stipulated the following: 

1. Itmann is the owner and operator of the Itmann No. 3 

Mine located in Wyoming County, West Virginia. 

2. Itmann and the Itmann No. 3 Mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The Administrative Law Judge has jurisdiction over 

all three proceedings. 

4. The inspector who issued the subject order and 

termination was a duly authorized representative of the 

Secretary of Labor. 

5. A true and correct copy of the subject order and 

termination were properly served upon the operator in 

accordance With section 107(d) of the 1977 Act. 

1990 
6. Co.pies of the subject order and termination are 

authentic and ntay·· be admitted into evidence for the purpose 

of establishing their issuance and not for the truthfulness 

or relevancy of any statements asserted therein. 

7 •. The 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 Itmann No. 3 Mine produced an annual tonnage of 535,357 (No. 3A equals 388,481 

and No. 3B equals 146,876) and the controlling company, 

Itmann Coal Company, had an annual tonnage of 1,627,963. 

8. 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 382 and the total 

number of inspection days in the preceding 24 months is 832. 

9. The alleged violation was abated in a timely 

manner and the operator demonstrated good faith in attaining 

abatement. 

10. The assessment of a civil penalty in these proceedings will not affect the operator's ability to continue in 

business. 

11. That by a certain closure order dated October 2, 

1969, issued in accordance with section 203(a)(l) of the 

Federal Coal Mine Safety Act, as amended, and as modified 

on October 9, 1969, the area described on the face of said 

order and modification was closed (see operator's Exhibit 

No. 2). Approximately 10 years later on September 13, 1979, 

Imminent Danger Order No. 0640580 was issued pursuant to 

section 107(a) of the 1977 Act as a result of an inspection 

in part of the same area which was still under the abovementioned closure order. 

12. The miners on the day shift of September 13, 1979, 

were paid .by Itmann for the balance of their shift arter the 

order was issued and the miners scheduled to work the afternoon shift on S~ptember 13, 1979, were paid for 4 hours of 

that shift. 

13. The maximum number of days' wages to which the 

miners who were idled by this order would be entitled is 

5 days' wages. 

1991 
SUMMARY OF THE EVIDENCE 

On October 2, 1969, a federal mine inspector issued an order of withdrawal due to imminent danger for the entire Sugar Run section of Itmann 

No. 3 Mine. The order was based on a finding of "loose coal, coaLdust, and 

float dust * * *·" One week later, following a cleanup and rock dusting of 

part of the affected area, the order was revised to reopen part of the 

affected area "to a point 100 feet inby the junction of the West Mains and 

that the Closure Orders remain in effect in all areas inby this point." 

Rather than attempting to abate the conditions that led to the closure orders 

for the part of the mine that remained closed, Itmann cho§e to abandon that 

part of the mine. Under 30 C.F.R. § 75.329, Itmann had the choice of sealing the abandoned area or ventilating the area by bleeder entries or bleeder 

systems. Itmann chose to ventilate the abandoned part of the mine. A 

ventilation plan for that purpose was approved by MSHA. 

In 1977, MSHA officials met with Itmann management to discuss the Government's concern about the accumulation of explosive methane gas in the 

abandoned areas of Itmann's No. 3B Mine. The Itmann No. 3B Mine is classified by MSHA as very gassy because it liberates 1,700,000 cubic feet of 

methane in 24 hours. Following that meeting, MSHA inspectors traveled the 

bleeder system in the abandoned areas of this mine in 1978 and found that 

the bleeder system was working properly. No violations were found in 1978. 

According to Frank Beard, Vice President of Operations ·at Itmann, one more 

inspection of the abandoned area prior to the time of the issuance of the 

instant order was performed by an MSHA inspecto_r. 

1992 
On September 13, 1979, Inspector Carl Worthington was assigned to conduct a ventilation saturation inspection of the abandoned areas of the mine. 

He initially checked the methane cont~nt of the air coming from the abandoned 

area at the point where it entered another split of air. He found .63 percent 

methane at this place. He then entered the abandoned area and continued to 

test for methane and air velocity. At a point approximately 1,500 feet inby 

the point where the two splits of air meet, he found 1.11 percent methane and 

840 cubic feet of air per minute. At a point approximately 2,200 feet inby 

the two splits of air, he found 1.78 percent methane and very slight movement 

of air. He continued inby until he reached a room approximately one-half mile 

inby the first point. At that place, he found methane as recorded on the 

digital methanometer at 9 percent and as subsequently analyzed in bottle samples between 9.0 and 10.21 percent and no movement of the air as demonstrated 

by the release of a chemical smoke cloud. Thereupon, he ordered the safety 

lamp ~xtinguished and informed Itmann that it had a section 107(a) order of 

withdrawal. 

Inspector Worthington testified that he issued the order of withdrawal 

for the following reasons: (1) methane in the range of 9 percent is explosive; (2) the methane could be ignited by a spark from a roof fall and there 

was a high potential for roof falls in this area; (3) the volume of methane 

in the explosive range filled the room from floor to roof; and (4) an explosion in the abandoned area could disrupt the ventilation and contaminate the 

active working sections of this mine with poisonous gas. He further testified that the accwnulation of explosive methane was caused by stoppings which 

1993 
were crushed and leaking. Hence, the air coursed through the bleeder system 

was "short circuited" before it entered the gob area. 

With regard to the probability of an ignition of the methane which would 

affect the miners working in the active West Main workings, Inspector 

Worthington expressed his opinion that such an occurrence was "very possible" 

and "not remote." On cross-examination by Itmann's counsel, he testified 

that he would place the probability of such an occurrence at that time in the 

50-50 range. He feared a probable disaster in which poisonous gases would be 

coursed into the active workings of the mine resulting in serious injury or 

death to the 60 miners working there. On cross-examinatign-,-- the inspector - ----

testified concerning his knowledge of approximately 10 incidents in his district where methane had been ignited by roof falls. He conceded that none of 

those incidents occurred at this mine but further stated that this mine had 

a histary of methane ignitions and liberation of methane. 

As part of his order of withdrawal, Inspector Worthington alleged that 

Itmann violated 30 C.F.R. § 75.329. He testified that the bleeder system for 

the abandoned area was inadequate to "dilute, render harmless, or carry away 

methane" because the stoppings were crushed and there was no ventilation of 

the area where methane in the explosive range was found. Inspector 

Worthington stated that he released a chemical smoke cloud in the room where 

the high concentration of methane was found and "smoke would not move; it just 

mushroomed up against the top; there was no movement at all there." He 

further testified that Itmann knew or should have known of this condition 

notwithstanding the 1969 closure orders for the following reasons: Itmann 

1994 
personnel had been in the abandoned areas while accompanying MSHA inspectors; 

and Itmann prepared a mine map of the abandoned area which was marked for the 

route of travel to avoid roof falls into the place where the accumulation of 

methane was found. Itmann's approved plan for the ventilation of the bleeder 

system required it to travel the bleeder system "if safe." At no time prior 

to the issuance of the order herein did Itmann assert that it would be unsafe 

to travel the bleeder system. 

Following the issuance of the order, the mine was closed for 10 working 

days until the condition was abated. At the time the order was terminated 

only • 9 percent methane was found in the area where thei::e--had been 10 percent 

previously. 

Bernard Shrewsberry, a safety inspector employed by the UMWA, testified 

that he had witnessed "balls of fire" resulting from sandstone roof falls in 

other•mines. Arnold Rogers, a UMWA safety committeeman at Itmann No. 3 Mine, 

testified that he witnessed sparks resulting from roof falls and roof bolts 

that had been subjected to pressure in Itmann Mine No. 1. 

Itmann does not challenge MSHA's evidence concerning the percentage of 

methane found or the fact that there was no movement of air ln the area wher~ 

explosive methane was found. Rather, Itmann posits its defense on its interpretation of 30 C.F.R. § 75.329 and the conclusion that no imminent danger 

existed. Itmann's position and evidence are as follows: (1) the proper 

place to take a methane reading to determine whether 30 C.F.R. § 75.329 has 

been violated is at the point where air coming from the abandoned area enters 

another split of air; (2) the possibility of a roof fall igniting the methane 
where it was found in the explosive range is less than 1 percent; and 

(3) even if there were an ignition of methane, the explosion would not affect 

ventilation to the active workings of the mine which would endanger the 

health and safety of the miners and any possible explosion could certainly 

not cause serious injury or death to any miner. 

Itmann's Vice President Frank Beard testified that prior to the issuance 

of the order in controversy, there had been two meetings between MSHA and 

Itmann concerning the problem of methane developing in the abandoned area of 

Itmann's No. 3B Mine. MSHA advised Itmann that the abandoned areas would be 

inspected for methane and ventilation. At no time prior _to--the issuance of - ---

the order herein, did Itmann contend that the 1969 closure orders prevented 

it from inspecting the abandoned areas. However, Mr. Beard stated that based 

upon his 16 years of coal mine employment, he never knew of any operator 

which traveled its bleeder system and inspected it for methane. He believed 

that it was dangerous to send men into this abandoned area. Itmann was never 

told by MSHA to take methane readings inside the abandoned area. For the 

foregoing reasons, Vice President Beard stated that there was no way Itmann 

could have been aware of this violation. 

On the issue of the possible existence of an imminent danger, Vice 

President Beard testified that he had observed roof falls at .jB and other 

mines but had never seen any such fall emit a spark. However, he conceded 

that methane in the range of 9 to 10 percent was the most dangerous and that 

the lack of air flow would increase the hazards connected with the presence 

of methane. He further conceded that the presence of float coal and coal 

1996 
dust would-increase the severity of any possible explosion and the extent of 

the area affected~- ~sed-upon Inspector Worthington's testimony of 10 prior 

ignitions of methane in the 700 mines in this district, Vice President Beard 

attempted to compute a probability of such an ignition in the area as less 

than 1 percent. Although he indicated that he had some experience with coal 

mine explosions, he conceded that no one could be sure what route an explosion would take. He further stated, "I don't know if it would have done any 

damage to any other part of the mine down in the area where the people * * * 

were working at that time." He did not think that an explosion would affect 

the active workings of the mine but if it short circuited the ventilation of 

the mine, the miners would know the ventilation was disrupted and would have 

30 to 35 minutes to walk out of the mine. 

John Zachwieja, who had been superintendent of the 3B Mine for approximately '2 months at that time of this order, corroborated much of the testimony of Vice President Beard. In addition, Superintendent Zachwieja 

expressed his opinion that 30 C.F.R. § 75.329 only requires the operator to 

keep bad air off the active workings of the mine. He testified that Itmann 

3B has a resident MSHA inspector on the premises every day because of the 

amount of methane liberated. He also conceded that roof b~lts subject to 

pressure could pop out and cause sparks and that the lack of air movement in 

the abandoned area would cause him concern. However, he contended that there 

was no imminent danger because the probability of a roof fall causing an 

ignition of methane was "nil" and no matter how much air was put into the 

abandoned gob area, it would never remove all of_ the methane. He further 

stated that the area between the place where the two- splits of air met and 

1997 
the place where methane was found in the explosive range was filled with roof 

falls which had occurred-cluring the 10 years of closure, the top had sagged, 

and roof bolts were broken. 

Section foreman Eugene Kaiser stated that when he was an hourly employee 

in 1970, he helped to drive two entries in the closed area to establish the 

bleeder system at the suggestion of the Federal Government. 

'nle UMWA and Itmann stipulated the identity of miners affected by the 

order of withdrawal, their daily rates of pay, and the number of days that 

they worked during the time this mine was closed by the order as set forth in 

the Appendix hereto and incorporated herein. 'nle partres-further stipulated 

that no more than 10 working days would have been scheduled at the Itmann 

No. 3B Mine had no order been issued. 

EVALUATION OF THE EVIDENCE 

Immin\:nt Danger 

The definition of the term "imminent danger" is identical in the 1969 

and 1977 Acts. In interpretating the 1969 Act, the Interior Board of Mine 

Operations Appeals required that before an imminent dange~ could be found to 

exist, the evidence must establish that "it is at least just as probable as 

not that the feared accident or disaster would occur before elimination of 

the danger." Freeman Coal Mining Corp., 2 IBMA 197, 212 (1973). Thereafter, 

this "as probable as not" standard was approved by the Fourth and Seventh 

Circuit Courts of Appeals. Eastern Associated Coal Company v. IBMA, 491 F.2d 

277 (4th Cir. 1974); Freeman Coal Mine Co. v. IBMA, 504 F.2d 741, 745 

(7th Cir. 1975); and Old Ben Coal Corp. v. IBMA, 523 F.2d 25 (7th Cir. 1975). 

1998 
However, in enacting the 1977 Act, the Senate Committee on Human Resources 

stated: 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent danger requires an examination of the potential of the risk to 

cause serious physical harm at any time. It is the Committee's view that the authority under this section is essential 

to the protection of miners and should be construed expansively by inspectors and the commission. 

Leg. Hist. of the Federal Mine Safety & Health Act of 1977, 95th Cong., 

1st Sess. (hereinafter Leg. Hist. 1977 Act) at 38. 

Earlier this year, the Federal Mine Safety and Health Review Commission 

(hereinafter Commission) announced that: 

"We ••• do not adopt or in any way approve the 'as 

probable as not' standard • • • • With respect to cases that 

arise under the [1977 Act], we will examine anew the question 

of what conditions or practices constitute an imminent 

d~nger." 

Pittsburg & Midway Coal Mining Co. v. MSHA, IBMA 76-57, April 21, 1980. 

Hence, in cases involving imminent danger orders under the 1977 Act, 

there is no longer a requirement that MSHA p~ove that "it is just as probable 

as not" that the accident or disaster would occur. In light of the legislative history of the 1977 Act, it is doubtful that any quantitative test can 

be applied to determine whether an imminent danger existed. Rather, each 

case must be evaluated in the light of the risk of serious physicial harm or 

death to which the affected miners are exposed under the conditions existing 

at the time the order was issued. 

1999 
I agree with the Senate Committee on Human Resources that imminent danger 

cannot "be defined Tu t:etins or- a percentage of probability that an accident 

will happen •••• " Therefore, I reject the testimony of Inspector 

Worthington that the probability of such an occurrence was 50 percent. Likewise, I reject Itmann's evidence that the possibility of such occurrence was 

approximately 1 percent.or nil. I find that the facts of the instant case 

establish the following: (1) A large volume of methane in the most explosive 

range of 9 to 10 percent existed in an abandoned area of the mine where there 

was no effective ventilation; (2) roof falls of sandstone and roof bolts can 

cause sparks sufficient to ignite methane in the range of 9 to 10 percent; 

(3) there is a history of roof falls in the abandoned area-of this mine; and 

(4) an ignition of methane at the point where it was found in the explosive 

range in the abandoned area of this mine could result in a severe explosion 

which could affect the ventilation of the active workings of the mine, and 

expose· the miners at these places to death or serious physical harm before 

the condition could reasonably be abated. Although I have rejected the 

inspector's estimate of a SO-percent chance of this occurrence, I find that 

the evidence of record supports his other testimony that the occurrence of 

the above potential accident is "very possible" and "not remote." Based upon 

the legislative history of the 1977 Act, and the decision of the Commission 

in Pittsburg & Midway Coal Mining Company v. MSHA, supra, I conclude that 

under the facts herein, the inspector acted properly in issuing the order of 

withdrawal due to imminent danger because there was a reasonable expectation 

that the condition which he found could cause death or serious physical harm 

before it could be abated. 

2000 

!: 
Violation of Mandatory Safety Standard 

The pertinent part of section 303(z)(2) and 30 C.F.R. § 75.329 is as 

follows: 

When ventilation of such areas is required, such ventilation shall be maintained so as continuously to dilute 

render harmless, and carry away methane and other explosive 

gases within such areas and to protect the active workings 

of the mine from the hazards of such methane and other 

explosive gases. Air coursed through underground areas from 

which pillars have been wholly or partially extracted which 

enters another split of air shall not contain more than 

2.0 volume per centum of methane when tested at the point it 

enters such other split. 

It should be noted that this regulation was mandated by section 303(z)(2) of 

the Act which was carried over in its entirety from the same section in the 

1969 Federal Coal Mine Health and Safety Act. 

MSHA and the UMWA contend that this section requires that when a ~enti-

. lation system is used in an abandoned area, a two-pronged test be met: (1) 

the ventilation system continuously dilute, render harmless, and· carry away 

methane and other explosive gases; and (2) air from abandoned areas which 

enters another split of air shall not contain more than 2 percent methane. 

Itmann contends that this. regulation should be read as a -whole and, if read 

as a whole, only requires one thing: that air from abandoned areas which 

enters another split of air shall not contain more than 2 percent methane. 

The legislative history of section 303(z)(2) of the. 1969 Act indicates 

that Congress intended for there to be a two-pronged test regarding ventilation of abandoned areas. The Conference Report states in pertinent part: 

2001 
When ventilation is required, the· Secretary or his 

inspector must .be·sati-sfied that the ventilation in such 

areas will be maintained so.as continuously to dilute, render 

harmless, and carry away methane and other explosive gases 

within such areas and to protect the active workings of the 

mine from hazards of such methane and other explosive gases. * * * As an additional safeguard when ventilation is 

required, the conference agreement provides that air coursed 

through undergroμnd areas from which pillars are wholly or 

partially extracted which enters another split of air shall 

not contain more than 2.0 volume per centum of methane, when 

tested at the point it enters such other split. The managers intend that this latter provision not be construed as 

permitting accumulations of methane near or in the explosive 

range in the pillared or abandoned areas on the basis that 

the methane in the return does not exceed such percentage. 

[Emphasis added.] 

Leg. Hist. of the Federal Coal Mine Health and Safety ~t--of 1969, 9lst Cong., 

2d Sess. (hereinafter Leg. Hist. 1969 Act) at 1044. 

Section 303(z) of the 1969 Act was derived from sections 303(p), (q) and 

(r) of the original House Bill. In the House Report, the intent of those 

sections is stated. The Report states in pertinent part: 

Methane, however, also accumulates in areas from which 

pillars have been removed and in other abandoned areas of a 

mine. These areas are often inaccessible because the roof 

has been deliberately allowed to fall or caving has otherwise 

occurred. In these cases,_it is not usually possible to 

determine methane concentrations without great physical risk, 

and in many instances, the areas are completely inaccessible. 

In addition, during the time pillars are being removed and 

the roof permitted to fall in a planned sequence, ventilation 

of the area can best be accomplished with present technology 

by ventilating the area in a systematic manner. 

These pillared and abandoned areas that are no longer 

being mined are not tested as frequently as working places, 

nor can they be given the same attention a working place 

receives. Consequently, these.areas represent a great potential source of explosions, which can lead to widespread 

underground destruction with attendant loss of life. 

Sections 303(p), (q), and .{r) are all. directed toward 

solving this difficult problem. It is the intent of these 

2002 
three sections to require that the areas of mines described 

above be made..-as.--safe-- as- present technology will permit so 

that the possibility of disasters from this source can be 

reduced or eliminated. There is general agreement among 

mining and safety engineers that bleeder systems are difficult to maintain in satisfactory conditions over long periods 

of time and they do not eliminate explosive concentrations of 

gas in the gob because of bypassing of air when the gob area 

extends over long distances. Sections 303(p), (q), and (r) 

require that when bleeder entries or systems or equivalent 

means are permitted instead of sealing, they shall be effective. This means that, where no superior method of ventilation is available, one of these may be approved by an 

authorized representative of the Secretary. When bleeder 

entries or systems are approved, they shall be used only 

under conditions where they can be adequately maintained, 

over short distances. Bleeder air shall not contain more 

than 2 volume per centum of explosive gases when sampled at 

a point immediately before entering another split of air. 

Leg. Hist. 1969 Act at 578-79. 

This language makes it clear that Itmann's argument on this issue is 

incorrect. Just because the percentage of methane is below 2 percent does 

not m~an that an operator has not violated this section of the Act. Even if 

the percentage of methane in the air from the abondoned·area which enters 

another split of air is below 2 percent, the operator violates this section 

if it has not maintained ventilation "so as continuously to dilute, render 

harmless, and carry away methane and other explosive gases" in the abandoned 

area. The legislative history states that this regulation means that "such 

ventilation will be adequate to insure that no explosive concentrations of 

methane or other gases will be in this area." Leg. Hist. 1969 Act at 1044. 

All parties concede that the methane content of the air from the abandoned area of this mine at the point where it entered another split of air 

was less than 2 percent. However, I have already found that 30 C.F.R. § 

75.329 also requires that the ventilation of the abandoned area "be 

2003 
maintained so a_s continuously to dilute, render harmless, and to carry away 

methane and explosive gases within such areas • " . . . Inspector Worthington 

testified that there was no movement of the air at the place where methane 

in the explosive range was found. Itmann presented no ·evidence to contradiet this testimony. Accordingly, I find that Itmann violated 30 C.F.R. 

§ 75.329 by failing ·to maintain ventilation of the abandoned area of its 

mine as required by this regulation. Itmann's belated assertion that it 

was unsafe for its employees to travel the abandoned area and that any such 

travel would be in violation of the 1969 closure orders is rejected and 

will be discussed under the criteria for assessing a civil penalty. 

Civil Penalty 

Since I have found that Itmann violated 30 C.F.R. § 75.329, the next 

issue is the amount of the civil penalty to be assessed. In assessing a 

civil penalty, the six criteria set forth in section llO(i) of the Act 

shall be considered. As pertinent here, I have considered Stipulations 

Nos. 7 through 10 concerning Itmann's previous history, size of business, 

ability to continue in business, and good faith in attempting to achieve 

rapid compliance. The remaining criteria to be discussed are whether 

Itmann was negligent and the gravity of the violation. 

Itmann was notified by MSHA late in 1977 that the Government was concerned about the possible accumulation of explosive gases in the abandoned 

area of this mine. During the 2 years after that notice, MSHA inspected the 

abandoned area on two occasions prior to the inspection on which the instant 

order was issued. At no time prior to the issuance of this order did Itmann 

claim that it was unsafe· to travel the abandoned area or that such travel 

2004 
would be in violation of the 1969 closure orders for the abandoned section. 

The evidence establishes that Itmann prepared a mine map of the abandoned 

areas showing roof falls which had occurred since the 1969 orders and assigned 

its employees to accompany MSHA inspectors into the abandoned area without 

protest. The conclusion to be drawn from this evidence is that Itmann knew 

that it was required.to properly ventilate the abandoned area and could not 

rely solely upon the percentage of methane at the point were the air coming 

out of the abandoned area entered another split of air. Hence, its failure 

to adequately ventilate the abandoned area of the mine constitutes ordinary 

negligence. 

In upholding the order of withdrawal based on imminent danger herein, 

I have previously found that miners employed in the active workings of the 

mine were exposed to serious physical harm or death due to the condition 

that e~isted. The evidence establishes that more than 40 miners worked in 

the affected area on each shift for three shifts a day. Theref~re, I find 

that this was a very serious violation. 

Based upon the evidence of record and the criteria set forth in section 

tion llO(i) of the Act, I conclude that a civil penalty of $2,000 should be 

imposed for the violation found to have occurred. 

Entitlement of Miners 

Section 111 of the Act provides in pertinent part: 

If a coal or other mine or area of such mine is closed by 

an order issued under section 104 or section 107 of this title 

for a failure of the operator to comply with any mandatory 

health or safety standards, all miners who are idled due to 

such order shall be ·fully compensated after all interested 

2005 
parties are given an opportunity for a public hearing, which 

shall be expe_d_ite~ Jn.. s.uch cases, and after such order is 

final, by the operator for lost time at their regular rates of 

pay for such time as the miners are idled by such closing, or 

for 1 week, whichever is the lesser. 

The purpose of the section is outlined at page 634 of the Legislative 

History of the 1977 Act which states: 

Miners entitlements resulting from closure orders 

As the Committee has consistently noted, the primary objective of this Act is to assure the maximum safety and health of 

miners. For this reason, the bill provides at Section 112 

[enacted as section 111] that miners who are withdrawn from 

a mine because of the issuance of a withdrawal order shall 

receive certain compensation during periods of their withdrawal. This provision, drawn from the Coal Act, rs- not 

intended to be punitive, but recognizes that miners should 

not lose pay because of the operator's violations, or because 

of an imminent danger which was totally outside their control. 

It is therefore a remedial provision which also furnishes 

added incentive for the operator to comply with the law. 

I have already found the following facts to be established by the prepondera~ce of the evidence: (1) Itmann's 3B Mine was closed by an order properly 

issued under section 107 of the Act; (2) Itmann failed to comply with the mandatory safety standard set forth at 30 C.F.R. § 75.329 and that failure caused 

the mine to be closed; and (3) the mine in question was closed for 10 working 

days. Based upon the above findings, it follows that all miners who were 

idled by this order are entitled to full compensation "at their regular rates 

of pay for such time as the miners are idled by such closing, or for 1 week, 

whichever is the lesser." Itmann and the UMWA stipulated the identity of the 

miners affected by the order, their daily rates of pay, the number of day~ 

they worked and the number of days they were idled during the time this mine 

was closed. These stipulations are included the Appendix to this decision 

which is attached hereto and incorporated herein. 

2006 
However, Itmann and the UMWA disagree on the amount of compensation owed. 

Itmanns position is as follows: 

Section 111 only provides for the miner to be compensated 

for a maximum of one week (5 days). Therefore, any time that 

an individual was permitted to work by Itmann during the ten 

(10) day period must be subtracted from the maximum five 

(5) day compensable period to determine compensation due. 

By way of illustration, Itmann contends that a miner who worked for 5 of the 

10 days that the mine was closed would be entitled to no compensation under 

section 111. 

On the other hand, the UMWA' s position is as follow~_L--· 

The UMWA contends that the number of days worked by a 

particular miner should be subtracted from the total number 

of days that the 3B mine would have been in operation between 

September 13 and September 28, 1979, had the order not been 

issued (in this case 10 days) in order to determine how many 

days a miner was actually idled by the order. If the period 

df time the miner was idled is five or more days, the miner 

would be awarded only five days compensation. If the period 

of time the miner was idled is less than five days, then the 

miner would be awarded compensation only for the one, two, 

three or four days the miner was actually idled. 

Applying the UMWA's position to the prior illustration, .the UMWA contends that 

the miner who worked for 5 of the 10 days the mine was closed would be 

entitled to 5 days' wages under section 111 of the Act. 

While the specific issue concerning the determination of "all miners who 

are idled due to such order •••• " under section 111 ·of the 1977 Act has 

not been decided by the Commission, a similar issue has been addressed in 

three recent cases. In Youngstown Mines Corporation, Docket No. HOPE 76-231, 

August 15, 1979, the union sought compensation under section llO(a) of the 

1969 Act. MESA issued a ·withdrawal ord~r under section 104(b) of the 1969 

2007 
Act because the 9perator failed to abate a violation. All workers on the 

shift when the order was issued were assigned to abatement work. The 

workers on the next shift (the night shift) were also assigned to abatement 

work. After 4 hours they were sent home. Section llO(a) of the 1969 Act 

provides in pertine~t part: 

If a coal mine or area of a coal mine is closed by an 

order issued under section 104 of this title, all miners working during the shift when such order was issued 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 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.tbert-regular 

rates of pay for the period they are idled, but for not more 

than four hours of such shift * * *· [Emphasis added.] 

The miners on the night shift were paid for the first 4 hours of the 

shift (the time they worked on abatement), but were not paid for the remainder 

of the· shift. The miners filed a claim for compensation for the 4 hours of 

the shift they did not work. 

On appeal, the operator contended that section llO(a) requires that an 

operator compensate the next working shift only for the first 4 hours 

following a withdrawal order. The operator argued that the miners were idled 

by the withdrawal order for the first 4 hours of their shift even.though they 

worked on abatement during that time and that they were only entitled to compensation for those first 4 hours. 

The Commission rejected the operator's interpretation of section llO(a). 

The Commission held that the miners were idled after they stopped work and 

were entitled to compensation for those 4 hours that they were idled because 

of the withdrawal order. · The Commission reasoned that but for the withdrawal 

2008 
order, the-miners would have worked the entire shift. Therefore, they were 

idled for 4 hours1'y -the order. They were entitled to compensation for those 

4 hours. The reasoning in Youngstown Mines. Inc., was affirmed by the Commission in Kanawha Coal Company, Docket No. HOPE 77-193, September 28, 1979, 

and in Peabody Coal Company, Docket No. 77-50, November 14, 1979. 

In the instant case, Itmann contends that und~r section 111 "any time 

that an individual was permitted to work by Itmann during the ten (10) day 

period must be subtracted from the maximum five (5) day compensable period 

to determine compensation time." Under the reasoning of Youngstown Mines. 

~' supra, this argument is rejected. The miners were idled by the withdrawal order. The amount of time that they were idled is the period of 

withdrawal minus the period of alternate work which they performed. They 

are entitled to be compensated for that period, up to a maximum of 1 week. 

However, Stipulation No. 12 in this matter provides that miners. on the 

day shift of September 13, 1979, were paid by Itmann for the balance of their 

shift after the order was issued (4 hours) and the miners who were scheduled 

to work the evening shift on that day were paid for 4 hours of that shift. 

Hence, all miners on the day and evening shift have already received 

one-half day's wages as compensation under this order. Section 111 clearly 

provides that the maximum amount of compensation that can be awarded under 

section 111 due to a closure order is 1 week. Stipulation No. 13 in this 

case provides that the maximum number of days' wages to which miners who were 

idled by the order would be entitled to 5 days' wages. Since the miners on 

the day and afternoon shifts have already received one-half day's wages, 

the period for which they can receive compensation is the number of days 

2009 
they were idled minus the 4 hours for which they have already been compen- . 

sated. The max:lniuni-coinpensation which they can receive in this matter is 

4-1/2 days' wages. Since the miners on the midnight shift received no compensation under this order, the period for which they can receive ~ompensation is the number of days they were idled up to 5 days. 

I have applied the foregoing principles to the schedules of miners 

employed in this mine and the amount of compensation due to each miner is 

set forth in the Appendix. For the day and evening shift, the amount of compensation due each miner is determined by multiplying the stipulated period 

for which they were idled by the order minus the 4 hours for which they have 

- --- already been compensated (up to 4-1/2 days) times their daily rate of pay. 

For the midnight shift, the amount of compensation due each miner is determined by multiplying the stipulated period they were idled by the order (up 

to 5 days) times their daily rate of pay. The total amount of compensation 

owed by Itmann to the 148 miners idled by this order is $46,194.73. 

The only remaining issue is the amount of interest, if any, which is 

awardable in this matter. The UMWA contends that the miners are entitled to 

12 percent interest on the compensation owed. Itmann does not address this 

issue in its brief. The UMWA concedes that "in the cases .. decided to date, 

the Commission has awarded interest at the rate of 6 percent per annum • . . . " 

However, the UMWA argues that the Connnission should follow the precedent of 

the National Labor Relations Board which, in 1977, abandoned 6 percent 

interest on back pay awards and followed the Internal Revenue Service 

"adjusted prime interest rate" which is currently 12 percent. The policy 

supporting. the higher rate of interest is as follows: to encourage prompt 

compliance with Commission orders; to encourage the operators to comply with 

2010 
the health and safety provisions of the Act; and to fully compensate the 

miners for their losses. I am aware that other judges of the Commission 

have awarded interest in excess of 6 percent per annum. Although the UMWA 

presents a persuasive argument in support of its position in favor'of higher 

interest, I am constrained to follow the decision of the Commission in 

Peabody Coal Company, Docket No. VINC 77-50, November 14, 1979, where it 

modified a judge's decision on interest to a rate of 6 percent per annum 

from the date compensation was due up to the date on which payment is made. 

If this policy is to be changed, it is for the Commission to make the change. 

There is no evidence of record to establish the precise dates on which . -- each of the miners was idled. However, since the order in question was issued 

on September 13, 1979, I find that the amount of compensation ordered paid 

herein was due to each of the miners 1 week thereafter: September 20,, 1979. 

Therefore, Itmann is ordered to pay each miner the amount of compensation due 

as set forth in the Appendix plus interest at the rate of 6 percent per annum 

from September 20, 1979, to the date payment is made. 

ORDER 

WHEREFORE, IT IS ORDERED that the application for review is DENIED and 

the subjec~ withdrawal order is AFFIRMED. 

IT IS FURTHER ORDERED that Itmann pay the sum of $2,000 within 30 days 

of the date of this decision as a civil penalty for the violation of 30 C.F.R. 

§ 75.329. 

2011 
IT IS FURTHER ORDERED that Itmann pay the amount of $46,194.73 as compensation to the 148 l.ndividua!iid.ners as set forth in the Appendix which is 

attached hereto and incorporated herein plus interest at the rate of 6 percent 

per annmn from September 20, 1979, to the date payment is made. 

a. 

s A. Laurenson, 

Distribution by Certified Mail: 

Karl T. Skrypak, Esq., Consoli!fation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15214 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Phil~9elphia, PA 

19104 . ---

Mary Lu Jordan, Esq., United Mine Workers of .America, 900 15th Street, 

NW., Washington, DC 20005 

2012 
APPENDIX 

'· 

DAY SHIFT 

Days of Amount of 

Days Days Compensation Compensation ,. 

Miners Dailz Rate Worked Idled Due Due 

Paul Hypes 70.38 3 7 4-1/2 $316.71 

David Goode 70.38 1 9 4-1/2 316.71 

Kenneth Woods 70.38 1 9 4-1/2 316.71 - Jerry Christian 70.38 0 10 4-:-1/2 316.71 

Kenny Dancy 75.68 3 7 4-1/2 340.56 

Patricia Cook 70.38 4 6 4-1/2 316.71 

Rickey Tawney 70.38 3 7 4-1/2 316.71 

Phyllis Alfrey 70.38 4 6 4-1/2 316. 71 

Danny R. Mitchem 70.38 3 7 4-1/2 316.71 

Shirley Rollins 70.38 2 8 4-1/2 316.71 

Ronnie Reed 70.38 2 8 4-1/2 316.71 

Jimmy Clyburn 70.38 4 6 4-1/2 316.71 

James Whitlow 70.38 2 8 4-JJ2·· 316.71 i." 

Freddie Fox 70.38 2 8 4-1/2 316.71 

Shales Elkins 69.38 10 0 0 0 

James Elswick 78.92 5 5 4-1/2 355.14 

Bobby Linsey 70.96 1 9 4-1/2 319.32 

Douglas Morgan 70.96 0 10 4-1/2 319.32 

Phillip Martin 70.38 7 3 2-1/2 175.95 

Richard Mutterback 72.74 0 10 4-1/2 327.33 

Ernest Carroll 70.38 0 10 4-1/2 316.71 

Dominick Delgrande 78.92 9 1 1/2 39.46 

Ronnie Tignor 70.38 3 7 4-1/2 316.71 

Milton Parsell 70.96 5 5 4-1/2 319.32 

Harrison Belcher 70.96 3 7 4-1/2 319.32 

Loren McGrady 75.68 5 5 4-1/2 340.56 

Melvin Thorn 72.74 5 5 4-1/2 327.33 

David Repass 78.92 6 4 3-1/2 276.22 

David Chipman 78.92 5 5 4-1/2 355.14 

Jack Garretson 78.92 0 10 4-1/2 355.14 

Gary· Lilly 78.92 2 8 4-1/2 ·- 355.14 

Larry E. Bailey 78.92 5 5 4-1/2 355.14 

Carlos Hatfield 70.38 5 5 4-1/2 316.71 

Deward Dillion 78.92 10 0 0 0 

Frank Campbell 72.74 3 7 4-1/2 327.33 

Johnny Lane 78.92 4 6 4-1/2 355.14 

Doug Perkins 78.92 0 10 4-1/2 355.14 

Thomas Bailey 72.74 5 5 4-1/2 327.33 

Charles Lindsay 65.79 7 3 2-1/2 164.48 : 

Terry Acord 70.38 4 6 4-1/2 316.71 : '. 

Leon Bailey 72.74 4 6 4-1/2 327.33 

Ronald Campbell 78.92 0 10 4.;.1/2 355.14 

2013 
DAY SHIFT (continued) 

Days Days ·Days Amount of 

Miners Dailz rate Worked Idled Compensation Compensation 

Due Due 

Rose Sansom 70.38 0 10 4-1/2 $316.71 

Frankie Campbell 75.68 0 10 4-1/2 340.56 

Frank Chipman 72.74 5 5 4-1/2 327.33 

Michael Brubaker 70.38 2 8 4-1/2 316.71 

Frank Crites 72.74 3 7 4-1/2 327.33 

Rodney Mitchem 70.38 3 7 4-1/2 316.71 

Kenner Dancy 78.92 2 8 4-1/2 355.14 

Robert Bailey 72.74 2 8 4-1/2 327.33 

Sherry Osborne 70.38 3 7 4-1/2 316.71 

Charles Dancy 78.92 5 5 4-1/2 355.14 

Gary Puckett 78.92 4 6 4-1/2 355.14 

Walter McKinney 70.38 5 5 4-1/2 316.71 

Wayne Pennington 78.92 9 1 1/2 39.46 

Garland Morgan 75.68 5 5 4-1/2 .. 340.56 

Billy J. Farruggia 78.92 9 1 . --y-12 39.46 

Virgil Harden 78.92 5 5 4-1/2 355.14 

Robert Bryson 78.92 2 8 4-1/2 355.14 

Gary Naylor 78.92 4 6 4-1/2 355.14 

Darrell Worley 78.92 5 5 4-1/2 355.14 

Paul Blankenship 75.68 4 6 4-1/2 340.56 

2014 
EVENING SHIFT ~-

-~ > -- --

Days Days Days of Amount of 

Miners DailX: Rate Worked Idled Compensation Compensation 

Due Due 

Charles Cole 80.52 6 4 3-1/2 $281.82 

Jess Cole 80.52 6 4 3-1/2 281.82 

John Cunningham 74.34 6 4 3-1/2 260.19 

Terrell Miller 74.34 7 3 2-1/2 185.85 

Roy Hall ·80.52 3 7 4-1/2 362-.34 

Richard Bekker 80.52 1/2 9-1/2 4-1/2 362.34 

James Repass 80.52 6 4 3-1/2 281.82 

Robert Payne 80.52 0 10 4-1/2 362.34 

Randy Lambert 80.52 0 10 4-1/2 362.34 

Thomas Johnson 80.52 6 4 3-1/2 281.82 

Steve Lester 80.52 0 10 4-1/2 362.34 

Johnny Hollingshead 74.34 0 10 4-1/2 334.53 

Roger Hollingshead 80.52 0 10 4-1/2 362.34 

Edward Gendron 80.52 8 2 1-1/2 120. 78 

Jerry Lusk 80.52 5 5 4-1:/Z 362.34 

William Thompson 74.34 0 10 4-1/2 334.53 

Freddy Dunford 74.34 6 4 3-1/2 260.19 

Gary Shrewsbury 77 .28 6 4 3-1/2 270.48 

Ward Johnson 80.52 9 1 1/2 40.26 

Richard T. Gray 80.52 5 5 4-1/2 362.34 

Mert Privett 80.52 9 1 1/2 40.26 

Galen 'clay 71.98 7 3 2-1/2 179.95 

Quincy Murdock 71.98 7 3 2-1/2 179. 95 

Shirley Altizer 71.98 8 2 1-1/2 107.97 

Larry Rogers 71.98 5 5 4-1/2 323.91 

James Archie 71.98 7 3 2-1/2 179.95 

Jimmy Trent 71.98 1 9 4-1/2 323.91 

Charles Cadle 71.98 0 10 4-1/2 323.91 

John Becklehimer 80.52 6 4 3-1/2 281.82 

Jack Goff 72.56 0 10 4-1/2 326.52 

Roger Lester 80.52 4-1/2 5-1/2 4-1/2 362.34 

Richard Blackburn 80.52 3-1/2 6-1/2 4-1/2 __ 362.34 

John Hughes 71.98 2 8 4-1/2 323.91 

Darrell Lilly 71.98 9 1 1/2 35.99 

Johnnie Farley 77 .28 0 10 4-1/2 347.76 

Allen Proffitt 71.98 1-1/2 8-1/2 4-1/2 323.91 

Ernest Mullins 71.98 10 0 0 0 

Jimmie Kincaid 71.98 2 8 4-1/2 323.91 

George Adkins 80.52 5-1/2 4-1/2 4 322.08 

A. Sizemore 80.52 3-1/2 6-1/2 4-1/2 362.34 

William Ramsey 77 .28 4 6 4-1/2 347.76 

Danny Stabbs 74.34 1 9 4-1/2 334.53 

David Blankenship 74.34 7 3 2-1/2 185.85 

201,5' 
MIDNIGHT SHIFT 

Days .Amount of 

Days Days Compensation Compensation 

Miners Daily Rate Worked Idled Due Due 

William Faulkner 75.14 3 7 5 $375.70 

Stephen Scott 75.14 3 7 5 375.70 

Richard L. Belcher 81.32 0 10 5 406.60 

Ronnie Shrewsbury 81.32 0 10 5 406.60 

Richard Howell 81.32 4 6 5 406.60 

Mark Hylton 75.14 2 8 5 375.70 

Joseph Pierce 81.32 9 1 1 81.32 

William Peters 8;J..32 3 7 5 406.60 

Danny Tiller 75.14 0 10 5 375.70 

Donald Skaggs 81.32 5 5 5 406.60 

Carl Belcher 81.32 1 9 5 406.60 

Esther O'Dell 72. 78 7 3 3 218.34 

Bennie Webb 78.08 2 8 5 390.40 

Jack Casteel 81.32 0 10 5 406.60 

Arnold Rogers 81.32 8 2 2- 162.64 ~ 

- James Lankford 75.14 2 8 5 375.70 

Charles Marquis 75.14 5 5 5 375.70 

Deborah Meadows 72. 78 5 5 5 363.90 

Jerry Rotenberry 81.32 2 8 5 406.60 

Granville McKinney 81.32 0 10 5 406.60 

Roger Bailey 75.14 0 10 5 375.70 

Bernard Atwood 81.32 6 4 4 325.28 

Larry G. Bailey 81.32 5 5 5 406.60 

Brett'Duncan 75.14 5 5 5 375.70 

Alan Handy 81.32 6 4 4 325.28 

Roy Osborne 81.32 9 1 1 81.32 

Frank Echols 81.32 4 6 5 406.60 

John McKinney 81.32 2 8 5 406.60 

Gregory Hatfield 81.32 4 6 5 406.60 

Hubert Scott 68.92 10 0 0 0 

Roger Redden 73.36 2 8 5 366.80 

William Jones 73.36 6 4 4 293.44 

James Cooper, Jr. 81.32 3 7 5-- 406.60 

Stanley Wriston 72. 78 3 7 5 363.90 

Raymond Ortiz 72.78 5 5 5 363.90 

Clyde McKinney 78.08 3 7 5 390.40 

Bernard Campbell 72.78 5 5 5 363.90 

Darrell Doss 72. 78 4 6 5 363.90 

Ronald Winston 72.78 2 8 5 363.90 

Johnny Hopkins 72.78 7 3 3 218.34 

Larry Lovejoy 72.78 7 3 3 218.34 

William Duncan 72.78 0 10 5 363.90 

George Cook 72.78 0 10 5 363.90 " 

Robert Mullins 72.78 6 4 4 291.12 

Paul Christian 72.78 6 4 4 291.12 

Clarence Dickens 81.32 7 3 3 243.96 

Bobby Bailey 81.32 6 4 4 325.28 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW Jl,JDGES . 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

S 1 JUL 1990 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-51-M 

Petitioner A.c. No. 11-02666-05001 

v. 

North American Pit 

NORTH AMERICAN SAND AND GRAVEL 

COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Miguel J. Carmona, Esq., Office of the Solicitor, 

u.s. Department of Labor, for Petitioner; 

Charles w. Barenfanger, Jr., President, North .American 

Sand and Gravel Company, Vandalia, Illinois, for 

Respondent. 

Judge Charles c. Moore, Jr. 

The hearing in the above case was scheduled to commence at 10 a.m. on 

June 11, 1980, in the Fayette County Courthouse in Vandalia, Illinois. The 

contract court reporter did not arrive that morning as scheduled and it was 

not until noon that we were able to obtain a local court reporter and commence the hearing. I realize that this wasted time was a hardship on Respondent but I do not believe it would be proper to consider this inconvenience 

in mitigation of any assessed penalties. 

It was stipulated that Respondent is a small operator but is able to 

afford the penalties assessed by the Assessment Office. Jurisdiction was 

also stipulated. There was no prior history of violation. 

Normally, this mine is operated by two people who start the day by 

doing maintenance on various equipment and getting the screens and shaker 

conveyors, etc., running. Thereafter, these two employees operate front-end 

loaders and move the sand and gravel from place to place. Most of the time, 

no one is in actual charge of the operation. When present, however, Mike 

Themig does direct the operations of the pit. Neither of the two employees 

who worked at the pit during the time of the inspection in this case is 

still employed there and Mike Themig was out of town for several days during 

the inspection. Only Inspector Aubuchon was able to testify as to the conditions in the pit at the time of the inspection. 

2017 
It was Mr. Themig' s testimony that an important part of a machine 

was broken and ·.tha~_.there-could be no production pending the receipt of 

this piece of machinery. ·I have no reason to doubt the testimony, but the 

fact remains that Inspector Aubuchon did observe the machinery running and 

the bulldozers operating and regardless of whether there was any actual 

production, the equipment was operating. Whatever dangerous situations 

existed were just as dangerous whether or not there was production. In 

this connection, one of Respondent's arguments was that if it had completely 

shut down the plant during the inspection, no citations could have been 

issued. That is not a correct statement of the law. While it is true that 

if an operator took a guard off of a sprocket or chain for the purpose of 

working in that area while the machinery was not running, there would be no 

violation, but shutting a piece of equipment down for the purpose of an 

MSHA inspection does not serve to avoid the issuance of a citation. I have 

heard a m.nnber of cases where the plant operator, as a courtesy, ceased 

operations to facilitate the inspector's investigation, but in no instance 

did the fact that the operation had ceased prohibit the inspector from 

issuing citations. 

Because basically only two miners operate in this pit; the inspector 

thought, with respect to all nine citations that he issued, that the probability of an accident was very low. I agree with the inspector's judgment 

because, for example, it would be very unlikely that a front-end loader operator would be injured by an unguarded V-belt or that he would be injured 

because the other front-end loader failed to have the required backup alarm. 

The improbability of injury, however, does not establish that there was no 

violation of a safety standard. 

The nine alleged violations here involve failure to have backup alarms, 

failure to provide berms at dumping locations, failure to provide guards 

at dangerous locations, failure to have a guard in place at such a location, 

and the failure to have a block-out system when electric-powered equipment 

is being repaired. These nine citations were issued during the very first 

inspection and, in fact, the first visit that any MSHA official had made 

to the mine. All of the citations issued by the inspector were abated 

promptly and in good faith. 

Citation Nos. 367287 and 367295 both allege that front-end loaders were 

not equipped with audible backup alarms in violation of 30 c.F.R. § 56.9-87. 

The evidence clearly establishes that the two articulated and wheel-type 

front-end loaders were not equipped with backup alarms and the drivers were 

not provided with observers to signal when it was safe to back up. The only 

factual question is whether the driver's view to the rear was obstructed. 

The inspector testified that the operator could not see a man 15 feet behind 

the rear portion of the front-end loader. Respondent offered a picture 

taken from the driver's compartment with the camera facing the rear, but the 

picture is inconclusive as to the operator's visibility. I find that the 

rearward visibility was obstructed and that backup alarms were required for 

these two pieces of equipment. In view of the circumstances already 

described, however, I find the negligence and gravity to be of a low order. 

A penalty of $10 is assessed for each of these citations. 

2018 
Citatfon No. 367288 alleges a violation of 30 c.F.R. § 56.9-54 in that 

berms were not pl ac.ed . ..at- t--he--side of a ramp leading up to a hopper. The 

standard alleged to have been violated requires berms or bumper blocks to 

prevent overtravel and overturning at dumping locations and does not require 

berms at the side of the ramp. The hopper would prevent overtravel in the 

dumping area. The inspector may have intended to cite section 59.9-22 but 

no mention of that section was made at the hearing. The citation is accordingly vacated. 

Citation Nos. 367290 and 367291 allege guards were not provided as 

required by 30 C.F.R, § 56.14-1. The inspector testified that while the 

pinch points involved in these two citations were high, they were nevertheless within reach. Respondent's Exhibit 3, a photograph, shows both the 

chain and drive pulley involved in these citations and indicates that they 

are both out of reach. I think the photograph, together with Mr. Themig's 

testimony, rebutted the prima facie case made by the inspector and left the 

Government with the burden of putting on rebuttal evidence as to the photograph. The Government failed to do so and in my opinion, failed to establish that these two violations existed. The citations are accordingly 

vacated. 

Citation No. 367289 alleges a violation of 30 C,F.R. § 56.14-1 in that 

a chain drive and sprocket 4 to 5 feet off the ground was not guarded. Anyone shoveling in the area could have been injured. The violation was established and Respondent was negligent in allowing the condition to exist. Any 

injury caused would have been serious but as previously stated because of 

the way in which this mine was operated, the probability of an injury was 

low. A penalty of $10 is assessed, 

Citation No. 367292 alleges a violation of 30 C,F.R. § 56.14-6 in that 

a chain drive pulley guard had been removed and not replaced before the 

machinery was started up. Again, the inspector was the only witness who 

observed the event and he testified that although the equipment was not running when he issued the citation, it was later operated without the guard in 

place. A violation was established but there was no evidence of negligence 

other than the fact that the violation occurred. The probability of injury 

was not high and a penalty of $10 is assessed. 

Citation No. 367293 alleges a violation of .30 C.F.R. § 56.14-1 in that 

a self-cleaning tail pulley 3 or 4 feet off the ground was not guarded. A 

self-cleaning tail pulley is hazardous in itself without regard to any pinch 

points and Respondent was clearly negligent in allowing such a condition to 

exist. I find the violation occurred, that Respondent was negligent but 

that the probability of an injury was low. A penalty of $15 is assessed. 

Citation No. 367294 alleges a violation of 30 C,F.R. § 56.12-16 in that 

there was no lock-out procedure to insure that the one working on electrical 

equipment would not be injured by someone else inadvertently starting the 

equipment. The inspector was told that when the equipment was being repaired, 

the fuses were taken out of the fuse box but when he looked at the fuse box 

while the equipment was down for repairs, the fuses were in place.· But even 

2019 
if the fuses had been removed, t4is is not the type of foolproof system that 

the regulation requires~ _If the person working on the equipment carried in 

his pocket the only-fuses available or if the breaker box had been locked 

open and the worker carried the key, the regulation would have been satisfied. lbe evidence clearly establishes a violation and the failure to have 

such a lock-out system did amount to negligence but again the probability 

of an injury was low because only two workers were in the plant. A penalty 

of $15 is assessed~ 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 30 days, a 

civil penalty in the total amount of $70. 

Distribution: 

~f ?77~ Z. 

Charles c. Moore, Jr. 

Administrative Law Judge 

Miguel J. Carmona, Esq., Office of the Solicitor, u.s. Department of 

Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604 

(Certified Mail) 

Charles W., Barenfanger, Jr., President, North American Sand and Gravel 

Company, P.O. Box 190, Vandalia, IL 62471 (Certified Mail) 

2020 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520J LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3 1 JUL 1980 

CONSOLIDATION COAL COMPANY, 

Applicant 

Application for Review 

v. 

Docket No. WEVA 79-129-R 

Order No. 804918 

April 16, i 979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Robinson Run No. 95 

Mine 

Appearances: 

Before: 

Respondent 

DECISION - --·-· 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Applicant; 

David E. Street, Esq., Office of the Solicitor, 

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

for Respondent. 

Judge Cook 

I. Procedural Background 

0n May 14, 1979, Consolidation Coal Company (Applicant) filed an application for review pursuant to section 105(d) !:_/ of the Federal Mine Safety 

1/ Section 105(d) provides: 

- "If, within 30 days of receipt thereof, an operator of a coal or other mine 

notifies the Secretary that he intends to contest the issuance or modification 

of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this 

section, or the reasonableness of the length of abatement time fixed in a 

citation or modification thereof issued under section 104, or any miner or 

representative of miners notifies the Secretary of an intention to contest 

the issuance, modification, or termination of any order issued under section 

104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall 

immediately advise the Commission of such notification, and the Commission 

shall afford an opportunity for a hearing (in accordance with section 554 

of title 5, United States Code, but without regard to subsection (a)(3) 

of such section), and thereafter shall issue an order, based on findings 

of fact, affirming, modifying, or vacating the Secretary's citation, order, 

or proposed penalty, or directing other appropriate relief. Such order shall 

become final 30 days after its issuance. The rules of procedure prescribed 

by the Commission shall provide affected miners or ·representatives of affected 

miners an opportunity to participate as parties to hearings under this 

section. The Commission shall take whatever action is necessary to expedite 

proceedings for hearing appeals of orders issued under section 104." 

2021 
and Health .Act of 1977, 30 u.s.c. § 815(d) (1978) (1977 Mine .Act) • .Applicant 

seeks review of .Order of Withdrawal No. 804918 issued at the Robinson Run 

No. 95 Mine on April-16,--1979, pursuant to the provisions of section 104(b) 

2/ of the 1977 Mine .Act. The application for review states, in part, as 

follows: 

1. At or about 1400 hours on March 22, 1979, Federal 

Coal Mine Inspector, James D. Satterfield (A.R. 0502) representing himself to be a duly authorized representative of 

the Secretary of Labor (hereinafter Inspector) issued 

Citation No. 0804951 (hereinafter Citation) pursuant to the 

provisions contained in Section 104(a) of the .Act to Howard F. 

Watson, Safety E$cort, for a condition he allegedly observed 

during an "AAA" .inspection (Safety and Health Inspection) in 

the Robinson Run No. 95 Mine, Identification No. 46-01318 

located in Northern West Virginia. A copy of this Citation 

is attached hereto as Exhibit "A" in accordance with 29 C.F.R. 

Section 2700.2l(b). 

2. Therein Inspector Satterfield cited Consol for a 

violation of 30 C.F.R. § 75.1403 and alleged under--tlie-heading 

captioned "Condition or Practice" the following: 

"Mud and water had accumulated in and along the load 

track near the Robinson Run Portal from No. 35 to No. 50 

Block. The flanges on the wheels of the rolling stock were 

throwing mud and water on the rails, making them wet and 

slick." 

3. Inspector Satterfield directed that the condition 

be abated by 0800 hours on March 30, 1979. 

4. Inspectors Satterfield and Allen issued three extensions of time permitted for abatement on March 30, 1979, 

April 5, 1979, and April 12, 1979. Copies of the extensions 

are attached hereto as Exhibits "B", "C" and "D" respectively.* 

J:./ Section 104(b) provides: 

"If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a) has not been totally abated within 

the period of time as originally fixed therein or as subsequently extended, 

and (2) that the period of time for the abatement should not be further 

extended, he shall determine the extent of the area affected by the violation 

and shall promptly issue an order requiring the operator of such mine or his 

agent to immediately cause all persons, except those persons referred to in 

subsection (c), to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary determines 

that ~uch violation has been abated." 

2022 
5. At or about 0905 hours on April 16, 1979, Inspector 

Bretzel W• Allen issued a Section 104(b) Order identified as 

No. 0804911f to-Ho;~r-d- F. Watson, Safety Escort. He determined 

that the alleged violation described in the above-mentioned 

citation had not been totally abated within the period of time 

as originally fixed therein and that the period of time for 

abatement should not be further extended. Inspector Allen 

stated: 

Although some work had been done to correct the condition, mud (mine refuse) still was present in the clearance space from 7 to 26 inches deep and the mine cars had 

been dragging in it and at 3 locations between the rails 

between number 35 and 50 blocks, in the loaded track entry. 

He further demanded that all persons except those referred 

to in Section 104(c) be withdrawn from "The loaded track entry 

between 35 and 50 blocks." The Order hereinabove described is 

the subject of this Application, and a copy thereof is attached 

hereto as Exhibit "E". 

6. At or about 0100 hours on April 17, 1979, Inspector 

Allen issued a termination of said Order. A copy of this 

termination is attached hereto as Exhibit "F".* 

7. Consol avers that the Order is invalid and void, and 

in support of its position states: 

* 

(a) That the conditions and practices described in the 

Order are inaccurate; 

(b) That no violation of mandatory health or safety 

standard 30 c.F.R. § 75.1403 occurred, as alleged; 

(c) That the Order was not issued pursuant to the same 

condition described in the Citation. 

(d) That Consol had made a good faith effort to abate 

the described conditions or practices within the 

prescribed time period; and 

(e) That it was unreasonable for the Inspector not to 

further extend the time for abatement and that said 

failure was an arbitrary and capricious act without 

basis in fact and without regard to ttie prevailing 

standards for the issuance of Section 104(b) Orders. 

* * * * * * 

WHEREFORE, Consol respectfully requests that its Application for Review be granted and for all of the above and other 

2023 
gopd reason, Consol additionally requests that the subject 

Order be vacated or set aside and that all actions taken or to 

be taken with-respect thereto or in consequence thereof be 

declared null, void and of no effect. 

In a footnote to paragraph 4 of the application for review, Applicant 

states the following: 

The extension of 

was granted to remove 

from 35 to 50 blocks, 

to a work stoppage." 

March 30, 1979, stated: "Additional time 

the mud and water from the load track, 

because the mine was idle 2 shifts due 

[SEE: Exhibit "B"] 

The extension of April 5, 1979, stated: "Part of the 

water has been removed from the loaded track entry between 

numbers 35 and 50 blocks. Additional time is needed to 

complete the cleaning of the entry." [SEE: Exhibit "C"] 

The extension of April 12, 1979, stated: "A drain 

ditch has been dug from number 35 to 50 block to drain the 

water from the track haulage entry. Additional- -t-ime is 

needed to complete the cleaning of the entry." [SEE: Exhibit "D"] --

In a footnote to paragraph 6 of the application for review, Applicant 

states the following: "The termination stated: 'The (mine refuse) mud was 

loaded into mine cars and removed from the loaded track entry between 

number 35 and 50 blocks.'" 

-The United Mine Workers of America (UMWA) and the Mine Safety and 

Health Administration (MSHA) filed answers on May 14, 1979, and May 25, 

1979, respectively. 

Pursuant to a notice of hearing issued on August 22, 1979, the first 

portion of the hearing was held on September 20, and September 21, 1979, in 

Washington, Pennsylvania. Representatives of MSHA and Applicant were present 

and participated. No one appeared to represent the UMWA (Tr. 4-6). 1/ 

During the hearing on September 21, 1979, it was noticed that the 

safeguard notice introduced into evidence by MSHA (Exh. M-4) was denominated 

1 WSH, January 15, 1973, 30 C.F.R. § 75.1403 and that the safeguard notice 

referred to in the 104(a) citation underlying the subject order of withdrawal was denominated 2 WHB, January 15, 1973. Counsel for MSHA r~quested 

a continuance to permit the presentation of evidence to resolve the apparent 

ambiguity. The motion was granted. 

3/ During the hearing on September 20, 1979, Applicant moved to dismiss 

the UMWA as a party to the proceeding (Tr. 6-7). An order granting Applicant's motion was issued immediately prior to the issuance of the decision 

in this case. Accordingly, the decision's caption reflects only the 

remaining parties. 

2024 

,-

r. 
On October 1, 1979, an order was issued continuing the hearing to 

reconvene on November 1, 1979, and, on October 10, 1979, a notice was issued 

designating a facirity--iri the-Somerset County Courthouse as the hearing site. 

On October 22, 1979, MSHA filed a motion for the issuance of two subpoenas 

duces tecum to require the production of documents at the November 1, 1979, 

hearing. Since the time permitted for filing a statement in opposition to 

the motion, 29 C.F.R. § 2700.8(b) and 2700.lO(b) (1979), extended beyond 

November 1, 1979, telephone conferences were conducted on October 23, and 

25, 1979, during which the undersigned Administrative Law Judge and representatives of the parties participated. Counsel for Applicant indicated 

that he would exercise .his right to file a response to the motion but that 

his response would not be forthcoming until after November 1, 1979. Additionally, counsel for MSHA stated that he would request the hearing site 

be changed to Morgantown, West Virginia due to the ill health of an MSHA 

witness. The parties were unable to reach agreement on this point. In 

view of these considerations, an order was issued on October 26, 1979, cancelling the hearing and continuing the proceeding indefinitely. 

Applicant filed its statement in opposition to MSHA's motion on 

November 1, 1979, and an order was issued on November 8, 1979, granting 

MSHA's motion for the issuance of subpoenas. 

On November 19, 1979, MSHA formally requested a change of the hearing 

site, and no statement in opposition thereto was filed by Applicant. Accordingly, on December 18, 1979, an order was issued granting MSHA's request. 

Additionally, the order contained an amended notice of hearing scheduling 

the continued hearing to reconvene on January 29, 1980, in Morgantown, 

West Virginia. Subsequent thereto, an amended notice was issued changing 

the hearing date. to January 28, 1980 • . 

The continued hearing reconvened as scheduled with representatives of 

MSHA and Applicant present and participating. No one appeared to represent 

the UMWA. A schedule for the submission of posthearing briefs was agreed 

upon following the presentation of the evidence, but difficulties experienced 

by counsel necessitated a revision thereof. MSHA submitted its posthearing · 

brief on April 17, 1980. Neither Applicant nor the UMWA f-iled posthearing 

briefs. 

II. Witnesses and Exhibits 

A. Witnesses 

MSHA called as its witnesses James D. Satterfield and Bretzel w. Allen, 

MSHA inspectors; Nelson Starcher, chairman of the union safety committee at 

the Robinson Run No. 95 Mine; Neta Matthey, a secretary in MSHA's Clarksburg 

office; and Crystal Sharp, a supervisory clerk-typist ·in MSHA's Morgantown 

office. 

Applicant called as its witnesses Richard Rieger, general superintendent 

of the Robinson Run No. 95 Mine; Donald Glover, shift safety inspector at the 

2025 
Robinson Run No. 95 Mine; and Howard Watson, a safety inspector at the Robinsort Run No. 95 Mine. 

Both Applicant and MSHA called Carl Trickett, safety supervisor at 

the Robinson Run No. 95 Mine, as a witness. 

B. Exhibits 

1. MSHA intr_oduced the following exhibits into evidence: 

M-1 is a copy of Citation No. 804951, March 22, 1979, 30 c.F.R. § 7.1403. 

·M-3 is a copy of subsequent action No. 804951-1 issued on March 30, 

1979, extending the time for abatement to 4:00 p.m., April 3, 1979. 

M-4 is a copy of notice to provide safeguards No. 1-WSH~ January 15, 

1973, 30 C.F.R. § 75.1403. 

M-5 is a copy of subsequent action No. 804951-2 issued on April 5, 

1979, extending the time for abatement to 8:00 a.m., April.12, 1979. --· - -~ 

M-6 is a copy of subsequent action No. 804951-3 issued on April 12, 

1979, extending the time for abatement to 8:00 a.m., April 16, 1979. 

M-7 is a copy of Order of Withdrawal No. 804918, April 16, 1979, 

30 C.F.R. § 7S.1403. 

M-8 is a copy of the termination of M-7. 

M-9 is a copy of M-4 placed in evidence to demonstrate that 

Applicant had in its possession notice to provide safeguards No. 1-WSH, 

January 15, 1973, 30 C.F.R. § 75.1403. 

M-10 is a copy of a document in Inspector Satterfield's possession 

on March 22, 1979, listing ~otices to provide safeguards issued at the 

Robinson Run No. 95 Mine. 

M-11 is a copy of a three page document pertaining to a request for 

documents from the Federal Records Center. 

2. Applicant introduced the following exhibits into evidence !!._/: 

!!._/ Exhibits 0-5 and 0-6 are copies of notices to provide safeguards issued 

to the Robinson Run No. 95 Mine on October 1, 1979. The exhibits were ruled 

irrelevant and immaterial to the issues presented herein and, accordingly, 

were not received in evidence. Both exhibits have been placed in a separate 

envelope to be retained with the official record in this case in the event 

of appellate review (See Tr. 507-512). 

2026 
0-1 is a general mine map of the Robinson Run No. 95 Mine. 

0-2 is a blow~up dEawi-ng-showing the area of the Robinson Run No. 95 

Mine cited in M-1. 

0-3 is a photograph of a track cleaning machine with the gathering 

arms closed. 

0-4 is a photograph of the machine depicted in 0-3 with the gathering 

arms open. 

III. Issues 

A. Whether Citation No. 80495l's misdescription of the underlying 

safeguard notice (Exh. M-4) deprived Applicant of legally adequate notice 

of the violation charged. 

B. If the misdescription did not deprive Applicant of legally adequate 

notice of the violation charged, then whether the condition cited in Citation No. 804951, March 22, 1979, constitutes a violation of the safeguard 

notice in that there was excess water on the track haulage ~oad. 

c. If the condition cited in Citation No. 804951 constitutes a violation of the safeguard notice, then whether the condition as to excess water 

on the track haulage road had been abated when Order No. 804918 was issued 

on April 16, 1979. 

D. If the condition cited in Citation No. 804951 constitutes a violation of the safeguard notice which had not been abated when Order No.· 804918 

was i~sued on April 16, 1979, then whether Inspector Allen acted unreasonably 

in failing to further extend the time period for abatement. 

IV. Opinion and Findings of Fact 

A. Stipulations 

1. Applicant owns and operates the Robinson Run No. 95 Mine (Tr. 19-20). 

2. The Robinson Run No. 95 Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977, Pub. L. No. 91-173, as amended by 

Pub. L. No. 95-164, 30 u.s.c. § 801 et seq~ (Tr. 19-20). 

3. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 105(d) of the 1977 Mine Act (Tr. 19-20). 

4. The subject safeguard, notice, order, and any· extensions and/or 

terminations thereof, were properly served by a duly authorized representative 

of the Secretary of Labor upon an agent of Applicant at the dates,.times, and 

places stated therein, and may be admitted into evidence for the purpose of 

establishing their issuance and not for the truthfulness or relevancy of any 

statements asserted therein (Tr. 20). 

2027 
.5. -On April 16, 1979, the Robinson Run No. 95 Mine had only one track 

cleaning machine of the !Y~~ shown in Applicant's Exhibits 0-3 and 0-4 

(Tr. 25). -- --- . 

B. The Condition of the Loaded Track Entry 

On March 22, 1979, Federal mine inspector James D. Satterfield issued 

104(a) Citation No. 804951 at Applicant's Robinson Run.No. 95 Mine addressing 

alleged accumulations of mud and water existing in the loaded track entry 

from No. 35 block to No. 50 block. (Exh. M-1). The cited section of track 

haulage road was approximately 1,500 feet in length and was located approximately 3,500 feet from the mine portal (Tr. 31-32). Three subsequent actions 

were issued by Inspector Satterfield and Federal mine inspector Bretzel W. 

Allen between March 30, 1979, and April 12, 1979, which ultimately extended 

the-time period for abatement to 8 a.m., April 16, 1979. (Exhs. M-3, M-5, 

M-6). The subject 104(b) order of withdrawal, Order No• 804918 (Exh. M-7), 

was issued by Inspector Allen at 9:05 a.m., April 16, 1979, after he came 

to the conclusion that the conditions described in Citation No. 804951 

had not been abated and that the time period for abatement should not be 

further extended. Abatement was accomplished by 9 or 10 p.m. that evening, 

and the order was subsequently terminated. (Exh. M-8) ;~-The circumstances 

surrounding the issuance of the citation, extensions and order are set 

forth in detail in the following paragraphs. 

Shortly after Inspector Satterfield began his tour of duty as a 

resident inspector at the Robinson Run No. 95 Mine in January, 1979, a 

meeting was held with top management officials to discuss the condition of 

the haulage tracks. In addition to Inspector Satterfield, Nelson Sta_rcher, 

walkaround representative of the miners and chairman of the union safety 

committee; Tony Germondo, the general superintendent at the time; Carl 

Trickett, the safety supervisor; Willard Starcher and Jimmy Germondo were 

present and participated. Inspector Satterfield apprised mine management that 

the haulage tracks were in very bad condition. Specifically, discussions were 

held as relates to mud and water in and along the load tracks. As a result 

of these discussions, the inspector received a verbal commitment from mine 

management to assign an adequate number of people per shift to rehabilitate 

the track. The rehabilitation work envisioned alleviation of the drainage 

problems, removal of the mud and any other debris from along the track, 

raising the tracks and tightening the loose joint~ in the rails. A total 

of eight employees per shift were to be assigned to the project, with four 

employees assigned to drainage and four employees assigned to jacking and 

leveling the track and performing the other necessary maintenance work. 

In addition to the first meeting, two or three additional meetings were held. 

The section of the loaded track entry from No. 35. to No. 50 block was 

on a grade ascending toward the portal. Most of the 1,500-foot section was 

characterized by a 6-percent grade with the exception of one level area 

in the vicinity of No. 48 block. The ribs in the cited haulage entry were 

curved, a characteristic attributable to the fact that the entry had been 

cut with a boring type mining machine. Inspector Satterfield testified 

that the entry was probably 12-1/2 to 13 feet wide at the widest part 

2028 
of the curvature and approximately 12 feet wide on the bottom (Tr. 51). 

Inspector Satterfield did not provide a precise figure as relates to the 

clearance between l:ne ·1ddes or the mine cars and the ribs, but testified 

that Applicant was in compliance with the minimum clearance criteria, 

i.e., 12 inches on the tight side and 24 inches on the walkway side with a 

possible maximum of approximately 4 feet in places. 5/ C.Onsidering the 

type of rails used in the Robinson Run No. 95 Mine, it is approximately 

8 inches from the railroad ties to the top of the rail. The best available 

evidence reveals that the flanges on the mine car wheels extend approximately one inch below the top of the rail. 

The evidence presented reveals that Inspector Satterfield made the 

observations prompting the issuance of Citation No. 804951 on March 22, 

1979, while riding to the surface on a type of personnel carrier known as 

a jeep traveling at a rate of speed estimated at between 5 and 10 miles 

per hour. The vehicle in which the inspector was riding was following 

approximately 500 feet behind another vehicle which was also heading toward 

the surface. The inspector testified that from his vantage point on the 

personnel carrier, looking down the mine floor to the rails, he was 

definitely able to observe water and mud along the track. He testified 

that the entire 1,500 feet of rail between Nos. 35 and ~O blocK was wet 

and muddy and expressed the opinion that the condition had to have been 

caused by the wheel flanges of the other vehicle depositing mud and water 

atop the rails. Inspector Satterfield testified that he had wal~ed through 

the area on prior occasions and that the last time he had stopped and 

observed the area between Nos. 35 and 50 block was around the first week 

in March, 1979. He testified that he decided to issue the citation because 

the area was getting progressively worse. The citation was issued at 4 p.m., 

Thursday, March 22, 1979, after arriving on the surface, and states that 

"[m]ud and water had accumulated in and along the load track near the 

Robinson Run Portal from No. 35 to No. 50 block. The flanges on.the wheels 

of the rolling stock were throwing mud and water on the rails, making them 

wet and slick" (Exh. M-1). 

Both the language of the citation and Inspector Satterfield's testimony 

reveal that the citation addresses itself solely to hazards posed to track 

mounted equipment as a result of wet or slick rails, an interpretation confirmed by the testimony of the other witnesses. The testimony of Inspectors 

Satterfield and Allen is rejected as unpers~asive to the extent it seeks to 

impose a broader interpretation. ~/ 

5/ It is understood that these figures are derived from 30 C.F.R. 

§ 75.1403-B(b) and (c), which set forth criteria for other safeguards. 

6/ Inspector Satterfield's testimony reveals two additional hazards posed to 

track mounted equipment by water saturated mine bottom'in that: (1) track 

mounted equipment using the rails would have a tendency to cause the track 

to sink farther into the bottom and work loose the fishplates securing the 

rails and bolts, and (2) the spikes holding the rails to the ties lose their 

holding power when the ties become saturated with water (Tr. 60, 93). 

Arguably, elimination of these additional hazards could require the removal 

of more water from the entry than would be required to prevent either wet 

2029 
The citation sets forth 8 a.m., March 30, 1979, as the termination 

due date and alleges a violation of mandatory safety standard 30 C.F.R. 

§ 75.1403 which ·!:!ie ~vJd.ence reveals is based upon Applicant's failure to 

comply with the requirements of Safeguard Notice 1 WSH, erroneously 

referred to in the citation as No. 2 WHB, issued on January 15, 1973. The 

safeguard notice provides, in part, that "[w]ater was over the main haulage 

track at the Nos. 3 and 4 block inby by the drift opening on the loaded 

track. All track haulage roads in this mine shall be kept free of excess 

water" (Exh. M-4). 

The testimony of Inspector Satterfield is at variance with the testimony 

of Mr. Trickett as relates to the conditions existing from No. 35 to No. 50 

block. The inspector's testimony identifies conditions existing in two 

distinguishable segments of the entry: the walkway side of the entry and 

the area that can be more narrowly identified as the area in and along the 

rails. As relates to the former, the inspector testified that accumulations 

varying from approximately six inches to approximately two feet in depth 7/ 

were present at various locations along the walkway side and that such -

accumulations represented both material cleaned from under the track in 

connection with the blocking of various sections and mud that had been 

cleaned from the sumps. The walkway was not as wet as th~.area between 

the rails because the actual track was lower than the walkway. 

Fn. 6 (continued) 

or slick rails per se or the clogging of the equipment's sanding devices. 

If the citation can be construed as encompassing these additional hazards, 

then it materially affects the determination as to how much water had to 

be re111oved from the cited portion of the loaded track entry in order ·to 

abate the citation. For the reasons set forth below, I conclude that 

the citation cannot be so construed. 

A mine operator cited for an alleged violation of the 1977 Mine Act or 

the mandatory safety standards is accorded adequate notice if the condition 

or practice is described with sufficient specificity to permit abatement 

and to allow adequate preparations for any potential hearing on the matter. 

Jim Walters Resources, Inc., 1 FMSHRC 1827, 1979 OSHD par. 24,046 (1979); 

Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975 OSHD par. 19,723 

(1975); Eastern Associated Coal Corporation, 1 IBMA 233, 79 I.D. 723, 1971-

1973 OSHD par. 15,388 (1972). In determining whether adequate notice has 

been given, the inquiry need not be confined to the four corners of the 

citati~. It is appropriate to consider other oral and written communications gi~n to the operator. Jim Walters Resources, Inc., supra. 

The citation, on its face, does not address itself to these additional 

hazards and there is no indication that either Inspector Satterfield or 

Inspector Allen ever expressly informed Applicant's agents that such hazards 

were, in fact, covered. Accordingly, the citation cannot be interpreted 

as encompassing these additional hazards. 

7/ The inspector testified that he did not measure the depth of the water 

and mud on March 22, 1979. All estimates are based on visual observations 

made from the moving jeep (Tr. 69). 

2030 
As relates to the actual track, the inspector testified that the mud 

and water did not;___ex~~I1d _fr.om rib to rib, but that it definitely entailed 

the 6-foot width of the railroad ties. He provided a general description 

of the existing conditions at one point in his testimony by stating that 

the balls of the rails were level with the mine floor, but subsequently 

clarified the statement by asserting that for a distance of 1,000 feet 

only the balls of the rails were visible above the mud and water. However, 

he expressed the opinion that the flanges on the mine car wheels could 

actually touch mud for the entire 1,500-foot distance. Even the sections 

of blocked track were wet. In many areas, no clear cut distinction could 

be drawn between free· flowing water and mud because what actually existed 

in those areas was a mixture having the consistency of a "slime-like gravy." 

Inspector Satterfield testified that water paralleled the rails continuously, but was unable to establish the existence of any locations where 

water actually covered the track on March 22, 1979. His testimony reveals 

seven or eight swag areas where water from overflowing sumps would collect 

on occasion and sometimes cover the track in those areas. 

Carl Trickett, the safety supervisor at the Robinson Run No. 95 Mine, 

walked along the track approximately 24 hours after the~fssuance of the 

citation and observed the existing conditions. 8/ He testified that 

he did not necessarily disagree with the basic information set forth in 

the citation, but testified that the entire area from No. 35 to No. 50 

block was not in such condition that either the wheels or wheel flanges 

would deposit mud or water on the rails. He testified that he observed 

approximately three swag areas totaling approximately 75 or 100 feet in 

length where the wheel flanges could have picked up mud and/or water _and 

depo~ited it on the track. At one point he testified that he did not 

observe any areas at the time where the water was actually over the rails, 

but subsequently testified that it covered the track in some areas. 

I am inclined to accept the inspector's characterization of the conditions existing in the subject section of the loaded track entry because 

on March 22, 1979, he actually observed wet and muddy rails while following 

the other vehicle out of the mine. Yi.r. Trickett was not afforded the 

opportunity to make a similar observation because he did not observe any 

trips going through the area. To a certain extent, it app~ars that Mr. 

Trickett's evaluation of the extent of the conditions was based upon the 

presence of drag marks in the pavement. It is significant to note that 

in many areas no clear differentiation could be drawn between free flowing 

water and mud because the material in those areas had the consistency of 

"slime-like gravy." Under.such conditions it is highly conceivable that 

drag marks would not be present in such areas even though the rolling 

stock actually achieved contact with the accumulations. 

8/ Although some abatement work had been performed when Mr. Trickett conducted his inspection (Tr. 234), I find it improbable that the conditions 

were materially different than on March 22, 1979. This determination is 

based upon the testimony describing the extensive efforts necessary to 

eliminate the conditions cited in the citation. 

2031 
On_ Friday, March 30, 1979, Inspector Satterfield returned to the mine 

and extended the time period for abatement to 4 p.m., April 3, 1979. 

The extension was granteal>ecause the mine had been idled for two shifts 

due to an unauthorized work stoppage (Exh. M-3). Subsequent to the issuance 

of the extension, Inspector Satterfield was hospitalized. Accordingly, the 

issuance of the March 30, 1979, extension ended his personal involvement 

in the activities surrounding the issuance of the withdrawal order. 

On Thursday, April 5, 1979, Inspector Allen extended the tim~ period 

for abatement to 8:00 a.m., April 12, 1979, citing the .following justification therefor: "Part of the water has been removed from the loaded track 

entry between numbers 35 and 50 blocks. Additional time is needed to 

complete the cleaning of the entry" (Exh. M-5). 

On Thursday, April 12, 1979, after walking the entire distance between 

No. 35 and No. 50 block, Inspector Allen extended the time period for abatement to 8 a.m., April 16, 1979, citing the following justifications 

therefor: "A drain ditch has been dug from number 35 to number 50 block 

to drain the water from the track haulage entry. Additional time is needed 

to complete the cleaning of the entry" (Exh. M-6). The inspector described 

the entry as "fairly wet," yet he found only three 1-oeatio-ns where, in his 

opinion, the wheel flanges could deposit water on the rails. Additionally, 

he testified that water covered the track for a distance of approximately 

ten feet in one area. 9/ Mud or mine refuse extended the entire distance 

from No. 35 to No. 50 block on the clearance side and a substantial portion, 

if not the vast majority, of this material had been placed there by the 

miners installing the drain ditch, which had been dug on the tight side 

of the entry. The material extracted during the ditch-digging operation 

had been deposited between the rails and between the rail and the rib 

on the clearance side such that the material was deepest in the vicinity 

of the rib. The inspector indicated that all of the mud or mine refuse 

would have to be removed from the clearance side, in addition to removal 

of the aforementioned water, before he would terminate the citation. 

Applicant's witnesses testified that mine management intended to use 

the track cleaning machine ov~r the weekend to remove the refuse, but 

was prevented from doing so because the machine burned out several motors. 

At 9:05 a.m., on Monday, April 16, 1979, Inspector Allen issued 104(b) 

Order of Withdrawal No. 804918 in which he stated that: "[a]lthough some 

work had been done to correct the condition, mud (mine refuse) still was 

present in the clearance space from 7 to 26 inches deep, and the mine cars 

had been dragging in it at three locations between the rails between number 

35 and 50 blocks, in the loaded track entry" (Exh. M-7). 

2._/ The inspector's testimony on this point appears to be at variance with 

the testimony of :Messrs. Glover and Watson (Tr. 390-391, 411, 432-433). It 

is unnecessary to resolve this credibility issue due to the ultimate outcome 

of this C?se. 

2032 
It appears that on April 16, 1979, no mud was actually in a position to 

be placed on the rails by the flanges of the mine car wheels. The mine 

refuse mentioned in- trre-braer-of withdrawal appears to refer primarily to 

the material which had been placed in the clearance space on the walkway 

side of the entry, material that extended the entire distance from No. 35 

to No. 50 block. The inspector testified that the mine cars could achieve 

contact with this material, drag it onto the track and precipitate a haulage wreck~ However, his testimony reveals that he was, in substantial part, 

requiring Applicant to remove the material from the walkway side qecause it 

posed a hazard to pedestrian traffic as opposed to hazards posed to trackmounted equipment. 

Of greater significance is the absence of standing water on the-rails, 

the inspector's inability to recall any water over the rails on April 16, 

1979, and his failure to mention the existence of wet or slick rails in the 

order of withdrawal. 

c. The Validity of Citation No. 804951 

A mine operator contesting the validity of a 104(b) order of withdrawal 

is entitled to challenge the existence of the violatiol1 _§_et forth in the 

underlying 104(a) citation. United Mine Workers of America v. Andrus, 

581 F.2d 888, 894 (D.C. Cir. 1978); Old Ben Coal Company, 6 IBMA 294, 

301 n. 3, 83 I.D. 335, 1976-1977 OSHD par. 21,094 (1976). The language of 

sections 104(a) and 104(b) of the 1977 Mine Act indicate that the. withdrawal order must be pronounced invalid where the underlying citation fails 

to describe a violation of either the 1977 Mine Act or a mandatory safety 

standard. In the instant case, the question as to whether a violation of 

30 C.F.R. § 75.1403 occurred is governed by the language of the safeguard 

notice on which the citation is based. 

Issues pertaining to the validity of the underlying 104(a) citation 

are set forth in Applicant's motion to dismiss and in the interpretation 

given to the safeguard notice. 

1. Applicant's Motion to Dismiss 

Citation No. 804951 states that it is based on Safeguard Notice 

No. 2 WHB, issued on January 15, 1973. Exhibit M-4, introduced in evidence 

as the safeg.uard notice referred to in the citation, bears identification 

number 1 w.s.H., January 15, 1973, 30 C.F.R. § 75:1403. During the hearing, 

Applicant cited this discrepancy as the basis for a motion to dismiss and 

advanced two arguments in support thereof. A ruling was held in abeyance. 

Applicant's first argument asserts that MSHA introduced the wrong 

safeguard notice in evidence and, accordingly, failed to prove the correct 

underlying safeguard. MSHA's counterargument asserts that the reference 

in the citation is a clerical error because Safeguard Notice 1 W.S.H., 

January 15, 1973, 30 C.F.R. § 75•1403 was the only safeguard notice issued 

at the Robinson Run No. 95 Mine on January 15, 1973 (MSHA's Posthearing 

2033 
Brief, pp. 11-12). Applicant's second argument asserts that any clerical 

error misdescribing the safeguard notice deprived Applicant of adequate 

notice and that tne--citation must stand or fall on the sole basis of the 

information appearing therein. 

The evidence presented reveals that Exhibit M-4 is the correct safeguard 

notice underlying Citation No. 804951. Mr. Carl Tricke-tt, appeared on behalf 

of MSHA pursuant to a subpoena duces tecum requiring him to produce "Safeguard 

Notice 2 WHB, issued January 15, 1973, if such document exists, and Safeguard 

1 WSH of January 15, 1973." In response to the subpoena, Mr. Trickett caused 

a sear.ch to be made of Applicant's records. The search produced Safeguard 

Notice No. 1 WSH (Exh. M-9) but failed to produce a safeguard notice denominated 2 WHB, issued on January 15, 1973. Additionally, Inspector Satterfield 

searched MSHA's records and the search failed to produce a safeguard notice 

denominated 2 WHB, issued on January 15, 1973. Furthermore, the entries contained in Exhibit M-10 confirm MSHA's assertion that the citation's reference 

to Safeguard Notice No. 2 WHB, issued on January 15, 1973, is, in fact, a 

misdescription of Safeguard Notice No. 1 WSH, January 15, 1973, 30 C.F.R. 

§ 75.1403. 

The remaining question presented in this regard -i-s<whether the misdescription deprived Applicant of adequate notice. I answer this question 

in the negative because Applicant has shown no prejudice to the preparation 

or presentation of its case resulting from the clerical error. See, Jim 

Walters Resources, Inc., 1 FMSHRC 1827, 1979 OSHD par. 24,046 (19'79);~-

0ld Ben Coal Company, IBMA No. 76-21 (FMSHRC, filed June 2, 1980). It could 

be argued that Applicant was prejudiced in its efforts to abate the citation 

as a result of the clerical error. The citation would appear to point to the 

existence of a safeguard notice requiring the removal of accumulations of 

both mud and water from haulage track entries in the Robinson Run No. 95 Mine 

whereas th~ actual safeguard notice, as construed in Part IV(C)(2) of this 

decision, requires only the removal of water from such areas (Exh. M-4). 

Accordingly, it could be argued that the misdescription of the safeguard 

notice led Applicant to believe that the mud was in violation of a previously 

issued safeguard and that the mud had to be removed in order to avoid the 

issuance of a section 104(b) order or withdrawal. However, the evidence presented reveals that at the time of the hearing Applicant maintained records 

of safeguard notices issued at the Robinson Run No. 95 Mine during the month 

of January 1973. The testimony of Mr. Trickett reveals that no one at mine 

mine attempted to locate a safeguard notice denominated 2 WHB, issued on 

January 15, 1973, when Citation No. 804951 was issued. Such a search would 

have revealed not only the nonexistence of such safeguard notice but also 

the existence of the correct safeguard notice, and the results of such a 

search should have prompted Applicant to request the inspector to modify the 

citation to delete any reference to mud. ~ ,,1 

In view of these considerations, Applicant's motion to dismiss will 

be denied. 

2034 
2. Construction of the Safeguard Notice 

____ , 

Safeguard Notice 1 WSH was issued on January 15, 1973, by Federal mine 

inspector Walter s. Hennis pursuant to the provisions of 30 C.F.R. § 75.1403 

which provides that "[o]ther safeguards adequate, in the judgment of the 

authorized representative of the Secretary, to minimize hazards with respect 

to transportation of men and materials shall be provided." 30 C.F.R. 

§ 75.1403-l(a) provides that: "Sections 75.1403-2 through 75.1403-11 set 

out the criteria by which an authorized representative of the Secretary 

will be guided in requiring other safeguards on a mine-bymine basis under 

§ 75.1403. Other safeguards may be required." [Emphasis added.] MSHA 

concedes that Safeguard Notice No. 1 WSH, January 15, 1973, 30 C.F.R. 

§ 75.1403 was issued pursuant to the guideline set forth in the second 

sentence of 30 C.F.R. § 75.1403-l(a) (Tr. 18-19). 

The safeguard notice requires only that "all track haulage roads in this 

mine shall be kept free of excess water", and contains no reference to mud. 

Citation No. 804951, however, cited Applicant for accumulations of both mud 

and water in the subject section of the entry. Additionally, the safeguard 

notice's statement that "water was over the main haulage track" indicates 

that the issuing inspector defined the term "excess water" as referring 

to either standing or flowing water. 

A question is presented as to whether the safeguard notice can be 

construed as encompassing both mud and excess water. For the reasons set 

forth below, I answer this question in the negative. 

I conclude that a safeguard notice must be strictly construed for two 

reasqns. First, 30 C.F.R. § 75.1403 accords substantial power to a Federal 

mine inspector in that it authorizes him to write what are, in effect, mandatory safety standards on a mine-by-mine basis to minimize hazard~ with 

respect to transportation of men and materials in that mine. Failure to 

provide the safeguard within the time specified and the failure to maintain 

the safeguard thereafter renders the mine operator susceptible to the issuance 

of a withdrawal order and to the assessment of civil penalties. 30 C.F.R. 

§ 75.1403-l(b). In short, the operator must comply with the requirements 

of a de facto mandatory safety standard promulgated without the protections 

or th-e-opportunity to submit comments afforded in the rule making process 

applicable to the promulgation of industry wide mandatory safety standards. 

Accordingly, the safeguard notice should be written precisely so that there 

will be no question as to the performance required by the operator. ]!}_/ 

Second, 30 C.F.R. § 75.1403-l(b) requires, in part, that the authorized 

representative of the Secretary shall advise the operator in writing "of a 

specific safeguard which is required pursuant to § 7 5 •. 1403." [Emphasis added~] 

The specificity requirement contained in the guidelines provides an alternative basis for concluding that the safeguard notice must be strictly construed • 

.!QI See also Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket 

No. BARB 78-652-P, 1 FMSHRC 1317 (September 4, 1979) (Franklin P. Michels, J.) 

2035 
In view of these considerations, I conclude that any reference to mud 

contained in Cit.itioll-No.--8G4951 must be deemed surplusage insofar as it 

forms the basis for a charge that Applicant violated the provisions of the 

safeguard notice, and that Applicant was properly cited only for the accumulations of water. 11/ The presence of the aforementioned water on March 22, 

1979, was a violation of 30 C.F.R. § 75.1403. 

D. Order of Withdrawal No. 804918 

Applicant was clearly in violation of the requirements of the safeguard 

notice when the citation was issued on March 22, 1979. On April 16, 1979, 

there was no actual violation of the technical requirement of the safeguard 

notice because no water was over the rails or could be deposited atop the 

rails by the wheels of haulage equipment. However, there was mud in the 

clearance area and some mud along the rail which could be deposited onto 

the rails. This was not an actual violation because the March 22, 1979, 

citation lawfully cited Applicant only for water. The mud condition, however, 

was still a danger and all future safeguard notices should refer to mud as 

well as water. 

However, assuming for pur~oses of argument that a-~iolation still existed 

when the April 16, 1979, order was issued, the evidence presented establishes 

that Inspector Allen acted unreasonably by failing to further extend the time 

period for abatement in view of the short amount of time required to complete 

the work that day and in view of the fact that he had seen fit to grant other 

more lengthy extensions in the past when conditions were worse. 

A well-founded argument could be advanced for the proposition that 

Applicant was not acting as rapidly as it should have acted in its abatement 

effo~ts at various times between March 22, 1979, and April 16, 1979. Consequently, a Federal mine inspector might have been justified in issuing 

an o·rder of withdrawal at an earlier time. It is unnecessary to make such 

a determination in the instant case because the scope of appropriate inquiry 

is considerably more limited, confined, as it is, to an assessment of the 

determinations that a reasonable man, given an inspector's qualifications, 

should have made in determining whether the issuance of an order of withdrawal was justified or whether the facts warranted the issuance of another 

11/ The Robinson Run No. 95 Mine is located in the Pittsburgh coal seam, a 

coal seam having fireclay bottom mud (Tr. 33-34). Inspector Satterfield 

testified that mud exists wherever water accompanies such mine bottom in an 

attempt to substantiate his belief that mud was encompassed by the safeguard notice. However, he admitted that the safeguard notice contains no 

express reference to mud even though it was written for the same mine in 

the same coal seam with the same type of bottom as was Citation No. 804951, 

and, accordingly, conceded that the safeguard notice dealt "primarily" with 

water (Tr. 40-42). 

I am unable to accept the inspector's broad interpretation of the safeguard notice because the document makes express reference only to standing 

water, a condition that in no way encompasses the existence of mud as a safety 

hazard at the time of its issuance. 

2036 
extension. To this extent, a consideration of past events is appropriate 

because it provide.s_v~luable--insight into the type of determinations that the 

inspector should have made prior to concluding that a further extension was 

unjustified. Facts material to this issue appear in the following paragraphs. 

Approximately 1,300 feet of drainage ditch had been dug on the tight 

side of the entry by April 5, 1979. The material extracted from the mine 

bottom during the ditch-digging operation had not been removed from the 

entry. Considering the conditions existing on April 5, 1979, the inspector 

testified that a four-man crew could clean approximately 20 to 25 ·feet 

per shift and that an eight-man crew could clean approximately 40 to 50 

feet per shift (Tr. 175-176). Therefore, it can be deduced that it would 

have required between 37.5 and 75 shifts for a four-man crew to clean 

the entry and that it would have required between 30 and 37.5 shifts for 

an eight-man crew to clean the entry (~, !:.•£•, Tr. 176). It should be 

noted that Inspector Allen would have used an eight-man crew to perform 

this task, if he had been the foreman (Tr. 175). The inspector also provided testimony as to the possibility of using the loading machine to 

expedite the cleaning operation (Tr. 176-178), but the testimony of Respondent's witnesses proves that the use of the loading machine would have 

been infeasible (see,!:.•£•, Tr. 247). 

The inspector's testimony indicates that when he inspected the area on 

April 12, 1979, he determined that no material had been cleaned from the 

area since the last extension was issued (Tr. 185-186). The April 12, 1979, 

extension allotted Applicant greater than five but less that six shifts, 

excluding the intervening weekend, to complete abatement (Tr. 115), and 

the inspector apprised mine management at the time that no further extensions would be given (Tr. 160-161). The extension was granted to permit 

Applicant to clean the area over the weekend (Tr. 392). The same day, 

mine management scheduled the track cleaning machine to clean the area on 

Saturday, April 14, 1979 (Tr. 249). It should be noted that approximately 

800 feet of track can be cleaned with the machine in one shift (Tr. 301). 

However, Applicant was able to clean only a minimal amount of the track 

on April 14, 1979, beca~se the track-cleaning machine burned up several 

motors (Tr. 252-255, 335). Difficulties experienced in obtaining replacement parts meant that the machine was not operational when the order was 

issued, but steps were being undertaken to assure its prompt repair (Tr. 334-

336). In fact, a motor had to be borrowed from another mine (Tr. 355). 

When Inspector Allen arrived at the mine on April 16, 1979, he was 

informed by mine management as to the difficulties experienced with the track 

cleaner (Tr. 143144, 190-191, 255-256). He did not direct any inquiries to 

mine management to determine the nature and extent of its abatement efforts 

since the time of the April 12, 1979, extension (Tr. 157), and did not 

inquire as to the steps Applicant proposed to undertake on April 16, 1979, 

to abate the condition. Such an inquiry would have revealed Applicant's 

decision to use the track cleaner as soon as it was repaired and would 

have revealed that a short extension was justified in view of the short 

amount of time required to abate the condition using the track cleaner. 

In fact, an additional extension was requested by Mr. Richard Rieger, the 

general superintendent, and Mr. Donald Glover, the shift safety inspector, 

2037 
during a meeting held with the inspector after the order was issued. In 

requesting this ·extension,-Mr. Rieger informed the inspector that an additional "shift or so" was needed to abate the condition (Tr. 352-353), 

while Mr. Glover apprised the inspector that the condition would be abated 

within 24 hours with the track cleaner. Instead, the inspector appears 

to have simply abandoned all hope that Applicant would abate the condition 

absent the issuance of a withdrawal order. He testified that, in his opinion, 

it would have been unreasonable to grant an additional extension because 

adequate time had already been given in the past, enough time, in his 

estimation; to have cleaned the area by hand (Tr. 154, 157-158). 

However, the information available to the inspector when the April 12, 

1979, extension was issued should have placed him on notice that Applicant 

could not be reasonably expected to hand clean the area by 8 a.m., 

April 16, 1979, because, by his own estimate, it would have required 

more than the intervening number of shifts to perform the task. The sole 

foreseeable methods of meeting the abatement deadline entailed the use of 

mechanized equipment only or the use of a combination of mechanized equipment and hand-cleaning crews. Yet, on April 16, 1979, Inspector Allen 

never attempted to ascertain the procedures Applicant w~s-actually using 

to abate the condition. Such actions cannot be appropriately classified 

as those of a reasonable man. The appropriate inquiries would have apprised 

the inspector that a short extension was warranted, especially in view of the 

lengthy extensions granted in the past when conditions were worse. Accordingly, assuming that a violation existed on April 16, 1979, the order of 

withdrawal would have to be vacated based upon a finding that the inspector 

acted unreasonably by failing to further extend the time period for abatement for the short period as requested by Applicant. 

~n addition thereto, when the order was issued on April 16, 1979, the 

condition described in the citation for which Applicant was lawfully cited 

had been abated. JJ:../ The flanges of the mine car wheels would not have 

deposited water on the rails. Any water remaining in the cited 1,500-foot 

section of the loaded track entry posed no hazard of the type described 

in the original safeguard notice as relates to the track-mounted equipment 

using the rails. For this additional reason, the order of withdrawal would 

have to be vacated. 

An additional consideration is worthy of mention at this time. The 

testimony reveals that the accumulations in the clearance space were more 

extensive on April 16, 1979, than on March 22, 1979, because the material 

extracted during the installation of the drainage ditch on the tight side 

of the entry had been deposited there. Inspector Allen's testimony reveals 

that the order of withdrawal addresses, in substantial part, hazards posed 

to pedestrian traffic using the walkway as a result of the accumulations 

deposited on the clearance side whereas Citation No. 8D4951 addresses only 

hazards posed to track mounted equipment. Section 104(b) of the 1977 Mine 

Act authorizes the issuance of an order of withdrawal based upon a finding 

12/ In view of this finding, it is unneeessary to address Applicant's 

claim that the condition had been abated by April 12, 1979 (Tr. 12, 14). 

2038 
by the authorized representative of the Secretary of Labor "(1) that 

a violation described in- a -cHation issued pursuant to [section 104(a)] 

has not been totally abated within the time period as originally fixed 

therein or as subsequently extended, and (2) that the period of time for 

the abatement should not be further extended * * *" (emphasis added). The 

emphasized portion of the statute clearly indicates that a 104(b) order 

of withdrawal must be based on· the continued existence of the same condition 

constituting the violation described in the underlying 104(a) citation. 13/ 

In substantial part, the mine refuse condition described in the 104(b) ~ 

order of withdrawal falls within the safeguard notice issuance guideline 

set forth in 30 C.F.R. § 75.1403-S(d) which provides that "[t]he c_learance 

space on all track haulage roads should be kept free of loose rock, supplies, 

and other loose materials," a guideline addressed to securing safe walkways 

for pedestrians using the haulage entries of underground coal mines. The 

104(a) citation did not address such a problem. Since the condition,termed 

"mine refuse" as described in the 104(b) order of withdrawal differs from 

the condition termed "mud* * *accumulated in and-along the load track" 

as described in the 104(a) citation, the order of withdrawal, if otherwise 

valid, would have to be modified to delete any reference to the conditions 

in the clearance area posing a hazard to pedestrian traffic. Other proper 

procedures should have been carried out by the inspector to deal with that 

pro bl em. ]:ii 

QI See also, s. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 618 

(1978), which states, in part, as follows: 

"The Committee believe [sic] that rapid abatement of vioiations is essential for the protection of miners. A violation of a standard which continues 

unabated constitutes a potential threat to the health and safety of miners. 

Therefore, if the violation is not eliminated by abatement in the specified period of time, the miners should be withdrawn from the area affected 

by the violation until the violation is abated. Section 105(b) provides 

the Secretary with such authority upon a determination that the violation 

has not been totally abated within the original or subsequently extended 

abatement period, and that the abatement period should not be further extended." 

ands. Rep. No. 95-461, 95th Cong., 1st Sess. (1977), reprinted in LEGISLATIVE 

HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at--1326 (1978) 

(Conference Report), which states, in part, as follows: 

"Section 105(b) (of section 201) of the Senate bill and the House amend 

ment, adopting Section 104(b) of the Coal Act, established substantially similar authority for the issuance of "failure to abate" withdrawal orders. In 

both versions, the issuance of such orders was to be based on findings 

of the Secretary or his authorized representative of the existence of the 

same set of circumstances." 

14/ The testimony of Inspectors Satterfield and Allen clearly demonstrates 

that accumulations of mud which can be deposited atop the rails of haulage 

tracks pose serious hazards to miners vis-a-vis track-inounted equipment. 

Logically, one can infer from the tenor of-their testimony that such hazards 

are well known and that the condition cited by Inspector Satterfield occurs 

in other underground mines throughout the coal mining industry. In view of 

this, it appears inappropriate to rely on the issuance of safeguard notices 

dealing with these hazards on a mine-by-mine basis when a mandatory safety 

standard applicable to all underground coal mines in the mining industry 

is clearly necessary to deal effectively with these hazards. 

2039 
v. Conclusions of Law 

1. The Administrative Law Judge has jurisdiction over the subject 

matter of, and the parties to, this proceeding. 

2. Consolidation Coal Company and its Robinson Run No. 95 Mine have 

been subject to the provisions of the 1977 Mine Act at all times relevant 

to this proceeding. 

3. Federal mine inspectors James D. Satterfield and Bretzel w. Allen 

were authorized representatives of the Secretary of Labor at all times 

relevant to this proceeding. 

4. Order No. 804918 was improperly issued and is therefore invalid. 

5. All of the conclusions of law set forth in Part IV of this decision 

are reaffirmed and incorporated herein. 

VI. Proposed Findings of Fact and Conclusions of Law 

MSHA submitted a posthearing brief. Applicant did not submit a 

posthearing brief. Counsel for both parties set forth on the record various 

arguments and statements as to the issues. The brief, arguments and statements as to the issues, insofar as they can be considered to have contained 

proposed findings and conclusions, have been considered fully, and except 

to the extent that such findings and conclusions have been expressly or 

impliedly affirmed in this decision, they are rejected on the ground that 

they are, in whole or in part, contrary to the facts and law or beca~se 

they ,are immaterial to the decision in this case. 

ORDER 

A. The prior determination granting Applicant's motion to dismiss 

the United Mine Workers of .America as a party to the above-captioned case 

is REAFFIRMED. 

B. Applicant's motion to dismiss, as set forth in Part IV(C)(l) of 

this decision, is DENIED. 

c. Based on the findings of fact and conclusions of law set forth 

in Parts IV and V of this decision, the application for review is GRANTED 

and Order No. 804918 is herewith VACATED. 

2040 
Distribution: 

-~ ' - -- Karl T. Skrypak, ·Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Marshall H. Harris, Esq., David E. Street, Esq., Office of the Solicitor, 

U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Thomas A. Mascolino, Counsel for Litigation, Office of the Solicitor, 

U.S. Department -of Labor, 4015 Wilson BOulevard, Arlington, VA 22203 

(Certified Mail) 

Harrison Combs, Esq., Joyce A. Hanula, Legal Assistant, United Mine 

Workers of America, 900 15th Street, NW., Washington, DC 20005 

(Certified ?-fail) · 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Administrator for Metal and Nonmetal Mine Safety and H~aith, U.S. 

Department of Labor 

Standard Distribution 

J;!.U.S. GOVERNMENT PRINTING OFFICE1 1980-311-143/3457 

2041