December Index 1980 

Commission Decisions 

12-02-80 CF & I Steel Corporation DENV 76-46 Pg. 3459 

12-04-80 Glenn Munsey v. Smitty Baker Coal CO. NORT 71-96 Pg. 3463 

12-09-80 Southern Ohio Coal Co. VINC 77-112 Pg. 3472 

12-10-80 Co-op Mining Co. DENV 79-1-P Pg. 3475 

12-19-80 Allied Chemical Corp. HOPE 78-722-P Pg. 3478 

Administrative Law Judge Decisions 

12-01-80 A. H. Smith Stone Co. VA 80-2-M Pg. 3486 

12-02-80 Gex Colorado, Inc. WEST 80-327-R Pg. 3494 

12-02-80 Gex Colorado, Inc. WEST 79-28-M Pg. 3499 

12.;..02-80 Gex Colorado, Inc. WEST 80-328-R Pg. 3503 

12-02-80 Carolina Stalite Co. BARB 79-319-P et al Pg. 3508 

12-04-80 Rockite Gravel Co. LAKE 80-130-M Pg. 3543 

12-05-80 Burgess Mining & Construction Corp. SE 80-47 Pg. 3554 

12-09-80 Mountain Energy, Inc. SE 80-5 Pg. 3558 

12-09-80 Grove Crushing Co. WEST 79-319-M Pg. 3567 

12-09-80 National Lime & Stone Co. VINj:: 79-99-PM Pg. 3572 

12-11-80 Neville Construction CENT 80-180-M Pg. 3586 

12-15-80 St. Joe Zinc Co. YORK 80-86-DM Pg. 3593 

12-16-80 Jaquays Mining Corp. WEST 79-233-M Pg. 3605 

12-16-80 Jaquays Mining Corp. DENV 79-458-M Pg. 3608 

12-16-80 Climax Molybdenum Co. DENV 79-122-M Pg. 3613 

12-16-80 Climax Molybdenum Co. DENV 78-541-M Pg. 3617 

12-16-80 Jaquays Mining Corp. WEST 80-1-M Pg. 3625 

12-16-80 Homestake Mining Co. CENT 80-92-M Pg. 3630 

12-17-80 Little Bill Coal Co. PIKE 78-308-P Pg. 3634 

12-17-80 Eastover Mining Co. ,. VA 80-84 Pg. 3673 

12-18-80 Penn Allegh Coal Co. PENN 80-i71-R Pg. 3678 

12-18-80 Climax Molybdenum Co. DENV 78-553-M Pg. 3681 

12-18-80 Maumee Haulers & Excavators LAKE 80-192-M Pg. 3708 

12-18-80 Maudlin Construction Co. CENT 80-114-M Pg. 3712 

12-18-80 Little Egypt Coal Co. VA 80-85 Pg. 3721 

12-18-80 Southern Ohio Coal Co. WEVA 80-487-D Pg. 3728 

12-22-80 S. M. Lorusso & Sons, Inc. YORK 79-49-M Pg. 3733 

12-24-80 Arizona Crushing Co. WEST H-195-M Pg. 3736 

12-30-80 Mathies Coal Co. PENN 80-277 Pg. 3740 

12-30-80 Clinchf ield Coal Co. NORT 78-387-P Pg. 3742 

12-30-80 Royal Darby Coal Co., Inc. KFNT 80-220 Pg. 3753 
Commission Decisions 

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DECEMBER 

Xhe following cases were Directed for Review during the month of December: 

Secretary of Labor, MSHA v. Kerr McGee Co!po~ation, CENT 79-156-M; 

(Judge Boltz, October 30, 1980) 

Secretary of Labor, MSHA v. Sigler Mining, Inc., WEVA 80-519; 

(Judge Kennedy, November 5, 1980) 

Secretary of Labor, MSHA v. Phillips Uranium Corporation, CENT 80-208-M; 

(Judge Boltz, October 27, 1980) 

Secretary of Labor, MSHA v. NACCO Mining Company, LAKE 80-290; (Judge 

Merlin, October· 31, 1980) 

Secretary of Labor, MSHA v. Ralph Foster & Sons, WEST 79-397-M; (Judge 

Morris, November 20, 1980) 

Secretary of Labor, MSHA v. Tazco, Inc., VA 80-121; (Judge Kennedy, 

November 17, 1980) 

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

Clinchfield Coal Company v. Secretary of Labor, MSHA, VA 79-98-R; 

(Judge Laurenson, October 23, 1980) 

Secretary of Labor, MSHA v. Hudson River Aggregates, Inc., YORK 80-13-M; 

(Judge Merlin, October ·27, 1980) 

Bobby Gooslin v. Kentucky Carbon Corporation, KENT 80-145-D; Petition 

for Interlocutory Review. 

Secretary of Labor, MSHA v. Lone Star Steel Company, DENV 79-291-PM, etc. 

(Judge Stewart, November 14, 1980) 
J 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CF&I STEEL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 2, 1980 

.. . 

DECISION 

Docket No. DENV 76-46 

IBMA No. 77-10 

This proceeding was initiated when CF&I Steel Corporation filed 

an application for review of an order of withdrawal issued on 

December 5, 1975, pursuant to section 104(c)(2) of the Federal Coal 

Mine Health and Safety Act of 1969. l/ The administrative law judge 

l/ Section 104(c) of the 1969 Coal Act provided: 

(1) If, upon any inspection of a coal mine, an authorized 

representative of the Secretary finds that there has been a 

violation of any mandatory health.or safety standard, and if he 

also finds that, while the conditions created by such violation 

do not cause imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he 

shall include such finding in any notice given to the operator 

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

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

notice, an authorized representative of the Secretary finds another 

violation of any mandatory health or safety standard and finds 

such violation to be also cuased by an unwarrantable failure of 

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

requiring the operator to cause all persons referred to in subsection (d) of this section, to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of t~e Secretary determines that such violation 

has.been abated. 

(2) If a withdrawal order with respect to any area in a mine 

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

withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar to 

those that resulted in the issuance of the withdrawal order under 

paragraph (1) of this subsection until such time as an inspector 

of such mine discloses no siwilar violations. Following an 

inspection of such mine which discloses no similar violations, 

the provisions of paragraph (1) of this subsection shall again 

be applicable to that mine. [Emphasis added.] 

3453 80-12-1 
granted CF&I's application for review and vacated the order, on the 

ground that the Mining Enforcement and Safety Administration (MESA) 

failed to prove that there had been no intervening "clean" inspection of 

the entire mine, within the meaning of section 104(c)(2). MESA 

appealed. JJ We affirm the judge. 

The withdrawal order alleged, inter alia, that a section 104(c)(l) 

withdrawal order had been issued on August 6, 1975, and that no inspection of the· entire mine had been made since August 6, 1975 which disclosed no similar violation. The judge found that MESA had conducted 

two complete regular quarterly inspections of this mine between (1) July 

25, 1975 and September 25, 1975 (this inspection took 23 days--19 of 

''lhich were after the section 104(c) (1) order of August 6, 1975); and (2) 

October 2, 1975 to December 16, 1975 (this inspection took 15 days--11 

of which were prior to the section 104(c)(2) order of December 5, 1975). 

Of the 38 inspection days required to complete both inspections, 30 were 

in the period between August 6 and December 5, 1975. The MESA inspector 

testified that he did not know whether a complete mine inspection had 

occurred during those 30 inspection days, but that it was possible. 

MESA argued, however, that a "clean" inspection of the entire mine 

within the meaning of section 104(c)(2) occurs only when MESA conducts a 

regular quarterly inspection from beginning to end after the underlying 

section 104(c)(l) order has been issued. The judge disagreed stating: 

The evidence presented is not sufficient to support a finding that 

there has not been a complete inspection of the entire mine following the issuance of the 104(c)(l) order which disclosed no similar 

violations. I cannot conclude, simply because MESA had not completed an entirely new 3 month cycle of inspections following the 

issuance of the (c)(l) order, that 'there had not, in fact, been an 

intervening "clean" inspection of the entire mine. [Decision at 

4.] 

He concluded that MESA had not presented a prima facie case to show that 

a "clean" inspection of the entire mine had not occurred in the period 

between the two orders. 

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

Secretary of Interior's Board of Mine Operations Appeals under the 1969 

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.A. §961 (1978). 

34CO 
We agree with the judge that a prerequisite to the issuance of an 

order of w· awal under se~ti'Oil 104 c 969 Coal Act was the 

absence of an intervening "clean" ins e entire mine, 

that it was MESA s obligation to present a prima facie case of t ac 

"10 sustain the order. · 

We also agree that MESA failed to prove this prerequisite in this 

case. The requirement of a clean inspection before an operator could 

avoid being subjected to section 104(c)(2) withdrawal orders was intended to further public interest in promoting earnest and continuous 

compliance with mandatory safety and health standards. Nothing in the 

record, however, suggests that the Secretary's position--that only a 

complete regular quarterly inspection can constitute a "clean" inspection of the entire mine--is necessary to achieve this interest. 

Accordingly, the judge's decision is affirmed. 

, Commissioner 

\,\\YJJ.IO ·1,.~ ·\\O\~·J.llfil{ \\LQJ~ Marian Pearlman Nease, Commissioner 

3461 
Distribution 

Ronald E. Meisburg, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

John F. Welborn, Esq. 

Welborn, Dufford, Cook & Brown 

1518 United Bank Center 

Denver, Colorado 80202 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

3462 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GLENN MUNSEY 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 4, 1980 

SMITTY BAKER COAL COMP Ai.W, INC. , 

P&P COAL COMP.Ai.~Y, AND 

Docket No. NORT 71-96 

IBMA 72-21 

RALPH BAKER 

DECISION 

The United States Court of App~als for the District of Columbia 

Circuit remanded this case to the Col!ll!lission to consider the following 

issues: 

1) Whether Ralph Baker can be ordered to rehire Glenn.Munsey at 

Mason Coal Company; 2) whether P&P Coal Company is a successor to the 

Smitty Baker Coal Company which may be ordered to reinstate Munsey; and 

3) whether P&P Coal Company, even if not a successor, may be liable 

under section llO(b)(l) of the Federal Coal Mine Health and Safety Act 

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

Act") for refusing to hire Munsey. Munsev v. FMSHRC, 595 F.2d 735, 745 

(D.c. Cir. 1978). 

On appeal, the D.C. Circuit affirmed the administrative law judge's 

finding that Smitty Baker Coal Company and Ralph Baker violated section 

llO(b) of the 1969 Coal Act. The incidents leading to the finding of a 

violation of the Act's anti-discrimination provision occurred in 1971. 

Since that time this case has twice reached the Court of Appeals and has 

now come to the Commission to determine what remedy is due to Glenn 

Munsey and who must provide i.t. In the intervening time Smitty Baker 

Coal Company ceased mining operations; P&P Coal Company purchased a 

lease and equipment from Smitty Baker Coal Company and opened the 

former Smitty Baker No. 2 Mine; and Ralph Baker incorporated a new 

mining company, Mason Coal Company, in a different location from that of 

the former Smitty Bake·r Coal Company operation. 

For the reasons that follow, we hold that Ralph Baker can be 

ordered to reinstate Munsey at Hason Coal Company; that P&P Coal is a 

successor to Smitty Baker Coal Company; and that Ralph Baker, Smitty 

Baker Coal Company, and P&P Coal Company are jointly and severally 

liable for the illegal discrimination against Glenn Munsey. We further 

hold that P&P Coal cannot be held liable for an alleged independent act 

of discrimination arising out of its asserted failure to hire Munsey. 

Finally, we remand for additional findings on whether appropriate offers 

of reinstatement have already been made by Ralph Baker or P&P Coal, the 

amount of lost wages due to Munsey, and the costs and expenses to be 

awarded. 

3463 80-12-5 

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I. 

Ralph Baker was general manager of Smitty Baker Coal Company and 

was responsible for the day-to-day operations of that company. The 

Court of Appeals affirmed the administrative law judge's conclusion that 

Baker violated section llO(b) of the 1969 Coal Act by refusing to rehire 

Glenn Munsey on April 29, 1971. 

The Smitty Baker Coal Company stopped mining operations in October, 

1971, due to a strike and did not resume operations after the strike was 

settled in late 1971. As of 1975, the Smitty Baker Coal Company still 

had active accounts. Ralph Baker now owns all the stock of Mason Coal 

Company, which began operations in May or June, 1972, in a different 

location from that of the Smitty Baker Coal Company. His testimony 

indicates that his authority at Mason Coal Company encompasses the 

hiring of employees. 

Section 110(b)(2) of the 1969 Coal Act requires a violator of 

section llO(b)(l) to "take such affirmative action to abate the violation 

as the [Commission] deems appropriate, including, but not limited to, 

the rehiring or reinstatement of the miner •.• to his former position 

with back pay." 30 U.S.C: §820(b)(2) (1976). Remedies in discrimination 

cases should be suited to the individual facts of each case and designed 

to eliminate the effects of illegal discrimination. International 

Brotherhood of Teamsters v. United States, 431 U.S. 324, 364 (1977); 

Southern Tours, Inc. v. NLRB, 401 F.2d 629 (5th Cir. 1968). As the 

Court of Appeals found, Ralph Baker illegally discriminated against 

Munsey. Therefore, we must afford such affirmative relief as will best 

restore Munsey to the position in which he would have been but for the 

illegal discrimination. We hold that on the facts of the case reinstatement by Ralph Baker at Mason Coal Company, with such seniority and 

benefits as Munsey would have had if the illegal discrimination had not 

occurred, is an appropriate remedy in order to fully compensate Munsey 

for the effects of the illegal discrimination he suffered. 

The record, however, raises a question as to whether Baker may have 

already made a suitable offer of reinstatement. Ba~cer testified in 

December, 1975, that he offered Munsey employment at Nason Coal Company 

"maybe a year ago, maybe not that long." In his testimony, Munsey 

mentioned neither an of fer of employment from Baker nor a request for a 

job at Mason Coal. No findings have been made on this issue. If a 

suitable offer was made and refused, then the need to offer reinstatement now is moot. Also, the making of a suitable offer would toll the 

accumulation of lost wages due to Munsey as the result of the violation. 

Thus, we remand for further proceedings the question of whether Baker 

has made a suitable offer to Munsey of employment at Mason Coal Company. 

3464 
II. 

In March, 1972, approximately five months after it had ceased 

operations, Smitty Baker Coal Company transferred some of its interests 

in coal leases to Clyde and Charlie James Poe. The transferred coal 

leases included Smitty Baker Coal Company's No. 2 mine, but did no.t 

include the No. 1 mine in which Munsey had worked. Rights to certain 

machines, some of which had been used in the. No. 1 mine, were transferred. The Poes subsequently renegotiated the lease with Peabody Coal 

Company, the owner of the leases both before and after these transfers •. 

The Pqes incorporated under the name P&P Coal Company and began mining 

in March 1972. Glenn Munsey, alleging P&P Coal to be a successor 

company to Smitty Baker Coal Company, moved to add P&P Coal as a 

respondent in 1975. That motion was granted by the administrative law 

judge. The administrative law judge found, however, .that P&P was not 

liable to Munsey as a successor. The Court of Appeals remanded this 

question to the Commission for consideration. 

The legislative history on section llO(b) of the 1969 Coal Act 

supports the conclusion that the protection afforded miners is similar 

to that in·existing provisions in other labor statutes. As Senator 

Kennedy stated: 

My proposed amendment, then, simply puts into the Coal Mine 

Health and Safety Act the same protection which we find 

in other legislation. 

115 Cong. Rec. 27948 (1969), reprinted in Senate Subcommittee on Labor, 

Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Legislative History of the Federal Coal Mine Health and Safety Act of 1969, 

Part I at 667 (1975). ~In certain circumstances, the protections of 

those other statutes have been construed to include the liabilit of 

bona ide pure asers an other successors for their edecessors' acts 

~ iscrimination. ~-, Golden State Bottling Co., Inc. v. NLRB, 414 

U.S. 168 (19/3); tr.s. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 

1968); International Technical Products, 249 NLRB ~o. 183, 104 LR&~ 1294 

(1980). We believe that in appropriate cases the successorship doctrine 

should also be applied under the 1969 Coal Act. 

The United States Court of Appeals for the Sixth Circuit has 

enumerated several factors to be considered in determining whether under 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) ~~· 

(1976), a new business entity is a successor employer: 

1) [W]hether the successor company had notice of the char~e, 2) the 

ability of the predecessor to provide relief, 3) whether there has 

been a substantial continuity of business operations, 4) whether 

the new employer uses the same plant, 5) whether he uses the same 

or substantially the same work force, 6) whether he uses the same or 

3463 
substantially the same supervisory personnel, 7) whether the same 

jobs exist under substantially the same working conditions, 

8) whether he uses the same machinery, equipment and methods of 

production and 9) whether he produces the same product. 

EEOC v. MacMillan Bloedel Containers, Inc. 503 F.2d 1086, 1094 (6th Cir. 

1974). We find that these factors provide a useful framework for 

resolving the question of successorship in the present case. 

~ first factor to be weighed is whetber the asserted successor> 

Coal Company, had_notice of the charge of discrimination and 

~si · · · a t e time o its acquisition o t e pre ecessor s 

.2_usiness operations. The administrative law judge found that the ovmers 

of P&P and represeuta~ives of Smitty Baker Coal Company did not discuss 

-Munsey's discrimination complaint during the negotiations on the 

transfer of the lease. The administrative lai; judge also found that one 

of the owners, Charlie James Poe, knew generally that there was a dispute, but did not know that it involved an alleged discriminatory discharge. The judge concluded, "P&P Coal acquired its interest in this 

company with no knowledge that applicant [sic] was liable to applicant 

for a discriminatory discharge." 

The administrative law judge erroneously relied on knowledge of 

liability, rather than notice of proceedings which could lead to 

liability, in reaching his conclusion that P&P Coal is not a successor 

to Smitty Baker Coal Company. See Slack v. Havens, 522 F.2d 1091 (9th 

Cir. 1975); U.S. Pipe and Found~Co. v. NLRB, supra. P&P admitted in 

its answer to Munsey's motion to add it asa-respondent "that it was 

aware of the litigation between the applicants and Smitty Baker Coal 

Company." Further, an administrative law jud?,e had issued a decision on 

February 29, 1972, in which he found Smitty Baker Coal Company liable to 

Munsey for reinstatement, back pay, and costs including attorney's fees. 

P&P had sufficient notice to enable it to protect itself by either an 

indemnification clause or a lower purchase price in the takeover agreement. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 185 (1973). 

P&P also presented evidence on the question of its successorship. P&P 

clearly had sufficient notice of the litigation between Munsey and 

Smitty Baker Coal Company to be held liable for back pay and reinstatement 

if other facts of this case show P&P to be a successor. 

abilit of t~e predecessor to provide relief is the second 

~ctar ta he cnnsidere . n , issued in 1976, the administrative law judge found that Smitty Baker Coal Company's accounts 

"remain active and there is still money in them." He did not make a 

finding regarding the amount of money in the accounts. Assuming that 

funds sufficient to cover the monetary award due to Munsey are in the 

accounts, the question of reinstatement for Munsey remains. Munsey will 

not be made whole. unless he also is offered "reinstatement ••• to his 

former position." 30 U.S.C. §820(b)(2). Smitty Baker Coal Company, the 

predecessor, no longer is active in minin~ operations and can not 

reinstate Munsey. Thus, in the present case the predecessor can not 

provide complete relief. 

3466 
~~~~~C_o_., 247 

relied heavily.on this factor in John Wilev & Sons, Inc. v. Livingston, 

376 U.S. 543, 551 (1964), in which it held that the disappearance of a 

corporation by merger did not necessarily terminate the rights of 

employees under a collective bargaining agreement, and that a successor 

could be compelled to arbitrate. 1/ The Court stated: 

Although Wiley [the alleged successor] was substantially 

larger than Interscience [the predecessor], relevant 

similarity and continuity of operation across the change 

in ownership is adequately evidenced by the wholesale 

transfer of Interscience employees to the Wiley plant, 

apparently without difficulty. 

376 U.S. at 551. This emphasis on the continuity of the workforce was 

reaffirmed in Howard Johnson Co. v. Hotel Employees, 417 U.S. 249 

(1974). The Court, distinguishing its decision in John Wiley & Sons, 

supra, noted that Howard Johnson Co., whom the Court found not to be a 

successor, selected and hired its own work force and employed very few 

of its predecessor's workers. 417 U.S. at 259-260. 

The administrative law judge found that "many" of the miners hired 

by P&P were not former Smitty Baker Coal Company employees; however, 

Charlie James Poe, president of P&P, testified that, needing experienced 

miners, he asked Ralph Baker if P&P could hire Baker's former employees. 

With Baker's agreement, P&P hired the Smitty Baker Coal Company employees according _to the Baker senority list without any screening. 

While the percentage of former Baker employees in the P&P workforce is 

unclear from Poe's testimony, it was at least 50 percent and possibly as 

high as 70 percent. ];./ P&P's testimony indicates that it would have 

hired Smitty Baker employees exclusively if they had been available. 

Thus, we find that the composition of the work force remained sub~ 

stantially the same. 

1./ Analysis of cases determining the bargaining obligations of successor employers does not differ significantly from that of cases 

concerning the obligation to remedy the effects of the predecessor's 

illegal discrimination. 

];_/ Poe testified: 

Approximately how many employees did you have there during the 

first month of operation? 

A. I believe we finally wound up with twenty-four I believe 

the first month and ten. 

Q. How about the second month? 

A. That was probably it for a while. I'm afraid to say 

unless I went back to the records. I believe fifteen of 

those men were taken directly from Mr. Baker's seniority 

list and two of them were his bookkeeper and Fred Coburn 

were company men which I retained. That made seventeen 

in all you see. I believe that's right. 

Transcript at 407-408. From this testimony, it is unclear whether Poe 

had 24 or 34 employees during the first month of operation. 

3467 
In determining whether there has been substantial continuity of the 

employing industry, the NLRB has considered additional factors including 

the existence of a hiatus between the closing of the business and the 

reopening by an alleged successor. Mondavi Foods Coro., 235 NLRB 1080, 

98 LRR...~ 1102 (1978); Radiant Fashions, Inc., 202 NLRB 938, 82 LR~! 1742 

(1973). In Radiant Fashions, the Board characterized a three month 

hiatus a's "lengthy", and viewed it to be a "significant" though not 

"controlling" factor in determining whether there had been a substantial 

continuity of business operations. In the present case, there was about 

a five month hiatus between the cessation of the active Smitty Baker 

operation and the opening of P&P Coal. At least the first month of this 

gap is attributable to a mine strike, and should not necessarily be 

counted as an interruption of business operations. 

The remaining factors discussed in MacMillan Bloedel concern the 

degree of identity between the former employer and the alleged successor. 

The first inquiry is whether the same plant is used. The specific mine 

in which Munsey worked was not operated by P&P. P&P reopened another 

mine operated by the Smitty Baker Coal Company, the No. 2 mine. P&P 

emphasizes that it did not work the mine where the controversy arose and 

that it leased approximately 3,500 acres from Peabody Coal Company 

whereas Smitty Baker Coal had only leased 300 acres. However, P&P first 

contracted to. take over Smitty Baker Coal's leases and later renegotiated 

the lease with Peabody Coal. er inquir is not whether P&P took 

over the actual locus of.the dispute, but whether it substan ia y 

. e Baker oa ompany s operations. P&P took ove 

Smitty Baker Coal Company's Peabody ease an one of its mines. 

P&P used equipment that it had purchased from Smitty Baker and that 

Smitty Baker had used in its operation.· We find that P&P Coal Company 

operated the substantial equivalent of the Smitty Baker Coal Company, 

"plant." See Mondavi Foods Corp., supra. 

Regarding the continuity of supervisory personnel, the record 

indicates that P&P hired a section foreman of Baker Coal who became 

P&P's mine superintendent. P&P also hired Smitty Baker's bookkeeper as 

its bookkeeper. Additional infornation as to the supervisory personnel 

of P&P is lacking in this record. 

Use of the Smitty Baker Coal Company senority list and retention of 

collective bargaining representatives indicate that the same jobs and 

working conditions probably continued. There is no evidence comparing 

production methods of the two companies. The same product, coal, was 

produced. 

We recognize that the resolution of any question concerning 

successorship involves "striking a balance between the conflicting 

legitimate interests of the bona fide successor, the public, and the 

affected employee." Golden State Bottling Co. v. NLRB, 414 U.S. at 181. 

After careful consideration of all the circumstances of this case, we 

conclude that the purposes of section llO(b) of the 1969 Coal Act are 

34€3 
Distribution 

J. Edward Ingram, Esq. 

Fowler & Robertson 

Seventh Floor 

First Tennessee Bank Building 

Knoxville, Tennessee 37902 

Stephen B. Jacobson 

Adams, Duque & Hazeltine 

523 West Sixth Street 

Los Angeles, CA 90014 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

Department of Labor 

4015 Wilson Boulevard 

Suite 400 

Arlington, VA 22203 

Joseph E. Wolfe, Esq. 

Earls, Wolfe & Farmer 

P. O. Box 196 

Norton, VA 24273 

Administrative Law Judge Forrest E. Stewart 

Office of the Administrative Law Judge 

5293 Leesburg Pike, 10th Floor 

Building 2 

Falls Church, VA 22041 

3471 

Glenn Munsey 

NORT 71-96 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

LOCAL ~ION 1957, UNITED MINE 

WORKERS OF AMERICA, 

David Biggs, et al. 

v. 

SOUTHERN OHIO COAL COMPANY 

December 9, 1980 

Docket No. VINC 77-112 

DECISION 

This discrimination case arises under the Federal Coal Mine Health 

and Safety Act of 1969' 30 U.S.C. §801 et~· (1976)(amended 1977). 

The issue is whether six miners 1/ were discriminated against by their 

employer, Southern Ohio Coal Company, in violation of section llO(b)(l) 

of that Act. ]:./ 

The administrative law judge found that a large body of water 

existed in the miners' route to their workplace in the entry at the end 

of a mantrip; that the miners believed the route was unsafe, complained 

to mine management about it, and refused to cross it ]./; and that their 

shift foreman denied them alternate work, which was available, because 

he believed they were not entitled to refuse to cross the water to work 

on their regular jobs. The judge ruled that there was no violation of 

the Act, since the evidence did not establish that these miners were 

denied alternate work by their employer because of the miners' safety 

complaints. !:_/ 

!_/ The miners' names are David Biggs, Thurmond Adkins, Ruler M. Champe, 

Curtis Chaney Jr., Donald A. Hunter, and Chester Young. 

];./ Section llO(b)(l) provides in part: 

No person shall discharge or in any other way discriminate against 

or cause to be discharged or discriminated against any miner or any 

authorized representative of miners by reason of the fact that such 

miner or representative (A) has notified the Secretary or his 

authorized representative of any alleged violation or danger ***· 

ll "The record is clear that Applicants' request for their safety 

committeeman arose out of genuine concern over a safety condition, and 

was not the outgrowth of some general labor dispute with management." 

J.D. 13. 

4/ The judge stated that "whether such actions were discriminatory 

depends on whether Respondent was motivat~d by a desire to retaliate 

against applicants for their reporting of safety complaints •••• " J.D. 

14. (emphasis added). 
We have difficulty at arriving at the conclusion reached by the 

judge in light of the evidence and the judge's own findings. The 

foreman's testimony is clear that the reason he denied the miners 

alternate work was because they had refused to cross the water to 

perform their regular jobs. 2_/ The judg~ found that this refusal by the 

miners was reasonable and in good faith. J.D. 7, 8, 11. 6/ The Union 

argues that the miners' actions in these circumstances were protected 

under section 110. We agree. Alternate work was available, was 

requested, and was denied because the miners refused to work in conditions they believed were unsafe. The miners' actions were protected 

by section 110 and the foreman's refusal to afford them alternative work 

violated that section. 

Accordingly, the decision of the administrative law judge is 

reversed and remanded to determine the amounts of back pay and any other 

relief owed to the miners. 

5/ J.D. 14-15, citing Tr. 819-820. 

""'§./ So too was the miners' refusal to take other routes, which they also 

believed were unsafe. Id. 

3473 
Distribution 

D. Michael Miller, Esq. 

Adele E. O'Conner, Esq. 

Alexander, Ebinger, Holschuh, Fisher & McAlister 

17 South High Street 

Columbus, Ohio 43215 

for Southern Ohio Coal Co. 

Abraham Pinsky, Esq. 

Pinsky, Barnes, Watson, Cuomo & Hinerman 

.800 Main Street 

Wellsburg, West Virginia 26070 

for UMWA 

Harrison Combs, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

Administrative Law Judge Michael A. Lasher 

Office of Administrative Law Judges 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

3474 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OR LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CO-OP MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 10, 1980 

Docket No. DENV 79-1-P 

DECISION 

On October 16, 1979, the administrative law judge issued a decision 

and order approving the proposed penalty settlement of the parties with 

respect to an alleged violation of 30 C.F.R. §70.250(b). ±./ The approval 

was based upon a stipulation of settlement prepared by the parties. The 

Secretary alleged that Co-op had failed to submit a respirable dust 

sample for one miner whom the Secretary identified by his social 

security number, 528-96-5108. 

The parties stipulated that Co-op's records indicated the company 

never employed a miner with that social security number. They al$o 

stipulated that Co-op did employ a miner with the social security number 

528-96-5109, and that the required dust sample had been submitted for 

that miner. These stipulated facts were quoted by the judge in his 

decision and order, which we directed for review sua sponte. 

We hold that under the circumstances in this case, the settlement 

should not have been approved. The parties' stipulation· shows that the 

alleged violation did not occur. The legislative history of the Federal 

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

1979), states, "The purpose of a civil penalty is to induce those 

officials responsible for the operation of a mine to comply with the Act 

and its standards." 1:../ To assure this purpose is served section llO(k) 

!/ 30 CFR §70.250(b) provides: 

One sample of respirable dust shall be taken from the mine 

atmosphere to which each individual miner assigned to a working 

section is exposed at least once every 120 days, except those 

miners already sampled during such 120-day period in sampling 

cycles conducted under the provisions of §§70.210, 70.220, and 

70.230 of this part. 

?J S. Rep. No. 95-181, 95th Cong., 1st Sess. 41 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th., Cong., 

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

Jf 1977, at 629 (1978). 

3475 80-12-12 
of the Mine Act places an affirmative duty upon us to oversee settlements.· Compliance with the Act and its standards is not fostered by 

payment of a civil penalty where the stipuiated facts establish that no 

violation occurred. Accordingly, the notice of violation is vacated, 

the order approving the settlement and ordering payment is reversed, and 

the proceeding is dismissed. 

Marian Pearlman Nease, Commissioner 

3476 
Distribution 

James Abrams, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

15019 Federal Office Building 

Denver, Colorado 80202 

Carl E. Kingston, Esq. 

53 West Ailgelo Avenue 

Salt Lake City, Utah 84115 

Thomas Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22204 

Honorable George A. Koutras 

Office of Administrative Law Judges 

5203 Leesburg Pike, 10th Fleer 

Falls Church, Virginia 22041 

3477 
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, O.C. 20006 

December 19, 1980 

Docket No. HOPE 78-722-P 

ALLIED CHEMICAL CORPORATION 

DECISION 

This civil penalty proceeding arises under section llO(a) of the 

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

(Supp. IH 1979) ("the Mine Act"). 1./ In his decision, the administrative law judge concluded that Allied Chemical Corporation (Allied) had 

not violated 30 CFR §75.1404 as alleged by the Secretary of Labor, and 

dismissed the Secretary's petition for assessment of civil penalty. For 

the reasons below, we remand to the judge for further proceedings. 

Certain facts are undisputed. On September 8, 1977, while hauling 

loaded mine cars in Allied's Shannon underground mine, the trolley harp 

assembly supplying electrical power to the locomotive became disengaged. 

The motorman was unable to control or stop the locomotive, which subsequently derailed. Both the brakeman and the motorman jumped from the 

moving locomotive before the derailment. The brakeman was killed and 

the motorman was injured. 

A withdrawal order was issued to Allied on September 9, 1977, 

alleging a violation of the mandatory standard at 30 CFR §75.1404. The 

order stated: 

):_/ The inspector issued the withdrawal order at issue on September 9, 

1977, pursuant to section 104(a) of the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. §801 et~· (1976) ("the Coal Act"). The 

Secretary filed his petition for assessment of civil penalty on August 29, 

1.978, after the effective date of the Mine Act. Thus, while the violation 

occurred under the Coal Act, these proceedings arise under the Mine Act. 

3478 80-12-15 
The pneumatic braking system on the ••• locomotive ••• was not 

sufficient to control a trip of 28 loaded mine cars which were 

involved in a run-a-way trip. The brake shoes were not properly 

aligned with the trucks [locomotive wheels] and could not ap~ly 

uniform frictional pressure on the braking surface •••• 

Allied contested the order and a hearing was held before the 

administrative law judge. In his decision the judge concluded that the 

locomotive in question had a dual braking system "installed." 'l:/ He 

further concluded that the Secretary had not proven that the locomotive 

was being operated outsi~e its design capabilities, or had been operated 

at excessive speed. The Secretary filed a petition for discretionary 

review, which we granted in part. 3/ The issue before us on review is 

whether the judge correctly interpreted and applied 30 CFR §75.1404. 

The standard at issue provides: 

§75.1404 Automatic brakes; speed reduction gear. 

[Statutory Provisions] 

Each locomotive and haulage car used in an 

underground coal mine shall be equipped with 

automatic brakes, where space permits. Where 

space does not permit automatic brakes, locomotives and haulage cars shall be subject to 

speed reduction gear, or other similar devices 

approved by the Secretary, which are designed 

to stop the locomotives and haulage cars with 

the proper margin pf safety. 

§75.1404-1 Braking system. 

A locomotive equipped with a dual braking 

system will be deemed to satisfy the requirements of §75.1404 for a train comprised of such 

locomotive and haulage cars, provided the locomotive is operated within the limits of its 

design capabilities and at speeds consistent 

with the conditions of the haulage road •••• 

J:./ The parties agree that a dual braking system consists of a dynamic 

or electric brake system and a pneumatic or service brake system. 

11 In his petition for discretionary review, the Secretary also 

assigned as error the judge's conclusion that he had not established by· 

~preponderance of the evidence an adverse effect on the locomotive's 

braking capacity caused by misaligned brake shoes. However, under the 

authority of section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. §823 

(d)(2)(A)(i), we declined to direct that issue for review. 

3479 
Allied argued before the judge, and argues before us, that to 

comply with the cited standard a locomotive merely has to have a dual 

braking system installed, and that the standard is not directed at the 

operability of the system. In Allied's words, the standard establishes 

"design" criteria and does not impose "maintenance" requirements. In 

our view the judge's resolution of this issue is ambiguous. At the 

conclusion of his decision, the judge appears to accept Allied's interpretation, but in other portions of his decision he apparently considered the operability of the braking system. To resolve any doubts, 

we hold that 30 R §75.1404-1 requires that a dual brakin system be 

oth present and operable. us, a violation of the standard can be 

establis e y ving that a locomotive is not equipped with an operable dual braking system. The standard can also be violated if the 

locomotive is operated beyond its design capabilities or at speeds 

inconsistent with haulage road conditions. 

We believe that any other result would be contrary to the remedial 

intent of the Coal Act, the Hine Act, and this standard, as well as 

connnon sense. 30 CFR §75.1404 restates section 314(e) of the Coal Act. 

30 CFR §75.1404-1 merely establishes a permissible alternative to the 

automatic brakes required by the statutory provision. Section 314(e) in 

turn reiterates section 214(e) of S. 2917, the Senate version of the 

Coal Act, and is quite similar to the House version. The Senate Report 

stated: "This provision will reduce, substantially, the number of 

haulage collisions that are responsible for many accidents." 4/ The 

House Report stated that section 314(e) "requires automatic brakes, 

speed reduction devices, or other safeguards ..• to be certain that the 

equipment can be stopped promptly." 2/ Where Congress indicated in such 

unequivocal terms that its objective was to stop equipment promptly in 

order to prevent accidents, it could not have intended merely that 

locomotives be equipped with dual braking systems, and have been indifferent to whether the brakes were operable. If brakes are to stop a 

locomotive promptly, it is axiomatic that, once installed, they must be 

operable. 

We turn now to the question of whether the judge properly applied 

the standard in this case. The judge found that "the failure of the 

locomotive brakes to function was due to the unexpected loss of power 

caused by the loss of the trolley harp assembly, which in fact resulted 

in the unanticipated loss of braking air pressure due to the loss of 

electrical power." The judge found "no indication that the •.. operator 

!±_/ S. Rep. 91-411, 9lst Cong., 1st Sess. at .82 (1969); reprinted in 

Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 

94th Cong., 1st Sess., Legislative History of the Federal Coal Mine 

Health and Safety Act of 1969, Part I at 208 (1975) ["Legis. Hist."]. 

~/ H. Rep. 91-563 at 55; Legis. Hist. at 1085. 

3480 
experienced any difficulties in negotiating the grades traveled on the 

very day of the accident ••. or that he experienced any difficulty in 

braking and controlling the locomotive .•. ," but that his difficulties 

began when the loss of power "incapacitat[ed] all of the locomotive 

br:ake systems." 

The Secretary submits that the judge's finding, that the brakes 

failed because of a loss of electrical power, is contrary to the evidence. He submits that of the three possible causes of the locomotive's 

brake failure, the judge considered only two: operator error and loss of 

power. In attributing the brake failure to the latter, he did not 

consider the third possible cause, systemic failure. The Secretary 

bases his assertion on the apparent failure of both portions of the 

pneumatic brake after the loss of the harp assembly. He contends that 

notwithstanding the loss of electricity, a single application of the 

primary pneumatic component should not have exhausted the air supply; 

the pneumatic brake should have stopped the locomotive. Even if the 

primary pneumatic component failed, "the loss of electrical power cannot 

rationally explain the failure of the truck emergency component to stop 

the locomotive •.•. " He emphasizes that the truck emergency brake does 

not rely on electricity and is innnune to air demands of other equipment. 

Therefore, the only logical explanation for its failure to stop the 

locomotive after the primary pneumatic brake failed to do so, is that it 

was defective. The Secretary contends that "[s]ubsequent testing confirmed that the truck emergency [brake] was defective," because the 

brakes failed in three surface tests conducted on level ground. Citing 

the testimony of Allied's expert witness, the Secretary submits further 

that because the truck emergency brake is an integral part of the 

pneumatic system, any defect in it meant that the pneumatic system was 

defective. Therefore, in the Secretary's view, the locomotive was not 

equipped with an operable dual braking system as 30 CFR §75.1404-1 

requires. 

In sum, the Secretary contends that the judge's analysis is flawed 

because the loss of electricity does not adequately explain the failure 

of the dual braking system. In the Secretary's view.the primary 

pneumatic brake should have had sufficient air, even without electricity, 

to stop the locomotive on nearly level ground. Once the primary pneumatic 

brake failed, he believes that an operable truck emergency brake, as 

part of the dual braking system, with its independent air supply, should 

have stopped the locomotive. 

Allied contends that it was in compliance with 30 CFR §75.1404: "A 

dual braking system was present and the locomotive was operated within 

design capabilities and at speeds consistent with the haulage road 

conditions." Allied rejects the Secretary's argument that the truck 

emergency brake is a part of the pneumatic system, was inoperative and 

therefore that the pneumatic braking system was deficient. Allied cites 

the testimony of its expert witness that the truck emergency brake is 

independent of the dual braking system. It comμares the technical 

expertise of that expert witness to the "speculative opinion testimony" 

of the allegedly untrained MSHA inspector, urging the correctness of the 

judge's reliance on the former. 

3481 
Allied asserts further that the Secretary introduced no evidence to 

demonstrate that the truck emergency brake was inoperable. It argues 

that the surface tests to which the Secretary refers involved bleeding 

off pressure in the main reservoirs, not in the truck emergency brake. 

Allied submits that this demonstrated nothing about the truck emergency 

brake, which would have required 24 hours to replenish its air supply. 

In conclusion, Allied asserts that the Secretary failed to demonstrate 

that the truck emergency brake was part of the pneumatic system or that 

it was inoperable. Allied submits that the judge considered the truck 

emergency brake and all other possible causes of brake failure, and that 

the judge properly determined that the loss of electrical power was the 

sole cause of the failure. 

30 CFR §75.1404-1 permits a locomotive to be equipped with a dual 

braking system as an acceptable alternative to the automatic brakes 

mandated by 30 CFR §75.1404. Neither the regulation nor the legislative 

history of section 314(e) of the 1969 Act (which §75.1404 restates) 

defines a dual braking system. The parties appear to agree that a dual 

braking system consists of a dynamic braking system and a pneumatic 

braking system. They also agree generally as to the operation of at 

least the primary pneumatic brake. They disagree, however, on what 

constitutes the pneumatic braking system, and whether the truck 

emergency brake is part of the pneumatic braking system. They disagree 

further as to whether the truck emergency brake was operable. The 

ensuing controversy colors the entire case. 

Although the judge found that "the locomotive had a dual braking 

system installed •.. ,"he did not explicitly determine what constituted 

the pneumatic portion of the dual braking system. We believe that the 

judge should have made explicit findings as to whether the truck 

emergency brake and its air supply were part of the pneumatic braking 

system. The failure to determine whether the truck emergency brake was 

part of or independent of the pneumatic braking system leaves unanswered 

the major factual issue in this case, whether the dual braking system 

was operable. If the truck emergency brake were found to be part of the 

pneumatic system, questions remain as to whether it was operable in 

these circumstances and could have supplied air to the brake cylinders 

after the main air supply was depleted. We also believe that the loss 

of the harp assembly does not explain the total breakdown of the dual 

braking system. The loss of the harp assembly should have caused the 

complete failure of only the electrically-powered dynamic brake. The 

other component of that dual braking system, the pneumatic braking 

system, is not fully dependent upon electricity. Electricity powers the 

compressor to maintain adequate air supply. If operable, it should have 

continued to function at least until the air supply in its tanks was 

exhausted; the loss of electricity would merely have prevented the 

replenishing of that air supply. 

3482 

' j 
Therefore, we remand to the judge for further proceedings. 

Specifically, we remand for a finding as to whether the dual braking 

system was operable. In order to make this ultimate finding, findings 

are also necessary on why the primary pneumatic brake failed to stop 

the train after the electricity was interrupted; whether the truck 

emergency brake is part of the pneumatic portion of the dual braking 

system; and, if so, why it failed to stop the train. 

A. E. Laws{l/Commissioner 

\ ~ \\ 11, ·1 I '71 j 1 \i .- · ' f\, • .'I\ 1 .1\ \ '' '>\ ~ r '"'\\'i~J,i . .J).. ,,., \ 1~\)ll.,(,l \'0.:!~ 

Marian Pearlman Nease, Commissioner 

3483 
Distribution 

William B. Moran, Esq. 

Trial Attdrney 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Lee. F. Feinberg, Esq. 

William T. Brotherton, III, Esq. 

Spilman, Thomas, Battle & Klostermeyer 

1101 Kannwha Banking & Trust Bldg. 

Charleston, West Virginia 25301 

Administrative Law Judge George A. Koutras 

Office of Administrative Law Judges 

Allied Chemical Co. 

HOPE 78-722-P 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Building 2 

Falls Church, Virginia 22041 

3484 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 

Petitioner 

r 1seo 

Civil Penalt~ Proceeding 

Docket Ne. VA 80-2-M 

Assessment Control 

No. 44-02965-05005F 

A. H. SMITH STONE COMPANY, 

Respondent 

Louisa Quarry and Mill 

DECISION 

Appearc~ ..... es: Barbara Krause Kaufmann, Attorney,. Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

A.H. Smith, Jr., and Wheeler B. Green III, Branchville, 

Haryland, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued August 28, 1980, a hearing in 

the above-entitled proceeding was held on October 21, 1980, in Falls Church, 

Virginia, under section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence, I 

rendered the bench decision J::./ which is reproduced below (Tr. 101-114): 

This proceeding involves a Petition for Assessment of 

Civil Penalty filed in Docket No. VA 80-2-M on November 8, 

1979, by the Secretary of Labor, seeking to have a civil 

penalty assessed for an alleged violation of 30 C.F.R. 

§ 56.11-1. 

The issues in a civil penalty case are whether a violation occurred and, if so, what civil penalty should be 

Y A petition seeking review of my bench decision was filed with the 

Commission by respondent on November 21, 1980. Since I had not yet issued 

my decision in final form, the official file was still in my office. Therefore, the petition was routed to me so that it could be placed in the official file. 

3486 
assessed based on the six criteria set forth in section 

llO(i) of the Federal Mine Safety and Health Act of 1977. 

I shall make some findings of fact on which my decision will be based. I shall set them forth in enumerated 

paragraphs. 

1. A. H. Smith Stone Company, according to a stipulation ·of the parties, had 163,693 man-hours in 1979. The 

company operates the facility which is involved in this 

proceeding, namely, the Louisa Quarry and Mill which is 

located in Louisa County, Virginia. The man-hours worked 

at that particular facility in 1979 were 47,586. 

The parties have stipulated that the company is subject to the provisions of the Act. 

2. On January 25, 1979, Mr. James H. Whalen, the 

operator of the crusher at the Louisa Quarry and Mill was 

found head first in the primary crusher, resulting in his 

death before he could be extricated from the crusher. 

On January 26, 1979, the day after the fatality 

occurred, several people made an investigation of the 

accident. The only person representing MSHA during 

that inspection who testified here today was Inspector 

Charles W. Quinn. He stated after he had examined the 

feeder at the site where Mr. Whalen was killed, that he 

had concluded that there was not a safe means of access 

to and from the feeder. 

For that reason, he wrote Citation No. 301536, dated 

January 26, 1979, alleging a violation of section 5·6.11-1, 

which provides that a "[s]afe means of access shall be provided and maintained to all working places." 

3. There were a number of photographs introduced into 

evidence in this proceeding. They are essential for an 

understanding of the area where the victim was killed and 

also of the physical layout of the facility where Inspector 

Quinn felt a violation of section 56.11-1 had occurred. 

Some of these exhibits were introduced by Inspector 

Quinn and some by the' company. All the photographs have 

been very helpful in showing the situation which existed. 

Exhibit No. 4-A shows how a person who is 5'8" tall would 

have to proceed and how he would have to move his body in 

order to get out of the feeder in the vicinity of the 

control booth from which the crusher is operated. 

3487 
4. Exhibit No. 4-D is a very close-up picture of the 

exact area where a person would have to stand if he wanted 

to get out of the feeder. That picture indicates that an 

individual leaving the feeder would have to stand on what 

is known as a "grizzley," which consists of 4-inch wide 

metal strips with an opening between them of about 

6 inches. 

Although the witnesses, or at least Mr. Christopher, who 

was a witness for the respondent, indicated that the grizzley 

is 5 feet long, a person coming out of the control booth, or 

going into it from the feeder, is considerably closer to the 

terminal end of the grizzley on the side of the crusher than 

,5 feet, according to Exhibit No. 4-D. 

5. Exhibit No. A-6 shows a good view of the grizzley at 

the site where a person would be if he wanted to go out at 

the control booth and it is especially obvious that a person 

stepping up from the feeder would be steppin~ up, from an 

insecure footing, a distance of 2 feet. 

6. Exhibit No. A-10 is a close-up view of the feeder 

and control booth after.a handrail was installed near the 

control booth and after a step was made toward the top of 

the feeder. Those improvements were made in order for the 

company to abate the violation alleged in Citation No. 301536. 

7. Ms. Kaufmann correctly stated in her remarks that no 

one knows for sure what caused Mr. Whalen to fall into the 

crusher, but we do have the testimony of Mr. Christopher who 

was the person who last talked to Mr. Whale·n before his death. 

Exhibit No. A-4 shows the end of the feeder farthest from the 

control booth and, according t·o Mr. Christopher's testimony, 

Mr. Whalen, the victim, was standing in the feeder about 

3:50 p.m. when Mr. Christopher last talked to him. That was 

on January 25, 1979. At that time, Mr. Christopher told 

Mr. Whalen an explosive charge would be set off in the quarry 

and that Mr. Whalen should shut off the crusher and could 

leave for the day after he had finished cleaning the feeder 

which was almost entirely free of residue at that time. 

8. When Mr. Christopher had returned to the area of the 

feeder after obtaining the detonating equipment for setting 

off the blast, he realized that Mr. Whalen was not in sight 

at any of the places where he normally saw him at that time 

of day. Consequently, he made a search for Mr. Whalen and 

eventually found his body in the crusher with his head foremost into the crusher and his legs sticking out the top. At 

that time, Mr. Whalen was already dead. 

3488 
9. When Mr. Christopher talked to Mr. Whalen at 

3:50 p.m., the feeder was not operating but the crusher was. 

At 3:50 p.m., the feeder still had rock in it which needed 

to be transported by the feeder into the crusher. When 

Mr. Christopher returned around 4:00 or 4:05 p.m. to the 

vicinity of the feeder, the material in the feeder had been 

discharged into the crusher, but the crusher was still 

running. 

10. The inspection report written by MSHA's investigators was received into evidence as Exhibit F. That report 

indicates on page three that Mr. Whalen was an epileptic and 

that he was normally taking phenobarbitol to counteract his 

illness and an analysis of his blood showed a rather high 

concentration of aprobarbital. 

Despite the fact that Mr. Whalen had been under a 

doctor's treatment for his problem, Mr. Christopher worked 

with him for approximately 8 years without noticing that 

Mr. Whalen had any problems in the form of dizziness or 

slurred speech or any indication he had an abnormal condition _of any kind. Mr. Christopher did not observe any 

unusual physical attributes about Mr. Whalen at 3:50 p.m. 

on January 25, 1979, when Mr. Christopher last talked to 

Mr. Whalen before his death. 

I believe that generally summarizes the facts in this 

case. 

As I have indicated in the findings, the feeder was not 

equipped with any type of step or handrailing to assist a 

person who had been working in the feeder to get out of the 

feeder once he had finished that work. 

The testimony indicates that it was "the practice, 

especially in the wintertime, to clean out the feeder during 

every shift because the materials in the wintertime had a 

tendency to cling around the top of the feeder. 

While there is no doubt in my mind that a person with 

secure footing could step up a distance of 2 feet, or 

2-1/2 feet if you include the angle into the control booth 

that was discussed by Inspector Quinn, the fact remains that 

anyone getting out of the feeder has to do so by standing on 

top of the grizzley and, as I have indicated in my findings, 

his footing would not be very stable. 

It is undoubtedly true that Mr. Whalen had been down in 

that feeder and had cleaned in it for many years because he 

worked for the company from February 4, 1970, until his death 

3489 
on January 25, 1979. Nevertheless, the evidence shows that 

without any handhold or anything to assist a person who was 

stepping up out of the feeder, there was certainly a hazard 

involved in not having any facilities whatever to assist a 

person coming out of the feeder. Therefore, I find that a 

violation of section 56.11-1 occurred because a safe means 

of access into and out of the feeder had not been provided. 

Having found that a violation occurred, it is necessary 

for me to assess a penalty based on the six criteria. 

The first criterion is the size of respondent's business. 

As to that matter, I have indicated in paragraph one .of my 

findings that the company had total man-hours of operation 

of 163,693. That places the company in a moderate range of 

size. Therefore, any civil penalty to be assessed in this 

case will be or should be in a moderate range of magnitude, 

insofar as the size of respondent's business is considered 

as one of the criteria. 

There was introduced with respect to the criterion of 

history of previous violations Exhibit No. 5. That exhibit 

shows that there have been two previous violations of section 56.11-1 by the company. It has always been my practice 

to increase a penalty otherwise assessable under the other 

five criteria by a specific amount if I find existence of 

an unfavorable history of previous violations. Exhibit No. 5 

shows that two previous violations occurred sometime between 

January 27, 1977, and January 26, 1979. I find that two violations in that length of time should be considered as somewhat unfavorable and therefore whatever penalty is assessed 

in this case will be increased by $50 under the criterion of 

history of previous violations. 

As to the criterion of the operator's ability to continue in business, there was no testimony given on that subject. The former Board of Mine Operations Appeals held in 

Buffalo Mining Company, 2 IBMA 226 (1973), and in Associated 

Drilling, Inc., 3 IBMA 164 (1974), that if a company puts on 

no evidence showing its financial condition, that a judge may 

presume payment of penalties would not cause it to discontinue 

in business. Therefore, I find that payment of penalties 

will not cause A. H. Smith Stone Company to discontinue in 

business. 

The next criterion to be considered is the question of 

whether the operator demonstrated a good faith effort to 

achieve rapid compliance after the citation was written. 

The inspector terminated the citation on January 30, 1979. 

3490 
The citation was written on January 26, 1979. He has indicated that he felt the company showed a normal good faith 

effort to achieve rapid compliance. I find that the evidence supports that conclusion. When I find that a company 

has made a normal good faith effort to achieve compliance, 

I neither increase nor decrease a penalty otherwise assessable under the other criteria. 

'Ille remaining two criteria, that is, gravity and negligence, are the ones that affect the penalty the most 

severely. The first consideration is the degree of negligence involved in this particular violation. I think in 

connection with that criterion, it is worthwhile to note 

that the inspector had made a previous examination of the 

crusher at the Louisa Mill and had not noticed this particular hazard. I can understand why an inspector would 

not see everything that might be hazardous around the 

crusher on his first inspection. The inspector did indicate that he had been in this part of the facility and it 

did not occur to him at that time that this was a particularly hazardous area and he did not write a citation for 

a violation of section 56.11-1 at that time. 

Nevertheless, when one does examine the area of the 

feeder from the standpoint of the photographs which I have 

discussed in my findings, one reaches the inescapable conclusion that the operator was at least guilty of a normal 

amount of negligence in not having put any kind of provisions 

here for a person to grab when he is trying to get in or out 

of the feeder, particularly since Mr. Christopher has indicated the feeder has to be cleaned out rather constantly 

during cold weather. Therefore, I find that there is a 

moderate amount of negligence involved in this case. 

The final criterion I have to consider is the question 

of gravity. Gravity gets back to the question of whether 

the failure to provide a safe means of egress, specifically 

a step and a handhold for getting up out of the feeder, was 

the direct cause of the person's death in this instance. In 

a general situation, the question would be how serious a fall 

from the side of this feeder would normally be. The diff icul ty with making that finding in this case is associated 

with the fact that there was no eyewitness who saw Mr. Whalen 

fall, if he did fall, and there is no one who can say for 

certain that the medication he was taking had no bearing upon 

the fact that he was found in the crusher. 

The inspector and Mr. Christopher have been unable to 

explain satisfactorily why a person, assuming he did slip in 

trying to get out of the feeder, would not only have fallen 

3491 
backwards but also would have further slid into the opening 

to the crusher. There was a distance of at least a couple 

of feet from the place where he would have fallen to the 

point where he would have started down into the crusher. 

Another part of the problem in assessing gravity in this 

instance gets to the fact that when Mr. Christopher was talking to Mr. Whalen at 3:50 p.m., the feeder was not running. 

When Mr. Christopher next came back to the feeder, it still 

was not running but all the material that had been thrown 

down by Mr. Whalen onto the feeder had been transported by 

the feeder into the crusher and the feeder was empty of any 

material. 

The foregoing facts support a conclusion to the effect 

that Mr. Whalen at least successfully got out of the feeder 

and turned it on in order to eliminate the materials that 

were in it. Inspector Quinn's belief that Mr. Whalen 

slipped while trying to get out of the feeder and fell backwards and rolled into the crusher, is really not supported 

by the facts because, once Mr. Whalen got out of the feeder 

and turned it on, there is no reason that we know of, based 

on the facts in this case, that he would have gotten back 

down into the feeder •. We simply do not have any evidence 

to show for certain that failure to have a step and a handhold. for a person to come out of the feeder was the direct 

cause of Mr. Whalen's death in this case. 

Since we do not have any way to show the exact cause of 

death, and the inspector's accident report, Exhibit F, so 

indicates on page three, I can only find on the evidence in 

this case that the violation was moderately serious and would 

not normally be.expected to result in a person's death. 

There is one aspect of the evidence which does make this 

feeder and its lack of facilities to help a person get out of 

it serious, and that is, up until this accident occurred, 

Mr. Whalen was cleaning out the edges of the feeder while 

keeping the crusher in operation. That practice meant if 

anyone should fall into the crusher while cleaning out the 

feeder, his death was more likely than if the crusher had not 

been operating. 

According to Mr. Christopher, after the accident, the 

company has discontinued that practice and now turns of~ both 

the feeder and the crusher at the time that a person is down 

in the feeder cleaning it out. 

At the time this particular accident occurred, the 

company was engaging in a kind of operation which was less 

safety-oriented than it is now. 

3492 

__ / 
The lack of· a means of egress, a safe means of egress 

on January 25, 1979, was more serious than it would be today 

when neither the crusher nor the feeder is operating, but on 

January 25, 1979, the crusher was operating even though the 

feeder was not. 

For that reason, I find that the evidence supports a 

conclusion that the violation was moderately serious. 

In summary, since we have a company which operates a 

medium-sized business, and since we have a good faith effort 

to achieve compliance and a moderate amount of negligence and 

a moderate amount of gravity, I believe a penalty of $400 

should be assessed, to which there should be added $50 under 

the criterion of history of previous violations, so that the 

total penalty in this case should be $450. 

WHEREFORE, it is ordered: 

Within 30 days from the date of this decision, A. H. Smith Stone Company 

shall pay a penalty of $450.00 for the violation of section 56.11-1 charged 

in Citation No. 301536 dated January 26, 1979. 

Distribution: 

~~C.<;$~ Richard C. Steffey7 

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) 

A.H. Smith Stone Company, Attention: A.H. Smith,"Jr., and 

Wheeler B. Green III, Branchville, MD 20740 (Certified Mail) 

3493 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLf AX AVENUE 

DENVER, COLORAOO 80204 

DEC 2 1980 

GEX COLORADO, INCORPORATED, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) NOTICE OF CONTEST 

) 

) DOCKET NO. WEST 80-327-R 

) Citation No. 0786929 

) 

) 

) Roadside Mine 

) 

) 

) 

~~~~~~~~~~~~~~~~> 

DECISION 

Appearances: 

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

1100 United Bank Center, Denver, Colorado 80290 

for Contestant, 

Robert J. Lesnick, E~q., Office of Tedrick A. Housh, Jr., 

Regional Solicitor, United States Department of Labor 

Room 2106, 911 Walnut Street, Kansas City, Missouri 64106 

for Respondent 

Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor, 

United States Department of Labor, 

/ 

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

for Respondent 

Before: Judge John J •. Morris 

STATEMENT OF THE CASE 

Contestant, GEX Colorado, Incorporated, (GEX), seeks damages, expenses, 

and costs against the Secretary of Labor. It alleges that it suffered such 

damage as a result of the improper issuance of Citation No. 786929 by a 

mine safety inspector of the Federal Mine Safety and Health Administration 

(MSHA). The citation was originally issued under the authority of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, !E_~· 

PROCEDURAL BACKGROUND 

At a hearing on May 20, 1980 in Grand Junction, Colorado in a 

case 1 involving the above parties, the representative of GEX presented 

a copy of its notice of contest of MSHA citation No. 786929. 

1/ GEX Colorado Incorporated, Contestant, vs. Secretary of Labor, Mine 

Safety and Health Administration (MSHA), Respondent, Docket No. 

WEST 80-306-R, decision issued June 9, 1980. 

3494 l 

·• i 

f 

J 
The parties indicated the citation had been withdrawn before the 

hearing. (Tr. 7-8). The Commission file was subsequently assigned to the 

trial judge. 

In reply to a Commission order on May 29, 1980, GEX indicated its 

intention to seek the additional relief as prayed in its notice of contest 

although the citation had been vacated. 

GEX's additional relief seeks: general damages according to 

proof; punitiv~ and exemplary compensation; costs of maintaining 

the action; incidental expenses according to proof; other and 

further relief as the Commission deems proper. 

GEX expressly states that any and all compensation awarded to it will be 

used to offset any future valid assessed penalties. 

Subsequent to the events of May 20, 1980, the Commission Judge stated 

he would rule on the issue of whether the GEX notice of contest, in its 

present posture, states a claim upon which relief can be granted. If 

affirmative, the case would be set for an evidentiary hearing. If negative 

the notice of contest would be dismissed. (Order, July 11, 1980). 

The parties filed briefs in support of their respective positions. 

The Secretary contends that the Federal Mine Safety and Health Review 

Commission does not have jurisdiction to consider the merits of GEX's claim 

because the citation was withdrawn by MSHA prior to the time that GEX filed 

its notice of contest. Additionally, MSHA a~serts that the doctrine of 

sovereign immunity bars recovery on GEX's claim. The Secretary also has 

moved to dismiss the case on the ground that GEX has failed to state a 

claim upon which relief can be granted. 

ISSUE 

In a notice of contest under Section lOS(d) of the Federal Mine Safety 

and Health Act, contestant seeks damages against the Secretary of Labor. 

Prior to the filing of the notice of contest the Secretary withdrew his 

citation against contestant. The issue is whether the Review Commission 

has jurisdiction to consider the contest. 

FINDINGS OF FACT 

The facts as shown by the file and admissions are as follows: 

1. A federal mine inspector issued Citation 786929 to GEX on 

April 29, 1980. 

3495 
2. The citation charged GEX with violating 30 CFR 75. 1704 2 by 

failing to provide substantial fire doors in the main intake portal. The 

inspector gave GEX an extension until May 19, 1980 to abate the condition. 

3. On May 15, 1980, after incurring some abatement expense, GEX was 

advised by the inspector that MSHA had wiihdrawn the citation as '~eing 

written in error" (Tr. 6, notice of contest.) 

4. The notice of contest was lodged with the Review Conunission on May 

23, 1980. 

DISCUSSION 

For the reasons hereafter stated the notice of contest is dismissed 

with prejudice. 

The legal matters over which the Conunission has jurisdiction are 

·limited to those set forth in the Federal Mine Safety and Health Review 

Act, 30 U.S.C. 801 et seq. A mine operator is afforded an opportunity 

for a hearing on its-Contest of a citation, a withdrawal order, the length 

of an abatement period, or the penalty assessed by the Secretary,30 U.S.C. 

815(d). There are additional opportunities for a hearing that are not 

relevant here but there is no provision in the Act for a suit against the 

Secretary of Labor for damages sustained as a result of the improper 

issuance of a citation. A contest of a citation involves a dispute as to 

the validity of the citation. It cannot be construed so as to provide for 

a hearing on a claim for consequential damages suffered by the operator. 

GEX contends that the grant of authority in 30 U.S.C. 815(d) giving 

the Commission the power to order "other appropriate relief", is to be 

interpreted to allow consideration of GEX's claims for a set off. I 

disagree. This provision refers to the authority of the Commission to 

provide relief to the parties who have brought before the Conunission 

matters within its jurisdiction. Since the citation which gave rise to the 

claimed damages had been withdrawn prior to the time GEX filed its notice 

of contest there is no substantive matter in the notice that is cognizable 

by the Commission. 

2/ § 75.1704 Escapeways. [Statutory Provisions]. 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 

surface 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 

representative, 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. 

3496 
GEX also cites North American Coal Corp., 3 IBMA 93 (1974) as support 

for its theory that it is entitled to an award of damages and to set off 

such claim against any future penalties. North American is distinguishable 

from the present case. There the Interior Board of Mine Operations Appeals 

ruled that the loss in production incurred as a result of a vacated 

withdrawal order could be considered as a mitigating factor in the 

assessment of the penalty for the violation which was the subject of the 

withdrawal order. The loss was to be considered in the same manner as the 

other statutory criteria required to be evaluated in the calculation of a 

penalty. It was within the discretion of the judge to determine how much, 

if any, the penalty should be reduced because of the economic loss. 

The Board did not rule that damages could be assessed against the 

United States and set off against any future civil penalties. The 

reduction in the fine was allowed because the economic loss plus the 

reduced penalty was believed by the Board to be a sufficient deterrent 

against future infractions. The ruling was limited to instances where the 

condition which gave rise to the improper withdrawal order and subsequent 

loss in production is the same condition for which the civil penalty is 

assessed. Cf. Climax Molybdenum Company v. Secretary of Labor et al 

DENV 79-102-M, October 1980. 

In the present case, there is no penalty assessment at issue. The 

ultimate remedy requested by GEX, if granted, would allow them to violate 

the Act with impunity until any money damages were satisfied. This would 

contravene the intention of Congress in providing for the assessment of a 

penalty. 

The intent of Congress on this point appears in the legislative 

history. 

To be successful in the objective of including effective 

and meaningful compliance, a penalty' should be of an amount 

which is sufficient to make it more economical for an op~rator 

to comply with the Act's requirements than it is to pay the 

penalties assessed and continue to operate while not in compliance. 

Senate Report No. 95-181, 95th Cong., 1st Sess. ·41 (1977). 

For the reasons stated, I have determined that the Review Commission 

does not have jurisdiction to consider contestant's claim for damages. 

Accordingly, it is not necessary to consider the Secretary of Labor's 

arguments based on sovereign immunity.3 

CONCLUSIONS OF LAW 

The Commission lacks jurisdiction to consider this case because the 

citation was withdrawn before the notice of contest was filed. A procedure 

awarding damages in such a situation would be inconsis"tent with the Act. 

For these reasons I find that Contestant has failed to state a claim upon 

which relief can be granted. 

!/ For a companion case discussing the doctrine of soverign immunity see 

GEX Colorado vs. Secretary of Labor, WEST 80-328-R. 

3497 
ORDER 

Based on the foregoing facts and conclusions of law I enter the 

following order: 

The notice of contest is dismissed with prejudice. 

Law Judge 

Distribution: 

Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr. 

Regional Solicitor, United States Department of Labor 

Room 2106, 911 Walnut Street, Kansas City, Missouri 64106 

Ann M. Noble, Esq., Office of .Henry Mahlman, Regional Solicitor 

U. S. Department of Labor, 

1585 Federal BuildinR, 1961 Stout Street, Denver, Colorado 80294 

Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown, Attorneys at Law 

1100 United Bank Center, Denver, Colorado 80290 

3498 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

GEX COLORADO, INC., 

Respondent. 

APPEARANCES: 

DEC 2 1980 

CIVIL PENALTY ACTION 

DOCKET NO. WEST 79-28-M 

ASSESSMENT CONTROL NO. 

05-00281-03012 

ROADS IDE MINE 

Ann M. Noble, Esq., Office of Henry C. Mahlman, Associate Regional 

Solicitor, United States Department of Labor, Denver, Colorado 

for the Petitioner, 

Curt Neumann, Assistant Safety Director, appearing pro se, Grand 

Junction, Colorado 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

In this civil penalty proceedings Petitioner, the Secretary of Labor, 

on behalf of the Mine Safety and Health Administration (MSHA), charges that 

respondent, GEX Colorado, Inc. (GEX), violated regulations promulgated under 

the authority of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 ~seq. 

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

Colorado on May 20, 1980. 

The parties waived their right to file post trial briefs. 

ISSUES 

The issues are whether GEX violated the standards. 

3499 
CITATION 24246S 

This citation alleges a violation of 30 C.F.R. 7S.302-4(a) 1 

The facts are ·uncontroverted. 

1. MSHA Inspector Walter Blanc used a smoke tube test to determine the 

flow of the air current in the GEX mine (Tr. S, 6, 10). 

2. Air from the working face in the mine was being recirculated into 

the ai~ intake entry and thus the air was again travelling to the working 

face (Tr. 4-S) .. 

3. The recirculating air from the auxilliary fan was blowing under a 

line curtain instead of following the return air course (Tr. S, 8, PS). 

DISCUSSION 

GEX contends the situation cited by the inspector was merely turbulent 

air which did not create a hazard. In addition, GEX asserts that MSHA 

failed in its burden of proof because the inspector did not follow the air 

to the working face (Tr. 90). 

GEX's arguments lack merit. The inspector's testimony clearly 

establishes that a recirculation of air occurred. The regulation prohibits 

such a recirculation "at any time". The regulation in its present form 

presumes the existence of a hazard. 

Concerning the second argument, it is not necessary for the MSHA 

inspector to follow the air to the working face. The movement of the 

recirculated air into the intake air entry is sufficient to establish the 

violation of 30 C.F.R. 7S.302-4(a). Once it has entered the intake air 

corridor, the air can only be drawn to the working face (Exhibit PS). The 

citation should be affirmed. 

In view of the statutory criteria 2, I consider the proposed civil 

penalty of $114.00 to be appropriate. 

1/ § 7S.302-4 Auxiliary fans and tubing. 

(a) The fan shall be of a permissible type, maintained in 

permissible condition, so located and operated to avoid any recirculation of air at any time, and inspected frequently by a 

certified person when in use. 

2/ 30 USC 820(i) 

3500 
CITATION 24246 7 

This citation alleges a violation of 30 C.F.R. 75.403. 

The parties by stipulation prop~se an amendment of the civil penalty 

and respondent agrees to withdraw its notice of contest. 

An analysis of the supporting documentation indicates that the proposed 

settlement is warranted in view of the statutory criteria, 30 USC 820(i). 

Accordingly this citation and the proposed civil penalty, as amended, in the 

amount of $75.00 should be affirmed. 

CITATION 242662 

3 This citation alleges a violation of 30 C.F.R. 75.316 • 

The facts are conflicting and I find the following facts to be 

credible. 

1. MSHA Inspector Matthew Biondich, using his anemometer, was unable 

to measure the air velocity in the mine (Tr. 33-38). 

2. The stoppings in the mine were leaking "pretty bad" (Tr. 35). 

3. Three smoke readings indicated an air velocity of 7025 cfm (cubic 

feet per minute). (Tr. 39-40). 

4. After the stoppings were repaired, the velocity increased to 20,475 

cfm (Tr. 44). 

5. According to GEX's ventilation plan, 16,000 cfm should be 

maintained (Exhibit P-3). 

Respondent's two fold argument is that the decrease in air velocity was 

due to necessary ventilation changes when moving from one side of the belt 

line to the other. Further, respondent asserts it cannot be expected to 

maintain air velocity in the last open cross cut. 

3/ § 75.316 Ventilation system and methane and dust control plan. 

[STATUTORY PROVISIONS] 

A ventilation ·system and methane and dust control plan and 

revisions thereof suitable to the conditions and the m1°ning system 

of the coal mine and approved by the Secretary shall be adopted 

by the operator and set out in printed form on or before June 28, 

1970. The plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the mine, such 

additional or improved equipment as the Secretary may require, the 

quantity and velocity of air reaching each working face, and such 

other information as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least every 6 months. 

3501 

r:- ', ! •, 

r:.., 

r I i ~ I ' \_j 

\._ 

~.-.) 
I reject respondent's arguments. While a conflict exists as to the 

amount of the air velocity in this section of the mine, I find this to be 

basically a matter of expert testimony. Respondent conceded the expertise 

of the MSHA inspectors (Tr. 32-33). 

Respondent's defenses cannot prevail since its ventilation plan 

requires air velocity at all places in excess of the 7025 cfm measured by 

the inspector. 

This citation should be affirmed and in view of the statutory 

criteria 4 , I consider the proposed civil penalty of $180.00 to be 

appropriate. 

ORDER 

Based on the foregoing findings of fact, conclusions of law, and 

stipulation I hereby enter the following order: 

1. Citation 242465 and the proposed civil penalty of $114.00 are 

affirmed. 

2. Citation 242467 and the proposed civil penalty, as amended, in the 

amount of $75.00 are affirmed. 

3. Citation 242662 and the proposed civil penalty of $180.00 are 

affirmed. 

Distribution: 

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

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 

Mr. Curt Neumann, Acting Safety Director, GEX Colorado, Inc., P. 0. 

Box W, Palisade, CO 81526 

4/ 30 USC 820(i) 

3502 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

GEX COLORADO, INCORPORATED, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) NOTICE OF CONTEST 

) 

) DOCKET NO. WEST 80-328-R 

) Citation No. 0786890 

) 

) 

) Roadside Mine 

) 

) 

) 

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

DECISION 

Appearances: 

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

1100 United Bank Center, Denver, Colorado 80290 

for Contestant, 

Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr., 

Regional Solicitor, United States Department of Labor 

Room 2106, 911 Walnut Street, Kansas City, Missouri 64106 

for Respondent 

DEC 2 

Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor, 

United States Department of Labor, 

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

for Respondent 

Before: Judge John J. Morris 

STATEMENT OF THE CASE 

Contestant, GEX Colorado, Incorporated, (GEX), seeks damages, expenses, 

and costs against the Secretary of Labor. It alleges that it suffered such 

damage as a result of the improper issuance of Citation No. 786890 by a 

mine safety inspector of the Federal Mine Safety and Health Administration 

(MSHA). The citation was originally issued under the authority of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, !!_seq. 

PROCEDURAL BACKGROUND 

At a hearing on May 20, 1980 in Grand Junction, Colorado in a 

case 1 involving the above parties, the representative of GEX presented 

a copy of its notice of contest of MSHA citation No. 786890. 

1/ GEX Colorado Incorporated, Contestant, vs. Secretary of Labor, Mine 

Safety and Health Administration (MSHA), Respondent, Docket No. 

WEST 80-306-R, decision issued June 9, 1980. 

3503 

19!>. 
Counsel for the Secretary of Labor moved to withdraw the citation, 

(Tr. 7). The trial judge indicated he did not have the Commission file 

but he would grant the motion to vacate (Tr. 10). The file was 

subsequently assigned to the trial judge. 

In reply to a Commission order on May 29, 1980, GEX indicated its 

intention to seek the additional relief as prayed in its notice of contest 

although the citation had been vacated. 

GEX's additional relief seeks: general damages according to 

proof; punitive and exemplary compensation; costs of maintaining 

the action; incidental expenses according to proof; other and 

further relief as the Commission deems proper. 

GEX expressly states that any and all compensation awarded to it will be 

used to offset any future valid assessed penalties. 

Subsequent to the events of May 20, 1980, the Commission Judge stated 

he would rule on the issue of whether the GEX notice of contest, in its 

present posture, states a claim upon which relief can be granted. If 

affirmative, the case would be set for an evidentiary hearing. If negative 

the notice of contest ~ould be dismissed. (Order, July 11, 1980). 

The parties filed briefs in support of their respective positions •. 

The Secretary contends that the doctrine of .sovereign immunity bars 

recovery on GEX's claim. He also has moved for the dismissal of the case 

on the ground that GEX has failed to state a claim upon which relief can be 

granted. 

ISSUE 

The issue raised is whether contestant, GEX, can seek damages against 

the Secretary of Labor for an allegedly improper issuance of a citation. 

FINDINGS OF FACT 

The facts as shown by the file and admissions are as follows: 

1. A federal mine inspector issued Citation 786890 to GEX on 

May 15, 1980. 

3504 
2. The citation charged GEX with violating 30 CFR 75.503 2 by 

failing to properly maintain its roof bolting machine. Specifically, 

flat washers were used between the face of the lock washers and the cover 

lid bolts on the main controller compartment. (Citation, Notice of 

Contest, , 4). 

3. The GEX notice of contest was presented 3 to the Review 

Commission Judge during a hearing on an unrelated case involving the same 

parties. 

4. 

786890. 

At the above hearing the Secretary moved to vacate Citation 

The motion to vacate was granted (Tr. 7, 10). 

DISCUSSION 

For the reasons hereafter stated the notice of contest is dismissed 

with prejudice. 

The Secretary is correct in his view that the doctrine of sovereign 

immunity bars GEX's claim. There are a myriad of cases ~olding that the 

United States "is immune from suit save as it consents to be sued . • 

and the terms of its consent to be sued in any court define the court's 

jurisdiction to entertain the suit." United States v. Testan 424 U.S. 392 

(1976). Contestant is not entitled to money damages without a waiver of 

sovereign immunity, and the Federal Mine Safety and Health Act of 1977 

contains no such waiver. 

A mine operator is provided relief from improper actions of the 

Secretary through the vacation or modifi~ation of a citation, penalty, 

order .of withdrawal, or abatement period. Administrative and judicial 

review of any action of the Secretary is allowed but the remedies available 

do not include monetary or exemplary damages. 

2/ § 75.503 Permissible electric face equipment; maintenance. [Statutory 

Provisions] 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. 

3/ No party questions the propriety of the service of the notice of 

contest under these circumstances, and that issue is not addressed 

in this decision. 

3505 
GEX contends that the grant of authority in 30 U.S.C. 815(d), giving 

the Commission the power to order "other appropriate relief", is to be 

broadly interpreted to allow consideration of GEX's claims for a set off. 

I disagree. The consent to be sued must .be "unequivocally" expressed in 

the statute. Testan, supra. "Other appropriate relief" cannot be. 

interpreted as an express waiver of sovereign immunity. 

GEX also cites North American Coal Corp., 3 IBMA 93 (1974) as support 

for its theory that it is entitled to an award of damages which would be 

set off against any future penalties. North American is distinguishable 

from the present case. There the Interior Board of Mine Operations Appeals 

ruled that the loss in production incurred as a result of a vacated 

withdrawal order could be considered as a mitigating £.actor in the 

assessment of the penalty for the violation which was the subject of the 

withdrawal order. The loss was to be considered in the same manner as the 

other statutory criteria required to be evaluated in the calculation of a 

penalty. It was within the discretion of the judge to determine how much, 

if any, the penalty should be reduced because of the economic loss. 

The Board did not rule that damages could be assessed against the 

United States and set off against any future civil penalties. The 

reduction in the fine was allowed because the economic loss plus the 

reduced penalty was believed by the Board to be a sufficient deterrent 

against future infractions. The ruling was limited to instances where the 

condition which gave rise to the improper withdrawal order and subsequent 

loss in production is the same condition for which the civil penalty is 

assessed. Cf. Climax Molybdenum Company v. Secretary of Labor et al 

DENV 79-102-M, October 1980. 

In the present case, there is no penalty assessment at issue. The 

ultimate set off remedy requested by GEX, if granted, would allow them to 

violate the Act with impunity until any money damages were satisfied. This 

would contravene the intention of Congress in providing for the assessment 

of a penalty. 

The intent of Congress on this point appears in the legislative 

history. 

To be successful in the objective of including effective 

and meaningful compliance, a penalty should be of an amount 

which is sufficient to make it more economical for an operator 

to comply with the Act's requirements than it is to pay the 

penalties assessed and continue to operate while not in compliance. 

Senate Report No. 95-181, 95th Cong., 1st Sess. 41 (1977). 

CONCLUSIONS OF LAW 

The Commission lacks jurisdiction to consider a claim for damages 

against the Secretary of Labor since the Federal Mine Safety and Heaith Act 

of 1977 does not waive the sovereign immunity of the United States. 

A procedure awarding damages for a future set off in such a situation would 

be inconsistent with the Act. For these reasons I find that contestant has 

failed to state a claim upon which relief can be granted. 

3506 
ORDER 

Based on the foregoing facts and conclusions of law I enter the 

following order: 

The notice of contest is dismissed with prejudice. 

Judge 

Distribution: 

Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr. 

Regional Solicitor, United States De~artment of Labor 

Room 2106, 911 Walnut Street, Kansas City, Missouri 64106 

Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor 

U. S. Department of Labor, 

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

Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown, Attorneys at Law 

1100 United Bank Center, Denver, Colorado 80290 

3507 
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. 

CAROLINA STALITE COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/l? /12 

DEC 2 1980 

Civil Penalty Proceedings 

Docket No. BARB 79-319-P 

A.O. No. 31-00136-05006R 

Docket No. SE 79-56-M 

A.O. No. 31-00136-05007 

Docket No. SE 79-91-M 

A.O. No. 31-00136-05001 

Docket No. SE 79-92-M 

A.O. No. 31-00136-05003 

Docket No. SE 79-93-M 

A.O. No. 31-00136-05004 

Docket No. SE 79-94-M 

A.O. No. 31-00136-05002 

Docket No. SE 79-95-M 

A.O. No. 31-00136-05005 

Docket No. SE 79-85-M 

A.O. No. 31-00136-05008 

Docket No. SE 79-87-M 

A.O. No. 31-00136-05009 

Docket No. SE 79-114-M 

A.O. No. 31-00136-05010~ 

Docket No. SE 80-35-M 

A.O. No. 31-00136-05012 

Docket No. SE 80-37-M 

A.O. No. 31-00136-05013 

Docket No. SE 80-44-M 

A.O. No. 31-00136-05014 

Stalite Mill 

3508 
DECISION AND ORDER 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

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

the petitioner; 

William C. Kluttz, Jr., Esq., Salisbury, North Carolina, 

for the respondent. 

Before: Judge Kennedy 

These 13 penalty cases involve 133 charges of violations of the 

Mine Act and the mandatory safety standards for sand, gravel and crushed 

stone operations set forth in 30 C.F.R. Part 56. In all these cases, 

the operator filed an answer· in which it (1) generally denied liability, 

(2) specifically denied subject matter jurisdiction, (3) moved to suppress 

evidence, (4) challenged the standards for vagueness, and (5) claimed 

the charges were the result of arbitrary and capricious action. 

On November 28, 1979, respondent filed a motion for summary 

decision and to dismiss based on its jurisdictional and constitutional 

"challenges. After briefing and oral argument, the motion was denied 

by Decision and Order of April 14, 1980, a copy of which is attached 

hereto and incorporated herein. 

Thereafter, in the interest of a just, speedy and inexpensive 

disposition, the parties stipulated to waive an evidentiary hearing 

and agreed to submit all of the violations for decision on the record 

of their written submissions, leaving to the judgment, expertise and 

discretion of the trial judge the resolution of factual conflicts 

and the determination of the amount of the penalties warranted. 

5 U.S.C. § 556(d); 30 U.S.C. §§ llO(i), (k), 113(d). The stipulation 

originally proposed that in addition to deciding the merits the trial 

judge would rule on the void for vagueness claim without briefing or 

argument. When the trial judge declined to accept this provision, 

respondent withdrew this challenge. The stipulation as filed on 

August 11, 1980 and amended on October 30, 1980, the trial judge finds 

is acceptable. 

The claim that the charges are arbitrary and capricious is without 

merit. The evidence shows that most of the violations did, in fact, 

occur. Furthermore, the undisputed evidence as to the conditions observed 

by the inspector established probable cause to believe that at the time 

of issuance of the citations and orders the violations charged existed. 

There is no evidence that the enforcement action taken was so selective 

as to establish an abuse of discretion or so grossly erroneous as to 

imply bad faith. Accordingly, the defense of arbitrary and capricious 

action is denied. 

3509 
The record for decision in these cases consists of the citations 

and orders, the inspector's statements and contemporaneous notes, the 

operator's statements in defense or in mitigation of the gravity and 

negligence (Exhibit "B" to the stipulation as amended), photographs 

submitted by respondent, sketches submitted by petitioner, and the 

parties' prehearing submissions. 

After a careful review of the record and based on an independent 

evaluation and de novo review of the circumstances of each violation, 

I find, that except as noted below, the conditions and practices observed 

and set forth in the citations and orders were violations of the mandatory 

safety !'ltandards cited. Appendix "A" attached hereto and made a part 

·hereof, supplemented where appropriate with the additional discussion 

contained in Appendix "B" hereto, contains my determinations with respect 

to gravity, negligence, and, based on my consideration of the other 

criteria applicable to the assessment of penalties, findings as to the 

amount of the penalties warranted for each violation found. For the 

reasons advanced by the operator, and after careful consideration of 

the record considered as a whole, including the physical circumstances 

shown in the photographs and sketches, I find the violations indicated 

in Appendix "A" as "vacated" are deficient as a matter of fact and law, 

and that these violations did not, in fact, occur. 

The total amount of the penalties found warranted for the 103 

violations found is $14,542.00. Accordingly, it is ORDERED that on or 

before Monday, December 29, 1980, the operator pay the amount of the 

penalties assessed, $14,542.00, and that sub' t to payment the captioned 

matters be, and hereby are, DISMISSED. 

Attachments 

Distribution: 

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

280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

William C. Kluttz, Jr., Esq., Kluttz and Hamlin, 507 West Innes Street, 

P.O. Drawer 1617, Salisbury, North Carolina 28144 (Certified Mail) 

3510 
Docket No. 

~~ft~ 79-319 

5f 

79-56 

79-91 

*See .. Appendix B 

Citation/Order No. 

104393 

105187 

105190 

105191 

105192 

105193 

105195 

105196 

105567 

105568 

105569 

105570 

105572 

. 105573 

105574 

105575 

105576 

105577 

104395 

104397 

104398 

104399 

104650 

APPENDIX A 

Standard 

§103(a) 

56.14-6 

56.14-1 

56.9-2 

56.9-2 

56.14-6 

56.11-12 

56.14-1 

56.4-33 

56.4-4 

56.12-20 

56.12-30 

56.14-6 

56.14-6 

56.14-6 

56.11-2 

56.14-6 

56.11-2 

56.16-5 

56.14-8(b) 

56.12-8 

56.12-32 

56.15-5 

Gravity Neglig

*Serious Intent

Low Risk No Neg

Vacated - protected 

by location 

High Risk High d

High Risk High d

Vacated - protected 

by location 

Moderate Risk Ordina

Moderate Risk Ordina

High Risk Ordina

High Risk Ordina

Vacated - area dry, 

no shock hazard 

existed 

Low Risk Ordina

Vacated - protected 

by location 

Vacated - protected 

by location, machinery 

not in operation 

Vacated - protected by 

location, machinery not 

in operation 

Low Risk Ordina

Low Risk Ordina

Low Risk Ordina

High Risk Ordina

Moderate Risk Ordina

Low Risk Ordina

Low Risk Ordina

High Risk High d
• 

APPENDIX A 

Docket No. Citation/Order No. Standard Gravity Negligence 

79-91 (cont.) 1046Sl S6.9-3 Extremely Serious Gross 

(imminent danger) 

104687 S6.9-3 Extremely Serious Gross 

(imminent danger) ..... 

79-92 104618 S6.14-l Vacated - protected 

by barrier and location 

104619 S6.14-l Vacated - protected 

by barrier and location 

104620 S6.14-l Vacated - per MSHA Management 

Letter No. 80-61 

104628 S6.14-l Low Risk No negligence 

104629 S6.14-l Low Risk No negligence 

104630 S6.9-7 Low Risk Ordinary 

104631 S6.14-l Vacated - protected 

by location 

104632 S6. ll-13 Low Risk No negligence 

104633 S6.14-2 Low Risk No negligence 

104634 S6.14-l Vacated - protected 

by location 

104635 S6.14-l Non-serious No negligence 

104637 S6.14-l Vacated - protected 

by location 

104638 56.14:-1 Low Risk Ordinary 

104639 S6.14-l Low Risk Ordinary 

104640 S6.14-l Vacated - protected 

by location 

104641 S6.14-l Vacated - protected 

by location 

104642 56.14-1 High Risk Ordinary 

104643 S6.14-l Vacated - per MSHA 

Management Letter 

No. 80-61 

104644 S6.14-l Low Risk Ordinary 

104645 56.11-2 Low Risk Ordinary 
APPENDIX A 

Docket No. Citation/Order No. Standard Gravity Neglige

79-93 104646 56.14-1 Vacated - protected 

by barricade and 

location 

104647 56.14-1 Low Risk No neg

104648 56.14-1 Low Risk No neg

104649 56.11-12 High Risk Ordinar

1046e-l 56.14-1 Vacated 

- protected 

by location 

104662 56.11-2 Low Risk Ordinar

104663 56.14-1 Low Risk Ordinar

104664 56.14-1 Low Risk Ordinar

104665 56.14-1 Low Risk Ordinar

104666 56.14-1 Vacated 

- protected 

by location 

104667 56.14-1 Low Risk No neg

104668 56.14-2 Low Risk Ordinar

104669 56.14-1 Low Risk No neg

104670 56.14-1 Low Risk Ordinar

104671 50.20-1 No Risk No fau

104672 50.30(a) No Risk No fau

104652 56.14-1 Low Risk Ordinar

104653 56.14-1 Low Risk Ordinar

104654 56.14-1 Low Risk Ordinar

104655 56.9-7 Low Risk Ordinar

79-94 104394 56.4-2 Low Risk Ordinar

104396 56.4-24(c) Vacated 

- extinguisher 

not discharged 

104400 56.11-13 Low Risk Ordinar

104601 56.14-1 Low Risk Ordinar

104602 56.9-7 Low Risk Ordinar

104603 56.9-7 Low Risk Ordinar

104604 56.12-8 Low Risk No neg

104605 56.11-1 Low Risk Ordinar

104606 56.14-1 Vacated 

- protected 

by barricade and 

location 
APPENDIX A 

Docket No. Citation/Order No. Standard Gravity Negligenc

104607 56.14-1 Vacated 

- protected 

by barricade and 

location 

104608 56.14-1 Low Risk Ordinary 

104609 56.14-1 Vacated - per MSHA 

Management Letter 

No. 80-61 

104610 56.14-1 Vacated 

- protected 

by location 

104611 56.9-22 High Risk No neglig

104612 56.14-1 Vacated - per MSHA 

Management Letter 

No. 80-61 

104613 56.11-2 Serious Ordinary 

104614 56.14-1 Vacated - protected 

by location 

104615 56.11-2 Low Risk Ordinary 

104616 56.14-1 Vacated - protected 

104617 56.9-7 

by location 

Low Risk Ordinary 

79-95 104656 56.14-1 Low Risk Ordinary 

104657 56.14-1 Low Risk Ordinary 

104658 56.14-1 Low Risk Ordinary 

104659 56.14-1 Low Risk No neglig

104660 56.14-1 Low Risk Ordinary 

104673 56.9-7 Low Risk Ordinary 

104674 56.9-7 Low Risk Ordinary 

104675 56.14-6 Moderate Risk Ordinary 

104676 56.14-1 Low Risk Ordinary 

104677 56.11-12 High Risk Ordinary 

104678 56.14-1 Low Risk No Neglig

104679 56.12-32 Moderate Risk Ordinary 

. ~· -~· .... --· .; , .. , .. "· -~. .. ' '•. ·"• ,.., .. ·~· u.~.··~.•,... ~~•,.·•·'·II.•~•' 
APPENDIX A 

Docket No. Citation/Order No. Standard Gravity Neglig

104680 56.14-1 Low Risk No neg

104681 56.11-1 Low Risk Ordina

104682 56.14-1 Vacated - protected 

by location 

104683 56.14-1 Vacated - protected 

by location 

104684 56.14-2 Low Risk Ordina

104685 56. 9-11 Low Risk Ordina

79-85 105188 56.11-2 Moderate Risk Ordina

105189 56.11-2 Moderate Risk Ordina

105194 56.11-2 Moderate Risk Ordina

105198(a) 56.15-5 Extremely Serious Gross 

(imminent danger) 

105198(b) 56.12-16 Extremely Serious Ordina

(imminent danger) 

105565 56.15-4 Vacated - condition 

did not occur, men 

wearing safety glasses 

105571 56.14-1 Vacated - protected 

by location 

105197 56.11-1 High Risk Ordina

79-87 105566 56.14-45 Very High Risk High d

79-114 104453 56.15-5 *Extremely serious Gross 

(imminent danger) 

80-35 104510 56.9-73 Low Risk No neg

105556 56.14-1 High Risk Ordina

105557 56.11-2 Low Risk Ordina

105558 56.14-1 Low Risk Ordina

*See Appendix B 
APPENDIX A 

Docket No. Citation/Order No. Standard Gravity Negligence 

80-35 (cont.) 1055559 56.14-1 Low Risk Ordinary 

105560 56.14-1 Low Risk Ordinary 

80-37 104511 56.14-1 Low Risk Ordinary 

104512 56.11-12 High Risk Ordinary 

105552 56.9-88 Low Risk Ordinary 

105553 56.14-1 High Risk Ordinary 

105554 56.14-1 High Risk Ordinary 

105555 56.14-1 Low Risk Ordinary 

104514 56.11-1 Low Risk Ordinary 

104515 56.11-12 Low Risk No negligence 

104516 56.11-2 Low Ris.k Ordinary 

80-44 104513 56.9-6 Low Risk Ordinary 

104517 56.14-1 Low Risk Ordinary 

104520 56.18-10 Low Risk Ordinary 

106621 56.9-6 High Risk Ordinary 

105522 56.17-1 High Risk Ordinary 

TOTAL PENALTIES 
~~----------------·-;i 

APPENDIX B 

BARB 79-319-P 

Citation No. 104393: The undisputed facts with regard to this 

violation are set forth in the attached decision and order of April 14, 1980. 

As discussed therein, section 103(a) of the Act provides a right of 

entry upon mine property for the purpose of conducting inspections for 

health and safety hazards. The operator contends, however, that a denial 

of entry is not a violation of the Act for which a civil penalty may be 

assessed~ I disagree. - Section llO(a) of the Act states that any operator 

who violates "a mandatory health or safety standard or who violates 

any other provision of this Act, shall be assessed a civil penalty ••• " 

Since section 103{a) provides the Secretary with a right of entry upon 

mine property, it also of necessity creates a duty on the part of the 

operator not to interfere with the exercise of that right. Interference 

with the right of entry by the operator is, therefore, a violation of 

section 103(a), and a civil penalty for that violation must be assessed. 

Accord, Waukesha Lime & Stone Co., 1 FMSHRC 512, 518 (June 5, 1979); 

Baker Coal Co., 2 FMSHRC 2626 (September 16, 1980). 

With regard to the amount of the penalty warranted for the violation 

found, I note that the operator denied the inspector access to the mine 

knowing full well that the inspector was authorized to enter by the Act. 

I further note that the mine property had been inspected on numerous 

occasions pursuant to the warrantless inspection provisions of the Metal 

and Nonmetallic Mine Safety Act of 1966, and the operator was therefore 

familiar with the federal inspection authority. This was a serious 

violation in that it significantly lengthened the employees' exposure 

to dangerous conditions. Accordingly, and after considering the other 

statutory criteria, I conclude that a civil penalty in the amount of 

$500 is warranted for this violation. 

SE 79-114-M 

Imminent Danger Closure Order No. 104453: Thirty minutes after 

the operator's foreman had been warned against allowing workmen to work 

in high places without safety belts and lines, he was observed watching an 

employee standing twenty feet above the ground on a four-inch angle 

iron brace working on a chute from the silo to the Nordberg crusher. 

Because of the imminent hazard to life and limb, the inspector issued 

a section 107(a) imminent danger closure order. 

No excuse for the foreman's disregard for safety was offered. 

Furthermore, there is no evidence that any disciplinary or other corrective 

action was taken by the operator with respect to either the foreman or 

the perpetrator of the violation. This indifference to the foreman's 

reckless participation in the violation reflects a lack of commitment 

to voluntary compliance by the operator and its supervisory management. 

3517 

:. 

; ( l . •.':_.; 

l

, ' , 

.J ' ' 

: 

L 

-j ---- -- .__ 
Appendix B Page 2 

I find, therefore, that (1) the violation of 30 C.F.R. 56.15-5 

charged did, in fact, occur, (2) the violation was extremely serious 

in that it exposed_ the miner involved to a potentially fatal fall onto 

structures below, and (3) the violation was the result of reckless 

indifference to safe operating practices. Accordingly, and after considering 

the other statutory criteria, I conclude that a civil penalty in the 

amount of $1500 is warranted for this violation. 

3518 

1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) i56-6210!11 /12 

APR 1 4 1980 

Petitioner 

Civil Penalty Proceedings 

Docket No. BARB 79-319-P 

A.O. No. 31-00136-05006R 

CAROLINA STALITE COMPANY, 

Respondent 

Docket No. SE 79-56-M 

A.O. No. 31-00136-05007 

Docket No. SE 79-91-M 

A.O. No. 31-00136-05001 

Docket No. SE 79-92-M 

A.O. No. 31-00136-05003 

Docket No. SE 79-93-M 

A.O. No. 31-00136-05004 

Docket No. SE 79-94-M 

A.O. No. 31-00136-05002 

Docket No. SE 79-95-M 

A.O. No. 31-00136-05005 

Docket No. SE 79-85-M 

A.O. No. 31-00136-05008 

Docket No. SE 79~87-M 

A.O. No. 31-00136-05009 

Docket No. SE 79-114-M 

A.O. No. 31-00136-05010 

Docket No. SE 80-35-M 

A.O. No. 31-00136-05012 

Docket No. SE 80-37-M 

A.O. No. 31-00136-05013 

Docket No. SE 80-44-M 

A.O. No. 31-00136-05014 

r 

Stalite Mill 

3519 






















































circuit box for the overhead crane in the shop." Mandatory safety standard 

30 C.F.R. § 56.12-37, provides as follows: "Fuse tongs or hotline tools 

shall be used when fuses are removed or replaced in high-potential circuits." 

The term "high potential" as used in section 56.12-37, is defined by section 

56.1, as "more than 650 volts." 

The citation was subsequently amended by Inspector Pappas on November 17, 

1980, to reflect a correction in the citation to the mandatory standard which 

Mr. Pappas intended to cite, namely section 56.12-36, which provides as 

follows: "Fuses shall not be removed or replaced by hand in an energized 

circuit, and they shall not otherwise be removed or replaced in an energized 

circuit unless equipment and techniques especially designed to prevent electrical shock are provided and used for such purpose." 

At the hearing, the respondent conceded that it ·was aware of the modified 

citation, that it was served with a copy of same, and was not prejudiced in 

•its ability to present a defense to the alleged violation of section 56.12-36, 

as reflected in the modified citation (Tr. 4-5). 

Petitioner's Testimony and Evidence 

MSHA inspector Michael J. Pappas confirmed that he conducted an inspection at the mine site in question on June 21, 1978, and while in the garage 

area one of the mechanics, a Mr. Feasal, brought to his attention a problem 

that he was having concerning the rails on the overhead crane. Before climbing up to the crane area, Mr. Feasal deenergized it by walking to the fuse 

box which supplied power to the crane, opening the box, and reaching in with 

his hand and pulling out one of the fuses. Mr. Pappas expressed concern over 

this act on the part of Mr. Feasal because the floor was wet and he did not 

use any fuse tongs to remove the fuse. After showing him the problem with 

the crane rails, Mr. Feasal replaced the fuse in the box by hand and turned 

the switch back on (Tr. 18-22). 

Mr. Pappas stated that simply because the handle to the fuse box is 

turned or pulled down, this does not insure that the box is totally deenergized. Mr. Feasal removed the fuse so quickly, and it was done before he 

realized what had happened, and since he was standing on a wet floor and did 

not check to insure that the fuse knives were down, Mr. Pappas was concerned 

about a shock hazard and believed that a violation occurred. He also indicated that unless the main power switch is disconnected, part of the fuse 

box is still energized even though the door is open, and he determined that 

the main power switch had not been turned off because the garage lights were 

on and other electical power was being used. He determined that fuse tongs 

were not used to remove the fuses, and he did so by asking the safety foreman and superintendent who informed him that fuse tongs were not used but 

that they would obtain them (Tr. 23-24). 

On cross-examination, Mr. Pappas stated that when Mr. Feasal removed the 

first fuse he advised him that he should not do so, but that Mr. Feasal proceeded to remove the remaining two fuses by hand after he had warned him not 

3574 
to. Mr. Pappas confirmed that the floor was wet and he could not recall 

observing a rubber mat under the fuse box (Tr. 24-28). He also confirmed 

that he modified the citation after learning that the fuse box was less than 

600 volts, and when he returned to the mine at a later time to look at the 

box in the company of a mine electrical inspector, he recalled that he stated 

that the back of the box was not deenergized (Tr. 28-29). 

In response to further questions, Mr. Pappas indicated that abatement 

was achieved with the purchase of fuse tongs by the respondent, and he could 

not recall if the use or nonuse of such fuse tongs at the mine site.was discussed with any of his fellow inspectors. He did recall that respondent 

advised him that tongs were never used, he observed none in use at the mine, 

and could not recall discussing the matter with any mine personnel (Tr. 34-

35). 

When called in rebuttal, Mr. Pappas stated that when he questioned 

Mr. Feasal about the procedure he normally used to deenergize the box in the · 

event he had to perform mechanical work on the crane, Mr. Feasal told him 

that he never used fuse tongs and that he and another mechanic always removed 

them by hand (Tr. 75). Mr. Pappas also indicated that a fuse tong is an electrical tool not a mechanic's normal tool. He also questioned why an electrician would need a voltmeter if the box in question was in fact foolproof (Tr. 

76). He also candidly admitted that if he observed a mechanic pull a fuse by 

hand with the switchbox in the OFF position, he would cite him for a violation, but if he observed an electrician checking the box with a voltmeter 

and it indicated no voltage, he would probably not cite the electrician if 

he pulled the fuse by hand. But in the instant case, Mr. Feasal expressed 

complete ignorance as to the use of a fuse.tong and he was not an electrician 

(Tr. 77). 

Respondent's Testimony and Evidence 

Ronald Stapley, testified that he has been employed as an electrical 

supervisor for the respondent for 18 years, supervises a crew of five people 

in the mine electrical department, and that his department handles electrical 

installations and maintenance. He was called to the scene of the citation 

in question shortly after Mr. Pappas issued it. His people are equipped 

with all the necessary protective equipnent required to perform their jobs, 

and fuse tongs were located in the electrical shop. All of his electricians 

are supplied with voltage-metering devices which they carry with them to 

determine whether any of the circuits they work on are electrically alive. 

He identified the fuse box in question (Exh. R-1) as the 450-volt Trumbull 

disconnect switch which is the subject of the citation in question, and 

indicated that it provides 440 volts to operate the crane in the garage. 

He also indicated that he tested the box after the citation issued and 

identified Exhibit R-5 as a memorandum dated November 19, 1979, which he 

prepared, and he read the following pertinent portion into the record (Tr. 

43): "The Trumbull three-phase 30-amp fuse disconnect switch was checked 

from phase to phase and to ground on load side and was found to be zero 

voltage on both checks with switch in OFF position. All points of access 

were checked and found to have zero voltage readings." 

3575 

I I I 

~ .. i 

I 

1. 
Mr. Stapley testified that he tested every accessible area inside the 

opened switchbox with a voltmeter and he indicated that the switch is 

enclosed in a metal enclosure, that the live voltage area between the 

switch and the box itself could only be reached with great difficulty, 

and one would have to have "pretty small hands" to reach into that area. 

The box has a cover lid enclosing it and in order for the switch to be in 

an ON position the lid has to be closed and there is a mechanical interlock installed on it and one cannot gain access to the inside of the box 

until the switch is turned to the OFF position. He traced the path of any 

current entering the box with the switch in the ON position, and indicated 

that power enters the box at the upper lefthand corner through the first 

fuse, and in this position a spade at the bottom of the fuse position is 

i~ a closed position. When the switch is OFF, the spades are open, and 

no current passes through the box, but rather, stops at the top of the box 

where it is "alive." If the switch is in the OFF position, everything in 

the box itself is "cold", and if one were to reach in and grab one of the 

fuses he would not receive a shock. He identified Exhibit R-2 as a 

schematic of the current path to the box and indicated that current enters 

the box at the top left fuse and exits at the lower right end of the third 

fuse to the load (Tr. 44-50). 

Mr. Stapley stated that the switchbox in question is manufactured to 

provide maximum protection to an individual in that the box has a safety 

interlock and when the switch is on all three fuses are energized at the 

same time, and when it is off all three are deenergized simultaneously. 

In his opinion, the box is deenergized with the switch in an OFF position, 

and if the main plant switch were turned off all of the power in the plant 

would be shut down and the plant could not operate (Tr. 50-52). 

On cross-examination, Mr. Stapley indicated that in the event of a 

mechanical failure within the switchbox, it is possible that the blades may 

not be completely pulled out when the box door is open, but this would happen 

if the bar actually broke and was stuck in the closed position. He conceded 

that in the event the secondary circuit within the box were deenergized, that 

portion of the circuit stopping at the first fuse would still be energized 

(Tr. 52-54). 

In response to further questions, Mr. Stapley stated that an electrician 

would never reach in and pull out a fuse by hand as Mr. Feasal did, and that 

the usual procedure that an electrician would follow would be to turn the box 

switch off and lock it out before performing any maintenance work on the box. 

He could not explain why Mr. Feasal did what he did since lock-out procedures 

were in effect at the time the citation issued. The switchbox in question 

does.not require frequent maintenance, and he speculated that the fuses were 

pulled by hand simply to turn off the power to the crane. He explained the 

procedure followed by his electricians in checking for bad fuses. An electrician would throw the switch to the OFF position, open the switch door, 

check it for power, turn the switch on and make a voltage check with a voltmeter to determine which fuse was bad, and he would then turn the switch 

to the OFF position and remove the defective fuse by hand.(Tr. 54-59). 

3576 
Mr. Stapley indicated that the fuse box is part of the circuit from the main 

power source to the box, but that it would only be energized up to the top 

of the box disconnect (Tr. 60). 

Harold McKinnon, testified that he has been employed by the respondent 

for 32 years and that he is the safety supervisor for all of its plants. He 

was present at the facility on June 21, when the inspection took place and 

confirmed Inspector Pappas' recollection concerning Mr. Feasal pulling the 

fuses by hand, and recalled that the area was damp. A rubber mat was in 

place under the fuse box in question, and he indicated that one can determine 

whether the switchbox is "hot" by visually observing the knives on the foot 

bar from the side of the fuses. When the switch is in the ON position, the 

knives are up and insert themselves into the contact point, and when they 

are down, the switch is disconnected and OFF, and safe in that position. 

He was with Mr. Stapley when he tested the switchbox and confirmed his findings that "everything" was in order. When the switch is OFF, one would have 

to make an effort to reach around behind the box to touch an energized circuit, and the box itself is designed to preclude this from happening (Tr. 

61-67). 

On cross-examination, Mr. McKinnon stated that he never observed a 

mechanic remove a fuse by.hand and that he was as surprised as Inspector 

Pappas was when Mr. Feasal did it (Tr. 67). In response to further 

questions, he candidly admitted that fuses were supposed to be removed by 

fuse tongs, that tongs were available long before the citation issued, "but 

there is probably not as much emphasis put on it as they are right now" (Tr. 

68). When asked whether the box could become energized when it was in the 

OFF position, he answered as follows (Tr. 69): · 

No. That particular switch, if you know what to look 

for on there, I don't think you got any worries at all. If 

you know what to look for. It is designed in such a manner 

that you can see the working parts in there and if that 

knife doesn't drop down out of there, you better stay out. 

When asked whether the fuse knife could hang up and not completely close 

when the switch was in the OFF position, he answered: "I'm sure that there 

is a possible [sic] something might go wrong. It's not a hundred_ percent". 

If two of the knives closed and the other one did not, he indicated that 

"you are going to get poked on the one that the knife didn't drop down" (Tr. 

70). When the fuse box switch is in the ON position, the circuit coming into 

the box would complete itself by going through all of the fuses and out to the 

load, and if the switch is OFF, current stops at the point where it enters tne 

top of the box at the first fuse and there is no completed circuit through the 

box since the current would stop at that point (Tr. 71). Mr. McKinnon stated 

that in his capacity as safety director he always. strives to educat~ his 

personnel to use proper safety procedures in their work, and that in dealing 

with the different types of switchboxes in the plant he would prefer that 

they use fuse tongs when fuses are changed out, but that the switchbox in 

3577 
question is not the type of box where this is required, and·when one is 

"troubleshooting" a box he may not have tongs readily available and he would 

simply reach in and remove a fuse (Tr. 72). 

Findings and Conclusions 

Fact of Violation 

The citation in this case concerns a Trumb.i1130-amp, 450-volt fuse 

interlock switch box located at respondent's plant garage. The bo~ serves 

as the only source of electrical power to an overhead crane located nearby 

in the garage through which electrical energy passes to service the crane • 

.l'he critical question presented is whether the box in question constituted 

an energized circuit on the day the citation issued. Petitioner takes the 

position that while the box may have been disconnected and deenergized at 

the point where the power cable enters the top of the box where it is normally connected to the first fuse inside the box, the failure to deenergize and lock out the box at the main plant power switch constituted a 

deenergization of a portion of the circuit but not of the entire circuit 

itself. Since a portion of the circuit was still energized at the time the 

fuse was pulled and replaced by hand, the petitioner asserts that the situation presented a potential danger in the event of a mechanical failure in 

the box itself. In short, petitioner's view is that the entire circuit 

consisted of a "primary side," consisting of the main power cable which 

entered the box at the top, and a "secondary side," which consisted of the 

fuses and wiring inside the box. Further, notwithstanding the fact that the 

circumstances presented posed an unlikely probability of an actual accident 

and that the hazard presented was minimal, petitioner nonetheless maintains 

that the failure to deenergize the entire circuit at the plant main power 

source constitutes a violation of the cited safety standard (Tr. 9-12). 

Respondent takes the position that the term "energy" is defined by 

Webster's Third New International Dictionary at pages 751 and 408 as "To 

impart energy; make active; to make energetic or v_;_1~orous; to make an electric circuit alive electrically by applying voltage," and "the complete path 

of an electric current including any displacement current." Respondent 

argues that the box in question is fed by electric current, but that when 

the box is opened to expose the inner accessible parts which are within 

reach of someone placing their hand into the box, the box is deenergized and 

therefore no circuit or flow of current passes through the fuse holders to 

the load side of the box. Conceding that there is current to the backside 

of the box, respondent asserts that any access to this area is protected by 

insulation and a person cannot be electrically shocked by the current flow 

itself, and suggests that the standard on its face provides an exception 

which states "unless equipnent and techniques especially designed to prevent 

electrical shock are provided and used for that purpose" (Tr. 12-13). In 

this regard, respondent asserted that the box in question was specifically 

purchased and installed to provide maximum protection to personnel and that 

one cannot have access to the inside of the box unless the switch is off 

and covered up, and that at the time the fuse was pulled·by hand the circuit 

3578 

-·-·---··------------
was deenergized through the mechanical function of the box itself and that 

testing of the box. at the time the citation issued established that fact 

(Tr. 15-16). 

Petitioner's initial view of the language of the standard, which provides 

for an exception, was that only fuse tongs or similar devices for removing and 

replacing fuses are acceptable and that MSHA would object to the existence of 

any mechanism within the box itself as an absolute defense to the standard. 

As an example, MSHA counsel stated that in the event of a mechanical failure 

in the box an employee opening it may not notice that the "knives" behind the 

fuses had not disengaged and that this presents a chance that the employee 

will be shocked (Tr. 15). However, during closing arguments, counsel candidly 

admitted that while the first phrase of the language of section 56.12-36 is 

direct and absolute in that it proscribes the removal of fuses by hand, the 

remaining portion dealing· with an exception which states "unless equipment 

and techniques especially designed to prevent electrical shock are provided 

and used for such purposes" is ambiguous (Tr. 84). 

On the facts presented in this case, it could be argued that the switchbox in question is engineered in such a fashion as to provide maximum safety 

protection. The manufacturer's specifications (Exh. R-3), reflect that the 

box contains some rather sophisticated interlocking safety devices, including 

a locking mechanism that locks the switch into a full OFF position when activated, has visible fuse contact blades, and is enclosed in a heavy gauge steel 

container provided with fixtures to facilitate padlocks. In addition, while 

it is true that the voltmeter test conducted by Mr. Stapley and Mr. McKinnon 

(Exh. R-5), was conducted sometime after the citation issued, the fact remains 

that the test was conducted on the identical box cited and it confirmed that 

access to the fuses cannot be made unless the switch is in the OFF position, 

and in that position, the voltage meter indicated no voltage when checked 

from phase-to-phase and to ground on the load side. 

The first question to be addressed is whether or not the switchbox 

mechanism in this case, while in the OFF position, constitutes an energized 

circuit within the meaning of the standard. Respondent's position is that 

under the definition of an electrical energized circuit, a switchbox which 

is turned off simply is not an energized circuit, even though the power cable 

feed line to the top of the box. is energized to that point. Although respondent agrees that the practice of removing fuses by hand is not a good one, 

and that as a result of the citation, fuse tongs are now provided wherever 

there is an electrical box containing fuses, it still maintains that no 

current passes through the box when the cover lid is opened and is in the 

OFF position, and the result is that there is no energized circuit within 

the box (Tr. 86-87). 

A second issue which needs to be addressed is the question of interpretation and application of that part of the standard which seems to provide for 

an exception to the requirement that fuse tongs be used when removing and 

replacing fuses. The question is whether or not the exception relates to, 

or is limited to, methods for removing and replacing fuses and whether the 

3579 
asserted built-in safety features of the box itself, coupled with the testing 

procedures followed by trained electricians, are sufficiently reliable so as 

to come within the exception. In this regard, and in response to my questions, 

the respondent conceded that the switchbox in question has not been designated 

as a "fail-safe" device by MSHA, and neither the inspector or the respondent 

were aware of any MSHA approval labels affixed to the box (Tr. 81). 

An inherent basic problem presented in this case lies with the ambiguity 

of the language used in section 56.12-36 as it relates to the exception and 

the requirement for the use of fuse tongs. The term "energized circuit" is 

not further defined by the definitions found in section 56.1, and I take 

note of the fact that while section 56.12-36, uses the phrase energized 

ci~cuit, section 56.12-37, which requires the use of fuse tongs or hotline 

tools with no exceptions, does not use the phrase energized. It simply 

refers to high-potential circuits without qualification, and "high-potential" 

is defined as "more than 650 vol ts", while "low-potential" is defined as 

"650 vol ts or less". 

The Dictionary of Mining, Mineral, and Related Terms, published by the 

U.S. Department of the Interior, 1968 Edition, defines the term "circuit" in 

pertinent part as follows at page 210: "A conducting part of a system of 

conducting parts through which an electric current is intended to flow. The 

course followed by an electric current passing from its source through a 

succession of conductors and back to its starting point." 

The term "switch" is defined in pertinent part at page 1111 of the 

Mining Dictionary as: "[M] echanical device for opening and closing an 

electric circuit." The term "fuse" is defined in pertinent part at page 4 71 

as: "An overcurrent protective device with a circuit-opening fusible member 

directly heated and destroyed by the passage of overcurrent through it." 

Upon consideration of the language contained in sections 56.12-36 and 

56.12-37, it occurs to me that if these standards are intended to provide protection against accidental electrical shocks or accidents, or to absolutely 

require the use of fuse tongs or other mechanical devices when removing or 

replacing fuses, it would have been a simple matter for the standards writers 

to state that proposition by specifically requiring the use of such mechanical 

devices for both high and low potential circuits. However, by including an 

exception as part of section 56.12-36, I can only assume that the drafters 

of the standards may have believed that a low-potential circuit is not as 

critical, in terms of safety as a high-potential circuit, and therefore provided for an exception for the removal and replacement of fuses as long as 

"equipnent and techniques especially designed to prevent electrical shock are 

provided and used for such purposes." As an alternative, and in order to 

dispel any ambiguity that arises from the language of the two standards, I 

suppose that the Secretary could have promulgated a standard. requiring that 

all power in a mine be turned off when fuses are removed and replaced. 

3580 
Petitioner offered no expert testimony from any of its electrical personnel to explain the.distinctions made by the standards in question. On the 

other hand, respondent's testimony and evidence reflects that company safety 

policy and procedure dictates that only trained electricians are authorized 

to perform maintenance on electrical equipment such as the box in question. 

Aside from the interlocking safety device on the box itself, which automatically triggers an OFF switch when the box cover lid is opened, respondent 

asserts that a trained electrician would normally look into the box to 

insure himself that the fuse knives are disconnected, and he would also 

apply a voltmeter to the box to satisfy himself that there i:S no "live" 

current in the box before proceeding to remove a fuse or otherwise perform 

maintenance on the box. I conclude that the use of the voltage meter and 

the visual inspection procedure by trained electricians is to prevent electrical shock, and if such procedures were used they would fall within the 

exception language noted in section 56.12-36. Further, there is an inference in this case that the inspector who issued the citation is in agreement 

with my conclusion in this regard since he candidly admitted that had he 

observed an electrician checking the box with a voltage meter he would not 

have cited him for pulling out the fuse by hand. His concern was the fact 

that he observed a non-electrician mechanic doing this without making any 

additional tests or observations. 

It seems clear to me that the switchbox in question, including the three 

fuses and wiring inside the box are incorporated as part of the total electrical circuit providing power to the crane. The path of current within the 

circuit is from the main plant power source to the top of the switchbox, 

through the fuses and switching circuit inside the box, and out to the load. 

It also seems clear to me that the current passing through the completed 

circuit may be interrupted in several ways. An overload or mechanical failure 

on the circuit would obviously cause a fuse to blow and interrupt the flow of 

current. The circuit is also interrupted when the switchbox is turned to the 

OFF position and this is accomplished by opening the cover lid to the box. 

In its posthearing argtnnents filed August 18, 1980, respondent asserts 

that when the fuse box in question is in the OFF position there is 

no complete path of electric current and that the box includes a roller 

cam action and a multiplying linkage design with a powerful spring action 

that always throws to full OFF or ON and that there is no halfway position 

because there is no dead center. In these circtnnstances, respondent maintains that since the box is especially designed to prevent electrical shock 

and used for that purpose, the exception provided in section 56.12-36 is 

applicable in this case and that an energized circuit was not present. 

In addition to the foregoing, respondent states that MSHA has accepted 

a lock-out procedure wherein respondent is permitted to throw a switch to 

the OFF position, lock it out and proceed with repairs since the current 

is deenergized. Yet, in this case, MSHA insists that the power must be shut 

off at its source in order to have the circuit deenergized. Respondent 

fails to perceive any difference as the fuses are deenergized when the interlock doors of the switchbox in question are opened. 

3581 
Respondent's assertion that it is unreasonable and somewhat inconsistent 

to require it to shut off the main plant power source when performing work 

or changing fuses in the box is not really the critical issue in this case. 

In this regard, I reject the petitioner's argument made during the hearing 

that the failure to turn off the main power supply, thereby deenergizing the 

complete circuit, including the box and fuses, constituted a violation of 

the cited standard. Failure to deenergize or to lock out circuits and 

equipnent while performing maintenance work are separate conditions or 

practices covered by sections 56.12-16 and 56.12-17, and if the inspector 

believed that these sections were violated it was incumbent on him to 

specifically cite the respondent accordingly. 

The critical issue presented in this case is not the fact that the main 

power switch was not turned off, but rather, the fact that an employee was 

observed removing and replacing fuses by hand contrary to the stated requirements of section 56.12-36. On the facts presented in this case, it is clear 

that the fuses in question were in fact removed from the box by hand and 

replaced by hand contrary to the clear prohibition against such a practice. 

The critical question is whether the box and fuses constituted an energized 

circuit. If the answer to this question is in the affirmative, then the 

citation must.be affirmed unless the respondent can establish that "equipment 

and techniques especially designed to prevent electrical shock" were provided and in fact used at the time the fuses were pulled and replaced by 

hand, thereby making the exception found in section 56.12-36 applicable. 

Respondent's reliance on the exception found in section ·56.12-36 is based 

on the following factors: 

1. The switchbox is manufactured to provide maximum 

protection in that the fuses are automatically deenergized 

simultaneously when the box is opened, thereby resulting in 

the switch being placed in a complete OFF position. With the 

switch in this position, the circuit is interrupted and that 

portion within the confines of the box itself is "cold" and 

completely deenergized. 

2. A test conducted on the identical box in question 

with a voltmeter confirmed the fact that no current flows 

through the box circuitry with the switch in the OFF 

position. 

3. With the switchbox opened and in the OFF position, 

one can visually observe whether the fuse spades are opened 

and not engaged, thereby confirming the fact that they are 

deenergized. 

4. Trained electricians perform maintenance on the 

boxes and check them out with voltmeters before attempting 

to remove fuses. 

3582 
After a careful review and consideration of all of the arguments presented in this case,· I conclude and find that the facts presented support a 

finding of a violation of section 56.12-36, and the citation is AFFIRMED. 

Although the respondent has advanced several meritorious argtunents in support of its case, and particularly with regard to the exception noted in 

section 56.12-36, the fact is that at the precise moment Inspector Pappas 

observed Mr. Feasal reach in and pull the fuses by hand, none of the aforementioned factors cited by respondent in support of the proposed application 

of the exception were present. On the facts presented in this case, it seems 

clear that at the time Mr. Feasal pulled the fuses out of the box by hand, he 

had conducted no tests with any meters to ascertain whether the box was hot 

or cold. 

With regard to the test conducted by the respondent subsequent to the 

issuance of the citation, the record reflects that the box was tested with a 

voltmeter well over a year later and the fact that the tests indicated a 

"cold" circuit inside the box is of little value in determining the condition of the box at the time the citation issued. As for the asserted builtin safety features of the box in question, while it is true that it is 

engineered in such a way as to provide maximum protection against accidental 

electrocution or shock, the fact is that respondent's own testimony indicated that the box is not an absolute failsafe device and that it can malfunction. For example, Mr. Stapley testified that while the box is normally 

deenergized when the switch is in an OFF position, it was possible that in 

the event of an accident, the fuse bar blades could remain engaged even 

with the box door opened, and if this occurred, current would continue flowing through the first engaged fuse. Mr. Stapley also testified that while 

the current stopped at the top of the box when the switch was in the OFF 

position with the box door opened, there was an area between the switch and 

the box itself which remained energized and accessible to a person with 

small hands. Mr. McKinnon conceded that someone could conceivably reach 

behind this area, but that it would take some effort. And, while he 

believed the box in question presented no problems when it was in the OFF 

position, he tempered his statement by indicating that this was true only if 

one "knew what to look for," and he conceded that it was possible for a fuse 

knife to remain open and not fully engage; and that if this occurred the 

circuit. through the fuse would stll be "hot." Finally, both Mr. Stapley and 

Mr. McKinnon expressed surprise over the fact that a nonelectrician such as 

Mr. Feasal would reach in and pull fuses by hand contrary to company policy 

and procedure. 

With regard to the question as to whether the fuse box in question constituted an "energized circuit" at the time Mr. Feasal was observed pulling 

the fuses by hand, on the facts presented in this case it seems clear that 

even though the box was opened and the switch was in the OFF position, current 

flowed to the top of the box and into ·the small area characterized as somewhat inaccessible between the switch and the box. In the event the fuse 

blades failed to disengage, current would continue to flow through the fuses. 

The standard, on its face, does not differentiate between a completed and 

partial energized circuit, and respondent urges a restrictive interpretation 

which would terminate the energized circuit at the point where it enters the 

3583 
box, while petitioner urges a broad interpretation which would take into 

account possible accidents and failures within the box itself, thus permitting the circuit to remain open and completed. On balance, I believe that 

petitioner has the better part of the argument, particularly on the facts 

and circumstances presented in this case, where a nonelectrician acting on 

his own volition, either out of total ignorance or lack of concern for his 

own safety, places himself in jeopardy. I believe that the standard was 

intended to preclude just such an occurrence. 

Negligence 

Petitioner conceded that the facts presented in this case do not indicate that the respondent had any prior knowledge concerning Mr. Feasal's 

pulling the fuses by hand or that the respondent condoned such a procedure 

• by its mechanics when the switchbox was required to be turned off for maintenance purposes. Petitioner suggests that if any negligence were present, 

it was minimal (Tr. 78). On the facts and circumstances here presented, I 

cannot conclude that Mr. Feasal's unexplained and foolhardy act of reaching 

into the box and removing the fuses by hand with no apparent examination of 

the fuse knives or testing of the box to make sure that it was in fact "cold" 

can be attributed to the respondent. I find that the respondent was not 

negligent. 

Good Faith Compliance 

Petitioner concedes that the citation was abated in good faith by the 

respondent (Tr. 78), and I adopt this as my finding in this proceeding. 

Gravity 

Although one can conclude that the practice of a mechanic, who is not 

a trained electrician, reaching into a switchbox to remove a fuse by hand 

without conducting any tests to insure that the box is not alive with current is a serious matter. While it has not been established that the 

switchbox in question was in fact failsafe, there was a potential, although 

somewhat remote, of someone being electrocuted by pulling the fuses by hand 

(Tr. 84). Petitioner conceded that it was extremely remote that someone 

could have been injured on the day the citation issued (Tr. 85). Even so, I 

cannot overlook the testimony of Mr. McKinnon who candidly admitted that the 

area behind the box was still energized even though the switch was off, that 

it was possible for a mechanical failure to occur which may have prevented 

the fuse knives from completely closing, thereby permitting current to continue through the circuit inside the box,-and that a novice who opens the 

box without examining it closely to ascertain whether the knives are open or 

fails to test it with a voltmeter could be subjected to a potential hazard. 

Under these circumstances, I find that the condition cited was a serious violation. 

History of Prior Violations 

Petitioner conceded that respondent's history of prior violations is a 

good one and does not warrant any increased assessment (Tr. 82), and I adopt 

this as my finding on this issue. 

3584 
Size of Business and Effect of Penalty on Respondent's Ability to Remain in 

Business 

The parties stipulated that respondent is a medium-sized operator and 

that the proposed civil penalty assessment will not adversely affects its 

ability to remain in business, and I adopt this stipulation as my finding 

in this regard. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions made in this proceeding, a civil penalty of $50 is assessed for Citation No. 368661, June 21, 

1978, for a violation of 30 C.F.R. § 56.12-36. 

ORDER 

Respondent IS ORDERED to pay the civil penalty assessed by me in the 

amount of $50 within thirty (30) days of the date of this decision. 

,/d. vJ . t[: "'!/.-'--~ - · {9~~outr s 

Administrative Law Judge 

Distribution: 

Linda Leasure, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 East 9th Street, Cleveland, 

OH 44199 (Certified Mail) 

Ray E. Brandon, National Lime and Stone Company, First National Bank 

Building, Findlay, OH 45840 (Certified Mail) 

3585 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 1 1900 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-180-M 

Petitioner A/O No. 39-00700-05001 

v. 

Matson Gravel Pit 

DAN NEVILLE, d/b/a 

NEVILLE CONSTRUCTION, 

Appearances: 

Before: 

Respondent 

DECISION 

Robert J. Lesnick, Esq., Office of the Solicitor, 

U.S Department of Labor, Kansas City, Missouri, for 

Petitioner; 

Wilson Kleibacker, Esq., Lammers, Lammers, Kleibacker 

& Casey, Madison, South Dakota, for Respondent. 

Judge Stewart 

The above-captioned case is a civil penalty proceeding brought pursuant 

to section 110 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq. (hereinafter, referred to as the Act). The hearing in this 

matter---Was held on September 19, 1980, in Brookings, South Dakota. 

At the conclusion of the presentation of evidence and oral argument by 

the part ies on an issue-by-issue basis, a decision was rendered from the 

bench. The decision is reduced to writing in substance as follows, pursuant 

to the Commission's Rules of Procedure~ 29 C.F.R. § 2700.65: 

My ruling on the issue of the jurisdictional question 

concerning Respondent's impact on interstate commerce is as 

follows: Section 3 of the Federal Mine Safety and Health 

Act of 1977 states at Section 3(d) that 'operator' means any 

owner, lessee, or any other person who operates, controls, 

or supervises a coal or other mine or any independent contractor performing services or construction at such mine." 

Section 3(h)(l) of the Act provides that 'coal or other mine' 

means (A) an area of land from which minerals are extracted 

in nonliquid form or, if in liquid form, are extracted with 

workers underground, (B) private ways and roads appurtenant 

3586 
by Section 103(a) of the Act. Upon his arrival at the pit 

the conditions were obvious and could be seen by a person 

without requesting leave of the operator to conduct an 

inspection. 

After the inspection had been started, the representative of the operator, Mr. Dan Neville, Jr., did 

not voice an objection to the inspection or in any way 

demand that the inspector leave the property. Although 

the inspector did not have a search warrant, he was not 

required to have a search warrant under the sections or 

the provisions of the Act. The inspector initiated the 

inspection strictly in accordance with the provisions of 

the Act and the provisions of the regulations promulgated 

pursuant thereto. 

Respondent's counsel has stated that it was familiar 

with the case law with regard to such inspections. This case 

law fully establishes the right of the inspector, a representative of the Secretary of Labor, to conduct inspections, 

such as the inspection conducted by Inspector Elvestron, without a search warrant. I therefore find that the inspection 

by the inspector was an authorized inspection. 

Citation No. 334333 was issued on 9-27-79 by MSHA Inspector Allen Elvestron citing a Violation 56.14-1 of Title 30, 

Code of Federal Regulations. The condition or practice noted 

on the citation was as follows: "The drive unit for the 

Simons crusher was not guarded". The testimony adduced at 

the hearing has established that the crusher was, in fact, 

a Cedar Rapids crusher and not a Simons crusher as alleged. 

This does not affect the issue as to whether or not there was 

a violation of the mandatory safety standard since more specificity in allegations by MSHA is not required and the Respondent was adequately informed as to the nature of the condition 

leading to the citation. 

30 CFR 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 machine parts which may be contacted 

by persons, and which may cause injury to persons, shall be 

guarded." 

The evidence establishes that the equipment against which 

the citation was directed did include drive pulleys which are 

within the provisions of the mandatory safety standard cited. 

The record further establishes that these parts could be contacted by persons and that they could cause injury to persons. 

3589 

~ j : 

-

• [ . (:J 

• I I .JllllllL_j 
The inspector has testified that there was a fence which 

he termed a snow fence approximately three and a half to four 

feet high, installed as a guard around the equipment. The 

hazardous part of the equipment or some of it was approximately five feet high, and the fence was so near the equipment 

that it could be contacted by a person in a manner to result 

in injury to the person. The snow fence guard was described 

as a fence through which laths were woven. 

The evidence establishes that the crusher had not been 

operated for approximately one month prior to 9-27-79, the 

date of the citation, and that the equipment was in the process of being dismantled with the intention of moving it a 

short distance away. However, there was nothing to prevent 

the crusher from being used. 

Since there was a possibility that the machinery could 

be operated and that a person could be injured, the inadequate 

guarding did constitute a violation of 30 CFR 56.14-1. As 

to gravity, I find that although a serious injury might occur, 

it was improbable that an injury would occur. The testimony 

establishes that the crusher had not been operated for approximately six months before the date the citation was issued, 

that the machinery was being. dismantled for movement to a different location nearby; and that when the machinery was in 

operation, it was not in a place which was well traveled by 

miners or other persons. 

The evidence establishes that the operator had made an 

attempt to guard the machinery by installation of a fence 

around the equipment. The inspector determined 'that this 

fence was too close to the equipment and that a person could 

be injured due to this proximity of the fence to the equipment. 

The condition was abated by moving the fence away from the 

equipment a short distance. I am unable to find that this 

violation was due to negligence on the part of the operator. 

Even though the condition was obvious, there was some judgment 

to be exercised as to the best type of guarding to be used 

under the circumstances that would allow for maintenance and 

the application of belt dressing. 

Petitioner has acknowledged that the guarding was changed 

and that a new fence was constructed to abate the violation. I 

therefore find that the Respondent demonstrated good faith in 

attempting to achieve rapid compliance after notification of 

a violation. 

In consideration of the circumstances of this case and 

the application of the statutory criteria, I find that an 

appropriate penalty is $36.00. An assessment of $36.00 is 

accordingly entered. 

3590 
The parties proposed settlement of this proceeding with regard to three 

citations - Nos. 334334, 334335 and 334336. The settlement terms and assertions in support thereof were given by counsel for Petitioner as follows: 

Citation Nos. 334334, 334335, and 334336 are ~onsolidated; 

in effect eliminating Citations 334335 and 334336. The penalty 

for the refilaining Citation 334334 is raised to the amount set 

for the three violations, the prior three violations, those 

amounts totaling $100.00. The citations involved, guarding of 

the same Cedar Rapids, Iowa, crusher on three separate areas 

of that crusher, and that the increased hazard and gravity due 

to the combination would warrant the increased fine. 

The Secretary and the Respondent agree that the negligence 

exhibited was minimal; that the probability of occurrence would 

be rated improbable; that the Respondent exhibited good faith 

in his attempts to correct the possible hazards created as 

listed in the citations now combined; and that the history of 

the Respondent is good and warrants the settlement. The 

Secretary believes that the settlement reached is in the 

interest of the Mine Safety and Health Act of 1977. 

The settlement was approved at the hearing as follows: 

The agreed upon settlement is approved. It is found in 

consideration of the circumstances of this case and of the 

statutory criteria to be applied under the Act that a penalty 

of $100.00 is appropriate. A monetary penalty of $100.00 is 

therefore entered. 

Respondent is ordered to pay petitioner within 30 days of 

the date of this order the sum of $136.00. 

At the conclusion of the hearing, counsel for Petitioner acknowledged 

receipt from Respondent the sum of $136 in full payment of the assessed 

penalties. In view of the payments of the assessed penalties, the abovecaptioned proceeding was thereupon dismissed. 

ORDER 

It is ORDERED that the bench decision and approval of settlement rendered 

in the above-captioned proceeding is hereby AFFIRMED. 

It is further ORDERED that the above captioned proceeding is hereby 

DISMISSED. 

Forrest E. Stewart 

Administrative Law Judge 

3591 
Distribution: 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106 

(Certified Mail) 

Wilson Kleibacker, Esq., Lammers, Lammers, Kleibacker & Casey, 

108 North Egan, P. o. Box 284, Madison, SD 57042 (Certified Mail) 

3592 
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), 

ON BEHALF OF LESTER N. SIMMONS, 

Complainant 

v. 

ST. JOE ZINC COMPANY, 

Respondent 

DEC 1 5 1980 

Complaint of Discrimination 

Docket No. YORK 80-86-DM 

Balmat No. 4 Mine 

FINAL ORDER 

Pursuant to the attached decision and order, the parties have 

agreed that the amount of back pay due complainant is $78.12 plus interest 

at 8% from December 7, 1979 to the date of payment. Respondent also 

requests reconsideration of the penalty on the ground that this was an 

inadvertent, first offense not likely to be repeated. Based on an 

independent evaluation and de novo review I find settlement of the 

back pay claim in the amoun~proposed is fair, equitable and in accord 

with the purposes and policy of the Act. I further find that in view of 

the mitigating circumstances shown the amount of the penalty should 

be reduced to $50.00. 

Accordingly, it is ORDERED that on or before Wednesday, December 24, 

1980, respondent pay complainant the back pay agreed upon, $78.12 

plus interest at 8% to date of payment. It is FURTHER ORDERED that 

on or before the same date the operator y a penalty of $50.00 for the 

violation found. 

Distribution: 

Deborah B. Fogarty, Esq., U.S. Department of Labor, Office of the Solicitor,. 

1515 Broadway, New York, NY 10036 (Certified Mail) 

Sanders D. Heller, Esq., 23 Main St., Gouverneur, NY 13642 (Certified Mail) 

3593 

~y, .·- . . . ::_,•:: . ·~ ~~ ,: ....... ' ~... .. , ,- ·. 

1-

l \ ~ 

. -. :;; . .,~'k'4,~::,i-=,,;i,,(f-b,_~ • ..->~;eo?W",,;~i~;,,;._ ,.,:~~, 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

October 28, 1980 

SECRETARY OF LABOR, CG:r.plaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. YORK 80-86-DH 

On behalf of: Balmat No. 4 Mine 

LESTER N. SIMMONS, 

Complainant 

v. 

ST. JOE ZINC COMPANY, 

Respondent 

DECISION AND ORDER 

This is a discrimination complaint brought pursuant to section 105(c)(2) 

of the Federal Mine Safety and Health Act,~ amended, 30 U.S.C. § 815(c)(2), 

on behalf of Lester N. Simmons, a miner employed at the St. Joe Zinc Company. 

The operator moves for summary decision on the ground there is no genuine 

issue of fact material to the question of liability, and that it is entitled 

as a matter of law to an order dismissing the complaint. The Solicitor, on 

behalf of the Secretary and the complainant, opposes the motion on the ground 

there are genuine disputes as to facts material to respondent's liability, 

but that if there are not, complainant is entitled as a matter of law to an 

order directing payment of the compensation claimed. 

3594 
Based on an independent evaluation and de ~ review of the circumstances, I find the following facts material to liability are undisputed, !/ 

and that complainant is entitled as a matter of law to recover. 

Undisputed Facts 

During the week of December 3, 1979, comp~ainant Lester N. Simmons was 

employed at the St. Joe Zinc Company's Balmat No. 4 Mine, and was vicepresident, chairman of the safety cot:llllittee and the designated safety and 

health representative of Local 3701, United Steelworkers of America (Simmons 

1/ Counsel for the Secretary asserts there are factual differences which 

preclude a summary decision in this matter. A careful review of the record 

discloses, however, that the factual disputes cited are not material to the 

question of liability, and are relevant, if at all, only to the quantum of 

relief. 

The Solicitor claims that Mr. Simmons cleaned 11 toilets each week as 

part "of his usual duties (Simmons Affidavit at 6, 7), whereas respondent 

claims Mr. Simmons actually cleaned only 10 toilets each week since the 

toilet located at 1700 Sylvia Lake has been inaccessible since July 16, 

1979 (Kreider Affidavit). The operator did pay Mr. Simmons for 11 toilets 

each week, but the superintendent claims he was unaware that Mr. Simmons 

claimed to be cleaning the toilet at 1700 Sylvia Lake since he "did not 

closely examine [the] list, but gave it a.casual glance" (Kreider Affidavit). 

Another factual dispute cited by the Solicitor concerns the number of 

hours for which Mr. Simmons was actually paid during the week of December 3, 

1979. Mr. Simmons states he was paid for 37 hours that week because he 

spent 3 hours on union business on Monday, December 3, 1979 (Simmons 

Affidavit at 16). Respondent's motion states that Mr. Simmons was paid for 

40 hours that week. There is no actual dispute, however, since respondent's 

own pay records (Exh. 4 to Secretary's Opposition) disclose complainant's 

statement is correct. Respondent has not challenged its own records. 

J Neither of these disputes are material to the question of liability, 

and the only actual dispute, i.e., whether complainant regularly cleaned I 10 or 11 toilets, is material-;-if at all, only to the quantum of relief. 

It is conceivable that if it is proven Mr. Simmons only cleaned 10 toilets 

the operator may have an equitable defense of unclean hands as to the 

compensation claimed for the 11th toilet. If necessary, the parties will, 

of course, be heard on this issue. 

3595 
Affidavit at 11). He was classified as an oiler-tool nipper, and was compensated at the rate of $6.25 per hour (Simmons Affidavit at 2, 3). For the 

past 20 years, the responsibilities of oiler-tool nippers have included 

the cleaning of toilets (Answer to Interrogatory No. 12) and for at least 

4 years the oiler-tool nippers have received 1.25 hours of pay at their base 

rate for each toilet cleaned per week (Answer to Interrogatory No. 10). At 

th~ end of each week, Mr. Simmons would send a list of the toilets he claimed 

to have cleaned to the mine superintendent (Simmons Affidavit at 6, 7). 

A regular inspection of the entire mine pursuant to section 103(a) of the 

Mine Act was conducted by MSHA during the period of November 26, 1979, through 

December 10, 1979. On Monday, Tuesday and Wednesday, November 26, 27 and 28, 

1979, Mr. Simmons accompanied the inspection party as designated walkaround 

representative. On Thursday and Friday, November 29 and 30, 1979, he performed his normal work assignments including his sanitation duties. His pay 

for that week included the usual amount attributable to toilet cleaning 

(Exh. 3 to Secretary's Opposition). 

On Monday, December 3, 1979, Mr. Simmons spent 5 hours at his normal work 

duties, and 3 hours on union business for which he was not paid (Simmons 

Affidavit at 13, Exh. 4 to Secretary's Opposition). On Tuesday, December 4, 

1979, he spent 8 hours in mine-rescue training for which he was paid (Simmons 

Affidavit at 14, Exh. 4 to Secretary's Opposition). On Wednesday, December 5, 

1979, he spent 8 hours greasing machinery for which he was paid (Simmons 

Affidavit at 15). On Thursday and Friday, December 6 and 7, 1979, he a~companied two MSHA inspectors as designated walkaround representative (Simmons 

3596 

:; 
Affidavit at 12). Mr. Simmons did not clean any toilets that week, and he 

was paid for a total of 37 hours rather than the 50-3/4 hours he claims was 

owed him (Simmons Affidavit at 16, 17; Exh. 3 to Secretary's Opposition). 

Discussion 

On April 21, 1980, the Secretary of Labor filed this complaint alleging 

respondent interfered with the exercise of the statutory rights of Mr. Simmons 

as a representative of the miners in violation of section 105(c)(l) of the 

Act. The act of discrimination alleged is the operator's refusal to pay complainant his full weekly salary as a result of his spending 2 days as designated walkaround representative on a regular inspection of the mine pursuant 

to section 103(a) of the Act. Complainant prays that the operator be ordered 

to pay the amount of compensation withheld, $85.94, with interest at 8 percen~; that respondent expunge any and all references to the incident from 

complainant's work records; and that respondent be assessed an appropriate 

civil penalty for its interference with complainant's exercise of his 

statutory rights. 

At issue in this litigation is the proper construction of the requirement 

contained in section 103(f), 30 u.s.c. § 813(f), of the Act that a designated 

walkaround representative "shall suffer no loss of pay during the period of 

his participation in the inspection." l:_/ Complainant contends that the plain 

ll Section 103(f), 30 u.s.c. § 813(f), of the Act provides: 

"Subject to regulations issued by t_he Secretary, a representative of th~ 

operator and a representative authorized by his miners shall be given an 

opportunity to accompany the Secretary or his authorized representative during 

the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a), for the purpose of aiding such inspection and to 

3597 

l 
language of the statute requires he be paid all his usual weekly compensation 

without regard to his failure to carry out all his assigned duties~ He asserts 

that.cleaning toilets was an integral part of his job, and has been part of 

the regularly assigned duties of oiler-tool nippers for over 20 years. He 

argues that the fact his employer took into account the number of toilets 

cleaned each week in calculating his pay is irrelevant since the statute 

requires he be paid all the remuneration he would have received but for the 

time spent in the exercise of his walkaround rights. Complainant relies on 

Consolidation Coal Company, 2 FMSHRC 1056 (May 5, 1980), in support of his 

position. In that case, a scraper operator was prevented from performing 

grade 5 overburden removal work when he was assigned walkaround duties. As 

a result of missing the premium rate work, he was paid at the grade 3 or 

regular rate. The operator argued that the wage agreement contempl~ted that 

the higher rate need only be awarded when the specified work is actually 

performed. The judge found, however, that the miner was unfairly penalized 

for exercising his walkaround rights, and that the failure to compensate him 

fn. 2 (continued) 

participate in pre- or post-inspection conferences held at the mine. Where 

there is no authorized miner representative, the Secretary or his authorized 

representative shall consult with a reasonable number of miners concerning 

matters of health and safety in such mine. Such representative of miners who 

is also an employee of the operator shall suffer no loss of pay during the 

period of his participation in the inspection made under this subsection. To 

the extent that the Secretary or authorized representative of the Secretary 

determines that more than one representative from each party would further 

aid the inspection, he can permit each party to have an equal number of such 

additional representatives. However, only one such representative of miners 

who is an employee of the operator shall be entitled to suffer no loss of pay 

during the period of such participation under the provisions of this subsection. Compliance with the subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act." (Emphasis 

added.) 

3598 
at the rate applicable to the duties he would otherwise have performed was 

an act of discrimination within the meaning of section lOS(c) of the Act. 

Respondent claims that toilet cleaning is done on a piecework basis for 

which miners receive bonus pay for each toilet cleaned, and that therefore 

it is required to pay Mr. Simmons only his regular hourly rate for the time 

spent accompanying the inspectors. The operator maintains it would be unfair 

to require it to pay him for housekeeping duties not actually performed since 

it had to pay another miner to clean the toilets, ~nd since Mr. Simmons could 

have rearranged his work schedule to clean toilets on other days. 1/ 

Whether or not Mr. Simmons could have rearranged performance of his 

sanitation duties is immaterial since his toilet-cleaning duties were as much 

a part of his regularly assigned responsibility as his equipment maintenance 

work. Thus, while complainant was regularly employed to work a 40-hour week 

at both his equipment maintenance and sanitation duties he was compensated 

for 53-3/4 hours. The sanitation duties were not extra or piecework performed 

in addition to his regular 40-hour work week, but were performed as part of 

that regular 40-hour work week (Answer to Interrogatory No. 4). Obviously, 

1/ The operator argues that although it was Mr. Simmons' usual practice to 

clean the toilets on Thursdays and Fridays, he had done so on other days on 

three prior occasions and that "there was no absolute routine which prevented 

Mr. Simmons from cleaning the toilets on days other than Thursday and Friday" 

(Kreider Affidavit). Mr. Simmons claims, however, that "he cleaned the 

, toilets on Thursday and Friday of each week since these days.were most con-

/ venient for David Lane, who operated the underground utility vehicle and 

; drove him to the various toilets in the mines and carried the emptied waste 

~ products to the surface" (Simmons Affidavit at 9). Complainant also requests 

that official notice be taken that the three prior occasions on which he 

cleaned toilets on other days were all in weeks which had holidays falling 

on Thursday or Friday. For the reasons stated in the text, this dispute is 

irrelevant to the disposition of the motion. 

3599 
when complainant was performing his sanitation duties he was not performing 

his equipment maintenance work. No one has suggested that had Mr. Simmons 

chosen to clean toilets rather than maintain equipment he should be docked 

pay for his failure to do maintenance work. If nonperformance of his main3 

. if 

tenance duties is excused by the walkaround provision, then nonperformance a 

.t.:? 

of his sanitation duties must likewise be excused. ,~ 

->: 

-~ That the requirement of section 103(£) that miners exercising their walk- -~ 

around rights "shall suffer no loss of pay" means they are to receive their 

customary and usual compensation is made abundantly clear in the legislative 

history. In the Senate's consideration of the Mine Act, miner participation 

in inspections was recognized as an essential ingredient of a workable safety 

plan. Senator Javits explained the critical importance of the walkaround f 

right as part of a comprehensive scheme to improve both safety and 

productivity in the mines: 

First, greater miner participation in health and safety 

matters, we believe, is essential in order to increase miner 

awareness of the safety and health problems in the mine, and 

secondly, it is hardly to be expected that a miner, who is not 

in business for himself, should do this if his activities 

remain uncompensated. 

In addition, there is a general responsibility on the 

operator of the mine imposed by the bill to provide a safe 

and healthful workplace, and the presence of miners or a 

representativ.e of the miners accompanying the inspector is 

an element of the expense of providing a safe and healthful 

workplace * * *· But we cannot expect miners to engage in 

the safety-related activities if they are going to do without any compensation, on their own time. If miners are going 

to accompany inspectors, they are going to learn a lot about 

mine safety, and that will be helpful to other employees and 

to the mine operator. 

3600 
In addition, if the worker is along he knows a lot about 

the premises upon which he works and, therefore, the inspection can be much more thorough. We want to encourage that 

because we want to avoid, not incur, accidents. So paying 

the worker his compensation while he makes the rounds is 

entirely proper**.*• We think safe mines are more productive mines. So the operator who profits from this production should share.in its cost as it bears directly upon the 

productivity as well as the safety of the mine * * *· It 

seems such a standard business practice that is involved 

here, and such an element of excellent employee relations, 

and such an assist to have a worker who really knows the 

mine. property to go around with an ins.pector in terms of 

contributing to the health and safety of the operation, that 

I should think it would be highly favored. It seems to me 

almost inconceivable that we could ask the individual to do 

that, as it were, in his own time rather than as an element 

in the operation of the whole enterprise. 

Committee Print, LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH 

ACT OF 1977, 95th Cong., 2d Sess. (July 1978) at 1054-1055 (hereinafter cited 

as Leg. Hist.) 

Senator ~illiams, Chairman of the Committee on Human Resources, also discussed the importance of the walkaround right in the context of improving 

safety~consciousness on the part of both miners and management: 

It is the Committee's view that such participation will 

enable miner·s to understand the safety and health requirements 

of the Act and will enhance miner safety and health awareness. 

To encourage such miner participation it is the Committee's 

intention that the miner who participates in such inspection 

and conferences be fully compensated by the operator for the 

time thus spent. To provide for other than full compensation 

would be inconsistent with the purpose of the Act and would 

unfairly penalize the miner for assisting the inspector in 

; performing his duties. 

Leg. Hist. at 616-617. 

Since the purpose of the compensation provision of the walkaround right 

is to encourage miner participation in inspections, I must conclude that a 

3601 
practice which has the effect of discouraging such participation is clearly 

contrary to the intent of the statute. Consolidation Coal Company, supra. 

Accordingly, I find that the operator's refusal to pay Mr. Simmons his full 

compensation as a result of his participation in the regular inspection on 

Thursday and Friday, December 6 and 7, 1979, is contrary to the r~quirement 

of the statute and constitutes an act of discrimination. 

Conclusions of Law 

1. Section lOS(c)(l), the discrimination provision of the Act, which 

-

' 

prohibits any form of interference with the exercise of the statutory rights . -

} 

of a miner or representative of miners, is a proper vehicle for review of an : 

:;. 

~·= operator's refusal to fully compensate a representative of miners pursuant to ~ 

section 103(f). ·~ 

t 

2. The requirement of section 103(f) that a miner who exercises his walk~ 

around rights "shall suffer no loss of pay" contemplates that he will receive 

his regular, usual compensation without regard to whether he completely 

carried out all his normal duties. 

3. Complainant as a matter of law is entitled to recover the back pay 

wrongfully withheld by the operator. 

·- 4. A civil penalty of $100 for the violation of section 103(f) found is 

consistent with the purposes and policy of the Act. 

3602 
ORDER 

WHEREFORE. IT IS ORDERED THAT: 

1. Jurisdiction is reserved over this matter until the question of the 

amotmt of back pay due complainant is resolved. 

2. On or before Friday. November 14, 1980, the parties will confer and 

agree upon the amotmt of the back pay due complainant, Lester N. Simmons, 

with interest at 8 per9ent from December 7, 1979, or file herein their 

separate proposals with respect to the amount due. 

3. Ten (10) days after a final order issues with respect to back pay, 

respondent will pay a· civil penalty for the violation found of $100. 

4. The operator cease and desist from any conduct calculated to have a 

chilling effect on the exercise of the walkaround rights guaranteed miners by 

the Mine Safety I.aw. 

5. Respondent expunge all references to this incident from complainant's 

employment records. 

6. Within 15 days from the date of this order, respondent post a copy of 

this deciSion and order on a bulletin board at the mine where notices to 

~iners are normally placed, and shall 

I protected from the weather, for a 

3603 

posted there, unobstructed and 

'. 
Distribution: 

Sanders Heller, Esq., 23 Main St., Gouverneur, NY 13642 (Certified Mail) 

Deborah B. Fogerty, Esq., U.S. Department of Labor, Office of the Solicitor, 

1515 Broadway, New York, NY 10036 (Certified Mail) 

3604 

. 

! 

. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

DEC 1 6 1990 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

JAQUAYS MINING CORPORATION, ) 

) 

Respondent. ) 

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

APPEARANCES: 

DOCKET NO. WEST 79-233-M 

A/O CONTROL NO. 02-000954-05002 

MINE: JAQUAY'S MILL 

Mildred L. Wheeler, Esq., Office of the Solicitor, 

United States Department of Labor,450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

for the Petitioner, 

H. R. Gannan, Esq., 635 N. Craycroft, Suite 101, Tucson, Arizona 85711 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Adminisiration (MSHA), charges respondent with a violation of 30 CFR 

57.6-1, a regulation adopted under the authority of the Federal Mine 

Safety and Health Act, 30 U.S.C. 801, et. seq. Respondent denies the 

violation and contests the appropriateness--of the penalty. 

Respondent also asserts that the explos~ves in question did not belong 

to it and, therefore, MSHA had no jurisdiction over them. Additionally, 

respondent asserts that the Bureau of Alcohol, Tobacco and Firearms rather 

than MSHA has jurisdiction over explosives. Jacquays also contends that 

the MSHA assessment form attached to the petition for civil penalty is 

prejudicial. Based on these contentions, respondent has moved to dismiss 

the case. 

ISSUES 

1. Whether MSHA ·had the authority .to issue a citation concerning 

explosives which belonged to another but were located on respondent's 

premises. 

2. Whether MSHA had jurisdiction over the explosives in question. 

1/ 57.6-1 Mandatory. Detonators and explosives other than blasting 

agents shall be stored in magazines. 

3605 
3. Whether the attachment of the MSHA assessment form to the Secretary'• 

petition was prejudicial to respondent. 

4. Whether respondent violated the Act. 

5. The determination of a penalty, if a violation is found 

FINDINGS OF FACT 

Citation No. 379250 was issued because of the alleged failure of 

respondent to properly store detonator cords in a magazine.· The following 

-facts are uncontroverted. 

1. Thirty boxes of detonator cords were.stacked by the walkway which 

leads from the mill office to the mill (Tr. 29). 

2. The boxes were marked as explosives (Tr. 32, 47). 

3. The boxes of detonators were on the premises of respondent (Tr. 29, · 92). 

4. Miners use the walkway where the detonator cords were stacked (Tr. 

30). 

DISCUSSION 

Respondent states that the explosives were not owned by Jacquays Minina 

Corporation, but were the property of B. W. Jacquays Equipment Company (Tr. 

92). This fact, if true, does not affect the validity of the citation. Thi 

explosives were at respondent's mine and were not stored in a magazine. Thi 

danger created by the detonators stacked near a walkway was not lessened b7 

the fact that they may not have belonged to respondent. Respondent 

certainly had control over the activities which took place at its mine and, 

therefore, could have stored the detonators in a magazine or had them 

-· ~-::: 

removed from the mine area. .. '· 

MSHA has jurisdiction to inspect the mine of respondent. The mill 

office and any walkway leading from it are part of Jacquays' mine. 30 use 

802 § 3{h){C). The standard requires that explosives at a mine be stored bl 

a magazine. Respondent failed to comply with the regulation. 

Jacquays also asserts that the Bureau of Alcohol, Tobacco, and Firearat 

(ATF) has jurisdiction over the explosives rather than MSHA. A memorandua 

of understanding submitted by the Secretary and testimony at trial shows 

that MSHA has an agreement with ATF which gives MSHA jurisdiction over 

explosives on mine property (Tr. 111, Exhibit P-3). 

Respondent's final contention in support of a motion to dismiss is that 

the attachment of MSHA' s proposed penalty form {Exhibft A) to the propoul 

for assessment of civil penalty is prejudicial to its case. I disagree.· 

The Secretary is 

3606 
required to include a proposed penalty for every citation in issue, 29 CFR 

2700.27(c). The MSHA form is merely an attachment .to the proposal for 

assessment of pena,lty which explains the criteria considered by MSHA in 

making its penalty determination. The Secretary must still prove at trial 

the six criteria which must be considered by the Commission before it 

assesses a penalty. The Commission is not bound by the Secretary's 

proposal, nor is it required to follow-the formula for assessing penalties 

established by the Secretary. 29 CFR 2700.29(b). Secretary of Labor v. 

Co-op Mining Co., FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356. 

Respondent contests the amount of the penalty as proposed by MSHA. 

Having reviewed the Secretary's criteria upon which the penalty was proposed 

and the record, I find that there is no evidence to support MSHA's 

calculation of respondent's history of violations. Accordingly, the penalty 

should be reduced. Further, considering all the criteria in 30 USC 820(i) 

I assess a penalty of $100 for the violation. 

CONCLUSIONS OF LAW 

For the reasons stated above, I conclude that a violation of 30 CFR 

57.6-1 did occur. MSHA has jurisdiction to issue a citation for this 

violation. Respondent's motion to dismiss is denied. 

ORDER 

Based on the foregoing findings of fact and conclusions of law, I enter 

the following order: 

Respondent's motion to dismiss is denied. Citation No. 379250 is 

affirmed and the penalty is reduced to $100.00. 

Law Judge 

Distribution: 

Mildred L. Wheeler, Esq., Office of the Solicitor, 

United States Department of Labor, 450 Golden Gate Avenue, Box 36017, 

San Francisco, California 94102 

H. R. Cannan, Esq., Attorney at Law, 635 North Craycroft, 

Tucson, Arizona 85711 

3607 

. . .· . :._.y. ·_. :'-:y_-., ·,,. - · __ :: -,·_ ~' ·'-. -- -:- ·-: · ·· : ~ · .-~ ---:" ---·-::~- ·f~;~ -. ~ ..:: . . ·>r°"""f~!t'.:F'":-::"··{~~;'-'<~ •. ~i:~~-

• ''~ • r • -
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

DEC 1 6 1900 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

JAQUAYS MINING CORPORATION, ) 

) 

Respondent. ) 

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

APPEARANCES: 

CIVIL PENALTY ACTION 

DOCKET NO. DENV 79-458-M 

ASSESSMENT CONTROL NO. 

02-00951-05002 

EL DORADO MINE 

Mildred L. Wheeler, Esq., Office of the Solicitor, United States 

Department of Labor, San Francisco, California 

for the Petitioner, 

H. R. Gannan, Esq., Attorney at Law, Tucson, Arizona 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor on behalf of the Mine Safety and Health 

Administration (MSHA) has charged the respondent with a violation of 

30 CFR 57.13-211 a regulation issued under the authority of the 

Federal Mine Safety and Health Act, 30 U.S.C. 801 et. seq. (the Act). 

In addition to denying the violation and the appropriateness of the 

penalty the respondent moved to dismiss the case on procedural grounds. 

Respondent contends that the period of time between the issuance 

of the citation and the hearing was unreasonable. Respondent also asserts 

that the petition for assessment of a civil penalty filed by the Secretary 

failed to allege that respondent's mine affects interstate commerce. 

Respondent argues that these procedural flaws compel the dismissal of this 

case. Respondent also asserts that the attachment of MSHA's assessment 

form to the petition for a penalty is prejudicial, and therefore, the case 

should be dismissed. 

1/ 57.13-21 Mandatory. Except where automatic shutoff valves are used, 

safety chains or other suitable locking devices shall be used at connections to machines of high-pressure hose lines of 3/4-inch inside 

diameter or lar~er, and between high-pressure hose lines of 3/4-inch 

diameter or lar.ger, where a connection failure would create a hazard. 

3608 

.. 

-
ISSUES 

1. Whether the lapse of t~me between the issuance of the citation and 

the hearing was unreasonably long and, if so, whether such a delay warrants 

a dismissal of the case. 

2. Whether the failure to include a jurisdictional statement in the 

petition for assessment of a civil penalty removes this case from the 

jurisdiction of the Commission. 

3. Whether the attachment of the MSHA assessment form is prejudicial 

to respondent. 

4. Whether respondent violated the Act. 

5. The determination of a penalty, if a violation is found. 

DISCUSSION OF RESPONDENT'S MOTION TO DISMISS 

Respondent contends that the lapse of fifteen months between the time 

the citation was issued and the hearing date is an unreasonable delay in 

violation of the Act. Respondent asserts that it was the duty of the 

Secretary to provide a hearing at an earlier date. 

There are several procedural steps to review in order to determine if 

the Secretary is guilty of laches. The interim rules of procedure govern 

the relevant actions of the petitioner since the petition was mailed to 

respondent prior to the effective date of the present rules of procedure. 

See 29 CFR 2700.84 of the present rules of procedure. 

Pursuant to the Act, the penalty is to be proposed a "reasonable time" 

after the inspection. 30 U.S.C. 815(a). The Secretary issued its proposed 

assessment on March 5, 1979, approximately two months after the date of the 

inspection. 

Interim rule 2700.24(a) required the Secretary to file a petition for 

assessment of a civil penalty "promptly" after receipt of respondent's 

notice of its intent to contest the proposed penalty. MSHA received 

respondent's notice on March 9, 1979. The petition was filed on July 31, 

1979, four and a half months later. 

It was not the intention of Congress that any delay should prevent the 

execution of the Act by the Secretary. The discussion by the Senate 

Cormnittee of the requirement that penalties be promptly proposed provides 

guidance in the enforcement of filing deadlines against the Secretary. 

To promote fairness to operators and miners and 

encourage improved mine safety and health generally, 

such penalty proposals must be forwarded to the operator 

and miner representative promptly. The Committee notes, 

however, that there may be circumstances, although rare, 

when prompt proposal of a penalty may not be possible, 

and the Committee does not expect that the failure to 

propose a penalty with promptness shall vitiate any 

proposed penalty proceeding •. Senate Report 95-181, 

95th Cong. 1st Sess. 34 (1977). 

3609 
Courts have held that the necessity for enforcement of safety and 

health standards outweighs any procedural deficiencies concerning filing 

requirements, unless the operator is prejudiced by such delays. Todd 

Ship ards Corp. v. Secretary of Labor and OSHRC 566 F.2d 1327 {9th Cir. 

1977 . Stephenson Enterprises, Inc., v. Secretary of Labor and OSHRC 5~8 

F.2d 1021 (5th Cir. 1978); Jensen Construction Co., v. OSHRC and Secretar 

of Labor 597 F.2d 246 {10th Cir. 1979 • Respondent failed to present any 

evidence that it was prejudiced by the delay in the proposal of the penalty 

or in the filing of the petition. 

Respondent also asserts that the Secretary had a duty to have the case 

actually brought to a hearing prior to March 20, 1980. After the Secretary 

files his petition, it is the duty of the Review Commission to schedule a 

hearing. Unless a party moves for an expedited hearing, the case is heard 

at a time convenient to the administrative law judge and the parties. As 

with all adjudicatory bodies, the caseload does not always allow for the 

immediate trial of any particular case. 

Respondent did not request an expedited hearing, therefore, the trial 

was set at the earliest convenient date. For the reasons stated above, 

respondent's motion to dismiss based on laches is denied. 

Respondent also asserts that the failure of the Secretary to include a 

statement of Jacquays' effect on interstate commerce in the petition for 

assessment of a penalty removes the case from the jurisdiction of the 

Commission. At the time the petition was prepared and mailed, the interim 

rules of procedure were in force. These interim rules did not contain a 

provision comparable to the present rule 2700.S{a) which requires the 

jurisdictional statement referred to by respondent. The Secretary was in 

compliance with the rules of procedure. Accordingly, respondent's motion to 

dismiss based on the above contention is denied. 

Respondent's final argument in support of a motion to dismiss is 

that the attachment of MSHA's proposed penalty form (Exhibit A) to the 

petition for civil penalty is prejudicial to its case. I disagree. The 

Secretary is required to include a proposed penalty for every citation. 

29 CFR 2700.24(b) (Interim rules). The MSHA form is merely an exhibit 

which explains the criteria considered by MSHA in making its penalty 

determination. The Secretary must still prove at trial the six criteria 

which must be considered by the Commission before it assesses a penalty. 

The Commission is not bound by the Secretary's proposal, nor is it required 

to follow the formula for assessing penalties established by the Secretary. 

29 CFR 2700.27(c). (Interim rules) Sec. of Labor v. Co-op Mining Co., 

FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356. 

3610 
FINDINGS OF FACT 

The Secretary charges respondent with a violation of 30 CFR 57.13-21. 

I find the following facts to ba supported by the evidence. 

1. The connection between the pressure (bull) hose and compressor 

machine number five did not have a safety chain (Tr. 53-61, 98). 

2. Automatic shutoff valves were not in use (Tr. 66). 

3. There was.no other suitable locking device being used on the 

connection (Tr. 66, 128). 

4. The air compressor was under pressure of approximately 80 - 90 lbs. 

per square inch (Tr. 54, 110). 

5. The inside diameter of the hose was approximately 2 inches (Tr. 

67). The hose itself was 4 1/2 - 5 1/2 feet long (Tr. 61). 

6. The connection is inspected daily for air leaks. At this time, the 

miner is in close proximity to the connection while the compressor is on 

(Tr~ 77, 99). 

7. A miner who was servicing the machine was observed by the MSHA 

inspector near the connection (Tr. 56). 

8. The vibration of the compressor and the change in temperature on 

the connection could cause the hose to disconnect from the machine (Tr. 55, 

62, 80, 109, 126). 

9. There is a danger that if the connection becomes loose the pressure 

from the air would cause the hose to whip back and forth which could injure 

anyone in the area (Tr. 55, 109). 

10. The mine operator was aware of the standard requiring the use of a 

safety chain. Two other compressors had safety chains on the same kind of 

connection (Tr. 98). 

A hazard to the miners was created by respondent's failure to provide a 

safety chain across the connection on the number five air compressor 

machine. The standard was violated •. 

Respondent contests the amount of the penalty as proposed by MSHA. 

Having reviewed the Secretary's criteria upon which the penalty was proposed 

and the record, I find that there is no evidence to support MSHA's 

calculation of respondent's history of violations. Accordingly, the penaltyshould be reduced. Further, considering all the criteria in 30 U.S.C. 

820(i) I assess a penalty of $ 46 for the violation. 

3611 

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CONCLUSIONS OF LAW 

For the reasons stated above, respondent's motions to dismiss should be 

overruled and the citation affirmed. 

ORDER 

Based on the foregoing findings of fact and conclusions of law I enter 

the following order: 

Respondent's motions to dismiss are overruled. Citation No. 376110 is 

affirmed and a penalty of $46 is assessed. 

Distribution: 

Mildred L. Wheeler, Esq., Office of the Solicitor, 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

H. R. Gannan, Esq., Attorney at Law, 

635 North Craycroft 

Tucson, Arizona 85711 

3612 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CLIMAX MOLYBDENUM COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 6 1980 

Application for Review 

A Division of AMAX, INC., 

Applicant Docket No. DENV 79-122-M 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Citation No. 332535 

November 17, 1978 

Henderson Mine and Mill 

ORDER APPROVING STIPULATIONS FOR RESOLUTION OF NOISE 

CITATION ON THE BALL MILL AT THE HENDERSON MINE 

AND 

GRANTING APPLICANT'Sl10TION TO WITHDRAW 

APPLICATION FOR REVIEW 

Climax Molybdenum Company (Climax) filed an application for review in the 

above-captioned proceeding pursuant to section 105(d) of the Federal Mine 

Safety and Health Act of 1977. An answer was filed by the Mine Safety 

and Health Administration (MSHA). Thereafter, various orders of continuance 

were issued to permit the parties an opportunity to evaluate the feasibility 

of potential noise controls. 

On November 6, 1980, Climax and MSHA filed a stipulation for resolution 

of the noise citation on the Ball Mill at the Henderson Mine. The stipulation 

states as follows: 

This Agreement is made and entered into by Henderson Mine 

and Mill, Climax Molybdenum Company, a Division of AMAX Inc. 

(hereinafter "Climax"), and the Department of Labor and Mine 

Safety and Health Administration (hereinafter collectively 

referred to as "MSHA") and executed in their behalf by their 

respective attorneys. 

WHEREAS Climax has filed Applications for Review of a 

certain citation issued by MSHA, being Citation 332535 

(Docket No. DENV 79-122-M), and 

WHEREAS as the result of the work done since the filing 

of that Application for Review, Climax and MSHA believe that 

the above-referenced citation can be resolved without 

litigation. 

3613 

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NOW THEREFORE Climax and MSHA enter into the following · 

agreement: 

1. During the course of the examination of ball mill 

noise, the Henderson Mine and Mill of Climax has significantly expanded its noise control program for equipment 

and facilities at the Henderson Mine and Mill. MSHA recognizes that the Henderson Mine and Mill has developed a 

substantial ongoing hearing conservation and engineering 

noise control program for the ball mills and the Henderson 

Mine and Mill agrees to continue its implementation of that 

program. 

2. Climax and MSHA are in agreement that the primary 

burden· for further developing new quieter milling equipment 

at the Henderson Mill should fall upon the manufacturers of 

milling equipment. The Henderson Mill has and will continue 

to evaluate commercially available potential engineering 

noise controls, as manufacturers make them available or as 

suggested by MSHA, but will no longer pursue the type of 

research and development work which it has done over the 

past two years. 

3. The Henderson Mill will, as a part of.this settlement, continue to utilize rubber liner materials installed 

in ball charging and shaker screens at the Henderson Mill. 

4. With respect to the citation itself, the parties 

agree that Citation 332535, involving the ball mill operator, will be abated and Climax will pay a penalty of $25. 

5. Climax and MSHA agree that their ·personnel wili 

continue to communicate regarding developments with respect 

to noise control. The extent of time required for in-mill 

evaluation of any potential noise control will vary depending 

upon the control, the piece of equipment involved, and the 

commercial availability of the control. In the future, MSHA 

will make a reasonable attempt to advise Henderson personnel 

of any new potential engineering noise controls which may be 

feasible for use at the Henderson Mill and allow a reasonable 

time for in-mill evaluation and implementation of that control, if it is found feasible, before any citations are issued. 

It is acknowledged that ultimately Climax and MSHA may disagree as to the feasibility of a particular engineering 

noise control. In the event that Henderson personnel are in 

the process of or have already evaluated the particular 

control referred to them, information regarding the results 

of that evaluation will be made available to MSHA personnel 

upon request. 

3614 
On November 20, 1980, Climax filed a motion to withdraw the application 

for review. The motion states as follows: 

COMES NOW Climax Molybdenum Company, a Division of Ai.'IAX 

Inc., by and through its undersigned attorneys, and moves that 

the Court approve the Stipulation for Resolution of Noise 

Citations on the Ball Mills at the Henderson Mine, direct 

that the above-captioned citation be abated and assessed as 

provided in that Stipulation, and dismiss the above-captioned 

Application for Review. 

As grounds therefor Climax states as follows: 

1. As more fully outlined in the Stipulation for Resolution previously filed with the Court, the parties have agreed 

after extensive technical study that their differences with 

respect to the above-captioned citations can be resolved without the need for lengthy, complex, and expensive litigation. 

2. This motion has been discussed with Robert Cohen, 

counsel for MSHA, and he agrees that it should be granted. 

WHEREFORE, Climax Molybdenum Company respectfully moves 

that this Court grant the relief requested herein. 

By letter dated Noveniber 28, 1980, the parties were advised that the 

agreement to pay a civil penalty, as set forth in paragraph No. 4 of the 

November 6, 1980, stipulation, was beyond the scope of an application for 

review proceeding, and, accordingly, that one of several alternative courses 

of action would have to be followed before action could be taken on the stipu-

. lation and the motion to withdraw the application for review. In response 

thereto, the parties filed a supplemental stipulation on December 9, 1980. 

The supplemental stipulation states as follows: 

1. With respect to the civil penalty matters set forth 

in Paragraph 4 of the Stipulation previously filed, Climax 

and the Secretary of Labor agree as follows: 

A. MSHA's Office of Assessments has not yet proposed civil penalties for the citation mentioned in Paragraph 4 pursuant to Part 100, Title 30, Code of Federal 

Regulations because the citation has not yet been abated. 

B. Upon the Administrative Law Judge's approval 

of the Stipulation and Climax's Motion to Withdraw its 

Application. for Review, Climax and the Secretary of Labor 

wiil follow the following procedures to dispose of the civil 

penalty matter~: 

3615 

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ii. 

Counsel for the Secretary will recommend to MSHA's Office of Assessments 

that a civil penalty of $25.00 be proposed for Citation 332535 (Docket No. 

[DENV] 79-122-M). 

Climax will pay said proposed $25.00 

assessment within 30 days after the 

civil penalty is assessed by MSHA. 

The proposed disposition of this case, as set forth in the stipulations 

filed by MSHA and Climax, have been reviewed. It appears that approval of 

the stipulations will adequately protect the public interest. 

It is understood, in accordance with the agreement set forth in the 

December 9, 1980, supplemental stipulation, that upon approval of the 

November 6, 1980, stipulation and the granting of the motion to withdraw the 

application for review, MSHA will recommend that the Office of Assessments 

propose a $25 civil penalty for Citation No. 332535. It is further understood that Climax will pay such civil penalty within 30 days of the date of 

assessment. Accordingly, it is considered unnecessary to ·specifically 

order the termination or abatement of the citation and the assessment of a 

civil penalty. 

In view of the foregoing, Climax's motion to withdraw its application 

for review is GRANTED. IT IS THEREFORE ORDERED that the stipulations filed 

on November 6, 1980, and December 9, 1980, be, and hereby are, APPROVED, 

and that the above-captioned proceeding be, and hereby is, DISMISSED. 

Distribution: 

William F. Schoeberlein, Esq., Charles W. Newcom, Esq., Sherman & 

Howard, 2900 First of Denver Plaza, 633 17th Street, Denver, CO 

80202 (Certified Mail) 

James F. Engelking, Esq., W. Michael Hackett, Esq., and Richard W. 

Manning, Esq., 13949 West Colfax Avenue, Golden, CO 80401 (Certified 

Mail) 

Edward C. Hugler, Esq., and Robert A. Cohen, Esq., Office of the 

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

Arlington, VA 22203 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Administrator for Metal and Nonmetal Mine Safety and Health, 

u. S. Department of Labor 

Standard Distribution 

3616 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE DEC 1 6 1980 FALLS CHURCH, VIRGINIA 22041 

CLIMAX MOLYBDENUM COMPANY, 

A Division of AMAX, Inc., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CLIMAX MOLYBDENUM WORKERS, 

LOCAL NO. 2-24410, OIL, CHEMICAL 

AND ATOMIC WORKERS INTERNATIONAL 

UNION, 

Respondent 

Applications for Review 

Docket No. DENV 78-541-M 

Citation No. 333624 

July 31, 1978 

Docket No. DENV 78-545-M 

Citation No. 331731 

July 26, 1978 

Docket No. DENV 78-546-M 

Citation No. 332973 

July 26, 1978 

Docket No. DENV 78-547-M 

Citation No. 332974 

July 26, 1978 

Docket No. DENV 78-548-M 

Citation No. 332976 

July 27, 1978 

Docket No. DENV 78-549-M 

Citation No. 333626 

July 26, 1978 

Docket No. DENV 78-550-M 

Citation No. 333627 

July 26, 1978 

Docket No. DENV 78-551-M 

Citation No. 333628 

July 27, 1978 

3617 

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. . Docket No. DENV 78-552-M 

Citation No. 333629 

July 28, 1978 

Climax Mine 

ORDER APPROVING STIPULATIONS FOR RESOLUTION 

OF NOISE CITATIONS AT THE CLIMAX MINE AND 

GRANTING APPLICANT'S MOTION TO WITHDRAW 

APPLICATIONS FOR REVIEW 

Climax Molybdenum Company (Climax) filed applications for review in the 

above-captioned proceedings pursuant to section 105(d) of the Federal Mine 

Safety and Health Act of 1977. Answers were filed by the Mine Safety and 

Health Administration (MSHA) and Local No. 2-24410 of the Oil, Chemical and 

Atomic Workers International Union (Union). 

Thereafter, the parties entered into an agreement to study the feasibility of possible noise controls on the equipment cited in the citations. 

Various orders of continuance were issued on this basis. 

On November 20, 1980, Climax and MSHA filed a stipulation for resolution 

of the noise citations at the Climax Mine. The stipulation bears the signature of Mr. David A. Jones, Jr., who has represented the Union in these proceedings. The stipulation states as follows: 

This Agreement is made and entered into between Climax 

Molybdenum Company, a Division of AMAX Inc. (hereinafter 

"Climax"), and the Department of Labor and Mine Safety and 

Health Administration (hereinafter collectively referred to 

as "MSHA") and executed in their behalf by their respective 

attorneys. 

WHEREAS Climax has filed Applications for Review of 

certain citations issued by MSHA, being Citations 333624 

(Docket No. DENV 78-541-M), 331731 (Docket No. DENV 

78-545-M), 332973 (Docket No. DENV 78-546-M), 332974 

(Docket No. DENV 78-547-M), 332976 (Docket No. DENV 

78-548-M), 333626 (Docket No. DENV 78-549-M), 333627 

(Docket No. DENV 78-550-M), 333628 (Docket No. DENV 

78-551-M), and 333629 (Docket No. DENV 78-552-M), and 

WHEREAS the parties entered an agreement for the study 

of feasibility of possible noise controls on equipment 

involved in the above-referenced citations on August 16, 

1979, and 

WHEREAS as a result of that study the parties now 

believe they can resolve their differences with respect 

to the above-referenced citations without the need of 

litigation. 

3618 

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NOW THEREFORE Climax and MSHA enter into the following 

agreement: 

1. During the course of the above-referenced feasibility study, the Climax Mine of Climax has significantly 

expanded its noise control program with respect to rock 

drills and LHDs at the Climax Mine. MSHA recognizes that 

the Climax Mine has developed a substantial ongoing noise 

control program with respect to rock drills and LHDs and 

the Climax Mine agrees to continue its implementation of 

that program._ 

2. Climax and MSHA have previously agreed that Climax 

will not undergo major capital expenditures to evaluate the 

feasibility of cabs or panelling on LHDs, but rather the 

Climax Mine will review the results of the Henderson LHD 

work at the conclusion of that work. The Climax and 

Henderson Mines will continue their cooperation in this 

area. The Climax Mine will, as a part of this settlement, 

install mufflers on LHDs to the extent there is physical 

space available on the machine to do that. Some of the 

smaller sized LHDs are so compact that they may not be able 

to accommodate a muffler. Climax personnel will inform MSHA 

personnel of their findings on this issue as soon as they 

have made a determination regarding the availability of 

space for installation of a muffler on a retro-fit basis. 

The Climax Mine will continue its evaluation of soundabsorption material for use in the falling object protection structure on the LHDs. The parties acknowledge that 

it will take until January 1, 1981, to determine whether 

space is available and review potential mufflers for use 

on these machines and to conclude evaluation of soundabsorption materials. While there is some uncertainty as 

to a final installation schedule because of uncertainty as 

to availability of as yet unselected mufflers, and falling 

object protection structure materials, coverings, and 

installation techniques, the parties anticipate this 

installation can be accomplished by July 1, 1981. In any 

event, once a muffler for a particular LHD has been selected 

and falling object protection structure material, accompanying material coverings, and installation techniques have 

been selected, that muffler/material will be immediately 

ordered and installed as soon as practicable after it is 

received. 

3. As a part of its ongoing noise control program, the 

Climax Mine will continue to evaluate and implement, if 

found feasible, possible noise controls as they become commercially available for use on the rock drills and LHDs 

involved in the citations listed above. Climax and MSHA 

3619 

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are in agreement that the primary burden for the basic 

research and development of new engineering noise controls 

for rock drills and LHDs should fall upon the manufacturers 

of mining equipment. As controls are being developed by 

manufacturers and evaluated by Climax, Climax will, if 

necessary, make in-mine adjustments to the equipment and 

work with the manufacturers for equipment modifications in 

determining whether the equipment will be feasible for use 

at the Climax Mine; this cooperation will continue to be 

an integral part of Climax's noise control program. At 

this time, it does not appear that there are feasible con~ 

trols for ring drills because of icing problems. When the 

icing problem is resolved, additional controls will be 

evaluated. Climax will evaluate and implement, if found 

feasible, any additional controls recommended by MSHA for 

ring drills. The mini-bore drill will be muffled. 

4. With respect to jackleg drills, Climax will continue 

to pursue its evaluation of the Canadian PRM 15 muffler and 

the so-called "Aurora Muffler." In the interim, the rubbertire muffler will be installed on all unmuffled jackleg 

drills, except for the LeRoi drills, and that will be taken 

as compliance with the standard until such time as a feasible 

control with significantly greater noise attenuation is available. At the conclusion of these reviews, the Climax Mine 

will then determine whether one of these two mufflers or the 

rubber-tire muffler is suited for installation on a retrofit basis on its jackleg drills. At the present time, because 

of maintenance problems, mufflers cannot be retro-fitted · 

onto the LeRoi jackleg drill. However, Climax has begun the 

process of phasing LeRoi drills out of its operation. That 

phaseout will be completed as soon as feasible replacement 

drills are located and can be acquired. Because of the 

prior experience which Climax has had, for example, with the 

Holman jackleg, it is acknowledged that a wide-scale implementation of the rubber-tire muffler or other rock drill 

engineering noise controls may give rise to problems of 

feasibility not discovered during initial testing. Should 

that occur, issues of feasibility may need to be reevaluated to determine whether or not the control should remain 

in place. 

5. With respect to the citations themselves, the parties agree as follows: 

a. Citation 333624, involving a JarvisClark LHD and a Gardner-Denver 83 jackleg 

drill, will be abated and Climax will pay 

a penalty of $25. 

3620 
b. Citation 331731, involving a mini-bore 

drill, will be abated and Climax will 

pay a penalty of $25. 

c. Citation 332973, involving a ring drill, . 

will be vacated. 

d. Citation 332974, involving a ring drill, 

will be vacated. 

e. Citation 332976, involving a ring drill, 

will be vacated. 

f. Citation 333626, involving a Jarvis-Clark 

LHD, will be vacated. 

g. Citation 333627, involving a jumbo drill, 

will be vacated. 

h. Citation 333628, involving a LeRoi jackleg 

drill and Remington chain saw, will be 

abated and Climax will pay a penalty of 

$25. 

i. Citation 333629, involving a Wagner ST5E 

LHD will be abated and Climax will pay a 

penalty of $25. 

The parties have agreed that penalties for the 

abated citations will be assessed at $25 per 

citation because of the amounts spent in 

evaluating possible noise controls and the 

degree of good faith shown by Climax in pursuing its noise control program as a means to 

abate the citations. 

6. Climax and MSHA agree that their personnel will continue to communicate regarding developments with respect to 

noise control. nte extent of time required for in-mine 

evaluation of any potential noise control will vary depending 

upon the control, the piece of equipment involved, and the 

commercial availability of the control. In the future, MSHA 

will make a reasonable attempt to advise Climax Mine personnel of any new potential engineering noise controls which 

may be feasible for use at the Climax Mine and allow a reasonable time for in-mine evaluation and implementation of 

that control, if it is found feasible, before any citations 

are issued. It is acknowledged that ultimately Climax and 

MSHA may disagree as to the feasibililty of a particular 

engineering noise control. In the event that Climax Mine 

3621 

~~ 

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( .. 
personnel are in the process of or have already evaluated 

the particular control referred to them, information 

regarding the results of that evaluation will be made 

available to MSHA technical personnel upon request. 

Additionally, on November 20, 1980, ·Climax filed a motion to withdraw 

the applications for review. The motion states as follows: 

. COMES NOW Climax M:>lybdenum Company, a Division of AMAX, 

Inc., by and through its undersigned attorneys, and moves 

that the Court approve the Stipulation for Resolution of 

Noise Citations at the Climax Mine, direct that the abovecaptioned citations be vacated, or abated.and assessed, as 

provided in that Stipulation, and dismiss the above-captioned 

Applications for Review. 

As grounds therefor Climax states as follows: 

1. As more fully outlined in the Stipulation for 

Resolution previously filed with the Coμrt, the parties 

have agreed after extensive technical study that their 

differences with respect to the above-captioned citations 

can be resolved without the need for lengthy, complex and 

expensive litigation. 

2. This motion has been discussed with Robert Cohen, 

counsel for MSHA, and David Jones, President of the O.C.A.W., 

and they agree that it should be granted. 

WHEREFORE, Climax Molybdenum Company respectfully 

moves that this Court grant the relief requested herein. 

By letter dated November 28, 1980, the parties were advised that the 

agreement to pay civil penalties, as set forth in paragraph No. 5 of the 

stipulation, was beyond the scope of an application for review proceeding, 

and, accordingly, that one of several alternative courses of action would 

have to be followed before action could be taken on the stipulation and the 

motion to withdraw the application for review. In response thereto, the 

parties filed a supplemental stipulation on December 9, 1980. The supplemental stipulation states as follows: 

1. With respect to the civil penalty matters set forth 

in Paragraph 5 of the Stipulation previously filed, Climax 

and the Secretary of Labor agree as follows: 

A. MSHA's Office of Assessments has not yet 

proposed civil penalties for the citations mentioned in 

Paragraph 5 pursuant to Part 100, Title 30, Code of Federal 

Regulations, because none of the citations have as yet 

been abated. 

3622 
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B. Upon the Administrative Law Judge's approval 

of the Stipulation and Climax's Motion to Withdraw its 

Applications·for Review, Climax and the Secretary of Labor 

will follow the following·procedures to dispose of the 

civil penalty matters: 

i. Counsel for the Secretary will recommend to MSHA's Office of Assessments 

that a civil penalty of $25.00 be proposed for each of the following 

citations: 

333624 (Docket No. DENV 78-541-M) 

331731 (Docket No. DENV 78-545-M) 

333628 (Docket No. DENV 78-551-M) 

333629 (Docket No. DENV 78-552-M) 

ii. Climax will pay said proposed $25.00 

assessments within 30 days after the 

civil penalty is assessed by MSHA. 

2. The Oil, Chemical and Atomic Workers International 

Union, Local No. 2-24410, has been informed of this Supplemental Stipulation; however, because the Union is not a 

party to the civil penalty proceedings, the Union's signature has not been included. 

The proposed disposition of these cases, as set forth in the stipulations filed by MSHA and Climax, have been reviewed. It appears that 

approval of the stipulations will adequately protect the public interest. 

It is understood, in accordance with the agreement set forth in the 

December 9, 1980, supplemental stipulation, that upon approval of the 

November 20, 1980, stipulation and the granting of the motion to withdraw 

the applications for review, MSHA will recommend that the Office of Assessments propose $25 civil penalties for each of the following citations: 

Citation Nos. 333624, 331731, 333628, and 333629. · It is further understood 

that Climax will pay such civil penalties within 30 days of the.date of 

· assessment. Accordingly, it is considered unnecessary to specifically order 

the termination or abatement of t~e citations and the assessment of civil 

penalties. 

In view of the ultimate disposition of these cases, i.e., dismissal, it 

is considered inappropriate to enter an order vacating Citation Nos. 332973, 

332974, 332976, 333626, and 333627. It is understood that MSHA will fulfill 

the agreement by vacating these citations. 

3623 

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In view of the foregoing, Climax's motion to withdraw its applications 

for review is GRANTED. IT IS THEREFORE ORDERED that the stipulations filed 

on November 20, 1980, and December 9, 1980, be, and hereby are, APPROVED, 

and that the above-captioned proceedings be, and hereby are, DISMISSED. 

~~U '.> 

ohn F. Cook 

Distribution: 

William F. Schoeberlein and Charles w. Newcom, Esqs., Sherman & Howard, 

2900 First of Denver Plaza, 633 17th Street, Denver, CO 80202 

(Certified Mail) 

Edward C. Hugler and Robert A. Cohen, Esqs., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

David A. Jones, Jr. President, Oil, Chemical and Atomic Workers International Union, Local No. 2-24410, P.O. Box 949, Leadville, CO 80461 

(Certified Mail) 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO 81645 

(Certified Mail) 

Ms. Sylvia Balltrip, Office and Professional Employees International 

Union, Local No. 410, P.O. Box 1179, Leadville, CO 80461 (Certified 

Mail) 

James F. Engelking, W. Michael Hackett, and Richard W. Manning, Esqs., 

13949 West Colfax Avenue, Golden, CO 80202 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

3624 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. COLFAX AVENUE 

DENVER, COLORADO 80204 

DEC 1 6 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY ACTION 

Petitioner, ) 

) 

v. ) 

) 

JAQUAYS MINING CORPORATION, ) 

) 

APPEARANCES: 

DOCKET NO. WEST 80-1-M 

A/O CONTROL NO. 02-00954-05003 

MINE: JAQUAYS MILL 

Mildred L. Wheeler, Esq., Office of the Solicitor, United States 

Department of Labor, San Francisco, California 

for the Petitioner, 

H. R. Gannan, Esq., Tucson, Arizona 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration (MSHA), charges Jaquays Mining Corporation with several 

violations of regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. 801 et seq. Respondent denies the violations and 

contests the appropriateness~the penalty. Jacquays also moves for an 

order of dismissal on the grounds that the Secretary did not propose a 

penalty within a reasonable length of time, and that the attachment of the 

MSHA assessment form to the proposal for assessment of civil penalty was 

unduly prejudicial to respondent. 

ISSUES 

1. Whether the attachment of the MSHA assessment form to the proposal 

of a civil penalty is prejudicial to respondent. 

2. Whether the lapse of time between the issuance of the citation and 

MSHA's proposal of a penalty was unreasonably long and, therefore, warrants 

the dismissal of the case. 

3. Whether respondent violated the ·Act. 

4. The determination of a penalty, if a violation is found. 

3625 

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DISCUSSION OF RESPONDENT'S MOTIONS TO DISMISS 

The attachment of the MSHA proposed assessment form to the proposal of 

assessment of civil penalty filed by the Secretary is not prejudicial to 

respondent. The Secretary is required to include a proposed penalty for 

every citation in issue. 29 CFR 2700.27(c). The MSHA form is merely an 

attachment to the proposal of a civil penalty which explains the criteria 

considered by MSHA in making its penalty determination. The Secretary must 

still prove at trial the six criteria which must be considered by the· 

Conmission before it assesses a penalty. The Commission is not bound by the 

Secretary's proposal, nor is it required to follow the formula for assessing 

penalties established by the Secretary. 29 CFR 2700.29(b). Sec. of Labor 

v. Co-op Mining Co., FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356. 

As to Respondent's second ground for dismissal, the Act requires the 

Secretary to propose a penalty for an alleged violation within a "reasonable 

time", 30 USC 815(a). The penalty assessments in this case were transmitted 

to the respondent approximately 5 months after the mine was inspected. 

It was not the intention of Congress that any delay should prevent the 

execution of the Act by the Secretary. 

To promote fairness to operators and miners and 

encourage improved mine safety and health generally, 

such penalty proposals must be forwarded to the operator 

and miner representative promptly. The Committee notes, 

however, that there may be circumstances, although rare, 

when prompt proposal of a penalty may not be possible, 

the Committee does not expect that the failure to propose 

a penalty with promptness shall vitiate any proposed 

penalty proceeding. Senate Report 95-181, 95th Cong., 

1st Sess. 34 (1977) 

Courts have held that the necessity for enforcement of safety and 

health standards outweighs any procedural deficiencies concerning filing 

requirements, unless the operator is prejudiced by such delays. Todd 

Shipyards Corp. v. Sec. of Labor & OSHRC 566 F.2d 1327 (9th Cir.), 

Stephenson Enterprises, Inc. v. Sec. of Labor & OSHRC 578 F.2d 1021 (5th 

Cir. 1978); Jensen Construction Co. v. OSHRC & Sec. of Labor 597 F. 2d 246 

(10th Cir. 1979). Respondent failed to present any evidence that it was 

_prejudiced by the delay in the proposal of the penalty by the Secretary. 

For the reasons stated above, I conclude that respondent's motions to 

dismiss should be denied. 

3626 
FINDINGS OF FACT 

Citation No. 379251 

The Secretary alleges that respondent violated 30 CFR 57.9-22 1 by 

failing to provide a berm on an elevated roadway. I find the following 

facts are supported by the evidence. 

1. A roadway 12 feet wide and 50 feet long gradually rose to a height 

of 12 feet; it did not have a berm on its west side (Tr. 21, 22, 34, 100). 

2. The roadway is used by dump trucks to feed the main hopper (Tr. 

22). 

3. The roadway is on mill property (Tr. 101). 

4. The hazard is that a truck could roll off the roadway if its brakes 

failed or if the truck was not driven properly (Tr. 22, 37, 48, 100). 

5. If a truck rolled off the side of the road, the driver could be 

fatally injured (Tr. 23). 

The standard requires that berms be provided on the outer bank of all 

elevated roadways with no exceptions. Respondent failed to comply with the 

standard. 

Citation 379252 

The Secretary contends that Jacquays did not have a proper guard over 

the pinchpoint of the number l roll motor, contrary to 30 CFR 57.14-1.2 

I find the following facts to be supported by the evidence: 

1. A pinchpoint located where the v-belt rolls over a pulley of the 

number 1 roll motor was not adequately guarded (Tr. 24, 25, 107, 120, 123, 

P-2) 

2. The pinchpoint was approximately 2 - 3 feet from a platform and 3 feet 

above t.he floor of the mi 11 (Tr. 24, 45). 

3. The walkway was not used frequently by miners, but anyone had 

access to the area where the pinchpoint was located (Tr. 86, 102). 

4. At times, miners are in the area to do maintenance work or to 

i,. observe the ope rat ion of the roll motor (Tr. 25, 41, 8 7, 89). 

I 

]) 57.9-22 Mandatory. Berms or guards shall be provided on the outer 

bank of elevated roadways. 

2/ 57.14-1 Mandatory. Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons shall be guarded • 

. · 

3627 

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5. The hazard is that a miner could be seriously or fatally injured if 

they fell into the pinchpoint. 

Respondent argues that the area near the roll motor was not a working 

area or near a frequently used walkway. This fact, however, does not 

eliminate the possibility that a miner in the area doing maintenance work or 

for any other reason, could fall into the pinchpoint and be severely 

injured. 

Accordingly, I affirm the citation. 

Citation 379253 

Petitioner charged respondent with another violation of 30 CFR 

57.14.1. The evidence was conflicting. I find the following facts to be 

credible: 

1. The v-belt pinchpoint on the number one willow motor was not 

guarded (Tr. 26). 

2. The willow motor is located 15 feet above the floor and 10 - 12 

feet above a workdeck (Tr. 88). 

3. To get to the pinchpoint a miner would have to climb up the frame 

that holds the motor and onto the motor itself (Tr. 88, 89). 

The standard requires that moving machine parts be guarded if they can 

be contacted by someone. It is difficult to visualize how a miner could 

come in contact with a pinchpoint that is at the very least ten feet above 

the floor. Petitioner failed to prove that a miner could be exposed to this 

unguarded pinchpoint. Accordingly, the citation should be vacated. 

ASSESSMENT OF PENALTY 

Respondent contests the amount of the penalties as proposed by MSHA. 

Having reviewed the Secretary's criteria upon which the penalty was proposed 

and the record, I find that there is no evidence to support MSHA's 

calculation of respondent's history of violations. Accordingly, the 

penalties for citation nos. 379251 and 379252 should be reduced. Further, 

considering all the criteria in 30 U.S.C. 820(i) I assess a penalty of 

.$ 75 for each violation. 

ORDER 

Based on the foregoing findings of fact and conclusions of law, I enter 

the following order: 

Respondent's motion to dismiss is denied. Citation No. 379253 and the 

proposed penalty are vacated. Citation Nos. 379251 and.379252 are affirmed 

and a penalty of $75.00 is assessed for each. 

3628 
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Distribution: 

Mildred L. Wheeler, Esq., Office of the Solicitor., 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

H. R. Gannan, Esq. Attorney at Law 

635 North Craycraft 

Tucson, Arizona 85711 

3629 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 DEC 1 6 1980 

CIVIL PENALTY PROCEEDING 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

DOCKET NO. CENT 80-92-M 

Petitioner, 

v. MSHA CASE NO. 39-00055-05021 H 

HOMESTAKE MINING COMPANY, 

MINE: Homestake Mine 

Respondent. 

DECISION 

Appearances: 

James Barkley, Esq., Office of the Solicitor, 

U. S. Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294, 

for the Petitioner 

Robert A. Amundson, Esq., 

215 West Main 

Lead, South Dakota 57754, 

for the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Petitioner seeks an order assessing a civil monetary penalty against 

the respondent for its alleged violation on July 12, 1979, of 30 C.F.R. 

57.3-201. The cited regulation was issued under authority of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq~ (1978). 

In connection with the citation, the MSHA inspe.ctor issued awitiidrawal 

order and alleged on the citation, inter alia, that in the 4400 foot main 

ledge header area there were fresh signs that the back and ribs were taking 

pressure, including fresh cracks. The citation and order attached to the 

petition show that they were terminated July 17, 1979. 

The respondent denies in its answer that the condition alleged violated 

the standards cited and if there was any ground support problem, the normal 

mining sequence would have corrected it. 

1/ Mandatory. Ground support shall be used if the operating experience of 

the mine, or any-particular area of the mine, indicates that it is 

required. If it is required, support, including timbering, rock 

bolting, or other methods shall be consistent with the nature of the 

ground and the mining method used. 

3630 

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FINDINGS OF FACT 

1. The area of the mine which was inspected by an MSHA inspector and 

which gave rise to the issuance of the citation in question is referred to 

as the 4400 foot main ledge and 3 winze corner (Tr. 5, Exh. P-1). 

2. The 3 winze is a shaft that runs from the 4100 foot level to the 

5000 foot level and is used as a secondary escape way (Tr. 5). 

3. Tracks for the main haulage way on the main ledge at the 4400 foot 

level lead to a "Y": the fork to the left leading to the chute and manway 

to which ore is hauled; the fork to the right leading to the waste dump area 

where rock which is too low in grade to be processed is taken; and continuing directly through the middle of the "Y", the track leads to the 3 

winze. (Tr. 6, Exh. P-1). 

4. There had been no mining done in the area described for approximately 15 years (Tr. 181). 

5. The ground support used in the described area subject to the 

citation included timber, rail sets, shot crete, rock bolt and a cement 

pillar (Exh. P-1 through P-9). 

ISSUE 

The issue is whether or not the support was consistent with the nature 

of the ground and the mining method used. 

DISCUSSION AND CONCLUSIONS 

The MSHA inspector testified that the second sentence of 30 C.F.R. 

57.3-20 was violated by the respondent. That sentence states as follows: 

"If it is required, support, including timbering, rock bolting, or other 

methods shall be consistent with the nature of the ground and the mining 

method used." 

In the opinion of the inspector, the area in question was not being 

adequately supported for the amount of stress it was taking. He based this 

conclusion on his observations, including the following: a vertical support 

post which was split vertically at the top and an adjoining horizontal cross 

member which was loose on one· end (Tr. 11); rail sets which were sinking 

into a supporting wooden slab (Tr. 17); a rock weighing between one and two 

tons which was protruding from the roof of a six-foot drift and was 

·supported by rock bolts attached to a plate at the bottom of the rock 

(Tr. 19, 224); some cracks in the roof which "appeared" to be fresh 

(Tr. 27); and some shot crete which had peeled off the ribs.2(Tr. 30). 

The observations of the inspector were supported by the testimony of 

three employees of the respondent. 

l/ Shot crete is a mixture of a type of concrete and water which is forced 

through air pressure onto rocks or timber (Tr. 30). 

3631 

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In regard to the shot crete, the inspector stated that he "surmised" 

that it was pressure on the rocks that caused the shot crete to peel, but he 

also stated that it might not have been properly applied. The inspector 

further testified on cross-examination that blasting in the area could cause 

the shot crete to peel. 

A witness for the petitioner stated on cross-examination that the 

protruding rock had ground support and had to be blasted down. He further 

testified that since the rock was located low in the drift, the plate on the 

bottom could be "pulled off by hitting". Thus, the problem with the 

protruding rock was the hazard presented by its location and not that the 

method used for its support was inconsistent with the nature of the ground 

in the area. 

The respondent's evidence shows that the post which was split and the 

loose horizontal timber observed by the inspector was a 11 tie". The witness 

defined a tie as timber used to spread other timber apart and not used to 

support any weight. Thus, the respondent contends that it was not used for 

purposes of ground support. 

An employee of the respondent who had worked in the area in question 

for several.years testified that after the citation was issued, the rail 

sets were removed, new posts were set, and the rails were then put in 

horizontal to the cap in the timber line. By raising the rail sets an 

additional three to four inches clearance was gained, but no additional 

ground support was provided by the procedure. 

The evidence is also in dispute as to whether or not there were any 

fresh cracks in the area. The petitioner's witnesses testified that there 

were fresh cracks and old cracks in the area. The respondent's witnesses 

testified that they saw no fresh cracks ~nd this included a witness who 

accompanied the inspector at the time of the inspection. These witnesses 

testified that there were some cracks in the area, but they were of long 

duration and unchanged. I find the evidence inconclusive on this point. 

Out of approximately 100 stopes at the respondent's mine, only three or 

four were "timber stopes", including the area covered by the citation at 

issue. A witness for the respondent testified that more care had to be 

taken with a timbered stope because of the problem of "taking weight". 

However, the evidence did not show that the support used by the respondent 

was inconsistent with the nature of the ground. 

I conclude that the evidence presented by the petitioner falls short of 

proving the violation of the cited regulation by a preponderance of the 

evidence. 

The petitioner's evidence does not show that support consistent with 

the nature of the ground and mining method was not being used by the 

respondent. On the contrary, the evidence showed that in the normal 

sequence of operations in the area in question, the respondent replaces 

timbers that deteriorate, installs additional timbers and rock bolts, and 

utilizes shot crete. In fact, several days before the inspection, a work 

order had been submitted to perform ground support work in the area, 

including rock boltirig (Tr. 300, 301, 302). 

3632 


consolidated proceeding 1/ was held on October 16, 17, and 18, 1979, in 

Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The hearing had not been completed at the end of the 

day on October 18, 1979. 

The hearing was scheduled to be reconvened on March 18, 1980, but, at 

the request of MSHA's counsel, was thereafter continued to be reconvened on 

July 29, 1980. At the request of respondent's counsel, the hearing was again 

continued to August 5, 1980. Thereafter, counsel for MSHA advised me that the 

parties had settled all issues which had not been the subject of the hearing 

held in 1979. Consequently, this decision will dispose of all contested 

issues which were the subject of the hearing held in 1979 and will grant 

the motion for approval of settlement which was filed by MSHA's counsel on 

October 15, 1980, with respect to all issues other than those which were the 

subject of the 1979 hearing. 

Several inspectors appeared as witnesses at the hearing held in 1979. In 

order that the inspectors' 'time could be used to maximum advantage, MSHA's 

counsel introduced evidence with respect to all notices of violation or citations which had been written by a given inr.pector irrespective of whether the 

notices of violation or citations written by a given inspector were the subject of more than one Petition for Assessment of Civil Penalty in more than 

one docket number. Therefore, the Petitions for Assessment of Civil Penalty 

filed in Docket Nos. PIKE 78-308-P, PIKE 79-77-P, and PIKE 79-99-P will be 

considered in this decision under both contested and settled issues. The 

Petitions for Assessment of Civii Penalty filed in Docket Nos. PIKE 78-451-P, 

PIKE 78-458-P, and KENT 79-1 will be disposed of entirely in the portion of 

this decision which is devoted to the contested issues considered at the 

pearing held in 1979. 

The dates of filing and the number of violations alleged in each Petitio~ 

for Assessment of Civil Penalty are listed in the following tabulation: 

Docket Nos. 

PIKE 78-308-P 

PIKE 78-451-P 

PIKE 78-458-P 

PIKE 79-25-P 

PIKE 79-50-P 

PIKE 79-77-P 

PIKE 79-99-P 

KENT 79-1 

Dates of Filing 

April 24, 1978 

August 28, 1978 

August 29, 1978 

November 15, 1978 

December 6, 1978 

January 17, 1979 

February 2, 1979 

June 15, 1979 

Number of 

Alleged Violations 

12 

1 

17 

20 

2 

7 

4 

1 

1/ The original hearing in October of 1979 involved nine cases. Six additional cases were added after the initial hearing was held. The six cases 

which were consolidated subsequent to October 1979 were in Docket Nos. KENT 

79-151, KENT 80-28, KENT 80-31, KENT 80-32, KENT 80-33, and KENT 80-68. 

3635 
KENT 79-125 

KENT 79-151 

KENT 80-28 

KENT 80-31 

KENT 80-32 

KENT 80-33 

KENT 80-68 

Total Alleged 

May 30, 1979 

July 9, 1979 

April 7, 1980 

April 7, 1980 

April 7, 1980 

April 7, 1980 

April 1, 1980 

Violations in This Proceeding 

CONTESTED ISSUES 

.... 

8 

1 

2 

17 

4 

6 

7 

109 

Evidence at the hearing was completed with respect to 27 alleged viola-

• tions and, because of the unavailability of a witness, counsel for MSHA asked 

that the Petition for Assessment of Civil Penalty filed in Docket No. PIKE 

78-458-P be dismissed to the extent that it seeks assessment of a penalty 

for the violation of section 75.400 alleged in Notice of Violation No. 3 VEH 

(7-50) dated August 1, 1977 (Tr. 119). 

The issues raised in civil penalty proceedings are whether any violations of the mandatory health and safety standards occurred and, if so, what 

monetary penalties should be assessed, based on the six criteria set forth in 

· section llO(i) of the Act. It is usually possible to make a general consideration as to some of the criteria. In this proceeding, one set of findings 

may be made as to the criteria of the size of respondent's business, the 

question of whether the payment of penalties would cause respondent to discontinue in business, the matter of whether respondent demonstrated a good faith 

effort to achieve rapid compliance after notices of violation, citations, and 

orders were written, and respondent's history of previous violations. 

The size of respondent's business and the question of whether payment of 

penalties would have an adverse effect on respondent's ability to continue in 

business will first be considered. Little Bill Coal Company, Inc., is owned 

by two men named John McGuire and Bill Leslie. The company's name, Little 

Bill Coal Company, was conceived by reference to Mr. Bill Leslie who happens 

to be small in stature. 

The company has operated several mines at various times. The No. 2 Mine 

was operated until about October 1978 when it was closed because all of the. 

coal reserves had been exhausted (Tr. 65). When the No. 2 Mine was producing 

at its peak, the mine employed about 14 persons on two shifts. The equipment 

used in the mine consisted of a continuous-mining machine, two shuttle cars, 

two roof-bolting machines, and conveyor belts (Tr. 37). 

The No. 3 Mine was operated for only a short period of time. The owners 

say that a total of 115 MSHA inspectors examined the No. 3 Mine over a period 

of 41 days with the result that the mine had to be closed (Tr. 66). The 

owners alleged that they had an altercation with a first cousin of a supervisory inspector employed by MSHA and that their No. 3 Mine was excessively 

inspected for the sole purpose of causing the company to stop mining coal 

(Tr. 774-775). 

3636 
f. 

' 

The No. 4 Mine has been a disappointment because it encountered a coal 

seam which is only about 20 inches high. As a result, that mine was subleased to some other miners who have been producing.about 50 or 60 tons per 

day. Respondent agreed to pay them $15 per ton for the coal they produced 

and respondent also agreed to pay the electric power bill, provide insurance, and furnish an end loader for the loading of their coal (Tr. 772). 

In 1976, Little Bill Coal Company was a relatively successful operation 

which sold about 90,000 tons of coal for which it received a gross income of 

$2,169,887. Respondent's income tax return, however, shows that the company's 

costs were $2,209,017 which produced a loss of $39,130. Nevertheless, in 

1976, the owners were able to pay themselves a total of $172,000 in salaries, 

or $86,000 each (Tr. 706-707; Exh. F). In 1977, the company had a gross 

income of $1,035,377 and its expenses were $1,040,149 with a resulting lo·ss 

of $3,371. In 1977, the owners were able to pay themselves total salaries of 

$128,000 or $64,000 each (Tr. 719; Exh. G). 

The company's business continued to decline after 1977 so that by the 

11 months ending August 31, 1979, the company had lost a total of $266,706 

or $6.23 for each ton of coal produced. During the single month of August 

1979, the company lost $6,369 despite the fact that the owners paid themselves no salary at all that month. It is true that during the preceding 

10 months, the owners had paid themselves total salaries of. $80,000, or 

$40,000 each, but during that same period of time, Mr. Leslie had had to 

advance the company $105,000 from his personal funds and' Mr. McGuire 

loaned the company $108,000 from his personal funds. Mr. McGuire had to 

mortgage his personal residence for $80,000 in order to loan the company 

$108,000 (Tr. 753; Exh. I). 

Based on the facts set forth above, I find that respondent operates a 

very small business at the present time and that payment of penalties will 

have an adverse effect on its ability to continue in business. 

The evidence introduced at the hearing with respect to each alleged violation indicates that respondent abated the violations within the time given 

in the inspectors' notices of violation or citations. There is no testimony 

by any inspector indicating that respondent failed to make a good faith effort 

to achieve compliance. Therefore, I find that respondent did make a normal 

good faith effort to achieve compliance and, in the assessment of penalties, 

credit for that mitigating factor will be given. 

During the hearing held in 1979, MSHA introduced 72 exhibits, but none 

of those exhibits provided any information with respect to the criterion of 

history of previous violations. The attorney who represented MSHA at the 

hearing held in 1979 resigned between the time that the 1979 hearing was held 

and the time that the 1980 hearing was scheduled to commence. The attorney -

who was assigned to represent MSHA at the 1980 hearing submitted, prior to the 

convening of the supplemental hearing, proposed Exhibit Nos. 72A through 196. 

Two of those proposed exhibits, Nos. 72A and 143, are computer printouts 

showing prior violations for which respondent has paid penalties. 

3637 

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I have examined proposed Exhibit Nos. 72A and 143 and those exhibits show 

that respondent has violated the same sections of the regulations involved in 

this proceeding on from none to nine previous occasions. Two types of violations which I consider to be especially serious are section 75.400 which pertains to the accumulation of combustible materials and section 75.200 which 

concerns violations of a respondent's roof-control plan. Respondent's 

largest number (nine) of previous violations is of section 75.400, but the 

trend in those violations has been downward from six in 1976 to one in 1977 

by October 3, 1977. Respondent has violated section 75.200 on two previous 

occasions, but the trend in those violations is also downward from two in 1975 

to none in 1977 by July 15, 1977. 

_ It is my practice to consider an operator's history of previous violations on an individual basis when assessing each penalty, but in this proceeding, since the criterion of the effect that payment of penalties will have on 

respondent's ability to continue in business is the overriding consideration 

in the assessment of each penalty, I am finding, in the circumstances which 

exist in this proceeding, that no useful purpose would be achieved by giving 

individual consideration to the criterion of history of previous violations 

because that history is not substantial in the first instance and would, in 

final analysis, have little effect on the ultimate penalty to be assessed 

because I would, in the circumstances of this case, merely reduce the amount 

of a given penalty assessed under the other five criteria so as to allow for 

the assessment of a minor amount under the criterion of history of previous 

violations. 

There is one other important reason for not giving individual consideration to the criterion of history of previous violations. That reason relates 

to the fact, as stated above, that no evidence as to the criterion of history 

of previous violations was presented by MSHA's counsel during the hearing held 

in 1979. If the supplemental hearing had gone forward in 1980 as scheduled, 

the proposed exhibits which I have referred to in discussing respondent's 

history of previous violations would have been offered in evidence at a hearing where respondent's counsel could, if he had beert so inclined, have 

objected to the receipt in evidence of such evidence and could, if he had 

been so inclined, have introduced evidence with respect to the criterion of 

history of previous violations. Inasmuch as that criterion was not the subject of any evidence at the hearing held in 1979, it would be unfair to 

respondent for me to consider proposed exhibits, submitted after the 1979 

hearing, for the purpose of assessing penalties with respect to contested 

issues which are being decided on the basis of evidence presented by the 

parties at a hearing during which neither party introduced any evidence whatsoever with respect to the criterion of history of previous violations. 

In the portion of this decision which follows, I shall give individual 

consideration to the evidence presented by both MSHA and respondent for the 

purpose of determining whether each alleged violation occurred. If I hereinafter find that violations have occurred, I shall give individual consideration to the remaining two criteria of gravity and negligence and shall assess 

penalties on the basis of those two criteria and the findings made above as 

to the other four criter_ia. 

3638-
any leaks in the hydraulic hoses, did not know what the operator's cleanup 

plan was, and did not know how long the accumulations had existed (Tr. 121-

138). The operator had a regular cleanup program under which the equipment 

was washed down with a high pressure hose twice a week and the operator agreed 

that some accumulations could occur within a 2-day period between cleanups 

which were performed on the maintenance shift between midnight and 8 a.m. 

(Tr. 421-430). 

Conclusions. At the time the testimony and exhibits in this proceeding 

were received in evidence, the elements of evidence required to prove a violation of section 75.400 were those which the former Board of Mine Operations 

Appeals had set forth in Old Ben Coal Co., 8 IBMA 98 (1977). In the interim 

between the receipt of evidence in this proceeding and the rendering of this 

decision, the Commission issued its decision in Old Ben Coal Co., 1 FMSHRC 

1954 (1979), reversing the former Board's Old Ben decision and holding that 

combustible accumulations must be prevented from occurring and declaring that 

a violation of section 75.400 does not depend upon the question of whether the 

operator cleans up a given accumulation within a reasonable period of time. 

I am not in doubt about the fact that I must follow Commission precedents 

which become effective between the receipt of evidence and the time I render 

a decision based on that evidence because I was reversed for failing to do 

so in C.C.C.-Pompey Coal Co., 2 FMSHRC 1195 (1980). 

Since the operator was unable to present a witness who had personally 

examined the shuttle car on the day the violation was cited, I find that the 

accumulation described by the inspector existed and was moderately serious. 

There was a low degree of negligence since the accumulation had occurred in 

a short time between the operator's biweekly cleanings. In view of the operator's small size and difficult financial condition; a penalty of $15 will be 

assessed for this violation of section 75.400. 

Notice No. 2 EDF (7-64) 10/12/77 § 75.400 (Exhibit 4) 

Findings. The only difference between the violation of section 75.400 

alleged in Exhibit 4 and the violation of that section alleged in Exhibit 1 

is that the combustible materials had accumulated on the standard-drive 

Joy 21 shuttle car instead of the off-drive shuttle car. Since the witnesses 

agreed that the same circumstances prevailed for the two violations of section 75.400, I find that the violation was moderately serious, that there 

was a low degree of negligence, and a penalty of $15 will also be assessed 

for this violation of section 75.400 (Tr. 140-145; 431-434). 

Notice No. 3 EDF (7-65) 10/12/77 § 75.503 (Exhibit 7) 

Findings. Section 75.503 re·quires each operator to maintain. equipment 

used inby the last open crosscut in a permissible condition. Respondent 

violated section 75.503 because two bolts were missing from the footcontrol switch of the standard-drive Joy 21 shuttle car. The violation was 

moderately serious because no methane had ever been detected in respondent's 

No. 2 Mine either with a hand-held methane detector or by analysis of a 

3641 

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bottle sample of air obtained in the mine atmosphere. Respondent was negligent for failing to replace the bolts, but there is no way to know whether 

the violation occurred between the weekly inspections of electrical equipment (Tr. 149-157). 

Conclusions. Respondent's witness testified that the cover fits so 

tightly over the foot-control switch that he thinks it would be permissible 

even with all four bolts missing. (Tr. 435), but he stated that he did not 

personally inspect the shuttle car after the notice of violation was written 

(Tr. 439). Since respondent could present no evidence showing that the cover 

was still in a permissible condition on the day the notice was written, I 

conclude that the preponderance of the evidence supports a finding that the 

violation occurred. Since the circumstances as to gravity and negligence for 

this violation are the same as they were for the previous violations of section 75.400, a penalty of $15 will also be assessed for this violation of 

section 75.503. 

Notice No. 5 EDF (7-67) 10/12/77 § 75.400 (Exhibit 11) 

Findings. The inspector alleged that coal dust and oil had accumulated 

on the roof-bolting machine to the same degree that he. had observed such 

accumulations on the two shuttle cars described above. The operator violated section 75.400 by failing to keep the combustible materials off the 

roof-bolting machine. The violation was moderately serious and there was a 

low degree of negligence (Tr. 158-172). 

Conclusions. The primary difference between the inspector's testimony 

with respect to the accumulations on the roof-bolting machine, as opposed to 

those on the two shuttle cars previously considered, is that the inspector 

stated that in his opinion, the accumulations had occurred over a period of 

at least 1 week (Tr. 168-172). Respondent's witness testified that the roofbolting machine was cleaned twice a week, but since the inspector did not 

inquire into the operator's cleanup program, there is no evidence to cast 

any doubt on respondent's claims (Tr. 443-445). On the other hand, respondent's witness did not personally inspect the roof-bolting machine on the day 

the notice was written and could not say for certain that the roof-bolting 

machine was free of accumulations of combustible materials (Tr. 446). Inasmuch as the evidence fails to show that this violation of section 75.400 was 

serious or that respondent had failed to comply with its cleanup program, I 

shall assess a penalty of $15 for this violation of section 75.400. 

Notice No. 6 EDF (7-68) 10/12/77 § 75.807 (Exhibit 14) 

Findings. Section 75.807 requires, among other things, that all underground high-voltage cables be guarded where miners are required to work. 

Respondent violated section 75.807 because a 4,160-volt cable transmitting 

power to a transformer was looped beside the transfotmer and lying on the 

mine floor where a miner would have to step over it to plug or unplug circuit 

breakers used for energizing equipment. The violation was serious because 

such cables are subject to blowing up for no apparent reason. Respondent 

3642 
was negligent for failing to place the cable in a protected place where 

miners, including the mine foreman and electrician, would not have to step 

over the cable to get to the transformer (Tr. 173~189). 

Conclusions. Respondent's witness inspected the cable at the time Notice 

No. 6 EDF was written and agreed that the cable had been looped beside the 

transformer as shown on Exhibit 15A (Tr. 446). Although respondent's witness 

said that a person could get around the cable without stepping over it, he 

said that the transformer is 8 feet wide and 34 feet long and fills up most of 

a 20-foot entry when the cable is attached (Tr. 456). Respondent's witness 

also stated that he was not afraid to step over the cable or handle it with 

·gloves (Tr. 451). The fact that respondent's witness is not afraid of the 

cable does not prevent it from being a source of danger. Respondent's witness 

also emphasized the fact that the type of cable cited in Notice No. 6 EDF has 

two ground wires, a monitoring wire, and an individual ground for each of the 

three phases as well as shielding tape (Tr. 452). 

I do not think that any of the facts stated by respondent's witness 

justify respondent's failure to guard the high-voltage cable or place it in a 

less hazardous position than it was placed when the notice was written. Since 

this was a serious violation and was associated with a fairly high degree of 

negligence, I believe that a penalty of $25 should be assessed for it despite 

respondent's difficult financial position. 

Notice No. 8 EDF (7-70) 10/12/77 § 75.507 (Exhibit 21) 

Findings. Section 75.507 requires the operator to place all nonperm:issible power connection points in intake air if they are located outby the 

last open crosscut. Respondent violated section 75.507 because its 4,160-volt, 

nonpermissible transformer was situated in return air. The violation was 

moderately serious because the hazard involved is that a combustible amount 

of methane might accumulate in the return air passing over the transformer 

and cause an explosion. Inasmuch as no methane has ever been detected in 

respondent's mine, the li~elihood of an explosion was less than it would 

have been in a mine which is known to liberate methane. The violation was 

associated with a high degree of negligence (Tr. 205-210). 

Conclusions. Respondent's defense was presented by Mr. Leslie who stated 

that he entered the mine on the evening shift after Notice No. 8 EDF had been 

issued on the day shift. Mr. Leslie testified that the transformer was situated in a crosscut and that a curtain had been installed between the transformer and the return entry (Tr. 461). The inspector testified on rebuttal 

that he would not have cited a violation if the curtain had existed at the 

time he examined the transformer (Tr. 464). Mr. Leslie thereafter testified 

that it was possible that the curtain was installed between the time that he 

entered the mine and the time the violation was cited by the inspector (Tr. 

467). The difference in time between Mr. Leslie's and the inspector's examination is also an explanation for the fact that Mr. Leslie claims the transformer was not moved between the time the violation was cited and the time 

it was abated, whereas the inspector contended that the violation was abated 

by the movement of the transformer into intake air. 

3643 

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The factors I have just given show that there was no inconsistency in the 

two witnesses' testimony if consideration is given to the difference in time 

of the two inspections. There was a greater degree of negligence in this 

instance than in most of the previous violations. Therefore, a penalty of 

$20 will be assessed for this violation of section 75.507. It should be borne 

in mind that the low penalties I am assessing are based to a very large extent 

on the criterion that payment of penalties would cause respondent to discontinue in business. 

Notice No. l EDF (7-71) 10/13/77 § 75.1725 (Exhibit 24) 

Findings. Section 75.1725 requires, among other things, that an operator 

111aintain mobile and stationary equipment in a safe operating condition and 

that any unsafe equipment must immediately be removed from service. Respondent violated section 75.1725 because the covers on the transformer were 

bent sufficiently to expose internal wires and all bolts designed to hold 

the covers in place were missing. The violation was only moderately serious 

because the insulation on all wires was in good condition and the covers 

were recessed into the transformer's side to such an extent that a person 

would be unlikely to come into contact with the exposed insulated wireso 

There was a high degree of negligence in respondent's failure to keep the 

covers properly bolted (Tr. 213-221). 

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~I ~ Conclusions. A great deal of testimony was presented by respondent ~ 

through its witness, Hr. Leslie, but when the testimony is analyzed~ it all i 

boils down again to the fact that Mr. Leslie examined the transformer on the j 

night shift, whereas the inspector examined it and wrote the notice of viola- 4 

tion on the day shift. The inspector stated that all bolts were missing from t 

the two bent covers or panels when he examined them, whereas Mr. Leslie testi- 1.·. 

fied that only two of the six bolts in the panels were missing when he examined 

the panels (Tr. 505). Mr. Leslie agreed that it would have been possible for 

an electrician to have installed four bolts on each panel so as to pull them 

back into place between the time that the inspector cited the violation and 

the time Mr. Leslie examined the transformer (Tr. 476; 504). It must be 

borne in mind that the panels were only slightly bent and installation of the 

bolts would have drawn them down so as to reveal no indication that they had 

been bent as they appeared at the time the notice of violation was written. 

In view of Mr. Leslie's statement that the transformer cost $50,000, it 

is easy to understand why an employee would want to conceal from Mr. Leslie 

the fact that he had abused two of the panels sufficiently to bend them. 

When all the evidence is carefully examined, it appears that the violation 

here cited was very minor in nature and may have consisted solely of a failure of the electricians to replace the bolts when they were working on the 

transformer. That kind of carelessness should be discouraged because it can 

lead to other and more serious violations than the one here involved. In 

such circumstances, and in view of respondent's difficult financial condition, a penalty of $5 will be assessed for this violation of section 75.1725. 
the criterion of negligence. There was a relatively high degree of negligence, so a penalty of $15 will be assessed for this violation after giving 

considerable weight to respondent's difficult financial condition. 

Notice No. 4 EDF (7-80) 10/20/77 § 75.516-2 (Exhibit 48) 

Findings• Section 75.516-2 requires that communication wires be supported on insulated hangers or insulated J-hooks. Respondent violated section 

75.516-2 because the communication wires were entangled with the fire-sensor 

cable and belt-control cable. The violation was potentially serious because 

if the insulation on the 110-volt control cable had been defective and had 

happened to touch the communication wire at a place where the insulation 

was also defective, a person handling the phone might be shocked because 

of energy from the control wire being transferred to the communication wire. 

Respondent was negligent for failing to have all the wires separated and 

installed on their own insulated hangers (Tr. 375-387). 

Conclusions. Mr. Leslie testified that respondent's communication wires 

carried only 12 volts from two batteries and that the sensor cable also 

carried only 12 volts from two batteries, but he agreed that a potential 

shock existed if the communication wire had come into contact with the control wire which carried 110 volts. There was only a remote possibility of 

shock in this instance because all wires were well insulated (Tr. 377; 568-

569; 572). Here again, the penalty to be assessed should be done primarily 

under the criterion of negligence because there was little gravity involved, 

but there is always a potential for injury and it existed here because of the 

negligence of respondent to see that the wires were properly placed on insulators. Therefore, a penalty of $15 will be assessed, keeping in mind respondent's poor financial condition. 

Notice No. 7 EDF (7-69) 10/12/77 § 75.200 (Exhibit 17) 

Findings. Respondent's roof-control plan requires that roof bolts be 

installed on 4-foot centers (Exh. lB, p. 9). Respondent violated section 

75.200 because roof bolts in the No. 1 and No. 2 pillar splits had been 

installed from 4-1/2 to 6 feet apart for a distance of about 20 feet. In 

this instance, the violation did not expose the miners to any serious danger 

as the roof appeared to be in good condition, but there existed the potential 

of a rock falling between roof bolts which were up to 2 feet wider than the 

plan permitted. There was a high degree of negligence because the inspector 

said that respondent frequently installed roof bolts farther apart than the 

4-foot spacing required by the roof-control plan (Tr. 190-203). 

Co.1clusions.. Respondent's witness, Mr. McGuire, testified that he was 

present in the mine on the day Notice No. 7 EDF was written because he had 

gone into the mine for the purpose of replacing the pump motor on the 

continuous-mining machine. Mr. McGuire says that he measured the distance 

between the bolts with a 42-inch stick which they kept on the roof-bolting 

machine and that he found about 10 or 12 bolts to be about 44 inches apart 

(Tr. 578) 

3651 

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Both the inspector and Mr. McGuire agreed that the continuous-mining 

machine was broken down and was being repaired. The inspector found it necessary to extend the time for compliance because it was not possible for the 

roof-bolting machine to pass by the inoperative continuous-mining machine for 

the purpose of installing additional bolts (Exh. 19). The inspector eventually terminated the notice of violation when he was told that they bad withdrawn from the pillar split cited in his notice. The inspector stated that 

he did not go back to check the area cited in his notice because he agreed 

that no bolts needed to be installed in an area where no further mining would 

be done (Tr. 196-198). Mr. McGuire testified that they completed mining of 

coal in the area after the continuous-mining machine was repaired and that 

they did not install any additional roof bolts because they did not need to 

do so (Tr. 577). 

Once again, I find that the inspector's testimony is more credible than 

Mr. McGuire's because Mr. Puckett, the mine foreman, was with the inspector 

when the inspector made his measurements and all discussions about the abatement of the violation were with Mr. Puckett rather than with Mr. McGuire. 

Additionally, Mr. McGuire stressed in his testimony the difficulty he was 

having replacing the pump motor. The inspector stated that Mr. McGuire continued to work on the continuous-mining machine all the time the inspector 

was examining the section (Tr. 195). As interested as Mr. McGuire was to 

restore the continuous-mining machine to operation, it is unlikely that he 

would have taken out time from that important matter to check the distance 

between roof bolts and if he had, his statements in this proceeding have 

shown that he would have hotly contested an inspector's claim that roof 

bolts had been installed excessively wide apart if, in fact, they bad not 

been so installed. 

As the inspector testified, rocks may fall from the area between roof 

bolts when they are installed on an excessively wide spacing, but in this 

instance, the violation appears to be moderately serious since the inspector 

did not observe any obviously bad roof. There was a high degree of negligence 

because respondent has previously been cited for installing roof bolts on a 

wider spacing than its roof-control plan permits (Tr. 197; Exh. 18). In such 

circumstances, a penalty of $50 is warranted, keeping in mind respondent's 

difficult financial condition. 

Docket No. PIKE 78-308-P 

Notice No. 3 EDF (7-40) 7/15/77 § 75.326 (Exhibit 51) 

Findings. Section 75.326 requires that return air courses be separated 

from belt haulage entries. Respondent violated section 75.326 because there 

were holes ranging from 1/3 of an inch to 2 inches in length in three pe.rmanent stoppings located outby spad No. 5162 (Tr. 389). The violation was only 

moderately serious because it was not proven that the holes extended all the 

way through the stoppings and no methane has been detected in respondent's 

mine. The inspector did not take either a methane reading or a bottle sample 

of air to check for methane on the day the notice was written (Tr. 392; 396-

399). There was a low degree of negligence because both sides of the cinder 

3652 
Since the violation was very serious and there was a rather high degree 

of negligence, a penalty of $100 will be assessed for this violation of section 75.400, bearing in mind respondent's difficult financial condition. 

Order No. 65862 3/15/78 § 75.1725 (Exhibit 57) 

Findings. Order No. 65862, discussed above, also alleged a violation of 

section 75.1725 which provides that machinery and equipment shall be maintained 

in a safe operating con4ition and that equipment in an unsafe condition shall 

be removed from service immediately. Respondent violated section 75.1725 

because the stuck rollers, float coal dust, and loose coal along the conveyor 

belts had created unsafe conditions, but the conveyor belts were being used 

for producing coal despite the fact that they were exposing the miners to a 

possible fire or explosion because of the stuck rollers and undue amount of 

combustible materials which existed along and under them (Tr. 823; 861). 

Conclusions. The violation of section 75.1725 is interrelated with the 

violation of section 75.400. I frequently have cases in which violations of 

section 75.400 are cited and the inspectors state that they also found stuck 

rollers which produce an ignition hazard. The ignition hazard is taken into 

consideration under the criterion of gravity-in assessing a penalty for the 

violation of section 75.400. All inspectors could technically cite a violation of section 75.1725 every time they find stuck rollers, but it has been 

my experience that they rarely cite section 75.1725 in conjunction with 

stuck rollers associated with loose coal and coal-dust accumulations. Since 

I have taken the gravity of the violation of section 75.1725, having to do 

with stuck rollers, into consideration in the assessment of the penalty for 

the violation of section 75.400 also cited in Order No. 65862, I believe 

that the additional violation of section 75.1725 should not be given an 

incrementally high penalty. In such circumstances, a penalty of $5 will be 

assessed for this violation of section 75.1725, bearing in mind respondent's 

difficult financial condition. 

Order No. 65862 3/15/78 § 75.1101-1 (Exhibit 57) 

Findings. Order No. 65862, discussed above, also alleged a violation of 

section 75.1101-1 which provides that deluge-type spray systems shall be 

installed at main and secondary belt-conveyor drives. Such sprays become 

operative when there is a rise in temperature great enough to cause a fire 

sensor to activate a control valve. Respondent violated section 75.1101-1 

because the deluge-type spray system at the No. 3 conveyor-belt drive was 

rendered inoperative by disconnection of the chain and sensors which cause 

the control valve to open. Additionally, some of the water sprays were 

broken (Tr. 825). The violation was serious because combustible materials 

were present in the vicinity of the No. 3 belt head and the deluge-type 

spray system would not have assisted in putting out any fire which might 

have occurred (Tr. 828; 861). There was a high degree of negligence because 

the preshift examiner should have observed that the chain to the valve was 

disconnected or broken with the result that the deluge-type water system 

would not work if needed (Tr. 826). 

3655 
Conclusions. Respondent's witness, Mr. McGuire, stated that the firesuppression system and chain controlling the valve were connected when he 

inspected the conveyor-belt drives cited in Order No. 65862 (Tr. 878). Inasmuch as Mr. McGuire was not present at the time the inspector observed the 

conditions along the conveyor belts, I conclude that the inspector's testimony is sufficiently credible to support my findings above that the violation occurred, that it was serious, and that respondent was negligent. The 

inoperative water-deluge system was taken into consideration above in 

assessing a penalty for the violation of section 75.400 cited in Order 

No. 65862. In view of the interrelated overlapping of the violations cited 

in Order No. 65862, a penalty of $25 will be assessed for this violation of 

section 75.1101-1. 

Docket No. PIKE 79-77-P 

Citation No. 65863 3/21/78 § 75.601 (Exhibit 60) ·-~ 

Findings. Section 75.601, to the extent here pertinent, provides that 

the disconnecting devices used to disconnect power from trailing cables shall 

be plainly marked and identified and that such devices shall be designed so 

that it can be determined by one's eyesight that the power is disconnected. 

The preponderance of the evidence shows that no violation of section 75.601 

occurred (Tr. 883-905). The sole action that respondent had to take to abate 

the alleged violation was to paint the female and male receptacles for each 

piece of equipment a matching color so that an illiterate person would theoretically be able to determine which circuit breaker should be connected to 

a given piece of equipment. Respondent's power center had been manufactured 

specifically for the types of equipment used in respondent's mine (Tr. 892). 

Therefore, each circuit breaker and trailing cable had already been labeled, 

before Citation No. 65863 was written, so that a person who can read would 

know which circuit breaker to connect for the continuous-mining machine, or 

roof-bolting machine, or shuttle car. Moreover, a chain was attached to each 

disconnect device so that the power for the shuttle car, for example, could 

not be plugged into the circuit for the continuous"-mining machine or roofbolting machine. Consequently, even an illiterate person would not be able 

to connect the wrong trailing cable to the wrong circuit in the power center. 

There is nothing in section 75.601 which specifically requires respondent to 

paint the disconnect devices with different colors of paint so that an 

illiterate person would be able to determine, for example, that a pink plug 

is to be connected only with a matching pink receptacle in the power center. 

Finally, since the circuit breakers for the off-drive shuttle car and the 

standard-drive shuttle car are the same size, an illiterate person would be 

unable to determine, if, for example, he were sent to the power center to 

disconnect the trailing cable for the off-drive shuttle car, whether he 

would be supposed to disconnect the circuit breaker painted blue or the 

circuit breaker painted yellow in order to be sure that he was disconnecting 

the off-drive shuttle car instead of the standard-drive shuttle car. 

. -~ 

'.\. 

' 

Conclusions. In this instance, I have chosen to accept the testimony of l 

.. , respondent's witness, Mr. Leslie, as being more credible than that of the ~ -.-5-

3656 
inspector. Mr. Leslie was with the inspector when Citation No. 65863 was 

written and Mr. Leslie's testimony shows that he is more familiar with the 

electrical equipment in the mine than"the inspector was. Mr. Leslie testified 

that it was necessary for him to purchase five different colors of paint for 

application to the disconnect devices in order to abate the citation (Tr. 

892). The inspector claimed that the disconnect devices were neither marked 

nor color-coded (Tr. 891), but Mr. Leslie claimed that the power center was 

ordered from the factory with labels for the various types of equipment 

already installed on the equipment (Tr. 893). Mr. Leslie introduced as 

Exhibit E a picture of the type of device which is used to connect equipment 

at the power center (Tr. 902). There is no reason to believe that Mr. Leslie 

was mistaken about the types of labels which he had requested the manufacturer 

to place on the disconnect devices (Tr. 894). 

It should be noted that the language used in Citation No. 65863 is 

susceptible to the interpretation of the facts given by Mr. Leslie because the 

citation alleges that the "* * * connecting plugs were not plainly marked or 

colored" (Exh. 60). Since the connecting plugs had already been plainly marked 

before the citation was written, it was necessary for the inspector to use the 

words "plainly marked or colored" in his citation in order to show that the 

conditions he observed constituted a violation of section 75.601 because the 

language in that section requires plain marking but fails to mention colorcoding. If respondent's disconnect devices had not already been plainly 

marked, the inspector could have required color-coding as one way of accomplishing the plain marking required by section 75.601, but the inspector cannot properly cite respondent for violating section 75.601 when plugs and 

receptacles have already been plainly marked, but the inspector additionally 

wants the disconnect devices painted with matching colors as a means of 

further plainly marking the disconnect devices for the benefit of illiterate 

persons who are unable to read the labels which respondent had already placed 

on the disconnect devices. 

For the foregoing reasons, the Petition for Assessment of Civil Penalty 

filed in Docket No. PIKE 79-77-P will be dismissed insofar as it alleges a 

violation of section 75.601 in Citation No. 65863 dated March 21, 1978. 

Citation No. 65864 3/21/78 § 75.503 (Exhibit 62) 

Findings. Section 75.503 requires that electrical equipment used inby 

the last open crosscut be permissible. Respondent violated section 75.503 

because an opening in excess of .005 of an inch was present between the cover 

plate at the top of the trailing cable junction box and at the bottom of the 

main panel box on the continuous-mining machine (Tr. 907). The violation 

was moderately serious because, although no methane was present at the time 

the violation was observed, it is always possible for methane to accumulate 

in a coal mine so as to ca~se an explosion (Tr. 911). There was a low 

degree of negligence because no bolts were missing and the machine vibrates 

constantly so that it may jar bolts loose. The inspector did not know how 

long the .005 of an inch opening had existed (Tr. 913). 

3657 
Conclusions. The operator's witness, Mr. Leslie, testified that he 

could not dispute the existence of the .005 of an inch opening because he 

personally observed the inspector insert· the .005 of an inch gauge into the 

opening (Tr. 917). Since the violation was moderately serious and there was 

a low degree of negligence, a penalty of $15 will be assessed for this violation of section 75.503, bearing in mind respondent's difficult financial 

condition. 

Citation No. 65865 3/21/78 § 75.503 (Exhibit 64) 

Findings. Respondent violated section 75.503 again because an opening in 

excess of .005 of an inch existed on the No. 2 Joy shuttle car between the 

cover plate and the panel box. Additionally, the headlights were inoperative 

on both ends of the shuttle car. The violation was moderately serious as to 

the opening in the panel box, but the lack of headlights on either end of the 

shuttle car was serious because the shuttle car is driven around corners and 

through crosscuts where the shuttle car becomes a hazard for miners who are 

working on the section. There was a high degree of negligence in respondent's 

permitting the shuttle car to be driven without having the lights replaced 

(Tr. 921-929). 

Conclusions. Respondent's primary defense as to the violation of section 

75.503 alleged in Citation No. 65865 was that headlights on shuttle cars glare 

in the eyes of the operator of the continuous-mining machine and consequently 

the operators of the shuttle cars do not use the headlights even when the 

lights are capable of being operated (Tr. 930-931). The inspector stated that 

the operator of the shuttle car normally turned off the light on the end next 

to the continuous-mining machine when coal was being loaded into the shuttle 

car and turned on the light on the outby end of the shuttle car so as to avoid 

blinding the operator of the continuous-mining machine. The inspector stated 

that he had driven shuttle cars while using only his cap light for illumination, as was being done in this instance, and that he felt he had less light 

than is needed to permit safe operation of the shuttle car (Tr. 928-929). 

Inasmuch as the violation was serious and there was a high degree of negligence, a penalty of $25 will be assessed for this violation of section 75.503, 

bearing in mind respondent's difficult financial condition. 

Citation No. 65866 3/21/78 § 75.503 (Exhibit 66) 

Findings. Respondent again violated section 75.503 by failing to have 

operative headlights on either end of the No. 1 Joy shuttle car (Tr. 932-933). 

Both the inspector and respondent's witness stated that their testimony with 

respect to the lack of headlights on the No. 1 shuttle car would be identical 

with the testimony they had already given with respect to the lack of headlights on the No. 2 shuttle c.ar (Tr. 933). 

Conclusions. Since this violation was identical with the previous violation as to the No. 2 shuttle car, the same findings would apply and a penalty 

of $25 should be assessed for this violation of section 75•503. 

3658 
Citation No. 65867 3/22/78 § 77.1605(a) (Exhibit 68) 

Findings. Section 77.1605(a) provides that cab windows shall be in good 

condition and shall be kept clean. Respondent violated section 77.1605(a) 

because a truck loading coal at respondent's loading chute had three or four 

cracks in the windshield on the driver's side. The violation was moderately 

serious because glares from the cracks in the windshield might have caused 

the driver to have an accident resulting from his inability to see clearly 

through the cracked windshield. Respondent was not negligent because the 

truck with the cracked windshield was used to haul one load of coal from 

respondent's mine. The truck had never been driven to respondent's mine on 

any occasio~ prior to the time the cracked windshield was observed by the 

inspector and was never used to haul coal from respondent's mine on any 

other occasion (Tr. 937-946; 947-949). 

Conclusions. The truck involved in the violation alleged in Citation 

No. 65867 was driven to respondent's mine to obtain a single load of coal. 

The circumstances were that the independent contractor's regular truck needed 

to have a tire repaired. While the tire was being repaired, the person who 

normally hauled coal for respondent asked a substitute driver to use that 

driver's own truck to transport a load of coal from respondent's mine. The 

substitute truck had the cracked windshield described in Citation No. 65867, 

but respondent was unaware that the substitute truck and driver had been 

asked to haul a load of coal from respondent's mine and respondent's owners 

were not close enough to the truck on its single visit to respondent's mine 

to know that it had a cracked windshield (Tr. 948-949). Moreover, the 

inspector terminated the citation without ever knowing whether the crack in 

the windshield was ever replaced because the citation was terminated with an 

explanation that the truck left mine property and was no longer used to haul 

coal from respondent's mine (Exh. 70). 

The Commission held in Republic Steel Corp., 1 FMSHRC 5 (1979), Kaiser 

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

Old Ben Coal Co., 1 FMSHRC 1480 (1979), and Monterey Coal Co., 1 FMSHRC 1781 

(1979), that an operator may be held liable for violations by independent contractors even if the independent contractors' employees are the only persons 

involved in a particular violation. Therefore, the inspector properly cited 

respondent for the violation of the substitute independent contractor in this 

instance because respondent would have been liable for a violation committed 

by the driver of the truck which was normally used to haul coal from respondent's mine and can be held liable for violations committed by a substitute 

driver who is hired by the independent contractor who normally hauls respondent's coal. 

In view of the fact that only one load of coal was hauled by the truck 

involved in Citation No. 65867, I think that only a nominal penalty should be 

assessed in the circumstances which prevailed in this instance. Therefore, 

a penalty of only $1 will be assessed for this violation of section 77.1605(a). 

3659 

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Docket No. KENT 79-1 

Citation No. 64600 11/16/78 § 75.1722(b) (Exhibit 71) 

Findings. Section 75.1722(b) provides that guards at conveyor-drive, 

conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient 

to prevent a person from reaching behind the guard and becoming caught 

between the belt and the pulley. Respondent violated section 75.1722(b) 

because an adequate guard had not been provided for the No. 2 conveyor belt 

~rive and discharge roller inasmuch as a person could become caught between 

the belt and pulley. The inadequate guard was located at the point where_ 

the No. 2 belt dumps coal on the No. 1 belt. Spillage of coal occurs at that 

discharge point and it is necessary for a miner to clean up the spillage. 

Therefore, the violation was serious because an inadequate guard exposes the 

miner who is cleaning up the coal to becoming caught between the belt and the 

pulley. Respondent was negligent because a chain-link fence had been erected 

around the exposed machine parts, but the guard had been taken down so that 

it provided no protection at the time the violation was observed by the 

inspector. The examiner of the belt should have noticed the absence of the 

guard and should have had it reinstalled in proper position (Tr. 951-961). 

Conclusions. Respondent's witness, Mr. McGuire, testified that he was one 

of the first persons ever to use a chain-link fence as a guard at conveyor 

belt drives, but Mr. McGuire was not present at the time Citation No. 64600 

was written and conceded that someone could have shoveled coal from under the 

belt drive and could have left the fence down. He said it was the responsibility of the person who takes the fence down to rehang it (Tr. 974; 977). It 

is respondent's duty to see that its employees comply with the safety standards, so I cannot find that respondent has a valid defense in this instance. 

Since the violation was serious and respondent was negligent, a penalty of 

$25 will be assessed for this violation of section 75.1722(b), bearing in 

mind respondent's difficult financial condition. 

SETTLED ISSUES 

The matters to be considered in this portion of my decision are discussed 

in the 47-page motion for approval of settlement filed on October 15, 1980, by 

MSHA's counsel. Under the settlement agreement, respondent would pay penalties 

totaling $4,631 instead of the penalties totaling $8,031 proposed by the 

Assessment Office. The motion for approval of settlement disposes of the 

remaining 82 violations which were not the subject 0£ the hearing held in 1979. 

The motion considers violations alleged in Petitions for Assessment of Civil 

Penalty which were filed in 12 different docket numbers. As previously indicated on page 2 of my decision, all of the violations alleged in the Petitions 

for Assessment of Civil Penalty filed in Docket Nos. PIKE 78-451-P, PIKE 

78-458-P, and KENT 79-1 were the subject of testimony introduced at the hearing held in 1979 and the issues raised in those three Petitions have been 

entirely disposed of in the first portion of this decision which deals with 

contested issues. 

3660 
c 

Also, as previously indicated on page 2 of my decision, some of the 

issues raised by the Petitions for Assessment of Civil Penalty filed in Docket 

Nos. PIKE 78-308-P, PIKE 79-77-P, and PIKE 79-99-P are partially disposed of 

in the portion of my decision devoted to the contested issues and the remainder 

of the issues raised by the Petitions filed in those three docket numbers are 

disposed of by the motion for approval of settlement. Finally, the issues 

raised by the Petitions filed in the remaining nine docket numbers involved 

in this consolidated proceeding are disposed of by the motion for approval of 

settlement. 

As to the six criteria which are used in determining penalties, it should 

be noted that my decision on the contested issues has already made findings as 

to three of 9those criteria, namely, the size of respondent's business, the 

question of whether payment of penalties would cause respondent to discontinue 

in business, and respondent's history of previous violations. The findings as 

to the aforesaid three criteria are based on the evidence received during the 

hearing held in 1979 and they are applicable to the settled issues as well as 

to the contested issues which have already been considered above. 

The finding made in my decision with respect to a fourth criterion, 

namely, that respondent had demonstrated a nor~al good faith effort to achieve 

rapid compliance is applicable to the settled issues except for the alleged 

violations which became the subject of withdrawal orders issued under section 

104(b) of the Act. The motion for approval of settlement takes the position 

that respondent did not demonstrate a good faith effort to achieve rapid compliance with respect to all violations involving issuance of withdrawal orders 

under section 104(b) of the Act. Under the settlement agreement, respondent 

has agreed to pay the full penalty proposed by the Assessment Office in all 

instances involving issuance of withdrawal orders. 

The motion for approval of settlement agrees that the evidence introduced 

at the hearing held in 1979 shows that payment of penalties will have an 

adverse effect on respondent's ability to continue in business •. The motion 

states that respondent will have to secure a loan in order to pay the settlement penalties totaling $4,631 and asks that I gtve respondent a period of 

90 days after issuance of my decision within which to pay the penalties 

because respondent needs more than the normal 30-day period for obtaining the 

loan before payment is due. I find that the request for a 90-day.period 

within which to pay penalties is reasonable and the order accompanying this 

decision will so provide. That request is especially reasonable when it is 

considered that my decision with respect to the contested issues requires 

respondent to pay penalties totaling $636 in addition to the settlement penalties totaling $4,631. 

I shall now give consideration to the matters discussed in the motion for 

approval of settlement. 

Docket No. PIKE 78-308-P 

The Petition for Assessment of Civil Penalty filed in Docket ·No. PIKE 

78-308-P seeks assessment of penalties for 12 alleged violations. Two of 

3661 

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., -, 

' ' 

i 

' '-.._. 
those violations have already been disposed of under the portion of this 

decision devoted to contested issues. Respondent has agreed to pay the full 

amount of the penalties proposed by the Assessment Office with respect to the 

remaining 10 alleged violations except for Notices of Violation Nos. 4 RM 

(7-45) and 2 RM (7-47) dated July 14 and July 15, 1977, respectively, as to 

which MSHA's counsel indicates that no penalty should be paid for the two 

violations of section 75.403 alleged in those notices because MSHA does not 

have the results of the laboratory analyses of dust samples which are required 

for proof of such violations (Hall Coal Co., Inc., 1 IBMA 175 (1972), and 

Valley Camp Coal Co., 1 IBMA 243 (1972)). 

The motion for approval of settlement states that MSHA declined to settle 

Ehe two violations alleged in Notice Nos. 1 RM (7-42) and 2 RM (7-43) both 

dated July 14, 1977, for less than the penalties of $106 each proposed by the 

Assessment Office because respondent failed to abate the alleged violations 

until after withdrawal orders were issued under section 104(b). The motion 

avers that the failure to abate the alleged violations before withdrawal 

orders were issued indicated a failure of respondent to demonstrate a good 

faith effort to achieve rapid compliance. 

I find that the motion for approval of settlement (pp. 7-11) has provided ample reasons for approving the settlement agreement under which respondent would pay total penalties of $534 instead of total penalties of $621 as 

proposed by the Assessment Office for the remaining 10 alleged violations 

involved in Docket No. PIKE 78-308-P. 

Docket No. PIKE 79-25-P 

The Petition for Assessment of Civil Penalty filed in Docket No.' PIKE 

79-25-P seeks to have penalties assessed for 20 alleged violations. None of 

those alleged violations were the subject to any testimony at the hearing held 

in 1979. The Assessment Office proposed penalties totaling $3,509 in this 

docket. Under the settlement agreement, respondent would pay reduced penalties totaling $960. More of the reductions in penalties involved in the parties' settlement agreement relate to the violations alleged in Docket No. PIKE 

79-25-P than are involved in any of the other docket numbers. The motion for 

approval of settlement (pp. 12-22) justifies many of the reductions on the 

basis that respondent's mine has never shown a history of releasing methane 

and on the fact that respondent has proven that it is in a very difficult 

financial condition. Additionally, it is a fact that the Assessment Office 

rated all of the violations alleged in Docket No. PIKE 79-25-P as being more 

serious and involving a greater degree of negligence than it did for similar 

violations involved in the other dockets. I find that the motion for 

approval of settlement has shown adequate reasons for reducing the penalties 

to the total of $960 which respondent has agreed to pay. 

Docket No. PIKE 79-50-P 

The Petition for Assessment of Civil Penalty filed in Docket No. PIKE 

79-50-P seeks to have penalties assessed for two violations, neither of which 

3662 
was considered at the hearing held in 1979. Under the settlement agreement, 

respondent would pay penalties totaling $85 instead of the penalties totaling 

$174 proposed by the Assessment Office. The motion for approval of settlement (pp. 14 and 22) justifies the reduction in the proposed penalties on 

the grounds, as to the permissibility violation, that no methane has ever 

been detected in respondent's mine and that no negligence on the part of 

respondent could be shown. As to the alleged violation of section 75.603, 

the reduction is based on the fact that respondent was aware of the 

existence of two temporary splices in the trailing cable and was in the 

process of obtaining a new trailing cable. I find that adequate reasons 

have been gi~en for approving tne reductions agreed upon as to the Petition 

filed in Docket No. PIKE 79-50-P. 

Docket No. PIKE 79-77-P 

The Petition for Assessment of Civil Penalty filed in Docket No. PIKE 

79-77-P seeks to have penalties assessed for seven alleged violations. All 

but one of the alleged violations were the subject of evidence presented 

during the 1979 hearing and have been disposed of in the section of this 

decision devoted to the contested issues. Under the settlement agreement, 

respondent has agreed to pay in full the penalty of $40 proposed by the 

Assessment Office for the remaining alleged violation of section 75.1704 

involved in this docket number. The motion for approval of settlement 

(p. 22) justifies the proposed penalty of $40 by noting that the circumstances of the violation are such that negligence on the part of the operator cannot be established. I find that the penalty of $40 is reasonable 

and that the settlement agreement with respect to this alleged violation 

of section 75.1704 should be approved. 

Docket No. PIKE 79-99-P 

The Petition for Assessment of Civil Penalty filed in Docket No. PIKE 

79-99-P seeks to have penalties assessed for four alleged violations. Three 

of those alleged violations were the subject of testimony introduced at the 

1979 hearing and have been disposed of in the section of this decision 

devoted to contested issues. Under the settlement agreement, respondent 

would pay a reduced penalty of $40 instead of the penalty of $80 proposed 

by the Assessment Office for the violation of section 75.400 which has not 

already been considered as a part of the contested issues. The motion for 

approval of settlement {pp. 23-24) justifies the reduction primarily on the 

ground that respondent is in a difficult financial condition. I find that 

a sufficient reason has been given for approving the parties' settlement as 

to Docket No .• PIKE 79-99-P. 

Docket No. KENT 79-125 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

79-125 seeks to have penalties assessed for eight alleged violations, none of 

which were the subject of the hearing·held in 1979. Under the settlement 

agreement, respondent would pay reduced penalties of $443 instead of the 

3663 

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~ ' . ' 
penalties totaling $618 proposed by the Assessment Office. The motion for 

approval of settlement (pp. 14; 23-26) discusses each of the eight alleged 

violations in detail. All of them were from moderately serious to serious 

and each was accompanied by at least ordinary negligence. Therefore, the 

primary reason for the parties' agreement to reduce the penalties in this 

docket number is that respondent is in a difficult financial condition. 

That has been the primary reason for the fact that I assessed low penalties 

in the portion of this decision which was devoted to the contested issues 

and those findings support the parties' settlement agreement which I find 

should be approved as to Docket No. KENT 79-125. 

Docket No. KENT 79-151 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

79-151 seeks to have a civil penalty assessed for a single violation of section 75.400. Unde~ the settlement agreement, respondent would pay the full 

penalty of $445 proposed by the Assessment Office. The motion for approval 

of settlement (p. 27) states that this alleged violation of section 75.400 

was not considered at the hearing held in 1979. While it is true that 

Inspector McClanahan, who wrote the citation and order involved in Docket 

No. KENT 79-151, did not testify at the hearing held in 1979, some of the 

testimony at the 1979 hearing did show that one of respondent's owners and 

Inspector McClanahan had had an altercation which caused the co-owner to 

order the inspector off of mine property (Tr. 782-783). 

Inasmuch as the hearing was never reconvened so that the inspector could 

give his version of the facts which led to the altercation, I am not making 

any findings about the merits of the dispute between the inspector and one 

of respondent's owners, but I think that the testimony as to the respondent's 

version of the controversy should be mentioned in view of the fact that the 

motion for approval of settlement (p. 28) primarily bases MSHA's refusal to 

reduce the proposed penalty in this instance on the fact that respondent 

declined to allow the inspector to come on mine property to determine whether 

the alleged violation of section 75.400 had been abated. The fact that 

respondent has agreed to pay a rather high penalty for what would otherwise 

have been considered to be a moderately serious violation is sufficient reason to approve the settlement agreement with respect to the violation of section 75.400 alleged in Docket No. KENT 79-151. 

Docket No. KENT 80-28 

'The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

80-28 seeks to have penalties assessed for two alleged violations. Under the 

settlement agreement, respondent would pay reduced penalties totaling $360 

instead of the penalties of $650 proposed by the Assessment Office. Respondent has agreed to pay the full amount of $60 proposed by the Assessment 

Office with respect to an alleged violation of section 75.1725. The other 

alleged violation related to a charge that respondent had violated its 

ventilation, methane and dust-control plan by failing to install a proper 

seal at a point where the operator had cut into an abandoned mine. Respondent had constructed a seal made of cinder blocks, but the seal was required 

3664 
to be made of concrete blocks and be provided with a water seal. It was 

necessary for a withdrawal order to be issued before the violation was abated. 

The motion for approval of settlement (p. 30) indicates that MSHA agreed to 

reduce the proposed penalty proposed by the Assessment Office from $590 to 

$300 primarily for the reason that respondent is in a difficult financial 

condition. I find that adequate reasons have been given for approving the 

settlement agreement with respect to the Petition filed in Docket No. KENT 

80-28. 

Docket No. KENT 80-31 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

80-31 seeks to have penalties assessed for 17 alleged violations. Under the 

settlement agreement, respondent would pay the total penalties of $772 proposed by the Assessment Office. The Proposed Assessment sheet in this docket 

indicates that the Assessment Office had current information about respondent's size at the time the penalties here involved were determined under the 

formula provided for in 30 C.F.R. § 100.3. The Assessment Office assigned 

penalty points based on a finding that respondent is a very small operator. 

The Assessment Office found that ordinary negligence was associated with all 

of the 17 alleged violations and that all of them were either moderately 

serious or serious. The motion for approval of settlement states that MSHA's 

counsel considers several of the violations to be serious enough to warrant 

assessment of penalties larger than those proposed by the Assessment Office, 

but MSHA's counsel states that he agreed to settle all of the alleged violations at the amounts proposed by the Assessment Office under the criterion 

that payment of large penalties would have a very adverse effect on respondent's ability to continue in business. I find that adequate reasons have 

been shown to approve the settlement agreed upon as to the 17 violations 

alleged in Docket No. KENT 80-31. 

Docket No. KENT 80-32 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

80-32 seeks to have penalties assessed for four alleged violations. In this 

docket, the Assessment Office also rated respondent as operating a very small 

business and proposed low penalties totaling $200 based on findings that each 

violation was associated with ordinary negligence and was moderately serious 

or serious. Under the settlement agreement, respondent would pay penalties 

totaling $173. The only penalty which was reduced below the amount proposed 

by the Assessment Office is for a violation of section 75.316 alleged in 

Citation No. 703939 dated April 30, 1979. As to that violation, which was 

based on the inspector's charge that only 2 of 24 water sprays on the 

continuous-mining machine were operable, the motion f'or approval of settlement states that the reduction from a proposed penalty of $72 to a settlement 

penalty of $45 was based on respondent's difficult financial condition. I 

find that an adequate reason has been given for approving the settlement 

agreed upon in Docket No. KENT 80-32. 

3665 

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Docket No. KENT 80-33 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

80-33 seeks to have penalties assessed for six alleged violations. Under the 

settlement agreement, respondent would pay penalties totaling $340 instead of 

the penalties totaling $358 proposed by the Assessment Office. The only penalty reduced by the settlement agreement below the amount proposed by the 

Assessment Office relates to Citation No. 713703 dated May 14, 1979, alleging 

a violation of section 75.1725 because a shuttle car's brakes were inoperative. The Assessment Office proposed a penalty of $78 for the violation of 

section 75.1725. The motion for approval of settlement (p. 29) had agreed to 

settle a previous violation of section 75.1725, pertaining to a shuttle car's 

- brakes, on the basis of a $60 penalty involving a very similar violation. The 

settlement agreement consistently agreed to reduce the $78 penalty proposed by 

the Assessment Office for this very similar violation to the same amount, that 

is, $60. MSHA's counsel agreed on a penalty of $60 in each instance because 

of respondent's poor financial condition. I find that the settlement agreement proposed in Docket No. KENT 80-33 should be approved for the reason 

stated above. 

Docket No. KENT 80-68 

The Petition for Assessment of Civil Penalty filed in Docket No. KENT 

80-68 seeks penalties for seven alleged violations. Under the settlement 

agreement, respondent would pay total penalties of $439 instead of the total 

penalties of $560 proposed by the Assessment Office. The Assessment Office 

considered that all of the alleged violations were associated with ordinary 

negligence and considered all of the violations to be moderately serious or 

serious. The Assessment Office proposed a penalty of $140 for a permissibility violation alleged in Citation No. 713717 dated May 31, 1979. Since 

respondent's mine has never been known to liberate methane, permissibility 

violations have not been considered to be very serious in this proceeding. 

In this instance, however, the Assessment Office proposed a large penalty of 

$140 because the respondent failed to abate the violation in a timely manner 

which resulted in the issuance of a withdrawal order. The Assessment Office, 

therefore, assigned 10 penalty points under 30 C.F.R. § 100.3 because it 

believed that respondent had failed to demonstrate a good faith effort to 

achieve compliance. The motion for approval of settlement (p. 44) shows 

that MSHA's counsel would not agree to a reduction of that relatively large 

penalty because of respondent's lack of good faith abatement • 

. The settlement agreement indicates that MSHA's counsel agreed to reduce 

three of the seven violations by a total of $121. A reduction of $10 in the 

$60 penalty proposed for the violation of section 75.601 alleged in Citation 

No. 713719 dated May 31, 1979, was agreed upon because of respondent's poor 

financial condition (Motion, p. 45). A reduction of $46 in the penalty of 

$106 proposed for the violation of section 77.504 alleged in Citation 

No. 714047 dated June 11, 1979, was made in the settlement agreement because 

of respondent's poor financial condition (Motion, p. 46). Finally, a reduction of $65 was made in the penalty of $90 proposed for the violation of 

3666 
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section 77.512 in Citation No. 714048 dated June 12, 1979, partly because 

of respondent's poor financial condition and partly because the condition 

described in Citation No. 714048 was also covered by the condition described 

in Citation No. 714047 for which respondent is paying a penalty of $60 

(Motion, p. 47). I find that adequate reasons have been given for approving 

the settlement agreed upon by the parties for the violations alleged by the 

Petition filed in Docket No. KENT 80-68. 

Summary of Assessments and Conclusions 

(1) On the basis of all the evidence received at the hearing held in 

this proce;ding in October 1979 and the parties' motion for approval of 

settlement filed on October 15, 1980, the following civil penalties should 

be assessed: 

Docket No. PIKE 78-308-P 

Notice No. 3 EDF (7-40) 7/15/77 § 75.326 •• (Contested) $ 

Notice No. 4 EDF (7-41) 7/15/77 § 75.200 •• (Contested) 

Notice No. 1 RM (7-42) 7/14/77 § 75.200 ••• (Settled) •••• 

Notice No. 2 RM (7-43) 7/14/77 § 75.200 (Settled) •••• 

Notice No. 3 RM (7-44) 7/14/77 § 75.400 (Settled) •••• 

Notice No. 4 RM (7-45) 7/14/77 § 75.403 (Dismissed) •• 

Notice No. 1 RM (7-46) 7/15/77 § 75.302-1 • (Settled) •••• 

Notice No. 2 RM (7-47) 7/15/77 § 75.403 (Dismissed) •• 

Notice No. 3 RM (7-48) 7/15/77 § 75.400 (Settled) 

Notice No. 1 RM (7-49) 7/19/77 § 75.326 (Settled) 

Notice No. 2 RM (7-50) 7/19/77 § 75.316 (Settled) 

Notice No. 2 RM (7-52) 7/20/77 § 75.301-1 • (Settled) 

Total Contested and Settled Penalties in 

15.00 

50.00 

106.00 

106.00 

61.00 

o.oo 

34.00 

o.oo 

102.00 

46.00 

36.00 

43.00 

Docket No. PIKE 78-308-P ••••••••••••••••••• $ 599.00 

Docket No. PIKE 78-451-P 

(All Contested) 

Notice No. 1 JM (7-57) 8/18/77 § 75.200 •••••••••••••••••• $ 100.00 

Total Contested (None Settled) Penalties in 

Notice No. 

Notice No. 

Notice No. 

Notice No. 

Notice No. 

Notice No. 

Notice No. 

Notice No. 

Docket No. PIKE 78-451-P ••••••••••••••••••• $ 100.00 

3 VER 

1 EDF 

2 EDF 

3 EDF 

5 EDF 

6 EDF 

7 EDF 

8 EDF 

Docket No. PIKE 78-458-P 

(All Contested) 

(7-50) 8/1/77 § 75.400 •• 

(7-63) 10/12/77 § 75.400 

(7-64) 10/12/77 § 75.400 

(7-65) 10/12/77 § 75.503 

(7-67) 10/12/77 § 75.400 

(7-68) 10/12/77 § 75.807 

(7-69) 10/12/77 § 75.200 

(7-70) 10/12/77 § 75.507 

3667 

(Dismissed) ••• $ 

··••••o•e•o•••••o 

. .............. . ••••••••• 0 •••••• 

• •••••••• c. •••••• 

. .............. . . .............. . 

o.oo 

15.00 

15.00 

15.00 

15.00 

25.00 

50.00 

20.00 

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Notice No. 1 EDF (7-71) 10/13/77 § 75.1725 ............... Notice No. 1 EDF (7-72) 10/14/77 § 77.1605(k) . ........... Notice No. 1 EDF (7-73) 10/17/77 § 75.604 . ............... Notice No. 2 EDF (7-74) 10/17/77 § 75.200 •• (Dismissed) . Notice No. 1 EDF (7-75) 10/18/77 § 75.316 . ............... Notice No. 2 EDF (7-76) 10/18/77 § 75.316 . ............... Notice No. 2 EDF (7-78) 10/20/77 § 75.1101-1 . ............ Notice No. 3 EDF (7-79) 10/20/77 § 7~.1102 ~·············· Notice No. 4 EDF (7-80) 10/20/77 § 75.516-2 . ............. Total Contested (None Settled) Penalties in 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

Docket No. PIKE 78-458-P . .................. 

Docket No. PIKE 79-25-P 

(All Settled) 

63654 6/19/78 § 75.1722 . .................... 63655 6/19/78 § 75.200 ...................... 63656 6/19/78 § 75.200 . ..................... 63657 6/19/78 § 75.1722 . .................... 63658 6/19/78 § 75.503 . ..................... 63659 6/19/78 § 75.313 . ..................... 63660 6/19/78 § 75.301-4 . ................... 63801 6/19/78 § 75.523-2 . ................... 63802 6/19/78 § 75.503 . ..................... 63803 6/19/78 § 75.503 ...................... 63804 6/19/78 § 75.1704-2(d) • ••• ai •••• 0 •••••• 

63805 6/19/78 § 75.1710 ..................... 63806 6/19/78 § 75.1710 ..................... 63807 6/19/78 § 75.1722 . .................... 63809 6/19/78 § 75.1100-2 ................... 63810 6/19/78 § 75.316 . ..................... 63811 6/20/78 § 75.1101-6 ................... 63812 6/20/78 § 75.316 . ..................... 63813 6/20/78 § 75.316 . ..................... 63814 6/20/78 § 75.503 . ..................... Total Settled (None Contested) in Docket 

No. PIKE 79-25-P . ......................... 

Docket No. PIKE 79-50-P 

(All Settled) 

$ 

$ 

$ 

Citation No. 63815 6/20/78 § 75.503 •••••••••••••••••••••• $ 

Citation No. 63816 6/20/78 § 75.603 •••••••••••••••••••••• 

Total Settled (None Contested) in Docket 

No. PIKE 79-50-P ··········•o••••••••••e••• $ 

Docket No. PIKE 79-77-P 

5.00 

20.00 

15.00 

o.oo 

5.00 

15.00 

5.00 

15.00 

15.00 

250.00 

45.00 

50.00 

35.00 

45.00 

50.00 

35.00 

46.00 

60.00 

50.00 

50.00 

50.00 

50.00 

50.00 

49.00 

50.00 

50.00 

60.00 

50.00 

50.00 

35.00 

960.00 

35.00 

50.00 

85.00 

Notice No. 1 EDF (7-81) 10/31/77 § 75.1100-2 (Dismissed) $ 0.00 

Citation No. 65863 3/21/78 § 75.601 •••••• (Dismissed)... 0.00 
Citation No. 65864 3/21/78 § 75.503 (Contested) 

Citation No. 65865 3/21/78 § 75.503 (Contested) 

Citation No. 65866 3/21/78 § 75.503 (Contested) 

Citation No. 65867 3/22/78 § 77.1605 •••• (Contested) 

Citation No. 63817 6/21/78 § 75.1704 •••• (Settled) ••••• 

Total Contested and Settled Penalties in 

Docket No. PIKE 79-77-P ••••••••••••••••••• $ 

Docket No. PIKE 79-99-P 

Order No. 65862 3/15/78 § 75.400 •••••••• (Contested) $ 

Order No.·65862 3/15/78 § 75.1725 ••••••• (Contested) 

Order No. 65862 3/15/78 § 75.1101-1 ••••• (Contested) 

Citation No. 63808 6/19/78 §' 75.400 ••••• (Settled) ••••• 

Total Contested and Settled Penalties in 

Docket No. PIKE 79-99-P ••••••••••••••••••• $ 

Docket No. KENT 79-1 

(All Contested) 

Citation No. 64600 11/16/78 § 75.1722(b) •••••••••••••••• $ 

Total Contested (None Settled) Penalties in 

Docket No. KENT 79-1 •••••••••••••••••••••• $ 

Citation No. 64310 

Ci tat ion No. 64311 

Citation No. 64312 

Citation No. 64313 

Citation No. 64314 

Citation No. 64315 

Citation No. 64330 

Citation No. 64331 

Docket No. KENT 79-125 

(All Settled) 

9/18/78 § 75.1710 .................... 9/18/78 § 75.503 ..................... 9/18/78 § 75.400 . .................... 9/18/78 § 75.515 ..................... 9/18/78 § 75.515 ..................... 9/18/78 § 75.601 ..................... 9/18/78 § 75.400 ..................... 9/19/78 § 75.512 . .................... Total Settled (None Contested) Penalties in 

Docket No. KENT 79-125 .................... 

Docket No. KENT 79-151 

(All Settled) 

Citation No. 64969 12/13/78 § 75.400 •••••••••••••••••••• 

Total Settled (None Contested) Penalties in 

Docket No. KENT 79-151 •••••••••••••••••••• 

Docket No. KENT 80-28 

(All Settled) 

Citation No. 703899 4/26/79 § 75.1725 ••••••••••••••••••• 

Citation No. 703940 5/4/79 § 75.316 ••••••••••••••••••••• 

Total Settled (None Contested) Penalties in 

Docket No. KENT 80-28 ••••••••••••••••••••• 

3669 

$ 

$ 

$ 

$ 

$ 

$ 

15.00 

25.00 

25.00 

1.00 

40.00 

106.00 

100.00 

5.00 

25.00 

40.00 

170.00 

25.00 

25.00 

52.00 

50.00 

40.00 

56.00 

56.00 

75.00 

66.00 

48.00 

443.00 

445.00 

445.00 

60.00 

300.00 

360.00 

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Docket No. KENT 80-31 

(All Settled) 

Citation No. 703896 4/26/79 § 77.701 •••••••••••••••••••• $ 

Citation No. 703898 4/26/79 § 77.701 •••••••••••••••••••• 

Citation No. 703900 4/26/79 § 77.506 •••••••••••••••••••• 

Citation No. 703930 4/26/79 § 75.1725 ••••••••••••••••••• 

Citation No. 703931 4/26/79 § 75.400 •••••••••••••••••••• 

Citation No. 703932 4/26/79 § 75.316 •••••••••••••••••••• 

Citation No. 703933 4/26/79 § 75.200 •••••••••••••••••••• 

Citation No. 703935 4/26/79 § 75.1103 ••••••••••••••••••• 

Citation No. 703961 4/26/79 § 75.523 •••••••••••••••••••• 

Citation No. 703936 4/30/79 § 75.200 •••••••••••••••••••• 

Citation No. 703937 4/30/79 § 75.200 •••••••••••••••••••• 

Citation No. 703962 4/30/79 § 75.604 •••••••••••••••••••• 

Citation No. 703963 4/30/79 § 75.604 •••••••••••••••••••• 

Citation No. 703964 4/30/79 § 75.503 •••••••••••••••••••• 

Citation No. 703965 4/30/79 § 75.503 •••••••••••••••••••• 

Citation No. 703967 4/30/79 § 75.523 •••••••••••••••••••• 

Citation No. 703968 4/30/79 § 75.1722 ••••••••••••••••••• 

Total Settlement (None Contested) Penalties in 

Docket No. KENT 80-31 ••••••••••••••••••••• $ 

Docket No. KENT 80-32 

(All ·Settled) 

Citation No. 703897 4/26/79 § 77.1605(a) •••••••••••••••• $ 

Citation No. 703934 4/26/79 § 75.1100-2 •••••••••••••••• 

Citation No. 703938 4/30/79 § 75.400 •••••••••••••••••••• 

Citation No. 703939 4/30/79 § 75.316 •••••••••••••••••••• 

Total Settled (None Contested) Penalties in 

Docket No. KENT 80-32 ••••••••••••••••••••• $ 

Docket No. KENT 80-33 

(All Settled) 

Citation No. 713455 5/2/79 § 75.604 •••••••••••••••••••• $ 

Citation No. 713456 5/2/79 § 75.200 •••••••••••••••••••• 

Citation No. 713703 5/14/79 § 75.1725 •••••••••••••••••• 

Citation No. 713707 5/14/79 § 75.603 ••••••••••••••••••• 

Citation No. 713708 5/14/79 § 75.503 ••••••••••••••••••• 

Citation No. 713710 5/14/79 § 75.200 ••••••••••••••••••• 

Total Settled (None Contested) Penalties in 

Docket No. KENT 80-33 •••••••••••••••••••• $ 

Docket No. KENT 80-68 

(All Settled) 

Citation No. 713717 5/31/79 § 75.503 ••••••••••••••••••• $ 

Citation No. 713718 5/31/79 § 75.1177 ••••••••••••••• · ••• 

3670 

52.00 

60.00 

40.00 

52.00 

40.00 

40.00 

56.00 

52.00 

34.00 

36.00 

56.00 

38.00 

56.00 

38.00 

30.00 

36.00 

56.00 

772.00 

40.00 

52.00 

36.00 

45.00 

173.QO 

60.00 

66.00 

60.00 

60.00 

34.00 

60.00 

340.00 

140.00 

52.00 
Citation No. 713719 S/31/79 § 7S.601 ................... so.oo 

Citation No. 713720 S/31/79 § 77 .sos ................... s2.oo 

Citation No. 714S81 S/31/79 § 77. 700 ................... 60.00 

Citation No. 714047 6/11/79 § 77 .S04 ................... 60.00 

Citation No. 714048 6/11/79 § 77.Sl2 ................... 2s.oo 

Total Settled (None Contested) Penalties in 

Docket No. KENT 80-68 .................... $ 439.00 

Total Contested and Settled Penalties in 

This Proceeding .......................... $ S,267.00 

(2) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 78-308-P should be dismissed insofar as it seeks to have penalties 

assessed for the violations of section 7S.403 alleged in Notice Nos. 4 RM 

(7-45) and 2 RM (7-47) dated July 14 and July lS, 1977, respectively, because 

the motion for approval of settlement (p. 9) states that the analyses of the 

dust samples required to prove those alleged violations are unavailable. 

(3) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 78-4S8-P should be.dismissed to the extent that it seeks assessment of 

a penalty for the violation of section 7S.400 alleged in Notice No. 3 VER 

(7-SO) dated August 1, 1977, because MSHA's counsel stated at the hearing 

that the inspector who wrote Notice No. 3 VER was unavailable to testify in 

support of the alleged violation (Tr. 119). 

(4) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 78-4S8-P should also be dismissed to the extent that it seeks to have a 

penalty assessed for the violation of section 7S.200 alleged in Notice No. 2 

EDF (7-74) dated October 17, 1977, because of MSHA's failure to prove that 

the violation occurred. 

(S) The Petition for Assessment of Civil Penalty filed in Docket No 

PIKE 79-77-P should be dismissed to the extent that it seeks to have a pen- · 

alty assessed for the violation of section 7S.1100-2 alleged in Notice No. 1 

'EDF (7-81) dated October 31, 1977, because of MSRA's failure to prove that 

the violation occurred. 

(6) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 79-77-P should also be dismissed to the extent that it seeks to have a 

penalty assessed for the violation of section 7S.601 alleged in Citation 

No. 65863 dated March 21, 1978, because of MSRA's failure to prove that the 

violation occurred. 

(7) Respondent, as the operator of the Nos. 2, 3, 4, and 6 Mines 

involved in this proceeding, is subject to the Act and to the regulations 

promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) Pursuant to the parties' settlement agreement and to my decision 

concerning the contested issues, Little Bill Coal Company is ordered, within 

36'71 

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90 days from the date of this decision, to pay civil penalties totaling 

$5,267.00, as summarized above in paragraph (1). 

· (B) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 78-308-P is dismissed to the extent and for the reason given in 

paragraph (2) above. 

(C) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 78-458-P is dismissed to the extent and for the reasons given in 

paragraphs (3) and (4) above. 

(D) The Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 79-77-P is dismissed to the extent and for the reasons given in 

paragraphs (5) and (6) above. 

(E) The motion for approval of settlement filed on October 15, 1980, 

is granted and the settlement agreement described therein is approved. 

Distribution: 

~c.~ ··&.. 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Herman W. Lester, Jr., Esq., Attorney for Little Bill Coal Company, 

Inc., Combs and Lester, P.s.c., 207 Caroline Avenue, P.O. Box 551, 

Pikeville, KY 41501 (Certified Mail) 

3672 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGC:S 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

EASTOVER MINING COMPANY, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC t 7 1980 

Civil Penalty Proceeding 

Docket No. VA 80-84 

Petitioner A.C. No. 44-00294-03032V 

Virginia No. 1 Mine 

Respondent 

DECISION 

Appearances: Catherine Oliver, Esq., Office of the Solicitor, 

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

for Petitioner; 

Karls. Forester, Esq., Harlan, Kentucky, for Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

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

Health Administration (hereinafter MSHA) under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act), 

to assess a civil penalty against Eastover Mining Company (hereinafter 

Eastover) for a violation of a mandatory standard. The proposal for assessment of a civil penalty alleges a violation of 30 C.F.R. § 75.507 in that 

nonpermissible power connection points were located in return air. 

The parties filed preliminary statements and a hearing was held in 

Abingdon, Virginia, on November 5, 1980. Inspector Herman Lucas testified 

on behalf of MSHA. Larry Baker, David Gilly, and Robert Jessee testified on 

behalf of Eastover. The parties submitted closing arguments at the hearing. 

ISSUES 

Whether Eastover violated the Act or regulations as charged by 11SHA and, 

if so, the amount of the civil penalty which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 75.507 provides as follows: "Except where permissible power 

connections are used, all power connection points outby the last open crosscut shall be in intake air." 

3673 
Section llO(i) of the Act, 30 iJ.s.c. § 820(i), provides in pertinent part 

as follows: 

In assessing civil monetary penalties, the CoI!lmission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalties, the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

STIPULATIONS 

The parties stipulated the following: 

1. Eas_tover owns and operates Virginia No. 1 Mine, and both Eastover 

and the mine are subject to the jurisdiction of the Act. 

2. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to the Act. 

3. The subject order, No. 682886, and termination thereto, were properly served by a duly authorized representative of MSHA, Herman Lucas. 

4. A copy of Order No. 682886 attached to the petition for adjudication 

of a civil penalty is an authentic copy of the original order. 

5. The assessment of a civil penalty in this proceeding will not affect 

Eastover's ability to continue in business. 

6. The pump control box which is the subject of Order No. 682886 was 

located in. the last open crosscut of the 2 Right Section, which is a return 

airway. 

7. The subject pump control box did not have permissible power connection points at the time the subject order was issued. 

8. The computer printout reflecting the operator's history of violations is an authentic copy and.may be admitted as a business record of MSHA. 

9. The appropriateness of the penalty, if any, to the size of the coal 

operator's business should be determined based upon the fact that Virginia 

No. 1 Mine has an annual tonnage of 236,248 and Eastover has an annual tonnage of 1,679,965. 

SUMMARY OF THE EVIDENCE 

During the course of a spot inspection of Eastover's Virginia No. 1 

Mine on September 12, 1979, MSHA inspector Herman Lucas issued an order of 

367il 

_, 
withdrawal pursuant to section 104(d)(l) of the Act for a violation of 

30 C.F.R. § 75.507. The order in question alleged, in part, as follows: 

"Nonpermissible power connection points, Gorman Rupp· water pump control box 

was being used in the last open crosscut in return air of 2 Right Section." 

As noted in the stipulations in this case, Eastover admits that the pump 

control box did not have permissible power connection points and was located 

in a return airway at the time the order was iissued. However, Eastover contends that the pump control box was not energized at the time the order was 

issued. Hence, it asserts that there was no violation of the regulation and 

no civil penalty should be assessed. 

Inspector Lucas testified that he did not know whether the pump was working or wh~ther the pump control box was energized at the time he issued the 

order. He stated that he assumed that the pump control box was energized or 

that it had been energized previously. The inspector admitted that Robert 

Jessee, the assistant mine foreman and the operator's escort during this 

inspection, told him that the pump control box was not energized. Inspector 

Lucas did not attempt to make a determination whether the pump control box. 

was energized. He stated that, in his opinion, if the equipment had never 

been energized, there would be no violation of the regulation. 

Larry Baker, formerly Eastover's general mine foreman on the third shift, 

testified that he installed the pump on the shift prior to the one on which 

the order was issued. After he set the pump in water, he found that there 

was not enough cable to connect the pump to the power center. Since he could 

not complete the installation of the pump, he hung the nonpermissible pump 

control box on a roof bolt in return air to keep it out of the mud. He 

asserted that he was familiar with the regulation in question and would not 

have left the pump control box in the return air if it were energized. 

Robert Jessee, Eastover's assistant mine foreman on the day shift, testified that he accompanied the inspector on the day in question. He testified 

that he told the inspector that the pump control box was not connected. He 

walked to the power center and confirmed the fact that the pump control box 

was not energized. 

The undisputed evidence on the remaining issues indicate that energized, 

nonpermissible power connection points in return air could cause a methane 

explosion which could be fatal. At the time of the order, .1 to .2 percent 

methane was found at the working places in this section. This mine has a 

history of methane liberation. However, if the pump control box was not 

energized, it could not cause an explosion and the violation would not be 

serious. In May 1979, there was a violation of this regulation, 30 C.F.R. 

§ 75.507, at this mine. 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of the parties have been considered. Eastover contends that the pump control box was 

not energized and, hence, no violation of the regulation occurred. The 

3675 

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inspector admitted that he did not know whether the pump control box was 

energized at the time he issued this order. He assumed that it had been 

energized at some prior time in nonpermissible condition but testified that 

if the box had not been energized at any time since its placement in return 

air, no violation would occur. However, whether or not the pump control box 

was ever energized is irrelevant to a determination of whether the regulation 

was violated. ~ 

Eastover should be aware that its defense, that the nonpermissible power 

connnection points were not energized, is no defense to a charge of violation 

of 30 C.F.R. § 75.507. In Secretary of Labor v. Eastover Mining Company, 

Docket Nos. NORT 78-54-P and NORT 78-55-P (November 8, 1978), Judge Steffey 

rejected Eastover's defense as follows: 

Since section 75.507 prohibits the placing of nonpermissible power connection points in return air outby the last 

open crosscut, I think the inspector is correct in stating 

that respondent violated section 75.507 by placing the 

charger in return air even though the charger was not being 

used at the time Order No. 1 MLH was written. 

Eastover did not seek review of that decision. 

Thereafter, in Secretary of Labor v. Southern Ohio Coal Company, Docket 

Nos. VINC 79-109-P, ~al. (October 19, 1979), Judge Koutras rejected the same 

defense to the same regulation as follows: 

I find and conclude that the petitioner has established 

a violation as charged in the citation by a preponderance of 

the evidence. Respondent's contention that petitioner must 

first establish that the battery charger unit in question was 

energized in order to support a violation of section 75.507 

is rejected, notwithstanding the inspector's practice of not 

issuing citations if it is not energized. I find no such 

requirement in the standard and respondent has not persuaded 

me otherwise. The question of whether the unit was energized 

at the time of the inspection goes to the question of gravity 

.and may not serve as an absolute defense to the violation. 

The citation is AFFIRMED. 

The Federal Mine Safety and Health Review Commission denied the petition for 

discretionary review~ 

In the instant case, Eastover cites no legal precedent in suppport of its 

defense. As noted above, the prior decisions of judges have held that the 

placement of nonpermissible power connection points in return air is a violation of 30 C.F.R. § 75.507 even if the units are not energized. I conclude 

that the evidence of record establishes a violation of 30 c.F.R. § 75.507. 

However, I also find that the pump control box in controversy had not been 

energized at the time the order issued. 

3676 
ASSESSMENT OF CIVIL PENALTY 

MSHA proposed that a civil penalty in the amount of $2,500 be assessed 

for this violation. I have found that there was a prior violation of the same 

standard, 30 C.F.R. § 75.507, cited in this case, in this same mine in Hay 

1979. Eastover was negligent in that it knew or should have known of this 

violation since the area where the violation occurred had been preshifted. 

This mine liberates methane and had the control box been energized, an explosion source would have been present. However, I have found that the control 

box was not energized at the time the order was issued, nor was it ever 

energized at the point at which it was found in return air. The gravity of 

the violation was therefore much less than was assumed by MSHA when it proposed a pen~lty of $2,500. 

Based upon all of the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that a civil penalty in the amount of 

$500 should be imposed for the violation found to have occurred. 

ORDER 

WHEREFORE IT IS ORDERED that Eastover pay the sum of $500 within 30 days 

of the date of this decision as a civil penalty for the violation of 30 C.F.R. 

§ 75.507. 

Laureiison, Judge 

Issued: 

Distribution by Certified Mail: 

Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480, Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 

Karl S. Forester, Esq., Forester & Forester, P.O. Box 935, Harlan, KY 

40831 

3677 

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1 ; 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 B 1980 

PENN ALLEGH COAL COMPANY, INC., 

Contestant. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED MINE WORKERS OF AMERICA, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

PENN ALLEGH COAL COMPANY, INC., 

Respondent 

Contest of Citation 

Docket No. PENN 80-271-R 

Citation No. 840677 

June 23, 1980 

Allegheny No. 3 Mine 

Civil Penalty Proceeding 

Docket No. PENN 80-275 

A.C. No. 36-05691-03012 

Allegheny No. 3 Mine 

DECISION 

Appearances: Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley, Whyte 

and Hardesty, Pittsburgh, Pennsylvania, for Penn Allegh Coal 

Company, Inc.; 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Secretary of 

Labor. 

Before: Judge Melick 

Hearings were held on these cases in Pittsburgh, Pennsylvania, on 

November 18, 1980, pursuant to sections 105(d) and llO(a) of the Federal Mine 

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

general issue to be first resolved is whether Penn Allegh Coal Company, Inc. 

(Penn Allegh), violated the regulation cited in both cases, to wit: 30 C.F.R. 

§ 70.101. At hearing, Penn Allegh filed a motion for summary decision. My 

bench decision granting that motion appears below with only non-substantive 

corrections and is affirmed as my final decision at this time. 

3678 
Under Commission Rule 64(b), 29 C.F.R. § 2700.64(b), a 

motion for a 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. Based on the agreed stipulation of 

facts submitted in this case, I conclude that, indeed, there 

is no genuine issue as to any material fact and that the 

operator in this case, Penn Allegh Coal Company, Inc., is 

entitled as a matter of law to a summary decision vacating 

the citations at issue. 

There are two citations before me each charging one violation of the standard at 30 C.F.R. § 70.101. That standard, 

which I will refer to as "the reduced dust standard," provides in part as follows: 

When the concentration of respirable dust in 

the mine atmosphere of any working place contains 

more than five percent quartz, the operator shall 

continuously maintain the average concentration 

of respirable dust in the mine atmosphere to which 

each miner in such working place is exposed at or 

below a concentration of respirable dust, expressed 

in milligrams per cubic meter of air, computed by 

dividing the percent of quartz into the number ten: 

[Emphasis added.] 

I have emphasized the language "working place" as 

utilized in the standard because that language is critical 

to the decision in this case and it is the language upon 

which this case is to be decided. The term "working place" 

is defined in the regulations at 30 C.F.R § 70.2(e) as the 

area of a coal mine inby the last open crosscut. The term 

"working place" as used in the standard cited in these cases, 

that is, the reduced dust standard, is clearly governed by 

this definition. No one disputes this. I conclude, therefore, that the operator is required to maintain the reduced 

respirable dust levels required by section 70.101 only in 

that same specific area located "inby the last open crosscut" i.e., the same "working place" where the respirable 

dust has been found to contain more than 5 percent quartz. 

The stipulated and agreed facts of this case show that 

the samples taken to establish that the concentration of 

respirable dust contaiued more than 5 percent quartz were 

taken between January 2 and January 9, 1980, in the north 

main section and specifically the area designated on the 

operator's mine map which is in evidence as Exhibit No. 1 

as the working places in the area adjacent to the letter 

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On the other hand, the samples on which the violations 

cited in the two cases before me today were based were 

actually taken in the 2 right section which has been identified on the operator's mine map (Exh. No. 1) as the area 

designated with an orange color with the date February 1980, 

adjacent to it, the area designated by a green color with 

the date March 1980, adjacent to it, the area designated by 

the color red with the date April 1980, appearing adjacent 

to it, the color brown with the date May 1980, appearing 

adjacent to it, and the color yellow with the date June 

1980, appearing adjacent to it. 

According to the stipulation, the "working places" 

where the quartz concentration was determined and the "working places" where the alleged violations were found were no 

closer than 2,000 feet apart. Under the circumstances, it 

is clear beyond all doubt that the "working places" at which 

the respirable dust having more than 5 percent quartz content 

was found and relied upon in these cases were not the same 

"working places" at which the violations were cited. There 

has, therefore, been no violation of the cited standard and, 

accordingly, the citations before me must be vacated. 

ORDER 

Citation Nos. 9901143 and 840677 are hereby VACATED. The civil penalty 

proceeding, Docket No. PENN 80-275, is DISMISSED. 

Distribution: 

Hardesty, 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail) 

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

NW., Washington, DC 20005 (Certified Mail) 

3680 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 8 1980 

CLIMAX MOL~BDENUM COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CLIMAX MOLYBDENUM WORKERS, 

LOCAL NO. 2-24410, OIL, CHEMICAL 

AND ATOMIC WORKERS INTERNATIONAL 

UNION, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Vo 

Respondent 

Petitioner 

CLIMAX MOLYBDENUM COMPANY, 

Respondent 

Applications for Review 

Docket No. DENV 78-553-M 

Citation No. 331733 

July 27, 1978 

Docket No. DENV 78-554-M 

Citation No. 331744 

July 27, 1978 

Docket No. DENV 78-555-M 

Citation No. 331747 

July 28, 1978 

Climax Mine 

Civil Penalty Proceeding 

Docket No. WEST 79-340-M 

A/O No. 05-00354-05025 

Climax Mine 

DECISION 

Appearances: Charles w. Newcom, Esq., Sherman and Howard, Denver, Colorado, 

for Climax Molybdenum Company; 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for the Mine Safety and Health 

Administration; 

David Jones, President, and James Kasie, Law Clerk, Climax 

Molybdenum Workers, Local No. 2-24410, Oil, Chemical and Atomic 

Workers International Union, Leadville, Colorado, for the Union. 

Before: Judge Cook 

3681 

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I. Procedural Background 

On August 28, 1978, Climax Molybdenum Company (Climax) filed applications for review in Docket Nos. DENV 78-553-M, DENV 78-554-M and DENV 

78-555-M pursuant to section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq. (1978) (1977 Mine Act). Answers were 

filed by the Mine Safety and Health Administration (MSHA) on September 7, 

1978. On October 31, 1978, the Climax Molybdenum Workers, Local No. 2-24410, 

Oil, Chemical and Atomic Workers International Union (Union) elected party 

status. 

On September 12, 1978, a notice of hearing was issued scheduling the 

application for review proceedings for hearing on November 28, 1978, in 

Denver, Colorado. On November 8, 1978, Climax filed motions for continuance 

and commencement of discovery, and on November 9, 1978, filed a motion for a 

prehearing conference for the determination of issues. The three motions 

were granted. The requested prehearing conference was held on December 1, 

1978, in Arlington, Virginia. Thereafter, on January 5, 1979, Climax filed 

amended applications for review. 

On May 5, 1979, a notice of hearing was issued scheduling the application for review proceedings for hearing on November 6, 1979, in Denver, 

Colorado. On September 26, 1979, Climax and MSHA filed a joint motion for 

continuance. The motion was granted on October 3, 1979, and the cases were 

continued to January 15, 1980, in Denver, Colorado. On January 2, 1980, 

Climax filed a motion for continuance. The motion was granted on January 7, 

1980, and the hearing was continued to March 11, 1980, in Silverthorn and 

Breckenridge, Colorado. 

Extensive discovery was authorized and various telephone conferences 

were held at various stages of the proceedings. 

The above-captioned civil penalty proceeding was filed by MSHA on 

September 24, 1979, pursuant to section llO(a) of the 1977 Mine Act alleging 

12 violations of various provisions of the Code of Federal Regulations. The 

three citations at issue in the above-captioned application for review proceedings are also at issue in the civil penalty case. Climax filed its 

answer on October 15, 1979, and on October 24, 1979, the case was assigned 

to Administrative Law Judge John J. Morris of the Commission's Office of 

Administrative Law Judges located in Denver, Colorado. On January 18, 1980, 

MSHA filed a motion to withdraw the proposal for a. penalty as relates to 

Citation Nos. 333241, 333339 and 333340. MSHA's motion was granted by Judge 

Morris on February 25, 1980. 

Thereafter, Climax moved to transfer the civil penalty case to the 

undersig?ed and such transfer occurred on March 4, 1980. On March 7, 1980, 

a notice of hearing was issued consolidating the case with the abovecaptioned application for review proceedings and scheduling it for hearing 

on March 11, 1980, in Silverthorn Colorado. 

3682 
The hearing was held on March 11, 1980, in Silverthorn, Colorado, and on 

March 12, 1980, in Breckenridge, Colorado. Representatives of Climax and 

MSHA appeared and participated on both days. A representative of the Union 

appeared on March 11, 1980, and limited his participation to the delivery 

of a brief opening statement. 

At the beginning of the hearing, MSHA filed a written motion in Docket 

No. WEST 79-340-M to withdraw the proposal for a penalty as relates to all 

remaining citations except the three at issue in the application for review 

proceedings. An order granting the motion is contained in this decision. 

At th~ conclusion of the hearing, an agreement was reached addressing the 

posthearing filing of definitions contained in certain treatises. On April 28, 

1980, Climax filed copies of definitions contained in treatises entitled, IEEE 

Standard Dictionary of Electrical and Electronic Terms, A Dictionary of Miniiig, 

Mineral, and Related Terms [U.S. Department of Interior], and the National 

Electrical Code. These exhibits were marked for identification as Exhibits 

0-9, 0-10, and 0-11, respectively, and received in evid~nce on June 13, 1980. 

Climax and MSHA filed posthearing briefs on May 16, 1980, and June 13, 

1980, respectively. Climax filed a reply brief on July 1, 1980. The Union 

did not file a posthearing brief. 

The transcript of the hearing was received by the undersigned Administrative Law Judge on June 4, 1980. Thereafter, it was discovered that the court 

reporting company had failed to forward with the transcript a total of 

26 exhibits received in evidence during the hearing, i.e., Joint Exhibits 1-A 

through 1-H, 2-A through 2-I, 3-A through 3-H, and Exhibit 0-4. By a letter 

dated August 14, 1980, the three parties were apprised of this and were 

requested to submit substitute copies of the missing exhibits in conjunction 

with an appropriate stipulation. Additionally, the representatives of Climax 

and MSHA were directed to obtain the signature of the Union's representative 

on the stipulation filed at the hearing on March 11, 1980. Climax filed 

copies of Joint Exhibits 1-A through 1-H, 2-A through 2-I, and 3-A through 

3-H, on September 8, 1980. The attached cover letter states that the parties 

"are in agreement that copies of these exhibits be placed in the record as 

substitutes for the missing joint exhibits. They bear identical numbers to 

the original exhibits. We are also in agreement that the cable which you have 

in your possession be substituted for missing Exhibit 0-4." 

On September 9, 1980, MSHA filed a statement agreeing to the substitution. 

To date, the Union has not filed a written statement agreeing to the substitution. The Union did not introduce any exhibits in evidence during the hearing. However, copies of Climax's September 8, 1980, cover letter and MSHA's 

September 9, 1980, filing were served on the Union, and the Union has not 

filed a statement in opposition to the substitution. Accordingly, the substitution will be made and the exhibits will be considered in deciding these 

cases. 

Additionally, on September 15, 1980, an agreement to the March 11, 1980, 

Stipulation bearing the Union representative's signature was filed. 

3683 

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II. Violations Charged in Docket No. WEST 79-340-M 

Citation No. 

331733 

331744 

331747 

333300 

333331 

333241 

333242 

333246 

333335 

333336 

333339 

333340 

III. Witnesses and Exhibits 

A. Witnesses 

Date 

July 27, 1978 

July 27, 1978 

July 28, 1978 

August 7, 1978 

November 27, 1978 

December 27, 1978 

December 27, 1978 

December 27, 1978 

December 27, 1978 

December 27, 1978 

December 27, 1978 

December 27, 1978 

30 C.F.R. 

Standard 

57.12-82 

57.12-82 

57.12-10 

57.12-28 

57.12-1 

57.12-1 

57.12-25 

57.12-13 

57.12-13 

57.12-13 

57.12-1 

57.12-1 

MSHA called as its witnesses Lawrence P. Filek, an electrical engineer 

at MSHA's Denver Technical Support Center; William S. Vilcheck, an electrical 

engineer at MSHA's Pittsburgh Technical Support Center; and James Atwood, a 

Federal mine inspector. 

Climax called as its witnesses Edwin D. Matheson, an electrician in the 

Starke locomotive shop of the Climax Mine and Chairman of the International 

Brotherhood of Electrical Workers, Local No. 1823; Harden H. Williams, an 

electrical foreman at the Climax Mine; George E. Pupera, electrical superintendent at the Climax Mine; and Dr. Fred Leffler, Associate Professor of 

Electrical Engineering at the Colorado School of Mines. 

B. Exhibits 

1. The following joint exhibits were introduced in evidence: 

Joint Exhibit 1-A is a copy of Citation No. 331733, July 27, 1978, 

30 C.F.R. § 57.12-82. 

Joint Exhibits 1-B through 1-E are copies of various subsequent 

action forms pertaining to Joint Exhibit 1-A granting various extensions of 

the time period for abatement. 

Joint Exhibit 1-F is a copy of the inspector's statement pertaining 

to Joint Exhibit 1-A. 

Joint Exhibit 1-G is a copy of the termination of Joint Exhibit 1-A. 

3684 
Joint Exhibit 1-H is a copy of Inspector Atwood's handwritten notes 

pertaining to Joint Exhibit 1-A. 

Joint Exhibit 2-A is a copy of Citation No. 331744, July 27, 1978, 

30 c.F.R. § 57.12-82. 

Joint Exhibits 2-B, 2-D, 2-E, and 2-F are copies of various subsequent action forms pertaining to Joint Exhibit 2-A granting various extensions 

of the time period for abatement. 

Joint Exhibit 2-C is a copy of a modification of Joint Exhibit 2-B. 

Joint Exhibit 2-G is a copy of the inspector's statement pertaining 

to Joint Exhibit 2-A. 

Joint Exhibit 2-H is a copy of the termination of Joint Exhibit 2-A. 

Joint Exhibit 2-I is a copy of Inspector Atwood's handwritten notes 

pertaining to Joint Exhibit 2-A. 

Joint Exhibit 3-A is a copy of Citation No. 331747, July 28, 1978, 

30 C.F.R. § 57 .12-10. 

Joint Exhibits 3-B through 3-E are copies of various subsequent 

action forms pertaining to Joint Exhibit 3-A granting various extensions of 

the time period for abatement. 

Joint Exhibit 3-F is a copy of the inspector's statement pertaining 

to Joint Exhibit 3-A. 

Joint Exhibit 3-G is a copy of the termination of Joint Exhibit 3-A. 

Joint Exhibit 3-H is a copy of Inspector Atwood's handwritten notes 

pertaining to Joint Exhibit 3-A. 

Joint Exhibit 4 is a booklet published by Climax containing general 

information about the Climax Mine. 

Joint Exhibit 5 is a booklet published by Climax entitled "This is 

Climax Molybdenum." 

Joint Exhibit 6 lists the type of electical cables at issue in these 

proceedings. 

Joint Exhibits 7 through 14 are photographs. 

Joint Exhibit 15 is a copy of a memorandum dated January 22, 1975, 

from William W. Carlson, Mining Engineer, Metal and Nonmetal Mine Health and 

Safety, Duluth Subdistrict, Marquette, Michigan, to A. z. Dimitroff, Chief, 

.Denver Technical ·support Center, Denver, Colorado, addressing the sub]ect of 

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electrocution hazard potential when powerlines are installed in contact with · 

water and air lines. 

Joint Exhibit 16 is a copy of a memorandum dated January 30, 1975, 

from the Electrical Engineer, Industrial Safety Group, to the Chief of the 

Denver Technical Support Center addressing powerlines in contact with metal 

pipelines. 

Joint Exhibit 17 is a copy of a memorandum dated January 31, 1975, 

from the Chief of the Denver Technical Support Center, to William W. Carlson 

replying to Joint Exhibit 15. 

Joint Exhibit 18 is a copy of the Nelson/Shepich Memorandum of 

_ February 21, 1975. 

Joint Exhibit 19 is a copy of a memorandum dated August 19, 1975, 

from the Chief of the Mine Electrical Systems Group, to the Assistant Administrator for Metal and Nonmetal Mine Health and Safety containing an opinion 

on the interpretation of mandatory safety standard 30 C.F.R. § 57.12-82. 

Joint Exhibit 20 is a copy of a memorandum dated February 10, 1978, 

from the Electrical Engineer, Mine Electrical Systems Branch, to Allen D. 

Stoutenger, Mining Engineer, Rocky Mountain Subdistrict Office, Lakewood, 

Colorado, addressing mandatory safety standard 30 C.F.R. § 57.12-82. 

2. MSHA introduced the following exhibits in evidence: 

M-1 through M-6 are photographs. 

M-7 is a copy of an extract from the National Electrical Code. 

M-8 is a copy of an extract from the American Electrician's Handbook. 

3. Climax introduced the following exhibits in evidence: 

0-1 is a booklet published by Climax entitled "Technical 

Information." 

0-2 is the affidavit of Otto W. Drager. 

0-3 is a copy of an extract from the National Electrical Code. 

0-4 is a segment of electrical cable. 

0-5 is a copy of an extract from the Anixter Brothers, Inc., supply 

catalog containing detailed specifications for the cables listed in Joint 

Exhibit 6. 

0-6 is a copy of Dr. Leffler's resume. 

3686 
0-7 contains copies of pages from the 1978 Annual Book of ASTM 

Standards. 

0-8 is a copy of an extract from the American Electrician's 

Handbook. 

0-9 contains copies of pages from the IEEE Standard Dictionary of 

Electrical and Electronics Terms. 

0-10 contains copies of pages from A Dictionary of Mining, Mineral, 

and Related Terms. 

0=11 is a copy of an extract from the 1978 National Electrical Code. 

IV. Issues 

A. The following issues are presented in the above-captioned application 

for review proceedings: 

1. Whether the term "powerline," as used in 30 C.F.R. § 57.12-82, 

encompasses not only the conductor, but also the other constituent parts of 

the cable used as a powerline, such as the insulation, filler and jacket. 

2. If the term "powerline," as used in 30 C.F.R. § 57.12-82, 

encompasses the conductor, insulation, filler and jacket, then whether the 

regulation requires the use of additional insulation where the powerline 

achieves contact with waterlines, telephone lines, and air lines. 

3. If the regulation requires the use of additional insulation 

where the powerline achieves contact with waterlines, telephone lines, and air 

lines, then what type of additional insulation is needed to comply with the 

standard? 

4. Whether mandatory safety standard 30 C.F.R. § 57.12-10 is violated when the outer jacket of a telephone line achieves contact with the 

outer jacket of a cable used as a powerline. 

B. Two basic issues are involved in the above-captioned civil penalty 

proceeding: (1) did a violation of the Code of Federal Regulations occur, 

and (2) what amount should be assessed as a penalty if a violation is found 

to have occurred? In determining the amount of civil penalty that should 

be assessed for a violation, the law requires that six factors be considered: 

(1) history of previous violations; (2) appropriateness of the penalty to the 

size of the operator's business; (3) whether the operator was negligent; (4) 

effect of the penalty on the operator's ability to continue in business; (5) 

gravity of the violation; and (6) the operator's good faith in attempting 

rapid abatement of the violation. 

3687 

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V. Opinion and Findings of Fact 

A. Stipulations 

1. Climax Molybdenum Company and its Climax Mine are subject to 

the provisions of the Federal Mine Safety and Health Act of 1977. 

2. The Administrative Law Judge has jurisdiction over the subject 

matter of, and the parties to, these proceedings. 

3. At all times relevant to the above-captioned proceedings, MSHA 

inspector James L. Atwood was an authorized representative of the Secretary 

of Labor. 

4. Citation No. 331733, Docket No. DENV 78-553-M was issued on 

July 27, 1978, by inspector James L. Atwood. A copy of that citation, 

together with subsequent action notices, Inspector Atwood's handwritten 

notes, and the Inspector's Statement, Form MSHA 7000-4, are attached hereto 

and incorporated herein by reference as Joint Exhibit 1. 

5. On July 27, 1978, Inspector Atwood issued Citation No. 331744, 

Docket No. DENV 78-554-M. A copy of that citation, together with subsequent 

action notices, Inspector Atwood's handwritten notes, and the Inspector's 

Statement, Form 7000-4, are attached hereto and incorporated herein by 

reference as Joint Exhibit 2. 

6. Citation Nos. 331733 and 331744 both involve alleged violations 

of regulatory standard 30 C.F.R. § 57.12-82. 

7. Citation No. 331747, Docket No. DENV 78-555-M was issued by 

Inspector Atwood on July 28, 1978. A copy of that citation, together with 

subsequent action notices, Inspector Atwood's handwritten notes, and the 

Inspector's Statement, Form MSHA 7000-4, are attached hereto and incorporated 

herein by reference as Joint Exhibit 3. 

8. Citation No. 331747 involves an alleged violation of 30 C.F.R. 

§ 57.12-10. 

9. The central question in the above-captioned actions is what 

constitutes suitable insulation or separation of powerlines from telephone 

lines, waterlines, or air lines. 

10. Climax and MSHA agree that Inspector Atwood observed various 

places on the 600 Level and the ·storke Level at the Climax Mine in which the 

outer jacket of an insulated and jacketed power cable was touching an air 

line, waterline or telephone line. The power conductors in these cables were 

carrying voltages ranging from 110 volts to 440 volts. The cables were in 

satisfactory condition. 

11. MSHA and Climax are in agreement that each of the joint 

exhibits attached hereto should be admitted into evidence. 

3683 
12. The Climax Mine is located at the peak of Fremont Pass in 

Lake County, Colorado, approximately 13 miles northeast of Leadville, Colorado, 

at an altitude of 11,318 feet. It is one of the world's major producers of 

molybdenum and the second largest underground mine in the world. 

13. The Climax Mine operates 24 hours per day employing a total of 

approximately 3,000 employees, roughly half of whom work underground. The 

mine has open pit operations which employ approximately 400 workers. The 

mine also has crushing and milling facilities employing approximately 

400 employees. The remaining employees perform various administrative 

functions on the surface. 

14. The mine presently has two underground production levels. One 

level (referred to as the Starke Level) has been in production since 1952. 

The second underground level (the 600 Level) has been in production since 

1972. Development work has begun on a third underground level which will be 

known as the 900 Level. 

15. Open pit production began in 1974. 

16. Total production at the mine is approximately 50,000 tons of 

ore per day. 

17. Molybdenum ore is mined underground by the block caving method. 

A cave is created above the production areas by drilling and blasting. After 

the rock is fractured by blasting, creating the cave, the force of gravity 

causes the rock to continue to break. The rock then falls from the cave 

into raises (fingers) that run at a 45-degree angle into a slusher drift. 

Each slusher drift (also called a dash) has six finger raises. The fractured 

rock falls through the raise into the slusher drift. Each slusher drift has 

a 150-horsepower electrical motor which powers a dipper that is pulled back 

and forth in the slusher dash. The dipper pulls the rock towards a draw hole 

which is 3.9 feet wide and 8 feet long. The rock falls through the draw hole 

into ore trains that are sitting on tracks in a haulage drift whi.ch is located 

approximately 10 feet below the floor of the slusher drift. The haulage drift 

is perpendicular to the slusher drift. The block caving method is illustrated 

in Joint Exhibit 4, especially the drawings on pages 8-10. Joint Exhibit 5, 

"This is Climax Molybdenum," also describes the mine's operations. 

18. This action involves only power cables in the drifts of the mine 

which have track for haulage of ore, or other materials, by rail. The Climax 

Mine has approximately 24 miles of haulage drifts. These drifts contain an 

estimated 367,000 feet of cable of the types in issue here (see paragraph 21). 

There are approximately 24 miles of air lines and 24 miles of waterlines in 

these drifts. 

19. As a general rule, air lines and waterlines are on one side of 

the drift and power cables are on the other side of the drift. 

3689 

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20. All of the power cables involved in this action carry voltages 

having low potential (low potential is defined in 30 C.F.R. § 57.2 as 

650 volts or less)~ In fact, none of these cables carry in excess of 

440 volts. 

21. The types of cables involved in this action are listed in 

Exhibit 6. 

22. The power cables in issue in this action never carry voltages 

greater than the manufacturer's insulation rating for that cable. 

23. These power cables may from time to time be on the same side 

o.f the drift as an air line or a waterline for a variety of reasons. These 

reasons include the following: 

A. It is sometimes necessary to move air or waterlines or 

power cables from one side of the drift to the other in order to transmit air, 

water, or electricity to a particular location. 

B. At intersections of drifts, air lines, waterlines, or power 

cables will frequently cross. 

C. The distribution of power within production areas leads to 

numerous crossovers which are unavoidable. Power for slusher operations is 

distributed via cable referenced in paragraph 21 above. The main distribution 

cable is the 500 M.C.M. cable. 2/0 feeder cables are spliced into that 

500 M.C.M cable to run power into a switch vault. Switch vaults are 70 feet 

apart in production areas on alternate sides of the haulage drift. (There are 

approximately 300 switch vaults in the mine. Approximately 150 are in production areas. At any given time, approximately 50 more switch vaults are active 

in supplying power to fans or other electrical equipment.) From the switch 

vault power is distributed to the motors in two slusher dashes. Slusher motors 

are also on alternating sides of the haulage drift, thus requiring at least one 

additional crossover of power cable and also frequently requiring that the 

power cable run parallel to the air and waterlines for several feet. These 

types of crossovers are illustrated in the photographs attached hereto as 

Joint Exhibits 7 through 14. Exhibit 7 shows a place where two drifts "Y" 

together. Exhibits 8, 9, and 10 illustrate the normal configuration of drifts 

with power cable on one side and pipelines on the other side of the drift. 

These exhibits also show power cable crossovers. Exhibit 11 is a closeup of 

cable crossing a drift running from a switch vault, across the back and up 

into a slusher dash. Exhibit 12 shows a switch vault on the same side of a 

drift as the power cable bundle, with the feeder cable out to the slusher 

dashes. Exhibit 13 shows another switch vault which provides power for 

two slusher machines; that switch vault is on the pipeline side of the 

drift. Exhibit 14 shows a small switch vault which supplies power to a 

nonproduction area. 

24. The dielectric strength of air or a substance refers to the 

ability of air or that substance to offer a high resistance to the passage 

of electricity through it. 

3690 
25. 

trical power. 

poweline. 

A powerline is a conducting material capable of carrying elecA communication line (because of the low current flow) is not a 

26. The court should be aware of three prior cases involving 

30 C.F.R. § 57.12-82. 

27. The first case is Docket No. DENV 79-92-PM, Secretary of Labor 

v. Kerr-McGee Nuclear Corporation. The facts in that case inv9lved a situation in which the outer jacket of a power cable assembly was in contact with 

a metal pipeline. That power cable assembly consisted of conductors, each of 

which were surrounded by insulation having a manufacturer's rating equal to 

or greate~ than the voltage applied to the power conductors. The insulated 

power conductors were then surrounded by an outer jacket which was in satisfactory condition. The only thing that came in contact with the metal pipeline was the outer jacket. By motion filed May 21, 1979, MSHA moved to vacate 

the citation issued on those facts because there was "insufficient evidence 

available to support the alleged violation." 

28. In a case invoLving similar facts, Docket No. WEST 79-252-M, 

MSHA v. Sunshine Mining Company, by motion served November 7, 1979, MSHA also 

moved to vacate a citation issued under 30 C.F.R. § 57.12-82 because "there 

[was] insufficient evidence to sustain the allegations contained in the citation." The facts in the Sunshine Mining case were essentially the same as 

those in the Kerr-McGee case. 

29. In a decision dated November 29, 1979, Secretary of Labor v. 

Ozark Mahoning Co., Docket No. VINC 79-138-PM, ·Judge Stewart found a violation 

of 30 C.F.R. § 57.12-82. The similarity between the facts of that case and 

the facts of this case are uncertain since he indicates in discussing one of 

the citations that the "outer jacket of the cable was comprised of neoprene 

and rubber insulation" and on the other citation that the powerline "was protected only by factory insulation." Here each of the cables are insulated 

and covered with a separate heavy-duty outer jacket approved for use in mines 

by the Bureau of Mines. 

30. Attached as Joint Exhibits 15 through 20 are various letters 

and interpretive memoranda issued by MSHA regarding 30 C.F.R. § 57.12-82. 

These constitute all of the published and unpublished interpretive letters or 

memoranda regarding that standard. 

31. The primary purpose of this litigation is for Climax and MSHA 

to resolve a conflict between them regarding interpretation of the regulatory 

provisions· in issue in this action. Climax and MSHA thus agree that in the 

event the court should determine that a violation(s) occurred, the appropriate civH penalty would be the amount the citation( s) was assessed for by 

the Office of Assessments. These amounts are as follows: Citation No. 

331733--$72; Citation No. 331744--$78; and Citation No. 331747--$66. 

32. Climax is a large operator within the meaning of the 1977 Mine 

Act. 

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33. Climax demonstrated good faith in attempting rapid abatement of 

the practices described in Citation Nos. 331733, 331744 and 331747. ··~ 

B. Opinion and Findings of Fact 

1. Occurrence of Violations 

The principal question presented in the above-captioned cases is what 

constitutes suitable insulation where powerlines achieve contact with telephone lines, waterlines, or air lines. The basic facts are relatively 

uncomplicated. The parties, however, demonstrate considerable disagreement 

both as to the legal significance of the facts and as to the proper interpretation of the cited mandatory safety standards. 

Citation Nos. 331733, 331744 and 331747 were issued at the Climax Mine 

by Federal mine inspector James L. Atwood during the course of the first 

inspection of that mine conducted pursuant to the provisions of the 1977 

Mine Act (Tr. 203). 

Citation Nos. 331733 and ·331734 were issued on July 27, 1978, addressing identical practices detected by Inspector Atwood on the 600 Level and 

Storke Level, respectively. These citations charge Climax with violations 

of mandatory safety standard 30 C.F.R. § 57.12-82 in that energized powerlines of various voltages were in contact with pipelines in various places. 1/ 

The term "pipelines," as used in the citations, refers to both air lines andwaterlines (Tr. 213), and the term "powerlines" refers to the outer jacket 

on insulated and jacketed cables (Tr. 223). 

Citation No. 331747 was issued on July 28, 1978, addressing a practice 

detected by Inspector Atwood on the 600 Level. The citation charges Climax 

with a violation of mandatory safety standard 30 C.F.R. § 57.12-10 in that 

several telephone lines were observed hanging with and touching energized 

powerlines. The citation further alleges that the practice existed in all 

areas of the 600 Level. 2/ The inspector testified that he checked a total 

of 10 telephones and that in each instance the telephone line "came out of 

the phone and went right up and into a bundle of powerlines, and went down 

1/ Citation No. 331733, July 27, 1978, 30 C.F.R. § 57.12-82 states the 

following: "Powerlines and pipelines were in contact on the 600 level in 

various places. These were energized powerlines of various voltages from 

110 V up." Citation No. 331744, July 27, 1978, 30 C.F.R. § 57.12-82 states 

the following: "Powerlines and pipelines were in contact on the Storke 

level in various places. These were energized powerlines of various 

voltages from llOV on up." 

2/ Citation No. 331747, July 28, 1978, 30 C.F.R. § 57.12-10 states the 

following: "Several phone lines on the 600 level were observed hanging 

with and touching energized powerlines. This condition exists in all of 

the areas of the 600 level. A total of 10 phones were checked and the 

lines were all in contact with the powerlines." 

3692 

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the drift" (Tr. 218). He further testified that the telephone lines in 

question had jackets (Tr. 257), and that the citation addresses the outer 

jackets of telephone lines touching the outer jackets of power cables (Tr. 

223). 

At various times between August 25, 1978, and February 2, 1979, Federal 

mine inspectors James D. Enderby and David Park issued subsequent action 

notices extending the time periods for abatement. The citations were terminated in April of 1979 by Federal mine inspector Elmer E. Nichols. 

The parties stipulated that molybdenum ore is mined underground at the 

Climax Mine by the block caving method. A cave is created above the production areas by drilling and blasting. After the rock is fractured by blasting, 

creating the cave, the force of gravity causes the rock to continue to break. 

The rock then falls from the cave into raises (fingers) that run at a 

45-degree angle into a slusher drift. Each slusher drift (also called a 

dash) has six finger raises. The fractured rock falls through the raise into 

the slusher drift. Each slusher drift has a 150-horsepower electrical motor 

which powers a dipper that is pulled back and forth in the slusher dash. The 

dipper pulls the rock towards a draw hole which is 3.9 feet wide and 8 feet· 

long. The rock falls through the draw hole into ore trains that are sitting 

on tracks in a haulage drift which is located approximately 10 feet below 

the floor of the slusher drift. The haulage drift is perpendicular to the 

slusher drift. 

The parties further stipulated that the instant cases involve only power 

cables in drifts of the mine which have track for the haulage of ore, or other 

materials, by rail. The Climax Mine has appoximately 24 miles of haulage 

drifts, and these drifts contain an estimated 367,000 feet of cable of the 

types in issue here. The types of cables involved in these proceedings are 

listed on Joint Exhibit 6. There are approximately 24 miles of air lines and 

24 miles of waterlines in these drifts. 

All of the power cables involved in the instant cases carry voltages 

having low potential, as that term is defined by 30 C.F.R. § 57.2, i.e., 

650 volts or less. None of these cables carry in excess of 440 volts-:-

Additionally, the cables never carry voltages greater than the 

manufacturer's insulation rating. 

As a general rule, air lines and waterlines are on one side of the drift 

and power cables are on the other side of the drift. However, the power 

cables may, from time to time, be on the same side of the drift as an air line 

or a waterline for a variety of reasons. These reasons include the following: 

First, it is sometimes necessary to move air or waterlines or power cables 

from one side of the drift to the .>ther in order to transmit air, water, or 

electricity to a particula~ locatjon. Second, at intersections of drifts, 

air lines, waterlines, or power c:bles will frequently_cross. Third, the 

distribution of power within produ~tion areas leads to numerous crossovers 

which are unavoidable. Power fo~ slusher operations is distributed via cable 

referenced in Joint Exhibit 6. The main distribution cable is the 500 M.C.M. 

3693 

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cable. 2/0 feeder cables are spliced into that 500 M.C.M. cable to run power 

into a switch vault. Switch vaults are 70 feet apart in production areas on 

alternate sides of the haulage drift. There are approximately 300 switch 

vaults in the mine. Approximately 150 are in production areas. At any given 1 

time, approximately 50 more switch vaults are active in supplying power to 

fans or other electrical equipment. Power is distributed from the switch 

vault to the motors in two slusher dashes. Slusher motors are also on 

alternating sides of the haulage drift, thus requiring at least one additional crossover of power cable and also frequently requiring that the power 

cable run parallel to the air and waterlines for several feet. 

In addition to the foregoing, the parties stipulat.ed that when the 

respective citations were issued, Inspector Atwood observed various places 

011 the 600 Level and the Starke Level at the Climax Mine in which the outer 

jacket of an insulated and jacketed power cable was touching an air line, 

waterline or telephone line, and that the· power conductors in these cables 

were carrying voltages ranging from 110 volts to 440 volts. Furthermore, 

the parties stipulated that the cables were in satisfactory condition. 

Mandatory safety standard 30 C.F.R. § 57.12-82 provides as follows: 

"Powerlines shall be well separated or insulated from waterlines, telephone 

lines, and. air lines." The regulation applies "only to the underground 

operations of underground mines." 30 C.F.R. § 57.1. The principal area of 

disagreement between the parties centers around the appropriate definition 

of the term "powerlines" and the determination as to what constitutes suitable insulation at the points where powerlines achieve contact with waterlines, air lines, and telephone lines. 

Climax argues that the term "powerline" should be defined as a "conducting material capable of carrying electrical power;".!..·~·, that the definition 

of powerline should be limited to the copper conductors contained within a 

power cable, and exclude the insulation, jacket and filler. Climax further 

argues that when this definition is applied, one can then consult both the 

American Society for Testing and Materials (ASTM) standards for the manufacture 

of power cable and accepted principles of electrical engineering to determine 

whether the insulation is sufficient. In Climax's view, unless such definition is adopted, no objective basis exists for determining what constitutes 

suitable insulation. Additionally, Climax maintains that its interpretation 

is consistent with the electrical standards in 30 C.F.R. § 57.12. (Climax's 

Posthearing Brief, pp. 8-15, 20). 

MSHA categorically rejects Climax's contentions and argues that "powerline" includes not only the metal that actually conducts the flow of power 

from one point to another, but also the component parts that make up the line 

from one point to another, i.e., the insulation, jacket and filler. (MSHA's 

Posthearing Brief, p. 3). For the reasons set forth below, I conclude that 

the term "powerline," as used in 30 C.F.R. § 57.12-82, encompasses not Qnly 

3694 
the conductor, but also all constituent parts of the cable that make up the 

line from one point to another, ~·.B.•, the insulation, jacket and filler. 11 

Neither Climax's nor MSHA's witnesses were able to point to a learned 

treatise. in the field of electrical matters containing a definition of the 

term "powerline," and none of the exhibits suggest an express definition for 

the term. Accordingly, on the basis of the record developed in these cases, 

it must be concluded that the term "powerline," as used in the general electrical field, is not susceptible to a precise definition of the type that 

would be of meaningful assistance in deciding the issues presented in the 

instant cases. It is therefore necessary to consider all electrical standards and definitions contained in Part 57 of Title 30 of the Code of Federal 

Regulations .;in order to determine the meaning of the term "powerline" as 

used in the contf.xt of standards designed to secure a safe work place for 

miners working in the underground areas of metal and nonmetallic mines. 

A full review of the electrical standards and definitions set forth in 

Part 57 of Title 30 of the Code of Federal Regulations convinces me that 

Climax's definition of· the term "powerline" is inaccurate when viewed in the 

context of mine safety as relates to electrical applications located in the 

underground areas of underground metal and nonmetallic mines. The electrical 

terms appearing most frequently in 30 C.F.R. § 57.12, insofar as material to 

the instant cases, are "cables," trailing cables," "power cables," "conductors," 

"power conductors," "bare power conductors," "electrical conductors," "power 

wires," "signal wire," "bare signal wires , " "trolley feeder wires , " "trolley 

wires," "powerlines" and "bare powerlines ." Of· these, only the term "conductor" is expressly defined within Part 57 of Title 30. Climax's proffered 

definition of "powerline" is identical in all material respects to the definition of "conductor" set forth at 30 C.F.R. § 57.2, which provides as follows: 

"'conductor' means a material, usually in the form of a wire, cable, or bus 

bar, capable of carrying an electric current." It can therefore be deduced 

that if the drafters of the subject regulation had intended it to require 

only "conducting material capable of carrying electrical power" to be "well 

separated or insulated from waterlines, telephone lines, and air lines," 

then they would have used the term "conductors" in lieu of the term "powerlines." Substantial guidance is also provided by a comparison of mandatory 

safety standards 30 C.F.R. § 57.12-66 and 30 C.F.R. § 57.12-82. The former 

11 Climax maintains that MSHA stipulated to this definition of a powerline 

and that MSHA should not be permitted to depart from the definition as 

stipulated (Climax's Posthearing Brief, pp 14-15). The stipulation in 

question states as follows: "A powerline is a conducting material capable 

of carrying electrical power. A communication line (because of the low 

current flow) is not a powerline." Having considered both the comments of 

counsel for MSHA (Tr~ 117-118, 122-123) and the precise wording of the 

stipulation, I conclude that the sole purpose of this stipulation was to 

set forth a distinction as to the different functions performed by powerlines and communication lines. Accordingly, the conclusion reached in this 

decision as relates to the definition of "powerline" does not do violence 

to the stipulation. 

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regulation, applicable "only to the surface operations of underground mines," 

30 C.F.R. § 57 .1, makes express reference to "bare powerlines" (emphasis 

added). The latter regulation, applicable only to the underground operations of underground mines, refers to "powerlines" and does not contain the 

modifying adjective "bare." In view of the foregoing, it is apparent that 

the drafters of Part 57 of Title 30 intended that the term "powerline ," in 

the context of 30 C.F.R. § 57.12-82, envisioned a line that already included 

a conductor or conductors with the insulation and jacket as manufactured, 

such as exists in Exhibit 0-4. Accordingly, I conclude that the term "powerline ,"as used in 30 C.F.R. § 57.12-82, encompasses not only the metal that 

actually conducts the flow of electricity from one point to another, but also 

all component parts that make up the line from one point to another. The 

electrical cables at issue in Citation Nos. 331733 and 331744 were "powerlines" within the meaning of the cited regulation. Furthermore, the terms 

"trolley wires" and "bare power conductor," as treated in 30 c.F.R. § 57.12-80, 

bolster the proposition that the term "powerlines" in the context of 30 C.F.R. 

§ 57.12-82 envisioned something more than bare power conductors. 

The second a~ea of controversy concerns the determination as to what 

constitutes insulation in compliance with the regulation. Both MSHA and 

Climax agree that the purpose of 30 C.F.R. § 57.12-82 is to prevent a waterline, telephone line or air line from becoming energized (Climax's Posthearing Brief, p. 19; MSHA's Posthearing·Brief, p. 4). Climax argues that 

compliante with the standard is achieved if the manufacturer applied insulation on the powerline is sufficient to achieve the standard's objective. 

Accordingly, Climax argues that the cables at issue (Joint Exh. 6) provide 

the requisite protection by their design (Climax's Posthearing Brief). 

MSHA argues that, in the context of mining, avoidable hazards and risks 

are required to be eliminated to the greatest extent possible, and that this 

objective is attained when the powerlines are well separated from the waterlines, telephone lines and air lines, or when insulation, in addition to that 

which is placed on the powerline by the manufacturer, is used at the points 

of contact. In MSHA's view, Climax's proffered interpretation is both shortsighted and naive because it incorrectly assumes that powerlines used in the 

underground areas of metal and nonmetallic mines will never sustain damage. 

According to MSHA, Climax's approach allows avoidable hazardous conditions 

to remain in the miner's work environment, and places excessive faith in 

the initial construction and manufacturer's testing of every inch, foot and 

mile of powerline used in the Climax Mine. MSHA points to the Nelson/Shepich 

Memorandum of February 21, 1975 (Joint Exh. 18) as a detailed statement of 

its interpretation of the requirements of the regulation, and argues that 

the interpretation set forth in the memorandum should be accorded deference, 

citing Bell v. Brown, 557 F.2d 849, 855 (D.C. Cir. 1977); Perine v. William 

Norton ~mpany;-Iric., 509 F.2d 114, 120 (2d Cir. 1974); 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 637 (1978) (MSHA's Posthearing Brief, 

PP• 2-7). 

It is unnecessary to rely upon the Nelson/Shepich Memorandum of 

February 21, 1975 (Joint Exh. 18) for the proposition that mandatory safety 

standard 30 C.F.R. § 57.12-82 requires the use of additional insulation at 

3696 

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the points where powerlines contact waterlines, telephone lines and air lines. 

The regulation; when interpreted in accordance with the principles of statutory construction, requires the use of additional insulation. 

As a general proposition, the rules of statutory construction can be 

employed in the interpretation of administrative regulations. See C. D. Sands, 

lA Sutherland Statutory Construction, § 31.06, p. 362 (1972). According to 

2 Am. Jur.2d, Administrative Law, § 307 (1962), "rules made in the exercise 

of a power delegated by statute should be construed together with the statute 

to make, if possible, an effectual piece of legislation in harmony with common 

sense and sound reason." Remedial legislation directed toward securing safe 

work places must be interpreted in light of the express Congressional purpose 

of providing a safe work environment, and the regulations promulgated pursuant 

to such legislation must be construed to effectuate Congress' goal of accident 

prevention. Brennen v. Occupational Safety and Health Review Commission, 

491 F.2d 1340 (2d Cir. 1974). 

Mandatory safety standard 30 C.F.R. § 57.12-82 uses the terms "powerlines" and "insulated." As noted previously in this decision, it is apparent 

that the drafters of Part 57 of Title 30 intended that the term "powerline," 

in the context of 30 C.F.R. § 57.12-82, envisioned a line that already 

included a conductor or conductors with the insulation and jacket as manufactured, such as exists in Exhibit 0-4. Accordingly, the use of the term 

"insulated" in 30 C.F.R. § 57.12-82 would be a redundancy if it did not 

require the use of additional insulation. It is a time-honored rule of 

statutory construction that effect must be given, if possible, to every word, 

clause and sentence contained in a statute. "A statute should be construed 

so that effect is given to all its provisions, ·so that no part will be 

inoperative or superfluous, void or insignificant, and so that one section 

will not destroy another unless the provision is the result of obvious mistake or error." C. D. Sands, 2A Sutherland Statutory Construction, § 46.06, 

p. 63 (1973). However, it is equally "clear that if the literal import of 

the text of an act is not consistent with the legislative meaning or intent, 

or such interpretation leads to absurd results, the words of the statute 

will be modified by the intention of the legislature." C. D. Sands, 2A 

Sutherland Statutory Construction, § 46.07, p. 65 (1973). 

The foregoing interpretation of 30 C.F.R. § 57.12-82 as requiring additional insulation where powerlines achieve contact with waterlines, telephone 

lines and air lines, gives effect to both words contained in the regulation, 

preserves the intent of the drafters, and harmonizes with Congress' goal of 

accident prevention. It cannot be said that the drafters were unaware of 

the significance attached to the use of the term "insulated," because such 

term is defined by 30 C.F.R. § 57.2 as follows: 

"Insulated" means separated from other conducting surfaces by a dielectric substance permanently offering a high 

resistance to the passage of current and to disruptive discharge through the substance. When any substance is said to 

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be insulated, it is understood to be insulated in a manner 

suitable for the conditions to which it is subjected. Otherwise, it is, within the purpose of this definition, uninsulated. Insulating covering is one means for making the conductor insulated. 

It is significant to note that "[w]hen any substance is said to be 

insulated, it is understood to be insulated in a manner suitable for the 

conditions to which it is subjected." Climax's position in this case fails 

to take this requirement into account. 

Climax's principal argument asserts that the electrical cables used as 

powerlines in the underground areas of the Climax Mine accord the requisite 

protection that the regulation seeks to secure by virtue of their very 

design. The testimony of Dr. Fred Leffler, Associate Professor of Electrical Engineering at the Colorado School of Mines, supports Climax's contention that the cables, manufactured in ·accordance with the ASTM standards, 

are substantially overdesigned in terms of their dielectric properties. 

According to Dr. Leffler, the dielectric strength of ethylene-propylene 

rubber (EPR) is approximately 350 volts per mil, i.e., approximately 350 volts 

per 1/1000 of an inch (Tr. 363, 396). EPR is the-type of insulation used on 

much of the cable at issue in the instant cases. These 600-volt rated, EPRinsulated cables have an insulation thickness ranging from 30 to 60 mils, 

depending on the size of the conductors (Exh. 0-7, Table lD). The size of 

the conductors in the cables at issue ranges from 16 Awg to 500 mcm (Joint 

Exh. 6). Accordingly, these cables have insulation around the conductors 

with a dielectric strength rating, depending on the size of the conductors, 

of 10,500 volts (Awg sizes 14 to 9), 15,750 volts (Awg sizes 8 to 2), 

19,250 volts (Awg sizes 1 to 4/0), and 22,750 volts (225-500 mcm). (See, 

Exh. 0-7, table lD, and Tr. 361-364.) ~-

Styrene butadiene rubber (SBR), the other type of insulation used on the 

power cables at issue in these proceedings, has a dieletric strength rating 

of approximately 250 volts per mil (Tr. 357-358). Accordingly, the 600-volt 

rated, $BR-insulated cables have insulation around the conductors with a 

dielectric strength rating, depending upon the size of the conductors, of 

7,500 volts (Awg sizes 18-16), 11,250 volts (Awg sizes 14-9), 15,000 volts 

(Awg sizes 8-2), 20,000 volts (Awg sizes 1 to 4/0), and 23,750 volts (225 

to 500 mcm). (See, Exh. 0-7, table lA, and Tr. 357-361.) 

The neoprene rubber used as a jacket is not taken into account when 

determining the insulation rating. The jacket serves to protect the insulation from outside forces such as oils, acids, alkalies, water or moisture, 

flame and abrasion (Tr. 48, 67-68, 365). However, both Dr. Leffler and 

Lawrence P. ~ilek, an MSHA electrical engineer, agreed that the jacket has 

an insulating capability (Tr. 49, 367). According to Dr. Leffler, neoprene 

and lead-cured neoprene have a dielectric strength of approximately 300 volts 

per mil (Tr. 367). Cable specifications set forth by Climax's cable supplier, Anixter Brother's Inc., indicate that the jacket on a three-conductor, 

3698 
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16-Awg cable, which appears to be the smallest cable listed on Joint Exhibit 

6, is 4/64's of an inch (Exh. 0-5); .!·~·, 62.5 mils. Accordingly, the jacket 

on what appears to be the smallest cable would provide an extra 18,750 volts 

of dielectric substance on that cable. 

The fact that the cables possess these qualities is not dispositive. 

It must be borne in mind that the powerline applications addressed by 

30 C.F.R. § 57.12-82 are located in the underground areas of metal and nonmetallic mines, an extremely harsh environment. The cables can sustain 

physical damage from a variety of sources such as fly rock and concussion 

from blasting, rubbing by haulage equipment, and dragging over sharp rock 

or metal edges (Tr. 71, 73-74, 198-200, 215, 295, 329). According to 

Mr. Filek, if wires or small metal objects, propelled by a blast concussion, 

penetrated both the jacket and insulation, a waterline or air line could 

become energized in the absence of added insulation if the cable was within 

sufficient proximity to the waterline or air line. lbis could occur even 

though the cable did not contact the pipe at the point of penetration. 

Electricity can conduct along the surface of a contaminated cable to the 

point of contact (Tr. 75-76). Furthermore, it it should be borne in mind 

that Inspector Atwood worked as a miner at the Climax Mine from 1956 to 1972 

(Tr. 195-196). His testimony is deemed particularly probative as relates 

to both the conditions existing in the mine and the frequency of employee 

contact with the waterlines and air lines. His. testimony reveals that the 

mine is wet and that individuals walking through underground areas are walking in mud and water most of the time. It is extremely wet when the snow 

melts in spring. In fact, the mine resembles an underground lake in areas 

at that time of the year (Tr. 211). The inspector further testified that 

it is normal for miners to achieve physical contact with the waterlines and 

air lines during their normal working day. Physical contact can occur while 

hooking up air and water hoses, while climbing ladders or while stepping 

into the dashes (Tr. 214). 

Additionally, it is significant to note that both Mr. Williams and 

Mr. Pupera testified that they would prefer added insulation at the point of 

contact prior to touching the water or air lines, provided the jacket and 

insulation had been penetrated (Tr. 315-316, 329-330). 

It cannot be said that drafters of Part 57 of Title 30, in formulating 

their definition of "insulated," were unaware of either the harsh environment 

in the underground areas of metal and nonmetallic mines or the dielectric 

properties of jackets and insulation used on cables approved for use in 

mines. A substance is "insulated" when it is "insulated in a manner suitable 

for the conditions to which it is subjected," a requirement directly related 

to the mining environment. The fact that "[i]nsulating covering is one means 

for making the conductor insulated" shows that the drafters did not intend to 

rely solely upon the cable as manufactured in all cases. 

These considerations, when applied to 30 C.F.R. § 57.12-82, point to 

an interpretation requiring the use of insulation in addition to that which 

is on the powerline. Given the harsh environment existing in the underground 

areas of metal and nonmetallic mines, it would be unreasonable to rely solely 

3699 

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upon the manufacturer-applied insulation to achieve the regulation's stated 

goal. In this environment, a mine operator cannot be 100 percent certain 

that every inch of powerline will retain its dielectric integrity throughout 

each hour and minute of the day. The added insulation may not be foolproof, 

but its use promotes the regulation's objective and thereby contributes to 

securing a safe work place for miners. "Should a conflict develop between 

a statutory interpretation that would promote safety and an interpretation 

that would serve another purpose at a possible compromise of safety, the 

first should be preferred." District 6, UMWA v. Department of Interior 

Board of Mine Operations Appeals, 562 F.2d 1260 (D.C. Cir. 1972). 

Accordingly, I conclude that 30 C.F.R. § 57.12-82 requires the use of' 

additional insulation where powerlines contact waterlines, telephone lines 

and air lines. 

The final question presented as relates to Citation Nos. 331733 and 

331744 concerns the type of additional insulation necessary to comply with 

the regulation. It is unnecessary to explore this issue in order to determine whether the cited practices constituted violations of 30 C.F.R. 

§ 57.12-82 because the mine operator in this instance had no additional 

insulation at the points of contact with the air lines and waterlines. The 

absence of any additional insulation established violations of the regulation. However, the evidence does disclose the type of additional insulation 

necessary, at a minimum, to comply with the requirement, as set forth in the 

following paragraphs. 

One of MSHA's interpretations is set forth in the last paragraph of the 

Nelson/Shepich Memorandum of February 21, 1975 (Joint Exh. 18), as follows: 

"Additional insulation means that insulation in addition to the jacketing 

shall have a dielectric strength at least equal to the maximum applied 

voltage on the conductor." This interpretation is entitled to weight. As 

noted by the Commission in The Helen Mining Company, 1 FMSHRC 1796, 1801, 

1979 OSHD par. 24,045 (1979): 

In accordance with this expression of congressional 

intent, we will accord special weight to the Secretary's view 

of the 1977 [Mine] Act and the standards and regulations he 

adopts under them. His views will not be treated like those 

of any other party, but will be treated with extra attention 

and respect * * *· [T]his weight may vary with the question 

before the Commission, especially where the Secretary has 

gained some special practical knowledge or experience through 

his inspection, investigation, prosecution, or standards-making 

activities * * *· 

The record offers no clear indication as to how the drafter of the memorandum reached the conclusion that the additional insulation "shall have a 

dielectric strength at least equal to the maximum applied voltage on the conductor." However, the record clearly shows that the wording in that paragraph 

of the memorandum does not set forth a logical interpretation as to the amount 

of additional insulation needed, as demonstrated by the testimony of two of 

MSHA's witnesses, Mr. Lawrence T. Filek and Mr. William S. Vilcheck. 
Mr. Filek.received a Bachelor of Science degree from the University of 

Illinois in 1951, and thereafter practiced his profession in both Government 

and the private sector. At the time of the hearing, he was in his fifth 

year of employment at MSHA's Denver Technical Support Center in Lakewood, 

Colo~ado. During cross-examination, he testified as follows: 

Q. Now, would it be a fair summary of this memorandum 

to say that what the Shepich-Nelson memorandum requires is 

that there be some insulation in addition to the jacketing 

on the power line? 

A. Yes. 

Q. And that that amount of insulation be, looking to the 

last sentence, at least equal to the maximum voltage applied 

on the conductor? 

A. What is implied there is that the dielectric 

strength of the insulation should be at least equal to the 

insulation -- the dielectric strength of the conductor, and 

not the applied voltage. 

Q. Well, let me rephrase the question. I think what 

the memorandum requires is that the additional insulation 

beyond the outer jacketing have a dielectric strength at 

least equal to the maximum voltage which would be applied 

to the power conductor; isn't that correct? 

A. I don't think so. 

Q. Oh? Well, could you restate for me then what you do 

believe it says? 

A. Well, I could restate for you what I believe it 

should say. 

Q. Well, I'm interested in what it says, Mr. Filek, not 

what you wish it said. 

A. Okay. This memorandum equates -- this memorandum 

equates dielectric strength, which is usually measured in' 

volts per thickness of insulation to voltage, and the units 

do not -- do not correspond; therefore, it cannot be an 

equality. 

(Tr. 113-114). 

Mr. Vilcheck received a Bachelor of Science degree in electrical 

engineering and a Master of Science degree in electrical engineering in 

1973 and 1975, respectively. Both degrees were received from West Virginia 

3701 
University. He received an emphasis on power systems during his studies 

for his Master's of Science Degree, and, at the time of the hearing, was in 

his second year of employment at MSHA's Pittsburgh Technical Support Center. 

Mr. Vilcheck testified as follows during cross-examination: 

Q. Does Joint Exhibit 18 say you should double it? What 

does that Joint Exhibit 18 say should be doubled? That is, 

is it the voltage applied to the conductor, or is it the 

manufacturer's rating on the insulation? 

A. Okay. Exhibit 18 to me says that -- it says, 

"Insulation in addition to the jacketing shall have a dielectric strength at least equal to the maximtnn voltage on the 

conductor." 

Larry says we are kind of comparing apples to oranges. 

I think it results from a nontechnical person writing this 

memorandum. Okay? 

You know, we can argue what his intent was or how we 

interpret it to be, but actually what he has verbatim I don't 

think makes a whole lot of sense. Okay? We know that he's 

trying to put additional insulation on the conductor, and I 

think what he means is at least equal to that of the insulation on the conductor, but I --

Q. But that's not what it says. 

A. What it says may be 

what his intent was either. 

(Tr. 170). 

I'm not sure what it says is 

Okay? 

The testimony of Mr. Filek reveals that the additional insulation will 

meet the requirements of 30 C.F.R. § 57.12-82 if it possesses the following 

traits: A piece of permanently fastened, nonabsorbent insulator should be 

placed between the cable and the waterline, telephone line, or air line 

(Tr. 107). The added insulation should have a dielectric rating at least 

equal to the dielectric rating of the cable when it was new (Tr. 110). 

This is not to say, of course, that other methods of insulation cannot 

be employed. The only conclusion that can be drawn from the record is that 

added insulation with the foregoing characteristics is, at a minimmn, sufficient to comply with 30 C.F.R. § 57.12-82. 

In view of the foregoing, and particularly because in these instances 

no additional insulation whatsoever was applied, it is found that the practices 

set forth in Citation Nos. 331733 and 331744 were violations of 30 C.F.R. 

§ 57.12-82. The applications for review will be denied in Docket Nos. DENV 

78-553-M and DENV 78-554-M, and a civil penalty will be assessed for these 

violations in Docket No. WEST 79-340-M. 
--

As noted previously in this decision, Citation No. 331747 alleges a violation of mandatory safety standard 30 C.F.R. § 57.12-10 in that several 

telephone lines were observed hanging with and touching energized powerlines. 

The cited mandatory safety standard provides as follows: "Telephone and lowpotential signal wire shall be protected, by isolation or suitable insulation, or both, from contacting energized power conductors or any other power 

source." 

The inspector's testimony reveals that the citation charges a violation 

of that portion of the regulation requiring telephone and low-potential signal wire to be protected, by isolation and/or suitable insulation, from contacting energized power conductors (see, e.g., Tr. 219, 251, 258). The 

phrase "or any other power source," as used in the regulation; refers to 

electrical switchboxes and items of a similar nature, but does not refer to 

a line (Tr. 258). 

As noted previously in this decision, the inspector testified that the 

telephone lines in question had jackets, ·and that the citation addresses the 

outer jackets of telephone lines touching the outer jackets of power cables. 

It is therefore clear that the telephone lines were not in contact with "power 

conductors" in view of the definition of "conductor" set forth at 30 C.F.R. 

§ 57.2. 

Accordingly, the application for review will be granted in Docket No. 

DENV 78-555-M, and the proposal for a penalty in Docket No. WEST 79-340-M 

will be dismissed as relates to Citation No. 331747. 

2. Evaluation of Civil Penalty Assessment Criteria 

The parties stipulated that the primary purpose of this litigation is 

to permit Climax and MSHA to resolve a conflict between them regarding the 

interpretation of the regulations at issue. The parties further stipulated 

that if violations are found to have occurred, then the civil penalties 

assessed by the Office of Assessments would be appropriate. The relevant 

proposed assessments are identified as follows: 

30 C.F.R. 

Citation No. Date Standard Assessment 

331733 7/27/78 57.12-82 $ 72 

331744 7 /27 /78 57.12-82 78 

Total: $150 

The record fully supports the assessment of civil penalties in the 

amounts proposed by the Office of Assessments. The absence of operator 

negligence is deemed of particular significance to this determination. 

The record reveals that Climax is a large operator, producing approximately 50,000 tons of ore per day; that Climax has no history of previous 

violations for wi1ich assessments have been paid during the period of time 

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prior to July 27, 1978 (Tr. 22-23); and that Climax demonstrated good faith 

in attempting rapid abatement (Tr. 21-22, 202-203, 213). No evidence was 

presented establishing that the assessment of civil penalties will affect 

Climax's ability to remain in business, and, accordingly, it is found that 

the assessment of civil penalties for Citation Nos. 331733 and 331744 will 

not affect Climax's ability to remain in business. Hall Coal Company, 

1 IBMA 175, 79 I.D. 688, 1971-1973 OSHD par. 15,380 (1972). 

The air lines and waterlines in the Climax Mine are grounded to the 

rails of the haulage tracks at 500-foot intervals (Tr. 320), and are supported at 6- to 10-foot intervals on supports attached to rock bolts driven 

into the rock (Tr. 339). The rock at the Climax Mine makes a very good 

~rounding medium (Tr. 339). Furthermore, the cables at issue in these proceedings were in satisfactory condition. Based upon these considerations, 

the design characteristics of the cables at issue in these proceedings and 

the voltages applied to the cables, Climax could have had some foundation 

for concluding that additional insulation was not necessary at the points 

where powerlines contacted waterlines, telephone lines and air lines because 

it could have concluded in good faith, although erroneously, that the 

objective of the regulation had been met •. Accordingly, it is found that 

Climax did not demonstrate negligence in connection with the practices 

described in the citations. 

The best available evidence indicates that no injuries have been sustained at the Climax Mine as a result of powerlines energizing waterlines, 

telephone lines or air lines (Tr. 297-298). In fact, Mr. Pupera, the electrical superintendent, had never heard of the AC system energizing a waterline or an air line at the Climax Mine, although he had heard of it occurring from other causes. He related approximately two or three occurrences 

over an 8-year period in which the trolley wire was knocked·down and achieved 

contact with a pipe. In view of these considerations, the characteristics 

of the jacketed and insulated cables at issue in these proceedings, and the 

specific electrical applications encompassed by the citations, it is found 

that the occurrence of the event against which the standard is directed was 

improbable. However, if the event did occurr, then all miners achieving proper conductive contact with the waterlines or air lines would be exposed to 

serious or fatal injury (see,~· Tr. 213). Accordingly, it is found that 

the violations were moderately serious. 

In view of the foregoing, Climax will be assessed civil penalties as 

set forth above. 

VI. Petitioner's Motion in Docket No. WEST 79-340-M to Withdraw the Proposal 

for a Penalty as Relates to Certain Citations 

MSHA filed a written motion during the hearing on March 11, 1980, to 

withdraw the proposal for a penalty as relates to six citations. The motion 

states, in part, as follows: 

1. From August 7, 1978, to December 27, 1978, the following citations were issued to respondent: 

3704 
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(a) No.· 333300 for an alleged violation of 30 C.F.R. 

§ 57.12-10; 

(b) No. 333331 for an alleged violation of 30 C.F.R 

§57.12-1; 

(c) No. 333242 for an alleged violation of 30 C.F.R. 

§ 57.12-25; 

(d) No. 333246 for an alleged violation of 30 C.F.R. 

§ 57.12-13; 

(~) No. 333335 for an alleged violation of 30 C.F.R. 

§ 57.12-13; 

(f) No. 333336 for an alleged violation of 30 C.F.R. 

§ 57.12-13. 

2. On July 25, 1979, the Federal Mine Safety and Health 

Administration, Office of Assessments, assessed proposed penalties for each of the alleged violations set forth in the 

aforesaid citations, in the following amounts: 

Citation No. 

333300 

333331 

333242 

333246 

333335 

333336 

Assessed 

Proposed Penalty 

$255.00 

$325.00 

$ 56.00 

$325.00 

$325.00 

$325.00 

3. There is insufficient evidence to establish a violation of the aforesaid mandatory standards as the only 

witness who can testify to the conditions of the alleged 

violations is permanently unavailable to testify at the 

hearing. 

In view of the representations set forth above, an order will be entered 

granting MSHA's motion. 

VII. Conclusions of Law 

1. Climax Molybde.-ium Company and its Climax Mine have been subject to 

the provisions of the 1977 Mine Act at all times relevant to these 

proceedings. 

2." Under thP. 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings. 

3705 

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3. Federal mine inspector James Atwood was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of 

Citation Nos. 33173"3, 331744 and 331747. 

4. The practices set forth in Citation Nos. 331733, and 331744 were 

in violation of mandatory safety standard 30 C.F.R. § 57.12-82. 

5. The practice described in Citation No. 331747 was not a violation 

of mandatory safety standard 30 C.F.R. § 57.12-10. 

6. All of the conclusions of law set forth previously in this decision 

are reaffirmed and incorporated herein. 

VIII. Proposed Findings of Fact and Conclusions of Law 

All briefs filed in these proceedings, insofar as they can be considered 

to have contained proposed findings and conclusions, have been considered 

fully, and except to the extent that such findings and conclusions have been 

expressly or impliedly affirmed in this decision, they are rejected on the 

ground that they are, in whole or in part,· contrary to the facts and law or 

because they are immaterial to the decision in these cases. 

ORDER 

IT IS ORDERED that the February 25, 1980, determination in Docket No. 

WEST 79-340-M granting MSHA's motion to withdraw the proposal for a penalty 

as relates to Citation Nos. 333241, 333339 and 333340 be, and hereby is 

AFFIRMED. 

IT IS FURTHER ORDERED that MSHA's March 11, 1980, motion to withdraw the 

proposal for a penalty in Docket No. WEST 79-340-M as relates to Citation 

Nos. 333300, 333331, 333242, 333246, 333335 and 333336 be, and hereby is 

GRANTED. 

IT IS FURTHER ORDERED that the applications for review irt Docket Nos. 

DENV 78-553-M and DENV 78-554-M be, and hereby are, DENIED, and that such 

application for review proceedings be, and hereby are, DISMISSED. 

IT IS FURTHER ORDERED that the application for review in Docket No. 

DENV 78-555-M be, and hereby is, GRANTED, and that Citation No. 331747 be, 

and hereby is VACATED. The proposal for a penalty in Docket No. WEST 

79-340-M is herewith DISMISSED as relates to such Citation. 

IT IS FURTHER ORDERED that Climax be, and hereby is, ASSESSED civil 

penalties in the amount of $150, as set forth in Part V(B)(2), supra, and 

that Climax pay such civil penalties within 30 days of the date of this 

decision. 

~ n • Cook 9-.~ ~ ~ nistrative Law Judge 
Distribution: 

Charles w. Newcom, Esq., Sherman & Howard, 2900 First of Denver Plaza, 

633-17 Street, Denver, Colorado 80202 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Certified 

Mail) 

Mr. David Jones President, and James Kasie, Law Clerk, Oil, Chemical 

and Atomic Workers International Union, Local No. 2-24410, P.O. 

Box 949, Leadville, Colorado 80461 (Certified Mail) 

James F. Engelking, Esq., W. Michael Hackett, Esq., 13949 West Colfax 

Avenue, Golden, Colorado 80202 (Certified Mail) 

Mr. Edwin Matheson, Chairman, International Brotherhoood Electrical 

Workers, Local Union No. 1823, P.O. Box 102, Minturn, Colorado 81645 

(Certified Mail) 

Ms. Sylvia Balltrip, Office and Professional Employees International 

Union, Local No. 410, P.O. Box 1179, Leadville, Colorado 80461 

(Ce rt if ied Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

ttINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 1 8 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. LAKE 80-192-M 

A.C. No. 33-03760-05001 

Dorr Street Pit Mine 

MAUMEE HAULERS AND EXCAVATORS, 

Respondent 

DECISION 

Appearances: Marcella L. Thompson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for 

Petitioner; 

Robert H. Parker, Vice President, Maumee Haulers 

and Excavators, Swanton, Ohio, for Respondent. 

Before: Judge Lasher 

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

and Health Act of 1977~ A hearing on the merits was held in Toledo, Ohio, 

on August 19, 1980. After considering evidence submitted by both parties 

and proposed findings of fact and conclusions of law prof erred during 

closing argument, I entered an opinion on the record. 1/ My bench decision 

containing findings, conclusions, and rationale appears below as it appears 

in the transcript, other than for minor corrections of grammar and punctuation and the excision of obiter dicta: 

This proceeding arises upon the filing of a petition for 

assessment of penalty by the Secretary of Labor on March 28, 

1980, pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 820(a) • 

. The Secretary seeks penalties against Respondent for the 

commission of two violations cited in Citation Nos. 368929 

and :68930, which were issued on July 18, 1979. Citation 

No. 3~8929 alleges an infraction of 30 C.F.R. § 5(.9-ll 

I./ Tr. 104-112. 

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and Citation No. 368930 alleges an infraction of 30 C.F.R. 

§ 56.11-2. These two citations involved the s,ame Insley 

crane, which was observed on July 18, 1979, in the Respondent's Dorr Street Pit and was seen by-the inspector to have 

the following allegedly violative conditions present: First, 

that the window in the side door of the crane was cracked and 

broken; and, second, that a handrail was not provided on the 

elevated walkway on the crane. 

The Respondent, in its response to my prehearing order, 

indicated two critical issues, one of which I find is ultimately dispositive of this case. The first issue raised by 

Respondent is that the crane in question was normally operat~d by a part-owner of the corporation, not an employee. 

Ui.e second issue was that the machine in question (the crane) 

was out of service and was not in use at the time the inspector cited the allegedly violative conditions. The Respondent 

admits that the two violations alleged, that is, the window 

violation and the handrail violations, did exist. Accordingly, 

I preliminarily conclude that the conditions described in the 

two subject citations did exist. This, of course, in view of 

the questions raised by Respondent, does not, in and of 

itself, constitute a finding that a violation of the Act did 

in fact occur. 

Also preliminarily, I note that the record clearly indicates that the Respondent had no history of previous violations, and in this connection I further note that the two 

citaions were issued upon the first inspection of the sand 

pit in question. In addition, I preliminarily find, based 

upon the stipulation of the parties, that any penalty which I 

might assess in this case, up to the proposed initial assessment of MSHA, would not affect the Respondent's ability to 

continue in business. The parties also indicated that the 

Respondent is a small operator, so there is no (conflict) 

with respect to that traditional penalty assessment factor. 

In view of my subsequent finding, I find it unnecessary to 

evaluate the evidence with respect to negligence and gravity. 

The Respondent, in closing argument, reiterated the two 

questions which had been raised previously in its prehearing 

submission. The second such issue being that since the cited 

machine was operated only by the owners of the corporation and not 

by employees, the jurisdiction of the Secretary, and I would 

presume the jurisdiction of the Federal Mine Safety and Health 

Review Commission, would not attach. I find no merit to this 

contention. The law is relatively clear and settled on the 

point that a family-owned and family-operated business does 

come within the (coverage of the) Act. Also, the intent of 

Congress in enacting this protective legislation extends to 

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any person, not just miners or employees of these kinds of 

companies. Acco~dingly, I find that the Respondent does come 

within the coverage of the Act, is subject to regulation by 

MSHA under the Act, and that this entire proceeding is subject to the review function of the Federal Mine Safety and 

Health Review Commission. See Marshall v. Kraynak, 604 F.2d 

231 (3rd Cir. 1979). The fact that the three Parker brothers 

actually own and engage in some of the work of the mine in 

question is no bar to their inclusion within the jurisdiction 

of the Act and I further find that they are miners the same 

as are their employees. 30 U.S.C. § 820(d)(g). provides that 

a "miner" means "any individual working in a coal or other 

mine." See Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980). 

In its closing argument the Respondent also contended 

that the two citations were improperly issued based upon the 

following (stated) logic: "We feel that a machine that is 

visually out of service should not be subject to the issuance 

of a citation," or words to that effect. I do find merit in 

this last contention. The evidence indicates that on July 18, 

1979, the inspector, Michael J. Pappas, observed the Insley 

crane in the pit. Even though there were no tags on this 

piece of equipment indicating that it was not to be used, the 

inspector knew the engine was out of service. The investigation by MSHA, both at the time and subsequently, was not such 

as to indicate that the crane was being operated in the 

allegedly violative condition described in the two citations. 

Nor was there any investigation which would indicate that the 

crane had ever operated in that condition. There is no evidence from employees of the Respondent which indicate that 

the machine, either before July 18, 1979, or after July 18, 

1979, operated in the condition described in the two citations. The inspector was unable to testify that he had ever 

seen the crane in operation at all. 

The president of Respondent, Mr. Ike Parker, testified 

that he had purchased the subject crane some 3 or 4 months 

earlier, that is, prior to July 18, 1979, and that it had 

been broken down and out of repair most of the time in 

between, and that on July 18, 1979, a new crane was on the 

premises and being operated by his brother, Conrad Parker. 

Ike Parker also indicated that he was negotiating with 

Columbus Equipment Company regarding the purchase of this new 

Insley crane and that in order to obtain a better trade-in 

price for the old crane, which was the subject of the two 

citations, he was attempting to -- and here I paraphrase --

improve the performance of the engine. Ike Parker indicated 

that the whole back end of the old crane was out. Inferring 

from his testimony, I find it was in an obvious state of condition to indicate to anyone that it was not in operating 

condition. 

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Section 102(b)(3)(h)(l) of the Act (provides) that a 

"coal or other mine," can include equipment and machines. 

It also indicates that for such equipm~nt or machines to be a 

mine that they, insofar as applicable here, must be "used in, 

or (are) to be used" in the work of extracting minerals from 

their natural deposits." The evidence in this record clearly 

indicates that the machine was out of service at the time the 

inspector issued the citations. Thus, I find that the equipment in question was not within the definition so as to be 

subject to the issuance of citations.and withdrawal orders. 

Therefore, I find that the position of Respondent in this case 

is meritorious and that the two citations in question were 

improperly issued. 2/ Accordingly, it is ordered as follows: 

Citation Nos. 368929 and 368930, issued July 18, 1979, are 

vacated, and this proceeding is dismissed. 

~~6~/(·~f',fj, Michael A~ Lasher, Jr., Judge 

Distribution: 

Marcella L. Thompson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1240 East 9th Street, Room 881, Cleveland, OH 44199 

(Certified Mail) 

Robert Parker, Vice President, Maumee Haulers and Excavators, 

Route No. 5, Box 222, Swanton, OH 43558 (Certified Mail) 

]:_/ See Plateau Mining Company, 2 IBMA 303 (1973). 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

MAUDLIN CONSTRUCTION COMPANY, 

Respondent. 

APPEARANCES: 

CIVIL PENALTY PROCEEDINGS 

DOCKET CENT 80-114-M 

A/O NO. 13-01910-05001 

DOCKET CENT 80-121-M 

A/O NO. 13-01160-05001 

DOCKET CENT 80-141-M 

A/O NO. 13-01848-05001 

DOCKET CENT 80-142-M 

A/O NO. 13-01349-05001 

(Consolidated) 

DOCKET CENT 80-201-M 

A/O NO. 13-01349-050~ 

DOCKET CENT 80-30-M 

A/O NO. 13-01802-05001 

Mines: Clay County or Stellish Pit, 

Solberg Pit, Clark Pit, 

Mortvedt Pit and Nelson Pit 

DECISION 

Eliehue C. Brunson, Esq., Office of the Solicitor 

United States Department of Labor, 911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

for the Petitioner, 

Stewart H. M. Lund, Esq., 

P 0 Box 634, Webster City, Iowa 50595 

for the Respondent. 

Before: Judge Virgil E. Vail 

I. Procedural Background 

The above-captioned civil penalty proceedings were brought pursuant to 

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

§ 820(a) [hereinafter referred to as "the Act"]. The proposals for penalties 

allege sixteen violations of safety standards. 

Pursuant to notice, a hearing on the merits was held in Fort Dodge, Iowa 

on May 20 and 21, 1980. Raymond C. Weston, Sr., Carl L. Smith and Charles E. 

Peaton, federal mine inspectors, testified on behalf of the petitioner. Edward 

David Ammala, a supervisor for the Mine Safety and Health Administration, 

testified for the petitioner. Charles P. Becker and Harlan Von Seggren 

testified on behalf of the respondent. The parties filed post hearing briefs. 

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II. Stipulations 

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

stipulations: 

1. The mine inspectors who issued the citations were employees of the Mine 

Safety and Health Administration and authorized representatives of the Secretary 

of Labor. 

2. The Administrative Law Judge has jurisdiction of this ~ase pursuant to 

section 107 of the Act. 

3. The proposed penalties would not adversely affect the respondent's 

ability to continue in business. 

4. The respondent is a medium-sized operator in the State of Iowa. 

III. Motions 

Counsel for the Petitioner moved that the record be left open after the 

hearing in order to allow him an opportunity to submit a computer printout sheet 

from the Office of Assessments showing respondent's record of past violations. 

The undersigned ordered that the record was to be left opened until such time as 

respondent's counsel received a copy of the printout. Respondent, in its post 

hearing brief, renewed its objection to the admission of the computer printout 

sheet on the grounds that respondent did not have the opportunity to 

cross-examine witnesses as to the history or relevancy of the proposed exhibit. 

Respondent's objection is hereby sustained and the exhibit will not be admitted 

into evidence. Therefore, the penalties assessed herein are based on the 

assumption that the respondent had no history of any violations prior to the 

violations alleged in the present cases. 

On August 15, 1980, respondent filed a motion to strike petitioner's post 

hearing briefs. Respondent claims that the petitioner's late filing of the 

briefs has prejudiced the respondent. I disagree. Respondent has failed to 

demonstrate any prejudice. Therefore, its motion is denied and petitioner's 

briefs and the arguments contained therein have been considered. 

IV. Settlement Approvals 

In the case of Secretary of Labor v. Clay County Highway Department, 

CENT 80-30-M, Maudlin Construction Company, as the leasee of the Stellish Pit, 

accepted the defense in this matter. This case involved three alleged violations. Respondent agreed to, and has in fact already paid the proposed penalty 

of $32.00 for citation no. 176765. Citation Nos. 176766 and 176767 were dismissed by the petitioner on the ground that the accuracy of the test results 

could not be proven. 

In docket number CENT 80-114-M, the respondent agreed to affirm citation 

no. 176800 and pay the proposed penalty in the amount of $22.00. 

The proposed settlement agreements are hereby approved by the undersigned. 

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V. Discussion 

The five remaining cases involve four different mine sites, the Mortvedt, 

Solberg, Nelson and Clark Pits. The initial inspections at these pits took 

place between July 9, 1979 and September 18, 1979. 

CENT 80-141-M and CENT 80-114-M 

Cases CENT 80-141-M and CENT 80-ll4-M involve six citations all alleging a 

violation of mandatory safety standard 56.5-50.1 These citations, involving 

similar issues of fact and law, will be dealt with together. 

1/ 56.5-50. Mandatory. (a) No employee shall be permitted an exposure to 

noise in excess of that specified in the table below. Noise level 

measurements shall be made using a sound level meter meeting specifications 

for type 2 meters contained in American National Standards Institute (ANSI) 

Standard SI .4-1971, "General Purpose Sound Level Meters," approved 

April 27, 1971, which is hereby incorporated by reference and made a part 

hereof, or by a dosimeter with similar accuracy. This publication may be 

obtained from the American National Standards Institute, Inc., 1430 

Broadway, New York, New York 10018, may be examined in any Metal and 

Nonmetal Mine Health and Safety District or Subdistrict Office of the Mine 

Safety and Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure: 

8 

6 

4 

3 

2 

1-1/2 

I 

1/2 

1/4 or less. 

Sound level dBA, 

slow response 

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or impulsive noises shall 

not exceed 140 dB, peak sound pressure level. Note. When the daily noise 

exposure is composed of two or more periods of noise exposure at different 

levels, their combined effect shall be considered rather than the 

individual effect of each. 

If the sum 

then the mixed exposure shall be considered to exceed the permissible 

exposure. Cn indicates the total time of exposure at a specified 

noise level, and Tn indicates the total time of exposure permitted 

at that level. Interpolation between tabulated values may be determined 

by the following formula: 

Log T = 6.322-0.0602 SL 

Where T is the time in hours and SL is the sound level in dBA. 

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The following issues pertain to citation nos. 175215, 175217, 175216, 

175319, 175320 and 176783: 

1. Did the testing procedures employed by the mine inspectors in 

measuring the noise levels conform to the procedures, as set forth in 

56.5-50(a), and 

2. Were the instruments properly calibrated in order to assure 

accurate noise level readings. 

Respondent disputes the accuracy of the testing procedures used by the 

inspectors, attacking them in several ways. Only respondent's first two 

arguments-need to be examined in order to reach a decision. 

First, respondent argues that a sound level meter must be used to 

check or convert the dosimeter readings. (Respondent's brief at p. 4) 

Contrary to respondent's argument, I have found nothing in the Act that 

requires that sound level meters be used in conjunction with dosimeters. 

The applicable standard, found at 30 C.F.R. 56.5-50(a), requires that a 

sound level meter or a dosimeter with similar accuracy be used in testing 

noise levels. While respondent's expert, Harlan Von Seggren, testified 

that he would not use a DuPont 376 dosimeter alone for determining noise 

levels, nothing in the record supports a conclusion that this type of 

dosimeter cannot be used to accurately determine noise levels. 

Secondly, respondent alleges that the test results are inaccurate due 

to the length of time between when the dosimeters were calibrated and when 

the tests were performed. Citations 175215, 175216 and 175217 were all 

issued on August 17, 1979 by Raymond Weston, Sr .• Mr. Weston testified 

that he calibrated the instruments on July 20, 1979, a period of 27 days 

prior to the inspection (Tr. 39). Citations 175319, 175320 and 176783 were 

issued on July 25, 1979 by Carl L. Smith. The dosimeters used by Smith 

were calibrated on July 6, 1979, 18 days prior to testing (Tr. 220). 

The inspectors testified that they had been instructed that the 

dosimeters were to be calibrated every 30 days and that the instruments 

should be calibrated prior to an inspection (Tr. 243). However, neither 

inspector felt that it was necessary to calibrate the instruments the day 

before or the day of the inspection. 

Edward Ammala, supervisory inspector for the western half of Iowa, 

stated that one of his duties as a supervisor is to review the citations 

that have been issued. He stated that he checks for any discrepancy 

between the sound level meter readings and the results of the 

dosimeter tests. In doing so he claimed that he c~n tell by the dBA level 

approximately what the dosimeter reading will be (Tr. 268). He therefore 

concluded that the dosimeter readings in the citations in question were 

accurate. 

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I find the testimony of respondent's expert to be more credible than 

that of the Petitioner's witnesses. Harlan Von Seggren stated that, in 

order to assure an accurate reading, a dosimeter must be calibrated 

immediately prior to conducting the test (Tr. 153). According to Mr. Von 

Seggren, a dosimeter is a very sensitive piece of equipment and can easily 

be affected by temperature changes, movement and other outside influences. 

In his opinion, the lapse of time between the calibration of the 

instruments and the actual tests would invalidate the results. Petitioner 

failed to offer any testimony to refute the statements of Mr. Von Seggren. 

_ Petitioner's explanation for not calibrating the dosimeters closer 

to the time when the tests were going to be performed was that it takes 

approximately twenty minutes to calibrate each machine. I find this 

explanation unacceptable. Section 104 of the Act requires that when a 

violation is found that a citation must be issued and a penalty assessed. 

It is grossly unfair to operators to subject them to testing procedures, 

the accuracy of which cannot be proven, in order for the inspectors to save 

time. The burden of proving the accuracy of test results is with the 

Petitioner. The Petitioner having failed in his burden, the citations are 

hereby vacated. 

CENT 80-201-M 

This case involves three citations. Citation Nos. 176795 and 176796 

both allege a violation of mandatory safety standard 30 C.F.R. 56.14-1.2 

Citation No. 176797 alleges that respondent violated mandatory safety 

standard 30 C.F.R. 56.11-1.3 

At the conclusion of Petitioner's evidence, respondent moved to 

dismiss the citations on the ground that the government had failed to 

establish a prima facie case. Respondent did not present any evidence nor 

offer any testimony as to these citations. At the time of the hearing, I 

reserved my ruling on respondent's motion until I had an opportunity to 

review the record. Having done so, I conclude that respondent's motion to 

dismiss should be granted and the citations dismissed. 

The only testimony offered by Petitioner was that of the inspector who 

issued the citations. The inspector could not identify the photographs 

that he had allegedly taken and his notes were contradictory (Tr. 319 and 

326). 

The issuance of a citation is insufficient to establish a prima facie 

case. Petitioner having failed to offer any credible testimony to prove 

the existence of the alleged violations they are hereby dismissed. 

2/ 56.14-1. Mandatory. Gears; sprockets; chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons, shall be guarded. 

3/ 56.11-1. Mandatory. Safe means of access shall be provided and 

maintained to all working places. 

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CENT 80-121-M 

Issues: 

1. Whether or not the front end loader was equipped with an operative 

back up alarm and, if so, 

2. Did this defect affect the safety of miners. 

Discussion 

Citation 175313 alleges that respondent violated mandatory safety 

standard 30 C.F.R. 56.9-2 4 by failing to have an operative back up 

alarm on a front end loader. 

The uncontradicted testimony of Carl Smith, the inspector who issued 

the citation, was that the front end loader had been equipped with a back 

up alarm; however, at the time of his inspection on July 9, 1979 it was 

inoperative: 

Respondent contends that there was no violation, even though the alarm 

was inoperative, because the alarm was an additional safety feature 

installed by the respondent, which was not required by the Act. I 

disagree. The fact that the alarm was inoperative subjects the respondent 

to liability under 30 C.F.R. 56.9-2, unless there is a showing that even 

though the alarm was not working it would not affect the safety of 

respondent's employees. 

Witnesses for both parties testified that the operator of the loader 

would not have a clear view of someone on the ground (Tr. 334 and 355). 

Although the testimony of the witnesses differed as to how far the view of 

the operator would be obstructed, it is unrefuted that there was a blind 

spot. Based on this fact and the testimony of Mr. Smith that he observed 

other employees working in the inunediate vicinity, I find that a violation 

did occur. 

Penalty 

The likelihood of an injury resulting from this violation was remote 

since the loading process was confined to a small area and most of the 

employees in the loading area would be in trucks. However, if an accident 

were to occur it could be of a serious nature. The respondent acted in 

good faith by trying to abate the citation immediately. For these reasons, 

I find that a penalty of $40.00 is appropriate. 

4/ 56.9-2 Mandatory. Equipment defects affecting safety shall be 

corrected before the equipment is used . 

3717 I 

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CENT 80-142-M 

~itation 176794 alleges that respondent violated 30 C.F.R. 56.12-85 

by failing to provide a bushing on the conductor where it entered the 

distribution box on a light. The uncontradicted facts are that the wires ·1 

were not equipped with a bushing, but that they were insulated with tape. 

The power source for the light was a portable generator, that in turn 

received its power from a diesel engine (Tr. 358). Therefore, there was ¥ 

never any reason for any employees to b~ in the vicinity of the lightpole 

(Tr. 359) •. 

I find that a violation did occur. Although respondent argued that 

the tape eliminated any shock hazard, the standard requires that when wires 

pass through metal frames the holes nrust be bushed. 

Penalty 

I find that respondent's negligence and the gravity of the violation 

were low ·based on the evidence presented that the wires had been insulated. 

It appears there was only a slight chance of anyone being injured since it 

was not necessary for anyone to be near the light in order to turn it off 

or on •. The respondent promptly abated the citation. For the reasons 

stated herein, I reduce the proposed penalty and conclude that a penalty of 

$10.00 is appropriate under the circumstances. 

In citation no. 176799 the petitioner alleges a violation of safety 

standard 30 C.F.R. 56.4-18,~ based on the inspector's statement that 

oxygen cylinders were being stored in the parts trailer where oil and 

grease containers were also kept (Tr. 313). According to Mine Inspector 

Carl Smith, this condition created a fire hazard and would add to the 

intensity of a fire if one were to occur. 

I find that a violation did occur. Respondent did not deny that the 

oxygen was being stored in the same trailer containing oil and gas cans. 

Respondent contends that a citation should not have been issued since the 

oxygen bottles were immediately removed. The Act provides that when a 

violation is found to have occurred that a citation is to be issued. 

Respondent's promptness in abating the citation goes to the company's good 

faith. Also, the fact that the trailer was parked away from the area where 

the employees were working and that they would only be in the area to pick 

up supplies goes to the gravity of the violation and not to whether a 

violation did in fact occur. 

5/ 56.12-8 Mandatory. Power wires and cables shall be insulated 

adequately where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, and electrical 

compartments only through proper fittings. When insulated wires, other 

than cables, pass through metal frames, the holes shall be 

substantially bushed with insulated bushings [Section 56.12-8 made 

mandatory and revised at 42 FR 29420, June 8, 1977, effective July 8, 

1977]. 

6/ 56.4-18 Mandatory. Oxygen cylinders shall not be stored in rooms or 

areas used or designated for oil or grease storage. 

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Penalty 

Under the circumstances, as set forth above, I find that a penalty of 

$28.00 is appropriate. 

Findings of Fact 

1. Seventeen citations were issued to the respondent 

1979 and September 18, 1979 at five different mine sites. 

alone do not constitute harassment on the ·part of MSHA, as 

respondent. 

between July 9, 

These facts 

alleged by the 

2. Petitioner failed to prove the accuracy of the dosimeter 

readings. 

3. Petitioner failed to establish a prima facie case with regard to 

the three citations contained in Docket No. CENT 80-201-M. Therefore, 

respondent's motion to dismiss is granted. 

4. The back-up alarm on the front end loader was inoperative. This 

presented a safety hazard for employees working in the area, since the 

operator would be unable to see persons walking behind the loader. 

5. The hole in the conductor box was not bushed as required by 

mandatory safety standard 30 C.F.R. 56.12-8. 

6. Oxygen cylinders were being stored in the same trailer as containers of oil and grease thus presenting a fire hazard. 

ORDER 

Case Citation No. Assessment 

CENT 80-30-M 176765 $ 32.00 

CENT 80-114-M 176800 $ 22.00 

CENT 80-121-M 175313 $ 40.00 

CENT 80-142-M 176794 $ 10.00 

176799 $ 28.00 

$ 132.00 

It is hereby ORDERED that Respondent pay the penalties totaling 

$ 132.00 within thirty (30) days from the date of this decision. 

3719 

Virgil£'.)!. 

v~L/~ Vail 

Administrative Law Judge 

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Distribution: 

Eliehue C. Brunson, Esq., Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Stewart H. M. Lund, Esq. 

P 0 Box 634 

Webster City, Iowa 50595 

3720 
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), 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 8 1980 

Civil Penalty Proceeding 

Docket No. VA 80-85 

Petitioner A.C. No. 44-04048-03014V 

No. 1 Mine 

LITTLE EGYPT COAL COMPANY, 

Respondent 

DECISION 

Appearances: Catherine M. Oliver, Esq., Office of the Solicitor, 

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

for Petitioner; 

Harold Jackson, Little Egypt Coal Company, Grundy, 

Virginia, for Respondent. 

Before: Judge Melick 

Hearings were conducted in this case in Abingdon, Virginia, on November 5, 

1980, following which I rendered a bench decision. That decision, which I 

affirm at this time, is set forth below with only nonsubstantive corrections. 

This proceeding is, of course, before me under section 

105(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815, the "Act." The gene.ral issues are whether 

the Little Egypt Coal Company (Little Egypt) has violated 

the regulatory standards cited in the petition filed by the 

Department of Labor, Mine Safety and Health Administration 

(MSHA) in this case, and, if so, what is the appropriate 

penalty to be paid by Little Egypt. 

Section llO(i) of the Act sets forth the criteria that 

I should consider in arriving at an appropriate penalty for 

violations under the Act, namely: the operator's history 

of previous violations, the appropriateness of the penalty 

to the size of the business of the operator charged, whether 

the operator was negligent, the effect on the operator's 

abililty 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 the violation. 

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Now, I observe that the one citation before me is a section 104(d)(l) citation and the two orders before me are 

orders of withdrawal under section 104(d)(l). These ordinarily require for their validity certain specific findings 

regarding "unwarrantable failure" and "significant and substantial." Since this is a civil penalty proceeding, however, 

only the fact of the violation and the relevant criteria under 

section llO(i) of the Act will be considered. 

Now, going to the one citation before me, Citation No. 

696006, I find that the violation did occur as charged. The 

citation charg~s that dry, loose coal was permitted to accumulate approximately 35 feet outby Survey Station No. 2506, 

located in the No. 4 entry intake airway, adjacent to the 

belt entry. The "accumulation" was approximately 4 feet high, 

20 feet wide, and 60 feet long. 

The cited standard (that is, 30 C.F.R. § 75.400) reads as 

follows: "Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal and other combustible materials shall be cleaned up and not be permitted to accumulate 

in the active workings or on electrical equipment therein." 

MSHA inspector Harold Burnett testified here today--and 

I find his testimony to be completely credible and on essential points uncontradicted--that on July 31, 1979, in the 

course of a regular inspection with Mr. Ball, another MSHA 

inspector, that he did in fact observe in the No. 4 intake 

entry the described stockpile of coal. He measured that pile 

of coal using a 50-foot rule and found the size as reported 

in the citation. His testimony is undisputed, so I find that 

the size of the material to be as it was cited. 

Now, with respect to the combustibility of this material, 

I have some problems with Mr. Burnett's testimony because at 

one point he says, "My visual observations were not sufficient to determine the combustibility," and at another point 

he testified that in essence those observations were sufficient from which he could conclude that the material was 

combustible. Burnett did testify, however, that the material 

which looked like coal was indeed black, was in fact dry, 

and was in fact not intermixed with observable noncombustibles such as rock dust or pieces of cement block or 

sundry other non~ombustible materials. 

The equivocal testimony is, in any event, obviated by the 

laboratory tests on the samples taken by Mr. Burnett. The 

samples, taken at each end of this pile and one in the middle, 

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showed only 30, 27, and 23 percent incombustible material, 

respectively. These tests therefore demonstrate the presence 

of a rather high percentage of combustible material. 

Now, even if you do not accept Burnett's testimony regarding the combustibility of this material, Mr. Jackson himself 

(the owner of Little Egypt) testified that this stockpile was 

treated the same as any other coal that is shipped out of his 

mine, that is, it was sold as part of its mine product. 

Clearly, if this "accumulation" did not consist of combustible materials to a significant degree, it could not have 

been so disposed. 

Now, from the vast size of the stockpile alone, which was 

4 feet high, 20 feet wide and 60 feet long, I conclude also 

that it was indeed an "accumulation" within the ambit of 

recent decisions by the Mine Safety and Health Review 

Commission. Secretary v. Old Ben Coal Company, 1 FMSHRC 1954 

(December 1979); Secretary v. Old Ben Coal Company, 2 FMSHRC 

2806 (October 1980). Now, indeed, even though the Commission 

has indicated that it is not necessary in proving a violation 

of this standard that some time have had elapsed while that 

"accumulation" remains, it is apparent from Jackson's own 

testimony that the "accumulation" had in fact existed since 

the previous day. 

Now, I also find that Little Egypt was grossly negligent 

in allowing this coal to accumulate as it did. Jackson 

admitted that beginning in the middle of July 1979, because 

his union employees were supposed to be working only parttime 

on alternate days, he could not ship his coal out of the 

mine every day of the week as he desired. As a result, he 

found it economically necessary to stockpile the coal inside 

the mine for short periods of time. It was therefore a company policy to keep coal accumulated at least for that 1-day 

period or until such time as the coal could be shipped out. 

So I find that clearly the operator not only knew that this 

accumulation was present but in fact actively condoned maintaining such accumulations. As further evidence of the 

operator's negligence in this case, I note that Jackson admittedly had two "accumulations" in the mine and that although 

he had two scoops available, he used only one for cleanup 

while he continued to use the other for production. 

Now, the condition did present a hazard and this testimony, again, is essentially uncontradicted that combustible 

materials such as this could be ignited and could cause fire 

or an explosion not only in the immediate section but the 

entire mine and there were potential, if not then existing, 

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sources of ignition not far away. Burnett testified that 

there were electrical cables in an adjacent entry some 60 to 

70 feet away, that there was a battery-operated scoop operating as close as 20 feet to the accumulation, and that there 

was a supply station some 40 or 50 feet from the accumulation 

in which timber, oil, and other combustible materials were 

stored. Explosives were also stored in the mine. Of course, 

the seven or eight men who were working in the mine at that 

time could be killed by any resulting explosion or fire. 

The degree of hazard is somewhat reduced by the fact that 

no defects were found in the cables and no permissibility violations were found on the equipment. Moreover, this mine has 

no history of methane problems and on the date of the inspection no methane was detected. I have taken these factors into 

consideration. 

Now, with respect to the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after 

notification of the violation, the testimony is that indeed 

the condition which was cited at 10:15 a.m. was abated by 

9 o'clock the next day. The foreman stopped all production 

in the mine and had two scoops immediately clean up the 

accumulation. However, as Inspector Burnett points out the 

operator really had no choice but to clean up the condition 

because he would not otherwise have been permitted to continue mining. 

Order No. 696007 charges that roof-bolt test holes had 

not been drilled at 15-foot intervals, beginning approximately 80 feet inby Survey Station No. 2506 located in the 

No. 4 entry on the 001 section, and extending inby to the 

working faces of the Nos. 4 through 1 entries and connecting 

crosscuts for a distance of approximately 300 feet. 

The cited standard, 30 C.F.R. § 75.200, deals essentially 

with the requirements for filing and having an approved roofcontrol plan in effect. However, that standard has been 

interpreted by the former Interior Board of Mine Operations 

Appeals and various administrative law judges in the Mine 

Safety and Health Review Commission, including myself, to 

require also that the operator comply with his roof-control 

plan. That is the interpretation I shall follow here. 

Now, that part of the roof-control plan cited here 

appears on Page 7, Item 9 of Exhibit D, and states as follows: 

In each active working place where roof bolts 

are installed during a production shift at least 

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one roof bolt hole shall be drilled to the depth of 

at least twelve inches above the anchorage horizon 

of the bolts being used to determine the nature of 

the strata. Such test holes shall be drilled at 

intervals not to exceed fifteen feet, and the test 

holes shall either be left open for examination or 

a bolt length equal to or greater than the required 

test hole depth may be installed and tightened. 

Inspector Burnett, again without contradiction, testified that indeed the condition that was cited did in fact 

exist. The violation is therefore proven. Burnett conser-

-vatively estimated that even assuming the best of mining 

conditions it would take approximately 4 or 5 days with one 

shift operating to progress 300 feet in a mine such as the 

Little Egypt Mine. Since the test holes had not been driven 

over that distance it is apparent that the cited condition 

had existed for at least 4 or 5 days. The fact that the condition existed for such a long period of time indicates that 

the operator was also negligent. This violation should have 

been detected in the course of the preshift and onshif t examinations over this 4- or 5-day period. I also consider in 

terms of negligence the fact that this mine had indeed been 

cited before (and this is conceded by Mr. Jackson here today) 

for violations of the same nature. 

Now, I can sympathize to some extent with the operator's 

problem. I take into consideration that his roof-bolting 

machine operator was negligent in failing to perform a duty 

that he had been instructed to perform and in fact had been 

previously reprimanded for failing to perform in the past. 

However, that does not exonerate the foreman and the mine 

operator from liability for this type of violation. Indeed, 

if this same violation had occurred in the past, the operator 

had perhaps an increased duty to see that the same violation 

did not occur again. 

The hazard in this situation was serious because the 

test holes are used to evaluate roof conditions and if indeed 

the roof-bolting machine operator is not performing these 

tests, the roof bolts that he is implanting could be of no use 

at all because defects may very well exist in the strata just 

beyond the reach of his bolts. Of course, the danger present 

here is from roof falls causing death or serious injuries 

to anyone working on that section. 

I note that this condition was abated within the time 

allotted but, again, I observe the operator really had no 

choice if he wanted to continue mining. 

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I find also that the violation in Order No. 696003 has 

been proven as charged. The order states as follows: 

"The No. 4 entry has been driven from twenty-four to twentyeight feet wide, beginning ninety feet in-by Survey Station 

No. 3506, located in the No. 4 entry and extending inby for 

a distance of approximately thirty-three feet on the 001 

section." The inspector commented that this had become a 

common practice at this mine and indicated that the approved 

roof-control plan permits a maximum width of 20 feet. 

Now, again, the standard cited here is 30 C.F.R. § 75.200 

which is the standard relating to the requirement for the filing of and approval of a roof-control plan. The roof-control 

plan in effect here required, in relevant part, on Page 4 that 

the entry width and the crosscut width shall be 20 feet. 

The testimony is undisputed that the widths in the No. 4 

entry were precisely as charged, that is, from 24 to 28 feet. 

The measurements were precisely made, again, with a 50-foot 

tape with the assistance of Inspector Ball. The hazard from 

this overwide entry is, of course, from a weakened roof 

resulting in possibly fatal roof falls. The condition was 

abated within the time specified for abatement by adding 

timbers to bring the width to within the 20 feet specified 

in the roof-control plan. 

Now, certain criteria under section llO(i) are appropriate to consider across the board, and are common to all of 

the orders and the citation at issue. One of those criteria 

is the size of the operator. The operator here is small 

having only 10,704 production tons per year. With respect 

to a history of previous violations, the printout admitted 

as Government Exhibit F does not provide sufficient detail 

for me to really determine the ·specific nature of the previous violations. I am, of course, considering only those 

violations in which a penalty has actually been paid since 

those are the only ones that have become final as of this 

date. It appears, however, that the operator does not have 

a significant history of violations. 

Now, considering what effect penalties might have on the 

operator's ability to continue in business, I note that 

Mr. Jackson has testified that even the penalties proposed by 

the Department of Labor would have such an effect. However, 

Mr. Jackson has been given the opportunity to obtain and to 

present documentary evidence to support his testimony here 

but has chosen not to. Apparently, that evidence is not in a 

form in which it could be readily presented to the court, but 

since nothing has been presented, I cannot give great weight 

to the unsupported testimony. If, indeed Jackson could reach 

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the conclusions he reached here today, it must have been 

based upon·some records. 

All right, considering all of these factors, I feel that 

the following penalties are appropriate for the violations 

that I have found: 

With respect to Citation No. 696006, a penalty of $400. 

With respect to Order No. 696007, a penalty of $250. 

And with respect to Order No. 696008, a penalty of $300. 

ORDER 

The Little Egypt Coal Company is ORDERED t pay a penalty of $950 within 

30 days of this order. 

Distribution: 

Catherine M. Oliver, Esq., Office 

of Labor, 3535 Market Street, Ro 

(Certified Mail) 

or, U.S. Department 

adelphia, PA 19104 

Harold Jackson, Litt~e Egypt Coal Company, P.O. Box 187, Grundy, VA 

24614 (Certified Mail) 

3727 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DALE A. EAGLE, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 8 1980 

Complaint of Discharge 

Complainant 

Docket No. WEVA 80-487-D 

- SOUTHERN OHIO COAL COMPANY, 

Respondent 

Martinka No. 1 Mine 

Appearances: 

Before: 

DECISION 

P. Lee Clay, Esq., Fairmont, West Virginia, for 

Complainant; 

D. Michael Miller, Esq., J. Statler Beachler, Esq., 

Columbus, Ohio, for Respondent. 

Judge Melick 

This case is before me upon the complaint by Dale A. Eagle under section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801 

et seq., the "Act"), alleging an unlawful discharge of him by the Southern Ohio 

Coal Company (Southern). A hearing was held on October 28 and 29, 1980, in 

Morgantown, West Virginia, at which both parties, represented by counsel, 

appeared and presented evidence. 

The issue in this case is whether Mr. Eagle was unlawfully discharged by 

Southern in violation of section 105(c)(l) of the Act because of his alleged 

safety-related activities at Southern's Martinka No. 1 Mine. Section 

105(c)(l) reads in part as follows: 

No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the exercise of the statutory rights of any miner * * * because such 

miner * * * has filed or made a complaint under or relating 

to this Act, including a complaint notifying the operator or 

the operator's agent, or the representative of miners * * * 

of an alleged danger or safety or health violation * * *, or 

because such miner * * * is the subject of medical evaluations 

and potential transfer under a standard published pursuant to 

section 101 or because such miner * * * has instituted or 

caused to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in any such 

3728 
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proceeding, or because of the exercise by such miner * * * on 

behalf of himself or others of any statutory right afforded 

this Act. 

Before hearing, Southern moved to dismiss the complaint on the grounds 

that, inter alia, Eagle as a nonunion management employee was not a "miner" _ 

within~scope of section 105(c)(l) of the Act and that he was not therefore entitled to the protections afforded therein. The short answer to this 

contention is, however, found in the Act itself in which the term "miner" is 

unambiguously defined as any individual working in a coal or other mine. See 

section 3(g) of the Act. Nonunion management personnel working in a coal 

mine are therefore "miners" for purposes of section 105(c)(l) and are 

accordingly entitled to the protections afforded therein. 

Southern also alleged in its motion that Eagle's complaint did not state 

facts sufficient to bring the claim within the ambit of activities protected 

by section 105(c)(l). Eagle maintains that his claim of unlawful discharge 

is grounded upon his exercise of a statutory right afforded under the law of 

West Virginia. Since the provisions of section 105(c)(l) do in fact limit the 

protected rights of miners to only those statutory rights recognized by the 

Federal law it is clear that a right found only in State law and not recognized by the Federal law does not give rise to a valid claim under section 

105(c)(l). Whether or not the alleged right is protected by the law of any 

State is therefore immaterial. The test is whether that right which may or 

may not also be recognized by State law is one protected by the Federal mine 

safety law. 

The complaint here, as clarified at hearing, appears to be that foreman 

Dale Eagle was fired because he made the decision to take his men off 

production-type work to correct what is claimed to have been an imminently 

dangerous safety defect in the mine ventilation system. I conclude that such 

activity would indeed be protected under the Act. In the case of Secretary 

(o.b.o. David Pasula) v. Consolidation Coal Company, 2 FMSHRC 

(October 14, 1980), the Federal Mine Safety and Health Review Commission 

found that the refusal of a miner to work in unsafe or unhealthful working 

conditions was a protected activity within the purview of the Act. I find 

that a decision to correct a serious safety or health hazard rather than to 

perform production-type work is the essential equivalent of refusing to work 

}n unsafe conditions. The motion to dismiss filed herein is therefore denied. 

For the reasons that follow, however, I conclude that on the facts of 

this case the allegations in the complaint cannot be supported. Even assuming, arguendo, that the hazard alleged by Eagle was an imminently dangerous 

one requiring immediate corrective action (which in reality it was not) it 

is clear that the decision by Clark Morris, general foreman for the Martinka 

No. 1 Mine, to discharge Eagle was made without knowledge of any such alleged 

hazard and without knowledge of the alleged protected activity but was based 

upon grounds completely independent of any protected activity. 

The essential facts are as follows. On March 3, 1980, Complainant Eagle 

was foreman of a six-man work crew on the 8:00 to 4:00 day shift. His crew 

372a 

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and a crew under foreman Harold "Dick" Barr were working together that day 

setting up the steel framework for a new conveyor belt. The crews would 

begin about 100 feet apart and work toward each other in completing a 

particular section. At the beginning of the shift, project supervisor 

Chuck Sponsler had warned Eagle and Barr to be sure they kept their men 

busy that day because they were expecting a visit from mine officials. 

According to Eagle, at around 2:40 p.m., he saw several of the mine 

officials including Mine Foreman Morris. Morris wanted to know the identity 

of some miners who were standing idle at the nearby power center. Eagle 

agreed to check on the problem but claimed they were not his men. Eagle 

later learned that he was discharged by Morris at the end of the shift 

around 4:00 p.m. when he was filling out his time sheets. Eagle concedes 

that he did not know whether Morris was aware that he had assigned his men 

to the alleged safety work (repairing the return air doors) before he was 

discharged. 

Morris testified that he entered the mine at around 2:00 p.m. accompanied 

by Mine Superintendent Tompkins and several other officials. Arriving at 

the power center, he heard men laughing and talking loudly and saw that the 

dinner hole was full of men. One of the men told Morris that they had progressed to the water hole (a pool of water through which the belt line would 

have to pass) and then "knocked off" for the day. 1/ Morris recognized later 

that several of this group of 10 or 11 men at the dinner hole were from Eagle's 

work crew. Some of the men were even dressed to leave for the day although 

it was an hour before quitting time. Morris located Eagle and Barr and told 

them to find some work for the men. Morris had previously warned Eagle and 

Barr about stopping work before the end of the shift. 

Horris later returned at around 3:15 to see if the men wer.e working. 

As he passed through the "16-switch" ventilation doors he saw several of the 

miners without tools sitting in the mantrip and two standing beside it ready 

to leave for the day. Outraged, Morris at this point decided to fire Eagle 

and Barr and told Tompkins of this decision. When Eagle and Barr later 

came outside at the end of the shift, he told them they were fired. Morris 

testified that he did not know of any plans Eagle may have had to work on 

the ventilation doors until he was told of this allegation by Sponsler. 

By that time the decision to release the men had already been made. 

Sponsler, the project supervisor, testified that around 3:00 p.m. 

he too saw a group of what he thought was about eight to 10 men at the dinner 

hole. Barr and Eagle were then about 200 feet away. When asked about the 

idle men, Eagle told him "I don't want to hear no shit, I am going to have 

1/ According to one of the miners called by Eagle to testify, no one 

wanted to work in this water hole so it was decided to leave that work 

for the night shift. Eagle was quoted as saying "We can't quit now, you 

might as well go fix some doors * * * it's too early to quit". These do 

not sound like the words of a man intent on correcting an imminent danger. 

3730 
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some men fix the doors." Sponsler did not have occasion to tell Morris of 

the purported project until later. Morris by that time had already made up 

his.mind to fire Barr and Eagle for their repeated failure to keep the men 

working. 

James Tompkins, superintendent of the Martinka Mine, accompanied 

Morris that afternoon. He too heard the laughter and noise around the 

power center and observed some 10 to 11 idle men in that area. He also 

recalled that they· later found four or five men in the vicinity of the 

"16-switch" doors just sitting in the "bus" (mantrip) laughing.· It was 

about this time that Morris told Tompkins that Barr and Eagle would have 

to go. ~ompkins agreed with the decision. 

Although Barr thought that he had told Morris when confronted by him in 

the mine that the idle men were preparing to fix ventilation doors, he was 

not certain of this. I do not believe that this was an accurate recollection . 

inasmuch as Morris specifically denied having this information before making 

his decision to fire the men, and the testimony of Tompkins, Sponsler and indeed 

even Dale Eagle himself corroborates Morris on this point. Barr concluded, 

moreover, that he and Eagle were fired not because of any artticipated safety 

work but because Morris indeed found their men at a time when they were not 

actually working. 

Under the circumstances, I conclude that Mine Foreman Morris made the 

decision to discharge Barr and Eagle for reasons unprotected by the Act 

and that indeed he made the decision without any knowledge of Eagle's 

alleged protected activity, i.e., his anticipated repair work on ventilation 

doors. 2/ The discharge was-therefore not motivated in any part by the 

alleged-protected activity. Fasula, supra. Eagle' complaint cannot therefore be supported and is accordingly dismissed. 

I 

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2/ The decision of a trial examiner for \s,~e West v~·rginia\Department of 

Employment Security that Eagle was not discharged f r miscdnduct and was 

thus eligible for unemployment insurance benefits is no..t--r<ecessarily 

inconsistent with my findings herein but would not in any event have been 

accorded great weight. That determination has been appealed by Southern 

and has therefore not become final. Moreover, Southern was not represented 

by counsel at the hearing, the hearing commenced without the presence 

of any company representative, and several key witnesses for the company, 

including Morris, were not present. The record before the examiner was, 

as a result, woefully inadequate. Since the Complainant has also failed 

to submit the rules and regulations governing such proceedings as he was 

directed to do, I am unable to ascertain the standards applicable thereto. 

The fact that Eagle claimed at that hearing that he was discharged because 

of a personality conflict with Morris and not for the reasons now advanced 

does, however, reflect on the credibility of his complaint herein. 

3731 

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Distribution: 

P. Lee Clay, Esq., 414 Deveny Building, Fairmont, WV 26554 (Certified Mail) 

D. Michael Miller, and J. Statler Beachler, Alexander, Ebinger, Fisher, 

McAlister & Lawrence, 17 South High Street, Columbus, OH 43215 (Certified Mail) 

3732 

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FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 2 2 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. YORK 79-49-M 

Petitioner A/O No. 19-00019-05001 

v. 

Wrentham Quarry & Mill 

S. M. LORUSSO & SONS, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

David Baskin, Esq., Office of the Solicitor, U.S. Department 

of Labor, Boston, Massachusetts, for Petitioner, MSHA; 

Kenneth Arthur, S. M. Lorusso & Sons, Inc., Walpole, 

Massachusetts, for Respondent, S. M. Lorusso & Sons, Inc. 

Judge Merlin 

The above-captioned case is a petition for the assessment of civil penalties filed by MSHA against S. M. Lorusso & Sons, Inc. 

The Solicitor had filed a motion for settlement which I disapproved on 

August 12, 1980. As I stated at the hearing, the Solicitor's motion set 

forth some reasons to support a settlement but, in my opinion, they were 

not adequate. However, at the hearing, the Solicitor furnished additional 

reasons and detailed explanations which did warrant approval of his recommendations. The approved settlements are as follows: 

Citation No. 217543 was issued when the plant manager was observed not 

wearing protective footwear. The original assessment was $44; the recommended 

settlement was $10. In support of the reduction, the Solicitor advised that 

there was no negligence on respondent's part with respect to this violation. 

The operator purchases protective footwear for its employees and instructs 

them to wear it. This employee had simply disobeyed company rules. I 

accepted the Solicitor's representations and approved the settlement. 

Citation No. 217545 was issued when the plant manager was observed not 

wearing protective headwear. The original assessment was $44; the recommended 

settlement was $10. The Solicitor gave the same reasons in support of the 

reduction as were given for Citation No. 217543. I accepted the Solicito1' s 

representations and approved the settlement • 

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Citation No. 217546 was issued when a gliard on a conveyor belt drive that 

had been removed for servicing was not reinstalled prior to restarting the 

belt drive. The original assessment was $60; the recommended settlement was 

$50. In support of the reduction, the Solicitor advised that this is a small 

operator and that this was the first inspection after the plant had started 

up operations for the season. In light of the small amount of the proposed 

reduction, I approved the recommended settlement. 

Citation No. 217547 was issued when a railing surrounding the primary 

crusher was found not to have been put in place prior to starting up the 

crusher. The original assessment was $66; the recommended settlement was 

$50. In support of the reduction, the Solicitor advised that it was company 

prastice to instruct employees not to remove these railings, and that if 

they had to be removed, they must be replaced. An employee simply had not 

replaced the railing. I accepted the Solicitor's representations and 

approved the settlement. 

Citation No. 217548 was issued when two electric drop cords were found 

being used without ground connectors. The original assessment was $38; the 

recommended settlement was $20. In support of the reduction, the Solicitor 

advised that there was a very low probability of occurrence. The small size 

of the company and the small history of prior violations was also noted. In 

light of these factors, I approved the rec.ommended settlement. 

Citation No. 217551 was issued when a shaker screen guard which had been 

removed for servicing was not replaced. The original assessment was $60; the 

recommended settlement was $40. In support of his motion, the Solicitor cited 

the same factors which supported the settlement for Citation No. 217546 and 

further advised that there was only an extremely remote likelihood that a 

person would come in contact with the dangerous parts of the machinery. I 

accepted the Solicitor's representations and approved the settlement. 

Citation No. 217552 was issued when a guard on a conveyor belt head 

pulley which had been removed for servicing was not reinstalled.prior to 

starting up the machine. The· original assessment was $60; the recommended 

settlement was $50. In support of the reduction, the Solicitor cited the 

same factors which warranted the reduction for Citation No. 217546. The 

Solicitor further advised that there was a very low probability of any 

injury occurring and that the operator's negligence was very low, given 

the fact that the plant was beginning to start up for the new season. In 

light of the foregoing factors and the fact that this was not a particularly 

large reduction, I approved the settlement. 

Citation No. 217555 was issued when it was observed that the traffic 

rules pertaining to speed limits on the haulage road were not posted. The 

original assessment was $52; the recommended settlement was $20. In support 

of the reduction, the Solicitor advised that both negligence and gravity 

were less than were originally thought since the rules had been posted but 

they were either destroyed or taken down because of the winter weather. The 

Solicitor further advised that the drivers are aware of the speed limits, 

3734 
and the rules are posted in the company office. I accepted the Solicitor's 

representations and approved the settlement. 

I recognized that the original assessments for these citations were not 

large. However, at the hearing the Solicitor did advise that this operator 

is small in size and had a very small history of prior violations. In light 

of these factors, the reconnnended reductions are appropriate. 

ORDER 

The rulings issued from the bench on November 24, 1980, are hereby 

AFFIRMED. 

The operator is ORDERED to pay $250 within 30 days from the date of 

this decision. 

Assistant Chief Administrative Law Judge 

Distribution: 

David L. Baskin, Esq., Office of the Solicitor, U.S. Department of 

Labor, JFK Federal Bldg., Boston, MA 02203 (Certified Mail) 

Kenneth G. Arthur, Controller, S. M. Lorusso & Sons, Inc., 331 West 

Street, Walpole, MA 02081 (Certified Mail) 

3735 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

) 

ARIZONA CRUSHING COMPANY, ) 

) 

Respondent. ) 

) 

DEC 2 4 1980 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-195-M 

A/O NO. 02-01642-05001 

MINE: PORTABLE CRUSHER 

DECISION 

APPEARANCES: 

Sandra Rogers, Esq., Office of Daniel Teehan, Regional Solicitor, 

United States Department of Labor, San Francisco, California 

for Petitioner 

Peter J. Ranke, Comptroller, appearing pro se, Phoenix, Arizona 

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, ARIZONA CRUSHING, 

failed to guard its conveyor equipment, thereby exposing its employees to 

hazardous pinch points. MSHA asserts ARIZONA CRUSHING thereby violated 30 

CFR 56.14-1, 1 a regulation promulgated under the authority of the Federal 

Mine Health and Safety Act (amended 1977), 30 U.S.C. § 801 ~seq. 

1/ The cited standard provides as follows: 

GUARDS 

56.14-1 MANDATORY. Gears; sprockets; chains; drive, head, 

tail, and takeup pulleys; flywheels; couplings; shafts; 

sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may cause 

injury to persons, shall be guarded. 

3736 

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ISSUES 

The issues are whether MSHA has jurisdiction and whether the violations 

occurred. 

CONTENTIONS 

ARIZONA CRUSHING contends that Congress did not intend· to include sand 

and gravel operations in the scope of the Act. I disagree. The legislative 

history indicates otherwise. In reviewing the safety record for metal and 

nonmetal mining, the United States House of Representatives included data on 

the number of fatalities occurring in open pit, sand and gravel mines, stone 

quarr~es, and mills. House Report No. 95-312, 95th Cong. 1st Sess. 6 

(1977). Congress also directed that any doubts over the extent of MSHA's 

jurisdiction are to be resolved in favor of inclusion within the Act. 

Senate Report No. 95-181 95th Cong. 1st Sess. 14 (1977). 

The determination that sand and gravel pits are under the jurisdiction 

of the Act has been upheld in recent decisions. Marshall v. Stoudt's Ferry 

Preparation Co., 602 F.2d 589 (3rd Cir. 1979), Cert. denied, 444 U. S. 1015 

(1980); Marshall v. Cedar Lake Sand and Gravel Co. 480 F. Supp. 171 (E. D. 

Wisc. 1979); Marshall v. Wallach Concrete Products, Inc., et al, Docket No. 

79-422 F. Supp. (D.C. N.M. 1980). 

PENDING LEGISLATION 

ARIZONA CRUSHING asserts there is legislation pending in the United 

States Congress that would remove MSHA's jurisdiction over sand and gravel 

operations. 

As of the date of this decision no legislation has been passed that 

would affect MSHA's jurisdiction. Accordingly, such argument is overruled. 

FINDINGS OF FACT 

Citation 379481 

1. The return roller of the primary feed conveyor was unguarded (Tr. 

10 - 12, P-1). 

2. The three foot long pinch points were 5 to 5 1/2 feet above the 

ground (Tr. 12, P-1). 

3. When the conveyer was operating the cleanup man or workers 

observing the plant would be in close proximity to the hazardous pinch point 

(Tr. 12 - 15). 

CITATION 379482 

4. The pinch points of the warp drive on the primary feed conveyer 

were guarded at the front but not at the sides (Tr. 16 - 18, P3, P4, PS). 

5. Workers could come between the guard and the motor within six 

inches of the pinch points during maintenance and cleaning operations (Tr. 

23). 

3737 

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CITAT.ION 379484 

At the conunencement of the trial petitioner moved to vacate this 

citation for the alleged violation of 30 C.F.R. 56.14-1 (Tr. 5). 

The motion to vacate was granted at trial and is formalized in this 

decision. 

CITATION 379485 

6. The west side of the V belt on the primary feed conveyer was 

guarded but there was an exposed pinch point between the guard and the motor 

'-Tr. 23, P6). 

7. Workers had access to this area and could come in contact with the 

V belt drive (Tr. 23). 

CITATION 379486 

B. The El Jay rock belt tail pulley was unguarded (Tr. 25 - 29, PB). 

9. A portion of the tail pulley was guarded but there were unguarded 

pinch points at the bottom of the frame (Tr. 26 - 27). 

10. Workers by using a walkway or path could come within a few inches 

of the pinch points (Tr. 28, PB). 

ALL CITATIONS 

11. Before the inspection ARIZONA CRUSHING had removed its conveyer 

equipment because a large amount of water was being released into the 

riverbed. 

12. The inspection occurred as ARIZONA CRUSHING was reassembling its 

equipment. 

13. The guards had not yet been reinstall~d and the equipment was 

being tested. 

ARIZONA CRUSHING asserts it should not be cited because its workers 

were not crushing rock but were merely reassembling the equipment. I find 

the· facts supporting ARIZONA CRUSHING' s view but I do not concur that such 

facts establish a defense. It is undisputed that the equipment was running 

and being tested (Tr. 76). In various ways the workers were exposed to the 

hazards prohibited by the standard. (Findings of Fact, paragraphs 3, 5, 7, 

10). 

To synthesize this decision: pinch points must be guarded whenever the 

workers, in the normal course of their duties, are in close proximity to the 

hazards. 

3738 
CIVIL PENALTIES 

ARIZONA CRUSHING asserts that the negligence assessed for Citation 

379485 is unduly high. I disagree, the condition is obvious and the 

photograph of the condition ;ndicates ready exposure to the pinch point 

(P6). 

However, in connection with the civil penalties, MSHA's proposed 

assessment does not credit ARIZONA CRUSHING for its immediate abatement of 

the conditions. Further, it is company policy to immediately comply with 

all MSHA directives. In view of the above factors and in consideration of 

the remaining statutory criteria, 2 I conclude that the proposed civil 

penalties should be reduced as set forth in the order of this decision. 

ORDER 

Based on the foregoing findings of fact, conclusions of law, and motion 

I enter the following order: 

1. Citation 379481 is affirmed and a penalty of $14.00 l.S assessed. 

2. Citation 379482 is affirmed and a penalty of $14.00 is assessed. 

3. Citation 379484 and all penalties therefor are vacated. 

4. Citation 379485 is affirmed and a penalty of $17.00 

5. Citation 379486 is affirmed and a penalty of $18 is 

Law Judge 

2/ 30 USC 820(i) 

Distribution: 

Sandra K. Rogers, Esq., Office of the Solicitor 

United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, California 94102 

Mr. Peter J. Ranke, Comtroller 

Arizona Crushing Company 

P. 0. Box 3184 

Tempe, Arizona 85281 

3739 

is assessed. 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 3 O 1900 

Phone (703) 756-6236 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MATHIES COAL COMPANY, 

Respondent 

MATHIES COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Civil Penalty Proceeding 

Docket No. PENN 80-277 

A/O No. 36~00963-03096V 

Mathies Mine 

Contest of Order 

Docket No. PENN 80-121-R 

Order No. 836843; 12/13/79 

Mathies Mine 

DECISION 

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

Department of Labor, for Petitioner-Respondent; 

William H. Dickey, Jr., Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for RespondentContestant. 

Before: Judge Charles C. Moore, Jr. 

Mathies Coal Company was served with an order alleging a violation 

of its roof control plan because it seemed obvious to the inspector that 

the operator of the continuous miner in a particular cut had been 

operating under unsupported roof. When the inspector first noticed the 

unusually large unsupported area where Mathies had been constructing a 

track shoot (for its rail car haulage system) his eyeball measurement 

indicated to him that the depth of the cut was greater than the distance 

from the front of the continuous mining machine to the operator's controls 

on that machine. He then had the area supported and took measurements. 

One of his measurements showed it was 28 feet from the deepest cut to 

the nearest roof bolt. Since it was only some 22 feet 7 inches from the 

front of the continuous miner to the operator's controls, he assumed 

there had been a violation because the operator of necessity had been 

under unsupported roof. 

3740 
2 

After the issuance of the citation the representatives of Mathies 

were somewhat perplexed by the measurements but rather than accept the 

fact of violation they brought the continuous miner back into the track 

shoot area and found that they could not position the miner 'in the track 

shoot in such a way that the operator would be under unsupported roof. 

One of their discoveries was that it was 28 feet from the far left-hand 

corner of the cutting blade to the miner's controls which were located 

on the right rear of the machine. 

At the hearing Mathies produced scale drawings of the track shoot 

showing the last line of roof bolts and a scale model of the continuous 

miner. --rhe miner would not fit in the track shoot in any area in any 

way which would expose the operator of the machine to unsupported roof. 

Furthermore, Mathies produced the continuous miner operator who cut the 

track shoot in question, and he testified as to how he cut this track 

shoot and that at no time was he under unsupported roof. 

While I can sympathize with the inspector's action, it is nevertheless true and I find it as a fact that no violation of the roof 

control plan or of 30 C.F.R. §75.200 occurred in this track shoot. The 

order is accordingly vacated and these cases are dismissed. 

Distribution: 

Charles C. Moore, Jr. 

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) 

William H. Dickey, Jr., Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

3741 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 DEC 3 0 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

CLINCHFIELD COAL COMPANY, 

Respondent 

Docket No. NORT 78-387-P 

A.c. No. 44-04251-02008V 

Docket No. NORT 78-388-P 

A.c. No. 44-04251-02009V 

McClure No. 1 Mine 

DECISION 

Appearances: ~lichael Bolden, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Gary W. Callahan, Esq., f.or Respondent. 

Before: Judge William Fauver 

These proceedings were brought by the Secretary of Labor under section 

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

§ 801 et~·· for assessment of civil penalties for alleged violations of 

mandatory safety standards in October and November, 1977. The case was 

heard at Falls Church, Virginia. Both parties were represented by counsel. 

The Secretary of Labor has submitted his proposed findings, conclusions, 

and brief for Docket No. NORT 78-387-P, following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Clinchfield Coal Company, 

operated a coal mine, known as the McClure No. 1 Mine, in Dickenson County, 

Virginia, which produced coal for sales in or substantially affecting interstate commerce. 

2. Thyssen Mining Construction, Inc. (Thyssen), was an independent 

contractor engaged by Respondent to sink a return shaft at the McClure No. 1 

Mine. In forming the shaft, Thyssen used a three-stage, circular work deck, 

which was suspended from the surface by four wire ropes in two parts. The 

3742 
work deck had a diameter of 18 feet, 4-1/2 inches and weighed about 

17,500 pounds empty and about 20,000 pounds fully loaded with men and 

materials. Through the center of the work deck was a bucket well about 

5 feet in diameter that permitted a bucket (man hoist) to pass through all 

three stages and descend to the bottom of the shaft. The shaft was 237 feet 

deep and had a diameter of 20 feet. The concrete formwork for the shaft 

was 5 inches thick. Attached to the outside of the work deck and extending 

about 7 feet above the top stage and about 7 feet below the bottom stage 

were several anti-tilt riggers, which were designed to wedge against the 

shaft wall to limit tilting of the deck. The height of the work deck with 

the tilt-control riggers was 22 feet, 3 inches. 

3. Around the outside perimeters of the work deck and the bucket well 

were separate post-and-chain barricades to prevent persons from falling over 

the edge of the deck or through the bucket well. The two barricades were 

circular and each consisted of two chains attached to posts. The top chain 

was about waist-high and the other one was about knee-high. The outermost 

barricade was about 6 inches inside the edge of the platform. Also, around 

the outside and inside edges of the deck were 6-inch kickplates to prevent 

people from slipping over the edge. The men wore cleated rubber boots and 

the deck had an anti-skid surface. 

4. The workers were not required to and generally did not wear safety 

belts while working on the deck; however, some of the men did wear safety 

belts while the deck was moving. If the deck tilted, there was nothing to 

prevent a man from falling to the deck floor and, besides the two chain 

barricades, there was nothing to prevent an employee from falling against 

the shaft wall, from becoming caught between the shaft wall and the deck, 

or from falling through the bucket well. 

5. There has never been an accident involving an employee falling 

against the shaft wall or lodging an arm or hand between the platform and 

the wall or falling through the bucket well. 

6. The work deck was powered by four Hoyle winches, which served as 

spools for the wire ropes. Each winch, which was controlled by the hoist 

operator from the hoist room, was a drum about 16 inches in diameter with 

two flanges and was powered by a 15-horsepower motor with a capacity of 

10,000 pounds. The No. 1 and No. 4 winches were mounted over the shaft 

opening on the collar coverings and the No. 2 and No. 3 winches were 

mounted on a concrete pad directly in front of the hoist room. 

7. The motors that drove the winches produced a maximum line speed of 

about 45 feet per minute; however, with the wire rope in two parts, the 

speed was halved to about 22-1/2 feet per minute. 

8. Each wire rope was five-eighths inch and had a breaking strength of 

34,000 pounds. With the ropes in two parts, the load supported by each part 

was 2,500 pounds. Each rope contained seven strands of wire, each of which 

consisted of 19 smaller wires. The ropes were anchored underneath the 

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collar of the shaft to one of the collar beams and extended down to the work 

deck under a sheave wheel and back to the winch drum. The sheave wheels 

were welded and bolted to the work deck. 

9. Title 30 of the Code of Federal Regulations, Part 77, incorporates 

the minimtnn safety factors for hoisting ropes established by the American 

National Standards Institute (ANSI). The ANSI safety factor of a hoisting 

rope was the factor by which the breaking strength of the rope exceeded 

the suspended load, related to the depth of the shaft. The recommended 

safety factor of a shaft 500 feet or less was 8. Under the ANSI system of 

detennining the .safety factor of hoisting ropes, any three of the· four ropes 

on the subject work deck would combine to produce a safety factor of 10.44. 

The four ropes had a safety factor of 13.92. 

10. Each of the four winches was equipped with an electric shoe-type 

brake made ~rom an asbestos fiber. Each brake was spring-activated. Before 

a brake would release, the motor would have to assume 40 percent of its normal load and the brake would not begin to apply until power decreased to 

10 percent of the normal load. Thus, at all times, either the motor would 

be applying power or the brakes would be activated. 

11. When power was applied 'to the winch motors, the brakes automatically released so that the platform could move; when power was turned off, 

the brakes applied automatically. If the power source to the winch motors 

failed, the brakes were designed to activate automatically by spring action. 

12. Each winch drUr.J. had a slot to receive a safety pin, also known 

as a safety "dog." The purpose of this pin was tel prevent the drtnn from 

freewheeling if the brake failed while the deck was in a stationary position. The safety pin was a strip of metal, about 12 inches long, 2 inches 

wide, that inserted into the frame of the winch drum. The pin would stop 

the drum when the pin came into contact with a metal lug attached to the 

outer part of the drum. The metal lugs were 1-inch square and spaced 90 

degrees apart so that, when a safety pin was inserted, the winch would 

rotate a maximum of 90 degrees before stopping at the next lug. 

13. An employee on the surface, known as the topman, manually inserted 

the four safety pins upon instruction from the hoist operator. The operator 

maintained telephone contact with the workers on the deck because he was 

unable to see the winches from the hoist room. A bell signal notified the 

topman that the pins were ready to be inserted. It took 3 to 4 minutes to 

insert all four pins. There has been no case of failure of a safety pin. 

14. The hoist operator tried to operate the four winches simultaneously so that the deck would be level; however, the deck often tilted 

because the winch motors operated at slightly different speeds and the 

stretching characteristics of the ropes were not uniform. Before the work 

deck reached a new resting position, the operator would make several adjustments to level the deck. Wnen the deck was finally stopped the safety pins 

3744 
would be inserted and power would be released so that the winches Would 

roll back against the pins. One or two of the ropes might become slack when 

the winches rolled back. Before the deck was moved again, the pins would 

be removed and the hoist operator would try to level the deck by aajusting 

the winches one at a time. Three winches were capable of leveling the work 

deck. 

15. If the air was damp, the shoes would absorb moisture and swell. 

During the 2 or 3 days prior to October 27, 1977, there were heavy rains 

that caused the brakes to drag and made lowering and raising the deck 

difficult. On October 27, the weather was drier and the brake shoes had 

shrunk back to their normal size. 

The October Inspection 

16. On October 27, 1977, federal mine inspector William H. Hulvey 

inspected the No. 2 shaft at Respondent's McClure No. 1 Mine. He arrived 

at the hoist room about 8:15 a.m. to inspect the three-stage work deck. 

He spoke briefly with the hoist operator and inspected the books. 

17. The hoist operator was in the process of moving the work deck to a 

new resting place in the shaft. The safety pins had been removed and the 

fiveman crew, including the foreman, were on the work deck. A whole crew 

was needed to move the work deck safely because there were three stages 

and there were utility lines and other objects that might interfere with 

the wire ropes. One of the workers below was communicating with the hoist 

operator by telephone, instructing him to move the winches one at a time. 

The operator told the ins'pector that he was moving the winches one at a 

time because they were having difficulty leveling the deck. A work deck 

might be difficult to keep level for a number of reasons,~·..&·, the brake 

was not holding properly, the ropes were not spooling on the drtnns properly, 

or the winches were not hoisting synchronously. 

18. At about 9 a.m., the operator lowered the inspector to the work 

deck. When he arrived the foreman said that they were trying to move the 

deck but were unable to keep it level. While the inspector was on the 

deck, the operator applied power to all four winches and the deck rose about 

1 foot. After the power was turned off, the brakes applied and the inspector 

noticed a slight displacement on one side of the deck and slackness in one 

of the ropes. The inspector determined that the No. 3 winch rope was not 

holding its designated load. He believed that if one of the brakes was not 

supporting any weight, an added strain was placed on the other brakes. The 

inspector told the foreman to withdraw the men until the problem was 

diagnosed. 

19. The operator raised the work deck and then released power. The No. 3 

brake should have applied; however, the brake did not inunediately hold the 

winch and about 1 foot of rope spooled from the drum before holding. They 

returned to the surface to inspect the No. 3 winch. 

20. A mechanic then inspected the brake and found that it was out of 

adjustment, that it was slipping, and that the shoes were not holding the 

brake wheel. 

3745 

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21. Inspector Hulvey issued Order of Withdrawal No. 1-mm (7-62) to 

Respondent, reading in part: 

The electrically operated magnetic brake (shoe type) 

installed on the No. 3 electric work deck winch was not maintained in safe operating condition. The brake would not hold 

the winch drum when power was disconnected to the winch drive 

motor. This allowed the cable to become slack and not hold 

its designated load. The No. 4 electric winch brake was the 

only brake holding the side of the circular-3 level work deck. 

Workmen were attempting to have the work deck hoisted up the 

shaft. 

The cited condition was abated by adjusting the brake. Three days earlier, 

there had been a similar problem with this brake. 

22. The inspector considered the problem serious because he believed 

that, if the work deck tilted and wedged against the shaft, one of 

the men could fall to the floor and injure himself or ·fall through the 

bucket well. He also believed that if the No. 4 winch brake also malfunctioned, one side of the deck would tilt and the wires could become damaged 

by contact with the· upper stage of the platform of the deck. 

23. The inspector found that the condition should have been discovered 

before his arrival. The shaft was required to be preshifted before the start 

of each shift and the hoisting equipment was required to be checked daily. 

However, the brakes would not be inspected unless the platform was going to 

be moved. If the platform remained stationary for several days, the brakes 

would not be examined before men descended to the work deck because the safet 

pins would prevent the winches from freewheeling. On October 27, there had 

been a preshift examination and the hoisting equipment was checked. 

24. At about 7:30 a.m. on the date of the inspection, Ray Hobson, 

the fire boss, had preshifted the shaft area, including the man hoist, the 

winches and the hoist room. His inspection of the winch brakes did not 

include removing the guards that surrounded the brakes. He descended the 

shaft in the bucket and found only that a line needed extending at the 

bottom of the shaft. 

25. The hoisting equipment was also inspected that morning, at about 

8 a.m., by the hoistman. The hoistman inspected the ropes to see that they 

were in good operating condition, that there were no broken strands, and 

that they were aligned in the sheaves and not overlayed on the drums. 

26. Thyssen recorded inspections made on the man hoist in the hoist 

inspection book. The man hoist was used to hoist men in and out of the 

shaft. Examinations of the deck winches, concrete form winches and emergency hoist winches were also recorded. There was no record in the book of 

an inspection of the Hoyle winches and the brakes. 

3746 
part: 

27. Respondent's approved shaft-sinking plan provided in 

The braking systems employed on the Hoyle Winches which 

are used to suspend the work deck, concrete forms, and the 

emergency escape conveyance shall be visually examined and 

tested on each shift by a qualified hoistman prior to allowing men to travel on the platforms or conveyances suspended; 

or prior to hoisting loads where men may be endangered by the 

hoisting operation. If such tests reveal that any part of a 

braking system is not functioning properly, repairs shall be 

made immediately. The results of such tests shall be recorded 

in a book maintained for this purpose and shall b~ signed each 

shi..ft by the hoistman making such inspections. 

28. An electrical foreman periodically inspected the brake mechanisms 

by pulling off the covers and disconnecting the solenoid to see that they 

held with power on. Brake linings were also changed about every 2 to 

3 weeks. There was no standard requiring the coverings to be removed when 

the hoist was inspected. On September 21, 1977, a brake was installed on 

the No. 3 winch. 

29. There were two methods of checking the brakes. One involved the 

hoist operator applying power and moving the winches slightly and then shutting the power off to activate the brakes. If the brakes were out of alignment, a person on the deck would observe a slack cable when the brakes were 

applied. A slack cable on the No. 2 or No. 3 winch could be observed at the 

surface because they were mounted on the pad directly in front of the hoist 

room; however, a slack cable on the No. 1 or No. 4 winch could be observed 

only from the deck. Under normal circumstances, when the deck was being 

moved there would be various tensions in each of the four ropes due to differences in the spooling characteristics and the winding of the ropes on 

the four drums; however, each of the ropes would be taut. 

30. The other method of checking the brakes, which was more complicated but more accurate, involved manipulating the solenoid system on each 

brake. The electrical engineer would isolate the power from the ·circuit, 

remove the covers to disconnect the wires serving the solenoid, insulate 

those wires safely, replace the covers on the solenoid box and on the brake 

box, and then reapply power to the circuit. The procedure then had to be 

reversed to put the system back in working order. 

The November Inspection 

31. On November 21, 1977, Inspector Hulvey, accompanied by another 

inspector and the mine foreman, inspected the shaft and the three-stage circular work deck at the McClure No. 1 Mine. The deck was in a stationary 

position. The workmen were on their lunch hour. Inspector Hulvey observed 

that the No. 1 winch cable was completely slack at the work deck level. He 

held the cable with his hand and was able to shake it. In the inspector's 

opinion, the cable was not suspending its designated load. The only brake 

3747 

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holding that side of the deck was the No. 4 brake and the slippage of that 

brake would allow the drum to turn until the safety pin engaged or until 

the slack in the rope was taken up. The safety dogs were in the winches. 

32. Inspector Hulvey also observed that an air hose was intertwined 

with the cable. The air hose was hooked to an air pump, which was located 

at the bottom of the shaft. The hose was lying on the work deck and was 

intertwined with the two parts of the cable. He believed that whoever 

placed the hose there should have observed the slack cable. 

33. The hose was not interfering with the functi_on of the wire ropes 

and there was no danger of the hose snapping unless the work deck was moved. 

Jf the hose broke, there would be a sudden whipping action of the live end 

of the hose. If it were only punctured, there would be a sudden air stream 

which might strike somebody but pose no real danger unless it generated airborn dust or particles. 

34. The inspector believed, initially, that the brake.was not holding 

the load. When they reached the outside and put tension on the rope, they 

found that the brake was working properly but that the rope had not been 

properly tensioned. 

35. On November 21, 1977, Inspector Hulvey issued an order of withdrawal to Respondent, reading in part: 

One of two hoyle winches used to suspend the east side 

of the three stage work deck in the shaft was not suspending 

the designated load in that the winch cable of the No. 1 winch 

was completely slack at the work deck. Pump hoses to a 

diaphragm pump were intertwined with the cable. 

36. He believed that thecondition was serious because an unexpected 

displacement of the work deck would be hazardous to workers on the deck. At 

the very least, they might lose their balance and fall to the surface of the 

deck. He observed a tool box and a fire extinguisher on the top level. At 

times, miscellaneous hand tools, drills and hoses would be lying on the 

deck surface. 

37. The cited condition was abated in about 30 minutes by applying 

tension to the cable. 

38. At 6:30 a.m. on November 21, a preshift examination had been conducted. No defects or infractions were found. At 11:15 a.m., an onshift 

inspection disclosed that a whip check was missing from the airline shaft 

bottom and that the pump needed a safety cable. 

DISCUSSION WITH FURTHER FINDINGS 

At the hearing, counsel for the Respondent orally moved to dismiss 

the Secretary's petition for assessment of civil penalty in Docket No. 

NORT 78-387, on the ground that the Secretary failed to introduce in 

3748 
evidence the underlying notice of violation. Respondent argues that the 

existence of the underlying notice of violation must be established before 

the validity of the subject section 104(c)(l) order of withdrawal can be 

established. Respondent argues that without a "chain" established between 

the notice and order, the Commission lacks jusisdiction to consider the 

va1idity of the order. 

The Secretary introduced in evidence the order of withdrawal that was 

issued on October 27, 1977. The order of withdrawal reads in part: "The 

violation was found during a subsequent inspection made within 90 days after 

Notice No. 1 J. A. B. was issued on September 7, 1977, and is also caused by 

an unwarrantable failure to comply with such standard." The Secretary did 

not introduce in evidence Notice No. 1 J.A.B. However, I conclude that this 

omissi~n was not fatal to the Secretary's case. I find that the existence 

of the underlying notice of violation was established when the subject order 

of withdrawal was received in evidence without objection from Respondent. 

The existence of the underlying notice of violation is indicated on the 

face of the or~er of withdrawal. I find that in the absence of evidence that the underlying notice of violation was contested by Respondent 

in a review proceeding, the validity of the notice is established for purposes of this proceeding. 

Based on the order of withdrawal issued on October 27, 1977, the 

Secretary has charged Respondent with a violation of 30 C.F.R. § 77.404, 

which rr0vides: "Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately." The basic issue as to 

this charge is whether the brake on the No. 3 Hoyle winch malfunctioned 

and whether the malfunction of the brake rendered the three-stage circular 

work deck unsafe. 

The Secretary argues that a preponderance of the evidence establishes 

that the brake on the No. 3 Hoyle winch malfunctioned, causing an added 

strain on the other brakes and rendering the work deck operation unsafe. 

The Secretary proposes a penalty of $4,000. 

Respondent contends that the malfunction of one brake would not render 

the work deck unsafe because the remaining brakes could handle the load. 

Geoffrey Heston, Thyssen' s Director of Mining Services, testified that the 

tilt resulting from the failure of one of the brakes would be so slight that 

no one on the deck would be in danger of falling to the deck or falling 

through the bucket well. 

Using a scale model of the work deck and the shaft and his mathematical 

calculations based on the weight and size of the deck, Weston testified that 

the maximtml tilt of the deck would be 2.07 degrees and the maximum vertical 

deflection would be 8 inches or a 4-percent gradient. Weston testified that 

if the work deck descended below the concrete formwork while the shaft bottom 

was being excavated, which was unusual, the degree of tilt would be greater. 

3749 

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Weston testified that a four-winch-operated work deck was designed 

to operate safely with three ropes and that slackness in one of the ropes 

after the deck was stopped and the winches were rolled back against the 

safety pins was common. When the winches were backed off, slackness would 

be produced in one of the ropes depending on the relative positions of 

the safety pins when the winches were halted. 

At the time of the inspection, the shift had already begun and the crew 

was on the work deck. The safety pins had been removed and the hoist operator was trying to level the work deck before moving it up or down. It was 

normal for the deck to become slightly unlevel with a four-winch hoisting 

system and the operator's action in applying power to the four winches one 

at a time was an acceptable method of leveling the deck. However, a preponderance of the evidence establishes that the crew was having an unusually 

difficult time leveling the deck. The inspector testified that the hoist 

operator told him that they were having trouble keeping the deck level and 

when the inspector arrived at the deck, the foreman also told him that they 

were unable to keep the deck level. 

I find that, with the safety pins removed, the inability to level the 

deck created a potential hazard to the crew and imposed a duty upon Respondent to inspect the brakes. A preshift examination and hoisting inspection 

were conducted before the shift began and no brake defects were found. However, the most common method of testing the brakes, which involved activating 

the hoist motor and then applying the brakes to see if the brakes held, was 

done only after the five-man crew had descended to the deck. A proper 

inspection before the men arrived at the work deck would have revealed a 

problem with the brakes, requiring a more thorough inspection of the braking 

system. 

I find that the tilt observed by the inspector indicated a defect in 

the braking system and that this defect presented a safety hazard. A sudden 

displacement of the deck when the brakes were applied could cause an employee 

to fall and injure himself either on an object lying on the deck's surface 

or by wedging a leg or arm between the deck and the shaft wall. I find that 

the tilt was not caused by the winches winding non-synchronously or by the 

ropes spooling unevenly on the drums. A tilt while the deck was in motion 

might result from one of these factors; however, I find that the displacement of the deck when the brakes were applied was caused by a defect in 

the brakes, as Inspector Hulvey believed. It was a violation to keep men 

on the deck and to try to operate it without first checking the brakes and 

correcting any brake defect found. 

However, the gravity of the violation was minimal because the antitilt 

riggers attached to the outside of the work deck would limit the tilting of 

the deck by wedging against the shaft wall. I find significant the inspector's own experience on the deck when the No. 3 brake's failure to hold properly did not cause anyone on the deck to lose his balance. 

The negligence of the operator was also slight because a preshift inspection and hoisting inspection were conducted before the shift began; the crew 

had been trying to level the deck for only a few minutes before the inspector 

3750 
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arrived at the operator's compartment; and the safety features of the threestage work deck were more than adequate to prevent serious injury if one of 

the brakes malfunctioned. 

Based on the order of withdrawal issued on November 21, 1977, the Secretary has charged Respondent with a violation of 30 c·.FR. § 77.404, which provides: "Mobile and stationary machinery and equipment shall be maintained in 

safe operating condition and machinery or equipment in unsafe condition shall 

be removed from service immediately." The basic issue as to this charge is 

whether the three-stage work deck was in safe operating condition. The 

Secretary and the Respondent have not filed briefs as to this charge. 

I find that the Secretary failed to prove a violation as to this order. 

As not:t!d above, a slack cable while the deck was stationary was a common 

occurrence and three cables were capable of supporting the deck in a safe 

condition. Inspector Hulvey testified that all of the brakes were working 

properly. The evidence supports a reasonable inference that the slackness in 

th·~ No. 1 rope was caused by the winch being backed off against the safety 

pin and that this did not pose a safety hazard. The Secretary did not prove 

by a preponderance of the evidence that the slack cable constituted an unsafe 

condition. 

Nor did the Secretary show by a preponderance of the evidence that the 

presence of an air hose intertwined with one of the wire ropes posed a safety 

hazard under the cited standard. Inspector Hulvey testified that the air hose 

was not interfering with the function of the wire ropes because the deck was 

stationary. He said that the only danger was that if the deck was moved, the 

hose might snap. However, as noted above, the deck often remained stationary 

for several days and there was no evidence that the deck was about to be 

moved or that Respondent's crew would not have untangled the hose from the 

air ptmlp at the bottom of the shaft before moving the deck. The inspector 

testified that the crew was taking a lunch break at the time of the inspection. I find that the Secretary failed to prove by a preponderance of the 

evidence that the air hose interfered with the safe operation of the work 

deck or that the air hose was in danger of snapping or being punctured at 

the time of the inspection, or that Respondent planned to operate the deck 

later without disentangling the air hose and wire rope. In addition, the 

inspector testified that the hazard to the safe operation of the deck posed 

by the air hose was minimal compared to the hazard of slackness in one of the 

cables. The gravamen of the Secretary's charge having failed of proof (the 

slack cable), the air hose condition does not warrant sustaining the 

November 27 charge of an unsafe condition. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and subject 

matter of the above proceedings. 

2. Respondent violated 30 C.F.R. § 77.404 by allowing men to travel on 

an unsafe work deck as alleged in Order of Withdrawal No. 1 W.W.H. (7-62). 

3751 

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Based upon the statutory criteria for assessing a civil penalty for a violation of a mandatory safety standard, Respondent is assessed a penalty of 

$100 for this violation. 

3. Petitioner did not meet his burden of proving a violation as alleged 

in Order of Withdrawal No. 1 W.W.H. (7-67). 

ORDER 

WHEREFORE IT IS ORDERED that (1) the charge based on Order of Withdrawal 

No. 1 w.w.H. (7-62) is DISMISSED, and (2) Clinchfield Coal Company shall pay 

the Secretary of Labor the above-assessed civil penalty, in the amount of 

$100, with 30 days from the date of this decision. 

-£r)~ SJ-~v~- WILLIAM FAUVER, JUDGE 

Distribution: 

Michael Bolden, Esq., Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Gary w. Callahan, Counsel for Clinchfield Coal Company, Lebanon, 

VA 24266 

3752 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 3 0 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

ROYAL DARBY COAL COMPANY, INC., 

Respondent 

Docket No. KENT 80-220 

Assessment Control 

No. 15-07077-03017 V 

No. 1 Mine 

DEFAULT DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before: Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Barbourville, Kentucky, on November 19, 1980, pursuant to written notice of 

hearing dated September 24, 1980, and received by respondent on September 26, 

1980, counsel for the Secretary of Labor entered his appearance, but no one 

appeared at the hearing to represent respondent. 

Section 2700.63(a) of the Commission's Rules of Procedure provides that 

when a party fails to comply with an order of a judge, an order to show cause 

shall be directed to the party before the entry of any order of default. An 

order to show cause was sent to respondent on November 21, 1980, pursuant to 

29 C.F.R. § 2700.63(a). A reply to the show-cause order was timely filed by 

the operator on December 1, 1980. The operator states that he was unable to 

attend because his father passed away on the evening of November 18, 1980, 

and was buried November 21, 1980. In such circumstances, the operator asks 

that he not be held in default and that another hearing be scheduled. 

It seems harsh to find an operator in default in circumstances which 

show that the operator's father died on the evening of the day preceding the 

day on which the hearing was scheduled to be held. I would be willing to 

find that respondent had satisified the show-cause order and I would be willing to reschedule the hearing if the operator had stated that he made any 

effort whatsoever to notify me before the hearing of the fact that his 

father's death would prevent him from being able to be present at the hearing. The operator knew that the hearing was scheduled to be held i~ the 

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conference room at the Office of the Mine Safety and Health Administration 

in Barbourville, Kentucky. That office opens for business at 7:00 a.m. each 

day and MSHA's employees do not leave until 5:30 p.m. Even after 5:30 p.m., 

a member of the custodial force will answer the phone if a call is made to 

the office. 

Respondent's failure to call the MSHA office on November 18, 1980, or on 

the morning of November 19, 1980, caused us to have to pay a reporter for 

being present at a hearing which lasted about 2 or 3 minutes. Additionally, 

the Secretary's counsel drove all the way from Nashville, Tennessee, to 

Barbourville, Kentucky, for the sole purpose of representing MSHA at the 

hearing because all other cases scheduled on or after November 19, 1980, were 

either settled or continued long in advance of the time set for the.convening 

of the hearing in this proceeding. 

The operator's answer to the show-cause order does not state specifically 

what time his father died. Even assuming that his father died at 11:59 p.m., 

uhich is as late as the death could have happened and still be said to have 

occurred on November 18, 1980, a call to the MSHA office at 7:00 a.m. on 

November 19, 1980, would have enabled the reporter, MSHA's attorney, the 

inspector, and me to start our return trips to our various offices instead 

of waiting around, as we did, for well over an hour after 9:00 a.m. to provide the operator with the hearing he had requested in the event he should 

make a tardy appearance. 

I previously held a hearing in Barbourville on August 8, 1978, with 

respect to the operator's cases in Docket Nos. BARB 78-387-P and BARB 78-419-P. 

At that hearing, the operator presented his section foreman as a witness and 

introduced documentary evidence. The citation involved in this proceeding was· 

served by the inspector on respondent's section foreman. Therefore, the operator was forced to rely upon the first-hand knowledge of his section foreman to 

present a defense to the alleged violation. In this proceeding, the hearing 

was scheduled to be held on the morning of November 19, 1980. Consequently, 

respondent would have had to have prepared for the hearing on November 18, 

1980, prior to the death of his father who is said to have died on the evening 

of November 18. Preparation for the hearing would at least have involved his 

alerting his section foreman to be ready to travel to Barbourville early in 

the morning because the operator had to drive to Barbourville, Kentucky, from 

Louellen, Kentucky, a distance of about 45 miles. If the emotional stress 

associated with the death of the operator's father caused him temporarily to 

forget about the hearing, his section foreman would have reminded him very 

early the next morning that he had failed to meet the section foreman for the 

trip to Barbourville. 

Additionally, as I noted in my decision issued February 7, 1979, in 

Docket Nos. BARB 78-387-P and BARB 78-419-P, the operator has a history of 

ignoring his obligations with respect to our hearings. On pages 1 and 2 of 

my decision in Docket Nos. BARB 78-387-P, et al., I noted that respondent 

had requested an opportunity to file a posthearing brief. He was given a 

period of 30 days after receipt of the transcript within which to file the 

3754 
brief. '!'.he operator never did file that posthearing brief and never did 

notify me that he no longer wished to file a brief even though I waited 

for 5 months after the transcript was received before writing my decision 

in order to give him plenty of time within which to file the brief. My 

~ecision also noted on page 1 that the operator had made similar requests 

in other hearings and had never filed a brief in any instance after he had 

requested an opportunity to do so. 

The foregoing facts show that the operator has consistently ignored his 

reponsibilities as a participant in our proceeding and.has s~own indifference 

to the expenses to the Government and time wasted by Government personnel in 

providing him with procedural due process. I find that the operator has 

shown no reason in his answer to the show-cause order why he could not have 

noti~ied me or the MSHA office of his father's death so that at least some of 

the time, effort, and expense associated with providing him with an opportunity for a hearing on November 19, 1980, could have been avoided. 

For the foregoing reasons, I find respondent to be in default. Section 

2700.63(b) of the Commission's Rules of Procedure provides that when a judge 

finds a respondent to be in default in a civil penalty proceeding, he shall 

also enter a summary order assessing the proposed penalties as final, and 

directing that such penalties be paid. 

WHEREFORE, it is ordered: 

Within 30 days from the date of this decision, Royal Darby Coal Company, 

Inc., shall pay a civil penalty of $500.00 which was proposed by the Assessment Office with respect to the violation of section 75.200 alleged in Citation No. 746688 dated September 24, 1979. 

Distribution: 

~zad-~ c r r;:J-/;;-//,,~ ~ Richard 

Administrative 

c. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

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

of Labor, Room 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Edward W. Karst, President, Royal Darby Coal Company, Inc., Box 493, 

Louellen, KY 40853 (Certified Mail) 

;, U.S. GOVERNMENT PRINTING OFFICE: 1981- 341-638:3463 

3755 

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