November Index 1980 

Commission Decisions: 

Council of Southern Mountains, Inc. v. Martin County Coal C0~p. 

11-12-80 KENT 80-2·22-D 

Administrative Law Judge Decisions: 

11-03-80 U. S. Steel Corp. 

11-05-80 Sigler Mining 

11-05-80 Consolidation Coal Company 

11-05-80 Island County Highway Dept. 

11-05-80 Consolidation Coal Company 

11-06-80 Consolidation Coal Company 

11-10-80 South Union Coal 

11-13-80 J. P. Burroughs & Sons, Inc. 

11-13-80 Cash & Carry Gravel Inc. 

11-14-80 Jim Walters Resources Inc. 

11-14-80 Lone Star Steel Company 

11-14-80 Union Rock & Materials Corp. 

11-14-80 Tacey Transport Corp. 

11-14-80 Fillmore Industries, Inc. 

11-17-80 Tazco, Inc. 

11-17-80 Goode Contractors 

11-17-80 Old Ben Coal Co. 

11-19-80 Red Ash Smokeless Coal Corp. 

11-19-80 Hi Tenn, Inc. 

11-19-80 The Standard Slag Co. 

11-19-80 G & M Coal Company 

11-19-80 Fire Creek Coal Co. of Tenn. 

11-20-80 DKT Coal Company 

11-20-80 Helvetia Coal Co. 

11-20-80 Blackjack Coal Company 

11-20-80 Herb Coal Company 

11-20-80 Ralph Foster & Sons 

11-21-80 Keystone Portland Cement Co. 

11-24-80 Elden & Sandra Wait 

11-24-80 National Mines 

11-25-80 Gallagher & Burk, Inc. 

11-25-80 John Petersen 

11-25-80 Salt Lake County Road Dept. 

11-25~80 Federal American Partners 

11-25-8(; Little Bill Coal Co., Inc. 

11-25-80 F & G Sand & Gravel Co. 

11-26-80 Eastern Associated Coal Corp. 

11-28-80 Consolidation Coal Co. 

11-28-80 Lone Star Industries 

06-30-80 Itmann Coal Company 

PITT 78-430-P 

WEVA 80-519 

PENN 80-287-R 

WEST 79-372-M 

WEVA 80-110-R 

PENN 80-224-R 

WEVA 80-246-D 

LAKE 80-173-M 

LAKE 80-48-M 

SE 80-43-R 

DENV 79-291-PM 

WEST 79-93-M 

YORK 80-68.'...M 

YORK 80-66-M 

VA 80-121 

WEVA 80-540 

VINC 75-180-P 

VA 80-137 

BARB 79-69-P 

LAKE 79-217-M 

SE 79-128 

SE 79-24 

KENT 79-349 

PENN 80-143-R 

BARB 78-705-P 

W1LK 79-116-P 

WEST 79-397-M 

PENN 80-25-M 

WEST 79-171-M 

KENT 79-345-D 

DENV 79-517-PM 

WEST 79-300 

WEST 79-365-M 

WEST 80-219-RM 

KENT 80..,.203 

YORK 80-46-M 

WEVA 80-473 

WEVA 79-115-R 

VA 80-67-M 

WEVA 80-140 

Pg. 3216 

Pg. 3220 

Pg. 3225 

Pg. 3226 

Pg. 3227 

Pg. 3244 

Pg. 3253 

Pg. 3258 

Pg. 3266 

Pg. 3271 

Pg. 3276 

Pg. 3282 

Pg. 3289 

Pg. 3293 

Pg. 3297 

Pg. 3299 

Pg. 3301 

Pg. 3302 

Pg. 3305 

Pg. 3307 

Pg. 3312 

Pg. 3327 

Pg. 3333 

Pg. 3336 

Pg. 3347 

Pg. 3353 

Pg. 3374 

Pg. 3386 

Pg. 3390 

Pg. 3395 

Pg. 3397 

Pg. 3399 

Pg. 3404 

Pg. 3409 

Pg. 3416 

Pg. 3419 

Pg. 3421 

Pg. 3422 

Pg. 3426 

Pg. 3440 

Pg. 3456 

Commission Decisions 

NOVEMBER 

The following case was Directed for Review during the month of November: 

Penn Allegh Coal Company, Inc., v. Secretary of Labor, MSHA, PENN 81-6-R 

(Judge Stewart, October 21, 1980) 

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

Ranger Fuel Corporation v. Secretary of Labor, MSHA, WEVA 79-217-R 

(Judge Laurenson, September 23, 1980) 

Consolidation Coal Company v. Secretary of Labor, MSHA, WEVA 80-116-R, 

etc. (Judge Laurenson, October 7, 1980) 

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

(Judge Koutras, October 6, 1980, decision on remand) 

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

Council of the Southern Mountains v. Martin County Coal Corporation, 

KENT 80-222-D (Judge Steffey, October 3, 1980) 

3215 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 12, 1980 

Council of Southern Mou~tains, Inc. 

Docket No. KENT 80-222-D 

v. 

Martin County Coal Corporation 

ORDER 

This proceeding was initiated by a complaint filed by the Council 

of Southern Mountains alleging that the mine operator violated section 

105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§801 et seq. (Supp. II 1978) ["The Act"] by refusing to permit nonemployee representatives of miners to enter mine property for the purpose 

of monitoring miner training classes. On October 3, 1980, the judge 

issued a document entitled "Decision" in which he found that Martin 

County Coal's refusal to permit representatives of the Council to enter 

mine property to attend the training classes constituted discrimination 

and interference with the Council in violation of section 105(c)(l) of 

the Act. The judge ordered Martin County to cease and desist from 

interfering with the Council's attendance at training classes and to 

notify the Council when and where such classes would be held. 

The judge also ordered Martin County "to reimburse the Council for 

all attorneys' fees and other expenses incurred in connection with the 

filing and prosecution of the complaint in Docket No. KENT S0-222-D or 

to otherwise incurred as a direct result of Martin County Coal Corporation's refusal to allow the Council's representative to monitor training 

classes". The judge's decision did not, however, specify the dollar 

amount of this award. 

On October 22, 1980, the Council filed a motion with the judge asking 

that the judge clarify whether his decision constituted his "final disposition" of the proceeding and whether the judge reserved jurisdiction 

for the purpose of implementing his order of relief. The Council said 

it was seeking this clarification in order to protect its interests 

regarding the award of costs and expenses. In a letter in response to 

that motion, the judge said he did not believe that he any longer had 

jurisdiction to enter an order in the proceeding. 

Martin County Coal has filed a pe,tition for review raising issues 

relating to the merits of the judge's rulings. The Council of Southern 

Mountains has filed a petition to protect its interest in the implementation 

of the order awarding costs and expenses. 

321G 80-11-3 
Section 113(d)(l) of the Act and Commission Rule 65(a) require 

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

of the proceedings. Jackie Ray Hammonds v. National Mines Corporation, 

KENT 79-345-D, October 24, 1980. Secretary of Labor on behalf of 

Larry D. Long v. Island Creek Coal Co. and Langley & Morgan Corp., 

2 FMSHRC 1698 (July 25, 1980). The issuance of the document on October 3rd 

entitled "Decision", did not include orders which finally disposed of the 

proceedings before the judge because the amount of attorneys' fees and 

costs is not resolved. 1hus, the issuance of this document did not 

initiate the running of the statutory review periods. The judge 

retains jurisdiction. 

Accordingly, the petitions for review are dismissed as premature. The 

parties may refile petitions once an order awarding costs and expenses is 

entered. The Executive Director shall return the record to the judge. 

Marian Pearlman Nease, Commissioner 

3211 
Distribution 

Jack W. Burtch, Jr., Esq. 

James F. Stutts, Esq. 

Mcsweeney, Stutts & Burtch 

121 Shockoe Slip · 

Richmond, Virginia 23219 

L. Thomas Galloway, Esq. 

Richard L. Webb, Esq.· 

Center for Law & Social Policy 

1751 N Street, N.W. 

Washington, D.C. 20036 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

3213 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 3 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)·, Docket No. PITT 78-430-P 

Petitioner A.C. No. 36-03425-02015 V 

v. 

Maple Creek No. 2 Mine 

UNITED STATES STEEL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Stephen Kramer, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Louise Symons, Esq., for Respondent. 

Judge William Fauver 

This proceeding was 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 seq., for assessment of civil penalties for alleged violations of 

mandatory safety standards'9 The case was heard at Pittsburgh, Pennsylvania. 

Both parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent United States Steel Corporation 

operated a coal mine known as the Maple Creek No. 2 Mine in Washington County, 

Pennsylvania, which produced coal for sales in or substantially affecting 

interstate commerce. 

2. Respondent used a continuous-mining method in the Maple Creek No. 2 

Mine. The continuous miner was powerc:!d electrically from a power source that 

was located about seven blocks from the section. Each block was driven on an 

85-foot center. Power to the machine could be cut off at the power source or 

by using the breaker switch, which was located on the side of the machine. 

3220 
3. On August 30, 1977, at about 8:30 a.m., federal mine inspector David~· 

McCusker arrived at the 2 main, 7 flat, 35 room section of the mine. The dayshift crew was mining and loading coal with the continuous miner. The inspector observed the miner in operation for a short while before the operator was 

forced to stop the machine because of a rupture in the hydraulic system. Paul 

Gaydos, the assistant mine foreman, and the mechanic, William Ruddock, were 

immediately notified of the problem. 

4. The mechanic activated the pump motor to force hydraulic fluid through 

the system so that he could locate the rupture. The inspector could hear the 

sound of dripping oil immediately in front of the operator's compartment but 

he was unable to see the leaking hose. 

5. Directly in front of the operator's compartment was a valve chest, 

which housed numerous hoses that fed hydraulic fluid to various parts of the 

machine. The valve chest was protected by a side guard, which was secured by 

four bolts, and a top guard or lid. Two bolts were on top of the machine and 

secured the top and side guards together. The side guard was about 30 inches 

by 40 inches. 

6. When the foreman arrived, the operator was backing the miner out from 

the working face to provide more room to locate and repair the leak. The 

mechanic had just left the area to get his tools. To find the leak, the foreman had the pump motor turned off and removed the tram cover or cat motor 

cover, which protected the cat motor hoses near the bottom of the machine. 

However, he was unable to find the leak under the tram cover. 

7. The mechanic returned with his tools and spare parts and the inspector observed him holding a crescent wrench and reaching through a small opening behind the valve chest guard. The inspector believed he was trying to 

uncouple the oil line, but he could not actually see the mechanic's hand 

behind the guard. Also, the mechanic's back was towards the inspector and 

blocked visibility of the mechanic's hands. At this time, power to the miner 

had not been deenergized and locked out at the power source. 

8. The inspector stopped the mechanic because the machine had not been 

deenergized and locked out at the power source. The inspector believed that 

the mechanic was in danger of injuring himself, possibly on metal braids of a 

ruptured hose and possibly from hot oil if the pump motor were turned on 

while he was working on the machine. He did not consider it safe to cut off 

the machine power only by using the breaker switch, because he believed there 

was a danger that someone might activate the power before the repairs were 

completed. 

9. The inspector then issued Notice of Violation No. 1-DEM, which read 

in part: "Repairs were observed being made on the Lee Norse continuous miner 

(Serial No. 4057) in 2 main, 7 flat, 35 room section while the power was on 

the machine, and the section foreman was at the machine watching the mechanic 

make repairs." 

3221 
10. The cited condition was abated immediately by deenergizing and 

locking out the power source to the continuous miner. The mechanic and 

foreman removed the guards, located the leak, and replaced the hose. 

11. After the ruptured hose was replaced, power was returned and the 

motor was turned on to make sure there were no other leaks. The motor was 

then turned off at the breaker switch, to replace the guards. The inspector 

did not require that the.machine circuit be deenergized at the power source 

in order to replace the guards. He remained in the section until the machine 

was put back in service. 

12. Under normal practice, to locate the source of a leak the pump 

motor was activated so that pressure would force fluid through the rupture. 

The sound and sight of dripping oil would often be enough to lead the mechanic 

to the rupture. However, if the source of the leak could still not be located, 

the top guard and side guard over the valve chest would be removed so that the 

mechanic could look for the rupture. The pump motor would often need to be 

reactivated because the build-up of oil and grease on the hoses was so great 

that a visual search of the rupture was difficult. The normal sequence of 

repairing oil leaks on the continuous miner was to locate the leak, deenergize 

the machine by locking out the power source, make the repairs, and reenergize 

the machine. 

13. Respondent had a practice of removing the guard before the machine 

was deenergized at the power source if the source of the leak could not be 

found after the motor was turned on. Once the leak was located, the power 

source would be deenergized at the power source before repairs were begun. 

Only when the exact source of the leak was known would Respondent first lock 

out the power source. Sometimes, power would be returned to the machine 

before the guard was replaced so that the repairs could be tested. It was 

standard practice for Respondent to use the breaker switch while performing 

these tests. 

14. It was contrary to company policy and considered unsafe to reach 

behind the guard to search for a ruptured hose. Even with the pump motor off, 

there would be a danger of injury from protruding metal braids of a ruptured 

hose. However, there was no real danger from metal braids in reaching behind 

the upper part of the guard with a wrench to remove the guard bolts. 

15. To remove the guard over the valve chest, the mechanic would reach 

behind the guard with a wrench or pliers and secure the nut while loosening 

the bolt on the outside with a wrench in his other hand. Finger pressure on 

the nut was not sufficient. It was possible to reach behind the guard to feel 

some of the hoses; however, both guards had to be removed to reach most of 

the hoses and to repair a ruptured hose, depending on where the leak was 

located. Only two hoses were visible without removing the top guard. 

DISCUSSION WITH FURTHER FINDINGS 

On August 30, 1977, Inspector McCusker charged Respondent with a violation of 30 C.F.R. § 75.509, which provides: "All power circuits and electric 

3222 
equipment shall be deenergized before work is done on such circuits and 

equipment, except when necessary for troubleshooting or testing." 

Inspector Mccusker initially charged Respondent with a violation of 

30 C.F.R. § 75.1725(c), which provides: "Repairs or maintenance shall not be 

performed on machinery until the power is off and the machinery is blocked 

against motion, except where machinery motion is necessary to make adjustments." However, the notice of violation was modified to charge Respondent 

with a violation of section 75.509, which is a statutory provision. In 

Consolidation Coal Company, WEVA 79-440-R, 2 FMSHRC 965 (April 28, 1980), 

which involved an allegation that the mechanic was changing an oil hose 

without deenergizing power, Judge Lasher held that section 75.1725(c) was an 

implementing regulation of a statutory provision (section 75.509) and that 

"electric equipment," as used in the statutory provision, had the same meaning as "machinery" in the implementing regulation. 

I find that section 75.1725(c) is an implementing regulation for section 75.509 and that the same basic rationale governs the two standards. 

The basic issue as to the notice of violation is whether Respondent's 

mechanic was "troubleshooting or testing" or whether he was "working on" the 

machine when the citation was issued. 

The Secretary contends that at the time the notice of violation was issued, the 

mechanic was working on the continuous miner without first locking out the 

power source. The Secretary argues that it was reasonable for the inspector 

to assume that the mechanic had already located the leak, because he turned 

the pump motor off after checking for a leak, and to assume that when the 

mechanic reached behind the valve chest he did so to "work on" the miner 

by uncoupling the hose fitting. 

The inspector testified that the mechanic turned on the pump motor to 

locate the source of the leak. He stated that when the motor was turned on, 

dripping oil could be observed and heard in front of the operator's compartment so that when the motor was turned off, he assumed that the leak had been 

found. The inspector also testified that he observed the mechanic take a 

crescent wrench and reach through a small opening behind the valve chest, 

and that the wrench that the mechanic used would not fit the bolts that held 

the guards in place. 

Respondent argues that the mechanic reached behind the guard to loosen 

the top bolt near the operator's compartment and that the inspector's conclusion that he was removing a hose coupling is unfounded because the inspector could not see whether the mechanic was loosening a bolt or making a 

repair. The inspector testified that he could not see the mechanic's hand 

behind the guard and that the mechanic's back was towards him. He testified 

that he assumed the mechanic was uncoupling a hose fitting. Respondent argues 

that the mechanic's action in reaching behind the guard to remove a bolt constituted "troubleshooting" because he was removing the guard to search for 

the source of the leak. 

3223 
I find that the Secretary failed to prove by a preponderance of the evidence that the mechanic was uncoupling, or in the process of uncoupling, an 

oil hose fitting. The evidence showed that the proper procedure for repairing 

a ruptured hose on the continuous miner was to locate the source of the leak, 

deenergize the power by locking out the power source, make the necessary 

repairs and restore power to the machine. However, the activity of locating 

a leak often involved activating the pump motor so that pressure would force 

fluid through the hoses. If the leak could still not be located, the motor 

was turned off and the guards over the valve chest were removed so that the 

mechanic could visually observe the hoses. If the build-up of oil and grease 

still prevented the mechanic from locating the rupture, the pump motor would 

have to be reactivated. 

The inspector was unable to see precisely what the mechanic was doing with 

his hand behind the valve chest guard. I credit the testimony of the assistant 

mine foreman, who helped the mechanic repair the rupture, that the leak had not 

been located before the mechanic reached behind the guard and that the mechanic 

was loosening a bolt that secured the guard over the valve chest to locate the 

rupture. I find that under these circumstances, it was reasonable to use the 

breaker switch to turn off the power rather than locking out power at the power 

source. I find that the mechanic was "troubleshooting" when the Notice of Violation was issued. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and the subject 

matter of this proceeding. 

2. Petitioner did not meet its burden of proving a violation as alleged 

in Notice of Violation No. 1-DEM. 

ORDER 

WHEREFORE IT IS ORDERED that the subject proceeding is DISMISSED. 

WILLIAM FAUVER, JUDGE 

Distribution: 

Stephen Kramer, Esq., Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Louise Symons, Esq., Counsel for United States Steel Corporation, 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

3224 
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. 

SIGLER MINING, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 NOV 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-519 

A.O. No. 46-04633-03021 

Mine No. 1 

ORDER ASSESSING DEFAULT PENALTY 

The operator having received the captioned proposal for assessment 

of civil penalties and having failed to file its answer within 30 days 

as required by Rule 28 of the Commission's rules of procedure, an order 

to show cause why it should not be declared in default issued on October 6, 

1980. The order directed respondent to explain its delinquency and to 

comply with the requirements of Rule 28 that it provide a statement of 

the reasons why each of the violations are contested, including a 

statement as to whether each violation occurred and whether a hearing 

is requested. The operator's response filed October 27, 1980, fails to 

comply with these requirements. 

Accordingly, it is ORDERED that the operator be, and hereby is, 

declared in DEFAULT. 

It is FURTHER ORDERED that pursuant to 

rules the proposed penalty of $1174 be, and 

FINAL ORDER of the Commission. Finally, it 

pay the amount finally assessed, $1174, on 

1980. 

Distribution: 

Rule 63 of the Commission's 

hereby is, ASSESSED as a 

is ORDERED that respondent 

before Monday, November 24, 

Judge 

Sidney Salkin, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Leonard L. Sigler, President, Sigler Mining, Inc., General Deliver, Jodie, 

WV 26674 (Certified Mail) 

Harrison B. Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

322il 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

RAY MARSHALL, SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT 

OF LABOR, 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

DECISION 

Contest of Orders 

Docket No. PENN 80-287-R -

Citation No. 840695; 6/2/80 

Docket No. PENN 80-288-R 

Order No. 840699; 6/11/80 

Renton Mine 

5 NOV 1980 

Duing the course of the inspector's testimony in Penn 80-287-R the 

parties requested a recess. After the recess the Solicitor advised that 

MSHA would modify the subject section 104(d)(l) citation to a section 

104(a) citation. The operator then moved to withdraw its notice of 

contest. The motion to withdraw was granted from the bench._ 

Thereupon Docket No. PENN 80-288-R was consolidated for hearing and 

decision with PENN 80-287-R. The Solicitor advised that MSHA also would 

modify the subject section 104(d)(l) order in PENN 80-288-R to a section 

104(a) citation. The operator then moved to withdraw its notice of 

contest with respect to that matter. The motion was granted from the 

bench. 

In light of the foregoing the above-captioned cases are hereby 

DISMISSED. 

-----~~ • 

------- Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

William H. Dickey, Jr., Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480-Gateway Bldg., 3535 l1arket St., Philadelphia, Pa 

19104 (Certified Mail) 

Harrison Combs, Esq., UMWA, 900 Fifteenth St., NW, Washlngton, DC 

20005 (Certified Mail) 

3226 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

5 NOV 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

v. ) 

) 

ISLAND COUNTY HIGHWAY DEPARTMENT, ) 

) 

Respondent. ) 

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

DECISION 

APPEARANCES: 

DOCKET NO. WEST 79-372-M 

ASSESSMENT CONTROL NO. 

45-01299-05001 

MINE: CAMANO ISLAND PIT & MILL 

Faye Sutton, Esq., Office of Robert A. Friel, Associate Regional Solicitor, 

U. S. Department of Labor, 8003 Federal Office Building, 

Seattle, Washington 98174 

for Petitioner, 

Alan R. Hancock, Esq., Office of David F. Thiele, Prosecuting Attorney of 

Island County, State of Washington, 

Courthouse, Coupeville, Washington 98239 

for Respondent 

Before: Judge John J. Morris 

STATEMENT OF THE CASE 

Petitioner has charged Island County, a political subdivision of the 

State of Washington, with violating the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. 801 et seq. (hereinafter referred to as the Act). 

Island County denies th-e-violations. 

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

Washington on February 20, 1980. 

The parties filed post trial briefs. 

3227 
ISSUES 

The following issues were raised by the parties: 

I. Whether a sand and gravel pit is a mine subject to the Act. 

II. Whether the Secretary has promulgated safety regulations governing 

sand and gravel pits. 

III. Whether Island County's sand and gravel pit affects interstate 

commerce. 

IV. Whether a state or its political subdivision which is the proprietor 

of a mine is a "mine operator" as that term is used in the Act. 

V. Whether the Commission has the authority to decide the constitutionality of the application of the Act to Island County. 

VI. Whether the application of the Act to Island County violates the 

Tenth Amendment of the United States Constitution. 

VII. Whether Island County violated the Act. 

VIII. Whether the proposed penalties for any affirmed violations are appropriate. 

DISCUSSION 

I. 

The initial issue is whether a sand and gravel pit is a mine subject 

to the 1977 Mine Safety Act. Island County provided several definitions of 

"mineral" to buttress its position that sand and gravel are not minerals and 

therefore, Is land County does not operate a "mine". 

The words "mine" and "mineral" are to be construed in a manner 

consistent with the intent of Congress in adopting the Act. Marshall v. 

Stoudt's Ferry Preparation Co. 602 F. 2d 589 (3rd Cir. 1979), Cert. denied, 

U.S. (1980). The objective of Congress was to provide all miners ---

a safe working place. They were not concerned with the value of the 

material extracted from the earth. Respondent's supporting authorities 

which define "mineral" based on value are therefore, not appropriate. 

It is evident that sand and gravel pits were intended to be within the 

coverage of the Act. In reviewing the safety record for metal and nonmetal 

mining, the House included data on the number of fatalities occurring in 

open pit, sand and gravel mines, stone quarries, 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). 

3 2 ("'\ ,, .. ~o 
The determination that sand and gravel pits are under the jurisdiction 

of the Act has been upheld in recent decisions. Stoudt's Ferry, supra.; 

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). 

II. 

Another contention raised by Island County is whether the Secretary has 

promulgated safety and health standards for the operation of sand and gravel 

pits pursuant to the Act. Island County is correct in its assertion that 

the present mandatory safety and health standards for sand, gravel, and 

crushed stone operations were initially promulgated pursuant to the Federal 

Metal and Nonmetallic Mine Safety Act, 30 U.S.C. 725. However, such 

standards were incorporated into the 1977 Act. 

The mandatory standards relating to mines, issued by the 

Secretary of the Interior under the Federal Metal and 

Nonmetallic Mine Safety Act ... which are in effect on 

the date of enactment of this Act shall remain in effect 

as mandatory health or safety standards applicable to metal 

and nonmetallic mines ... under the Federal Mine Safety and 

Health Act of 1977 until such time as the Secretary of Labor 

shall issue new or revised mandatory health or safety standards 

applicable to metal and nonmetallic mines .... 30 U.S.C. 

96l(b)(l). 

III. 

The third issue is whether Island County's sand and gravel operations "affect interstate commerce", and, thereby, bring Island County 

within the jurisdiction of the Act. The mines subject to the Act are those 

whose products enter commerce or those whose operations or products affect 

commerce. 30 U.S.C. § 803. This provision is to be given a very broad 

interpretation. Marshall v. Kraynack 604 F. 2d 231 (3rd Cir. 1979). 

Congress has found that health and safety accidents in all mines disrupt 

production and cause loss of income to operators which in turn impedes and 

burdens commerce. 30 U.S.C. § 80l(f). Accordingly, even if a mine's 

products remain solely within a state, any disruption in its operations due 

to safety hazards affects interstate commerce. Marshall v. Kilgore 478 

Supp. 4 (E.D. Tenn 1979); Marshall v. Bosack 463 F. Supp. 800 (E.D. Pa 

1978). 

Island County argues that since it is a small operation which does not 

sell its products to the public, it cannot be held to affect interstate 

commerce. The size of the operation is not determinative of whether it 

322fJ 
affects interstate commerce. In the· Kraynak case, the mine employed only 

the four individuals who owned it. The case of Martin v. Bloom 373 F.Supp. 

797 (D.C. Pa 1973), cited by Island County, presents a unique situation of a 

mine operated by one man. The court's ruling that the local nature of the 

mine did not affect commerce has not been followed by other decisions. 

Martin appears to have a very narrow application not applicable here. 

Island County may be the sole recipient of the sand and gravel mined 

from the pit but it still affects commerce. It is admitted that if it 

didn't operate the mine, it would obtain the materials from some commercial 

source (Tr. 26). Under the principles espoused in Wickard v. Filburn 317 

U.S. 111 (1942) and mor·e recently in Bosack, supra, and Sec. of Interior v. 

Shingara 418 F. Supp. 693 (M.D. Pa, 1976), safety problems at the mine in 

combination with safety-related accidents at other mines throughout the 

country affect directly the stability of interstate commerce. Congress, 

therefore, has the power to regulate Island County's operations under the 

interstate commerce clause. 

IV 

The fourth issue focuses on the definition of "mine operator" and 

whether such definition includes a state in its capacity as the proprietor 

of a mine. Mine operator is defined by the Act as "any owner, lessee, or 

other person who operates, controls or supervises a .•• mine .... " A person 

is designated as "any individual, partnership, association, corporation, 

firm, subsidiary of a corporation, or other organization." 30 U.S.C. 802(d) 

and (f). Island County contends that a state or its political subdivision 

is not a "person" and thus, cannot be a mine operator subject to the Act. 

The United States Supreme Court has held numerous times that 

Congressional acts regulating the conduct of certain businesses are to be 

enforced against states which have become proprietors of such enterprises. 

The sovereign immunity claim made by the state in these cases was not upheld 

even though they had argued that the acts in question were specifically 

directed to persons defined as corporations, partnerships etc., and were not 

made expressly applicable to states. 

The principle enunciated by the Court has been that a state is not 

immune from federal regulations when it chooses to engage in a business of a 

private nature. Ohio v. Helvering 292 U.S. 360 (1934); Plumbers, Etc., 298 

v. County of Door 359 U.S. 354 (1959). 

Island County states that Congress by its definition of mine operator 

intended to specifically exclude states from the jurisdiction of the Federal 

Mine Act. Island County cites National League of Cities v. Usery 426 U.S. 

833 (1976) in support of this proposition. I disagree. A state operated 

business is not a part of integral government functions. Ohio v. Helvering, 

supra. The restriction on federal regulation of states, enunciated in Nat'l 

League of Cities, applies only to integral functions of state government. 

This principle and its application to Island County is discussed more fully 

below. Island County is a mine operator subject to the Act. 

3230 
v. 

Island County contends that the application of the Act to itself 

violates the Tenth Amendment of the United States Constitution. The 

threshold issue to be addressed before this argument can be discussed is the 

authority of the Federal Mine Safety and Health Review Commission to decide 

questions of constitutional import which relate to the application of the 

Act to a particular party. 

The Supreme Court has held that an administrative agency lacks the 

authority to determine the constitutionality of a particular provision of 

its enabling act. Weinberger v. Salfi 422 U.S. 749 (1974). P.U.C. of 

California v. U.S. 355 U.S. 534 (1958). This principle, however, does not 

preclude a resolution by the Review Commission of the question of whether 

the 1977 Mine Act is applicable to Island County. 

The Review Commission is an independent tribunal empowered by Congress 

to review the enforcement actions of the Secretary and determine the 

liability of the parties. It is the sole arbiter of the factual issues and 

has been given broad authority to hear and decide all matters contested 

before it. 30 U.S.C. 823(d)(l). 

The constitutional question raised by Island County concerns the 

extent of the Act's jurisdiction. Congress did not expressly provide for 

enforcement of the Act against states nor did it specifically exclude them. 

The Connnission must then.define the jurisdiction in a way that comports 

with the general purposes of the Act as enunciated by Congress. 

The Commission has the authority to resolve a jurisdictional question 

of this kind. 

[I]t has long been established that the question of the 

inclusion of a particular entity within the coverage of 

a regulatory statute is generally for initial determination by an agency, subject to review on direct appeal, 

.... Securities & Exch. Com'n v. Wall Street Transcript 

Corp. 422 F.2d 1371, 1375 (2nd Cir. 1970) Cert. denied, 

~(1970) citing Oklahoma Press Publishing Co. v. Walling, 

327 U.S. 186 (1946). 

Although the above cases dealt with the determination of jurisdiction 

as part of the investigative function of the enforcement agencies involved, 

the precept is applicable here. Congress designated that the Review 

Commission as the initial tribunal to adjudicate under the Act. As stated 

above, a necessary corollary to this duty is the authority to determine 

whether a particular party is within the coverage of the statute. Review by 

the United States Courts of Appeals is provided to assure due process. 

3231 
It is a basic rule of statutory construction that legislation is to be 

construed in a manner that upholds its constitutionality. U.S. v. Vuritch 

402 U.S. 62 (1971). Inherent then in the Commission's duty to resolve the 

jurisdictional question is the obligation to analyze any possible constitutional ramifications. 

Constitutional issues in general have never been taken out of the 

purview of agencies. Courts have frequently required that fourth amendment 

claims be litigated before a Commission prior to granting judicial review. 

Marshall v. Babcock & Wilcox Co. 610 F.2d 1128 (3rd Cir. 1979). The 

resolution of questions of constitutional import has also been held to be 

within the scope of the agencies' authority to decide jurisdictional issues. 

"There is no reason to believe that the Commission will not be fully aware 

of the importance of first amendment considerations when it interprets and 

applies the Act's exclusion." Wall Street Transcript Corp., supra at 1380. 

Although it may still hold true that an agency cannot determine the 

constitutional strength of its enabling act, that is not the issue here. 

The Commission is faced with a question of statutory construction. The 

resolution of this matter requires that it analyze the legislative history 

and constitutional principles. The Commission is not ruling on the 

constitutionality of an act of Congress but is determining what Congress 

intended and then enforcing it. The issue on appeal then would not be 

whether to uphold an act of Congress as would be the question if there was 

an attack on the statute itself. Rather, the appellate court would have to 

decide whether to affirm or reverse an interpretation of the Act by the 

Commission. This distinction·was recognized by Davis in his treatise on 

administrative law. 

A fundamental distinction must be recognized between 

constitutional applicability of legislation to particular 

facts and constitutionality of legislation. When a 

tribunal passes upon constitutional applicability it is 

carrying out the legislative intent, either express or 

implied or presumed. When a tribunal passes upon constitutionality of the legislation the question is whether it 

shall take action which runs counter to the legislative 

intent. We commit to administrative agencies the power .to 

determine constitutional applicability, but we do not commit 

to administrative agencies the power to determine constitutionality of legislation. 3 K. Davis Administrative Law 

Treatise, § 20.04 at 74 0958). 

3232 
VI. 

The merits of the constitutional question raised by Island County 

will now be addressed. Island County contends that the enforcement of the 

Act against a state or its political subdivision would violate the Te~th 

Amendment. Island County alleges that the constitutional principles 

enunciated in Nat 'l i~a.gue of. Cities support its position. In that case, 

the application of the Federal Labor Standards Act to states was held to be 

unconstitutional because the impact of its ·enforcement would threaten the 

separate and ~ndependent existence of the states. 

In applying this precept to the present case, Island County argues 

that the operation of a sand and gravel pit for the purpose of supplying 

materials for road maintenance is an integral government function. 

Accordingly, the County concludes that the interference from the enforcement of the Act would violate its separate and independent existence and, 

thus, would be unconstitutional. 

Island County argues that Congress, having in mind the principles 

espoused in Nat'l League of Cities, intended to exclude states from the 

jurisdiction of the Act. Congress was no doubt aware of this landmark 

decision, but I find that it supports rather that negates the application 

of the Act to Island County. 

In Nat'l League of Cities, the Court expressly refrained from 

overruling the ultimate holding in U.S. v. California 297 U.S. 175 (1936) 

which affirmed the propriety of federal regulation of a railroad owned and 

operated by a state. The Court distinguished the case before it from this 

earlier decision on the basis that the operation of a railroad engaged in 

interstate commerce was not "an area that the states have regarded as 

integral parts of their governmental activities." Nat'l League of Cities, 

supra at 854. 

In U.S. v. California the State contended that because the revenue from 

the operation of the railroad was used for harbor improvements, it was 

performing a purely public function in its sovereign capacity. It concluded 

that it should, therefore, be excluded from the jurisdiction of the Safety 

Appliance Act. The Court agreed that the State of California was acting 

within its powers, but this did not exempt it from regulation by the federal 

government. In making this determination the Court analyzed the purpose of 

the Act and found that its effectiveness would be impaired if it were not 

applied to state-owned railroads. 

3233 
The Federal Safety Appliance Act is remedial, to 

protect employees and the public from injury because 

of defective railway appliances (cites omitted), and 

to safeguard interstate commerce itself from obstruction 

and injury due to defective appliances upon locomotives 

and cars used on the highways of interstate commerce even 

though their individual use is wholly intrastate (cites 

omitted). The danger to be apprehended is as great and 

commerce may be equally impeded whether the defective 

appliance is used on a railroad which is state-owned or 

privately-owned. No convincing reason is advanced why 

interstate commerce and persons and property concerned 

in it should not receive the protection of the act whenever 

a state, as welr as a private-owned carrier, brings itself 

within the sweep of the statute, or why its all-embracing 

language should not be deemed to afford that protection. 

U.S. v. California, supra at 185. 

U.S. v. California is analogous to the present case. The Federal Mine 

Safety and Health Act is also remedial. Congress was keenly aware of the 

grave dangers involved in every kind of mining activity and, further, 

recognized the need for a uniform regulatory scheme. Equal protection for 

all miners is at the heart of the 1977 Act. House Report No. 95-312, supra 

at 8-9. The danger to be apprehended and the potential impediment to 

interstate commerce is as great in state-owned mines as in those operated by 

private companies. 

Island County argues that the State of Washington Industrial Safety 

and Health Act sufficiently monitors the safety practices of its mines as 

evidenced by their excellent safety record. Island County is to be commended 

for its excellent safety record. However, the safety record is not relevant 

to the issue of whether the Act applies to the County. Congress did not 

provide for the review of a mine operator's safety record before the 

issuance of a citation. 

The Washington Industrial Safety and Health Act is still a viable means 

of protection for miners. Congress did not intend to fully displace any 

State plans on mine safety. They envisioned a "dual system which 

encourages State participation while at the same time not relinquishing 

Federal enforcement." House Report No. 95-312, supra at 25. Only state 

laws that conflict with the Act are superseded by it. 30 U.S.C. 955 

Federal regulation of state-owned enterprises that have counterparts in 

the private sector is supported by the principles espoused in Nat'l League 

of Cities. Several decisions of the appellate courts have construed the 

precepts enunciated by the Court to prohibit federal intervention only 

when it would significantly hinder or interfere with a traditional function 

of a state. 

3234 
In determining whether an otherwise valid exercise of the 

federal commerce power would impermissibly impair state 

sovereignty we are therefore required to balance the reason 

for the exercise against the extent of usurpation of state 

policy making or invasion of integral state functions that 

would result, giving "appropriate recognition to the 

legitimate concerns of each government. "(cite omitted). 

Friends of the Earth v. Carey 552 F.2d 25, 37 (2nd Cir., 1977). 

Where the legitimate exercise of a power delegated to 

Congress outweighs the interference with the state's 

self-determination in providing its essential public 

services, the tenth amendment is no bar to congressional 

action. Peel v. Florida Dept. of Transp. 600 F. 2d 1070, 

1083 (5th Cir. 1979). 

The maintenance of county roads is an essential and traditional 

service of local governments. The operation of a mine is not. It is a 

convenient method of providing materials needed for road construction, just 

as the running of the railroad was a convenient and economical means of 

maintaining California's harbors. 

Island County fails to satisfy the criteria developed by the courts 

in their analyses of integral government functions. The County is not 

perceived by the community as the principal provider of sand and gravel, nor 

is it particularly suited for the operation of a mine. Amersbach v. City of 

Cleveland 598 F.2d 1033 (6th Cir. 1979). The operation of a sand and gravel 

pit is not an activity that is necessary to the separate and independent 

existence of a state. 

Compliance with the Act may have an indirect effect on road maintenance. Island County may be expected to suffer some budgetary repercussions. The County Engjueer testified that its funds were presently 

insufficient to meet all its needs, and compliance with the Act would cause 

further reductions. However, the impact would not be so substantial as to 

displace the County's policies of road maintenance. Island County concedes 

that there are other sources of sand and gravel. 

In weighing any impact on road maintenance projects against the paramount objective of Congress to ensure a safe working place for all miners, 

the scales tip heavily in favor of mine safety. The application of the Act 

to states comports with the intentions of Congress, and is not violative of 

the Tenth Amendment. The Act must be construed to include within its jurisdiction a mine operator which is a state or political subdivision thereof. 

For the foregoing reasons I rule against all the contentions raised by 

Island County. 

3235 
VII. 

The validity of the following citations is contested by Island County: 

Citation No. 351642 

Petitioner alleges that Island County violated 30 CFR 56.11-2 1 by 

failing to install a handrail on an elevated walkway. The facts are uncontroverted. 

1. A walk platform constructed around the motor for the jaw crusher 

lacked a handrail (Tr. 114, 115, P-1). 

2. A workman was observed by the inspector near the motor (Tr. 114). 

3. A worker would be on the platform when doing maintenance 

work on the motor or when changing belts (Tr. 141). 

4. The walkway is 5 to 6 feet in width (Tr. 135). 

5. The distance from the platform to the surface below is 5 feet 

(Tr. 115). 

6. There is a danger of someone falling off the platform which 

could result in a broken arm or leg (Tr. 115). 

The standard 

walkways. It was 

injury did exist. 

involved requires that handrails be provided on all 

used by miners and a danger of falling and subsequent 

Accordingly, the citation should be affirmed. 

Citation No. 351644 

Petitioner charges that Respondent violated 30 CFR § 56.14-1 2 

1/ Mandatory. Crossovers, elevated walkways, elevated ramps, and 

stairways shall be of substantial construction provided with handrails, 

and maintained in good conditions. Where necessary, toeboards shall be 

provided. 

2/ Mandatory. Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; f~ywheels; 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. 

3236 
by failing to install a guard at the head pulley where the pinch points 

were exposed. The facts are uncontroverted. 

1. A guard was not installed at the head pulley of the 

No. 2 conveyor belt where the pinch points were exposed 

(Tr. 117, P-2). 

2. There is a walkway along the side of the conveyor belt 

near the pinch points (Tr. 118). 

3. The walkway is approximately 2 feet wide (Tr. 119). 

4. The walkway is used frequently by miners (Tr. 142). 

5. A miner's clothing could be caught in the pinch points 

and the miner pulled into the roller (Tr. 117, 118). 

6. The walkway was approximately 2-1/2 feet from the rollers 

on the belt (Tr. 120, 142). 

7. The pinch points are near the rollers (P-2). 

The pinch points are moving machine parts which because of the close 

proximity to the walkway could cause injury to a miner. This is a constant 

danger since the walkway is used frequently by the miners. Ac.cordingly, I 

find that the standard was violated and the citation should be affirmed. 

Citation No. 351651 

Petitioner charges that 30 CFR 56.9-7 3 was violated because there 

was no emergency stop cord on the No. 2 conveyor belt nor was there a guard 

rail between the conveyor belt and the walkway. The facts are uncontroverted. 

1. A walkway used frequently by the miners was located 2-1/2 feet 

from the rollers on the No. 2 conveyor belt (Tr. 120, 142). 

2. There was no guard between the walkway and the conveyo~ belt. 

(Tr. 119). 

3. There was no emergency stop devise along the belt line to shut 

off the power to the belt (Tr. 119). 

4. The hazard was that someone could be pulled into the rollers and 

not be ab le to turn off the conveyor. (Tr. 119). 

Island County failed to comply with 30 CFR 56.9-7. The citation 

should be affirmed. 

3/ Mandatory. Unguarded conveyors with walkways shall be equipped with 

emergency stop devices or cords along their full length. 

3237 
Citation No. 351653 

The Secretary alleges that Island County violated 30 CFR 56.12-184 

The facts are uncontroverted. 

1. The electrical panels located along the crusher platform which 

control the operation of the plant were not labeled as to what 

equipment they regulated (Tr. 121, P-3). 

2. There are 12 electrical devices in each panel (Tr. 143). 

3. There are at least 10 panels in the area (P-3). 

4. Other power switches are at the main electrical shed which 1s 

50 - 60 feet away from the panels in question (Tr. 122). 

5. There was a danger that if someone were injured while the 

equipment was in operation, a co-worker would not be able to 

turn off the equipment immediately because of the lack of labels. 

This could increase the risk of severe injury. (Tr. 122). 

The location of the power switches did not identify the units they 

controlled. There were several panels in one central area, and they 

regulated the operation of the entire plant. Accordingly, the citation 

should be affirmed. 

Citation No. 351654 

The Secretary alleges that an opening at the edge of a travelway 

should have had a safety chain or barrier around it to prevent someone from 

falling of~ the platform. It is alleged there was a violation of 30 CFR 

56.11-12. 

4/ Mandatory. Principal power switches shall be labeled to show which 

units they control, unless identification can be made readily by 

location. 

5/ Mandatory. Openings above, below, or near travelways through which men 

or materials may fall shall be protected by railings, barriers, or 

covers. Where it is impractical to install such protective devices, 

adequate warning signals shall be installed. 

3·2,.... ,, uO 
The evidence is uncontroverted. 

1. Between the edge of a travelway platform and another structure 

there was an opening which did not have any guard or barrier 

around it to prevent someone from falling through it. (Tr. 122, 

P-4). 

2. The walkway 1s s1x feet above the ground (Tr. 123). 

3. The opening is near the area where the electrical panels are 

located which is visited frequently by those attending to the 

power switches. (Tr. 123, 143). 

4. At times the dust in the area hinders visibility which adds to 

the risk of falling (Tr. 123). 

There was a danger that someone could fall through the opening, 

particularly during periods of low visibility. The citation should be 

affirmed. 

Citation No. 351647 

The Secretary charges that the tail pglley under the Jaw crusher was 

not guarded as required by 30 CFR 56.14-1. 

The facts are uncontroverted. 

1. The self-cleaning tail pulley under the Jaw crusher lacked a 

guard (Tr. 124, P-5). 

2. Workers are in the area near the pulley when cleaning around 

the belt (Tr. 125, 146). 

3. Normally, a worker would be 18 inches to 36 inches from the 

pulley while cleaning the area with a shovel (Tr. 147). 

4. The pulley protrudes about 6 inches into the walkway area 

(Tr. 145). 

5. The hazard 1s that while cleaning the area, a miner's clothing 

could be caught in the pulley, and the worker could be pulled 

into the equipment and sustain injuries (Tr. 124, 125). 

Miners can come in contact with the unguarded tail pulley while 

cleaning the belt. There is a risk of injury if a miner's clothing should 

get caught in the pulley. The standard was violated. The citation and 

penalty should be affirmed. 

6/ 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. 

3239 
Citation No. 351648 

Petitioner alleges that a broken ladder leading to the screening plant 

constituted a violation of 30 CFR 56.11-1.7 

The evidence is uncontroverted: 

1. A ladder leading to a work platform of the screening plant was 

broken at the top of the hand rail (Tr. 124,125, P-6). 

2. The ladder was not secured to the platform (Tr. 126). 

3. Workers were on the platform (Tr. 126). 

4. There was a danger that a miner could fall off the ladder to the 

ground 8 to 10 feet below (Tr. 126). 

5. There was an alternative safe means of access to the platform 

(Tr. 136). 

Although the conditton of the ladder cited by the inspector posed a 

danger to the miners, there was another safe means of access to the 

platform. The standard requires only that a safe means of access be 

provided. Respondent complied with the standard. Accordingly, the 

citation should be vacated. 

Citation No. 351652 

Petitioner cited Island County for an alleged violation of 30 CFR 

56.14-1. The standard is set forth in footnote 2. The evidence is 

uncontroverted. 

1. A self-cleaning tail pulley 1n the plant area was not guarded 

(Tr. 127, P-7). 

2. The pulley protruded approximately 2-1/2 feet into the walkway 

area (Tr. 145). 

3. A miner could be pulled into the machine and severely injured (Tr. 

127, 128). 

The standard requires that pulleys be guarded if they are in an area 

where they could be contacted by workers and cause injury. The facts 

establish a violation of this prov1s1on. The citation should be affirmed. 

Citation 351646 

The Secretary contends that Island County violated 30 CFR 56.11-5. 8 

7/ Mandatory. Safe means of access shall be provided and maintained to all 

working places. 

8/ Mandatory. Fixe<l ladders shall be anchored securely and installed to 

provide at least 3 inches of toe clearance. 
This standard requires that fixed ladders be anchored securely. The facts 

are uncontroverted. 

1. Two ladders providing access to the work platform in the rolls 

crusher area and to a work area around the electric motor were 

not secured (Tr. 128, 129, P-8). 

2. The ladder to the crusher was 7 to 8 feet high. The other one 

was 8 to 10 feet high (Tr. 130, 131, 135). 

3. A miner was observed using the ladder to the crusher (Tr. 130, 

131). 

4. The platform around the rolls crusher is used for maintenance 

work (Tr. 145). 

The ladders were used by the miners and were unsecured. The citation should 

be affirmed. 

Citation No. 351650 

Petitioner charges Island County violated 30 CFR 56.12-32 9 . 

The evidence is uncontroverted. 

1. A junction box to the electric motor of the jaw crusher lacked 

a cover plate. (Tr. 131). 

2. The inspector did not observe any testing or repair work being 

done on the motor at the time of the inspection (Tr. 136). 

3. The wires of the motor were exposed to dust and moisture which 

could generate an electric shock (Tr. 132). 

The standard requires that cover plates.remain on electrical equipment 

at all times unless maintenance work is being performed. Island County did 

not refute Petitioner's statement that at the time of the inspection 

testing or repairs on the motor were not in progress. The citation should 

be affirmed. 

Citation No. 351649 

Secretary cited Island County for an alleged violation of 30 CFR 

56.12-18. The standard is set forth in footnote 4. The facts are 

uncontroverted. 

1. Ten of the 12 electrical panels in the electrical shed were not 

labeled (Tr. 132, 133). 

9/ Mandatory. Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except during 

testing or repairs. 

3241 
2. The inspector could not tell by the panels' location which 

units they controlled (Tr. 137). 

3. The danger to be apprehended is that the power to a particular 

machine could not be turned off quickly if someone were caught 

in the equipment (Tr. 133). 

Unless their location clearly indicates which units they control, 

power switches are to be labeled. Island County had not complied with the 

standard. The citation should be affirmed. 

Citation No. 351655 

The Secretary alleges that Island County did not have a stretcher in 

the area as required by 30 CFR 56.15-1.10 The transcript is incomplete 

on the proof of this citation. (Tr. 133). However, Island County concedes 

that the prerequisite evidence was erroneously deleted from the transcript 

(Brief, page 16). 

Accordingly, the Citation should be affirmed. 

VII 

Island County disputes the appropriateness of the Secretary's proposed 

penalties. The penalty initially assessed by the Secretary for each 

citation is reduced as set forth in the ORDER. This reduction reflects the 

extraordinary good faith effort of Island County to abate the violative 

conditions. The mine was shut down irmnediately after the citations were 

issued, and the necessary repairs were made before it re-opened a day and a 

half later. (Tr. 157-159). This was done even though a withdrawal order 

had not been issued, and the inspector had given Island County up to 5 days 

to effect some of the repairs. 

CONCLUSIONS OF LAW 

Island County in its capacity as a mine operator 

Pit and Mill is subject to the 1977 Mine Safety Act. 

at issue except No. 351648 should be affirmed. 

of the Camano Island 

All of the citations 

10/ Mandatory. Adequate first-aid materials, including stretchers and 

blankets, shall be provided at places convenient to all working areas. 

Water or neutralizing agents shall be available where corrosive 

chemicals or other harmful substances are stored, handled, or used. 

3242 
ORDER 

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

enter the following order. 

1. The citations listed below are affirmed and the corresponding 

penalty is assessed. 

351642 

351644 

351646 

351647 

351649 

351650 

351651 

351652 

351653 

351654 

351655 

$ 14 

$ 30 

$ 14 

$ 30 

$ 22 

$ 8 

$ 16 

$ 30 

$ 22 

$ 14 

$ 8 

2. Citation No. 351648 and the proposed penalty therefor are 

VACATED. 

Distribution: 

/ 

I Law Judge 

Faye Sutton, Esq., Office of Robert A. Friel, Associate Regional 

Solicitor,United States Department of Labor, 8003 Federal Office Building, 

Seattle, Washington 98174 

Alan R. Hancock, Esq., Office of David F. Thiele, Prosecuting Attorney of 

Island County, State of Washington, Courthouse, Coupeville, Washington 

98239 

3243 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 NOV 1980 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Order 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 80-110-R 

Shoemaker Mine 

Civil Penalty Proceeding 

Docket No. WEVA 80-361 

A.C. No. 46-01436-03086V 

Shoemaker Mine 

DECISION 

Appearances: 

Before: 

Michel Nardi, Esq., Pittsburgh, Pennsylvania, for Consolidation 

Coal Co.; 

David Street, Esq., Philadelphia, Pennsylvania, for Secretary 

of Labor. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This action was commenced on November 23, 1979, when Consolidation Coal 

Company (hereinafter Consol) filed a notice of contest of an order of withdrawal issued on November 1, 1979, under section 104(d)(l) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 814(d)(l) (hereinafter the 

Act). On June 16, 1980, the Secretary of Labor, Mine Safety and Health 

Administration (hereinafter MSHA) filed a proposal for assessment of a civil 

penalty against Consol for violation of 30 C.F.R. § 75.400. On July 11, 

1980, I ordered these cases consolidated under Procedural Rule 12 of the 

Federal Mine Safety and Health Review Commission (hereinafter Commission) 

29 C.F.k. 5 2700.12. 

3244, 
A hearing was held in Pittsburgh, Pennsylvania, on June 17, 1980. 

Charles Coffield, Michael Blevins, and Frank Cicholski testified on behalf 

of MSHA. Charles Adams, Lloyd Behrens, Jerry Pack, Jerry Ernest, and 

Randy Nolte testified on behalf of Consol. Both parties submitted posthearing briefs. 

MSHA alleged that Consol is chargeable with unwarrantable.failure to 

comply with the regulation concerning accumulation of combustible materials 

and that a civil penalty should be assessed. Consol denies the allegations. 

ISSUES 

The first general issue is whether the order under section 104(d)(l) 

was properly issued. The second general issue is whether Consol violated 

the Act or regulations as charged by MSHA and, if so, the amount of the 

civil penalty which should be assessed. 

APPLICABLE LAW 

Section 104(d)(l) of the Act, 30 u.s.c. § 814(d)(l), provides as follows: 

If, upon inspection of a coal or other mine, an authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, 

and if he also finds that, while the conditions created by 

such violation do not cause imminent danger, such violation 

is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine 

safety or health hazard, and if he finds such violation to 

be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the operator under this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the 

issuance of such citation, an authorized representative of 

the Secretary finds another violation of any mandatory health 

or safety standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so comply, he 

shall forthwith issue an order requiring the operator to cause 

all persons in the area affected by such violation, except 

those persons referred to in subsection (c) to be withdrawn 

from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that 

such violation has been abated. 

30 C.F.R. § 75.400 provides as follows: "Coal dust, including float 

coal dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." 

324S 
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of 

the business of the operator charged, whether the operator 

was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification 

of a violation. 

STIPULATIONS 

The parties stipulated the following: 

1. Shoemaker Mine is owned and operated by Consol. 

2. Consol and the Shoemaker Mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 

1977. 

3. The administrative law judge has jurisdiction over 

this proceeding pursuant to Section 105 of the 1977 Act. 

4. The inspector who issued the subject order was a 

duly authorized representative of the Secretary of Labor. 

5. A true and correct copy of the subject order was 

properly served upon the operator in accordance with 

Section 104(a) of the 1977 Act. 

6. Copies of the subject order and termination are 

authentic and may be admitted into evidence for the purpose of establishing their issuance, and not for the truthfulness or relevancy of any statements asserted therein. 

7. The alleged violation was abated in a timely 

fashion and the operator demonstrated good faith in 

attaining abatement. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. Shoemaker Mine is owned and operated by Consol. 

2. Inspector Charles Coffield, who issued the order in controversy, 

was a duly authorized representative of the Secretary of Labor at all 

times pertinent herein. 

3246 
3. On November 1, 1979, Inspector Coffield performed a regular inspection of the Shoemaker Mine and, at 10:55 a.m., issued Order No. 0808600 

pursuant to section 104(d)(l) of the Act for a violation of 30 C.F.R. § 75.400 

in that there were accumulations of float coal dust in numerous locations 

along and under the coal conveyor mother belt, the 2-D5 north section belt, 

and the structures and machinery in the vicinity of those belts. 

4. The evidence of record established the existence of piles of combustible materials as follows: 

a. Numerous areas of float coal dust and coal dust along the conveyor 

belts which extended up to 4 feet in width, hundreds of feet in length, 10 inches 

in depth and which were black in color. 

b. Float coal dust up to 12 inches in depth on the overcasts containing 

the mother belt. 

5. Immediately before the order in question was issued, the 2-D5 north 

section belt was out of alignment and was smoking and the belt was de-energized 

by Consol prior to the issuance of the order. 

6. The preshift examiner's report for this section prior to the issuance 

of the order in question noted that the mother belt needed to be dusted and 

drug but no action had been taken by Consol prior to the issuance of the 

order. 

7. Prior to the issuance of the order, Inspector Coffield observed two 

miners cleaning under the intersection of the mother belt and the longwall 

belt (not cited in the order) but those miners stated that they were only 

there to shovel a large pile of coal and then were to return to their section. 

8. MSHA established that the coal dust and float coal dust accumulated 

along the conveyor belts as set forth above. 

9. The accumulation of coal dust and float coal dust in the active 

workings of the Shoemaker Mine did not constitute an imminent danger because 

there was no immediate source of ignition at the time the order was issued. 

10. The accumulation of coal dust and float coal dust in the active 

workings of the Shoemaker Mine had been present for more than one working 

shift at the time the order was issued. 

11. The accumulation of coal dust and float coal dust in the active 

workings of the Shoemaker Mine created a safety hazard because, in the event 

of a fire or explosion, it would propagate such fire or explosion. 

12. Consol is a large operator and the assessment of a civil penalty 

herein will not affect its ability to continue in operation. 

13. The condition cited in the order was abated in a timely fashion 

and Consol demonstrated good faith in attaining abatement. 

3247 
DISCUSSION 

Contest of Order 

After the instant action was commenced, the Commission issued two decisions construing the applicable regulation in controversy. On December 12, 

1979, the Commission adopted a new standard for determining when a violation 

of 30 C. F. R. § 7 5. 400 occurs. In Old Ben Coal Company, 1 BNA MSHR 2241, 

Docket No. VINC 74-111 (December 12, 1979), the Commission disagreed with the 

former standard announced by the Interior Board of Mine Operations Appeals 

that a violation of the mandatory standard did not occur even though an accumulation of combustible materials was present where the operator commenced 

abatement within a reasonable time after it had notice of the existence of the 

accumulation. The Commission held that the existence of an accumulation was 

a violation of the mandatory standard and that the action of the operator 

thereafter to abate this condition was-, irrelevant to the issue of whether 

a violation occurred. 

On October 24, 1980, the Commission in Old Ben Coal Company, Docket 

No. VINC 75-180-P, etc. (October 24, 1980), stated as follows: 

We have recognized that some spillage of combustible 

materials may be inevitable in mining operations. However, 

it is clear that those masses of combustible materials 

which could cause or propagate a fire or explosion are what 

Congress intended to proscribe. Thus, we hold that an 

accumulation exists where the quantity of combustible 

materials is such that, in the judgment of the authorized 

representative of the Secretary, it likely could cause or 

propagate a fire or explosion if an ignition source were 

present. 

Id. at 3. 

The issue of whether the standard was violated in this case was vigorously 

contested at the hearing. Consol called five witnesses in its case. Charles 

Adams, who conducted the preshift examination of the mother belt, testified 

that it was in good condition but required one area of rock dusting and another 

area of dragging. He reported this condition in the preshift book. He did 

not travel the overcasts during his examination. Lloyd Behrens, Consol's 

escort during this inspection, testified that he saw one pile of coal dust near 

a scraper board and some other areas that needed rock dusting and dragging. He 

testified that this condition would have been corrected during the shift if 

no order were issued. Jerry Pack, the section foreman, stated that although 

the order in question was issued approximately 3 hours after the shift began, 

he had not had an opportunity to make an on shift examination of the area 

because "I had my hands full up at the face." He saw an area along the belt 

which was approximately 150 feet long and covered with float coal dust which 

looked dark. He conceded that in the event of a fire that float coal dust 

would speed the ignition of the fire. Jerry Ernest, the mine foreman, testified that he saw approximately 60 feet of float coal dust but that it was 

3248 
"nothing to worry about" because it was only a thin film of float coal dust 

on top of 4 inches of rock dust. He stated that there were four men assigned 

to work on the belt at the time the order was issued. As its last witness, 

Consol called Randy Nolte, a UMWA member, who was assigned to clean the belt. 

He admitted that there was more float coal dust in the area around the belt 

than usual, but he could not estimate the depth or extent of this coal dust. 

MSHA inspector Charles Coffield testified that he observed and measured 

accumulations of float ·coal dust up to 30 inches deep on overcasts and up to 

12 inches deep on the floor of the mine. He described areas 200, 250, and 

1500 feet long and .4 to 15 feet wide which were black in color. The float 

coal dust completely covered the bottom, cribbing, pumps, pipeline, and belt 

structures. There were electric motors and power wires in the area which 

were ignition sources. He smelled smoke coming from the 2-D5 north belt 

in an area where there was 12 inches of float coal dust on the bottom. 

He stated that he saw more than 50 locations along the belts where there 

were accumulations 8 to 18 inches deep, 3 to 4 feet wide, and 2 to 5 feet 

long. He decided to issue an unwarrantable failure order pursuant to 

section 104(d)(l) after Consol deenergized the 2-D5 north belt and no 

imminent danger existed. In his opinion the unwarrantable failure order was 

properly issued because of the following factors: (1) the extent of the area 

of violation and the depth of float coal dust; (2) the accumulations he 

observed would have taken at least 1-1/2 to 2 days to accumulate and could 

have been present for up to 1 month; (3) the preshift examiners should have 

seen and reported this condition; and (4) in the event of an igni,tion in the 

area, the accumulation of float coal dust would have caused a mine explosion. 

Inspector Coffield talked to two miners who were shoveling a pile of loose 

coal by the belt. They told him that they were only assigned to shovel that 

pile of coal and then were to return to their section. 

Michael Blevins, the UMWA walkaround on this inspection, also testified 

on behalf of MSHA. He stated that he accompanied Inspector Coffield throughout 

the inspection in question. The deepest accumulation of float coal dust he 

observed was approximately 12 inches deep at an overcast. He specifically 

denied seeing any accumulation 30 inches deep. The overall condition of the 

belts was that rock dusting was needed on certain portions and the majority 

of the belts needed to be sho~eled. He stated, "I thought the belt line was 

a mess." However, Mr. Blevins disagreed with Inspector Coffield concerning 

the depth of the accumulations. While the inspector testified that the 

average depth was 8 to 12 inches, Mr. Blevins estimated only 4 to 5 inches. 

Specifically he denied any accumulations up to 12 inches on the bottom, belt 

structures, and pumps. MSHA called Frank Cicholski, a UMWA safety committeeman, 

as a rebuttal witness. He testified that he observed the belts approximately 

5 hours after the order of withdrawal was issued. He observed 10 to 15 locations of coal dust which were approximately 10 inches deep. He denied seeing 

any accumulations deeper than that. He estimated that there were another 

15 to 20 locations where there was a moderate amount of accumulation of coal 

dust up to 2 inches in depth. 

In the instant case, I find that the teitimony of the witnesses called 

by MSHA concerning the amount and extent of /float coal dust and coal dust 

was more credible than the testimony of the witnesses called by Consol. While 
it appears that some of the testimony of Inspector Coffield was exaggerated, 

~·~·, finding 30 inches of float coal dust on an overcast and an 8- to 

12-inch average depth of the numerous accumulations on the floor, the preponderance of the evidence establishes that there were numerous areas along the 

conveyor belts in question where float coal dust and coal dust accumulated 

for hundreds of feet, several inches deep, and were black in color. The 

amount and extent of the combustible float coal dust and coal dust established 

that this was an accumulation in violation of 30 C.F.R. § 75.400 rather than 

a mere spillage which would not constitute a violation. Therefore, I find 

that Consol violated 30 C.F.R. § 75.400 as alleged by MSHA. 

The order in question also alleged that the violation was due to the 

"unwarrantable failure" of Consol to comply with the mandatory standard. 

The term "unwarrantable failure" was defined by the Interior Board of Mine 

Operation Appeals as follows: 

[A]n inspector should find that a violation of any mandatory standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the operator 

involved has failed to abate the conditions or practices constituting such violation, conditions or practices which the 

operator knew or should have known existed or which it failed 

to abate because of a lack of due diligence, or because of 

indifference or a lack of reasonable care. 

Zeigler Coal Company, 7 IBMA 280 (1977). This definition was approved in the 

Legislative History of the 1977 Act. S. Rpt. No. 95-181, 95th Cong., 1st Sess. 

32 (1977). In the Old Ben Coal Company decision issued in December, 1979, the 

Commission upheld an order of withdrawal based upon the operator's unwarrantable 

failure to comply with 30 C.F.R. § 75.400. The Commission found that the violation was an unwarrantable failure even though the evidence established that 

the spillage occurred during the previous shift. 

In the instant case, the preponderance of the evidence establishes that 

the accumulation of float coal dust and coal dust had been present for more 

than one working shift. Although the need to rock dust and drag the mother 

belt was reported on the preshift examination, Consol failed to conduct an 

on shift examination of this condition or establish that it had taken the 

necessary action to correct this condition. Even if Consol is correct in its 

assertion that this entire condition would have been corrected in the normal 

course of operations during the shift on which the order was written, this fact 

does not negate a finding of a violation of the mandatory standard or the fact 

that such a violation was unwarrantable. The extent and depth of the accumulation in question, as established by the evidence of record, shows that 

Consol knew or should have known of the accumulation and failed to exercise 

reasonable care to abate the condition. Therefore, the violation was caused 

by Consol's unwarrantable failure to comply with the mandatory standard. 

3250 
Assessment of Civil Penalty 

MSHA proposed that a civil penalty in the amount of $3,500 be assessed 

for this violation. Consol's history of assessed violations at this mine in 

the 2 years prior to this order shows 937 violations of the Act or mandatory 

standards. Seventy-one of these violations were of the same standard, 30 C.F.R. 

§ 75.400, cited in this case. This history is significant in that there was 

almost one violation per week of the regulation proscribing the accumulation 

of combustible materials. 

I have previously found that Consol was negligent in that it knew or 

should have known of the accumulation in question. MSHA has failed to 

establish its claim of gross negligence since there was no evidence of a 

reckless disregard of the mandatory standard or reckless or deliberate 

failure to correct an unsafe condition which was known to exist. Although 

Consol was working on the general area of the conveyor belts prior to the 

issuance of the order in question, it failed to take necessary action to 

correct this condition. Thus, Consol is chargeable with ordinary negligence. 

The witnesses for both sides agreed that an accumulation of combustible 

materials could propagate a mine fire or explosion. Thus, a serious safety 

hazard was present. 

However, I find that the description of the extent of the accumulation 

was exaggerated by Inspector Coffield. Since the proposed assessment of a 

civil penalty was based upon the inspector's description of the extent of 

the accumulation - which description, according to all of the other witnesses 

in the case, was substantially exaggerated - it follows that the proposed 

assessment was based upon a more extensive accumulation than was established 

by the evidence of record. 

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 

$1,750 should be imposed for the violation found to have occurred. 

CONCLUSIONS OF LAW 

1. The administrative law judge has jurisdiction of this proceeding 

pursuant to section 105 of the Act. 

2. Consol negligently permitted coal dust and float coal dust to 

accumulate in the Shoemaker Mine on November 1, 1979, in violation of 

30 C.F.R. § 75.400. 

3. The violation of the above mandatory standard was caused by the 

unwarrantable failure of Consol to comply with the mandatory standard. 

4. At the time Order No. 0808600 was issued, there was in existence a 

valid citation pursuant to section 104(d)(l) of the Act on October 30, 1979, 

and, hence, Order No. 0808600 was properly issued. 

3251 
5. Consol's contest of Order No. 0808600 is denied. 

6. Under the criteria set forth in section llO(i) of the Act, a 

civil penalty in the amount of $1,750 shall be imposed for a violation of 

30 C.F.R. § 75.400. 

ORDER 

WHEREFORE IT IS ORDERED that the contest of Order No. 0808600 is 

DENIED and the subject order is AFFIRMED. 

IT IS FURTHER ORDERED that Consol pay the sum of $1,750 within 30 days 

of the date of this decision as a civil penalty for the violation of 30 C.F.R. 

§ 75.400. 

David E. Street, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

3252 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

M.OV 6 1980 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Citations 

v. Docket No. PENN 80-224-R 

Citation No. 838781; 4/10/80 

RAY MARSHALL, SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT Docket No. PENN 80-225-R 

OF LABOR, Citation No. 838782; 4/10/80 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Docket No. PENN 80-226-R 

Citation No. 838783; 4/10/80 

Appearances: 

Before: 

Docket No. PENN 80-233-R 

Citation No. 838747; 4/9/80 

Renton Mine 

DECISION 

William Dickey, Jr., Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Contestant, Consolidation Coal 

Company; 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Respondent, MSHA. 

Judge Merlin 

These cases are Contests of Citations filed by Consolidation Coal 

Company. A hearing was held on October 28, 1980. 

At the hearing, the parties agreed to the following stipulations 

(Tr. 4-5): 

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

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

the Federal Mine Safety and Health Act of 1977. 

(3) I have jurisdiction of this case pursuant to section 

105 of the Act. 

3253 
(4) The inspectors who issued these subject citations 

were duly authorized representatives of the Secretary. 

(5) True and correct copies of the subject citations 

were properly served upon the operator in accordance with the 

1977 Act. 

(6) Copies of the subject citations are authentic and 

may be admitted into evidence for the purpose of establishing 

their issuance, but not for the truthfulness or relevance of 

any of the statements asserted therein. 

(7) Docket No. PENN 80-224-R will be tried, and the decision with respect thereto will govern Docket No. PENN 80-225-R. 

Similarly, Docket No. PENN 80-226-R will be tried, and the 

decision reached therein will govern Docket No. PENN 80-233-R. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of the operator and MSHA (Tr. 5-121). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 121-122). 

A decision was rendered from the bench setting forth findings, conclusions, 

and determinations with respect to the alleged violation (Tr. 134-139). 

BENCH DECISION 

The bench decision is as follows: 

The docket numbers in these cases are Penn 80-224-R, 

80-225-R, 80-226-R and 80-233-R. 

These cases are notices of contest challenging section 

104(a) citations for alleged violations of 30 CFR 75.1404-1. 

Counsel for both parties agreed to try 80-224-R and that the 

decision in that case would govern 80-225-R. Counsel further 

agreed to try 80-226-R and that the decision there would 

govern 80-233-R. 

The same inspector issued these citations in 80-224-R and 

80-226-R. At issue in all these cases is the meaning of 

section 75.1404-1 of the mandatory standards. This section 

provides as follows: 

A locomotive equipped with a dual braking 

system will be deemed to satisfy the requirements 

of section 75.1404 for a train comprised of such 

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

3254 
capabilities and at speeds consistent with the condition of the haulage road. A trailing locomotive 

or equivalent device should be used on trains that 

are operated on ascending grades. 

The specific question presented is whether the word 

"should" in the last sentence of section 75.1404-1 is mandatory or whether it is merely a recommendation or suggestion which the ope-rator can follow or not as it wishes. 

After due consideration I conclude the language in question imposes a mandatory obligation upon the operator. I 

recognize that in the statutory sections contained in the 

mandatory standards the word "shall" appears and that in 

those sections of the mandatory standards which expand upon 

the original statutory provisions and which are only regulations, the words "shall" and "should" both are used. I have 

reviewed all the mandatory standards. I have found that the 

word "should" appears in many other standards besides section 

75.1404-1, including roof control and ventilation sections. 

To hold that "should" is merely discretionary would, therefore, create a great gap in enforcement, which I do not 

believe was the intent of the drafters of the regulations. 

Where discretion is intended and allowed, the word "may" is 

used in the regulations. Accordingly, I hold that the word 

"should" in this section is mandatory. 

In addition, it must be noted that section 75.1404-1 is, 

itself, an exception to the requirements of section 75.1404 

regarding automatic brakes in that it allows an alternative 

method of satisfying the primary statutory mandate for 

automatic brakes. For this reason, also, the al1owance of 

dual braking systems on locomotives operated within their 

design capabilities and.at appropriate speeds, together with 

trailing locomotives or equivalent devices, must be held a 

requirement of the operator. 

Admittedly, the language in question may not be as clear 

as it might be, but it is sufficiently clear for the operator 

to have understood that a trailing locomotive or equivalent 

device was required of it. Indeed, the operator's continued 

experimentation in this area demonstrates that this was so. 

The inspector's testimony that the dragging devices in 

both citations were not in operable condition is uncontradicted, and I accept it. I further conclude that both 

citations were based upon conditions which occurred on ascending grades. The inspector's testimony on this point is supported by the numerical grade specifications on the operator's 

own mine map. Moreover, the operator's assistant mine foreman 

3255 
specifically testified that the grade involved in the citation 

in PENN 80-226-R was ascending. Section 75.1404-1 requires 

equivalent devices on ascending grades. It does not require 

any particular degree of ascent. These cases fall squarely 

within the express terms of the standard. Moreover, the 

inspector testified about the dangers presented by full mine 

cars ascending even a one percent grade. I find this testimony persuasive. Here the trips contained 30 cars each, 

which according to the operator's mine foreman, held 8 tons 

apiece. I further find, based upon both the inspector's 

testimony and that of the mine foreman, that with respect to 

both citations the inspector could see far enough to determine that trips were approaching on ascending grades. 

I recognize that the operator was experimenting with 

equivalent devices. However, this does not create an exception to the mandatory standard. It does, however, indicate 

that the operator's negligence, if any, was minimal •. This, 

of course, is a factor which should be taken into account 

in the penalty aspects of these cases when they arise between 

the parties. So too, the length of time the drags had not 

been in operable condition goes to negligence, not to the 

existence of a violation. 

I further recognize that the Secretary has no published 

criteria with respect to equivalent devices. However, according to the mine foreman, after some experimentation the operator has now come up with an effective drag or equivalent 

device. The subject citations were issued because the drags 

then being used were not in an operable position, and the 

inspector made clear that if they had been in an operable 

position, he would not have issued these citations. I believe 

it preferable for operators to devise equivalent devices they 

can work with rather than have the Secretary get further into 

the business of telling operators exactly how they must meet 

the requirements of the law. 

In light of the foregoing, the citations in these 

docket numbers are upheld, and the notices of contest are 

dismissed. 

ORDER 

The foregoing bench decision is hereby AFFIRMED. 

The four Notices of Contest contained in these cases are hereby DISMISSED. 

Assistant Chief Administrative Law Judge 

3256 / 
Distribution: 

Hi lliam H. Dickey, Jr. , Esq. , Consolidation Coal Company, 

1800 Washington Road, Pittsbu·rgh, PA 15241 (Certified Mail) 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

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

PA 19104 (Certified Mail) 

Harrison Combs, Esq., UMWA, 900 Fifteenth St., NW., Washington, 

DC 20005 (Certified Mail) 

3257 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 0 t980 

WILLIAM A. ROBISON, Complaint of Discharge, 

Complainant Discrimination, or Interference 

v. 

Docket No. WEVA 80-246-D 

SOUTH UNION COAL COMPANY, 

Respondent Jamison No. 12 Mine 

DECISION 

.Appearances: . David P. Born, Esq., and Richard Bunner, Esq., Fairmont, 

West Virginia, for Complainant; 

Before: 

William H. Higinbotham, Esq., Morgantown, West Virginia, 

for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued July 29, 1980, a hearing in the 

above-entitled proceeding was held on September 30, 1980, in Clarksburg, 

West Virginia, under section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977. 

After the parties had completed their presentations of evidence, I 

rendered the bench decision which is reproduced below (Tr. 209-211): 

This proceeding involves a discrimination complaint 

filed in Docket No. WEVA 80-246-D on February 25, 1980, as 

supplemented on April 10, 1980, alleging that complainant 

was employed by South Union Coal Company as a section foreman at its Jamison No. 12 Mine. On or about May 5, 1979, 

complainant alleges that he was unlawfully discharged by 

South Union's general mine foreman for his failure to perform acts which would have caused complainant to violate a 

mandatory health and safety standard. Complainant seeks the 

relief available under section 105(c)(3) of the Federal Mine 

Safety and Health Act of 1977 for the alleged violation of 

section 105(c)(l) of the Act. 1) 

Complainant first filed a complaint with the Mine 

Safety and Health Administration (MSHA) on May 8, 1979. 

On February 4, 1980, MSHA notified complainant that its 

investigation had revealed that no violation of section 

l/ Section 105(c)(l) provides in pertinent part that no person shall discharge 

a miner because he has "* * * filed or made a complaint under or related to this 

Act, including a complaint notifying the operator or the operator's agent * * * 

of an alleged danger or safety or health violation in a coal or other mine * * * " 

3258 
105(c)(l) had occurred. Since that finding meant that 

MSHA would not file a complaint with the Commission on 

complainant's behalf under section 105(c)(2) of the Act, 

complainant filed his own complaint with the Commission 

under section 105(c)(3) of the Act and the hearing has 

been held under section 105(c)(3) of the Act. 

The issue in this case, of course, is whether a violation of section 105(c)(l) did occur, when the general.mine 

foreman discharged Mr. Robison on May 5, 1979. I shall 

make some findings of fact on which my decision will be 

based. I shall make the findings in numbered paragraphs. 

(1) William A. Robison began working for South Union 

Coal Company on November 10, 1978, as a section foreman. 

Prior to that time, Mr. Robison had worked for about 

19 year~ in various capacities for Consolidation Coal 

Company. 

(2) South Union Coal Company has stipulated that it 

is subject to the Commission's jurisdiction and to the provisions of the Federal Mine Safety and Health Act of 1977. 

The company did not produce coal continuously during the 

month of September 1980 because of the poor coal market 

existing at that time, but its normal production is from 

5,500 to 6,000 tons per month. The company normally 

employs about 50 coal miners and has seven salaried 

employees. 

(3) On May 3, 1979, Mr. Robison went to work on his 

normal evening shift which ran from 4 p.m. to midnight. He 

made a check of the working faces, without including an air 

reading at that time, and indicated to the operator of the 

continuous-mining machine, Mr. Frank Shorter, that he could 

commence mining in the No. 6 entry. 

(4) Mr. Shorter began mining, but found that there was 

an unusual amount of dust coming back over the continuousmining machine. Therefore, Mr. Shorter and his assistant, 

Mr. Randy Martin, determined that they would not run the 

continuous-mining machine in the midst of an excessive 

amount of dust. They stopped running the machine and told 

Mr. Robison that they would not operate the machine until 

ventilation conditions were improved. 

(5) Mr. Robison had them cut another shuttle car or so 

of coal, so that he could try to determine why there was so 

much dust. After he had seen the amount of dust that existed, 

he agreed something needed to be done to improve ventilation. 

3259 
(6) Mr. Robison began checking the stoppings and he 

also called outside and reported that ventilation problems 

existed. At the same time, or very shortly after that, 

Mr. Charles Gorbey called outside and asked that the safety 

committee, which worked the day shift, should come to the 

mine to examine ventilation conditions. 

(7) Before much longer, the mine superintendent, 

Mr. Beres, and the mine foreman, Mr. Kincell, came into the 

mine. The safety committee also came into the mine. All 

are in agreement that there was an insufficient amount of 

air at the beginning of the shift. 

(8) After several stoppings had been tightened and 

other work had been done on the ventilation system, the 

proper amount of air was obtained and the mine foreman, 

Mr. Kincell, was able to get an air reading with his 

anemometer showing that a volume of 3,100 cubic feet of 

air per minute existed behind the brattice curtain coming 

into the No. 6 entry. When Mr. Robison left the mine at 

the end of his shift, he was able to report that about 

12,000 cubic feet of air existed at the last open crosscut. 

(9) After Mr. Kincell, the mine foreman, had determined that an adequate amount of air existed at the working 

face, he asked Mr. Robison to get Mr. Martin and Mr. Shorter 

to work in the actual production of coal, while the other 

men continued to work on the ventilation system. 

(10) Mr. Shorter and Mr. Martin declined to work in 

response to Mr. Robison's request, but when Mr. Robison 

reported to Hr. Kincell that the two men wer·e unresponsive 

to his request, it was agreed that Mr. Kincell personally 

should ask them to work. Mr. Kincell did ask the two men 

to work, and they agreed to resume production of coal for 

the remainder of that shift. The result was that Mr. Robison 

was able to report about 21 shuttle cars of coal having been 

produced on Y.iay 3, which was about an average amount because 

production ranged from 21 to 46 cars of coal on an average 

working shift. 

(11) When Mr. Robison reported for work on the next 

day, which was May 4, 1979, Mr. Kincell, the mine foreman, 

asked him to make certain before he began producing coal 

that the ventilation was up to the required amount before 

he began producing coal. Mr. Robison again found that there 

was not an adequate amount of ventilation at the beginning 

of the shift. It was again necessary to do some tightening 

of curtains and stoppings in order to get the proper amount 

of air before production was begun. 

3260 
(12) On May 4, Mr. Robison encountered other difficulties 

in that a shuttle car had a defective cable which required a 

splice. · That put the shuttle car out of commission from about 

7:30 to 8 p.m. A roof-bolting machine also.had a problem and 

was out of service from about 10 to 10:45 p.m. Additionally, 

the roof-bolting machine was mired in mud from time to time, 

which kept the miners from being able to bolt as rapidly and 

in the places they would like to have bolted. Finally, about 

11 p.m. the tramming chain on the continuous-mining machine 

broke, so that toward the end of the shift on May 4 

Mr. Robison found that he had a number of problems to deal 

with. 

(13) On May 5, which was a Saturday, Mr. Robison 

received a call from Mr. Kincell, the mine foreman, who 

advised Mr. Robison that he was going to have to discharge 

Mr. Robison. Mr. Robison asked that he be permitted to 

come to the mine and discuss the matter in person with 

Mr. Kincell. 

(14) Mr. Robison did go to the mine and they did have 

a discussion. What was said by both men during that discussion is largely uncontroverted by either man. Mr. Kincell. 

gave as his primary reason for discharging Mr. Robison the 

fact that a lot of backstabbing was going on, which 

Mr. Kincell did not think he could continue to tolerate. 

During the course of the conversation, Mr. Kincell did tell 

Mr. Robison that he believed Mr. Robison could have persuaded 

Mr. Shorter and Mr. Martin to work on Thursday, May 3, if he 

had really wanted to do so. 

(15) In his testimony, Mr. Kincell explained that by 

"backstabbing" he meant the fact that he had received, over a 

period of time, comments from the men on Mr. Robison's shift 

statements to the effec't that Mr. Robison was ambitious and 

would like to see Mr. Kincell terminated from his job as mine 

foreman so that Mr. Robison could achieve that position. 

(16) At first Mr. Kincell discounted such statements, 

but eventually became convinced that his authority in the 

mine was being eroded by Mr. Robison's comments. Mr. Kincell 

believed that he should have been able to receive more loyalty 

on the part of his section foreman than Mr. Robison had been 

demonstrating. 

(17) Another reason that Mr. Kincell gave for 

Mr. Robison's discharge was that he had found Mr. Robison's 

work to be unsatisfactory in several respects. The primary 

aspect that he found unsatisfactory was that Mr. Robison had 

failed to cut head coal with the continuous-mining machine, 

3261 
so as to increase the height of one of the entries for the 

purpose of converting it into a haulageway. Both the dayshift section foreman and the evening-shift section foreman 

are supposed to do some of the cutting of the head coal. 

Cutting head coal is not as productive as normal cutting 

with the continuous-mining machine. The result is that the 

section foreman who ·cuts head coal loses a certain amount of 

production. When the day-shift section foreman complained to 

Mr. Kincell that the evening shift--that is, Mr. Robison's 

shift--was not cutting the proper amount, or fair amount of 

head coal, the day-shift section foreman stopped cutting 

also. Therefore, Mr. Kincell found it necessary to speak to 

Hr. Robison a few times about his failure to cut head coal. 

(18) Another criticism Mr. Kincell had about Mr. Robison 

was that Mr. Robison had failed to follow the roof-control 

plan on or abouL May 3, 1979, because Mr. Robison had violated 

the roof-control plan by starting a cut in the crosscut from 

the No. 4 entry, at the same time that a cut had been made 

from the No. 3 entry into that same crosscut at a time when 

the roof had not been bolted after the first cut had been 

removed. Mr. Kincell stated that it was a combination of all 

of these matters which caused him to conclude in a discussion 

with the mine superintendent, Mr. Beres, that Mr. Robison 

should be discharged. 

I think that the findings above summarize the pertinent 

facts in this proceeding. 

This type of case is always difficult to decide. The 

testimony in this case is actually more consistent and all 

the witnesses have demonstrated a greater degree of 

credibility than in almost any one of these cases I have 

ever had. There is very little real controversy about what 

happened. 

The difficulty in all these cases, however, is that I 

am always faced with the question of whether respondent discharged complainant for the reason respondent says he was 

discharged, or whether respondent discharged the complainant 

because the complainant had been engaging in a protected 

activity which disturbed the respondent so much that it 

wanted to eliminate that particular individual from its 

payroll. l never find in one of these cases a situation 

in which the respondent's representative comes in and says, 

"Yes, that's right. I discharged this employee in violation of section 105(c)(l)." So it is always up to me to 

try to determine what really was the reason for the 

discharge. 

3282 
I do not think that there is any doubt but that 

Mr. Robison sincerely feels that he was discharged because 

he could not get Mr. Shorter and Mr. Martin to run the 

continuous-mining machine because M.r. Kincell agreed he 

had mentioned that as one of the things that was discussed 

on the day of the discharge. Nevertheless, I do not think· 

the preponderance of the evidence will permit me to find 

that the company did discharge Mr. Robison for that reason. 

I believe that the evidence shows that Mr. Robison was discharged for the reasons that Mr. Kincell gave, rather for 

the fact that Mr. Robison could not get some men to work 

in unsafe conditions with the result that a violation of 

section 105(c)(l) of the Act occurred. 

I shall give a few reasons for my coming to that conclusion. As I indicated in my questions of Mr. Kincell and 

I do not think Mr. Kincell ever really understood what I was 

driving at, but one of the things that has been inconsistent 

in Mr. Robison's complaint from the beginning was that I 

could not understand why Mr. Kincell would caution Mr. Robison 

when he went into the mine on May 4 to make sure that he had 

an adequate amount of ventilation, if Mr. Kincell would then 

discharge Mr. Robison the next day for failing to have persuaded two men to work when the air was less than it should 

have been on the section. I feel the fact that Mr. Kincell 

did tell Mr. Robison before he went in the mine on May 4 to 

make sure he had an adequate amount of ventilation is a very 

good reason for belieiving that Mr. Kincell would not have 

discharged Mr. Robison for failing to get two men to work at 

a time when the ventilation was not up to standard. 

I do not like to criticize Mr. Robison, but the evidence 

in this case does show that he did know certain things were 

not being done in the mine, but he said nothing about those 

things to his mine foreman, Mr. Kincell, or to the mine superintendent, Mr. Beres. Specifically, I am talking about the 

fact that Mr. Robison indicated in connection with his 

Exhibit 9 that he knew the brattice curtain was improperly 

hung on the right side of entry No. 6. He said when it was 

on the right side, the air would flow up the right side and 

then come down across the continuous-mining machine and that 

such air flow was not proper. 

Mr. Robison said that in his opinion the curtain should 

have been hung on the left side of the entry so that the air 

would have been directed only across the front of the 

continuous-mining machine, then behind the curtain, and down 

the No. 6 entry. Despite the fact that he knew that the 

curtain had been improperly installed, Mr. Robison did not 

say anything to Mr. Kincell about it. Mr. Robison said he had 

3263 
learned to keep quiet about things like that because you just 

do not upset the mine foreman unnecessarily by telling him 

about things that are wrong. Now if Mr. Robison had learned 

to cooperate like that and not rock the boat, so ta speak, I 

believe he was not complaining about safety in the mine or 

health conditions in the mine to such an extent that 

Mr. Kincell would have had a motivation for discharging him 

because of his failure to violate some safety or health 

standard at the request of the mine foreman. 

Also, again I do not like to be critical of Mr. Robison, 

but the evidence does show that he did not know what the last 

open crosscut volume of air should be under the company's 

ventilation plan. It is required under the plan to be 

9,000 cubic feet at the last open crosscut. Section 75.301 

of the regulations requires _the same thing. Mr. Robison had 

access to the ventilation plan (Tr. 183) and should have 

known what the volume of air was that was required at the 

last open crosscut. Otherwise, he would not know when he had 

an amount of ventilation that was adequate and when he did 

not. 

Likewise, it is a fact Mr. Robison indicated he had 

started that crosscut to the left of the No. 4 entry, when in 

fact the crosscut had not been bolted on the side beginning 

from the No. 3 entry. Additionally, Mr. Robison said that he 

generally had a higher production level on his shift than 

existed on the day shift. Maintenance of a high production 

level is indicative of a person who is ambitious and wants 

to get ahead. There is nothing wrong with being ambitious, 

except that there may have been some undercutting or undermining of the mine foreman in various remarks Mr. Robison may 

have made about him. In other words, the preponderance of the 

evidence supports a finding that the reasons Mr. Kincell gave 

for the discharge of Hr. Robison were the ones that brought 

about his discharge, rather than the reason that Mr. Robison 

thinks was the cause of his discharge. 

I find that Mr. Robison's discharge was not the result 

of his participation in a protected activity under section 

105(c)(l) of the Act; therefore, Mr. Robison's complaint 

will have to be denied. 

After the bench decision set forth above had been rendered, the Commission issued on October 14, 1980, its decision in Secretary of Labor on behalf 

of David Fasula v. Consolidation Coal Company, 2 FMSHRC , 80-10-13, holding that a prima facie case is made if a complainant shows that he engaged in 

a protected activity and that the adverse action or discharge was motivated 

in any part by the protected activity. The Commission noted that complainant 

has the burden of showing that his discharge was in any part caused by his 

3264 
engaging in a protected activity. The Commission also held that if respondent's evidence. shows that the discharge was in part the result of complainant's participation in a protected activity, respondent has the burden of 

showing that the discharge would have taken place in any event because of 

complainant's unprotected activity. 

Application of the ~ationale of the Pasula case to the facts in this proceeding does not require any change in my findings or conclusions. Although 

respondent's mine foreman agreed that he had mentioned during the discharge 

discussion that he ·believed that complainant could have persuaded the miners 

to work on May 3, 1979, the request that the miners resume operation of the 

continuous-mining machine was made after ventilation had been restored (Finding Nos. 9 and 10, supra; Tr. 178-179, 189-191). Therefore, the complainant 

was never asked to have miners work at a time when a proper volume of air was 

unavailable. The mine foreman referred to complainant's inability to get the 

miners to work on May 3 as an example of the failure of complainant, who was 

a section foreman, to provide the mine foreman with the type of support which 

the mine foreman believed that complainant should have provided at that time 

as well as on other occasions. 

I find that complainant did not sustain his burden under the Pasula case 

of showing that the mine foreman ever asked him to have miners to work when 

there was inadequate ventilation. In other words, in this case, complainant 

never did prove that the discharge was motivated in part by the fact that 

complainant was engaged in a protected activity. 

WHEREfOKE, it is ordered: 

The complaint filed in Docket No. WEVA 80-246-D is denied for failure to 

prove that complainant's discharge involved a violation of section 105(c)(l) 

of the Federal Mine Safety and Health Act of 1977. 

Distribution: 

~ e. J£tf..~ 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

David P. Born, Esq., Attorney for William A. Robison, 613 Deveny 

Building, P.O. Box 1305, Fairmont, WV 26554 (Certified Mail) 

Richard Bunner, Esq., Attorney for William A. Robison, Adams Street, 

Fairmont, WV 26554 (Certified Mail) 

William H. Higinbotham, Esq., Attorney for South Union Coal Company, 

174 Chancery Row, Morgantown, WV 26505 (Certified Mail) 

3265 
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 

Petitioner 

November 13, 1980 

Civil Penalty Proceedings 

Docket No. LAKE 80-173-M 

A.C. No. 20-00741-05003 

J.P. BURROUGHS & SONS, INC., 

Respondent 

Docket No. LAKE 80-189-M 

A.C. No. 20-00741-05004 

Holly Sand and Gravel Plant 

DECISION 

Appearances: Gerald A. Hudson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Detroit, Michigan, for Petitioner; 

Robert J. Krupka, Esq., Cook, Nash & Deibel, Saginaw, 

Michigan, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

1be above cases were commenced by the filing of petitions for the assessment of civil penalties for alleged violations of mandatory safety standards 

promulgated pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801. Three violations were alleged in Docket No. LAKE 80-173-M; 

four were alleged in Docket No. LAKE 80-189-M, one of which was vacated prior 

to the hearing as having been issued in error. 

Pursuant to notice, the cases were called for hearing on the merits on 

August 4, 1980, in Midland, Michigan. By order issued on the date of hearing, 

the cases were consolidated for the purposes of hearing and decision, since 

they involved the same mine and the same witnesses. Robert L. Polkinghorne, 

a Federal mine inspector, testified for Petitioner; Wayne Michelson testified 

for Respondent. Both parties have filed posthearing proposed findings and 

legal briefs. To the extent that the proposed findings and contentions are 

not accepted in this decision, they are rejected. 

REGULATIONS 

30 C.F.R. § 56.14-29 provides: "Mandatory. Repairs or maintenance shall 

not be performed on machinery until the power is off and the machinery is 

3266 
blocked against motion, except where machinery motion is necessary to make 

adjustments." 

30 C.F.R. § 56.4-29 provides: "Mandatory. When welding or cutting, 

suitable precautions shall be taken to ensure that smoldering metal or sparks 

do not result in a fire. Fire extinguishing equipment shall be immediately 

available at the site." 

30 C.F.R. § 56.9-87 proyides: 

Mandatory. Heavy duty mobile equipment shall be provided 

with audible wa.rning devices. When the operator of such equipment has an obstructed view to the rear, the equipment shall 

have either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up. 

30 C.F.R. § 56.9-22 provides: "Mandatory. Berms or guards shall be provided on the outer bank of elevated roadways." 

30 C.F.R. § 56.17-1 provides: "Mandatory. Illumination sufficient to 

provide safe working conditions shall be provided in and on all surface 

structures, paths, walkways, stairways, switch panels, loading and dumping 

sites, and work areas." 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. At all times pertinent to this case, Respondent was the operator of 

a sand and gravel plant in Oakland County, Michigan, known as the Holly Sand 

and Gravel Plant. 

2. There is no direct evidence in the record as to the size of Respondent's business, either in terms of production or the number of employees. 

There is evidence that at the Holly Sand and Gravel Plant, Respondent mines, 

washes and sizes sand and gravel. It has front-end loaders, a primary wash 

plant and other secondary plants (Tr. 8). It has a conveyor and a crushed 

stone feed tunnel. It has other plants in addition to Holly (Tr. 34). From 

these facts, I can infer that it is at least a medium-sized operation. 

3. Between September 1, 1977, and August 31, 1979, there were 22 paid 

violations of mandatory safety standards at the subject mine. None involved 

30 C.F.R. § 56.14-29; none involved 30 C.F.R. § 56.4-29; one involved 

30 C.F.R. § 56.9-87; one involved 30 C.F.R. § 56.9-22, none involved 30 C.F.R. 

§ 56.17-1. I do not regard this history of prior violations to be such that 

penalties otherwise appropriate should be increased because of it. 

4. In each case involved herein, Respondent abated the alleged violations promptly and in good faith. 

5. Citation No. 298066 issued on September 13, 1979, alleged a violation of 30 C.F.R. § 56.14-29 in that an employee was welding at a discharge 

3267 
chute without blocking the chute in an open position. There is conflicting 

testimony a~ to whether the power to the shaker screen to which the discharge 

chute was attached was on or off. Since the citation did not allege that the 

power had not been turned off, it is unnecessary to resolve the conflict. Was 

the chute blocked against motion before repairs were begun? The chute was 

hinged at the bottom and resting on a handrail at an angle of about 35 degrees 

which blocked it from falling "downward." It could fall "backward" only if 

someone deliberately lifted it (it weighs approximately 300 pounds) and tipped 

it toward the closed position. It could not have occurred accidentally. In 

view of the facts, I conclude that the standard does not apply to the situation described in the citation. The citation will be vacated. 

6. Citation No. 298067 issued on September 13, 1979, alleged a violation 

of 30 C.F.R. § 56.4-29 in that employees were welding and cutting without a 

fire extinguisher at the site. The employees were welding and cutting on a 

platform at the discharge chute. The nearest fire extinguisher was on a maintenance truck about 50 feet away down a ladder and around or under a conveyor. 

The standard requires a fire extinguisher to be "immediately available at the 

site." Respondent argues that this standard is "vague and ambiguous, since it 

is subject to various interpretation." A work site may, of cours.e, vary in 

its dimensions, but safety standards can hardly be expected to be so tightly 

drawn that an inspector (or an operator) would not have to use judgment in 

their application. The term "working site" is not vague, nor is the term 

"immediately available." The facts are clear here: A fire extinguisher 

which is on a truck on a level below the area of work which could be reached 

by going down a ladder, traveling 30 or more feet around or under a conveyor, 

is not "immediately available." The citation described a violation. It is 

moderately serious, and was the result of Respondent's negligence. 

7. Citation No. 298068 alleges a violation of 30 C.F.R. § 56.14-29 in 

that an employee was performing maintenance in a chute above a conveyor belt 

without turning off the power to the belt. The inspector believed that the 

employee might fall through the opening at the bottom of the chute on to the 

running belt. The evidence establishes, and I find, that it would not have 

been physically possible for the employee to fall through the opening which 

measured 12 inches by 14 inches. The evidence does not establish a violation 

and the citation will be vacated. 

8. Citation No. 298065 charges a violation of 30 C.F.R. § 56.9-87 in 

that a front-end loader did not have an audible backup alarm. The evidence 

establishes that the operator of the front-end loader in question had an 

obstructed view to the rear. The loader had a bell-type alarm on its wheel. 

The inspector stated it was not audible above the surrounding noise when the 

loader was in operation. He was standing approximately 30 feet from the 

machine as it backed up, and could not hear the alarm. Mr. Michelson stated 

that he could hear the alarm. I accept the testimony of the inspector and 

find that the backup alarm was not audible above the surrounding noise and 

therefore a violation of the standard was established. The violation was 

moderately serious. Petitioner did not establish that it resulted from 

negligence. 

3268 
9. Citation No. 298073 charges a violation of 30 C.F.R. § 56.9-22 in 

that a guard or berm was not provided on an elevated roadway in the pit area 

on September 13, 1979. The evidence establishes that the area in question 

was not a roadway but an area being mined out. It was not a place of 

vehicular travel and the standard cited does not apply. The citation will 

be vacated. 

10. Citation No. 298089 charges a violation of 30 C.F.R. § 56.17-1 in 

that the crushed stone feed tunnel did not have sufficient light to work 

safely. The tunnel housed a conveyor belt and employees enter it periodically to perform cleanup work. There is a dispute between Inspector 

Polkinghorne and Mr. Michelson as to the amount of light and the difficulty 

in seeing. There were one or two light bulbs in the tunnel. I reject 

Respondent's argument that the standard is impermissibly vague. I reject 

its contention that a measuring device or a scientific test is required to 

establish insufficient illumination. Respondent cited Freeport Kaolin 

Company, 1 FMSHRC 2343 (1980), and Kaiser Steel Corporation, 1 FMSHRC 2367 

(1980), but failed to cite Secretary of Labor v. Clinchfield Coal Company, 

Docket No. NORT 78-417-P issued March 12, 1979, review denied by the Commission in April 1979, affirmed sub nom. Clinchfield Coal Company v. 

Secretary of Labor, unpublished opinion issued April 8, 1980 (4th Cir.). 

The Court of Appeals upheld a finding of insufficient illumination based 

upon the "informed judgment [of the inspector] of what constituted sufficient illumination." In this case, I rely on the judgment· of the inspector that the illumination in the tunnel was not sufficient to provide safe 

working conditions. A violation was established. It was not serious, but 

was the result of Respondent's negligence. 

ADDITIONAL CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of these proceedings. 

2. Respondent is subject to the provisions of the Mine Safety and 

Health Act of 1977 in its operation of the Holly Sand and Gravel Plant. 

3. Based upon the evidence introduced at the hearing, the contentions 

of the parties, and a consideration of the criteria in section llO(i) of the 

Act, I determine that the following penalties are appropriate for the violations found to have occurred: 

Citation No. 30 C.F.R. Standard Penalty 

298067 56.4-29 $100 

298065 56.9-87 100 

298089 56.17-1 50 

ORDER 

Therefore, IT IS ORDERED (1) Citation Nos. 298066, 298068, and 298073 

are VACATED and no penalty is imposed. IT IS FURTHER ORDERED that Respondent 

3269 
shall, within 30 days of the date of this decision, pay $250 for the violations found he~ein to have occurred. 

James 

~~4~ A. Broderick 

' Chief Administrative Law Judge 

Distribution: 

Robert J. Krupka, Esq., Attorney for J. P. Burroughs & Sons, Inc., Cook, 

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

B3,4 Gerald A. Hudson, Esq., Attorney, Office af the Solicitor, U.S. Department of Labor, 231 West Lafayette Street, Room 657, Detroit MI .48226 

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

Arlington, VA 22203 

3270 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 13, 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-48-M 

Petitioner A.C. No. 20-2370-5002 

v. 

Middlemiss Pit 

CASH & CARRY GRAVEL, INC., 

Respondent 

Appearances: 

Before: 

ORDER DENYING MOTION 

TO APPROVE SETTLEMENT; 

DECISION 

Allen H. Bean, Esq., Office of the Solicitor, U.S. Department of Labor, Detroit, Michigan, for Petitioner; 

John L. Cote', Esq., and Richard G. Swaney, Swaney and 

Thomas, Holland, Michigan, for Respondent. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This proceeding was commenced by the filing of a petition for the 

assessment of civil penalties for six alleged violations of mandatory safety 

standards promulgated pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801. Pursuant to notice, the matter was heard on the merits 

in Holland, Michigan on August 12, 1980. Thomas Wasley, a federal mine inspector, testified on behalf of Petitioner; Cornelius Brewer, president of Respondent, testified on behalf of Respondent. Counsel made closing statements on 

the record and were given the opportunity to submit written proposed findings 

of fact and conclusions of law. On October 21, 1980, the parties filed a 

motion to approve a settlement. 

MOTION TO APPROVE SETTLEMENT 

The parties have proposed to settle the six violations, originally 

assessed at $773 for a payment of $580. I have reviewed the motion and the 

evidence received at the hearing and conclude that the proposed settlement 

does not effectuate the purposes of the Act. Therefore the motion is DENIED. 

3271 
AFFECTING COMMERCE 

Respondent argues that it is not subject to the Act because it sells its 

product, sand and gravel, entirely within the state of Michigan. The Mine 

Safety Act applies to mines "the products of which enter commerce, or the 

operations or products of which affect commerce." 80 U.S.C. § 803. By this 

language, taken from the Coal Mine Safety Act of 1969, Congress intended to 

exercise its full authority under the Commerce Clause. The evidence establishes that Respondent produces and sells sand and gravel on the open market. 

Among its customers are a concrete manufacturer and the County Road Commission. 

These facts bring its operation under the Act. See the discussion of this 

issue in Secretary of Labor v. Capitol Aggregates, Docket No. DENV 79-163-PM, 

2 FMSHRC 2373 (1980), decision by Judge Moore; and Secretary of Labor v. 

New York Department of Transportation, Docket No. YORK 79-21-M, Order Denying 

Motion to Dismiss by Judge Laurenson, March 21, 1980, and the cases cited in 

these decisions. 

WARRANTLESS INSPECTION 

The inspection which. resulted in the citations at issue was made without 

a warrant, and over Respondent's protest. The Act requires inspections and 

directs that they be made without advance notice. The legislative history 

of the Act makes it clear that it is intended that the Secretary has the right 

to inspect without a warrant. S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 

(1977), reprinted in Legislative History of the Federal Mine Safety and Health 

Act of 1977 (1978). The right to conduct warrantless inspections under the Act 

has been upheld in Marshall v. Nolichuckey Sand & Gravel Co., Inc., 606 F.2d 

693 (6th Cir. 1979); Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980); and 

Marshall v. Stoudt's Ferry PreparatiOU Co., 602 F.2d 589 (3rd Cir. 1979). 

STATUTORY CRITERIA COMMON TO ALL CITATIONS 

Respondent is a ~ery small operator, employing two people. There is no 

evidence that penalties assessed herein will affect its ability to continue 

in business, but I note and will consider the testimony of Respondent's 

president that the operation loses money. In the 24 months immediately preceding the citations at issue seven violations were charged and paid. This 

history is not such that penalties otherwise appropriate should be increased 

because of it. The evidence establishes that each citation was abated in 

good faith. 

FINDINGS OF FACT 

The Electrical Violations 

1. On July 18, 1979, wires leading to the water pump did not enter an 

electrical box but were covered with tape. 

. 2. Although the pump was not operating at the time, the line was 

energized. 

3272 
3. The area was very wet. 

4. The pump was being repaired at the time and the wires were taped 

by an electrician. 

5. Respondent knew or should have known of the hazard created by the 

conditions described in Findings 1 through 3. 

6. The hazard created by the conditions described in Findings 1 through 

3 was very serious in that an employee who contacted the wires could have 

received an electrical shock. 

7. On July 18, 1979, a cover was missing from an electrical box in the 

shop area of the subject mine. Energized wires were leading from the box to 

the water pump. 

8. The pump was not in operation at the time the citation was issued. 

The pump was being repaired. 

9. Respondent knew or should have known of the absence of the cover. 

10. The condition described in Finding 8 was moderately serious in that 

wires inside the box were exposed and an emplo~ee contacting them could have 

received an electrical shock. 

11. On July 18, 1979, the audible reverse alarm on the Trojan frontend loader was not operating when observed by the inspector. 

12. The alarm was present, but because the switch was not pulled out, 

it did not operate. 

13. The condition described in Finding 11 was not serious and not the 

result of Respondent's negligence. 

14. On July 18, 1979, the cab window on the Trojan front-end loader 

was cracked in several places. 

15. The condition described in Finding 14 impaired the visibility of 

the operator of the loader. 

16. The condition described in Finding 14 was moderately serious. 

17. The condition described in Finding 14 was known or should have been 

known by Respondent. 

18. On July 18, 1979, a guard was not provided at the head pulley 

along an elevated walkway at the stone conveyor. 

19. A pinch point existed which could have injured an employee who 

contacted the pulley. 

3273 
20. The condition described in Finding 18 was moderately serious. It 

was located in an.area where employees seldom went when the machinery was 

in operation. 

21. Respondent knew or should have known of the condition described 

in Finding 18. 

22. On July 18, 1979, Respondent failed to have a copy of the last 

quarterly report available at the mine site. 

23. Respondent did not keep the reports at the mine site because of 

frequent break-ins at the site. 

24. The condition des.cribed in Finding 22 was not serious. It did 

not result from Respondent's negligence. 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal Mine Safety 

and Health Act of 1979 in the operation of the Middlemiss Pit. 

2. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of this proceeding. 

3. The condition described in Finding 1 constituted a violation of the 

mandatory safety standard contained in 30 C.F.R. § 56.12-30. The violation 

was very serious and resulted from Respondent's negligence. I will assess 

a penalty of $250 for this violation. 

4. The condition described in Finding 7 constituted a violation of 

30 C.F.R. § 56.12-32. The violation was moderately serious and resulted 

from Respondent's negligence. I will assess a penalty of $200 for this 

violation. 

5. The condition described in Finding 11 constituted a violation of the 

mandatory safety standard contained in 30 C.F.R. § 56.9-2. The violation was 

not serious and did not result from Respondent's negligence. I will assess a 

penalty of $75 for this violation. 

6. The condition described in Finding 14 constituted a violation of 

30 C.F.R § 56.9-11. The violation was moderately serious and resulted 

from Respondent's negligence. I will assess a penalty of $125 for this 

violation. 

7. The condition described in Finding 18 constituted a violation of 

30 C.F.R. § 56.14-1. The violation was moderately serious and resulted from 

Respondent's negligence. I will assess a penalty of $iOO for this violation. 

8. The condition described in Finding 22 constituted a violation of 

30 C.F.R. § 50.30. The violation was not serious and did not result from 

Respondent's negligence. I will assess a penalty of $50 for this violation. 

3274 
ORDER 

Respondent is ORDERED to pay within 30 days from the date of this decision 

the following penalties for violations of mandatory safety standards. 

Citation 30 C. F·. R. Standard Penalty 

295698 56.12-30 $ 250 

295699 56.12-32 200 

295700 56.9-2 75 

295701 56. 9-11 125 

295702 56.14-1 100 

295703 50.30 50 

Total: $ 800 

/1 c_:J/IAk£5> kl3 t'1? J~ ~(_ ,,,! . James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

Allen H. Bean, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 231 W. Lafayette, Rm 657, Detroit, MI 48226 (Certified Mail) 

John L. Cote', Attorney at Law, 30 East Ninth St., Holland, MI 49423 

(Certified Mail) 

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

3275 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~703) 756-6230 

JIM WALTERS RESOURCES, INC., Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

JIM WALTERS RESOURCES, 

. Contestant 

Respondent 

Petitioner 

Respondent 

Docket No. SE 80-43-R 

No. 3 Mine 

Civil Penalty Proceeding 

Docket No. SE 80-141 

A.C. No. Ol-00758-03058F 

No. 3 Mine 

DECISION 

NOV 1 4 1980 

Appearances: Robert W. Pollard, Esq., Birmingham, Alabama, for Jim Walters 

Resources, Inc. ; 

Before: 

Murray A. Battles, Esq., Birmingham, Alabama, for Secretary 

of Labor. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This action was commenced on December 26, 1979, when Jim Walters 

Resources, Inc., (hereinafter Jim Walters) filed a notice of contest of a 

citation issued on November 23, 1979, under section 104(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a) (hereinarter-the 

Act). Upon completion of prehearing requirements, the.contest of citation 

was heard in Birmingham, Alabama, on July 22, 1980. H. E. Melhorn and 

William Pitts testified on behalf of the Secretary of Labor, Mine Safety 

and Health Administration (hereinafter MSHA). Frederick Carr, Jesse E. 

Cooley, and Thomas H. Coleman testified on behalf of Jim Walters. Both 

parties submitted posthearing briefs. On October 10, 1980, MSHA filed a 

proposal for assessment of a civil penalty based on the citation which is 

here contested by Jim Walters. Because the two cases involve similar 

issues of law and fact, pursuant to 29 C.F.R. § 2700.12, I order the cases 

consolidated. 

3276 
ISSUE 

The issue in this case is whether the citation for violation of 30 C.F.R. 

§ 75.200 was properly issued. 

APPLICABLE LAW 

Section 104(a) of tpe Act, 30 U.S.C. § 814(a), provides in pertinent 

part as follows: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of 

a coal or other mine subject to this Act has violated this 

Act, or any mandatory health or safety standard, rule, order, 

or regulation promulgated pursuant to this Act, he shall, 

with reasonable promptness, issue a citation to the O?erator. 

Each citation shall be in writing and shall describe with 

particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, 

or order alleged to have been violated. In addition, the 

citation shall fix a reasonable time for the abatement of the 

violation. The requirement for the issuance of a citation 

with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act. 

30 C.F.R. § 75.200 provides: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system of each 

coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of 

the roof or ribs. A roof control plan and revisions thereof 

suitable to the roof conditions and mining system of each 

coal mine and approved by the Secretary shall be adopted and 

set out in printed form on or before May 29, 1970. The plan 

shall show the type of support and spacing approved by the 

Secretary. Such plan shall be reviewed periodically, at least 

every 6 months by the Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of support of roof or ribs. 

No person shall proceed beyond the last permanent support unless 

adequate temporary support is provided or unless such temporary 

support is not required under the approved roof control plan and 

the absence of such support will not pose a hazard to the miners. 

A copy of the plan shall be furnished to the Secretary or his 

authorized representative and shall be available to the miners 

and their representatives. 

3277 
STIPULATIONS 

The parties stipulated the following: 

1. Jim Walters is the owner and operator of the 

No. 3 mine in question. 

2. The No. 3 mine is subject to the Federal Mine Safety 

and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction of 

this proceeding, pursuant to Section 105 of the Act. 

4. The Citation in question and the Termination were 

properly served on Jim Walters by a duly authorized rep-. 

resentative of the Secretary and will be admitted into 

evidence as authentic. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. The No. 3 Mine is owned and operated by Jim Walters. 

2. Inspector H. E. Melhorn, who issued the subject citation, was a 

duly authorized representative of the Secretary of Labor. 

3. On November 21, 1979, a fatal roof fall accident occurred at the 

No. 3 Mine in the face area of No. 3 entry, No. 6 section. 

4. At the time of the accident, the crew had cut approximately 

19 feet inby the last permanent support. In order to extend the line 

curtain, one temporary support had been set approximately 5 feet inby the 

last permanent support and approximately 5 feet from the nearest rib. 

5. The victim was attempting to set a second temporary support. He 

walked on the wide side of the first temporary support (that is, not between 

the temporary support and the nearest rib) about 5 feet inby the first 

temporary support. At all times he was within 5 feet of the first temporary 

support. 

6. As he was attempting to set the second temporary support, the victim 

was struck and killed by a rock which fell from the roof. 

7. Paragraphs 4 and 5 of the Jim Walters roof control plan provide: 

4. When testing roof or installing supports in the face 

area, the workmen shall be within 5 feet of a temporary or 

permanent support. 

3273 
5. Where it is necessary to perform work such as 

extend line curtains or ventilating devices inby the roof 

bolts or to make methane tests inby the roof bolts, a 

minimlllll of two temporary supports shall be installed. 

This minimum is applicable if they are within 5 feet of 

the face or rib and the work is done between such supports 

and the nearest face or rib. 

8. MSHA investigated the accident and on November 23, 1980, Inspector 

H. E. Melhorn issued Citation No. 237745 which stated: 

A fatal roof fall accident occurred in No. 6 Section 

at the face of No. 3 Entry and based on evidence and 

testimony the victim traveled from permanent roof support 

to a point of approximately 10 feet inby under unsupported 

roof. The approved roof control plan requires that no 

person advance beyond permanent roof support unless they 

travel between the rib and temporary supports. 

DISCUSSION 

The issue in this case is whether these facts establish a violation 

of Jim Walters roof control plan. A violation of the approved roof control 

plan is a violation of the mandatory standard contained in 30 C.F.R. § 75.200. 

See Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). At hearing, MSHA conceded that because the victim was always within 5 feet of the 

first temporary support, paragraph 4 of the roof control plan was not violated. MSHA contends that paragraph 5 of the plan required that the miner 

travel between the first temporary support and the nearest rib when walking 

inby permanent support to set a second temporary support in order to extend 

the line curtain. MSHA further contends that this part of the plan was vio1 ated by the actions of the victim preceding the accident. Jim Walters 

contends that miners are not required to travel ·between the rib and temporary 

support when setting other temporary support; they are only required to stay 

within 5 feet of permanent or temporary support. Jim Walters therefore 

asserts that because the· victim stayed within 5 feet of the first temporary 

support, the roof control plan was not violated. 

The specific issue in this case then is whether paragraph 5 of the roof 

control plan requires miners to travel between temporary support and the 

nearest rib when setting other temporary support in order to extend the 

line curtain. I find that it does not. 

Paragraph 5 of the roof control plan is not clearly drafted. It 

requires that when such work as extending line curtains or taking methane 

tests inby permanent support is being done, certain precautions have to be 

taken. These precautions are that at least two temporary supports must be 

set; the temporary supports must be within 5 feet of the face or rib; and 

the work must be done between the nearest face or rib and the temporary 

supports. Paragraph 5 of the plan does not prescribe how temporary supports 

3279 
should be installed. Paragraph 4 of the plan explicitly states what precautions should be taken when roof supports are to be installed. That paragraph 

requires that when roof supports are being installed, the miner must stay 

within 5 feet of other temporary or permanent support. °That is what was done 

here. I find that paragraph 4, not paragraph 5 describes what precautions 

must be taken when roof supports are being installed and in this case, those 

precautions were taken. 

I am mindful that this case involves very unfortunate circumstances 

and that the primary purpose of the Act is to insure the health and safety 

of miners. Nevertheless., an operator is entitled to know what is required 

of it and what conduct constitutes a violation. Here, I have found that 

the plain wording of the roof control plan did not proscribe the conduct 

cited. The operator's employees testified that they never interpreted the 

plan to require what MSHA asserted it required. The MSHA inspector testified that he had previously seen miners travel on the wide side of temporary 

supports to set other temporary supports and had not cited the operator nor 

warned the operator that the conduct was in violation of .the plan. MSHA 

in approving Jim Walters plan had the opportunity to require in plain 

language what it is attempting to require here and it may require it in 

the future, but it has not done so. I find that the facts of this case 

do not establish a violation of Jim Walters roof control plan. Therefore, 

no violation of the Act or mandatory standard has been proven. 

CONCLUSIONS OF LAW 

1. This Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 105 of the Act. 

2. The evidence of record fails to establish a violation of the approved 

roof control plan pursuant to 30 C.F.R. § 75.200. 

3. On November 23, 1980, Citation No. 237745 was improperly issued 

under section 104(a) of the Act; Citation No. 237745 is vacated; and Jim 

Walters' contest of citation is granted. 

4. Because Citation No. 237745 was improperly issued, the proposal 

for a civil penalty based on the citation is dismissed. 

ORDER 

WHEREFORE IT IS ORDERED that the contest of Citatio·n No. 237745 is 

,RANTED and said citation is VACATED. 

IT IS FURTHER ORDERED that the proposal for a civil penalty based on 

Citation No. 237745 is DISMISSED. 

James A. Laurenson, Judge 

,I) 

3280 
Issued: 

Distribution by Certified Mail: 

Robert W. Pollard, Staff Attorney, Jim Walter Resources, Inc., P.O. 

Box C-79, Birmingham, AL 35283 

H. Gerald Reynolds, Jim Walter Corporation, 1500 North Dale Mabry 

Highway, Tampa, FL 33607 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 9th Avenue, South, Birmingham, AL 35205 

32-81 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 4 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-291-PM 

Petitioner A/O No. 41-01643-05001 

v. 

Docket No. DENV 79-439-PM 

A/O No. 41-01643-05002 F 

LONE STAR STEEL COMPANY, 

Appearances: 

Before: 

Respondent Benefication Plant 

DECISION 

Richard L. Collier, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

Steve Wakefield, Esq., Donald Dowd, Esq., Dallas, Texas, 

for Respondent. 

Judge Stewart 

These are civil penalty proceedings brought pursuant to section llO(a) 1/ 

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

Petitioner timely filed petitions for assessment of civil penalty in these 

cases with the Mine Safety and Health Review Commission and Respondent timely 

filed its answers to these petitions. The h~aring in these matters was held 

in Dallas, Texas. A brief and proposed findings of fact and conclusions of 

law were submitted by Respondent. 

1he primary issues are (1) whether the mine owner, Lone Star Steel Company, 

should be cited for violations of the Mine Safety and Health Act committed by 

its contractor, H. B. Zachry Company, (2) whether there was a violation of 

mandatory safety or health standards, and (3) the amount of the civil penalty 

that should be assessed for the violations. 

The following stipulations between the parties which were accepted at 

the hearing are entered as findings: 

.!/ Section llO(a) of the Act reads as follows: 

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

mandatory health or safety standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. Each occurrence of 

a violation of a mandatory health or safety standard may constitute a separate offense." 

3282 
The Lone Star Steel Company is engaged in interstate commerce. 

The employee, Tracy Alan Monkhouse, fell and was killed April 26, 1978. 

He was not tied off as alleged. 

The H. B. Zachry Company, reported the death some 23 hours later on 

April 27, 1978. 

The size of the company, based on the manhours worked for 1978, is 

255,573 hours. 

This would indicate that Lone Star is a medium-sized mining operation. 

The penalty will not affect continuation in the business. 

There is no prior history of violations under this Act. 

Respondent showed good faith in abating the alleged violations. 

On April 26, 1978, at approximately 11:05 a.m., Tracy Alan Monkhouse 

fell from atop a 56-foot column to his death. At the time of his death, 

Mr. Monkhouse was employed by H. B. Zachry Company (Zachry). His job was 

to climb to the top of steel columns and connect cross-members. A column 

that Monkhouse had climbed tilted, causing him to fall or jump from the 

column. 

Zachry, a large construction contractor, had entered into a contract 

with Lone Star Steel Company (Lone Star) to build part of a new sintering 

(benefication) plant for Lone Star at Lone Star's iron ore mining and 

processing facility near Lone Star, Texas. The iron ore facility is 

located approximately 3 miles northeast of Lone Star's main steel plant. 

The sintering plant is that part of the steelmaking operation in which 

raw iron ore is upgraded and prepared for melting in the blast furnace. 

The benefication plant project was a major one, calling for a total 

expenditure of over 20 million dollars. Zachry was to remove two existing 

kilns, and erect and install a refurbished sintering machine at an estimated 

cost to Lone Star of over 2 million dollars. As many as 158 employees 

worked at a time and it took approximately 11 months to complete that part 

of the project. 

According to Lone Star's project engineer and the contract itself, 

Zachry exercised control over the details of work. Zachry also assumed 

responsibility for the safety of its employees. 2/ In a meeting with the 

company safety director prior to the beginning of construction, Zachry 

]:_/ The contract between Zachry and Lone Star called for Zachry to comply 

with the Occupational Safety and Health Act of 1970, as well as all Federal 

and State environmental statutes and all regulations issued pursuant to such 

statutes. No explicit requirement was contained in the contract to the 

effect that Zachry was responsible for compliance with the Act and the 

regulations issued pursuant thereto. 

3283 
officials stated that they were familiar with MSHA regulations. At the 

hearing, Zachry'~ project safety engineer stated that it was his understanding that Zachry was to be totally responsible for compliance with 

MSHA regulations. The attempt was made to isolate the job and make it off 

limits to Lone Star employees. The construction area was roped off and 

signs were posted indicating construction was in progress and warning Lone 

Star employees to keep out. There were at least two incidents where Lone 

Star employees, one of whom was the plant superintendent, were warned that 

the area was off limits to Lone Star personnel. 

When the accident occurred, Mr. Monkhouse was wearing a safety belt. 

When he climbed to the top of the column, however, he did not tie-off with 

the belt. Testimony indicated that it was not common practice in the trade 

for "connectors" to tie-off and, depending upon the operation to be performed, connectors may have difficulty tying-off. Testimony also indicated 

that the deceased may have precipitated the tipping of the beam by rocking 

it and that Mr. Monkhouse may have attempted to jump from the column he was 

was straddling to a nearby column. 

Zachry reported the death to MSHA some 23 hours later. After an MSHA 

investigation, Lone Star was cited for violations of 30 C.F.R. § 50.10 

which calls for "immediate" reporting of all fatal accidents and 30 C.F.R. 

§ 55.55-5 which requires tying-off when working in high places. MSHA 

inspector Julian Kennedy testified that Lone Star was cited because it was 

MSHA policy to cite the mine owner instead of the independent contractor 

at that time. 

Lone Star's good faith and lack of a prior history of violations were 

stipulated. It was also stipulated that Lone Star's mining operation was 

in the medium-size range. The inspector's report with regard to Citation 

No. 00154817 (failure to tie-off) ·states that the condition resulting in 

the fatality could not have been known or predicted by Lone Star. 

The MSHA inspector's statement with respect to Citation No. 00154816 

(late reporting) notes that this was a technical violation only. 

Liability of Operator for Act of Independent Contractor 

Lone Star contends that the Act requires that the contractor be cited 

in circumstances such as those that exist in this case and asserts that even 

if a citation of contractors is within the discretion of the Secretary of 

Labor, the Secretary has clearly abused his discretion in this case by continuing to blindly follow a policy of administrative convenience. 

Although the Federal Mine Safety and Health Amendments Act of 1977 

(Pub. L. 95-164, 30 U.S.C. § 801 et seq.) amended the definitions of 

"operator" to include an "independent contractor," conditions under which 

the independent contractor rather than the owner-operator should be 

cited were not prescribed. The Act still imposes strict liability on the 

owner-operator for violations and Lone Star has not been relieved of its 

liability by contracts and understandings with Zachry. 

3284 
The Federal Mine Safety and Health Review Commission has recently ruled 

on this question in two cases, Secretary of Labor, Mine Safety and Health 

Review Commission v. Old Ben Coal Co. (MSHRC Docket No. VINC 79-119) (now 

pending before the Circuit Court of Appeals of the District of Columbia, 

Docket No. 79-2367), and Monterey Coal Company v. Secretary of Labor, Mine 

Safety and Health Administration and United Mine Workers (MSHA Docket Nos. 

HOPE 78-469 through HOPE 78-476), (now on appeal to the Fourth Circuit Court 

of Appeals). In Old Ben, the Commission held that the Secretary of Labor 

retained the discretion under the Act to cite the mine owner even though 

the 1977 Amendments amended the definition of "operator" to include "any 

independent contractor performing services or construction" at a mine. In 

Monterey Coal, the Commission, citing Old Ben, reversed an administrative 

law judge's decision in which he had held the owner not liable. 

Lone Star also contends that the purposes of the Act can best be served 

by citing the party best able to protect the health and safety of the miner. 

While Zachry might have been in violation of the two cited regulations and 

may have also been negligent, these issues have not been litigated by the 

independent contractor at a hearing. The Act imposes liability on Lone 

Star and none of its provisions required the inspector to cite Zachry rather 

than Lone Star for violations. Although the inspect-0r's report with respect 

to Citation No. 00154817 (failure to tie-off) states that the condition 

resulting in the fatality could not have been known or predicted by Lone 

Star, there is no requirement under the Act that Respondent ~ust be negligent in order to be liable. Negligence is one of the statutory criteria 

to be considered in determining the amount of civil penalty that should be 

assessed, but it is not a condition for finding Respondent liable. ]_/ 

Citation No. 00154817 

In citing a violation of 30 C.F.R. § 55.15-5 on April 28, 1978, the 

inspector stated on the citation form issued to Respondent that some 

H. B. Zachry employees (connectors) were not "tying-off" with the safety 

belts provided while working at the top of free landing columns. 30 C.F.R. 

§ 55.15-5 provides: "MaIJ.datory. Safety belts and lines shall be worn when 

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

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

3/ Section llO(i) of the Act provides: 

"The Commission shall have authority to assess all civil penalties provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, , 

whether the operator was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve rapid compliance 

after notification of a violation. In proposing civil penalties under this 

Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning 

the above factors." 

3285 
The record establishes the occurrence of a violation of 30 C.F.R. § 

55.15-5 as alleged. Mr. Monkhouse wore a safety belt but failed to attach 

a line as required by the mandatory standard. Testimony was offered to the 

effect that it was not the common practice for connectors to tie-off. The 

plain language of the standard, however, requires that they do so. 

It is probable that this violation would result in serious injury or 

death to the person failing to tie-off and it did in fact contribute to 

the death of Mr. Monkhouse. It would normally be expected that one person 

would be affected by his failure to tie-off. 

Negligence on the part of Respondent has not been established; it was 

not shown that Respondent knew or should have known of the failure of 

Mr. Monkhouse to tie-off as required. Clearly, it was not established that 

Respondent had actual knowledge of the failure to tie-off. The area was off 

limits to Respondent's personnel, Respondent's management had no supervisory 

authority over Zachry personnel, and Zachry had assumed responsibility for 

the safety of its own employees. The record will not, therefore, support a 

finding that Respondent had constructive knowledge of the failure of 

Mr. Monkhouse to tie-off. 

The findings with respect to the remaining statutory criteria are as 

follows: the operator has no history of previous violations; Respondent 

is a medium-sized mining operation; the civil penalty assessed will not 

affect the operator's ability to continue in business; and Respondent 

demonstrated good faith in attempting to achieve rapid compliance after 

notification of the violation. 

In view of the above, Respondent is assessed a civil penalty of $500 

for this violation. 

Citation No. 00154816 

In citing a violation of 30 C.F.R. § 50.10 on April 28, 1978, the 

inspector stated on the citation forms issued to Respondent that: Tracy 

Allan Monkhouse, an employee of the H. B. Zachry Company died at approximately 11:05 a.m., April 26, 1978, from injuries suffered in an industrial 

accident which occurred at that time. The MSHA subdistrict office was 

notified at 11 a.m., May 27, 1978. The H. B. Zachry Company was engaged 

in plant construction work for the Lone Star Steel Company at this plant. 

Telephone communication between MSHA and the mine site was available at 

the time of this accident. 30 C.F.R. § 50.10 provides: 

Immediate ~otification. If an accident occurs, an 

operator shall immediately contact the MSHA District or 

Subdistrict Office having jurisdiction over its mine. If an 

operator cannot contact the appropriate MSHA District or 

Subdistrict Office it shall immediately contact the MSHA 

Headquarters Office in Washington, D.C., by telephone, toll 

free at (202) 783-5582. 

3286 
This is only a technical violation as acknowledged by the inspector in 

his statement and the record does not establish negligence on the part of 

Lone Star for the 1-day delay by Zachry in reporting the accident. The 

operator has no history of previous violations. Respondent is a mediumsized mining operation. The civil penalty assessed will not affect the 

operator's ability to continue in business. Respondent demonstrated good 

faith in attempting to achieve rapid compliance after notification of the 

violation. 

The petition for assessment of civil penalty also alleged a violation 

of 30 C.F.R. § 55.12-18. On this citation, the inspector stated: "There 

were several electrical disconnect switches that were not labeled to show 

what units they control, located in the Ore lab building." At the outset 

of the hearing, Petitioner announced that it would not have any evidence 

to offer on that matter. The proceeding in regard to that citation is 

accordingly dismissed. 

The Federal Mine Safety and Health Review Commission, on August 4, 1980, 

issued its decision in Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Pittsburgh & Midway Coal Mining Company (P&M). That case was 

remanded to the judge to allow Petitioner an additional opportunity to elect 

the parties against which it desired to proceed. 

In view of the Commission's decision, an order was issued affording the 

Secretary of Labor an opportunity determine whether to continue to prosecute 

the citations against Lone Star, or the independent contractor which was 

claimed to have violated the standards cited, or both. 

The Secretary complied with that order by filing a response stating that 

"since this matter has already been tried and submitted we choose to proceed 

against Lone Star only • 11 

Proposed findings of fact and conclusions of law consistent with this 

decision are rejected. 

In consideration of the findings of fact and conclusions of law contained in this decision, an assessment of $550 is appropriate under the 

criteria of section 110 of the Act. 

ORDER 

Respondent is ORDERED to pay Petitioner the stnn of $550 within 30 days 

of the date of this order. 

Forrest E. Stewart 

Administrative Law Judge 

3287 
Distribution: 

Richard L. Collier, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Steve Wakefield, Es·q., Donald w. Dowd, Esq., P.O. Box 35888, Dallas, 

TX 75235 (Certified Mail) 

3288 
FEDERAL· MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 8020~ 

SECRETARY OF LABOR, MINE SAFETY AND· 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UNION ROCK & MATERIALS CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~.......-~~~~~~ 

Appearances: 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

NOV 1 4 HHtf} 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-93-M 

A/O NO. 02-00711-05004 

MINE: MESA PLANT AND PIT 

Alan Raznick, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, Room 11071 Federal Building, 

450 Golden Gate Avenue, San Francisco, California 94102 

for Petitioner, 

Gary Houston, Esq., Union Rock & Materials Corporation, 1000 Kiewit Plaza, 

Omaha, Nebraska 68131 

for Respondent. 

Before: Judge John J. Morris 

DECISION 

In this civil penalty proceeding, the Secretary of Labor, on behalf of the 

Federal Mine Safety and Health Administration (MSHA), charges that Union Rock 

and Materials Corporation violated safety regulations issued 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 Phoenix, Arizona on 

April 1, 1980. 

The parties filed post trial briefs. 

ISSUES 

The issues are whether Union Rock violated the safety regulations. 

3289 
CITATION 379463 

This citation alleges a violation of 30 CFR 56.11-12.1 

The facts are uncontroverted. 

1. There was a three foot wide opening under a classifier along a walkway 

(Tr. 10, 28, R 1, R 2). 

2. A person could fall through the opening into the screw type flow (Tr. 

10). 

3. The opening was at the right side of a travelway (Tr. 10-11). 

Union Rock argues that it complied with the standard in providing a 

handrail and that it was not necessary.to provide a midrail. Further, Union 

Rock contends this was sufficient protection in view of the infrequent use of 

the walkway. 

Union Rock's arguments are rejected. There existed an unguarded opening 

beneath the railing and workers should have been further protected. A midrail 

should have been provided. 

Mere infrequent use does not constitute a defense since such a defense 

concedes exposure of Union Rock's employees to the hazard. 

The citation should be affirmed. 

CITATION 3 79465 

This citation alleges a violation of 30 C.F.R. 56.17-1. 2 

The facts are conflicting. I find the following facts to be credible. 

1. There were five electric lights in Union Rock's fifty foot long tunnel 

(Tr. 32, 33, 40, R 3). 

2. There was a broken light bulb close to the open end of the tunnel 

(Tr. 33, R 3, R 4). 

3. The broken bulb did not affect the illumination in the tunnel area (Tr. 

33). 

1/ 56.11-12 Mandatory. Openings above, below, or near travelways through 

which men or materials may fall shall be protected by railings, barriers, or 

covers. Where it is impractical to install such protective devices, 

adequate warning signals shall be installed. 

2/ 56.17 Illumination. Mandatory. Illumination sufficient .to provide safe 

working conditions shall be provided in and on all surface structures, paths, 

walkways, stairways, switch panels, loading and dumping sites, and work 

areas. 

3290 
MSHA contends it presented sufficient evidence to sustain this citation. I 

agree. However, the test is whether MSHA's evidence is persuasive. I find that 

Union Rock's evidence is more credible. 

The facts presented an underlying issue of whether the photographs were 

·taken at the tunnel where the citation was issued. Union Rock's personnel 

should know its own tunnel. The photographs show four functioning lights in the 

tunnel (R 3, R 4). MSHA failed to prove there was insufficient illumination in 

the tunnel within the meaning of 30 CFR 56.17-1. Accordingly, this citation 

should be vacated. 

CITATION 379468 

This citation alleges a violation of 30 CFR 56.12-20.3 

The evidence is essentiRlly uncontroverted. 

1. The rubber mat at the motor control electrical panel was holding water 

(Tr. 19). 

2. The electrical equipment switches located at this point carried 480 

volts (Tr. 20). 

3. If the mat is dry the electrical current will not go to gr'ound (Tr 

21). 

4. If the electrical equipment developed a short the wet rubber mat, with 

water around it, would serve as a conductor (Tr. 23, 24). 

Union Rock asserts that it should prevail. It argues that the 

uncontroverted evidence shows that its witness examined the mat out of the 

presence of the inspector and he found the underneath portion to be dry. I 

disagree. The water lying on, and around the mat, is sufficient to establish 

the hazard contemplated by the regulation. 

This citation should be affirmed. 

PROPOSED CIVIL PENALTIES 

Considering the statutory critera 4 I deem the proposed civil penalties 

for Citations 379463 and 379468 to be appropriate. 

3/ 56.12-20. Mandatory. Dry wooden platforms, insulating mats, or other 

electrically nonconductive rnatorial shall be kept in place at afl switchboards and power-control switches where shock h.-:izards exist .. However, 

metal plates on which a person normally would stand and which are kept at 

the same potential as the grounded, metal, noncurrent-carrying parts of 

the power switches to be operated may be used. 

4/ 30 u.s.c. 820 (i). 

3291 
WITHDRAWAL OF CONTEST AND MOTIONS TO VACATE 

At trial Union Ro.ck moved to withdraw its notice of contest and pay the 

proposed penalties for citations 379461, 379464, and 379469 (Tr. 5). The motion 

is granted. 

MSHA moved to vacate citation 379462 and 379467 (Tr. 7). The motions are 

granted. 

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

hereby enter the following 

ORDER 

1. Citations 379461, 379463, 379464, 379468, and 379469 and the proposed 

penalties therefor are affirmed. 

2. Citations 379462, 379465, 379467 and all proposed penalties therefor 

are vacated. 

Judge 

Distribution: 

Alan Raznick, Esq., Office of Daniel W. Teehan, Regional Solicitor 

United States Department of Labor 

Room 11071 Federal Building, 450 Golden Gate Ave. 

San Francisco, California 94102 

Gary W. Houston, Esq., Union Rock and Materials Corporation 

1000 Kiewit Plaza, Omaha, Nebraska 68131 

3292 
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), 

NOV 1 4 1980 

Civil Penalty Proceedings 

Petitioner 

Docket No. YORK 80-68-M 

A.C. No. 27-00233-05001 

v. 

TACEY TRANSPORT CORPORATION, 

a.k.a. Tacey Trans. Corp. 

Docket No. YORK 80-72-M 

A.C. No. 27-00233-05002 

Respondent Tacey Pit and Plant 

DECISION 

Appearances: Frederick E. Dashiell, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Larry Trebino, Billerica, Massachusetts, for Respondent. 

Before: Judge Melick 

These consolidated cases are before me upo~ petitions for assessment of 

civil penalties under section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., the "Act." A hearing on the merits 

was held in Manchaster, New Hampshire, on September 30, 1980, following 

which I issued a bench decision. That decision which appears below with 

only nonsubstantive corrections is affirmed as my final decision at this 

time. 

The general issue in these cases is whether the Tacey 

Transport Corporation (Tacey) has violated the provisions 

of the Mine Safety Act and its implementing regulations as 

charged in the citations before me and, if so, what are the 

appropriate civil penalties that should be assessed. 

In Docket No. YORK 80-72-M, there are two citations 

both charging violations of the standard at 30 C.F.R. 

§ 56.14-1. That particular standard reads as follows: 

Gears; sprockets; chains; drive, head, tail 

and take-up pulleys; flywheels; couplings; shafts; 

saw blades; fan inlets; and similar exposed moving 

machine parts, which may be contacted by persons 

and which may cause injury to persons, shall be. 

guarded. 

3293 
Citation No. 208691 charges that the Caterpillar Model 

No. 3304 S/N 2B-7016 Diesel Power Plant, V-belt drive pulley 

and flywheel were not adequately guarded on the work platform 

side. Citation No. 208692 charges that an adequate guard was 

not provided for the flat belt drive flywheel on the Telsmith 

crusher. 

I find that the violations have been proven as charged. 

The testimony of the inspector in essential respects has 

not been contradicted and I find it to be credible. At his 

inspection on September 20, 1979, MSHA inspector Donald Fowler 

saw the flat belt drive flywheel operating without protection. 

The access ladder to the upper part of the plant passed within 

1 foot of the flywheel. It was necessary to use this ladder 

to start and stop the plant. The flywheel itself was 4 feet 

in diameter and was constructed with spokes. A person slipping 

on the ladder could receive serious injuries if his leg or arm 

passed into the flywheel spokes. There was also danger to 

employees working on the platform within 6 inches of the flywheel. At least half of the diameter of the flywheel was 

exposed at this point. 

The issue of negligence is not at all clear. While the 

inspector thought that the condition should have been known 

to the operator because it was in "plain view" the testimony 

of Mr. Trebino; President of Tacey, indicates that the equipment was already partially guarded. While I do not agree that 

those guards were sufficient I find that the operator could 

have reasonably believed that his guarding was in compliance. 

I also note that this was the first MSHA inspection of this 

operator. I have been apprised that MSHA will now, under 

todays practice, provide a one-time first inspection to point 

out potential hazards and violations to the operator without 

citing or penalizing those conditions. This operator was not 

afforded that opportunity and I have therefore considered this 

in determining the amount of penalty. 

With respect to the violation alleged in Citation 

No. 208691, again, in essential respects the inspector's 

testimony is uncontradicted. He found that the·drive 

pulley (the multi V-belt pulley from which power is transmitted to the plant) was exposed to people traveling across 

the work access platform. The drive pulley pinch points 

were approximately 2 feet away from and 18 inches above the 

platform. I find that an employee could slip into the 

pinch points, particularly when stepping over the transmission area to gain access to the transmission lever. At 

this point the lever is only 14 inches from the pinch point 

possibly placing the employee only 6 to 8 inches away. The 

3294 
danger is, of course, that an arm or foot could slip into 

that pinchpoint thereby causing loss or crushing of a limb. 

The inspector thought the operator should have seen the hazard. 

However for the reasons stated with respect to the previous 

violation, I also find reduced negligence here. 

Citation No. 208696 in Docket No. YORK 80-68-M charges 

that the 966-C Caterpillar S/N 766J4201 front-end loader was 

operating on ramps. and elevated haulage roads without adequate 

brakes. Inspection revealed that the left rear brake "can" 

had been removed and the brake lines blocked off with a plug. 

The machine operator admitted that it had been in this condition for approximately 2 weeks. 

The cited standard, 30 C.F.R. § 56.9-3, requires that 

powered mobile equipment be provided with adequate brakes. 

The violation is indeed conceded by the operator. The cited 

condition presented essentially three possibilities for serious 

or even fatal injuries. The front-end loader could lose control 

and turn over, could run into a truck, or could run into pedestrians walking near the trucks being loaded. 

There is no question but that there was a high degree of 

negligence here. It took an affirmative act on the part of 

the operator, or someone acting on his behalf, to insert the 

plug in the brake line. Clearly, also, there was gross negligence on the part of Mr. Vailloncourt, the foreman, who admitted 

he had the replacement brake "can" in his pick-up truck for some 

2 to 3 weeks. He nevertheless did not bother to make the repairs 

and continued to operate the machine knowing of its serious 

defect. Vailloncourt's negligent acts as foreman are chargeable 

to the operator. 

It is conceded by the Government that the cited guarding 

conditions were corrected within the time set for abatement. 

I therefore consider that the operator demonstrated good faith 

in those two cases in attempting to achieve rapid compliance 

after notification of the violation. With respect to the brake 

condition, a great deal of testimony was produced from the 

Government regarding an exchange between Trebino and Vailloncourt 

and between Trebino and the inspector regarding Trebino's ostensible reluctance to have the equipment removed from service. Once 

the equipment was subject to a withdrawal order and after 

Inspector Fowler explained the effect of the withdrawal order, 

however, I believe that Mr. Trebino did in fact exercise appropriate good faith abatement in that the equipment was withdrawn from service and was repaired. 

There is no evidence that any penalties I would assess in 

these cases would affect the operator's ability to continue in 

business. Although Mr. Trebino claims that he is essentially 

3295 
out of this mining business he nevertheless concedes that TaceY. 

is a viable concern and that it has some material in stockpile 

in the area of the cited plant. He concedes that given the 

opportunity for a sale it would be removed. He has submitted 

no evidence of what financial impact any penalties in these 

cases might have upon the ability of Tacey to continue in 

business. The size of the business is concededly small and I 

assume that it has not increased in size since the facts that 

we have available were obtained. Since this plant had not been 

inspected before, there is of course no history of violations. 

Considering all of these factors, I feel that the following 

penalties are appropriate. Going first of all to the citations 

in Docket No. YORK 80-72-M, I feel that a reduction from the 

penalty as originally assessed in this case would be appropriate 

in light of the findings that I have made regarding reduced 

negligence. ' Therefore, I would assess a penalty of $20 as to 

Citation No. 208691, and $20 as to Citation No. 208692. In 

Docket No. YORK 80-68-M I found the one violation cited to be a 

major hazard and involved gross negligence, I find that a penalty 

of $200 is appropriate. 

ORDER 

Wherefore the operator is ORDERED to pay a 

days of the date of this decision. 

Distribution: 

Frederick E. Dashiell, Office of the S licitor, U.S. Department of Labor, 

JFK Federal Building, Boston, MA 022 3 (Certified Mail) 

Larry Trebino, President, Tacey Transport Corporation, 5 Riverhurst Road, 

Billerica, MA 01821 (Certified Mail) 

3296 
/ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 4 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

FILLMORE INDUSTRIES, INC., 

Respondent 

Docket No. YORK 80-66-M 

A.G. No. 27-00222-05001 

Fillmore Pit and Plant 

DECISION 

.Appearances: 

Before: 

Frederick E. Dashiell, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Arthur C. Fillmore, Concord, New Hampshire, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalty 

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

30 U.S.C. § 801 et seq., the "Act." At hearing on August 12, 1980, in 

Manchester, New Hampshire, Petitioner submitted a proposal for settlement 

requesting approval of a SO-percent penalty reduction. I approved the 

settlement proposal at hearing and I reaffirm that ~ecision at this time. 

This case involves four citations (Nos. 216614, 216615, 216616, and 

216617) each alleging one violation of 30 C.F.R. § 56.14-1 (requiring the 

guarding of exposed moving machine parts), and each initially assessed at $40. 

Petitioner proposes a $20 reduction in penalty for each citation because of 

the operator's confusion over the implementation of the standard. Respondent 

erroneously believed that guards were not needed if it had skirtboards located 

along the edge of the beltline. Respondent also purchased the equipment with 

the understanding from its manufacturer that it was in compliance with safety 

standards. 

I accept Peti~ioner's representations. Considering the documentary evidence submitted in light of the criteria set forth in section llO(i) of the 

Act I conclude the settlement is appropriate. 

3297 
WHEREFORE, I ORDER Respondent to pay the agreed pena ty of $80 within 

l&\,,C\__ 

30 days of this decision. ' 

udge 

Distribution: 

Frederick E. Dashiell, Esq., Office of I/the Solicitor, U.S. Department 

of Labor, JFK Federal Building, Room ,~ 803, Boston, MA 02203 

(Certified Mail) ,; 

Arthur C. Fillmore, President, Fillmore Industries, Inc •. , 

RFD Rte. #8, Concord, NH 03301 (Certified Mail) 

3298 
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. 

TAZCO, INC., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(?03) 756-6210/17112 

NOV 1 7 1980 

Civil Penalty Proceeding 

Docket No. VA 80-121 

A.O. No. 44-05124-03009V 

Laurel Mine No. 2 

DECISION AND ORDER 

The parties move for approval of a settlement of a serious roof 

control violation at a 20% reduction in the amount initially assessed, 

$500. 

Based upon an independent evaluation and de novo review of the 

circumstances and the amount of the penalty warranted, I conclude the 

reduction fails to give sufficient weight to the exemplary action 

the operator took to deter future violations and insure voluntary 

compliance. In the thousands of violations that have come before me 

f0r adjudication, this is the first in which an operator, and a small 

nonunion operator at that, undertook to impose the most severe of 

disciplinary sanctions for a miner's grossly negligent refusal to 

comply with a mandatory safety standard, namely summary discharge for 

cause. If more operators could be.persuaded to follow this course of 

action, there would be far fewer deaths and disabling injuries in the 

mines. I wish to commend this operator and once again endorse the 

following recorrrrnendation of the President's Commission on Coal: 

That shared responsibility by management and labor for 

improving the safety of underground mining include acceptance 

of the principle that coal companies not prepared to operate 

safe mines and miners not prepared to observe safe mining 

practices h.ave no place in the industry. 

See also, Secretary v. Davis Coal Company, WEVA 80-589, et al., Order 

Denying Settlement, dated November 12, 1980, copy attached. 

3299 
Accordingly, it is ORDERED that for the violation found the 

operator pay a penalty of $400, with ~~ent to be suspended. It is 

FURTHER ORDERED that the captioned ma~ be, a~ereby is, DISMISSED. 

~~istrative ~;ed~y Law Judge 

~ 

Distribution: 

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Paul Merritt, Tazco, Inc., P.O. Box 367, Doran, VA 24612 (Certified 

Hail) 

3300 
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. 

GOODE CONTRACTORS, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /"12 

NOV 1 7 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-540 

A.O. No. 46-03491-03005 

No. 1 Surface 

DECISION AND ORDER 

For the reasons set forth in the order to show cause and the 

Secretary's response, including counsel's oral withdrawal of her 

caveat to the 

of $1. 00, and 

It is FURTHER 

DISMISSED. 

suspension, it is ORDERED that the operator pay a penalty 

that payment be suspended, for the violation found. 

ORDERED that the captioned ma~54be, and hereby is, 

l :/ / .. 

/ 

u ,..;-•"• ........... r, ,, 

.Ju dee 

Distribution: 

Gerald Goode, P.O. Box 117, Cagin Creek, WV 25935 (Certified Mail) 

Barbara Kaufmann, U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

3301 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (7!l:D. 756-6236 

NUV 1 7 1980 

SE\.RETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. VINC 75-180-P 

A/O No. 2607-89 

Docket No. VINC 75-181-P 

A/O No. 2607-93 

No. 21 Mine 

Docket No. VINC 75-183-P 

A/O No. 2604-95 

No. 24 Mine 

Docket No. VINC 75-185-P 

A/O No. 2617-85 

Docket No. VINC 75-186-P 

A/O No. 2617-87 

No. 26 Mine 

DECISION 

On June 10, 1976, I issued a decision in the above cases which 

disposed of 47 allegations of violations of the health and safety 

standards. 1/ A total penalty of $5,925 was assessed for those violations I found to have occurred. 

On October 24, 1980, the Federal Mine Safety and Health Review 

Commission issued a decision in which it set aside my ruling as to six 

of the notices of violation that T h;:ici vacated. I will assume thereiure 

that my prior decision still stands except for the six noti.ces of violation mentioned in the Commission's decision. It is noted that, according 

to a document filed with the Commission on April 15, 1980, by Old Ben 

Coal Company, the penalties which I assessed were paid by Old Ben as of 

June 30, 1976. 

The Commission did not identify the notices by initials and.dates 

but inasmuch as I vacated only two notices of violation involving 30 

C.F.R. § 75.400, th!-! t10Lit:cs remanded to me by the Commisoion must h,.wf>. 

been 3 MK <late<l January 15, 1974, and 2 MK dated February 28, 1974. 

1./ Fourteen of these alleged violations were in Docket No. VINC 75-184-P 

which was not appealed. 

3302 
Also, inasmuch as I vacated four notices involving 30 C.F.R. § 75.403, 

the Commission must have remanded to me Notices of Violation 1 MK dated 

February 25, 1974, 1 DLG dated November 26, 1973, 1 NEN dated December 

19, 1973, and 1 NEN dated January 10, 1974. This is also confirmed by 

the Secretary's appeal brief. Old Ben did not file a brief. 

Notices of Violation 3 MK dated January 15, 1974, and 2 MK dated 

February 28, 1974, both involve accumulations of combustible material on 

a piece of mining equipment. '};_/ While I find only a moderate degree of 

hazard in the absence of testimony regarding the dimensions of the 

accumulations, Respondent was nonetheless negligent in allowing the 

accumulations to exist. All of the other required criteria were considered 

in the original opinion. As I read the Commission's decision I have no 

choice but to find that the violations did occur and I accordingly 

assess a penalty of $100 for each of these notices. 

As to the other four notices of violation involved, I vacated the 

notices because the band sample method was used to collect the material, 

which was analyzed and found to have less than the required percentage 

of non-combustible material. The Commission has approved the band 

sample method so the violations were accordingly established. I find a 

low order of negligence'but the existence of hazardous conditions with 

respect to each notice of violation. A penalty of $100 for each notice 

is assessed. 

2/ In my original opinion, for some reason that I cannot recall, I cited 

K & L Coal Company 6 IBMA 130 (1976) as the basis of my decision vacating 

the two citations when North American Coal Corp. 3 IBMA 93 (1974) would 

have been a more appropriate citation. The Commission recognized that I 

had relied on and followed North American but nevertheless stated that I 

erred in doing so. Most of the judges with whom I have discussed the 

effect of the Interior Board's decisions consider that under Section 301 

of the transfer provisions of the amending act, the Commission Judges 

are bound to follow Board decisions until they are reversed by the 

Commission. Under this view it would be error for a judge to refuse to 

follow a Board decision that he disagreed with. But if it is error to 

follow a Borad decision which the Commission later disagrees with then 

it would not be error for a Commission Judge to ignore a Board decision 

if the Commission later determined that the Board was wrong. The precedential value of a Board decision would thus depend on whether the judge 

thinks the Commission will agree with the Board decision. That amounts 

to Board decisions having little or no precedential value, and I question 

whether that was the Commission's intent. 

3303 
ORDER 

IT IS THEREFORE ORDERED that Respondent pay to MSHA, within 30 

days, a civil penalty in the total amount of $600. 

Distribution: 

~f.JJ;~;, Charles C. Moore, Jr. 

Administrative Law Judge 

Edmund J. Moriarty, Esq., Old Ben Coal Company, 125 South Wacker 

Drive, Chicago, IL 60606 (Certified Mail) 

Thomas A. Mascolino, Esq., Cynthia L. Attwood, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

3304 
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. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6210/11/12 

NOV 1 9 1980 

Civil Penalty Proceeding 

Docket No. VA 80-137 

A.O. No. 44-05144-03016V 

Mine No. 1 

RED ASH SMOKELESS COAL CORP., 

Respondent 

DECISION AND ORDER 

These two serious roof control violations were initially assessed 

at $2,500. The parties propose a settlement in the amount of $2,000. 

Based on an independent evaluation and de nova review of the circumstances, 

I find the amount of the settlement proposed is, insofar as the corporate 

operator is concerned, in accord with the purposes and policy of the 

Act. I wish to record once more my vigorous disagreement with the abuse 

of prosecutorial discretion involved in MSHA's failure and refusal 

to initiate penalty proceedings against the individuals responsible 

for these violations. Section 2(g) of the Mine Safety Law, 30 U.S.C. 

§ 80l(g)(2), specifically provides that it is the purpose of the law 

"to require that • • • every miner" employed in a mine "comply with 

[the mandatory safety] standards." 

It is my firm belief that the grant of immunity conferred on the 

workforce by MSHA is a violation of this provision and encourages 

disrespect for the law. I note that the carnage in the mines has sharply 

increased and that in one recent thirty day period 22 miners were killed, 

or almost one for every working day. Mr. Lagather is quoted as saying 

he doesn't "have any concrete reason to point to". I suggest he does, 

and that lax enforcement against miners who commit safety violations is 

a very "concrete" reason. 

If I thought it would change the administration's policy I would 

approve this settlement but suspend payment of the penalty unless and 

until appropriate action is taken against the individuals who bear 

culpable responsibility for the violations in question. I recognize, 

however, that we are in a period of transition and that until that is 

resolved little change in this misguided policy can be hoped for. 

3305 
be, 

pay 

and 

Accordingly, it is ORDERED that the motion to approve settlement 

and hereby is, GRANTED. It is FURTHER ORDERED that the operator 

the penalty agreed upon, $2,000, o~r before Monday, December 1, 

that subject to payment the capti~n7A matter be DISMISSED. 

/ . ./ 

i / ·" .7 k._,._,_ __ f7f ~zph B. Ken edy 

Administrative Law 

Distribution: 

1980, 

David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Terry L. Jordan, Esq., Jordan & Farmer, P.O. Box 747, Grundy, VA 24614 

(Certified Mail) 

3306 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

HI TENN, INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 9 1980 

Petitioner 

~~-­ Respondent 

Civil Penalty Proceeding 

Docket No. BARB 79-69-P 

A.O. No. 40-01995-03001 

Westel Tipple 

DECISION 

Appearances: Michael Bolden, Attorney, Office of the Solicitor, 

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

the petitioner. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil penalties 

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

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), charging 

the respondent with two alleged violations of certain mandatory safety standards found in Part 77, Title 30, Code of Federal Regulations. The proposals 

were filed on October 28, 1978, and subsequently on June 4, 1979, Chief Judge 

Broderick issued an order directing the respondent to show cause why it should 

not be deemed in default because of its failure to answer the proposals. 

By letter dated June 12, 1979, and filed June 18, 1979, respondent filed 

an answer to the show-cause order explaining the circumstances concerning one 

of the citations (No. 141646), and stating that it does not contest the second 

citation (No. 141647), and has made payment to MSHA in the amount of $72 for 

this citation, the $72 being the initial assessment made and proposed by the 

petitioner in its pleadings. 

By notice of hearing issued by me on August 25, 1980, and amended on 

September 19, 1980, the parties were notified that the matter was scheduled 

for hearing in Chattanooga, Tennessee, on Octob~r 1, 1980. Petitioner 

appeared at the hearing but the respondent did not. Under the circumstances, 

3307 
the hearing proceeded without the respondent and petitioner presented testimony and evidence in support of the citations and its proposal for assessment 

of civil penalties~ A bench decision was rendered, and is herein reduced 

to writing pursuant to 29 C.F.R. § 2700.65(a). 

Issues 

The principal issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of civil penalties filed in 

this proceeding, and, if so, (2) the appropriate civil penalties that should 

be assessed against the respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. 

In determining the amount of a civil penalty assessment, section 110 of 

the Act requires consideration of the following criteria: (1) the operator's 

history of previous violations, (2) the appropriateness of such penalty to the 

size of the business of the operator charged, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

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

Discussion 

I consider respondent's failure to appear at the hearing to be a waiver 

of any further rights to be heard. The record reflects that respondent 

received the two notices of hearing issued by me in this proceeding. Under 

these circumstances, I find that respondent has been given more than an 

adequate opportunity to be heard, and I conclude that respondent has waived 

its right to any further hearing and that the issuance of any show-cause 

order would be a fruitless gesture. I have considered this case de novo and 

my decision in this regard is made on the basis of the evidence and testimony of record as presented by the petitioner in support of its case at the 

hearing. 

At the hearing, petitioner's counsel was unable to verify respondent's 

claim that it had paid the initial assessment of $72 for Citation No. 141647. 

In addition, counsel failed to bring with him to the hearing·any evidence 

concerning respondent's prior history of violations. Under the circumstances, 

the record was left open, and petitioner was afforded an opportunity to file 

3308 
this information with me at a later date. Subsequently, by letter received 

October 22, 1980, petitoner filed a copy of an MSHA computer printout 

reflecting respondent's prior history of paid citations. In addition, 

petitioner confirmed that the respondent had in fact paid a civil penalty in 

the amount of $72 for Citation No. 0141647, and that a check in that amount 

had been received by MSHA's Office of Assessments on June 20, 1979, some 

8 months after petitioner's proposals for assessment of civil penalties were 

filed with the Commission, and some 2 months prior to the initial notice of 

hearing was served on the parties. 

Since the payment of the initial assessment of $72 came after the 

docketing of this case by the Commission, that payment, if in fact accepted 

by MSHA as payment for Citation No. 0141647, is in effect an offer of settlement for payment of the full assessment made by MSHA. Since petitioner was 

oblivious to the fact that payment had been made, even though it had apparently been accepted by MSHA, testimony and evidence was taken at the hearing 

with respect to the facts and circumstances surrounding the violation and 

I assessed a civil penalty of $100 for the violation. However, in fairness 

to the respondent, since the payment of $72 was obviously made in good faith, 

I will treat it as an offer of settlement and will affirm and adopt this 

amount as payment for the citation in question, and my tentative decision 

made at the hearing assessing a $100 civil penalty for this citation is 

rescinded. 

Findings and Conclusions 

Fact of Violation 

Citation No. 141646, April 5, 1978, 30 C.F.R. § 77.400(b), states that 

"The tail pulley and V-belt located on the portable crusher was not provided 

with a guard while crushing coal at this installation." 

MSHA inspector Lee Aslinger confirmed that he issued the citation in 

question during the course of a regular inspection conducted at respondent's 

tipple on April 5, 1978. Tlie tail pulley in question was not provided with 

a guard and if the pulley belt were to break or snap, it would cause a whipping action and possibly cause injury to persons below the pulley location 

(Tr. 9-12). The crusher was in operation at the time he observed the condition (Tr. 18), and the pulley was located some 8 to 10 feet above the ground 

(Tr. 19). The belt was approximately 6 to 8 feet long, and the crusher operator would possibly be in the area of the unguarded pulley to oil, adjust, or 

perform maintenance on the belt (Tr. 25). 

I conclude and find that petitioner has established a violation of section 77.400(b) as charged in Citation No. 141646, and it is AFFIRMED (Tr. 

39). 

Gravity 

I find that the violation is nonserious. The inspector candidly admitted 

that the lack of a guard was not hazardous unless someone was directly in the 

3309 
immediate vicinity of the V-belt (Tr. 17). He also stated that the area 

beneath the pulley ~as not an area where employees would travel in the normal 

course of their duties (Tr. 23), and he conceded that the probability of anyone being struck by a broken belt was remote (Tr. 24-25). 

Negligence 

I find that the respondent failed to exercise reasonable care to prevent 

the condition cited by the inspector which resulted in the issuance of the 

citation in question and that such a failure on respondent's part constitutes 

ordinary negligence. Inspector Aslinger testified that he had previously 

advised the respondent about the guarding requirements for the pulley V-belt 

(Tr. 13-16). 

Good Faith Compliance 

The citation was abated by removing the crusher from mine property (Tr. 

16-17), and I find that respondent exercised normal good faith compliance in 

this regard (Tr. 42). 

Size of Business and Effect of Civil Penalties on Respondent's Ability to 

Remain in Business 

Petitioner's evidence reflects that respondent's mine production was 

100 tons of coal daily on one production shift and that respondent employed 

from two to four employees at its tipple (Tr. 34-35, Exh. P-1). Petitioner 

conceded that respondent's tipple operation was small in size (Tr. 35), and 

I adopt this as my finding in this case. 

Since the respondent did not appear at the hearing, there is no information that the civil penalty assessed by me in this case will adversely 

affect the respondent's ability to continue in business, and _I conclude that 

it will not. 

History of Prior Violations 

Respondent's prior history of violations as reflected in the computer 

printout submitted by the petitioner reflects that for the period April 5, 

1976, through April 5, 1978, respondent paid $229 for six assessed violations. 

I cannot conclude that this record is a bad one, nor can I conclude that 

respondent's history of prior violations warrants any increase in the civil 

penalty assessed for the violation which has been affirmed in this case. 

Penalty Assessment 

Petitioner's counsel asserted that the proposed civil penalty advanced 

in this case accurately reflects and takes into account an evaluation of all 

of the statutory criteria found in section llO(i) of the Ac~, and that it is 

petitioner's position that as a minimum, the proposed assessment of $210 

should be affirmed (Tr. 43). 

3310 
I conclude that the proposed civil penalty of $210 is reasonable for 

Citation No. 141646, April 5, 1978, 30 C.F.R. § 77.400(b), and I adopt it as 

my civil penalty assessment in this case. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount of $210 for 

the citation which has been affirmed in this case, payment to be made within 

thirty (30) days of the date of this decision. ,7i (/~ y ' .__---

c/ ·~~1/ orge ;t':'1<outras II. t::~ dministrative Law Judge 

Distribution: 

Michael Bolden, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Donovan F. Lueking, President, Hi Tenn, Inc., Route 6, Box 24, Harriman, 

TN 37748 (Certified Mail) 

3311 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IOV 1 9 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-217-M 

Petitioner A.O. No. 33-00099-05006 

v. 

THE STANDARD SLAG COMPANY, 

Respondent 

Docket No. VINC 79-100-PM 

A.O. No. 33-000099-05003 

Appearances: 

Before: 

Marblehead Stone Plant & Quarry 

., 

DECISIONS 

Linda Leasure, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

petitioner; 

William. Ramage and Stephen Hedlund, Esqs., Youngstown, 

Ohio, for the respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penalties 

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

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), 

charging the respondent with six alleged violations of certain mandatory 

safety standards found in Part 56, Title 30, Code of Federal Regulations. 

Respondent filed timely answers contesting the civil penalty proposals 

and requested a hearing. A hearing was convened on July 10, 1980, in 

Marblehead, Ohio, and, at the request of the parties, ~he hearing was conducted at the mine site in order to facilitate a visit to the areas where 

the alleged violations occurred for the purpose of visually familiarizing me 

and the parties with the conveyor belt which was cited for unguarded pulley 

areas and-the gallery where the access citation was issued. The parties 

filed posthearing briefs, and the arguments presented have been considered 

by me in the course of these decisions. 

Issues 

The principal issues presented in these proceedings are: (1) whether 

respondent has violated the provisions of the Act and implementing regulations 

3312 
as alleged in the proposal for assessment of civil penalties filed in these 

proceedings, and, if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of these decisions. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator 

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

of the operator in attempting to achieve rapid compliance after notification 

of the violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 ~ seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 ~seq. 

Stipulations 

The parties agreed to the following (Tr. 2-4): 

1. Respondent's mining operations constitute a "mine" within the meaning of the Act and respondent is subject to MSHA's enforcement jurisdiction. 

2. Respondent has a good history of prior violations. 

3. The scope of respondent's mining operations at the mine in question 

constitute a medium-to-large mining operation. 

4. Respondent demonstrated good faith compliance in abating the citations which were issued in these proceedings. 

Discussion 

Docket No. VINC 79-100-PM 

Citation Nos. 368786 and 368787, both issued by MSHA inspector Michael J. 

Pappas on August 2, 1978, cite violations of 30 C.F.R. § 56.14-1, and the conditions described assert that guards were not provided on the head and tail 

pulley of the No. 18 conveyor belt. 

3313 
Testimony and Evidence Adduced ·by the Petitioner 

MSHA inspector Michael J. Pappas, testified that he conducted a spot 

inspection of the mine site on August 2, 1978, and upon observation and determination that the head and tail pulley of the No. 18 conveyor belt were not 

guarded he issued the two citations in question and cited a violation of the 

guarding requirements of. mandatory standard 56.14-1. The head pulley pinch 

point was at the top of the pulley drum and the tail pulley pinch point was 

at the bottom of that pulley. The hazards involved at both locations involved 

persons becoming entangled by getting their clothing or hands and arms caught 

in the pinch points. The belt was not in operation at the time the cited conditions were observed and it was the inspector's understanding that electrical 

maintenance work was being performed on the belt, but he could not remember 

observing anyone around the belt areas in question (Tr. 5-8). 

On cross-examination, Mr. Pappas confirmed that the belt was a new piece 

of equipment and that it was not in operation at the time the citations 

issued. However, he was made aware of the fact that the belt had been previously used and was in operation, but he could not recall to what extent it 

had been used to transport stone, and he confirmed that electrical maintenance 

work was being performed on the belt (Tr. 9-10). 

In response to bench questions, Mr. Pappas stated that it was his understanding that the belt was not in full production because the electrical 

installation had not been completed. However, he stated that it is his practice to cite an operator for guarding violations if he does not observe any 

actual or obvious maintenance being performed. If he observes a guard off 

a piece of equipment which is down for maintenance he will not issue a citation. In this particular case, he observed no guarding devices at all (Tr. 

10-12). 

Respondent's Testimony and Evidence 

Plant superintendent Joseph Lucas testified that the cited conveyor belt 

was installed in approximately March o~ 1978 and it was used to transport and 

load a particular type of stone being stored in the area. After the initial 

installation of the belt, work had been performed on it, and according to 

company records, it was first operated on July 27, 1978. However, electrical 

problems were encountered after an hour or so of using the belt. The belt was 

operated so as to check out its tracking during the actual loading process and 

to ascertain whether any adjustments were required. No guards were installed 

on the belt during this initial operational period because the system had to 

be checked out to determine whether it was functioning properly before any 

guards were manufactured and installed, and no one was around the pulley 

areas. Electrical problems were encountered as soon as the belt began to 

run, and according to company maintenance records, repairs were begun on 

July 27th, and subsequent maintenance work was performed on August 2, 4, 5, 

and 7 on the belt centrifugal switches. During this maintenance work, the 

power would be shut off, the belt locked out, and another belt was used to 

transport the stone materials (Tr. 22-30; Exhs. R-1 through R-3(a)). The 

guards were installed on August 5th (Tr. 37). 

3314 
On cross-examination, Mr. Lucas reviewed his maintenance records and 

testified as to certain maintenance which had been performed on the belt in 

question as reflected by those records during the periods July 27 through 

August 2, 1979, during which time the belt would have run empty and with no 

materials on it (Tr. 30-35). Aside from testing the belt while materials 

are on it, when actual electrical maintenance is performed on the belt it is 

locked out and not running (Tr. 38). 

General superintendent Thomas Neopolitan testified that at the time the 

custom belt specifications were submitted for the fabrication of the conveyor 

itself, guards were ·not included because the conveyor had to be installed 

first in order to determine the types of guards required. He fully intended 

to install the guards, and he agreed that failure to guard such equipment 

would expose someone to danger. He confirmed that the conveyor in question 

was initially fabricated and installed in July 1978, and final installation 

took place in August. He also confirmed that other similar conveyors used at 

the mine were guarded (Tr. 38-42). 

Docket No. LAKE 79-217-M 

By motion filed June 26, 1980, petitioner moved 

tions on the ground that they were vacated by MSHA. 

at the hearing and the citations were dismissed (Tr. 

question are as follows: 

to dismiss three citaThe motions were granted 

2). The citations in 

Citation No. Date 30 C.F.R. Section 

368909 

368910 

368911 

3/21/79 

3/21/79 

3/21/79 

56.11-2 

56.14-1 

56 .14-1 

Citation No. 368912, issued on March 21, 1979, 'by MSHA inspector Michael 

Pappas, charges a violation of 30 C.F.R. § 56.11-1, and the condition or 

practice described by the in~pector on the face of the citation states: "A 

safe means of access was not provided to the 4-A galleys [sic]. Buildup of 

material on walkway of approx. 8'-12', 20"-24"." --

Testimony and Evidence Adduced by the Petitioner 

Inspector Pappas confirmed that he inspected the mine site on March 21, 

1979, and observed the conditions of the 4-A gallery. Access to the gallery 

is by means of an elevated walkway, and access to the catwalk area where the 

violation occurred was by means of a ladder leading down to the catwalk and 

work platform. He cited a violation of section 56.11-1 after finding an 

excessive buildup of materials on the catwalk leading to the work platform 

under the takeup belt pulley area of the gallery belt. The extent of the 

material buildup was some 6 to 7 feet to a height of 2 feet. The elevation 

of the work platform was approximately 90 feet off the ground and the hazard 

involved was that someone would have to walk over the build~p on the catwalk 

in order to reach the work platform. Abatement was achieved by cleaning the 

catwalk (Tr. 13-16). 

3315 
On cross-examination, Mr. Pappas confirmed that the gallery area cited 

was the catwalk area reached by means of a ladder located at the top of the 

gallery. H~ believed the area should have been cleaned up by shoveling the 

material off the catwalk, and unless the material is cleaned periodically, 

the metal catwalk would in time be subjected to rust, rot, and corrosion. 

His principal concern, however, was the fact that a person walking on the 

catwalk would have to cr~wl over the buildup of materials, and he believed 

that such an area should be cleaned before anyone goes over it (Tr. 16-17). 

In response to further questions, Mr. Pappas described the materials 

which were built up on the catwalk as fine stone particles which fall from 

the self-cleaning belt pulley located above the catwalk, and due to the dampness of the materials, it adheres together in a lumpy mass similar to mud. 

He did not know how long the materials had been on the catwalk and he made 

no inquiry of the respondent in this regard. He was not sure whether the 

belt had been running on the day in question and he observed no one in the 

gallery area, and no one was working in or around the area cited. Plant 

Superintendent Lucas was with him at the time and the conditions cited were 

discussed with him but he could not recall the specifics of that conversation. 

Mr. Pappas could not state how frequently any employee is required or likely 

to be in the cited area in the normal course of his duties and he checked 

no plant maintenance records to ascertain the frequency of any maintenance 

work being performed in the cited area. He reiterated that his concern 

was over the fact that someone walking over the catwalk to reach the work 

platform would have difficulty climbing over the buildup and would likely 

fall off the catwalk to the ground below (Tr. 17-21). 

Respondent's Testimony and Evidence 

Plant Superintendent Lucas described the operation and function of the 

gallery and indicated that it is part of a belt-conveyor system used to 

transport and store washed stone at the stockpiles beneath the gallery. He 

identified Exhibits R-4 and R-5 as photographs showing the access way to the 

gallery. A person would be required to go the top of the gallery area in 

order to grease rollers, and a person would have occasion to walk the top 

area once or twice a week to see that the system is working properly. Access 

to the work platform area cited by Mr. Pappas is by means of a ladder, and he 

could not remember the last time someone was in that area. The only reason 

one would have for being in the cited area would be to change out the conveyor 

boot pulley or in the event of a major breakdown, people would have to go 

there. The boot pulley has been changed out within the last year or two, but 

lubrication can be performed from the top and greasing is performed when the 

com~eyor is shut off and locked out. He identified Exhibit R-6 as a photograph of the inside of the gallery, and he confirmed the fact that materials 

do build up on the work platform and they result from fine wet materials 

falling off the end of the belt after the bulk of it has been dumped to the 

storage piles below the gallery. 

Mr. Lucas indicated that the belt usually runs 24 hours a day during its 

regular operation, and he estimated it would take less than a week for any 

3316 
accumulation or material buildup of the size described by the inspector. 

However, he also indicated that under standard plant procedures, material 

buildups are cleaned off before anyone. goes to the platform area. He identified photographs of the ladderway, work platform, and material buildup (Exhs. 

R-7 through R-10). He indicated that materials continually build up at a 

fast rate and a person cannot be stationed there while the conveyor is 

running. The conveyor should be shut down when materials are being cleaned 

up, and it is in fact locked out when maintenance is being performed, and 

except for someone going up to the gallery to check on the materials tripper, 

no one is there while the conveyor is running (Tr. 42-50). 

On cross-examination, Mr. Lucas stated that the wash plant operator would 

have occasion to walk through the area for the purpose of visually observing 

the belt rollers and tripping device, but he would have no reason to climb 

down the ladder to the work platform area in question since everything can 

be observed from above that location. However, if one had reason to go to 

the work platform area under the belt pulley he would have to use the ladder 

to get there. Mr.· Lucas confirmed that he understood the fact that the 

inspector was citing the work platform area where the materials were built 

up (Tr. 50-52). 

In response to bench questions, Mr. Lucas stated that the work platform 

was apparently installed to facilitate access to the conveyor belt tripper 

from underneath the belt, but that the tripper is usually changed out from 

the other end of the belt. Although he indicated that the belt could function without the work platform, he also admitted that it might have to be 

used. In the event the platform is used, the belt is shut down and someone 

will clean the platform area in advance of anyone going there and this would 

be the responsibility of the maintenance foreman on each shift. However, any 

work required to be performed in that area usually entails major problems 

taking more than 8 hours to correct and no one has any reason to perform any 

maintenance work there which might take 5 or 10 minutes. The person who walks 

the area to observe the belt in operation has no reason to routinely climb 

down the ladder and walk around the work platform, and in the 4 years that 

he has been superintendent he has never had any occasion to walk into that 

area, but he could not confirm that anyone else has been there in this time 

period (Tr. 53-56). 

Findings and Conclusions 

Docket No. VINC 79-100-PM 

Fact of Violations--Citation Nos. 368786 and 368787 

ln this case, respondent is charged with violations of section 56.14-1 

for failure to have guards at the head and tail pulley of one of its conveyor 

belts. Section 56.14-1 provides as follows: "Mandatory. Gears; sprockets; 

chains; drive; head, tail, and takeup pulleys; flywheels; c~uplings; 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." 

3317 
.; . -· -

Mandatory safety standard section 56.14-6, provides that "Except when 

testing the machinery, guards shall be securely in place while machinery is 

being operated." 

Petitioner argues that section 56.14-1 mandates guarding on various 

machine moving parts, including head and tail conveyor pulleys, to preclude 

contact with the pinch pqints, and that the facts establish that prior to the 

inspection, the respondent operated the conveyor without the guards i~ place. 

Even assuming that the "testing or repairs" exceptions set forth is in section 56.14-6, are applicable here, petitioner asserts that the exception 

refers to curing specif_ic mechanical malfunctions rather than to the testing 

phase of plant setup. In support of this argument, petitioner maintains that 

any electrical repairs performed by the respondent in this case were at locations removed from the unguarded pulley areas and that such testing for electrical problems would not have necessitated removal of the guards. In short, 

petitioner takes the position that the exception found in section 56.14-6, 

simply does not apply to the facts presented in the instant proce~ding. 

In support of its position, petitioner cites a decision by Judge Fauver 

in MSHA v. Union Rock and Materials Corporation, Docket No. DENV 78-579-PM, 

March 5, 1980, where he affirmed a violation of section 56.14-6, after concluding that the phrase "except when testing .machinery" is limited to the 

testing or repairing of the equipment's mechanical parts due to a malfunction 

rather than to the testing phase designed to align the conveyor belts and to 

check their rotation. Judge Fauver found that "testing machinery" is not 

synonomous with a "testing phaseu because the first situation involves curing 

a mechanical malfunction while the second involves assuring the smooth 

running of the complete operation. He observed that in the latter instance, 

which could last as long as 6 to 7 days, the moving parts of the conveyor 

would be in operation creating a hazard which the safety standard is designed 

to prevent, but that when a piece of equipment is malfunctioning, the guards 

would have to be removed only for short periods of time while making the 

repairs. 

Respondent's defense to the citation centers on its assertion that at 

the time Inspector Pappas inspected the newly installed conveyor, it was not 

in operation but had been shut down, with the power locked out, for maintenance, and that it was impossible for anyone to have been injured by the 

unguarded pulleys. Further, respondent asserts that'the only time the conveyor had been run prior to the inspection of August 2, was for the purpose 

of testing it. Since section 56.14-6, provides an exception to and limitation of the guarding requirements of section 56.14-1, respondent concludes 

that during the testing of equipment, whether newly installed or after maintenance, it would not be practicable or necessary to have guards in place 

on the pulleys. In support of its interpretation, respondent points out 

that in Docket No. LAKE 79-217-M, two of the three citations vacated and 

dismissed at the hearing on motion by the petitioner also concerned alleged 

violations of section 56.14-1, cited by Inspector Pappas March 21, 1979, for 

failure to provide guards for the A-20 stacker conveyor drive motor belts 

and tail pulley, and that the petitioner moved to dismiss them after it was 

3318 
pointed out that the stacker was out of service because maintenance was being 

performed at the time of the inspection. 

Petitioner's written motion of June 26, 1980, for the dismissal of the 

two March 21, 1979, citations for violations of section 56.14-1, simply 

states that they were vacated by MSHA, and no further information was presented by the parties during the hearing with respect to the facts and circumstances surrounding MSHA's vacation of those citations. However, in its 

answer and notice of contest filed September 14, 1979, respondent states that 

at the time the equipment was cited it was in scheduled maintenance, that 

work had commenced on March 13, 1979, and was completed on April 2, 1979, 

9 working days after the inspection of March 21, 1979, and that the inspector 

was informed at that time by the mine superintendent that the stacker was 

being worked on and was not ready for production. In support of its contentions in this regard, respondent included copies of its daily maintenance time 

records which reflected the hours that were worked on the stacker, and aside 

from the general remarks on most of the time sheets, four of the records of 

~~rch 26, 29, and April 2, 1979, specifically show work performed on the 

guards and belt. Under these circumstances, respondent's assertion that 

the circumstances surrounding petitioner's vacation of the two section 

56.14-1 citations of March 21, 1979, present identical situations requiring 

consistent application of the standard has merit and there is a strong 

inference that petitioner's rationale for vacating the citations and moving 

for dismissal of the charges was based on its acceptance of respondent's contentions in this regard. 

Inspector Pappas had no independent knowledge as to how long the belt in 

question had been operated in an unguarded condition. At the time the citation issued, he was told that the belt had not been fully operational and in 

production because the electrical installation taking place nearby the belt 

had not been completed, and he indicated that the area where the electrical 

maintenance was taking place was separate and apart from the physical location of the cited unguarded belt pulleys (Tr. 10). He was aware of the fact 

that the belt had been previously in operation for the purpose of loading and 

transporting stone to a boat (Tr. 9). When asked whether he observed the 

belt being worked on when he cited it, he answered "There was electrical work 

being done on the electrical system'' (Tr. 9). How~ver, with respect to his 

being advised that the belt had been used sometime in the past to some degree, 

he did not know whether the use of the belt in this regard was for testing or 

production (Tr. 10). 

In explaining his interperation and application of section 56.14-1, 

Mr. Pappas stated that he recently observed actual maintenance taking place 

in a similar situation as the one presentd in this case and the guards were 

off the equipment. He did not issue a violation because he actually observed 

the men performing the work. He also indicated that he would not issue a 

citation in such a situation if he is advised that maintenance is in progress 

but that the men are simply taking a lunch break. In short, if he does not 

actually observe the maintenance taking place, and has no personal knowledge 

of this fact, he will issue a citation for unguarded pulleys. In the instant 

3319 
case, no guards were in place or near the equipment and he saw no evidence of 

any maintenance being performed (Tr. 12). He was aware of the fact that the 

equipment was new, that it was not in operation at the time he cited it, and 

that he observed no one in the area of the unguarded pulley pinch points. 

Respondent's testimony and evidence clearly indicates that the installation of a workable conveyor system to accommodate the specific needs and 

requirements of the oeprator in the conduct of his daily mining operations is 

no easy task. Respondent has established through credible testimony of its 

plant superintendents that the guards ultimately installed on its conveyors 

once they become fully operational as an integral part of its production process are fabricated and manufactured in accordance with specifications drafted 

by respondent's engineering department after analysis of the types of materials which have to be moved. Since the respondent's mining operation 

involves the movement of different types of materials over great distances 

to the boat-loading dock, each part of the conveyor system must necessarily 

be tailored to its specific needs and requirements. 

Superintendent Neapolitan's testimony reflects that the conveyor belt in 

question is a customized conveyor installation made up of stock parts such as 

head pulley gear reducers and motors, and head pulleys and guards which have 

to be shop-fabricated and machined. Once the belt system is put together, 

the guards cannot be fabricated and installed until such time as the operator 

is satisfied that the system will work under normal production conditions (Tr. 

38-41). I find this practice and procedure to be a reasonable and common 

sense approach, and Mr. Neapolitan himself candidly agreed that aside from 

testing, failure to guard the conveyor parts in question, in the normal course 

of business, would expose someone to a danger (Tr. 40). Mr. Neapolitan also 

testified that similar conveyor belt operations at other mine locations which 

operate the same way as the conveyor which was cited are guarded, but he did 

not know whether the other equipment guards were fabricated or installed 

following the same procedures he described because that equipment was 

installed and operational before his employment at the mine (Tr. 41). However, he did state that the plant belt lines are not purchased on the open 

market with manufacturer's guards already installed on them (Tr. 41). 

Plant Superintendent Lucas testified that the conveyor belt in question 

was first operated on July 27, 1978, that work had been performed on the belt 

from the day it was initially installed sometime in March 1978. It was 

initially installed at that time for the purpose of handling a particular 

type of stone being stored in that area. Prior to this time, the plant was 

operating with other conveyor systems, and work was being performed on the 

conveyor right up to the time it was put in operation on July 27. However, 

the belt was only operated for an hour or so before electrical problems 

developed causing it to be buried while it was loading a boat, and this was 

the first time it had run since it was put together (Tr. 23-24). The purpose 

for running the belt with loaded stone was to ascertain whether it was 

operating properly and to determine whether the belts were ".tracking" 

properly on the belt rollers. If the tracking is not working properly, work 

has to done on the pulleys, rollers, and on the motor taper locks and shivs, 

and the pulley itself may have to be replaced. 

3320 
Mr. Lucas conceded that no guards were in place when the conveyor was 

first used because it had to be operated to ascertain that everything was in 

proper working order while the material was being loaded. An inoperable 

switch failed to cut another feeder belt off and the material kept running 

and buried the conveyor belt in question (Tr. 26), and company maintenance 

records reflected that work began to correct that problem on August 2, 1978, 

and the next time the belt was used to load a boat was on August 7, 1978, 

and the guards were installed before that time, namely, on August 5, 1978 

(Tr 28). He conceded that the belt was tested again on and off before the 

guards were installed to insure that it was functioning properly, but did not 

know how many times it was run (Tr. 28). 

Mr. Lucas testified that during the time work was performed on the conveyor, the power would be shut off, the equipment is locked out, and the 

person that locks it out retains the key. During this testing period, loading is conducting by means of another belt-conveyor route, but in order to 

determine whether the conveyor is tracking properly, it has to be done with 

materials on it and it is necessary that a ship be present so that the materials are not dumped in the lake (Tr. 29). However, he was unsure whether 

the belt ran between July 27 and August 2, but if it did, it would have been 

empty because the next time a boat was loaded was on August 8 (Tr. 31). 

After careful review of Judge Fauver's findings of fact in Union Rock 

and Materials Corporation, supra, it seems clear to me that the facts in that 

case are somewhat different from those presented in this case'. There, the 

entire existing plant equipment consisting of 15 conveyor belts had been 

completely moved to a new mine location for set up some 6 to 7 days before 

the inspection, and the conveyors would normally not be operated without the 

guards around the tail pulleys and belt drives except in those instances 

where the guards had to be removed to allow belt adjustments to be made. 

Since the existing equipment was simply being moved from one location to 

another, I assume that it included existing guards which had also been 

removed during the moving process but not reinstalled at the time the 

inspectors arrived on the scene. Observation of materials stockpiled at 

the end of the belt led the inspectors to conclude that the belts had been 

running without guards in·place for about and hour or so to check their 

rotation and alignment. 

On the facts presented in this case, the conveyor belt cited by 

Inspector Pappas was a newly installed single and fairly short and isolated 

conveyor which was not in operation when Mr. Pappas observed it. He saw no 

stockpiled materials and had no basis for concluding that the belt was used 

for production other than a statement made by some unidentified person that 

stone was moved on the belt sometime in the past during a period of time 

when the belt was not in full production because the electrical installation 

had not been completed. Mr. Pappas also confirmed that electrical work was 

being done nearby on the electrical system, and he pointed out the area where 

it was being done during the site visit (Tr. 9-11). 

3321 
Petitioner argues that any repair to the conveyor electrical system 

could have been performed with the guards in place, and that the only necessary alteration in its procedures to insure compliance with section 56.14-1, 

would be to fabricate and install guards early on during the conveyor hook-up 

sequence. Such a broad and general conclusion flies in the face of the 

specific facts of this case, and acceptance of petitioner's rigid application 

of section 56.14-1 would.place the cart before the horse, and would require 

an operator to manufacture and install guards during the initial conveyor 

installation without really knowing whether the system will work. I simply 

cannot accept this as a rational and reasonable interpretation and application of the standards in question. I conclude that on the facts of this case, 

the requirements of section 56.14-1 cannot be divorced from the exception 

stated in section 56.14-6. I conclude further that the term "testing 

machinery" as found in section 56.14-6, includes the initial setup of the 

equipment, including its operation with loaded materials to determine whether 

it will function properly. Once this initial testing phase is completed, and 

the equipment is put into normal production, an operator would be required 

to insure that the guards stay on the equipment as required by section 

56.14-1, as well as section 56.14-6. I reject Judge Fauver's narrow interpretation that the section 56.14-6 exception applies only to actual 

mechanical breakdown of the equipment. In my view, there is little or no 

practical distinction between a mechanical and electrical breakdowns insofar 

as the requirements of the standards in question are concerned. Any repair 

work necessary to render the equipment operational again would have to be done 

in accordance with the requirements of section 56.12-16, which mandates 

deenergizing and locking out the equipment before any mechanical work is 

undertaken. 

In view of the foregoing findings and conclusions, I conclude and find 

that at the time Inspector Pappas observed the conveyor belt in question, it 

was down and locked out for repairs and testing, and he was aware of this 

fact because he observed maintenance being performed on the conveyor's 

electrical system nearby. I conclude further that since the conveyor was 

newly installed and undergoing tests to determine whether it was operating 

and functioning properly, it was not required to be guarded until such time 

as those tests were completed and the conveyor system was put into normal 

production. The fact that the conveyor was operated in the past for an hour 

or two with stone on it does not detract from the fact that respondent has 

established through credible evidence that it was operated only during the 

testing phase. Accordingly, the exception applied at that time, and petitioner has not convinced me otherwise. I find that petitioner has failed to 

establish a violation, and Citation Nos. 368786 and 368787, issued August 2, 

1978, are VACATED. 

Findings and Conclusions 

Docket No. LAKE 79-217-M 

In this case, respondent is charged with one violation of the provisions 

of mandatory safety standard section 56.11-1, which provides as follows: 

3322 
"Safe means of -access shall be provided and maintained to all working places." 

Citation No. 368912, on its face, alleges a violation of the "safe access" 

provision of section 56.11-1, in that there was an alleged buildup of material on the walkway of the 4-A gallery. As part of its posthearing arguments, 

petitioner includes a motion to amend its civil penalty proposal to charge 

the respondent, in the alternative, with a violation of mandatory standard 

section 56.20-3, which provides as follows: 

At all mining operations: (a) Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and orderly. 

(b) The floor of every workplace shall be maintained in a 

clean and, so far as possible, a dry condition. Where wet 

proc~ses are used, drainage shall be maintained and false 

floors, platforms, mats, or other dry standing places shall 

be provided where practicable. (c) Every floor, working 

place, and passageway shall be kept free from protruding 

mails, splinters, holes, or loose boards, as practicable. 

In support of its motion to amend, petitioner relies on Rule 8(e)(2) and 

15(b) of the Federal Rules of Civil Procedure, and asserts that the amendment 

is proper inasnruch as it neither alters nor increases the facts or issues in 

dispute, that respondent is not prejudiced, and that an amendment to conform 

to the evidence is appropriate. 

On October 20, 1980, respondent filed an opposition to petitioner's 

motion to amend the charges to cite an alternative violation of section 

56.20-3, and argues that to permit such an amendment after all of the evidence and testimony is in, and after the hearing has been concluded, is basi-. 

cally unfair since respondent has no opportunity to offer new evidence to 

meet such a charge. Respondent points out that Inspector Pappas' reason for 

issuing the citation in the first place was his concern that a person could 

have fallen from the area cited due to the buildup of materials. Further, 

respondent asserts that while Mr. Pappas made a passing reference on crossexamination to his concern that the walkway could rot over a period of time 

due to weather, there is no evidence that he ever inspected it for rotting, 

and while petitioner had ample opportunity to amend its pleadings at the 

hearing while the witnesses were present, it did not do so. 

After consideration of the arguments presented, petitioner's motion to 

amend at this late date is DENIED. The thrust of petitioner's case is the 

asserted hazard of someone tripping and falling from the walkway in question 

due to the material buildup. Petitioner's attempts to transform a tripping 

and falling citation into an after-the-fact housekeeping violation is 

rejected. In my view, piecemeal enforcement through posthearing amendments 

based on an inspector's testimony a year or so after his initial observations 

and issuance of a citation is not the best way to insure compliance with any 

mandatory safety standard. It seems to me that if the inspector in this case 

really believed that rot was a problem, it was incumbent on nim to inspect 

the walkway for that condition and to include it as part of the condition 

cited on the face of the citation. In this case, petitioner is bound by the 

3323 
citation as issued and I will consider only the alleged violation of section 

56.11-1 •. 

Fact of Violation--Citation No. 368912, 30 C.F.R. § 56.11-1 

Respondent is charged with failing to provide and maintain a safe means 

of access to a working place. Although the description of the condition 

cited by the inspector on the face of the citation is not a model of clarity, 

I believe it is clear that the respondent knew the precise area which concerned the inspector and the testimony of Mr. Lucas and the photographs he 

introduced confirm this fact. Having viewed the site of the alleged infraction, the are·a cited· by Inspector Pappas is a narrow catwalk leading to a 

work platform under the conveyor belt on the 4-A gallery. Access to the top 

of the gallery itself is by an elevated inclined metal grated walkway as 

depicted in photographic Exhibits R-4 through R-5, and access down to the 

catwalk is by means of a metal ladder normally protected by a piece of chain 

as depicted in Exhibits R-8 and R-9. Accordingly, the issue presented is 

whether the buildup of materials on and about the catwalk area ixf'question 

constituted a violation of section 56.11-1. 

In support of its case, petitioner asserts that the evidence establishes 

that respondent failed to remove a buildup of consolidated wet limestone 

particles measuring approximately 2 feet in height and 6 to 7 feet in length 

which were present on the catwalk leading to the work platform under the 

gallery conveyor belt. Petitioner asserts further that the buildup materials 

effectively blocked ingress and egress to the platform area, that the fall 

distance from the catwalk to the ground below was some 90 feet, and that 

employees regularly utilize the platform to perform maintenance on the takeup 

pulley located under the gallery conveyor. 

Respondent argues that section 56.11-1 should be read in light of the 

definition of the term "travelways," which is the regulatory heading under 

which the section is found. Coupled with the definition of the term "working 

place," respondent maintains that it is clear that working places and other 

areas to which safe access is required are for areas regularly used by mine 

personnel. Since the evidence establishes that the area in question is not 

regularly used by personnel, and is in fact used very infrequently, respondent argues that a requirement that this area be kept clean at all times is 

a totally unreasonable application of section 56.11-~, and is contrary to the 

purpose of that section. Respondent also maintains that no one is compelled 

to attempt to cross the area before it is cleaned, that the only forseeable 

danger would be in the cleaning operation itself, and by requiring respondent 

to repeatedly shut the conveyor down in order to clean the area, the chances 

of injury are greatly increased due to the instances in which someo..oe would 

have to be in the area to shovel off the debris. Regarding the inspector's 

concern that an employee might inadvertently wander into the area, respondent 

maintains that this is extremely unlikely due to its location which requires 

an employee to walk all the way to the end of the gallery, ~emove a chain, go 

down six or seven steps, and then proceed across a walkway which leads to no 

other place frequented by employees. 

3324 
Respondent does not dispute the fact that there was a buildup of materials on the catwalk in question and it is clear from the testimony presented 

that the material existed as stated by Inspector Pappas. It is also clear 

that Mr. Pappas did not know how long the materials had been present, and 

since he did not review any maintenance records he had no basis for determining how often anyone is required to climb down the ladder and walk across the 

catwalk to the platform adjacent to the underside of the conveyor belt, and 

he candidly 3dmitted that he had no knowledge of the frequency of travel 

along the catwalk. Further, it is also clear to me that Mr. Pappas cited 

section 56.11-1, out of a concern that someone using the catwalk would have 

to climb over the material buildup and that this presented a tripping or 

falling hazard. His off hand remark concerning possible rusting and rotting 

of the cat~lk, even if true, would still in my view constitute a condition 

to be cited under section 56.11-1, since the existence of a rotted or rusted 

catwalk, if proved to be in that condition and in fact contributed to the 

weakening of the structure, would not constitute a safe means of access. 

tlowever, the inspector was not concerned with any such condition at the time 

he issued the citation, and in fact, made no inspection of the catwalk to 

determine whether it had been corroded or rusted. He clearly believed that 

the obstructi.on caused by the materials on the catwalk precluded safe access 

to the platform area beneath the conveyor. 

The unrebutted testimony of Plant Superintendent Lucas is that during 

the normal operation of the conveyor there is no need for anyone to climb 

down the ladder and walk across the catwalk in question. Visual inspections, 

greasing, and other lubrication of the conveyor is performed from above the 

platform above the area in question. Any cleanup or maintenance work is performed while the conveyor is shut down or locked out, and company procedures 

dictate that when anyone is required to descend the ladder to reach the work 

platform adjacent to the underside of the conveyor, someone is dispatched to 

the area in advance to clean up the area. Mr. Lucas also indicated that the 

only time anyone has any occasion to descend the ladder and cross the catwalk 

is when there is a major break down of the conveyor or when the conveyor boot 

pulley is changed out, and that while the pulley has been changed in the last 

year or two, he could not remember the last time anyone had occasion to be in 

the catwalk area and he personally has not been there in the last 4 years. 

Petitioner's conclusions at pages 6 and 7 of its brief that the catwalk 

was used on a regular basis to gain access to the work platform to perform 

maintenance on the takeup pulley is unsupported by any credible testimony of 

record. Having walked the entire length of the gallery in question with the 

parties during the site visit, including climbing down the ladder which was 

protected by a chain for the purpose of viewing the catwalk in question, it 

seems clear to me, and I conclude that the area cited is not a regularly 

used p~ssage, walk, or way regularly used and designated for persons to go 

from one place to another in the mine. 

Section 56.11-1 requires that a safe means of access be provided and 

maintained to all working places. The phrase "working place" is defined by 

section 56.2 as "any place in or about a mine where work is being performed." 

3325 
The term "travelway" is defined as "a passage, walk or way regularly used and 

designated for persons to go from one place to another." Petitioner's suggestion that the phrase "travelway" is somehow part of the specific safety 

standard cited in this case is rejected. The term is simply used as a 

heading under which are found specific standards, including requirements for 

painting ladders. 

After review and consideration of all of the evidence and testimony 

adduced in this case, I conclude that in order to establish a violation of 

section 56.11-1, petitioner must establish by a preponderance of the evidence 

that the catwalk and platform area beneath the gallery conveyor was in fact a 

working place as that term is defined by section 56.2. In short, petitioner 

must establish that work was taking place at the time the conditions were 

observed. Here, Inspector Pappas conceded that no work was taking place and 

he mentioned not one shred of evidence that he observed any indication of 

recent or ongoing maintenance or other work being performed along the catwalk or platform area which he cited. Under the circumstances, I conclude 

and find that petitioner has failed to establish a violation of section 

56.11-1, and the citation is VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, IT IS ORDERED 

that Citation Nos. 368786 and 368787, August 2, 1978, for alleged violations 

of 30 C.F.R. § 56.14-1 (Docket No. VINC 79-100-PM), be VACATED; and that 

Citation No. 368912, March 21, 1979, citing an alleged violation of,30 C.F.R. 

§ 56.11-1, (Docket No. LAKE 79-217-M), also be VACATED. 

\ 

Distribution: 

pt._,,,~a~~ &,eorge ~Oiitrl{ Administrative Law Judge 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of Labor, 

881 Federal Office Building, 1240 E. Ninth St., Cleveland, OH 44199 

(Certified Mail) 

William C. H. Ramage, Stephen D. Hedlund, Esqs., Harrington, Rusley, 

& Smith, 1200 Mahoning Bank Building, Youngstown, OH 44502 

(Certified Mail) 

J. Mulichak, Manager, Safety & Personnel, The Standard Slag, Company, 

1200 Stambaugh Building, Youngstown, OH 44501 (Certified Mail) 

3326 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

- SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

G & M COAL COMP ANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 ·9 198()' 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. SE 79-128 

A.O. No. 40-02419-03002 

No. 1 Wartburg Mine 

DECISION 

Appearances: George Drumming, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for 

the petitioner; 

Bill Marshall, .EE£_~, Harriman, Tennessee, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil penalties 

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

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), charging 

the respondent with two alleged violations of certain mandatory. safety standards found in Part 75 and Part 77, Title 30, Code of Federal Regulations. 

Respondent filed a timely answer and notice of contest and a hearing was convened at Knoxville, Tennessee, on October 29, 1980. The parties waived the 

filing of posthearing proposed findings and conclusions, were afforded an 

opportunity to present arguments in support of their respective positions on 

the record, and agreed to a bench decision which is herein reduced to writing 

as required by Commission Rule 65, 29 C.F.R. § 2700.65. 

Issues 

The principal issues presented in this proceeding are (1) whether respon-

·ient has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalties filed in this proceeding, and, if so, (2) the appropriate civil penalties that should be 

assessed against the respondent for the alleged violations based upon the 

3327 
criteria set forth in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to tlie size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

l. The Federal ~1ine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

J. CoCT~ission Rules, 29 C.F.R. § 2700.1 ~seq. 

Stipulations 

The parties agreed to the following (Tr. 7-11): 

1. Respondent's No. 1 Wartburg Hine is subject to the Act, and I have 

jurisdiction to hear and decide this case. 

2. Respondent is a small operator who was operating the subject mine at 

the ti~e the citations in this case were issued. 

J. Respondent's history of prior violations is not excessive. 

4. MSHA mine inspectors Harrison R. Boston and Arthur C. Grant are duly 

authorized representatives of the Secretary of Labor and issued the citations 

in question upon inspection of respondent's mine. 

Findings and Conclusions 

fact of Violations 

Citation No. 140915, Hay 17, 1978, 30 C.F.R. § 77.1301, states as follows: 

"Detonators and explosives were not stored in magazines in that explosives and 

detonators were being stored in the temporary mine office." 

Section 77 .130l(a) requires tht detonators and explosives be s'tored - separately in magazines. MSHA inspector Harrison R. Boston confirmed that he 

issued the citation after inspecting the mine and finding detonators and explosives stored and stacked together in a small building or shed approximately 

10 feet by 10 feet which also served as an office. He discussed the matter 

3323 
with mine owner Bill Marshall who advised him he would move the explosives 

and store them as required by the standard. 

the situation posed any imminent danger and 

should have known about the requirements of 

that the respondent is a small operator and 

possibiiity of any explosion. 

Mr. Boston did not believe that 

he believed that the respondent 

section 77.130l(a). He confirmed 

that there was no immediate 

Mine operator Bill Marshall testified that the explosives and detonators 

had just been delivered to the mine and placed in the office temporarily until 

he could store them properly. He did not believe that the standard required 

a magazine since the mine had not begun any coal production and he was simply 

in the process of reviewing the feasibility of starting up production. 

I conc!'iide and find that the petitioner has established a violation by 

a preponderance of the evidence and the citation is AFFIRMED. 

Citation No. 0743769, May 2, 1979, 30 C.F.R. § 75.200, states that "[t]he 

operator's approved roof control plan was not complied with on 001 section in 

that an approved calibrated torque wrench was not provided for the roof bolting 

machine."· 

.HSHA inspector Arthur c. Grant confirmed that he issued the citation in 

question after conducting an inspection of the mine and determining that a 

torque wrench was not available to torque the roof bolts as they were 

installed into the mine roof. Respondent's approved roof-control plan (Exh. 

P-4) at page 6, paragraph 11, provides that ''[a]n approved calibrated torque 

wrench that will indicate the actual torque on the roof bolts by a direct 

reading shall be provided on each roof bolting machine." · 

Mr. Grant stated that he discussed the matter with Mr. Marshall and he 

obtained a wrench and had it available the next day. Mr. Grant also indicated 

that the roof was in good condition and safe and he confirmed that the mine 

had only been in operation for a short time and that all of the required roof 

bolts had been installed. He also confirmed that the roof-bolting machine 

was capable of making roof-bolt torque adjustments but that a wrench was 

necessary to insure that proper torque was in fact accomplished. If this is 

not done, the bolts will not hold and a roof fall could result. Mr. Marshall 

indicated that torque wrenches were available at the mine but that he had 

theft problems and people were stealing his equipment. 

I conclude and find that petitioner has established a violation of section 75.200 by a preponderance of the evidence. Failure to follow the roofcontrol plan requirement that a torque wrench be provided constitutes a 

violation of the cited standard. Accordingly, the citation is AFFIRMED. 

Size of Business and Effect of Assessed Penalties on Respondent's Ability to 

Continue in Business 

lbe evidence establishes that at the time the citations were issued 

respondent operated a very small mining venture employing three or four people 

3329 
at most, including the mine owner, Mr. Bill Marshall. Petitioner asserted 

that coal production was some 6,000 tons annually, but Mr. Marshall stated 

that at most, production was only 4,600 tons. In addition, the record establishes that Mr. Marshall is no longer in the mining business, that the mine 

is not in operation, that one of the two working sections has been permanently 

sealed, and for the approximate period from May 22, 1978, to March 1, 1979, 

the mine was not in production. 

The parties agreed that the respondent was a small operator and that 

since he no longer is in business, the question of his ability to remain in 

business is moot. As for respondent's ability to pay the penalties assessed 

by me in this case, I have considered respondent's assertion that he is in 

debt, but absent any documentation on his part that he is unable to pay the 

penalties assessed by me in this matter, I cannot conclude that the penalties 

are unreasonable. 

Good Faith Compliance 

The record establishes that both conditions cited by the inspectors were 

abated in good faith and that respondent exercised rapid compliance in obtaining the required roof-bolt torque wrench the day after the citation issued, 

1 day earlier than the time fixed for abatement by the inspector. As for 

the storage of explosives and detonators, Inspector Grant confirmed that they 

were subsequently stored in an approved storage area and subsequently removed 

from mine property. 

Negligence 

The inspectors testified that respondent should have been aware of the 

fact that the explosives and detonators were not properly stored in a manner 

as required by the cited standard, and that respondent did not have a torque 

wrench at the time the inspector observed the conditions cited. I conclude 

and find that the violations resulted from the respondent's failure to exercise reasonable care to prevent the conditions cited and that this ~onstitutes ordinary negligence. 

Gravity 

I conclude that the particular facts and circumstances which prevailed at 

the time tl1e citations issued support a finding that both violations were nonserious, and that the inspector conceded that this was the case. The roof 

conditions were good, all required roof bolts were in place, the roof-bolting 

machine was engineered to pretorque the bolts as they were installed, and the 

inspector testified that he sounded and inspected the roof and found that it 

was safe. 

With regard to the explosives and detonators citation, the facts establish that they were permissible explosives and were stored on the surface 

some 100 feet from the entrance to the underground mine, that no mining was 

taking place, ·and Inspector Boston testified that when he first observed the 

3330 
1 

I 

j 

I 

I 

I I 

I 

condition cited he could find no one at the mine. He conceded that in the 

circumstances presented, the probability of any explosion occurring was 

~likely, and the evidence establishes that the explosives had been present 

:or a short period of time and were possibly delivered to the mine the day 

~fore the citation actually issued. 

hlstory of Prior Violations 

Respondent's history of prior violations as reflected in MSHA's computer 

printout (Exh. P-4) shows that respondent made payment in the amount of $96 

for four prior assessed violations, none of which are repeat violations. I 

cannot conclude that respondent's history of prior violations is such as to 

~rrant an~_increase in the civil penalties assessed in this case. Further, 

I have taken into consideration the testimony by Inspector Grant that the 

respondent was a responsible operator who attempted in good faith to comply 

;;ith the mandatory safety requirements of the Act. 

Penalty Assessment 

In response to a show-cause order issued by Chief Judge Broderick on 

:lay 15, 1980, for failure to file an answer to the petitioner's proposals 

ior assessment of civil penalties, respondent stated that all assessed penalties for the period May 1978, through December 1979, had been paid and 

that the No. 1 Mine was closed in December 1979, and all mine openings were 

sealed. A copy of respondent's response was furnished to the petitioner 

as part of my order of June 6, 1980, in which I ruled that the response 

satisfied the show-cause order. Since no further information was forthcoming regarding respondent's claims that the assessments had been paid, 

the case was docketed for hearing. 

Respondent could not substantiate his claims that he had paid the 

initial assessments made by MSHA for the two citations in question, and the 

computer printout reflects that they have not been paid. However, the parties were directed to further review their records in this regard and to 

file any evidence of payment with me. No such evidence has been forthcoming. 

After careful review and consideration of the evidence adduced in this 

proceeding, including the six statutory criteria found in section llO(i) of 

the Act, and in particular respondent's prior history of violations, good 

faith compliance, my gravity findings and the fact that respondent is no 

longer in the mining business, I conclude that the following civil penalty 

assessments are reasonable considering the particular circumstances of this 

case: 

Citation No. 

140915 

0743769 

Date 

05/17/78 

05/02/79 

30 C.F.R. Section 

77.1301 

75.200 

3·331 

Assessment 

$15 

10 

$25 
ORDER 

Respondent IS ORDERED to pay civil penalties totaling $25 within thirty 

(30) days of the date of this decision for the two citations in question, 

and upon receipt of payment by MSHA, this matter is DISMISSED. 

~d.~ ,-c;;~;~;~~· Kou(rf~~ Administrative Law Judge 

Distribution: 

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Hail) 

Bill Marshall, G & M Coal Company, Route 4, Harriman, TN 37748 

(Certified Nail) 

-

3332 
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 HEAL TH 

ADHINIS1:RA'rION (MSHA) , 

Petitioner 

v. 

FIRE CREEK COAL COMP ANY 

OF TENNESSEE, 

Respondent 

NOV 1 9 1980 

Civil Penalty Proceedings 

Docket No. SE 79-24 

A.O. No. 40-01612-03010 

Docket No. SE 79-40 

A.O. No. 40-01621-03011 

Docket No. SE 79-68 

A.O. No. 40-01612-03012 

Fire Creek No. 1 Mine 

DECISIONS APPROVING SETTLEMENTS 

Appearances: George Drununing, Jr., Attorney, U.S. Department of 

Labor, Nashville, Tennessee, for the petitioner. 

Before: Judge Koutras 

Statement of the proceedings 

These civil penalty proceedings were initiated by the petitioner 

against the respondent through the filing of proposals for assessment 

of civil penalties pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking civil penalty 

assessments for 11 alleged violations of certain.mandatory safety 

standards promulgated pursuant to the Act. 

Respondent filed timely answers and the cases were scheduled for 

hearing in Knoxville, Tennessee, October 30, 1980. However, in view 

of a proposed settlement made by the parties, petitioner was permitted 

to submit its arguments on the record concerning the proposed settlement 

disposition of the dockets, a bench decision was issued, and it is herein 

finalized in writing as required by the Conunission's rules. The citations, 

initial assessments, and the proposed settlement amounts are as follows: 

DJcket No. SE 79-24 

Citation No. Date 30 CFR Section Assessment Settlement 

131663 11/17/78 75.1100-2(F) $ 140 $ 52 

3333 
Docket No. SE 79-40 

Citation No. Date 30 CFR Section Assessment Settlement 

0743707 1/25/79 75.1100-2(e) $ 90 $ 33 

0743708 1/25/79 75.807 98 36 

0743709 1/25/79 75.200 98 36 

0743710 1/25/79 75.200 78 29 

0743711 1/26/79 75.1714 114 42 

0743712 1/26/79 75.304 180 67 

0743713 1/26/79 75.200 114 42 

0743714 1/26/79 75.1102 98 36 

$ 870 $ 321 

Docket No. SE 79-68 

Citation No. Date 30 CFR Section Assessment Settlement 

0743732 2/27/79 75.302(a) $ 140 $ 52 

0743733 2/27 /79 75.200 72 27 

$ 212 $ 79 

Discussion 

In support of the proposed settlement negotiated by the parties 

petitioner has submitted information concerning the six statutory criteria 

found in section llO(i) of the Act. This information reflects that 

respondent is a small operator, has no excessive history of prior 

violations, abated all of the citations in question in good faith, and 

exhibited ordinary negligence in connection with the conditions or 

practices cited as violations. Further, while all of the citations 

ranged from serious to moderately serious, petitioner points out that 

none of them resulted in any injuries to miners. 

In a prior decision issued by me on April 5, 1979, in MSHA v. 

Fire Creek Coal Company, Dockets BARB 79-3-P, BARB 79-4-P, and BARB 

79-59-P, concerning a total of 2 7 citations issued during March and April, 

1978, I found that respondent presented credible evidence and documentatic~ 

concerning the financial condition of the respondent's small company. 

I found that the initial assessments made by MSHA, if affirmed, would 

effectively put the respondent out of business. In the circumstances, 

the financial condition of the respondent was considered in my assessment 

of civil penalties totaling $2,000 for the citations in question. 

In the instant proceedings, respondent has reasserted the rinancial 

and economic conditions of its company, states that it is on the verge 

of bankruptcy, indicates that the mine is shut down and is not producing, 

and that there is little or no income from the company's mining venture. 

3334 
Petitioner's counsel confirmed the fact that the Fire Creek No. 1 

oine has been closed since July 1979. Counsel also agreed that respondent's 

financial condition is such that full payment of the civil penalties 

initially assessed by MSHA for the citations in question in these 

?roceedings would in fact adversely affect respondent's stated intention 

~f attempting at some time in the future to re-open the mine and again 

engage in the business of mining coal. Further, petitioner asserted 

that respondent's adverse financial condition stems from the fact that 

respondent's mining operation was conducted on a contract basis with a 

contract miner who purportedly absconded with the company assets. 

Conclusion 

After -careful review and consideration of the pleadings, arguments, 

~:id submission in support of the petitioner's motion to approve the 

?roposed settlement of this case, I conclude and find that the proposed 

settlement disposition is reasonable and in the public interest. Accordingly, 

pursuant to 20 C.F.R. § 2700.30, the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement 

~~ounts shown above in satisfaction of the citations in question 

·•ithin thirty (30) days of the date of this decision and order, and 

~pon receipt of payment by the petitioner, this proceeding is dismissed. 

;?,.! ,, I/ v· 

Y/,/}f"'1jl George J'i Koutras !{ /(tlCC-~ .. ~ 

Administrative Law Judge 

Jistribution: 

George Drumming, Jr., Esq., U.S. Department of Labor, Office of the 

Solicitor, Rm. 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

~:ichael R. Kizerian, c/o Fire Creek Coal Co., 699 E. South Temple, 

Rm. 200, Salt Lake City, UT 84102 (Certified Mail) 

3335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

DKT COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 o 1980 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 79-349 

A/O No. 15-11001-03005 

No. 3 Mine 

DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for Petitioner; 

Roy Darrell Coleman, Co-Owner, DKT Coal Company, 

Elkhorn City, Kentucky, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On October 15,, 1979, the Mine Safety and Health Administration (Petitioner) filed a proposal for a penalty in the above-captioned case pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et~· (1978) (1977 Mine Act), alleging five violations of various 

provisions of the Code of Federal Regulations as set forth in citations issued 

pursuant to section 104(a) of the 1'}77 Hine Act. DKT Coal Company (Respondent) 

filed an answer on October 31, 1979. 

The hearing was held on July 16, 1980, in Pikeville, Kentucky. Representatives of both parties were present and participated. An oral motion was 

made requesting approval of settlement as relates to Citation No. 706588, and 

evidence was presented as relates to the four remaining citations. 

The parties waived the filing of posthearing briefs and proposed -findings 

of fact and conclusions of law. 

II. Violat~ons Charged 

Citation No. 706554, February 26, 1979' 30 C.F.R. § 75.523-1 

Citation No. 706555, February 26' 1979, 30 C.F.R. § 75.316 

Citation No. 706556, February 26, 1979, 30 C.F.R. § 75~ 1722 

Citation No. 706558, February 27' 1979, 30 C.F.R. § 75.316 

Citation No. 706559, February 27, 1979, 30 C.F.R. § 75.400 

3336 
111. Witness and Exhibits 

A. Witness 

Petitioner called Federal mine inspector Franklin Goble as a witness. 

Respondent did not call any witnesses. 

B. Exhibits 

1. Petitioner introduced the following exhibits in evidence: 

M-1 is q copy of Citation No. 706554, February 26, 1979, 30 C.F.R. 

75.523-1:-and a copy of the termination thereof. 

M-2 is a copy of the inspector's statement pertaining to M-1. 

i'-1-3 is a copy of Citation No. 706555, February 26, 1979, 30 C.F.R. 

§ 75.316, and a copy of the termination thereof. 

H-4 is a copy of the approved ventilation system and methane and dust 

control plan for the 001-0 working section of Respondent's No. 3 Hine, in 

effect on February 26, 1979. 

H--5 is a copy of the inspector's statement pertaining to M-3. 

H-6 is a copy of Citation No. 706.':>56, February 26, 1979, 3U C.F.R. 

§ 75.1722, and a copy of the termination thereof. 

M-7 is a copy of the inspector's statement pertaining to H-6. 

M-8 is a copy of Citation No. 706558, February 27, 1979, 30 C.F.R. 

§ 75.316, and a copy of the termination thereof. 

M-9 is a copy of the inspector's statement pertaining to M-8. 

M-10 is a copy of Citation No. 706559, February 27, 1979, 30 C.F.R. 

9 75.400, and a copy of the termination thereof. 

M-11 is a copy of the inspector's statement pertaining to M-10. 

2. Respondent did not introduce any exhibits in evidence. 

lV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) 

<lid a violation of a mandatory health or safety standard 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 
2. Citation No. 706555, February 26, 1979, 30 C.F.R. § 75.316 

Citation No. 706555 was issued at Respondent's No. 3 Mine by Inspector 

Goble at approximately 12:30 p.m. on February 26, 1979. The citation alleges 

a violation of mandatory safety standard 30 C.F.R. § 75.316 in that: "The 

approved ventilation system, dust and methane control plan was not being 

complied with in that the air ventilation was not being controlled on the 

001-0 section by means of check curtains and the wing curtain was 30 feet ba(.: 

from the face where coal was being mined" (Exh. M-3, Tr. 29-30). The cited 

mandatory safety standard provides as follows: 

A ventilation system and methane and dust control plan 

and revisions thereof suitable to the conditions and the 

mining 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. 

The portion of the regulation at issue in the instant case requires 

the mine operator to adopt a ventilation system and methane and dust control 

plan approved by the Secretary. The mine operator violates 30 C.F.R. 

§ 75.316 by failing to comply with the approved plan. Peabody Coal Company, 

8 IBMA 121, 84 I.D. 469, 1977-1978 OSHD par. 22,111 (1977); Zeigler Coal 

Company, 4 IBMA 30, 82 I.D. 36, 1974-1975 OSHD par. 19,237 (1975), aff 'd. 

sub nom. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). 

1be inspector's testimony reveals that the citation alleges the existence of 

two separate conditions that fail to comply with two separate provisions 

of the approved plan. 

As relates to the first condition, the inspector's testimony establishes 

that the wing curtain terminated at a point 30 feet outby the face (Tr. 2Y30, 38). The continuous miner was cutting coal from the face mentioned in 

the citation when the inspector observed the condition (Tr. 40-41). The 

applicable provision of the approved plan required the curtain or other 

approved device to "be installed and maintained to within ten feet of the 

point of deepest penetration where coal is being cut, drilled, mined, or 

loaded unless otherwise specified by the District Manager" (Exh. M-4, P• 4; 

Tr. 31-32). The district manager had not specified otherwise, and no other 

approved devices were in use at the time (Tr. 32). Accordingly, it is found 

that the wing curtain terminated at a point 30 feet outby the face where 

coal was being mined, and that such condition violated the applicable 

provision of the plan. .-

U1e second condition cited is the failure to use check curtains to 

control the ventilation. In fact, Respondent was not using any check 

3340 
curtains (Tr. 40), and it was the inspector's opinion that the failure 

to use such curtains violated the provisions of the approved plan. The 

inspector's testimony reveals that check curtains are those curtains used 

outby the last open crosscut to maintain proper air flow from an intake 

to a return (Tr. 38-40), and that a map or sketch should have been attached 

to the approved plan designating their location (Tr. 38-40). Such map or 

sketch is not attached to Exhibit M-4. Without the map or sketch, the 

inspector was unable to point to a provision in the approved plan specifically requiring the use of check curtains outby the last open crosscut 

as a ventilation control device. Accordingly, it is found that Petitioner 

has failed to establish by a preponderance of the evidence that the absence 

of check curtains violated the approved plan. 

In v~'of the foregoing, the discussion of the statutory penalty 

assessment criteria will be confined to the condition constituting a 

proved violation of the approved plan. 

Respondent knew or should have known that the wing curtain terminated 

at a point 30 feet outby the face. Such actual or constructive knowledge 

is attributable to the presence of Mr. James Coleman, the foreman, in the 

area (Tr. 33). Accordingly, it is found that Respondent demonstrated 

ordinary negligence. 

1he occurrence of the event against which the standard is directed 

was.probable. The possible events included a methane or dust ignition, or 

inhalation of the dust. Two persons would have been exposed to injuries 

resulting in lost work days to restricted duty (Exh. M-5, Tr. 34). Accordingly, it is found that the violation was accompanied by moderate gravity. 

3. Citation No. 7U6556, February 26, 1979, 30 C.F.R. § 75.1722 

lb.is citation was issued at Respondent's No. 3 Mine by Inspector Goble 

at approximately l p.m. on February 26, 1979. The citation alleges a violation of mandatory safety standard 30 C.F.R. § 75.1722 in that the blower 

motor belts on the Lee Norris roof bolter (Serial No. 220092) were not 

properly guarded (£xh. M-6). The cited mandatory safety standard provides, 

in pertinent part, as follows: "(a) 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 inspector's testimony reveals that the blower motor belts on the 

machine were not properly guarded, and that such belts were exposed moving 

machine parts which could have been contacted by, and which could have 

caused injury to, the operator of the machine. The blower motor and belts 

were located inside a 6- to 12-inch opening in the structure of the machine. 

The opening was located near the seat on the operator's side. While tramming_ 

the machine, the machine operator would have been within b to 12 inches from 

the pulley and belts. A hand, an arm or clothing could have achieved physical 

contact with, and could have been caught by, the belts (Tr. 41-42). Yet, no 

3341 
E. Size of the Ope,rator 's Business 

The parties stipulated that the No. 3 Mine produced approximately 

40,000 tons of coal in 1979, and that the controlling company produced 

approximately 112,000 tons of coal in 1979 (Tr. 8-9). Accordingly, it is 

found that Respondent is a small operator. 

F. Effect of a Civil Penalty on Respondent's Ability to Remain 

in Business 

No evidence was presented establishing that the assessment of civil 

penalties will affect Respondent's ability to remain in business. Accordingly, it is found that civil penalties otherwise properly assessed in 

this proceeding will not impair Respondent's ability to remain in business. 

See, Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 

(1972). 

VI. Motion to Approve Settlement 

The proposed settlement is identified as follows: 

Citation No. Date 

706558 2/27/79 

30 C.F.R. 

Standard 

75.316 

Assessment 

$ 98 

Settlement 

$ 98 

The citation alleges a failure to comply with the approved ventilation 

system and methane and dust control plan in that the 001-0 section had been 

advanced seven crosscuts inby permanent stoppings. The approved plan 

required permanent stoppings up to, and including, the third crosscut 

(Tr. 12, Exh. M-8). 

Information as to the six statutory criteria contained in section 110 of 

the Act has been submitted, which includes a copy of the inspector's statement describing the violation in terms of negligence, gravity and good faith 

(Exh. M-9). This information has provided a full disclosure of the nature of 

the settlement and the basis for the original determination. Thus, the 

parties have complied with the intent of the law that settlement be a matter 

of public record. 

lne motion to approve settlement was set forth on the record orally, 

and states as follows: 

JUDGE COOK: This Hearing will come to order. 

Now, did you Mr. Stewart, have a chance to discuss 

with Mr. Coleman a settlement? 

MR. STEWART: Yes, Your Honor. My understanding we 

agreed to settle the contested citation #706-558 in that 

as previously stated, DKT Coal Company admits the facts 

3344 

-
of violation in that citation. After discussing the 

matter with Mr. Coleman move to approve the settlement, 

approve the assessment in the amount of Ninety-eight 

($98.00) Dollars which was the original penalty. 

JUDGE COOK: Is that agreeable, Mr. Coleman? 

MR. COLEMAN: It wasn't agreeable but we settled 

on it. 

(Tr. 64-65) • 

After-according the information submitted due consideration, it has 

been found to support the proposed settlement. It therefore appears that 

a disposition approving the settlement will adequately protect the public 

interest. An order will be issued approving the proposed settlement. 

VII. Conclusions of Law 

1. DKT Coal Company and its No. 3 Mine have been subject to the 

provisions of the 1977 Hine Act at all times relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. Federal mine inspector Franklin Goble was a duly authorized 

representative of the Secretary of Labor at all. times relevant to this 

proceeding. 

4. The violations charged in Citation Nos. 706554, 706556, 706558, and 

706559 are found to have occurred as alleged. One of the violations charged 

in Citation No. 706555 is found to have occurred as alieged. 

5. All of the conclusions of law set forth previously in this 

decision are reaffirmed and incorporated herein. 

\'Ill. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of civil 

penalties is warranted as follows: 

30 C.F.R. 

Citation No. Date Standard Penalt~ 

706554 2/26/79 75.523-1 $ 70.00 

706555 2/26/79 75.3lb 45.00 

706556 2/26/79 75.1722 6.5.00 

706558 2/27 /79 75.316 98.00 (settlement) 

706559 2/27 /79 75.400 150.00 

$428.00 

3345 
ORDER 

The proposed settlement outlined in Part VI, supra, is APPROVED. 

Respondent is ORDERED to pay civil penalties in the total amount of 

$428 within 30 days of the date of this decision. 

Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Roy Darrell Coleman, Co-Owner, DKT Coal Company, Route 1, Box 1528, 

Elkhorn City, KY 41522 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

-

3346 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS .CHURCH, VIRGINIA 22041 

NOV 2 0 1980 

HELVETIA COAL COMPANY, Application for Review .. 

Applicant 

v. Docket No. PENN 80-143-R 

SECRETARY OF LABOR, Lucerne No. 6 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Appearances: 

Before: 

Respondent 

DECISION 

W·. Joseph Engler, Jr., Esq., Vice President and General 

Counsel, Rochester and Pittsburgh Coal Co., Indiana, 

Pennsylvania, for Applicant; 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Re~pondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by Helvetia Coal Company (hereinafter 

Helvetia) under section 107(e) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 817(e) (hereinafter the Act), to vacate an order of withdrawal due to imminent danger issue.cl by a Federal mine inspector employed 

by the Mine Safety and Health Administration (hereinafter MSHA) pursuant 

to section 107(a) of the Act. The parties filed prehearing statements and 

the case was heard in Indiana, Pennsylvania, on September 23, 1980. 

This matter involves the issue of whether miners were exposed to imminent danger due to the close proximity between a bare energized conductor 

and the metal frame of a battery charger which was allegedly improperly 

grounded. 

ISSUE 

Whether the issuance of the order of withdrawal due to imminent danger 

was proper. 

3347 
APPLICABLE LAW 

Section 107(a) of the Act, 30 u.s.c. § 817(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of 

the area of such mine throughout which the danger exists, 

and issue an order requiring the operator of such mine to 

cause all persons, except those referred to in section 

104(c) to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of 

the Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent danger no 

longer exist. The issuance of an order under this subsection 

shall not preclude the issuance of a citation under section 

104 or the proposing of a penalty under section 110. 

Section 3(j) of the Act, 30 U.S.C. § 802(j), states: "'imminent danger' 

means the existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 

STIPULATIONS 

1. Helvetia is the owner and operator of the subject mine. 

2. The operator and the mine are subject to the Act. 

3. The Administrative Law Judge has jurisdiction over the parties 

and the subject matter of this proceeding. 

4. The inspector who issued the order in question was a duly authorized 

representative of the Secretary of Labor. 

5. Copies of the order are authentic and were properly served upon 

Helvetia. 

FINDINGS OF FACT 

I find from the preponderance of the evidence of record the facts as 

follows: 

1. Lucerne No. 6 Mine is owned and operated by Helvetia. ~ . . 

2. William R. Collingsworth, who issued the order in controversy, was 

an electrical inspector employed by MSHA and a duly authorized representative 

of the Secretary of Labor at all times pertinent herein. 

3348 
3. On January 9, 1980, Inspector Collingsworth performed a regular 

inspection of the Lucerne No. 6 Mine and issued Order No. 0818207 pursuant 

co section 107(a) of the Act. 

4. The order in question was issued on a battery charger because of 

the existence of the following conditions: 

(a) The ground wire was inadequately secured to the frame of the 

battery charger; 

(b) A bare energized phase conductor was lying loose inside the 

battery charger in close proximity to the metal frame; and 

(c) The - bare energized phase conductor in the 480-volt battery charger 

had a potential of 300 volts. 

s. The battery charger in question was located in a narrow travelway 

where miners were likely to come in contact with it. 

6. It was likely that the bare energized conductor would touch the 

frame of the battery charger at the same time a miner was touching the frame 

of the battery charger with the result that the miner would be exposed to 

100 to 300 volts. 

7. A person who is exposed to 100 to 300 volts could be reasonably 

expected to suffer death or serious physical injury. 

DISCUSSION 

Helvetia concedes that the ground wire of the battery charger was 

poorly connected and that there was no ground monitor on this equipment. 

Helvetia did not dispute the fact that a bare energized conductor in a 

480-volt battery charger was in close proximity to the frame of this unit. 

However, Helvetia contends that the imminent danger order of withdrawal 

was improper in this case for the following reasons: (1) the alleged hazard 

was not discovered by the inspector until the battery charger had been 

de-energized after the issuance of a citation for improper grounding of the 

unit and the normal practice of abatement of this citation would be to keep 

the battery charger de-energized until the condition had been corrected; and 

(2) the occurrence of the hazard was only speculative because the battery 

charger had a sufficient ground which would open the circuit in the unlikely 

event of a simultaneous touching of the frame by a miner and the bare energized phase conductor. 

Helvetia's first contention that the discovery of the bare energized 

phase conductor in close proximity to the battery charger frame cannot 

constitute an imminent danger because the battery charger was de-energized 

at that time is rejected. In a case involving an imminent danger order, the 

Fourth Circuit Court of Appeals stated: "[t]he Secretary determined, and we 

think correctly, that 'an imminent danger exists when the cQndition or practice observed could reasonably be expected to cause death or serious physical 

3349 
harm· to a mL1er if normal mining operations were permitted to proceed in the 

area before the dangerous condition is eliminated.'" Eastern Associated Coal 

Corporation v. Interior Board of Mine Operations Appeal, 491, F.2d 277, 278 

(4th Cir. 1974), aff'g. Eastern Associated Coal Corporation, 2 IBMA 128 

(1973). See also Old Ben Coal Corporation v. Interior Board of Mine Operations 

Appeals, 523 F.2d 25 (7th Cir. 1975). 

As the above cases indicate, the test is whether the condition could 

reasonably be expected to cause death or serious physical harm to a miner 

if normal mining operations were permitted to proceed in the area before the 

dangerous condition was eliminated. The imminently dangerous condition cannot 

be divorced from normal work activity. Under normal mining operations; the 

battery charger in question would have been used in the condition discovered 

by the inspector. The previously discovered grounding violation in the battery 

charger was the subject of a citation issued under section 104 of the Act rather 

than a withdrawal order of that equipment. The prior issuance of a citation 

is irrelevant in determining whether an imminent danger existed. 

Helvetia's second contention raises the issue of the likelihood of the 

occurrence of death or serious physical harm to a miner. The definition of 

the term "imminent danger" is identical in the 1969 arid 1977 Acts. In interpretating the 1969 Act, the Interior Board of Mine Operations Appeals 

required that before an imminent danger could be found to exist, the evidence must establish that "it is at least just as probable as not that the 

feared accident or disaster would occur before elimination of the danger." 

Freeman Coal Mining Corp., 2 IBMA 197, 212 (1973). Thereafter, this "as 

probable as not" standard was approved by the Fourth and Seventh Circuit 

Courts of Appeals. Eastern Associated Coal Company v. IBMA, 491 F.2d 277 

(4th Cir. 1974); Freeman Coal Mining Co. v. IBMA, 504 F-:2ci""741, 745 (7th Cir. 

1975); and Old Ben Coal Corp. v. IBMA, 523 F-:2ci""25 (7th Cir. 1975). However, 

in enacting the 1977 Act, the Senate Committee on Human Resources stated: 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent danger requires an examination of the potential of the risk to 

cause serious physical harm at any time. It is the Committee's view that the authority under this section is essential. 

to the protection of miners and should be construed expansively by inspectors and the commission. 

Leg. Hist. of the Federal Mine Safety & Health Act of 1977, 95th Cong., 

1st Sess. (hereinafter Leg. Hist. 1977 Act) at 38. 

Earlier this year, the Federal Mine Safety and Health Review Commis.sion 

announced that: i:we * * * do not adopt or in any way approve the 'as 'probable 

as not' standard * * *· With respect to cases that arise under the [1977 Act], 

we will examine anew the question of what conditions or practices constitute 

an imminent danger." Pittsburg & Midway Coal Mining Co. v. MSHA, IBMA 76-57 

(April 21, 1980). 

3350 
Hence, in cases involving imminent danger orders under the 1977 Act, 

there is no longer a requirement that MSHA prove that "it is just as 

probable as not" that the accident or disaster would occur. In light of 

the legislative history of the 1977 Act, it is doubtful that any quantitative test can be applied to determine whether an ill)Illinent danger existed. 

Rather, each case must be evaluated in the light of the risk of serious 

physical harm or death to which the affected miners are exposed under the 

conditions existing at the time the order was issued. 

In the instant case, Helvetia is in no position to challenge the 

conditions observed by Inspector Collingsworth since it elected not to 

designate a management escort for this inspection or to call the miners' 

representati~e, who accompanied the inspector, as a witness. Rather, 

Helvetia's'assistant chief engineer, James G. Wiley, testified that the 

conclusions drawn by the inspector were erroneous. Mr. Wiley stated that 

the bare energized conductor could not have been touching the batterycharger frame at the time the inspector first saw the unit because such 

a touching would have energized a ground-fault trip relay which would 

have tripped the circuit breaker at the power center. He admitted that 

a person who came in contact with the battery charger at a time when the 

bare energized conductor was touching the frame would receive an electrical 

shock although he stated that this would not necessarily be a fatal shock. 

He stated that if the ground wire on the battery charger was efficient at 

the time of such a simultaneous touching of the frame by a person and the 

conductor, the circuit breaker would de-energize the circuit instantaneously 

and no more than 100 volts would be on the frame. However, he also conceded 

that if something was wrong with the grounding system, the voltage on the 

frame could exceed 100. 

Inspector Collingsworth testified that, based upon his experience and 

training as an electrical inspector, the bare energized power conductor with 

a 300-volt potential in close proximity to the metal frame of the battery 

charger which had an improperly connected ground wire constituted an imminent 

danger to people walking in the travelway who could be expected to come in 

contact with the battery charger. He stated that it was likely that such 

persons would touch the battery charger because the top of the battery 

charger was clean, indicating that people did touch it. Even if the bare 

conductor was not touching the frame at the time of the order, Inspector 

Collingsworth stated that it could come in contact with the frame by the 

vibration of the transformer or a person jarring the battery charger while 

passing it. Inspector Collingsworth's opinions concerning the existence of 

an imminent danger were corroborated by Michael Yenchek, an electrical 

engineer employed by MSHA. Mr. Yenchek stated that the ground wire wrapped 

around the metal screen on the face of the battery charger did not provide 

a reliable, solid connection. He further testified that even if the circuit 

breaker opened instantaneously, a person touching the frame of the battery 

charger would get enough exposure to an electrical current to kill him. He 

cited examples of persons who were fatally electrocuted by as little as 

100 volts. He agreed with Inspector Collingsworth that the condition of the 

battery charger as described by the inspector constituted an imminent danger. 

3351 
I conclude that Helvetia has failed to establish that the imminent 

danger order was improperly issued. Rather, the preponderance of the evidence 

establishes that there was a reasonable expectation that the combination of 

the improperly connected ground wire and the energized bare conductor in close 

proximity to the metal frame of the battery charger could cause death or 

serious physical harm to miners before it could be abated. This is particularly 

true because the battery charger was located in a narrow travelway where the 

evidence indicated that it would likely be touched by passing miners. Under 

these circumstances, section 107(a) of the Act authorizes the issuance of a 

withdrawal order to protect the miners. Helvetia's evidence concerning the 

adequacy of the circuit breaker system and the slight chance of a serious 

injury from this condition are rejected because they are less persuasive 

than the evidence presented by MSHA on these issues. Therefore, Helvetia's 

application for review is denied. 

CONCLUSIONS OF LAW 

1. I have jurisdiction over this matter pursuant to section 107 of the 

Act. 

2. The inspector properly issued the subject order of withdrawal pursuant 

to section 107(a) of the Act because an imminent danger existed in that there 

was a reasonable expectation that the condition of the battery charger which 

he found could cause death or serious physical harm before it could be abated. 

3. The application for review is denied. 

ORDER 

THEREFORE, IT IS ORDERED that the application for review is DENIED and 

the subject withdrawal order is AFFIRMED. 

Distribution by Certified Mail: 

James A. Laurenson, Judge :' I 

' .. ) 

W. Joseph Engler, Jr., Esq., Rochester & Pittsburgh Coal Company, 

R & P Coal Company Building, Indiana, PA 15701 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

3352 

-
FEDERAL MINE SAFETY AND HEAL TH 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 

NOV 2 O 1sao· 

Petitioner 

Civil Penalty Proceedings 

Docket No. BARB 78-705-P 

A/O No. 15-09816-03001 

BLACKJACK COAL COMPANY, INC., 

Respondent 

Docket No. BARB 79-185-P 

A/O No. 15-09816-03004 

Docket No. BARB 79-270-P 

A/O No. 15-09816-03005 

No. 1 Surface Mine 

Docket No. KENT 79-60 

A/O No. 15-11680-03001 

Docket No. KENT 79-204 

A/O No. 15-11680-03002 

No. 3 Surface Mine 

DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for Petitioner; 

Larry Cleveland, Esq., Frankfort, Kentucky, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

The Mine Safety and Health Administration (Petitioner) filed petitions 

for assessment of civil penalties in Docket Nos. BARB 78-705-P; BARB 79-185-P, 

BARB 79-270-P, KENT 79-60, and KENT 79-204, on September 25, 1978, December 20,' 

1978, January 31, 1979, June 18, 1979, and July 20, 1979, respectively. The 

petitions were filed pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1978) (1977 Mine Act), and 

allege a total of 24 violations of various provisions of the Code of Federal 

Regulations. Answers were filed by Blackjack Coal Company, Inc. (Respondent). 

335"3 
The parties stipulated that the cited violations occurred, and also 

entered into stipulations addressing five of the six statutory penalty 

assessment criteria set forth in section llO(i) of the 1977 Mine Act for 

each of the violations. Pursuant to notices of hearing, the hearing was 

held on May 9, 1980, in Lexington, Kentucky, with representatives of both 

parties present and participating. Evidence was presented addressing the 

sole issue not covered by the stipulations, i.e., the effect of a civil 

penalty on the mine operator's ability to continue in business. The record 

was left open until July 7, 1980, to permit Respondent to file a copy of its 

1979 Federal income tax return, a copy of the decision in a case pending at 

the time before an Administrative Law Judge of the National Labor Relations 

Board, In re Blackjack Coal Company, Inc., and Garland w. McWhorter, Case 

No. 9-CA-14343, and copies of any judgments entered against Respondent 

between May 9, -1980, and July 7, 1980. On July 14, 1980, Respondent filed 

a letter indicating that such documents would not be filed. !:./-

A schedule for the submission of posthearing briefs was agreed upon on 

May 9, 1980. Briefs were due on or before August 12, 1980. On July 25, 1980, 

Respondent filed a memorandum and proposed findings of fact and conclusions 

of law. On August 11, 1980, Petitioner filed a recommendation regarding the 

assessment of civil penalties. 

II. Violations Charged 

A. Docket No. BARB 78-705-P 

Citation/Order No. 

8-0016 

123413 

123414 

123415 

123416 

Date 

1/11/78 

4/11/78 

4/11/78 

4/11/78 

4/11/78 

30 C.F.R. Standard 

77.1303(d) 

77.130l(c)(2) 

77.1605(b) 

77.1605(b) 

77.410 

77.1713(c) 

~ This letter, dated July 7, 1980, states, in part, as follows: 

"I have waited until this last day in hopes of acquiring such items; 

however, I am unable to forward these at this time. Surprisingly, no further 

actions have been taken by the plaintiffs in the cases in'which lilackjack is 

defendant and so there have been no additional Judgments entered since [May 9, 

1980]. When the NLRB action came on for hearing in Jackson, Kentucky on 

•1ay 14, 1980, it was learned that the Administrative Law Judge assigned to the 

case was ill and the same was required to be rescheduled for July 28, 1980, 

and so no decision has yet been reached in that case. Finally, although 

Blackjack's accountant has been urged to complete the 1979 Federal Tax return 

for this purpose, the same has not yet been completed and filed, and so this 

also is unavailable. Thus, although it was honestly felt on May 9, 1980 that 

these items could be submitted as requested, it now appears.Blackjack must be 

denied the evidentiary advantage of these documents." 

3354 
123417 4/11/78 77 .1102 

123418 4/ll/7'd 77 .410 

123419 4/11/78 77 .410 

123420 4/11/78 77 .410 

123421 4/11/78 77 .410 

123422 4/11/78 77 .l 713(c) 

123423 4/11/78 77.1605(a) 

B. Docket No. BARB 79-185-P 

Citation No. Date 30 C.F.R. Standard 

144085 8/15/78 77 .410 

144086 - 8/15/78 77 .1104 

c. Docket No.· BARB 79-270-P 

Citation No. Date 30 C.F.R. Standard 

144087 8/15/78 77.130l(c)(5) 

D. Docket No. KENT 79-60 

Citation No. Date 3o·c.F.R. Standard 

142473 12/4/78 77 .410 

142474 12/4/78 77 .1109(c) (!) 

142475 12/4/78 77 .1102 

142476 12/4/78 77 .130l(c)(5) 

E. Docket No. KENT 79-204 

Citation No. Date 30 C.F.R. Standard 

737401 2/5/79 77.1605(b) 

737402 2/5/79 77 .410 

737403 2/6/79 77 .1110 

737404 2/6/79 77.1606(c) 

III. Witnesses and Exhibits 

A. Witnesses 

Respondent called as its witnesses Burl Black, its project manager; 

Bobbie Jean Black, its president, bookkeeper, and sole stockholder; and John 

~ent, a certified public accountant. 

Petitioner did not call any witnesses. 

3355 
B. Exhibits 

(i) Petitioner introduced the following exhibits in evidence: 

M-1 is a copy of Order No. 8-0016, January 11, 1978, 30 C.F.R. 

§ 77 .1303(d). 

M-2 is a copy of the termination of M-1. 

M-3 is a copy of Order No. 123413, April 11, 1978, 30 C.F.R. 

§ 77.1605(b), and a copy of the termination thereof. 

M-4 is a copy of Order No. 123414, April 11, 1978, 30 C.F.R. 

§ 77.1605(b), and a copy of the termination thereof. 

}1-5 is a copy of Citation No. 123415, April 11, 1978, 30 C.F .R. 

§ 77.410, and a copy of the termination thereof. 

l'l-6 is a copy of Citation No. 123416, April 11, 1978, 30 C.F.R. 

§ 77.1713(c), and a copy of the termination thereof. 

M-7 is a copy of Citation No. 123417, April 11, 1978, 30 C.F.R. 

~ 77.1102, and a copy of the termination thereof. 

;:.1-8 is a copy of Citation No. 123418, April 11, 1978, 30 C.F ,I{. 

§ 77.410, and a copy of the termination thereof. 

N-9 is a copy of Citation No. 123419, April 11, 1978, 30 C.F.R. 

§ 77.410, and a copy of the termination thereof. 

;:.1-10 is a copy of Citation No. 123420, April 11, 1978, 30 C.F .R. 

§ 77.410, and a copy of the termination thereof, 

M-11 is a copy of Citation No. 123421, April 11, 1978, 30 C.F.R. 

§ 77.410, and a copy of the termination thereof. 

M-12 is a copy of Citation No. 123422, April 11, 1978, 30 C.F .R. 

§ 77.1713(c), and a copy of the termination thereof. 

M-13 is a copy of Citation No. 123423, April 11, 1978, 30 C.F .R. 

§ 77.1605(a), and a copy of the termination thereof. 

M-14 is a copy of Citation No. 144087, August 15, 1978, 30 C.F.R. 

~ 77.130l(c)(5), and a copy of the termination thereof. -~ 

M-15 is a copy of Citation No. 142473, December 4, 1978, 30 C.F.R. 

§ 77.410, and a copy of the termination thereof. 

M-16 is a copy of Citation No. 142474, December 4, 1978, 30 C.f.R. 

§ 77.1109(~)(1), and a copy of the termination thereof. 

3356 
• 

M-17 is a copy of Citation No. 142475, December 4, 1978, 30 C.F.R. 

§ 77.1102, and a copy of the termination thereof. 

M-18 is a copy of Citation No. 142476, December 4, 1978, 30 C.F.R. 

§ 77.130l(c)(5), and a copy of the termination thereof. 

M-19 is a copy·of Citation No. 737401, February 5, 1979, 30 C.F.R. 

§ 77.1605(b), and a copy of the termination thereof. 

M-20 is a copy of Citation No. 737402, February 5, 1979, 30 C.F.R. 

§ 77.410, and a copy of the termination thereof. 

M-2~ is a copy of Citation No. 737403, February 6, 1979, 30 C.F.R. 

§ 77.1110, ":ind a copy of the termination thereof. 

M-22 is a copy of Citation No. 737404, February 6, 1979, 30 C.F.R. 

§ 77.1606(c), and a copy of the termination thereof. 

M-23 is a copy of Citation No. 144085, August 15, 1978, 30 C.F.R. 

§ 77.410, and a copy of the termination thereof. 

M-24 is a copy of Citation No. 144086, August 15, 1978, 30 C.F.R. 

§ 77.1104, and a copy of the termination thereof. 

(2) Respondent introduced the following exhibits in evidence: 

R-1 is a complaint and notice of hearing in the case of In re Blackjack Coal Company, Inc., and Garland W. McWhorter, Case No~ 9-CA-14343 (NLRB, 

Region 9). 

R-2 is a certified copy of a security agreement entered into between 

Respondent and Southern Explosives Corporation. 

R-3A is a copy of a civil summons and complaint in the case of Ford 

Motor Credit Company v. Blackjack Coal Company, Inc., Case No. 79-CI-1120_0 __ _ 

(Circuit Court, Jefferson County, Kentucky). 

R-3B is a notice pertaining to R-3A dismissing the proceeding for 

lack of venue and jurisdiction. 

R-3C is a notice of appeal pertaining to R-3A. 

R-4 is a copy of a civil summons and complaint in the case of 

Kentucky Machinery, Inc. v. Blackjack Coal Company, Inc., Case No. 80-CI-01885 

(Circuit Court, Jefferson County, Kentucky). 

R-5 is a copy of the complaint in the case of Brandeis Machinery and 

Supply Corporation v. Blackjack Coal Company, Inc., Case No. 79-CI-06950 

(Circuit Court, Jefferson County, Kentucky). 

3357 
R-6 is a copy of the civil summons and complaint in the case 

of Progressive Insurance Agency v. Blackjack Coal Company, Inc., Case 

No. 80-CI-0580 (r.ircuit Court, Franklin County, Kentucky). 

R-7 is a certified copy of a default judgment entered against 

Respondent in the amount of $3,631.45, plus interest and costs, in the case 

of Clark GM Diesel v. Blackjack Coal Company, Case No. 80-CI-0296 (Circuit 

Court, Franklin County, Kentucky, filed April 9, 1980). 

R-8 is a certified copy of a default judgment entered against 

l<espondent in the amount of $38,749.15, plus interest and costs, in the 

case of C.I.T. Corporation v. Blackjack Coal Company, Inc., et al., Case 

No. 80-CI-0072 (Circuit Court, Franklin County, Kentucky, filed February 14, 

1980). 

R-9 is a copy of a summary judgment entered against Respondent in 

the amount of $129,933.27, plus interest and costs, in the case of Associates 

Commercial Corporation v. Blackjack Coal Company, Inc., Case No. 79-CI-09609 

(Circuit Court, Jefferson County, Kentucky, filed March 10, 1980). 

R-10 is a certified copy of a default judgment entered against 

Respondent in the amount of $1,578.30, plus interest and costs, in the case 

of Cummins Diesel Sales of Louisville, Inc. v. Blackjack Coal, Inc., Case 

No. 80-CI-0445 (Circuit Court, Franklin County, Kentucky, filed April 29, 

1980). 

R-11 is a document styled "Blackjack Coal Company - Litigation." 

R-12 is a certified copy of a state tax lien in the amount of 

$2,281.68 filed against Respondent on December 21, 1979. 

R-13 is a certified copy of a Federal tax lien in the amount of 

~27,148.68 filed against Respondent on March 31, 1980. 

R-14 is a copy of Res~ondent's consolidated balance sheet as of 

December 31, 1979. 

R-15 is a copy of Respondent's 1978 Federal corporation income tax 

return. 

R-16A is a letter dated November 14, 1979, from Gregory T. Stafford, 

credit manager, General Electric Credit Corporation, to Mrs. Bobbie Jean Black. 

R-16B is a copy of a notice of public sale. 

R-16C is a letter dated September 14, 1979, from Gregory T. -Stafford, 

credit manager, General Electric Credit Corporation, to Respondent. 

R-16D is a letter dated September 14, 1979, from Gregory T. Stafford, 

credit manager, General Electric Credit Corporation, to Respondent. 

3358 
R-16E is a notice of public sale. 

R-16F is a letter dated November 14, 1979, from Gregory T. Stafford, 

credit manager, General Electric Credit Corporation, to Respondent. 

R-17A is a letter dated November 12, 1979, from the collection 

manager, General Electric Credit Corporation, to Respondent. 

R-17B is a letter dated September 24, 1979, from the district credit 

manager, Associates Commercial Corporation, to Respondent. 

R-17C is a letter dated February 29, 1980, from the collection 

manager, General Electric Credit Corporation, to Respondent • . · 

R-17D is a letter dated February 29, 1980, from the collection 

canager, General Electric Credit Corporation, to Bobbie Jean Black. 

IV. Issues 

1wo basic issues are involved in the assessment of a civil penalty: (1) 

did a violation of the mandatory standards 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 (b) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

(1) Respondent is subject to the provisions of the 1977 Mine Act (Tr. 

125). 

(2) The parties stipulated the qualifications of John Avent, certified 

public accountant (Tr. 60). 

(3) The alleged violations occurred as cited in each of the five cases 

styled Blackjack Coal Company, Inc., Docket Nos. BARB 78-705-P; BARB 79-185-P; 

BARB 79-270-P; KENT 79-60; and KENT 79-204. 

(4) Respondent will not contest the occurrence of the violations at the 

hearing. 

(5) Respondent is a small operator and its average annual production 

for 1979 was 234,020 tons (Tr. 9-12). 

3359 
(6) Respondent does not appear to have an excessive history of previous 

violations. The history of previous violations for the 2 years preceding the 

most recent violations in each case is as follows: 

paid for 

a. 

the 

BARB 78-705-P: Forty-six violations were cited of which 45 were 

period from January 12, 1976, to January 11, 1978. 

41 were 

41 were 

b. 

paid 

c. 

paid 

BARB 79-185-P: Fifty-nine violations were cited of which 

for the period from August 16, 1976, to August 15, 1978. 

BARB 79-270-P: Fifty-nine violations were cited of which 

for the period from August 16, 1976, to August 15, 1978. 

d. KENT 79-60: Four violations were cited of which none have been 

paid for the period from December 5, 1976, to December 4, 1978. 

e. KENT 79-204: Six violations were cited of which none have been 

paid for the period from February 6, 1977, to February 5, 1979. 

(7) In attempting to achieve rapid compliance, Respondent demonstrated 

normal good faith as to all except six violations. Respondent demonstrated 

rapid good faith as to six of the violations listed below: 

BARB 78-705-P: Citation Nos. 123418, 123419, 123420, 123421, 

123422, and 123423. 

(8) All of the violations except one were the result of ordinary negligence. One violation, Citation No. 8-0016, in Docket No. BARB 78-705-P, was 

the result of gross negligence. 

(9) The gravity of each violation expressed in terms of the degree of 

seriousness is as follows: 

a. BAK.B 78-705-P: All of the violations except four are serious. 

Citation Nos. 123417 and 123418 are moderately serious and Citation 

Nos. 123416 and 123422 are not serious. 

b. BARB 79-185-P: Citation No. 144086.is serious and Citation 

No. 144085 is moderately serious. 

c. BAR.8 79-270-P: Citation No. 144087 is serious. 

d. KENT 79-60: Citation Nos. 142474 and 142476 are serious and 

Citation Nos. 142473 and 142475 are moderately serious. ~ 

e. KENT 79-204: Citation No. 737401 is serious and Citation 

Nos. 737402, 737403 and 737404 are moderately serious. 

3360 
B. Occurrence of Violations, Negligence, Gravity, and Good Faith 

The parties stipulated that the violations occurred as cited and also 

entered into stipulations as to the negligence of the mine operator, the 

gravity of the violations, and the mine operator's demonstrated good faith 

in attempting to achieve rapid compliance after notification of the violations. These stipulations are reflected in the findings of fact set forth 

in this section of the decision. 

1. Docket No. BARB 78-705-P 

Order No. 8-0016 was issued on January 11, 1978, and cites Respondent 

for viol~ions of mandatory safety standards 30 C.F.R. § 77.130l(c)(2) and 

30 C.F.R. § 77.1303(d) ~/ as follows: 

Explosives such as dynamite, detonating cord, anfo and 

blasting caps were being stored in a vehicle with flammable 

liquid fuel. 77.130l(c)(2). The explosives were allowed to 

become wet, frozen, and deteriorated from severe weather conditions. 77.1303(d). The vehicle with the explosives was 

located within the maintenance area where employees and an 

open flame exists. 

(Exh. M-1). The violations were serious, Respondent demonstrated gross negligence, and Respondent demonstrated normal good faith in attempting to achieve 

rapid compliance. 

Citation No. 123413 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1605(b) in that 11 [t]he No. 1 Pay Loader (140) refuse truck was operating in the No. 2 Pit 

without brakes" (Exh. M-3). The violation was serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated normal good faith 

in attempting to achieve rapid compliance. 

Citation No. 123414 was issued on April 11, 1978, and cites Re.spondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1605(b) in that 11 [t]he No. 2 Pay Loader (140) refuse truck was operating in No. 2 Pit without brakes" (Exh. M-4). The violation was serious, Respondent demonstrated 

ordinary negligence, and Respondent demonstrated normal good faith in 

attempting to achieve rapid compliance. 

Citation No. 123415 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that 11 [t]he 560 Huff end-loader working in No. 2 pit, automatic reverse alarm was 

inoperative in that it did not give an audible alarm when put in reverse" 

2/ Although Order No. 8-0016 cites Respondent for two violations, the 

Office of Assessments proposed a penalty only for the violation of 30 C.F.R. 

§ 77 .1303(d). 

3361 
(Exh. M-5). The violation was serious, Respondent demonstrated ordinary 

negligence, and Respondent demonstrated normal good faith in attempting to 

achieve rapid compliance. 

Citation No. 123416 was issued on Apr.il 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1713(c) in that 

"[a] daily record book was not being kept at this mine of hazardous conditions (No. 2 Pit)" (Exh. M-6). The violation was not serious, Respondent 

demonstrated ordinary negligence, and Respondent demonstrated normal good 

faith in attempting to achieve rapid compliance. 

Citation No. 123417 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1102 in that 

"[t]he above ground fuel tank in No. 1 Pit was not posted with signs warning 

against smoking and open flames" (Exh. M-7). The violation was moderately 

serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated normal good faith in attempting to achieve rapid compliance. 

--

Citation No. 123418 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that 

"[t]he 90 Huff Pay Loader end-loader working in No. 1 Pit auto reverse alarm 

was inoperative in that it did not give an audible alarm when put in reverse" 

(Exh. M-8). The violation was moderately serious, Respondent demonstrated 

ordinary negligence, and Respondent demonstrated rapid good faith in 

attempting to achieve rapid compliance. 

Citation No. 123419 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that 

"[t]he Galion road grader's automatic reverse alarm was inoperative in that 

it did not give an audible alarm when put in reverse" (Exh. M-9). The violation was serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated rapid good faith in attempting to achieve rapid compliance. 

Citation No. 123420 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that 

"[t]he Massey Ferguson front-end-loader (L-0123) working in No. 1 pit, automatic reverse alarm was inoperative in that it did not give an audible alarm 

when put in reverse" (Exh. M-10). The violation was serious, Respondent 

demonstrated ordinary negligence, and Respondent demonstrated rapid good 

faith in attempting to achieve rapid compliance. 

Citation No. 123421 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that 

"[t]he TD 25 dozer (Serial No. YM 3150) working in No. 1 pit, automatic 

reverse alarm was inoperative in that it did not give an audible a~rm when 

put in r.everse" (Exh. M-11). The violation was serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated rapid good faith 

in attempting·to achieve rapid compliance. 

Citation No. 123422 was issued on April 11, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1713(c) in that 

3362 
"a daily record book was not being kept at this mine of hazardous conditions 

(No. 1 Pit)" (Exh. M-12). The violation was not serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated rapid good faith in 

attempting to achieve rapid compliance. 

Citation No. 123423 was issued on April 11, 1978, and cites Respondent 

for a violation of mandafory safety standard 30 C.F .R. § 77 .1605(a) in that 

"[t]he Damco rotary rock drill windows were cracked and broken to the extent 

it affected the visibility of the operator" (Exh. M-13). The violation was 

serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated rapi~.good faith in attempting to achieve rapid compliance. 

2. Docket - No. BARB 79-185-P 

Citation No. 144085 was issued on August 15, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that "[t]he 

audible automatic reverse warning device is inoperative on the 560 Hough 

front-end-loader in that it will not give an alarm when put in reverse. The 

560 Hough is being operated in the strip pit area" (Exh. M-23). The violation was moderately serious, Respondent demonstrated ordinary negligence·, and 

Respondent demonstrated normal good faith in attempting to achieve rapid 

compliance. 

Citation No. 144086 was issued on August 15, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1104 in that 

"[a]ccumulations of combustible materials such as boxes and paper are located 

at the explosives magazine" (Exh. M-24). The violation was serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated normal 

good faith in attempting to achieve rapid compliance. 

3. Docket No. BARB 79-270-P 

Citation No. 144087 was issued on August 15; 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.130l(c)(5) in 

that "[t]he explosive magazine located next to the maintenance area is not 

grounded" (Exh. M-14). Ihe violation was serious, Respondent demonstrated 

ordinary negligence, ·and Kespondent demonstrated normal good faith in 

attempting to achieve rapid compliance. 

4. Docket No. KENT 79-60 

Citation No. 142473 was issued on December 4, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that "an 

automatic warning device which would give an audible alarm when such equipment 

is put in reverse was not provided on the Fiat-Allis 745-C end loader, which 

was loading coal in Pit 001" (Exh. M-15). The violation was moderately 

serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated normal good faith in attempting to achieve rapid compliance. 

Citation No. 142474 was issued on December 4, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1109(c)(l) in that 

3363 
"[p]ortable fire protection was not provided on the Fiat-Allis 745-C end 

loader which was loading coal in the No. 1 Pit" (Exh. M-16). The violation 

was serious, Respondent demonstrated ordinary negligence, and Respondent 

demonstrated normal good faith in attempting to achieve rapid compliance. 

Citation No. 142475 was issued on December 4, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1102 in that 

"[s]igns warning against smoking and open flames was [sic] not posted on or 

near the 1,000 gallon above ground diesel fuel storage tank located in the 

No. 1 Pit" (Exh. M-17). The violation was moderately serious, Respondent 

demonstrated ordinary negligence, and Respondent demonstrated normal good 

faith in attempting to achieve rapid compliance. 

Citation No. 142476 was issued on December·4, 1978, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.130l(c)(5) in 

that "[t]he metal magazine which was used to store explosives in was not 

electrically bonded and grounded" (Exh. M-18). The violation was serious, 

Respondent demonstrated ordinary negligence, and Respondent demonstrated 

normal good faith in attempting to achieve rapid compliance. 

5. Docket No. KENT 79-204 

Citation No. 737401 was issued on February 5, 1979, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1605(b) in that 

"[t]he 400 Hough end loader working in Pit 001 was not provided with adequate 

brakes, in that when the brakes were tested on level surface at approximately 

5 miles per hour the loader would not stop" (Exh. M-19). The violation was 

serious, Respondent demonstrated ordinary negligence, and Respondent demonstrated normal good faith in attempting to achieve rapid compliance. 

Citation No. 737402 was issued on February 5, 1979, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.410 in that "an 

automatic warning device which shall give an audible alarm when the equipment 

is put in reverse was not provided on the 25 International dozer working in 

the No. 1 Pit" (Exh. M-20, Tr. 136). The violation was moderately serious, 

Respondent demonstrated ordinary negligence, and Respondent demonstrated 

normal good faith in attempting to achieve rapid compliance. · 

Citation No. 737403 was issued on February 6, 1979, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1110 in that 

"[s]everal portable fire extinguishers throughout the Pit 001, was [sic] not 

provided with a permanent tag attached to the extinguishers showing the date 

of examination" (Exh. M-21). The violation was moderately serious, Respondent demonstrated ordinary negligenc~, and Respondent demonstrated normal 

good faith in attempting to achieve rapid compliance. -

Citation No. 737404 was issued on February 6, 1979, and cites Respondent 

for a violation of mandatory safety standard 30 C.F.R. § 77.1606(c) in that 

" [ t] he 85-ton Rimpull rock truck (Company No. 1) hauling refuse in the No. 1 

Pit was not provided with a mirror on the right side of the truck, therefore 

3364 
hindering the operator's view when in reverse motion" (Exh. M-22). The violation was moderately serious, Respondent demonstrated ordinary negligence, 

and Respondent demonstrated normal good faith in attempting to achieve rapid 

compliance. 

C. Size of the Operator's Business 

The parties stipulated that Respondent is a small operator and that its 

average annual production for 1979 was 243,000 tons (Tr. 9-12). 

D. History of Previous· Violations 

The parties stipulated that Respondent does not appear to have an excessive history of previous violations. As relates to Docket No. BARB 78-705-P, 

Respondent had 45 violations for which assessments were paid from January 12, 

1976, to January 11, 1978. As relates to Docket Nos. BARB 79-185-P and BARB 

79-270-P, Respondent had 41 violations for which assessments were paid from 

August 16, 1976, to August 15, 1978. As relates to Docket No. KENT 79-204, 

Respondent did not have any violations for which assess~ents were paid from 

February 6, 1977, to February 5, 1979. As relates to Docket No. KENT 79-60, 

Respondent did not have any violations for which assessments were paid from 

December 5, 1976, to December 4, 1978. 

E. Effect of a Civil Penalty on the Operator's Ability to Continue 

in Business 

Respondent commenced business in January of 1976 (Tr. 19). The company 

terminated its mining operations in October of 1979, with the exception of 

certain reclamation activities (Tr. 14), and had no employees as of the date 

of the hearing (Tr. 16). According to the testimony of Mr. Burl Black, who 

served as Respondent's project manager, additional reclamation activities 

were expected to continue until approximately September of 1980, at a cost 

of approximately $20,000 (Tr. 17). Respondent's balance sheet (Exh. R-14) 

shows that a $15,000 reserve has been earmarked for reclamation activities 

(see also Tr. 64). 

Respondent was set up as a corporation, and Mrs. Billie Jean Black, the 

wife of Burl Black, was the sole stockholder as of the date of the hearing 

(Tr. 38). Neither Mr. Black nor Mrs. Black own any other coal companies, 

nor do they have any interest whatsoever in any other mining operations (Tr. 

27). Additionally, Respondent does not own and does not have an interest 

in any other business, does not have any interest in or maintain any coal 

rights, and does not own any land (Tr. 57). According to Mrs. Black, Respondent is insolvent (Tr. 39). 

Respondent submitted extensive documentation outlining its financial 

posture, including a copy of its 1978 U.S. Corporation Tax Return; its 

balance sheet as of December 31, 1979, prepared without audit; certified 

.copies of judgments and state and Federal tax liens secured against it; and 

various letters from creditors notifying Respondent as to the repossession 

3363 
of designated equipment and, in some instances, follow-up notifications 

subsequent to sale of the equipment apprising Respondent as to the results 

of the sale and the deficiency balance due. Additionally, documents were 

submitted as relates to legal actions pending against Respondent before the 

State courts in Kentucky and the National Labor Relations Board as of the 

date of the hearing. 

Respondent's 1978 U.S. Corporation Income Tax Return listed total income 

in the amount of $4,505,662, and total deductions in the amount of $4,628,119, 

yielding a loss for tax purposes in the amount of $122,537. 

Schedule M-1 of the tax return contains a reconciliation of income per 

books with income per return. The entries show a net loss per books in the 

amount of $171,955, and an expense recorded on the books, but not deducted 

on the return, in the form of a $49,918 "new jobs credit." The two figures, 

when combined, yield the $122,537 loss referred to above. 

Schedule L of the tax return contains a balance sheet setting forth 

Respondent's financial posture in terms of assets, liabilities and stockholders' equity as follows: 

ASSETS 

Beginning of Taxable Year End of Taxable Year 

1. Cash (overdraft) $ 84,028 ($244,582) 

2. Trade notes and accounts 

receivable, less allowance 

for bad debts 29,250 212,802 

3. Inventories 22,500 22,500 

4. Government obligations 

5. Other current assets 144,758 470,806 

6. Loans to stockholders 

7. Mortgage and real estate 

loans 

8. Other investments 

9. Buildings and other 

depreciable assets, less 

accumulated depreciation 1,395,103 3,200,740 

10. Depletable assets, less 

accumulated depletion 

11. Land (net of any 

amortization) 36,500 36,500 

12. Intangible assets 

(amortizable only), less - accumulated amortization 

13. Other assets 118,829 293 ,.913 

14. Total assets $ 1,830,968 $ 3,992,679 

3366 
LIABILITIES AND STOCKHOLDERS' EQUITY 

15. Accounts payable $ 302,777 $ 489,354 

16. Mortgages, notes, bonds 

payable in less than 1 year 829,905 1, 770,493 

17. Other current liabilities 32,132 

18. Loans from stockholders 

19. Mortgages, notes, bonds 

payable in 1 year or more 397,060 1,461,435 

20. Other liabilities 

(reclamation) 46,805 45,980 

21. Capi t~. stock 2,000 2,000 

22. Paid-in or capital surplus 1,886 1,886 

23. Retained earnings--appropriated 

24. Retained earnings--

unappropriated 293,403 296,531 

25. Less cost of treasury stock (7 5 ,000) (75,000) 

$1,830,968 $3,992,679 

Respondent's unaudited balance sheet as of December 31, 1979, sets forth 

Respondent's financial posture in terms of assets, liabililties and stockholders' equity as follows: 

ASSETS 

Current Assets: 

Accounts receivable $ 123,088 

Total Current Assets 

Fixed Assets: 

Equipment $ 

Furniture and fixtures 

Total 

Less: accumulated depreciation 

Total Fixed Assets - Book Value 

TOTAL ASSETS 

LIABILITIES AND STOCKHOLDER'S EQUITY 

Current Liabilities: 

Cash overdraft 

Accounts payable - trade 

Severance and reclamation 

taxes payable 

$ 

Accrued payroll and payroll taxes 

Nortgages payable - equipment 

3367 

263,422 

9,331 

272,753 

186,571 

66,175 

386,027 

16,385 

2,421 

126,000 

$ 123,088 

$ 86,182 

$ 209,270 
Notes payable - equipment 569,745 

Reserve for reclamation expenses ___ 15,000 ........_ __ Total Current Liabilities 

Stockholder's Equity: 

Capital stock 

Paid-in surplus 

Retained earnings (deficit) 

Less: Cost of treasury stock 

Total Stockholder's Equity 

(Deficit) 

2,000 

1,886 

(901,369) 

(75,000) 

TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY 

$1,181,753 

(972,483) 

$ 209,270 

According to Mr. John Avent, the certified public accountant who prepared 

both the tax return and the balance sheet, $2,180 of the $123,088 in accounts 

receivable has been collected and the balance has been assigned to the Rogers 

Oil Company in exchange for a fuel oil debt that is included in the accounts 

payable (Tr. 62-63). Mr. Avent testified that the items of equipment that 

remained in Respondent's possession had a book value of $86,182, 3/ and have 

mortgages against them totaling approximately $126,000 (Tr. 63-64). 4/ All 

other equipment has been repossessed (Tr. 39-40). ]_/ Deficiency bal-;nces on 

3/ Hr. Avent was unable to express an opinion as to the actual value of the 

equipment (Tr. 100). 

!:J Southern Explosives Corporation has a $76,780.97 security intetest in the 

following items: One International Harvester Dozer, Model TD25C, Serial No. 

2450; one Hovuette & Streeter truck scale, Serial Nos. 7809 and 0169; one 

Coleman, Model MH400L, portable light tower, with Deutz diesel engine and 

Lima generator, Serial No. L-509; one Coleman, Model MH400L light plant, 

Serial No. L 129; and one Cole~an, Model MH400L, light tower, Serial No. 134 

(Exh. R-2). An additional piece of equipment, a Massey Ferguson loader, 

Serial No. 1854800123, is pledged to Farmer's Bank and Capital Trust Company 

on a $50,000 chattel mortgage (Tr. 39-40, 72-73, Exh •. R-14, p. 3). Additionally, Respondent has a 1979 Chevrolet pickup truck against which there is no 

security interest or mortgage (Tr. 41). 

5/ The documents placed in evidence by Respondent set forth the following 

information as relates to the repossessed equipment: (1) By a letter dated 

November 14, 1979, Respondent was notified by General Electric Credit Corporation that the equipment covered by Account No: 336397 had been repossessed 

and would be held for private sale commenci.ng November 26, 1979, abs9t 

redemption on or before November·25, 1979. The balance due on the"account 

was $104,205.08 (Exhs. R-16A, R-16F). (2) On or around December 8, 1979, 

Respondent received a Notice of Public Sale from Leasing Service Corporation, 

announcing that three Komatsu crawler tractors, Serial Nos.·15866, 16220 and 

16221, would be sold at public auction on December 19, 1979. The notice 

contains no information as to the balance due on the account (Exh. R-16B). 

3368 
the notes after resale of equipment repossessed in 1979 are listed on the 

balance sheet under mortgages payable and notes payable (Tr. 95-96, 99). 

Judgments have been entered against Respondent in the amount of $173,892.17, 

plus court costs and interest (Exhs. R-7, R-8, R-9, R-10). These judgments 

involve items which are listed on the December 31, 1979, balance sheet under 

accounts payable or under notes payable (Tr. 77-78). 6/ A state tax lien 

was filed on December 21, 1979, for $2,281.68 in coal-severance taxes, and 

a Federal tax lien was filed on March 31, 1980, for $27,148.68 (Exhs. R-12, 

Footnote 5 (continued) 

(3) By a J.e-tter dated September 14, 1979, Respondent was notified by General 

Electric Credit Corporation that one 1978 Rimpull Model RD65 rear dump hauler, 

Serial No. 780104, had been repossessed. The balance due on the account was 

~206,440.15. The equipment was sold at a private sale on February 29, 1980, 

and left a deficiency balance of $105,811.39 (Exhs. R-16C, R-17C, R-17D). 

(4) By letter dated September 14, 1979, Respondent was notified that a 1976 

International TD25C crawler tractor, Serial No. 5657, had been repossessed. 

The balance due on the account was $14,830.15. The equipment was sold at a 

private sale on October 31, 1979, and left a deficiency balance of $8,330.15 

(Exhs. R-16D, R-17A). (5) On or around September 7, 1979, Respondent 

received a Notice of Public Sale from Ford Motor Credit Company announcing 

that the following items would be sold at public sale on September 27, 1979: 

One Hough HlOOC wheel loader, Serial No. 1846; two Hough 560 wheel loaders, 

Serial Nos. 2226 and 2415; two IHC TD25C crawler tractors, serial Nos. 6396 

and 6534; and one Rimpull RD 65 off-road truck, serial No. 780101. The notice 

contains no information as to the balance due on the account (Exh. R-16E). 

(6) By letter dated September 24, 1979, Respondent was notified by Associates 

Commercial Corporation that an International TD25C dozer, Serial No. 6342, 

and a Rirapull RD65 truck, Serial No. 770116, were sold at a public sale on 

September 24, 1979, yielding a deficiency balance of· $129,777.04 (Exh. R-17B). 

~/ The judgments against Respondent are identified as follows: 

Clark G. M. Diesel v. Blackjack Coal Company, Inc., Franklin Circuit 

Court, No. 80-CI-0296. Judgment entered April 9, 1980, in favor of Clark 

for $3,631.45 plus 6 percent per annum interest from September 29, 1979, 

and 8 percent interest from April 9, 1980, plus costs. 

C.I.T. Corporation v. Blackjack Coal Company, Inc., Franklin Circuit 

Court, No. 80-CI-0072. Judgment entered February 14, 1980, awarding C.I.T. 

$38,749.15 plus interest at rate of 8 percent per annum until paid, plus 

costs. 

Associates Commercial Corporation v. Blackjack Coal Company, Inc., 

Jefferson Circuit Court, No. 79-CI-09609. Judgment entered .March lU, 1980, 

awarding Associates $129,933.27, plus interest at rate of 8 percent per annum, 

plus costs. 

Cummins Diesel Sales of Louisville, Inc. v. Blackjack Coal Company, Inc., 

Franklin Circuit Court, No. 80-CI-0445. Judgment entered April 10, 1980, 

awarding Cummins $1,578.30 plus interest at rate of 8 percent from April 29, 

1980, until paid, plus costs. 

3369 
R-13). Additional legal proceedings were pending against Respondent on the 

date of the hearing (Exhs. R-1, R-2A-3C, R-4, R-5, R-6). 21 

According to Mr. Avent, Respondent showed a taxable income during 1977. 

In 1977, the business was in good condition and made a "good amount of money." 

Accordingly, Respondent purchased additional mining equipment in 1978 (Tr. 

94). It appears that Respondent's financial decline was attributable to the 

costs of reclamation, increasing costs for supplies, and the declining market 

price of coal (Tr. 14-15, 95). 

By December 31, 1979, Respondent had total assets in the amount of 

$209,270, of which $120,908 had been assigned to Rogers Oil Company as of the 

date of the hearing, and of which the equipment represented by a book value 

of $86,182 had been mortgaged for approximately $126,000, as of the date of 

the hearing. Total current liabililties were listed at $1,181,753. Respondent showed $296,531 in retained earnings on its 1978 tax return, a figure 

which had dropped to a minus $901,369 as of December 31, 1979, a net change of 

minus $1,197,900. 

In view of the foregoing, it is found that the assessment of civil penalties in the amounts proposed by the Office of Assessments will adversely 

affect Respondent's ability to remain in business or to re-establish itself 

in such business. 

21 The pending actions are identified as follows: 

Ford Motor Credit Company v. Blackjack Coal Company, Inc., Jefferson 

Circuit Court, No. 79-CI-11200. Dismissed in circuit court, appealed to 

Kentucky Court of Appeals. Action seeks $304,541.30 claimed due in account, 

plus $10,000 attorney's fees, plus 8 percent interest from July 20, 1980, 

plus costs. 

Kentucky Machinery, ·Inc. v. Blackjack Coal Company, Inc., Jefferson 

Circuit Court, No. 80-CI-01885. Action seeks $11,991.76 plus interest at 

the rate of 1-1/2 percent per month from January 16, 1980, until date of 

judgment and 8 percent per annum thereafter, plus costs. 

Brandeis Machinery and Supply Corporation v. Blackjack Coal Company, 

Inc., Jefferson Circuit Court, No. 79-CI-06950. Action seeks following sums 

claimed due on account plus costs: 

1. $253,211.70 plus interest at rate of 8 percent per annum from 

September 27, 1979, until date of judgment and 8 percent thereafter. 

2. $127,837.67 plus interest at rate of 1-1/2 percent per month from 

January 9, 1979, until date of judgment and at the rate of 8 percent per 

.annum thereafter until paid. 

3. $8,488.25 plus interest at rate of 1-1/2 percent per month from 

July 9, 1979, until date of judgment and at rate of 8 percent per anrn1m 

thereafter. 

Progressive Insurance Company, Inc. 

Franklin Circuit Court, No. 80-CI-0580. 

for insurance and bonds, plus costs and 

In re Blackjack Coal Company, Inc. 

9-CA~l4343 (NLRB, Region 9). 

v. Blackjack Coal Company, Inc., 

Action seeks $41,047.67 claimed due 

attorney's fees. 

and Garland w. McWhorter, Case No. 

3370 
VI. Conclusions of Law 

1. Blackjack Coal Company, Inc.,_and its No. i and No. 3 Surface Mines 

have been subject to the provisions of the Federal Coal Mine Health and Safety 

Act o·f 1969 and the 1977 Mine Act at all times relevant to these ·proceedings. 

2. Under the Acts, the Administrative Law Judge has jurisdiction over 

the subject matter of, and the parties to, these proceedings. 

3. All of the violations charged are found to have occurred as alleged. 

4. All of the conclusions of law set forth in Part V of this decision 

are reaf~imed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Respondent submitted a memorandum and proposed findings of fact and conclusions of law. Petitioner submitted a recommendation regarding the assessment of civil penalties. Such filings, 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. 

VIII. Penalties Assessed 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows: 

A. Docket No. BARB 78-705-P 

Citation/Order No. Date 30 C.F.R. Standard Penalty 

8-0016 1/11/78 77 .1303(d) ~ 75 

77.130l(c)(2) 50 

123413 4/11/78 77.1605(b) 50 

123414 4/11/78 77.1605(b) 50 

123415 4/11/78 77. 410 10 

123416 4/11/78 77 .1713(c) 5 

123417 4/11/78 77 .1102 5 

123418 4/11/78 77 .410 10 

123419 4/11/78 77. 410 10 

123420 4/11/78 77 .410 10 

123421 4/11/78 77 .410 10 

123422 4/11/78 77 .1713(c) 5 

i23423 4/11/78 77.1605(a) 5 

3371 
B. Docket No. BARB 79-185-P 

Citation No. Date 30 C.F.R. Standard Penalty 

144085 8/15/78 77.410 $ 10 

144086 8/15/78 77 .1104 15 

c. Docket No. BARB 79-270-P 

Citation No. Date 30 C.F.R. Standard Penalty 

144087 8/15/78 77.130l(c)(5) $ Su 

D. Docket No. KENT 79-60 

Citation No. Date 30 C.E'.R. Standard Penalty 

142473 12/4/78 77. 410 ~ 10 

142474 12/4/78 77.1109(c)(l) 5 

142475 12/4/78 77 .1102 5 

142476 12/4/78 77.130l(c)(5) so 

E. Uocket No. KENT 79-204 

Citation No. Date 30 C.F.R. Standard Penalty 

737401 2/5/79 77.160S(b) $ 25 

737402 2/5/79 77 .410 10 

737403 2/6/79 . 77 .1110 5 

737404 2/6/79 77.1606(c) 5 

Total $485 

ORDER 

i.:Cspondent is ORDERED to pay civil penalties in the total amount of 

$485 within 3U days of the date of this decision. 

3372 
Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Larry Cleveland, Esq., P.O. Box 595, 314 Wilkinson Street, Frankfort, KY 

40602 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Admini~irator for Metal and Nonmetal Mine Safety and Health, U.S. 

De~rtment of Labor 

Standard Di~tribution 

3373 
~EDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

HERB COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Respondent 

NOV 2 O 1980 

Civil Penalty Proceeding 

Docket No. WILK 79-116-P 

A/O No. 36-05593-03001-R 

No. 7 Drift Mine 

DECISION 

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

of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Warren Vogel, Esq., Thomas B. Rutter, Ltd., Philadelphia, 

Pennsylvania, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On February 22, 1979, the Mine Safety and Health Administration 

(Petitioner) filed a petition.for assessment of civil penalty in the abovecaptioned proceeding pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1978) (1977 Mine Act). The 

petition alleges one violation of sectioU-103(a) of the 1977 Mine Act as set 

forth in a citation issued pursuant to section 104(a) of the 1977 Mine Act. 

An answer was filed by Herb Coal Company (Respondent) on March 28, 1979. 

On July 20, 1979, Respondent filed a request to stay the proceedings 

pending final resolution of an action pending against Respondent in the 

Federal courts. On August 1, 1979, Petitioner filed a motion to deny 

Respondent's request for stay of proceedings stating that the Federal 

court proceedings against Respondent had been concluded. Attached'"°thereto 

was a copy of an order entered in the case of Marshall v. Herb Coal Company, 

Civil Action No. 79-313 (E.D. Pa., filed July 18, 1979), that permanently 

enjoined Respondent: 

[F]rom denying authorized representatives of the Secretary of Labor entry to, upon, or through [Respondent's] 

mine; from refusing to permit inspection of said mine; 

3374 
from interfering with, hindering, or delaying the Secretary, or his authorized representatives .in carrying out 

the provisions of the Federal Mine Safety and Health Act 

of 1977 * * * . 

In addition, the order denied Respondent's motion for a stay pending appeal. 

Accordingly, on September 7, 1979, Respondent's request for a stay was denied. 

On March 7, 1980, a notice of hearing was issued scheduling the case for 

hearing on the merits on May 29, 1980, in Harrisburg, Pennsylvania. The hearing was held as scheduled with representatives of both parties present and 

participating. Respondent made an oral motion to dismiss at the close of 

Petitiotler's case-in-chief. The motion was denied. 

After the presentation of the evidence, a schedule for the submission of 

post-trial briefs was agreed upon. Petitioner and Respondent filed briefs on 

July 17, 1980, and August 1, 1980, respectively. Neither party filed a reply 

brief. 

II. Violation Charged 

Citation No. Date Section 

225011 9/21/78 103(a) 

III. Witnesses and Exhibits 

A. Witnesses 

Petitioner called as its witness Federal mine inspector.Albert F. Zegley. 

Respondent called as its witness Dale Herb, its'proprietor. 

B. Exhibits 

1. Petitioner introduced the following exhibits in evidence: 

M-1 is a copy of an order entered in Marshall v. Herb Coal Co., Civil 

Action No. 79-313 (E.D. Pa., filed July 18, 1979), granting plaintiff's motion 

for summary judgment and denying defendant's motion for summary judgment. 

M-2 is a copy of the judgment order in Marshall v. Herb Coal Co., 

No. 79-2152 (3rd Cir., filed Yebruary 22, 1980). 

M-3 is a copy of 104(a) Citation No. 225011, issued on September 21, 

1978, citing Respondent for a violation of section 103(a) of the 1977 Mine 

Act. 

M-4 is a copy of 104(b) Order No. 225012, issued to Respondent for its 

failure to abate M-3. 

3375 
M-5 is a copy of a controller information report prepared by the 

Directorate of Assessments containing information as to Respondent's size. 

M-6 is a computer printout prepared by the Directorate of Assessments 

listing Respondent's history of previous violations for the time period 

beginning September 29, 1976, and ending September 28, 1978. 

M-7 is a copy of a memorandum dated April 28, 1980. 

M-8 is a copy of a memorandum dated August 6, 1979. 

2. Respondent introduced the following exhibit in evidence: 

R-1 is a copy of Dale Herb's 1978 Federal income tax return. 

IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of section 103(a) of the 1977 Mine Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have occurred? In 

determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity. 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. Herb Coal Company operates the No. 7 Drift Mine under lease from the 

State of Pennsylvania, Schuylkill County (Tr. 7). 

2. Herb Coal Company and its No. 7 Drift Mine are subject to the jurisdiction of the 1977 Mine Act (Tr. 7). 

3. The Administrative Law Judge has jurisdiction over the subject matter 

, of, and the parties to, this proceeding (Tr. 7). 

B. Occurrence of Violation 

Federal mine inspector Albert F. Zegley arrived at Respondent's No. 7 

Drift Mine at approximately 8:45 a.m. on September 21, 1978, to conduct a 

regular health and safety inspection of the mine (Tr. 13-14). };_/ Inspector 

1/ In September of 1978, only three individuals worked at the mine. A 

paid hoisting engineer and Mr. Herb appear to have been the only individuals 

3376 
Zegley apprised Mr. Dale Herb, Respondent's proprietor, as to the purpose of 

his visit. Mr. Herb thereupon inquired as to whether Inspector Zegley had a 

search warrant, and apprised the inspector that, absent a search warrant, he 

wou.ld be denied entry to the mine. Entry was denied on this basis (Tr. 14-

15, 57). Accordingly, at approximately 9:00 a.m., Inspector Zegley issued 

Citation No. 225011 citing Respondent for a violation of section 103(a) of 

the 1977 Mine Act. The citation states that "[o]n [September 21, 1978] 

Dale Herb, owner and mine foreman, refused to allow Albert F. Zegley, an 

authorized representative of the Secretary, entry into the No. 7 Drift Mine 

for the purpose of conducting an inspection of the mine pursuant to section 

103(a) of the Act. Mr. Herb stated that the Federal inspector could not 

enter his.·mine to conduct any inspection without a search warrant• Mr. Herb 

was advised that a search warrant was not necessary" (Exh. M-3). 

Section 103(a) of the 1977 Mine Act provides, in part, that: "For the 

purpose of making any inspection or investigation under this Act, the Secretary, * * * with respect to fulfilling his responsibilities under this Act, 

or any authorized representative of the Secretary * * *, shall have a right 

of entry to, upon, or through any coal or other.mine." 

Federal courts addressing the issue have ruled that a search warrant is 

not required in order to gain entry to a mine for the purpose of conducting 

health and safety inspections pursuant to the. 1977 Mine Act. See Marshall v. 

Sink, 614 F.2d 37 (4th Cir. 1980); Marshall v. The Texoline Company, 612 F.2d 

935 (5th Cir. 1980); Marshall v. Nolichuckey Sand Company, 606 F.2d 693 (6th 

Cir. 1979), cert. denied, 100 S. Ct. 1835 (April 21, 1980); Marshall v. 

Stoudt's Ferry-preparation Company, 602 F.2d 589 (3rd Cir. 1979), cert. 

denied, 100 s. Ct. 665 (January 7, 1980); Marshall v. Cedar Lake Sand & 

Gravel Company, Inc., 480 F. Supp. 171 (E.D. Wis. 1979); Marshall v. Donofrio, 

465 F. Supp. 838 (E.U. Pa. 1978), aff'd, 605 F.2d 1194 (3rd Cir. 1979), 

cert. denied, 100 S. Ct. 1067 (February 19, 1980). 2/ In fact, Respondent 

and its "agents, servants, representatives and all persons in active concert 

therewith" have· been permanently enjoined "from denying authorized representatives of the Secretary of Labor entry to, upon, or through" its mine; "from 

refusing to permit inspection of said mine; from interfering with, hindering, 

or delaying the Secretary, or his authorized representatives in carrying out 

the provisions of" the 1977 Mine Act. Marshall v. Herb Coal Company, Civil 

Action No. 79-313 (E.D. Pa., filed July 18, 1979), aff'd., No. 79-2152 (3rd 

Cir., filed February 22, 1980). 

fn. 1 (continued) 

working at the mine on a regular basis, with Mr. Herb working underground 

and the hoisting engineer working on the surface. On September 21, 1978, 

Mr. John Frantz, a part-time worker who received no monetary compensation, 

was working underground with Mr. Herb. Mr. Herb and Mr. Frantz performed 

reciprocal favors for each other on occasion, thus accounting for 

Mr. Frantz's part-time activities at the No. 7 Drift Mine (~r. 67-68). 

2/ Two Federal courts considering the issue have reached the opposite 

conclusion. Marshall v. Wait, No. 78-2345 (9th Cir., filed September 29, 

1980); Marshall v. Dewey, 493 F. Supp. 963 (E.D. Wis. 1980). 

3377 
There is no dispute as to the fact that Inspector Zegley was denied entry 

to Respondent's No. 7 Drift l1ine on September 21, 1978, for the purpose of 

conducting a health and safety inspection pursuant to the 1977 Mine Act. 

Accordingly, it is found that the denial of entry, as set forth in Citation 

No. 225011, occurred, and that such denial of entry was a violation of section 

103(a) of the 1977 Mine Act. 

c. Negligence of the Operator 

In Marshall v •. Donofrio, supra, the Secretary of Labor sought to enJoin 

the defendants from denying his authorized agents access to their coal mine 

for the purpose of conducting inspections pursuant to the 1977 Mine Act. The 

mine involved in the Donofrio case was an anthracite mine located in Schuylkill 

County, Pennsylvania. The Court addressed two issues in determining whether 

to grant the Secretary of Labor injunctive relief: First, whether the statute 

covers mines that are totally owned and operated by the same persons, i.e., 

those mines where the only persons working therein are the owners themselves; 

and second, whether warrantless inspections conducted pursuant to section 

103(a) of the 1977 Mine Act run afoul of the United States Supreme Court's 

rationale in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), or the 

restraints imposed on the Federal Government by the Fourth Amendment to the 

United States Constitution. The United States District Court for the Eastern 

District of Pennsylvania answered the first question in the affirmative, and 

answered the second question in the negative in an opinion issued on 

November 16, 1978. 

The District Court opinion reveals that on September 1, 1978, a hearing 

was conducted on the Secretary of Labor's motion for a preliminary injunction, with all parties represented, at which time the parties argued the 

legal issues. Following the hearing, the Court determined that it would be 

inappropriate to grant preliminary injunctive relief. However, the parties 

were able to stipulate to many of the facts at the hearing and, in view of 

this, the parties were asked either to stipulate that the hearing be deemed 

a final hearing on a permanent injunction, or to file cross-motions for 

summary judgment. The parties agreed to follow the latter course. No hearing was held on the motions for summary judgment because no new contentions 

were raised by the parties which were not raised when the motion for a preliminary injunction was argued. 

1be foregoing specifics of the Donofrio case are of significance to the 

instant case only insofar as they provide a background to study Mr. Herb's 

state of mind on September 21, 1978, when he denied Inspector Zegley entry 

to the mine. Mr. Herb, the proprietor of a small anthracite mine 3/ in ,.-

Schuylkill County, ?ennsylvania, attended the September 1, 1978, hearing in 

1/ Neither Inspector Zegley nor Mr. Herb affirmatively testified that 

anthracite is mined at the No. 7 Drift Mine. However, both"the tenor of the 

questions addressed to them and the tenor of their responses thereto indicate 

that anthracite is mined there. 

3378 
the Donofrio case. He testified that he recalled hearing the oral argument 

on whether search warrants were required to conduct inspections, and recalled 

that Mr. Donofrio's position was that warrants were required (Tr. 59). He 

also recalled that the U.S. District Judge had denied the Secretary of Labor's 

motion for a preliminary injunction (Tr. 58), and knew, as of September 21, 

1978, that no decision had been issued in the Donofrio case (Tr. 58). 

Additionally, Mr. Herb's testimony makes reference to an organization 

amongst miners in the Pottsville, Pennsylvania, area known as the Independent 

Miners and Associates, an organization whose membership consists of owneroperators of large and small mines, mostly anthracite (Tr. 58, 60). According to Mr. Herb, during the summer and early fall of 1978, discussions were 

held among.rt"the owner-operators as to the need for search warrants. He 

testified that "we" received a memorandum in the mail in the form of a letter 

stating that it might be advantageous to ask the mine inspector for a search 

warrant (Tr. 58). Mr. Herb's testimony does not identify the drafters of 

this memorandum, and he did not know precisely why its drafters reached the 

conclusion stated therein. But it appears from his testimony that he believed 

the Donofrio case was somehow involved (Tr. 58-59). 

When Mr. Herb stated to the inspector ·that he would have to produce a 

search warrant prior to being granted entry to the mine, the inspector produced and read from a two page memorandum addressing the Barlow's decision, 

and attempted to persuade Mr. Herb that, under the Barlow's decision, a 

search warrant was not required for an inspection conducted by the Mine 

Safety and Health Administration (Tr. 14, 22-23). Mr. Herb again stated 

that without a search warrant, the inspector would not be permitted to 

enter the mine (Tr. 14). 

1ne foregoing facts and circumstances indicate that Mr. Herb's decision 

was based upon a bona fide uncertainty as to whether Inspector Zegley was 

authorized under the law to conduct an inspection of the No. 7 Drift Mine 

without a search warrant. The fact that the inspector attempted to persuade ,· 

Mr. Herb that the Barlow's decision did not require a warrant for a mine 

safety and health inspection is not persuasive proof that the denial of 

entry was accompanied by a culpable state of mind. It must be remembered 

that Hr. Herb had heard a Federal Judge deny the Secretary of Labor's motion 

for a preliminary injunction in the Donofrio case, and that Mr. Herb knew 

that no final decision had been entered in that case. 

Accordingly, it is found that Petitioner has failed to establish operator negligence by a preponderance of the evidence. 4/ 

4/ It appears that on September 21, 1978, Mr. Herb expressed his dissatisfaction with the civil penalty program (Tr. 16). Mr. Herb testified that he 

undoubtedly told the inspector that the fines were really hurting the small 

operators and that he didn't believe it was fair for small operators to have 

to pay fines for violations (Tr. 61-62). Petitioner points to these facts 

and argues that the denial of entry was "based on a calculated decision that 

3379 
D. Gra~ity of the Violation 

The inspector was unable to provide precise testimony as relates to the 

gravity of the specific denial of entry at issue in this case because, not 

having gained access to the mine, he did not know what conditions existed 

there (Tr. 17). 

I find that the denial of entry was a serious violation of the 1977 

Mine Act. One of the principal purposes of inspe~tions conducted pursuant 

to the provisions of the 1977 Mine Act is to detect violations of the mandatory health and safety standards and order their abatement so as to remove 

the associa.ted hazards from the miners' work environment, and to determine 

whether an imminent danger exists. Absent entry to the mine, these salutary 

and Congressionally mandated objectives cannot be achieved. 

Accordingly, it is found that the violation was serious. 

E. Good Faith in Attempting Rapid Abatement 

Inspector Zegley testified that Mr. Herb and another'individual came out 

of the mine at appr6ximately 9:40 a.m. on September 21, 1978, in order to 

obtain some ·timber. The inspector asked Mr. Herb whether he would permit 

entry into the mine, and Mr. Herb restated his position that entry would be 

:denied in the absence of a search warrant (Tr. 15). Accordingly, at approximately 9:45 a.m., Inspector Zegley issued Order No. 255012 pursuant to section 104(b) of the 1977 Mine Act based upon Respondent's failure to abate 

the violation cited in Citation No. 225011. The order of withdrawal states 

that "Dale Herb, owner and mine foreman, continued to deny Albert Zegley, an 

authorized representative of the Secretary, the right of entry into the No. 7 

Drift Mine for the purpose of conducting an inspection of the mine in 

accordance with the requirelilents of section 103(a) of the (1977 Mine Act], 

on [September 21, 1978], after the expiration of the reasonable time allowed 

for Mr. Herb to comply" (Exh. M-4). The inspector's testimony reveals that 

a brief conversation ensued following which Mr. Herb turned to his fellow 

worker and stated, "Well, I guess .we are done for the day" (Tr. 15). 

It appears that the above-mentioned proceeding in the United States 

District Court for the Eastern District of Pennsylvania was initiated 

fn. 4 (continued) 

it would be cheaper to operate in violation of the law because of the mandatory fines aspect of the (1977 Mine] Act's enforcement scheme" (Petitioner's 

Post-trial Brief, p. 5). The record does not support the assertion advanced 

by Petitioner. It may well be that the civil penalty program leaves a ,B.itter 

taste in the mouths of many small operators who perceive it as unfair ·and 

burdensome. It cannot be said that such perceptions would be at odds with 

human nature. But the fact remains that Respondent has proved that Mr. Herb's 

state of mind on September 21, 1978, was influenced by the controversy then 

surrounding the warrantless inspection issue. Petitioner has not produced 

probative evidence to counter this proof. (See also, Tr. 63.) 

3380 
against Respondent shortly after the September 21, 1978, denial of entry. 

The inspector testified that he returned to the No. 7 Drift Mine on a social 

visit after September 21, 1978, to inquire as to the health of the hoisting 

engineer's son who had been injured in a motorcycle accident. At that time, 

Hr. Herb apprised the inspector that he did not intend to work the mine 

until the litigation had ·been concluded (Tr. 50-52). However, the testimony 

of Mr. Herb points to only one 3-month period, from July through September 

of 1979, during which mining was not conducted. Additionally, Mr. Herb 

testified that mining was conducted during the winter of 1979-1980, and that 

mining was being conducted as of the date of the hearing (Tr. 79). 

gn·July 18, 1979, the District Court entered the above-mentioned injunction, and denied the defendant's motion for a stay pending appeal (Exh. M-1). 

On July 24, 1979, two Federal mine inspectors visited the No. 7 Drift Mine. 

The results of that visit are set forth in a memorandum dated August 6, 1979, 

from Federal mine inspector Charles C. Klinger to John B. Shutack, District 

Manager for Coal }line Safety and Health District 1. The memorandum states 

as follows: 

On Tuesday, July 24, 1979, James R. Laird, coal mine 

inspection supervisor, and the writer, Charles C. Klinger, 

coal mine inspector, went to the subject mine to make a 

regular Safety and Health inspection following informat.ion 

provided by Attorney Barbara Kaufmann on July 23, 1979, concerning a Federal Court Order enjoining said mine operator 

from denying entry to the mine to authorized representatives 

of the Secretary. Dale Herb, owner and operator of the mine, 

was on the surface at the mine when we arrived there at about 

9 a.m. We advised Mr. Herb of our reason for being there. 

Mr. Herb replied that he was aware of the court ruling and 

then he informed us that he was not working the mine because 

he did not have a hoisting engineer and that he was there 

only to pump water from the mine. He also stated that if we 

wanted to go into the mi~e to conduct any inspection we could 

do so because he did not intend to be in contempt; however, 

inasmuch as there was no hoisting engineer available and the 

mine was not working we could not make the inspection. 

Mr. Herb also stated that he did not plan to work the mine 

until all pending litigation with other small operators was 

resolved; however, he also said that if he changed his mind 

and decided to start working again he would telephone the 

Schuylkill Haven office before doing so. We departed the 

mine property about 10:30 a.m. 

(Exh. M-8). 

Inspector Zegley testified that the actions of Mr. Herb, as.set forth in 

the August 6, 1979, memorandum, did not constitute a denial of entry to the 

mine (Tr. 39). 

3381 
On February 22, 1980, the United States Court of Appeals for the Third 

Circuit affirmed the judgment entered against Respondent by the District 

Court (Exh. M-2). On April 28, 1980, Federal mine inspectors Michael C. 

Scheib and Charles C. Klinger attempted to inspect the No. 7 Drift Mine, 

but were denied entry by Mrs. Dorothy Herb, the wife of Dale Herb. The 

visit is described in a memorandum dated April 28, 1980, from the inspectors to John B. Shutack. The memorandum states as follows: 

On Monday April 28, 1980, as a result of Court Order, 

Civil Action No. 79-313, we, the writers, arrived at the subject mine about 9:30 a.m. to conduct an inspection of the 

mine. Upon arrival, Dorothy Herb approached the vehicle and 

before we had an opportunity to get out she yelled, "Don't 

bother getting out; get the hell out of here." Hr. Scheib 

informed her that we had a court order to conduct an inspection. Attempting to hand her a copy, she said, "I don't want 

that damn paper; take it and get the hell out of here." 

Scheib then stated, "We are required to give you a copy of 

the court order." ·At this time Scheib placed a copy of the 

court order on the ground. She then replied (yelling), "This 

is our property; don't let that damn paper lay there; if you 

don't take the damn paper, I'll shove it under your door." 

(Meaning at Scheib's residence.) She also asked, "Do you 

have your tape recorder turned on?" Scheib answered, "We 

have no need fo·r a recorder." She then replied, "Well, I 

have mine, and I also have a witness." However, we did not 

observe any other person in the immediate area. She again 

stated (yelling), "Now get the hell out of here and take your 

damn paper with you." At this time we departed from the 

mine property, leaving the court order lay on the ground. 

Entry to this mine has been denied to NSHA personnel since 

September 21, 1978. 

(Exh. M-7). 1/ 

The evidence presented reveals that Respondent was actively litigating 

the warrantless search issue in the Federal courts subsequent to September 21, 

1978. July 18, 1979, is deemed the significant date insofar as those proceedings affect the issue of good faith in the instant case because, on that date, 

the United States District Court for the Eastern District of Pennsylvania 

issued its injunction and denied the motion for a stay pending appeal. On 

February 22, 1980, the United States Court of Appeals for the Third Circuit 

affirmed the judgment. Accordingly, as of July 18, 1979, Respondent was 

faced with a Federal Court order requiring it to permit warrantless ins.piec-

.· tions of its mine. 

2f For approximately 1 to 1-1/2 years prior to the hearing, Mr. and Mrs. Herb 

were the only individuals working at the mine. Mr. Herb worked underground 

and Mrs. Herb worked on the surface as a hoist operator. (See Tr. 67.) 

3382 
I do not consider that the actions of the Respondent as relates to the 

violation at issue in this case constitute a lack of good faith in attempting 

abatement of the violation; since the Respondent did, as soon as the injunction was issued by the Court, offer to permit the inspectors to carry out an 

inspection. Until the injunction was issued, the Respondent apparently had 

a good faith belief that ·he had a right to object to a warrantless inspection. 

In this regard, it should be noted that the observation set forth in the last 

sentence of Exhibit M-7 is in error because the events of July 24, 1979, as 

set forth in Exhibit M-8, did not constitute a denial of entry to the mine. 

The events which occurred in April of 1980, at the time that Mrs. Herb 

refused to permit an inspection should actually be treated as an event 

separate from.the violation charged in this case. In the event MSHA would ,-

desire to take action as to that April 1980, incident, it could issue a 

separate citation. 

It should be kept in mind that the Respondent's proprietor, Mr. Herb, 

did state during the hearing in this case that he would now admit the 

inspectors if they wanted to carry out an inspection and that he actually 

invited certain MSHA officials to visit his mine in March of 1980 (Tr. 76-

79). 

F. History of Previous Violations 

J.{espondent has no history of previous violations for which assessments 

have been paid between September 29, 1976, and September 21, 1978 (Exh. M-6). 

Additionally, no evidence was presented establishing a history of previous 

violations for which assessments have been paid prior to September 29, 1976. 

Accordingly, it is found that Respondent has no history of previous violations cognizable in this proceeding. Peggs Run Coal Company, Inc., 5 IBMA 

144, 148-150, 82 I.D. 445, 1975-1976 OSHD par. 20,001 (1975). 

G. Size of the Operator's Business 

The evidence submitted by Petitioner reveals that Respondent operates 

one mine. Respondent produced 480 tons of coal in 1977, 1,688 tons of coal 

in 1978, and zero tons of coal in 1979 (Exh. M-5). Accordingly, it is 

found that Respondent is an extremely small operator. 

H. Effect of a Civil Penalty on Respondent's Ability to Continue in 

Business 

In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 

15,380 (1972), the Commission's predecessor, the Interior Board of Mine 

Operations Appeals, held that evidence relating to the issue as to whether 

a civil penalty will affect the operator's ability to remain in business is 

within the operator's control, resulting in a rebuttable presumption that 

the operator's ability to continue in business will not be affected by the 

assessment of a civil penalty. 

3383 
The Office of Assessments proposed a civil penalty in the amount of 

$800 for the violation. Respondent contends that a civil penalty assessment 

will affect its ability. to remain in business (Tr. 64-65; Respondent's Posttrial Brief, PP• 2, 4). 

The best available evidence indicates that Respondent is a sole proprietorship owned by Dale Herb. Respondent placed in evidence a copy of 

Mr. Herb's 1978 Federal income tax return (Exh. R-1), and Mr. Herb's testimony reveals that he had no occupation other than mining during the 1978 

tax year. The tax return reveals that Respondent's gross sales for 1978 

amounted to $48,756.68. Total deductions in the amount of $45,202.66 were 

claimed, yielding a net profit in the amount of $3,554.02. Accordingly, 

Mr. Herb's total income for 1978, as reflected on the tax return, was 

$3,554.02. 

However, it is significant to note that Mr. Herb was in the process of 

purchasing a home of undisclosed value as of the date of the hearing, but 

that he was not purchasing a home during 1978 (Tr. 63-64). It appears that 

he owned more than one automobile in 1978, and, to the best of his recollecti-0n, was paying on them in 1978 (Tr. 65). The record does not disclose 

the makes, models or years of these automobiles, or whether they were purchased new or used. He further testified that his household consists of 

six members,.!..·~·· Mr. and Mrs. Herb and four others (Tr. 65). There is no 

indication, however, as to how many, if any, of the four are dependent upon 

Mr. Herb for financial support. 

The fact that Mr. Herb was purchasing a home in 1980, but not in 1978, 

strongly implies that his financial condition improved after 1978. Accordingly, it must be concluded that the 1978 tax return does not accurately 

reflect Mr. Herb's current financial condition. Accordingly, I find that 

Respondent has failed to prove that the assessment of a civil penalty in 

the amount set forth in Paragraph VIII of this decision will affect Respondent's ability to remain in business. 

VI. Conclusions of Law 

1. Herb Coal Company and its No. 7 Drift Mine have been subject to the 

provisions of the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. Federal mine inspector Albert F. Zegley was a duly authorized representative of the Secretary of Labor at all times relevant to this pro~eding. 

·4. The violation charged in Citation No. 225011 is found to have 

occurred as alleged. 

5. The oral determination made during the hearing denying Respondent's 

motion to dismiss is AFFI&.~ED. 

3384 
6. All of the conclusions of law set forth in Part V of this decision 

are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Both parties filed post trial briefs. Such briefs, insofar as they can 

be considered to have contained proposed findings and conclusions, have been 

considered fully, and except to the extent that such findings and conclusions 

have been expressly or impliedly affirmed in this decision, they are 

rejected on the ground that they are, in whole or in part, contrary to the 

facts and law or because they are immaterial to the decision in this case. 

VIII. Penalty Assessed .,-

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

penalty is warranted as follows: 

Citation No. Date Section Penalty 

225011 9/21/78 103(a) $100 

ORDER 

A. The oral determination made during the hearing denying Respondent's 

motion to dismiss is AFFIRMED. 

B. Respondent is ORDERED to pay a civil penalty in the amount of $100 

within 30 days of the date of this decision. 

Law Judge 

Distribution: 

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) 

Harren Vogel, Esq., Thomas B. Rutter, Ltd., 872 Public Ledger Building, 

Independence Square, Philadelphia, PA 19106 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

3385 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DEN~.COLORADO 80204 

llUV 2 0 1980 ~~~~~~~~~~~~~~~~~~) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

'CIVIL PENALTY ACTION 

DOCKET NO. WEST 79-397-M 

Petitioner, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

ASSESSMENT CONTROL NO. 05-03209-05001 

v. DOCKET NO. DENV 79-483-PM 

ASSESSMENT CONTROL NO. 05-02994-05001 

RALPH FOSTER AND SONS, 

Respondent. 

~~~~~~~~~~~~~~~~~~·> 

APPEARANCES: 

MINE: ERDA C G27 and MINERAL 

CHANNEL NO. 12 

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

United States Department of Labor, Denver, Colorado 

for Petitioner 

Robert Foster, appearing pro se, Grand Junction, Colorado 

for Respondent 

Before: Judge John J. Morris 

DECISION 

In these civil penalty proceedings Petitioner, the Secretary of Labor, on 

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

respondent violated two safety regulations promulgated under the authority of the 

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

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

Colorado on May 19, 1980. 

The parties did not file post trial briefs. 

ISSUES 

The following issues were raised by respondent: - I. Whether the Federal Mine Safety and Health Act violates Article I, 

Section 8(a) of the United States Constitution. 

II. Whether respondent is entitled to a jury trial. 

III. Whether respondent is subject to the Act. 

IV. Whether.respondent operated the mine in this contest, namely ERDA C G27. 

3386 
V. Whether respondent violated th~ regulations. 

DISCUSSION 

The jurisdictional issues must first be resolved before the merits of the 

cases can be discussed. 

I 

Respondent contends that the Act is illegal in establishing the Federal 

Mine Safety and Health Review Corrnnission. Respondent asserts the Connnission 

is part of th~.Executive Branch and therefore it is not inferior to the Supreme 

Court. Resf>ondent concludes that the authority of the Commission is in violation 

of Article I § 8 of the United States Constitution. 

Respondent's arguments lack merit. A Review Corrnnission ruling under the 

Act can be reviewed by the United States Courts of Appeals, 30 U.S.C. 816. The 

Supreme Court has authority over the various United States Court of Appeals. 

"With the right of administrative and judicial review carefully preserved, 

the mere fact that the initial adjudicative function has been conferred upon the 

the Commission does not bring this legislation into conflict with the principle of 

the separation of powers.'' McLean Trucking Co. V. OSHRC 503 F.2d 8 (4th Cir. 1974). 

II 

Respondent's claim that for various reasons he is entitled to a jury trial 

was ruled to be contrary to his views in the factually similar case of Atlas Roofing 

Company v. OSHRC 430 U.S. 442, 97 S. Ct, 1261 (1977). 

Ill 

The facts show that the product of respondent's mine, a yellow cake of 

uranium, can be used for atomic energy throughout the United States (Tr. 12, 13). 

Respondent is subject to the Act if the products of the mine enter Conunerce 

or affect Commerce. 30 U.S.C. 803. 

The above stated facts constitute sufficient evidence to establish that 

respondent is subject to the Act. Wickard v. Filburn, 317 U.S. 111 (1942); 

Marshall v. Kraznack, 604, F 2d 231 (3rd Cir. 1979). 

IV 

The final two issues require a review of the evidence in the cases. 

WEST 79-397-M 

In Citation 326566 respondent is charged with violating 30 CFR 57;15-4. :!./ 

!/ 57.15-4 Mandatory. All persons shall wear safety glasses, goggles, or 

face shields or other suitable protective devices when in or around an 

area of a mine or plant where a hazard exists which could cause injury 

to unprotected eyes. 

3387 
The evidence is conflicting and I find the following facts to be credible. 

1. The inspector observed two men without safety glasses drilling with a 

jackleg drill at a mine face (Tr. 8-10). 

2. Drilling without safety glasses presents numerous hazards (Tr. 11). 

3. The ERDA C G27 mine has not operated since 1973 (Tr. 38). 

The inspector identified the mine as ERDA C G27 and the citation described it 

by that name. Respondent states that ERDA C G27 has not operated since 1973. I 

find the respondent's testimony more credible. He has been mining in this area for 

forty years. In addition, there is nothing to support the inspector's testimony. 

Robert Foster's testimony and his sworn exhibit in October 1979 raise this same 

defense (R-2). 

Although a violation occurred, MSHA failed to prove the mine involved in the 

violation. Citation 326566 should be vacated. 

DENV 79-483-PM 

Citation 326433 

'!;_/ This citation alleges a violation of 30 CFR 57.14-1. The facts are 

uncontroverted. 

1. At the time of the inspection at Mineral Channel No. 12, a uranium mine, 

no persons were working underground (Tr. 13). 

2. The V belt drive pinch point was unguarded and exposed (Tr. 14). 

3. Shortly after respondent closed this mine the inspector arrived; respondent reported the mine was closed (Tr. 25, 36). 

4. Respondent had no intention of reopening the mine without remedying the 

defective condition. (Tr. 25). 

MSHA offered no evidence that this mine was operating. This fact in combination 

with respondent's evidence establishes that there was no exposure to any workers. 

Citation 326433 should be vacated. 

CONCLUSIONS OF LAW 

For the reasons stated I conclude that HSI~ failed to prove a violation of the 

above standards. 

ORDER 

Based on the foregoing fi.ndings of fact and conclusions of law, I hereby enter 

the following order: ....-

2/ GENERAL -- SURFACE AND UNDERGROUND 

57.14-1 Mandatory. Gears; sprockets; chains, drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; 

arid similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons shall be guarded. 

3388 
In WEST 79-397-M: 

Citation 326566 and all proposed penalties therefor are vacated. 

II'l DENV 79-483-PH: 

Citation 326433 and all proposed penalties therefor are vacated. 

- Distribution: 

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

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

Mr. Robert G. Foster, Ralph Foster and Sons, 2950 A 1/2 Road, Grand 

Junction, Colorado 81501 

3389 
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) 756-6225 

NOV 2 1 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. PENN 80-25-M 

A.O. No. 36-00125-05006 F 

KEYSTONE PORTLAND CEMENT COMPANY, 

Respondent 

Mine: Keystone Portland Cement 

Quarry and Plant 

DECISION 

Appearances: James Swain, Esquire, Office of the Solicitor, 

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

for Petitioner; 

Mark S. Refowich, Esq., Fishbone and Refowich, Easton, 

Pennsylvania, for Respondent. 

Before: Judge Edwin S. Bernstein 

On March 5, 1979, Barry Ettleman, an electrician apprentice, was electrocuted while working at an electrical panel at Respondent's plant. After 

an investigation, Petitioner alleged that Respondent violated the mandatory 

safety standard at 30 C.F.R. § 56.12-16. 1/ Respondent admitted that it violated the standard, and stipulated to four of the six criteria to be applied 

in determining the amount of a civil penalty under Section llO(i) of the 

Federal Mine Safety and Health Act of 1977 (the Act). A hearing was held on 

September 30, 1980, in Philadelphia, Pennsylvania, to determine the amount of 

the penalty to be assessed. ]:_/ 

1/ The standard provides: 

"Electrically powered equipment shall be deenergi~ed before mechanical 

work is done on such equipment. Power switches shall be locked out or other 

measures taken which shall prevent the equipment from being energized without 

the knowledge of the individuals working on it. Suitable warning notic~ 

shall be posted at the power switch and signed by the individuals who are 

to do the work. Such locks or preventive devices shall be removed only by 

the persons who installed them or by authorized personnel." 

2/ Petitioner's Assessment Office proposed a penalty of $8,000. Prior to 

the hearing, counsel for the parties proposed to settle this case for $4,000. 

I rejected the settlement as being too low, based upon the facts presented 

to me by counsel at a prehearing conference. 

3390 
Findings of Fact 

The parties stipulated, and I find: 

1. Respondent owns and operates a cement quarry and plant in Bath, 

Northampton County, Pennsylvania. 

2. Respondent's facility comes within the jurisdiction of the Act, and 

I have jurisdiction over this proceeding. 

3. Respondent violated 30 C.F.R. § 56.12-16 in connection with the 

death of B~rry Ettleman on March 5, 1979. 

4. -Respondent is a medium-sized operator with approximately 328,485 manhours of work per year. 

5. Between March 8, 1977, and March 7, 1979, Respondent was cited for 

36 violations under the Act, including one other violation of 30 C.F.R. 

§ 56.12-16. 

6. Rtspondent demonstrated good faith in abating the violation by stopping production for approximately five and one half hours while the relay 

circuit that caused Mr. Ettleman's death was removed and rewired. 

7. The assessment of a civil pepalty of $8,000 (the amount originally 

proposed by Petitioner), or even $10,000 (the maximum penalty allowed in 

this type of proceeding under Section llO(a) of the Act), will not affect 

Respondent's ability to remain in business. 

Mr. Marvin H. Bock, an electrical inspector for MSHA, and Robert L. 

Rough, an MSHA metal-nonmetal inspector, testified for Petitioner. Respondent did not present any witnesses on its behalf. However, acting under the 

authority of Section 113(e) of the Act 3/ and Rule 614 of the Federal Rules 

of Evidence, !!._/ I called John Flemscich:- an electrician and the $ole eyewitness to the fatality, to testify. 

3/ Section 113(e) states in part that the Commission's judges have the power to 

11compel the attendance and testimony of witnesses.and the production of books, 

papers, or documents, or objects * * *·" 

4/ Rule 614(a) of the Federal Rules of Evidence provides: "The court may, 

on its own motion or at the suggestion of a party, call witnesses, and all 

parties are entitled to cross-examine witnesses thus called." Rule 614(b) 

provides that the court "may interrogate witnesses, whether called by itself 

or by a party." 

3391 
Inspecto~ Bock testified that he had been with MSHA for 22 months as of 

the date of the hearing, and that previously he spent 24 or 25 years doing 

electrical work for Bethlehem Mines Corporation. He has been an electrician 

or electrician trainee since 1943. At the time of the accident, he was an 

inspector trainee with MSHA, having been with the agency less than eight 

months. 

Mr. Bock explained that on March 7, 1979, he and MSHA inspector Robert L. 

Rough visited Respondent's plant to investigate a fatality which occurred the 

previous night. The inspectors were taken by a plant official to the site of 

the palletizing machine where Mr. Ettleman had been electrocuted. Mr. Bock discovered a relay in the panel which was not shown on the company's electrical 

diagrams and was, in his opinion, added after the panel was installed. This 

was the part of the panel which electrocuted Mr. Ettleman. None of the people 

working at the plant at the time were aware of the relay's purpose. The relay 

was not controlled by the cutoff switch on the side of the panel, but by a 

power control located two floors above. Mr. Bock concluded that the relay 

was not original equipment, but may have been added by outside contractors. 

This would have been done at lea·st 12 years before the accident. The plans 

for the control panel were located in a pocket in the panel's door, but they 

were old, hard to read, and did not contain any indication that the relay 

existed. Mr. Bock thus referred to the relay as a "sneak relay," orie that 

no one was aware of. 

He stated that a handle on the cabinet doors contained a lock. Therefore, nobody was exposed to any danger unless he opened the cabinet with a 

key. 

When asked if there was any way that the operator 

have known of the condition, Mr. Bock replied: "There 

could have been known, because it wasn't on the print. 

put on the print by somebody." 

could have or should 

is no way that it 

It should have been 

Robert L. Rough, an MSHA metal-nonmetal inspector, accompanied Mr. Bock 

on March 7, 1979, and issued Citation No. 303262 to Respondent. 5/ Mr. Rough 

did not personally examine the equipment, but after talking to Respondent's 

5/ The citation was introduced into evidence as Petitioner's Exhibit A. It 

reads as follows: 

"The main 440 volt power and control disconnect switch for the palletizing 

machinery in the packhouse was turned off, but not locked out or tagged while 

men were working in this power and control cabinet. Subject switch was out of 

men's view while working in the cabinet because of the open cabinet doors. 

There was another source of 440 volt power entering the control panel thq,,t, 

was still energized while men were working on the control panel. There·"were 

no other preventative measures taken to prevent this equipment from becoming 

energized. The source of this other voltage was remotely located up two 

(2) flights of stairs, above the location of the panel the men were working 

at o II 

3392 
representatives, he concluded that they "weren't aware of this sneak source. 

They knew [about] it when they talked to their retired electrician." The 

"retired electrician" referred to by Mr. Rough was Mr. Michael Kapustic. 

Mr. Rough explained that 30 C.F.R. § 56.12-16 was violated since the 

switch controlling the power to the relay was not locked out. He added that 

although this is a fairly common violation, it often results in fatal injuries. 

It takes approximately 40 volts of power to cause a man's heart to stop; 

the voltage going through the relay which caused Mr. Ettleman's death was 

440 volts. . 

John Flemscich was the final witness, and the only one who was present ,- when the accident occurred. He is an "Electrician A" who has been employed 

by Respondent for approximately seven years. He described how he and 

Mr. Ettleman went to the palletizing machine's switchbox on the day in question to remedy a malfunction. The switchbox is located about nine feet off 

the ground. Mr. Ettleman was standing on a platform about three feet high and 

reaching up into the control panel while Mr. Flemscich worked down below. 

When Mr. Flemscich heard Mr. Ettleman scream, he knew immediately what had 

happened. His first impulse was to turn off the power switch next to the box, 

but he saw that it was already in the "off" position. When Mr. Ettleman fell 

away from the box, Mr. Flemscich called for an ambulance. 

Conclusions of Law 

It is not disputed that Respondent violated 30 C.F.R. § 56.12-16. It is 

also undisputed that Respondent was a medium-sized operator which was cited 

for 36 violations of the Act during the two-year period preceding the accident. The parties agreed that Respondent demonstrated good faith in abating 

this violation, and that the assessment of a civil penalty will not affect 

Respondent's ability to remain in business. 

Although the parties stated that MSHA initially found Respondent to be 

grossly negligent in connection with the fatality, "the evidence before me 

does not support such a finding. At the hearing, counsel for MSHA stated 

that Respondent "should hav~ known the condition existed in the exercise of 

ordinary care * * *·" Respondent conceded that it was "guilty of ordinary 

negligence and not gross negligence." The testimony of all the witnesses 

supported that conclusion. Respondent was negligent in locating the relay 

in the panel where it could cause an accident, in not designating the relay 

on the plans, ~nd in not having a cutoff switch any nearer than two building 

floors away. 

The gravity of the violation was great, since an accident would almost 

certainly result in a fatality. This is despite the fact that the switch 

was high off the ground and protected by cabinet doors so only a few 

electrical personnel could come into contact with it. 

339a 
Upon consideration of all the foregoing criteria, I assess a penalty of 

$4,500. §_/ 

ORDER 

Respondent is ·ORDERED to pay $4,500 in penalties within 30 days of the 

date of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

James Swain, Attorney, Office of the Solicitor, U.S. Department of Labor, 

Room 14480, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Marks. Refowich, Esq., Fishbone and Refowich, 505 Easton National Bank 

and Trust Company Building, P.O. Box 1099, Easton, PA 18042 (Certified 

Mail) 

6/ The assessment of a civil penalty of $4,500 is entirely consistent with my 

earlier refusal to approve a settlement of $4,000, as recommended by the parties, or in any amount less than the original $8,000 proposal. The refusal 

to accept a lower amount was based upon the information presented to me by 

counsel for the parties. Prior to hearing, Respondent's counsel stated that 

a "master electrician" stood by and watched for about 20 minutes until 

Mr. Ettleman touched the relay and was electrocuted. Also, at the prehearing 

conference, counsel failed to indicate that none of Respondent's personnel 

knew of the relay. When I asked counsel to otherwise justify the settlement, 

Mr. Refowich replied: "What can I say?" 

-

3394 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333W. COLFAX AVENUE . 

DENVER, COLORADO 80204 

IOV 2.4 1900 

) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

v. 

ELDEN AND -SANDRA WAIT, 

Petitioner, 

Respondent. 

DOCKET NO. WEST 79-171-M 

A/O NO. 04-04256-05001 

DOCKET NO. WEST 79-172-M 

A/O NO. 04-04256-05002 

MINE: GREEN DECORATIVE ROCK 

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

DECISION AND ORDER 

APPEARANCES: 

Alan M. Raznick, Esq., Office of the Solicitor, United States Department of 

of Labor, San Francisco, California 

for the Petitioner 

Elden L. Wait, RFD Box 8, Plymouth, California 

for the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF CASE 

This proceeding was brought pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a). The petition for assessment 

of civil penalty (now c.alled a proposal for a penalty, 29 CFR 2700. 27) was filed, 

June 11, 1979 alleging nine violations of mandatory safety standards contained in 

30 CFR Part 56. The violations were charged in citations issued to Respondent 

following an inspection of a mine in Amador Coun~y, California owned and operated 

by the Respondent. 

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

on September 9, 1980. Federal Mine Inspector Edward Knepper testified on behalf 

of the Petitioner. Elden Wait, owner and operator of the mine involved herein, 

testified on his own behalf. 

Subsequent to the hearing in this case and prior to the submission of post 

hearing briefs, the Respondent moved that the nine citations be dismissed based 

upon a recent decision of the Ninth Circuit Court of Appeals. ·Ray Marshall, 

Secretary of Labor, United States Department of Labor v. Elden Wait, Trading and 

d/b/a Elden Wait, Greenstone Quarry No. 78-2345. The Petitioner has indicated 

that in light of the above decision of the Ninth Circuit Court of Appeals, he 

does not object to the Respondent's motion for dismissal. 

3395 
In light of the foregoing, the above captioned cases are hereby DISMISSED. 

Virgil ¢i1Vai1 . 

Adrninisfrative Law Judge 

Distribution: · 

Alan M. Raznick, Esq., Office of the Solicitor, United States Department 

of Labor, 11071 Federal Building, 450 Golden Gate Avenue, Box 36017, 

San Francisco, California 94102 

M"·. Elden L. Wait, RFD Box 8, Plymouth, California 95669 

-

339G 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JACKIE RAY -llAHMONDS, 

v. 

NATIONAL MINES, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 .4 1980 

Complaint of Discrimination 

Applicant 

Dockeot: No. KENT 79-345-D 

No. 33 Mine 

Respondent 

FINAL ORDER 

On October 31, 1980, Applicant filed a Statement of Non-Satisfaction of 

Order, stating that Respondent has not complied with the decision and order 

issued on September 15, 1980. 

On August 14, 1980, a decision was issued in the subject proceeding 

holding Respondent in default. On September 15, 1980, a decision was issued, 

incorporating the allegations of the complaint as findings of fact. The decision issued on September 15, 1980, found that Respondent discriminated against 

Applicant by suspending Applicant on November 7, 1978, and discharging Applicant on November 9, 1978. 

On November 17, 1980, Applicant filed a proposed final order. Respondent 

has filed no response to the proposed order. 

CONSIDERING THE RECORD AS A WHOLE, IT IS HEREBY ORDERED that: 

1. Respondent shall offer Applicant, by·certified mail, reinstatement 

in Respondent's employment to the same position, or one equivalent to the 

position, which he held on November 7, 1978, with the seniority, status, 

classification, pay and work shift that he would have held and enjoyed had 

Respondent not terminated his employment as found in the decision of 

September 15, 1980. Such offer of reinstatement shall specify the time and 

place at which reinstatement shall be made effective, if accepted by Applicant, and such date shall not be sooner than 7 days nor greater than 10 days 

from the date the offer is delivered to Applicant. If Applicant accepts 

reinstatement, Respondent shall provide Applicant with necessary and adequate 

training or retraining to perform the duties of the position to which he is 

assigned. 

2. Respondent shall pay to Applicant back wages and interest at a rate 

of 10 percent per annum: (A) in the amount of $32,305.21, which have accrued 

3397 
from the date,, of discharge through September 26, 1980; and (B) such additional 

amounts as have accrued or shall accrue after September 26, 1980, and until 

Applicant is reinstated or, if Applicant fails to accept the offer of reinstatement provided in paragraph 1, above, until the date Respondent specifies (in 

the of fer of reinstatement) that Applicant may return to work. 

3. Respondent is entitled to deduct from back wages due Applicant under 

paragraph 2, above, any wages which Applicant received from other employment 

in the period for which back wages have accrued or shall accrue. Unemployment 

compensation shall not be deductible. 

4. Respondent shall pay to Applicant attorney's fees: (A) in the amount 

of $7,369, which have accrued through September 26, 1980, which amount is 

hereby found to be reasonable fo; such period; and (B) such additional attorney's fees reasonably incurred thereafter for, or in connection with, the 

continued prosecution of proceedings until the satisfaction of this order. 

5. Respondent shall pay to Applicant costs and expenses: (A) in 

the amount of $187.49, which have accrued through September 26, 1980, which 

amount is hereby found to be reasonable for such period; and (B) such additional costs and expenses reasonably incurred thereafter for, or in connection 

with, the continued prosecution of proceedings until the satisfaction of this 

order. 

6. Respondent shall expunge from Applicant's employment records all 

records of and references to the unlawful suspension on November 7, 1978, 

and the unlawful discharge on November 9, 1978. 

7. Respondent shall forthwith post: A copy of the decision of August 14, 

1980, a copy of the decision and order of September 15, 1980, and a copy 

of this order on the mine bulletin board, or at such other conspicuous place 

where notices are normally posted for employees, at the No. 33 Mine, and 

keep such copies so posted, unobstructed and protected from the weather for 

a consecutive period of at least 60 days. 

~~ WILLIAM 

' 

FAUVER, JUGE 

~ 

Distribution: 

Stephen A. Sanders, Esq., Counsel for Applicant, Appalachian Research 

and Defense Fund of Kentucky, Inc., P.O. Box 152, Prestonburg, KY,.-

41653 (Certified Mail) 

Ted J. Campbell, Esq., Counsel for Respondent, 400 Bank of Lexington 

Building, 101 East Vine Street, Lexington, KY 40507 (Certified Mail) 

3398 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

:133 W. Clll JAX AVFNUE 

DENVER, COLorrnrio 80204 

NOV 2 5 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. DENV 79-517-PM 

Petitioner, 

A/O No. 04-00113-05001 

v. ) 

GALLAGHER -AND BURK, INCORPORATED, 

) 

) 

) 

) 

Mine: Leona Quarry and Mill 

APPEARANCES : 

Carlson, Judge: 

Respondent. 

) 

Linda Bytof, Esq., 

United States Department of Labor 

11071 Federal Building, 

450 Golden Gate Avenue, P 0 Box 36017 

San Francisco, California 94102 

for the Petitioner, 

Joseph D. Ryan, Esq. 

Gallagher & Burk, Incorporated 

344 High Street· 

Oakland, California 94601 

for the Respondent. 

DECISION 

This cause was heard under the Federal Mine Safety and Health Act of 

1977, 30 USC § 801 et seq. ("the Act"), upon the Mine Safety and Health 

Administration's pet'Ttion for assessment of civil penalties for three 

violations of mandatory safety standards. Two of the alleged violations 

involved grounding of explosive magazines; the other a defective horn on a 

front-end loader. 

Neither party elected to file a post-hearing brief, but both made oral 

arguments at the close of the hearing. 

339D 
DISCUSSION OF VIOLATIONS 

AND PENALTIES 

Citations 374685 and 374686 - Grounding of Explosive Magazines. 

The undisputed evidence shows that respondent maintained two explosives storage magazines near the access road to its quarry. These steel 

structures, about 6 feet high and 6 feet square, rested on steel skids. In 

one, respondent stored 450 pounds of dynamite; in the other it stored 250 

detonating caps. 

Inspector George Costanich examined the magazines on January 2, 1979, 

and concluded neither was grounded as required by 30 CFR 56.6-20(e), which 

provides: 

56.6-20 Mandatory. Magazines shall be: (e).Electrically 

bonded -and grounded if constructed of metal. 

Inspector Costanich cited respondent based upon his belief that 

grounding required that the magazines be connected directly to the earth 

by a heavy wire attached to a metal rod driven into the earth •. !/ He 

testified that grounding is necessary to dissipate stray discharges of 

static electricity, particularly lightning. 

It was undisputed that such discharges could ignite the explosives in 

the magazines, and that the resulting concussion and flying debris could 

inflict serious injury to employees on the nearby roadway or coming and 

going from the magazines themselves. 

Respondent did not concede that the magazines were ungrounded. Rather, 

counsel sought to establish through cross-examination and argument that it 

was enough that the skids were in contact with the ground. Respondent 

succeeded in showing that the Secretary's inspector lacked any profound 

expertise in the theory of elecirical phenomena. On the other hand, 

Inspector Costanich did demonstrate extensive practical experience with 

static grounding practice in storage of explosives. He indicated that 

wire-and-rod grounding technique was universal in other magazines he had 

inspected for MSHA, and those he had known while handling explosives as ~ 

miner. He supported his view by reference to Bulletin No. 256, "Static 

Electricity", a safety publication of the United States Department of Labor 

(ultimately admitted as respondent's exhibit 2) (Tr. 116). At page 7 that 

publication defines "grounding" as " •.. the connecting of a conductive 

body to earth by means of a conductive wire." (Emphasis added.) Costanich 

also relied upon a booklet entitled_ "Hazard of Electricity", published - by 

1/ Costanich conceded that the magazines were bonded, i.e. that all metal 

components were connected to each other by conductive materials. 

3'f00 

, 

~ 

l 

j 
the American Oil Company (respondent's exhibit 3) which defines bonding and 

grounding thusly at page 37: 

Bonding means connecting two objects ~ogether with metal, 

usually a piece of copper wire. Grounding consists of 

connecting an object to earth with metal_, and again a 

piece of copper wire is used. The connection to earth is 

usually made to a ground rod or underground water piping. 

Respondent does not challenge the authoritative quality of either source. 

I conc~ude that petitioner's understanding of this standard is correct: 

that a m~al magazine merely resting on the earth is not "grounded." In 

doing so, I specifically reject respondent's suggestion that the standard is 

too vague for enforcement. The term "grounded" has a commonly accepted 

meaning when applied to electrical safety. 

In this connection, one further matter deserves mention. Respondent 

points to this statement in the American Oil booklet at pages 28 and 29 

relating to storage structures for flammable liquids: 

Special grounding of steel tanks is not needed for 

lightning protection. Tanks resting on the earth, 

or even on concrete rings with piping disconnected, 

have such low electrical resistance to ground that 

special grounding is not necessary. 

Respondent contends its steel magazines are likewise adequately protected 

without a wire-and-rod arrangement. The argument is unpersuasive. The 

language on which respondent relies clearly sets out an exception to 

ordinary grounding practice. The standard for explosive magazines, by 

contrast, expressly mandates grounding; and we must assume that that means 

adherence to common grounding practice. Had the drafters of the standard 

believed that metal magazines needed no grounding beyond simply resting on 

the earth, they would not have mentioned grounding at al 1. 

Petitioner initially proposed a penalty of $40.00 in connection with 

each of these citations. The record shows that respondent is a small 

operator and has no prior history of violations (Tr. 6; respondent's answers 

to requests for admissions numbers 15 and 16) •. ~/ The violations were 

abated promptly (Tr. 41). The possibility of an accident was relatively 

remote. Nevertheless, a penalty of $40.00, as proposed in each case, is 

warrtlnted. Lightning or stray electrical currents could have caused an 

explosion in either magazine resulting in serious injury or death to several 

employees (Tr. 35-38). Potential exposure to the hazard was significant 

because employees were required to inspect the magazines regularly and 

often travelled along the mine access road which runs nearby (Tr. 39). 

Respondent's ability to continue in business would not be affected by 

2/ These factors have also been considered in determining an appropriate 

penalty in connection with Citation 374687. 

3401 
imposition of this penalty (Tr. 6; respondent's answer to request for 

admission number 17). 

Citation 374687 - - Inoperable Horn 

The undisputed evidence shows that on the afternoon of the inspection, 

respondent was using a front-end loader which had an inoperable horn. The 

90,000 pound machine was loading crushed rock at the time. Inspector 

Costanich cited respondent with a violation of the mandatory s·tandard at 30 

CFR § 56.9-87, which provides: 

....- Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up. 

The inspector testified that he asked the operator of the loader to 

sound the horn, which is activated by a floor mounted button, and that it 

did not function. The operator told him that he did not know when the horn 

ceased to work, as he had had no occasion to use it that day. 

According to the inspector, the horn was intended to warn pedestrians 

or other vehicles in the path of the machine. The loader had a functioning 

reverse alarm which he explained would not serve as a warning while the 

machine was moving forward. 

None of these assertions were challenged by respondent. Its counsel 

suggested, however, that the Secretary did not prove any element of neglect. 

Under well established principles, however, negligence is not an element 

necessary for proof of violation of a mandatory standard; it bears only upon 

penalty. United States Steel Corp., 1 FMSHRC 1306, 1307 (September 17, 

1979). 

Because of language in the standard relating to reverse alarms, 

respondent further suggested that the standard does not clearly indicate 

that a manually operated alarm for forward motion -- an ordinary vehicle 

horn -- is necessary. I disagree. The words of the •tandard plainly 

require an. automatic reverse alarm as an additional precaution for equipment 

with an obstructed view to the rear. 

Respondent, through interrogation of the inspector, also seemed to 

question the utility of the horn. Would an operator, busy with gear changes 

and brakes, for example, be able to spare a foot for a horn button? This 

argument goes to the wisdom of the standard, a matter committed by law to 

the discretion of the Secretary. 

Finally, respondent argued that its loading operation was beyond the 

jurisdiction of the Act. In this regard it relied on an interagency 

agreement between the Mine Safety and Health Administration and the 

Occupational Safety and Health Administration (respondent's exhibit 1). The 

inspector did acknowledge that the loader in question was loading stockpiled 

rock into commercial trucks. Respondent points to nothing i"n the Act or the 

3402 
agreement, however, suggesting that the loading activity is not covered by 

MSHA authority. The Act in Section 3(h)(2)(C) defines "coal or other mine" 

to include "lands ••. used in ... the work of preparing coal or other 

minerals." "Preparing" is nowhere defined except in Section 3(i) which 

defines "work of preparing • . . coal" to include storage and loading. What 

is true for coal must be likewise true for other minerals. I find nothing 

in the facts of this case or the interagency agreement indicating that 

respondent's loading activity falls outside MSHA jurisdiction. The 

violation occurred and a penalty is warranted. 

Petitioner initially proposed a penalty of $18.00 in connection with 

this citation. The hazard created was potentially serious. If the driver 

were fo~ some reason unable to stop the truck, he could not have warned 

other vehicles or people in its path. Injuries res~lting fro~ a collision 

could, of course, be serious. The inspector also testified that he observed 

many vehicles in the area (Tr. 51). Although the inspector admitted that he 

did not know why or how long the horn had been inoperative (Tr. 73), the 

relatively low proposal, in my opinion, suggests that that factor was considered in determining the initial assessment. A penalty of $18.00 will 

therefore be assessed. 

ORDER 

Pursuant to the foregoing, it is ORDERED that the penalty proposals for 

Citations 374685, 374686, and 374687 are affirmed, and that the following 

penalties shall be paid: for Citation 374685, $40.00; for Citation 374686, 

$40.00; and for Citation 374687, $ 18.00. It is further ORDERED that 

respondent shall pay the penalties within 30 days of this order. 

Judge 

Distribution: 

Linda Bytof, Esq., Office of the Solicitor, U.S. Department of Labor, 

11071 Federal Building, 450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

Joseph D. Ryan, Esq., Martin & Ryan, Ordway Building, Suite 785, 

One Kaiser Plaza, Oakland, California 94612 

Mr. T. T. Rolleri, Jr., Gallagher & Buck, Incorporated 

344 High Street, Oakland, California 94601 

340:1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. cnu AX AVENUE 

DENVER, COLORADO 80204 

NOV· 2 ~ 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (HSHA) ) 

) 

Petitioner, ) 

) 

v. ) 

) 

JOHN PETERSEN, AN INDIVIDUAL, ) 

d/b/a TIDE CREEK ROCK PRODUCTS, ) 

) 

Respondent. ) 

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

Appearances: 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-300 

A/O NO. 35-02479-05001 

MINE: Tide Creek Pit 

Ernest Scott, Jr., Esq., Office of the Solicitor, 

U. S. Department of Labor, 8003 Federal Office Building, 

Seattle, Washington 98174 

for the Petitioner 

Agnes Petersen, Esq., Vannatta and Petersen, Attorneys at Law, 

222 South First Street, St. Helens, Oregon 97051 

for the Respondent 

Before: Administrative Law Judge Virgil E. Vail 

DECISION AND ORDER 

This proceeding was brought pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). The petition for 

assessment of civil penalty (now called a proposal for penalty, 29 C.F.R. 

2700.27) was filed on September 14, 1979 alleging two violations of 

mandatory safety standards contained in 30 C.F.R. Part 56. The violations 

were charged in citations issued to the respondent following an inspection 

of the Tide Creek Pit on March 22, 1979. ,.-

Purs.uant to notice, a hearing on the merits was held in Portland, 

Oregon on June 10, 1980. Federal Mine Inspector Robert W. Funk testified 

on behalf of the petitioner. John Allen Petersen, owner of the Tide Creek 

Pit Mine, testified for the respondent. 
FINDINGS OF FACT AND CONCLUSIONS 

Findings of Fact are enumerated 1 through 9. 

1. At all times relevant to these proceedings, Respondent operated an 

open pit rock crushing operation near Deer Island, Oregon (Tract 12). 

2. Respondent has not had a significant history of prior violations 

(Tr. 60). 

3. The Respondent's business consists of about 100,000 cubic yards of 

bulk rock per year. There are two employees besides the owner who works 

with the employees, and the pit usually operates 8 hours a day, 5 days a 

week ~r: 13, 20). 

4. The proposed penalties are appropriat~ for the size of ~he operator's business and will not affect Respondent's ability to continue in 

business. 

5. The Respondent promptly took steps_ to abate the citations and 

demonstrated good faith in achieving rapid compliance with the relevant 

standards. 

Citation Number 347916 

This citation alleges a violation of 30 C.F.R. § 56.12-30.1 

6. The drive motor of the conveyor below the shaker screen did not 

have a weather head (Tr. 39). 

7. There was a danger of the wiring shorting out against the frame, 

which could cause anyone coming 1n contact with the frame to be 

electrocuted (Tr. 43 - 44). 

This citation should be vacated. The issue is whether a potentially 

dangerous condition existed in the wiring running to the electrical motor 

on the conveyor below the shaker screen. The inspector testified that he 

could not remember whether the wiring had been insulated with anything, 

such as tape or rubber (T~. 40). He testified that, according to the law, 

a weather head must be installed on the drive motor (Tr. 39). He could not 

remember the relationship of the wires to the frame (Tr. 40). 

The Respondent testified that placing the wires inside a box caused 

the covering on the wires to rub against the box, due to the shaking of 

this machine, which would eventually expose the wires and cause an 

electrical short. He had wrapped the wires coming out of the motor with 

friction tape and then with rubber from an innertube. The 3 wires were 

then wrapped again in rubber from an innertube to keep out water (Tr. 

22). 

1/ 56.12-30 Mandatory. When a potentially dangerous condition is found 

it shall be corrected before equipment or wiring is energized. 

3405 
A review of standard 30 C.F.R. 56.12-30 is not particularly helpful in 

determining what is required in an electrical hookup of the type involved 

herein. The situation to which the standard is directed does address what 

potentially could be a very dangerous and possibly a fatal accident. 

However, the Petitioner has not sustained his burden by proving that the 

type of electrical attachment used by the Responderit did not satisfy the 

requirements of the standard. Inspector Funk testified that the electrical 

hnokup should bave had a weatherhead installed on the motor, according to 

the law (Tr. 39). I am unable to determine where the standard that was 

cited, or other relevant law supports his statement. Therefore, I find 

that the reason he gave for issuing the citation is unfounded. 

Citation Number 34917 

This citation alleges a violation of 30 C.F.R. 56.14-01. 2 

8. The tail pulley of the return conveyor to the L J shaker screen 

did not have a guard (Tr. 45). 

9. P~rsons could come into contact with the tail pulley while 

cleaning up spillage around the conveyor and could be injured (Tr. 46). 

This citation should be affirmed. The Respondent testified that there 

is a trail or pathway alongside the equipment where the pulley involved 

herein is located. However, he. testified that persons would not walk by 

the pulley while the plant was operating because they would get splattered 

with water and mud, and that the plant would normally be shut down if one 

of the employees was going to clean out around the pulley (Tr. 57, 66). 

The standard, 30 C.F.R. 56.14-1, is very explicit in stating that 

guards are required where moving machine parts may be contacted by ~ersons. 

I am persuaded by the evidence that the facts in this case present a situation where an employee cleaning up around the pulley, walking by the 

pulley or a visitor to the plant walking by the pulley could become 

entangled therein. It is not a sufficient defense to prove that the 

likelihood of such an accident is remote. Rather, it is important to 

consider that the risk of such an irijury exists, and the seriousness of the 

consequences are such that guarding is required. In order. to abate this 

citation, a guard was installed on the pulley. 

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. 

340G 
CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of this proceeding. At all times relevant to 

this proceeding, Respondent was subject to the provisions of the Federal 

Mine Safety and Health Act of 1977. 

The testimony of the Respondent, on questions of his business 

operations, convinces me that the Respondent does operate a mine titled the 

Tide Creek Pit and that the products from said mine enter commerce or 

affect commerce within the meaning of the Federal Mine Safety and Health 

Act of,J.977, 30 U.S.C. Section 803. The mines subject to the Act are those 

whose products enter commerce or those whose operations or products affect 

commerce. This provision is to be given a very broad interpretation. 

Marshall v. Kraynack 614 F. 2d 231 (3rd. Cir. 1979). Congress has found 

that health and safety accidents in mines disrupt production and cause loss 

of income to operators which in turn impedes and burdens commerce. 30 

C.F.R. Section 80l(f). Accordingly, even if a mine's products remains 

solely within a state, any disruption of its operations due to safety 

hazards affects interstate commerce. Marshall v. Kilgore, 478 Supp. 4 

(E. D. Tenn 1979); Marshall v. Bosack 463 F. Supp. 800 (E.D. Pa. 1978). 

2. Respondent did not violate the standard cited in Citation number 

347916. 

3. Respondent violated the standard cited in Citation number 347917. 

4. Respondent, in its answer to the Petitoner's petition for 

assessment of penalty, requested a jury trial, attorney fees of $1,000.00 

and court costs. 

In an analogous situation involving the Occupational Safety and Health 

Act, which is similar to the Federal Mine Safety and Health Act of 1977, 

the United States Supreme Court concluded that the Seventh Amendment to the 

U. S. Constitution, providing for jury trials in certain cases, does not 

prevent Congress from assigning adjudication of newly created statutory 

"public rights" to administrative agencies in which jury trials would be 

incompatible. The Court concluded that, "Congress found the conunon law and 

other existing remedies for work injuries resulting from unsafe working 

conditions to be inadequate to protect the Nation's working men and women. 

It created a new cause of action, and remedies therefore, unknown to the 

common law, and placed their speedy and expert resolution of the issues 

involved. The Seventh Amendment is no bar to the creation of new rights or 

to their enforcement outside the regular courts of law." Atlas Roofing 

Company, Inc. v. OSAHRC, 430 U.S. 442 (1977). Further, request for 

attorney fees and court costs are not warranted in this case. 
ORDER 

Citation number 347916 is hereby vacated .. Based upon the criteria 

set forth in section llO(i) of the Act, the penalty of $44.00 is determined 

to be the proper amount for Citation number 347917. It is ordered that the 

Respondent pay the amount of $44.00 within 30 days of this Decision. 

Distribution: 

Agnes Marie Petersen, Esq. 

Vannatta and Petersen 

222 South First Street 

St. Helens, Oregon 97051 

Virgil E~·ivail 

Adminis,t.fative Law Judge 

Ernest Scott, Jr., Esq., Office of the Solicitor 

U. S. Department of Labor, 8003 Federal Office Building 

Seattle, Washington 98174 

3408 

-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. CCU AX AVENUE 

DENVER, COLORAOO 80204 

fiOV 2 5 1900 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

.Petitioner, 

v. 

SALT LAKE -COUNTY ROAD DEPARTMENT, 

Respondent. 

) CIVIL PENALTY PROCEEDING 

) 

) 

) DOCKET NO. WEST 79-365-M 

) 

) 

) MSHA CASE NO. 42-00890-05001 

) 

) 

) MINE: Welby Pit 

) 

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

APPEARANCES: 

Robert Bass, Esq., Office of the Solicitor, 

United States Department of Labor, Kansas City, Missouri 

for the Petitioner 

Kevin F. Smith, Esq., Salt Lake County Attorney Office, 

Salt Lake City, Utah 

for the Respondent 

Before: Administrative Law Judge Virgil E. Vail 

STATEMENT OF THE CASE 

This case is before me upon a petition for assessment of civil penalty 

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

30 U.S.C. § 801 et seq. [hereinafter referred to as "the Act"]. On 

March 27, 1979, an official representative of the Mine Safety and Health 

Administration (MSHA) issued citation number 336350 to the respondent for 

an alleged violation of mandatory safety standard 30 C.F.R. 56.14-11. 

The citation charged that the respondent failed to have a feeder pulley 

guard in place. A penalty of $60. 00 was proposed by the MSiIA Office of 

Assessments. 

On August 28, 1979, respondent notified the Mine Safety and Health 

Administration that it wished to contest the alleged violation. Petitioner 

filed a proposal for penalty and motion to accept late filing of proposal 

for penalty on December 10, 1979. Petitioner stated that his reason for 

the delay in filing the proposed penalty was a lack of clerical personnel 

and a high volumn of cases. 

1/ 56.14-1. Mandatory. Gears; &prockets; 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. 

340U 
On January 11, 1980, respondent filed an "answer" and a mot ion for summary 

decision requesting an order dismissing said proposal for penalty by reason 

of the late filing. 

A hearing was held on July 23, 1980 in Salt Lake City, Utah. At that 

time the parties stipulated to a settlement agreement, as to the penalty 

assessment for the violation involved herein; subject to a determination of 

the three issues raised by the respondent in its motion for summary 

decision. 

Issues: 

The issues in this case are as follows: 

(1) Whether the gravel pit involved herein and operated by Salt Lake 

County is exempt from regulation under the Federal Mine Saf~ty and Health 

Act of 1977, (2) whether the inspection was lawfully conducted, and, if 

so, (3) whether the proposal for penalty should be dismissed due to the 

late filing thereof. 

DISCUSSION 

1. Whether the pit in question is under the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

The premises involved herein are described as a small "mine" from 

which sand and gravel are extracted by the respondent, Salt Lake County 

Highway Department, for use on local roads within the State of Utah. The 

respondent did not sell its products outside the State of Utah (Tr. 5). 

The respondent contends that the Tenth Amendment to the United States 

Constitution prohibits Congress from exercising authority over integral 

governmental operations of a state by invoking the commerce clause. More 

specifically, respondent argues that the building and maintaining of roads 

is an "integral function" of the state, and free from Congress' power under 

the commerce clause. As authority, respondent cites the United States 

Supreme Court case of National League of Cities v. Usery, 426 U.S. 833 

(1976). Respondent concedes that not all of a state's proprietary 

activities are exempt from regulation, but contends that construction and 

maintenance of public roads, including raw materials needed for such 

construction and maintenance, are integral governmental services. The 

petitioner argues that sand and gravel pits operated by the state and local 

governments are subject to the Act. 

In National League of Cities v. Usery, supra, the Supreme Cour_t.held 

as unconstitutional the m1n1mum wage and overtime provisions of th"e Fair 

Labor Standards Act, as applied to employees of state governments. The 

Court held that such provisions take away the state's freedom to structure 

integral operations in areas of traditional government functions and are 

not within the authority granted Congress by the commerce clause. 

3410 
The question here then is whether the respondent's operation of a 

gravel pit that is used in furnishing materials for maintenance of local 

roads is a traditional, integral, government service. 

The Court in National League of Cities v. Usery, supra, conceded that 

a ~tate's operation of a railroad would not be exempt from federal 

regulations. This upheld decisions in two earlier cases, United States v. 

California, 279 U.S. 182 (1936), and Parden v. Terminal Railroad Company, 

377 U.S. 184 (1964) involving state railroads in conjunction with 

state-owned and operated docks. 

A re~iew of a number of federal court decisions considering this issue 

indicat~ that each factual situation must be closely scrutinized. In 

Friends of the Earth v. Carey, 552 F.2d 25 (2nd Cir. 1977), the Court 

determined that certain provisions of the Federal Clean Air Act could be 

enforced against the Stat~ with regard to traffic control. A different 

decision was reached in Jordon v. Mills, 473 F. Supp. 13 (E.D. La. 1979) 

where the Court held that a state run store in the prison was not subject 

to antitrust statutes, but was a fundamental state function and an integral 

part of running a prison. 

The issue of whether state owned and operated sand and gravel pits are 

under the jurisdiction of MSHA and whether enforcing the Act against the 

state violates the Tenth Amendment was previously raised in a Commission 

proceeding decided by Judge Laurenson in the case of Secretary of Labor, 

Mine Safety and Health Administration (MSIIA) v. New York Department of 

Transportation, Docket Nos. YORK 79-21-M, WILK 79-102-PM, YORK ·S0-2-M, 

(July 3, 1980). This case involved a similar factual situation, wherein 

the state extracted and stored sand for highway maintenance. In addressing 

the proposition that the Tenth Amendment prevented MSHA from enforcing the 

Act against state operations, Judge Laurenson concluded "(T)hat mining sand 

and gravel is not a traditional governmental function; maintaining roads is 

such a function. cf., Friends of the Earth, supra. Comparing the facts in 

this case with the-federal decisions, mining is not an integral or 

essential part of the s'tate function." 

In a Commission proceeding involving the same question of whether a 

pit operated by a political subdivision of the State of Washington was 

exempt from MSHA reP-ulat ion, Judge Morris held that mining was not an 

integral governmental function. He stated as follows: "The maintenance of 

county roads is an essential and traditional service of local governments. 

The ope rat ion of a mine is not . . . . The operation of a sand and gravel 

pit is not an activity that is necessary to the separate and independent 

existence of a state." Secretary of Labor, Mine and Safety aod Health 

Administration, (MSHA) v. Island County Highway Department, DOCKET No. 

WEST 79-372-M. (November, 1980) I agree with the conclusion reached in 

these two cases. 

The operation of a sand and gravel pit is not necessarily a typical 

or required function of the states or their political subdivisions. The 

products used from such operations, althouRh required in the construction 

and maintenance of roads, is usually available from other sources in the 

3411 
state. I find an analogy here with the decision in United States v. 

California, supra, relating to the railroads and their relationship to the 

state owned.docks. I find that the respondent's operation of a gravel pit 

is not an integral governmental function and that such pit is therefore 

subject to MSHA regulation. 

2. Whether the inspection here~n was lawfully conducted 

The respondent argues that a judicially sanctioned permit was 

required before the Secretary's inspector could lawfully enter the mine 

premises. As authority for this position, respondent cites Marshall v. 

Barlow's, Inc., 436 U.S. 307 (1978). I find that the established law is to 

the contrary. In Marshall v. Nolichuckey Sand Company, Inc., 606 F. 2d 693 

(6th Cir. 1979), cert. denied, 100 S.Ct. 1835 (1980), a warrantless 

inspection of a sand and gravel "mine" under the Act was upheld. The Court 

in that case stated that the enforcement needs of the mining industry made 

provisions for warrantless inspections reasonable. Further, in Marshall 

v. Stoudts Ferry Preparation Company, 602 F. 2d 589 (3rd Cir. 1979), a 

warrantless inspection of the company's sand and gravel preparation plant 

was found to have satisfied the reasonableness standard as set forth in 

Marshall v. Barlow's, Inc., supra. 

3. Whe~her the proposal for penalty should be dismissed due to 

the late filing thereof. 

The respondent argues that the proposal for penalty should be dismissed on the grounds that it was untimely filed and is in violation of the 

law and regulations, particularly as to the time limits for bringing a 

case, as set forth in Title 29 of the Code of Federal Regulations. 

Respondent asserts that the time limits set out in 29 C.F.R. 2700.27 2 

are mandatory and should apply equally to all parties. 

The Petitioner concedes that he did not file the required proposal for 

penalty within the 45 day limit prescribed by Commission Rule 27. However, 

the Petitioner argues that good cause existed for the untimely filing due 

to an extraordinarily high case load and lack of clerical personnel to 

operate a word processing machine to accomplish necessary typing. He cites 

29 C.F.R. 2700.9 3 of the Commission Rules as providing broad 

discretion for extending time for late filing. 

2/ 2700.27 Proposal for a penalty. (a) When to file. Within 45 days 

of receipt of a timely notice of contest of a notification of proposed 

assessment of penalty, the Secretary shall file a proposal for a .• -

penalty with the Commission. 

3/ Section 2700.0 Extension of Time. The t irne for filing or serving any 

document may be extended for good cause shown. A request for an 

extension of time shall be filed 5 days before the expiration of the 

time allowed for the filing or serving of the document. 

3412 
A review of past decisions of the Federal Mine Safety and Health 

Review Commission confirms Petitioner's statement that this issue has not 

yet been decided by the Commission. However, the same factual situation 

under a similar Act was addressed in Jensen Construction Company of 

Oklahoma, Inc. v. OSAHRC and Marshall, 597 F. 2d 246 (10th Cir. 1979) 

wherein the Secretary failed to file a formal complaint within 20 days 

after receiving notice that Jensen was contesting the issued citations. 

The Secretary's formal complaint was not filed until 48 days after the 

Secretary received the notice of contest. The particular rules governing 

the time within which the Secretary shall file a complaint with the 

Commission under the Occupational Safety and Health Review Commission's 

rules of procedure are as follows: 

- "29 C.F.R. 2200.33 (a)(l). 

The Secretary shall file a complaint with the 

Commission no later than 20 days after his 

receipt of the notice of contest. 

29 C.F.R. 2200.5 

Requests for extensions of time for the filing 

of any pleading or document must be received in 

advance of the date on which the pleading is due 

to be filed." 

The Secretary's excuse, in that case, for the untimely filing of his 

complaint was an extraordinarily large caseload. The Tenth Circuit Court 

of Appeals upheld the Administrative Law Judge's finding that there was no 

demonstrated prejudice to Jensen. The Court stated that the regulations 

vest broad discretion in the Commission or the Administrative Law Judge 

concerning the consequences to be suffered in the event of a failure to 

timely file any pleading permitted by such regulations. The AdministrativP 

Law Judge in that instance found no "demonstrated prejudice" and under such 

circumstances was disinclined to impose the extreme sanction of vacating 

the citation. 

I find the above decision analagous to the issue here. 

has shown no demonstrated prejudice resulting f~om the late 

proposal for a penalty. 

The respondent 

filing of the 

A review of the legislative history of the Federal Mine Safety and 

Health Act of 1977 reveals that the Senate Committee, when considering 

procedures for enforcement of the Act, considered the possibility that 

circumstances such as this might arise and stated as follows: 

Enforcement Procedure 

The procedure for enforcement of the Act 

is based upon the procedure under the Coal Act. 

After an inspection, the Secretary shall within 

3413 
a reasonable time serve the operator by certified 

mail with the proposed penalty to be assessed for 

any violations. The bill requires that the miners 

at the mine also be served with the penalty proposal. 

To promote fairne3s 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 ~enalty 

- with promptness shall vitiate any proposed penalty 

proceeding." S. 717, 95th Cong., p. 622. 

(Emphasis added). 

The purpose of the time limit should not be treated lightly. However, 

unless the respondent shows that he was prejudiced by the late filing, the 

parties should proceed to a hearing on the merits of the case. I find in 

this case that the respondent was not prejudiced by the late filing 

herein. 

CONCLUSIONS OF LAW 

Salt Lake County Road Department, in its capacity as a mine operator 

of the Welby Pit, is subject to the 1977 Mine Safety Act, that the warrantless inspection was legal; and that the respondent was not prejudiced by 

the late filing of the proposal for penalty. 

ORDER 

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

stipulation entered into by the parties, I enter the following order: 

Citation No. 336350 together with a penalty assessment of $60.00 is hereby 

affirmed. Respondent shall pay the affirmed penalty within 30 days of the 

date of this decision. 

Virgi 1 W. Vail 

Admini~rative Law Judge 
Distribution: 

Robert S. Bass, Esq., Office of Tedrick A. Housh, Jr., Regional Solicitor 

United States Department of Labor, Room 2106, 911 Walnut Street 

Kansas City, Missouri 64106 

Kevan F. Smith, Esq., Deputy County Attorney, 

Office of Ted Cannon, Salt Lake County Attorney 

Building 4 - Box 29, 151 East 2100 South, Salt Lake City, Utah 84115 
Ff.DERAL MINE SAFE.TY AND HEALTH REVIEW COMMISSION 

333 W. CULF AX AVENUE 

DENVER, COLORADO 80204 

NOV 2 5 \SEQ 

FEDERAL AMERICAN PARTNERS, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

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

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

DECISION 

APPEARANCES: 

NOTICE OF CONTEST 

DOCKET NO. WEST 80-219-RM 

Order No. 339455, 1/21/80 

DOCKE..T NO. WEST 80-220-RM 

Citation No. 339456, 1/22/80 

MINE: Open Pit Mine 

Steven M. Avery, Esq., 420 E. Washington, Riverton, Wyoming 82501, 

for the Contestant 

James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294, 

for the Respondent 

BEFORE: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Pursuant to section 105{d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1978), the Contestant filed its notice of 

contest to the issuanceoTa citation on January 22, 1980, which alleged a 

violation of 30 C.F.R. 55.7-5. The pertinent part of that regulation states 

as follows: "Mandatory. Drill crews and others shall stay clear of augers 

or drill stems that are in motion .... " 

The Respondent alleges that the citation was properly issued pursuant 

to.Section 104(a) of the Act. Counsel for both parties agreed that alLissues raised would be tried under Docket No. WEST 80-220-RM and that .. 

Docket No. WEST 80-219-RM should be dismissed. Two cases had been docketed 

in this instance, one for the citation in issue and.one for the withdrawal 

order issued under section 103(k) of the Act. Accordin_gly, Case No. WEST 

80-219-RM was dismissed of record prior to the commencement of the hearing. 

3416 
FINDINGS OF FACT 

1. On January 21, 1980, Contestant was operating a truck mounted drill 

rig at a location approximately 50 miles east of Riverton, Wyoming. 

2. The drill rig was being used to drill holes in order to explore for 

uranium. 

3. In connection with the rig, the driller's platform and the platform 

of the driller's helper measure approximately 18" x 24" and are located at 

the back of the flatbed truck. The two platforms are about 14" apart and 

are approximately one foot above ground level. 

•' 

4. -The boom of the truck mounted rig is approximately 38 feet high. 

The drill stem, and kelly which encircles it, is located along the facing 

edge, in between the two work platforms. 

5. While the driller and driller's helper are standing on their work 

platforms during the normal operation of the rig, they are approximately one 

foot from the locating drill stem. 

6. The controls for operating the rig are located in front of the 

<lriller's work platform. 

7. When the driller steps from his platform to the helper's platform 

he passes within approximately 6" of the rotating drill stem and kelly. 

8. On January 21, 1980, while standing on the driller's plat.form and 

operating rig, an employee of Contestant reached behind the kelly in order 

to determine the source of a leak. The protuding bolt heads on the kelly 

caught his sleeve and pulled him into the rotating drill stem. The employee 

sustained serious injuries. 

DISCUSSION AND CONCLUSIONS 

Counsel for tl1e Respondent argued that the violation of the regulation 

occurred by the admission of employees of Contestant that drillers and 

drillers' helpers crossed from one work platform to the other during the 

course of their work, and thus exposed themselves. to moving parts and to the 

drill stem (Tr. 51). In addition, the MSHA inspector stated in the modified 

citation that ''{t]he practice of employees passing directly in front of a 

rotating stem and kelly must immediately cease. Employees may be allowed in 

the proximity of the rotatinr, drill stem and kelly only during periods when 

drill stems are being added or taken out." (Exhibit C-1). 

Neither the argument of Respondent's counsel nor the statement of the 

MSHA inspector are persuasive in support of a finding that the cited regulation was violated. The accident did not occur because the driller crossed 

over from one work platform to the other. Even when the driller is standing 

on his platform in front of the controls he is always within a few inches of 

the drill stem and kelly which a~e in motion. It cannot be assumed that 

since the driller and driller's helper crossed from one work platform to the 

other that they failed to stay clear of drill stems that are in motion. 

341~7 
The driller was standing on his platform and the accident occurred 

because he reached behind the drill stem and came into contact with the 

kelly, which pulled him into the rotating drill stem. The driller 

obviously failed to "stay clear" of the drill stem that was in motion since 

his injuries were caused by direct contact with it. On this basis there 

was a violation of 30 C.F.R. 55.7-5, as alleged. 

ORDER 

Citation No. 339456 is hereby AFFIRMED. 

Distribution: 

James H. Barkley, Esq., 

Office of the Solicitor 

U. S. Department of Labor, 

1585 .Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Steven M. Avery, Esq. 

White, Avery & Howard 

420 East Washington 

Riverton, Wyoming 

3418 

-
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 

ADMINIST~TION (MSHA), .,.- Petitioner 

v. 

LITTLE BILL COAL CO., INC., 

Respondent 

NOV ·2 5 1980 

Civil Penalty Proceedings 

Docket No. KENT 80-203 

A.O. No. 15-11645-03008 

Docket No. KENT 80-194 

A.O. No. 15-11645-03007 T 

Docket No. KENT 80-261 

A.O. No. 15-11645-03009 

Mine No. 4 

Docket No. KENT 80-262 

A.O. No. 15-11838-03001 

Docket No. KENT 80-263 

A.O. No. 11-11838-03002 

Mine No. 5 

Docket No. KENT 80-193 

A.O. No. 15-10394-03012 

Mine No. 6 

ORDER ASSESSING DEFAULT PENALTY 

The pretrial order of September 2, 1980, in the captioned matters, 

required compliance by both parties with Part A thereof on or.before 

October 17, 1980, and compliance with Part Bon or before November 17, 

1980. The pretrial order required inter alia that "it is expected that 

respondent will cooperate in furnishing [specified information] to 

counsel for the Secretary," and further stated that "except for good 

cause shown in advance thereof, any failure to comply in full and on 

time with the provisions of this order shall be deemed cause for the 

issuance of an order of dismissal or default." 

On September 5, 1980, counsel for the Secretary sent a letter to 

counsel for respondent in which he requested the information required by 

the order. No response has ever been made to this letter. When respondent 

failed to comply with the requirements of Part A of the pretrial order, 

an order issued on October 22, 1980, directing respondent to show cause 

why it should not be held in default. In response to the show cause 

3419 
order, respondent stated that it had not yet been able to prepare its 

defenses, and that "efforts are now being made to comply." Over a month 

has elapsed since then, and respondent has failed to cure its deliquency 

with respect to Part A of the pretrial order, or to comply with the 

requirements of Part B. J should further note .that this respondent has 

a history of failure to comply with the orders of the trial judge. See 

Little Bill Coal Co., KENT 79-261 (June 30, 1980) review denied (August 

26, 1980). Such course of conduct cannot be.condoned. 

Accordingly, respondent having (1) failed to cooperate with counsel 

for the Secretary as required by the pretrial order, (2) failed to cure 

its delinquency with regard to Part A of the order, (3) failed to make 

any response to Part B of the order, and (4) failed to request a reasonable amount of time in which to effect compliance; it is ORDERED that 

respondent be, and hereby is, declared in DEFAULT. 

It is FURTHER ORDERED that pursuant to Rule 63 of the Commission's 

rules the proposed penalty of $1,774 be, and hereby is, ASSESSED as a 

FINAL ORDER of the Commission. Finally, it is ORDERED that respondent 

pay the amount finally asses-sed, $1, 77 4, on or before Monday, December 15, 

1980. 

Distribution: 

Joseph B. Ke edy 

Administrative Law Judge 

George Drumming, Jr., Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, Nashville, TN 37203 (Certified Mail) 

Herman W. Lester, Esq., Combs & Lester, 207 Caroline Ave., Drawer 551, 

Pikeville, KY 41501 (Certified Mail) 

-

3420 
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), 

Petit'ioner 

- v. 

F & G SAND AND GRAVEL CO., INC., 

Respondent 

NOV 2 5 1980 

Civil Penalty Proceeding 

Docket No. YORK 80-46-M 

A.O. No. 19-00306-05003 

F & G Sand & Gravel Co. 

ORDER ASSESSING DEFAULT PENALTY 

The operator having failed to comply with the requirements of the 

pretrial order of August 1, 1980, in the captioned matter, an order to 

show cause why it should not be declared in default issued on October 16, 

1980. On the return date of the order, October 29, 1980, respondent 

contacted this office telephonically and stated that it was interested 

in complying but that it was unclear as to the specific requirements of 

the pretrial order. The operator was given detailed instructions, and 

was informed that pursuant to Rule 8(b) of the Commission's Rules 

respondent had five days in which to file its response. A month has 

elapsed and respondent has failed to comply, and has failed to request a 

reasonable extension of time in which to comply. Accordingly, it is 

ORDERED that the operator be, and hereby is, declared in DEFAULT. 

It is FURTHER ORDERED that pursuant to Rule 63 of the Commission's 

rules the proposed penalty of $763 be, and hereby is, ASSESSED as a 

FINAL ORDER of the Commission. Finally, it is ORDERED that respondent 

pay the amount finally assessed, $763, a or before Monday, December 15, 

1980. 

Distribution: 

Albert H. Ross, Esq., David Baskin, Esq., U.S. Department of Labor, 

Office of the Solicitor, JFK Federal Bldg., Govt. Center, Boston, 

MA 02203 (Certified Mail) 

Peter Barsoum, Jr., Corporation Clerk, F&G Sand & Gravel Co., Inc.,· 

140 N. Quinsingamond Ave., Shrewsbury, MA 91545 (Certified Mail) 

3421 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

N8·i ? =. :980 

LOCAL UNION 781, DISTRICT 17, Complaint for Compensation 

UMWA, 

Applicants 

Vo 

EASTERN ASSOCIATED COAL CORPORATION, 

Respondent 

Docket No. WEVA 80-473 

Wharton No. 4 Mine 

DECISION 

On September 23, 1980, Respondent, Eastern Associated Coal Corporation, 

filed a motion for summary decision in the subject proceeding. On October 7, 

1980, Applicant filed a cross-mo.tion for summary decision. Local Union 781, 

UMWA, represents coal miners at Respondent's Wharton No. 4 Mine. 

The record indicates the following undisputed facts: On March 19, 1980, 

at about 1:30 a.m., a miner was fatally injured at Respondent's Wharton 

No. 4 Mine; at about 2:30 a.m., Applicants withdrew from the mine to observe 

a 24-hour memorial period under Article XXII, section (k) of the National 

Bituminous Coal Wage Agreement of 1978. 1/ Under the contract, the miners 

were not entitled to compensation for their absence during the memorial 

period. 

At 6:19 a.m. on March 19, 1980, federal inspector Joseph LonCavish 

issued an investigative order of withdrawal under section 103(k) of the 

Federal Mine Safety and Health Act of 1977, which provides in part: "In 

the event of any accident occurring in a coal or other mine, an authorized 

representative of the Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person in the coal or other 

mine * * *·" 

After an investigation, the section 103(k) order of withdrawal was 

terminated at 3: 13 p.m. on March 20, 1980. 

- 1/ This contract provision, binding on the Applicants and the Respondent, 

reads in part: "* * *work shall cease at any mine on.any shift during 

which a fatal accident occurs, and the mine shall remain closed on all 

succeeding shifts until the starting time of the next regularly scheduled 

work of the shift on which the fatality occurred." 
On June 17, 1980, Applicants filed a complaint for compensation under 

section 111 of the Mine Act. Applicants allege that as a direct result of 

the 103(k) order of withdrawal, all miners working during the midnight shift 

(midnight to 8 a.m.) on March 19, 1980, were idled for the last 1.68 hours 

of their shift and that all miners scheduled to work the day shift (8 a.m. to 

4 p.m.) on March 19, 1980, were idled for their entire shift. Applicants 

seek compensation for 1.68 hours of the midnight shift and 4 hours of the 

day shift on March 19, 1980. · 

The basic issue is whether Applicants were idled by the section 

103(k) order of Withdrawal within the meaning of section 111 of the Act. 

Section 111 provides in part: 

,_, If a coal or other mine or area of such mine is closed 

by an order issued under section 103, section 104, or section 

107, all miners working during the shift when such order was 

issued who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay for 

the period they are idled, but for not more than the balance 

of such shift. If such order is not terminated prior to the 

next working shift, all miners on that shift who are idled by 

such order shall be entitled to full compensation by the 

operator at their regular rates of pay for the period they 

are idled, but for not more than four hours of such shift. 

The legislative history includes the following explanation by the drafters 

of section 111: 

[T]he bill provides that miners who are withdrawn from 

a mine because of the issuance of a withdrawal order shall 

receive certain compensation during periods of their withdrawal. This provision, drawn from the Coal Act, is not 

intended to be punitive, but recognizes that miners should 

not lose pay because of the operator's violations, or because 

of an imminent danger which was totally outside their control. 

It is therefore a remedial provision which also furnishes 

added incentive for the operator to comply with the law. 

[S. Rpt. No. 95-181, 95th Cong., 1st Sess. 46-47 (1977), 

reprinted in Legislative History of the Federal Mine Safety 

and Health Act of 1977 at 634-635 (1978).] 

The issue raised by this case appears to be one of first impression. 

Respondent asserts that Applicants can recover under section 111 only 

if they were idled directly by the section 103(k) investigative order of 

withdrawal and can show that they would have worked but for the withdrawal 

order. 

Applicants dispute this, and rely on decisions of the Commission, 

and of the (predecessor) Interior Department Board of Mine Operations 

342a 
Appeals, holding that an order of withdrawal is effective for purposes 

of the Act's compensation provision even though no miners were working 

when the order was issued. 

The cases cited by Applicants are distinguishable because they involved 

miners who would have gone back to work but for the withdrawal order. In 

the instant case, the withdrawal order was both issued and terminated during 

a non-compensatory memorial period. On the facts of this case, the miners 

would not have gone back to work, and would not have been compensated, during 

the memorial regardless of the issuance or non-issuance of the Government's 

section 103(k) order. 

I conclude that the plain meaning of section 111, as well as its 

legislative history and recent Commission decisions, dictates denying 

compensation on the facts presented. In Youngstown Mines Corporation, 

1 FMSHRC 990, 992 (August 15, 1979), the Commission upheld an award of 

compensation on the ground that the miners would have worked and received 

compensation "but for" the withdrawal order. In Kanawha Coal Company, 

1 F~1SHRC 1299 (September 4, 1979), the Commission affirmed a decision 

that held: 

The essential element that must be satisfied to receive 

compensation under the statute is that a miner was unable to 

perform his regular duties as a result of a withdrawal order, 

e.g., that he was "idle" when he otherwise should have been 

working. Therefore, in order for an applicant to be successful in his claim for compensation, a causal relationship must 

exist between the issuance of the withdrawal order and the 

miners not working. "In order for the miners to recover 

under section [111], the order of withdrawal must be the 

reason the miners were idled." Local No. 6025, District 29, 

United Mine Workers of America v. Bishop Coal Company, 

HOPE 73-550 (December 3, 1973). [Kanawha Coal Company, Docket 

No. HOPE 77-193 (February 24, 1978)]. 

The record shows there is no genuine dispute as to a material fact. I 

conclude that Respondent is entitled to a summary decision as a matter of law. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent's motion for summary decision is GRANTED. 

2. Applicants' motion for summary·decision is DENIED. - 3. The subject proceeding is DISMISSED. 

WILLIAM 

U)~~ViA.-- FAUVER, JUDG 

3424 
Distribution Certified Mail: 

Sally S. Rock, Esq., Eastern Associated Coal Corp., 1728 Koppers Building, 

Pittsburgh, PA 14219 

Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, NW, Washington, 

DC 20005 

3423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Q3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ftOV 2 8 1980 

COIJSOLIDATION COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Application for Review 

Docket No. WEVA 79-115-R 

Order No. 813952 

April 20, 1979 

Loveridge Mine 

Civil Penalty Proceeding 

Docket No. WEVA 80-26 

A/O No. 46-01433-03054V 

Loveridge Mine 

DECISION 

Appearances: 

Before: 

David E. Street, Esq., and Barbara Krause Kaufmann, Esq., 

Office of the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Mine Safety and Health Administration; 

Rowland Burns, Esq., and Samuel P. Skeen, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, for Consolidation Coal 

Company. 

Judge Cook 

The above-captioned. application for review proceeding was filed by 

Consolidation Coal Company (Consol) on May 9, 1979, pursuant to section i~(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 United Mine Workers~ 

America (UMWA) and the Mine Safety and Health Administration (MSHA) on May 10, 

1979, and May 24, 1979, respectively. 

The above-captioned civil penalty proceeding was filed by MSHA on 

November 23, 1979, pursuant to section llO(a) of the 1977 Mine Act. Consol 

filed an answer on November 28, 1979. 

3426 
Both pr.oceedings address Order No. 813952, issued at Consol's Loveridge 

Mine on April 20, 1979, pursuant to section 104(d)(2) of the 1977 Mine Act. 

The order cites Consol for an alleged violation of 30 C.F.R. § 75.400 as 

follows: 

An excessive accumulation of float coal dust (black to 

dark gray in color) was allowed to accumulate on top of rock 

dusted surfaces located on the roof, ribs and floors of the 

crosscuts and entries Nos. 5 and 6. Starting 200 feet outby 

the last open crosscut at spad No. 6/46 a distance to 6/34 

of about 1,260 feet. Located in the 7 North, 9 Left Section 

(017). Mining was being done on the left split of air at 

the time of the order. Samples were collected at 6/43 and 

6/~ station Nos. to show the float coal dust was present on 

top of rock dust. 

On March 18, 1980, the cases were consolidated for hearing and decision. 

Notices of hearing were issued at various stages of the proceedings which 

ultimately scheduled both the above-captioned cases, and several additional 

cases involving MSHA and Consol, for hearing on the merits beginning at 

9:30 a.m., on June 17, 1980, in Washington, Pennsylvania. 

The above-captioned cases were called for hearing on June 18, 1980, in 

Washington, Pennsylvania, with representatives of MSHA and Consol present 

and participating. MSHA thereupon made an oral motion in Docket No. WEVA 80-26 

for approval of settlement in the amount of $500. The Office of Assessments 

had proposed a civil penalty in the amount of $2,000. In view of both the 

significant reduction proposed and the state of the record at that time, MSHA 

was requested to file a written settlement motion and to submit certain additional information necessary to properly evaluate the proposed settlement. 

It should be noted that a copy of the inspector's statement, describing 

the alleged violation in terms of negligence, gravity and good faith, was 

attached to the proposal for a penalty filed by MSHA on November 23, 1979. 

As relates to the issue of operator negligence, the inspector indicated: 

(1) that the condition cited should have been known to the mine operator 

because the "immediate right return is part of the active working section 

and is to be examined;" (2) that the condition cited was known by the mine 

operator and should have been corrected because "300 feet was drug out.by the 

last open crosscut;" and (3) that "Jimmy Woods, union fireboss, examined the 

(said) area on [April 19, 1979] at 10:20 a.m." As relates to gravity, the 

inspector classified the occurrence of the event against which the cited 

standard is directed as "probable" because the "float coal dust, if ignited, 

could cause a mine explosion or mine fire," and identified the fact that the 

"section is very dry and liberates methane" as a condition or circumstance 

which might have increased the likelihood or severity of the event. The 

inspector's statement indicated that the injury resulting from or contemplated by the occurrence of the event could reasonably be expected to be 

(1) lost workdays or restricted duty, or (2) permanently disabling; and 

3427 
that seven or more miners would be affected if the event were to occur. 

Counsel !or MSHA was informed that an affidavit would have to be obtained 

from the inspector changing these statements before a $500 settlement 

could be approved. 

On July 10, 1980, MSHA filed its written motion requesting approval 

of the $500 settlement and dismissal of the proceeding. MSHA advanced 

the following reasons in support of the proposed settlement: 

* * * * * * * 

3. A reduction from the original assessment is warranted 

under the unique circumstances of this case. 

This case involves a 104(d)(2) order issued for a violation of 30 CFR 75.400. Further investigation into the facts 

surrounding issuance of this order discloses that the order 

should not have been issued under Section [104](d) of the Act. 

The Secretary is unab_le to prove an unwarrantable failure in 

this case. However, a violation does exist. The inspector 

who issued the subject order agrees with this analysis and 

has modified the 104(d)(2) to a 104(a) citation. A copy of 

the modification is attached hereto. Also, attached is the 

affidavit of coal mine inspector David Workman. This affidavit verifies the facts of the violation and the fact that 

the condition does not constitute an unwarrantable failure. 

A $500 penalty is appropriate for this violation. The 

operator's negligence was considerably less than originally 

calculated. The Office of Assessments viewed this condition 

as an unwarrantable failure. As is evidenced by the "Narrative 

Findings for a Special Assessment" form which is attached 

hereto, the Assessment Office believed that the operator 

could easily see the accumulations. Mr. Workman's affidavit 

clartfies that the area of accumulations was not visible from 

traveled areas of the mi-ne. Moreover, it was in an area which 

was required to be inspected only one time per week. The 

Secretary does contend that the operator has a duty to see that 

there is compliance with the clean-up plan. However, in this 

particular situation, the operator's negligence is rather 

slight. The probability of occurrence is also not large as 

there were no ignition sources in the area of accumulation. 

There was no methane found. Therefore the probability of a· 

spontaneous ignition is also low. For all of the above 

stated reasons, in conjunction with the operator's prior history and the size of the operator, the Secretary urges the .-

Administrative Law Judge to find that $500 is a reasonable 

penalty for this violation. Consolidation Coal Company is 

a wholly owned subsidiary of Conoco, Inc. The size of the 

company is 34,945,989 production tons or man hours per year. 

3428 
This tonnage includes all of Conoco's operations with the 

exception of one uranium mine, the Conquita Mine. The annual 

man hours of this mine is 1,000,000. The size of the Loveridge 

Mine is 1,241,697 production tons or man hours per year. 

The "affidavit" referred to is acutally a memorandum dated July 3, 

1980, from Federal mine inspector David E. Workman characterizing the 

alleged violation as follows: 

On April 20, 1979, I issued violation No. 013952 [sic]. 

At that time I observed accumulations of float coal dust in 

the immediate return air course of the 7 North 9 Left 

seC'tion. This area is one, that is required to be examined 

weekly for hazardous conditions. The (said) area was not 

visible from a regular traveled area of the mine or working 

section. The area inby the float coal dust accumulation 

had been drug (mixed coal dust and rock dust); however, the 

float coal dust accumulation could not be seen from the last 

open crosscut. 

I believe the operators [sic] negligence is low, also 

the probability of the occurrence is moderate. 

There was no methane present and no ignition source 

present in the immediate (said) area of the violation. 

On August 4, 1980, the motion to approve settlement.was denied because 

the information sub.nitted was insufficient for the purpose of determining 

that approval of the proposed settlement would protect the public interest, 

and a notice of hearing was issued scheduling the cases for hearing on the 

merits beginning at 9:30 a.m., on September 18, 1980, in Washington, 

Pennsylvania. 

On August 14, 1980, Consol filed a petition for interlocutory review 

with the Federal Mine Safety and Health Review Comnlission (Commission) 

pursuant to 29 C.F.R. § 2700.74 (1979), contending: (1) that it was adversely 

affected and aggrieved by the undersigned's August 4, 1980, determination; 

(2) that the undersigned erred in denying the motion to approve settlement 

and in finding that insufficient information had been furnished to permit 

approval of the proposed settlement; and (3) that immediate review of the 

ruling might materially advance final disposition of the proceedings and 

establish guiding principles to facilitate settlement in future cases. On 

September 3, 1980, the Commission denied Consol's petition for interlocutory 

review. 

The hearing convened as scheduled on September 18, 1980, in Washington, 

Pennsylvania, with representatives of MSHA and Consol present and participating. 

Counsel for MSHA made an oral motion for approval of settlement which is 

identified as follows: 

Ci ta ti on No. Date 30 C.F.R. Standard Settlement Assessment 

813952 4/20/79 75.400 $750 $2,000 

3429 
The following discussion took place on the record: 

[MR. STREET:] Now, at the time the motion for decision 

and order approving settlement was submitted, the parties 

had agreed on a penalty of $500. Since the time this motion 

has been submitted, I have had discussions with attorneys 

for Consolidation Coal, and I have learned that Consolidation 

is agreeable to paying a penalty of $750 in this case. 

I have learned that Consolidation is prepared to have 

witnesses testify who would call into dispute the length 

of the accumulations which were referred to in the order of 

withdrawal, and the witnesses for Consolidation also would 

be disputing the color of the accumulations which is evidence 

of their depth. 

In summary, Your Honor, I believe with the representations that already_ have been set forth in the earlier motion 

to approve settlement, when you combine those representations 

with the fact that a conflict as to the evidence of the 

violation, itself, would be expected if the case were heard, 

I believe that it would be appropriate that this case be 

resolved for a penalty of $750. 

THE COURT: Is there anything that you wanted to say? 

MR. BURNS: Well, there are a couple things I want to 

add. I would certainly not dispute anything that Mr. Street 

has said, but not only when the area in question was inspected, 

not only was there no appreciable methane found, there was 

also a ventilation check of the area and the ventilation was, 

I believe, at 21,600 feet per minute which, I have had 

represented to me, is a fairly good ventilation. 

I also have a witness present today who would be in a 

position to testify that as the fireboss who checked the 

return in question the day before the citation in question 

was issued, or the order that was later modified to a citation, the area in question was completely clear of coal 

dust accumulation, and that was his check in accordance with 

the one-week check regulation that Mr. Street cited in part, 

I believe, (30 C.F.R. § 75.305]. 

Those two additional facts I would add in support of the 

motion for settlement and the penalty of $750. 

- THE COURT: You see, Mr. Burns, that is the very point 

which created one of the serious problems about settlement 

in this case, because here we have all these statements by 

MSHA saying this didn't have to be examined more than once 

a week. Was that right? 

3430 
MR. STREET: That's right. 

THE COURT: Here we have a man who saw it the day before 

and·that was the whole point about negligence, this large 

amount of dust as stated in the record_ at this moment. That. 

was the whole point as to why a settlement couldn't be 

approved. It was obviously seen by your people the day 

before, yet all the way through this case, the real -- one of 

the biggest reasons why a settlement has been proposed was 

that you didn't have to examine it more than once a week, 

and here you had examined it the day before. Now, I cannot 

really ~mment very much more about this, because I don't 

really know what the facts are. I understand some of these 

things that you people have set forth as proposals of what 

might be presented, but I am more concerned about what the 

real facts are from the witnesses in this case at this point, 

because at this point with the information that is in the 

record now, it still is a serious matter. 

As I say, I don't know what the facts will produce 

in the event of a hearing. It may be that the facts will 

convince me that this is not as serious as it appears to be 

on the record at the moment. But I am afraid that what you 

are presenting to me at this stage is not -- has not really 

changed the picture from what it was the last time this 

settlement was proposed at $500, and $750 is hardly much of 

a change in view of the seriousness of what appears in the 

record at this moment. 

As I say, I have no idea what the evidence ultimately 

will produce, and I might agree with you that that is a 

proper figure if I hear all the evidence. But at this 

stage, I do not approve a settlement of that type. 

MR. BURNS: Can we go off the record for just a second, 

Your Honor? . 

THE COURT: Yes, certainly. 

(Discussion off the record.) 

(Recess taken.) 

THE COURT: The hearing will come to order. Now, 

Mr. Street, I believe that you have had a chance to consult 

with your witnesses, and you wanted to make a statement at 

this time as to some of the facts that you feel should be 

applied to consideration of a settlement in these cases. 

·3431 

\ 
MR. STREET: Yes, Your Honor, we do. Your Honor, while 

we were off the record, I spoke with the union fireboss, who 

examined the area in question in this case. That is the area 

which is referred to in the order of withdrawal on 813952 

which was later modified by the inspector to be a section 

104(a) citation. When the union fireboss examined the area in 

question 24 hours prior to the issuance of the order in this 

case, he found that the area was well rockdusted and that 

· there were no accumulations of float dust in that area. 

The inspector was conducting the weekly inspection 

required by 30 CFR Section 75.305. When the inspector 

returned to the area 24 hours later he found -- when the 

inspector went to the area 24 hours after the area had been 

examined by the union pre-shift examiner, he found that 

there were float coal dust accumulations in the No. 6 entry 

and to a lesser extent in the No. 5 entry. Now, to provide 

Your Honor with a graphic, which would be of assistance in 

your evaluation of [the] motion to approve settlement, I 

have a drawing of the section where the violation occurred. 

The drawing was made by Inspector David Workman yesterday, 

and I would, with the consent of the operator's counsel, 

move this drawing into evidence. I would submit it as 

part of the record. 

THE COURT: Just make it M-1. 

(Thereupon, Exhibit M-1 was marked.) 

MR. STREET: And as Your Honor can see from looking at 

the exhibit, there was a gas well on the right side of the 

section just outby the third crosscut outby the face. And 

the gas well blocked the view of the area which the section 

foreman otherwise would have had. And the presence of the 

gas well blocked his view of the area. He was not able to 

see that there were violative conditions outby the gas 

well. The area from the gas well to the face in the No. 6 

entry was well rockdusted, was white in color and in fact, 

all areas which were inby the tail piece in the section, all 

areas in all entries were properly rockdusted. 

The section which is depicted in M-1, and which, of 

course, includes the area of the violation was a very heavily 

ventilated section. We are informed that 26,000 cubic feet --

over 26,000 cubic feet per minute of air was ventilated through 

that section. It is our belief that it is entirely possible 

that the float dust had accumulated during the 24-hour period 

between the time that the union fireboss conducted his 

required weekly examination of the area and the time of the 

inspection in this case. 

3432 
There were no ignition sources in the Nos. 5 or 6 entry 

where the violation occurred, and as is indicated in the 

earlier motion to approve settlement, there were no accumulations of methane in that area or in any area in the section. 

At the time the violation was cited, mining was taking 

place in the area which is depicted in the upper left-hand 

corner of the graphic. That would be in entry No. 1. 

Rowland? Anything more? 

MR. BURNS: I wish I could think of something. 

MR:·sTREET: So, Your Honor, ·these are the additional 

facts which we would like to -- which we have put forward. 

They are all the facts that we can think of that would 

relate to our proposal to settle this case for $750. 

THE COURT: All right. Now, are you saying that you, 

yourself, as representative of MSHA subscribe to the statements that were made to you by the pre-shift examiner as to 

what he observed the day before? 

MR. STREET: Yes, Your Honor. I spoke with the man and 

I am convinced he is telling the truth. 

THE COURT: All right. Now, how large an area, though, 

was actually black as opposed to gray? 

MR. STREET: Your Honor, this morning I spoke with an 

employee who would be our witness if this case were tried, and 

he informed me that there was an area approximately 200 feet 

long that was black in color. The remaining areas were gray 

in color. And to be truthful, I can't remember whether he told 

me whether they ranged from light gray to dark gray, what 

gradations of gray they were, but the remaining areas were gray 

in color. 

THE COURT: Can you give me an idea where this 200 feet 

of black area was? 

MR. STREET: Your Honor, the area which was black was the 

area immediately -- just a moment, please -- the area which 

was black was -- began to the left of the gas well which is 

depicted in Exhibit M-1, and it extended back down entry No. 6 

behind the gas well and down the entry. 

THE COURT: Now, was there some remark during the discussion before we went back on the record about some automatic 

rockdusting equipment? Can you tell us something about what 

that is, how this area is rockdusted? 

3433 
MR. STREET: As I understand it, and as the inspector 

understan:'ds it, when the area is ventilated, when the section 

is ventilated, normally rockdust is added -- okay. When the 

section is ventilated, Your Honor, there is an attachment to 

the fan which contains rockdust, and which introduces rockdust 

into the stream of ventilation so that as the coal dust is 

ventilated out the return entries, rockdust also is mixed in 

with the coal dust and ventilated back through the mine. 

There is some speculation on our part, although we don't know 

it, but there is some speculation that this rockdusting 

system was not working, but we don't know that. 

THE COURT: At what place is the rockdust actually 

introduced? Is it introduced near the face area? 

MR. WORKMAN: At the last open crosscut, Your Honor, 

where the last open crosscut is considered to be, the last 

row of crosscuts connected to the cross. So we are looking 

at the extreme right entry where the little line is, where 

the fan sits, normally down in that entry. 

THE COURT: Perhaps you should identify that gentleman. 

MR. STREET: The gentlemanwho just spoke was the 

inspector, David Workman. 

THE COURT: Now, do you happen to know anything about 

the fan, this system, how this thing works? 

MR. BURNS: Absolutely nothing. 

THE COURT: Could you ask some of your people? I am . 

just curious about what they know about where this fan, and 

where the rockdust is introduced. 

MR. BURNS: This is Dick Turner, who is our chief safety 

inspector at the mine. 

MR. TURNER: Your Honor, normally the normal procedure, 

the rockdust is introduced into the airstream. We have 

rubber tired exhaust fans that we use to ventilate the working 

face where the miner is .extracting coal from. On these fans 

we have what we call a trickle duster. It is a separate 

piece of machinery that is mounted onto the back of the 

exhaust fan. We normally keep them full of rockdust, and on 

the bottom of each one of these, we have a plate that works 

back and forth on a cam or what have you, and as it works 

back and forth, it discharges a slow amount of rockdust that 

is picked up from the air exhaust from the exhaust fan. It, 

in turn, puts it into suspension in the air right at the 

discharge end of our exhaust fans and it, in turn, mixes with 

the coal float dust and is carried down the entry. 
THE COURT: And where would that be located if you are 

looking at this M-1 that's been put in evidence? Can you 

tell us where it would be? 

MR. TURNER: Normally it would be -- if we were mining 

on the right side going down that entry, it would be at the 

top right-hand part. If you will notice, there is one line 

of full blocks going straight across. It would be just 

outby the No. 6 entry down there so that the air would 

exhaust down our main returns. 

THE COURT: Do you get enough rockdust from that procedure 

to solve normally your problem? 

MR. - TURNER: Yes, we do. It is one of the best ones that 

we have found. We just started using it approximately two 

years ago in our mines and they are doing one heck of a job for 

us. 

THE COURT: Apparently where you have got a gas well, 

there are problems? 

MR. TURNER: Well, Your Honor, in projecting around gas 

wells we are required to leave 100 feet from the gas well in 

all directions. In order to go around these wells we have 

to project our mine around these gas wells to maintairi our 

ventilation. 

THE COURT: What I am saying, though, apparently you ·have 

got some problem about whether it is being done adequately, 

where you do have something which cuts into the entry, isn't 

that true? Do you have any idea why the rockdusting just 

wasn't working well this day? 

MR. TURNER: I have no idea why it shouldn't be working. 

Of course, that's our normal procedure that when we do go on 

a section, my men and myself, we always check ventilation, 

rockdusting before we go on the sections, and their orders 

are if they aren't working that we use other corrective 

measures to take care of it. 

THE COURT: Well, it seems to me, gentlemen, that when 

you have got a problem of this kind with obstruction in an 

entry, that this system -- perhaps the Secretary, perhaps MSHA 

should require more of ten examinations of those returns so you 

don't have a problem like this developing this badly, if it 

happened in one day. If they didn't examine it for five days 

later, let's say, there would be a tremendous amount of float 

coal, apparently. In fact, I would assume it would be about 

as bad as you would ever find, if it kept on like this for, 

say, five days of this blocking up. 

3435 
MR. TURNER: Your Honor, if I might add one other thing. 

I wasn't in the area when the citation or the order was 

written, but it is policy that the safety supervisor, whenever you have a 104(d)(2) order or any type of order that 

we visit that area before anything is done to it. One thing 

I can say about the area is that it was damp and wet in 

spots. You can take rockdust and even though it is white 

in color when it is dry, if you wet it or it is on a wet 

surface, without any coal float dust on top of it, it will 

turn a gray color. 

So depending on the conditions, whether it is wet or 

dry will have a lot of bearing on the color of it. 

THE COURT: True, excepting, of course, now as I understand it there were samples taken in this case, weren't 

there? 

MR. STREET: Yes, sir. 

THE COURT: Do you have any idea how those samples --

what they showed as to content? 

MR. STREET: They showed, Your Honor -- the samples 

were taken for the purpose of demonstrating that there 

was float dust on top of rockdust, and they showed that 

the first sample was 95 percent incombustible material. 

The second sample showed as 87 percent incombustible 

material. So in one instance we had 5 percent combustible 

and the other 13 percent combustible, but they were taken 

to show that there was combustible material on top of 

rockdust. 

THE COURT: What is the required percentage? What 

is the regulation? What does the regulation say? 

MR. STREET: The regulation, which you are speaking 

of, Your Honor, talks -- I believe addresses itself to 

rockdust which has been mixed with float dust. In this 

instance, there was float dust on top of rockdust, but 

that's, what? 65 percent? It says 80 percent has to be 

incombustible in the return areas. 

THE COURT: All right. So actually, your tests, 

though, did not give us then the combined figure? Is 

that what you are saying? That this test was only for- .-

the surface? 

MR. STREET: Go ahead and explain how you took it. 

3436 
MR. WORKMAN: No, Your Honor. You want me to state 

my name. 

THE COURT: You have already said what your name is. 

Your are Mr. Workman, right? 

MR. WORKMAN: The samples were collected purely not 

to state that the rockdusting in the return was not 

adequate; the samples were collected to show that float 

coal dust was present on top of rockdust in the immediate 

return. 

THE COURT: But not to claim that the percentages 

were 

MR. WORKMAN: -- inadequate. 

THE COURT: Inadequate? 

MR. WORKMAN: Right. 

THE COURT: So now, of course, this regulation which is 

[30 C..F.R. § 75.403] talks about the combined -- the incombustible content of the combined coal dust, rockdust and other 

dust shall be not less than 65, or 80 percent in the return. 

Now, did you have a test of combined coal dust, rockdust and 

other dust? 

MR. WORKMAN: Yes, sir. 

THE COURT: And it actually didn't show that it was less 

than 80 ~ercent incombustible, did it? 

MR. WORKMAN: No, sir •. 

THE COURT: So that regulation certainly wasn't violated? 

MR. WORKMAN: No, that regulation wasn't cited. 

/ 

THE COURT: I understand that. And I think that's pretty 

significant in this situation. Now, the only thing that I do 

want to say about this is that I think that MSHA has a responsibility to look at situations like this and determine whether, 

in fact -- I am not saying, because I don't honestly know all 

the facts, because we haven't taken all the testimony here, 

but if, in fact, this kind of problem of a gas well creates a 

problem so that the rockdusting system is not really doing the 

job properly, and I am not saying it wasn't, I just don't 

know, but assume for the sake of argument that it is not doing 

it properly, and that this violation just occurred inside of 

3437 
one day, I think that the Secretary of Labor has a duty to see 

if under those circumstances more [frequent] examinations should 

be required instead of just once a week. 

I think, Mr. Street, you have got an obligation to go back 

to MSHA and mention this. 

MR. STREET: Yes, sir. 

THE COURT: Because if it really was a concentration as it 

appeared on the citation, it should not be permitted to go 

unnoticed that long. Now, in view of all the facts that have 

been set forth here at this point, and particularly this one 

about the samples, and I won't just base it upon that, but on 

the entire picture here, particularly also the statements 

which have been made about the pre-shift inspector's knowledge 

the day before, I will approve the settlement of $750 in this 

case. 

MR. STREET: Thank you, Your Honor. 

MR. BURNS: Thank you, Your Honor. 

(Transcript of September 18, 1980, proceedings, pgs. 6-22). 

The oral determination made during the hearing on September 18, 1980, 

approving the proposed $750 settlement in Docket No. WEVA 80-26 will be 

affirmed. 

On October 1, 1980, Consol filed a motion to withdraw in Docket 

No. WEVA 79-115-R stating as follows: 

COMES NOW, the Applicant, Consolidation Coal Company, 

and moves the Court to permit it to withdraw its Notice 

of Contest heretofore filed herein pursuant to 29 C.F.R. 

§ 2700.11. 

WHEREFORE, Applicant prays that its Motion be granted 

and that its Notice of Contest be withdrawn and this case 

be dismissed. 

The motion will be granted. 

ORDER 

IT IS ORDERED that the determin~tion of September 18, 1980, approving 

the proposed settlement of $750 in Docket No. WEVA 80--26 be, and hereby is, 

AFFIRMED. 

3438 
IT IS FURTHER ORDERED that Consol pay a civil penalty in the agreedupon amount of $750 within 30 days of the date of this decision. 

IT IS FURTHER ORDERED that Consol's motion to withdraw in Docket 

No. WEVA 79-115-R be, and hereby is, GRANTED, and that such application 

for review proceeding be, and hereby is, DISMISSED. 

Law Judge 

Distribution: 

David E. Street, Esq., Barbara Krause Kaufmann, Esq., Office of the 

Solicitor, U.S. Department of Labor, Room 14480, Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Rowland Burns, Esq., and Samuel P. Skeen, Esq., Consolidation Coal 

Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 15th Street, NW., Washington, DC 20005 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

3439 
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 

i.ov 2 a 1seo 

Petitioner 

Civil Penalty Proceeding 

Docket No. VA 80-67-M 

Assessment Control 

No. 44-00109-05003F 

LONE STAR INDUSTRIES, INC., 

Respondent 

Jack Plant 

DECISION 

Appearances: Barbara Krause Kaufmann, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Before: 

William I. Althen, Esq., and Barry M. Hartman, Esq., Smith, 

Heenan, Althen & Zanolli, Washington, D.C., for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued July 11, 1980, a hearing in the 

above-entitled proceeding was held on August 12, 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). 

At the conclusion of the hearing, counsel for the parties indicated 

that they would like to file simultaneous posthearing briefs before a 

decision was rendered. Counsel for petitioner filed a Post Trial Brief 

on October 14, 1980, and counsel for respondent submitted on October 16, 

1980, a document which consists of a preliminary statement, findings of 

fact, and conclusions of law. I shall hereinafter refer to the filings 

by both parties as "briefs." Since I shall provide page numbers for any 

references I make to each party's "brief," neither party will have any 

difficulty in finding a portion of his or her brief which is being cited. 

Issues 

- The parties' briefs raise the normal issues which are generally 

involved in civil penalty cases, that is, whether a violation of a mandatory health or safety standard occurred and, if so, what civil penalty 

should be assessed, based on the six criteria set forth in section llO(i) 

of the Act. 
Before considering the parties' arguments, I shall make some findings 

of fact on which my decision will be based. 

Findings of Fact 

1. Lone Star Industries, Inc., operates the Jack Plant which is 

located near Petersburg, Virginia. 1he plant prepares stone products for 

sale. 1he stone is hauled away from the plant in trucks or in railway 

cars, depending upon the mode of transportation desired by Lone Star's 

customers (Tr. 146). Operation of the Jack Plant involves about 152,196 

man hours per year and operation of the company as a whole involves approximately 6,~24,273 man hours per year (Tr. 5). Lone Star's counsel stipulated 

at the "trearing that it is a large company, that it operates a mine within 

the meaning of the Federal Mine Safety and Health Act of 1977, and that it 

is subject to the jurisdiction of the Commission (Tr. 4; 6). 

2. Exhibit No. 6 shows that Lone Star has paid penalties for 347 

alleged violations during the 24 months preceding August 13, 1979, the 

date on which the violation of 30 C.F.R. § 56.9-41 alleged in this proceeding, was cited. Lone Star has not been cited for a previous violation of 

section 56.9-41 (Tr. 7). 

3. Inspector Ronald J. Baril, Sr., was a duly authorized representative of the Secretary of Labor and the Mine Safety and Health Administration 

on August 11, 1979. On that day, he was asked by his supervisor to go to 

Lone Star's Jack Plant for the purpose of investigating an accident which 

had occurred at the plant about 3:45 p.m. on August 10, 1979 (Tr. 9; Exh. 5, 

p. 1). Other MSHA inspectors, a State inspector, and several company officials participated in the investigation (Tr. 10-11; Exh. 5). 

4. 1he Jack Plant has two locations where railroad cars may be loaded. 

The normal loading site is at a place which is referred to as the crusher 

and rewash bins which are located about the middle of the plant near the 

main railroad tracks of the Norfolk & Western Railway Company. An alternate 

loading site is at a loading ramp situated near s9me stockpiles which are 

about 1,000 feet east of the normal loading bins (Tr. 14; 158; Exhs. 5 

and C). 

5. On August 10, 1979, the day the accident occurred, a water pump had 

broken which had the result of preventing the loading of railroad cars at the 

bin area (Tr. 152). Four 70-ton hopper-type railway cars were situated in the 

bin area when the pump ceased to work (Tr. 14). Two of the cars had already 

been loaded from the bins and two of them were empty (Tr. 153). All four of 

the cars had been coupled together for purposes of loading and all four were 

pushed eastward to the stockpile loading ramp, or alternate loading area. 

The operator of the pushing vehicle, whose name is Mr. James A. Mays, stated 

that the drawhead on the front car was open when he pushed it to the loading 

ramp (Tr. 160). The loaded weight of hopper cars is approximately 

84-1/2 tons (Tr. 14; 77). 

6. Loaded railroad cars are kept at a site located at the extreme 

western part of the Jack Plant (Tr. 13; 114;-Exhs. 5, p. 3, and C). The 

cars are given a push with an end loader or a dump truck to get them started 

3441 
and then they are allowed to drift down a .6 of 1 percent grade to the 

storage area for loaded cars (Tr. 15; 119; 150-151; Exhs. Kand L). Each 

railroad car has a manually operated brake at one end of the car (Tr. 115). 

The manual brake is tightened or loosened by means of a wheel which is 

located on the end of the car (Exhs. 5, p. 2, and G). The person who 

operates the brake must stand on a small platform just below the braking 

wheel (Tr. 40; 70-74; 192-193; Exhs. E, G and H). The person who operates 

the manual brake is called a brakeman or "car dropper" because he controls 

the brake while the cars are being "dropped" from the loading area to the 

place where the loaded cars are stored until such time as the loaded cars 

are pulled away by a locomotive owned by the railway company (Tr. 16; 68; 

126; 128; 140; 180). 

7. On August 10, 1979, after the four railway cars mentioned in 

Finding No. 5 above had been loaded, Mr. Mays pushed the cars in a westerly 

direction for coupling with·the 13 other loaded cars which had already been 

"dropped" to the storage area for loaded cars. Mr. Mays could not push the 

cars farther than 400 feet because some switches were located 400 feet west 

of the loading ramp and Mr. Mays did not want to drive his pushing vehicle 

over the switches. It was Mr. Mays' duty, however, to be present at the 

loaded-car area when the cars being dropped arrived at that area. Therefore, 

Mr. Mays drove his pushing vehicle along a road parallel to the railroad 

track to the loaded-car area. Since Mr. Mays could drive faster than the 

loaded cars could be dropped, he was able to arrive at the loaded-car area 

and be in a position to watch the coupling of the four cars with the 13 

which were already present in the loaded-car storage area (Tr. 117; 154; 

157; 158-160; 165; 183). 

8. A person was assigned the responsibility of being the "car dropper" 

in each instance (Tr. 174). On August 10, 1979, Mr. James M. Brown, who was 

the operator of the rewash plant, assigned himself the job of being the ca·r 

dropper for the four cars which had just been loaded (Tr. 154). Mr. Brown 

gave Mr. Mays the signal to start pushing the cars and Mr. Mays pushed them 

in a normal fashion. Mr. Mays, as indicated above, then drove his pushing 

vehicle to the loaded-car storage area. Mr. Mays was watching Mr. Brown as 

he approached the coupling point •. Since Mr. Brown was standing on the front 

of the four cars being dropped to the loaded-car storage area, Mr. Mays could 

observe Mr. Brown just before the front car made impact with the rear of the 

13th car located in the storage area. Mr. Mays looked down at the drawhead 

just prior to the time when the front car was ready to hit the 13th car 

and noted that the drawhead was closed on the car being ridden by Mr. Brown 

(Tr. 160-165). 

9. Mr. Mays was only 15 or 20 feet from Mr. Brown at the time of the 

impact and Mr. Mays stated that the closed drawhead on the front car 

bypassed the drawhead on the 13th car so as to allow the front car to ~me 

into contact with the rear of the 13th car (Tr. 160; 163). The front.car 

and the 13th car came together with so much force that the brake wheel on 

the car ridden by Mr. Brown made an imprint on the rear of the 13th car 

(Tr. 94). The force of the impact is further illustrated by the fact 

3442 
that the 13 loaded cars were moved for a distance of from 12 to 14 feet 

and the cars being ridden by Mr. Brown rebounded after the impact for a 

distance of 8 feet (Tr. 23; 88; 93). Additionally, the force of the impact 

. was so great that the wheels on the front car on which Mr. Brown was riding 

were derailed (Tr. 91). The wheels on the remaining three cars being 

dropped remained on the tracks (Tr. 19; 95; Exh. 5, p. 4). 

10. Since Mr. Brown was on the front of the front car when it ran 

against the rear of the 13th car, Mr. Brown's body was crushed between the 

two cars as they came together (Tr. 166). Although Mr. Brown was alive 

immediately after the accident occurred, he died that same day at about 

5:30 p.m. in the Petersburg General Hospital (Exh. 5, p. 4) • .. 

-11. Mr. Mays, who observed the accident, is also an experienced car 

dropper. He stated that it is the duty of the car dropper to examine the 

drawhead on the front car and make sure that it is open so that it will 

couple with the drawhead on the rear car in the loaded-car storage area 

(Tr. 180). Although Mr. Brown stood just above the closed drawhead throughout the trip from the loading ramp to the point of impact with the 13th car, 

he failed to note that the drawhead was in a closed position (Tr. 99). 

Mr. Mays says he has also, on a few occasions, failed· to make sure that the 

drawhead was open before the cars he was dropping came into contact with 

the cars in the storage area (Tr. 173). At such times, nothing happened 

other than that the cars failed to couple (Tr. 171). Mr. Mays stated that 

the rate of speed the "dropped" cars are traveling affects the amount of 

bounce which occurs if coupling fails to take place (Tr. 177). On the occasions when Mr. Mays' cars did not couple because of his failure to open the 

drawhead, the rebound of the cars he was riding was only 2 feet (Tr. 177). 

12. After Inspector Baril had obtained all or most of the facts 

described above, he wrote on August 13, 1979, Citation No. 305912 alleging 

that Lone Star had violated 30 C.F.R. § 56.9-41 which provides "[o]nly 

authorized persons shall be permitted to ride.on trains or locomotives 

and they shall ride in a safe position" (Tr. ll; Exh. 1). 

13. Citation No. 305912 gives the following description of the conditions which caused the inspector to believe that respondent had violated 

section 56.9-41: "[A] brakeman was fatally injured while he was dr.opping 

4 loaded railroad cars. The victim was operating the brakes which [were] 

forward of the front car. The 4 cars he was dropping collided with the 

first of the 13 parked railroad cars in the plant storage area. The victim 

was standing on the brake platform in front of the lead car, when the two 

drawbars failed to couple, the car the victim was riding derailed and then 

collided with the first parked railroad car crushing the victim. The victim 

was not working in a safe position" (Exh. 1). 

14. Mr. George Bishop, another car dropper, testified that if he were 

to read a regulation which stated that a car dropper should ride in a safe 

position, he would consider that he could comply with such a regulation and 

still ride on the front of a car which is being dropped to the storage 
area (Tr. 192). Some reasons advanced by Lone Star's witnesses in support 

of their belief that riding the front car is safe are ( 1) that riding on 

the front enables the car dropper to observe the track in front of him at 

all times so as to be on the alert for people who may be working on 

switches or crossing the tracks (Tr. 168), (2) that riding on the front 

enables the car dropper to be on the lookout for any of the 1,200 trucks 

which cross the tracks each day (Tr. 118), (3) that riding on the front 

enables the car dropper to be. aware of materials which may build up at 

the truck crossing so as to cause derailment (Tr. 144-145), and (4) that riding 

on the front permits the car dropper to have the best possible vision of 

the coupling area at times when the weather is inclement so as to impair 

or obscure visibility (Tr. 35; 53; 62-64; 142). 

15. Lone Star's South Atlantic Division (which does not include the 

Jack Plant here involved) had a written safety regulation in effect on 

August 10, 1979, the date of the accident, which provides "7. Unless 

absolutely necessary, never ride leading car down grade end. Ride in 

between the cars or the trailing end" (Exh. 4). Lone Star's Regional 

Safety Director, Mr. Roger Vaughan, testified that the reason the South 

Atlantic Division had the above safety regulation was that the employees 

in the South Atlantic Division do not wear safety belts and they recognized 

that if they are riding on the front car without safety belts and should 

happen to fall, they would be more likely to be run over by the car's wheels 

than if they ride between cars or on the rear car (Tr. 130-131). 

16. Lone Star's Chesapeake Division (which does include the Jack Plant 

here involved) has 42 basic safety rules which all employees are required to 

follow. No. 12 of those rules provides that "[a]ny person required to ride 

moving railroad cars will wear safety belt hooked to car at all times when 

cars are in motion" (Exh. D). Mr. Vaughan stated that since the employees 

at the Jack Plant are required to wear safety belts, they do not need to 

follow the South Atlantic Division's Rule No. 7 prohibiting riding of the 

front car because the wearing of safety belts at the Jack Plant prevents car 

droppers from falling under the wheels of the front car in case they should 

slip (Tr. 131). 

17. Mr. Mays, one of Lone Star's witnesses, noted that a car dropper 

who is riding on the rear of the last car being dropped could fall and be 

run over by the pushing vehicle (Tr. 171). In view of the foregoing possiibility, the employees in Lone Star's South Atlantic Division, where the 

wearing of safety belts is apparently not required, are riding in an unsafe 

position when they ride on the rear of one or more cars. Employees in the 

Jack Plant would not be exposed to the hazard of falling under the wheels 

of the pushing vehicle because of their practice of wearing safety belts 

(Tr. 195). 

18. South Atlantic Division's Rule No. 5 provides that "[a]ny time 

three or more cars are dropped down the track there should be two people 

braking the cars" (Exh. 4). Only Mr. Brown was braking the four cars 

being dropped at the Jack Plant on August 10, 1979, but Mr. Vaughan did 

34.14 
not explain why it would not have been good policy for the employees at the 

Jack Plant to have followed the South Atlantic D.ivision' s Rule No. 5. The 

safety rules adopted for the Jack Plant after Mr. Brown was killed prohibit 

riding on the front of any car being dropped and also prohibit the dropping 

of more than three loaded cars at one time (Exh. I). 

19. It was the inspector's opinion that a car dropper is not complying 

with the provisions of section 56.9-41 if he is riding on the front of a car 

being dropped (Tr. 20; 84). He said that the car dropper should ride on the 

rear of one car being dropped, or between cars or on the rear of the last 

car, if more than one is being dropped'(Tr. 21; 40; 76; 80; 97). Lone 

Star's safety manager agreed that Mr. Brown would have been likely to escape 

serious-injury on the day of the accident if he had been riding between cars 

(Tr. 143). 

20. Although Lone Star's witnesses discussed the possibility that a 

car dropper might be pinched when he is riding between cars, no one was able 

to cite an occasion on which such an injury has ever occurred (Tr. 133; 169). 

One of Lone Star's witnesses, Mr. Mays, referred to a time when a malfunctioning switch caused the wheels on one car to go in one direction while the 

wheels on another car went in a different direction (Tr. 169). Mr. Mays 

said that he was glad no one was riding between cars when that event occurred, but he could not say for certain that anyone would have been killed 

on that occasion if he had been riding between the effected cars (Tr. 170). 

21. Exhibit A in this proceeding consists of a two-page memorandum 

written by the Secretary of labor's Office of the Solicitor. The writer 

of that memorandum discusses 30 C.F.R. § 77.1607(v) which contains language 

similar to that set forth in section 56.9-41 which is quoted in Finding 

No. 12 above. The writer of Exhibit A expresses the opinion that there 

might be circumstances in which an operator could be cited for a violation 

of section 77.1607(v) if a car dropper were observed to be riding on the 

front of cars which are about to be coupled. Exhibit.A also expresses 

the opinion that if MSHA is going to adopt a general policy under which 

operators will be cited for violations of section 77 .1607(v) any time a 

car dropper is observed riding on the front of a car, advance warning of 

that policy should be given before such an enforcement policy is instituted 

(Tr. 45-46; Exh. A). Inspector Baril had never seen or heard of the abovedescribed memorandum prior to the hearing held on August 12, 1980 (Tr. 46). 

22. Empty railroad cars are delivered to Lone Star's Jack Plant by 

the railway company. The location of the manually operated brake wheels 

varies from car to ~ar, so that when the cars are dropped after being 

loaded, the brake wheel may be on the front of one car and on the rear of 

the adjacent car. Lone Star has no facilities for turning the cars so as 

to cause the brake wheels to be uniformly located on the rear of all cars 

(Tr. 89-90). For that reason, if a single car needs to be dropped to the 

storage area, and the brake-control wheel is on the front of that single 

car, Lone Star would find it impossible to comply with section 56.9-41 if 

344~) 
that section is interpreted to prohibit the car droppers from riding on the 

front of the car (Tr. 58). After Citation No. 305912 was written, Lone Star 

prepared some new safety rules pertaining to the loading and dropping of 

railroad cars. Rule No. 5 of tqose regulations provides "[n]ever ride one 

loaded or empty car. Brake will be set and car will be pushed all way~ 

from loading to parking area". [F.mphasis is part of Rule No. 5.] (Exh. I; 

Tr. 127; 139). 

23. Cars being dropped from the loading area to the storage area have 

the right-of-way over vehicular traffic. The car droppers rarely see any 

persons walking in the vicinity of the' track (Tr. 197). Since the accident· 

on August 10, ~980, the car droppers have been riding on the rear car or 

between cars and they have had no difficulties in dropping cars from those 

positions (Tr. 128; 196). The employee who is pushing the cars can see 

down the track on one side of the cars being dropped, while the car dropper 

looks down the track on the other side of the cars. If either employee 

sees any hazard in front of the cars being dropped, he can notify the other 

person of the fact so that the car dropper can decrease the rate of speed 

or stop the cars being dropped (Tr. 196-197). 

Consideration of Parties' Arguments 

The Parties' Proposed Findings 

Respondent's brief (pp. 5-13) contains 50 proposed findings of fact. 

While the subjects discussed in respondent's 50 findings of fact may be 

found in the record on the pages and in the exhibits to which the findings 

of fact refer, I believe that the 23 findings of fact set forth above in 

this decision are preferable to those proposed by respondent because I have 

organized my findings of fact so as to make them a composite of the credible 

testimony of all witnesses on a given subject. As such, I believe they 

faithfully reflect all the facts on which my decision should be based. 

Petitioner's brief (pp. 3-8) contains a statement of facts. Here again, 

I prefer to rely upon the 23 findings of fact set forth above. I have provided more transcript and exhibit references in support of my findings than 

have been given in petitioner's brief. Some of the statements on pages 

three to eight of petitioner's brief contain ambiguities which could be misleading to the Commission if my decision should become the subject of the 

Commission's granting of a petition for discretionary review. For example, 

petitioner's counsel seems to be saying in the upper part of page six of her 

brief that the Jack Plant involved in this proceeding is located in Lone 

Star's South Atlantic Division. If that is what is being stated on page six, 

it would be contrary to the evidence which shows that the Jack Plant here 

involved is located in the Chesapeake Division (Finding No. 15 and 16, 

supra). Also on the lower part of page six of petitioner's brief, a sta~­

ment appears to the effect that when cars fail to couple, the knuckles · 

"always" override. · Mr. Mays testified that he had had the cars being 

dropped fail to couple on about a dozen occasions, but he said that the cars 

bounced back 2 feet and that nothing unusual occurred at the speed the cars 

were being dropped on those occasions. The testimony cited in petitioner's 

brief on pages six and seven fails to support a finding that the knuckles 

"always" override when cars fail to couple. 

3446 
Occurrence of Violation 

The primary issue raised in this proceeding is whether a violation of 

30 C.F.R. § 56.9-41 occurred. Respondent's brief (p. 4) states that it has 

contested this case because it does not believe that a violation occurred. 

If a violation, in respondent's opinion, had occurred, respondent would not 

have made an issue about payment of the civil penalty of $1,500 proposed 

by the Assessment Office. 

Respondent's brief (p. 2) quotes the language of section 56.9-41 which 

provides that "[o]nly authorized persons shall be permitted to ride on 

trains or locomotives and they shall ride in a safe position". Respondent 

states-that no question exists as to whether the person who was riding on 

the railway cars involved in this case was authorized to ride on the cars. 

Therefore, respondent concludes that the only question at issue in this case 

is whether the person who was fatally injured while riding on the front of 

the four railway cars being dropped to the loaded-car storage area was 

riding "in a safe position" within the meaning of section 56.9-41. 

Respondent's brief (p. 2) explores the areas which might be considered 

safe for riding on railway cars. Respondent states that many riding places 

would obviously be unsafe, such as riding on couplings or clinging to 

ladders while the cars are in motion. Respondent points out that transporting men between cars is not only unsafe, but is specifically prohibited 

by section 56.9-40(d) of the mandatory safety standards (Tr. 96). Respondent 

also argues that riding on the rear of a single car or group of cars would 

significantly obscure the forward vision of a car dropper ri~ing in that 

position (Finding Nos. 6 and 14, supra). 

On the basis of the foregoing discussion, respondent's brief (p. 2) concludes that on any given railway car, only one place appears to he safe for 

riding and that is the brake platform specifically provided by the car manufacturer for that purpose (Finding No. 6, supra). Respondent observes that 

the brake platform provides the car dropper with a definite place to stand 

where he has good footing and direct control over the braking mechanism. 

Respondent's brief (p. 3) continues its argument by observing that 

while the brake platform provides the car dropper with a safe place to ride, 

that safe location is sub'ject to certain disadvantages over which the car 

dropper has no control. Among those disadvantages, respondent notes, is the 

fact that the railway cars are constructed so that the brake platform and 

manual wheel for controlling the brakes are located on only one end of a 

given car. The railway company delivers the cars without giving any consideration to the direction of travel on respondent's premises and respondent 

has no facilities for turning the cars around or otherwise arranging them so 

that all of the brake platforms will be uniformly located on the opposite end 

from the direction of travel. 'llte result is that the car dropper may find 

that the brake platform and braking wheel are on the front of a single car, 

or on the front of the first of a group of cars, at the time the loaded cars 

need to be dropped to the loaded-car storage area (Finding No. 22, supra). 

3447 
Respondent's brief (p. 3) concludes from the above discussion that 

dangers are inherent in the dropping of railway cars and that the car dropper 

can never find an absolutely safe place to ride. Respondent argues that the 

inspector in this instance was under pressure because of the death of the 

car dropper to cite a violation of some mandatory health or safety standard. 

Respondent says that if the car dropper had been ri4ing between cars and he 

or some person had been injured or killed in an accident, that the inspector 

investigating that accident would either have cited a violation of section 

56.9-40(d), which prohibits the transportation of persons between cars, or 

of some other se~tion of the regulations. 

Respondent's brief (p. 4) states that it has been given no guidance 

from the Secretary of Labor or the Mine Safety and Health Administration as 

to how car dropping can best be accomplished. Respondent's brief claims 

that it has not ignored the problems involved in dropping cars and that it 

has.variations in its instructions as between operating divisions within 

respondent's total organization (Finding Nos. 15 and 16, supra). Respondent's brief states that since the occurrence of the accident involved in 

this case car droppers at the Jack Plant have been riding between cars or on 

the rear of cars and will continue to do so, but respondent argues that the 

fact that the car droppers will ride between cars or on the rear of cars 

means only that they will be riding in a different, but not necessarily 

safer, position than the position on the front of the car where the car 

dropper was riding when the accident here involved occurred. 

At first impression, the arguments in respondent's brief appear to have 

a great deal of merit. The question which has troubled me from the beginning 

of this case is whether an operator should be expected to know from reading 

the provisions of section 56.9-41 that his employees are prohibited by the 

language in that section from riding on the front of railway cars being 

dropped to the loaded-car storage area of his plant. For all practical purposes, section 56. 9-41 boils down to six words, namely, car droppers "shall 

ride in a safe position". 

When I read section 56.9-41 prior to the hearing, I was certain that 

I would not have known that the six words quoted above prohibited a car 

dropper from riding on the front of the car or cars being dropped. After I 

had heard the testimony of the inspector and respondent's three witnesses, 

however, I had an entirely different perspective upon which to base my 

response to the exhortation that car droppers "shall ride in a safe position." 

Therefore, section 56.9-41 must be interpreted on the basis of the 23 findings of fact set forth above in my decision. 

One should begin his initiation into the business of car dropping by 

examining Exhibit E which shows a car dropper standing on the brake platform 

on the front of a loaded car which is about to be dropped to the loaded-car 

storage area. The car dropper appears to be "in a safe position" becausene 

has his left hand free to grasp a handhold on the front of the car and he 

is wearing a safety belt which will prevent him from falling to the ground 

if he should slip. If one then looks at Exhibit F he will see the expanse 
of track which separates the car dropper from the other loaded cars onto 

which the car dropper expects to couple the car or group of cars on the 

front of which he is riding. lhe ~hove-described pictures show the car 

dropper on a clear day and show an unobstructed track area in front of him. 

'nlere is nothing about those two pictures which should cause anyone to conclude that the car dropper is riding in other than "a safe position". 

When one begins to add the facts revealed by the record in this case 

to the serenity reflected by Exhibits E and F, however, he begins to understand why the car dropper is not riding "in a safe position". First of all, 

in this case, the car dropper was riding on the front of four loaded cars. 

The empty weight of each car is 70 tons and its loaded weight is about 

84-1/2 ~ons. The car dropper, therefore, began his trip to the loaded-car 

storage - area with 338 tons of weight riding behind him (Finding No. 5, 

supra). The car dropper's momenttun is supplied initially by the pushing 

force of a truck or rubber-tired dozer. After the 338 tons of cars and materials start their journey, they can be stopped or slowed down only by application of a single manual brake on one of the four cars. No one knows the 

exact speed which the four cars were traveling on the day of the accident 

involved in this case, but the force of the impact of the cars being dropped 

against the 13 loaded cars in the storage area was so great that the 13 cars 

were pushed a distance of from 12 to 14 feet and the four cars being dropped 

rebounded a distance of 8 feet even though the front car was derailed by 

the collision. Moreover, the front car hit the rear of the 13th car with 

such force that the brake wheel on the front car being dropped left an 

imprint in the rear of the 13th car (Finding Nos. 9 and 10, supra). The 

operator of the Jack Plant has been dropping cars for 20 years and knows 

how much they weigh and how hard they are to slow down or stop even when 

they are moving at a low rate of speed. 

The evidence in this case also reveals that the car dropper has the 

obligation of making sure that the drawhead on the front of the car being 

dropped is open so that it will couple with the loaded cars in the storage 

area. The success of the coupling operation depends upon the drawheads 

being in an open position. The only eyewitness to the accident stated 

unequivocally that the car dropper who was fatally injured on the date of 

the accident involved in this proceeding failed to check the drawhead of the 

front car before he got on it for the dropping operation. The eyewitness 

who was situated within 15 feet of the point of impact, stated that he 

looked down at the drawhead a few seconds prior to the impact and observed 

that the drawhead was closed. lhe fact that the drawhead was closed prevented the cars from coupling. If the drawheads had properly meshed, the 

action of 'coupling would have kept the front car separated from the rear of 

the 13th car by about 3 feet, or the length of the two drawheads. The fact 

that the drawhead on the front car being dropped was closed caused the two 

drawheads to bypass each other and permitted the cars to come together so 

as to crush the body of the car dropper (Finding Nos. 9-10 and 13, supra). 

The eyewitness to the fatal accident testified that he had on about 

a dozen occasions failed to open the drawheads before dropping cars and that 

the cars had failed to couple on those occasions. No damage to the cars or 

injuries to the car dropper occurred on those occasions because the cars 

3449 
being dropped. were traveling slowly and the cars rebounded only 2 feet, as 

compared with the rebound of 8 feet in the case of the accident involved 

in this proceeding (Finding Nos. 10 and 11, supra). The operator of the 

Jack Plant must be held to have knowledge of the fact that the cars don't 

always couple and that the car droppers had been careless about making 

certain that the drawheads were open at the time the cars were started on 

their journey to the loaded-car storage area. 

The operator's witnesses in this proceeding gave several reasons for 

preferring that the car dropper ride on the front of the car or cars being 

dropped (Finding No. 14, supra). Those reasons primarily stressed the 

fact that when the car dropper rides on the front car, he has an unobstructed 

view of the track area which separates him from the loaded cars to which he 

intends to couple. The operator's safety manager emphasized the fact that 

trucks make 1,200 trips per day across the railroad tracks used for dropping 

cars. The presumption to be drawn from the operator's arguments about the 

need for the car dropper to have an unobstructed view of the railroad tracks 

is that the car dropper would have an opportunity to stop the cars being 

dropped if a vehicle or person should stop on the tracks while the loaded 

cars are being dropped. The difficulty with that argument is that the cars 

are difficult to stop after the pushing vehicle has started them to rolling. 

If an object does get on the tracks and the car dropper should be unsuccessful in stopping the cars being dropped at a time when the car dropper is 

riding on the front car, the car dropper runs the risk of being crushed 

against any vehicle which may stop on the tracks. Moreover, as one of the 

operator's witnesses p·ointed .out, persons seldom, if ever, walk in the 

vicinity of the tracks so as to be hit by moving cars. Additionally, the 

car dropper's view of the tracks in front of the car or cars being dropped 

is not greatly impaired in any event if he rides on the rear of the last 

car being dropped because the operator of the pushing vehicle can see the 

track area from one side of the cars being pushed while the car dropper 

is able to observe the track area from the other side of the cars being 

pushed (Finding No. 23, supra). 

Respondent's brief (p. 4) correctly notes that the car-dropping rules 

adopted by its various divisions are inconsistent. For example, the rules 

respondent's South Atlantic Division, of which the Jack Plant is not a part, 

specifically state that "[u]nless absolutely necessary, never ride leading 

car down grade end. Ride in between the cars or the trailing end" (Finding 

No. 15, supra). Respondent's safety manager explained that the reason the 

South Atlantic Division had a rule prohibiting the car droppers from riding 

on the front of a car is that the employees in the South Atlantic division 

do not wear safety belts and they felt that they should stay off the front 

of the cars lest they slip and fall tinder the wheels of the front car. The 

safety manager stated that since the car droppers at the Jack Plant wear 

safety belts, there was no reason for the Jack Plant to adopt a rule . _. 

prohibiting the riding of the front car because the car droppers at the 

Jack Plant are protected by their safety belts from falling under the wheels 

of the front car. 

3450 
The safety manager's justification for not having a rule prohibiting 

the riding of the front car at the Jack Plant was neutralized by the testimony of one of respondent's other witnesses who stated that riding on the 

rear car is dangerous because the car dropper may slip and fall under the 

wheels of the vehicle used to push the cars (Finding No. 17, supra). While 

the safety belts worn by the car droppers at the Jack Plant would protect 

them from falling under the wheels of the pushing vehicle, the employees in 

respondent's South Atlantic Division would not be protected from falling in 

front of the pushing vehicle because of their practice of failing to wear 

safety belts. The fact that the employees in any of respondent's various 

divisions have recognized the hazards inherent in riding on the front car or 

grou~of cars being dropped shows that respondent's management is aware of 

the hazards involved in riding on the front car. 

Although some of respondent's witnesses referred to the fact that it 

might be possible for a car dropper to be injured while he is riding between 

cars, the testimony of those witnesses stops short of being able to state 

that anyone riding between cars has been so injured and respondent's safety 

manager conceded that if Mr. Brown had been riding between cars on the day 

of the accident, he would, at most, have been exposed to a bruise or some 

other minor injury if he had been riding between cars when they failed to 

couple (Finding Nos. 19 and 20, supra). 

A legal memorandum (Exhibit A) written by a person in the Secretary 

of Labor's Office of the Solicitor discussed section 77.1607(v), which 

contains language similar to that in section 56.9-41 here at issue, and 

concluded that the language in that section, depending on the circumstances 

involved in a given situation, would support the writing of a citation for 

a violation of that section if a car dropper were to be observed riding on 

the front of a car or group of cars being dropped. I believe that the 

facts which I have discussed above would warrant the writing of the inspector's citation in this proceeding. Therefore, I do not believe that my 

finding of a violation of section 56.9-41 in this case is inconsistent with 

the legal opinion expressed by the Solicitor's Office in Exhibit A. 

I agree with the arguments advanced by the Secretary's counsel in her 

brief (pp. 8-13). On those pages, the Secretary's counsel notes that the 

definition of "safe", among other things, means to be free from damage, 

danger, or injury. The Secretary's counsel agrees with respondent that 

car dropping is a hazardous enterprise at best, but she points out that the 

hazardous nature of_ the work makes it essential that respondent require the 

car droppers to ride in the safest place available. She correctly contends 

that riding on the front of a car or the front car in a group of cars being 

dropped is the most dangerous place of all, that is, riding the front is 

more dangerous than riding between cars or on the rear of a group of cars 

(Finding No. 19, supra). Therefore, she concludes that respondent cannot 

permit the car droppers, as it was doing prior to the accident here involved, 

to ride wherever they determine is the most convenient position. 

I believe that the inspector satisfactorily explained why it is not 

inconsistent for section 56.6-40(d) to prohibit the transportation of persons 

between railway cars while section 56.9-41 is interpreted as requiring that 

3451 
persons working with moving cars be prohibited· from riding on the front 

of moving cars in order for them to be considered as riding "in a safe 

position". i'he inspector, when asked about that apparent inconsistency, 

stated that his recommendation that a car dropper ride between cars or on 

the rear of cars being dropped refers to a person who is performing a function related to production. The car dropper's job requires him to move 

railroad cars from one point to another. In doing that job, the car dropper' s safest position must be found and that is between cars or on the rear 

of cars, but if people are going to be transported from one place to another 

as passengers on trains, the safe position for them to ride, or be transported, is inside railroad cars rather than between the cars (Tr. 95-96). 

I adopt the inspector's interpretation of section 56.9-40(d) and find 

that respondent improperly refers to section 56.9-40(d) in its brief (p. 3) 

as if that section prohibits a car dropper from riding between cars which 

are being dropped to the loaded-car storage area. 

For the reasons given above, I find that respondent on August 10; 1979, 

the day of the accident, was in possession of knowledge pertaining to the 

hazards of allowing car droppers to ride on the front of a car or group of 

cars being dropped. An operator, having such a background of knowledge and 

experience as has been discussed above, should have known that allowing its 

car droppers to ride on the front car or group of cars was not in compliance 

with section 56. 9-41 because a car dropper riding the front car is not "in 

a safe position". 

Assessment of Penalty 

Having found above that a violation of section 56.9-41 occurred, I 

shall now consider the six criteria set forth in section llO(i) of the 

Act for the purpose of assessing a pena~ty. 

It was stipulated by the parties that respondent is a large operator. 

Therefore, any penalty assessed should be in an upper range of magnitude 

insofar as it is determined on the basis of the criterion of the size of 

respondent's business (Finding No. 1, supra). 

Respondent presented no evidence pertaining to its financial condition. 

Therefore, in the absence of any facts to the contrary, I find as to a second 

criterion that payment of penalties will not cause respondent to discontinue 

in business (Buffalo Mining Co., 2 IBMA 226 (1973), and Associated Drilling, 

Inc., 3 IBMA 614 (1974)). . 

Although respondent has a history of previous violations showing· that 

respondent has paid penalties for 347 prior violations during the 24-month 

period preceding the issuance of Citation No. 305912, it has been my practice 

to increase a penalty under the criterion of history of previous violaf1ons 

only when the violation before me has been violated on one or more prior 

occasions. Inasmuch as respondent has not previously been cited for a 

violation of section 56.9-41, the criterion of history of previous violations 

will not be used either to increase or decrease the penalty assessable under 

the other five criteria (Finding No. 2, supra). 

3452 
Respondent demonstrated a very good faith effort to achieve rapid compliance after Citation No. 305912 was written because the citation was terminated within the time originally provided for in the inspector's citation. 

The evidence shows that the new rules adopted by respondent, among other 

things, prohibit riding on the front of cars being dropped, prohibit the 

dropping of more than three loaded cars at one time, require the checking 

of the drawhead to make sure the coupling is open before cars ~re dropped~ 

and caution that pushing be done at a slow speed at all times (Finding 

No. 18, supra; Exh. I). lbe ~nspector's subsequent action sheet states 

that the company's new rules would probably have been enforced even sooner 

than they were had not all production been stopped on August 14, 1979, so 

that respondent's employees could attend funeral services for the person 

who wa~ killed in the accident on August 10 (Exh. 2). Therefore, respondent 

wilrl>e given full credit for having shown very good faith in achieving 

rapid compliance. 

As to the criterion of negligence, counsel for the Secretary argues 

in her brief (pp. 13-14) that respondent was "excessively negligent" for 

several reasons. She claims that respondent had a regional policy prohibiting the riding of the front car, but that respondent failed to invoke that . 

rule at the Jack Plant. She also notes that respondent had no formal training program for car droppers and allowed them to learn how to drop cars by 

watching "experienced" car droppers who habitually rode on the front of cars 

being dropped. She argues that respondent's failure to publish any guidelines for the dropping of cars at the Jack Plant left the car droppers 

free to follow procedures which were unsafe, such as allowing cars to be 

dropped at excessive speeds and without properly checking to see that the 

drawheads were open prior to dropping. 

There is some merit to the claims in the Secretary's brief to the 

effect that respondent was "excessively negligent", but the record does 

show that respondent is a safety-minded company in many respects. For 

example, each employee in respondent's Chesapeake Division, which includes 

the Jack Plant, was required to read and sign a list of 42 safety rules and 

certify that he or she had read the rules and had agreed to follow them so 

as "* * * to perform my job in the manner that is the safest for me, my 

fellow employees, and my equipment" (Exh. I; Finding No. 16, supra). Among 

the rules which the employees at the Jack Plant are required to follow is a 

requirement that employees wear safety belts at all times if they ride on 

moving railroad cars. Employees are also prohibited from getting on and off 

of moving equiJX11ent at any time. Employees are advised in Rule No. 42 of 

the list of safety rules that violation of any of the safety rules will be 

cause for disciplinary action. 

Consequently, while respondent did not at the Jack Plant enforce a rule 

prohibiting the riding on the front of cars being dropped while such a rule 

was in force in its South Atlantic Division (Finding No. 15,. supra), it cannot be said that respondent was completely indifferent about operating its 

plant in a safe manner. lbe most negligent aspect of respondent's actions 

was its failure to publish any specific written rules with respect to the 

dropping of cars (Tr. 142). Also respondent's management did not pay enough 

attention to the careless manner in which the cars were being dropped by 

345:1 
Mr. Brown who was fatally injured on August 10. That employee not only 

failed to make sure the drawhead was open before the cars were started on 

their trip to the .loaded-car storage area, but also dropped the cars at an 

excessive speed. The foregoing conclusion is supported by the fact that the 

front car derailed and all of the cars rebounded a distance of 8 feet, 

whereas when cars are traveling at a slow speed and fail to couple, they 

rebound for a distance of only 2 feet (Finding Nos. 9 and 11, supra). Therefore, I find that the violation was accompanied by a relatively high degree 

of negligence. 

As to the criterion of gravity, the Secretary's brief (pp. 15-16) contends that the violation was very serious. In support of that contention, 

the Secretary's counsel argues that the probability of occurrence of a 

serious accident was very high because it repeatedly happens at the Jack 

Plant that the front car fails to couple with the loaded cars in the storage 

area because of the car dropper's oversight in opening the drawhead before 

the cars are dropped. She argues that the great weight of the cars being 

dropped, the fact that the cars on August 10 were being dropped at an excessive speed, the lack of a training program, and the riding of car droppers 

on the front car, all contributed to the likelihood of occurrence of a 

serious accident and made the riding of the front car a very serious act. On 

the basis of the reasoning set forth above, the Secretary's counsel recommends assessment of a maximmn penalty of $10,000. 

There is merit to the arguments advanced by the Secretary's counsel in 

support of her claim that the violation was very serious. The fact that 

Mr. Brown was riding in an unsafe position when he was fatally injured 

demonstrates beyond any doubt that the violation was serious. As has been 

mentioned above, all the witnesses agreed that dropping cars is a hazardous 

type of work. The evidence supports a finding that riding on the front car 

is the most unsafe position that a car dropper can assume. Yet all of the 

car droppers were habitually riding on the front of the first car where they 

were more likely to be crushed if the cars failed to couple than if they had 

been riding between cars or on the back of the last car, and the cars had 

failed to couple. Therefore, I find that the violation was very .serious. 

Considering that a large operator is involved, that there was a very 

good faith effort to achieve rapid compliance, that respondent has no history 

of a previous violation of section 56.9-41, that payment of penalties will 

not cause respondent to discontinue in business, that the violation was accompanied by a relatively high degree of negligence, and that the violation was 

very serious, I find that a penalty of $6,000 should be assessed. 

WHEREFORE, it is ordered: 

Lone Star Industries, Inc., within 30 days from the date of this 

decision, shall pay a civil penalty of $6,000.00 for the violation of .. 

30 C.F.R. § 56.9-41 charged in Citation No. 305912 dated August 13, 1979. 

~CJ. ~:t;JJ£~~ 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

3454 

-
Distribution: 

-

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) 

William I. Althen, Esq., and Barry M. Hartman, Esq., Attorneys for 

Lone Star Industries, Inc., Smith, Heenan, Althen & Zanolli, 

1730 Rhode Island Avenue, NW., Washington, DC 20036 (Certified 

Mail) 

3455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ITMANN COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6210/11/12 

S 0 JUN 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-140 

A.O. No. 46-01576-03032 

Itmann No. 3A Mine 

DECISION AND ORDER 

After a careful _review of the parties' prehearing submissions and 

a lengthy prehearing conference call on June 12, 1980, the triai judge, 

upon inquiry of the parties, expressed the view that the two citations for 

inadequate preshift examinations, 30 C.F.R. 75.303,were underassessed 

because of testimony given in a proceeding, WEVA 80-230, relating to one 

of the conditions involved in the failure to adequately preshift. 

Upon further inquiry, the trial judge informed the parties he would approve 

a settlement of Citation 657220 in ,the amount of $700 and Citation 657564 

in the amount of $300. l/ 

1/ The amounts initially assessed were $130 and $114 respectively. 

The ope_rator suggested the settlement discussion because of the disproportion 

between the expense of a full-scale trial-type hearing, approximately 

$2,000, and the amounts involved in the violations cited. This I 

believe is highly commendable. The trial judge has repeatedly suggested 

that under its de novo authority to "assess" penalties (section llO(i)) and 

to "approve" proposals to "compromise, mitigate, or settle" penalties 

(section llO(k)), the Commission encourage the use of informal pretrial 

procedures to' effect just, speedy and inexpensive dispositions of cases 

or violations where the amount involved does not warrant the convening 

of a trial-type hearing or there is no genuine dispute of material .. --

adjudicative fact. The Commission, however, apparently believes, I think 

wrongly, that upon a notice of contest an operator has an absolute right 

to a full blown testamentary hearing regardless of whether the amount 

involved is $40 or $4,000. See, Peabody Coal Company, 2 FMSHRC 1035 (1980). 

3450 
Settlement at the amount initially assessed was denied early on 

because the trial judge perceived an issue which he believed deserved 

further ventilation. 2/ This ventilation occurred in the course of 

the parties' pretrial-P.reparation and as a result of the availability of 

the transcript in the related proceeding. 

As a result of the prehearing conference call, the parties have 

moved for approval of a settlement in the amounts suggested by the trial 

judge. 

Since I find 

and policy of the 

be,,_gnd hereby is 

2/ There obviously are cases where regardless of the low amount of 

the initial assessment and the parties' desire to settle the judge is 

warranted in requiring further explanation before deciding a trial-type 

proceeding is unnecessary. And there are also cases where an operator 

may, because of the repetitive nature of a condition which it believes 

is not subject to citation, be able to justify a trial-type hearing even 

though the amount involved in the test case is relatively insignificant. 

These are matters best left for determination on a case-by-case basis subject 

to review only for an abuse of discretion. 

Distribution: 

Barbara Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

*u.s. GOVERNMENT PRINTING OFFICE: 1980-341"638/3462 

3457