INDEX MAY/JUNE 1980
Commission Decisions
6-02-80
6-06-80
6-12-80
6-12-80
6-23-80
6-30-80

Old Ben Coal Company
Oracle Ridge Mining Partners
C.C.C.-Pompey Coal Co. Inc.
J.P. Burroughs & Son Inc.
Crescent Coal Co.
Allis-Chalmers Corporation

VINC 75-267
WEST 79-248
PIKE 79-125-P
LAKE 80-223-M
PIKE 77-71
LAKE 80-242-DM

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

1187
1192
1195
1199
1202
1207

Administrative Law Judge Decisions
5-07-80
5-13-80
5-14-80
5-14-80
5-15-80
5-20-80
5-21-80
5-29-80
5-29-80
5-29-80
5-30-80
5-30-80
5-30-80
5-30-80
6-03-80
6-03-80
6-03·-80

6-03-80
6-04-80
6-05-80
6-09-80
6-09-80
6-10-80
6-10-80
6-10-80
6-12-80
6-12-80
6-12-80
6-12-80
6-12-80
6-13-80
6-13-80
6-13-80
6-13-80
6-13-80
6-13-80
6-16-80
6-16-80
6-17-80

BARB 78-689-P
Peabody Coal Company
Kaiser Steel Corporation
DENV 78-512-P
United States Steel Corporation
PENN 79-97
KENT 79-281
Call and Ramsey Coal Co. Inc.
Farrell-Cooper Mining Co.
CENT 79-70
Eastern Associated Coal Corp.
WEVA 80-120-R
Mathies Coal Company
PENN 79-149-R
Kentucky Carbon Corporation
KENT 79-142-R
Peabody Coal Company
KENT 79-11
SE
79-57-M
Grove Stone and Sand Company
Bethlehem Mines Corporation
PITT 79-91-P
Phelps Dodge Corporation
WEST 79-349-DM
Rose Coal Company
LAKE 79-94
HOPE 79-241
Bishop Coal Company
WEST 79-274-M
Asarco, Inc.
LAKE 79-231-M
Superior Sand & Gravel, Inc. and
Patrick K. Thornton
WEST 79-168-M
FMC Corporation
Secretary of Labor, MSHA, and
VA
79-62-R
United Mine Workers of America
Phillips Uranium Corporation
CENT 79-281-M
Frank J. Bough, employed by Peabody
VINC 79-247-P
Coal Co. and
Peabody Coal Company
Gex Colorado Inc., (Contestant) v. MSHA.WEST 80-306-R
Ideal Basic Industries-Cement Divn.
SE
79-16-M
U.S. Steel Corporation
PENN 79-31
Morton Salt Divn: Morton-Norwich Prod. CENT 79-48-M
Marshfield Sand & Gravel, Inc.
YORK 79-68-M
Kelmine Corp.
WEST 79-392-M
Hyannis Sand and Gravel Inc.
YORK 80-60-M
Hyannis Sand and Gravel Inc.
YORK 80-39-M
Consolidation Coal Co.
WEVA 80-333-R
C and K Coal Co.
PENN 79-60
The Anaconda Co.
WEST 79-128-M
The Anaconda Co.
WEST 79-136-M
The Anaconda Co.
WEST 79-137-M
Kennecott Copper Corp
WEST 79-275-M
The Anaconda Co.
WEST 79-316-M
WEST 79-130-M
The Anaconda Co.
Kessler Coals Inc.
WEVA 80-159-D
Gregoire Coals Inc.
WEVA 80-74
The Hanna Mining Co.
LAKE 79-101-M et al

Pg. 1211
Pg. 1220
Pg. 1225
Pg. 1237
Pg. 1239
Pg. 1242
Pg. 1246
Pg. 1253
Pg. 1258
Pg. 1261
Pg. 1265
Pg. 12.71
Pg. 1289
Pg. 1296
Pg. 1305
Pg. 1308
Pg. 1315
Pg. 1325
Pg. 1329
Pg. 1331
Pg. 1347
Pg. 1352
Pg. 1376
Pg. 1381
Pg. 1391
Pg. 1397
Pg. 1399
Pg. 1401
Pg. 1403
Pg. 1410
Pg. 1414
Pg. 1418
Pg. 1423
Pg. 1427
Pg. 1434
Pg. 1437
Pg. 1441
Pg. 1444
Pg. 1446

6-17-80
6-19-80
6-19-80
6-19-80
6-19-80
6-20-80
6-23-80
6-24-80
6-24-80
6-24-80
6-24-80
6-24-80
6-24-80
6-25-80
6-25-80
6-25-80
6-25-80
6-26-80
6-27-80
6-27-80
6-27-80

E & J Coal__Co!_p ..
HOPE 79-3-P
Clemens Coal Co.
CENT 79-32
WEVA 79~172-R
U S Steel Corp.
Oatville Sand & Gravel co. and Vic's
CENT 79-40-M
Sand & Gravel Co.
VA
Island Creek Coal Co. & Langley and
79-81-D
Morgan Corp
CENT 79-152-M
American Colloid Co.
DENV 79-530-PM
St. Clair Lime Co.
WEST 80-121-R
Harrison-Peltion
Kincheloe & Sons Inc.
WEST 79-377-M
Morton Brothers
CENT 79-3-M
Kanawha Coal Co.
WEVA 80-40
BARB 79-311-PM
Thor Mining Co.
Margin Coal Company, Inc.
KENT 79-149
KENT 79-4
Ely Fuel Company
PIKE 79-119-PM
Eaton Sand & Gravel Co.
BARB 78-420-P
Shamrock Coal Co.
United States Steel Corporation
WEVA 79-343-R
United Mine Workers of America and
WEVA 80-7-R
Itmann Coal Co.
Kanawha Coal Co/Beckley Coal Mining Co. WEVA 80-150
Noto Excavating, Inc.
YORK 79-104-M
King Knob Coal Co. Inc.,
WEVA 79-360

Pg. 1463
Pg. 1511
Pg. 1515
Pg. 1522
Pg. 1529
Pg. 1546
Pg. 1555
Pg. 1563
Pg. 1570
Pg. 1572
Pg. 1576
Pg. 1592
Pg. 1608
Pg. 1614
Pg. 1618
Pg. 1624
Pg. 1631
Pg. 1643
Pg. 1658
Pg. 1676
Pg. 1679

Comnission Decisions
June 1 - 30, 1980

JUNE
The following cases were Directed for Review during the month of June:
Secretary of Labor, MSHA v. J.P. Burroughs & Son, Inc., LAKE 80-223-M.
(Judge Broderick, April 29, 1980)
Secretary of La~or, MSHA v. Kaiser Steel Corporation, DENV 78-512-P.
(Judge Broderick, May 13, 1980)
Secretary of Labor, MSHA v. New Jersey Pulverizing Company, YORK 79-94-M.
(Judge Kennedy, May 16, 1980)
Review was Denied in the following cases during the month of June:
Secretary of Labor, MSHA v. Peabody Coal Company, KENT 80-124.
(Judge Steffey, April 29, 1980)
Secretary of Labor, MSHA v. Helvetia Coal Company, PENN 79-165-R, etc.
(Judge Laurenson, April 29, 1980)
Secretary of Labor, MSHA v. Peabody Coal Company, CENT 79-29, etc.
(Judge Laurenson, May 7, 1980)

- ;:;:D~RAL :vHNE SAFETY .AND HEALTH ;iEVIEW COMMISSION
- - 1730 K STREET NW, 6TH FLOOR
WASHl~GTON, D.C.

20006

v.

June 2, 1980
Docket Nos. VINC 75-267
75-269
75-270
75-271
75-273

OLD BEN COAL COMPANY

IBMA No. 76-21

SECRETARY OF LABOR,
HINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

DECISION
This proceeding arises under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. §801 ~~· (1976 & Supp. I 1977)[the
1969 Coal Act]. 1/ It involves the provisions for issuance of orders of
withdrawal set forth in section 104(c) of that Act. l_I
1/ On March 9, 1978, this case was pending on appeal before the Secretary of Interior's Board of Mine Operations Appeals. This appeal is
before the Commission for disposition under section 301 of the Federal
Mine Safety and Health Amendments Act of 1977, 30 U.S.C.A. §961 (1978).
l_/ Section 104(c) of the 1969 Coal Act provided:
(1) If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that there has been a violation
of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a
mine safety or health hazard, and if he finds such violation to be
caused by an unw~rrantable failure of such operator to comply with
such mandatory health or safety standards, he shall include such
finding in any notice given to the operator under this Act. If,
during the same inspection or any subsequent inspection of such
mine within ninety days after the issuance of such notice, an
authorized representative of the Secretary finds another violation
of any mandatory health or safety standard and finds such violation
be also caused by an unwarrantable failure of such operator to
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 (d) of this section, 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.
(2) If a withdrawal order with respect to any area in a mine
has been issued pursuant to paragraph (1) of this subsection, a
withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under paragraph (1)
of this subsection until such time as an inspection of such mine
discloses no similar violations. Following an inspection of such
mine which discloses no similar violations, the provisions of
paragraph (1) of this subsection shall again be applicable to that
mine. [Emphasis added.]
80-6-1
1187

In October -1974-,- ariining Enforcement and Safety Administration
(MESA) inspector issued five orders of withdrawal to Old Ben Coal
Company. The orders stated that they were issued under the authority of
section 104(c)(l) of the 1969 Coal Act. Old Ben filed an application
for review of the withdrawal orders.
At the hearing, the parties stipulated in substance the following
facts:
1) 0n·July 9, 1974, MESA issued notice 2-MK to Old Ben
under section 104(c)(l) of the 1969 Coal Act.
2) On October 1, 1974, a section 104(c)(l) order of
withdrawal (1-WRM) was issued based on the underlying
July 9th notice •.
3) On October 19th and October 21st, four additional
section 104(c)(l) withdrawal orders were issued. These
withdrawal orders refer to the section 104(c)(l) notice
of July 9.
4) A fifth order of withdrawal described an underlying
section 104(c)(l) notice that had been issued on July 11,
1974.
Old Ben argued that the five withdrawal orders issued on October 19
and 21 were issued more than 90 days after the underlying section
104(c)(l) notices and were therefore issued contrary to the provisions
of section 104(c)(l) of the 1969 Coal Act. MESA agreed that more than
90 days elapsed between the underlying notices and the issuance of the
withdrawal order~ in question. However, MESA argued, inter alia, that
the passage of 90 days ceased to be determinative after the issuance on
October 1, 1974 of the first section 104(c)(l) order; that the orders
issued during the October 19 and 21 inspections became section 104(c)(2)
orders for which there is no 90-day limit.
A written opinion was rendered by the judge on July 16, 1975. He
concluded that the first withdrawal order issued under section 104(c)
must be issued within 90 days after the issuance of the underlying
notice of violation. Noting the issuance on October 1, 1974 of a
section 104(c)(l) order of withdrawal (1-WRM) within 90 days after the
issuance of the underlying July 9 and 11 notices, the judge held that
the circumstances presented in this case would support the issuance of
withdrawal orders under section 104(c)(2) of the 1969 Coal Act. He
found no conceptual distinction between section 104(c)(l) and section
104(c)(2) orders of withdrawal, and held that Old Ben~ which was charged
with knowledge of the intervening October 1 order issued under section
104(c) (1), was not prejudiced by a "clerical" mistake by the MESA
0

1188

--- ., ---

-~-

inspector in.indicating on the face of the documen.ts that the withdrawal
orders in question were issued under section 104(c)(l), rather than
under section 104(c)(2). Accordingly, the judge held that each of the
orders under review was properly issued under section 104(c) of the 1969
Coal Act. The applications for review of the withdrawal orders were
dismissed.
Old Ben appealed the judge's decision to the Board of Mine Operations Appeals. It again argued that because the withdrawal orders were
issued more than 90 days after the issuance of the underlying notices,
they were not validly issued under section 104(c)(l). 1/
The primary issue before us is whether the judge erred in finding
that the withdrawal orders in question were validly issued under section
104(c) of the 1969 Coal Act. We hold that he did not.
Subsection (1) of section 104(c) provided for the issuance of a
withdrawal order within 90 days after the issuance of an underlying
notice. After an order of withdrawal was issued under subsection (1),
subsection (2) provided for additional orders of withdrawal based on
violations similar to that which led to the first, without regard to
time limitations, and until there had been an inspection of the mine
which revealed no such similar violations.
The parties stipulated that the underlying July 1974 notices were
the predicate for an order of withdrawal issued under subsection (1) on
October 1, 1974 (1-WRM). They also stipulated that the orders in
question were subsequently issued based on the same July 1974 notices.
Thus, under the scheme set forth in section 104(c), the latter orders of
withdrawal were authorized by subsection (2). That they were facially
issued under subsection (1) is the crux of the instant dispute.
We hold that the judge had the authority under section 105(b) of
the 1969 Coal Act 4/ to modify the withdrawal orders from 104(c)(l) to
(c)(2) in his written decision after hearing, and the effect of what he
'}__/ Old Ben also argued that the judge erred in not dismissing the
withdrawal order in Docket No. VINC 75-273. It contended that notice
1-HG issued on July 11, 1974, as the underlying notice for that order,
had been vacated by another judge in a separate proceeding. We take
official notice, however, of the subsequent developments in Docket No.
VINC 75-246, the proceeding to which Old Ben refers. The initial decision in that docket was appealed to the Board of Mine Operations Appeals
(IBMA 76-5) and it was in turn remanded for further consideration. In
June 1977, the judge assigned to that case issued a second decision, in
which notice 1-HG was affirmed. (VINC 75-246, et al, June 23, 1977).
!±_/ Section 105(b) of the 1969 Coal Act provided: ~
Upon receiving the report of such investigation, the Secretary
shall make findings of fact, and he shall issue a written decision,
incorporating therein an order vacating, affirming, modifying, or
terminating the order, or the modification or termination of such
order, or the notice, complained of and incorporate his findings
therein.

1189

did is just that. We note, as the judge did in his written decision,
that Old Ben was in no way prejudiced. Old Ben did not claim lack of
notice, and it did not otherwise indicate how its defense to a withdrawal order issued under section 104(c)(2) would differ from its
defense to an order issued under section 104(c)(l).
For the foregoing reasons, the withdrawal orders in issue are
affirmed.

1190

Distribution
David J. Millstone, Esq.
Michael C. Hallerud, Esq.
Squire, Sanders & Dempsey
1800 Union Commerce Bldg.
Cleveland, Ohio 44115
Robert A. Meyer
1725 Midland Bldg.
Cleveland, Ohio 44115
Robert Araujo, Esq.
Old Ben Coal Company
125 South Wacker Drive
Chicago, Illinois 60606
Thomas A. Mascolino, Esq.
Cynthia Attwood, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Chief Administrative Law Judge James A. Broderick
FMSHRC
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

1191
\

FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 6, 1980
SECRETARY OF LABOR,
MINE SAFETY AND lIEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 79-248-M

v.
ORACLE RIDGE MINING PARTNERS
DECISION
In this civil penalty proceeding, the administrative law judge held
that Oracle Ridge Mining Partners violated a mandatory safety standard
and assessed a civil penalty of $122.
We reverse the judge's decision.
A Mine Safety and Health Administration inspector issued a citation
to Oracle Ridge alleging a violation of .30 CFR §57.6-ZO(c). That
regulation requires:
Magazines shall be: *** Constructed substantially of
noncombustible material or covered with fire-resistant
material.
The citation provided:
•.• The explosives and detonators magazines were not constructed of substantial material. The magazines were constructed of aluminmn sheeting.
The two magazines were constructed of aluminmn sheeting l/16th of an
inch thick and the detonator magazine was lined with 3/4-inch plywood.
The magazines were located in cutouts in the side of a mountain.
The judge held that the "constructed substantially of noncombustible
material" provision of the regulation must be interpreted in light of
the definition of "substantial construction" in 30 CFR §5 7. 2, i.e.,
"constructed of such strength, material and workmanship that the object
will withstand all reasonable shock, wear, and usage to which it would
be subjected." Under his interpretation, the standard effectively
requires two duties of operators: to construct magazines to minimize
risk of fire, and to construct magazines of sufficient density to

1192

80-6-g

"withstand all reason~bl_~ shock, wear and usage." He accepted the
inspector's testimony that a rock could fall on top of the magazines,
pierce the aluminum, and set off the detonators. He found that because
of the potential rock fall hazard, the magazines would not withstand.
"reasonable shock, wear, and usage" to which they would be subjected.
Accordingly, the judge determined that the operator did not comply with
the density requirement of the standard, and assessed a civil penalty.
On review Oracle Ridge argues that the judge erroneously construed
the standard to require that magazines be built in accordance with the
definition of "substantial construction" in 30 CFR §57 .2. The operator
maintains that the standard was intended only to minimize the risk of
fire and that this purpose is not related to the density of magazine
construction. We agree.
Section 57.6-20(c) permits alternative methods of compliance:
Magazines shall be "constructed substantially of noncombustible
material" or "covered with fire-resistant material." This latter meth6d
of complia;ce obviously is directed solely at fire prevention. Because
complian~e can thus be achieved without regard to densityby covering
the magazines with fire-resistant material, compliance by the
alternative method of having magazines "constructed substantially of.
noncombustible material" obviously is also satisfied with regard to fire
prevention only, and without regard to density.
Accordingly, we hold that 30 CFR 57.6-20(c) requires that magazine,s
be constructed for the most part of noncombustible material or covered
with fire-resistant material. We reject the judge's interpretation
which imposes a density requirement for compliance with the standard. 1/
The decision of the judge is reversed.

lman Nease, Commissioner

1/ Our decision is restricted to the conclusion that the purpose of the
;tandard cited, 30 CFR 57.6-20(c), is limited to fire prevention. We do
not reach the issue of whether an operator has a duty to build magazines
of sizeable bulk to withstand all reasonable shock, wear and usage.
Cf., ~._g_., 30 CFR 5 7. 6-20 (d). Scrutinizing and rewriting of this regulation by the Secretary would appear to be appropriate, however, if his
intention is to mandate such a duty.

1193

Distribution
Stephen W. Pogson, Esq.
Evans, Kitchel & Jenkes
363 North First Ave.
Phoenix, AZ 85003
Thomas A. Mascolino, Esq.
Debra Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge Paul Merlin
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

1194

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6iH FLOOR
WASHINGTON, D.C. 20006

June 12, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PIKE 79-125-P

C.C.C.-POMPEY COAL COMPANY, INC.
DECISION
A Mine Safety and Health Administration inspector cited
c.c.C.-Pompey Coal Company, Inc. ("Pompey") for an accumulation of
combustible materials on the electrical components of a scoop. The
citation alleged the accumulation constituted a violation of 30 CFR
§75.400. 1/ The Secretary sought a penalty under section 110 of the Act
for the alleged violation. The administrative law judge ruled the
Secretary had not proved the violation and dismissed his petition for
assessment of a civil penalty.
On September 27, 1979, at the conclusion of the evidentiary
hearing, the judge issued an oral bench decision in favor of Pompey.
The judge found that an accumulation of combustible materials did exist
and that Pompey knew or should have known of its existence. He held,
however, that the Secretary failed to establish a violation of section
75.400 because the MSHA inspector did not know how long the accumulation
had been on the machine and thus could not establish that the operator

1./

Section 75.400 provides:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustib.le materials, shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment therein.

80-6-.1..3

1195

failed to clean it up within a reasonable time. 'l:_/ On January 28, 1980,
the judge's bench decision was reduced to writing and was issued in
written form by the Commission's Executive Director. For the reasons
discussed below, we revers·e and remand.
On December 12, 1979, in the interim between the judge's oral and
written decisions, we reversed the Board's decision in Old Ben and
rejected its reasoning with regard to the elements of proof necessary to
establish a violation of section 75.400. Old Ben Coal Co., 1 FMSHRC
1954, 1 BNA MSHC 2241, 1979 CCH OSHD ,[24,084 (1979). 3/ We held that
"[t]he language of the standard, its legislative hist-;ry, and the
general purpose of the Act all point to a holding that the standard is
violated when an accumulation of combustible materials exists." 1
FMSHRC at 1956. We stated that section 75.400 is "directed at
preventing accumulations in the first instance, not at cleaning up the
materials within a reasonable period of time after they have
accumulated." Id. at 1957. Nevertheless, in his written decision of
January 28, 1980:- the judge stated that because his bench decision of
September 27, 1979, was "final insofar as the parties were concerned",
he did not believe that he should amend his bench decision so as to
conform to our intervening decision in Old Ben. In the judge's view,
the Board's Old Ben decision was the "applicable law" at the time that
his bench decision was rendered.

2/
The judge based his holding on a decision by the former Interior
Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977).
In that case, the Board had set out three elements of proof necessary to
establish a violation of 30 CFR §75.400. Those elements of proof were:
1) that an accumulation of combustible materials existed; 2) that the
operator knew or should have known of the existence of the accumulation;
3) that the operator failed to clean up, or to undertake to clean up,
the accumulation within a reasonable time after the accumulation was
discovered or should have been discovered by the operator. With respect
to this case, because the inspector did not know the length of time that
the accumulation existed, the judge concluded that the Secretary did not
satisfy the Board's third criterion and, as a result, failed to establish
a violation of section 75.400.

3/
The Board's decision in Old Ben Coal Co., 8 IBMA 98 (1977), was
before the Commission upon remand from the D.C. Circuit. See Old Ben
Coal Co., 1 FMSHRC at 1955.

1196

We hold that a judge's decision is not final insofar as the parties
are concerned until it is issued in writing by the Commission's
Executive Director. Rule 65, 29 CFR §2700.65. !±_/ Thus, the judge's
decision in this case was not final until it was issued on January 28,
1980. Because a judge is bound to follow prior Commission precedent,
the judge here erred in not applying the principles set forth in our
decision in Old Ben Coal Co., 1 FHSHRC 1954 (1979). 'i._/
Accordingly, the judge's decision
further proceedings consistent

remanded for

ommissioner

L~lllLU~ '~--

Rule 65 in part provides:
(a) Form and content of tke Judg s decision. The Judge shall
make a decision that constitutes his final disposition of the
proceedings. The decision shall be in writing and shall include
findings of fact, conclusions of law, and the reasons or bases for
them, on all the material issues of fact, law or discretion
presented by the record, and an order. If a decision is announced
orally from the bench, it shall be reduced to writing after the
filing of the transcript. An order by a Judge approving a
settlement proposal is a decision of a Judge.
(b) Procedure for issuance. The Judge shall transmit to the
Executive Director his decision, the record (including the
transcript), and as many copies of his decision as there are
parties plus seven. The Executive Director shall then promptly
issue to each party and each Commissioner a copy of the decision.
(c) Termination of the Judge's jurisdiction; correction
of clerical errors. The jurisdiction of the Judge terminates when
his decision has been issued by the Executive Director ....
'i._/
We continue to look favorably upon the practice of issuing bench
decisions. We hold only that a bench decision is not a final decision
of a judge.
!!__/
On remand, the judge may, if he deems it appropriate, allow the
parties to comment upon the effect of our decision in Old Ben Coal Co.
on the merits of this case.

!±_/

1197

Distribution
Cynthia L. Attwood, Esq.
Off ice of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
Garred 0. Cline, Esq.
Farley Building
Pikeville, KY 41501
Harrison Combs, Esq.
United Mine Workers of Anierica
900 15th Street, N.W.
Washington, D.C. 20005
Administrative Law Judge Richard Steffey
Federal Mine Safety and Health Review Commission
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041

1198

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

June 12, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 80-223-M

v.
J. P. BURROUGHS & SON, INC.,
DECISION
This civil penalty proceeding was initiated on April 17, 1980,
when the Secretary of Labor filed a proposal for a penalty with the
Connnission pursuant to section llO(a) of the Act and Commission Rule
27, 29.CFR §2700.27 (1379). Simultaneously, the Secretary filed a
motion to dismiss, with a request that the Secretary's proposed
penalties be assessed as a final order of the Commission. The basis
for the Secretary's motion was that the operator's notice of contest
was not received by the Secretary within 30 days after the operator
received the Secretary's initial notification of proposed penalty, as
provided by section 105(a) of the Act and Commission Rule 26, 29 CFR
§2700.26 (1979). On April 30, the administrative law judge granted
the Secretary's motion. On that same day, the operator mailed to the
judge its opposition to the Secretary's motion. ]:../ The opposition
was received on May 2, after the judge issued his final disposition.
On June 9, we granted the operator's petition for discretionary review.
Commission Rule lO(b), 29 CFR §2700.lO(b) (1979), provides that
"[a] statement in opposition to the motion may be filed by any party
within 10 days after the date of service." Rule 8(b), 29 CFR §2700.8(b)
(1979), provides that "[w]hen service of a document is by mail, 5 days
shall be added to the time allowed by these rules for the filing of a
response or other document." The Secretary's motion to dismiss was
served on the operator by mail on April 17. Thus, the operator had
15 days, or until May 2, within which to file an opposition to the
motion. ]:_/

1_/ In its opposition, the operator challenged the Secretary's position on the timeliness of its notice of contest.
2/ Rule S(d), 29 CFR §2700.S(d), provides, in pertinent·part, that
11
[f]iling is effective upon receipt, or upon mailing by certified or
registered mail, return receipt requested .••. " In this case, the
operator's opposition was sent by certified mail. Thus, it was filed
on April 30th, the day it was mailed to the judge.

80-6-14

1199

The judg·e--er-red in -ruling on the Secretary's motion and issuing
his final disposition without waiting for and considering the operator's timely opposition to the motion. Accordingly, the judge's order
is vacated and the case is remanded for further proceedings consistent
with this decision.

Marian Pearlman Nease, Commissioner

1200

Distribution
Robert J. Krupka, Esq.
Cook, Nash & Deibel
1201 Second National Bank Bldg.
Saginaw, Michigan_ 48607
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

1201

FEDEi.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, GTH FLOOR
WASHINGTON, D.C.

20006

June 23, 1980
VICTOR McCOY

v.

Docket No. PIKE 77-71

CRESCENT COAL COMPANY
DECISION
The issue in this case is whether the administrative law judge
erred in finding Victor McCoy in default and dismissing his application
for review of discharge. We find that he did err, and we therefore
reverse the order of dismissal and remand the case for further proceedings.
McCoy initiated this case on May 10, 1977, by filing an application
for review of discharge under section 110(b)(2) of the Federal Coal Mine
Health and Safety Act of 1969. 1/ McCoy asserted that he was dismissed
from employment at Crescent Coal Company because he invoked his rights
under the 1969 Coal Act by refusing to ride a belt-line he believed to
be unsafe.
On March 27, 1979, the chief administrative law judge ordered
Crescent Coal to show cause why it had not answered McCoy's application
for review of discharge. Crescent Coal asserted on April 4, 1979, that
it had been mistakenly informed that McCoy had withdrawn his application, but could not recall or furnish any evidence substantiating
that belief or the source thereof. It then filed an answer.
On May 1, 1979, the administrative law judge assigned to the case
found good cause for Crescent Coal's late filing of its answer. He
ordered the parties to meet on or before May 15th to dis~uss a settlement and, if unable to settle, to agree on a time and place for a hearing.

]:_/

30 U.S.C. §801 et~· (1976 & Supp. I 1977).

80-6-17

1202

The parties were instructed to report the results of their discussion to
the judge by June 1, 1979. McCoy's counsel informed the judge in a
letter dated May 23, 1979, that he was withdrawing from the case. The
parties did not meet, and on June 6th the judge issued a notice of
hearing. The notice scheduled the hearing for July 16-17, 1979. The
notice also contained various prehearing requirements. 2:_/ The copy of
this notice addressed to McCoy was returned to the judge marked
"unclaimed" and "addressee unknown." On June 26th the administrative
law judge issued an order to McCoy to show cause why he had not complied
with the prehearing matters in the June 6th notice of hearing. McCoy
received this order and an attached copy of the notice of hearing. On
July 9th the judge received a letter from an attorney requesting an
extension of time so that McCoy could obtain counsel in order to fulfill
the prehearing requirements. ]./ The judge issued an order confirming
the hearing and directing McCoy to comply immediately with the prehearing requirements.
McCoy appeared .E..E£_ se at the hearing. He stated he had been unable
to find a lawyer and asked for more time. to find one.
Crescent Coal's
counsel moved for an order finding McCoy in default for failure to
comply with the judge's June 26th order. The administrative law judge
granted the motion. In his written order of August 8, 1979, the judge
stated McCoy was found in default because he "unjustifiably failed to
comply with •.. the prehearing requirements contained in the Notice of
Hearing dated June 6, 1979." The order also noted the judge's personal
efforts to locate McCoy and inform him of the hearing and prehearing
requirements.
McCoy obtained counsel following the dismissal and, through
counsel, filed a petition for discretionary review. Although the
petition was untimely because we received it more than 30 days after the
issuance of the order of'aismissal f!_/, we do not deem this to bar
review in this case.

2/ Part B required McCoy to furnish an address by June 11, 1979. Part
C ordered each party to file by July 3, 1979, a list of witnesses,
summaries of their testimony, a list of exhibits, all motions, and a
precise statement of the issues.
3/ The letter stated that the attorney was not acting as counsel for
McCoy, but merely was attempting to preserve McCoy's rights.
4/ See 30 U.S.C. §823(d)(2)(A)(i) (Supp. II 1978); 29 C.F.R. §2700.70
(1979); 29 C.F.R. §2700.S(d) (1979).

1203

In deciding whether late petitions can be accepted, we look to the
purposes behind the enactment of the 30-day time limit within which
petitions for discretionary review must be filed.·· Decisions of
administrative law judges become final decisions of the Commission 40
days after issuance, unless directed for review. The 10 day interim
between the last day· for the filing of a petition and the date when the
decision of the judge becomes the final decision of the Commission is
intended to allow the Commission time to evaluate a petition's merits.
The 30-day deadline was established to enable the Connnission to give
adequate consideration to the petitions it receives. Consequently, in
extraordinary circumstances, as in this case, we are prepared to extend
the 30-day deadline and accept a petition that is filed late.
In this case McCoy appeared ~ se at the hearing and did not
succeed in obtaining counsel until after his case had been dismissed.
His counsel requested a copy of the order of dismissal _from the administrative law judge, and obtained it only 10 days befo.re the petition
for discretionary review was due. The petition was mailed on the 30th
day after the administrative law judge's decision. Under these circumstances, we find good cause for the late filing and accept the petition
for discretionary review. J./
The issue in the case is whether the judge erred in defaulting
McCoy and dismissing his application for review. McCoy had failed to
respond to a prehearing order, and had failed to answer a show cause
order. Three days after certain prehearing requirements should have
been fulfilled, McCoy requested an extension of time within which to
obtain a new attorney and respond. !!._/ McCoy repeatedly stated his need
for an attorney at the brief hearing. The 1969 Coal Act is a remedial
statute and should be construed liberally to further its purposes. J_/

'J._/ Cf. Sunbeam Coal Company, 2 FMSHRC 775 (1980) [untimely petition
dismissed where good cause for lateness was neither claimed nor shown].
6/ There is no indication or allegation that McCoy was at all respon~ible for his original attorney's withdrawal shortly before the hearing
in the midst of the prehearing process.
7/ See Phillips v. IBMOA, 500 F.2d 772 (D.C. Cir. 1974), cert. denied,
420 U.S. 938 (1975) . - -

1204

One of its purposes is the prevention of discrimination or retaliation
for the exercise of rights guaranteed by the Act. It is consistent with
that purpose to encourage hearings on claims of discrimination. In view
of this and the particular circumstances of this case, we hold that the
administrative law judge's use of the severe sanction of dismissal was
error. §) Accordingly, the order of dismissal is reversed and the case
is remanded.

§_/

The judge was rightly concerned with expediting what had become an
unduly protracted proceeding. However, we note that McCoy was not the
sole cause for delay. Crescent Coal failed to answer McCoy's application for 22 months. We also note that Crescent Coal did not claim that
it would be prejudiced by a further delay while McCoy sought counsel.

1205

Distribution
Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
of Kentucky, Inc.
P.O. Box 152
Prestonsburg, KY 41653
Marrs Allen May, Esq.
Stratton, Hay & Hays
P.O. Drawer 851
Pikeville, KY 41501
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge Michael Lasher
FMSHRC
Skyline Center #2
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

1206

FEDERAL M-1-NE -SAFETY AND HEALTH R~VIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WJ\SHINGTOi'I, D.C.

20006

June 30, 1980

SECRETARY OF LABOR
HINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA) ex rel

1:.JALTER W. KAR...'1\!STEIN

---·
Docket No. LAKE 80-242-DM

v.
ALLIS-CHALMERS CORPORATION
ORDER

Pursuant to the joint motion filed by the parties on June 24, 1980,
the order of temporary reinstatement entered by the administrative law
judge on April 2, 1980 is dissolved, the Commission's direction for
review issued on April 21, 1980 is vacated, and this proceeding is
dismissed.

A. E. Lawso,, Conrini~sioner

'-1-oowu&h~L.( ~

Marian Pea~ Nease, Commissioner

1207

80-6-22

Administrative Law JudSJe Decisions
(included are several decisions emitted fran the MAY volume)

1209

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
-OFFfCE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

({03) 756-6230.

Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket Nos. BARB 78-689-P
A.C. No. 15-05046-02039S

v.
Docket No. BARB 78-697-P
A.C. No. 15-05120-02013V

PEABODY COAL COMPANY,
Respondent

Alston Mine
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
Thomas R. Gallagher, Esq., Attorney for Respondent.

Before:

Judge Fauver

These cases were brought by the Secretary of Labor under section llO(a)
of the Federal Mine Safety and Health Act of 1977, ,30 u.s.c. § 801 et~··
for assessment of civil penalties for alleged violations of mandatory safety
standards. The cases were heard at Louisville, Kentucky, in August 1979.
Both sides were represented by counsel.
Having considered the arguments of counsel 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, Peabody Coal Company, operated
two coal mines known as the Alston No. 3 Mine, and the Ken No. 4 North Mine,
in Ohio County, Kentucky, which produced coal for sales in or affecting
interstate commerce. Both mines used conventional mining equipment.
Alston No. 3 produced about 6,000 tons of coal per day, and employed about
450 people. Ken No. 4 North produced about 500 tons of coal per day and
employed about 50 people.
2. On December 9, 1976, a 'federal inspector, Darryl Winkleman, conducted a regular inspection of Respondent's Alston No. 3 Mine, accompanied
by Don Jackson, the second shift foreman. When they entered the motor barn

1211

they were informed that the scoop operator, Charles Matheny, had been
injured by faJ:-lin-g--ro6f l.n ·the No. 6 room of the last old crosscut on the
righthand side of the No. 2 unit.
3. Before the accident, the "pinner" (roof-bolter), Karl Kaylor, had
been checking the roof supports. He found some loose roof and told the
foreman, Ricky Roberts, that it should be pulled down. The pinner apparently believed that pulling down bad roof was preferable to propping it up
because it would be difficult to predict whether or not the roof would fall
when the props were removed. Two temporary supports and some pins were
installed before the pinner pulled down a section of roof with a 6-foot bar.
Roberts then instructed the scoop operator to go in and remove the rock from
the ground so pinning could resume. Two timbers in the entry and the
temporary supports were·removed before the scoop went in.
4. Normally, before the pinner entered an area to install pins, the
scoop would be sent in to remove any loose rock from the mine floor. After
the area was cleaned, the pinner would go in and bolt the roof and then back
out to allow more cleaning before the sequence continued. The scoop was
about 25 feet from front to back and about 12 feet from the front of the
shovel to the front of operator's deck. As a matter of practice under the
roof control plan, it was recognized as safe to allow the front portion of
the scoop to go under unsupported roof so long as the operator remained under
supported roof. No violation is charged as to this practice.
5. The scoop had removed one load when the belt feeder broke down in
another area of the mine. Before leaving to attend to this problem, the
foreman instructed the crew to load the rock in cycle, to pin the roof back
in, and not to go out under unsupported roof. Before Roberts left, the pins
appeared to support the roof well and the scoop operator had not proceeded
past supported roof.
6. As the scoop was backing out with a full bucket, a piece of rock,
about 200 pounds and 3 to 4 feet in size, fell on the scoop about 4 feet in
front of the operator's deck. A piece of this rock, between 30 and 50 pounds,
splintered off and struck the operator's legs.
7. When the inspector arrived, the injured scoop operator had already
been removed, but the scoop had not been moved. The i~spector observed what
is depicted in Government Exhibit No. 5. He observed pieces of rock on the
mine floor on both sides of the scoop, a large piece on the forward section
of the scoop and a smaller piece in the operator's compartment. He observed
12 to 18 inches of roof that had fallen out between two of the pins.
8. Some of the pins in the roof appeared to be supporting roof; however, other pins were not. In the area of the scoop shovel, there were four
pins that were not supporting any roof and one of them was hanging down with
a piece of rock suspended from it. To the rear of the scoop and behind the
operator's deck were two good pins. Closer to the operator's deck, three

1212

pins £ormed a triangle. One leg of the triangle was 7 feet, one leg was
6 feet, 6 inches, and the third was 3 feet. All three pins forming the
triangle appe;ared--t6' be supporting roof; however, two pins, in the
vicinity of the longer legs of the triangle, did not appear to support any
roof. The inspector determined the roof had fallen in the area of one of
the loose pins.
9. After a brief investigation, which included measuring distances
between some of the pins, the inspector concluded that the scoop operator had proceeded past the last row of properly supported roof.
He issued a notice of violation, which read in part:
The approved roof control plan was not being followed
on No. 2 unit (I.D. 014) supervised by Ricky Roberts in
1 South Submain entries in that a scoop operator, Charles
Matheny, was injured by falling rock while operating a scoop
under unsupported roof where roof material had been taken
down in the right crosscut ~n No. 6 working plar.e.
10. The inspector determined that Respondent had violated paragraph
24(C) of its approved roof-control plan. Paragraph 24 provides:
The roof where falls had occurred shall be considered
unsupported, and no person shall enter such areas, either to
travel over the fall or clean it up unless the roof is supported. Where falls or blasted roof materials are cleaned
up, management shall devise and have in writing at the scene
of the fall a plan incorporating the following procedures:
(A) such work shall be under the direct, and unless the workmen are specially trained to do such work, constant supervision of a properly trained company official. (B) Adequate
support shall be set under the brow of the fall before any
work is done in the area. A minimum of four posts or jacks
on a maximum of 5' centers or at least two crossbars shall
be used to support such brow. (C) Roof supports shall be
advanced as cleanup work progresses, and when it is necessary to load material before support can be set, such loading shall be done from areas of permanent support with the
operator and other persons in the area under supporte~ roof
at all times.
11. The inspector concluded that the poor physical condition of the
roof was obvious before the accident and that loose roof bolts (pins) were
a contributing cause of the roof fall. He testified that his investigation
did not indicate that the roof fall had lossened the bolts.
12. The inspector also said that he would have issued a citation even
if the bolts were supporting roof because they were not spaced on 5-foot
centers as required by the roof plan.

1213

13. The roof on· .the left side of the run consisted of draw slate running from 12 to 18 inches. It was fractured, without strata, and tended to
break off in chunks. Respondent's roof control plan called for B-type bolts
on 5-foot centers, but because the roof in this area appeared to be getting
worse (and was worse than in other parts of the mine), Respondent went to
stronger roof supports, metal straps with 6-foot pins on 4-foot centers.
14. In the area in question, the roof appeared smooth until Karl Kaylor
noticed the loose roof that he subsequently pulled down.
15. The pinning sequence in this area was unusual in that the pins were
not aligned in a straight row. Holes could be drilled only in the thickest
part of the roof and the roof thickness was not uniform. When the roof
bolter, Karl Kaylor, arrived on the shift, he noticed some spot pins that
had probably been set during an earlier shift.
16. Roof bolts would normally be torqued every night and would be
checked again at the start of a shift. Karl Kaylor checked ev~ry fifth bolt
with a sounding device when he came on the shift that day.
17. A roof bolter would be required, at least every 6 months, to read
the roof control plan thoroughly to be sure he understood what it required.
There were also training sessions at the mine, and bolters would spend several hours training and retraining for a particular job because the roof
varied in each section of the mine. The supervisor would also recieve
16 hours of specialized training in roof bolting each year.
18. On October 19, 1977, a federal inspector, Thomas Lyle, inspected
Respondent's Ken No. 4 North Mine, accompanied by the mine manager, Alton
Fulton. About 11:30 a.m., they entered the mine and proceeded to the ratio
feeder.
19. The ratio feeder had been installed about 1 week earlier. Coal
dumped on the front end of the ratio feeder would move along the conveyor and
pass through the pick breaker (which breaks large lumps of coal into smaller
pieces) before being dumped off the back end onto the tailpiece of the conveyor belt. When the inspector (and Fulton) arrived at the ratio feeder, the
machinery was operating and a shuttle car had just pulled__ away after dumping
a load of coal. The inspector approached the left side of the equipment and
observed that a guard over the clutch coupling was improperly secured. One
~orner of the guard was secured with a bolt and the other side was secured
with a thin piece of wire, about 18-1/2 inches long (with a tensile strength
of 160 pounds), in place of a bolt. The side secured by the wire was hanging
down, leaving the coupling and shaft exposed. The coupling was about 3 feet
off the ground and spinning very_ fast.
20. The inspector found that the guard over the clutch coupling,
secured only with a thin piece of wire, could not withstand the pressure of
a fall agains.t it and that this condition exposed persons traveling in the
area to a high risk of danger. The area was frequently traveled by shuttle
car operators, the belt examiner, and cleaning personnel.

1214

21. On the-right side of the ratio feeder, a guard for the clutch
coupling was missing altogether. It was lying on the mine floor just below
the coupling.
22. The inspector also observed that a 4-foot section of a guard to
protect persons from contacting the moving rollers on the tailpiece was
missing. There was no self-activated shut-off. The tailpiece was about
10 feet long, 5 feet wide, and 2 feet high.
23. Respondent 1 s foreman, Charles Ford, had inspected the area earlier
in the morning.
24.

The inspector issued an order of withdrawal, which read in part:

Guards adequately secured and fastened were not provided
for the clutch coupling on the left side of the ratio feeder
in that it was only tied on with small wire, and no guard was
provided for the right side of the ratio feeder clutch coupling while in motion. Also a guard was not provided for
approximately four feet of the right side of the tailpiece
and rollers while in motion to prevent persons from coming in
contact with the moving belt and rollers. On No. 1 unit
(I.D. 004) Responsibility of Charles Ford foreman. The operator or his agent knew or should of known this violation
existed.
25. The order was abated promptly by providing a bolt on the guard
on the left side of the ratio feeder and by installing guards on the tailpiece and over the clutch coupling on the right side.
DISCUSSION
Docket No. BARB 78-689-P
On December 6, 1976, Inspector Winkleman charged Respondent with a violation of 30 C.F.R. § 75.200, which requires a mine operator to adopt an
approved roof control plan. In addition, section 75.200 pr~vides: "No
person shall proceed beyond the last permanent support unless 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." The inspector determined that Respondent's
approved roof control plan was not being followed in that a scoop operator
was operating under unsupported roof.
The Secretary argues that the inspector was the only hearing witness who
had conducted an investigation of the accident and made a detailed sketch
(Exhibit G-5) of the area including the location of the scoop and a schematic
diagram of the roof bolt pattern. The sketch indicates the distances between
some of the bolts and whether or not bolts were supporting roof.

1215

The inspector
testified that in his opinion the roof fall that injured
the scoop operator did not loosen the roof bolts. If the roof fall had dislodged the bolts, he said, a much larger section of rock would have fallen
out and would have probably killed the operator. He therefore concluded the
operator was under roof that was not properly supported.
The Secretary argues that Respondent's first witness, the foreman, was
not an eyewitness to the accident and the report he subsequently filed with
the company was based on statements of others that supported his conclusion
that the operator had not been operating beneath unsupported roof.
He also contends that none of Respondent's witnesses either conducted
an investigation or was in a position to observe whether or not the operator
proceeded past the last row of supports.
The Secretary recommends a penalty of $2,000.
Respondent argues that the inspector was not an eyewitness to the accident and was therefore unable to determine if the roof bolts over the operator's compartment were loose before the fall or became.loose as a result of
the fall. Re5pondent contends that the inspector's testiraony, including
Government Exhibit No. 5 (the diagram) and his measurements, was conclusory
as he arrived at the cited area after the accident occurred. Respondent
contends that the inspector's conclusion that the good roof bolts were spaced
too far apart, based on three measurements he took, incorrectly assumed that
the other roof bolts were loose before the accident.
Respondent argues that the inspector's diagram contains measurements of
only three bolts although there were about 14 bolts pictured. The diagram
contains no measurements for the scoop or the piece of rock that fell and
the inspector could provide their measurements only by estimates from memory.
The essential measurements, Respondent contends, were not made or recorded
when the event was fresh in his mind.
The foreman, Ricky Roberts, testified that the inspector's diagram
accurately reflected the area from where the rock had fallen but he· disagreed
with it insofar as it pictured loose bolts behind the scoop. He testified
that the bolts above the scoop were checked by the opera~or at the start of
the shift. He also testified that when he left to go to the belt feeder he
gave instructions to the operator to load rock in cycle, pin the roof back
in, and not to go beneath unsupported roof.
The pinner, Karl Kaylor, testified that when the scoop was sent in to
remove rock that he had pulled down, he was standing toward the face, 20 to
40 feet behind the scoop. He testified that as the scoop was backing out
a pi~ce of rock fell and landed on the scoop about 4 feet in front of the
operator.
Kaylor testified t~at the inspector's diagram appeared to be accurate
in reflecting the cited area but he said the two bolts on either side of the

1216

cavity from which the rock fell were tight before the accident. He testified that when he' ca:me' on- the shift he probably checked every fifth bolt but
did not recall precisely which ones. Finally, he testified that the bolts
did not become loose as a result of his prying down the bad roof. His testimony would indicate that any loose bolts over the scoop became loose as a
result of the roof fall.
The shooter, Ruben Williams, testified that he was standing a few feet
from the scoop on the same side as the operator and slightly to his rear when
the roof fell. He testified that the operator was beneath supported roof
when the roof fell but he was unable to say whether or not the inspector's
diagram accurately pictured which bolts were loose and which bolts supported
roof. He was able to recall very little else.
The scoop operator, Charles Metheny, testified that he did not go
beneath unsupported roof. He said that, before the roof fall, no pins were
missing and none were loose apart from a pin in front of the bucket.
Respondent also argues that the occurrence of a roof fall is not prima
facie evidence of the operator's failure to follow the roof control plan.
I find that the Secretary failed to prove by a preponderance of the
evidence that the scoop operator went beneath unsupported roof in violation
of Respondent's roof control plan. The inspector did not observe the roof
fall and the only basis for his conclusion that the roof fall did not loosen
the roof bolts was his unsubstantiated opinion that a much larger rock fall
would have been required to loosen the bolts. Four witnesses (including three
who were present at the time of the fall) testified that the roof bolts above
the operator were tight before the roof fall. The evidence does not preponderate in showing any violation of the roof control plan.
Docket No. BARB 78-397-P
On October 19, 1977, Inspector Lyle charged Respondent with a violation
of 30 C.F.R. § 75.1722, which provides:
Gears, sprockets, chains, drives, head and tail, take
up pulleys, drive wheels, coupling shafts, sawblades, fqn
inlets, and considerable exposed moving machine parts which
may be contacted by persons, and which may cause injury
to persons, shall be guarded. Guards, conveyor drives,
conveyor heads, and conveyor tail pulleys shall extend a distance sufficient to prevent persons from reaching behind the
guard and becoming caught between the belt and the pulley.
Except when testing the machinery, guards shall be securely
placed while the machinery is being operated.
The inspector observed that one guard was inadequately secured on the left
side and two guards were missing from the right side of the ratio feeder.

1217

The Secretary argues, with respect to the insecurely fastened guard
over the clutc1i· cou-pling;--that one side of the guard was bolted in place but
the other side was tied on with a thin piece of wire, allowing the inspector
to see into the machine and observe its moving parts. The Secretary contends
that even if the wire were of sufficient tensile strength, the guard was
still not secured adequately to withstand the pressure of a fall against it.
The Secretary also argues that the other two guards on the right side
of the ratio feeder were not in place. With regard to the guard over the
clutch coupling on-that side, the Respondent admits that it was lying on
the ground.
The Secretary proposes a penalty of $4,000.
The main thrust of Respondent's argument is that the Secretary's proposed penalty is excessive. Respondent contends that one of the guards over
the clutch coupling was lying on the ground and one was partially secured
with a wire. Respondent argues that the latter guard was adequately secured
with a wire of substantial strength and that it would be difficult for anyone
to fall through the guard into the moving parts.
Respondent also argues that the tailpiece guard on the right side of the
ratio feeder was not missing, as alleged by the inspector. Fulton testified
that a J-bolt had broken off on one side of the tailpiece and was secured
instead with a wire. He stated:
The back one was bolted on, and the back part of the
front one was bolted on with a J-Bolt which is welded onto
the tailpiece with a nut on it. And, the front of the
guard was dropped down--it was wired--wire running through
tied to a rope--belt rope--to the tailpiece and it was
dropped down to about two and ·a half to three inches from
the top.
Fulton also disagreed with the inspector's testimony that a man could have
become caught in the tail rollers. Respondent contends that a person would
have had to force his hand through a 2-1/2-inch opening, which was highly
unlikely, to become caught in the moving rollers.
I find that the Secretary proved, by a preponderance of the evidence,
three violations of 30 c.F.R. § 75.1722 as alleged in Order No. 7-59.
Although the inspector did not actually apply pressure to the guard he
determined to be inadequately secured, he was able to see into the machinery
and did observe the guard vibrating.
The inspector provided a contemporaneous, detailed diagram of the ratio
feeder showing which guards were_ not in place. I credit the inspector's
testimony with more accuracy as he took notes and made a diagram at the time.
I also credit his testimony as to the gravity of the violations.
Respondent knew or should have known of the cited conditions before
the inspection, and is therefore found to be negligent.

1218

-- Conclusions of Law
1. The undersigned Judge has jurisdiction over the parties and subject
matter of the above proceedings.
2. Petitioner did not meet its burden of proving a violation as alleged
in Notice No. 6-2927.
3. Respondent violated 30 C.F.R. § 75.1722 by failing to guard exposed
moving machine parts as alleged in Order No. 7-59. Based upon the statutory
criteria for assessing a civil penalty for a violation of a mandatory standard, Respondent is assessed a penalty of $2,500.00 for the above violation.
/

ORDER
HHEREFORE IT IS ORDERED that (1) the charge based on Notice No. 6-2927
is DISMISSED, and (2) Peabody Coal Company shall pay the Secretary of Labor
the above-assessed civil penalty, in the amount of $2,500.00, within 30 days
from the date of this decision.

tJ~f~ ~ t.I'\..
WILLIAM FAUVER, JUDGE

Distribution:
Leo J. McGinn Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Thomas R. Gallagher, Esq., Counsel for Peabody Coal Company,
301 North Memorial Drive, P.O. Box 235, St. Louis, MO 63166
(Certified Mail)

1219

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, GTH FLOOR
WASHINGTON, D.C. 20006

May 13, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. DENV 78-512-P
A/O No. 29-00095-02021V

Vo

York Canyon No. 1 Mine
KAISER STEEL CORPORATION,
Respondent
DECISION
Appearances:

Manuel Lopez, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner, Secretary of Labor;
David Reeves, Esq., Oakland, California, for
Respondent, Kaiser Steel Corporation.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

In this case, Petitioner seeks a penalty for a violation of
the mandatory standard contained in 30 C.F.R. § 75.301 alleged in
an order of withdrawal issued February 2, 1977. The case thus arose
under the Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c.
§ 801 (1970).
The order charged that the standard was violated in that the
quantity of air reaching the last open crosscut in.section 6L of
the subject mine was far below the minimum 9,000 cubic feet per
minute required. In addition, there was methane in the working
face in excess of 3.5 percent. Respondent does not challenge
either of these findings but contends that the proposed penalty
of $4,,000 is excessive, because the drop in airflow was due to
an improperly anchored brattice line. This condition, asserts
Respondent, could not have existed for more than a few hours. The
shift involved was a maintenance shift and it is not disputed that
the foreman of the next working shift corrected the problem within
an hour after the inspector issued an order.

1220·

The Petitioner maintains that the brattice in question was too
short and therefore improperly installed. It believes the lack of
airflow had been present for some time and should have been noticed
and corrected by company officials on the last working shift. This,
combined with the fact that concentrations of methane nearing the
explosive level we-re present within 15 feet of three mechanics working on an energize-d continuous miner, argues Petitioner, amounted to
gross negligence on the company's part.
A hearing was held at Raton, New Mexico, on November 1, 1979,
before Administrative Law Judge Michels. Witnesses were Lawrence
Rivera, a federal mine inspector, George Krulyac, foreman for Respondent, and Paul McConnell, a mine safety inspector employed by Respondent. Because of the retirement of Judge Michels, the case was, with
the consent of counsel, assigned to me for decision on the transcript
of the hearing before Judge Michels. The parties have waived their
rights to file written proposed findings of fact and conclusions of
law.
ISSUES.
1. Did Respondent on February 2, 1977, fail to ventilate the
last open crosscut in section 6L with an airflow of at least 9,000
cubic feet per minute?
2.

If so, was this failure due to Respondent's negligence?

3. Can accumulations of methane at the working face be taken
into account in fixing an appropriate penalty for violation of
30 C.F.R. § 75.301?
4.

If a violation occurred, what is the appropriate penalty?
FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent was
the operator of a coal mine in Raton, New Mexico, known as the
York Canyon No. 1 Mine.

2. The York Canyon No. 1 Mine annually produces between
576,000 and 738,000 tons of coal and 350-450 employees are engaged
in all of Respondent's York Canyon mines.
3. The proposed penalty will have no effect on the operator's
ability to remain in business.
4. On February 2, 1977, in section 6L of the subject mine an
air reading showed that there was less than 9,000 cubic feet per
minute of air in the last open crosscut.

1221

5. The failure in airflow was due to a line brattice which
was not functioning properly.
6. Whether the line brattice was improperly installed or
damaged, or both,_ the condition was obvious and could have been
noticed during the last working shift.
7. At 6 a.m., February 2, 1977, the air at the working face
area in section 6L contained 3.55 percent methane.
8. Three miners were at or near the working face performing
maintenance work on an energized continuous miner at the time the
methane was detected.
9. Paul McConnell, a mine safety inspector working for Respondent, was with federal inspector Lawrence Rivera when the latter
discovered a total absence of airflow at section 6L-at about 6 a.m.
He did not undertake to correct the problem at that time but left
for other areas of the raine, before Mr. Rivera began to check for
methane.

10. After ordering all miners out of the affected area and
ordering the power deenergized, Mr. Rivera issued an order of withdrawal to George Krulyac, mining foreman, at 7:15 a.m. The violation was abated by 8:45 a.m.
DISCUSSION
It is not disputed in this case that the 9,000 cubic feet per
minute airflow required by 30 C.F.R. § 75.301 was not being maintained in section 6L. In fact, both Mr. Rivera and Mr. McConnell
were unable to obtain any reading by an anemometer or by use of a
smoketube. The parties agree that a faulty brattice "shortcircuited" the airflow and was thus the cause of the v_iolation.
Mr. Rivera stated that the brattice was simply too short and that
the deficiency was corrected when Mr. Krulyac hung a new curtain
of sufficient length parallel to it. Mr. Krulyac stated that the
brattice was merely loose in one corner, a condition he remedied
by nailing it down. Yet Mr. HcConnell, who discovered the lack of
airflow earlier with Mr. Rivera, believes that if the brattice had
been long enough he would have nailed it down himself. In this
light, I accept Mr. Rivera's version of the brattice's condition.
Further, the dispute is made somewhat less relevant since two other
brattices in the section were ripped as well, which also could have
contributed significantly to the loss of airflow.
The amount of time during which the violation existed is crucial
to the issue of how much negligence, if any, should be ascribed to
the Respondent. Respondent's pregraveyard shift report, made between
3 and 11 p.m. the previous night indicates a sufficient amount of air

1222

flow in section 6L. Th.ere is no indication that Mr. Rivera examined
. this report when he arrived at the mine that night, and Petitioner
has not challenged its accuracy. Nevertheless, Mr. Rivera's expert
opinion is that the rips in the brattices were caused by the movement of machinery which could have happened only during the production shift ending the previous night. I find that the loss of airflow dated back at least to the start of the February 1-2 graveyard
shift.
Respondent urges that potentially harmful accumulations of
methane cannot be considered in aggravation of the penalty imposed
for violation of the ventilation standards in 30 C.F.R. § 75.301.
Admittedly, it was held by the Interior Board of Mine Operations
Appeals that a citation charging "methane in excess of 5 percent"
was properly dismissed when brought under 30 C.F.R. § 75.301.
Mid-Continent Coal, 8 IBMA 204 (1977). But the Board; declaring
that 30 C.F.R. § 75.308 provides for specific actions in response
to methane accumulation, emphasized that the citation was issued
solely for methane accumulation under a regulation designed to
ensure proper ventilation. In fact, improper ventilation was not
even charged in that case. Improper ventilation is the central
concern in the case at hand. The regulation here involved seeks
to ensure adequate ventilation so that miners will not be exposed
to "harmful quantities" of "noxious or poisonous gases." Methane
is such a gas, and an accumulation of 3.55 percent where 5 percent
'may produce an explosion is certainly harmful.
CONCLUSIONS OF LAW
1. On February 2, 1977, Respondent violated 30 C.F.R. § 75.301
by failing to properly ventilate section 6L of its York Canyon No.I
Mine, thereby allowing a dangerous concentration of methane to
accumulate near the working face. The violation was serious.
2. Respondent's disregard of a known risk p·osed by the violation of 30 C.F.R. § 75.301 constituted gross negligence.
3.

Respondent is a large operator.

4. Respondent abated the condition promptly and in good faith
after being cited.
5. Considering the six statutory criteria, I conclude that a
penalty of $4,000 should be assessed for the violation.

1223

ORDER
Respondent is directed to pay the sum of $4,000 for the violation found herein within 30 days of the issuance of this decision.

J
Distribution:

A?JMu.--5

_,,#3Yilckt'?- e{

James A. Broderick
Chief Administrative Law Judge

By certified mail.

David B. Reeves, Esq., Attorney at Law, Kaiser Steel Corporation,
300 Lakeside Drive, KB 2608, Oakland, CA 94666
Manuel Lopez, Esq., Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA -22203
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

1224

FEDERAL MlNE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. PENN 79-97
A.C. No. 36-03425-03017

v.
Maple Creek No. 2 Mine
UNITED STATES STEEL CORPORATION,
Respondent
DECISION
Appearances:

James Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel Corporation,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter, MSHA) under section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u. s.c. § 820(a), to assess a
civil penalty against United States Steel Corporation (here~nafter, U.S.
Steel) for a violation of a mandatory safety standard.
a violation of 30 c.F.R.
control plan.
1980.

§

The petition alleges

75.200, failure to comply with the approved roof-

A hearing was held in Pittsburgh, Pennsylvania, on January 22,

Inspector Basil Zaycosky testified on behalf of MSHA.

Ronald Franczyk,

John Lowther, and Robert K. Bryan testified on behalf of U.S. Steel.

The

parties filed briefs with proposed findings of fact and conclusions of law.

1225

At ~he commencement of the hearing, MSHA moved to withdraw Citation No.
620282 which alleged_a-vfolaton of 30 C.F.R. § 48.9(a), failure to make
training certificates of miners available for inspection.

At the hearing,

MSHA stated that U.S. Steel did not violate the above regulation.
Steel did not oppose the withdrawal of this petition.

U.S.

Hence, Citation

No. 680282 was vacated and the portion of the petition for assessment of
civil penalty relating to Citation No. 680282 was dismissed.

Although the

hearing commenced on the remaining proposed assessment of Citation No. 391262,
it became apparent during the hearing that the civil penalty was proposed
under Order No. 391264 rather than Citation No. 391262.

Without objection,

MSHA amended its petition to assess a civil penalty to include Citation
No. 391262 and Order No. 391264.

At all times, U.S. Steel asserted its

right to contest the validity of the order of withdrawal in this civil
penalty proceeding even though it did not file any contest of that order
with the Federal Mine Safety and Health Review Commission (hereinafter
Commission).
This matter involves the alleged violation of 30 C.F.R. § 75.200, failure to comply with an approved roof-control plan, on March 28 and March 30,
1979, at the Maple Creek No. 2 Mine.

The specific violation alleged is that

the roof control plan for the area in question permitted mining of entries,
crosscuts, rooms, and splits to a 16-foot width.

MSHA alleged the mining

of entry No. 15 to a width of between 16 feet 8 inches and 17 feet 6 inches.
U.S. Steel contended as follows:

(1) it is impossible to mine exactly 16

feet; (2) although there were areas measuring more than 16 feet, they were
"offsets" at intermittent locations; and (3) it was unnecessary to erect
posts to support the roof in areas exceeding 16 feet in width.

1226

ISSUES
Whether U.S. Steel violated the Act or regulations as charged by MSHA
and, if so, the amount of the civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 75.200 provides as follows:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system of
each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or 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.
Section llO(i) of the Act 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.

1227

STIPULATIONS
The parties stipulated the following:
1. U.S. Steel owns and operates the Maple Creek No. 2 Mine and both
U.S. Steel and the mine are subject to the Mine Safety and Health Act of 1977.
2. Inspector Basil Zaycosky is an authorized representative of the
Secretary of Labor.
3. Copies of Citation No. 391262 are authentic and may be admitted
into evidence as authentic documents.
4.

U.S. Steel is a large operator.

5. The assessment of a civil penalty in this proceeding will not
adversely affect the operator's ability to remain in business.
SUMMARY OF THE EVIDENCE
On March 28, 1979, Inspector Basil Zaycosky performed a "spot" inspec. tion of U.S. Steel's Maple Creek No. 2 Mine.

He was accompanied by Cletus

Mcconville, chairman of the union safety committee.

The approved roof-control

plan for this area of the mine provided for 16-foot widths of entries and
crosscuts.

It also provided that "[t]olerances of 12 inches on width openings

* * * may be allowed provided tolerances are at intermittent locations."

In

entry No. 15 of five flat 15 room section, Inspector Zaycosky and Cletus
Mcconville measured nine places between crosscuts or splits 19 and 22 which
were between 16 feet 8 inches and 17 feet 6 inches.
were in excesss of 17 feet.
30 feet apart.

Three of the measurements

The measurements were taken approximately 20 to

There was no significant sloughing of the ribs in question.

Inspector Zaycosky testified that the continuous miner cut the entries too
wide.

Thereupon, he issued Citation No. 391262 for a violaton of the approved

roof-control plan.

1228

Concerning the gravity of the cited violation, Inspector Zaycosky testified that the excessive width of the entry would cause additional stress
on the roof and possibly cause the roof to collapse.

He stated that the

following miners would be exposed to this hazard in the haulageway: motormen,
mechanics, and passengers on the portabus.

A collapse of the roof could

result in injuries ranging from minimal to fatal.

However, he conceded that

he was unaware of the condition of the roof in the area in question.
not inspect or test the roof.
section.

He did

He was unaware of any roof falls in this

However, he had observed roof falls in other parts of this mine at

a distance of 2,000 to 3,000 feet away from the section in question.
Concerning the issue of negligence of the operator, Inspector Zaycosky
testified that the excessive width of the entry was readily observable.
/

Since the face of this entry was approximately 500 feet away, he estimated
that this condition had been present for one or two weeks.
When he returned to the mine on March 30, 1979, to inspect the abatement of this violation, he found that nine posts had been set between 19
and 20 splits but no other posts had been set.

He again made measurements

and found three points between 20 and 22 splits in excess of 17 feet.

His

initial citation on March 28, 1979, required that the violation be abated
by 4 p.m. of that date.
violation.

In his opinion, little had been done to abate the

Thereupon, he issued an order of withdrawal pursuant to section

104(b) of the Act.

Thereafter, the violation was .abated in 1-1/2 hours.

He did not believe that a further extension of the time for abatement was
warranted because of the lack of good faith compliance by U.S. Steel. ·He

1229

reiterated his belief that the posts were necessary to support the excessive
width of the roof.
At all relevant times, Ronald Francyzk was the assistant mine foreman
of sections at U.S. Steel's Maple Creek No. 2 Mine.
experience in coal mine employment.

He was familiar with the roof and the

roof-control plan of the mine in question.
lent."

He has 7 years of

He described the roof as "excel-

He testified that there had never been any roof falls in 15 room.

The roof-control plan for the area in question permitted 16-foot entries
with a 12-inch tolerance at intermittent locations.

Subsequently, in

September 1979, the roof-control plan was amended to permit 20-foot entries
in 2 flat, 24 room.

That room was approximately 2,000 to 3,000 feet away

from the roof in controversy here.

The roof in each room was the same.

The amended roof-control plan was for a longwall staging entry where the
roof was expected to be supported for about 2 years.

The room in que£tion

in this proceeding was to be mined conventionally with a continuous miner.
On March 28, 1979, Assistant Foreman Francyzk was called to the area
in question.

He observed chalk marks on the ribs at excessive widths.

measured some of the widths with Inspector Zaycosky.

He

He recalls some widths

"around 17 feet" but does not recall any in excess of 17 feet.

He believed

that the excessive widths were "offsets" caused by the continuous miner avoiding the line brattice on the right side.

These would occur when the contin-

uous miner went in at an angle rather than at a straight cut.

He expressed

his belief that it is impossible to cut entries at exactly 16 feet.

Although

he did not believe that there was a violation of the roof-control plan
because the "offsets" were at intermittent locations, he did not question

1230

the inspector's measurements.
shift.

He ordered nine posts to be set on the next

Inspector Zaycosky never told him to set posts on 4-foot centers.

While he conceded that the posts gave some support to the roof, he did not
believe that they were necessary.
On March 30, 1979, Inspector Zaycosky returned to the mine.

He advised

Mr. Franczyk that U.S. Steel had not properly reduced the excessive widths.
At the time the order of withdrawal was issued, approximately 20 posts had
been set.

Thereafter, another 12 or 13 posts were set.

On that date, he

also assisted Robert K. Bryan, mine operating engineer, in measuring the
widths at 2-foot intervals between splits 21 and 22.

Of the 33 measurements

taken in that entry, only two were 16 feet or less.

Seven of those measure-

ments were in excess of 17 feet.
in controversy.

Mr. Bryan also measured the other areas

In 15 entry between splits 20 and 21, there were no measure-

ments of 16 feet or less.
John Lowther was the assistant mine foreman on the third shift at all
relevant times.

He testified that on March 29, 1979, he received a note from

Ronald Franczyk to measure and post entry 15 between 19 and 22 splits.
crew set 12 posts between 19 and 20 splits on that dat_<;!.

His

He measured the

widths and found a couple in excess of 17 feet.

Twelve more posts were set.

He described the roof as "exceptionally good."

There was not much sloughing

at the ribs.

He did not see any violation of the roof-control plan.

He did

not think that posts were really needed.
Robert K. Bryan, mine operating engineer, took measurements of the area
in controversy on March 30, 1979.

Thereafter, he prepared a map of the area

1231

(Exh. 0-6).

His.ineai:iurements were made in feet and tenths of a foot.

A

measurement listed as 17.3 means 17.3 feet not 17 feet 3 inches.
Documentary Exhibits
The pertinent facts concerning the citation, order of withdrawal,
approved roof-control plan, amendment to the approved roof-control plan, and
maps of the affected area have been previously summarized.

u.s. Steel also

put in evidence one page of the MSHA Underground Manual which, under the
heading "Policy," provides as follows:
Excessive width is defined as twelve inches or more
than the width approved in the roof control plan. If it is
evident that excessive widths are prevalent and are caused
by poor mining practices, a citation shall be issued. The
citation should describe the distance that the excessive
widths existed.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, briefs, and proposed findings of fact and conclusions of law have been considered.

The evidence shows

that on March 28, 1979, Inspector Zaycosky made numerous measurements of the
width of 15 entry in Maple Creek No. 2 Mine.

The approved roof control plan

for that entry provided for a 16 foot width with "tolerances· of 12 inches * * *
at intermittent locations."

The inspector made nine measurements between 16 feet

8 inches and 17 feet 6 inches in the entry between splits 19 and 22.
Thereupon, he issued Citation No. 391262 for violation of the approved roof
control plan pursuant to 30 C.F.R. § 75.200.

The citation provided that the

condition be abated by 4:00 p.m. on that day.

On March 30, 1979, the inspector

returned to the area.

He testified that only nine posts had been set between

1232

19 and 20 splrt:s aricf no posts had been set between .20 and 22 splits.

On the

other hand, Ronald Franczyk, assistant mine foreman, testified that approximately 20 posts had been set by March 30.

John Lowther, another assistant

mine foreman, testified that 24 posts had been set by Harch 30.

In any event,

Inspector Zaycosky issued an order of withdrawal on March 30, 1979, under
section 104(b) for failure to abate the violation.

Thereafter, another 12 or

13 posts were set and the order was terminated.
While there was some confusion at the hearing as to whether the civil
penalty was assessed on the initial citation or the subsequent order, this
question was resolved without objection when MSHA amended its petition to
include the order as well as the citation.

The first issue to be resolved

is whether U.S. Steel violated the Act or regulation.

It is clear that a

violation of an approved roof control plan is a violation of 30 C.F.R.

§ 75.200.

See Ziegler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976).

I find that the testimony of Inspector Zaycosky concerning measurements of
15 entry in excess of 16 feet was credible and corroborated by U.S. Steel's
measurements set forth in its mine map (Ex. 0-6).

In the area in controversy,

the U.S. Steel mine map shows several areas in 15 Entry in excess of 17 feet
in width.

Moreover, of the 33 measurements by U.S. Steel· in 15 entry between

splits 21 and 22 only 1 was less than 16 feet and one was 16 feet.

Hence,

even under the twelve inch tolerance, allowed by the roof control plan, the
tolerances were not "at intermittent locations."

Any reliance on the MSHA

Underground Manual to excuse the excessive widths· is rejected.

The manual

does not have the force and effect of law and is not controlling.

Therefore,

I find that U•. s. Steel was in violation of its approved roof control plan

1233

and 30 C. F. R. § 7.5_. 2QQ_ as---alleged by MSHA.

This is so because MSHA has

established that 15 entry measured in excess of 17 feet in several places
and the remaining measurements in excess of 16 feet were not at intermittent
locations.
U.S. Steel also contends that there was "no basis for issuing an order
on March 30, 1979."

The order of withdrawal under section 104(b) of the Act

was issued because the inspector found that the condition had not been
totally abated and the period of time for the abatement should not be extended.

There is a dispute between MSHA and U.S. Steel concerning the number

of posts which had been set prior to the issuance of the order.

Inspector

Zaycosky contended that only nine had been set while U.S. Steel alleged that
approximately 20 had been set.

For the purpose of determining the validity

of the order, this conflict will be resolved in favor of U.S. Steel.

Never-

theless, after the order was issued additional posts were set in 1-1/2 hours.
U.S. Steel failed to establish any valid reason why the condition could not
have been abated prior to the issuance of the order.

Likewise, it presented

no basis for an extension of the time for abatement.

Its principal contention

r-

in this regard is that the posts were unnecessary.

Such an assertion is

entitled to little weight in the light of the fact that U.S. Steel was in
violation of the approved roof control plan and its_ witnesses admitted that
the posts provided additional support for the roof.

Hence, I reject U.S.

Steel's challenge to the validity of the order for the reasons that the violation was not totally abated within the time allowed and no valid reason has
been established for an extension of the time for abatement.

1234

Since I have fuund- tne citation and order to be valid, the next issue
is the amount of the civil penalty to be assessed.

In assessing a civil

penalty, the six criteria set forth in section llO(i) of the Act shall be
considered.

As pertinent here, the operator's prior history of 276 viola-

tions in this mine in the previous two years is noted.
those violations were of 30 C.F.R. § 75.200.

Forty-three of

U.S. Steel is a large operator

and the assessment of a civil penalty will not affect its ability to continue
in business.
U.S. Steel was negligent in its failure to discover and correct the
violation of the approved roof control plan.

Such conduct amounts to ordi-

nary negligence.
Since many miners pass through the entry in question, the number of
miners exposed to potential injury is high.

However, the uncontroverted

evidence of record is that the roof in question was excellent.
tor did not examine or test the roof.
in this section.

The inspec-

There was no history of roof falls

Subsequent to the citation and or~er in controversy here,

a roof control plan was approved for a nearby section permitting entries
up to 20 feet in width.

Thus, while a significant number of miners were

exposed to potentially severe injuries, the likelihood of such an injury
was remote.
The failure of U.S. Steel to abate the citation in time prescribed
demonstrates a lack of good-faith compliance.

Its belief that it was not

in violation of the approved roof control plan is no excuse for failure
to abate a citation.

Its claim that it abated the citation by setting posts

1235

where there were -marks

on the rib is rejected because the inspector gave

it proper notice of the area in violation and it had the means available
to attain compliance.
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 of $500 should
be imposed for the violation found to have occurred.
ORDER
Therefore, it is ORDERED that respondent pay the sum of $500 within
30 days of the date of this decision as a civil penalty for the violation
of 30 C.F.R. § 75.200.

It is FURTHER ORDERED that Citation No. 680282 is

vacated and the petition to assess a civil penalty thereon is DISMISSED.

Distribution by Certified Mail:
James Swain, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market St., Room 14480, Philadelphia-,- PA 19104
Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St.,
Room 6044, Pittsburgh, PA 15230

1236

FEDERAi.- Ml-NE--SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6210/11/12

1 4 MAY 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 79-281
A.O. No. 15-10445-03013 H

v.

Bevins Branch Prep. Plant

CALL & RAMSEY COAL CO., INC.,
Respondent
DECISION AND ORDER
The parties 'move for approval of a settlement of a violation
by an independent contractor of the prohibition against operating a
mobile crane within 10 feet of an energized overhead power line, 30
CFR 77.807-2. The violation was the subject of an innninent danger
closure order issued December 4, 1978 and terminated January 23, 1979.
As noted, the operator, Call and Ramsey Coal Company, did not
connnit the violation charged. The violation was committed by W. D.
Robertson and Co., an independent contractor, who furnishes mobile
cranes to dip slurry ponds.
The difficulty is that the order does not allege a violation of
the standard in that it is not charged that at the time the order was
written the crane was being operated within 10 feet of an energized power
line. The only charge is that the crane, which at the time was parked
and idled, was "in close proximity to energized power lines." The
inspector admitted that at no time did he measure the distance from the
boom to the nearest power line. On the other hand, the operator's chief
engineer measured the distance and reported there was no way the crane
boom could contact the wire.
The premises considered, I find the charge and the proof offered
in its support legally insufficient to establish the violation charged. ll

l/ In accordance with my understanding of section llO(k) of the Act,
factual assertions in this Decision and Order are based on an independent
evaluation and de nova review of the information submitted in support of
the parties' motion to approve settlement. Should the disposition
proposed be unacceptable the parties may request a settlement conference
or evidentiary hearing to offer additional facts in support of the
settlement proposed.

1237

Accordingly, it is ORDERED that the motion to approve settlement be,
and hereby is, DENIED. It is FURTHER ORDERED
the captioned proposal
for penalty be, and hereby is, DISMISSED.

Distribution:
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)
Charles J. Baird, Esq., Baird & Baird, 2nd St., ~ikeville, KY 41501
(Certified Mail)

1238

FEDj~A-~_MINLIAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

1 5 MAY 7980

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 79-70
A.O. No. 34-00976-03005

Petitioner
v.

Red Oak Mine
FARRELL-COOPER MINING COMPANY,
Respondent
DECISION
Appearances:

David S. Jones, Attorney, U.S. Department of Labor, Dallas,
Texas, for the petitioner;
Genevieve Farrell Yoes, Esquire, Forth Smith, Arkansas, for
the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent on April 23, 1979, pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a), seeking assessment of civil penalties for three alleged violations
of certain mandatory safety standards found in Part 77, Title 30, Code of
Federal Regulations. The alleged violations were served on the respondent
in three section 104(a) citations issued by MSHA inspector-Donalee Boatright
on October 18, 1978.
Respondent filed a timely answer to the petitioner's proposals, asserted
several factual and legal defenses, and by notice of hearing issued on
February 4, 1980, the case was docketed for hearing in Fort Smith, Arkansas,
on April 15, 1980. Subsequently, by telephone call to my office at approximately 4 p.m. , Friday, April 11, 1980, counsel for the petitioner advised
me for the first time that the case had been settled and that he mailed a
letter to that effect to the Commission on Wednesday, April 9, 1980. I
advised counsel that the letter had not beert·received and that I considered
his telephone call as untimely, and that the petitioner should enter an
appearance at the hearing or run the risk of my dismissing the docket.
Counsel was further informed that another case scheduled for hearing at

1239

2 p.m. on April 15, was being handled by his office and that the attorney
representing MSHA in that proceeding could present any settlement proposals
with respect to this matter on the record when the docket was called for
trial.
The parties appeared at the hearing, and after a brief prehearing conference concerning the proposed settlement, including a discussion with
counsel regarding the timely filing of proposed settlements, the parties
were afforded an oppo.rtunity to present their settlement proposals on the
record.
Discussion
The citations, initial assessments, and the proposed settlement amounts
are as follows:
Citation No.

Date

30 C.F.R
Section

393052
393053
393054

10/18/78
10/18/78
10/18/78

77.1605(k)
77 .1110
77.1605(k)

Assessment

Settlement

$ 140
90
140
$ 370

$ 90
66
90
$246

In support of the proposed settlement, the parties filed a joint settlement agreement executed on April 14, 1980, and petitioner asserts therein
that it has reconsidered and reviewed the statutory factors concerning the
size of the respondent, its previous history of violations, the gravity of
the violations in issue here, respondent's negligence, and its good faith
compliance. Petitioner also filed copies of the citations, the "inspector's
statements" concerning each citation, and information concerning respondent's
prior history of violations, its size, the abatements, and the gravity presented as to each citation (Exhs. P-l(a) through P-l(k)).
Citation Nos. 393052 and 393054 both allege violations of the provisions
of 30 C.F.R. § 77.1605(k), which requires that berms or guards be provided on
the outer banks of elevated roadways. The information contained in Exhibit
P-l(j) with regard to Citation No. 393052 reflects that the roadway in question was not a regularly traveled roadway, that due to the height of the
drop-off there was very little chance of injury, and that the berm was provided in the shortest possible time. With regard to Citation No. 393054,
the information provided reflects that the "roadway" in question had not
been established since the scrapers were removing topsoil and as soon as it
was removed a berm was provided.
In addition to the foregoing, the parties conceded that the proposed
settlement takes into consideration the fact that the berm citations issued
by the inspector allege that berms were not provided on the inner banks of
the roadways in question, and that this defense was raised by the respondent
in its initial answer to the petitioner's proposals for assessment of civil

1240

penalties for these citations (Tr. 15). Petitioner's counsel also asserted
that respondent rapidly abated the conditions cited.
With regard to Citation No. 393053, the inspector's citation reflects
that it was issued because the fire extinguisher on a piece of equipment was
discharged and not maintained in an operable condition. However, the record
(Exh. P-l(j)), reflects that a new one was provided immediately and that
there was no gross negligence (Tr. 14).
The parties agree that the respondent is a medium-sized coal mine operator, and its prior history of violations during the 2-year period preceding
the issuance of the citations in question here consists of 38 citations (Tr.
16-18; Exh. P-l(i)).
Conclusion
After. careful consideration of the arguments presented by the parties
in support of the proposed settlement, including review of the information
contained in the exhibits and pleadings, I conclude and find that the proposed settlement disposition of this case should be approved.
ORDER
Pursuant to Commission Rule 29 C.F.R. § 2700.30, the settlement is
APPROVED, and respondent is ORDERED to pay civil penalties in the amount
of $246 within thirty (30) days of the date of this decision and order in
satisfaction of the aforementioned citations. Upon receipt of payment by
MSHA, this matter is DISMISSED.

Administrative Law Judge
Distribution:
David S. Jones, Esquire, U.S. Department of Labor, Office of the
Solicitor, 555 Griffin Square Building, Suite 501, Griffin & Young
Streets, Dallas, TX 75202 (Certified Mail)
Genevieve Farrell Yoes, Esquire, Farrell-Cooper Mining Company,
Box 1947, Fort Smith, AR 72902 (Certified Mail)

1241

FEDf:J~A~ __M.IN.E _SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, IOTH FLOOR
520.3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 o 1980
EASTERN ASSOCIATED COAL CORP.,
Applicant

Notice of Contest
Docket No. WEVA 80-120-R

v.
Citation No. 0628565
October 29, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Federal No. 2 Mine

DECISION Ai.~D ORDER GRANTING MOTION AND DISMISSING PROCEEDING
Appearances:

Robert C. Brady, Legal Assistant, Eastern Associated Coal
Corporation, Pittsburgh, Pennsylvania, for Applicant;
Barbara F. Kaufmann, Esq., Office of the Solicitor, Department of Labor, Philadelphia, Pennsylvania, for ·Respondent.

On October 29, 1979, the Applicant, hereinafter, Eastern, received a
section 104(a) Citation. The Citation was terminated some 9 hours after
its issuance, presumably after the violative conditions were abated.
_Eastern's notice of contes~ which was filed on November 26, 1979, challenged:
1.

The existence of the violative conditions described in the citation.

2. The occurrence of a violation of 30 C.F.R.
citation, and

§

75.1403 as cited in the

3. The special findings contained in the citation, i.e., that the
alleged violation was "of such a nature as could signific'intly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard."
MSHA's answer was filed on December 7, 1979, requesting, inter alia,
that the review (contest) proceeding be continued and consolidated with a
penalty case (presu~ably to be filed by MSHA in the future), in accord with
advisory language contained in the FMSHRC decision in Energy Fuels Corporation, DENV-78-410, decided May 1, 1979, to wit:
If the citation lack(s) a need for an immediate hearing,
we would expect (the mine operator) to postpone his contest

1242

of the enU_re __cita.ti.on until a penalty is proposed. Even i f
he were to immediately contest all of a citation but lacked
an urgent need for a hearing, we see no reason why the contest
of the citation could not be placed on the Commission's docket
but simply continued until the penalty is proposed, contested,
and up for hearing. The two contests could then easily be
consolidated for hearing * * *·
On February 28, 1980, Eastern responded to MSHA's motion to continue.
and consolidate, quoting other portions of the Commission's Energy Fuels
decision and citing subsequent Commission decisions to the general effect
that an operator under the 1977 Act may obtain review of abated citations
and also to the effect that an operator has an interest in obtaining
immediate review of such citations in order to avoid followup withdrawal
orders, particularly where the citations contain "special findings" which
subject the operator to such orders.
On February 29, 1980, the Office of Assessments, proceeding under the
30 C.F.R., Part 100 administrative settlement procedures, proposed an
initial penalty of $150. An informal conference was h~ld on March 28,
1980, after which the Office of Assessments lowered the proposed penalty
to $106. Eastern paid this penalty op April 8, 1980, which apparently
by coincidence was the same date I heard argument from counsel at a
prehearing conference on MSHA's motion for continuance and consolidation.
The initial question in this proceeding was whether Eastern was entitled
to immediate review. An affirmative answer would have required my denying
MSHA's request for continuance and consolidation. However, by paying the
proposed penalty when it di'd Eastern changed the complexion of this proceeding as well as the issue. The issue now to be decided is: Does a mine
operator who has filed a prior notice of contest have the right to proceed
with review of the citation after paying the proposed penalty therefor?
Some of the issues at stake in the resolution of this question are the
effectiveness of the Office of Assessments, !/ and the encouragement
of automatic filings of notices of contests.
Having duly considered the contentions of both parties, I note at the
outset that an operator's payment of the initial proposed_penalty in the past
has resulted in the citation's becoming a part of the operator's history
of previous violations. The Valley Camp Coal Co., 1 IBMA 196, 204 (1972).
From this, I conclude that by paying at the administrative level a penalty,
whether the full amount of the proposed assessment or a compromised amount,
an operator necessarily concedes the existence of the conditions alleged

!/

"Half-settling" a case could. ultimately dilute the authority and effectiveness not only of the Assessment Office, but also of the Commission (and
its judges) when the time came for it to operate on its half of the matter.

1243

to be a violat-i-on--and -that such conditions as a matter of law constitute
a violation of the safety or health standards. !:_./
Focusing specifically on the "special findings" question, i.e.: Where
an operator has filed a notice of contest specifically challenging specific
findings, such as "unwarrantable failure" or "significant and substantial"
is such issue set to rest by the operator's payment of a penalty during
the administrative settlement stage pursuant to 30 C.F.R. §§ 100.S and
100.6, I conclude that it should be.
It must first be recognized that the operator, of course, is under
no compulsion, at this stage, to pay the proposed assessment issued by
MSHA's Assessment Office. Special findings, such as "unwarrantable failure", and "significant and substantial", although different from, are analogous to the statutory assessment factors of negligence and seriousness,
respectively, and as such will have been considered generically by MSHA
in its determination of a proper penalty and by both parties in reaching
any penalty settlement at the administrative level prior to a petition for
penalty assessment being filed with the Commission. If the mine operator
wishes to chalrenge these findings, it can and should, abstain from paying
a penalty at the administrative level, not only to preserve its objection
to such findings but also to mitigate the amount of penalty to be assessed
should prevail when the matter is subsequently heard.
]:_/ Otherwise, the situation might arise where after an administrative
settlement is reached a penalty is paid by the operator and thereafter,
in a subsequent review (notice of contest) proceeding, the citation (or
order) is found to be impro-perly issued and vacated.
It should also be noted that 30 C.F.R. § 100.6(c) provides that the
failure of a mine operator to contest the proposed penalty within 30 days
of receipt of notice thereof shall result in the proposed penalty being
deemed a "final order of the Commission" and not subject to review by any
court or agency. This seems to be a recognition of the necessity of merging
the contest and penalty proceedings at the earliest possible junctu~e. To
permit both types of proceedings to run separate courses to the end of the
line (final adjudication) will result in an absurdity. A precise cut-off
point must be established to avoid needless duplicative iitigation, confusion, and "jockeyin,g for position" by the parties. The better approach
would seem to be that when a penalty is imposed at the administrative
level whether by operation of the mine operator's default or by agreement
of the parties, all issues, whether the occurrence of the violation, the
validity of "special findings", or the amount of the penalty, are resolved
thereby. The purpose of the Office of Assessments and the Part 100
procedures is to settle a case with resultant convenience, economy and
expedition. These purposes are not served by dividing a case up, dragging
it out, and giving the parties two bites at the apple. From the mine
operator's point of view, the solution is clear: If you wish to proceed
with review, do not pay the penalty prematurely.

1244

It is ther§_for~__ held that a mine operator's payment of a proposed penalt)
at the adminstrative level constitutes acceptance of the validity of the
citation (or order) involved in all its aspects and that such payment
moots the issues raised in its notice of contest proceeding previously
instituted. 1./
ORDER
MSHA's motion to dismiss, having been found meritorious, is GRANTED.
This proceeding is DISMISSED.

Michael A. Lasher,

r., Judge

Distribution:
Robert c. Brady, Legal Assistant, Eastern Associated Coal Corporation,
1728 Koppers Bldg., Pittsburgh, PA 15219 (Certified Mail)
Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Rm. 14480, Philadelphia, PA 19104
(Certified Nail)
Harrison B. Combs, Esq., United Mine Workers of America,
900 15th Street, NW,' Washington, DC 20005 (Certified Mail)
3/ Nothing in this holding infringes on the "immediate review" rights
granted operators by Energy Fuels. Should MSHA drag its heels in issuing
notifications of its proposed assessments, the operator's remedy may well
lie in a motion to dismiss for the Secretary's failure to issue same
"within a reasonable time" as required by section 105(a) of the Act.

1245

FEDERAt.__ MINJLSAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

(703) 756-6230

2 1 MAY 1980

Contest of Citation

MATHIES COAL COMPANY,
Contestant

Docket No. PENN 79-149-R

v.

Mathies Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

DECISION
Appearances:

William H. Dickey, Jr., Esq., Pittsburgh, Pennsylvania, for
Contestant;
James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by Mathies Coal Company (hereinafter
"Mathies") under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d), to contest the validity of a citation issued by the
Mine Safety and Health Administration (hereinafter MSHA) for violation of a
mandatory safety standard.
§

The citation alleged a violation of 30 C.F.R.

75.316, violation of approved ventilation plan.

Pittsburgh, Pennsylvania, on January 23, 1980.

A hearing was held in

Basil Zaycosky testified on

behalf of MSHA and John Goroncy testified on behalf of Mathies.
filed briefs, proposed findings of fact, and conclusions of law.

1246

The parties

This case involves the alleged violation of 30 C.F.R. § 75.316, failure
to follow approved ventilation plan.

Specifically, Mathies was charged with

having only 16,200 cubic feet per minute (cfm) of air moving in entries 5
and 6 whereas its approved ventilation plan called for 18,000 cfm of air in
the affected areas.
ISSUE
Whether Mathies violated the Act or regulations as charged by MSHA.
APPLICABLE LAW
30 C.F.R. § 75.316 provides that a "ventilation system and methane and
dust control plan" shall be adopted by the operator and approved by the
Secretary for each coal mine.

The approved ventilation plan for the mine

in controversy provided that."a minimum quantity of 18,000 cfm will be
directed to not more than two entries located just outby the line of blocks
being mined"_(Exhs. G-1 & G-2).
STIPULATIONS
The parties stipulated the following:
1. Mathies Mine is owned and operated by Applicant,
Mathies Coal Company.
2. Mathies Coal Company is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction over
this proceeding p4rsuant to Section 105 of the 1977 Act.

4. The inspector who issued the subject Citation was a
duly authorized representative of the Secretary of Labor.

1247

5. A true and correct copy of the subject Citation was
properly served upon the operator in accordance with Section 104(a) of the 1977 Act.
6. Copies of the subject Citation and Termination are
authentic and may be admitted into evidence for the purpose
of establishing their issuance and not for the truthfulness
or relevancy of any statements asserted therein.
SUMMARY OF THE EVIDENCE

On August 24, 1979, Mathies was engaged in retreat mining at 2 Butt,
19 face section of the Mathies Mine.

Basil Zaycosky, an MSHA inspector,

performed a saturation spot inspection at that time.

After performing some

preliminary tests, the inspector decided to measure the air velocity at
entries 5 and 6.

He attempted to use an anemometer, an instrument for

measuring air velocity.

However, he was unable to obtain a satisfactory

reading on the anemometer because of insufficient air velocity.
Thereupon, he decided to calculate the air velocities by use of a smoke
cloud test.

He took measurements which disclosed that each entry was

16 feet wide and 7-1/2 feet high.
in each entry.

He then measured a distance of 10 feet

At one end of this 10-foot measurement, he would release a

smoke cloud from an aspirator containing a smoke tube.

At the other end of

the 10-foot measurement, he stationed Jim Smith, chairman of the union safety
committee.

Jim Smith was instucted to "holler, 'now"' when the smoke cloud

reached the end of the 10-foot measurement.

From the time the inspector

released the smoke cloud until he heard Mr. Smith say "now," the inspector
watched the sweep second hand on his wrist watch.

The inspector then wrote

the number of seconds it took the smoke cloud to traverse the 10 feet on

1248

each test.

He performed the smoke cloud test five times, at different

places, in each of the two entries in controversy.
After the 10 smoke cloud tests were completed, he averaged the results
to calculate the air velocity in each entry.

The average time obtained for

entry No. 6 was 9 seconds; the average for entry No. 5 was 9.6 seconds.
Inspector Zaycosky then obtained the velocity in each entry by dividing the
constant of 600 (60 seconds times 10 feet) by the average time obtained on
the above smoke cloud tests.

He obtained the cubic feet per minute by

multiplying the velocity by the width and height of the entry.

On the day

the citation was issued, Inspector Zaycosky calculated cubic feet per minute
of air as follows:

Entry No. 5 had 8,220 cfm and Entry No. 6 had 8,040 cfm.

Thus, he arrived at a total of 16,260 cfm at the involved entries whereas
the approved ventilation plan called for 18,000 cfm.

However, on the witness

stand, Inspector Zaycosky conceded that he had committed a mathematical error
in calculating the velocity at entry No. 5.

The correct amount of cubic feet

per minute at entry No. 5 should have been 7,500 rather than 8,220.

Hence,

the combined cubic feet of air reaching the affected entries was only 15,540.
Inspector Zaycosky testified that from the time he released the smoke
cloud until he heard Mr. Smith say "now", he was continually observing the
sweep second hand of his watch.

He relied upon Mr. Smith's verbal act to

obtain the necessary data for his calculations.

In his 8 years as an

inspector, he has performed approximately six smoke cloud tests.
Mathies called section foreman John Goroncy as a witness.

Mr. Goroncy

stated that the preshift examination for the shift in question showed

1249

19,696 cfm of air in entries No. 5 and 6.

On the day in question, safety

supervisor John Marn, now deceased, approached foreman Goroncy and told him
that there was not enough air in the section.

At that point, Mr. Goroncy

shut off the power to the entire section and ordered everyone to stop mining
and to begin correcting leaks in the canvas to increase the amount of air.
Mr. Goroncy did not make any measurements of the air in the affected entries
but he assumed that John Marn made such measurements.

Mr. Goroncy did not

observe Inspector Zaycosky and James Smith perform the smoke cloud tests.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, arguments of counsel, proposed findings of fact and conclusions of law have been considered.

Mathies

has challenged the citation in controversy for the following reasons:

(1)

the smoke cloud test was improper; and (2) even if the volume of air in
question was less than 18,000 cfm, no violation occurred.
The inspector was required to use a smoke cloud test to measure the
amount of air in question because he was unable to obtain a sufficient velocity of air to use an anemometer.

While Mathies aggressively challenges the

validity of the smoke cloud test in this proceeding, its own evidence and
statements of its counsel indicate that there was less than 18,000 cfm of
air in the area in question.

In the opening statement of Mathies counsel,

he stated that "management was taking every possible· method to correct it-to correct the lack of air or the slight drop in air and bring it up to
18,000."

(Emphasis supplied.)

(R. 9).

Moreover, Mathies section foreman

John Goroncy, testified that Mathies safety supervisor John Marn, stated,

1250

"I don't think you have enough air coming up your tramway" (R 67).

Mathies

did not present any evidence concerning the amount of air in the affected
area.

At the hearing, it did not offer any evidence concerning the proper

method of performing a smoke cloud test.

After the record was closed, in

its posthearing brief, Mathies submitted a report and a bulletin from the
Bureau of Mines concerning low-velocity airflow measurements in mines.
This practice of submitting evidence after the record in the proceeding is
closed, with no request to reopen the record, is to be discouraged.

However,

suffice it to say that nothing contained in the above-mentioned publications
negates the validity of the tests performed by Inspector Zaycosky.

While

the inspector committed a mathematical error in his calculations of the
cubic feet of air per minute, the error favored Mathies.

The citation

alleged 16,220 cfm whereas the correct amount should have been 15,540 cfm.
I find that MSHA has established that the adopted and approved ventilation
plan called for 18,000 cfm in the affected area and that Mathies had less
than 18,000 cfm at the time the citation was issued.
Mathies contends that even though the approved ventilation plan ·
required 18,000 cfm, no violation occurred.

This assertion is premised on

an analogy to the presence of methane in excess of 1.0 percent which does
not constitute a per se violation.

Mathies goes on to argue that, "if the

operator is allowed to take corrective measures when methane is detected, it
1s certainly reasonable to permit the operator the same latitude to correct
an air quantity deficiency prior to the issuance of a citation."

Mathies'

purported analogy to excessive methane accumulations is misplaced.

Unlike

accumulations or inundations of methane, the quantity of air delivered to

1251

an area of a mine is totally under the control of the operator.

Moreover,

the violation in controversy here was of the plan adopted by the operator
itself.

It is clear that the provisions of a ventilation plan adopted by

the operator and approved by MSHA are enforceable as mandatory safety and
health standards under the Act.
(D.C. Cir. 1976).

Ziegler Coal Co. v. Kleppe, 536 F.2d 398

Mathies' violation of the ventilation plan establishes a

violation of a mandatory standard for which a citation was properly issued.
Mathies' evidence concerning the quantity of air on the preshift examination and its decision to voluntarily terminate normal mining operations in
the section is irrelevant to the question of whether it·violated the adopted
and approved ventilation plan.
I find that Mathies violated 30 C.F.R. § 75.316 in that it failed to
deliver 18,000 cfm of air to the affected area in violation of the adopted
and approved ventilation plan.
ORDER
Mathies' contest of citation is DISMISSED and Citation No. 0623975 is
AFFIRMED.

Distribution:

(__/

William H. Dickey, Jr., Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
James H. Swain, Esq., Office. of Solicitor, .U.S. Department of Labor,
14480 Gateway Bldg., 3535 Market Street Philadelphia, PA 19104
(Certified Mail)

1252

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 9 MAY 1980
KENTUCKY CARBON CORPORATION,
Applicant

Application for Review
Docket No. KENT 79-142-R

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ,(MSHA) ,
Petitioner

Order No. 704007
May 9, 1979
Kencar No. 1 Mine
Civil Penalty Proceeding
Docket No. KENT 80-171
Assessment Control
No. 15-02107-03021 H

v.
Kencar No. 1 Mine
KENTUCKY CARBON CORPORATION,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ERNIE FULLER,
FRANKIE PRATER, ERVIN HURLEY,
DARRELL VARNEY, RONNIE RATLIFF,
RONNIE CASEY, TERRY HAGER, and
DONALD EPLING,
Complainants

Complaint of Discharge,
Discrimination, or Interference
Docket No. KENT 79-344-D
Kencar No. 1 Mine

v.
KENTUCKY CARBON CORPORATION,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of LARRY SIMKINS,
RICHARD A. DOTSON, DARRELL
REYNOLDS, RICKY JUSTUS, and

Complaint of Discharge,
Discrimination, or Interference
Docket No. KENT 79-352-D
Kencar No. 1 Mine

GARY D. VARNEY,

Complainants

v.
KENTUCKY CARBON CORPORATION,
Respondent
1253

Secretary v. Kentucky Carbon, Docket Nos. KENT 79-142-R, et al. (Contd.)
SECRETARY OF LABOR

MINE SAFETY AND HEALTH

Complaint of Dischrage,
Discrimination, or Interference

ADMINISTRATION (MSHA),
on behalf of LARRY SIMPKINS,
Complainant

Docket No. KENT 79-353-D
Kencar No. 1 Mine

v.

KENTUCKY CARBON CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

C. Lynch Christian III, Esq., Jackson, Kelly, Holt &
O'Farrell, Charleston, West Virginia, for Kentucky
Carbon Corporation;
William F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, for Complainants.

Before:

Administrative Law Judge Steffey

When the hearing in the above-entitled consolidated proceeding was convened in Pikeville, Kentucky, on March 25, 1980, counsel for the parties
stated that they had been able to settle all of the issues involved and asked
that I approve the settlement agreements which they had reached in the
interrelated cases.
Docket No. KENT 79-142-R
The Applic~tion for Review filed in Docket No. KENT 79-142-R contended
that Order No. 704007 issued May 9, 1979, under section 107(a) of the Federal
Coal Mine Health and Safety Act of 1977 was invalid because no imminent danger
existed at the time the order was issued. Order No. 704007 alleged the
existence of an imminent danger because a portion of the roof in the No. 9
Longwall Section had dropped down and two miners were working on the roof
near the No. 8 Chock.
Counsel for Kentucky Carbon stated that he wanted to withdraw his
Application for Review of Order No. 704007 because MSHA had agreed that the
two miners were not exposed to an imminent danger and that the violation of
section 75.200 had been written because a danger board, posted by the company
before the inspector's arrival, had been knocked down so that it was not
apparent to the inspector that the company had recognized existence of the
bad roof conditions and was correcting them at the time the order was written.
Docket No. KENT 80-171
The Proposal for Assessment of Civil Penalty filed in Docket No.
KENT 80-171 seeks assessment of a civil penalty for the violation of section 75.200 alleged in Order No. 704007 which is the subject of the Application for Review filed in Docket No. KENT 79-142-R discussed above. Counsel
for the parties stated that under the settlement agreement reached by the
parties, respondent had agreed to pay a penalty of $50 for the violation

1254

Secretary v. Kentucky Carbon, Docket Nos. KENT 79-142-R, et al. (Contd.)
of section 75.200 alleged in Order No. 704007 instead of the penalty of
$563 proposed by the Assessment Office. In support of their settlement
agreement, the parties presented the facts hereinafter discussed to show how
they had considered the six criteria set forth in section llO(i) of the Act.
As to the size of respondent's business, the Kencar No. 1 Mine here
involved produces about 1,700 tons of coal per day. Kentucky Carbon
Corporation is a wholly owned subsidiary of Carbon Fuel Company which is a
moderate to large-sized operator. Counsel for Kentucky Carbon stated that
payment of penalties would not cause the company to discontinue in business.
Exhibit 1 was introduced at the hearing to present facts pertaining to
Kentucky Carbon's history of previous violations. That exhibit shows that the
company is endeavoring to reduce the number of violations of section 75.200
which have occurred at its Kencar No. 1 Mine. There were seven violations
of section 75.200 in 1977, two in 1978, and 1 in 1979. That trend in the
reduction of violations of section 75.200 justifies only a nominal penalty
under the criterion of history of previous violations.
As to the criterion of negligence, the parties agreed that the roof had
dropped down as stated in the inspector's order, but the condition of the roof
did not occur because of any failure on the part of respondent to follow the
roof-supporting provisions of its roof control plan. Kentucky Carbon was,
therefore, not negligent with respect to occurrence of the violation.
With respect to the criterion of gravity, it must be borne in mind
that the violation of section 75.200 related to the fact that the danger
board had either fallen down or had been taken down. The parties agreed
that regardless of the reason that the danger board was not in a proper
position, the miners on the longwall section were aware of the condition of
the roof and the two men described in the inspector's order were under the
four legs of a longwall chock and were therefore not exposed to the dangers
of the roof which did exist over the top tips of the chocks. The miners
were working on the chocks to assist in correcting the conditions that existed.
With respect to the criterion of whether Kentucky Carbon demonstrated
a good faith effort to achieve rapid compliance, the facts __show that Kentucky
Carbon's employees had discovered the condition of the roof, had posted the
existence of the bad roof condition in the preshift book, had posted a danger
board, had adopted a plan for correcting the roof condition, and were in the
process of correcting the condition when the order was written.
I find that the parties presented facts showing adequate consideration
of the six criteria and giving satisfactory reasons for approving the settlement agreement under which respondent will pay a penalty of $50.
Docket No. KXNT 79-344-D
The complainants in Docket No. KENT 79-344-D alleged that they were
illegally discharged because they withdrew from the No. 10 Longwall Section
after finding equipment which would not deenergize when overloaded and after
learning that the two-way communication facilities would not function.

1255

Secretary v. Kentucky Carbon, Docket Nos. KENT 79-142-R, ~ al. (Contd.
Counsel for comPJ.ainants-s~ated at the hearing that he had agreed to withdraw
the complaint in Docket No. KENT 79-344-D because the matters at issue in
that docket have been the subject of an arbitration hearing which resulted
in resolution of all issues in a manner satisfactory to the miners, namely,
the payment to the miners of all back pay from the date of their suspension
with intent to discharge.
Docket No. KENT 79-352-D
The complaint in Docket No. KENT 79-352-D contended that the miners had
been illegally discharged when they objected to the unsafe 1!lanner in which
management had instructed them to correct a hazardous roof condition in the
No. 9 Longwall Section. Counsel for the complainants stated that be had agreed
to withdraw the complaint in Docket No. KENT 79-352-D because Kentucky
Carbon has agreed to pay each of the five complainants in this case back
pay for 4 days, 2-1/2 hours representing one-half of the time they were off
from work as a result of the activities which occurred on May 8, 1979, and
which were the subject of their complaint.
Docket No. KENT 79-353-D
The complaint in Docket No. KENT 79-353-D alleged that management had
ordered complainant to leave mine property and had refused to let him examine
allegedly unsafe conditions in the No. 10 Longwall Section in his capacity as
the representative of the miners. Counsel for complainant.. i.ndicated at the
hearing that he would withdraw the complaint in Docket No. KENT 79-353-D
because Kentucky Carbon's management has recognized his right to act as a
safety committeeman on the day in question, that is May 8, 1979.
With respect to all of the discrimination cases, Kentucky Carbon has
agreed to remove from the personnel files of each of the complainants all
references to the suspensions with intent to discharge which were the subject
of the complaints.
I find that satisfactory reasons were given at the hearing to justify
granting the requests to withdraw the three discrimination complaints. The
complaining miners were present at the hearing and indicated that they were
satisfied with the outcome of the settlement negotiations._ I have been orally
advised by the Secretary's counsel that the back pay which Kentucky Carbon
agreed to pay the complainants has been received by the complainants.
WHEREFORE, it is ordered:
(A) The motion of Kentucky Carbon for withdrawal of its Application
for Review in Docket No. KENT 79-142-R is granted and the Application for
Review is deemed to have been withdrawn.
(B) The parties' motion for approval of the settlement agreement reached
in Docket No. KENT 80-171 is granted and the settlement agreement is approved.
(C) Pursuant to the settlement agreement, Kentucky Carbon, within 30 days
from the date of this decision, shall pay a civil penalty of $50 for the
violation of section 75.200 alleged in Order No. 704007 dated May 9, 1979.

1256

Secretary v7-Kentucky Carbon, Docket Nos. KENT 79-142-R, .!! al. (Contd.)
(D) The requests by the Secretary's counsel for permission to withdraw
the complaints filed in Docket Nos. KENT 79-344-D, KENT 79-352-D, and
KENT 79-353-D are granted and the complaints in those dockets are deemed
to have been withdrawn.
(E) All further proceedings in Docket Nos. KENT 79-142-R, EENT 80-171,
KENT 79-344-D, KENT 79-352-D, and KENT 79-353-D are terminated.

~c.

rarr.n~

Richard c. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
C. Lynch Christian Ill, Esq., Attorney for Kentucky Carbon Corp.,
Jackson, Kelly, Holt & O'Farrell, 1500 One Valley Square,
Charleston, WV 25301 (Certified Mail)
William F. Taylor, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
District 30, United Mine Workers of America, Box 1618, Pikeville, KY
41501
Harrison Combs, Esq., United Mine Workers of America, 900 - 15th Street,
NW, Washington, DC 20005 (Certified Mail)
Mr. Bobby Gooslin, Route 2, Phelps, KY 41553
Thomas P. Piliero, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

1257

FEDEltAt-·t.UNI S-AFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
22041

FALLS CHURCH, VIRGINIA

(703; 756-6210/11/12

I 9 MA'< 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 79-11
A.O. No. 15-02709-03032 V
Camp No. 1 Mine

v.
PEABODY COAL COMPANY,
Respondent

DECISION
This is a civil penalty proceeding initiated by the petitioner
against the respondent through the filing of a proposal 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 one alleged violation of certain mandatory safety standards promulgated
pursuant to the Act.
Respondent filed a timely answer and the matter was scheduled for
hearing in Evansville, Indiana, June 26, 1980. However, by motion filed
May 27, 1980, petitioner seeks approval of a proposed settlement.
The citation, initial assessment, and the proposed settlement amount is
as follows:
Citation No.

Date

30 CFR Standard

Assessment

Settlement

396441

4/18/78

75.400

$2,500

$1,250

Discussion
Petitioner advances the following arguments in support of the proposed
settlement:
The citation alleges a violation of safety standard 30
C.F.R. 75.400, and particularly that loose coal, coal dust, and
float coal dust were permitted to accumulate along the belt conveyor
entry in No. 4 east off 2 main south. This violation is a result
of a low degree of ordinary negligence, and the probability of an
occurrence against which the cited standard is directed was
remote due to the fact that the operator had duly noted the

1258

condition. in--the--crew shift examination book and immediately
had instituted steps to correct the condition before production
was to begin.
It is the parties' belief that the proof would show that
the spillage of coal and the accumulation of float coal dust occurred
during the latter portion of the second shift on Apirl 17, 1978.
This is the last production shift before the citation was issued on
April 18, 1978. Furthermore, the proof would show that the spillage and
accumulation was duly noted in the preshift examination book, and at the
time the citation was issued coal was not being produced. In
addition, the respondent had taken steps immediately to correct the
condition before production of coal would begin.
Concluding, therefore~ the violation is a result of a low
degree of ordinary negligence. The occurrence of the event against which
the cited standard is directed was improbable due to the circumstances
set forth above. In addition, the respondent is entitled to
maximum good faith consideration by achieving rapid compliance.
In addition to the foregoing, petitioner states that respondent's history
of prior violations does not appear to be excessive, that respondent is a
large operator and the penalty agreed upon by the parties will have no
effect on its ability to remain in business. Finally, petitioner asserts
that the parties believe that approval of the proposed settlement is in
the public interest and will further the intent and purpose of the Act.
Conclusion
After careful review of the arguments submitted by the petitioner in
support of the proposed settlement, and after review of the pleadings and the
information of record concerning the six statutory criteria contained in
section llO(i) of the Act, I conclude that the proposed settlement disposition
of this case is reasonable, will adequately protect the public interest, and
should be approved.
Order
Pursuant to Commission Rule 30, 29 CFR 2700.30, settlement is approved
and respondent is ordered to pay a civil penalty in the amount of $1,250 in
satisfaction of the citation in question, payment to be made to MSHA
within thirty (30) days of the date of this decision and order. Upon
receipt of payment, this matter is dismissed. The hearing scheduled for
Evansville, Indiana, June 26, 1980, is cancelled.

4/~

ge • Koutras
Administrative Law Judge

1259

Distribution:
Thomas R. Gallagher, Esq., Box 235, St. Louis, MO 63166 (Certified Mail)
William F. Taylor, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)

1260

FEDERAl .. M-IN-E-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th PLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

2 9 MAY 1990
SECRETARY OF LABOR,
MINE SAFETY .AND' HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. SE 79-57-M
Assessment Control
No. 31-00427-05003

v.
Grove Pit and Mill
GROVE STONE AND SAND COMPAN;Y,
Respondent
DECISION
Appearances:

William F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Thomas C. Newman, Corporate Safety Director,
Swannanoa, North Carolina, for Respondent.

Before

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 27, 1980, a hearing in
the above-entitled proceeding was held on April 8, 1980, in Asheville,
North Carolina, under section 105(d) of the Federal Mine Safety and
Health Act of 1977.
After completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 101-105):
This proceeding involves a Proposal for Assessment of
Civil Penalty filed in Docket No. SE 79-57-M on August 27,
1979, by the Mine Safety and Health Administration.seeking to
have a civil penalty assessed for an alleged violation of
30 CFR 56.9-2 by Grove Stone and Sand Company.
The issue in every civil penalty case is first of all
whether a violation occurred and then, of course, if a violation
is found to have occurred, a civil penalty has to be assessed
under the Act based on the six criteria which are set forth
in section llO(i) of the Act.
The first consideration in this case is whether a violation of section 56.9-2 actually occurred. That section provides
"[e]quipment defects affecting safety shall be corrected before
the equipment is used." Citation No. 108078 dated March 1, 1979,
which is Exhibit 1 in this proceeding, states that, "[t]he audible automatic reverse signal alarm was inoperable on the G-258
Caterpillar front end loader used in the stock pile area."

1261

MSHA v. Grove Stone, Docket No. SE 79-57-M (Contd.)
The section of the regulations which is involved does not
state specifically that a front-end loader must have an
operable back-up alarm. The section that is alleged to have
been violated would require that this particular Caterpillar
front-end loader have no safety defect in it before the equipment
is operated.
In order for the inspector to have been certain that that
defect existed before the equipment was ever operated, it would
have been necessary for him to have either checked with the
equipment operator or with Mr. Green, who was the mechanic, or
with someone who knew whether or not the equipment had been
inspected and checked before it was put into operation.
The facts are that Mr. Mouser, the inspector, wrote
Citation No. 108078 at 8:10 a.m. on March 1, 1979, after the
front-end loader had been used to load some mud dredged out
of the settling pond. At the time the inspector checked
the piece of equipment and had it operated to see if-the
back-up alarm was working, the front-end loader had been
parked and was not being used at that moment.
Everyone agrees, including Mr. Newman, who represents
the respondent in this case, that at the moment the equipment
was checked the back-up alarm did not work. The back-up
alarm is a type which has four steel balls in it and when the
equipment is in forward gear the balls stay in their compartments and make no noise, but when the equipment is reversed,
the balls fall out of their compartment against a bell and
make a clanging alarm sound.
Mr. Green, who is the mechanic for the company respondent,
testified that he saw and observed this equipment on March 1,
1979, and that he checked this equipment and other equipment
and found no defects in them on that date.
Therefore, his testimony shows that there was no
equipment defect on this Caterpillar front-end loader prior
to the commencement of the shift. And Mr. Green says that
he would have corrected anything that he found wrong with this
alarm if he had found anything, because that was his practice.
The inspector seemed to think that the alarm did not work
because it was bent, whereas, the mechanic, Mr. Green, states
that the only thing that kept the alarm from working was the
fact that it had a lot of mud in it as a result of having
been used in the area where the settling pond was located.
So, I have before me some evidence which is fairly
strong that the back-up alarm was operative before the shift
started and I don't have any testimony from the inspector or
anyone else who· really knows that the equipment was not free

1262

MSHA v. Grove Stone, Docket No. SE 79-57-M (Contd.)
of defects-before it was operated. The inspector does not
claim to have made a check to make certain that it was defective before it was operated. And, I do have the testimony
of Mr. Green that he did check the equipment, and that it had
no defects before it was put into operation.
Now, it is true that Mr. Taylor has made some very good
arguments about credibility and his primary point is that
Mr. Green could not have remembered a check of the equipment
which he made on March 1, 1979. But Mr. Newman has countered
that argument by pointing out that he did inquire of Mr. Green
after the mud was removed from this alarm as to whether the
equipment had been checked and as to whether the bent portion
of the alarm would have kept it from working. And, it is
Mr. Green's position that the bent condition of the alarm
did not prevent it from working but that the mud inside the
alarm did prevent it from working.
Additionally, Mr. Green based his testimony not entirely
on whether he remembered March 1, 1979, but the fact that it
is his practice to correct anything wrong with equipment every
morning if he finds a defect in it.
So, we do not really have a situation here in which the
inspector claims unequivocally that this equipment was defective before it was used, but we have a statement by the inspector that when he checked it, it was defective. And, we have
the statement of Mr. Green that it was not defective before
it was operated.
So regardless of whether Mr. Green remembers each and
every detail about this piece of equipment, I think that the
preponderance of the evidence supports a finding that the
equipment had been checked and it was not defective before
the equipment was used; rather, the alarm became defective
from having been splashed by mud in the first hour of the
day before it was inspected.
Therefore, I think that the violation was not proved
and that the Proposal for Assessment of Civil Penalty should
be dismissed.
I should mention that one of the stipulations in evidence
in this case is that respondent has agreed that it is subject
to the jurisdiction of the Conunission, and that I have jurisdiction to decide the case.

1263

MSHA v. Grove. Stone, Docket No. SE 79-57-M

WHEREFORE, it is ordered:
The Proposal for Assessment of Civil Penalty filed in
Docket No. SE 79-57-M is dismissed.

R~e~~y ~te/h-

Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
William F. Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Grove Stone and Sand Company, Attention: Thomas C. Newman,
Corporate Safety Director, P.O. Box 425, Swannanoa, NC
28778 (Certified Mail)

1264

FEDERAi. MINE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

9 o MA'f 1900
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. PITT 79-91-P
A.C. No. 36-00841-03010F

v.
Nanty Glo No. 31 Mine
BETHLEHEM MINES CORPORATION,
Respondent
DECISION
Appearances:

Sidney Salkin, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
T. W. Ehrke, Esq., Senior Industrial Relations Attorney,
Bethlehem Mines Corporation, Bethlehem, Pennsylvania, for
Respondent.

Before:

Judge Lasher

I.

Procedural Background

This proceeding arises under section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a), hereinafter "the Act."
On January 9, 1979, Petitioner filed its petition for assessment of
civil penalty. Respondent answered on February 16, 1979. The formal hearing on the merits was held in Ebensburg, Pennsylvania, on August 15, 1979,
at which both parties were represented by counsel.
II.

Violations Charged

In a citation issued by MSHA on June 26, 1978, the Respondent is charged
with a violation of 30 C.F.R. § 75.200, noncompliance with an approved roofcontrol plan. The condition or practice described in the citation alleges
that the roof-control plan was not being completely complied with in the
4 Right, 5 Cross (021) section as provided in Drawing No. 1 contained in the
roof-control plan. The citation further alleges that temporary support
Nos. B, E, F, G, and I, were not installed in the pillar split between the
No. 3 and No. 4 entries 40 feet inby spad No. 7441 after mining was completed
and before a roof-bolting machine began installing permanent supports. The
citation indicates that the violation was revealed during an investigation
into a roof fall accident which resulted in a fatality.

1265

III.

Statement -ef t;he-· Is-sues

1. Whether the conditions or practices described in the citation violated mandatory health or safety standards, and, if so, the amount of the
penalty which should be assessed based on the criteria set forth in section
llO(i) of the Act.
2. Whether negligence on the part of Respondent was involved in the
alleged violation, and, if so, the degree thereof.
3. Whether a causal relationship exists between (a) any violation found
to have occurred or (b) any act of negligence attributable to Respondent
found to have occurred and the roof fall which resµlted in the death of Ken
Vivis, a roof bolter who was crushed to death when the roof fell.
IV.

Findings of Fact with Respect to the Three General Criteria

The factors of (1) size of business, (2) history of previous violations,
and (3) effect on Respondent's ability to continue in business lend themselves to preliminary findings of fact.
1.

Size of Business

The parties stipulated that the Nanty Glo No. 31 Mine produces
216,861 tons of coal per year and that Bethlehem Mine's total annual production of coal is in excess of 8 million tons. The parties stipulated, and
I find that this is a large coal mine operator.
2.

History of Previous Violations

The computerized history of previous violations introduced at the hearing indicates that Respondent, during the 2-year period preceding the commission of the alleged violation, committed approximately 268 violations.
I find that this is not an unusual number of prior violations for a large
operator and that this statutory factor affords no basis for either
increasing or decreasing the amount of any appropriate penalty should a
violation be found to have been established.
3.

-

Effect on the Operator's Ability to Continue in Business

The parties stipulated, and I find, that any penalty imposed in this
proceeding will not adversely affect Respondent's ability to continue in
business (Tr. 5).
V.

Findings of Fact with Respect to Liability And The Three Specific
Criteria

The Respondent acted in good faith in attempting to achieve rapid abatement of the conditions resulting in the issuance of the order of withdrawal
involved herein. Thus, the occurrence of the violation charged and the

1266

factors of neglig~n~e.and.. seriousness remain for consideration and are the
focus of the findings which follow:
1. A roof-fall accident occurred at Bethlehem Mines Corporation's
Nanty Glo No. 31 Mine at about 7 p.m. on Thursday, June 22, 1978, in the
No. 22 room between the Nos. 3 and 4 entries of the 4 Right, off the
5 Cross, in the 0-21 section which resulted in the death of Kenneth R.
Vivis, a roof-bolter operator.
2. MSHA was no~ified shortly thereafter and an investigation began
that evening (June 22, 1978).
3. The area of the mine.involved in the accident was known by the
operator to have bad roof along the right rib.
4.

Vivis was informed of the condition of the roof.

5. Vivis had 39 months' mining experience, 9 months of which he was a
roof-bolter operator.
6. Vivis knocked out two temporary roof supports immediately prior to
the fatal accident.
7. The approved roof-control plan for the No. 22 room required at least
12 posts.
8.

There were less than 12 set at the time of the accident.

9.

The circtm1stances of the accident are as follows:

On Thursday, June 22, 1978, at approximately 4 p.m., the 4 Right off
5 Cross, 0-21 section crew, under the supervision of William J. Zamboni,
lead foreman, entered the ~ine via portal bus and traveled to the working
section arriving there at approximately 4:35 p.m. Zamboni made an examination of the working places after which he instructed Thom~s R. Yahner,
continuous-miner operator, to complete the mining in the No. 22 room. The
room was being developed by splitting the pillars perpendicular to the section entries. A cut-through had been made between the Nos. 3 and 4 entries
on the previous shift, but additional mining was required to develop the
room to its normal width. Zamboni's instructions to Yahner were to remove
the temporary supports from the face area, finish mining and to clean up
the place. After removing the supports, Yahner observed the roof was broken
along the right rib and reported the condition to Zamboni.
Zamboni left the No. 22 room and traveled down the No. 3 entry. The
roof-bolting machine was parked in the first open crosscutoutby the entrance
to the No. 22 room. Kenneth R. Vivis, roof-bolter operator, and Diane M.
Costlow, roof-bolter helper, were waiting to move the machine into the
No. 22 room upon withdrawal of the continuous miner. Zamboni told Vivis

1267

and Costlow t~inst-all-li-ne canvas in the No. 21 room while they were waiting. He also told them to move into the No. 22 room upon completion of mining and to install the temporary supports before beginning the bolting cycle
and to be aware of the bad roof on the right side of the place. Zamboni told
Viv is the roof was drtimmy on the right side and to "timber it heavy."
Shortly thereafter, mining was completed in the No. 22 room and the continuous miner was trammed to the belt feeder in the No. 3 entry for servicing.
Zamboni instructed Rick West on how to hang the cable of the continuous miner
as the miner backed up over to No. 20 room.
Vivis and Costlow moved the roof-bolting machine into the No. 22 room.
Costlow began to install temporary supports while Vivis prepared for roof
bolting. Then, both Vivis and Costlow came out into the No. 3 entry for
additional supplies. Zamboni asked Vivis if the place was timbered and he
replied that it was. 1/ Vivis and Costlow returned to the No. 22 room.
Costlow began putting-in more temporary supports while Vivis drilled a
test hole. After Costlow had put in a grand total of four or five temporary props, she informed Vivis that she was going for more props. 2/ Vivis
already had started the roof-bolting machine and had starting bolting,
despite the fact that Costlow had not yet finished putting up the temporary
supports. Costlow went to an area where she thought she would find props
but finding none, she returned to room No. 22.
As Costlow returned, she saw Vivis accidentally knock out two temporary
supports while he was maneuvering the roof bolter. Costlow heard a roar
and yelled a warning to Vivis, but the rock fell on him before he could
react. The rock fell immediately upon dislodgement of the temporary props.
Costlow deenergized the roof bolter and immediately summoned help from
the other crew members. The rock was raised and Vivis was removed from
under it and placed on a stretcher. Mouth-to-mouth resuscitation and CPR
were started and continued as Vivis was transported to the shaft bottom
where he was pronounced dead by Doctor Magley.
10. Zamboni, who was foreman at the time of the accident, gave Vivis
a direct order to "timber it heavy" (Tr. 243), meaning to put in more than
the normally required for the area involved, 12 props. Vivis ignored
Zamboni's order and unnecessarily exposed himself to a known hazardous
roof condition.
11. Zamboni properly designated Vivis and Costlow to install temporary
supports since the roof-control plan did not bar the roof-bolter crew from
putting in the required supports, and the miner crew does not necessarily
have to install temporary supports.
1/ However, in fact, the room was not timbered in accordance with the
roof-control plan which called for at least 12 props.
2/ The record is unclear as to how many posts were installed at the moment
of the fatality. Apparently, there were four posts along the left side which
were put up prior to Costlow's installation of an additional four or five.

1268

12. Although the general consensus was that Vivis was a safe worker,
Rick West who worked with Vivis on occasion, said that Vivis claimed the
day before that the roof was good and the temporary supports were not
necessary. Even so, some temporary supports were there. Along these lines,
I find that there is no previous indication that Vivis was an unsafe worker
or that management had reasons to believe he was careless.
13. It is not certain exactly how may props were set in place or how
many more than the minimtnn of 12 should have been posted. I find that less
than 12 were installed. This is at least a technical violation.
14. Even though a violation of the law existed there was no causal
relationship between the alleged violation and the fatal accident. The
proximate cause of the accident was Vivis' knocking out the posts which
supported the roof which fell. Vivis was a well trained employee. He knew
his job. He was satisfactorily supervised. He was capable of carrying out
his roof-bolting assignment. He was a careful and trusted employee who
apparently had a momentary lapse in observation or attention. These circumstances, when carefully examined in the record, do not fairly indicate blame
on the part of any other persons or Respondent's management.
15. I find that there were valid reasons for having the timber removed
in No. 22 room by the miner crew. There was no way the roof bolter could
get into the area unless the place was cleaned up and leveled. Furthermore,
removal of the timbers was not in violation of the roof-control plan. Under
the circtnnstances removal of the props was a proper exercise of discretion.
16. Management's training program for roof control is effective and
was not a causal factor in the accident. There was extensive testimony concerning Respondent's supervisory safety training program. Records were kept
to check and confirm that proper training was received by each employee.
Employees making mistakes were both reinstructed and reobserved by management to assure that their jobs were done safely in the future. Furthermore,
I find Zamboni's qualifications, training and certification to be of a high
quality. He received appropriate instruction in two separate training programs of 4 weeks each, he is qualified as an instructor, and his past
performance as an instructor has been reviewed without incident. Costlow
testified about the type of training which she received as a bolter helper
(Tr. 35), which I find to be satisfactory. Similarly, Vivis had been
satisfactorily instructed in safety methods.
17. I find no merit to the contention that Respondent was negligent
because Zamboni did not return to No. 22 room prior to when the roof-bolting
operation began. Vivis was an experienced employee who knew his job and
could be trusted. Also, Zamboni had instructed Costlow on the roof-bolter
helper job and he expected Vivis to help her put up the temporary posts.
Zamboni's decision in staying with West, an inexperienced continuous miner
helper, was a proper exercise of discretion. Furthermore, Zamboni testified that Vivis told him the place was timbered (Tr. 285). There was no
reason for Zamboni to believe that Vivis was not telling him the truth.
I find that the trust Zamboni put to Vivis' assertion was without fault.

1269

In addition, Inspector Chappell testified that there was no requirement
in the roof-control plan for Zamboni to check on Vivis prior to roof-bolting
operations (Tr. 169). Further, Zamboni testified that he planned to check
on Vivis during his normal rounds (Tr. 250).
Gravity
In weighing the gravity of the violation,, it is important to determine
if there was a causal relationship between the violation and the death of
Vivis. At the hearing, the only eyewitness to the accident, Costlow, testified that Vivis had "knocked two (props) out, and it came down. That is it"
(Tr. 29) .1/The direct, proximate cause of the roof. fall was the act of Vivis
in knocking down two of the props, causing the roof to innnediately fall.
While an insufficient number of props had been put up, which I find is a
technical violation of the Act, it is conjectural whether or not the roof
would have fallen if additional props had been up. Therefore, I find the
violation to be only moderately serious.
Penalty
§

Respondent is assessed a penalty of $1,000 for the violation of 30 C.F.R
75.200 found to have occurred.
ORDER

Wherefore it is ORDERED that Respondent pay to MSHA the penalty herein
assessed of $1,000 within 30 days from the date of this decision.

. : ' '-" ,,_.., /. £/~. ~

d

4, Judge

_;;;~ /d-,(,..{_'-'11'/ ~jfJt/c"?/ I .

· Michael A. Lasher,
Distribution:

Sidney Salkin, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
T. W. Ehrke, Esq., Senior Industrial Relations Attorney, Coal,
Bethlehem Mines Corporation, 1871 Martin Tower, Bethlehem, PA
18016 (Certified Mail)

1/ According to MSHA's Report of Investigation (Exhibit P-8), the "two
dislodged posts were supporting the rock that fell. 11

1270

FEDQAl.-MINJ:-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52oJ LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

3 0 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Complaint of Discrimination
Docket No. WEST 79-349-DM

On Behalf of Johnny N. Chacon,
Applicant

Morenci Mine

v.
PHELPS DODGE CORPORATION,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, San Francisco, California, for
Applicant;
Stephen w. Pogson, Esq., Evans, Kitchell & Jenckes,
Phoenix, Arizona, for Respondent.

Before:

Judge Lasher

This proceeding arises under section lOS(c) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held in Clifton, Arizona,
on April 16, 1980, at which both parties were represented by counsel. After
considering evidence submitted by both parties and proposed findings of fact
and conclusions of law proferred by counsel during closing argument, I entered
an opinion on the record. 1/ My bench decision containing findings, conclusions and rationale appears below as it appears in the transcript, other than
for minor corrections of grammar and punctuation and the excision of dicta:
This proceeding arises upon the filing of a discrimination complaint by the Secretary of Labor on behalf of
Johnny N. Chacon against the Phelps Dodge Corporation pursuant to the provisions of section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 ~ ~.,
wherein the Applicant alleges that the Respondent unlawfully
discriminated against Mr. Chacon by issuing him a written
warning on or about February 6, 1979, and by suspending him
from employment without pay for 3 days on February 13, 14,
and 15, 1979.

lf

Tr. 242-277.

1271

In its answer~ the-Respondent denies the allegations of
the complaint with respect to the alleged discrimination and
affirmatively alleges that Mr. Chacon was warned and suspended because he operated a locomotive at excessive speeds
which caused derailments at the two times involved.
The Respondent also alleged in its answer that the
"Alleged Complaint of Discrimination could have been raised
in the grievance and arbitration procedure in that because an
effective grievance and arbitration procedure is in operation
the Secretary is precluded from bringing this action." At
the commencement of this hearing, I ruled that the availability of arbitration procedures in the labor contract between
the United Transportation Union and its Local 1668 and the
Respondent did not preclude the Federal Mine Safety and
Health Review Commission from proceeding with the instant
case nor did it bar the Commission's jurisdiction. In
Phillips v. Kentucky Carbon Corporation, 2 IBMA 5, decided by
the Interior Department's Board of Mine Operations Appeals on
January 30, 1973, the Board pointed out that, "Should we
defer to an umpire's decision made under the National Labor
Relations Act of 1947, or an arbitration agreement, as controlling upon us, we would be abdicating the statutory obligations assigned to the Secretary by the Congress." The Board
went on to point out that in NRLB v. Pacific Intermountain
Express Company, 228 F.2d 17o':-t'he court found that each fact
finding agency is entitled to make its own decision upon the
evidence before it. I thus affirm the ruling which I made at
the beginning of this proceeding in this connection.
The general issues involved in this proceeding are
whether the alleged discriminatee, Mr. Chacon, engaged in
activities protected by the Act, particularly those in
Paragraph 105(c)(l) thereof, and, if so, whether the Respondent mine operator was aware of those activities and, if so,
if the Respondent disciplined Mr. Chacon because of his
engaging in such activities. The precise facets of these
issues will be subsequently dealt with in this decision.
Mr. Chacon has been an employee of Respondent for nearly
15 years and has been a locomotive engineer for approximately
the last 10 years of his employment. He is employed at
Respondent's Morenci Mine located at Morenci, Arizona. The
Morenci Mine is an open-pit mine. It employs approximately
70 to 75 locomotive engineers who work three shifts and who
operate locomotives which weigh approximately 75,000 pounds,
are 54 feet long, are 15 feet high, and 10 feet wide. Each
car pulled by the locomotive has a capacity of 72 tons and
the locomotive and the cars it pulls move over a railroad
track which for the purposes of this proceeding run along

1272

"benches" along. th~- ~ides of the open pit. The track which
is laid on "panel grades" comes in 30- to 50-foot lengths
and is placed on ties. The track is portable and it is constantly being moved. When the track is moved, the ties can
become loose and when there is bad or rainy weather the
st~bility of the track is adversely affected in that the
spikes holding the ties "give." Each locomotive which pulls
a train is operated by one locomotive engineer who operates
the locomotive _either from the cab of the locomotive, from
the caboose, or from the side of the locomotive. 'The cab of
each locomotive contains a speedometer and a "ChicagoPneumatic" speed recorder which is mechanically attached to
the engine and which records the speed of the locomotive on a
tape. The speed recorded on the tape is that which is shown
on the speedometer of the locomotive.
The speedometer is approximately the size of a standard
American automobile's and it measure speeds up to 70 to
80 miles per hour. I find that the needle of the speedometer
fluctuates or "bounces" regularly between 5 and 15 miles per
hour based upon the testimony of the locomotive operators who
operate the same who testified in this hearing. I find that
the speedometer and the speed recorder which records the
speeds shown on the speedometer are unreliable as a precise
indicator of the speed of the locomotive based upon the
credible evidence in this proceeding. All witnesses who testified on the subject conceded that to some extent there was
or there could be a variance between the speed shown on the
speedo~terand the actual speed being traveled.
One of the
reasons mentioned for the imprecision of the speedometer was
"slippage of wheels." I find that because of the imprecision
of the speedometer that the responsibility for operating a
locomotive at a safe and proper speed under the circumstances
and under varying circumstances must necessarily rest upon
the judgment of the locomotive operator. This, of course, is
a subjective judgment.
Under the Code of Safe Practice for Railroad Train Operations applicable to the Morenci Mine, Exhibit R-2, unless a
so-called "slow order" is posted on a call board, located for
purposes of this proceeding in a lineup shack, the maximum
permissible speed on good track which is to be observed by
locomotive engineers is 15 miles per hour for "bench tracks."
I note that the Code also provides that "track conditions may
dictate speeds slower than those listed above," which also is
evidence that in the final analysis the subjective judgment
of the locomotive engineer must determine what a safe and
proper speed is.
Derailments are common occurrences at the Morenci Mine.
The damage caused by a derailment can be negligible and can

1273

range upwarcCto a cost of approximately $100,000. The cost
of derailments where panels are damaged is approximately
$1,500 per panel. In 1977, 1,082 derailments occurred at the
Morenci Mine, in 1978, 1,164, and for the month of September
1979, a total of 77 derailments occurred. Figures for the
first 8 months of 1979 were not available. Following a
derailment, the track can be made operable the majority of
the time by "rerailing." Locomotive engineers experience a
derailment at the rate of approximately one per month.
Derailments can occur at slow speed as well as high speed
because of defects in the rails, the track generally, or the
equipment. A locomotive operator, upon the occurrence of a
derailment, customari~y reports the derailment to his foreman
and ultimately a "Foreman's Derailment Report" is prepared
which indicates among other things the speed of the train
based upon the speed recorder tape. See Exhibit A-3.
When "slow orders" are posted on the call board, the
"slow order" does not customarily indicate what the maximum
speed is to be. However, on occasion, a "sloworder" does
specify the maximum speed. There is no written instruction
or provision in operator.s' manuals or in courses taught by
either the Government or the operator or elsewhere or otherwise which express what a maximum speed is under a "slow
order." Neither Chacon specifically, nor other operators
have been advised by management personnel that there is a
maximum permissible speed under a "slow order," although
Respondent's witnesses generally were of the opinion that the
maximum speed would range from 5 to 10 miles per hour. See
testimony of Wesley Brooks, general mine foreman; Joseph
Hayes, assistant training coordinator--8 to 10 miles per hour.
Chacon became a union safety committeeman in 1977 and in
January 1979, he became Vice-Chairman of Local 1668, UTU. As
Vice-Chairman, he handled grievances usually in conjunction
with James Starr, the Chairman of the Local. When.Chacon
became Vice-Chairman, the union's concern and degree of militancy with respect to handling safety complaints elevated
beyond its previous level. Testimony of Starr and Exhibit A
attached to Answers to Interrogatories. On December 7, 1978,
Chacon participated in a grievance involving a safety complaint, a signal system defect, which was filed pursuant to
Article VIII of the Labor Agreement above mentioned. On
January 31, 1979, Chacon signed a grievance as committeeman
containing approximately 72 signatures of union members complaining of unsafe and improper maintenance on cabooses.
Exhibit A-7. On February 11, 1979, Lester D. Olson, mine
superintendent, issued a letter to Mr. E. H. Franco, representative of Local #1668 in connection with grievance hearings which were held in Olson's office on February 7 and 8,

1274

1979, which indicated, among other things, that the caboose
conditions were being investigated. On approximately
February 21, 2/ 1979, Chacon issued a letter to the acting
subdistrict manager of MSHA concerning the conditions involved
in the January 31, 1979, grievance. Exhibit A-9. On
February 8, 1979, Starr and Chacon signed a grievance for the
purpose of having the written warning which was issued to
Chacon on February 6, 1979, removed from his records.
Exhibit A-14. The written warning referred to, Exhibit A-13,
was signed by Kenneth A. Lines, assistant shift foreman, on
February 6, 1979, and warned Chacon for "excessive speed under
a slow order" on "2-5-79." The written warning is entitled
"Notice of Warning or Discipline" and indicates that
Mr. Chacon was informed that a repetition of such an offense
would subject him to a "more severe penalty."
On February 12, 1979, Mr. Chacon received a suspension
for 3 days. The suspension was contained on the same standard printed form as the prior warning. The heading of the
document was entitled "Notice of Warning or Discipline" with
the word "Discipline" underlined. In this suspension,
Mr. Chacon was disciplined for "excessive·'~peed on slow order
track (designated) all bench tracks and dumps." Chacon was
given a disciplinary lay-off from February 13, 1979, to
February 16, 1979, a total of 3 working days.
In addition to the warning and suspension involved in
this proceeding, Mr. Chacon had received a warning in December
1971, involving operation of his train, a warning on June 18,
1972, involving a failure to control his train and the
derailing of a caboose, a disciplinary 3-day lay-off on
September 26, 1973, for running a light, a 7-day disciplinary
lay-off on December 22, 1973, involving an operating violation, a warning on October 14, 1975, for failing to control
his train which resulted in a collision, a warning on
March 14, 1977, for being AWOL, a warning on August 28, 1977,
for not wearing a safety hat, a 3-day suspension on
December 27, 1977, for AWOL, a warning on July 30, 1978, for
an operating violation; to wit, "He is to maintain total control of his train at all times and avoid splitting a switch,"
a warning on January 8, 1979, for reading on the job and again
another warning on January 8, 1979, for not wearing a safety
hat and glasses. Whether that number of warnings is unusual
I am not able to find on this record since there are no comparative statistics or information. Likewise, I do not infer
that Chacon is a bad or unsatisfactory employee on the basis
of that history of warnings and suspensions all of which are
reflected in Exhibit R-3.
'];/

Incorrectly shown as "December" 21 (Tr. 249) in my bench decision.

1275

Respondent's records indicate that in 1977 there were no
warnings to employees for excessive speeds which resulted in
derailments. These records indicate that in 1978 there were
four warnings given to employees for excessive speeds which
resulted in derailments and that with respect to three of the
four the records do not indicate what the speed was or the
amount of damage. With respect to the fourth 1978 warning,
the speed was 20 miles per hour and the damage was described
as "Track destroyed under locomotive which was partially
buried in the ballast." For the first 9 months of 1978,
Respondent's records indicate there were three warnings for
excessive speeds which resulted in derailments, the speeds on
two of which were 15 and 20 miles per hour, respectively, and
the damage indicated being "Damage to track and locomotive"
and "Tore up seven or eight panels," respectively. With
respect to the third 1979 warning, no indication was given
with respect to speed or damage. Exhibit A-2, page 2. During
the years 1976, 1977, 1978, and 1979, only one of Respondent's
employees, aside from Johnny Chacon, was suspended from
employment without pay for operating a locomotive at an
excessive speed causing a derailment. Respondent's records
indicate that one M. F. Naccarati was suspended for 3 days
for violating the Code and that there was no record of the
speed or damage. For the same 4-year period, only five locomotive engineers were suspended for reasons other than excessive speed. Four of these involved running a red light. In
addition, three locomotive engineers received disciplinary
lay-offs for unexcused absences in 1978. I conclude that
warnings and suspensions generally are rarely given and that
in particular warnings and suspensions for excessive speed
infractions involving derailments are exceedingly rare and
have been during the 4-year period 1976 through 1979.
I find that in December 1978, two letters were sent by
Local 1668 to Robert Riley, District Manager, MSHA, Phoenix,
Arizona, which were signed by James Starr, Chairman, but
which were prepared by Mr. Chacon. Exhibits A-4 and A-5. I
find in that connection that Chacon prepared the letters for
Starr to sign for the reason that Starr's signature as chairman would carry more weight than Chacon's signature. I find,
based upon the testimony of Starr, that if Local 1668 members
had safety complaints they customarily would go to Chacon
who, in turn, would take the problem to the management of
Respondent and also that Chacon was the first union representative to take complaints to MSHA. I find that Chacon brought
the subject matter involved in the complaints to MSHA signed
by Starr, Exhibits A-4 and A-5, which were mailed to MSHA in
December, to the attention of management some 4 or 5 days
before writing those letters and that subsequently there was
a hearing or meeting in December at which L. B. Olson, the

1276

mine superintendent-, and Joseph Roche, general mine foreman,
attended as well as Chacon and Michael Cranford of the union.
At this meeting--and at the very beginning--Mr. Olson mentioned the letters sent to MSHA and indicated he did not
appreciate the union's sending such letters to MSHA. I find
that Mr. Olson's mood was angry or as described by Cranford,
"agitated" and that his tone was loud. Olson indicated that
the company should have been given more time to make the
corrections.
Turning now to the incidents which resulted in the issuance of the warning and the suspension I find that on
February 5, 3/ 1979, Chacon was operating his locomotive on
the bench proceeding towards the dump when his train was
derailed. Chacon was in the caboose which contained no
speedometer. Chacon had not been told by management either
in writing or orally what the maximum permissible speed was
that he should go. There was, however, a "slow order" in
effect and (I find) that Chacon was going no more than
10 miles per hour. I make this finding on the basis or the
following reasons: Various witnesses for the Respondent have
indicated that they can tell or should be able to tell how
fast a locomotive is going within 2 or 3 miles per hour; that
is, a locomotive engineer should be able to make such a judgment. On the other hand, Mr. Starr testified that he could
estimate his speed only within 5 to 7 miles per hour and that
it is difficult at speeds above 5 miles per hour to determine
exact speed. Mr. Chacon testified that he was going between
5 and 10 miles per hour and that he could tell he was not going 15 miles an hour based upon his experience. I conclude
that Mr. Chacon, being the operator of the locomotive at the
time, is in the best position to determine his speed. The
tape mechanism, in my judgment, is not sufficiently credible
based upon the testimony in this hearing for me to rely on
it. Were the speed-recording tape reliable, I would consider
it to be the best evidence and to have overwhelmed the
opinions and subjective judgment of the individuals. Tiie
testimony in this case with respect to speed has been alr
over the lot. I do not find it sufficiently accurate from
the standpoint of Respondent to credit it. On the basis of
the testimony in this case, I am inclined to credit the testimony of the individual who was operating the locomotive and
also the opinion of a locomotive engineer. I further find
for similar reasons that gauging damage--and surveying damage
done--is not particularly probative of the speed that a train
is traveling in a given instance. There is testimony in this

l/

Incorrectly shown as February "4",
Tr. 81, 134.

in

1277

my bench decision (Tr. 253).

See

record with respect to factors which could change that-including the weather, the conditions, the wetness, the rain,
and the like. The opinions given, likewise, are suspect for
the reason that gauging speed on the basis of damage is not
particularly susceptible to persuasive proof by the rendering
of a mere general opinion. There was really little corroboration beyond the expression of such general opinions in this
case. Certainly, these were not sufficient evidence to overwhelm the testimony of the person in the best position to
gauge the speed, which in this case is the operator himself.
I also find no reason to discredit in this case the testimony
of Mr. Chacon on this subject and on other subjects contained
in his testimony. The occurrence of derailments is very frequent and can occur from many, many causes. To attribute the
derailments to excessive speed in this instance would require
a higher quality of proof than that presented by Respondent.
The following morning, that is, February 6, 1979,
Kenneth A. Lines delivered a written warning to _Chacon saying,
"They told me to give you this." Chacon asked, "Who is they?"
to which Lines replied, "The Office." Chacon took this to
mean, and I find, that this meant Mr. Olson or Mr. Roche since
they were the only ones in the office who could impose disciplinary punishment. Aside from the written warning of
July 30, 1978, Chacon had received no warnings, oral or
written, for operating violations prior to the February 6,
1979, warning. I footnote that he did receive two warnings on
January 8, 1979, for reading on the job and for not wearing a
safety hat.
On February 12, 1979, Chacon was in the cab of the locomotive which was on the south side of the pit. The speedometer was indicating between 5 and 15 miles per hour.
Chacon believed he was going 10 miles per hour when the
derailment occurred. At this time, Chacon was not working on
his usual shift and was working for a different assistant
shift foreman, Mr. William D. Pounds. Following the derailment, Chacon and Pounds discussed the speed he was-going and
according to Chacon, agreed that Chacon had been going
between 10 and 12 miles per hour. At approximately 3:30 p.m.,
on February 12, 1979, Mr. Pounds drove up in a truck and
handed Chacon the written 3-day suspension indicating that
Chacon was being given the suspension because he had been
given a previous warning. Pounds and Chacon went to the call
board to determine if a 5-mile per hour designated speed
maximum had been established. While a "slow order" had been
posted, no excessive 5-mile per hour speed limit had been
set. Subsequently, when Chacon returned from the suspension,
Pounds asked Chacon if he enjoyed the time off, Chacon
replied, no, it was blankety blank (an epithet) to which

1278

Pounds replied that it had been up to him he would not have
given Chacon the suspension and that the suspension had come
from the office.
Chacon subsequently filed grievances with respect to
both the warning and suspension and was rejected on both
grievances by two levels of management, Olson and Bolles.
During the hearing of the grievances before Mr. Olson under
the grievance procedure provided in the labor contract,
Mr. Olson indicated that there had been "Lots of derailments"
and that "they had to start somewhere." Following the
derailment on February 12, 1979, on February 13, the locomotive involved received repairs on its speedometer.
I find that Respondent's management was aware of
Chacon's engagement in activities protected under the Act
and, in particular, his activities involved with the filing
of grievances in December, the forwarding of complaints to
MSHA reflected in Exhibits A-4 and A-5 and also with-the complaint to MSHA concerning the grievance which was signed by
some 72 employees and union members. In the grievance meeting at which Mr. Olson complained to Chacon about taking
safety complaints to MSHA before allowing the company to
correct the same, the expression of Mr. Olson establishes
that the company was aware of Chacon's activities. Furthermore, Chacon had created a change in the force with which
safety complaints were being handled by the local union.
There has been no contention of a lack of knowledge of this
and I find that the requisite element of awareness by the
mine operator of the alleged discriminatee's safety reporting
activities was clearly established in this record. Mr. Olson,
in his testimony, admitted that he told Chacon at the grievance meeting that he felt that any safety problem should go
to the company first by way of the-safety suggestion or
safety grievance procedure before being sent to MSHA.
Mr. Olson subsequently indicated that his remarks were
addressed to the group in general, not Mr. Chacon personally.
The record is clear that the primary management figure
engaged in the decision to issue the written warning on
February 6th and the 3-day suspension on February 12, 1979,
was Mr. Joseph Roche, the general mine foreman, who transferred to Respondent's Ajo operation in approximately July of
1979 and was not a witness in this proceeding. Mr. Lines
testified that on the morning of February 6, 1979, when he
went to Mr. Roche's office that Mr. Roche raised the subject
of the warning. Mr. Olson denies that he knew of the situation before the warning issued, although he did put on
Mr. Roche's desk on the morning the warning was issued two
reports which showed excess speed derailments and suggested

1279

that Mr. Roche look at them. Mr. Olson denies knowing that
Chacon was involved in either of the two derailments. With
respect to the suspension, the two management figures
involved were again Mr. Roche, and Mr. Pounds--who was not
Mr. Chacon's usual assistant shift foreman. From Mr. Pounds'
testimony, it is clear that the decision to suspend Chacon
was made by Mr. Roche. In analyzing the evidence with
respect to discriminatory motivation in a case such as this
which involves a corporate defendant with numerous personalities engaged in the channel of management's command, it is
necessary to pinpoint exactly which person actually made the
decision to levy the punitive action. In this action, I find
. that person was Mr. Ro~he. While I make no inference with
respect to the fact that Respondent did not call Mr. Roche, I
do note at this point that if there is evidence of discriminatory motivation of a circumstantial-nature or indirect
nature it would seem that·he would be the only person who
would be in a position as the top management executive
involved who could set the record straight, if such is
possible.
The question remains at this point whether there is evidence of discriminatory motivation since I have found that
there were protected activities engaged in by Chacon as
specified in section lOS(c)(l) of the Act, specifically, that
Mr. Chacon as a representative of miners--not just a miner-had filed and made complaints under the Act, including complaints notifying the operator of alleged dangers and safety
and health problems and also because Mr. Chacon, as a union
representative on behalf of other miners, made such reports
both to the mine operator and the government agency charged
with enforcing the Act.
In Munsey v. Morton, et al., 507 F.2d 1202 (D.C. Cir.
1979), the Circuit Court of Appeals established the elements
under the 1969 Act, of which the 1977 Act is an amendment,
necessary to constitute a prima facie case of discrimination.
Those elements were:
(1) That the miner had reported to the
Government or its authorized representative an
alleged violation or danger in a coal mine.
(2) That after such reporting occurred such
miner was discharged from his employment, and I
would footnote, or otherwise subjected to a
retaliatory action. And,
(3) That such discharge was motivated by
reason of such reporting and not for some other
reason.

1280

The 1977 Act, among other things, broadens the jurisdiction to include all mines not just coal mines and also
broadens the types of activities which are protected. The
objective of section 105(c) is the protection of mine safety
reporting. I eonclude that under the 1977 Act the general
elements of proof an Applicant must meet are that:
(1) The miner has engaged in the safety
reporting activities or any of them described in
and protected by Section 105(c)(l) of the Act.
(2) After such reporting occurred such miner
was the subject of retaliatory action by his
employer adversely effecting the conditions or
incidents of his employment and,
(3) That such(action)'was motivated in at
least significant part by reason of such protected
activities and not for some other reason.
In the instant case there is evidence, based upon
Mr. Olson's statement at the grievance meeting, that Respondent was unhappy with Chacon's taking a safety complaint to
MSHA. I have found that this was expressed in an angry tone.
In addition, there is evidence that at the time of the
February 12, 1979, derailment Mr. Olson came across
Mr. Pounds, who was Chacon's assistant shift foreman on that
particular day, at which time Mr. Pounds stated to Mr. Olson
these words: "Your boy done it again," or words to a similar
effect. By using the words "Your boy" in this conversation I
infer a prior knowledge or awareness on the part of Pounds
that Chacon was more than an ordinary locomotive engineer.
The words "your boy this" or "your boy did that" in the
abstract would normally carry two meanings. First, it could
mean an awareness on the part of the one uttering such a
phrase that the person referred to is a favorite of the
individual to whom the words were uttered. In the real_ world,
it can also mean a sarcasm and an inference that the person
referred to is an enemy of or otherwise stands in disfavor
with the person to whom such words are uttered. The context
of the conversation, the words uttered by Pounds to Olson,
was one laden with the problem which Chacon had caused, i.e.,
"Your boy done it again." This means he had done something
unfavorable again. By uttering such a phrase, Pounds understood that Olson would know who he meant even though he did
not mention Chacon's name. Olson said he knew who Pounds was
referring to because he had heard on the radio that there had
been a derailment, but that does not answer the question
• Pounds did not know that Olson knew that from being on
the radio. Pounds knew when he uttered the expression that

1281

Olson would know who he was talking about. Olson told Pounds
at this point that he should take it from there. We thus
have Olson's unhappiness with Chacon for filing safety complaints with MSHA, we have the Olson-Pounds conversation
which in and of itself means nothing, but which taken in context creates an inference of displeasure on the part of
management with Chacon.
Is there any further evidence of discriminatory motivation? It appears that Chacon was the first, or from Respondent's standpoint, the second employee ever suspended for an
excessive speed derailment. I find that the statistical evidence which I previously specified indicates that Chacon was
treated in a disparate manner. The general burden of establishing by a preponderance of the evidence a case of discrimination is on the Applicant. However, the burden of proof is
on Respondent as proponent of the rule that it urges in this
case, that is that Chacon was warned and suspended for operating a locomotive at excessive speeds causing derailment.
Thus, Respondent's argument that the Government has failed to
show that there were other derailments where excessive damage
was done and where the locomotive engineer was not punished
in retaliation for safety reporting activities in my judgment
has no merit if the Government has established otherwise a
prima facie case. I would conclude that the burden would
shift to Respondent to show that there were excessive speed
derailments and that the locomotive engineer did receive a
suspension. The Government has shown that such was not the
case clearly. The records furnished by Respondent in answering the interrogatories show no such suspension other than
the Naccarati incident which is not sufficiently documented,
in my judgment, to count. So, I conclude on the basis of the
statistical information that the Government has established
that Chacon was treated disparately.
Now then we turn to the timing of this treatment. The
treatment occurred within approximately 1-1/2 months-and
possibly less time since we do not apparently have an exact
date--(from) the grievance meeting where the Olson-Chacon
confrontation occurred. We have the first warning and the
suspension occurring in proximity to the expression of discontent by management's top man at the mine and such treatment is a first. I find that to be very significant. I find
that Mr. Lines' testimony to the effect that several days
after he had warned Mr. Chacon on February the 5th he similarly warned another locomotive engineer for an excessive
speed derailment to be actual evidence of bad faith in the
context of the facts of this record. Up to that point there
had been no such warnings and then a warning is given to
Chacon for the first time and then a warning follows to somebody else within 3 or 4 days and then after that there are no

1282

similar episodes. That smacks of action taken to bolster the
disciplinary action taken against Chacon. It smacks of pretext. It does not lend itself to being viewed as part of
action taken in accordance with the general pattern of disciplinary action on the part of Respondent's management over
a period of 1 year or (even of) several years.
Respondent's case, as I have previously indicated, is
exceedingly weak from the standpoint of justification for its
punitive actions, that is, its evidence as to the speed the
locomotive was traveling. The argument that it makes with
respect to being able to estimate (speed) by (damage) was too
general, in my opinion, to overcome the more reliable testimony of the other locomotive engineers who testified. There
is evidence that the speedometer bounces between 5 and
15 miles per hour that I find credible and I do accept that
evidence. That, in turn, makes the tape recording which was
offered by Respondent as Exhibit R-4 unreliable as evidence,
in my opinion. The Respondent sought to keep absolute control not only of the operating engineers while they were on
the job, but of the evidence, in my'opinion, by its handling
of the "slow order." If the Respondent wishes a forum or a
tribunal or a court to recognize that there is some maximum
speed involved in the "slow order," then it should print or
publish such a maximum speed. It should teach its engineers
what it is. It should spell it out on the call board. It
would then have the proof that it can come in and say, "Look
this is what it is," but to come into a hearing and express
an opinion, and there were different opinions even among
Respondent's witnesses apparently as to what it meant, would
seem to give it complete latitude to say anything it would
want in a tribunal. If it wants to set a maximum, it should
do it either by printing it or at least when a "slow order"
is put up to specify what the maximum speed is. The reliability of the speed recorder would still be a problem from
the standpoint of proof. So the affirmative defense that
Respondent raised, in my opinion, was not established by probative evidence that I can recognize.
Respondent has argued that at the grievance hearings
which were argued before management's personnel, Mr. Chacon
did not raise the question about what Mr. Olson had said and
what Mr. Pounds had stated. I do not find this unusual. In
the grievance proceeding, it is.for management to make these
determinations, not an independent, impartial forum. It
would not be unusual in my opinion for one charged by a party
to come in and (not) argue before that very party the points
that are actually adverse to the very party who is deciding
the outcome of his case. I do not find that a persuasive
point under those circumstances. Thus, I do not infer from

1283

the fact that Mr. Chacon had not previously raised those
points that such incidents did not happen or that this was
simply an afterthought on his part in this proceeding to
raise those arguments. Indeed, his prospects of succeeding
in the grievance area might well have been recognized by him
to be enhanced by not raising this point.
I note for the record that Mr. Roche who was not called
as a witness is employed at Ajo (Arizona) which is a distance
of approximately 300 miles from the site of this hearing.
I conclude that Applicant has established a prima facie
case by showing protected activities, the employer's knowledge
thereof, retaliatory disciplinary measures by Respondent and
inherent, of course, in the concept of retaliation the fact
that the warning and suspension were motivated in at least
significant party by reason,of such protected activities. I
find that the Respondent in this case did(not)establish,
because of failure of the quality of its proof, its justification for the warning and suspension of Chacon. I further
find that in view of the timing of this retaliatory action,
the obvious animosity at the top management level toward
Chacon for filing complaints with the Government, and the fact
that such punitive action constituted a different pattern of
disciplinary procedure than had been previously exhibited at
the Morenci Mine, that the justification set forth by Respondent for such action was a pretext. I find that the primary
reason for the suspension and warning of Chacon was his
leadership and his pronounced efforts in processing safety
complaints at the Morenci Mine in his role as Vice-Chairman
of Local 1668. In the very least I find that there is a
mixed motivation situation, that is, where the management has
some justifiable basis for punishing Chacon but where also
part of its motivation is retaliation because he is becoming
a pain in the neck and troublesome to their total control of
the safety programs at the Morenci Mine. It is well established in labor law that the mere existence of a valid ground
for discharge of an employee is no defense to an unfair labor
practice if such ground was a pretext. NLRB v. Yale Manufacturing Company, 356 F.2d 69 (1st Cir. 1969); ~ v. Ace Comb
Company, 342 F.2d 841 (8th Cir. 1965), and (it) is also well
established that the disciplining of an employee which is
motivated in part by activity protected by a remedial act is
unlawful. Socony Mobil Oil Company, Inc. v. NLRB, 357 F.2d
662 (2nd Cir. 1966).
-I reach the following decision or judgment in this case
and that is that the alleged discriminatee, johnny N. Chacon,
was indeed the subject of discrimination with respect to the

1284

warning and the suspension and that there is merit to the
application for review which was filed by the Government on
his behalf in this case.
I reach the following conclusions of law:
(1) The Federal Coal Mine Safety and Health
Act of 1977 is remedial. It should be construed
liberally·in order to carry out the Congressional
purpose of protecting and enhancing the health and
safety of coal miners.

•

(2) If one of the reasons for, or a significant part of the motivation for, a mine operator's
discharging or otherwise discriminating against a
miner is attributable to any of the specified
activities set forth in Section 105(c)(l) of the
Act by the miner, a violation of the Act occurs.
(3) Even though a valid basis for the discharge or punishment of a miner may exist, if, such
punishment or discharge is in significant part
motivated by the miner's protected activities under
Section 105(c)(l) of the Act the punishment or
discharge is unlawful.
(4) In violation of Section 105(c) of the Act
the Respondent discriminated against Johnny N.
Chacon by warning him on February 6th, 1979, and by
suspending him from employment for three days
(commencing'February 13th, 1979.
All other proposed Conclusions of Law and
Findings of Fact not expressly incorporated by me
in this decision are rejected.

*

*

*

*

*

*

*

It is ordered that within 30 days from the issuance of
my written decision which will issue hereafter and which will
incorporate the bench decision which I have j~st rendered in
this case aside from grammatical corrections Respondent pay
to the Applicant, in full reimbursement of the wages which he
lost during the 3-day suspension, his full pay for said period
including any overtime which he would have drawn had he been
employed on those 3 days together with statutory interest provided in the State of Arizona running on said amount from
February 15, 1979, to the date of payment.

1285

Respoildenf--i's f~rther ordered to expunge from the personnel records of Mr. Chacon and all other records the warning of February 5, 1979, and the 3-day disciplinary suspension
commencing February 13, 1979, and all references thereto.

*

*

*

*

*

*

*

I find, in addition, that Respondent has commited a violation of the Act.

*

*

*

*

*

*

*

The statute_requit"es a consideration of six criteria in
a penalty case. The usual penalty case, however, involves a
violation of specific safety or health standards and some of
the criteria are not relevant to a discrimination violation,
that is, a violation of section 105(c)(l). !!:_/
I find that this is a very large mine operator. It has
a moderate history of previous violations and, as counsel for
the Government indicates, it is on the low side of a moderate
history of previous violations. With respect to this history
of previous violations, I find that there is no record of any
similar violation having been committed by this Respondent.
In view of the size of Respondent, I find that it would have
the economic ability to pay any penalty which I would assess
in this case, up to the maximum, without endangering its
ability to continue in business.
The concept of negligence is one of the statutory
criteria which is not relevant in this case. The violation,
due to its nature, is found to be willful.
4/ Section llO(a) of the Act requires that, in addition to the remedies
provided in section 105(c), a penalty be assessed if the mine operator is
found to be in violation of section 105(c). The parties were notified by
my order of April 4, 1980, that the penalty aspect of this-matter would be
heard simultaneously with the discrimination aspect if a violation were
found. In its complaint in this proceeding the Secretary of Labor asked
that a penalty be assessed. The procedural regulations, 29 C.F.R.
§ 2700.25 through 29 C.F.R. § 2700.30, apply to violations of health and
safety standards determined after issuance of orders and citations during
inspections and investigations pursuant to section 104 of the Act. Such
regulations are the procedural implementations of sections 105(a) and (b)
of the Act. Such regulations do not appear to be applicable to discrimination proceedings arising under section 105(c) of the Act. To hold otherwise will result in piecemeal litigation and resultant inconvenience to
all parties, as well as needless expenditure of the time and resources of
the parties and the taxpayers.

1286

The·-S-tatt;t'ar-y -~~iterion relating to abatement in good
faith after the conditions or problem 1s discovered is again
not relevant.
The remaining statutory criterion is how serious the
violation is. ·There are different aspects of the gravity of
this violation. One is that it is very serious because the
discriminatee was the vanguard of the union's reporting procedure under ~he Act. And contrary to Mine Superintendent
Olson's belief--directly contrary to Mr. Olson's belief--this
is the whole purpose of this law which is passed by Congress
and which is applicable in every state of the union, not just
this area. The whole purpose of the law is to encourage
reporting. Conversely, there is an obligation on the part of
MSHA and the Government not to encourage frivolous or badfaith reporting. Indeed, that is counterproductive even to
the purpose of the law. If someone comes and calls wolf all
the time after a while nobody pays any attention to it. So
there are two aspects of this, but the purpose of this law
which I have found to be violated is to do the very thing
that the Respondent apparently disagrees with. There is an
absolute right of any miner, and particularly the union representative charged with processing safety complaints, to go
to MSHA.
I also would like to note with respect to Exhibit R-5,
which is the MSHA Surface Miner Training Program, that this
is applicable to miners, and granted that Mr. Chacon is a
miner he also wears an entirely different hat when he acts as
a union safety representative. I do not find this (Exhibit
R-5), particularly relevant in this proceeding and particularly I do not view it as much of a restriction which MSHA
would have put on any miner to go to the company first. I do
not read this training manual to require miners to go to the
company first. It states on the third page of the exhibit,
"you also have the right to call MSHA to ask for help in the
problem." That appears to me to be a collateral right, not
one that must be taken in sequence. Certainly, it ·is not a
restriction on the part of the union representative, in his
judgment of what to do, and I would certainly expect that the
attitude and the belief that there is some restriction on
that on the part of Respondent to be straightened out.

*

*

*

*

*

*

*

The second aspect is what effect the retaliatory action
which I have found in this case will be on the rights of
miners and on the rights of the union representative which is
expressly provided for in 105(c)(l). It is certainly--in the
context of this community and this is a small area where I

1287

would assume mo-st· o-f -the people work and where the union is
located--discouraging in my opinion for the union representative for the first time to be given a punishment after he has
become the spearhead of the safety-reporting activities of
the union and of the miners. Had Mr. Roche testified we may
have had a clearer understanding of the thinking of the
Respondent's management since he was the one who did make the
decision. There is little for me to find in the way of mitigation in terms of seriousness. I find this to be a very
serious violation in view of the geographical area, the timing, and the dampening effect it would have on safety reporting. The intent of Congress was that safety reporting was to
be encouraged since miners are out in the different ~reas of
the mine and in the best position to spot immediately hazardous conditions. The penalty will be raised on the basis of
gravity. On the other hand, I would find relatively comm~nd
able the history of previous violations and the fact that
this is apparently a first as far as discriminatory activity
is concerned by this Respondent. Those factors militate for
a lowering pf the penalty. I find a penalty of $2~500 is
appropriate and it is so assessed.
Respondent is ordered to pay the sum of $2,500 to the Secretary of Labor
within 30 days after the issuance of my written decision.
ORDER
Respondent, if it has not previously done so, is ORDERED to pay to the
Secretary of Labor the sum of $2,500 within 30 days of the issuance date of
this decision.
:j:/Hr ,7

~

~ . .J"!~_g;/ ~
~,,,,..,,, ... r!--

;w,cc.·'(l_d:! P

Michae l A. Lasher, Jr., Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, u.s. Department of
Labor, 450 Golden Gate Avenue Room 10404, San Francisco, CA 94102
(Certified Mail)
Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C., 363 North
First Avenue Phoenix, AZ 85003 (Certified Mail)

1288

FEDERAt--MINE--SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52oJ LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6225

8 0 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. LAKE 79-94
A/O No. 33-0~253-03001

Petitioner

Docket No. LAKE 79-100
A/O No. 33-01253-03002R

v.

ROSE COAL COMPANY,
Respondent

Rose No. 3 Mine

DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, for Petitioner;
Mr. James Rose, Rose Coal Company, Jackson, Ohio, for
Respondent.

Before:

Judge Edwin s. Bernstein

On April 8, 1980, I conducted hearings pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c.
~~·s

and 29 C.F.R.

§

§

801

2700.50 ~~·s and issued the following decisions

from the bench.
Docket No. LAKE 79-94
This is my bench decision in Docket No. LAKE 79-94.
The parties have stipulated that the mine in question, Rose No. 3 Mine,
was very small in size.

With regard to the history of prior violations, the

Solicitor stated that the history was moderately good.
there was a small number of prior violations.
moderately good.

1289

Mr. Rose stated that

I find that the history was

With regard to the alleged violations covered by No. 7-0003, the Solicitor contended that the Respondent failed to furnish a report of a periodic
survey of noise levels, and that that failure violated the health and safety
standards at 30 C.F.R. § 70.508(a).
Mr. Rose did not dispute the violation and did not deny that he violated
that standard.
I find that the gravity was slight.

In order for the violation to

endanger health, prolonged exposure to noise would be required.

I accept

Mr. Rose's testimony that in a previous survey, noise was detected to be
one-quarter of the allowable limit.
I find that the operator was negligent.
As to good faith abatement, the evidence was that the operator was slow
in abating the violation.
Considering all these factors, I assess a penalty of $45 for this
violation.
With regard to Citation Nos. 278782, 278783 and 278785,

the-~ecretary

of Labor contended that the operator violated the mandatory standard at
30 C.F.R. § 75.503.

That section reads:

"The operator of each coal mine

shall maintain in permissible condition all electric face equipment required
by Sections 75.500, 75.501, 75.504 to be permissible which is taken into
or used inby the last open crosscut of any such mine. 11

1290

With regard to Citation No. 278782, the Secretary of Labor charged that
the coal drill used in the 001 section had a trailing cable that was not
insulated on both sides.
With regard to Citaiion No. 278783, the Secretary of Labor charged that
the cutting machine in the 001 section had a trailing cable that was not
insulated on both sides.
With regard to Citation No. 278785, the Secretary of Labor charged that
the shuttle car used in the 001 section had a trailing cable that was not
insulated and had an opening in the plane flange joint at the headlight
resistance compartment in excess of .005 inches.
The operator did not dispute Mr. McNece's testimony that when, on
December 21, 1978, Mr. McNece inspected the equipment in the 001 section, he
found that insulation was worn from the side of the drill's trailing cable,
the shuttle car's trailing cable and the cutting machine's trailing cable,
and that with' respect to the shuttle car's headlight resistance compartment,
there was an opening in excess of .005 inches.

Therefore, I find that the

operator violated the permissible standard as alleged in all three citations.
I find that the operator was negligent even though Mr. Rose testified
that the cable had previously been painted with insulating paint.

There is

no indication as to when the insulation work had been done, and there was
no testimony as to when this cable had been painted.

A periodic inspection

should have detected the fact that the insulation on the cables was worn and

1291

that the opening wa.s exce·s~ive.

Mr. Rose testified that he made periodic

inspections, but he did not indicate when prior to December 21, 1978, he
inspected this equipment.
The gravity was moderate.

There were few employees in this mine, and

as conceded by Mr. McNece, this was a mine which had no history of being a
gassy mine.

Therefore, the chances of a methane explosion were slight.

However, the danger to a miner who happened to touch the bare cable would
have been great.
As indicated by the Secretary of Labor's witness and by the Solicitor,
the operator acted in good faith and rapidly corrected these violations.
A final factor which I considered is that there is no evidence of a fine
being proposed which would affect the operator's ability to continue in
business.
I therefore assess the following penalties:

I assess a penalty of $60

for the violation with respect to Citation No. 278782; a penalty of $60 for
the violation with respect to Citation No. 278783; and a penalty of $70 with
respect to the violation regarding Citation No. 278785.
The total penalties assessed for this case are $235.
Docket No. LAKE 79-100
My bench decision in Docket No. LAKE 79-100 is as follows:
The Petitioner ·in Citation No. 279802 has charged that Respondent and
its owner, James Rose, refused an authorized representative of the Secretary

1292

of Labor, specifically Jesse Petit, right of entry in Rose No. 3 Mine on
June 27, 1978.
Section 103(a) of the Federal Safety Mine Safety and Health Act of 1977
states in part:
For the purpose of making any inspection or investigation under this Act, the Secretary, or the Secretary of
Health, Education, and Welfare, with respect to fulfilling
his responsibilities under this Act, or any authorized
representative of the· Secretary or the Secretary of Health,
Education, and Welfare, shall have a right of entry to, upon,
or through any coal or other mine.
The testimony of the witnesses indicates that on June 27, 1978, at about
7:15 a.m., Mr. James Rose refused to permit Mr. Jesse Petit, an authorized
representative of the Secretary of Labor, to remain on his premises in order
to conduct a safety inspection of his coal mine.

This action constituted

a violation of Section 103(a) of the Act.
In deciding upon the penalty to be assessed, I have considered the six
factors set forth in Section llO(i) of the Act.
was a very small mine.
prior violations.

I find that Rose No. 3 Mine

It had a moderately good history in connection with

There was good faith abatement of this violation.

The assessment of this penalty will have no effect on the operator's
ability to remain in business since it has been undisputed that Mr. Rose,
the operator, is no longer in business.
As to gravity, I find the gravity is great.

The right of representa-

tives of the Secretary of Labor to inspect coal mines and other mines is
essential to the proper enforcement of the Federal Mine Safety and Health

1293

Act of 1977 and oth~~.s.!;_a~~tes and to the protection of the health and
safety of the workers in the mines.

It is essential that representatives

of the Secretary of Labor be permitted to inspect mines.

Refusing them

access could result in serious accidents as a result of lack of enforcement of the statute.
Similarly, there is no provision in the law permitting owners of
mines to decide which inspectors can enter upon their property and which
inspectors cannot.

Nor are mine operators permitted to select inspectors.

This would result in only those inspectors that are kind to the mine
operators being allowed to inspect, rather than other inspectors who may,
in the course of their jobs, have offended operators.
We can see what this would lead to.
of the purpose of the law.

It would result in a breakdown

Therefore, I find the gravity to be great.

With respect to the factor of negligence, there was undisputed testimony that on a previous occasion, Mr. Rose refused to permit inspectors
to enter his property.
However, there was one factor that I did consider in mitigation that
touches on the question of negligence, and that factor is-that Mr. Knight
has testified that he told Mr. Rose that he would make every effort not
to send Mr. Petit to Mr. Rose's property.

It is clear that Mr. Rose and

Mr. Petit had some bad feelings.

Mr. Knight told Mr. Rose that he would

try not to send Mr. Petit there.

Apparently, as indicated by the testi-

mony, Oll)June 27, 1978, Mr. Knight was on vacation.

Mr. Rose was unable

to reach Mr. Osborne, who was acting supervisor in Mr. Knight's place,

1294

when Mr. Rose tried to telephone on or about 7 a.m. on that day.

Mr. Rose,

therefore, felt that he had an understanding with Mr. Knight, that that
understanding was not being honored, and I think that chain of circumstances offers an explanation as to his conduct on that date, and is a
mitigating factor.

This reduces his element of fault in refusing Mr. Petit

entrance on that date.
Upon consideration of these factors, I assess a fine of $700 for this
violation.
That concludes my bench decision.
I hereby affirm these bench decisions.
ORDER
Respondent is ORDERED to pay $935 in penalties within 30 days of the
date of this Order.

µ.--:_

~

& .... ..;;zc-_,._.___

Edwin s. Bernstein
Administrative Law Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Mr. James Rose, Rose Coal Company, Rural Route 2, Post Office
Box 165A, Jackson, OH 45640 (Certified Mail)

1295

FEDERAL MINE
___ , SAFETY
- -- . AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

s o MAY 1980
Contest of Order

BISHOP COAL COMPANY,
Contestant

Docket No. HOPE 79-241

v.

Order No. 254429
January' 2 9, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADIUNISTRATION (MSHA),
Respondent

Bishop No. 33-37 Mine

and
UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Karl T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Contestant;
Leo J. McGinn, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for
Respondent;
Joyce A. Hanula, Esq., United Mine Workers of America,
Washington, D.C., for Respondent.

Before:

Judge Stewart

Bishop Coal Company filed a timely contest of Order No. 254429, pursuant
to the provisions of section 105(d) of the Federal Mine Safety and Health
Act of 1977 (hereinafter, the Act). MSHA and the United Mine Worker.s of
America (UMWA) subsequently filed answers denying the allega-tions set forth
in the contest of order and asked that the proceeding be dismissed. Subsequent to the hearing in this matter, posthearing briefs were filed by MSHA,
the UUWA, and the Contestant. Proposed findings of facts and conclusions of
law which are inconsistent with this decision are rejected.
A citation issued pursuant to section 104(a) of the Act alleged a violation of section 103(f) of the Act and described the pertinent condition
or practice as follows: "Due to severe weather conditions, this inspector
was late arriving at the mine (8:10 a.m.), January 29, 1979. The operator
refused to notify the representative of the miners who had already entered
the mine."

1296

In an order of withdrawal issued pursuant to section 104(b) 1/ of the
Act, the inspes~oi:_-~tta.t.ecLthat "[n]o effort was made to abate this citation."
The primary issues presented are (a) whether a representative of miners
was afforded an opportunity to accompany an inspector during an inspection
as required by section 103(f) 2/ of the Act and (b) whether the inspector
exercised his authority reasonably in the issuance of 104(b) Order
No. 254429.
On January 29, 1979, Federal coal mine inspector Tommy F. Robbins,
accompanied by trainee inspector William H. Uhl, arrived at the Bishop Coal
Company's No. 33-37 mining complex to continue a regular health and safety
inspection of the No. 33 Mine. Since January 1, 1979, Inspector Robbins
had spent approximately 10 days at the No. 33 Mine conducting the inspecti.on. The inspectors did not arrive at the mine until about 8:10 a.m.,
approximately 10 minutes after the miners on the shift had proceeded
underground.
Inspector Robbins asked Arnold Shrader, company safety inspector, to
notify a union representative that they were about to continue the underground inspection of the No. 33 Mine. Mr. Shrader went to the office of
Mr. Camp, superintendent at the No. 33 Mine, where they called the portal
office and found that the men had already gone underground. Mr. Shrader
returned to the office at the respirable dust room and told Inspector
Robbins that the men had gone underground and he did not have the authority to call anyone out of the mine to go with him. The travel time

1/

Section 104(b) of the Act reads as follows:
"If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described
in a citation issued pursuant to subsection 104(a) has not been totally
abated within the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the abatement should
not be further extended, he shall determine the extent of the area affected
by the violation and shall promptly issue an order requiring the operator
of such mine or his agent to immediately cause all persons, except those
persons referred to in subsection (c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized r~presentative of
the Secretary determines that such violation has been abated."
2/ Section 103(f) of the Act in pertinent part reads as follows:
"Subject to regulations issued by the Secretary, a representative
of the operator and representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his authorized representative
during the physical inspection of any coal or other mine made pursuant
to the provisions of subsection [103(a)] for the purpose of aiding such
inspection and to participate in pre- or post-inspection conferences held
at the mine."

1297

between the port~l and working section was approximately 30 minutes. At
approximately 8 :·CZ.-7 a-•m~·, --ute- inspector informed Mr. Shrader that a citation
would be issued and that it must be abated by 8:45 a.m.
Mr. Camp was then told by Mr. Shrader that the inspector had issued
the citation and was considering the issuance of an order. Mr. Camp proceeded to the office where he was told in a conversation with Inspector
Robbins that the time set for abatement was 15 minutes and that an order
would be issued if abatement was not achieved within that time. When asked
about the terms of the order, the inspector stated that the order would not
result in the closur~ of any mine areas.
During this time, inspector Eugene Mounts and a miner representative,
Mr. Armond Smith, were present in the mine offic~. These two were preparing
to conduct an inspection of the No. 34 Mine. Mr. Camp told Inspector Robbins
that he was notifying Mr. Smith of the inspection of No. 33 Hine at that time.
He then informed Mr. Smith that an inspection of the No. 33 Hine was to be
undertaken. Under the mistaken belief that by doing so he had complied with
the requirements of section 103(f) of the Act, Mr. Camp argued with Inspector
Robbins, telling him that he did not have a right to issue the citation
because "the union had been notified."
Most of the miners on the list of walk around representatives m1WA Local
Union 6025, dated December 17, 1978, worked at Mine No. 34. Mr. Harold Bland
was the only person on the walk-around list who worked in the No. 33 Mine on
the day shift. In his testimony, Mr. Camp stated that "[H]e would have had
to notify a man in No. 33 if Mr. Smith would have asked him." Mr. Camp also
testified that as he read the law, "[e]very member of Local Union 6025 is a
representative of the United Mine Workers at Bishop Coal Company" and that if
he "[W]ould have talked to any of those 721 men [so far as he was concerned]
that is notifying the United Mine Workers * * *·"
Effect of Notification of Representative of Miners Already Committed to
Accompany Another Inspector on Inspection of Different Mine
Contestant's position is that it notified one of the miners' representatives, Mr. Armond Smith, of the inspection to be conducted at the No. 33 Mine
and that this complied with the requirements of section 103(f) of this Act,
even though Mr. Smith had already been assigned to accompany another
inspector on an inspection of the No. 34 Mine.
Section 103(f) of the Act requires that a representative of miners shall
be given an opportunity to accompany an inspector during an inspection pursuant to section 103(a) of the Act. In order for the opportunity to be
afforded, a representative must, of course, be notified of the impending
inspection. Although notification of the ir:1pendin8 inspection raust be given
in order to allow the requisite opportunity to accompany; notification alone
may not meet the requirements of the Act.

1298

Mr. Smith was already committed to join in an inspection of No. 34 Mine.
Neither the notif:i.cati-~n--of Mr. Smith nor Mr. Smith's failure to specifically
request that someone else be afforded the opportunity to accompany one of
the inspectors serves as a valid excuse for Respondent's failure to provide a
representative when requested by Inspector Robbins. From the record, it is
clear that Contestant did not give a representative authorized by the miners
an opportunity to accompany the inspector. Hr. Harold Bland, a representative
of miners who was able to accofilpany the inspector, was made available only
after a citation had been issued. This failure to notify and, hence, to
provide the requisite opportunity to accompany, was in violation of section
103(f) of the Act.·
Time Of Inspector's Arrival
As a result of delays caused by adverse weather conditions and difficulty in purchasing gasoline with a Government credit card, the inspectors
did not arrive at the mine until about 8:10 a.m., approximately 10 minutes
after the miners on the shift had proceeded underground. The normal starting
time for the day shift was 8 a.m.; however on some mornings there were delays,
and starting time might be as late as 8:10. It was sometime between 8:25 and
8:30 when Mr. Shrader went to Mr. Camp's office and said that Mr. Robbins
and Mr. Uhl were in the dust room and had notified him that they wanted
to continue their inspection of the No. 33 Mine. The mine foreman has a
small office next to the drift mouth located about 500 feet from the mine
office at the dust room. When Mr. Camp called the foreman to see if there
was any one outside to accompany the inspectors as a miner representative,
the mine foreman told Mr. Camp that all of the mantrips had gone and that
there was no one outside on the hill available.
Although the inspector had arrived on previous days at 7:30 a.m., there
is no requirement in the Act or in the regulations that he appear at the mine
at any specific time. Section 103(a) of the Act.is explicit in requiring
that no advance notice of an inspection shall be provided to any person when
the inspection is for the purpose of determining whether there. is compliance
with the mandatory health or safety standards. Therefore, there may be occasions when an inspector will begin an unannounced inspection at a time after
the miners have gone underground at the beginning of a shift. While there
may be a saving in time benefiting both MSHA and the operator if the inspector arrives early enough to allow him to go underground with the miners'
representative, there is no requirement that he do so. The late arrival
of the inspectors did not provide a valid excuse for the failure of the
operator to afford representatives an opportunity to accompany the inspectors.
Requirement to Notify Representatives of Miners Who Had Already Gone
Underground
The operator was verbally notified that a citation would be issued at
8:27 a.m. The order of withdrawal was issued orally at 8:45 a.m. The
citation was issued in writing shortly before 9:00 a.m. The order was
issued in writing at approximately 9:00 a.m.

1299

After arrival at the mine at about 8:10 a.m., Inspector Robbins asked
that a miner's repr-esentai:-ive be notified. Mr. Schrader misunderstood the
inspector's request and believing that he had requested that a representative be brought back to the surface, went to the office of Mr. Camp.
Mr. Camp was also under the erroneous impression that the inspector had
demanded that a representative of miners be brought out of the mine when
he proceeded to the respirable dust office and spoke with Inspector Robbins.
In asking that a miner's representative be notified in order that he
could accompany the inspectors, Mr. Robbins did not use the explicit words
"out to the surface.·" Mr. Schrader took the inspector's words to mean "to
bring them out of the mine, because they were already underground". The
initial misunderstanding on the part of Mr. Shrader and Mr. Camp should have
been corrected by the subsequent events. The inspector allowed the operator
15 minutes to notify the representative by telephone. This should not have
been misconstrued as a requirement to bring him to the surface which would
have taken 30 minutes. On cross-examination, Mr. Camp testified that realistically a 15-minute period would not have been sufficient time to bring a man
to the surface.
To travel to the inspection site, the inspector would pass by the
section where the miners' representative was working and he would have
been satisfied to have the representative brought out to meet him at
the main line switch. Arrangements had been made on previous occasions
to have the miners' representative meet the inspector underground. The
inspector testified that, had the representative been notified, he would
have been willing to meet him on route to the section which was to be
inspected. As an alternative, the representative could have met the
inspection party at the section to be inspected.
While it had been company policy to take an inspector to the section
where the miners' representative was located or pick up the representative
on the way to the inspection site, the operator on this occasion refused
to take the required initial step in notifying the miners' representative
in the belief that it had fulfilled the requirements of the Act by notifying Mr. Armond Smith. It was not until after the refusal to notify the
miner's representative that the operator decided to allow·him to meet the
inspector underground on this occasion. Mr. Camp had been keeping his
superior, Mr. Trump, informed as to the course of events. - When he talked
this situation over with Mr. Trump, they decided, "[W]e'll even go beyond
what we've done. We will offer the opportunity for him to meet the man
at the panel switch on the section, or wherever he wants to go."
Mr. Camp testified that he then went and told Inspector Robbins that
he would bring "that man down there." Mr. Bland, however, was not notified
until after the order was issued. The circumstances were such that they
did not dispel Mr. Robbins' understanding that the operator was refusing
to call on the telephone and notify a representative.

1300

The writ.t~n-~~d~r of withdrawal was handed to Mr. Camp at approximately
9:02 a.m., at which time he went to the telephone and told the mine foreman
that the order of withdrawal had been issued and that he should call the
section foreman and get Mr. Bland out of the mine. Mr. Camp testified
that he did not explain to his superior that the citation alleged only a
failure to notify because he did not have a copy of the citation at the
·time the order was issued. It was normal practice for orders and citations
to be issued verbally and then written out at a later time. While he did
not have a copy at the time of the oral order, the record clearly establishes
that at the time Mr. Camp called the mine foreman at 9:02 a.m., he had
both the citation and the order.
Not knowing that Mr. Bland had been summoned, the inspectors changed
clothes in preparation for going underground without a representative. They
were delayed for a short while because of unavailability of transportation.
When Mr. Bland unexpectedly appeared on the surface at approximately 9:50 a.m.,
Inspector Robbins terminated the order.
The fact that Mr. Bland was brought to the surface by the operator
does not mean that the inspector required him to be.brought from the mine.
It is obvious that Mr. Bland was not brought from the mine on the basis
of what the written citation and the order stated. Before Mr. Camp
made his call to get Mr. Bland out of the mine, he had been afforded the
opportunity to read the specific allegation on the face of the citation
and he had, in fact, read the citation. This allegation simply stated that
the operator had refused to notify the miners' representative. Even though
the operator might have previously misunderstood the nature of the inspector's oral citation, it most certainly should have questioned such an obvious
discrepancy before bringing Mr. Bland to the surface.
Since a requirement by the inspector that the miners' representative be
brought to the surface is not established by the record, the issue as to the
reasonableness of such a requirement by an inspector is not presented. It
should be noted, however, that Section 103(a) of the Act provides for unannounced inspections and Section 103(f) of the Act requires ·that a miner's
representative be given an opportunity to accompany the inspector to participate in pre- or post-inspection conferences as well as to aid in the
inspection.

ORDER OF WITHDRAWAL
Section 104(b) of the Act requires that an inspector shall issue an
order under that subsection when he finds that a violation described in a
citation issued pursuant to section 104(a) has'not been totally abated
within the time specified and that the time for abatement should not be
further extended. As noted above, mine management did not abate the violation within the 15 minutes set by the inspector. The test as to whether a

1301

104(b) order was properly issued was enunciated by the Board of Mine Operations Appeals iR-..Uni-ted -States Steel Corporation, 7 IBMA 109, 116 (1976). 1_/
It was stated therein that "the inspector's determination to issue a section
104(b) order must be based on 'facts confronting the inspector at the time
he issued the subject withdrawal order regarding whether an additional
abatement period should be allowed."' The critical question is whether the
inspector acted reasonably in failing to extend the time for abatement and
in issuing the subject order.
After arriving late, the inspector found the operator unwilling to call
an available representative of the miners on the telephone. Such a call
would have been necessary in order to arrange a meeting at the switch along
the inspector's way to the inspection site even if Mr. Camp and Mr. Trump
had agreed that Mr. Bland could have met the inspectors there prior to the
oral citation. The failure of the operator to take the initial requisite
step in calling and notifying the representative was a failure to afford
an opportunity to accompany.
The abatement effort requested by the inspector and the time set by
the inspector for abatement were reasonable. It is accepted here that the
inspector did not demand that a representative be brought out of a mine, but
only that the representative be notified. It is probable that Mr. Shrader
misunderstood Inspector Robbin's request and relayed an incorrect message
to Mr. Camp, thereby setting the chain of events in motion.

1/

The Board was addressing section 104(b) of the Federal Coal Mine Health
and Safety Act of 1969, 30 u.s.c. § 801 et~· (1970), which reads as
follows:
"(b) Except as provided in subsection (i) of this section, if, upon
any inspection of a coal mine, an authorized representative of the Secretary
finds that there has been a violation of any mandatory health or safety standard but the violation has not created an imminent danger, he shall issue
a notice to the operator or his agent fixing a reasonable time for the abatement of the violation. If, upon the expiration of the period of time as
originally fixed or subsequently extended, an authorized representative of
the Secretary finds that the violation has not been totally abated, and if he
also finds that the period of time should not be further extended, he shall
find the extent of the area affected by the violation and shall promptly
issue an order requiring the operator of such mine or his -agent to cause
immediately all persons, except those referred to in subsection (d) of this
section, to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that the violation has been abated."
This section of the 1969 Act and section 104(b) of the 1977 Act are
substantially similiar with respect to the requirements each imposes on an
inspector confronted with an operator's failure to abate a violation within
the time specified.

1302

The test~wo~_of-Pe-t~tioner's witnesses to the effect that Inspector
Robbins did not demand that a representative be brought out of the mine is
supported by the allegation contained in the citation, as well as by the
length of time set by the inspector for abatement. In his description of
the condition, the inspector stated that the operator failed to notify a
representative. He did not allege a failure on the part of the operator
to bring a miner out of the mine. Moreover, although the inspector was
aware that it took 30 minutes each way to travel between the portal and
working section, he provided only 15 minutes for the abatement of the
citation. There is no evidence that the inspector set this time period
in bad faith. Given the shortness of the period for abatement, the
inspector could not have intended that management bring a miner to the
surface.
·The inspector testified that, had the representative been notified,
he would have been willing to meet the representative on the way to the
section which was to be inspected. As an alternative, the representative
could have met the inspection party at the section to be inspected. The
15-minute period set by the inspector was an adequate length of time in
which to notify fhe representative and afford him the opportunity to
rendezvous with the inspector underground.
No purpose would have been served in this instance by an extension of
time in which to achieve abatement. Mine management made no effort to
achieve abatement within the original 15-minute period. Although management
in the past had been generally cooperative in providing miner representatives with the opportunity to accompany inspectors, the inspector was
given no reason to believe that an extension of time was necessary in this
instance or that management would attempt abatement if an extension of
time was granted. In view of the facts with which he was confronted, the
inspector reasonably exercised his authority. Not only was an extension
of time specified for abatement unnecessary, but it was not requested.
Order No. 254429 was properly issued.
ORDER
It is ORDERED that the above-captioned contest of order is hereby
DISMISSED.

Forrest E. Stewart
Administrative Law Judge

1303

Distribution:
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
James Swain, Esq., Office of the Solicitor, U.S Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

'
Joyce A. Hanula,. Legal Assistant, UMWA, 900 15th Street, NW, Washington,
DC 20005 (Certified Mail)

1304

FEDE~AL -MINE-SAFETY AND HEALTH REVIEW COMMISSION
. 333 \'J. COLf /\X AVENUE
DENVER, co LrmAnO 80204

JUN 1980

3

~~~~~~~~~·~~~~~~~~~-)

SECRETARY OF LABOR, MINE S!\FETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,
v.

ASARCO, INCORPORATED,
Respondent.

)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-274-M
A/O CONTROL NO. 02-00855-05007
MINE:

HISSION MILL

·--··-·-----)

DECISION
Appearances:
Judith G. Vogel, Esq., Office of Daniel W. Teehan, Regional Solicitor,
United Stat~·s Department of Labor, 450 Golden Gate Avenue, Box 36017,
Room l.1071 Federal Building, San Francisco, California 94102
William O. Hart, Esq., ASARCO, Incorporated, 120 Broadway, Room 3719,
New York, New York 10005
Before:

Judge John J. Morris
STATEMENT OF THE CASE

In this case Petitioner seeks an order affirming a citation and assessing
a civil penalty therefor.

The issues arise under the Federal Mine Safety and

Health Act, 30 U.S.C. § 801 ~seq. (as amended, 1977),
CITATION NO. 378557
It is undisputed that a violation of 30 CFR 55.16-6 l/ occurred at ASARCO's
mine on February 27, 1979.

The parties also agree that an employee of Peco Steel,

an independent contractor, was responsible for the violation (Stipulated Facts).
ISSUE
The single issue is whether ASARCO can be held liable for the violation herein.

})

30 CFR 55.16-6. Mandatory. Valves on compressed gas cylinders shall be
protected by covers when being transported or stored, and by a safe location
when the cylinders are in use.

1305

· CONTENTIONS
ASARCO contends it cannot be held responsible for the actions of an
independent contractor.

Further, ASARCO argues that Secretary v. Old Ben Coal

Company VINC 79-119-P (October 1979) is not applicable to this case.
DISCUSSION
For the reasons hereafter stated, the citation and penalty are affirmed.
ASARCO's initial argument seeks to reargue the merits of Old Ben.
writer lacks the authority to overturn Commission precedent.

The

Cf Duval Corporation,

WEST 79-194-M (March 1980).
ASARCO's second contention is that the citation should be vacated in view
of the. failure of the Secretary to have implemented rules to proceed against
independent contractors on mine property at the time the citation was issued.
ASARCO points out that the citation in Old Ben was issued a mere 33 days after the
Act became effective; the citation here was issued February 27, 1979, some 11 months
after the Act became effective.

Respondent contends that this distinction negates

the applicability of Old Ben to this case.
The difficulty with ASARCO's position is that in Old Ben the Commission in
effect approved the action of the Secretary in filing his proposed regulations on
August 14, 1979.

Any charge sounding in the nature of laches against the

Secretary could not apply to a citation issued before August 1979.

Specifically.,

it could not apply to this citation issued in February 1979.
The ruling of the Commission in Old Ben is clear.
If the Secretary unduly prolongs a policy that prohibits
direct enforcement of the Act against contractors, he will
be disregarding the intent of Congress.
The time appears to be approaching when the Old Ben doctrine will eviscerate
rather than insulate the Secretary.
For the foregoing reasons, I conclude that Citation 378557 and the proposed

1306

penalty 2/ should be affirmed.
CITAXIONS NOT LITIGATED
A motion to dismiss the proposed penalty assessments for Citation
Nos. 378543, 378547, 378549, 378551, and 378555 was filed by Petitioner on
November 2, 1979.

Good cause having been shown, such motion is granted.

On the uncontroverted record and based on the conclusions stated herein,
I enter the following:
ORDER

1.

Citation 378557 and the proposed penalty therefor are AFFIRMED.

2.

Citations 378543, 378547, 378549, 378551, 378555 and all proposed

penalties therefor are VACATED.

Judge
Distribution:
Judith G. Vogel, Esq., Office of Daniel W. Teehan, Regional Solicitor,
United States Department of Labor, 450 Golden Gate Avenue, Box 36017,
Room 11071 Federal Bu8ilding, San Francisco, California 94102
Bui
William 0. Hart, Esq., ASARCO, Incorporated, 120 Broadway, Room 3719,
New York, New York 10005
2/

Post trial briefs of the parties.

1307

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 3, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. LAKE 79-231-M
A.C. No. 20-01047-05003 W

v.
SUPERIOR SAND AND GRAVEL, INC.,
Respondent

Docket No. LAKE 79-232-M
A.C. No. 20-01047-05004
Docket No. LAKE 79-297-M
A.C. No. 20-01047-05005 A

and
PATRICK K. THORNTON,

Superior Wash Plant
Respondent
DECISION

Appearances:

J. Philip Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Petitioner, Secretary of Labor;
Norman McLean, Esq., McLean and McCarthy, Houghton,
Michigan, for Respondents, Superior Sand and Gravel,
Inc •.and Patrick K. Thornton.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

The petition charges that on September 8, 1978, an employee of
Superior Sand ~nd Gravel, Inc., operating a portable crusher was
exposed to airborne contaminants exceeding the threshold limit values
(TLV) adopted by the American Conference of Governmental Industrial
Hygienists (ACGIH) in violation of the mandatory standard in
30 C.F.R. § 56.5-l(a). A citation for the alleged violation was
served upon Patrick Thornton, the company's vice president, on
October 20, 1978. Seven days were allowed for abatement, which could
be accomplished by eliminating the dust hazard or by requiring the
crusher operator to wear an approved respirator. The inspector
returned on October 30, 1978, and found Respondent had not abated the
condition. A withdrawal order was issued pursuant to section 104(b)
of the Act. The inspector was informed by Mr. Thornton that neither

1308

the citHti.~:i nor the order would be honored and the company continued
to operate until late November when it closed for the winter. The
order was not terminated until June 12, 1979.
The Respondent operator contends that it was selectively and discriminatorily singled out for inspections under the Act. It complains that it was denied an opportunity to prove this, since its
request for product.ion of all records of inspections of sand and
gravel operations within the jurisdiction of MSHA's Marquette,
Michigan, Field Office, including all citations and notes prepared
by the inspector who issued the present citation, Bruce Haataja was
rejected. Respondent's counsel moved at the commencement of the
hearing for a "mistrial" because he did not receive the notice of
·hearing which was issued by me on February 20, 1980, and was not
aware of the hearing date until March 17, 1980, when he discussed
the case with counsel for Petitioner, and because ("more importantly") of my denial of his request for a subpoena requiring the
production of all records of all inspections made of sand and gravel
mining operations within the geographic jurisdiction of the
Marquette, Michigan MSHA office on or before September 8, 1978, and
all field notes of Inspector Bruce E. Haataja pertaining to inspections of sand and gravel operations while he was an employee of MSHA
on or before September 8, 1978. Counsel for Respondents further
moved for continuance because of the failure of Petitioner to supply
the field notes of Inspector Haataja related to Respondent's mine
in accordance with my order of January 31, 1980. Although Petitioner's counsel stated that copies of the notes were sent to Respondent's counsel in February, 1980, they were apparently not received.
Respondent's counsel received a copy on April 8, 1980, and was shown
the originals on the day of hearing.
Pursuant to the aforementioned notice, the hearing was held at
Houghton, Michigan, on April 9, 1980. Bruce Haataja, a Federal mine
inspector; Diane Brayden, a health specialist at MSHA's Duluth,
Minnesota Office; Kathleen Hazen, lead chemist at MSHA's office in
Denver, Colorado; Aurel Goodwin, Chief of the Health Division, Metal/
Nonmetal Mines, at MSHA' s Arlington, Virginia, Office; and- William
Carlson, head of MSHA's field office in Marquette, Michigan, testified
for Petitioner. Thomas Thornton, Superior's president; Patrick
Thornton, the vice president and individual Respondent herein; and
Matthew and Gerald Tchida, two of their employees testified for
Respondent~·
On motion by Respondent Patrick K. Thornton, the cases
were consoli"dated for the purposes of hearing and decision. The
parties have.waived their rights to file written proposed findings
of fact and c·onclusions of law and are agreeable to having the case
decided on the basis of the record and transcript of the hearing.
ISSUES
L
Was Respondent operator in violation of 30 C.F.R. § 56.5-l(a)
on September 8, 1978?

1309

2. Did Respondent operator fail to abate the alleged violation
within Lhe time set in the citation?
3. Did the Respondent operator fail to obey the withdrawal order
issued on October 30, 1978?
4. Did Respndent Patrick K. Thornton knowingly authorize, order
or carry out any violation of Respondent Superior Sand & Gravel, Inc.,
as the agent of the corporation?
5. If the violations alleged occurred, what is the appropriate
penalty for each?
6. Were Respondents prejudiced by denial of their reque~t for
discovery into records relating to the enforcement activities of
MSHA's office in Marquette, Michigan?
7. Were the Respondents prejudiced by denial of a continuance
of the hearing?
FINDINGS OF FACT
1. At all times relevant to these proceedings, Superior Sand
and Gravel, Inc., was the corporate operator of a sand and gravel
pit in Houghton County, Michigan; Patrick K. Thorton was its vice
president.
2~
The operator's business produces between 1,400 and
1,500 tons of sand and gravel per shift. It operates one shift per
day for approximately 6 months of the year. It is a relatively
small operator.

3. There is no evidence that penalties assessed herein will
have any effect on the operator's ability to remain in business, and
therefore, I find that they will not.
4. On September 8, 1978, the company's crusher operator was
exposed to levels of respirable silica dust in excess of the limits
prescribed in 30 C.F.R. § 56.5-l(a).
5. The operator failed to abate the cited violation within the
time set for abatement, because of the refusal of Patrick Thornton to
comply.
6. The operator ignored a withdrawal order issued on
October 30, 1978, because of Patrick Thorton's refusal to comply.
7. No prejudice resulted to Respondents' case from denial of
motions to produce or subpoena all records of MSHA's Marquette
Field Office relating to sand and gravel enforcement activities.
8. Respondents were not prejudiced by denial of a continuance
at the hearing.

1310

DISCUSSION
In its answer, Superior Sand and Gravel, Inc., denied that
its crusher operator was on September 8, 1978, exposed to levels
of respirable dust in excess of those prescribed in 30 C.F.R.
§ 56.5-l(a). At the hearing, Respondent had the opportunity to
examine all persons involved in determining the violation. Exhaustive testimony was. assembled regarding the preinspection calibration of the testing devices, controls used during testing, and
weighing, measurement and analysis of the samples obtained. The
credentials of the witnesses for Petitioner were not challenged
and Respondent never questioned the accuracy of their testimony.
The evidence is clear that the crusher operator was exposed to
respirable dust in excess of the limits set out in the mandatory
standard, and I so find.
Superior Sand and Gravel, Inc., is a company of moderate size
with an average history of prior violations. The standard violated
seeks to minimize the risk of a multitude of ailment"s. caused by
inhaling respirable dust. Silica dust was the respirable dust
found by laboratory analysis in this case. Exposure to silica dust
can cause silicosis. This is a serious disease. However, under the
circumstances of this case, the probability of one of the operator's
employees contracting it is slight. The operator's negligence is
mitigated by the fact that, under all the circumstances, it had no
reason to believe, prior to the citation, that a violation existed.
However, as will be discussed later, there was a total absence of
good faith on the operator's part in abating the violations.
Respondents failed to abate the violation within the 7-day
period provided in the citation. A withdrawal order was therefore
issued. This, too, was ignored. Bruce Haataja, the Federal inspector, testified that he explained the violation to Patrick Thornton,
Superior's vice president, along with the consequences of failure
to abate. He stated that Mr. Thornton was furnished copies of the
regulation and ACGIH standards upon which it is based. He also
stated that he explained the alternative measures available to the
operator to bring itself into compliance. Mr. Thornton denied this
and claimed that when he called William Carlson at MSHA's Marquette,
Office, he received no help in understanding the violation. This
asserted lack of an adequate explanation of the violation is the
prime reason why Mr. Thornton and his company refused to abate the
violation. Mr. Carlson testified that he explained the violation
to Mr. Thornton. It was not shown to their satisfaction, say the
Respondents, that the violation posed a risk to their employees.
They point to the fact that neither they nor any of Petitioner's
witnesses are aware of a single case of silicosis ever occurring
in the region. I accept as accurate the testimony concerning these
conversations of Inspector Haataja and Mr. Carlson.

1311

Respondents misconceive the nature and purposes of the Act.
Its aim is to prevent health and safety hazards. A "body count" or
some similar sqowing of present adverse effects as a prerequisite
to enforcement would undermine the legislative purpose. Cf. Society
of the Plastics Industry v. OSHA, 509 F.2d 1301, 1308 (2n~Cir. ~975),
cert. denied, 421 U.S. 992 (1975).
Respondents chose to proceed in a manner outside and contrary to
the law. No lawful excuse has been offered for the operator's
failure to fulfill its plain duty under section 2(g) of the Act to
comply with the order. I find the failure to comply with the terms
of the citation and the order to be a very serious violation.
Respondent, Patrick Thornton, acting as the agent of the corporate respondent, knowingly refused to comply with that order. He
therefore is liable under section llO(c) of the Act for a violation
of section 104(b). I consider the refusal to comply with a closure
order a very serious violation. It was intentional and there was no
attempt to abate the violation.
Respondents urge in their defense that the operator was singled
out for enforcement of the Act by the Marquette Off ice of MSHA, in
violation of its right to due process. Respondents do not claim any
bias or enmity on the part of MSHA personnel. Rather, the gist of
this defense is that other operators were probably violating the law
but were not being inspected or fined. This bare allegation, even
if true, affords no grounds for relief:
[The agency's] mere inability does not render
such enforcement as it accomplished wrongful. The
fact that others violated the law with impunity is
no defense. ·rt is only when the enforcement agency
is vested with a discretionary power and exercises
its discretion arbitrarily or unjustly that enforcement of a valid regulation [violates the law].
Thompson v. Spear, 91 F.2d 430, 433-34 (5th Cir. 1937),_ cert. denied,
302 u.s. 762 (1938).
Respondents' claim of prejudice from denial of broad-ranging
discovery into the enforcement activities of the Marquette Office
must be denied. At no time was the claim supported by factual
allegations of any substance.
The claim of prejudice from denial of a continuance fails for
the same reason. The record is barren of anything apart from the
request for a continuance. Counsel for the Respondents did not indi~
cate how or why it would be prejudiced by denial of a continuance.
It is clear that counsel received actual notice of the hearing at
least 2 weeks in advance. Copies of the inspector's field notes

1312

pertinent to the case were made available in advance of the hiaring.
His motion does not explain how the failure to receive the notes at
an earlier date prejudiced his ability to prepare for the hearing.
The motion was made after the hearing commenced, and after counsel,
witnesses and the judge had travelled many miles to the hearing site.
CONCLUSIONS OF LAW
1. Respondent operator on September 8, 1978, was in violation
of 30 c.F.R. § 56.5-l(a). The appropriate penalty for this violation, taking into consideration the criteria in section llO(i) of
the Act, is $250.
2. Respondent operator was in violation of section 104(b) of
the Act because of its failure to comply with the order of withdrawal issued October 30, 1978. The appropriate penalty for this
violation, taking into consideration the criteria in section llO(i)
of the Act, is $2,000.
3. Respondent Patrick K. Thornton, as agent of the corporate
operator, deliberately refused to comply with the withdrawal order.
This constitutes a violation of section 104(b) of the Act. A penalty
in the amount of $2,000 will be assessed under section llO(c) of the
Act for this violation, based on my finding that the violation was
deliberate and very serious.
4. Respondents failed to show prejudice from denial of broadranging discovery into the enforcement activities of the Marquette,
Michigan off ice of MSHA or from denial of a continuance at the
hearing.
ORDER
Within 30 days of the issuance of this decision, Respondents
are ORDERED to pay the following civil penalties: Superior Sand
and Gravel, Inc.: $2,250; Patrick K. Thornton; $2,000; -

J

•C1-t 'JU: -5

v4--8tock- elc_

:1.
James A. Broderick
Chief Administrative Law Judge

Distribution:
Page 7.

1313

Distribution;

By certified mail.

Norman McLean, Esq., Attorney for Superior Sand and Gravel, Inc., McLean &
McCarthy, 706 Shelden Avenue, P.O. Box 65, Houghton, MI 49931
Karl Overman, Attorney, Office of the Solicitor, U.S. Department of
Labor, 657 Federal Building, 231 West Lafayette, Detroit, MI 48226
Philip Smith, Esq., Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1314

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 \\'. Cl.11 I,\'< f1 VE:NUl
CCII fJllJ\fJ(J B0704

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SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,
v.
FMC CORPORATION,
Respondent.

3

JUN 1980

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-168-M
A/O NO. 48-00152-05007
Mine:

FMC Mine

APPEARANCES:
James H. Barkley, Esq., Office of th~ Regional Solicitor,
United States Department of Labot; 1585 Federal Building,
1961 Stout Street, Denver, Colorado 80294,
for the Petitioner,
Clayton J. Parr, Esq., Martineau, Rooker, Larsen and
Kimball, 1800 Beneficial Life Tower, 36 South State
Street, Salt Lake City, Utah 84111,
for the Respondent.
DECISION AND ORDER
Before:

Judge Jon D. Boltz
Statement of the Case

Petitioner seeks an order assessing civil monetary penalties
against Respondent for violations alleged in 8 citati.ons.

The standards

allegedly violated were promulgated under the authority-of the Federal Mine
Safety and Health Act of 1977.

(30 U.S.C. § 801 ~seq.).

The Respondent, in its answer, denies that any of the regulations cited
were violated.

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

Lake City, Utah, commencing on February 20, 1980.

During the course of the

hearing two citations were withdrawn by the Petitioner.

I r.eceive<l

Respondent's post hearing brief on April 7, 1980, and, by letter, the
Petitioner waved filing a post hearing brief.

1315

In -this Decision each citation will be discussed separately and

in

the same order ;hid1-.it was dealt with at the hearing.
Findings of Fact

1.

In the course of its business, Respondent operates a coal mine,

known as the FMC Mine, in Sweetwater County, Wyoming.
2.

During the _course of an inspection of Respondent's mine, a duly

authorized representative of the Petitioner issued to the Respondent four
citations alleging violations on February 5, 1979, and four citations
alleging violations on February 7, 1979, all of ~lich are the subject of
this proceeding.
3.

The Respondent has a history of 41 assessed violations in 76

inspection days.'
4.

The Respondent is a large operator having 1380 underground mine

employees who worked 647,641 man hours in the calendar quarter prior to the
issuance of these citations.
5.

The imposition of the civil monetary penalties requested by

Petitioner will not effect Respondent's ability to continue business.
Citation 336461
This citation alleges a violation of 30 CFR § 57.9-371.

The

evidence is conflicting, and I find the following facts are established:
6.

A flatbed service truck, used for purposes of field lubrication

(Tr. 96) and to haul tools and parts (Tr. 12), was observed parked with the
front part of the truck resting on a steep grade (Tr. 10) which continued to
downgrade for approximately 20 to 25 feet.

1/ "Mandatory. Mobile equipment shall not be left unattended unless the
brakes are set. Mobile equipment with wheels or tracks, when parked on a
grade, shall be either blocked or turned into a bank or rib; and the bucket
or blade lowered to the ground to prevent movement."

1316

7.

Beyond_ the downgrade, in front of the truck, the ground leveled

off for a distance of approximately 100 feet, to where a guard house was
located.
8.

(Tr. 10).
The truck was left unattended, the brakes were not set and the

wheels were not blocked.
The citation should be affirmed.
The Respondent argues that the cited regulation is misapplied because
the truck was not mobile equipment used for loading, hauling, and dumping
ores or for any other purposes as required under the standards of 30 CFR
§

57.9, entitled "Loading, Hauling, and Dumping."
Although the evidence concerning the use of the truck is conflicting,

it appears that it was used,. among other things, for hauling purposes.
Respondent's garage supervisor testified that the truck was used for hauling
purposes, although it was to be taken out of service and replaced by a new
truck.

(Tr. 12).

The truck was mobile equipment and was left unattended without the
brakes being set.

This is sufficient to support a finding that there was a

violation of 30 CFR § 57.9-37.
Citation 336462
This citation alleges a violation of 30 CFR § 57.9-22.
The following facts were established:

9.

The brake and tail lights on the truck referred to in the previous

citation were not operating when inspected.
10.

(Tr. 12, 13).

The truck was not used after the inspection, but was sold.

(Tr. 102).
2/ "Mandatory. Equipment defects affecting safety shall be corrected
before the equipment is used."

1317

The citation slrnul-d -be vacated because the equipment was not used
after the time of the inspection.

The fact that the brake and tail lights

were not operating did not affect safety.
Citation 336465
This citation charges a violation of 30 CFR § 57.14-63 in ·that the
guard for the V-belt drive on the Centurian coal feeder was allegedly not in
place while the machinery was operating.
I find that the evidence establishes the following:

11.

The motor on the coal feeder operates only when coal is dumped into

the hopper.

This dumping operation occurs three times per week.

(Tr. 112).

12.

The coal feeder motor operates for approximately 3 hours when coal

is dumped into the hopper.
hours per week.

13.

Thus, the coal feeder operates approximately 9

(Tr. 112, 113).

The coal feeder motor does not turn on automatically, but must be

turned on in a control room located approximately 30 to 40 feet away, up a
flight of steps above the area of the coal feeder.

(Tr. 114, 115).

This citation should be vacated because the Petitioner failed to prove
that the guard was not in place on the coal feeder motor while the machinery
was being OlJerated.

It was conjecture by the Mine Safety and Health

Administration witness that because dust was on the metal guard lying by the
coal feeder that "the unit may have been operated with the guard off."
(Tr. 16).

Likewise, it wns speculative to concl11cle, hased upon his

"understanding" (Tr. 17) lliat the unit comes <Jn m1tomatically without the
3/ "Mandatory. Except when testing the machinery, guards shal 1 be ll_ecurely
in place while machinery is being operated."

1318

necessity of turning on a switch, that the coal feeder unit could
operate.

Such testimony is insufficient to prove a violation occurred.
Citation 336466

A violation of 30 CFR § 57.14-14 is alleged.
The facts are as follows:
14.

Three return idler rollers, which provide a support system for a

conveyor belt on its under side (Tr. 19), were unguarded.
15.

At the time of the inspection there was spillage under the

unguarded return idler rollers.
16.

(Tr. 20).

Employees of the Respondent would be in the proximity of the

unguarded return idler rollers when cleaning up spillage and while
inspecting the equipment.
17.

(Tr. 20).

The return idler rollers were located on an incline, approximately

one to four feet above the floor level depending on the angle of the
incline.
18.

(Tr. 19, 21).
A person, while working in the area, might get caught between the

moving parts of the idler rollers and the conveyor belt and might suffer
injury.

(Tr. 19).

The Respondent argues in its brief that the return idler rollers
should not be considered to be "similar exposed moving machine parts."
I conclude, however, that the wording of the regulation is sufficiently
broad to include them.

The idler rollers and conveyor belt are moving

machine parts and there is a danger of injury to persons as a result of

4/ "Mandatory. Gears; sprockets; chains; drive, head, 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."

1319

pinch points be.ing left unguarded.

The more relevant question is

whether or not these exposed moving machine parts "may be contacted."

Judge

Koutras 1n his decision of Secretary of Labor v. Massey Standard Rock
Company, 1 MSHC 2111, June 18, 1979, sets down a test by which the
applicability of section 57.14-1 may be measured.

The Massey case dealt

with section 56.14-1, but the wording is the same as section 57.14-1.
" ... when an inspector cites a violation of section 56.14-1,
it is incumbent on him to ascertain all of the pertinent factors
which lead him to conc.lude that in t"ile"normal course of his work
duties at or near exposed machine parts, an employee is likely
to come into contact with such parts and be injured if such parts
are not guarded." Hassey at p. 556 of official text.
Differently stated, this same test was applied in the case of Secretary
of Labor v. Central Pre-Mix Concrete Company, 1 MSllC 2237, September 26,

1979.
'' ... on a case-by-case basis, pet1t1oncr (the Secretary of
Labor) must establish that the unguarded area in question, by
its location and proximity to the comings and goings of mine
personnel, exposes them to the hazard or danger of being
caught in the unguarded pulley. . .. [T]his question can only be
determined by consideration of the prevailing circumstances
at the time the citation issued." Central Pre-Mix at p. 1431
of official text.
Upon applying these tests to the foregoing findings of fact, I conclude
that the citation should be affirmed.
Citation 336471
This citation alleges a violation of 30 CFR § 57.14.15.
The facts are as follows:

19.

Three return idler rollers that support a moving conveyor .belt,

located approximately seven, eight and nine feet above the floor in thP.
distribution building, were unguarded.

5/

See footnote 4 on page 5.

1320

(Tr 23-30, 186-187).

20.

There_~.,a~ __ ;i. build-up

of mllck or dirt on the floor below the

return idler rollers at the time of the inspection.
Applying the tests used in the Massey and Central Pre-Mix cases
previously cited, this citation should be vacated.

The evidence does not

support a finding that in the normal course rif his work duties at or near
the exposed machine parts, an employee may come in contact with such parts
and may be injured if the parts are not guarded.

As the return idler

rollers were seven, eight and nine feet above the floor, they were guarded
by location.

In addition, by removing spillage from the floor, it would not

be necessary for an employee to work close to the return idler rollers.
Citation 336472
This citation alleges a violation of 30 CFR § 57.14.16.
I find the following facts:
21.

This takeup pulley operates on a vertical belt and is used to take

the slack out of the conveyor belt, as it starts up or as it continues under
load (Tr. 189), and provides tension on the belt.
22.

(Tr. 192).

On the takeup pulley, a pinch point is created at the point where

the belt comes into contact with the rotating device around which the belt
travels.
23.

(Tr. 76).
A horizontal work platform with two handrails was located near the

vertical belt.

The belt travels up vertically within two to three inches of

the handrails.

(Tr. 193, 67).

24.

The lower portion of the takeup pulley was guarded.

(Tr. 64).

A guard was located at the end of the takeup pulley, but the Petitioner
presented testimony to show that the vertical movement of the tail pulley
6/

See footnote 4 on page 5.

1)4_1

can vary from a· few __i11cQ.~s_ _to two or three feet when the belt starts up
initially or when under load conditions.

(Tr. 217).

This testimony is

disputed by Respondent's witness who testified that the movement is eight
inches.

I find that the testimony of Respondent's witness is more

acceptable because he made actual measurements after the citation issued.
(Tr. 229).

As the lower portion of the tail pulley was guarded, no

violation was proven in regard to its function.
However, I find an unsafe work area was created by the nearness of the
upward moving belt to the two handrails which were two to three inches away
from the be 1 t.

(Tr. 67).

The evidence was in dispute as to how close the

running belt•would come to the railings, three to four inches (Tr. 200) or
"about a foot" (Tr. 208), but I find from the evidence that there is some
horizontal movement and fluctuation in the operation of the belt.

In

addition, the mine inspector testified that the belt moves at approximately
ten feet per second, and " [ i] f you got into it there is no way you could get
out of it."

(Tr. 75).

He also testified that in actual operation, "when it

got flopping," the belt probably could touch the handrails.

Thus,

in

the

normal course of his work duties on the work platform, an employee may come
into contact with such moving parts and may be injured if such parts are not
guarded.

This citation should be affirmed.
Citation 336660 and 336470

These citations were withdrawn by the Petitioner.

I find the facts to be as stated in paragraphs 1 through 24 and in
addition find the following:

1322

25.

Re.£poQd.ent ~-s --h-istory of prior violations is not significant anJ

good faith was demonstrated in achieving rapid compliance after notification
of the violations alleged.
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 is subject to the provisions of the Federal Mine

Safety and Health Act of 1977.
2.

The Respondent violated the regulations cited ln Citations 336461,

336466 and 336472.

3.

The Petitioner failed to prove violations of the regulations cited

ln Citations 336462, 336465 and 336471.
4.

The Petitioner having withdrawn Citations 336660 and 336470, the

citati.ons should be vacated.
Order
1.

Citation 336461 and the proposed penalty of

2.

Citation 336466 and the proposed penalty of $20 are affirmed.

3.

Citation 3364 72 and the proposed penalty of $18 are affirmed.

4.

Citations 336462, 336465, 336471, 336660 and 336470 and all

$L~4

are affirmed.

penalties therefor are vacated.
It is further Ordered that the Respondent pay the affirmed penalties

within 30 days from the date of this Decision.

//···;

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i·

Holtz -'_..--_,-·
Administrative Law jGdge
J.oh D.

1323

•• ·

•

-

Distribution:
James H. Barkley, Esq., Office of the Solicitor, United States Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Clayton J. Parr, Esq., Martineau, Roker, Larsen and Kimball, 1800 Beneficial
Life Tower, 36 South State Street, Salt Lake City, Utah 84111

1324

FEDERA-L MrN~-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52oJ LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

3

JUN 19SO

ISLAND CREEK COAL COMPANY,
Contestant

Contests of Citations and Orders
Docket No. VA 79-62-R

VIRGINIA POCAHONTAS COMPANY,
Contestant
v.

Citation No. 0694332
Order No. 069433; May 16, 1979
Virginia Pocahontas No. 3 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. VA 79-63-R
Respondent

UNITED MINE WORKERS OF AMERICA
(UMWA),
Respondent

Citation No. 0694936
Order No. 0694937; May 9, 1979
Virginia Pocahontas No. 4 Mine
Docket No. VA 79-61-R
Citation No. 0695807; May 18, 1979
Virginia Pocahontas No. 2 Mine

DECISIONS
Statement of the Proceedings
These cases concern contests filed by the contestants pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, on June 8, 1980,
challenging the legality of the captioned citations and orders issued by
respondent MSHA for contestants' refusal to pay certain employee representatives for the time spent accompanying MSHA inspectors on their spot
inspection rounds.
Contestants' defense to the citations and orders is based on the
Commission's decisions in Magma Copper, 1 FMSHRC 1948, Kentland-Elkhorn Coal
Corporation, 1 FMSHRC 1833, and Helen Mining Company, 1 FMSHRC 1796 (1979),
holding that employee representatives are not entitled to compensation for
the time spent accompanying MSHA inspectors during spot inspections of a
mine.

1325

In view of t-he aforemen~ioned Commission decisions, which I find are
controlling on the issue presented in these proceedings, I issued an order
on May 5, 1980, directing the parties to show cause why the contestants are
not entitled to summary judgment as a matter of law. At the same time, I
dissolved a previous stay issued by Chief Judge Broderick on June 26, 1979,
taking note of the fact that the stay was erroneously based on the decision
in~ v. Monterey Coal Company, Docket Nos. HOPE 78-469 ,!;!.~·
Respondents MSHA and UMWA responded to my order of May 5, 1980, and
they take the position that since the Commission's decisions in Helen Mining
Company and Kentland-Elkhorn are currently on appeal in the Court of Appeals
for the District of Columbia Circuit (appeals filed December 30, 1979), and
since Magro.a Copper is on appeal in the Ninth Circuit, those decisions are not
fully and finally dispositive on the issue of walkaround compensation, and
that contestants are not entitled to summary decisions until such time as the
court decides the appeals. Under these circumstances, respondents request
that I deny the contestants further relief and reinstate the stays in these
proceedings.
Contestants responded to my order of May 5, 1980, aµd they take note of
the fact that Judge Broderick's previous stay of June 26, 1979, was actually
based on the fact that Helen Mining, Kentland-Elkhorn, and Magro.a Copper had
not as yet been decided by the Commission. Since the Commission has now
finally decided the walkaround issue and rendered its decisions in these
cases, contestants take the position that the instant proceedings are ripe
for summary decision. Further, since there appears to be no factual dispute,
contestants believe that the cases may be summarily decided without the
necessity for any evidentiary hearings. Contestants move that the citations
and orders issued be vacated ab initio.
Discussion
Based upon a review of the pleadings filed in these cases, the facts
leading to the issuance of the contested citations and orders do not appear
to be in dispute, and briefly stated, they are as follows:
Docket No. VA 79-62-R
On April 18, 1979, MSHA inspector James R. Baker conducted a section
103(i) spot inspection at the mine and was accompanied by employee representative Elmer Ball. Contestant refused to pay Mr. Ball for the time spent on
'this walkaround, and it did so on the basis of its belief that compensation
for spot inspection walkarounds were not required in light of Judge Lasher's
prior decisions in Magro.a Copper Company, DENV 78-533-M, and Kentland-Elkhorn
Coal Corporation, PIKE 78-399. Thereafter, on May 16, 1979, at 9:07 a.m., ·
MSHA inspectors Carl E. Boone II and James R. Baker issued a section 104(a)
citation to the contestant charging a violation of section 103(f) of the Act
for failing to pay Mr. Ball. The citation required payment to Mr. Ball no
later than 12 p.m. on May 16, 1980, and when contestant again refused to pay

1326

Mr. Ball, the hlspe~-tors issued a section 104(b) withdrawal order. Contestant then paid Mr. Ball under protest in order to terminate the citation
and order, and the order was subsequently terminated.
Docket No. VA 79-63-R
On March 9, 1979, MSHA inspector James Franklin conducted a section
103(i) spot inspection at the mine and was accompanied by employee representative Larry Allen •. As a result of contestant's refusal to pay Mr. Allen
for the time spent on the walkaround, MSHA inspector Clarence W. Boone issued
a section 104(a) citation to the contestant at 10:15 a.m. on May 9, 1979,
citing a violation of section 103(f), and requiring payment to Mr. Allen by
12:30 p.m. that same day. Upon refusal by the contestant to pay Mr. Allen,
Inspector Boone issued a section 104(b) withdrawal order and contestant then
paid Mr. Allen under protest asserting the same defense as noted above. The
order was subsequently terminated.
Docket No. VA 79-61-R
On April 10, 1979, MSHA inspector Jerry Wiley conducted a section 103(i)
spot inspection of the mine and was accompanied by employee representative
Lilah L. Agent. Upon refusal to pay her for the time spent on this walkaround, contestant was served with a section 104(a) citation by MSHA inspector Ronald L. Pennington at 8:30 a.m., on May 18, 1979, and the abatement
time requiring payment to Ms. Agent was fixed as 12:30 p.m. the same day.
Contestant paid Ms. Agent under protest, and the citation was terminated.
I take note of the fact that on March 21, 1980, the Commission denied a
request by the United Mine Workers of America that the effect of its decisions in Helen Mining Company and Kentland-Elkhorn be stayed pending judicial
review, 2 FMSHRC 778. As aptly noted by Commissioner Backley in his concurring opinion at page 779: "To stay the precedential effect of our decisions would not merely result in the issuance of final Commission decisions
contrary to what the Commission has found to be the intent of Congress, but
it would be inconsistent with the role assigned to the Commission under the
Act."
Conclusion
After careful consideration of the pleadings and arguments presented by
the parties in these proceedings, including a review of the facts, which I
·find are not in dispute, I conclude that contestants' position is correct
and that they are entitled to summary decision as a matter of law. It seems
clear to me that the Commission has finally decided the issues presented in
these proceedings and has ruled that miners' representatives are not entitled
to be compensated for the time spent on walkarounds during the course of a
spot inspection. That precedent is controlling in these proceedings, and the
fact that MSHA and the UMWA have seen fit to appeal the Commission's final
rulings is no basis for staying these proceedings any further. Accordingly,
respondents' motions for a continued stay of these proceedings are DENIED.

1327

Since the facts-are not-fo dispute, I accept and adopt the facts as set
forth in the contests filed by the contestants as set forth above as my findings of fact. Further, I accept the legal arguments advanced by the contestants in these proceedings as my conclusions of law and find that contestants
are entitled to summary judgment on the pleadings. The contrary arguments
advanced by the respondents are rejected. I conclude and find that the
Commission's precedent decisions as discussed herein with respect to the
rights of a miner to be compensated during a spot walkaround inspection are
dispositive of the issues presented in these proceedings, and that contestants are entitled to· summary decisions as a matter of law.
ORDER
IT IS ORDERED that the captioned citations and orders which are the
subject of these contests be VACATED.

Jt~Kofa~
Administrative Law.Judge

Distribution:
William K. Bodell II, Esq., Virginia Pocahontas Company, P.O. Box 11430,
Lexington, KY 40575 (Certified Mail)
Leo J. McGinn, Esq., u.s. Department of Labor, Office of the Solicitor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Joyce Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)

1328

FEDERAL MINE SAFETY ANP HEALTH REVIEW COMMISSION
333W.C Lr AX AVENUE
DENVER, COLORADO 80204

JUN

5 t9BO
)
)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),

)
)
)

Petitioner,
v.
PHILLIPS URANIUM CORPORATION,

)
)
)
)
)
)
)

Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-281-M
A/O NO. 29-01730-05002
DOCKET NO. CENT 79-282-M
A/O NO. 29-01688-05003
DOCKET NO. CENT 80-6-M
A/O NO. 29-01688-05004
DOCKET NO. CENT 80-124-M
A/O NO. 29-01688-05005
(Consolidated)
Mine:
Mine:

Nose Rock Ill Crownpoint
Nose· Rock if2 Crownpoint

)

APPEARANCES:
E. Justin Pennington, Esq., of Dallas, Texas, for the
Petitioner,
Malcolm L. Shannon, Jr., Esq., of Albuquerque, New Mexico,
for the Respondent.
DECISION
Carlson, Judge
These cases involve thirteen citations issued to respondent for
safety violations committ.ed by independent contractors performing work at
respondent's mine near Crownpoint, New Mexico.

The

parti~s

submitted a

stipulation of facts in which they state that the alleged violations were in
fact committed and that the penalties proposed by the Secretary are
reasonable.

All matters of fact recited in the stipulated record are hereby

found to be true and are fully incorporated into this decision.

Both

parties also filed motions for summary decision.
Briefly summarized, the stipulations show that respondent owned mining
rights to and was mining at the mine sites when they were inspected; that
American Mine Services, Incorporated (AMS) and Cementation West,

1329

Incorporated fe-emenntt-tonJ had contracted with respondent to construct
mine shafts and other facilities and had been working continuously for
several months when the citations were issued; that the work performed and
the citations issued involved AMS and Cementation employees and equipment
exclusively, except that respondent observed and inspected the work to
assure compliance with the contract; and that the violations were abated by
AMS and Cernentation.
The sole issue, therefore, is whether respondent was the proper party
to be cited.

In MSHA v. Old Ben Coal Company, 1 FMSHRC 1480 (October,

1979) and again in MSHA v. Monterey Coal Co., 1 FMSHRC 1781 (November,
1979), the Commission ruled that mine owners may be cited for violations
committed on their property by independent contractors.

Until the

Commission changes its position, these decisions are controlling and,
together with the parties'

stipulation~,

support a finding of violation.

ORDER
Accordingly, respondent is ordered to pay a civil penalty of $672
within 30 days of this decision.

Distribution:
E. Justin Pennington, Esq., Office of the Solicitor, United States
Department of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas
75202
Malcolm L. Shannon, Jr., Esq., George W. Terry, Jr., Esq., Phillips Uranium
Corporation, Legal Division, P. O. Box 26236, 4501 Indian School Road, N.
E., Albuquerque, New Mexico 8 7125

1330

FEDERAL MIN_E ~_Af~TY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

~56-6230

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. VINC 79-247-P
A.C. No. ll-00585-03012M

Petitioner

v.
FRANK J. BOUGH, employed by
Peabody Coal Company,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. LAKE 79-91
A.C. No. 11-00585-03014
Petitioner

No. 10 Underground Mine

v.
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Miguel Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for Petitioner;
Thomas Gumbel, Esq., Collinsville, Illinois, for Respondent
Frank J. Bough; and Thomas R. Gallagher, Esq., St. Louis,
Missouri, for Respondent Peabody Coal Company.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This proceeding arises out of the consolidation of two civil penalty
proceedings.

On April 18, 1978, the Mine Safety and Health Administration

(hereinafter MSHA) filed a petition for assessment of a civil penalty against
Frank J. Bough (hereinafter Bough), a miner employed by Peabody Coal Company,

1331 ..

for smoking a cigarette in an underground mine on October 10, 1978, in violation of 30 C.F.R. § 75.1702.

On June 29, 1979, MSHA filed a petition for

assessment of civil penalties against Peabody Coal Company (hereinafter
Peabody) for violation of the same regulation on the same date and for a
ventilation violation under 30 C.F.R. § 75.316.

On January 2, 1980, I

ordered these cases consolidated under Procedural Rule 12 of the Federal
Mine Safety and Health Review C~mmission, 29 C.F.R. § 2700.12, because the
two cases involve similar issues of law and fact.
A hearing was held in Springfield, Illinois, on February 21, 1980.

MSHA

inspectors, John D. Stritzel and Mark Bryce testified on behalf of MSHA.
Waldo Prasun, a buggy operator; Burt Lahr, the union steward and walkaround;
and Frank J. Bough testified on behalf of Bough.

Wally Heil, an environ-

mental dust technician; Winston Robinette, a face boss; Irvin Shimkus,
Peabody's safety manager; and Bob Hall, Peabody's mine manager testified on
behalf of Peabody.

Bough submitted his case on a closing argument at the

close of the taking of testimony.

MSHA and Peabody submitted briefs.

At the outset of the hearing, I approved a proposed set~lement between
MSHA and Peabody concerning a violation of Peabody's appro~ed ventilation
plan.

That settlement is set forth later in this decision.

The unresolved

controversy that required a hearing was whether Bough and Peabody violated
30 C.F.R. § 75.1702.

MSHA contends that Bough was seen smoking a cigarette.

Bough contends that he did not smoke a cigarette.

MSHA further charges that

Peabody did not have an effective program to insure that persons entering the
underground area did not carry smoking materials.
charge.

1332

Peabody contests that

MOTION TO DISMISS AND APPROVE SETTLEMENT
On January 15, 1980, the Solicitor filed a motion to dismiss and approve
settlement of the part of the civil penalty proceeding against Peabody
(Docket No. LAKE 79-91-M) which involved a citation for violation of
30 C.F.R. § 75.316.

Citation No. 264754B was originally assessed by MSHA for

$760 whereas the parties proposed a settlement in the amount of $600.
This citation arose out of a finding by MSHA that the ventilation for
the area in question was inadequate.

A reduction in the proposed assessment

is submitted by MSHA because the violation was due to an air curtain which
had been knocked down.

Further investigation showed that Peabody was in the

process of rehanging the curtain at the time the citation was issued and,
hence, its negligence was overassessed.
Having duly considered the matter, I conclude that the recommended
settlement is consistent with the purposes and policy of the Act.
.recommended settlement is, therefore,

The

approve~.

ISSUES
Whether Bough and Peabody 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 317(c) of the Act, 30 U.S.C. § 877(c), and 30 C.F.R. § 75.1702
provide:

1333

No person shall smoke, carry smoking materials, matches,
or lighters underground, or smoke in or around oil houses,
explosives magazines, or other surface areas where such
practice may cause a fire or explosion. The operator shall
institute a program, approved by the Secretary, to insure
that any person entering the underground area of the mine
does not carry smoking materials, matches, or lighters.
Section 110 of the Act, 30 U.S.C. § 820, provides in pertinent part:
(a) 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 ~ay constitute a separate offense.

*

*

*

*

*

*

*

(g) Any miner who willfully violates the mandatory
safety standards relating to smoking or the carrying of
smoking materials, matches, or lighters shall be subject to
a civil penalty assessed by the Commission, which penalty
shall not be more than $250 for each occurrence of such
violation.
STIPULATIONS
The parties stipulated the following:
1. The administrative law judge has jurisdiction over
this matter.
2.

Peabody Coal Company is a large operator.

3. Peabody Coal Company has a better than average
record of .violations per inspection man day when compared
with the rest of the coal industry.
4. Inspectors John D. Stritzel and Mark G. Bryce are
duly authorized representatives of the Mine Safety and Health
Administration.
5. Frank J. Bough was a miner employed at Peabody Coal
Company's Underground Mine No. 10 on October 10, 1978.

1334

SUMMARY OF THE EVIDENCE
John D. Stritzel testified that he has been a federal mine inspector for
9 years.

On October 10, 1978, he was conducting a regular mine inspection

of the No. 10 Underground Mine of Peabody Coal Company.

On the day in ques-

tion, he had checked on the abatement of two prior citations.

He then led

the inspection party up to a crosscut between rooms 2 and 3.

A buggy behind

a· loading machine blocked his entry into the crosscut.

When the buggy pulled

out, he stepped around the corner and saw Frank Bough 15 feet away operating
the loading machine with a lighted cigarette in his mouth.

Mr. Bough had

both hands on the controls of the loading machine and the inspector had a
profile view of him.

Inspector Stritzel described the cigarette as filter

tipped, freshly lighted, and glowing.

Inspector Stritzel raised his light

and Bougfi looked at him and did a "double take."

The inspector observed

Bough with a cigarette in his mouth for approximately 5 seconds.

There-

after, Bough ducked down in the cab and the inspector signaled him to stop
the loading machine.

Instead, Bough then started tramming the machine back

in the direction of the inspector and swinging the tail of the loader back
and forth.

Approximately 30 to 45 seconds thereafter, Bough stopped the

machine and the inspector approached him.
Inspector Stritzel stated that he told Bough that he had seen him
smoking and asked where was the cigarette.
loaded it out."

Bough allegedly replied, "I

Inspector Stritzel knew that was false because the buggy had

already left the scene before he saw him smoking.

The inspector looked

around the loader for approximately 5 minutes but did not find a cigarette.

1335

The loading machine.was-not moved.

Inspector Stritzel was upset, aggravated,

and disappointed because he had known Bough for 5 or 6 years on a first name
basis.

He stated that Bough had been his "good friend."

his walking cane down on the ground.

Mr. Bough."

The inspector threw

He stated, "I didn't want to cite

For the next 15 minutes, the inspector remained in the cross-

cut and could smell cigarette smoke for that period of time.

There was no

ventilation moving in the crosscut because the curtain was not up.

The

inspector found .5 percent methane on his methane detector and issued an
order of withdrawal.

This was the first time the inspector ever saw any

person smoking in an underground mine.

The inspector was later told that

Bough had been searched but no smoking materials were found.

Bough was not

searched in the presence of the inspector.
Inspector Stritzel further testified that at the time of this occurrence,
Peabody Coal Company had an approved program for prohibition of smoking
underground for Mine No. 10.
on April 13, 1970.

This approved plan had been adopted by Peabody

The plan seemed to be reasonably good but all searches

were conducted in the same manner.

According to Inspector Stritzel, Peabody

only searched lunch boxes and required the miners to remove their caps.
Peabody never searched thermos bottles, tobacco pouches, or shoes.

Inspector

Stritzel had no reason to presume that the program was ineffective until he
saw Bough smoking a cigarette.

Since he found Bough smoking a cigarette, he

had to find that the program was insufficient.
No. 10 Underground is classified as a gassy mine.

In the event of an

ignition caused by the lighted cigarette, Inspector Stritzel stated that up

1336

to 10 miners would-be--exposed- to injury.

After the inspector issued a cit a-

t ion to Bough and an order of withdrawal to Peabody, Peabody demonstrated
reasonable good faith in abatement.
preshifts at all three portals.

Peabody conducted searches on all

Inspector Stritzel testified that, in his

opinion, Peabody violated the Act and regulations because it did not insure
that miners would not smoke underground.
Mark Bryce was an inspector-trainee at the time.
Inspector Stritzel at the time of this occurrence.

He was accompanying

He did not see Bough

smoking a cigarette because he was approximately 30 feet behind Inspector
Stritzel at the time of the occurrence.

Bough was not iri his line of vision.

As Bryce approached the crosscut in question, he smelled cigarette smoke.
did not see any cigarette smoke and he smelled no other odor.

He

There was no

ventilation in the crosscut in question and a cigarette odor remained
throughout the time he was present.

Inspector Stritzel was the person

closest to Bough at the time of this incident.
Waldo Prasun, a buggy operator, testified on behalf of Bough.
with Bough for 10 years.

He worked

He was the operator of the buggy which had just

pulled out of the crosscut before Inspector Stritzel stepped around the
corner.

Bough was in his line of vision until he pulled out of the crosscut.

He estimated that it was 2 or 3 seconds from the time he moved his buggy
until Inspector Stritzel stepped around the corner.

In response to the

question as to whether he had seen Bough smoking a cigarette at that tim~,
Mr. Prasun responded, "if he had it, I didn't know it."

He went back into

the crosscut while the inspector and Bough had their conversation.

1337

He did

not smell any cigarette smoke.

There was a haze of oil smoke and brake band

smoke in the crosscut.
Burt Lahr, a union steward and walkaround, also testified for Bough.

He

was the union walkaround accompanying Inspector Stritzel on the day in question.

Bough was not in his line of vision when the inspector allegedly saw

him smoking.
smoke.

When Mr. Lahr entered the crosscut, he did not smell cigarette

However, he stated that there was smoke coming off the brake shoes

of the loading machine.

He described a strong odor of smoke.

He stated that

there was some air flowing into the crosscut even though the line curtain was
down.

Mr. Lahr did not recall anyone being searched.
Frank J. Bough testified that he had worked in the Underground 10 Mine

for 22 years.

He was a loader operator on the day in the question.

He

testified that while he was operating the loader, he saw Inspector Stritzel
signal him to stop.
you smoking."

Inspector Stritzel approached him and stated, "I saw

Bough responded, "You are a damn liar."

At that point,

Inspector Stritzel threw his cap or cane down on the ground.
that he did not smoke a cigarette.

Bough stated

He smokes Lucky Strike cigarettes and

never smoked a filter cigarette in his life.

He never refused a search at

the mine and no smoking materials were ever found on him.

There was poor

visibility in the crosscut at the time because the brake discs were smoking.
Approximately 30 minutes after this occurrence, he was searched by the mine
manager.

No smoking materials were found.

He never had any problems with

Inspector Stritzel and does not know why the inspector would accuse him of
smoking.

1338

Peabody called Wally Heil, an environmental dust technician, as its
first witness.
in question.
inspector.

Mr. Heil was the Peabody representative on the inspection
At

th~

time of the occurrence, he could not see Bough or the

He heard Bough deny that he was smoking.

anything when he got to the crosscut in question.
any attention to smells * * * "

Mr. Heil did not smell

He stated, "I didn't pay

He stated that if there had been any smoke

in the crosscut, it would stay in the entry.

The only significant difference

between the program which was in effect on October 10, 1978, .and the new
program subsequently adopted was that Peabody searches more often under the
new program.
Irvin Shimkus, has been the safety manager at No. 10 Mine since 1970.
He stated that under the plan in effect at the time of this occurrence,
Peabody conducted periodic searches.

During the search, management would

pat the miner's pockets and ask some miners to open their lunch buckets.
Periodic safety meetings were held concerning the prohibition on smoking.
Bough attended such safety meetings in June and July 1978.
Bob Hall was mine manager of No. 10 Underground on the day in question.
He has worked for Peabody for 20 years.
Mr. Hall that he was not smoking.
a box of Skoal.

On the day in question, Bough told

Mr. Hall searched Bough and only found

Under the plan in effect at the time of this occurrence,

Peabody searched miners once a week.

Most of the searches were conducted

on top but occasionally there was a surprise search conducted on the bottom.
In all of the time that Hall has been connected with Peabody, no smoking
materials were ever found in any of the searches.

1339

However, Hall volunteered

the information that he had seen people go back to their lockers when they
were aware that a search would be conducted.

Mr. Hall's pertinent testimony

is as follows:

Q. In all the searches that Peabody has conducted at
Mine No. 10, underground mine, have you ever found any
smoking articles?
A. We have never found any in our search on top or
bottom. We have had people go back to their locker before
if they seen we had a search program coming up.

*

*

*

*

*

*

*

Q. When the search would be done on top, would it be
your policy, then, to let those people go back to their
lockers before they were searched?
A.

We don't give them case until they are searched.

(Tr. 201-202).
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, arguments, briefs, and
proposed findings of fact and conclusions of law have been considered.

The

first issue to be resolved is whether Frank Bough smoked a cigarette in an
underground mine as alleged by MSHA.

While the testimony of Inspector

Stritzel and Bough is in direct conflict on this question, there are other
facts which are not disputed.

They are as follows:

(1)

At the time

Inspector Stritzel alleged that he saw Bough smoking a cigarette, no
one else saw or could have seen Bough; (2) no cigarette was found at the
site of this occurrence; (3) Bough was searched for smoking materials
approximately 30 minutes after the occurrence and no smoking materials were

1340

found; (4) Bough and Inspector Stritzel knew each other and Bough could supply
no motive for Inspector Stritzel's charge against him; (5) in approximately
9 years as a federal mine inspector, Inspector Stritzel had never seen anyone
else smoke a cigarette in an underground mine; and (6) Frank Bough knew that
smoking in an underground mine was prohibited.

Hence, MSHA's allegation

against Frank Bough must be resolved by determining the credibility of the
testimony of Inspector Stritzel and Frank Bough.
I find that the testimony of Inspector Stritzel was more credible and
worthy of belief than the testimony of Frank Bough.
following reasons:

(1)

This is so for the

Inspector Stritzel was 15 feet away from Bough at

the time of this occurrence and had an unobstructed view; (2) there is no
evidence of record which would establish any motive for Inspector Stritzel
to make-a false charge against Bough--in fact the evidence establishes that
they were friends and the inspector did not want to cite Bough; (3) the fact
that the cigarette was not found is not significant in light of the inspector 1 s credible testimony that after he signaled Bough to stop his loader,
Bough ducked down in the cab, could have dropped the cigarette under the
loader, and trammed the loader back and forth for some 30 seconds before
stopping it; (4) based upon the demeanor of the witnesses--including their
appearance, tone of voice, zeal, and candor--! find that the testimony of
Inspector Stritzel was truthful and that the testimony of Frank Bough was
not; (5) Bough's assertion that he riever smoked filter tip cigarettes is
insignificant under the facts herein; and (6) the testimony of Bough was
self-serving and unpersuasive.

1341

I should note here that there was some other con.flicting evidence which
I did not find to be significant in arriving at the above findings.

First,

there was a dispute as to whether the area in question contained cigarette
smoke, oil smoke, brake band smoke, or no smoke at all immediately after the
occurrence.

Second, there was a dispute as to whether the ventilation, if

any, would have removed the smoke, if any, in the 15 minutes after the
occurrence.

Third, there was a dispute as to the relative positions of the

members of the inspection crew at the time of this occurrence.

Suffice it

to say that none of these disputes affected the outcome of this matter.
Even if all three had been resolved against MSHA, my decision would be the
same.

The disputed evidence did not affect the credibility of Inspector

Stritzel.

Hence, this evidence is immaterial and insignificant.

Therefore, I find that MSHA has established by a preponderance of the
·credible evidence that Frank Bough smoked a cigarette in Peabo~y Coal Company
Underground Mine No. 10 on October 10, 1978, in violation of section 317(c)
of the Act and 30 C.F.R. § 75.1702.

Section llO(g) of the Act provides that

"any miner who willfully violates the mandatory safety standard relating to
smoking * * * shall be subject to a civil penalty assessed by the Commision,
-

which penalty shall not be more than $250 for each occurrence of such violation. 11

There are no extenuating .or mitigating facts in the record of the

instant case which would justify the assessment of less than the maximum
civil penalty.

To the contrary, the life and safety of each member of the

crew was placed in jeopardy by this violation in a gassy mine at a place
were ventilation was inadequate.

Frank Bough knew that smoking was pro-

hibited and, therefore, his violation of the Act and regulation was willful.

1342

I conclude that a civil penalty of $250 should be imposed upon Frank Bough
for the violation found to have occurred.
The next issue to be resolved is whether Peabody violated the Act or
regulation and, if so, the amount of the civil penalty which should be
assessed.

MSHA asserts that Peabody is liable for the following reasons:

(1) The fact that Frank Bough was smoking a cigarette underground in a
Peabody mine establishes that Peabody's program did not insure that smoking
materials were not carried to the underground ·area of the mine; and ( 2)
Peabody is chargeable with "deficient enforcement of the anti-smoking
program."

Peabody alleges that it is not liable because:

(1)

Bough did

not smoke a cigarette underground; and (2) even if Bough did violate
30 C.F.R.

§

75.1702 by smoking a cigarette underground, Peabody "is not

absolutely liable in such a situation and, therefore, also guilty of a
violation of§ 75.1702."
As noted above, the language of section 317(c) of the Act and 30 C.F.R.
§ 75.1702 is identical.

The Act and regulation require an operator to

institute a program, approve by the Secretary, "to insure that any person
entering underground area of the mine does not carry smoking-materials,
matches, or lighters."

(Emphasis supplied.)

upon the operator the highest possible duty:

Hence, Congress has imposed
that of an insurer.

The fact

that I previously found that Frank Bough was smoking a cigarette establishes
that Peabody failed in its role as an insurer and, hence, violated the Act
and regulation.

While such a finding could alleviate the need for any

further discussion of the question of whether Peabody violated the Act or

1343

regulation, the evidence of record in the instant case also establishes
notice to Peabody that its anti-smoking program was ineffective.

The manager

of the mine in question testified that he had seen miners go back to their
lockers when they became aware of the fact that a search would be conducted.
Peabody acquiesced in this practice by permitting the miners to return to
their lockers before being searched.

It is reasonable to infer from this

fact that Peabody had notice that miners would carry smoking materials
underground but for the fact that they had advance warning of a search.

The

evidence of record fails to show that Peabody took any action to change the
methods·. or places of its searches in the light of this information.

Thus,

Peabody not only violated the Act and regulation herein, it was also negligent in failing to institute a program which would insure compliance.

There-

fore, I agree with MSHA that Peabody violated the Act and regulation because
(1) the fact that Frank Bough smoked a cigarette underground establishes that
Peabody's program did not insure that smoking materials would not be taken
underground and (2) Peabody had notice that its plan did not insure
compliance with the Act and regulation but failed to institute a different
program.
Section llO(i) of the Act, 30 U.S.C. § 820(i), requires consideration
of six criteria in the assessment of a civil penalty.

As pertinent here,

the operator's prior history of 106 violations in the previous 2 year$ is
noted.

None of these violations is relevant to the instant case.

Peabody

is a large operator and the assessment of a civil penalty will not affect
its ability to continue in business.

1344 .

As noted above, Peabody was negligent in its failure to institute a
program which would insure that smoking materials were not carried underground.

It had notice that its program in this regard was deficient in that

miners who were about to be searched for smoking materials were permitted to
return to their lockers prior to such a search.

In the light of such notice,

Peabody's failure to take additional action to insure compliance with the
Act and regulation amounts to ordinary negligence.
The gravity of this violation is severe.
fied as a gassy mine.

Underground 10 Mine is classi-

The violation in question endangereq the lives and

safety of at least 10 men employed in the section.

The lighted cigarette

served as a potential ignition source in an area were there was no effective
ventilation to remove methane.

A serious accident was avoided only because

the methane present at that time was less than 5 percent.
Peabody demonstrated good faith compliance upon notification of the
violation.
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 pf $1,500
should be imposed upon Peabody for the violation found to have occurred.
ORDER
Therefore, it is ORDERED that Respondent Frank Bough pay a sum of $250
within 30 days of the date of this decision as a civil penalty for the violation of section 317(c) of the Act and 30 C.F.R. § 75.1702.

1345

It

is FURTHER ORDERED that Peabody pay the sum of $2, 100 within 30 days

of the date of this decision for the violation of 30 C.F.R.
section 317(c) of the Act, and 30 C.F.R.

§

§

75.316,

75.1702.

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn St., Chicago, IL 60604 (Certified Mail)
Thomas Gumbel, Esq., P.O. Box 533, Collinsville, IL 62234 (Certified
Mail)

Thomas R. Gallagher, Esq., P.O. Box 235, St. Louis, MO 63166 (Certified
Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. CCU AX AVENUE
DENVER, COLORADO 80204

JUN

GEX COLORADO INCORPORATED,

9 1980
)
)

)

Contestant,

NOTICE OF CONTEST

)

)
)

v.

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION,
(MSHA),

i

)

104 ( d) (l) CITATION NO. 0786,
MAY 1, 1980, 75.200

)
)

DOCKET NO. WEST 80-306-R

)

)

Mine:

Roadside Mine 05-00281

)

Respondent.

)
)

APPEARANCES:
Curt Neumann, Acting Safety Director, appearing pro se,
GEX Colorado Incorporated, Grand Junction, Colorado
for the Contestant,
Ann M. Noble, Esq., Office of Henry C. Mahlman, Regional
Solicitor, United States Department of Labor, Denver, ·
Colorado
for the Respondent.
Before:

Judge John J. Morris
DECISION

Petitioner, GEX Colorado Incorporated, contests the unwarrantable
failure designation of a citation issued by respondent, Mine Safety and
Health Administration, on May 1, 1980.

An expedited hearlng was held in

Grand Junction, Colorado on May 20, 1980.

MSHA's answerl admits the

issuance of the citation but denies the remaining portions of GEX's notice
of contest.
1/

Transcript 2-3.

l341-

Citation 786800 alleges that GEX violated 30 C.F.R. 75.200 which
provides as folIOws-:-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 r1bs.
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.
Ray Brandon, Pet Darland, Eugene Lopez, and Kenneth Short testified for
GEX~

Matthew Bia'ndeck testified for MSHA.
The parties waived the filing of post trial briefs.
Issue
The issue is whether the citation should have been issued as an
unwarrantable failure by GEX in not complying with the cited standard.
(Tr. 3).
Findings of Fact
Based on the record I find the following facts to be credible..

1.

GEX's method of coal mining involves pillar recovery.

A large

portion of the coal is removed and. the roof is then allowed to collnpsr.
(Tr. 32).

1348

2. - Pillars, orif.inally !+5 feet by 100 feet, :ire split into three
pieces.
3.

The final pillars are 45 foot by 20 foot (Tr. 32).
The canopy of GEX's 33 foot continuous miner was covered when the

unsupported roof caved in (Tr. 14,22,30).
4.

The regular machine operator was attending a meeting at the time of

this accident (Tr. 36).
5.

The substitute operator, who had been instructed in running the

miner, did not know he had passed the last permanent roof support
(Tr. 38,39).
6.

A company rule prohibits the use of the continuous miner beyond the

last permanent roof support (Tr. 33,34,37).
7.

In the ordinary course of events the continuous miner would not be

under the unsupported roof (Tr. 33).
8.

Ray Brandon, the GEX section foreman, who was in the immediate

area, was not in a position to observe that the continuous miner had moved
beyond the last permanent roof support (Tr. 34).
9.

The foreman

IH~ard

the timber squeak and he ho llored for the

operator to get out.
DISCUSSION

The case involves a credibility determination.

For-the reasons

hereafter discusssed I have determined that the unwarrantable failure
portion of the citation was improvidently issued and it should be vacated.

1349

MSHA's case f6r the issuance of its unwarrantable failure designation
rests on the .:.evidenee-th-at· the section foreman stated, after the roof
collapse, that he was aware the miner operator was under unsupported roof.
Further, he was not going to lie about it (Tr. 14,15).

The evidence did not

establish when the section foreman knew the continuous miner was under the
unsupported roof (Tr. 20).
In GEX's case the section foreman does not deny the statements
attributed to him by the inspector.
hindsight.

He thinks the statement was a matter of

At trial he could not recall at any time seeing the continuous

miner pass out under the unsupported roof (Tr. 35).
The statement of the section foreman attributed to him by the inspector
ts clearly admissible as an admission aga·inst interest as well as an excited
utterance [Rule 804(b)(3); 803(2) Federal Rules of Evidence].

However, I am

equally persuaded by the demeanor and the testimony of the section foreman.
His fai-lure to deny the statement, in my view, adcis credibility to his other
testimony.
The issues here are close but the evidence indicates this was an
inadvertent violation.
One of the elements of an unwarrantable failure citation is that the
mine operator must know or should have known of the violation cf Alabama ByProducts Corporation, v. Mine Workers, BARB 78-601 (July 1979, Lasher, J). ·
Petitioner's evidence on this issue is not persuasive.
For the foregoing reasons I enter the following
ORDER
The unwarrantable failure portion of Citation 78600 ts VACATED.

e Law Judge

1350

Distribution:
~---·

-

--

Curt Newmann, Acting Director of Safety, GEX Colorado Incorporated, P.C. Box
W, Palisade, Colorado 81526
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Ann M.
Noble, Esq.

1351

FEDERAL MINE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52a.J LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

9

JUN 1980
Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. SE 79-16-M
A.O. No. 31-00582-05003

Petitioner

v.
Docket No. BARB 79-266-PM
A.O. No. 31-00582-05002

IDEAL BASIC INDUSTRIES-CEMENT
DIVISION,
Respondent

>

Castle Hayne Quarry & Mill

DECISIONS
Appearances:

Darryl A. Stewart, Attorney, u.s. Department of Labor,
Nashville, Tennessee, for the petitioner;
Karl w. McGhee, Esq., Wilmington, North Carolina, for the
respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. 820(a), on January 31 and April 12, 1979, charging the respondent
with a total of 10 alleged violations of certain mandatory safety standards
set forth in Part 56, Title 30, Code of Federal Regulations. Respondent
filed timely answers contesting the citations and re~uested hearings. Hearings were held pursuant to notice on March 5, 1980, in Wilmington,
North Carolina, and the parties appeared and participated therein. The
parties waived the filing of written briefs or proposed findings and conclusions and were afforded an opportunity to present arguments on the record
during the course of the hearings.
Issues
The principal issues presented in these proceedings are (1) whether
respondent has violated the provisions of the Act and implementing regulation as alleged in the proposal for assessment of civil penalty filed, and,
if so, (2) the appropriate civil penalties that should be assessed against
the respondent for the alleged violation based upon the criteria set forth
in section llO(i) of the Act. Additional issues raised by the parties are
identified and disposed of in the course of these decisions.

1352

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 il .lli.·
2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1 il.lli.•
Discussion

Stip'!Jlations
The parties stipulated as to jurisdiction, that the respondent's quarry
and mill is subject to the Act, that the site was inspected by MSHA inspectors during the period July 25-27, 1978, that respondent was given an opportunity to accompany the inspectors during their inspection, and that the
citations in issue in these proceedings were duly served upon respondent's
representatives (Stipulation filed August 29, 1979).
In addition ·to the prehearing stipulations, the parties also agreed as
to the size and scope of respondent's mining operation at its Castle Hayne
Quarry and Mill, indicated that the product mined at the open pit quarry is
marl, which is the basic. substance for producing cement, and agreed that
respondent has an average history of prior violations (Tr. 9, 10).
DOCKET NO. SE 79-16-M
The five section 104(a) citations issued in this docket were all issued
by MSHA Inspector Edwin E. Juso, and they are as follows:
Citation No. 103821, July 25, 1978, 30 C.F.R. 56.9-87: "The reverse
signal alarm for the 988 cat loader working near the primary crusher was not
functioning."
Citation No. 103824., July 25, 1978, 56.14-1: "The idlers under the
skirtguards and the take-up pulleys for the No. 2 clinker belts were not
guarded. The pinch points were exposed. The No. 2 clinker belt is on the
5th floor of the mill building."

1353

Citation No-~· HrJ82T; "July 25, 1978, 56.14-1: "The idlers under the skirtboards and the tail pulley for the No. 1 clinker belts were not guarded.
The No. 1 clinker belt is on the 5th floor of the mill building.
Citation No. 103830, July 25, 1978, 30 C.F .R. 56.14-1: "The idlers
under the skirtboa·rds for the coal stacker belt were not guarded.
Citation No. 103843, July 25, 1978, 30 C.F.R. 56.9-2: "The hydraulic
side coupling for the track mobile No. 1 was broken. Railroad cars could
not be stopped due to this in case of an emergency.
Testimony and Evidence Adduced
Citation No. 103821 - Petitioner
Inspector Edwin Juso confirmed that he issued.the citation in question
after observing the loader in question back up and no alarm was sounded. The
machine is a very large one, and access to the operator's seat is by means
of a ladder. The machine has an obstructed view to the rear at eyesight
level and a man standing behind it at some distance would not be visible to
the operator. The inspector indicated that he has been in the cab of such a
machine and has been seated next to the operator. The machine in question
had side view exterior mirrors, and while an alarm was in fact installed on
the machine, it was inoperable. He observed the machine in operation, and
indicated that it was loading marl from a pit pile and taking it to the primary crusher. Although the area where the machine in question was an area
traveled by pedestrians, he observed no one on foot near the machine on the
day the citation issued. Although a spotter is acceptable in lieu of an
alarm, he saw no one stationed as a spotter, and he recalled no other
vehicle in the vicinity. The machine in question is an "articulating"
machine; that is, the wheels do not turn, but the cab turns to a maximum of
some 70 degrees. When the cab turns right or left there is an obstructed
view to the other side (Tr. 11-18). Inspector Juso indicated that abatement
was achieved by repairing the alarm, and the respondent acted in good faith
quickly and there was no willful neglect (Tr. 19).
On cross-examination, Inspector Juso stated that it was possible that
the macnine operator had disconnected the wire from the backup alarm to keep
it from sounding because he was alone and did not want to hear the sound.
However, he could not recall the operator telling him that because it was
so long ago. He confirmed that he observed no one in the area except the
loader operator, but indicated that people do travel through the area while
walking from the mill building to the crusher. He could not recall whether
the loader had a horn and he indicated that he cited the respondent for not
having an automatic reverse alarm. The purpose of such a requirement is to
prevent the machine from backing over a pedestrian or a smaller piece of
equipment. Although the crusher operator is normally stationed inside the
building, there are times when he must leave and go to the area where the
loader is operating. Although the loader operates in different areas, he
did observe it move to other locations on the day in question. Although he

1354

personally has-never· Olfer-ated such a loader he does know that it operates
forward and reverse while loading. While conceding that the sound emitted
by the reverse alarm is "annoying", he believed that it is not if one is
wearing ear protection. Even though an operator may be alone while operating the machine, the standard still requires an alarm because the machine
may be moved to another operating location. There are always blind spots
and obstructed views to the rear of such loaders, but this would depend on
the particular circumstances presented (Tr. 20-31).
Respondent's Testimony
Robert Pyles, plant administrator, testified that he accompanied the
inspector when the citation was issued and he stated he was familiar with the
loader in question. It was equipped with a backup alarm as well as a horn,
but the alarm had been disconnected. The wire to the micro-switch located on
the steering column had been disconnected and this was contrary to the company safety rules. Mine management was not aware of this fact until the
morning of the inspection. The machine was subsequently completely overhauled, and in the process the alarm was connected directly to the transmission so that it sounded automatically when the machine was placed in reverse.
He identified exhibit R-1 as a photograph of the primary crusher and estimated that it was some 100 yards from the main plant where people walk and
come by. No one had any reason to be in the area where the machine was
operating on the day in question (Tr. 36-39).
On cross-examination, Mr. Pyles testified that the loader was taking
material from the stock pile and dumping it in the crusher. Material is not
ordinarily stockpiled, but is only stock piled for emergency. The normal
operation entails transporting the material directly from the pit quarry by
trucks and then dumping the loads directly into the crusher. He was not
aware that trucks would be operating in the vicinity of the loader, and he
was not aware that someone was in the crusher building. Company policy
dictates that backup alarms be connected regardless of where the machine may
operate, and if the operator of the machine disconnected it he had no
authority to do so (Tr. 40-42). The function of the loader operator is to
dump the marl materials into the crusher (Tr. 43).
Citation No. 103824, 103827, and 103830.
Petitioner's Testimony and Evidence
Inspector Juso confirmed that he issued the three citations in question
and that he cited section 56.14-1 of the standards after finding unguarded
moving machine parts. He issued Citation No. 103824 after observing that the
belt idlers under the skirtboards on the No. 1 and No. 2 clinker conveyors
were not guarded. The idlers, with the skirtboards located directly above
them, formed a pinch point and if a man caught his finger or hand inside the
pinch point, a serious injury could result. However, the extent of the
injury would depend on the amount of pinch point clearance. While all idlers
are not required to be guarded, those that are hazardous and have skirtboards

1355

directly on top 6-f- them· are-required to be guarded. There was access to both
conveyors on both sides, and the conveyors were some 42 inches off the floor,
and this height was consistent along the entire length of the conveyors,
which were some 50 to 100 feet long. He saw evidence that cleanup work had
been performed adjacent to the unguarded idlers and observed footprints and
a shovel adjacent to the idlers. Travelways where persons could pass by were
adjacent to both sides of the belts. He observed no structural guards on the
skirtboards or belts to prevent persons from falling into the unprotected
idlers, and he observed a man near the 1 skirtboards but he was not shovelling.
The idlers were at a belt transfer point, normal spillage occurs there, and
he observed evidence that cleaning had taken place under the belts, and he
concluded that cleanup personnel would be exposed to a hazard since cleanup
is required where there is spillage present (Tr. 45-52).
Inspector Juso testified that he also observed an unguarded belt takeup
pulley which is used to take up the belt slack and keep it taut. This was
at a different belt location, and while the unguarded idlers and takeup
pulleys constituted separate violations, he incorporated them into one citation since it was on the same piece of equipment. The pulley was large but
he did not measure it. He believed the pulley was guarded, but he determined
that the guard was inadequate because the pinch point was exposed. He was
not concerned about the belt rollers, but only with the pinch point. The
pulley was located under the conveyor belt structure itself and slightly
above the floor at a point where the takeup and bend pulleys are located.
The pulley was of solid cylindrical construction and it is known in the
trade as a "wing pulley" (Tr. 52-56).
Inspector Juso testified that the facts surrounding the issuance of
Citation No. 103827 was essentially the same as the first guarding violation.
The two belts in question are parallel belts with a travelway between them.
The idlers on the number one belts where there were skirtboards installed
were not guarded. Also, the tail pulley on the No. 1 belt was unguarded and
was at the same end as the takeup pulley on the No. 2 belt. Both belts were
of the same height and he saw evidence of cleanup on the No. 1 belt also. He
observed footprints and determined that shovelling had taken place. The tail
pulley is also known as a "wing or spoked pulley", a portion of it was
exposed, and someone could inadvertently put his hand in or slip or fall into
the pinch point. The hazard of being caught in the idlers is the same as
that which was presented on the No. 2 belt. While the unguarded locations
cited constituted two separate violations, he treated it as one citation
(Tr. 56-59).
With regard to Citation No. 103827, Inspector Juso testified that the
conditions were essentially the same as the other guarding citations, but
that this one concerned only one condition, namely, the unguarded stacker
belt idlers located under the belt skirtboards. The idlers under the skirtboards constituted pinch points which were required to be guarded under
section 56.14-1. The area was at ground level toward the tail pulley side
of the belt, and he believed the belt was inclined. The unguarded area was
at a belt transfer point and the purpose of the skirtboards is to keep the

1356

material on a straight flow up the conveyor. The hazard was between the
idlers, and if someone got his hand into it it would have a mashing or pinching effect. All of the guarding citations were abated in good faith by the
respondent (Tr. 59-61).
On cross-examination, Mr. Juso indicated that it is not necessarily true
that some passing employee would have to slip or fall to come into contact
with the pinch points at the locations cited in the three guarding citations.
He was concerned with cleanup personnel in close proximity to the unguarded
idlers under the skirtboards. While cleanup crews may use shovels or brooms
and be that far from the pinch points, they may take breaks and start talking
with their fellow workers, and the intent of the standard is to guard against
accidents. Maintenance men and others walk through the areas cited, and he
.believed the unguarded areas cited were hazardous because of the pinch
points, the grabbing effect, the spoked pulley, and "common sense tells me
what is a hazard and what is not" (Tr. 73-78). Personnel may slip and fall
into the pinch point, and a shovel may get caught in the pinch points and a
hand may follow the shovel in.
Inspector Juso stated that he does not consider a belt idler roller
se to be a pinch point because there is no weight on top of the conveyor
and if someone put there hand in, the belt would lift up and the hand would
pass through. Although such a belt is considered moving machinery, it is not
required to be guarded. However, if a skirtboard were installed, a pinch
point would be created because the hand would be stopped by the skirtboard
and be mashed (Tr. 80-83). Inspector Juso could not specifically recall the
types of guards installed to achieve abatement of the guarding citations
(Tr. 84).

~r

In response to bench questions, Inspector Juso stated that the clinker
belt tail pulley was guarded to some extent, but that the idlers beneath
the skirtboards were not guarded at all. Regarding the pinch points in
question, he indicated that they were approximately 1 foot inside the belt
framework and that would be the approximate distance one would have to reach
to contact the pinch points (88-91).
Respondent's Testimony
Al Klayshak, safety director, testified that the guarding standards published as "American National Standards" (ANSI) have been accepted by OSHA as
sufficient to cover belt guarding requirements. He discussed several specific standards and indicated they were more specific and more to the point
than the mandatory standards promulgated under the Act. He also believed
that prior to the issuance of the citations in question, the belts in question were safe and he stated that the intent of the safety standards under
the Act is not to prevent the inadvertent situation where an employee might
fall, but rather, the normal and usual occurrences where an employee could
accidentally come in contact with a pinch point in the normal course of his
work. He conceded, however, that the ANSI standards may not be cited by MSHA
under the Act, nor relied on by the respondent as compliance under the Act
(Tr. 91-99).

1357

Albert L. Simon, plant manager, testified that he.was so employed at
the time the citations in question were issued and he described the belt
conveyor systems in question. The belts in question are 4-1/2 feet off the
ground, and except for cleanup personnel, employees do not normally work
at or near the belt lines or pinch points. The clinker belts on the fifth
floor location cited are cleaned by shovelling the spillage into wheelbarrows and dumping it in a floor op.ening away from the belt line. This is
done to keep employees away from the belt (Tr. 100-102).
In response to further question:;,Mr. Simon stated that abatement was
achieved by welding hooks along the skirtboards and hanging one-four-inch
rubber belting, approximately 18 inches along, over the hooks. He did not
believe anyone could get their arm or any part of his body caught in the
locations cited, and he was aware that prior inspections determined that the
existing guards were safe (Tr. 102-104).
Citation No. 103843 - Petitioner's Testimony
Inspector Juso confirmed that he issued the citation in question after
determining that a side coupling for the number one track mobile vehicle used
to push railroad cars was broken. The piece of equipment in question has a
front hydraulic coupling as well as a rear manual coupling, and the hydraulic
one was broken. The coupling is used to facilitate better traction when it
pushes against the raiload cars. The "knuckle" which couples to the car was
not functional, and in that condition it would not couple with or hold the
car to which it is attached, and this would result in the car being pushed
becoming disconnectd and the car would !'free wheel" through the shop yard and
rail loading area. Although the truck mobile has an audible warning horn, it
was inoperative. Men and trucks would be in the area and would be exposed to
a hazard. The broken coupling was replaced with a new one, and while he did
not observe the mobile in operation, he was able to determine that it was
being used with the broken coupling prior to the time he issued the citation
(Tr. 161-165).
On cross-examination Mr. Juso confirmed that the track mobile in question had couplings on both ends, but that he could not determine whether
the end coupling which was broken was in fact being used. Employees in the
area told him that the end which was broken had been used, -but he could not
identify the employees by name. They simply told him that it was used at
some unspecified time in the past. He did not see the equipment in operation and simply observed that one of the couplings was broken. He was
·shown a copy of an order form re-ordering a new coupling for the equipment
in question, and he identified a photograph (Exhibit R-7) as a coupling
similar to the one which he observed. He conceded that the equipment could
have been used from either the front or the rear. He determined that the
condition was hazardous from what he was told by the unidentified employees,
and he did not record their names in his notes (Tr. 165-170).
In response to bench questions, Inspector Juso affirmed that he did not
see the mobile equipment in operation and that it was parked at the time he

1358

issued the cifattori~· -He-conceded that he would not have issued a citation
if no one had informed him that it had been used (Tr. 173). While there was
another identical piece of mobile equipment undergoing repairs, he did not
know whether the one with the defective coupling would have been put in
operation before the other one was repaired and put back in operation
(Tr. 164, 174).
Plant administrator Robert Pyles was called as petitioner's witness,
and he confirmed that the track mobile in question had couplings on both
ends, one hydrauli·c, and one manual. He also indicated that both ends of
the equipment look identical. He stated that he did not know whether the
equipment cited was being used with a broken coupling, and he could not
confirm that anyone told the inspector that the track mobile was used with
a broken coupling (Tr. 174-176).
Plant manager Albert Simon was called as petitioner's witness, and he
testified that he was not with Inspector Juso when he inspected the track
mobile. He observed the track mobile the day before the inspection and
again on the afternoon of the inspection and on both ocassions it was parked
at the pack house. The other track mobile was in th-e-shop for repairs. The
pack house is a shipping point where the railroad cars are loaded, and he
is sure that the cars were loaded the day before the inspection as well as
after. He was also sure that the track mobile which was cited would have
been used safely prior to the inspection (Tr. 176-178).
On cross-examination, Mr. Pyles testified that the rail cars are actually stopped by their own braking systems. The broken hydraulic coupling
on the mobile track was in fact a broken pin and since the track mobile can
be operated from either end, instructions were given to use the end with the
stationary coupling until the replacement part for the broken one was
received (Tr. 179-181).
Findings and Conclusions - Docket SE 79-16-M
Fact of Violation - Citation No. 103821
With regard to the backup alarm Citation No. 103821, petitioner takes
the position that while an alarm was in fact installed on· the loader in
question, since it was.disconnected and not functioning, it is the same
as not having one installed (Tr. 24).
Respondent conceded that the backup alarm was disconnected and was
not working at the time the citation issued (Tr. 34). Respondent's defense
is based on its assertion that the operator of the loader disconnected the
alarm because the sound emitted was annoying to him, and that since he was
the only person present in the area there was no need for the alarm to
sound. Further, in the event the loader were moved to another area, all
that would be required is for the alarm to be reconnected (Tr. 24-26).
Section 56.9-87 requires that heavy duty mobile equipment be provided
with audible warning devices and that when the operator has an obstructed

1359

view to the rear, the equipment is required to have 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.
In this case, the inspector observed the loader in operation, determined
that it had an obstructed view to the rear, and that no observer was present.
Although a backup alarm was installed on the loader, it was disconnected and
emitted no sound when the loader was operated in reverse. Respondent conceded that the alarm had been disconnected and was inoperative at the time
the inspector observed the condition and issued the citation. I conclude and
find that petitioner has established a violation. The standard cited
requires an audible backup alarm, and I agree with the petitioner's position
that an installed inoperative alarm is insufficient to establish compliance.
The citation is AFFIRMED.
Negligence
I conclude and find that the condition cited resulted from ordinary
negligence in that respondent failed to take reasonable care to insure that
the backup alarm was in an operative condition before· the loader was used.
Closer supervision or attention to the loading procedure and operation could
have prevented the condition cited.
Gravity
Although the inspector observed no one other than the loader operator in
the vicinity of the loading operations on the day the citation issued, he did
indicate that persons on foot traveled through the area from time to time.
Respondent's testimony is that the stockpile where loading was taking place
was some 100 yards from the main plant where people travel. It would appear
that on the day in question, no other pedestrians or equipment were in the
area and petitioner has not established than anyone was exposed to any hazard
of being struck or run over by the loader. Under the circumstances, I conclude that the condition cited constitutes a nonserious violation.
Fact of Violation - Citation Nos. 103824, 103827, 103830
With regard to the three guarding citations, respondent contended that
prior MSHA inspections resulted in the extension of certain emergency stop
cords to the skirtboard locations in question and that MSHA accepted this as
adequate protection, approved this procedure for all of the plant conveyor
belts, and that respondent was completely unaware that additional guarding
was necessary. In short, respondent argues that it does not know what has
to be done to meet the guarding requirements placed on it by MSHA inspectors
from inspection-to-inspection (Tr. 63-73). Further, respondent argues that
an inspector's judgment as to a hazardous pinch point, standing alone, is
insufficient to establish a violation of the cited guarding standard because
the standard itself is so broad (Tr. 85-87).

1360

30 C.F.R~-56...-14-t-p-rovides as follows: Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheeh; 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.
It seems obvious to me that the inspector issued the three citations
concerning the unguarded belt idlers after determing that the idlers, located
appoximately 12 inches inside the belt frame, in combination with the skirtboards, constituted unguarded hazardous pinch points which could be contacted
by cleanup and other personnel either working at or near those locations or
walking by on the adjacent walkways. Since the unguarded pinch points were
at belt transfer points, and since he observed evidence of cleanup at those
locations, the inspector assumed that cleanup personnel were in close proximity to the unguarded pinch points. The inspector denied any knowledge of
any instructional memorandums with respect to the application of the cited
standard, and testified that his determination that the unguarded locations
were hazardous and could be accidentally contacted by personnel was based on
his experience and the facts as he found them on the day the citations
issued.
Respondent's defense is based on the assertion that previous MSHA
inspections had found that the belt systems in use were adequately guarded
and that respondent was in compliance. However, the respondent produced no
direct evidence that MSHA had previously inspected the specific locations
cited by Inspector Juso and found them to be in compliance. Accordingly,
this defense is rejected. Further, respondent's additional defense that OSHA
has accepted certain ANSI guarding standards as sufficient compliance is
likewise rejected. We are dealing with specific mandatory safety standards
promulgated pursuant to a law enforced by MSHA and those requirements are
imposed on a mine operator subject to the 1977 Mine Safety Act, and any
OSHA-ANSI requirements are irrelevant and immaterial. Further, respondent's
defense that the cited standard is intended to protect a mine employee from
direct work-related hazards rather than inadvertent or accidental entanglement in a pinch point is likewise rejected. In my view, the two situations
are directly related and inseparable. In other words, I believe the standard is intended to preclude injuries resulting from someone slipping,
falling, or otherwise coming into contact with an exposed unguarded pinch
point, and most injuries in this regard are the direct result of inadvertent or accidental contact with such unprotected locations.
After careful consideration of all of the testimony and evidence
·adduced with respect to these citations, I find that petitioner has established that the three unguarded idler pinch point locations, some 12 inches
from the edge of the belt frames in question, where cleanup personnel were
present and obviously working, constituted areas which could be contacted by
persons, thereby inflicting injuries, and that the failure to provide guards
at those locations constitutes violations of the cited standards. The citations are AFFIRMED.
With regard to the alleged unguarded takeup pulleys mentioned in Citation Nos. 103824 and 103827, which the inspector treated as single violations

1361

along with the-unguarded-fdiers, I take note of the fact that the inspector
stated that he "believed" those pulleys were guarded, but that the guards
were inadequate. However, he offered little credible evidence to establish
that those locations were in fact hazardous, and I take note of the fact
that section 56.14-3 requires that existing guards extend a sufficient distance to prevent a person from accidentally reaching behind the guard and
becoming caught between the belt and the pulley. I believe that the inspector should have cited this standard if he in fact believed that the existing
takeup pulleys were inadequately guarded. He obviously treated all of the
conditions described in the two citations as single violation, but I conclude that petitioner has not established a violation insofar as the take-up
and tail pulleys are concerned, and for purposes of my decision in this matter, I have disregarded those alleged conditions and have levied penalty
.assessments on the basis of the unguarded idlers which I have found sufficiently support the citations insofar as those conditions are concerned.
Negligence
I find that the respondent should have been aware of the fact that the
unguarded belt locations cited should have been guarded. Respondent conceded that men were required to be in the area of the belt transfer points
to perform cleanup chores, and I believe it is reasonable to expect a mine
operator to be aware of potentially hazardous conditions such as unguarded
pinch points, and to insure that they are protected. I conclude that the
conditions cited resulted from respondent's failure to exercise reasonable
care and that this constitutes ordinary negligence.
Gravity
I have considered the fact that in at least two of the areas cited,
namely, the clinker belts on the fifth floor of the mill building, respondent
utilized a cleanup method that entailed shovelling and transporting any
spillage by wheelbarrow to a dumping point away from the belts, and that
this was done to keep cleanup crews away from the belts. This in itself is
a tacit admission by the respondent that the unguarded belt areas posed a
hazard, and the fact that walkways were adjacent to the unguarded belt locations added to the gravity of the situation. Further, the evidence establishes that the belts were some 4 to 4-1/2 feet off the ground and that the
exposed pinch points were some 12 inches from the belt frames. Considering
all of these circumstances, I find that the conditions cited in all three
citations were serious.
Fact of Violation - Citation No. 103843
Petitioner's counsel argued that it offered testimony that the track
mobile had a defective coupling and that Mr. Simon testified that it had
been used. However, counsel conceded that the inoperable coupling was probably not used but that the defective one still affected safety since it
could have been used. Regardless of whether the defective end is used or

1362

not, he still maintained that a violation of the cited standard is established if in fact one of the couplings was broken. He conceded that there
is no evidence that the defective coupling had been used. (Tr. 185-187).
Citation No. 103843 was vacated from the bench (Tr. 188). The basis for
the vacation was my finding and conclusion that petitioner had failed to
establish by a preponderance of the evidence that the defective coupling in
question was in fact used prior to the time it was replaced by a new orte.
Section 56.9-2 provides that "equipment defects affecting safety shall be
corrected before the equipment is used." I find that petitioner has failed
to establish that the nonuse of a defective coupling on the opposite end of
the track mobile affected safety. There is absolutely no credible evidence
that the broken coupling was in use, and if it was, it was incumbent on the
inspector to document the name of the employee who many have advised him
that it was, and petitioner should have produce some credible testimony to
prove its case. The evidence established that there were two couplings on
the track mobile and that the equipment could do the job from either end.
Further, petitioner conceded that the defective coupling was probably not
used, and I conclude that petitioner has not established-that merely using
the track mobile with a defective coupling which is not being used rendered
the equipment unsafe. My bench decision vacating the citation is reaffirmed
and the citation is vacated.
Findings and Conclusions - Docket BARB 79-266-PM
The five citations issued in this docket are as follows:
l04(a) Citation No. 103839, July 26, 1978, 30 C.F.R. 56.11-1:
The saf.e access provided from the third floor to the
mill room overhead crane was not being utilized by the crane
operator. He had it stopped at the opposite end of the landing and was climbing over or thru the guardrails to gain
acces~ to the crane.
The employee shall be instructed in the
use of the proper access.
107(a) - 104(a) Citation 103840, July 26, 1978, 30 C.F.R. 56.ll-l: "An
employee was working above the moving raw feed belt conveyor in an unsafe
position. The employee was standing straddling the conveyor approximately
four to five feet above the ground floor. No protection was provided to
keep the employee from falling."
Citation No. 103844, July 27, 1978, 30 C.F.R. 56.16-5: "Compressed gas
cylinders belonging to the contractor building the new warehouse were not
secured in a safe manner."
Citation No. 104890, July 27, 1978, 30 C.F.R. 56.15-7: "An employee
was observed using a cutting torch without an eye shield or goggles. The
employee was wearing regular safety glasses without side shields .• "

1363

Citation No. 104892, July 27, 1978, 30 C.F.R. 56.9-61: "The clinker
stockpile was not trimmed properly creating an overhang. A loader had been
working in the area of the overhang which was approximately 20 feet high."
Citation No. 103839 - Petitioner's Testimony and Evidence
Inspector Juso confirmed that he.issued the citation in question after
determining that a safe means of access was not being utilized by the crane
operator. The operator had stopped the crane at the opposite end of the
third floor mill room landing and was climbing over or through the guard
rails to gain access to the crane. Abatement was achieved by providing a
safety belt and line for use by the crane operator in places other than
those provided for suitable access. Gates are provided at places along the
landing so that an operator may step directly onto the landing floor. Here,
the crane was stopped at a place where there was no gate opening and the
inspector assumed that the operator got off the crane by climbing over or
through the handrails. No one was on the crane at the time he observed it
and the crane is approximately 60 feet above the floor. The areas provided
with gates are for egress and ingress from the crane, and there is no space
between the crane and gate landing where one could slip through and fall to
the floor below. The crane he observed was some 40 to SO feet from the
gate (Tr. 106-108).
Inspector Juso stated that the space between the crane and handrails
where a person could slip to the flobr was approximately 3 to 4 feet, but he
could not remember exactly because he took no notes. He stated: "all I know
is that it was unsafe, and that is why !,wrote the citation" (Tr. 109). He
saw no one on the crane, saw no one alight from it over or through the handrail, and the matter was brought to his attention by a mill employee whose
name he could not recall (Tr. 109). He believed he asked someone how a person would get on and off the crane parked at the location where he found it,
and the unidentified person did not know (Tr. 110). Inspector Juso described
the operation of the crane and indicated that it traveled along the mill
floor on rails and he assumed the crane operator was climbing over the handrails to alight from the crane, and since he considered this to be an unsafe
practice, he issued the citation. He did not speak to the crane operator
because he could not locate him (Tr. 111-112).
On cross-examination, Mr. Juso identified photographs of the top of the
crane, the crane walkway, and the gate at the top landing (Exhibits R-4 and
R-5). He could not recall the exact amount of space between the crane and
the landing, but indicated there was a hazard of falling and this would
depend on where the operator made his access to the landing (Tr. 114). As
for the abatement, Mr. Juso stated that he "went along" with the use of a
safety belt and line, but that he did believe that the use of an "A-frame"
with handrails from the crane to the landing would be a good method for protecting the operator. The A-frame could be kept on the crane and be used as
needed by the operator (Tr. 115). Once access is provided by means of gates,
he believed that they should be used; however, a safety belt and line could
be used to protect the operator in the event he attempted to climb over the

1364

handrails from the crane rather than using the gate. The handrails along
the landing are to protect pedestrians on the landing walkway from falling
below and are not intended to protect a crane operator while climbing over
them. An operator climbing through or over the handrails from the crane to
the landing, or vice-versa, is not a safe practice (Tr. 115-119, 121-123).
In response to bench questions, Mr. Juso stated that had the crane been
parked at a location where there was an exit gate at the time he observed it
he would have assumed that the crane operator used the gate and he would not
have issued the citation (Tr. 126-127). However, in response to a question
as to whether he would automatically issue a citation every time he observes
a crane parked at a place other than by an exit gate, he stated "well, I do
not want to stop their production because there are certain cases where they
have to do this because of other types of work that they use the crane for"
(Tr. 128). At the time the citation was issued the crane had a heavy piece
of equipment or motor attached to its cable and that is why the crane was
parked where he found it (Tr. 129). Even if the crane were parked flush
against the landing and the operator simply crawls under the landing handrail and onto the crane, that still would not be 100 percent safe because
"something can go wrong" (Tr.128). Mr. Juso did not know where the operator
got off the crane on the day he observed the crane (Tr. 129). He knows of
no other way a man can get out of the crane other than sliding down the
cable (Tr. 130-132).
Respondent's Testimony
Plant manager Robert Pyles testified that he was with inspector Juso
when the inspector observed the parked crane. He confirmed that the usual
and normal means of ingress and egress or access to the crane would be
through the gate-type opening provided for that purpose on the third floor.
The crane is frequently used at locations other than at the end of the rail
and it may remain there for hours at a time. He identified a photograph of
the crane (Exhibit R-6) and the cab where the operator is positioned. The
operator exits the cab by means of a ladder to the third level, and once at
the top of the ladder he will grab the landing handrail and go under it. It
would be difficult for him to fall into the space between'the crane and the
space between the crane and the landing. The operator has hand holds at
all points and he described his exit as similar to a boxer entering a ring,
and he believed there is no danger involved in exiting the crane in this
manner and no one has ever been injured (Tr. 146-149).
On cross-examination, Mr. Pyles confirmed that the gate at the third
floor landing is the location where the crane is normally parked so that the
operator may enter or exit the crane. The gate swings open for a four-foot
wide distance and when opened one can walk throug~ unobstructed by the handrail. He reiterated that it was normal for the crane operator to crawl
through the guardrail (Tr. 150).
Al Klashak testified that the crane in question is similar to others
used in the industry. He believed that access to and from the crane is safe

1365

regardless of whether.a safety line, A-frame, or other device is used because
of the fact that there is insufficient distance between the crane frame for
someone to fall to the rail below. He has observed the third floor landing
level and there are hand holds for the operator as he reaches the top of the
ladder. There is no danger in the operator simply walking through the
landing guardrail (Tr.152-154).
On cross-examination, Mr. Klashak stated that the third floor· guardrails
were designed to fit the landing structure and not the crane. There are
approximately four gates spaced some 50 or 60 feet apart and their purpose is
to permit access to the crane when it is marked, as long as the operator hung
on to himself there was no danger of his falling to the floor below (Tr.
152-156).
Albert Simon testified that there is only one gate on the third floor
landing and it is positioned at one end. The crane "is usually parked at that
location if it is stopped for a long period of time. The crane is used at
four grinding mills and when it has a suspended load it may stay in place for
as much as 2 days. It would be impractical to have additional gates (Tr.
157-159). He does not know why the gate was installed at the end location,
but presumes it was installed there so that the crane can be parked clear
from the rest of the machinery beneath it (Tr. 160).
Citation No. 103840 - Petitioner's Testimony and Evidence
Inspector Juso confirmed that he issued the imminent danger citation in
question after observing an employee working above the moving feed belt conveyor in an unsafe position. The man was standing and straddling the belt
with each foot on the belt frame and Mr. Juso and Mr. Pyles immediately went
to the area and instructed him to get off the belt (Tr. 134-135). Respondent's counsel stipulated that the man was in an unsafe and hazardous
position (Tr. 136).
On cross-examination, Mr. Juso stated that he believed the employee
took it upon himself to position himself on the belt in the manner described
and that company management did not require him to do so (Tr. 138). However,
he believed that closer supervision would have prevented the man from
straddling the belt (Tr. 139).
Respondent's Testimony
Plant administrator Robert Pyles confirmed that an employee was in fact
straddling the belt in question. He also indicated that the employee would
have received the normal written plant safety rules at the time of his initial employement. The man was a laborer and the maintenance department was
performing work in the area at the time the citation issued. He conceded
that the man was in an unsafe position and he (Pyles) reprimanded him, and
the man positioned himself in an unsafe position contrary to the company's
safety rules (Tr. 142-145).

1366

Citation-No:--103844-.:.. Petitioner's Testimony
Inspector Juso confirmed that he issued the citation in question after
observing two or three compressed gas cylinders belonging to a contractor who
was building the new warehouse unsecured in a safe manner. The cylinders
were lying on the ground and were not upright. The guages on oxygen cylinders are capped, but acetylene cylinder guages are merely recessed. He
quoted the hazards involved in handling acetylene cylinders, including an
explosion hazard, and he indicated that they are hazardous if not secured in
an upright manner with a chain to prevent them from falling over as required
by section 56.16.5. The cylinders were immediately removed from the property
after Mr. Pyles instructed the contractor to do so (Tr. 189-192).
On cross-examination, Mr. Juso testified that he did not determine
whether the cylinders were empty and capped and he indicated that he would
not open the valves to make this determination. He indicated that oxygen
tanks usually have a metal cap, but that acetylene tanks do not and the valve
is recessed within the bottle. He made no determination as to whether the
cylinders in question were empty, but indicated that it is possible that they
were capped. He believed that the fact that they were capped or not is no
indication that they are dangerous. The danger lies in the fact that they
were lying down. However, if the respondent proved to him "on the spot" that
they were empty, he would not have issued the citation because he treats all
cylinders lying on the ground and not secured upright in the same manner. He
did not ascertain from the contractor whether the cylinders were full or
empty, and he indicated that it is seldom that any cylinder is completely
empty (Tr. 192-195).
In response to bench questions, Mr. Juso stated the two cylinders were
lying outside of the new warehouse which was under construction. He confirmed that he does not distinguish between full and empty cylinders, but
also indicated that if the cylinder was completely empty, he would not have
issued a citation. A determination can be made to ascertain whether a
cylinder is full or empty and this is done by means of a guage.When not in
use, oxygen cylinders are capped, but acetylene tanks are not made for caps
because the valves are recessed in the top of the bottle. The cylinders were
not in an area where they were being used and they probably had been used
and may have been half ful 1 or empty. O,!ce they are used~ the normal procedure
is to secure them to a wall with a chain around the bottle so that it cannot
fall over (Tr. 195-197).
Inspector Juso stated further that he could not recall whether the
cylinders in question were capped and he made no efort to open the valve to
determine whether they were empty (Tr. 198). He also indicated that oxygen
cylinders "are not that dangerous lying down, but acetylene sure is" (Tr.
199). He also indicated that section 56.16-3 which states "materials that
can create hazards if accidentally liberated from their containers shall be
stored in a manner that minimizes the dangers" could probably have been
cited, but he indicated that the intent of this standard is for application
"more or less" in cases involving chemicals (Tr. 200).

1367

Respondent's Testimony
Robert Pyles testified that he was with the inspector when the citation
was issued. He confirmed that the two cylinders belonged to the contractor
building a warehouse and indicated that they were both capped. The information he obtained from the contractor indicated that they had been used until
they were empty (Tr. 200-201).
On cross-examination, Mr. Pyles stated that the contractor told him the
cylinders were empty after the citation was issued. The cylinders had no
guages on them and were capped and lying on a 60- by 100-foot concrete pad
and they were not bound together (Tr. 202). The fact that they were capped
.does not indicate whether they are full or empty (Tr. 203).
Citation No. 104890 - Petitioner's Testimony
MSHA inspector Theil D. Hill confirmed that he issued the citation in
question after observing an employee using an automatic cutting torch cutting some metal, and while he was wearing safety glasses, he was not wearing
a face shield to prevent particles from coming in on the sides of his face.
Sparks were flying and the employee was not wearing a head shield over his
safety glasses. The condition was abated after the employee was given goggles by the plant superintendent and instructed to wear them (Tr. 205-208).
On cross-examination, Mr. Hill stated that he could recall no conversation witlrthe employee who was using the torch. He identified photographs
of the torch mechanism in question (Exhibits R-10 and R-11) and indicated
that the employee was not wearing goggles or a shield. He recalled that the
employee soughthimout after lunch but did not recall that he said he raised
his goggles in order to see the torch shut-off valve. The inspector confirmed that one cannot see through the goggles and indicated that he has
never operated an automatic torch. He observed no goggles, but two or three
minutes after he called it to the attention of the supervisor, he was told
they were provided and the employee had been instructed to wear them (Tr.
208-213).
Inspector Hill testified further that the safety glasses which were
worn by the employee afforded some measure of protection from particles
coming directly at him, but not from the side or the bottom (Tr. 218).
Respondent's Testimony
Robert Pyles stated that he investigated the citation but was not with
Inspector Hill when he issued it. He determined that the employee saw
Mr. Hill and a company official in the area and when he pulled his goggles
off his hat to reach down and turn the torch valve off, the torch was still
burning but the metal had already been cut through (Tr. 222).

1368

Citation No. -1:0489-2··---PeTitioner's Testimony
MSHA inspector Thiel D. Hill confirmed that he issued the citation in
question after observing that the clinker stockpile was not trimmed properly.
This condition created a 20-foot high overhang and a loader had been working
in the overhang area. It appeared to him that a loaQ.er had been removing
material from the stockpile and had dug out under it, thereby creating an
overhang. The overhang was approximately 8 to 10 feet in length and approximately 20 feet high. The condition was abated by taking the overhang down,
but he does not know how this was done, and when he returned to the
area to abate the citation, the overhang had been taken away (Tr. 223-225).
On cross-examination, Inspector Hill testified that he observed no
equipment used to take material from the stockpile anywhere near the overhang area, and while it rained for 2 days prior, he saw tracks which appeared
relatively fresh. He did not know when material was last taken from the
stockpile prior to his arrival on the scene, and he was unaware that any
records are kept in this regard. The tracks he observed went under the overhang and in the vicinity where the overhang was created. The tracks led him
to believe that the overhang had been created by material being removed by a
machine rather than being washed out by the rain water. However, this makes
no difference since the standard requires that once an overhang is created,
it shall be trimmed (Tr. 225-229).
Respondent's Testimony
Al Simon testified that he was with Mr. Hill when the citation was
issued. He stated that the overhang was created by a wash-out which occurred
a day or two prior to the inspection. Overhangs are normally taken care of
by knocking the lip off from the bottom with a front-end loader or by pushing
it down from the top with a bulldozer. Personnel or equipment are never
placed under an overhang (Tr. 229-231).
In response to bench question, Mr. Simon stated that he advised Mr. Hill
that the overhang had been washed out and that this was the first time he had
observed it. It was immediately knocked down but Mr. Hill later issued the
citation. Mr. Simon did not recall Mr. Hill mentioning the sight of any
tracks and Mr. Simon saw none. He indicated that the last time the area was
worked was the Thursday or Friday before the citation was issued. Material
is normally removed from the stokpile with a front-end loader and the operator is usually seated 25 to 30 feet back from any overhang (Tr. 231- 234).
Fact of Violation - Citation 103839
Respondent argued that a safe means of access was in fact provided in
this case since the location where the crane was parked was no different than
if it had been stopped at one of the gate locations. Respondent maintains
that there was no space between the landing and the crane for one to fall
through and that climbing from the crane through the landing handrail is no
different than opening the gate and walking through (Tr. 119-123).

1369

Respondent moved for dismissal of the citation on the ground that the
inspector did not actually observe anyone leaving the crane at the location
where it was parked, and the motion was taken under advisement at the hearing
(Tr. 238).
Although petitioner concedes that the inspector observed no one leaving
the crane at the location where it was parked, its position is that since
there was no gate at that location, the crane operator had to get off by
climbing through.or over the handrail, and since the inspector apparently
saw no safety belt or line, the operator was not "tied on", and the inspector's assumption, based on what an unidentified mill employee told him, is
sufficient to establish a violation (Tr. 130-132).
Section 56.11~1 requires that a safe means of access shall be provided
and maintained to all working places. The testimony establishes, and the
parties are seemingly in agreement, that the gates provided at the third
floor landing were installed for the purpose of facilitating access to and
from the crane by the operator. Therefore, it seems clear to me that respondent was in compliance with the requirements of the standard since the gates
were in fact installed for that purpose. In fact, the condition described
by the inspector on the face of the citation assumes this the inspector found
that safe access was in fact provided. The alleged violation lies in the
inspector's belief that the crane operator did not use the gate to exit from
the crane on the day he observed the crane parked at a location other than
next to the gate. Since the evidence established that the only way the operator of the crane can leave it is by means of protected walkway and ladder
on top of the crane, I have to assume that this was the method used by the
operator to leave the crane. However, since the crane was not parked by the
gate, I can also assume by a credible inference that the crane operator
exited the crane by either climbing over or through the hand railing located
nest to the crane. The critical question is whether that method of exit is
ipso facto an unsafe act and contrary to the cited standard. I think not.
Since the inspector failed to interview the crane operator, or develop any
evidence as to how he may have exited the crane on the day in question, I
have no basis for determining whether the method used was safe or unsafe.
Since a safe means of access was in fact provided, I conclude and find that
respondent was in compliance and that petitioner has f~iled to provide any
c0mpetent and credible evidence establishing a violation as charged in the
citation. Accordingly; the citation is VACATED.
Fact of Violation - Citation No. 103840
Respondent conceded the fact of violation concerning Citation
No. 103840, and did not dispute the fact that a man was in an unsafe position. Respondent's defense is that he was disciplined and that respondent
could not possibly reasonably prevent an employee from placing himself in
danger by doing an unauthorized act (Tr. 146).
Section 56.11-1 requires that a safe means of access be provided and
maintained to all working places. Since the evidence establishes that the

1370

---· -- -individual was performing some work on the belt it seems clear that his position straddling the belt was at a working place and that his climbing on the
belt and placing himself in such a precarious position was obviously not a
safe means of access to the belt portion that he is working on. I conclude
and find that the petitioner has established a violation and the citation is
AFFIRMED.

Gravity
· The respondent coneedes that the individual in question was in a hazardous and dangerous position on the belt and I find that the violation is
serious and exposed the man to serious injury since the belt was running.
Negligence
Respondent has established that the individual who was on the belt acted
contrary to respondent's safety rules and policies and that his positioning
himself astride a moving belt was an unathorized act. Under these circumstances, I cannot conclude that the respondent was negligent and I do not
believe that as a general rule close supervision of an· employee can prevent
an employee from performing a foolhardy act in complete disregard for his own
safety.
Fact of Violation - Citation No. 103844
Petitioner argued that the intent of the standard cited is to secure all
cylinders regardless of whether they are full or empty (Tr. 199). Respondent
takes the position that petitioner offered no proof that the cylinders were
not safe, and maintains that since they were capped there is no proof that
they were not empty. Further, respondent argues that if the cylinders were
empty, admittedly, they were safe (Tr. 198).
Section 56.16-5 requires that compressed and liquid gas cylinders be
securred in a safe manner. Petitioner has established that the cylinders in
question were not secured but were in fact lying free a~d unsecured. Respondent does not dispute this fact. The standard cited makes no distinction
between full or empty cylinders and respondent's defense in this regard is
rejected. The citation in AFFIRMED.
Gravity
The inspector failed to determine whether the cylinders were full or
empty. Under the circumstance, I conclude that petitioner has not established that the violation presented a serious hazard. Accordingly; I find
that the violation is nonserious.
Negligence
The evidence establishes that the two cylinders in question were the
property of a contractor who was performing some construction work. Petitioner presented no evidence that respondent knew or should have known that

1371

the cylinder-s- we~e·not-securred. Under the circumstances, I can only conclude that respondent was not negligent.
Fact of Violation - Citation No. 104890
Respondent's defense to this citation rests on its assertion that at the
time in question the employee who was using the cutting machine had protective glasses and that he was finished cutting and was simply turning off the
cutting machine valve when the inspector observed him (Tr. 223).
Section 56.15-7 requires that face-shields or goggles be worn when welding or cutting is taking place. The inspector's testimony that the employee
in question was wearing ordinary safety glasses, with no protection to prevent particles from striking him from the side or beneath the glasses, is
'unrebutted by the respondent. While the use or ordinary safety glasses may
have afforded some protection for the employee, it seems clear from the evidence presented that the inspector observed no goggles or a shield being worn
or in the possession of the employee at the time he observed him working at
the cutting machine. Although Mr. Pyles testified to his after-the-fact
investigation, it is clear that he was not present on the day in question.
Further, although the inspector indicated that he called the infraction to
the attention of a supervisor on the scene and that the supervisor told him
he provided the employee with goggles to abate the .citation, the supervisor
did not testify, and neither did the employee. In these circumstances, I
conclude and find that petitioner has established a violation and the citation is AFFIRMED.
Gravity
The inspector testified he observed sparks flying while the employee
in question was at the cutting machine, and failure to wear goggles or a
protective shield exposed the employee to a potential injury. I find that
the violation is serious.
Negligence
I find that the violation resulted from respondent's failure to exercise
reasonable care to prevent the cited condition. The inspector testified
that a supervisor was in the area and I conclude that closer supervision may
have detected the infraction before the inspector arrived on the scene. I
find the citation resulted from ordinary negligence.
Fact of Violation - Citation No. 104892
Section 56.9-61 requires that stockpiles be trimmed to prevent hazards
to personnel. Respondent's defense seems to be that the overhang observed by
the inspector was created by natural causes, namely, heavy rains which
occurred for 2 days prior to the inspection. However, the standard makes no
distinction as to whether a hazard is created by natural causes or by a
machine such as a loader. Further, respondent has not rebutted the fact that

1372

an over-hang did in fact exist. As a matter of fact, Mr. Simon testified
he observed the over-hang and had it knocked down immediately. I find that
petitioner has established a violation and the citation is AFFIRMED.
Gravity
I find no credible evidence to support a conclusion that anyone was
exposed to the hazardous over-hang and I accept the testimony of Mr. Simons
that a loader operator, in the normal course of loading, is positioned in a
manner which removes him from any such hazard. Absent any evidence that men
were working under the over-hang on the day in question, I can only conclude
that the condition cited was nonseriou~ and that is my finding.
Negligence
I find Mr. Simon's testimony that he observed the over-hang for the
first time at the time the inspector observed it and that he took immediate
corrective action to be credible. I also accept his testimony that he
observed no tracks or equipment in the area at the time the citation issued.
Under the circum~tances, I can find no credible evidence or testimony to support a conclusion that respondent was negligent, I find that there is no competent or credible evidence indicating any negligence by the respondent and
that is my finding.
Findings and Conclusions Applicable to Both Dockets
History of Prior Violations
Petitioner asserts that respondent has an "average" history of prior
violations, but submitted no computer printout or other evidence as to the
extent of this history (Tr. 236). Petitioner conceded that after consulting
with the inspectors, no great number of violations have been issued at the
mining operation in question, and petitioner further conceded that under the
1977 Act, respondent has no prior history of violations at the mine in question since the inspection in question was the first one under the new law
at the facility (Tr. 236).
I conclude that for purposes of civil penalty asse~sments in these proceedings, respondent has no prior history of violations which would warrant
any increase in the penalty assessments imposed by me for the citations which
have been affirmed.
Size of Business and Effect of Civil Penalties on Respondent's
Ability to Remain in Business
The parties agreed that the mine in question employed 162 employees and
that annual production is 600,000 tons of marl, the basic substance used to
produce cement, and that annual production for the respondent as a whole was
some four million tons. I conclude that respondent is a large operator and
that its mining operation at the quarry and mill in question was medium in
scope.

1373

Respondent does not contend that the assessment of civil penalties will
adversely affect
ability to remain in business and I conclude they will
not.

-ns

Good Faith Compliance
The evidence adduced establishes that respondent demonstrated good faith
abatement in correcting all of the citations in issue in these proceedings.
Further, with regard to citation Nos. 104892, 103844, and 103821, the evidence establishes that they were rapidly abated, and this fact has been taken
into consideration in the civil penalties assessed.
Penalty Assessments
On the basis of the foregoing findings and conclusions made in these
proceedings, civil penalties are assessed for each citation which has been
affirined as follows:
Docket No. SE 79-16-M
Citation No.

Date

103821
103824
103827
103830

7/25/78
7/25/78
7/25/78
7/25/78

30 C.F.R. Section-

Assessment

56.9-87.
56.14-1
56.14-1
56.14-1

$ 35
50
50
50

On the basis of the foregoing findings and conclusions made in these
proceedings, Citation No. 103843, July 27, 1978, is VACATED.
Docket No. BARB 79-266-PM
Citation No.

Date

103840
103844
104890
104892

7/26/78
7/27/78
7/27/78
7/27/78

30 C.F.R. Section

Assessment

56.11-1
56.16.5
56.15-7
56.9-61

$ 50
20
35
15

On the bas is of th.e foregoing findings and cone lus ions made in these
proceedings, Citation No. 103839, July 26, is VACATED.
ORDER
The respondent is ORDERED to pay the civil penalties assessed by me in
these proceedings, in the amount shown above, within thirty (30) days of the
date of these decisions.

Administrative Law Judge

1374

Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 u.s. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Karl w. McGhee, Esq., Stevens, McGhee, Morgan & Lennon, P.O. Drawer 59,
Wilmington, NC 28401 (Certified Mail)

1375

FEDER-AL -MINE- SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 1 0 1980

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. PENN 79-31
A/O No. 36-05018-03018

Petitioner

v.
Cumberland Mine
U.S. STEEL CORPORATION,
Respondent
DECISION
ORDER TO PAY
Appearances:

David Street, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner,
MSHA;
Louise Symons, Esq., U.S. Steel Corporation, for Respondent,
U.S. Steel Corporation.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed
by MSHA against the U.S. Steel Corporation. A hearing was held on May 14,
1980.
At the hearing, the parties agreed to the following stipulations
(Tr. 4):
(1) The operator is the owner and operator of the subject mine;
(2) the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977;
(3) I have jurisdiction of this case;
(4) the inspector who issued the subject citation was a
duly authorized representative of the Secretary;
(5) the inspector and other witnesses who will testify
are accepted as experts generally in mine health and safety;

1376

~6) imposition of any penalty herein will not affect the
operator's ability to continue in business;

(7) the alleged violation was abated in good faith;
(8) the operator's history of prior violations is
average;
(9) the operator is large in size.
At the hearing documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 7-201). 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. 201).
A decision was rendered from the bench setting forth findings and conclusions
with respect to the alleged violation (Tr. 214-220).
BENCH DECISION
The bench decision is as follows:
This case is a petition for the assessment of a civil
penalty. The alleged violation is of 30 CFR 75.523 which
provides as follows:
An authorized representative of the Secretary may require in any mine that electric face
equipment be provided with devices that will
permit the equipment to be de-energized quickly
in the event of an emergency.

Also relevant to this case is section 75.523-l(b) which
provides:
Self-propelled electric face equipment that is
equipped with a substantially constructed cab which
meets the requirement of this part, shall not be
required to be provided with a device that will
quickly deenergize the tramming motors of the equipment in the event of an emergency.
Further, section 75.1710-(b)(2) states that:
For purposes of this section, a cab means a
structure which provides overhead and lateral protection against falls of roof, rib, and face, or
rib and face rolls.

1377

Finally, section 75.1710-(c)(5) provides as follows:
Lateral protection, such as that afforded by a
substantially constructed cab, may also be necessary
where the occurrence of falls of rib and face, or rib
and face rolls is likely.
The citation in issue, dated October 6, 1978, sets forth
that panic bars were not maintained properly in that the operator had to reach for the bar from his operating position to
actuate the device on the Jeffrey ram cars Serial Numbers
36823 and 36820, operating in the South Main's right section.
The citation had a termination date of October 13, 1978. However, on October 19, 1978, November 22, 1978, January 5, 1979,
January 12, 1979, January 24, 1979, and January 29, 1979,
extensions of time were granted in order to allow the operator time to devise a new design for the panic bars on the two
ram cars. On February 5, 1979, the citation was_ terminated
on the basis that the new panic bar design met the requirements of the regulation.
The primary issue presented 1s whether a violation
exists. First, the operator has argued that the Jeffrey ram
car in issue had a cab, which under the regulations relieves
it of the necessity of having a panic bar. Much testimony
was taken on this issue. The operator maintained that the
manufacturer of the Jeffrey ram car had received a letter
from the the Mining Enforcement and Safety Administration
(predecessor to the Mine Safety and Health Administration)
stating that its canopies on the ram cars constituted cabs.
The testimony from MSHA witnesses was directly to the
contrary. Unfortunately, the letter was not produced. During the course of the hearing, I expressed distress at the
operator's failure to produce the letter. The petition.for
civil penalty was filed over 10 months ago and the notice of
hearing was issued 3 months ago. The operator has had ample
opportunity to obtain the letter from the Jeffrey Manufacturing Company or through discovery procedures from the Mine
Safety and Health Administration itself. Under the circumstances, I cannot accept testimony from the operator's witnesses that when confronted with this letter, responsible
MSHA personnel refused to follow it. If such a letter exists,
the operator should have produced it. The consequences of
the failure to do so rest with the operator. I must therefore, accept the testimony from all the MSHA witnesses which
was consistent to the effect that upon inquiry, they were
advised that the canopies on these ram cars were never
approved as cabs. Accordingly, the exemption from the
requirement of a panic bar, where a cab is present, cannot
be applied on the record made in this case.

1378

Moreover, I accept the inspector's testimony that he
made an independent judgment that the canopy on the ram cars
did not provide sufficient lateral protection to constitute
a cab. On this basis also, the exemption could not apply.
I have not overlooked the operator's allegation that
panic bars have not been required on other Jeffrey ram cars
in other mines. However, only the instant matter is before
me and I can render a decision only on the basis of the
facts which are presented to me. Here the evidence regarding
a purported nationwide situation consists only of a few statements. I cannot decide this case on such a basis.
Section 75.523 requires that the electric face equipment
be provided with devices that will permit the equipment to be
deenergized "quickly" in the event of an emergency. I accept
the testimony of the MSHA inspector and the MSHA electrical
inspector to the effect that under certain circumstances with
a disapproved panic bar being used, the operator of the ram
car would not be able to reach the panic bar. For instance,
if the operator were struck on the right side of his back so
that his left arm were pressed against the contactor box, he
would not be able to reach the panic bar. Also, MSHA testimony indicated that the operator could hit the contactor box
without hitting the panic bar so as to move the bar enough to
activate it. Other situations were also described. I accept
such testimony and on the basis of it decide that the cited
equipment could not be deenergized "quickly" within the meaning of the regulations. On this basis, I find the violation
existed.
I also note in this connection the operator's mine superintendent expressed the view that th'e redesigned bar, which
was accepted as adequate abatement, was in certain respects
an improvement over the original panic bar. A great deal of
time was spent at the hearing on the MSHA underground manual
dealing with section 75.523 and following sections. The former Board of Mine Operations Appeals of the Department of
Interior held that the manual does not have the status of
official regulations. Kaiser Steel Corporation, 3 IBMA 489,
at 498 (1974). In any event, as set forth above it is not
necessary or appropriate to resort to the manual in order to
decide this case. I would however, state that the cited panic
bar does not satisfy either of the policies on pages 363 or
364 of the manual. Moreover, in my opinion, the reference to
figures 3, 4 and 5 on page 364 of the manual is illustrative
rather than exclusive.
Once again, based upon the mandatory standard itself and
the language set forth therein, I find a violation existed.

1379

I find the violation was of moderate gravity because although
an injury could have been serious, the probability of its
occurrence was unlikely.
Most significantly, I find the operator was not negligent. The record shows that the operator did its best in
installing the original panic bar which eventually was the
subject of the ·citation. This is to me a most significant
.factor. There is in this case no question of the operator's
good faith.
The parties have stipulated that the operator is large
in size, has an average history and the imposition of a
penalty will not affect its ability to continue in business
and that abatement was undertaken in good faith.
Bearing in mind all these factors, especially the operator's lack of negligence and its good faith attempt to deal
with this situation, only a most nominal penalty is appropriate. Accordingly a penalty of one dollar ($1) is imposed.
AFFIRMATION AND AMENDMENT OF BENCH DECISION
The foregoing bench decision is AFFIRMED except that it is AMENDED
to provide that the penalty amount be $125. A penalty of $125 is more
consistent with the moderate gravity than the amount set at the hearing.
ORDER
The operator is ORDERED to pay $125 within 30 days from the date of
this decision.
-

.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
David Street, Esq., Office of the Solicitor, U.S. Department of Labor,
Rm. 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Louise Symons, Esq., U.S. Steel Corporation, 600 Grant Street,
Pitt.sburgh, PA 15230 (Certified Mail)

1380

FEDERAL_'M-INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 1 0 1980

Civil Penalty Procee~ings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 79-48-M
A.O. No. 16-00512-05005

Petitioner
v.

Docket No. DENV 79-161-PM
A.O. No. 16-00239-05001

MORTON SALT DIVISION,
MORTON-NORWICH PRODUCTS, INC.,
Respondent

Docket No. DENV-79-423-PM
A.O. No. 16-00512-05003
Weeks Island Mine & Mill

DECISIONS
Appearances:

Douglas N. White, Attorney, U.S. Department of Labor,
Dallas, Texas, for the petitioner;
James M. Day, Esq., Washington, D.C. for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 820(a). Respondent filed timely answers contesting
the alleged violations and its defense is based on the assertion that the
citations for which civil penalties are sought were in fact committed by
an independent contractor, Frontier-Kemper Contractors (FKC), and that
petitioner's refusal to cite the contractor is arbitrary, capricious,
unreasonable, and contrary to law.
After initial discovery, exchange of interrogatories, and rulings by
me on several motions filed by the respondent, the cases were docketed for
hearings at Baton Rouge, Louisiana, June 5, 1980, and the parties were so
advised by notice of hearings issued by me on March 11, 1980. Subsequently,
the parties advised me that the cases could be disposed by stipulation and
agreement without the necessity for an evidentiary hearing. Under the circumstances, I issued an order on April 29, 1980, continuing the hearings

1381

and directed the-parffes-to-submit their stipulations and arguments in
support of their respective positions. Subsequently, by joint motion and
stipulation filed May 19, 1980, the parties moved for summary decisions
in two of the dockets, CENT 79-48-M and DENV 79-423-PM, and filed a settlement proposal in Docket No. DENV 79-161-PM.
Issues
'!be principal issues presented in these proceedings are (1) whether
respondent has violated the provisions of the Act and implementing regulation as alleged in the proposals for assessment of civil penalties filed,
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. 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. '!be Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801 et 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 seq.
Discussion

Stipulations
'!be parties are in agreement that there is no genuine issue as to any
material fact in these proceedings and that all pertinent facts have been
agreed to by stipulation, pertinent portions of which. are as follows:
1. Respondent, Morton Salt Division, Morton-Norwich Products, Inc.,
is the operator of salt mining operations at Weeks Island, Louisiana, the
products of which enter and affect conunerce, and respondent is an operator
as defined under the Act.
2. Frontier-Kemper Contractors ("FKC") is an independent contractor
hired by Morton to perform services and construction; namely, to sink
two shafts and perform certain development work for a new mine at Weeks
Island.

1382

3. During the course of an inspection of Morton's Weeks Island mining
operations, MSHA- is-sued-the subject citations to Morton based on violations
of mandatory health and safety standards in 30 C.F.R~ Part 57.
4. All violations specified in the citations were the result of acts
or omissions committed by FKC employees during the construction of the new
mine shafts in performance of development work.
5. The only employees exposed to the violations set forth in the citations were employees of FKC; no Morton employees were exposed to the hazards
caused by these violations.
6.
by FKC.

All violations specified in the citations were corrected or abated

7. Morton did not control the day-to-day activities of FKC, and the
contract between Morton and FKC specified that FKC would control the details
of the work.
8. All of the citations were issued by MSHA against Morton and the proposed civil penalty assessments for said citations were--also issued against
Morton.
9. Morton agrees that the conditions specified in the citations constituted vfolations of the mandatory health and safety standards specified
in each respective citation.
10. Although the parties agree that the facts concerning negligence
and gravity, as set forth in attachment F to the stipulation are correct,
Morton denies that it was responsible for the acts of omissions which led
to these violations.
11. The parties agree that petitioner's proposed assessments are
proper and appropriate under the conditions which existed at the time the
violations were committed and that said proposed penalties took into
consideration the six statutory criteria set forth in the Act. Nevertheless, Morton asserts that such penalties should be assessed against FKC
and not against Morton.
12. The size of Morton for the year preceding the issuance of the
subject citations (1977) was 2,677,189 man-hours worked. The size of the
Week Island Mine & Mill for the year preceding the issuance of the subject
citations (1977) was 4,504,918 man-hours worked.
13. For the period prior to March 1978, the subject mine had had no
assessed violations and no inspection days. For the period preceding August
1978, the subject mine had eight assessed violations and had had 31 inspection days. For the period preceding October 1978, the subject mine had
nine assessed violations and had had 37 inspection days. These facts are
submitted as a stipulation of the history of violations as said history
existed at the time the citations were issued.

1383

14. A high degree of good faith was exhibited with respect to all of
the citations in that--eaclr (ff- the violations were corrected and abated
within the specified time and rapid compliance was achieved.
15. Payment of the proposed assessed penalties will not adversely
affect Morton's ability to continue in business.
Findings and Conclusions
The Independent Contractor Issue
Respondent takes the position that the citations in these proceedings
should have issued to the independent contractor and that it is improper and
contrary to law to cite the respondent owner-operator for the acts attributable to the contractor. Further, respondent's attempts to interplead the
contractor as a party-respondent in these proceedings and its requests that
I accept the contractor's agreement to pay the civil penalties so that the
citations will not be part of respondent's history of violations have all
been rejected by me and my rulings in this regard are a matter of record.
It seems clear to me from the facts presented in these proceedings that
at the time the citations were issued and the petitions for assessment were
filed, MSHA's enforcement policy was that owner-operators were liable for the
violations of their independent contractors. This policy of enforcement has
been affirmed by the Commission, Old Ben Coal Company, VINC 79-119 (October 29,
1979), and Monterey Coal Company, HOPE 78-469 and 78-476 (November 13, 1979),
and I conclude that these decisions are controlling and d.ispositive of the
independent contractor defense raised by the respondent in these proceedings.
Accordingly, respondent's defense in this regard is again rejected, and I
conclude and find that respondent is liable for the citations and the resulting civil penalties assessed for the citations in issue in these proceedings.
Although I agree with many of the arguments stated by respondent's counsel in
his posthearing brief filed on June 4, 1980, concerning MSHA's rigid enforcement policy concerning contractors and have stated my position on this issue
in a number of "independent-contractor" decisions, I am constrained to follow
the present and controlling decisions of the Commission on this issue.
In view of the foregoing, respondent's motions for reconsideration of
my previous rulings concerning its motion to dismiss, to implead the contractor as a third-party respondent, and to assess the penalties imposed
against the contractor rather than the respondent are DENIED, and my previous rulings and reasons of record for such denials are herein REAFFIRMED
and incorporated by reference.
Docket No. CENT 79-48-M
This docket deals with the following citations:
Citation No.

Date

30 C.F.R.
Section

156452

10/ 18/78

57.17-10

1384

10/ 18/7 8
10/18/78
10/18/78
10/19/78
10/19/78
10/19/78
10/19/78
10/19/78
10/23/78
10/24/78

156453
156454
156547
156455
156456
156508
156510
156551
156553
156509

57.17-10
57.19-100
57.17-10
57.12-16
57.12-16
57.9-40(c)
57.9-40(c)
57.3-22
57.9-40(c)
57.19-120

Fact of Violations
Aside from the independent. contractor defense advanced by the respondent
in ·these proceedings, respondent does not dispute the fact that the conditions or practices described by the inspectors on the face of the citations
issued in these proceedings constitute violations of the cited mandatory
safety standards. Accordingly, I find that the fact of violation as to each
of the citations enumerated above has been established and they are all
AFFIRMED.
Gravity and Negligence
The parties stipulated as follows with respect to the questions of
gravity and negligence:
Citation
Number

Gravity

Negligence

156452

Only one employee exposed;
improbable that an injury
would result; no lost work
days. expected

Low ordinary negligence;
failure to assure that
all employees had their
lamps underground

156453

Only one employee exposed;
improbable that accident
would occur; no lost work
days expected

Low ordinary negligence;
lack of cap lamp could
have been observed

156454

One employee exposed;
Low ordinary negligence;
serious injury could result; superintendent could have
improbable that accident
seen condition
would occur because of
· other safeguards

156547

One employee exposed;
Power failure could make
it difficult for employee
to see how to get to safe
location; serious injury
could result

1385

Ordinary negligence; condition
was obvious to supervisor

156455

Two employees exposed;
permanently disabling
injury could result;
improbable that accident
would occur

Low ordinary negligence;
supervisors should have
assured that power was
turned off

156456

More than two employees
exposed; minor injuries
could result; very improbable that accident would
occur

Low ordinary negligence;
electrical switches were
off, but supervisor had
not assured of lock-out

156508

Two employees exposed;
lost-time injury could
result; accident would
probably occur

Very little.negligence;
violation was not predicted and employees were
violating safey rules

156510

Two employees exposed;
lost-time injury could
result; probable that
accident would occur

Supervisor may have been
aware; actions were in
violation of safety rules

156551

One employee exposed;
lost-time injuries could
result; probable that
accident could occur

Low ordinary negligence;
violation was in area which
was obvious to supervisors

156553

One employee exposed;
lost-time injuries could
result; probable that
accident could occur

Low ordinary negligence
employee was violating
safety rule

156509

Up to 20 emplo1ees exposed;
serious injuries could
re-sult; probable that
accident could occur

Supervisor conducted
inspections of shaft;
however, provisions
were not made to check
areas which were not
clearly visible

Based on the stipulations by the parties, I conclude and find that all
of the citations in question were serious and that each resulted in ordinary
negligence. In assessing the penalties for the citations, I have considered
the fact that all of the citations resulted from acts committed by the
independent contractor who had exclusive control over the worksite. I have
also considered the fact that respondent's employees were not exposed to any
of the hazards resulting from the cited conditions and practices. In these
circumstances, I cannot conclude that the contractor's negligence should be
imputed to the respondent or that the assessments levied against the respondent should be increased as a result of acts committed by the contractor.

1386

Docket No. DENY 79_-:A23=-P-MThis docket deals with the following two citations:
Citation No.

Date

30 C.F.R.
Section

153272
156490

3/29/78
8/ 10/78

57.5-5
57.6-30

Fact of Violations
Respondent concedes that the conditions described by the inspectors who
issued the citations in question constitute violations of the cited mandatory health and safety standards. Accordingly, I find that the fact of violation has been established as to each citation and they are AFFIRMED. I
take note of the fact that respondent still disputes the applicability of
30 C.F.R. § 57.5-5 to salt dust, and has reserved its right to challenge the
application and validity of that standard in other proceedings which may be
brought against it by the petitioner.
Gravity and Negligence
The parties stipulated as follows with respect to the factors of
gravity and negligence:
Citation
Number

Gravity

Negligence

153272

One employee exposed;
improbable that illness
would result; effects of
salt dust are disputed

Hazard was not easily
ascertained; no previous
overexposure

156490

One to four employees
exposed; serious injuries
or death could result if
explosion occurs

Should have been readily
observed by supervisors;
area is used during_each
shift

Based on the stipulations by the parties, I conclude and find that the
citations in question were serious and that each resulted from ordinary
negligence. However, as indicated in the previous dockets, I cannot conclude that the contractor's negligence should be charged to the respondent.
Size of Business and Effect of Civil Penalties Assessed on the Respondent's
Ability to Continue in Business
Based on the information presented as part of the stipulated facts, I
conclude that respondent is a large operator and find that the civil penal ties assessed will not adversely affect respondent's ability to remain
in business (applicable to both Docket Nos. CENT 79-48-M and DENV 79-423-PM).
I also take note of the fact that the parties are in agreement that the
civil penalties proposed by the petitioner in these proceedings are proper

1387

and appropriate under the conditions which existed at the time the violations were committed and that the proposed assessments took into account
the six statutory criteria set forth in section llO(i) of the Act.
Good Faith Compliance
The parties stipulated that a high degree of good faith was exhibited
with respect to the abatement of the cited violations and that each condition or practice cited .as a violation was corrected and abated within the
specified time and rapid compliance was achieved. I adopt this stipulation
as my finding with respect to Docket Nos. CENT 79-48-M and DENV 79-423-PM.
History of Prior Violations
Based on the stipulated prior history of violations by the respondent
during all times pertinent to these proceedings (Stipulation No. 13 above),
I cannot conclude that respondent's prior history is such as to warrant any
increase in the assessed civil penalties levied in Docket Nos. CENT 79-48-M,
and DENV 79-423-PM.
Docket No. DENV 79-161-M
This docket concerns the following citations:
Citation

Date

30 C.F.R.
Section

3/16/78
3/21/78
3/28/78
3/28/78

57.11-58
57.15-7
57.18-10
57.11-12

/

153284
153264
153265
153325

By order issued on April 24, 1979, I dismissed that portion of the petitioner's civil penalty proposal which sought civil penalties against respondent Morton Salt for Citation Nos. 153264, 153265, and 153325, and my reasons
for the dismissal are set forth in detail in the order which is a matter of
record in these proceedings. A subsequent appeal taken by the petitioner
with respect to my dismissal of its pleadings was denied by the Commission
on June 4, 1979, on the ground that my order was not a final decision and
that the appeal was premature.
With respect to the remaining Citation No. 153283, issued March 16,
1978, alleging a violation of 30 C.F.R. § 57.11-58, the parties now seek my
approval for a proposed settlement disposition for the citation.
Respondent Morton Salt has accepted liability for this violation and
has agreed to pay the full initial assessment of $34 in satisfaction of the
citation.
After consideration of the argt.Dilents presented in support of the proposed settlement disposition of Citation No. 153283, including the information submitted by the parties concerning the six statutory factors set forth

1388

in section H-0( H- -of-tne Act, I conclude and find that the proposed settlement is reasonable, and pursuant to 29 C.F.R. § 2700.30, IT IS APPROVED.
ORDER
Respondent is ordered to pay a civil penalty in the amount of $34 in
satisfaction of Citation No. 153283, payment to be made within thirty
(30) days of the date of the decision and order. With respect to the
remaining three citations, my previous dismissal of petitioner's proposed
assessments as noted above is hereby REAFFIRMED.
Penalty Assessments
On the basis of the foregoing findings and conclusions made in
Dockets No. CENT 79-48-M and DENV 79-423-PM, and after review of all of
the circumstances, including the conditions and practices cited as violations, I find that the initial assessments proposed by the petitioner are
appropriate and I accept them as the civil penalties which should be
assessed in the proceedings, and they are as follows:

Docket No. CENT 79-48-M
Citation No.

Date

30 C.F.R.
Section

156452
156453
156454
156547
156455
156456
156508
156510
156551
156553
156509

10/ 18/7 8
10/18/78
10/ 18/78
10/ 18/78
10/19/78
10/19/78
10/19/78
10/ 19/78
10/19/78
10/23/78
10/24/78

57.17-10
57.17-10
57.19-100
57.17-10
57.12-16
57.12-16
57.9-40(c)
57.9-40(c)
57.3-22
57.9-40(c)
57.19-120

Assessment
$44
44
84
44
52
38
72
84
52
72
66

Docket No. DENV 79-423-PM
Citation No.

Date

153272
156490

3/29/78
8/10/78

30 C.F.R.
Section
57.5-5
57.6-30

1389

Assessment
$48
98

----·

-

--

ORDER

The respondent IS ORDERED to pay the civil penalties assessed by me in
these proceedings, in the amounts shown above, within thirty (30) days of
the date of these decisions. Upon receipt of payment by MSHA, these proceedings are dismissed.

ift.:14outr'!

Administrative Law Judge

Distribution:
Douglas N. White, Esq., U.S. Department of Labor, Office of the
Solicitor, Suite 501, 555 Griffin Square Bldg., Dallas TX 75202
(Certified Mail)
James M. Day, Esq., Cotten, Day & Doyle, 1899 L St., NW., Washington,
DC 20036 (Certified Mail)

1390

FEDERAL-· MtNc SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 1 O 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. YORK 79-68-M
A/O No. 19-00553-050031

Petitioner

v.
Weymouth Plant
MARSHFIELD SAND & GRAVEL, INC.,
Respondent
DECISION
ORDER TO PAY
Appearances:

David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, Boston, Massachusetts, for Petitioner, MSHA;
Charles T. Callahan, Esq., Hutchings, Kopeman and Callahan,
Boston, Massachusetts, for Respondent, Marshfield Sand and
Gravel, Inc.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed by
MSHA against Marshfield Sand and Gravel, Inc. A hearing was held on May 29,
1980.
At the hearing, the parties agreed to the following stipulations (Tr.

3-4):
1. The operator is the owner and operator of the
subject facility;
2. The operator and mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977;
3.

I have jurisdiction of this case;

4. The inspector who issued th.e subject citations was a
duly authorized representative of the Secretary;
5. True and correct copies of the subject citations
were properly served upon the operator;

1391

6.

The alleged violations were abated in good faith;

7. History of prior violations is noncontributory
since the Solicitor does not have available at this time a
printout of the history of prior violations;
8. The operator is very small in size, employing five
to twelve men, seasonally, at the subject facility.
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 6-93). At the conclusion of
the taking of evidence, th~ parties waived the filing of-written briefs,
proposed findings of fact, and conclusions of law. Instead, they agreed to
~ke oral argument and have a decision rendered from the bench (Tr. 124). A
decision was rendered from the bench setting forth findings, conclusions,
and determinations with respect to the alleged violations (Tr. 124-131).
BENCH DECISION
The bench decision is as follows:
This case is a petition for the assessment of two civil
penalties. The first alleged violation is of section 56.11-1
of the mandatory standards which provides as follows: "Safe
means of access shall be provided and maintained to all working places."
The second alleged violation is of section 56.14-35 of
the mandatory standards which provides as follows: "Machinery
shall not be lubricated while in motion where a hazard exists,
unless equipped with extended fittings or cups."
Both alleged violations arise out of the same accident
which occurred at the Weymouth plant of the Marshfield Sand
and Gravel Company. Mr. David Colter was the safety director
and safety supervisor of the Weymouth plant and of the
Marshfield plant of the Marshfield Sand and Gravel Company.
In this position he exercised supervision over everyone at
both plants, including the foreman.
At the Weymouth plant, the Mine Safety and Health Administration had approved the use of a bucket truck (also called
a cherry picker) to lubricate a double Telsmith screw conveyor. In accordance with this approval lubrication was to
be done only on Saturdays when the machinery was not in
operation. However, on Tuesday, December 5, 1978, the safety
director sent the bucket truck from the Weymouth plant to the
Marshfield plant. Thereafter, because the gears on the
Telsmith screw conveyor at the Weymouth plant were noisy and
because production was behind that day since two men were off,

1392

the safety director himself used a front-end loader to reach
the screw conveyor and attempted to grease the screw conveyor
while it was in operation. In so doing, the safety director
became caught in the machinery and suffered grievous injuries
including partial loss of his left arm.
I find first that a violation of Section 56.11-1
occu~red. I accept the inspector's testimony that generally
use of a front~end loader presents hazards which are not presented by a bucket truck including the danger of dropping in
the event of a hose failure. On this basis I conclude that"
the front-end loader did not constitute safe access and that
therefore there was a violation. I further take note of the
inspector's testimony which expressly stated that t'he hazards
associated with the use of the front-end loader were not
material to the accident which occurred and that this accident could have happened even if the approved bucket truck
had been the means of access. However, because the use of a
front-end loader generally presents the danger of-injury,
although it did not do so here, I conclude that the violation of section 56.11-1 was serious.
The testimony of the safety director makes clear that
he was in fact lubricating the screw conveyor while it w~s
in motion. Also, the testimony from the inspector, although
requiring the drawing of certain inferences, was to the same
effect. The actions of the safety director constituted a
violation of section 56.14-35. Moreover, since this violation directly caused the safety director's severe injuries,
it was extremely serious.
The Commission has held that,the operator is liable for
violations of the mandatory standards without regard to fault
and that when its employees fail to comply with the standards
the operator's efforts towards enforcement are irrelevant
with respect to the issue of liability. United States Steel
v. Secretary of Labor, Docket No. PITT 76-160-P, dated
September 17, 1979. Also, the Commission has determined that
a company cannot be relieved of liability where its foreman
was killed when a front-end loader with an inoperable backup
alarm backed over him, even though the deceased foreman had
known the backup alarm was not working and had ordered the
loader to commence operation. In that case the Commission
expressly rejected the argument that the foreman, not the
company, committed the violation. The Commission stated that
the actions of the foreman cannot be separated from those of
the company. Secretary of Labor v. Ace Drilling Coal Company,
Inc., Docket No. PITT 75-1-P, dated April 24, 1980. Accordingly, it is clear that the operator in this case is liable
for both violations, one of which was serious and the other
of which was extremely serious.

1393

The next matter, and the most difficult one to be considered in determining the appropriate amount of penalties
to be assessed, is negligence. I previously have had occasion to consider situations analogous to that presented here.
In Secretary v. Consolidation Coal Company, Docket No. VINC
79-25-P, dated December 1, 1978, petition for discretionary
review denied January 9, 1979, I stated that I did not
believe that with respect to the issue of negligence the
operator could be held responsible for the unpredictable
·behavior of a fatally injured employee which was contrary to
the usual and accepted manner of working in such situations
as well as contrary to what the dec,edent himself had done
before. In addition, in Mining Enforcement and Safety Administration v. NAACO Mining Company, Docket No. VINC 76-99-P,
dated December 17, 1976, after reviewing many precedents on
the subject, I stated as follows with respect to a violation
committed by a supervisory employee which resulted in his
death:
It,is one thing to hold the operator accountable for the negligence of one of its supervisors in
failing to perform the regular duties required of him
by the position in which the operator has placed him,
especially where failure to perform could affect
miners who are working under him by virtue of the
supervisory position in which the operator has placed
him. It is quite another thing to hold the operator
responsible for the negligence which is part of the
unexpected and inexplicable behavior of one of its
supervisors, whose actions create the potential of
harm and result in harm only to himself but not to
any of the men under his supervision.
I believe this case falls within the unique circumstances
set forth in the foregoing two decisions. The safety director
was in charge of the Weymouth plant. Everyone working there
was under his supervision and authority. In fact,_he was
responsible for safety and nothing in the record sugg'ests that
in the past he had been anything other than an exemplary
employee. The uncontradicted evidence demonstrates that he
was the one that sent the bucket truck away from the Weymouth
plant so that only the front-end loader remained. Further,
the safety director testified that one man had the day off and
another had the afternoon off, so that they were short handed,
but by virtue of his position, the safety director was the
one to give permission for these people to take time off.
No one senior in rank to the safety director was at the site.
Indeed, only the owners of the plant were senior to him and
they were at the company offices some twenty-five miles away.

1394

Therefore, at least to some extent the safety director
himself created the conditions which led him to employ
unaccepted and unsafe procedures. In addition, the safety
director expressly admitted that he knew that only the bucket
truck was approved by the Mine Safety and Health Administration as safe access and that all employees were aware that
machinery should not be lubricated while in motion. Nevertheless, contrary to everything he knew, and contrary to everything he presumably instructed his own subordinates, he used
a nonapproved method of access and attempted to grease the
screw conveyor while it was in motion.
I recognize that an operator acts only through its
employees, supervisory and nonsupervisory. I am extremely
sensitive to the fact that enforcement of the Act would be
rendered meaningless if the negligence of an individual
employee were not attributed to the operator except in the
most extraordinary of situations. Nevertheless, I believe
this is such an extraordinary situation. This is so because
the actions of the safety director, duly trained and e~peri
enced, were so aberrational and unpredictable and were in no
way attributable to conduct or conditions created by others
placed in authority by the operator. Accordingly, I believe
it would be manifestly unfair to impute the individual supervisor's negligence to the operator, where harm came to no
other individual. I cannot see that more effective enforcement of the Act would be served by the imputation of negligence in such a situation. To be sure, this is a highly
unusual situation which most probably should not be extended
further but each case must be judged on its own facts. This
is what I have tried to do here. Accordingly, I find the
operator was not negligent.
The operator's vice president testified that the operator has been operating at a substantial loss for the last
four years and that it has curtailed its activities as a
result of these financial difficulties. The operator•scorporate tax returns, which have been admitted into evidence, support this assertion. Accordingly, I conclude
imposition of a very substantial penalty would adversely
affect the operator's ability to continue in business.
The parties have stipulated that the operator is small
in size, that prior history is noncontributory, and that the
violations were abated in good faith.
In light of the foregoing, it is hereby ORDERED that a
penalty of $200 be assessed for the violation of section
56.11-1.

1395

In light of the foregoing, it is further ORDERED that
a penalty of $750 be assessed for the violation of section
56.14-35.
ORDER
The foregoing bench decision is hereby, AFFIRMED •
. The operator is
this decision.

days from the date of

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
David L. Baskin, Esq., Office of the Solicitor,··u.s. Department of
Labor, JFK Federal Building, Government Center, Boston, MA 02203
(Certified Mail)
Charles T. Callahan, Esq., Hutchings, Kopeman and Callahan, Suite 800,
53 State Street, Boston, MA 02109 (Certified Mail)

1396

FEDERAL MINe-SAFETY ANO HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, COLORADO 80204

1 2 JUN 1980
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,

v.
KELMINE CORPORATION,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY
DOCKET NO. WEST 79-392-M
ASSESSMENT CONTROL NO. 05-03031-05002
MINE:

C-JD- 7

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

DECISION APPROVING SETTLEMENT
Appearances:
Ann M. Noble, Esq., Office of the Solicitor, United States Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Melvin R. Swanson, Mine Superintendent, Kelmine Corporation, 4901 York Street,
Denver, Colorado 80216
Before:

Judge John J. Morris

At a hearing held on May 19 and 20, 1980, the parties moved for an order
approving a settlement agreement.

They proposed that the recommended penalty be

reduced from $48 to $24.
The facts and documentation presented at the hearing and contained in the
file give due consideration to the criteria required to be examined in assessing
a penalty, 30 U.S.C. § 820(i).

Having analyzed this criteria, I approve the

settlement agreement.
Respondent is directed to pay the agreed amount within 30 days of the date of
this order.

. £~1397

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, United States Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Mr. Melvin R. Swanson, Mine Superintendent, Kelmine Corporation, 4901 York
Street, Denver, Colorado 80216

1398

FEDERAL MINE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

l 2 ._; u~?

22041

·1-~..-~o

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Docket No. YORK 80-60-M
A/O No. 19-00557-05006-H
Falmouth Pit & Mill

HYANNIS SAND & GRAVEL,
INCORPORATED,
Respondent
DECISION
ORDER TO PAY
Appearances:

David Baskin, Esq., Office of the Solicitor, U.S. Department
of Labor, Boston, Massachusetts, for Petitioner, MSHA;
Paul Lorusso, Hyannis Sand and Gravel, Inc., Hyannis,
Massachusetts, for Respondent, Hyannis Sand and Gravel, Inc.

Before:

Judge Merlin

The above-captioned case is a petition for the assessment of a
civil penalty filed by MSHA against Hyannis Sand and Gravel, Incorporated.
The citation at issue involved a lack of adequate brakes on a haulage
truck, a violation of 30 CFR 56.9-3.
At the hearing on June 2, 1980, the Solicitor moved to have a
settlement approved in the amount of $200, reduced from the original
assessment of $1,000 (Tr. 4). The parties stipulated that respondent
has a small history of prior violations, is small in size, that the
alleged violation was abated in good faith and that the imposition of a
penalty here will not affect the operator's ability to continue in
business (Tr. 3). The Solicitor stated that the violation was only of
moderate gravity since other braking systems as well as the emergency
braking system were operational so that the vehicle could be stopped.
From the bench I approved the settlement, expressing the view that the
original proposed penalty was excessive (Tr. 4-5).
ORDER
The settlement approved on June 2, 1980, is hereby AFFIRMED.
The operator is ORDERED to pay $200 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge

1399

Distribution:
David L. Baskin, Esq., Office of the Solicitor, U.S. Department
of Labor, JFK Federal Bldg., Boston, MA 02203 (Certified Mail)
Paul Lorusso, President, Hyannis Sand and Gravel Incorporated,
P.O. Box 96, Hyannis, MA 02601 (Certified Mail)

1400

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

l 2 JUN 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. YORK 80-39-M
A/O No. 19-00557-05005

v.
Falmouth Pit and Mill
HYANNIS SAND & GRAVEL,
INCORPORATED,
Respondent
DECISION
ORDER TO PAY
Appearances:

Frederick Dashiell, Esq., Office of the Solicitor,
U.S. Department of Labor, Boston, Massachusetts, for
Petitioner, MSHA;
Paul Lorusso, Hyannis Sand and Gravel., Inc., Hyannis,
Massachusetts, for Respondent, Hyannis Sand and Gravel,
Inc.

Before:

Judge Merlin

The above-captioned case is a petition for the assessment of civil
penalties filed by MSHA against Hyannis Sand and Gravel, Incorporated.
At the hearing on June 2, 1980, the parties agreed to the following
stipulations:
(1)

The operator has a relatively small history.·

(2)

All the alleged violations were abated in good faith.

(3) The operator is small in size, since it has only between
nine and fourteen employees.
(4) The impos.ition of any penalties herein will not affect the
operator's ability to continue in business (Tr. 3-4).
At the hearing, the Solicitor submitted a motion to approve settlements
for all the violations contained in this petition. I approved settlements
regarding twelve of these violations after having reviewed the Solicitor's
motion and typewritten sunnnaries of these violations (Tr. 5).
With regard to citation 218912 and the related § 104(b) withdrawal
order 202766 originally assessed at $690, the Solicitor in his motion

1401

recommended a reduction to $420. Even the reduced amount was far higher
than the other assessments. Obviously, the original assessment and even
the reduced amount were based upon the fact that a withdrawal order had
been issued. However, the Solicitor admitted that respondent had not
intentionally disregarded·the Act and that it was confused as to what
exactly was required for proper abatement. Although respondent did
take steps to abate the citation which it sincerely believed would
constitute compliance it did not learn its abatement was inadequate
until the order issued. In light of these circumstances and bearing
in mind all the statutory criteria, from the bench I assessed a penalty
of $170 for this violation.
ORDER
The rulings issued from the bench on June 2, 1980, are hereby
AFFIRMED.
The operator is ORDERED to pay $1,400 in fourteen weekly installments
of $100 apiece beginning from the date of the issuance of this decision.

~~~

Paul Merlin
Assistant Chief Administrative Law Judge

Distribution:
Frederick E. Dashiell, Esq., Office of the Solicitor, U.S. Department
of Labor, JFK Federal Bldg., Boston, MA 02203 (Certified Mail)

•

Paul Lorusso, President, Hyannis Sand and Gravel, Incorporated,
P.O. Box 96, Hyannis, MA 02601 (C~rtified Mail)

1402

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, GTH FLOOR
WASHINGTON, D.C.

20006

1 2 jUN 1980

Notice of Contest

CONSOLIDATION COAL COMPANY,
Applicant
v.

Docket No. WEVA 80-333-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Citation No. 812080
Order No. 632501
Apri 1 24, 1980

and

O'Donnell No. 20 Mine

UNITED .MINE WORKERS OF AMERICA
(UMWA),
Respondents
DECISION
Appearances:

Karl Skrypak, Esq., and Samuel Skeen, Esq., for
Applicant;
1homas Mascolino, Esq., and Stephen Kramer, Esq.,
for Respondent, Secretary of Labor;
Mary Lu Jordan, Esq., for Respondent, United Mine
Workers of America.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

On April 24, 1980, federal mine inspectors arrived to inspect
Consolidation Coal Company's O'Donnell No. 20 Mine in response to
a request by the miners under section 103(g) of the Ac't, Several
miners were allowed by the operator to accompany the inspectors
during the walkaround. However, the operator refused to permit
representatives of the International Union's Safety Division to
accompany the inspection party. Because of the refusal, the
inspector on April 24, 1980, issued a citation to the operator
for violating section 103(f) of the Act. When the operator failed
to comply with the citation, a "no area withdrawal order" was
issued on the same day.

1403

Immediate review was sought by the operator under the Energy
Fuels doctrine, 1 FMSHRC 299 (May 1, 1979). All parties have
agreed to submit the case for decision based upon a joint stipulation of facts. Each party has filed a brief. To the extent that
the contentions of the parties are not incorporated in this decision, they are ~ejected.·
STATUTORY PROVISION
Section 103(f) of the Act provides:
(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his
authorized representative during the physical inspection of'any coal or other mine made pursuant to the
provisions of subsection (a), for the purpose of
aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine.· Where
there is no authorized miner representative, the
Secretary or his authorized representative shall consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such
representative of miners who is also an employee of
the operator shall suffer no loss of pay during the
period of his participation in the inspection made
under this subsection. To the extent that the
Secretary or authorized representative of the Secretary determines that more than one representative
from each party would further aid the inspection,
he can permit each party to have an equal number of
such additional representatives. However, only one
such representative of miners who is an employee of
the operator shall be entitled to suffer no loss-of
pay during the period of such participation under
the provisions of this subsection. Compliance with
this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of
this Act.
ISSUES
1. Is the operator entitled to immediate review of the citation and order issued in this case?
2. Do miners and their representatives have the right, under
section 103(f) of the Act, to accompany an inspector during a
walkaround inspection conducted pursuant to section 103(g) of the
Act?

1404

3. Does the failure of the International Union and its
representatives to file with MSHA under 30 C.F.R. Part 40 (or former
Part 81) allow an operator to prevent such person or persons from
accompanying an inspector during the walkaround portion of the
inspection?
4. Did the operator violate section 103(f) of the Act as
alleged in the citation and order?
FINDINGS OF FACT
1. MSHA inspectors arrived at the operator's O'Donnell No. 20
Mine on April 24, 1980, to perform an inspection requested by the
United Mine Workers of America (UMWA), the collective bargaining
representative of the miners.
2. Also arriving at the mine that day were members,of the
International UMWA Safety Division whb identified themselves as
representatives of the miners for walkaround purposes under section 103(f) of the Act. The operator had been informed the previous day that the mine safety committee wanted these individuals
to accompany the MSHA inspectors.
3. The operator refused to permit the International Safety
Representatives to accompany the inspectors because their names
were not listed on the document filed with the operator on
September 20, 1979 entitled "Employees Who Travel With Inspectors
While at Mine 20."
4. A letter dated March 22, 1978, entitled "Certificate of
Representation" filed by the UMWA with MESA (predecessor of MSHA)
under Part 81 of the Federal Coal Mine Health and Safety Act of
1969. A copy was sent to Applicant. This letter designated by
title, but not by name, the representatives of the miners in the
subject mine, including "authorized Representatives of the UMWA
Safety Division * * * " No subsequent document concerning miner
representatives at the subject mine was filed with MSHA.
5. I conclude that the UMWA did not comply with the filing
requirements in 30 C.F.R. Part 40.
6. Because of the refusal of the operator to permit
International Union Safety Representatives to accompany the
inspection party, a federal inspector issued a citation and an
order on April 24, 1980, for a violation of section 103(f) of
the Act. The order was terminated on April 28, 1980.
DISCUSSION
The operator in this case sought immediate review of the citation and order.issued on April 74, 1980. In Energy Fuels Corp. v.

1405

MSHA, 1 FMSHRC 299 (May 1, 1979), it was held that an operator
served with a citation for a violation that has been abated may
immediately contest the allegation of violation in that citation.
Respondent UMWA, by motion filed April 28, 1980, challenged the
operator's right to review of the citation, stating that the violation had not yet been abated. However, the parties stipulated
on May 12, 1980, that the violation had been abated on the day of
Respondent's motion, April 28, 1980. Applicant therefore is
entitled to a review of the citation.
The parties have not raised the issue whether representatives
of miners are entitled, under section 103(f), to accompany an
inspector during a walkaround inspection of a mine conducted pursuant to section 103(g). In MSHA v. Helen Mining Co., 1 FMSHRC 1796
(November 21, 1979) the Commission was divided on whether an operator must pay a miners' representative for time-spent accompanying
an inspector during a section 103( i) "spot" inspection. But all
members agreed that, despite the language in section 103(f) limiting the walkaround right to inspections ''made pursuant to the
provisions of subsection (a)," the legislative history unmistakably
reveals that the walkaround right under section 103(f) applies to
any inspection under the Act. Therefore, walkaround rights in the
present case are governed by section 103(f).
The operator's principal defense to the citation is that the
International representatives were not "representatives of miners"
entitled to accompany the inspector during the walkaround since they
had not complied with the filing requirements for representatives of
miners in 30 C.F.R. Part 40, or former Part 81. Both Part 40 and
Part 81 (its predecessor) require representatives of miners to file
with MSHA and serve upon the relevant operator certain identifying
information. The purpose of the regulations, presumably, is to help
both MSHA and the operators identify the proper representative of
miners in order to forestall any arguments over representative status during inspections, or during proceedings before the Commission
when representatives may elect party status. However, the failure
to comply with whatever filing requirements may obtain in this case
should not be permitted to strip representatives of the walkaround
rights guaranteed in section 103(f).
Resolution of this case, of course, depends upon a proper
interpretation of section 103(f) of the Act. The crux of the problem involves an inherent tension between two portions of that subsection. On the one hand, an inspector is authorized to permit
more than one representative to accompany him if he believes this
w"ill aid the inspection. An Interpretative Bulletin issued by
MSHA, 43 Fed. Reg. 17546 (April 25, 1978), elaborates on the
discretion of the inspector in this area:
Considerable discretion must be vested in
inspectors in dealing with the different situations

1406

that can occur during an inspection. While every
reasonable effort will be made in a given situation
to provide an opportunity for full participation in
an inspection by a representative of miners, it must
be borne in mind that the inspection itself always
takes precedence. The inspector's primary duty is
to carry out a thorough, detailed and orderly inspection. The inspector cannot allow inordinate delays
in commencing or conducting an inspection because of
the unavailability of or confusion surrounding the
identification or selection of a representative of
miners.
On the other hand, section 103(f) states that it is "[s]ubject
to regulations issued by the Secretary * * *·" Thus, the operator
here argues that failure to comply with the applicalile filing
requirements deprives a party of representative status under the
Act.
I conclude that the walkaround right granted by the statute,
and subject to control by the inspector, overrides the operator's
convenience which would be served by strict compliance with the
filing requirements. This conclusion is in accord with the
discretion vested in compliance safety and health officers under
the Occupational Safety and Health Act, 29 C.F.R. § 1903.8.
I reject Applicant's argument that the failure of the
International Union to comply with the filing requirements deprives
them of the status of representatives of the miners. First, it is
difficult to believe that a right so central to the legislative
scheme could be divested by the mere failure to comply with technical filing requirements. I am persuaded by the need to interpret
the Act liberally for the sake of the miners' safety and health.
Phillips v. IBMA, 500 F.2d 772, 782 (D.C. Cir. 1974) •. If the right
of management to discipline its employees for just cause must yield
to the walkaround right, Leslie Coal Mining v. MSHA, 1 FMSHRC 2022
(December 12, 1979), surely the applicable filing requirements must
yield as well.
Second, it would be imprudent to rob the inspector of the discretion clearly intended to be his under the Act. A thorough,
detailed and orderly inspection is indeed the first priority. If
the walkaround right is to be sensibly applied it must be recognized that an inspector has the inherent authority to order reasonable actions in furtherance of his inspection. Cf. C.F. & I. Steel
Corp. v. MSHA, 1 FMSHRC 672 (June 27, 1979). He;;, the inspector
determine~ased on his experience and personal observations at
the mine site, that the International safety representatives could
aid him during the inspection. His determination should not be overturned absent proof that it constituted an abuse of discretion. This

1407

is not to say that the failure to file as a representative may not
be a factor in denial of the walkaround right. But the decision on
this is for the inspector, not the operator.
Third, a d-ecision that the applicable filing requirements do
not necessarily affect walkaround rights accords with the latest
interpretation of those requirements by MSHA, the agency which
drafted them. Upon promulgation of 30 C.F.R Part 40, MSHA commented that "miners and their representatives do not lose their
statutory rights under section 103(f) by their failure to file as
representatives under this part." 43 Fed. Reg. 29508 (July 7,
1979). Considered in light of the foregoing discussion, I find
this to be a logical interpretation of section 103(f).
It remains only to be decided whether the individuals denied
entrance to the mine on April 24, 1980, were representatives of
miners within the meaning of section 103(f). Again, the key is
whether the inspector abused his discretion in finding that they
were. In discussing walkar9und pay, section 103(f) directs that
"only one such representative of miners who is an employee of the
operator shall be entitled to suffer no loss of pay***·" Clearly,
then, nonemployees may be representatives of miners. In this case,
there is no doubt that the inspector acted within the bounds of his
discretion. Admittedly, there was no collective bargaining agreement in effect between the operator and UMWA. But UMWA was, and is,
the exclusive representative of the miners for collective bargaining and has a long history of representing the miners at the
O'Donnell No. 20 Mine. It was well within the province of the
inspector to decide th.at the International safety representatives
could contribute certain insights and expertise beyond that to be
expected from the safety committeemen employed at the mine. I find
that in denying them entrance, contrary to the inspector's order,
the operator violated section 103(f) of the Act.
CONCLUSIONS OF LAW
1. The operator has a right to immediate review of the citation and order issued in this case.
2. Miners arid their repre~entatives have the right under section 103(f) to accompany an inspector during a walkaround inspection
conducted pursuant to section 103(g) of the Act.
3. The failure to file as a representative of miners under
30 C.F.R. Part 40, or former Part 81, does not entitle an operat_or
to deny a representative of miners its right under section 103(f)
to accompany an inspector during a walkaround inspection.
4. The operator in this case committed a violation of section
103(f) by refusing entrance to the O'Donnell No. 20 Mine on April 24,

1408

1980, to members ·of the International UMWA Safety Divis ion, contrary
to the order of the inspector.
ORDER
The citation and order in this case having been properly issued,
Applicant's notice of contest is hereby DISMISSED .

.J~rv>s .413r~ d>ri 'e~

,_,,/

James A. Broderick
Chief Administrative Law Judge

Distribution:
Karl Skrypak, Esq., Consolidation Coal Co., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
Stephen Kramer, Esq., Office of the Solicitor, Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 Fifteenth St., N.W., Washington, DC
20005 (Certified Mail)
Cynthia Attwood, Esq., Office of the Solicitor, Assistant Administrator
MSHA, Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

1409

FEDERAL -MJNE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52a3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

1 2 JUN 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. PENN 79-60
A/O No. 36-03135-03003

v.
C and K Strips
C AND K COAL COMPANY,
Respondent
DECISION
ORDER TO PAY
Appearances:

David Street, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Petitioner, MSHA;
Bruno Muscatello, Esq., Brydon, Stepanian and Muscatello,
Butler, Pennsylvania, for Respondent, C & K Coal Company.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed by
MSHA against the C and K Coal-Company. A hearing was held on May 13, 1980.
Prior to the hearing the parties submitted joint stipulations which had
been agreed to by counsel. At the hearing I accepted these stipulations
(Tr. 4).
Both parties waived the filing of written briefs, and agreed to have a
decision rendered from the bench after the presentation of oral argument
(Tr. 20). A decision was rendered from the bench setting forth findings and
conclusions with respect to the alleged violations (Tr. 20-24).
BENCH DECISION
The bench decision is as follows:
This case is a petition for the assessment of civil penalties filed under section 110 of the Act. The petition contains nine citations. The parties have proposed a settlement
in the amount of $90 for the first violation. This is the
amount originally assessed. After review of this citation, I
have determined that the proposed settlement is in accordance
with the statutory criteria and is therefore approved.

1410

The remaining eight citations which involve various mandatory standards have been the subject of detailed stipulations submitted to me by the Solicitor and operator's counsel.
In these stipulations the parties agree, inter alia, that the
conditions occurred as cited; that the conditions constituted
a violation; that the violations were committed by employees
of an independent contractor engaged by the operator to erect
a drag line for the operator's use; that the independent contractor had. sole control over its employees; that only the
contractor's employees were exposed to the conditions cited
in the petition except for one citation, Citation 619324,
with respect to which respondent's maintenance employee was
exposed; that the operator was nGt negligent with respect to
any of these violations; that all but one of the violations
were serious; that the operator has a small history; that the
operator's ability to continue in business will not be
affected by imposition of any penalties; that the violations
were abated in good faith; and that the operator is medium
in size. Finally, the stipulations set forth -~hat the independent contractor had a separate identification number.
The issue for resolution is whether a ~enalty shou~d be
assessed against the operator for the violations committed by
the independent contractor, and if so, the appropriate amount
of such penalties.
On October 29th, 1979, the Commission in Old Ben Coal
Company, Docket No. VINC 79-119, held that an operator could
be held responsible without fault for the violations of the
Act committed by its independent contractor. In addition,
the Commission decided that the Secretary's determination to
proceed against the operator for an independent contractor's
violations was reviewable by the Commission. In reviewing
the Secretary's determination to proceed against the operator, the Commission stated that the appropriate inquiry was
to determine whether the Secretary's decision was made for
reasons consistent with the purposes and policies_ of the Act.
The Commission further set forth that the Secretary had
represented at that time, i.e., last October, that the policy
of enforcing the Act only against owners was an interim one
pending adoption of regulations providing guidance to inspectors in the identification and citation of contractors. The
Commission expressly noted that the interim policy of citing
only owners was not in line with the view expressed by the
Secretary in his proposed regulations of how best to enforce
the 1977 Act. Nevertheless, the Commission recognized that
it takes "some time" for the development of new policies and
new procedures and therefore, the Secretary's decision in
that case to proceed against the operator was held to be

1411

grounded on~con~iderat-i-ons of consistent enforcement. Accordingly, the Commission upheld the citation. Finally, the
Commission concluded that if the Secretary "unduly" prolonged
the policy that prohibited direct enforcement against contractors he would be disregarding the intent of Congress.
Six and a half months have now elapsed since the
Commission's decision in Old Ben. Nine months have elapsed
since the Secretary issued his proposed regulations on this
matter. During -oral argument, the Solicitor advised that the
Secretary has held hearings on the proposed independent contractor regulations. The record on these hearings was closed
last November but no definitive action has yet been taken. It
appears, therefore, that for a substantial period of time
this matter has been before the Secretary.
Time is running out for the Secretary in this situation.
Citations of operators, especially where as here the
contractor has his own identification number,
does not advance effective enforcement of the Act. Rather it
does just the opposite.
independ~nt

Action by the Secretary on this matter is overdue. I
have determined not to dismiss this particular petition and
vacate these citations. However, under the circumstances
only a nominal penalty against the operator will be assessed.
The Secretary should realize that the day is not far
distant when citations such as these will be vacated and when
a petition such as this will be dismissed.
As already set forth, I approve a penalty of $90.00 for
the first violation. A penalty of $1.00 is imposed for each
of the eight remaining citations.
The operator is ordered to pay $98.00 within 30 days
from the date of the issuance of the written decision £onfirming this Bench decision.
ORDER
The foregoing bench decision is hereby, AFFIRMED.
The operator is
decision.

from the date of this

Paul Merlin
Assistant Chief Administrative Law Judge

1412

Distribution:
David Street, Esq., Office of the Solicitor, U.S. Department of Labor,
Rm. 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Bruno Muscatello, Esq., Brydon, Stepanian, and Muscatello,
228 South Main Street, Butler, PA 16001 (Certified Mail)

1413

FEDERAl'MlNE SAFETY ANU HEALTH REVIEW COMMISSION
333 W. C·)Lf AX AVENUE
DENVER, COLORADO 80204

1 3 JUN 1380

'>

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
THE ANACONDA COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-128-M
MSHA NO. 2L1-00689-05003
Mine:

Weed Concentrator

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

Appearances:
Phyllis K. Caldwell, Esq., Office of the Solicitor, United States
Department of Labor, 1961 Stout Street, Room 1585, Denver, Colorado
80294
for the Petitioner,
Edward F. Bartlett, Esq., and Karla M. Gray, Esq., Anaconda Copper
Company, P. 0. Box 689, Butte, Montana 59701
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceeding petitioner, the Secretary of
Labor, on behalf of the Mine Safety and Health Administration (MSHA),
charges that respondent, the Anaconda Company, violated safety regulations
promulgated under authority of the Federal Mine Safety and Health Act of
1969 (amended 1977), 30 U.S.C. § 801 ~seq.
Pursuant to notice, a hearing on the merits was held in Butte, Montana
on March 11, 1980.
The parties waived their right to fiie post trial briefs.

1414

ISSUE
The issue is whether the violation occurred.
ALLEGED VIOLATION
Citation 341994 alleges a violation of 30 C.F.R. § 55.16-9 which
provides as follows:
55.16-9 Mandatory.
of suspended loads

Men shall stay clear

The evidence is evenly balanced.
MSHA's evidence is to the effect that the inspector observed a 300 to
400 pound cabinet being moved laterally as it was suspended by a crane.
The cabinet was some 6 to 7 feet above the floor; the worker alongside of
the cabinet had both hands beneath it.

(Tr 9-14, 16-20, 193-194).

Anaconda's evidence shows that at all times the metal cabinet was no
more than 8 to 10 inches above the floor.

The worker was not under the load

but he was moving it laterally (Tr 105-111).
DISCUSSION
The burden of proving all elements of an alleged violation
MSHA, 5 U.S.C.

§

556(d).

rests.~ith

Brennan v. OSHRC, 511 F.2d 1139 (9th Cir. 1975),

Olin Constructi.?? Company v. OSHRC, 575 F.2d 464 (2d C.ir. 1975).
Where witnesses stand before the Court, equal in character, equal in
interest, and equal in opportunity to know the facts, and they have made
irreconcilable contradictory statements and neither is corroborated, there
is no "preponderance."

The party who has the burden to go forward, has

failed to sustain his burden.

Bis~~~ v.Nikolas,

1415

51

N.~.

2d 828 (1943),

and see Aluminum Co. of America v. Preferred Metal Products, 37 F.R.D.

218

(1965), aff'd 354 F.2d 658.
Since MSHA has failed to carry its burden of proof I conclude that
Citation 341994 and· all proposed penalties therefor should be vacated.
Inasmuch as the citation is to be vacated it is not necessary to
consider Anaconda's motions at trial (Tr. 97-100).
SETTLEMENT
The parties further filed a stipulation and motion to approve a
settlement agreement.

In support of the motion the parties stated that the

amount of the proposed settlement for all citations excepting No. 341994 is
The amount of the original proposed penalties ~as $1010.

$661.

The motion contains an analysis of the criteria to be followed in
determining the appropriateness of the penalty.

Documentation was sumbitted

in support of the motion.
Having analyzed the operator's history of previous violations, the
appropriateness of the penalty to the size of the business, the degree of
negligence, the effect on the operator's ability to continue in businer.s,
and the good faith achievement of normal compliance after notification of

.,

violation, I conclude that the agreement should be, and it is APPROVED.
It is FURTHER ORDERED that respondent pay the agree9 amount within 30

days of this order.
Based on the foregoing findings of fact and conclusions of law antl the
settlement agreement, I enter the following:
ORDER
1.

Citation 341994 and all proposed penalties therefor are VACATED.

2.

The following citations and the proposed amended penalties, as

noted, are affirmed.

1416

CITATION
341981
341984
341985
341988
341989
341992
341993
341961
341962
341965
341966

AMENDED PENALTY
$ 61.
56
38
130

52
44
52
72

61
52
44

Law Judge
Distribution:
Office of the Solicitor, United States Depart~ent of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Phyllis K.
Caldwell, Esq.
Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention:
Edward F. Bartlett, Esq. and Karla M. Gray, Esq.

1417

---· - -FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COU AX AVENUE
DENVER, COLORADO 80204

1 3 JUN 1980
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,
v.

THE ANACONDA COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-136-M
MSHA NO. 24-00689-05011
Mine:

Weed Concentrator

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

Appearances:
Phyllis K. Caldwell, Esq., Office of the Solicitor, United States
Department of Labor, 1961 Stout Street, Room 1585, Denver, Colorado
80294
for the Petitioner,
Edward F. Bartlett, Esq., and Karla M. Gray, Esq., Anaconda Copper
Company, P. O. Box 689, Butte, Montana 59701
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceeding petitioner, the Secretary of
Labor, on behalf of the Mine Safety and Health Administration (MSHA),
charges that respondent, the Anaconda Company, violated safety regulations
promulgated under authority of the Federal Mine Safety and Health Act of
1969, (amended 1977), 30 U.S.C. § 801 ~seq.
Pursuant to notice, a hearing on the merits was held in Butte, Montana
on March 11, 1980.
The parties waived their right to file post trial briefs.

1418

ISSUES

The issues are whether the violations occurred.
CITATION 344173

alleges a violation of 30 C.F.R. § 55.15-4 which provides as
follows:
55.15-4 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.
The evidence is conflicting and I find the following facts to be
credible.
1.

Upon entering the Anaconda pipe shop the federal inspector observed

three workers not wearing safety glasses (Tr 30, Exhibit P-3).
2.

The workers, who apparently use this area for work breaks, were

near the main door (Tr 32-66).
3.

The pipe shop lathe and grinding wheel carry 480 volts; the pipe

threader carries 10 volts A.G. (Tr 33).
4.

Metal filings can be thrown several feet by the machines (Tr

34-34).

5.

Only the large pipe machine, a slow rotating device, was running

when the inspector entered the pipe shop (Tr 135, 138, Exhibit R-4).
6.

The pipe machine operator was wearing protective eye glasses (Tr

136).
DISCUSSION

Anaconda's exhibit (R-4) indicates the workers that were near the main
door were at least twenty-two feet from the only machine that was operating.
The operator of that machine was wearing protective eyeglasses (Tr 136).

1419

I-have placed more credence in the Anaconda exhibit which depicts the
pipe shop than-in -Eh-e MSHA related exhibit (P-3, R-4).
appears to be drawn to scale.
comparison.

MSHA's free hand drawing suffers in

I place no credence in MSHA's evidence that the machines in the

pipe shop could explode (Tr 33).
(Tr 186).

The Anaconda e:xhibit

That evidence is contradicted by Anaconda

In addition, there is no foundation for the witness to state such

an opinion.

Without a foundation I consider the evidence to be

spectulative.
MSHA must prove a violation of the standard as well as exposure of the
workers.

No exposure to the workers exists here since the best that can be

said about MSHA's evidence is that metal filing can be thrown "several" feet
(TR 34-35).
expose~

Since MSHA failed to prove that the Anaconda workers were

to the hazard involved here I conclude that Citation 344173 should

be vacated.
CITATION 344168
alleges a violation of 30 C.F.R. § 55.15-4, cited above.
The evidence is conflicting and I find the following facts to be
credible.
7.

In the flotation cell area a worker was observed with his glasses

off for four minutes (Tr 37-39).
8.

The worker was holding the glasses in his hand (Tr 73, 126).

9.

Anaconda policy is stricter than the federal regulation in that it

requires that safety glasses be worn at all times in the plant (Tr 127).
The foregoing facts indicate a situation involving unpreventable
employee misconduct.

Here the employee momentarily deviated from

established company policy.

The employer could not have know of the

violation nor could it have forseen it.

1420

Jfowever, the Commission has ruled that a mine operator is liable
without regard tu--·faulc-:

United States Steel Corporation v. Secretary of

Labor Pitt 76-160-P, September 1979.

The lack of fault on the part of an

operator is a matter to be considered in assessing a civil penalty.

In

considering the statutory criteria in connection with the flotation cell
area I conclude the citation should be affirmed and a penalty of $1 should
be assessed.
SETTLEMENT
The parties further filed a stipulation and a motion to approve a
settlement agreement.

In support of the motion the parties stated that the

amount of the proposed settlement for all citations
344173 is $693.

excep~ing

No. 344168 and

The amount of the original proposed penalties not litigated

herein was $860.
The settlement agreement indicates that Citation 344168 was settled.
However, at trial the parties indicated the matters in that citation were to
be heard (Tr 6).

In view of the request of the parties the portion of the

settlement agreement purporting to settle Citation 344168 is stricken.
The motion contains an analysis of the criteria to be followed in
determining the appropriateness of the penalty.

Documentation was submitted

in support of the motion.
Having analyzed the operator's history of previous violations, the
appropriateness of the penalty to the size of the business, the degree of
negligence, the effect on the operator's ability to continue in business,
and the good faith achievement of normal compliance after notification of
violation, I conclude that the agreement should be, and it is, approved.

1421

B~sed

on the foregoing findinrs of fact and conclusions of law and

-- -· -- --

the settlement agreement, I enter the following:
ORDER
1.

Citation 344173 and all proposed penalties therefor are VACATED.

2.

Citation 344168 is AFFIRMED and a civil penalty of $1 is assessed.

3.

On the proposed settlement agreement the following citations and

the proposed amended penalties, as noted, are affirmed.
CITATION
344072
344073
344074
344078
344079
344170
344172
342184
342186

AMENDED PENALTY
$ 61
61
16
97
78
104
78
84
ll4

Respondent is ordered to pay the agreed amount of the settlement
agreement within 30 days of the date of this order.

Judge
Distribution:
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Phyllis K.
Caldwell, Esq.
Anaconda Copper Company, P. 0. Box 689, Butte, Montana
Edward F. Bartlett, Esq and Karla M. Gray, Esq.

1422

59701, Attention:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COU AX AVENUE
DENVER, COLORADO 80204

l J JUN 1980
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,
v.

THE ANACONDA COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-137-M
MSHA NO. 24-00689-05012
Mine:

Weed Concentrator

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

Appearances:
Ann M. Noble, Esq., Office of the Solicitor, United States
Department of Labor, 1961 Stout Street, Room 1585, Denver, Colorado
80294
for the Petitioner,
Edward F. Bartlett, Esq., and Karla M. Gray, Esq., Anaconda Copper
Company, P. 0. Box 689, Butte, Montana 59701
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceeding petitioner, the Secretary of
Labor, on behalf of the Mine Safety and Health Aclministration (MSHA),
charges that responclent, the Anaconda Company, violated safety regulations
promulgated under authority of the Federal Mine Safety and Health Act of
1969 (amended 1977), 30 U.S.C. § 801 ~seq.
Pursuant to notice, a hearing on the merits was held in Butte, Montana
on March 11,

1~80.

The parties waived their right to file post trial briefs.

1423

ISSUE
The issue· is whet~r_,!:he viol at ion occurred.
CITATION 342194
alleges a violation of 30 C.F.R. § 55.16-9 which provides as
follows:
55.16-9 Mandatory.
of suspended loads

Men shall stay clear·

The evidence is evenly balanced.
MSHA's evidence indicates workers were under a suspended load.

One

worker, on the side directly underneath the rod mill guard, was guiding it
with the palm of his hand (Tr. 44, 45, Exhibit P-5).
feet laterally.
(Tr.

46).

The guard was mo\·ed 12

It was 75 inches from the floor to the bottom of the guard

The guard, weighing 400 to 600 pounds, measures 5 to 6 feet in

length, 4 to 5 feet wide, and 3 to 6 feet high (Tr.

47, 81, 82).

Anaconda's evidence indicates its workers were ln the process of
replacing the hood cover on its number 6 rod mill.

At the time of this

incident the workers, with a crane, were beginning to lift the guard off the
floor to place it on the trauma screen ·(Tr. 117' 121, Rl).

When it was

lifted 4 feet above the floor a worker with his arms extended, turned it 10

'
degrees.

No part of any worker's body was under the cover at any time (Tr.

121,124).
DISCUSSION
The burden of proving all elements of an alleged violation rests with
MSHA, 5 U.S.C. § 556(d).

Brennan v. OSHRC, 511 F.2<l 1139 (9th Cir. 1975),

Olin Construction Company v. OSHRC, 575 F.2d 464 (2d Cir. 1975).

1424

_Where witnesses stand before the Court, equal in character, equal .in
interest. ana-equar ln opportunity to know the facts, and they have made
irreconcilable contradictory statements and neither is corroborated, there
is no ''preponderance."

The party who has the burden to go forward, has

failed to sustain his burden.

Bishop v. Nikolas, 51 N.E. 2d 828 (1943), and

see Aluminum Co. of America v. Preferred Metals Producte, 37 F.R.D. 218
(1965), aff'd 354 F.2d 658.
Since MSHA has failed t~ carry its burden of proof I conclude that
Citation 342194 and the proposed penalty therefor should be vacated.
SETTLEMENT
The parties further filed a stipulation and a motion to approve a
settlement agre,ement.

In support of the motion the parties stated that the

amount of the proposed settlement for citation 344177 is $78.

The amount of

the original proposed penalty was $114.
The motion contains an analysis of the criteria to be followed in
determining the appropriateness of the penalty.

Documentation was submitted

in support of the motion.
Having an~lyzed the operator's history of previous violations, the
appropriateness of the penalty to the size of the business, the degree of
negligence, the effect on the operator's ability to continue in business,
and the good faith achievement of normal compliance after notification of
violation, I conclude that the agreement should be, and it is approved.
Based on the foregoing findings of fact and conclusions of law,
I enter the following:
ORDER

1.

Citation 342194 and all proposed penalties therefor are VACATED.

2.

Citation 344177 and the proposed amended penalty in the amount of

$78 is AFFIRMED.

1425

Respondent is directed to pay the agreed amount of the settlement within
30 days of the date of this order.

Judge
Distribution:
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Ann M.
Noble, Esq.
Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention:
Edward F. Bartlett, Esq. and Karla M. Gray, Esq.

1426

FEBERAt-MINcSAFETY AND HEALTH REVIEW COMMISSION
333 W. CC'LF AX AVENUE
DENVER, COLORADO 80204

1 3 JUN 1980
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,

v.
KENNECOTT COPPER CORPORATION,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-27.5-M
ASSESSMENT CONTROL NO. 02-00826-05003
MINE:

HAYDEN CONCENTRATOR

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

DECISION AND ORDER
STATEMENT OF THE CASE
This proceeding arose through initiation of an enforcement action brought
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C.

§

801 et seq. (1978) [hereinafter cited as "the 1977 Act" or "the Act"].

On April 28, 1980, Respondent, Kennecott Copper Corporation [hereinafter "Kennecott"],
filed with the Commission its Motion for Summary Decision pursuant to Commission
Rule 64, 29 CFR § 2700.64.

Petitioner, the Secretary of Labor, Mine Safety and

Health Administration (MSHA) [hereinafter "the Secretary"], responded by filing a
brief on May 5, 1980.

Kennecott, in turn, filed a rep~y brief with the Commission

on May 7, 1980.
FINDINGS OF FACT
The parties agree, and I concur, that there is no issue in dispute as to any
material fact.

From the uncontroverted evidence, I find the following facts to be

established:
1.

Cimetta Engineering Construction Company, Inc. [hereinafter "Cimett;i"]

was engaged by Kennecott as an independent contractor to install a new ball mill
in the reduction plant at Kennecott's Hayden Concentrator and in the course of
such duties had a continuing presence at the mine.

1427

2.

On April 11, 1979, a flat bed truck owned and operated by Cimetta was

observed by an MSHA inspector who subsequently determined that the truck's brake
lights and signal lights were not operating, contrary to the provisions of 30 CFR
§

55.9-2 l./
3.

Citation No. 378845 was issued to Kennecott by the MSHA inspector for

Cimetta's violation of the above-cited mandatory safety standard.
4.

The Secretary issued a proposed rule setting forth criteria by which the

Mine Safety and Health Administration would identify certain independent contractors as operators under the 1977 Act.

The proposed rule was published on August 14,

1979 at 44 Fed. Reg. 47746 (1979).
5.

No such final rule has, as of yet, been issued.

6.

Respondent operates a large mining business.

7.

In the twenty-four months prior to this inspection, Respondent had

no

history of previous violations.
8.

The condition cited was corrected within the time specified for abatement

in the citation.
9.

Payment of the proposed penalty will not impair the ability of Respondent

to continue in business.
ISSUES PRESENTED
The following issues are presented for determination:
1.

Whether an owner-operator can be held liable for activities of an

independent contractor which constitute a violation of regulations promulgated
pursuant to the 1977 Act?

l._/

Mandatory. Equipment defects affecting safety shall be corrected before
the equipment is used.

1428

2.

Wh~~h~~-th~~~retary

unduly delayed the issuance of a final rule

permitting direct enforcement against an independent contractor for activities
which constitute a violation of regulations promulgated pursuant to the 1977
Act?

3.

Whether an owner-operator should be held liable for activities of an

independent contractor which constitute a violation of regulations promulgated
pursuant to the 1977 Act?
4.

Whether the $40.00 penalty assessment proposed for Citation No. 378845

is reasonable and appropriate under the circumstances?
DISCUSSION
The first issue presented for discussion, tha-t of owner-operator liability,
has previously been addressed by the Federal Mine Safety and Health Review
Commision.

In

Secretary of Labor, Mine Safety and Health Administration (MSHA)

v. Old Ben Coal Company, (Docket No. VINC 79-119, October 29, 1979) [hereinafter
cited as "Old Ben"], the Commission decided that an owner-operator can be held
responsible without fault for the violation of the Act committed by its
independent contractor.

The Commission elaborated:

"When a mine operator engages a contractor to perform contruction or services at a mine, the duty to maintain compliance with the
Act regarding the contractor's activities can be imposed on both the
owner and the contractor as operators. This refle_cts a congressional
judgement that, insofar as contractor activities are concerned, both
the owner and the contractor are able to assure compliance with the
Act. Arguably, one operator may be in a better position to prevent
the violation. However, as we read the statute, this issue does not
have to be decided since Congress permitted the imposition of liability on both operators regardless of who might be better able to
prevent the violation." Old Ben at 1483.
Several other decisions of the Review Commission are in agreement.

See also

Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Republic
Steel Corporation, (Docket No. IBMA 76-28, April 11, 1979); Secretary of Labor

1429

Mine Safety and Health Administration (MSHA) v. Kaiser Steel Corporation,
(Docket No. DENV 77-13-P, May 17, 1979); Secretary of Labor, Mine Safety and
Health Administration (MSHA) v. Monterey Coal Company, (Docket No. HOPE 78-469,
November 13, 1979).
The second issue presented for discussion, that of undue delay in the
issuance of a final rule regarding independent contractor-operators, may now be
addressed.

The Review Commission in its decision of Old Ben emphasized that

the amendment of the definition of "operator" in the Act to include independent
contractors makes it clear that contractors can be proceeded against and held
responsible for their.own violations.

"Indeed,

direct enforcement against

contractors for their violations is a vital part of the 1977 Act's enforcement
scheme."

Old Ben at 1483.

To give full effect to th~t scheme, the Secretary issued a proposed rule
setting forth criteria that would enable MSHA inspectors to proceed directly
against independent contractors as operators for their violations of the Act.
The due date for comments -regarding the proposed rule was October 15, 1979.
44 Fed. Reg. 47746 (1979).

Eight months have passed since that due date and no

final rule has been issued.
In Old Ben the Secretary asserted that although Old Ben Coal Company

"

was proceeded against in accordance with a Secretarial policy of directly
enforcing the Act only against owners, this policy is an
interim one pending adoption of regulations providing guidance
to inspectors in the identification and citation of contractors."
Old Ben at 1486.

However, the Commission noted:
" ••• [T]here is no indication of when the interim policy will
be replaced by a new one. If the Secretary unduly prolongs a
policy that prohibits direct enforcement of the Act against

1430

_,

-- __

contra-ctors, he will be disregarding the intent of Congress.
In view of the Secretary's express recognition of the wisdom
and effectiveness of subjecting contractors to direct enforcement, continuation of a policy that forecloses such enforcement
will provide evidence that the current policy is grounded on
improper considerations of administrative convenience, a basis
that would not be consistent with the Act's purpose and
policies....
To use this tool as a mere administrative
expedient would be an abuse." Old Ben at 1486-7.
As a matter of law, I cannot find by a preponderance of the evidence that
the Secretary has unduly prolonged a policy that prohibits direct enforcement of
the Act against independent contractors.
Eight months have passed since the due date for receipt of comment on the
proposed rule.

That is a long time.

effective date of the Act.

Twenty-seven months have passed since the

That is an even longer time.

The wheels of govern-

ment turn slowly, but turn they must.
Unless he acts, the Secretary will soon cross the line and have taken too long
In light of the Commission's reasoning in Old Ben, I rule that the Secretary has
not unduly delayed the issuance of a final rule regarding independent contractors.
Based upon the foregoing conclusion, I must resolve the'issue of whether an
owner-operator should be held liabl~ for contractor activities in the affirmative.
Old Ben clearly establishes that the duty to maintain compliance with the Act
regarding a contractor's activities can be imposed on both the owner and contractor as operators.

As the Secretary has not unduly prolonged the interim enforce-

ment policy of citing owners only, the owner-operator should be held liable for
independent contractor activities which constitute a violation of the Act.
one must be held responsible for the safety and health of miners.

Some-

In this

circumstance, that responsibility must rest with the owner-operator.
From the facts as found, it appears that Citation No. 378845 was properly
issued for a violation of 30 CFR § 55.9-2.

Respondent operates a large mining

business and payment of the proposed penalty will not impair its ability to

1431

continue in business. ---Responctent has no history of previous violations anJ
exhibited good faith in the prompt correction of the condition cited.

Kennecott's

negligence was ordinary and the gravity of the situation created by that negligence was slight.

Based on the foregoing discussion, the $40.00 penalty

assessment proposed for this citation is considered by me to be a proper amount.
CONCLUSIONS OF LAW

1.

The undersigned Administrative Law Judge has jurisdiction over the

parties and subject matter of this proceeding.

2.

The conditions found to exist on April 11, 1979, in Finding of Fa~t No. 2,

constitute a violation of the mandatory safety standard contained in 30 CFR
§ 55.9-2.

3.

Respondent can be held liable for the activities of its independent

contractor constituting the violation found to exist in Conclusion No. 2 above.

4.

The Secretary has not unduly delayed the issuance of a final rule

permitting direct enforcement against an independent contractor for activities
which constitute a violation of regulations promulgated pursuant to the 1977 Act.

5.

Respondent is liable for the activities of its independent contractor

which constitute the violation found to exist in Conclusion No. 2 above.
6.

The $40.00 penalty assessment proposed for Citation No. 378845 is

reasonable and appropriate under the circumstances.
ORDER
Based upon the foregoing findings of fact and conclusions of law, Citation
No. 378845 and the proposed penalty assessment of $40.00 are hereby affirmed.
Respondent shall pay the affirmed penalty within thirty days of the date of this
Decision.

(. .-'~
~. ,_-_..r-- -?
-'i -- ·1 y

/ C

--.,.~.

.

- - r/'--~~-~(..~
j

\ /...

/

-4-'

//Jon D. Bo1t:C
,,.
' / Administrative Law Judge

1432

Distribution:
Patrick Wm. Paterson, Esq., FENNEMORE, CRAIG, von AMMON & UDALL, P.C.~
1700 First National Bank Plaza, 100 West Washington Street, Phoenix,
Arizona 85003
Judith G. Vogel, Esq., Office of the Solicitor, United States Department
of Labor, 11071 Federal Building, Box 36017, 450 Golden Gate Avenue,
San Francisco, California 94102

1433

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. CULF AX AVENUE
DENVER, COLORADO 80204

1 3 JUN 1980
~~~~~~~~~~~~~~~~~~)

)
)
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)
)
)
)
)
)
)
)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,
v.
THE ANACONDA COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-316-M
MSHA NO. 24-00338-05005
Mine:

Weed Concentrator

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

Appearances:
Phyllis K. Caldwell, Esq., Office of Henry Mahlman, Regional Solicitor,
United States Department of Labor, 1961 Stout Street, Room 1585,
Denver, Colorado 80294
for the Petitioner,
Edward F. Bartlett, Esq., and Karla M. Gray, Esq., Anaconda Copper
Company, P. 0. Box 689, Butte, Montana 59701
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceeding petitioner, the Secretary of
Labor, on behalf of the Mine Safety and Health Administration (MSHA),
charges that respondent, the Anaconda Company, violated safety regulations
promulgated under authority of the Federal Mine Safety and Health Act of
1969, (amended 1977), 30 U.S.C. § 801 ~seq.
Pursuant to notice, a hearing on the merits was held in Butte, Montana
on March 11, 1980.
The parties waived their right to file post trial briefs.

1434

ISSUE
The issu.e__ is __whether_ the viol at ion occurred.
ALLEGED VIOLATION
Citation 342144 alleges a violation of 30 C.F.R. § 55.15-4 which
provides as follows:
55.15-4 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 plant where a hazard exists which
could cause injury to unprotected eyes.
The evidence is conflicting and I find the following facts to be
credible.

1.

After entering the Anaconda primary crusher room,

~nd

upon

approaching the crusher, the inspector observed a worker without glasses
(Tr. 48-89).
2.

The worker, who was using a cherry picker to remove large pieces of

rock material, left the platform and returned wearing his glasses (Tr. 88).
3.

The operator was 12 feet from where rock hit the conveyor belt (Tr.

88-89).
4.

The worker was exposed to various sizes of flying rock (Tr. 89).
DISCUSSION

Anaconda's evidence would tend to indicate that

th~_ inspector's

ability

to preceive the worker was severly limited by the lighting conditions and
the distance he was from the worker (Tr. 169-178).
I am not persuaded by Anaconda's evidence.
was 50 feet from the worker.
Anaconda management witnesses.

The inspector indicated he

As such he was closer than any of the
He further readily indentified an individual

in the courtroom under similar lighting conditions.

1435

Based on the facts I find to be credible I conclude that Citation
324144 should be affirmed.

Further, in considering the statutory criteria

I conclude the proposed civil penalty therefor should be affirmed.
SETTLEMENT
An order approving a proposed settlement for Citations 342130 and
343814 lodged

i~

this case was entered by the undersigned on April 8, 1980

in cases consolidated under Docket No. WEST 79-315-M.
Based on the above findings of fact and conclusions of law I enter the
following:
ORDER
Citation 342144 and the proposed penalty

there~for

are AFFIRMED.

Law Judge
Distribution:
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Phyllis K.
Caldwell, Esq.
Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention:
Edward F. Bartlett, Esq. and Karla M. Gray, Esq.

1436

FEDERAr~·INE SAFETY ANL'I HEALTH REVIEW COMMISSION
333W. COLF·AX AVENUE
DENVER, CO LORAOO 80204

l 3 JUN 1980
)
)
)
)
)

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),

CIVIL PENALTY PROCEEDING

)

Petitioner,

)
)
)
)
)
)
)
)
)

v.
THE ANACONDA COMPANY,
Respondent.

DOCKET NO. WEST 79-130-M
MSHA NO. 24-00689-05005
Mine:

Weed Concentrator

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

Appearances:
Phyllis K. Caldwell, Esq., Office of the Solicitor, United States
Department of Labor, 1961 Stout Street, Room 1585, Denver, Colorado
80294
for the Petitioner,
Edward F. Bartlett, Esq., and Karla M. Gray, Esq., Anaconda Copper
Company, P. O. Box 689, Butte, Montana 59701
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceeding petitioner, the Secretary of
Labor, on behalf of the Mine Safety and Health Administr-ation (MSHA),
charges that respondent, the Anaconda Company, violated safety regulations
promulgated under authority of the Federal Mine Safety and Health Act of
1969 (amended 1977), 30 U.S.C.

§

801 !..£.seq.

Pursuant to notice, a hearing on the merits was held in Butte, Montana
on March 11, 1980.
Th~

parties waived their right to file post trial briefs.

1437

Citation No. 342176
alleges a violation of 30 CFR § 55.16-9 which provides as follows:
55.16-9 Mandatory.
of suspended loads
The evidence is evenly balanced.

Men shall stay clear

MSHA's shows that the federal

inspector observe_d a cart containing a tank of oxygen and acetylene.
being lowered from the second floor to the first floor.

It was

Two workers,

neither of them looking up, were_ directly under the load.
A fatality could result in these circumstances (Tr 21-28).
Anaconda shows that no workers were under the load at any time.

One

worker, on the second floor level, was feeding the tag line as the cart
lowered to the first floor (Tr 112-116).
DISCUSSION
MSHA carries all the burden of providing all the elements of an alleged
violation, 5 U.S.C. § 556(d).

Brennan v. OSHRC, 511 F.2d 1139 (9th Cir.

1975), Olin Construction Company v. OSHRC, 575 F.2d 464 (2d Cir. 1975).
Where witnesses stand before the Court, equal in character, equal in
interest, and equal in opportunity to know the facts, and they have made
irreconcilable contradictory statements and neither is corroborated, there
is no "preponderance."

The party that has the burden t_<> go forward, has

failed to sustain his burden.

Bishop v. Nikolas, 51 N.E. 2d 828 (1943), and

see Aluminum Co. of America v. Preferred Metal Products, 37 F.R.D. 218
(1965), aff'd 354 F.2d 658.

1438

si-nce MSHA has failed to carry its burden of proof I cone lude that
Citation 342176-and-all proposed penalties therefor should be vacated.
Inasmuch as the citation is to be vacated it is not necessary to
consider Anaconda's motions at trial (Tr. 97-100).
SETTLEMENT
The parties further filed a stipulation and a motion to approve a
settlement agreement.

In support of the motion the parties stated that the

amount of the proposed settlement for all citations excepting Nos. 341867,
341869, and 342176 is $569.
was $1020.

The amount of the original proposed penalties

MSHA moved to vacate citations numbered 341867 and 341869.

The motion contains an analysis of the criteria to be followed in
determining the appropriateness of the penalty.

Documentation was submitted

in support of the motion.
Having analyzed the operator's history of previous violations, the
appropriateness of the penalty to the size of the business, the degree of
negligence, the effect on the operator's ability to continue in business,
and the good faith achievement of normal compliance after notification of
violation, I conclude that the agreement should be, and it is APPROVED.
It is FURTHER ORDERED that respondent pay the agreed amount within 30
days of this order.
Based on the foregoing findings of fact and conclusions of law and the
settlement agreement, I enter the following:
ORDER
1.

The following citations and all proposed penalties therefor are

VACATED.
No. 341867
No. 341869
No. 342176

1439

2.

The following citations and the proposed penalties, as amended,

are AFFIRMED;
CITATION
342000
342174
341862
341863
341864
341865
341866
341870
341871
341873
342175
342177
342178

AMENDED PENALTY
$ 30
60
48
51
48
48
61
28
47
40
38
9

61

Law Judge
Distribution:
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Phyllis K.
Caldwell, Esq.
Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention:
Edward F. Bartlett, Esq. and Karla M. Gray, Esq.

1440

FED.ERAl· MINE- SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 1 6 ':860

Application for Review of
Discrimination

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DELMAR WORKMAN,
Complainant

Docket No. WEVA 80-159-D
Complaint No. CD 79-304
Preparation Plant

v.
KESSLER COALS, INC.,
Respondent
DECISION APPROVING SETTLEl1ENT
Appearances:

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Complainant;
c. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell,
Charleston, West Virginia, for Respondent.

Before:

Judge Stewart

The above captioned case is an application for review of discrimination
brought pursuant to section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et~· hereinafter referred to as the Act.
On December 19, 1979, the Secretary of Labor (MSHA) filed a complaint of
discrimination on behalf of Delmar Workman. Respondent filed its answer on
January 21, 1980.
At the commencement of the hearing on April 15, 1980, in Charleston,
West Virginia, the parties announced the following agreement:
The terms of the settlement agreement are these:
That Kessler Coal Company will expunge from the employment record of Delmar Workman all references to his unexcused
absence of September 14th, 1979, and that his absence of
September 14th, 1979, be considered an excused absence.
As part of this agreement, Kessler Coal Company agrees
that any discipline based on unexcused absences occurring
subsequent to September 14th, 1979, be adjusted accordingly.

1441

Respondent further agrees to post a notice in a conspicuous place .:..f.or --a- -perio-d of fourteen days. The terms of that
notice to be as follows:
Pursuant to an agreement between the Mine Safety and
Health Administration and Kessler Coals, Inc., Kessler Coal
Company agrees that no person shall be discharged or in any
manner discriminated against or caused to be discharged
because such miner, representative of miners, or applicant
for employment (1) has filed or made a complaint under or
related to this·act, including a complaint notifying the
operator or the operator's agent or the representative of
the miners, including a complaint notifying the operator or
the operator's agent or the representative of the miners
at the coal mine of an alleged danger or safety or health
violation in a coal or other mine or; (2) is a subject of
medical evaluations and potential transfer under a standard
published pursuant to Section 101 or; (3) has instituted or
caused to be instituted any proceeding under or related to
this act or; (4) has testified or is about to testify in any
such proceeding or; (5) because of the.exercise by.such miner,
representative of miners, or applicant for employment on
behalf of himself or others of any statutory right afforded
by this act.
The settlement agreement between the parties further
stipulates that the complainant will withdraw its charge of
discrimination.

*

*

*

*

*

*

*

The settlement agreement has been reached as a result of
protracted discussion this morning in the spirit of compromise
and to resolve disputed claims without the necessity of protracted litigation.
That further, the withdrawal of the discrimination complaint indicates and * * * states the position that no
further action on the events described in the complaint will
be pursued by the Hine Safety and Health Administration. * * *
The one other point that might be clarified for the
record is the adjustment of the disciplinary action. The
matter involved in this case was a verbal warning. A
subsequent written warning will now be adjusted to a verbal
warning, according to the settlement agreement. * * *
[T]he subsequent warning has already been withdrawn, so that
there is currently, pursuant to the settlement agreement, no
verbal warning for unexcused absence.

1442

At the. conclusion of the hearing, this settlement agreement was read
back by the-eou-rt-·reporter and both parties expressed their satisfaction
with its terms.
The agreement of the parties was approved from the bench and the proceeding was dismissed.
ORDER
The approval of the agreement by the parties and the dismissal
of the proceeding are affirmed.

Forrest E. Stewart
Administrative Law Judge
Issued:
Distribution:
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

c. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
United Mine Workers of America, 900 Fifteenth Street, NW, Washington,
DC 20005 (Certified Mail)
Delmar Workman, General Delivery, Sylvester, WV 25209 (Certified Mail)
Standard Distribution

1443

FEDERAl MtNE SArETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6210/11/12

JUN 1 6 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEVA 80-74
A.O. No. 46-05206-03009 V
No. 4 Mine

v.
GREGOIRE COALS, INC.,
Respondent

DECISION AND ORDER
The parties move for approval of a settlement of the two unwarrantable
failure roof control violations charged at 50% of the $2,000 initially
assessed.
Based on an independent evaluation and de ~ review of the parties'
excellent prehearing submissions and motion, I find the violations while
serious occurred without the fault of the operator. They were in all
probability the result of willfully reckless conduct on the part of certain
disgruntled miners. In fact, on this record the operator makes out a prima
facie case for a civil, if not criminal, investigation of the acts of
sabotage that allegedly resulted in the violations charged.
I have previously noted, Warner Co., PENN 79-161-M, 2 FMSHRC 972
·(April 28, 1980); U.S. Steel Corp., PENN 79-123, 2 FMSHRC ~-(May 20, 1980),
the absence of interest on the part of MSHA in investigating or filing
charges against rank-and-file miners who either deliberately or through
an inexcusable lack of safety consciousness endanger themselves or their·
fellow workers. In my opinion section llO(c) of the Act is not limited
to supervisory employees but reaches every miner of whatever rank or pay
classification. I believe that because all miners are statutory agents
of the operator within the meaning of sections 3(e) and llO(c) of the 1977
Mine Act they are subject to the civil and criminal sanctions of the Act
for knowingly willful violations of the mandatory safety standards.
It is my firm belief that if every miner was made aware of the fact
that his occupational conduct is subject to the civil and criminal
sanctions of the Mine Safety Law mine fatalities and disabling injuries
would be sharply reduced. It is encouraging to note that my concern is
shared by Congressman Gaydos, Chairman of the House Subcommittee on
Health and Safety. Mr. Gaydos recently stated he is urging MSHA to take

1444

administrative Stfil>,S t__9_-~e..quire all miners to follow safe practices.
1 BNA Mine Safety and-Health Reporter 564 (May 21, 1980).
With respect to the instant case, I conclude the settlement proposed
is clearly appropriate and in accord with the purposes and policy of the
Act. This is true without even considering the financial impairment
claimed.
Accordingly, it is ORDERED that the motion to approve settlement
be,. and hereby is, G~TED. It is FURTHER ORDERED that the operator
pay the amount of the penalty agreed upon, $1,000, on or before Monday,
June 30, 1980, and that subject to payment the captioned matter be, and
hereby is, DISMISSED.

Joseph B. Kenne
Administrative

Law

Distribution:
Catherine M. Oliver, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
David Romano, Esq., Young, Morgan & Cann, Suite One, Schroath Bldg.,
Clarksburg, WV 26301 (Certified Mail)

1445

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.

20006

l 7 JU~ 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
THE HANNA MINING COMPANY,
Respondent
UNITED STEELWORKERS OF AMERICA,
Representatives of the miners

Civil Penalty Proceedings
Docket Nos.

A.c. Nos.

LAKE 79-101-M
LAKE 79-102-M
LAKE 79-103-M
LAKE 79-104-M
LAKE 79-134-M
LAKE 79-135-M
LAKE 79-136-M
LAKE 79-137-M
LAKE 79-138-M
LAKE 79-139-M

21-00249-05004
21-00249-05005
21-00807-05003
21-00807-05004
21-00807-05005
21-00807-05006
21-00814-05002
21-00814-05003
21-00814-05004
21-00814-05005

National Steel Pellet Co.
Butler Taconite Mill
DECISION
Appearances:

William c. Posternack, Esq., and Miguel J. Carmona, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner;
Richard A. Williams, Esq., Hvass, Weisman & King,
Minneapolis, Minnesota, for Respondent;
Harry Tuggle, United Steelworkers of America, Safety
& Health Department, Pittsburgh, Pennsylvania, for
Representative of the Miners.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
The above cases were commenced by the filing of petitions for the
assessment of civil penalties for allf>.ged violations of various mandatory safety standards in two of Respondent's mines. Prior to the
commencement of the hearing, Petitioner submitted motions seeking
approval of settlement agreements for certain of the violations and
seeking to vacate certain other citations. The motions were supplemented by statements of counsel on the record at the commencement of
the hearing.

1446

Pursuant to notice, the citations and violations alleged therein,
not covered by the settlement agreement, were heard on the merits in
Minneapolis, Minnesota, on April 23, 24 and 25, 1980.
Leon Mertesdorf and Francis R. Bye, Federal mine inspectors and
Martin Stimac testified for Petitioner. Wallace Choquette and William
Waite testified for Respondent. Counsel agreed that, provided they be
given the opportunity to orally state their respective positions on the
record following the evidence with respect to each of the contested
citations, they would waive their rights to file written proposed
findings and briefs. Accordingly, I issued a decision from the bench
following the receipt of the evidence on each citation and the arguments of counsel. The rulings from the bench are set out below following a discussion of the proposed settlement agreements.
SETTLEMENT AGREEMENT
Docket No. LAKE 79-101-M
Citation No. 29403 was originally assessed at $114. The parties
agreed to settle the matter for the payment of $90 on the grounds that
both gravity and negligence were very low and had been overevaluated
by the Assessment Office. Citation No. 293420 was originally assessed
at $84. Petitioner moved to have it vacated on the ground that further
investigation of the facts disclosed that the alleged violation did not
occur. Citation No. 293421 was originally assessed at $78. The parties
agreed to settle the matter for the payment of $60 on the grounds that
gravity and negligence were low and Respondent took immediate action to
correct the condition. Citation No. 293423 was originally assessed at
$470. The parties agreed to settle the matter for the payment of $235.
I stated on the record that I was not satisfied with the reasons given
for the reduction in the assessed amount, and subsequently the parties
stated that it was agreed that Respondent would pay the assessed
amount, $470.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the criteria in
section llO(i) of the Act, the motion to approve the settlement agreement is GRANTED.
Docket No. LAKE 79-102-M
Citation No. 293405 was originally assessed at $98, and the parties
agreed to settle the matter for the payment of $98. Citation
No. 293412 was originally assessed at $106, and the partiea agreed to
settle the matter for the payment of $106. Citation No. 293413 was
originally assessed at $130. The parties agreed to settle the matter
for the payment of $90, on the grounds that the gravity of the violation
was overevaluated by MSHA, and the operator immediately abated the

1447

condition. Citation No. 293416 was originally assessed at $160. Petititioner moved to have it vacated on the ground that further investigation revealed that the violation charged did not occur. Citation
No. 293419 was originally assessed at $130. The parties agreed to
settle the matter for the payment of $100 on the grounds that the
gravity and negligence were minimal and had been overevaluated.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the criteria in section llO(i) of the Act, the motion to approve the settlement agreement
is GRANTED.
Docket No. LAKE 79-103-M
Citation No. 290182 was originally assessed at $98. Petitioner
moved to have it vacated on the ground that further investigation
revealed that the violation charged did not occur. Citation No. 290183
was originally assessed at $130. The parties agreed to settle the
matter for the payment of $90, on the ground that the gravity and negligepce were low, and that the condition was abated immediately. Citation
No. 290184 was originally assessed at $140. The parties agreed to
settle the matter for the payment of $100, on the grounds that the
gravity and negligence of the violation were low, and the condition was
abated immediately. Citation No. 290185 was originally assessed at
$98, and the parties agreed to settle the matter for the payment of $98.
Citation No. 290186 was originally assessed at $72. The parties agreed
to settle the matter for the payment of $50, on the ground that gravity
and negligence were very low. Citation No. 290187 was originally
assessed at $72. Petitioner moved to have it vacated on the ground that
the violation charged did not actually occur. Citation No. 294620 was
originally assessed at $72. The parties agreed to settle the matter for
the payment of $66, on the grounds that the violation was not serious
and was abated immediately.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the criteria in section llO(i) of the Act, the motion to approve the settlement agreement
is GRANTED.
Docket No. LAKE 79-104-M
Citation No. 290199 was originally assessed at $98. Petitioner
moved to have it vacated on the ground that the violation charged did
not occur.
Based upon the representations of counsel, the motion is GRANTED.
Docket No. LAKE 79-134-M
Citation No. 294639 was originally assessed at $160. The parties
have agreed to settle the matter for the payment of $120, on the

1448

grounds that the gravity and negligence of the violation were very
low and Respondent abated the condition in less than one half of the
time permitted in the citation. Citation No. 294640 was originally
assessed at $140. The parties have agreed to settle the matter for the
payment of $110, on the same grounds as were set forth concerning the
citation immediately preceding this. Citation No. 294643 was originally assessed at $140. Petitioner moved to have it vacated on the
ground that it was erroneously issued and the charged violation did not
occur. Citation No. 294677 was originally assessed at $122. Petitioner moved to have it vacated on the ground that the condition found
did not constitute a violation of the safety standard cited.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the criteria in section llO(i) of the Act, the motion to approve the settlement agreement
is GRANTED.
Docket No. LAKE 79-135-M
Citation No. 294625 was originally assessed at $150.
Petitioner
moved to have it vacated on the ground that the alleged violation did
not occur.
Based upon the representations of counsel, the motion is GRANTED.
Docket No. LAKE 79-136-M
Citation No. 294649 was originally assessed at $84. The parties
have agreed to settle the matter for the payment of $56, on the grounds
that the gravity and negligence of the violation were very low and the
condition was immediately abated. Citation No. 294673 was originally
assessed at $98. The parties have agreed to settle the matter for the
payment of $70 on the same grounds as were set forth concerning the
citation immediately preceding. Citation No. 294680 was originally
assessed at $106. Petitioner moved to have it vacated on the ground
that the citation was issued in error, and the violation charged did
not occur. Citation No. 294688 was originally assessed at $72. Petitioner moved to have it vacated on the ground that it was issued in
error and the violation charged did not occur.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the criteria in section llO(i) of the Act, the motion to approve the settlement agreement
is GRANTED.
Docket No. LAKE 79-137-M
Citation No. 294694 was originally assessed at $106. The parties
have agreed to settle the matter for the payment of $106. Citation
No. 294697 was originally assessed at $84. The parties have agreed

1449

to settle the matter for the payment of $70 on the grounds that the
gravity and negligence were both very low. Citation No. 294700 was
originally assessed at $78. The parties have agreed to settle the
matter for the payment of $40, on the ground that the gravity of the
violation was overevaluated by MSHA. Citation No. 294701 was originally assessed at $114. Petitioner moved to have it vacated on the
ground that further investigation revealed that the condition did not
constitute a violation of the safety standard cited. Citation
No. 294702 was originally assessed at $78. The parties have agreed
to settle the matter for the payment of $60 on the grounds that the
gravity and negligence were very low and the condition was abated
immediately. Citation No. 294709 was originally assessed at $84.
Petitioner moved to have the citation vacated, on the ground that it
is unable to establish that the violation charged actually occurred.
Citation No. 294715 was originally assessed at $66. The parties have
agreed to settle the matter for the payment of $36 on the grounds
that the gravity and negligence were very low and the condition was
abated immediately. Citation No. 294716 was originally assessed
at $84. The parties have agreed to settle the matter for the payment
of $50 on the grounds that the gravity and negligence were very low.
Based upon the representations of counsel, the documents submitted in support of the motion, and a consideration of the criteria
in section llO(i) of the Act, the motion to approve the settlement
agreement is GRANTED.
Docket No. LAKE 79-138-M
Citation No. 294721 was originally assessed at $84. The parties
have agreed to settle the matter for the payment of $50, on the grounds
that gravity and negligence had been overevaluated by MSHA.
Based upon the representations of counsel, the documents submitted
in support of the motion, and a consideration of the" criteria in section llO(i) of the Act, the motion to approve the settlement agreement
is GRANTED.
CONTESTED CITATIONS
Prior to testimony being received, Petitioner introduced MSHA
Exhibit 1, the history of prior violations and entered into the following stipulation as to the size of Respondent:
MR. POSTERNACK: Okay. At this time also with respect
to the factors in assessing the penalty, the parties were
able to reach a stipulation that with respect to the size
of the Butler Taconite Mine, that it had annual man hours
of 520,515; that as far as production is concerned, it's
production approximated 2.6 million tons. The parties
further are in agreement that this mine when compared to
other taconite operations would be considered a small mine.

1450

With .respect to the size of National Steel, the mine
involved.in Citation, in Case 79 Lake 102, the parties have
stipulated that with respect to man hours of production,
the man hours of production were 927,035; that it's projected production in terms of tonnage was 6.0 million tons;
and that when compared to other taconite operations, this
mine would be an average size mine.
Based on the stipulation and on the information in Exhibit 1, I
find that Respondent is a medium-sized operator, and its history of
prior violations is not such that penalties should be increased because
of it.
BENCH DECISION
The contested citations were decided from the bench following the
presentation of evidence and argument on each citation the decisions
are set out below as they appear in the transcript.
Docket No. LAKE 79-102
[Citation No. 293409]
JUDGE BRODERICK: Although I have some doubt as to
whether the condition cited was properly cited as a violation of 55.11-12 or should have been cited as a violation
of 55.11-2, I do find that the evidence establishes that
the condition cited was a violation of 55.11-12. I find
that the evidence shows that there was an opening near a
travelway around the drill in question, and that the standard requires that tha~ opening be protected by a railing.
In fact it was not protected by a railing or other barrier.
Because of the condition testified to by Mr. Mertesdorf
that the, there was a slippery footing on the walkway, that
other conditions could cause further slippery footing, I
find that the violation was serious, because had a person
using this travelway slipped and fallen through the opening,
he could have sustained serious injury.
The condition was clearly known to the operator. I
find that the danger should have been known to the operator.
However I would not charge the operator with serious negligence, because the condition obviously was built into the
piece of equipment by the manufacturer of the equipment.
I find .further that the condition was abated by the
operator in accordance with the citation in good faith by
the establishment of a chain across the opening.

1451

Considering the stipulation of facts with respect to
the citation with respect to the size of the operator, may
I ask Mr. Posternack whether there in the MSHA Exhibit No. 1
are there, is there a previous history of violations of
th is st and a rd?
MR. POSTERNACK: The clerical assistant in our office
is going through that. And I think review of the Exhibit 1
would show that there have 9een seven assessed violations
of Standard 55.11-12.
JUDGE BRODERICK:

Over a period of how long?

MR. POSTERNACK: I would assume it's the two-year
period covered by the printout.
JUDGE BRODERICK: And that has to do with all the
operations of the Company?
MR. POSTERNACK: I believe it was all that we were
provided, so I would have to say yes.
JUDGE BRODERICK: I will consider that the history
of prior violations is not such that the penalty should be
increased because of the history.
Considering all of the factors, all of the criteria
set out in Section llO(i) of the Federal Mine Safety and
Health Act, I will assess a penalty for this violation of
$200.
Docket No. LAKE 79-103
JUDGE £RODERICK: I will find that on January 23rd,
1979 the ber.m at the dumping site of the Buttler Taconite
Mine described in Citation 290181 was not sufficient to
prevent overtravel or overturning. · The evidence does not
establish that other means were provided to prevent overtravel or overturning at the site in question. ThP.refore
a violation of 30 CFR 55.9-54 was established by the
evidence.
I find that the violation was moderately serious,
because it could have resulted in an injury to the operator
of the vehicle used at the dumping site. I find that the
operator should have known of the inadequacy of the berm in
question. I find that the violation was abated by the
operator in good faith. And I will assess a penalty of
$100 for the violation.

1452

JUDGE BRODERICK: With respect to Citation 294619, I
find that.the evidence does not establish a violation of
the mandatory standard cited, namely 30 CFR 55.9-2. All of
the safety standards under section 55.9 refer to loading,
hauling, and dumping, and the vehicles, roadways, and
equipment used in connection with loading, hauling, and
dumping.. The evidence does not establish here that the
equipment involved, namely the wire rope sling, is equipment used in connection with loading, hauling, or dumping.
I do not believe that this standard is intended to
cover the situation testified to. If MSHA wishes to cite
for a general duty standard, a regulation applying such a
standard should be promulgated by proper rule-making procedures. Therefore I conclude that the violation charged
was not shown, and I will vacate the citation.
JUDGE BRODERICK: With respect to Citation No. 294628,
I find that on January 25th, 1975 guards on the head pulley
of the pellet loadout belt were not secured in their
mounting brackets. I find that a violation of the mandatory standard in 30 CFR 55.14-6 was established. I am
inferring based upon the testimony of Mr. Bye that pellets
had been loaded out on the day of the inspection. And from
his testimony with 1 respect to the lack of footprints in the
dust in the area adjacent to the guards, I am inferring
that the guards were not in place while the belt was being
operated. There is no evidence that testing was being done
at or about the time of the inspection.
I further find that the operator should have known of
this condition and therefore was negligent in permitting it
to have occurred. I find that the violation was not a
serious violation, that the chance of an employee being
injured as a result of the condition was remot~~ I will
assess a penalty in the amount of $75 for the violation
found.
JUDGE BRODERICK: With respect to Citation No. 294629,
the evidence, I find that the evidence establishes that
there was a means of access to a working place in the tail
pulley area of the housing £or the pellet loadout belt
which was not a safe means of access because of the lack
of a guard on an overhead belt. I conclude that this shows
a violation of 30 CFR 55.11-1, even though there was
another means of access to the same working place which was
safe.
I find that the operator knew or should have known of
this condition prior to its being cited for it. I find

1453

that the condition was not serious in that the possibility
of an injury as a result of the violation was remote. The
operator promptly abated the violation in good faith by
installing an overhead guard. I will assess a penalty of
$75 for the violation.
Docket No. LAKE 79-104-M
JUDGE BRODERICK: With respect to Citation No. 290189,
I find that on January 23rd, 1979 in a shovel house on the
premises of the Butler Taconite Mine the guard on the
V-belt drive assembly connected with an air compressor was
not securely in place because· of a missing bolt and loose
bolts. I infer from the testimony of Mr. Bye that this
condition had existed while the machinery had been in
operation. While the machinery in fact was µot in operation
at the time of the inspection, there is no evidence that
the machinery was being tested at the time of the inspec- tion. Therefore I conclude that the evidence shows a violation of 30 CFR 55.14-6.
The condition was such that the Respondent by the exercise of ordinary care should have known of it before the
inspector cited the condition. Based upon the testimony of
Mr. Bye, I find that the condition was not serious, although
Mr. Bye's conclusion that it was not serious seems to be
solely based on the fact that it wasn't, the machinery was
not in operation. However there is no evidence that it was
in fact a serious condition. The evidence shows that the
condition was abated in good faith within the time prescribed in the citation. I assess a penalty for this
violation of $75.
JUDGE BRODERICK: With respect to Citatio~_290190, I
find that on January 23rd, 1979 at the Butler Taconite Mine
on a stairway to the top of a shovel there was a broken
handrail. Evidence of rust at the site of the break indicates that the condition had been present for some time
prior, for some days. The standard in question requires
that stairways be provided with handrails and be maintained
in good condition. The evidence establishes a violation of
the standard, since the handrail to the stairway in question
was not maintained in good condition.
This condition should have been known to the Respondent.
As I said, the evidence establishes that it had been present
for some time. The condition was moderately serious,
because it could have resulted in an injury to an employee

1454

using that stairway. It was abated promptly by the Respondent in good faith by securing the handrail by a weld in
place. I assess a penalty of $150 for the violation
established.
JUDGE BRODERICK:

Could I see the photograph?

With respect to Citation 290192, on January 24, 1979 at
the Butler Taconite Mine the access stairs to drill No. 7511
were distorted and loose. There was a decline to the right
on each stair. The stairway did not completely retract
because of this distortion, and this contributed to the fact
that the bottom stair was at the time of the inspection
twenty-four to twenty-eight inches from the ground. These
conditions which I find exist constituted-an unsafe means
of access to this working place, namely the drill. The
drill was in service and operating at the time of the
inspection. It, the stairs were used by the drill operator,
his helper, and any necessary maintenance personnel.
This condition obviously had existed for some time and
should have been known to the operator. The condition was
moderately serious. The probability of an injury was
relatively small resulting from this condition. The
operator abated the condition by tepairing the stairway and
did so promptly. I will assess a penalty of $100 for the
violation which I find.
JUDGE BRODERICK: With respect to Citation 290200, I
find that on January 24, 1979 a safe means of access was
not provided to the Harrison pit pump station on the
property of the Butler Taconite Mine, in that there was a
path down an earthen bank without stairs or railing or rope
to prevent a slip or fall; and that this was the means of
access to the pit pump station, which was a working area.
The bank was not as steep as Inspector Bye testified, but
the, there, it was at an incline and the danger of slipping
and falling still existed. Therefore I conclude that a
violation of 30 CFR 55.11-1 was established by the evidence.
Since the area is regularly visited by Respondent's
agents and employees, Respondent should have known of the
condition. The condition was moderately serious, in that
an employee could have been injured by slipping or falling
on the bank. It was abated promptly by Respondent in good
faith within the time set in the citation. I will assess
a penalty of $100 for this violation.

1455

Docket No. LAKE 79-136-M
JUDGE BRODERICK: With respect to Citation 294681, I
find that the evidence fails to establish that the condition cited constituted a violation of 30 CFR 55.9-11. A
replacement, the evidence shows that a replacement windshield had been ordered because of the existing crack in
the windshield. And the evidence does not show that the
dirt and dust on the windshield and windows impaired the
vision of the driver. For these reasons a violation of
this standard was not shown, and the citation is vacated.
JUDGE BRODERICK: With respect to Citation 294684, I
find on the basis of the evidence presented that there
was a missing section of handrail around the sump pump in
the secondary basement of the concentrator building and
another section of the handrail in need of repair. I find
however on the basis of the definition of a travelway in
30 CFR 55.11-12 that this is not an opening near a travelway through which men may fall. Therefore a violation of
30 CFR 55.11-12 was not established, and the citation is
vacated.
Docket No. LAKE 79-137-M
JUDGE BRODERICK: With respect to Citation 294696, I
think the most difficult issue is whether in fact this
constitutes a travelway. And I conclude that it does,
because the area is used regularly if infrequently as a
way for persons to go from one place to another. The
evidence clearly establishes that there was an opening
near this travelway. I conclude that if a person could
fall into or through such an opening or materials could
fall into or through such an opening, that the standard
requires that this opening be protected by railings,
barriers, or covers. I further conclude that the toeboard
around the opening in question here does not constitute
a sufficient protection in contemplation of the standard.
Therefore I conclude that a violation of 30 CFR 55.11-12
was established.
The condition obviously had existed for some time and
was, was or shoul.d have been known to the operator. The
condition was moderately serious, because it could have
resulted in injury to a workman. The operator abated the
condition within the time limit of the citation. I would
assess a penalty of $150 for the violation found.
JUDGE BRODERICK: With respect to Citation 294707 that
charges a violation of 30 CFR 55.11-27, which requires that

1456

scaffolds and working platforms shall be provided with
handrails, I do not believe that the system testified to,
whereby a travelway handrail was taken off and used as a
handrail for a working platform when the working platform
was in use, complies with the standard. Therefore I conclude that a handrail was not provided on the elevated
work platform described in the citation. I conclude therefore that the evidence shows a violation of 30 CFR 55.11-27.
The condition was such that the operator was aware of
the lack of the handrail or should have been aware of it.
The condition cited was moderately serious because of the
possibility of a workman using this platform slipping and
falling from a height of approximately three feet. The
condition was promptly abated with the time limits set
in the citation. I assess a penalty of $15Q for t~is
violation.
Docket No. LAKE 79-138-M
JUDGE BRODERICK: With respect to Citation 294723, the
evidence shows that the, a metal ladder in the reclaim area
of the subject mine had its second and third rungs bent and
distorted down and slightly inward. I believe that this
condition is a violation of 55.11-3, which requires that
ladders be maintained in a good condition.
The evidence does not show that the Respondent was
negligent or that his negligence caused this condition. The
evidence does not indicate that the violation was serious.
The violation was abat~d by immediately taking the ladder
out of use. I will assess a penalty of $50 for the violation found.
Docket No. LAKE 79-139-M
JUDGE BRODERICK: With respect to Citation 294645, I
find that a barrel of lubricant or more than a single barrel
of lubricant was or were present on the fourth floor of the
screen house in the Butler Taconite plant. I find that for
whatever reason, the seal had been broken and lubricant had
been dispensed from the barrel. I find that this constitutes a rather low level of fire or explosion hazard. There
was no sign posted warning against smoking or open flame in
this area. Therefore a violation of 30 CFR 55.4-2 was
established.
The evidence establishes that the condition was not due
to Respondent's negligence. It further establishes that the

1457

--~-·

-- --

condition was not serious.
diately by the Respondent.
for this violation.

The violation was abated immeI will assess a penalty of $50

JUDGE BRODERICK: Respecting Citation No. 294653, I
find.that the extension ladder which was being in, used in
the screen house and is shown on MSHA Exhibit 44(b) had two
bent rungs, one rather seriously bent. I further find that
the same ladder had a distorted stringer. Because of these
conditions, the ladder was not maintained in good condition.
I further find that the evidence does not establish
that the ladder shown in MSHA Exhibit 44(a) was not maintained in good condition.
Therefore with respect to the ladd~~ shown in MSHA
Exhibit 44(b), the evidence establishes a violation of
30 CER 55.11-3. This condition was obvious and should have
been known to Respondent. The condition was moderately
serious, in that it could have caused an injury to a person
using that ladder. The condition was abated immediately in
good faith by the Respondent. I assess a penalty of $100
for this violation.
JUDGE BRODERICK: With respect to Citation No. 294654,
I find that there was an accumulation of ice on the bottom
stairway leading from the bottom floor of the screen house
in the subject mine. I find that this was a regularly used
travelway. It's not clear from the evidence how long this
condition had existed. But in view of the cause of the
accumulation, namely from a drip or a spray from a pipe
above, and in view of the time of the inspection, which was
more than three hours after the beginning of the shift, I
infer that the accumulation had been there_ for some time,"
and that therefore it was not cleared of the ice as soon as
practicable.
The evidence shows that the condition was due to
Respondent's negligence, but the negligence was minimal in
view of the extraordinary temperature conditions. The condition was not serious and was abated immediately by the
Respondent. I will assess a penalty of $50 for the
violation found.
JUDGE BRODERICK: With respect to Citation 294660, I
find that on the seventh floor of the concentrator building
on the, what was described as the ruffer drum line, there
were a number of couplings on drive shafts which had exposed
studs or screws. Some of these couplings, three or four had
guards preventing anyone from exposure to these studs, and

1458

some of them did not. The shafts were approximately five
and a half feet in height. They were adjacent to a regularly used walkway and were approximately eighteen inches
in from that walkway. I find that this condition constituted exposed moving machine parts which could be contacted
by persons· and could cause injury. Therefore I find a
violation of 30 CFR 55.14-1.
This condition should have been known to Respondent,
especially since some of the couplings had already been
guarded. The condition was relatively nonserious because
of the fact that the exposed moving parts were considerably
in from the walkway and the likelihood of injury was
relatively low. The Respondent abated the condition
promptly and in good faith. I will assess a penalty of $75
for this violation.
JUDGE BRODERICK: With respect to Citation 294667, I
find that on February 15, 1979 on the second floor of the
concentrator building of the subject mine there was a means
of access to a working place covered with a large rock
spill, that is a large spill of rock from an elevated walkway above. This rock had fallen from this walkway or been
discharged from the walkway, and the material was still
falling at the time of the inspection. These conditions,
both the falling debris and the debris on the floor, made
this an unsafe means of access to a working place. Therefore a violation of 30 CFR 55.11-1 was established by the
evidence.
This is a condition which should have been known to
Respondent prior to the inspection. The condition was
relatively serious, because it could have resulted in
injury, either by workmen being struck by falling debris
or by a workman slipping and falling as a result of the
unsure footing caused by the debris on the floor. The
condition was relatively serious as stated. It was abated
immediately by Respondent in good faith by the barricading
of the area against entry. I will assess a civil penalty
in the amount of $100 for this violation.
The decisions from the Bench, set out above, are hereby
affirmed.
RECAPITULATION
The penalties assessed herein by reason of my findings ·following
the evidentiary hearing and by reason of my approval of settlement
agreements, and the citations vacated are as follows:

1459

Docket No. LAKE 79-101-M
Citation No.

30 CFR
Standard

Penaltz

293403
293420
293421
293423

55.11-3
55.4-23
55.11-27
55.14-26

$ 90
Vacated
60
470

55.20-3
55.11-12
55.11-27
55.11-27
55.11-1
55.11-1

98
200
106
90
Vacated
100

55.9-.?4
55.12-26
55.11-1
55.11-1
55.4-23
55.9-11
55.11-1
55.9-2
55.9-2
55.14-6
55.11-1

100
Vacated
90
100
98
50
Vacated
Vacated
66
75
75

55.14-6
55.11-2
55.11-1
55.12-26
55.11-1

75
150
100
Vacated
100

55.14-6
55.11-2
55.9-7
55.4-4

120
110
Vacated
Vacated

55.12-6

Vacated

Docket No. LAKE 79-102-M
293405
293409
293412
293413
293416
293419
Docket No. LAKE 79-103-M
290181
290182
290183
290184
290185
290186
290187
294619
294620
294628
294629
Docket No. LAKE 79-104-M
290189
290190
290192
290199
290200
Docket No. LAKE 79-134-M
294639
294640
294643
294677
Docket No. LAKE 79-135-M
294625

1460

Docket No. LAKE 79-136-M
55.14-6
55.11-12
55.9-2
55.9-11
55.11-12
55.12-8

294649
294673
294680
294681
294684
294688

56
70
Vacated
Vacated
Vacated
Vacated

Docket No. LAKE 79-137-M
55.11-2
55.11-12
55.12-13(e)
55.14-1
55.11-1
55.14-1
55.11-27
55.14-8(b)
55.11-1
55.11-2

294694
294696
294697
294700
294701
294702
294707
294709
294715
294716

106
150
70
40
- Vacated
60
150
Vacated
36
50

Docket No. LAKE 79-138-M
294721
294723

55.14-1
55.11-3

50
50

55.4-2
55.11-3
55.11-16
55.14-1
55.11-1

50
100
50
75
100

Docket No. LAKE 79-139-M
294645
294653
294654
294660
294667

ORDER
In accordance with the above findings, Respondent is ORDERED to
pay the sum of $3,786 within 30 days of the date of this decision.

)

CMi<L5

Ab.wiuie)z___

James A. Broderick
Chief Administrative Law Judge

1461

Distribution:

By certified mail.

William C. Pasternack and Miguel J. Carmona, Office of the Solicitor,
Department of Labor, 230 South Dearborn St., Chicago, IL 60604
Richard W. Williams, Hvass, Weisman and King, 715 Cargill Building,
Minneapolis, Minnesota 55402
Harry Tuggle, United Steelworkers of America, Five Gateway Center,
Pittsburgh, PA 15222
Thomas Mascolino, Esq., Counsel for Trial Litigation, Office of the
Solicitor, Division of Mine Safety, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203

1462

FEDERAL
-·- MINE
____ , __SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES .
SKYLINE TOWERS NO. 2, IOTH FLOOR
52a3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

1 7 JUN 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. HOPE 79-3-P
A.C. No. 46-04988-03001

Petitioner
v.

Docket No. HOPE 79-95-P
A.c. No. 46-04988-03002

E & J COAL CORPORATION,
Respondent

Docket No. WEVA 79-246
A.c. No. 46-04988-03007
Docket No. WEVA 79-247
A.c. No. 46-04988-03008
Docket No. WEVA 79-302
A.C. No. 46-04988-03009
Docket No. WEVA 79-303
A.c. No. 46-04988-030 10
Docket No. WEVA 79-390
A.c. No. 46-04988-03012V
Docket No. WEVA 79-391
A.c. No. 46-04988-03013
Docket No. WEVA 79-392
A.c. No. 46-04988-03014V
Docket No. WEVA 79-458
A.c. No. 46-04988-03015V
Docket No. WEVA 79-459
A.C. No. 46-04988-03016
Docket No. WEVA 80-37
A.C. No. 46-04988-03018
No. 3 Mine

1463

DECISION
Appearances:

Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Georges. Bennett, Esq., Charleston, West Virginia,
for Respondent.

Before:

Administrative Law Judge Melick

These consolidated cases are before me upon proposals 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~·· hereinafter referred to as the "Act").
Since E & J Coal Corporation TE" & J) admits the violations charged in the
citations and orders before me, the only remaining issues to be determined
are the appropriate civil penalties that should be assessed under section
llO(i) of the Act. The penalties proposed by MSHA in these cases total
$35,082.
In determining the amount of a civil penalty assessment, section llO(i)
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) the effect on the operator's ability to
continue in business, (4) whether the operator was negligent, (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.
The parties have reached factual stipulations regarding the latter three of
these criteria, i.e.: the negligence of the operator, the gravity of the
violations and the-operator's good faith in attempting to achieve rapid compliance. I accept those stipulations which are attached hereto as an appendix and I incorporate them herein as my findings. There is, in addition, no
disagreement regarding the operator's history of violations. Based on the
evidence submitted, I find that it is a significantly bad history, including
an extraordinary number of sectionJ.04(b) withdrawal orders. 'J:.!
Two specific considerations remain, i.e., the appropriateness of the
penalty to the size of the operator's business and the effect of the penalty
on the operator's ability to continue in business. The evidence shows that
E & J's annual production in 1978 when it had about 30 employees was about
50,000 tons. At the time of hearing on March 24, 1980, it had no production
and no employees. E & J does, however, retain a coal lease for 400 acres
containing an estimated 250,000 tons of coal and which was recently offered
1/ Withdrawal orders are issued pursuant to section 104(b) only after a
violation has been cited under section 104(a) and has not thereafter been
timely abated.

1464

for sale at $400,000. I also note that E & J is controlled by the Saunders
Coal Corporation which, in turn, owns two other coal companies. !:._/ According
to the information made available at hearing, none of these companies was
actively engaged in the mining of coal although it was represented that one
had recently applied for a state coal-mining permit. All of these factors
relating to size have been considered in arriving at the appropriate penalties.
MSHA contends that since the operator is admittedly not in business and
has not been since February 1979, and since it is not likely to resume business, the amount of penalty would have no effect on its ability to stay in
business and argues, therefore, that this criterion is irrelevant to the
instant proceeding. I agree. The generally accepted justification for
adjusting penalties to permit ·continuing coal production and employment of
miners is not applicable under the circumstances of this case where the
.company has not been in the coal producing business for more than a year
and the evidence warrants a conclusion that it would not resume such business
whether or not penalties were imposed. Robert G. Lawson Coal Co., 1 IBMA 115
(1972) and Secretary v. Davis Coal Company, 2 FMSHRC 619 (1980) are therefore
distinguishable.
E & J urges that its financial condition should nevertheless be considered in mitigati~n of the penalties. The financial evidence submitted is,
however, totally inadequate. There are no certified audits nor even current
tax returns. The affidavit and testimony of E & J president George Jarroll
is essentially worthless in this regard inasmuch as he admitted at hearing
that he had no specific personal knowledge of the Company's financial condition. Moreover the evidence of depleted bank accounts, creditors' suits and
2-and 3-year old tax returns does not provide essential information of current
net worth and the current market value of unencumbered assets such as its
coal reserves. While I recognize that collection of the penalties may be
difficult in these cases because of the apparent nonliquidity of E & J's
prime asset, I do not consider this to be an appropriate ground for reducing
the penalties in these cases.
In summary, the evidence in these cases demonstrates that the operator
has been guilty of numerous serious violations resulting from its negligence
and that it has frequently failed to achieve appropriate and timely abatement
of these violations. There is, on the other hand, little justification for
reduction of penalties. The penalties must be sufficient to deter those who
control the corporate network of which E & J is but a part as well as others
who may be similarly situated. Under the circumstances, I find that the
following penalties are appropriate and Respondent is ordered to pay these
amounts, totaling $29,375, within 30 days of this decision:
'l:_/ Saunders Coal Corporation owns 80 percent of the voting stock of E & J
and Mr. and Mrs. Rob Saunders own the remaining 20 percent. The Saunders,
in turn, own 100 percent of the Saunders Coal Corporation. Rob Saunders
is vice president, secretary and treasurer of E & J and the evidence shows
that he made significant operational and financial decisions for E & J.

-- -Citation or Order Number

Penalty

Docket No. WEVA 79-246
53383
53384A

175
700
200
700
700
300
300
200
100
200
200
150
150
200
150
150
200
300
100
150

$

B

c
D
E
F
G

53385
53386
53387
53388
53389
53390
53393
53394
53395
53396
53397
53398
Citation or Order Number

Penalt;l

Docket No. WEVA 79-247
53399
55096
55097
55098
55099
55100
55101

100
150
200
200
300
·150
100

$

Citation or Order Number

Penaltl

Docket No. WEVA 79-302
55104
55669
55670
55671
55673
55674
55675
55676
55677

$

1466

100
200
150
150
100
200
150
200
150

55678
55679
55682
55683
55684
55685
55686
55687
55688
55689
55690

200
200
100
150
300
150
300
150
300
400
100

Citation or Order Number

Penalty

Docket No. WEVA 79-303

55691
55692
55693

$

Citation or Order Number

200
100
500

Penaltx:

Docket No. WEVA 79-390

55668
55672
55681

$

Citation or Order No.

800
800
800

Penalty

Docket No. WEVA 79-391

55563
55564
55565
55567
55570
55571
55572

$

55573

55574
55576
55577

55578
55579
55580

1467

200
100
200
-100
100
150
200
100
150
150
100
100
150
150

-

--

Citation or Order Number

Penaltz
I

Docket No. WEVA 79-392
53391
53392

$

Citation or Order Number

500
700
Penalty

Docket No. WEVA 79-458
55566
55568
55569

$

Citation or Order Number

700
700
700
Penaltz

Docket No. WEVA 79-459
55562
55575

$

Citation or Order Number

200
100

Penaltz

Docket No. WEVA 80-37
9908524
559941

$

Citation or Order Number

100
150
Penaltz

Docket No. HOPE 79-3-P
7-0095
7-0096
7-0097
7-0098
7-0099
43361
43362
43363
43365
43366
45741
45742
45744
45745
45746
45747
45748

$

1468

200
200
200
_200
200
150
200
200
300
200
200
400
200
300
200
150
300

45749
45750(A)
45750(B)
46294
46295

200
400
500
300
500

Citation or Order Number

Penalty

Docket No. HOPE 79-95-P

$

43367
43368
43530
43531
43532
43533
43534
43535
43536
43537
43538
43540
43542
43543
43544
45743
46297
46298
46299
46300
otal

100
300
100
100
100
200
300
150
300
200
300
100
400
400
200
200
150
200
300
300
5

ll. I

, ',1L\ -~
r

1
•ry
dmini trativ~ L w Judge
1
\

1

j

Distribution:

\

Barbara Kraus_e Kaufmann, Esq., Office ~f he Sol\ci or, U.S. Department
of Labor, 3535 Market Street, Philadelp ia, PA
04 (Certified Mail)
.

\

.

George s. Bennett, Esq., Kay, Casto and haney, Charleston National
Plaza, P.O. Box 2031, Charleston, WV 25327 (Certified Mail)
I

1469

APPENDIX
Docket No. WEVA 79-246 - Citation No. 53383
1.

The intake air course entry was not separated from the belt
conveyor haulage entry as a permanent type brattice had been
knocked out in the third crosscut. This is a violation of
30 C.F.R. § 75.326.

2.

This constitutes low negligence. Although it should have
been detected and noted during the onshift examination, the
brattice had been taken down only for the purpose of
replacing the water pump. The operator had planned to
replace the brattice.

3.

There is a moderate probability of occurrence as any time
the air courses are not separated there is a possibility
that fire can spread from one entry to another.

4.

The possible occurrence from this condition is smoke or
fire travelling between the air courses.

5.

Eight employees were on the section affected by this citation.

Order No. 53384
This order is an imminent danger order consisting of seven different
violations. As to each of these violations, stipulations have been
reached as follows:
la.

Dangerous accumulations of loose coal and coal dust had accumulated along the entire l~ngth of the No. 1 belt conveyor
(1,000 feet) and the No. 2 belt conveyor (300 feet). Float
coal dust had accumulated in the No. 1 entry return air course
from 400 inby the main fan to the one right coal producing
section. This is a violation of 30 c.F.R. § 75.400.

b.

This constitutes high negligence. A very large area was
affected by these accumulations and the operator is charged
with keeping the area as clean as possibie. Accumulations
are difficult to control at the belt.

2a.

Twelve bottom rollers were missing and twenty top and bottom
rollers were frozen in violation of 30 C.F.R. § 75.1403-5.

b.

This condition constitutes moderate negligence as the equipment
in question had been placed there only thirty days before.

1470

3a.

The 250 volt direct current feeder wire was in contact with
combustible materials in three locations in violation of
30 C.F.R. § 75.516.

b.

This constitutes high negligence particularly when coupled
with the following violation as the operator must take extra
care to insure that live wires are not in contact with
combustibles.

4a.

The 250 volt direct current feeder wire outer jacket was
damaged in three areas that exposed the power wires in violation of 30 C.F.R. 1 75.517.

b.

This constitutes high negligence when coupled with the prior
violation as the operator must take extra care to keep
energized cables away from combustibles particularly where the
inner power wires are exposed.

5a.

The deluge type water fire suppression system provided for the
No. 2 belt conveyor head was not being maintained in an operative condition as seven water sprays were broken off and only
37 feet of the fire resistent belt was protected instead of
50 feet as the law requires. This is a violation of 30 C.F.R.
§ 75.1101.

b.

The operator was moderately negligent as most of the sprays
were operative and most of the belt was adequately protected.

6a.

Overload and short circuit protection was not provided for the
No. 2 belt conveyor head. The fuse nip ~as being bypassed and
the cable was connected directly onto the 250 volt direct
current feeder wire. No further stipulation has been agreed to
as to this particular citation. The parties are conducting
further investigation to determine the extent of this violation.

7a.

100 feet of the No. 2 belt conveyor flight was not provided.with
water lines and a fire hose outlets. This is a vi9lation of
30 C.F.R. 75.1100-2b.

b.

The operator was moderately negligent. The belt had been moved
during the night and the lines were not yet adequately extended
although the belt was in operation.

Ba.

The probability of occurrence in each of the above conditions,
when taken together, creates an imminent danger.

b.

The possible occurrences from these conditions include fire,
smoke or explosion.

c.

These conditions should have been detected through either
electrical or onshift examinations.

1471

d.

An imminent danger existed as the conditions or practices
observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the affected area of the coal mine before
the dangerous condition was eliminated.

e.

There were _eight employees on the working section affected by
this violation.

Citation No. 53385
1.

The coupling between the motor and speed reducer was not guarded
to prevent a person from coming in contact with moving parts.
This is a violation of 30 C.F.R. § 75.1722-A.

2.

This constitutes low negligence as the coupling was provided
with a factory guard.

3.

There is a moderate probability. of occurrence as men do travel
in the area affected by this citation.

4.

The probable occurrence from this condition is pinching or loss
of limbs.

5.

One employee would be affected by this condition.

Citation No. 53386
1.

The conveyor tail pulley on the belt conveyor flight was not
guarded to prevent a person from being caught between the belt
and the pulley. This is a violation of 30 C.F.R. § 75.1722-B.

2.

This constitutes low negligence as a factory guard was provided
but the guard was two inches above the mine floor to allow for
cleaning of the tail pulley.

3.

There is a moderate probability of occurrence as men do travel
in this area•

4.

The possible occurrence from this condition is pinching or loss
of limbs.

5.

One employee would be affected by this condition.

Citation No. 53387
1.

The drive sprocket chain on the No. 2 belt conveyor drive was
not guarded in violation of 30 C.F.R. § 75.1722-A.

1472

2.

This constitutes low negligence as a factory guard was supplied
on three sides. The only possible contact would be by lying
down and reaching in from the opposite side.

3.

The probability of occurrence is moderate as men were working
in the area of the drive sprocket.

4.

The possible occurrence is pinching or loss of limbs.

5.

One employee would be affected by this condition.

Citation No. 53388
1.

The sequence and slippage switch provided for the No. 2 belt
conveyor drive was not frame grounded to protect a person in
the event the frame would become energized. This is a violation of 30 C.F.R. § 75.703.

2.

This constitutes moderate negligence as the weekly examination
had been conducted and should have noted this condition.

3.

There is a moderate probability of occurrence as the frame was
not energized.

4.

The possible occurrence from this condition is electrocution.

5.

One employee would be affected.

Citation No. 53389
1.

The 250 volt direct current power cable entering the frame of
the remote control switch on the ~o. 2 belt conveyor head was
not provided with a proper fitting in violation of 30 C.F.R.
§ 75.515.

2.

This constitutes low negligence as the operator considered this
to be an armored cable with built-in protection not requiring
a fitting wit°hin the meaning of 30 C.F.R. § 75.515.

3.

There is a low probability of occurrence as the cable did have
built-in protection and was in good shape.

4.

The possible occurrence from this condition is electrical
shock.

5.

One employee would be affected by this condition.

1473

Citation No. 53390
1.

The drive chain on the chain conveyor being used on the one
right section was not guarded to prevent a person from coming
in contact with moving parts. This is a violation of 30 C.F.R.
§ 75.1722-A.

2.

There is low. negligence in this case as a factory guard was
provided.

3.

There is a moderate probability of occurrence as men were
working in this area.

4.

The probable occurrence is pinching or loss of limbs.

5.

One person would be affected by this condition.

Citation No. 53393
1.

The mining machine being used inby the last open crosscut was
not maintained in permissible condition. A cable roller was
damaged exposing bare metal to the trailing cable. Also, the
front headlight was not securely bolted to the frame. This is
a violation of 30 C.F.R. § 75.503.

2.

The operator was moderately negligence as these conditions
should have been observed during the weekly electrical examination. The fact that more than one problem existed with this
equipment indicates that the examination was not adequately
performed.

3.

It is improbable that an accident would occur as no methane had
ever been found in this mine.

4.

The possible occurrence from this condition is fire or smoke
inhalation.

5.

Eight employees were on the working section affected by this
citation.
.

Citation No. 53394
1.

Loose coal and coal dust ranging from 1 to 3 inches had accumulated on the frame of the miner in violation of 30 C.F.R.
§ 75.400.

2.

This constitutes moderate negligence. The miner is regularly
cleaned and accumulations gather through the course of normal
mining operations.

1474

3.

This constitutes moderate probability since the roller was
damaged and the headlight was not securely bolted on the same
piece of equipment.

4.

The possible occurrence from this condition is a fire.

5.

Eight employees were on the working section affected by this
citation.

Citation No. 53395
1.

The trailing caole provided for the loading machine being used
inby the last open ~rosscut contained three permanent splices
exposing inner power conductors in violation of 30 C.F.R.
§ 75.604B.

2.

The operator was moderately negligent as this should have been
observed during the weekly electrical examination.

3.

There is a moderate probability of occurrence as people work in
this area and handle this equipment.

4.

The possible occurrence from this condition is a fire or
electrical shock.

5.

One person would be affected by this condition.

Citation No. 53396
1.

The trailing cable provided for the mining machine being used
inby the last open crosscut contained two damaged permanent
splices which exposed the inner power conductors in violation
of 30 c.F.R. § 75.604-B

2.

This constitutes moderate negligence as it should have been
detected during the weekly examination.

3.

There is a moderate probability of occurrence as men work in
the area and handle this equipment.

4.

The possible occurrence from this condition is shock or fire.

5.

One employee would be affected by this condition.

Citation No. 53397
1.

The automatic fire sensor system provided for the No. 1 & 2
underground belt conveyor flights was not maintained in an
operative condition as the sensor cable was broken in two about
50 feet inby the belt entry portal. This is a violation of
30 C.F.R. § 75.1103-4.

1475

2.

This condition constitutes low negligence. The cable was
nicked by a small rock and the sensor alarm went off. The men
were preparing to repair the nick when the citation was
written. This was not within control of the operator.

3.

There is a low probability of occurrence. The condition
existed for a very short time and men were monitoring the area
at the time -the citation was written.

4.

The possible occurrence from this condition is a belt fire.

5.

Eight employees were on the working section affected by this
condition.

Citation No. 53398
1.

The guard provided for the No. 1 belt head drive rollers was
damaged and a person could become caught betwee.n. the belt and
drive rollers. This is a violation of 30 C.F.R. § 77.400C.

2.

This constitutes low negligence. The belt head was protected
with a factory guard which was designed for this head and
properly in place.

3.

There is a moderate probability of occurrence. However, the
top of the belt is six feet high and it is unlikely that
contact would occur.

4.

The accident which could occur from this condition is the loss
of limbs.

5.

One employee would be affected by this condition.

\

Docket No. WEVA 79-247 - Citation No. 53399
1.

The number 1 underground belt conveyor head was no~ provided
with a slippage switch in violation of 30 C.F.R. § 75.1102.

2.

The operator's negligence was low as the belt conveyor was
being repaired because of a damaged bearing and the belt was
without a switch for approximately one hour.

3.

There is a low probability because no ignition source existed
in the area. The belt was not moving and no methane had ever
been found in this mine.

4.

The possible occurrence from this condition is fire or
ignition.

5.

There were ten employees on the working section affected by
this citation.

1476

Citation No. 55096
1.

The feeder cable provided for the No. 2 belt conveyor head was
of an incorrect size in that the belt head was provided with a
size 4 cable instead of a size 3 that is correct for the
25 horse power motor. This is a violation of 30 C.F.R.
§ 75.513.

2.

The operator was moderately negligent as this should have been
detected during the weekly examination.

3.

The probability of occurrence is low. Although it is incorrect
to use a number 3 wire, the operator was using two number 3
wires yielding greater than the requirement for overload protection. Therefore, it is unlikely that an accident would
occur.

4.

The possible occurrence due to this condition is a fire due to
an overload.

5.

Three employees were on the working section affected by this
citation.

Citation No. 55097
1.

Overload and short circuit protection were not provided for the
chain conveyor section being used as a dumping point. This
unit was provided with 250 volt direct current. This is a
violation of 30 C.F.R. § 75.518. The operator should have
known from its preshift and onshift examination of this violation. Thus, this constitutes high negligence.

2.

There is a moderate probability of occurrence as the chain
conveyor was otherwise in good condition.

3.

The possible injury which could occur is shock or an ignition.

4.

Depending on the occurrence, one to eight people would be
affected.

Citation No. 55098
1.

The No. 2 belt conveyor flight was not provided with a remote
control circuit for the entire length of 350 feet. Thus, there
is no automatic way to stop or start the belt conveyor in
violation of 30 C.F.R. § 75.520.

2.

The operator was moderately negligent as this should have been
detected on the weekly examination.

1477

3.

There is-~ high probability of occurrence because this could
[be] turned off only at the belt head. Thus, someone 350 feet
from the belt head could be affected by this violation and
have no way to turn off the belt conveyor.

4.

The hazard caused by this condition are smoke inhalation, fire
or loss of limbs.

5.

Depending on what occurred, one to eight people would be
affected.

Citation No. 55099
1.

The outer jacket of the trailing cable provided for the loading
machine used on the one right section was damaged in fifteen
places that exposed the inner power conductors in violation of
30 C.F.R. § 75.517.

2.

The operator was moderately negligent as thi_s should have been
noted on the preshift or weekly examination.

3.

There is a moderate probability of occurrence as the inner
insulation was intact not exposing the wires themselves.

4.

The possible occurrence from this violation is electrocution.

5.

One employee would be affected.

Citation No. 55100
1.

The drive chain on the loading machine was not guarded to prevent a person from coming in contact with moving parts. This
is a violation of 30 C.F.R. § 75.1722.

2.

This violation constitutes low negligence although it should
have been detected on the onshift examination. The guard was
inadvertently torn off during the working shift_without
knowledge of the operator.

3.

There is a low probability of occurrence as the guard was
missing on the side opposite from which the operator worked.

4.

The possible occurrence from this condition is loss of limbs.

5.

One employee would be affected by this violation.

Citation No. 55101
1.

The coupling between the motor and pump on the dewatering
pump was not guarded to prevent a person from coming in contact
with moving parts. This is a violation of 30 C.F.R. § 75.1722A.

1478

2.

The operator was moderately negligent as this should have been
detected during the onshift examination.

3.

There is a low probability of occurrence as the pump was not
energized and there were no moving parts at the time the
citation was issued.

4.

The possible injury which could occur is a loss of limbs.

5.

One employee would be affected by this condition.

Docket No. WEVA 79-302 - Citation No. 55104
1.

The loading machine serial number 8565 being used inby the last
open crosscut on the one right section was not being maintained
in permissible condition in that a hole had been burned onehalf inch into the flame path of the plane flange j_oint of the
right side of the tram motor in violation of 30 C-.F .R. § 75.503.

2.

This violation constitutes low negligence as it is difficult to
detect an opening this small. However, it could have been seen
on the weekly electrical examination.

3.

There is a very low probability of occurrence as no methane has
ever been found in this mine.

4.

Eight (8) employees were on the working section where this
violation occurred.

5.

The probable occurrence is smoke inhalation or fire.

Citation No. 55669
1.

The slippage switch cover was missing and the energized power
leads were exposed on the No. 2 main belt conveyor head in
violation of 30 C.F.R. § 75.520.

2.

The operator's negligence was low as the No. 2 belt was
temporarily out of service during repairs. No power was turned
on although the belt could have been energized. This could
have been detected in the required electrical examination.

3.

There is a low probability of electrocution occurring as the
No. 2 belt was temporarily out of service for repairs.

4.

The possible accident which could occur is electrocution.

5.

One (1) employee would be affected.

1479

Citation No. 55670
1.

No guard was provided for the coupling connecting the speed
reducer to the motor on the No. 2 belt head in order to prevent
a person or persons from coming in contact with moving parts
in violation of 30 C.F.R. § 75.1722-A.

2.

The operator was moderately negligent as this condition should
have been detected during the onshift exam.

3.

There is a low probability of occurrence as not many people
travel in this area.

4.

The possible injury which could occur is the loss of limb.

5.

One (1) employee would be affected.

Citation No. 55671
1.

The water type deluge fire suppression system provided for the
No. 2 underground belt conveyor head was not being maintained
in an operative condition in that four of the water sprays were
broken off and the lever that activates the system was blocked
out so the system could not operate in violation of 30 C.F.R.
§ 75.1101-l(a).

2.

There is a moderate probability of occurrence as the moving
parts on the belt could cause an ignition. However, no methane
has ever been found in this mine and the area was rockdusted.

3.

The operator was moderately negligent as this condition should
have been seen during the onshift examination.

4.

The probable occurrence from this condition is fire or smoke
inhalation.

5.

Ten (10) miners were on the working section where this violation occurre4.

Citation No. 55673
1.

A feeder cable was not being hung on insulators for a distance
of 75 feet on the No. 1 right section chain conveyor head to
prevent contact with combu.stible materials. This violates
30 C.F.R. § 75.516.

2.

The operator was moderately negligent as the condition should
have been noted during the weekly electrical examination.

3.

There is a low probability of occurrence as the feeder cable
itself was well insulated with no exposed parts.

1480

4.

The possible accident which could occur is a fire.

5.

Ten (10) employees were on the working section affected by
this citation.

Citation No. 55674
1.

The frame ground for the 250 volt direct current chain conveyor
head was not securely clamped to the main return wire at the
nipping station as proper connections were not used to insure
mechanical and electrical efficiency in violation of 30 C.F.R.
§ 75.514.

2.

The operator was moderately negligent as this should have been
seen during the weekly electrical examination.

3.

There was a moderate probability of occurrence as it was
necessary for people to handle this wire from-time to time.

4.

The possible injury which could occur is shock or electrocution.

5.

One (1) employee would be affected.

Citation No. 55675
1.

A guard was not provided for the No. 2 main belt tail piece to
prevent contact with moving parts in violation of 30 C.F.R.
§ 75.1722B.

2.

There is a low negligence as the guard was only temporarily
removed for cleaning and was, in fact, provided by the operator.

3.

There is a low probability of occurrence as the No. 2 belt was
temporarily out of service.

4.

The possible injury is a loss of limb.

5.

One employee would be affected.

Citation No. 55676
1.

The No. 2 underground belt conveyor entry was not separated
from the intake entry with permanent sealed stoppings ~t three
points. This violates 30 C.F.R. § 75.326.

2.

The operator was moderatley negligent as this should have been
detected during the onshift examination.

3.

There is a moderate probability of occurrence. If a fire would
occur on the belt conveyor, the smoke could go directly to the
intake air entry for the one right section.

1481

4.

There were ten (10) employees on the working section affected
by this citation.

5.

The possible injury is smoke inhalation.

Citation No. 55677
1.

The methane monitor being used on the joy loader was not maintained in a permissible manner. When the energized test switch
was tried, the test switch would not deenergize the machine in
violation of 30 C.F.R. § 75.313-1.

2.

The operator was moderately negligent as this should have been
detected at the beginning of the shift before the loader was
used.

3.

There is a low probability of occurrence as no methane has ever
been found in this mine.

4.

The probable accident which could occur is a fire.

5.

Ten (10) employees were on the working section affected by this
citation.

Citation No. 55678
1.

Only 7,875 cubic feet a minute of air was reaching the last
open crosscut between the No. 1 and No. 2 rooms in violation
of 30 C.F.R. § 75.301.

2.

There is low negligence as two mine foremen took readings at
the beginning of the shift and the ventilation was all right.
The reduction occurred between their reading and the time the
inspector took his reading.

3.

There is a moderate probability of occurrence as it is
necessary to maintain sufficient air in order to guarantee
that the miners are not subjected to too much coal dust.

4.

The possible occurrence from this violation is smoke or dust
inhalation.

5.

Ten (10) employeees were on the working section affected by
this citation.

Citation No. 55679
1.

Loose coal and coal dust had accumulated along the shuttle
car roadway and the ribs and floor of the No. 1 through 6 rooms

1482

and connecting crosscuts for a distance of 90 feet from the
working faces. The accumulations ranged in depth from 0 to
12 inches. This is a violation of 30 C.F.R. § 75.400.
2.

The operator was moderately negligent as he does have a
cleanup plan requiring him to control the accumulations.
However, the operator does clean these places on a regular
basis and it is difficult to control.

3.

There is a moderate possibility of occurrence as moving equipment goes through this area which could possibly cause a spark
leading to an ignition.

4.

The possible injury which could occur is smoke inhalation.

5.

Ten employees were on the working section affected by this
order.

Citation No. 55682
1.

The joy loader was not maintained in permissible condition in
that there was more than .005 inches in the plane flange joint
of the right and left tram motors and contractor box in violation of 30 C.F.R. § 75.503.

2.

The operator's negligence is low as this is a difficult violation to detect. However, it should have been seen during the
weekly electrical examination.

3.

It is improbable that any accident would occur as no methane
has ever been found in this mine and this regulation is
designed to prevent methane accumulations in the boxes protected by the joints.

4.

The possible injury is a fire.

5.

Ten employees were on the working section affect~d by this
violation.

Citation No. 55683
1.

The trailing cable provided for the loading machine contained
three permanent splices as the outer jacket was damaged so
that it would not exclude moisture in violation of 30 C.F.R.
§ 75.604-B.

2.

The operator was moderately negligent as this should have been
detected during the weekly examination.

3.

There was a low probability of occurrence as the inner insulation was intact.

1483

4.

The possibie- -injury which could occur is electrocution.

5.

One employee would be affected by this violation.

Citation No. 55684
1.

The outer jacket of the trailing cable on the loading machine
was damaged in six areas and exposed the inner power conductor
in violation of 30 C.F.R. § 75.517.

2.

The operator was moderately negligent as this condition should
have been detected during the weekly electrical examination.

3.

There is a low probability of occurrence as the inner insulation was fully intact.

4.

The possible injury which could occur is electrocution or
shock.

5.

One employee would be affected by this condition.

Citation No. 55685
1.

The 250 volt direct current feeder wires were not substantially
bushed with insulated bushings where they entered the metal
frames of the main breaker box. This violates 30 C.F.R.
§ 75.515.

2.

The operator was moderately negligent as this condition should
have been detected during the weekly electrical examination.

3.

There is a low probability of occurrence as the feeder wire
itself was in good condition and not likely to cause a shock.

4.

The possible injury which could occur is electrocution or
shock.

5.

One employee would be affected by this violation.

Citation No. 55686
1.

The trailing cable provided for the cutting machine contained
three permanent splices that were damaged and would not exclude
moisture. This violates 30 C.F.R. 75.604B.

2.

The operator was moderately negligent as this condition should
have been detected during the weekly electrical examination or
an onshift examination.

3.

There is a moderate probability of occurrence as the fact that
the cable was damaged raises the probability. The splices were
however in good condition.

1484

4.

The possible injury which could occur is shock or smoke
inhalation from a fire.

5.

One employee would be affected by this violation.

Citation No. 55687
1.

The mining machine was not maintained in permissible condition
as the froqt headlight was missing and the power leader for the
headlight was exposed in violation of 30 C.F.R. § 75.503.

2.

There is low negligence although this could have been detected
in the weekly examination.

3.

There is low probability of occurrence as no methane has been
detected in this mine.

4.

The possible occurrence from this violation is an explosion.

5.

Ten employees were on the working section affected by this
citation.

Citation No. 55688
1.

The outer jacket of the trailing cable on the cutting machine
was damaged and the inner power conductors were exposed in
violation of 30 C.F.R. § 75.517.

2.

The operator was moderately negligent as this condition should
have been noted during the weekly electrical or the onshift
examination.

3.

There is a moderate probability of occurrence as the inner
conductors were insulated.

4.

The possible injury which could occur is electrical shock.

5.

One employee would be affected by this condition.

Order No. 55689
1.

A shuttle car was not maintained in a safe operating condition
as the brakes were inoperative because of leakage from the
brake liner. The shuttle car was being operated without brakes
on a graded area. This violates 30 C.F.R. § 75.1725-A.

2.

This condition constitutes an imminent danger. The condition
or practice observed could reasonably be expected to cause
death or serious physical harm to a miner if normal mining
operations were permitted to proceed in the affected area of
the mine before the dangerous condition was eliminated.

1485

3.

The probability of occurrence is imminent as the shuttle car
was being operated when the citation was issued.

4.

The operator's negligence was high as the condition was known
to the operator and had been reported.

5.

A collision could happen from this condition existing.

6.

One employee would be affected by the existence of this
condition.

Citation No. 55690
1.

The shuttle car was not maintained in permissible condition as
the cable roller was damaged and bare metal was visible and
exposed to the cable. The headlight was not securely bolted to
the frame. This violates 30 C.F.R. § 75.503.

2.

The operator's negligence was low. However, this could have
been detected during weekly examination. It was however
difficult to detect.

3.

There is a low probability~of occurrence as no methane has ever
been found in this mine.

4.

The possible occurrence from this condition is an explosion or
fire.

5.

Ten employees were on the section affected by this violation.

Docket No. WEVA 79-303 - Citation No. 55691
1.

The frame ground of the trailing cable was not connected to the
frame of the roof bolter in violation of 30 C.F.R. § 75.503.

2.

The operator was moderately negligent as work was--being done in
the area and the electrical examination should have revealed
this condition.

3.

There is a low probability of occurrence as the frame was not
energized and diode grounding was provided.

4.

The possible accident which could occur is electrocution or
shock.

5.

One person would be affected by this violation.

1486

Citation No. 55692
1.

The shuttle car being used inby the last open crosscut was not
in permissible condition in violation of 30 C.F.R. § 75.503.
The plane. flange joint of the panel box had an opening greater
than .005 inches.

2.

The operator's negligence was low as this was difficult to see.

3.

The probability of occurrence is low as no methane has ever
been found in this mine and the standard is designed to protect
against methane explosions.

4.

The possible accident which could occur is a methane explosion.

5.

Ten employees were on the working section affected by this
violation.

Order No. 55693
1.

The number 1 through 5 entries and the number 6 room had been
advanced to between 100 feet and 200 feet from an adjacent
abandoned mine that could not be inspected. The abandoned mine
could contain dangerous accumulations of water or gases and no
test bore holes were drilled at least 20 feet in advance of the
faces of each entry of the No. 5 room and also no test bore
holes were drilled at the back ribs more than 8 feet apart in
these entries. This is a violation of 30 C.F.R. § 75.1701 and
an imminent danger.

2.

An imminent danger existed as the condition or practice
observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the affected area of the coal mine before
the dangerous condition was eliminated.

3.

The probability of a methane accumulation in an abandoned mine
is great. This is why the probability of occurrence is
imminent.

4.

The operator was moderately negligent. There is some question
as to the exact distances which had been driven in each of the
entries in the No. 6 room. In some instances, the area was
close to 200 feet from the adjacent abandoned mine. The cited
standard does not require bore holes be.drilled when mining is
more than 200 feet from the adjacent area.

5.

The possible injury which could occur is drowning or gas
inhalation.

1487

6.

Ten employees were in the working section affected by this
order.

Docket No. WEVA 79-390 - Order No. 55668
1.

Loose coal, coal dust and float coal dust were found to have
accumulated in the No. 1 underground belt conveyor entry for
a distance of 1,000 feet. The accumulation ranged in depth
from 0 to 3 inches and the float dust was black in color. The
accumulation was intermittent along this 1,000 foot area.
This violates 30 C.F.R. § 75.400.

2.

The operator was moderately negligent as accumulations are
difficult to control at the conveyor belt.

3.

This violation constitutes an unwarrantable failure as the
operator knew or should have known of the condition because
it was visible and should have been detected during daily
onshift examinations.

4.

The possible injury to be expected from this condition is an
explosion, smoke inhalation or burns.

5.

An injury of the type stated above is possible.
methane has ever been found in this mine.

6.

Ten employees work on the working section affected by this
order.

However, no

Order No. 55672
1.

The operator violated 30 C.F.R. § 75.518 in that no overload
or short circuit protection was provided on the power cable
from the feeder wire to the chain. This conditi~n existed
at the conveyor motor. Also, there was no fus~ at the nip
or circuit breaker.

2.

The above cited condition constitutes an unwarrantable failure
as the. operator knew or should have known of this condition
because· it was visible and should have been detected during
the weekly electrical examination.

3.

The possible injury that could occur from this condition is
electrocution or a fire.

4.

An occurrence is possible as the power cable was energized.

5.

Ten employees were at. work on the working section affected
by this order.

Order No. 55081 --- ·
1.

The operator violated 30 C.F.R. § 75.603 by allowing a trailing
cable to exist with three temporary splices.

2.

This condition constitutes an unwarrantable failure as the
operator knew or should have known that it existed as it was
visible and should have been detected during the weekly
electrical examination.

3.

The possible injury from this condition is electrocution.

4.

An accident of the type described above is probable because men
were working in the area and could have come in contact with
the splices.

5.

Ten employees were on the working section affected by this
order.

Docket No. WEVA 79-391 - Citation No. 55563
1.

The operator violated 30 C.F.R. § 75.1103-l(a)(b) by failing to
provide an automatic warning or fire sensors on two belts.

2.

Ten employees were on the working section affected by this
order.

3.

There is a low probability of any accident happening from this
condition. A fire could spread without warning.

4.

The operator was moderately negligent because he was not
informed by the miners on this section of the failure of the
automatic warning device.

Citation No. 55564
1.

The operator violated 30 C.F.R. § 75.514 as no suitable
connectors were supplied on the cable for the conveyor motor
where it was spliced onto the main power feeder wire.

2.

Two employees were affected by this condition.

3.

The possible injury occurring from this condition is shock.

4.

There is a low probability of occurrence because the main power
feeder wire was well insulated thus lowering the possibility of
shock.

5.

The operator was moderately negligent as a certified electrician
had done this work and the operator, reasonably, relied on him
to do it correctly.

1489

Citation No. 55565
1.

The operator violated 30 C.F.R. § 75.518 as no overload or short
circuit protection was provided on the conveyor cable. The
cable was twisted on the power feeder wires and no circuit
breakers were provided.

2.

The operator was moderately negligent as a certified electrician
was assigned to do the job and the operator, reasonably, relied
on him to do it correctly.

3.

Ten employees were working on the section affected by this
condition.

4.

The possible injury resulting from this condition is fire or
shock.

5.

There is a low probability of occurrence as the area was dry.

Citation No. 55567
1.

The operator violated 30 C.F.R. § 75.701 by failing to provide
framed ground protection for the conveyor belt drive unit.

2.

This condition constitutes low negligence.

3.

One employee would be affected by this condition.

4.

The possible injury which could occur is shock.

5.

There is a low probability of occurrence as the section was
dry and not a good conductor.

Citation No. 55570
1.

The operator violated 30 C.F.R. § 75.518 as no short circuit
or overload protection was provided on the cable-for the pump.

2.

There is no probability of occurrence as the pump was not
energized.

3.

The operator was only moderately negligent as he had deenergized
the pump.

4.

No hazard was created by the failure to provide short circuit
protection.

5.

No employees would be affected by this condition.

1490

Citation No. 55571
1.

The operator violated 30 C.F.R. § 75.903 by failing to provide
a disconnect device at the distribution center. A person could
not visibly see if the power was disconnected and could thus
cause electrical shock to another individual.

2.

This situation constitutes low negligence as the operator
believed it had provided adequate disconnect devices at the
distribution center.

3.

The probability of occurrence is low as very few people have
access to the distribution center and these people are the
same people who are aware of whether or not the power is
disconnected.

4.

The possible occurrence from this condition is electrical
shock.

5.

One employee would be affected.by this condition.

Citation No. 55572
1.

The operator violated 30 C.F.R. § 75.503. The coal cutting
machine was not in permissible condition. The headlight
conduit was cut and split in three places, the cable guide
wire going into the metal frame and methane detector conduit
was cut in two places.

2.

The operator was moderately negligent because it cannot be
determined how long the impermissible conditions had existed.
It is difficult to detect the headlight conduit's condition.

3.

There is a moderate probability of occurrence.
methane has ever been found at this mine.

4.

Ten employees were working on the section affected-by this
citation.

5.

The possible injury which could occur is electrical shock.

However, no

Citation No. 55573
1.

The operator violated 30 C.F.R. § 75.603 as the trailing
cable to the roof bolter contained inadequate splices.

2.

This condition constitutes low negligence by the operator
as the splices could have come loose during operation of the
bolter.

1491

3.

The~e i-s-veryLow probability of occurrence as the section was
dry and there were no conductors.

4.

The possible injury which could occur is shock.

5.

One employee would be affected by this condition.

Citation No. 55574
1.

The operator violated 30 C.F.R. § 75.603. The shuttle was not
in permissible condition as two lock washers were missing, the
conduit was split for ten inches on the pump motor and the front
headlight was not secured to the frame.

2.

The operator was moderately negligent as these conditions were
difficult to detect and would have occurred since the last
weekly electrical examination.

3.

The possible injury occurring from this condition is electrical
shock.

4.

There is a low probability of occurrence as it is unlikely that
anyone would be touching these areas. Also, the area was dry.

5.

One employee would be affected by these conditions.

Citation No. 55576
1.

The operator violated 30 C.F.R. § 75.516 by failing to provide
adequate installation for support of the power wire for a
distance of 100 feet.

2.

The operator was not negligent in this instance as the feeder
line was temporary and placed on well insulated J hooks.

3.

There is a low probability of occurrence as the temporary
insulation was in good condition.

4.

Fire or shock could occur.

5.

Ten employees were on the section affected by this order.

Citation No. 55577
1.

The operator violated 30 C.F.R. § 75.515. No proper fitting
was supplied on the main power cable for the 250 volt direct
current motor to the conveyor drive unit.

2.

The operator was not negligent. The equipment supplied by the
operator was in factory condition.

1492

3.

There 18 a-iOw-probability of occurrence as the main power
cable was well insulated.

4.

The possible injury which could occur is electrical shock.

5.

One employee would be affected by this condition.

Citation No. 55578
1.

The operator violated 30 C.F.R. § 75.515 by failing to supply a
proper fitting where the cable entered the metal frame of the
stop/start switch.

2.

An injury is improbable as the cable passes through plastic
casing and does not touch the metal. Also, this is an AC
current cable thus not as dangerous as a DC current and
lowering the probability.

3.

This condition constitutes low negligence as the ~perator
believed that the fact that the cable passed through plastic
casing eliminated a need for.a fitting.

4.

The possible injury which could occur is fire.

5.

One employee would be aff_ected by this condition.

Citation No. 55579
1.

The operator violated 30 C.F.R. § 75.701-3-b by failing to
frame ground the power motor.

2.

The operator was moderately negligent.

3.

There was a moderate probability of occurrence as the section
was dry and all of the cables on the power motor were insulated
and unexposed.

4.

The possible injury which could occur is electrical shock.

5.

One employee would be affected by occurrence.

Citation No. 55580
1.

The operator violated 30 C.F.R. § 75.1101 as no water was
present when the deluge water sprays were activated.

2.

The operator was not negligent in this case. The condition
existed because of frozen pipes which were being replaced at
the time. This condition was not within control of the
operator.

1493

3.

The possibie occurrence from this condition is fire.

4.

There is a moderate probability of occurrence as the condition
was being corrected at the time the citation was issued. The
condition existed for a very short time.

5.

Ten employees were on the working section affected by this
citation.

Docket No. WEVA 79-392 - Order No. 53391
1.

The operator violated 30 C.F.R. § 75.316. The ventilation
methane and dust control plan was not complied with. The third
crosscut outby the face did not have a permanent stopping and
three other stoppings were damaged. All conditions were
between the intake and return. There was missing and damaged
brattice.

2.

There is a low probability of occurrence.
been found in this mine.

3.

The operator knew or should have known of this condition and
thus it constitutes an unwarrantable failure.

4.

The operator was moderately negligent as the material was there
which was to be used to erect the permanent stopping in the
crosscut. The operator had just begun work on this stopping.

5.

Eight employees were on the section affected by this order.

6.

The possible injury from this condition is dust or smoke
inhalation.

No methane has ever

Order No. 53392
1.

The operator violated 30 C.F.R. § 75.301 as no air movement
could be detected in the last open crosscut between the intake
and return. Thus, there was inadequate ventilation to the
faces.

2.

This condition constitutes an unwarrantable failure to comply
as the operator knew or should have known that this condition
existed. The foreman was present in the area which is subject
to preshift and onshift examinations.

3.

The operator's negligence was high for the same reasons as
stated above in stipulation No. 2.

4.

The probability of occurrence is high as men were producing
coal at the time and had inadequate ventilation to their
working place.

1494

S.

Eight men were in the working section affected by this order.

6.

The possible occurrence from this condition is dust or smoke
inhalation.

7.

The probabability of occurrence is only moderate. The standard
is designed to prevent methane accumulations. However, no
methane has been recorded at this mine.

Docket No. WEVA 79-458 - Order No. 55566
1.

Accumulations of loose coal and coal dust existed for one to
four inches under and along the No. 1 right belt conveyor and
crosscuts right and left for the entire length. Water and rock
dust were not provided for fire fighting. The deluge water
spray system was inoperative on the No. 1 belt conveyor as no
water was available and fourteen sprays were missing or broken.

2.

Ten employees were on the working section affected by this
order.

3.

This condition indicates a high degree of negligence by the
operator because the conditions were obvious and, should have
been detected during the onshift examinations.

4.

There is a moderate probability of occurrence. Although the
accumulation existed over a large area of the mine, it was along
the belt conveyor and thus very difficult to control.

S.

The possible injury which could occur from this condition is an
ignition.

Order No. 55568
1.

Coal dust, float coal dust and loose coal dust were accumulated
in the active workings on the last open crosscut in the No. 1
through S entries for 0 to 10 inches.

2.

Ten employees were on the working section affected by this
order.

3.

This condition indicates a high degree of negligence. However,
it should be considered that the operator was just beginning
mining in a new area and simply had not yet begun to clean the
accumulations.

4.

The possible injury which could occur is an ignition or smoke
inhalation.

S.

There is a moderate probability of occurrence as the mine in
this area was damp.

1495

Order No. 55569
1.

Loose coal and coal dust had accumulated for 0 to 6 inches along
/'the No. 1 belt conveyor and its crosscuts right and left for the
entire length. This violates 30 C.F.R. § 75.400.

2.

This condition indicates moderate negligence by the operator.

3.

There is a moderate probability of occurrence as the condition
was wet thus lowering the possibility of an ignition.

4.

Ten employees were on the working section affected by this
order.

5.

The possible injury which could occur is an ignition.

Docket No. WEVA 79-459 - Citation No. 55562 and Order No. 55575
1.

The No. 3 intake escapeway was not maintained in a safe condition as water had accumulated 6 to 14 inches in depth 200 feet
inby the entry for a distance of 80 feet and five crosscuts inby
the right belt conveyor drive unit for 75 feet. This violates
30 C.F.R. § 75.1704.

2.

The operator was issued a 104b order for this condition and did
not correct it within the time set for abatement or a reasonable
time thereafter.

3.

This condition indicates a high degree of negligence as it
should have been corrected within a reasonable time.

4.

There is a low probability of occurrence. The escapeway has
high clearance and the amount of water in the escapeway would
not seriously impede· egress. Also, two other escapeways were
safe and travelable.

5.

Ten employees were working on the section affected by this
order.

6.

The hazard existing from this condition is a slip and fall
possibility.

Docket No. WEVA 80-37 - Citation No. 9908524
1.

The operator violated 30 C.F.R. § 70.220(a)(3) as required
respirable dust samples were not collected every production
shift for the position of shot firer.

1496

-- -· -- --

2.

The operator was not negligent. The mine was temporarily
abandoned and the operator simply failed to file a status
change. Thus, the citation was issued but the shot fire was
not working.

3.

There is no probability of occurrence as the shot fire was not
employed.

4.

The possible hazard which could occur were respirable dust
samples not submitted is inhalation. However, in this case, no
hazard existed.

5.

No employee was affected by this condition.

Citation No. 59941
1.

The operator violated 30 C.F.R. § 75.1102. The slippage
switches for the No. 1 belt conveyor were inoperative and would
not control the belt.

2.

Ten employees were on the working section affected by the
citation.

3.

This condition indicates moderate negligence. The citation was
issued in January and the slippage switches had frozen from the
weather conditions. This was not within control of the operator.

4.

The possible hazard caused by this condition is an ignition.

5.

There is a low probability of occurrence. The area was damp
and cold thus lowering the possibility of an ignition.

Docket No. HOPE 79-3-P - Notice No. 7-0095, Notice No. 7-0096, Notice
No. 7-0097, Notice No. 7-0098, Notice No. 7-0099
1.

Cables or canopies were not provided for the following
equipment:
a.
b.
c.
d.
e.

roof bolting machine
coal cutting machine
loading machine
standard drive shuttle car
off-standard drive shuttle car

Each of these constitutes a .violation of 30 C.F.R.
§ 75.1710-l(a)(4).
2.

In each of these situations the operator was moderately negligent. The coal bed had an average height of 45 inches and the
operator should have known that cabs or canopies were required
in this area.

1497

3.

There is no probability of occurrence at the time the citation
was issued. At that time, this area of the mine had been
abandoned but the abandonment had not been reported. Also, the
area had strong roof.

4.

The possible occurrence from these conditions is crushing.

5.

One employee would be affected by failure to provide a cab or
canopy at each location.

Citation No. 43361
1.

The 250 volt direct current dewatering pump was not provided
with the stop and start switch of safe design. A fuse nip was
used for this purpose. This is a violation of 30 C.F.R.
§ 75.520.

2.

The operator was moderately negligent as this should have been
detected during the weekly examination.

3.

There is a low probability of occurrence as the pump was not
operational and there was no power going to it.

4.

The possible occurrence from this condition is shock or fire.

5.

One employee would be affected.

Citation No. 43362
1.

The 250 volt direct current feeder wire was lying on the mine
floor and was not installed on insulators at two locations.
This is a violation of 30 C.F.R. § 75.516.

2.

There is a moderate probability of occurrence as this was a wet
area but the cable was not otherwise damaged.

3.

The operator was moderately negligent as this should have been
detected during the weekly examination.

4.

The possible occurrence from this condition is a fire or
ignition.

5.

One employee would be affected.

Citation No. 43363
1.

The program approved by the Secretary for the searching 9f
miners for smoking materials was not being adequately maintained. A cigarette butt was observed on the mine floor about
100 feet inby the No. 2 portal in the No. 1 conveyor belt
entry. This is a violation of 30 C.F.R. § 75.1702.

1498

2.

This constitutes low negligence. Only one cigarette butt was
found. It is quite difficult for the operator to check every
person at all times for cigarettes. Also, there is a possibility that this cigarette butt could have .been carried into the
mine on the belt conveyor from the outside.

3.

There is a low probability of occurrence. Even though there is
float coal dust, it is unknown whether this miner was smoking
inside or outside of the mine.

4.

The possible occurrence from this condition is a mine fire.

5.

One or more employees up to nine could be affected by this
condition.

Citation No. 43365
1.

The roof was inadequately supported at one location where it
was cracked and drummy and broke away from the-permanent
supports. This is a violation of 30 C.F.R. § 75.200, the
approved roof control plan •.

2.

This constitutes low negligence as this condition was out of
the operator's control and had been adequately supported in the
beginning.

3.

There is a moderate probability of occurrence as one man does
work in this area.

4.

The possible occurrence from this condition is a roof fall.

5.

One employee was in the area of this condition.

Citation No. 43366
1.

The automatic fire sensor and warning device systems for the
No. 1 and 2 main belt conveyors were not installed. properly.
There was only one continuous sensor line for both belt conveyors and would not provide identification of a fire within
each belt flight. ';rhis is a violation of 30 c.F.R.
§ 75.1103-4A.

2.

The operator's negligence was low. The line provided monitors
nine different areas and the operator is able to detect which
area is affected.

3.

There is a moderate probability of occurrence as there was no
ignition source in the areas subject to this citation.

4.

The possible occurrence from this condition is spreading of a
fire.

1499

5.

One employee works in the area of the belt affected by this
citation.

Citation No. 45741
1.

The approved roof control plan was not being followed in that
the torque wrench provided for the roof bolting machine in use
was not maintained in a workable condition. Part of the wrench
socket was missing. This is a violation of 30 C.F.R. § 75.200.

2.

The operator was moderately negligent. Although the operator
is charged with knowledge of its roof control plan, the equipment operator had not reported this condition to management.

3.

There is low probability of occurrence as the machine was not
in use due to a production strike.

4.

The possible occurrence from this condition is a roof fall.

5.

Six employees work on the section affected bf this citation but
none were working at the time it was issued.

Citation No. 45742
1.

Coal and coal dust had accumulation up to six inches deep along
the ribs at various locations from the fifth crosscut outby the
face of the No. 1 entry extending inby for a distance of about
350 feet and from the shuttle car dump inby the Nos. 2 through
7 entries at a distance of about 250 feet in violation of
30 C.F.R. § 75.400.

2.

This condition constitutes high negligence as the operator
failed to adequately enforce its cleanup plan.

3.

There is a low probability of occurrence as no methane has ever
been found in this mine and there was no ignition source.

4.

The possible occurrence is an ignition or an explosion.

5.

Six employees work in the area affected by this condition.

Citation No. 45744
1.

Firefighting equipment provided for the belt conveyor was not
adequate as the water supply was not provided. This is a
violation of 30 c.F.R. § 75.1100-2B.

2.

The operator's negligence was low. Due to a work stoppage,
this belt was not in use and the water was turned off. However,
the water supply was available.

1500

3.

There is low probability of occurrence as there is no ignition
source and no methane.

4.

The possibl.e occurrence from this condition is fire.

5.

One employee works in the area of the belt conveyor.

Citation No. 45745 and 104(b) Order No. 46295
1.

The head roller and drive chain of the conveyor drive were not
adequately guarded. The guards that were provided had
partially torn in an area where miners regularly walked. This
is a violation of 30 C.F.R. § 75.1722-A.

2.

The operator was moderately negligent. The guards had been
provided and torn away without the operator's knowledge.

3.

There is a moderate probability of occurrence .from this condition. However, at the time the citation was issued the belt was
not in operation due to a work stoppage. Also, at that time no
one was in the area.

4.

The possible occurrence from this condition is loss of limbs.

5.

One employee would be affected.

6.

The operator did not exercise good faith in abating this condition within the time set for abatement or a reasonable time
thereafter. Therefore, a 104(b) order was appropriate.

Citation No. 45746 and 104(b) Order No. 46294
1.

The deluge type water spray system provided for the belt conveyor was not maintained in a usable and operative condition.
The sensor line was not hooked up and a water supply was not
provided. Sprays were broken and missing and lthe.direction of
the sprays was not adequate to spray the top and bottom of the
top belt and the top surface of the bottom belt. This is a
violation of 30 C.F.R. § 75.1100-3.

2.

The operator was moderately negligent.

3.

There is a low probability of occurrence as there were no
ignition sources or methane in the area.

4.

The possible occurrence from this condition is fire or ignition.

5.

One employee works in the area of the belt.

1501

Citation No. 45747
1.

Proper fittings were not adequate at two locations where power
cables entered the metal frame of the No. 2 belt conveyor drive
unit control box. The fittings that were provided were too
large and permitted movement of the power cables. This is a
violation of 30 C.F.R. § 75.515.

2.

The operator was moderately negligent. Fittings had been provided and had loosened without control of the operator.

3.

There is a low probability of occurrence as the cable was intact
when the citation was issued.

4.

The possible occurrence from this condition is a fire or ignition.

5.

One employee works in the area of the conveyor belt.

Citation No. 45748
1.

Loose coal and coal dust and float coal dust had been deposited
on rock dusted surfaces and had accumulated along the belt conveyor at various locations for 500 feet. The loose coal and coal
dust ranged up to four inches. This is a violation of 30 C.F.R.
§

75.400.

2.

The operator was moderately negligent as accumulations are very
difficult to control at the belt. When the citation was issued,
the operator was working on the condition and not producing coal.

3.

There is a moderate probability of occurrence. Although a belt
has electrical parts, there was no methane in the area thus
lowering the probability.

4.

The possible occurrence from this condition is fire.

5.

Two employees were in the area.

Citation No. 45749
1.

The firefighting equipment provided for the belt conveyor was
not adequate in that a water supply was not provided for the
water lines. This is a violation of 30 C.F.R. § 75.1100-2.

2.

The operator was moderately negligent as water had been supplied
but turned off due to a work stoppage.

3.

There is a low probability of occurrence as there was no ignition
source, the belt was not working and no methane has been found
in this mine.

1502

4.

The possible occurrence from this condition is fire or ignition.

5.

One employee works in the area of the belt.

Order No. 45750
1.

This order was appropriately issued under Section 107(a) of the
Act as an imminent danger existed. The condition or practice
observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the affected area of the coal mine before
the dangerous condition was eliminated.

2.

The operator violated 30 C.F.R. § 75.516. An energized dead
end branch line power conductor about 45 feet in length was
installed on the wet mine floor.

3.

This constitutes high negligence as the operator must hang
energized cables and must keep them away from wet areas.

4.

The operator violated 30 C.F .R." § 75.517. The out by end of the
power conductor contained an exposed bare energized lead about
four inches in length and two exposed ground conductors.

5.

This constitutes high negligence. The operator must keep its
energized wires above the mine floor, in good condition and out
of .water.

6.

The probability of occurrence is imminent.

7.

The possible occurrence from this condition is electrocution or
fire.

8.

One employee would be affected by electrocution. Twenty-five
employees were working in the mine and could be affected if a
fire occurred.

Docket No. HOPE 79-95-P
Citation No. 43367
1.

The power conductor conducting 10 volt alternating current
electrical power to the light installed in the shaker building
entered through the metal frame of the light switch box and
was not provided with a proper fitting. This is a violation
of 30 c.F.R. § 77.505.

2.

This constitutes moderate negligence as the operator should
have detected this condition and corrected it.

1503

3.

There is a moderate probability of occurrence as the switch is
used regularly.

4.

The possible occurrence from this condition is an electrical
shock or electrocution.

5.

One employee could be affected by this condition.

Citation No. 43368
1.

Quantities of loose coal and coal dust ranging from 1 to
6 inches in depth was accumulated on the floor, on the beams
and on and around the electrical equipment on both levels of the
shaker building. This is a violation of 30 C.F.R. § 77.1104.

2.

This constitutes moderate negligence as it is very difficult
to control coal accumulations in the shaker building. The coal
falls off of the belts and, even a regularly maintained cle~n-up
plan cannot keep the building clear of loose coal at all times.

3.

There is a low probability of occurrence. The shaker building
is located outside on the surface therefore there is no methane
and the probability of occurrence is greatly reduced.

4.

The possible occurrence from this condition is fire or explosion.

5.

One employee would be affected.

Citation No. 43530
1.

An up-to-date record was not being kept of the required monthly
calibration checks of the methane monitors installed on the
mining machine. This is a violation of 30 C.F.R. § 75.313-1.

2.

This constitutes low negligence as there was a work stoppage
and the operator had not made its monthly checks since the mine
was not producing coal.

3.

There is no probability of occurrence since no men were in the
mine and no mining was being conducted.

4.

No hazard was involved.

5.

No employees were affected.

Citation No. 43531
1.

A mine cleanup plan was not provided in violation of 30 C.F.R.
§ 75.400.

1504

2.

This constitutes moderate negligence. Due to the strike, the
operator had not submitted a plan. However, he was still
required to do so under the Act.

3.

It is improbable that anything would occur because of the
failure to supply this plan as no production was occurring
and no men were in the mine.

4.

No hazard was created by this violation.

5.

No employees were affected.

Citation No. 43532
1.

2.

The operator did not maintain a list of all certified and
qualified persons designated to perform duties under Part 75.
This is a violation of 30 C.F.R. § 75.159.
\
The operator was moderately negligent as he should have provided
such a list in compliance with.the Act.

3.

It is improbable that any accident would occur due to this
purely technical violation.

4.

No hazard was created by failing to supply the list.

5.

No employees were affected.

Citation No. 43533
1.

There were two partially dislodged timbers at a point approximately 100 feet inby the main intake drift entry on the left
side travelling inby. These timbers were supporting a wooden
header that was supporting some loose rock over the roadway.
This is a violation of 30 C.F.R. § 75.202.

2.

The operator was moderately negligent and should have noted
this condition during its preshift examination. However, the
operator had initially supported this area adequately.

3.

There is a moderate probability of occurrence. This area is
travelled by persons entering the mine every day and is used
as a mantrip travelway.

4.

The possible occurrence from this condition is a roof fall
leading to a fatality or disability.

5.

One to seven people could be affected by this condition.

1

1505

Citation No. 43534
1.

There were numerous dislodged timbers along the main intake
airway roadway which is used as a mantrip travelway beginning
100 feet inby the drift opening and extending inby on both
sides for approximately 700 feet. These timbers were installed
as additional roof support due to excessive width. This is a
violation of 30 c.F.R. § 75.202.

2.

The operator was moderately negligent as this condition should
have been observed during the preshift examination. However,
the area was initially adequately timbered.

3.

There is a moderate probability of occurrence as the area had
been driven excessively wide.

4.

This condition could lead to a roof fall causing a disability
or fatality.

5.

One to seven employees would be affected by this condition.

Citation No. 43535

1.

The 250 volt direct current feeder wire was not adequately
installed on insulators. Some of the insulators were the wrong
size and the feeder wire was laying on top of the insulator at
several locations. In other locations it was installed on "J"
hooks and was in contact with a coal rib for three feet at the
mouth of one heading. This is a violation of 30 C.F •• R
§ 75.516.

2.

The operator was moderately negligent and should have detected
this condition during his preshift examination.

3.

There is a moderate probability of occurrence. ·The condition
could allow the feeder wire to dislodge thus coming in contact
with the grounding conductor.

4.

This condition could cause a variety of hazards including a
minor shock or a mine fire.

5.

Depending on what occurred, one to seven people would be
affected.

Citation No. 43536

1.

The 250 volt direct current feeder wire insulation contained
one location where the insulation was damaged and the wiring
exposed in violation of 30 C.F.R. § 75.517.

1506

2.

The operator was moderately negligent as this should have been
detected during the weekly examination and the operator should
have kept this in good condition.

3.

There is a low probability of occurrence as this was a ground
wire without electric current running through it.

4.

The possible occurrence from this condition is electrical shock.

5.

One employee would be affected by this occurrence.

Citation No. 43537 and Order No. 43542
1.

The operator violated 30 C.F.R. § 75.200 by failing to comply
with its approved roof control plan. Entries and connecting
crosscuts were driven to excessive widths in several locations.

2.

This condition constitutes ordinary negligence although it
should have been discovered during the preshift examinations.

3.

The probability of occurrence from this condition is moderate
as the roof was good and there was no history of rib rolls or
roof falls in this mine.

4.

From one to seven people would be affected by this occurrence.

5.

The possible occurrence from this condition is a fall of the
roof or of the ribs.

6.

The operator did not exercise good faith in abating this condition within the time set for abatement or a reasonable time
thereafter. This condition should have been remedied
immediately and was not.

7.

The action taken to terminate this condition was to pull out of
the area. The operator made this a return air ~ourse and no
one worked in the area anymore. It was no longer an active
area.

Citation No. 43538 and Order No. 43543
1.

The operator violated 30 c.F.R. § 75.400 as quantities of loose
coal and coal dust ranging from one to nine inches had
accumulated in various locations.

2.

This condition was the result of the operator's ordinary
negligence as men were not in this area and could not have
detected the condition.

1507

3.

The probability of occurrence is only moderate as there were
no ignition sources present and no history of methane in the
mine.

4.

From one to seven people were on the working section and could
have been affected by this condition.

5.

The possible occurrence from this is an explosion or propagation
of a fire.

6.

The operator did not exercise ordinary good faith in abating
this condition within the time set for abatement or reasonable
time thereafter. Therefore, 104(b) order No. 43543 was issued.

7.

The action to terminate this citation and this order was
abandonment of the section affected by them. Therefore, people
were no longer exposed to the hazard.

Citation No. 43540 and 104(b) Order No. 43544
1.

The operator violated 30 C.F.R. § 75.316 by failing to comply
with its approved ventilation and methane and dust control plan.
In certain rooms, air was blowing where it should have been
exhausting.

2.

This condition constitutes ordinary negligence as no foreman
was on the section and could have been aware of this condition.

3.

The probable occurrence from this condition is propagation of a
fire into the active working sections.

4.

The probability of occurrence is low in this instance as no men
were working in the area affected by this citation.

5.

The operator did not .exercise good faith in abating this condition within the time set for abatement or within a reasonable
time thereafter and therefore 104(b) order No. 43544 was issued.

6.

The action to terminate this citation was permanent abandonment
of the area affected by it.

Citation No. 45743
1.

Firefighting equipment provided for the two left off south main
section was not adequate. A water supply was not provided for
the water line nor were alternatives for water or chemical
firefighting equipment provided. This is a violation of
30 C.F.R. § 75.1100-2(a)(2).

1508

2.

This constitutes low negligence as there was a work stoppage and
the operator had not turned on the water. However, water was
available.

3.

There is a moderate probability of occurrence as, even though
the area was not producing coal, coal is potentially explosive.

4.

The possible occurrence from this condition is a fire or
explosion.

5.

Six employees normally work on the section affected by this
citation. However, no one was working at the time it was issued.

Citation No. 46297
1.

The operator failed to comply with 30 C.F.R. § 75.200 as torque
checks were not made on at least one out of every ten roof bolts.

2.

This condition constitutes ordinary negligenceas the foreman
was not on the section at the time.this condition took place.

3.

The probability of occurrence is low as men were not in this area
when the citation was issued.

4.

It is improbable that any accident would occur from this.
ever, this condition can lead to roof falls.

5.

No men were in the area, therefore no one was subject to possible
injuries from these conditions.

How-

Citation No. 46298
1.

The 250 volt direct current feeder wire was not adequately
insulated at one location where the feeder entered the underground area of the mine at the No. 2 drift. The outer
insulation was torn for a distance of 2 inches and the
energized conductor was exposed. This feeder wire-conducts
electrical power to the two left off south main's section
mining equipment. This is a violation of 30 C.F.R. § 75.517.

2.

This constitutes low negligence. The feeder wire is extremely
long and it is difficult to detect.

3.

There is a low probability of occurrence. However, an exposed
nail was driven in this area and appeared to have been used as
a power connector.

4.

Electrocution could occur from this condition.

5.

One employee would be affected.

1509

Citation No. 46299
1.

The power cable conducting 440 volt alternating current
electrical power to the No. 1 fan contained one splice which
was not insulated as an outer jacket was not provided. This
is a violation of 30 C.F.R. § 77.504.

2.

This constitutes moderate negligence. This occurred immediately
following a.strike at which time production was not being conducted. Loose rock on the high wall had fallen and torn down
the power wire to the ventilation fans. The inner cable was
insulated.

3.

There is a low probability of occurrence as the cable was
approximately ten feet above the ground and no one would come
in contact with it.

4.

The possible occurrence is electrical shock.

5.

No employees were in the area of the cable as a strike was
going on when this violation occurred.

Citation No. 46300
1.

The power cable conducting 250 volt direct current to the
dewatering pump was not supported on well insulated insulators
in that the cable was lying on the mine floor. The area was
wet. This is a violation of 30 C.F.R. § 75.516.

2.

The operator was moderately negligent. This occurred during
a strike and was not known by the operator.

3.

There is a moderate probability of occurrence. However. due to
to the production stoppa~e the pump was not operational or
energized. However. the area was wet.

4.

The possible occurrence from this condition is el~ctrocution.

5.

One employee would be affected.
GENERAL STIPULATION AS TO ALL CASES

In addition to the above stipulations it was agreed that with respect
to all citations and orders except the section 104(b) orders the operator
exercised nonnal good faith. in abating the conditions within the time set
for abatement or a reasonable time thereafter. Section 104(b) of the Act
provides for the issuance of withdrawal orders when the operator fails to
timely abate a violation described in a citation issued under section 104(a)
of the Act. The orders here involved are--No. 55575 in Docket No.
WEVA 79-459. Nos. 46294 and 46295 in Docket No. HOPE 79-3-P and Nos. 43542.
43543 and 43544 in Docket No. HOPE 79-95-P.

1510

FEDERAL MlN.E SAfETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

1 9 JUN 1980
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 79-32
A.O. No. 14-00236-03003V

Petitioner
v.

No. 25 Strip
CLEMENS COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Robert J. Lesnick, Attorney, U.S. Department of Labor,
Kansas City, Missouri, for the petitioner;
Jesse M. Lee, Pittsburgh, Kansas, for the respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against
the respondent through the filing of a proposal 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
two alleged violations of certain mandatory safety standards promulgated
pursuant to ,the Act.
Respondent filed a timely answer and requested a hearing. The matter
was scheduled for hearing in Wichita, Kansas, April 23, 1980, along with
several other dockets heard that week. When this docket was called, the
parties advised me that they proposed a settlement pursuant to 29 C.F.R.
§ 2700.30, and they were permitted to present their arguments in support of
the proposed settlement disposition on the record. A bench decision was
rendered, and the decision is herein reduced to writing and served on the
parties. The citations, initial assessments, and the proposed settlement
amounts are as follows:
Citation

Date

30 C.F.R.
Standard

390730
390731

10/10/78
10/10/78

77.205(a)
77 .400(a)

1511

Assessement

Settlement

$1,800
900
$2,700

$1,100
250
$1,350

Discussion
The conditions or practices cited by the inspector in this proceeding
are as follows:
Citation No. 390730, 10/10/78, 30 C.F.R. 77.205(a). "A safe means of
access was not maintained to the lower walkway to the bottom conveyor on
the north side of the tipple in that the floor of the travelway (expanded
metal) was loose and would not support any weight."
Citation No. 390731, 10/10/78, 30 C.F.R. 77.400(a). "The fan inlets to
the blades on the 36 in. fan in the bathhouse was not guarded to keep person
from contacting exposed moving parts."
In support of the settlement disposition of this matter, petitioner
made the following arguments and presented information concerning the six
statutory criteria set forth in section llO(i) of the Act.
Size of Business
Petitioner asserted that at the time of the citations were issued,
respondent's strip mining operations at the mine in question were small, and
that annual production was 87,257 tons of coal. Petitioner also indicated
that the mine is no longer in operation. Respondent confirmed this fact
and indicated that during the relevant times in question, 40 miners were
employed at the mine and one mine superintendent was in charge of the
operation.
Prior History of Violations
Petitioner asserted that the respondent has an exeptional good safety
record and prior history of violations and that it operated some 74,000 manhours of production with no lost-time accidents.
Effect cf Civil Penalties on Respondent's Ability to Remain in Business
Although the mine in question is no longer operational, respondent is
still in the coal-mining business, and the parties agreed that the civil
penalties assessed in this matter will not adversely affect its ability to
remain in business.
Good Faith Compliance
Petitioner asserted that respondent exhibited exceptional good faith in
achieving rapid compliance and corresting the conditions cited.
Negligence
With regard to Citation No. 390731, concerning the unguarded fan, petitioner argued that the condition resulted from ordinary negligence and that
the lack of a guard should have been known to the respondent.

1512

With regard to Citation No. 390730, petitioner asserted that the alleged
hazardous condition of the walkway was first brought to the attention of
mine management by the mine safety committee. Respondent's safety director
looked into the matter, and after inspecting the walkway, concluded that it
was safe and not hazardous. This difference of opinion as to the alleged
hazardous condition was subsequently resolved when MSHA inspector Lester
Coleman issued the citation after an inspection of the walkway. In these
circumstances, petitipner's counsel advanced the argument that the citation
resulted from gross negligence. I advised the parties that absent any
further testimony or evidence indicating deliberate or reckless disregard
for safety on the part of the respondent, I could not conclude that the fact
that the asserted hazardous condition was brought to the attention of mine
management by the mine safety committee per se constitutes gross negligence.
Since reasonable men may differ on the gravity of any violation, absent
further facts, I can only conclude that this citation resulted from ordinary
negligence.
Gravity
With regard to the gravity of the walkway citation, petitioner asserted
that the condition cited was serious. Although two employees were initially
thought to be exposed to the hazard presented, in fact, only one employee a
day would be using the walkway and would be exposed to a possible falling
hazard of some 10 feet from the walkway. I find the violation was serious.
With regard to the gravity of the fan citation, petitioner asserted
that the fan in question was located some 5 feet off the floor and was
recessed into the wall. Further, the fan was actually only in use once a
month when one or two employees had ocassion to use the bathhouse where the
fan was located in one corner of the building. Petitioner also indicated
that the factor of gravity was overevaluated by MSHA when the initial
proposed assessment was computed. I find the violation was nonserious.
In addition to the foregoing arguments in support of the proposed
settlement, petitioner's counsel stated he has consulted' with Inspector
Coleman, who was present in the courtroom, and that the inspector was in
accord with counsel's analysis of the circumstances surrounding the citations, including the arguments advanced by counsel with regard to the
statutory criteria set forth in section llO(i) of the Act. Respondent's
representative also expressed agreement with the proposed settlement.
Conclusion
After careful consideration of the arguments presented in support of the
proposed settlement, and taking into account my findings and conclusions
made in this matter, I conclude that the proposed settlement is reasonable
and in the public interest. Accordingly, pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, petitioner's motion is granted and the settlement is
approved.

1513

ORDER
Respondent is ordered to pay civil penalties in the amount of $1,350
in satisfaction of the two citations in question within thirty (30) days
of the date of this decision and order. Upon receipt of payment by MSHA,
this matter is dismissed.

kouda~
Administrative Law Judge

Distribution:
Robert J. Lesnick, Esq., U.S. Department of Labor, Office of the
Solicitor, 911 Walnut St., Rm. 2106, Kansas City, MO 64106
(Certified Mail)
Jesse M. Lee, Clemens Coal Company, Box 299, Pittsburgh, KS 66762
(Certified Mail)

1514

FEDER-A-L MINE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520) LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

1 9 JUN 1980
UNITED STATES STEEL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Contest of Order
Docket No. WEVA 79-172-R
Order No. 0675872
May 2, 1979

Respondent

Gary No. 20 Mine

DECISION
Appearances:

Louise Q. Symons, Esq., U.S. Steel Corporation-, Pittsburgh,
Pennsylvania, for Applicant;
David E. Street, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Respondent.

Before:

Judge Stewart

Contestant United States Steel Corporation filed a timely contest of
Order No. 675872, pursuant to provisions of section 105(d) 1/ of the Federal
Mine Safety and Health Act of 1977 (hereinafter, the Act). -MSHA and the
]:_/

Section 105(d) of the Act reads as follows:
"If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification
of proposed assessment of a penalty issued under subsection (a) or (b) of
this section, or the reasonableness of the length of abatement time fixed in
a citation or modification thereof issued under section 104, or any miner or
representative of miners notifies the Secretary of an intention to contest
the issuance, modifcation, or termination of any order iss~ed under section
104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty, or directing other appropriate relief. Such order shall
become final 30 days after its issuance. The rules of procedure prescribed
by the Commission shall provide affected miners or representatives of
affected miners an opportunity to participate as parties to hearings under
this section. The Commission shall take whatever action is necessary to
expedite proceedings for hearing appeals of orders issued under section 104."

1515

United Mine Workers of America (UMWA) subsequently filed answers denying the
allegations set forth in the contest of order. MSHA and United States Steel
Corporation appeared and participated in the hearing in this matter which
was held on October 16, 1979, in Charleston, West Virginia. On February 11,
1980, these parties filed posthearing briefs. Proposed findings of fact and
conclusions of law inconsistent with this decision are rejected.
Inspector James Christian issued Citation No. 675868 pursuant to section 104(a) of the Act on May 1, 1979. The citation, which alleged a violation of 30 C.F.R. § 75.1722, described the pertinent condition or practice
as follows:
The guards installed on the Grapevine Mains belt
conveyor tail pulley and the 3rd Right Grapevine Mains 002
Section belt conveyor drive and tail pulley did not extend
a distance sufficient to prevent persons from reaching
behind the guards and becoming caught in between the belt
and pullies and the existing guards were not secured to the
equipment.
On the following day, May 2, 1979, the inspector issued Order of Withdrawal No. 675872, pursuant to section 104(b) 2/ of the Act.· He alleged the
following therein: "The belt conveyor drive a~d tail pulleys were not
guarded as required by Citation No. 0675868 issued 05-01-79 at 1015 hrs.
after the expiration of time as originally fixed."
The primary issue presented is whether Order of Withdrawal No. 675872
was properly issued under section 104(b) of the Act.
In Citation No. 675868, the inspector noted three locations at which he
observed alleged violations of section 75.1722. One of these locations was
the tail pulley of the Grapevine Mains belt conveyor. The other locations
were along the 3rd right conveyor belts at its belt drive and tail pulley.
2/

Section 104(b) of the Act reads as follows:
"(b) If, upon any follow-up inspection of a coal or otber mine, an
authorized representative of the Secretary finds (1) that a violation
described in a citation issued pursuant to subsection (a) has not been
totally abated within the period of time as originally fixed therein or as
subsequently extended, and (2) that the period of time for the abatement
should not be further extended, he shall determine the extent of the area
affected by the violation and shall promptly issue an order requiring the
operator of such mine or his agent to immediately cause all persons, except
those persons referred to in subsection (c), to be withdrawn from, and to
be prohibited from entering, such area until an authorized representative
of the Secretary determines that such violation has been abated."

1516

With regard to the Grapevine Mains tail pulley, the testimony of the
witnesses for Petitioner and Respondent is somewhat at odds. Inspector
Christian testified that the guard at the back of the Grapevine Mains was
unsecured and leaning against the framework of the tailpulley at an angle.
The side of the Grapevine Mains conveyor nearest the 3rd right conveyor was
at least partially guarded. The cyclone fencing on the 3rd right provided
some protection but it had been pulled back in this area, thereby exposing
that side of the tall pulley. The side of the Grapevine Mains conveyor
farthest from the 3rd right conveyor was unguarded.
Robert Hatfield, Respondent's mine inspector for the No. 20 Mine, testified that the guarding on the back of the Grapevine Mains tailpiece was
comprised of three or four strips of metal which were each 5 inches wide.
The largest opening which he found in this portion of the guarding was
a 1-1/2-inch gap at the top of the guard. He stated, however, that the
guards on the sides of this tailpiece were loose, or not securely fastened.
The guards on the sides were made of expansion metal. One was secured with
a single bolt; the other was lying loose against the t~ilpiece.
The inspector was of the opinion that the guards on the tailpiece did
not extend a sufficient distance to keep a person from reaching behind the
guards and becoming caught between belt and pulley. Robert Hatfield testified that if a person was "intent on getting into it to injure (himself),"
he could get his hand between the guarding and moving machinery on the side
secured with fa single bolt. He testified as to the other side of the tailpiece that "there's no way you could get into it on the side, it has to be
from the back. 11
3rd Right Belt Conveyor
The drive pulley on the 3rd right conveyor was partially guarded by a
cyclone fence; however, a gap existed in this fence adjacent to the pulley.
Estimations of the distance from fence to pulley ranged from 1 to 3 feet.
The inspector believed that a person could reach through the opening and
become caught between belt and pulley. His description of the gap was
essentially a vertical opening in the fencing ranging in width from one to
more than 4 inches. The opening was 4 to 4-1/2 inches at the pulley.
Dallas Runyon, Respondent's mine foreman, testified that the hole in the
fence at the drive pulley existed to allow passage of a power conductor to
the belt motor. He admitted that a person could reach through the fence
and contact the roller.
Finally, the inspector was concerned with the absence of guarding at
the tailpiece of the 3rd right conveyor. On May 1, 1979, the feeder was
discharging coal onto the tailpulley, thereby guarding the top of the belt.
However, the sides, back, and lower bottom of the tail pulley were unguarded.

1517

a

The inspector believed· that- person could become caught between belt and
pulley. The exposed area was approximately 1-1/2 by 3 feet. In order to
gain access, an employee would have to be on hands and knees.
Violation
Section 75.1722 reads 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.
(b) Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance sufficient to
prevent a person from reaching behind the guard and becoming
caught between the belt and the pulley.
(c) Except when testing the machinery, guards shall
be securely in place while machinery is being operated.
The guarding at the Grapevine Mains tailpiece was in violation of all three
paragraphs of the standard. Even though the testimony of the inspector and
that of Mr. Hatfield conflicted in detail, the testimony of each taken by
itself would establish that the guarding was not sufficient to prevent
injurious contact with the tail pulley. It is clear that the guarding at the
tailpiece did not extend a sufficient distance to prevent a person from
reaching behind it and becoming caught. Moreover, it was established that
the conveyor had been in operation while certain of the guards were not
securely in place. The conveyor drive pulley and the tail pulley on the
3rd right conveyor were in violation of the mandatory standard in that portions of each were unguarded or inadequately guarded. Although confusion
exists as to the precise confi~uration of the hole in the fence at the belt
drive, both Dallas Runyon and the inspector testified that contact could be
made with the adjacent pulley. With regard to the tailpiece of the 3rd
right section, the testimony of the inspector is accepted. When the feeder
was in place, the belt and tail pulley could be contacted at the sides and
bottom.
The record establishes a violation of section 75.1722.
No. 675868 was properly issued.

Citation

Order of Withdrawal
Section 104(b) of the Act requires that an inspector shall issue an
order when he finds that a violation described in a citation issued pursuant
to section 104(a) has not been totally abated within the time specified and
that the time for abatement should not be further extended. The test as to
whether a 104(b) order was properly issued was enunciated by the Board of

1518

Mine Operations Appeals in United States Steel Corporation, 7 IBMA 109, 116
(1976). It was stated therein that "the inspector's determination to issue
a section 104(b) order must be based on 'facts confronting the inspector at
the time he issued the subject withdrawal order regarding whether an additional abatement period should be allowed.'" The critical question is
whether the inspector acted reasonably in failing to extend the time for
abatement and in issuing the subject order.
Citation No. 675868 was issued at 10:15 a.m. on May 1, 1979. The
inspector specified that the condition was to be corrected by 8 a.m. on
May 2, 1979. The inspector reentered the area of the Grapevine Mains and
3rd right conveyors at approximately 12 noon on May 2, 1979. He observed
the condition as previously cited, and issued 104(b) Order No. 675872. The
parties stipulated that Order No. 675872 caused the shutdown of the entire
section until the order was terminated. At the hearing, the inspector testified that he issued the closure order because Contestant had ample opportunity to correct the condition but failed to do so.
The order was orally modified at 12:30 p.m. to allow use of the
Grapevine Mains conveyor. After this modification, mine management decided
to remove the 3rd right conveyor from.service. The inspector was notified
of management's decision after he issued Order No. 675872 and the subsequent
modification, but before he put them into writing. He put the orders into
writing after proceeeding to the surface. Contestant spent 7 hours
dismantling the 3rd right conveyor. The inspector terminated the entire
order on the following morning, May 3, at 9:30 a.m.
When the inspector arrived in the affected area on May 2, the following
problems remained:
(a) Guards had been installed on the Grapevine Mains conveyor tailpiece
but openings still existed at the sides of the tailpiece through which a
person could contact and become caught in belt and pulley. The installed
guards did not extend far enough to prevent the possibility of this occurrence.
(b) The gap still existed in the cyclone fence at the belt drive of the
3rd right conveyor. To abate the condition, Contestant need only have wired
the fence together.
(c) Some guarding had been installed on the 3rd right conveyor tailpiece
but there was still no guarding on the sides. A person could still reach
into and become caught in between the belt and the pulley.
Dallas Runyon testified that work had been done on the guarding throughout the second shift on May 1, and completed during the early part of the
first shift on May 2. He also testified that the guarding on the Grapevine
Mains tailpiece had been installed and removed on a number of occasions
because of two separate malfunctions, the second of which occurred on the
morning of May 2.

1519

It is clear--tha-t· ·th-e -tength of time set by the inspector for abatement
was adequate. The Grapevine Mains tailpiece could have been sufficiently
guarded within the time set. The condition was abated with respect to this
tailpiece 20 minutes after the order was issued. The gap in the fence by
the belt drive needed only to be wired together. Finally, Contestant had
installed a guard at the 3rd right conveyor tailpiece, but left an opening
of approximately 18 inches. Adequate guarding clearly could have been
installed by 8 a.m., the next day, the time set by the inspector for
abatement.

Given the facts with which the inspector was confronted at the time he
issued Order No. 685872, extension of the time set for abatement would have
amounted to condonation of Contestant's failure to abate. The inspector
arrived in the affected area 3 hours after the time set for abatement had
expired, yet he observed substantially the same conditions which gave rise
to Citation No. 675868. Some effort to abate had been made, but the effort
was inadequate. No extenuating circumstances were communicated to the
inspector which would have warranted the failure on the part of the Contestant to abate the violation. It was not demonstrated that the two malfunctions were sufficiently serious to have excused this failure. Moreover,
there is no indication on the record that the malfunctions had any relationship to Contestant's failure to comply with the mandatory standard as regards
the hole in the cyclone fence at the 3rd right belt drive or ·the gaps which
existed at the 3rd right tailpiece. It may have been improbable that an
accident would have occurred due to Contestant's failure to adequately guard
parts of the conveyors but it cannot be said that no safety hazard was presented. In view of the adequacy of the time originally set for abatement,
the existence of some safety hazard,. and the absence of extenuating circumstances, it is found that the inspector acted reasonably in refusing to
extend the time for abatement and in issuing Order No. 675872.
Contestant also asserted that the inspector abused his discretion in
failing to terminate Order No. 675872 when he learned of the operator's plan
to abate the order by physically removing the 3rd right conveyor belt. It
was reasoned that the operator had eliminated the hazard which the standard
was intended to prevent because it had shut down the conv~yor and put in
motion its efforts to remove the conveyor from service.
The operator did not initiate efforts to abate the order with respect
to the 3rd right conveyor prior to the time the inspector left its immediate
vicinity. The inspector was first notified that the operator would remove
the conveyor to abate the violation after he had proceeded to an area one
break from the conveyor. Dallas Runyon proposed its removal in response to
the inspector's requirement that an area one break down from the tailpiece
be cleaned to eliminate a slipping hazard.
The actual dismantling of the conveyor began only after the inspector
left the area to proceed out of the mine. The record does not contain more
than a general indication of the relevant sequence of events. Contestant has

1520

not established that the condition had been abated before the inspector proceeded out of the mine; nor did Contestant establish the time at which abatement actually occurred. In this instance, the inspector was not unreasonable
in refusing to terminate the order, notwithstanding his knowledge of Contestant's intent to abate the violation by removing the conveyor.
ORDER
It is ORDERED that the above-captioned contest of order is hereby
DISMISSED.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Louise Q. Symons, Esq., U.S. Steel Corporation, Law Department,
600 Grant Street, Pittsburgh, PA 15230 (Certified Mail)
David E. Street, Esq., U.S. Department of Labor, Office of the
Solicitor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)

1521

FEDERAL M-IN·E-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JUN 1 9 1980

Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 79-40-M
A.O. No. 14-00521-05002

Petitioner

v.
Oatville Sand & Gravel Dredge
OATVILLE SAND & GRAVEL COMPANY,
Docket No. CENT.79-41-M
A.O. No. 14-00550-05002

VIC'S SAND & GRAVEL COMPANY,
Respondents

Vic's Sand & Gravel Co. Pit
DECISIONS
Appearances:

Robert J. Lesnick, Attorney, U.S. Department of Labor,
Kansas City, Missouri, for the Petitioner;
Victor B. Eisenring, pro~· Witchita, Kansas, for the
Respondents.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for a total
of 19 alleged violations of certain mandatory safety standards found in
Part 56, Title 30, Code of Federal Regulations.
Respondent filed timely answers in these proceedings contesting the
citations and requesting a hearing. Hearings were convened pursuant to
notice in Wichita, Kansas, on April 22, 1980, and the parties appeared and
participated fully therein. With regard to Docket No. CENT 79-41-M, testimony and evidence was taken on the record and pursuant to Commission Rule 65,
29 C.F.R. § 2700.65, and at the request of the parties, a decision was
rendered from the bench and is herein reduced to writing as required by section 2700.65(a) of the Rules. With regard to Docket No. CENT 79-40-M, the
parties proposed a settlement of the citations in question, and pursuant to
Rule 30, 29 C.F.R. § 2700.30, were afforded an opportunity to present their
supporting arguments on the record, settlement was approved, and my decision
in this regard follows herein.

1522

Docket No. CENT 79-41-M
This docket concerns four citations issued by MSHA inspector David P.
Lilly on August 8, 1978, all alleging violations of the provisions of
30 C.F.R. § 56.9-87, which provides as follows:
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 conditions or practices cited by Inspector Lilly in each of the
citations in question are as follows:
Citation No. 181495
The stockpile 966 front-end loader was not equipped with
a working audible backup alarm to warn persons in the area
when the unit was backing up.
Citation No. 181498
The heavy haul truck, a new International dump, was not
equipped with an audible backup alarm to warn persons in the
area when the unit was backing up.
Citation No. 181499
The heavy haul truck, a Mack No. A-4, was not equipped
with a working audible backup alarm to warn persons in the
area when the unit was backing up.
Citation No. 181500
The heavy haul truck, a 1972 Mack dump, was not equipped
with a working audible back-up alarm to warn persons in the
area when the unit was backing up.
Stipulations
The parties stipulated that the mines in question were sole proprietorships owned and operated by Mr. Victor Eisenring at the time the citations
were issued, that the sand and gravel pit in question employed six employees
and had an annual production of 16,416 man-hours, and that the mine had no
previous history of prior citations under the 1977 Act.

1523

Testimony and Evidence Adduced by the Petitioner
MSHA inspector David P. Lilly, testified that he has 14 years' experience in surface and underground mining, has taken several MSHA training
courses at the Beckley, West Virginia, Academy, and indicated that his prior
experience includes the operation of heavy-duty mobile equipment. He confirmed that he inspected respondent's sand and gravel mining operation on
August 8, 1978, and while mine operator Victor Eisenring was not on the
premises during his inspection, he was accompanied by his representative.
Inspector Lilly confirmed that he issued the citations in question after
determining that the equipment cited was not equipped with audible backup
alarms. With regard to the front-end loader (Citation No. 181495), he stated
that the loader had an alarm installed, but it was inoperative and would not
sound when the loader operated in reverse. With regard to the remaining
citations concerning respondent's haulage trucks, he testified that he
inspected the trucks and could find no backup alarms installed. In addition, he indicated that he observed the trucks in operation, and that when
they were operated in reverse during the loading process, he heard no audible
- --·
sounds.
Inspector Lilly stated that he believed the respondent was negligent
because he was aware of the requirements for audible backup alarms and
admitted as much to him. The inspector also testified that he granted extensions for the abatement of the citations after being advised that the backup
alarms had been ordered. The citations were subsequently abated by another
MSHA inspector ~fter the mining property and equipment were sold by operator
Victor Eisenring. Mr. Lilly did not know whether the alarms were actually
installed on the cited equipment since Mr. Eisenring sold the property.
Inspector Lilly testified that he determined that there was an
obstructed view to the rear of all four vehicles cited through observation,
inspection, and the fact that he had operated identical equipment in the
past. He also indicated that the size and configuration of the vehicles
contributed to his determination that the view to the rear was obstructed,
and he saw no one present acting as an observer.
With regard to the gravity of the loader citation, Mr: Lilly testified
that in addition to the loader operator, one truck driver was nearby sitting
in his truck, and another driver was out of the truck standing around. He
observed no one else in the vicinity of the loading operations, but did
indicate that the hazard presented by the lack of backup alarms is the fact
that someone could be seriously injured or killed if a vehicle backed over
him without sounding a warning alarm. Although Mr. Lilly alluded to similar
hazards being present with respect to the three truck citations, he indicated that one of the trucks was away from the loading area ready to drive
in when he inspected it, and a second truck was parked nearby the loading
area awaiting its turn to be loaded. He candidly conceded that the chances
for a serious injury to occur on the day in question was somewhat remote due
to the fact that he observed no miners in the immediate vicinity of the

1524

loading operations other than the truck drivers. As a matter of fact, he
testified that the mine employed a total of six employees, and in addition
to the drivers, two employees were in the mine office.
Testimony and Evidence Adduced by the Respondent

.

Victor Eisenring, testified that at the time the citations were issued
he was the owner and.operator of the mine in question, but sold the land and
equipment in November 1978, and that he is no longer in the sand and gravel
mining business. He testified that he was not present when Inspector Lilly
conducted his inspections, and while conceding that the loader had an
inoperable backup alarm, Mr. Eisenring contended that the three trucks cited
by the inspector were factory-equipped with alarms which were activated when
the truck transmissions were placed in reverse. He confirmed the circumstances surrounding the granting of the extensions of the abatement time by
the inspector on the ground that alarms were ordered for the trucks, but
attributed that to someone from his office. He also indicated that it was
possible that Mr. Lilly could not hear the audible alarms since at times
they are rendered inoperable by mud and dirt which may clog the alarmsounding device.
Mr. Eisenring disputed the inspector's contention that the view to the
rear of the trucks was obstructed and he indicated that the operator can see
to the rear by using the rear-view mirrors installed on the trucks, and he
contended that the chances of someone being run over were remote.
Findings and Conclusions
Fact of Violations
I conclude and find that the petitioner has established by a preponderance of the evidence the fact that the equipment cited was not provided
with audible backup alarms as required by section 57.9-87. I find the
testimony of the inspector to be credible and respondent has presented no
evidence to rebut the inspector's findings as to the conditions which he
found and cited on the day in question. Mr. Eisenring was not present during
the inspection and he produced no additional evidence or testimony to rebut
the inspector's findings or testimony concerning the facts and circumstances
surrounding the issuance of the citations. Under the circumstances, the
citations are AFFIRMED.
In addition, considering the entire record adduced in these proceedings,
I make the following findings and conclusions.
Respondent is a small operator with no prior history of violations
issued under the Act.
Although respondent is no longer in the mining business, I cannot
conclude that he is unable to pay the civil penalties assessed by me in
these proceedings, or that the penalties will adversely affect his ability
to remain in business.

1525

The violations resulted from ordinary negligence. That is, I conclude
that respondent failed to exercise reasonable care to prevent the conditions
cited and that he should have been aware of those conditions.
Tq.e evidence and testimony adduced in these proceedings reflects that
respondent exercised normal good faith attempts at compliance once the
citations issued.
Although I consider the lack of workable backup alarms on heavy-duty
equipment to be serious, on the facts presented in this case, I am not
convinced that anyone was exposed to any serious injuries by the lack of
backup alarms on the day the citations were issued, and the inspector
candidly admitted as much.
Taking into account the totality of the circumstances presented on the
day the citations issued, and in particular respondent's size, no prior
history of violations, and the fact that he is no longer in the mining
business, I believe that the following civil penalty assessments are
warranted in this proceeding:
Citation No.

Date

30 C.F.R. Section

Assessment

181495
181498
181499
181500

08/08/78
08/08/78
08/08/78
08/08/78

56.9-87
56.9-87
56.9-87
56.9-87

$ 25
30
25
20
$100

Total
ORDER

Respondent is ordered to pay civil penalties in the amount of $100
for each of the citations which have been affirmed in this proceeding, as
indicated above, payment to be made within thirty (30) days of the date of
this decision, upon receipt of payment by MSHA, this proceeding is dismissed.
Docket No. CENT 79-40-M
The citations, standards cited, initial proposed assessments, and the
proposed settlement amounts in this docket are as follows:
Citation No.

Date

30 C.F.R. Section

Assessment

Settlement

181530
181532
181533
181534
181539
181540
181543
181544

09/07/78

56.12-47
56.12-8
56.12-8
56.12-8
56.4-10
56.12-8
56.12-8
56 .4-2

$ 44
38
38
38
32
38
38
28

$ 30
20
20
20
30
20
20
25

0~/07/78

09/07/78
09/07/78
09/07/78
09/07/78
09/07 /78
09/07 /78

1526

181545
181546
181547
181548
181549
181550
181553

09/07/78
09/07 /78
09/07/78
09/07/78
09/07/78
09/07/78
09/07/78

56.12-8
56.12-8
56.12-8
56.9-87
56.9-87
56.15-1
109(a)

20
20
20
20
20
30

38
38
38
60
60
40
20
$588

10

$325

Discussion
In support of the proposed settlement disposition of this matter, petitioner's counsel furnished in~ormation concerning the size of the respondent's mining operation, gravity, good faith compliance, prior history of
violations, negligence, and asserted that the payment of the proposed settlement amounts will not adversely affect respondent's ability to continue in
business.
Size of Business
At the time the citations were issued, respondent was operating a sand
and gravel operation known as the Oatville Sand and Gravel Dredge and that
its annual production man-hours was 22,605. I conclude and find that this
constitutes a relatively small mining operation.
Prior History of Violations
Petitioner asserted that respondent has no prior history of violations
under the Act, and I adopt this as my finding in this matter.
Negligence
Petitioner argued that each of the violations resulted from the failure
by the respondent to exercise reasonable care to prevent the conditions cited
and that respondent knew or should have been aware of the requirements of the
cited safety standards. Petitioner concluded that all of the citations
resulted from ordinary negligence, and I adopt this as my finding in this
matter.
0

Good Faith Compliance
Although the record reflects that MSHA terminated the citations on
November 22, 1978, when the respondent sold his mining property, petitioner
asserted that respondent exhibited good faith attempts at compliance and
there is no evidence to the contrary. In the circumstances, I cannot conclude that there was a lack of good faith compliance on the part of the
respondent with respect to the periods subsequent to the issuance of the
citations in question.

1527

Gravity
Petitioner asserted that the gravity factor was overevaluated by MSHA
when the citations were initially assessed. After consulting with the
inspector who issued ~he citations and who was present in the courtroom,
counsel asserted that on the day the citations were issued the mine was not
at full-operating capacity, that mining of sand and gravel was not taking
place, and that only routine maintenance functions were being performed.
Under these circumstances, counsel asserted that any miner exposure to the
hazards resulting from the conditions cited was miminal.
In conclusion, petitioner argued that the proposed settlement is reasonable and appropriate, is in the public interest, and will serve to effectuate
the deterrent purposes of the Act. Respondent expressed accord and agreement
with the proposed settlement disposition advanced by the petitioner and
expressed a desire to pay the settlement amounts in satisfaction of the
citations in question.
Conclusion
After careful review and consideration of the arguments advanced by the
petitioner in support of the proposed settlement, and taking into account the
fact that the respondent is no longer in the mining business, I conclude and
find that the proposed settlement is reasonable, and pursuant to 29 C.F.R.
§ 2700.30, it is APPROVED.
ORDER
Respondent is ordered to pay a civil penalty in the amount of $325 in
satisfaction of the 15 citations issued in this matter as enumerated above,
payment to be made within thirty (30) days of the date of this decision.
Upon receipt of payment, this matter is dismissed.

~~"-.,__..,_~.,. v'? /f6-~~ ~~;~~: ...,
~(,,;"

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/

'

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. c,.;.. ./,,...

.... __.,

George-'A. Koutra's
Administrative Law ~udge

Distribution:
Robert J. Lesnick, Esq., U.S. Department of Labor, Office of the
Solicitor, 911 Walnut Street, Rm. 2106, Kansas City, Mo 64106
(Certified Mail)
Victor B. Eisenring, 4900 West 21st. Wichita, KS 67212 (Certified Mail)

1528 .

FEDERAL._Ml_NE. SAF-E-TY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Cl1 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

~03) 756-6230

JUN 1 9 1980
Complaint of Discrimination

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. VA 79-81-D
Virginia Pocahontas No. 5 and No. 6
Mines

On behalf of:
LARRY D. LONG,
Applicant
v.
ISLAND CREEK COAL COMPANY,
and
LANGLEY AND MORGAN CORPORATION,
Respondents

DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, for Applicant;
Marshall S. Peace, Esq., Lexington, Kentucky, for Respondent
Island Creek Coal Company;
James Green, Jr., Esq., Harlan, Kentucky, for Respondent
Langley and Morgan Corporation.

Before:

Judge William Fauver

This proceeding was brought by the Secretary of Labor on_ behalf of
Larry D. Long (Applicant), under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~~·· for review of alleged
acts of discrimination.
The case was heard at Bluefield, West Virginia. All sides were represented by counsel, who have submitted their proposed findings, conclusions,
and briefs following receipt of the transcript.
Having considered the evidence and contentions of the parties, I find
that the preponderance of the reliable, probative, and substantial evidence
establishes the following:

1529

FINDINGS OF FACT
1.

At all pertinent times:

(a) Applicant, Larry Long, was employed by Respondent,
Langley and Morgan Corporation, as a Grade B classified
carpenter.
(b) Respondent Island Creek Coal Company was the operator of the Virginia Pocahontas No. 5 ("V.P.-5") and No. 6
("V.P.-6") Mines in Buchanan County, Virginia. Both mines
produced coal for sales in or substantially affecting
interstate commerce.
(c) Respondent Langley & Morgan was an independent
contractor engaged by Island Creek to construct buildings
and other structures at the V.P.-5 and V.P-6 Mines. Langley
& Morgan worked primarily for the coal industry building
coalhandling facilities. In the fall of 1978, Langley &
Morgan employed about 15 people at the Virginia Pocahontas
Mines and about 130 people in all.
2. The contract between the Respondents required Langley & Morgan to
furnish labor and supervision for the construction at the Virginia Pocahontas
Mines, including road construction, erection of small buildings, excavation
work and miscellaneous construction work. Work assignments would vary from
day to day and could last anywhere from a couple of hours to a few weeks, or
longer. Overall construction of the mines was under the control of Island
Creek because Langley & Morgan was only one of several contractors engaged
by Island Creek, the others being larger than Langley & Morgan and performing
mostly foundation and concrete work.
3. Langley & Morgan employed one general superintendent with authority
over all of its employees.
4. Normally, Island Creek's superintendent would contact Langley &
Morgan's superintendent in the latter part of the day to inform him what
needed to be done the next day. The contract also provided in part:
The Contractor [Langley & Morgan] recognizes that the
requirements elf the Company [Island Creek] may necessitate
assignment of jobs from time to time. It is, therefore,
agreed that the Company may designate the jobs to be performed and the order of performance. The Contractor,
however, shall have full control of the methods employed
to complete said jobs and will supervise the work force.
The Company will not direct the work force.
5. During the fall of 1978, Langley & Morgan was a signatory to the
National Coal Mine Construction Agreement (Agreement). Article III of the
Agreement provided:

1530

This agreement' 18 not intended to interfere with, abridge
or limit the employer's right to manage its construction operations. It is agreed that the management of said operations,
including the direction and scheduling of the work force, the
right to hire and discharge, the right to make reasonable
rules of conduct, the direction, management and control of
business, and other functions and responsibilities which
heretofore been vested in the management, are and shall remain
vested exclusively in the employer provided these rights are
not in conflict with any provisions of this agreement.
6. Langley & Morgan imposed no limitation on its superintendent's discretionary authority to reassign employees from one job to another, except
that he could not assign a man to a job in which he had no experience or to
one with a classification requiring more pay. However, management generally
permitted him to assign employees to a lower classified job without loss of
pay.
7. Further restrictions on assignments of employees outside of their
classifications were governed by Article XVIII of the Agreement. Section (c)
provided:
Every reasonable effort shall be made to keep an employee
at work on the job duties normally and customarily a part of
his regular job, and to minimize, to the extent practicable,
the amount of temporary assignments of particular individuals
to other?jobs out of the employee's classification. However,
where a senior employee has expressed a desire to improve his
ability to perform a job to which he wishes to be promoted, to
the extent practicable, he shall be given a preference in
filling temporary assignments in regard to that job.
Section (d) provided: "In no case may the Employer make temporary assignment
of work outside the employee's classification for the purpose of disciplining
or discriminating against an employee."
8. In mid-October, 1978, Ray Harris temporarily replaced Nathan Meade
as Langley & Morgan's superintendent at the Virginia Pocahantas Mines. Ray
Harris had worked for Langley & Morgan in a supervisory capacity for about
2 years. He did not inquire of management as to the full scope of his
authority with respect to job assignments of the employees. He was told the
duties of each man but there was no discussion with respect to the location
or assignment rights of the employees and there was no understanding that
employees had a right or choice to work at one mine rather than another.
9. In late October, Island Creek was preparing to construct a parking
lot at V.P.-6. Trucks used to haul away fill material were borrowed either
from V.P.-5, which was 8 to 15 miles away depending on the route, or from
other mines operated by Island Creek. No trucks were needed at V.P.-6 on a

1531

permanent basi-s becau-s-e--rhe main highway that went through this project was
in the process of being relocated. All the trucks used by Langley & Morgan
were owned by Island Creek.
muck.

10. Cline trucks and Dart trucks were generally used to haul fill and
They were almost identical except for the manufacturer.

11. A Grade B Cline or a Dart truck operator would receive the same pay
as a Grade B carpenter; however, the employees generally considered operating
such equipment to·be cleaner and more desirable than general carpentry work.
12. An employee would normally work in his classification and would be
kept there if practical. If assigned to operate a piece of equipment outside
his classification on a temporary basis, !:.•.B_•, vacancy or illness, he could
be removed from the equipment and reassigned to work in his regular classification when needed. On a seniority basis, he would be entitled to return to
the equipment, if there were a vacancy, when he was no longer needed for his
classification of work.
13. Beginning in October 1978, Applicant was assigned to drive a Cline
truck as a result of a grievance he filed on September 1, 1978. The grievance
was settled during the third step of the arbitration process on September 19,
1978. The settlement provided: "Mr. Meade will consider Larry for temporary
assignments on equipment. Larry's seniority will be considered in such
assignments when practical."
14. On Monday, October 30, 1978, Applicant was assigned temporarily to
drive a Cline truck at V.P.-6, hauling muck from the B shaft area to the land
area near the A shaft. There were no Langley & Morgan supervisors at V.P.-6.
Activities and employees at that mine were under the active supervision of
Island Creek's project manager, Bill Turley, his assistant Bill Hall, and the
field manager, Ed Fletcher.
15. On that date, as Applicant approached the A shaft in the Cline
truck, at about 2:30 p.m., he observed Ed Fletcher hauling four boxes of
powder and one box of blasting caps in a small pickup truck not equipped to
handle explosives. Applicant stopped his truck and complained to Ed Fletcher
about the danger of using the pickup to carry explosives and of hauling
explosives on a public road.
1

16. About a half-hour before the end of his shift on that date, Applicant complained to "Bill Turley about the incident and said, "Bill, if you
don't do something about the explosives around here you are going to get
everybody on the job site killed." Applicant then dumped his load ana proceeded to refuel for the next morning.
17. At the fuel tank, Applicant told Donnie Philips, a lead dozer operator for Langley & Morgan, that he was going to request a 103(g) inspection
at the local UMW office. Section 103(g) of the Act provides in part:

1532

Whenever a representative of the miners or a miner in
the case of a coal or other mine where there is no such representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection
by giving notice to the Secretary or his authorized representative of such violation or danger.
18. At the end of his shift on.October 30, 1978, Applicant went to the
UMW Office and filed a grievance with his father, Edward Long, Jr., the
international union's safety coordinator, and requested _a government safety
inspection. The grievance stated that Ed Fletcher was carrying powder and
caps in a truck not equipped to haul explosives, that he did not have any
signs on the truck, that he was hauling it across the highway, and that he
was endangering his fellow workers.
19. An inspection was subsequently conducted by MSHA. The company
admitted that the truck was being used to transport powder and ·caps; however,
no violation was charged.
20. The next day, October 31, Applicant went to an arbitration meeting
and did not report for work. At home that evening, he prepared a written
grievance under the Agreement. It read:
I'm asking for one shift's pay under Art. II, Section
(c) (classified work), because on October 30, 1978, Ed
Fletcher went to #5 and brought back (powder and caps) to
#6 in a truck that is not equipped to transport explosives.
Ed Fletcher is an engineer on the job and is exempt from
doing classified work.
21. On the morning of November 1, 1978, Applicant filed the grievance
with Ray Harris and continued operating the Cline truck.
22. The grievance was ultimately settled on December 19, 1978. The
settlement provided: "The Company [Langley & Morgan] agrees.to pay Local
Union 6843 one (1) shift of pay to settle the above. This payment in no way
indicates that the company is guilty of any contract violations and the payment does not set a precedent for settlement in future cases of this nature."
23. Following Applicant's complaint about the explosives truck, Bill
Turley told Ray Harris to have a truck outfitted in compliance with federal
regulations for hauling explosives. Bill Turley did not request anyone in
particular to perform the work. About 15 minutes before the end of the
shift on November 1, Ray Harris told Applicant to refuel the truck and to
report to V.P.-5 in the morning with his carpenter tools to outfit a truck
in compliance with federal regulations for hauling explosives and to build a
powder box according to state and federal laws. Applicant had not completed

1533

hauling muck in the Cline when the instructions were given to him. When Ray
Harris instructed applicant to outfit an explosives truck, he appeared
angered at Applicant and his tone of voice became harsh. He told Applicant:
"You know enough [about explosives trucks] to make a complaint." Other carpenters in Applicant's classification were available to perform the reassignment given to Applicant on November 1.
24. Although the assignment was within Applicant's carpenter classification, he had no experience outfitting trucks to carry explosives. Andy
Keene, a lead carpenter, and Ray Harris instructed Applicant as to the
procedure for carrying out the assignment. Applicant began working on the
truck and powder box on November 2, 1978, and continued working on the truck
on November 3 and on Monday,_ November 6.
25. When Ray Harris assigned Applicant to V.P.-5 on November 1, he knew
that Applicant had a history of filing grievances and he knew of Applicant's
safety complaint involving Ed Fletcher.
26. On November 2, 1978, most of the Langley &-Morgan crew was at
V.P.-5 except for a few equipment operators who were at V.P.-6. Donald
Church, a cement finisher, and two Grade A carpenters, Glen Dawson and Andy
Keene, who usually performed more specialized jobs, were helping to lay
asphalt, which included cutting trees and leveling the land.
27. After his reassignment to outfit the explosives truck, Applicant
did not file a written grievance under the Agreement.
28. On Monday, November 6, 1978, Terry Gabbert replaced Ray Harris as
superintendent for Langley & Morgan until N. C. Meade returned. During
orientation, Ray Harris mentioned to Gabbert that Applicant had a history of
filing grievances against the company.
29. That morning, the crew was waiting outside the office for Ray
Harris to unlock the door and begin the weekly safety meeting, known as a
"tool box" meeting~ Applicant said, "Good morning," to Terry Gabbert, his
new supervisor. Ray Harris looked over to the new supervisor and said, "Do
you know that punk?".
30. About 9 a.m., Ray Harris apologized to Applicant, saying that he
did not mean to call him a "punk" earlier that morning. However, Harris did
not seek to correct the adverse impression he had conveyed to Applicant's new
supervisor,
Terry Gabbert.
31. After Applicant finished working on the explosives truck that
morning, Ray Harris assigned him to cleaning rope clamps and painting the
hoist house floor. He continued cleaning rope clamps and painting on
November 7 and November 8. Cleaning rope clamps was essential to the safe
operation of man hoists and keeping them clean was a difficult job.

1534

- . -- --

32. On Thursday, November 9, Applicant worked on an asphalt assignment.
On Friday, November 10, Applicant piloted a Cline truck to V.P.-6, and on
Monday, November 13, Applicant was assigned to V.P.-6 to operate a Dart
truck.
33. On November 2, 3, and 6, when Applicant was outfitting the pickup
truck to carry explosives, he was working within his job classification. On
November 7, 8, and 9, when Applicant was assigned to cleaning rope clamps,
painting and working in asphalt, he was working outside his work classification; however, cleaning rope clamps was not a classified job. At no time did
Applicant suffer a loss in pay.
34. On November 13, Applicant reported to V.P.-6 to operate the Dart
truck. The cab on the Dart truck was positioned on the lefthand side and had
room for one person. It had windows on three sides--in the front, on the
left, and to the right; however it had no mirrors, the horn did not work, and
the brakes were soft.
35. As Applicant prepared to dump a load over an emb~nkment, which was
about 25 feet above another level, he saw Bill Turley and Ed Fletcher below.
He told Bill Turley: "Bill, this truck's unsafe. It's got soft brakes on it.
It don't have any mirrors on it. It don't have a horn on it. You couldn't
warn nobody if you was going down there and somebody walked out in front of
you." Applicant was then told by Bill Turley to park the truck. This
occurred near the start of the morning shift.
36. At about 8 a.m., Applicant parked the truck and waited for another
assignment. Ed Fletcher and Bill Turley drove past him several times that
day while he was standing next to the truck but not until about 20 minutes
to 3, near the end of his shift, did Ed Fletcher tell him to report back to
V.P.-5 the next day. There was no Langley & Morgan supervisor at V.P.-6 that
day.
37. On November 14, Applicant worked at V.P.-5 and was assigned to
paint floors and a pipeline, and to perform other miscellaneous work under
the supervision of Terry Gabbert. Applicant also worked at V.P.-5 on
November 15, 16 and 17. From November 14 through Novemlkr 17, the work
assignments given to Applicant were outside his classificacion. Applicant
did not file a grievance under the Agreement, and suffered no loss of pay.
He did not work the week of November 20 through November 24, when he was on
vacation. On November 27, Applicant reported to V.P.-6 to drive a coal
truck.
38. Beginning in 1974, and through July 6, 1979, Applicant filed 17 of
the 42 grievances filed with Langley & Morgan under Article IV(p) of the
Agreement.
39. After Applicant's complaints on October 30 and November 1, 1978, a
number of hostile statements were made to him and about him, including the
following: Bill Turley, Island Creek's project manager, threatened Applicant

1535

that if Applicant did not stop calling in federal inspectors the job would
have to be shut down; N. C. Meade told the rest of the crew that no overtime
work was being provided because of the complaints filed by Applicant; Danny
Johnson, a co-worker, told him that he was mentally retarded; Bill Harman,
another member of the crew accused Applicant of taking food from his family's
table; as found above (Finding 29), his outgoing supervisor, Ray Harris,
told his new supervisor, Terry Gabbert, on November 6, 1978, that he was a
"punk;" and on several occasions Ed Fletcher and Bill Turley asked Donald
Philips, a dozer operator for Langley & Morgan, to tell Applicant that if he
continued to call in federal inspectors the job would have to be shut down.
40. In December, 1978, Applicant complained to MSHA about the hostility
that had been directed at him. Al Goode, a special investigator for MSHA,
arranged a meeting, at Applicant's request, between Applicant's union representatives and management on January 10, 1979. The following were present:
Floyd T. Mullins, district safety coordinator for the UMWA; Lee James, president of Local 6843; Charlie Van Dyke, Danny Johnson, Bill Harman, employees
for Langley & Morgan; N. C. Meade, superintendent for_Langley & Morgan; Doug
Cottrell, public relations man for Langley & Morgan; Dewey Rife and Donnie
Stallard, special investigators for MSHA. There were no representatives from
Island Creek.
41. At the above meeting, Meade said that he believed Applicant was
(mentally) sick and in need of help, and that Applicant had caused overtime
work to stop because of his grievances. Meade also told the group that
Applicant had placed a call to Langley & Morgan's president, Jack Langley,
and complained that overtime should be cut out because everyone else was
receiving overtime work but him. Applicant had placed a call to Langley
but had not asked to stop overtime work.
42. Hostile statements made by some of Respondents' supervisors, as
found above (Finding 39)>generated hostility in fellow workers against Applicant and could reasonably be foreseen to cause such hostility and to cause
considerable distress and fear in the Applicant. Employee meetings in
November, including some attended by Fletcher or Turley, became so tense that
Applicant could reasonably fear for his safety.
DISCUSSION WITH FURTHER FINDINGS
The basic issues in this case are (1) whether Applicant's complaints on
October 30 and November 1, 1978 (oral complaint to Ed Fletcher, followed by
a section 103(g) complaint to MSHA through UMW, and by written grievance),
and on November 13, 1978 (oral complaint to Bill Turley in the presence of
Ed Fletcher), were protected activities under section lOS(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 .!:.!:.~· (1977 Act), and,
if so, (2) whether the job reassignments following the complaints, were discriminatory within the meaning of section lOS(c) of the Act.
Section lOS(c)(l) of the Act provides in part:

1536

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to
this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine * * * or
because such miner * * * has instituted or caused to be
instituted any proceeding under or related to this Act * * *
One of the purposes of the legislation is to ensure that a miner,will
not be inhibited in exercising his rights afforded by the Act, in particular,
making safety complaints. The Report of the Senate Committee on Human
Resources stated:
If our national mine safety and health program is to be
truly effective, miners will have to.play an active part in
the enforcement of the Act. The Committee is cognizant that
if miners are to be encouraged to be active in matters of
safety and health, they must be protected against any
possible discrimination which they might suffer as a result
of their participation. S. Rpt. No. 95-181, 95th Cong.,
1st Sess. 31 (1977), reprinted in LEGISLATIVE HISTORY OF THE
FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 623 (1978)
(hereinafter "Senate Report").
The drafters of section 105(c) intended that "[w]henever protected activity
is in any manner a contributing factor to the retaliatory conduct, a finding
of discrimination should be made." Senate Report at 36, reprinted at 624.
The Report also stated:
It is the Committee's intention to protect miners
against not only the common forms of discrimination, such
as discharge, suspension, demotion, reduction in benefits,
vacation, bonuses and rates of pay, or changes in pay and
hours of work, but also against the more subtle forms of
interference, such a$ promises of benefit or threats of
reprisal. It should be emphasized that the prohibition
against discrimination applies not only to the operator
but to any other person directly or indirectly involved.
Senate Report at 36, reprinted at 624. [Emphasis added.]
Section 105(c) is intended to provide full protection to a miner who
files or makes a complaint "under or related to this Act," including notifying his foreman or union representative of an alleged danger or safety violation. See Phillips v. Interior Board of Mine Operation Appeals, 500 F.2d

1537

772 (D.C. Cir. 1974);-cert.-denied sub~ Kentucky Carbon Coal Corp. v.
Interior Board of Mine Operation Appeals, 420 U.S. 938 (1975) (interpreting
section llO(b) of the 1969 Act), approved in Senate Report at 36, reprinted
at 624.
The Act also affords the miner the right to obtain an immediate safety
inspection by notifying the Secretary or his authorized representative of an
alleged safety violation. Section 103(g) provides in part:
Whenever a representative of the miners or a miner in
the case of a coal or other mine where there is no such representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspectio~ by giving notice to the Secretary or his authorized
representative of such violation or danger.
The scope of protected activities under section 105(c) includes the exercise
of complaint rights under section 103(g). Senate Report-at 35, reprinted
at 623.
I.

Whether Applicant's safety complaints were protected activities
This question is answered in the affirmative.

In the Phillips case, supra, the Court of Appeals stated that a miner
brings "himself within the penumbra of the [ 1969] Act by notifying his foreman of defective equipment creating dangerous working conditions." 500 F.2d
at 774. The court reasoned that "[s]uch safety violations, followed by
worker notification to management and an ensuing disagreement, are not to be
equated with a simple labor dispute; safety violations bring Section llO(b)
[the predecessor to section 105(c)] of the [1969] Act into operation." Id.
Congress adopted and expanded the holding in Phillips in the 1977 Act.
Section 105(c). I therefore conclude that Applicant's safety complaints to
management, the union, and the Government were protected activities under the
Act.
II.

Whether the job reassignments following the safety complaints violated
section 105(c)

On November 1, 1978, and on November 14, 1978, Applicant received work
reassignments while he was operating a piece of equipment, a Cline truck in
the first instance and a Dart truck in the second. The first reassignment
followed his safety complaints of October 30 and November 1, 1978. The
second followed his safety complaints of October 30, November 1, and
November 13, 1978. The first reassignment, to outfit a pickup truck to
carry explosives, was within Applicant's Grade B carpenter classification.
Following completion of this job, Applicant was not reassigned to the Cline

1538

but, instead, was assigned to perform miscellaneous work both within and
outside
his classification as a carpenter. He suffered no loss in pay.
The second reassignment, involving painting and asphalt work, was not within
Applicant's carpenter classification. It involved no loss in pay.
The Secretary of Labor argues that the two reassignments violated section 105(c) because they were motivated by a retaliatory intent by both
Respondents to penalize Applicant for his prior safety complaints and to
deter future safe~y complaints. The Secretary argues that Respondents'
animus towards Applicant was manifested in threats and the use of abusive
language by Applicant's supervisors and his co-workers who were told by
management that overtime was discontinued because of Applicant's complaints
and that the job would be shut down unless Applicant ceased making complaints. Such direct and indirect pressure by Respondents, the Secretary
contends, created a tense atmosphere at the safety meetings, which caused
Applicant (and other employees) to fear for his safety and was intended to
deter him from making safety complaints in the future. The Secretary argues
that the evidence of animus towards Applicant affirmatively shows that the
reassignments were motivated by Applicant's participation -in protected
activities.
The Secretary of Labor asserts that proof o{ tangible injury or damages
is not an element of proving discrimination within the meaning of section
105(c), The gravamen of the violation, the Secretary argues, is not a tangible injury; rather, it is the character of the motivation of the persons
committing the acts and the discriminatory or interfering nature of such
acts. The Secretary argues that once interference with safety complaint
rights is found, injury to both the individual and to the public interest is
presumed.
The Secretary asserts that Island Creek as much as Langley & Morgan
discriminated against Applicant. The Secretary points to evidence that
establishes that Island Creek's management was aware of safety complaints by
Applicant, that Island Creek supervised activities at V.P.-6 and, on occasion, at V.P.-5 and that its supervisory personnel threatened employees with
closing down the job because of Applicant's filing of safety complaints.
Respondents argue that Applicant frequently filed written grievances
under the collective bargaining agreement, but none were directed primarily
to safety violations. They contend that under the Agreement an employee
could be assigned to perform duties below his work classification without a
change in the rate of pay, and if an employee were exercising his right of
seniority to obtain temporary work assignments to upgrade his experience, he
could be taken off the temporary job to perform needed work within his job
classification. They argue that an employee dissatisfied with
work
assignments outside the scope of his work classification must avail himself
of the procedures in Article III of the Agreement.
Respondents assert that Applicant was treated no differently than other
employees, some of whom had Grade A capenter classifications. They contend

1539

that the two work reassignments were based on legitimate employment needs and
that everyone was required, from time to time, to work at various jobs both
within and outside his job classification.
They argue that the two reassignments did not violate the Agreement, but
even assuming they did, Applicant neither protested the reassignments nor
filed a grievance as he had done on other occasions when dissatisfied with
an assignment.
Island Creek also argues that once Respondents have shown that the
reassignments were within the framework of the Agreement, the burden should
shift to Applicant to show that he suffered more than a perceived injury or
perceived interference flowing from otherwise lawful acts. Island Creek
argues that to prove a violation of section lOS(c), there must be a tangible
injury, loss or interference, judged by objective standards, that would reasonably inhibit future exercise of rights afforded by the Act.
Finally, Island Creek argues that the two reassignments were made solely
by Langley & Morgan supervisors with no participation by Island Creek's
supervisors. Island Creek asserts that even if its supervisors had on occasion requested Langley & Morgan employees to perform certain jobs, that fact
is immaterial to the present case.
To prove a violation of section lOS(c), Applicant must show that the
work reassignments or either of them "disciminate[d] against [him] * * * or
otherwise interfere[d] with the exercise of [his] statutory rights." Whether
or not the reassignments violated the Act ultimately turns on whether they
were motivated by an intention to penalize Applicant for a prior safety complaint or to inhibit Applicant from making future safety complaints.
Respondents' arguments that the question of job reassignments should
have been left for arbitration under the Agreement begs the question of
whether the reassignments were discriminatory. If it is found that Applicant
was engaged in protected activity and that the reassignments were discriminatory, then Applicant is properly before this Commission and the grievanceremedy argument falls. If no discrimination is found, there is neither
jurisdiction nor need to consider the grievance-remedy argument.
I find that a preponderance of the evidence establishes that the first
reassignment, on November 1, 1978, was discriminatory and motivated by an
intent to penalize Applicant for prior safety complaints and to discourage
Applicant from making safety complaints in the future. I find that both
Respondents engaged in this discrimination.
In Shapiro v. Bishop Coal Company, 6 IBMA 28 (March 2, 1976), a discharge case, the Interior Board of Mine Operations Appeals considered a factual aspect of the case similar to the instant case. The Board found that
two incidents involving safety complaints led to management animus towards
the complaining miner. In one of the incidents, the miner complained to
MESA (the predecessor to MSHA) that the company was not properly maintaining

1540

sanding devices on mantrip buses. Following an inspection by MESA, the miner
was assigned to clean the sanding devices, which was within his work classification. The Board found significant that at the time of the assignment,
the foreman told the miner that since he was the one who made the complaint,
he would be the one to clean the devices. Accepting the miner's testimony
over that of the foreman, the administrative law judge found, and the Board
agreed, that there was sufficient evidence to support a finding of a discriminatory intent in making such assignments. 6 IBMA at 52.
In the instance case, Harris knew Applicant had filed a complaint about
the pick-up truck used to haul explosives and Donald Phillips testified that
Harris appeared angry with Applicant when he assigned him to build a truck
in compliance with federal regulations. There was also testimony, which I
also credit, that Harris said to Applicant: "You know enough [about explosives trucks] to make a complaint." As noted, the Interior Board was of the
opinion that the retaliatory bad faith of a work assignment was established
when the foreman told the complaining miner that since he was the one to make
the complaint he would be the one to abate the safety hazard~
The hostile statements by Respondents' supervisors made to and about the
Applicant a~ter his complaints on October 30 and November 1 (see Findings
39-42), confirm a retaliatory and discriminatory intent by Respondents toward
Applicant because of such safety complaints. A preponderance of the evidence
establishes a reasonable inference that supervisors of both Respondents acted
in concert in showing retaliatory and discriminatory intent toward Applicant
and that the November 1 reassignment was a product and manifestation of their
animus towards him.
I find that, regardless of the legitimate nature of the November 1 work
reassignment, the motivating cause was the safety complaints on October 30
and November 1, and this establishes a violation of section 105(c).
I also find that the second reassignment, on November 14, 1978, was discriminatory and intended to penalize Applicant for prior safety complaints
and to discourage Applicant and others from making future safety complaints.
Applicant was removed from the Dart truck on November 13 after he complained
that it was unsafe; however, instead of reassigning him tD\_ another job at
V.P.-6 or to V.P.-5, Bill Turley (in the presence of Ed Fletcher) told him to park
the truck, with no other directions. On several occasions that day, both men observed
Applicant standing idly by the truck with nothing to do. I find this treatment of Applicant by Island Creek was contrary to and inconsistent with the
~ormal procedures a~ the mine and exhibited a retaliatory and discriminatory
i~tent towards A~plicant because of the safety complaint.
The testimony of
witnesses establishes that Island Creek actively supervised and controlled
all work assignments carried out at V.P.-6. Letting Applicant stand around
for nearly one shift before giving him an assignment, clearly in disregard
of t~e establishe~ practice at the mine, exhibited an intent to punish
A~plicant fo: having made a safety complaint earlier that morning and to
discourage him from making safety complaints in the future. I find that this
II
II
•
coventry treatment of Applicant on November 13 was an integral part of

1541

Applicant's reassignment on November 14, 1978, to perform miscellaneous work
outside his work classification, and that the November 14 reassignment was
discriminatory and intended to penalize Applicant and to discourage him from
making future safety complaints. A preponderance of the evidence establishes
a reasonable inference that Terry Gabbert was aware that Applicant had voiced
a safety complaint about the Dart truck and that he purposely assigned him
to less desirable work to penalize him and to discourage future safety
complaints.
Congress "emphasized that the prohibition against discrimination applies
not only to the operator but to any other person directly or indirectly
involved." Senate Report at 36, reprinted at 624. I find that supervision
of construction activities at the Virginia Pocahontas Mines was not exclusively under the control of Langley & Morgan but was under the joint control
of both Respondents. The construction agreement between the Respondents was
in the nature of a service contract in which Island Creek requisitioned men
and materials for a particular job on a day-to-day basis. Under this arrangement, men were used interchangeably at both mines, sometimes moving back and
forth in a single day, and the jobs lasted from a few -hours to a few weeks,
or longer. Fletcher and Turley, or another Island Creek superintendent,
generally directed work activities at V.P.-6 and one of the Langley & Morgan
superintendents (Meade, Harris or Gabbert) generally directed work activities
at V.P.-5 so that whether Island Creek or Langley & Morgan exercised control
over a particular employee depended on whether he was working at one mine or
the other. I find unconvincing Island Creek's argument that it was far
removed from the day-to-day activities at the mines. I find that the procedure used by Island Creek was to notify Langley & Morgan's management,
usually at the end of the day, as to what needed to be done the following
day. When necessary, Island Creek would specify the details of the job and,
if it involved hauling dirt or other material, would supply the trucks. The
procedure was informal and not intended to preclude Island Creek from
exercising control.
When Applicant was working at V.P.-6 on November 13, he was under the
control of Island Creek so that if a problem arose, such as the condition of
the Dart truck, Applicant was expected to notify Turley or Fletcher. If the
truck were not safe to operate, they would be expected to ~eassign Applicant
to another truck or to another job. Instead, they let Applicant languish
next to the parked truck for nearly an entire shift as punishment for making
the safety complaint and to discourage Applicant from making complaints in
the future.
Given the joint nature of supervision of work activities at the mines, I
find that Applicant's assignment to miscellaneous work outside his classification by Superintendent Gabbert on November 14 was discriminatory and integrally related to the "coventry" treatment on November 13. In this instance,
as with the reassignment on November 1 following the safety complaints about
the explosives truck, a preponderance of the evidence establishes a cause and
effect relationship between the complaint about the Dart truck and the

1542

reassignment to miscellaneous work. Congress intended a broad sweep of section 105(c)'s protection against discrimination so that "[w]henever protected
activity is in any manner a contributing factor to the retaliatory conduct, a
finding of discrimination should be made." Senate Report at 36, reprinted at
624 (emphasis added).
The drafters of the 1977 Act explicitly rejected limiting the reach of
section 105(c) to "common forms of discrimination," and intended its prohibition against retaliatory conduct to include "more subtle forms of discrimination." Senate Report at 36, reprinted at 624. I find that Respondents'
treatment of Applicant following both safety complaints was a sustained form
of psychological interference intending to punish Applicant and deter him and
others from making future safety complaints. The effect and intent of their
harassing techniques were evidenced in the weekly safety meetings, which
Donald Phillips described as becoming increasingly hostile and dangerous to
Applicant, as well as in specific demeaning remarks made by Respondents'
supervisors to and about Applicant. When supervisors direct intentionally
demeaning statements to an employee, incite hostility against him, and give
him assignments to do less desirable work, all with a retaliatory intent
(punishing Applicant for filing safety complaints and discouraging future
safety complaints), a violation of the Act is proved.
The record is replete with evidence of management animus toward Applicant because of his safety complaints. Island Creek Coal supervisors frequently told Applicant's co-workers that Applicant's safety complaints to
management, the union, and the federal government threatened them with a loss
of work and overtime. Langley & Morgan supervisors were similarly angered by
Applicant's sajety complaints and threatened to close down the job if Applicant continued to make safety complaints and called in the federal government
again. They subjected him to abusive language and held him up to public
ridicule and contempt before his co-workers. The hostility they directed at
him and generated in his co-workers resulted in such tension in Applicant's
relations with such supervisors and co-workers that he could reasonably fear
for his safety. I find that the underlying motive behind the reassignments
was a retaliatory intent that violated the Act.
I find unconvincing Island Creek's argument that even_jf Applicant was
discriminated against, he suffered no injury in fact. Although Applicant
suffered no loss in pay and was not discharged, both reassignments were to do
less desirable work; the operation of heavy equipment was generally preferred
as better, cleaner work than normal carpenter work. This was especially true
as to Applicant, who had filed and won a grievance to exercise his seniority
right to operate heavy equipment when available and he was not needed for his
classification.
In summary, with further specific findings, while Applicant and other
Langley and Morgan employees were working at the V.P.-6 Mine, they were
actively supervised by Island Creek supervisors, including Ed Fletcher and
Bill Turley. Each reassignment in issue occurred while Applicant was working at the V.P.-6 Mine. In each case he made a safety complaint to Fletcher

1543

--

'

-- --

or Turley and Langley & Morgan management had actual or clearly implied
knowledge of it. In each case he was shortly reassigned from heavy equipment
work to do less desirable work. After the first safety complaint, on
October 30, 1978, and extending beyond the complaint on November 13, 1978,
supervisory personnel of both Respondents showed increasingly harsh and
retaliatory animus toward Applicant because of such complaints. Taken as a
whole, I find that the preponderance of the evidence shows that the Respondents acted as joint supervisors of Applicant in connection with the two
reassignments in issµe, that the reassignments were discriminatory, retaliatory, and intended to penalize Applicant for prior safety complaints and to
deter him and others from making safety complaints in the future, and that
the retaliatory acts of Respondents' supervisors combined to cause and
resulted in such reassignments. The Respondents are jointly and equally
responsible for these discriminatory reassignments, which constitute violations of section 105(c) of the Act.
As relief, Applicant requests the following:
1. An order directing Respondents to cease and desist in discriminatory
harassment of Applicant.
2. An order directing Respondents to pay, in accordance with section
105(c)(3) of the Act, all costs and expenses reasonably incurred by Applicant
for and in connection with the institution of this proceeding.
3.

A civil penalty assessed against Langley & Morgan for $5,000.

4.

A civil penalty assessed against Island Creek for $7,000.

The authority for assessing a civil penalty against an operator for a
violation of section 105(c) of the Act is found in sections 105(c)(3) and
llO(a). Section 105(c)(3) provides in part: "Violations by any person of
[section 105(c)(l)] shall be subject to the provisions of sections 108 and
llO(a)." Section llO(a) provides in part: "The operator of a coal or other
mine in which a violation 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 * * *·"
CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdiction over the parties and subject
matter of the above proceeding.
2. At all pertinent times, each Respondent was an "operator" of the
V.P.-5 Mine and of the V.P.-6 Mine within the meaning of section 3(d),~f the
Act.
3. Respondents, Langley & Morgan Corporation and Island Creek Coal
Company, as joint supervisors of Applicant, violated section 105(c) of the

1544

Act (1) by reassigning Applicant to outfit an explosives truck on November 1,
1978, and (2) by reassigning Applicant to miscellaneous work outside his work
classification on November 14, 1978.
ORDER
PENDING FINAL ORDER, Applicant shall have 7 days to submit a proposed
order for relief, with service on Respondents. Respondents shall have 7 days
from such service to file any response to the proposed order.

u;~:r~
WILLIAM FAUVER, 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)
James Green, Esq., Counsel for Langley & Morgan Corporation, P.O.
Box 995, Harlan, KY 40831 (Certified Mail)
Marshall s. Peace, Counsel for Island Creek Coal Company, P.O.
Box 11430, Lexington, KY 40575 (Certified Mail)

1545

FEDERAL M-1-NE -SAffTY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

(703) 756-6225
2 O JUN 1980

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 79-152-M
A.O. No. 39-00049-05004

Petitioner

v.
Mine: American Colloid
Belle Fourche Mill

AMERICAN COLLOID COMPANY,
Respondent

DECISION
Appearances:

Phyllis K. Caldwell, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;
Max Brooks, Corporate Manager for Industrial Relations,
American Colloid Company, Belle Fourche, South Dakota,
for Respondent.

Before:

Judge Edwin S. Bernstein
STATEMENT OF THE CASE

In accordance with Section 105(d) of the Federal Mine Safety and Health
Act of 1977 (the Act), I held a hearing in this case on May 8, 1980, in
Rapid City, South Dakota.

At the hearing, the parties stipulated and I find:

1. This case comes within the jurisdiction of the
Federal Mine Safety and Health Act of 1977, and I have
jurisdiction.
2. The citations here were properly served by duly
authorized representatives of the Secretary of Labor.
3. Respondent is a medium size operator with
approximately 90 employees.
4. · There was good faith abatement of all citations.

1546

5. The penalties proposed would not adversely affect
Respondent's ability to remain in business.
6. Respondent has a medium to low history of previous
violations.
FINDINGS AND DECISION FOR ORDER NO. 328549
Petitioner alleged that Respondent violated the mandatory standard at
30 C.F.R. § 55.15-5, which reads:

"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."
Two witnesses testified for each party.
testified for Petitioner.
Respondent.

The inspector, Guy Carsten,

Alfred Williams and Bill Reitz testified for

Keith Campbell testified for Petitioner as a rebuttal witness.

Petitioner's witnesses contended that at the time Inspector Carsten
visited the facility, there were two men on Respondent's conveyor belt.

One

was on the belt about 10 to 12 feet above the ground; the other was in a
hopper about four to five feet above the ground.

Respondent's witnesses

contended that the only man on the site was in the hopper.and since he was
only four or five feet off the ground, there was very little danger of injury
through falling.
Inspector Carsten testified that when he visited Respondent's facility
on March 13, 1979 in the company of Keith Campbell, an MSHA trainee, he noted
two men on Respondent's conveyor belt system.

One was 10 to 12 feet off the

ground on the conveyor belt itself, and the other man was in the hopper.

1547

The

man on the conveyor belt was not wearing a safety bel.t.

The inspector veri-

fied this when he approached the belt, and immediately issued an imminent
danger order under Section 107(a) of the Act.

The violation was abated

within 20 minutes by having the man put on a safety belt.
Mr. Carsten stated that the conveyor belt was approximately three feet
wide, 40 feet long, and on a 40-degree angle.

He was told that the con-

veyor belt was frozen and was in the process of thawing.
bentonite }:_/ on the conveyor belt.

There was some

Mr. Carsten testified that the

bentonite was wet, making the belt slippery.

He concluded that there was

a great danger of the man falling from the slippery conveyor belt.

If this

had occurred, the man would have fallen about 10 to 12 feet onto the frozen
ground.

Mr. Carsten felt that this could result in a fatality or serious

injury, such as a head injury or a broken neck.

He based this conclusion

on a somewhat ~imilar case where a man fell only seven feet and was killed
even though he was wearing a hardhat.

Mr. Carsten therefore concluded that

this was an imminent danger situation.

He also stated that Respondent was

negligent because the conveyor could be seen from the windows of Respondent's
office.
Alfred Williams, Respondent's plant manager, testified that he saw a man
in the hopper, but he did not see a man on the conveyor belt when the inspector visited the office.

He testified that from the hopper area, a man would

have fallen approximately five feet into a soft unpacked pile of bentonite,
1/

Bentonite is a type of clay which Respondent produces.

1548

and would not have been injured.

He added that he was unaware at the time

that a withdrawal order was being issued.
Bill Reitz, Respondent's maintenance superintendent, testified that he
saw a man in the hopper, but not on the conveyor belt.

He agreed with

Mr. Williams that if a man fell from the hopper, he would fall only three
to four feet into a pile of soft bentonite.

In his opinion, there was very

little danger of injury if the man had fallen from the hopper.
On cross-examination, however, Mr. Reitz stated that there could have
been two men on the conveyor belt, and the second one may have been on the
conveyor further up from the hopper.

He stated that he would not contradict

the inspector's testimony that he saw a man on the conveyor belt in addition
to the man in the hopper.

He further testified that because of Mr. Carsten's

concern he immediately instructed the men to put on safety belts.

He also

stated that he did not remember whether he received the imminent danger order,
but again he would not dispute Inspector Carsten's testimony.
Keith Campbell testified for Petitioner as a rebuttal witness.

He

stated that he accompanied Inspector Carsten on March 13, 1979, as an inspector trainee. Mr. Carsten told Mr. Campbell that he could run the inspection
while Mr. Carsten observed.

Mr. Campbell testified that he saw one man on

the belt and one man on the hopper.

He had no difficulty observing and he

carefully watched the men on the conveyor belt for about a minute.

He had

no doubt that there were two men and that one man could have fallen approximately 12 to 15 feet.

1549

I find that Respondent violated the mandatory safety standard at
30 C.F.R. § 55.15-5 and that the imminent danger order was proper in that
there was a man on the conveyor belt between 10 and 15 feet above the ground
who was in imminent danger of falling, was not wearing a safety belt, and
did not have a line attached to him.
Although there seems to be a conflict between the testimony of Petitioner's two witnesses on the one hand, and Respondent's two witnesses on the
other, I am persuaded there was a man on the conveyor belt in addition to a
man in the hopper.

The Government witnesses testified unequivocally and with-

out inconsistencies, and I found them to be extremely credible.

Mr. Reitz's

testimony did not directly conflict with the inspectors' testimony.

He indi-

cated that although he did not observe two men on the conveyor belt, this
could have be~n the case and he would not contradict the inspectors' testimony to that effect.

As for Mr. Williams, he indicated that he was approxi-

mately 250 feet ·away from the conveyor.
conflicting testimony.

There are two explanations for his

Either his ability to observe was impaired and he

observed incorrectly, or he testified falsely.
mine that he testified falsely.

It is not necessary to deter-

I prefer to give him the benefit of the

doubt and conclude that his ability to observe was not as good as that of
Petitioner's witnesses.
Additionally, it is important to remember that Mr. Campbell was a
trainee who was being double-checked by Mr. Carsten.

This substantiates

their credibility, for it seems less likely that where one man was doublechecking another, and they both testified that they observed the same thing,
they would observe or testify to something that was incorrect.

1550

I also find that the imminent danger order was properly served upon
Respondent.

I accept the Petitioner's witnesses' testimony on this point,

which similarly was not contradicted by Mr. Reitz.
Turning to the.criteria in Section llO(i) of the Act, I find that the
risk of injury was extremely great.
a 40-degree angle.

The conveyor belt was slippery and on

Had the man slipped and fallen, he probably would have

been seriously injured or killed.

Respondent was negligent because this

situation was within view of its office.

I assess a penalty of $900 for this

violation.
FINDINGS AND DECISION FOR CITATION NO. 328552
Petitioner alleged a violation of the mandatory standard at 30 C.F.R.
§

55.4-4, which reads: "Flammable liquids shall be stored in accordance with

standards of the National Fire Protection Association or other recognized
agencies approved by the Mine Safety and Health Administration.

Small quan-

tities of flammable liquids drawn from storage shall be kept in appropriately
labeled safety cans."
Inspector Carsten testified that when he visited Respondent's facility
on March 13, 1979, he found gasoline being stored in a plastic, one-gallon
milk container. 2/

The container was unmarked, approximately one-half full,

and located on a walk platform near an elevator.

Mr. Carsten testified that

he determined the contents of the container to be gasoline by smelling it.
2/ The parties stipulated that the milk container was not depicted as an
appropriately labeled safety can in the National Fire Protection Association
Handbook.

1551

He stated that there were maintenance men in the area, and that even though
the container was covered, it could have fallen and caused a fire or
explosion.
Mr. Reitz, testifying for Respondent, stated that he had not seen the
container before the inspector showed it to him, and that it was unusual for
gasoline to be on that level; usually oil or diesel fuel would be used there.
He s~ated that people traversed this area about once a day to grease some
bearings.
him.

Mr. Reitz testified that the substance smelled like gasoline to·

Nevertheless, Respondent attempted to argue that the container held

diesel fuel or oil, rather than gasoline.
Based upon the testimony of both Inspector Carsten and Mr. Reitz, I find
that the liquid in the container was gasoline, and that there was a violation
of the standard.

Respondent's negligence was slight. Respondent's employees

apparently were·not in the area very often, and thus would not easily observe
the container.

I find the gravity to be slight, in that a closed container

did not present a great risk of injury.

I assess a penalty of $50 for this

violation.
FINDINGS AND DECISION FOR CITATION NO. 328957
Petitioner alleged a violation of the mandatory standard at 30 C.F.R.
§

55.12-18, which reads:

"Principal power switches shall be labeled to show

which units they control, unless identification can be made readily by
location."

1552

Iver Iverson,~?e~~tjop~r_~s inspector, testified that on March 12, 1979,
while making an inspection, he found a No. 2 dryer control panel with eight
disconnect switches which were not properly labeled.

There was dust covering

some of the switches, and either the labeling could not be seen or was not
legible. 1/
Charles Johnson, the electrical supervisor at Respondent's plant, testified that there was dust on the boxes, and that although the inspector might
not have been able to read them, Johnson could read them.

He stated that

this was an out-of-the-way area, and most people in the area knew how the
boxes were labeled.
I find that the standard was violated as alleged.

I accept the inspec-

tor's testimony that the boxes were not properly labeled to show which units
they controlled.

I f they were labeled, the labeling was illegible.

Although

Mr. Williams or someone who was extremely experienced as an electrician might
have been able to read the labels, I believe that other workers who were in
the area might not have been able to read them.
negligence and the gravity were slight.

I further find that the

Therefore, I assess a penalty of

$45 for this violation.

ORDER
The withdrawal order is AFFIRMED.

Respondent is ORDERED to pay $995 in

penalties within 30 days of the date of this Order.

~·
- ~. &.~ ,;:/:z .
Edwin S. Bernstein
Administrative Law Judge

---

3/ The parties stipulated that the boxes were labeled, but that an issue
remained as to their legibility.

1553

Distribution:
Phyllis K. Caldwell, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Max Brooks, Corporate Manager for Industrial Relations, American Colloid
Company, 5100 Suffield Court, Skokie, IL 60077 (Certified Mail)

1554

FEDERAL MINE ~A_F_ETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Q.1 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 3 JUN 19BO
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. DENV 79-530-PM
A.O. No. 34-00282-05003-I

Petitioner
v.

Marble City Mine
ST. CLAIR LIME COMPANY,
Respondent
DECISION
Appearances:

David S. Jones, Attorney, U.S. Department of Labor, Dallas,
Texas, for the petitioner;
Steven F. Dunlap, Sallisaw, Oklahoma, for the respondent.

Before:

Judge Koutras
Statement of the case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), seeking an assessment of a civil penalty for one alleged violation of the provisions of mandatory safety standard 30 C.F.R. § 57-15-5. The alleged
violation was served on the respondent in a section 104(a) Citation No.
166181, issued by MSHA inspector Russell E. Smith on April 26, 1978.
Respondent filed a timely answer contesting the a~leged violation and
requested a hearing. A hearing was held on April 15, 1980, in_ Ft. Smith,
Arkansas, and the parties appeared and participated fully herein. Posthearing briefs and proposed findings and conclusions were waived by the parties, but they were afforded an opportunity to present oral arguments on
the record at the hearing. Those arguments have been considered by me in
the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 u.s.c. § 801, et~·
2.

Section llO(i) of the 1977 Act, 30 U.S.C. §820(i).

3.

Commission Rules, 29 C.F.R. § 2700.l ~seq.

1555

ISSUES
The principal issue presented in this proceeding is (1) whether respondent has violated the provisions of the Act and implementing regualtions as
alleged in the proposal for assessment of civil penalty filed, and, if so,
(2) the appropriated civil penalty that should be assessed against the
respondent for the alleged violation based upon the criteria set forth in
section llO(i) of the Act. Additional issues raised by the parties are
identified and disposed of where appropriate in the course of this decision.
In determining the amount of a civil penalty assessment, section 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.
DISCUSSION
The section 104(a) citation issued by the inspector in this case
describes the following condition or practice which the inspector believed
constituted a violation of 30 C.F.R. § 57.15-5:
Two men were working from a scaling rig raised 18 feet
from the underground mine floor and were not wearing safety
belts. A large scale was scaled from the rib and hit the
basket breaking it loose from the boom. The men fell from
the basket to the floor.
Petitioner's testimony and evidence.
MSHA supervisory inspector Russell Smith testified as to his mining
background and experience, confirmed that he conducted a mine inspection on
April 25 and 26, 1978, at Respondent's underground limestone mine and he
indicated that the inspection was in conjunction with an accident investigation that he was conducting. Two men were injured when they fell from
a scaling rig basket after it was struck by a falling rock. He issued the
citation in question on April 26, 1978, citing a violation of 30 C.F.R.
§ 57.15-5, after he concluded his investigation of the accident, and he
determined that the two men were not wearing safety belts or using safety
lines as required by the cited safety standard (Tr. 6-16). In his opinion,
had the men been wearing safety belts, they would not have fallen from the
basket when it was struck by the rock. He measured the distance from the
floor of the basket to the railing, and determined that it was 41 inches,
or "waist high" to a 5-foot 7~inch body. A sudden slip or added weight to
the basket would cause it to tip. He believed the men in the basket were
exposed to a falling hazard while they were scaling rock because something
could go wrong with the hydraulic lift device, and any sudden shifting or
slipping while using the scaling bars could cause the basket to tip and
spill the men out of the basket to the mine floor below (Tr. 18-19).

1556

Inspector Sm1th--t-1fafified that during his investigation, he determined that the mining height at the scene of the accident was some 25 feet,
and that the men fell 18 feet from the basket to the floor below. The
maximtun operating height of the scaling rig was 30 feet, and it was designed
so that two men could scale a wall from inside the basket using 7-1/2
foot scaling bars. According to an eyewitness, the two men were reaching
out in a sideway position attempting to scale down a large boulder. While
attempting to position themselves above the boulder, they moved the basket
in front of it so as to obtain better leverage, and the boulder broke and
tilted out "like a falling tree" and caught the bottom edge of the basket
breaking the bolts holding the basket to ~he self-leveling head. This
caused the basket to tip and dtunp the men to the floor below. The men
were wearing hardhats, but his investigation detemined that there were no
safety belts or lines on the scaling rig (Tr. 42, 46-50, 60-70).
Inspector Smith testified that the two men who were injured were the
only two exposed to a hazard, and he believed that the condition cited was
readily observable since the basket was constructed of angle-iron, was
"open", and the men could be observed from the mine floor below (Tr. 19). He
also indicated that the probability of an accident occurring in similar circumstances would depend on the experience of the individuals performing
scaling, and a more experienced miner would have a tendency to be more cautious. In addition, the severity of any injuries would increase in proportion to the height at which scaling is being performed (Tr. 20). Abatement
was achieved within 45 minutes and the respondent installed safety belts
secured to the basket railing by ropes. Respondent also installed a shearpin shaft through the basket self-leveling head which would permit the basket to drop only 6-inches (Tr. 20-21). Photographs of the scaling rig,
including the installation of the shear-pin, were received in evidence
(Exhs. R-1 through R-5).
Respondent's testimony and evidence.
Gary Griffin, testified that he has been employed by the respondent for
13 years as Quality Control Director and Safety Director. He identified the
two employees who were injured when they fell from the scaling basket, and
their employment applications reflect that one of the men was 6 feet tall
and the other 5 feet 9 inches tall. He also identified a sketch of the
aerial basket in question, which includes its dimensions indicating that
it is 60 inches long by 41 inches wide and has a 42-inch height from the
metal floor to the top of the railing which encloses the basket. He also
identified an organizational chart of key mine personnel which reflects that
he is in a staff position reporting directly to the works manager and has no
authority or responsibilities placed upon him by the quarry superintendent
(Tr. 77-79, Exhs. R-10 through R-13).
On cross-examination, Mr. Griffin stated that he has served as quality
control director since 1967 and as safety supervisor since 1971 (Tr. 82).
At the present time he spends about 75 percent of his time on safety
matters. He indicated that the mine has a written safety program and
that safety rules and regulations are issued to new employees and they are
enforced, including employee discharges. He denied that he ever told
Inspector Smith that employees are not safety conscious and that he can

1557

only act in an advisory capacity on matters of safety. However, he conceded
that he cannot tell the works manager what to do on safety matter, but can
only advise him. He utilizes "safety cards" to advise employees about safety
infractions and believes this method to be effective (Tr. 84-89; Exh. R-14).
In response to further questions, Mr. Griffin stated that he is an
MSHA certified safety trainer and that mine management has specifically
given him authority to immediately correct unsafe conditions by shutting
down equipment when he finds such conditions (Tr. 97-98). He also indicated
that when men are scaling the walls they sometimes have to reach out and
around the walls while attempting to position themselves to scale the rocks
(Tr. 101). He believed the accident in question was a "freak" one (Tr. 101).
He stated that he would feel comfortable scaling a 25 foot wall from the
scaling rig without a safety belt because he has no fear of falling from the
basket with the 42 inch high railing and he likened it to walking down a catwalk. He also indicated that he did not want to be strapped to the basket
and would want to be able to get away if it tipped. In his judgement, he
would feel more comfortable in the scaling basket without a safety belt
attached (Tr. 102).
Findings and Conclusions
Fact of Violation
Respondent is charged with a violation of 30 C.F.R. § 57.15-5, which
provides as follows: "Safety belts and lines shall be worn when men work
where there is a danger of falling; a second person shall tend the lifeline
when bins, tanks, or other dangerous areas are entered."
In this case, I believe that it is clear from the evidence adduced that
the two men who were injured as a result of falling from the aerial bucket
· when it was struck by a rock which they were attempting to scale down while
working from the bucket which was raised some 25 feet off the mine floor
were not tied off by any safety lines or belts. It is also clear and without
any doubt that no safety belts or lines were in the bucket for the men to use,
and respondent has presented no testimony or evidence to rebut the findings
of the inspector in support of the citation which he issued. Respondent's
defense to the citation rests on its assertion made at closing arguments
during the hearing that the aerial basket in question was of good design,
and that since its purchase in 1975 it had never been cited before for lack
of safety belts, even though MSHA conducted some 27 inspections at the mine.
Respondent asserted further that the use of safety belts on the scaling rig
increases the likelihood of injuries because in the event of a fall from the
basket the basket itself may fall on the men if they were attached to it by
belts or they could be left dangling in mid-air from the basket. Respondent
also asserted that it exhibited good faith by rapidly installing the belt as
well as a support shaft pin within 45 minutes of the accident and that on
the day of the accident the men were as high as they would ever be in the
mine (Tr. 104-105).
The initial question presented is whether the men who were working in
the aerial bucket suspended above the mine floor were in any danger of
falling. On the facts presented in this case, I believe the q~estion

1558

necessarily must be answered in the affirmative. Although the scaling rig
bucket in question is constructed in such a manner as to afford employees
some protection by means of the railing which encloses them inside the bucket, that railing is only 42 inches high, which is approximately waist high
to one of average height. A description of the scaling process carried on
by two men in such a raised aerial bucket, including the use of scaling bars,
clearly indicates to me that the men performing this work are not always
stationery and merely performing a simple chore such as changing a light
bulb. They are constantly moving about the bucket, leaning over and around
walls and rocks which they are attempting to scale down. In this process,
they. are constantly shifting their weight and position in the bucket while
attempting to best manuever themselves so that proper leverage may be
obtained with their scaling bars, and respondent's own safety director conceded as much during his testimony. In such circumstances, I conclude that
there is always a danger of someone falling from the bucket while leaning
out and shifting his weight, and, as happened in this case, there is always
a danger of a falling rock striking the suspended bucket and causing it to
tip over. I conclude further that the cited standard required that safety
belts or lines be provided and worn by the men while they were performing
such scaling duties from the scaling rig in question. the fact that the
men are not too enchanted with such devices or that the safety director
himself was of the view that he personally feels more comfortable without
a safety belt is irrelevant. Further, I have given little weight to the
safety director's testimony in this regard since there is no evidence that
he performed scaling duties suspended from such a rig and respondent presented no competent testimony or evidence from anyone performing such duties
that the use of safety belts in such situations was in itself a hazard.
Based on the testimony and evidence of record, I am convinced that the use
of safety belts or safety lines on the day in question could have prevented
the two men who were injured from falling out of the bucket to the floor
below after it was struck by the falling rock which they were attempting
to dislodge. Respondent's defense is rejected and the citation is AFFIRMED.
Gravity
In clarifying his prior written inspector's statement concerning the
gravity of the citation in question, Inspector Smith conceded that it was
not likely that two men in question would have been working-higher than
25 feet from the mine floor on the day of the accident, but that in other
areas of the mine where the mining heights reach 30 or 40 feet, any scaling
work being performed at those heights would increase the severity of any
injury resulting from a fall from the scaling rig (Tr. 50-51). HowP.ver,
the fact remains that in this case the two men who.were injured when they
fell from the basket in question received serious injuries. Under the circumstances, I conclude and find that failure to provide safety belts or
lines constitutes a serious violation.
Negligence
Inspector Smith identified Exhibit P-5 as a copy of a previous citation
issued by him at the mine on July 15, 1971, citing the respondent with a violation of sectior 57.15-5 for failure to provide an underground scaling basket with safety belts. Mr. Smith stated that he dis~ussed this prior

1559

citation with sai:ety--s·upervisor Gary Griffin at the conclusion of his April
1978, inspection, and that Mr. Griffin advised him that the men wore safety
belts for awhile, but since they felt the belts impeded their progress while
in the scaling basket they quit wearing them (Tr. 30). Mr. Smith also confirmed that Mr. Griffin was the safety director in 1971 when the previous
citation was issued (Tr. 31).
Inspector Smith identified Exhibit R-6, pg.3, as his inspector's report,
and when asked to explain the circwnstances which led him to state on that
report that "the condition or practice cited could not have been known or
predicted; or occurred due to circwnstances beyond the operator's control,"
he stated that at the time of the 1978 inspection, a new mine superintendent
had been hired and he was not familiar with the safety belt requirements of
section 57.15-5, and was not aware of the previous citation issued in 1971
(Tr. 41-42).
Aside from the question as tb whether the specific scaling rig in question was previously cited for failure to equip it with safety belts, which I
find is not the case here, and aside from the fact that other inspectors may
not have cited the rig in question, which I find is no. defense to the citation, the fact remains that the respondent should have been aware of the
fact that the two men working high above the mine floor from the scaling rig
in question were exposed to a potential falling hazard. It seems obvious to
me that this is not the first time the subject of safety belts on such a rig
has come up at the mine in question. Inspector Smith testified that he discussed a prior citation involving the old rig with safety director Griffin
during the conference held after the citation here in question was issued,"
and Mr. Griffin conceded that the men did not want to wear safety belts
because they felt it restricted their movements. It seems to me that such
decisions should not be left to the workforce or to the judgment of each
individual miner, but rather, to a responsible company safety official.
Once a hazard of falling is identified, 'then I believe it is incwnbent on
a mine operator to insure that safety standards, such as the one in issue
here, are strictly enforced. Under the circwnstances, I conclude and find
that the violation resulted from respondent's failure to exercise reasonable care to prevent the conditions cited and that respondent should have
reasonably known that safety belts and lines were required. Accordingly, I
find that the citation resulted from ordinary negligence by the respondent.
Good Faith Compliance
The evidence establishes, and I find, that the respondent exercised
rapid good faith compliance in correcting the conditions cited and this fact
has been taken into consideration by me in the assessment of the civil penalty in this case.
Size of Business and Effect of Civil Penalty on Respondent's Ability to
Remain in Business.
At the time the citation was issued the underground limestone mine and
associated mill were working two shifts, employing approximately 28 men
on the day shift, and approximately 10 men on the evening shift (Tr. 14).

1560

Quality control <!_irec_!_o.r _Griffin testified that current mine production
is about 1,800 tons
day on a 5-day week and one crushing shift basis
(Tr. 81). Under these circumstances, I conclude that the respondent is
a medium-to-small operator.

a

Respondent stipulated that the assessment of a civil penalty in this
matter will not adversely affect its ability to remain in business (Tr. 106).
History of Prior Violations
Exhibit P-3 is a computer printout itemizing respondent's mine inspection and violation history for the period January 1972 to March, 1980. Exhibit P-4 is a summary of notices and orders issued at respondent's three
mining locations, namely the Sallisaw Lime Plant, and the Marble City Lime
Plant, Mill and quarry (Tr. 26-27). That summary reflects that since the
passage of the 1977 Act, 64 citations were issued at, and charged to, respondent's Marble City Lime Plant and quarry (Tr. 28). ·Although Inspector Smith
alluded to the fact that he had issued a prior citation in 1971 at the mine
citing section 57.15-5 for failure to have safety belts on a scaling rig,
he was not sure whether this citation was for "the old scaling rig" or the
one he cited in 1978 (Tr. 35-36). However, he further clarified his position by specifically stating that the '~new scaling rig," that is, the one
which he issued Citation No. 0166181 against, was only previously cited for
a violation of section 57.9-2, for failure to have additional counterbalance
weights, and that it had never been cited for lack of safety belts (Tr. 51).
Further, after reviewing previous inspection reports produced by the respondent (Exhs. R-7, R-8, and R-9), he conceded that the "old" scaling rig
was removed from the mine sometime during December 1975 (Tr. 52-54
Respondent' history of prior viola.tions includes a number of citations
issued under the now repealed Federal Metal and Nonmetallic Mine Safety Act,
and I take note of the fact that under that law, no civil monetary penalty
assessments were levied against mine operators for infractions of mandatory
safety standards. Although the language of section llO(i) of the 1977 Act
simply refers to "history of previous violations" as one of the six statutory criteria to be considered in assessing penalties, without regard to
whether civil penalties were assessed, the former Interior Board of Mine
Operations Appeals has consistently held that "prior history" means all violations which have been assessed against and paid by a mine-·operator, and
section 110.3(a), of Part 100, Title 30, Code of Federal Regulations, petitioner's assessment regulations, treats "prior history" in terms of assessed
violations.
In this case, the citation which issued on April 26, 1978, was issued
a little over a month after the effective date of the 1977 Act on March 9,
1978, and according to the computer printout, this appears to be the first
citation issued after the new Act became effective. However, I cannot overlook the fact that the respondent's history of prior violations, are reflected by Exhibits P-3 and P-4, for an operation of its size and scope, is not
particularly good, and I have considered respondent's total prior history
as reflected in these exhibits in assessing the civil penalty in this
matter.

1561

Penalty Assessment
On the basis of the foregoing findings and conclusions made in this proceeding, including consideration of the six statutory criteria set forth in
section llO(i) of the Act, I find that a civil penalty assessment in the
amount of $1,200 is appropriate in this case for a violation of 30 C.F.R.
§ S7.1S-S, as stated in Citation No. 166181, issued on April 26, 1978.

Order
Respondent is ORDERED to pay the civil penalty assessed by me in this
matter, in the amount of $1,200 within thirty (30) days of the date of this
decision.

Law Judge
Distribution:
David s. Jones, Esq., U.S. Department of Labor, Office of the Solicitor,
SSS Griffin Square, Suite SOl, Dallas TX 7S202 (Certified Mail)
S. F. Dunlap, General Manager, St. Clair Lime Co., P.O. Box S69,
Sallisaw, OK 749SS (Certified Mail)

1562

FEDERALMINE-SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLF·AX AVENUE
DENVER, COLORADO 80204

HARRISON-PELTRON, A Joint Venture,
Applicant,

v.
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),

)
)
)
)
)
)
)
)
)
)
)

JUN 1980
APPLICATION FOR REVIEW
DOCKET NO. WEST 80-121-R
ORDER NO. 387143
MINE:

NEWLIN CREEK

Respondent.
~~~~~~~~~~~~~~~~~~-)

DECISION
Appearances:
Phyllis K. Caldwell, Esq., Office of the Solicitor, United States Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294,
for the Respondent.
Darrel J. Skelton, Esq., 4380 Harlan, Wheatridge, Colorado, 80033,
for the Applicant.
Richard L. Fanyo, Esq., 1100 United Bank Center, Denver, Colorado 80290,
for the Applicant.
Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

This proceeding was filed by the Applicant pursuant to section 107(e) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

et~

(1978) [here-

inafter cited as "the Act" or "the 1977 Act"], seeking review of an order of
withdrawal issued by the Respondent pursuant to section 107(a).

*

* Section 107(a) of the 1977 Act, 30 U.S.C. § 817(a), reads:
"If, upon any inspection or investigation of a coal or other mine
which is subject to this Act, an authorized respresentative 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),

1563

In accordance with a stipulated motion to expedite and pursuant to notice,
a formal hearing was held in Littleton, Colorado, on February 26, 27 and 28, 1980.
The filing of the transcript, post hearing briefs and reply briefs was completed
on April 23, 1980.
By his withdrawal order, the Respondent alleges that on November 15, 1980, an
imminent danger existed in four areas of Applicant's mine due to the condition of
the roof.

The Applicant alleges that no imminent danger existed on November 15,

1979, and that the withdrawal o~der should be vacated.
ISSUE
The sole issue presented for determination is whether on November 15, 1979,
an imminent danger existed as a result of roof conditions in the four cited areas
of Applicant's Newlin Creek Mine.
GOVERNING PRICIPLES
Imminent danger is defined as" •.• 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."

Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. § 3(j) (1976), as amended, 30 U.S.C.
§

802(b)(4)(1978).

The test of imminence is objective and the inspector's

subjective opinion need not be taken at face value.
Interior Board of Mine Operations Appeals,

Freeman Coal Mining Company v.

504 F. 2d 741 (Tth Cir. 1974).

The Applicant has the burden of proof in a proceeding involving an imminent
danger order.

Thus, the Applicant must show by a pronderance of the evidence that

Footnote Continued from Page 1.
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."

1564

an imminent danger did not exist.

Lucas Coal Company, 1 IBMA 138 (1972).

Since

withdrawal orders are "sanctions" within the meaning of Section 7(d) of the
Administrative Procedur~ Act, 5 U.S.C. § 556(d) (1970), and may be imposed only
if the government produces reliable, probative and substantial evidence which
establishes a prima facie case, MSHA must bear the burden of establishing a prima
facie case.

Lucas Coal Company, supra, Carbon Fuel Company, 2 IBMA 42 (1973),

Freeman Coal Mining Company, supra.
EVALUATION OF THE EVIDENCE
AND FINDINGS OF FACT
Respondent's witness, a MSHA inspector, issued the contest~d withdrawal
order on November 15, 1979, citing the following four areas of Applicant's mine:
(1)

The No. l entry, from the 1st crosscut inby the portal to and
including the 2nd crosscut for a distance of 165 feet.

(2)

The No. l entry from the 8th crosscut to the face and including
the connecting crosscuts, a distance of 200 feet.

(3)

The No. 2 belt entry from the No. 8 crosscut to the face and
including crosscuts, for a distance of 200 feet.

(4)

The No. 3 intake entry from the portal to the face of the
No. 3 entry and crosscuts for a distance of 1,360 feet.

To summarize the testimony of the MSHA inspector, generally, he observed
loose, unsupported, cracked, drummy and separated roof in the cited areas, and,
in the No. 1 entry from the 8th to the 9th crosscut, for a distance of 65 feet,
he observed excessive widths measuring from 20 to 28 feet.

The inspector had

been in the mine the day before, on November 14, 1979, but did not notice any
condition in the mine that would constitute an imminent danger.
Although subsequent modifications of the withdrawal order were made on
November 27 and 29, 1979, the order was not terminated until December 10, 1979.
Applicant did not conduct normal coal mining operations from November 15, 1979,
to December 10, 1979.

(TR. 425).

1565

The immediate roof of the mine consisted of laminated shale of variable thicknesses.

The ultimate roof of the mine was sandstone.

(TR. 220-221).

The mining

sequence carried out by Respondent attempted to remove any of the immediate shale
roof which might eventually fall.
Applicant's witnesses, including an independent expert witness who was a mining
engineer and who first visited the mine on November 19, 1979, generally testified
that some areas of the roof were loose, drummy or era.eked, but that no imminent
danger existed as to the condition of the roof due to the mining sequence which
Applicant followed.

The engineeer stated that after the continuous mining machine

makes a cut (first approximately 8 feet along the left rib and then 8 feet along the
right rib, each time backing out) the shale roof is allowed to fall or is cut down
with the continuous miner.
barred down.

If it is necessary, safety posts are set and the roof is

(TR. 217).

The mine inspector observed that workmen were scaling the top down when he made
his inspection on November· 15, 1979.

(TR. 35).

The mining engineer noticed that

there was evidence of barring down throughout the mine.

(TR. 218).

Thus, as part

of the mining sequence, miners were following practices to remedy the condition of
the roof before other mine personnel began working under the roof.

(TR. 177).

Although the mining engineer who testified for the Applicant did not inspect
the mine until November 19, 1979, I conclude that the condition of the roof had not
improved since the date of the closure order on November 15, 1979.
still closed due to the outstanding withdrawal order.
in an effort to have the order terminated.

The mine was

Some roof work was going on

However, the mining engineer and several

employees of Applicant testified that because they did not know why the imminent
danger order issued, or what constituted the imminent danger, they found it
difficult to abate the withdrawal order.

1566

(TR. 241, 366, 367, 389, 419):

The engineer inspected the two areas that were observed by the MSHA inspector
as being overwide.

Both areas had been timbered to proper widths with an extra

row of timbers between the outer row and the rib.

These timbers had been installed

for some time as concluded from the observation of rock dust which had accumulated
on them and from the observation that they were providing adequate support.

(TR. 208,

211, 212).
There was evidence that the crack located in the roof of entry No. 2, beyond
the 8th crosscut, was of long duration due to the accumulation of mud and iron
stains in the chink.

(TR. 213-214).

There was no evidence that the roof would fall

before the condition could be abated in this area.
The entire No. 3 entry was included in the order, a distance of 1,360 feet.
It is difficult to comprehend how there could be no imminent danger in this area on
November 14, 1979, and yet the next day, on November 15, 1979, the roof for the
entire length of the entry was ready to fall.

It is equally difficult to compre-

hend why a MSHA inspector and mining personnel of Applicant would walk through all
three mine entries numerous times inspecting, and while the imminent danger order
was still in effect, (TR. 142, 436), if the roof was "ready to cave in".
" ..• [E]very roof condition is not an imminent danger."

(TR. 40).

Consolidation Coal Company

v. Secretary of Labor, Mine Safety and Health Administration (MSHA), (Docket No. PENN
79-72, October 25, 1979) qt 1692.
The mining engineer concluded that the roof consisted of competent sandstone.
(TR. 264, 265).

He testified that he found some pockets of shale which were

drummy, loose or sagging slightly due to air slacking, but none which he considered
to be an imminent danger because of the utilization of constant surveillance and
the practice of barring down.

(TR. 275, 313, 217, 218).

After an inspection on December 10, 1979, another MSHA inspector allowed the
mine to reopen, but stated there would have to be a new roof control plan before
the abatement was complete.

(TR. 434).

1567

All personnel intimately involved with the day to day operation of the mine
agreed with the mining engineer that, although some isolated patches of shale may
have been loose or drummy, no imminent danger existed in the mine on November 15,
1979.

Likewise, attempts to support the shale were both futile and less safe

than taking it down.

These mine personnel included the manager, (TR. 411, 438),

the mine superintendent, (TR. 364, 365), the swing shift foreman, (TR. 180, 182,
194), and the mine foreman.

(TR. 334).

The mine foreman also testified that after

the closure order was issued more roof bolting took place than before, but he did
not believe it added anything to the safety of the mine.

(TR. 333).

Apparently,

the roof bolting was being done to assist in abatement of .the order.
What is crucial in determining whether an imminent danger existed on
November 15, 1979, is the time element.

That is, whether the cited condition could

be abated before the reasonable expectation of death or serious physical harm could
occur.

It may be that a different roof control plan would be more effective in

controlling the potential risk of a roof fall in the mine, but that is not
determinative in this imminent danger proceeding; time is.
The MSHA inspector who issued the order had been in the mine only once before
November 14, 1979.

His testimony is not as persuasive as the operator's witnesses,

who possessed a far greater familiarity and knowledge of the area and the day to
day condition of the roof.

The continuous vigilence and mining sequence practiced

by the operator allowed Applicant to abate any dangerous roof condition before
death or serious physical harm might reasonably be expected to occur.
CONCLUSIONS OF LAW
1.

The Applicant and its Newlin Creek Mine are subject to the provisions of

the Federal Mine Safety and Health Act of 1977.
2.

The undersigned Administrative Law Judge has jurisdiction over the subject

matter and parties to this proceeding.

1568

3.

The Applicant has sustained its burden of proof to a preponderance of

the evidence that an innninent danger did not exist in its Newlin Creek Mine on
November 15, 1979.
4.

The withdrawal o.rder should be vacated.
ORDER

Accordingly, Withdrawal Order No. 387143 is hereby VACATED.

~~.
{7 ·
j.Jon D. Bol~

v Administrative Law Judge
Distribution:

Phyllis K. Caldwell, Esq., Office of the Solicitor, United States Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Darrel J. Skelton, Esq., 4380 Harlan, Wheatridge, Colorado, 80033
Richard L. Fanyo, Esq., 1100 United Bank Center, Denver, Colorado 80290

1569

FEDERAL MJNE SAfJ:TY AND HEALTH REVIEW COMMISSION
333 W. Ct tU l\Y AVENUE
DENVER. COLOllADO 80204

2 4 JUN 1980
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,

v.
KINCHELOE AND SONS, INC. ,

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-377-M
A/O NO. 35-01003-05001
MINE:

KINCHELOE QUARRY

Respondent.
~~~~~~~~~~~~~~~~~~->
Appearances:

Judith Vogel, Esq., Office of the Solicitor, United States Department of
Labor, 11071 Federal Building, Box 36017, 450 Golden Gate Avenue,
San Francisco, California 94102
for the Petitioner,
Mr. Mickey Kincheloe, Vice President, Kincheloe and Sons, Inc., P. 0. Box 296,
Myrtle Point, Oregon 07458
for the Respondent.
Before:

Judge Virgil E. Vail
DECISION

The above-captioned civil penalty proceeding was brought pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a).
Pursuant to notice, a hearing was held in Eugene, Oregon, on April 10, 1980.
The petitioner alleges that respondent violated mandatory safety standard
30 CFR 56.14-1 by failing to guard two conveyor self-cleaning tail pulleys on its
premises. l/

The burden, therefore, is on the petitioner to show by a preponderanc

of the evidence that the unguarded machines created a safety risk to miners.

1/

56.14-1

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

1570

The testimony of-George A. Gipson, mine inspector for MSHA shows that the selfcleaning tail pulleys under the cone conveyor and under the bunker conveyor were
unguarded.

The facts are uncontroverted that said pulleys are both approximately

12 to 14 inches above ground level.

Photographs taken by the r.espondent and admitted

in evidence show that said pulleys involved herein are indeed only 12 to 14 inches
off the ground and located within the frame-work of the conveyors (Exhibits R-1, R-2
and R-6).

The petitioner argues that, because these are self-cleaning pulleys with

blades on them, they are more hazardous than normal pulleys, for clothing can get
caught in the blades dragging employees into the pinch points of the pulleys.

Con-

ceding that this is a possibility, the facts do not indicate-that the location and
height of the pulleys make such an occurrence likely.

The standard requires guarding

pulleys where they may be contacted by persons and may cause injury, but it seems
highly unlikely in these two situations that a person would contact these pulleys
or be injured by them.
In both cases, the petitioner failed to satisfy the burden of showing that a
safety risk existed; rather, the facts support the respondent's position that
the likelihood of an injury occurring was remote.
Therefore, it is Ordered that both citations are hereby vacated.

Law Judge
Distribution:
Mr. Mickey Kincheloe, Vice President, Kincheloe and Sons, Inc., P. 0. Box 296,
Myrtle Point, Oregon 07458
Judith Vogel, Esq., Office of the Solicitor, United States Department of Labor,
11071 Federal Building, Box 36017, 450 Golden Gate Avenue, San Francisco,
California 94102

1571

---·

-

--

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, COLORADO 80204

2. 4 JUN 1980
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION. (MSHA),
Petitioner,

v.
MORTON BROTHERS,

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-3-M
A/O NO. 29-01580-05001
MINE:

DONNA MOUNTAIN

Respondent.
~~~~~~~~~~~~~~~~~~-)

DECISION AND ORDER
Appearances:
Robert L. Sims, Esq., Office of the Solicitor, United States Department of
Labor, Suite 501, 555 Griffin Square Building, Dallas, Texas 75202
for Petitioner
Wayne E. Bingham, Esq., PICKERING AND BINGHAM, 920 Ortiz, N.E., Albuquerque,
New Mexico 87108
for Respondent
Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

This proceeding arose through initiation of an enforcement action brought
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977.
30 U.S.C. § 801 ~ ~· (1978) [hereinafter cited as "the 1977 Act" or "the Act"].
The matter came on for hearing, pursuant to notice, on May 13, 1980, in Albuquerque,
New Mexico.

Prior to hearing, the parties entered into a settlement agreement

based upon stipulations.

At the hearing, the parties read the stipulations into

the record and moved for approval of the settlement agreement.

I granted the

motion from the bench and this Decision and Order is issued to affirm my prior
bench decision.

1572

DISCUSSION
In support of the proposed settlement the parties have taken into account,
and submitted information concerning, the six statutory criteria set forth in
section llO(i) of the Act.*
From the record, it appears that Respondent operates a nonmetallic open pit
mine.

In the year preceding the date of inspection, 5,255 production tons were

mined at this particular mine.
11,179 production tons per year.

The production of the controlling company is
The record further discloses that Respondent

does not have a history of previous violations.

Additionally, the parties have

stipulated that payment of the proposed penalties, or of the settlement figures,
will not adversely affect the operator's ability to continue in business.
Citation No. 161094
This citation alleges a violation of 30 CFR § 55.11-12.

That standard governs

travelways and includes the mandate that openings near travelways through which
men or materials may fall shall be protected.

The citation alleges that such an

opening, where a person could fall into a jaw crusher, was not protected.

The

parties stipulate that ordinary negligence on the part of the operator occasioned
a potentially fatal hazard.

The Secretary proposes that a penalty of $30 be

assessed, reduced from $38, based upon the extraordinary good faith demonstrated
by Respondent in correcting the cited condition.

*Section llO(i) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(i), reads in pertinent part:
"* * * 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 a'chieve rapid compliance after notification of a
violation. * * * "

1573

Citation No. 161095
This citation alleges a violation of 30 CFR § 55.12-08.

That standard governs

electricity and includes the mandate that power wires shall be insulated adequately
where they pass into or out of electrical compartments and that the holes shall be
substantially bushed with insulated bushings.

The citation alleges that energized

power wires entering a certain motor were not passing through insulated bushings.
The parties stipulate that ordinary negligence on the part of the operator occasioned
a potentially debilitating hazard.

The Secretary proposes that a penalty of $21 be

assessed, reduced from $26, based upon the good faith demonstrated by Respondent in
correcting the cited condition.
Citation No. 161096
This citation alleges a violation of 30 CFR § 55.9-87.

That standard governs

loading, hauling and dumping and includes the mandate that heavy duty mobile equipment shall be provided with audible warning devices and that where the operator has
an obstructed view to the rear, the equipment shall have either an automatic reverse
signal alarm or an observer to direct travel.

The citation alleges that a certain

front end loader, from which the operator had a partially obstructed view to the
rear, was not equipped with an automatic reverse signal alarm or an observer to
direct travel.

The parties stipulate that ordinary negligen~e on the part of the

operator occasioned a potentially debilitating hazard.

The Secretary proposes that

a penalty of $30 be assessed, reduced from $40, based upon the good faith demonstrated
by Respondent in correcting the cited condition.
Citation No. 161097
This citation alleges a violation of 30 CFR § 55.18-12.

That standard governs

safety programs and includes the mandate that emergency telephone numbers shall be
posted at appropriate telephones.

The Petitioner believes that this citation was

not properly cited, based upon the facts available at the time of the inspection,

1574

and moves for permission to withdraw this citation.
Citation No. 161111
This citation alleges a violation of 30 CFR § 55.5-50(b).

That standard governs

physical agents and includes the mandate that noise exposures in excess of specified
limits shall be controlled by feasible administrative or engineering controls.

The

citation alleges that noise dosimeter readings in excess of the specified limits
were not controlled by feasible administrative or engineering controls.

The parties

stipulate that ordinary negligence on the part of the operator occasioned a patentially permanent and disabling hazard.

The Secretary proposes that a penalty of $30

be assessed, reduced from $34, based upon the good faith demonstrated by Respondent
in Correcting the cited condition.
After careful review and consideration of the argument in support of the proposed
settlement, and taking into account thos.e factors required to be considered by
section llO(i) of the Act, I conclude and find that the proposed settlement should be
approved.
ORDER
Accordingly, the motion for approval of the settlement agreement granted from
the bench is hereby AFFIRMED.

It is ORDERED that Respondent shall pay the affirmed

penalty of $111 within thirty days of the date of this Decision and Order.

0n D. Bo:ttz,.. · (

Administrative Law Judge

Distribution:
Robert L. Sims, Esq., Office of the Solicitor, United States Department of
Labor, Suite 501, 555 Griffin Square Building, Dallas, Texas 75202
Wayne E. Bingham, Esq., PICKERING Ai.~D BINGHAM, 920 Ortiz, N.E., Albuquerque,
New Mexico 87108

1575

FEDERAL MINE-SA-FETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6225

2 4 JUN 19BO
SECRETARY OF LABOR,
HINE SAFETY At'l'D HEAL TH
ADMINISTRATION (MSHA),

Civil Penalty Proceerlings
Petitioner

v.

Docket No. UEVA 80-40
A/O No. 46-02843-03025
Madison Hine No. 1

KANAWHA COAL COMPANY,
Respondent

Docket No. WEVA 80-78
A/O No. 46-028lt4~03016
Docket No. WEVA 80-83
A/0 No. 46-02844-03017
Madison Mine No. 2

DECISION
Appearances:

Barbara Krause Kaufmann, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Harold s. Albertson, Jr., Esq., Hall, Albertson and Jones,
Charleston, West Virginia, for Respondent.

Before:

Judge Edwin s. Bernstein
PRELIMINARY STATEUENT

Pursuant to Commission Rule 64, 29 C.F.R. § 2700.64, the parties each
moved for summary decision J:../ with respect to Citation No. 09911015 (Docket
No. WEVA 80-40), Citation No. 09911086 (Docket No. WEVA 80-78), and Citation

±J Rule 64 provides in part as follows:
"(b) Grounds. A motion for summary decision shall be granted only if
the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits shows: (1) that there is no genuine
issue as to any material fact; and (2) that the moving party is entitled
to summary decision as a matter of law."

1576

No. 09911223 (Docket No~· WEV-A 80-83). ]j

The MSHA Assessment Office recom-

mended that penalties of $305, $160, and $195, respectively, be assessed for
alleged violations of 30 C.F.R. § 70.lOO(b).

That mandatory health standard

reads:
Effective December 30, 1972, each operator shall continuously maintain the average concentration of respirable
dust in the mine atmosphere during each shift to which each
miner in the active workings of such mine is exposed at or
below 2.0 milligrams of respirable dust per cubic meter of
air.
Respondent argued that there is no valid and enforceable standard under
the Federal Mine Safety and Health Act of 1977 (the 1977 Act).

Petitioner

argued that a valid respirable dust standard exists, and that based upon the
stipulated facts, Respondent violated 30 C.F.R. § 70.lOO(b).
APPLICABLE STATUTES AND REGULATIONS
Section 202(e) of the Federal Coal Mine Health and Safety Act of 1969
(the 1969 Act) provided, prior to amendment:
References to concentrations of respirable dust in this
title means the average concentration of respirable dust if
measured with an HRE instrument or such equivalent concentrations if measured with another device approved by the Secretary and the Secretary of Health, Education, and Welfare.
As used in this title, the term "MRE instrument" means the
gravimetric dust sampler with four channel horizontal
elutriator developed by the Mining Research Establishment of
the National Coal Board, London, England.

2_/ On March 31, 1980, I issued an order which approved settlement motions
for Citation No. 09911054 (Docket No. WEVA 80-78) and Citation No. 09910793
(Docket No. l-illVA 80-83). Thus, the three citations listed above are the
only ones which remain to be decided in these cases.

1577

Section 318(k) of the 1969 Act provided, prior to amendment:
For the purpose of this title and title II of this Act,
the term -

*

*

*

*

*

*

*

(k) "respirable dust" means only dust particulates 5 microns
or less in size * * *·
Section 202 of the Federal Hine Safety and Health &-nendments Act of 1977
(the Amendments Act) reads:
(a) Section 202(e) of the Federal Coal Mine Health and
Safety Act of 1969 is amended to read as follows:
"(e) References to concentratio"tts of respirable dust in
this title mean the average concentration of respirable dust
measured with a device approved by the Secretary and the
Secretary of Health, Education, and Welfare."
(b) Section 318(k) of the Federal Coal Mine Health and Safety
Act of 1969 is repealed.
Section 30l(c)(2) of the Amendments Act reads:
All orders, decisions, determinations, rules, regulations, permits, contracts, certificates, licenses, and
privileges (A) which have been issued, made, granted, or
allowed to become effective in the exercise of functions
which are transferred under this section by any department
or agency, any functions of which are transferred by this
section, and (B) which are in effect at the time this-section takes effect, shall continue in effect according to
their terms until modified, terminated, superseded, set
aside, revoked, or repealed by the Secretary of Labor, the
Federal Hine Safety and Health Review Commission or other
authorized officials, by any court of competent jurisdiction,
or by operation of law.
Section 307 of the Amendments Act reads, in pertinent part:
Except as otherwise provided, this Act and the amendments made by this Act shall take effect 120 days after the

1578

date of enactment of this Act. * * * The amendment to the
Federal Coai. Mine 1lealth and Safety Act of 1969 made by
section 202 of this Act shall be effective on the date of
enactment.
Section 202(b)(2) of the 1977 Act reads:
Effective three years after the date of enactment of
[the 1969] Act·, each operator shall continuously maintain
the average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the
active workings of such mine is exposed at or below
2.0 milligrams of respi~able dust per cubic meter of air.
30 C.F.R. § 70.lOO(b) reads:
Effective December 30, 1972, each operator shall continuously maintain the average concentration of respirable
dust in the mine atmosphere during each shift to which each
miner in the active workings of such mine is exposed at or
below 2.0 milligrams of respirable dust per cubic meter of
air.
FINDINGS OF FACT
The parties stipulated and I find:
1.

Respondent, Kanawha Coal Company, is subject to the jurisdiction of

the 1977 Act and I have jurisdiction over these proceedings.
2.

The inspector who issued the citations is a duly authorized repre-

sentative of the Secretary of Labor and properly served the citations upon
Respondent.
3.

Respondent mines 974,127 tons per year.

4.

Any negligence by Respondent in co.nnection with these citations

constitutes ordinary negligence.

1579

5.

Payment of an appropriate penalty will not affect Respondent's

ability to continue in business.
6.

Respondent exercised good faith in abating all citations within the

time set for abatement, or a reasonable time thereafter.
7.

The number of violations assessed against Respondent during the

24-month period prior to issuance of each citation was 155 for Citation
No. 9911086, 153 for Citation No. 9911223, and 276 for Citation No. 9911015.
8.

The possible occurrence which could reasonably be expected is lost

work days if exposure continued to exce~d the statutory maximum of
2.0 milligrams per cubic meter of air, or if such overexposure frequently
recurred.
9.

The number of samples taken pursuant to 30 c.F.R. § 70.lOO(b)

and cumulative concentration of respirable dust found with respect to
each citation are:
Citation No.
9911086
9911223
9911015
10.
§

10
7
10

24.9
24.5
25.7

Pursuant to Section 202(b)(2) of the 1977 Act and 30 C.F.R.

70.lOO(b), the maximum allowable concentration of respirable dust in the

mine atmosphere during each shift to which each miner can be exposed is
2.0 milligrams per cubic meter of air.

1580

11.

Respi_rabJ_e_.dusLis defined in Section 202(e) of the 1977 Act to

mean the average concentration of respirable dust measured with a device
approved by the Secretaries. '}_/
12.

Provisions for approval of sampling devices are contained in

30 C.F.R. Part 74.

At the time these citations were issued, devices were

jointly approved by the National Institute for Occupational Safety and
Health (NIOSH) (Department of Health, Education, and Welfare) and MSHA
(Department of Labor).

Before 1977, devices were approved by NIOSH and

the Hining Enforcement and Safety Administration (MESA) (Department of
the Interior).
13.

Applications for approval of sampling devices are submitted to

NIOSH for testing to determine if the performance standards set forth in
30 C.F.R. Part 74 are met.

Applications for approval of the pump unit of

a sampling device are submitted to MSHA.

MSHA determines whether the pump

unit is intrinsically safe in accordance with 30 C.F.R. § 18.68.

After

testing procedures, NIOSH may issue an approval for the sampling unit if
HSHA has approved the pump unit of the device.
14.

The respirable dust samples upon which all cita~ions were based

were taken with a Bendix Environmental Science Division Micron Air II
permissible air sampling pump, Model No. 2417504-0001, which was approved
by MESA as No. 2F-2120-0 on September 5, 1967.

This approval was issued

to Union Industrial Equipment Corporation (UNICO) and was extended by
MESA as follows:

~Th;-~e-a1~"i-ng -;f-the term "Secretaries" is at issue and thus was not
defined in the stipulations.

1581

September 30, 1969
March 6-,- 1970· -- -April 21, 1970
January 17, 1972

2F-2120-l
2F-2120-2
2F-2120-3
2F-2120-4

July 24, 1974

2F-2120-5

August 2, 1974
January 17, 1975

2F-2120-6
2F-2120-7

(UNI CO)
(UNICO)
(UNICO)
(To Bendix Corporation,
which bought the rights
from UNICO)
(internal modification
to MESA)
(Bendix)
(Bendix)

NIOSH initially approved the device as TC No. 74-018 micron air on April 16,
1975, revocation November 22, 1976, certification reissued Hay 20, 1977
under TC No~ 74-025 micron air II.
I further find that the citations were issued on the following dates
based upon respirable dust samples collec.ted during the following time
periods:

Citation No.

Citation Date

Time Period When
Samples Were Taken

9911086
9911223
99ll015

June 28, 1979
August 9, 1979
May 24, 1979

March 2-June 13, 1979
July 17-23, 1979
May 1-10, 1979

PRIOR LEGISLATIVE AND JUDICIAL BACKGROUND
The 1969 Act contained two definitions of respirable dust.

Section

202(e) stated:
References to concentrations of respirable dust in this
title means the average concentration of respirable dust if
measured with an l'1RE instrument or such equivalent concentrations if measured with another.device approved by the
Secretary and the Secretary of Health, Education, and Welfare
* * *. !!_/

4j Section 3Taf_o_f_t-heT969 Act defined "Secretary" as "the Secretary of
the Interior or his delegate."

1582

Section 318(k) of the 1969 Act stated, "'respirable dust' means only
dust particulates 5 microns or less in size** *·".
In Eastern Associated Coal CorporatioJ!_, Docket No. MORG 73-131-P et al.
(December 16, 1974), the contractor challenged the dust program which had
come into being under t'he 1969 Act on the ground that the statutory definitions were inconsistent.

Eastern claimed that the I.fRE instrument and other

instruments approved by the Secretaries and used as a basis for such citations did not screen out particulates larger than five microns in size.

Judge

Moore agreed and vacatecl t'he citations based upon his finding "that the
instruments do collect particles larger than the statutory definition of
respirable dust."
On appeal, t;ie Interior Board of Hine Operations Appeals (IBMA) first
reversed Judge Moore's decision (see 5 IBMA 185 (1975)), but then affirmed
it upon reconsideration (see 7 IBMA 14 (1976)).

The decision applied to

the MRE instrument as well as two personal samplers approved by the
two Secretaries. :J../
The Board stated:

The Board-~;t-ed-tl;;r_-,--. 1[~nder section 202(e), the Congress approved
the MRE instrument as a device for sampling dust, but the MRE is a large,
bulky instrument, and on March 11, 1970, the two Secretaries approved
usage of alternative personal sampler units conforming to requirements
and conditions now codified at 30 CFR Part 74." 7 IBMA at 28. In
describing the personal air sampler, the Board continued: "This device
is a unit which is purchased by an operator and worn by the individual
miner. Each device is supposed to duplicate the behavior of the human
respiratory system which draws in air, filters larger particulates,
and allows others to reach the lungs. Air is drawn into a sampler by a
pump and battery-driven motor. It passes through a nylon cyclone 10 ro.m.
in diameter which is supposed to separate the respirable from the nonrespirable particulates." Id. at 30.

?_/

1583

On the basis of the record as described above, we find
that MESA has--been-systeraatically ignoring the legislative
definition of the term "resplrable dust" as meanine "* * *
only dust particulates 5 microns or less in size." * * *
[I]t follows that the data memorialized in these notices,
purporting to show alleged concentrations of "respirable
dust," represent as well the weight of some particulates
which are oversize if the legislative 5-micron definition
is applicable. [Emphasis by the Board.]
7 IBMA at 34.

The Eastern Associated decision prompted quick congressional action.
Section 202 of the Amendments Act of 1977 repealed the five-inicron definition
and rewrote Section 202(e) of the 1969 Act to define respirable dust as
"the average concentration of respirable dust measured with a device approved
by the Secretary and the Secretary of Health, Education, and Welfare."
The Senate Report on the 1977 Act contained the following explanation
of these changes:
Respirable Dust
Section 318 of the Federal Coal Hine Health and Safety
Act of 1969 is amended by deleting subsection (k) which
defines respirable dust in terms of dust particles 5 microns
or less in size. The new definition in subsection (e)
defines respirable dust in terms of average concentration,
a method of determining the amount of dust in a mine atmosphere on the basis of weight. Since all devices approved by
the Secretary and the Secretary of Health, Education and
Welfare measure respirable dust on the basis of weight,
arther [sic] than particle s.ize, this amendment is necessary
to make the definition of respirable dust conform to the
approved method of sampling.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 51 (1977), reprinted }n Legislative
History of the Federal Mine Safety and Health Act of 1977 639 (1978).

1584

DECISION
The pivotal issue in this case involves the interpretation of
Section 202(e), as amended.

The statute defines respirable dust as

dust measured by "a device approved by the Secretary and the Secretary
of Health, Education, and Welfare."

If this phrase is read as ineaning

"a device to be approved by the Secretary of Labor and the Secretary
of Health, Education, and Welfare subsequent to the effective date of
this section," the citations must be vacated.

This is because there

were no s11ch approvals as of the dates the citations were issued.

On

the other hand, if the statute means "a device approved since the effective date of the 1969 Act by the Secretary of the Interior and the
Secretary of Health, Education, and Welfare," the citations must be
affirmed.
Respondent's ;irgument is based upon three recent clecisions in which
Judge Moore concluded that, "there is not and never has been a valid
enforceable respirable dust program * * *·"

MSHA v. Olga ~~?_1:__~~·, Docket

No. HOPE 79-113-P (June 28, 1979); MSHA v. B.B.W Coal Co., Docket No.
PIKE 76-149-P (January 9, 1979); and MSHA v. Alabama ~-:_~oJ~~~~, Docket
No. SE 79-110 (February 12, 1980).
In Olga and B.B.W., Judge Moore held:

"As far as I have been able

to determine, the Secretary of Labor has not joined the Secretary of
Health, Education and Welfare in approving devices for the collection
of respirable dust.

If that is true, there has been no effective standard

1585

since Noveraber 9, 1977."

!!._/ While I have great respect for Judge Hoore,

an able and articulate judge, I respectfully disagree with his conclusions
on this issue.

]_/

It is a fundanental rule of statutory construction that a statute
should not be interpreted to defeat its obvious intent.

In Wilson v. United

States, 369 F.2d 198, 201 (D.C. Cir. 1966), the court state<l, "[t]he literal
1:i.eaning of a statute cannot he followed where it leads to a result contrary
to legislative intention as revealed by the legislative history or other
appropriate sources."

In Perry v. Corn.rnerce_I:o_a_n__c._o_fl!.Pan_l, 383 U.S. 392, 400

(1966), the Supreme Court stated:

"Frequently,

* * * even when the plain

meaning did not produce abs11rd results but merely ari unreasonable one
'plainly at variance with the policy of the legislation as a whole' this
Court has followed that purpose, rather than the literal words."

This

cannon of statutory interpretation has even been applied in criminal cases.
In United _~t_a_t_e_~ v. _Braverman_, 373 U.S. 405, L108 (1963), the Supreme
Court stated:

"Ue have considered the statute before 11s in light of the

salutary r11le that criminal statutes should not by interpretation be
expanded beyond their plain language.

But neither can we interpret a

statute so narrowly as to defeat its obvious intent."

6/-Th;-c;;-~{ssion granted the Secretary of Labor's petition for review

;f the Olga case on August 7, 1979, and the Secretary of Labor's petition
for review of the Alabana By-P:i;_~~~cts case on March S, 1980. However,
neither case has been decided.
7/ As stated by Commission Rule 73, 29 C.F.R. § 2700.73, "[a]n unreviewed
decision of a judge is not a precedent binding upon the Commission." Therefore, although I accord considerable weight to a fellow judge's views, where
I disagree, I am not bound by his decision.

1586

Another cano~- of sta~~':_9_ry interpretation is that remedial statutes
are to be liberally construed to advance the remedies intended. §../

It, is

clear that an essential purpose of the 1969 Act and the 1977 A_~endnents
Act was to protect miners against coal workers' pneumoconiosis, commonly
known as "black lunt;," which is caused by the inhalation of respirable coal
dust, particles.

Thus; Section 2 of the 1969 Act, as amended, states

that "the first priority and concern of all in the coal or other 1nining
industry must be the health and safety of its most precious resource--the
miner," and stresses the need to prevent occupational diseases originating
in the mines.

The balance of Section 2 also stresses the iinportance of

protecting the health of 1niners, and Title IV, dealing with black lung
benefits, specifically provides benefits to miners who are disabled by
coal workers' pneunoconiosis.
Finally, Section 20l(b) of the 1969 Act stated:

8_/ See 3 Sands-, Sutherland Statutory Construction § 60.01. In St. Mary's
Sewer Pipe Cornpany v. Director of the United States Bureau of Mines,
262 F.2d 378, 381 (3rd Cir: 1959), the court 1aade the following coraments
concerning the 1952 Federal Coal Hine Safety Act:
The statute we are called upon to interpret is the outgrowth of a long history of major disasters in coal mines * * *·
It is so obvious ~s to be beyond dispute that in construing safety
or remedial legislation narrow or limited construction--is to be
eschewed. Rather, in this field liberal construction in light
of the prillle purpose of the legislation is to be employed.
Similar statements were made by the courts under the 1969 Act. See
Reliable Coal Co. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973); Phillips
v. IBMA 500 F.2d 772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938
(1975); Freeman Coal Mining Company v. IBMA, 504 F.2d 741, 744 (7th Cir.
1974); International Union, UMWA v. Kleppe, 532 F.2d 1403, 1406 (D.C.
Cir. 1976), cert. denied, 429
8S8 (1976).

u:s.

1587

Among other things, it is the purpose of this title to
provide, to tne· greatest extent possible, that the working
cbnditions in each underground coal mine are si1fficiently
free of respirable dust concentrations in the mine atmosphere
to periuit each' miner the opportunity to work un<le·rgro11nd
during the period of his entire adult working life without
incurring any disability from pneuraoconiosis or any other
occupation related disease during or at the end of such period.
Thus, ·it is clear that one of the essential purposes of this legislation
was to prevent 1niners from contracting pneumoconiosis as a result of inhaling
respirable dust, and to require mine operators to maintain an atmosphere as
free as possible from such dust.
Turning to the legislation in question, Section 202 of the ~mendment.s
Act reads:
a. Section 202(e) of the Federal Coal Mine Health and
Safety Act of 1969 is amended to read as follows:
"(e) References to concentrations of respirable dust
in this title mean the average of concentration of respirable dnst measure:! with a device approved bj the Secretary
and the Secretary of Health, Education, and Welfare."
b. Section 318(k) of the Federal Coal Hine Health and
Safety Act of 1969 is repealed.
As I read Section 202(e), the word "approved" is ambiguous and is
subject to two possibla definitions.

It can ·:nean, as contended by

Respondent, devices t:_~~~Eproved in the future.

Alternatively, it can

mean devices which have bee~_a_p_pEo_yed as well as devices which may be
approved in the future.

Since either rae;ming is plau'sible, I interpret

this language to have the meaning which wonld effectuate the purposes
of Congress and maintain the continuity of a respirahle dust pro3ra1.i.
which Congress considered so iinportant.

1588

Respondent
argued -·-that
the word "Secretary," as used in Section 202(e),
-·----~

_,

means the Secretary of Labor because Section 102(b)(l) of the Anendments
Act amended Section 3(a) of the 1969 Act to read:

"F'or the purpose of th.is

Act, the term Secretary means the Secretary of Labor or his delegate."

Prior

to amendnent, "Secretary" meant "the Secretary of the Interior or hts
delegate.".
Section 307 of the Amendments Act stated:
Except as otherwise provided, this Act and the amendments
made by this Act shall take effect 120 days after the date of
enactment of this Act * * *· The amendment to the Federal
Coal Mtne Health and Safety Act of 1969 made by section202
of this Act shall be effective on the date of enactment.
Thus, although the amendments in Section 202 of the 1977 legislation
were made effective immediately, the change in definition of "Secretary" fro111
"Secretary of the Interior" to "Secretary of Labor," as well as the balance
of the Act, did not beco1ae effective until 120 days later.

When Section

202(e) was enacte<l, the "Secretary" was the Secretary of the Interior and not
the Secretary of Labor and, as indicated, the Secretary of the Interior had
approved the device involved in this case.

The fact that the effective date

of all other sections of the Act was delayed 120 days, while this section
was made effective immediately, further convinces me that Congress intended
that there be a valid and enforceable respirahle dust program immediately
upon enactment of the statute.
A further indicat:i.011 of Congress' int.ant to avoid the "lapse situation"
urged by Respondent is Section 30l(c)(2) of the A1.1en<lments Act.

That provi-

sion preserves all "orders, decisions, determinations, rules, regulations,

1589

permits, contracts, certificates, licenses, and privileges" which were in
effect when the enforcement functions were transferred fro1a the Department
of the Interior to the Department of Labor.

I do not feel that this provi-

sion could have been drafted with any greater clarity, breadth, or decisiveness.

This savings clause preserved the approvals of dust devices which

were made under the 1969 Act until MSHA ruled otherwise.
Therefore, I find that there is, and has been since the enact1:ie11t of
the Amendments Act, an enforceable respirable d1.1st program.

The Rendix

Environmental Science Division Micron Air II in this case was "approved
by the Secretary and the Secretary of Health, Education, and Welfare"
when the citations were issued.
Respondent violated 30 C.F.R. § 70.lOO(b) with respect to eA.ch
citation.

As indicated in Stipulation No. 9, in Citation No. 9911086,

the average concentrat:lon of respirable dust was 2.49 nilligra·.us per
cubic meter of air based upon a cur1iulativ1~ concentration of 24. 9 milli3rar.1s
in 10 satnples; in Citation No. 9911223, the average concentration was
3.5 milli3rams, based 11ron a cumulative cancentration of 24.5 milli~rarns
in seven samples; and in Citation No. 9911015, the average concentration
was 2.57 milligrams, based upon a cumulative concentration 0-f. 2.5.7 milligrams in 10 samples.

Thus, with respect to each citation, Respondent

exceeded the allowable average concentration of 2.0 milligra:,us•
I further find (1) Respondent iG a lA.rge operator; (2) its actions
constituted ordinary nesligence; (3) pay;aent of an approprlate penalty
will not effect its ability to continue in business; (4) Respondent

1590

exercised ordinary good faith in abating all citations within the time
set for abatement or a reasonable time thereafter; (5) it had a large
number of previous violations; and (6) the gravity was small in that
the possible occurrence which could reasonably be expected is lost work
days if exposure continued to exceed the statutory minimum.

Upon con-

sideration of the foregoing, I assess a penalty of $150 for each violation.
ORDER
Respondent is ORDERED to pay $450 in penalties within 30 days of the
date of this Order.

Edwin s. Bernstein
Administrative Law Judge
Distribution:
Barbara Kaufmann, Attorney, Office of the Solicitor, U.S. Department
of Lahor, Roora 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified ~fail)
Harold s. Albertson, Jr., Esq., Hall, Albertson and Jones, P.O. Box 1989,
Charleston, WV 25327 (Certified Mail)

1591

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR

520J LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 4 JUN 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. BARB 79-311-PM
A/O No. 09-00155-05001

Petitioner

v.
Speer-Thor Mine
THOR MINING COMPANY,
Respondent
DECISION
Appearances:

Larry A. Auerbach, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Jeffrey J. Yost, Esq., Thor rlining Company, Berkeley
Springs, West Virginia, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On April 26, 1979, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty in the abovecaptioned proceeding. The petition was filed pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 ~~·
(1978) (1977 Mine Act) and alleged seven violations of various provisions
of the Code of Federal Regulations. Thor Mining Company (Respondent) filed
its answer on May 23, 1979. On August 16, 1979, the case was assigned
to Assistant Chief Administrative Law Judge Paul Merlin. The case was subsequently transferred to the undersigned Administrative Law~udge on
December 4, 1979.
Notices of hearing were issued on December 13, 1979, and February 11,
1980, scheduling the case for hearing on the merits on February 28, 1980,
in Valdosta, Georgia. The hearing was held as scheduled with representatives
of both parties present and participating.
During the hearing, Petitioner moved to dismiss the proceeding as
relates to Citation No. 97920, October 25, 1978, 30 C.F.R. § 55.12-8 on the
grounds that the available evidence would not sustain the violation as
alleged. The motion was granted (Tr. 11). Additionally, the parties moved
for approval of settlement as relates to Citation No. 97925, October 25,
1978, 30 C.F.R. § 55.12-32 (Tr. 105-108). Approval of the proposed settlement
is set forth in Part VI of this decision.

1592

A schedule for the submission of pos_thearing briefs was agreed upon
following the presentation of the evidence. Both parties filed posthearing
briefs on April 14, --19'80; and both parties filed reply briefs on April 30,
1980.
II.

Violations Charg_ed
Citation No.
97919
97920
97921
97922
97923
97924
97925

III.

Date
October 25, 1978
October 25' 1978
October 25, 1978
October 25' 1978
October 25' 1978
October 25, 1978
October 25, 1978

30 C.F.R.
Standard
55.14-1
55.12-8 1/
55.11-2
55.14-1
55.12-8
55.11-12
55.12-32 :!:./

Witnesses and Exhibits
A) Witnesses

Petitioner called as its witnesses Kenneth Pruitt-and Charles Pittman,
MSHA inspectors.
Respondent called as its witness Richard Allgyer, its plant manager.
B) Exhibits
1)

Petitioner introduced the following exhibits into evidence:

M-1 is a drawing pertaining to Citation No. 97919, October 25, 1978,
30 C.F.R. § 55.14-1.
M-2 is a photograph.
M-3 is a drawing pertaining to Citation No. 97922, October 25, 1978,
30 C.F.R. § 55.14-1.
2)

Respondent introduced the following exhibits into evidence:

0-1 is a photograph pertaining to Citation No. 97919, October 25, 1978,
30 C.F.R. § 55.14-1.
0-2 is a drawing prepared by Mr. Allgyer pertaining to Citation
No. 97924, October 25, 1978, 30 C.F.R. § 55.11-12.

!/

As noted previously, a motion to dismiss was granted as relates to
this citation.
];/ As noted previously, a settlement was proposed as relates to this
citation.

1593

3) The following exhibits are drawings produced by various witnesses
during the hearillg: --- -·
X-1 was drawn by Inspector Pruitt and pertains to Citation No. 97921,
October 25, 1978, 30 C.F.R. § 55.11-2.
X-2 was drawn by Inspector Pruitt and pertains to Citation No. 97922,
October 25, 1978, 30 C.F.R. § 55.14-1.
X-3 was drawn by Inspector Pruitt and pertains to Citation No. 97924,
October 25, 1978, 30·C.F.R. § 55.11-12.
X-4 was drawn by Mr. Allgyer and pertains to Citation No. 97919,
October 25, 1978, 30 C.F.R. § 55.14-1.
IV

Issues

Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of the subject regulations occur, and (2) what amount
should be assessed as a penalty if a violation is found to have occurred?
In determining the amount of civil penalty that should. be· -assessed for a
violation, the law requires that six factors be considered: (1) history of
previous violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of
the penalty on the operator's ability to continue in business; (5) gravity
of the violation; and (6) the operator's good faith in attempting rapid
abatement of the violation.
V.

Opinion and Findings of Fact
A.

Stipulations

1) The mine had 18 employees who were working three 8-hour shifts per
day (Tr. 5).
2) In terms of the penalty considerations promulgated at 30 C.F.R.
100, the mine rated a 3 on a scale of 0 to 10 and it had between 30,000
and 60,000 hours of work per year, and the company rated a 0 on a scale
of 0 to 10 and it had under 60,000 hours of work per year (~r. 5).
§

3) The mine has no history of previous violations for the 24-month
period prior to the inspection (Tr. 5).
4) Respondent is subject to the ~rovisions of the 1977 Mine Act
(Tr. 10-11).
B)

Citation No. 97919, October 25, 1978, 30 C.F.R. § 55.14-1

Occurrence of Violation
The allegations contained in the citation and incorporated into the
petition for assessment of civil penalty allege a violation of mandatory

1594

safety standard 30 C.F.R. § 55.14-1 in that "[t]he head pulley on the cool clay
conveyor belt was1Iot--gu·arded-." The cited mandatory safety standard provides as follows: "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 head pulley was located approximately 4 to 5 feet above the ground
(Tr. 22, 125). One side of the head pulley was completely guarded since it
abutted an adjacent building (Tr. 27, Exh. 0-1). The evidence presented
at the hearing reveals that the other side of the head pulley was adequately
guarded except in one area located to the right of the expanded metal V-belt
guard providing access to the pinch point formed where the conveyor belt
initially achieved contact with the.upper portion of the head pulley (Tr. 23,
28-32, 35). An individual making contact with the pinch point could sustain
physical injury (Tr. 28-29, 40).
Respondent argues that Petitioner has failed to prove a violation because
the evidence presented establishes that the pulley was guarded (Respondent's
Posthearing Brief, p. 2). I disagree. The evidence presented shows that an
employee could have achieved contact with the pinch point because the existing
expanded metal V-belt guard extended only approximately 6 inches to the right
of the pinch point (Tr. 114). Guarding should have been installed to a point
approximately 2 feet past the pinch point (Tr. 42). Therefore, the existing
guard was insufficient to provide adequate protection within the meaning of
the regulation.
Additionally, Respondent attacks the citation as insufficient to provide adequate notice of the violation charged (Respondent's Posthearing
Brief, p. 2). I disagree.
Section 5(b)(3) of the Administrative Procedure Act, 5 U.S.C. § 554(b)(3)
1978), requires that "[p]ersons entitled to notice of an agency hearing shall
be timely informed of*** the matters of fact and law asserted.". Adequate
notice is necessary to enable a mine operator "to determine with reasonable
certainty the allegations of violations charged so that it may intelligently
respond thereto and decide whether it wishes to request formal adjudication."
Old Ben Coal Company, 4 IBMA 198, 208, 82 I.D. 264, 1974-1975 OSHD par. 19,
723 (1975). However, an inquiry into whether notice is ad~quate need not
be confined to the four corners of the citation so long as the operator
is sufficiently apprised to permit abatement of the. condition and preparation
of an adequate defense. Jim Walter Resources, Inc., 1 FMSHRC 1827, 1979
OSHD par. 24,046 (1979).
A review of all evidence submitted reveals that Respondent was accorded
notice sufficient to abate the condition and prepare an adequate defense
(~, ~·.£·• Tr. 125).
In this regard, it is significant to note that Respondent did not request a continuance when evidence was introduced at the
hearing delimiting the extent of the inadequate guarding. Instead, Respondent defended on the merits by presenting evidence addressed to the pinch

1595

point issue and raised the question of inadequate notice only in its posthearing brief. Accord, Jim Walters Resources, Inc., 1 FMSHRC at 1829. In
view of these considerations, it cannot be concluded that Respondent was
prejudiced by the description of the condition as set forth in the citation.
In view of the evidence submitted, it is found that a violation
of 30 C.F.R. § 55.14-1 has been established by a preponderance of the
evidence. '}__/
3/ Section 104(a) of the 1977 Mine Act authorizes the issuance of
citations when the mine operator violates a mandatory safety standard.
Respondent argues that the duly authorized representative of the Secretary
of Labor was not empowered to issue a citation for the condition existing
on October 25, 1978, because the condition falls within the definition
set forth in 30 C.F.R. § 55.14-3, a standard which was not mandatory at
the time of the inspection (Respondent's Reply Brief, pp. 5-6).
A proper evaluation of Respondent's position requires an assessment
of both 30 C.F.R. § 55.14-3 and the Secretary of Labor's interpretation
of the interrelationship between that regulation and 30 C.F.R. § 55.14-1.
On October 25, 1978, 30 C.F.R. § 55.14-3 was a nonmandatory safety
standard providing as follows: "Guards at conveyor-drfve, -head, and -tail
pulleys should extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley."
The regulation was subsequently revised and made mandatory, effective
November 15, 1979, pursuant to a final rule published in the August 17, 1979,
issue of the Federal Register, 44 Fed. Reg. 48518 (1979), and currently
provides as follows: "Mandatory. GuardSat conveyor-drive, conveyor-head,
and conveyor-tail pulleys shall extend a distance sufficient to prevent a
person from accidentally reaching behind the guard and becoming caught
between the belt and the pulley."
On March 17, 1980, the Mine Safety and Health Administration published
a program directive designed to provide guidance to Federal mine inspectors
in enforcing 30 C.F.R. § 55.14-3 stating as follows:
"New mandatory standard 55/56/57.14-3 requires that the guards at
conveyor-drive, conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient to prevent a person from accidentally reaching behind the
guard and becoming caught between the belt and the pulley. This standard is
to be cited when there is a guard at such locations, but it does not extend
a distance sufficient to prevent persons from accidentally-reaching behind
the guard and becoming caught.
"The new standard is to be distinguished from standard 55/56/57.14-1
which requires guarding of certain moving parts (such as drive, head, tail
and takeup pulleys) which may be contacted by, and cause injury to, persons.
Standard 55/56/57.14-1 is to be cited in those instances when there is no
guard at the conveyor-drive, conveyor-head, or, conveyor-tail pulleys."
[Emphasis added.]
1 BNA Mine Safety and Health Reporter 485 (1980).
The Secretary of Labor's interpretation of both 30 C.F.R. § 55.14-3 and
its relationship to 30 C.F.R. § 55.14-1, as set forth in the March 25, 1980,
program directive, does not preclude a finding that Respondent violated
30 C.F.R. § 55.14-1 on October 25, 1978 because 30 C.F.R. § 55.14-1 was the

1596

Gravity of the Violation
The pinch point was located approximately 54 inches above the ground
(Tr. 125). It was partially guarded by a cover positioned approximately
2 to 3 inches above the conveyor belt (Tr. 22-23, Exh 0-1), by the electric
motor and V-belt dri~e (Tr. 32) and by the expanded metal V-belt guard whicil
extended approximately 6 inches to the right ·of the pinch point (Tr. 31-32,
115). In order to achieve contact with the pinch point, an individual would
have to reach at an angle into the 12-inch opening between the belt frame
and the underside of the belt (Tr. 154-156). The testimony of Mr. Allgyer
indicates that an individual would have to extend his reach approximately
17 inches in order to contact the pinch point (Tr. 126-127), while the testimony of Inspector Pruitt indicates that an individual would be required to
extend his reach only 12 to 14 inches (Tr. 156-157).
Inspector Pruitt testified that an individual could, under the proper
conditions, make contact with the pinch point (Tr. 24, 40). The circumstances ranged from a "slip and fall" occurrence in which the individual
would instinctively reach out and grab for something to stabilize himself
and thereby accidentally become entangled in the pinch point. (Tr. 24, 15 7),
to simply walking in close proximity to the belt and extending a hand for
some reason (Tr. 40). Mr. Allgyer disagreed, testifying that in his judgment
an individual would have to make a "concerted effort" to put his hand in
there (Tr. 125).
The evidence reveals that individuals would pass within 3 feet of the
area (Tr. 34-35) but that no one was assigned to the head pulley on a permanent basis (Tr. 32-33). Additionally, the condition was outdoors and it
should be noted that Fuller's earth material becomes very slick when wet
(Tr. 24). 4/ Inferences drawn from the testimony indicate that such material
was procesS"ed at the Speer Thor Mine,
In view of the foregoing, it is found that an occurrence of the event
against which the standard is directed was improbable. However, if an accident
occurred, one individual could reasonably be expected to sustain serious
injury (Tr. 28-29, 36, 40).
The violation was moderately serious.
Negligence of the Operator
Inspector Pruitt testified that the condition looked as though it had
existed for some time (Tr. 46), The plant manager informed him that more
fn, 3 (continued)
sole mandatory safety standard addressing the condition existing on that
date. The fact that the Secretary of Labor subsequently revised and made
mandatory 30 C.F.R. § 55.14-3 and thereafter issued a program directive to
guide Federal mine inspectors in enforcing these mandatory safety standards
which will require future citations tr' be issued under 30 C.F.R. § 55.14-3.
is not controlling in the instant case.
4/ Fuller's earth material is a clay product used for making oil absorbents
and kitty litter (Tr. 52).

1597

extensive guards had_~e_yer_been present (Tr. 46-47). Management personnel
would have pas;e-d ;-{thin 10 feet of the area daily since it was near the
entrance to the plant (Tr. 46). Accordingly, it must be concluded that
Respondent knew or should have known of the condition.
However, mitigating factors are present. The description of the condition provided by the witnesses reveals that reasonable minds could differ
as to need to extend the guard an additional 2 feet to the right. In
view of this, it is found that Respondent demonstrated a low degree of
ordinary negligence,
Good Faith in Attempting Rapid Abatement
The citation alleges 4 p.m. October 30, 1978, as the termination due
date. The violation was abated on Saturday, October 28, 1978 (Tr. 110).
Accordingly, it is found that Respondent demonstrated good faith in attempting rapid abatement.
C)

Citation No. 97921, October 25, 1978, 30 C.F.R. § 55.11-2

Occurrence of Violation
The allegations contained in this citation and incorporated into the
petition for assessment of civil penalty allege a violation of mandatory
safety standard 30 C.F.R. § 55.11-2 in that "[t]here was no handrails around
outer edge of the top of the storage tank. Occasionally, a person has to
go out on top of the tank." The cited mandatory safety standard provides
as follows: "Crossovers, elevated walkways, elevated ramps, and stairways,
shall be of substantial construction, provided with handrails, and maintained
in good condition. Where necessary, toeboards shall be provided."
The top of the storage tank was described as a galvanized metal roof
approximately 20 feet square (Tr. 51, 55). The edge of the roof was approximately 30 feet above the ground (Tr. 50, Exh. M-2). Access to the top of the
storage tank was provided by a vertical ladder attached to an adjacent bucket
elevator. A short, handrail equipped walkway, which terminated at the edge
of the top of the tank, served as the connection between fhe ladder and the
top of tank. However, the handrails did not extend beyond_ the edge of the
short walkway and handrails were not present around the outside edge of the
tank (Tr. 48-49, 57, Exh. X-1). An inspection cover, or plate, was located
approximately in the center of the roof (Tr. 55, Exh. X-1). The plant manager
informed Inspector Pruitt that occasionally an individual was required to go
atop the storage tank and proceed to the cover plate in order to determine
the amount of material in the bin (Tr. 49, see also Tr. 129). Accordingly,
an individual wQuld have been required to traver;;-the distance between the
end of the short walkway and the cover plate without the protection afforded
by handrails.
Respondent argues that the regulation does not apply to the storage
tank since it is not a crossover; elevated walkway, elevated ramp or stairway (Respondent's Posthearing Brief, p. 4). I disagree. The function
performed at the top of the tank governs the determination as to whether
the regulation applies, and the function performed there brings it within
the definition of an elevated walkway.

1598

Accordingly, it is found that a violation of 30 C.F.R. § 55.11-2 has been
established by a-preponderance of the evidence.
Gravity of the Violation
Inspector Pruitt testified that the roof had a slight elevation in the
center (Tr. 51), and the testimony of Mr. Allgyer indicates that the center
of the roof was probably not more than 5 inches higher than the outside
edge (Tr. 129-130). According to the inspector, a dusting of Fuller's
earth material gets on the roof and the material is very slippery when wet
(Tr. 51-52). An individual falling from the roof would sustain injuries
ranging from lost work days to death (Tr. 54). In this regard, it is significant to note that a concrete slab was present on one side of the storage
tank (Tr. 54), and that at one point an individual would be within 2 feet
of the edge of the tank (Tr. 60). One person would have been exposed to
injury (Tr. 54).
Accordingly, it is found that the violation was serious.
Negligence of the Operator
Respondent knew that individuals were required to perform periodic
checks at the cover plate and also knew or should have known that handrails
had not been provided. It can be inferred that the condition had existed
for a substantial period of time. Additionally, the height of the storage
bin and the dimensions and physical characteristics of the roof give clear
indication to a reasonable mind that handrails were necessary to protect the
individuals atop the tank. Accordingly, it is found that Respondent demonstrated gross negligence.
Good Faith in Attempting Rapid Abatement
The citation alleges 4 p.m., October 31, 1978, as the termination due
date. The violation was abated on Saturday, October 28, ·1978 (Tr. 130).
Accordingly, it is found that Respondent demonstrated good faith in attempting rapid abatement.
D)

Citation No. 97922, October 25, 1978, 30 C.F.R. § 55.14-1

Occurrence of Violation
The allegations contained in the citation and incorporated into the
petition for assessment of civil penalty allege a violation of mandatory
safety standard 30 C.F.R. § 55.14-1 in that "[t]he tail pulley on the long
conveyor belt on the bottom floor of the screen house was not guarded."
The evidence presented at the hearing reveals that guards were present
on both sides of the tail pulley (Tr. 63). The citation was issued because
the guards were inadequate to prevent contact with the pinch point formed
where the lower portion of the conveyor belt initially achieved contact with
the lower portion of the tail pulley (Tr. 63). The bottom of the belt was

1599

49 inches above .the floor (Tr. 130). The. guards extended below the pinch
point but just b-arely·came-to the bottom of the belt (Tr. 67). A 10- or
12-inch space was present between the inside of each guard and the belt
(Tr. 67-68). In order to achieve contact with the pinch point, an individual would be required to enter this space from the underside of the belt
and bring his hand or other object above the belt and into the pinch
point (Tr. 67-68).
Cleanup operations were perfomed in this area and, according to
Mr. Allgyer, a person would have to pass under the belt at the cited location
at a certain stage of the cleanup operation (Tr. 131). A person making contact with the pinch point could sustain physical injuries (Tr. 63-64, 70).
Respondent raises the same adequacy of notice argument set forth in connection with Citation No. 97919, October 25, 1978, 30 C.F.R. § 55.14-1, supra
(Respondent's Posthearing Brief, p. 6). The argument is rejected for the
reasons set forth previously in this decision. The testimony of Mr. Allgyer,
the plant manager, is of particular significance to this determination. He
testified that a piece of expanded metal was placed on the underside of the
belt frame in the approximate area designated by Inspector Pruitt (Tr. 13).
Thus, it must be concluded that the citation sufficientl'j apprised the
Respondent of the condition constituting the alleged violation.
§

In view of the foregoing, it is found that a violation of 30 C.F.R.
55.14-1 has been established by a preponderance of the evidence.

Gravity of the Violation
An occurrence of the event against which the standard is directed would
have been probable in the event an individual shoveled under the belt (Tr. 65).
As noted previously, cleanup operations were performed in this area and an
individual would be required to pass under the belt at the cited location
during cleanup operations (Tr. 131). An individual was working in the area
of the conveyor belt on the day of the inspection (Tr. 63). An individual
could get pulled into the pinch point by a shirtsleeve, broom handle or other
object achieving contact with it (Tr. 63-64, 70-71) and injuries could range
from death to the loss of an arm (Tr. 65, 71). One person would have exposed
to the hazard (Tr. 65).
Accordingly, it is found that the violation was serious.
Negligence of the Operator
The condition was not readily v{sible in that it could not be seen
while examining the belt from a side view (Tr. 64). However, one of Respondent's supervisory personnel could have discovered the condition by looking
up from the underside of the belt (Tr. 64-65).
Accordingly, it is found that Respondent demonstrated a slight degree
of ordinary negligence.

1600

Good Faith in Attempting Rapid Abatement
The citation alleges 12 noon, October 30, 1978, as the termination due
date. Abatement was accomplished on Saturday, October 28, 1978 (Tr. 131).
Accordingly, it is found that Respondent demonstrated good faith in attempting rapid abatement. ·
E)

Citation No. 97923, October 25, 1978, 30 C.F.R. § 55.12-8

The allegations contained in the citation and incorporated into the
petition for assessment of civil penalty allege a violation of mandatory
safety standard 30 C.F.R. § 55.12-8 in that "[t]he motor junction box was
missing on the electric motor for the screw conveyor." The cited mandatory
safety standard provides as follows:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through
metal frames, the holes shall be substantially bushed
with insulated bushings.
The motor in question was enclosed by a metal casing (Tr. 78). A
junction box is approximately 6 inches square and fastens onto the side of
the motor (Tr. 78). Inside the junction box, the wires from the electrical
cable running from the power source are connected to the motor's lead wires
(Tr. 82-83). The junction box serves to protect the wiring at this connection point (Tr. 81-82). In the instant case, the junction box was missing
and the wires were fastened together and taped with electrical tape (Tr. 78).
The lead wires entered the side of the motor through a 2-1/2-inch opening
(Tr. 78, 80-82). No form of bushing was present at the point of entry
(Tr. 78,85). Inferences drawn from Inspector Pruitt's testimony indicate
his belief that proper bushings would reasonably be expected to be .installed
in connection with the installation of a junction box (Tr. 83-84).
The Respondent argues that the citation £ails to allege a violation of
the cited regulation because the allegations contained in the citation make
no reference to the absence of bushings, but are confined-to the absence of
a junction box when the regulation fails to make mandatory the installation
of such junction boxes (Respondent's Posthearing Brief, p. 7; Respondent's
Reply Brief, pp. 7-8). I agree. The citation clearly fails to describe a
violation by failing to make reference to the absence of.the required
bushings.
The record developed at the hearing reveals the absence of such bushings and contains expert testimony indicating that they would have been
present had the junction box been installed. However, the fact remains
that the citation contains no allegation to this effect. As noted previously in this decision, an operator is entitled to notice sufficient to
determine with reasonable certainty the nature of the violation charged
so as to permit abatement of the condition and preparation of an adequate
defense.

1601

The-citaton was clearly inadequate to apprise the operator that installation of insulated _hushi-ng-s- was necessary to abate the condition, as demonstrated by the testimony of Mr. Allgyer. The condition was abated by
installation of a junction box as required by the inspector, not through the
installation of bushings (Tr. 133-134).
The allegations were clearly inadequate to permit preparation of an
adequate defense as relates to the absence of bushings since there is no
indication that the Respondent was ever apprised that such absence formed
the basis for the charge. Additionally, it cannot be found that the issue
has been tried with the implied consent of the parties. The Respondent's
case clearly centered around disproving any notion that 30 C.F.R. § 55.12-8
requires the use of junction boxes.
Accordingly, the petition for assessment of civil penalty will be dismissed as relates to Citation No. 97923, October 25, 1978, 30 C.F.R. § 55.12-8.
F)

Citation No. 97924, October 25, 1978, 30 C.F.R. § 55.11-2

Occurrence of Violation
The allegations contained in the citation and incorporated into the
petition for assessment of civil penalty allege a violation of mandatory
safety standard 30 C.F.R. § 55.11-12 in that ''[t]here was an opening at the
fines pump sump that a person could fall into. The sump was about 5 feet
deep." The cited mandatory safety standard provides as follows: "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."
The uncovered pump sump opening was approximately 2-1/2 feet by
2-1/2 feet and 5 feet deep (Tr. 86). The opening was surrounded by a curb
approximately 2 to 3 inches in height (Tr. 87, 91). Inspector Pruitt testified that no railings, barriers or covers were present and that it would
be possible for someone to pass through the opening (Tr. 87). The testimony
of Mr. Allgyer reveals that the sump pump motor and a 2 to 3 inch diameter
pipe partially covered the opening, but that an individual could still fit
through it (Tr. 138-139).
The pertinent language of 30 C.F.R. § 55.11-12 requires openings near
travelways through which men or materials may fall to be protected by railings, barriers or covers. The testimony as relates to the steps taken to
abate the condition reveals that it was practical to install such protective
devices (Tr. 140). 30 C.F.R. § 55.2 defines a "travelway" as "a passage,
walk or way regularly used and designated for persons to go from one place
to another." Accordingly, the condition cited by Inspector Pruitt constitutes a violation only if the uncovered pump su;np opening was ne?r a passage, walk or way regularly used and designated for persons to go from one
place to another.

1602

The test1aiony of -Inspector Pruitt reveals the absence of signs· designating walk areas (Tr. 88). The testimony of Mr. Allgyer reveals that a dry
cyclone, a wet cyclone and a fan and motor were located in the vicinity of
the pump sump (Exh. 0-2). He testified that an individual visiting these
three pieces of equipment "normally" would not go near the sump (Tr. 137138). Inspector Pruitt expressed a contrary opinion, testifying that the
equipment in the area has to be serviced and that from a practical standpoint the shortest distance between given points would take an individual
near the opening (Tr. 87-88). However, notwithstanding this disagreement,
it is significant 'to note that the pump motor experienced frequent breakdowns (Tr. 144) and that an individual would periodically check the pump on
a regular basis to determine whether it was running (Tr. 138). Respondent
experienced enormous problems with the system and people were required to
travel to the pump to affect repairs (Tr. 146). An employee servicing the
pump would come to within 2 feet of the sump.
Petitioner argues that Respondent, by its acts and omissions, designated the entire area as a travelway. In support of its argument, Petitioner asserts that Respondent was aware that its employees regularly
traveled in the area, that it never claimed to have prohibited or even discouraged employees from traveling near the opening, and that it did not
delineate the area as unsafe for employee travel or in any way restrict
employees to areas it believed safe for travel (Petitioner's·Posthearing
Brief, p. 13). I agree. By failing to designate safe areas for travel,
Respondent tacitly designated the entire area as a "way • • • for persons
to go from one place to another." The need to conduct regular inspection
and repair activities at the sump pump establishes that it was regularly
used. Accordingly, it is found that the area was a travelway within the
meaning of 30 C.F.R. § 55.2. The need to perform regular inspections and
work as relates to the pump motor establishes that the pump sump opening
was near a travelway.
Accordingly, it is found that a violation of 30 C.F.R. § 55.11-2 has been
established by a preponderance of the evidence.
Gravity of the Violation
An occurrence was improbable. In the event of an o_ccurrence, a broken
arm or leg resulting in lost work days would be the likely injury. One person would have been affected (Tr. 88-89).
Accordingly, it is found that th€ violation was of moderate gravity.
Negligence of the Operator
The condition was plainly visible and it can be inferred that it had
existed for a substantial period of time. Therefore, Respondent should have
known of the condition.
Accordingly, it is found that Respondent demonstrated a high degree of
ordinary negligence.
f

1603

Good Faith in Attempting Rapid Abatement
The condition was abated by fabricating a guard to fit over the lip
on the sump (Tr. 140). Abatement probably occurred on Saturday, October 28,
1978, (Tr. 140), i.e., prior to the October 31, 1978, termination due date
alleged in the citation.
Accordingly, it is found that Respondent demonstrated good faith in
attempting rapid abatement.
G)

History of Previous Violations

The parties stipulated that Respondent has no history of previous violations (Tr. 5).
H)

Size of the Operator 4 s Business

The parties stipulated that the size of Thor Mining Company is rated
at less than 60,000 annual manhours of work, and that the size of the
Speer-Thor Mine is rated between 30,000 and 60,000 annual manhours of
work (Tr. 5).
Counsel for Respondent stated to the Judge that Thor Mining Company is
a subsidiary of Pennsylvania Glass Sand Corporation which operates 12 mines
in addition to Thor (Tr. 6). Pennsylvania Glass Sand Corporation is owned
by International Telephone and Telegraph Corporation which owns other mining
operations (Tr. 8-9).
Consideration will be confined to the size of Thor Mining Company and
its Speer-Thor Mine in assessing civil penalties in the instant case because
no evidence was presented establishing the size of Pennsylvania Glass Sand
Corporation's and International Telephone and Telegraph Corporation's other
mining operations.
I)

Effect on Operator's Ability to Continue in Business

No evidence was presented establishing that the assessment of any
penalty in this proceeding will affect Respondent's abili~y to continue in
business. The Interior Board of Mine Operations Appeals has held that evidence relating 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. Hall Coal Company,
1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I
find that penalties otherwise properly assessed in this proceeding will not
impair the operator's ability to continue in business.
VI

Approval of Settlement

During the hearing, the parties moved for approval of a settlement as
relates to Citation No. 97925, October 25, 1978, 30 C.F.R. § 55.12-32. The
$34 settlement figure represents 100 percent of the assessment proposed by

1604

the Mine Safety ~~d ~~alth_Administration's Office of Assessments. As noted
previously in the decision, the parties entered into stipulations as relates
to the number of employees at the mine, to the size of the mine and con:trolling company in terms of the number of manhours worked per year, and to
the absence of a history of previous violations. Counsel for the parties
set forth on the record the following reasons in support of the proposed
settlement:
MR. YOST: Yes, Your Honor. At this time, we would like
to move that you approve a settlement of citation 097925.
This citation was issued because the junction box cover was
missing on the fines su,np pump motor and we have agreed with
the Solicitor to pay the full amount of the assessed penalty
and to admit that the violation did exist.
The agreement takes into account the fact that there
were no previous violations at Thor Mining prior to this
inspection; that there were no exposed wires in the junction box, all the wires were insulated or properly taped
so that there was no exposed -- exposed wires.
Because there were no exposed wires, the gravity or
probability of injury would be improbable and the -- there
•
I
•
•
was a covering on order for several electrical equipment -pieces of electrical equipment were on order at the time of
the inspection and a cover was included in that order; and,
it was corrected at least two days before the termination
due date.
JUDGE COOK
Mr. Auerbach?

Are you agreeing to those facts,

MR. AUERBACH: Yes, Your Honor, except for the abatement
date which we don't have direct knowledge of. We don·' t
question it or disagree with it, but only couldn't stipulate
it as a fact and we don't have direct knowledge of it. Everything else we would stipulate that we would agree.with it.
JUDGE COOK: All right. Now, however, as it relates
to negligence, I realize that you did say, of course, that
this was on order, but has either of you reached some understanding as to what is the kind of negligence that is
involved in this?
MR. YOST: I'm sorry, Your Honor, I omitted that.
Based on the assessment that was proposed by the Mine Safety
and Health Administration, they found this to involve ordinary
negligence and we have stipulated that it did involve ordinary
negligence.
JUDGE COOK:

Is that agreeable, Mr. Auerbach?

1605

MR. AUERBACH: Yes, Your Honor.
JUDGE COOK: All right.
you want to present on it?
MR. YOST:

Is there anything further

No, Your Honor.

HR. AUERBACH:

Nothing, Your Honor.

(Tr. 106-107)
The reasons given by counsel for the parties in support, of the proposed
settlement have been reviewed in conjunction with the information submitted
as to the six statutory criteria contained in section llO(i) of the 1977
Mine Act. After according this information due consideration, it has been
found to support the proposed settlement. It therefore appears that
approval of the settlement will adequately protect the public interest.
The parties' stipulation that Respondent demonstrated ordinary negligence in connection with the violation is deemed of particular significance
to approval of the settlement.
VII.

Conclusions of Law

1) Thor Mining Company and its Speer-Thor 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) MSl~ inspector Kenneth Pruitt was duly authorized representative of
the Secretary of Labor at all times relevant to the issuance of the citations
which are the subject matter of this proceeding.

4) Citation No. 97923, issued on October 25, 1978, fails to allege a
violation of 30 C.F.R. § 55.12-8.
5) The violations charged in Citation Nos. 97919, October 25, 1978,
30 C.F.R. § 55.14-1; 97921, October 25, 1973, 30 C.F.R.-1 55.11-2; 97922,
October 25, 1978, 30 C.F.R. § 55.14-1; and 97924, October 25, 1978, 30 C.F.R.
§ 55.11-12 are found to have occurred.
6) All of the conclusions of law set forth in Part V of this decision
are reaffirmed and incorporated herein •.
VIII.

Proposed Findings of Fact and Conclusions of Law

Both parties submitted posthearing briefs and reply 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

1606

in this decision, they are rejected on the ground that they are, in whole or
in part, contrar¥_ to__the-£acts and law or because they are immaterial to the
decision in this case.
IX.

Penalties Assessed

Upon consideratibn of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that assessment of a penalty
is warranted as follows:
Citation No.
97919
97921
97922
97924
97925

Date

30 C.F.R.
Standard

10/25/78
10/25/78
10/25/78
10/25/78
10/25/78

55.14-1
55 .11-2
55.14-1
55.11-12
55.12-32

Penalty
40.00
130.00
50.00
75.00
34(settlement)

ORDER
IT IS ORDERED that the oral determination made at the hearing granting
Petitioner's motion to dismiss as relates to Citation No. 97920, October 25,
1978, 30 C.F.R. § 55.12-8 be, and hereby is, AFFIRMED.
IT IS FURTHER ORDERED that the settlement outlined in Part VI, supra,
be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that the petition for assessment of civil penalty
be, and hereby is, DISMISSED as relates to Citation No. 97923, October 25,
1978, 30 C.F.R. § 55.12-8.
IT IS FURTHER ORDERED that Respondent pay civil penalties in the amount
of $329.00 within 30 days of the date of this decision.

Administrative Law Judge
Distribution:
Larry Auerbach, Esq., Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 30309
(Certified Mail)
Jeffrey J. Yost, Esq., Thor Mining Company, P. O. Box 187, Berkeley
Springs, WV 25411 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Standard Distribution

1607

-~

.

-

--

FEDERAL- MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520.1 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

t 5 JUN 1990
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
MARGIN COAL COMPANY, INC.,
Respondent

Docket No. KENT 79-149
Assessment Control
No. 15-04456-03003-H
No. 6 Strip Mine

DECISION
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Clinton Robbins, Superintendent, East Bernstadt, Kentucky,
for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 26, 1980, a hearing
in the above-entitled proceeding was held on April 23, 1980, in Barbourville,
Kentucky, under· section 105(d) of the Federal Mine Safety and Health Act of
1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 63-74):
This hearing involves a Petition for Assessment of Civil
Penalty filed in Docket No. KENT 79-149 on June 14, 1979,
alleging five violations of the mandatory health and safety
standards by Margin Coal Company.
The issues raised by the Petition for Assessment of Civil
Penalty are whether those five alleged violations occurred
and, if so, what penalties should be assessed based on the six
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977.
The testimony in this proceeding by both the respondent's
witness and MSHA's witness shows that the violations alleged
in Order No. 149242 occurred. The respondent does not contest
that the violations occurred and it asked for a hearing primarily to emphasize that its financial condition is not very

1608

good, and that it thought the assessments that should be made
should take that into consideration to a greater degree than
apparently was done by the Assessment Office.
Inasmuch as the violations are conceded as having
occurred, it is unnecessary for me to make any findings on
whether they occurred, because we can find by stipulation
that they did occur. It is, of course, necessary for me to
discuss the six· criteria in connection with the alleged
violations.
There were some stipulations made by the parties at the
outset of the hearing. One of those is that Margin Coal
Company is subject to the jurisdiction of the Act and that
respondent operates the No, 6 Strip Coal Mine. There was a
stipulation also that respondent at the time the violations
occurred would be considered a medium-sized company, but
because of certain facts that I shall discuss subsequently
the respondent could now be classified as a small. company.
The facts concerning respondent's financial condition
should be considered at the same time that we are considering
the size of the company. At the time these violations
occurred, respondent was selling coal under two contracts
with East Kentucky Power Company and South Carolina Gas and
Electric Company. Respondent was selling approximately
9,000 tons a month to both purchasers, but it lost its contract with East Kentucky in November of 1979, and its contract with South Carolina Gas and Electric in September of
1979. Since January of 1980, the company has sold only
69 cars of coal for a total of about 5,000 tons. Consequently, respondent's sales have gone down from about
9,000 tons a month to about 2,500 tons a month. Respondent
estimates that it costs about $21 a ton to produce coal and
yet the coal sold since January of 1980 has been sold for
from $20 a ton to $22.50 a ton, with some small amount of the
coal having been sold for as much as $31.50 a ton.
Those figures indicate that respondent is a marginal
operation at the present time. The evidence concerning
respondent's financial condition would, of course, have been
enhanced considerably if respondent had introduced some
documentary evidence in the form of income tax returns, or
profit and loss statements, or balance sheets, or something
to indicate its exact financial condition.
In addition to the facts which have just been noted, the
evidence shows that respondent is a subsidiary of Glasgow,
Incorporated, which is engaged in road construction. We do
not have in the record anything to show how much money

1609

Glasgow, Incorporated, makes on a yearly basis and since this
is a company which is owned by another one, I think it would
be improper for me to find that payment of penalties would
necessarily cause this company to discontinue in business.
Nevertheless, I think I should not ignore the fact that
the company is now operating one strip mine as opposed to the
six which were being operated at the time the order was
written or that it was employing 80 miners in May of 1978,
whereas it is now employing 24 miners.
So I think the evidence will support taking into consideration the fact that respondent is certainly a marginal
operation at the present time. And some consideration should
be given to both its size and financial condition. But I
don't think payment of even a fairly substantial penalty in
this particular instance would be the factor that would cause
it to discontinue in business. Nevertheless, the company's
inability to sell its coal readily is an item that-erodes the
profitability of the company at the present time,
The next criterion that ought to be considered is respondent's history of previous violations. In connection with
that, Exhibit P-4 lists some of the same violations that are
alleged in this case. All of the violations alleged in this
proceeding occurred on May 2, 1978. Since the violations
listed in Exhibit P-4 occurred on May 2, 1978, they either
are the same violations involved in this proceeding or they
are not previous violations. Exhibit 4 does not show that
there has been a previous violation of the sections of the
regulations which are involved in this case. Additionally,
there have been very few violations of any sections of the
regulations by this particular company. Therefore, any penalties assessed in this case should neither be increased nor
decreased under the criterion of history of previous
violations.
The next criterion to be considered is negligence.
According to respondent's testimony it did have a program
under which it did check with its employees on a periodic
basis to make sure that explosives were being handled in a
proper manner. This periodic checking was done about every
10 days, and respondent's witness said it had been done about
10 days before the violations here involved occurred. It
appears that the situation that occurred in this instance was
an isolated matter because none of these violations had previously occurred and it doesn't appear that any of them have
occurred since the order involved here was written on May 2,
1978. The testimony I have just discussed supports my finding
that the violations were the result of ordinary negligence.

1610

The major consideration in assessing penalties in this
case relates to the fact that the violations were very
serious. The inspector's order was issued under section 107(a)
which is the portion of the Act pertaining to imminent danger.
The violations are overlapping in some respects because they
all deal with failures to follow certain safety procedures
with respect to the handling of explosives, except for one
violation involving a fire extinguisher.
In order that my decision will be clear as to the criterion of gravity, it is necessary for me to discuss briefly
what.the alleged violations were that are described in imminent danger Order No. 149242.
The order first alleged a violation of section
77.1302(d). That section provides that other materials or
supplies shall not be placed on or in the cargo space of a
conveyance containing explosives. There are additional provisions in that subsection, but that is the primary portion
of the section which was violated. The violation of section
77.1302(d) was based on the allegation that was there was an
area between the cab of the truck and the first magazine
situated on the truck which contained twelve boxes of electric blasting caps. The blasting caps were piled in an area
where there were a metal box containing cans of oil, a metal
reel, an electric blasting cable, and a blasting battery.
The same conditions described above were also alleged by
the inspector to be a violation of section 77.1303(c), which
provides that substantial nonconductive, closed containers
shall be used to carry explosives, other than blasting
agents, to the blasting site.
The two violations were serious because it would have
been possible for the truck, which had to travel over rough
terrain, to cause this reel to bang against the mebal box and
produce a spark which might have ignited the blastin~-caps
which, in turn, could have set off a tremendous explosion of
the other explosives which were being transported on the
truck.
In view of the serious nature of this combination of violations, I find that a penalty of $1,000 should be assessed
for each ,violation of sections 77.1302(d) and 77.1303(c).
The next violation alleged in the inspector's order is
of section 77.1302(e). That section provides that explosives
and detonators shall be transported in separate vehicles
unless separated by four inches of hardwood or the equivalent.

1611

The inspector believed that section 77.1302(e) had been
violated because in the first magazine there were blasting
caps. In fact, the magazine contained 18 boxes of electric
blasting caps, one-half box of fuse caps, one box of primer
cord, Class A, _2,000 feet, and one box of primer cord,
Class C, 2,000 feet. The inspector's testimony indicates
that while those caps and primer cords should have been separated or should have been in different magazines, it was not
as likely that .they would have produced an explosion by themselves, since they were inside the magazine, as the materials
that were between the cab and the first magazine. Consequently, I find that the violation of section 77.1302(e)
should be assessed at $500.
The fourth violation was another violation of section
77.1303(c), which has to do, as I've indicated, with transporting explosives in something other than a nonconductive,
closed container. In this instance, the inspector cited a
second magazine which was directly behind the fir:~t- one.
The second magazine contained three boxes of 2-1/2 by 16
dynamite and was not lined on two sides with nonconducting
material. Here again, the inspector's testimony indicates
that the dynamite in the nonconductive magazine was not as
dangerous a source of explosion as the materials between the
cab and first magazine. Therefore, I conclude that a penalty
of $500 would be appropriate for that particular violation.
The final violation was of section 77.1110. That provision states that firefighting equipment shall be continuously
maintained in a usable and operative condition. The section
also provides that fire extinguishers are to be examined at
least once every six months and the date of such examination
is to be recorded on a permanent tag attached to the extinguisher.
The order states that the fire extinguisher on the
explosives truck was discharged and did not have an ~xamina
tion date. The inspector's testimony indicates in addition
to the things I have just discussed, that some oil had been
spilled on the truck bed, and he considered the likelihood
of a fire occurring as a potential hazard. He further
believed the fire extinguisher might well be the difference
between preventing a major explosion from any fire that might
start, and not having a major problem. So I would consider
that there might have been a larger degree of negligence in
connection with the discharged fire extinguisher than there
was with the way some of the explosives were hauled in the
truck. I conclude that a penalty of $300 is warranted in this
instance. I don't normally assess a penalty that large for

1612

failure to have a fire extinguisher, but I think the conditions described in the inspector's testimony requires that a
rather large penalty be assessed for that.
The total of all the penalties that I have assessed is
$3,300. In assessing that much, I am giving considerable
weight to the fact that the company's financial condition is
not very good at this time; otherwise, I would have assessed
a larger amount than I have.
I think I also overlooked discussing the good faith
effort to achieve rapid compliance. On that, there was a very
good effort made by respondent to achieve rapid compliance.
The order was written at 10:30 a.m. and the inspector wrote a
termination at 2 p.m. So the result was the company did immediately take care of the matter and restored its truck to a
very safe conditon in a short time. I've taken that into consideration in assessing penalties. Although I did not discuss
it at the beginning of the decision, I had it in mind when I
went off the record and prepared the specific assessments.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, respondent shall pay
penalties totaling $3,300.00 which are allocated to the respective violations as follows:
1,000.00
................... $ 1,000.00
................... 500.00
...................
................... 500.00
...................... 300.00
Total Penalties in Docket No. KENT 79-149 .............. $ 3,300.00

Order No.
Order No.
Order No.
Order No.
Order No.

149242 5/2/78 § 77 .1302(d)
149242 5/2/78 § 77 .1303(c)
149242 5/2/78 § 77 .1302(e)
149242 5/2/78 § 77 .1303(c)
149242 5/2/78 § 77.1110

~

e. ~-ra_f£__ ~

Richard C. Steffey ·~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
George Drumming, Jr., Esq., United States Department of Labor, Office
of the Solicitor, Room 280, U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Mr. Clinton Robbins, Superintendent, P.O. Box 156, East Bernstadt, KY
40729 (Certified Mail)

1613

FEDERAl M-JNE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 5 JUN 1990
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. KENT 79-4
Assessment Control
No. 15-04567-03002

Petitioner

v.

Fields Preparation Plant

ELY FUEL COMPANY,
Respondent

DECISION
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Mr. Frank Stewart, Pineville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 26, 1980, a hearing in
the above-entitled proceeding was held on April 23, 1980, in Barbourville,
Kentuc~y, under section 105(d) of the Federal Mine Safety and Health Act of
1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 37-43):
The Petition for Assessment of Civil Penalty was filed
in this proceeding on May 14, 1979, in Docket No. KENT 79-4.
The issues raised by any Petition for Assessment of Civil
Penalty are whether a violation occurred, and if so, what
civil penalty should be assessed based on the six criteria
set forth in section llO(i) of the Federal Mine Safety and
Health Act of 1977.
The citation involved in this case is No. 126517 and it
alleges a violation of 30 CFR 77.400. The condition or practice set forth in the citation which is Exhibit P-2 in this
proceeding, reads as follows: "Guards were not provided on
a conveyor beltline to haul the coal from the tipple to the
crusher and to the cars where men were exposed to the hazard
while the tipple was being operated."

1614

The testimony ~f-both respondent's witness and the
inspector indicated that the condition or practice, as I have
just quoted it from the citation, was somewhat inexact in that
what the inspector really was citing was the failure of the
company to have a guard at the tailpiece of the conveyor belt
which transported coal from the tipple to the railroad cars.
The inspector's testimony showed there were guards on
another conveyor belt and that the only place there was a
lack of guard was at this tailpiece. The testimony of both
respondent's witness and the inspector indicates that a violation of section 77.400 occurred because there was not a guard
at this tailpiece. Section 77.400 does provide that gears,
sprockets, chains, drives, head, tail, and take-up pulleys,
flywheels, couplings, shafts, sawblades, fan inlets, and
similar exposed moving machine parts which may be contacted
by persons and which may cause injury to persons shall be
guarded. Having found that a violation of section 77.400
occurred, I must now assess a civil penalty based on the
six criteria which I have just mentioned.
ness.

The first criterion is the size of the operator's busiIt has been stipulated that this is a small company.

The second criterion is whether the payment of penalties
would cause respondent to discontinue in business. I t has
been stipulated that payment of penalties would not cause
respondent to discontinue in business.
The third criterion is the history of previous violations.
There was submitted as Exhibit P-1 in this proceeding a computer printout which indicates respondent has not previously
violated section 77.400. It has been my practice in all of·
my decisions to increase a civil penalty otherwise assessible
under the other five criteria if I find that respondent has
violated the same section of the regulations which is involved
in the case before me. Inasmuch as there has been no previous
violation of section 77.400, I find that the penalty should
neither be increased nor decreased under the history of previous violations brought to my attention in this proceeding.
The fourth criterion is whether the respondent demonstrated a good faith effort to achieve rapid compliance after
being advised of the violation of section 77.400. The inspector's citation gave the respondent a period of approximately
two weeks, or from November 27, 1978, to December 11, 1978,
within which time to correct the violation.

1615

The inspector-testified that he went back on December 11,
and found that the guard had been installed. Artd he therefore
terminated the violation as shown in Exhibit P-3. The inspector did not know whether the respondent had corrected the
violation quite a few days before the expiration of the time
which had been given,
Respondent's witness testified that on the same day the
citation was written, that is, November 27, 1978, he ordered
from J, R, Hoe ·and Son, the company which built the tipple
which they were using, a guard for this tailpiece. The
guard became available on the next day which would have
been November 28, 1978, and respondent picked up the guard
on November 28, and installed it the next day; which would
mean that he achieved compliance within 3 days, although
respondent had been given about 2 weeks to achieve compliance, I find under those conditions that that was an outstanding effort to achieve compliance and that the respondent
should be given considerable credit for that rapid compliance
in the assessment of a penalty.
We come to the question of negligence and the former
Board of Mine Operations Appeals has held that a company is
absolutely required to be aware of all safety regulations.
So any time a company fails to comply with a regulation, even
if it is one that he says he didn't know about, the law still
says he should have known about it,
So I must necessarily find that there was ordinary negligence in the failure to have the guard on the tailpiece,
There are some extenuating circumstances however. For
example, Mr. Smith, the respondent's witness and who was
foreman of this tipple, stated that he had operated an older
tipple at the same site for 23 years and during that period
of time he did not have a guard on this tailpiece and yet he
was not cited for failure to have a guard, And he said if he
had known he was supposed to have a guard he.would certainly
have had one on there, So while I'm finding and must .. find
there was ordinary negligence, I am taking into consideration
that the respondent does have an excellent attitude toward
safety and that he did operate for a long period of time
under the erroneous impression that this particular tailpiece
did not have to be guarded,
We come now to the criterion of gravity. There are quite
a few extenuating circumstances on that. It is true as the
inspector testified that it would be possible for a person to
become caught in a pulley or wheel driving a belt and a person
could lose a hand that way, and I suppose a person could even

1616

- . - --

be killed. So there's no doubt that any time there is an
unguarded wheel that it's a possibility that someone could be
injured.
So we have to find that this was a moderately serious
violation. Of course, I am taking into consideration the fact
that respondent's witness stated that the tailpiece is always
deenergized when any greasing is done around the tailpiece.
According to res.pondent' s testimony the fact that this was a
new tipple meant there would be very little coal spilled at
this area, and there would be very few times and it would be
a long period between times, when any cleaning around the
tailpiece would be necessary. The inspector indicated that
he saw no need for any cleaning to be done on the day the
citation was written.
Under those circumstances, while the violation was
moderately serious the fact remains there would be few times
when anyone could be exposed to injury here, because people
are very rarely in this area when the tailpiece is running.
Finally, it should be noted that respondent has been operating a tipple for 23 years and has never had an accident,
according to respondent's testimony.
With all those extenuating circumstances, I find that a
penalty of $25.00 is appropriate.
WHEREFORE, it is ordered:
Within 30 days after the date of this decision, respondent shall pay a
civil penalty of $25.00 for the violation of 30 C.F.R. § 77.400 alleged in
Citation No. 126517 dated November 27, 1978.

~ c.~Zifht--

Richard c. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Frank Stewart, P.O. Box 386, Pineville, KY 40977 (Certified Mail)

1617

FED~RA~-~JNE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52a.1 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

! !i JU~ 19BO
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Docket No. PIKE 79-119-PM
Assessment Control
No. 15-09703-05002 F
Belleview Plant

EATON SAND & GRAVEL COMPANY,
Respondent
DECISION
Appearances:

George Drunnning, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
David P. Faulkner, Esq., Benjamin, Faulkner, Tepe and
Sack, Cincinnati, Ohio, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 21, 1980, a hearing in
the above-entitled proceeding was held on May 13, 1980, in Cincinnati, Ohio,
under section 105(d) of the Federal Mine Safety and Health Act of 1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 61-72):
The Petition for Assessment of Civil Penalty in this
proceeding was filed on June 15, 1979, in Docket No. PIKE
79-119-PM, seeking assessment of a civil penalty for an
alleged violation of 30 C.F.R. § 56.3-5 by Eaton Sand &
Gravel Company. In a civil penalty proceeding the issues
are whether a violation of a mandatory health and 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 Federal Mine Safety and Health Act of 1977.
I shall make some findings of fact upon whic.h my decision
will be based. The findings will be set forth under
numbered paragraphs.
1. On April 20, 1978, inspector John Hawkins was asked
to go to the Belleview Plant of Eaton Sand & Gravel Company

1618

to investigate the occurrence of an accident at that location. Upon ar-rivai: ·ttrere-, the inspector first talked to
some people in respondent's office and then proceeded to
the site of the accident.
2. The accident resulted when a front-end loader had
broken down because of a problem with the universal joint
and drive shaft so that the front-end loader could not be
moved. A foreman, by the name of Robert Marcum, was advised
by the operator of the end loader of its inoperable condition. Whereupon, the foreman ordered some replacement parts
and proceeded down to the pit area to do some preliminary
work on the end loader. At that time another employee, by
the name of David Kelly, crawled under this machine and
Mr. Marcum was in a position which situated his body between
the two wheels of the machine, whereas Mr. Kelly was entirely
under the machine and parallel with the wheels. After they
had been working for a period of time, some material fell
from the highwall and struck the bucket of the front-end
loader, pushing it backwards so that Mr. Kelly, being
entirely under the mahcine, was not hit by the·wheels, but
causing the end loader to come to rest on top of Marcum's
body.
3. Other employees raised the bucket on the end loader
so as to take the pressure of the wheel off of Mr. Marcum's
body. He was taken to the hospital. Although he was alive
when he arrived at the hospital, he died later that evening,
approximately at 7:30 p.m. It is alleged by one of the witnesses in this proceeding, Mr. Setters, that he talked to
Mr. Marcum on the way to the hospital. At that time,
Mr. Marcum took full responsibility for what had happened,
and said that he was at fault in not proceeding in a safe
way to work on the equipment.
4. Inspector Hawkins issued an order and citation on
April 20, 1978, after he had discussed the accident ·and
collected the facts cited above. His Order No. 107451
alleges that a violation of section 56.3-5 occurred because
two men had worked on the front-end loader near the pit wall.
The facts set forth above show that a violation of section 56.3-5 occurred because that section provides that "Men
shall not work near or under dangerous banks. Over-hanging
banks shall be taken down immediately and other unsafe
ground conditions shall be corrected promptly, or the areas
shall be barricaded and posted." The testimony in this proceeding shows that Mr. Marcum did work on the machine in
association with another employee without pulling it back
from the highwall.

1619

Re8..p_onc;lent 1-S -t-estimony in this proceeding shows that
respondent's General Manager, Mr. Roads, did instruct
Mr. Marcum to pull the inoperable front-end loader back
from the highwall before any work upon it was done. It is
alleged that another front-end loader and a iength of chain
were taken to the pit area. It is asstnned by the company
and its employee, who testified in this proceeding, that
Mr. Marctnn intended to comply with the instructions to use
the chain and other loader to pull the inoperable loader
back from the highwall before any work on it was done.
It is also asstnned that because Mr. Marcum was a nervoustype individual, that he went about this repair work in a
very rapid manner as he was accustomed to doing all of his
tasks. It is further asstmled that when Mr. Marctnn saw
Mr. Kelly already under the machine, or about to get under
it again after he already had taken bolts out of the drive
shaft area, that Mr. Marcum decided to go ahead and work on
the machine without pulling it back.
Even though Mr. Marcum was instructed to p;ll the
machine back, the fact remains that it was not pulled back
and work was undertaken while it was in a hazardous position.
In short, the facts show that there was a violation of section 56.3-5. After a violation of a mandatory safety standard is found to have occured, the Act provides that a
penalty shall be assessed.
In doing so, it is necessary that I consider six criteria. We have had stipulations of facts in this proce,eding
with respect to several of those criteria.
The first stipulation is that respondent is a small
operator and that respondent had about nine employees at the
Belleview Plant. Therefore, under the criterion of the size
of respondent's business any penalty assessed in this proceeding should be in a low range of magnitude to the extent
that size governs the penalty. It was also stipulated that
respondent would not be caused to discontinue in b~siness if
a penalty were assessed in this proceeding.
As to the criterion of history of previous violations,
there was introduced as respondent's Exhibit P-1, a two-page
computer printout which shows that respondent has only been
cited for two violations prior to May 20, 1978. Neither of
those prior violations was of the section which has been
found to have been violated in this proceeding. Therefore,
no part of the penalty assessed in this proceeding will be
based on the history of respondent's previous violations.

1620

It was·testiffi~d-oy the inspector that respondent
showed an extraordinary good faith effort to achieve rapid
compliance in that the employees were immediately assembled
and a lecture or instructions were given to them about safety
matters, particularly the necessity of putting equipment in
a safe place away from the highwall before work is done upon
it. Therefore, that criterion will be given full consideration in the assessment of the penalty.
The next two criteria are the most important ones in
assessing penalties, apart from the criterion of size of
respondent's business. There is no doubt but that the violation was very serious. Any time equipment is repaired
close to a highwall, such ·as the one here involved, there
is always a possibility of material falling. That was
pointed out in the inspector's testimony in this proceeding,
because he stated that the material here is a combination
of rock and sand which is sufficiently soft to be susceptible to production entirely by a front-end loader. As
the front-end loader digs into the base of the wall, the
rock and sand crumble so as to form a slope. The wall is
not sufficiently stable to produce overhanging material at
the top of the wall. In other words, the wall has a ten~
dency to crumble on a sort of continuous basis. Anytime
equipment is left close to such a highwall when work is to
be done on it, those who do that work must know that they
are placing themselves in a hazardous position. Therefore,
under the criterion of gravity, a high penalty should be
assessed to the extent that a small operator is able to pay
large penalties.
Then we come to the final criterion on negligence.
Respondent's primary defense in this case is that it was
not very negligent, or was not negligent at all. The
defense under that criterion is primarily based on the fact
that the general manager of the plant, Mr. Roads, did
instruct Mr. Marcum, the deceased, to move the inoperable
piece of equipment back from the highwall before any work
was done on it • . Despite those instructions, for reasons
that only Mr. Marcum knows or knew, the equipment was not
pulled back. It was Mr. Marcum's failure to carry out
his instructions that the accident occurred and that
Mr. Marcum's death resulted. We pass then to the question
of whether an employee's failure to ·carry out his supervisor's specific instructions makes the negligence to be
attributed to the operator any less severe than it would
be if he simply failed to comply with an on-going and
routine safety rule.
The facts in this proceeding are almost identical to a
case decided by the Federal Mine Safety and Health Review

1621

Commission early this year in Secretary of Labor v.
Consolidation Coal Company, 2 FMSHRC 3 (1980). In that case,
the Commission affirmed an administrative law judge's decision assessing a·maximum penalty of $10,000 for a violation
of section 77.1006 which prohibits persons from working near
a dangerous highwall unless they are there to correct unsafe
conditions. A foreman-trainee in that instance was killed
by a landslide wh_en he and the assistant superintendent were
working near a spoil bank at which time a landslide occurred.
The instant case is also similar to the facts in another
case decided by the Commission this year in Secretary of Labor
v. Ace Drilling Company, Inc., 2 FMSHRC 790 (1980). In that
case, the Commission stated that a foreman's failure to make
sure a front-end loader was free of defects before putting
it into service was a failure attributable to the operator
as the foreman acts for the operator. Additionally, the
Commission held that liability under the Act is not conditioned upon fault. Two other caess, U.S. Steel Corp:~1 FMSHRC 1306 (1979), and Peabody Coal Company, 1 FMSHRC
1494 (1979), decided by the Commission, would require that
respondent be held fully liable in this proceeding under· the
criterion of negligence.
As in the Consolidation case cited above, Mr. Marcum's
failure to carry out his instructions could have resulted in
the death of Mr. Kelly, the employee whom he was supervising,
just as easily as it resulted in his own death. And, if
Mr. Kelly, instead of Mr. Marcum, had been killed, Mr. Marcum
would have been held responsible and the company would have
been equally liable. Under the Act, as the Commission has
stated, an operator's liability is not conditioned upon
fault. He is required to see that violations do not occur
and if violations do occur, he is held liable. When it comes
to making a finding as to the criterion of negligence, there
is no doubt but that respondent was guilty of a high degree
of negligence in this case because of its foreman's failure
to carry out his instructions.
When it comes to assessment of a penalty, however, I ~m
still required to consider the fact that we are dealing with
a small operator. In the Consolidation case, supra, where
the judge assessed a penalty of $10,000 for an almost identical violation, that company was one of the largest coal
companies in the United States. I think that a maximum penalty for such a company is justified, but, in this instance,
because a small company is involved, I believe a penalty of
$3,000 is appropriate.

1622

WHEREFORE, ".it is-- ord-ered:
Within 30 days from the date of this decision, respondent shall pay a
civil penalty of $3,000.00 for the violation of section 56.3-5 cited in
Order No. 107451 dated April 20, 1978.

~ c. rz!o/j

.

Richard c. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

George Drunming, Jr., Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280-U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
David B. Faulkner, Esq., Attorney for Eaton Sand & Gravel Company,
Benjamin, Faulkner, Tepe and Sack, 1500 Central Trust Tower,
Cincinnati, OH 45202 (Certified Mail)

1623

FEDERA~ ~JN,E_SAEETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Cl3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

I 5 JUN 7980

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. BARB 78-420-P
Assessment Control
No. 15-02502-02019

Petitioner

v.
SHAMROCK COAL COMPANY,

No. 18 Mine
Respondent
DECISION APPROVING SETTLEMENT

Appearances:

George Drumming, Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Neville Smith, Esq., Manchester, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 26, 1980, a hearing in
the above-entitled proceeding was convened on April 22, 1980, in Barbourville,
Kentucky, under section 105(d) of the Federal Mine Safety and Health Act of
1977.
Instead of presenting evidence with respect to the 14 violations alleged
in the Petition for Assessment of Civil Penalty, counsel for the parties entered
into a settlement agreement under which respondent agreed to pay penalties
totaling $1,203 instead of the total penalties of $1,805 proposed by the
Assessment Office.
Counsel for the parties entered into the following stipulations (Tr. 3-

4):
(1) Respondent, Shamrock Coal Company, is subject to
the jurisdiction of the Act.
(2) Respondent operates a coal mine designated as
No. 18 Mine.
(3) The inspector, Mike Detherage, is a duly authorized
representative of the Mine Safety and Health Administration
and in his official capacity inspected the No. 18 Mine in
August and September of 1977.

1624

(4) Respondent was properly issued the citations in
question.
(5)

Respondent is a large operator.

(6) The history of prev.ious violations is reflected by
the computerized history of previous violations and is
designated as Exhibit P-1. That history was considered by
the Assessment.Office in determining its proposed assessments.
The reductions in the proposed assessments under the parties'
settlement agreement were made on the basis of the criterion
of gravity and do not affect any amount derived under the
criterion of history of previous violations.
(7) All of the violations were the result of ordinary
negligence.
(8) Respondent demonstrated a normal good faith effort
to achieve compliance with respect to all of the violations.
(9) The ability of respondent to continue in business
will not be adversely affected by the payment of the negotiated penalty amounts.
The parties' stipulations set forth above show consideration of five of the six criteria in section llO(i). The one
criterion remaining to be evaluated is that of gravity which
will be discussed below as each of the violations is individually considered.
Notice No. 2 MDF (7-110) 8/22/77 § 75.316
The first one is No. 7-110 alleging a violation of section 75.316. The assessed amount was $125; the negotiated
amount is $100, and that reduction is based on the fact that
only 60 percent of the water sprays were inoperative on the
continuous-mining machine. A certain amount of water was
still sprayed on the coal so that some of the dust was alleviated. Any immediate harm was not great and any injury that
might result from the violation would be related to a miner's
possible exposure to respirable dust over a period of time
sufficient for a miner to contract pneumoconiosis. Exposure
to respirable dust was not great at the time the notice was
written (Tr. 4-5).
Notice No. 2 MFD (7-112) 8/23/77 § 75.302
No. 7-112 alleged a violation of section 75.302. The
Assessment Office proposed a penalty of $125 and respondent
agreed to pay the full proposed amount of $125. No methane

1625

was detected in the immediate return in an air sample bottle,
but a minute amount of methane was detected at the face with
a handheld methane detector. Because of the seriousness
attributed by the inspector to the existence of any amount
of methane, respondent agreed to pay the full proposed penalty of $125 (Tr. 5).
Notice No. 5 MFD (7-113) 8/23/77 § 75.514
No. 7-113 alleged a violation of section 75.514. The
Assessment Office proposed a penalty of $140 and respondent
agreed to pay a penalty of $110 because the gravity of the
violat1on was reduced by the fact that the equipment was
provided with ground pr~tection, ground monitoring and an
instantaneous circuit breaker for any overload or undercurrent (Tr. 6).
Notice No. 6 MFD (7-114) 8/23/77 § 75.1704-2(d)
- ---

No. 7-114 alleged a violation of section 75.1704-2(d).
The Assessment Office proposed a penalty of $98 and respondent agreed to pay the full amount proposed. There was no
up-to-date map posted in the section. Although an up-to-date
map had been provided in the mine office, there was not one
posted in the section as required by the regulations (Tr. 6).
Notice No. 2 MFD (7-116) 8/24/77 § 75.316
No. 7-116 alleged a violation of section 75.316. This
notice relates in part to the very first violation alleged in
Notice No. 7-110 discussed above. The penalty proposed by
the Assessment office for the instant violation was $170 and
respondent has agreed to pay a penalty of $140. A higher
penalty for the instant violation of section 75.316 than was
agreed upon for the violation of section 75.316, alleged in
Notice No. 7-110, is justified because a greater amount of
dust existed on August 24, 1977, when Notice No. 7-lt6 was
written than existed on August 22, 1977, when Notice No. 7-110
was written (Tr. 6-7).
Notice No. 3 MFD (7-117) 8/24/77 § 75.400
No. 7-117 alleged a violation of section 75.400. The
gravity here was reduced by the fact that no ignition source
was immediately present in the area. The inspector said that
if there had been an ignition source, he would have issued a
withdrawal order. The inspector did not consider the violation
to be as serious as the Assessment Office had when it proposed
a penalty of $120. Respondent has also made note of the fact
that the area had been rock dusted. Because the presence of the

1626

rock dust also' reaucea- ilie explosive possibility associated with
the violation, counsel for the Secretary stated that he had
agreed to accept respondent's offer of a reduced penalty of $90
(Tr. 7).
Notice No. 4 MFD (7-118) 8/24/77 § 75.400
No. 7-118 also alleged a violation of section 75.400.
The Assessment Office proposed an amount of $110 and respondent
agreed to pay a penalty of $90. Counsel for the Secretary agreed
to accept respondent's offer as appropriate because, although
the accumulation existed in a small area measuring only 3 by
2 feet, the accumulation was observed in a starter box where an
ignition source was located in close proximity to the accumulation (Tr. 8).
Notice No. 6 MFD (7-120) 8/24/77 § 75.603
No. 7-120 alleged a violation of section 75.603. The
Assessment Office proposed an amount of $110 and respondent
has agreed to pay a reduced penalty of $100. Although each
wire had been insulated, each wire had not been insulated
against moisture to the extent that the other part of the
cable had originally been insulated. Nevertheless, the
violation was only moderately serious because there was
ground protection, ground monitoring and instantaneous circuit breakers for overload or undercurrent protection
(Tr. 8-9).
Notice No. 1 HS (7-123) 8/24/77 § 75.316
Notice No. 2 HS (7-124) 8/24/77 § 75.316-1
With respect to the two violations alleged in Notice
Nos. 7-123 and 7-124, counsel for the Secretary moved to
withdraw the Petition for Assessment of Civil Penalty, to
the extent that civil penalties are sought for the violations alleged in those notices because the notices were __
written by an inspector who is no longer available to
testify in support of the alleged violations. Since the
Secretary's counsel did not think that he could prove that
the violations had occurred, his request to withdraw the
Petition as to Notice Nos. 7-123 and 7-124 is hereinafter
granted (Tr. 10).
Notice No. 1 MFD (7-125) 9/13/77 § 75.515
No. 7-125 alleged a violation of section 75.515 for
which the Assessment Office proposed a penalty of $145.
Respondent has agreed to pay a reduced penalty of $110.

1627

Although £fie vioiation involved high voltage which could
have caused a serious shock hazard, there existed
ground protection, ground monitoring, and instantaneous
circuit breakers for overload and undercurrent protection.
Counsel for the Secretary also believed a reduction in the
proposed penalty was justified because the procedures which
respondent was following had previously been acceptable, but
were rendered illegal by an interpretive MSHA memorandu.n
written in early 1977. The inspector wrote Notice No. 7-125
on the basis of that memorandum (Tr. 10-11).
Notice No. 2 MFD (7-126) 9/13/77 § 75.1710
No. 7-126 alleged a violation of section 75.1710 for which
the Assessment Office proposed a penalty of $130. Respondent
has agreed to pay a reduced amount of $100. The circumstances
warranting a reduction in the penalty were that a canopy had
been removed from a machine while it was located in an area
which was so low that no canopy was required. When the section
progressed beyond the low area into a height wheri:f a canopy was
again required, the miners failed to reinstall the canopy.
Counsel for the Secretary has agreed to accept respondent's
offer of a reduced penalty because the mine roof was sound and
did not appear to have exposed the machine operator to a rooffal l hazard (Tr. 11-12).
Notice No. 3 MFD (7-127) 9/13/77 § 77.205(a)
No. 7-127 alleged a violation of section 77.205(a) for which
the Assessment Office proposed a penalty of $170 and for which
respondent has agreed to pay a reduced penalty of $140. Although
no miners were stationed near the loose materials on the highwall,
the miners did pass by the area when they walked to the place
where their cars were parked. Since no miners were exposed to
the highwall on a continuous basis or at a time when their attention would be directed to work which might make them unaware of
any materials that might fall into the travelway, the Secretary's
counsel believed that a reduction in the proposed penalty was
justified (Tr. 12-13).
Notice No. 2 MFD (7-130) 9/26/77 § 75.312
The last notice, No. 7-130, alleged a violation of section
75.312 for which the Assessment Office proposed a penalty of
$170. Counsel for the Secretary moved to withdraw the Petition
for Assessment of Civil Penalty insofar as it seeks assessment
of a penalty for the alleged violation of section 75.312 because
he said that section pertains to ventilation of a working place,
whereas the area cited in the notice involved active mine
workings. Inasmuch as the Secretary's counsel believed that
the violation had been improperly cited, his request to with~
draw the Petition with respect to the violation cited in
Notice No. 7-130 is hereinafter granted (Tr. 13-14).

1628

I find that counsel-for-respondent and the Secretary gave satisfactory
reasons for approval of the penalties agreed upon in their settlement conference
and that the settlement agreement hereinbefore discussed should be accepted.
Summary of Assessments
Based on the parties' settlement agreement, the following civil penalties
should be assessed:

...................

Notice No. 2 MFD (t-110) 8/22/77 § 75.316
$
100.00
Notice No. 2 MFD (7-112) 8/23/77 § 75.302
125.00
110.00
Notice No. 5 MFD (7-113) 8/23/77 § 75.514
98.00
Notice No. 6 MFD (7-114) 8/23/77 § 75.1704-2(d) • ••••••••••••
Notice No. 2 MFD (7-116) 8/24/77 § 75.316 • • • • • • • • • • • • • • • • • 41.
140.00
90.00
Notice No. 3 MFD (7-117) 8/24/77 § 75.400 •••••••••••••••••••
90.00
Notice No. 4 MFD (7-118) 8/24/77 § 75.400
100.00
Notice No. 6 MFD (7-120) 8/24/77 § 75.603
110 .oo
Notice No. 1 MFD (7-125) 9/ 13/7 7 § 75.515
100.00
Notice No. 2 MFD (7-126) 9/13/77 § 75.1710
140.00
Notice No. 3 MFD (7-127) 9/13/77 § 77 .205(a) • • • • • • • • i • • • • • • •
Total Settlement Penalties in Docket No.
BARB 78-420-P
$1,203.00
•

• • • • • • • • • • ii • • • • • • •

• • • • • • • • • • • ii • • • ii • • •

•

•

•

. . . . . . ii • • ii • • • • • • • • •

ii • • • • • • • • • • • ii • • • •

• • • • • • • • • • • • ii • • • • ~.

oo•ooo•ooooo•oo~OA

··························-·············

WHEREFORE, it is ordered:
(A) The parties' request for approval of settlement is granted and the
settlement agreement submitted in this proceeding is approved.
(B) Pursuant to the parties' settlement agreement, respondent shall,
within 30 days from the date of this decision, pay civil penalties totaling
$1,203.00 as set forth in the paragraph under "Summary of Assessments" above.

(C) The request by the Secretary's counsel to withdraw the Petition for
Assessment of Civil Penalty in Docket No. BARB 78-420-P to the extent that it
sought assessment of civil penalties for the violations listed below is granted:
Notice No. 1 HS (7-123) 8/24/77 § 75.316
Notice No. 2 HS (7-124) 8/24/77 § 75 .316-l
Notice No. 2 MFD (7-130) 9/26/77 § 75.312

~ (J, r;J±-l'd ..

Richard c. Steffey ~
Administrative Law Judge
(Phone: 703-756-6225)

1629

Distribution:
George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Neville Smith, Esq., Attorney for Shamrock Coal Company, P.O. Box 441,
Manchester, KY 40962 (Certified Mail)

1630

FEDERA°l.-MINE S-AFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 5 JUN 1980
UNITED STATES STEEL CORPORATION,
Contestant
v.

Contest of Citation and Order

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket Nos.

Citation or
Order No.

Date

WEVA 79-343-R
WEVA 80-81-R

655331
655316

7/12/79
10/2/79

Respondent
Gary District No. 2 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (~SHA),

Civil Penalty Proceeding
Docket No. WEVA 80-290
Assessment Control
No. 46-01419-03026 V

Petitioner
v.

Gary District No. 2 Mine

UNITED STATES STEEL CORPORATION,
Respondent

DECISION
Appearances:

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for
Contestant;
David Street, Esq., Office of the Solicitor, U.S. Department
of Labor, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to an order dated February 28, 1980, as amended April 7, 1980,
a hearing was held with respect to the issues raised in Docket No. WEVA
79-343-R on April 15, 1980, in Charleston, West Virginia, under section
105(d) of the Federal Mine Safety and Health Act of 1977.
Docket No. WEVA 79-343-R
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 164-174):
The proceeding in Docket No. WEVA 79-343-R is based on a
Notice of Contest of Citation No. 655331, and that Notice of
Contest was filed on August 13, 1979.

1631

I shall make a few findings of fact in the numbered
paragraphs set forth below:
1. On July 12, 1979, Inspector Robbins traveled to the
No. 2 Mine of United States Steel Corporation. He first went
to the 011 Section and observed that there were some wide
areas in the shuttle-car roadway. He made four,measurements
and found that the measurements ran from 17 feet at the narrowest place to 21 feet at the widest place. He thereupon
wrote Citation No. 655331 citing the operator for failure to
follow his roof-control plan.
2. On page 21 of the roof-control plan, there is a provision which states, "In areas where the width of the openings exceeds 18 feet, at least one row of posts shall be
installed on either side on not more than 5-foot centers
lengthwise, limiting the width of the roadways to 16 feet
for one full pillar outby the pillar being mined."-3. The inspector testified that he felt the company was
aware of the provision in its roof-control plan, and that it
had failed to follow this provision; therefore, he felt it
was an unwarrantable failure on the part of the company to
comply with its roof-control plan. The inspector allowed an
extremely long time for termination of the citation because
he was scheduled to go for some training, and he knew that a
considerable amount of time would elapse before he would be
able to return to the mine to terminate the citation; therefore, he gave the company until August 6, 1979, within which
to abate a citation which was written on July 12, 1979.
The company actually had installed the posts almost immediately after the inspector wrote his citation. The actual
termination of the citation was written on August 7, 1979,
and was received in evidence as Exhibit M-5. The company did
demonstrate a good faith effort to achieve rapid compliance.
The extremely long time that was given for compliance was
related to the inspector's obligations rather than to the
period of time it took to comply with the citation.

4. The inspector conceded during his testimony that
MSHA has a specialist by the name of Si Gaspersich who primarily assists or confers with operators concerning the
occurrence of mountain bumps in their mines. Inspector
Robbins indicated that he had discussed the question with
Mr. Gaspersich about the occurrence of mountain bumps in the
No. 2 Mine, but no one advised the inspector that the roofcontrol plan should be waived to the extent that it might be
advisable not to install posts in the roadway in a mine in
which mountain bumps occur.

1632

5. The company's witnesses have testified that they had
an understanding with Mr. Gaspersich that it was unnecessary
to install posts in a roadway to narrow it down to 16 feet
because to install posts in a mine in which mountain bumps
may occur increases the hazard to the miners by converting
the posts into projectiles in case a mountain bump should
occur. In general, a mountain bump has been described as a
sudden outburst of coal from ~he ribs when pressures from
the roof become so great that the coal is suddenly forced
from the rib and into the roadway or entry.
·I think that the above paragraphs are sufficient in the
way of basic findings of fact. We have here under review a
citation written under· section 104(d)(l) of the 1977 Act. In
order to support a citation under that section of the Act, an
inspector must first of all determine that no imminent danger
exists; and I am sure the testimony indicates that there was
no imminent danger in the roadway.
If the inspector then finds there is no imminent danger,
he is, of course, supposed to find that a violation occurred.
On that question, I do not think there is any doubt but that
a violation did occur because an operator is required to
submit and follow a roof-control plan under section 75.200 of
the regulations. And it is undisputed that the roof-control
plan did require the installation of posts to narrow the
entry down to 16 feet if areas existed which were 18 feet or
more in width.
Testimony was given by Mr. Dalton, who was the section
foreman on the evening shift from 4 p.m. to midnight on the
shift preceding the day shift on which the inspector wrote
Citation No. 655331. Mr. Dalton testified that he had
stepped off the width of the roadway on his shift and that he
did not find any areas that were in excess of 18 feet. I
believe that I will have to take the inspector's statement
that he measured these areas and found them to be in excess
of 18 feet, because I think Mr. Dalton could easily have made
a mistake of a couple of feet in stepping off an entry; and I
do not think that I can accept an estimate as compared with
an actual measurement, especially when the mine foreman,
Mr. Blevins, agreed that the inspector had measured an area .
which was 21 feet wide at the most outby area of this roadway.
Now, the next step the inspector must take is that he
must find the failure of.the company to comply with this provision in the roof-control plan on page 21 is an unwarrantable failure. The former Board of Mine Operations Appeals,
after having been reversed for some of its holdings on the
strictness of the requirements for making a determination of ·

1633

unwarrantable failure in International Union v. Kleppe,
532 F.2d 1403 (D.C. Cir. 1976), cert. denied, 429 U.S. 858,
held in Alabama By-Products Corp~ion, 7 IBMA 85 (1976),
that the finding of significant and substantial in an unwarrantable failure notice can be made so long as the inspector
finds that something other than a technical violation has
occurred. The Board said that the violation did not have to
involve even serious bodily harm, much less the threat of
death.
So, in the situation that prevailed at the time Citation
No. 655331 was issued, under the Board's rationale in the
Alabama By-Products case, the violation could be found to be
significant and substantial because the inspector said the
ribs showed there was weight being applied to them by the
roof and that he felt in such circumstances that the roadway
could not be considered safe until the supports had been _
installed. The Alabama By-Products case primarily corisldered
the conditions under which a violation may be found to be
significant and substantial.
The former Board in Zeigler Coal Company, 7 IBMA 280
(1977) at pages 295 to 296, stated that an unwarrantable
failure can be defined as a condition or practice occurring
which the operator knew or should have known existed and
which it failed to correct because of a lack of due diligence
or because of indifference or lack of reasonable care. The
Board stated in that same decision that the inspector's
judgment in this regard must be based on a thorough investigation and must be reasonable.
The roof-control plan which was in effect at the time
the citation was written and which is Exhibit M-4 in this
proceeding, provides that changes shall not be made in the
mining system until the plan has been revised accordingly,
so I am confronted with the fact that Mr. Dalton, who is the
section foreman on the evening shift, stated that he knew
that provision about the narrowing of the haulageway to
16 feet in areas in excess of 18 feet when encountered; and
I am confronted with the testimony of Mr. Blevins, the mine
foreman, who said he had not instructed the foremen or the
miners to ignore the provision of the roof-control plan so
that they could omit the installation of posts if the area
were greater than 18 feet.
So, there is no doubt the company knew what the plan
required; the company's own evidence shows that. Still these
particular posts had not been installed, and Mr. Blevins
stated that in his opinion the 21-foot area did not really
look 21 feet wide and that he thought Inspector Robbins had

1634

been pretty strict in measuring this area at the widest
places and coming up with areas that were in excess of
18 feet, because in his opinion the roadway just did not
look 18 feet wide.
Now, I think the company has presented some very appealing testimony which shows that Mr. Gaspersich had told the
company that it was, in his opinion, hazardous to install
these posts, particularly since the company rarely had an
area wide enough to require the posts. As far as that goes,
the inspector himself said that in periods prior to July 12,
1979, he had not seen any areas which appeared to be 18 feet
or wider and therefore this was the first time he had encountered the failure to install the posts.
The courts have indicated that an inspector's findings
should not be sustained only if it can be found that the
inspector clearly abused his discretion. I cannot conclude,
in view of the fact the roof-control plan does contain a provision requiring the roadway to be narrowed down to 16 feet
in case there are areas that are 18 feet or more in width,
that it is an abuse of discretion on his part to find it was
unwarrantable failure when one takes into consideration the
rather mild situations that have to prevail before an
unwarrantable failure can be found to exist.
Now, counsel for contestant has stressed the fact that
the inspector was actually requiring them to put up these
posts in a shuttle-car runway which would not have been used
except for about 15 or 20 minutes to mine a final pushout in
the pillar which was then being recovered. The fact remains
that the shuttle car runway would have been used at least for
that period of time; and just as the operator cannot be sure
when a mountain bump will occur, neither can the inspector be
sure when a piece of roof will fall.
So, without an amendment to the roof-control plan permitting the company to have wider areas than 18 feet without
I
•
•
installing posts, I cannot find that the inspector abused
his discretion in this instance.
I perhaps should also discuss the fact that there was
identified as Exhibit M-6 in this proceeding a roof-control
plan which was in effect in August 1976; under that plan the
company had some provisions which enabled it to take into
consideration mountain bumps, but those provisions were
removed from the plan in 1978, after a fatality occurred in
which a miner was killed after being struck by a piece of
rock which fell from the rib. Also, I should note the

1635

present plan ~~s -revised so that those provisions no longer
are in the plan and were not in the plan on the day the
citation was issued.
There was testimony by the company's chief mine inspector, Mr. Dickinson, to the effect that within the last
6 weeks or month, a provision has been submitted to MSHA
under which the roof-control plan would be amended to permit the company tq have a roadway 20 feet wide before it is
necessary to install posts to narrow the entry down to
18 feet, but that particular amendment has not been put in
writing yet and, of course, was not a part of the roofcontrol plan on July 12, 1979, when Citation No. 655331 was
written.
For the reasons given above, I find that Citation
No. 655331 was properly written under section 104(d)(l) of
the Act and should be affirmed, as hereinafter ordered.
Docket No. WEVA 80-290
The order providing for hearing with respect to the Notice of Contest
filed in Docket No. WEVA 79-343-R consolidated all civil penalty issues which
might subsequently be raised if the ·Secretary of Labor should file a petition
seeking to have a civil penalty assessed for the violation of section 75.200
which had been alleged in Citation No. 655331 which was the subject of the
Notice of Contest filed in Docket No. WEVA 79-343-R. The Secretary did file
such a petition in Docket No. WEVA 80-290 on April 24, 1980, and a decision
with respect to that petition is set forth below, based on the findings which
were made above in my decision in Docket No. WEVA 79-343-R.
The petition in Docket No. WEVA 80-290 seeks assessment of a civil penalty for the violation of section 75.200 alleged in Citation No. 655331.
The petition raises the usual issues which have to be considered in civil
penalty cases, that is, whether a violation of section 75.200 occurred in
this instance and, if so, what penalty should be assessed based on the six
criteria set forth in section llO(i) of the Act. I have already found, in
considering the Notice of Contest filed in Docket No. WEVA 79~343-R that a
violation of section 75.200 occurred when United States Steel Corporation
failed to install timbers in a roadway which was more than 18 feet in width.
Therefore, the six criteria will now be considered in assessing an appropriate penalty.
It was stipulated at the hearing that U.S. Steel is a large operator and
that payment of civil penalties will not cause it to discontinue in business.
There is nothing in the record to show that respondent has such a significant
history of previous violations as to warrant an increase in the penalty under
the criterion of history of previous violations.
I found above in my decision under Docket No. WEVA 79-343-R that respondent demonstrated a good faith effort to achieve rapid compliance after the

1636

violation was cited. That mitigating factor will be taken into consideration
in assessing the penalty.
The violation was moderately serious. The roadway had been driven wider
than 18 feet and posts had not been erected to narrow the roadway to a width
of 16 feet as required by the roof-control plan then in effect. The inspector did not find any roof conditions which made it appear that the roof was
likely to fall and the roadway would have been used for only a period of
15 or 20 minutes because the roadway was needed for the purpose of hauling
coal from a pushout which was being mined at the time the violation was
cited. Moreover, the inspector said that respondent rarely exceeded the
18-foot width and that the roadways were normally not wide enough to require
installation of posts. In such circumstances, a relatively nominal penalty
is warranted under the criterion of gravity.
The facts considered in my decision in Docket No. WEVA 79-343-R above
support a finding that the violation was associated with a low degree of
negligence because respondent's roof-control plan which had been in effect
shortly before the violation of section 75.200 was observed permitted
respondent to omit the installation of timbers to narrow roadways because of
the occurrence of bumps in the mine here involved. Bumps occur when a large
section of the rib pops off with sufficient force to convert posts near the
ribs into projectiles which constitute hazards as great as a roof fall might
be.
The evidence shows that respondent is currently seeking to have its
roof-control plan amended so as to allow it to omit installation of posts
in roadways where bumps are prevalent. In such circumstances, a nominal
penalty under the criterion of negligence is warranted.
A penalty of $50 is appropriate under the six criteria of the size of
respondent's business, the fact that payment of penalties will not cause it
to discontinue in business, the fact that respondent demonstrated a good
faith effort to achieve rapid compliance, the moderate gravity of the violation, the low degree of negligence involved, and respondent's history of
previous violations.
Docket No. WEVA 80-81-R
A hearing with respect to the Notice of Contest in Docket No. WEVA
80-81-R was held in Charleston, West Virginia, on April 16, 1980, under
section 105(d) of the Act. Upon completion of introduction of evidence by
the parties, I rendered the bench decision which is reproduced below (Tr.
154-163):
Counsel for United States Steel Corporation filed on
November 5, 1979, in Docket No. WEVA 80-81-R a Notice of
Contest challenging Order No. 655316, which was issued on
October 2, 1979, at its Gary District No. 2 Mine.

1637

The following findings of fact provide the basis for
my decision in this proceeding:
1. Two coal mine inspectors, namely Donald C. Simpkins
and Tommy Robbins, went to U.S. Steel No. 2 Mine on October 2,
1979, and as they approached the No. 011 Section, they
inspected the track haulageway. Inspector Simpkins issued
Citation No. 656018 in which he alleged there was a violation
of section 75.202 because loose, unsupported ribs existed at
three locations along the track entry.
2. After the inspectors had continued on into the
011 Section here involved, Inspector Robbins became concerned
about some loose ribs which he observed inby the loading
point in a shuttle car haulageway. After appraising the
situation; the two inspectors jointly issued Order No. 655316
under section 104(d)(l) of the Act.
That order cites the following condition or practice,
"[l]oose, unsupported ribs were present on the left and right
side of the active shuttle-car roadway, beginning approximately 68 feet inby the shuttle-car dumping point and extending inby for a distance of 32 feet on the right side and
beginning approximately 50 feet inby the dumping point and
extending inby for a distance of 14 feet on the left side."
3. The shuttle-car haulageway is a main travelway for
shuttle cars and the inspectors also saw some men cleaning
around the dumping point outby the area of the 32 feet and
14 feet, respectively, of loose ribs that were cited in their
order.
4. Respondent demonstrated a good faith effort to
achieve rapid compliance because the order was written at
9:45 a.m. and the inspector terminated the order at 11:15 a.m.
It was testified by one of the contestant's witnesses that
the actual abatement process occupied a period of from-30 to
45 minutes. The actual work taken to abate the violation of
section 75.202 which was cited in the order, was the setting
of five posts on the left side of the shuttle-car roadway.
It was unnecessary to take down any of the loose ribs on the
left side.
5. On the right side, one post was set at the corner on
the most inby portion of the 32-foot area, some coal was
pried down about the middle of the 32-foot area, and a little
coal was taken down toward the outby part of the 32-foot area.
A portion of loose roof on the rib at the corner had to be
taken down with a scoop, because it could not be pried down
with a bar, in view of the fact that there was a rib bolt
holding that section of rib into the wall.

1638

6. Exhibit D shows that there were rib bolts and boards
spaced along the entire rib on an average of 6 feet apart.
And the mine foreman, Mr. Grygiel, testified that the roof
was in good condition and that the roof had been roof bolted
on 4-foot centers or less.
7. The angle of repose on the 32-foot _right side was
toward the roof; that is, the rib was farther into the roadway
at the bottom of the rib than it was at the top. On the
14-foot left side of the area cited in the order, the angle
of ~epose was nearly vertical or perpendicular to the mine
floor, but none of the rib was loose enough to require any of
it to be taken down in order for the inspectors to terminate
C1e order.
8. Section 75.202 to the extent here pertinent, provides
"[l]oose roof and overhanging or loose faces and ribs shall be
taken down or supported." A violation of section 75.202 was
proven by both the contestant's evidence and MSHA's evide~ce
because some of the coal was loose on the right side and was
taken down, even though the quantity only amounted to from
one-half to three-quarters of a ton.
9. For the civil penalty aspect of this case, I would
like to note some stipulations entered into by the parties
which will become pertinent when I receive the file containing the Petition for Assessment of Civil Penalty for this
alleged violation of section 75.202. The first stipulation
was that United States Steel Corporation is a large operator.
The second stipulation was that United States Steel Corporation is subject to the jurisdiction of the Connnission and the
1977 Act. The third stipulation was that payment of penalties would not affect the operator's ability to continue in
business. The nine parapgraphs above constitute the findings
of fact on which my decision will primarily be based.
In International Union, UMWA v. Kleppe, 532 F.2d 1403
(D.C. Cir. 1976), cert. denied, 429 U.S. 858, the court held
that when a notice-or-citation is issued under section
104(c)(l) of the 1969 Act, which reads the same as section
104(d)(l) of the 1977 Act, there must be a finding that there
was a violation which would significantly and substantially
contribute to the cause and effect of a mine safety and
health hazard, and be an unwarrantable failure violation.
The court held, however, the equivalent that an order may be
issued under section 104(c)(l) or section 104(d)(l) of the
1977 Act even if no finding as to gravity is made. In short,
the court held that it is sufficient for the issuance of a
104(d)(l) order if the inspector only finds that there was an
unwarrantable failure violation.

1639

\

'

In this particular proceeding, therefore, since we are
dealing with an order issued under section 104(d)(l) of the
Act, we do not have to give any great consideration to the
question of how grave this particular violation was. From
the civil penalty aspect of the case, however, it might be
sufficient or adequate or relevant for me to point out that
the preponderance of the evidence in this case shows that
this was not a serious violation. There was very little rib
surface which was· loose enough to require it to be taken down
and there was little likelihood that any of these ribs would
have fallen with sufficient force to cause any serious injury.
So I would find that the violation was moderately serious.
Now we get to the question of whether the order was
unwarrantable, that is, whether you could find that there was
unwarrantable failure on the part of the operator in failing
to take care of this problem before the inspectors observed
it.
The former Board of Mine Operations Appeals, after being
reversed on the holding about significant and substantial in
the Kleppe case, which I just cited, stated in Zeigler Coal
Company, 7 IBMA 280 (1977), at pages 295 and 296, that an
unwarrantable failure to comply exists if the operator
involved has failed to abate the condition or practices constituting the violation, and these conditions are such that
the operator knew or should have known that they existed, or
that the operator failed to abate them because of a lack of
due diligence or because of indifference or lack of reasonable
care.
We have the testimony in this proceeding of Inspectors
Robbins and Simpkins and the testimony of two of the company's witnesses, one being a mine foreman and the other
being an assistant foreman. A determination has to be made
as to whether they knew or should have known, or whether
their section foremen or preshift examiners, should have
known about these loose ribs and should have done something
about them before they were cited by the inspectors.
Inspector Simpkins' recollection of the facts was not
very vivid because a lot of time had passed since this order
was issued and because he had apparently not reviewed his
notes before coming here today. He was, in fact, called
as a witness by me instead of the Government. Consequently,
I do not think his testimony is particularly useful in making
a determination about the operator's knowledge or lack of
.knowledge in this area. So for all practical purposes, I
have to balance the testimony of two mine officials with that
of Inspector Robbins.

1640

I was very much impressed with Mr. Grygiel's testimony
and with the amount of effort he had made to preserve a
record of the conditions that he found on October 2. I find
that his knowledge of the area and what was done was much
more full and complete than that of Inspector Robbins.
There must be a time in one of these cases when the
company's testimony preponderates over that of the inspector,
and I think this case is one in which a finding of that
nature is justified. Exhibit D, which was prepared by
Mr. Grygiel in great care and detail, shows that while there
may have been some cracks in the areas cited in the inspector's order, Mr. Grygiel did not consider them sufficient to
have attracted a preshift examiner's attention or section
foreman's attention. Mr. Grygiel felt and, in fact, both of
the contestant's witnesses felt that the areas outby those
cited in the order looked the same as the actual areas cited
in the order and both witnesses said that they would not bave
considered any of this area inby the loading point needed any
special work.
The roof-control plan, which is Exhibit M-4 in this proceeding contains in Paragraph 18 a provision that rib bolts
or posts shall be installed when the mining height exceeds
6 feet. According to Mr. Grygiel, every area in the mine
exceeds 6 feet, so it is a requirement in this mine that rib
supports be installed.
But that Paragraph 18 provides, "When rib supports have
become ineffective because of weight or pressure conditions,
the supports need not be replaced." The provision goes on to
say "[h]owever, loose ribs or brows shall be taken down or
supported according to federal and state mining laws."
Consequently, there is no doubt but that the roof-control
plan would require contestant to take down loose ribs,_if they
are observed, but the question is whether contestant's
employees should have observed these particular loose ribs
and whether it was ~o obvious that they should have observed
them that the inspector properly considered contestant's failure to take down these loose areas to be an unwarrantable
failure.
After listening to the testimony of the company's
witnesses and that of Inspector Robbins, I am of the opinion
that these particular loose ribs were simply not so obvious
and dangerous that a preshift examiner would have picked them
out as something requiring special attention, or that a section foreman would have done so either.

1641

I am eX-_t.remaly ~e-luctant to find against an inspector.
I have done it on very few occasions. I am sure he acted in
good faith in this instance. It is certainly easier to
review somebody else's actions in the calm and unhurried
atmosphere of a hearing room than it is to make determinations pertaining to the difficult task of inspecting mines
and making decisions about health and safety while examining
an underground mine.
Nevertheless, I think in this instance, I shall have to
find that this particular violation was not something which
should have been considered an unwarrantable failure under
the cases which I have cited above.
WHEREFORE, it is ordered:
(A) The Notice of Contest filed in Docket No. WEVA 79-343-R is denied
and Citation No. 655331 dated July 12, 1979, is affirmed.
(B) Respondent in Docket No. WEVA 80-290 shall, within 30 days from
the date of this decision, pay a civil penalty of $50.00 for the violation
of section 75.200 alleged in Citation No. 655331 dated July 12, 1979.
(C) The Notice of Contest filed in Docket No. WEVA 80-81-R is granted
and Order No. 655316 dated October 2, 1979, is vacated.
(D) The civil penalty issues consolidated in this proceeding with
respect to Order No. 655316 are severed from this decision and will be
decided in a separate decision when I receive the file in which the Secretary
seeks assessment of a penalty for the violation of section 75.202 alleged in
Order No. 655316.

~ (} 0-t=#f,,~,

Richard C. Steffey
~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Louise Q. Symons, Attorney for United States Steel Corporation,
Legal Department, 600 Grant Street, Room 6044', Pittsburgh, PA 15230
(Certified Mail)
David Street, Attorney, Office of the Solicitor, U.S. Department of
Labor, Room 14480, Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Harr.ison Combs, Esq., United Mine Workers of America, 900 - 15th Street,
NW, Washington, DC 20005 (Certified Mail)

1642

FEDERAL MINE-SA-FETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6230

2 6 JUN 1980
ITMANN COAL COMPANY,

Application for Review
Applicant
Docket No. WEVA 80-7-R
v.
Itmann No. 3 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
and
UNITED MINE WORKERS OF AMERICA,
Respondents
Civil Penalty Proceeding

RAY MARSHALL, SECRETARY OF LABOR,
Petitioner

Docket No. WEVA 80-194
A.G. No. 46-01576-03037H

v.

Itmann No. 3 Mine

ITMANN COAL COMPANY,
Respondent

DECISION
Appearances:

Karl T. Skyrpak, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Itmann Coal Company;
James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Secretary of Labor,
Mine Safety and Health Administration;
Mary Lu Jordan, Esq., Washington, D.C., for United Mine Workers
of America.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This proceeding arises out of the consolidation of an application for
review of an imminent danger order of withdrawal and a civil penalty proceeding arising out of that order.

On October 1, 1979, Itmann Coal Company

1643

-· - -(hereinafter Itmann) filed an application for review of an order of with~-~

drawal based upon imminent danger.

On February 21, 1980, the Secretary of

Labor, Mine Safety and Health Administration (hereinafter MSHA) filed a proposal for assessment of a civil penalty against Itmann for violation of
30 C.F.R. § 75.200.

On March 28, 1980, I ordered these cases consolidated

under Procedural Rule 12 of the Federal Mine Safety and Health Review
Commission, 29 C.F.R. § 2700.12.
A hearing was held in Charleston, West Virginia, on April 16 and 17,
1980.

Itmann's motion to dismiss the United Mine Workers of America (here-

inafter UMWA) as a party was denied.
MSHA.

James A. Bowman testified on behalf of

Arnold Rogers testified on behalf of the UMWA.

Robert Crouse, John

Zachwieja, and David Bailey testified on behalf of Itmann.

Upon completion

of the taking of testimony, all three parties submitted oral arguments.
DISMISSAL OF PETITION FOR ASSESSMENT OF CIVIL PENALTY FOR ORDER NO. 0657194
At the outset of the hearing, MSHA moved to withdraw the proposal for
assessment of a civil penalty insofar as it related to Order No. 0657194.
The reason for this motion was that the order was vacated in a review proceeding of that order before another judge.

It was MSHA's position that

there was no violation of the Act or a mandatory safety or health standard.
Neither Itmann nor the UMWA opposed the motion to dismiss.
Therefore, MSHA's motion to dismiss the part of this proceeding concerning the petition for assessment of a civil penalty for Order No. 0657194 is
granted.

1644

ISSUES
The first general is.sue is whether the order of withdrawal due to
imminent danger was properly issued.

The second general issue is whether

Itmann 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 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 authorize~ representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of
the area of such mine thr.oughout 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."
30 C.F.R. § 75.200 provides in pertinent part as follows:

"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.

* * * No person shall proceed beyond the last permanent

support * * *·"

1645

---·

-

--

Section llO(if-o( 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. Itmann is the owner and operator of the Itmann No. 3
Mine, located in Wyoming County, West Virginia.
2. Itmann and the Itmann No. 3 Mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The Administrative Law Judge has jurisdiction of
this case pursuant to section 107 of the 1977 Act.
4. The inspector who issued the subject order and
termination was a duly authorized representative of the
Secretary of Labor.
5. A true and correct copy of the subject order and
termination were properly served upon the operator in
accordance with section 107(d) of the 1977 Act.
6. Copies of the subject order and termination are
authentic, and may be admitted into evidence for the purpose
of establishing their issuance, and not for the truthfulness
or relevancy of any statements asserted therein.
7. The appropriateness of the penalty, if any, to the
size of the operator's business, should be determined, based
upon the fact that in 1979 the Itmann No. 3 Mine produced an
annual tonnage of 535,357 and the controlling company,
Itmann, had an annual tonnage of 1,627,963.

1646

8. The-history of previous violations should be determined based on the fact that the total number of assessed
violations in the preceding 24 months is 382 and the total
number of inspection days in the preceding 24 months is 832.
9. The alleged violation was abated in a timely manner
and the operator demonstrated good faith in obtaining
abatement.
10. The assessment of a civil penalty in this proceeding will not affect the operator's ability to continue in
business.
SUMMARY OF THE EVIDENCE
Undisputed Evidence
The order of withdrawal in controversy here was issued on September 4,
1979, and provides as follows:
A beltman working in Beetree No. 2 belt conveyor entry
(active travelway) approximately two crosscuts outby the
drive was observed traveling under unsupported roof in a
fall area. A roof fall had occurred on the off side of the
belt conveyor causing the supports in the area to be
destroyed and ineffective leaving unsupported roof above the
fall and the beltman traveled through the area exposing himself. The operator did not support or otherwise control the
area to protect persons from falls of roof or rib.
The undisputed evidence indicated that a massive roof fall had occurred
approximately 4 years before the date on which the order was issued.

In the

area in question, the roof had fallen through the crosscut rib to rib.

The

roof fall in question was described as being 17 to 20 feet wide, 40 to
48 inches high, and approximately 90 feet long.

Since it was impossible for

Itmann to remove this massive roof fall which covered the conveyor belt in
question, it used dowty jacks to support the end of the rock which was protruding over the belt.

After the edge of the rock had been elevat·ed, the

1647

belt was able to-run-under clie roof fall.

The rock in question did not

block passage on the travel side of the belt but it did block passage on the
off side of the belt.

After the roof fell, no action was taken to support

the roof or block persons on the off side of the belt from crossing over the
roof fall and under unsupported roof.
On the day in question, Marty Bowers and another belt cleaner were
assigned to clean the belt area in question.
cleaner in this area.

Bowers was not the regular belt

The belt foreman was not in the vicinity of this area

at the time of this occurrence.

The area in question was traveled and belts

were cleaned once a week unless there were spills or mechanical problems.
MSHA inspector James Bowman was accompanied by union safety committeeman
Arnold Rogers and Itmann safety supervisor Robert Crouse.

As Inspector

Bowman approached the large rock, he saw Bowers travel over the roof fall
under unsupported roof.

Thereupon, he issued a section 107(a) imminent

danger order of withdrawal.

Thereafter, timbers and planks were erected on

the roof fall to prevent any other miners from going over the fall and under
the unsupported roof.
MSHA proposed that a civil penalty in the amount of $2,000 be assessed
for the violation of 30 C.F.R. § 75.200.
Evidence by MSHA and UMWA
James A. Bowman testified that he has been a federal mine inspector for
6 years.

At the time he issued the imminent danger order, he interviewed

beltman Marty Bowers whom he saw crossing the roof fall unde.r unsupported

1648

Bowers to:tg._ h~!l- J:hat_.he had crossed this area several times.

roof.

The

area had been freshly rock dusted approximately 2 days previously and the
tracks through the rock dust indicated that it had been traveled over several
times.

Bowman believed that if normal mining operations continued, Bowers

or some other belt cleaner would have crossed the area again.

In the opinion

of Inspector Bowman, there was a very real likelihood of injury or death
if normal mining operations continued.
Inspector Bowman testified that he believed that Itmann should have
known about the rock fall since it was required to check the belts three
times a day.

He fur,ther believed that miners were encouraged to cross this

area because there was no off-on switch in the area and no cross-over was
provided.

A miner crossing the rock fall would go under approximately

12 feet of unsupported roof.

Inspector Bowman believed that this was a

serious violation because approximately half of the fatalities in underground mines are due to roof falls.
Inspector Bowman did not go under the unsupported roof but checked it
visually from tha travel side of the belt.

He observed that the ribs were

broken and the roof appeared to be cracked and unstable above the fall.
Inspector Bowman could not remember exactly when he issued the imminent
danger order or whether the miner was under unsupported roof at the time.
The primary factor he considered in issuing the imminent danger order was
seeing the man on top of the roof fall.
Arnold Rogers testified that he has worked a:t the Itmann No. 3A Mine
since 1960.

He was the union safety committeeman who accompanied Inspector

1649

Bowman on the day the order was issued.

He was traveling approximately 6

to 7 feet behind the inspector at the time he saw a man on top of the rock
that was protruding over the belt.

He saw this man take two steps.

When

he got closer to the rock, he could see that it had been traveled over.

In

his opinion, one trip over this rock would not account for all the tracks
he observed.

He heard Marty Bowers say, "I've traveled several times

before."
Mr. Rogers stated that he observed the unsupported roof from the travel
side of the belt.

It appeared to be broken and unstable.

He had attended

safety classes given by Itmann and had been told not to go under unsupported
roof.
Evidence by Itmann
Robert Crouse was Itmann's safety supervisor at the time of this occurrence.

He accompanied Inspector Bowman and Arnold Rogers on the day in

question.

At the time Marty Bowers crossed under the unsupported roof,

Mr. Crouse was approximately 45 to 50 feet behind Inspector Bowman.
running to catch up.
order."

He was

Inspector Bowman told him, "You've just got a 107(a)

Mr. Crouse testified that Marty Bowers said he knew better than to

go under unsupported roof.

Bowers further stated that this was not his

regular work area and the belt foreman did not know it was his practice to
cross this area.

Robert Crouse further testified that the other belt cleaner

who was working with Bowers at the time stated that the regular practice in
this area was to turn off the conveyor belt, have the belt cleaner on the
off side cross the belt to the travel side and walk around the rock, cross

1650

the belt to the of_f_ s~_2._e., _an.d_turn the belt on.

Mr. Crouse stated that the

off side of the belt was not used as a regular travelway.
performed from the travel side of the belt.

Rock dusting was

However, Mr. Crouse conceded

that the off side of the belt in the area in controversy could be traveled
more than once a week in the event of spillage.
Mr. Crouse visually observed the unsupported roof in question and it
appeared to be smooth, flat, solid sandstone.

He had been through this area

many times before with federal and state inspectors and no one had ever cited
it.

Mr. Crouse did not believe that an order of withdrawal was required

since the condition would have been abated just as fast if a.section 104(a)
citation had been issued.

Itmann management had no way of knowing that a

miner would go under the unsupported roof.

Mr. Crouse conceded that he did

not think it was a safe practice to go under unsupported roof, but he did not
think that Bowers was in any imminent danger while he was under the unsupported roof in question and that any imminent danger certainly did not exist
after Bowers was out from under the unsupported roof.
John Zachwieja was the mine superintendent of the mine involved in this
controversy.

He did not go into the area on the day of the order.

he testified that after abatement, he examined and sounded the roof.

However,
He

testified that the sandstone did not form a complete arch but it was not
smooth.
ing.

While there appeared to be crack in the roof, it was firm on sound-

Mr. Zachwieja testified that in his opinion there was no imminent

danger after the miner got off the rock.
David Bailey was the mine superintendent of the 3A Mine on the day in
question.

He was not in the area when the order was issued but the belt

1651

cleaners were under his jurisdiction.

He suspended Marty Bowers for 5 days

without pay following this incident.

Mr. Bailey testified that the rock in

question had fallen in approximately 1975 and its condition was unchanged up
to the day of this order.

In Mr. Bailey's opinion, Marty Bowers was totally

safe when he was on the rock even though he was under unsupported roof.
was so because the roof in question was solid and strong.
there was no imminent danger.

This

In his opinion,

He suspended Mr. Bowers because Mr. Bowers did

not know that the top was solid and the next time he went under unsupported
roof he might be killed.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of the
parties have been considered.

MSHA and the UMWA contend that the imminent

danger order of withdrawal should be affirmed and that the civil penalty,
as proposed, should be assessed.

Itmann contends that the imminent danger

order of withdrawal should be vacated or, in the alternative, modified to
a section 104(a) citation.

In the event a violation is established, Itmann

argues that a civil penalty of approximately $150 would·be appropriate.
One of the arguments advanced by Itmann is that the inspector chose the
wrong remedy.

Itmann argues that there was no need for a section 107(a)

withdrawal order and that a section 104(a) citation would have accomplished
the same result.

The Interior Board of Mine Operations Appeals gave this

type of argument short shrift in Eastern Associated Coal Corp., 2 IBMA 128,
137 (1973) as follows:

1652

We hav-e- cons.i.d~-r~d and we reject Eastern Is argument tha ...
the inspector exceeded his authority for the reasons that he
could or probably should have taken alternative actions, such
as issuing notices of violation or doing nothing, which in
Eastern's view.would have accomplished the same result. This
argument could be raised in almost every case. However, we
are not called upon here to decide whether the inspector chose
the most appropriate of several alternatives, but rather we
are called upon_ to decide whether the action he did take was a
proper and lawful exercise of authority under the Act.
The Seventh Circuit Court of Appeals discussed the "precarious position"
of the inspector and the test it applied to determine the validity of orders
of withdrawal based upon imminent danger.
Clearly, the inspector is in a precarious position. He is
entrusted with the safety of miners' lives, and he must ensure
that the statute is enforced for the protection of these lives.
His total concern is the safety of life and limb. On the other
hand, the coal mine operator is principally concerned with
dollars and profits. We must support the findings and the
decisions of the inspector unless there is evidence that he had
abuseu his discretion or authority. [Emphasis supplied.]
Old Ben Coal Corp. v. lBMA, 523 F.2d 25, 31 (7th Cir. 1975).
I agree with the determination of the Interior Board of Mine Operations
Appeals that .the issue in this case is the validity of the order in controversy and not whether some other remedy should have been chosen.
The evidence establishes that a belt cleaner employed by Itmann traveled
over a roof fall and under approximately 12 feet of unsupported roof on the
date in question.

This occurrence was observed by the inspector and the

union walkaround.

The inspector determined that, based upon extensive tracks

through the rock-dusted roof fall, it was the practice of miners to travel
under this unsupported roof.

This evidence was corroborated by the testimony

1653

of the union walkarouncl. ___ On tfiis issue I find that the testimony of the
inspector and union walkaround was more persuasive and credible than the
testimony offered by Itmann that a different practice was followed in this
area.

The physical facts, the admission of the belt cleaner and the cumber-

some procedure advanced by Itmann for belt. cleaners to circumvent the roof
fall support the finding that it was the practice of belt cleaners to travel
under the unsupported roof.
On the issue of the validity of the imminent danger order of withdrawal, Itmann posits its defense on Old Ben Coal Co., 6 IBMA 256 (1976).
In Old Ben, the Interior Board of Mine Operations Appeals affirmed a
holding that imminent danger did not exist where a miner had been riding
on top of the locomotive with his feet hanging over the side and the miner
got off the locomotive prior to the issuance of the order.

The Board held:

These provisions of the Act make it clear that an
imminent danger withdrawal order can be properly issued only
if an imminent danger exists at the time of issuance. No
provision is made for issuance where a danger is speculative,
has subsided or has been abated. The mere existence of this
policy, allowing men to ride on locomotives, did not constitute an imminent danger. Id at 261.
While the rationale of Old Ben may be faulted, I find that it is
distinguishable from the instant case.

This is so because Old Ben held that

the practice of allowing men to ride on locomotives did not constitute an
imminent danger and, hence, no imminent danger existed at the time the order
was written.

In the instant case, I find that it was the practice of miners

to travel under unsupported roof in the area in question and that such
practice could be expected to cause death or serious physical harm before

1654

the practice could be abated.

Hence, even though the miner was no longer

under the unsupported roof at the time the order was issued, the practice
of miners going under the unsupported roof constituted an imminent danr,er
under the Act.
There was no support of the roof or other control to prevent miners
from going under the unsupported roof.

I find that the credible evidence of

record establishes that the roof in question was cracked and unstable.

I

have considered the testimony presented by Itmann that the roof in question
was sound and had stood for 4 years.

However, the preponderance of the

credible evidence supports the inspector's conclusion th~t persons going
under this unsupported roof would be exposed to death or serious physical
harm.

This finding is based upon the testimony of Inspector Bowman, UWMA

walkaround Ar.nold Rogers, and some of the testimony of Itmann superintendent
John Zachwieja.

The contrary testimony is rejected.

Since the roof in question was cracked and unstable, I find that the
preponderance of the evidence establishes that the condition of the roof
coupled with the practice of traveling under it could be expected to cause
death or serious physical harm before the condition and pr~~tice could be
abated.

Therefore, I find that the order of withdrawal under section 107(a)

due to imminent danger was properly issued in this case.
MSHA proposed the assessment of a civil penalty against Itmann for
violation of 30 C.F .R. § 75 .2.00 in that a miner traveled under unsupported
roof and the operator did not support or otherwis·e control the area to
protect persons from falls of roof or rib.

1655

Itmann does not dispute the fact

that the belt

cle~ner-travelea

under unsupported roof.

While Itmann concedes

that the roof was not supported, it contends that it had no knowledge that
miners would go under such unsupported roof.
The fact that ~ miner employed by Itmann traveled under unsupported
roof establishes a vio·lation of 30 C.F .R. § 75. 200.

However, I have also

found that the condition of this roof had been present for approximately
4 years and that it was the practice of belt cleaners to travel under
this roof.

Under these circumstances, I find that Itmann knew or should

have known of this condition and practice.

Itmann's failure to take action

to prevent the violation in question amounts to ordinary negligence.
As I have previously noted, a roof fall could cause death or serious
physical harm.

One person would be exposed to such an occurrence.

Stipula-

tions 7 through 10 have been considered in assessing a civil penalty.

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 of $2,000 should be imposed for
the violation found to have occurred.
ORDER
Therefore, it is ORDERED that the motion to dismiss the part of this
proceeding concerning the proposal for assessment of civil penalty for
Order No. 0657194 is GRANTED.
It

is FURTHER ORDERED th.at the application for review is DENIED and

the subject withdrawal order is AFFIRMED.

1656

It is FURTHER ORDERED that Itmann pay the sum of $2,000 within 30 days
of the date of this decision for violation of 30 C.F.R. § 75.200.

n, Judge
Distribution by Certified Mail:
Karl T. Skyrpak, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15214
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Mary Lu Jordan, Esq., United Mine Workers of Americ~, 900 15th Street,
NW., Washington, DC 20005

1657

FEDERAL M1NE-SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 7 JUN 1980
Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 80-150
A.O. No. 46-02843-0~026

Petitioner
v.

Madison No. 1 Mine
KANAWHA COAL COMPANY,
Docket No. WEVA 80-154
A.O. No. 46-03092-03033

BECKLEY COAL MINING COMPANY,
Respondents

Beckley Mine
DECISION AND ORDER
Appearances:

David E. Street, Esq., U.S. Department of Labor, Office of
the Solicitor, Philadelphia, Pennsylvania, for· Petitioner;
Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones,
for Respondents.

Before:

Judge Kennedy
Statement of the Proceedings

In the interest of a just, speedy and inexpensive determination of these
matters the parties waived an evidentiary hearing and filed cross motions for
summary decision together with a stipulation of material facts not in dispute.
The common question of law presented is whether evidence of two respirable
dust violations gathered through the use of a personal sampler approved by
the Secretary of the Interior and the Secretary of Health, Education and
Welfare under the 1969 Coal Act (30 C.F.R. Part 74) is admissible to prove
a violation of the mandatory health standard set forth in section 202(b),

•

30 U.S.C. § 842(b), in an enforcement proceeding brought under section ~
llO(a), 30 U.S.C. § 820(a), of the 1977 Mine Health and Safety Act.

1658

I

Coal workers' pneumoconiosis--black lung disease--affects a high percentage of American coal miners with severe, chronic, and crippling respiratory impairment.

The disease, which in its advanced form is inevitably

fatal is caused by long-term inhalation of respirable mine dust, including
coal dust.

Medically speaking, respirable dust consists of particulates of

dust small enough to be taken into the terminal airways of the lungs, and
large enough to trigger the replacement of healthy lung tissue with hard
nodules formed in the scarring reaction of the body.

As the disease

progresses the lungs lose volume and breathing becomes progressively more
difficult.

In its advanced stages, the disease becomes a massive fibrosis

that continues to grow even after the worker is removed from exposure.

The

complicated form of the disease produces lesions that gradually constrict
the flow of blood through the pulmonary vessels, first causing enlargement
of the right side of the heart and later causing death from congestive
cardiac arrest.
Black lung disease is an occupational disease that afflicts the lives
of thousands of miners and their families.

Various studies show that between

10 and 30 percent of all working bituminous coal miners have some form of the
disease.

Every miner lives under the threat of black lung and thousands die

of it every year;

While 161 miners died in on-the-job accidents last year,

the UMWA estimates approximately 4,000 miners died of black lung disease.
Thus, more than 11 miners each day wheeze away their final breath as a rlsult
of black lung.

1659

The Federal Coal Mine Health and Safety Act of 1969 recognized for the
first time that black ~ung is an occupational disease. ];_/

It mandated

allowable dust concentrations and provided for compensation of disabled
miners.

Over 400,000 miners are presently receiving black lung benefits. ]:_/

In an effort to curb the incidence of black lung, Congress provided in
Titles II and III of the Coal Act for limits on the amounts of dust to be
permitted in the ambient air of coal mines.

Thus, sections 202(b)(2), 202(e),

and 318(k) of the Coal Act, 30 U.S.C. §§ 842(b)(2), (e), 878(k), provided that
effective December 30, 1972, each operator of an underground coal mine was
obligated to keep the weight of dust 5 microns or less in "size" in each
cubic meter of air at or below 2 milligrams.

Section 202(a) of the Coal Act

further provided that:
Each operator of a coal mine shall take accurate samples
of the amount of respirable dust in the mine atmosphere to
which each miner in the active workings of such mine is
exposed. Such samples shall be taken by any device approved

1J

Recognizing the epidemic proportions to which the disease had grown in
the nation's mines, Congress developed a mandatory health standard the purpose of which was:
"* * * to provide, to·the greatest extent possible, tha,t the working
conditions in each underground coal mine are sufficiently free of respirable
dust concentrations in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working
life without incurring any disability from pneumoconiosis or any other
occupation-related disease during or at the end of such period." Section
20l(b), 30 u.s.c. § 84l(b).

'!)

See, President's Commission on Coal, The American Coal Miner, March 1980,
at 125. Although the level of dust in the nation's mines has significantly
decreased since the passage of the 1969 Act, the epidemiological studies~
being conducted by the National Institute of Occupational Safety and Hea!th
evaluating the effectiveness of dust suppression programs in preventing or
lessening the progression of pneumoconiosis will not yield preliminary
results until 1981.

1660

by the Secretary [of Interior] and the Secretary 0£ Health
Education and Welfare and in accordance with such methods, at
such locations, at such intervals, and in such manner as the
Secretaries shall prescribe in the Federal Register within
sixty days from the date of enactment of this Act and from
time to time thereafter.
In addition, section 202(e) of the Act provided that the weight per unit
volume of the respirable dust collected in the approved devices was to be
measured by equating it with that which would be obtained if the dust were
collected with an MRE instrument.

An MRE instrument was defined as "the

gravimetric dust sampler with [a] four channel horizontal elutriator
developed by the Mining Research Establishment of the National Coal Board,
London, England."

(See Appendix A).

With reference to the MRE instrument, the House Report on the Coal
Act, 3/ stated:
When reference in this report is made to dust readings
which yie~d results in terms of milligrams per cubic meter of
air (mg/m ) such determinations are measured with an MRE
instrument. As used in this title "MRE instrument" means the
gravimetric dust sampler with four channel horizontal elutriator developed by the Mining Research Establishment of the
National Coal Board, London, England.
Becaus.e the Board of Mine Operations Appeals ignored this definition it
failed to appreciate that the particle size limitation, "5 microns or less in
size," as found in section 318(k) was meaningless unless "size" was defined
in terms of the weight of dust particulates aerodynamically separated and

l_/

H. Rep. 91-563, 91st Cong., 1st Sess. at 15 (1969); Legislative Histlfry
of the Coal Mine Health and Safety Act of 1969 (Public Law 91-173) as amended
through 1974 including Black Lung Amendments of 1972, Subcommittee on Labor
of Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess.,
Part I at 1045 (1975).

1661

collected by the MRE sampler.

Assuming that the "5 microns or less in size"

definition referred only to static or "linear" size, the Board found that
definition to be incompatible with the gravimetric method of "size" measurement mandated by the statutory standard. 4/
4/ As the legislative history of the standard shows, the particle count per
cubic centimeter system which the Board contended for was not only slow and
tedious but unreliable because of the subjectivity involved in making the
"size" and "count" determinations. Because of this and because recent medical evidence showed that the mass or weight of the dust sample,.!.·~·· the
"size" of the dust sample per cubic meter of air was the controlling causative factor, the MRE instrument which ultimately records the weight in milligrams per cubic meter of air was developed. The MRE instrument separates out
(elutriates) and weights (gravimetrically) dust in the minus-7 micron equivalent aerodynamic size range. Hearings before the Subcommittee on Labor
of the Senate Committee on Labor and Public Welfare, pp. 576-579, 91st Cong.,
1st Sess. (1969). The aerodynamic equivalency factor which the Board never
understood is explained as follows. The MRE design is based on particle
selection principles which simulate the behavior of the human respiratory
tract in a dust cloud. Empirically speaking, respirable dust is any dust
that can penetrate the respiratory system and deposit in the terminal airways
of the lungs. Most commonly this is dust with a particle size of 5 microns
or less in diameter, but may include particles as large as 200 microns where
such particles have aerodynamic characteristics that cause them to behave
in the pulmonary air flow like 5 micron dust. Eastern Associated Coal Corp.,
7 IBMA 133, 140-142 (1976). It is important to understand exactly what the
MRE device measures. The four channel horizontal elutriator removes from
the airstream all particles with an aerodynamic equivalent diameter greater
than 7.1 microns, lets pass approximately 50 percent of particles with an
aerodynamic equivalent diameter of 5 microns, and lets pass approximately
98 percent of particles with an aerodynamic equivalent diameter of 2 microns.
The term aerodynamic equivalent diameter refers to "the diameter of a spherical particle of unit density having the same falling velo-city as the particle in question." See, Sampling and Evaluating Respirable Coal Mine Dust,
Bureau of Mines, IC 8503, February 1971, at 3. A particle of unit density,
or a density of one, has the same density as water, i.e., 1 gram per cubic
centimeter. See, Dictionary of Mining, Mineral and Related Terms, Bureau
of Mines, 1968, at 312. Thus, the MRE device sorts particles based on their
aerodynamic performance characteristics rather than on their "linear size."
Both the density and shape of particles affect their aerodynamic characteristics. For example, a sphere of dust 5 microns in diameter as measured
with a microscope but with a density twice that of water would be removed
from the airstream significantly sooner than a similar sphere of unit de~sity,
and would have an equivalent aerodynamic diameter in excess of 5 microns
even though its "linear size" is only 5 microns. Similarly, the shape of a

1662

This erroneous interpretation of the Congressional intent led the Board
to declare the standard invalid and unenforceable.
Corporation, 7 IBMA 14; 133 (1976).

Eastern Associated Coal

To prevent the complete repeal of the

vital dust suppressant program, the Secretary of the Interior took the
unprecedented step of personally intervening in the matter to stay the
effectiveness of the Board's nullification order.

Decision and Order of the

Secretary of the Interior Staying Board of Mine Operations Appeals Decision,
dated January 19, 1977.
fn. 4 (continued)
particle also affects its aerodynamic performance. A 5 micron cube of unit
density material would have an equivalent aerodynamic diameter in excess of
that of a 5 micron sphere of unit density since it would be removed from the
airstream sooner than the sphere. Applying these principles to the measurement of mine dust, it can be determined that a 5 micron cube of coal dust,
the lightest constituent of mine dust having a density of 1.3, has an equivalent aerodynamic diameter of approximately 6.8 microns, and therefore only
approximately 5 percent of such 5 micron cube particles would be deposited on
the MRE filter. A 5 micron cube of limestone, a common constituent of mine
dust with a density of 2.6, has an equivalent aerodynamic diameter of
approximately 8.5 microns, and therefore would not be deposited at all on
the MRE filter~ These relationships can be determined by using the f~llow
ing formula: (size in microns) 3 (density) = (pi/6) (size in microns) (unit
density) where the left side of the equation describes the mass of the cube
in question and the right side the size of an equivalent sph~re of unit
density. Thus, it is apparent that although the MRE device measures particles on the basis of their aerodynamic performance characteristics, it also
effectively measures the respirable fraction of mine dust even if defined
solely with regard to "linear size." This is the equivalency factor the
Board could not understand. It is important to recognize, however, that the
respirable dust standard was developed with reference to the MRE device and
is expressed in terms consistent with the characteristics of that device.
Any attempt to change the definition of respirable dust or the sampling
method used would require a corresponding change in the standard. (See
Appendix B).
-.-

1663

II

After being made aware of the "Interior Board's misinterpretations of
the respirable dust statutes," ii Congress took action to eliminate the
"conflicting definitions * * * which have threatened to interfere with the
civil penalty enforcement of the dust sampling program." ~I

Thus, section

202(b), 30 U.S.C. § 842(b), of the 1977 Mine Act repealed section 318(k) of
the 1969 Coal Act, 30 U.S.C. § 878(k), which the Board had misconstrued, and
amended section 202(e) so as to delete the reference to the MRE instrument.
Section 202(a), 30 U.S.C. § 842(a), of the 1977 Mine Act.

The latter was

designed to ensure that the particle selection principle upon which the MRE
instrtnnent operates (separation of minus-7 micron dust particles from the
dust cloud or atmosphere) could not be used to undermine once again the
gravimetric method of measurement of deleterious concentrations of respirable
dust.

As the Senate Committee Report stated:
Section 318(k) of the Federal Coal Mine Health and
Safety Act of 1969 is amended by deleting subsection (k)
which defines respirable dust in terms of dust particulates
5 microns in size or less. The new definition in subsection (e) defines respirable dust in terms of average concentration, a method of determining the amount of dust in a
mine atmosphere on the basis of weight. Since all devices
approved by the Secretary and the Secretary of Health,
Education and Welfare measure respirable dust on the basis
of weight, rather than particle size, this amendment is
necessary to make the definition of respirable dust conform
to the approved method of sampling. J_I

ii

Hearings Before the Subcommittee on Labor of the Senate Committee on
Human Resources, 95th Cong., 1st Sess., at 163 (March 1977).

61 Conference Report on S. 717, S. Rep. 95-461, 95th Cong., 1st Sess. 6~
reprinted in Legislative History of the Federal Mine Safety and Health Act
of 1977, at 1341 (July 1978).
J_I

S. Rep. 95-181, 95th Cong., 1st Sess. at 51, Leg. Hist., supra at 639.

1664

To underscore the importance and urgency of this amendment the Mine Act
further provided that the amendment to the definition of approved devices
was to be effective on the date of enactment of the Mine Act (November 9,
1977), and not 120 days thereafter as was true of the remainder of the new
Act.

Section 307, 30 U.S.C. § 801, note.
Two mqnths later, Secretary Andrus after tacitly accepting the Board's

erroneous interpretation of the size particle definition of respirable dust
undertook to vacate Secretary Kleppe's stay of a year earlier on the ground
that the repeal of the 318(k) definition had mooted the issue for the
future. '§_/

This effectively compromised the enforcement of some 4,000 out-

standing violations of the dust standard that occurred prior to November 9,
1977.
On March 24, 1978, some 4-1/2 months after Congress repealed section
318(k) of the Mine Act, the Department of Labor deleted 30 C.F.R. 70.2(i),
the counterpart of section 318(k) which appeared in the Code of Federal
Regulations.

And on April 8, 1980, the Department of Labor finally deleted

the 318(k) definition from 30 C.F.R. 75.2(k) of the mandatory safety
standards.
III
In each of these cases the operator concedes it had respirable dust
concentrations in excess of the 2 milligram standard--3.0 milligrams in the
8/ Order of the Secretary of the Interior Dissolving Secretarial Stay
Order of January 19, 1977, issued January 3, 1978.

1665

case of Kanawha and 2.1 milligrams in the case of Beckley.

Despite this, it

moves for summary decision in its favor on the authority of Judge Moore's
decisions in Alabama By-Products Corporation, SE 79-110 (February 12, 1980),
appeal pending; and Olga Coal Co., HOPE 79-113-P (June 28, 1979), appeal
pending.
In Alabama By-Products Corporation and Olga Coal, Judge Moore concluded
that (1) the repeal of the size particle definition by Congress in November
1977 was nullified by the failure of the Secretary of Labor to delete the
definition from 30 C.F.R. § 75.2(k) of the mandatory safety standards and
thus the standard was once again rendered unenforceable and (2) the failure
of the Secretary of Labor and the Secretary of Health, Education and Welfare
to issue a new Part 74 of the Code of Federal Regulations and thereby
redefine respirable dust renders ineffective the gravimetric method of
measurement reaffirmed in section 202(e) as amended in November 1977.
I must respectfully decline to follow the decisions of Judge Moore.
First, I find it axiomatic that repeal of the statutory basis for the definitions set forth in 30 C.F.R. §§ 70.2(i) and 75.2(k) deprived them of all
legal vitality and significance.

In this connection, I note that in April

1980, the Department of Labor finally substituted the gravimetric definition
set forth in section 202(e) 9/ for that in old 318(k).

'ii

Despite the delay, I

The gravimetric definition states:
"'Respirable dust' means dust collected with a sampling device approved
by the Secretary and the Secretary of Health, Education and Welfare in
~
accordance with Part 74 (Coal Mine Dust Personal Sampler Units) of this ~
title. Sampling device approvals issued by the Secretary of Interior and
Secretary of Health, Education and Welfare are continued in effect."
45 F.R. 24000, 24004.

1666

find no rational basis for concluding the Department's laggardly approach to
deletion of the so-called "linear" definition of respirable dust rendered
unenforceable the mandatory health standard . .!QI
I reject as unsound the view that an agency can administratively veto or
render null, void and unenforceable an Act of Congress by allowing obsolete
regulations to remain in the Code of Federal Regulations or that regulatory
ineptitude is an acceptable alternative to effective enforcement of the Mine
Safety Law.

For these reasons, I conclude the "linear" definition of respi-

rable dust has been a dead letter since at least November 9,

1~77,

and that

the Secretary's failure to conform his regulations with the Congressional will
was and is no bar to enforcement of the respirable dust standard set forth in
Title II of the Mine Health and Safety Law.
§

30 C.F.R. Part 70, 30 U.S.C.

841 ~ seq.
I further conclude that while the Board of Mine Operations Appeals never

was able to comprehend the enforcement scheme mandated by the aerodynamic
equivalency test, the fact is that the Bureau of Mines, MESA, MSHA and Congress always intended that for the purpose of enforcement of the respirable
dust standard average concentrations were to be measured by-whatever dust was
collected by the MRE instrument or its equivalent as approved by the two
Secretaries . ...!.!_/
10/ As we have seen the "linear" definition was deleted from the regulations
implementing the Health Standards in March 1978. The violations here occurred
in May and July 1979.
11/ Congress has never deviated from its statement that:
"When reference in this report is made to dust reading~ which yield
results in terms of milligrams per cubic meter of air (mg/m ) such ·determinations are measured with an MRE instrument." H. Rep. 91-563, 91st Cong·.,
1st Sess. at 15. See also 45 F.R. 23996 (1980).

1667

Ever since April 3, 1970, 30 C.F.R. § 70.206 has provided that for the
purpose of determining compliance, concentrations of respirable dust collected
with an approved sampling device will be expressed in terms of "equivalent
concentrations of respirable dust as measured with an MRE instrument." And
ever since March 11, 19.70, the approved sampling device has been a personal
sampler unit, such as the Bendix Micron Air II units involved in these violations, built and maintained in accordance with the provisions of Part 74 of
Title 30 of the Code of Federal Regulations.

(See Appendix C).

Under Part 74, the.National Institute of Occupational Safety and Health
(vice the Secretary of HEW) is responsible for approving the efficiency and
accuracy of the dust samplers and MSHA (vice MESA and the Secretaries of
Interior and Labor) is responsible for approving the permissibility of the
electric air pump. JJ:..I

30 C.F.R. § 74.3.

These permissibility standards are set forth in 30 C.F.R. § 18.68 and
have been in effect since March 1968.

33 F.R. 4660.

While they were

initially promulgated by the Director of the Bureau of Mines they have been
continued in effect ever since under successor authorities including section 30l(c)(2) of the 1977 Mine Health and Safety Act, 30 u.s:c. § 96l(c)(2).
Both Judge Moore and the Board seemed to recognize that Part 74 is not
a mandatory health standard.

See, section 202(a) of the Coal Act, 30 U.S.C.

12/ The National Bureau of Standards has found the personal sampler "is a
'State-of-the-art' instrument that has no proven peer in this application."
See, An Evaluation of the Accuracy of the Coal Mine Dust Sampling Prograii
Administered by the Department of the Interior, Report to the Senate
Committee on Labor and Public Welfare, U.S. Department of Commerce,
December 1975, at ii.

1668

§

842(a), as well as sections 202(e) and 508 of the Mine Act, 30 U.S.C.

§§

842(e), 957; Eastern Associated Coal Corp., 7 IBMA 14, 39-42 (1976).

agree.

I

Consequently, the Solicitor's suggestion that the Commission and its

judges are without power to review a claim of invalidity of Part 74 because
of the provisions of section lOl(d), 30 U.S.C. § 8ll(d), is not relevant or
germane to this proceeding. ]:11
What I find germane is the following:
1.

Congress repealed section 318(k) and the reference to
the MRE instrument not because the 5 micron size
particle definition was incompatible with the particle
selection principles of the MRE instrument but because
the Board of Mine Operations Appeals could not understand that to the scientists who designed the MRE
instrument and the medical doctors who deal with black
lung "only 5 microns or less in size" means dust particles of unit density or those of aerodynamic equivalent diameter. The equivalent diameter of a particle is
the diameter of a spherical particle of unit density
having the same falling velocity in air as the particle
being measured. IC 8458, 12-13 (1970); IC 8503, 3
(1971).

2.

Congress repealed section 318(k) and the reference to
the MRE instrument 120 days before the Secretary of the

]:11

Part 74 which was promulgated on March 11, 1970 (35 F.~. 4326), is not
only not an improved mandatory health or safety standard but was not promulgated under section 101, 30 U.S.C. § 811, of the Mine Safety Act, as amended
in 1977. Because Part 74 only delegates to the administrative the authority
to designate the devices approved for measuring compliance or noncompliance,
use of an unapproved or impermissible device would be a violation of the Act
or of the permissibility standard, a safety standard, but not a violation of
the respirable dust health standard. The health standard is set forth in
section 202(b)(l), (2) of the Mine Safety Act of 1969, as amended, 30 U.S.C.
§§ 842(b)(l), (2), 30 C.F.R. § 70.lOO(b).
While civil penalties may be
imposed for violations of the Act, criminal penalties may be imposed onl~ for
violations of the mandatory health or safety standards. 30 U.S.C. §§ 82e(a),
(d). Compare, United States v. Consolidation Coal Co., 477 F. Supp. 283,
286-287 (S.D. Ohio 1979). It should be noted, however, that in section
303(b) of the Coal Act Congress authorized the Secretary to prescribe maximum
respirable dust levels in intake air courses, 30 C.F.R. § 70.lOO(d), (e).

1669

Interior's approval/enforcement authority was transferred
to the Secretary of Labor. Section 307, 30 U.S.C.
§ 801 note.
3.

Congress con.firmed and ratified approvals of personal
samplers that were outstanding on the effective date of
its amendment of section 202(e) of the Coal Act,
November 9, 1977. This occurred 120 days before the
approval/enforcement authority was transferred to the
Secretary of Labor at a time when the Secretary of the
Interior was the only legal referent for the definition
of "Secretary".

4.

It is absurd to attribute to Congress an intent to validate use of the approved samplers on the one hand while
suspending that approval for 120 days or until the
Secretary of Labor could rubber stamp what Congress had
decreed.

5.

On March 9, 1978, the outstanding approvals of personal
samplers under Part 74 were automatically-continued in
effect by virtue of the provisions of section 30l(c).(2)
of the 1977 Mine Act, 30 U.S.C. § 961.

6.

There is no basis for concluding that by repealing section 318(k) and amending section 202(e) Congress
intended to require the Secretary of Labor and the
Secretary of HEW to "come up with a new defintion" of
respirable dust. Such an expectation would be fatuous
and akin to expecting the administrative to repeal the
law of gravity. 14/

14/ The scientific, technical and medical facts relied upon in these findings and throughout this decision are derived from the official publications
of the Bureau of Mines, MESA and MSHA that are cited, as well as the medical
and scientific data set forth in the legislative history of_Title II of the
1969 Coal Act. Section 7(d), 5 U.S.C. § 556(e), of the APA provides:
"* * * Where any agency decision rests on official notice o.f a material
fact not appearing in evidence in the record, any party shall on timely
request be afforded an opportunity to show the contrary." The Attorney
General's Manual on the Administrative Procedure Act (1947) comments: "* * *
the process of official notice should not be limited to the traditional matters of judicial notice but extends properly to all matters as to which the
agency by reason of its functions is presumed to be expert, such as technical or scientific facts within its specialized knowledge . . • Agencies may
take official notice of facts at any stage in a proceeding--even in the ~
final decision--but the matters thus noticed should be specified and any•
party shall on timely request be afforded an opportunity to show the contrary. The matters thus noticed become a part of the record and, unless

1670

Conclusion
I conclude that since all devices approved by the Secretaries and
Congress measure respirable dust on the basis of weight, JJ._/ rather than
particle size, the repeal of section 318(k) and the amendment of section
202(e) did not constitute a legislative repudiation of that method of
measurement· or necessitate a "new" definition of respirable dust.

What the

legislative action did accomplish was a repudiation of the Board's interpretation of respirable dust as only 5 microns or less in "linear" diameter.
7 IBMA 142.
I am asked to choose between interpretations of Congressional intent
that on the one hand makes impossible enforcement of the respirable dust
standard and on the other breathes life and vitality into a standard crucial
to the well-being and longevity of over 150,000 working miners.

It is time

the dead hand of the Board of Mine Operations Appeals was lifted from the
lungs of America's miners.
Where there is a conflict between a statutory interpretation that promotes occupational health and an interpretation that endangers health, the
first must be preferred.

UMWA v. Kleppe, 562 F.2d 1260, 1265 (D.C. Cir.

1977); Secretary v. Old Ben Coal Company, 1FMSHRC1954, 1957 (1979).
fn. 14 (continued)
successfully controverted, furnish the same basis for findings of fact as
does 'evidence' in the usual sense." (pp. 79-80). See also McDaniel v.
Celebreeze, 331 F. 2d 426 (4th· Cir. 1964); Rinaldi v. Ribicoff, 305 F. 2d
548 (2d Cir. 1962); Eastern Associated Coal Corporation, 5 IBMA 185, 204 ~
(1975).
~
15/ Without use of the gravimetric devices measurement of respirable dust
concentrations would be, practically speaking, impossible.

1671

Accordingly, I find the respirable dust standard is enforceable and the
evidence of noncompliance gathered by the personal samplers approved under
Part 74 admissible to· prove the fact of violation.
Based on the parties' stipulations as to the evidence of noncompliance
I find the violations charged did, in fact, occur.

After an independent

evaluation and~~ review of the circumstances and after taking into consideration the other statutory criteria, I find the amount of the penalty
warranted for the Kanawha violation is $200 and for the Beckley violation
$100.
It is ORDERED, therefore, that the record in this matter remain open
for 10 days to afford the parties an opportunity to request time to rebut
the matters officially noticed.

It is FURTHER ORDERED that if a timely

request to rebut matters officially noticed is not received, the operators
ay, July 18, 1980 and that sub-

pay the penalties assessed on

DISMISSED.

ject to payment the captioned matters

Judge
Distribution:
David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, P.O. Box 1989,
Charleston, WV 25327 (Certified Mail)

1672

___

,

APPENDIX I - The MRE Device

rear

front view

8

Schematic: (1) Four channel horizontal eleutriator; (2) nose restrictor;
(3) transfer hood; (4) filter; (5) diaphragm pump; (6) flap valves; (7) pump
output adjusting crank; (8) permissible electric motor; (9) floMneter;
(10) airflow smoothing device,
Sources: IC 8503, IC 8528, February 1971.

1673

- -APPENDIX II

Comparison of sampling characteristics of the MRE device and
the Personal Sampler device with the pulmonary deposition curve .

.\
1: 80

~\ '\.
l
~

Q)

z

~

\

Q)

Q ': 60
1-z
<!0
0::-

'

' _- MRE device
\X
Personal sampler
~

'q

1-!=

\
\

~~ 40
Ww

\

£1. 0

~ 20
0

Pulmonary
deposition

2

4

6

8

10

DIAMETER UNIT DENSITY, SPHERE, microns

Source: IC 8503, February 1971

1674

12

APPENDIX III - The Personal Sampler Unit

( 1)
11

Schematic: (1) hose connection to permissible air pump; (2) filter;
(3) cyclone dust separator, (4) grit pot to collect large particles.
~ources:

IC 8503, IC 8528, February 1971
1675

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

z 7 JUt1 19BO
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. YORK 79-104-M
A.c. No. 30-01696-05003

Petitioner
v.

Noto Excavating, Inc., Mine
NOTO EXCAVATING, INC.,
Respondent
DECISION
Appearances:

William M. Gonzales, Esq., Office of the Solicitor, U.S.
Department of Labor, New York, New York, for Petitioner;
Joseph Noto, Jr., Marlboro, New York, for Respondent.

Before:

Administrative Law 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 ~ ~·, hereinafter referred to as the "Act"). Petitioner filed a proposal for assessment of civil penalty on November 2, 1979,
alleging three violations on June 19, 1979, of mandatory safety standards.
An evidentiary hearing was held on May 28, 1980, in Kingston, New York.
Respondent (Noto) admits the violations and contends only that the civil
penalties proposed by MSHA for those admitted violations were too high. In
determining the amount of a civil penalty that should be assessed for a violation, section llO(i) of the Act requires that six factors be considered:
(1) the history of previous violations, (2) the appropriateness of the penalty to the size of the operator's business, (3) whether the operator was
negligent, (4) the effect of the penalty on the operator's ability to continu~ in business, (5) the gravity of the violation, and (6) the operator's
good faith in attempting to achieve rapid abatement of the violation.
Citation No. 204196 charges a violation of 30 C.F.R. § 56.11-12
(requiring that openings above, below or near travelways through which men
or materials may fall shall be protected by railings, barriers or covers)
because a 3-foot square opening existed at the bottom of a ladder used by
employees several times daily. It is undisputed that there was a drop ctf.
52 inches through the opening and that the hazard was in plain view.

1676

There is no question that as a result of a slip or loss of balance by an
employee injuries could be expected that would result in lost work days or
restricted duty. The condition was corrected within the time specified for
abatement by the opera_tor placing a cover over the hole.
Citation No. 204197 charged a violation of 30 c.F.R. § 56.9-11
(requiring that cab windows be of safety glass or equivalent and be kept
in good condition) in that the front-end loader being used by one of the
owners had a badly shattered windshield. Since one of the owners himself
was using the loader the operator in fact knew of the violative condition.
It is undisputed that the windshield in that condition could result in glass
falling onto the machine operator causing lacerations resulting in lost work
days or restricted duty. The condition was corrected the same day as cited
when the operator replaced the windshield with a $46 sheet of plexiglass.
Citation No. 204918 charged a violation of 30 C.F.R. § 56.9-22
(requiring berms or guards on the outer banks of elevated roadways) in that
there was no berm along the outer portion of the main haul road to the
plant. There was a high risk of a vehicle going over the 15~foot drop-off
from the unbermed portion of the roadway. Resulting injuries from such a
drop could be fatal or permanently disablin·g. The operator explained that
he had difficulty maintaining the berms because of heavy rainfall and washouts. The condition was abated within the time specified.
The operator in this case is quite small in size having only five
employees. All but one are family-related. It has a history of only one violation and that was of a minor nature. The operator admitted that the proposed
penalties totaling $222 "are not going to break me" but he nevertheless submitted an unaudited financial statement as of March 31, 1979, for consideration in mitigation of penalties. While the weight that can be given to
unaudited financial statements is minimal, even assuming, arguendo, the accuracy of the statements, it is clear that the penalties herein would have no
impact on Respondent's ability to continue in business. I consider in this
case, however, the extraordinary good faith shown by the operator in abating
these violations almost immediately. I also give consideration to the fact
that this is essentially a family business and therefore there is additional
motivation to see that the employees are protected from health and safety
hazards. Under the circumstances, I find that the following penalties are
appropriate and Respondent is ordered to pay these amounts within 30 days
of the date of this decision: Citation No. 204196: $50; Citation No. 204197:
$50; Citation No. 204198: $70

1677

Distribution:
William M. Gonzales, Esq., Office of the Solicitor, U.S. Department of
Labor, 1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail)
Joseph Noto, Jr., President, Noto Excavating, Inc., P.O. Box 57,
Route 9W, Marlboro, NY 12542 (Certified Mail)

1678

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--

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52o1 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 7 JUN 1980

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 79-360

A.c. No.

Petitioner
v.

Robinson Run 95 Strip Mine
KING KNOB COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Catherine Oliver, Esq., and James Swain, Esq., Office of
the Solicitor, u.s. Department of Labor, for Petitioner;
Duane Southern, Esq., Fairmont, West Virginia, for
Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977
(30 u.s.c. § 801 et seq., the "Act"). On October 5, 1979, Petitioner filed
a proposal for asses"'Snient of civil penalty, for an alleged violation on
January 29, 1979, of mandatory safety standard 30 C.F.R. § 77.410, charging
that one of the operator's pickup trucks had no backup alarm. Respondent
King Knob Coal Company, Inc. (King Knob), filed its answer on October 22,
1979, and an evidentiary hearing was held in Wheeling, West Virginia, on
March 19, 19 80.
The primary issues in this case are (1) whether Respondent has violated
the provisions of the Act and implementing regulation as alleged in the petition for assessment of civil penalty filed herein, and, if so, (2) the appropriate civil penalty to be assessed for the alleged violation.
I.

The Alleged Violation

The cited standard, 30 C.F.R. § 77.410, provides as follows: "[M]obile
equipment, such as trucks, forklifts, front-end loaders, tractors and •
graders, shall be equipped with an automatic warning device which shall.give
an audible alarm when such equipment is put in reverse.'' Clearly, pickup

1679

trucks are "mobile-equipme~t-such as trucks" and therefore, under the standard, must be equipped with automatic backup alarms. Since King Knob concedes that the subject pickup truck did not have the specified warning
device it is apparent that the violation is proven as charged.
By way of defense King Knob argues that MSHA had previously advised it
that pickup trucks need not comply with the cited standard so long as the
operator's view directly behind the vehicle is not obstructed. King Knob
also contends, of course, that the truck at issue did not have an obstructed
view to the rear and argues that MSHA should therefore be estopped from
enforcing the standard against it. MSHA admits that it had such an enforcement policy and that it informed King Knob of that policy before the violation in this case had occurred. J:./
The argument presented by King Knob is essentially one of equitable
estoppel. Generally stated, equitable estoppel is a doctrine for adjusting
the relative rights of parties based upon a consideration of justice and
good conscience. Small v. Robinson, Inc. v. United States, 123 F. Supp. 457,
463 (S.D. Cal. 1954) Peoples National Bank v. Manos, Inc., 84 SE.2d 857, 870,
45 ALR 2d 1070 (1954); 28 Am. Jun. 2d Estoppel and Waiver §28. The doctrine
does not generally apply against the Government, however. Utah Power & Light
Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed 791 (1916); Federal
crDp Insurance Corporation v. Merrill, 332 U.S. 380, 92 LEd 10, 68, S.Ct. 1
(1947). Although these decisions have been somewhat eroded and, according
to one commentator, 2/ have been "effectively overruled or superseded by
lower court decisions" that erosion has occurred where the governmental
action has involved a proprietary function but not where it has involved a
sovereign function. Cf. United States v. Georgia Pacific Co., 421 F.2d 92
at pp. 100-101 (9th Cir. 1970) Davis, n. 2, supra, § 170.03 and cases cited
therein. Enforcement of mine safety standards is clearly not a proprietary
function but is a unique governmental function for the benefit of the public. Georgia Pacific, supra at P• 101 •. It is similar to the enforcement
discretion of Federal prosecutors found in United States v. Wallace, 578
F.2d 735 (8th Cir. 1978) not to be a proper subject for judicial scrutiny.
See also, United States v. Hayes, 589 F.2d 811 (5th Cir. 1979). Indeed even
Professor Davis concludes that enforcement officers may safely issue nonenforcement or selective enforcement guidelines, without fear of conferring
rights on private parties. Davis, Administrative Law Treatise, 2nd Ed.
(1979), § 9:10. I conclude, therefore, without considering whether the
facts herein would otherwise warrant application of the principles of
equitable estoppel, that the doctrine can not be successfully invoked as
a defense to violations of the Act and its implementing regulations. This

1/ While this apparent exception seems to have some substance, since in
-;eality no pickup truck has a completely unobstructed view to the rear, a
literal reading of the policy would mean that there is in fact no exception
at all.
./
2/ Davis, Adminstrative Law of the Seventies, supplementing Administrative
Law Treatise (June 1976), § 17.0l.

1680

-

.

-- --

conclusion does not mean, however, that due consideration will not be given
to equitable factors present in any such case in determining negligence vel
non, and the amount of penalty to be imposed under section llO(i) of the
AC't. Moreover, this conclusion should not be construed as condoning the
ill-advised practices followed by MSHA in this case.
II.

The Appropriate Penalty

In determining the amount of a civil penalty to be assessed, section
llO(i) of the Act requires that six factors be considered: (1) whether the
operator was negligent; (2) the gravity of the violation; (3) the history
of previous violations; (4) the appropriateness of the penalty to the size
of the operator's business; (5) the operator's good faith in attempting
rapid abatement of the violation; and (6) the effect of the penalty on the
operator's ability to continue in business:
Negligence: As previously discussed, MSHA in fact had an enforcement policy (and had informed King Knob of that policy before the violation in this case had occurred) that pickup trucks need not_comply with
the cited standard so long as the operator's view directly behind the
vehicle is not obstructed. Under MSHA's regulations, "no negligence"
means that the operator could not reasonably have known of the violation.
30 C.F.R. § l00.3(d)(l). Under the circumstances if King Knob believed
that it was in compliance with the MSHA policy directive and that belief
was reasonable then I would be inclined to find an absence of negligence.
The essential facts are not in dispute. The subject pickup truck was
equipped with dual outside rearview mirrors and one inside rearview mirror
and had a rear window 16 inches high by 60 inches wide. The lower 6 inches
of the window was covered, however, by a tool box mounted directly behind
it. The truck operator, pit foreman Richard Ford, testified however that
the tool box did not obstruct his view of the critical area behind the truck
but only the truckbed itself. MSHA produced no probative evidence as to the
degree of obstruction and therefore Ford's testimony is uncontradicted. The
inspector who testified on behalf of MSHA had no firsthand knowledge of the
degree of obstruction, if any, and only surmised that the view to the rear
was obstructed based on what he heard from others. The inspector who actu-·
ally did look through the rear window did not testify. His ·observations were
deficient in any event since when he looked through the window there was an
additional 6 to 7 inches of snow piled on top of the tool box leaving only
3 or 4 inches of window exposed. 3/ No one apparently bothered to remove
the snow to make a determination of the obstructive effect, if any, of the
tool box itself.
]./ Even though MSHA made its estimates of restricted vision while snow
was covering part of the rear window, it conceded at hearing that such a
temporary obstruction in itself would not warrant the use of a backup aiarm
under its policy. What MSHA policy would have been if the tool box in this
case had not been bolted down but rather was a permanently placed portable
toolbox is anybody's guess.

1681

I find that l>_as~_d __oll--th-is- evidence King Knob could have reasonably
believed it was in compliance with MSHA's policy excepting pickup trucks
from the backup alarm standard where the operator's view to the rear is
not obstructed. I therefore find King Knob not to have been negligent in
failing to have a backup alarm on the cited truck. I of course make no
conclusion as to whether negligence may otherwise have been involved in
the fatality in this case. That is not an issue before me.
Gravity: The violation here was serious (though due in large part to
MSHA's confusing enforcement policy) and was no doubt a factor resulting
in the tragic death of a miner employed by King Knob, when the subject
truck backed into him.
History:

King Knob has no history of violations at the Robinson Run

Mine.
Size of Business: Annual production for the mine was 172,464 tons and
for the operator was 1,299,949 tons, thereby placing it in a medium size
category.
Good Faith Abatement:
the time allotted.

A backup alarm was installed on the truck within

Ability to Stay in Business: There is no evidence that any penalty
would affect the operator's ability to stay in business.
Considering all of these factors, I conclude that a nominal penalty
of $10 is appropriate. The operator is therefore o dered to pay a penalty
of $10 within 30 days of this decision.
I
I

I

G~

Airn

w Ju

e

Distribution:
Catherine Oliver, Esq., and James Swain, E q.,
ice of the Solicitor,
u.s. Department of Labor, 3535 Market\~t eet, Room 14480, Philadelphia,
PA 19104 (Certified Mail)
Duane Southern, Esq., Rose, Southern & Padden, First National Bank Bldg.,
P.O. Box 1307, Fairmont, WV 26554 (Certified Mail)

•u.s. GOVERNMENT PRINTING OFFICE : 1980 0-311-143/3456

1682