October 1983
Commission Decisions
10-06-83
10-27-83
10-31-83

Kenneth Wiggins v. Eastern Assoc. Coal
R.Collins & V.Kelley v. Sec. of Labor
Southwestern Illinois Coal Corp.

WEVA 82-300-D
EAJ 83-1
LAKE 80-216

Pg. 1668
Pg. 1671
_Pg. 16 72

SE 82-20-M
PENN 83-3
PENN 83-39
WEST 81-224
PENN 81-157
PENN 83-118
KENT 83-38-D
LAKE 80-413-R
PENN 82-299
PENN 83-112-D

Pg. 1686
Pg. 1724
Pg. 1728
Pg. 1734
Pg. 1743
Pg. 1747
Pg. 1749
Pg. 1750
Pg. 1752
Pg. 1757

PENN .83-86
KENT 83-62
WEST 80-83
LAKE 83-57
LAKE 83-80-M
PENN 82-300
KENT 83-178-R
WEST 82-1-M
WEST 82-195-DM
KENT 83-137
LAKE 83-74-M
LAKE 83-75-M
LAKE 83-76-M
LAKE 83-77-M
LAKE 83-81-M
PENN 83-52
WEST 83-111-M
VA 82-51-R
WEST 81-393-M
CENT 81-258-DN
KENT 83-246
PENN 83-40
KENT 83-207
PENN 83-47
WEST 80-446-M
WEVA 83-170

Pg. 1759
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Pg. 1824
Pg. 1861
Pg. 1862
Pg. 1863
Pg. 1867
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Pg. 1878
Pg. 1887

Administrative Law Judge Decisions
10-03-83
10-04-83
10-04-83
10-04-83
10-05-83
10-05-83
10-06-83
10-06-83
10-06-83
10-06-83
10-06-83
10-07-83
10-07-83
10-11-83
10-11-83
10-11-83
10-12-83
10-12-83
10-13-83
10-14-83
10-14-83
10-14-83
10-14-83
10-14-83
10-14-83
10-14-83
10-14-83
10-17-83
10-17-83
10-19-83
10-19-83
10-19-83
10-24-83
10-25-83
10-28-83
10-28-83

International Minerals & Chemical Corp.
U.S. Steel Mining Co., Inc.
U.S. Steel Mining Co., Inc.
Price River Coal Company
Helvetia Coal Company
Solar Fuel Company
MSHA/ .Eperson v. Jolene, Inc.
Monterey Coal Company
U.S. Steel Mining Company, Inc.
UMWA on behalf of Louis Maholic v.
Andy Onficer and BCNR Mining Corp.
Glen Irvan Corporation
Coal Carriers, Inc.
Price River Coal Company
Nugent Sand Company, Inc.
Medusa Cement Company
U.S. Steel Mining Company, Inc.
Lit~le Sandy Coal Sales, Inc.
American Mine Services, Inc.
Edwin Webber v. Harrison Western Corp.
Pyro Mining Company
Medusa Cement Company
Medusa Cement Company
Medusa Cement Company
Medusa Cement Company
Medusa Cement Company
U.S. Steel Mining Co., Inc.
·Ross Island Sand & Gravel Co.
Clinchfield Coal Company
Kennecott Minerals Company
MSHA/E. Gaddy v. Anchor Stone Company
R. F. H. Coal Company
U.S. Steel Mining Company, Inc.
Shamrock Coal Company, Inc.
U.S. Steel Mining Company, Inc.
Energy Fuels Nuclear, Inc.
Westmoreland Coal Company

Commission Decisions

OCTOBER
The following cases were Directed for Review during the month of October:
Secretary of Labor, MSHA v. U.S. Steel Mining Co.; Docket No. WEVA 82-387,
(Judge Steffey, August 30, 1983).
Old Ben Coal Company v. Secretary of Labor, MSHA, Docket No. LAKE 83-50-R,
(Judge Moore, August 30, 1983).
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-336,
(Judge Broderick, September 12, 1983).
Little Sandy Coal Sales, Inc. v. Secretary of Labor, MSHA, Docket No.
KENT 83-178-R, (Judge Moore, October 12, 1983).
Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Co., Docket No. LAKE 83-36,
(Judge Broderick, September 19, 1983).
Review was Denied in the following cases during the month of October:
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-321,
(Judge Broderick, September 12, 1983).
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-337,
(Judge Broderick, September 16, 1983).
Ralph Yates v. Cedar Coal Company, Docket No. WEVA 82-360-D, (Judge Broderick,
September 19, 1983).

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

October 6, 1983

KENNETH A. WIGGINS

v.

Docket No. WEVA 82-300-D

EASTERN ASSOCIATED COAL CORP.
ORDER
This discrimination case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 !:.!_~· (1976 & Supp. V 1981). On
September 6, 1983, the administrative law judge issued a "Decision on
the Merits" in which he held that Ec:.stern Associated Coal Corp. had
discharged Kenneth A. Wiggins in violation of section 105(c) of the Mine
Act. 30 U.S.C. §815(c). The judge did not, however, award the miner relief.
Instead, "Pending a Final Order" in this case, the judge allowed the miner
15 days from the date of his decision on the merits to submit a proposed
order granting relief. The judge further allowed the operator 15 days from
receipt of the miner's proposed order in which to reply. On October 3, 1983,
Eastern Associated filed a petition for review of the judge's September 6,
1983 decision on the merits. ±./
Section 113(d)(l) of the Mine Act (30 U.S.C. §823(d)(l)) and Commission
Rule 65(a) (29 C.F.R. §2700.65(a)) require that the decision of the judge
contain an order that finally disposes of the proceedings. Because the
judge has not as yet issued an order granting the miner appropriate relief
he has not finally disposed of the case. Thus, the issuance of his decision on the merits did not initiate the running of the statutory review
period. Jurisdiction in the case remains with the judge. Campbell v. The
Anaconda Co., 3 FMSHRC 2763 (December 1981); McCoy v. Crescent Coal Co.,
3 FMSHRC 2475 (November 1981).

Y The petition was styled, "Respondent's Petition for Interlocutory
Review or in the Alternative for Discretionary Review." We read the
petition as one for discretionary review. To the extent that it is
intended as a petition for interlocutory review, it is denied.

83-10-3

1668

Accordingly, the petition for review is dismissed as premature. The
parties may file petitions for discretionary review in accordance with
section 113 of the Mine Act and Connnission Rule 70 (29 C.F.R. §2700.70)
once the jud.ge has issued an order finally disposing of this proceeding.

1669

Distribution
Larry W. Blalock, Esq.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553
Charleston, West Virginia 25322
William B. Talty
Talty and Carroll
112 Central Avenue
P.O. Box 104
Tazewell, Virginia

24651

Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

16~0

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

October 27, 1983
RUSSELL COLLINS AND VIRGIL KELLEY
Docket No. EAJ 83-1

v.

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

J

ORDER
The motion filed by counsel for Russell Collins and Virgil Kelley for
permission to withdraw their petition for discretionary review in this
matter is granted. Accordingly, our direction for review issued on
September 2, 1983, is hereby vacated and the administrative law judge's
decision stands as the tinal Commission order in this proceeding.

83-10-15

1671

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

20006

October 31, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 80-216

v.
SOUTHWESTERN ILLINOIS COAL
CORPORATION
DECISION

In this civil penalty case arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 ~~· (1976 & Supp. V 1981), we are
called upon to interpret the phrase "shall be required to wear ••• safety
belts and lines" in the surface coal protective clothing standard, 30 C.F.R.
§ 77.1710(g). 1_/ The Department of Interior's Board of Mine Operations

i_/

Section 77.1710 provides:
Protective clothing; requirements.
Each employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall
be required to wear protective clothing and devices as
indicated below:
(a) Protective clothing or equipment and
face-shields or goggles shall be worn when
welding, cutting, or working with molten metal
or when other hazards to the eyes exist.
(b) Suitable protective clothing to cover
the entire body when handling corrosive or toxic
substances or other materials which might cause
injury to the skin.
(c) Protective gloves when handling materials
or performing work which might cause injury to the
hands; however, gloves shall not be worn where they
would create a greater hazard by becoming entangled
in the moving parts of equipment.
(d) A suitable hard hat or hard cap when in or
around a mine or plant where falling objects may
create a hazard. If a hard hat or hard cap is
painted, nonmetallic based paint shall be used.
(e) Suitable protective footwear.
(f) Snug-fitting clothing when working around
moving machinery or equipment.
(g) Safety belts and lines where there is danger
of falling; a second person shall tend the lifeline
when bins, tanks, or other dangerous areas are entered.
(h) Lifejackets or belts where there is danger
from falling into water.
(i) Seatbelts in a vehicle where there is a danger
of overturning and where roll protection is provided.
(Emphasis added.)

1672

83-10-19

Appeals held that the identical phrase in the underground coal protective
clothing standard imposed on operators the duty to "establish a safety
system designed to assure that employees wear [the clothing or equipment]
on appropriate occasions" and to "enforce such system with due diligence."
North American Coal Corp., 3 IBMA 93, 107 (1974). In his decision below,
the Commission administrative law judge found North American analogously
persuasive, concluded that the operator had satisfied the North American
criteria, and vacated the citation. 3 FMSHRC 871 (April 198l)(ALJ). We
approve the judge's adoption of the North American construction, but
reverse his finding that the operator satisfied the North American
criteria. We conclude that the facts show a violation, and remand for
assessment of penalty.
On November 5, 1979, an inspector from the Department of Labor's
Mine Safety and Health Administration (MSHA) issued a citation to
Southwestern Illinois Coal Corporation alleging a violation of section
77.1710(g) at Southwestern's Captain Strip Mine in Illinois. The
inspector issued the citation when he observed a miner working alone
without a safety belt and line on a large stripping shovel where the
inspector believed there was a danger of falling.
The miner, assigned to work as the shovel groundman, was repairing a
broken grease line on the end of one of the shovel's steering arms. He was
kneeling at the place where the arm was joined at right angles to the
shovel's steering cylinder. (The steering arm and cylinder functioned
together to turn one of the tracked crawlers on which the shovel traveled.)
The miner's immediate work location was approximately two feet wide and 12
to 15 feet off the ground. 3 FMSHRC at 873, 875, 878; Tr. 16-17, 72-75,
87, 89-90; Pet. Exh. No. 2. There were no guardrails or similar protective
devices on the steering arm or cylinder. As the inspector approached, the
miner walked down the steering arm to the crawler tracks and off the machine.
The inspector spoke with the miner about the use of a safety belt and a line,
and the miner offered no explanation as to why he had not been using them.
At the time of the citation, the shovel was not being used for
stripping, although its power was on. The shovel had an automatic leveling
mechanism that periodically moved the machine, including the steering arm,
to level positions. Safety belts were kept on the shovel. According to
Southwestern's safety director at the Captain Mine, these belts were intended
for "the men to use if they are going to get in an area [on the shovel] where
they think there is a danger of falling." Tr. 77.
A few days after the MSHA citation, the safety director issued the
miner a safety violation for working in an "elevated work position without
wearing a safety belt" in violation of federal, state, and company rules.
The violation was charged to the miner pursuant to Southwestern's program
of progressive discipline for violations of safety rules. This program
was contained in Southwestern's safety booklet issued to all employees.

1673

The booklet included specific rules requiring the wearing of safety belts
and lines. l:/
At the hearing, the inspector testified that he believed there was
a danger of falling, within the meaning of section 77.1710(g), in the
area where the miner was working without a belt. The inspector based
this conclusion on his observations that the work area was elevated, small,
and unguarded, that grease was likely to accumulate there, and that the
machine could move while the miner was working. Southwestern's overall
director of safety and training testified that the decision whether to
'
wear a belt
in a particular situation was largely up to the miner himself.
He agreed that, if the facts were as the inspector testified, there was
a danger of falling where the miner was working and he should have been
wearing a belt.
The judge adopted and applied North American, supra. He thus
interpreted the phrase "shall be required to wear" to mean only thatoperators must require belts to be worn, not that operators must insure
.absolutely that they are worn. On this basis, the judge concluded that
Southwestern passed the North American test. He relied on the facts that
a safety belt was available on the shovel, that Southwestern had
promulgated safety rules requiring miners to wear the belts, and that the
company enforced its rules by disciplining violators. In light of these
determinations, the judge vacated the citation.
We first construe the phrase "shall be required to wear." In
North American, the Board interpreted the identical phrase in the underground coal protective clothing standard, 30 C.F.R. § 7S.1720(a). 3/
Although a failure to wear safety goggles was the specific issue in
that case, the more significant focus of the North American decision was
on the general meaning of "shall be required to wear." The Board concluded
that these words meant only that operators must (1) establish a safety
system requiring the wearing of the clothing or equipment and (2) enforce
2/
The safety booklet contained two rules concerning safety belts and
lines:
Safety belts and lanyards shall be worn if necessary.
Safety belts and lines shall be worn at all times
where there is a danger of falling. If belts or
lines present a greater hazard or are impractical,
notify your supervisor so that alternative precautions are taken.
Res. Exh. No. 1, Section VII, Rules 8 & 9, p. 8.
From the time of the safety booklet's publication in 1978 to the
hearing, Southwestern issued approximately SO safety violations, three
of which (including the one issued to the miner) involved safety belt
infractions. The majority of the SO violations were first warnings.

2./

Like the surface standard at issue in this case, section 7S.1720
begins by providing that "each miner ••• shall be required to wear the
following protective clothing and devices" (emphasis added), and then
lists the covered items in a number of subsections.

the system diligently. 3 IBMA at 107. The intended effect of this
construction was that if a failure to wear the protective clothing and
equipment was "entirely the result of the employee's disobedience or
negligence rather than a lack of requirement by the operator to wear
them, then a violation has not occurred" (emphasis added). Id. 4/ We
agree with the judge that the North American construction is-rhe-natural
reading of the words in issue.
The regulation does not state that the operator must guarantee that
belts and safety lines are actually worn, but rather says only that each
employee shall be required to wear them. The plain meaning of "require"
is to ask for, call for, or demand that something be done. See Webster's
Third New International Dictionary (Unabridged) 1929 (1971).~ccordingly,
when an operator requires its employees to wear belts when needed, and
enforces that requirement, it has discharged its obligation under the
regulation. We respectfully disagree with our dissenting colleagues
that "shall be required to wear" means "shall be worn." The two phrases
are not the same, and we do not find persuasive a reading that converts
a duty to require into a duty to guarantee·. Certainly, the purpose of
the standard is to protect miners, but the standard as written provides
for that protection by directing that operators require the belts to be
worn.
The Secretary of Labor argues through counsel that the regulation
should be read as if the words "shall be worn" are contained in the
regulation. If the Secretary wanted that phrase to obtain we are constrained to ask why he did not make the appropriate changes nine years
ago when North American was issued. To tell us now that "shall be
required" is the same as, or stronger than, "shall be worn" is an
assertion that cannot be squared with the Secretary's understanding of
North American. Further, the words "shall be worn" are used in other
regulations promulgated by the Secretary. 2_/ In effect, the Secretary
is asking us to amend the regulation, but amendment is his province, not
ours. The Connnission is an independent adjudicatory agency that provides
trial and appellate review under the Mine Act.
Our holding is restricted to the language of this standard, and
does not create an employee disobedience or negligence exception to the
liability without fault structure of the Mine Act. Our concern is only
with the duty of care imposed by this one regulation and, as indicated
above, we hold that the duty is one of requirement diligently enforced,
not guarantee.
4/
After the issuance of North American, some discerned in the decision
-; recognition of a general employee disobedience and negligence exception
to the liability without fault structure of the 1969 Coal Act. The Board
itself repudiated that reading of the decision and any such exception to
the liability scheme of the 1969 Coal Act (Webster County Coal Corp.,
7 IBMA 264, 267-68 (1977)), and we have done the same. Nacco Mining Co.,
3 FMSHRC 848, 849 & n. 3 (April 1981).
5/
The metal and nonmetal personal protection standards dealing with
-;afety belts and lines use the phrase, "shall be worn." 30 C.F.R.
§§ 55.15-5, 56.15-5 and 57.15-5.

1670

We also conclude, however, that the judge erred in finding that
Southwestern satisfied the North American criteria. Although Southwestern had ·safety rules requiring the wearing of belts and provided
some general training on the subject, the record does not show
sufficiently specific and diligent enforcement of that requirement.
As noted in the summary of facts above, Southwestern's general
director of safety and training testified that the decision whether to
wear a belt was largely up to the miner himself. At oral argument
before the Commission, Southwestern's counsel reinforced this point by
stating that the use of a safety belt in any given situation at the
mine was "optional" with the employee. The general safety director
also testified that there were no signs at the mine reminding employees
to wear belts, and conceded that no safety analysis had been conducted
or directives issued to identify specific working situations where belts
should be worn. We do not suggest that the operator necessarily had to
engage in any one of these steps to satisfy its responsibilities under
the standard, but we find a virtual absence of any specific guidelines
and supervision on the subject of actual fall dangers.
In sum, the evidence reveals that the wearing of belts was delegated
to the discretion of each employee, with only general guidance at best.
As a matter of law and evidence, this fa~ls short of demonstrating due
diligence in enforcement. It is impo.rtant to note in contrast, in the
North American case, that the operator had a more specific program aimed
at avoiding the particular hazard through prominent signs and constant
verbal warnings and reinforcement of safety considerations. 3 IBMA at
107-08.
Regarding the incident that led to the citation, there is no dispute
that the miner was working unsupervised on an elevated platform without a
belt and line. The evidence also clearly shows that there was a danger of
falling. fl_/ The decision not to wear the belt was made by the miner, but
6/
The miner's work platform was only about two feet wide and 12 to 15
feet off the ground. This was an area where grease lines and fittings
were located, and as the inspector testified it was likely that grease
would accumulate there causing a slippery surface. The shovel's power
was on, and it also had an automatic leveling device that could move the
steering arm on which the miner was working. Thus, the machine could
have moved during his work. Applying the analogous test we recently
adopted in Great Western Electric Co., 5 FMSHRC 840, 841-42 (May 1983),
to assess fall dangers under a metal and nonmetal personal protection
standard (30 C.F.R. § 57.15-5), we conclude that an informed, reasonably
prudent person would have recognized a danger of falling under these
circumstances. The mine's safety director initially testified that he
had measured the work area to be about four feet wide; however, he
subsequently conceded that he incorrectly made his measurements further
back on the steering arm. He also testified, without explanation, that
he did not believe there was a danger of falling where the miner was
working. The facts summarized above do not support this opinion.

167G

it represented an exercise of the wide discretion expressly permitted
him under Southwestern's decentralized, non-specific safety belt program.
Accordingly, the failure to wear·the belt in this instance was attributable to the operator's failure to enforce diligently its belt requirements, and constituted a violation of the standard.
For the foregoing reasons, we approve the judge's adoption of the
North American interpretation of section 77.1710(g), but conclude that
Southwestern nevertheless violated the standard so construed. We remand
for determination of an appropriate penalty.

~ ~;er~c&;::
L. Clair Nelson, Commissioner

1677

Frank F. Jestrab specially concurring in result:
I agree with the majority of the Commission that the judge should
be reversed.
I understand the learned majority of the Commission to base their
decision on the so-called North American defense set forth by the Board
of Mine Operations Appeals wherein it was held that an "identical"
phrase "shall be required to wear" required the employer to establish a
safety system "requiring the wearing of clothing or equipment and
enforce such system diligently." My colleagues further state that
"shall be required. to wear" and "shall be worn" are not the same and
they "do not find persuasive a reading that converts a duty to require
into a duty to guarantee." From this I apprehend that we would all
agree, as we have in the past, that if the pivotal phrase was "shall be
worn," North American would not apply and the operator's safety program
and its efforts to enforce it would be irrelevant to the finding of a
violation. U.S. Steel Corporation, 1 FMSHRC 1306, 1307 (1979).
With all deference and respect to the majority, I am not satisfied
that there is any distinction in the duty imposed on the operator under
the Mine Act by the phrase "shall be required to wear ... " and the simple
"shall be worn." However, I do not reach the question of the meaning of
"shall be required to wear" in this case because as I read the regulation
it is not the applicable verb phrase for the subsection which was cited
for the violation. Whether the duty imposed is a duty to enforce a
program (shall be required to wear) or a duty imposing liability without
fault (shall be worn), we agree that the operator has not satisfied his
duty in this case and that the decision of the administrative law judge
should be reversed. I concur in that result, but I base my decision on
narrower grounds.
It seems to me that our first assignment is to interpret the
regulation at§ 77.1710 1__/. The initial clause of subsection (g), which

1../

§ 77.1710 Protective clothing; requirements.
Each employee working in a surf ace coal mine or
in the surf ace work areas of an underground coal mine
shall be required to wear protective clothing and
devices as indicated below:
(a) Protective clothing or equipment and faceshields or goggles shall be worn when welding, cutting,
or working with molten metal or when other hazards to
the eyes exist.
(b) Suitable protective clothing to cover the
entire body when handling corrosive or toxic substances
or other materials which might cause injury to the skin.
(c) Protective gloves when handling materials
or performing work which might cause injury to the hands;
however, gloves shall not be worn where they would create
a greater hazard by becoming entangled in the moving
parts of equipment.
(Footnote continued)

1678

was cited here, contains no independent verb. The appropriate verb,
which must be supplied by reference is, in my view, the last preceding
verb in the series, which is found not in the preamble to the regulation
as the majority suggests, but rather in subsection (a). The verb phrase
in subsection (a) is shall be worn. 'l:..J Further, a proper verb form must
agree with other verbs in the same subsection and in the second clause
in subsection (g), it is provided that a person shall tend the lifeline.
It does not say "shall be required" to tend. If I am correct, and I
believe that I am, then North American has no relevance to this case
and the operator's duty here is a duty imposing liability without fault. 1/
U.S. Steel Corporation, supra, and Mid-Continent Coal and Coke Co.,
supra at n. 2.
Second, it is well established that the Mine Act imposes liability
without fault upon operators. Southern Ohio Coal Co., 4 FMSHRC 1459
(1982), A.H. Smith Stone Company, 5 FMSHRC 13 (1983). The authority
which Congress delegated to the Secretary of Labor carries with it the
responsibility to promulgate regulations which mirror the concept of
fn. 1/ continued
(d) A suitable hard hat or hard cap when in or
around a mine or plant where falling objects may create
a hazard. If a hard hat or hard cap is painted, nonmetallic based paint shall be used.
(e) Suitable protective footwear.
(f) Snug-fitting clothing when working around
moving machinery or equipment.
(g) Safety belts and lines [shall be worn] where
there is danger of falling; a second person shall tend
the lifeline when bins, tanks, or other dangerous areas
are entered.
(h) Lifejackets or belts where there is danger of
falling into water.
(i) Seatbelts in a vehicle where there is a danger
of overturning and where roll protection is provided.
(Emphasis mine. Phrase in brackets also mine, supplied
by relation back to subsection (a) to illustrate how I
read (g).)

!:_/ Upon previous examination of subsection (a) of 30 C.F.R. § 77.1710
the Commission interpreted the phrase "shall be worn" according to its
literal meaning, Mid-Continent Coal and Coke Co., 3 FMSHRC 2502, 2506 (1981).
See U.S. Steel Corporation, supra.

1/

For the record, the regulation at issue here is not the same as the
regulation cited in North American. That regulation is 30 C.F.R. § 75.1720,
of which subsection (a) was cited. Note that there is no verb in
subsection (a) and to supply one it is necessary to relate back to the
last, preceding verb which is "shall be required to wear", appearing in
(Footnote continued)

167f1

liability without fault--that is, regulations with which compliance is
mandatory. It seems clear to me that the regulation at issue does just
that; the wearing of personal protective equipment is mandated and if it
is not worn, the operator is liable. We have no power to create exceptions
to liability without fault which have not been placed in the Act by
Congress. U.S. v. Atchison T. & S.F.Ry Co., 156 F.2d 457 (9th Cir.
1946).
In this case the operator's employees were observed without the
protective eqbipment required by 30 C.F.R. § 77.1710(g)--safety belts
and lines--where there was a danger of falling. For the reasons set
forth above, I believe this constitutes a violation of that regulation
and' I concur with the result reached by my colleagues in the majority
that the administrative law judge should
reversed a -a violatio
found.

lie

/

fn. ]_/ continued
the preamble.
worn" appear:

I

Nowhere in the regulation does the/verb phrase "shall be
/

Protective clothing; requirement~.
On and after the effective date of th:i,'~ § 75.1720
each miner regularly employed in the act,ivf workings of
an underground coal mine shall be required to wear the
following protective clothing and devices:
(a) Protective clothing or equipment and faceshields or goggles when welding, cutting, or working
with molten metal or when other hazards to the eyes
exist from flying particles.
(b) Suitable protective clothing to cover those
parts of the body exposed to injury when handling
corrosive or toxic substances or other materials which
might cause injury to the skin.
(c) Protective gloves when handling materials or
performing work which might cause injury to the hands;
however, gloves shall not be ~orn where they would create
a greater hazard by becoming entangled in the moving parts
of equipment.
(d) A suitable hard hat or hard cap. If a hard hat
or hard cap is painted, nonmetallic based paint shall be
used.
(e) Suitable protective footwear.
(Emphasis Mine)
§ 75.1720

1680

Commissioner Lawson concurring and dissenting:
I join with my colleagues in finding a violation and that the judge
below must be reversed. I disagree with their interpretation of the
phrase "shall be required to wear," as set forth in 30 C.F.R. 77.1710(g).
That interpretation is not only contrary to the common usage of "require,"
but creates an internal contradiction within section 30 C.F.R. 77.1710
itself, forestalling the application of uniform safety practices and
protection in the mining industry.
Indeed, their definition is significantly--and selectively--less inclusive than that found in Black's Law
Dictionary (5th ed.) (p. 1172), which defines "require," inter alia. to
mean "compel •.. command," certainly not precatory terms.
Subsections (a) and (c) of this standard delineate which protective
clothing "shall be worn," or "shall not be worn." There is no indication
that creation of a third category of protective clothing, which "shall
be worn if directed to do so by the operator," is or was intended. It is
evident that the only purpose of 77.1710(g) is to insure or guarantee that
safety belts must be worn "where there is danger of falling." The miner
is not protected when there is a danger of falling unless he is actually
wearing a safety belt; the wearing of that belt is therefore what the
standard requires.
This interpretation is confirmed by the language of regulation
30 C.F.R. 77.403a(g), to cite but one example. The Secretary has construed
"shall be required to wear" to mean "shall be worn" in 30 C.F.R. 77.403a(g).
That standard provides that:
Seat belts required by 77.1710(i) shall be worn by
the operator of mobile equipment required to be
equipped by ROPS (roll over protection structures) by
77.403(a). (Emphasis supplied.)
The core sense of "require" is to mandate, not exhort--that which
is required, shall be done.
See Mississippi River Fuel Corp. v. Slayton
et al, 359 F.2d 106, 119 (8th Cir. 1966): "Required" implies something
mandatory, not something permitted by agreement."
As the Secretary persuasively points out, the phrase, "shall be
required," emphasizes that it is the duty of the operator to insure the
wearing of safety belts and lines, and that breaching that duty is a
violation of the Act. This construction carries out the purpose of the
Act by expressing the standard's sole purpose: to protect miners from
the danger of falls. Although it appears unnecessary of repetition,
regardless of the existence of even a diligently enforced company rule,
a miner is not protected from the danger of falling unless he is actually
wearing a safety belt. There is no meaningful, nor even semantically
persuasive distinction, between "shall be required to wear" and "shall
be worn."

1681

Moreover, to find that "required" means only "direct" would effectively
vitiate not only this standard, but a multitude of other regulations.
The word "require" or "required" is used no less than thirty-nine times
in part 77 of 30 C.F.R. alone. 1/ If "required" means only to "direct,"
as contended by the majority, then the commands of Part 77, as well as
several other sections of 30 C.F.R., would be rendered nugatory, rather
than compelling that a named protection or action is to be taken to assure
miners' health and safety.
·
Pursuing the ma]ority's reasoning would result in ridiculous constructions. See for example, 30 C.F.R. 75.313, which states that "the
Secretary shall require such monitor to deenergize automatically •••• "
Substituting "direct" for "require," as does the majority here, would
necessitate direction being given to an inanimate object--an absurd
result. The word "require" or "required" is a mandate to the operator
to guarantee that a methane monitor will deenergize automatically, as in
section 75.313, and that safety belts shall be worn, as set forth in
section 77.1710. ]:_/
Adopting the majority's test would thus be an invitation to an
operator, despite the fact that its miners are being subjected to safety
and health hazards, to avoid responsibility merely by demonstrating that
it has established a safety and health program under which miners are
told to wear safety belts. Uniform safety practices and protection
throughout the mining industry, 1_/ absent clearly defined exceptions,
are the obvious goal of the Act and these regulations.
This interpretation is congruent with those final--and absolute-responsibilities placed upon the operator by the Act to prevent safety
and health hazards to miners, including forestalling employees from
engaging in unsafe and unhealthful activities. 30 U.S.C. § 80l(e) and
30 U.S.C. § 8ll(a)(7).

1/

A complete review of all of the six hundred eighty-eight pages of
30 C.F.R. (Part 0-199) has not been made.

]:_/ Section 77.1710 is titled: "Protective Clothing, Requirements."
(Emphasis supplied) Certainly this title does not suggest "directions"
to miners. To the contrary, it means requirements imposed on the
operator.

ll

I agree with my colleague Commissioner Jestrab, for the reasons he
stated, that the authority which Congress delegated to the Secretary
of Labor carries with it the responsibility to promulgate regulations
which mirror the concept of liability without fault. Neither the Secretary
nor this Commission has any authority to interject exceptions. Slip
op. at 8-9. As is well established, if a miner, despite an operator's
best efforts, negligently or disobediently fails to wear a belt, the
operator's efforts toward enforcement, or lack of negligence can be
considered in assessment of a penalty. Nacco Mining Co., 3 FMSHRC 848,
850 (1981).

1682

The Secretary's safety belt standards for other than coal mining
operations all use the phrase "shall be worn."!:±._/ There is no indication,
nor any reason to suppose, the Secretary intended a dichotomous scheme
of protection from dangerous falls for coal miners and other miners.
It is difficult, to understate the case considerably, to meaningfully distinguish between a fall in a coal mine, and one occurring in a noncoal
mine. To the contrary, uniform regulation of such common safety problems
best serves the interests of the miner and the industry.
Finally, the majority's construction of applicable'precedent is also
deficient. The dicta relied upon from North American represents the views
only of the Board of Mine Operations Appeals (BMOA), (a non-independent
body subordinate to the Secretary of the Interior) then charged with the
contradictory responsibilities of maximizing coal production, and enforcing
mine safety. Legis. Hist. 998, 1011, 1154-55.
Moreover, even the BMOA,
in Webster County Coal Corp., 7 IBMA 264, 267-68 (1977) retreated from,
if indeed it did not invalidate, its prior North American dicta. Nor
has the Secretary of Labor, since passage of the Mine Act, taken other
than a consistent position, as advanced by him in this case.
More relevantly, and more recently, this Commission held--unanimously-that "to the extent that these dicta suggest an exception to the liability
without fault structure of the 1969 Coal Act, they are out of line with,
and do not survive, the well established precedents cited above."
Nacco
Mining Co., supra, 849, n.3. See also Pocahontas Coal Co. v. Andrus,
590 F.2d 95 (4th Cir. 1979); El Paso Rock Quarries, 3 FMSHRC 35, 38-39
(1981); Ace Drilling Coal Co., Inc., 2 FMSHRC 790 (1980); aff'd mem.,
(3rd Cir. No. 80-1750, Jan. 23, 1981); Peabody Coal Co., 1FMSHRC1494,
1495 (1979); United States Steel Corp., 1 FMSHRC 1306, 1307 (1979);
Ruston Mining Co., 8 IBMA 255, 259-60 (1978), and Valley Camp Coal Co.,
1 IBMA 196 (1972).
In summary, there is no exception to the present liability without
fault mandate of the Mine Act, nor it would appear did any survive, even
as dicta, the passing of the Board of Mine Operations Appeals. The
economic incentive provided by this keystone of the 1977 Act would
obviously be undercut, if, as the majority now proposes, the law is to
be changed, and only if the operator is negligent in monitoring his
"safety program", is liability to be imposed. As has been often noted,
both under this Act and elsewhere, this Commission must be "guided by
the familiar canon of statutory construction that remedial legislation
should be construed broadly to effectuate its purposes." Tcherepnin v.
Knight 389 U.S. 332, 336 (1967). The Mine Act and the safety standards
promulgated under the Act clearly constitute remedial legislation. As
the United States Court of Appeals for the Third Circuit stated:

4/ 30 C.F.R. §§ 55.15-5 (metal open pit), 56-15-5 (sand and gravel), and
57.15-5 (metal underground), provide that "Safety belts and lines shall be
worn when men work where there is a danger of falling."

1683

The statute we are called upon to interpret is the
out-growth of a long history of major disasters in
* * * mines * * *· [I]n construing safety or remedial
legislation narrow or limited construction is to be
eschewed. Rather, in this field liberal construction
in light of the prime purpose of the legislation is to
be employed. [Citations omitted.]
St. Mary's Sewer Pipe Company v. Director of the United States Bureau
of Mines, 262 F.2d 378, 381 (3rd Cir. 1959).
I agree with the majority that the evidence clearly shows that the
miner was not wearing a safety belt, and that there was a danger of falling.
Accordingly, for the reasons stated above, I conclude that Southwestern
violated 30 C.F.R. § 1710(g) and would remand for determination of an
appropriate penalty.

A. E. Lawson, Commissioner

Administrative Law Judge Decisions

1G8il

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

OCT 3 1983

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE S~FETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. SE 82-20-M
A.C. No. 08-00551-05009

v.

Port Sutton

INTERNATIONAL MINERALS &
CHEMICAL CORP.,
Respondent
DECISION
Appearances:

Ken W. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia,
for Petitioner;
William B. deMeza, Esq., Holland & Knight,
Bradenton, Florida, and Howard E. Post., Esq.,
International Minerals Corporation, Northbrook,
Illinois, for Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking
civil penalty assessments for two alleged violations of the
mandatory noise standards found at 30 CFR 55.50(b). Respondent
filed a timely answer and a hearing was convened in Tampa,
Florida, on June 7, 1983. The posthearing arguments and proposed
findings and conclusions filed by the parties have been considered
by me in the course of this decision.
Issues
The principal issues presented in this proceeding are (1)
whether respondent has violated the provisions of the Act and
the implementing regulatory standard as alleged in the proposal
for assessment of civil penalties, and, if so, (2) the appropriate
civil penalties to be assessed against the respondent for the

1G8G

alleged violations based upon the criteria set forth in section llO(i)
of the Act. Additional issues concerning engineering or administrative feasibility for compliance are identified and discussed herein.
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, P.L.
95-164, effective March 9, 1978, 30 U.S.C. 801 et seq.
2.

Mandatory standard 30 CFR 55.5-50, provides as follows:
55.5-50 Mandatory.
(a) No employee shall
be permitted an exposure to noise in excess
of that specified in the table below. Noise
level measurements shall be made using a sound
level meter meeting specifications for type 2
meters contained in American National Standards
Institute (ANSI) Standard Sl.4-1971.
"General
Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference
and made a part hereof, or by a dosimeter with
similar accuracy. This publication may be
obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York, New
York 10018, or may be examined in any Metal and
Nonmetal Mine Health and Safety District or Subdistrict Office of the Mine Safety and Health
Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day,
hours of exposure
8.
6.
4.
3.
2.

.
.
.

.
.

.

.

.
.
.
.
.

.
.
.
.
.

.
.
.
.

.
.
.
.

Sound level dBA,
slow response
.
.
.
.
.

.
.
.
.

.
.
.
.

.

.

.
.

.
.

.

.

.

.

.

.

1-1/2. . . . . • . • .
1.

.

.

.

.

.

.

.
.
.
.
.

. 90
. 92
. 95
. 97
. 100

• • • .102
.

. 105

1/2. . . . . . . .
. • • . . .110
1/4 or less.
. . • .
. . . 115

168'7

No exposure shall exceed 115 dBA.
Impact or
impulsive noises shall not exceed 140 dB,
peak sound pressure level.
NOTE. When the daily exposure is composed
of two or more periods of noise exposure at
different levels, their combined effect shall
be considered rather than the individual effect
of each.
If the sum

exceeds unity, then the mixed exposure shall be
considered to exceed the permissible exposure
Cn indicates the total time of exposure at a
specified noise level, and Tn indicates the total
time of exposure permitted at that level.
Interpolation betwe~n tabulated values may be
determined by the following formula:
log T = 6.322 - 0.0602 SL
Where T is the time in hours and SL is the
sound level in dBA.
(b) When employees' exposure exceeds that
listed in the above table, feasible administrative or engineering controls shall be utilized.
If such controls fail to reduce exposure to
within permissible levels, personal protection
equipment shall be provided and used to reduce
sound levels to within the levels of the table.
Stipulations
The parties stipulated to the following (Tr. 7-9):
1.

Respondent's products affect commerce and respondent
is subject to the Act.

2.

Respondent's gross business revenues for the fiscal
year 1982 were in excess of one billion dollars,
and the penalties proposed for the citations in
question will not affect the respondent's ability to
remain in business.

3.

Respondent's history of prior citations is that stated
in MSHA's computer print-out, exhibit P-1.

1688

Discussion
Section 104(a) Citation No. 094927, November 26, 1980,
cites an alleged violation of 30 CFR 55.5-50, and the condition
or practice described by MSHA Inspector Arthur McLaughlin states:
The car unloader was exposed to 2.01 times the
permissible limit for noise for a full shift.
Hearing protection was not being worn and all
feasible engineering or administrative controls
were not being utilized.
The inspector fixed the initial abatement time as
December 1, 1980, and on December 3, 1980, he extended the
abatement time to January 2, 1981, and noted as follows:
Ear protection was being worn.
Citation No.
094927 is modified from 55.5-50 to 55.5-50(b),
which requires the development and installation
of feasible engineering controls. The citation
termination due date is also extended to 1-2-81
to allow time to implement control measures.
Hearing protection shall be worn until the noise
levels are reduced to permissible limits.
On January 13, 1981, the inspector extended the abatement
further to February 13, 1981, and he noted as follows:
Various noise control measures have been tried,
but were not satisfactory. The problem had been
referred to the engineering dept.
The extension
is granted to allow time for the engineering
dept. to develop a control measure.
On March 9, 1981, the inspector extended the abatement
time to May 15, 1981, and he noted the following:
C~tation

0094927 is extended to May 15, 1981
to allow MSHA's Pittsburgh Technical Support
Center ample time to evaluate the noise problem
and make a determination as to whether or not
feasible engineering controls are available.
On May 27, 1981, the abatement time.was further extended,
and Inspector Charles D. Cox noted the following:
This citation is extended as additional time
is needed for feasible engineering studies
by MSHA technical support group.

1689

The abatement time was further extended by Inspector Cox
on July 7, 1981, to August 10, 1981, for the reasons stated
immediately above.
Thereafter, on September 1, 1981
he terminated the citation for the following reasons:
This citation is terminated pending development of additional means of noise attenuation
on this equipment which may be required at a
later date.
In the meantime, suitable
protective hearing equipment shall be worn
when persons are exposed to this noise source.
Inspector McLaughlin issued a second section 104(a)
Citation No. 094928, on November 26, 1980, citing a violation
of 30 CFR 55.5-50, and the condition or practice is described
as follows:
The car unloader was exposed to 2.03 times
the permissible limit for noise for a full
shift. Hearing protection was not being
worn and all feasible engineering or administrative controls were not being utilized.
Inspector McLaughlin modified the citation to reflect
a citation to section 55.5-50(b), and both he and Inspector Cox
extended the abatement times to and including August 1, 1981,
and the reasons for these actions are the same as those noted
above in connection with Citation No. 094927. On September 1, 1981,
Inspector Cox terminated Citation No. 094928, for the same reasons
that he terminated the previous citation.
Petitioners proposal for assessment of civil penalties
in this case was filed on December 21, 1981, and it asserts
that respondent operates a mine at Hillsborough County,
Florida, "which produces phosphate and its miners handle or
otherwise work with and on goods, materials, supplies and
equipment produced at or destined for points outside the
State of Florida".
Respondent's answer was filed on January 18, 1982, and
respondent does not dispute MSHA's jurisdictional assertion.
With regard to the alleged violations, respondent's answer
states the following defenses:
a)
there are no feasible administrative or
engineering controls to reduce the noise level
in the area referred to in the citations;
b)
the conduct described in the Citation is
not in violation of the cited standard in

1690

that Respondent has utilized several methods
to reduce the noise level but they have all
proved ineffective and, in compliance with
the cited standard, Respondent provides and
requires miners to wear personal protective
equipment when working in the area referred
to in the Citation;
c)
the conduct described in the Citation was
the result of unpreventable employee misconduct;
d)
the condition described in the Citation is
not such that it would significantly and substantially contribute to the cause and effect
of a mine safety and health hazard;
e)
the existence of the alleged condition
was not the result of an unwarranted failure
to comply with the cited standard.
MSHA's testimony and evidence
MSHA Inspector Arthur McLaughlin confirmed that .he conducted
an inspection at the respondent's phosphate plant on November 25, 1980,
and he was accompanied by union and company representatives.
He also confirmed that he issued two noise citations after
determining that the noise exposure for two employees working
in the plant railroad dumping building exceeded the required
levels. He described the cited work location as an open-ended
building about 100 feet long and 40 feet wide with a railroad
track down the middle and an open grated floor below for the
dumping of the mined materials which are transported to the
building by railroad cars and dumped below and through the
grated floor to a conveyor belt (Tr 12-17).
Mr. McLaughlin stated that the two workmen stationed
in the work area use pneumatic wrenches to open the gates
located at the bottom of the railroad cars, and that the
men are on opposite sides of the car during the dumping process.
He observed that the men were not wearing ear protection
devices, and since the work area was loud, he concluded
that the men were probably over-exposed to noise and he confirmed
this preliminary "noise screening" by use of a sound millimeter.
He returned to the plant the next day, November 26, 1980, to
conduct a full noise compliance survey. He confirmed that he
calibrated and checked his noise and sound level dosimeters,
which he described as a General Radio Type 2, 1954, sound level
meter, and installed the dosimeters on the two workmen.
He
sampled them for a little over seven hours and found that
they were both over-exposed, and both were exposed to 95

1691

decibles. His sound level meter readings were 103 for one
man and 102 for the other, and neither man was wearing any
ear protection on November 26. Mr. McLaughlin believed that
the primary noise source was the pneumatic wrench when it
was engaged to the railroad car door opening fitting (Tr. 17-23).
On cross-examination, Mr. McLaughlin stated that he oerformed
no tests to differentiate the various noise sources present
in the loading area in question, and he confirmed that he
could not have made such tests with the equipment he had
on the da~ of the inspection. He also confirmed that when
he conducted the noise tests he did not have the two employees
under continuous .observation and he could not state whether
the dosimeterswere tampered with during the testing period
(Tr. 23-26).
In response to bench questions, Mr. McLaughlin confirmed
that had the cited workers worked only four hours they would
have been in compliance, and he indicated that the dosimeter
only registers noise levels in excess of 90 dBA's. He also
confirmed that it was respondent's policy to make ear protection
available to employees, but he did not know whether the cited
employees were ever supplied with such ear protection, and he
did not ask them (Tr. 27-28).
Mr. McLaughlin was of the view that in order to comply
with section 55.5-50, a mine operator should conduct noise
surveys, locate any problems, and then attempt to solve them.
He believes that a 90 dBA noise limit is workable, and that
for every 3 decibles of noise reduction, sound pressure
diminishes by 50%. He confirmed that he would have issued the
citations even if the two men had been wearing ear protection, and
he would have cited the respondent for not using engineering
controls to reduce the noise levels (Tr. 32).
Mr. McLaughlin stated that he recommended to the respondent
that a barrier or acoustical wrapping with sound absorption
materials be used to reduce the wrench noise. His recommendation
that personal ear protection be supplied immediately was
followed by the respondent (Tr. 33). He confirmed that the
wrench operators work on both sides of the cars simultaneously,
that they are exposed to the noise from each other's wrench,
and when there is no unloading going on they would simply
sit in the car unloading area (Tr. 34-35).
Mr. McLaughlin indicated that while the car shaker is
another noise source, it is operated from a control booth
and is insulated from noise level above 90 dBA's. He confirmed
that the workers at the car unloading area worked eight hour
shifts, three shifts a day, seven days a week, and that two

1692

persons worked each shift. He did not sample other car unloader
workers, and indicated that noncompliance on one shift would
be inferred as noncompliance on the other shifts (Tr. 36).
He estimated that 50 cars were unloaded on any given day
and he had no reason to suspect that the pneumatic wrenches
were out of compliance prior to the day 0£ his inspection.
He confirmed that the noise problems at the plant were isolated
to the car unloading area, and he believed that the fact that
the respondent installed insulation and a control booth to
reduce the car shaker noise levels indicated that the respondent
was aware of the fact that a noise problem existed (Tr~ 38).
Mr. McLaughlin indicated that he did not return to the plant after
the citations were issued except for the purpose of extending
the abatement times, and he believed that the wrenches in question
were still being used (Tr. 39).
In response to further questions, Mr. McLaughlin stated
that he saw no noise controls installed on the wrenches during
the time he was at the plant and he did not observe the car
shaker in operation. He had no actual knowledge of the
number of daily car trips to the plant, and believed that all
of the cars were of uniform size and construction. He was
not aware of any additional noise citations at the plant since
1980 (Tr. 40-41).
.
Jerry W. Antel, Engineering Technician, MSHA's Physical
Agents Branch, testified as to his background and experience
in the field of noise and noise surveys, and he indicated
that the purposes of such surveys is to identify noise sources
and to make recommendations for noise reductions. He confirmed
that he visited the respondent's Port Sutton Plant in April 1981
and May 1982, and that he did so at the request of MSHA's local
.field office. He confirmed that he conducted his noise survey
at the metal building where the locomotive cars enter on a
rail line to be unloaded onto a belt system which conveys the
mined materials into the planu, and his mission was to
investigate the cited pneumatic wrench noise and to make
recommendations for improvements. During his April visit he
observed two workers in the unloading area, and the locomotive
operator was also present (Tr. 42-47).
Mr. Antel stated that during the April visit he observed
dust collectors on one side if the unloading building, and
car shakers mounted on the other. After calibrating the
dosimeters, he placed them on the two workers, and he
explained the procedures and the results of his survey (Tr. 4751). He confirmed that the primary noise source was the
pneumatic wrench which was used during the loading and unloading
of the railroad cars (Tr. 51). He stated that the sound level
meter readings during the opening of the cars was in the range

I

169J

of 107 to 108 dBA, and 108 to 109 dBA during closing. The
tape recordings revealed 104 to 105 dBA during opening, and 106 dBA
in closing.
The recordings also showed that when the wrench
was running disengaged there were definite peaks in the midfrequency, speech range of 500 hertz, 1000 hertz, 200 hertz.
However, when the wrench was engaged, other areas came into
play which flattened off this spectrum. There were no primary
peaks. He identified exhibit no. 6 as the report he prepared
on the first visit in April and he suggested an enclosure
be constructed around the body of the wrench to muff le both
the exhaust noise and the noise radiating from the wrench
body. He also recommended a flat box be fitted over the
chuck to deflect noise downward.
In addition, he recommended
three administrative controls. One, that the men should usually
leave the area when cars came through; two, that the tram whistle
should not be blown unless necessary; and three, that the flagmen
generally avoid riding in the locomotive cab (Tr. 52-55).
Mr. Antel identified exhibit P-7 as some instructions
for the construction of a wraparound muffler for the reduction
of noise on the wrench in question, and he confirmed that this
was part of his recommendations for reducing the noise on the
wrench.
He also indicated that the wraparound device was
commercially available from the EAR Corporation in Indianapolis,
and he believed that the use of this device would lead to a
·
minimum 5 db reduction in noise, and that the device would
cost about $65 in material and installation, and could be
installed by one man in one day (Tr. 57). He also was of the
view that the installation of this wraparound device would
not lead to any maintenance or utilization problems, and he
stated that he had installed the device on other pneumatic drills
(Tr. 58-59) .
With regard to his second visit in May 1982, Mr. Antel
confirmed that he took note of the noise controls which
the respondent installed on the wrenches in question. These
included modifications to the wrenches by the installation
of sheet steel barrier lines with acoustical foam to shield
the wrench operators from the noise and a hose muffler attached
at the exhaust end of the wrench to cut down the noise (Tr. 59-60).
Mr. Antel identified certain photographs which he took during
both of his visits, and they include the wrench before and
after the acoustical treatment or improvements (exhibits P-5
and P-8).
Mr. Antel stated that the noise control improvements made by
the respondent did not correspond to those which he had recommended,
and using the same sample equipment he used during his April 1981

169·1

visit, he sampled the worker using the treated wrench and
read an exposure of 192%, or 95 dBA over an eight hour sampling
cycle, and an exposure of 453%, or 101 dBA, from the worker
using such a wrench.
The sound level meter indicated readings
of 104, 106 dBA's for the untreated wrench, and 102 and 104
dba's for the treated wrench (Tr. 65).
Mr. Antel stated that he observed the utilization of
the modified wrench for the entire shift on the second day of
the visit. He estimated the noise controls reduced exposure
by 5 dB's and noticed that the operator experi~nced minor
difficulties in engagging the wrench because of the flap.
He
neither noticed nor was informed of any resulting maintenance
problems. He approximated the material cost of IHC's improvements at $95 to $100, and the installation time to be one day.
He considered the 5 dB reduction significant because it could
increase the operation time of the equipment by two fold, and
represented nearly 75% of the sound tolerance. Mr. Antel also
related that MSHA's offer that a wrench be shiped to MSHA
in Pittsburgh, to be modified and tested at MSHA's expense,
with the respondent responsible for shipping, was rejected
by the respondent (Tr. 66-69).
On cross examination, Mr. Antel conceded that some additional
noise generated from the chucks engaged in the car and from
the car itself, but that he did not "isolate or quantify"
these other noise sources. He also conceded that the railroad
cars were of varying sizes and construction, and he did not
believe he had tested the treated and untreated wrenches on
the same car door.
Thus, the testing would not reflect
variations between the wrenches nor between different types
of cars. Of an estimated 50 cars that were opened and closed,
he took measurements of ten to fifteen (Tr. 69-72).
Mr. Antel confirmed that the noise exposure indices for the
two untreated wrenches for the full shift noted in the citations
were 201% and 203%, and he noted that in his report of July 12, 1982
(exhibit P-~ , he found under a similar situation that the
untreated wrench generated noise at a level 453% of the permissible
dosage. He explained the discrepancy in the test results as
follows (Tr. 73-74):
A.
I believe that can be accounted for due
to the variables, not only in the types of
cars, but also in the number of cars that, in
which the wrench is used.
If I could refer
back to my first visit, we witnessed about
fifty cars, fifty-two cars that were being
unloaded that day, but only on about half
of these the wrench was used. And the other

1690

half, they were used, the bar was used to
open it.
So certainly that would influence
the exposures, the number of times the wrench
was used.
Q.
Then you are suggesting that to compare
those two numbers is improper?
A.
I am saying that one day might vary from
another day, depending on the number of cars
they are opening.
Q.
You are suggesting then that those figures
are invalid?
A.
No, I am saying that those figures were valid
for that day.
Q.
You only tested them one day?
up visit?
A.

On the follow-

The follow-up visit we did one full shift, sir.

Mr. Antel did not know how many days per month cars were
normally unloaded, nor how many hours employees were exposed
to the wrench noise, and therefore could not give a professional
estimate as to the magnitude of potential harm to the employees.
He agreed that a hypothetical wrench flap which obscured
the operator's view of the connection points, or which had to
be kicked into position, or an exhaust muffler which, because
of severe working conditions, led to the wrench being repaired
two or three times more than usual, would not be a feasible
device.
He also said that it was possible for the treated
wrench to be used in compliance with the noise standards
depending upon the amount of exposure received over varying
periods of time (Tr. 76-77).
In response to further questions, Mr. Antel explained
that because of the design of certain car doors, a bar was
used to manually open the doors, and that this procedure
produced no noise problem.
He further stated that he did
not know who owned or controlled the cars.
He understood that
the respondent's reluctance to ship a wrench to MSHA stemmed
from that fact that there were normally three wrenches
operating and two in the shop. Also, he had never heard of
a device such as the wrench being used anywhere else.
He
conceded that one could not guarantee that once modifications
were made on the wrench it would forever remain in compliance
(Tr. 81-83).

1698

Mr. Antel was of the opinion that a new wrench would cost
$4400 or $4500, and he estimated that wrench modifications either
through MSHA's recommendations or through the respondent's
own techniques, would result in a noise reduction of five dB's.
He confirmed that there was less noise during the opening
of the locomotive car doors than there was during closing
because the materials in the car tended to dampen the noise.
He conceded that he did not know the labor costs incurred in
maintaining the wrenches in their improved form (Tr. 95).
He also explained that the two to three day installation time
referred to in the answers to interrogatories included five
or six hours of "curing time" needed for the molten urethane
material to dry (Tr. 98). He confirmed that no recommendations
have ever been made to do anything with the locomotive cars
in terms of noise controls, and he conceded that if part of
the noise problems came from the cars someone would need to
address that problem, but that the respondent does not own
the cars (Tr. 101-102). He conceded that the noise from the
cars doors was a contributing factor (Tr. 102).
Respondent's testimony and evidence
Donald R. Erickson, plant maintenance supervisor, testified
that he has tested the wrench in question and supervised the
installation of various noise suppression devices on the wrench.
These "treatments" consisted of a steel plate which was added.
to the frame of the machine extending to the toe plate, a
box fitted over the wrench bit cover, and a hose muffler
adapted to the exhaust port.
Because of the differences
between the wrenches used at the plant, any modifications
would have to be specially fabricated to fit each individual
machine. He confirmed that the respondent did not modify
all of the five wrenches used at the plant, and he estimated
that it took 32 man hours to treat one wrench.
He also estimated
the cost of materials and labor for one wrench to be
approximately $750. He also stated that increased maintenance
costs would result after each wrench was modified because
such modifications would result in the wrench being required
to be serviced two or three times more than normal because
of the modifications. Specifically, he cited the hose adapter
for the exhaust muffler on the modified wrench, and he estimated
that it would have to be replaced nine times a year at a cost
of $50 for each replacement installation. He also stated
that the rear housing on each of the wrenches would have to
be replaced three times a year at a cost of $650 each time
it was replaced on a single wrench. He concluded that the total
costs in labor and materials for the five modified wrenches
would approximate $19,500 a year (Tr. 105-119).
On cross examination, Mr. Erickson confirmed that only
one wrench had actually been modified, and that he supervised

the work, but did not know who had made the actual modification
design or recommendation (Tr. 120). He conceded that with the
exception of the wrench muffler, the material used to modify
the one wrench was available in the plant shop or was borrowed
from another job. He also confirmed that routine maintenance
work on the.wrenches was performed by a contract maintenance
vendor. He also confirmed that the labor and maintenance
costs which he testified to concerning the one wrench which
was modified was based on his experience with the wrench which
was modified for test purposes, but he could not state how
long the testing period lasted (Tr. 130).
In response to further questions, Mr. Erickson stated
that the modified wrench was tested on four different operational
occasions, and that during these tests the wrench operators
expressed a desire to have the bit cover shroud and the bottom
deflector removed from the wrench because it got in their way
while they were operatint it. Conceding that he had no
knowledge of the actual test results, he did confirm that
the employees who operated the wrench expressed a preference
to use the wrench in its original untreated form (Tr. 135-138).
Mr. Erickson stated that the wrench supplier was asked
to inquire of the manufacturer as to whether or not muffler
or other noise controls could be installed on the machine,
but that the response was negative (Tr. 142). He speculated
that if one wrench were shipped to MSHA for prolonged testing,
this would affect production because the initial dumping
process by use of the wrenches was a critical part of the
plant's production process. This was particularly true when
one or more of the wrenches are down for maintenance (Tr. 152).
He confirmed that the wrenches were sent to the maintenance
vendor at least once a month for routine maintenance and would
remain there for a week to a month. All of the wrenches in
use at the plant are approximately two to four years old.
Although Mr. Erickson could not state a routine maintenance
estimate for an untreated wrench, he did indicate that the
vendor's bills rarely were for less than $175 to $200 for each
trip to the shop (Tr. 154). He agreed that each new wrench
probably cost in the area of $4500 each (Tr. 156). He confirmed
that he was not present when the treated wrench was tested at
the work site, and had no knowledge of any of the test procedures
(Tr. 157).
Eugene I. Rowell, respondent's safety supervisor, testified
as to his background and eight to nine years' experience in
industrial safety and hygiene, including conducting noise
surveys and using sound level meters and dosimeters (Tr. 159-161).
He stated that shipments of rock to Port Sutton came in so

1698

erratically that he was unable to guess at how many days
per month unloading took place. However, he did estimate
that an average of 18 to 20 cars per day were unloaded during
the first shifts, and the cars were of varying size and design.
Some could only be opened manually with a bar, and others had
lower hoppers.
In a full day, the workers might spend four
to six hours unloading fifty to sixty cars. Only when the cars
doors were being opened were the pneumatic wrenches utilized
(TR. 164).
Mr. Rowell stated that the lead flagman had radio contact
with the train engineer and was responsible for the recovery
of cars which needed to be dumped, storing them after unloading,
and opening the car doors on his side of the track.
If time
allowed, crew members were often assigned to other duties
until a new shipment arrived. At times, three days passed
without a single car being unloaded, and he added that he had
never seen the shaker used in the rock unloading during his
three years at the plant (Tr. 166).
Mr. Rowell described the employees' hearing conservation
program at the Port Sutton facility. All workers involved
in the unloading process were required to wear hearing
protection, and they received some training in noise hazards
as part of a mandatory MSHA course. Mr.·Rowell approximated
the weight of one pneumatic wrench to be 130 pounds. However,
any sound treatment equipment would add 20 to 30 pounds extra
weight to each wrench (Tr. 169). He further indicated that
this additional weight would enhance the likelihood of back
injury among the operators, and that the modifications would
also obscure a worker's view of the wrench bit when he tried
to insert it into the car door. An employee's attempt to
operate the wrench without a secure connection could lead
to the bit flying off and injuring someone (Tr. 170).
Mr. Rowell recalled that, in response to the MSHA
citations, plant management conducted noise tests on four or
five occasions, and he briefly described some of the testing.
He reiterated the potential hazards which would result from
decreased visibility on a treated wrench due to the flap
covering the coupling. With regard to administrative controls
for noise reduction, he stated that the existing union contract
would frustrate any plan for personnel rotation, and that it
would cost more money to add a part-time crew. The company
does not own the railroad cars, and therefore it lacked the
ability to modify their design. Mr. Rowell also discussed
the dangers of using the car bar as an alternative to the
pneumatic wrench, and indicated that one reason for the adoption
of the wrench was to avoid the frequency of bar related
accidents (Tr. 182-187).
Mr. Rowell estimated that the ear plugs supplied to the
employees reduced the sound level 188 by 15 or 20 dBA.
The
annual cost for plugs would be about $20 or $30, while ear
muffs sold for fourteen or fifteen dollars a pair. When
asked if the company had consulted the manufacturers on the

1698

subject of noise control, he replied that the manufacturer
had actually requested the company to pass along its findings
as they did not have any answers. Mr. Rowell also confirmed
that he was unaware of any feasible engineering or administrative
solutions for ameliorating the noise problem (Tr. 188).
On cross examination, Mr. Rowell denied that either he
or his supervisor had been aware of the noise problem in
the unloading area, and he could recall no noise surveys
being conducted prior to the MSHA inspection. The employees
were instructed in their training classes that whenever they
felt a need for hearing protection or sound tests in their
work area, they were to notify their supervisor or the safety
department, who would then supply the protection and conduct
the tests. Although he did not know of any other sections
with noise problems, he stated that there were some workers who
did choose to wear hearing protection (Tr. 189-190).
With regard to the company noise surveys, (exhibits R-8 and
R-9), Mr. Rowell confirmed that he used a Quest Type 2 sound
level meter, but that no dosimeters were used. He confirmed
that he was not familiar with the error factor on the particular
sound level meter used. He also confirmed that he accompanied
Mr. Antel on both surveys, and in the 1982 testing took
samples at the same time as the MSHA p~rsonnel. He agreed
that there was about a five dBA reduction on the treated
wrench, but was not sure if that was reflected in the company
survey report, exhibit R-8. Nor was he sure how that figure
was arrived at, and he admitted not knowing exactly how much
weight would be added to the wrench because of the noise controls.
He conceded that not all of the controls installed on the
wrench corresponded to those suggested by MSHA. Mr. Rowell
confirmed that he took the readings for the May 26, 1982, survey
which was incorporated as respondent's exhibit no. 9, but he
was unable to explain why Car. No. 5 emitted less noise with
an untreated wrench then with a treated one (Tr. 193-203).
In response to further questions, Mr. Rowell stated that
the company had at one time considered purchasing a hydraulic
torque wrench to keep the work environment quieter, but did
not do so because of certain safety factors.
He agreed
that the claimed 20 dBA noise reduction through the use of
ear plugs was simply the manufacturer's claim, and that this
reduction may not be accurate at the actual work locations
(Tr. 212-217) .
Richard Gullickson, Industrial Hygienist, testified that
he has been in the respondent's employ for almost 15 years, 12
of which were as a professionally certified industrial hygienist.

1'700

He testified as to his professional background, and confirmed
that he held a college B.S. Degree in chemistry and that
he had participated in noise surveys and testing (Tr. 235-240).
He was aware of the events surrounding the issuance of the
citations in question and confirmed that he was familiar
with the design, operation, and uses made of the cited pneumatic
wrenches, including the modifications which were made during
the past two years. Although he personally did not test the
treated and untreated wrenches, he was familiar with the tests
and the results, and in most cases the testing was done under
his direction (Tr. 240).
Mr. Gullickson disagreed with MSHA Inspector McLaughlin's
position that the pneumatic wrench was the primary noise source
in the unloading facility.
He did not believe that his
measurements revealed the degree of noise reduction on the
treated wrench as indicated by the MSHA inspector. Although
he lacked supportive data, he advanced the notion that the
longer a wrench was used, the quieter it became due to wear
and refurbishing and he believed that this was why the wrenches
seemed quieter after they were treated. Also, he claimed
that MSHA tested different wrenches without determining what
their individual noise levels were with the same treatment.
Because of a possible ten decibel, or ten-fold, difference
between various cars, he focused his experiments on only two
cars.
In some cases the treated wrench was higher in noise
intensity than the untreated wrench, but he did not regard
it as noisier, and thought that the contrast reflected two
different wrenches with different intensities (Tr. 242-245).
With regard to MSHA's testing in May 1982, Mr. Gullickson
expressed no quarrel with the scientific validity of MSHA's
testing methods. However, he did express concern over the
fact that the noise level measurements were made on two different
untreated wrenches which were not of the same noise levels.
As an example, he cited the April 1981, test results where
the lead flagman averaged 90.2 decibles and the flagman averaged
95.4, both from untreated wrenches. He believed that it was
critical to test the same wrench on the same car because the
cars had up to ten decibel differences in their noise, which
translated to a ten-fold difference in noise energy (Tr. 249).
Mr. Gullickson rejected MSHA's contention that scientifically
valid conclusions could be drawn from an experiment in which
a number of wrenches were tested with a certain number of cars
and then simply averaged out.
He also doubted the validity
of MSHA's reading of 453% with the noise dosimeter in May 1982,
because measurements taken on other occasions indicated that
the noise exposure index of the untreated wrenches should be
higher than 200% (Tr. 251-252). With regard to the four decibel
variati~n detected between the treated versus the untreated wrench,

1701

Mr. Gullickson pointed out differences in noise. intensity
ranging as high as ten-fold, which he attributed to disparate
car designs.
He believed that, with a small enough sample,
it was conceivable that differences between rail cars would
override the four dBA disparity. He regarded the vibration
of the rail cars as the only significant source of noise, and
therefore, wrench modification would be ineffective to reduce
noise.
In his opinion, noise reduction down to the 90 dBA
time-weighted average was not feasible using MSHA's recommendations or through any other engineering innovation. Even if
all the wrenches were treated, he believed that employees
would still need to wear hearing protection (Tr. 260-261).
On cross examination, Mr. Gullickson reiterated that
if properly fitted and worn, personal ear protection would
reduce excessive noise exposure (Tr. 265). He confirmed that
ear plugs and muffs are available at the plant, and he generally
discussed the noise survey studies conducted at the plant,
the results of which are recorded in the reports, exhibits
R-8 and R-9 (Tr. 269).
In response to a hypothetical, he
stated
that if there were two equivalent noise sources and
one was reduced by 12 dBA, the overall noise exposure would
be diminished by 3 decibels, or fifty percent (Tr. 272). Even
if a totally silent wrench could theoretically be designed, he
believed the noise problem would not be significantly affected
due to the fact that the car doors were the major source of
noise (Tr. 273). He also stated that the noise exposure
would be less if a car bar was used because its impact would
be less than that of a wrench, but he conceded that the
pneumatic wrenches did contribute to the noise level. He
further testified that the 114 decibel locomotive whistle would
have to sound for 15 minutes a day to be out of compliance,
as opposed to an isolated ten second blast (Tr. 274-277).
Procedural ruling
As part of his post-hearing brief, petitioner's counsel
included as an "Exhibit A" certain tabular compilations
purportedly reporting the results of certain noise test data
not previously made a part of the evidentiary hearing record.
By letter filed September 9, 1983, respondent's counsel objected
to the document and moved that it not be considered by me as part
of my decision in this case. Subsequently, by letter filed
September 23, 1983, in response to the respondent's objections,
petitioner's counsel withdrew the exhibit and requested
that it not be considered in my decision in this case. Under
the circumstances, petitioner's request to withdraw the
document IS GRANTED, and I have not considered it in the course
of this de~ision.

1702

Findings and Conclusions
Respondent's Port Sutton facility unloads phosphate rock
from its various mine sites for processing, storage, or shipment to customers, and the facility employs approximately 83
employees.
The phosphate rock is unloaded from railroad
hopper cars at the "dumping shed", an open-ended metal fabricated
building approximately 100 feet long by 40 feet wide with
a railroad track running through the center. The railroad
cars are pulled through the building by a locomotive. After
each car is placed at the unloading point, the material is
unloaded from the bottom of the car and it drops through a
grate in the floor under the cars to a belt conveyor system
underneath the grate for transportation to the main plant
for drying and storage.
The crew involved in the dumping or unloading process
consists of three employees. The locomotive engineer is
responsible for operating the locomotive to pull the railroad
hopper cars into position over the dumping grates. The lead
flagman assists in positioning the railroad cars over the
grates, through radio communications with the engineer, and
opens the hopper car doors on one side of the dumping shed.
The flagman opens the railroad hopper car doors on the opposite
side of the dumping shed. The flagman opens the railroad
hopper car ,doors on the opposite side of the dumping shed
opposite from the lead flagman.
There are three crews
available forworking three shifts, seven days a week. The
number of cars dumped on any given shift vary. On the day
of the inspection, the inspector stated approximately 50
cars were dumped on one shift, and respondent's witnesses
estimated that on a yearly average approximately 18 to 20
cars per shift are dumped.
The lead flagman and flagman use pneumatic impact
wrenches to open and close the hopper car doors having rack-andpinion mechanisms. A square "bit" on the end of a pneumatic
w~e~ch is engag~d with the socket on the hopper car door
pinion and the impact wrench is activated, causing the bit
and pinion assembly to rotate and move the hopper car door
which is attached to the rack. The doors can be opened
or closed by adjusting the pneumatic wrench to rotate the
bit and pinion assembly either clockwise or counter-clockwise~
On some cars, a bar has to be used because the doors are not
adapted for the pneumatic wrench.
The dumping shed must normo.lly have three pneumatic
wrenches in operating condition at all times. One wrench
is located at the lead flagman's work station on one side
of the shed and tracks; that wrench can be moved along the

1703

railroad tracks the entire length of the dumping shed. Two
wrenches are necessary on the opposite flagman's side of
the shed, because a concrete partition perpendicular
to the railroad track prohibits movement of a single wrench
along the entire length of the dumping shed. Any of the
wrenches can open any railroad car's rack-and-pinion mechanisms.
Each of the pneumatic wrenches is approximately four
feet h~gh, two feet wide, and four feet long (including the
bit). The pneumatic impact motor, contained in a cylindrical
housing approximately two feet in length, is mounted between
two rubber-tired wheels that give the wrenches their mobility.
A bit-directional control rod (allowing the operator to select
clockwise or counter-clockwise rotation of the bit) extends
directly upward from the top of the pneumatic motor housing.
The power control for the pneumatic wrench is located on
the right handlebar assembly. The wrenches have approximately
four inches ground clearance. Each wrench weighs approximately
130 pounds and is connected by a long hose to an air compressor
which is located outside the dumping shed. The bit ·of the
pneumatic wrench rotates at approximately 1500 rpm when
unconnected to a railroad car: under "load" conditions, that
is, when connected to a railroad car door pinion socket, the
wrench bit rotates at approximately 10 rpm.
The wrenches do
not have noise-suppression devices supplied by the manufacturer.
(Photographs of the wrench are included as part of the record) .
Inspector McLaughlin visited the Port Sutton facility
on November 25 and 26, 1980. The first day was devoted to
a general scheduled inspection, and after determining that
the unloading area may have a noise problem, Mr. McLaughlin
returned to the facility the next day and conducted a complete
noise survey using dosimeters and a sound level meter.
(A
dosimeter measures accumulated exposure to noise over a
measured period of time, while a sound level meter measures
noise at any instant in time). Mr. McLaughlin calibrated
the dosimeters, and properly placed them on the lead flagman
and flagman who were working in the unloading shed area.
The dosimeters were used to measure the noise exposure
of the two employees for a full working shift, and during
the course of the shift Mr. McLaughlin returned to the shed
area four times to take noise level readings with the sound
level meter during the opening and closing of the car doors.
The two employees sampled by dosimeter by Mr. McLaughlin
on November 26, were found to be exposed to 95 dBA, which is
equivalent to 201% and 203% of the allowable regulatory maximum
noise exposure, or 2.01 and 2.03 times the allowable noise
exposure. Mandatory standard section 55.5-50 limits employee
exposure to less than 90 dBA for an eight hour duration, and

for employees exposed to 95 dBA, the standard limits the
duration of exposure to four hours. At the time of the
inspection, the employees were not wearing any hearing
protection and Mr. McLaughlin observed no noise controls on
the pneumatic wrenches operated by the sampled employees.
As a result of the November 26, noise sampling at the
unloading area, Mr. McLaughlin issued two section 104(a)
citations citing the respondent with violations of section
55.5-50(b), and as noted earlier in this decision the abatement
times were extended several tines and the citations finally
terminated on September 1, 1981.
The respondent concedes that the two cited employees
were not wearing personal hearing protection when the citations
were issued, and that on that particular day, the cited employees
working at the dumping operation were exposed to noise in
excess of the regulatory maximum. Respondent also admits
that it is appropriate for me to find it liable for civil
penalties for the two violations, and that it cannot contest
the citations nor a proposed penalty assessment insofar as
petitioner seeks sanctions only for failure to wear personal
hearing protection on November 26, 1980.
On the question of whether feasible engineering or
administrative controls exist for the abatement of the noise
levels described in the citations, respondent takes the
position that neither the noise controls that it has implemented
or those recommended by the petitioner are "feasible" as
that term has been statutorily and judicially defined.
Respondent maintains that none of the controls (whether
implemented or merely recommended) have been proved effective
in reducing the total noise of the unloading operation,
have been shown to be econo~ically feasible, or have survived
a cost-benefit analysis.
The dispute in this case arises on the question as to
whether the petitioner has established that feasible engineering
controls are available to bring the respondent within compliance,
and whether or not the respondent has implemented these controls
in good faith so as to come within the requirements of the
standard. Respondent takes the position that it has acted
in good faith, and that it has made an attempt to implement
MSHA's recommendations, as well as its own, but that they
are not feasible to achieve compliance. On the other hand
petitioner takes the position that even though its recomme~dations,
as w~l~ ~s ~he actions taken by the respondent acting on its
own in1~1at1ve, do no~ achieve total compliance with the·
standara, respondent is nonetheless obligated to implement them.

1705

Citing Judge Morris' decision in MSHA v. N.A. Degerstrom,
5 FMSHRC 637, April 5, 1983, petitioner submits that in order
to establish a violation of section 55.5-50, it must show
that (1) the respondent's employees are exposed to noise levels
in excess of those permitted by the standard; (2) there are,
in general, technologically feasible engineering or administrative
controls available which will reduce the noise; and (3) provide
a rough estimate as to the cost of implementing the controls.
Petitioner submits that it has made out a prima facie case.
Assuming that it can establish that the noise exposure
measured by the inspector exceeded the allowable limits,
petitioner asserts that the gravamen of the violations was
that the respondent failed to institute or to attempt to institute
any "feasible administrative or engineering controls to reduce
noise exposure in the unloading area". Other than requiring
employees to wear hearing protection, which was not done at
the time of the citations, petitioner asserts that the respondent
has still not instituted any controls to reduce the noise
exposure. Although conceding that the respondent had modified
one of its wrenches and conducted some tests, petitioner maintains
that the modifications were not adopted. Petitioner advances
the notion that since its studies have shown that some noise
reduction has been achieved, respondent is obligated to
implement them, even though they may not result in enough
noise abatement to bring the respondent within the requirements
of the cited standard.
At page 17 of its post-hearing brief, petitioner cites
Judge Morris' decision in MSHA v. N.A. Degerstrom, 5 FMSHRC 637,
April 5, 1983, in support of its argument that any feasibility
consideration of noise controls to reduce employee exposure
to excessive noise precludes the weighing of costs and benefits,
and that the phrase "feasible" should be construed to mean
"capable of being done" or "achievable" without regard to
whether or not any recommended controls will reduce the noise
to within the permissible limits. All that is required,
suggests petitioner, is that some significant reduction
is achieved, regardless of whether such reduction results in
total and full compliance with the requirements of section
55.5-50.
In support of its argument, petitioner states that
the consideration of whether the cost of a control is wholly
disproportionate to the benefits does not involve a cost-benefit
analysis or the kind of weighing of costs and benefits involved
in such an analysis. Petitioner suggests there is no need
to calculate and quantify all the conveivable costs and benefits
to determine where the balance lies.
Instead, it is only

1706

necessary to arrive at a general estimate of the cost and
to ascertain that some measurable benefits can be expected to
result.
In considering the benefits, it is not necessary
to prove that the results to be achieved by the control will,
in fact, promote the purposes of the regulation or statute;
the regulation or statute itself embodies that determination.
Petitioner asserts that the question is whether the control
can be expected to achieve any significant results and whether
the costs are so great that it would be irrational to require
the use of the control to achieve those results.
Aside from the fact that Judge Morris' decision in
N.A. Degerstrom is not binding on me, I take note of the fact
that he relied on several cases decided under the Occupational
Safety and Health Act, as well as the legislative history of
that statute in determining the meaning and application of
the phrase "feasible". He also noted that "the law on this
point continues in a state of flux".
In short, he relies
on an interpretation by OSHRC, as further refined by the Courts,
to support his findings and conclusions in N.A. Degerstrom.
This I decline to do.
Petitioner also relies on Judge Morris' decision in
Jet Asphalt and Rock Co., 3 FMSHRC 940, April 14, 1981, where
he construed section 55.5-50 as requiring the implementation
of feasible controls in the event of excessive exposure
regardless of whether such implementation would guarantee
reduction of the noise to within the permissible levels.
After review of Judge Morris' decision, my conclusion is
that he simply held that a companion mandatory standard
(56.5-50) requires an operator to explore the feasibility of
administrative or engineering noise controls before relying
on personal protective equipment, and that the mere use
of ear plugs is not an absolute defense.
I agree with
Judge Morris' conclusion that "what I'm trying to say is that
the first thing to be considered is administrative or engineering
controls", 4 FMSHRC 945. However, I reject petitioner's
attempts to.read anything else into his decision, and I reject
any notion that section 56.5-50 permits anything less than full
compliance with the clear language of the standard. The
second sentence of section 56.5-50, clearly permits the use
of personal protection equipment in the event feasible
administrative or engineering controls fail to reduce any
noise exposure to within permissible levels. The permissible
levels are those stated in the standard, and the standard
makes no allowances or provisions for so-called "improvements"
or "near" or "close to" compliance with the required noise
levels.
If the Secretary wishes to change or alter the standard
he is free to do so through proper rule making, but I reject
his attempts to do so in this proceeding.

170'/

With regard to any adverse economic impact on the
respondent, I cannot conclude that the cost factors discussed
on the record in this case would have any adverse impact on
the respondent. Assuming that the engineering noise suppression
methods advanced by both the respondent and MSHA are proved
workable, I seriously doubt that the respondent would suffer
economically. As a matter of fact, at page five of its
posthearing arguments, respondent states that "Although MSHA's
recommended noise controls are neither harmful nor costly,
neither are they especially effective". Thus, the question
presented is whether the engineering recommendations are
cost effective.
In other words, if it cannot be established
through credible evidence that the implementation of the
engineering methods explored in this case are feasible and
realistically achievable, then respondent need not go through
needless expenditures to implement them. On the facts of
this case, I believe the critical question presented is whether
respondent has explored all available feasible engineering
and administrative noise controls to bring it into compliance
with the requirements of the cited standard. As part of that
determination, I cannot conclude that the estimated costs
of "treating" each of the five wrenches which respondent has
available at any given time is all that critical. What is
critical is whether the "treated" wrench will do the job.
Petitioner suggests that it has established that the results
of the "treated" wrench tests clearly establish a reduction
in noise exposure and that respondent should not be allowed
to abandon this partial solution to the problem simply because
it does not believe that total abatement can be achieved.
The thrust of the petitioner's case is the assertion
that the May 1982, tests conducted by Mr. Antel (exhibit P-9),
conclusively demonstrates an average noise reduction with
the treated wrench of 4.5 dBA in closing and 5.1 dBA in opening
the railroad car doors. Petitioner relies on Mr. Antel's
testimony that this average reduction in the noise level
was shown from tests on 10 to 15 railroad cars (Tr. 72),
and that dosimeter readings he took for the employee's full
shift showed a reduction of 6 dBA when using the treated
wrench (Tr. 64). However, a closer examination of Mr. Antel's
testimony reflects that some 50 cars passed through the
unloading area at the time of the testing, that they varied
in size and construction, that the treated and untreated
wrenches were never tested on the same car doors, that
measurements were only taken from 10 to 15 cars, and that
the wrenches were not compared, one to the other on the same
railroad car.
In short, Mr. Antel conceded that his testing
procedures would not attract any individual variations between
the wrenches (Tr. 71-72). Further, when asked to explain and

1708

reconcile Mr. McLaughlin's full shift test results showing
noise exposure of 201% and 203% above the permitted limits
for the untreated wrench, and his test results of 453%
above the permitted limits for an untreated wrench, Mr. Antel
replied as follows (Tr. 73-74):

Q. In your July 12, 1982 report, Petitioner's
Exhibit 9, you found under similar situation
that the untreated wrench generated noise 453%
of the permissible dosage; is that not correct?
A.

Yes.

Q. Under similar circumstances, MSHA employees
obtained readings of 201, 203 and 453%. That
appears to be a rather large discrepancy. Can
you account for that?
A. I believe that can be accounted for due to
the variables, not only in the types of cars,
but also in the number of cars that, in which
the wrench is used.
If I could refer back to my first visit, we
witnessed about fifty cars, fifty-two cars that
were being unloaded that day, but only on about
half of these the wrench was used. And the other
half, they were used, the bar was used to open
it. So certainly that would influence the exposures,
the number of times the wrench was used.

Q. Then you are suggesting that to compare those
two numbers is improper?
A.
I am saying that one day might vary from another
day, depending on the number of cars they ~re
opening.

Q. You are suggesting then that those figures are
invalid?
A. No, ~ am saying that those figures were valid
for that day.

Q. You only tested them one day?
visit?
A.

On the follow-up

The follow-up ~isit we did one full shift, sir.

1709

Q. Could you tell me the, the activities of the
employees working in the dry rock unloading area
in the shed that we have been discussing?
A. My observation, I noticed the operators,
besides unloading the cars with the pneumatic
wrenches, between strings of cars they would go
down into the rail yard -- and I am not sure what
they were doing there -- but they would come up
with another string of cars.

Q. Do you know how many days per month railroad
cars are normally unloaded there at Port Sutton
in the shed?
A.

How many days per month?

Q.

Yes.

A.

No, I don't.

Q.
Do you know how many hours per month the
employees in the dry rock unloading area are exposed
to that wrench noise?
A.

No.

Q. Doesn't the potential harm from any loud
noise source depend on the duration of employee
exposure to that noise source?
A.

Yeah, I guess that would be true.

Q. Since you don't know the activities of the
employees in that area, either on a daily or a
monthly basis, you cannot accurately testify as
to any potential harm they may suffer as a result
of their exposure to the wrench noise, can you?
A.
I can only testify to the findings that I
observed that day.

Q. But you can't give any professional estimate
as to the magnitude of potential harm to the employees,
can yqu?
A.

No, I can't.

1710

One major flaw in the petitioner's case is that its
enforcement efforts are concentrated on the pneumatic wrench
used to open and close the locomotive cars. In its post-hearing
brief, petitioner maintains that both Inspector McLaughlin
and Mr. Antel were of the opinion that the wrench was the primary
source of the noise. However, as correctly pointed out by
the respondent in its post-hearing arguments, the excessive
noise levels which prompted the issuance of the citations
emanate from the total dumoing operation at the shed, and
unless this total environment is considered, concentrating
on one particular piece of equipment, which may or may not
be significant, would be fruitless.
While it is true that Inspector McLaughlin testified
that he considered the primary source of noise exposure as
"the noise being generated by the pneumatic wrench while it
was engaged with the car fitting" (Tr. 22), he conceded
that he performed no noise measurements to differentiate
and quantify the noise produced by the wrench from noises
produced by the railroad car, and he explained as follows
(Tr. 23-24):

Q. Mr. McLaughlin, you just testified that
the primary noise source during the unloading
operation was the pneumatic wrench. But isn't
it true that you never performed tests to quantify
the various noise sources?
A.

Explain that.

What do you mean quantify?

Q. You never performed any tests when you were
there on that day to differentiate various noise
sources in the dry rock and loading area, did you?
A. Well, I did use a sound level meter while the
equipment was operating, and I guess that would
be a quantified measurement, would it not?
Q.
But you never performed a test to distinguish
the noise generated by the wrench from the noise
generated by the railroad car or by the fans or
employees dropping lunchboxes in the shed itself,
did you?
A.

Well, I wouldn't be interested in that.

Q. Isn't it true that you cannot perform such
a test using the equipment that you had there on
that day?
A.

Yes.

1711

And, at Tr. 28-29:
Q.
Now, Mr. deMeza asked you a question
about whether or not you actually tested all
of the available noise sources there. Do
I take it that the noise levels that you found
to be out of compliance would be what? A
composite or a totality of all the noise that
these two fellows were engaged -- were exposed
to during the course of a given shift?
A. Yeah, as a, as the inspector -- I am not
really concerned that much which piece of
equipment is making the noise, because you, in
this particular case, you have got a wrench making
noise, you have got steel rattling on the cars,
you have got all kinds of noise. What I am
interested in is what the man is being exposed to.
And so it is, it is the total noise in the area.
Q.
So I take it if you tested all of the available
noise sources and you found that one in particular
was the culprit, if I can use that word, in other
words, if you were ~o take that particular piece
of equipment out of the workers' environment and
theoretically if that would bring them into
compliance, that they would know what the particular
noise source would be, wouldn't they?
A. Yes.
If they were not using a pneumatic
wrench there wouldn't be, you know, hardly any noise.

Q. Do you feel that that was the principle noise
source there that was causing the problem?
A.

Uh-huh.

Q.

That was causing the problem?

A.
It was the pneumatic wrench opening the car
doors. You see, it is a combination. You have
two things. You have noise from the wrench and
you also have noise when it is engaged.
While it is true that Mr. Antel testified that based
on his April 1981, noise survey, it was his opinion that
the primary noise source "was the wrench and operating during
loading and unloading of the cars" (Tr. 51). He qualified
his statement by readily conceding the existence of dumping
operation noise sources other than the pneumatic wrenches,
and his testi~ony in this regard is as follows:

1712

Q.
(Mr. deMeza) Why does the noise level
increase when doors are being closed? The rail
car doors?
A. Because the cars are being emptied at
that time and the reverberation condition.
Q.

Reverberation condition?

A.

From the cars themeslves.

So, in closing [the hopper doors], that damping
of the rock is, is absent, but the walls are
pretty [sic] vibrating and shake in sympathy,
I suppose, to the wrench?
A.

*

Yes • (Tr • 9 4- 9 5) •

*

*

*

Q.
(The Court) Okay, now, with that flap device
over there what, what kind of noise would come
from that coupling and uncoupling?
A. It was a very loose fitting on some of these
cars from, I suppose, continual opening and closing,
whe.re the bit or this part of the wrench would
engage and sometimes it tended to rattle and jump
around (Tr. 99).

*

*

*

*

Q.
(Mr. DeMeza) Did you attempt to identify and
regulate those other noise sources?
A. There was no way that, that I was able to
do that, since the wrench was not operating,
certainly would not excite the car and there
was no other means of generating the noise from
the car, other than the wrench. (Tr. 69).
Q. And when he is opening the doors, that
particular wrench generates noises?
A.

Yes, sir.

Q.

At that point and at what other point?

.A.

Closing.

Opening and closing.

1713

Q. So, if, if part of the noise problem is
the, the doors clanging and that, I would
think that somebody would want to address
that, too, That would be a contributing factor,
wouldn't it?
A.

Yes.

(Tr. 99-102) .

Mr. Antel's April 1981, noise survey report (exhibit P-6),
contain certain conclusions which recognize noise sources
other than the wrench during the dumping operation, and these
are as follows:
increased noise levels when car doors are closed
due to the reverberant condition of the cars
after the material has been removed.
the car shaker.
locomotive tramming through the building, including
the whistle.
Mr. Antel's report also states that at times, two or three
cars may be emptying simultaneously, and that on occasion
it may be necessary to utilize a car shaker in emptying the
car. Although he did not consider the car shaker to be a major
noise source at the time of his survey, he conceded that in the event
the shaker operating time is increased it "should be regarded
as a potential problem and should be investigated". ~r. Antel
notes that the shaker operated two times during his survey,
and no data was collected from the locomotive cab.
In view of the foregoing, it would appear to me that
Mr. Antel's noise survey included factors which were not
present during the survey taken by Mr. McLaughlin to support
the citations. It would seem to me that if two or three cars
are being dumped simultaneously while one or more car shakers
is in operation, significant noise sources other than the wrenches
would be present. Yet, none of these variables are explained.
The parties go through great lengths to try and explain
their respective engineering methodology in support of their
respective positions in this case, but it occurs to me that
when one is dealing with such extremely complex matters
as the noise suppression standards in issue what may work
theoretically on paper may not work in the actual mine working
environment.
In his report of the May 1982, noise evaluations, Mr. Antel
again recogn~zes the fact that noises other than the wrench

1714

contribute to the overall employee exposures. He takes note
of the fact that there are differences in the noise levels when
the wrench is coupled and uncoupled from the locomotive car
doors. Although he notes that when the wrench is coupled
to the car, "another noise source is activated", he speculated
as to where these sources were located and concluded that
the exact location could not be determined at the time of
his survey.
He also took note of the fact that the noise
levels generated while opening the car doors are lower than
the levels generated while closing the car doors.
This
fact lends support to the respondent's claim that the cars
themselves contribute significantly to the overall noise
exposure.
Feasible Engineering Controls
Respondent concedes that it did not follow MSHA's precise
recommendations concerning the noise control measures described
in the 1981 Antel Report. However, respondent has established
that its tests included the use of a foam-lined metal shroud,
a rubber flap extending over the wrench bit, and an exhaust
muffler.
Therefore, as correctly pointed out by the respondent,
its attempted engineering controls were close to those
recommended by MSHA and presented no significant operational
differences, and Mr. Antel believed that one could expect
approximately the same results from the noise controls measures
implemented by the respondent as those recommended by MSHA
(Tr. 93).
Further, as pointed out by the respondent at
page 20 of its post-hearing brief, during the abatement
process MSHA never took issue with the respondent's testing
(Tr. 213). As previously noted, the compliance time for
both citations was extended for some ten months while both
the respondent and MSHA were attempting to come up with some
feasible engineering controls. The citations were then
terminated "pending development of additional means of noise
attenuation on this equipment which.may be required at a
later date".
In the meantime, MSHA permitted the use of
personal hearing protection, and when the inspector observed
that the employees were not wearing such devices the citations
followed.
With regard to the petitioner's assertion that respondent
failed to accept MSHA's offer to test one of the wrenches
in its laboratory, respondent explained that it could not
afford to relinquish a wrench because it was required to be
located at the loading site as a back-up in the event the
other wrenches were down for maintenance.
In the circumstances,
respondent's reluctance to send one of its wrenches to MSHA's
laboratory for testing seems reasonable. Aside from the fact
that laboratory testing is significantly different than

1715

operating such a wrench in the actual mine environment, I
cannot conclude that on the circumstances here presented
respondent's reluctance to take one of its wrenches out of
commission was unreasonable.
Respondent's maintenance supervisor Erickson confirmed
that one of the wrenches was "treated" with certain devices,
including a muffler, in order to test the noise reduction
(Exhibit R-3). He explained the modifications in great detail
(Tr. 107-11), and aside from the fact that the particular
modif>ications had to be "customized" to the particular
wrench, he encountered no particular difficulties in making
the modifications (Tr. 112). However, he did speculate on
certain operational and maintenance problems which he
believed would be encountered, and he estimated that the total
additional labor and materials to maintain five treated
wrenches would amount to $19,500 annually (Tr. 119).
Mr. Erickson alluded to certain complaints made by the· wrench
operator after it was modified (Tr. 135-136; 138), and while
he confirmed that testing was conducted before and after the
modifications, he had no knowledge of the test results or
whether the modifications resulted in any noise improvements
(Tr. 138). Mr. Erickson's concern over the increased costs
for the modified wrench stemmed from the fact that it would
impact on his particular budget (Tr. 142).
Mr. Antel's testimony that he had previously constructed
a wrap-around muffler for use on large pneumatic drills,
that the cost would be approximately $65, and that no significant
maintenance or employee problens would result is not persuasive.
To begin with, the wrench in question is not a drill. With
regard to Mr. Antel's assertion that he would expect a noise
reduction of 5 dBA in the unloading area if his "wrap around"
recommendations were followed, I take note of the fact that
based on the results of testing as advanced by the parties,
respondent would still not be in compliance. More importantly,
on the facts of this case, it seems clear to me that MSHA's
preoccupation with the wrench focuses only one part of the
overall noise problems which result from the total unloading
operation to which the two cited employees were exposed.
Safety supervisor Rowell indicated that the railroad
owns the cars, and while the respondent leases some of them,
it has no control over which cars appear at the unloading
facility (Tr. 183). He discounted the use of car bars to
open the car doors because the use of such bars has resulted
in numerous accidents (Tr. 184-187). Petitioner's counsel
agreed that the respondent has no control over the cars and
cannot readily modify them (Tr. 230).

1716

Mr. Rowell believed that the fully-treated wrench
presented serious safety problems due to the lack of visibility
during the insertion of the wrench chuck into the car due to the
presence of ~he flap (Tr. 182). He also confirmed that the
respondent considered purchasing a hydraulic torque-type
wrench, which is quieter, but decided not to after determining
that it was hazardous to the operator (Tr. 212). He also
indicated that an untreated wrench weighs approximately
130 pounds, and that the modifications added an additional
20 to 25 pounds (Tr. 168). He also testified that the addition
of the flap as shown on exhibit R-3 presented a visibility
problem which has resulted in a misplaced wrench bit flying
off and that this is hazardous to the wrench operator (Tr. 170172) •
Petitioner's suggestion at Tr. 231 that one cannot test
the noise levels with the wrench attached to the car so as
to determine the amount of noise given off by the car and
the amount of noise given off by the wrench is simply not
so. The record here establishes when respondent tested the
treated wrench with and without a chuck while not coupled
to the car, the sound level meter indicated noise in the
range of 88 to 92 dBA (exhibit R-8). The test results for
the treated wrench while opening and closing the car doors
reflected significant increases in the noise levels. As a
matter of fact, Mr. Antel's May 1982, tests indicated
the approximate same results for the treated uncoupled wrench
as well as for the treated wrench while coupled and used in
the opening and closing of the car doors.
Thus, I conclude
that these test results support the respondent's assertions
that the wrench in question is but one part of the noise problem.
Petitioner's counsel candidly admitted during the course
of the hearing in this case that the parties "came away from
those tests back in May of 1982 with a different interpretation
of the results" (Tr. 209). While it may be true that the
testing conducted by the parties reflect a reduction in the
noise levels as between the treated and treated wrenches,
it seems clear to me that in the actual mine working environment,
compliance will not be achieved until such time as the total
noise sources are addressed. Petitioner's counsel conceded
that even if MSHA were to independently test the wrench,
and its recommendations did not result in noise reduction,
it would consider that there are no feasible engineering
controls available, and the respondent would then be permitted
to continue providing personal ear protection to its employees.
This would be considered as compliance (Tr. 228-229). During
a bench colloquy, counsel elaborated further as follows
(Tr. 229-230):

111·1

JUDGE KOUTRAS: Once they operate under
this standard and made a reasonable effort
to comply with the feasible engineering
controls -- and that's always the guts of
the cases; right?
MR. WELSCH:

Yes, sir.

JUDGE KOUTRAS: There is always a difference
of opinion as to what is feasible and what
is not?
MR. WELSCH:

Yes, sir.

JUDGE KOUTRAS: But theoretically, assuming
that they did all that, that was necessary
and that MSHA agreed that they did all that was
really necessary to bring the noise level on this
particular wrench down into compliance, you
could isolate that from all the other noise and
find that they were in compliance.
And once they put that modified wrench back
into production, it could very well be that other
noise sources -- let's just take the empty cars -MR. WELSCH:

Yes, sir.

JUDGE KOUTRAS: That would put them back out of
compliance again? Theoretically, that could
happen?
MR. WELSCH:

Yes, sir.

JUDGE KOUTRAS: And then I suppose MSHA could
come back and say, "Okay, listen. We have
eliminated the wrench now. What we want you
to do now is take these cars that you are
producing and buy some rubber ones."
MR. WELSCH:

I, I don't think MSHA would --

JUDGE KOUTRAS:

Theoretically?

MR. WELSCH: Theoretically, yes, Your Honor.
In this case, though, it is my understanding
that these are the controls that MSHA recommends
and at this point in time this is probably all
the controls that we can recommend to abate this
noise.

1718

On the basis of the preponderance of the evidence adduced
in this case, I conclude that the petitioner has not established
that feasible engineering controls are available to reduce
the noise of the dumping operation in question to within the
allowable levels mandated by section 55.5-50(b). I conclude
further that the petitioner has failed to establish through any
credible evidence that its recommended wrench engineering
noise controls will reduce the dumping crew's noise exposure
so as to bring the respondent into compliance.
I reject the
petitioner's suggestion that while the engineering controls
tested by MSHA and the respondent may not reduce employee
exposure below the permissible limits, the respondent must
nonetheless implement them.
With respect to the question of economic feasibility,
based on the record here presented, I cannot conclude that
the estimated costs for the treated wrenches in question
would place the respondent in dire financial need.
Based
on its overall resources, I cannot conclude that the expenditures
testified to in this case are economically burdensome.
However, since there is no dispute over the fact that the
respondent was out of compliance and was in violation
because the cited employees were not wearing personal
hearing protection, and in view of my conclusions that the
petitioner has not prevailed on the question of feasible
engineering controls, the particular question of cost feasibility
is not a critical factor in this case.
I further find and conclude that the respondent here
acted in good faith in attempting to achieve engineering
compliance through the testing of certain noise control
measures similar to those suggested by MSHA, but that unless
the total operational noise environment at the dumping location
is addressed by both MSHA and the respondent, "piecemeal"
consideration of the wrench in question will not achieve compliance.
I also find that the respondent has established through
credible testimony that its own modifications to the wrench
presented safety problems to the operator which outweighed
any resultant noise reductions.
Feasible administrative controls
In this case, MSHA recommended the following administrative
controls:
1.

Having the lead flagman and flagman leave
the dumping shed when a trip of cars is being
moved through.

1719

2.

Eliminating any unnecessary use of the locomotive whistle while the locomitive is passing
through the shed.

3.

Keeping the lead flagman and flagman outside the
locomotive cab unless uncessary in the performance
of their duties.

Although respondent on the one hand states that MSHA's
administrative controls are not significant, it nonetheless
at page 37 of its post-hearing brief "does not disagree with
the wisdom of those recommendations". At page 31 of its
post-hearing brief, respondent concedes further that MSHA's
suggested administrative controls will, to some small degree,
be effective in reducing the dumping crew's noise exposure,
and that if MSHA's recommendations are followed the crew will
occasionally be exposed to significant noise levels.
In addition to those administrative controls suggested
by MSHA, the respondent states that one of the more common
administrative noise controls, rotation of employees among
various work stations of varying noise exposures to minimize
the total daily noise dose, was never recommended by MSHA.
Respondent assumes that MSHA accurately perceived that
respondent could not implement such measures at the Port Sutton
terminal because the facility's employees are solidly unionized
and dumping crew jobs are subject to the "bid" system. Respondent
states that any assignment of a less-senior employee to a
preferred position on the unloading crew would result in
union grievance proceedings or double payment of employees
(i.e., payment of both the senior employee who was "bumped"
by rotating off the dumping crew as well as the junior employee
who actually performed the work) (Tr. 166-167).
Respondent's safety supervisor Rowell testified that
since the citations were issued all employees working in the
unloading area are required to wear personal ear protection
as a condition of continued employment (Tr. 190). He also
confirmed that on any given day, employees in the unloading
area would spend from 4 to 6 hours per shift in that location,
and that during this time the wrenches are in operation only
when the car doors are opened (Tr. 164). He confirmed further
that the respondent supplies all employees with ear plugs,
that any employee working in the car unloading area is required
to wear them as a matter of company policy, and that the
annual training for all employees includes a portion devoted
to noise (Tr. 168, 187). Although Mr. Rowell alluded to
the possibility of bringing in additional part-time shifts
to relieve the regular unloading crews, he did not believe
this would be feasible due to the added costs (Tr. 183).
However, no further details or evidence was offered with respect
to this suggestion.

1720

At hearing, respondent's counsel conceded that section
55.5-50(b) requires the respondent to implement feasible
engineering or administrative controls to achieve compliance
(Tr. 222). When asked whether he believed MSHA's recommended
administrative controls to be unduly burdensome, counsel
replied as follows (Tr. 224):
JUDGE KOUTRAS: At any rate, I don't see
anything in these three paragraphs that
would, that would be an undue burden on the,
on the Respondent in this case to comply
with; wouldn't that be true? Do you agree
or disagree with that? Counselor?
MR. deMEZA:
It would seem so, Your Honor,
although I have not discussed it with the
client.
I cannot conclude from the record in this case that the
respondent has established that the recommended administrative
controls are not feasible.
By the same token, I cannot conclude
that the parties have established that such controls will,
or have had any significant impact in reducing the noise
expos~re.
Quite frankly, I believe that the parties have concentrated on engineering controls, and have not fully considered
the impact of any possible administrative solutions to the
problem. Under the circumstances, I believe that the respondent
has a continuing obligation to continue to explore feasible
administrative controls, including those suggested during
the hearing, in order to achieve full compliance with the
noise requirements.
The parties are reminded that while the result of my
decision in this case is to permit the respondent to use
personal ear protection, as correctly stated by the petitioner,
the use of such devices is not an absolute defense. My decision
in this case focused on the pneumatic wrench, and my· feasibility
findings are in connection with that particular piece of
equipment. Respondent may not sit idly by without making any
further attempts to address its noise problems at the dumping
location in question, and it has a positive duty to make
good faith future efforts at achieving total noise compliance
at the operation in question.
Fact of Violations
There is not dispute on the question of violation and
the record supports a conclusion that the respondent is in
violation of mandatory safety standard 30 CFR 55.5-50(b).
Accordingly, the citations ARE AFFIRMED.

1721

History of Prior Violations
The computer print-out submitted by the petitioner
(Ex. P-1) , reveals a moderate history of prior violations
by the respondent with no previous violations of the cited
standard herein, and I have considered this in the course
of my penalty assessments in this case.
Size of Business and Effect of Civil Penalties on the Resoondent's
Ability to Remain in Business.
I conclude that the respondent is a large mine operator,
and the parties agree that the payment of the proposed civil
penalties will not adversely affect its ability to remain
in business.
Negligence
Although respondent suggests that it was unaware of
any noise problems at its unloading operation, and relied
on its employees to bring such problems to its attention,
since it did conduct noise tests on certain other equipment,
I believe it had an obligation to insure that tests were made
at the unloading area as well, particularly when its own
safety supervisor (Rowell) candidly admitted that the unloading
area was the only real source of any potential excessive
noise.
In these circumstances, I conclude and find that the
violations resulted from the respondent's failure to exercise
reasonable care, and that this amounts to ordinary negligence.
Gravity
Although there is no evidence of any specific damage to
any employee as a result of excessive noise exposure, the
fact is that in this case the employees were not wearing
personal protective devices.
Since the respondent concedes
that it was out of compliance and that the two cited employees
were not wearing such protective devices, they were exposed
to noise above the regulatory limits. Accordingly, I conclude
that the conditions cited posed a potential source of harm
to the employees, and that the violations were serious.
Good Faith Compliance
I conclude that the respondent made a good faith effort
to achieve compliance after the cited conditions were brought
to its attention, and I have considered this in the penalties
assessed by me for the two violations in question.
·

1722

Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of Section llO(i)
of the Act, I conclude and find that the following civil
penalty assessments are appropriate for the citations which
have been affirmed:
Citation No.
094927
094928

Date
11/26/80
11/26/80

30 CFR Section

Assessment

55.5-50(b)
55.5-50(b)

$180
180
$360

ORDER
Respondent IS ORDERED to pay the civil penalties assessed
by me in the amounts shown above within thirty (30) days of
this decision and order, and upon receipt of payment by the
petitioner, this case is dismissed.

~.lt~
Administrative Law Judge

Distribution:
Ken S. Welsch, Esq., U.S. Department of Labor, Office of the
Solicitor, 1371 Peachtree St., NE, Rm. 339, Atlanta, GA 30309
(Certified Mail)
Howard E. Post, International Minerals & Chemical Corp., 2315
Sanders Rd., Northbrook, IL 60062 (Certified Mail)
William B. deMeza, Jr., Esq., Holland & Knight, 406-13th St.,
West, Bradenton, FL 33305 (Certified Mail)

/slk

1723

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

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

OCT4

JIB

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-3
A.C. No. 36-05018-03503

v.
Cumberland Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Matthew J. Rieder, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons; Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This proceeding involves a single citation issued June 16,
1982, alleging a violation of a safeguard notice issued August 12,
1980, requiring that all track haulage switches be provided with
reflector lights or some other means to show the direction of the
switch throw.
The subject citation charges a violation of 30 C.F.R.
§ 75.1403.
Respondent concedes that the violation occurred but
denies that it was significant and substantial and contests the
amount of the penalty. Pursuant to notice, the case was heard in
Uniontown, Pennsylvania, on June 21, 1983. Clarence D. Moats,
Robert W. Newhouse and Eugene w. Beck testified on behalf of
Petitioner; Don Laurie and Mark Skiles testified on behalf of
Respondent.
Both parties have filed posthearing briefs. Based on
the entire record, and considering the contentions of the parties,
I make the following decision.
FINDINGS OF FACT
1. Respondent is the owner and operator of an underground
coal mine in Greene County, Pennsylvania, known as the Cumberland
Mine.

2.
Respondent is a large operator and the subject mine is
a large mine.
3. The imposition of a penalty in this case will not affect
Respondent's ability to continue in business.
4.

Between August, 1980 and August, 1982, Respondent had
§ 75.1403 at the subject mine.
The
nature of these violations is not shown in the record. This
history of prior violations is not such that a penalty otherwise
appropriate should be increased because.of it.

SO violations of 30 C.F.R.

S. On August 12, 1980, a notice to Provide Safeguards was
issued under 30 C.F.R. § 75.1403 requiring that at the subject
mine all track haulage switches shall be provided with reflectors,
lights, or some other means to indicate the direction of the
switch throw.
6. The subject mine-utilizes battery operated haulage
equipment, including 5-ton and 10-ton locomotives (carrying men
or supplies), and smaller vehicles called jeeps or crickets. The
locomotives have a maximum speed of about 14 miles per hour.
7.
On June 16, 1982, a reflector or other suitable means
to indicate the alignment of the track haulage switch was not
provided at the switch at the number 9 crosscut 12 butt East
17 Face South section of the subject mine. Citation No. 1146098
was issued for a violation of the notice to provide safeguards.
8. The track in the area cited continues beyond the switch
for a distance of about 200 feet.
There is a battery charging
station about 140 feet from the switch.
9.

The violation cited was abated promptly and in good faith.

ISSUES
1. Was the violation of such nature as could significantly
and substantially contribute to the cause and effect of a mine
safety or health hazard?
2.

What is the appropriate penalty for the violation?

CONCLUSTONS OF LAW
1. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the subject
mine, and the undersigned administrative law judge has jurisdiction over the parties and subject matter of this proceeding.

1'125

2. The condition cited by the Federal Mine Inspector on
June 16, 1982, described in Finding of Fact No. 7 was a violation
of the safeguard notice issued August 12, 1980, and therefore, a
violation of 30 C.F.R. § 75.1403.
3. The violation found above was of such nature as could
significantly and substantially contribute to the cause and effect
of a mine safety or health hazard.
DISCUSSION
The hazard caused by the absence of a reflector on a switch
is that the operator of a haulage vehicle might mistake the position
of the switch, and by going in the "wrong" direction, jostle the
occupants in the vehicle or derail the vehicle. Because low-speed
haulage equipment was in use in the subject mine, the injuries
would not be nearly as serious as would be the case where high
speed haulage equipment was involved. This limits the weight to
be accorded Government's Exhibit No. 2, the Report of a Fatal Coal
Mine (Haulage) Accident, which involved high speed haulage. Nevertheless, a derailment could result in injuries of a reasonably
serious nature.
Respondent contends that its haulage operators rely on
observing the switches rather than the reflectors, that absent
reflectors were sometimes not cited by inspectors, that reflectors
were often removed by employees, and that the haulage equipment
travelled so slowly that an injury was improbable even if a vehicle
operator mistook the position of the switch.
With regard to the first contention, it is self-evident that
a reflector or light is visible for a greater distance than the
switch and its absence clearly could contribute to an accident.
The second and third contentions are irrelevant to this issue.
With respect to the last contention, I accept the judgment of the
government inspectors that a derailment even at low speed could
result in injuries to occupants of haulage cars.
4.

The violation was moderately serious.

5. The condition cited was known or should have been known
to Respondent.
It resulted from Respondent's negligence.
6. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for this violation is $100.
ORDER
Based on the above findings of fac~ and conclusions of law,
IT IS ORDERED

1

l 12G

1.
The. Citation No. 1146098 including its designation as
significant and substantial is AFFIRMED.

2.
Respondent shall within 30 days of the date of this order
pay the sum of $100 for the violation found herein to have occurred.

!

{;7/l/IM-5 4131~// ~
James A. Broderick
Administrative Law Judge

Distribution:
Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

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

OCT 4
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIST~TION (MSHA),
Petitioner

\ID

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-39
A.C. No. 36-05018-03505

v.
Cumberland Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Matthew J. Rieder, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATE~ENT

OF THE CASE

In the above proceeding the Secretary seeks civil penalties
for nine alleged violations of mandatory safety standards. Each
violation was cited as significant and substantial. However,
with respect to Citation No. 2011904, alleging a violation of
30 C.F.R. § 75.1722, the Secretary in open court deleted the
significant and substantial designation and proposed that the
violation be settled. With respect to Citation No. 2012075,
alleging a violation of 30 C.F.R. § 75.606, the Secretary in open
court deleted the significant and substantial designation. With
respect to Citation No. 2011908, alleging a violation of 30 C.F.R.
§ 75.903, the Secretary moved that the citation be vacated and no
penalty be imposed for the cited condition. Respondent admits
that the remaining violations occurred, but denies that they were
significant and substantial, and contests the penalties proposed.
Pursuant to notice, the case was heard in Uniontown, Pennsylvania
on June 21 and June 22, 1983. Robert w. Newhouse and Clarence D.
Moats testified on behalf of Petitioner; Robert Alan Bohach, Mark
Skiles, and Chuck Lemunyon testified on behalf of Respondent.
Each party was afforded the opportunity to file a posthearing
brief. Respondent filed such a brief. Based on the entire record
and considering the contentions of the parties, I make the following
decision.

1728

ISSUES
1. Whether the violations are of such nature as could
significantly and substantially contribute to the cause and effect
of a mine safety or health hazard?
2.

What is the appropriate penalty for each violation?

FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS
1. Respondent is the owner and operator of an underground
coal mine in Greene County, Pennsylvania, known as the Cumberland
Mine.
2.
Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the subject
mine and I have jurisdiction over the parties and subject matter
of this proceeding.
3. Respondent is a large operator and the subject mine is a
large mine.
4.
The assessment of civil penalties in this proceeding will
not affect Respondent's ability to continue in business.
5. Between August 1980 and August 1982, Respondent had a
history of 50 paid violations of 30 C.F.R. § 75.1403, 2 violations
of 30 C.F.R. § 75.601, 66 violations of 30 C.F.R. § 75.400, no
violations of 30 C.F.R. § 75.1106-4, 8 violations of 30 C.F.R.
§ 75.606, and 11 violations of 30 C.F.R. § 75.1722(a}.
This is a
moderate history of previous violations and penalties otherwise
appropriate should not be increased because of it.
6.
In the case of each citation involved herein, the violation was abated promptly and in good faith.
7. Whether a cited violation is properly designated as a
significant and substantial violation is per se irrelevant to a
determination of the appropriate penalty to beassessed. The
penalties hereinafter assessed are based on the criteria in
section llO(i} of the Act.
8. All of the contested violations were abated promptly and
in good faith.
9. The subject mine is a gassy mine and liberates over
one million cubic feet of methane in a 24-hour period. Methane
ignitions have occurred at the subject mine.

1728

CITATION NOS. 2012062, 2012064 AND 2012073
Each of the above citations charged a violation of 30 C.F.R.
75.1403 (ndtice to provide safeguards) because of inoperative
or empty sanding devices on haulage equipment in the subject
mine. On September 14, 1978, a notice was issued requiring that
each self propelled personnel carrier should be provided with well
maintained sanding devices. On April 30, 1980, a notice was
issued requiring that all track mounted self-propelled personnel
carriers and locomotives be equipped with properly installed and
well-maintained sanding devices, except that personnel carriers
(Jitneys) which transport not more than 5 persons need not be so
equipped.
§

Citation No. 2012062, issued August 4, 1982, charges that
on a mantrip, three sanqers were empty and one was plugged with
wet sand.
(There are four sanders on the mantrip - one for each
wheel). The mantrip had been used to transport the nine person
crew into the section prior to the citation being issued. The
rails were damp in some places, there was a slight grade in some
areas, and people were working on the haulage. At times the rails
may be wet.
The mantrip had a maximum speed of 12 to 14 miles
per hour.
It has a hand operated mechanical brake, and can also
be stopped by reversing the directional controller.
Citation No. 2012064, also issued on August 4, 1982, charges
that the sanders on another mantrip were inoperative. This
mantrip had been operated on wet track for about 400 feet because
of a broken water line. Seven miners were transported on this
mantrip.
Citation No. 2012073, issued on August 5, 1982, charges that
sanders in a seven person mantrip were empty. Although different
mantrips were involved, the section foreman in charge of the crew
being transported was the same section foreman involved in
Citation No. 2012062.
The purpose of requiring operating sanding devices on haulage
vehicles is to give better traction to facilitate stopping and to
round curves and climb grades at a safe speed. Although the
equipment is operated a low speed, a sudden stop may be necessary
for many reasons, e.g., persons or objects on the track, a switch
with a defective reflector signal. Wet tracks or ascending or
descending grades may require sand for proper traction. The
failure to have operative sanding equipment is likely to result in
injuries of a reasonably serious nature. The violations are
significant and substantial. The violations were serious and
resulted from Respondent's negligence. The violation charged in
Citation No. 2012073 was the result of aggravated negligence. Based
on the criteria in section llO(i) of the Act, I conclude that
appropriate penalties for the violations are $200, $200, and $300.

1730

CITATION NO. 2012065
This citation, issued August 4, 1982, charges a violation of
30 C.F.R. § 75.601 because the disconnecting devices for the
trailing cables on a shuttle car and a continuous miner were not
properly identified or tagged to correspond with the receptacles
at the load center. The mandatory standard, which is a statutory
provision, requires that "disconnecting devices used to disconnect
power from trailing cables shall be plainly marked and identified
and such devices shall be equipped or designed in such a manner
that it can be determined by visual observation that the power is
disconnected." The hazard resulting from the violation is that
someone could contact an energized cable thinking it was disconnected, or could inadvertently plug in the wrong cable. The plugs
for the continuous mine~ cable and the shuttle car cable are very
different in size and appearance, and could not be confused with
one another. However, there were other shuttle cars and the disconnecting device for the shuttle car cables could be confused if
one was not properly marked and identified. The load center at
the subject mine has a keying system which is a physical means to
prevent a plug from being inserted in the wrong receptacle. However, the keys are often taken off the cables, and it is not known
whether keys were present on the day the citation was issued.
Mechanics who work on cables are instructed to lock out the cable.
If a break occurs in a power lead, the power would be cut by the
ground continuity check. However, it is possible to have a bare
wire not cut, without interrupting the continuity.
The question whether this violation is significant and substantial is a close one, but considering the large number of cables
and power conductors in the mine, and the severe consequences
which might ensue (electrocution), I conclude that the violation
was significant and substantial.
It was a serious violation, and
should have been known to Respondent. Therefore, Respondent was
negligent. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for this violation is $250.
CITATION NO. 2012066
This citation, issued August 4, 1982, charges a violation of
30 C.F.R. § 75.400 because of an accumulation of dry coal, float
coal dust, oil and grease in the operator's compartment, behind
· the electric motors for the cutting head and around the electric
cables on a continuous mining machine. The machine was being
trammed into a working place in the No. 4 entry at the time the
citation was issued. The hazard created by this violation is that
these accumulations are combustible and could propagate a mine
fire.
The methane monitor and the water sprays on the miner were
working properly. However, the coal that was packed around the

1731

motors would prevent the water sprays from reaching the motors in
case of a fire.
The accumulation in the operator's compartment
was approximately 3 inches deep. The accumulation around the
motor was packed and not easily measured.
It would have taken
several shifts to accumulate. The area of .the mine in which the
citation was issued recorded a maximum of 0.2 percent methane on
the day in question. The continuous miner motor is water cooled
and has thermal strips designed to shut off the motor if it
overheats.
Accumulation of combustible materials in a coal mine is likely
to contribute to a mine fire or explosion in a mine that liberates
methane. The violation was significant and substantial. It was a
serious violation and resulted from Respondent's negligence.
I
conclude that an appropriate penalty for this violation is $300.
CITATION NO. 2012074
This citation, issued August 9, 1982, charges a violation of
30 C.F.R. § 75.1106-4 because two compressed gas cylinders were
standing along the shuttle car roadway without being secured from
falling.
The hazard created by this violation is that the valve could
be broken or the cylinders ruptured, releasing the compressed gas
causing the cylinders to become as missiles. The section was preparing to begin a new shift. Both cylinders were in bags. The
oxygen cylinder was capped and the acetylene cylinder had a recessed
valve. I conclude that the cylinders could have been knocked over
by a shuttle car, or other force, and could have been ruptured.
If
one or both were ruptured, serious injuries would likely occur. I
conclude that the violation was significant and substantial.
It was
a serious violation and was caused by Respondent's negligence since
it was evident to visual inspection. Based on the criteria in
section llO(i) of the Act, I conclude that an appropriate penalty
for this violation is $200.
CITATION NO. 2012075
This citation, issued August 9, 1982, charges a violation of
30 C.F.R. § 75.606 because the trailing cable for a construction
miner was not adequately protected to prevent damage by mobile
equipment.
There was evidence that the cable had been run over,
but there was no visual evidence of damage to the cable and a
continuity check showed no damage to the power conductors. The
cable was not energized. The cable had apparently fallen from
hangers along the rib.
Petitioner stated that the violation was not significant and
substantial.
I conclude that it was not serious.
It should have
been observed by Respondent, however, on a preshift examination.
Based on the criteria in section llO(i) of the Act, I conclude that
an appropriate penalty for this violation is $50.

1732

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED·

1. Citation Nos. 2012062, 2012064, 2012073, 2012065, 2012066,
2012074 are AFFIRMED as properly charging significant and substantial
violations.
2. Citation Nos. 2011904 and 2012075 charge violations not
pr9perly designated as significant and substantial.
3. Citation. No. 2011908 is Vl\CATED and the penalty petition
is dismissed with respect to it.
4. Respondent shall within 30 days of the date of this order
pay the following penalties for violations found herein to have
occurred:
Citation

Penalty

2011904
2012062
2012064
2012073
2012065
2012066
2012074
2012075

$

20
200
200
300
250
300
200

so

Total

J

$1,520

tlA tu'!~- ,/Vdi·-vcle-r2

c7/''l_

James A. Broderick
Administrative Law Judge

Distribution:
Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail}
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail}

/fb

1733

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

80204

OCT4

E

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 81-224
A.C. No. 42-00165-03051

v.
PRICE RIVER COAL COMPANY,
formerly BRAZTAH CORPORATION,
Respondent

...

Price River No. 3 Mine

DECISION
Appearances:

Phyllis K. Caldwell, Esq., Office of the Solicitor
U.S. Department of Labor, Denver, Colorado,
for Petitioner:
Stanley v. Litizzette, Esq., Price River Coal
Company,
formerly Braztah Corporation, Helper, Utah,
for Respondent.

Before:

Judge Vail
Procedural History

This case is before me upon petition for asse~sment of a civil
penalty by the Secretary of Labor pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·
(the "Act"). Respondent (formerly the Braztah Corporation, and now
the Price River Coal Company) is charged with violation of a
mandatory underground coal mine safety standard, for which a
citation was issued pursuant to section 104(a) of the Act.
In
conjunction with the citation, a withdrawal order for failure to
properly abate was issued pursuant to section 104(b) of the Act.
Respondent duly contested the proposed penalty for the alleged
violation of the safety standard. Upon notice to the parties, a
hearing on the merits was held in Salt Lake City, Utah. Both
parties filed post-hearing briefs.
Issues
The principal issues presented in this proceeding are: (1)
whether respondent was properly charged with a mine safety
violation, and if so, what civil penalty is appropriate based upon
the criteria set forth in section llO(i) of the Act: and (2) whether
respondent may now challenge a withdrawal order for respondent's
alleged failure to abate the violative condition. Additional issues
raised during the proceeding 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 fQllowing
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 of
the penalty on the operator's ability to continue in business, (5)
the gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
Stipulations
At the outset of the hearing, the parties stipulated to the
jurisdiction of the Mine safety and Health Review Commission to hear
this case, and to several facts relevant to the assessment of
penalties.
It was agreed that: (1) respondent produces 3,200 tons
of coal daily and employs 269 miners at the Price River No. 3 Mine;
(2) respondent would stipulate to the admissibility of a computer
printout (Exhibit P-7) to show the number of cited violations
occurring over a 24 month period ending on February 5, 1981, the day
that the citation involved in this proceeding was issued; and (3)
respondent's payment of a penalty would not impair its ability to
continue in business.
Findings of Fact
1)
Respondent owns and operates a coal mine known as the Price
River No. 3 Mine near Helper, Utah.
2)
On February 2, 1981, Fred Lupo, president of the Local 8303
of the United Mine Workers of America (UMWA) at the Price River No.
3 Mine, .attended a safety meeting at the mine, and afterward informed the mine superintendent of his concern with dirty mine belts.
Upon being informed by the mine superintendent that when the mine's
manpower was "built-up then they could spread out and do more jobs,"
Lupo advised the superintendent that he believed that the dirty
belts had existed for a long period of time and that he intended to
notify the Mine Safety and Health Administration (MSHA) and request
an inspection (Tr. 75, 76).

1735

3)
On February 2, 1981, Lupo sent a letter on behalf of the
UMWA to MSHA complaining of dirty belt lines in the mine, and
requeyting an inspection pursuant to section 103(g) of the
Act. /
The letter was received by MSHA on February 3, 1981
(Tr. 76, Exhibit P-8).
4)
Upon receipt of Lupo's letter, MSHA assigned Jerry Lemon to
inspect the mine's belt lines.
Lemon commenced his inspection on
February 5, 1981 and was accompanied by Lupo and Victor Stuart, the
mine's safety inspector.
5)
Upon arriving at the No. 1 belt at the mine's Castle Gate
portal on February 5, 1981, Lemon observed accumulations of both
loose coal and float coal dust in the area of the belt's second set
of air-lock doors, about 500 feet inby the mine portal. The coal
accumulations extended a distance of 20 feet and were six inches to
two feet in depth.
Black deposits of float coal dust had accumulated on the floor and ribs of the same area (Tr. 29, 30, Exhibit P-6).
Upon proceeding down the No. 1 belt to the area of the belt tailpiece, Lemon observed three belt drive rollers and the idler roller
running in loose coal accumulations which measured 13 to 32 inches
in depth and extended over a distance of 20 feet.
In addition,
black float coal dust accumulations were again evident and extended
approximately 120 feet from the tail piece in the direction of the
portal (Tr. 28, 31, 48, Exhibit P-6).

l l Section 103(g) provides in pertinent part as follows:
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.
Any such
notice shall be reduced to writing, signed by the representative of
the miners or by the miner, and a copy shall be provided the
operator or his agent no later than at the time of inspection,
except that the operator or his agent shall be notified forthwith if
the complaint indicates that an imminent danger exists. The name of
the person giving such notice and the names of individual miners referred to therein shall not appear in such copy or notification.
Upon receipt of such notification, a special inspection shall be
made as soon as possible to determine if such violation or danger
exists in accordance with the provisions of this title.
If the
Secretary determines that a violation or danger does not exist, he
shall notify the miner or representative of the miners in writing of
such determination.

173G

6)
Lemon issued citation No. 1021163 at 4:40 p.m. on February
5, 1981, charging violation of 30 C.F.R. § 75.400. The citation
listed the conditions in the area of the No. 1 belt described above
in Finding No. 5 (Exhibit P-6).
7)
After discussing the amount of time necessary for abatement
of the cited conditions with the mine safety inspector, Lemon allowed two hour and 40 minutes for completion of the abatement work (Tr •.
35, 80, Exhibit P-6).
8)
Upon returning to the site four and a half hours later,
Lemon determined that the abatement was incomplete.' No rock dusting
had been performed, and only 80 percent of the loose coal
-accumulations had been removed.
Lemon then issued withdrawal order
No. 1021164 pu2suant to section 104(b) of the Act (Tr. 60, 62,
Exhibit P-6). :_j
9)
Four miners, a mine foreman, and Lupo completed the
required abatement work within one hour, whereupon the withdrawal
order was terminated at 10:25 p.m. on February 5, 1981 (Tr. 38,
Exhibit P-6).
10)
On May 26, 1981, the Secretary filed a petition ·for the
assessment of a civil penalty against the respondent predicated upon
the issuance of citation No. 1021163 for a violation of 75.400 and
proposed a penalty of $470.00.
Respondent filed an answer on June
16, 1981, admitting the above citation was issued on the date
indicated but denying that a violation occurred.
Respondent had not

~/

section 104(b) of the Act provides 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 (a)
of this section 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) 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.

1737

filed a notice of contest to the withdrawal order No. 1021164 issued
on th3 day of the inspection, pursuant to section 105(d) of the
Act. _I
Discussion
Citation No. 1021163 charges respondent with violation of
safety standard 30 C.F.R. § 75.400, which provides as follows:
coal dust, including float coal dust deposited on
rock dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
Lemon's description (both in the citation and at the hearing) of
coal and float coal dust accumulations in the area of the mine's No.
1 belt was corroborated at the hearing by Fred Lupo.
Lemon testified that it was unlikely that the coal accumulations he observed occurred during only one shift, but instead had
been there for at least five days.
Lemon further stated that where
a belt and its rollers run in loose coal, frictional heat can
provide an ignition source and result in fire.
In turn, the fire
may set off an explosion where float coal dust has been allowed to
accumulate.
Both fire and mine explosions pose the threat of
serious or fatal injury to miners (Tr. 32, 34, 35).
In light of
such alleged safety hazards, petitioner seeks to have citation No.
1021163 affirmed, and a civil penalty imposed.
In contrast, respondent urges that a civil penalty be
disallowed.
However, while respondent generally denied petitioner's
allegation of a safety violation in its "Answer to Petition for

11

Section 105(d) of the Act provides in pertinent part 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 other 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 •••
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.

1738

Assessment of Civil Penalty," it failed to make any arguments at the
hearing or in its post-hearing brief rebutting the cited conditions
of coal and float coal accumulations. Witnesses Stuart and Robert
Lindsey (safety inspector and belt foreman respectively at the mine)
did testify that the accumulations were damp. However, I find the
credibility of such testimony to be weak since Lindsey also
testified that he could not directly controvert Lemon's testimony
that overall, the areas cited were dry (Tr. 114, 125).
In view of
such testimony, and upon careful review of the evidence, I find
that accumulations of coal and float coal dust existed in
respondent's mine and that such accumulations posed a hazard of a
fire and explosion occurring. Accordingly, I affirm the issuance of
citation No. 1021163.
Respondent further argued both at the hearing and in its post
trial brief that the abatement period set by Lemon to correct the
cited condition was unreasonable.
Respondent therefore reasons that
withdrawal order No. 1021164 was wrongfully issued, and that as a
consequence the proposed penalty at issue in this case should not be
assessed.
In making such arguments, respondent confuses the
function of this civil penalty proceeding with that involved in a
"contest of order" proceeding. Section 105(d) of the Act allows a
challenge of withdrawal orders, but only if the contest is filed
within 30 days of the receipt of the order. 30 u.s.c. § 815(d). see
Black Diamond Coal Mining Co, 5 FMSHRC 764 (April 1983)(ALJ) at
766-767.
Based on the facts in the present case, the withdrawal
order was issued and served on respondent by inspector Lemon on
February 5, 1981, and there is no evidence that respondent filed its
notice of contest challenging the order within the 30 day period as
provided in section 105(d).
Respondent's "contest" was initiated
when it was served with a copy of MSHA's proposed civil penalty for
the violation of standard 75.400 and informed MSHA on April 6, 1981
that it wished to contest citation No. 1021163 and the associated
proposed penalty.
Accordingly, I will not rule on the validity of
the withdrawal order in the instant civil penalty•case.
Instead, I
will decide only the affect of the withdrawal order on
considerations of good faith abatement when addressing the issue of
assessment of an appropriate penalty for respondent's violation of
safety standards 75.400.
Penalty
Mine History, Size, and Financial Status
The evidence in this case shows that respondent had a history
of approximately 114 violations at the Price River No. 3 Mine over a
two year period ending on February 5, 1981 (Exhibit P-7). Respondent stipulated that the mine employed 269 miners, produced 3,200
tons of coal daily, and that payment would not effect its ability to
continue in business (Tr. 5, 6).
I finn that the mine is of a
medium size and that the number of prior violations indicates a
moderate history of violations.

1739

Negligence
I accept Lupe's unrebutted testimony that he informed a mine
superintendent on February 2, 1981 of his concern with dirty mine
belts.
In view of such testimony, I conclude that respondent had
notice of a potentially hazardous condition and yet failed to
correct it.
Furthermore, the evidence shows the respondent had been
cited previously for violations of the same regulatory standard and
was aware of application of the standard to conditions in its mine
(Tr. 41).
I therefore find that respondent's failure to maintain
clean belt l~nes and correct hazardous conditions, although provided
with notice of their existence, amounts to gross negligence.
Gravity
I find that the action of the respondent in this case
constitutes a serious hazard.
The accumulations of coal under the
No. 1 belt, in combination with significant accumulations of float
coal dust, created a serious hazard of fire and explosion and
consequently the threat of serious or fatal injury to miners.
Good Faith
In addressing the issue of good faith abatement of a violative
condition, petitioner contends that respondent's lack of good faith
is demonstrated by the respondent's failure to timely abate the
cited safety violations.
The evidence of record establishes that
upon issuance of citation No. 1021163, Lemon allowed two hours and
40 minutes for abatement of the hazardous conditions (Exhibit P-6).
Upon returning to the site four and a half hours later, he
discovered that while the coal belt continued in operation, only 80%
of the loose coal accumulations had been removed and placed in the
travelway adjacent to the belt.
In addition, no rock dusting had
been performed (Tr. 60).
Lemon therefore issued~ withdrawal order,
and shut down the belt (Exhibit P-6). The abatement work was
subsequently completed by four miners and the mine foreman, with the
assistance of Lupo, within one hour, whereupon the order was
terminated (Tr. 64).
Respondent contends that it used diligence and good faith in an
attempt to abate the alleged violation.
It rejects petitioner's
claim that Lemon established the abatement period following a
discussion with Stuart (the mine's safety inspector), during which
Stuart allegedly indicated that two hours would be sufficient time
to abate the cited conditions (Tr. 35, 80).
Respondent denies that
such a conversation took place (Tr. 126). It further contends that
the abatement period was unreasonable due to Lemon's issuance of
further citations for conditions which also required abatement, and
the need to allow miners performing the abatement work a lunch
break.

1740

Upon careful review of the evidence, I find that respondent is
unconvincing in its attempt to establish that Lemon was unreasonable
in issuing the withdrawal order and refusing to extend the abatement
period.
Respondent offers no evidence that an extension of the
abatement period was requested.
Nor does the abatement period seem
unreasonable in relation to activities required for the abatement of
other cited violations.
Lemon testified that while he later issued
four other citations, the abatement deadline on at least two of them
was set for the following day or later (Tr. 142). While Lemon
established an abatement period of two hours and 40 minutes, he
actually allowed four and a half hours to abate before returning to
inspect such activities.
At that time, Lemon discovered that
necessary abatement work was incomplete although the necessary
manpower was apparently available to perform such duties, since upon
issuance of the withdrawal order, the abatement work was completed
within one hour.
Similar facts exist in u. s. Steel Corporation, 2
FMSHRC 832, 844 (April 1980)(ALJ), involving contest of a citation
and 104(b) withdrawal order.
In that case, Administrative Law Judge
Koutras found that mine management was less than diligent in
achieving abatement where manpower required for abatement work was
available and yet had been assigned to other duties.
Again, upon
issuance of a withdrawal order, abatement of a safety violation was
rapidly achieved.
In light of the foregoing, and the credible
evidence in th is case, I find that respondent failed. to make a
diligent and good faith effort to achieve abatement.
Conclusions of Law
Based upon the entire record in this case, and consistent with
my findings in the narrative portion of this decision, the following
conclusions of law are made:
1)
Respondent violated 30 C.F.R. § 75.400 a~ alleged by the
Secretary of Labor, and accordingly citation No. 1021163 is
·affirmed.
2)
Respondent failed to file a timely challenge to withdrawal
order No. 1021164 and therefore is estopped from attacking its
validity in this proceeding.
3)
Based on a consideration of the criteria in section llO(i)
of the Act, I conclude that an appropriate penalty for the violation
charged in citation No. 1021163 is $470.

ORDER
WHEREFORE IT IS ORDERED that citation No. 1021163 is affirmed
and respondent shall pay the above assessed penalty of $470.00
within 30 days of the date o~ this decision.

'-Z'~~A~,{ ,!:~
Virgi
• Vail
Admi strative Law Judge

Distribution:
Phyllis K. Caldwell, Esq., (Certified Mail), Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
s. V. Litizette, Esq., (Certified Mail), Price River Coal Company
178 south Main Street, Helper, Utah 84526

/blc

1'/42

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

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

..

OCTs S

CIVIL PENALTY PROCEEDING
Docket No. PENN 81-157
·A.C. No. 36~00917-03092
Lucerne No. 6 Mine

v.

HELVETIA COAL COMPANY,
Respondent
DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphiat
Pennsylvania, for Petitioner
William M. Darr, Esq., Helvetia Coal Company,
Indiana, Pennsylvania, for Respondent

Before:

Judge Fauver

This proceeding was 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 jeq:, for assessment of a
civil penalty for an alleged VIo ation of a mandatory
safety standard. The case was heard at Pittsburgh,
Pennsylvania.
Having considered the contentions of the parties and
the record as.a whole, I find that the preponderance of the
reliable, probative and substantial evidence establishes the
following:
FINDINGS OF FACT
1. At all pertinent times Helvetia Coal Company
(Respondent) operated an underground coal mine known as
Lucerne No. 6 Mine, which produced coal for sale or use in
or substantially affecting interstate commerce.

1743

2. On February 27, 1981, MSHA Inspector William R.
Collingsworth and his supervisor, John L. Daisley, conducted
an inspection at Lucerne No. 6 Mine. As they prepared to go
underground, Inspector Collingsworth noticed a discrepancy
between the lamps in the lamp rack and the metal tags on the
check-in board used to indicate who was underground. After
an investigation, the inspector and his supervisor determined
that twelve miners were underground although the check-in
tags corresponding to their lamp numbers were still on the
check-out board. They also found that twenty miners were
not present on the mine property although check-in tags on
the check-in board indicated they were underground.
3. The inspector determined that the check-in/out
boards constituted the established check-in, check-out
system.
4. He also determined that mine management knew or should
have known of the errors in the check-in/out boards system because
they were readily observable and he observed six mine foreman
enter or leave the mine without using the boards.
5. The inspector issued an order of withdrawal under
section 104(d) (2) of the Act, charging the operator with a
violation of 30 CFR 75.1715, alleging that:
The posted established check-in
check-out system was not being properly
used to provide a positive identification
of every person underground.
The order was terminated on March 5, 1981, after the individuals
who were listed in the order were reinstructed as to the proper
use of the check-in, check-out system.
DISCUSSION WITH FURTHER FINDINGS
The main issue is whether the check-in, check-out boards
were subject to the requirements of 30 CFR 75.1715, which states:
Each operator of a coal mine
shall establish a check-in and
check-out system which will provide
positive identification of every person
underground and will provide an accurate
record of the persons in the mine kept

1744

on the surf ace in a place chosen to
minimize the danger of destruction by
fire or other hazard.
Respondent contends the lamp records were the primary
check-in/out system and that the check-in, check-out boards
were merely a backup for the records kept by the lamp man
and, as such, were not subject to the above regulation. This
contention is not supported by the evidence. The inspector
observed at least six signs in the lamp house, each signed
by the mine foreman, which stated:
"All employees, be sure
to use the check-in and check-out board before you enter the
mine and after you arrive outside." The evidence shows that
the check-in, check-out boards and metal tags were the primary
means of identifying miners who were underground.
The lamp records might have served as a partial check-in/
out system, but its primary purpose was to keep an accurate
account of the miners for payroll purposes. The abbreviation
"A" was written on the lamp records to indicate that a miner
was "absent" for the day, and not to indicate that he was
not underground.
If the lamp records had been the primary
identification system, the system would have been in violation
of 30 CFR 75.1715, since these records did not identify
all of the individuals who were underground. The lamp
records dealt only with miners who reported at the beginning
of a shift; they did not record individuals who entered or
left the mine after a shift began. Also, the lamp records
did not record management.personnel who exited tne mine.
I hold that Respondent violated 30 CFR 75.1715 by its
improper use of the check-in, check-out boards and metal tags.
A civil penalty of $370.00 is proper in light of the statutory
criteria set forth in Section llO(i), including Respondent's
size and compliance history and the factors of negligence,
gravity and abatement.
Respondent was negligent in that the
violation could have been prevented by the exercise of
reasonable care. The gravity of the violation is serious.
Improper use of the check-in, check-out boards and tags
could result in unnecessary delays and confusion in a mine
rescue attempt and contribute to death or injury to mine
rescuers or persons caught in a mine disaster. Respondent
showed good faith in promptly abating the condition after
notice of the violation by MSHA.

1745

CONCLUSIONS OF LAW
1. The' undersigned judge has jurisdiction over this
proceeding.
2. At all pertinent times, Respondent's Lucerne No. 6
Mine was subject to the provisions of the Act.
3. Respondent violated 30 CFR 75.1715 as alleged in
Order No. 1042037.
Proposed findings and conclusions inconsistent with the
above are rejected.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay a
civil penalty of $370.00 within 30 days from the date of
this decision.

·--?' ) f 1 .
WJJZ.w~

L..
7 u-u. ,,- ~4..--

wi11 iam Fauver
Administrative Law Judge
Distribution:
David T. Bush, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, Pennsylvania
19104 (Certified Mail)
William M. Darr, Esq., 655 Church Street, Indiana, Pennsylvania
15701 (Certified Mail)
United Mine Workers, 900 15th Street, N.• w., Washington, D.C.
20005 (Certified Mail)

kg .

174G

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

October 5, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-118
A.C. No. 36-06100-03506

v.
Solar No. 9 Mine
SOLAR FUEL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

In this case, the notice of contest card was signed by
the operator and mailed to MSHA on March 14, 1983. On July 25,
1983, the Secretary of Labor mailed a motion for leave to
file late petition and a petition for assessment of civil
penalty.
On August 4, 1983, the oper~tor mailed a motion
for dismissal on the basis of untimely filing of the petition.
A civil penalty petition should be filed within 45 days
of receipt of a timely notice of contest of a penalty. 29
C.F.R. § 2700.27(a). The Commission has held that the late
filing of a petition will be accepted where the Secretary
demonstrates adequate cause and where there is no showing of
prejudice to the operator. Salt Lake County Road Department,
3 FMSHRC 1714 (July 28, 1981)
In his motion for leave to
file late petition, the Secretary states:
"The assessments
information and all administrative records pertaining to the
case were forwarded to the Solicitor's Office by Assessments.
However, the file was misplaced inadvertently and the civil
penalty petition was not filed in a timely manner."
The Secretary took over four months to file a petition
which should have been filed within 45 days.
The only
preferred excuse in this case is that the file was misplaced.
This bare assertion does not constitute adequate cause.
The
question of whether the operator was prejudiced by the delay
does not arise here because there is no showing of adequate
cause. A dismissal here is unfortunate for the enforcement
of the Act but I see no alternative. Hopefully, the Solicitor
will exercise greater care in the future.

174{

Accordingly, the operator's motion is Granted and this
case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Catherine O. Murphy, Esq., Office of the Solicitor, U.S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Mr. James L. Custer, Manager, Safety and Health, Solar Fuel
Company, P. 0. Box 488, Somerset, PA 15501
(Certified
Mail)

/ln

174B

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

22041

October 6, 1983
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
SHELBY EPERSON,
· Complainant

DISCRIMINATION PROCEEDINGS

.

Docket No. KENT 83-38-D
Jolene No. 1 Mine

v.
JOLENE I

INC. I
Respondent
CORRECTIVE ORDER

Pursuant to Commission Rule 65(c), 29 CFR § 2700.65(c),
the decision in this case issued September 30, 1983, is
hereby corrected as follows:
1.

Page 4, paragraph 3, line 1:
The word "February" is hereby corrected to read
"September".

2.

Page 7, paragraph 1, line 4:
The date "September 6, 1983" is hereby corrected
to read "September 6, 1982".

3.

Page 7, paragraph 2, line 1
The date, "May 28, 983 11 ·
to read "May 18, 19

Gary Melick
Assistant Chief
Distribution (by certified mail) :
Bernard Pafunda, Esq., Deskins a
Street, P.O. Box 799, Pikeville,

y

Pafunda, 105 1/2 Division
41501

Darryl A. Stewart, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203
Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
nsw

1749

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

OCT 6 l983

Contest of Citation

MONTEREY COAL COMPANY,
Contestant

Docket No: LAKE 80-413-R
Citation No. 775259; 9/11/80

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

Monterey No. 1 Mine

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

Civil Penalty Proceeding
Docket No: LAKE 81-59
A/O No: 11-00726-03060

v.

No. 1 Mine

MONTEREY COAL COMPANY,
Respondent
DECISION
Before:

Judge Moore

The above cases have been remanded to me for the
purpose of assessing a penalty.
Inasmuch as the Commission
has already affirmed the citation, only Docket No: LAKE 81-59
is actually befor~ me.
The parties have stipulated as to Monterey's size, history
of violation, negligence, good faith and gravity. As to
gravity, it is interesting to note that despite the government appellate counsel's representations· to the Commission
as to the safety concerns of MSHA, the assessment off ice assessed·
only $100 with no points for gravity.
In my opinion a penalty
of $50 is appropriate.
Monterey is accordingly ORDERED to pay MSHA, within 30
days, a civil penalty in the amount of $50.

~ (l. ?;?C?tW/ a,,

Charles C. Moore, Jr.,
Administra.tive Law Judge

1750

Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell &
Moring, 1100 Connecticut Avenue, NW., Washington, D.C. 20036
(Certified Mail)
Edward H. Fitch, Esq., Office of the $olicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900
15th Street, NW., Washington, D.C. 20005 (Certified Mail)

1751

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

OCl 6 \983
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 82-299
A.C. No. 36-00970-03502

v.
Maple Creek No. 1 Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Thomas A. Brown, Esq., and Matthew J. Rieder, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.
·

Before:

Judge Broderick

STATEMENT OF THE CASE
This proceeding involves six alleged violations of mandatory
safety standards. Each of the citations alleging the violations
was denominated significant and substantial. Pursuant to notice,
the case was heard in Uniontown, Pennsylvania, on June 22, 1983.
William R. Brown, James L. Potiseck, and Alvin R. Shade testified
for Petitioner; Dan Basile, John Pacsko, Walter J. Franczyk, and
Joseph Ritz testified for Respondent. Petitioner made a motion
on the record to withdraw Citation No. 1250103 after testimony
was taken concerning it.
I ordered the citation vacated and will
dismiss the penalty petition with respect to that citation.
Petitioner also moved to vacate Citation No. 1250106 because of
insuff icierit evidence to establish the violation charged.
I
ordered the citation vacated and will dismiss the penalty petition
with respect to that citation. Each party has filed a posthearing
brief. Based on the entire record and considering the contentions
of the parties, I make the following decision.

1752

FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS
1. Respondent is the owner and operator of an underground
coal mine in Washington County, Pennsylvania, known as the Maple
Creek No. 1 Mine.
2. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the subject
mine, and I have jurisdiction over the parties and subject matter
of this proceeding.
3. The subject mine produces 541,835 tons of coal annually.
Respondent produces 15,000,000 tons of coal annually. Respondent
is a large operator.
4. The assessment of civil penalties in this proceeding will
not affect Respondent's ability to continue in business.
5.
In the 24-month period prior to the issuance of the citations involved herein, Respondent had a total of 673 assessed violations. Of these, 11 were violations of 30 C.F.R. § 75.515,
5 of 75.1003, 3 of 75.302 and 13 of 75.516.
This history is not
such that penalties otherwise appropriate should be increased
because of it.
6.
In the case of each citation involved herein, the violation
was abated promptly and in good faith.
7. The subject mine is classified as a gassy mine.
It
liberates more than one million cubic feet of methane in a 24-hour
period.
8. Whether a cited violation is properly labelled as a
significant and substantial violation is per se irrelevant to a
determination of the appropriate penalty to be-assessed. The
penalties hereinafter assessed are based on the criteria in
section llO(i) of the Act.
CITATION NO. 1250104
This citation,-charging a violation of 30 C.F.R. § 75.511, was
issued when the inspector observed a shuttle car operator changing
a light bulb on his shuttle car. The citation alleges that the
shuttle car operator was not qualified to perform electrical work
and that he failed to lock out and tag the disconnecting device
when performing the work.
Changing the bulb required the removal
of the lens and the insertion of the bulb having two prongs into a
socket having two holes. This seems to be a rather elementary task,
~ut it clearly is electrical work.
The inspector (and apparently

1~15J

the shuttle car operator) interpret the term "qualified person"
to mean one who has had electrical training and has obtained his
"electrical papers." This interpretation was not rebutted by
Respondent's witnesses.
It is clear that the disconnecting device
was not locked out and tagged.
The power switch on the shuttle
car was turned off however. No bare wires were exposed when the
lens was removed.
The system carries 32 volts, AC. I conclude
that a violation was shown.
I further conclude, however, that an
injury was not likely to occur, and that a serious injury was
extremely unlikely. Following the test in the National Gypsum
decision, I conclude that the violation was not significant and
substantial. The violation was not serious.
There is no evidence
that Respondent was aware of the violation as it occurred, or that
it was deficient in its training program. Therefore, the violation
was not the result of negligence.
I conclude that an appropriate
penalty for this violation is $30.
CITATION NO. 1205105
This citation, charging a violation of 30 C.F.R. § 75.1003,
was issued because a mantrip stopped and discharged miners at an
area beyond the station where the trolley bar and wire were not
guarded. The trolley wire was about 6-1/2 feet above the floor.
The standard requires that trolley wires be guarded at man-trip
stations.
The inspector stated that the mantrip went approximately
100 feet past the regular station before stopping. Respondent's
assistant mine foreman testified that it did not go beyond the
station, but did admit that the mantrip may have gone "a foot or
two, the length of the portal bus" beyond the station, but "I
don't think the operator himself went beyond the unguarded
portion."
(Tr. 92).
I accept the testimony of the inspector that
the mantrip stopped beyond the regular mantrip station to discharge
miners.
I conclude that the standard is intended to prohibit such
an occurrence.
The hazard posed by this violation is that the
trolley operator was likely to contact the energized uninsulated
trolley wire.
The operator had to stand to "dog" the pole, and the
wire was head high. The violation was reasonably likely to result
in a serious injury. Therefore, the viola~ion was significant and
substantial.
It was a serious violation. ·The evidence does not
show that the violation was the result of Respondent's negligence.
I conclude that an appropriate penalty for the violation is $150.
CITATION NO. 1249389
This citation, charging a violation of 30 C.F.R. § 75.302-l(a),
was issued because Respondent mined a full cut of coal - 15 feet without extending the line curtain. The standard requires that
line brattice be installed at a distance of no greater than 10 feet
from the area of deepest penetration. Respondent was conducting
retreat mining at the time. The methane monitor on the continuous
miner was working properly as were the water sprays. The area was
well rockdusted. The inspector found 6,200 cubic feet of air at
the face, 1,200 more than the minimum required by the ventilation
plan.

1754

The failure to advance the line curtain to within 10 feet of
the face causes inadequate face ventilation.
In the event of a
methane liberation, an ignition and mine explosion could occur.
In a gassy mine, such an event is reasonably likely. The violation was significant and substantial. The inspector testified
that the mining machine operator told him that it was Respondent's
practice when the last cut was involved to go 12 feet inby the
curtain. The assistant mine foreman testified that the machine
operator told him that he misjudged the position of the curtain.
I conclude that moderate negligence was involved. I conclude that
$250 is an appropriate penalty for this violation.
CITATION NO. 1249546
This citation, charging a violation of 30 C.F.R. § 75.516,
was issued because an energized power wire was hung on a wire nail
affixed to a wooden post. The wire was insulated. There was no
tension on the wire, and the insulation did not appear to be
damaged.
The wire carried 560 to 600 volts of direct current. The
inspector stated that vibrations could damage the insulation and
bare the wire, which could cause a short circuit.
I find, however,
that there was little or no tension on the wire and that damage to
the insulation where the wire rested on the nail was unlikely.
I
conclude that there was a violation, but it was not significant and
substantial.
The inspector had cited Respondent for similar conditions previously. Therefore, I conclude that the violation, while
not serious, was the result of Respondent's negligence. An appropriate penalty for this violation is $75.
ORDER
Based upon the above findings of fact and conclusions of law,
IT IS ORDERED
1. Citation Nos. 1250103 and 1250106 are VACATED, and the
penalty petition is DISMISSED with respect to such citations.
2. Citation Nos. 1250104 and 1249546 ·are AFFIRMED but the
violations were not significant and substantial.
3. Citation Nos. 1205105 and 1249389 are AFFIRMED as issued
and the violations were significant and substantial.
4. Respondent shall, within 30 days of the date of this
decision, pay the following civil penalties for the violations
found herein to have occurred:

1755

Citation

Penalty

1250104
1250105
1249389
1249546

$ 30
150
250
75
$505

Total

j

.

/)

,;

{J./vu..e&
11
n~(:t?/(_
James A. Broderick
Administrative Law Judge

A-1:) ,:£:
1

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

1756

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

OCT 6 1983
UNITED MINE WORKERS OF AMERICA
ON BEHALF OF LOUIS MAHOLIC,
Complainant

v.

DISCRIMINATION COMPLAINT
Docket No. PENN 83-112-D
Russellton Mine

ANDY ONFICER AND BCNR MINING
CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This case involves a discrimination complaint filed on
March 9, 1983 by the complainant against the respondents
pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977. The respondents contested the allegations,
and the matter was scheduled for a hearing in Washington,
Pennsylvania, Wednesday, August 24, 1983 at 9:30 a.m. However, on the representations by complainant's counsel on
August 22, 1983, that the parties had reached a settlement of
the dispute, the hearing was cancelled and continued. The
UMWA now files a motion to approve the settlement.
The complainant, president of Local Union 3506; avers that
he was a representative of the miners for purposes of section
103(f) of the Act, and he alleges that he was suspended by
the respondent for insisting on being permitted to exercise
his walkaround rights during a MSHA inspection on September 24,
1982. Although he was later allowed to return to work, he
further .alleges that he was threatened with suspension if
he refused to work at any later date.
He further states
that a complaint was filed with MSHA on November 1, 1983, and
that by letter dated February 7, 1983, MSHA informed him
that on the basis of their investigation, no violation of
the anti-discrimination provisions of section 105(c) had
occurred.

1757

Discussion
In seeking dismissal of this complaint, the UMWA states
Mr. Maholic has informed them that all references to the
events of September 24, 1982, which triggered the filing of
this case have been removed from his personnel file.
In
addition, the UMNA has submitted a copy of a draft letter
from mine management to Mr. Maholic informing him of this
action, as well as the assurance by mine management that it
intends to provide authorized miners' representatives with
the opportunity to accompany the Secretary or his authorized
representative during physical inspections of the mine.
Conclusion and Order
It would appear to me that this dispute has now been
resolved to the mutual satisfaction of the parties. Accordingly,
the U~1WA' s motion to approve the settlement IS GRANTED, and
IT IS ORDERED that this case be DISMISSED.

~-,U~
Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC
20005 (Certified Mail)
B. K. Taoras, Esq., Kitt Energy Corp., 455 Race Track Rd.,
P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail)

/slk

/

1758

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

OCT 6 1983

CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 83-86
A.C. No. 36-04596-03503

v.

Bark Camp Strip

GLEN IRVAN CORPORATION,
Respondent

Docket No. PENN 83-87
A.C. No. 36-02391-03507
Bark Camp No. 1
DECISIONS

Appearances:

David Bush, Office of the Solicitor, U.S.
Department of Labor, Philidelphia, Pennsylvania·,
for Petitioner;
Robert M. Hanak, Esq., Reynoldsville, Pennsylvania,
for Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llO(a} of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a), charging the respondent
with 14 alleged violations of certain mandatory safety standards
found in Parts 50, 75, and 77, Title 30~ Code of Federal Regulations.
Respondent filed timely answers ·and the cases were
heard in Pittsburgh, Pennsylvania on July 27, 1983, along with
two other cases involving these same parties which were heard
that day.
Issues
The principal issue presented in these proceedings are
(1) whether respondent has violated the provisions of the Act
and implementing regulations as alleged in the proposal for
assessment of civil penalty filed, and, if so, (2) the appropriate
civil penalty that should be assessed against the respondent

1759

for the alleged violations based upon the criteria set forth
in section llO(i) of the Act. Additional issues raised 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.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

CoITu~ission

Rules, 29 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated that the respondent is subject
to the Act, that I have jurisdiction to hear and decide the
cases, that the respondent has a good history of prior citations,
and that it is a small operator (Tr. 5; 134-137).
Discussion
During a colloquy on the record with counsel for the
parties in these proceedings, it was made clear to counsel
that the Secretary's Part 100 Civil Penalty Assessment
regulations are not binding on the Commission or its Judges.
It is also clear to me that under the Act all civil penalty
proceedings docketed with the Commission: and its Judges are
de novo and that any penalty assessment to be levied by the
Judge is a de novo determination based upon the six statutory
criteria found~section llO(i) of the Act, and the evidence.
and information placed before him during the adjudication of
the case.
Sellersburg Stone Company, 5 FMSHRC 287, March 1983.
The fact that the petitioner may have determined that
some of the violations in issue in these proceedings are not
''significant and substantial", and therefore qualify for the
so-called "single penalty" assessment of $20 pursuant to
section 100.4, and are not to be considered by the petitioner
as part of the respondent's history of prior violations pursuant

·1760

to section 100.3(c), is not controlling or even relevant in
these proceedings. Regardless of the Secretary's regulations,
once Commission jurisdiction attaches, I am bound to follow
and apply the clear mandate of section llO(i) in determining
the civil penalty to be assessed for a proven violation after
due consideration of all of the criteria enumerated therein.
The fact that Congress chose to include language in section
llO(i) which arguably authorizes the Secretary not to make
findings on the penalty criteria clearly is inapplicable to
the Commission.
Section llO(i) of the Act requires Commission consideration
of all six penalty criteria, and the fact that the Secretary
chooses to ignore $20 citations as part of a mine operator's
compliance record is not controlling when the case is before
a Commission Judge. Accordingly, for civil penalty assessment
purposes, I will take into consideration all previously paid
citations by the respondent, including any "single penalty"
$20 citations which have been paid.
In the course of the hearings in these cases, the parties
advised me that they agreed to a proposed settlement for all
of the citations which were originally disputed. However, with
respect to one of the citations in PENN 83-66, No. 2000776,
December 7, 1982, citing a violation of mandatory standard
77.1710(i), the parties advised that the alleged fact of
violation is in dispute and testimony from the inspector who
issued the citation and the respondent's safety director was
offered for the record.
With regard to Docket PENN 83-87, the parties presented
their arguments in support of the proposed settlement on the
record (Tr. 88-108), including information concerning the six
statutory criteria found in section 110(1). After consideration
of the arguments presented in support of the proposed settlement,
and pursuant to Commission Rule 30, 29 CFR 2700.30, the settlement
was approved, and the citations, initial assessments-, and the
settlement a~ounts are as follows:
Citation No.
2016781
2016783
2016784
2016785
2016787
2016789
2016791

Date
11/15/82
11/15/82
11/15/82
11/16/82
11/17/82
11/18/82
11/19/82

30 CFR Section

Assessment

75.1702
75.200
75.503
75.517
75.1100-3
75.517
75.326

$

$

1761

20
46
20
79
20
112
20
317

Settlement
$

$

20
46
20
79
20
90
20
295

In Docket No. PENN 83-86, the parties proposed a reduction
of $20 in the penalty assessed for Citation No. 2000774.
However, after considering the circumstances concerning this
violation, the proposed settlement reduction was rejected and I
approved payment for the.full amount of the $58 penalty
assessment (Tr. 75-84; 86).
With regard to Citation Nos. 2000773, 2000696, 2000775,
2000777, and 2000778, after consideration of the arguments
presented by the parties in support of their settlement proposals,
including information concerning the six statutory criteria
found in section llO(i), I approved the proposed settlements
requiring the respondent to pay the full amount of the proposed
civil penalty assessments (Tr. 41-57-)-.~The MSHA inspector
who issued the citations and the respondent's safety director
were both present in the courtroom and were in agreement with
the disposition made of these citations. The citations,
initial assessments, and the approved settlement amounts are
as follows:
Citation No.

Date

2000773
2000774
2000696
2000775
2000777
2000778

12/2/82
77.409(a)
12/2/82
77.1710(i)
12/3/82 - . 50.30
12/7/82
77.410
77.1605(a)
12/7/82
77.208(d)
12/10/82

30 CFR Section

Assessment

Settlement

$

20
58
20
20
20
20
$ 158

20
58
20
20
20
20
$ 158

$

With regard to citation no. 2000776 charging a violation
of mandatory safety standard 77.1710(i), there is a dispute
as to whether or not the facts and circumstances support a
violation of the cited standard. The condition or practice is
described by the inspector is as follows:
A functional set of seat belts were not
provided for the Caterpiller model D9H bulldozer
SN 90 V 5229 on which roll-over protection was
provided. The seat belts were not functional
in that the right seat belt was not provided.
The dozer was operating in pit 008 on terrain
where a danger of overturning existed. The
bulldozer was operating under the supervision
of Orland Gray. (Emphasis added).
Section 77.1710(i) provides in pertinent part as follows:
Each employee working in a surf ace coal mine
or in the surf ace work areas of an underground
coal mine shall be required to wear protective
clothing and devices as indicated below:

1762

* * * *
(i) Seatbelts in a vehicle where there is
a danger of overturning and where roll
protection is provided.
MSHA Inspector John Brighenti confirmed that he issued the
citation in question and he explained that at 9:30 a.m.
when he inspected the cited bulldozer he told the operator,
Merle Stewart that he wished to check the seat belts. The
left part of the belt was visible, but he could not see the
right part which contained the buckle. After Mr. Stewart
advised him that the buckle end of the belt which was not
visible was probably wedged under the seat, he and Mr. Stewart
pulled up the seat, and while they both observed the remaining
portion of the left side of the belt, they could not find
the buckle end and Mr. Stewart exclaimed that "it is not here"
(Tr. 59-60). Mr. Brighenti then advised foreman Orland Gray
that he was going to issue a citation because he could not
see or find the missing end of the seat belt. At approximately
10:55 a.m., Mr. Gray shut the bulldozer down, and he and
.Mr. Stewart proceeded to work on the seat belts. Later, at
11:30 a.m., Mr. Gray approached Mr. Brighenti and advised
him that "That's not a violation because the right strap
was in there also" (Tr. 61). Mr. Brighenti advised Mi. Gray
that since he couldn't find the missing portion of the belt
when he first inspected and observed the bulldozer, as far
as he was concerned the belt was not "provided" as required
by section 77.1710(i), and that the violation would stand
(Tr. 59-61) •
In explaining why he refused to change his mind after
Mr. Gray had advised him that the missing portion of the belt
was finally discovered, Mr. Brighenti stated that it was
probably wedged down under the seat between the final machine
drives and the vehicle frame.
Since he and Mr. Stewart could
not see or find it after the seat was raised, and since it
obviously took .Mr. Gray and Mr. Stewart ~pproximately 35 minutes
to locate it, Mr. Brighenti was of the view that it was not
"provided", was not functional, and was not available to the
driver who should have been wearing it (Tr. 62-64). The bulldozer
was provided with rollover protection.
Respondent's defense is that the seat belt portion which
was not visible to the inspector was in fact "provided" and
on the cited bulldozer, albeit it was discovered wedged
under the seat after the foreman and the operator made a search
for it (Tr. 65). Since the inspector accepted the foreman's
word that the missing portion of the belt was later discovered,
and since there is no contention or evidence that the respondent

1763

here installed a new seat belt to achieve abatement, .respondent
takes the position that the belt was provided and that it
complied with the cited section (Tr. 68). Respondent presented
no testimony on the violation.
,

Findings and Conclusions
Respondent's defense to Citation No. 2000776 IS REJECTED.
On the facts of this case I conclude that the inspector acted
reasonably in the circumstances. Since he and the driver
could not find the buckle end of the seat belt after lifting
the seat and looking for it, the inspector simply concluded
that it was missing and issued the citation. Section 77.1710(i)
requires the driver to wear the belt while he is operating the
bulldozer, and since the driver couldn't locate one end of
it after the vehicle was stopped for inspection it seems obvious
to me that he was not buckled into the belt while the vehicle
was being operated. Accordingly, the citation IS AFFIRMED.
The lack of a totally functional seat belt at the time
the citation issued presented a reasonably serious situation
which could have been avoided by the exercise of reasonable
care on the part of the driver or a supervisor who should
have checked the equipment out before placing it in operation.
Accordingly, I conclude that the violation was serious and
that it resulted from ordinary negligence.
I also conclude
that the respondent demonstrated good faith compliance and
that the payment of a civil penalty in the amount of $58 as
proposed by the petitioner will have no adverse impact on the
respondent's ability to continue in business.
ORDER
Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above in Docket Nos. PENN 83-86 and
PENN 83-87.
Respondent is also ORDERED to pay an additional
civil penalty in the amount of $58 for Citation No. 2000776
which I have affirmed in Docket No. PENN 83-86. Payment
for all of the assessed violations shall.be made to the petitioner
within thirty (30) days of the date of these decisions, and upon
receipt of payment, these proceedings are dismissed.

.

~tit

Judge

Distribution:
David Bush, ~sq., U.S. Depart. of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
»

Robert M. Hanak, Esq., 311 Main St., Box 250, Reynoldsville, PA
15651 (Certified Mail)
/slk

1764

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

OCT7 18
SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Civil Penalty Proceeding
Docket No: KENT 83-62
A/O No: 15-10062-03501

v.

Coal Carriers Mine

COAL CARRIERS, INC.,
Respondent
DECISION
Before:

Judge Moore

By letter of September 29, 1983 the Solicitor has
advised that respondent has filed for bankruptcy and is no
longer interested in contesting the citations and penalties.
A copy of a letter from respondent's attorney confirms this.
This is not a settlement. It is more like a default in
that respondent has announced, in effect, that it would not
show up at a hearing. I am therefore· treating the case as I
would an actual default, but without the issuance of a useless show cause order.

o;:;;;ltc.f

The citations are affirmed and respondent is ordered to
pay to MSHA, within 30
days, a
;;;~ ~.
Charles c. Moore, Jr.,
Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37202 (Certified Mail)

Mr. Byron B. Terry, Mine Consultants, Inc.,
Beaver Dam, KY 42320 (Certified Mail)

P.O. Box 431,

Mr. William Nestor, Vice President & General Manager, Coal
Carriers, Inc., P.O. Box 956, Bowling Green, KY

/db

1765

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

v.
PRICE RIVER COAL COMPANY,
formerly BRAZTAH CORPORATION,
Respondent

OCT 7 1983

CIVIL PENALTY PROCEEDINGS

.
.

Docket No. WEST 80-83
A.C. No. 42-01202-03021 V
Docket No. WEST 80-135
A.C. No. 42-01202-03024
Price River No. 5 Mine
(formerly Braztah No. 5 Mine)

DECISION
Appearances:

Phyllis K. Caldwell, Esq., Office of the Solicitor
U.S. Department of Labor, Denver, Colorado,
for Petitioner:
Stanley v. Litizzette, Esq., Price River Coal
Company formerly Braztah Corporation,
Helper, Utah,
for Respondent.

Before:

Judge Vail
Statement of the Cases

These cases are before me upon petition for assessment of civil
penalties by the Secretary of Labor pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~· (the "Act").
In Docket No. WEST 80-83, captioned above,
respondent (Price River Coal Company, formerly Braztah Corporation)
is charged with violation of safety standard 30 C.F.R. § 75.400 in
citation No. 789581. The citation alleged that the violation at
respondent's Price River Coal Co. No. 5 Mine (formerly Braztah No. 5
Mine) was of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety hazard and that
there was an unwarrantable failure on the part of respondent
justifying action pursuant to section 104(d)(l) of the Act. Within
90 days of the issuance of that citation, respondent was charged
with an unwarrantable failure to comply with 30 C.F.R. § 75.200 in
withdrawal order No. 789596, also issued pursuant to section
104(d)(l) of the Act.
In Docket No. WEST 80-135, captioned above, respondent was
charged in citation No. 789961 with a safety violation pursuant to
section 104(a) of the Act and 30 C.F.R. 75.1403.

176G

Upon agreement by the parties, the cases were consolidated for
hearing and decision.
Following notice to the parties, a hearing on
the merits was held in Salt Lake City, Utah.
No jurisdictional
issues were raised.
Both parties filed post-hearing briefs.
Issues
1)
Did respondent violate safety standard 75.400, and if so, is
a review of special findings related to the citation appropriate?
If the alleged violation occurred, what civil penalty should be
assessed?
2) Was respondent properly charged with a violation of safety
standard 75.200 in a withdrawal order, and if so, may the special
findings issued in conjunction with the charged violation also be
reviewed? If the alleged violation occurred, what civil penalty may
properly be assessed?
3) was respondent properly charged with violation of safety
standard 75.1403, and if so, what civil penalty should be assessed?
Additional issues raised during the proceeding are identified
and disposed of where appropriate in the course of this decision.
STIPULATIONS
At the outset of the hearing, the parties stipulated to several
facts relevant to the assessment of penalties.
It was agreed that:
(1) respondent's Price River No. 5 mine is a large operation; (2) the
total number of assessed violations for the mine in the 24 months
prior to May 14, 1979 was 223; and (3) ·payment of penalties would not
impair respondent's ability to continue in business.
DOCKET NO. WEST 80-83
Citation No. 789581
on May 14, 1979, MSHA inspector Donald B. Hanna conducted an
inspection of respondent's Price River Coal Co. No. 5 Mine (formerly
Braztah No. 5 Mine).
During the inspection, Hanna issued citation

No. 789581, pursuant to section 104(d)(l) of the Act. 1 ;
Respondent was charged with an unwarrantable failure to comply with
safety standard 30 C.F.R. § 75.400, which provides as follows:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
The citation also alleges that the violation was "significant
and substantial."
Hanna stated in the citation that combustible materials had been
allowed to accumulate in the mine's 6th West working section along
the No.
1 belt.
Float coal dust was deposited on rock-dusted
surfaces along the operating belt conveyor which was transporting
coal. The float coal dust ranged in color from gray to black,
affected an area 20 feet wide in the entry and up to 40 feet wide at
the crosscut intersections, and extended a distance of approximately
400 feet from the belt tail-piece outby five crosscuts.
In addition,
combustible materials, loose wood, pieces of brattice, fine dry coal
dust and loose coal cuttings had been allowed to accumulate along
both sides of the belt conveyor. The coal dust and loose coal was
approximately one inch deep in the entry, and at a depth ranging from
approximately two to twelve inches in the area of one side of the
five crosscuts.
The No. 1 belt entry had been reported dark and in
need of rock dusting prior to the day shift in the mine's pre-shift
examination book.
The report had been signed by the mine foreman.

1/ Section 104(d)(l) of the Act provides in pertinent part as
follows:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act.

1768

No action to abate the condition was detected by the inspector at the
time he issued the citation (Exhibit P-1).
Hanna repeated such observations during the hearing (Tr. 188,
190-196).
In addition, he testified that at the time of his
inspection he noted that loose coal had accumulated between the
belt's tail-piece roller and a safety guard.
He observed that the
coal was being ground by the operating belt into coal dust and float
coal dust, was then carried by air currents and deposited at an
"overcast" at the 5th crosscut (Tr. 188, 194).
The time for abatement of the conditions was set for 4:00 p.m.
on May 14, 1979. The abatement period was subsequently extended
until 11:00 p.m. due to the extent of accumulations and abatement
work required.
When Hanna returned to the area at 9:05 a.m. on May
15, 1979, the abatement work was approved: the combustible materials
had been removed, and the area had been dusted with 200 pounds of
rock dust (Tr. 184, 199-200, 207, 208. Exhibit P-1). Hanna estimated
that it took crews of at least six men working during the day and
night shift between ten and fifteen hours to abate the condition.
On December 10, 1979, the Secretary filed a petition for the
assessment of a civil penalty against respondent predicated on the
issuance of the citation charging violation of safety standard
75.200.
The Secretary proposed a penalty of $1,000.00. Respondent
duly contested the proposed assessment of penalty.
Respondent failed to rebut Hanna's findings.
In fact, John
Tatton, respondent's safety inspector who accompanied Hanna on his
underground inspection of the coal mine, admitted during the hearing
that fine dry coal dust (varying in color from gray to black), loose
coal cuttings, wood, and pieces of brattice had accumulated at spot
locations in the cited area (Tr.
167-169).
since Hanna's findings were not rebutted by respondent but
instead were actually corroborated in part by respondent's own
witness, I accept as fact the evidence and testimony presented by the
petitioner.
I therefore find that respondent allowed combustible
materials to accumulate in the mine's 6th West working section along
the No. 1 belt and that such accumulations constituted a violation of
safety standard 75.400.
I shall next address issues raised by the parties involving the
special findings that such a violation was "significant and substantial," and represented respondent's "unwarrantable failure" to
comply with a mandatory safety standard. such findings are necessary
in order to support Hanna's issuance of a citation pursuant to
section 104(d)(l) of the Act. Petitioner contends that the
accumulation of combustible materials constituted a "significant and
substantial" violation.
Hanna testified that an explosion of float
coal dust in the area of the 6th West working section along the No. 1

1769

'belt was possible if sufficient ignition charge existed. Hanna
further stated that potential ignition sources included electrical
components and cables, and frictional heat being generated by coal
being ground at the tail-piece of the No. 1 belt (Tr. 189, 211, 217}.
He believed that the possibility of fire and explosion posed a threat
of serious and fatal injury to miners (Tr. 180}.
Respondent denies that the accumulations of combustible
materials represented a "significant and substantial" violation.
Respondent in its post-hearing brief suggests that the condition was
not signifi~ant because the "inspector admitted that the condition
did not require shutting the production down and that it 'wasn't that
bad' ••• p. 241." Upon reviewing the transcript, I find that Hanna
did not make such a statement.
Instead, Hanna testified that
although the condition was not an imminent danger, the float coal
dust represented a serious violation having significant and
substantial possibility of ignition (Tr. 109, 110}.
The finding of whether a violation is "significant and ·
substantial" depends on whether there existed a reasonable likelihood
that the hazard contributed to or would have resulted in an injury of
a reasonably serious nature. Cement Division, National Gypsum
Company, 3 FMSHRC 822 (April 198l}(ALJ}. The test involves two
considerations: the probability of resulting injury and the
seriousness of the resulting injury. Upon analysis of the testimony
at the hearing and the facts surrounding the violation, I am
convinced that at the time the citation involved here was issued
there was a reasonable likelihood that the hazard of float coal dust
ignition would have resulted in serious or fatal injury to miners in
the area of the 6th West working section.
Respondent's seeming
confusion between a finding of "significant and substantial"
violation and "imminent danger" does not disturb such a finding.
Imminent danger is define~ in the Act 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," 30 u.s.c. § 802(j}, emphasis
added.
For a hazard to be termed significant and substantial, no
determination need be made that an accident may reasonably be
expected to occur before the condition can be abated.
Accordingly, I conclude that the violation of standard 75.400
was "significant and substantial." A determination must next be made
of the issues related to Hanna's finding that the violation was the
result of respondent's "unwarrantable failure" to comply with the
mandatory safety regulation.
The standard by which an "unwarrantable failure" is determined
was established in Zeigler Coal Company, 7 IBMA 280 (1977}. That·

1770

se stated that a violation is the result of an unwarranted failure
if the violative condition is one which the operator knew or should
have known existed, or which the operator failed to correct through
indifference ~r lack of reasonable care.
In support of the issuance
of a 104(d}(l} citation charging "unwarrantable failure," Hanna
testified to his belief that the combustible materials had accumulated over more than one shift (Tr. 209}, and that an agent of the
respondent (the mine foreman, Marinos} knew of the violative
condition due to reports made in the mine's pre-shift book by the
fire boss.
Hanna testified that the violative condition along the
No. 1 belt had been reported in the pre-shift book by the fire boss
on the day of the inspection, and on numerous times over the period
of a month (Tr. 1B6}, 206-207, 212}.
Despite Hanna's testimony citing "unwarrantable failure," the
Secretary takes the position that under Windsor Power House Coal
Company, 2 FMSHRC 1739 (July 1980}(ALJ} the special finding of
"Unwarrantable failure" is not at issue and need not be proved in a
penalty proceeding on a 104(d}(l} citation (petitioner's brief at
4} •

In arguing against the finding of "unwarrantable failure," the
respondent charges that the inspector based the finding only on the
fact that the condition had been reported in the pre-shift book.
Respondent further states that:
Under the facts of the case there was no evidence that the
operator intentionally, knowingly, or recklessly permitted
accumulations of combustible materials.
The mere fact that
the operator was aware of the condition (emphasis added} is
not sufficient to constitute an unwarrantable citation. See
Freeman Coal Mining case ••• (respondent's prief at 2).
\\.

In addressing the arguments of the parties, I first reject
petitioner's claim that a finding of "unwarrantable failure" need not
be proved in a penalty proceeding involving a citation issued
pursuant to section 104(d}(l} of the Act.
In Windsor Power, supra,
Judge Melick found that the Act's provisions allow an operator to
challenge the existence of a violation charged in a citation in a
civil penalty proceedings. However, he found no authority under the
Act to consider the special findings of "significant and substantial"
and "unwarrantable failure" in civil penalty proceedings: failuie to
timely file a notice of contest to the citation within 30 days after
its receipt foreclosed the operator from challenging such special
findings. 2 FMSHRC at 1741.

1771

Upon reviewing a more recent Commission decision, I find that
both the existence of a violation and the special findings charged in
a citation may properly be reviewed in a civil penalty proceeding.
In National Gypsum, supra, the Commission found that the validity of
special findings is in issue in a penalty proceeding. Review of
special findings charging an operator with "significant and
substantial" violation and "unwarrantable failure" to comply with
federal regulation was found by the Commission to be important due to
the effect of such findings in triggering the possible issuance of
subsequent withdrawal orders under appropriate provisions of the
Act.
In accord with the Commission decision, I therefore reject
petitioner's contention that the special finding of "unwarrantable
failure" is not at issue in the present civil penalty proceeding.
Instead, I find that the charge of respondent's "unwarrantable
failure" to comply with safety standard 75.400 must be reviewed.
A finding of unwarrantable failure on respondent's part is
supported by Hanna's undisputed testimony that combustible material
had accumulated during more than one shift.
Furthermore, the
evidence shows that the violative condition had been reported at
least once in the pre-shift book prior to Hanna's inspection (Exhibit
R-1).
Respondent did attempt to rebut Hanna's testimony that he
observed that the cited condition had been reported in the pre-shift
book numerous times in the month preceding his inspection.
However,
I find such an attempt to be unsuccessful.
Respondent produced three
non-consecutive pages and reports from the pre-shift book, showing
two pre-shift reports with no mention of the violative condition
(Exhibit R-1).
However, respondent had not preserved the actual
pre-shift book.
such selective production of evidence is ineffective
in rebutting Hanna's charge that respondent had notice of the
violative condition.
I therefore conclude that respondent knew or should have known
of the violative condition, and that it failed to correct such a
condition.
Its violation of safety standard 75.400 therefore
constituted unwarrantable failure to comply with the law.
In making
such a finding, I reject respondent's claim that under Freeman Coal
Mining Company, 1 MSHC 1209 (December 1974), mere awareness of a
hazardous condition is not enough to constitute an "unwarrantable
failure."
Respondent misreads the cited case, which provided in
pertinent part that under the Federal Coal Mine Health and Safety Act
of 1969:
The issue of "unwarrantable failure" in an "accumulation"
case presents the question of whether the operator intentionally or knowingly or recklessly permitted the accumulation of or failed to clean up the particular masses
of combustible materials •••
It does not concern the
question of whether the operator was at fault for not being

1772

aware generally that the Act proscribes and requires cleanup of "accumulations." 1 MSHC at 1211.
In summary, both special findings of "significant and substantial"
and "unwarrantable failure" are affirmed, as is citation No. 789581.
PENALTY
As previously noted at the outset of this decision, the parties
stipulated to the mine's size, history of violations and financial
status.
Further criteria that need to be discussed in determining
the appropriate civil penalty to be assessed are the respondent's
negligence, the gravity of the violation, and good faith abatement
efforts.
In addressing the issue of negligence, I accept inspector
Hanna's testimony that the combustible materials had accumulated over
a period longer than one work shift, and that in fact Hanna observed
that the violative conditions had been reported numerous times over
the period of a month in the mines pre-shift book.
In view of such
testimony, I conclude that respondent had adequate notice of a
hazardous condition and yet failed to correct it.
I therefore find
that respondent's failure to remove combustible materials and
adequately rock dust in the area of the No. 1 belt amounts to gross
negligence.
The evidence in this case shows that the gravity of the
violation was serious.
The accumulations of combustible materials,
in combination with significant accumulations of float coal dust,
created a serious hazard of explosion and consequently the threat of
serious or fatal injury to miners. Safety inspector for the mine,
John Tatton, testified that in the event of an explosion, the 6th
west and 4th West crews (each consisting of approximately seven
people) would be involved, as well as several other mine employees
having duties in the area (Tr. 178, 179).
Finally, respondent demonstrated good faith in the abatement of
the violative conditions. Two crews were assigned to perform
abatement duties and after continuous work, abatement was completed
within ten to fifteen hours.
On balance, I find that the penalty of $1,000.00 as proposed by
the secretary to be appropriate.
Withdrawal Order No. 789596
Inspector Hanna returned to the Price River Coal Co. No. 5 Mine
on June 14, 1979 (within 90 days of the issuance of citation No.
789581) to conduct an inspection. At 12:38 a.m., Hanna issued
withdrawal order No. 789596 pursuant to section 104(d)(l) of the Act,
alleging that respondent had failed unwarrantably to support the roof
in the areas of the No. 4 entry and the No. 3 crosscut.
section

1773

104(d)(l) provides that if during any mine inspection, an MSHA
inspector finds a violation of any mandatory health or safety
standard, and further finds that such violation could significantly
and substantially contribute to a mine hazard and is due to an
operator's unwarrantable failure to comply with the standard, such
findings shall be included in a citation issued to the operator.
Furthermore: If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance of such
citation, an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such
operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such
violation has been abated.
Specifically, Hanna cited respondent.with
violation of 30 C.F.R. § 75.200 which 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.
The order also alleges that the violation was "significant and
substantial."
Following abatement of the cited condition, the order
was terminated on June 14, 1979.
On December 10, 1979 the Secretary filed a petition for the
assessment of a civil penalty on the issuance of withdrawal order
789596 for a violation of 75.200. The Secretary proposed a penalty
of $1,500.00.
Respondent duly contested the proposed assessment of
penalty. However, respondent did not file a "notice of contest" to
withd2awal order No. 789596, pursuant to section 105(d) of the
Act. _/

~/

Section 105(d) of the Act provides in pertinent part 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

footnote continued

1774

The undisputed evidence establishes that the mine's roof control
plan required that any roof having a width greater than 20 feet be
supported by timbers (Tr. 271). However, in the mine's No. 4 entry,
main North working section, no mine posts had been installed for a
distance of 39 feet although the entry had been driven from a width
of 20 feet, six inches up to 25 feet wide.
In addition, the No. 3
crosscut between the No. 3 and No. 4 entries had been driven to a
width of 21 feet, eight inches; and again no mine posts had been
installed (Exhibit P-4).
Hanna made all measurements with a standard
measuring tape (Tr. 279). The condition had been reported by the
night shift foreman on June 13, 1979 in the mine's on-shift book
(Exhibit R-3, Tr. 283).
The mine foreman's report noted that the
"top was working" in the area so that hydraulic jacks could not be
set (Tr. 283).
While the area had been adequately roof bolted within four hours
after the mine foreman's report, no timbering had been performed in
the twelve hour interim between the time the report was made and that
of the inspection (Tr. 293, 295, 302, 304).
Timbers were available
for installation, and installed within twenty minutes after issuance
of the withdrawal order.
Further unrebutted evidence presented by petitioner at the
hearing established that respondent's failure to adequately support
the roof exposed miners to the potential hazard of a roof fall (Tr.
288). At the time of the inspection, Hanna observed ~igns that the
pressure in the area was building up. The signs included excessive
sloughage, roof fracturing, and flooring being pushed up (Tr. 287).
In addition, Hanna experienced a "bounce" (quick jarring of the ribs
and roof) while writing the citation (Tr. 286).
In the event of an
accidental roof fall, two miners and an on-shift inspector might have
been exposed to serious or fatal injury (Tr. 290).
While respondent failed to rebut the Secretary's charge of
hazardous roof conditions, it nevertheless urges that the withdrawal
order be dismissed and that the proposed penalty be disallowed.
In
support thereof, respondent claims that citation No. 789581 was
invalid. As a consequence, withdrawal order No. 789596 is claimed to
be invalid also, since the order was triggered by the citation's
previous issuance pursuant to section 104(d)(l) of the Act.
Footnote 2 con't
the reasonableness of the length of abatement time fixed in 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.

1775

Lengthy discussion of respondent's contention is unnecessary.
I
have affirmed citation No. 789581 (issued May 14, 1979} and the associated violation and "unwarrantable failure" to comply with a
mandatory standard.
I therefore find that the citation created a
proper predicate under the Act for issuance of a 104(d}(l} withdrawal
order.
I therefore turn next to the legal arguments presented by the
Secretary.
Petitioner contends that since this is a penalty proceeding, the
validity of the withdrawal order is not at issue.
The Secretary
argues that as a consequence, the Administrative Law Judge is limited
to a determination of (1) the existence of a violation: (2) whether
the ~iolation of standard 75.200 was "significant and substantial:"
and (3) an appropriate penalty.
The Secretary contends that under
such case law as Windsor Power House Coal Company, 2 FMSHRC 1739
(July 1980)(ALJ}, respondent is estopped from contesting the special
finding of "unwarrantable failure" due to its failure to timely
contest the withdrawal order (petitioner's brief at 7, 8).
Commission decisions arising under the old 1969 Act have
established the precedent that the validity of a withdrawal order is
not an issue in a penalty proceeding. Pontiki Coal Corporation, 1
FMSHRC 1476 (October 1979): Wolf Creek Collieries Company, 1 FMSHRC
(March 1979). However, the existence of a violation itself and
penalty assessment are still at issue in such a case. Whether the
validity of special findings that accompany a cited violation may
also be challenged in a penalty proceeding is not so easily settled.
To my knowledge, the Commission has not dealt squarely with the right
of an operator to question special findings in a penalty case.
Decisions of administrative law judges dealing with the issue are in
conflict.
Both Windsor Power, supra, involving a 104(d)(l) citation,
and Black Diamond Coal Mining Co., 5 FMSHRC 764 (April 1983)(ALJ),
involving 104(d)(l) withdrawal orders, have suggested that the
failure to contest a 104(d)(l) citation or withdrawal order
accompanied by special findings within 30 days of issuance estops an
operator from challenging such findings during a civil penalty
proceeding.
However, Administrative Law Judge Carlson held in CF&I
Steel Corporation, 4 FMSHRC 1777 (September 1982)(ALJ), that an~~
operator who fails to contest a withdrawal order issued pursuant to
section 104(d) of the Act may nevertheless challenge the validity of
accompanying special findings in a subsequent penalty proceeding
arising from the same violation. The judge in that case stated that
"special findings are merely incidents of the violation, not the
withdrawal order." 4 FMSHRC at 1786.
I accept such reasoning as a rational extension of the
Commission decision in National Gypsum, supra, which allowed for
the review of special findings charged in a citation during a civil
penalty proceeding.
I therefore find CF&I Steel Corporation to be

1778

determinative in dealting with the issues at hand.
Accordingly, I
conclude that the present discussion of withdrawal order No. 789596
must include a ruling on the special findings accompanying the
104(d)(l) order, as well as a determination of a violation and
assessment of a civil penalty.
Turning to the unrebutted evidence and testimony of this case, I
find that the evidence establishes that substantial portions of the
roof in the mine's No. 4 entry and associated No. 3 crosscut were
inadequately supported in violation of safety standard 75.200.
I
further conclude that the violation was "significant and substantial"
under the definition of National Gypsum, supra. The unstable and
inadequately supported roof made a roof fall reasonably likely.
In
the event of such a collapse, serious or fatal injury to miners under
the fall was almost inevitable.
I turn finally to the issue of respondent's "unwarrantable
failure" to comply with standard 75.200.
"Unwarranted failure"
occurs where the violative condition is one of which the operator had
knowledge or should have had knowledge, or which the operator failed
to correct through indifference or lack of reasonable care: Zeigler
Coal, supra.
Respondent argues that under the rule of Eastern Associated Coal
Corporation, 3 IBMA 331 (1974), the violation charged in the
withdrawal order was not caused by the operator's unwarrantable
failure, since the evidence does not show that the operator intentionally, knowingly, or recklessly allowed the hazardous roof
condition to exist ~respondent's brief at 4). The Interior Board of
Mine Operations Appeals, in reviewing a violation under the 1969
Federal Coal Mine Health and Safety Act, did use such criteria in
discussing the requisite degree of fault necessary to support a
finding of unwarrantable failure.
However, the Board also cited the
Act's legislative history as defining unwarrantable failure as:
••• the failure of an operator to abate a violation he knew
or should have known existed, or the failure to abate a
violation because of lack of due diligence, or because of
indifference or lack of reasonable care, on the operator's
part. 2 IBMA at 356.
Such a definition is not significantly different from the
definition expressed in Ziegler Coal and now commonly cited in
Commission decisions.
Using the Ziegler Coal definition, I therefore
find that the evidence in the case before me shows that violation was
the product of respondent's "unwarranted failure" to comply with
standard 75.200.
It is apparent that respondent had notice of the
hazardous roof condition due to an on-shift report made by the night
shift foreman approximately twelve hours before Hanna's inspection.
Although the area had stabilized sufficiently within four hours to
allow roof-bolting, no timbers were installed as required by the
mine's approved roof plan.

In summary, I find that violation of standard 75.200 did occur
as charged in withdrawal order No. 789596, and that special findings
of "significant and substantial" violation and "unwarrantable
failure" are supported by the evidence in the case.
PENALTY
The mine's size, history of violations, and financial status
were stipulated by the parties.
From the evidence, I must conclude that the operator was
negligent in failing to install timbers in the cited areas of the
mine.
Since the condition had been reported in the mine's on-shift
book, respondent had notice of the hazard and violation, and yet
failed to abate it in the twelve hours preceding the inspection.
I
therefore find that respondent's failure to correct the hazardous
condition amounts to gross negligence.
The evidence in the case shows that the gravity of the violation
was severe.
In failing to properly support the roof in the area of
the No. 4 entry and associated No. 3 crosscut, respondent exposed at
least three miners to the hazard of a roof fall.
In the event of
such a roof fall, serious or fatal injury to the miners was highly
probable.
Respondent demonstrated good faith in abating the violative
condition. Timbers were installed in accord with the mine roof plan
within twenty minutes of the issuance of the withdrawal order.
On balance, I find that the penalty of $1,500.00 as proposed by
the Secretary is appropriate.
DOCKET NO. WEST 80-135
Th~s case involves the issuance of a section 104(a) citation No.
789961 _I for a violation of 30 C.F.R. § 75.1403 which provides

ll

Section 104(a) of the Act provides in pertinent part as follows:

If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a coal or
other mine subject to this Act has violated this Act, or any
mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator.
Each citation shall be
in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the Act,
standard, rule, regulation, or order alleged to have been violated.
In addition, the citation shall fix a reasonable time for the
abatement of the violation.

1778

in part as follows:
Other safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with
respect to transportation of men and materials shall be
provided.
That general statement is followed by 11 subsections.
75.1403-1 provides in pertinent part as follows:
§

Subsection

75.1403-1 General criteria.

{a) Section 75.1403-1 through 75.1403-11 set out the
criteria by which an authorized representative of the
secretary will be guided in requiring other safeguards
on a mine-by-mine basis under § 75.1403. Other safeguards
may be required.
{b) The authorized representative of the
secretary shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403 and shall
fix a time in which the operator shall provide and thereafter maintain such safeguard.
If the safeguard is not
provided within the time fixed and if it is not maintained
thereafter, a notice shall be issued to the operator
pursuant to section 104 of the Act.
The undisputed evidence establishes that Hanna inspected
respondent's Price River Coal Co. No. 5 Mine on July 18, 1979 and at
that time observed the operation of a scoop-tram without its
batteries being protected by cover plates secured to the battery
tray.
At that time, Hanna issued citation No. 789577 pursuant to
standard 75.1403 as notice to respondent that Hanna was "requiring
that all cover-plates be secured to mobile equipment when such
equipment is being operated." The condition was abated within 40
minutes after issuance of the citation when the cover plates were
secured to the battery trays {Exhibit P-6).
However, upon returning to the mine on July 19, 1979, Hanna
observed that the scoop-tram was once again being operated without
the cover plates being secured to the battery trays.
As a
consequence, Hanna issued citation No. 789961. The condition was
abated within six minutes {Exhibit P-16).
On February 4, 1980, the
Secretary filed a petition for the assessment of a civil penalty
predicated on the issuance of citation No. 789961 for a violation of
Hanna's safety requirement issued pursuant to 30 C.F.R. § 75.1403 •
Respondent duly
. The Secretary proposed a penalty of $305.00.
contested the proposed assessment of penalty.
Respondent does not deny continued operation of its scoop-tram
without having secured the battery cover plates, despite having been
provided with notice in citation No. 789577 that such condition was
considered by Hanna to be a safety violation.
Respondent does how-

1779

ever contend that citation No. 789961 is invalid due to lack of
long-term notice regarding the requirement that the battery covers be
secured when operating the machine in the mine from the area of the
portal to the first open crosscut.
Respondent claims that neither
Hanna nor any other inspectors had required such a practice before
the issuance of the citation presently contested.
In contrast, Hanna
testified that during previous inspections of the mine, he must not
have observed the condition or he would have issued the same safety
requirement (Tr. 334).
Upon reviewing such arguments, I find respondent's claim to be
unsupported by case law. Generally, an operator's reliance on prior
inspections does not estop the Secretary from bringing an action on
newly discovered safety violations. Midwest Minerals, Inc., 3 FMSHRC
251 (January 198l)(ALJ); Missouri Gravel Co., 3 FMSHRC 1465 (June
198l)(ALJ); Servtex Materiala Company, 5 FMSHRC 1359 (July 1983)
(ALJ).
I therefore conclude that the failure of previous inspections
to result in the issuance of a citation for the safety violation
charged in this case does not indicate that citation No. 789961 is
automatically invalid.
Respondent further contends that the citation is invalid because
operating the scoop-tram in the area between the mine portal and the
first open crosscut without having the battery cover plates secured
did not constitute a safety hazard.
such an area of the mine is
claimed b~ respondent to be a "significant safety a~ea" (respondent's
brief at 2).
In contrast, Hanna testified that the unprotected
battery could be damaged by a roof fall or collision while operating
in the area.
Should the battery be damaged, battery acid might burn
the unshielded machine operator.
In addition, the batteries might
burn, releasing toxic fumes and seriously or fatally injuring miners
(Tr. 326, 327).
Hanna also noted that in the event that the scoop-tram should
have a wreck while going down the steep incline from the portal into
the mine, the unsecured covers could become flying objects causing
broken bones or fatal injury (Tr. 325, 327).
I find Hanna's testimony of the hazard involved in operating the
scoop-tram without secured battery covers to be convincing.
I
therefore reject respondent's contention that citation No. 789961 is
invalid due to lack of a safety hazard.
Respondent also argued that the citation was invalid because an
MSHA inspector cannot write specific mandatory requirements under
standard 75.1403 and issue a citation for violation of such a
requirement, but can write citations only for violations of standards
specifically stated in subsections 75.1403-2 through 75.1403-11.
In
contrast, the secretary asserts that both statutory construction and
case law support the position that an MSHA inspector can write a

1780

valid, mandatory requirement, and issue a citation for violation of
such a requirement, pursuant to standard 75.1403 (petitioner's brief
at 1).
I accept the Secretary's arguments. Section 75.1403 requires
that an operator provide other safeguards which are adequate to
minimize hazards relating to the transportation of men and materials.
The standard explicitly defers to the judgment of an inspector, as an
authorized representative of the Secretary, as to what other
safeguards may be necessary.
Section 75.1403-l(a) explains the
regulatory scheme for the provision of safeguards.
It states that
75.1403-2 through 75.1403-11 are the criteria which will guide an
inspector on other statutory requirements, but also states that other
safeguards may be required.
I interpret such a statment as giving an
operator notice that safeguards in addition to those specifically
named in 75.1403-2 through 75.1403-11.
Section 75.1403-l(b) states that the inspector must advise an
operator in writing "of a specific safeguard which is required
pursuant to § 75.1403." Such a requirement serves to give an
operator notice that a specific safeguard will be required. Only
after written notice to provide a safeguard has been given may an
inspector issue a citation (or "notice") pursuant to section 104(a)
of the Act.
The MSHA inspector complied with the requirements of standard
75.1403 when he issued citation No. 789577 on July 18, 1979. When he
returned the next day and found that respondent continued to allow
the violative condition, he issued citation No. 789961 pursuant to
section 104(a) of the Act.
Prior decisions of the Commission have upheld such actions taken·
pursuant to standard 75.1403.
In Consolidated Coal Company, 2 FMSHRC
2021 (July 1980)(ALJ), Judge Cook stated as follows:
30 C.F.R. § 75.1403 accords substantial power to a Federal
mine inspector in that it authorized him to write what are,
in effect, mandatory safety standards on a mine-by-mine
basis to minimize hazards with respect to transportation of
men and materials in that mine.
Failure to provide the
safeguard within the time specified and the failure to
maintain the safeguard thereafter renders the mine operator
susceptible to the issuance of a withdrawal order and to the
assessment of civil penalties.
30 C.F.R. § 75.1403-l(b).
In
short, the operator must comply with the requirements of a
de facto mandatory safety standard promulgated without the
protections or the opportunity to submit comments afforded
in the rule making process applicable to the promulgation
of industry wide mandatory safety standards. 2 FMSHRC at
2035.

1781

Furthermore, the Commission has upheld application of a
safeguard notice issued under standard 75.1403-1 to an operator's
mine by affirming an administrative law judge's determination that
the safeguard notice had been violated and that a civil penalty might
appropriately be assessed.
Penn Allegh Coal Company, Inc., 4 FMSHRC
1218 (July ~982):
I therefore conclude, upon consideration of the undisputed
evidence in this case, that respondent violated the safety requirement or notice issued by inspector Hanna pursuant to standard
75.1403.
Ac~ordingly, I affirm citation No. 789961.
PENALTY
Respondent stipulated that the Price River Coal Co. No. 5 Mine
is a large operation and had 223 assessed violations in the 24 months
preceding May 14, 1979.
Payment of a penalty was also stipulated as
not impairing respondent's ability to continue in business.
From the evidence I conclude that respondent was negligent in
allowing the scoop-tram to be operated without having cover plates
secured over the battery.
Since respondent was provided with notice
one day before the citation's issuance that battery cover plates were
required to be secured, it should have known of the hazard and
violation.
On balance, I find the degree of negligence to be
moderate.
Petitioner stipulated to respondent's good ·faith abatement of
the violative condition.
Respondent's good faith is further
indicated by the fact that abatement was completed within twenty
minutes of the citation's issuance.
Finally, I find the gravity of the violation to be moderate.
Although the violation may have resulted in seLious or fatal injury,
the number of miners exposed to the hazard appears to be limited to
the machine operator and any other miners in the immediate vicinity
of the operation of scoop-tram.
After applying the criteria of section llO(i) of the Act to the
facts of the case, I find the penalty proposed to be appropriate.
I
therefore assess a penalty of $305.00 for respondent's violation of a
safety requirement issed pursuant to 30 C.F.R. 75.1403.
CONCLUSIONS OF LAW
Based upon the entire record of these consolidated cases, and
consistent with the narrative portions in this decision, the
following conclusions of law are made:

1782

(1)
The Commission has jurisdiction to hear and decide this
matter.
(2)
Respondent violated 30 C.F.R. § 75.400 as charged in
citation No.
789581.
The violation was "significant and
substaritial" and was the result of an "unwarrantable failure" to
comply with the cited standard.
The appropriate civil penalty for
the violation is $1,000.00.
(3)
Respondent violated 30 C.F.R. § 75.200 as charged in
withdrawal order No. 789596. The violation was "significant and
substantial" and was the result of an "unwarrantable failure" to
comply with the cited standard. The appropriate civil penalty for
the violation is $1,500.00
(4)
Respondent violated a safety no~ice or requirement issued
pursuant to 30 C.F.R. § 75.1403 as charged in citation No. 789961.
The appropriate civil penalty for the violation is $305.00.
ORDER
1.
In Docket No. WEST 80-83, Citation No. 789581 and
order/citation No. 789596 are affirmed and civil penalties of $1,000
and $1,500 respectively are assessed against the respondent.
2.
In Docket No. WEST 80-135, Citation No. 789961 is affirmed
and a civil penalty of $305 is assessed against the respondent.
Respondent is therefore ORDERED to pay civil penalties in the
total sum of $2,805.00 within forty (40) days of the date of this
decision.

C .'::> ~
~z~1-r:,-f._,, ?; ~d-<:;_e

·'---,,..-

~

I

Virgif' E. Vail
Administrative Law Judge
Distribution:
Phyllis K. Caldwell, Esq., (Certified Mail), Office of the Solicitor

u. s. Department of Labor, 1585 Federal Building, 1961 Stout Street
Denver, Colorado

80294

Stanley v. Litizzette, Esq., (Certified Mail), Price River Coal Co.
Helper, Utah

/blc

1783

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

October 11, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-57-M
A.C. No. 20-00801-05501
Nugent Sand Mine

NUGENT SAND COMPANY, INC.,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
On August 8, 1983, I approved settlements for three of
the six violations involved in this matter and I ordered the
Solicitor to submit additional evidence with respect to the
remaining three. On August 31, 1983, I issued a further
order to the Solicitor to submit information. Such information now has been submitted.
After a review of the Solicitor's latest motion, I am
to approve the proposed settlements of $20 each.
According to the Solicitor Citation 2088974, which was
issued for failure to have a fire extinguisher on a frontend loader, involved a moderate degree of negligence because
the employer was aware that a fire extinguisher was required.
This factor alone would militate against a $20 penalty.
With respect to gravity the Solicitor states as follows: "An
injury would have been unlikely because if a fire were to
occur, the employee could jump out of the front-end loader."
The Solicitor further states in this respect "The type of an
injury, if one were to occur, would not have resulted in any
lost workdays. The type of injury contemplated would be
sprains or cuts from jumping off the front-end loader."
unabl~

I must reject the Solicitor's representations. The
fact that the violation might force an individual to jump
out of the front-end loader is to me on its face a very
serious matter. There is no support for the Solicitor's
assertion that the type of injury contemplated would be
only a sprain or cuts.
I have no alternative, therefore, but to take appropriate action to have this item set for hearing.

With respect to Citations 2088975 and 2088976 which
involve failure to guard a take-up pulley and a head pulley,
the Solicitor again states that the operator was guilty of a
moderate degree of negligence because it was aware that
pinch points must be guarded. Such a degree of negligence
militates against a $20 penalty. Moreover, I am unable to
accept the Solicitor's assertion there was no likelihood of
injury because employees seldom travel in the area. Nor am
I able to accept his representation that' the type of injury
would not be in the form of a hand amputation but rather
only in the form of a cut or a bruise when performing only
maintenance duties. It may be that although the conveyor is
supposed to be idle when maintenance is performed, it might
be started up accidentally and the resultant injury could be
very serious indeed. These matters should be resolved at a
hearing.
Accordingly; I have no alternative, therefore, but to
take appropriate action to have these items set for hearing.
This case is hereby assigned to Administrative Law
Judge James A. Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, u. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604
(Certified Mail)
Mr. Robert Chandonnet, Vice President, The Nugent Sand
Company, Inc., P. 0. Box 1209, Muskegon, MI 49443
(Certified Mail)

/ln

1785

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

October 11, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-80-M
A.C. No. 20-00038-05504

v.
Medusa Cement Company
Plant

MEDUSA CEMENT COMPANY,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
On August 31, 1983, I disapproved the Solicitor's
motion to approve a settlement for the one violation in this
case for the original assessment of $56.
I described the
circumstances as follows:
Citation No. 2089073 was issued for a
violation of 30 C.F.R. § 56.16-6 because the
covers on oxygen and acetylene cylinders
being transported were not in place to protect the stems of the cylinders. The Solicitor
states that the operator demonstrated no
negligence but he gives no basis for this
assertion. The Solicitor further states that
the violation was significant and substantial
but again he gives no reasons.
I note that
the inspector stated on the citation that
falling materials from the conveyors could
easily strike one of the stems and create a
serious hazard. The inspector checked boxes
indicating occurrence was reasonably likely
and could reasonably be expected to result in
lost workdays or restricted duty.
The Solicitor now has filed an amended motion in which
he advises that the operator demonstrated no negligence
because it was not aware of the violation.
I cannot accept
this representation. Even if the operator was not actually
aware of the violation the possibility that it should have
been aware, must be explored.

1786

With respect to gravity the Solicitor now states as
follows:
(b)
If an event occurred to which the cited
standard is directed then it was reasonably
likely that one employee would be injured.
The reason is that a cylinder without proper
protection could become a "torpedo", thereby
injuring an employee.
(c)
The type of injury that would result is
that an employee could lose a day or more of
work or be restricted in his job duties.
The
reason is that a cylinder acting with the
force of a "torpedo" is a serious hazard
which would cause serious injury to an employee.
When the Solicitor paints a picture of potential grievous
bodily harm, as he has done here, I do not believe a penalty
of $56 is appropriate unless some other compelling circumstances are present.
Moreover, the Solicitor has advised that Crane Company
which owns Medusa Cement Company had 1,768,760 hours worked
in all of its mines prior to the issuance of this citation
and the Medusa Cement Company had 239,900 hours worked in
the same period. The proposed penalty therefore, is inconsistent with the operator's size in light of the other
circumstances already set forth.
Accordingly, I have no alternative but to take appropriate action to have this matter set for hearing.
This case is hereby assigned to Administrative Law
Judge James A. Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Off ice of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Paul Merlin
Chief Administrative Law Judge
/ln

1787

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

OCT 111983
SECRETAR¥ OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 82-300
A.C. No. 36-03425-03501

v.
U.S. STEEL MINING COMPANY, INC.,
Respondent

Docket No. PENN 83-44
A.C. No. 36-03425-03506
Docket No. PENN 82-322
A.C. No. 36-03425-03504
Maple Creek No. 2 Mine

DECISION
Appearances:

Thomas A. Brown, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The above dockets were heard separately but are hereby consolidated for the purpose of this decision. They all involve the
Maple Creek No. 2 Mine. Two citations are involved in Docket No.
PENN 82-300, two in PENN 83-44, and four in PENN 82-322. Pursuant
to notice, the cases were heard in Uniontown, Pennsylvania, on
June 22 and June 23, 1983. Alvin L. Shade and Francis E. Wehr, Sr ..
testified on behalf of Petitioner; David Coffman, Ronald Hartzell
and Paul H~ Shipley testified on behalf of Respondent. Both parties
filed posthearing briefs. Based on the entire record and considering the contentions of the parties, I make the following decision.
FINDINGS AND CONCLUSIONS COMMON TO ALL DOCKETS
1. At all times pertinent to these proceedings, Respondent was
the owner and operator of an underground coal mine in Washington
County, Pennsylvania, known as the Maple Creek No. 2 Mine.

1788

2. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the Maple
Creek No. 2 Mine, and the undersigned Administrative Law Judge
has jurisdiction over the parties and subject matter of these
proceedings.
3. The subject mine has an annual production of 872,848 tons
of coal. Respondent has an annual production of 15,046,082 tons.
Respondent is a large operator.
4. The assessment of civil penalties in these proceedings
will not affect Respondent's ability to continue in business.
5. The subject mine had a total of 530 assessed violations
for the 24 months prior to the issuance of the citations involved
herein. Ninety one were violations of 30 C.F.R. § 75.503, 20 of
75.516, 72 of 75.200, 11 of 75.515 and 47 of 75.1403. An unknown
number of the violations of 75.516 had the significant and substantial designation removed after their issuance, and Respondent
objects to their being included in the history of prior violations.
6.
In the case of each citation involved herein, the violation was abated promptly and in good faith.

7. Whether a cited violation is properly designated as a
significant and substantial violation is per se irrelevant to a
determination of the appropriate penalty to be-assessed. The
penalties hereinafter assessed are based on the criteria in
section llO(i) of the Act.
DOCKET NO. PENN 82-300
The two citations involved in this docket both charge permissibility violations (30 C.F.R. § 75.503).
In one case, the conduit
was pulled away from the packing gland on the headlight to the
continuous mining machine and the junction box was loose. In the
other, the conduit was pulled away from the packing gland on the
switch for the deenergizing bar. Both citations were issued charging significant and substantial violations, but at the hearing,
counsel for the Secretary moved to delete the significant and
substantial.designation from both citations. No bare wires were
seen, but if the wire is pulled from the conduit, it could be struck
or cut to create a spark. However, the headlight is guarded and
such an occurrence is unlikely. The same is true of the conduit on
the deenergizing bar. The violations were not serious. Respondent
has been cited for this violation on a number of occasions. Therefore, I conclude that the violations resulted from its negligence.
I conclude that an appropriate penalty for each of these violations
is $50.

1788

DOCKET NO. PENN 83-44
1. Citation No. 2011263, issued August 20, 1982, charges a
violation of 30 C.F.R. § 75.516 because the energized wire to a
signal light was not supported on insulators, but in one instance
was hung on a wire nail and was in contact with wooden cribs.
It
appears that the nail had been part of an insulated hook from
which the insulation had been broken off or had worn off.
The
wire was not bare or damaged.
The mine was idle and had been idle
for about 2 months when the citation was issued. The system is
protected by a 10 ampere fuse.
I conclude that the violation was
unlikely to cause an injury. Therefore, it was not significant
and substantial.
Respondent had been cited for this same condition previously, and should have been aware of it.
I conclude
that an appropriate penalty for this violation is $50.
2.
Citation No. 2011267, issued September 9, 1982, charges
a violation of 30 C.F.R. § 75.504 because the conduit was pulled
out of the packing gland on the continuous miner headlight.
The
citation originally charged a significant and substantial violation, but at the hearing, Petitioner moved to delete the significant and substantial designation.
The inspector testified that
a hazard was unlikely.
I conclude that the violation was not
serious.
Respondent has been cited for this violation on many
occasions and therefore, I conclude that the violation resulted
from its negligence.
I conclude that an appropriate penalty for
this violation is $50.
DOCKET NO. PENN 82-322
1. Citation No. 829652, issued June 18, 1982, charges a
violation of 30 C.F.R. § 75.200, in that two roof bolts were missing in an area along the track haulage.
The bolts had been
installed but apparently had fallen out of the roof.
There was
a slip in the roof and the roof was loose and drummy.
The roof
bolts were not on the floor when the citation was issued, leading
to the conclusion that they might have been out for a period of
time.
The inspector testified that one missing bolt was on the
"tight" side over the trolley wire and the other over the center
of the track.
The section foreman testified that both had been
located on ~he tigh.t side.
In any event, there was an area of
unsupported roof, making a roof fall reasonably likely. Such an
occurrence would likely result in serious injuries to miners.
I
conclude that the violation was significant and substantial. The
condition should have been known to Respondent despite the fact
that it is permitted to do the preshift examination by jeep which
makes it difficult to spot all the roof areas.
Therefore, the
violation was caused by Respondent's negligence.
I conclude that
an appropriate penalty for this violation is $200.

1790

2. Citation No. 829653, issued June 18, 1982, charges a
violation of 30 C.F.R. § 75.515, in that an insulated bushing was
not provided where the insulated wires entered the control box
for a water pump.
The insulation on the wires was not broken or
damaged.
The water pump's electrical system was protected by
two fuses - one a 30 amp fuse on the cable, and one a 10-30 amp
control fuse inside the box. When it is operating, the pump
vibrates, and the vibration could cause a cut in the insulation of
the wire in the absence of bushing.
This could result in the pump
to become the ground and, if the circuit protection failed, anyone
touching the pump could be shocked or electrocuted.
I conclude
that the violation made such an occurrence reasonably likely.
Therefore, i t was significant and substantial.
Respondent had
been cited several times for similar v.i-GY1ations.
I conclude that
this violation was the result of its negligence.
I conclude that
an appropriate penalty for this violation is $125.
3. Citation Nos. 829654 and 829656 were issued on June 18
and June 21, 1982. Each charges a violation of 30 C.F.R. § 75.1403
(notice to provide safeguards) because track haulage switches were
not provided with reflectors to show the alignment of the switch.
The hazard caused by the absence of a reflector on a switch
is that the operator of a haulage vehicle might mistake the position of the switch, and by going in the "wrong" direction, jostle
the occupants in the vehicle or derail the vehicle. Because
low-speed haulage equipment was in use in the subject mine, the
injuries would not be nearly as serious as would be the case where
high speed haulage equipment was involved.
This limits the weight
to be accorded Government's Exhibit No. 6, the Report of a Fatal
Coal Mine (Haulage) Accident, which involved high speed haulage.
Nevertheless, a derailment could result in injuries of a reasonably
serious nature.
I conclude that the violations were significant
and substantial.
They were moderately serious, and the condition
was known or should have been known to Respondent.
I conclude that
appropriate penalties for each of these violations is $100.
ORDER
1. Citation Nps. 1249544, 1249549, 2011263, and 2011267
charge violations not properly designated as significant and
substantial.
2.
Citation Nos. 829652, 829653, 829654, and 829656 are
AFFIRMED as properly charging significant and substantial
violations.

1791

3.
Respondent shall, within 30 days of the date of this
decision, pay the following penalties for the violations found
herein to have occurred:
CITATION

PENALTY

1249544
1249548
2011263
2011267
829652
829653
829654
829656

$ 50
50
50
50
200
125
100
100
$725

Total

~µ§n;~

J

James A. Broderick
Administrative Law Judge

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

1792

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

LITTLE SANDY COAL SALES, INC.
Contestant

OCT 1219fB

NOTICE OF CONTEST
Docket No: KENT 83-178-R
Order No: 2053590; 3/18/83

. v.

No. 1 Tipple
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent
DECISION
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, Va, for Respondent;

Before:

Judge Moore

This case was set for hearing in Pikeville, Kentucky, on
September 8, 1983, at 10:00 A.M. After arriving in the Pikeville
area on September 7, I received a call from my secretary stating
that Mr. Everman, owner of Little Sandy Coal Sales, Inc. the
contestant, was ill and could not attend the hearing on the following day. Mr. Everman left two numbers at which he could be reached.
One was his office number and the other was his home number, and
he announced to my secretary that he would be at the home number
after 4:00 P.M.
On the following day, after several inspectors, the
Solicitor's attorney, and I had arrived at the hearing site
and waited until twenty minutes after 10:00 A.M. for Mr. Everman
to appear, I called my secretary and asked her to get in touch
with Mr. Everman. My secretary called Mr. Everman's office and
was informed that he was not there at the time but was expected.
She then called Mr. Everman's home and let the phone ring 9
times; there was no answer.
Mr. Everman had requested an expedited hearing in this
case and it appeared that Mr. Fitch and the inspectors had
tried to accommodate Mr.Everman in reaching a speedy determination as to whether his operation was a mine, subject to
the Federal Mine Safety and Health Act. In fact, the inspectors
have extended the abatement time of other citations so that
Mr. Everman will not have to litigate those citations until
a determination has been made as to the legal status of his
operation. I think Mr. Everman owed the government a little
more than a last-minute call to my office saying that he
was too sick to attend the hearing.

1793

At the hearing I did not hold Mr. Everman in total default
but did rule that by his failure to appear he had waived his
right to cross-examine the government witnesses. I announced
that I would communicate with Mr. Everman after the trial
to determine whether or not he had good reason to be absent.
The government was then allowed to elicit testimony and
exhibits from a supervisory inspector. The inspector identified the ~xhibits and described the Little Sandy Coal Sales
operation. In short, the company buys raw coal, puts it
through a crusher, refines it by screen into 3 sizes and
then sells the coal. I asked the inspector how this operation
differed from that of a normal tipple. His answer was that
in the typical tipple which is not located at a mine itself,
the tipple operator does not own the coal. He crushes and
sizes somebody else's coal, whereas Mr. Everman buys the
coal, processes it and then sells it.
Mr. Everman telephoned me as soon as I got back to our
Virginia office and apologized for not attending the hearing.
He said he would get a doctor's certificate showing that he
was too ill to participate in the hearing. I told him that
if he would send me that doctor's certificate I would allow
him to submit further evidence but that I would not reconvene the hearing to allow him to cross-examine the MSHA
inspector.
He said that he would like to submit some
material but that he would like to look at the transcript
first. I then transferred the call to my secretary, who
gave him the necessary information concerning the court
reporter.
Whether Mr. Everman changed his mind about the copy of
the transcript or managed to get one before one was delivered
to this office, I don't know. But he did submit a substantial amount of information (similar to a brief) on
September 26, 1983. Attached was a note from Dr. Shufflebarger
which said "Mr. Everman was unable to attend due to illness."
In the circumstances, I hold the excuse insufficient to justify
Mr. Everman's failure to appear at the hearing. The note
does not say what was wrong with Mr. Everman, or how ill he
was. And he was well enough to be in his office. I will
neverthel·ess, consider the material he submitted.
In the handwritten portion of his submission, Mr. Everman
makes a number of important points. He compares his operation
to that of the Allied Chemical plant in Ashland, Kentucky,
which is considered by MSHA as a coke manufacturing plant
and not a mine. The plant receives coal by rail, grinds it
to the proper size to make coke to be shipped to various
customers. At his plant, Mr •. Everman says, he takes coal
"and manufactures stoker" •

. 1794

He also points out that his operation is considered manufacturing by the State of Kentucky fn regard to sales tax and
workmen's compensation insurance and that he is not considered
a mine by the federal Off ice of Surface Mining or the Kentucky
Department of Surface Mining. His most telling argument however, involves the case of Secretary of Labor vs. Oliver M.
Elam, Jr. Company, 4 FMSHRC 5, (January 7, 1982). Elam's
operation is quite similar to that of Little Sandy. Elam
got paid for loading coal that it did not own on to barges that
it did not own.
Some coal was loaded directly on to the barges
by conveyor belts, but other pieces of coal were too big and
had to be run through a cru$her in order to fit on the covered
conveyor belts. Little Sandy, on the other hand, owns the coal
it processes, and the crushing, sizing and loading is to make
the coal marketable and not just so that it will fit his
conveyors.
It is a small difference but it is enough.
Secretary of Labor v. Alexander Brothers, Inc. 4 FMSHRC 541
(April 5, 1982).
I sympathize with Mr. Everman.
I hope this decision does
not put him out of business as he claims it will, and I hope
he takes an appeal to the Commission for a final determination.
I reject all of Mr. Everman's arguments to the effect that
the facts, as related by him, as well as by the inspector, indicate that he is not a mine operator.
I find that the violation
occurred, that the operation is covered by the Federal Mine
Safety and Health Act, and I accordingly AFFIRM the citation
for failure to have sanitary toilet facilities.

~-(jM~o~~I,~'

Administrative Law Judge
Distribution:

Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

Mr. Edgar Everman, Little Sandy Coal Sales, Inc., P.O.Box
335, Grayson, KY •41143 (Certified Mail)

/db

1795

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

OCT 12 1918

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-1-M
MSHA Case No. 42-01689-05003 X02

Petitioner

v.
LaSal No. 2 Mine
AMERICAN MINE SERVICES, INC.,
Respondent
AMENDMENT OF DF.CISlON
The decision issued in the above captioned matter on
September 30, 1983, is hereby AMENDED to reflect that the civil
penalty assessed for citation 583964 is "$78.00" rather than
"$87.00." Likewise, on page six of the decision, all references
to a penalty sum of "$87.00" are AMENDED to reflect "$78.00."
In all other respects, the decision remains the same.

John A. Carlson
Administrative Law Judge
Distribution:
James H. Barkley, Esq., (Certified Mail),
Office of the Solicitor,
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
Mr. Morris E. Friberg, (Certified Mail),
American Mine Services, Inc.
4705 Paris Street, Denver, Colorado 80239
/ot

179G

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

EDWIN WEBBER,

OCT 131983

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 82-195-DM

v.
HARRISON WESTERN CORP.,
Respondent
DECISION
Appearances:

Terris & Sunderland, Washington, D.C.,
Attorneys for Complainant;
Dennis J. Conroy, Esq., Watkiss & Campbell,
Salt Lake City, Utah, for Respondent.

Before:

Judge Kennedy

This matter came on for an evidentiary hearing in Salt
Lake City, Utah in May 1983. After trial and entry of a
tentative bench decision in favor of complainant, the parties
moved for approval of a stipulation for settlement. 1/
Based on a consideration of the circumstances set forth in
the trial record, the tentative decision and the parties
stipulation, I find the settlement proposed is in the best
interest of complainant and in accord with the remedial
purposes of the Act.
Accordingly, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED.
It is FURTHER ORDERED
that the operator forthwith pay the sum of $22,000 to complainant,
Edwin K. Webber, and that subject to payment the captioned
matter be DISMISSED.

1/ Because the complainant appeared at the trial pro se,
the presiding judge assumed responsibility for fully developing
the record.
See Heckler v. Campbell,
U.S.
, 51 L.W.
4561; 4564, n. 1, 76 L. Ed. 2d 66, 77,-n: l; LaShley v.
Secretary of Health and Human Services, 708 F.2d 1048, 10511052 (6th Cir. 1983). Subsequent to trial, the complainant
obtained the pro bono services of counsel who filed a brief
in support of the tentative decision and negotiated the
settlement.

1797

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

OCT 14 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-137
A.C. No. 15-11408-03510

v.
Pride Mine
PYRO MINING COMPANY,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
William M. Craft, Assistant Director of
Safety, Pyro Mining Company, Sturgis,
Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment
of civil penalty under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.,
the "Act," in which the Secretary charges the Pyro Mining
Company CPyro) with three violations of mandatory regulations. The general issues before me are whether Pyro has
violated the regulatory standards as alleged in the petition and, if so, the appropriate civil penalty to be
assessed for the violations.
CITATION NO. 2074459 At hearing, the Secretary moved to
amend its petition by seeking to withdraw this citation
for lack of evidence. The Secretary now concedes that the
cited explosives in fact had not been stored in the working place as alleged. Under the circumstances there
appears-to have been no violation of the cited standard
and the motion for amendment and withdrawal is granted.
Commission Rule 11, 29 C.F.R. § 2700.11.
CITATION NO. 2074458 This citation, issued by MSHA Inspector Ronald Oglesby pursuant to section 104Ca) of the Act,
initially alleged a violation of the standard at 30 C.F.R.
§ 75.523.
The standard which tracks the enabling language
at 30 u.s.c. § 865(r), provides that "[a]n authorized

1798

representative of the Secretary may require in any mine
that electric face equipment be provided with devices that
will permit the equipment to be deenergized quickly in the
event o·f an emergency." The citation alleges as follows:
"A violation was observed on No. 1 unit, section ID003 in
that the FMC roof bolter Cleft side of section) would not
deenergize when actuating lever was pushed. The lever was
damaged to the extent, part of lever bar was broken off."
The citation clearly does not charge a violation of
the cited regulation and, indeed, it is difficult to conceive of any factual circumstance that would constitute a
violation of the regulation. As explained by Inspector
Oglesby at hearing, the reference in the citation to the
standard at 30 C.F.R § 523 was erroneous and he meant to
charge a violation under the standard at 30 C.F.R.
§ 75.523-2Cb).
The Secretary declined, however, to amend
the citation to comport with this intent. The undersigned
therefore issued on July 29, 1983, a notice of intent to
modify the citation pursuant to section 105Cd) of the Act
to charge that the standard violated was 30 C.F.R
§ 75.523-2Cb) and not 30 C.F.R. § 75.523.
See also Rule
15Cb) Federal Rules of Civil Procedure and United States
v. Stephen Brothers Line, 384 F.2d 118, 124 {5th cir.
1967). In accordance with the notification to the parties
of this intended action, the parties were given additional
opportunity for hearing and/or to present additional evidence.
International Harvester Credit Corp. v. East Coast
Truck, 547 F.2d 888 {5th Cir. 1977).
The operator did in fact submit additional evidence
and argument by letter dated August 1, 1983. The
Secretary declined to submit any additional evidence and
indicated that he had no objection to either the proffered
evidence or to the action contemplated by the undersigned
judge. Accordingly, at this time Citation No. 2074458 is
modified to reflect that it charges a v~olation of the
standard at 30 C.F.R. § 75.523-2{b). Secretary v.
Consolidation Coal Company, 4 FMSHRC 1791 (1982).
The standard at 30 C.F.R. § 75.523-2Cb> provides that
"[t]he existing emergency stop switch or additional switch
assembly shall be actuated by a bar or lever which shall
extend a sufficient distance in each direction to permit
quick deenerization of the tramming motors of self-propelled
electric face equipment from all locations from which the
equipment can be operated."

1799

The facts relating to this citation are not in dispute.
It is only the interpre~ation to be placed upon those facts
that is a~ issue. During the course of an inspection of the
Pride Mine on October 27, 1982, MSHA Inspector Ronald
Oglesby observed the "FMC" roof bolter operating in the
No. 1 unit, section ID003 with a broken panic bar. Although
the roof bolter was not then operating inby the last open
crosscut, it is not disputed that it could have been so
opera'ted.
Pyro does not disagree that the panic bar on the roof
bolter was broken as alleged but argues that the cited
roof bolter was not "electric face equipment" within the
meaning of the MSHA Electrical Manual. The manual defines
"electric face equipment" as electrical equipment that is
"installed, taken into, or used in or inby the last open
crosscut." The definitions found in the MSHA manuals are
not officially promulgated, however, and are not binding
upon the Commission or its judges, Secretary v. King Knob
Coal Company, Inc., 3 FMSHRC 1417 (1981), Old Ben Coal
Company, 2 FMSHRC 2806 (1980). In any event even under
the definition of "electric face equipment" found in the
cited MSHA Manual there would nevertheless have been a
violation of the cited standard in this case. The uncontradicted testimony of Inspector Oglesby was that, when
cited, the roof bolter was located in the last open
crosscut.
I also note that in the case of Secretary v. Solar
Fuel Company, 3 FMSHRC 1384 Cl981), the Commission held
that "equipment which is taken or used inby the last open
crosscut" means equipment habitually used or intended for
use inby regardless of whether it is located inby or outby
when inspected. The Commission emphasized in Solar Fuel
that it is not where the equipment is located at the time
of inspection that is important, but whether it is equipment which can be taken or used "inby.
Accordingly,
since the roof bolter here cited is without question equipment that can be taken or used inby the last open crosscut
it is clear that the violation is proven as charged in the
amended·citation.l Whether that violation was "significant
and substantial," however, depends on whether, based on the
11

:

1 The operator also contends in a letter dated August 1,
1983, that the Secretary failed to prove the degree of
pressure applied to the cited panic bar and the distance
the bar was moved in accordance with 30 C.F.R. § 75.523-2Cc).
The alleged deficiency is irrelevant, however, inasmuch as
no violation of 30 C.F.R. § 75.523-2Cc> has been alleged.

1800

particulars surrounding the violation, there existed a reasonable likelihood that the hazard con~ributed to would have
resulted in an injury of a reasonably serious nature.
Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC
822 (1981). The test essentially involves two considerations, Cl) the probability of resulting injury, and (2) the
seriousness of the resulting injury. I accept the undisputed testimony of Inspector Oglesby concerning this issue.
In particular, he testified that in the absence of a functioning "panic bar" a machine operator or other person could
be pushed and pinned against the coal ribs and, if unable to
actuate the panic bar, could easily be crushed. Oglesby
testified about past incidents of crushed legs and fatalities resulting from such a defect.
Indeed there had been
four accidents since 1978 at the Pyro Mines alone involving
equipment pushing miners into the ribs, resulting in crushed
lower extremeties, broken bones and, in one case, permanent
disability. The violation was accordingly "significant and
substantial." For the same reasons the violation was one of
high gravity.
Donald Lamb, an official of Pyro admittedly knew that
operative panic bars were required on his roof bolters and
acknowledged that the operator had been cited previously
for similar problems with the panic bars. The operator
accordingly should have been on particular notice of this
recurring problem and may be charged under the circumstances
with negligence in failing to discover the broken panic bar.
CITATION NO. 2075863 This citation alleges a violation of
the operator's roof control plan under the standard at
30 C.F.R. § 75.200 and reads as follows:
The roof control plan dated 8/10/82 was
not being followed on No. 3 unit CID004) in
that a three way place was observed. The
first cut had been taken out of right and
left crosscuts and face also had been cut and
loaded. Cuts 1 and 2 were extracted and roof
had not been supported before the face was
extracted. Plan states (page 16) that 1 and
2 are to be bolted before the face areas cut
and loaded. Roof bolter was in area at time
of inspection pinning No. 2 crosscut.
The cited portion of the roof control plan consists
of a diagram <attached hereto as Appendix A) with an
explanation reading as follows:
"Cuts No. 1 and No. 2
will be extracted and the roof supported, then on the next

1801

mining cycle, cuts No. 3, 4 and 5 will be taken in a
normal manner, etc. The face will be driven no more than
30 feet from the inby rib of crosscut until crosscut is
holed through and ventilation is established."
The citation was issued on December 14, 1982, by MSHA
Inspector Jerrold Pyles. During the course of his inspection on that date, Pyles observed that three cuts had been
taken on the No. 3 unit. The right and left crosscuts and
the face had all been cut to a depth of 9 feet and loaded
out. The cuts had not yet been bolted although a roof
bolter was beginning to bolt the No. 2 crosscut. Since
this evidence is not disputed it is apparent that the roof
control plan has been violated as alleged. The operator
nevertheless argues that a violation of the roof control
plan would exist only if miners are actually working inby
unsupported roof.
I find nothing in the plan to support
the defense and accordingly reject it.
I further find that the violation was "significant
and substantial". National Gypsum,' supra. According to
the uncontradicted testimony of Inspector Pyles, there had
been a history of roof falls at the Pride No. 6 Mine and
that the stability of the cited unsupported roof was
"unpredictable." Moreover, there had previously been six
roof falls in the same general area of the mine. Two
miners were working on the roof bolter in the vicinity of
the unsupported roof at the time the condition was discovered and would have been the most likely victims of any
roof fall.
Serious and fatal injuries would be likely if
the roof did in fact fall.
The violation was accordingly
"significant and substantial" and of a high level of gravity.
According to the undisputed testimony of Inspector
Pyles, it is the industry practice for the section foreman
to run the sites for center lines and tQ mark the width of
places to be cut before the cut is actually made. The
cutting machine operator indeed would not have the authority to proceed with his work until such directions were
given by the section foreman.
It may therefore reasonably
be inferred that an agent of the operator, the section
foreman, knowingly directed the commission of the violation.
In determining the appropriate civil penalty for the
violations within the framework of section llOCi> of the
Act, I am also considering that the operator is medium to
small in size and that it has a fairly substantial history
of violations including previous violations of the standards
cited herein.

1802

ORDER
Citation No. 2074459 is vacated. Citation No.
2074458 is affirmed and a penalty of $300 is assessed.
Citation No. 2075863 is affirmed and a penalty of $500 is
assessed. The penalties herein shall be paid, within
30 days of the date of this decision.

'
Gary Me ick
,
Assistant Chie'
Distribution:
~

Carole M. Fernandez, Esq., Office f the S licitor, U.S.
Department of Labor, 280 U.S. Cou house, 801 Broadway,
Nashville, TN 37203 CCertif ied Mai )
William M. Craft, Assistant Director of Safety, Pyro
Mining Company, P.O. Box 267, Sturgis, KY 42459 (Certified
Mail)

/fb

1803

APPENDIX A
Cut Pattern l'or
ConvcuLion.:il

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ro

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Cuts 01 i 2 will be extracted a~d the roof sup?ortcd, then on the ncx: ~inin&
cycle, cuts f!3, 4 l.. 5 will be c;:ikcn jn a non::;:il 111.Jnncr, cLc. The f.:icc \JEl
be driven no r.:ore th;ia 30' f ror.1 th~~ in!>y rib of crozzcut until cro!;:;cut iz
holed throuch ;:incl vcntilntiun cst:iblizllcd.

180t1

• I

lI

I
I

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

October 14, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-74-M
A.C. No. 20-02514-05501

v.
MEDUSA CEMENT COMPANY,
Respondent

Medusa Cement Company
(Plant)

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the eleven violations in this case for the original
assessments total of $326.
Six of the violations were originally assessed for $20
apiece.
The Solicitor advises that one of these violations
involved no negligence, three involved a low degree of
negligence and one involved a moderate degree. The Solicitor
also represents that in two of these violations there was no
likelihood of an injury and in three the occurrence of an
injury was unlikely. He notes that abatement was accomplished in each instance. However, the Solicitor gives no
basis for any of his assertions regarding negligence and
gravity.
In one instance, Citation No. 2088996, he makes no
representations at all regarding negligence and gravity.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
-is
-recently recognized that it
not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the

1805

Commission would be nothing but a rubber stamp for the
Secretary. The mere recitation by the Solicitor of bare
conclusions is not a sufficient basis upon which I can
predicate settlement approvals of $20 apiece. Of course, as
I previously have held the Commission is not bound by 30
C.F.R. § 100.4 which is the basis of the six $20 "single
penalty assessments."
The five remaining violations were assessed for amounts
ranging from $30 to $68. The Solicitor advises that two of
these violations involved no negligence and three involved a
low degree of negligence.
The Solicitor also states that
each of these violations was significant and substantial.
He notes that abatement was accomplished in each instance.
The Solicitor gives no basis for his assertions regarding
negligence or the significant and substantial nature of
these violations.
The inspector has checked boxes concerning negligence and gravity for all five violations.
I have recently held in many other cases that the term
"significant and substantial" is irrelevant in a penalty
proceeding before the Commission.
Under section llO(i) the
relevant criterion is gravity. But as I also have previously
stated, I cannot base a settlement approval upon an inspector's checks in boxes on a form without some explanation
from the Solicitor.
In absence of other evidence penalty
amounts of $30 or $39 as recommended in some of these cases
would appear low.
The Solicitor has told me nothing about
size, prior history, or ability to continue in business.
In another case involving this operator (LAKE 83-80-M)
I disapproved a similarly inadequate settlement motion from
this Solicitor and ordered him to submit additional information. However, the additional information he submitted
still did not support approval of the proffered settlement
and I therefore, assigned the case for hearing. Assignment
of this case also appears to be the most expeditious manner
of proceeding. See also LAKE 83-75-M, LAKE 83-77-M and
LAKE 83-81-M.
Accordingly, the settlement motion is Denied and this
case is assigned to Administrative Law Judge James A.
Broderick.

1806

All futµre communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

:
Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Eighth Floor,
Chicago, IL .60604
(Certified Mail)
Mr. Thomas Thimm, Plant Manager, Medusa Cement Company,
Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720
(Certified Mail)

/ln

1807

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

October 14, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
MEDUSA CEMENT COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-75-M
A.C. No. 20-00038-05501
Medusa Cement Company
(Plant)

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the twenty violations in this case for the original
assessments total of $1,341.
Six of the violations were originally assessed for $20
apiece. The Solicitor advises that one of these violations
involved a moderate degree of negligence and five involved a
low degree. The Solicitor also states that in each violation
the occurrence of an injury would have been unlikely.· He
notes that abatement was accomplished in each instance.
However, the Solicitor gives no information to support his
representation5 regarding negligence and gravity.
The Act makes very clear that penalty proceedings
before the Commission are de nova.
The Commission itself
recently recognized that i~is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty to
be assessed is a de nova determination based upon the six
statutory criteriEispecified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding.
Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
Of course, the Commission is not bound by 30
C.F.R. § 100.4 which was the basis of six $20 ''single
penalty assessments."

1806

The fourteen remaining violations were assessed for
amounts ranging from $39 to $136. The Solicitor advises
that four of these violations involved no negligence and ten
involved a low degree of negligence. The Solicitor also
states that each of these violations was significant and
substantial. H~ notes that abatement was accomplished in
each instance. - Here again, the Solicitor gives no information to support his conclusions regarding negligence or
gravity.
The inspector checked boxes concerning negligence
and gravity for all fourteen of these violations. Most of
the checked boxes coincide with the Solicitor's conclusions.
In one instance, Citation No. 2089069, however, the inspector indicates no negligence while the Solicitor indicates a low level of negligence.
In many other cases I have previously stated that I
cannot base a settlement approval upon an inspector's checks
in boxes on a form without some explanation from the Solicitor.
As already pointed out, under section llO(i) of the Act I am
charged with the responsibility of.determining an appropriate
penalty in light of the six specified criteria. The Solicitor
has told me nothing about size, prior history, or ability to
continue in business.
Accordingly, the proposed settlements must be Denied.
In another case involving this operator (LAKE 83-80-M)
I disapproved a similarly inadequate settlement motion from
this Solicitor and ordered him to submit additional information.
However, the additional information he submitted
still did not support approval of the proffered settlement
and I therefore, assigned the case for hearing. Assignment
of this case also appears to be the most expeditious manner
of proceeding. See also LAKE 83-74-M, LAKE 83-77-M and
LAKE 83-81-M.
In light of the foregoing, this case is assigned to
Administrative Law Judge James A. Broderick.

1809

All future communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Off ice of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604
(Certified Mail)
Mr. Thomas Thimm, Plant Manager, Medusa Cement Company,
Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720
(Certified Mail)

/ln

1810

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

October 14, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 83-76-M
A.C. No. 20-00038-05502

v.
Medusa Cement Company
(Plant)

MEDUSA CEMENT COMPANY,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the two violations in this case for the original
assessments total of $105.
Citation No. 2089083 was issued for a violation of 30
C.F.R. § 56.ll-l because a build-up of cement was noted on
the stairway and walkway at the bottom of the transfer
elevator. The violation was assessed at $85. The Solicitor
states that the operator demonstrated a low degree of negligence but he gives no basis for this assertion. The Solicitor
further states that the violation was significant and substantial but again he gives no reasons.
The inspector
checked boxes indicating that negligence was low and that
occurrence was reasonably likely and could reasonably be
expected to result in lost workdays or restricted duty.
Citation No. 2089085 was issued for a violation of 30
C.F.R. § 56.11-12 because the cover plate for the No. 2 fuel
oil pump pit was not in place. The violation was assessed
at $20.
The Solicitor states that the operator demonstrated
a low degree of negligence and that there was no likelihood
of an injury. However, the Solicitor provides no information
to support these representations.
The Act makes
the Commission are
recognized that it
lations adopted by
ceeding before the

very clear that penalty proceedings before
de novo.
The Commission itself recently
is not bound by penalty assessment reguthe Secretary but rather that in a proCommission the amount of the penalty to

1811

be assessed is a de novo determination based upon the six
statutory criteria-specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary. Of course, the Commission is not bound by 30
C.F.R. § 100.4 which was the basis of the one $20 "single
penalty assessment" in this penalty proceeding.
The Solicitor has told me nothing about size, prior
history, or ability to continue in business. Under section
llO(i) of the Act I am charged with the responsibility of
determining an appropriate penalty in light of the six
specified criteria.
In another case involving this operator (LAKE 83-80-M)
I disapproved a similarly inadequate settlement motion from
this Solicitor and ordered him to submit additional information.
However, the additional information he submitted
still did not support approval of the proffered settlement
and'I therefore, assigned the case for hearing. Assignment
of this case also appears to be the most expeditious manner
of proceeding.
Accordingly, the settlement motion is Denied and this
case is assigned to Administrative Law Judge James A.
Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Off ice of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Paul Merlin
Chief Administrative Law Judge

/ln

1812

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

October 14, 1983
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MI~E SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
. Petitioner
v.

Docket No. LAKE 83-77-M
A.C. No. 20-00038-05503
Medusa Cement Company
(Plant)

MEDUSA CEMENT COMPANY,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the eleven violations in this case for the original
assessments total of $691.
Six of the violations were originally assessed for $20
apiece. The Solicitor advises that two of these violations
involved a moderate degree of negligence and four involved a
low degree. The Solicitor also states that in each violation
the occurrence of an injury would have been unlikely. He
notes that abatement was accomplished in each instance.
Three of these $20 violations, which involved the
failure to properly locate emergency stop devices at unguarded
pinch points, were originally determined to be significant
and substantial violations. Each citation was modified
because, the inspector found, "the endangered party would
probably be able to activate the emergency stop cord or
would be drawn into it which would activate the emergency
stop and accomplish its purpose of minimizing injury.
Therefore [the citation] is modified to indicate the occurrence is unlikely." The inspector's statement that an
endangered party "probably" could activate the emergency
cord or otherwise "be drawn into it" does not by itself
constitute a sufficient basis to conclude whether or not
the violation was significant and substantial. On the
contrary, the statement is particularly vague and uninformative. Most importantly, for present purposes I do not
have any basis upon which to determine gravity.

1813

Another of the $20 violations, which involved the
failure to guard a drive chain, also was determined originally to be a significant and substantial violation. The
citation was modified because, according to the inspector,
roping off an area in front of and to the side of the chain
drive and attaching a sign to the rope "would alert anyone
coming on to the scene to the unusual condition and would
make it unlikely that anyone would be injured as a result of
the missing guard." The inspector's statement, alone, does
not justify a $20 penalty, which in my opinion, most often
denotes an absence of gravity.
The Act makes very clear that penalty proceedings
before the Commission are de novo. The Commission itself
-is
-recently recognized that it
not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary. The recitation by the Solicitor of bare conclusions is not a sufficient basis upon which I can predicate
settlement approvals of $20 apiece. Of course, as I previously have held the Commission is not bound by 30 C.F.R.
§ 100.4 which is the basis of the six $20 "single pen~lty
assessments."
The five remaining violations were assessed for amounts
ranging from $85 to $136. The Solicitor advises that one of
these violations involved a moderate degree of negligence
and four involved a low degree.
The Solicitor also states
that each of these violations was significant and substantial.
He notes that abatement was accomplished in each instance.
Here again, the Solicitor gives no information for his conclusions regarding negligence and gravity.
"Significant and
substantial" is not the same as gravity.
The inspector did
check boxes concerning negligence and gravity for all five
of these violations. Most of the checked boxes coincide
with the Solicitor's conclusions.
In .one instance, Citation
No. 2089050, however, the inspector indicates a moderate
degree of negligence while the Solicitor indicates a low
degree.

1814

In many other cases I have previously stated that I
cannot base a settlement approval upon an inspector's checks
in boxes on a form without some explanation from the Solicitor.
As already pointed out, under section llO(i} of the Act I am
charged with the responsibility of determining an appropriate
penalty in light of the six specified criteria.
In addition
to inadequate data on gravity and negligence, the Solicitor
has told me nothing about size, prior history, or ability to
continue in business.
Accordingly, the proposed settlements must be Denied.
In another case involving this operator (LAKE 83-80-M)
I disapproved a settlement motion from this Solicitor and
ordered him to submit additional information. However, the
additional information he submitted still did not support
approval of the proffered settlement and I therefore,
assigned the case for hearing. Assignment of this case also
appears to be the most expeditious manner of proceeding.
See also LAKE 83-74-M, LAKE 83-75-M and LAKE 83-81-M.
In light of the foregoing, this case is assigned to
Administrative Law Judge James A. Broderick.
All future corrununications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Corrunission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604
(Certified Mail)
Mr. Thomas Thirrun, Plant Manager, Medusa Cement Company,
Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720
(Certified Mail)

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1815

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

October 14, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
MEDUSA CEMENT COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-81-M
A.C. No. 20-02514-05502
Medusa Cement Company
(Plant)

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the three violations in this case for the original
assessments total of $98.
Citation No. 2088997 was issued for a violation of 30
C.F.R. § 56.14-1 because guarding was not provided for the
counterweight wheel for a shaker screen.
The violation was
assessed at $20. The Solicitor states that the operator
demonstrated a moderate degree of negligence and that an
injury was unlikely to occur. The Solicitor, however, provides no information to support these assertions.
The Act makes very clear that penalty proceedings
before the Commission are de novo. The Commission itself
-is
-recently recognized that it
not bound by penalty assessment regulations adopted by the Secretary but rather that
in a proceeding before the Commission the amount of the
penalty to be assessed is a de novo determination based
upon the six statutory criteria specified in section llO(i)
of the Act and the information relevant thereto developed
in the course of the adjudicative proceeding.
Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this
were not so, the Commission would be nothing but a rubber
stamp for the Secretary. The mere recitation by the
Solicitor of bare conclusions is not a sufficient basis
upon which I can approve $20 penalty assessments.
Citation Nos. 2089063 and 2089064 were issued for
failure to properly maintain a fire extinguisher and failure
to clear a walkway of material causing a slip and fall

1816

hazard, respectively. The violations were assessed at $39
apiece. The Solicitor states that the operator demonstrated
a low degree of negligence in both instances but he provides
no information to support this assertion.
The Solicitor
further states that the violations were significant and
substantial but again he gives no reasons.
In both citations,
the inspector checked boxes indicating that negligence was
low and that occurrence was reasonably likely and could
reasonably be expected to result in lost workdays or restricted
duty.
I have previously stated that I cannot base a settlement
approval upon an inspector's checks in boxes on a form
without some explanation from the Solicitor. As already
noted, under section llO(i) of the Act I am charged with the
responsibility of determining an appropriate penalty in
light of the six specified criteria, including gravity.
In absence of other evidence, $39 would appear a low penalty
amount.
The Solicitor has told me nothing about size, prior
history, or ability to continue in business.
In another case involving this operator (LAKE 83-80-M)
I disapproved a similarly inadequate settlement motion from
this Solicitor and ordered him to submit additional information. However, the additional information he submitted
still did not support approval of the proffered settlement
and I therefore, assigned the case for hearing. Assignment
of this case also appears to be the most expeditious manner
of proceeding. See also LAKE 83-74-M, LAKE 83-75-M and
LAKE 83-77-M.
Accordingly, the settlement motion is Denied and this
case is hereby assigned to Administrative Law Judge James A.
Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address:
Federal Mine Safety and
Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6215

Chief Administrative Law Judge

/ln

1817

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

OCT 14 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-52
A.C. No. 36-05018-03507

v.
Cumberland Mine
U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Thomas A. Brown, Jr., Esq., and Matthew J. Rieder,
Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This case involves a single citation issued September 9, 1982,
alleging a violation of 30 C.F.R. § 75.200 because Respondent failed
to comply with its approved roof control plan. Respondent does not
deny that the violation occurred, but denies that it was significant and substantial, and contests the amount of the penalty. Pursuant to notice, the case was heard in Uniontown, Pennsylvania, on
June 22, 1983. Steve Yurkovich testified on behalf of Petitioner;
Don Laurie and Rudy Juracko testified on behalf of Respondent.
Both parties have filed posthearing briefs. Based on the entire
record, and considering the contentions of the parties, I make the
following decision:
FINDINGS OF FACT
1. Respondent is the owner and operator of an underground
coal mine in Greene County, Pennsylvania, known as the Cumberland
Mine.
2. The subject mine produces in excess of 1 million tons of
coal annually.
Respondent produces in excess of 15 million tons
of coal annually. Respondent is a large operator.

1818

3.
In the 24 months prior to the violation alleged herein,
the subject mine had 32 assessed violations of 30 C.F.R. § 75.200.
This history of prior violations is not such that a penalty otherwise appropriate should be increased because of it.
4. The imposition of a penalty in this case will not affect
Respondent's ability to continue in business.
5. The,approved roof control plan in effect at the subject
mine at all times pertinent to this proceeding required that in all
track haulage intersection spans a minimum of one crib or two posts
be installed as suppl~mentary roof supports in one or more of the
inactive approaches (Government Exh. 2) .
6. On September 9, 1982, supplementary roof supports were not
present in either of the approaches to the track haulage road at
the intersection of the No. 3 entry and the 21st crosscut in the
63 Face South section of the subject mine. Citation No. 2011731
was issued charging a violation of 30 C.F.R. § 75.200.
7. The roof in the cross cut was "potted out" in an area of
about 80 or 90 square feet.
The roof was split inby the intersection and starting to break.
8. Ten roof bolts had been installed in the potted out area,
which apparently occurred during the mining cycle when the miner
operator cut higher than normal. The ten bolts were three or four
more than called for in the roof control plan. The mining of this
area took place about 14 weeks prior to the issuance of the
citation.
9. Header blocks were added to the bolts in the potted out
area to catch loose material around the bolt.
10. The violation was abated September 9, 1982, by the
installation of two posts in the right side of the intersection.
They were later replaced by cribs in October or November of 1982.
ISSUES
1. Was the violation of such nature as could significantly
and substantiallv contribute to the cause and effect of a mine
safety or health-hazard?
2.

What is the appropriate penalty for the violation?

CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the subject
mine, ang I have jurisdiction over the parties and subject matter
of this proceeding.

1819

2. The condition described in Finding of Fact No. 6 was a
violation of the approved roof control plan and therefore of
30 C.F.R. § 75.200.
3. The violation referred to above was of such nature as could
significantly and substantially contribute to the cause and effect
of. a mine safety hazard.
DISCUSSION
The roof control plan requires additional supports at track
haulage intersections to help prevent roof falls along the
haulage roads. Not all roof control plans have such a requirement,
and the MSHA Inspector admitted that such a requirement is not
necessary for haulage intersections unless the roof conditions are
bad. However, the intersection in question had a large potted out
area and was beginning to break.
The inspector described the roof
in the intersection as "bad." In such a place, he believed that
additional supports were necessary to prevent a roof fall.
I conclude that a roof fall was reasonably likely to occur as a result
of the violation and, if it occurred, it would likely cause serious
injuries to miners. This judgment must be made considering the
conditions present at the time the citation was issued. The fact
that the roof has not fallen and the cribs are apparently not
bearing weight as of the hearing date is not determinative of the
question.
4. The violation was serious. Roof falls are the.most common
cause of fatalities in the nation's mines.
5. The violation was obvious. Respondent should have been
aware of it.
It resulted from negligence.
6. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for this violation is $250.
ORDER
Based on the above findings of fact and conclusions of law, IT
IS ORDERED
1. Citation No. 2011731, including its designation as significant and substantial, is AFFIRMED.
2. Respondent shall, within 30 days of the date of this order,
pay the sum of $250 for the violation found herein to have occurred.

~~~
James A. Broderick

J

Administrative Law Judge

1820

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

October 14, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-111-M
A.C. No. 35-00540-05501
Ross Island Plant

ROSS ISLAND SAND & GRAVEL
COMPANY,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
On September 28, 1983, I ordered the Solicitor to
submit additional information to support the proposed
settlements of $20 apiece for the two violations involved in
this matter. The Solicitor has now responded.
With respect to Citation No. 2225917 the Solicitor
advises as follows:
In regard to this citation, detailing
the fact that a work deck area behind a
screen where the scalper machine was located,
was being littered with wood and other debris,
a violation of 30 CPR 56.11.1, if the inspector
were to testify he would state in regard to
negligence: that the negligence involved was
ordinary negligence. The wood scattered
around the workplace was obvious and was the
result of the company's failure to correct
said condition.
In regard to the gravity of the situation,
the inspector would testify that there were
approximately two or three persons working in
the area and it was probable that they would
trip or fall.
The type of injury that might
occur is unpredictable as it would depend
entirely on the nature of the fall, but was
unlikely to cause lost work days or restricted
duty.

1821

With respect to Citation No. 2225918 the Solicitor
advises as follows:
In regard to Citation 2225918 detailing
the fact that an acetylene bottle, located in
the welding bay, was not secured, a violation
of 30 CFR 56.16-5, if the inspector were to
testify, he would state in regard to negligence:
that the negligence involved was
ordinary negligence, in that the operator
failed to exercise reasonable care to prevent
and correct the condition. The bottle was in
plain view and obviously unsecured.
In regard to the gravity of the situation,
the inspector would testify that there were
two to three men working in the area all the
time doing welding or working at the front
end of a loader.
The probability of an
accident occurring was 'probable' because
although there was no flammable material
around, there remains the possibility of
pressure accumulating and the bottle acting
like a trajectory.
The gravity of an injury
if it were to occur would be unpredictable
depending upon the length of time the bottle
was unsecured and the direction it took.
It
would be expected that a minimal number of
days would be lost or work restricted.
In light of the foregoing, I am unable to approve $20
settlements for either of these violations. Although the
operator is small and without a prior history, gravity and
negligence in both instances appear at first blush to be
much greater than would be consistent with $20 penalties .
. At the very least, the inspector's statements raise questions
which should be resolved at hearing.
Accordingly, the motion for settlement is Denied. This
case is hereby assigned to Administrative Law Judge Virgil E.
Vail.

1822

All future communications regarding this case should be
addressed to Judge Vail at the following address:
Federal Mine Safety and
Health Review Commission
Office of Administrative Law Judges
333 W. Colfax Avenue, Suite 400
Denver, CO 80204
Telephone No. 303-837-3577

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rochelle Kleinberg, Esq., Office of the Solicitor, u. S.
Department of Labor, 8003 Federal Office Building, Seattle,
WA 98174
(Certified Mail)
Mr. R. G. Tuttle, Corporate Director, Ross Island Sand &
Gravel Company, 4315 South East .McLoughlin Blvd., P. o. Box
02219, Portland, OR 97202
(Certified Mail)

/ln

1823

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

OCT 17 1983
CLINCHFIELD COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. VA 82-51-R
Order and Citation No. 2038802;
6/18/82

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

Hurricane Creek Mine
CIVIL PENALTY PROCEEDING

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

Docket No. VA 83-24
A. C. No. 44-01773-03509

v.

Hurricane Creek Mine

CLINCHFIELD COAL COMPANY,
Respondent
DECISION
Appearances:

Fletcher A. Cooke, Esq., Clinchfield Coal Company,
Lebanon, Virginia, for Contestant/Respondent;
Paul Thompson, General Counsel, Pittston Coal
Group, Lebanon, Virginia, for Contestant/Respondent;
David E. Street, Esq., Office of the Solicitor, u. S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent/Petitioner.

Before:

Judge Steffey

A hearing was held on April 27 and 28, 1983, in Abingdon,
Virginia, in the above-entitled proceeding pursuant to sections
lOS(d) and 107(e), 30 U.S.C. §§ 815(d) and 817(e), of the Federal Mine Safety and Health Act of 1977. The parties indicated
at the conclusion of the hearing that they wished to file posthearing briefs.
Counsel for both parties filed simultaneous
initial posthearing briefs on August 17, 1983, and counsel for
Clinchfield Coal Company filed a reply brief on September 9,
1983.
Issues
The subject of the hearing was the issuance by MSHA on
June 18, 1982, of Order and Citation No. 2038802, pursuant to
sections 107(a) and 104(a) of the Act, requiring all persons to
be withdrawn from a roof-fall area in the 2 Left Section of
Clinchfield's Hurricane Creek Mine and alleging that a violation

1824

of 30 C.F.R. § 75.200 had occurred. Clinchfield claims in its
application for review filed on July 19, 1982, in Docket No.
VA 82-51-R, that;. no imminent danger existed and that no violation
of section .75.200 occurred.
The Secretary of Labor filed on
April 6, 1983, in Docket No. VA 83-24, a petition for assessment
of civil penalty seeking to have a civil penalty assessed for the
alleged violation of section 75.200 alleged in Order and Citation
No. 2038802.
'
The three basic issues raised by the parties are:
(1) whether a violation of section 75.200 occurred; (2) whether an imminent
danger existed on June 18, 1982, when Order No. 2038802 was issued,
and (3) what civil penalty should be assessed under section llO(i)
of the Act if a violation of section 75.200 is found to have
occurred.
Summary of the Evidence
Counsel for the Secretary of Labor and counsel for Clinchf ield Coal Company entered into the following stipulations (Tr.
7-8):
(1) Clinchfield is the owner and operator of the Hurricane
Creek Mine involved in this proceeding.
(2) Clinchfield and the
Hurricane Creek Mine are subject to the Act.
(3) The administrative law judge has jurisdiction to hear and decide the case.
(4)
The inspector who issued Order No. 2038802 on June 18, 1982, under sections 107(a) and 104(a) of the Act is a duly authorized
representative of the Secretary of Labor.
(5) A true and correct
copy of Order No. 2038802 was properly served upon Clinchfield.
(6) All witnesses are accepted generally as experts in coal mine
health and safety.
(7) Imposition of civil penalties will not
affect the operator's ability to continue in business.
(8)
Clinchfield is a medium-sized coal company which produces about
3,000,000 tons of coal annually.
(9) The Hurricane Creek Mine
is a medium-sized mine.
(10) The Mine Safety and Health Administration and the Virginia Division of Mines conducted a joint
investigation on June 4, 1982, of an accident which occurred at
the Hurricane Creek Mine on June 2, 1982, and also conducted on
June 18, 1982, a reinvestigation of the accident, but the MSHA
and Virginia personnel who participated in:the reinvestigation
on June 18, 1982, were not involved in the issuance of Order No.
2038802 (Tr. 328) •
The issues in this proceeding must be resolved in light of
the witnesses' testimony which is summarized in the following
paragraphs:
1. Nickie Brewer, a coal-mine inspector from MSHA's Norton,
Virginia, Office conducted a spot inspection at Clinchfield's
Hurricane Creek Mine on June 18, 1982. He was accompanied into
the mine by Supervisory Inspector E. C. Rines, and by Denver
Meade, -·a member of the United Mine Workers of America and chairman of the safety committee at the Hurricane Creek Mine (Tr. 1012; 78; 130).

1825

2. The three men started their inspection in the No. 1
entry of the 2 Left Section and when they reached the last open
crosscut between the Nos. 5 and 6 entries, they encountered some
extensive overhanging brows which Brewer found to be an imminent
danger. Therefore, at 12:00 noon he issued Order No. 2038802
dated June 18, 1982, under section 107(a) of the Act. Order No.
2038802 also cited a violation of 30 C.F.R. § 75.200 under section 104(a) of the Act (Tr. 12; 20; 73). The condition or practice given in the order reads as follows (Exh. 1, p. 1):
An unsupported, overhanging, arching rock brow
that showed separation (cracked and broken) was present along the left rib of the No. 5 entry, right
crosscut of the 2 Left (005) Working Section where a
roof fall had occurred and a continuous-mining machine
had been recovered from under fallen roof material.
This brow began approximately 57 feet inby the centerline off the No. 5 entry and extended inby approximately 20 feet.
The brow arched toward the center of
the entry approximately 9 feet and was 2 feet thick.
Another unsupported rock brow was present along
the right rib of the same entry crosscut, beginning
approximately 54 feet inby the same centerline and
extending inby approximately 18 feet.
The brow overhung from 22 inches to approximately 9 feet out over
the entry.
Unsupported, fractured roof was also
present immediately inby the fall area in the No. 6
entry measuring 9 feet by 9 feet extending inby to
the face and right rib of the No. 6 entry.
At the time of this inspection there was no
activity in this vicinity and the area was dangered
off. However, a continuous-mining machine had been
recovered in this area prior to this inspection.

3. Order No. 2038802 was terminated on December 6,
1982, and the reason given for terminating the order was that
(Exh. 1, p. 2):
The safe procedure for recovering mine machinery
from area where roof falls have occurred has been discussed with the workmen on all shifts. Also the area
where the roof fall had occurred had been dangered and
barricaded off. The company also has no intention of
mining in the area of the roof fall.
4. Brewer testified that on June 18 he found no danger
sign of any kind to warn persons of the hazards of going into
the crosscut in which the unsupported brows existed (Tr. 46;
318-319). In his order, however, Brewer had stated that "* * *
there was no activity in this vicinity and the area was dangered

1826

off." Brewer said that the area was not dangered off until after
he had hung red tags in the fall area to warn persons of the existence of the imminent danger (Tr. 46).
Brewer's supervisor
suggested that since Brewer, rather than Clinchfield, had posted
danger signs, Brewer should modify his order to remove the ambiguous reference to the area's having been dangered off (Tr. 56).
Therefore, on January 18, 1983, Brewer issued a modification of
the order reading as follows:
Order No. 2038802 issued June 18, 1982, is hereby
modified to include the following statement:
The approaches to this area of violation prior to
the issuance of the order of withdrawal were not dangered off.
5.
In support of his finding of the existence of an imminent
danger, Brewer introduced as Exhibit 2 a diagram of the way the
overhanging brows appeared to him when he examined them by going
into the crosscut from the No. 5 entry. Brewer wrote the letter
"A" on Exhibit 2 to show the location of the right rib of No. 6
entry inby the brows (Tr. 22).
The letter "B" on Exhibit 2 shows
the location of the left brow which was 20 feet long, was arched
out over the center of the crosscut for a distance of 9 feet, and
was about 2 feet thick.
Brewer was especially concerned about a
crack at the place where the left brow began (Tr. 13). He interpreted the existence of the crack as an indication that the brow
was just hanging there "waiting to fall" (Tr. 22; 32). Brewer
wrote the letter "C" on Exhibit 2 to show the location of the
right brow which was 18 feet long, arched out over the crosscut
a distance of from 22 inches to 9 feet, and was 1-1/2 to 2 feet
thick. Brewer placed the letter "D" on Exhibit 2 to mark the 9foot square area in the roof of the No. 6 entry where the roof
was unsupported, cracked, and broken (Tr. 24).
6.
Brewer stated that the brows described in summary paragraph No. 5 were the remainLng edges of a roof fall which had
occurred in the crosscut on June 2, killing two miners and covering up Clinchfield's continuous-mining machine (Tr. 33). Brewer
said that a motor and a control bank had to be replaced on the
continuous-mining machine before it could be extricated from the
roof fall and it was his belief that the miners were exposed to
unsupported roof while they were in the process of replacing the
parts. Brewer introduced as Exhibit 4 a diagram showing that the
overhanging brows would have been over the head of anyone replacing parts on the continuous-mining machine or working the controls
to extricate the continuous-mining machine from the crosscut (Tr.
34-39).
7. Although no coal was being produced in 2 Left Section
at the time Brewer wrote the order citing an imminent danger, he
said that the continuous-mining machine recovered from the rooff all area was about 120 feet away from the fall area and that if

1827

Clinchfield had succeeded in getting the miner repaired by that
evening, active production of coal would have been resumed (Tr.
48-50; 64).
Brewer also claimed that the crosscut had to be
considered a place where miners were regularly required to work
because preshift examinations of the area would have had to have
been made in order for repairmen to work on the disabled contin·uous-mining machine (Tr. 18-19). Since he had found no danger
sign or breaker posts when approaching the crosscut from the No.
5 entry, he said that it was quite likely to qssume that the preshift examiner would go into the crosscut to the No. 6 entry to
take an air reading and be killed by one of the unsupported
brows (Tr. 19-20). Brewer also believed that Clinchfield's failure to support the brows was associated with a high degree of
negligence because supervisory personnel were in the crosscut at
the time the continuous-mining machine was recovered and yet they
had taken no action to correct the hazardous conditions which
existed when he inspected the crosscut on June 18 (Tr. 41).
8. Brewer's supervisor, E. C. Rines, supported Brewer's
exhibits and his belief that an imminent danger existed. Rines
emphasized the height of the brows where they terminated against
the roof cavity, their 9-foot extension from the ribs toward the
center of the crosscut (Tr. 91), and the fact that there were no
bolts in the brows and that the only bolts they saw were in the
center of the crosscut (Tr. 93), except for a single bolt near
the rib in the right brow close to the point where the crosscut
intersected with the No. 6 entry (Tr. 92; Exh. 3, p. 1). Rines
believed that single bolt had failed to pull out when the roof
fall occurred.
Rines said that even if Clinchfield had erected
a danger sign at the intersection of the No. 5 entry and the
crosscut cited in the order, the existence of a danger sign
would not be a reason to prevent an inspector from issuing an
imminent-danger order (Tr. 310-311).
9. Larry Coeburn was the MSHA inspector normally assigned
to perform inspections at the Hurricane Creek Mine (Tr. 126).
He was not with Brewer and Rines when the imminent-danger order
was issued, but he accompanied Clinchfield's personnel when they
went to examine the crosscut on June 22 and he concurred with
Brewer's and Rines' belief that the unsupported brows in the
crosscut constituted a very hazardous condition. He believed
that if the brows had fallen, they would necessarily have fallen
across the middle of the crosscut. He said that when he went to
the roof-fall area on June 22, there was still no physical obstruction to prevent a miner from entering the hazardous crosscut from the No. 5 entry. Therefore, he participated in cutting
timbers and boards so that they could erect actual barricades at
each end of the roof-fall area to preclude persons from entering
the area unless they removed the barriers (Tr. 125). At the
time they erected the barricades, actual production of coal was
being conducted in the 2 Left Section just two crosscuts inby

1828

the crosscut in which the imminent danger had been cited and
still existed (Tr. 128).
10.
Denver Meade, the safety committeeman who accompanied
Brewer on his inspection of the 2 Left Section, stated that the
likelihood of the brows' falling was "[j]ust about as great a
chance as it could get.
I made the statement up there it was
like working close to a cocked gun, working up there" (Tr. 130131). Meade participated in installing roof bolts and in erecting crossbars outby the area of the roof fall.
He said that he
saw no supports whatsoever under the brows cited in the irnminentdanger order and that he was just about as confident as one can
get in stating that there were no roof bolts in the brows (Tr.
131). Meade also testified that a company official, Gail Kizer,
went out from under both permanent and temporary supports to
attach ropes to rocks so that the rocks could be pulled off of
the continuous-mining machine which had been covered up in the
roof fall (Tr. 132). Meade placed an "X" on page 1 of Exhibit 3
to show the location of one of the rocks which were pulled out
before the continuous-mining machine could be removed (Tr. 137).
11. A preshift examiner, Robert Vickers, testified that he
preshifted the 2 Left Section between 9 p.m. and midnight on
June 17, 1982, and he introduced as Exhibit A a preshift examiner's report showing that he wrote the words "Danger off at fall"
on the line for noting hazards in the No. 6 entry. Vickers said
that the notation was made because he saw a Pepsi or Coke can
with illuminated tape on it hanging from a roof bolt about eye
level in the No. 5 entry near the crosscut leading to the rooffall area. Vickers claimed that a reflectorized can was used
in the Hurricane Creek Mine as a danger sign and that miners
know to examine the area inby such cans for hazardous conditions
before entering such areas. Vickers said his notation was intended to mean that the entire fall area and both the approaches
from entries Nos. 5 and 6 had been "dangered off'' (Tr. 149-150).
Vickers stated that he did not go inby the reflectorized can and
that he inspected the No. 6 entry by going through the crosscut
outby the roof-fall area to examine the No. 6 entry. Vickers
could nbt recall when the can first appeared in the No. 5 entry,
but he made another preshift examination between 9 and midnight
on June 18 and the can was still hanging in the No. 5 entry
where he had observed it on June 17 (Tr. 155). Vickers also
believed that there was a reflectorized can in the No. 6 entry
(Tr. 156). Vickers went so far as to assure the Secretary's
counsel that he was as certajn that there was a can in both the
No. 5 and No. 6 entries as he was that he was sitting in the
courtroom (Tr. 157).
12. Logan Busch, a Clinchfield miner with 13 years of
experience, including 8 years of operating a continuous-mining
machine, participated in the removal of the continuous miner
which had been covered up by the roof fall in the crosscut between Nos. 5 and 6 entries (Tr. 179-180). He and another miner

1828

worked for an entire shift bolting the cavity left in the roof
which fell on the continuous miner (Tr. 191). They stood on
top of the continuous miner and worked their way around cribs
built on top of the miner (Tr. 184). The stoper, or pneumatic
drill, they were using weighs about 200 pounds and is very difficult to use in the cramped conditions they encountered on top
of the miner and on the side of the miner (Tr. 191-195; 201-203).
Busch said that they installed roof bolts every place they could
reach with the stoper. Some of the area on the right side of
the miner was too high to reach with the steel they were using
{Tr. 185) and they could not bolt the roof over and immediately
outby the ripper head because the ripper was cutting coal at the
time the roof fell and the rock at the top of the head and immediately behind the head was still lying on top of the miner and
there was no room at all to use the stoper in that area (Tr. 183).
13. Busch, who has assisted in recovering about seven or
eight continuous miners from roof falls (Tr. 181), and some other
Clinchfield employees went to the 2 Left Section on Sunday,
June 13, 1982, to remove the continuous-mining machine after the
roof had been bolted and most of the rocks had been removed from
the sides of the continuous miner. Busch and his supervisor,
Don Cross, removed some remaining rock from behind the boom of
the miner while a repairman, Roy Sauls, installed a pump and a
valve block on the right side of the miner (Tr. 180). Busch
then positioned himself at the continuous miner's controls, but
the miner was not yet free enough to be trammed from the area
until a rope was attached to the miner and hooked to a scoop
{Tr. 185). By using the ripper head to dislodge rocks near the
front of the miner and by relying upon the scoop's assistance,
Busch was able to back the miner out of the crosscut (Tr. 186).
Busch stated that there were bolts over the deck of the miner
which made him believe it was safe for him to operate the controls (Tr. 182). He was, nevertheless, aware of the crack in
the left brow, but he concluded that the left brow was caught
against firm rock in the center of the bolted roof-fall cavity.
He further believed that if the left brow had fallen, it would
have f~llen on the continuous miner at a point inby the operator's controls where he was situated (Tr. 203-204).
14. After Busch and the other members of the recovery team
had added oil to the miner's hydraulic system, they succeeded in
tramming ·it outby the crosscut for about a break and a half and
they left it there for evaluation as to the need for further repairs (Tr. 190). Busch says that the reflectorized can, described
in summary paragraph No. 11 above, was "still" in the No. 5 entry
on June 13, but he thinks or is "pretty sure" that they also
erected a single timber in the intersection of the No. 5 entry
with the crosscut and that they wrote the word "Danger" on that
single timber {Tr. 190). After Busch had trammed the miner out
of the crosscut, no supports at all were left in the roof-fall

1830

area other than those which had been installed with the stoper
prior to removal of the miner. Since Busch had been unable to
install any bolts near the front of the continuous miner, there
was naturally no.support of any kind at the far end of the roof
fall where the crosscut intersected the No. 6 entry (Tr. 189).
15. Roy Sauls, a repairman with 13 years of experience,
including 12-1/2 years of experience in the Hurricane Creek Mine,
has assisted in recovery of continuous-mining machines from
seven or eight roof falls (Tr. 205; 212). He replaced the "C"
pump and valve block on the right side of the miner on Sunday,
Jun~ 13, just before the miner was trammed from the crosscut.
He worked at the edge of the right brow in doing so and the brow
had neither roof bolts nor temporary supports under it at the
time he did the work (Tr. 207-208). He examined the brow and
felt that the fall area had been made as safe as a fall area can
be made. While he considered it safe for him to do the repair
work, he also expressed the opinion that "[t]here's a possibility there could have been another fall in there anywhere" (Tr.
209) • Sauls stayed around on June 13 until his supervisors and
he had examined the continuous-mining machine and it was the
consensus that the miner would have to be disassembled and taken
to the central shop to be rebuilt because the damage done to it
by the roof fall was too extensive to be repaired underground
(Tr.211).
16. Don Cross has worked for Clinchfield for 18 years and
he was the supervisor in charge of recovery of the continuousmining machine on June 13, 1982 (Tr. 213). His account of the
recovery of the continuous miner does not differ from Busch's
explanation which has been summarized in paragraph Nos. 12, 13,
and 14 above.
There was likewise little difference in the testimony of Busch and Cross as to the setting of a timber outby the
crosscut with the word "Danger" written on it after removal of
the continuous miner from the crosscut. Just as Busch had stated
that he "was not for sure" and "believed" that they had erected
such a timber (Tr. 190), so did Cross qualify the setting of the
timber "to the best of [his] knowledge" (Tr. 215). Cross, like
Busch, also stated that the reflectorized warning can was "still"
hanging in the No. 5 entry at the approach into the crosscut
(Tr. 215). Cross' credibility also suffers somewhat from his
inconsistent statement on cross-examination that he had only
worked 1 day in the fall area (Tr. 216) as compared with his
statement during direct examination that "* * * we had worked
on the area the shift previous" (Tr. 214).
17. Monroe West has been Clinchfield's safety director
since September 1, 1977. Prior to that, he served for 18 years
in various positions with the Bureau of Mines and MSHA, including several years as subdistrict manager of MSHA's Norton,
Virginia, Office (Tr. 217). He was in the No. 5 entry and crosscut on June 18 when the imminent-danger order was issued, but he

1831

did not see the ref lectorized can allegedly observed by other
Clinchfield witnesses (Tr. 223; 227). West introduced as Exhibit Ca copy of the Hurricane Creek Mine's roof-control plan
which was in effect on June 18. West stated that paragraph 3(a)
of the roof-control plan provides as follows (Tr. 223):
(a) Upon completion of the loading cycle, a
reflectorized warning device, such as a "stop" sign,
shall be conspicuously placed to warn persons approaching any area that is not permanently supported.
It is to be emphasized that the warning device has
been placed to cause the person to stop, examine,
and evaluate the roof and rib conditions prior to
entering the area--even after temporary supports
have been installed.
West said that a ref lectorized can was used at the Hurricane
Creek and other mines to warn miners of hazardous conditions and
that miners will not enter the area beyond such a warning device
even if no physical barrier is erected to prevent them from going into the area beyond such a can (Tr. 223-225).
18. West was asked to examine the preshift report made by
an examiner for the oncoming 8-a.m.-to-4-p.m. shift on June 18
and that report has no notation at all to show that the reflectorized can did or did not exist in the No. 5 entry of the 2
Left Section (Tr. 230). West stated that it is not necessary to
preshift a section which is idle if there is no activity in the
section (Tr. 228), but he said that preshifts were required when
miners were working in the 2 Left Section to determine the exact
locations of roof bolts or to perform repairs on the continuousmining machine (Tr. 228).
19. Ronald Hamrick, an employee of the Virginia Division
of Mines with 30 years of coal-mining experience, testified that
he was in the 2 Left Section on June 2, 4, and 18, 1982, as a·
participant in the original investigation and reinvestigation of
the roof fall which occurred on June 2 (Tr. 249-250). On June 18,
he was in the No. 6 and No. 5 entries and he recalls seeing a
reflectorized can hanging in the No. 5 entry. He looked beyond
the can into the crosscut and saw roof bolts and believed that
they had ~orgotten to remove the can because it appeared that
the crosscut had already been permanently supported. He did not
go more than 10 or 15 feet into the crosscut because his supervisor called him about the time he saw the can and they went
inby the crosscut and examined the face areas and torqued roof
bolts (Tr. 251-252). Hamrick did not see the reflectorized can
on June 4 and does not think one existed at that time (Tr. 258).
Hamrick said that he probably made some notes about the investigation but that he did not have the notes with him and that he
doubts if he would have made a notation about observing the reflectorized can because that is a common occurrence (Tr. 258).

1832

Hamrick also stated that Clinchfield's attorney had referred to
the can in a telephone conversation prior to the time he appeared
as a witness in this proceeding (Tr. 259). Hamrick did not see
a reflectorized can in the No. 6 entry (Tr. 261).
20. Earl Hess has worked for Clinchfield for 25 years and
is superintendent of the Hurricane Creek Mine (Tr. 262). He
testified that the roof fall occurred on Wednesday, June 2, 1982,
that the first investigation occurred on Friday, June 4. The mine
was idle for the ~iners' vacation from June 2 to June 10, 1982
(Tr. 227; 238). They began the work preparatory to recovering
the continuous-mining machine on Monday, June 7, by having miners
bolt the roof outby the fall area. That work continued, including the installation of crossbars from the No. 5 entry on into
the crosscut up to the boom of the continuous miner, and the
stopering or bolting of the roof-fall cavity above the continuous
miner.
The miner was recovered on Sunday, June 13, and was taken
to the end of the track "about" Wednesday, June 16, so that it
could be disassembled and transported to the central shop for
rebuilding. Normal or routine production in the 2 Left Section
did not resume until July 12, 1982, according to Hess (Tr. 26226 7) •
21. Hess testified that they mined the crosscut inby the
one in which the roof fall occurred and that they went inby the
roof fall by proceeding inby in the No. 6 entry. They never did
connect up the No. 6 entry with the area where the roof fall
occurred and where Inspector Brewer had found the 9-f oot square
area of unsupported and cracked roof (Tr. 265; 268). The decision not to proceed with normal mining from the face side of the
No. 6 entry was made, however, after Brewer issued the imminentdanger order on June 18, 1982 (Tr. 266). Hess stated that the
Hurricane Creek Mine had only three continuous-mining machines
at the time the roof fall occurred. After the continuous miner
damaged in the roof fall had been removed for repair to the central shop, another one had to be brought into the mine in order
for them to continue mining activities in the 2 Left Section.
On June 18, 1982, when the imminent-danger order was issued, the
closest active mining then in progress was about 2,000 feet away
in the 2 Right Section (Tr. 264-265).
22 . . Paul Guill is Clinchfield's chief engineer (Tr. 158).
He presented as Exhibit B a diagram of the roof-fall area showing
the continuous-mining machine's location in the crosscut and the
number of roof bolts he and his surveyors found in the crosscut
(Tr. 160). Guill testified that he and his assistants set up
transits at points marked with the numbers "1691" and "1692" on
Exhibit B. From those points they "shot" the roof bolts and
plotted each of the roof-bolt locations on Exhibit B (Tr. 161162). Guill shows dotted lines and solid lines to mark the beginning and ending edges of the brows cited in Inspector Brewer's
imminent-danger order. Guill explained that his Exhibit B

1833

depicts the brows in more than one plane with the dotted lines
showing where the brows begin at the normal roof line, or 6-1/2
feet above the mine floor.
The solid lines on Exhibit B show
the places where the roof fall ended (Tr. 166). Although an
examination of Inspector Brewer's Exhibit 3, page 1, appears to
show more roof bolts in the center of the crosscut than Guill
depicts in his Exhibit B, that is not really the case because
Guill's "modes of representation are different" from Brewer's
as a result of the three-dimensional aspects of Guill's roofbolt exhibit (Tr. 169). On Exhibit 3, page 1, Inspector Brewer
shows 13 roof bolts in the immediate roof-fall area if one counts
the single roof bolt near the rib where the word "roof bolt"
appears. Examination of Guill's Exhibit B shows 20 roof bolts
in the roof-fall area, but page 2 of Exhibit 3 shows roof bolts
only inby the point where the brows begin and that commencement
point is at the junction of the boom with the frame of the continuous-mining machine (Tr. 283; 295; Exh. 3, p. 2).
Since
Guill's Exhibit B shows at least 7 bolts outby the place where
Brewer's Exhibit 3 begins to show the locations of roof bolts in
the fall area, Guill's and Brewer's exhibits both reflect the
existence of 13 roof bolts in the fall area. The letter "D" was
placed on Guill's Exhibit B to denote the fact that Guill agreed
with MSHA that no roof bolts had been installed in the mine roof
above the ripper head and for several feet outby the ripper head
(Tr. 176) ~
23.
In rebuttal of Clinchfield's case, the Secretary's
counsel recalled all of his witnesses.
Rines, Brewer, and Meade
each testified unequivocally that they were in both the No. 5
and No. 6 entries on June 18 from five to seven different times
at the place where Clinchfield's witnesses claimed they saw the
reflectorized can. They stated that the centerline from which
they made their measurements as to the extent of the brows and
the location of roof bolts was established very close to the
place where the ref lectorized can had allegedly been hung and
that they did not see such a can on any of their numerous trips
in and out of the entries (Tr. 280; 318; 322). They all stated
that they are familiar with the use of reflectorized cans as
danger signs and that they would have seen it if it had existed
in either the No. 5 or No. 6 entry (Tr. 280; 318; 322). Coeburn
was not in the crosscut on June 18, but was there on June 22
when Guili and the surveyors took sightings to spot the roof
bolts in the crosscut and he stated that no reflectorized can
was hanging in the No. 5 entry on that day (Tr. 325).
24.
Rines also testified on rebuttal that the timber with
the word "Danger" written on it, described by Clinchfield's
witnesses Busch and Cross did not exist on June 18 (Tr. 281).
Moreover, Rines stated that he was in the crosscut before the
miners' bodies were recovered from the roof fall and that he
knows that he could have taken a stoper and could have bolted
the left and right brows either by resting the stoper on the

1834

continuous-miner or by standing on the mine floor and using an
extended piece of steel for drilling into the roof cavity at
its highest point of about 14 feet.
He said that the installation of roof bolts in the scattered bolting pattern used by
Clinchfield's witness Busch was unacceptable (Tr. 304). Rines
stated that he could have bolted the roof-fall area with a proper
number of bolts and would still have been protected by the temporary supports which he himself had helped to install (Tr. 287288).
Rines admitted during cross-examination, however, that
the roof under the roof fall just immediately outby the head of
the ripper did not have sufficient clearance on top of the continuous-mining machine for Busch or anyone else to install roof
bolts (Tr. 305)~
25. Rines also insisted during his rebuttal testimony that
the miners exposed themselves to the unsupported ~eft and right
brows during the time they were recovering the continuous miner
from the roof-fall area (Tr. 306), although he had stated previously during direct examination that he could not say that anyone was exposed to the unsupported brows during removal of rock
because he did not see Clinchfield's employees remove the rocks
(Tr. 90).
Rines admitted that he was not a geologist (Tr. 296),
but he stated that the Jawbone coal seam being mined in the
Hurricane Creek Mine contains "slips" which result in roof falls
like the one which happened on June 2 and that it is easy to
"misjudge the way the planes lie in a slippery roof'' (Tr. 286).
Consideration of Parties' Arguments
Docket No. VA 82-51-R
The Issue of Whether a Violation of Section 75.200 Occurred
The Portion of Section 75.200 Violated
Pages 4 through 14 of Clinchfield's initial brief are devoted to arguing that no violation of section 75.200 was proven
by MSHA. Clinchfield's brief (p. 5) begins its argument by
claiming that the inspector failed to specify what portion of
section 75.200 had been violated. At transcript page 20 his
counsel asked him "[w)hy do you say that there was a violation
of 75.200". His reply was that section 75.200 "requires that
the roof and that the ribs be adequately supported. And the
ribs were not adequately supported, or brows."
At transcript page 73, Clinchfield's counsel asked the
inspector:

Q Mr. Brewer, in the order you cited, 30 CFR
Section 75.200, which refers to the roof-control plan,
just for purposes of clarity, what was the specific
violation of roof-control plan?

1835

A I didn't write the roof-control plan.
I
wrote 200, but everything that's under 200 is not
the roof-control plan.
I wrote failure to adequately support the roof and ribs.
75.202, it could have
been written there, too.
The second sentence of section 75.200 reads 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.
* * *
Based on the testimony quoted above, I find that the inspector
clearly explained the portion of section 75.200 which he believed
had been violated.
Exposure of Miners to Hazardous Brows on June 13, 1982
Clinchfield's brief (p. 6) .alleges that Brewer thought that
the miners who recovered the continuous-mining machine from the
roof-fall area were exposed to unsupported roof, but Clinchfield
claims that none of the inspectors were present when the continuous miner was recovered and do not know whether any miners were
exposed to unsupported roof or brows. Clinchfield also cites
the testimony of Busch and Sauls, who assisted in recovery of
the continuous miner, in support of its claim that no one was
exposed to unsupported roof or ribs when the miner was recovered.
As summary paragraph No. 6, supra, shows, Brewer introduced
Exhibit 4 for the sole purpose of showing that Sauls would have
been exposed to the unsupported right brow when he replaced a
pump and a valve block on the continuous miner before it was recovered from the fall area.
Sauls' own testimony supports
Brewer's belief. During his direct testimony, Sauls first said
he wasn't exposed to the unsupported brows and then reversed himself and stated that "I won't say I wasn't, but the mine top was
bolted over top of where we was working" (Tr. 207). Sauls also
agreed that there were no bolts in the brows and that they did
not have any temporary supports under them (Tr. 208). Also as I
have noted in summary paragraph No. 15, supra, Sauls stated that
there was ~ possibility that a fall could have occurred at any
time. Additionally, as indicated in summary paragraph No. 13,
supra, Busch was concerned sufficiently about the crack in the
left brow, that he gave consideration to the question of whether
it would fall while he was tramming the continuous miner from
the fall area.
If one examines the fall area as depicted in Exhibits B and
C, page 2, showing the location of the continuous miner in the
crosscut, and if one takes into consideration that the continuous

1836

miner is from 10 to 11 feet wide (Exh. C, p. 12) and was situated
in a crosscut 20 feet wide with 9-foot brows overhanging the
crosscut, it would not have been possible for the miners to have
worked on the continuous miner without having been exposed to injury or death by the falling of the unsupported brows. As explained in,summary paragraph No. 22, supra, Clinchfield's Exhibit
B, when properly evaluated, fails to controvert the fact that
the brows were unsupported by roof bolts. Moreover, as noted in
summary paragraph No. 10, supra, Meade was present when rocks
were being removed from the top of the continuous miner and Meade
stated unequivocally that he had seen one of Clinchfield's company officials go completely out from under supported roof in
order to attach ropes to rocks being pulled from the fall area.
It should be noted that Brewer alleged a violation of section 75.200 under section 104(a) of the Act which provides that
an inspector may issue a citation for a violation of the Act or
a mandatory safety standard if he is engaged in an inspection or
an investigation and that he may issue the citation if he "believes" that a violation occurred.
I find that the preponderance
of the evidence in this proceeding shows that the inspector had
ample grounds for believing that the miners were exposed to the
hazards of the unsupported brows when they were engaged in removing the continuous miner from the roof-fall area.
Hazards Existing on June 13 versus Hazards Existing on June 18
Clinchfield's brief (pp. 6-7) argues that the crosscut was
much more safely supported on June 13 when the continuous miner
was recovered than it was on June 18 when the inspector wrote
his order.
The testimony of Clinchfield's witnesses does not
support those claims. Busch stated that he had installed roof
bolts where possible and the exhibits show that he had installed
13 roof bolts along the middle of the crosscut's roof (Exh. 3,
p. l; Summary paragraph No. 22). Sauls testified that there
were no bolts in the brows or temporary supports under the brows
before the continuous miner was removed (Tr. 208). Busch stated
that he could not get any bolts in the roof on the right side of
the crosscut because the roof was too high to reach with the
stoper and that he had not placed any bolts near the ripper head
or for several feet outby the ripper head because there was not
enough cl~arance between the roof and the top of the continuous
miner (Tr. 192-194). Busch does not even claim to have put more
than one bolt in either brow (Tr. 193). Finally, Busch said
that he kicked the last rocks off the continuous miner by starting the ripper head (Tr. 186). Therefore, Busch was just as
vulnerable to a probable fall of the brows at the time the contin~ous miner was being removed as the other operator was when
he was killed by the previous roof fall which occurred in that
identical place on June 2. The preponderance of the evidence
shows that there were two unsupported brows at the time the c ·

183'(

continuous miner was removed on June 13 and there were still
two unsupported brows when the inspectors examined the fall
area on June 18 and issued the imminent-danger order. No significance at all can be placed on Clinchfield's emphasis on the
collars or crossbars which had been set in the No. 5 entry outby the roof-fall area because those collars were set before the
miner was removed and they continued to exist after the miner
was removed (Tr. 186; 195).
The Alleged Timber Inscribed With Word "Danger"
Clinchfield's brief (p. 7) concedes that the roof-fall
area was hazardous after the continuous miner was removed, but
claims that the area was "dangered off" by a timber set in the
middle of the entry by Busch and Cross who allegedly wrote the
word "Danger" on that timber. Clinchfield's brief quotes the
testimony of both Busch and Cross in support of its claim that
a timber was set in the entry after the continuous miner was removed, but the setting of the timber is not corroborated by any
other witness. The preshift examiner, who claims to have seen
a reflectorized can hanging in the No. 5 entry, did not mention
seeing the timber.
The Virginia mine inspector, who allegedly
saw the can, did not mention the timber. None of the three inspectors who were in the fall area saw the timber.
Clinchfield's
safety director, who was in the fall area, did not mention the
timber.
Clinchfield's brief (pp. 7-8) quotes from the testimony of
both Busch and Cross in supporting its claim that a breaker
bearing the word "Danger" had been set outby the fall area, but
Clinchfield's brief (p. 7) drops a very significant sentence
from the beginning of Busch's statement and indents the quotation to make it appear that the quotation is the complete answer
given by Busch.
That omitted sentence reads "I'm not for sure."
In the remaining part of Busch's statement about the setting of
the timber he uses the word "believe" and the phrase "pretty
sure".
Cross is not very positive in asserting that he set a timber with the word "Danger" written on it. Clinchfield's brief
(p. 7) also quotes from Cross' testimony with an indentation
which makes it appear that the entire statement is given. Significantly, however, before Cross made the portion of his statement quoted on page 7 of Clinchfield's brief, he testified as
follows (Tr. 215):
A Charlie and his men wanted to check how much
damage was done [to] it. So Logan [Busch] and I
went back to -- of course, we helped them move it
down some first -- we went back up to the crosscut.
And, to the best of my knowledge, we set one timber
in front of the place. We were going to breaker it
off. But we was running close on time, and we were

1838

getting paid double-time.
[Clinchfield's quotation
begins at this point.]
So we set one timber. And
I had a piece of chalk, railroad chalk, in my pocket
that we use and I wrote "Danger" on it from top to
bottom.
Over the years, I have found that when witnesses are making
statements of doubtful certainty, they qualify the statements
with the phrase "to the best of my knowledge".
Busch was more
forthright than Cross about the setting of the timber in that he
just made a flat announcement at the beginning of his statement
that he was "not for sure". The purpose of a timber with the
word "Danger" written on it is to warn persons of a hazard.
That timber would accomplish no purpose if no one is able to
find it. Yet, as indicated above, at least three of Clinchfield's
witnesses and all four of the Secretary's witnesses were in the
crosscut where the alleged timber was supposed to have been set
and not one of them ever saw the timber. Therefore, i find that
the preponderance of the evidence fails to support a conclusion
that a timber with the word "Danger" on it was ever set in the
crosscut.
One further point needs to be· made with respect to the alleged timber with the word "Danger" on it. Paragraph 19(b) of
Clinchfield's roof-control plan provides as follows (Exh. C,
p. 9) :
(b) All roof falls and other areas in the
active workings where the mine roof material has
been removed from its natural location by any means
and is not being cleaned up shall be posted off at
each entrance to the area by at least two rows of
posts (or the equivalent) installed on not more
than 5-foot centers across the opening.
[Emphasis
supplied.]
In the quotation of Cross' testimony above, he stated that "* * *
[w]e were going to breaker it off" but that since thev were running close on time, he thought they might have set one timber
with the word "Danger" written on it. Cross was a supervisor
with 18 years of experience and his testimony shows that he knew
he should have set at least two rows of posts in conformance
with the rbof-control plan to "breaker off" the crosscut, but
he let the fact that he was running close on time cause him to
omit taking the safety precaution required by the roof-control
plan. One of the reasons that the inspectors issued the imminentdanger order was the fact that they could find no indication that
Clinchfield had erected any danger signs to warn miners either
to stay out of the hazardous crosscut or to approach it only with
great caution.

183~

The Alleged Ref lectorized Can
Clinchfield's brief (pp. 8-9) makes the argument that it
had properly hung a "warning device", or reflectorized can, in
the No. 5 entry as required by paragraph 3(a) of its roof-control
plan (Summary paragraph No. 17, supra).
Clinchfield argues that
since it is only required to hang such a warning device outby
each place after a cut of coal is removed by the continuous miner
before permanent supports are installed, that it was in compliance with its roof-control plan with respect to the unsupported
brows observed by the inspectors on June 18. Although I shall
hereinafter find that the ref lectorized can had not been hung
in this instance, Clinchfield would not have been in compliance
with its roof-control plan even if the alleged reflectorized can
had been hung.
That argument must be rejected for at least two
reasons. First, Clinchfield's roof-control plan does not envision that Clinchfield will simply hang a ref lectorized can
outby each working place when the continuous miner is withdrawn
and leave the place unsupported for weeks at a time.
On the
contrary, the roof-control plan provides that temporary supports
will be erected within 5 minutes after the miner has finished
cutting a place, unless Clinchfield is using a roof-bolting
machine equipped with an automated temporary roof-support
system (ATRS).
If the roof-bolting machine is so equipped, it
is still expected that permanent roof bolts will be installed
within a short period of time after a place has been cut. Moreover, if the ATRS bar cannot be positioned firmly against the
roof, Clinchfield is then required to install temporary supports
within 5 minutes after the continuous miner has completed the
taking of a cut of coal (Exh. 3, pp.· 5: 13-15). Since the roof
in the crosscut where the roof fall had occurred formed a slant
from 6-1/2 feet at the rib to 13 or 14 feet in the center of the
entry, Clinchfield's ATRS bar could not have been positioned
flat against the roof and Clinchfield's roof-control plan required it to rnstall temporary supports under the brows in the
crosscut, but none had been set.
The second reason for rejecting Clinchfield's claim that it
had done all it was required to do under its roof-control plan
to warn persons about the hazard of the unsupported brows is that
paragraph 19 of its roof-control plan specifies the procedures which will be followed where a roof fall has occurred and,
as indicated on page 16, supra, paragraph 19(b) required Clinchfield to install "at least two rows of posts" across both approaches to the crosscut, that is, across both the Nos. 5 and 6
entries. Clinchfield had installed such breakers across the No.
6 entry, but had done nothing to warn persons approaching the
crosscu~ from the No. 5 entry other than to hang an alleged reflectorized can in the No. 5 entry.
Clinchfield's brief (p. 9) attempts to justify its failure
to set breakers in the No. 5 entry before June 18, or to take

1840

any more safety precautions than it did before June 18, by arguing that it had decided not to continue mining in the roof-fall
area and that nothing more than the hanging of a ref lectorized
can needed to be done because no miners would ever have had to
work in the immediate vicinity of the hazardous brows.
Inspector
Brewer thought on June 18, at the time he wrote his order, that
Clinchfield was planning to continue developing the No. 6 entry
from the face side of the roof fall (Tr. 63).
Supervisory Inspector Rines said that Clinchfield had not abandoned its intention of continued development from the face side of the roof-fall
area until after the imminent-danger order was written on June 18
(Tr. 83; 85-86). Clinchfield does not deny that it abandoned its
intention of development from the face side of the roof-fall area
after the order was issued on June 18, but claims that, until its
decision to bypass the fall area was made, "* * * it was safe and
reasonable to danger the area off with the reflectorized sign in
the same manner miners are warned against going inby the face
area where there is unsupported roof" (Br., p. 9).
In addition to the reasons I have already given for rejecting
Clinchfield's claim that it was reasonable, or even in compliance
with its roof-control plan, to leave the No. 5 entry outby the
crosscut marked only with an alleged reflectorized can, I find,
as the following discussion shows, that Clinchfield failed even
to hang the alleged reflectorized can.
There are a number of doubtful aspects to Vickers' testimony
concerning the reflectorized can which he claims to have seen in
the No. 5 entry. First, his notation, "Danger off at fall" (Exh.
A), was made in the preshift book with respect to the No. 6 entry,
not the No. 5 entry, where he and three other witnesses claim to
have seen the can (Vickers, Tr. 151; Busch, Tr. 190; Cross, Tr.
213; Hamrick, Tr. 251). Since Vickers first approached the fall
area from the No. 5 entry and claims to have seen the can in the
No. 5 entry, there is no obvious reason for him to have failed
to make the notation about dangering off the area on the line for
noting hazardous conditions in the No. 5 entry, especially since
he stated on direct examination that hanging the can was a sufficient warning to danger off the entire fall area regardless of
whether one approached it from the No. 5 or the No. 6 entry (Tr.
150) . Vickers did not even mention that he had also seen a reflectorizeq can in the No. 6 entry until I asked that question
after he had failed to state that fact during both direct and
cross examination (Tr. 156).
Second, Vickers took an air reading in the No. 6 entry for
determining air velocity for the return entry (Tr. 151). There
is no reason for him to have failed to see about eight breaker
posts which were erected across the No. 6 entry because those
breaker posts were observed by three of MSHA's witnesses and one
Clinchfield witness and were considered to be an indication that

1841

hazardous conditions existed beyond the breakers (Coeburn, Tr.
125; Hamrick, Tr. 251; Rines, Tr. 281; Brewer, Tr. 319). Therefore, it is more likely than not that Vickers made the notation
of "Danger off at fall" because he had seen the breakers. in the
No. 6 entry and later decided that a can he had seen at some
other place in the mine was actually observed in the No. 5 entry.
Third, Vickers is the only witness who claims to have seen
a reflectorized can in the No. 6 entry (Tr. 151; 156-157). No
other witness corroborated his claim that a can had been placed
in both the No. 5 and No. 6 entries (Tr. 251; 280; 318-319).
Another reason to doubt Vickers' claim that he saw a can suspended from a roof bolt in the No. 6 entry is that bottom materials had been removed from the floor in the No. 6 entry which
made the height from the floor to the mine roof 8 feet in the No.
6 entry, as opposed to the roof's normal height of 6-1/2 feet
(Tr. 280). Vickers stated that the cans are suspended by a wire
from a roof bolt and that they hang down about a foot from the
roof so as to be about eye level.
In describing the cans, he
made no distinction about the height of the roof in the No. 6
entry as compared with the No. 5 entry (Tr. 156).
Fourth, Vickers allegedly saw the reflectorized.can during
his 9 p.m.-to-midnight preshift examination on June 17, but the
preshift examiner who checked the 2 Left Section at 6 a.m. on
June 18, or less than 8 hours later, did not indicate that he had
or had not seen a danger sign in either the No. 5 or No. 6 entry.
Although three MSHA witnesses testified with great certainty that
the can did not exist in the No. 5 or the No. 6 entry during the
day shift on June 18 when the imminent-danger order was issued,
and although Clinchfield's safety director did not see the can
during the day shift on June 18 (Tr. 224; 227), Vickers testified
that the can was still hanging in the No. 5 entry when he made
another preshift examination about 9 p.m. on June 18 (Tr.
155) .
Fifth, Clinchfield's other witnesses, who heard Vickers
testify that the can was hanging in the No. 5 entry on June 17
and 18, testified that the can was "still" hanging there on June~3 when they recovered the continuous-mining machine (Tr.
190; 215). Since Vickers had testified that he did not know when
the can first appeared in the No. 5 entry (Tr. 155), a witness
with an independent recollection of having seen the can would not
be likely to refer to the can as "still" han~i~g there on
June 13 when no one had claimed to have seen it before June 17.
The only witness called by Clinchfield's attorney who appeared to have an independent recollection of having seen the
reflectorized can in the No. 5 entry was the Virginia mine inspector, Hamrick, who said that he saw the can about 10 a.m. on
June 18, but Hamrick also inspected the area of the 2 Left Section
inby the crosscut where the roof fall occurred and since Clinch-

1842

field's roof-control plan requires that such a "reflectorized
warning device" be hung outby any place from which coal has been
removed by the continuous-mining machine prior to installation
of permanent roof bolts (Exh. C, par. 3(a)), Hamrick could just
as easily have seen a ref lectorized can outby one of the other
face areas, rather than in the No. 5 entry outby the roof-fall
area •. That is especially probable in view of Hamrick's testimony
that he had been asked by Clinchfield's counsel about the can a
considerable period of time after he had been in the mine on
June 18. Moreover, Hamrick said that it would not have occurred
to him to make a notation of having seen the can in his notes
which he probably took because seeing the cans is such a common
occurrence (Summary paragraph No. 19, supra).
If they are such
a common occurrence and make such a slight impression on Hamrick's
mind as not to be noteworthy, it is just as likely that he saw
the can some other place in the mine during the day shift on
June 18 as it is that he saw it in the No. 5 entry where three
other witnesses failed to see the can during the day shift on
June 18 even though they entered the No. 5 entry just as Hamrick
was leaving it (Tr. 293).
On the basis of the above discussion, I find that the preponderance of the evidence fails to support Clinchfield's claim
that a "reflectorized warning device" had been hung in the No. 5
entry prior to the time that the inspector issued imminent-danger
Order No. 2038802 on June 18, 1982.
Clinchfield's brief (pp. 9-11) argues at some length that
Supervisory Inspector Rines cannot support the Secretary's claim
that miners were exposed to the hazards of the unsupported brows
when the continuous-mining machine was being removed from the
roof-fall area. My discussion above has already shown that Sauls
was unwilling to state for certain that he was not exposed to a
possible fall of the unsupported brows when he replaced the pump
and valve on the continuous miner on June 13 (Summary paragraph
No. 15, supra).
The union committeeman, Meade, stated unequivocally that a company official went out from under supported roof
when he was tying ropes to rocks to pull them out of the fall
area (Summary paragraph No. 10, supra).
Clinchf ield is correct in saying that no MSHA personnel were
present when the continuous miner was removed from the roof-fall
area on June 13 and it is true that the inspectors can only speculate about their belief that miners were exposed to the hazards
of the unsupported brows when they were recovering the continuo~s
miner, but the testimony of witnesses Sauls and Meade support a
finding that the brows were unsupported at the time the miner was
recovered and that Clinchfield employees were exposed to those
hazards at the time the miner was recovered.

1843

Judge Koutras' decision, Mathies Coal Co., 4 FMSHRC 1121
(1982), relied upon by Clinchfield on pages 11 and 12 of its
brief is not applicable to the facts in this case because Judge
Koutras did not have witnesses in that case who supported the
inspector's belief that a.violation of section 75.200 had occurred, whereas in this proceeding, there is testimony by at
least two eyewitnesses who support the inspectors' belief that
miners were exposed to the hazards of the unsupported brows when
the continuous miner was being recovered from the crosscut.
Interpretation of Portion of Section 75.200
The final argument made in Clinchfield's brief (pp. 12-14)
is that the violation of section 75.200 alleged by MSHA cannot
be proven because the unsupported brows described in the inspector's order and citation were not in an active working place and
therefore their existence in the mine cannot be considered a violation of the portion of section 75.200 relied on by the inspector. As previously indicated, the portion of section 75.200 relied upon by the inspector reads 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. * * *
Clinchfield states that the definition of "active workings" is
"* * * any place in a coal mine where miners are normally required to work or travel." Clinchfield argues that no miners
were "required to work or travel" anywhere in the vicinity of
the roof-fall area after June 13, 1982, when the continuous
miner was removed from the crosscut. Clinchfield contends that
after the miner was removed on June 13, 1982, the only work
done in 2 Left Section where the roof fall occurred was the moving of the continuous miner to the end of the track where it was
disassembled and taken out of the mine.
Clinchfield argues that
the nearest active working section on June 18 when the order was
issued consisted of the 1 and 2 Right Sections which were 2,000
feet away from the 2 Left Section. Clinchfield also argues that
the mere fact that a preshift examiner came to the No. 5 entry
outby the crosscut on June 17 and 18, 1982, cannot be considered
sufficien~ activity to make the roof-fall area an active working
place because the preshift examiner observed the ref lectorized
can in the No. 5 entry and the breaker posts in the No. 6 entry
and did not enter the crosscut, so that it cannot be said that a
miner was required to travel in the crosscut on June 18 when the
order was issued.
There is conflicting testimony as to how much activity was
in progress on June 18, 1982, when the order was issued. Clinchfield' s Superintendent Hess stated that the continuous miner was

1844

moved to the end of the track on June 16, 1982, and was disassembled and removed from the mine for rebuilding at some point after
June 16 and that active mining did not occur again in that 1 Left
Section until July 17, 1982 (Tr. 263; 267). The inspector and
the union safety committeeman, on the other hand, stated that the
continuous miner removed from the fall area was only one or two
breaks, or 120 feet, away from the fall area on June 18 (Summary
paragraph No. 7; Tr. 136). Moreover, Inspector Coeburn was in
the fall area :on June 22 and he testified that active mining was
in progress only two crosscuts inby the roof-fall area on June 22
(Tr. 128).
Even if one disregards all the conflicting evidence as to
the extent of the activity in 1 Left Section on June 18, 1982,
there is no dispute by anyone as to Vickers' contention that he
performed a preshift examination in the crosscut on both June 17
and 18 and there is no dispute that another person made a preshif t examination on June 18 (Summary paragraph Nos. 11 and 18,
supra). Both preshift examiners took an air reading in the No. 6
entry for the purpose of determining the velocity of the air in
the return entry (Tr. 151; 232). The Commission found in Old
Ben Coal Co., 3 FMSHRC 608, 609 (1981), that an accumulati~of
loose coal existed in "active workings" in circumstances where
the cited area was required to be inspected at least once a week,
was traveled as an escape route, and was rock-dusted periodically.
In its Old Ben decision, the Commission cited two cases in which
the former Board of Mine Operations Appeals had made rulings
about the circumstances which constitute active workings.
In one
of those cases (Mid-Continent Coal and Coke Co., 1 IBMA 250
(1972)), the former Board stated that if only one miner passes
through an area to make an inspection, an accumulation of float
coal dust would be a hazard to him.
Clinchf ield argues that the preshift examiners saw the reflectorized can and did not enter the crosscut and that they were,
therefore, not required to travel in the roof-fall area within
the meaning of the definition of "active workings".
Clinchfield's safety director stated that a possible travelway for the taking of an air reading would have been through the
crosscut in which the roof fall had occurred although he believed
that was not the "easiest legitimate route" (Tr. 232) .
Inspector
Brewer thought that the preshift examiner would just about have
to have traveled through the crosscut to examine the return entry
(Tr. 19). The preshift examiner who checked the 1 Left Section
on the morning of June 18, 1982, did not make an entry about any
danger he may have seen in the roof-fall area and, in the absence
of his testimony, no one knows whether he traveled through the
crosscut or not (Tr. 232). In any event, the continuous miner
was actively engaged in cutting coal on June 2 when the roof .fall
occurred and no decision to bypass the roof fall was made until

1845

after the order was issued on June 18 (Tr. 84-86). Therefore,
at the time the preshift examinations were made, the area where
the roof fall occurred was within the definition of "active
workings" because, as I have shown above, no reflectorized can
existed to warn the preshift examiners that the roof-fall area
was to be avoided and, even if the reflectorized can did exist,
the roof-fall area had not been cleaned up or bolted, and
Clinchfield was obligated under paragraph 19(b) of its roofcontrol plan to install two rows of posts across the crosscut at
the No. 5 entry. As the Commission stated in E~ Paso Rock
Quarries, Inc., 3 FMSHRC 35, 40 (1981):

* * * The 1977 Mine Act imposes a duty upon operators
to comply with all mandatory safety and health standards.
It does not permit an operator to shield itself
from liability for a violation of a mandatory standard
simply because the operator violated a different, but
related, mandatory standard.
* * *
The Commission also held in Penn Allegh Coal Company, Inc.,
4 FMSHRC 1224, 1227 (1982) that a Judge is not bound by the
opinions of any single witness, but should base his legal conclusions "* * * upon the evidence of record considered as a
whole." I have hereinbefore thoroughly reviewed all of the evidence presented by both Clinchf ield and the Secretary and conclude that Clinchfield did violate section 75.200 because it had
left hazardous unsupported brows in the crosscut between the Nos.
5 and 6 entries on the 2 Left Section without supporting them or
otherwise controlling them adequately to protect persons from
falls of the roof or ribs as required by section 75.200 of the
Act. The area was within an active working place and miners were
traveling in the area to make preshift examinations.
The Issue of Whether an Imminent Danger Existed
Alleged Dangering Off
Clinchfield's brief (pp. 15-20) argu~s that the unsupported
brows observed by Inspector Brewer did not constitute an imminent
danger because the crosscut where the brows existed had been
dangered off and no mining activity was in progress on the 2
Left Section. As to Clinchfield's claim that the area had been
dangered off, I incorporate in this portion of my decision the
discussions on pages 15-16 and 18-20, supra, in which I found
that neither the reflectorized can nor the timber with the word
"Danger" written on it ever existed at the intersection of the
No. 5 entry and the crosscut in which the unsupported brows were
observed by the inspector.
Assuming, arguendo, that the reflectorized can and timber
had been erected by someone at sometime, the fact remains that

1846

they could not be found by MSHA's three witnesses or Clinchfield's
own safety director on June 18, 1982, when the imminent-danger
order was issued. A warning device which cannot be found by four
people serves no purpose and cannot be used in support of a claim
that the unsupported brows had been dangered off to prevent persons from going into the crosscut where the brows could fall upon
them. Also, as I have previously explained on pages 16-17, supra,
Clinchfield was required by paragraph 19(b) of its roof-control
plan to install two rows of posts across the entrance to the rooffall area at the No. 5 entry approach and it had failed to do so.
Moreover, even if a reflectorized can and a "Danger" timber had
been placed at the intersection of the No. 5 entry and the hazardous crosscut, Lt was Clinchfield's responsibility to assure that
those warning devices continued to remain in a conspicuous place
where they could be seen by persons who might have gone into the
crosscut.
The excerpt on page 18 of Clinchfield's brief to the testimony of its witness Vickers who testified that a reflectorized
can is "* * * just like a stop sign is to a driver out on the
highway" has no force and effect because a stop sign on the highway, which a motorist cannot find, does not warn a motorist of a
dangerous intersection any more than a can, which a .miner cannot
find, warns a miner of a hazard in a coal mine.
For the reasons
given above, I must reject Clinchfield's defense to the issuance
of the imminent-danger order to the extent that its defense is
based on the claim that it had properly dangered off the rooffall area where the imminent danger existed.
Removal or Nonexistence of Persons Did Not Eliminate Imminent Danger
The remaining arguments raised in Clinchfield's brief (pp.
19-20) in support of its claim that no imminent danger existed
in the roof-fall area reveal a basic misunderstanding on Clinchf ield' s part as to what constitutes an imminent danger under the
Act.
That misunderstanding is most clearly expressed on page 20
of Clinchfield's brief where it is contended that there was "* * *
no activity present in the area which could constitute an imminent danger at the time the 107(a) order was issued".
It is clear
from the foregoing quotation that Clinchfield believes that no
imminent danger can be found to exist unless at least one person
is actually engaged in some type of work so close to the imminent
danger that he will probabiy be killed before the imminent danger
can be abated.
Clinchfield is confusing the nonexistence of persons in the vicinity of the imminent danger with the nonexistence
of the hazard which produces the imminent danger.
Clinchfield's confusion is obvious from the facts in the
cases which it cites in support of its argument that the removal
of persons from the imminent danger abates the imminent danger.
On page 19 of its brief, e.g., Clinchfield cites Old Ben Coal Co.,

184'7

6 IBMA 256 (1976), in which the former Board of Mine Operations
Appeals upheld a judge's decision finding that no imminent danger
existed in a situation in which an inspector had issued an imminent-danger order because he had seen a miner, before the order
was issued, riding on top of a locomotive with his legs hanging
over the side of the locomotive.
The Board agreed with the judge
that the imminent danger no longer existed at the time the order
was written because the miner had jumped off the locomotive.
Clinchfield claims that the Board's rationale in the Old Ben
case applies to the facts in this case because no actual coal
production was in progress and no one had any reason to be in the
crosscut where the unsupported brows existed.
The fallacy in
Clinchf ield' s argument is' that when the miner jumped off the locomotive in the Old Ben case, he eliminated the existence of the
imminent danger at the time he jumped off the locomotive because
the imminent danger was coexistensive with the miner's presence
on the locomotive, whereas in this proceeding, the imminent danger
continued to exist after the inspector wrote his order, regardless
of the fact that no person was observed by the inspectors to be
standing under the unsupported brows.
Thus, nonexistence of
persons in the roof-fall area did not automatically abate or
terminate the existence of the imminent danger.
Another case which Clinchfield mistakenly cites in support
of its claim that no imminent danger existed is Judge Boltz's
decision in CF & I Steel Corp., 3 FMSHRC 99 (1981), in which
Clinchf ield states that the judge vacated an imminent-danger
order "* * * because prior to its issuance the operator had removed miners from the area, ceased production work in the affected section and no power was energized in that section"
(Brief, p. 20).
Judge Boltz himself explained the difference
between abating an imminent danger and removal of persons from
the proximity of the imminent danger in his decision in another
C F & I case, 3 FMSHRC 2819 (1981) as follows (at p. 2823):
I would characterize the holding of the first
cited case somewhat differently.
Pittsburgh Coal
Company, supra, [2 IBMA 277 (1973)] ·stands for the
proposition that the presence of 1.5 volume per
centum or more of methane will support the issuance
of an imminent danger withdrawal order. Id. at 277,
279.
The Valley Camp Coal Company, supra; [l IBMA
243 (1972)] stands for the proposition that an order
of withdrawal can properly be issued if no miners
are in the mine because an order of withdrawal not
only takes the miners out of the mine, but also keeps
them out until the danger has been eliminated.
Id.
at 248.
In Secretary of Labor, Mine Safety and
Health Administration (MSHA) v. C F & I Steel Corporation, supra, [3 FMSHRC 99 (1981)] I concluded that

1848

the danger presented by the accumulation of methane
had been eliminated. That is not the case with the
matter at hand.
The accumulation of methane existed
on May 8, '1980, having been only recently discovered,
could reasonably be expected to cause death or serious physical harm before the danger posed had been
eliminated. No abatement was in progress.
Therefore,
I find that the order of withdrawal is valid and
shoul'd be affirmed.
Clinchfield also mistakenly cites Judge Koutras' decision
in Climax Molybdenum Co., 2 FMSHRC 2976 (1980), in support of
its claim that removal of miners from a hazardous area eliminates
or abates an imminent danger.
It is true that Judge Koutras
vacated an imminent-danger order in the Climax case but he vacated
the order primarily because the inspector was not sure that. the
exposed electrical connections cited in the order would have
shocked or killed any person who might have touched them--not
because the miners closest to the wires were 500 to 600 feet from
the alleged imminent danger (2 FMSHRC at 2980).
In its reply brief (pp. 2-11), Clinchfield cites additional
cases in support of the same arguments which I have rejected
above.
For example, on page 7 of its reply brief, Clinchfield
quotes from the former Board's decision in Eastern Associated
Coal Corp., 2 IBMA 128 (1973), in which the Board stated at page
137, "* * *a condition or practice cannot be imminently dangerous if the specific and usual mining activity can safely continue in the area during (or prior to) the abatement process".
Clinchfield then argues as follows (Brief, p. 7):
* * * In the present case, the condition was abated
through the dangering off of the area in question,
but it could also have been abated through the resumption of the normal mining operations. Either
way, miners were protected against any reasonable
expectation that the condition could cause death or
physical harm to a miner."
Neither of the conclusions made by Clinchfield in the above
quotation is correct.
The hazardous condition created by the .
existence .of the unsupported brows was not eliminated by Clinchfield' s alleged dangering off of the roof-fall area. Again,
assuming arguendo, that the roof-fall area had been dangered
off by the erection of a warning device, that action had no
salutary effect whatsoever on the hazardous nature of the unsupported brows. They would have remained just as likely to
fall on any person entering the area after the alleged warning
device was erected as they would before the warning device was
erected.

1848

In fact, Clinchfield never did take any action whatsoever
to abate the imminent danger by installing supports in or under
the brows.
Supervisory Inspector Rines testified that MSHA
normally follows the provisions of section 107(a) which states
that an imminent-danger order is to remain in effect "* * * 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." Rines said that
Clinchfield never did abate the imminent danger cited in the
order, but they terminated it at Clinchfield's request after
the inspectors had personally participated in erecting posts
and nailing boards on the posts to make certain that no miners
could enter the roof-fall area.
As for Clinchfield's claim that the roof-fall area would
have been supported if a decision had been made to continue mining in that area, it is obvious that no one could have started
cutting coal under the brow in the No. 6 entry without first
installing permanent roof supports to assure that the brows
would not fall.
Since the roof and brows were too hazardous
for normal mining operations to begin before the brows and roof
had been supported, the former Board's statement in the Eastern
Associated case, supra, does not apply to the facts in this case
because the "usual mining activity" could not have been carried
on while the mine roof and brows were being restored to an
acceptable condition of safety.
Another case which Clinchfield cites in its reply brief
(P. 9) is Judge Carlson's decision in Western Slope Carbon, Inc.,
5 FMSHRC 795 (1983), in which Clinchfield claims that Judge
Carlson held that before an accumulation of float coal dust can
be considered to be an imminent danger, the coal dust must be in
suspension. Judge Carlson merely noted that both suspension of
the dust and a spark would all have to be present before an explosion could occur. The primary reason that the judge failed
to find occurrence of an imminent danger was MSHA's lack of proof
as to the existence of an ignition source (5 FMSHRC at 799).
Additionally, it should be noted that the court in Freeman Coal
Mining Co. v. Interior Bd. of Mine Op. App~, 504 F.2d 741 (7th
Cir. 1974), specifically rejected the operator's argument in
that case that a finding of imminent danger could not properly
be made in .the absence of a suspension of float coal dust in
the air, an ignition source, and a concentration of methane.
Section 3(j) Definition and "Probable As Not" Gloss
Clinchfield's initial brief (p. 15) does correctly quote
the definition of an imminent danger given in section 3(j) of
the Act, i.e., "'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." The facts given in
surnrnary paragraph Nos. 2, 4-8, and 10, supra, support my conclusion that an imminent danger existed in the roof-fall area between Nos. 5 and 6 entries on June 18, 1982, when imminent-danger
Order No. 2038802 was issued.
The unsupported brows could reasonably have been expected to cause death or serious physical harm
before such brows could be adequately supported.
The former Board augmented the definition of section 3(j) in
its decision in Freeman Coal Mining Co., 2 IBMA 197 (1973), as
follows (at p. 212) :
[w]ould a reasonable man, given a qualified inspector's
education and experience, conclude that the facts indicate an impending accident or disaster, threatening to
kill or to cause serious physical harm, likely to occur
at any moment, but not necessarily immediately? The
uncertainty must be of a nature that would induce a
reasonable man to estimate that, if normal operations
designed to extract coal in the disputed area proceeded,
it is at least just as probable as not that the feared
accident or disaster would occur before elimination of
the danger. * * *
The Seventh Circuit affirmed the Board's definition and finding
of an irnrninent danger in the Freeman case previously discussed
above. Therefore, the Board's expanded definition of irnrninent
danger is a part of the present law pertaining to irnrninent danger.
In Pittsburg & Midway Coal Mining Co., 2 FMSHRC 787 (1980), the
Cornrnission affirmed a judge's decision finding existence of an
irnrninent danger.
In doing so, however, the Commission made the
following observation (at p. 788):

* * * In this regard, we note that whether the question of imminent danger is decided with the "as probable as not" gloss upon the language of section 3(j),
or with the language of section 3(j) alone, the outcome here would be the same. We therefore need not,
and do not, adopt or in any way approve the "as probable as not" standard that the judge applied. With
respect to cases that arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.,
we will examine anew the question of what conditions
or practices constitute an imminent danger. * * *
I am not aware of any case in which the Commission has expressed
a further opinion as to the definition of imminent danger, but I
believe that my findings of an irnrninent danger in this proceeding would be supported by the preponderance of the evidence regardless of whether the original language of section 3(j} is
used or the ''as probable as not" standard is applied.
Inspector

1851

Brewer specifically applied his education and experience as a
coal miner and as an inspector in making his determination that
an imminent danger existed. He began his discussion by noting
that the area had not been dangered off, that he had to consider
the area as an active working place because the miners were still·
working on the continuous miner which had been removed from the
roof-fall area in order for the miners to work on the section
for any purpose, that he felt the brows posed an imminent hazard
to anyone who might go into the roof-fall area (Tr. 17), that he
knew there had been three unintentional roof falls in the Hurricane Creek Mine in the last year which had covered up continuous
miners, and that with that background of knowledge, the existence of unsupported, overhanging, arching brows triggers the
feeling, "if you're a coal miner", that an imminent danger
exists (Tr. 18). The inspector further testified that he issued
the imminent-danger order to assure that the only miners who
would be sent into the roof-fall area would be going there solely to correct the hazards associated with the existence of the
unsupported brows (Tr. 20).
On cross-examination the inspector stated that if normal
mining operations had resumed, a section foreman, a continuousminer operator, a helper, and a shuttle-car operator, would be
exposed to the hazards caused by the unsupported brows (Tr. 49).
Although the inspector agreed that no actual mining operations
were in progress in the 2 Left Section on the day the order was
issued, he said that there was no mining activity at that time
because the continuous miner was torn up and the miners were
waiting to get an operative machine on the section. He further
stated that his concern was that the continuous miner might be
repaired and that active mining would occur by that evening (Tr.
50) •

As a matter of fact, when Inspector Coeburn was in the rooffall area on J~ne 22, he stated that active mining was in progress only two crosscuts inby the roof-fall area and Mine Superintendent Hess agreed that the 2 Left Section had been developed
inby the roof-fall area and that the decision to bypass the rooff all area had been made only after the imminent-danger order was
issued (Tr. 128; 266; 268).
The preponderance of the evidence, therefore, shows that it
was just as probable as not that the unsupported brows would
have fallen on one or more miners and would have injured or
killed them if normal mining activities had been resumed before
the brows were properly supported. Although Clinchfield argues
in its reply brief (p. 10) that the first action that would have
been taken if normal mining activities had been resumed in the
roof-fall area would have been to support the roof properly,
that is not an eventuality which the inspectors could leave to
doubt.
It is a fact that the two rows of posts required by

1852

paragraph 19(b) had not been installed and the inspectors could
find no warning device required by paragraph 3(a) of the plan.
As the court stated in Old Ben Coal Corp. v. Interior Bd. of
Mine Op. App., 523 F.2d 25 (7th cir. 1975), the inspector cannot
wait until the danger is immediate because then no one could
stay in the mine to correct the hazardous conditions which he
has found (523 F.2d at 34).
For the reasons hereinbefore given, I find that imminentdanger Order No. 2038802 was properly issued on June 18, 1982,
under section 107(a) of the Act and it will hereinafter be
affirmed.
Docket No. VA 83-24
The Issue of What Civil Penalty Should Be Assessed
Penalty Proceedings Before Commission and Judges Are De Novo
Since I have already found in the preceding portion of this
decision that a violation of section 75.200 occurred because
Clinchf ield had failed to support the brows in the crosscut between the Nos. 5 and 6 entries in the 2 Left Section after the
continuous-mining machine was recovered from the roof-fall area
on June 13, 1982, it is necessary that I assess a civil penalty
pursuant to the six criteria which are listed in section llO(i)
of the Act (Tazco, Inc., 3 FMSHRC 1895 (1981)). The parties
entered into stipulations which govern two of the criteria.
First, it was stipulated that imposition of a civil penalty
would not affect Clinchfield's ability to continue in business.
Second, it was stipulated that Clinchfield is a medium-sized
company and that the Hurricane Creek Mine here involved is a
medium-sized mine.
Respondent's initial brief (pp. 21-23) requests that the
Secretary's special assessment proposed under 30 C.F.R. § 100.5
be vacated if I should find that there is any merit to the Secretary's allegation that a violation of section 75.200 occurred.
When an operator requests a hearing before one of the Commission's
administrative law judges in a civil penalty proceeding, the proceeding is de novo and the judge is required to assess a penalty
under the.sIX criteria listed in section llO(i) of the Act without giving any consideration to the Secretary's proposed penalty
or the procedures utilized by the Secretary to arrive at his
proposed penalty (Rushton Mining Co., 1 FMSHRC 794 (1979);
Shamrock Coal Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 1
FMSHRC 984 (1979); u. s. Steel Corp., 1 FMSHRC 1306 (1979); .
Pittsburth Coal co., 1 FMSHRC 1468 (1979); Peabody Coal Co., 1
FMSHRC 1 94 (l979); Co-Op Mining Co., 2 FMSHRC 784 (1980); and
Sellersburg Stone Co., 5 FMSHRC 287 (1983)).

1853

Inasmuch as it is necessary for me to make findings concerning the four criteria as to which the parties entered into
no stipulations, I shall consider the merits of Clinchfield's
arguments pertaining to those four criteria without expressing
any opinion as to the merits of the findings made by the Secretary in reaching his proposed penalty.
The Secretary's brief requests that I assess the civil
penalty of $3,000 proposed by the Secretary in Docket No. VA
83-24, but the Secretary supports the proposed penalty by relying upon the evidence introduced in this proceeding. Therefore,
it is appropriate to consider the Secretary's arguments also,
but those arguments will likewise be evaluated without giving
any opinion as to whether I agree or disagree with the findings
made by the Secretary in arriving at his special assessment of
$3,000.
History of Previous Violations
Neither Clinchfield's initial brief (pp. 21-23) nor its
reply brief (p. 12) specifically discusses the criterion of
Clinchfield's history of previous violations. The Secretary's
brief (p. ,16) asserts that the criterion of history of previous
violations was a matter of stipulation, but the only transcript
reference the Secretary makes in support of that assertion is
to page 140 of the transcript where Clinchfield's counsel did
not object to the introduction of Exhibit 5 which is a computer
printout listing prior violations at the Hurricane Creek Mine.
Exhibit 5 shows that Clinchfield has previously violated section 75.200 on five occasions prior to June 18, 1982, when the
violation here involved was cited. One of those prior violations was assessed under MSHA's single penalty assessment procedure and the penalty paid was, therefore, only $20. Section
100.3(c) states that previous violations assessed under the
single penalty provisions of the regulations will not be used
in evaluating the criterion of history of previous violations,
but as I indicated above, penalty assessments in cases before
the judges are de novo and I am not bound: by the Secretary's
penalty procedures described in section 1·00. 3 of the regulations.
Moreover, it should be noted that section llO(i) of the Act
appears to give the Secretary a considerable amount of flexibility in_ proposing penalties, whereas section llO(i) specifi-·
cally provides that the Commission "shall" consider all six
criteria in determining civil penalties.
I consider violations of section 75.200 to be among the
most serious violations which can occur in coal mines because
roof falls still account for a large number of deaths in coal
mines every year. An operator should conscientiously follow
its roof-control plan and all other provisions of section 75.200
at all times.
Clinchfield's history of five violations of section 75.200 may not be passed over lightly. Therefore, I find

1854

that any penalty assessed under the other five criteria should
be increased by $400 under Clinchfield's history of previous
violations.
Negligence
As to the criterion of negligence, the Secretary's brief
(p. 16) claims that Clinchfield showed a high degree of negligence in ~failing to support the brows.
The Secretary argues
that Clinchfield could have bolted the unsupported brows prior
to removal of the continuous miner and notes that 5 days after
the removal of the miner, the brows were still unsupported when
the roof-fall area was examined by MSHA's inspectors and no
danger signs could be found.
Clinchfield's reply brief (p. 12)
argues that the miners were not exposed to the unsupported brows
when they recovered the continuous miner.
In its initial brief (pp. 21-22), Clinchfield argues that
it was not negligent because it had posted a warning device
(reflectorized can) in accordance with its roof-control plan.
Clinchfield cites the testimony of Busch, Cross, Vickers, and
Hamrick in support of its contention that the reflectorized
can had been hung at the intersection of the No. 5 entry and
the crosscut in which the unsupported brows existed, but I have
heretofore given on pages 15-16 and 18-20, supra, my reasons
for finding that the reflectorized can and timber with the word
"Danger" written on it did not exist. Clinchfield additionally
argues that if I should find that the designated area was not
properly dangered off, I should take into consideration that
such failure to danger properly was the result of a misinterpretation of the regulations, rather than an indication of
negligence for which Clinchfield should be severely penalized.
It is difficult to understand why Clinchfield was as little
concerned about supporting the brows as the evidence in this
case indicates.
I have already alluded to the fact that even
if a reflectorized can had been hung at the intersection of the
No. 5 entry and the crosscut containing the unsupported brows,
it was incumbent upon Clinchfield's management to assure itself
that the "warning device" continued to remain situated where it
could be seen by anyone coming into the roof-fall area to make
a preshift examination.
The evidence clearly shows that only
one preshift examiner made any notation about the dangering off
of the roof-fall area and he did not make that notation until
June 17, 1982, or 4 days after the continuous miner was removed.
from the crosscut. The next morning, June 18, three MSHA witnesses and Clinchfield's safety director could not find that
"warning device" even though MSHA's witnesses specifically
looked for some sort of warning to advise miners as to the
hazardous nature of the unsupported brows.
,.

The record does not contain any explanation to show why
Clinchfield's mine foreman or mine superintendent would have

1855

'

been unaware of the hazardous nature of the roof-fall area in
view of the fact that two employees had been killed there by
the roof fall on June 2. Brows which were still unsupported on
June 18, or 16 days after the roof fall, cannot be considered
to be of no consequence, particularly since Clinchfield did not
decide to bypass the hazardous roof-fall area until June 18
after the imminent-danger order had been issued (Tr. 266).
Also, as I have previously noted on pages 16-18, supra, Clinchfield's roof-control plan required it to install two rows of
posts outby the roof-fall area since it had not gone in and
cleaned up the crosscut. Even if one accepts Clinchfield's
argument that management had not decided whether to bypass the
roof-fall area entirely or to go in and support the area and
continue mining there, that is still no reason for Clinchfield
to leave the area without at least installing the two rows of
posts which are required to be installed outby a roof-fall area
if the area has not been cleaned up (Exh. C, par. 19(b)).
In light of the above discussion, I can find no mitigating
circumstances to soften a conclusion as to Clinchfield's negligence in failing to support the hazardous brows or, in the alternative, at least making certain that the area was continually marked by a highly visible warning device or two rows of
posts. The preponderance of the evidence supports a finding
that Clinchf ield was grossly negligent in allowing the violation
of section 75.200 to occur. Therefore, I find that $2,000 of
the penalty should be assessed under the criterion of negligence.
Gravity
The Secretary's brief (pp. 15-16) argues, as to the criterion of gravity, that the violation was very serious.
The
Secretary states that the miners doing recovery work on the continuous miner were exposed to the unsupported brows, that one of
Clinchfield's division superintendents went out from under supported roof when he was wrapping a rope around rocks to drag
them from the roof-fall area, and that the brows were left unsupported on June 13 after the continuous: miner was recovered,
thereby exposing any miner who might pass. through the crosscut
to the immediate hazard of the unsupported brows.
Clinchfield's reply brief (p. 12) claims that the miners
were not exposed to the unsupported brows when they were recovering the continuous miner on June 13 and that the Secretary
has improperly alleged that the violation existed on June 13
because the inspectors were not present when the continuous
miner was being recovered and therefore can only speculate as
to what occurred on June 13. It must be borne in mind that the
violation of section 75.200 is for not supporting the brows or
otherwise controlling them adequately to protect persons from
falls of the roof or ribs.
The violation began to exist on

1856

June 13 when the continuous miner was recovered and continued
to exist until June 22 when the roof-fall area was physically
barricaded _to prevent anyone from entering the area.
I am, of
course, interpreting section 75.200 to mean that the physical
barricades were sufficient to control tha area so as to protect
persons from a fall of the unsupported ribs.
The evidence conclusively shows beyond any doubt that the
brows began to .be unsupported on June 13 because Clinchfield's
witnesses stat~d that no bolting was done in the roof-fall area
except with the stoper, that all bolting was done before the
continuous miner was recovered, and that no bolting was done
after the miner was removed from the crosscut (Tr. 189; 191;
209).
Since no witness has been able to refute the inspector's
finding that the brows were unsupported, the violation of section 75.200 existed on June 13 and continued to exist up to
June 22 when the inspectors and Clinchfield's employees barricaded the area to prevent persons from entering the area.
I have already discussed the fact that the crosscut was 20
feet wide and that the overhanging brows extended out from the
ribs toward the center of the crosscut for a distance of up to
9 feet from both the right and left sides of the crosscut. In
such circumstances, anyone installing parts on the side of the
continuous miner, which was from 10 to 11 feet wide, was necessarily exposed to the hazard of having the unsupported brows
fall on him (Tr. 208).
Sauls' testimony shows that he was not
positive but that he was exposed to the hazards of the unsupported brows (Tr. 207). Busch stated that he considered the
fact that the left brow might fall at the very moment he was
tramming the continuous miner from the roof-fall area (Tr. 203204). Finally, Meade testified that he saw one of Clinchfield's
officials go inby all supports to attach ropes to rocks so that
they could be pulled from the roof-fall area (Tr. 132).
The hazards associated with the unsupported brows cannot
be divorced from a realization that they were the remaining portion of roof surrounding an area of roof :which had fallen so
suddenly on June 2 that two miners were killed before they could
escape the falling rock.
There was still a crack on the left
rib which was sufficiently obvious to be of concern to the
miner who was tramming the machine out of the fall area on
June 13. The evidence, therefore, supports a finding that the
unsupported brows continued to pose a threat to anyone who might
pass through the crosscut.
Clinchfield argues in its initial brief (p. 22) that even
if I find that the brows constituted a hazard, that it would be
improper to accept Inspector Brewer's evaluation to the effect
that four miners (operator and helper on continuous miner,
shuttle car operator, and section foreman) would have been exposed to injury or death if the brows had fallen.
Clinchfield

1857

claims that no miners would have gone into the roof-fall area
for any purpose other than to support the brows properly if
Clinchfield had decided to continue mining from the face side
of the roof-fall area and that if normal mining activities had
been resumed, the number of people exposed would have been only
the number of miners required to support the roof in accordance
with Clinchfield's roof-control plan.
It is possible, of course, that the number of miners who
would have been required to support the roof p~operly would involve more than the operator and helper on the roof-bolting
machine, but that is a matter which was not discussed during
the hearing.
Consequently, there is no evidence to show that
the inspector properly concluded that if Clinchfield had succeeded in repairing the continuous miner by the evening shift
on June-18, its employees would have trammed the continuous
miner back into the crosscut and resumed cutting coal without
giving any consideration at all to the fact that the area of
the crosscut nearest to the No. 6 entry was completely unsupported and the fact that a 9-foot square area of roof immediately outby the face of the No. 6 entry was not bolted or otherwise supported.
It is a fact that the continuous miner was so badly damaged
by the roof fall that it had to be entirely removed from the
mine for rebuilding in Clinchfield's central shop. Therefore,
the most likely injury or death which would have occurred on
June 18, if the brows had fallen, would have been to cause injury to a preshift examiner who might have passed through the
crosscut for the purpose of taking an air reading to compute air
velocity in the No. 6 return entry. When the continuous miner
was recovered on June 13, only Sauls was exposed while the pump
and valve were replaced, and when the actual tramming of the
miner began, only Busch was operating the controls. When the
rope was being tied to rocks inby any roof supports, only
Clinchfield's mine official was exposed. The preponderance of
the evidence,. therefore, supports a finding that any fall of the
brows on June 13, or thereafter, up to a~d including the time
the violation was cited on June 18 would.have been one person.
Nevertheless, if the brows had fallen, they would have been likely to kill anyone on whom they might have fallen.
In such circumstanc~s, the violation must necessarily be considered to be
very serious and I find that $1,000 of the penalty should be
assessed under the criterion of gravity.
Good-Faith Abatement
The sixth and final criterion remaining to be considered
is whether Clinchfield made a good-faith effort to achieve rapid
compli~nce after the citation was written.
The Secretary's
brief (p. 16) alleges that "[n]o good faith was shown concerning

1858

abatement of the violation." Clinchfield's reply brief does not
discuss good-faith abatement, but in its initial brief (p. 23),
Clinchfield argues that it did demonstrate good faith in abating
the violation because it actively participated in physically constructing a barricade on each side of the roof-fall area consisting of both timbers and boards, together with erecting "Danger"
signs, to make certain that no person would go into the rooffall area.
Clinchfield also states that it made the decision on
June 18, after the order was written to abandon the affected portion of the No. 6 entry. Clinchfield contends that the aforesaid
actions should be given consideration because, although the order
was not terminated until December 6, 1982, Supervisory Inspector
Rines agreed that all the actions summarized in the order of
termination as reasons for terminating it had been taken by
June 22, 1982 (Tr. 104-105).
When inspectors issue orders, they normally withdraw personnel from the area of danger and the orders do not specify a time
within which the hazards have to be corrected because it is
assumed that the operator's having to withdraw personnel from
the area of danger will be a sufficient incentive to cause the
operator to take immediate corrective action. Since the violation here involved was written as part of an imminent-danger
order, the inspector did not insert any time in his order to.
show when the violation of section 75.200 was required to be
abated (Exh. 1, p. 1). Consequently, even though Clinchfield
did nothing to barricade the roof-fall area between June 18 and
June 22 when the barricades were constructed, it must be borne
in mind that the order was written on a Friday and the barricades
were constructed on a Tuesday.
In the interim between Friday and
Tuesday, the area was dangered off by the tags hung outby the
fall area by Inspector Brewer.
In such circumstances, it can
hardly be found that Clinchfield showed a lack of good faith in
abating the violation because there may have been some understandable confusion in the minds of Clinchfield's management as
to what action it needed to take after the area had been dangered
off by the inspector's imminent-danger order.
For the foregoing reasons, I find th~t Clinchfield showed
good faith in abating the violation by agreeing with MSHA's personnel that physical barricades should be constructed despite
the fact that Clinchfield's roof-control plan required the construction of only two rows of timbers outby the roof-fall area.
The fact that Clinchfield's management had decided to bypass the
No. 6 entry, rather than continue mining from the face side where
the roof-fall had occurred, is another reason to accept Clinchfield' s argument that it was not required to take any action toward abating the violation other than agreeing to construct the
physical barricades on each side of the roof-fall area on June 22.

1858

It has always been my practice neither to increase nor decrease a penalty otherwise assessable under the other criteria
when I find that an operator has demonstrated a good-faith effort
to achieve rapid compliance. A penalty is increased if the operator fails to show good-faith abatement and is decreased if the
operator is able to demonstrate that he took some extraordinary
action in achieving rapid compliance. Since I have found that
Clinchfield made a good-faith effort to achieve rapid compliance,
the penalty otherwise assessable in this proceeding will not be
increased or decreased under the criterion of good-faith abatement.
Total Assessment
By way of summary, a medium-sized operator is involved, payment of penalties will not cause it to discontinue in business,
there was a somewhat adverse history of previous violations of
section 75.200, the violation was associated with gross negligence, the violation was very serious, and there was a goodfaith effort to achieve rapid compliance.
The operator's size
was taken into consideration in indicating that a penalty of
$400 would be assessed under the criterion of history of previous violations, that $2,000 would be assessed under the criterion
of negligence, and that $1,000 would be assessed under the criterion of gravity. Therefore, a total penalty of $3,400 will
hereinafter be assessed for the violation of section 75.200
alleged in Order and Citation No. 2038802 dated June 18, 1982.
WHEREFORE, it is ordered:
(A)
Clinchfield Coal Company's application for review of
Order No. 2038802 filed on July 19, 1982, in Docket No. VA 82-51R is dismissed and Order No. 2038802 dated June 18, 1982, is
af firrned.
(B)
Clinchfield Coal Company shall, within 30 days from
the date of this decision, pay a civil penalty of $3,400 for the
violation of section 75.200 alleged in O~der and Citation No.
2038802 dated June 18, 1982.

~C.J¥fl

Richard C. Steffey
~
Administrative Law Judge
Distribution:
Fletcher A. Cooke, Esq., Clinchfield Coal Company, P. 0. Box
4000, Lebanon, VA 24266 (Certified Mail)
David E. Street, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

1860
yh

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

,v.
KENNECOTT MINERALS COMPANY,
UTA~ COPPER DIVISION,
Respondent

OCT 171983

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-393-M
A/C No. 42-00149-05017 F
Utah Copper Division

.

DECISION
Before: Judge Morris
The secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges respondent Kennecott
Minerals Company with violating Title 30, Code of Federal
Regulations, Section 55.9-20, a safety regulation promulgated
under the Federal Mine Safety and Health Act, 30 u.s·.c. S 801
et seq. (the "Act").
A hearing on this case and related cases involving the
parties commenced in Salt Lake City, Utah on September 20, 1983.
At the hearing the petitioner moved to amend his proposed
civil penalty by reducing it to $700 from $1,000.
As grounds therefor the petitioner states the negligence of
the operator was less than originally assessed. (Tr. 8).
In view of the amendment respondent moved to withdraw its
notice of contest. (Tr. 9-10).
For good cause shown and pursuant to Commission Rule 29
C.F.R. 2700.11 the motions are granted and I enter the following:
ORDER
1. Citation 576293 and the proposed penalty, as amended, in
the amount of $700, are affirmed.
2. Respondent is ordered to pay said sum within 30 days of
the date of this decision.

Law Judge

1861

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
EARNEST GADDY,
Complainant

GCT 19 l98a

DISCRIMINATION PROCEEDING
Docket No:

CENT 81-258-DM

(MD 81-83)

v.
ANCHOR STONE COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Moore

The parties have reached a settlement in the above that
is satisfactory to each.
I approve the settlement.
Respondent is accordingly ORDERED to pay forthwith the
sum of $7, 436. 86, to ~ir ~ .~Gaady. The case is DISMISSED.

c
0odj~.r
c.

~

Charles
Moore, Jr.,
Administrative Law Judge
Distribution:
Mr. Earnest R. Gaddy, 136 No. 108th East Avenue, Collinswood,
OK 74021 (Certified Mail)

Charles S. Plumb, Esq.,. Doerner, Stuar~, Saunders, Daniel & .
1200 Atlas Life Building, Tulsa, OK 74103
(Certified Mail)

Anderson~

Ronnie A. Howell, Esq., Office of the Solicitor, U.S. Deoartment of Labor, 555 Griffin Square, Dallas, TX 75202
(Certified Mail)

1862

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

OCT 19 8

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-246
A. C. No. 15-12624-03503

v.
No. 1 Mine

R.F.H. COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on October 13,
1983, in the above-entitled proceeding a motion for approval of
settlement. Under the settlement agreement, respondent would
pay civil penalties totaling $10,000 instead of the penalties
totaling $47,580 proposed by the Mine Safety and Health Administration.
There are unique circumstances which warrant the approval
of greatly reduced penalties in this proceeding. The No. 1 Mine
was operated by five members of a single family. On January 20,
1982, four of the family members and three employees were underground and the remaining member of the family was on the surface
of the mine when an enormous explosion occurred at the working
faces.
The explosion was propagated to the surface of the mine
and the force of the explosion was so great that it killed all
seven persons working underground and completely destroyed or
considerably damaged all mining equipment in its path, including
equipment on the surface of the mine.
Respondent's owners are
the widows of the four family members who were killed in the explosion with the exception of one owner who lost her brother and
three uncles in the tragedy.
Financial data submitted by respondent's counsel indicate
that the ~ne had no taxable income in the last year of its operation.
The mine in which the explosion occurred has been permanently abandoned and sealed and the corporation has no inten~
tion of reentering the coal business at any time in the future.
In such circumstances, the pay~ent of civil penalties amounting
to $10,000 will undoubtedly be adequate to serve as a deterrent
against future violations of the mandatory health and safety
standards as intended by the Federal Mine Safety and Health Act
of 1977. The untimely death of four members of the same family,
the oldest of whom was only 39 years of age, will likewise re~
main as a permanent and painful memory for all persons involved.

1863

Section llO(i) of the Act requires that six criteria be used
in determining civil penalties. One of the six criteria is whether the payment of penalties will cause the operator to discontinue in business. Although respondent has already ceased to
operate a coal business, I. believe that the criterion of whether
payment of penalties would cause an operator to discontinue in
business is intended for application to factual GOnditions such
as have been shown to exist in this proceeding.
The motion for approval of settlement has proposed an allocation of the $10,000 in settlement penalties among the eight
violations alleged in the pertinent orders and citations in a
manner which is appropriate if one takes into consideration the
other five criteria listed in section llO(i) of the Act.
According to MSHA's report of the underground explosion
which occurred on January 20, 1982, the cause of the explosion
was the firing of an explosive charge in the No. 6 entry which
blew flames into the No. 5 entry in which coal dust was still in
suspension from a prior explosives shot. MSHA's investigators
found reason to believe that an inadequate amount of rock dust
had been applied outby the entry in which the dust explosion
occurred because the expl9sion was propagated from the face area
of the mine clear to the surface of the mine. MSHA also found
that a contributing factor to the explosion was respondent's
failure to erect brattice curtains to within 10 feet of the working faces.
Additional contributing factors were omission of
stemming materials in the boreholes and insertion of excessive
·quantities of explosives in each borehole.
One of the violations pertained to failure to store explosives in the proper manner and place, but since the improperly
stored explosives did not have anything to do with the explosion
which occurred.on January 20, 1982, MSHA did not recommend a
large penalty for that alleged violation. Likewise, the alleged
violation pertaining to the existence of cigarettes, cigarette
lighter~, and cigarette butts in the mine was not assigned a
large penalty because there was no evidence that a lighted cigarette had contributed to the cause of the explosion. The motion
for approval of settlement has appropriately allocated the largest portions of the settlement penalties to the alleged violations whicp seem to have contributed most to the cause of the
explosion.
The above discussion shows that MSHA appropriately evaluated
the two criteria of gravity and negligence in determining its
proposed penalties. MSHA also considered the criterion of whether the operator showed a good-faith effort to achieve rapid
compliance by noting that all of the alleged violations were
abated when the respondent permanently abandoned and sealed the
mine.

1864

As to the criterion of the size of respondent's business,
the proposed assessment sheet in the official file shows that
the mine only produced 3,364 tons of coal on an annual basis.
That amount. of production warrants only a zero assignment of
penalty points under the penalty formula described in 30 C.F.R.
§ 100.3.
The sixth and final criterion to be considered is respondent's history of previous violations. The proposed assessment sheet indicates that respondent was cited for only one violation of the mandatory health and safety standards prior to the
writing of the citations and orders involved in this proceeding.
That is a very favorable history of previous violations and warrants assignment of zero penalty points under section 100.3(c)
of the penalty formula used by MSHA.
The discussion above shows that the large penalties proposed by MSHA were based primarily upon the criteria of gravity
and negligence associated with the alleged violations, but MSHA
could hardly have proposed smaller penalties than it did in
light of the disastrous consequences of the violations which
were described in the citations and orders and in MSHA's accident
report.
Therefore, I conclude that MSHA appropriately proposed
the penalties hereinbefore discussed and that the parties' settlement agreement should be _approved for the reasons heretofore
given.
WHEREFORE, it is ordered:
(A)
The motion for approval of settlement filed October 13,
1983, is granted and the parties' settlement agreement is approved.
(B)
Pursuant to the settlement agreement, respondent, within 30 days from the date of this decision, shall pay civil penalties totaling $10,000.00 which are allocated to the respective
alleged violations as follows:
Citation No. 1196101 4/16/82 § 75.316 ....•.. $ 1,400.00
No. 1196102 4/16/82 § 75.401 ...••••...
1,300.00
Order No. 1196103 4/16/82 § 75.1306 ..•..•.•.
500.00
Citation No. 1196108 4/16/82 § 75.1702 ....••
160.00
Order No. 1196112 4/16/82 § 75.1303 .....••..
2,350.00
Order No. 1196112 4/16/82 § 75.400 •..••••...
2,350.00
Orde~ No. 1196112 4/16/82 § 75.403 ..••.•••..
1,520.00
Citation No. 1196141 4/16/82 § 75.304 •.•.•..
420.00
O~der

Total Settlement Penalties in This Proceeding $10,000.00

~e.rJ~

Richard C. Steff~ ~
Administrative Law Judge

1866

Distribution:
Edward H. Fitch IV, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilsori Boulevard, Arlington, VA 22203
(Certified Mail)
Arnold Turner, Jr., Esq., Turner, Hall & Stumbo, P.S.C., Attorney
for R.F.H. Coal Company, Hall-Ranier Building, 15 South Lake
Drive, Prestonsburg, KY 41653 (Certified Mail)

yh

1866

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

OCT 19 llJ
SECEETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-40
A.C. No. 36-05018-03506

v.
Cumberland Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

David A. Pennington, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
In the above proceeding, the Secretary seeks civil penalties
for three alleged violations of mandatory safety standards. Each
of the violations was originally cited as significant and substantial. However, at the hearing, the Secretary moved to have
the significant and substantial designation .removed from Citation
No. 2011911, charging a violation of 30 C.F.R. § 75.400, and from
Citation No. 2011829, charging a violation of 30 C.F.R. § 75.701.
Pursuan~ to notice the case was heard in Pittsburgh, Pennsylvania,
on August 30, 1983. Clarence Moats and Ferdinard Spoljarick
testified on behalf of Petitioner; Charles Lemunyon and Barry
Nelson testified on behalf of Respondent. Each party filed a
posthearing brief. Based on the entire record and considering the
contention~ of the parties, I make the following decision.
FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS
1. Respondent is the owner and operator of an underground
coal mine in Greene County, Pennsylvania, known as the Cumberland
Mine.

2.
Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the subject
mine, and I have jurisdiction over the parties and subject matter
of this proceeding.
3. The subject mine produces 1,175,000 tons of coal annually;
Respondent produces approximately 15 million tons annually.
Respondent is a large operator.
4.
In the 24-month period prior to the issuance of the
citations involved herein, 464 violations were assessed at the
subject mine, 293 of which were designated significant and substantial. Seventy of these violations were of 30 C.F.R. § 75.400,
51 of which were designated significant and substantial. Two violations of 30 C.F.R. § 75.701 were cited during the same 24-month
period. This is a moderate history of previous violations, and
penalties otherwise appropriate should not be increased because of
it.
5. The imposition of civil penalties in this proceeding will
not affect Respondent's ability to continue in business.
6.
In the case of each citation involved herein, the violation
was abated promptly and in-good faith.
7. Whether a cited violation is properly designated as a
significant and substantial violation is per se irrelevant to a
determination of the appropriate penalty to be-assessed. The
penalties hereinafter assessed are based on the criteria in
section llO(i) of the Act.
8. The subject mine is classified as a gassy mine.
It
liberates in excess of 4,900,000 cubic feet of methane in a
24-hour period.
CITATION NO. 2011911
This citation, issued August 17, 1982, charges a violation of
30 C.F.R. § 75.400 because of an accumulation of loose coal. The
accumulation ranged between 3 and 12 inches deep, was 16 feet wide
and 16 feet long.
It was inby the section dumping point crusher
feeder.
The area was dry.
The surrounding area had been rock- ·
dusted. The section was idle and the power was off.
The accumulation was not present on the previous day.
The hazard presented by
this condition is the possibility that it could contribute to a
mine fire if one should occur. Such an event was unlikely however.
I conclude that a violation was established, which was not significant and substantial. The violation was moderately serious, and
the evidence does not show that it resulted from Respondent's
negligence.
I conclude that an appropriate penalty for this
violation is $50.

1868

CITATION NO; 2011827
This citation, issued August 31, 1982, charges a violation of
30 C.F.R. § 75.400 because of an accumulation of loose coal and
coal dust on and around the chain conveyor electric drive motor in
the longwall section. The mine area was wet. The motor was dry
and was hot to the touch.
The motor is completely enclosed in an
oblong compartment. There were vents on the side. The accumulation was on the top and partially covered and obstructed the vents
on the side.
I conclude this condition constituted a violation of
30 C.F.R. § 75.400. The hazard presented was that the motor could
heat up and cause a fire.
I conclude that the violation was
significant and substantial since such an occurrence was likely
if the motor continued running. The violation was serious, and
since it had been present for some time, was the result of
Respondent's negligence.
I conclude that an appropriate penalty
for this violation is $150.
CITATION NO. 2011829
This citation, issued September 2, 1982, charges a violation
of 30 C.F.R. § 75.701, because the metal frame of a cable skid
carrying approximately 100-feet of energized cable was not grounded.
The standard requires that "metallic frames, casings, and other
enclosures of electric equipment that can become 'alive' through
failure of insulation or by contact with energized parts shall be
grounded . • • . " The cable skid involved here is used to convey
the cable and to store it.
It consists of a sled with two runners
and a floor and pipes or standards on the side. I do not consider
this to be a metallic frame or other enclosure of electric equipment
covered by the standard. Therefore, I conclude that a violation was
not established, and the petition will be dismissed with respect to
this citation.
ORDER
Based on the above findings of fact an.d conclusions of law,
IT IS ORDERED
1.
Citation No. 2011911 is AFFIRMED but the violation was not
significant and substantial.

2. Citation No. 2011827 is AFFIRMED as properly charging a
significant and substantial violation.
3. Citation No. 2011829 is .VACATED and the penalty petition
is DISMISSED with respect to it.

1868

4.
Respondent shall, within 30 days of the date of this
decision, pay the following penalties for violations found herein
to have occurred:
CITATION

PENALTY

2011911
2011827

$ 50
150
$200

Total

J

cvvws kl81t?/t~i_
James A. Broderick
Administrative Law Judge

Distribution:
David A. Pennington, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 M.arket Street,
Philadelphia, PA 19104 (Certified Mail)
Lo~ise Q. Symons, Esq., 600 Grant Street, Room 1580,
Pittsburgh, PA 15230 (Certified Mail)

1870

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

October 24, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-207
A.C. No. 15-02502-03507

v.
No. 18 Mine
SHAMROCK COAL CO. , INC. ,
Respondent
DENIAL OF OPERATOR'S REQUEST TO WITHDRAW
ORDER TO SOLICITOR TO SUBMIT
SETTLEMENT MOTION OR INFORMATION
On May 5, 1983, the Solicitor filed a penalty proposal
in the above-captioned action.
The operator failed to
answer and on September 14, 1983, I issued a show cause
order.
By letter dated September 22, 1983, the operator advises
it wishes to withdraw its request for hearing enclosing a
copy of a memorandum dated September 6, 1983, written by the
MSHA District Manager, Barbourville, Kentucky to an MSHA
official stating that this order should not have been
specially assessed.
The District Manager requests that this
item be assessed under the regular formula.
After the penalty proposal was filed by the Solicitor,
this Commission had exclusive jurisdiction under the Act.
The only way a penalty now can be approved and assessed is
by the Commission under section 110 of the Act.
The District
Manager had no authority to act as he did.
The operator's
motion to withdraw must therefore be Denied.
It appears that the most expeditious way to handle this
matter would be for the Solicitor to discuss the matter with
the operator in order to determine if the matter can be
appropriately settled. If so, the Solicitor then should
file a settlement motion.
If the matter cannot be settled,
the Solicitor should advise me so the case can be assigned
and set down for hearing.

1871

Accordingly, it is Ordered that the Solicitor advise me
of the status of this case within 45 days of the date of
this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, U. S.
Department of Labor, 280 U. S. Courthouse, 801 Broadway,
Nashville, TN 37203
(Certified Mail)
Mr. Gordon Couch, Safety Director, Shamrock Coal Company,
P. 0. Box 130, Manchester, KY 40962
(Certified Mail)

/ln

1872

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

OCT 251983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 83-47
A.C. No. 36-03425-03507

v.
UNITED STATES STEEL MINING
COMPANY , INC. ,
Respondent

Docket No. PENN 83-63
A.C. No. 36-03425-03509
Maple Creek No. 2 Mine

DECISION
Appearances:

David A. Pennington, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The above docket numbers were consolidated for hearing and
decision since they involve citations issued in September and
October 1982, at the same mine.
Two citations are included in
Docket No. PENN 83-47, and three are involved in PENN 83-63. Pursuant to notice, the case was heard in Pittsburgh, Pennsylvania,
on August 30, 1983. Francis E. Wehr, Sr., Alvin Shade, and Okey
Wolfe testified on behalf of Petitioner; William K. Schlaupitz,
Paul Shipley, Robert c. Tishman and Paul Gaydos testified on behalf
of Respondent. Both parties have filed posthearing briefs. Based
on the entire record, and considering the contentions of the
parties, I make the following decision.
FINDINGS AND CONCLUSIONS COMMON TO BOTH DOCKET NUMBERS
1. At all times pertinent to these proceedings, Respondent
was the owner and operator of an underground coal mine in
Washington County, Pennsylvania, known as the Maple Creek No. 2
Mine.

1873

2. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the subject
mine, and I have jurisdiction ov~r the parties and subject matter
of these proceedings.
3. The subject mine has an annual production of more than
800,000 tons of coal. Respondent produces more than 15 million
tons of coal annually.
Respondent is a large operator.
4. The assessment of civil penalties in these proceedings
will not affect Respondent's ability to continue in business.
5.
In the 24-month period prior to the issuance of the
citations involved herein, there were 498 assessed violations at
the subject mine, 440 of which were designated significant and
substantial. Of these, 47 were violations of 30 C.F.R. § 75.400,
88 were violations of 75.503. This history of prior violations
is not such that penalties otherwise appropriate should be increased
because of it.
6.
In the case of each citation involved herein, the violation was abated promptly and in good faith.
7.
The subject mine has been classified as a gassy mine. It
liberates more than 1 million cubic feet of methane in a 24-hour
period.
8. Whether a cited violation is properly designated as a
significant and substantial violation is per se irrelevant to a
determination of the appropriate penalty to be-assessed. The
penalties hereinafter assessed are based on the criteria in
section llO(i) of the Act.
DOCKET NO. PENN 83-47
1. Citation No. 2011340, issued September 8, 1982, charges
a violation of 30 C.F.R. § 75.400 because of an accumulation of
loose coal along a belt line. The accumul~tion varied from 1 to
35 inches deep, was approximately 75 feet long and 12 to 36 inches
wide. There is no dispute as to the existence of the accumulation,
but the evidence is conflicting as to its nature.
The inspector·
testified that it was wet on top but beneath the top layer there
were layers of dry coal and coal dust. He also testified that the
mine floor was dry.
The assistant mine foreman testified that
the accumulation was called muck, that it was "soupy" and could
not be shovelled without being dried out. He also testified that
the mine floor was wet.
In order to abate the violation, rock
dust had to be applied to soak up the water, before the accumulation could be handled by shovels.
I find that there was an
accumulation and that it was of combustible material.
I further

find, however, that the accumulation was so wet that the likelihood
of it contributing to a mine fire was low.
I conclude that a violation was shown which was not significant and substantial. The
condition should have been observed during the preshift examination and cleaned up.
I conclude that an appropriate penalty for
this violation is $50.
2. Citation No. 2011268, issued September 10, 1982, charges
a violation 0£ 30 C.F.R. § 75.503 because the conduit was pulled
out of the packing gland on power wires on a shuttle car. The
inspector testified that a permissibility hazard was unlikely
because of the location of cable. The violation was originally
designated as significant and substantial, but this designation
was removed at the hearing.
I conclude that a violation occurred
which was not significant and substantial. The violation was not
serious. Since Respondent has been cited for this condition on a
number of occasions previously, I conclude that it resulted from
negligence.
I conclude that an appropriate penalty for this
violation is $50.
DOCKET NO. PENN 83-63
1. Citation No. 2010997, {ssued October 4, 1982, charges a
violation of 30 C.F.R. § 75.400, because of an accumulation of
loose coal on the mine floor along the rib of the 48 room entry,
and in the crosscut between 47 and 48 room along the inby rib.
The accumulation was present along the entire entry and the entire
crosscut. The accumulation averaged 18 inches wide and 20 inches
deep. It had been left by the previous shift. The coal was damp.
The roof bolter was in the crosscut and the other mining machinery
had been in the area and would return to the area. The subject
mine is gassy and has experienced face ignitions. Because of these
factors, and the extent of the accumulation, I find that the violation was reasonably likely to contribute to a mine fire.
It was a
significant and substantial violation and was serious. The extent
of the accumulation (80 feet) leads me to conclude that Respondent
was negligent in not cleaning it up earlier.
I conclude that an
appropriate penalty for this violation is $250.
2. Citation No. 2010998, issued October 4, 1982, charges a
violation of 30 C.F.R. § 75.503, because of a loose bolt on the
headlight of a shuttle car. The bolt was one of four holding the
headlight lens assembly to the body of the headlight. The hazard
presented by this permissiblity violation is that a methane ignition in the compartment could escape to the mine atmosphere and
cause a fire or explosion. Mining was not occurring at the time.
The ventilation was sufficient on the section. Sparking occurs
within the headlight. Normally the shuttle car does not approach
within 20 feet of the face.
I conclude that this permissibility
violation was reasonably likely to cause an injury.
It was significant and substantial. The violation was serious. There is

1875

no evidence that it resulted from Respondent's negligence.
I
conclude that an appropriate penalty for this violation is $100.
3.
Citation No. 2011000, issued October 7, 1982, charges a
violation of 30 C.F.R. § 75.400 because of. an accumulation of loose
coal on the mine floor from rib to rib up to 3 feet deep and 8 feet
wide in the 50 room entry.
The accumulation had apparently been
bulldozed up into a pile at the end of a prior shift. An idle
shift followed and the accumulation was not clean~d up.
The accumulation was more than .is normally associated with one cut. The
coal was dry with a layer of rock dust on top. The continuous
mining machine had broken down while in the process of cleaning the
accumulation during the last previous operating shift.
I conclude
that a violation of the standard was shown. This was an accumulation of combustible material. The hazard presented was that it
could contribute to a mine fire.
The accumulation was substantial
and I conclude that the violation was significant and substantial
because it was reasonably· likely to result in serious injury. The
violation was serious. Petitioner has not established that it was
caused by Respondent's negligence.
I conclude that an appropriate
penalty for this violation is $100.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED
1. Citation Nos. 2011340 and 2011268 are AFFIRMED, but the
significant and substantial designations are REMOVED.
2.
Citation Nos. 2010997, 2010998 and 2011000 are AFFIRMED
as issued.
They charge significant and substantial violations.
3.
Respondent shall pay within 30 days of the date of this
decision civil penalties for the following v~olations found herein
to have occurr~d:
CITATION

PENALTY

2011340
2011268
2010997
2010998
2011000

$ 50
50
250
100
100
$550

Total

CUW-5 ,44Jm~

J

James A. Broderick
Administrative Law Judge

1876

Distribution:
David A. Pennington, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail}
Louise Q. Symons, Esq., 600 Grant Street, Room 1580,
Pittsburgh, PA 15230 (Certified Mail}

/fb

1877

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

OCT 2 81983

CIVIL PENALTY PROCEEDING
:
:

v.

Docket No. WEST 80-446-M
MSHA Case No. 05-03415-05009 V

. C-SR-10 Mine

.

ENERGY FUELS NUCLEAR, INC.,
Respondent

DECISION
Appearances:

Robert Lesnick, Esq., Office of the Solicitor,
United States Department of Labor, Denver, Colorado
for Petitioner:
Timothy Borden, Esq., Energy Fuels Corporation,
Denver, Colorado
for Respondent.

Before:

Judge Carlson

This case, heard under prov1s1ons of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq. (the "Act"), arose
from a February 12, 1980 inspection of the C-SR-10 underground
uranium mine of Energy Fuels Nuclear, Inc. (Energy Fuels). The
Secretary of Labor seeks a civil penalty of $2,000.00 because
Energy Fuels allegedly compelled miners to drive a 60 foot ventilation raise while working from ladders, in violation of the mandatory
standard published at 30 C.F.R. § 57.7-52, which provides:
Persons shall not drill from (a) Positions which hinder their access to control
levers:

1878

(b) Insecure footing or insecure staying: or
(c) Atop equipment not suitable for drilling. _:;
Energy Fuels denies that any violation occurred.
It claims
that the inspector acted on misinformation and an erroneous belief
that the technique used in the beginning stages of driving the raise
was to be used ~hroughout the entire construction process.
The case was heard in Denver, Colorado with both parties represented by counsel.
The parties originally asked leave to submit
post-hearing briefs, but later asked that the case be decided without
briefs.
ISSUE
The issue to be decided here is whether Energy Fuels violated
the mandatory standard cited, and, if so, what civil penalty should
be assessed.
REVIEW OF THE EVIDENCE
The undisputed evidence of record shows that Energy Fuels, some
months prior to the inspection in this case, foresaw a need to drive
a vertical ventilation raise from a lower level drift to an abandoned
room in an upper level. The planned height of the raise was to be
approximately 60 feet.
The drift itself was approximately seven feet

1/

The inspector initially charged a violation of 30 C.F.R.
57.3-20, a ground support standard. The citation was administratively modified by the inspector to charge a qsafe accessq
infraction under 30 C.F.R. § 57.11-1. At trial, counsel for the
Secretary moved for leave to amend a second time to charge violation
of 30 C.F.R. § 57.7-52. While the government's indecision in
selecting the appropriate standard is scarcely praiseworthy, all
standards mentioned were arguably related to the nature of the
hazard described in the citation, and it was apparent at trial that
the final amendment occasioned no prejudice to the operator. The
final amendment was therefore allowed, and the hearing proceeded
upon a charge that 30 C.F.R. § 57.7-52 was violated.
I also note
that the inspector's initial action was designated an qorderq under
section 104(d)(l) of the Act, but was modified to a citation the next
day when the inspector apparently recognized that there was no previous
citation under that section which would serve as a proper predicate for
a withdrawal order.
This case was therefore tried as a citation
matter.
§

1879

from floor to back. The base of the raise was to be located in a
cross-cut intersecting the main drift. The raise was to be approximately 5 x 5 feet in cross section and to rise at an approximate
angle of 60 degrees.l/ work on the drift was begun before the
safety inspection on February 12, and was completed after that date.
Beyond these few background facts, most of the evidence presented by
the parties was in sharp conflict.
The government premised its case upon the understanding of its
inspector, Rosendo Trujillo, that Energy Fuels intended to drive the
entire raise with miners working from ladders. Since it was
undisputed that miners working in the raise would remove the overhead
rock by drilling and blasting, it followed that the supporting leg of
the drill would have been rested on a ladder rung below the feet of
the drill operator. This, according to Trujillo, would have
imperiled the driller.
Because of the weight of the drill, and
vibrations caused by its operation, the operator could easily be
dislodged from the ladder, causing a dangerous fall.
Two miners, Clifford Lynn and Leroy Lynn, testified for the
Secretary. They had the same understanding as Inspector Trujillo about
the techniques to be used in driving the raise.
The first to testify was Clifford Lynn, a shifter or lead miner.
He maintained that Doug Mempa, the mine foreman, had asked him to drive
the raise.
Mempa, he testified, had informed the miners of the plan
for the raise project about two weeks before the February 12 inspection.
Lynn's understanding was that the entire raise was to be driven
by one miner working from a ladder or ladders. The witness stated that
he had never worked on a raise, but that he believed, along with other
miners to whom the project was explained, that such a procedure was
unsafe.
According to Mr. Lynn, Mempa made no mention of the use of
scaffolds or staging as work platforms for the contemplated drilling;
nor were any scaffolding parts available in the mine. Mempa, he said,
did mention that the miner would be tied off to a J bolt secured in the
back or side of the raise.
Lynn refused to work in the raise, he testified, and was told by
Mempa he would be fired.
He was in fact discharged on the Monday
before the Secretary's inspection.

ll

The Secretary's witnesses insisted that the raise was driven at a
90 degree angle, but I note that the Secretary's own narrative
findings for a special assessment, a part of the file, describe
the angle as 60 degrees.

1830

Another miner, Leroy Lynn, a cousin of Clifford Lynn, left his
employment as a miner with Energy Fuels sometime in "the first part
of February." He, too, had refused to work in the raise because of a
belief that it was to be driven from ladders. The termination of his
employment, however, stemmed from reasons other than his refusal to
work on the raise.
According to Leroy Lynn, Doug Mempa, the foreman,
had asked him to work on the raise, and he had refused. The witness
had no experience in driving raises, but he testified that Mempa had
explained that the 4 foot by 4 foot wide raise would be driven 65
feet at a 90 degree angle.
At the time his employment ended he had
not worked in the raise, Lynn testified, nor had he seen any other
miner work there.
At no time, he testified, did he see any timbering
or other supplies which could be used to build scaffolding. The
raise had been driven about 6 to 10 feet when he last saw it before
his job at the mine was terminated, he said.
Inspector Trujillo came to the mine on February 12 in response
to a telephone complaint. According to the inspector, most of bis
information came from interviews of the two former miners who
testified and two other miners who were still on the job. These men
gave him to understand that Foreman Mempa had informed them that the
raise would be driven from ladders with the pneumatic drill and that
the miner who operated the drill would be secured by lanyards to a
J bolt anchored in the sidewall.
Trujillo testified that no one was in the raise when he saw it,
but that at that time it had been driven to a distance of about 9 to
10 feet above the back of the drift.
He also observed a muck pile in
the raise which reached to a height of 8 to 9 feet from the back of the
raise.
The drift itself, he testified, was about 8 feet high (Tr.
10 0) •

Inspector Trujillo also maintained that he had no doubts as to
the accuracy of what the miners told him because Doug Mempa, who was
present a part of the time, did not deny that management intended to
drive the entire raise from ladders. Moreover, Trujillo observed a
10 foot wooden ladder lying in the drift near the raise, but he saw
no materials for building a platform.
He further testified that
Mempa and two other representatives of management asked him, "What's
wrong with driving a bald-headed raise?"
(A bald-headed raise is
one driven from ladders without the use of timbers, staging or
platforms.)
The inspector assumed that a series of ladders would be tied or
fastened together to achieve the height necessary to complete the
entire raise.
Use of ladders, he testified, would subject the miner
drilling from the ladder to great risk of falling and thus serious
injury.
His chief concern was that the leg of the drill would
necessarily rest upon a ladder step or rung.
The vibrations from the

1881

heavy drill (over 100 pounds) would quite likely break the ladder,
Trujillo maintained, or would dislodge the miner from his precarious
position even if the ladder did not break.
Energy Fuels' witnesses presented a far.different version of the
facts. They did agree that at the time of the inspector's visit no
staging or platforms we-re in place. They contended, however, that
such structures could not be installed until the raise had been driven
several feet above the back of the drift. The stulls or timbers upon
which the planking for the platforms were to rest must, of necessity,
be fastened to the side-walls of the raise, they maintained.
The operator's general foreman, Robert Mussleman, testified that
plans for driving the raise were frequently discussed with miners
before the project was begun. According to Mussleman, management's
plan had always called for the use of a form of scaffolding or staging
which would be moved upward as the raise progressed.
Metal supports
known as Montgomery ward hitches would first be inserted into the
walls. These would support 8 x 8 inch timbers which in turn support
the 2 x 8 inch lagging or planking which would serve as the drilling
platform. According to the Mussleman's description, the miner would
stand on the planking and rest the leg of the drill there.
He would
then proceed to drill the back above him with drill steels varying from
2 to 6 feet long.
Charges would then be inserted, the planking
removed, and charges detonated. The broken rocks would then fall to
the floor of the crosscut below.
As the raise advanced, new hitches
and timbers would then be installed.
Additionally, Mussleman asserted,
separate safety lines attached to J bolts would be secured to both the
miner and the heavy drill.
Mussleman testified that ladders were indeed to be used to allow
access to the various levels of the staging as the raise advanced.
He also indicated that the first few feet of the raise was, of
necessity, to be "bald headed."
Explbsive rounds, he testified,
would be fired to push the raise far enough to install timbers. No
drilling, he asserted, would be done from a ladder.
Rather, the
miner doing the drilling would stand atop the large muck pile in the
crosscut at the base of the raise. The top of the raise would be
leveled, planking would be placed there to form a solid footing, and
the drill leg would rest on the planking.
A ladder would be used, he
explained, only to insert the charges for the third round.
(After
the second round, the miner could reach the back of the raise with
the drill steel from a fully extended drill to drill the holes, but
could likely not reach that far by hand to insert the charges.)
Mussleman claimed that all
were in the mine by the time of
Montgomery Ward hitches and the
projects, he testified, and the
him in January.

necessary supplies for the stagings
the February 12 inspection.
The
planking were at the mine from former
8 x 8 inch timbers were brought in by

1882

Mussleman recalled that the raise was between 6 and 12 feet
high when the citation issued, and the muck pile was around 5 feet
high.
At one point he acknowledged that a miner could have stood on
the ladder to drill, but that in any event the drill leg would have
been rested on the muck pile.
He insisted that the drill leg would
break a ladder rung if rested there.
Mussleman acknowledged that no plan for the construction of the
scaffolding systems had been placed on paper until after Inspector
Trujillo's inspection (Tr. 123).
Bernie Willey, a miner whose employment at the mine ended in
August of 1980, also testified for Energy Fuels. Willey indicated
that he drilled the last 50 feet of the raise from scaffolding. His
description of the technique used conformed to the description of the
staging system which Mussleman claimed to be management's plan.
Willey also testified that he was present when Mussleman
explained the raise plan, including the use of staging or scaffolding.
The explanation took place before the inspection. The
witness had understood that in the early stages, the miner would
stand on a ladder but brace the drill leg on the muck pile (Tr 162).
Willey's participation began, however, about a month after the
citation. At that time the top of the raise was about 15 feet high.
Doug Mempa, the mine foreman at the times relevant to this
case, testified that he explained the raise project to the miners
before it began, and that he at no time represented that the raise
would be driven from ladders.
Moreover, he maintained that all
necessary timbers, hitches, and planking were at the mine before the
drilling began.
The stulls or timbers were delivered by Mr. Mussleman,
he testified, during a snowstorm in January: the other supplies were
already present.
Mempa asserted that he saw the raise daily from the
time it was begun.
According to Mempa, a miner named Kenneth Chad did the first work.
The first rounds fired by Chad "booted," leaving an uneven hole. Mempa
then drilled and shot the next round to "square up" the raise.
Mempa
insisted that neither he nor Chad drilled from a ladder: it was done
from the top of the muck pile. He did not believe a ladder was lying
in the drift during Inspector Trujillo's visit, but conceded one could
have been, because ladders were sometimes used in the drift.
Mempa testified that at the time of the inspection he measured the
height of the raise from the top of the drift and found it to be 9
feet.
The drift itself was 7 feet high. Therefore, the total height
of the raise was 16 feet.
He did not measure the height of the muck
pile but estimated it to be about 5 feet. (Tr. 195-196.)

188d

The drill, with the support leg fully extended reached 8 1/2 feet,
according to Mempa, which, with a 6 foot drilling steel allowed a reach
of approximately 14 feet (Tr. 222).
Richard D. Husted, mine safety and envirbnmental engineer ~or
Energy Fuels, testified that he saw the raise on February 12, 1980, or
a day or two before. While there, he saw materials suitable for
building scaffolding.
In rebuttal, Inspector Trujillo testified that in a subsequent
visit to the mine on March 18, 1980 to check on abatement of the
alleged violation, that it appeared that another round had been fired,
making the raise about 2 or 3 feet higher.
During his rebuttal
testimony he made clear that he had never seen a miner working in the
raise.
He also acknowledged that if a miner had in fact been able to
stand on a lower rung of the ladder to drill while resting the drill
leg on the muck pile, such activity might not constitute a violation.
DISCUSSION
Even a cursory review of the record in this case reveals that the
secretary's evidence is wholly circumstantial. Neither the inspector
nor any other witness for the government saw anyone at work in the
raise.
The question, then, is whether the circumstantial evidence is
strong enough to establish violation.
For the reasons which follow, I
hold that it is not.
I have no doubt that if the inspector were correct, if the entire
raise were to have been driven from ladders, the procedure would have
been patently hazardous and a clear violation of the standard
ultimately cited.
More particularly, I am convinced that if the leg of
the heavy drill were rested on a rung of the same ladder upon which the
miner operating the drill was standing, a violation would occur, no
matter what the height of the raise.
I am not convinced, however, that
any violation had occurred at the time of the inspector's citation.
The circumstantial evidence presented by the Secretary was of two
types: the words of two miners who related their understanding that the
entire raise was to be driven from ladders without platforms, and the
observations of these witnesses and the inspector of the raise itself
up to February 12, 1980.
No one disputes that the raise was finished from platforms of the
sort that the inspector approved.
The government would suggest, of
course, that the Lynns understood correctly that Energy Fuels
originally intended to drive the entire raise from ladders, and altered
that intent only after the inspector's visit and citation.
Assuming
that the drilling and blasting activity was done lawfully, up to the
time of the inspection, the government's suggestion raises a troublesome question: what steps, if any, may the Secretary take under the Act
to prevent a prospective violation?

1881

I do not believe that that question need be addressed at any
length here.
As I read the Act, it contains no language ~hich
contemplates present sanctions to prevent possible future or intended
violations of mandatory standards. That question need not be
entertained because I find persuasive the operator's claims that it
intended from the time of conception of the raise project to use
platforms.
In reaching this conclusion, I rely principally on the
testimony of Bernie Willey, a miner whose employment with Energy Fuels
had ended well before the hearing.
He therefore lacked any discernable
motive to shade or slant his testimony. Willey fully supported the
management ~estimony that plans to use platforms were made clear to
miners before the raise began.
I make no judgments as to the good
faith of the Lynns in professing otherwise, but I find that they were
mistaken in that belief.
This leaves but a single issue to decide.
Did the size and shape
of the raise at the time of inspection reveal the use of a ladder as a
drill rest in violation of the standard? As mentioned before, no
witness testified that any miner used a ladder rung as a base for the
drill leg. The Lynns inferred that someone did because they had been
told that the entire raise would be drilled from ladders.
Inspector
Trujillo drew the same inference based upon what he was told by miners
who never observed the actual work, and from his knowledge of the
driving of "bald headed" raises in other mines at other times (Tr.
209-210).
Against these inferences I must weigh the evidence of Doug Mempa,
the foreman who actually directed the other miners who worked in the
raise before February 12, 1980, and who, himself, apparently did most
of that work.
He testified emphatically that all drilling was done
using the muck pile as a base.
He also provided the only testimony
concerning the actual measurements of the raise on the date of inspection.
I note that Mempa's measurements were generally consistent
with the estimates of other witnesses.
I further note that, given the
height of the raise at the time of the inspection, Mempa's representations that drilling up to that time was done from the muck pile were
plausible.
Since the top of the raise was 9 feet above the back of the
7 foot drift, the top of the raise was but 11 feet above the muck pile.
Thus, a drill which extended to 8 1/2 feet, used in conjunction with a
6 foot drill-steel, could have been rested on the muck pile to allow
placement of the last charges detonated before the inspection.
I
therefore accept the first-hand testimony of Mempa, who actually
directed and participated in this early phase of the project, over the
speculations of those witness who did not see the work done.
In summary, no one seriously contends that any violation occurred
unless a miner rested the drill leg on a ladder rung.
No credible
evidence demonstrates that the drill was handled in that way. Consequently, I must conclude that no violation was proved.

1885

CONCLUSIONS OF LAW
Based upon the entire record and upon the factual determinations
reached in the narrative portion of this decision, it is concluded:
(1) That the Commission has jurisdiction to decide this case.
(2) That the credible evidence of record fails to establish that
Energy Fuels violated the mandatory safety standard published at 30
C.F.R. § 57.7-52.
(3) That the Secretary's citation and attendant proposal of civil
penalty must be vacated.
ORDER
Accordingly, the citation and petition for assessment of a penalty
are hereby vacated.

ohn A. Carlson
Administrative Law Judge
Distribution:
Certified Mail to
Robert Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
Timothy Borden, Esq., 3 Park Central, Suite 900
1515 Arapahoe Street, Denver, Colorado 80202

/blc

188ti

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

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

OCT 2 81983

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-170
A.C. No. 46-03140-03507

v.
Hampton No. 3 Prep. Plant
WESTMORELAND COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

The parties move for approval of a settlement of the
captioned matter at 80% of the $1,000 amount initially assessed.
The record shows that as a result of the operator's
unwarranted disregard for compliance a dangerous accumulation
of float coal dust and loose coal was found in the operator's
Hampton No. 3 Preparation Plant. The violation was of such
a nature that it could significantly and substantially contribute
to a mine fire if not promptly abated.
The reduction in the
penalty is predicated on the parties' claim that the chain of
causation was physically attenuated by the absence of any obvious
source of an electrical ignition and the ready availability of
adequate fire suppression equipment.
Neither of these circumstances would preclude a fire that
could result from roller friction and that could propagate an
explosion of the float coal dust if the co-al dust under and
around the belt conveyors were cast into suspension as the
result of other unforeseen circumstances.
The potential of the
violation as a contributing factor to a fire hazard is readily
foreseeable, that to an explosion remote if not speculative.
Under the S&S criteria Congress intended an operator be
held liable not only for the gravity and negligence involved
in the immediate violation but also for its reasonably foreseeable consequences, i.e., its contribution to a significantly
and substantially greater hazard or danger. Here, for example,
the immediate hazard was a slipping hazard due to the presence
of water mixed with the coal sludge. But if roller friction
in the coal dust caused an ignition a mine fire could result.

It is possible perhaps even probable that the fire suppression
system would render the fire harmless but on the other hand it
might not. The redundancy in a protective or safety system
cannot excuse a condition that could significantly and substantially contribute to a major hazard. A serious consequence
was, therefore, readily foreseeable from the condition found.
As I view it, the dispositive issue in applying the S&S criteria
is one of reasonable foreseeability of a significant and substantial contribution by the underlying violation to a serious mine
health or safety hazard.
Reasonable probability that the hazard
forseen will actually occur is merely another factor that adds
to the substantiality of the hazard, not to its existence.
There is a widespread belief that unless a violation
immediately creates a reasonable probability of a reasonably
serious injury or illness it cannot be classified as significant
and substantial and must perforce be classified as trivial.
30 C.F.R. 100.4. This constitutes a serious misreading not only
of the statutory language but also of the Congressional intent.
Congress intended violations be cited as significant and substantial where they are of such a nature as "could" significantly
and substantially "contribute" to the "cause or effect" of a
mine safety or health hazard.
Sections 104(d), (e). This does
not mean that the violation cited in a 104(d) (1) citation must,
standing alone, present a "significant and substantial" hazard
or even a "major" hazard or danger to safety and health. The
S&S standard, written by miners for miners, was designed to
provide an early warning or alert with respect to violations
with an incipient potential for disaster.
Compare, Scotia Coal
Company, 4 FMSHRC 89 (1982); Sen. Rpt. 95-181, 95th Cong. 1st
Sess. 32 (1977). Unless violations with the potential for
contributing to such disasters as Scotia are prevented they
will continue to recur as recent history amply attests.
S&S violations may be either serious or nonserious depending
upon their immediate consequences.
Thus, while there was
little likelihood that the static condition observed in this
case would result in a reasonably serious injury it was fully
capable of contributing to a hazard with disasterous potential-a potential that was reasonably foreseeable if the condition was
not promptly abated.
It is precisely for this reason that
nonserious violations may be of "such a nature" as to contribute
to a serious mine hazard while a serious violation may have no
potential for creating anything other than a need for prompt
abatement. Here, for example, if it were convincingly shown
that the fire suppression system was capable of dousing the fire
before it became dangerous the violation would still be serious
but would lack the potential for making a significant and
substantial contribution to a hazard capable of causing death

1886

or bodily harm. The operator, of course, has the burden of
persuasion with respect to rebutting a prima facie violation
is S&S. Miller Mining Co. v. FMSHRC, 3 MSHC 1017 (9th Cir.
1983); Old Ben Coal Corp. v. IBMOA, 523 F.2d 25, 39 (7th Cir.
1975).
Gravity always depends upon the potential for adverse
consequences and must be evaluated in the light of the potential
of a violation for such consequences. The immediate consequence
of an ignition in the presence of a small quantity of even a
5% concentration of methane may be negligible but unless the
condition, i.e., the "cause" of the ignition or the source of
the bleeder; e.g., an impermissibility or a ventilation violation or both rs-eliminated and prevented the existence of each
condition or violation is of "such a nature" as may, i.e.,
"could" significantly and substantially "contribute" to-a much
larger ignition, namely an explosion that may take out an
entire section or an entire mine.
It is a misnomer and confuses analysis to refer to the
"significant and substantial" hazard defined by Congress as an
S&S "violation." Congress used the subjunctive mood and the
present tense conditional, verb "could" to express its concept
of a "hazard" that might materialize at some indefinite time
if the underlying "violation," whether serious or nonserious
in its immediate consequences were not abated and the hazard
aborted.
While an S&S hazard is not an imminent danger because
the certainty of its occurrence is less obvious and the time
less definite, it is, as the Scotia case so dramatically
demonstrated, just as deadly and dangerous.
The difficulty
in perception when coupled with the conseq~ences of misperception are so grave as to argue strongly for resolving
doubts in favor of the evidence or testimony that supports
the S&S finding.
Consequently, if a hazard is reasonably
foreseeable it should be considered significant and if it is
of such a nature that it is capable of "contributing" to a
condition or practice that could result in serious physical
harm it should be deemed substantial.
I firmly believe that if the S&S standard is to have the
scope intended by Congress, it must be used to prevent the
occurrence of violations that sow the seeds of disaster for
either individual miners or groups of miners. Operators owe
miners a duty not only to prevent serious violations but all
violations of whatever gravity that may contribute to hazards
with serious consequences for the health and safety of the
industry's most important resource--the miner.

1889

Applying the standard indicated, and based on an
independent evaluation and de novo review of the circumstances, I find the settlement proposed is in accord with
the purposes and policy of the Act.
Accordingly, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED.
It is FURTHER ORDERED
that the operator pay the amount of the settlement agreed
upon, $800, on or before Friday, November 18, 1983, and that
subject to payment the captioned atter be DISMISSED.

Jo eph B. Kennedy
Administrative Law
Distribution:
Janine c. Gismondi, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market St., Philadelphia, PA
19104
(Certified Mail)
F. Thomas Rubenstein, Esq., P.O. Drawer A & B, Big Stone
Gap, VA 24219
(Certified Mail)

/ejp

1890