AUGUST 1979
The following cases were Directed for Review during the month of August:
Secretary of Labor; MSHA, v. Olga Coal Company, HOPE 79-113-P.
Secretary of Labor, MSHA, v. Valley Camp Coal Company, ,MORG 78-46-P.
Hilo Coast Processing Co., v. Secretary of Labor, MSHA, DENV 79-50-M, etc.
Secretary of Labor, MSHA, v. Kenny Richardson, BARB 78-600-P.
Review was denied in the following cases during the month of August:
Secretary of Labor, MSHA, v. Texas Utilities Generating Co., DENV 79-82-P.
Secretary of Labor, MSHA, v. Magma Copper Company, DENV 78-574-PM.

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

August 3, 1979
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION,
(MSHA)

v.

Docket No. DENV 78-31-P

KAISER STEEL CORPORATION
DECISION
This penalty proceeding arises under section 109(a) of the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. §801 et ~· (1976)
(amended 1977) ["the 1969 Act"]. In his decision, Administrative Law
Judge Koutras found that Kaiser Steel Corporation violated the.mandatory
standard at 30 CFR 75.316 1/ and assessed a $1,000 penalty. Kaiserrs
petition for discretionary-review of the judge's decision was granted by
the ConnnissiQn.
On February 1, 1977, a Mining Enforcement and Safety Administration
(MESA) inspector visited Kaiser's York Canyon Mine No. 1. At a working
face, he observed what he considered to be an excessive concentration of
float coal dust, extending 15-20 feet from the face, including the area
where the continuous miner operator was seated at the machine's controls. He measured both the volume and velocity of air and found it
inadequate, with only 1900 cubic feet of air per minute and a mean
velocity of 18 feet per minute being delivered to the working face.
Kaiser's approved ventilation plan required at least 3000 cubic feet at
a minimum velocity of 45 feet per minute. In determining the cause of
the substandard air supply, the inspector discovered that one road check
curtain was rolled up and another was partially torn. He also observed
that the auxiliary fan and ventilation tubing system, being used to pull
the air away from the face area and into the return course, had about
387 feet of tubing. The maximum permissible length of exhaust tubing
specified in the ventilation plan is 400 feet. The inspector then

1./

30 CFR §75.316 provides in pertinent part:
Ventilation system and methane dust control plan.
[Statutory Provisions]
A ventilation system and methane dust control plan and revisions thereof
suitable to the conditions and mining system of the coal mine and
approved by the Secretary shall be adopted by the operator ••• The plan
shall show the type and location of mechanical ventilation equipment
installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air
reaching each working face ••••
79-8-1

984

issued the notice at issue. Kaiser innnediately abated the condition by
repairing the road curtains and reducing the length of tubing in order
to-move the blower fan closer to the working face.
It is not disputed 2/ that a violation occurred. The issues on
review are limited to the judge's finding that Kaiser was negligent and
the relevance of that finding to the amount of the penalty assessed. 3/
Kaiser argues that the judge erred in ~inding: that Kaiser's "positioning
of the ventilation ·tubing in conjunction with the auxiliary fan was the
primary cause of the lack of required air velocity"; 4/ that Kaiser
"failed to exercise reasonable care to insure that the required velocity
of air at the working face was maintained"; and that Kaiser's "failure
to exercise reasonable care in the circumstances resulted in ordinary
negligence." We conclude that the judge's negligence finding is supported
by substantial evidence.
Whether the placement of the fan and tubing was the primary cause
of the substandard air volume and velocity need not be reached. There
is ample record evidence to support a finding that it was a cause of' the
reduced air flow. The inspector testified that the repair-of the toad
curtain alone would not have remedied the inadequate air flow if the
tubing and fan were not functioning properly. The inspector also
testified, and Kaiser's foreman agreed, that friction and resistance to
air flow increase as exhaust tubing length is increased, thereby reducing the effectiveness of an auxiliary exhaust fan. Further, Kaiser's
foreman testified that on other occasions when inadequate air flow was
detected, the exhaust fans were moved closer to obtain proper ventilation at the face.
]:_/ Kaiser admitted that the air volume and velocity at the working face
were below the levels required by its approved ventilation plan.
)_/
Section 109(a) of the 1969 Act provides in pertinent part:
(1) The operator of a coal mine in which a violation occurs of a
mandatory health or safety standard ••• shall be assessed a civil
penalty by the Secretary ••• which penalty shall not be more than
$10,000 for each such violation •••• In determining the amount of
the penalty, the Secretary shall consider the operator's history of
previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to continue in
business, the gravity of the vioiation, and the demonstrated good
faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. [Emphasis added].
!±) The question of causation is relevant to Kaiser's argument that it
was not negligent because the judge found no negligence on Kaiser's part
with respect to the failure to properly maintain the road curtains.

985

Finally, both the foreman and inspector agreed that after the tubing was
shortened and the fan was moved closer to the face, in conjunction with
the-proper positioning of the road curtains, proper air flow was obtained.
Therefore, we reject Kaiser's argument that record evidence does not
support a finding that the placement of the fan and tubing was not a
cause of the inadequate air flow.
The judge's conclusion that Kaiser .failed to exercise.reasonable
care to insure that the required volume and velocity of air were maintained at the face is also supported by substantial evidence in the
record. The Act imposes on the operator "a high degree of care to
insure the health and safety of persons in the mine." U.S. Senate,
Committee on Labor and Public Welfare, Legislative History, 94th Cong.,
1st Sess. at 1515. The inspector observed considerable float coal dust
extending 15 to 20 feet from the face. The continuous miner operator
was situated within the area of the dust concentration. The inspector's
tests revealed that only 1900 cubic feet of air at a velocity of 18 feet
per minute was being delivered to the face, substantially less than the
airflow requirements specified in Kaiser's ventilation plan. The fact'
that the 387 feet of exhaust tubing being used fell within the 400 root
maximum permitted in the ventilation plan does not excuse the failure to
maintain ~he Tequired air velocity at the face. Kaiser was aware of the
interrelationship between length of tubing and amount of air flow.
Further, the foreman's pre-shift examination was made at the last open
crosscut, not at the face, and he admitted that satisfactory air velocity readings at the last open crosscut do not guarantee that required
velocity is being maintained at the face. For these reasons, we affirm
the judge's conclusion that Kaiser was negligent in failing to maintain
the required volume and velocity of air at the working face.
In assessing a $1,000 penalty for this violation, the judge fully
considered the criteria set forth in section 109 of the Act. The
penalty is appropriate and will not be d sturbed.

A. 1 E. Lawson,; Commissioner

~00i~01A~lGJJ
~
Marian Pearltrue1 Nease, Commissioner

986

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

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

August 3, 1979
Docket No. DENV 77-7-P

IBMA No. 77-50

v.
CAMBRIDGE MINING CORPORATION
DECISION
This penalty proceeding arises under the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. §801 et~· (1976) (amended 1977).
On July 11, 1977, Administrative Law Judge Morehouse found that Cambridge
Mining Corporation had violated 30 CFR §75.200, 1./ and assessed a civil
penalty of $50. On appeal, J:./ Cambridge argues that no violation occurred.
In finding a violation, the judge credited the testimony of the
inspector who described a spalling condition along an unsupported rib in
a working place. The judge found:
Here it is clear that the 40 or 50 feet in question in the first
entry did have "loose ribs" as observed by the inspector and as
evidenced by respondent's decision to place wire mesh and gunnite
on the ribs and not have the men work in that area until the gunniting took place. "Working place" means the area of a coal mine inby
the last open crosscut ••• and the regulation cited above requires
working places to be supported or otherwise controlled adequately
to prevent persons from falls of the roof or ribs. It is true that
respondent had made plans to adequately support the ribs with steel
mesh and gunnite and had made the decision to have the men work in
another entry until this was done. However, the evidence does not
support the conclusion that the men had been withdrawn or specifically instructed by respondent not to go into that area and there
had been no danger signs posted. It, therefore, must be concluded
that this particular area was not adequately controlled.

1./

Section 75.200 provides, in pertinent part:
••• 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.
2:./ The appeal was pending before the Board of Mine Operations Appeals
as of March 8, 1978. Accordingly, it is before the Commission for disposition. Section 301 of the Federal Mine Safety and Health Amendments
Act of 1977, 30 U.S.C. §961 (1978).

79-8-2

9-87

A.~ Lawson, Commissioner

;~ ~U"~lHQU ~

Marian Pear~n Nease, Commissioner

988

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

August 3; · 1979

ISLAND CREEK COAL COMPANY

v.

Docket No. PIKE 79-18

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
UNITED MINE WORKERS OF AMERICA
DECISION
of Island Creek.Coal,

A. E. Lawson, Commissioner

~
~Qwfuucw 1\\QCUQ
Marian Pearlman Nease, Commissioner

79-8-3

-989"

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

August 15, 1979
Docket No. HOPE 76-231

LOCAL UNION 5869, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA

IBMA No. 76-106

v.
YOUNGSTOWN MINES CORPORATION
DECISION
This case involves an application for compensation under section
llO(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§801 et seq. (1976) (amended 1977) ["1969 Act"]. Applicants .are ~iners
seeking pay for four hours working time lost on December 9, 1975, as a
result of a section 104(b) withdrawal order being issued to Youngstown
Mines Corporation (Youngstown). 1/
On November 7, 1975, a Mining Enforcement and Safety Administration
(MESA) representative issued a notice to Youngstown pursuant to section
104(b) of the 1969 Act, requiring abatement by November 10, 1975, of a
violation of 30 CFR §75-1704 for failure to maintain required travelable
passageways, to be designated as escapeways. Between November 7 and
December 4, 1975, several intermittent work stoppages occurred, in which
the applicants participated. During this period, the MESA representative
extended the abatement period on several occasions. These extensions
indicated that work was in progress to abate the violation, that work
stoppages had occurred, and that additional time was needed to obtain
compliance. On December 9, 1975, the MESA representative issued a
withdrawal order to Youngstown which stated in pertinent part: "Necessary
action to abate upon the expiration of extensions of time was not taken."

1./

Section 104(b) of the 1969 Act provided for issuance of a withdrawal order in the event an operator failed to abate a violation of a
mandatory safety or health standard within the abatement period prescribed by the notice of violation and any extensions of that period.

79-8-8

990

The withdrawal order was issued on the afternoon shift, all miners
on that shift were withdrawn from production work and were detailed to
the work of abating the violation for the balance of the shift. 2/ As
a result every miner on this shift worked in the abatement process for
the balance of the shift and therefore received pay for the entire
shift. The evening shift, which included the applicants began work at
3:45 p.m., the regular starting time for that shift. All miners were
assigned to the abatement work. On this shift, however, the applicants
worked for only four hours and were then sent home. The applicants were
paid for the first four hours of the evening shift--the hours they
worked on abatement--but not for the remaining four hours of the shift.
Applicants filed this claim under section llO(a) of the 1969 Act
claiming entitlement to compensation for the four hours of the evening
shift that they did not work. Section llO(a) provided, in pertinent
part:
If a coal mine or area of a coal mine is closed by
an order issued under section 104 of this title, all
miners working during the shift when such order was
issued who are idled by such order shall be entitled to
full compensation by the operator at their regular
rates of pay for the period they are idled, but for not
more than the balance of such shift. If such order
is not terminated prior to the next working shift,
all miners on that shift who are idled by such order
shall be entitled to full compensation by the operator
at their regular rates of pay for the period they are
idled, but for not more than four hours of such shift ••••
[Emphasis added.]
The parties filed a joint stipulation of facts and waived an
evidentiary hearing. On June 18, 1976, Administrative Law Judge
Kennedy issued his decision. He granted the application and awarded
four hours compensation, with six percent interest from December 9,
1975, the day of idlement, until the compensation is paid. Youngstown
appealed the judge's decision and its appeal is before the Commission
for disposition. 1./
]:_/
Section 104(d) of the 1969 Act provided, in pertinent part: "The
following persons shall not be required to be withdrawn from, or
prohibited from entering, any area of the c-oal mine subject to an
order issued under this section: (1) any person whose presence in
such area is necessary, in the judgment of the operator or an authorized
representative of the Secretary, to eliminate the condition described
in the order •••• "
1/ Section 301 of the Federal Mine Safety and Health Amendments Act
of 1977, 30 U.S.C. §961 (1978).

991

Youngstown first contends that section llO(a) obligates an operator
to pay compensation only for the first four hours of the next working

shift fo 1 lowing issuance of a withdrawal order. It argues that a
withdraw .l order has the effect of "officially idling" the miners even
if it does not bring about their actual idlement. According to Youngstown,
the applicants were "idled" for the first four hours of the evening
shift, even though they performed abatement work during that period
pursuant to section 104(d). Because they were paid for this four-hour
period, Youngstown. contends the appli~ants have been paid all compensation
due under section llO(a).
We reject Youngstown's interpretation of section llO(a). Section
llO(a) provides that i f a section 104 order "is not terminated prior to
the next working shift all miners on that shift who are idled by such
order shall be entitled to full compensation • • • but for not more than
four hours of such shift." In the instant case, after performing four
hours of abatement work the miners were sent home. At the time that
they were sent home the withdrawal order was still outstanding. But for
the withdrawal order, the miners would have worked and received compensation for the final hours of their shift. Therefore, the miners were
"idled" by the order within the meaning of section llO(a)
the' last
four hours of their shift and are entitled to compensation. Section
llO(a) does not say that compensation thereunder is limited to the first
four hours of the succeeding shift. Rather, the plain words of section
llO(a) require the payment of compensation in these circumstances.

for

Youngstown's reliance on the decision of the Interior Department's
Board of Mine Operation• Appeals in Island Creek Coal Co., 5 IBMA 276
(1975), is misplaced. In Island Creek, a section 104(b) withdrawal
order was issued at 7:15 a.m. The night shift had ended at 7:00 a.m.;
the day shift began at 7:30 a.m. The day shift employees were able to
work for the first four hours of their shift before their facility was
closed as a result of the withdrawal order. The UMWA filed an application
for compensation on behalf of the miners. The administrative law judge
rejected the UMWA's claim that the order issued "during" the day shift.
The judge found that the order was issued prior to the start of the day
shift and, therefore, that the day shift was the "next working shift"
within the meaning of section llO(a). He also held, however, that the
fact that the day shift employees worked for four hours after the order
issued (for which they were paid) did not negate section llO(a)'s requirement that the miners be paid for the four hours that they were "idled."

The UMWA appealed the judge's decision to the Board and argued that the
judge erred in finding that the order was not issued "during" the day
shift. The Board affirmed the judge's decision, stating:
[T]he order in question was not issued "during the
shift" and • • • the miners on the day shift connnencing
at 7:30 a.m. are logically on the "next working shift"
entitled to full compensation by·the operator at their
regular rat.es of pay for the period they were idled,
but for not more than 4 hours of such shift. 5 IBMA. at
284.
Thus, although the Board did not specifically address the issue, it
affirmed the judge's conclusion that the miners were entitled to four
hours compensation even though they were compensated for work performed
during the initial four hours of the shift. Therefore, in spite of
the reliance placed on it by Youngstown, Island Creek actually supports
the result reached by the judge in the present case. !:±._/
The second issue raised by Youngstown is whether unlawful or
unauthorized work stoppages by the miners seeking compensation should
bar a compensation award if the work stoppages contribute directly to
the failure to timely abate a violation, and thus to the issuance of

!:±_/
Youngstown's further argument that the reporting pay provision
of its collective bargaining agreement supports its interpretation
of section llO(a) is also rejected. The assertion that Congress
patterned section llO(a) compensation rights after the reporting
pay provision in the industry collective bargaining agreement is
supported only by reference to the Board's statement in Island Creek,
supra, that "we are inclined to believe that the provisions of
section llO(a) of the Act were designed with knowledge of and
perhaps as an extension of the industry practice for payment of
reporting pay." 5 IBMA at 283. The Board, however, did not cite
any support for its "belie[f]", nor does Youngstown cite any
legislative history or other authority. This is too scant a
basis to equate statutory rights with private collective bargaining agreement provisions. Furthermore, the Board's phrase
"extension of the practice" can be read to mean the granting of
additional rights, not merely statutory adoption of existing
contractual rights. Finally, as discussed above, the Board's
views regarding "industry practice" and the intent of section
llO(a) did not preclude it from affirming an award of compensation
for the second four hours of the next working shift in that case.

993

the withdrawal order upon which the claim for compensation is based. 2.,/
Youngstown argues that in enacting section llO(a) Congress did not
contemplate that compensation would be paid where, as contended here,
the order causing the miners to be idled resulted from the conduct of
the miners. To do so, Youngstown asserts, is to reward "wrongdoing" on
the part of the miners and to work an "injustice" on Youngstown. We
affirm the judge's rejection of Youngstown's asserted defense for the
following reason. ~/
We believe that important policy considerations dictate that an
unlawful or unauthorized work stoppage defense should not be entertained
by the Commission in a compensation case. ]_/ To hold otherwise would
require the Commission to determine in each such case whether a work
stoppage violated the collective bargaining agreement or was otherwise
unauthorized or unlawful. Such a determination is intimately i~volved
with the specialized law of union-management relations and would thrust
the Commission into resolution of issues which should be resolved by ~he
grievance-arbitration process or by other tribunals with direct jurisdiction over such disputes.

2_/

The parties stipulated that "[n]one of the work stoppages ••• were
authorized by the Respondent or by the Wage Agreement by which the
parties hereto are governed in their relationship with one another."
~/
We do not base our decision on the ground that the argument raised
by Youngstown is an untimely challenge to the validity of the withdrawal
order. Although work stoppages, lawful or otherwise, might provide a
basis for extending an abatement period, this does not answer the question here. It may·well be that safety conditions fully warrant the
issuance of a withdrawal order for failure to abate even though such
failure is due solely to an unauthorized or unlawful work stoppage.
Thus, the employer may concede the necessity of withdrawal and still be
consistent in arguing against compensation to those responsible for the
work stoppage and consequent failure to abate.
]_/
Furthermore, on the record before us, we find the connection between
the work stoppages and the failure to abate too tenuous to support a
conclusion that the work stoppages were the cause of the failure to
abate. (See Judge's Decision at n. 7.)

994

Not entertaining a work stoppage defense in compensation cases will not
work an injustice to operators, for they are left with other more appropriate remedies for financial harm caused by unlawful work stoppages
~., arbitration or damage actions under section 301 of the TaftHartley Act, 29 U.S.C. §185). Other forums are more appropriate than
the Commission for resolving issues so closely related to collective
bargaining and union-management relations. '§_/
The third issue raised by Youngstown on appeal is whether the judge
erred in including interest in the award of compensation. The Board of
Mine Operations Appeals rejected a claim that interest is awardable
under section llO(a) of the 1969 Act in UMWA v. Rushton Mining Co., 3
IBMA 231 (1974), aff'd on other grounds sub nom., Rushton Mining Co. v.
Morton, 520 F.2d 716 (3d Cir. 1975). The Board's decision in Rushton,
however, is void of any rationale for disallowance, except for the
observation that section llO(a) does not expressly provide for such relief.
Courts of appeals have considered an analogous issue under the National
Labor Relations Act and have overwhelmingly subscribed to the allowance
of interest in backpay awards. 2./ In Philip Carey Manufacturing C~mpany
v. NLRB, 331 F. 2d 720, 729-731 (6th Cir. 1964), cert. denied, 379 U.S.
888, the Sixth Circuit held:
--

'§_/
Our decision is limited to the work stoppage defense asserted here.
We do not foreclose the assertion of other affirmative defenses in
compensation cases.
9/
Reserve Supply Corp. of Long Island v. NLRB, 317 F.2d 785 (2d Cir.
1963); International Brotherhood of Operative Potters v. NLRB, 320 F.2d
757 (D.C. Cir. 1963); NLRB v. Globe Products Corp., 322 F.2d 694 (4th
Cir. 1963); Marshfield Steel Co. v. NLRB, 324 F. 2d 333 (8th Cir. 1963);
Revere Cooper & Brass, Inc. v. NLRB 325 F.2d 132 (7th Cir. 1963); NLRB
v. George E. Light Boat Storage, Inc., 373 F.2d 762 (5th Cir. 1967).

995

It is well established that the omission of a
mention of interest in statutes which create obligations does not show necessarily a Congressional
intent to deny interest. (Citing Rodgers v. United
States, 332 U.S. 371, 373] • • • •
It is recognized under our legal system that
wage-earners are heavily dependent upon wages, which
more often than not constitute the sole resource to
purchase the necessities of life from day to day • • • •
Many wage-earners who are deprived of their wages
doubtlessly find it necessary to borrow money to sustain
themselves and their families, paying rates of interest
at six percent or higher.
As under the National Labor Relations Act, we believe that the
purposes of the compensation provision under the 1969 Act are best '
served by allowing interest on compensation awards, even though tne
Act does not expressly provide for interest. Accordingly, we decline
to follow the Board's decision in Rushton Mining Co., supra.
For the foregoing reasons, the decision of the judge awarding
compensation and interest is affirmed.

A. E. Lawson, Commissioner

\__\~n ;i lCLt( 'QQ ~'1 ~JD~H l\),DCUQ

.

Marian Pearlma~ Nease, Commissioner

996

ADMINISTRATIVE LAW JUDGE DECISIONS
AUGUST 1, 1979 - AUGUST 31, 1979

FEDERAL·MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 2.b03

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

7 :3 ._,
·Civil Penalty Proceedings

Docket No. WILK 79-59-PM
A/O No. 28-00393~05002
Docket No. WILK 79-100-PM
A/O No. 28-00393-05003

NEW JERSEY ZINC COMI>ANY,
Respondent

Sterling Mine & Mill
DECISION
·ORDER TO PAY
The above-captioned actions are two petitions for the assessment
of civil penalties for thirty-two alleged violations of the Act.
At the hearing on July 5, 1979, the Solicitor moved to withdraw
two of the violations on the grounds that the conditions described
were not covered by the cited standards. The Solicitor's explanations
were accepted from the bench and the two items in question were dismissed.
The originally assessed amount for the remaining items was $2292.
The Solicitor-advised at the hearing that the parties had agreed to
settle these items. He explained each of them individually in detail.
Most of them did not present particularly serious violations and in
many instances the Solicitor stated that he was not prepared to prove
the existence of negligence. Even more importantly, the operator had
no prior history of violations and the cited violations in fact,
occurred during the first inspection of this mine under the 1977 Act.
The recommended settlements totalled $1603. In view of the circumstances which are fully set forth in the administrative transcript of
the hearing, the recommended settlements are approved.
ORDER
The operator is ORDERED to pay $1603 within 30 days from the date
of this decision.

c.-'---'-\A
Paul Merlin

999

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K ~TREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

August..,_, 1979

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

Civil Penalty Proceedings
Docket No. WILK 79-83-PM
A.C. No. 28-00510-05001

v.
GEORGE F. PETTINOS, INC.,
Respondent

Docket No. WILK 79-127-PM
A.c. No. 28-00510-05002
Docket No. YORK 79-1-M
A.c. No. 28-00510-05003
Manumuskin Plant & Dredge

DECISION
Appearances:

,Anthony c. Genetto, Esq., Office of the Solicitor,
u.s. Department of Labor, New York, New York, for
Petitioner;
Western c. Overholt, Esq., Philadelphia, Pennsylvania,
for Respondent.

Before:

Chief Administrative Law Judge Broderick

Statement of the Case
On January 23, 1979, a petition for assessment of civil penalty
was filed by the Mine Safety and Health Administration seeking penalties for. 20 alleged violations of mandatory health and safety standards promulgated under the Federal Mine Safety and Health Act of 1977
(WILK 79-83-PM). Similar petitions were filed in Docket Nos. WILK
79-127-PM (March 9, 1979), for two alleged violations and YORK 79-1-M
(April 2, 1977), for three alleged violations. Answers were filed on
February 28, 1979, March 26, 1979, and April 18, 1979, respectively,
requesting a hearing in each case •. On April 17 and April 19, 1979,
these three dockets were consolidated a~d scheduled for hearing. A
hearing was held in Philadelphia, Pennsylvania, on May 23, 1979.
Vernon R. Denton and Arthur J. Toscano testified on behalf of Petitioner. No witnesses were called by Respondent.
The parties stipulated that the annual man hours of employment
at Respondent's facility would fall in the 60,000 to 400,000 range.
There were 19 employees at the plant at the time of inspection. On
the basis of these facts, I find that Respondent is a medium-sized

operator for the purposes of determining the appropriateness of the
penalties to the size of the operator's business. There is no evidence that the penalties will affect Respondent's ability to contirn.ie
in business.
The record establishes that Respondent in the case of each violation found herein to have occurred, made a good faith effort to
achieve rapid compliance after notification of the violation.
A review of Respondent's history of previous violations shows
that no increase of the penalties is warranted on that basis.
Findings are hereafter made with respect to the occurrence,
gravity and attendant negligence of each violation.
Findings of Fact

I.

WILK 79-83-P

(1) Citation No. 204556, issued May 2, 1978, alleged a violation of mandatory standard 30 CFR 56.12-18 which requires that
principal pow~r units shall be labeled to show which units they control. Four to five of Respondent's pump house switches on the dredge
were not labeled. The inspector testified that Respondent abated the
citation on the same day by extraordinary means. I find that a violation of 30 CFR 56.12-18 was established. The violation was not serious
and was not caused by Respondent's negligence.
(2) Citation No. 204557, issued May 3, 1978, alleged a violation
of mandatory standard 30 CFR 56.11-1, which requires walkways and ramps
to have handrails. A 10- to 12-foot span of wooden·walkway which provided access to the pipeline was unsecured. The inspector testified
that the violation was abated in good faith -On the same day. I find
that a violation of the mandatory standard contained in 30 CFR 56.11-1
did occur. The violation was serious because of the possibility of
injury, but was not the result of negligence. I also find that
Respondent took extraordinary steps to comply after the citation was
issued.
(3) Citation 204558, issued May 2, 1978, alleged a violation of
mandatory standard 30 CFR 56.12-4, which requires that lights which
present a shock or burn hazard shall b~ guarded. Respondent's pump
house had an unguarded wall-mounted light located 6 feet above the
floor. The inspector testified that Respondent abated the citation by
installing a guard. The inspector also testified that the violation
was neither serious nor the result of negligence. I find that the
violation was not serious, was not negligent and was abated rapidly
and in good faith.
(4) Citation No. 204559, issued May 2, 1978, alleged a violation
of 30 CFR 56.11-27 which requires that scaffold and working platforms

1001

shall be maintained in good condition, provided with handrails and
properly secured. The inspector testified that a wooden plank at the
top of the wash plant which connected the walkway to a window had no
handrails or tow bar and lacked secure planking. An employee who
slipped could fall 12 feet onto concrete. Respondent removed the
planking. The inspector testified that he terminated the citation
because the hazard no longer existed. The inspector further stated
that the foreman did not know how long the scaffolding had been there,
however, it had not been used by any employee. I find that the viola~
tion was not serious. I further find that Respondent abated the violation rapidly and in good faith.
(5) Citation No. 204560, issued May 2, 1978, alleged a violation
of 30 CFR 56.11-12 which requires openings above, below or near travelways through which men or materials may fall to be protected by railings, barriers or covers. The inspector testified that an unguarded
and uncovered opening existed at the bottom landing of the wet plant
ladder. He stated that an employee could injure himself if he slipped.
and fell into the 10-foot by 16-foot opening. The inspector stated
that the Respondent exhibited good faith in abating the violation. I
find that a violation of 30 CFR 56.11-12 occurred. The evidence.shows
that the condition was known or should have been known to the Respondent. I find that the violation was serious and was due to Respondent's negligence. Respondent did, however, abate in good faith.
(6) Citation No. 204613, issued May 2, 1978, alleged a violation of 30 CFR 56.11-27 which requires that scaffolds and working
platforms be substantial in construction and provided with handrails.
The inspector testified that-an elevated platform around the wash
plant had two open sides without railings. He stated that a worker
could fall 10 feet from the platform onto the roof and possibly to the
floor, which would result in injury. The inspector further stated
that the Respondent took extraordinary steps to gain compliance by
stopping production and welding metal railings on all sides of the
platform. He stated that such condition should have been known to
management although the platform was only used occasionally. I find
that a violation did occur which was known or should have been known
to the Respondent. I find that Respondent was negligent. Because of
the possibility of serious injury, the violation was serious. Respondent abated the violation in good "faith.
(7) Citation No. 204614, issued May 2, 1978, alleged a violation of 30 CFR 56.12-13 which requires that permanent splices and
repairs made in power cables be insulated to a degree at least equal
to that of the original and sealed to exclude moisture. The inspector testified that a long leaf cord With insulation damage in several
places was in contact with a steel ladder. The inspector stated that
there was high humidity and any further damage to insulation might
energize the ladder causing an arc or a shock. The inspector stated
that the management was or should have been aware of the damage

1002

because they had.purchased a new light. The cord had been inadequately repaired. I find that a violation occurred. I further find
that the Respondent was aware or should have been aware of the condition and therefore the violation resulted from Respondent's negligence.
The violation was moderately serious because it could have resulted in
a serious injury to an employee. I find that the Respondent abated the
violation promptly and in good faith.
(8) Citation No. 204615, issued May 2, 1978, alleged a violation
of 30 CFR 56.20-3 which requires that all workplaces, passageways and
storerooms must be kept clean, orderly and free from protuding nails,
splinters, holes, or loose boards. The inspector testified that the
fourth gate metal walkway which was located 10 feet above the concrete
floor of the wet plant was not kept clear of trip hazards. He stated
that there were accumulations of links of pipe and other materials on
this walkway. He further testified that the violation was abated
immediately by removal of the obstructing material. I find that a
violation occurred. It did not result from the Respondent's negligence. Because of the possibility of injury, I find that the violation was ooderately serious. The Respondent abated the violation
promptly and i~ good faith.
(9) Citation No. 204616, issued on May 2, 1978, alleged.a violation of 30 CFR 56.11-2 which requires that crossovers, elevated
walkways, elevated ramps and stairways be of substantial construction, provided with handrails, and maintained in good condition. The
inspector testified that a plank at the back end of the dry and wash
plant was unsecured from the floor to the walkway. The plank which
also had no railing, was 10 feet above the ground. Although the walkway was only used occasionally, injury was probable •. The inspector
stated that the violation was abated by securing the plank at one end
and tying a tight line across the plank to serve as a hand line until
origina~ railing could be designed.
I find that a violation of 30 CFR
56.11-2 was established because of the absence of railing and security
for the wooden plank walkway. The condition was known or should have
been known to the Respondent and the violation was the result of
Respondent's negligence. Because of the possibility of serious injury
from this violation, I find that it is serious. Respondent promptly
and in good faith abated the condition.
(10) Citation No. 204617, issued .on May 2, 1978, alleged a violation of 30 CFR 56.16-6 which requires'that valves on compressed
gas cylinders shall be protected by covers when being transported
or stored and by a safe location when the cylinders are in use. The
inspector testified that a compressed gas cylinder without protective
valves was on a cart in Respondent's plant. If the cylinder fell off
the cart or the cart overturned, the cylinder might explode. The
Respondent abated the citation by protecting the entire top of the
gauge assembly with a cover. The inspector further testified that
the Respondent could not have known or predicted the hazard. I find

1003

that a violation of 30 CFR 56.16-6 was established; that there is no
evidence that the violation should have been known to the Respondent
and therefore that the violation did not result from Respondent's
negligence. The violation was not serious and Respondent abated the
violation promptly and in good faith.
(11) Citation No. 204618, issued on May 2, 1978, alleged a violation of 30 CFR 56.12-25 which provides ·that all metal enclosing or
encasing electrical circuits be grounded or provided with equivalent
protection. The inspector testified that a rigid conduit, which contained a three-conductor cable for the 240 AC motor was broken. He
stated that if the motor faulted, the housing would be energized and
would present a safety hazard. Respondent abated the violation by
replacing a whole section of the rigid conduit. The inspector stated
that Respondent was not negligent and that injury was improbable
because the motor was elevated slightly above the ground. I find that
a violation did occur. However, there is no evidence that the Respondent was aware or should have been aware of this condition. The condition therefore, did no.t result from Respondent's negligence. ·The
violation was moderately serious because although an injury is
unlikely to h~ve occurred, if it had occurred, it would have been
serious. I find that Respondent abated in good faith.
(12) Citation No. 204561, issued on May 3, 1978, alleged a violation of 30 CFR 56.14-1 which provides that gears, sprockets take-up
pulleys and similar exposed moving machine parts which may be contacted by or cause injury to persons must be guarded. The inspector
testified that he observed an unguarded V-belt in the bagger compressor. The Respondent ab&ted the citation by removing the motor.
I find that a violation of 30 CFR 56.14-1 was established. The evidence does not indicate that the violation was due to Respondent's
negligence. The condition was moderately serious, but it was abated
promptly and in good faith.
(13) Citation No. 204562, issued on May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the head pulley of the shuttle guard
was not guarded on the walkway side. Petitioner and Respondent have
proposed a settlement of $40. I approve this settlement and find that
Respondent was not negligent and demonstrated good faith in installing
a guard.
(14) Citation No. 204563, issued on May 3, 1978, alleged a violation of 30 CFR 56.11-27 in that the elevated platform by the bagger
station did not have a railing. Petitioner and Respondent propose a
settlement of $38. I approve this settlement and find that Respondent
failed to exercise reasonable care, but was not reckless. Abatement
was prompt and in good faith.
(15) Citation No. 204564, issued May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the tail pulley for the return cooler

1004

conveyor was not adequately guarded. Petitioner stopped production
and installed a guard to abate the citation. Petitioner and Respondent proposed a settlement of $44. I approve this proposed settlement
and find that the violation could not have been known to the Respondent. Respondent demonstrated good faith in promptly abating the
citation.
(16) Citation No. 204566, issued May 3, 1978, alleged a violation of 30 CFR 56.11-27 in that the scaffold for the tripping arm of
the No. 27 tower did not have railings. Respondent installed an
interim guard on a rail in rapid compliance with the citation. The
Petitioner and Respondent agreed to a proposed settlement of $38. I
approve the settlement and find that the condition cited could not
have been known to the Respondent. The Respondent demonstrated good
faith in its extraordinary and rapid abatement of the violation.
(17) Citation No. 204568, issued May 3, 1978, alleged a violation of 30 CFR 56.14-1 in that the V-belt drive of the wheel mounted
car loader was not guarded. Respondent paid two men overtime to
fabricate a guard to abate the citation. Petitioner and Respondent
agreed to a proposed settlement of $38. I approve this settlement
and find that the condition could not have been known to Respondent.
I also find that extraordinary steps were taken to comply with the
regulation.
(18) Citation No. 204619, issued May 3, 1978, alleged a violation of 30 CFR 56.12-32 in that the cover for the juncture box was
damaged and not properly secured. Respondent replaced a damaged cover
on the juncture box by replacing the entire unit. Petitioner and
Respondent agreed to a proposed settlement of $26. I approve this
settlement and find that the condition could not have been known by
the operator. Respondent abated the violation in good faith.
(19) Citation No. 204620, issued May 3, 1978, alleged a violation of 30 CFR 56.12-34 in that the hanging light bulbs at the
second set of screens were not guarded. Respondent abated the citation by bringing in electrical contractors who installed guards on
lighting fixtures throughout the plant area. Petitioner and Respondent agreed to a proposed settlement of $38. I approve the settlement and find that the condition could not have been known or
predicted by the Respondent. Responden~ abated the violation in
good faith.
(20) Citation No. 204569, issued on May 4, 1978, alleged a violation of 30 CFR 56.5-50 because Respondent's employees were exposed,
without protective hearing equipment, to noise levels of 145 percent
where the permissible noise level was 100 percent. Respondent abated
the citation by instructing the employees in hearing protection and
by posting warning signs. The parties agreed to settle the matter
for a payment of $32. I approve the settlement.

1005

II.

WILK 79-127-PM

(21) Citation No. 204600, issued June 7, 1978, alleged a violation of 30 CFR 56.20-11 which requires visible warning signs to be
posted in areas where health or safety hazards exist, that are not
immediately obvious to employees. Respondent did not have signs
posted in an area where there was danger·of inhaling respirable dust.
Respondent abated the citation by instal1ing several signs and
instructing his men in the wearing of respirators. Petitioner and
Respondent proposed a settlement of $122 which I approve.
(22) Citation No. 219272, issued on September 22, 1978, alleged,,
a violation of 30 CFR 56.20-3 which requires that all service rooms,
floors and workplaces be kept clean, orderly and in a dry condition.
The inspector testified that the floor in the dry mill wash room/
store room was slippery and wet and covered with toilet paper. The
room had a sink, toilet, portable type air compressor, metal storage
cabinet and drum of lubricant grease. I find that the evidence shows
that this constituted a work place under 30 CFR 56.20-3, and that a
violation was established. The violation was not the result of the
Respondent's negligence, but it was serious because of the possibility
of injury. I find that the condition was abated rapidly and in good
faith.
III.

YORK 79-1-M

(23) Citation No. 220101, issued November 15, 1978, alleged a
violation of 30 CFR 56.11-2 which requires crossovers, elevated walkways, stairways to be of suostantial construction and properly
maintained. The planking of the wooden walkway abo"Ve the water on
the east side of the dredge were deteriorated and poorly maintained.
Respondent assigned three men to abate the citation. Petitioner and
Respondent proposed the amount assessed ($66) as a settlement and I
approve the settlement.
(24) Citation No. 220103, issued November 15, 1978, alleged a
violation of 30 CFR 56.11-12 which requires openings above, below and
near travelways through which men or materials may fall, be protected.
The railing to protect men from ~alling from the head box and the
wash platform was not maintained. Petjtioner and Respondent agreed
upon the amount assessed ($66) as a settlement, and I approve this
settlement.
(25) Citation No. 220106, issued November 15, 1978, alleged a
violation of 30 CFR 56.14-1 which requires guarding of exposed moving
machine parts which may cause injury to persons. The inspector testified that the chain drive of the 65 wet elevator was not adequately
guarded. The Respondent abated the citation by installing a new guard
to completely enclose the chain. I find that a violation of 30 CFR

1006

56.14-1 was established. The violation was not the result of Respondent's negligence, but was moderately serious because of the possibility that a serious injury would result. Respondent abated the
condition in good faith.
Conclusions of Law
1. The undersigned administrative law judge has jurisdiction
over the parties .and the subject matter of this proceeding.

2. At all times relevant to this proceeding, Respondent was
subject to the provisions of the Federal Mine Safety and Health Act
of 1977.
3. Except as otherwise found herein, Respondent violated the
mandatory health and safety standards as charged in the notices of
violation.

4. The penalties hereafter assessed are based on my findings
that the violations occurred, and on a consideration of the following criteria with respect to each violation: The operator's history
of previous vi9lations, the appropriateness of the penalty to the size
of the business of the operator, whether the operator was negligent,
the effect on the operator's ability to continue in business, the
gravity of the violations and the demonstrated good faith of the
operator in attempting to achieve rapid compliance.
ORDER
Based on the foregoing findings of fact and conclusions of law,
Respondent is assessed the following penalties (including herein the
contested citations and the proposed settlement agreements):
Notice

Date

30 CFR Standard

204556
204557
204558
204559
204560
204613
204614
204615
204616
204617
204618
204561
204562
204563
204564

05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/02/78
05/03/78
05/03/78
05/03/78
05/03/78

56.12-18
56.11-1
56.12-4
56.11-27
56.11-12
56.11-27
56.12:.13
56 .20..:3
56.11-2
56.16-6
56.12-25
56.14-1
56.14-1
56.11-27
56.14-1

1007

Penalty
$

25
75
25
75
100
100
75
50
100
25
35
35
40
38
44

204566
204568
204619
204620
204569
204600
219272
220101
220103
220106

05/03/78
05/03/78
05/03/78
05/03/78
05/04/73
06/07 /78
09/22/78
11/15/78
11/15/78
11/15/78

56.11-27
56.14-1
56.12-32
56.• 12-34
56.5-50
56 .20-1
56.20-3
56.11-2·
56.11-12
56.14-1
Total

38
38
26
38
32
122
75
66
66
50
$1,393

ORDER
Respondent is ORDERED to pay penalties in the total amount of
$1,393 within 30 days from the date of this decision.
J j:'.I , ~ , . ' /;;
f;J ;1u:S ..·f-1..J
1·l CP./,,·7.c,/L
1

.._./

James A. Broderick
Chief Administrative Law Judge

Distribution:
Anthony c. Genetto, Esq., Office of the Solicitor, U.S. Department of Labor, 1515 Broadway, New York, NY 10036 (Certified
Mail)
Western C. Overholt, Jr., Esq., 1200 Western Savings Fund
Building, Broad and Chestnut Streets, Philadelphia, PA 19107
(Certified Mail)
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson
_Boulevard, Arlington, VA 22203

1008

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

1.;c
KENNECOTT COPPER CORPORATION,
Applicant

Application for Review

v.

Docket No. DENV 79-457-M
Citation No. 336249; 2-13-79

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

... Bingham Canyon Mine

DECISION
Appearances:

James B. Lee, Esq., and James M. Elegante, Esq., Parsons
Behle & Latimer, Salt Lake City, Ut, for Applicant;
Stephen P. Kramer, Esq., Office of the Solicitor, U.S.
Department of Labor, for Respondent.·

Before:

Administrative Law Judge Michels

This· proceeding involves an application for review of Citation
No. 336249, issued at Applicant's Bingham Canyon Mine on February. 13,
1979, charging a violation of 30 CFR 55.12-45. Kennecott Copper
Corporation filed its application on March 13, 1979, pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d). MSHA filed an answer on March 30, 1979, admitting the issuance of the citation and asserti~g that it was properly
issued.
A hearing was held in Salt Lake City, Utah, on May 15 and 16, 1979.
Both parties were represented by counsel. No representatives of the
miners appeared as a party; however, representatives of certain un~pns
appeared as witnesses for the Applicant and testified in opposition[
to the MSHA charge. These were Joseph Dispenza, President of United
Steel Workers Local 485 (Tr. 180-186); Robert D. Nicholls, Executive
Board, Local 1081, International Brotherhood of Electrical Workers
(IBEW) (Tr. 186-196); Arthur Don Beals, Business Manager, (IBEW)
(Tr. 196-200); Ben E. McAlester, Jr., Secretary of United Transportation Union Local 1615 (Tr. 214-218). Mr. Dispenza also wrote a letter
to the Federal Mine Safety and Health Review Commission on April 19,
1979, protesting a requirement that the steel towers be grounded to
the track.
On July 26, 1979, pursuant to the Commission's Interim Procedural
Rules at 29 CFR 2700.15(a), Applicant filed a motion requesting
permission to withdraw its application for review. As grounds for its
proposed action, Applicant advised that MSHA has concluded that the

1009

citation involved in this proceeding was "issued in error because
the 1978 National Electrical Code was not properly incorporated by
reference at 30 CFR 55.12-45, upon which the citation was based. 11
Attached to Applicant's motion was a copy of a letter from Respondent's
attorney confirming this information. Subsequently, on July 31, 1979,
Respondent filed. a copy of the notice which va~ated Citation No.
336249. This notice of vacation provides:
The citation was issued in error, based on Mandatoiy
Standard 55.12-45, which makes reference to the National
Electric Code. The Office of the Federal Register rules
that regulations concerning incorporation by reference must
specify the edition incorporated, and that the incorporation is limited to the material as it exists on the effec~
tive date of the regulation. Mandatory Standard 55.12-54
was promulgated in the Federal Register in 1969, and reference to the National Electric Code of 1978, is invalid.
Refer to Part 51.8(c) F.R. 23614, November 4, 1972.
After considering the above circumstances, Applicant's motion
to withdraw it's application for review is hereby GRANTED. This
proceeding is DISMISSED. :!_/
.

c-1. . ' A. A.

if~~/~
Franklin P. Michels
"'?-

...

Administrative Law Judge
Distribution:
James B. Lee and Kent W. Winterholler, Esqs., Parsons, Behle &
Latimer, 79 South State Street, Salt Lake City, UT 84111
(Certified Mail)
Stephen P. Kramer, Esq., MSHA Trials Branch, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Mr. Joe Dispenza, President, Local No. 385, United Steelworkers
of America, 1056 South Second East, Sandy, UT 84044 (Certified
Mail)
Mr. David Bennett, President, Local ·392, United Steelworkers of
America, Kennecott Copper Corporation, Magna, UT 84044
(Ceritfied Mail)
1/ I reco~nend that the Exhibit A-17, which is a heavy piece of
ilectrical equipmenc, be returned to the Applicant.

1010

FEDERAi.. MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. MORG 78-46-P
A.O. No. 46-01483-02023V

v.

Valley Camp Coal No. 1 Mine

VALLEY CAMP COAL COMPANY,
Respondent
DECISION AND ORDER ON MOTION
TO APPROVE SETTLEMENT
Upon remand, the parties move for approval of a settlement
reducing the amount of the penalty assessed from $10,000 to
$7,000. For the reasons set forth in the motion and based upon
my independent evaluation and de novo review of the/circumstances,
I find the penalty 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 penalty agreed upon,
$7,000, on or before Friday, August 2
1979 and that, subject
to payment, the captioned petition b D SMISSED.

Distribution:
Ronald B. Johnson, Esq., Schrader, Stamp & Recht, 816 Central
Union Bldg., Wheeling, WV 26003 (Certified Mail)
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
Harrison Combs, Esq., United Mine Workers of .America, 900 15th'
Street, N.W., Washington, DC 20005 (Certified Mail)

1011

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. MORG 78-46-P
A.O. No. 46-01483-02023V

v.

Valley Lamp Coal No. 1 Mine

VALLEY CAMP COAL COMPANY,
Respondent
MEMORANDUM OPINION
As the order in this matter indicates, I make it a practice in
considering motions to approve settlements under section llO(k)
of the Act to make an independent evaluation and to conduct a
de novo review of the circumstances and particularly the evidence
relating to the gravity and negligence involved in the violations
charged. Furthermore, I fully and candidly discuss these
evaluations with counsel and the parties.
It has recently come to my attention that the Chairman of
the Subcommittee on Health and Safety of the House Committee on
Education and Labor, Mr. Gaydos, disapproves of the practice and
feels that if a judge during the course of a settlement conference
expresses views about the sufficiency of a penalty or indicates that
the amount of the penalty may be increased if the facts as to
culpability are proved at an evidentiary hearing he may be accused
of attempting to "intimidate" or "penalize" an operator for insisting
on a hearing. 1/

1/

The object of the Congressman's solicitude was John S. Lane &
Son., Inc., of Westfield, Massachusetts. The company operates
3 sand and gravel pits that produce 1,250,000 tons of aggregate
annually. The operator admitted the violations charged and contested
only the amounts of the penalties assessed. The operator paid
$573.00 in settlement of seven violations for an average of $82.00
per violation. Four other violations were withdrawn at the suggestion
of the presiding judge. The penalties for these violations totall·ed
$136.00. Mr. Gaydos' informant was Leland B. Seabury, Esq. counsel
for the operator.

1012

On the other hand, Congressman Gaydos found nothing intimidating
about the judge's reconnnendation that the government withdraw four
charges he considered unsupported by the evidence disclosed during
settlement discussions. If that strikes one as being somewhat biased
against even-handed enforcement it may only be attributable to the
fact that the Congressman relied on an ex parte account from a
disgruntled operator who so firmly believed he was coerced that his
counsel failed to appeal the case to the Connnission.

I have previously and publicly made clear that I do not consider
it my function to "rubber stamp" settlement proposals. ];./ See,
Pomerleau Bros., WILK 79-4-PM, D&O of February 13, 1979; Kaiser
Steel Corporation, DENV 79-430-P, D&O of June 4, 1979; Alabama ByProducts, BARB 78-2, et al., D&O of May 31, 1979. Certainly there
is no purpose in discussing settlement with the parties if the judge
is not prepared to be honest and forthright about his views or
policy with respect to the issues.
When I disapprove a settlement, I think the parties are entitled
to know why. And when I tell the parties that based on my evaluation
of a violation I think the amount proposed is insufficient to deter
future violations and ensure voluntary compliance but that I am
prepared to approve an increased amount, I am not attempting to
intimidate anyone.
];/

In Pomerleau, I noted:
The plain language of section llO(k) and the legislative history
of the Act convincingly establish that the Presiding Judge is
charged with responsibility for making just such an independent
evaluation and de novo review of proposed settlements. To
approve settlements merely on the basis of unsubstantiated
representations of counsel with respect to gravity, negligence
and the adequacy of penalties imposed by the Assessment Office
would be violative of the Connnission's duty "for reviewing the
enforcement activities of the Secretary of Labor." Connnents
of Senator Williams at Confirmation Hearing, Federal Mine Safety
and Health Review Commission, (Aug. 28, 1978), page 1.

*

. *

*

The sooner operators, and especially the noncoal operators, are
disabused of the notion that they have nothing to lose and everything to gain by filing a notice of contest of every penalty
assessed, the sooner the enforcement program will become more
manageable and respected.

1013

Furthermore,
1.

When I tell the Solicitor I do not think a charge
is warranted in view of the disclosures made during
the course of settlement discussions, I consider I
am doing only what fairness requires, and

2.

When I tell the operator my evaluation leads me to
believe a violation is more serious than he is willing
to concede and warrants a penalty larger than that
proposed, I consider I am doing only what section
llO(k) of the Act requires, and

3.

When I tell the operator that if he is not content
with my evaluation he should realize the hearing is
de novo and that I may be required by the evidence
to assess a much larger as well as a much smaller
penalty, I am again doing only what candor and the law
requires.

And if a lawyer with that knowledge tells his client to settle because
he feels coerced and intimidated and not because he believes he
cannot win the case then I suggest the operator needs a new lawyer.
Based on my feedback from counsel, I find it is in the interest of
the parties and of fair and efficient enforcement for the judge to
divulge his reasons for denying a settlement, including his views
as to the amount of the penalty he would consider warranted if the
operator is found guilty as charged.
After all, any competent lawyer knows that regardless of the
judge's views or findings an arbitrary assessment is subject to
reversal on appeal. What then is to be gained by ill-informed and
intemperate threats to 11 stomp 11 judges
act in accordance with
their conscientious view of the law?

1014

FEDERAL.MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES .
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceedings
Docket No. DENV 79-320-PM
A/O No. 02-00842-05003

v.
MAGMA COPPER COMPANY,
Respondent

Docket No. DENV 79-321-PM
A/O No. 02-00151-05003
Docket No. DENV 79-433-PM
A/O No. 02~00842-05001
Docket No. WEST 79-32-M
A/O No. 02-00842-05002
San Manuel Mill and Mine

DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
Department of Labor, for Petitioner MSHA;
N. Douglas Grimwood, Esq., Twit~y, Sievwright &
Mills, Phoenix, Arizona, for Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil penalties
filed under section 110 of ~he Act by the Secretary of Labor, Petitioner, against Magma Copper Company, Respondent.
The cases were duly noticed for hearing and were heard as scheduled on June 19, 1979. At the hearing, pursuant to agreement of the
parties and in accordance with the regulations, the subject docket
numbers were consolidated for hearing and decision.
At the hearing, the parties agreed to the following stipulations:
1. · The operator is the owner and operator of the subject Magma
Copper Company, its mine and mill.
2. The operator, its mine and mill, are subject to the jurisdic·
tion of the Federal Mine Safety and Health Act of. 1977.

1015

3.

The administrative law judge ha~~-jurisdiction of these cases.

4. The· inspectors who issued. the subject citations were duly
authorized representatives of the Secretary, and all witnesses who
will testify for both the Secretary and the operator are generally
accepted as experts in mine safety.
~rly

5. True and correct copies of the subject citations were propserved upon the operator.

6. Copies of the subject citations and termination of the violations in issue in these proceedings are authentic and may be
admitted into evidence for purposes of establishing their issuance
but not for the purpose of establishing the truthfulness or relevancy
of any statements asserted therein.
7. Imposition of any penalty will not affect ·the operator's
ability to continue in business.
8.

All alleged violations were abated in good faith.

9.

The operator has no history of prior violations.

10.

The operator is large.

Citation Nos. 377156 and 377157
The Solicitor moved to withdraw th.e petition with respect to
Citation Nos. 377156 and 377157. The motion was granted from the
bench.
Citation No. 376720
The Solicitor moved to withdraw from the petition Citation No.
376720 without prejudice. This item is the penalty aspect of the
"walkaround" provision involving the operator which is presently
before the Commission. The motion to withdraw without prejudice
was granted from the bench.
Citation No. 377123
The Solicitor moved to have a settlement approved for Citation
No. 377123 in the amount of $56 which was the originally assessed
amount. In view of the Solicitor's representation of moderate gravity
and because of the operator's lack of previous history, the recommended settlement was approved from the bench.
Citation No. 347618
The Solicitor moved to have a settlement approved for Citation
No. 347618 in the amount of $114 which was the originally assessed

1016

amount. In view of the Solicitor's representation that occurrence of
the feared accident was unlikely and because of the operator's lack of
previous history, the recommended settlement was approved from the
bench.
Citation No. 376616
This citation, as amended, alleged a lack of guarding for rod
mill Nos. 1, 9, 6, 8, and 10. The operator admitted the lack of
guarding, and the originally assessed penalty of $210 was imposed from
the·bench.
Citation Nos. 376703, 376704, 376619, and 376701
Since these citations contained the same condition and alleged
the same violation as those set forth in Citation No. 376616, as
amended, they were dismissed from the bench.
Citation No. 376705
This citation, as amended, alleged a lack of guarding for the
Nos. 13, 15, 16, 17, 18, 19, and 20 ball mills. The operator admitted
the lack of guarding, and the original assessed penalty of $280 was
imposed from the bench.
Citation Nos. 376706, 376707, 376708, 376709, 376710, and 376712
Since these citations contained the same conditions and alleged
the same violations as those set forth in Citation No. 376705, as
amended, they were dismissed from the bench.
Citation No. 377135
This citation, as amended, alleged a lack of guarding for regrind
mill Nos. 1 and 2. The operator admitted the lack of guarding, and
the originally assessed penalty of $80 was imposed from the bench.
Citation No. 377136
Since this citation contained the same condition and alleged the
same violation as set forth in Citation No. 377135, as amended, it
was dismissed from the bench.
Citation No. 377129
This citation, as amended, alleged a lack of guarding for bel~
drives on secondary crusher Nos. 1 and 2. The operator admitted the
lack of guarding, and the originally assessed penalty of $80 was
imposed from the bench.

1017

Citation No. 377130
Since this citation contained the same condition and alleged the
same violation as set forth in Citation No. 377129, as amended, it
was dismissed from the bench.
Citation No. 377131
This citation, as amended, alleged a lack of guarding for belt
drives on tertiary crusher Nos. 1, 2, 3, and 4 •., The operator admitted
the lack of guarding, and the originally assessed penalty of $160 was
imposed from the bench.
Citation Nos. 377132, 377133, 377i34
Since these citations contained the same conditions and alleged
the same violations as those set forth in Citation No. 377131, they
were dismissed from the bench.
Citation No. 376614
The Secretary and the operator introduced documentary exhibits
and testimony with respect to this citation. Upon the conclusion of
the testimony, counsel for both parties waived the filing of written
briefs, proposed findings of fact, and conclusions of law. Instead,
they agreed to present oral argument and receive a decision from the
bench. After considering the evidence and oral argument, a decision
was rendered from the bench as follows (Tr. 60-62):

I

I find a violation existed. Section 57.14-1 requires
that gears, sprockets, chains, drive, h~ad, tail and
tak~up pulleys, fly wheels, couplings, shafts, saw blades,
fan inlets, and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury to
persons shall be guarded. The machinery here was a drive
shaf.L.~nd a coupling.
These items fall squarely within
the mandatory ·standard. In addition, I believe the evidence from both the inspector and the operator's witness
demonstrates that these parts may be contacted by persons
and may cause injury. It is not necessary und~r this mandatory standard to establish precisely the probability of
injury or of contact by individuals. It is enough that
there may be contact and that there may be injury. Both
those elements are present here.
I further find that as the Solicitor admitted
(Tr. 53), the violation was of minimal gravity. The
inspector and the operator's assistant safety director
were in conflict with respect to whether an individual or

1018

his clothes could get caught in the moving drive shaft.
The drive shaft was moving at two seventy (270) rpm's so
that if.someone tripped or fell, injury could result.
However, I recognize that in accordance with the evidence
people are not usually in the area in question, and that
when equipment is being serviced, it is supposed to be
turned off. It is a truism that if everyone did what they
were supposed to do, the mining industry would not be as
hazardous as it is. Therefore, I cannot find that the
violation was nonserious. I find that the.gravity was
substantially reduced because the likelihood of an
accident occurring was remote.
I further find the operator was negligent. This
equipment should have been guarded. The guard that was
present could have bien moved a little closer, and
although it would not have completely covered the coupling, it would have to some extent, reduced the danger.
I take note of the decisions furnished by the operator's counsel with respect to the accessibility of certain equipment to employees as a condition for the finding
of a violation. That may be the rule under the Occupational
Health and Safety Act. It has never been the rule under
the Mine Safety Act. I further recognize that at least
one administrative law judge of the Federal Mine Safety and
Health Review Commission has held that where the evidence
does not establish the necessity of a guard, a violation
does not exist. I further note, however, that the decision
in that case which is Great National Corporation, Docket
No. DENV 77-59-P, also is based upon the ground that the
relevant machinery was in any event, adequately guarded.
As counsel for the operator pointed out, I am not bound
by a decision of another administrative law judge. In my
view, the mandatory standard is clear in covering this
situation. It is not for me to substitute my judgment for
that of the Secretary in writing the regulations, as long
as the regulations are not inconsistent with the Act.
I also take into account, in accordance with the
stipulations, that the operator has no prior history of
violations, that the violation was abated in good faith,
and that the operator is large in size. Taking all the
statutory factors into account, a penalty of fifty dollars
($50) is assessed.
Citation No. 377125
The Secretary and the ope~ator introduced documentary exhibits
and testimony with respect to this citation. Upon conclusion of the

1019

testimony, counsel for both parties waived the filing of written
briefs, proposed findings of fact, and conclusions of law. Instead,
. they agreed to present oral argument and receive a d.ecision from the
bench. After considering the evidence and oral argument, a decision
was rendered from the bench as follows (Tr. 84-86):
I find a violation existed. Section 57.20-3 directs
that workplaces, passageways, storerooms, and service
rooms shall be kept clean and orderly. The area in
question is on the east side of the conveyor belt.
Admittedly, a wider walkway exists on the west side of
the beltway. The area in question is approximately
two and a half (2-1/2) feet wide. Nevertheless, the area
pn the east side which is the area covered by the citation, is the only way to reach the east side of the
beltway. It was open-ended, and furthermore, ·the evidence demonstrates that maintenance and cleanup people
did walk through this area. Moreover, these people were
in this area to perform their assigned tasks. In addition, the area was available for complete transit from
one end to the other, to any individual who should be so
inclined. I recognize that, as I stated before, a wider
walkway existed on the west side of the beltway, on the
west side of the conveyor belt. Nevertheless, people do
not always do what is expected of them, and a great many
of the mandatory standards are written to restrict the
individual's freedom of action, in order sometimes to
protect them from themselves.
Accordingly, I hold that the area covered by the
citation was a passageway within the purview of the mandatory standard. The existence of the cited materials is
undisputed. Moreover, the inspector's estimate that the
accumulation had been t~ere for several days also is
undisputed. Based upon all this evidence, I find once
again that a violation existed.
The inspector testified a person could slip and fall
because of the debris. The hazard was increased because
the passageway was an incline and was narrow. -Based upon
this evidence, I find the violation was serious.
The operator's mill superintendent stated that the
operator has a cleanup plan whereby this area is cleaned
every three to five days. However, the inspector's estimate that the accumulation cited in the order had existed
for several days, is uncontradicted. Based upon the
estimate that the accumulation in question existed for
several days, I find the operator was negligent.

1020

In accordance with the stipulations of the parties, I
find the operator has no history of previous violations,
that the violation was abated in good faith, 'that the
operator is large in size, and that the imposition of any
penalty will not affect the operator's ability to continue
in business. A penalty of eighty-five dollars is imposed.
Citation Nos. 347617 and 347406
The Secretary and the operator introduced documentary exhibits
and· testimony with respect to both these citations at the same time.
Upon the conclusion of the testimony, counsel for ho.th parties waived
the filing of written briefs, proposed findings of fact, and conclusions of law. Instead, they agreed to present oral argument and
receive a decision from the bench. After considering the evidence
and oral argument, a decision was rendered from the bench as follows
(Tr. 136-139):
The following is a decision with respect to Citation
Nos. 347617 and 347406, both of which involve the same
mandatory standard and identi.cal facts. Section 57 .12-32
requires that inspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all
times except during testing or repairs. There is no dispute that covers were not present on the two brake release
switches involved in the two subject citations. The evidence indicates that heavier wiring had been placed in the
switches and that the existing covers would not fit over
them. According to the operator's witness, the covers
had been off for a month. This is
too long a' time to
fall within the exception in the mandatory standard for
repairs. Covers such.as these simply cannot be off indefinitely, especially where, as discussed here~fter, the
hazard presented by their absence was -so great.

far

The brake release switches were located in the hoist
pit. In order to reach the hoist pit, a man would have
to go down into the basement.and then back up again, six
feet of stairs into the hoist pit. The hoist pit was not
directly accessible from the surface. These factors do
not, however, affect the existence of a violation. Covers
were required. They were not provided and indeed they had
not been provided for a very long period of time. Therefore, the mandatory standard was violated.
One of the inspectors testified that there was enough
voltage in the exposed wiring to electrocute an individual, if he touched the open wiring. The testimony also
shows that electricians and maintenance people such as
greasers worked in this area. Even if these people were

1021

experienced, they should not have been exposed to this
hazard. Moreover, as the inspector stated, the floor was
greasy and a man could slip and reach out, thereby touching the brake release switch, and electrocuting himself.
Experience would be no protection against such an involuntary reaching out. Based upon this testimony, I find the
violation was extremely serious.
I recognize that there usually was a hydraulic oil
pan at the top of the stairs leading to the hydraulic
pit, and that it would impede an individual from readily
touching the switch. This, however, is not a defense
either to the existence of a violation or to the conclusion of extreme gravity. The hydraulic oil pan was not
designed and indeed, did not function as some sort of
guard. It certainly did not replace the need for a cover.
One of the inspectors testified that fittings in the hoist
pit were greased approximately once a week. So, at least,
once a week or so, the hydraulic oil pan had to be removed
for the greaser to get into the area. Moreover, an individual could step into the pan and get into the area. It
is no answer to say that a sensible or experienced man
would not do this. The Mine Safety Act is designed to
protect experienced and sensible people from doing the
unexpected. The Mine Safety Act limits the freedom of
individuals for their own protection.
Finally, although the inspector's testimony at that
point was not entirely clear, I find that there was no pan
in place on the day of his inspection. ·Accordingly, I
state once again that the violation exist~d and that it was
extremely serious. The absence of covers for one month
demonstrates a high degree of negligence, especially in
view of the serious haz~rd presented.
In accordance with the stipulations entered into
by the parties, I find that the operator has no history
of previous violations, that there was good faith abatement, that the imposition of a monetary penalty will not
affect the operator's ability to continue in business,
and that the operator is large in size.
I impose a penalty of two hundred and fifty dollars
for each of these citations. I would state that were it
not for the fact that the operator has no history of prior
violations, the penalty would be much higher. I believe
that the extreme gravity warrants the imposition of this
penalty which is substantially more than the Solicitor
recommended.

1022

ORDER
It is hereby ORDERED that as set forth herein, the dismissal of
certain citations from the bench be AFFIRMED and that the imposition
of penalties from the bench with respect to other ~itations, as is
also set forth herein, be AFFIRMED.
In accordance with the foregoing determinations, the operator is
ORDERED to pay $1,615 within 30 days from the date of this decision.

;=\f.~~~

Assistant Chief Administrative Law Judge

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 450 G0lden Gate Avenue, Box 36017,
San Francisco, CA 94102 (Certified Mail)
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills,
1700 TowneHouse Tower, 100 West Clarendon, Phoenix, AZ
85013 (Certified Mail)
Administrator, Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

1023

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSlON
OFFICE Of ADMINISTRATIVE LAW JUDGES
40l5 WILSON BOULcVARD
ARLINGTON, VIRGINIA 22203

UNITED STATES STSEL CORPORATION, .
Applicant
.v.
SECRETARY OF LABOR,
MINE.SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
UNITED MINE WORKERS OF A:1ERICA,
Respondent

Applications for Review
Docket No. BARB 79-276
Order No. 240507
January 16, 1979

!

Docket No. BARB 79-277
Order No. 240508
January 16, 1979
Concord Mine

DECISION
Appearances:

Billy M. Tennant, Esq., Pittsburgh, Pennsylvania,
· for Applicant;
Terry Price, Esq., u.s. Department of Labor, Office
of the Solicitor, Birmingham, Alabama, for Respondent.

Before:

Judge Forrest E. Stewart.

Two applications for review were filed pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 83 Stat. 742,
30 u.s.c. §§ 801-960 and applicable regulations.
The orders of withdrawal, dated January 16, 1979, alleged that
a violation of section 75.316 of Title 30, Code of Federal Regulations, 1/ existed at the Concord Hine on that date.

1/ 30 CFR 75.316 provides:
"A VP.ntilation system and methane ang dust control plan and
revisions thereof suitable to the conditions and the mining system of
the coal mine and approved by the Secretary shall be adopted by the
operator and set out in printed form en or before June 28, 1970. The
plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved
equipment as the Secretary may require, the quantity and velocity of
air reaching each working face, and such other information as the
Secretary may require. Such plan shall be reviewed.by the operator
and the Secretary at least every 6 months."
·

.1024

Order No. 240507 alleged that the following condition or practice
existed:
The Company's approved Ventilation System and Methane
and Dust Control Plan was not being complied with, in that
the line brattice was 19 feet and 10 inches from the deepest penetration of the working face of no. 18 room on
No. 011 working section. The Company's approved plan states
line brattice· will be maintained to within 10 feet of the
deepest pentration of all working faces.
Order No. 240508 alleged that the following condition or practice
existed:
The Company's approved Ventilation System and Methane
and. Dust Control Plan was not being complied with, in that
the line brattice was 20 feet and 6 inches from the deepest
penetration of the working face of No. 19 room on No. 011
working section. The Company's approved plan states line
brattice Will be maintained to Within 10 feet Of the deepest penetration of all working faces.
It was established at the hearing that, as alleged in Order of
Withdrawal No. 240507, the brattice extended only to within 19 feet
10 inches of the deepest penetration of the face in 18 Room. It was
also established that the line brattice extended only to within
20 feet 6 inches from the deepest penetration of the face in 19 Room,
as alleged in Order No. 240508. The evidence further established that
no coal was actually being cut, mined or loaded when the inspector
observed these conditions.
In a bench decision rendered at the hearing, .the above-captioned
applications for review were granted and Order Nos. 240507 and 240503
were vacated.
It was held that under the factual circumstances of this case,
line brattice was required to be maintained to within 10 feet of the
area of deepest penetration of all working faces (hereinafter 10-foot
line brattice) only when coal was actually being cut, mined or loaded.
Although there is a general requirement for continuous use of
line brattice to provide adequate ventilation in 30 CFR 75.302, J:../ the

'!:._/

30 CFR 75.302 reads, in pertinent part, as follows:
"Properly installed and adequately maintained line brattice or
other approved devices shall be continuously used from the last open
crosscut of an entry or room of each working section to provide adequate ventilation to the working faces for the miners and to remove
flammable, explosive, and noxious gases, dust, and explosive fumes,
unless the Secretary or his authorized 'representative permits an
exception to this require:aent, where 3uc 11 exception will not pose a
hazard to the miners." (Emphasis added.)

1025

10-foot criteria is set forth in 30 CFR 75.302-l(a) which specifically
requires line b~attice at that particular distance only while coal is
being cut, mined or loaded.
·
Petitioner has not alleged a violation of 30 CFR 75.302 and the
evidence does not establish that the line brattice in place at the
time of the inspection fails to meet the requirements of that section.
What petitioner alleges is a failure to meet the .10-foot requirement
as set forth in Respondent's approved ventilation plan which may con- .
.tain additional requirements authorized by 30 CFR 7 5 .302-l(a). This
section reads in pertinent part as follows:
Line brattice or any other appro.ved device used to
provide ventilation to the working face from which coal
is being cut, mined or loaded and other working faces so
designated by Coal Mine Safety Manager, in the approved
ventilation plan, shall be installed at a distance no
greater than 10 feet from the area of deepest penetration to which any portion of the face has been advanced

* * *·
This provision clearly designates the working face 3/ as that
place at which brattice is to be maintained. The modifying phrase
"from which coal is being cut mined or loaded" specifies the time at
which brattice is to be maintained. All working faces must be provided with line brattice meeting the 10-foot criteria during that
time period.
In argument, counsel stated that it was Petitioner's position
that the l!lOdifying phrase "refers to a location or a place and not
the duration."· If this were the correct interpretation, and the
phrase really referred to a place rather than a period of time, the
inspector would have been able to cite a violation of 30 CFR
75.302-l(a), rather than relying on the language of the ventilation
plan. The inspector indicated in his testimony that he understood
that he would have been able to issue a citation under a regulation if
coal were being cut, mined or loaded. In fact, if the location of
the line brattice had been in violation of 30 CFR 75.302-l(a), the
inspector should have invoked that section in order to be in compliance with MSHA policy that directed the issuance of citations for
violations of specific requirements of regulations rather than identical requirements in ventilation plans. !!../
3/ "Working face" is specifically defined in 30 CFR 75.2(g)(l) as
"[A]ny place in a coal mine in which·work of extracting coal from its
natural deposit in the earth is performed during the mining cycle."
4/ Thi·s decision does not hold that the inspector may not cite an
operator for violations of additional requirements. in ventilation
plans and it does not reach the legal issue as to the effect of
a. faih1re of· an inspector to follow MSHA policy or guidelines.

1026

As to the place where the requirement is effective, section
75.302-l(a) requires 10-foot line brattice at all working faces.
The· ventilation plan also requires 10-foot line brattlce at all
working faces. 5/
As to the time when the requirement is effective, section
75.302-l(a) requires .10-foot line brattice when coal is actually
being cut, mined or loaded. The ventilation plan is silent as to
the time when 10-foot line brattice is required during advance mining. .This silence cannot be cons trued as adding additional requirements to those in the resulation which require 10-foot line brattice
only while coal is being cut, mined or loaded. In order for the operator to be penalized for failure to maintain 10-foot line brattice at
times other than those specified in the regulation, the approved plans
should clearly state the additional requirements in such a way that the
operator is informed of his obligations.
It is obvious that the operator did not intend that brattice must
be maintained within 10 feet of the working face at all ttmes when it
submitted the ventilation plan and the roof control plan and that the
district manager did not so intend when he approved those plans. As a
practical matter, line brattice is maintained 10 feet fro~ the deepest
penetration of the working face in order to prevent the accumulation of
methane and dust. The inspector testified that brattice is necessary
principally at· those times during which the cutting, mining or loading
of coal being performed.
To construe the ventilation plan in a manner that would require
.10-foot line brattice at all times, even while coal was not being cut,
mined or loaded, would create a conflict with the roof control plan
which contained a specific exemption. By the inspector's admission,
there were times during which line brattlce did not have to be maintained to within 10 feet of the face since the approved roof control
plan specifically allowed the removal of line brattice during roof
bolting operations. The provision for its removal was included
because the line brattice presented a hazardous obstruction during
bolting. The inspector mentioned one occasion on which this obstruction resulted in severe injury to a miner's arm.
The language "of all working faces" in Respondent's ventilation
plan clearly does not mean that brattice be maintained at all times
in all working faces. With regards to maintenance of brattice at
working faces during advance mining, Respondent's ventilation plan
imposes requirements no stricter than those contained in 30 CFR
75.302-l(a).
~/

With regard to advance mining, the ventilation plan reads in pertinent
part that "line brattice w:i.11 be maintained to wit~1in 10 feet of the
area of deepest penetration of all wor~ing faces."

1027

ORDER
The bench decision is hereby AFFIRMED. Accordingly, it is
ORDERED that Order Nos. 240507 and 240508 are VACATED and the operator's applications for review are GRANTED.

Forrest E. Stewart
Administration Law Judge

Distribution:
Billy M. Tennant, Esq., United States Steel Corporation,
600 Grant Street, Pittsburgh, PA 15230 (Certified Mail)
Terry Price, Esq., Office of the Solicitor, U.S. Department of
Labor, 1929 9th Avenue, South, Birmingham, AL 35205
(Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th St., NW., Washington, DC 20005 (Certified Mail)

1028

FEDERAL MINE SAFETY AND HEALTH REVU?.:W COMIVHSSftON
OFFICE OF ADMINISTRATIVE LAW JUDGE!;.
40i5 WILSON BOULEVARD
ARLINGTON, V1RG INIA 22203

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

Civil Penalty Proceeding
Docket No. BARB 79-255-P
A/O No. Ol-00550-03007V
Boothton Strip Operations

BURGESS MINING AND CONSTRUCTION
CORPORATION,
Respondent
DECISION
Appearances:

Murray A. Battles, Esq., Birmingham, Alabama, for
Petitioner;
William E. Prescott, 111, Esq., Birmingham, Alabama,
for Respondent.

Before:

Judge Forrest E. Stewart

The operator was assessed a penalty of $200 in a bench decision
at a hearing held on May 25, 1979, for not prov.iding adequate berms
on the main haul road at its Boothton Strip Operations.
Citation No. 239933 which was issued on May 17, 1978, alleged
that the following condition or practice existed:
Berms were not provided on the outer banks of the main haul road
leading to and from the mine.
A subsequent citation dated May 22, 1978 stated:
Citation No. 239933 dated 5/17/78 is here by modified
to show correct mine as Boothton strip operation. This
citation is further modified tq show the following. The
condit·ion of inadequate berms existed on the haulage road
leaving to company pit No. 24. The foreman had to travel
the road a minimum of twice a day, because it was the
only means of access to the mine. The foreman who was a
certified man said, that no berm needed to be provided,
that there had never been a berm and no one told him he
needed a berm. It appeared that a berm had been provided
but had weathered down.
Citation No. 239933 was further modified by another citation
dated May 22, 1978, which stated:

1029

The citation number 239933 dated 5-17-78 is extended
because·of a misunderstanding.concerning the violation.
Citation No. 239933 dated 5-17-78 is hereby modified to
state the following: the inadequate berm begins approximately 2 tenths of a mile from the concrete bridge ~hat
crosses the Cahaba River and extends for approximately 250
feet (on the right side of the road). From this point the
condition exists· for 3 tenths (on the left side of the
road). Then. at a dis·tance of the 8 tenths of a mile from
the bridge; the cond~tion exists on both sides of the -road
approximately 100 feet. These conditions were viewed while
entering the pit from the bridge side.
The citation was terminated on May 24, 1978, after additional.
berms were provided:
In its answer to the Petition to assess civil penalty, Respondent
stated:
1.

That no violation of 30 CFR 77.1605-k occurred.

2.

That the road in question had been previously inspected
and the location of necessary berms specifically pinpointed
and berms constructed as required.

3.

That the area in question did not require berms.

At the hearing, it was established ~hat in 1972 a notice of violation had been issued for failure to have berms on the haul road and
that Respondent had filed an application for review. After colils.truction of berms on the portions of the 9-mile haul road designated by
Petitioner, the notice of violation was terminated and Respondent
withdrew its application for review.
On May 17, 1978, Inspector Franklin who was unaware of the 1972
violation and its abatement, issued citation No. 239933 because, in
his judgement, additional berms were needed.

The hazardous conditions on most of the 9-mile haul road had
been eliminated in 1972 by the installation of berms on the designated
sections but a slight hazard still existed in the areas design~ted by
the inspectors in 1978. Berms were required in the remaining areas
under criteria issued by Petitioner in October 1972.
The primary issues here -are whether ·or not there was a violation
of the mandatory safety standard cited aad the penalty which sll.ould
be assessed if there was, in fact, such a violation. The criteria as ·
set "forth in section 105(b) of the Federal Mine Safety and Health Act
of 1977, 30 use § 820 are:

1030

One, the appropriateness of the penalty to the size of
the business·of the operator charged.
Two, the operator's history of previous violations.
Three, whether the operator was negligent.
Four, the gravity of the violation.
Five, the demonstrated good faith of the operator
charged in attempting to achieve rapid compliance of noti-·
fication.
And six, the effect of the penalty on the operators'
ability to continue in business.
The record supports a finding that the company produced somewhat
less than half a million tons of coal per year at the time of the violation. The tonnage produced in the particular pit at which the violation was ci~ed was not established; however, it was established that
the pit at the time of the citations was not being extensively used and
not much coal was being mined at the time.
The record shows that from May 15, 1977 until May 14, 1979 there
were 56 paid violations in the total amount of $6,105.60. Most of
these violations were cited at the time of the inspection during
which the instant case arose. For the size of the company and the
size of the mine the record of violations is moderate.
It is found that the steepness of the embankment next to the
roadway was· such that berms or guardrails should have been installed
under the criteria set forth in Government's Exhibit No. 7.
As to whether or not the operator was negligent, I find that at
a prior inspection in 1972, a number of berms and guardrails were prescribed and that the operator complied with these requirements and
installed these berms and guardrails. As a result of the abatement
of this violation and these conditions and termination of the notice
of violation, the operator withdrew its application for review.
While this .does not prevent a violation from issuing, it does bear on
the questions of negligence a_nd the gravity of the violation. The
operator after complying with the requirements of the Bureau of Mines
in 1972, continued to operate without any further notice that additional berms were required until the inspection was performed in 1978.
Therefore, he had no way of knowing that additional berms or guardrails were .required. The operator did _not know that he was in _viola:'."'
tion and there is no indication that he _unreasonably failed to take
action to abate the condition for which the citation was eventually
issued in 1978. The 1978 abatement also has some bearing on the
gravity of the violation. It at least shows that the inspector at

1031

that time considered the berms and the quardrails to be sufficient to
meet the requirements of the law and possibly to make the operation
safer. We do have evidence on the record that the embankments next to
the sections of the roadway were steep and were of a nature as
to cause a truck or an automobile to turn over and ·possibly cause
injury to the occupant. Nevertheless, the greatest portion of the
unguarded and unbermed roadway was effectively fitted with guards and
had berms constructed on them in 1972. Only small portions of the
nine miles of roadway remained unfitted with berms at the time of
this citation.
It therefore would be improbable that injury or death would occur
as a. result of the operator's failure to have berms installed at the
three locations where they had not been installed. At one point berms
had not been installed for 250 feet on the right side of the road. At
another point, they were missing for only three-tenths of a mile on
the left side of the road. At the third point, they were missing for
only 100 feet, on both sides of the road.
As to the demonstrated good faith of the operator charged in
attempting to achieve rapid compliance after notification of a violation, I find that the operator exercised good faith in abating the violation and erecting additional berms. Although the violation was not
abated within the time alloted, the operator did have some foundation
upon which to base a good faith argument as to whether berms were
required by the regulation. After the original citation was modified
to show the exact.nature of the abatement to br:ing to the operator in
. compliance, the operator soon thereafter was ·successful in abating the
condition.
The final criteria hearing upon the assessment of a civil penalty
is the effect of the penalty on the operator's ability to continue i11
his business. The operator· has presented nothing to indicate that an
appropriate penalty in this case would prevent him from continuing in
his business; therefore, I find that a penalty would not effect his
ability to continue.
In view of the findings concerning the six statutory criteria, I
find that the assessment of a penalty of $200 is appropriate.
The bench decision issued on May 25, 1979 is AFFIRMED.
ORDER
Respondent is ORDERED to pay the amount of $200 within 30 days
of the date of this decision.

Forrest E. Stewart
Administrative Law Judge

1032

Distribution:
Stephen P. Kramer, Esq., Office of the Solicitor, MSHA, U.S.
·Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

w. E. Prescott, III, Esq., Burgess Mining and Construction
Corporation, P.O. Box 26340, Birmingham, AL 35226
(Certified Mail)

1033

FEDERAL MINE SAFETY AND HEALTH REVIE\'V COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

Civil Penalty Proceeding

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

Docket No. WILK 79-33-PM
A/O No. 43-00063-05001

v.
Websterville Quarry & Mill
WELLS-LAMSON QUARRY CO., INC.,
Respondent
DECISION
Appearances:

John Casler, Esq., Office of the Solicitor, U.S.
Department of Labor, Boston, Massachusetts, for
Petit~oner;

Gary D. McQuesten, Esq., Richard E. Davis Associates,
Barre, Vermont, for Respondent.
Before:

Judge Stewart
PROCEDURAL BACKGROUND

The above-captioned case is a civil penalty proceeding brought
pursuant to Section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 820(a), hereinafter referred to as the Act.
On November 28, 1978, Petitioner filed with the Mine Safety and
Health Review Commission a petition for assessment of civil penalty
for the seven violations included under this docket number. Respondent filed its answer to this petition on January 9, 1979. A hearing
.was held on April 11, 1979, in Montpelier, Vermont.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The violations alleged herein were observed by Federal Mine
Inspector John Rouba in the course of a regular inspection of Respondent 1 s Websterville Quarry and Mill. This inspection was conducted
over a 3-day period in May, 1978.
The Websterville Quarry, an open-pit operation, is Respondent's
only mine. Its 65 employees worked a total o.f 99, QOO man-hours in

1034

1978. The quarry did not operate on a profitable basis in 1978.
There is, however, no indication on the record that any penalty
assessed in this proceeding will have an adverse effect on the Respondent's ability to remain in business. There is no applicable history
of prior paid violations.
Citation No. 211911 was issued because the inspector observed
that one of Respondent's Euclid haulage trucks had an inoperative
backup alarm. The driver of the vehicle had parked it and was waiting
to be called to haul waste materials. This condition was in violation
of 30 CFR 56.9-2 which' requires that equipment defects affecting
safety be corrected before the equipment is used. It was abated as
quickly as was possible.
The driver of the truck said that he had disconnected the alarm
because he was tired of listening to it. Robert Stewart, Respondent's
general manager testified that the company had no knowledge of the
condition. Nevertheless, negligence existed on the part of Respondent
because mine management should have known of the inoperative alarm.
The absence of an operative alarm was obvious and the condition had
existed for about 1 week, a long enough period of time to warrant its
discovery.
When the violation was observed by the inspector there were no
workers in the vicinity of the vehicle. However, any of a number of
employees could be exposed in the danger in the areas where waste
materials are loaded onto the truck. In a noisy area, a worker might
be unaware that the truck was backing up. If an accident were to
occur, it could result in a fatality.
Citation No. 211912 was issued because the inspector observed
unguarded gears on the rope drum of the hoist. This condition was in
violation 30 CFR 56.14-.:1, which requires that gears which may be contacted by persons, and which may cause injury to persons, shall be
guarded. The condition was rapidly abated.
The operator was negligent in that it knew of the condition yet
failed to take steps to abate it. The gears had been unguarded for
approximately 1 month. Mr. Stewart testified that the operator had
waited to guard the gears.until it could obtain the opinion of an
inspector. Mine management did not seek information concerning a
proper guard from MSHA during this time.
An accident was prob?ble. As an employee entered the hoist room,
he could reach out and touch the exposed gears. Tnere were, however,
some non-moving machine parts between the walkway and the gears. If
an accident were to occur, the likely result would be mangling or loss
of fingers or arms.

1035

Citation No. 211913 was issued because the inspector observed
unguarded resistor grids on a 220-volt hoist motor. It was impractical to insulate these grids and they were not protected by their
location. This condition was in violation of 30 CFR 56.12-23. The
inspector testified that Respondent did everything i"n its power to
abate the condition immediately;
The operator was negligent in that it knew or should have known
of the condition yet failed to abate it. The condition had existed
for approximately 1 month and other grids in the v:i,cinity had been
guarded.
.
It was probable that the condition would result in an accident.
A walkway led to the exposed grids. An individual who contacted two
of the wires simultaneously could be electrocuted.
Citation No. 211914 was issued because several splices in the
lead wires to a portable pump were insufficiently insulated. This
condition was in violation of 30 CFR 56.12-13(b) which requires that
splices in power cables be insulated to a degree at least equal to
that of the original; and sealed to exclude mositure. The condition
was corrected within the time set by the inspector for abatement.
The operator was negligent in that it should have known of the
insufficiently insulated splices. The condition of the wire was
visually obvious and the wire was located in front of a walkway
in an area where supervisory personnel can be found much of the
time.
It was probable that the condition would result in an accident.
The area in which the wire was located was frequently damp. In the
inspector 1 s judgement, the s.plices could have been wet enough to cause
a person who stepped on th.e wire or grasped it to suffer electrical
shock. This electrical shock could result in injury rangir..g from
burns to electrocution.
Citation No. 211915 was issued because railings had not been
provided to prevent persons from falling off an elevated walkway.
This condition was in violation of 30 CFR 56.11-2. It was promptly
abated.
The operator was negligent in thdt it should have known of the
condition. It was visually obvious that the area was without guards.
In fairness, it must be noted that the condition had existed for
approximately 15 years. Moreover, Inspector Rouba had personally
inspected the area on 4 or 5 prior occasions but had not issued a
citation.
The inspector testified that an accident was less than probable.
The probability that an accident would occur was reduced by the

1036

remoteness of the area and the fact that orily a 4 foot section of the
walkway was unguarded. If an accident were to occur a person could
fall 6 feet into a pond of water which was below the-walkway.
Citation No. 211916 was issued because a dry wooden _platform or
insulating mat had not been provided at the control panel for the roll
lathe at the wire-saw mill. This condition was in violation of
30 CFR 56.12-20. It was immediately abated.
The operator was negligent in that it should have known of the
condition. A mill foreman was in the area at all times.
The inspector testified that an accident would be probable if the
panel became energized. The panel was equipped however, with ground
fault indicator lights and circuit breakers. In the event that the
panel became energized, the dampness of the area would increase the
likelihood of accident and injury. The expected injury ranged from
burns to electrocution.
Citation No. 211917 was issued because a shaft on the boiler
make-up pump motor was unguarded. The shaft was located at floor
level in the wire-saw mill boiler room. The inspector cited a violation of 30 CFR 56.14-1. This section requires that shafts which may
be contacted by persons, and which may cause injury to persons, shall
be guarded.
Mr. Stewart testified that the boiler in question was used only
during winter months. It had been shut down in April, 1978, and was
to be used next in October. After the machine was shut down, maintenance was undertaken. The guard was taken off and left off to allow
for adjustments upon completion of the maintenance, Because the
ma~hinery was not to be used until October, the shaft could not cause
the injury contemplated in the regulation. The failure to guard the
shaft on this boiler motor was, therefore, not in violation of section
56.14-1.
Citation No. 211918 was issued because access to the main mill
plant control panel switches had not been kept clear of unnecessary
materials. The walkway contained timber, boards and angle irons.
This condition was in violation of 30 CFR 56.20-3(a). The inspector
testified that the condition was corrected with an excellent degree
of good faith.
The operator was negligent in that the condition was visually
obvious. The operator knew or should have known of its existence •
. It was probable that a tripping accident would occur because of
the condition. Employees had to walk over these materials· to get to
the panel. The inspector observed Respondent's ·employees doing so.
Minor injuries would be the expected result of a tripping accident
in these circumstances,

1637

ASSESSMENT
In consideration of the findings of fact and conclusions of taw
contained in this decision, the following assessments are appropriate
under the criteria of section 110 of the Act.
Citation No.

Penalty

211911
211912
211913
211914
211915
211916
211918

$72
98
72
84
84
72
72
ORDER

The civil penalty proceeding with respect to Citation No. 211917
is hereby DISMISSED.
The Respondent is hereby ORDERED to pay the sum of $554 within
30 days of the date of this d.ecision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Michael v. Durkin, Esq., Office of the Solicitor, MSHA,
U.S. Department of Lab.or, 4015 Wilson Boulevard, Arlington, VA
22203
Gary D. McQuesten, Esq., Richard E. Davis Associates, Inc.,
P.O. Box 666, Barre, VT. 05641 (Certified Mail)

1038.

FEDERAL l'VllNE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

AVG

~ ~t1'

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

Docket No. WILK 79-13-PM
A.O. No. 30-00090-05001

v.

Potter Quarry and Mill

Civil Penalty Proceeding

CUT SLATE, INC.;
Respondent
DECISION AND ORDER ON MOTION TO APPROVE SETTLEMENT
This matter was assigned to the presiding judge on May 19,
1979. A review of the record disclosed that on December 20, 1978,
the operator filed an answer admitting the three violations charged
but contending that in view of his prompt abatement of the hazards
cited the penalties assessed should be forgiven and remitted. ".!./
In 1976, the Board of Mine Operations Appeals held that the Mine
Safety Act does not allow remittiturs, even for no-fault violations.
R. M. Coal Company, 7 IBMA 64 (1976). Since the operator did not
claim the penalties assessed were arbitrary or excessive except
to the extent there was no provision for total remission and since
there appeared to be no triable issue of fact, the parties were
directed to confer and file a motion to approve settlement or
appear at a prehearing conference in Arlington, Virginia on June 5
to discuss their differences.
When the operator refused to discuss settlement with counsel
for the Secretary, reiterated his claim for remission, and requested
the "matter be disposed of without requiring my attendance at a
hearing" the presiding judge carefully reviewed the record and
suggested that counsel for the Secretary again explain that abatement
was no justification for dismissing a petition to assess penalties.
The presiding judge also took note of the fact that the operator
objected to attending a prehearing settlement conference in Arlington,
Virginia because of the time and expense involved. Since the presiding

ll Respondent operates a small slate quarry near the town of
Hampton, New York which is about 75 miles north of Albany-Troy,
New York.

1039

judge had attempted to give "due regard for the convenience and
necessity of the parties" before issuing the notice of prehearing
conference, the principal focus at; this point was on the operator's
expressed desire to have the matter resolved without even a prehearing.
When counsel advised that the operator insisted on total
remission and when the operator also failed to appear at the prehearing conference, the presiding judge issued a decision and order
of default assessing penalties in the amount originally proposed,
namely $170.00. ];,/
Thereafter, the Connnission acting on a complaint relayed by a
congressional committee, directed the default assessment for
review and invited briefs from the parties. Only the Solicitor
responded with a brief that failed to set forth the facts revealed
by the record. For example, the brief failed to note the operator's
request that his claim for remission be disposed of on the basis of
his answer and letter of August 8, 19.78 without a hearing. The
brief did suggest, however, that the matter be remanded to the
presiding judge for a more detailed explanation of the factors considered in issuing the default assessment.
Instead, the Commissio~ issued its decision of July 25, 1979
in which it erroneously assumed the only basis for the default
assessment was the operator's failure to attend the prehearing
conference of June 5, 1979. ]/ As I have indicated, and as the

2/ In view of the operator's claim of a travel imposition and
the presiding judge's assumption it was made in good faith and not
for the purpose of harrassment, the order of default was issued in
the disjunctive. In other words, even if the operator had a valid
excuse for not wanting to spend $400.00 to argue his remission point
in Arlington then he had no excuse for refusing to discuss settlement
of the matter with Mr. Walsh (one of the Secretary's most able and
competent lawyers) when the operator had admitted the violations
charged, made no claim the penalties initially proposed were excessive
and was resting his case solely on a claim of total remission that as
a matter of law could not be considered.
]./ The Connnission held that under section 5(a) of the APA,
5 U.S.C. § 554(b) and its rules of practice, the only factor
relevant to a determination of the balance of convenience for a
prehearing site is its distance from the situs of the operator's
mine. Thus, the Commission held that "additional cost to the government" is not to be considered since considerations of "due process"
and· "appearances" of overreaching must be avoided at all costs.
(Footnote 3 continued on page 3)

1040

record clearly shows, that was not correct. The operator's failure
to appear at the prehearing conference was only one of the two
factors considered. The principal factor was the operator's failure
(Footnote 3 continued)
Until the Commission established this policy, the presiding judge
believed that under the statute and the Commission's rules of practice
he was required t.o "give due regard to the convenience and necessity
of the parties" including the government agencies involved and "other
relevant factors" including the comparative expense to the parties.
Accordingly, he took official notice of the fact that to transport
to and maintain the Secretary's counsel and the presiding judge in
Rutland, Vermont, the hearing site nearest Hampton, New York, and
return would cost the government agencies involved a minimum $750.00,
whereas the cost to the operator of sending one representative to
discuss settlement in Arlington, Virginia would cost a minimum of
$400.00. The cost to the operator, of course, would actually be
much less since it would be a business. expense deductible from his
income tax. Furthermore, in Arlington a Commission hearing room was
available'whereas in Rutland a hearing room had to be obtained from
a state agency. Thus, when the presiding judge balanced the costs
and convenience of the government agencies against that of respondent
it appeared the balance of convenience favored holding the settlement
conference in Arlington.
The only authority cited by the Commission for disregarding
the plain language of the statute and its own rules was a case
decided five years before passage of section 5(a) of the APA.
Furthermore, the case involved the setting of a site for a protracted evidentiary hearing that involved the travel and maintenance
of several witnesses not a single representative for a one day
settlement conference. The cases that have interpreted section 5(a)
since its passage in 1946 have uniformly held that "Due regard for
the convenience and necessity of the parties cannot be divorced
from.the convenience of the agency." Burnham Trucking Co, v.
United States, 216 F. Supp. 561, 564 (D. Mass. 1963) (3 Judge Court);
Maremont v. F.T.C. 431 F. 2d 124, 129 (7th Cir. 1970). It is
respectfully suggested that at its earliest opportunity the Commission
reconsider its sweeping amendment .of section 5(a) of the APA.

1041

to advance a defense that required an evidentiary.hearing, his
admission of the three violations charged, and his failure to show
or even claim that the penalties proposed were arbitrary or
excessive, and his failure in the light of this to make a reasonable
. excuse for his refusal to discuss settlement with counsel for the
Secretary. Contrary to the Commission's view, the operator was
not penalized for asserting his. right to contest the violations.
He did not contest the violations only the Secretary's refusal to
grant him a total remission, a type of relief not available under
the Act with or without a hearing. !±./
Because of the views expressed by the Commission, after remand
the matter was set for another prehearing, and, if necessary,
evidentiary hearing in Rutland, Vermont. Shortly thereafter the
operator agreed to pay the penalties assessed under the default
order of June 5 and counsel for the Secretary filed a motion to
approve settlement.
Based on my independent evaluation and de novo review, I find
the penalties proposed, while on the low side, acceptable and 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 penalty agreed upon, $170.00,·on or before Friday,
August 24, 1979, and that subject to p
ent the captioned petition
be DISMISSED.

4/ Oversight committees and the Commission should resist the
tempt-;-tion to usurp the presiding judge's authority to regulate the
course of adjudicatory proceedings, especially where they do not
understand the details of the day-to-day happenings or the parties'
litigating posture as reflected in the pleadings. See, Appalachian
Power Co., 35 Ad. L. 2d 574, 578 (FPC 1974). The committees and the
Commission are entitled to hold the judges accountable but they
should do so on the basis of an informed understanding and not mere
surmise. There is as strong a public interest in avoiding harrassment
of the judges as the parties. Litigation brought merely to harrass
is a wholly unredeemed burden and an affront to the administrative
process.

1042

Distribution:
John R. Griffith, Secretary-Treasurer, Cut Slat~, Inc., Depot
Street, Fair Haven, VT 05743 (Certified Mail)
Joseph M. Walsh, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203

1043

FEDERAL MINE SAFETY AND HEALTH REVIEW COl\1MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

4 '9?$
CLIMAX MOLYBDENUM COMPANY,
A Division of AMAX, Inc.,
Applicant
v.

Applications for Review

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

Docket No. DENV 79-103-M
Citation No. 333647

OIL, CHEMICAL AUD ATOMIC
WORKERS' INTERNATIONAL UNION,
LOCAL 2-24410,
Respondent

Docket No. DENV 79-105-M
Citation No. 333649

Docket No. DENV 79-102-M
Citation No. 333646

Docket No. DENV 79-104-M
Citation No. 333648

Climax Mine

DECISION
Appearances: Hugh A. Burns, Esq., and Rosemary M. Collyer, Esq.,
Dawson, Nagel, Sherman & Howard, Denver, Colorado;
W. Michael Hackett, Esq., Climax Molybdenum Company,
for Applicant;
Robert A. Cohen, Esq., and Edward c. Hugler, Esq.,
Office of the Solicitor, u. s. Department of Labor,
for Respondent MSHA;
David A. Jones Jr., Earl Dungan and Raphael Moure, Oil
Chemical and Atomic Workers' International Union, Local
No. 2-24410, for Respondent Union.
Before:

Administrative Law Judge Michels

These proceedings are applicat;i.ons ·for review of citations
brought by Climax Molybdenum Company, Applicant, pursuant to section
105 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815. Applicant contested the merits of the citations, each of which
charge a violation of mandatory standard 30 CFR 57.5-5 in that the
silica bearing dust level for the surveyed miners allegedly exceeded
the allowable concentration and it also contested the reasonableness
of the length of the abatement ti.me fixed in the citations.

1044

The matters were first scheduled for hearing for February 27,
1979, but the hearing date was continued at the request of the parties. After a number of prehearing conferences, some of which were
-by telephone, these matters finally were set for hearing on July 9,
1979, in Denver, Colorado.
On July 2, 1979, Respondent filed a motion to dismiss alleging
(a) that MSHA determined, upon review of the discovery material,
that it could not "sustain the particular violations alleged",
(b) that Climax has indicated it will continue to work on dust control, and (c) that for these reasons MSHA will .vacate the citations.
In effect Respondent requested dismissal on the ground of mootness.
Applicant opposed this motion and requested a full hearing.
The parties were given an appropriate schedule within which to file
the legal memoranda or positions on the issue of dismissal. A full
opportunity was granted to the parties including the Local Oil,
Chemical and Atomic Workers' Union, to discuss their positions
on this issue at a conference in Denver, Colorado, he.ld July 9,
1979.
Thereafter, on July 10, 1979, a ruling was made from the bench
granting MSHA's motion to dismiss. This decision, with a few grammatical corrections, is set forth below:
Decision from the Bench
ADMINISTRATIVE LAW JUDGE MICHELS:
come to order.

The hearing will

As I stated before we went on the record, this is a .continuation of the prehearing conference that began yesterday,
at which time the parties presented their positions on the
motion to dismiss which has been submitted by MSHA. And as
I announced then, I would attempt to rule on that today.
So I' 11 proceed to do that. This will be a ruling from the
bench, and I think it will be self-explanatory. So this is
the ruling on Respondent's motion to dismiss.
On July 2, 1979, MSHA moved to dismiss these proceedings on the following grounds: (a) based on its prehearing
review, Counsel determined that it "cannot sustain the particular violations alleged;" (b) that Climax has shown indications that it will continue to work on the control of the
dust ~t Climax Mine; and (c) that the. citations are to be
vacated. And I should note that subsequent filing has indicated that the notices are in fact now vacated.
Respondent Local No. 2-24410 of the Oil, Chemical and
Atomic Workers Union has not filed a written response to

1045

this motion, but its representatives have stated on the
record that they concur in the motion to dismiss. And so
they have been in effect heard on the motion.
On July 9, 1979, the Applicant herein filed a memorandum in opposition to MSHA's motion to dismiss. It has
argued (a). that the presiding Judge has jurisdiction under
the Act to direct the relief which it seeks regarding the
interpretation and application of the dust control standard;
(b) the controversy is not rendered moot by MSHA's vacation·
of the citations; and (c) that the case is not mdot because
justiciable issues have survived the vacation of the
citation.
This issue, that is of the request for dismissal, was
thoroughly argued, as I previously stated, during the prehearing conference yesterday. The parties are prepared for
hearing pursuant to my instructions. However, it is my
view, as I indicated at the conference yesterday, that the
matter of the vacating of the citations and the request for
dismissal is an issue which properly should be decided at
this time before going to hearing. I will, therefore, proceed to make my decision. This is based upon the submissions of the parties, the arguments made on the record, and
upon a review of the cases which have been submitted and
submitted with the legal briefs.
I will enter a formal written order hereafter affirming this decision from the bench. And I would reserve the
right, however, to make necessary corrections in such
formal order.
·
Now, at this time I would ask that the parties bear
with me for a rather lengthy statement that I have in which
I want to elaborate on the reasons for my decision. And
that decision is that I will grant the motion to dismiss.
I have studied the cases cited by the Applicant, and
I will say quite briefly, because of the shortness of the
time, that I am not convinced that these establish a clear
basis for the continuing litigation in these proceedings
where the charging documents have been vacated by the
Government.
The Applicant as I understand it relies in part on the
rule announced in the Southern Pacific Terminal Company v.
Interstate Commerce Commission, 219 U.S. 498 (1910), in
which the Court held to the effect that short term orders
capable of repetition yet evading review are not dismissible on the grounds of mootness. It is my view that these

1046

proceedings do not present an issue as precisely defined
as it was in the Southern case; and further, that there
is no evidence these citations are continuing.or repetitive •.
In Eastern Associated Coal Corporation, also cited by
the Applicant, the Board permitted review of a vacated
imminent danger order because there was a major issue left
unresolved; that is, the continued issuance of such orders
in circumstances where imminent danger did not exist. The
operator in such instance, as I view it at least, was
directly and immediately affected by future orders, because
they would result in a closure of its mine.
Now, I recognize that an operator may also be affected
by a citation, so I don't make a big point of that distinction because the Commission in its Energy Fuels. decision,
Denver 78-410, May 1, 1979, did point out the effect citations could have and did extend the right to a review of
citations in appropriate circumstances. However, I believe
it is clear that an operator nevertheless would not be
affected so directly.
Moreover, at least it seems to me, in Eastern the problem was one of a recurring and continuing nature and like
that in Southern, all the time evading review. It was a
clear and precise issue under a particular provision of law
as to which review might otherwise be denied to the
operator. Such considerations do not in my view exist in
these proceedings. There is no single issue of a clear and
precise nature. The issues in fact as phrased by the
operator are of a wide and varied nature, covering detailed
questions which may arise in a litigated proceeding.
There is no evidence that issuance of the citatinns is
a matter of repetition under circumstances which the
operator is continually denied a review. It is possible
that similar issues may arise in a future case or in future
cases of a related nature. But there is no reason
to believe on this record that in such a case the operator
would not receive a full review of the merits.
Accordingly, I believe that such cases cited by the
Applicant as supporting its ·request for a full hearing are
distinguishable and are not sound precedent for the action
it seeks. The Applicant also relies on a series of cases
for the asserted proposition that "a case is not rendered
moot where there is a need for a determination of the
question involved to serve as a guide to the public agency
which may" -- parts at this point are omitted -- "act again
in the same manner .." There is no showing here of the

1047

issuance of citations in prior situations and their vacation which would suggest a continuing practice or the need
to determine a question for guidance.
This is not to say that there will be no similar
citations in the future. But if so, that future occasion
would be the time to consider the possibility of the need
for a decision to provide the guidance. Counsel for MSHA
in his argument has clearly suggested, at least it seems
to me, that some mistakes have been made. As a result, he
has in.fonned the Court that procedures have been modified
and a policy directive is to be issued shortly. Thus,
there is every reason to believe that the mistakes or
errors of the past, if any, are not to be repeated.
Furthermore, these cases, that is the pending cases,
are not the type in which it can be said with confidence
that the issues in subsequent cases will be the .same. In
all probability they ~ill be different. The testing will
no doubt take place on different miners in different places
c.nd under different circumstances. While the general considerations may be the same, it seems clear that the facts
will differ in relevant and important detail. Thus, a decision on the merits in these proceedings would not necessarily be dispositive of charges in other subsequent cases.
My principal difficulty, however, with the request to
hold a hearing in spite of the vacation of the citations
is that such a hearing would probably not accomplish.anything that cannot now be accomplished or decided on the
record as it stands. The Applicant analogizes this situation to that of a plaintiff-defendant in a civil case under
the Federal Rules. Applicant has made no suggestion,
however, that short of a summary judgment a plaintiff in a
civil suit would gain more than Applicant will receive here;
namely, a dismissal of the action.
The question of what is to be gained by a full trial
is a very real one. As I view this, it is a foregone conclusion that MSHA will not succeed because it has declared
it cannot prove its case. Thus, any hearing would be
wholly one-sided in which the Court would receive a more
detailed showing of the Applicant's position and further
proof that it is entitled to dismissal. But if it is
entitled to dismissal [after a hearing] and a decision to
that effect, it is entitled to that on the record as it now
exists. There is no need for a trial to prove what is
already known; that is, that MSHA cannot sustain its burden
of proof in these cases.

1048

I realize that Applicant is seeking something more;
namely, an affirmative ruling on certain statements which
it has presented as the ."issues of fact and law." I do not
propose to give such an affirmative ruling on these issues.
That would be a far-reaching departure from the relatively
precise and established issues presented in cases such as
Southern and the Board's Eastern Associated m~tter. It
would in my view be tantamount to an advisory opinion on
matters, some of which are purely procedural issues. These
should not be decided other than in a strict adversary context in my view.
Applicant finds fault with MSHA and distinguishes these
proceedings from Reliable Coal in part because MSHA here is
making no "concession of error." This is not exactly true.
MSHA in this conference has in effect, if not explicitly,
conceded that the citations were erroneously issued. The
Applicant t however, wants a concession of er_ror ·along the
precise lines of the issues framed by itself. That is
unacceptable as I view the matter.
MSHA disputes the issues as phrased by the Applicant,
and there is no clear certainty that all of such statement
of issues would necessarily be the issues in a fully litigated proceeding.
I believe the Applicant, because of the vacation of
the citations, has obtained in these cases all the relief
it can reasonably expect to obtain. It is true, of course,
that the vacation of the citations unfortunately leaves
undecided some issues which may we_ll have been decided in a
litigated case and would then have been available for precedent and guidance. Some of these issues, however, such as
whether MSHA has the burden of proving dust concentrations
in excess of the TLV and the feasibility and practicability
of any dust control measure not in use and whether MSHA has
the burden of proving any feasibility of any dust control
measures at the Climax Mine and others, are apparently procedural in nature.
It would not be appropriate to address these issues
outside of the contested proceeding. A ruling on such
issues in the posture of this proceeding would be akin to
dicta and be of little use in the final resolution in some
possible future case.
I cannot conclude this decision without a summary of
the efforts which led to the present posture of the proceedings. The issues presented originated nearly nine
months ago. Climax, according to its statement, has undergone great-expense, time, effort, and money in order to

1049

properly prepare for an administrative resolution of the
issues. It alleges that, up until a week ago, MSHA has
consistently refused to vacate the citations. The Applicant asserts that this action raises a specter that will
shadow the entire enforcement procedures under the Act
and that to condone the agency's action is to grant it a
license to effect its desires over the operator though it
has no real right to do so.
I don't view the action of MSHA as being oppressive
as Appli·cant has claimed. If I did that, some appropriate
remedy would I think be in order. Nevertheless, the conduct of MSHA as shown on this record cannot be entirely
condoned. 1/ It seems unusual, to say the least, that MSHA
could not have determined much earlier in the investigation
that it had no case. Yet it continued its investigation and
discovery at what has been a considerable cost to the Applicant in money and time. Moreover, there is at least a suspicion that MSHA is retreating now only to appear another
day when it has better proof.
Further, counsel for MSHA concedes that it has been a
learning experience for MSHA though, of course, this has
~een in part at the operator's expense.
Whether or not
such tactics are permissible, the end result is to cause the
operator a considerable amount of hassle and uncertainty. I
understand, of course, that there are areas of enforcement
here that are new to MSHA and thus, as was argued, some mis··
takes are to be expected. That, of course, is of little
solace to the operator.
Counsel for MSHA has argued in effect, at least as I
understand it, that the operator is not really deserving of
too much sympathy here, that such actions that have occurred
·are normal and expected in the course of administrative
enforcement. I cannot subscribe to that view. The regulations which all mines are subjected to call for considerable
effort on the part of the operators. And in applying these
regulations they should be treated as fairly and equitably
as it is possible to do.
1/ This reference is not intended to be critical of particular
counsel.
Also, no criticism is intended of MSHA's action in bringing these
proceedings. Clearly, the Secretary must at times proceed even in
doubtful areas if new technological breakthroughs in safety are to be
achieved. The question is whether such experimentation should be all at
the expense of the industry and, in particular, one member of the
industry.

1050

In this instance, a mistake or error apparently was
made in issuing these citations, and the operator has been
subjected, at least by its own account, to a great deal of
expense and effort. It seems to me; at least in certain
narrowly defined circumstances such as this where the operator has been so improperly 2/ cited and goes to a large
expense to defend itself, that it is entitled to some kind
of setoff. This will be in accordance with the Board
rulings which have permitted setof fs where large expenses
have resu'ited from mine closures. Applicant here is actually in a better position to claim a setoff since it has
not been found to be in violation of the Act. 1/
l'm, of course, reasonably certain that MSHA will
resist the implementation of any such setoff on the ground
that it will interfere with the enforcement of the Act. I
don't see that enforcement would be affected. It is a
matter in my mind of a simple equity and fairness. Since
no penalty is involved in these proceedings, I am in no
position, of course, to implement any setoff. However, as
part of this decision, I hereby recommend to the Commission,
in connection with possible future penalties which may be
incurred by this company in other cases, that it consider
in the interest of fairness and in light of the particular
circumstances of these proceedings a setoff to at least
in part compensate the operator for its costs in this
litigation.
I make this recommendation with the condition that
within ten days the operator requests such a setoff and
submit a statement of its direct costs for the record.
MSHA will have ten days thereafter to comment on this
statement submitted by the operator if it chooses to do
so.
This concludes my decision on the motion to dismiss.
Accordingly, the motion to dismiss is hereby granted. As
I view and understand the situation since I have granted
the motion to dismiss, that would mean that there is
nothing further to be resolved. And these proceedings are
dismissed, and there is no further need for action.

2/

The word 11 improperly 11 was used here in the sense of its meaning of
11'not appropriate" or "incorrect."
3/ The reference to Board cases was intended only to suggest that the
concept of a 11 set off 11 has been sanctioned in the field of mine health
and safety. It is obvious that the Board cases are not exact precedents for the action here recommended, except for the equitable principle involved. North American Coal Company 3 IBMA 93 (1974);
Zeigier Coal Company 3 IBMA 366 (1974). It can hardly be contended,
however, tha·t the Commission must always follow· these cases. It
is clearly free to make its own determination.

1051

Subsequent to this decision, the following additional documents
were received: Applicant's statement of direct costs for set off
showing costs totalling $190,495.95, and its request that these
costs be set off against future penalties; the Secretary of Labor's
memorandum opposing the setoff claim and Applicant's supplement to.
its statement of costs for setoff. The Applicant's submissions
have complied with the conditions set forth in the decision for a
recommendation for a setoff to the Commission.
The decision from the bench granting the motion to dismiss the
applications for review is hereby affirmed and these applications for
review are dismissed.
Further, the preconditions having been met, I affirm my decision
to recommend to the Commission, that in connection with possible
future penalties which may be incurred by Applicant in other cases,
the Commission consider, in the interest of fairness and in light of
the particular circumstances of these proceedings, granting the Applicant a setoff to at least in part compensate it for its costs in these
proceedings. I hereby so recommend.

C/'-7~P~
Franklin P. Michels
Administrative' Law Judge
Distribution:
Hugh A. Burns & Rosemary M. Collyer, Esqs., 2900 First of Denver
Plaza, 633 17th St., Denver, CO 80202 (Certified Mail)
W. Michael Hackett, Esq., Climax Molybdenum Co., Amax, Inc.,
13949 West Colfax Ave., Bldg. No. 1, Golden, CO 80401
(Certified Mail)
Edward c. Hugler and Robert Conen, Esqs., MSHA Trials Branch,
Office of the Solicitor, u. s. Depattment of Labor, 4015
Wilson Blvd, Arlington, VA 22203
David A. Jones, Jr., President, Oil, Chemical and Atomic Workers'
International Union, Local No. 2-24410, P. o. Box 949,
Leadville, CO 8046i (Certified Mail)
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local Union No. 1823, P. o. Box 102, Minturn, CO 81645
(Certified Mail)

1052

FEDERAL l\~INE SAFETY AN.p HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WIS.SON aou1.EVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. WEVA 79-35
A/O No. 46-01433-03024

v.
Loveridge Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
The Solicitor has filed a motion to approve a settlement in the
above-captioned proceeding.
In his motion, the Solicitor advises the following:

1. The attorney for the Secretary and the respondent's
attorney Karl T. Skrypak have discussed the alleged violation
and the six statutory criteria stated in Section 110 of the
Federal Mine Safety and Health Act of 1977.
2. Pursuant to those discussions, an agreed settlement
has been reached between the parties in the amount of $114.00.
The original assessment for the alleged violation was $160.00.

3. A reduction from the original assessment is warranted
because this violation was committed by an independent contractor, West Virginia Electric Company, performing operations
at Respondent's mine. This citation was issued when an
inspector observed an employee of this independent contractor
not wearing safety shoes. Discussior.s with the Respondent's
representative indicate that it maintained no direct control
over the daily operations of this contractor or the conduct
of its employees. Therefore, a reduction in negligence points
is warranted, resulting in a reduction of the assessed penalty
of $160.00 to $114.00.
This reduction more accurately reflects the circumstances
surrounding this violation and the application of the six
statutory penalty assessment criteria thereto and should
therefore be approved.

1053

In Secretary of Labor, Mine Safety and Health Administration v.
Republic Steel Corporati~n (79-4-4) dated April 11, 1979, the Federal
Mine Safety and Health Review Connnission held that under the 1969 Act,
the Secretary of Labor could issue citations against the owner of a
coal mine for violations connnitted by independent contractors. Under
the present Act, an operator is specifically defined to include an
independent contractor as well as the operator. ·However, I believe
the fact that the independent contractor now is specifically defined
as an operator does not limit the Secretary's discretion with respect
to whom to cite. Chief Judge Broderick reached the same conclusion in
Secretary of Labor, Mine Safety and Health Administration v. Old Ben
Coal Company (VINC 79-119-P) dated April 27, 1979. Accordingly, the
citation against the operator here is proper. The Commission also held
in Republic that where an enforcement action is undertaken against the
operator, the independent contractor may also be proceeded against in
a separate or consolidated proceeding. I believe the amount of the
penalty sought against the operator properly can take into account the
circumstances of the violation. Chief Judge Broderick also reached
the same conclusion in the Old Ben case cited above. Accordingly, I
accept the Solicitor's representations regarding negligence of the
operator. I would state however, as I have on prior occasions, that
enforcement of the Act would be better served if the Secretary proceeded
against both the operator and the independent contractor.
ORDER
The operator is ORDERED to pay $114 within 30 days from the date
of this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
James H. Swain, Esq., Office of the Regional Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1054

F~DERAL M5NE SA.FE"fY Af~D iHEtU.."Y"[i

BEVB:W COMMftSSSON

OFFICE Of ADMINISTRATIVE LAW. JUDGES
4015 WILSON BOt:LEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. PIKE 78-4·10-P
A.O. No. 15-02117-02036V

v.
Republic Mine
REPUBLIC STEEL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
This proceeding involves seven· charges of violations of mandatory safety and health standards initially assessed by MSHA for
a total of $44,500.
Or<".er No. 6-0263 alleges one violation of 30 CFR 75.200 (failure to follow approved roof-control plan), initially assessed by MSHA
for $10,000. The parties have agreed to a reduction of the penalty to
$3,000.
Order No. 6-0264 alleges one violation of 30 CFR 75.400 (failure to prevent accumulations of coal dust), initially assessed by MSHA
for. $7,500. The parties have agreed to a reduction of the penalty to
$3,000.
The remaining five orders each allege one violation of 30 CFR
75.604 (failure to properly splice electr.ical cables). Each alleged
violation of 30 CFR 75.604 was initially assessed by MSHA for
$5,500.
The parties have agreed to a reduction of the assessed penalties
as follows: For Order No. 6-0265, the assessed penalty is reduced to
$2,600; for Order No. 6-0267, the assessed penalty is reduced to $2,400;
for Order No. 6-0268, the assessed penalty is reduced to $2,500; for
Order No. 6-0269, the assessed penalty is reduced to $2,500; and for
Order No. 6-0270, the assessed penalty is reduced to $2,500.
I find the parties' motion for approval of settlement is consistent with the six statutory criteria set forth in section llO(i) of
the Act and is supported by the record. On the basis thereof, the
motion for approval of settlement is GRANTED.

1055

WHEREFORE IT IS ORDERED that the Respondent shall pay the agreed
civil penalties ($18,500) within 40 days, and upon such payment, the
proceeding is DISMISSED

Distribution:
John H. O'Donnell, Trial Attorney, Division of Mine Safety and
Health, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
B. K. Taoras, Attorney for Republic Steel Corporation, Coal
Mining Division, 604 Fayette Bank Building, Uniontown, PA 15401
(Certified Mail)

1056

FEDERAL MINE SAFETY AND MIEALTH REVIEW COMMISSION
.

'

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSOH BOULEVARD
ARLINGTON, VIRGINIA 22203

AUG

1 7 ~978

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

Civil Penalty Proceeding
Docket No. DENV 79-218-P
A.C. No. 42-00082-03003

v..
Beehive Mine
AMERICAN COAL COMP~Y,
Respondent
DECISION
Appearances:

Thomas E. Korson, Esq., James Abrams, Esq., Office
of the Solicitor, U.S. Department of Labor, for
·Petitioner;
Kent Winterholler, Esq., Patrick Garver, Esq.,
Parsons, Behle and Latimer, for Respondent.

Before:

Administrative Law Judge~fiichels

This matter is before me for decision upon the petition of
the Mine Safety and Health Administration for assessment of civil
penalty filed against the Respondent, American Coal Company, pursuant
to. section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 820(a) (the Act).
A hearing was held in this matter on May 17, 1979, in Price,
Utah. Petitioner and Respondent appeared through counsel. The
parties have filed posthearing briefs and proposed findings
and conclusions. 1/ Such of the proposed findings not adopted
or specifically rejected herein are rejected as innnaterial or
not supported by fact.
1/ Counsel for both parties have npted certain errors in the hearing
transcript and these have been corrected in the following manner:
(a) On line 13 of page 3, the words "to eliminate" have been
stricken and the words "in limine" substituted;
(b) On l.ine 7 of page 16, the word "Respondent" has been stricken
and the words "of Respondent" substituted;
(c) On lines 8 and 9 of page 34, the word "arching" has been
stricken and the word "arcing" substituted;
(d) The same correction as (c) has been made on line 12 of
page 35;
(e) On line 25 of page 77, the words "finger into the box to energize the terminal is there some" have been stricken and the words
"finger into the box to the energized terminal is there some"
substituted;
( f) On line 19 of page 117, the words "at twenty,;,.eight" have been
stricken and the words "Between eight" substituted.

1057

I.

Findings and conclusions in this part are applicable to all the
alleged violations.
\

(a) History of prior violations: The parties stipulated to the
receipt in evidence of a printout showing prior violations (P-1). It
was agreed that only the violations issued prior to the citations
charged in this case would be considered (Tr. 22-23). The beginning
date of the printout is July 27, 1976, and the ending date is July 27,
1978. This document shows a significant prior history of violations and
I so find.
(b) Appropriateness of the penalty to the size of the operator:
It was stipulated that the annual tonnage of the Beehive Mine is
498 ,042 tons. I find it to. be medium to large in size.
(c) Effect on the operator's ability to continue in business: I
find that the fines, if any, assesse~ will not affect the operator's
ability to continue.
(d) Good faith: I find, with no evidence to the c~ntrary, that
the operator achieved rapid compliancerin good faith.
II.

Findings and conclusions as to each of the separate violations
charged are set forth below.
(1)

Citation No. 245458, July 11, 1978

The inspector, Donald B. Hanna, on July 11, 1978, issued a citation to Respondent reading:
The main mine pump starter box, located in the No. 24
crosscut, between the intake and the 1st right entries
was not properly maintained in that about 1-1/2 opening was
present on the side of the 440 volt energized switch box
allowing water to enter the box. Also, about 1 inch opening was present in the submersible pump box located about
20 feet inby the No. 24 crosscut on the intake entry.
This condition was charged to be a violation of 30 CFR
75.512. !:_/ Later, on April 30, 1979, the citation was modified "to

!:_/

This mandatory standard reads in pertinent part:
"All electric equipment shall be frequently examined, tested,
and properly maintained by a qualified person to assure safe. operating
conditions. When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until
such condition is corrected. "

1058

show the c9rr.ect section No. 75 .520 . 11 Petitioner filed no motion to
amend as to this charge and Respondent's motion in limine was granted
so far as it involved the new charge of a violation of 30 CFR 75.520.
The case therefor was tried as one charging only a violation of
30 CFR 75.512 (Tr. 20-21).
The evidence as to the alleged condition is not in serious dispute. The inspector testified he found "knockout" holes in two
electrical boxes, and that in one such box, water was running down
the side and into the disconnect switch (Tr. 32-33; R2, R3). Respondent's witnesses did not disagree with ~he inspector's description.
The abatement consisted of placing folded tape in the hole and
applying a clamp (Tr. 77).
The inspector claimed that the opening.s created a hazard by
causing corrosion which could result in arcing, burning and a possibility of electrical shock (Tr. 34). The Respondent has generally
denied the assertions that its electrical boxes were unsafe. Its
safety director, Dixon Peacock, testified that all electrical parts
are examined weekly and any violations would be recorded and, by inference, corrected (Tr. 76).
The regulation involved in th:i_s charge is general in nature.
It requires in pertinent part that electrical equipment be "properly
maintained by a qualified person to assure safe.operating conditions."
Although the regulation does not specify, the inspector asserts that
proper maintenance includes the closing of holes in weather- or waterresistant boxes.. The holes in this instance were caused by the removal
o~ the knockouts.
Knockouts are indentations in an electrical box
which can be removed or knocked out for the purpose of inserting a
cable or metal conduit (Tr. 43). If a cable is removed or if a hole
once made is not used, an opening will remain in the box.
The question here is whether proper maintenance requires the
closing of such openings in electrical boxes. The only evidence
on the question is the testimony of the inspector and most of this
is focused on the alleged hazard. The inspector asserted, based on
his personal experience as an electrician, a weather-resistant box if
not maintained will allow components to deteriorate causing arcing,
burning and explosions (Tr. 34). He also contended that proper maintenance requires that one maintain an electrical component as good
or better than when it was originally manufactured (Tr. 64). Neither
Mr. Dixon Peacock, safety.director, nor Mr. Stan Jensen, chief electrician for the operator, testified one way or the other whether
proper maintenance requires the closing of open knockout holes in
electrical boxes. Mr. Dixon appeared to admit the existence of
the holes as charged, but asserted in effect that because of their
location they did not cause a hazard. He further testified that he
was not aware of any formal regulations nor had he received any
written direction from MSHA on the proper maintenance of such boxes
(Tr. 77). Mr. Jensen testified that the breaker arm on the

1059

transformer would kick out if there was a short in the box (Tr. 85).
He also testified that MSHA did not tell him the practice of leaving
holes in boxes was either acceptable or unacceptable (Tr. 86-87).
The record contains no testimony or other evidence about the
general practice in the trade with respect to closing the openings in
electrical boxes. No witness other than the inspector expressed a
view on that subject. Because there is no evidence other than the
inspector's testimony, I accept his statement that proper maintenance
requires the closing of a hole in an electrical box. As indicated
above, the evidence on this citation generally concerns whether the
condition was a hazard or not. That evidence relates to the gravity
of a violation, if one is found, but it has no particular bearing on
the fact of the violation.
I find therefore that the failure to close the openings in the
electrical boxes was a violation by the operator of 30 CFR 75.512.
Findings on the specific criter~a of gravity and negligence
follow:
Gravity: The inspector did not look into the boxes. He speculated that arcing, fire and shock hazgrds were possible, but he did
not know about the conditions inside the box. Mr. Peacock, on the
other hand, testified that weekly examinations ~ere-made and in effect
that any potential hazard would be found. Mr. Peacock had opened and
examined the box and had determined that contact with wires through
the holes would have been very difficult. It appears that the potential hazard in the particular circumstances was relatively remote
especially since the transformer would kick out and deenergize the box
instantaneously in the case of any short (Tr. 85). In the circumstances, I find that the violation was of moderate seriousness.
Negligence: The inspector testified that he had informed the
operator's safety director on prior occasions to close these openings
(Tr. 45, 55). He admitted, however, that this was probably a subject
raised only"generally in talking about boxes and maintenance problems.
Mr. Peacock could not remember whether he had received any such warning. There is no clear evidence that electricians would routinely
close such holes as a matter of normal maintenance. Under the circumstances, I find a small degree of ordinary negligence.
Assessment: Based on all the evidence, I find that the proper
penalty should be $25 for each improperly maintained electrical box
or $50 total for this violation.
(2)

Citation No. 246521, July 11, 1978

This citation reads: "Air currents used to ventilate the air
compressor installed at 29 crosscut between 1st right and return

1060

entries were ··not coursed directly into the return." A violation
of 30 CFR 75.1103 was charged. Prior to the hearing, on May 1, 1979,
Petitioner moved to amend the petition to charge a violation of section 75 .1105. This motion was granted by order of the court of May 11,
1979, subject, however, to reconsideration at the hearing upon a
proper showing by the Respondent. In the meantime, Respondent filed a
motion in limine requesting the Judge to enter an order prohibiting
Petitioner from introducing any evidence that seeks to establish a violation of any standard other than that cited in Citation No. 246521,
that is, 30 CFR 75.1103 and to specifically prohibit evidence of an
alleged violation of 30 CFR 75.1105.
At the hearing, arguments were made on the motion in limine· and
this motion was denied on the record ·(Tr, 9.5-96) . Evidence was
received on behalf of the Petitioner on the merits of the charge.
Respondent presented.no evidence at the hearing. The Respondent
requested at the hearing that the Judge reconsider the issue of the
amendment of the pleading and has filed a posthearing brief addressed
to the subject.
In this brief, Respondent argues first that the Interim Rules do
not allow the Judg~ to amend the citation inunediately prior to the
hearing. Although the rules do not specifically provide for the amendment of citations, it is clear that this authority is inferred in several of the specific powers granted to the Judge.
Secondly, Respondent argues that the amendment should not be
allowed because it deprives it of proper notice of the violation
charged. Respondent was advised of the intended change· in the mandatory standard to be charged by Petitioner's response to a prehearing
order filed May 1, 1979, approximately -2 weeks before the hearing.
After allowing time for an answer, the motion was granted on May 11,
1979. Respondent thus had considerable- advance notice that the hearing would proceed on the basis of a charge of 30 CFR 75.1105 rather
than 30 CFR 75.1103.
Respondent has made no argument either at the hearing or in its
posthearing brief that an alleged lack of notice deprived it of the
opportunity to properly prepare for the hearing. There is no suggestion that it was unable to obtain witnesses or other evidence to
defend itself against the charge of 30 CFR 75.1105. -The original citation, apparently as an inadvertent error, listed 75.1103, whereas it
is clear that the condition as narrated in the citation has nothing to
do with that particular regulation. It is equally evident that the
proper citation based on the narrated condition is 75.1105.
The case law does not support Respondent's contention that it
failed to receive proper notice in the circumstances of this case.
In one of its early decisions, the Board of Mine Operations Appeals
held that it found no violation of due process where conditions or

1061

practices described in the order of withdrawal do not specify a particular section of the act or mandatory standard violated. Eastern
Associated Coal Corporation, 1 IBMA 233, 235 (1972). See also, Old
Ben Coal Company 4 IBMA, 198, 206-210 (1975). In National~lty-arld
Construction Co. Inc. v. OSHRC, 489 F~2d 1257, 1264 (D.C. Cir. 1973),
the court held "So long as fair notice is afforded, an issue litigated
at an administrative hearing may be decided by the hearing agency even
though the formal pleadings did not squarely raise the issue. This
follows from the familiar rule that administrative pleadings are very
liberally construed and very easily amended. 11 (Footnotes omitted.) In
L. G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971), the court held
"[t]he complaint is adequate if the one proceeded against be reasonably
appraised of the issues in controversy, and any such notice is adequate in the absence of a showing that a party was misled." In that
case, the court held there was no claim that th~ petitioners wer~
misled by the complaint nor evidence that_ th.ey could have been
so misled.
In summary, by apparent inadvertence, the Respondent was not
immediately advised when receiving the citation of the correct
number of the mandatory standard it W?S charged with violating,
although the condition alleged is fully described in the narrative.
portion of the citation. The correct number was supplied several
weeks before the trial and in time sufficient for the Respondent
to prepare its defe.nse. No representations have been made that
such length of time was inadequate or that the R~spondent was ever
misled or deceived as to the exact nature or the charge. The charge,
it is noted, was sufficiently clear t& permit an abatement of the
condition. Nor has Respondent made any showing of prejudi~e.
In the circumstances upon reconsideration, I affirm.my decision
- to permit amendment of the citation.
The evidence.presented on this citation, as· previously noted,
consists entirely of the testimony of the inspector, Donald B.. Hanna.
He testified that there was a violation because the air current
in the mine intake air courses is directed to the working SP.ctions
inside the mine, that it was passing over the energized cpmpressor and not into the return and finally that this intake air is the
main escapeway for the mine (Tr. 97). No evidence was submitted by
the Respondent. Since this condition is prohibited by the regulation
cited, it is found that Respondent was in violation of 30 CFR 75.1105.
The violation was serious because in case of a fire, the smoke
gases, carbon monoxide, carbon dioxide and so on, passing over the
energized compressor station could pass down the main escapeway into
the intake air course and affect the workmen in the mine (Tr. 97).
This was ordinary negligence because it should have been known to
the operator that only one opening had been provided above this stopping where the compressor was permanently installed (Tr. 97).

1062

Considering all the statutory criteria, I her~by assess the
operator a· penalty of $150 for this violation.
(3) Citation No. 246523, July 12, 1978
In this citation, the inspector charged a violation of mandatory
standard 30 CFR 75 .326(a) for the following condition: "The air currents in the operating belt entry, 9th east working section, were used
to ventilate the active working places."
The Beehive Mine having been opened in 1950, the portion of
30 CFR 75.326 relevant to the condition is as follows:
Whenever an authorized representative of the Secretary
finds, in the case of any kind of· coal mine opened on or
prior to March 30, 1970, which ha.s been developed with more
than two entries, that the conditions in the entries, other
than the belt haulage entries, are such as to permit adequateiy the coursing of intake or return air through such
entries, (a) the belt haulage entries shall not be used to
ventilate, unless such entries are necessary to ventilate,
active working places * * *
The Respondent argues (1) that th~ citation issued is fatally
incomplete and therefore must be vacated, (2) that the standard
allegedly violated is not applicable to the Beehive.Mine, and
(3) assuming, arguendo, the applicability of 30 CFR 75.326, no violation has been proven. The first argument is rejected.
Respondent's second argument specifically is that a finding by
the Secretary must be made relative to the coursing of the air and
the lack of a need for air off the belt haulage entry and presented
in writing to the operator before a citation may issue under the
the second sentence in 75.326. Other administrative law judges have
held to the affect that a finding by an inspector as to the adequacy
of entries is a prerequisite for the issuance of a citation for an
alleged violation. Knisley Coal Company, Docket Nos. PITT 76-66-P,
etc. (October 22, 1974), by Judge Moore and Rushton Mining Company,
Docket Nos. PITT 73-271-P, etc. (January 31, 1975), by Judge Cook.
It is unnecessary to decide this issue in this case because of my
finding below that no showing has been made sufficient to establish
the existence of the alleged condition.
As noted above, Respondent argues that, assuming, arguendo, the
applicability of 30 CFR 75.326, no violation has been proven. It
contends first that there has been no showing of the use of air off
the belt haulageway and that even if there was some movement of air
off the belt it would exit through doors prior to reaching the
working face.

1063

MSHA's evidence on this point consists solely of the testimony
of the inspector and his written statement which is identified as P-4.
This evidence is insufficient in my view to establish that air was
moving off the belt haulageway, at least in any quantity .which would
be deemed significant. The inspector could not get a valid reading of
the movement of the air on his anemometer (Tr. 99-100). While he made
a smoke tube test after the check curtain was installed, he conceded
that there was no way that one could get an accurate measurement of
how much air was being allowed into the section (Tr. 101). When the
inspector was asked if he could feel the air moving at any time while
investigating the condition he answered:
Just by sense. The dust in ~he air and by, it was
so slight it would be hard to say by your actual feeling.
~ou would probably imagine it bec.ause of the. way the dust
was traveling. It is possible if we detect the movement
of the air all the time if there is high enough velocity
you can certainly detect it (Tr. 101).
In my view, this is insufficient evidence to prove that the belt
haulage entry was being used to ventilate. Even if the showing were
sufficient to establish a slight movement of air, there is no further
proof that it in fact reached the worKing face. Other evidence suggests that any small amount of air from the belt haulage entry, and it
appears there will be always some, would be sucked into the return
before reaching the working face (Tr. 116-117, 122, 128). Furthermore, the evidence establishes that the working section was adequately
ventilated with 34,000 cubic feet per minute.
This case is similar to that decided by Administrative Law Judge
Sweeney in D.R. Campbell & Son, Inc., BARB 72-156-P (November 27,
1973), in which he also held that the evidence was not enough to
to prove a "use" of belt entry air within the context of section
75.326.
Accordingly, Citation No. 246523 is vacated and the petition
dismissed as to this charge for failure of proof.
(4) ·Citation No. 246524, July 12, 1978
In this citation, the inspector charged a violation of mandatory
standard 30 CFR 75.1704 and he described the condition or practice as
follows: "Only one escapeway, (return air course) was properly marked
from the 9th east working section out to the main drift, a distance
of about 1,000 feet."
Standard 75.1704 provides for appropriate escapeways and that
these "shall be maintained in safe condition and properly marked."

1064

Respondent argues as to this citation that insufficient notice
of the violation has been given to the company as to the degree and
character of the marking required and by the lack of specificity in
the citation. Specifically, it contends that the standard is void for
vagueness and that the notice and the citation are fatally incomplete.
Respondent also takes the position that the evidence shows the intake
escapeway in the 9th East section was properly marked.
I reject the contention that insufficient notice has been given to
the operator. Respondent's argument on vaguene~s is that there are no
standards as to what constitutes proper·marking and that because of the
allegedly vague nature of the requirement:, MSHA should have promulgated
regulations or other written directions. I do not believe that the
regulation is of such a nature that it would necessarily require additional guidelines. The escapeways clearly have to be marked. The only
issue that might arise is whether a particular marking is proper. In
some instances that may present a difficult question but, in this
instance, the inspector testified that there were no markings whatsoever.
Respondent's .second argument as to sufficiency of notice is that
the citation was fatally incomplete because it allegedly does not
describe at all the condition in question or even the escapeway in
question. It is true that the citation on its face does not exactly
describe the condition or the place but, in light of the abatement and
also the testimony received at the hearing, it is apparent that the
Respondent knew exactly the condition or practice with which it was
charged.
On the issue of whether the intake escapeway in the 9th East
section was in fact marked, there is contradictory evidence. The
inspector accepted, for the purposes of abatement, the placement of
reflector tape along the escapeway and so at least for the purposes
of this proceeding such a marking will be considered a proper making.
The evidence received on the question of the presence of markings
consists mainly of the testimony of the inspector, Mr. Hanna, and
Resp0ndent's witnesses, Dixon Peacock, safety director for American
Coal and Stan Jensen, maintenance superintendent for the company. The
inspector testified that the intake escapeway in the ·9th East section
was not properly marked because there was no indication that it was an
escapew2y and it was not marked as an escapeway (Tr. 136-137).
Mr. Peacock testified that there is a sign at the junction of the
9th East section which is a reflective and states, "intake escapeway,
this way out." He also claimed that the escapeway was marked because,
inby to the section, every permanent stopping is identified by large
numbers (Tr. 149). Mr. Peacock finally asserted that there was reflective tape and an identifying tag starting at the junction and proceeding inby to the section (Tr. 150). These were located, it was claimed,
at stations where rock dust samples were taken (Tr. 158).

1065

The inspector, in rebuttal, claimed that he had not taken rock
dust samples in the 9th East section, but rather, had taken them in
the 8th West section (Tr. 172). He testified that he observed no
reflector tape of any kind on the 9th East section (Tr. 173). He also
asserted that he was not aware of an escapeway sign at the junction
and that he saw it for the first time the next day after the citation
when Mr. Peacock pointed it out to him. He testified that it was
pointing up into the section instead of out (Tr. 173-174).
It is no~ ciear that the sign is particularly relevant to the
charge contained in the citation. The inspector appeared to be concerned with the lack of markings along the esca.peway and marking.s such
as a reflector tape would have been sa~isfactory to him. He accepted
the placement of reflector tape as ari abatement measure and no mention
was made of a sign at the junction at the time of abatement. The
inspector did not testify whether the reflective tape placed at the
rock dust stations would be sufficient markings. He testified only to
the effect that there were no reflective tape markings. Finally,
Mr. Peacock in further testimony referred to his notes which he
asserted indicated the location of dust samples and that these show
dust samples taken specifically in the 9th East section.
The testimony of the inspector ana Mr. Peacock is virtually
irreconciliable on the question that whether or not·the dust sample
reflector tapes were present. Mr. Hanna testified that he did not
observe any tapes, but it may be that he was not particularly looking
for such dust sampling tapes and thus may have failed to notice them.
On the other hand, Mr. Peacock appeared to have contemporary information in the form of his own notes that samples were taken specifically
in the intake entry in the 9th East section which would mean tapes
were present. With the issue as close as this and in the circumstances mentioned, I will accept Mr. Peacock's testimony. This is not
intended to reflect in any way upon the veracity of Mr. Hanna.
Accordingly, I find that the charge of a violation of 30 CFR
75.1704 has not been proved. Citation No. 246524 is vacated and the
petition dismissed as to this charge.
ORDER
It is ORDERED that Respondent, American Coal Company, pay the penalties assessed herein in the sum of $200 within 30 days of the date
of service upon it of this decision.

or~~~~
Franklin P. Michels
Administrative Law Judge

1066

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSUON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON. BOULEVARD
ARLINGTON.VIRGINIA 22203

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

Civil Penalty Proceedings
Docket No. HOPE 78-644-P
A/O No. 46-05186-02009 V

v.
Docket No. HOPE 78-645-P
A/O No. 46-05186-02010 V

SWOPE COAL COMPANY,
Respondent

Docket No. HOPE 78-646-P
A/O No. 46-05186-02011 V
Docket No. HOPE 78-664-P
A/O No. 46-05186-02012 S
No. 1 Mine
DECISION
Appearances:

David Barbour, Esq., Office of the Solicitor, MSHA,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Charles Tutwiler, Esq., Welch, West Virginia, for
Respondent.

Before:

Forrest E. Stewart, Administrative Law Judge
FACTUAL AND PROCEDURAL BACKGROUND

The above-captioned cases are civil penalty proceedings brought
pursuant to section 109 of the Federal Coal Mine Health and Safety
Act of 1969 (hereinafter, the Act), 30 u.s.c. § 819 (1970).
On July'28, 1978, MSHA filed three petitions to assess civil penalties for violations of mandatory safety standards. The fourth petition herein was filed on July 31, 1978. A total of seven violations
of mandatory standards was alleged. Respondent filed answers to all
four petitions on January 2, 1979.
The hearing in these matters was held on March 7, 1979, ln
Charleston, West Virginia. The Petitioner called five witnesses and

1067

introduced 21 exhibits. The Respondent called one witness and introduced four exhibits. A posthearing brief was submitted by Petitionei;
on May 25, 1979. Respondent submitted its brief on June 20, 1979.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
LIABILITY OF SWOPE COAL COMPANY
The primary issues are whether Respondent violated the mandatory
safety standards alleged and the penalty that should be assessed for
violations under the criteria set forth in section·109(a)(l) of the
Act. ]:_/ In addition, Respondent asserts that:
[I]t is not liable for the alleged violations in that
it was not the "operator" of the No. 1 Mine at the time the
assessments were made or at any other time, and has never
been such operator, and as such does not come within the
statutory definition of an operator as set out in Chapter
22, Title 30, § 802(d), which is as follows:
'Operator' means any owner, lessee, or other person
who operates, controls or supervises a coal mine;
By a lease dated May 1, 1952, Bankers Pocahontas Coal Company,.
leased 300 acres of coal land, more or less, tow. B. Swope.
w. B. Swope, in turn, on June 1, 1976, by written lease, subleased
a portion thereof, being the No. 1 Mine, to Day Camp Coal Company.
Petitioner argues that Swope Coal Company was the operator because
it continued to exercise control over the mine and was named as the
operator in the legal identity report for the No. 1 Mine signed by
w. B. Swope after the sublease to Day Camp Coal Company.
It is undisputed that after the clearing away and removal of
coal and topsoil in May 1976, the miners at the No. 1 Mine were not
1/

Section 109(a)(l) of the Act provides:
"The operator of a coal mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision
of this Act, except the provisions of title 4, shall be assessed a
civil penalty by the Secretary under paragraph (3) of this subsection
which penalty shall not be more than $10,000 for each such violation.
Each occurrence of a violation of a mandatory health or safety standard may constitute a separate offense. In determining the amount
of the penalty, the Secretary shall consider the operator's history
of previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of
the operator charged in attempting to achieve rapid compliance after
notification of a violation."

1068

in the employ of Swope Coal Company. 2/ Nevertheless, the record
establishes that Swope Coal Company remained active in some aspects
of the mining operation, including assistance to Day Camp Coal Company
in the marketing of coal and procuretknt of equipment.
Prior to the date of the lease, Respondent had obtained a permit
from the State of West Virginia to face\ up and remove coal from in
front of the highwall. This permit, West Virginia Permit No. D9553,
was issued in November or December 1975,\in the name of Swope Coal
Company, No. 1 Mine. In January 1976,
B. Swope~ Inc., received a
charter from the State of West Virginia an<:l on May 16, 1976, Respondent applied to MESA for a mine identificatipn number which was
received .on June 15, 1976, being No. 46-05186.

w.

Section 107(d) of the Act requires that \~ach operator of a coal
mine shall file with the Secretary the identi~y of the person who
controls or operates the mine. 3/ Any revisio~s in such.name or
addresses are required to be promptly filed with the Secretary.
2/ Respondent has used different names. Counsel for Respondent
stated that "there is no such entity as Swope Coal Company." W. B.
Swope, Inc., was chartered by the State of West Virginia; in January
1976. However, the State mining permit and the MSHA identificatio~
number were issued in the Swope Company name and remained in that
name at all times pertinent to these proceedings. Inspector James
Bowman testified that "Swope Coal Company" was the only name he had
ever heard used in reference to the mine. When inspector Herbert M.
McKinney was at the mine in May 1977, he observed a sign on the main
office building which read "Swope Coal Company No. 1 Mine Office."
Although the charter name of the corporation was w. B. Swope, Inc.,
the corporation was known by and did business under the name of Swope
Coal Company.
3/
30 CFR 82.11 states in pertinent part:
':(a) Not later than 30 days after the effective date of this part,
the operator of a coal mine shall, in writing, notify the Coal Mine
Health and Safety District Manager*** of the'legal identity of the
operator * * *·"
30 CFR 82.12 states in pertinent part:
"Within 30 days after the occurrence of any change in the information required by section 82 .11, the operator of a coal mine shall, in
writing, notify * * * the District Manager * * * of such change."
30 CFR 82.13 sets forth the results of a failure to notify the
District Manager:
"Failure of the operator to notify the Bureau of Mines [subsequents, MSHA] in writing of the legal identity of the operator or any
changes thereof within the time required under the Act will be considered to be a violation of section 107(d) of the Act and shall be
subject to penalties as provided in section 109 of the Act."

1069

On June 14, 1976, Swope Coal Company, through its president,

w. B. Swope, filed a legal identity report with MESA. 4/ This
report, which was signed by w. B. Swope, named Swope Coal Company
as the operator of the No. 1 Mine. It named W. B. Swope as president
of Swope Coal Company and as agent for service of process. Significantly, it was filed with MESA 2 weeks after the effective date of
the contract between Day Camp Coal Company and Swope Coal Company.
This report remained in effect and unchanged through December 5, 1977.
Each of the inspectors relied upon it when citing Swope Coal Company
as operator.
Mr. Swope testified that he sent a letter to Mr. Krese, MESA's
district manager, on July 15, 1976. The body of this letter reads
as follows: "I wish to advise you that W. B. Swope Coal Co. has
leased the Swope #1 Mine situated, Little Day Camp near Premier, to
Day Camp Coal Company and they have been advised to contact your
office for transfer of the ID number."
Mr. Swope received no answer to this letter and there is no indication that it was received by MESA. Moreover, the letter fails to
indicate whether Respondent retained partial or total control over .the
mine and, consequently, whether it remained as an operator.
30 CFR 82.20 specifies how legal identity and changes thereof
are to be filed: "Each operator of a coal mine shall file notification of the legal identity and every change thereof with the appropriate * * * District Manager by properly completing, mailing or otherwise delivering Form 6-357 'Legal Identity Report.'"
In the preamble to the regulations concerning legal identity
reports published in the Federal Register, the Assistant Secretary
of the Interior noted that the information required under Part 82
was "to be used daily by the enforcement personnel" and that the
iaformation required would "enable the Secretary to properly carry
out his enforcement functions in the administration of the Act." F .R.
Vol. 37, No. 238, December 9, 1972, pp. 26308-26309. The regulations
became effective March 15, 1973, and were in force at the time the
alleged violations occurred. Swope gave MSHA every outward indication it was the operator by filing a legal identity report as required
under 30 CFR 82.11 after the Day Camp lease went into effect. If
Respondent later had second thoughts and believed that Day Camp was
the operator, it failed to follow the procedure set forth in section 82.20 for advising MSHA of the change. Its letter to District·
Manager Krese of July 16, 1976, did not meet the requirements of
4/ The functions of the Mining Enforcement and Safety Administration
(MESA) have been transferred to the Mine Safety and Health Administration (MSHA) pursuant to the provisions of the Act and these names were
used interchangeably in the record.

1070

Section 82.20. Any letter stating that a lease has. been entered into
does not properly advise MSHA of anything substantive concern,ing the
identity of an operator of a mine since it is possible for total or
partial control of the mine to remain with the lessor and consequently
for the lessor to remain the operator. Thus, Swope itself indicated
to MSHA that it was the operator and continued to be so up to and
through the period of the alleged violations.
The first change in the legal identity report was effected after
the occurrence of the four violations at issue herein. On December 5,
1977, a revised report signed by "Lonnie Wood * * * Mine Foreman" was
filed in MSHA's Pineville, West Virginia, office. Swope Coal Company
was listed as operator, and w. B. Swope with the title of president,
remained as agent for service of process. The only change from the
earlier report was the listing of three different corporate officers.
The identity report was revised again on November 29, 1978.
Swope Coal Company was again listed as operator. The repc>rt, signed
by "Sammy R. Bell * * * Gen. Manager" listed a different agent for
service of process and three new corporate officers.
Two letters which were introduced at the hearing provided additional evidence that the mine was operated under the name "Swope Coal
Company." These letters dated June 7, 1979, were addressed to Mr. Krese
under a Swope Coal Company letterhead. As noted above, the effective
date of the lease between Swope Coal Company and Day Camp was June 1,
1976. The first letter was filed with MESA purportedly in compliance
with sectfon 107(d) of the Act. The letter was signed by Harold Burks
as superintendent of the No. 1 Mine for Swope Coal Company. In the
body of the letter, he referred to himself and to Henry Honosky "as
the operating officials of Mine No. 1, Swope Coal Company." The
second letter was written under a Swope Coal Company letterhead and
was signed by w. B. Swope as operator of the Swope Coal Company No. 1
Mine. In the-body of the letter, he referred to Mr. Henry Honosky as
a "Partner."
1

Swope Coal Company represented itself as the operator of the
No. 1 Mine to MESA and mining operations were carried out under the
Swope Coal Company name. MSHA, for its part, relied upon these representations. Given this reliance, Respondent should not be allowed
now to deny its status as an operator of the No. 1 Mine in the absence
of clear evidence to the contrary.
In addition to holding itself out as operator, Swope Coal Company
exercised enough control over the No. 1 Mine to be characterized as an
"operator" within the meaning of the Act. The term "operator" is
defined in section 3(d) of the Act to mean "any owner, lessee, or
other person who operates, controls, or supervises a coal or other
mine * * *·" The concept of "control" must be construed broadly in
order to best effectuate the purposes of the Act. A person may be

1071

considered an operator even though it does not supervise miners or
direct the day-to-day operations of a coal mine.
Swope Coal Company, through its agent and president,·W. B. Swope,
entered into a contract with Day Camp Coal Company. In return for the
payment of royalties, 5/ Day Camp was granted mining rights to the No. 1
Mine. Under the terms-of the contract, Respondent retained substantial
control over the No. 1 Mine.
Respondent retained the rights to enter the mine at all times to
inspect any part thereof to ascertain the condition of the mine, the
methods practiced, the amount of coal removed, or for any other lawful
purpose. Day Camp was required by the terms of the contract to employ
only the best and most improved methods of mining so as to maximize
the amount of coal recovered. Day Camp could not remove pillars without Respondent's consent. Respondent's consent was also required
before Day Camp could assign or sublet its interest in the mine.
Finally, Respondent had the right to cancel the contract immediately
if Day Camp violated any of the contract's clauses.
Swope's relationship with Day Camp Coal Company was not limited
to that of lessor-lessee. Mr. Swope testified that he helped Day Camp
Coal Company to market the coal it mined. He was also instrumental in
providing some of the mining equipment used by Day Camp. Mr. Swope
purchased the equipment and then immediately sold it to Day Camp. Day
Camp purchased the equipment from Swope with money borrowed from a
local bank. Mr. Swope endorsed the note in order to induce the bank
to make the loan to Day Camp. After Day Camp folded, 6/ the machinery
was repurchased by the bank at public auction. Mr. Swope then purchased the equipment from the bank.
Throughout this entire period of time, the State identification
number, as well as the "Certificate for Approval of Mine Openings (for
use of underground mines)," remained in the Swope Coal Company name.
Day Camp Coal Company did not have a State operating certificate in
its own name. Swope Coal Company was also responsible for State bonding and land restoration requirements.
Inspector Bowman testified that he observed Mr~ Swope at the mine
on two separate occasions--October 6 and 27, 1977. Mr. Swope testified that he went to the mine on October 27 because he was asked to
help resolve the problems which had caused the mine to shut down. His
presense at the mine on these occasions and his expressed purpose in
5/

Under the terms of the lease, Swope received a royalty of

To percent of the gross sales price of the coal produced from the
mine.

2_/ After Day Camp Coal Company became defunct, Respondent leased the
mine property to Abco Mining Development Company.

1072

being there further supports the contention that Swope Coal Company
exercised control over the No. 1 Mine.
Day Camp as lessee, and its miners, as employees, were at the
No. 1 Mine to perform work which promoted the direct financial interests of Swope. Swope should not be allowed through its sublease
arrangement to relieve itseslf from all responsibility for the miners
who labored, in part, on its behalf. Such a release from responsibility would not promote health and safety of those miners or of
others who now find themselves in a similar situation. 7/ Swope's
apparent argument that actual supervision of miners or day-to-day
direction of operations is a prerequisite to being an "operator"
under the Coal Act is undermined by the recent case of Republic
Steel Corporation, No. 79-4-4 (April 11, 1979), where the Commission found that a mine owner can be held responsible for violations
of the 1969 Act created by its independent contractors even though
none of the owner's employees were exposed to the violative conditions and it could not have .prevented the conditions.
In addition to the legal issues, there are practical reasons why
Responde:•t should be responsible for the safety of the miners in the
No. 1 Mine. Republic also said that "A mine owner cannot be allowed
to exonerate itself from its statutory responsibility for the safety
and health of miners merely by establishing a private contractual
relationship in which miners are not its employees and the ability to
control the safety of its workplace is restricted." While there is no
direct evidence to indicate that in this case the lease and the use
of different names was for the purpose of escaping responsibility, the
possibility exists. There is even a greater possibility of the use of
such a private contractual relationship to escape responsibility in
cases such as this where the lessee merely hires miners and mines coal
than in cases such as ~epublic where the independent contractor is
hired to sink shafts, erect tipples, and perform tasks beyond the
capabilities of the operator.
Swope Coal Company was the legal, as well as generally recognized
operator, of the No. 1 Mine. The Respondent held itself out as the
operator of the No. 1 Mine, did business as Swope Coal Company, and
exercised sufficient control to be considered an operator. As such,
Swope Coal Company may be assessed civil penalties under section 109
of the Act.

!_/

MSHA argued that the concept of control need not require a finding
of a singly responsible party, but that the exercise of any measure of
control may make a party liable as.an operator regardless of actual
direction of day-to-day operations at the mine. Thus, in this
instance, it was argued that Swope and Day Camp share joint and
several liability and that, Day Camp being defunct, it was perfectly
proper for MSHA to proceed solely against Swope.

1073

VIOLATIONS AND STATUTORY CRITERIA
Each of the alleged violations contained herein occurred at the
Swope Coal Company No. 1 Mine, located in Premier, West Virginia.
At the time the alleged violations occurred, approximately 10 miners
were employed at the. No. 1 Mine and it produced coal at the rate of
100 tons per day. The parties stipulated that each of the violations
herein was abated in good faith and that there was no applicable history of prior paid violations. The record contains no indication
that the assessment of civil penalties in these proceedings will
adversely affect the ability of the Respondent to cemain in business.
Day Camp Coal Company failed to exercise reasonable care to prevent or to correct the conditions or practices which caused each of
the violations herein, and they were known or should have been known
to exist. Although Swope Coal Company exercised sufficient control to
bring it within the definition of "operator" under the Act, the
record does not establish that it was concerned with the day-to-day
mining operations to the extent that the negligence of Day Camp Coal
company or its personnel was imputed to Respondent.
Docket No. HOPE 78-644-P
Two separate violations of mandatory safety standards were
alleged in Docket No. HOPE i8-644-P. They were observed by Federal
coal mine inspector James Bowman in the course of a regular inspection of Respondent's No. 1 Mine on October 6, 1977. In both
instances, the inspector issued a 104(c)(l) order of withdrawal.
Inspector Bowman issued Order No. 1 JFB after he observed three
concurrent conditions or practices which he believed to be in violation of 30 CFR 75.200. First, the approved roof control plan was
not being followed in the main 001 section in that miners had proc~eded inby permanent roof supports.
The .roof bolting machine had
been placed up against the face, 10 feet beyond support. There were
no jacks on the roof bolting machine and no temporary supports had
been set in the area.
Section 75.200 requires in pertinent part that "no person shall
proceed beyond the last permanent support unless adequate temporary
support is provided or unless such temporary support is not required
under the approved roof control plan and the absence of such support
will not pose a hazard to the miners." The roof control plan in
effect that the No. 1 Mine permitted only those persons engaged in
installing temporary supports to proceed beyond the last permanent
roof support until such temporary supports were installed. In this
instance, miners had been proceeding beyond permanent supports to make
chalk marks on the roof for placement of roof bolts. This practice
presented a clear violation of section 75.200.

1074

The inspector also observed that cleanup had occurred under
unsupported roof in the face area of the No. 4 entry and in the last
open crosscut. The roof control plan requires that roof be supported
during or immediately upon completion of the loading cycle. The
cleanup under unsupported roof was in violation of section 75.200.
Finally, the inspector observed that mining continued in the
No. 4 entry within 100 feet of an outcrop without the additional support called for in the roof contro 1 plan. An "outcrop" is that area
where a seam of coal comes out to the surface. The roof control.
plan required that roof bolts shall not be used as. the sole means of
roof support when underground workings approach and when mining is
being done within 150 feet of an outcropping. Supplemental supports
were to c.onsist of at least one row of posts limiting the roadway
width to 16 feet. The failure to provide additional supports in this
area as required by the roof control plan was a violation of section
75.200.
The section foreman was on the section constantly throughout the
shift and should have known that miners were proceeding beyond permanent sup~X>rts for other than proper purposes. The failure to install
temporary supports at the conclusion of the mining cycle and to provide additional supports in the area near the outcrop were visually
obvious. The inspector was told by Bill Burks, mine superintendent,
that they did not have sufficient supplies on hand at the mine to
permit either the temporary or permanent posting as required.
These conditions could have resulted in a fatality. It was probable that an accident would have occurred because of the conditions.
The first condition threatened those miners inby the permanent supports. The latter two conditions endangered eight men, the entire
crew on the section.
Inspector Bowman issued Ord~r of Withdrawal No. 2 JFB after
observing accumulations of coal in violation of 30 CFR 75.400. He
observed these accumulations extending a distance of approximately
250 feet in four entries and part of the last open crosscut. Along
the ribs, the coal ranged in depth from 6 to 20 inches. In the roadways the coal had accumulated from 1/4 to 4 inches. The coal was
comprised mostly of coal dust. It was wet in the middle of the roadways, dry inby the last open crosscut and extremely dry along the
ribs. The inspector approximated the extent of the accumulations
using the mine map. He measured depth with a ruler.
The inspector believed that the area had never been cleaned after
mining. The accumulations were too extensive to be the result of
normal spillage during mining. No effort was made to clean up the
coal when it was discovered by the inspector or while he was there.
He estimated that the accumulations had been present for more than a
month. The condition was visually obvious and existed for an extended
period of time, yet management failed to take corrective action.

1075

This was a serious violation. It was probable that art accident
would occur because of the accumulations. There were ignition sources
in the area of the accumulations. An energized cable with six poorlymade temporary splices was lying in loose coal in the outby areas.
Battery-operated equipment presented additional ignition sources. The
violation endangered all these working in the mine and particularly
those working in the face areas. If a fire or explosion w~·re to
occur, the probable reselt would have been serious injury or a
fatality.
Docket No. HOPE 78-645-P
Two separate violations of mandatory safety standards were alleged
in Docke·t No. HOPE 78-645-P.
The first of these was observed by
Federal coal mine inspector Leighton Farley on May 24, 1977, in the
course of an accident investigation. The inspector issued 104(c)(l)
Notice of Violation No. 1 LCF, citing 30 CFR 75.1704. MSHA had
received a complaint on May 23, 1977, which alleged that five men had
been trapped in the mine because au escapeway was blocked.
The inspector's examination of the escapeway involved revealed
that timbers had been broken, the top had deteriorated, and part of
the roof had fallen. Mining had continued for one and a half shifts
without two separate escapeways. The inspector discussed the condition with a mine foreman, Lacey Justice, who stated that he had discovered the rock fall during a preshift examination on May 17 or 18.
He and Bill Burks, the manager of the mine, decided to continue mining in the area for 2 days and only thereafter to move the section
back 200 feet where they could maintain two separate escapeways.
This failure to maintain a second escapeway was in violation of
section 75.1704 which requires that two separate and distinct
travelable passageways be maintained in a safe condition to ensure
passage at all times of any persons. The decision to operate without
two separate escapeway~ was a conscious one on the part of mine
management.
Because the second escapeway was blocked, five men were forced
to use their self-rescuing devices and travel through smoke to reach
the face. It is probable that the lack of a second escapeway could
result in serious injury or a fatality.
The second alleged violation included under this docket number
was observed by Inspector Bowman in the course of the regular inspection conducted on October 6, 1977. The inspector found six poorlymade temporary splices in a trailing cable which was conducting electricity to a loading machine operating in the main 001 section. He
issued 104(c)(l) Notice of Violation No. 9 JFB, citing 30 CFR 75.603~
This section reads in pertinent part as follows:
One temporary splice may be made in any trailing cable.
Such temporary splice may be used only for the next 24-hour

1076

period * * *· Temporary splices in trailing cables shall be
made in a workman-like manner and shall be mechanically
strong and well insulated. Trailing cables or hand cables
which have exposed wires or which have splices that heat or
spark under load shall not be used.
It is clear that the condition in question was in violatton of
section 75.603. There were a total of six temporary splices in the
cable. In addition, the outer jacket of some splices were worn and
unraveled to the extent that bare wires were exposed. Some splices
were also wet and filled with mud. The wires were· joined with square
knots. The condition and wear on ~he splices indicated that they had
existed for at least several days.
The number of splices and the unworkmanlike manner in which they
were made were visually obvious. The condition existed for at least
several days. The section foreman and Curtis Kirk, the chief -~lectri
cian, were in the section throughout their shift. Mr. Kirk had
replaced a permanent splice on the cable on the day before the inspector arrived.
This was a hazardous condition.
is probable that the condition would cause an accident to occur. 1·/hen the inspector first found
the cable, it was energized. There was no short-circuit protection
and the cable wires were exposed. The inspector testified that he
knew of instances in which this type of cable burned from end to end.
Because the cable was lying in dry coal dust in places and was an
ignitions ource, it presented a fire or explosion hazard. The cable
also presented a shock hazard because in some places it was lying in
water. The roadway outby the last open crosscut was wet. At one time
or another, it was likely that the splice would be in direct contact
with this water. Frequent contact-with the cable was necessary in
this area in order to allow passage of vehicles. An individual might
al3o suffer an electrical shock if he stood. in water nearby. Every
miner on the section was endangered by these hazards. If any of these
accidents were to occur, the probable result would be serious injury
or fatality.
Docket No. HOPE 78-646-P
The two violations included in this docket number were observed
by Federal coal mine inspectors on Octo her 27, 1977, in the course of
a regular inspection.
Inspector Bowman issued 104(c)(2) Order of Withdrawal No. 1 JFB
after he observed that the Respondent had mined within 30 feet of
abandoned areas without first drilling test holes. He cited 30 CFR
75.1701 which, in pertinent part, requires the following:
Whenever any working place approaches within 30 feet
of abandoned areas in the mine as shown by surveys made and

1077

certified by a registered engineer or surveyor, or within
200 feet of any other abandoned areas of the mine which
cannot be inspected and which may contain dangerous accumulations of water or gas, or within 200 feet of any workings
or adjacent mine, a borehole or boreholes shall be drilled
a distance. of at leat 20 feet in advance of the working
face of such working place and shall be continuously main~
tained to a distance of at least 10 feet in advance of the
Before entering the mine, the inspector had examined an up-todate mine map which indicated that mining was being done within
30 feet of an abandoned area. The abandoned area was comprised on
one side of old works and on the other of mined-out areas. Neither
area could be inspected because the old works had been sealed off
and the roof in_the mined-out area was falling in. The section foreman, Lacey Justice, admitted to the inspector that test bore holes
had not been drilled. The operator did not have the equipment at
the mine to drill as required. When using conventional equipment andtaking a 10-foot cut, a test hole must be drilled 10 feet beyond the
cut for a total of 20 feet. The Respondent had on hand a single
auger which could be used to drill up to 10 feet only.
The requirement to drill bore holes was set out in the ventilation plan for .the No. 1 Mine. The operator was aware of the close
proximity of abandoned areas. When questioned by the inspector,
Mr. Justice stated that the holes had not been drilled because they
did not have the the necessary drill bits or augers.
This was a hazardous condition. The danger presented was the
inundation of the area with water or gas. It was possible that
water had accumulated in the abandoned areas against the coal seam
which they were mining. Methane or black damp, oxygen-deficient
air, might also have accumulated there. The probable result of
inundation would be serious injury or fatality.
Inspector George Smith issued 104(c)(2) Order of Withdrawal No. 1
GLS, (October 27, 1977), citing 30 CFR 77 .S02, after observing conditions which led him to believe that the required examination of electrical equipment was being carried out either inadequately or not at
all. Section 7S.S02 provides the following:
Electric equipment shall be frequently examined,
tested, and properly maintained by a qualified person to
assure safe operating cond,i tins.. 1i."hen a potentially
dangerous condition is found on ele.ctric equipment, such
equipment shall be removed from secyice until such condition is corrected. A record of such examina,tions shall
be kept.
The inspector observed violations of sections 77 .SOS, 77 .S06,
77 .SOl, 77 .S07, and 77 .S21, all of which relate to surface electrical

1078

equipment. The number of these violations indicated that the examination of electrical equipment was not being carried out •. The inspector was also unable to find any record of electrical examinations.
Curtis Kirk, Respondent's chief electrician, admitted that he had not
been making or recording examinations.
Mine management should have known of the requirement to raake and
record examinations, yet it failed to do so. Given the number of· vio""'
lations present, it is probable that the failure to make and record
examinations would cause an accident. Unless an examination of electrical equipment is carried out, the miner has no way of knowing
whether a hazardous condition exists or not.
Docket No. HOPE 78-~64-P
A single violation is alleged under this docket number. Inspector .Herbert M. McKinney issued Order of Withdrawal No. 1 CDH-HM on·
May 23, 1977, citing 30 CFR 75.201. Section 75.201 reads as follows:
"The method of mining followed in any coal mine shall not expose the
miner to unusual dangers from roof falls caused by excessive widths
of rooms and entries or faulty pillar recovery methods."
The inspector issued this order in the course of an accident
investigation. Two miners had been injured by a roof fall while they
were spot-bolting in the area of pillar Nos. 1 and 2 in the Day Camp
Branch Portal. The method of pillar recovery being used posed a hazard to the miners working there in a number of respects. The block
of coal in question had been partially split. Five places had been
started off this split without setting the necessary turnposts and
breaker posts. A six-way intersection was thereby created. The
roof was supported with roof bolts and very few posts. In addition,
the roadway exceeded 20 feet, the maximum width approved by MSHA.
In places, it was as wide as 24 feet. These practices were clearly
in violation of section 75.201.
Mine management should have known that the method which was
used to remove the pillar was hazardous. The inspector was of the
opinion that management was attempting to mine as much coal as possible without going to the expense of setting additional supports.
The method of extraction used created a hazardous condition and
resulted in serious injury to a miner. That miner suffered a br6ken
back.
ASSESSMENTS
In consideration of the findings of fact and conclusions of law
in this decision based on stipulations and evidence of record, the
following assessments are appropriate under the criteria of section
109(a) of the Act.

1079

Docket No. HOPE 78-644-P

Penalties

Order of Withdrawal No. 1 JFB (October 6, 1977)
Order of Withdrawal No. 2 JFB (October 6, 1977)

$ 750
$ 750

Docket No. HOPE 78-645-P
Notice of Violation No. 1 LCF (May 24, 1977)
Notice of Violation No. 9 JFB (October 6' 1977)

$ 375
$ 350

Docket No. HOPE 78-646-P
Order of Withdrawal No. 1 JFB (October 27, 1977)
Order of Withdrawal No. 1 GLS (October 27, 1977)

$1,250
$1,250

Docket No. HOPE 78-664~P
·Order of Withdrawal No. 1 CDH-HM (May 23, 1977)

$1,500

Proposed findings of fact and conclusions of law inconsistent
with this decision are rejected.
ORDER
The Respondent is ORDERED to pay the amount of $6,225 within
30 days of thds decision.

Forrest E. Stewart
Administrative Law Judge
Issued:
Distribution:
David Barbour, Esq., Leo McGinn, Esq., Office of the Solicitor,
MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
~rlington, VA 22203
Charles A. Tutwiler, Esq., P.O. Box 739, Welch, WV 24801
(Certified Mail)

1080

flEDERAL MINE SAfrETV AND H!EAl"'fti REVREW COMMBSSBON
OFFICE OF ADMlllilSYRAnVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. DENV 79-257-PM
A.C. No. 39-00509-05002

v.
Virginia Mine
PACER CORPORATION,
Respondent
DECISION
Appearances:

Robert S. Bass, Esq., Office of th~ Solicitor, U.S.
Department of Labor, for Petitioner; ·
Robert L. Cullum, President and General Manager, and
Mike Treloar, Safety Director for Pacer Corporation,
for Respondent.
·

Before:

Administrative Law Judge Michels

This matter is before me for hearing and decision on the petition
for assessment of civil penalty filed by Petitioner MSHA on January 25,
1979. The Respondent, Pacer Corporation, answered the petition on
February 2, 1979, and entered in effect a general denial. A hearing
was held in Rapid City, South Dakota, on June 5, 1979, and thereafter
the parties filed briefs and proposed findings.·!/
The only significant issue in this proceeding is whether a miner,
Nerl Krueger, a rock sorter, was exposed to silica dust in excess of
that permitted under the standard 30 CFR 55.5-l(a). 2/ MSHA contends
that the threshold limit value for this miner under the regulation
is 1.105 mg/m3 (milligrams per, cubic meter), and that such employee
was ~xposed to a concentration of 1.564 mg/m3 when sampled on
April 20, 1978.
1/ The proposed findings not adopted or specifically rejected are
hereby rejected, as iminaterial or not supported by fact.
!:,/ The mandatory standard 55.5-l(a) reads in pertinent part as follows:
"(a) Except as provided in paragraph (b), the exposure to airborne contaminants shall not· exceed, on the basis of a time weighted
average, the threshold limit values adopted by the American Conference
of Governmental Industrial Hygienists, as set forth and explained in
the 1973 edition of the Conference's publication, entitled "TLV's
Threshold Limit Values for Chemical Substances in Workroom Air Adopted
by ACGIH for 1973," pages 1 through 54, which are hereby incorporated
by reference and made a part hereof."

1081

The Respondent has no disagreement with the mathematical calculations made by MSHA's laboratory technician (Tr. 73), but it does in
effect argue that there was an error in the sampling p.rocedure because
it claims that the 3- to 14-percent variance in the percent of free
silica shown by the evidence is entirely unlikely.
The charge here is focused on a condition which existed in a relatively small shed or room with dimensions of approximately 12 by 16 feet.
On April 20, 1978, five miners were sampled and four of these worked
inside the shed. One was designated den leader. Mr. Krueger was a
rock sorter and the others were designated as pickers. The occupation
of_the fifth man apparently working outside the shed was that of loader
and truck operator (R-1).
The record is not completely satisfactory as to the precise location of the four men who worked inside the sorting room, nor does it
disclose whether or not they may have exchanged places. All that is
known from the record is that the four men were working as sorters
or pickers in the shed separating feldspar from the rock (Tr. 29-30).
The record further shows that a belt went completely through the room
and it would appear to be a reasonable inference that the men worked
across from ea~h other on either side of the belt: 3/ Of the men in
the sorting room none were overexposed except Mr. Krueger (R-1, R-4).
The record gives us some details about the sorting room, but not
all aspects of it are fully described. Mr. Treloar stated that it
had one door, partial openings at each end through which the
conveyor belt passed and windows on either side which apparently were
boarded over (Tr. 69). The size of the room was given as approximately 12 by 16 feet. The witnesses disagreed as to the placement of
a ventilation fan. Mr. Westphal, the inspector, asserted that
Mr. Krueger, the exposed miner, was in the northwest corner of the
shed and that there was a fan drawing air up by that location (Tr. 16).
Mr. Treloar, on the other hand, testified that the fan was in the
center (Tr. 73). !±/
The evidence presented by MSHA shows the weight of the dust
obtained in the samples as well as a percentage of the contaminant
silica. The TLV or threshold limit value which establishes the maximum
exposure is obtained by a formula contained in the document titled,
3/ In its posthearing brief, Respondent contends that the men were
only a few feet from one another and were working at the same task
only an arm's length apart.
4/ It is difficult to say who was right with respect to the fan. In
Its posthearing brief, in a statement which is not evidence, Respondent
asserts that there are in fact two exhaust fans in the shed, one at
each end of the building over the belt and shrouded to the belt.

1082

"TLV' s Threshold Limit Values for Chemical Substances in Workroom Air
Adopted by ACGIH for 1973. 11 The initials stand for the "American
Conference of Governmental and Industrial Hygienists. 11 The docuinent
is incorporated by reference into the regulation.
The sampling processes are fully covered in the record from
page 37 forward. ·The filters are first dessicated and the weight
recorded. The inspector takes these and places filters which apparently are in cassettes into dust-pumps. The dust-pumps have previously
been calibrated. The pumps are placed on the men for approximately
8 hours. They are checked during the 8-hour period. The measurements
are all recorded (P-1, P-3). After use, the cassettes are returned to
the laboratory where they are reweighed and a record is made of the
dust weight (P-4).
After the weighing of the filters, they are sent via U.S. mail to
the Denver Technical Center where they are analyzed for silica. The
dust sample form (Tr. P-4) is partly filled out at the regional MSHA
office and follows the samples to Denver. The laboratory in Denver
fills in the amount of free silica detected by the laboratory tests.
In the case of Mr. Krueger, the di;st weight was found to be 1.177 milligrams and the free silica detected was 90 micrograms.
Upon obtaining the results from the samples, the laboratory technician at MSHA's regional office calculates the amount of the TLV or
threshold limit value. In Mr. Krueger's case, it was 1.105. The perc.entage of quartz or free silica was found _to be 7 .047 percent. The
technician first finds the TWA or time weighted average which in the
case of Mr. Krueger was 1.564 milligrams per cubic meter. The amount
of the TLV is determined pursuant to the formula found in the "TLV
Book" (P-6). In Mr. Krueger's case, as noted, he was exposed to
1.564 milligrams per cubic meter, whereas the threshold limit value
was 1.105. He was, in other words, .459 milligrams over the threshold
limit according to the test, which is a significant amoun~ (Tr. 61).
The evidence produced by MSHA shows that of the five miners
sampled, only one, Mr. Krueger, was overexposed on the basis of the
threshold.limit value found. Respondent has made no showing that an
error was made at any particular stage of the sampling procedure. It
claims only in a general way that mistakes are often made. Mr. Treloar
suggested the possibility that a. pump could be turned upside down, but
there was no evidence to suggest that this happened (Tr. 65). In its
brief, Respondent claims that only a minute sample is taken, but there
has been no showing that such a small sample would necessarily be
invalid.
Nevertheless, Respondent takes the position that a variance of
from 3-to 14-percent free silica is virtually impossible.

1083

The net result is that MSHA has presented evidence showing that
in a relatively confined Space, one miner out of four was overexposed
to silica dust. The logic of this result is troubling. It is possible perhaps that air currents for some reason unknown carried more
dust toward and into the filtering pump of the one miner, Mr. Krueger,
than into the pumps of the others. That seemed to be MSHA's explanation for the variation since it presented evidence about the placement of the fan. · It is true that the sampling shows that Mr. Krueger
received 'more dust then all the others (Exh. R-1).
It is possible perhaps to accept the fact that one miner received
more dust than three others even though in a restricted space, because
of the vagrancy of air currents. But, it is harder to rationalize on
this record the further fact of_the wide variances in silicia received
of the five sampled. Only three were relatively close in terms of the
percent of contaminant received. The percentages for these three were
7.047, 8.974 and 7.246. The other two miners received widely varying
amounts of silica, of 3.825 and 14.572 percent. If the silica is
fairly constant in the rock feldspar being processed as Mr. Treloar
testified, it is reasonable to question why the amount should vary so
widely in the dust in the atmosphere. Possibly there is a good explanation for this but the record does not reveal it. Mr. Benson, MSHA's
laboratory technician, testified that the results were not so far out
of line as to suspect them of being invalid and that "[t]hese are
pretty much in line with what we've been running at Pacer" (Tr. 54).
Since Mr. Benson was not specific, it is unknown whether he was talking about the free silica content, the sample dust weight, or both.
In another context, he testified that variances from 3.8 to 14.7 percent of silica did not cause him to question the analysis because he
never knew where the men were working (Tr. 60). He was not asked,
however, for his opinion based on the fact that four of the men were
all working in the same 12 by 16 room, and he did not testify that
such variances may be expected in these circumstances.
The inspector at the time of the inspection had not formed an
opinion as to why only one employee was overexposed "because I didn't
realize that I would have any over, or if there was, I could have
supposed that all of them would have been over" (Tr. 16). [Emphasis
supplied.] He later went on to express his opinion as formed after
the results were received from Denver and this was that a fan drew the
air right up by the affected miner. This opinion is at least questionable in light of other evidence about the fan's location, but in any
event, his opinion would explain only the increase in sample weight it
does not explain the percentage variation of free silica among the
five miners sampled.
No witness directly addressed the question of the variance in the
free silica, except Respondent's witness, Mr. Treloar, Pacer's safety
director. He testified that he runs silica analyses in Respondent's

1084

chemical laboratory in the ore mine, and that one would not expe~t to
find more then one-hundredth of a percent of silica (Tr. 64). On the
other hand, he did not run a test for free silica which apparently
requires more sophisticated testing equipment. He claimed, however,
that he estimated the free silica to be high (Tr. 70). In expressing
his opinion that it would not be possible to have the variances
shown on Exhibit P-4, Mr. Treloar stated:
Okay. My analysis of feldspar chemical. I base my opinion
on this, on my chemical analysis of feldspar. It just does
not vary that much. There is, what, almost an eight percent
variance there, and even from different ore bodies its
almost impossible. I've never run into it even in different ore bodies throughout the Hills, that it will have that
great of variance.
(Tr. 71). He also testified that there should not be a difference in
concentrations between the material itself and the dust that is airborne (Tr. 73).
On the state of this record, I cannot conclude that MSHA has met
its burden of proving a violation by the preponderance of the evidence.
The fact of the wide variations in the percent of free silica in the
samples has not been explained. On the basis of the limited evidence
on the subject, it is at least as likely that the sample results demonstrate the inaccuracy of the methods as it is that they show that one
miner was overexposed. When the evidence contains such an uncertainty,
it is my conclusion that MSHA has not sustained its burden. On this
record, I am not questioning MSHA's sampling procedures in general.
All that this decision resolves is that the evidence in this proceeding
is inadequate to support a finding that one of the five sampled miners
was overexposed. Accordingly,
It is ORDERED that Citation No. 328213, issued May 15, 1978, be
VACATED and this proceeding be DISMISSED.

c~J?<J~
Franklin P. Michels
Administrative Law Judge

Distribution:
Robert S. Bass, Esq., Office of the Solicitor, U.S. Department of
Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106
(Certified Mail)
Robert L. Cullum, President & General Manager, and Mike Treloar,
Safety Director, Pacer Corporation, 41 South Third, Custer, SD
57730 (Certified Mail)

1085

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

RANDY INMAN AND KENNY HINKLE,
Complainants
v.

Discrimination Complaint

MID-OHIO MINING COMPANY,
Respondent

Redfield No. 2 Strip Mine

Docket No. ViNC 79-184

DECISION
Appearances:

William Safranek, Esquire, McConnelsville, Ohio, for
the complainants;
Robert H. Albert, Esquire, Columbus, Ohio, for the
respondent;
Thomas P. Piliero, Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, amicus curiae.

Before:

Judge Koutras
Statement of the Proceeding

This matter concerns a discrimination complaint filed by the complainants against the respondent pursuant to section 105(c)(3) of the
Federal Mine Safety and health Act of 1977, 30 U.S.C. § 801 et~·
The complaint was filed with the Commission on February 12, 1979,
and the respondent filed a timely answer denying any discrimination
against the complainants. After a period of discovery in which interrogatories were served on and answered by the respondent, the matter
was heard in Columbus, Ohio, on May 1, 1979, and the parties appeared
by and through counsel and participated fully in the hearing. Posthearing proposed findings, conclusions, and supporting briefs were
filed by the parties and the arguments presented therein have been
duly.considered by me in the course of this decision.
The thrust of the complaint is the assertion by .the complainants that they were laid off from their jobs with the respondent on
November 25, 1978, because of a complaint made to State mine inspectors concerning unsafe equipment. A previous complaint filed by the
complainants with the Labor Department resulted in a finding by that
Department that the complainants were not discriminated against and
their complaint was dismissed.

1086

Issue Presented
The principal issue presented in this proceeding is whether the
termination of Mr. Inman and Mr. Hinkle from their employment wa~, in
fact, prompted by their reporting certain unsafe conditions at the
mine to a State mine inspector.
Applicable Statutory and Regulatory Provisions
1.

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

§ 301 et !5:.S.·

2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3), which
provide:
(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the
statutory rights of a miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at a coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners
or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified to or is about to testify in any such proceeding, or because of the exercise of such miner, representative of miners or applicant for employment on behalf
of himself or others of any statutory right afforded by
this Act.
(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days
after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation
to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secrectary's receipt

1087

of the complaint, and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending
final order on the complaint. If upon such investigation,
the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a
complaint with the Commission, with service upon the
alleged violator and the miner, applicant for employment,
or representative of miners alleging such discrimination
or interference and propose an order gran~ing appropriate
relief. 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 upon
findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing other appropriate
relief. Such order shall become final 30 days after its
issuance. The Commission shall have authority in such proceedings to require a person committing a violation of this
subsection to take such affirmative action to abate the vinlation as the Commission deems appropriate, including, but
not limited to, the rehiring or reinstatement of the miner
to his former position with back pay and interest. The
complaining miner, applicant, or representative of miners
may present additional evidence on his own behalf during
any hearing held pursuant to this paragraph.
(3) Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in writing,
the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred.
If the Secretary, ·upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice
of the Secretary's determination, to file an action in his
own behalf before the Commission, charging discrimination or
interference in violation of paragraph ( 1). 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 upon findings of fact,
dismissing or sustaining the complainant's charges and, if
the charges are sustained, granting such relief as it deems
appropriate, including, but not limited to, an order requiring the rehiring or reinstatement of the miner to his former
position with back pay and interest or such remedy as may
·be appropriate. Such order shall become final 30 days after
its issuance. Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum equal to

1088

the aggregate amount of all costs and expenses (including
attorney's fees) as determined by the Commission to have
been reasonably incurred by the miner, applicant for emp-loyment or representative of the miners for, or in connection
with, the institution and prosecution of such proceedings
shall be assessed against the person cornmitting such violation. Proceedings under this section shall be expedited by
the Secretary and the Cornmission. Any order issued by the
Commission under this paragraph shall be subject to judicial
review in accordance with section 106. Violations by any
person of paragraph (1) shall be subject to the provisions
of sections 108 and llO(a).
Testimony and Evidence Adduced by the Parties
Complainants
Ronald K. Leigh, State of Ohio mining inspector, testified he
was familiar with the Redfield No. 2 Mine operated by the respondent
and that he has conducted inspections at that mine, and did so on
November 24, 1978. The mine is a nonunion mine and employed approximately 10 people during that time. On November 24, one of his fellow
State inspectors, a Mr. Jackson, came to his home and advised him that
he had received complaints about equipment with. no brakes being operated at the mine. He and Mr. Jackson went to the mine and met the
mine foreman, Donald Vernon, who introduced himself and advised them
that he had shut the pans down because they had no brakes. Mr. Vernon
admitted that the pans were operated with no brakes because it was
difficult to obtain parts. Mr. Vernon assured him that the machinery
would be repaired and he (Leigh) put a danger sign on the machinery
and instructed Mr. Vernon not. to operate it until the brakes were
repaired. During the course of the inspection, Mr. Leigh found some
other violations, a dozer with a blown fuse, a loader with a defective
windshield wiper, no first-aid equipment on the property, and a fuel
truck with no brakes, defective turn signals, and a defect:i.ve exhaus.t
system (Tr. 9-19).
Mr. Leigh stated that after finding the violations, he discussed
the matter with Mr. Vernon, and Mr. Vernon indicated he was having
problems with the equipment and admitted that some of the pans had
run together and one turned over. Prior to this time, Mr. Leigh had
received no reports of such incidents at the mine. Mr. Leigh stated
he "let it slip" to Mr. Vernon that he had learned about the pans,
but did not mention any names. Mr. Vernon produced copies of equipment worksheets required to be filled out on the equipment when it is
checked, and he mentioned that one of his employees was doing his job
because he had noted some equipment defects on the worksheets.
Mr. Vernon also asked about Mr. Jackson and i~dicated that he knew
his father. The equipment that was tagged out was subsequently
repaired and put back in operation in a matter of days (Tr. 19-26).

1089

On cross-examination, Mr. Leigh testified that when he went to
the mine on November 24, he did not know who had informed Mr. Jackson
about the safety violations at the mine. He did not give Mr. Vernon
the names of Mr. Inman or Mr. Hinkle as the parties who had informed
State inspectors about the violations, and he would never tell a mine
owner or foreman who had informed, and that is his practice. He could
recall nothing in his conversation with Mr. Vernon that would lead
Mr. Vernon to know who had informed, except for the conversation with
Mr. Jackson that Mr. Hinkle and Mr. Inman lived in the area near
Mr. Jackson. Mr. Leigh did not know Mr. Inman or Mr. Hinkle, nor did
he know where any of the mine employees lived (Tr. 26-28).
The usual practice when the equipment is down, is to have mine
employees help repair it, but he did not know the mechanical abilities
of Mr. Inman or Mr. Hinkle (Tr. 29-31). Mr. Vernon did remark that
"Randy" was the only person marking the equipment sheets as indicating
that something had been wrong with the equipment (Tr. 33).
In response to bench questions, Mr. Leigh described a 11 pan" as a
scraper used to take off topsoil (Tr. 34), and that during his prior
inspection some 7 months earlier, he found no major violations or
equii;.aent defects (Tr. 36). Neither Mr. Hinkle nor Mr. Inman made
any specific complaints to him, and Mr. Jackson was the person who
notified him, and he (Leigh) did not know Mr. Inman or Mr. Hinkle
prior to that time (Tr. 37-38).
Richard Jackson, State mining inspector, testified he was
acquainted with Mr. Hinkle and Mr. Inman and indicated that they live
approximately a mile and a half from him. He testified that Mr. Inman
reported mine safety violations to him at a local school carnival on
approximately November 10, 1978. Mr. Inman told him that the pans
were running unsafe, running into each other, and that one had turned
over, and he asked him if there were anything he could do about it.
Mr. Jackson advised him that he would report it to the inspector who
had jurisdiction in the mine district and that he did so by telling
Mr. Leigh about it. Upon inspection at the mine on November 24, they
found the pans operating without brakes, a defective exhaust system
on a truck, and the fact that no first-aid equipment was available
(Tr •. 40-45, 57).
Mr. Jackson discussed the violations with Mr. Vernon and he produced the equipment worksheets. One particular individual who had
filled out the sheets had noted items that needed to be fixed, while
the other sheets simply noted that the equipment was 11 0.K." This
individual was Mr. Inman and he pointed it out to Mr. Vernon and he
knew who he was talking about because he looked at Mr. Inman's worksheets. Mr. Vernon then asked him about his father and asked whether
he lived near him and he indicated that he did. Mr. Leigh "let it
slip" that they had known about the equipment defects (Tr. 45-48).

1090

On cross-examination, Mr. Jackson testified that Mr. Inman specifically mentioned the pans and the fact that the equipment was running into each other. The complaints were not in writing and he did
not indicate to Mr. Vernon or to the respondent company as to who filed
the complaint, nor did he make any specific statements to Mr. Vernon
which would indicate to him who filed the complaint, and Mr. Vernon
did not ask (Tr .. 49-53). At the time of the complaint on November 10,
Mr. Hinkle was present but merely asked him whether Mr. Inman had
had spoken to him (TR. 57).
In response to bench questions, Mr. Jackson stated that he said
nothing to Mr. Vernon which would lead him to oelieve that Mr. Inman
or Mr. Hinkle had filed any safety complaints. He could not recall
the specific periods of time covered by the equipment worksheets
which ·he reviewed, nor could he recall the specific equipment which
was covered. He had no way of knowing whether the equipment marked
"O.K." was, in fact, in good condition, and it was possible that it
was. When he handed Mr. Vernon the worksheets filled out by
Mr. Inman, Mr. Vernon remarked that "Randy does a good job," but he
could conclude nothing from that remark, nor could he conclude that
Mr. Vernon suspected him as being the person who had complained (Tr.
62-69).
Richard E. Cooper testified that he was formerly employed by
the respondent as a mechanic from May to December of 1978 and quit
because of a disagreement. He was aware of defective brakes on the
scrapers and since they had so much work, as long as the equipment
would run, it would be operated in that condition. Mr. Vernon
instructed him to operate the equipment by "backing off the brakes,"
and they simply did not have the time to make brake repairs. He was
not at the mine site on November 24, but he does know Mr. Inman and
Mr. Hinkle and considers them to be good operators. He worked for
Mine Foreman Vernon on a day-to-day basis and did not consider him
to be a good foreman because he did not know how to move his dirt or
work with his men. Company President Rybski had asked him to assist
Mr. Vernon, but he would not take the foreman's job, although he
took such a job at a different mining company. When the equipment
was c;lown, Mr. Inman and Mr. Hinkle would "help out a little bit" in
assisting the mechanic in making repairs (Tr. 76-84).
On cross-examination, Mr. Cooper testified he was terminated by
the respondent on December 7, 1978, and that Mr. Rybski stated, "[w]e
had better part company." He recalled repairing a scraper shortly
before he left the company, and indicated that it "blowed up" shortly
after that, but insisted he was not at fault since he believed he
had repaired the machine properly (Tr. 85-87).
William McCormick testified that he was employed by the respondent in November of 1978 and recalled the day the State inspectors
came to the mine, but knows nothing about what they found. He

1091

recalled mine foreman Don Vernon addressing the men as a group
after the inspectors left and recalls him asking "[w]ho was the
dirty son-of-a-bitch that called the inspectors in?" (Tr. 88-91).
On cross-examination, Mr. McCormick stated that Mr. Vernon met
with the men the morning following the departure of the inspectors
from the mine, and the whole crew was present. Nothing else was discussed and no one.said anything else and Mr. Vernon mentioned no names
as possible parties who may have filed the complaint. Mr. McCormick
had no knowledge as to who may have made any safety complaints, and
Mr. Vernon never made any further inquiries in this regard.
Mr. Vernon did remark that Mr. Inman was "a damned good operator"
(Tr. 91-96).
Wayne Baker is employed by the respondent and was so employed
in November 1978. He recalls Mr. Vernon making a remark concerning
"[w]ho was the dirty son-of-a-bitch" that turned him in to the inspectors, but the remark was not addressed to anyone in particular. He
knows Mr. Inman and Mr. Hinkle and stated that they seemed to do
their work as scraper operators. He recalled an accident when the
engine on his pan quit and went backwards and ran into another one.
The fact that the brakes were inoperative would not have made any
difference since once the engine quits, all power is lost. The pan
had no brakes that day and Mr. Vernon knew it (Tr. 99-102).
On cross-examination, Mr. Baker stated that Mr. Vernon received
no information from his remark that would indicate to him that
Mr. Inman or Mr. Hinkle were the ones that contacted the State
inspectors (Tr. 102).
Mr. Baker had no idea who had contacted the State inspectors
at the time Mr. Vernon made his remark, and when he learned that
Mr. Inman and Mr. Hinkle were laid off, he did not know what to make
of it. The remark made by Mr. Vernon was "off-the-cuff" at the end
of the shift, the day the inspectors came and was not directed to
anyone in particular (Tr. 103-105).
Robert Robinson was formerly employed by the respondent as a
dozer operator and indicated that when problems arose with the equipment, he would help repair it. Problems were experienced with equipment brakes. He was working on a front-end loader the day the
inspectors came to the mine, and they did not have time to fix the
brakes. As far as he knew, mine management and the foreman were
aware that the brakes were not working on some of the equipment. Re
recalled Mr. Vernon making the remark concerning who may have complained to the inspectors and believed that Mr. Inman and Mr. Hinkle
did their job (Tr. 106-109).
Larry Jennings was employed by the respondent until the end of
November 1978, but was not at the mine when the inspectors were

1092

there. He was involved in an accident concerning Mr. Baker when his
pan engine quit and his machine came down a hill, and he also rolled
a pan. If the pan had good brakes, the accident may have been prevented (Tr. lll-ll2). He rolled his pan when he tried to cut a
square corner and rolled over. That incident was not caused by bad
brakes, but by a mistake in judgment on his part (Tr. 116-117).
Randy Inman testified that he is now employed as a pottery worker
and ram press operator. He was previously employed in mining beginning
in 1973, and has operated loaders, trucks, and bulldozers, and has had·
7 years of mining experience. He worked at respondent's mine from
August 11 to November 25, 1978, and he ind:i.cat~d that there had been
accidents at the mine involving a highwall collapse and pans colliding. The pans did not have brakes and company management knew about
it. 4s long as they would run, he was supposed to run them and he was
concerned that someone would be injured. He spoke with Mr. Jackson
about the situation and Mr. Hinkle was with him at the time, although
he was not directly involved in making the report to Mr. Jackson. He
was simply standing nearby. He was operating equipment at the mine
when the inspectors appeared and he told John Hammond that he had
spoken to Mr. Jackson about the situation and this was before they
came to the mine. Mr. Vernon addressed the miners and wanted to know
"[w]hich one of you dirty son-of-a-bitches called the inspectors?,"
but no one said anything (Tr. 120-132). When he and Mr. Inman
reported to work later on a Saturday, Mr. Vernon instructed them to
go to his office and told them that he wanted to speak to them.
Mr. Vernon advised them that since the pans were shut down, they
would have to be laid off, even though other miners were hired
after they were (Tr. 135). Mr. Vernon told them he "did not like
your act" (Tr. 136) and advised them that they were trying to
"stir up trouble" (Tr. 136). Mr. Vernon advised them that he would
indicate that they were let go for lack of work ·(Tr. 136).
Mr. Inman indicated that he had received recent pay increases,
and about 3 weeks before he was laid off, he received a 50-cent per
hour increase, which other older workers did not receive. He also
indicated that Mr. Vernon made him a leadman over two other workers
and that he never missed any work time. He also indicated that he
averaged 20 to 25 hours of overtime each week and that he had
assisted in the repair of equipment and he assumed that there was
work of this type available after November 24. He identified several daily worksheets which he turned in and which indicated that
equipment needed repairs (Tr. 136-144; Exhs. C-2 through C-2(h)).
On cross-examination, Mr. Inman testified that after he was laid
off, he began work with Hall Pottery Company on January 27, 1979, at
a daily pay of $27, plus a weekly bonus ranging from $30 to $60. He
indicated that he has made as much as $208 in 1 week, and that he was
on unemployment drawing $51 a week from the time he was laid off until
he went to work with Hall Pottery. He stated that he told no one

1093

other than John Hannnond that he had reported the unsafe working conditions. He told Mr. Hammond because they were co-workers and good
friends. He did not tell Mr. Vernon that he reported the conditions.
On the day he was laid off, he called Mr. Rybski to inform him that
he and Mr. Hinkle had been laid off and Mr. Rybski indicated that he
did not know about it, but would make an inquiry into the matter. He
denied ever telling anyone that he "would get Don Vernon." No one
other than Mr. Hinkle and Mr. Hammond knew that he had informed the
the State inspectors about the equipment defects. He made no statements prior to November 24 to Mr. Vernon which would lead him to conclude that he had made any complaints (Tr. 144-154).
On redirect examination, Mr. Inman testified that when they were
getting ready to leave work on the day the inspectors arrived, he
observed Mr. Hammond and Mr. Vernon talking together in a truck, but
he did not know what they were talking about. He indicated that
several other employees were hired after he was, and this included
Mr. Hammond, Mr. Hinkle, and Mr. Vernon.
On recross-examination, he could offer no reason as to why
Mr. Hammond would have breached his confidence and informed Mr. Vernon
of the fact that he had complained to the State inspectors (Tr. 155159).
In response to questions from the bench, Mr. Inman stated that he
knew of no reason why Mr. Hammond would inform Mr. Vernon about the
fact that he hiid complained to the State inspectors, except possibly
"to better himself in the company." Although the mine is inspected
by Federal Mine inspectors, he never saw any on the property, and the
reason he did not complain to them is that he did not know how to.
contact them. During the period of his employment at the mine, he did
not see fit to bring the equipment conditions and roll-overs to the
attention of mine management because they knew about them. He also
believed that mine management should have known about the equipment
defects because of the fact that they were reported on the daily work
reports, and, even though mine management knew about them, they did
nothing (Tr. 159-167).
Mr. Inman stated that he believed he was laid off because he had
complained to the State mine inspectors. He and Mr. Vernon had been
friends and Mr. Vernon simply told him he "didn't like his act" when
he informed him that he was being laid off. He gave Mr. Vernon no
reason to believe that he had informed the State inspectors (Tr. 167169). On the day that he was laid off, he contacted State Inspector
Jackson and asked him whether he had told anyone about the complaint
and Mr. Jackson informed him that he had not. Mr. Jackson arranged
for him to speak with the MSHA people in New Lexington the following
Monday (Tr. 172-176).

1094

On further recross-examination, Mr. Inman identified a signed
statement he made to MSHA on November 27, 1978 (Exh. R-2). He conceded that his statement does not contain any indication that
Mr. Vernon told him that he "didn't like his act" or that he was a
"troublemaker," and he explained that he evidently forgot to mention
it at the time his MSHA statement was made and that his statement was
incomplete. He indicated that when Mr. Vernon first arrived at.the
office on the day of the lay-off, he did "hem-haw at first," poured
himself a cup of coffee, and was leisurely talking to him and
Mr. Hinkle (Tr. 178-181).
In response to bench questions, Mr. Inman "indicated that he and
Mr. Vernon had gotten along well in· the past and Mr. Vernon had
visited his home. He and Mr. Vernon never had any "run-ins" and as
far a$ he knew, Mr. Vernon never "had it in for him" (Tr. 183, 184).
Kenny Hinkle testified that he was acquainted with State mine
inspector Richard Jackson and that he lives about a mile from him.
Mr. Hinkle is now employed in the oil fields, but previously worked
at the Redfield No. 2 Mine from October 1 to November 25, 1978, and
has had a year and a half experience in working with heavy equipment.
He testified that he was aware of equipment defects at the mine,
namely, two pans which had no brakes. He did not report the defects
because mine management knew about it and Mr. Vernon would have him
operate the equipment even though he knew the brakes were bad.
Mr.Hinkle indicated that he was with Mr. Inman on November 10 at a
carnival when he (Inman) complained to Mr. Jackson, and that he was
also at the mine when the State inspectors arrived and tagged some
equipment. On that day, Mr. Vernon made a statement "[w]ho is. the
dirty son-of-a-bitch that called them?," meaning the mine inspectors. The next day, he and Mr. Inman arrived at work as usual and
Mr. Vernon made some work assignments.but asked them to go to his
office. Mr. Vernon arrived at the office and informed them that he
would have to let them go because the mine inspectors shut the pans
down. When Mr. Inman asked why he was being laid off, Mr. Vernon
told him "I didn't like your act." When he (Hinkle) asked Mr. Vernon
why he was being laid off, Mr. Vernon told him that he did not
have enough experience (Tr. 186-194).
Mr. Hinkle testified that he believed he and Mr .• Inman were
laid off because Mr. Vernon somehow learned that they had informed the
State mine inspectors. During the lunch hour on the day the inspectors arrived at the mine, he and Mr. Inman went to Mr. Hammond and he
heard Mr. Inman tell Mr. Hammond what he had done. Mr. Hinkle then
gave Mr. Inman a "dirty look" and left because he did not believe
Mr. Inman should have told Mr. Hammond about the complaint. Later
that day, he saw Mr. Hammond talking with Mr. Vernon. Mr. Hinkle
indicated that he never missed a day of work, had worked overtime,
and had also performed some maintenance work on his equipment (Tr.
194-197).

1095

On cross-examination, Mr. Hinkle testified that he was currently
employed with Altier Petroleum in oil and gas drilling and began work
there in March at a weekly gross pay of $165.70. Prior to this
employment, he was unemployed and drawing $167 unemployment compensation pay. He confirmed that he rolled a pan over on its side on
November 14, and Mr. Vernon told him to be more careful. Mr. Hinkle
stated he told no one that he and Mr. Inman had contacted State mine
inspectors and he did not discuss it with Mr. Hammond, was not in on
that discussion, and it was strictly between Mr. Harrnnond and Mr. Inman.
Mr. Hinkle admitted that he did make a statement that he would "get
Don Vernon." He made this statement to Mr. Vernon a week after he
was laid off and he made it during the course Gf a conversation when
he attempted to learn why he was laid off (Tr. 198-202).
Qn redirect examination, Mr. Hinkle stated that at the time he
rolled over the pan, Mr. Vernon asked him whether he wanted to make
out a report. Mr. Hinkle declined to make a report and Mr. Vernon
asked him to keep quiet about it .. Although he did not discuss the
fact that he had made complaints to State inspectors _with
Mr. Harrnnond, he was present when Mr. Inman advised Mr. Hammond of
this fact.
On recross-examination, Mr. Hinkle stated that during the carnival of November 10, he did not specif:j.cally complain to State Mine
Inspector Jackson, but simply asked him whether Mr. Inman had told
him everything. However, after he was terminated on November 25, he
did discuss the bad pan brakes with Mr. Jackson (Tr. 205-206). After
he was fired, he and Mr. Inman discussed th~ matter with Mr. Jackson
and Mr. Hinkle believed he was fired because he thought that
Mr. Hammond had tol.d Mr. Vernon about the complaint to the State mine
inspector (Tr. 207). Mr. Hinkle stated that he did not know whether
Mr. Imman advised Mr. Hammond that he (Hinkle) had gone with Mr. Inman
to make a complaint to Mr. Jackson. Mr. Hinkle stated that when he
heard Mr. Inman getting ready to tell Mr. Hammond, he left the area
(Tr. 208). Mr. Hinkle stated that prior to his termination, he was
on good terms with Mr. Vernon (Tr. 210).
Respondent's Testimony
Mr. Donald Vernon testified that he was employed by the respondent from approximately August 14, 1978, until January 3, 1979, beginning as a bulldozer operator and ending as a mine foreman, a position
to which he was appointed in October 1978. His responsibilities as a
foreman included keeping all equipment running properly, assigning
work, ordering parts, and generally running the entire mine. For a
brief period of time before becoming mine foreman, he worked with
Mr. Inman and Mr. Hinkle as an equipment operator, and after his
appointment as mine foreman, they worked for him.
Mr. Vernon testified that in his capacity as mine foreman, he
kept records pertaining to personnel evaluations concerning the work

1096

performance and proficiency of his employees, including Mr. Inman and
Mr. Hinkle (Exhs. R-3 and R-4). He testified as to certain entries
made by him on Mr. Hinkle's personnel card, and those were as follows:
11/7/78, fair operator; tries to do the best he can.
11/14/78, he put a -- laid a pan up on its side. No damage
or no report made and there was no time lost. 11/16/78, he
gets excited and he's cowboying his machine.
11/18/78, he's not working out and he doesn't listen
to instructions. 11/25/78, I laid him off: lack of work
and poor performance. 11/30/78, come in to pick up his
check. He threatened me with bodily harm: There was
nobody around but myself.
Mr. Vernon testified as to certain entries that he made on
Mr. Inman's personnel card, and they were as follows:
10/23/78, he operates good, but needs to improve. He
will do anything he's told, but he complains. 11/2/78
came in and picked up his check and went home sick.
ll/7/78, I talked to him about moving a little bit faster.
11/9/78, I raised him to $6.50 on a previous week because
he had cried or after he had cried. 11/13/78, run 400 and
fed to 560; should have been the other way around; left a
big pile of dirt in the pit. 11/13/78, switched him to
the 560 because of poor work. 11/14/78, 560 went out of
service so I laid him off for a few days. 11/25/78, J
laid him off for poor performance and lack of work.
(Tr. 211-226).
Mr. Vernon t t'ified that he believed Mr. Inman was "afraid
of his machine" ,,
did not know the "ins and outs of the machine."
As for Mr. Hinkle, he believf'd that he operated his machine too
fast, failed to listen to safety instructions, and was an unsafe
operator. He would rate Mr. Hinkle as "bad" in following instructions, and Mr. Inman as "fair" in this regard. He terminated them
on November 15, 1978, because of lack of work in that four of the
machines were down, and the week following he was going to lose
two additional rental machines. In these circumstances, he stated
that he would have an overage of three people and someone had to
be laid off. He evaluated all of his personnel and decided to
retain those who he believed were the best, efficient, and safest
machine operators, and seniority had nothing to do with his decision in this regard. There was a decrease in the number of personnel working for the respondent during the period November 24,
1978, and January 3, 1979, namely three, and on November 4, 1978,
the company had approximately 17 employees (Tr. 226-229, 236).

1097

Mr. Vernon stated that he first observed the two State mine
inspectors in question at the mine on November 24, 1978, while giving Mr. Inman some instructions on how to operate the 355 bulldozer.
Mr. Vernon confirmed that he was aware of the fact that two pieces
of equipment were operating with bad brakes and since he saw the
inspectors, he shut the machines down. The inspectors went directly
to those machines· and after some discussion, they "red tagged" them.
He could recall nothing in his conversation with Inspectors Leigh or
Jackson which would give him any indication as to who may have complained to them. He did not terminate Mr. Hinkle or Mr. Inman
because of any knowledge or suspicion on his part that they may
have complained to the inspectors, and the first time he learned
about their complaint was the following Wednesday after they were
terminated (Tr. 229-233).
Mr. Vernon confirmed that after the State inspectors left the
mine site, he did remark to his work crew as to "[w]ho is the dirty
S.O.B.'s that called the inspectors." However, he st:,ated that he
made the remark in a "joking manner" and everyone took it as such.
At that time, since the State inspectors informed him that he would
need ~ foreman for the night shift, and since the only two people
available were John Hammond and assistant mine foreman Bob Rybski,
he took Mr. Hammond aside and asked him whether he would be interested in the job. Mr. Hammond told him he had to check with his
wife and that he would let him know later. Mr. Rybski was used as
the night foreman for awhile and Mr. Hammond was later appointed to
the job (Tr. 233-238).
On cross-examination, Mr. Vernon confirmed that he was aware of
the bad brakes on the machines, was aware of it for a week, and had
instructed the mechanic to take care of the matter. The mechanic
informed him that he could not obtain parts and did not know what was
wrong with the brakes. Rather than shut the machines down, which
would have entailed laying pe...:>ple off, he decided on the "lesser of
two evils" and permitted the machines to run. He believed they could
be operated without brakes since the 12-foot blade could serve as a
braking device, and the area where the machines were operating was
flat· and presented no grave danger. The incident involving the collision of two machines was caused by engine failure rather than bad
brakes. He could recall making no remarks that he considered
Mr. Inman to be a good operator, although he did appoint him as a
"leadman" for a brief period of time over two loader operators on
his shift, namely himself and Mr. Hinkle, and for a brief period of
time, Mr. John Hammond. However, he took him off as lead operator
over Mr. Hammond the day after he appointed him, because he did not
know as much about the machine as did Mr. Hammond. Both Mr. Hinkle
and Mr. Inman worked substantial overtime, and he believed that
Mr. Hinkle was a steady worker, but that Mr. Inman was not because
he missed several days of work, 2 pay days in a row, supposedly due
to the illness of his father (Tr. 238-246).

1098

Mr. Vernon testified that during his conversation with Mr. Hammond
on November 24, he did not question him as to who may have complained
to the State inspectors. Mr. Vernon confirmed that he told the MSHA
investigator that he terminated Mr. Hinkle and Mr. Inman because of
"lack of work and poor performance" (Tr. 249-253). Mr. Vernon denied
that he had been offered reemployment with the respondent or that the
respondent was going to assist him in obtaining employment (Tr. 254).
On redirect examination, Mr. Vernon identified Mr. Inman's and
Mr. Hinkle's time cards and notations which he made on the cards as
to their final pay checks, and the fact that they were terminated for
lack of work (Exhs. R-5 and R-6, Tr. 263).
On recross-examination, Mr. Vernon confirmed that he asked State
Inspector Jackson about his father and whether they were related and
he did so because his father helped him in studying for his mine foreman's test. He did recall Mr. Jackson giving him work slips pertaining to Mr. Inman, or Mr. Jackson remarking that Mr. Inman was doing a
good job (Tr. 266-268).
In response to bench questions, Mr. Vernon stated that he left
his employment with the respondent on January 3, 1979, because he was
not making enough money, that Mr. Hammond never indicated to him that
Mr. Hinkle and Mr. Inman had made any complaints, and he was not aware
that they made such complaints (Tr. 270).
John Hammond is employed as a night foreman bulldozer operator
for the respondent. He testified that he has been employed by the
respondent for 7 months. He confirmed that Mr. Inman told him that
he had called Mr. Jackson about the pan brakes, and believed that the
conversation took place "around November 22, 11 but he was not sure.
He did not recall discussing the subject with Mr. Hinkle. He recalled
the day, November 24, 1978, when the State inspectors came to the mine
to check the equipment, but was not invovled in any discussions with
them. He confirmed the comment made by.Mr. Vernon to the men about
"[w]hich S.O.B. turned us in to the State mine inspectors?," but he
(Hammond) and the others took it as a joke and they laughed about it.
He denied any conversations with Mr. Vernon after that with regard to
the State inspectors, and indicated that Mr. Vernon talked to him
about being a shift foreman (Tr. 272-276).
On cross-examination, Mr. Hammond confirmed that Mr. Inman contacted him the night before the instant hearing and asked to speak
with him about the case. He also confirmed that he told Mr. Inman
that he did not want to discuss it with him because he would have to
give up his job, and that he had a family to support and "was not
messing up for nobody" (Tr. 278). He told no one about Mr. Inman's
advising him that he had called the inspectors (Tr. 279).
In response to bench questions, Mr. Hammond stated that he could
recall no conversation with Mr. Inman concerning his complaining to

1099

the State mine inspectors on the day the inspectors came to the mine.
He ~as not surprised to see the inspectors because he knew that
Mr. Inman had called them and he (Hammond) was looking for them.
Mr. Hammond did not recall Mr. Inmann telling him that he persona-Hy
discussed the matter with Inspector Jackson, and his recollection
was that he said he "called him" (Tr. 281).
Witnesses Recalled for Testimony by the Presiding Judge
William McCormick was recalled and testified as follows (Tr.
285-287):
JUDGE KOUTRAS: I don't want to leave you with the
impression I'm picking on you, but you've been called as
my witness, and you are still under oath. And I just
picked you at random; you just happened to be the first
one on the list here.
I just wanted to ask'you one or two questions. With
respect to the incident where Mr. Vernon went to the
salamander and made some statements as to which of you
S.O.B.'s -- and I'm quoting the testimony here -- blew
the whistle so to speak, do you recall that incident?
I believe you testified to that.
A.

Yeah.

Q.

How did you take that?

A. Well, I just -- It just was a figure of speech.
I don't know; we all might have laughed or I don't -- I
mean, I don't know. I -- of course I didn't know -really know what it was all about.

Q.

Did you laugh?

A.

I might have at the time.

Q.

Was that his only co~ent?

A.

At that time, yes, sir, that I recall.

Wayne Baker was recalled and testified as follows (Tr. 287-289):
.JUDGE KOUTRAS: Mr. Baker, have a seat please. I just
want you to know that I have asked you to come back in
because I've got a couple of questions I want to ask.you
so you are my witness now and you are still under oath.

Q. You testified earlier in the day with regard to
the ind.dent at the salamander where Mr. Vernon had made

1100

a statement of some sort, which of you S.O.B.'s reported
it to the inspector, or words to that effect. Do you
recall that testimony?

A.

Uh-huh.

Q.

And do you recall that incident?

A.

Right.

Q.

How did you personally take his remark?

A.

I don't think it was directed to anybody perI mean, I didn't take it personally directed

sonally.
to me.

Q. Well, I mean, what was your reac.tion.
serious when he sa:i.d it?

Was he

A1 No, I don't think he was. He had kind of a
smile on his face and we all laughed at it when he said
it.

Q.

Did you laugh?

A.

Yes.

Q. Was it an off-the-cuff-type situation or did he
assemble everyone there and say, hey, listen, I want to
to the best of your recollection?
A. No. We was already standing around there and I
think it was just an off-the-cuff remark.

Q. I believe someone asked you earlier whether you
knew for a fact or whether you have the information as
to whether Mr. Inman and Mr. Hinkle had reported safety
infractions to the State mining inspectors; and I believe
your answer was no, you had no knowledge of it?
A.

Right.

Q. Do you know whether there was anything in terms
of any rumors or any stories floating around the mine
that either of these two gentlemen may have made any
complaints?
A.

No.

I never heard any.

No.

Mr. Inman was called in rebuttal by his counsel, and testified as
follows:

1101

BY MR. SAFRANEK:

Q.

This remark that he made, did you laugh?

A.

No, I didn't laugh.

Q.

Did anybody else laugh to your tecollection?

A. I ~- don't remember of anybody laughing. They
could have; of course, you know, like Bill said, I
you know, it's been a long time. You know, I don't

Q. If they had, could it have possibly been
nervous laughter of a sort?
A. It just struck me because, you know, I knew
that I was the one that told them. And I was about
half afraid to say anything or laugh or do anything.
But I figured maybe he was throwing the remark right
to me. I took it personally because I did call him.
I didn't call him; I told him there at the Bingo
thing. And I kind of took it kind of personal,
myself.
Rebuttal Testimony
Mr. Inman was recalled and testified that he could recall no
one laughing over Mr. Vernon's remark, but admitted that he could
not remember because of the passage of time. He took it personally
because he was the person who complained to the State inspectors
(Tr. 209). Mr. Inman also clarified and confirmed the fact that
he complained to Inspector Jackson personally at a local carnival
where he was in attendance (Tr. 297). Mr. Hinkle was recalled and
denied making any "smart remarks" to Mr. Vernon, and also stated
that he followed work directions given him by Mr. Vernon (Tr. 300).
Arguments Presented by the Parties
Complainant
In their posthearing brief, complainants argue that prior to the
November 24, 1978, State inspection of the mine, the mine had been
inspected by State inspectors and found to be in good shape as far
as safety violations were concerned. However, after November 24,
major safety violations occurred, namely, much of the equipment was
operating without brakes or with brakes which were inadequate, and
that mine foreman Donald Vernon was aware of these brake conditions
and, in fact, shut down two defective pans on November 24 before the
State inspectors could get to them. The November 24 State inspection was prompted by complaints made by Mr. Inman and Mr. Hinkle to

1102

State mining inspector Richard Jackson at a local school carnival on
November 10, 1978, and when Mr. Jackson and his fellow inspector,
Ronald Leigh, inspected the mine on that date, they found several
major violations, in addition to the defective brakes, namely, the
lack of first-aid equipment at the mine, and a fuel oil truck operating without brakes and a defective exhaust system.
With regard to Mr. Vernon's alleged motivation in terminating the
complainants from· their employment, it is argued that before the termination, Mr. Inman told fellow miner John Hammond that he and
Mr. Hinkle had talked to Inspector Jackson, and that Mr. Vernon had a
conversation with Mr. Hammond about the report the complainants had
made to Mr. Jackson (Brief, p. 3). In view of "this fact, complainants
argue that there could not have been any other rea.son for their terminations since their attendance records were excellent, both had
worked substantial overtime, and both were considered 'satisfactory
employees, particularly, Mr. Inmann, who in the past had been characterized by Mr. Vernon as a "damned good operator," had.received a
raise just 3 weeks before his termination, and had been designated by
Mr. Vernon as a lead loader operator over other loader operators.
With respect 1.to the respondent's defense concerning the terminations, complainants argue that responent's purported excuse for the
lay-offs, namely, that someone had to be laid off because two pieces
of equipment were shut down and the complainants were selected because
they were less than satisfactory employees is a ludicrous argument
whfch does not square with the realities of mining practice, particularly in a situation where the two employees selected just happen to
be the ones who complained about safety conditions. Complainants
assert that the mathematical probabilities of two employees in such
a situation being terminated is 1 chance in 272 (one-seventeenth x
(one-sixteenth) (16 x 17 = 272). Further, in support of these
assertions, complainants argue that there is substantial evidence
in the record to the effect that the practice in the coal fields
when equipment is down or out is to throw every available man onto
the job of getting it back in working order, even if they are used
only as runners and general laborers, and they cite the testimony of
State Inspector Leigh (Tr. 25-26), and former Mine Mechanic Cooper
(Tr .. 83) as support for this contention.
Considering common experience, complainants arg~e that one can
only conclude that they were terminated because of their report·to
Inspector Jackson and point to the fact that their perception of this
motivation on the part of Mr. Vernon is indicated by the fact that
they innnediately contacted Mr. Jackson after they were terminated, who
introduced them to Federal mine inspector Joe Zavora, who assisted
them in the filing of their initial discrimination complaint on
November 27, 1978: As for Mr. Vernon's knowledge that the complainants had.made the complaint to Mr. Jackson, complainants assert that

1103

the "evidence did show a channel from Inman to John Hammond from foreman Vernon through which the fact of complainants' report to the
state mining inspector could have been communicated" (Brief, pp. 56). Further, complainantsargue that the evidence establishes that
Mr. Inman was substantially more diligent than other workers in
reporting safety defects through certain daily maintenance sheets,
which fact was brought to Foreman Vernon's attention by Inspector
Jackson (Tr. 22, 46-47). A violation of section llO(b)(l) is established when discriminatory action is taken as a result of a report
of a safety violation to the supervisory personnel. Munsey v. Morton,
507 F. 2d J.202 ( 1974). And likewise, a· violation is made ou·t when discriminatory action is also taken against a fellow employee who is a
close friend and companion as Inman and Hinkle"were (Tr. 121, 186,

191).
Respondent's Arguments
Respondent argues that insofar as the alleged discrimination is
concerned, the fact that the respondent was using defective equipment
on the day of the State inspection is not an issue. However, by shutting the equipment down, respondent asserts that the natural consequence of this event was the fact that together with the loss of other
equipment, the operators of the equipment had to be laid off. Regarding the assertion that the complainants could have been retained and
used in making machi_nery repairs; respondent argues that complainants
were not qualified or able to make equipment repairs and that even if
they were, this was a judgment decision for mine management to rnake,
and since the complainants were not mechanics, the respondent properly felt that they were not capable of making such repairs.
With regard to the termination of the complainants by the respondent, respondent argues that the complainants were terminated following the loss of certain equipment, namely, the equipment which was
shut down and other rental equipment. In the judgment of the respondent, since the work performance of the complainants was less than
satisfactory, and since someone had to·be let go, the decision to
terminate the complainants for "lack of work" was a management
perogative which is fully supported by the record, including the
official work records concerning the complainants' period of employment with the respondent. Mr. Inman had been employed for a little
over 3 months prior to his termination, and Mr. Hinkle for less than
2 months.
Regarding Mine Foreman Vernon's purported motive in terminating
the complainants, respondent argues that-there is no credible evidence
that Mr. Vernon knew that the complainants had made any safety complaints to State Mine Inspector Jackson. Respondent dismisses as
"trite guessing and conjecture," the attempts by the complainants to
link.Mr. Vernon's conversations with Mr. Jackson concerning the
identity of Mr. Jackson's father and his place of residence with the

1104

fact that the complainants may have been the individuals who complained to Mr. Jackson. As for Mr. Vernon's remarks concerning
"[w]hich of you S.O.B.'s complained?," respondent asserts that this
remark was made in jest and that the men accepted lt as such. In·
sununary, respondent asserts that the complainants have failed to
establish by a preponderance of the evidence that they were discriminated against or that their terminations were prompted by any
safety complaints made to State mining inspectors.
Findings and Conclusions
· Based on a close and careful scrutiny of the entire record in
this proceeding, it seems clear to me that the assertions made by the
complainants concerning the alleged discrimination may be summarized
as follows:
Complainants were good workers, missed no time at work,
worked substantial overtime, and were for all intents
and purposes, good machine operators capable of performing maintenance on their equipment.
Complainant Inman complained to State Mine Inspector
Jackson about certain safety practices taking place at
the mine and asked him to look into the matter. Since
complainant Hinkle was with him at the time the complaint was lodged, complainant Hinkle must be deemed
to be a complainant along with Inman.
As a result of their complaints to the State inspector,
Inspector Jackson and a fellow inspector came to the
mine, discussed the matter with Mine Foreman Vernon,
advised Vernon that Hinkle was a conscientious worker,
and then proceeded to tag out certain equipment for
safety violations.
After inquiring about the residence of Mr. Jackson's
father, and after attempting to learn who complained by
making the "S.O.B." statement and discussing the matter
with John Hammond, a friend and co-worker of Mr. Inman,
Vernon learned or surmised that Inman and Hinkle had
filed the complaints, and in retaliation, fired them
for making the safety complaints.
Respondent's defense may be summarized as followsi
Complainants were not the best employees, had worked
only a short time with the respondent, and after the
equipment was taken out of service, this resulted in
a surplus of employees.

1105

M:i.ne Foreman Vernon did not know that the complainants had complained to the State mine inspectors,
his 11 S.O.B. 11 remarks were :i.n jest, and his conversation with John Hammond and Inspector Jackson had
nothing to do with any complaints made to the State
mine inspectors.
Respondent exercised its management prerogative in
terminating the complainants rather than keeping them
on in some other capacity.
The record adduced in this proceeding establishes that there
were, in fact, certain unsafe practices taking place at the mine at
or about the time that the complainants were terminated from employment. These practices included the operation of several pieces of
equipment with either marginal or no brakes, and the condition of
the equipment was known to mine foreman Donald Vernon. The record
also establishes that as a result of these unsafe conditions,
Mr. Inman personally advised State Mine Inspector Jackson about them
and asked him what he could do about the situation. Although the evidence reflects that Mr. Hinkle did not personally complain to Inspector Jackson, he was with Mr. Inman at the time the complaint was
lodged, apparently overheard the complaint, and I conclude for purposes of this proceeding, Inspector Jackson could reasonably infer
that both Mr. Inman and Mr. Hinkle ·were making the complaint. Subsequently, as a result of the complaint made to Inspector Jackson,
the mine was inspected, and although the equipment had been taken
out of service voluntarily by Mine Foreman Vernon when he saw the
inspectors approaching, the inspectors tagged out two pieces of
equipment and advised Mr. Vernon not to put them back into operation until they were repaired.
Aside from the fact that there is no direct evidence that
Mr. Vernon knew that Mr. Inman and I1r. Hinkle had complained to
Inspector Jackson, I cannot conclude that the testimony presented
can even support an inference that he knew that they had complained
and retaliated by firing them. While the inspectors did not tell
Mr. Vernon at the time of the November 24 inspection that Mr. Hinkle
and Mr. Inman had complained, Inspector Leigh let it be known that
he "had heard" about the bad brakes on the equipment prior to the
inspection, and Mr. Vernon purportedly acknowledged that he "kind of
thought so" (Tr. 21). As for the worksheets alluded to by Inspector Leigh, Mr. Vernon produced them at Mr. Jackson's request, and
Mr. Leigh overheard Mr. Jackson comment that one of the two (meaning Inman or Hinkle) "was doing their job" because the worksheets
contained "marks on it that there had been something being reported
of bad equipment," and Mr. Leigh believed that Mr. Jackson "mentioned the fellow's name on that sheet at that time" (Tr. 22).
Mr. Jackson testified that he asked Mr. Vernon to produce the
equip~ent worksheet.s and Mr. Vernon produced 11 a big stack of them."

1106

Upon examining the worksheets in Mr. Vernon's presence, Mr. Jackson
connnented that most of them were marked "okay," meaning that the
equipment was in good working order, but that one of the sheets
filled out by Mr. Inman indicated that a particular piece of equi:pment was in need of attention, and he handed Mr. Vernon that particular worksheet.
The testimony establishes that when Mr. Vernon observed the
State inspectors on November 24, he voluntarily took the equipment
with defective brakes out of service and did so because he obviously
believed that they would discover the defects. Mr. Vernon candidly
admitted to the inspectors that the scrapers ware operating without
brakes and indicated he was experiencing difficulty in obtaining the
necessary parts to keep them in repair (Tr. 15-16). And, while
Mr. Jackson testified that upon inspection, the inspectors found
"exactly what had been reported to us, 11 in terms of equipment operating without brakes, the fact is that Mr. Vernon shut the equipment down when he saw the inspectors (Tr. 44).
Inspector Jackson stated that when he showed Mr. Vernon the sheet
filled out by Mr. Inman, Mr. Vernon commented that Mr. Inman "does a
good job, 11 said nothing which wouE lead him to believe that he knew
Mr. Inman had complained, did not attempt to single Mr. Inman out as
the one who had complained, and said nothing derogatory about Mr. Inman
(Tr. 65-66). As a matter of fact, Mr. Vernon made no inquiries of the
inspectors as to who may have complained to them, and Mr. Jackson
stated that Mr. Vernon said nothing which would lead Mr. Jackson to
believe that Mr. Vernon suspected Mr. Inman as being the one who complained (Tr. 66).
With regard to the conversation between Mr. Vernon and Mr. Jackson
concerning the identity of Mr. Jackson's father and his place of residence, I cannot conclude that Mr. Vernon had some devious motive in
making the inquiry or that he was in some way attempting to learn who
had complained. I find Mr. Vernon's explanation to be cre~ible and
plausible and find nothing in the record to support a conclusion or
an inference that he was in any way attempting to learn the identity
of the complainants. As for Mr. Vernon's 11 8.0.B. 11 comments, when
vl.ewed in context, I believe and co.nclude from the testimony of the
witnesses who testified on this comment that it was an "off-the-cuff"
remark made by Mr. Vernon which the employees took as such. There is
nothing to suggest that Mr. Vernon threatened anyone or made any
searching inquiries of the employees in an attempt to learn who may
have complained. It seems to me that if Mr. Vernon believf!d that
Mr. Inman or Mr. Hinkle had complained, he would have confronted
them and asked them about it. As for Mr. Vernon's conversation with
Mr. Hammond, both denied under oath that they had any discussion
about who may have complained, and since Hr. Hammond and the comp]
ants were on friendly terms, I find nothing in the record to
su
rt any inferences or conclusions that Mr. Hammond had anything

1107

to gain by telling Mr. Vernon who may have complained. Although
Mr. Ham.~ond refused to discuss the matter with Mr. Inman or his
attorney before the hearing, and purportedly made a comment that he
did not want to jeopardize his employment with the respondent, these
events transpired after the fact, that is, after the termination of
the complainants. ·Further, Mr. Hammond was cross-examined by complainants' counsel at the hearing, and I find his testimony to be
consistent and credible.
Mr. Vernon was initially employed by the respondent on approximately August 14, 1978, as an equipment operator, and in October was
appointed as a foreman. He terminated his employment with the respondent on January 3, 1979, and at that time was the assistant mine foreman. As foreman, his duties included assigning personnel to various
job tasks, insuring that the employees were at work on time, and insuring that the equipment was in good working order (Tr. 213-214). For
a brief period of time before he assumed a supervisory role, he and
the complainants were fellow equipment operators, worked together,
and apparently enjoyed a good working relationship. In his capacity
of assistant mine foreman, his duties included the making of performance evaluations of the employees, and in this capacity he maintained
certain company personnel records and documented the work performance
of th~ employees, including the complainants which he produced (Exhs.
R-3, R-4).
Mr, Vernon testified as to certain entries that he made on the
company personnel records with regard to Mr. Hinkle during the period
November 7, 1978, through November 30 1978 (Exh. R-3). On November 7,
1978, he noted that Mr. Hinkle was a "fair loader operator who tries
to do the best he can." Subsequent entries made on November 14, 16,
and 18, reflect that Mr. Hinkle "laid pan on its side," "gets too
excited, cowboy's his machine," "not working out, does not listen to
instructions." On August 25, the records reflect "laid him off due
to lack of work and poor performance," and on November 30 there is
a notation 11 came in to pick up his check. Threatened bodily harm.
No witnesses."
Mr. Inman's personnel record for the period October 23, 1978, to
November 25, 1978, contained entries made by Mr. Vernon indica:ttng
that he was a good loader operator, did anything he was told, but
"complains and needs to improve." A notation for November 7, 1978,
reflects that Mr. Vernon talked to him "about moving a little faster."
On November 9, Mr. Inman was given a pay increase to $6.50 an hour,
and on November 13, he was reassigned to another piece of equipment
because of "poor work," and on November 14, he was given a "few days
off" because the "560 is out of service." The final entry for
November 25, 1978, refle,cts that he was "laid off for lack of work
and poor performance."
In addition to the personnel entries which he made, Mr. Vernon
characterized Hr. Hinkle as an unsafe equipment operator, and stated

1108

Distribution
William K. Bodell, II, Esq.
Attorney for Island Creek Coal Company
2355 Harrodsburg Road
P.O. Box 11430
Lexington, KY 40575
Stephen P. Kramer, Trial Attorney
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Joyce A. Hanula, Legal Assistant
United Mine Workers of America
900 - 15th Street, N.W.
Washington, D.C. 20005

1109

that he operated his machine too fast and would not listen to
instructions (Tr. 226). As for Mr. Inman, Mr. Vernon stated that he
was 11 afraid of his machine"· and that based on his performance in the
operation of his machine, he believed that Mr. Inman did not know all
of the "ins and outs of the machine" (Tr. 226).
In explaining his reasons for terminating the complainants,
Mr. Vernon testified that after the defective equipment was taken out
of service, a total of four pieces of equipment were out of service,
since two additional rental machines would be lost the following week.
Faced with a surplus of three employees, he contended that he made an
evaluation of the performance of all of his workforce as to who could
operate the equipment in the best, efficient, and safest manner and
that seniority had nothing to do with his decision to terminate the
complainants (Tr. 226-227). In these circumstances, while it may be
true that the usual practice in the mines is to assign employees to
other chores when equipment is down, I cannot conclude that the Act
requires an operator to make such an accommodation for its employees,
nor can I conclude from the evidence presented, that respondent discriminated against Mr. Inman or Mr. Hinkle by not assigning them to
other tasks, while at the same time treating other employees similarly situated any differently. Absent any contractual obligations
or agreements to the contrary, I believe that the assignment of personnel is a matter within the discretion and judgment of an employer
and not the employee. Further, I cannot conclude that the complainants have established that they were qualified mechanics; and even
if they were, I cannot conclude that respondent was undt~r any obU.gation to retain them as mechanics for the purpose of repairing the
equipment which had been taken out of service.
Shortly after their termination, the complainants filed a complaint with MSHA, and in connection therewith, executed a written
statement (Exh. R-2). In that statem~mt, no mention is made about
Mr. Vernon's alleged co;nments that he considered Mr. Inman to be a
"troublemaker" a.nd that he "didn't like his act." At the hearing,
Mr. Inman testified that Mr. Vernon had. made these statements to
him at the time he informed him of his termination, and Mr. Hinkle
used the same phrases i.n testify:i.ng as to what Mr. Vernon purportedly said to Mr. Inman. When asked why he had not included
these statements attributed to Mr. Vernon in his original written
complaint, Mr. Inman answered as follows (Tr. 178):
Whether I had forgotten it at the time?
This has been so long ago.

I don't know.

I had been going over and over and trying to remember
everything Don had said, about everything that was said in
that office that morning. Whether it was in here or not,
I don't know. Evidently, I had forgotten to put it in.

1110

But there's a lot of things you remember after you
think about it.
During his testimony at the hearing, Mr. Hinkle testified that at
the time Mr. Vernon advised them that they were being terminated, he
said 11 Well, I'm going to let you guys off because you know that the
mine inspectors cOm.e in here and shut the pans down and you know they
come in there,*** (Tr. 193). Yet, Mr. Hinkle failed to include
this in the written complaint. Thus, viewed in perspective, both of
the complainants failed to include in their original written complaint·,
statements attributed to the mine foreman which go to the very heart
of their present assertion that he was motivated to terminate them
because they had complained to a State mine inspector.
With respect to. the prior MSHA inquiry concerning ti1e complaint,
it was disclosed during the hearing that Mr. Vernon had made a previous statement to an MSHA investigator in which he indicated that he
terminated the complainants for lack of work and poor performance (Tr.
2l~9).
Although a copy of his previous statement was .Produced and
examined and used by complainants' counsel during cross-examination,
counsel decided not to introduce it for the record (Tr. 253). And,
altho~gh the MSHA inspector was present in the courtroom in response
to a subpoena, complainants' counsel decided not to call him as a
witness (Tr. 271). Thus, from the record adduced in this proceeding,
I conclude that Mr. Vernon has been consistent in his testimony as
to why he terminated the employees, and as for his own departure as
an employee, he indicated that he quit because he was not making
enough money (Tr. 269), and denied that Im has been offered reemploy··
ment with the respondent or that the respondent was going to help
him obtain other employment (Tr. 255). Thus, when viewed in perspective, I cannot conclude that Mr. Vernon had anything to gain by
coloring his testimony· or concealing the fact that he did, in fact,
terminate the complainants because of their complaints to the State
inspectors. Further, after viewing Mr. Vernon on the stand, I find
him to be a credible witness .md his testimony is consistent with the
personnel evaluations and notations made by him with respect to the
complainants' work performance. For example, one of the notations
that he made was that Mr. Hinkle had threatened him on November 30
when.he came to the mine to pick up his pay check. Mr. Hinkle
candidly admitted that he "would get" Mr. Vernon (Tr. 201-202).
Having viewed the witnesses on the stand, and after careful
evaluation of all of the testimony, I cannot conclude that the complainants have established through a preponderance of the evidence
that respondent discriminated against them for exercising their
rights under the Act to bring to the attention of State mine officials certain unsafe mine practices. It is clear that these rights
are protected under the Act. However, the burden of proof lies with
the complainants. I find and conclude that they have not carried
their burdens and have not established that their termination was

1111

prompted by their protected activities. To the contrary, I find and
conclude that respondent has established through credible and probative evidence that the termination of the complainants was based on
a lack of work and a management judgment that a reduction in personnel -was necessary. In the exercise of that judgment, I am not convinced that the respondent acted out of any retaliat:i.on aga:i.nst the
complainants for reasons connected with the:i.r protected activities.
I believe that in the final analysis, and after their termination,
complainants speculated that on the day of the inspection by the
State mine inspectors, Mr. Hammond informed Mr. Vernon that they had
complained, and that Mr. Vernon retaliated by firing them (Tr. 207).
As a result of this speculation, they shortly thereafter again contacted Mr. Jackson, who, in turn, arranged for·an interview with an
MSHA investigator. Upon investigation, MSHA obviously believed that
the discrimination complaint was not well-grounded since MSHA found
no discrimination and dismissed the complaint after finding that the
complainants' safety compl~dnts were not a contributing factor to
their termination by the respondent.
ORDER
In viP.w of the forego:i.ng findings and conclusions, I conclude and
find that respondent's decision to terminate the complainants w~s not
m~tivated by respondent's attempts to di.scriininate against them for
protected mine safety activities. Accordingly, the complaints are
DIS.HISSED, and the relief requested is DENIED .

.<21~,4/t~· tffi(/
~,
tf!JvUXl

. , ."

~

•

r

. _orge . Koutr s
Administrative Law Judge

Distribution:
William Safranek, Esq., Box 402, McConnelsville, OH 43756
(Certified Mail)
Robert H. Albert, Esq., Kagay, Albert & Diehl, 849 Harmon
Avenue, Columbus, OH 43223 (Certified Mail)
Randy Inman, Route 1, Box 201, Crooksville, OH 43731
(Certified Mail)
Kenny Hinkle, Route 1, Box 282, Crooksville, OH 43731
(Certified Mail)
Thomas P. Piliero, Trial Attorney, U.S. Department of Labor,
Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA
22203
Standard Distribution

1112

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMltolSTRATIVE I.AW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

·'

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

Civil Penalty Proceeding
Docket No. DENV 78-414-P
A/O No. 42-00098-02025V

v.
King Mine
U.S. FUEL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT AND
ORDERING PAYMENT OF CIVIL PENALTY;
ORDER DENYING MOTION TO AMEND
CAPTION AND ORDER GRANTING MOTION
TO AMEND TITLE OF JOINT
MOTION AND STIPULATION
Appearances:

James Abrams, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Richard H. Nebeker, Esq., Callister, Greene & Nebeker,
Salt Lake City, Utah, for Respondent.

Before:

Judge Cook

I.

Procedural Background

·on May 5, 1978, the Mine Safety and Health Administration (MSHA)
filed a petition for assessment of civil penalty against U.S. Fuel
Company (Respondent) in the above-captioned proceeding. The petition,
filed pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U. S.C. § 820(a) (Act), alleged violations of 30 CFR
§§ 75.200 and 75.400. The Respondent filed its answer on June 7,
1978.
A notice of hearing was issued on July 10, 1978, setting a hearing date of September 12, 1978. Such date was later changed as a
result of a motion for continuance. On November 6, 1978, an order
was issued canceling the hearing and continuing the proceeding indefinitely in response to a communication indicating that a settlement
had been reached.
On January 24, 1979, MSHA filed a "motion to approve settlement
and to dismiss." This motion was denied by an order issued on
January 31, 1979. Notices were issued setting May 10, 1979, as the
hearing date.

1113

On April 30, 1979, the Secretary of Labor moved to amend the
caption, and the parties filed a "stipulation and joint motion to
withdraw petition for assessment of civil penalty and for dismissal."
On May 2, 1979, a telephone conference was held during which the· ·
undersigned Administrative Law Judge and counsel for the parties
participated. The parties agreed to obtain certain further information to supplement the April 30, 1979, stipulation and motion to
approve settlement. Accordingly, an order was issued on May 10,
1979, continuing the proceeding indefinitely.
The supplemental information was submitted in the form of a
stipulation and joint motion on August 14, 1979, in conjunction
with a "motion to amend title of joint motion and stipulation."
Rulings on the three pending motions are contained herein.
II.

Motion to Amend Caption

In support of his motion to amend the caption, the Secretary of
Labor states the following: "Secretary of Labor moves to amend the ·
caption of the pleadings in this case to reflect that Ray Marshall,
Secretary of Labor, United States Department of Labor, is the petitioner, rather than Secretary of L~bor, Mine Safety and Health
Administration."
On April 18, 1978, it was determined by the Chief Administrative
Law Judge of the Federal Mine Safety and Health Review Commission
(Commission) that the captions in civil penalty proceedings before
tbis Commission would be in the format as set forth in the present
caption to this proceeding.
Accordingly, the motion to amend the caption will be denied.
III.

Motion to Amend Title of Joint Motion and Stipulation
The motion states, in part, as follows:
Petitioner moves, by and through his attorney, pursuant to 29 C.F.R. 2700.13 to amend a pleading entitled
"Stipulation and Joint Motion.to Withdraw Petition For
Assessment of Civil Penalty and for Dismissal" attached
hereto as Exhibit A to "Stipulation of Settlement and
Joint Motion to Approve Settlement Agreement."
In support of his motion, petitioner states this is
necessary to properly describe: (1) the actions of the
parties, and (2) the instrument upon which relief may be
properly granted by the Commission.
Petitioner has been authorized by counsel for respondent to state this motion will not be opposed.

1114

Accordingly, the motion will be granted, and the above-noted
motion, filed on April 30, 1979, will be amended to read "Stipulation
of Settlement and Joint Motion to Approve Settlement Agreement."
IV.

Approval of Se.ttlement

As relates to the proposed settlement, information as to the
six statutory criteria contained in section 110 of the Act has been
submitted. This information has provided a full disclosure of the
nature of the settlement and the basis for the original determination.
Thus, the parties have complied with the inten~ of the law that
settlement be a matter of public record.
'fhe settlement figure for the alleged violations is $1,500.
assessment for thi alleged violations was $3,600.

The

The alleged violations and the settlement are identified as
follows:
Order No.
7-0107 (1 LJG)
7-0108 ( 2 LJG)

Date

30 CFR
Standard

Assessment

04/18/77
04/18/77

75.400
75.200

$1,800
1,800

Settlement
$

300
1,200

As justifications for the proposed settlement, the parties state,
in part, as follows:
1. Section 104(c)(l) Order No. 1 LJG (sic), 4/18/77,
30 CFR 75.400 originally assessed for $1,800.00 to be
settled for $300.00.
Gravity, Negligence and Good Faith.
In this case float coal dust was allowed to accummulate on rock dusted surfaces in the 7 North Section for
approximately 368 feet. Also, wet loose coal and coal
dust were allowed to accumulate from the loading point
inby the entries and crosscuts of the 7 North Section for
a distance of approximately 2,650 feet and these accumulations ranged in depth from approximately 4 to 18 inches.
While loose coal could burn if ignited or float coal
could propagate an explosion if one were to begin,
moisture in the area decreased the likelihood of such
an occurrence and so its gravity.
Roadways were wet and there were several areas where
water had been pumped out the day prior to the citation,
thereby significantly reducing probability of a mishap.

1115

Additionally, methane gas has not been detected in the
King Mine by the Secretary's duly authorized representative. There has not been an explosion or fire caused by
methane gas in this mine. On April 18, 1977, the day the
citation was issued, the section was not working. Marion
Bingham, the construction foreman, had been sent to the
7 North Section with the large rock duster to rock dust
the section.
Although the float coal dust and the.accumulations
behind the line curtain in the first left entry were dry
(see Exhibit "A"), that entry constituted only 90 feet
of the total accumulations. The rest of t'he accumulations
of loose coal and fines contained moisture. This fact
diminished the probability of a fire. Further, the probability of an explosion which could be propagated by the
accumulations of float coal dust was diminished by the
fact that no accumulation of methane was measured.
On April 18, 1977, the inspector did not c,ite any
conditions and/or violations which could serve as a
potential ignition source; similarly, no electrical
defects were cited. Although the possible consequences
of the violation could be serious, the probability of
those consequences occurring (i.e., a fire and/or an
explosion) was measurably reduced by the above conditions.
The accumulations had been observed, and the construction foreman was preparing the rock duster for
operation in the section when the violation was cited.
It is stated that the citation was the result of the
operator's ordinary negligence.
The operator rapidly undertook the process of rock
dusting the section and abated the violation by rock
dusting the float coal dust and by loading out the loose
coal and coal fines and then rock dusting the cleaned
areas. It is stated that the operator exhibited good
faith in attempting to rapidly correct the violation.
The original assessed penalty was amended to $300.00
by the Office of Assessments as per Exhibit "D" attached
hereto.
Previous History.
During the 24 months prior to the subject violation,
388 violations were assessed at the King Mine (see
Exhibit "B"). From the inception of the Federal Coal
Mine Health and Safety Act of 1969 to the date of the

1116

subject violation, the operator's. total history of previous paid violations was 872 (see Exhibit "C"). This
is an average of approximately 116 violations per year
up to the date of the subject violation. Of these violations 72 or approximately 8.3 % were violations of
30 CFR 75.400. This does not indicate an habitual disregard for the mandates of the standard on the operator's
part.
2. Section 104(c)(l) Order No. 2 LJd (sic), 4/18/77,
30 CFR 75.200 originally assessed for $1,800.00 to be
settled for $1,200.00.
Gravity, Negligence and Good Faith.
On April 18, 1977, an MSHA inspector found that the
roof at four locations in 7 North Section was loose and
it had not been taken down or supported. The areas
involved were three crosscuts between actively used
entries and a proposed intake entry. Miners could have
accessed the area in question and been exposed to serious
injury or death. The area was not being actively worked.
However, a warning sign of the danger was posted. A fall
had occurred in the proposed intake entry (Exhibit "A").
The poor roof condition had been entered in the
preshift books on April 7, eleven days before the subject
violation was cited evidencing operator negligence. The
only corrective action which had been taken was to post
signs warning of the "Bad Topu (see the Order and Exhibit
"B") •

The violation was abated through the installation of
roof bolts in the four areas. It is stated that the
operator exhibited good faith in attempting to rapidly
correct the violation.
Previous History.
During the 24 months prior to the subject violation,
388 violations were assessed at the King Mine (see
Exhibit "B"). From the inception of the Federal Coal
Mine Health and Safety Act of 1969 to the date of the
subject violation, the operator's total history of paid
violations was 872 (see Exhibit "C"). This is an average
of approximately 116 violations per year. Of these violations, 24 or approximately 2.7 % were violations of
30 CFR 75.200. This is not such an amount to indicate
an habitual disregard for the mandates of the standard
on the operator's part.

1117

Size.
Unites States Fuel Company operates two mines: King
Mine (I.D. No. 42-00098) and King No. 5 Mine (I.D. No.
42-01389). During 1976 and 1977, the King Mine produced
approximately 614,941 and 882,455 tons of bituminous coal,
respectively. During those same years, the King No. 5 Mine
produced no coal and 5,000 tons (see (Exhibit "E").
The King Mine has four active sections and employs
approximately 227 miners. Three production shifts are
worke.d during a 24-hour period (see Exhibit "F").
Settlement Amounts.
With reference to Order No. 1 LJG, 4/18/77, 30 CFR
75.400, there was a low probability of an actual fire
and/or explosion occurring as a result of the violation
due to the lack of a probable ignition source, the wet
nature of a majority of the coal and coal fines accumulations and the fact that no methane was determined by
measurement.
The settlement of $300.00 represents the second
highest amount the operator will have paid for a violation of 30 CFR 75.400 cited prior to April 18, 1977,
the highe~t being for a violation of 30 CFR 75.400 cited
in conjunction with an imminent danger order (see
Exhibit "C").
With reference to Order No. 2 LJG; 4/18/77, 30 CFR
75.200, the proposed payment is almost five times as
much as any payment made for a violation of 30 CFR 75.200.
There was a lack of due diligence on the operator's part
in correcting the poor roof conditions, and the chance of
severe injury or death existed even though the area was
posted with signs warning of the bad top. A deficiency
inherent in the Order has also commenced a penalty reduction, namely the failure to describe with particularity
the nature of the violative condition.
The above amounts will not affect the operator's
ability to continue in business.
The Stipulation of Settlement and Joint Motion to approve Settlement Agreement was signed by the President of Local 6363, UMWA
District 22 as representative of employees as well as the attorneys
for both parties.

1118

Exhibit "D" submitted on August 14, 1979, consists of a letter
dated June 22, 1979, from Madison McCulloch, MSHA Director of Assessments, to James L. Abrams; Esq., counsel for MSHA. The letter states,
in part, as follows:
This is to advise that on or about January 12, 1978,
the captioned case was reviewed by the assessment office.
Because it would have been difficult to establish a valid
104(c)(l) (now 104(d)(l)) notice to uphold the unwarrantable chain, a recommendation was made by this office to
accept $300 and $1,200 respectively for violations in
issue.
In view of the reasons given above by counsel for the parties
for the proposed settlement, and in view of the disclosure as to the
elements constituting the foundation for the statutory criteria, it
appears that a disposition approving the settlement will adequately
protect the public interest.
Of particular significance to the approval of the settlement, is
the above-noted letter from the MSHA Director of Assessments.
ORDER
Accordingly, IT IS ORDERED that the Secretary of Labor's motion
to amend the caption be, and hereby is, DENIED.
IT IS FURTHER ORDERED that the Petitioner's motion to amend the
title of the joint motion and stipulation be, and hereby is, GRANTED.
IT IS THEREFORE ORDERED that such joint motion be, and hereby is,
AMENDED to read "Stipulation of Settlement and Joint Motion to
Approve Settlement Agreement."
\

IT IS FURTHER ORDERED that the proposed settlement, as outlined
above, be, and hereby is, APPROVED. IT IS THEREFORE ORDERED that
Respondent, within 30 days of the date of this decision, pay the
agreed-upon penalty of $1,500 assessed in this proceeding.

~~

ohn F. Cook

1119

Distribution:
James Abrams, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Richard H. Nebeker, Esq., Callister, Greene & Nebeker,
800 Kennecott Building, Salt Lake City, UT 84133
(Certified Mail)
Administrator for Coal Mirie Safety and Health, U.S. Department
of Labor
Standard Distribution

1120

SAfETY ANO t>-H::AlT~ REV~EW COMMiS5mN
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. BARB 78-655-P
A.C. No. 15-02709-02056 V
Camp No. 1 Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Gregory E. Conrad, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Thomas J. Frawley, Esq., Kohn, Shands, Elbert,
Gianoulakis & Giljum, St. Louis, Missouri, for
Respondent.

Before:

Judge Cook

I.

Procedural Background

On August 24, 1978, the Mine Safety and Health Administration
(MSHA) filed a petition for assessment of civil penalty pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C § 820(a) (1977), in the above-captioned proceeding. The
petition alleged violations of 30 CFR 75.200 and 75.400. On
October 2, 1978, Peabody filed an answer in conjunction with a
motion to file a later answer, which motion was granted by an order
dated October 13, 1978.
By order of October 16, 1978, the above-captioned case was consolidated with Docket Nos. BARB 78-.6, 78-688-P, 78-690-P and 78-613-P
and a notice of hearing was issued. However, Respondent filed
a motion on October 25, 1978, wherein it requested that the abovecaptioned case be severed, requesting a separate hearing. This motion
was granted by an order dated November 6, 1978.
The hearing commenced on December 12, 1978.
both parties were present and participated.

1121

Representatives of

At the conclusion of the hearing, counsel for MSHA and counsel
for the Respondent agreed that the hearing transcript could be mailed
by the reporter by January 11, 1979. Counsel further agreed that the
initial briefs would be filed simultaneously by February 19, 1979.
On February 12, 1979, Respondent requested additional time until
March 9, 1979, to file its initial brief. By an order dated
February 13, 1979, the time for the filing of original posthearing
briefs and any other proposals by way of findings of fact and
conclusions of law was extended to March 9, 1979. The time for
response was extended to March 23, 1979.
The Petitioner filed its posthearing brief on March 9, 1979. The
Respondent filed its posthearing brief on March 12, 1979. The Petitioner and the Respondent filed reply briefs on March 23, 1979, and
March 29, 1979, respectively.
II.

Violations Charged
Order No. 7-0565 ( 1 MEM), November 21, 1977' 30 CFR 75.400.
Order No. 7-0563 (1 LWS), November 21, 1977, 30 CFR 75.400.
Order No. 7-0583 (1 LWS), December 1, 1977, 30 CFR 75.200.

III.

Evidence Contained in the Record
A.

Stipulations

At the commencement of the hearing, counsel for both parties
entered into stipulations which are set forth in the findings of fact,
infra.
B.

Witnesses

MSHA called as its witnesses Mitchell E. Mills, an MSHA coal mine
supervising inspector, and Louis w. Stanley, an MSHA inspector.
Respondent called as its witnesses Brent W. Roberts and Martin T.
Lovell, safety managers at Respondent's Camp No. 1 Mine, and Jack Dan
Matheson III, a belt foreman at Respondent's Camp No. 1 Mine.

c.

Exhibits

1.

MSHA introduced the following exhibits into evidence:

(a) M-1 is computer printout titled "Controller Information
Report" compiled by the Office of Assessments containing information
as tp ~he size of the operator.

1122

(b) M-2 is a computer printout compiled by the Office of
Assessments containing the operator's history of violations for which
assessments had been paid up to December 1 1 1977.
(c)

M-3 is a map of Respondent's Camp No. 1 Mine.

(d) M-4 is a copy of Order No. 7-0565 (1 MEM), November 21,
1977 1 30 CFR 75.400.
(e)

M-5 is a modification of M-4.

(f)

M-6 is an abatement of M-4 and M-5.

(g)

M-8 is the 104(c)(l) order underlying M-4, M-10 and

(h)

M-9 is the 104"(c)(l) notice underlying M-8.

M-13.

(i) M-10 is a copy of Order No. 7-0563 (1 LWS), November 21 1
1977 1 30 CFR 75.400.
(j)

M-11 is a termination of M-10.

(k) M-13 is a copy of Order No. 7-0583 (1 LWS), December 1 1
1977 1 30 CFR 75.200.
(1)

M-14 is a termination of M-13.

(m) M-16 is a drawing produced by Inspector Louis W.
Stanley depicting his recollection of the conditions cited in M-13.

(n) M-17 is a copy of the cleanup program for the Respondent's Camp No. 1 Mine.
(o) M-19 is an entry from the preshift examiner's report
for the No. 3 Unit, dated November 25 1 1977.
(p) M-20 is a preshift examiner's report for the No. 3
Unit, dated November 27 1 1977 1 10 to 11 p.m.
(q) M-21 is a preshift examiner's report.for the No. 3
Unit, dated November 30 1 1977.

(r) M-22 is a preshift examiner's report for the No. 3
Unit, dated December 1 1 1977.
(s) M-23 is an entry from the belt examiner's book dated
November 17 1 1977.

(t) M-24 is an entry from the belt examiner's book dated
November 18 1 1977.

1123

(u) M-25 is an entry from· the belt examiner's book dated
November 18, 1977.
(v) M-40 is a copy of the roof control plan for the Camp
No. 1 Mine, dated August 5, 1977.
2.

Peabody introduced the following exhibits into evidence:

(a) 0-2 is tr~ belt examiner's book· for the Camp No. 1 Mine,
beginning with entries for October 6, 1977.
(b) 0-3 is the preshift examiner's book for the Respondent's Camp No. 1 Mine.
(c) 0-4 is a copy of the roof control plan for the Camp
No. 1 Mine, dated April 6, 1976.
(d) 0-5 is a drawing produced at t4e hearing by Martin T.
Lovell depicting his recollection of the conditions cited in M-13.
IV.

Issues

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount
should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should be
assessed for a violation, the law requires that six factors be considered: (1) history of previous violations, (2) appropriateness of
the penalty to the size of the operator's business; (3) whether the
operator was negligent; (4) effect of the penalty on the operator's
ability to continue in business; (5) gravity of the violation; and
(6) the operator's good faith in attempting rapid abatement of the
violation.
V.

Opinion and Findings of Fact
A.

Stipulations

1. The Administrative Law Judge has jurisdiction over the subject matter in this proceeding (Tr. ·7).
2. Peabody Coal Company and the Camp No. 1 Mine are subject to
the provisions of the Federal Coal Mine Health and Safety Act of 1969
(Tr. 7-8).
3. The subject orders of withdrawal were duly served on an
agent of the operator (Tr. 8)~

4. The assessment of any penalties in this proceeding will not
affect the ability of Respondent to continue in· business (Tr. 8).

1124

5. With respect to each of the alleged violations in this proceeding, Respondent, at a minimum, demonstrated good faith in
attempting to achieve normal compliance after notification of the
violations (Tr. 8).
6. Inspectors Louis W. Stanley and Mitchell E. Mills were duly
authorized representatives of the Secretary at all times relevant to
this proceeding (Tr. 8).
7. Each of the proposed exhibits to be submitted by Petitioner
and Respondent are authentic documents which were prepared in the
ordinary course of business by the person or persons designated
therein by their signature (Tr. 8).
8. For purposes of assessment of any penalties, Peabody is a
large operator (Tr. 8).
9. The Federal Coal Mine Health and Safety Act of 1969 has been
amended by the Federal Mine Safety and Health Act of 1977 (Tr. 9).
10. The Respondent is subject to the Federal Mine Safety and
Health Act of 1977 (Tr. 9).
11.

November 21, 1977, was a Monday (Tr. 77-78).

12. Inspector Stanley's order of November 21, 1977 (Exh. M-10),
gives sufficient notice of the alleged accumulation cited therein
(Tr. 175).
13. Peabody Holding Company, Inc., became the controller of
Peabody Coal Company, effective June 30, 1977 (Tr. 510-511).
B.

Occurrence, Gravity, Negligence, and Good Faith

1.

Order No. 7-0565 (1 MEM), November 21, 1977, 30 CFR 75.400
(a)

Occurrence of Violation

On Monday, November 21, 1977, MSHA supervisory inspector
Mitchell E. Mills visited the Respondent's Camp No. 1 Mine. He
arrived at 6:15 a.m. (Tr. 20-23). Inspector Mills noted that he
was accompanying MSHA inspector Louis W. Stanley on a supervisory
inspection and also because of information he had received regarding a problem with "dirty belts" at the Camp No. 1 Mine (Tr. 20-22,
115). While on the surface, Inspector Mills consulted with management personnel and persons from the United Mine Workers of
Americia, while Inspector Stanfey examined the preshift reports and
the belt examiner's reports (Tr. 23, 50-51). Inspector Mills'
knowledge of the information contained in those reports was acquired
from Inspector Stanley (Tr. 50-51, 147-150).
·

1125

Upon arriving underground, each inspector proceeded to a different area of the mine to begin his inspection. Inspector Mills
inspected the area of the Third Main South belt, also called the
Second South piggy-back belt (Tr. 239-240, 317). Ken liazelwood and
Brent Roberts accompanied him on the inspection tour (Tr. 29-30).
He commenced his· inspection at the tailpiece and ended his inspection at the header, walking the entire 3,500-foot length of the
belt (Tr. 25, 73). The No. 7 Unit was moving, but the belt was
not in operation and no coal production was occurring inby either
the tailpiece or the header (Tr. 74-76, 98, 133~134, 240-243).
He observed readily noticeable accumulations of combustible material at two locations along the belt (Tr. 38, 44-45, 107). He measured
the length and depth of the accumulations with a steel rule, with the
assistance of either Mr. Hazelwood or Mr. Roberts (Tr. 45-46).
The first accumulation was observed at the old No. 7 Unit belt
drive (Tr. 38, Exh. M-4, Point Eon Exh. M-3). It consisted of loose
coal and coal dust 16 to 24 inches in depth and 60 feet in length. He
recalled from memory that it was 10 to 12 feet wide (Tr. 44, 74, 124).
The depth of the accumulation indicated to the inspector that it had
existed for approximately two shifts (Tr. 96).
The second accumulation was located in the middle of an intersection, one crosscut outby No. 3 Unit's intake overcast (Tr. 25-26, 89,
Exh. M-4, Point Con Exh. M-3). The accumulation was 20 inches in
depth and 20 feet in length. He recalled from memory that it was
approximately 2 feet wide (Tr. 45, 74, 125, Exh. M-4). It consisted
of approximately 80 percent coal, both fine and lump, and 20 percent
rock (Tr. 45, 86-87, 114-115, 11&). The inspector estimated that
the accumulation had existed for approximately 2 weeks (Tr. 60, 96).
The inspector's opinion as to both the cause of the accumulation and
the duration of its existence was based upon a common set of observations. He testified that the belt had been running out of alignment
as the result of a rock fall (Tr. 40-48). Thus, the top belt had been
running to the right and the bottom belt had been running to the left.
The top belt had been rubbing against the upright belt stand, while
the bottom belt had been rubbing the rock and the coal (Tr. 87-88).
The to-p belt was worn from rubbing against the stand, and, in fact,
had rubbed halfway through a 2-inch· pipe that was part of the belt
stand. The bottom belt had rubbed through a piece of coal or rock.
The belt was dragging the bottom and the bottom rollers were buried.
It was the inspector's opinion that it would have required approximately 2 weeks for these conditions to develop (Tr. 57-60, 87-88,
99). Misalignment of the belt and slippage caused the spillage
·(Tr. 40-48, 62-63). This interpretation of inferences drawn from
the facts was based on the inspector's experience in deal{ng
with belts (Tr. 123).

1126

Inspector Mills testified that he specifically asked Messrs.
Hazelwood and Roberts if they thought the accumulations of coal
were excessive) and that one or both of them responded in the
affirmative (Tr. 43-44).
Inspector Mills identified Exhibit M-17 as containing the · '''!anup
program in effect. at the Respondent's Camp No. 1 Mine on November 21)
1977. The cleanup program) dated February 25) 1972) states:
The places are cleaned by 14BU10-llBE loading
machine •
.The ribs are hand shovelled.
The float dust and coal spillage is shovelled by hand
on all belt haulage.
This work is being done by both coal run shifts.
Inspector Mills discussed the Respondent's cleanup program (Exh.
M-17) at two points in his testimony. During direct examination) he
testified that his observations caused him to conclude that the
cleanup plan (Exh. M-17) was not being followed) especially with
regard to the accumulation located one crosscut outby the No. 3 Unit
overcast. He testified that the plan requires float dust and coal
spillage to be shoveled by hand on all belt haulage during the coal
run shifts (Tr. 61-62). The inspector set forth a more detailed
interpretation of the cleanup plan during the course of examination
by the Judge. He testified that the plan mandates daily inspection
and reporting) in addition to systematic daily cleaning so that the
belt remains clean at all times (Tr. 126-127).
The inspector had no actual knowledge of whether cleaning had
occurred in the area of the No. 3 Unit.intake overcast on November 17)
1977) or November 18) 1977 (Tr. 83-84). He never asked anyone whether
any cleaning had been done i11 the area (Tr. 120). He did not recall
discussing with either Mr. Roberts or Mr. Hazelwood their plans for
cleaning the belt (Tr. 122). In addition) he did not ask anyone at
the :mine whether they intended to start the belt prior to cleanup
(Tr. 122).
Inspector Mills issued the subject 104(c)(2) order of withdrawal
at 10:30 a.m., November 21) 1977 (Exh. M-4)) citing the Respondent for
a violation of the mandatory safety standard set forth in 30 CFR
75.400. This section of the Code of Federal Regulations states the
following: "Coal dust, including float coal dust "deposited on rockdusted surfaces, loose coal and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active workings,
or upon electric equipment therein."
30 CFR 75 .2(g)( 4) defines "active workings" as "any place in a
coal mine where miners are normall)'.' required to work or travel."

1127

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 qsHD
par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196,
1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations
Appeals (Board) held that the presence of a deposit or accumulation
of coal dust on other combustible materials in active workings
of a coal mine is not, by itself, a violation. The Board held
that MSHA's prima facie case consists of the following three
elements:
1.

that an accumulation of combustible material existed
in the active workings, or on electrical equipment in
active workings, of a coal mine;

2.

that the coal mine operator was aware; or, by the
exercise of due diligence and concern for the safety
of the miners, should have been aware of the existence
of such accumulation; and

3.

that the operator failed to clean up such accumulation,
or failed to undertake to clean it up, within a reasonable time after discovery, o~ within a reasonable time
after discovery should have been made.

8 IBMA at 114-115.
There can be no doubt that accumulations of combustible materials existed in the active workings of the Respondent's Camp No. 1
Mine at the two above-described locations along the Third Main South
belt. Accordingly, it is found that MSHA has established the first
element of its prima facie case. 1_/
1/ BotW with respect to order No. 1 MEM and order No. 1 LWS, Respondent asserts that Old Ben requires MSHA inspectors to "inquire of
Respondent's employees concerning the accumulations and their cleanup
efforts" (Respondent's Posthearing Brief, pp. 19-21, 27-28). Respondent argues that the finding of a violation of 30 CFR 75.400 is dependent upon the inspector determining, prior to issuing a withdrawal
order, when an accumulation should have been discovered and the nature
of the operator's cleanup efforts (Responde~t's Posthearing Brief,
p. 21). However, the Old Ben case does not require the inspector
to direct specific inquiries to the operator's employees in all cases.
The Board's Old Ben opinion merely requires the inspector to make a
sound judgment as to how long the accumulation existed and whether the
operator took an unreasonable amount of time in getting around to
to cleaning up the accumulation. This can be accomplished through
"the use of logical conclusions drawn from circumstantial evidence."
8 IBMA at 113. As the record in the present case reveals sufficient
evidence from which the inspectors could reach conclusions as to both
the duration of the accumulations' existence and the reasonable time
for cleanup, it was unnecessary to direct specific inquiries to the
Respondent's employees.

1128

The second element of MSHA's prima facie case, the requirement
that the operator have actual or constructive knowledge of the existence of the combustible accumulations, has generated some controversy among the parties, as evidenced through their ·posthearing
submissions. According to MSHA, the Old Ben decision addresses
itself to two distinct types of accumulations: "usual" and "unusual."
MSHA argues that· depending upon the type of accumulation present in
a given case, the operator's responsibilities and the legal prerequisites for MSHA's establishment of a prima·facie case differ
radically. MSHA takes the position that it must set forth affirmative evidence as to all three elements of its prima facie case only
where the accumulations are "unusual 11 in nature·. However, where
"usual" accumulations of combustible materials have resulted from
the ordinary course of the operator's mining activities, MSHA argues
that "the Board appears to infer" that no knowledge requirement is
present since it is "assumed" that the operator is aware of these
inevitable accumulations. In such cases, MSHA argues that it satisfies its burden under Old Ben when it proves that the operator was
not maintaining its regular cleanup program or that the cleanup program was deficient in that combustible materials were being permitted to accumulate without adequate attention to their cleanup
(Petitioner's Posthearing Brief, pp. 3-4).
The Respondent takes vigorous issue with MSHA's assertions
(Respondent's Reply Brief, pp. 1-2).
I disagree with MSHA's interpretation of Old Ben. The fact that
an accumulation is "usual" or "unusual" does not alter MSHA's burden
of going forward with the evidence. This is so because although the
Board discussed both "usual" and "unusual" accumulations in its decision, it di.d not distinguish between them when it set forth the elements of MSHA's prima facie,case. The fact that the three elements
are described as "the precise elements of proof required under * * *
30 CFR 75 .400 to make out a prima facie case * * *" further indicates
that no such distinction was intended. ~/
In effect', MSHA argues that a presumption exists that the operator knew or should have known of the accumulation's existence once it
has been established that the accumulation accrued during the ordinary
co~rse of the operator's mining activities, and that the operator's
2/ The question of whether an accumulation is "usual" or "unusual"
has greatest significance with respect to the issue of whether the
operator failed to clean up such accumulation, or failed to undertake to clean it up, within a reasonable time after discovery, or
within a reasonable time after· discovery should have been made, as
set forth in both the Board's decision of August 17, 1977, and its
subsequent memorandum opinion and order denying the Government's
motion for reconsideration. 8 IBMA 109-111; 8 IBMA 198.

1129

regular cleanup program was not being followed or was deficient in
some respect. However, the Board in Old Ben did not specifically set
forth such a presumption.
Although the Board did indicate that "[p]roof of the absence of
[a regular cleanup] program, together with the presence of any accumulation might well alone support a citation for violation of Section 304(a)," Old Ben Coal Company, 8 IBMA 196, 198, 1977-1978 OSHD
par. 22,328 (1977), Opinion and Order Denying Motion for Reconsideration of Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978
OSHD par. 22,088 (1977) (emphasis in original), this statement does
not strengthen the Petitioner's position in the case at bar. The
statement merely indicates that the operator might be held strictly
liable if he fails to maintain a regular cleanup program. In the
case at bar, the Respondent had a regular cleanup program (Exh. M-17).
Although Inspector Mills stated that the plan was not being followed
(Tr. 61), the Respondent took a position refuting this characterization by arguing that the Respondent was confronted with unusual circumstances in its efforts to clean the Third Main South belt
(Respondent's Reply Brief, pp. 2-3). It cannot be found that the
Board intended to impose a strict liability standard where the operator maintains a regular cleanup program, especially where the parties
have raised a genuine issue of material fact with respect to whether
the plan was being followed.
For the reasons set forth below, I find that the Respondent knew
or should have known of the existence of the combustible accumulations at the two locations along the Third Main South belt.
A substantial dispute has arisen between the parties with
respect to .the knowledge issue, particularly as regards the accumulation located in the intersection one crosscut outby the No. 3 Unit
intake overcast. The Petitioner relies most heavily on the inspector's estimate that the condition existed for approximately 2 weeks
in arguing that the Respondent both knew of the existence of the accumulation and failed to undertake cleanup procedures within a reasonable time after he knew or should have known of their existence.
The Respondent disagrees, relying upon its belt examiner's reports
(Exh. 0-2) to argue that the accumulations observed in the·area of
the No. 3 Unit overcast were systematically removed promptly upon
discovery.
I find the evidence adduced.by the Respondent sufficient to
rebut the inspector's estimate that the accumulation had existed
for approximately 2 weeks.

The inspector testified that running the belt while it was out of
alignment was a partial cause of the accumulation (Tr. 48, 62-63).
The belt had been knocked out of alignment by a roof fall occurring
one crosscut outby the No. 3 Unit's intake overcast, i.e., the roof
fall had occurred in the same location where the inspector observed

1130

the accumulation (Tr. 40-41, 45). The fall had pushed the belt
approximately 18 inches out of alignment (Tr. 65) causing it to rub
both the belt stand and the coal (Tr. 57-58, 60). According to the
inspector, either the area had not been cleaned after the fall or
another fall had occurred (Tr. 45). He estimated that the accumulation cited in the order of withdrawal had existed for approximately
2 weeks, noting that 2 weeks would have been required for the belt
stand to develop the amount of wear observed, and also to "make all
of the belt cut on the opposite side and to wear the rubber off"
(Tr. 60) (see also, Tr. 57-58).
Mr. Brent Roberts, the safety manager of the mine, was aware
that damage had been suffered by the Third Mairr South belt as the
result of a rock fall somewhere in the area of the No. 3 intake
overcast (Tr. 301). Although he had no idea as to when the roof
fall had occurred, he indicated that it had to have been quite a
while before November 21, 1977 (Tr. 301). He indicated that the area
had been cleaned after the fall, but that apparently more rock had
fallen in, either as the result of a second roof fall or as the
result of rock sliding into the side of the belt (Tr •. 301). However.
he did not know the date of the second occurrence (Tr. 301-302).
Additionally, the inspector testified that the operator was aware
of the existence of these accumulations because of entries in the preshift examiner's books (Tr. 50-51). At the Camp No. 1 Mine, the operator has both a preshift examiner who makes the active coal production
units and a belt examiner who makes the belt on each coal production
shift (Tr. 51). The belt examiner makes entries in a belt examiner's
book located outside the mine (Tr. 51). According to the inspector,
the accumulations were noticeable, and anyone making an adequate pr~
shift examination in the area would have noticed them (Tr. 107-108).
Although there are substantial indications that the information
relayed to Inspector Mills by Inspector Stanley as to entries contained in the belt examiner's book pertained to the Second Main South
belt, and not to the Third Main South belt (Respondent's Posthearing
Brief, pp. 20-21), the error has no bearing on the operator's actual
or constructive knowledge of the accumulations' presence. The belt
examiner's book (Exh. 0-2) indicates that the Respondent was aware of
spil~ages in the area of the No. 3 overcast.
The belt examiner's
reports for each of the following days and shifts indicate a problem
with coal spillage in the area of the No. 3 overcast: second shift,
November 17, 1977 (Exh. 0-2, Tr. 80, 252-253, 329); second shift,
November 18, 1977 (Exh. 0-2, Tr. 84, 252, 327-328); second shift,
November 19, 1977 (Exh. 0-2, Tr. 251-252). Although, as a result of
the information contained in Exhibit 0-2, the Respondent assigned men
to clean the area on the November 18, 1977, and November 19, 1977, day
shifts (Tr. 328-329), there is no indication that cleanup personnel
were assigned to the area on the November 19, 1977, second shift.

1131

The foregoing evidence is sufficient to rebut the inspector's
opinion that the accumulation in the area of the No. 3 overcast had
existed for 2 weeks. There is no indication that he asked any
of the operator's employees when the roof fall had occurred, even
though his testimony reveals two possible reasons for the accumulation's presence, i.e., either the area had not been cleaned or
another fall had occurred (Tr. 45). In fact, he never asked anyone
whether any cleaning had been done by the Respondent prior to
issuing the order (Tr. 120). The fact that Mr. Roberts stated that
the area had been cleaned after the first roof fall and that another
roof fall or rock slide had occurred in the area, coupled with the
fact that the Respondent had cleaned in the area of the No. 3 overcast during the week prior to the issuance of the order, indicates
that MSHA has failed to establish by a preponderance of the evidence
that the accumulation had existed for 2 weeks. It is, however, sufficient to establish by a preponderance of the evidence that the belt
had been running out of alignment for approximately 2 weeks.
However, this does not end the inquiry, because an entry made
in the belt examiner's book for the November 19, 1977, second shift
(Exh. 0-2,Tr. 251-252), is sufficient to charge the Respondent with
knowledge of the presence of a combustible accumulation near the
No. 3 overcast. In this instance, the accumulation was 20 inches
deep for a distance of 20 feet, but the most serious part of the
accumulation related to the belt dragging in coal and rock and the
rollers so deeply buried that they could not be seen (Tr. 71, 87-88,
98-99). The extent and nature of the accumulations show that the
serious portion had to exist for more than one shift and also that
the belt examiner did not report in the book the extreme seriousness
of the accumulation. Knowledge of the belt examiner should be chargeable to the Respondent under the principles set forth in Pocahontas
Fuel Company, 8 IBMA 136, 84 I.D. 488, 1977-1978 OSHD par. 22,218
(1977), aff'd sub nom. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95
(4th Cir. 1979). Furthermore, the Respondent, in its posthearing
brief, acknowledges its awar~ness of this accumulation cited by the
inspector (Respondent's Posthearing Brief, pp. 17-18).
The Respondent argues that it should not have been aware of the
accumulation located at the old No. 7 Unit header. An individual was
regularly assigned to clean this area (Tr. 319). According to Respondent, it should not have been aware of the accumulat'ion because when
the belt supervisor examined Exhibit 0-2 at the beginning of the day
shift on November 21, 1977, he believed that the individual assigned
to the No. 7 Unit was stili stationed at the old No. 7 header location. Although the belt supervisor knew that the No. 7 Unit was moving, he understood that this individual would remain responsible for
the old No. 7 header location even after the unit moved because of
its proximity to the tailpiece of the Third Main South belt, at which
point No. 7 Unit's new belt would empty and for which he was already
responsible (Tr. 318, 323) (Respondent's Posthearing Brief, p. 17).

1132

I disagree. The fact that the need for cleaning at the Old No. 7
Unit header had been noted on the day and second shift reports for
November 19, 1977 (Exh. 0-2, Tr. 316), is sufficient to charge the
Respondent with knowledge of the accumulation's presence. The
inspector's estimate that the accumulation had existed for approximately two shifts is thus confirmed by the entries in Exhibit 0-2
(Tr. 96).
The final element of MSHA's prima facie case is whether the operator failed to clean up the accumulations, or failed to undertake to
clean them up, within a reasonable time after discovery, or within a
reasonable time after discovery should have be~n made.
As to the issue of "reasonable time," the Board in Old Ben
stated:
As mentioned in our discussion of the responsibilities
imposed upon the coal mine operators, what constitutes a
"reasonable time" must be determined on a case-by-case
evaluation of the urgency in terms of likelihood of the
accumulation to contribute to a mine fire or to propagate
an explosion. This evaluation may well depend upon such
factors as the mass, extent, combustibility, and volatility
of the accumulation as well as its proximity to an ignition source.
8 IBMA at 115.

The Board further stated:
With respect to the small, but inevitable aggregations
of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view that the
maintenance of a regular cleanup program, which would incorporate from one cleanup after two or three production
shifts to several cleanups per production shift, depending
upon the volume of production involved, might well satisfy
the requirements of the standard. On the other hand, where
an operator encounters roof falls, or other out-of-the-ordinary spills, we believe the operator is obliged to clean up
the combustibles promptly upon discovery. Prompt cleanup
response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the
most crucial of all the obligations imposed by the Act upon
a coal mine operator to protect the safety of the miners.
8 IBMA at 111.

1133

A question is presented as to whether the two accumulations cited
by Inspector Mills are the "small, but inevitable aggregations of combustible materials that accompany tbe ordinary, routine or normal mining operation," or whether they are "unusual occurrences of excessive
accumulations." In the former case, the Respondent -discharges its
duty through the maintenance of and adherence to a regula~ cleanup
program incorporating from one cleanup after two or three production
shifts to several cleanups per production shift, depending upon the
volume of product.ion involved. In the latter case, the Respondent is
required to undertake effective cleanup procedures promptly upon discovery of the accumulations.
For the reasons set forth below, I conclude that part of the
accumulations cited by Inspector Mills in his order of withdrawal
were excessive accumulations requiring a prompt cleanup response
by the operator within the meaning of Old Ben. As such, the Respondent was required to implement cleanup procedures outside the
requirements of its regular cleanup program. As relates to the
other part of the accumlations, it is evident -that the regular
cleanup program was not followed.
The Respondent seeks to avoid a finding that a violation occurred by arguing that it was confronted with "unusual circumstances"
in its efforts to clean the Third Main South belt (Respondent's
Reply Brief, pp. 2-3). I disagree. The problems experienced by the
Respondent could have been remedied by simply realigning the belt.
The inspector testified that the accumulations occurred as a
result of both running the belt while it was out of alignment and
because of slippage (Tr. 48, 62-63).
The alignment and slippage problems were directly attributable
to the roof fall that occurred along the Third Main South belt line
approximately 2 weeks prior to the issuance of the order. The available evidence, such as the excessive wear on the belt stand, indicates
that the belt had not been realigned after the fall. In addition, the
alignment problem was aggravated by events occurring on both the No. 3
and No. 6 Units on or around November 14, 1977, approximately 7 days
prior to the issuance of the order. According to Jack Dan
Matheson III, the belt foreman at the Camp No. 1 Mine, a fall occurred on the No. 6 Unit and the No. 3 Unit was loading rock (Tr. 338).
The Third Main South belt was involved in transporting the material
outside of the mine (Tr. 338, 344). As the transporting of large
rocks on the belt is, in itself, sufficient to "knock" the rollers
and cause an alignment problem (Tr. 339-340), it can be inferred
that the activities on or around November 14, 1977, aggravated the
existing alignment problem on _the Third Main South belt. Although

1134

it may be unusual for two units to·be running rock onto the belt
simultaneously (Tr. 376), this fact does not provide sufficient justification for failure to implement prompt cleanup., especially when
such activities a~gravate a preexisting alignment problem.
The fact that the roof falls which caused or aggravated the
alignment problem had been cleaned up is of no assistance to the
Respondent. Although those occurrences were removed in time or distance from accumulations observed on November 21, 1977, the accumulations still remained outside the scope of Respo.ndent' s regular
cleanup program. Failure to correct the alignment and slippage
problems resulted in the presence of such extensive accumulations
of combustible materials in the mine's active workings that they
cannot be deemed "the small, but inevitable aggregations of combustible materials that accompany the ordinary, routine or normal mining
operation." 8 IBMA at lll. As long as the Respondent permitted the
alignment and slippage problems to persist, it was bound to remove
the voluminous accumulations promptly upon discovery, subject, of
course, to the proviso that cleanup occur within a reasonable time.
1

Respondent submits that a violation of 30 CFR 75.400 cannot be
found as regards the accumulation located in the intersection located
one crosscut outby the No. 3 Unit's intake overcast because it was
in the process of alleviating the allegedly violative condition at
the time the withdrawal order was issued (Respondent's Posthearing
Brief, p. 18; Respondent's Reply Brief, p. 5). The belt was not
operating and there was no coal production. Jack Matheson testified
that he had assigned two men to clean the area on November 21, 1977,
because it had been cited in Exhibit 0-2 on the second shift of
November 19, 1977 (Tr. 333-334), and that he intended to keep the
Third Main South belt shut off until the area had been cleaned
(Tr. 331). In fact, Mr. Matheson went to the header of the Third
Main South belt to insure that the belt was not in operation
(Tr. 330-331, Respondent's Posthearing Brief, p. 18; Respondent's
Reply Brief, p. 5).
However, the fact that the Respondent was in the process of
removing the accumulations at the time the withdrawal order was
issued is not dispositive of the question of whether it had permitted the accumulations to exist by failing to commence cleanup
procedures within a reasonable time after discovery. The Respondent's theory, when carried to its logical conclusion, would preclude the finding of a violation where it could be established that
a dangerous accumulation of combustibles had existed for a month,
as long as the operator was in the process of removing them at the
moment the order of withdrawal issued. Such a position is patently
erroneous because it conveniently overlooks the clear mandate of
Old Ben that "cleanup should be accomplished within a reasonable
time after discovery." 8 IBMA at 110.

1135

. In support of its position, Respondent cites the Board's decision
in Zeigler Coal Company, 3 IBMA 366, 81 I.D. 598, 1974-1975 OSHD par.
18,675 (1974). In Zeigler, a notice of violation was issued for oil
and grease accumulations on a coal drill. The drill had been taken
out of service and was being cleaned at the time the violation was
cited. In holding that no violation was present since the equipment
was out of service and being cleaned at the time of the inspection
and prior to the issuance of the notice, the Board observed that such
facts warranted the inference that the operator intended to clean the
equipment before it reentered service.
The .circumstances of that case do not apply t:,, the facts in the
instant case. The principles of the later Old Ben decision, reviewed
above, must be applied to the instant case. There is no indication
that the coal drill involved in Zeigler had been in use for an unreasonable period of time after the accumulation was or should have been
discovered by the operator. In the instant case, the evidence is to
the contrary as relates to the operation of the belt in question.
The Old Ben case is instructive as to the type of corrective
action the Respondent should have taken. After setting forth the
elements of MSHA's prima facie case, the Board proceeded to apply
the test to the facts presented. According to the Board:
The operator's witnesses provided the only evidence
explaining how and when the combustible materials had
accumulated and what and when corrective action was
taken. Mr. Steve Rowland, a graduate mining engineer,
and a production foreman of Mine No. 24 for Old Ben, testified that the accumulations occurred during the shift
preceding the morning shift of July 13, when the inspection took place, and that they were caused by a belt
separation (Tr. 154); that there had been alignment and
and tension problems with the belt.(Tr. 157) and that the
mine manager sent men to restore tension to the belt and
realign it to prevent continued spillage, which was done
(Tr. 158); that also, on the morning of the inspection,
after checking the preshift examination reports, inspecting the beltline, and making the face areas, he immediately
assigned the bobcat and shuttle car operators to shovel
the side dumps along the belt (Tr. 156); and that the
mine manager had told him that two belt shovelers had
been sent to the 8th south belt in response to the preshift examination report which showed the belt dirty on
the just-concluded shift (Tr. 156). Mr. Yattoni verified this by his testimony that he observed the two belt
sh·ovelers beginning their work at 185 station along die
beltline as he walked in with the inspector (Tr. 114).
[Emphasis added.]
8 IBMA at 117.

1136

The pertinent language in the above-quoted passage reveals that
the operator was not only in the process of removing the accumulations within a reasonable time after it knew or should have known
of their existe~ce, but also alleviating the cause o~ the spillage,
i.e., the belt separation, tension and alignment problems. There is
no-indication in the present case that Mr. Matheson had instructed
his men to correct the cause of the spillage through alleviating
the slippage and alignment problems. Accordingly, there is no basis
for an inference that Respondent would have implemented proper corrective action prior to starting the Third Main South belt.
The fact that the belt was not in operation on the morning of
November 21, 1977, does not control the outcome of the case. Old Ben
states that "reasonable time" must be determined by evaluating
"urgency in terms of likelihood of the accumulation to contribute to
a mine fire or to propagate an explosion." 8 IBMA at 115. Such factors as "mass, extent, combustibility, and volatility of the accumulation as well as its proximity to an ignition source" are relevant
to this evaluation. 8 IBMA at 115. Accordingly, it is proper to
look to the conditions that existed at the time the operator acquired
knowledge of the accumulation's presence in determining whether
it undertook cleanup procedures within a reasonable time.
The mass, extent and physical characteristics of the accumulation
near the No. 3 Unit intake overcast are set forth above. It is
unnecessary to repeat them. They are hereby found to be of sufficient
mass, extent and combustibility to contribute to a mine fire or propagate an explosion. The remaining question is whether they were in
sufficient proximity to an ignition source.
The accumulation either was observed or should have been observed
by a belt examiner during the second shift on Saturday, November 19,
1977 (Exh. 0-2, Tr. 251-252). The shift started at 4 p.m. and ended
at midnight (Tr. 245). The testimony of Mr. Brent Roberts is sufficient to establish that it is more probable than not that the belt
examiner observed the condition between 4 and 8 p.m. (Tr. 252). In
fact, the law requires the belt examination to be made as soon as the
coal production shift starts (Tr. 150). 30 CFR 75.303. According to
Mr. Roberts, it would be safe to assume that the belt was running on
November 19, 1977, because entries in the belt examiner's book are
made only during those time periods when the belt is running (Tr. 266).
This is confirmed by Mr. Matheson's assertion that the belt examiner
makes his examination of the belts during the coal production shift
or during a shift on which the belts are running (Tr. 314).
Inspector Mills identified the potential hazard involved as a
mine Hre (Tr. 70), and stated that there was a good possibility
that· a fire could occur (Tr. 71). According to the inspector,
heat-producing friction is caused both by the belt dragging in

1137

coal and rock and by the belt rubbing the stand (Tr. 71). In fact,
he made the point quite graphically by stating: "When a belt rubs
a stand this long, its got to get hot. You'll find when they rub
this long, sometimes they're so hot you can't touch them, even
rollers that catch fire" (Tr. 71). The belt rollers were buried
(Tr. 98-99). His opinion was based on 25 years' experience gained
as a mine foreman (Tr. 19, 98).
The testimony of Respondent's witnesses confirms the inspector's
assertions. According to Mr. Lovell, a belt running in coal is an
ignition source (Tr. 425). Mr. Roberts' testimony on crossexamination reveals that
fire could have been caused by operating the belt
before the· accumulations were cleaned up (Tr. 279). Mr. Matheson's
testimony on cross-examination reveals that if the accumulation had
not b~en cleaned up, a ~elt fire could have occurred (Tr. 397).

a

The belt examiner is required to record his findings shortly
after completion of his examination (Tr. 150-151). The Respondent's
belt examiners recorded their entries toward the end of the shift
(Tr. 316). The actual or constructive knowledge of an individual
assigned by the operator to perform required examinations is imputed
to th:~ operator. Pocahontas Fuel Company, supra.
Accordingly, it is found that at the time the belt examiner
observed the accumulation, it was in sufficient proximity to an ignition source to warrant prompt cleanup, and that this knowledge was
imputed to the operator.
It is further found that the operator failed to implement cleanup
procedures within a reasonable time in that it failed to implement
cleanup until the next production shift, i:.·~·· on the morning of
November 21, 1977.
As relates to the accumulation at the old No. 7 Unit header
(Point E on Exh. M-3), it is ·found that they were of sufficient mass,
extent and combustibility to contribute to a mine fire. The accumulation was noted on the November 19, 1977, day and second shifts
(Exh. 0-2, Tr. 316). The testimony of Mr. Matheson establishes that
an individual was assigned regular cleanup duties at the old No. 7
header, and that Mr. Matheson expected him to clean the area even
though the No. 7 Unit was moving. However, Mr. Matheson had no
actual knowledge as to whether this individual actually had cleaned
the area during the time in question (Tr. 319-324, 386). According to
Inspector Mills, assuming that the belt had been activated prior to
cleanup, the buried coal and friction would have provided an ignition

1138

source (Tr. 111-112). The accumulation should have been cleaned up
during either the day or second shift on Saturday, November 19, 1977,
to comply with the regular cleanup program. The Respondent's belt
foreman stated that absenteeism on Saturday evenings_(second shift)
is about 30 percent. However this does not relieve the Respondent
from its responsibility. In accordance with the rationale set forth
above, it is found that the Respondent failed to undertake cleanup
within a reasonable time after discovery of the accumulations.
Accordingly, it is found that MSHA has established a violation of
30 CFR 75.400 by a preponderance of the evidence.
(b)

Gravity of the Violation

The potential hazard involved was a mine fire (Tr. 70). There
was a good possibility of a fire occurring (Tr. 71). Although the
belt was neither running nor hot at the time the order was issued
(Tr. 74, 87), it had been in operation on November 19, 1977, i.e.,
prior to commencement of cleanup. The belt was made of fire--resistant material, water lines ran parallel to it, and a fire
sensor was in the area (Tr. 102, 249-250). There was no methane in
the area (Tr. 103). The length of the belt was pretty well rock
dusted (Tr. 103, 248). There was some rock dust atop the accumulation on the return side near the No. 3 overcast, but there was
no rock dust atop the accumulation under the belt (Tr. 118). There
was an available escapeway (Tr. 104).
The inspector associated a severe degree of gravity with the
violation (Tr. 107). He identified approximately 25 people on the
No. 7 unit as being exposed to the hazard, in addition to some belt
cleaners and ventilation men (Tr. 72). A belt fire could have
trapped them (Tr. 72).
Accordingly, it is found that the violation was serious.
(c)

Negligence of the Operator

As set forth above, the operator was aware of the alignment and
slippage problems that caused the spillages. Respondent permitted
the alignment problem to persist for 2 weeks, although it required
only 2 hours to correct (Tr. 65). Exhibit 0-2 establishes that
Respondent acquired knowledge of the accumulations on November 19,
1977, and the inspector testified that the operator was aware of the
accumulations' existence (Tr. 50). He indicated that a person making a proper preshift or onshift examination would have observed the

1139

accumulations due to the following factors: The coal spillage in
itself; the belt out of alignment; the dragging of the belt on the
bottom without being on the bottom roller; and the. rubbing of the
stand (Tr. 58).
Accordingly,. it is found that the Respondent demonstrated greater
than ordinary, but somewhat less than gross negligence.
2.

Order No. 7-0563 (1 LWS), November 21, 1977, 30 CFR 75.400
(a)

Occurrence of Violation

MSHA inspector Louis W. Stanley conducted a spot inspection at
the Respondent's Camp No. 1 Mine on November 21, 1977 (Tr. 160).
While on the surface, he examined the fire boss' records and the
belt examiner's records (Exhs. 0-2, 0-3, Tr. 161). Entries in the
belt examiner's book (Exh. 0-2) made between November 17, 1977, and
November 19, 1977, recorded accumulations along the Second Main South
belt (Tr. 185-187). He was familiar with the system of reporting
·
employed at the mine (Tr. 185). After relaying some of the information gleaned from the records to Inspector Mills (Tr. 188), he proceeded underground and inspected the Second Main South belt. The
belt is approximately 4,500 feet long (Tr. 198). He was accompanied
on the inspection by Mr. Martin T. Lovell, the safety manager at the
Respondent's Camp No. 1 Mine (Tr. 161-162). Mr. Lovell accompanied
him as far as the No. 31 crosscut (Tr. 412). Mr. Jack Dan
Matheson III, the belt foreman, accompanied the inspector from
the No. 31 crosscut inby for a distance of 15-20 crosscuts
(Tr. 342-343).
An accumulation of loose coal was observed extending from the
No. 7 crosscut inby to the No. 11 crosscut, a distance of approximately 280 feet (Tr. 177, Exh. M-10). It measured 4 to 8 inches in
depth, and 3 feet in width (Tr. 177, Exh. M-10). Rock dust was
observed atop the coal (Exh. M-10).

An accumulation of loose coal was observed extending from the
No. 14 crosscut inby to the No. 19 crosscut for a distance of
300 feet (Tr. 178, Exh. M-10). It measured 16 inches in depth and
2 feet in width (Tr. 178, Exh. M-10). The belt was rubbing coal and
stuck rollers were found a·t the No. 18 crosscut (Tr. 178). The accumulation was only on the backside of the belt (Tr. 198).
An accumulation of loose coal was observed extending from the
No. 30 crosscut inby for approximately 220 feet (Tr. 179, Exh. M-10).
It measured 20 inches in depth and 4 feet in width (Tr. 179,
Exh. M-10). The belt was running in coal for 220 feet (Tr. 179).
There were three stuck rollers, and two rollers were turning in
coal from the No. 30 to the No. 34 crosscut (Tr. 179, Exh. M-10).

1140

An accumulation of loose coal was observed extending from the
No. 35 crosscut to the No. 44 crosscut, a distance of 540 feet. It
measured 4 to 8 inches in depth and 3 feet in width (Tr. 179-1~0,
Exh. M-10). The accumulation was found only on one side of the belt
(Tr. 198).
An accumulation of loose coal was observed extending from the
No. 44 crosscut inby for approximately 80 feet. It measured 18 to
24 inches in depth and 4 feet in width. The belt and four bottom
rollers were running in coal. There was coal on both sides of the
belt (Tr. 180, Exh. M-10).
An accumulation of loose coal was observed extending from the
No. 46 crosscut to the No. 63 crosscut, a distance of approximately
1,020 feet. It measured 4 to 16 inches in depth and 2 to 4 feet in
width. The belt was running in coal at the Nos. 56, 58 and 63 crosscuts (Tr. 180, Exh. M-10).
An accumulation of loose coal was observed extending from the
No. 63 crosscut to the No. 68 crosscut, a distance approximately
300 feet. It measured 4 to 8 inches in depth and 3 feet in width
(Tr. 180, Exh. M-10).

Float coal dust was deposited atop rock dusted surfaces from the
No. 11 crosscut inby to the No. 63 crosscut, a distance of approximately 3,500 feet (Exh. M-10). Float dust was present the entire
length of the belt from the drive to the tailpiece (Tr. 182, 222-223).
A ruler was used to measure the depth and width of the various
accumulations (Tr. 181). The lengths were approximated by using the
60-foot centers as a guide (Tr. 181). The loose coal was defined by
the inspector as ranging from 1 to 4 inches in diameter (Tr. 182).
Float coal dust was described by the inspector as possessing the
property whereby it becomes suspended in the air when disturbed (Tr.
182). Although the inspector did not measure the float dust (Tr.
182), he did blow on it (Tr. 183). He stated that float coal dust
is very difficult to measure unless an extreme depth is present (Tr.
183).
The belt was running during the course of the inspection (Tr.
183, 196, .436), which began at 7:30-7:35 a.m. (Tr. 412), until it was
shut down at 8:20 a.m. (Tr. 196, 417). No coal production occurred
during the course of the inspection. ll
3/ At several points in his testimony, Inspector Stanley expressed
his belief that coal production was taking place during the course
of his inspection (Tr. 201, 212). He observed coal on the belt
periodically (Tr. 196), and opined that it had resulted from mining
activity, as opposed- to having been deposited on the belt by belt

1141

These accumulations resulted from belt spillage which occurred
during the normal process of mining (Tr. 184). According to
Mr. Matheson, on or around November 14, 1977, a fall occurred on the
No. 6 belt line, and the No. 3 Unit was loading rock (Tr. 338). ~oth
units were located inby the Second Main South belt, and the belt had
to be employed to transport the rock out of those areas (Tr. 338).
The transporting of large rocks on the belt causes a belt alignment
problem (Tr. 339-340). Alig1".Illent problems cause spillage problems
(Tr. 202).
The Respondent had a written cleanup plan in effect on
November 21, 1977 (Exh. M-17), which states in pertinent part:
"The float dust and coal spillage is shoveled by hand on all belt
haulage. This work is being done on both c~al run shifts" (Exh.
M-17, Tr. 189-190). However, the interpretation of this plan set
forth by Inspector Stanley varies materially from the interpretation
urged by the Respondent's witnesses.
Footno.te 3/ (continued) shovelers, based upon. its length (Tr. 212).
He observed that shoveling coal onto the belt produces "a spot here,
another spot here***," whereas loading it from the face area produces a longer stream (Tr. 212). He believed that it had come from
the working sections inby (Tr. 219). However, he admitted under
cross-examination an absence of knowledge as to whether any miners
had reached the faces by 8:20 a.m. (Tr. 201).
In light of the testimony of both Inspector Mills and the
Respondent's witnesses, I conclude that Inspector Stanley was mistaken in his belief, and that the coal he observed on the belt had
not been mined from a face. The testimony adduced with respect to
Order No. 1 MEM, Part V(B)(l)(a), supra, indicates that no production was under way in the working sections adjacent to the Third
Main South belt, and that the Third Main South belt was not in operation on the November 21, 1977, day shift. The Third Main South
belt was inby and discharged onto the Second Main South beit
(Tr. 344-345). It was impossible to transport material to the surface via the Third Main South belt without employing the Second
Main South belt (Tr. 345). These facts weigh against Inspector
Stanley's belief because he thought the coal was coming from
working faces inby his location on the Second Main South belt
(Tr. 219). In fact, he had no actual knowledge as to whether the
inby belt had been running that day (Tr. 219-220).
Additionally, Mr. Lovell saw no coal on the belt, and he had
walked with the inspector for a distance of 33 crosscuts (Tr. 413).
When he left the inspector at 8:15 or 8:20 a.m., it was for the purpose of shutting down the belt (Tr. 417).
Additionally, although it would have been possible for the workmen to have commenced mining by 8:15 or 8:20, the testimony of
Mr. Lovell reveals that it was highly improbable (Tr. 417-418).

1142

According to Inspector Stanley, the cleanup plan was not being
followed in that the spillage was not being shoveled onto the belts
on both coal production shifts (Tr. 190). The inspector's interpretation of the plan was that the accumulations should have been cleaned
up on each shift (Tr. 190). It should be recalled at this juncture
that Inspector Mills, whose interpretation of the plan has been discussed previously in Part V(B)( 1) (a), supra, interpreted the cleanup
plan the same way ..
The Respondent's witnesses disagreed with this interpretation.
Mr. Brent Roberts., while agreeing that cleanup is required during
the production shifts (Tr. 246, 274), stated that the plan refers
to a continuous cleaning process which does not· necessarily mandate
one cleanup per shift (Tr. 274). According to Mr. Roberts, the fact
that a spillage had existed for a couple of shifts would not necessarily make it an improper accumulation as long as work is being performed on it (Tr. 298). His interpretation of the plan was that it
merely required work to be performed on the accumulation (Tr. 298).
Mr. Martin T. Lovell gave differing interpretations at various
points in his testimony, one of which is in harmony with Inspector
Stanley's interpretation and one of which is in harmony with
Mr. Roberts' interpretation. According to Mr. Lovell, the cleanup
plan requires work to be performed on both coal run shifts, but does
not state that spillage has to be cleaned up within two coal run
shifts (Tr. 455). However, during the course of examination by the
Judge, he interpreted the cleanup program as requiring the cleanup
of all accumulations by the end of each production shift in the
ab"sence of excessive amounts of spillage (Tr. 449-450). He defined
an "excessive amount of spillage" as being "where the rollers or belt
would be turning in coal" (Tr. 454). He thereupon stated, during
cross-examination, that if a spillage or accumulation is caused by
the normal process of mining, regardless of the extent of the accumulations, they are supposed to be cleaned up ·according to the cleanup
plan (Tr. 455).
Based on the foregoing testimony as to the meaning of the cleanup
plan in effect on November 21, 1977 (Exh. M-17), I conclude that the
plan requires accumulations to be cleaned up by the end of each production shift, and that the plan en·compasses those spillages caused by
belt alignment problems resulting from the transportation of rock on
the belt. This interpretation is buttressed by the fact that, to a
certain extent, roof falls are normal at the Camp No. 1 Mine (Tr. 373,
376), thus requiring frequent use of the belts to transport the material produced by the falls.
The subject order of withdrawal (Exh. M-10) alleges a violation
of 30 CFR 75.400. The text of this section of the Code of Federal
Regulations and the elements of MSHA's prima facie case as set forth
in Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD par.

1143

22,087 (1977), motion for ~econsideration denied, 8 IBMA 196, 19771978 OSHD par. 22,328 (1977), have been set forth in Part V(B)(l)(a),
supra. Briefly, MSHA's prima facie case consists of three elements:
~The existence of an accumulation of combustible materials in
the active workings of a coal mine, or on electrical equipment
therein; (2) that the operator knew or should have known of their
existence; and, (3) that the operator failed to clean up, or failed
to undertake to clean up, the accumulations within a reasonable time
after he knew or should have known of their existence.
There can be no doubt that accumulations of combustible materials
existed in the active workings of the mine as qescribed above.
The extent of the accumulations was sufficient to give the operator knowledge of their presence (Tr. 188). According to Inspector
Stanley, the condition had existed for at least 1 week prior to
November 21, 1977 (Tr. 189). His opinion was based upon two sets of
facts (Tr. 189). First, he had examined the examiner's reports on
the surface (Tr. 186). The condition had beeri reported by the examiner in a series of entries made between November 17, 1977 and
November 19, 1977 (Exh. 0-2, Tr. 186-187). Second, the presence and
color of the float coal dust deposited atop the spilled ~oal indicated that it had been present for at least 1 week (Tr. 189). According to the inspector, a period of time is required for float coal dust
to move dovm the belt line and settle on the coal (Tr. 213). A recent
spillage would be shiny black, whereas one present for a longer period
of time would have a brownish cast (Tr. 213-214). The float coal dust
observed by the inspector had a brownish cast (Tr. 214). Additionally,
the depths of the accumulations, and, in some instances, the presence
of rock dust deposits atop the coal, also influenced his time estimate
(Tr. 213). The accumulations should have been discovered during a
proper preshift or onshift examination (Tr. 188-189).
The testimony of Respondent's witnesses is sufficient to corroborate the inspector's time estimate. First, a close examination of the
entries in Exhibit 0-2, mentioned by Irispector Stanley in his testimony (Tr. 186-187), shows that they are not identical. Some are very
specific, while some are very general in their descriptions.
Mr. Matheson indicated that, in response to the entires in Exhibit
0-2, he had assigned from six to 10 belt cleaners daily to the subject
belt (Tr. 336-33 7) between Novmeber 18 and November 21, 1977. As a
permissible inference, one could infer that these men removed all of
the accumulations along the belt on each day they were assigned to the
area, a fact that would explain the differing descriptions contained
in the belt examiner's book (Exh. 0-2). Under this interpretation, no
two descriptions would be alike because they would not be referring
to the same accumulation(s) on successive days. This appears to be the
interpretation advanced by Respondent, as evidenced by Mr. Matheson's
testimony regarding "fines." "Fines" were defined by Mr. Matheson
as small particles that fall through the belt splices (Tr. 327).

1144

He testified that he did not see any accumulation of fines along
the 15 to 20 crosscut distance that he walked with Inspector Stanley
(Tr. 346-347). According to Mr. Matheson, the absence of fines
denoted that the belt had been shoveled previously because: "[t]h~
more fines you have, the longer its been since the belt has been
shoveled" (Tr. 347). Unfortunately, the absence of fines has little
probative value when viewed in light of the extensive accumulations observed by the inspector. Even assuming that the accumulations
were intended to be removed at the end of two shifts, Mr. Matheson
could not state that all accumulations were always removed within two
shifts (Tr. 385).
The testimony of both Mr. Matheson and Mr. Lovell reveals that
the belt examiner's reports do not always contain a complete record of
the belt examiner's observations. Mr. Lovell had reached the conclusion that the belt needed to be shut down prior to the issuance of
the order because, while walking the belt with the inspector,
Mr. Lovell's observations caused him to conclude that the accumulations were "too much" (Tr. 443). Mr. Matheson had apparently reached
the same conclusion. After walking 15 to 20 crosscuts, he went inby
to the No. 3 overcast region of the Third Main South belt to reassign
his men to the Second Main South belt. He did so because his pecsonal
observations revealed that the spillage problem was more extensive
than what he had read in th~: belt examiner's book, and he therefore
deemed it necessary to reassign his men to the area (Tr. 342-346).
In light of the foregoing, Mr. Matheson's statements that belt examiners consistently record those things that need shoveling, and that
such examiners always indicate when cleaning is necessary (Tr. 364365), stand discredited to the extent they infer that the entries
in the belt examiner's book accurately recorded the extensiveness of
the accumulations along the Second Main South belt.
The presence of two additional factors serves to corroborate the
inspector's time estimate. First, the above-mentioned activities that
occurred on or around November 14, 1977 ., resulted in the loading of
the rock that adversely affected the belt alignment, resulting in the
spillage. The fact that the alignment problem can be traced to at
least 1 week prior to November 21, 1977, corroborates the inspector's
1-week time estimate. Second, Mr. Matheson recalled assigning six to
10 belt cleaners per day to the Second Main South belt on the 14th,
15th, 16th, and 17th days of November 1977 (Tr. 337). Since cleanup
personnel were assigned to an area based upon both the entries in the
belt examiner's book and conversations with the belt walkers (Tr.
310), it can be inferred that the condition had been reported to
Mr. Matheson on those days.
Accordingly, it is found that a large portion of the conditions
cited in the subject order of withdrawal had existed for approximately
1 week prior to November 21, 1977, and that, based on the foregoing,
the Respondent knew or should have known of their existence.

1145

In light of the foregoing conclusion that most of the accumulations had existed for approximately 1 week, and in view of the
requirement of the cleanup plan that accumulations. be removed by the
end of each production shift, it is found that the Respondent failed
to clean up or undertake to clean up the accumulations within a reasonable time after it knew or should have known of their existence
in that it failed to follow its written cleanup program. For the
reasons previously set forth in this decision, the fact that the
transportation of large rocks on the belt had caused an alignment
problem that resulted in the subject spillages, does not excuse the
Respondent's faiiure to adhere to the cleanup plan. The fact that
the spillage occurred during the normal process· of mining (Tr. 184)
further places them within the scope of the plan.
This finding is bolstered by the testimony of Mr. Matheson.
Instead of affirmatively stating that he always complied with the
cleanup plan, he testified that he endeavored to comply with the
cleanup plan to the "best of my ability" (Tr. 308). The inferences
drawn from this guarded statement, coupled with the fact that the
mine faced problems with dirty belts (Tr. 194, 282), further supports the conclusion that the cleanup plan was not followed during
the periods of time pertinent to this proceeding.
The presence of cleanup men working on the' belt at the time the
inspection was underway does not aid the Respondent on the facts as
presented herein. The inspector observed only two persons cleaning
the belt, and they were observed at the No. 34 crosscut (Tr. 199,
214). Mr. Matheson had reviewed the belt examiner's book (Exh. 0-2)
on November 21, 1977 (Tr. 314). Although he later concluded that
the entries contained therein understated the spillage problem (Tr.
342-345), the information contained in the book caused him to assign,
to the best of his recollection, eight to 10 belt cleaners to the
Second Main South belt (Tr. 336). The fact that the information contained in the book caused Mr. Matheson to conclude that eight to
10 men were needed to alleviate the spillage, coupled with the presence of only two belt cleaners on the belt, prevents a finding that
the Respondent was in the process of implementing effective cleanup
procedures at the time of the order's issuance.
(b)

Gravity of the Violation

The description of the extent, composition and location of the
accumulations is set forth in Part V(B)(2)(a).
The Second Main South belt was running from the time the inspector started at 7:30-7:35 a.m. until it was shut down at 8:15-8:20 a.m.
(see Tr. 183, 196, 206-207, 411-412, 417). Inspector Stanley testified as to the presence of stuck rollers, as Set forth in Part
V(B)(2)(a), supra. He felt the rollers, and some of them were warm to
the touch (Tr. 195).

1146

Mr. Matheson indicated that the belt had been in operation during
the week prior to the order's issuance (Tr. 393). He also stated that,
given the proper conditions, a belt fire can be started by one stuck
roller or by the belt dragging in coal (Tr. 394, 396). Mr. Lovell
stated that a belt running in coal presents an ignition source
(Tr. 425).
The inspector stated that the area was rock dusted (Tr. 189), but
.indicated that the belt was not well rock dusted (Tr. 203). There was
float coal dust atop the rock dust (Tr. 189). He identified the potential hazard as a mine fire (Tr. 195), and classified an occurrence as
"probable" because friction could cause a fire (Tr. 195). The possible injury was death by smoke inhalation (Tr .. 196). Approximately
50 miners were exposed to the hazard (Tr. 196). He stated that with
respect to methane, in "this area it would be academic as far as being
any sufficient amount" (Tr. 195). There were firesensing lines and a
water line in the area (Tr. 203). The water line adjacent to the belt
ran the entire length of the belt (Tr. 415). There were both primary
and secondary escapeways (Tr. 204).
Accordingly, on the facts as set forth above, it. is found that
the violation was extremely serious.
(c)

Negligence of the Operator

As set forth in Part V(B)(2)(a), supra, the Respondent knew or
should have known of the presence of the combustible accumulations in
the mine's active workings. This is based upon the entries in the
belt examiner's book, the duration of the accumulations' existence,
the extent of the accumulations as sufficient to give notice to the
operator, and the fact that they should have been observed during a
proper preshift or onshift examination. Also,. the Respondent failed
to undertake effective cleanup procedures within a reasonable time
after it knew or should have known of the accumulations' presence.
Accordingly, it is found that the Respondent demonstrated more
than ordinary but somewhat less than gross negligence.
3.

Good Faith in Securing Rapid Abatement: Order Nos. 7-0565
1 (MEM), November 21, 1977, and 7-0563 (1 LWS)

The Second Main South and Third Main South belts had a combined
length of approximately 7,000-8,000 feet (Tr. 209, 350). After
regrouping his men, Mr. Matheson had approximately 35 people cleaning
the Second Main South belt (Tr. 352, 420). By the end of the first
shift, a major portion of the Second Main South belt, in Mr. Matheson's
estimation approximately 95 percent, had been cleaned (Tr. 352). The
Second Main South belt was rock dusted after it was cleaned (Tr. 352353). The mine has only one rock dusting tanker, and it is possible
to rock dust eight to 10 crosscuts with one tanker and do a good job
(Tr. 353). There are approximately 70 crosscuts on the Second Main
South belt (Tr. 353).

1147

The Second Main South belt had been cleaned ·and portions of it
had been rock dusted by 7 a.m. on November 22, 1977 (Tr. 194-195,
207, 209). The rock dusting was still under way when the inspector
arrived (Tr. 209-210).
As regards the Third Main South belt, the accumulation near
the No. 3 unit ov.ercast had not been cleaned up by 6:30 a.m. on
November 22, 1977 (Tr. 63). However, it was abated by 8:30 a.m.
(Tr. 64-65).
Accordingly,. it is found that the operator demonstrated good
faith in securing rapid abatement of the viola~ions.

4.

Order No. 7-0583 (1 LWS), December 1, 1977, 30 CFR 75.200
(a)

Occurrence of Violation

MSHA inspector Louis W. Stanley arrived at the Respondent's Camp
No. 1 Mine at 6:20 a.m. on December 1, 1977 (Tr. 460). He went underground between 7:00 and 7:15 a.m. (Tr. 460). He was accompanied
during the inspection by Mr. Martin T. Lovell, the safety manager
at the Respondent's Camp No. 1 Mine (Tr. 519).
According to the inspector, the roof was inadequately supported
at a point in the No. 1 entry in the Fourth East Panel off 2 Main
South located 60 feet outby spad 4+20 (Exh. M-13, Tr. 464). The
Fourth East Panel is .also called the No. 3 Unit (Tr. 461). The No. 1
entry was being used as a supply road at the time, and people were
observed riding under the inadequately supported roof (Tr. 464, 468,
485-486), even though a danger sign was located at the mouth of the
cavity (Tr. 471). The road was 18 feet wide (Tr. 490-491). There
were rocks hanging from the ceiling of the cavity, most of which
were to the side (Tr. 478).
He thereupon issued the subject order of withdrawal (Exh. M-13),
citing the Respondent for a. violation o·f the mandatory safety standard embodied in 30 CFR 75.200, which states, in pertinent part:
"The roof and ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs."
A cavity existed in the roof of the No. 1 entry, a cavity caused
by a previous roof fall (Tr. 464-465). Mr. Lovell confirmed the existence of the cavity (Tr. 520). It was approximately 35-40 feet in
length (Tr. 465) and approximately 10 feet high (Tr. 487). Width estimates were made with reference to those roof bolts which had been
installed in the cavity.

1148

According to the inspector, only a portion of the cavity was completely lacking support. Two rows of bolts had been installed for a
distance of 16 lineal feet and three rows of bolts had been installed
for a distance of 20 lineal feet (Tr. 465, Exh. M-16). In the inspector's opinion, there should have been at least four rows of bolts for
the entire length of the cavity (Tr. 466).
The blue lines on Exhibit M-16 represent the estimated widths of
areas totally lacking supports, figures estimated with reference to
the previously installed supports. Exhibit M-16 is not drawn-to-scale
(Tr. 465-466). The previously installed supports were located toward
the center of the cavity (dark circles on Exhibit M-16). On the
lefthand side of the cavity, supports were lacking in an area
approximately 4 feet in width and 16 feet in length (Exh. M-16,
Tr. 484-485). On the righthand side of the cavity, supports were
lacking in an area measuring 36-40 feet in length, and varying
in width between 8 and 10 to 12 feet (Exh. M-16, Tr. 485).
The inspector measured the length of the cavity (Tr. 482). He
estimated all widths visually , both as to the spacing between the roof
bolts and as to the unsupported area, because the 10-foot height of
the cavity, coupled with the presence of rock from the previous roof
fall on either side of the entry, prevented his taking measurements
(Tr. 465, 483-484, 487-488). At one point in his testimony,
Mr. Lovell, who was present when the order was issued, stated.both
that the inspector's estimate of the distance of the cavity was
reasonably accurate and that all of the inspector's dimensions seemed
reasonably accurate (Tr. 520). Mr. Lovell further stated that
Exhibit M-16 accurately reflects the roof bolts present at the time
(Tr. 520). Furthermore, he did not dispute the fact that there was
an area of unsupported roof (Tr. 534).
1

In light of the corroborating testimony of Mr. Lovell, coupled
with the absence of any objections to the measurement procedure in
either the testimony or in the Respondent's posthearing brief, it
is found that the inspector's width and distance esitmates are sufficiently accurate for purposes of resolving the issues presented
herein.
The inspector testified that he did not cite a violation of the
roof control plan because the plan does not specifically cover rebolting in the situation presented herein (Tr. 494-495). He stated that
the roof control plan in effect on the date of the order addressed
the rebolting of roof cavities only as follows: "Header boards shall
be installed between the roof bearing plate and the roof where cavities are rebolted. Conventional roof bolts may be used in these areas"
(Tr. 498; Exh. M-40, p. 9, No. 32). However, he observed that the
roof control plan normally requires bolts to be on 5-foot centers, and
that normally four rows of bolts would be across an entry (Tr. 491492).

1149

Mr. Lovell indicated that the roof control plan covered the area.
He thought it required conventional bolts to be set on 5-foot centers,
but admitted that the plan was vague (Tr. 539 )'.
It is unnecessary to address the ambiguities in the roof control
plan, if it is indeed ambiguous, because the plan is not the basis for
the violation presented herein. In Zeigler Coal Company, 2 IBMA 216,
80 I.D. 626, 1973-1974 OSHD par. 16,608 (1973), the Board of Mine
Operations Appeals held "that an operator is un,der a duty to maintain
a safe roof irrespective of any roof control plan and that the
failure to do so constitutes a violation of the mandatory safety
standard of [30 CFR 75.200)." 2 IBMA at 222.
Accordingly, where the evidence presented is sufficient to establish that the mine's roof was not adequately supported to protect
persons from falls, it is not necessary to prove a violation of the
roof control plan in order to sustain a violation of 30 CFR 75.200.
Mr. Lovell did not dispute the fact that ·an area of unsupported
roof existed (Tr. 534, 542). However, for reasons set forth in the
section of this decision discussing the gravity of the violation, he
disagreed that the individuals riding in the mantrip would be required
to travel directly under unsupported roof (Tr. 542). Yet, he did not
dispute the fact that either the supported or the unsupported section
of roof could fall (Tr. 540).
The question presented is whether the above-mentioned facts establish a violation of 30 CFR 75.200 by a preponderance of the evidence.
Both witnesses agreed that unsupported roof existed in the area cited
in the subject order of withdrawal. Inspector Stanley testified as
an expert that the number of supports present was inadequate, stating
that four rows of supports should have been installed. Rocks were
observed hanging from the roof of the cavity, most of which were to
the side. During the abatement process, some of the unbolted roof
fell (Tr. 474). Miners were observed pas~ing beneath the cavity,
even though a danger sign was conspicuously located at its mouth.
Even Mr. Lovell admitted that an area of unsupported roof was present,
and he did not dispute the fact that the unsupported section of roof
could fall.
Accordingly, it is found that a violation of 30 CFR 75.200 has
been established by a preponderance of the evidence.
(b)

Gravity of the Violation

The inspector identified the potential danger as fatal roof falls
(Tr. 472). Possible injuries ranged from smashed fingers to death
(Tr. 4?3). Ten miners were directly exposed to the hazard (Tr. 473).
The inspector stated that an occurrence was probable, and, indeed,
during the abatement process, some of the unsupported roof fell
(Tr. 474).

1150

There were fractures in the roof (Tr. 478, 541). According to
the inspector, they were present in both the bolted and unbolted portions of the cavity (Tr. 479). The inspector stated that fractures
are very dangerous in unbolted sections of roof (Tr. 479).
Mr. Lovell indicated that cracks can add to the extent of a roof
fall as relates to unsupported roof, depending upon the depth of the
fracture (Tr. 541). The inspector stated that the danger sign indicated that the Respondent thought the condition was bad because it
was unsupported (Tr. 490).
The 10-foot height of the cavity prevented the inspector from
testing the roof for druIIUniness (Tr. 486).
The roof was not working (Tr. 478, 528).
refers to cracking and popping (Tr. 478).

The term "working"

According to Mr. Lovell, a mantrip, which is approximately 6 to
8 feet wide, could travel under the bolted portion of the cavity and
still remain under supported roof (Tr. 529-530). During the course
of the hearing, he produced a drawing to assist in illustrating his
opinion (Exh. 0-5). His testimony referred to that portion of the
cavity where two rows of bolts wer':! present (Tr. 529).
According to Mr. Lovell, tl,e roof control plan requires conventional bolts to be installed on 5-foot centers (Tr. 529), thus leading to the conclusion that each conventional roof bolt provides roof
support within a 2-1/2-foot radius (Tr. 529-530, 542). Conventional
bolts had been installed in the cavity (Tr. 529), with 5 feet between
each bolt (Tr. 529). He therefore concluded that the two bolts provided support for a distance of 10 feet, as measured between the ribs.
This figure was reached by adding the 5 feet between the two bolts to
the 2-1/2 feet on the opposite side of each bolt (Tr. 529, 530). In
his opinion, this was sufficient to allow the 6- to 8-foot wide mantrip to pass under supported roof. (Tr. 530, 542).
A review of Mr. Lovell's background (Tr. 409) reveals that he
does not posses the credentials necessary to accord great probative
value to his theory. Indeed, he could not state that the presence of
the bolts in the cavity would either impede a roof fall or lessen its
severity (Tr. 540-541). Accordingly, his testimony on this point
does not materially affect the gravity of the violation. The fact
that the inspector testified that a person walking down the center
of the travelway would be under the bolted portion of the roof
(Tr. 482) cannot be interpreted as lending support to Mr. Lovell's
theory of the facts presented herein. Indeed, the inspector saw
people pass beneath the unsupported roof (Tr. 468).
On the facts as set forth above, it is found that the violation
was extremely serious.

1151

(c)

Negligence of the Operator

The condition was readily visible (Tr. 471). The condition was
listed on the preshift examiner's reports commencing November 25, 1977
(Exh. M-19, Tr. 469) and running through November 30, 1977 (Exhs. M-20,
M-21, Tr. 469-470). The entry in Exhibit M~22 for December 1, 1977
(Tr. 470), was made after the issuance of the order (Tr. 546-550,
553-554). There was a danger sign immediately outby the cavity across
the supply road (Tr. 471). It had been placed.there between 12 midnight
and 8 a.m. on November 30, 1977 (Tr. 532). The fact that more rock had
to be removed from the area before the remaining bolts could be
installed (Tr. 533) does not lessen the degree ?f negligence demonstrated by the Respondent.
Accordingly, it is found that the Respondent demonstrated a high
degree of gross negligence.
(d)

Good Faith in Securing Rapid Abatement

The order of withdrawal was issued at 7:50 a.m. on December 1,
1977 (Tr. 463, Exh. M-13), and was terminated at 11:00 am. on
December 2, 1977 (Exh. M-14). The condition was abated by installing
additional roof bolts (Tr. 474).
Accordingly, it is found that the Respondent demonstrated good
faith in securing rapid abatement of the violation.
5.

History of Previou~ Violations

The Respondent's history of previous violations, relating to the
Camp No. 1 Mine, as contained in Exhibit M-2, during the 24 months
prior to November 21, 1977, is summarized as follows:
30 CFR
Standard

Year 1
11/22/75 - 11/21/76

Year 2
11/22/76 - 11/21/77

Totals

All sections

334

520

854

75.200
75.400

28
43

49
50

77
93

(Note:

All figures are approximations).

The Respondent paid assessments for approximately 854 violations
of all sections of Title 30 of the Code of Federal Regulations during
the 24 months prior to November 21, 1977. ·Approximately 334 are shown
during year 1, and approximately 520 are shown during year 2.
~he Respondent paid assessments for approximately 77 violations
of 30 CFR 75. 200 during the 24 months prior to N.ovember 21, 1977, with
approximately 28 during year 1 and approximately 49 during year 2.

1152

The Respondent paid assessments for approximately 93 violations
of 30 CFR 75.400 during th~ 24 months prior to November 21, 1977, with
approximately 43 during year 1 and approximately 50 during year 2.
On June 30, 1977, Peabody Coal Company was transferred by
Kennecott Copper Company to Peabody Holding Company (Tr. 510-511).
Respondent contends that the change in ownership prevents including
the violations prior to June 30, 1977, in the history of violations
(Tr. 10-15, Respondent's Posthearing Brief, p. 25). Counsel for the
Respondent was informed during the hearing that for the position to
be considered, appropriate evidence would have to be placed in the
record (Tr·. 15). No evidence has been presented as to the structure
of Kennecott Copper Company, Peabody Holding Company, and Peabody
Coal Company, and their relationships with the subject mine. There
is no'evidence establishing that the change in ownership marks any
change in company policy as to mine safety. The fact remains that
Peabody Coal Company has been the operator of the Camp No. 1 Mine at
all times relevant to this proceeding (Exh. M-2).
Accordingly, violations which occurred prior to June 30, 1977,
will be considered in evaluating the Respondent's history of
violations.
6.

Appropriateness of Penalty to Size of Oper.ator's Business

The Camp No.l Mine produc~d approximately 559,509 tons of coal
in l978 (Exh. M-1). Peabody Coal Company produced approximately
. 47 ,650,569 tons of coal in 1978 (Exh. M-1). Furthermore, the parties
stipulated that the Respondent is a large operator for purposes of
assessment of any civil penalties (Tr. 8).
7.

Effect on Operator's Ability to Continue in Business

The parties stipulated that the assessment of any penalties in
this proceeding will not affect the Respondent's ability to continue
in business (Tr. 8). Furthermore, the Interior Board of Mine Operations Appeals has held that evidence relating to whether a civil
penalty will affect the operator's ability to remain in business is
within the operator's control, resulting in a rebuttable presumption
that the operator's ability to continue in business will not be
affected by the assessment of a civil penalty. Hall Coal Company,
1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I find that penalties otherwise properly assessed in this proceeding will not impair the operator's ability to continue in
business.
VI.

Conclusions of Law

1. Peabody Coal Company and its Camp No. 1 Mine have been subject to the provisions of the Federal Coal Mine Health and Safety Act
of 1969 and the 1977 Mine Act during the respective periods involved
in this proceeding.

1153

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to this proceeding.
3. The violations charged in the subject orders of withdrawal
are found to have occurred.

4. All of the conclusions of law set forth in Part V of this
decision are reaffirmed and incorporated herein.
VII.

Proposed Findings of Fact and Conclusions of Law

Both parties submitted posthearing briefs: Both parties submitted reply briefs. Such briefs, insofar as they can be considered
to have contained proposed findings and conclusions, have been considered fully, and except to the extent that such findings an.d conclusions have been expressly or impliedly affirmed in this decision,
they are rejected on the ground that they are, in whole or in part,
contrary to the facts and law or because they are immaterial to the
decision in this case.

VIII.

Penalties Assessed

Upon consideration of the entire record in this case and the
foregoing findings of fact and conclusions of l'aw, I find that the
assessment of penalties is warranted as follows:
Order No.

7-0565 (1 MEM)
7-0563 (1 LWS)
7-0583 (1 LWS)

Date

30 CFR
Standard

Penalty

11/21/77
11/21/77
12/01/77

75.400
75.400
75.200

$3,000
6,000
8,000

ORDER
Respondent is ORDERED to pay the penalties assessed in the
amount of $17,000 within 30 days of the date of this decision.

I~

ohn F. Cook
Administrative Law Judge

1154

OFFICE Of ADM!i;iiSTRATlVE LAW JUDGES
4015 WIL.501·l ;:\OUL.t::V>.RD
/3.RLINGTON, vmGINlf, 22203

. '·"

;·.

~

,..,. -....,

••

\,i

•#

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

...

.,• . :"""'!
•

...

Civil Penalty Proceeding
Docket No. BARS 78-474-P
A.O. No. 15-02079-02021V

v.
Ken No. 4 Underground Mine
PEABODY COAL COYJ.PANY,
Respondent
DECISION
Appearances;

Leo J. HcGinn, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the
petitioner;
Thomas Gallagher, Esquire, St. Louis, Missouri, for the
respondent.

Before:

Judge Koutras
Statement of the Proceeding

.This is a civil penalty proceeding pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on June 19, 1978, through the filing of
a petition for assessment of civil penalty, seeking a civil penalty
assessment for five alleged violations of the provisions of certain
ID<'.ndatory safety standards. Respondent filed an answer and notice
of contest on July 3, 1978, denying the al.legations and requesting a
hearing. A hearing was held in Louisville, Kentucky, on May 15, 1979,
and the parties submitted posthearing proposed. findings, conclusions,
and briefs, and the arguments set forth therein 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 implementing
regulations as alleged in the petition for assessment of civil penalty filed in this proceeding, and, i f so, (2) the appropriate civil
penalties that should be assessed against the respondent for the
alleged violations based upon the criteria set forth in section llO(i)

1155

of the Act. Additional issues raised by the parties are identified
and disposed of in the course of thi_s 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 800d 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 lfarch 9, 1978, 30 U .s.c. § 801 et seq_.

2.

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

3.

Commission Rules, 29 CFR 2700.1 ~ seq.

The parties stipulated to jurisdiction, and that the respondent
is a large mine operator. The mine in question produces .5,500 tons
of coal per day and employs a total of 320 men.
DISCUSSION
Section 104(c)(2) Order No. 1 TML, December 20, 1976, citing
30 CFR 7.5.402, states:
Rock dust was not being applied up to and within
forty feet of the working 1- laces (faces) in the Nos. 1
thr.u 6 entries on the roof, ribs and floors and connecting crosscuts beginning at the unit ratio feeder and
extending inby for approximately 150 feet on the No. 3
unit 8 H.w. (I.D. 023) responsibility of the 1st and
2nd shift foreman. Samples were taken.
Petitioner~s

Testimony and Evidence

MSHA inspector Thomas M. Lyle, testified that he conducted a
routine spot inspect.ion of respondent's mine for a period of 15 actual
inspection days, from December 20, 1976, to March 4, 1977. The mine
is located in the Kentucky No. 9 seam, has a coal height of approximately 56 inches, and conventional mining is conducted on six active
units operating on two production shifts and a maintenance shift.
Conventional mining equipment is used for the noncontinuous miner-type
activiU.es such as cutting, drilling, shooting and loading.

1156

Inspector Lyle issued his order upon observing that: the floors
of all six entries were black. The ribs and roof were spotty, and
wet dust had been .sprayed on in streaks. The area involved consisted
of the No. 1 through No. 6 entries and the crosscuts begi.nni.ng at the
unit ratio feeder and extended for approximately 150 feet. The unit
ratio feeder was approximately 170 feet awvy from the face~, was
located at the belt dumping on the belt, and for some 150 feet inby
from this point no rock dust had been applied. He walked up "lnd down
and examined each of the entries, and walked by the 8 or 10 crosscuts
and looked at them. Coal was being run at the time he walked the
entries and crosscuts, and he saw no evidence of any dry rock dust
being applied, but the roofs and ribs appeared spo'tty and had been
sprayed with a slurry solution of rock dust and water, which does not
take the place of regular rock dust, and it will dry out (Tr. 8-21).
Inspector Lyle testified that the mine is usually dry rock dusted
and he had never previously found it in such a condition. The lack of
rock dust was readily observable and obvious, and anyone could see it
visually. He took band samples .in the usual prescribed manner and the
laboratory results are reflected .in Exhibit G-6. The three band sample results indicated 31, 30.7, and 32.4 percent incombustible rock
dust content at the places sampled. The law requires 65 percent in
intake air and 80 percent in the return. He took samples to substantiate the violation, although he ~s not required to do so since the
area cited was obviously black through visual observation. He was
accompanied during his inspection by assistant mine manager Ken Large
who admitted that the condition of the section with regard to rock
dusting was the worst 'he had ever seen (Tr. 21-26). The possible
results o:f allowing the condition to go on, is that if a cutting
machine had been at the face of coal and hit a pocket of methane gas
and ignited, an explosion could occur since there was no dry rock
dust on the roof, ribs and floor of the mine.
With respect to the spots of wet dust that had been applied, the
inspector stated that this would not have ·any effect on the seriousness of an explosion or an ignition, and indicated that it would not
in any way suppress an explosion if there had been an ignition at the
face. Once there is an ignition, the float coal dust will not stick
because the area becomes very slick, thus the explosion is enhanced.
In the event an ignition or· explosion were to occur in the area during
the production shift, approximately 12 men could have been involved
in such an explosion. The condition was such that the operator either
knew or should have known that it existed since the men advanced
approx].mately 50 to 60 feet per shift during the normal mining cycle
and there were approximately two or three shifts involved. He
examined the preshift books, but ·could see no indication that the
conditions had been reported and noted. The foreman on the shift
was responsible for examining the area on preshift and onshift examinations to see whether or not rock dust had been applied. The lack

1157

of rock dusting is visibly obvious since an area which has been
rock dusted is less black than an area which has not be~n rock
dusted. The mine floor was entirely black, and the roof and ribs
were spa~' where they had been sprayed with the wet''ctust
(Tr. 26-3lf).
On cross-examination, Inspector Lyle confirmed that his notes ·
stated that:
[R]ock dust was not being applied up to and within 40 feet
of the working faces in Nos. 1 through 6 entries on the
roof, ribs, floors and connecting crosscuts beginning at
the unit ratio feeder and extending inby for approximately
150 feet on the No. 3 unit, I.D. 0288 Nortln~est. Samples
were taken to substantiate this.
He explained the procedures he followed in taking his band samples,
and reiterated the hazards presented when inadequate rock dust is
applied. He also described the areas where he took his samples (Tr.

38-53).
Inspector Lyle testified that he found several other violations
on the section on the No. 3 unit, which he told Mr. Large and the
section foreman a.bout. He wrote a citation for n violation of
75.301-1 for. insufficient air at the working face where it is either
being cut, mined or loaded; 75.301 for insufficient air in the last
open crosscut on the return side; 75.304 for inadequate onshift examination; and a section 75.401 float dust violation. He is not sure
exactly how long he was on the unit, but he was there for a few hours
(Tr. 53-54).
In res2onse to questions from the be;nch, Ins,pector Lyle testified
ti1at the previous four citations he issued on December 20, including
a fifth one for. an inadequate line curtain, 7 5. 302-1, were all section 104(b) notices. One was issued at 6:15 p.m. and was abated at
6:25 a.m.; the second issued at 6:20 p.m., and was abated at 6:30; the
third issued at 6:31 p.m. and was abated at 6:45; and the fourth was
issued at 6:40 p.m. and abated at 7 p.m. The order in issue here was
issued at 7 p.m., therefore, all of the previously-mentioned conditions and citations had been abated prior to the issuance of the
order (Tr. 54-57). He further testified that wet rock dust is normally used to comply with section 75.401 in areas of less than 40 feet
of face in order to keep the dust down. Assuming that an operator
used wet dust to totally rock dust an area such as the roof, ribs, and
floor, and after doing that it appeared white, Mr. Lyle testified that
he wou~d not accept that as being in compliance with 75.402, even
though the incombustible content may be high and even though it
completely whitens the area (Tr. 57-58).

1158

Respondent's Testimony and Evidence
Myron D. Stewart, employed by respondent as a face foreman, testified that on the day in question w~ile he was at the face of the
mine, Mr. Large accompanied Inspector Lyle to the face where he met
them and the inspector took an air reading. He does not know what
the air reading was since Inspector Lyle did not tell him, and he
confirmed that the inspector issued a 104(c)(2) order that day for
lack of rock dusting. According to Hr. Stewart, rock dusting had
been done that day, but it did not meet the inspector's approvRl
since the inspector had stated that wet dusting is not permissible
(Tr. 68-71).
Mr. Stewart identified a sketch he made of the rooms in question,
and in describing the procedure for using a wet duster, he indicated
that a wet duster is used because it covers evenly, men do not have
to breathe the dust that is accumulated by throwing it in by hand,
and that such dusting can be done during the ~reduction shift. In
Mr. Stewart's experience of using a wet duster, it covers evenly
rather than spotting since it is liquid in forin and it adheres to the
roof and ribs. In his opinion, one of the advantages of a wet c:luster
in terms of safety to miners is that they do not have to breathe in
the air as when it is being applied by hand. With regard to the
ability of dry dust as opposed to wet dust to cover an area, in his
opinion, wet dust covers better. Mr. Stewart also stated that
Exhibit R-2, which is an onshift production report for the period of
December 17 to 20, indicates that rock dusting was permissibl.e on the
unit, and if it were not, the report would have so indicated (Tr.
73-80).
0

In order to abate the order, the area was rock dusted by hand,
and then wet dusted. He was with Mr. Lyle the entire time that he
was on the section, and he never heard Mr. Large make any remarks
with regard to the condition of the rock dusting on the section,
either in his presence or in Mr. Lyle's presence (Tr. 80-83).
On cross-examination, Mr, Stewart testified that he first saw
Mr. Lyle atthe face, and tl"lat coal was being produced at that time.
Mr. Stewart did not learn that an order had been issued for a violation of 75.402 until he arrived outside of the mine that night. He
stopped production in order to comply with the inspector's request to
apply more rock dust, and although he did not know that au order had
actually been issued, he ordered that the area be re-rock dusted since
he had been instructed to comply with the requests of MSHA inspectors
in order to make the section a better or more safe place to work. He·
believes that the samples that were allegedly taken by the inspector
are a fabrication because no samples were taken while he was on duty
that night (Tr. 84-92).

1159.

Mr. Stew::irt fur.ther testified that the distinction between wet
dusting and dry rock dusting is that the former adheres and covers
a wide area and it can be applied during the production shift, while
approximately 50 percent or more of dry reek dust· falls off as it is
·applied by hand. The wet-dusting apparatus is located on the coal
drill, and after the drilling is done, the slurry pump sprays the
ribs and roof. According to Mr·. Stewart, rock dust is required to be
maintained through the active areas within 40 feet of the face in
order to comply with section 75.402 (Tr. 89-95).
Mr. Stewart stated that the colot of the roof, ribs and floor
within 20 feet of the working face was white •. With respect to the
inspector's testimony that from 150 feet out to the face, it was
dark in color, Mr. Stewart stated that it could not have been since
the three entries had been driven approximately a week before and
they had been rock dusted a long time ago; thus it was all white
throughout the six entries and all the crosscuts 150 feet outby to
the face. However, the feeder location would not be completely
white because when the cars dump coal, they spill a small amount,
thus making the area a little dirty; however, that is shoveled and
cleaned up. Mr. Stewart vividly recalled the condition at the time,
although he did not take any note[. Although he did not see a red
tag being put up at 7 o'clock when the order issued, he knew where
rock dusting had to be done in order to abate the order since the
inspector stated that they would have to go back to the feeder and
rock dust over ~iliat had been done before since it did not meet his
approval (Tr. 98-101).
Mr. Stewart indicated that the ribs, roof and floor had been
rock dusted before the order issued because that is the normal procedure as the mining cycle advances. Wet rock dust was used on the
ribs and roof, ·and dry rock dust was used on the floor, and that is
the procedure that was followed in the mine at the time the order
issued. Dry rock dust is not applied to the roof or ribs any place
in the mine unless a shuttle car hits a rib and knocks it off, and
if they had to use dry rock dust, production would have to stop (Tr.
101-111). He had never previously been cited for using wet rock dust
(Tr. ll2).
In response to bench questions, Mr. Stewart testified that he
was with the inspector the entire time only after he reached the face.
Since the inspector had to .walk through the a·reas cited to reach the
face, it is possible that he stopped and took samples. It was possible
that Mr. Large and Inspector Lyle had some conversations while they
were walking to the' face area, and Mr. Stewart would not have been
aware of this (Tr. 113-115).
Kenneth R. Large, mine account.~_;i.g engineer, testified that on
December 20, 1976, he was acting mine manager on th~ second shift

1160

and that he and Mr. Lyle met in the office after which they went to
the 8 Northest unit where they first encountered Section Foreman
Stewart at the face. They then went .across the room and the inspector pointed out several things that needed to be done, all of which
were taken care o_f immediately and. then they went down to the last set
of r6oms that had been worked out. Inspector Lyle stated that he
would not accept the wet dusting because it was inadequate, and he
indicated that it was unacceptable from the "rosco 11 to the face, and
from the feeder, which was three breaks, but, he did not indicate
the reasons why he would not accept wet dusting. He then indicated
that he was going-to issue an order, which he did when he went outside the mine. Rock dusting had been done to about 20 feet to the
face, and Mr. Large did teli Inspector Lyle that the area could have
been dusted better, but he did not state to Inspector Lyle that it
was in the worst condition that he had ever s.een the sec;:tion in,
·although the inspector had indicated such in his notes (Exh. G-7).
There i~ere several black places, some of which resulted from dust
that had been applied over loose coal and then had fallen off, prob-:
ably because some cars had hit the ribs and knocked it off. He and
Mr. Lyle were on the section for approximately 1-1/2 to 2 hours; he
was with Inspector Lyle the entire time, and Inspector Lyle never
left his presence. He did not see Inspector Lyle take any band
samples, and while he carried a plastic brief ~ase with him which
was approximately 3 to 4 inches by 1 to 2 feet, in his estimation,
Inspector Lyle did not have on his person the equipment necessary to
take a band sample (Tr. 117-127).
On cross-examination, Nr. Large testified that from the first
open break outby the face to the "rosco," the six entries were adequately dusted; however, the first open break had just gone through
and it had not been dusted. At the face, the area was black, but
out by from the ratio feeder inby, it was all white. The two entries
closest to the "rosco" would have been dry dusted because the break
had been opened only since they moved in the set of rooms. Two of
the breaks were already there and had been dry rock dusted. The
floor had been rock dusted but one probably could not tell whether
the roof and ribs were wet dusted because frequently when dry dust
has been applied, it will sweat and one cannot tell if it is dry
dusted or wet dusted. Wet dust is usually applied at the face, and
one of its characteristics after it is applied is that it becomes
hard and then caked, When the men pull out a set of rooms, the
third shift will come in and move everything out and dry dust it.
Wet dust suppresses the dust, and Mr. Large did not know why it would
not serve the same purpose as rock dust in relation to suppression of
fire or explosion. In his opinion, the purpose of 75.401 is to abate
dust at the working face and the purpose of 75.402 is to prevent pro· ~agating an explosion. Although wet dusting is used at the face to
suppress dust for the health and convenience of the workers, it is.
necessary to add dr.y rock dust afterwards because after it gets older,
it will deteriorate (Tr. 127-137).

1161

Mr. Large testified th1at he did not see the inspector red tag the
area, although that is the normal procedure when production is shut
down. Although he was involved in the abatement of other violations
at the time, he told someone else to take care of abating them (Tr.
138).
Inspector Lyle was recalled in rebuttal, and testified that wet
dusting is routinely done in the mine at the face area to suppress
dust and that after the wet dust is applied, it is routine practice
at the mine to dry rock dust the areas. In his opinion, the distinction between the purpose of wet dusting and dry rock dusting is that
when wet rock dust is applied to the roof and ribs·, it will dry and
become a caked surface, and if an ignition should occur in the mine,
it will not disperse into the atmosphere to suppress the ignition.
The application of a wetting agent or wet dust does not satisfy the
requirements under 75.402. The difference between the definitions
of "rock dust" and "wet dust" is that rock dust would go through a
20-mesh per linear-·inch sieve since i t is dry, while wet dust will
not, and wet dust will always become dry and adhere and form into a
cake, while dry dust will not form into a cake. He referred to the
appropriate Inspector's Manual references with respe.ct to the acceptable uses of wet rock dust (Tr. 141-146).
Inspector Lyle further. testified that he took the samples indicated in the normal manner in which he was trained to do so and that
no one observed him ts.king them. Although Hr. Large accompanied him
in the mine on the section, they were not together all of the time
since Mr. Large was involved with abating other violations that he
had issued, and durin3 the time he was not with Hr. Large, he took
the samples. He had the necessary equipment for taking the samples
in his brief case which is approximately 24 inches long and 18 inches
wide and a small plastic bag. The equipment that he uses to take the
samples is about 8 inches by 8 inches and folds up. The handle to
the brush is cut off and the screen part drops down inside the tray
and the little scoop also fits inside the tray so that the eqiupment
contains its elf. Re also had other equipment with him on that day
such as anemometers or smoke tubes (Tr. 147-149).
In ·response to bench questions, Inspector Lyle stated that it was
customary in the mine to use the wet rock duster in the face area at
less than 40 feet, but that in all areas up to 40 feet, dry rock dust
is used with it with a Bantam duster. Respondent had been shortcutting
and using the wet rock-dust solution to rock dust areas that are supposed to be dry rock dusted. The total weight of the samples taken was
approximately 1 pound, and he followed the standard procedure and did
red tag the section when he issued the order before going to the surface. Mr. Large and the section foreman were on the section, and he
informed them that he was issuing a 104(c) (2) order for inadequate
rock dusting, 30 CFR 75.402, and he was told that the cited condition
would he remedied. He then hung his closure tag, returned to the surface, and went back the next day and abated the order (Tr. 154-157).

1162

Section 104(c)(2) Order No. 1 'IML) February 16, 1977, citing
30 CFR 75.200, states:
There has been a violation of the approved ro-of control
plan dated October 197 6, No. 1+ unit 11 N. W. (I. D. 027) in
that the connecting crosscut between the Nos. 4 and 5
entries had been holed through (cleaned up and rock dusted)
creating an intersection and had not been bolted (pinned)
on the right side facing the No. 4 entry face and had been
advanced, cut, drilled, shot and preshift examined, permitting workmen to advance inby the unpinned intersection
to the working face. Responsibility of Jim G"reer and E. A.
Conn, foremen.
Petitioner's Testimony
Inspector Lyle confirmed that he issued the order during a production shift after coming to a point between the Nos. 4 and 5
entries, where the connecting crosscut had been opened up creating
an interesection. The No. 4 entry had roof bolts installed just off
the rib) but the rest of the crosscut in the area on the open end was
not bolted, nor was it timbered or supported with any other means of
permanent supports. The crosscut had a total of three bolts, and he
examined the roof outby the bolted area and saw no evidence at all of
pinning. The roof control plan had been violated, namely, page 6,
item 13. The face was at the top of entry No. lf, and based on the
markings of the preshift examiner and the location of the face, he
realized that a cut of coal had been taken, advanced from the adjacent entry, and then holed through into the No. 4 entry. The precise
violation of the roof-contra 1 plan was the fact that persons had gone
inby into an unpinned section. Under the roof-control plan, the
crosscuts are approximately 20 feet in width, and roof bolts are to
be installed 3 feet from the rib line on 5-foot centers across; thus,
approximately 15 or 16 feet of roofing was left without support. In
his opinion, this would be a serious viola-tion because roof falls constitute "the number one killer in coal mines." Most of the falls in
the No. 9 top in the Western Kentucky area occur in the crosscuts
across the intersection, except when crosscuts are completely staggered. Unstable roof conditions are characteristic of mines in the
Kentucky No. 9 area, which is the area in which the Ken No. 4 Underground Mine operates. The main roof at Ken No. 4 is composed of gray
shale with rock bands, and the immediate roof is dark shale slate
which tends to crack and break up, and it will slough and fall off.
If a roof fall did occur, it would fall in the crosscut and out into
the No. 4 entry, and wo~ld most likely directly fall on one person,
although all workers on a section would be exposed to the hazard (Tr.
158-171).
With respect to the question of negligence, Inspector Lyle stated
that the operator either knew or should have been aware of the condition since roof bolting is done during the normal mining cycle, and

1163

the prcshift examiner and the person who made the onshift examination
should have noted the condition. Knowing that it was unbolted, men
should not have gone inby unless they were going in t.o install temporary supports or to make rt gas check. Given the physical distances
involved, and the physical s~tup, he would estimate that the condition
existed from the previous shift. He arrived at this conclusion from
reviewing the condition and from the statements that Mr. Greer made
to him that he had informed the foreman on the previous shift about
it the day before (Tr. 171-174).
On cross-examination, Inspector Lyle testified that as he was
crossing the unit, accompanied by Mr. Conrad Bowen, he observed the
unpinned intersection, which was approximately 16 feet by 9 feet.
The entry itself was pinned, but the area that was unpinned was at
the edge of the crosscut. He did not observe any workmen in the area
cutting, drilling, shooting, or preshift examining. Assuming the
mining cycle had holed through the previous day, Hr. Lyle did not
know whether the area would have been supported and then advanced
beyond the place where the coal allegedly had fallen since there
could have been a breakdown (Tr. 174-181).
In response to questions f!:_om the bench, Inspector Lyle stated
that he did not see any coal being cut in the entry, but coal was
being run on the section, and there was no cutting machine in the
Nos. 4 or 5 entries. Bolting had been accomplished beyond the area
which involved the citation, and he received no explanation as to why
the particular location cited was not bolted, but he ventured a guess
that "they just forgot to bolt i.t" (Tr. 181-183).
Re~ondent's

Testimony

James Greer, assistant mine manager, testified that he was the
section foreman on February 16, 1977, and he confirmed the existence
of an unpinned roof area, but stated that it was on the left rib by
the break between Nos. 3 and 4, and not between Nos. 4 and 5. There
were approximately three bolts missing, but the rest of the intersection was pinned. He testified that Mine Manager Bowen had just discovered the unpinned roof area and he was just ahead of the inspector
looking for possible violations. Mr.· Bowen instructed him to bring in
the roof bolter when Inspector Lyle arrived on the scene. The preshift report and a fire boss report of the 17 Northwest section for
February 15 and 16 showed no indications of any unpinned areas.
Mr. Greer denied telling Mr. Lyle that he had informed the previous shift foreman about the unpinned intersection. In explaining
the fall of coal in the entry and the three missing roof bolts,
Mr. Greer stated that could have been an overhang that the cutting
machine or the dr1llman had either cut or shot off. In his opinion,
it is possible for an overhang to .have been present and left up and
still adwmce the entry, and this could explain why Mr. Lyle thought

1164

that the entry had been advanced. The fall of coal was directly
across from the crosscut at the face o.f No. 3 (Tr. 181·-194 ).
On cross-examination, Mr. Greer stated thnt he di.d not see any
"No bolt" sigi1s in the area. He considers a dl.i.unmy top to be stable,
especially when one take8 tests holes with a roof bolter and no cracks
are shown. However, there is a difference between a drummy top and
sound top; the sound is heavier on a sound top than on.a drummy top
and a drummy top is more likely to fall than a sound top (Tr. 194-

208).
In response to ~Jest.ions from the bench, Mr. Greer testj_fied that
production was not stopped at the mine at the time the inspector cited
the condition, nor was any closure sign put up. With respect to the
inspector's testimony that he believed that the alleged violation
occurred between the Nos. 4 and 5 entries, Mr.· Greer stated that no
one supplied such informat:i.on to the inspector, that he confused the
entries, and this was very easy to do. Thus, he and the inspector
are actually talking about: the same alleged condition ·and the same
area of unsupported roof (Tr. 210-211).
Conrad Bowen 2 assis~ant mine s~rintendent, testified that he
accompanied Inspector Lyle while he was on the section; however, he
did not stay in Inspector Lyle 1 s presence all the time. Hr. Bowen
found three bolts missing on the left rib going in the No. 3 entry
and he instructed Mr. Greer to install them. Although he first testified that he did not see any "No bolt" signs, he later stated that
there was such a sign. When he discovered the bolts were missing,
M.r. Greer was approximately in the next intersect ion behind· him,
together with Mr. Lyle. With respect to the condition of the niine
top, Mr. Bowen stated that he has "seen a lot worse" and that the subject mine has the best No. 9 coal that he has ever seen. It was he,
rather than Inspector Lyle~ who discovered the unpinned area.
Mr. Bowen stated that according to the roof-control plan, it is
not permissible to advance 10 feet inby a crosscut until it is opened
for ventilation, and in his opinion, the fall was left there until the
crosscuts went through and the unpinned area resulted when a sump
machine was cutting a breakthrough. Once the breakthrough is made,
and the feeder is in the next entry, the inby corner is cut off when
one comes back through with a shuttle car. Sometimes, an outby corner is cut off in the next entry in order to allow the shuttle car to
turn the curve easier. Since the intersection was pinned all the way
through except for three bolts, he believes that it must have been cut
from both sides (Tr. 213-220).
On cross-examination, Mr. Bowen testified he tries to proceed
ahead of an inspector so that if he sees any violations, he can have
them abated before the inspector sees the conditions. He did not conceal the con<l:Lti.on from Inspector Lyle, but rather, gave instructions

1165

for the bolter to be brought in since they had an area \·Tith unsupported roof, and this was done in the inspector's presence. He did
riot believe that the condition was a violation since· the "No bolt"
signs we.re posted. If i t had been a violation, the fire boss would
have, in all likelihood, written it up in the preshift book. Since.
the signs were posted, ~lr. Bowen d.id not write up the condition.
Although the inspector described the unpinned dimensions as 16 feet
by 9 feet, Mr. Bowen believed the area was 5 feet 5 inches by 8 feet,
and if there were three bolts missing, approximately 15 feet of roof
area was unsupported (Tr. 220-226).
·
In response to questions from the br,nch, Hr. Bowen testified that
he did not feel that the unsupported roof was a violation because it
was marked so that miners could see that it was unsupported, and, in
the regular mining cycle, v..7hen the pinner comes in, he can pin it. No
one is to work in an area past a sign or marker designating an unsup-.
ported roof, with the exception of pinnermen. The signs used to designate non.bolted areas are approximately 10 to 12 inches long an.d
approxim.o.tely 4 inches wide, and they are not red-tagged, dangered-off
signs, but rather simply state "No bolts." Mr. Greer stated that he is
familiar with provision 13(a) of the roof-·control plan which requires
that a conspicuous sign be suspended from the roof, but that the provision did not come into effect until after the order was written.
(The term "conspicuous sign" means a stick with fluorescent tape on
it.) According to Hr. Bowen, however, on the day the citation issued,
there was p:i:esent a sign to warn people that this was an unbolted
area, but he did not point the sig;i. out to Inspector Lyle nor does
he know whether'° Mr. Lyle saw the sign (Tr. 226-230).
Petitioner's Rebuttal Testimonv
In~cto~_~yle stated that approximately eight or nine roof bolts
were missing from an area approximately 16 by 9. square feet. He did
not see any conspicuous signs displayed, although such were required.
If three roof bolts along one rib w~re missing in an ent-ry or crosscut which otherwise was adequately pinned according to the roof- .
control plan, he would most likely have issued a 104(b) notice for a
viola.tion of the roof-control plan rather than the lOl+(c) notice that
he issued. He informed the mine manager and face foreman of the order,
and prior to the tirne he examined the roof, he had not been informed
by anyone from management of the condition. If Mr. Bowen had seen the
condition prior to his observation of it, he did not realize it, and
he confirmed he did not shut production down in the entire area and
that he remained on the site until it was abated (Tr. 231-236).

On cross-examination, Inspector Lyle confirmed the dimensions of
approximately 16 feet by 9 feet, and stated that the 16-foot dimension
would be from one rib of the crosscut in the direction of the other
and th2 9 feet would be in the same direction as the crosscut. The
ribs J.n a. c:rost>cu:: are approxir-..ately 20 feet across. He observed the

1166

.;~

unpinned area from under the bolted ::J.rea in the entry, and there were
approximately eight bolts missing (·r-c. 237-242).
In respon_se to _questions from the __bench,' Inspector Lyle stated.
that a sign previously referred to by one of the witnesses should have
been at the edge of the unpinned area, rather than--OUt in the area,
but that he did not see such a sign. It is acceptable mine practice
to put up a white sign with red lettering on it that says "No bolts"
whenever there is unsupported roof. The presence of a sign would not
mean that there was no violation or that there was no hazard because
the Ken No. 4 Underground Mine had a roof-bolting plan which required
that all areas in the mine be bolted. If subnonnal conditions exist
in a mine, then it is necessary to take steps other than the normal
precautio.nary measures, ~·_g_., install longer bolts, cribs;. crossbars,
etc. The discrepancy in the entry numbers can be attributed to how
the crosscuts are numbered from left to right or right to left, and
when he asked about the.entry, he was told that it was the No. 4
entry, and the area he circled in his notes was intended as an
approximation. He does not know how many bolts it took 'to abate the
citation, since he did not count, but including the time it took to
move the equipment over, it took about an hour to correct the condition (Tr. 244).
Section lOL~(c)(2) Order No. 1 THL, February 28) 1977, citing
30 CFR 75.301, states:
The quantity of air reaching the last open crosscut
between the intake and return pillars in the developing
entries of the No. 5 unit, 2 nd S.W. was only 7,900 cfm
during the production of coal when measured with an
approved anemometer and smoke tube. Responsibility of
Don Ramsey, foreman.
Inspector Lyle testified he was accompanied on his inspection by
Mine Manager Bowen and Section Foreman Ramsey. He issued the order at
9:50 a.m. after he had observed and written up other violations, then
proceeded to the track entry, and then to the No. 1 intake entry where
he meas°ured the air. According to his measurements, the air in the
intake in the connecting crosscut between the Nos. 5 and 6 entries on
the return pillar sides was 11,780 cubic feet per minute. When he
took the readings described in the order, he was in the connecting
crosscut between the Nos. 5 and 6 entries on the return pillar side.
When he reached the crosscut, he took three air readings with his
anemometer and found the air to be below 9,000 cubic feet of. air. The
first reading, which was taken along the center of the crosscut, measured 6 ,840 cubic feet per minute, the second reading was 5, 700 cubic
feet per minute, and the third reading was 7, 125 cubic feet per minute. The variations in the anemometer readings are explainable by the
fact that coal production was going on at the time and curtains were
being fanned and moved around so that air was moving up and down. At

1167

the time he took the readings, there was measurable dust in the air
in the crosscut, but he did not know how much. He was particularly
interested in the air at the mine because there was a continuing problem with maintaining sufficient minimum air requirements, and he had
previously written several violations at the mine regarding the sufficiency of air. Further, an inspection team from Arlington had visited
the Ken No. 1+ Underground Mine and had stated in their report that the
mine was operating on marginal air.
In addition to taking readings with the anemometer, Inspector
Lyle testified that he took three smoke tube readings of the area.
He obtained a reading .of 7, 600 cubic feet of air on the first smoke
tube reading~ 7,410 cubic feet of air on the second, and 7 ,885 cubic
feet of a-i.r on the third which he cited as 7, 900 cubic feet (and
which was the highest air reading). No one assisted him in taking
either the smoke tube readings or the anemometer readings. Section
75.301 requires that the minimum quantity of air reaching the last
open crosscut in any pair or set of developing entries in the last
open crosscut and any pair or set of rooms shall be 9 ,000 cubic feet
of air per minute (Tx·. 249-260).
Inspector Lyle considered the violation to be serious because the
low air readings had to affect the air at the working face. He cited
a violation at the No. 5 face for low air readings some 20 minutes
earlier. He thane could build up and not be swept away, and the mine
was under a section 103(i) inspection requirement. He believed the
operator was aware or should have been aware of the condition because
of the continuing vent:i.lat:i.on problems and mine management had discussed the possibility of putting in additional raise holes to
to improve ventilation. The unit was subsequently abandoned after
abatement was achieved because of ventilation problems (Tr. 260-269).
On cross-examination, Inspector Lyle confirmed that the air reading on the intake- side was 11,780 cfms (Exh. G-19). He also confirmed
that he took three air readings in all, and when he tool<. the first
reading, he informed respondent that according to his anemometer, the
amount ~f air present was low. The first reading was taken in a traverse fashion, .!..·~·, he went from one rib to the other rib in a back
and forth manner. With respect to the second reading, which was taken
approximately a quarter of the way in between the crosscut, he took
it in the traverse style. When he took the third reading, he backed
up to past half of the entry, to the center part of the area.
After he took the three readings and calculated that he did not have
sufficient air~ he then took three smoke tube readings. He performed
the calculations on paper (Exh. G-20), the same day that he took the
readings, rather than at a later date. The correction factor that he
used on his anemometer was 20 percent, and he calculated the area of
the intersection with a tape l:i.ne (Tr. 274-288).

1168

In response to questions fro:n the bench, Imipector Lylo. testif"led
that he 11~<l-i~1<licated on r&'hnit c;·.:-.I9- that-t-her.e were 11,1so c£ms of
air coming in the intake. After the line curtai.n was insta.lled, the
highest reading that he came up with was 7 ,885 cubic feet. He does
hot know what was causing the low air n~ading at that point because
at the time he was· tak.ing air readings :Ln the last open crosscut, the
operator was working on the problem. When the air came up to above
9,000 cfms, he abated the notice. He did not find any signi.ficant
amounts of methane; and lwd he found such, he would have issued
an imminent danger order (Tr. 289-293).
Respondent's Testimony_
Dona.ld Ramsey testified that he was working as the for~man on the
2 Southwest, N0.-5 unit, on the day shift on E'ebn:ary 28, 1977, and
first met with Inspe<'.tor Lyle at the transformer Hhere the inspector
was checking for violations. after which they then went to the face
area where coal was being loaded, and the loader opc.rator appeared
and told him that he had torn down part of the check curtain and that
he needed a hammer to repair it. His helper was coming across from
behind hlm with a hammer and he helped him repaiJ~ the curtaino During this time, Inspector Lyle was in a stationary position ta.king an
air reading in the last open crosscut, approximately 80 feet away on
the other side of the loader, but he was not taking a traverse reading. The curtain was down, but was repaired within 2 or 3 mi nut es,
after which time Inspector Lyle advised him that he did not have
enough air, and in Mr. Ramsey's opinion, the air reading that Inspector Lyle based that statei:ient on was taken when the curtain was down
(Tr. 294-300).
At the time Mr. Lyle ordered the unit closed, there were 8 to
12 men working inby the last open crosscut, and the check curtain
was down for approximately 5 minutes. Some of the common causes of
check curtains being torn dovm c::re blastin~ or shooting coal down,
which, in turn, tears them down, and people walking under the.m. The
general rule is that if s01neone tears d.own a check curtain, he puts
it back up, and the loader- operator that he encountered was looking
for a hammer (Tr. 302-·308).
On cross-examin~tion, ~1r. Ramsey stated that although he does not
remember going to the intake with Insp2ctor Lyle, he remembers walking
across crosscut Nos. 4, 5 and 6, but he does not n~member whether any
violations were cited at the time. He confirmed that a 104(b) notice
was issued the same day, citing a violation of 75.302-1 for failure to
provide a line brattice on the face of the No. 5 entry where coal was
being loaded, but he remembers it being the No. 6 unit rather than the
No. 5, and recalls that the line curtain was down several times that
morning. He accompanied Inspector Lyle across face Nos. 4, 5 and 6
and although the inspector. states in his order that he took both anemometer and smoke tube readings at the face, he does not recall any

1169

smoke tube ·readings having been made by the inspector at unit No. 5,
although he remembers that the inspector took two anemonk~ter readings
at the face (Tr. 308-315).
Mr. Ramsey indicated that after Inspector Lyle informed him that
the air content was low, he went to the intake entry and took his own
air reading, after which he returned to the No. 5 unit, where the
inspector was. Mr. Ramsey did not take an anemometer reading in the
No. 5 crosscut because he did. not think it was necessary since he
knew he did not have sufficient air because the loader had torn the
curtain down. Although it took 2 to 3 minutes to rehang the line
curtain, and the inspector told him that he then had sufficient air,
Hine Manager Brown decided to close the unit down because it was slowing production to keep 3 ,000 ·cubic feet of air at the face and putting
9,000 cfrus out in the other area. He did not question Mr. Brown's
decision to shut down the unit, and he does not recall how long the
unit was abandoned (Tr. 316-329).
Inspector Lyle was recalled in rebuttal and testified that after
he issued the order, he continued to take air readings in the last
open crosscut. He then walked around to the return side in order
to check to see if they had their stoppings up as required by the
ventilation plan which calls for permanent stoppings up to and
including the third open crosscut outby the face. He walked back
up to the No. 5 entry and checked to see if they had a block curtain
up in the back part of the entry. He continued to take air readings and when the air increased to 9,600 cfms, he abated the order at
10:30 a.m~, after which time the unit was abandoned. The line curtain had be8n replaced when he started taking his first air readings.
In his opinion, the cause of the low air was not the check curtain,
but resulted by the operator trying to course the air through the
mine around falls because the mine was in dire need of an air shaft
o".' the boring of a hole of some kind to provide better ventilation
(Tr. 336-338).
In response to questions from the bench, Inspector Lyle stated
that the other two citations that he issued (Exhs. G-21 and G-23) were
both abated prior to the subject order. Although Mr. Ramsey testified that they were loading coal in both entry Nos. 5 and 6, Inspector Lyle testified that this was not true since it was not permissible
to have two loaders on a section loading in the same entries or adjacent entries. It was actually the No. 3 entry that was being loaded
and the No. 5 entry is the one he cite~. Inspector Lyle also stated
that he asked Mr. Ramsey what the number was of that particular entry
and Mr. Ramsey told him that it was No. 5. He further stated that he
took his air· readings between Nos. 5 and 6 on the return side and that
there a·re no other entries past the No. 6 entry (Tr. 339-340).

1170

Section 104(c)(2) Order No. 1 TML, March 1, 1977, 30 CFR 75.301-1
The quantity of air reaching the No. 5 entry (crosscut to the left) working face where coal was .being loaded
by T. C. Williams with a Joy loading machine was insufficient enough to measure with an approved anemometer or
smoke tube during the loading cycle on No, 6 unit (ID 029)
3rd S.S. Responsibility of Pat Sturgill, foreman.
Petitioner's Testimony
Inspector Lyle testified that in addition to the subject order,
he issued other notices of violation that day.·· He issued the subject 104(c)(2) order for failure to maintain sufficient ventilation
while loading coal, and there was no curtain present while the loading was being done. He started to take air readings, but could not
get his anemometer to work on either one of the rib lines or out in
the entry, despite the fact that the ane.n:ometer was functioning. He
then tried four or five times to take a reading with a smoke tube but
could not get any measurement of smoke traveling and he then concluded
that there was not sufficient ventilation or perceptible air movement
to be measured with an anemometer or a smoke tube. While he was taking the tests, the men had stopped loading (Tr. 343-348).
Inspector Lyle considered the violation to be serious, and he had
previously written a notice for failure to use water to keep the dust
down to minimum and allowable limits. Since there was no curtain to
course the ventilation into the working face and there was no percep'""'
tible air movement, if methane had been encountered, along with excessive dust, a serious methane ignition and dust explosion could have
resulted. In his opinion, the operator should have been aware of the
condition because a foreman is present on the section at all times and
it is his duty to operate the unit and to insure that a minimum of
3,000 cubic feet of air is maintained at the face whenever coal is
being cut, mined or loaded. It was visibly obvious that there was not
a sufficient amount of air (Tr. 350-352). When he first walked into
the entry, the loader operator was there with the loading machine, and
no wing curtain was installed. Had a face ignition occurred, he estimates that at least 12 men would have been exposed, .since there are
approximately 12 men on a section (1'r. 353).
Respondent's Testimony
Mr. Pat Sturgill, day shift section foreman, 3 Northeast section,
testified that the wing curtain was takei1 down in order to clean the
ribs approximately 4 or 5 minutes before Inspector Lyle walked past
the area. He does not know specifically whether Inspector Lyle saw
Mr. King tear down the curtain, but he does not know how Inspector
Lyle could not help but see it. To the best of his recollection,
Inspector Lyle did not tell him that he was issuing a citation

1171

because a loader WAS loading without a wing curtain. being installed
until the curtain was torn down for the loader to back up and clean
the roadways and the ribs. The purpose of teari11g the wing curtaln
down that day was to clean the ribs, which is a normal practice. If
the wing curtain is left up while a man is shoveling behind it, he
cannot be seen, and he has to throw the debr:Ls ·far out so that the
loader can pick it up on its next cycle. The curtain was down for
5 or 6 minutes, and !>1r. Lyle took an air reading while the curtain
was down. When the loader finished cleaning up the rib area, the
curtain was hung and another air reading was ta1'..en by the inspector
(Tr. 358-366).

Qn cro~s-:.'=.xa_E:tj_nati.on, Mr. Sturgill stated that Inspector Lyle
never informed him that he was issuing the violation, and Mr. Sturgill
believes that since the curtain is normally supposed to be up, except
when the ribs are being cleaned, that the inspector happened to see
the curtain down and then cited the condition, not realizing that they
were in the process of cleaning the ribs. He does not believe that
the requirement in 75.301-1 of maintaining 3,000 cfms is unreasonable,
but in his opinion, it is not a hazard if an operator is loading coal
at the face and is unable .to measure any perceptible air movement
because the ribs would prob::ibly have been cleaned by shovel i f he had
found methane on hls section (Tr. 367-378).
·
Insp<;ctor. Lyle was called in rebuttal and stated that he never
saw a wing curtain being taken down, and he disagreed that it is
neccs·sa:cy to take down curtains in order to clean faces or ribs. It
is permissible to move a curtain to the other side so long as the
requisite amount of air is maintained according to the law, and he
is unaware of any pennitted exceptions. In order to abate the cited
condition, a curtain was obtained and extended into the area up to
within 10 feet of the face, after which he took air readings (Tr.
379-384) •
.!!!__re~onse to que~tion~ frol_'.!__!pe_b_ench, Inspector Lyle testified
that the notice he issued. at 11:25 for lack of a line brattice, and
the notice he wrote at 11:30, pertained to the No. 5 entry crosscut to
the left where coal was being loaded. · Ther<:!. is a relationship between
the two notices, since without the line brattice or wing curtain, the
required 3,000 cubic feet of air could not be coursed in where coal
was being loaded. In effect; the failure to have the line brattice
generated two citations, i.e., the notice and the order, both of
which stemmed from the sa;e-condition. He confirmed Mr. Sturgill 's
testimony that wing curtains are frequently taken down to facilitate
the cleaning of the ribs, rather than taking the risk of having the
curtain torn down. However, he does not know of any :i.nspector in the
District 10 Office that would allow this practice· (Tr. 385-389).

1172

Section 104(_c.)(2) Not.ice No. 2 TML, March 1, 1977, 30 CFR 75.301-1
The qlk'lntity of air reaching the end of the line
brattice where coal was being cut with a Joy cutting
machine by Mike Foster was measured to be only
1,748 cfms with an approved anemometer and smoke tube
in the No. 2 entry working face crosscut to the left
on the No. 6 Unit (ID 029) 3rd S.E. Responsibility of
Pat Sturgill, foreman.
Petitioner's Testimony
Inspector Lyle testified that some time after he had issued the
104(c)(2). order for the inadequacy of air with the loading machine,
he proceeded back across the run and observed the Joy cutting machine
being operated in the face, cutting coal while the line curtain was
20 feet outby the face area where the me.chine operator was cutting.
He then issued a 104(b) notice to the operator for having an
inadequately-installed line brattice which did not reach up to and
within 10 feet· of the working face where coal was being cut, mined or
loaded. After taking air readings, he then issued the 104(c) (2) order
for a violation of section 75.301-1, since the air measurement vas
only 1, 748 cfms. He took three anemometer readings and two smoke tube
readings which he recorded. The aneiaom0ter readings were 1, 26 0 cf ms,
1,300 cfms and 1,380 cfms. The smoke tube readings were 1,764 cubic
feet per minute and 1, 731 cubic feet per minute. He put the figures
together and averaged them out to be 1,71+8 cubic feet per minute,
while the statutory requirement is 3 ,000 cubic feet per minute (Tr.
410-Lfl2).
With respect to the seriousness of the violation, Inspector Lyle
testified that he would classify it on the same level as the other
violations previously dealt with. If there was a pocket of methane
gas, without the proper amount of air, there could be an ignition or
a mine explosion. He reiterated his previous statement that the· ·
mine was somewhat lacking in air and was in dire need of much better
ventilation. The inspector took methane readings, but he did not
find any methane. As far as negligence is concerned, he believed
that the operator should have known of the condition since he had
issued an order for another sirailar violation 30 to 40 minutes
earlier. Mr. Sturgill, the section foreman, was accompanying him
when he issued the subject order and took the measurements (Tr. 413415).
On cross-examination, Inspector Lyle stated that there was confusion in the mine when he issued the order, since the opera tor and
his employees were not very happy about the order and they were arguing, but he is not certain whether Chester Waters was with him. The
cutting machine operator had probably taken his second cut out, but he
does not know how far down tlv; entry had been advanced (Tr. 417-1~21).

1173

Respondent's

Tes~imony

Mr. Sturg~ll testified that he and Inspector Lyle were leaving
the area of the previous violation and were heading tow;i.rds No. 1.
There was a coal drill in No. 4, drilling coal and Inspector Lyle
took a re<idi ng in that area and got a m2asurement at the coal drill
of 8,000 cubic feet. The machine stopped at the face and Inspector
Lyle measured a1.;,1 got 2. reading of l_, 700 cfms, and advised him that he
would have to hang a wing curtain across the machine in front of a particular roof bolt and he told the inspector "that is in front of the
cutterman right here and I've stopped the face" (Tr. 428). After the
curtain had been hung over the cutter, the inspect-or took another air
reading which proved to be sufficient and then told him to proceed.
They held the curtain up and the cutter proceeded to cut coal. According to Mr. Sturgill, it was. foolish and dangerous to .hold the curtain
up since the cutter bar could have pulled the men holding the curtain
into the cut ting machine by catching the· curtain, and he feels that he
should have pulled the cutter out and gone to another place (Tr. 422lfJl).
Mr. Sturgill further testified that on the day the notice issued,
the wing curtain was positioned in the correct position, i.e., in
back of the cutting machine and that the air was sufficie;:t-because
he was not working at the face of the entry, but at the face of the
crosscut. The regulation requires that there be 3,000 cubic feet
of air at the back of the equipment, 10 feet from the working face.
After Inspector Lyle told Mr. Waters to hang a wing curtain across the
cutter bar, Mr. Waters and the inspector had a few \vords about the
inspector's order, and Hr. Waters told the inspector that he was just
nitpicking. In his 30 to 31 years' experience in mining, he has never
before hung a wing curtain over a cutting machine that was running.
After Inspector Lyle left, he did not return the wing curtain over the
cutting machine, but rather tore it down and continued on with the
cutting (Tr. 431-434).
On cross-examination, Mr. Sturgill testified that despite the
depiction of the cutter in Exhibit R-10 as occupying approximately
80 feet of the entry, the cutter was not in the middle of the entry.
No crosscut at all had been driven at the time since the cutter was
in the process of taking its first cut. He agrees that 3,000 cfms
are required at the working face, however, he maintains that he had
8, 000 cf ms in the crosscut where he was working and stated that the
reason the inspector got a measureI'JBnt of 1,700 cfms is because he
did not measure where the cutting was actually being done, i.·~·, at
the working face, but rather, he measured above where the cutting
was being done inby (Tr. 434-440).
Mr. Chester Waters, inine manager at the Ken No. 4 Underground
Mine", testified that on March 1, 1977, he was the assistant mine
foreman on the day shift, that he was present on the section during Inspector Lyle's entire inspection, and that he went ahead of

1174

Mr. Sturgill and Mr. Lyle. The wing curtain was up within 10 feet of
the working face. He took an air measurement: in excess of 5,000 cfrns,
and since he b.-:~lieved he was in compliance with the law, he gave the
cutter operator the go-ahead to commence operation with the first cut.
Inspector. Lyle and Mr. Sturgill then approached the cutting machine,
and Inspecto'r Lyle informed. him that he did not have the wing curtain
to within 10 feet of the face, and he then went around the cutting
machine and imrked the roof bolt where he wanted the wing curtain
advanced. At the time, the inspector was referring to the face of the
entry, but the actual working face was the crosscut. Mr. Waters testified that he told Inspector Lyle that he was nitpicking and that they
were not in violation of the law. In order to aba.te the comli.tion,
the wing curtain was advanced to the location indicated by Mr. Lyle so
that the proper amount of air was achieved. However, in ~fr. Waters 1
opinion, . the abatement was done in a dange1·ous way since holding the
curtain up restricted the visibility of the cutter operator. In his
mon~ than 20 years in the mining industry, he has never before or
since that time, seen a curtain held up while the cutter opera tor cuts
coal. In his opinion, this practice is not safe since no men should
be around the cutter except the operator, because of the possibility
of being crushed and injured by the cutter. He believes that there
was ci s•.: C:ficient amount of air and the correct position of the wing
curtain that cby w3s where it was located when Inspector Lyle first
observed it, i.e., within 10 feet of the working face or the crosscut
which they were-working (Tr. Lf41-L:.48).
On cross-examination,
Mr. Waters testified that he took one air reading with an anemometer that he had borrowed from Hr. Sturgill, and using a tape
line he calculated the measurement in his head. After Inspector
Lyle verbally issued his order, he remained on the scene until
it had been abated, after which time, he left with Inspector Lyle
(Tr. 451-:452).

Inspector Lyle was recalled in rebuttal and stat;ed thi:..t although
he has no reason to doubt that Mr. Waters did take an air reading,
his notes indicate that Mr. Waters did not have an anemorneter. The
working face is wherever coal is being cut, mined or loaded. He took
his air reading at the end of the line ('.urtain, just inby the end of
the line curtain. He arrived at the calculation of 1,7.00 cfms based
on the location of the iine curtain as being 3 feet from the rib and
the _<lpproximate distance of the roof as being 5 feet high. He does
not think tha:t it is possible that he took his air reading on the other
side of the cutter up in the corner of the entry since had he gone
around and taken a reading where there was no curtain to direct the
air, he would not have been able to record any reading because the air
would have to have come out the end of the curtain which was 3 feet
wide, 3 feet out from the rib, and 5 feet high, and then dispersing
with a 20-foot-wide area. In addition, the air would have to get by

1175

the cutting machine itself as well as go over the top of the cutting
machine. According to the inspector, the only pface that it would
have been possible for him .to have come up with a correct air reading
would have been at the line curtain where he distinctly recalls having taken the reading (Tr. lf52-460).
With respect to whether or not he directed management to have a
line curtain over the cutting machine, Inspector Lyle testified that,
as a policy, he does not direct management to do anything. He simply,
writes a notice of violation that requires that management abate a
violation of the law. In order to abate the violat.ion, the line
curtain was extended up to with:ln 10 feet of the crosscut to the
left, and to his knowledge, it was never ex.tended over the cutting
machine (Tr. 460-Lf61).
The original not ice citing the line curtain as being more than
10 feet from the face concerns the same line curtain as in the subject order which was issued for lack of air at the same working face.
When the first lOl+(b) notice was abated and the line curtain was
extended up to within 10 feet of the face, the air ca.me up. Had the
curtain been extended over the cutt:ln2; machine up to the problem area,
it would have been inby the working face (Tr. li-61·-463).
Findings and Conclusions
Order N0. 1 TML, December 20, 1976, 30 CFR 75.402
Fact of Violation
Respondent argues that the inspector issued this citation because
of his dissatisfaction and dislike for the method of wet rock dusting
utilized by the respondent in its mine. Respondent asserts that it
had rock dusted the roof and ribs to withi.n a few feet of the working face and had dry rock dusted the floors to approximately 'vithin
20 feet of the working face (Tr. 19-20, 71-72, 121, 150-151).
With regard to the samples taken by the inspector, respondent
asserts that since the inspector took only three band samples over an
area described as being inadequately rock dusted and which encompassed
six entries in width and a length or di.stance of 150 feet, their
reliability as true indications of the rock"'."dusting condition on the
section is open to serious question. Further, respondent argues .that
the inspector's judgment was colored. by the _fact that he did not
believe that wet rock dusting met the requirements of section 75.402,
and that he therefore did not take true representative rock-dust band
samples in the section. Finally, respondent asserts that although the
inspector testified that he was not. accompanied by a company representative the entire time he was on the section, one of respondent's
witnesses (Large) testified he accompanied the inspector the entire
timc> that he ,;as on i.:he section and did not observe him take a rockdust band sample, and a second witness (Stewart) testified that the

1176

inspector was in his presence continuously from the time he came to
the face until he left the section and that he never observed him
take a rock-dust band sample.
In support of the citation, petitioner relies on the testimony of
the inspector, including his description of the procedures used to
take the band samples, the laboratory results of the sampling, and the
detailed n.otes and sketch of the scene made by the inspector at the
time· the citation was issued. As for the use of wet rock dust, petitioner argues that the definition of "rock dust" set forth in 30 CFR
75.2(d) differs both in composition and in usage from the wet dust
which the respondent believed was adequate to compiy with section
75.402.
With. regard to the ·inspector's sampling, petitioner asserts that
no witness offered by the respondent could testify to more than the
fact that they did not personally~ the inspector take the samples,
and that the inspector repeatedly testified, as was adntltted by the
respondent's witnesses, that they did not accompany him at all times
while he was inspecting the section.
Respondent is charged with a violation of section 75.402, which
states that:
All underground areas of a coal mine, except those areas
in which the dust is too wet or too high in incombustible
cont·ent to propagate an explosion, shall b.e rock dusted to
within 40 feet of all working faces, unless such areas are
inaccessible or unsafe to enter or unless the Secretary or
his authorized representative permits an except:i,on upon his
finding that such exception will not pose a hazard to the
miners.; All crosscuts that are less than 40 feet from a
working face shall also be rock dusted.
The statutory de.finition of the term "rock dust" is found at
30 CFR 75.2(d), and it is defined as follows:
"Rock dust" means pulverized limestone, dolomite,
gypsum, anhydrite, shale, adobe, or other inert material
preferably light colored, 100 per centum of which. will
pass through a sieve having 20 meshes per linear inch
and 70 per centum or more of which w:i,11 pass through a
sieve having 200 meshes per linear inch; the particles
of which when wetted and dried will not cohere to form
a cake which will not be dispersed into separate
particles by a light blast of air; and which does not
contain more than 5 per centum of combustible matter or
more than a total of 4 per centum of free and combined
silica (Si0 2 ), or, where the Secretary finds that such
silica concentrations are not available, which does not

1177

contain more than 5 per centum of free and combined
silica; 'ic
*·

*

The June 1974 edition of the Inspector's Manual, published by
MSHA's predecessor MESA, and which contains guidelines for inspectors and the coal mining industry, contains the following information pertaining to the use of wet rock dust in a mine:
AEJ?lication of rock wet dus1=_. So long as the percentages of incombustible content specified in 75.403 are maintained, rock dust may be applied wet in the f911owing manner:
Wet rock dust shall be limited to rib and roof surfaces in
face areas; It shall not be used for redusting mine surfaces; in such applications, only limestone or marble dust
which meets the specificntions contained in Section 75.l(d)
shall be used; the application shall be at the rate of not
less than 3 ounces (weight) of dust per square foot of surface, and shall be by a mixture of not more "than 6 to 8 gallons of water with 100 pounds of dust, whether by premixed
slurry or by mixing at the nozzle of a hose to assure that
the mixing is not too fluid and that sufficient dust
adheres to the surfaces• After the wet rock dust dries,
additional dry rock dust shall be applied to all surfaces
to meet applicable standards. Wet rock-dusting of ribs
and roof does not eliminate the necessity for dry rockdusting the floor.
In one of the earlier cases litigated under the 1969 Act, Valley
Camp Coal CompaE.Y., 1 IBMA 243, 246 (1972), the former Interior Board
of Mine Operations Appeals observed as follows ·~1hen commenting on the ·
intent of the statutory rock dust requirements found in sections
304(c) and (d) of the Act:
The above sections should be construed as a whole.
Their purpose is to provide an incombustible atmosphere in
most underground areas of the mine so that, if ignition
occurs, the dust will not propagate an explosion. When
read with this community of purpose and subject matter,
sections 304(c) and 304(d) require operators to rock dust
every crosscut as well as other areas of the mine beyond
40 feet of working faces> unless s.uch areas are naturally
too high in incombustible dust content to propagate explosions, too wet to propagate an explosion, inaccessible,
unsafe to enter, or have been excepted from the requirements by the Secretary or his authorized representative
in accordance with section 304(c). Section 304(d) does
not define the level of incombustibility that is "too
high to propagate an explosion," but, when read as a
whole, this level is defined by section 304(d).

1178

It seems obvious from the evidence presented that the wet rock
dust applied by the respondent did not meet the definition set forth
in section 75.2(d), which states that such rock-dust particles be of
such a constistency "which when wetted and dried will not cohere to
form a cake which will not be dispersed into separate particles by a
light blast of air. 11 As a matter of fact, respondent's own witness,
Face Foreman Stewart, when·testifying that it is impossible to take
a rib or roof sample with a brush in an area which had been wet
dusted, indicated that one would have to chip off some of the rock
dust with a hammer.
On the evidence adduced here, I find that the inspector's interpretation with respect to the use of wet rock dust as a means of compliance with section 75.402 is correct. The wet rock dust apparently
being used by the respondent obviously did not meet the statutory
definition, .and respondent has presented no credible evidence to the
contrary, nor has respondent offered any statutory or regulatory
authority which authorizes the use of wet rock dust to gain compliance with section 75.402. Although I recognize the fact that section
75.402, on its face, does not prohibit the use of wet rock dust, when
read together with the statutory definition of the term "rock dust,"
I cannot conclude that the petitioner's int·erpretation and application of section 75.402 on the facts and circumstances presented here
was unreasonable or incorrect, and respondent's posthearing arguments
do not persuade me to the contrary.
The next question presented is whether the petitioner has established by a preponderance of the evidence that the area cited by the
inspector had not been rock dusted to within 40 feet of the working
faces as required by section 75.402. Simply stated, respondent takes
the position that it met the requirements of section 75.402 by applying wet rock dust to the area cited. Petitioner's position seems to
be that the use of wet rock dust not meeting the statutory definition
is akin to not using rock dust at all. I conclude and find that the
petitioner has·the better part of the argument and that the testimony
and documentation of the condition as articulated by the inspector
supports the order which he issued.
With respect to the inspector's sampling procedures, and particularly respondent's attack on his credibility, I reject respondent's
assertion that the inspector somehow misinterpreted.the fact that he
took samples. A careful review of respondent's testimony reflects
that Fc:ce Foreman Stewart and Mine Manager Large did not see the
inspector take samples, and while respondent's posthearingarguments
suggest that the inspector was never out of the sight of Mr. Stewart
and Mr. Large, that is not the case. The inspector had ample opportunities to take his samples, and 1 find his testimony and notes made
at the time of the inspection to be credible. Further, respondent w.as
free to take its own samples, but apparently did riot do so.

1179

In denying that the 150 feet described by the inspector was white
in color, Face Foreman Stewart stated that this was not so becaus<=~ the
three entries had been driven a week before the inspector and had been
rock dusted "a long ti.me ago." Thus, Mr. Stewart's testimony lends
credence and support to the in~pector's testimony. If the entries had
been previously driven and rock dusted even earlier, the subsequent
mining activity which took place after those events obviously affected
the condition of the section on the day of the inspection. Further
support for this conclusion may be found in Mr. Stewart's candid
admission that dry reek dust was not used because production would
have to stop. Placing coal production ahead cf adequate rock dusting
simply should not be permitted.
I conclude and find that petitioner has established a violation
of se~tion 75.402 as charged in the order and it is AFFIRJ.'1ED.
Negligence
Although respondent may have believed that wet rock dusting met
the requirements of section 75.402, I am not convinced that mine management was completely oblivious to what was required to meet the
rock-dusting requirements of that section. Hr. Large's testimony
reflects his concession that certain areas were not rock dusted, that
the area could have been dusted better, and he apparently was aware
of the differences between the rock:-dusting requirements of section
75.402, and the provisions of section 75.L~Ol which permit the use of
wetting agents at the face. Further, the extent of the area involved,
some 150 feet, convinces me tha.t the respondent failed to take reasonable care to insure that the area cited was properly rock dusted. I
find that the condition cited resulted from the respondent's ordinary
negligence.
Gravity
Failure to rock dust in an area where coal is being mined presents a hazard of fire or explosion. Considering the extent of the
area which was not rock dusted, and the results of the inspector's
sampling for incombustible content, I conclude and find that the
violation was serious.
Go6d Faith Compliance
Exhibit G-3 reflects that the order was terminated at 9: 30 a .m.,
the day after it issued, after the area was adequately rock dusted.
Further, respondent's testimony reflects that rock dusting was
accomplished at the beginning of the next production shift after the
order issued at 7 p.rn. on December 20. In these circumstances, I
find that.the respondent demonstrated good faith compliance in
correcting and abating the conditions cited.

1180

Order No. 1 TML, February 16, 1977, 30 CFR 75.200
Fact of Violation
Respondent docs not dispute the fact that th~re was an area of
unsupported roof as described by the inspector in the order citing
a violation of section 75.200. As a matter of fact, during the course
of the hearing, respondent's counsel did not dispute the existence of
some unsupported roof area, and conceded that the fact that the inspector may have been mistaken as to the numbering of the entries was not
unusual since someone may have honestly and mistakenly given him the
wrong entry numbers (Tr. 199).
The thrust of the respondent's defense to the violation is the
assertion that the unsupported roof condition was first discovered
by the mine manager, that the size of the unsupported area was
approximately 15 square feet, that only three bolts were missing,
and that the area had been posted with a "No bolts" sign. Since the
area was posted and no one was working there, respondent argues that
no violation occurred since the area would have been supported in the
regular work cycle.
Petitioner argues that respondent admitted the roof was unsupported and the fact that a ·danger sign was put up is no defense.
I find that the evidence adduced with respect to the violation
supports the action taken by the inspector and establishes a violation of section 75.200 as stated in the order. The applicable roofcontrol plan (Exh. G-9 at p. 6, item 13), provides in pertinent part
that "[.B] efore side cuts are started, the roof in the area from which
it is turned shall be supported with perm.anent supports according to
the approved plan;
* *·" It is clear here that one side of the
intersection at the connecting crosscut in question had not been
bolted as charged. in the order. And, the fact that mine management
may have discovered the condition before the inspector did and began
abatement is not material to the fact that the condition cited did
in fact exist and that it constituted a violation of the roof-control
plan, a.nd consequently, a violation of section 7 5. 200. The order is
AFFIRMED.

*

Gravity
Although the inspector saw no coal being cut in the entry or a
cutting machine in the entries, coal was being ru..'1. on the section and
the roof had been bolted in the area beyond the cited unsupported roof
area. The inspector believed the condition existed for at least
one shift and men were working in the section. Although there was a
dispute as to the extent of the unsupported roof area and the number
of roof bolts which were missing, the fact is that the area cited was
unsupported and posed a roof-fall hazard. I conclude and find that
the violation was serious.

1181

Neglil2_~

Although Assistant Mine Superintendent Bowen testified he found
the missing bolts just before t·he inspector arrived at the intersection, I believe that a proper preshift inspection by the section
foreman or his crew should have discovered the condition sooner,
particularly on the facts prescuted here where the inspector indicated that the area beyond had been bolted and that the condition
existed for at least one shift. Further, since the respondent maintains that the area was pos.ted with a "No bolts" sign, which was not
observed by the inspector, leads me to conclude that someone might
have been aware of the missing bolts before Mr. Bowen arrived at the
scene. In the c ircumstal'.).ces presented, I cone iude ·and find that the
respondent failed to exercise reasonable care to prevent the condition cited and that this constitutes ordinary negligence.
Good Faith Compliance
The abatement notice reflects that the condition cited was immediately corrected.and that the order was abated in approximately an
hour after it was issued (Exh. G-11). I find that the respondent
exerci~ed good faith in abating the condition which was cited in the
order in question.
Order No. 1 TI1L, February 28, 1977, 30 CFR 75.301
Fact of Violation
Respondent does not dispute the inspector's low air reading of
7, 900 cfms i.n the last open crosscut at the location described in his
order. In defense of the condition cited, respondent asserts that a
technical violation occurred only after the loader operator inadvertently knocked down a check curtain, and that the loader operator and
a helper were in the process of obtaining a hammer to replace the
curtain when the inspector entered the last open crosscut and took
his iir readirig. Since the only thing done to abate the violation
was the rehanging of the ch~c-k curtain. which had been knocked do\<m
and the checking of another curtain that was loose, respondent asserts
that- it would have had the required amount of air were it not for the
knocked down curtain.
With regard to the inspector's air readings and measurements,
responde.nt, both during the hearing and in its posthearing brief, suggested that the inspector's air reading computations and calculations
as set forth in Exhibits G-20.and G-33 were fabricated.
Petitioner argues that the inspector's testimony, notes, air readings,· and cal~ulations concerning the lack of a sufficient quantity of
air at the location cited all support the order. Further, petitioner
points to the fact that respondent's own witness admitted that the air

1182

was insufficient, that securing adequate ventilation was a continuing
problem on the section, and that the section was shut down the day
after the order issued by the mine manager due to the inability to
maintain sufficient air at the working faces (Tr. 265, 266, 321--328).
As for the respondent's attack on the inspector's credibility
surrounding the preparation of Exhibits G-20 and G-33, petitioner
states that the exhibits were not produced for the respondent in
advance of the hearing and in tesponse to discovery request~
·because of a "clerical error" in the reproduction of the inspector's notes (Brief, pp. 4-5).
I find that the petitioner has established a violation of section 75.301 by a preponderance of the evidence. It is clear to me
that 9,000 cubic feet of air per minute was not being maintained in
the last open crosscut in the area described by the inspector and
that the condition constituted a violation of the cited mandatory
standard. Further, it is clear to me that respondent presented no
credible evidence to dispute the inspector's findings which were
supported by notes and air measurements taken by him.at the time of
his inspection.
ilespoudent's suggestion that the violation was "technical" is
rejected. None of the air readings taken by the inspector reached
the required levels and based on all of the evidence adduced with
respect to this violation, it seems clear to me that the respondent
was experiencing serious problems in maintaining the proper quantity
of air in the section and I am not convinced that the ventilation
problems could have been readily cured by simply finding a hammer
and hanging up a check curtain, as suggested by the respondent.
With respect to respondent's suggestion that the inspector may
have fabricated the air measurement computations which are reflected
in his notes (Exhs. G-20, G-33), I find this to be a most serious
accusation which should not be taken lightly. However, respondent
has produced no credible evidence to support its assertion and it is
rejected. I accept the explanation given by the petitioner in its
brief with respect to the notes in questioh and find the explanation
pla~sible.
In the future, I would think that the respondent would
have a more solid basis for such an accusation and should avoid
speculative, groundless, and unfounded assertions of this kind. The
order is AFFIRMED.
Gravity
The inspector detected no methane and the air readings which he
obtained for the area cited indicated air quantity ranging from·
5,700 to 7,125 cfms when measured with an anemometer, and 7,410 to
7,885 cfms when measured with a smoke tube. Further, the air in the
intake measured 11,780 cfms and the inspector cited no permissibility

1183

violations. Further, respondent's evidence establishes that the
curtain which was down was apparently rehung in about 5 minutes and
that the required quantity of air was achieved.
Although I recognize the fact that the respond~nt was eKperiencing problems with mine ventilation which apparently required addi":"
tional raises and which prompted the section to be subsequently
abandoned and shut down, the gravity of the particular condition
cited in the order must be determined on all of the prevailing conditions which existed as to that order. The facts presented here
show that there was sufficient air in the intake, no methane, and no
permissibility violations. Although the inspector believed that the
low air readings may have affected the air at the face, he apparently
took no air readings there and there is no evidence to support his
conclusion that the air at the face was affected at th~ time the order
issued.
The potential adverse effects of the violation must be determined
within the context of the conditions or practices existing in the mine
at the time the violation is detected, ~awson Coal Company, 1 IBMA
115, 120 ( 1972). In view of the totality of the conditions which prevailed, including the fact that the required quantity of air was
apparently restored within a short time, I cannot conclude the violation was serious, and I conclude and find that it was not.
Negligence
The fact that the section had experienced problems with ventilation was known both to the respondent and the inspector. As a matter
of fact, the inspector indicated that an HSHA ventilation team had
previously visited the mine for the purpose of checking the ventilation and the respondent was apparently attempting' to solve the prob'lem. Viewed in this context, I cannot conclude that the ventilation
problems being encountered in the mine can serve to establish neglig~nce on the respondent's part with respect to the condition cited
which served as the basis for the order. The order must stand on
its ovm footing, and any negligence must be established by petitioner
on the basis of the then prevailing conditions.
Respondent maintains that the low air readings resulted from a
check curtain being down. However, the inspector testified that he
took air readings after the curtain had been replaced and he did
not believe the check curtain was the cause of the low air readings.
Since the section was subsequently shut down because of the ventilation problems and consistently low air readings, I cannot conclude
that his evaluation of the situation was wrong.
In view of the foregoing, I conclude that the respondent knew
or should have known about the conditions cited and failed to exercise reasonable care to prevent the conditions~ I find that the
violation resulted from'respoudent's ordinary negligence.

1184

Good FD.i th. Cci;;ipliance
The evidence establishes that the order was terminated some
40 minutes .-;ft er.it was issued after the quantity of air was increased
to 9,600 cfms. Further, respondent.'s testimony r~flects th~t the curtain which wa.s torn down w.'.l.s rehun,'.:; in short order. In the circumstances, I conclude that the respondent exercised rapid abatement in
achieving good faith compliance after the order issued.
Order No. 1 'J.'rlL, March 1, 1977, 30 CFR 75.301-1
Fact of Violation
Respondent asserts that it is clear from the testimony of its
face foreman, Pat Sturgill, that there was a technical violation of
the cited safety standard in that respondent was only using a normal
and acceptable mining practice to clean the ribs and that the inspector. himself acknowledged that this practice is done to facilitate the
cleaning of the ribs (Tr. 359-360, 365, 377-378·, 388-389).
Petitioner argues that coal was being loaded in a working face
although the air movement was so insu.f.ficient as to be incapable of
measurement. The loading machine was actually loading coal along
the ribs to the working face where the coal had not yet been loaded
out (Tr. 353, 374).
I find that the petitioner has established a violation of section 75.301-1 by a preponderance of the evidence. _Respondent has
offered no defense other than. the assertion that taking down the
curtain is a normal mining practice when cleaning ribs. I reject
that defense. I conclude from the inspector's testimony that coal
was being loaded out of the section at the time of the order and
respondent has not established that it is permitted to take down
ventilation curtains while loading out coal. Further, while
respondent presented testimony from its shift foreman that the curtain' was taken down to facilitate the cleaning of the ribs, I find
the inspector's testimony that coal was being loaded out to be the
more credible. Even if the ribs were being cleaned, respondent has
cited no star1dard or raine cleanup plan provision which would permit
ventilation curtains to be taken down to facilitate the cleanup of
ribs. Respondent's assertion that the inspector acknowledged this
practice is taken out of context _and does not excuse the violation.
T'ne inspector confirmed the section foreman's testimony in this
regard, but he indicated that no inspector in his district would
permit the practice and he obviously does not since he issued the
citation. The order is AFFIRMED.

1185

I find that the respondent deliberately took doym the ventilation curtain in question iri order to faciliiate the loading out of
coal and in so doing caused the quantity of air at the working face
to be reduced to a point where it could not be measured. In the
circumstances, I conclude that the respondent exercised a reckless
disregard of the requirements of section 75.301-1, and in so doing,
caused the condition cited through gross negligence.
Gravity
The quantity of air at the working face was so low as to make
it impossible for the inspector to take an air.reading with his
anemometer. Coal was being loaded, the area was dusty, and if
methane were liberated,. the lack of air would present an explosion
hazar~ exposing the 12 men on the section to danger.
I find that
the violation was very serious.
Good Faith Compliance
The abatement notice concerning Order No. 1 TML, for a violation of section 75.301-1, reflects that the order was terminated at
11:55 a.m. on March 1 1 1977, 25 minutes after it was issued by
increasing the quantity of air to 3,000 cfms at the location in the
No. 5 entry where coal was being cut (Exh. G-26). I conclude that
respondent exercised good faith in correcting the violation.
~-No.

2 TML, March 1, 1977, 30 CFR 75.301-1

Fact of Violation
Respondent argues that the testimony of the face foreman and
assistant mine foreman clearly shows that there was more than enough
air at the working face in question at the time the violation was
written, that the inspector ~rred in his assessment of the correct
position of the wing curtain, and that respondent's personnel were
required to perform a very unsafe and highly dangerous act to abate
the condition. Respondent asserts that it is highly unlikely that
an experienced mine foreman, knowing that an inspector was on the
section, would take an air reading at the incorrect wing curtain
position and then advise the cutter to begin cuttin~. Respondent
also points out that although the inspector alluded to a 104(b)
notice which he said he issued at the same working face moments
before he issued the order, when MSHA attempted to introduce the
notice at the hearing, it was discovered that it did not deal with
the alleged situation described by the inspector and the exhibit
was withdrawn. Respondent asserts that this is an indication of
the inspector's confusion as to what actually occurred.

l.186

Petitioner argues that the inspector described in detail the
results of three anemometer readings and two smoke tube readings
which he took to support his order, and that they averaged
1, 748 cfms as stated on the face of the order. Although both the
inspector and Foreman Sturgill testified that the cutter was cutting the crosscut to the left as alleged, petitioner asserts that
Exhibit R-11 and other testimony by respondent's witness attempted
to indicate that the working was actually the face of the entry and
not the face of the crosscut to the left. Petitioner submits that
Exhibit R-11 was obviously not prepared by eyewitnesses underground
at the time the violation was cited and is clearly a self-serving
product of prehearing preparation.
Petitioner points to the fact that the violation was issued some
26 months prior to the date the hearing was held and that because of
the passage of time, the critical and specific details surrounding
the violation are difficult to recall from memory. Since the inspector was able to consistently refresh his memory from notes made at
the time of the violation, and since he was the only one to take air
measurements and tests, petitioner suggests that his .testimony should
be given more weight.
After careful review and consideration of all of the testimony
adduced in this proceeding, I concluJe and find that the petitioner
has established a violation by a preponderance of the evidence. I
find that the inspector's testimony, as supported by his notes which
were taken at or near the issuance of the order, supports his find~
ings of a violation and support the order which he issued. 1 further
find and ponclude that the testimony presented by the respondent in
defense of the citation does not rebut the findings made by the
inspector, both as to the existence of the conditions cited or the
fact of violation.
With regard to the location of the working face, the inspector's
testimony is consistent with the description noted on the face of his
order, as well as the notes taken by him on the day th~ violation
issued. He defined the term "working face" as 11 wherever coal is being
cut, mined, or loaded'' and specifically testified ·that coal was being
cut .in the crosscut to the left. The inspector's testimony that coal
was being cut and that the cutting machine was "sumped up and cutting"
(Tr. 412) has not been rebutted by the respondent. As a matter of
fact, Mr. Sturgill admitted that the cutting machine was in the entry
cutting coal and that the crosscut had been advanced or began one cut
when he and the inspector reached the entry (Tr. 424). Thus, l cannot
conclude from the testimony presented that the inspector was wrong in
his assessment-of the situation, nor can I conclude that he erroneously located the working face.

1187

Respondent 1 s assertions that the inspector admitted confuRion as
to what actually occurred is tc.ken out of context. A close review of
the inspector 1 s testimony makes it clear that while he alluded to
some confusion based on the fact that mine management was not happy
with the issuance of the order and accused him of "nitpicking, 11 when
asked whether that confusion may have spilled over to his notes, he
specifically and directly stated "No • 11 I put in my notes what I
observed and what I had seen ar1d what I came out with 11 (Tr. 4.17).
Further, based on the somewhat limited cross-examination of the
inspector, I cannot conclude that he was confused or unsure of the
conditions which he observed on the day in question which led him to
issue the violation.
Regarding the respondent's assertion that the inspector required
its personnel to perform an unsafe and dangerous act to abateth_e__ _
conditions, ~lthough the face foreman testified on direct examination
that the inspector 11 told me that I would h&ve to hang a wing curtain
across this machine" (Tr. 1+28). on cross-exaraination, he stated that
the inspector did not instruct him to hold the line curtain and that
the inspector did not care "how I cut the place" (Tr. 438). And, in
testifying that the inspector "made r.1e hang this curtain across this
cutter bar'' (Tr. 439), he confirmed that inspectors do pot order or
instruct him how to abate a violation but simply indicate that the air
is insufficient and leave it to him to bring it. up to requirements.
In this case, .'he admitted that th(~ inspector did not order him to
hang the curtain, but that he told him to hang it to a raof bolt (Tr.
lfL~O).
Under the circumstances, I cannot conclude that the respondent's assertion that the inspector required its personnel to per:torm a dangerous act has been established. Even if it were, I fail
to understand how the method of abatemen~ detracts from the condition
which the inspector believed was a violation of the cited standard.
The citation is AFFIRHED.

The evidence adduced that the respondent H~s in the process of
cutting coal at the. face of the entry cited by the inspector. In
such circumstances, it is reasonable to expect that the .section foreman would insure that the proper amount of air was maintained at the
face where such cutting was taking place. I find and conclude 'that
the condition cited by the inspector should have been discovered and
corrected and that respondent's failure to do so prior to the time'
that the violation was cited, constituted ordinary negligence.
Gravity
The inspector testified that he believed the gravity presented
with respect to the violation 11 was the same as the others," tneaning
the previous violations which he testified about in this proceeding.
Although he alluded to certain hazards· if a pocket of methane were

1188

encountered, he also stated that he took methane tests and found
none (Tr. 413). As for the existe.nce of other prevailing conditions
which may have amounted to violations, while. he confir.meci the issuance of other notices, he specifically stci.ted that those conditions
had been abated prior to the issuance of the subject ~rder (Tr. 413).
Notwithstanding the fact that the respondent was experiencing difficulties \vi th is mine ventilation at the time the orde't issued ,-I
cannot conclude from the evidence presented by the petitione~ that
it has establish~d that this violation was serious. Taking into
account all of the conditions established by the credible evidence
adduced,~I-conclude that it was nonserious.
Good Faith Abatement
The abatement notice concerning Order No. 2 TML, for the violation of section 75.301-1, reflects that the order was terminated at
12:55 p.m., 15 minutes after the order was issued on March 1, 1977,
by increasing the quantity of air to 3,400 cfms (Exh. G-30). Absent
any evidence to the contrary, I conclude that the respondent exercised good faith in abating the conditions cited.
Size of BuRiness and Effect of Penalties on Respon_dent 's Ability ._t_o
Remain in Business
The parties stipulated that responden-t is a large mine operator.
Respondent presented no evidence or. a.rguments that ariy civil penalties assessed by me in this proceeding will adversely affect its
ability to remain in business, and I conclude that they will not.
History of Prior Violations
As evidence of respondent's history of prior violations, respondent prodt1ced a computer printout (Exh. G-1) for the period January 1,
1970, to December 19, 1976, for the Ken No. 4 Underground Mine, indicating that respondent has paid a total of $132,270 in civil penalty
assessments for l, 12 7 violations. Seventy nine violations were for
infractions of section 75.200, 89 were violatiohs of section 75.301,
21 were violations of 75.301-1, and 11 ~ere violations of 75.402.
Twelve of these violations were orders of withdrawal, and the remaining 188 were notices of violation. The individual civil penalties
paid for all of the violations on the printout range from a low of .
$9 to a high of $6,300.
For the 6-year period covering respondent's prior history of
violations, the violations issued at the mine in question averaged
185 a year. For an operation of its size, I cannot conclude that
respondent's overall track record during this period of time is
indicative of any total disregard for the safety and health of its
workforce~ I conclude that respondent has a moderate history of(
prior violations, but I do take note of the fact that approximately

1189

20 percent of the prior violations were for violations of the very
same safety standards which are the subject of this proceeding, and
this is reflected in the civil penalties assessed by me in this
proceeding.
Penalty Assessments
In view of the aforesaid findings and conclusions, and after due
consideration of the six statutory criteria for assessment of civil
penalties, and in particular, respondent's size, prior history of
paid violations, and the negligence and gravity issues previously discussed, I conclude and find that the following civil penalty assessments are appropriate for each of the violations which have been
affirmed:
Order No.

Date

30 CF.R Section

Assessment

1 TML
1 TML

12/20/76
02/16/77
02/28/77
03/01/77
03/01/77

7 5.402
75.200
75.301
75.301-1
75.301-1

$ 1~500
2,000
1,000
4,000
__1,600
$10,100

1 Tl\fL
1 n.11
2 TML

Total
ORDER

Respondent is ORDERED to pay civil penalties in the total amount
of $10, 100 within thirty (30) days of the date of this decision.

-/

(_ . /

'·/.. /./, ~/ :.,;:- ,.>r/
- (

~

/

?

/

/I' r /\.-/ ', _ ....~. .;·-: c:;/":;~,:-~- . :/;. :~ . .

<,.__.. George A. Koutras'
. .---

Administrative Law Ju·dge

Distribution:
Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA

22203
Thomas Gallaghe~, Esquire, Peabody Coal Company, 301 North
Memorial Drive, P.O. Box 235, St. Louis, MO 63166 (Cei:tified
Mail)
Standard Distribution

1190

FEDERAL M!NE 5.t'tflETY r~NO HEALTH tl!EV!EW COMMISSiON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 Wll.SON 60ULE\'ARD
ARLINGTON, VIRGINIA 22203

AUG 2 9 :379
Civil Penalty Proceeding

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

Docket No. BARB 79-108-:PM
A.O. No. 38-00138-05001

.v.

Columbia Mine
PENNSYLVANIA GLASS SAND CORP.,
.Respondent
DECISION
Appearances:

Leo McGinn, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the petitioner;
Jeffrey J. Yost, Esq., Berkeley Springs, West Virginia,
for the respondent.

Before:

Judge Koutras
Statement of the Proceedin~

This is a civil penalty proceeding pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on November 16., 1978, through the filing
of a petition for assessment of civil penalty, seeking a civil penalty
assessment for nine alleged violations· of the provisions of certain
mandator.y safety standards. Respondent filed an answer and notice of
contest denying the allegati~ns and requesting a hearing. A hearing
was held in Columbia, South Carolina, on April 17, 1979, and the parties were afforded an opportunity to file posthearin~ proposed findings, conclusions, and briefs. Respondent filed a brief and proposed
findings and conclusions and the arguments set forth therein have
been considered by me in the course of this decision. Petitioner
submitted no posthearing arguments.
Issues
The principal issues presented in this proceeding are {!) whether
respondent has violated the provisions of the Act and implementing
regulations, as alleged in the petition for assessment of civil penalty filed in this proce~ding, and, if so, (2) the appropriate civil
penalty that should be assessed ~g~inst the respondent for the alleged

1191

violations, based upon the criteria set forth in section llO(i) of the
Act. Additional issues raised by the parties are identified and disposed of in the course of 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, (L~) 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 ~seq.

2.

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

3.

Commission Rules, 29 CFR 2700 .1 ..£.1:. seq.
DISCUSSION

The section 104(a) citations at issue in this proceeding were
issued on March 13 and 14, 1978) during an inspection of the mine, and
they allege violations of the following safety standards:
Citation No. 103201, 30 CFR 56.12-34:
An unshielded light bulb was being used in the trailer at the
bag house. Three men were loading bagged flour. in the trailer for
shipment. The bulb was 5 feet from the floor at the trailer hanging
from a nail. This was a 110-volt circuit.
30 CFR 56 .12-3L; states: "Portable extension lights, and other
lights that by their location present a shock or burn hazard, shall
be guarded,"
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Herle Slaton, testified th&t in March of 1978, he
made frequent inspect.ions at respondent's Columbia Mine and that on
approximately 15 other occasions he visited the mine. The mining
operation consists of sand, ~hich is mined in open-pit fashion with a
front-end loader, and approximately 43 to 45 men are employed at the
mine which operates three shifts 7 days a week. On M:arch 14, 1978,
he wrote and served upon plant manager John Michner, Citation
No. 103201 (Exh. G-1), for a violation of 30 CFR 56.12-34, for using

1192

an unshieJded light bulb. Material was being bagged, put on a belt
conveyor from the bagger, and the bags were then carried into a
tractor trailer that had been backed into the loading dock, and
employees were stacking the bags on pallets. The light bulb in question was hanging on nails and strung along the wall inside the closed
trailer approximately 5 feet f~om the floor and 8 to 10 feet back
from. where the employees were wocking and was being used for illumination. Normally, a grounded wire cage enclosing the light bulb is
provided. However, in this case he saw no evidence of any guard or
shield in the area. This was primarily a nonserious type of violation, although it could possibly result in a f#tality. If someone
were to contact a lighted bulb, a burn could result. If the bulb
were broken by someone bumping into it or hitting it with an object,
he could be cut. The 110 watts could em.it enough of a shock to kill
someone. The light bulb had been unshielded for approximately an
hour and a half to 2 hours, and the foreman would normally be responsible for seeing that the bulb is shielded (Tr. 14-23).
On cross-examination, Inspector Slaton testified that the foreman was not present at the time the violation occurred, but that he
was present at the bagging area, a1d for part of the time while he
was there. It is not necessary for an employee to come into contact
with both sides of the bulb filame11t simultaneously in order to
become shocked, and he believed it is possible for someone to grab
the energized side of the bulb that was exposed plus a ground wire.
Three men were loading the truck using a retractable conveyor
which extended itself up to where they were loading and retracted as
they loaded the truck and moved back in the truck. During the time
he was observing the men, the light was always 8 to 10 feet behind
them. After he observed the violation, he asked the men to correct
it and 30 minutes later after he came back to check on it, they had
already taken the light out and replaced it with a grounded circuit,
and it would not have been possible for them to correct it any sooner
(Tr. 23-32). The trailer was an "18-wheeler, 11 approximately 40 feet
long and 8 feet wide (Tr. 32-36).
Respondent's Testimony
John Michner, plant manager, testified that guarded extension
lights are available at the plant and are normally obtained by
employees by asking a foreman or supervisor for a storage requisition
slip for the trouble light and then taking the slip to the storage
room and exchanging it for such a light. Trouble lights are used
throughout the plant as required on maintenance jobs, and each maintenance man has one in his locker, or will obtain one if he feels it
is required on the job, From July 24, 1978, to Apr:ll 2, 1979,
14 trouble lights were used at the plant, and some were damaged and
had to be replaced, but the majority disappear on the job,!·~·' they
are prob&bly stolen (Tr. 36-38).

1193

On cross-examination, Mr. Michner stated that the light in question was stored in a locker in the bagger building along with other
valuable equipment, and the leadman and bagging crew normally install
the trouble lights. With regard to checking the installation of·the
light for safety, the shift foreman will normaily go underground wben
a bagging crew is starting, but he is usually there a few minutes to
make sure that the right material is being bagged in the proper blocks·
and on the proper pallets. Although the shift foreman's duties
include checking for safety violations, he will normally attend to
other duties and will not return unless there is a problem.
Mr. Michner stated that the plant did not. specifically have a
safety director nor a safety manager at the time of the alleged violation, nor was there a formal safety training program. Safety meetings, however, are held four times a year for all employees (Tr.
39-41).
Citation No. 103202, 30 CFR 56.12-8:
The electrical wiring for the start-stop switches and the wind-up
reel were not bushed with insulated bushings. These wei;-e all on the
power curve conveyor. No energized circuits were exposed..<~ This was a
480-volt circuit.
30 CFR 56.12-8 states:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through
metal frames, the holes shall be substantially bushed
with insulated bushings.
Petitioner's Testimony
Inspector Slaton confirmed that he issued Citation No. 103202
because the wiring for the start-stop switch and the wind-up reel on
·the power curve conveyor were not bushed with insulated bushings.
The power curve conveyor is the conveyor that is used to load trucks
and rail cars with bagged sand, and it is the same conveyor that was
being used in the previous citation concerning the unshielded light
bulb. The wire from the wind-up reel leading into the receptacle
holding the start-stop switches had possibly been spliced and the
outside insulation had been cut away leaving the circuits going into
the receptacle without a bushing. These circuits were not energized.
The purpose of the bushing is to keep the wires going into the receptacle hole from vibrating and moving, and it serves as insulation.
Mr. Slaton was concerned that the 6 inches of wire going into the
receptacle box had not being bushed.

1194

Inspector Slaton indicated that since the conveyor belt was
running at the time ~nd was on a 480-volt circuit with the wires
laying loose in the hole, there was a possibility that they would
vibrate through the smaller amount of insulation,.which would cause
them to short out into the metal conveyor, thereby causing the conveyor to become energized with the voltage. There was the possibility of electrical shock and fatality resulting from men coming in
contact with the conveyor and being grounded at the same time, and in
his opinion, the voltage was sufficient to produce a lethal affect.
Men would normally be in contact with the conveyor while loading and
unloading and he had no idea how long the condition existed. He
assumed that maintenance personnel would be re.sponsible for inspecting the wiring and bushings (Tr. 41-47).
On cross-examination, Mr. Slaton identified a picture of the
receptacle box in question. The individual wires coming out of the
cable entering the box were individually insulated and he assumed
that the part of the cable which had been stripped back resulted from
some repairs made inside the box. The individual unut-type 11 bolts
which hold the cables entering and exiting the junction box were
intact and in place, but three of the wires inside one of the cables
entering the box were stripped back approximately 6 inches. He did
not know what was inside the box behind and at the ends of the "nuttype" bolts. From his experience, however, they are the devices which
contain the insulated bushings. The individual wires appeared to be
well-insulated and no energized circuits were exposed (Tr. 47-51).
On redirect examination, Mr. Slaton stated that the three wires
which had been stripped back were not fitted inside and dovm through
the bushing into the junction box. However, the wires did go thi:ough
the bushing into the box, but the outside insulation was taken away
although they were individually insulated (tr. 51-58).
When asked whether the circuits inside the junction boxes are
required to be approved by MSHA, Inspector Slaton responded that they
are supposed to be; however, the only way that inspectors would have
any way of knowing whether it was properly wired or installed, is to
shut down the equipment, energize the circuit and open the boxes,
which inspectors do not do except.on electrical inspections. To his
knowledge, at the time of the inspection, there was nothing wrong
with the particular junction box at issue (Tr. 59-62).
Respondent's Testimony
Mr. Michner stated that the piece of equipment involved in the
citation is a telescoping conveyor, and since the start-stop buttons
are on the end of the conveyor, the buttons move as the conveyor
moves. The wire or cable running to the button is stored on a
wind-up reel on the stationary part of the conveyor, and as the conveyor is extended the wire is pulled from the reel. The conveyor

1195

was supplied with an inadequate oi marginally adequate storage capability on the reel, and it causes problems. If the conveyor is
extended beyond its design length, it pulls the cable from the
buttons since the cable is not as long as the length to which the
conveyor could be extended. Although the cable itself was properly
insfa-llect, since the cable itself went through the bushing on the
box, when the conveyor was overextended, it would 'pull the cable out
of the bushing and the slack that was used in the box to make up the
start-stop button was then pulled out through the bushing. Mine
management did not initially know how to correct this situation since
more cable could not be added due to the lack pf room on the storage
reel. However, the .conveyor buttons have since been moved farther
down the conveyor to correct the situation permanently. On the day
the citation issued, the same procedures were followed, that is, the
buttons were moved and the cable was pulled back through the bushing.
·The bushings around the hole in the switch box were still intact.
Although there is no regular electrician on the payroll at the plant,
a· contract electrician has been working at the plant for the most
part on a fulltirne basis for a number of years (Tr. 64-66).
On redirect examination, Mr. Michner stated that the mine has an
ungrounded delta system, and if one of the three phases touches the
ground anywhere in the plant for one reason or.another, it will energize the ground and it will register on one of the ground detection
meters in the control room. By turning off the equipment around the
plant, an electrician can isolate the grounded equipment and locate
~t.
Normally, the equipment will continue to function and there is
no shock hazard beca.use in order for there to be a shock hazard, a
person has to get his body or some part of his body between areas of
two different voltages.
On recross-examina~ion, Mr. Michner stated that if the insulation
on two of the individ~al conductors had broken during the telescoping
and the two wires touched each other, there would be a sh0rt circuit,
which would trip the ci tcuit breaker and deenergize the equipment. If
one conductor broke doWt, the equipment would continue to run, but one
phase would be touchin8 the ground and the conveyor and ground would
be energized to 480 volts. In such a circumstance, he did not believe
there would be any potential for a·nyone to get hurt, but he would not
go as far as to say that the system is entirely fail safe (Tr. 70-72).
Inspector Slaton was recalled aG the court's witnes~ and drew a
sketch of the condition which be cited (Exh. ALJ-1). He stated that
the individual wires remained intact and the outer.insulation of the
main ca.ble came loose. The bushing was inadequate because it allowed
the main cable cover to slip back, thereby exposing the individually
insulated wires (Tr. 72-76).

1196

Citation No. 103204. 30 CFR 56.16-9:
-----------'
-·
A tr~ck nnd rolling dolly was needed for chRnging the No. 2
scrubber liners. There was no way for men to stay clear 6£ suspended
loads. One man voul<l need to work under the load. This is a pe~·:i.odic
job done by maintenance.
30 CFR 56.16-9 states:
loads. 11

"Hen shall stay clear of suspended

Petitioner's Testimony
Inspector Slaton described the scrubber o~eration and identified
a picture of the unit in question after the condition was abated
(Exh. R-2). The scrubber liners are cleaned perio<licelly and in
order to facilitate the cleaning process, the scrubber motors and
other scrubber parts, such as guards, are lifted out by means of a
chain attached to an overhead steel beam. Once lifted out, the parts
would remain suspended above the scrubbers with no means of pushing
them out of the way, and men would have to work under the suspended
loarls while working on the scrubb2rs. A track-and-roll dolly uas
installed to abate the citation and this allowed the machinery to be
hoisted up and moved out of tbe way of the men working under the
suspended loads. The equipment lifted out might \.;eigh 1,500 pounds,
and if it fell on so~eone it would be fatal (Tt. 79-88).
On cross-exs.mination, Inspector Slaton testified that he did not

perso~1-aTly
. see any-;;~rking under any suspended load while chang-

ing out the liner. The condition which he believed constituted a
health and safety violation was pointed out to him by the miners'
representat:ive who accompanied l1im during his inspection, and hi8
testimony has been a reiteration of what the miners' representative
told him (Tr. 88-89).
On redirect examination, Inspector Slaton testified that he was
accompanied on his inspection by Robert liowles, the miners' representative and HSHA inspector Earl Diggs. Upon arriving at the scene of
the alleged violetion, Mr. Bowles remerked that a way was needed to
keep men out from underneath the scrubbers. Although there was a
rolling dolly installed at another plant location which provided a
means for moving a suspended load away from the area where the men
were working, no such equipment had been provided at the area where
the alleged violRtion oc6urred. Mr. Bowles pointed out to him the
need for providing a way for moving a load away so that the men wuuld
not be working directly under it. Plant Manager Michner agreod that
men had to stay under the load while they were changing the liners,
and according to Inspector Slaton, Mr. Bowles contended that m•?.n were
forced to remain under the suspended load while they were changing
the liners. Mr. Slaton questioned him about this in the presence of
Mr. Michner, and he discussed with Mr. Michner the procedures tha.t

1197

were involved in changing the liners. During the conversation, there
was no denial of the fact that the liners had to be chan~ed in the
scrubber nor the fact that the men were working under suspended loads
while this was being done (Tr. 100-104).
On recross-examinatior~, Inspector Slaton stated that the guards
are located over the top of the four scrubber motors and that when the
scrubber lining is changed, the rainets manually lift out the scrubber
screen or guard a~d set it aside since there is no hoist for the
guard. The motors are lifted out individually one at a time rather
than lifting all four motors out at any one time. A hoist was- fastened to an overhead beam and a chain was lowe-red down and hooked to
the motor so that it could be lifted up with the hoist. According
to Inspector Slaton, Mr. Bowles stated that the motor was left suspended while the men worked on replacing the liner, but that it was
tied. off with a safety chain while suspended. Under the "Gravity 11
section on his inspector's statement, Inspector Slaton testified that
he had indicated "improbable" Hith respect to "the occurrence of the
event against which the cited standard was directed" since the safety
chain was always used to support the load in case the suspension
failed (Tr. 104-107). Mine management has always been cooperative in
making any changes he has recom1;iended, including the installation of
the track and dolly installed to abate the citation (Tr. 109). The
installation of the dolly at the first locatiory was done voluntarily
by the operator rather than as the result of a citation or a notice,
but Mr. Slaton had no idea as to why a similar apparatus was not
installed at the location in question at the same time. '.fhe operator
freely acknowledged that the men worked under the load when they
~hanged the liners (Tr. 113-114).
Citation No. 103205, 30 CFR 56.11-1:
A working platform was not provided for maintenance.on the flourloading dust collector air slide. Two men would be involved in this
work. This work is only done periodically.

30 CFR 56.11-1 states: "Safe means of access shall be provided
and maintained to all working places. 11
Petitioner's Testimony
Inspector Slaton confirmed that he issued Citation No. 103205
because there was no work platform installed adjacent to the ·air
slides which are approximately 12 to 18 .feet above the ground and
under the flour-loading dust collector. Periodic maintenance is
performed on the air slides and a platform is required due to the
fact that the air slides are suspended above ground. Work was performed by means of safety belts and lines used by workmen who would
climb out on a beam to work on the slides. He has never seen any
employees performing maintenance on the particular air slides which

1198

he cited, although he has observed such work perfotmed on other air
slides which had been provided with working platforms. He does not
consider the use of safety belts and lines to be safe since sdfety
belts may not always be used by the men. Although safety belts were
generally available at the operation, they were not readily evaiiahle
to the Den at the particular location cited at that particular time
(Tr. 125-128). With respect to the risk of injury, Inspector Slaton
stated that he is. of the opinion that serious injury could result if
men did not wear their safety belts, but that if a man was wearing
his safety belt~ and everything was held intact, any injuries incurred
would be bruises or possibly broken ribs. He made no attempt to
ascertain why a walkway was not provided, although they were provided
on other air chutes (Tr. 129-130).
On cross-examination, Inspector Slaton testified that he did not
see anyone working-on the air slides, and he acknowledged that his
·testimony is based on what the miners 1 representative told him dm:ing
his inspection when he pointed out the area to him and deGcribed the
condition. He does not know how often the air slides need to be
replaced, but believed it was 11 periodic, 11 but he did not know ho;.r
often. In order to get into the area to repair the slides, the men
used steps and walkways, which were safe at the time. They would then
have to line themselves off to reach the slide (Tr. 130-131).
Citation No. 105601, ~O CFR 56.14-1:
The flat belt drive on the sand floatation tanks was not guarded.
The pinch point was approximately 4 feet from the floor.
30 CFR 56.14-1 states: "Gears; sprockets; chRins; drive; head,
tail, and t::ikeup pulleys; flywheels; couplings; shafts; sawblades;
fan inlets; and similar expose<l moving machine parts which may be
contacted by persons, and which may cause injury to persons, shalJ be
guarded."
Petitioner's Testimony
MSHA inspector Earl W. Diggs testified that he issued Citation
No. 105601 (Exh. G-6), for a viOfation of 30 CFR 56.14-1, because upon
observing the skimmer paddle wheels turning on the flotation tanks
inside the mill building, he noticed that the flat drive at one end
of the skimmer was not guarded. The flat belt drive is an electric
motor driven paddle whee"i that skims floating waste materials off the
sand-cleaning tanks. The paddles are driven by a flat belt which has
a pinch point at the motor drive pulley and at the paddle wheel
pulley. He required a guard to be put over the drive pulley, at the
electric motor, and it covered the complete belt. The danger of someone getting caught in the upper pinch point was not serious, but the
motor end pinch point was serious because that is a drive. After the
situation was corrected, the guard served to protect persons from the

1199

pinch point at the drive. The danger of a guard not being in place
is that a man, when performing adjustments such as opening valves to
let the water in, could possibly slip and fall, or he could reach to
grab something to keep him from falling and get caught in the pinch
point. However, it is customary not to change the paddles without
first locking out the circuit. Inspector Diggs indicated he would
consider the violation to be nonserious because if a man's clothing
got caught in the pinch point, his arm could possibly become twisted.
He did not know why the drive was not guarded, and did not: know how
long it had been unguarded since this is the first time he had noticed
it. He did not know \vhether a maintenance man was regularly assiened
to perform maintenance on the belt (Tr. 148-15~).
On cross-examination, Inspector Diggs stated that after he issued
the citation, it took a "few hours to install the cover, and that it
was dorie promptly. The drive belt was a flat belt and not a V-shaped
pulley sb there was not a groove that somebody could get caught in.
The paddles turn fairly slow and it was possible for someone to grab
one of the paddles, as well as the belt itself, and stop it from turning. The pinch point was located at the end of the tank itself,
within approximately 3 feet of·a couple of water valves that appeared
to be well-used. He recalls filling out an inspector's statement
after the inspection and he remembers checking the box under "Gravity"
and stating that 11 [t]he pinch point was in an out of the way position." He also indicated on the statement that it was "improbable"
that someone could be severely injured on it (Tr. 154-156).
Inspector Diggs acknowledged that he had inspected the plant
before and he had never previously noticed a guard. The belt uas
fairly loose on the drive and there was no heavy tension. A p~rson
could reach up and hold the paddles and this would stop the belt frcm
turning, but it would not stop the drive pulley from turning and
grinding away in one's hand. The pulley sheave is located approximately 4 feet from the floor, while the drive pulley is higher up in
the air, approximately 5 or 6 feet. Once the paddle is stopped by
hand, the pulley is also stopped from turning.
Since the tension was not enough to turn the paddle wheel, there
is a possibility that if someone got his sleeve caught, he could pick
it out by slowly turning the belt. However, there is also the possibility of someone getting caught in the keyways, locks, or fastening
nuts of the flat belt, that is, inside the pulley. The keyways are
located in retainers and hold or lock the pulley onto the shaft, hut
he does not recall whether or not the keyways were exposed (Tr.
156-161).
In response to questioning by the bench, Inspector Diggs stated
that the area involved was a passable, but remote area where someone
would seldom pass through. The pinch point was located away from
travelways. Any maintenance needed to be performed on the pulley

1200

de~ice would likely consist of regular belt mainte~ance or the repair
-of a broken belt. Removal of the guard could be accomplished by
removing two bolts on each side of the guard. The condition was
abated on the same date as the citation issued--at 10:10 p.m. that
night (Tr. 162-163).

Respondent's Testimony
Mr.• Michner testified that the guard that was obtained to abate
the condition came from a local fabrication shop, since there are no
facilities at the mine to do the type of fabrication required. He
acknowledged that the belt could be stopped frpm turning by grabbing
it in one's hand. Although he has never measured it, he estimated
that the upper drive pulley is 7 to 8 feet from the floor and that the
lower pulley is approximately chest,...high. There had never previously
been a guard on this particular pulley before, and no inspector previously suggested that the pulley or belt be guarded. If such a suggestion had been made, then it would have been done. No one hc:d ever
been injured while the belt was unguarded, and the reason that the
belt had not been guarded is that it never occurred to anyone that
there was a hazard there. The machine was manufactured by Denver
Equipment Company, which has made 'l million such machines, and over
the years, he has never seen one of these machines guarded. The
machine in question has been running unguarded.at the plant since
1961. , Before he came to work at the Columbia Mine, Mr. Michner
worked at respondent's plant in New Jersey, where there are six identical machines that have been running since 1962 without guards; how~ver, such machines are probably now guarded.
He is certain that
inspectors who visited the mine had previously observed the condition
since the machine was located outside his office window and anyone
who walks on the main walkway through the wet process, walks past the
machine (Tr. 165-169).
Citation No. 105603, 30 CFR 56.12-8:
The electric wiring entering the acid pump drive motor did not
enter through proper fittings. The wet process building. The rr.eter
is fed by a 110-volt system.
Petitioner's Testimony
MSHA Inspector Diggs testified that he issued Citation No. 105603
after he observed insulated wires· going into the junction box on the
acid pump motor through a hole in' the junction box. He identified
Exhibit R-4 as a photograph of the equipment which was cited. The
conduit leading into the junction box at the bottom of the photograph
was broken loose and the wires ·were sticking out, The wires came out
of the conduit and went into the motor and he could not recall whet:-ter
the box shown in the photograph was there at the time of the citation.
The wires were insulated and taped. However, someone could have

1201

stepped in or tripped on the wires, thereby pulling them out and
shorting the motor. The citation does not involve improper fittings,
but rather, unprotected insulated wiring~ The wires were hooked to
the motor, and while they were taped, they were still left expos?d
t11d inadequately protected from someone walking on them or tripping
over them (Tr. 170-176).
Inspector Diggs stated that the condition he observed could possibly affect the men opeiating in the plant area, i.e., the maintenance personnel who go in to check the acid pump for-the ac.id flow
into the system. Since the area involved is a wet process area, it
is possible that a person performing maintenance duties there could
step on
the wires often enough so as to wear the insulation down,
thereby possibly being fatally electrocuted. The likely result of
the condition which he observed is possible shock, burns, or acid
inhalation from a fire that could result from shorting out the
110-volt motor (Tr. 176-177). He believed that the operator was not
aware of the condition until it was pointed out to him, and there
was no required electrical inspection to be performed that would
make the operator aware of the condition (Tr. 177-178).
On cross-examination, Inspector Diggs testified that the motor
was smai 1, approxiruately between three-quarters to one horsepower.
His purpose in issuing the citation was to insure that a proper junction box was installed on the elect:.rical motor~ He confirmed his
previous testimony that wires '~ere coming out of a conduit rather
than out of a cable, and indicated that the distinction between cable
and wires is that insulated wiring has less protective insulation
~round it than insulated cable since insulated cable has two types of
insulation--onc type of insulation around the wire and then another
type coopletely around the cable. Mr. Diggs conceded that on the
citation he stated.that the wires did not enter through proper fittings, and then acknowledged ad1nitting that what is involved is not a
cablei but rather a wire. Section 56~12-8 does not require wires to
have proper fittings and it only applies to cables.
On redirect examination, Inspector Diggs verified his previous
statement concerning the conduit, but indicated it was not connected
·to the motor at the junction box. The conduit, according to the
inspector, is similar to wires and the cable because there·i~ a
double protection, i.e., the conduit protects the wiring and the
outer insulation protects the cable (Tr. 181-182).
On recross-examination, Inspector Diggs testified that if a cable
were involved, it would be connecte·d to the motor and that either the
cable or the conduit would terminate in or at the junction box at the
connection to the motor. He was not aware of any standard that
requires power wires to be inside a conduit or in a cable. Thus, the
operator has a choice whether to use wires or cables (Tr. 182-183).

1202

Respondent's Testimony
Mr. Michner testified that the power wiring to the acid pUt:ip
drive motor came through a rigid conduit fastened on a column and the
last 12 to 18 inches between the rigid conduit and the motor had no
protection for the wires. The wires came out of the conduit, were
fastened to the wires pigtailed out of the motor with wire nuts and
tape, and were all exposed without a flexible conduit or junction
box. The inspector wanted the wires to be guarded, that is, he
wanted them protected in some fashion. However, he could not recall
whether the inspector specified the manner in which he wanted such
to be accomplished, but the installation of a junction box would be
the logical approach for protecting the wires. The pump in question
was located on a small steel platform, approximately 12 inches off
the floor. Although it was near a normal work area, there was no
traffic through the area, and it was very unlikely that someone would
step on it. The only person who would probably be in the vicinity
adjacent to the motor would be an electrician, and the size of the
electric motor is one-twentieth horsepower (Tr. 184-186).
In response to a question from the bench, Mr. Michner stated
that the wires were insulated and that there was a bushing on tre
motor itself. In abating the condition, a cover was put over everything in order to protect the wires, and the existing wire nuts and
bushing are still in the box. In his opinion, the use of a box is
the more professional way of protecting the wires, etc. Assuming the
citation was to be vacated, Hr. Michner stated that he would not undo
what was done and put things back in their original condition (Tr.
186-188).
Citation No. 105604, 30 CFR 56.12-30:
The electrical junction box on the drive motor for the power
tank dust collector at the top of the flour tanks was torn loose.
The motor is fed by a 480-volt three-phase system,
30 CFR 56.12-30 states: "When a potentially dangerous condition is found it shall be corrected before equipment or wiring is
energized."
Inspector Diggs testified he issued the citation in question
after climbing to the top of the dust collector drive motor and
observing that the junction box had vibrated loose and was hanging
down. It was physically separated from the motor, but it had not been
torn loose. The wires were still leading from the motor to the junction box, the motor was located ap~roximately 3 to 6 inches from the
junction box, and the equipment was energized. He considered this to
be a potentially dangerous condition because with continued vibration,
it is possible that the insulation could have worn off the wires, and
if there was a breakdown in the grounding system, the mill building

1203

could have been energized. Anyone walking from the ground to a
ladderway and then reaching up to grab the handrails to climb up could
have been injured by electrical shock. The amount of voltage being
carried ·though the wires depended upon how many phases could break
through the insulation, and one phase is approximately 177 volts.
Since the conditions outside at that time were dry, any shock would
be nonserious. 'l'he condition ,,ras corrected immediately by reattaching
the junction box to the motor (Tr. 190-195).
On cross-examination, Hr. Diggs testified that the electric motor
was located at- the top of the flour tanks at a height of approximately
50 to 60 feet. Since there was nothing located above this area, it
was probably one of the most remote
areas in"the plant. He recalls
indicating on his inspector's statement that ''it is improbable that
someone would get hurt because the circuits were locked out when someone was up in that area working on the equipment.'' In his estimation,
the possibility of someone being injured by the condition would be
improbable but not impossible. There was no indication that the operator had prior knowledge thn.t the junction box had become dislodged.
With respect to the requirements of the safety standard regarding the
finding of a potentially dangerous condition, the inspector believed
that the standard means that when such a condition is found, it should
be deenergized and corrected before it is reenergized (Tr. 195-198).
Apart from the fact that the junction box was dislodged from its
normal place, the only other defect that Mr. Diggs could detect was a
screw missing from the cover, but the cover itself was still in place.
His concern was that if the dislodged junction box was allowed to
remain, it could possibly get worse. The first citation covered the
situation v.rhich he found, and although he wrote 11 junction box cover 11
on the first citation out of haste, what he actually meant was 11 junction box, 11 He did not personally amend the citation because he was
out of the area (Tr. 199-201).
Citation No. 103206, 30 CFR 56.12-32:
A junction box cover for the sending generator on the No. 1
separator in the mill was not kept in place. This was about 4-1/2
feet from the walkway with no energized circuits exposed. About
four men would pass within 5 feet of the violation per shift, This
was a 110-volt circuit.
30 CFR 56.12-32 states: 11 Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all
times except during testing or repairs."
Inspector Slaton testified he issued the citation after finding
that the junction box cover was not in place on the box located on the
sending generator in the upper floors of the mill building, The circuits passing through the junction box were exposed, but were wellinsulated. Although the cover is normally kept in place with screws,

1204

there was no cover on the junction box, and it was not under testing
or in maintenance. The violation occurred on the production shift
when the equipment was running, and in the inspector's opinion, the
violation was nonserious since the exposed circuiLs were wellinsulate<l. In his opinion, any hazard would result from continued
vibra'tion wearing on the innulation, and someone possibly getting :into
it from the cover not being in place. The condition occurred in an
area where mill and maintenance people passed by, and approximately
four-men per shift would pass within approximately 5 feet of the location in question. If the insulation were to become frayed to the
extent it would expose the electrical circuits and people come close
enough to it, they could be fatally shocked by. the 110-volt circuit.
In his opinion, if a person totiching the circuit were standing on a
metal floor, the circuit would pass through him, He was unable to
determine how long the cover had been missing, and he did not see a
cover anywhere in the area (Tr. 202-207).
On cross-C?xamin:.1tion, Mr. Slaton stated that the junction box
cover would be facing down toward the floor when in place, and he
identified a photograph of the box in question (Exh. R-5, Tr.
207-209).
Respondent's Testimony
Mr. Michner confirmed that the junction box faced toward the
floor. Re also stated that the wires were properly insulated, and
because they were hanging out of the junction box with wire nuts on
them (as in the citation including the acid pump), they were highly
visible. In his opinion, there was no justification for the missing
cover, and an electrician had obviously made some connection or reconnection and had not replaced it. Although he admitted to having
experienced problems with respect to employees removing junction box
covers and forgetting to put them back on, he had no reason to believe
they were stolen, and he was not present when the citation was issued
or abated (Tr. 211-214).
Citation No, 103207, 30 CFR 56.12-32:
The junction box on the pump house sump pump was not kept in
place. This motor was in a remote area in the corner of the pump
house. It was 8 inches from the floor. The only time anyone was
exposed to this violation was during maintenance on the sump punp.
No energized circuits were exposed. This was a 110-volt circuit.
Inspector Slaton testified that he issued the citation in question after observing a pump in the sump pump room with the junction
box cover missing and a wire exposed. He observed no cover in the
area and the exposed wire was well-insulated. The violation was not
serious since there was adequate insulation on the wires. However,
if the circuits become exposed where the energized wiring is exposed

1205

arid.someone comes in contact with it, the situation becomes more
serious because the location iuvol ved was a •·:et area. The pump was
portable, and when in use, it rested approx~nately 8 inches from the
floor. In order for someone to be injured if the·wires were exp0sed,
all that would be necessary would be for someone to come into contact
with it while walking past it. The frequency of movement of the pump
would vary depending upon how 6ften it was needed, and he was not able
to determine how long the cover plate had been missing (Tr. 214-218).
On cross-examination, Inspector Slaton indicated, that the pump
in question was located in the back corner of the sump room in an
out-of-the-way and remote location and was not. operating when he
observed it (Tr. 218-219).
In response to bench questions, Mr. Slaton stated that the only
time anyon~ would be exposed to the condition cited would be during
maintenance or adjustments to the pump •. The pump motor was a small
llO-volt motor and the junction box was missing from the motor pump.
The pump was a portable type which he believed was being stored in
the area and he assumed that it was used in the sump area when needed.
In order to ascertain whether the pump was down for maintenance, he
asked the person who accompanied him, and since no one said anything
about the pump being down for testing or maintenance, he assumed that
it was not (Tr. 219-222).
Findings and Conclusions
Citation No. 103201, 30 CFR 56.12-34
Fact of Violation
This citation was issued because the inspector found an
unshielded portable "trouble-light" bulb being used as lighting in a
tractor trailer which was being loaded with bags of sand. The ~ita
tion states that the light bulb was hanging 5 feet from t~e floor of
the trailer. The inspector testified that the light bulb was out of
the reach of the three workers who were stocking sand bags on pallets
in the truck, and that the expo~ed bulb was hanging from a nail on
the side of the truck some 8 to 10 feet back from where the men were
loading. During the time the inspector was observing the loading
operation, the light bulb was always 8 to 10 feet behind the men and
he could recall no one passing close by the bulb while he was there.
Even upon his return a half hour after issuing the citation when the
condition had been abated, the men ~vere still located some 4 to 6 feet
from the bulb.
Section 56.12-34 requires that portable extension lights be
guarded only if the location of the light is such that a shock or burn
hazard is present. In this case, it seems .clear to me that the petitioner has not established that the location of the light bulb was

1206

such as to present -a shock or burn hazard. The light was bein6 usE,d
for illumination and the testimony of tl1e inspector establish~s that
it was always located some 8 to 10 feet behind the men workjng in the
trailer and that it was out of their reach. Even after abatement,
the light bulb was still 4 to 6 feet behind the men, and the inspector
conceded that the usual procedure·was to move the location of the
light bulb back away from the m:sn as the loading process advanced from
the front to the.rear of the truck and as the conveyor was retracted.
Further, the inspector also indicated that during the loading pro~ess
the men would usually stay in one stationary location at the end of
the conveyor while off loading and stocking the material on the
pallets (Tr. 34).
I find that the petitioner has failed to establish that the location of the light bulb in question was such as to constitute a shock
or burn hazard and that a violation of section 56.12-34 has not been
established by a preponderance of the evidence. The citetion is
vacated.
Citation No. 103202, 30 CFR 56.12-8
Fact of Violation
I find that the petitioner has established a violation as charged
in this citation. Although the start-stop switch wiring passed
through bushings, it is obvious that the bushings were inadequate
since they permitted the wires to be stripped back approximately
6 inches. This condition was apparently caused by the telescoping
conveyor windup reel which had an inadequate takeup capacity which in
turn caused the cables to be pulled away from the stop-start switch.
Althou3h the inspector's testimony is somewhat confusing as to the
conditions which he observed, I conclude and find that it does estab~
lish a violation of section 56.12-8, which requires insulated wiring
passing through metal frames to be substantially bushed with insulated
bushings. Since the wires in question were pulled or stripped back
when the takeup reel was activated, it seems obvious that the bushings
were inadequate since they did not prevent this from occurring. Plant
Manager Michner's testimony confirmed the condition found by the
inspector and it also confirmed tl1:e cause of the cited condition.
Negligence
Respondent's testimony confirms that it was aware of the fact
that the design capability of the conveyor was such as to permit the
cable to be pulled out of the start-stop switch when the conveyor was
extended, This being the case, respondent should have known that the
wiring in question would likely be stripped back and not.held in place··
by the bushings. In the circumstances, I find that the respondent
failed to exercise reasonable care to prevent the condition cited and
that this constitutes ordinary negligence.

1207

Gravity
Although the wires in question appeared to the inspector to be
well-insulated and n~ energized circuits were expos~d, the conveyor
belt was in operation.when the inspector observed the condition and
he believed that a potential electrical shock hazard was present
since men would come in contact with the conveyor while loading and
unloading material. Although respondent's testimony indicated that
the equipment would deenergize in the event a ·short circuit occurred
because of the wiring becoming separated, the fact is that there was
a potential for the conveyor to become energized and the grounding
system was not entirely a failsafe system. Unaer the circumstances
presented, I find that this violation presented a shock hazard and
was serious.
Good Faith Compliance
The respondent demonstrated good faith in achieving rapid compliance. When the citation was issued at 9:45 a.m., the respondent
was given until 9 a.m. the following day to correct the condition.
However, compliance was achieved and the citation was terminated at
4 p.m. on the same day of its issuance (Exh. G-2).
Citation No. 103204, 30 CFR 56.16-9
Fact of Violation
The safety standard cited requires that men stay clear of suspended loads. The standard in question is one of several standards
listed under a general section 56.16, which is headed by the terms
"materials storage and handling." Thus, the initial question presented is whether this standard has any·application to a suspended
heavy load such as a scrubber motor, guard, and other such scrubber
parts which must be lifted out and suspended in order to facilitate
the changing of the scrubber liners or· to perform other maintenance
on the scrubbers.
Although I fail to see the logic in including the cited standard
under a "materials storage and handling" gen.'eral regulatory section,
I conclude that it may be applied to a situation where it is established that men are working under any suspended loads, whether it be
"materials," as that term is commonly understood, or motors or other
equipment.

A second question presented is whether the condition or practice
described by the inspector on the face of the citation sufficiently
described a condition or practice which is in violation of the cited
mandatory safety standard as required by section 104(a) of the Act,
which states in pertinent part as follows: "Each citation shall be

1208

in writin~ and shall describe with particularity the nature of th~
violation, including a reference to the provision of the Act, stacdard, rule, regulation, or order alleged to have been violated."
In this case, although the citation was dated and issued on
March 14, 1978, some 5 days after the effective date of the 1977 Act,
it is obvious that the alleged condition or practice occurred prior
to March 14th. However, since the inspector failed to indicate on
the face of the citation whe11 the alleged condition occurred, and
failed to furnish any details as to the alleged condition or practice,
I conclude that he failed to describe• the alleged violation with
any particularity. For .all I know, the alleged condition may have
occurred prior to the effective date of the Act.
Aside from the anemic evidcntiary presentation by the petitioner
in support of the alleged violation, I find that the "condition or
practice 11 on the face of the citation fails to describe any condition
or practice which amounts to a violation. The "condition" cited
simply recit~s that there was a need for a track and rolling dolly to
change scrubber liners, that there was no way for men to stay clear
of suspended loads, that one man would need to work under the load,
and that the job was periodically performed by maintenance. As
pointed out by the respondent in its brief, section 56.16-9 does not
mention tracks and rolling dollies, and th~condition described does
not state that miners. had in fact ever worked under
suspended ioad.
And, as testified to by the inspector, the scrubber motor was sup_:-ported by a safety chain and could be tied off and S\rung to the side
or possibly set down on the floor so that men would not have to work
under it (Tr. 107).

a

Finally, I come to what I believe to be the most crucial issue
presented with respect to the citution, namely, whether the fact .that
the inspector did not personally obs8rve anyone working under a suspended load is sufficient to support a violation. In this case, it
.i§_ clear thattl:ie inspector did not observe.anyone work{ng {inder a
sus1~E:~1<le_d_l~ad during his inspectio11. --in--is~-uing the citation, he
-rerie<l--on the infor:nation furnisl~ed'- to him by the employees' representative who accompanied him during the inspection.
Although MSHA did not file arty post.hearing brief or proposed
findings and conclusions, counsel at the hearing took the position
that it was not necessary for an inspector to personally observe a
condition in order to support a violation. Citing the language of
section 1J4(a) of the Act, which states in pertinent part "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-~·as violated this Act, or any mandatory health or safety
Standard> '~ '': * he Shall, * * * iSSUe a citation tO the Operator> II
MSHA apparently takes the position that any belief by an inspector
that a violation has occurred, authorizes the inspector to issue a

1209

citation, notwithstanding the fact that such a belief is based, not
on the inspector 1 s personal observations, but o-;_-the observations
or statements of a third party wl10 may or may not have personally
observed a condition or practice constituting a violation.
The testimony of the inspector reflects that during the course
of his inspection, and while accompanied by the employee representative and the plant mn~~ger, the employee representative remarked that
during the· course of ;:cplacing the scrubber liners' the scrubber
motors were lifted up by a chain hoist, tied off with a safety chain,
and while suspended in such a position, the persons performing the .
work were required to work under the suspended motors. According to
the inspector, Plant Nanager Michner confirmed' that this was the case
and did not deny it. The employee representative did not testify,
and Mr. Michner. was not called to testify, although he was present in
the courtroom.
Since MSHA did not file any posthearing briefs or arguments in
support of any of the citations in these proceedings, its position
and theory on which it believes a citation may be supported on facts
outside the inspector's own personal knowledge or observations remains
a mystery. Apparently, HSHA is of the view that the statutory language of section 104(a) authorizing an inspector to issue a citation
if he believes that a mandatory safety standard has been violated is
sufficient on its face to support a citation, irrespective of how the
inspector arrives at- that belief, or irrespective of the evidence produced by the petition.er in support of the alleged violP-tion. Thus,
MSHA's position appears to be that any time anyone advises an inspector of some past condition or practice outside the inspector's 01·m
personal knowledge or observations, the inspector must issue a citation. In my view, such a broad interpretion of section 104(a) raises
serious due process questions, and on the facts and circumstances
presented here, is rejected.
Section 103(a) authorizes frequent mine inspections·and investigations, and one of the purposes of such inspections and investigations is to JE;'termine whether there is compliance with the mandatory
health or safety standards. Subsection (f) authorizes a representativ.e of the mine operator and the miner's representative to accompany
an inspector during the physic~l inspection of the mine made pursuant
to subsection (a), for the purpose of aiding such inspection. Subsection (g}(l) provides in pertinent part that:
Whenever a representative of the miners or a miner
in the case of a coal or other r11ine 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
pbtain an immediate inspection by giving notice to the

1210

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 oi
by the miner, and a copy shall be provided the operator
or his agent no later than at the time of inspection 5
* * *· Upon receipt of such notification, a special
inspection shall be made as soon as possible t-o determine if such violation or danger exists * * *· If the
Secretary determines that a violation or danger doss not
exist, he shall notify the miner or representative of
the miners in writing of such determination. [Emphasis
added.]
Subsection (g)(2) of section 103 provides 1n pertinent part that:
Prior to or during any inspection of a coal or
other mine, any representative of miners or a miner in
the case of a coal or other mine where there ·is no such
representative, may notify the Secretary or any representative of the Secretary responsible for conducting
the inspection, in writing, of any violation of this Act
or of any imminent<la1;·ger--which he has reason to believe
exists in such mine. [Emphasis added.]
It seems clear that sections 103(g)(l) and (2) authorizes a representative of miners to obtain an inspection when he believes there
is an existing condition which may be a violation, and to bring to
the attentfonof the inspector an existing condition which he believes
constitutes a violation. However ,-I-findnothing in section 103 which
authorizes an inspector to base a citation on some past condition or
practice brought to his attention orally by a representative of miners
during the course of an inspection.
Section 104(b) of the 1969 Coal Act, provided in pertinent part
that: "[I]f, upon any inspection of a coal mine, an authorized representative of the Secretary Ln<ls that there has been a violation of
any ~andatory health or safety standard * * *, he shall issue a notice
to the operator or his agent * * *
The January 1975 edition of the Inspector's Manual dealing with
the issuance of notices under section 104(b) of the 1969 Act, states
that apart from imminent danger situations, the issuance of notices
pursuant to section 104(b) is "the primary tool for obtaining compliance with the mandatory health and safety standards'' (s~ction 1.0).
The manual guidelines and instructions for an inspector to follow in
issuing section 104(b) notices state in pertinent part a s< follows as
sections 1.0 and 1.4:
0

When the inspector is satisfied upon inspection
that a condition or practice exists which violates a

1211

mandatory standard his responsibility is to issue a
104(b) Notice and fix a reasonable time for the operator
to abate the condition or practice. Notices of Violation shall be written promptly after a violation of the
Act is observed, * * *· [Emphasis added.]
It seems clear that under the 1969 Act, an inspector was required
to personally obs~rve an existing condition in a mine which he
be(ieved constituted a violation. before [ssuing a notice of violation
pursuant to section 104(b). The 11 f:i.nding" that he was required to
make concerning such a condition was obviously intended to be based on
his personal observations of an existing condi~ion. However, under
the 1977 Amendments to the Act, the language presently used in section
104(a) with respect to the issuance of citations is "believes." Thus,
the question presented is whether the term "believes" means the same
as, or soraething different from, the term 11 finds" as previously used
in the comparable section of the statute authorizing inspectors to
issue citations.
Section lOL~(a) of the 1977 Act provides in pertinent part that:
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, * * * he shall, * * * issue a citation to the
operator. Each citation sh~ll be in writing and shall
describe with particularity the nature of the violation,

***
The connotation of the word "believe" is entirely subjective,
10 C.J.S. 238. In the common and ordinary use of the English language, and in all the general acception of the term, the word refers
primarily and explicitly to the mental state of the believer without
any necessary reg«?rd to the reasons, conditions, ap.d circumstances
which may have caused or influenced the existence of such mental
state; and hence it does not imply, require or mean a reasonable
belief. As pointed out in the cases cited in 10 C.J.S. 238, 239, the
verb "believe" is susceptible of interpretation in varying degrees.
In its most definite and strongest sense, it has been defined as
meaning to accept as true on the testimony or authority of others;
to be persuaded of the truth of anything; to be persuaded upon evidence, arguments, and deductions, or by circumstances other than personal knowledge, and the term has been held equivalent to, and
interchangeable or synonymous with "find."
Words and Phrases, Volume 5, Permanent Edition, pp. 409-412,
indicates that the word "believe" has been construed to mean:
nearly synonymous with rely and means to accept as
true on the confidence of others.

1212

to be convinced or to feel that something is true
or at least probable.
in the sense of "averred" or "alleged".
to credit upon authority of testimony of anothe~,
to be persuaded of trqth of, to regard, accept, or

hold as ·true.
The March 9, 1978, edition of the Labor Department's Inspector's
Manual for the issuance of citations and orders contains the current
guidelines for an inspector to follow when he 1ssues citations for
violations of any mandatory health or safety standards, and I take
official notice of such publication notwithstanding the fact that the
parties did not see fit to bring it to my attention. Section 1.1 of
the manual lays out guidelines for an inspector· to follow when
describing an alleged violation, and it states in pertinent part as
follows:
Elements of a violation description include: An
adequate description of the condition(s) and/or
practice(s), which must set out the fact(s) that cause
and constitute the violation of the Act or a specific
regulation. The description should be written to show
how and why the regulation is violated. The location in
the mine where the violation and/or hazard exists must be
identified for several reasons: (1) to prevent problems
of timely abatement and to inform the operator as to the
area of the mine so affected by the citation or order;
(2) to inform the miners and their representative where
the violation and hazard exist; and (3) to inform other
inspectors who may be required to make the follow up
inspection. Any equipment involved should be properly
identified as well as located and the inspector should
include in his description of the violation, any facts
relevant to exposure hazards to the miners and negli5ence
on the part of the operator. In a few words it must
describe with particularity the nature of each violation.
Section 2.1, which deals with MSHA policy concerning the issuance
of section 104(a) citations, states in pertinent part as follows:
When an inspector finds, or. believes, upon an
inspection or investigation, th~t a condi~ion or practice
exists which violates a mandatory standard but does not
create an imminent danger he is required to issue a
Section 104(a) or 104(d) Citation (except where a Section
104(d) order is issued) and fix a reasonable time for the
operator to abate the condition or practice. (Emphasis
added.]

1213

Section 2.6 of the manual provides guidance for the inspector in
the issuance of citations for violations of Title I of the Act, and
states in pertinent part as follows:
Where violations of any provisions of Title I of
the Act ar~ observed at a mine, or an investigation
reveals that a Title I violation exists, the authorized
representative shall issue the citations on Form 1. On
the Form 1, check the box for citation, and enter type of
action as 104(a), In citing the violation, identify the
proper section ;f the Act.
The ciu~_tion should state specifically when, where,
and how the violation occurred, if relevant, and a
detailed description of the conditions or practices.
A violation of Title I of the Act shall be processed
the same as any violation of Title 11 an·d Title llI of
the Act (mandatory health and safety standards). The
citations should be entered in the proper inspection or
investigation report, if appropriate, and such citations
are subject to civil penalties. [Emphasis added.]
Section 5.0 of the manual deals with the inspector's preparation
of an "Inspector's Statement," which is a form filled out by the
inspector at or near the time that he issues a citation, and which
contains his comments and observations concerning the six statutory
criteria contained in section llO(i) of the Act. The instructions
and guidelines state in pertinent part as follows:
Inspector's Statement Report.

See Form No. 7000-4.

The Statement Report shall be a description of the
conditions, actions of the operator, and circumstances
surrounding the violation which the inspector has
observed or determined by investigation, inquiry, or
discussions with the operator, supervisors, mine foremen,
section foremen, miners or others which lead him to make
:he statements contained in the report. The description
should be concise and brief but at the same time convey
a sufficient description upon which a determination or
recommendations can be made as to the amount of penalty,
The inspector should realize that his analysis and report
will influence and be given weight by others. The
inspector should therefore be able to substantiate the
opinions stated and such statements must be in agreement
with the information contained in the citation or order
issued.

1214

The citation or order issued under the provisions
of sections 104(a), 104(b), 104(d)(l) or (d)(2),
104(c)(l) or (c)(2), 104(f), 104(g)(l), and 107(a) will
best describe by section number the mandatory health or
safety standard which has been violated and will contain
a description of the conditions or practices as observed
by the i~spector upon which he made his determination as
to what caused and constituted the particular violation.
[Emphasis added.]
A review of the legislative history of the 1977 Amendments to
the 1969 Coal Act gives little guidance as to what Congress intended
when it changed the statutory language from "fl.nd s" to "be 1ieves. 11
The Senate bill permitted the issuance of a citation based. upon the
inspector's belief that a violation occurs. The House amendment
required that a citation be based on the inspector's finding that
there was a violation. The conference substitute adopted the provisions of the Senate bill. MSHA's current Inspector's Manual, which
serves as the "handbook" for the guidance of inspectors in the field
while conducting inspections and issuing citations, uses the terms
interchangeably. Curiously, however, the terms are used in tandem
with the terms "inspections" or "investigations," and in several
places where it instructs the inspector to detail the circumstances
surrounding the asserted violation on which the citation is based,
the terms "observed" and 11 exists 11 are consistently used in relationship with the condition or practice found by the inspector. This
leads me to the conclusion that when an inspector is conducting a
routine inspection of the mine, any condition which he finds during
that inspection which prompts him to issue a ci.tntion must be based
on his personal observations during that inspection and it must
relate to an existing condition or practice which is in violation
of the cited mandatory standard.
As noted earlier, sections 103(g)(l) and (2) of the Act, authorize a miner or miner representative to bring to the attention of an
inspector any condition or practice in·a mine which the miner or representative reasonably believes constitutes a violation of a mandatory standard. As a matter of fact, Senate Committee Report No.
95-181, reflects that both of these provisions are based on the
Committee 1 s belief that mine safety and health will generally improve
to the extent that miners themselves are aware of mining hazards and
play an integral part in the enforcement of the mine safety and health
hazards. However, in bringing these matters to the attention of the
Secretary, they must be in writing, and once received by the Secretary, serve as a starting point for initiating an immediate inspection
of the mine by means of a special inspection, with notice of same
served on the operator no later than at the time of the inspection.
If the Secretary fails to issue a cit~tion prior to or during an
insp.ection of a mine in the case. of a condition which has been brought
to his attention based on su"ch a written "reasonable belief, 11 he is

1215

required by suhsection (g)(2) to establish informal review procedures
for the purpose of determining why a citation was not issued and to
cornmunicate the reasons for his final disposition of the matter to
the miner or his representative. Thus, it seems clear to me that
while the statute permits miners and their representatives to bring
to the attention of an inspector conditions which they believe constitute violations of any mandatory standard, two conditions precedent
must be i;net before au inspector may issue a citation. First, the
complaint must be in writing and served on the operator. Second,
HSHA i;nust j_nitiate an immediate special investigation to ascertain
all of tbe facts surrounding the conditions which the complainants
believe constitute· a violation. In such a ci'rcumstance, any conditions or practices found during the special inspection may conceivably
result in the issuance of citations based on the results of that
investigation, and, the citations conceivably could be based on
information developed during the course of that investigation, including statements and testimony furnished by third parties outside of
the personal observations and knowledge of the inspector.
In the instant case, it is clear that the inspector was not conducting a special inspection or investigation (Tr~ 91). As a matter
of fact, petitioner's counsel touched on and alluded to the requirements of section 103 during the following colloquy on the record
(Tr. 96-97):
MR. McGINN: ,., * * I do not know what else the
inspector could do, Your Honor. If he did not cite a
violation here, be could be reprimanded by the Union or
by the miners' representative or other people over him.
ADMINISTRATIVE LAW JUDGE: I cannot conceive of any,
Union or any Management representative reprimanding an
inspector.
MR. HcGINN: I mean for a Union for failure to-an inspector, by his authority, is to cite the violation
where he thinks one exists.
And, at page 117:
ADMINISTRATIVE LAW JUDGE: That is what I am trying
to find out. Was it specifically brought to the attention of the inspector or MSHA before the day of the
inspection, or was it brought out during the course of
the inspection casually?
MR. McGINN: It was· not brought up prior to the
time of the inspection. This was the first inspection
under the new law. The inspector said that it was
specifically pointed out to him during the inspection.

1216

In view of the foregoing discussion, I conclude that the stututory and regulatory inspection scheme distinguishes between regular
mine inspections where the inspection disclo.ses conditions and --p-r-a-c:·tices personally observed by an inspector during the course of his
inspection, and conditions or practices developed during the course
of a special inspection or investigation where the conditions or
practices are developed by me~ns of observations and evidence outside
of the issuing inspector's personal knowledge and observations. In
these circumstances, I find that a condition or practice cited by an
inspector as the basis for a citation in the course of a routine
regular mine inspection must be based on his personal observations
made during the course of that inspection. On the facts presented
here, it is clear that the inspector did not p~rsonally observe any
condition or practice which may serve as the basis for a citation.
And, by failing to include in his citation any information as to when
the v"iolation purportedly occurred, it has not been established that
the alleged violation occurred subsequent to the effective date of
the 1977 Act. Since the standard cited is based on the now repealed
Metal and Nonmetallic Hine Safety Act, the timing of the citation
becomes critical since a proven violation would subject the operator
to a civil pen~lty up to $10,000, a remedy not previously available
to MRHA under the now-repealed Metal and Nonmetal Act.
In addition to my interpretation of the application of section
l04(a), it should be emphasized that the burden of proof in a civil
penalty proceeding lies with the petitioner, and the petitioner must
establish by a pr~ponderance of the evidence that the respondent violated the cited mandatory safety standard. Hearings pursuant to the
1977 Act are conducted pursuant to the Corrmission' s Rules published
at 29 CFR, Part 2700, and they are subject to the requirements of the
Administrative Procedure Act, 5 u.s.c. § 553. Section 1006(d) of
that Acts 5 u.s.c. § 556(d), permits the admission of hearsay evidence, provided it is not irrelevant, imm;:iterial, or unduly repeti-·
tious, and the courts have recognized the admissibility of such evidence in administrative proceedings, Montana Power Co. v. FPC, 185
F.2d 1+91, 497 (D.C. Cci.r. 1950), cert. denied, 340 U.S. 947-0951);
Vitarelli v. Seaton, 359 U.S. 53s:-540-(1959); Willetpoint Oysters,
Inc., v. Ewing, 174 F.2d 676 (9th Cir. 1949), cert. denied, ·-33_8__
u.s. 860 (1949). However, 5 u.s.c. § 556(d) also provides that:
"A sanction may not be imposed or rule or order issued except on
consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative, and substantial evidence~"
According to Black's Law Dictionary (4th ed. 1951), the following
terms are defined as follows:
Reliable:

Trustworthy, worthy of confidence.

Probative: In the law of evidence. Having .the
effect of proof; tending to prove, or actually proving.

1217

Testimony carrying quality of proof and having fitness
to induce conviction of truth, consisting of fact and
reason co-operating as co-ordinate factors.
Substantial: Of real worth and importance; of
considerable value; valuable. Belonging to substance;
actuafly existing; real; not seeming or imaginary; not
illusive; solid; true; veritable. Something worth while
as distinguished from something without value or merely
nominal.
It is Hell settled that mere uncorroboratf;d hearsay or rumor
does not constitute substantial evidence, Camero v. United States,
345 F.2d 798, 800 (D,,C. Cir. 1965); Universal Camera Corporation v,,
NLRB, 340 u .. s.. 474, 477 0951); Consolidation Edison Co,. v. NLRB,
305 u.s .. 197, 230 (1938)..
-I have serious reservations about an enforcement policy that
authorizes an inspector to issue section 104(a) citation (which could
subject an operator to civil penalties up to $10,000), based solely
on oral statements made to him by a third party concerning an alleged
pas·t condition or practice which i:·-..irportedly occurred outside the
inspector's personal observations and knowledge at some unspecified
time prior to his inspection. Such uncorroborated hearsay is in the
nature of rumor and I reject MSHA's attempts to use such "evidence"
as proof and support for the citation and petition for assessment of
civil penalty. On the facts and circumstances presented in this proceeding, I conclude and find that the evidence presented by the petitioner to support the alleged violation is of little.or no probative
or credible value. It is clear that the inspector saw no one working
under any suspended load on the day the citation issued, and his testimony in support of the citation is based on conversations he had
with the miners' representative and plant manager who accompanied him
during the inspection. Further, the inspector admitted that he never
observed the procedure used for changing scrubber liners anywhere in
the plant (Tr. 90), he was not conducting any special inspection based
on a miner complaint (Tr. 91), and the scrubber liners were not being
changed on the day of his inspection (Tr. 92). As a matter of fact,
there is no testimony from anyone _who observed the liners being
changed in the fashion described, and there is no testimony that there
were in fact any suspended loads in the plant on the day the citation
issued or that men were not staying clear of such loads (Tr. 93-94).
The sole basis of the petitioner's case is based on the inspector's
inference that, based on the scrubber liner change-out procedure, as
described to him by a third party, "there had to be a violat.ion"
(Tr. 95).
Arguably, the existence of the violation may be the fact that the
procedures for changing out the scrubber liners necessarily require
that a miner position himself under a suspended load, thereby exposing

1218

himself to possible danger~ That seems to be the petitioner's view of
the violation in this case. Howsver, there is no credible testimony
as to when the scrubbers in question were lifted out and worked on,
who worked on them, or what procedures were followed in accompli<>hing
this task. Here, the inspector conceded that when the liners are
changed out, the scrubber guards are lifted out one at a time and
placed down next to where the work is being performed, thereby eliminating the possibility of anyone working under a suspended guard. As
for the scrubber motors, the inspector conceded that all of the motors
are not lifted out all at once. Each motor is apparently lifted out
individually and one at a time by a chain hoist and then secured or
"tied off" to the side with a safety chain. I.n such circumstances, I
fail to understand how it can be said that one is working under a suspended load, since the motor is tied off and secured in a manner which
apparently meets MSHA's requirements. However, without the critical
. testimony of those individuals directly involved in this procedure,
any rational and intelligent findings or conclusions are impossible.
Although the record indicates. that the inspector was accompanied
cfuring his inspection by the miner representative and the plant
manager, the miner representative was not produced as a witness.
Further, although the plant manager was present in the courtroom, he
was not called as·an adverse witness. The explanation given for failing to call the employee representative is as follows, at page 119 of
the transcript:
ADMINISTRATIVE LAW JUDGE: Was there 8uy particular
reason why this employee that was walking around was not
produced today for testimony?
MR. McGINN: It came to my attention late yesterday
afternoon, Your Honor. I did not see time to do this.
If you wish, we could continue it.
ADMINISTRATIVE LAW JUDGE: No, I am not going to
continue it. The citation was, you know, issued
March 14th of 1978. You mean, for the first time
yesterday, you learned of this?
MR. McGINN: Both. I knew th.at -- Mr. Michner,
who was a witness here, also participated in the
conversation.
ADMINISTRATIVE LAW JUDGE:
MR. McGINN:
that time.

He did what?

Participated in the conversation at

I believe that in a civil penalty proceeding where the petitioner
is seeking to impose the sanction of a fine up to $10,000 for a violation of a mandatory safety standard, the petitioner has an affirmative

1219

responsibility to produce that kind.of evidence which would be admissible and held to be substantial in a United States District Court
civil proceeding, particularly in the circumstances surrounding this
citation, where the evidence need-c·d to support the .petitioner's position concerning its interpretation of section 104(a) was so readily
available. Here, not only did the inspector fail to include in his
citation ·the critical elements of the conditions purporting to be in
violation of the cited standard, but the petitioner at trial failed
to call critical witness'3S who possibly could have supplied testimony
critical to its burden of proof.
On the basis of the foregoing findings and conclusions, Citation
No. 103204, alleging a violation of section 30 CFR 56.16-9, is
VACATED, a.nd a summary of the basis for this action on my part is as
follows:
1. Failure of the petitioner to establish a
prima facie case by a preponderance of any credible or
probative evidence.
2. Failure of the inspector who issued the citation
to describe with any particularity, particularly with
respect to the date of the alleged infraction, a condition
or practice constituting a violation.
3. In a civil penalty proceeding where the petitioner
is seeking a civil penalty assessment based on a citation
issued by an inspector pursuant to section 104(a) of the
Act during the. course of a regular inspection, petitioner
must establish that the inspector's action in issuing the
citation was based on his personal observations or knowledge of the conditions during the inspection.
Citation No. 103205, 30 CFR 56.11-1
Fact of Violation
This citation charges that the respondent failed to provide a
working platform for the dust collector air slide where two men would
be involved in periodic maintenance work. The cited standard requires
that 11 safe means of access shall be.provided and maintained to all
working places. 11
An initial question presented is whether the listing of section
56.11-1 under the general heading entitled "56.11 Travelways," renders
the cited standard inapplicable to the location described in the
citation.
The term "travelways" is defined in section 56.2, the definitions
section of Part 56, as "a passage, walk or way regularly used and

1220

designated for persons to go from one place to another." The evid(~nce
establishes that the air slide in question was located and suspellded
approximately 12 to 18 feet above ground beneath a dust collector and
no walkway was provided. Under these circumstances, there is no way
that the air slide can be considered to be a travelway as defined by
section 56.2, and I conclude that it was not.----UOwevet:", while one can
argue the logic of including section 56.11-1 under the general category of "travelways," the crucial question is whether the cited air
slide location qualifies as a "working place."
Section 56.2 defines "working place" as "any place in or about
a mine where work is being performed." Thus, !3-ssuming it is established that work is performed on the air slide, a safe means of access
must be provided and maintained while that work is in progress at that
location, and I conclude that the cited standard would be applicable,
notwithstanding the possible ambiguity created by including it under
the general regulatory category of "travelway."
The next question presented is wbether the term "safe access"
requires that a work platform be installed every time work is performed on the air slide. Respondent apparently did not believe so
because work was allegedly performed from an adjacent beam with the
use of safety belts and lines. In addition, it would appear that at
other similar air slide locations, either a walkway or work platforms
were provided. Thus, on the facts presented here, there were three
potential ways in which "safe access" could have been provided,
namely, a work platform, a walkway, or safety belts and lines. Since
the standard, on its face, does not specify what would suffice as a
"safe means of access," I can only conclude that this would depend on
the circumstances presented on a case-by-case basis. Since the burden
of proof as to the condition cited lies with the petitioner, it is
incumbent on MSHA to establish that the method used to perform \Wrk
on the air slide in question did not include providing and maintaining
a safe means of access to the air slide. Hhile the inspector indicated that safe steps and walkways were used to gain access to the
air slide area, he obviously believed that the precise location at
which the work was ellegedly being performed on the air slide did not
include a work platform. Thus, the crucial question presented is
whether the inspector had sufficient evidence to support his citation.
This citation is similar to Citation No. 103204, dealing with
the track and rolling dolly, in that the inspector did not personally
observe the alleged condition or practice on March 14, 1978, the date
the citation issued. He observed no work being performed on the air
slide on March 14, nor did he at any time observe anyone performing
any work on the air slide in question. His belief that a violation
occurred was again based solely on information provided to him by the
employees' representative who accompanied him during the inspection.
That information consisted solely of the representative telling him
that at some unspecified time in the past, periodic maintenance was

1221

performed on the air slide by certain unidentified men without the
use of a work platform. The inspector did not know how often maintenance was required or performed on the air slide, nor did he make
any attempts to ascertain why a walkway was not provided at that
particular location as wns the case at other air slide locations.
Further, there is nothing in the record to indicate any effort on his
part to ascertain who performed the maintenance work or when it was
performed, and surprisingly, MSHA did, not see fit to call any of these
men or the representative as witnesses. MSHA's sole proof in support·
of the citation rests on the representative pointing to the air slide
location and advising the inspector that work had been performed there
in th~ past without the use of a work platform.
-In view of the facts and circumstances surrounding the issuance
of Citation No. 103205, citing a violation of 30 CFR 56.11-1, I find
that the citation should be VACATED, and my reasons for this are
the same as those previously discussed with respect to Citation
No. 103204, dealing with the track and dolly conditipn and my findings
and conclusions as to that citation are herein incorporated by reference as the basis for my vacating this citation.
Citation No. 105601, 30 CFR 56.14-1
Fact of Violation
I find that the petitioner has established a violation of the
guarding requirements of section 56.14-1, an<l respondent's testimony
and evidence does not rebut this fact. The exposed pinch point at
the drive was some 4 feet from the floor in a location where it was
possible for someone to come into contact with it, and the photograph,
Exhibit R-3, and the inspector's testimony confirms this fact. The
citation is affirmed.
Negligence
Respondent's testimony reflects that the machine in question had
been operating in an unguarded condition since 1961, it never occurred
to anyone that it should be guarded, and no MSHA inspector ever
suggested that it should be guarded. I conclude that the respondent
could not reasonably have known that a guard was required and was not
negligent in permitting the condition cited to exist.
Gravity
The inspector believed the condition cited to be nonserious and
I adopted his finding of nonserious as my finding in this regard.

1222

Good Faith Compliance
The condition was abated on the same day the citation issued,
and a day before the time fixed for abatement. Thus, the respondent
exercised good faith compliance by rapidly abating the condition.
Citation No. 105603, 30 CFR 56.12-8
Fact of Violation
In this case, the citation asserted that the electric wiring
entering the acid pump drive motor did not enter through proper
fittings.· Section 56.12-8 has three requirements, and the second one
relied on by the inspector requires that cables shall enter metal
frames of motors, only through proper fittings. However, the inspector' i testimony is that there is no cable involved in the condition
cited, and insofar as the cited wires are concerned, the standard
does not require that they enter motor frames through proper fittings
(Tr. 180-181). Here, there is no evidence that the hole in the motor
frame was not properly bushed, and the inspector confirmed that the
wires were adequately insulated. Under the circumstances, I find
that the petitioner has failed to establish a violation, and Citation
No. 105603 is vacated.
Citation No. 105604, 30 CFR 56.12-30
Fact of Violation
The evidence adduced by the petitioner supports the fact that
the junction box in question had separated from the dust collector
drive motor and was hanging dm-m from the motor. The inspector
admitted that the box had not been torn loose as stated in his citation, and he indicated that the separation resulted from vibration,
He considered the condition to be potentially dangerous and that is
why he cited section 56.12-30.
I find that the petitioner has established a violation of the
cited section. The fact that the inspector's citation states that
the.box had been torn loose, when in fact it had not, does not prejudice the respondent, nor does it affect the described condition. The
fact is that the junction box had separated from its usual location,
and in that condition could be considered as "torn loose," and respondent presented no evidence to the contrary. Further, the fact that
the equipment was energized when the inspector found the condition
cannot serve as a basis for vacating the citation simply because the
standard requires that the conditicn be corrected before equipment is
energized. In my view, that fact may bear on the gravity of the condition but may not serve as a defense to the citation. The citation
is affirmed.

1223

Negligence
The inspector testified that the junction box was located some
50 to 60 feet high in one of the ~ost remote areas of the mine. He
did not believe that the respondent had any prior knowledge that the
junction box had become dislodged. Under the circumstances, I find
that the respondent could not have reasonably known of the condition
and consequently was not negligent.
Gravity
The inspector was concerned with the fact. that the junction box
was dislodged and that if it were allowed to remain in that condition, i~ could wear down the insulation. If this happened and there
was a breakdown in the ground system, the storage tank area could
beco~e energized, thus exposing the men to a shock hazard. However,
he indicated that the outside conditions were dry and that the threat
of shock was diminished because lock-out procedures would be followed
if someone were working on the equipment.
Notwithstanding the lock-out procedures and the remote location
of the box, the loose junction box posed a potential shock hazard if
it were to remain undetected. Continued vibration would hnve probably
caused it to separate completely from the motor and this would have
posed a possible shock hazard. In these circumstances, I find the
violation was serious.
Good Faith Compliance
The condition was corrected immediately by the reattaching of
the junction box to the motor. I find that the respondent abated the
condition cited rapidly and in good faith.
Citation No. 103206, 30 CFR 56.12-32
Fact of Violation
I find that petitioner has established a violation concerning
the· missing junction box cover for the sending generator, and respondent conceded as much by Mr. Michner's testimony that there was no
justification for the missing cover and that an electrician apparently
neglected to replace it after performing some work on the wiring. The
citation is affirmed.
1

Negligence

Although the junction box was facing down toward the floor and
may not have been visible if the cover were kept in place, the fact
is that respondent conceded the wires were hanging out and were
visible. Coupled with the fact that an electrician had apparently

1224

performed some work on the box and neglected to replace the cover
plate; and the inspector's unrebutted testimony that men would readily
pass by the area, I ftnd that the respondent should have known about
the condition cited and failed to exercise reasonable care to prevent
the condition cited. In these circumstances, I conclude that respondent is guilty of ordinary negligence.
Good Faith Compliance
The condition was abated one-half hour before the time fixed by
the inspector, and I find that respondent exercised good faith compliance in this regard (Exh. P-8).
Gravity
The evidence established that the wires located in the uncovered
junction box were well-insulated and the inspector believed the condition, as he found it, and which served as the basis for his citation, was nonserious. Respondent's testimony confirmed that the wires
were well-insulated and were fastened with wire nuts.. Under the circumstances, I adopt the inspector's nonserious finding as my finding
for this citation.
Citation No. 103207, 30 CFR 56.12-32
Fact of Violation
I find that the petitioner has established that the junction box
cover for the pump house sump pump was not kept in place as charged
in the citation, and respondent presented no evidence to the contrary.
Failure to keep the junction box cover in place constitutes a violation of the cited standard, and respondent presented no evidence that
repairs or testing was taking place. The citation is affirmed.
Negligence
The inspector testified that the sump pump in question was
located in the back corner of the sump room in an out-of-the-way and
rem~te location, was not being used, and he could not determine how
long the cover plate had been missing. In addition, he did not indicate whether or not anyone passed through the area in question or
whether anyone normally would be in a position to observe the condition cited. In these circumstances, I cannot conclude that respondent
was negligent or that petitioner has established any negligence with
respect to this citation. Accordingly, my finding is that there was
no negligence with respect to the condition cited.
Gravity
The evidence establishes that the junction box wires were wellinsulated, that the sump pump was located in a remote area, and that

1225

it was not in use. The inspector believed the violation was nonserious, and I adopt this conclusion on his part as my finding in
this regard.
Good Fa_ith Compliance
The condition was abated on the same day the citation issued and
prior to the time fixed by the inspector.. I find that the respondent
exercised good faith compliance by taking iITJUe<liate corrective action
(Exh. P-9).
Size of Business and Effect of Penalties on Respondent's Ability to
Remain in Business
.The parties stipulated that the size of the respondent's mining
operation is medium-to-small, but that respondent is a subsidiary of
ITT (Tr, 9). Respondent presented no evidence that any civil penalties assessed by me in this proceeding will adversely affect its
ability to remain in business, and I conclude that they will not,
History of Prior Violations
The inspection in question was the initial inspection under the
1977 Act, and the parties stipulated that respondent has no prior
history of violations (Tr. 9).
ORDER
In view of the foregoing findings and conclusions, it is ORDERED
that the following citations be vacated and the petition for assessment of civil penalties, insofar as it seeks penalty assessments for
these citations, is DISMISSED:
Citation No.

Date

30 CFR Section

103201
103204
103205
105603

03/14/78
03/14/78
03/14/78
03/14/78

56.12-34
56.16-9
56.11-1
56.12-8

In view of the foregoing findings and conclusions affirming the
following citations, and taking into account the six statutory
criteria set for in section llO(i) of the Act, civil penalties are
assessed as follows:
Citation No.

Date

30 CFR Section

Assessment

103202
105601

03/14/78
03/14/78

56.12-8
56.14-1

$150
35

1226

10560.!i.
103206
103207

03/14/78
03/15/78
03/15/78

56.12-30
56.12-32
56.12-32

75
25
25

Respondent is ORDERED to pay civil penalties totaling $310 within
thirty (30) days of the date of this decision.

George.A. Koutras
Administrative Law Judge
Distribution:
Leo McGinn, Trial Attorney, Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22°203
Jeffrey J. Yost, Esq., Pennsylvania Glass Sand Corporation,
P.O. Box 187, Berkeley Spr.ings WV 25411 (Certified Mail)
Standard Distribution

1227

FEDERAL MINiE SAFETY AND HEALTH REVIEW COMMISSION
.

.

OFFICE OF ADMINISTRATIVE lAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

AUB 3 0

!879
Application for Review of
Discrimination Complaint

EUGENE GREY,
Applicant

v.
Docket No. HOPE 79-77
RIVERTON COAL COMPANY,
Respondent

Eagle No. l Mine

DECISION
This proceeding was brought by Eugene Grey, under section
105(c)(3) of the Federal Mine Safety and Health Act .of 1977, 30 U.S.C.
§ 801 ~~., for review of an alleged act of discrimination.
The case was heard at Charleston, West Virginia·, on April 13,
1979. Counsel for the parties have submitted their proposed findings
and 'onclusions and supporting briefs following receipt of the
transcript.
Having considered the evidence and contentions of the parties,
I find that the preponderance of the reliable, probative, and sub. stantial evidence establishes the following:
FINDINGS OF FACT
1. Applicant was employed by Respondent as a coal mine section
foreman from about October 1, 1976, to April 7, 1978. Applicant
worked at Respondent's No. 35 Mine until his transfer to the Eagle
No. 1 Mine in November, 1977.

2. Respondent was, at all pertinent times, the operator of the
No. 35 and Eagle No. 1 Mines in Fayette County, West Virginia.

3. Applicant was hired as a section foreman by William Sublett
on October 1, 1976, at the No. 35 Mine. At that time, Mr. Sublett
was mi.ne superintendent for the No. 35 Mine. Applicant continued as
a section foreman at the No. 35 Mine until early November 1977, when
he was transferred to Riverton's Eagle No. 1 Mine. The transfer was
made because of a reduction in the work force due to Respondent's
decision to close the No. 35 Mine.

1228

4. Mr. Sublett and Bob Samuels, then the general mine foreman
for the Eagle Nos. 1 and 2 Mines, chose Applicant for the transfer
over two other section foreman from the No. 35 Mine because he had
more mining experience, they found him better qualified as a foreman,
and he had more time with the company than the other men. The use
of seniority in determining job reassignment was the normat practice
at Riverton.

5. Applicant worked in the new section foreman position, on the
day shift, at the Eagle No. 1 Mine until Friday, April 7, 1978. At
the end of his shift on that date, Applicant entered the office
trailer and met Mr. Samuels, who had recently been promoted to mine
superintendent for the Eagle Nos. 1 and 2 Mines. Mr. Samuels informed
Applicant that he wanted him to start working on the evening shift the
following Monday, April 10, 1978, until management could open a new
section. Applicant refused this assignment, and said that he would
quit before working on the evening shift. Applicant had never
expressed any resistance to working on the night shift before this
time.
6. Mr. Samuels determined that the transfer of a day shift
.oreman to the evening shift was necessary because the general mine
foreman on the evening shift, who had more seniority than any of the
section foremen on the day shift, was transferring to the day shift.
Mr. Samuels chose to transfer Applicant to the evening shift because
he had the least seniority of the day shift section foremen at the
Eagle Mine. It was Mr. Samuels' normal practice to base this type of
transfer on seniority, as was the case when Applicant had transferred
to the Eagle No. 1 Mine in November, 1977, over men junior to him in
seniority.
7. When Applicant told Mr. Samuels tha·t he would quit before
going on the evening shift, Mr. Samuels reminded Applicant that a
new section was being prepared and promised Applicant that he would
be brought back to the day shift as soon as the new section was ready
to begin production. Applicant refused to consider a transfer to the
evening shift and as he left the office he stated "I quit." He then
went to see Mr. Sublett, who at that time was general manager of
Riverton Coal Company and was over Mr. Samuels.
8. Before Applicant arrived at Mr. Sublett's office, Mr. Samuels
called Mr. Sublett and told him that Applicant had quit and that they
would need a section foreman to replace him. Mr. Sublett responded
that he would begin searching for a replacement.
9. Applicant arrived at Mr. Sublett's office shortly after
Mr. Samuel's telephone conversation with Mr. Samuels. Applicant went
to Mr. Sublett's office to try to convince him to allow Applicant to
remain on the day shift or if that was not possible, to promote him
to the general mine foreman's position on the evening shift.

1229

Mr. Sublett rejected these suggestions, as another man had been
hired to be the general mine foreman on the night shift. He also
stated to Applicant that he did not think that Applicant was qualified to be the general mine foreman because "he did not have the company's interest at heart." At that point in their conversation,
Mr. Sublett's telephone rang and he motioned for Applicant to leave
the office in order to conduct his conversation in private. He did
not intend this as a signal that Applicant could not come right back
to resume their discussion. Applicant left the mine site before
Mr. Sublett got off the telephone. Applicant did not return for work
on Monday and did not indicate at any time to either Mr. Samuels or
to Mr. Sublett that he would accept a transfer from the day shift to
the night shift as a section foreman. He never returned to talk to
Mr. Samuels or Mr. Sublett.
~O.
Mr. Sublett testified that although Applicant was a good
section foreman, he had not displayed a willingness to put in the
extra time that would be required of a general mine foreman, and that
he had found that Applicant tended to arrive at work at the last
minute and would leave immediately at the end of his.shift.

11. On July 18, 1978, Applicant filed a discrimination complair·t. In that complaint, he alleged that the termination of his
employment with Respondent was due to three previous complaints he
had made concerning mine safety. MSHA investigated the complaint and
informed Applicant by letter dated September 25, 1978, of its determination that he had not been discriminated against in violation of
section 105(c) of the Act. Although this initial compliant was filed
after the 60 day period provided in the Act, MSHA did assert jurisdiction. On October 19, 1978, Applicant filed a complaint with the
Commission alleging that he had been discharged on April 7, 1978, for
making three safety complaints during the course of his employment
with Riverton. This complaint was filed within the time prescribed
in the Act for filing a complaint after the Secretary's decision, and
is basically the same as the one filed with MSHA.
12. The first safety complaint alleged by Applicant occurred in
early 1977. It concerned water accumulations in the No. 35 Mine and
the· alleged failure of Respondent to provide an up-to-date mine map.
Many of the miners in the No. 35 Mine had been concerned that the
accumulations of water were coming from the abandoned Hickory Camp
Mine that was adjacent to the No. 35 Mine. The situ~tion had first
been brought to Mr. Sublett's attention in 1974. At that time,
Mr. Sublett hired a surveying company to determine the location of
the abandoned mine and plot its location on Riverton's map of the
No. 35 Mine. The survey showed that active mining in the No. 35
Mine was more than 2,000 feet away from the old works, this report
was announced to the miners, and concern among the miners about water
accumulations diminished. Mining in that section ceased, and ~ras- later
resumed· in Decemrrer· 1975.

1230

13. After mining resumed in that section, water again began to
accumulate. Almost every employee voiced concern to Mr. Sublett
about the water. As mining continued, concern about the water accumulations and the accuracy of the survey grew. In early 1977, Applicant
expressed his concern to a Federal mine inspector regarding the
faintness of the drawing of the Hickory Camp Mine on Riverton's
No. 35 Mine map. The inspector asked Mr. Sublett to prepare a new
edition of the map that would show more clearly the location of the
abandoned works. Mr. Sublett immediately complied with this request
and no citations were issued by MSHA on the basis on Applicant's
complaint.
14. The employees remained concerned about the accumulations of
water and Mr. Sublett authorized the drilling bf bore holes in the
direction of the abandoned works in May 1977. These test bore holes
were not required by MSHA because the map showed that mining was
about· 1,400 feet from the old works and section 317(b) of the Act
required drilling bore holes only if the active workings were within
200 feet of abandoned areas. Once the drilling was begun, all comment
concerning the water ceased.
15. rhe second incident alleged by Applicant as the basis for
uis discrimination complaint occurred on August 4, 1977, when the
No. 35 Mine was not operating due to a strike. Applicant and another
employee, Mr. John Westfall, were instructed to conduct a preshift
examination and t9 bring a roof bolter to the mouth of the mine.
After making the preshift examination, Applicant attempted to call
the portal and report that the mine was clear, but no one answered
his call. In the meantime, Mr. Sublett and general mine foreman
John Bickford had entered the mine and proceeded to a portal on the
other side of the mountain.
16. On their return through the mine, they met Applicant and
Mr. Westfall and told them that two State mine inspec~ors were at the
portal issuing notices of violation to the men for entering the mine
without filling out the fireboss book.
Applicant complained to the
State inspector that there was no one on the surface to answer his
call.
17. No one was cited for this alleged violation involving the
communications section of the Act (Applicant's complaint). The State
inspectors cited the men for entering the mine without completing
the fireboss book. These notices of violation were ·subsequently
withdrawn by the West Virginia Department of Mines.
18. The third incident relied on by Applicant in his complaint
occurred at the Eagle No. 1 Mine in late November or early December
of 1977. On this occasion, Mine Superintendent Samuels and a Federal
mine inspector were in Applicant's section. The inspector remarked
that loose coal needed to be cleared away from the ribs and

1231

Mr. Samuels instructed the Applicant to get the scoop and clean the
area. When the inspector and Mr. Samuels returned, they found that
Applicant had instructed his men to clean the ribs with shovels rather
than with the scoop.
19. Mr. Samuels asked Applicant why he had not gotten the scoop.
Applicant replied that he felt that the scoop was dangerous because
it lacked a canopy. Mr. Samuels stated that the use of the scoop was
less dangerous because the operator would be about 8 feet from the
rib when he was using a scoop, while miners using a shovel to clean
the coal around the rib would be directly under the rib.
20. The inspector agreed with Mr. Samuels' assessment and
Applicant finally agreed to use the scoop. The operator had not been
requi"red to install a canopy on this scoop by MSHA because it was used
outby the last open break. The scoop was used daily on every shift.
Applicant made no further mention of this incident and Mr. Sublett
was not informed that it had occurred.
21. ~he first two incidents occurred at the No. 35 Mine prior
to Anplicant's transfer to the Eagle No. 1 Mine. Applicant admitted
that these incidents were "water under the bridge" at the time of his
transfer in November 1977. The third incident occurred shortly after
his transfer. There was no proof that Mr. Samuels' decision to
transfer Applicant to the evening shift as a section foreman was
related in any way to these three incidents. I find the decision to
transfer Applicant was based on the fact that he had the least seniority of the day shift section foreman. This was the normal practice
for job reassignment of foreman at Respondent's mines.
22. The preponderance of the evidence ·shows that Applicant
refused to accept the decision by the mine superintendent to transfer
to the evening shift and informed him that he would quit rather than
accept the transfer, and he did quit. He then went to Mr. Sublett to
see if he could get a promotion to general mine foreman or to be
allowed to remain on the day shift.
23. Mr. Sublett would not agree to overrule Mr. Samuels' decision and Applicant gave no indication that he was willing to work on
the night shift as a section foreman.
24. I find that Applicant's charge that he was discharged
because of prior safety complaints is without merit. There was no
evidence in the record to show any relationship between the three
above-mentioned incidents allegedly involving Applicant's safety
complaints and either the decision by management to transfer him to
the night shift or management's decision to accept his resignation
when he refused to accept the transfer.

1232

DISCUSSION
Section 105(c)(l) of the Act protects miners from discrimination
in retaliation of their exercise of safety complaint rights. Applicant has failed to show that he was discriminated against in any
manner. Respondent's decision to transfer him to the night shift was
based upon an established, non-discriminatory seniority practice.
Applicant gave his employer an ultimatum that either he be allowed to
stay on the day shift or he would quit. The e~ployer accepted the
resignation.
There is no evidence that either Respondent's decision to transfer Respondent or its decision to accept this resignation was in any
way related to his prior safety and health complaints. The evidence
instead supports the finding that the transfer was based on Applicant's mine seniority, as was his earlier transfer to the Eagle
No. 1 Mine over other section foremen at the No. 35 Mine who were
laid off when production was curtailed.
CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdiction over the parties and
the subject matter of the above proceeding.
2. Respondent's Eagle No. 1 Mine and No. 35 Mine, at all pertinent times, were subject to the provisions of the Act.
3. Applicant has failed to meet his burden of proving that
Respondent violated the Act as alleged.
4.

The application for review should therefore be DENIED.

All proposed findings and concluslons inconsistent with the above
are hereby rejected.
ORDER
WHEREFORE IT IS ORDERED that the application for review is DENIED
and the proceeding is DISMISSED.

u~~vvi/

WILLIAM FAUVER, JUDGE

1233

Distribution:
Janet Marie Frye, Esq., P.O. Box 439, Oak Hill, WV 25901
(Certified Mail)
C. Lynch Christian III, Esq., Jackson, Kelly, Holt, & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
Assistant Solicitor, Mine Safety and Health Administration, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

1234

FEDIEt'lAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

.

Civil Penalty Proceeding
Docket No. VINC 78-395-P
A/O No. ll-00599-02026V

v.
Orient No. 6 Mine
FREEMAN UNITED COAL MINING
COMPANY,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., and Sidney Salkin, Esq., Office
of the Solicitor, U.S. Department of Labor, for
Petitioner;
Harry M. Coven, Esq., Gould & Ratner, Chicago,
Illinois, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On June 7, 1978, a petition was filed by the Mine Safety and
Health Administration (MSHA), for the assessment of civil penalties
against Freeman United Coal Mining Company for alleged violations of
30 CFR 75.301-4 and 30 CFR 75.400. This petition was filed pursuant
to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a) (1977 Min-.: Act). ·An answer to the petition was
filed on June 19, 1978.
On June 27, 1978, l1SHA filed a motion for production of documents, and the motion was granted by an order dated July 19, 1978.

Notice of hearing was given on July 14, 1978. "The hearing was
held between September 26 and September 29, 1978, in Chicago,
Illinois. Representatives of both parties were present and
participated.
At the hearing on September 26, .1978, stipulations were entered
into as to both the history of violations and the annual tonnage
produced at the Orient No. 6 Mine and the annual tonnage produced
by the Freeman United Coal Mining Company.

1235

When the hearing opened on September 26, 1978, settlement proposals were submitted in the following cases involving the same
parties: Docket Nos. VINC 78-392-P, 78-393-P, 78-394-P, 78-396-P,
78-397-P. Settlement proposals were not submitted in either VINC
78-49-P or the present case. It was proposed that the record be
consolidated as to all cases, but che Respondent preferred to maintain separate transcripts of the proceedings in Docket Nos. VINC
78-49-P and the present case. The record of the September 26, 1978,
settlement negotiations was consolidated with the separate records
of the remaining companion cases.
The hearing on the alleged violations in the present case was
held between September 27 and September 29, 1978. A schedule for the
submission of post-hearing briefs was agreed upon at the conclusion
of tne hearing, but a delay in the receipt of transcripts and other
problems experienced by counsel forced a revision of the briefing
schedules. Freeman filed its posthearing brief on March 21, 1979.
MSHA filed no post hearing brief. No reply briefs were filed.
II.

Violations Charged

Order No.

Date

30 CFR Standard

1 KLW

01/26/77
01/03/77
01/19/77
01/12/77

75.301-4
75.301-4
75.301-4
75.400

1 LDC
1 LDC
1 LDC
III.

Evidence Contained in the Record
A.

Stipulations

Stipulations were entered into by the parties on September 26,
1978, and are set forth in the findings of fact, infra.
B.

Witnesses

MSHA called as its witnesses Kirby L. Webb and Lonnie D. Conner,
MSHA inspectors.
Freeman called as its witnesses Peter Helmer, the mine superintendent at the Orient No. 6 Mine; Loren Boner, a foreman at the
Orient No. 6 Mine; Wesley Helm, an underground supervisor at the
Orient No. 6 Mine on th.e date of the hearing, and a face boss at the
Orient No. 6 Mine on January 3, 1977; Ray E. Williams, a foreman at
the Orient No. 6 Mine; and Paul Budzak, Freeman's safety director.
C.

Exhibits

1.

MSHA introduced the following exhibits into evidence:

1236

(a) M-1 is a copy of Order No. 1 LDC, January 12,
1977, 30 CFR 75.400.
(b)

M-2 is a termination of M-1.

(c) M-3 is a copy of Order No. 1 KLW, January 26,
1977, 30 CFR 75.301-4.
(d)

M-4 is a termination of M-3.

(e) M-5 is a copy of Order No. 1 LDC,. January 3,
1977, 30 CFR 75.301-4.
(f)

M-6 is a termination of M-5.

(g) M-7 is a copy of Order No. 1 LDC, January 19,
1977, 30 CFR 75.301-4.
(h)
2.

M-8 is a termination of M-7.

Freeman introduced the following exhibits into evidence:
(a)

0-1 is a diagram of a Lee Norse miner.

(b) 0-2 contains calculations made by Inspector
Webb representing the method used by him to compute mean
air velocity.
(c)

0-3 is a drawing.

(d) 0-4 is a copy of a production sheet for
January 3, 1977.
(e) 0-5 contains background information pertaining
to Paul M. Budzak.
(f) 0-6 is a copy of a preshift examiner's report
dated January 12, 1977.
(g) 0-7 is a copy of a preshift examiner's report
dated January 11, 1977 (afternoon shift).
(h) 0-8 is a copy of another preshift examiner's
report dated January 11, 1977 (day shift).
3. Exhibit 1 is a diagram pertaining to an air velocity measurement experiment described by Paul M. Budzak during the course of his
testimony.

1237

4. Exhibit 3 is a computer printout listing the history of paid
penalty assessments at the Orient No. 6 Mine. (This exhibit was
received into evidence during the September 26, 1978, settlement·
proceedings, and is filed in Docket No. VINC 78-49-P).
IV.

Issues

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount
should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should be
assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of
the penalty to the size of the operator's business; (3) whether the
operator was negligent; (4) effect of the penalty on the operator's
ability to continue in business; (5) gravity of the violation; and
(6) the operator's good faith in attempting rapid abatement of the
violation.
V.

Opinion and Findings of Fact
A.

Stipulations

During the settlement proceedings on September 26, 1978, the
parties ente~ed into the following stipulations:
(1) The Orient No. 6 Mine produces approximately 1,159,797 tons
of coal per year (Tr. 5, 11-September 26, 1978).
(2) The Freeman United Coal Mining Company produces approximately 6,221,752 tons of coal per year (Tr. 5, 11-September 26, 1978).
B.

Order No. 1 KLW, January 26, 1977, 30 CFR 75.301-4;
Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4;
Order No. 1 LDC, January 19' 1977, 30 CFR 75.301-4

(1)

General Findin~s

Between January 3, 1977 and January 26, 1977, MSHA inspectors
Kirby L. Webb and Lonnie D. Conner issued the three subject orders of.
withdrawal for three separate violations of 30 CFR 75.301-4. Mr. Paul
Budzak, the Respondent's safety director, appeared as an expert witness on the subject of air velocity measurement. His testimony refers
to all three air violations. The Respondent's post-hearing brief presents questions of law and fact coIIL.~on to all three violations. To
prevent undue repetition in the portions of this decision which
separately address each order of withdrawal, the common questions of
law and fact will be addressed herein.

1238

30 CFR 75.301-4, the applicable mandatory safety standard,
states:
Velocity of air; minimum requirements. (a) On and
after March 30, 1971, except in working places using a
blowing system as the primary means of face ventilation
or in working places where a lower mean entry air velocity has been determined to be adequate to render harmless
and carry away methane and to reduce the level of respirable dust to the lowest attainable level by the Coal Mine
Safety District Manger, the minimum mean entry air velocity shall be 60 feet a minute in (1) all working places
where coal is being cut, mined, or loaded from the working
face with mechanical mining equipment,. and ( 2) in any
other working place designated by the Coal Mine Safety
District Manager for the district in which the mine is
located in which excessive amounts of respirable dust are
being generated by any type of mechanical mining equipment.
(b)(l) Except as provided in subparagraph (2) of
this paragraph, and except in working places where combination face ventilation systems are employed, the mean
entry air velocity of air passing through any room, entry,
crosscut, pillar cut, or other working place shall be
established as follows:
(i) The quantity of air, when measured at
the inby end of the line brattice or other
approved device, shall be determined;
(ii) The cross sectior1al area of the room,
entry, crosscut, pillar cut, or other working
place, when measured at or near the inby end of
the line brattice system or other approved
device, less the cross sectional area of the
line brattice system or other approved device,
shall be determined;
(iii) The air quantity measured in subdivision (i) of this subparagraph shall then be
divided by the.remaining cross sectional area
as determined in subdivision (ii) of this
subparagraph and the resulting quotient shall
constitute the mean entry air velocity; thus:
[ i/ii]=V.
(2) When longwall mining is used the mean entry air
velocity at the longwall face shall be determined by
establishing the total intake air quantity delivered to

1239

the longwall face and dividing this quantity by the cross
sectional area of the longwall place at the entrance to
the longwall face.
(c) The determination of mean entry air velocity may
be made either immediately before mining equipment enters a
working place or during its presence in such working place
and the person making such determination shall use an
anemometer or other device approved by the Secretary.
The method of face ventilation employed at the Orient No. 6 Mine
consists of 16 inch diameter exhaust tubing installed to within
10 feet of the working face. The tubes are hung from the left side
of the roof. They are connected to an exhaust fan which pulls air
through the tubing (Tr. 47, 128-29, 170).
30 CFR·75.301-4(b)(l) sets forth the prescribed formula to be
used in establishing the mean velocity of air passing through the
working place, except where combination face ventilation systems are
employed. Combination face ventilation systems were not employed in
the subject areas of the Orient No. 6 Mine at the time the thre~
orders were issued. 30 CFR 75.301-4(b)(l)(i) requires a measurement
to be taken at the inby end of the line brattice or other approved
device to determine air quantity. 30 CFR 75.301-4(b)(i)(ii) requires
the cross sectional area of the working place to be determined by
taking measurements at or near the inby end of the line brattice
system or other approved device, and deducting therefrom the cross
sectional area of the line brattice system or other approved device.
Under the formula in 30 CFR 75.301-4(b)(l)(iii) mean air velocity is
compted by dividing the figure obtained under 30 CFR 75.301-4(b)(l)(i)
by the figure obtained under 30 CFR 75.301-4(b)(l)(ii).
The Respondent argues that the inspectors failed to take measurements of the cross sectional area at or near the inby end of the
exhaust tubing. (Respondent's Post-Hearing Brief, pp. 23-24, 28).
According to the Respondent, the inspectors testified that in each
instance the cross sectional measurements were taken behind the mining machine located in the working place at the time. The mining
machines used at the Orient No. 6 Mine are 33 feet long (Tr. 115).
In each instance, the end of the exhaust tubing was within 10 feet of
the face. The Respondent thereupon argues that in each instance the
inspector could not have been closer than 20 feet from the inby end
of the exhaust tubing when he measured the cross sectional area of
the room. "It is apparent," argues the Respondent, "that 20 feet
outby the inby end of the exhaust tubing is not the location designated by section 75.301-4(b)(l)(ii) to take the measurement for cross
sectional area of the room." (Respondent's Post-Hearing Brief,
pp. 23-24). I disagree with the premise that such a measurement point
could not be construed to comply with the regulations.

1240

The Interior Board of Mine Operations Appeals (Board) was faced
with an analogous set of facts in Zeigler Coal Company, 3 IBMA 78,
81 I.D. 173, 1973-1974 OSHD par. 17,615 (1974). The Board was confronted with an alleged violation of 30 CFR 75.301-3, with the Respondent contending that the required measurements were taken in the wrong
location in the mine. The pertinent language of 30 CFR 75.301-3(a)
and (b) interpreted by the Board was similar to the pertinent language
of 30 CFR 75.301-4(b)(l)(ii) in that it specified only a general location for taking the measurement. The Board concluded that the government could adopt its own interpretation.as to the location at which
to make the air volume measurement. The Board also noted that no
rebutting evidence was present to indicate that' moving the point of
measurement made any difference in the readings obtained.
Mr. Budzak was present in the hearing room when the inspectors
testified as to the method they employed to compute the air velocity
(Tr. 202-03). He testified that, in his opinion, the method used by
the inspectors was inadequate to the extent that they were not taking
into consideration with any degrees of consistency, the areas that
should have been deducted in computing the cross sectional area of
the working place (Tr. 205-06, 222). He did not indicate either that
the measurements were taken too far from the inby end of the tube or
that the location at which the measurements were taken affected the
accuracy of the results.
Accordingly, it is found that the inspectors took the measurements employed in computing the cross sectional area of the working
place at or near the inby end of the approved device within the
meaning of 30 CFR 75.301-4(b)(ii).
The Respondent's second position asserts that the cross sectional area of the exhaust tube must be deducted in computing the
cross sectional area of the working place. (Respondent's Post
Hearing Brief, p. 24). I agree. 30 CFR 75.301-4(b)(l)(ii) specifically states that the cross sectional area of the line brattice system
or other approved device shall be deducted in computing the cross
sectional area of the working place. According to Mr. Budzak, the
16 inch exhaust tubing has a cross sectional area of 1.39 square feet
(Tr. 208, 235).
The Respondent's third position asserts that the cross sectional
area of the mining machine located in the working place should have
been deducted in computing the cross sectional area of the working
place. (Respondent's Post Hearing Brief, pp. 24-25). Mr. Budzak
testified that such an adjustment would increase the mean air velocity
reading (Tr. 205), and indicated that the failure to make the adjustment resulted in an incorrect mean air velocity computation (Tr. 206).
I disagree with the Respondent's position. The regulation
clearly states that the mean air velocity can be determined either

1241

with or without mining equipment in the working place. 30 CFR
75.301-4(c). It is equally clear that only the cross sectional area
of the approved ventilation device can be deducted in computing the
cross sectional area of the working place. 30 CFR 75.301-4(b)(l)(ii).
The core of Mr. Budzak's disagreement with the measurement procedure used by the inspectors is not that the inspectors failed to
follow the regulations by not deducting the cross sectional area of
the mining machine. Rather, he disagrees with the formula set forth
in the regulations (Tr. 237-38). In effect, the Respondent is
requesting the Judge to invalidate the regulat.ion by adopting
Mr. Budzak's computation scheme.
Without considering the question as to the power of the
Commission to pass upon the validity of such a regulation, it appears
that there is no basis for holding that one part of the regulation,
relating to the alternative procedures for taking measurements, should
be held void since it is part of the overall regulation which sets the
minimum velocity requirement. There is no claim that the overall
regulation as to velocity is void. Apparently the drafters of the
regulation had in mind a need for a maintenance of a minimum velocity
of air whether the machinery was in or out of the working place at a
given moment during the mining cycle (Tr. 149).
Accordingly, it is found that the inspectors were correct in not
deducting the cross sectional area of the mining machine in computing
the cross-sectional area of the working place.
The Respondent's fourth argument asserts that the Petitioner
failed to establish that the pitot tube and magnehelic gauge are.
approved air measurement devices within the meaning of 30 CFR
75.301-4(c). (Respondent's Post Hearing Brief, p. 25). I disagree.
Both Exhibits M-5 and M-7 indicate that the magnehelic gauge and
pitot tube are approved air measurement devices. During the course
of direct examination respecting Order· No. 1 LDC, January 19, 1977,
Inspector Conner indicated that the devices are approved (Tr. 171).
Additionally, both inspectors had been instructed by the government
as to the correct means of using the tube prior to the issuance of
the orders (Tr. 53, 63, 133). The pitot tube and magnehelic gauge,
on the one hand, and the anemometer, on the other, are alternative
methods for determining air velocity at the face (Tr. 50). In fact,
Inspector Webb testified that the pitot tube and the magnehelic gauge
are more accurate than an anemometer (Tr. 51).
Accordingly, it is found that with this evidence the Petitioner
has established at least a prima facie showing that the pitot tube
used in conjunction with the magnehelic gauge is a device approved by
the·Secretary. In view of that evidence it would be up to the
Respondent to prove otherwise if it were possible.

1242

The Respondent's fifth position asserts that, by failing to
introduce into evidence the conversion chart used by the inspectors
in interpreting the readings from the pitot tube and magnehelic gauge,
the Petitioner has failed to meet its burden of proof by omitting an
essential evidentiary link. (Respondent's Post-Hearing Brief, p. 25).
I disagree.
Zeigler Coal Company, 3 IBMA 78, 81 I.D. 173, 1973-1974 OSHD
par. 17,615 (1974), was similar to the present case in that it
addressed the government's burden of proof with respect to air violations. In Zeigler, the Board indicated that a notice of violation is
sufficient to prove an air vPlocity violation in the absence of
rebutting evidence tending to negate the grounds for the notice's
issuance. In Zeigler, the Board noted that there was no indication
that the notices were deficient.
In Eastern Associated Coal Corporation, 7 IBMA 14; 83 I.D. 425,
1976-1977 OSHD par. 21,195 (1976), aff'd on reconsideration en bane
7 IBMA 133, 83 I.D. 695, 1976-1977 OSHD par. 21,373 (1976), an operator challenged a sampling system employed by MSHA's predecessor, the
Mining Enforcement and Safety Administration (MESA), in computing
the average concentrations of alleged respirable dust in the mine
atmosphere.
Eastern was a civil penalty proceeding involving 22 notices of
violation issued under section 104(i) of the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 814(i) (1970), for alleged noncompliance with the Secretary of the Interior's respirable dust standards. The Board, citing Castle Valley Mining Company, 3 IBMA 10,
81 I.D. 34, 1973-1974 OSHD par. 17,233 (1974), observed that MESA had
established its prima facie case by authenticating the subject notices
and introducing them into evidence.
In this decision the Board indicated that an operator can challenge a sampling system used by the government agency charged with
securing compliance with the mandatory standards by establishing that
the sampling system does not conform with the requirements of the
statute or the regulations promulgated thereunder. After addressing
the various arguments raised by the parties on appeal, the Board
summarized the record as follows:

* * * (1) by placing the subject notices in evidence,
MSHA established a prima facie case for its charges that
Eastern had exceeded the applicable limit on average
concentrations of "respirable dust;" (2) Eastern established by a preponderance of the evidence an affirmative
defense--to wit, that each of the subject notices was
based upon alleged concentrations of "respirable dust"
that in fact included particulates of dust which are not
"respirable" as a matter of law under section 318(k) of

1243

the Act and 30 CFR 70.2(i); and (3) MESA's sole rebuttal,
namely, that the provisions of section 318(k) were
properly ignored as a matter of law, is without merit.
7 IBMA at 46.
The three subject orders of withdrawal (Exhe. M-3, M-5, M-7) were
properly identified and authenticated by the issuing inspectors (Tr.
45, 127, 168), and admitted into evidence without objection (Tr. 123,
156, 168-69). Each order of withdrawal sets forth the mean air velocity as computed by each inspector. By properl~ placing these orders
into evidence, the Petitioner established a prima facie case for the
respective violations of 30 CFR 75.301-4. Therefore, it was unnecessary for the Petitioner to introduce the conversion charts into evidence in order to sustain its burden of proof. The burden was thereupon placed on the Respondent to produce evidence tending to establish
either that the inspectors failed to adhere to established procedures
in interpreting the readings acquired through the use of the pitot
tube and the magnehelic gauge or that the use of the tube and gauge
or the use of the chart violated the statute or the regulations.
Although the record indicates that Inspector Conner failed to properly
determine the cross sectional area of the working place by failing to
deduct the cross sectional area of the exhaust ~ubing, there is no
indication that either Inspector Webb or Inspector Conner incorrectly
used the chart in interpreting the readin8s taken with the pitot tube
and magnehelic gauge. Additionally, no probative evidence was introd~ced to establish that the use of the tube and gauge or the use of
the chart was not authorized by the statute or the regulations.
The sole evidence adduced by the Respondent with respect to the
chart was through Mr. Budzak's testimony. According to Mr. Budzak,
experts in the field of air velocity measurement agree that in order
to obtain an air quantity reading, through the use of a pitot tube in
an air duct, that is 100 percent accurate, 20 readings must be taken
and averaged (Tr. 220-21, 229-35, Exh. 1). The method employed by
the inspectors was to take one reading from the center of the exhaust
tube (Tr. 67, 101, 235). According to Mr. Budzak, the federal authorities use an 85 percent correction factor to equate this one reading
back to a result that is 100 percent accurate (Tr. 235-36). The
85 percent correction factor is reflected in the conversion chart used
by the inspectors (Tr. 236). Mr. Budzak then indicated that laboratory testing indicates that a correction factor of approximately
90 percent is needed to equate one reading back to a result that is
100 percent accurate (Tr. 220-21, 224, 236).
However, he stated under cross-examination that it would be
correct to say that the foremen testified that the method they used
to reach their air velocity figures was essentially the same as the
method used by the inspectors (Tr. 223). In fact, he testified that

1244

he would not be the least bit surprised by the fact that Inspector
Conner's 44 feet per minute calculation was approximately the same as
the 45 or 47 feet per minute calculation computed by the section
foreman approximately 5 minutes earlier (Tr. 225). He further stated
that he was satisfied with the manner in which his section foremen
were taking the readings. The only point he was attempting to make
was that the .85 co.rrection factor is disputed by the authorities in
the Bureau of Mines who are contending that a .90 correction factor
should be used (Tr. 224).
This testimony tends to establish that a dispute exists amongst
the authorities in the field of air velocity measurement as to whether
the .85 correction factor embodied in the chart is appropriate, but
it does not tend to establish that the inspector's used the chart
incorrectly. Additionally, the Respondent introduced no calculations
using the 90 percent correction factor to establish that its use would
materially affect the air velocity measurements.
An additional factor common to all 3 orders of withdrawal is
the mathematical formula used to compute mean air velocity. This
procedure is set forth as follows:
Step 1:
Cross sectional area of the working place when
measured at or near the inby end of the approved
ventilation device minus the cross sectional area of
the approved ventilation device equals the adjusted
cross sectional area of the working place.
Step 2:
The reading taken from the magnehelic gauge is
applied to the conversion chart to obtain the
corresponding CFM reading for 16 inch tubing.
Step 3:
Divide the CFM reading by the adjusted cross
sectional area of the working place to determine the
mean air velocity in feet per minute.
(Exh. 0-2, Tr. 52, 55, 87-89, 105-06, 215-16).
2.

Order No. 1 KLW, January 26, 1977, 30 CFR 75.301-4
(a)

Occurrence of Violation

MSHA inspector Kirby L. Webb visited the Respondent's Orient
No. 6 Mine on January 26, 1977 (Tr. 45). At approximately 10:30 a.m.,

1245

he traveled to the 2nd northwest working section and proceeded to the
working face of the No. 5 room (Tr. 46). Coal was being cut at the
time (Tr. 46, 64). He thereupon took measurements in the 16 inch
exhaust tubing used for face ventilation to determine the mean air
velocity (Tr. 47, 50, 52, 55).
He used a small drill bit to bore a small hole into the second
or third tube outby the working face (Tr. 50, 66). The tubing comes
in 10 foot sections (Tr. 48). He inserted the L shaped pitot tube
into the opening, and positioned the hole in the end of the pitot
tube toward the air flow (Tr. 51-52). He thereupon checked the reading on the·magneheli~ gauge, which recorded .5. inches of water (Tr.
52). The magnehelic gauge was attached to the pitot tube by means of
two hoses (Tr. 51). The gauge registers air pressure in inches of
water which is then converted to CFM by means of a conversion chart
(Tr. ·51-52). He then consulted the conversion chart for 16 inch tubing and .5 inches of water and got a reading of 3,357 CFM (Tr. 52,
104). The entry was measured with a steel tape (Tr. 75), and measured
approximately 7-1/2 by 14-1/2 feet (Tr. 77). The inspector testified
that the cross sectional area of the working place was approximately
107 or 108· square feet after deducting 2 or 3 square feet for the
cros£ sectional area of the exhaust tubing (Tr. 52, 55, 105-06). He
thereupon calculated the mean air velocity as 33 feet per minute,
(Tr. 55, 96, 97, Exh. M-3). He thereupon issued the subject order of
withdrawal (Exh. M-3) citing the Respondent for a violation of the
mandatory safety standard embodied in 30 CFR 75.301-4 which requires
a minimum mean air velocity of 60 feet per minute in all working
places where coal is being cut, mined or loaded from the working face
with mechanical mining equipment.
A recomputation, using the precise adjusted cross sectional area
of the working place, reveals the following: The working place measured 14-1/2 feet by 7-1/2 feet, yielding a cross sectional area of
108.75 square feet. The 16 inch exhaust tubing has a cross sectional
area of 1.39 square feet (Tr, 208, 235). Therefore, the adjusted
cross sectional area of the working place was 107.36 square feet.
(108.75 square feet minus 1.39 square feet equals 107.36 square feet).
3357 CFM divided by 107.36 square feet yields a mean air velocity of
approximately 31.27 feet per minute.

Mr. Loren Boner, a foreman employed by the Respondent, testified
that the mining machine in the No. 5 room was broken when he arrived
on the section at approximately 8:35 a.m. (Tr. 113, 116). The machine
was repaired and returned to service shortly before the order was
issued (Tr. 116). Although the miner could not have been operating
for more than five minutes prior to the order's issuance (Tr. 117),
Mr. Boner confirmed that the miner had cut coal during the 5 minute
time period (Tr. 119). The machine was returned to service before
Mr. Boner conducted air velocity tests (Tr. 117, 119).

1246

Accordingly, it is found that a violation of 30 CFR 75.301-4 has
been established by a preponderance of the evidence in that the mean
air velocity was 31.27 feet per minute in a working place where coal
was being cut, mined or loaded from the working face with mechanical
mining equipment.
(b)

Gravity of the Violation

The purpose of adequate face ventilation is to render harmless
and remove methane, respirable dust, and other contaminants (Tr. 57).
The explosive range of methane is 5 to 15'percent (Tr. 210).
The inspector recorded two-tenths of one percent methane in the subject area (Tr. 56), and opined that he did not consider the reading
as indicating a hazardous methane level (Tr. 80). However, both
Inspector Webb and Mr. Budzak agreed that it is impossible to predict
the level of methane liberation in the face area when coal is being
extracted with a continuous miner (Tr. 55-56, J27). The largest
quantities of methane are released from a face when coal is being
extracted (Tr. 98). The section does not have a history of sudden
methane releases (Tr. 114).
According to Inspector Webb, the miners were taking approximately
6 inches of rock from the top with the continuous miner (Tr. 56),
conduct which can cause a frictional ignition at the face (Tr. 56-57).
Although the inspector stated that an ignition at the face can result
in injuries to miners working or operating machinery in the working
place (Tr. 57), he classified an occurrence as improbable (Tr. 57).
It should be recalled that the inspector computed the mean air
velocity as 33 feet per minute. He considered this reading low
because it represented just over half the amount of air required by
30 CFR 75.301-4 (Tr. 96-97). Although.he expressed the opinion that
the velocity was insufficient to carry away methane and respirable
dust (Tr. 57), he admitted a lack of knowledge as to what relationship
33 feet per minute mean air velocity has to exposing a miner to
respirable dust (Tr. 97). Although the mean air velocity has been
rec9mputed as 31.27 feet per minute, the inspector's observations are
still material to the gravity issue because both mean air velocity
figures are approximately the same.

Mr. Budzak, an expert in the field of air velocity measurement
and face ventilation, who testified for Freeman, opined that a miner
operator was not endangered by respirable dust because he would have
been 20 to 22 feet from the dust area (Tr. 212). He stated that the
air velocity figure cited by the inspector would not represent a
dangerous or hazardous condition to a coal miner (Tr. 213-14).
After consideration of all of the evidence, it is found that the
violation was accompanied by a moderately serious degree of gravity.

1247

(c)

Negligence of the Operator

The low air velocity was caused by leakage in the exhaust tubing
(Tr. 93-94).
Although the preshift reports contained no reference to inadequate air in the subject area of the mine (Tr. 81), the inspector
opined that the operator should have been aware of the condition (Tr.
60). The machine was cutting coal when the order was issued (Tr. 60),
although coal production could not have been underway for more than
five minutes prior to the order's issuance (Tr. 117, 119). Mr. Lorne
Boner, the foreman, had not taken air velocity. readings prior to
commencing coal production (Tr. 116-17).
"The inspector testified that when proper air velocity is maintained, a person standing within 30 feet of the inby end of the
exhaust tube can often hear a rush of air entering the tube- (Tr. 58).
The inspector could not~hear air rushing into the tube, which indicated to him that either a leakage in the tube or some other_ problem
was presen·t (Tr. 59) •
Accordingly, it is found that the Respondent demonstrated
ordinary negligence.
(d)

Good Faith in Securing Rapid Abatement

The order was issued at 10:40 a.m. on January 26, 1977, and was
terminated 20 minutes later (Exhs. M-3, M-4, Tr. 92). The tubing
was sealed to ameliorate the leakage problem, and the ends of tubing
installed in other working places were moved outby to further reduce
the leakage (Tr. 93-94). After abatement, the mean air velocity was
computed as 63 feet per minute (Tr. 93). Accordingly, it is found
that the Respondent demonstrated good faith in securing rapid abatement of the violation.
3.

Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4
(a)

Occurrence of Violation

At 5:25 p.m. on January 3, 1977, MSHA inspector Lonnie D. Conner
issued the subject order of withdrawal for a violation of 30 CFR
75.301-4 at the Respondent's Orient No. 6 Mine (Exh. M-5, Tr. 127).
The subject order of withdrawal (Exh. M-5) describes the observed
"condition or practice" as follows:
The continuous mining machine in the 2nd North-West
section, I.D. 067, was loading coal at the face of the
No. 8 room, and the face was being ventilated with a mean
air velocity of only 28 feet per minute.

1248

The air was measured with an approved magnehelic and
pitot tube 20 feet outby the intake end of the exhaust
tubing.
The end of the exhaust tubing was approximately 10 feet from the
face (Tr. 130).
The inspector drilled a small hole in the rigid exhaust tubing,
inserted the pitot tube, read the magnehelic gauge and applied the
reading to the conversion chart (Tr. 132). He determined that 3,002
cubic feet of air per minute was passing through the exhaust tubing
(Tr. 132). He made measurements to determine the area of the working
place (Tr. 132). It measured 14.5 feet by 7.5 feet (Tr. 132), yielding an area of 108.75 square feet. He rounded off this figure to
109 square feet. He divided 3,002 CFM by 109 square feet, and reached
a rounded off mean air velocity of 28 feet per minute (Tr. 132). He
did not deduct the cross sectional area of the approved ventilation
device as required by 30 CFR 75.301-4(b)(l)(ii) (Tr. 139).
A recomputation, using the correct adjusted cross-sectional area
of the working place, reveals the following: The working place
measured 14.5 feet by 7.5 feet, yielding a cross sectional area of
108.75 square feet. The 16 inch exhaust tubing has a cross-sectional
area of 1.39 square feet (Tr. 208, 235). Therefore, the adjusted
cross sectional area of the working place was 107.36 square feet.
(108.75 square feet minus 1.39 square feet equals 107.36 square feet).
3,002 CFM divided by 107.36 square feet yields a mean air velocity of
approximately 27.96 feet per minute.
A question is presented as to whether coal was being "cut, mined
or loaded from the working face with mechanical mining equipment"
within the meaning of 30 CFR 75.301-4(a). The Respondent contends
that the Petitioner failed to overcome the Respondent's evidence that
it was not cutting, loading or mining coal at the face when the
inspector made his air velocity measurements (Respondent's PostHearing Brief, pp. 27, 28, 36). I disagree.
The inspector testified that when he entered the room the continuous miner was at the face and .that through asking somebody he
determined that five or six shuttle cars of coal had been loaded prior
to the issuance of the order (Tr. 129, 135-36, 144). He did not see
the actual subject matter that was loaded out (Tr. 144). Although
the inspector had no present recollection as to whether he observed
coal being loaded out, he concluded that he had observed such activity
because an entry in his notes recorded that the miner was loading coal
at the face of the No. 8 room (Tr. 144).

Mr. Wesley Helm, a face boss at the Orient No. 6 Mine on
January 3, 1977, testified that when he arrived on the section at
approximately 4:45 p.m. (Tr. 160), he observed·rock from a rock fall,

1249

measuring approximately 1-1/2 to 2 feet in depth, on the floor of the
No. 8 room almost the entire distance of the cut (Tr. 161). The roof
was not completely bolted (Tr. 162). The extent of Mr. Helm's
knowledge as to the activities occurring in the No. 8 room prior to
the issuance of the order was revealed on direct examination as
follows:

Q.

Would you have bolted that roof before you mined

any coal?
A. I had to clean up the rocks first. Then it is
possible it wasn't completely cut up. There might have
been room for a little bit of cutting yet without going
out from under the bolts. I am not sure about that.

Q.

Well, did you proceed to load out the rock.

A. I had the miner loading the rock in Room 8.
I was finishing the bolting in Room 9.

Q. Do you recall Mr. Conner taking his reading for
which he issued the order?
A. I didn't see him take the reading.
with the bolter crew in Room 9;

Q.

I was over

Until what time were you loading out rock in

Room 8?

.A.

Until what time?

Q.

Yes, sir.

A. I would say until 5:25 when Mr. Conner came in.
He says they were loading coal. If so, it had to be they
had finished the rock, and they had just hit the face for
as much as I could tell. I wasn't there. Like I say, I
was with the bolter crew.
(Tr.

162~63)~

The foregoing testimony reveals that Mr. Helm was not present
in the No. 8 room when the inspector conducted his air velocity
measurements. He was uncertain as to precisely when the loading of
rock ceased, and his testimony implies that some coal could have
been loaded in the inspector's presence.
Exhibit 0-4 reveals that the Respondent started loading coal at
8:35 p.m., and that 25 buggies of coal were loaded out (Tr. 165).

1250

Normally, approximately 75 to 80 buggies of coal would be loaded out
on ·a shift, absent cleanup difficulties or mechanical problems (Tr.
165).
However, Exhibit 0-4 cannot be read for the proposition that
absolutely no coal was loaded prior to the 5:25 p.m. issuance of the
order because Mr. Helm's testimony reveals that a small amount of
coal could have been loaded a few moments before 5:25 p.m.
Accordingly, it cannot be found that the Respondent has rebutted
the evidence adduced by the Petitioner on the question of coal
production.
Accordingly, it is found that a violation of 30 CFR 75~301-4 has
been established by a preponderance of the evidence in that the mean
air velocity was 27.96 feet per minute in a working place where coal
was being cut, mined or loaded from the working face with mechanical
mining equipment.
(b)

Gravity of the Violation

The explosive range for methene is 5 to 15 percent (Tr. 210).
Methane is normally liberated in greatest quantity at the face when
coal is being cut and loaded (Tr. 135). It is not possible to predict when a large amount of methane will be liberated (Tr. 227). The
inspector classified the mine as gassy, but his methane readings
revealed no accumulations of methane at the face (Tr. 135). The miner
was not cutting coal when the methane readings were taken (Tr. 135).
The inspector classified the violation as serious because the
ventilation was not adequate to deal with the liberation of a sizable
amount of methane (Tr. 134). According to the inspector, 28 feet
per minute mean air velocity is not sufficient to carry coal dust
from the face areas without contaminating the mining machine operator's breathing air (Tr. 134).

Mr. Budzak disagreed, stating that the air velocity was sufficient to alleviate respirable dust problems for the miner operator
(Tr. 212-14).
After consideration of all of the evidence, it is found that "the
violation was accompanied by a moderately serious degree of gravity.
(c) Negligence of the Operator
According to Mr. Helm, the preshift reports indicated low air
on the return (Tr. 159-60).
The exhaust tubing contained several flexible ribbed, canvastype couplings that increased the air resistance in the tube (Tr.
130-137). The flexible couplings were being employed to negotiate

1251

c·orners in lieu of rigid couplings (Tr. 137). The use of the flexible. couplings caused the Respondent to experience considerable difficulty in maintaining 60 feet per minute mean air velocity (Tr. 138).
Additionally, the Respondent was not sealing the joints between the
sections of rigid tubing, thus contributing further to the air
velocity problem (Tr. 138).
Accordingly, it is found that the Respondent demonstrated
slightly more th~n ordinary negligence.
(d)

Good Faith in Securing Rapid Abatement

The order was issued at 5:25 p.m. and terminated at 7:45 p.m.
(Exh. M-5, M-6, Tr. 127).
The ribbed joints were removed. The ventilation tubing was taken
down and reinstalled. The joints were sealed to prevent air leakage
(Tr. 138). After abatement, the mean air velocity exceeded 60 feet
per minute (Tr. 138).
Accordingly, it is found that the Respondent demonstrated good
faith in securing rapid abatement of the violation.
4.

\

Order No. 1 LDC, January 19, 1977, ~O CFR 75.301-4
(a)

Occurrence of Violation

At 9:50 a.m. on January 19, 1977, MSHA inspector Lonnie D. Conner
i"ssued the subject order of withdrawal at the Orient No. 6 Mine citing
the Respondent for a violation of 30 CFR 75.301-4 (Exh. M-7, Tr. 168).
The subject order of withdrawal (Exh. M-7) describes the observed
"condition or practice" as follows:
Coal was being loaded at the face of No. 22 room
of the 15th North-East Section, I.D. 068, and the far.e
was being ventilated with a mean air velocity of only
44 feet per minute. The air was measured with an
approved magnehelic gage and pitot tube 20 feet outby
the intake end of the exhaust tubing.
The testimony of Mr. Ray E. Williams confirms that two loads of
coal were mined prior to.the issuance of the order (Tr. 197).
The inspector computed the quantity of the air passing through
the exhaust tube as 4,747 cubic feet per minute (Tr. 172). The working place measured 16.5 feet by 6.5 feet (Tr. 170, 173), yielding an
area of 107.25 square feet (Tr. 173). He rounded off the area to
107 square feet (Tr. 173), divided 4, 747 by 1_07 and thereby computed
the mean air velocity as 44 feet per minute (Tr. 173). In computing
the cross sectional area of the working place, he did not make an
adjustment for the area of the exhaust tubing (Tr. 181).

1252

A recomputation, using the correct adjusted cross sectional area
of the working place, reveals the following: The working place measured 16.5 feet by 6.5 feet, yielding a cross sectional area of
107.25 square feet. The 16 inch exhaust tubing has a cross sectional
area of 1.39 square feet (Tr. 208, 235). Therefore, the adjusted
cross sectional area of the working place was 105.86 square feet.
(107.25 square feet minus 1.39 ·square feet equals 105.86 square feet).
4,747 CFM divided by 105.86 square feet yields a mean air velocity of
approximately 44.84 feet per minute.
Accordingly, it is found that a violation of 30 CFR 75.301-4 has
been established by a preponderance of the evidence in that the mean
air velocity was approximately 44.84 feet per minute in a working
place where coal was being cut, mined or loaded from the working face
with mechanical mining equipment.
(b)

Gravity of the Violation

The inspector classified the violation as serious because the
mean air velocity was insufficient to carry away either a large accumulation of methane or the coal dust suspended in the air (Tr. 173).
A face ignition can occur in the presence of a buildup of methane
(Tr. 173). The inhalation of coal dust can eventually develop into
black lung disease (Tr. 173-174).
It is not possible to predict when sudden releases of methane
from the face will occur during the mining operation (Tr. 174, 227).
Methane is explosive in the 5 to 15 percent range (Tr. 210). The
inspector took methane readings and detected no methane accumulation
at the face (Tr. 171). Serious injury or death could result from an
ignition (Tr. 174). The number of persons affected would depend upon
the magnitude of the ignition (Tr. 174). The crew usualiy consists
of 8 or 9 workmen (Tr. 174).
According to the inspector, the seriousness of the violation
would not be diminished by the presence of water sprays on the cutting
head of the.miner because the spray does not precipitate out all
respirable dust (Tr. 182-83).
Mr. Budzak testified that the air velocity as described by the
inspector, was sufficient to prevent a coal miner from being exposed
to a dangerous or hazardous condition (Tr. 212-14).

After consideration of all of the evidence, it is found that the
violation was accompanied by a moderate degree of gravity.
(c)

Negligence of the Operator

Mr. Ray E. Williams, the Respondent's foreman, permitted coal
production to begin prior to conducting air velocity tests in the

1253

exhaust tube (Tr. 195-97). When he took his readings, he discovered
that the air velocity was·45 or 46 cubic feet pe~ minute (Tr. 195).
He testified that immediately upon discovering the low air velocity,
but immediately before the inspector's arrival, he ordered the
machine shut down (Tr. 196). Two loads of coal were mined during the
course of approximately 4 minutes (Tr. 197).
According to the inspector, the last 10 joints in the tubing had
not been sealed and there was one flexible ribbed, canvas type connecting joint in the line of tubing (Tr. 170). He testified that
these characteristics indicated operator negligence because a previous
discussion with mine personnel had resulted in' a concensus that the
tubing joints had to be sealed and the flexible-type couplings removed
to assure adequate face ventilation (Tr. 174-75).
Accordingly, it is found that the Respondent demonstrated
slightly more than ordinary negligence.
(d)

Good Faith in Securing Rapid Abatement

The order was issued at 9:50 a.m. and terminated at 11 a.m.
(Exhs. M-7, M-8, Tr. 168, 175). Abatement was achieved by sealing
the joints in the exhaust tubing (Tr. 175). The corrective action
increased the mean air velocity to greater than 60 feet per minute
(Tr. 175).
.
Accordingly, it is found that the Respondent demonstated good
faith through securing rapid abatement of the violation.
C.

Order No. 1 LDC, January 12, 1977, 30 CFR 75.400

(1)

Occurrence of Violation

MSHA inspector Lonnie Conner conducted a regular health and
safety inspection at the Respondent's Orient No. 6 Mine on
January 12, 1977 (Tr. 7). He walked the Main West North conveyor
belt, arriving in the area at approximately 9:30 a.m. (Tr. 7). He
issued the subject order of withdrawal at 11 a.m. (Tr. 6, Exh. M-1),
citing the Respondent for violating the mandatory safety standard
embodied in 30 CFR 75.400 in that accumulations of combustible materials were observed along the Main West North conveyor belt (Tr. 8,
Exh. M-1).
Two airlocks were located across the belt travel entry approximately 5 or 6 crosscuts from the point where the subject belt dumped
onto the Main North belt (Tr. 8). The two airlocks were approximately
70 to 80 feet apart (Tr. 8). Along that, 70 to 80 foot distance, the
inspector observed float coal dust, coal dust and loose coal (Tr. 8).
Immediately inby the first airlock, he observed large accumulations
of coal dust and float coal dust (Tr. ~). The coal dust was 5 to

1254

6 inches in depth where the air gbing through the airlock was blowing
it off the belt (Tr. 9). The float coal dust was not only in the
belt entry, but also in the intersecting crosscuts and in the en~ry
immediately north of the belt line (Tr~ 8). The inspector testified
that the instability of float coal dust renders it difficult to
measure (Tr. 10).
The inspector proceeded from the inby airlock, traveling west on
the south side of the belt (Tr. 10). He observed accumulations of
coal and coal dust 2 to 6 inches deep all along the south side of the
belt and underneath the belt up to a point 70 feet outby the tailpie~e, a distance of approximately 2, 300 feet '(Exh. M-1, Tr. 10).
The 2,300 feet was determined by taking a measurement off the mine
map (Tr. 11).
Float coal dust was observed on rock dusted surfaces along the
belt entry and intersecting crosscuts from the inby airlock to the
1,150 foot mark (Tr. 12, Exh. M-1).
All depths were measured with a steel tape (Tr. 10, 11). All
areas cited were dry, including the float coal dust (Tr. 12). The
inspector testified that the belt was in operation and that the
conditions were observed during a production shift (Tr. 7), but he
did not recall whether coal was being loaded (Tr. 7).
The witnesses disagreed as to the extent of the combustible accu- .
mulations. The inspector described them as deep and continuous (Tr.
2'50), while the testimony of Mr. Peter Helmer, the mine superintendent, portrays a different picture. Mr. Helmer inspected the area
cited in the subject order of withdrawal immediately after its issuance (Tr. 267). He testified that he observed intermittent piles
containing loose coal, rock and coal dust along the south side of the
belt. According to Mr. Helmer, it was not a continuous spillage (Tr.
267). He indicated that a problem existed in that area of the mine
with rock falling from the roof and ribs, a condition that makes any
accumulation appear more extensive than if it consists only of coal
(Tr. 267). However, he did not mention specifically either the presence or the absence of float coal dust in the subject area, while the
inspector indicated that the float· coal dust was present for a length
of 1,150 feet (Tr. 10, 12).
In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-19i:·,
OSHD par. 22,088 (1977), motion for reconsideration denied, 8 IBMA
196, 1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations
Appeals (Board) held that the presence of a deposit or accumulation
of coal dust or other combustible materials in the active workings
of a coal mine is not, by itself, a violation.
In that case, the Board held that MSHA must be able to prove:

1255

(1) that an accumulation of combustible material
existed in the active workings, or on electr.ical
equipment in active workings of a coal mine;
(2) that the coal mine operator was aware, or,
by the exercise of due diligence and concern for the
safety of the miners, should have been aware of the
existence of such accumulation; and
(3) that the operator failed to clean up such
accumulation, or failed to undertake to clean it up,
within a reasonble time after discovery, ~r, within
a reasonable time after discovery should have been
made.
8 IBMA at 114-115.
The Respond~nt in its post-hearing brief, argues that MSHA has
failed to prove that an accumulation of combustible materials existed
in the mine' s active workings as described in the or.der of withdrawal
(Exh. M-1)° (Respondent's Post-Hearing Brief, pp. 52). In support of
its ?Osition, the Respondent points to the testimony of Mr. Helmer,
which indicates that some rock was intermixed with the accumulations,
and argues that samples were not taken and analyzed to determine the
combustibility of the accumulation. I disagree with the Respondent's
theory for two reasons: First, visual observations are sufficient to
prove a violation of 30 CFR 75.400. Coal Processing Corporation,
2 IBMA 336,, 345-46, 80 I.D. 748, 1973-1974 OSHD par. 16,978 (1973).
Second, the rebutting evidence adduced by the Respondent is insufficient to establish that rock was present in sufficient quantities to
render the accumulations i~ert. Accordingly, it is found that accumulations of combustible materials were present in the mine's active
workings as described in the order of withdrawal (Exh. M-1).
The second question presented is whether the operator knew or
should have known of the accumulation's presence. The preshift report
for the examination conducted between 4 a.m. and 8 a.m. on January 12,
1977 (Exh. 0-6) states: "The 4th main west belt dirty, 800 to 850 11
(Tr·. 259). This entry refers to the belt cited by the inspector (Tr.
258, 259). According to Mr. Helmer, the entry refers to a 50 foot
section of belt iocated at the second north belt transfer point (Tr.
259). The preshift reports for the 2 previous shifts, (Exh. 0-7,
0-8) described the subject belt as "safe" (Tr. 260-61). Accordingly,
it is found that the Respondent first gained knowledge of an accumulations problem along the subject belt through the entry in Exhibit
0-6.
It should be pointed out that the 50 foot area described in
Exhibit 0-6 is considerably less than the area cited in the subject
order of withdrawal (Exh. M-1). However, the evidence is insufficient

1256

to conclude that the Respondent knew or should have known of the more
extensive accumulation problem for the following reasons: First,
there is no credible evidence in the record to establish that the
preshift examination was less than thorough. Second, the inspector's
estimate that the condition had existed for more than 16 hours was
based on his observations of the extent of the accumulations which he
interpreted in conjunction with his belief that :the area had been
reported dirty on two successive shifts (Tr. 13, 14, 250). Since this
misaken belief as to the entries in the preshift reports for the three
preshift examinations immediately preceding the order of withdrawal
figured conspicuously in his time estimate, his opinion that the
accumulations had existed for two shifts cannot be accepted.
The remaining question presented is whether the Respondent failed
to cleanup, or failed to undertake to cleanup, the accumulations
within a reasonable time after discovery. As to the issue of
"reasonable time," the Board stated:
As mentioned in our discussion of the responsibilities imposed upon the coal mine operators, what consitutes
a "reasonble time" must be determined on a case-by-case
evaluation of the urgency in terms of likelihood of the
accumulation to contribute to a mine fire or to propagate
an explosion. This evaluation may well depend upon such
factors as the mass, extent, combustibility, and volatility of the accumulation as well as its proximity to an
ignition source.
8 IBMA at 115.

The Board further stated:
With respect to the small, but inevitiable aggregations of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view
that the maintenance of
regular cleanup program, which
would incorporate from one cleanup after two or three
production shifts to.several cleanups per production
shift, depending upon the volume of production involved,
might well satisfy the requirements of the standard. On
the other hand, where an operator encounters roof falls,
or other out-of-the ordinary spills, we believe the operator is obliged to cl~an up the combustibles promptly upon
discovery. Prompt cleanup response to the usual occurrences of excessive accumulations of combustibles in a coal
mine may well be one of the most crucial of all the
obligations imposed by the Act upon a coal mine operator
to protect the safety of.the miners.

a

8 IBMA at 111.

1257

Only meager evidence is contained in the record as to the Respondent's cleanup plan. The·extent of the inspector's knowledge on this
subject is revealed in the following question-and-answer dialogue with
counsel for the Petitioner:

Q. Do you know if there was a plan in effect for
the cleaning up of the spillage along these belt lines?
A.

No, sir; not at that time, I didn't.

Q.

Had you ever seen a plan?

A.

I had never seen a plan.

Q. Have you any idea that there was a plan in
effect for cleanup at the mine?

A. No, sir; not as far as belt lines go. I am
unaware of any cleanup plan for belt lines. The only
thing· that I know is that men were assigned to some
belts, some belts they weren't, and men were assigned
as needed-, as determined by the mine manager, to certain
belts.
Q. Do you know if men were regularly assigned to
this belt?
A.

No, I don't.

(Tr. 15).
Furthermore, at the time the order was written, the inspector
made no attempt to determine whether a cleanup program existed for
the belt (Tr. 36). The s.ole evidence adduced by the Respondent as
to cleanup .Procedures at the mine was Mr. Helmer's statement that
belt cleaners are regularly assigned to clean belt transfer points
at the start of every shi~t (Tr. 265).
Proof of the inadequacy or nonexistence of a cleanup plan is
central to the question of whether the operator failed to cleanup, or
failed to undertake to cleanup, the accumulations of combustible
materials within a reasonable time after the operator knew or should
have known of their existence. Therefore, such proof must be adduced
by MSHA as part of its prima facie case if the inadequacy or nonexistence of the cleanup plan is to provide the corner stone for a
finding on the question of reasonble time. This conclusion is reinforced by the Board's statement that proof of the absence of a regular
cleanup program, coµpled with the presence of any accumulation, might
be sufficient to support a violation of 30 CFR 75.400. Old Ben Coal
Company, 8 IBMA 196, 198, 1977-1978 OSHD par, 22,328 (1977). (denying

1258

the government's motion for reconsideration of the decision in Old Ben
Coal Co., 8 IBMA 98). The Board's statement indicates that the burden
of going forward with the evid.ence is borne by MSHA.
Both the inspector's uncertainty as to the existence of regular
cleanup procedures for 'belts and the limited extent of his knowledge
as to the assignment to cleanup men to the belts, cannot be deemed
sufficient proof of the absence or inadequacy of a regular cleanup
program.
However, this conclusion does not end the inquiry, because the
crux of a violation is the failure to cleanup,· or undertake to
cleanup, the accumulations within a reasonable time after discovery.
The above-mentioned proof as to the cleanup plan, although an effec~
tive ·gauge of the reasonable time factor, is by no means the exclusive
method of proof. All that Old Ben requires of an inspector before
issuing a citation is that he make a sound judgment as to when the
operator acquired knowledge of the accumulation's presence and whether
cleanup commenced within a reasonable time.
Although the inspector's background and training qualified him
as a11 expert, he gave no affirmative opinion on the reasonble time
issue. However, sufficient inferences can be drawn from his testimony to assess his thoughts thereon.
The inspector testified that he checl).ed the preshift books, and
that the belt had been recorded "dirty" for two shifts prior to his
inspection (Tr. 13). The only notations that he took from the books
were the approximate footage marks for the recorded accumulations
(Tr. 13). According to the inspector, the belt was recorded dirty
from the 790 foot mark to the 818 foot mark·and, to the best of his
recollection, from the 800 foot mark to the 880 foot mark, (Tr. 13),
which totaled approximately 107 feet (Tr. 14).
The inspector testified that, in his opinion, the coal and coal
dust accumulated "over a period of time" (Tr. 13). Although he never
expressed a firm opinion as to the approximate duration of the accumulations existence, he did state on direct examination that the preshift books indicated that the condition had existed on two previous
shifts (Tr. 14). He interpreted this as meaning in excess of 16 hours
(Tr. 14). On redirect examination, the inspector testified as
follows:

Q. Mr. Conner, did visual observations which you
had before you have any bearing on your determination
on how long the accumulations had been there?
A.

Yes, sir, they did.

Q.

Could you explain how?

1259

A. The accumulations were deep and continuous. In
one particular spot, there was more than three ton of
coal in one particular spot along the belt that had got
there from some kind of dumping. So, I assume., going
along with the pre-shift examiners' books, it is my
opinion that the accumulations had been there for some
time.
(Tr. 249-50).
The inferences drawn from the above-quoted passage, coupled with
the inspector's recollection as to the time periods covered in the
relevant preshift reports, lead to the conclusion that the depth and
extent of the accumulations were interpreted in conjunction with the
preshift reports in reaching the conclusion that the coal and coal
dust had been present for "some time." These factors evidently led
to the conclusion that the accumulations had been present for
2 shifts;..!.·~·, more than 16 hours.
However, the preshift reports do not support the inspector's
time estimate. The report for the preshift examination conducted
between 4 a.m. and 8 a.m. on January 12, 1977 (Exh. 0-6) record~d a
spillage problem on the subject belt between "800" and "850," a
distance of 50 feet (Tr. 259). The reports for the preshift examinations conducted between 8 p .m. and 12 midnight on January 11, 1977
(Exh. 0-7) and between 12 noon and 4 p.m. on January 11, 1977 (Exh.
0-8) reveal no accumulations problems along the subject belt (Tr.
260-61). Thus, a key factor in the inspector's equation has been
proven in error.
The second factor involves the presence of cleanup personnel
along the subject belt. The inspector testified that he saw three
workmen and one boss performing cleanup operations at th.e tailpiece
of the subject belt (Tr. 37). He assumed that they had started at
the beginning of the shift, an assumption confirmed by the testimony
of Mr. Helmer (Tr. 266). The inspector opined that more than
25-manshifts would have been required to remove the accumulations and
rock dust along the belt (Tr. 15h
It can be inferred from the above-mentioned factors that they
provide the basis for whatever conclusion the inspector reached as to
whether the operator failed to undertake cleanup procedures within
a reasonable time after the operator acquired knowledge of the accumulations' presence. Since the time element, a key factor in this
equation, was in error, and since the inspector.failed to make a
determination as to the cleanup procedures at the mine, it cannot be
found that he made a sound judgment as required by Old Ben as to how
long the accumulations had existed and whether the operator failed
to c.leanup, or undertake to cleanup, the accumulations within a
reasonable time.

1260

In fact, the evidence reveals that the Respondent first became
aware of an accumulations problem along the subject belt through the
preshift report recording the findings of the preshift examination
conducted between 4 a.m. and 8 a.m. on January 12, 1977 (Exh. 0-6).
The Respondent assigned men to the belt at the beginning of the 8 a.m.
to 4 p .m. shift on January 12, ·1977, in response to the entry in
Exhibit 0-6 (Tr. 265-66), and these men were in the process of cleaning the belt during the inspector's inspection tour (Tr. 37, 279).
As the Board observed in Old Ben: "When a coal mine operator
undertakes, or is engaged in, cleaning up accu1nulations ·of combustible .,
materials, he is then certainly not permitting such accumulations."
8~ IBMA at 112.
Since the Respondent commenced cleanup procedures immediately
upon learning of the problem, it canrtot be found that it was permitting them ·to accumulate. Furthermore, this interpretation of the
facts is also set forth in the Respondent-' s post-hearing brief
(Respondent's Post-Hearing Brief, pp. 53-54). It is interesting to
note, although it is not a controlling factor, that the Petitioner
did not submit a reply brief indicating any disagreement with this
interpretation.
Accordingly, it is found that the.Petitioner has failed to establish a violation of 30 CFR 75.400 by a preponderance of the evidence.
D.

History of Previous Violations

Exhibit 3 is a computer printout of Office of Assessment records
containing the history of paid penalty assessments for the Orient
No. 6 Mine, beginning January 1, 1970 and ending October 28, 1976.
The history of previous violations during the 21 months prior to
January 19, 1977, as reported in Exhibit 3, is contained i.n the
following chart:

30 CFR
Standard

Year 1
(12 Months)
1/20/75-1/19/76

Year 2
(9 Months)
1/20/76-10/28/76

181
133
All sections
0
2
75.301-4
(Note: All figures are approximations)
E.

Totals

314
2

Appropriateness of Penalty to Operator's Size

The Freeman United Coal Mining Company produces approximately
6,221,752 tons of coal per year. (Stipulations embodied in transcript

1261

of the September 26, 1978, proceedings, pp. 5, 11). The Orient No. 6
Mine produces approximately 1,159,797 tons of~coal per year. (Stipulation embodied in transcript of the September 26, 1978, proceedings,
pp. 5, 11).
.
F.

Effect on Operator's Ability to Continue in Business

Counsel for the Respondent concedes in his post-hearing brief
that assessment of the maximum penalty will have no effect on the
Respondent's ability to continue in business (Respondent's PostHearing Brief, pp. 33, 38, 42, 56). Furthermore, the Interior Board
of Mine Operations Appeals· has held that evidence relating to whether
a civil penalty will affect the operator's ability to remain in
business is within the operator's control, resulting in a rebuttable
presumption that the operator's ability to continue in business will
not be affected by the assesssment of a civil penalty. Hall Coil
Company, 1 IBMA 175, 7.9 I.D. 668, 1971-1973 OSHD par. 15,380 (1972).
Therefore, I find that penalties otherwise properly assessed in this
proceeding will not impair the operator's ability to continue in
business.
VI.

Conclusions of Law

(1) Freeman United Coal Mining Company and its Orient No. 6
Mine have been subject to the provisions of the Federal Coal Mine
Health and Safety Act of 1969 and the 1977 Mine Act during the
respective periods involved in this proc~eding.
(2) Under the Acts, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to this proceeding
(3) MSHA inspectors Kirby L. Webb and Lonnie D. Conner were
duly authorized representatives of the Secretary of Labor at all
times relevant to the issuance of the orders of withdrawal which
are the subject matter of this proceeding.

(4) The violations charged in Order No. 1 KLW, January 26, 1977,
·30 CFR 75.301-4; Order No. 1 LDC, January 3, 1977, 30 CFR 75.301-4;
and Order No. 1 LDC, January 19, 1977, 30 CFR 75.301-4 are found to
have occurred as set forth in Part V, supra.
(5) Petitioner has failed to establish a violation of 30 CFR
75.400 as relates to Order No. 1 LDC, January 12, 19z7.
(6) All of the conclusions of law set forth in Part V, supra,
are reaffirmed and incorporated herein.
VII.

Proposed Findings of Fact and Conclusions of Law

Freeman United Coal Mining Company submitted a post-hearing
brief. MSHA submitted no post-hearing brief. Such brief, insofar as·

1262

it can be.considered to have contained proposed findings and conclusions, has been considered fully, and except to the extent that such
findings and conclusions have been expressly or impliedly affirmed in
this decision, they are rejected on the ground that they are, in
whole or in part, contrary to the facts and law or because they are
immaterial to the decision in this case.
VIII.

Penalty Assessed

Upon consideration of the entire record in this case and the ,
foregoing findings of fact and conclusions of law, I find that the
assessment of penalties is warranted as follows:
Order No.
1 KLW
1 LDC
1 LDC

Date

30 CFR Standard

01/26/77
01/03/77
01/19/77

75.301-4
75.301-4
75.301-4

Penalty
$

800
600
600
$2,000

ORDER
--Respondent is ORDERED to pay the civil penalty in the amount of
$2,000 assessed in this proceeding within 30 days of the date of this
decision.
IT IS FURTHER ORDERED that the petition be DISMISSED as relates
to Order No. 1 LDC, January 12, 1977, 30 CFR 75.400.

~
hnF.~
Issued:
Distribution:
Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Sidney Salkin, Esq., Office of the Solicitor, Room 14480-Gateway
Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Harry M. Coven, Esq., Goul~ & Ratner, 300 West Washington
Street, Chicago, IL 60606 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

1263.

FEDERAL MINE SAFEYY AND MEA~.:r~

REVH~:w COMM&SS§ON

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VlRG INIA 22203

.

.b.UG ._
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner'

Civil Penalty Proceedings
Docket No. NORT 79-14-P
A.c. No. 44-03613-03001

v.
No. 5-A Mine
HARMAN MINING CORPORATION,
Respondent

Docket No. NORT 79-51-P
A.c. No. 44-04559-03001
No. 3-A Mine
Docket No. NORT 79-57-P
A.C. No. 44-03614-03004V
No. 5-B Mine

DECISION
Appearances:

Leo J. McGinn, Esq. , Office of the Solicitor, Depart- ·
ment of Labor, for Petitioner;
Robert M. Richardson, Esq., and Peter Richardson,
Esq., Richardson, Kemper, Hancock & Davis, Bluefield,
West Virginia, for Respondent.

Before:

Administrative Law Judge Michels

On June 19, 1979, a hearing was held in Abingdon, Virginia, for
the above-captioned cases, at which both parties were represented by
counsel. At this hearing, the following action was taken on the
cases:
NORT 79-14-P
In this case, counsel for Petitioner moved to withdraw its petition for the assessment of civil penalties regarding the alleged vio"iations docketed therein (Tr. 4). 1/ As grounds for the proposed
action, Petitioner stated the following:
1/ Exhibit "A" of the petition for assessment of civil penalties
listed 13 other citations besides the four involving 30 CFR 75.1710.
At the hearing, Petitioner advised that these other alleged violations had been settled at the assessment conference level and that
the petition had been incorrect in so listing these (Tr. 6-7).

1264

Your Honor, Docket Number NORT 79-14-P consists of
four alleged violations- of 30 CFR 75.1710 issued in April,
1978. As the result of facts uncovered prior to this hearing, MSHA moves at this time to withdraw the petition for
the assessment of civil penalty for each of these viola~ions
on the basis that a technical investigation of the mine conducted on May 5th, or prior to May 5th and reported to MSHA
on May -- excuse me, on May 5, 1976, a petition for modification under Section 30, seeking to be released from the
requirements of 75.1710. The technical investigation was
subsequently conducted, in which it was determined that the
mining heights ranged from thirty-seven to rorty-eight inches,
and that the mine consisted of undulating bottom conditions.
In each of the instances involved in the allegations here,
they were terminated on the basis that the application was
withdrawn and the mines permanently sealed and abandoned in
May, 1978. In a letter from the district office to the MSHA
national office, received in May, 1978, this was .verified,
and that the bottom conditions were undulating and the mine
mining 4eights did range below the minimum forty-two inches
requirement. Because of the large number of petitions for
modification which were currently under consideration and
because of the change over from the Interior to Labo.r, the
decision was not issued until November, 1978, at which time
the petition was granted and the proceeding was dismissed.
Further investigation with the MSHA field office determined
that at the time violations were issued, the mine mining
heights did range to a low of thirty-seven inches, below the
mandatory requirement of forty-two inches, and the bottom was
continually undulating at that height. And that MSHA felt it
could not sustain the burden of proof required under 75.1710,
and moves to withdraw the petition.
(Tr. 4-6).
Respondent did not object to the proposed action. Thereupon, a
decision was issued from the bench granting Petitioner's request to
withd~aw its petition for assessment and the proceeding was dismissed
(Tr. 8). I hereby AFFIRM that ruling.
NORT 79-51-P
This docket involves one violation of 30 CFR 75.400. The regulation provides that "[c]oal 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."
After considering the evidence which both parties placed on the
record, a decision was issued from the bench which sets forth findings

1265

as to the fact of the violation and the statutory criteria. This
decision. from pages 84-91 of the transcript, with grammatical corrections and some changes where the text is garbled, is set forth
below:
The first matter that I have to decide, of course, is
whether or not there was a violation and if there is found
to be a violation, then I have to make findings from this
record on the criteria in order to assess the appropriate
penalty.
Much was made of the Old Ben decision, that is, 8 IBMA
98, (1977), and that was by the Board of Mine Operations
Appeals, which reviewed the case coming up under the Coal
Mine Act. Now then, I have had the opportunity to review
this particular decision and I won't say that the words that
I am now going to state are the last word on the matter, but
here is my belief: that the decision lays down certain criteria for the inspectors to follow and I am going to hold at
least for now, that this is to be discretionary and advisory.
I don't say it isn't important, -::hat maybe the inspector
should follow that and perhaps by failing to follow it,
maybe the Secretary takes the risk of not sustaining its
case when it gets into court. But I am going to hold that
the mere fact of the failure to follow that would not mean
that MSHA could not have a sustainable case.
There are, however, certain other requirements which
the Board has laid down and I believe those are requirements
which I would have to follow in assessing this case. And the
first one is that an accumulation of a combustible material
existed in the active workings and on electrical equipment
in the active workings of a coal mine. My finding on that
is that there were combustible accumulations here. I w~ll
give you the reason. First, I want to state, however, that
none of these findings at this point bear on either the
seriousness or the degree of negligence. I am deaHng merely
with the fact of the violation •. My reason for finding that
there was an accumulation is based on the inspector's testimony. I accept his testimony that there was relatively fine
dust in an area, covering I guess anywhere from ten by ten
to fifteen feet around the tail piece, and up to three inches
in depth and tapering off. I don't suppose that this would
be a large accumulation, but I think that it is a pile of
dust and it did accumulate. The mere fact that he didn't
see it accumulating at the time, I don't think is important.
It was there and it had accumulated, at least insofar as
whether it was an accumulation within the meaning of the
Act. And certainly it was of a combustible material since
it was coal and coal dust.

1266

The next requirement -- this is again according to the
Board -- that the coal mine operator was aware and by exercise of due diligence and concern for safety of the miners
should have been aware of the existence of such accumulation.
To continue on the question of awareness, my finding would
be ·that the-operator should have been aware of this. And I
will try to give my reasons here i f I can. The inspector
was the only Witness that testified that saw or was near
this accumulation until after it was cleaned up. Nobody
testified as to having seen it beforehand, ~o the question
of awareness it seems to me, depends to a degree on how long
it was there. And whether, therefore, it should have been
observed by the preshift inspector or onshift inspector or
other people that normally inspect this area of the mine.
And the length of time that it was there again depends to a
degree on the inspector's testimony, or at least I accept
his testimony as to the fact that it had been there for
sometime and probably before that shift. In other words,
it exis.ted from the prior shift.
I recognize that others did testify there was a cleanup
plan and it was regularly complied With and that, and the presumption being then, therefore, .that the accumulation could
not have been there that long. But you see, nobody else had
been at the site around this mine. The inspector made his
evaluation based on the looks of it, the way in which it
appeared to him that it had accumulated. It is possible
that even though there is a plan in effect, it had been
cleaned up within a reasonable time. It.is difficult to
say. But there was nobody that testified that he was there
on that shift or on the end of the ·last shift and that it
wasn't there at that time. Any evidence like that I think
would have certai'nl.y been sufficient to rebut the inspector's testimony, but on the basis of the record as I have
it, I believe that I would have to give his testimony weight
and I accept that and I find, therefore, that it was there
for sometime and should have been noted.
Furthermore, even if the plan was being. followed there
was an accumulation that, again accepting the inspector's
testimony, did create a potential hazard. It was up to the
belt. It is true it wasn't over the roller, but it was up
to the belt. It was being kicked up. If it was up that
far, that it could be blown into the air, it seems to me
that it certainly had the potential for a hazard there. So,
therefore, even if the plan was being followed on a daily
basis, it appeared to me, and I would say it was the kind of
thing that should have been cleaned up on an accelerated
basis or sometime during the course of the shift.

1267

That brings us down then to the third and final requirement which the Board has laid out, and that· is the operator
failed to clean up the accumulation or failed to undertake
to clean it up within a reasonable time after discovering or
within a reasonable time after discovery should have been
made. I believe I have already addressed that in my comments on how long the accumulation apparently existed I have
made some notes here, and this may be somewhat repititious,
but it is based on the inspector's testimony that this was
comparatively fine dust even if not float coal dust, and it
was being picked up by the belt. It was an accumulation
that would need to be cleaned up, perhaps on ·an accelerated
basis more than once a shift or without waiting for the
normal once-a-shift cleanup. I recognize that Mr. O'Quinn
did.testify that this was not, in his view, a real bad accumulation and it probably would not need to be cleaned up,
in his view, until it had reached the roller, in which case
it would create a hazard. And I am going to take that kind
of testimony into account as far as the gravity is ·concerned,
but I do-not give his testimony on that a great deal of
_wejght otherwise insofar as the hazard involved is concerned. I conclude, therefore, that, that this accumulation did constitute a violation of 30 CFR 75.400.
The criteria for the assessment of a penalty are:
First, the history. As I previously indicated, there is
no indication of a significant history, and I would so
find. There apparently was no other violation that would
involve this particular standard.
Secondly, the company is small, based on the production of 700 tons a day and the employment of twenty or so
miners.
Good Faith. The mine operator did abate this violation
promptly and in good faith. Based on G-2, which the inspector wrote, the coal dust and fine coal was removed promptly.
There is another criterion; that is, whether the fine
that would be assessed here would affect the opera.tor's ·
ability to continue in business and there was nothing
adduced which would indicate any reasonable fine here would
affect the operator's ability. So I so find.
There are two other criteria; the first is negligence
and I have already somewhat indicated, I believe, my finding on that in my finding on the fact of the violation. I
believe that this operator should have known of an accumulation which has been shown had existed for sometime. I
accept the statements that an oral cleanup plan was in

1268

effect and was being followed arid so therefore, it would
mean this might have been an oversight or somehow it was
overlooked. Also, I r~cognize the fact that there is some
dispute that this was a pile or an accumulation which needed
to be cleaned up immediately. It is to that extent, perhaps,
partly a judgment proposition, and so I would find as the
result, small or little negligence in the failure to clean
up.
Insofar as gravity is concerned I would find, based on
the fact that it was a comparatively small accumulation, that
it was not serious. I don't believe that I have ever had a
matter in which an accumulation was of this relatively small
size. I don't mean for a moment that this doesn't mean it
couldn't be hazardous, depending on the conditions. And I
have already indicated that I accept the inspector's statement. He was there and he saw it and he was able to make
the judgment on the spot and I accept that. But I do have
to agree that it was not very large, and as indicated by the
fact that it was cleaned up in a very short time.
(Tr. 84-91).
Respondent was assessed a penalty of $25 for the violation (Tr.
92). I hereby AFFIRM the above decision and penalty and it is ORDERED
that Respondent pay the sum of $25 for the violation in NORT 79-51-P
within 30 days of the date of the issuance of this decision.
NORT 79-57-P
This docket involves one violation of 30 CFR 75.200 which covers
roof-control programs and plans. The pertinent portion of this standard reads:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining
system of each coal mine and approved by the Secretary
shall be adopted and set out in printed form on or before
May 29, 1970. The plan shall show the type of support and
spacing approved by the Secretary.
On the basis of the evidence which Petitioner and Respondent
introduced at the hearing, a decision was issued from the bench which
sets forth findings as to the fact of the violation and the statutory

1269

criteria. This decision found on pages 124-130 of the transcript,
with grammatical corrections and some changes where the transcript is
garbled, is set forth below:
The first point that I must decide, obviously, is
whether or not there was a violation as alleged. In looking at this, I tend to agree with Mr. Richardson, but don't
go as far as he goes. Most of this can be reconciled
between the testimony of Mr. Owens and the inspector, with
the exception of Mr. Owens' testimony that he was there.
Now, I don't know how I can reconcile that; tbe testimony
just differs. [While] Mr. Tipton did say it was to the best
of his knowledge, it was possible that he at the moment was
not aware of the presence of Mr. Owens. In any event, as I
see it, I just think the problem here is that we are looking
at a sketch that's not to scale, so it puts everything out
of proportion. [See Exhibit G-3.] If we could see this as
it really was, with that to scale, with the actual feet
there, and the roof bolter, the size of the roof bolter, how
it went in that entry and how far it would extend out, and
so forth, I __ think I would get a much different perspective.
That's the kind of perspective I want to try to elaborate on
here, and it will be the basis for my decision. The basis
for it_, of course, is the area of unsupported roof. I think
it is admitted that's not to scale and surely was smaller
than this, and therefore, nearer the right rib.
The testimony certainly is [not] conflicting on a number
of points; that is, that a bolt was being -installed. There
was a bolt being installed; there were no jacks set. The
witnesses agree on that. The-jacks were laying down,
located away from the face. There is some real difference
as to where exactly they were located, but they were not set.
It could have been that those jacks were originally set ~t
that face possibly across or maybe just on the left side,
I don't know. They could have been set -- that's one possibility -- and then removed because of the plan to come in
there and to drill an additional.hole in that unsupported
roof. But I don't look at the allegation that narrowly. It
said safety posts were not installed. I look upon that as
being not set then, with miners working under unsupported
roof. There was no disagreement there was some unsupported
roof. And if there are miners working in there, the plan,
as I understand it, would have required those [jacks] to be
set and not only to be set but to remain there, until -that is, as long as somebody was working in that area.
Now, we come to the second [point], and there is an
apparent disagreement as to where- that roof bolter was
located and what the bolter was actually doing. And this

1270

.

.

is where the lack of scale really throws us. It is possible
that both men were saying the same thing; that what looked
to the inspector like bolting in that series, might have
been [bolting] the brow, or vice versa. We don't exactly
know what it was, but the inspector did testify in spite of
all that, [that] this polter -- and this is the important
thing -- was working there in nonsupported roof, where the
jacks were not located; that is, not set where they should
have been set. That they had been there originally, I don't
think is too material. If the roof bolter was working there
and bolting a brow and was still close up to.that unsupported
roof, it was, as I would construe it, a violation of that
plan, which requires those jacks to be installed. Furthermore, [they are] to remain there in sequence as I read the
plan, until the permanent supports are put in.
I grant you there possibly could be some variation for
this additional bolting that was contemplated, but it
certainly wouldn't permit a roof bolter to work in there.
So, weighing all the testimony and attempting as I can to
reconcile the two different witr.esses who testified, I
simply find that there was a bolting taking place without
the jacks being in place at the time and lea~ing a miner in
nonsupported roof. This, I think is in violation of the
plan, and therefore, in violation of 30 CFR 75.200.
That leads me to the assessment of the penalty and
various criteria which I must find on that. The first item,
of course, is the history and the print-out does show [prior]
citations or notices, starting in 1976 and up through March
of 1978, six prior violations of 30 CFR 75.200. These could
be, of course, any kind of a roof violation, not necessarily
the failure to set the posts. It does show some history,
however, and I will take that into account. The company,
based on the testimony, is a small company, producing
400 tons daily and employing twenty-eight men. There is no
evidence on the effect of the operator's ability to continue
in business, based on the penalty to be assessed. So, I
need not take that into account.· There was no evidence that
I recall of good faith efforts to achieve rapid compliance.
I will find -- well, I.will just leave that then as a neutral
or a criteria on which there's no particular evidence to take
into account.
That leaves the seriousness, as well as the negligence.
But insofar as the seriousness is concerned, this does constitute a roof violation. And I believe it. is practically
self-evident that a failure to follow that plan, and
particularly working under nonsupported roof, is a serious
violation and I find it to be serious.

1271

The negligence -- on this counsel for the Government has asked me to find ordinary negligence -- I think
there is some negligence in the sense that the mine foreman and the section foreman were there and were aware or
should have been aware of what was going on. There is a
difficulty, though, and it may be that there was good faith
involved in what you could describe as [an] unusual or different situation and they were attempting to adjust it;
namely, a portion of the roof that was, that was scaling, I
guess, was the term, or falling and had to be bolted or
blasted out. So in connection with that deviation, you
might say, from the plan, they were not actually following
it strictly, but had left an area of roof unsupported. I
find some negligence at least, if not ordinary negligence.
So, I believe that completes then, all of the criteria.
(Tr. 124-130).
The Government had previously asked for $1,000.00 for
this alleged violation which I found to be a violation. I
think this amount, in the circumstances as revealed here in
the course of this hearing now, is somewhat high. In
reviewing the amounts assessed for the previous citations
of roof control, they are considerably lower, and the
highest being $150.00 payment. I recognize, though, that
we are dealing now with a history and in that context I
believe that a somewhat higher assessment is justified.
So, I would add another $100.00 to that, making the
assessment for this violation $250.00.
I hereby AFFIRM the above decision. It is ORDERED that Respondent pay the sum of $250 for the violation in NORT 79-57-P within
?O days of the date of the issuance of this decision.

c_/;14(/~, I,~
Franklin P. Michels
Administrative Law Judge
Distribution:
Leo McGinn, Esq., MSHA Trials Branch, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203
Robert M. Richardson, Esq. , and Peter Richardson, Esq. ,
'Richardson, Kemper, Hancock & Davis, 602 Law & Commerce Bldg.,
Bluefield, WV 24701 (Certified Mail)

1272

FEDERAL MINE SAFETY ANO t'1EAlTH R~ViEW COMMiSSION
OFFICE OF ADMINISTRATIVE Lf,W JUDGES·
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

AU ti ·~ i.) ~979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. DENV 78-565-P
A.c. No. 24-00108-02004V

v.
Big Sky Surface Mine
PEABODY COAL COMPANY,
Respondent
DECISION DISMISSING PROCEEDING FOR FAILURE TO PROSECUTE
Petitioner, on July 23, 1979, filed a motion to vacate the
citation anci withdraw the petition for assessment of civil penalty,
stating: "There is insufficient evidence to establish a violation
of the aforesaid mandatory standard [30 CFR 77.701] as the only witness who can testify as to the alleged violation is unavailable to
testify at the hearing as scheduled." ]j
No written response to such motion was filed by Respondent,
although Respondent indicated at the phone conference that it would
have no objection.
This matter was first scheduled.for hearing on April 6, 1979,
by Judge Malcolm P. Littlefield and thereafter rescheduled and continued twice. Finally, after assignment to the undersigned, it was
".!_/

The full text of the motion is as follows:
"Now comes the Secretary of Labor, by his undersigned counsel,
and moves the Commission, pursuant to 29 CFR 2700.15, Interim Rules
of the Federal Mine Safety and Health Review Commission, to vacate
the citation issued and withdraw his petition for assessment of civil
money penalty, and states the following grounds in support thereof:
"l. On January 5, 1978, Notice No. 6. . .JWO was issued to Respondent for an alleged violation of 30 CFR 701 of Part 77.
"2. On March 15, 1978, the Federal -Mine Safety and Health Administration, Office of Assessments, assessed a penalty in the amount of
$1,000.00 for the aforesaid alleged violation.
"3. There is insufficient evidence to establish a violation of
the aforesaid mandatory standard as the only witness who can testify
as to the condition of the alleged violation is unavailable to tes- ·
tify at the hearing as scheduled."

1273

set for hearing on July 24, 1979. The parties were orally notified
of this rescheduling on June 28, 1979, and the notice was issued on
June 29. A subsequent request by Respondent, Peabody Coal Company,
for a continuance was denied.
Thereafter, on the morning of Thursday, July 19, 1979, only a
few days before the· hearing scheduled for Tuesday, July 24, Mr. Jerry
Atencio, speaking on behalf of the Denver Solicitor's Office, telephoned to advise my law clerk that the citation involved in this proceeding was going to be vacated by MSHA. Upon being informed of this
proposed action, at my direction, my clerk telephoned Mr. Atencio to
advise him to contact Respondent to determine if there was an objection to the proposed action; and, if there was no objection, to file
a motion requesting approval for the vacation and listing grounds for
the actidn. Since the scheduled hearing date of July 24 was imminent,
Mr. Atencio was directed that such motion be filed in an expedited manner. The use of a teletype machine or Federal Express was suggested.
Late in the day on July 19, Mr. Atencio telephoned 'and advised
my law clerk of the following: (1) MSHA would not make an appearance
at the scheduled hearing; (2) messages had been left at the operator's
attorney's office advising him of the proposed action, but no personal
telephone contact had been made with that party's attorney; (3) the
Solicitor's Denver Office does not have a teletype machine and he
interpreted the Commission's Interim Procedural Rules not to require
that any motions be filed by expedited means such as Federal Express;
and (4) the grounds for the vacation would be the unavailability of
MSHA's witness and that the Solicitor had determined that there was
insufficient evidence to support the citation.
The following day, Friday, July 20, after i't was determined that
the operator had not been informed of the proposal to vacate, a telephone conference was arranged. Mr. Thomas Gallagher, counsel for the
operator and Mr. Atencio were advised that morning oL the conference.
However, when the conference was held, since Mr. AtencLo was not then
available, the Solicitor was represented by Mr. Thomas Korson.
Mr, Korson stated, upon questioning by the Presiding Judge, that
the citation was to be vacated for no specific reason, but that it was
not for any reason of scheduling. Since this informatio.n was different
from that which Mr. Atencio had provided the night before, the Presiding Judge further inquired specifically if the vacation had anything
to do with the unavailability of a witness. Mr. Korson again affirmed
that it had nothing to do with a witness or the scheduling. When
invited to state why the matter was being vacated, Mr. Korson replied
that no reasons would be given and that it was the prosecutor's privilege to vacate in his own discretion. Mr. Gallagher, speaking for the
Respondent, advised that he would not oppose the vacating of the citation. With that understanding, the Presiding Judge stated that upon
receipt of the motion and the Respondent's answer, the proceeding
would be dismissed.

1274

Thereafter, on July 23, 1979, the Petitioner filed its motion to
vacate and withdraw, quoted above.
On August 6, 1979, I issued an order for the Petitioner to show
cause why the pro·ceeding should not be dismissed for failure to
prosecute. As pointed out in such order, it was obvious that the
representations made by the Solicitor's representative to the Presiding Judge at the phone conference were completely at odds with the
statements made in the motion to vacate and to withdraw. At the conference, I was told that the withdrawal was not due to the scheduling,
while the motion to withdraw explicitly states that the reason was the
insufficiency of evidence, as the only witness who could testify was
unavailable' for the hearing as scheduled.
The situation, as viewed at that time, was summarized in the show
cause order as follows:
The Petitioner had ample opportunity to file with the
court a motion for continuance if it, in fact, had a serious
problem of witness availability. It confined its contacts
wholly to oral communication with my law clerk, and, in fact,
did not raise this matter except orally at almost the very
last moment. I arranged for a prehearing conference for the
express purpose of determining whether there might be a problem because of the scheduling. As indicated, I was told
affirmatively, at least twice, there was no such problem.
In these circumstances, I believe that the Solicitor or his
representative not only misrepresented the situation to the
Presiding Judge, but otherwise engaged in such mishandling
and lack of interest in prosecuting this case that it
appears it should be dimissed for a failure to prosecute.
Petitioner's response, filed August 13, 1979, is quoted in full
below:
NOW COMES the Secretary of Labor, by his undersigned
counsel and responds to the Order to Show Cause entered in
the above entitled case on August 6, 1979.
1. The chronology of the July 19, 1979 discussions
does not fully and clearly set forth the substance of conversations had between Mr. Atencio and Judge Michels' law
clerk that the Secretary of Labor would be filing a motion
to vacate the citation and withdraw his petition for assessment of civil money penalty. The basis for the aforesaid
motion, as stated to the law clerk, was insufficiency of
evidence due to the unavailability of the Secretary's only
witness. Mr. Atencio informed Judge Michels' law clerk
that the unavailability of the witness was of· a permanent
nature. Judge Michels' law clerk inquired of Mr. Atencio

1275

whether the operator had approved of the Secretary's proposed motion. Mr. Atencio informed the law clerk that the
Secretary had not sought such approval prior to filing, as
he believed the determination to file such a motion to lie
with the Secretary, Mr. Atencio informed the law clerk that
attempts had been made to contact Thomas Gallagher, attorney
for the respondent but were to.no avail; that Mr. Atencio
contacted respondent's counsel's office in De.nver, Colorado
and was informed all the respondent's attorneys were unavailable. Mr. Atencio left a message with the aforesaid off ice
of the Secretary's filing of his motion and r~uested respondent's counsel to return the call if there were any questions and for respondent to similarly file its objections,
if any. At this juncture the law clerk stated the Secretary
must file his motion by July 20, 1979, and should have it
served either by having it teletyped, delivered by Federal
Express, or hand delivered by the Washington, D.C. Office
of the Solicitor. At this time Mr. Atencio informed the law
clerk that he would discuss this with the Associate Regional
Solicitor. In a second conversation with Judge Michels' law
clerk, Mr. Atencio informed him that the aforesaid motion
would be filed in accordance with 29 C.F.R. § 2700.12, by
first class mail; that another attempt to contact respondent's Denver counsel had been made to attempt to inform him
of the Secretary's motion; and that the Office of the Solicitor was unwilling to expend the funds to dispatch an attorney
to the hearing scheduled on July 24, 1979, in light of the
fact that the only witness was not available and thus there
was no evidence to support prosecution of this action. On
Thursday afternoon Mr. Atencio received a call from an
attorney (other than Mr. Gallagher or Mr. Linn) in respondent 1 s Denver office acknowledging receipt of Mr. Atencio's
earlier advice that the motion to vacate had been filed and
informing him that respondent had no objection.
2. In the morning of July 20, 1979, Mr. Atencio
received a call from Judge Michels' law clerk inquiring
whether Mr. Atencio would be available for a conference
call with Judge Michels and Mr. Thomas Gallagher, sometime
in the afternoon of the same date. No specific time could
be arranged for the conference call at this time due to the
fact that it was unknown when Mr. Gallagher would be available. Mr. Atencio informed the law clerk at that time that
he (Mr. Atencio) would be in the office during the afternoon. The conference call was placed when Mr. Atencio was
on his lunch hour.
3. On July 20, 1979, Mr. Korson was aware that the
Judge's secretary had been attempting to arrange a conference call with Mr. Atencio and counsel for the operator.

1276

Orte of our secretaries informed him (Mr. Korson) (during
the temporary absence of Mr. Atencio) that the Judge wished
to schedule a conference call. Since Mr. Atencio was not
available Mr. Korson assumed that Mr. Atencio would be
available at a particular time of day, and he told the secretary to inform the Judge's secretary that the call could
be scheduled later in the day at a time when Mr. Atencio
would be available. Unfortunately, Mr. Atencio was not
available at the time that Mr. Korson had indicated. Under
the circumstances, he substituted for Mr. Atencio. In doing
so, he was trying to accommodate the Judge. He was not
fully informed of the underlying facts, and perhaps should
not have spoken for the Secretary in this matter, for that
reason.
4. The aforesaid response and the Order to Show Cause
clearly indicate there was a misunderstanding in that the
Secretary's burden in establishing his case at any hearing would depend on the testimony of one witness who was
unavailable and would continue to be unavailable. The
unavailability of this witness was not for any reason of
scheduling; otherwise the Secretary would have filed a
motion to postpone the hearing for a date certain, had the
availability of this witness been related to a scheduling
problem.
5. Based on the aforementioned grounds, the Secretary
·respectfully submits his motion be granted, as there is no
evidence on the record of any lack of interest or diligence
in his prosecuting this matter.
The response has not only failed to clarify matters, it has added
further confusion. In the prehearing conference, the Presiding Judge
was told one thing,.!.•!:_•, that the withdrawal was not caused by the
scheduling; in the motion to withdraw another, i.e., that it was
·caused by the scheduling; and finally, in response to the show cause
order, the Presiding Judge was told both things. In his response, the
Solicitor claims now that the witness is unavailable and will continue
to be unavailable and, thus, there is ·no evidence to support prosecution of the action. This expressly contradicts his earlier formal
motion which states that the witness "is unavailable to testify at
the hearing as scheduled." Yet, the Solicitor in his response
.requests that such motion be granted. He has not corrected, withdrawn or explained the reason for the statement in his motion; he
simply reaffirms his request that the Judge grant it. Clearly, the
motion cannot be granted as it stands, because it states the petition
is withdrawn for the reason of scheduling, whereas that is expressly
contradicted by other statements made by the Solicitor.
This contradiction is not a minor matter. If the petition is
withdrawn because of the insufficiency of proof due to the perma.nent

1277

unavailability of a witness, it is a matter over which the Presiding
Judge has little, if any, control. If, however, the withdrawal is
due to the unavailability of a witness at a hearing as scheduled and
that witness would be otherwise available, then it is a matter over
which the Judge has some control and responsibility. In his discretion, he may decide to grant the motion based on all the circumstances, or he might attempt to reschedule the hearing. If the Judge
is misinformed as to the actual reason for the withdrawal, he is
deprived of the opportunity to exercise his function in ~eciding the
issue.
The Solicitor states in his response to the show cause order
that the unavailability of the witness was not for any reason of
scheduling and that the witness was unavailable and would continue
to be unavailable. If this is true, then there is more than a mere
misunderstanding. The motion to vacate and withdraw could not be
more explicit, stating that the witness could not appear at the hearing as scheduled. That statement has not been withdr~wn or corrected.
The Presiding Judge has given the Solicitor every opportunity to
clarify his position, first, by a phone call conference, and later by
means of an order to show cause. All efforts have resulted in failure.
The outcome has been nothing more than the submission of contradictory
and obfuscatory statements.
In these circumstances, I can say with all honesty that I do not
know which of the Solicitor's assertions to believe. There are too
many areas creating doubt. For instance, if the reason. for withdrawal
is, in fact, the insufficiency of evidence, why did Mr. Atencio file
a motion stating that the reason was the unavailability of a witness
to testify at the hearing as scheduled? Mr. Korson appeared to know
that scheduling was not the reason for withdrawal, though strangely and
. inexplicably, the Solicitor now claims he was not fully informed. If
Mr. Atencio, in filing his motion, meant that the witness was permanently unavailable, why has not he· corrected the record, or at least
explained why he stated something different? Was the phrasing in the
motion, in fact, deliberate with an intent to deceive? Furthermore,
because no reason or even a hint of a reason was given for the
asserted "unavailability" or the "permanent unavailability" of the
witness, there is no basis in the record for determining the accuracy
of such representations.
It should be clear that with the record in the state as described
above, there is no way that I could grant the motion to vacate and
withdraw for the reason stated therein. In my order to show c·ause, I
indicated that I believed the Solicitor or his representative not only
misrepresented the situation to the jresiding Judge, but otherwis~
engaged in such mishandling and lack of interest in prosecuting this
case, that it should be dismissed for a failure to prosecute. Nothing
in the response has dissuaded me from that view; rather, I am now
fully confirmed in it. Accordingly,

1278

This proceeding is hereby DISMISSED for failure of prosecution.

c:&l41A~
R ~M
Franklin P. Michels
Administrative Law Judge
Distribution:
Jerry R. Atencio, Donald R. McCoy, Thomas Korson, Esqs., Office
of the Solicitor, U.S. Department of Labor, 1961 Stout Street,
Room 1595, Denver, CO 80294 (Certified Mail)
Thomas. Gallagher, Esq., Peabody Coal Compady, P.O. Box 235,
St. Louis, MO 63166 (Certified Mail)

1279

IFEDE~Al MINE SAFETY AND HEALT~

REVUEW COMMISSION

OFFICE OF ADMINISTRATiVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

"I

'i'.'
,fl\UC"

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

':·

·

.

15'KI
• IP

'.

,

Civil Penalty Proceeding
Docket No. PITT 77-50-P
A.C. No. 36-00840-02004 F
Cambria Slope No. 33 Mine

BETHLEHEM MINES CORPORATION,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
T. W. Ehrke, Esq., Bethlehem Mines Corporation,
Bethlehem, Pennsylva.::-:.ia, for Respondent.

Before:

Judge Charles C. Moore, Jr.

On April 16, 1976, Denton R. Bodenschatz, a shuttle car operator for Bethlehem Mines Corporation, was killed in the No. 5 air
course of the 3 Right 6 South section of the Cambria Slope No. 33 Mine
in Cambria County, Pennsylvania. The decedent who was operating the
No. 50 shuttle car immediately prior to the accident, was in the process of hauling coal to the conveyor belt tail when the said shuttle
car became stuck. Then, for a reason that remains unknown, the shuttle
car lurched forward causing the decedent, who had partially moved out
from under the protection of the canopy, to be squeezed between the
belt tail jack and the shuttle car frame.
Inimediately following the accident, the Mining Enforcement and
Safety Administration of the Department of the Interior (hereinafter
referred to as MESA), 1/ initiated.an investigation. As a result of
the investigation, MESA issued citations and on August 24, 1977, filed
a petition for assessment of a civil penalty in accordance with section 109(a) of the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 819(a). !:./
};_/ As of March 9, 1978, by operation of law the Mining Enforcement
and Safety Administration was transferred to the Department of Labor
where it became the Mine Safety and Health Administration.
2/ The corresponding section under the Federal Mine Safety and
Health Act of 1977, P.L. 95-164, 91 Stat. 1290, is section llO(a).

1280

The Respondent filed an answer on September 15, 1977, denying
the violation alleged in the .petition for assessment of civil penalty. A hearing on the merits was held in Ebensburg, Pennsylvania,
on January 23 and 24, 1979.
Notice of Violation No. 1 CMB, April 19, 1976
The notice of violation, which bears the closest·relation to the
fatality, alleges a violation of 30 CFR 75.1725(a). It states:
The standard shuttle car, Joy 21SC Serial # ET11903,
in the 3 Rt. 6 South Section (056) was not maintained in a
safe operating condition, in that coal was permitted to
accumulate around the tram lever and control linkage and
the machine was not taken out of service to completely
correct the condition. This violation was observed during an investigation of a fatality and was a contributing
factor in the fatality.
Section 75.1725(a) of Title 30, Code of Federal Regulations
states: "Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machtnery or equipment
in unsafe condition shall be removed from service immediately."
Government Exhibit 2 contains the following decription:
DESCRIPTION OF ACCIDENT
On Friday, April 16, 1976, the crew for 3 right
6 south section entered the mine at about 7:55 a.m. and
arrived in the face area approximately 25 minutes later.
Robert Wolfe, section foreman, made an examination of the
section. Owen D. Croyle, roof-bolter helper, had been
assigned to operate the standard shuttle car this shift
because the regular operator was absent. He first had to
clean an accumulation of loose coal 12 to 18 inches deep
which had been left by the previous shift from the operator 1 s cab of the standard shuttle car. Denton R.
Bodenschatz, shuttle-car pperator, began cleaning loose
coal which had been left by the previous shift from around
the belt tail while William Perkins, miner helper, and
Andrew Orlovsky, miner operator, pulled down loose ribs.
After Wolfe completed the examination of the section, production activities began as Orlovsky used the continuous
miner to push spilled runway coal into the pillar split of
the pillar between Nos. 6 and 7 air courses. One car of
coal was loaded and dumped. When the second shuttle car
of coal was hauled to the belt tail, Croyle had difficulty
positioning the shuttle car to dump because of coal spillage. While maneuvering the shuttle car, it became stuck

1281

near the inby corner of the intersection. Bodenschatz,
who had been cleaning coal spillage at the belt tail with
Michael Korinchak, roof bolter, attempted to free the
shuttle car but was unsuccessful. It was necessary to use
the continuous miner to pull it free. Bodenschatz then
volunteered to haul a load since Croyle had been having
trouble. When he arrived at the face, he had difficulty in
positioning the shuttle car under the tail of the continuous miner because the tram control was sticking. He and
Perkins cleaned the cab out and found that the helper
spring on the forward tram pedal had very little tension on
it. They repositioned the spring in another hole which
provided more tension. Bodenschatz tried the pedal several
times and commented that it was working all right. The
shuttle car was loaded, and he drove it toward the belt
tail to dump the load. As he approached the.corner of the
intersection of No. 5 entry, the operator's side of the
shuttle car was too close to the rib and the top of the
canopy began to wedge against the roof. Wolfe, who was
behind the check curtain assisting William Clarke., mechanic,
with repairs to the Kersey tractor, was then informed of
the trouble in trying to position the shuttle car to unload.
Wolfe evaluated the situation and instructed Bodenschatz
to back out and to swing wider. Bodenschatz tried to start
the car but could not do so. He told Croyle, who was standing between the shuttle car and the rib, that the shuttle
car would not st.art. Croyle noticed that the shuttle-car
light was on and he also heard the control circuit contactors close but without the pump motors starting. An
instant later, the shuttle car unexpectedly lunged forward
in the direction opposite to that intended until it struck
the belt tail. As the shuttle car traveled the short distance, Bodenschatz's head was squeezed between the top
frame of the shuttle car and the belt tail jack. Croyle
ran forward and used the panic bar to deenergize the
shuttle car. First-aid materials were obtained and first·
aid care was administered. Bodenschatz was transported to
the intensive care unit at Conemaugh Valley Memorial
Hospital, Johnstown, Pennsylvania. He died at 8:25 p.m.
the same day of a severe head injury.
Petitioner alleges that at the time of the accident, there were
coal accumulations around the control levers which interfered with
the normal operation of the machine (Tr. 199, 200) and Respondent
had knowledge of these accumu~ations. Petitioner introduced Exhibit
Nos. 16 and 17 which depicted the coal and coal dust accumulations
mixed in with the blood of the· victim on the floor of the cab
(Tr .. 22, 28). Although these pictures were taken on April 19, 1976,
3 days after the fatal accident, they allegedly are an .accurate
representation of the floor of the cab immediately following the

1282

accident. Petitioner asserts that these exhibits clearly illustrate
that the blood of the victim fell on the coal, which would imply
that these accumulations were already present at the time of the
accident (Petitioner's Brief, p. 13, Tr. 22, 23, 157, 158).
I find that these pictures (Exh. Nos. 16 and 17) cannot be
accepted as a true and accurate portrayal of the cab of the shuttle
car as it looked immediately following the accident. In the first
place, the two exhibits show the brake pedal in different positions.
Someone moved it before the second picture was taken. Also, Inspector Biesinger testified that the initial invesiigation revealed that
the helper spring was found disconnected following the accident,
whereas Exhibit Nos. 16 and 17 show the helper spring to be connected
(Tr. 127). Mr. Ford, director of safety and environmental health for
Bethlehem, who was one of the first persons to arrive at the scene of
the accident, stated in reference to observing the helper spring in
Exhibit Nos. 16 and 17, "Well, it looks like it's attached, but that's
not what I saw" (Tr. 391). The preceding evidence clearly establishes
that the shuttle car had been tampered with s'ubsequent to the accident
and prior to taking the photographs. Petitioner made no attempt to
explain this discrepancy in its evidence.
It is also noted that Petitioner had some difficulty with determining the exact date when the pictures were taken. The evidence
presented by both parties establishes that the pictures were taken
on April 19, 1976, 3 days after the accident, yet, towards the end
of the hearing, after one of Respondent's witnesses had testified
that the pictures were not taken on April 16, Mr. O'Donnell, after
consulting with one of the inspectors who had previously testified,
proceeded to ask "You heard them testify they did take the pictures
on the 16th?" (Tr. 403).
The evidence also indicates that the MESA inspectors may not have
made their first examination of the cab until April 20, 1976 (Tr. 55). ~/
3/

At page 55 of the transcript, Inspector Biesinger states: "Let
a correction there. I believe it was on April 20 that we
removed the shuttle car and made the first examination of the cab and
control levers." At page 134 of the transcript, he states: "[W)e
found it stuck in the forward position upon examining it on the day of
the accident." At page 175 of the transcript, Inspector Koba states:
"When he did find the shuttle car immediately after the accident, the
tram lever was jammed in the forward position which would make it tram
towards the tailpiece. 11 The only definite conclusion I can make from
this testimony is that at some time between April 16, the day of the
accident, and April 20, the inspectors found the tram lever jammed in
the forward position, although according to Inspector Biesinger, that
tram lever was merely in a full throttle position because he was of
the opinion that t~e forward and reverse tram switch was in another
part of the cab.

~e make

1283

If so, that was even after the pictures (Govt. Exh. Nos. 16 and 17)
were taken and I have already rejected them as accurate depictions
of the accident scene. Respondent's witness, Mr. Ford, however, had
observed the cab of the shuttle car on April 16, 1976, shortly after
the fatal accident. Mr. Ford and two other management personnel were
the first persons to arrive at the scene of the accident during the
initial investigation. Mr. Ford testified that he observed a large
pool of blood, approximately 15 to 17 inches in diameter, on the deck
of the shuttle car (Tr. 378). He observed that the deck did not contain one handful of dirt (Tr. 378). In response to Government Exhibit
Nos. 16 and 17, Mr. Ford stated, "Without a dou.bt that is not the condition I observed. This definitely shows coal all around the place.
Whenever I looked at it, why, hey, it was perfectly clean'; (Tr. 381).
Mr. Ford explained that immediately after he had observed the
shuttle car, all investigative personnel were ordered out of the acci
dent area so that additional roof support could be installed (Tr. 400)
He estimated that a MESA inspector could not have examined the cab for
at least 1-1/2 hours while the roof support was being installed (Tr.
401). He speculated that coal may have been spilled into the cab
during the installation of roof supports.
Petitioner does not refute the fact that Mr. Ford examined the
shuttle car at least 1-1/2 hours before the MESA investigation team.
I use the phrase "at least" because of the sworn testimony that the
inspectors first examined the cab 4 days after the accident on
April 20. Petitioner·' s only explanation as to why Mr. Ford observed
a clean cab was that the witness was upset and therefore he imagined
the cab was clean (Petitioner's Brief, p. 13).
I accept Mr. Ford's testimony and find that the shuttle car was,
in fact, clean immediately after the accident. It should also be
noted that the cab of the shuttle car was cleaned immediately before
it was loaded at the face and during the same run in which the fatal
accident occurred (Govt. Exh. No. 2, p.· 5, Tr. 52). If the tram pedal
was stuck at the time of the accident, it was not because of accumulations of coal and coal dust in the cab .of the shuttle car.
The Petitioner alleges that the operator should have known that
the helper spring was malfunctioning. (See Continuation Sheet No. 3
of Govt. Exh. No. 7.) The helper spring is not the principal means of
returning the tram pedal to the neutral position. The pedal is otherwise spring-loaded to return to the neutral position and the helper
spring is attached so as to assist the other spring in returning the
tram to neutral. The operator's foot works against both the main
spring and the helper spring when he trams the shuttle car. The Petitioner. argues that Bethlehem personnel had knowledge of the defective
helper spring because "the time of the accident was not the first time
this spring had detached so Bethlehem personnel .had been warned before
the accident and knew that the helper spring was stretched." (See
Pet;tioner's Brief, p. 10.).
~-

1284

The evidence does not establish that the operator had any knowledge concerning the defective helper spring. On the contrary, the
evidence establishes that only the decedent, Denton R. Bodenschatz,
and the miner helper, William Perkins, were aware of the difficulty
with the helper spring (Govt. Exh. No. 2, p. 5, Tr. 29, 30, 86, 87) •. 4/
When Inspector Biesinger was asked whether Mr. Perkins had informed
either the mechanic or the section foreman that the spring had been
repositioned, he responded, "I don't recall" (Tr. 134). Mr. Perkins
was not called as a witness. Furthermore, Robert Wolfe, who was the
section foreman at the time of the accident, testified that at no time
during his shift, up to the time of the accident, was he advised of
any problems with the shuttle car (Tr. 352). ·
As to the tram pedal, Petitioner asserts that Respondent knew or
should have known that it was sticking. At the time the shuttle car
was examined, whether on the 16th or 20th, the tram lever was found
in the forward position, the opposite direction the decedent intended
to travel (Govt. Exh. No. 2, p. 6). It was thus concluded by MESA
investigators that the tram lever was stuck in this position at the
time of the accident.
Petitioner had two inspectors testify about the alleged sticking
tram pedal. Their testimony concerning the location of the tram pedal
on the machine and the operation of the machine was inconsistent.
Inspector Biesinger repeatedly testified that the left foot pedal
operates the brake and the right foot pedal operates the tram pedal
(Tr. 27, 125, 159). He also testified that there was a switch on the
control panel that had to be turned to the forward or reverse position
before one could go backwards or forwards in the shuttle car (Tr. 27,
34, 69, 150). Conversely, Inspector Koba indicated that the tram
lever is always on the left side and the brake lever is on the right
(Tr. 169, 170, 191-193). He also testified that the directional control switch is connected to the tram pedal and the switch is automatically activated upon depressing the tram pedal (Tr. 168-172, 192,
194). Inspector Koba destroys his own credibility, however, when he
states in reference to the brake and tram pedals, "Whether it was the
right or left foot, I don't--! could be wrong on that. But the tramming· lever was the one that was connected to the control switch"
(Tr. 194).
The testimony of.the two inspectors that 'they found the tram
control was stuck in the forward position is rendered somewhat less
than convincing by the fact that neither was sure which pedal was
the tram control. But assuming that the tram lever was, in fact,
stuck at the time of the accident investigation, the evidence does
not establish conclusively that it was stuck at the time of the
accident.
4/ Andrew Orlovsky may have also been aware of it (Tr. 36), but he
was not called as a witness~

1285

There is no way of actually knowing whether the tram lever was
stuck in the forward position at the time of the accident (Tr. 134).
It must be remembered that the decedent had difficulty in starting
the shuttle car, and although it is obvious that his head must have
been out from und~r the canopy in order for him to have been injured
as he was, there is no evidence as to the position of the rest of his
body at the time of the accident. This is understandable because the
only light available was from a miner's cap lamp and unless one of the
witnesses was shining his lamp directly at the .decedent, he would have
no way of knowing his position. But there is the possibility that the
decedent's foot was on the forward tram lever and that the lever did
not become stuck in that position until the shuttle car crashed into
the tailpiece. I am accepting as a fact, despite the discrepancies in
the evidence, that after the accident the tram lever was found stuck
in the forward position. While I think it is unlikely that
Mr. Bodenschatz kept his foot on the tram lever until the collision
with the tailpiece, I cannot find as a fact that the accident did not
happen that way. I think it is more likely that the tram pedal was
stuck in the forward position immediately prior to the accident and
that the decedent somehow managed to start the shuttle car while the
tram pedal was stuck in that position. But again, the evidence is not
sufficiently convincing for me to find as a fact that that was the way
the accident happened. Assuming it did happen that way, however, in
order to prevail, the Government must show that Respondent knew or
should have known of the malfunctioning equipment.
Hearsay evidence does indicate that the tram pedal had been stuck
on several prior occasions (Tr. 60, 61). Inspector Biesinger testified-that management, upon being notified of the problem with the tram
lever, did not exercise reasonable care in alleviating the problem
(Tr. 112-114). Inspector Koba testified that the condition (the sticking tram lever) existed for quite a length of time, and when it was
reported, the foreman did not act expeditiously (Tr. 201). Inspector
Bernazzoli was of the opinion that the machine should have been taken
out of service the first time the tram lever had been reported sticking (Tr. 225) •
Nowhere does Petitioner establish one concrete example where management, upon being informed of the tram lever problem, did not take
corrective action. In fact, the evidence points to the opposite conclusion. Joe Stauski, se~tion foreman of the shift preceding the
accident, testified that he observed the shuttle car being greased and
cleaned quite a few times during his shift (Tr. 305). Lynn Baum, section foreman on a different shift testified that upon being informed
of a problem with the tram pedal, he had the mechanic and the shuttle
car operator clean and grease around the pedals (Tr. 372). Robert
Wolfe, the section foreman of the shift on which the fatal accident
occurred, testified that he was not aware of any problems with the
operation of the shuttle car during the shift (Tr. 343, 352, 353).

1286

The testimony of the MESA investigators indicates that the operator had inadequately repaired the tram lever. Yet, there is no evidence presented by Petitioner revealing what action shoutd have been
taken by the operator, other than cleaning and greasing the pedals,
to adequately repair the sticking pedal (Tr. 231). In fact, in the
abatement notice, MESA condoned the greasing of the tram control
levers as the appropriate method of repair. (See Govt. Exh. No. 8,
Continuation Sheet No. 3.) I find no violationof 30 CFR 1725(a).
Section 104(b) Notice of Violation No. 3 CHB, April 19, 1976
The 104(b) notice of violation which alleges a violation of
30 CFR 75.400 states:
Loose coal and coal dust was permitted to accumulate
from 3 to 8 inches thick for a distance of approximately
30 feet from tailpiece inby, on the shuttle car travelway where the accident occurred in the No. 5 entry of
the 3 Rt. off the 6 South Section (056). This was a
contributing factor to the fatality.
Section 75.400 of the Code of Federal Regulations states:
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.
In accordance with the holding of Old Ben Coal Company, 8 IBMA
98 (1977), it is necessary for the Petitioner not only to prove that
an accumulation existed, but also to submit evidence as to the
inspector's determination, prior to issuing the citation, as to how
long the accumulation had been present and what cleanup actions were
taken, if any, upon discovery of the ac~umulation by the operator.
The evidence does establish that accumulations existed as
described in 104(b) Notice of Violation No. 3 CMB, Government Exhibit
No. 9 (hereinafter referred to as accumulation No. 1) (Tr. 76, 152,
234-235); Modification Sheet No. 2 CMB, Government Exhibit No. 10
(hereinafter referred to as accumulation No. 2) (Tr. 236-237); and
Continuation Sheet No. 2 attached to Notice of Violation No. 3 CMB.
(This sheet describes two separate accumulations. They shall hereinafter be described as accumulation No. 3 and accumulation No. 4)
(Tr. 241, 242). Yet, only for accumulation Nos. 1, 3 and 4 does the
evidence establish that the inspector, prior to issuing his citation,
made a determination as to how long the accumulations had been present (Tr, 243, 245). Furthermore, the evidence reveals that only for
accumulation No. 1 was there a determination by the inspector, prior
to issuing his notice, as to what actions the operator took upon discovery of the accumulation. The evidence indicates that the decedent

1287

had begun cleaning loose coal from around the belt tail (Tr. 75, Govt.
Exh. No. 2, p. 5). In light of the preceding, I find that Petitioner
has established a prima facie case for a violation of section 75.400
only for accumulation No. 1.
It should be noted that Mr. Carpinello, Bethlehem's general mine
foreman, did not refute the fact that accumulation No. 1 had not been
cleaned up (Tr. 281). He indicated that he felt the determination of
an accumulation was a judgment call (Tr. 282). He and one of the section foremen were of the opinion, however, that the accumulation could
not have been present for six shifts because the area had been
shoveled the day before and it was cleaned every shift (Tr. 316, 317,
355). He also testified that the belt tail area had taken only 20 to
30 minutes to clean up (Tr. 325). There was a cleanup program in
effect at the time of the accident (Respondent's Exh. C, Tr. 270).
Petitioner also alleged that the loose coal on the mine floor in
the area of the belt tail (accumulation No. 1) was a contributing factor to the accident in that it made it difficult to maneuver the
shuttle car properly. There is no convincing evidence which substantiates this allegation. In fact, the description of the accident
in th~ accident report does not make any reference to the decedent
having any difficulty maneuvering the shuttle car as a result of coal
accumulations (Govt. Exh. No. 2, p. 5). I do not find a connection
between the accumulation and the accident, but I do find a violation.
I find that the operator is large in size, abated the violation
promptly and in good faith, the penalty assessed herein will not
affect its ability to continue in business, and the operator has a
significant history of violations.
I find there is negligence in that the operator, who had knowledge of the accumulation, failed to clean it up (Tr. 281).
I find this to be a serious violation in that the potential for
an explosion was increased because of the excessive amounts of methane
liberated in the mine (Tr. 291). The relevant section of the mine was
dry (Tr. 247) and the cables in the area could have provided an ignition source (Tr. 80, 81, 153). A penalty of $1,000 will be'assessed.
Section 104(b) Notice of Violation No. 1 CMB, May 26, 1976
The 104(b) notice of violation which alleges a violation of
30 CFR 75.304 states:
Evidence observed and revealed during an investigation of a fatal accident that occurred in the 3 Right
6 South section (056) on 4/16/76 was substantial to support that a proper on shift examination of the working
section was not made for at least 6 shifts preceding the

1288

accident in that the following conditions were cited and
observed; the roof wa·s inadequately supported and accumulations of loose coal and coal dust were present in the
active shuttle-car roadway, also, the tail of the belt
(shuttle car dumping point) was installed in a hazardous
location and in a hazardous manner.
Section 75.304 of the Code of Federal Regulations states:
At least once during each coal-producing shift, or
more often if necessary for safety, each ~orking section
shall· be examined for hazardous conditions by certified
persons designated by the operator to do so. Any such
conditions shall be corrected innnediately. If such condition creates an innninent danger, the operator shall
withdraw all persons from the area affected by such conditions to a safe area, except 'those persons referred to
in section 104(d) of the Act, until the danger is abated.
Such examination shall include tests for methane with a
means ·approved by the Secretary for detecting methane
~nd for oxygen deficiency with a permissible flame
safety lamp or other means approved by the Secretary.
This 104(b) notice of violation was issued on May 26, 1976, and
was precipitated by a fatal accident which occurred on April 16, 1976.
The accident investigation was completed on April 21, 1976. (See
Government Exhibit No. 2.) This means that the notice of violation
was issued 40 days after the occurrence of the fatal accident and
35 days after the completion of the accident investigation. I am of
the opinion that the issuance of a citation 35 days after the completion of the accident investigation, without good cause, is an unreasonable delay in informing Respondent of the allegations lodged
against it. On its face, the notice of violation indicates that it
was issued because of the presence of improperly supported roof, accumulations of loose coal and coal dust, and because the tail belt was
installed in a haphazard .location and manner. From reading the
notice, it would appear that the existence of the three conditions
proved that a proper onshift examination had not been made. But the
testimony of Inspector Bernazzoli makes it clear that he issued the
notice because the conditions had not been properly recorded in the
onshift examination book (Tr. 55, line 8, Tr. 52, lines 5-11). It
should also be noted that with respect to two of the items that the
inspector thought should have been noted in the book, no citations
were issued (no citation was issued with respect to the unsupported
roof or the so-called haphazardly-installed tailpiece). But the essential flaw with respect to this notice is that the section cited does
not require the keeping of any records. ~/ The notice is VACATED.

5/ See my decision in MESA v. Hobbs Brothers Coal Company, Inc.,
NORT 74-815-P, p. 6 (March 31, 1975); also see 3Q CFR 75.1802.

1289

Section 104(b) Notice of Violation No. 2 CMB, May 26, 1976
The 104(b) notice of violation which alleges a violation of·
30 CFR 75.303(a) states:
Evidence observed and revealed during an investigation
of a fatal accident that occurred in the 3 Right 6 South
section (056) on 04/16/76 was substantial to support that
a proper pre-shift examination of the working section was
not made for at least 6 shifts preceding the accident in
that the following conditions were observed and cited;
the roof was inadequately suported and accumulations of
loose coal and coal dust were present in the active shuttle
car roadway, also, the tail of the belt (shuttle car dumping point) was installed in a hazardous location and in a
hazardous manner. The pre-shift examiner recorded in the
book that the section was safe for the men to enter.
Section 75.303(a) of Title 30, Code of Federal Regulations,
states, in part:
Within 3 hours inunediately preceding the beginning of
any shift, and before any miner in such shift enters the
active workings of a coal mine, certified persons designated by the operator of the mine shall examine such workings and any other underground area of the mine designated
by the Secretary or his authorized representative. * * *
Each such mine examiner shall also record the results of
his examination with ink or indelible pencil in a book
approved by the Secretary kept for such purpose in an
area on the surface of the mine chosen by the operator to
minimize the danger of destruction by fire or other hazard, and the record shall be open for inspection by
interested persons.
This 104(b) notice of violation, like the prior notice, was
issued 35 days after the completion of the accident investigation.
Again, I am of the opinion that this time period amounts to an
unreasonable delay in informing Respondent of the allegations lodged
against it. Unlike the section involved in the previous violation,
however, 30 CFR 75.303(a)·does require that the results of the examination be recorded in an approved book. In order to find a violation, I would have to decide that the three items listed in the notice
were hazardous conditions. Inasmuch as there was no citation issued
in connection with the installation of the tail belt, I do not see how
I could agree that it was a hazardous situation that should have been
included in the preshift examiner's report. As to the unsupported
roof, while it apparently existed after the accident, I think it safe
to assume that if the inspectors had thought that it had existed for
any significant time, they would have issued a citation in connection

·1290

with that condition. I therefore cannot agree that the preshift examiner ignored the unsupportedroof for six shifts.
Respondent was cited for accumulations of loose coal and coal
dust and I have previously found that accumulations of co~l and coal
dust in this mine are serious. Since, however, it is not the practice
in Respondent's .mine to include coal and coal dust accumulations on a
preshift report, and inasmuch as there is a program wherein one shift
is supposed to clean up whatever coal and coal dust was left by the
prior shift, I cannot find that there was a significant degree of
negligence on the part of the preshift examine~ in failing to include
the condition on the preshift examation report. A penalty of $100
will be assessed.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within
30 days of the entry of this decision, a civil penalty in the amount
of $1, 100.

Charles C. Moore, Jr.
Administrative Law Judge
Issued:
Distribution:
John H. O'Donnell, Esq., MSHA, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Thomas W. Ehrke, Esq., Industrial Relations Attorney-Coal,
Bethlehem Mines Corpor~tion, Room 1871, Martin Tower,
Bethlehem PA 18016 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Departme·nt
of Labor
Standard Distribution

1291

FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES .
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

AUG 3
SECRETARY 0F LABOR,
MINE SAFETY A~D HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No, VINC 78-102-P
No, 21 Mine
Old Ben Coal Company

HUBERT WILLIAMS,
(Section Foreman)
Respondent
DECISION
Appearances:

J, Phillip Smith, Esq., Office of the Solicitor,

u.s.

Department of Labor, for Petitioner;
Charles Widman, Esq., Washington, D,C,, for
Respondent,
Before:

Judge Charles C, Moore Jr,

The above civil penalty proceeding was brought against a section
foreman of the No, 21 Coal Mine in Sesser, Franklin County, Illinois,
operated by Old Ben Coal Company, pursuant to section 109(c) 1/ of
the Federal Coal Mine Health and Safety Act of 1969, The Government
seeks to impose a civil penalty against Respondent who is charged with
knowingly authorizing, ordering, or carrying out a violation of the
roof control plan 30 CFR 75.200, The alleged violation occurred on
November 21, 1977, and a hearing was held on March 6 and 7, 1979, in
Evansville, Indiana.
The relevant sections of the r-oof control plan which MESA alleges
that Respondent failed to comply with state: (Gov. Exh, 6, Part I
P• 5 #4, Part II P• 9 1t3, Tr, Vol. I 126, 129-131),
In the event that less than eight (8) inches of top
coal is encountered or adverse roof conditions are evident, and the mining machine operator is beyond artificial
support, mining in such working place will be stopped,
the continuous mining machine withdrawn, and the roof
adequately supported before further mining is conducted

!f

The equivalent provision of the 1977 Act is section llO(c)~

1292

in that area. When the roof rock is inadvertently
exposed, but the roof is otherwise sound, the miner head
may be dropped down and a brow of top coal no greater
than six (6) feet deep may be established prior to
withdrawal. * * * [2/]
In order to prove a violation of section 109(c) of the 1969 Act,
the Petitioner must establish that (a) the corporate operator violated 30 CFR 75.200 (b) Respondent was the agent of the corporate
operator (c) Respondent knowingly authoriz~d, ordered, or carried
out these violation. Everett L. Pritt, 8 IBMA 216 (1977).
The term "agent" as defined under section·3(e) of the 1969 Act,
30 U.S.C § 802 (1970), is ~any person charged with responsibility for
the operation of all or part of a coal mine or the supervision of the
miners in a coal mine." The evidence clearly establishes that the
respondent was the section foreman, who was in_charge of the relevant
area of the .mine where the roof fall occurred (Tr. VoL I 95-96,
Vol. II 140-141). I therefore find that the Respondent, as section
foreman, is an agent of the corporate operator. MESA v. Daniel
Hensler, Docket No. VINC 75-374-P (March 31, 1976-)-.~
The contentions of MSHA are, in my opinion, well summarized in
the following portion of GX-11.
On the day of the accident, November 21, 1977,
Mr. Terry Gossett, continuous miner operator was operating
the continuous mining machine in the 45 degree crosscut
between rooms 27 and 28 and during this time roof and-rib
rock became exposed. Mr. Terry Gossett, continuous miner
operator stated that he showed the foreman Mr. Hubert
Williams, the exposed rock and ask him if he wanted to back
out Jand bolt and Williams said no, to drive it all the way
up. Mr. Gossett stated that he drove the place into where
the unsupported rock was over his head and then Williams,
the foreman got on the machine and drove the place the rest
of the way. To summarize the event, the sec ti.on foreman
knew ab~ut the exposed rock top and ordered the miner operator, Mr. Terry Gossett, to drive the place up and when the
miner operator, did not do so, Hubert Williams, foreman ran
the machine himself and mined 25 feet past exposed rock top.
2/ Respondent had been furnished the wrong roof-control plan prior
to the prehearing conference. He was furnished the proper plan prior
to the hearing on the merits and while this may have inconvenienced
Respondent, it was not a fatal error. Also, I am of the opinion that
it does not matter whether the miners were engaged in advancing or
retr~ating since the quoted part applies to both types of mining.

1293

Hubert Williams, foreman then backed the machine out and
ordered Terry Gossett to take a couple of buggies off the
corner before making the move to start another 45 degree
crosscut. As Terry Gossett was taking the second buggy off
the corner, Hubert Williams, foreman was standing ne~rby
observing when the roof fell in.
Based on the information outlined above, Hubert
Williams, section foreman knowingly authorized, ordered
and carried out a violation of a mandatory safety standard.
Under Section 109(c) of the Coal Mine Health and
Safety Act of 1969 and Section llO(c) of the Federal Mine
Safety and Health Act of 1977, a section foreman is considered to be an agent of the operator, and is subject to
be assessed a civil. I recommend that Hubert Williams,
Section Foreman, Old Ben Coal Company, Mine No. 21, be
assessed a civil penalty of $2,000.00.
The corporate operator has been assessed a civil
penalty of $10,000.00 for this same violation.
Respondent rigorously argues that the testimony as presented by
MESA failed to establish that roof rock was exposed at the site of the
alleged violation and Respondent had knowledge of such exposed rock.
Instead, the Respondent contends that MESA has merely established that
there was rock in the arch or rib rather than the roof; thus, this
occurrence would not ·be violation of the above-stated roof control
plan.
I am of the .opinion that the evidence clearly establishes, not
only the presence of exposed roof rock at the time of the violation,
but also that Respondent had knowledge that such roof rock existed.
MESA introduced five witnesses who testified to the presence of
the roof rock. Two of the witnesses had observed the roof immediately
before the accident. Terry Gossett, the continuous miner operator,
testified that noi: only did he observe exposed roof rock; which
extended for approximately 15 feet (Tr. Vol. I 256), but he also had
reported the presence of the roof rock to the Respondent (Tr. Vol. 1
206, 207, 212). Mr. Gossett testified that upon being informed of
the exposed roof rock, the Respondent instructed him to drive his
machine up the short 45 without bolting the area (Tr. Vol. I, 207).
After driving the machine about 20 feet, Mr. Gossett refused to drive
the machine under the exposed rock (Tr. Vol. I, 223) and at this point
Mr. Williams got on the machine and drove it the rest of the way up
the short 45.
Gary Ritchason, a bottom laborer, had just left for dinner at the
time of the roof fall. He testified that the roof rock was exposed
prior to the accident and that Respondent had observed the roof rock.

1294

Tr. Vol. 1, 249-251). In fact, he had heard Mr. Gossett report to
the Respondent that there·was exposed roof rock (Tr. Vol 1, 251).
Mr. Ritchason specifically indentified the rock he was referring
to as being located in the rib and on the roof (Tr. Vol. I, 250).
Maurice Messersmith, a roof control specialist for MESA, examined
rooms 27 and 28 of. the No. 21 Mine 1-1/2 hours after the roof fall
(Tr~ Vol. II, 29).
He testified that the roof and rib rock were
readily visible at this time (Tr. Vol. II, 28-30).
A second MESA roof control specialist, William Mitchell, examined
the relevant section on the day following the accident and he indicated that the exposed rock extended down into the rib and also across
the roof (Tr. Vol. I, Tr. 71, 72, 78). He was of the opinion that the
exposed rock should have been apparent to anyone working in the
section (Tr. Vol. I, 146).
The president of the local union, Terry Jones, also took part in
the initial investigation, approximately 1-1/2 hours·after the roof
fall. He stated that the exposed rock was located in the roof and
the rib (Tr. Vol. II, 85); the exposed rock should have been
apparent to the section foreman (Tr. Vol. II, 88). As Respondent
points out in his brief, the two MESA inspectors and the president of
the local union could only give "after the fact " testimony in that
their examination of the roof occurred after the fall. It was thus
possible that the roof rock which they saw became exposed because of
the fall (Tr. Vol. II, 56).
The Respondent denied that he observed any rock on the roof or
that his conversation with Mr. Gossett had brought to his attention
the exposed roof rock (Tr. Vol. II, 144, 147, 149, 150, 158, 169).
Respondent, however, did recall taking.over for Mr. Gossett and driving up the short 45, but he could not remember his reason for taking
such action (Tr. Vol. II, 70) or the contents of his conversation
with Mr. Gossett.
Upon evaluating the testimony of the Governments' two eyewitness
in conjunction with the testimony of the three "after the fact" witnesses, I find that the evidence clearly and convincingly establishes
that roof rock, as well as rib rock, was exposed in the relevant section of the No. 21 Mine prior to the roof fall. Furthermore, I find
that Respondent was aware of the exposed roof rock at the time he
permitted mining activities to proceed for a distance greater than
6 feet in violation of the roof-control plan. It follows that
Respondent's principal, the corporate operator, was also guilty of
violating the roof control plan.
As to the gravity of the violation, Respondent argues that the
rock fall did not occur during the time of the alleged violation
(Rx 1, Resp. Brief p. 14) and the rock fall occurred in a different
area than the alleged violation (RX 1 and 2, Tr. 14). Respondent

1295

bases these arguments on a motion to approve settlement and a decision approving settlement in a civil penalty proceeding in which Old
Ben, the corporate operator, was charged with the same roof control
plan violation of November 21, 1977. He argues that the decision contains official findings of the Commission.
A decision approving i;ettlernent, under our proceedings, i,s made
without the benefit of a formal hearing. There is no opportunity to
present expert and non-expert witnesses; or to cross examine anyone
on the accuracy and the validity of the documents introduced for
purposes of having the settlement agreement apP,roved. In this case,
where a hearing has been held on the question of violation, due process dictates, that the findings of fact shall be based on the record
as established at the hearing rather than deferring to the findings
of a prior settlement decision. I therefore hold that the factual
findings in a decision to approve settlement have no binding or collateral estoppel effects on a subsequent hearing involving the same
violation with a different defendant.
Respondent is nevertheless technically correct that the rock
fall did not occur during the exact time of the alleged violation.
The area of the exposed roof rock, the short 45, had already been
driven up for approximately 50 feet and at the time of the fall the
corner between the short 45 degree crosscut and Room 28 was being
cut. Mr. Gossett estimated that approximately 10 minutes had elapsed
between driving the short 45 all the way up 50 feet and when the said
c9rner was cut (Tr. Vol I 208).
Respondent's argument that the roof fall occurred in a different
area than the alleged violation is clearly refuted by the testimony
and exhibits. The exposed roof rock was located near the left-hand
side of the rib in the short 45 (Vol. I, 74, Vol II 84). Government
Exhibits 4 and 5 depict the area of the roof fall as including part
of the area near the lefthand side of the rib of the short 45 where
the exposed roof rock was located. I thus find that part of the roof
fall occurred where there was exposed roof rock and that mining had
proceeded beyond 6 feet in. this area.
The testimony from five Government witnesses who had examined
the roof fall area indicates that had the roof been properly bolted,
the roof fall would not have occurred (Tr. Vol. I, 213,258, Vol. II,
33, 102). Inspector Mitchell stated: (Tr. Vol. I, 73-74).
A. (Mr. Mitchell) All right sir. When that rock
was--when that rock was exposed, right there on the corner,
the left-hand corner leading into the short 45 degree.
crosscut, that place shouldn't have been c;lriven over
six feet. The continuous miner pulled out, the roof bolting machine brought in, and that area permanently supported
with roof bolts before mining was continued on up to the
face of this short 45.

1296

He further stated:

(Tr. Vol. I, 73).

* **When you expose rock in a place like this, and you
continue to drive, there is a time exposure element there
that will contribute to a roof fall occurring. If--if
this place would have been bolted, the roof fall wouldn't
have occurred, in my opinion, because of the thickness of
the roof fall~ * * *
Inspector Mitchell went on to explain that the minimum length
roof bolt used in the No. 21 mine was 60 inches. Whereas the fallen
material was 3 feet thick, the bolts would have' been anchored 2 feet
above where the roof broke, thus preventing the fall (Tr. Vol. I, 75).
I find that the mining activities which violated the roof control
plan and the subsequent mining of the corner occurred close enough in
time (as well as location) to reasonably conclude that the roof fall
was caused by the violation of the roof control plan.
In assessing a civil penalty under 109(c) I shall consider the
seriousness of the violation, the degree of negligence involved, and
the financial condition of the Respondent. The other criteria do not
seem appropriate because Respondent was not involved in the abatement
and has no prior history of violation.
I find that there was negligence on the part of the Respondent
and that the violation was serious. I find that Respondent earns a
salary of $26,000 a year, and that Old Ben Coal Company which earns
somewhat more than that settled its case involving this same order
for $6,000.
Based on the foregoing, I assess a penalty of $1,000.00 against
the Respondent. All pending motions are hereby DENIED.
ORDER
It is hereby ORDERED that Respondent, within 30 days hereof,
pay to the Mine Safety and Health Administration the civil penalty
assessed above.

Charles C. Moore, Jr.
Administrative Law Judge

1297

Distribution:
J. Philip Smith, Esq., HSHA, Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson B.lvd., Arlington, VA 22203

Charles L. Widman, Esq.) Suite 902, Wire Building, 1000 Vermont
Avenue, NW., Washington, DC 20005 (Certified Mail)
Administrator for Coal Mine Safety & Health,
Labor

u.s. Department of

Standard Distribution
<> U. S. GOVERNMENT PRINTING OFFICE: 1979 281-729/3307

12'98·