INDEX MARCH 1980
Co:mri.ssion Decisions
3-07-80 Davis Coal Co. , MSHA v.
3-31-80 Scotia Coal Mining Co. , !·1SHA v.

HOPE 78-627-P et al
BARB 78-306

Pg. 619
Pg. 633

Administrative Law Judge Decisions
3-04-80
3-05-80
3-05-80
3-07-80
3-07-80
3-07-80
3-10-80
3-10-80
3-11-80
. 3-12-80
3-12-80
3-13-80
3-17-80
3-19-80
3-19-80
3-19-80
3-19-80
3-19-80
3-19-80
3-19-80
3-26-80
3-27-80
3-28-80
3-28-80
3-31-80
3-31-80

Duval Corp. , MSHA v.
WEST 79-194-M
DENV 78-579-PM
Union Rock and Materials Corp., MSHA v.
Rita Coal Co., MSHA v.
KENT 79-52
Peab:xly Coal Co. v. MSHA & UMWA
CENT 79-335-R
Republic Steel Corp. , MSHA v.
PENN 79-137
Princess Susan Coal Co. v. MSHA
WEVA 79-423-R
Windsor Power House Coal Co. v. MSHA & UMt'iA WEVA 79-193-R
Ranger Fuel Corp. v. MSHA
WEVA 79-378-R
Jones & Laughlin Steel Corp, MSHA v.
PENN 79-145
Faulkner Coal & Leasing, MSHA v •
KENT 79-146
Sewell Coal Co. , MSHA v.
HOPE 79-6-P
Msha, ex rel. Thanas Robinette v. United
VA 79-141-D
Castle Coal Co.
DENV 79-245-PM
Kaiser Steel Corp. ' MSHA v.
Consolidation Coal Co. , .MSHA v.
'WEVA 79-354
Island Creek Coal Co. , MSHA v.
WEVA 79-338
Lunar Mining Co. , MSHA v.
PENN 79-160
Island Creek Coal Co. MSHA v.
WEVA 80-48-D
VA 80-31
Eastover Mining Co. , MSHA v.
Consolidation Coal Co. , MSHA v.
PENN 80-19
VINC 79-213-PM
Surmnitville Tiles Inc. , MSHA v.
Magma Copper Co. , .MSHA v.
DENV 79-452-PM
Cedar Coal Co. , MSHA v.
WEVA 80-106
Freenan United Coal Mining co. , .MSHA v.
VINC 78-395-P
Valley camp Coal Co. , ~1SP..A v.
WEVA 79-111
funterey Coal Co. , MSHA v.
WEVA 80-64
American Sand & Gravel Co. , MSHA v.
BARB 79-209-PM

Pg. 641
Pg. 645
Pg. 652
Pg. 659
Pg. 666
Pg. 669
Pg. 671
Pg. 674
Pg. 678
Pg. 680
Pg. 690
Pg. 700
Pg. 708
Pg. 725
Pg. 730
Pg. 732
Pg. 734
Pg. 736
Pg. 738
Pg. 740
Pg. 744
Pg. 746
Pg • 748
Pg. 756
Pg. 761
Pg. 763

carmission Decisions
March 1 - 31, 1980

MARCH

The following cases were Directed for Review during the month of March:
Secretary of Labor, MSHA v. C.C.C. Pompey Coal Co., Inc., PIKE 79-125-P
(Judge Steffey, January 28, 1980)
Secretary of Labor, MSHA v. Alabama By-Products Corporation, SE 79-110,
etc. (Judge Moore, February 12, 1980)
Local Union No. 6843, District 28, UMWA, v. Williamson Shaft Contracting
Company, VA 80-17-C (Judge Moore, January 31, 1980)
Pittsburg & Midway Coal Mining Company v. Secretary of Labor, MSHA,
BARB 79-307-P, etc. (Judge Koutras, February 8, 1980)
Secretary of Labor, MSHA v. Southern Ohio Coal Company, VINC 79-227
(Judge Kennedy, February 8, 1980)
Secretary of Labor, MSHA v. Sewell Coal Company, HOPE 78-744-P (Judge
Lasher, February 12, 1980)
Secretary of Labor, MSHA v. Alabama By-Products Corporation, SE 80-41-R
(Judge Laurenson, February 14, 1980)
Secretary of Labor, MSHA on behalf of Bobby Gooslin v. Kentucky Carbon
Corporation, KENT 80-145-D (Petition for Interlocutory Review on
temporary reinstatement order)
Review was Denied in the following cases during the month of March:
Secretary of Labor, MSHA v. Sunbeam Coal Corporation, PITT 79-210, etc.
(Judge Koutras, January 29, 1980)
Charles W. Miller v. Old Ben Coal Company, LAKE 79-282-D (Judge
Bernstein, February 5, 1980)
White Pine Copper, Division of Copper Range Co. v. Secretary of Labor,
MSHA, LAKE 79-223-RM, etc. (Judge Kennedy, February 4, 1980)

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

March 7, 1980
Docket Nos. HOPE 78-627-P
HOPE 78-672-676-P
HOPE 78-687-P
HOPE 78-696-P
HOPE 79-112-P
HOPE 79-195-P
HOPE 79-233-P
HOPE 79-234-P

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

v.
DAVIS COAL COMPANY

WEVA 79-25
WEVA 79-130-133
DECISION
We directed review on our own motion on April 23 and October 17,
1979, and January 8, 1980, of several decisions of administrative law
judges granting motions to approve settlements in these cases. The
issue in these civil penalty cases is whether the reasons given for
the proposed settlements, and the facts offered in their support,
warranted appro~al of the settlements. The motions set forth information relevant to the six statutory criteria in section llO(i) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seg.,
and extensively discussed the detrimental effect that assessment of
the originally proposed penalties would hav~ had on Davis' ability to
remain in business. The judges in each case considered the reasons
for the proposed settlements and weighed the criteria set forth in
Rule 2700.30(c); the reasons for the settlements are also on the public
record. We have reviewed the records, and we find no basis to conclude
that the administrative law judges erred in approving the settlements.
The judges' decisions are, accordingly, affirmed.

Commissioner Lawson, d-issenting:

I dissent.
The evidence submitted in support Qf theie
1977 Act settlements does not support the token penarties
agreed to for the violations involved.
The Secretary concedes that the sole reason for the
drastic reduction of the penalties initially proposed is
this operator's "dire" financial ccnditi0n._!./ A review of
the facts--undisputed except for those bearing on this
operator's financial condition--is instructive.
Davis Coal Company (Davis) admitted in these cases to
174 violations, 117 of which were either serious or very
serious. Nor did this operator contest the fact that in the
twenty-four months preceding the first of these violations,
it had also accumulated some 156 other violations.
The Secretary's Office of Assessments proposed penalty
assessments for the violations now before us in the total
amount of $46,237.00.
Despite this history, the Secretary
agreed between March and October 1979, to settlement of
these 174 violations for a total of $5,109.70, or a reduction
of nearly 90 percent from the penalties originally proposed.
The average amount paid by this operator was thereby reduced
to $29.36 per violation. ~/Moreover, neither the Secretary
nor the Judges1 below required this operator to come forward
with any current financial information to determine what, if
any, effect payment of the initially proposed penalties
would have had on Davis' ability to continue in business.1/

_!./Davis did not contest the fact that it had violated the
Act in each of these 174 instances, the gravity of
the violations, or the negligence claimed in any instance.
Neither did Davis dispute its history of past violations.
This prior history was properly--perhaps even charitably-characterized as "large."
(Secretary's Motion to Approve
Settlement and Dismiss, HOPE 78-627-P et al (Davis I)
served March 19, 1979.)
2/This compares to an average penalty per violation paid
- by all operators, for calendar year 1979, of $124.00.
(Mine Safety and Health Administration Activity Report
(1979)).
1/Section llO(i) of the Act provides: "The Commission shall have
authority to assess all civil penalties provided in this
Act.
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation."
620

Scrutiny of Davis' business operations and supposedly
"dire" financial condition therefore appears necessary in
the context of review of these settlements~
The financial
data which was submitted by the operator, and accepted by
the Secretary, revealed that Davis Coal Company--a corporation
owned solely by the president thereof--had only two officers,
Winford Davis, president, and Marie Davis, who for 1976 were
paid salaries totalling $29,000.00.
The corporation made a
net profit of $190,008.00 in 1976.
For 1977, Davis claimed a net loss of $332,548.00.
Nevertheless, the corporation's assets increased from
January 1, 1976 to December 31, 1977, by more than $900,000.00,
from $1,815,722~00 to $2,725,111.00.
In 1977 this operator
also increased the salaries paid to these same two officers
from $29,000.00 to $71,578.00, despite the corporation's 1977 "loss."'!__/
Further, those 1977 and 1978 "losses"--substantially
resulting from "natural disasters," as noted by the Secretary
in its brief of June 15, 1979 (page 6), were more than
compensated for by insurance.
(Secretary's Motion to Approve
Settlement, Exhibit B thereto (Statement Electing to Have
Gain Not Recognized), HOPE 78-627-P et al filed March 19,
1979).
4/This operate~ also expended $10,500.00 for a new boat
- in 1975, $3,596.00 for a new golf cart in 1976, and
$19,203.00 for a new Mercedes Benz in 1976, all purchased
by and for the corporation, and one must assume necessary
for Davis' mining endeavors.
Their precise utility
in these mining operations is not, however, explained in
this record.
Mr. Winford Davis is also the sole owner of another coal
·company, Burning Springs Collieries Co., which has the
same address as Davis Coal.
Burning Springs showed a
profit of $36,828.00 in 1976, and $22,800.00 in 1977.
Certain real estate is also jointly owned by Davis Coal
and Burning Springs, (Exhibit B, supra) and indeed is
collateral for a loan obligation of Davis Coal.
No investigation was had, nor information secured or requested, as
to the financial interrelationship between these corporations.

621

This (Davis I) motion for settlement is unfortunately
representative of the manner in which these violations were
resolved.
In that motion the Secretary noted Davis' 156
violations in the 24 months preceding the first violation in
the instant dockets, during 83 inspection days, and '' ... that
this represents a large history of previous violations."
In addition to the expenditures previously noted, and
despite the fact that the violations settled in Davis I were
agreed to on March 23, 1979, no 1978 or later tax returns
were then--or ever--submitted--or apparently demanded by the
Secretary or Judges to support this operator's plea of
poverty.
In fact, the only financial data submitted by
Davis at that time was an unaudited financial statement for
the first nine months of 1978 (dated September 30, 1978)
accompanied by an explanation that the financial statements
were "not audited" "are incomplete presentations" ... "do not
include all the disclosures required by generally accepted
accounting principles" and "should not be used by anyone who
is not a member of the company's management."
(Secretary's
Motion to Approve, Exhibit C thereto, HOPE 78-627-P et al
filed March 19, 1979).
Davis is nowhere on record, in any exhibit,
motion, brief, or pleading before any of the Judges below,
or this Commission, with~ audited financial statements,
which might give at least colorable credibility to the
proposed penalties' claimed "effect on the operator's ability
to continue in business."
(Section llO(i), supra).
Indeed,
in no instance did the parties submit or the Judge require
current financial information to show whether or not Davis
'
could, at the time
it was requesting approval of a 90 percent
penalty reduction, pay the full penalties proposed and
remain in business.
The Secretary in Davis I also uncritically acquiesced
in Davis' representation 'of its financial condition and
accepted without question this operator's "unofficial
corporate balance sheet," whatever that may be.
(Emphasis
added).
(Exhibit C, supra).
In addition, the settlement
in those dockets--$2,407.00 versus proposed penalties of
$23,935.00--was permitted to be paid in quarterly payments
of approximately $600.00 per payment.ii This settlement was
deemed acceptable for an operator with gross receipts (for
the first nine months of 1978) of $736,982.00, and then
current assets of $1,114,734.00.
i/The Congress in writing the ~977 Act expressed strong disapproval of the delays which took place in penalty payments
under the 1969 Act.
"While low penalty assessments constitute
one disturbing element of the current civil penalty system,
the Committee is equally disturbed by the rather long period
of time between citation of the initial violation and the final
payment of the penalty associated with that violation." " •.. The
Committee firmly believes that to effectively induce compliance,
the penalty must be paid by the operator in reasonably close
time proximity to the occurrence of the underlying violation."
(S. Rep. at 15, 16; 1977 Legis. Hist. at 603, 604).

622

No mention was made in the motion to approve that
settlement of any deterrent effect of the penalties agreed
upon by the Secretary.
Nor does the record evidence any
consideration by either the Secretary or the Judge of
deterrence, despite the legislative history of the Act.
That history clearly states that the purpose of civil
penalties is to "convinc[e] operators to comply with the
Act's requirements."
(S. Rep. at 45; 1977 Legis. Hist. at
633).
Nor did the penalty settlements arrived at in Dockets
HOPE 79-195-P, 233-P, 234-P
(Davis II); WEVA 79-25 (Davis
III); or WEVA 79-130-133 (Davis IV) reflect more serious
consideration of the place of deterrence in the fixing of
penalties under the Act.
In Davis II the Secretary does
concede that financial difficulties do not " .•• automatically
require major reduction in proposed penalties";
nevertheless,
a 90 percent reduction in the proposed penalties, from
$7,355.00 to $735.50, was found acceptable.
Davis III and IV also reflect very major reductions,
from $3,263.00 to $326.30, and $11,684.00 to $1,640.00,
respectively.
The emphasis in those dockets is on assuring
Davis' continuing its mining operations, despite (e.g.) in
the most recently settled docket (Davis IV), a finding of
sixty-nine violations, of which forty-seven were admittedly
"serious."
Of more current and comparative interest, in the context
of this Commission's review,is an (unreviewed) decision of
January 10, 1980, in which Judge Joseph B. Kennedy approved
a settlement of $2,325.00 by this operator for several
dockets in which the penalties originally proposed totalled
$3,582.00.
That settlement, which Davis agreed to--despite
a continuing contention by this operator of financial
stringency--reflects a reduction of only 33 percent from the
penalties originally proposed, Davis Coal Co., Dockets Nos.
WEVA 79-358, 359.
(Davis V).

623

While Section llO(i) of the Act requires the Commission,
in assessing civil monetary penalties to "consider ..• the
effect on the operator's ability to continue in business .•• 6/"
all of the
settlements now before us, buttressed only by a scant record and slim fiscal documentation, including
inter alia the expenditures by Davis for a boat, golf cart,
and Mercedes Benz over a period of claimed extreme financial
stress, fail to withstand even the most casual examination.
As a minimum, it would appear to be fundamental that
the Secretary demand, before accepting pleas of poverty made
by this--or any other--operator, direct representations
by the operator to the Judge, as well as to the Secretary,
detailing its plea of poverty, and sustained by complete and
fully audited current financial statements.
Second hand
verbal assurances from the Secretary to the Judge , as
exemplified by these cases, are not persuasive.
The burden
of proving that the penalties proposed will have an adverse
effect on an operator's ability to continue in business is
obviously that of the operator.
It is anomalous indeed for
the Secretary to gratuitously accept that burden--as here
.appears to be the case--and to me representative of a
regressive return to the practice properly found wanting under
the 1969 Act.
Even more disturbing is the Secretary's none too subtle
suggestion in these cases--and the dockets before Judge
Kennedy (suprah--that his agreement to a settlement is in

~/Noneof

the other criteria enumerated in Section llO(i) are
in issue in the cases now before us.
The parties do not
contend that the criteria to be considered when the Secretary
and the operator agree upon penalty settlements are in any
way different from the criteria to be applied when penalties
are imposed after a hearing and not as a result of agreement.

624

effect unreviewable and final, and that there is no objective
standard to be applied for evaluating the appropriateness of
the pe~alties agreed upon by him, other than Secretarial
discretion.2/ To the contrary, the statute does not afford
the Commission or its Judges--much less the Secretary-~the luxury
of merely rubber stamping the parties' agreement to mutually
satisfactory penalties.
Indeed, the legislative history of
the 1977 Act has made clear the public interest involved in
the imposition of penalties.mandated by the Act.
In constructing the 1977 Act, Congress paid significant
attention to penalties, noting its dissatisfaction with the
low settlements of penalties under the 1969 Coal Act.
Section llO(k)~/ was therefore made a part of the 1977 Act,
in order that penalties, mandatory under the 1977 Act, would
not be compromised, mitigated or settled except with the
approval of the Commission.
As detailed in the Senate Report, the Congress stated:
"In short, the purpose of a civil penalty is to
induce those officials responsible for the operation
of a mine to comply with the Act and its standards."

"To be successful in the objective of including
(inducing) effective and meaningful compliance,
a penalty should be of an amount which is sufficient
to make it more economical for an operator to comply
with the Act's requirements than it is to pay the
penalties assessed and continue to operate while not
in compliance."

"In overseeing the enforcement of the (1969) Coal Act
the Committee has found that civil penalty assessments
are generally too low, ..• the effect of the current
enforcement is to eliminate to a considerable extent
the inducement to comply with the Act or the standards,
which was the intention of the civil penalty system."
?_/"In the judgment of the parties and the administrative law
judge, as a result of the company's financial condition, a
10 percent penalty will deter Davis from future violations
as much as a more substantial penalty would deter another
company."
(Secretary's Brief on review, served November 13,
1979).
(Emphasis added).
8/"No proposed penalty which has been contested before the
- Commission under section lOS(a) shall be compromised, mitigated,
or settled except with the approval of the Commission.
No
penalty assessment which has become a final order of the Commission shall be compromised, mitigated, or settled except
with the approval of the court."

625

"The Committee strongly feels that the purpose of
civil penalties, convincing operators to comply with
the Act's requirements, is best served when the process
by which these penalties are assessed and collected is
carried out in public, where miners and their representatives, as well as the Congress and other interested
parties, can fully observe the process.
"To remedy this situation, Section 111(1) provides that
a penalty once proposed and contested before the Commission may not be compromised except with the approval
of the Commission . . . . By imposing these requirements
the Committee intends to assure that the abuses involve
in the unwarranted lowering of penalties as a result of
off-the-record negotiations are avoided.
It is intended
that the Commission and the Courts will assure that the
public interest is adequately protected before approval
of any reduction in penaltie~"
[S. Rep. at 41-45, 1977
Legis. Hist. at 629-633; emphasis added.]
The Act's penalty provisions are therefore best summarized
as requiring penalties in such amounts as will induce compliance
with the Act, by a process in which penalties are subject to
the full scrutiny of all interested parties, to assure
protection of ~he public's interest in the imposition of
penalties sufficient to deter future violations.
In order
that this be accomplished, the Commission is required to
approve the penalties imposed.
While ~either the Act nor the legislative history is as
specific as might be wished in guiding the Commission in
fulfilling this statutory responsibility, it is impossible
when, as here, the record is grossly inadequate.
Nor are
these dockets--unfortunately--unique in their deficiencies.~/

9/See for example, Bethlehem Steel Corp., PENN 79-100-M, and
- Itmann Coal Co., HOPE 79-188-P, in which the history of
previous violations of the operator neither appear in the
case records nor in the (respective) motions of the Secretary
seeking settlement approvals.
In King Coal Co., KENT 79-196,
197, the record is silent as to whether the nineteen citations
therein are being settled for particular individual amounts,
in full, at a fixed percentage, or without penalty.

626

If the record predicates necessary to our penalty
approval role are absent from the record below, clearly
neither we nor our Judges can meet our statutory responsibilities.
It would not seem unduly difficult or burdensome
for the Secretary to detail the factual bases on which
approval for penalty settlements are founded.10/ Absent
this information, meaningful review and evaluation of penalties
cannot be had, nor their "appropriateness" determined as
required by the Act • .!1:./
The basic test is therefore whether the penalty will
deter future violations, and is consequently "appropriate."
In making that determination, the only statutory source
providing criteria for review of approval of penalties is
Section llO(i) of the Act and the six factors enumerated
therein.
It is to these that the Commission, and its Judges,
must turn in considering penalty proceedings under the Act.
To the extent that the Act is silent, or imprecise, resort
must be had to the legislative history.
There is no doubt that the Congress has directed the
Commission toward a more active role in overseeing the
penalty settlement process than was the case under the 1969
Act.
It was unwilling to entrust to the Secretary alone the
protection of the public interest in penalty settlements.
(Section llO{k), S. Rep. at 45; 1977 Legis. Hist. at 633,
supra).

10/Indeed, I strongly suspect some of our Judges are at least
as troubled as I by the current dearth of data presented
to them in penalty proceedings.
Kaiser Aluminum & Chemical
Corp., CENT 79-46-M, Republic Steel Corp., PITT 78-424-P~
Biue Rock Industries, WILK 79-170-PM, and see Davis Coal,
WEVA 79-358, 359.
11/See also the Commission's perman~nt Rules of Procedure
(effective July 30, 1979) (Rule 2700.30{c).
" ... Any order
by the Judge approving a proposed settlement shall be fully
supported by the record.
In this regard, due consideration
and discussion thereof, shall be given to the six statutory
criteria set forth in Section llO(i) of the Act." (Emphas~s
added).

627

Indeed~ where a tribunal before which a case is pending
is required to approve a settlement to protect either the
public interest or some special private interest, some active
inquiry is usual.
See 9 Wright and Miller, Federal Practice
and Procedure:
Civil §2363 at 153, 160 (discussing F.~. Civ.P.
4l(a)(l)).

The Supreme Court in a bankruptcy reorganization
settlement has also held that the statutory requirement
that reorganization plans be "fair and equitable" applies
to approvals of settlements of reorganization matters as
well as to litigated reorganizations.
To satisfy this
requirement, the bankruptcy judge must apprise himself of
all facts necessary for an intelligent and objective opinion
of the probabilities of ultimate success should the claim
be litigated, as well as the expense, complexity and duration
of any litigation.
"Basic to this process in every instance,
of course, is the need to compare the terms of the compromise
with the likely rewards of litigation",
and, as emphasized
by the Court:
"[i]t is essential, however, that a reviewing court
have some basis for distinguishing between wellreasoned conclusions arrived at after a comprehensive
consideration of all relevant factors, and mere boilerplate approval phrased in appropriate language but
unsupported by evaluation of the facts or analysis
of the law."
[Protective Committee of Independent
Shareholders of TMT Trailer Ferry, Inc. v. Anderson,
390 U.S. 414, 424, 434 (1967).J
These decisions strongly suggest that the Judges and this
Commission do not meet the mandate of our Act by merely .E...E.£.
forma acceptance of the parties verbal, unconsidered and
thinly supported agreement to mutually acceptable amounts,
arrived at without satisfying the six statutory criter~a set
forth in Section llO(i).
Whatever the Commission's role may be, it--and its
Judges--must at least have before them for purposes of
meaningful evaluation or appellate approval of penalties,
factually support~ve case history.
The mandate of the Act
is not met by general decisional declarations, otherwise
unsupported, that "I find no reason to challenge MSHA's
position." or, "There is no indication that either party was
coerced or fraudently induced into the accord."1J:._/

1l/Rex Alton and Company, LAKE 79-28-M; Ranger Fuel Corp.,
HOPE 78-743-P.

628

! fortiorj, similar conclusory generalizations not set
forth in decisions but app~aring only in motions made to the
Judge below, are even less compelling or entitled to
acceptance, particularly in view of the strong public interest
in open and public penalty assessments, so forcefully endorsed
by the Congress.
(S. Rep. at 45; Legis. Hist. at 633, supra).
Lastly, when contentions made are unsupported by the
record, particularly with reference to those Section llO(i)
criteria most readily secured and accessible for documentation and
inclusion in the decision of the Judge
(e.g., the operator's
history of previous violations; or financial data--as here-claimed as buttressing for the possible effect on the operator's
ability to continue in business), no justification is apparent
for the Sec~etary's failure to assemble the necessary facts for
incorporation by the Judge in his decision fixing penalties.
In the instant cases, I would therefore find the absence
of audited financial data to constitute a failure of proof,
and insufficient under the Act to justify the settlements
accepted by the Secretary.
Whether further documentation
might indeed verify that the settlements here agreed to are
appropriate--because of "the effect on the operator's ability
to continue in business"--on the record presented, I am unable
to determine.
Nor do I believe the Judges below were able to
determine whether the penalties imposed would serve as
deterrents to rfuture violations.
This operator's
large history
.
of prior violations, and erratic financial and operational
record, provide no basis for confidence that the penalties
agreed to will serve the statutory purpose of deterring future
violations.
An even broader but no less compelling consideration
should motivate all toward the procedures suggested.
As
these and other decisions make evident, penalty proceedings
below are treated with widely varying touches.
In many
instances, the judges have been most assiduous and demanding
when assessing or approving penalties, to ~ake certain that
the six statutory criteria are supported by the record and
fully discussed.
(FMSHRC Rules of Procedure (Rule 2700.30(c),
supra).
In other instances we have, in my judgment, fallen
short.

629

In the belief that consistency and predictability in
the application of the law, and our Act is both desirable-and necessary--and I am convinced, needed by those subject
to its strictures, I believe that the Secretary, the Judges,
and the Commission fail to meet their respective responsibilities if inconsistencies in the imposition of penalties
are perpetuated.
Mechanistic application of the law is not
the goal, but certainty and predictability is crucial to any
evenhanded application of the law.
There must be no
discrimination in favor of or against similarly situated
litigants.
Counsel's d~cisions, however well intentioned,
should not be determinative in the fixing of penalties under
this Act.
The Congress, as I read the Act and its legislative
history, has clearly expressed itself to the contrary.
The considerations involved were well expressed by
Judge Kennedy in his Order to Furnish Information of
December 14, 1979, and Decision and Order Approving Settlement
of January 10, 1980, (Davis V, supra):
"The Regional Solicitor claims that in reviewing a
proposed settlement the advisability of a reduction
in proposed penalties because of adverse business
impact need not take into account or be balanced
against the affirmative interest in perpetuating
only safe mining operations.l/
The logical extension
of this position seems to be that mine safety is a
consideration secondary to mine productivity and that
the enforcement policy in effect is "all the safety
consistent with production" and not "all the production
consistent with safety."
l/"While the Act requires that adverse business impact
be "considered", it does not require that it be given
controlling weight or that it cannot be outweighed by
the countervailing interest in continuing only those
mining operations that promote mine safety."

" •.• the question as I see it, is whether in view of the
pattern of unwarrantable failure violations disclosed
the Davis mine is not a disaster waiting to happen, and,
if so, whether it is in the public interest to encourage
its continued operation by even a token reduction in the
amount of the penalties warranted by its past operations."

630

"While Congress, directed that the impact of penalties
on an operator's ability to continue in business be
considered, it obviously did not intend to encourage
the continued production of coal in a mine in such
dire financial straits that the operator cannot p~o
vide a minimal safe w~rkplace environment.
In other
words, I believe there comes a time when the seriousness of violations cannot be minimized, trivialized or
tacitly condoned in the interest of preserving
stockholder equity or marginal productive capacity •... "
"I am fully sympathetic to this relatively small
operator's financial plight, but I am also charged
with considering the socioeconomic impact of a
disaster at this mine on the lives and well being
of its miners and their families.
I am also persuaded
that the spectre of unemployment is more easily
confronted than the awesome finality of the undertaker."
I too am deeply troubled by those matters which disturbed
Judge Kennedy.
The way to avoid penalties being imposed which
are unfair or inequitable must be by requiring rigorous
adherence to the statute by all concerned, with full public
disclosure of the penalty imposition process, and a record
which fully reflects the place of deterrence in the statutory
scheme of the Act.
I would therefore reverse and remand for
the purpose of requiring that there be strict compliance with
the criteria enumerated in Section llO(i) of the Act, before
any settlement of these dockets is approved.

,---,

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v·:'hv--

A. E. Lawson, Commissioner

631

Distribution
Paul E. Pinson, Esq.
P.O. Box 440
Williamson, West Virginia 25661
Winford Davis
Davis Coal Company
Box 427
Kermit, West Virginia 25674
Ronald E. Meisburg
Thomas P. Piliero
Judith Macaluso
Attorneys
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Judge Charles C. Moore, Jr.
Judge John F. Cook
Judge Franklin P. Michels
Administrative ~aw Judges
Federal Mine Safety and Health Review Commission
Skyline Tower No. 2, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

632

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

March 31, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket Nos. BARB 78-306 through
78-333
BARB 78-609-P
BARB 78-609-P(B)
BARB 78-610-P

v.
SCOTIA COAL MINING COMPANY

DECISION
We granted interlocutory review to determine whether the administrative law judge abused his discretion when he denied the parties'
motion for a stay of all proceedings until completion of a trial of
criminal charges against Scotia Coal Mining Company in federal district
court.
Scotia has sought Commission review of twenty-eight withdrawal
orders, and the Secretary has sought the assessment of penalties for the
alleged violations associated with the withdrawal orders. The
violations are apparently alleged to have occurred in February and March
of 1976. The withdrawal orders were issued under the Federal Coal Mine
Health and Safety Act of 1969, 1/ in March of 1978 as a result of an
investigation and inspection precipitated by two explosions at Scotia's
Mine in Ovenfork, Kentucky, in March of 1976. In August of 1978, the
Secretary of Labor initiated the penalty cases and they were consolidated with the withdrawal order cases the next month.
On September 8, 1978, the Secretary filed a motion with the
administrative law judge to stay proceedings during the Justice
Department's investigation of the mine accidents. ·The judge granted a
stay until February 1, 1979. On January 31, 1979, the Secretary filed a
motion to continue the stay because the U.S. Attorney had informed him
that a grand jury would be convened to investigate the Scotia disaster.
The stay was extended until June 1, 1979; and again until July 15, 1979.
After the grand jury handed down an indictment, the judge granted
another extension of the stay until October 15, 1979. The judge found
that only five of the twenty-eight administrative cases are directly
related to the allegations in the indictment, but was "reluctantly
persuaded" that the stay of all proceedings should be continued. He
noted the criminal trial was expected to begin between September 15 and
October 15, 1979.

1./

30 U.S.C. §801 et~· (1976) (amended 1977) ["the 1969 Act"].

633

On October.10, 1979, the Secretary again moved for an extension of
the stay. Scotia joined this motion on October 24, 1979. On October
25, 1979, the judge issued an order staying eight of the cases, but
returning twenty to the active trial docket. The judge first determined
that only eight administrative cases are "factually related" to the
criminal charges. He noted that the grand jury had completed its work
and the administrative proceedings could not be used to assist the grand
jury. He found that problems centering on the right to avoid selfincrimination under the Fifth Amendment will not arise in the criminal
case since no natural persons had been indicted. The judge also stated
that procedural devices such as particularized requests for a stay of
discovery are available to the parties to protect their interests and
ensure fairness of both the administrative and criminal proceedings.
Finally, the a~ministrative law judge noted that pretrial publicity, if
it occurred, would not necessarily be prejudicial to the criminal
defendants.
The parties then filed petitions for interlocutory review of the
judge's ruling. We granted the petitions on November 30, 1979, and
suspended all proceedings. ]:_/
The parties have presented several arguments that the judge abused
his discretion. Both express concern that problems in the criminal
proceedings could arise from pre-trial publicity. The parties fear that
publicity stemming from the administrative cases may, if they are heard
first, jeopardize Scotia's right to a fair criminal trial. The parties
have overlooked that the federal district c~urts have the tools to
mitigate any prejudicial effects of any publicity. See DeVita v. Sills,
422 F.2d 1172 (3rd Cir. 1970). In addition, the administrative law
judge can take preventive measures short of a complete stay.
Both parties argue that the judge should have stayed the cases
because differences in criminal discovery rules and Commission discovery
rules will cause confusion, and possibly improper access to information
by the prosecutor and defendants in the criminal case. The administrative law judge stated in his order:
It is not apparent from the face of the charges or
the parties' pleadings that the other 20 violations
[those not stayed] present such an identity of issues
and evidence with the criminal charges that any discovery problems may not, upon seasonable application
by either party, be dealt with by the issuance of
appropriate protective orders.
]:_/
The judge thereafter filed a "Supplement and Errata" to his order.
We grant Scotia's motion to strike the supplemental material. We did
not consider that material during our interlocutory review.

634

It is clear from the judge's order that he carefully considered the
points presented by the parties. Neither party at this time has offered
any evidence of actual harm to the criminal proceedings and the judge
stands ready to meet those problems if they do become concrete.
Further, the parties have failed to consider the public interest in
the expeditious resolution of penalty cases. This oversight on the
Secretary's part is especially unfortunate, l_/ and prevents us from
according his views the deference to which they might otherwise be
entitled. !±_/ Congress has forcefully expressed its desire for the
expeditious adjudication of penalty cases, and its dissatisfaction with
the length of time between the occurrence of violations and the payment
of penalties under the 1969 Act. 21 As the judge recognized, there is a
substantial public interest in the expeditious determination of whether
penalties are warranted.
Finally, we reject the parties' contentions that the administrative
law judge acted arbitrarily and capriciously in refusing to continue to
stay all proceedings in the absence of circumstances substantially
different from when he issued his stay of all cases until October 15,
1979. The administrative law judge's order indicates he carefully
reviewed the facts before him at the time of the motion and concluded
that returning twenty cases to the active trial docket was appropriate
and would not interfere with the criminal proceedings. ~/

l_/

The Secretary in his brief states, "The Secretary, prosecutor of
the administrative cases, desires that the twenty-eight alleged
violation [sic] and civil penalty cases be stayed. Balanced with this
is Scotia's like desire to stay those cases. There are no countervailing factors balanced on the other side." (Emphasis added.)
Br. at 12.
!±_/
Old Ben Coal Company, 1 FMSHRC 1480, 1484-1485, 1 BNA MSHC 2177,
2179-2180, 1979 CCH OSHD ,123, 969 (1979); and Helen Mining Company, 1
FMSHRC 1796, 1798-1801, 1 BNA MSHC 2193, 2194-2196, 1979 CCH OSHD
,124,045 (1979).
21 See S. Rep. No. 95-181, 95th Cong., 1st Sess. at 15-16 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 603-604 (1978).. The Senate Committee that
drafted the bill from which the Federal Mine Safety and Health Act of
1977 was largely derived stated that "to effectively induce compliance,
the penalty must be paid by·the operator in reasonably close time
proximity to the occurrence of the underlying violation." S. Rep. at
16, 1977 Legis. Hist. at 604.
6/
The Secretary raised an argument in his brief that was not raised
in his petition for interlocutory rev~ew or before the judge. He
claims that harm may come to the administrative penalty cases if all are
not heard together. Br. at 19-26. Since he did not present this argument
to the administrative law judge, we do not pass upon it. See Ora Mae
Coal Co., 1 FMSHRC 1963, 1 BNA MSHC 2258, 1979 CCH OSHD ,[24,126 (1979),
We also intimate no view whatsoever on the matter discussed in footnote
10 of the Secretary's brief.

635

The administrative law judge carefully weighed the parties
interests and the public interest. We cannot say that he abused his
discretion and we therefore leave his order undisturbed.
Accordingly, the case is remanded to the administrative law judge.
Our order of November 30, 1979, suspend" g,the proceedings, is vacated.

636

Distribution
Robert I. Cusick, Esq.
Tarrant, Combs, & Bullitt
2600 Citizens Plaza
Louisville, KY 40202
Thomas A. Mascolino, Esq.
Page H. Jackson, Esq.
Ronald E. Meisburg, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA
22203
President of Scotia Employees Assoc.
P.O. Box 447
Cumberland, KY 40823
Foster D. Arnett, Esq.
Arnett, Draper & Hagood
United America Bank Bldg.
Suite 1212
Knoxville, TN 37902
·Richard C. Ward, Esq.
Craft, Barrett, Hayes & Ward
P.O. Drawer 1017
Hazard, KY 41701
Administrative Law Judge Joseph B. Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

637

Administrative law Judge Decisions

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

MAR 0 .4 19.
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,

v.
DUVAL CORPORATION,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-194-M
ASSESSMENT CONTROL NO. 02-00852-05005-F
MINE:

SIERRITA MILL

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

DECISION
APPEARANCES:
Mildred L. Wheeler, Esq., Office of Daniel W. Teehan, Regional Solicitor,
Office of the Solicitor, U. S. Department of Labor, 11071 Federal Building,
450 Golden Gate Avenue, Box 36017, San Francisco, California 94102
for Petitioner
Walter D. Ellis, Esq., Houston, Texas, and Michael A. Lacagnina, Esq.,
Tucson, ·Arizona, for Respondent.
Before:

Judge John J. Morris
STATEMENT OF THE CASE

Petitioner seeks to assess a penalty against a mine operator for the activities
of a contractor.

These proceedings arise under the Federal Coal Mine Health and

Safety Act of 1969, 30 U.S.C. §801 et~·· (amended 1977).
ISSUE
The single issue here centers on whether a mine operator is liable under the
Act for the activities of an independent contractor. l./

J../

There is a paucity of evidence as to the exact relationship between the mine
operator and the contractor.

641

FINDINGS OF FACT

From the uncontroverted evidence, I find the following facts.
1.

Cimetta Engineering and Construction Company installed, under

contract, a pipeline for Duval Corporation, a mine operator (Tr 9).
2.

The installation did not involve Duval employees nor any mining

activities (Tr 27).
3.

Four Cimetta employees maneuvered pipe under three overhead power

transmission lines (Pl, R2).
4.

While holding a steel choker, a Cimetta employee was electrocuted

when contact was made with the power line by the Cimetta crane (BP-1).
CONTENTIONS

2/ imposes
.

Duval argues that a finding of a violation of 30 CFR 55.12-71 -

absolute liability without fault; that such a result violates the Act, Congressional intent, and basic fairness.

Further, Duval asserts the dissenting opinion

of Commissioner Backley in Old Ben Coal Company

1/ is more logical than the

majority opinion and Duval argues the dissenting opinion should be followed.

2/

The cited regulation provides as follows:
55.12-71 Mandatory. When equipment must be moved
or operated near energized high-voltage powerlines
(other than trolley lines) and the clearance is less
than 10 feet, the lines shall be deenergized or
other precautionary measures shall be taken.

3/

Secretary of Labor, Mine Safety and Health A~ministration (MSHA) v. Old Ben Coal
Company VINC 79-119.

642

Finally, Duval. contends Judges should achieve justice.

In short, a Judge

should not be bound by considerations of administrative convenience which Duval
argues forms the basic rationale for the Commission decision in Old Ben Coal
Company.
CONCLUSIONS OF LAW
The concept urged by Duval would result in the undersigned overturning a
controlling Review Commission decision.

I lack such authority.

A fdilure to follow

precedent could only result in adjudicatory chaos with as much different applicable
law as there are individual Judges.
It is clear that an administrative law judge must follow the rules and
?recedent of the Commission, Secretary of Labor, Ray A. Jones vs. James Oliver et al
~ORT

78-415, March 1979.
On the authority of Old Ben Coal Company and other Commission cases, !!_/ I

1ffirm the citation.
Based on the foregoing findings of fact and conclusions of law, I enter the
following:
ORDER
Citation 376894 and the proposed penalty of $5,000 are affirmed.

f/

Republic Steel Corporation IBMA 76-28, April, 1979; Kaiser Steel Corporation
DENV 77-13-P (May 1979); Monterey Coal Company HOPE 78-469 (November 1979).

643

DISTRIBUTION:
Mildred L. Wheeler, Esq., Office of Daniel W. Teehan, Regional Solicitor,
Office of the Solicitor, U. S. Department of Labor, 11071 Federal Building,
450 Golden Gate Avenue, Box 36017, San Francisco, California 94io2
Walter D. Ellis, Esq., Duval Corporation, Pennzoil Place, P.O. Box 2967,
Houston, Texas 77001
Michael A. Lacagnina, Esq., BILBY, SHOENHAIR, WARNOCK & DOLPH, P.C.,
Ninth Floor, Vall~y National Building, 2 East Congress Street, Tucson,
Arizona 85701

644

FEDERAL MINE SAFETY AND· HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520 3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

703-756-6230

MAR o S \980

Civil Penalty Proceeding

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

Docket No. DENV 78-579-PM
AC No. ~2-01035-05001
El Mirage Plant No. 6

Petitioner
v.

UNION ROCK AND MATERIALS CORPORATION,
Respondent
DECISION
Appear.ance s:

Malcolm R. Trifon, Esq., Trial Attorne,y, Office of the
Solicitor, u.s. Department of Labor, ~an Francisco,
California, for Petitioner;
Gary Houston, Esq., Phoenix, Arizona, for Respondent.

Befor.e:

Judge Fauver
Findings of Fact

This case was brought by the Secretary of Labor under section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~.,
for assessment of civil penalties for alleged violations of mandatory safety
standards. The case was heard at Rapid City, South Dakota, on August 13,
1979. Both sides were represented by counsel. Only the Respondent has
submitted proposed findings, conclusions and a brief.
Having considered the record as a whole, I find that the preponderance
of the reliable, probative, and substantial evidence establishes the
following:
·
1. At all pertinent times, Respondent, Union Rock and Materials
Corporation, operated a sand and gravel plant, known as the El Mirage Plant
No. 6, in Maricopa County, Arizona, which produced sand and gravel for ~ales
in or affecting interstate commerce.
2. Respondent's sand and gravel plant processed material that would
eventually be used as fill by its customers. The material would be removed
from a riverbed, screened or sized, and stockpiled for pick up. The plant's
-equipment ·included about 15 conveyor belts that were arranged in various

645

alignments (pla~s) depending on processing requirements. The length of time
a plant would use
any one alignment plan varied with the particular job.
3. Some of the conveyors transported sand; others carried gravel. One
of the conveyors at Respondent's wash plant was a sand reject conveyor that
ran beneath the wash plant and caught sand as it was separated from the
gravel passing above.
4. The sand reject conveyor would normally be energized by conductors
housed in the motor junction box ("J-Box") that was located on top of the
conveyor, about 10 feet off the ground. The J-BoX' protected splices in the
power conductors from dust, water and other foreign objects. The wires
inside the box were well taped to prevent a short. Deterioration of the
insulation was unlikely.
5. Before a plant could become fully operational, a testing phase was
required to test the belts~ rotation and alignment. During normal production, the plant would run 180 to 200 tons per hour but much less material
(about 1 ton) would be used to test a new alignment plan. Testing one belt
would take from 15 minutes to 1 hour, however the testing phase for the
whole plant varied with the number of conveyor belts. Testing would not
begin until all the belts had been set up.
6. Except for purposes of testing, the conveyors would normally not
be operated without guards around the tail pulleys and belt drives. When
the belts were being aligned, the guards would normally be removed to allow
adjustments to be made more easily.
7. On March 16, 1978, federal inspectors Daryl McPherson and Clarence
Ellis, accompanied by the plant superintendent, Ralph Watson, inspected
Respondent's wash plant. Inspector McPherson observed that the V-belt drive
on the sand reject conveyor was,unguarded, and issued a citation charging
a violation of 30 C.F.R. § 56.14-6. The citation read in part: "A guard
was not provided for the V-belt drive of the sand reject belt first stage.
Sand wash plant." Only the V-belt drive on,the sand reject conveyor was
unguarded.
8.

The cited condition was abated in 1-2 hours by installing a guard.

9. Six to 7 days before the inspection', the plant's component parts,
including the conveyor belts, had been moved from another area in the plant
and were still in the process of being set up at the new location at the
time of the inspection. The sand reject conveyor was installed about 3 days
prior to the inspection. When the insp~ctors arrived, most of the conveyor
belts had been runing for about 1 hour to check their rotation and alignment.
The inspector observed that material coming off the end of the belt was
creating a small stockpile. Although this might have indicated the plant
was in operation, he conclud'ed that the belt was only run for test purposes •
The plant became fully operational the following day.

646

10. Inspector McPherson also observed that the cover to the J-Box was
missing, and issued a citation charging a violation of 30 C.F.R. § 56.12-32.
The citation read in part: "The motor junction box on the first stage of
the sand reject belt was not provided with a cover." The cited condition
was abated in 1-2 days.
11. The condition in Finding 10 created the possibility that one of
the power conductors could have loosened, touched the frame of the conveyor,
energized the whole conveyor system, and endangered anyone coming into
contact with the system.
12. The inspector also observed that the tail pulley of the sand belt
was not guarded, and issued a citation charging a violation of 30 C.F.R.
§ 56.14-1.
The citation read in part: "The tail of the first stage of the
sand belt was not provided with a guard to prevent persons from coming in
contact with the tail pulley. Tail pulley is app. 4-1/2 ft. above surface
leve 1." The condition was abated in 1-2 days •
0

13. The condition in Finding 12 created a hazard that a man might be
caught in, or fall into, the tail pulley. This area was traveled frequently
by clean-up men and maintenance personnel.

14. The inspector also charged Respondent with a violation of 30 C.F.R.
56.12-8. The citation read in part: "The strain relief fitting for the
p~wer conductor feeding the screens was not being used properly.
J-Box was
mounted on the first belt feeding the dry plant." The inspector observed
that the large insulation with strain relief clamps around it was about
5 feet long and hanging loosely, leaving three insulated wires hanging in
the strain relief.
§

15. The inspector believed the relief cable had been slackened to
allow the conveyor to match up with the wash plant.
The inspector's statement read in part: "The plant was installed recently and the
electrician pulled the wire out of the relief clamp. A proper check should
have been made before energizing the equipment."

16. The inspector believed that vibrations in the plant could have
caused the cable retention to loosen allowing one of the power conductors
to become jarred loose in the junction box. This could have caused the
splices on the power conductors to separate, resulting in energizing the
conveyor system and endangering anyone coming into contact with it.
17. At the time of the inspection, the wire was not energized and
served no function; instead of power going from the generator to the motor
by way of the junction box, it came directly from the generator van switch
box to the motor. This was considered a more efficient and practical way
of providing power.
The alternative was to string an extra wire,
about 60 feet long, to the J-Box.

18. The electrician, Lee Graybill, abated the condition by placing
the power conductor into the strain relief clamp.

647

19. The company's safety program had been in existence since 1962.
That program consisted of having monthly supervisors' safety meetings;
annual safety meetings; safety committee meetings twice a month; and safety
talks at least once per week by the safety foreman. There was also two-way
radio communication when radio safety bulletins were put on at least two or
three times a day.
20. The last accident resulting in lost man-hours was in July, 1974.
Prior to the citations, the company had gone 3 million hours straight without
a mishap.
DISCUSSION
Citation Nos. 371141 and 371142
On March 16, 1978, Inspector McPherson charged Respondent with a violation of 30 C.F.R. § 56.14-6, which proyides: "Mandatory. Except when testing the machinery, guards shall be securely in place while machinery is
being operated." The inspector observed that a guard was not provided on
the V-belt drive of the sand reject conveyor in Respondent's wash plant.
The inspector also charged Respondent with a violation of 30 C.F.R.
which provides: "Mandatory. Inspection and cover plates on
electrical equipment and junction boxes shall be kept in place at all times
except during testing or repairs." He observed that the motor junction box
cover on the first stage of the sand reject conveyor was missing.
§ 56.12-32,

The basic issue as to both of these citations is whether the testing
exceptions to the mandatory requirements of each of the cited standards
apply in this case.
The Respondent contends that at the time of the inspection, the plant
was in a testing phase. Only 6 to 7 days earlier, the plant's 15 conveyor
belts were moved from another location at the plant and were still in the
process of being set up. Respondent states that when the inspectors arrived,
most of the conveyor belts had been operating only about 1 hour just to test
their rotation and alignment. No material had been processed during the
testing phase, although some material had been run for purposes of testing.
Although the Secretary has not responded to these contentions, the
inspector did state that he had reason to believe the plant was processing
material. His conclusion is supported only by the small amount of material
he saw stockpiled at the end of one of the belts and by his opinion that it
would be uneconomical to test for more than 3 days.
I find that the plain meaning of the provision in section 56.14-5,
"[e]xcept when testing machinery," refers to the testing or repairing of the
equipment's mechanical parts due to a malfunction. Respondent asserts that
the exception to the requirement for guards applies when a whole plant is in
a testing phase designed to align the conveyor belts and to check their

648

rotation. I conlcude that "testing machinery" is not synonomous with a
"testing phase," because the first situation involves curing a mechanical
malfunction while the second involves assuring the smooth running of the
complete operation. In the latter instance, which could last as long as
6 to 7 days, the moving parts of the conveyor would be in operation creating
a hazard which the safety standard is designed to prevent. However, when
a piece of equipment is malfunctioning, the guards would have to be removed
only for short periods of time while making the repairs.
I reach the same. conclusion as to the part of section 56.12-32 that
reads "except during testing or repairs." "Testing or repairs" does not refer
to the testing phase of setting up a plant, but to testing the electrical
connections or to•splicing the wires.
Citation No. 371143
During the same inspection, Inspector McPherson charged Respondent with
a violation of 30 C.F.R. § 56.14-1, which provides: "Mandatory. Gears;
sprockets; chains; drive, head, tail, and takeup pulleys; flywheels;
couplings; shafts, sawblades; fan inlets; and similar exposed moving machine
parts ·which may be contacted by persons, and which may cause injury to persons, shall be guarded." The inspector observed that' the tail pulley of the
first stage of the sand belt conveyor was not provided with a guard.
Respondent asserts that since 30 C.F.R. § 56.14-1 contains an exception
for "testing," and since both section 56.14-6 and section 56.14-1 fall under
the same heading, "Use of Equipment," the exception also applies to the
latter safety standard which is the subject citation. I conclude that the
exception is neither expressly included nor implied in section 56.14-1.
Citation No. 371144

§

Inspector McPherson also charged Respondent with a violation of 30 C.F.R.
56.12-8, which provides:
Mandatory. Power wires and cables shall be insulated
adequately where they pass into or out of electrical compartments. Cables shall enter metal frames of motors, splice
boxes, and electrical compartments only through proper fittings. When insulated wires, other than cables, pass through
metal frames, the holes shall be substantially bushed with
insulated bushings.

The inspector observed that the strain relief fitting for the power conductor feeding the screens was not being used properly.
Respondent contends that the loose power conductor.observed by the
inspector was neither energized nor intended to become energized; and that
since the conveyors were relocated, the conductor served no function.

649

Respondent contends that the safety standards included under section 56.12
are only applicable when the cables are subject to being energized or are
in fact energized.
I conclude that a reasonable interpretation of section 56.12-8 requires
a finding that the power conductors be capable of cond~cting electricity
before the standard can apply. Respondent demonstrated that an alternative
method of energizing the screens was being used, making the loose wire
observed by the inspector nonfunctional. Under these circumstancs, I find
that Respondent did not violate section 56.12-8 as alleged in the citation.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the parties and the
subject matter of the above proceeding.
2. Respondent violated 30 C.F.R. § 56.14-6 by failing to provide guards
on the V-belt as alleged in Citation No. 371141. Based upon the statutory
criteria for assessing a civil penalty for a violation of a mandatory safety
standard, Respondent is assessed a penalty of $28 for this violation.
3. Respondent violated 30 C.F.R. § 56.12-32 by failing to provide a
cover on the motor junction box as alleged in Citation No. 371142. Based
upon the statutory criteria for assessing a civil penalty for a violation of
a mandatory safety standard, Respondent is assessed a penalty of $30 for this
violation.
4. Respondent violated 30 C.F.R. § 56.14-1 by failing to provide a
guard around the tail pulley as alleged in Citation No. 371143. Based upon
the statutory criteria for assessing a civil penalty for a violation of a
mandatory safety standard, Respondent is assessed a penalty of $90 for this
violation.
5. Petitioner did not meet its burden of proving a violation as alleged
in Citation No. 371144.
ORDER
WHEREFORE IT IS ORDERED that (1) the charge based on Citation No. 371144
is DISMISSED, and (2) Union Rock and Materials Corporation shall pay the
Secretary of Labor the above-assessed civil penalties, in the total amount
of $148 within 30 days from the date of this decision.

WILLIAM FAUVER, .JUDGE

650'.

Distribution:
Malcom Trifon, Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 11071 Federal Building, 450 Golden Gate
Avenue, San Francisco, CA 94102 (Certified Mail)
Gary w. Houston, Esq., Counsel for Union Rock and Materials Corporation,
1000 Kiewit Plaza, Omaha, NE 68131 (Certified Mail)

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

MAR O 5 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. KENT 79-52
Assessment Control
No. 15-04053-03004 V

v.
Mine No. LA-6
RITA COAL COMPANY,
Respondent
DECISION
Appearances:

William F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Lee F. Feinberg, Esq., Spilman, Thomas, Battle &
Klostermeyer, Charleston, West Virginia, and
William T. Watson, Esq., Pikeville, Kentucky,
for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to notice of hearing issued September 7, 1979, as amended,
October 22, 1979, a hearing in the above-entitled proceeding was held on
November 8, 1979, in Pikeville, Kentucky, under section 105(d) of the Federal
Mine Safety and Health Act of 1977.
Upon completion of the evidence presented by the parties, I rendered the
bench decision which is reproduced below (Tr. 218-228):
This proceeding involves a petition for an assessment of penalty filed on June 15, 1979, by the Secretary
of Labor, alleging a violation of 30 CFR 75.200 by Rita
Coal Company.
The issues, of course, in any civil penalty case
are whether a violation occurred, and if so, what civil
penalty should be assessed under the six criteria set
forth in Section llO(i) of the Federal Mine Safety and
Health Act of 1977.
The first point that has to be determined is
whether a violation of Section 75.200 occurred. The
violation that was alleged was set forth in Order of
Withdrawal No, 72701 dated October 31, 1978, alleging
that the roof control plan was not being followed, and
that safety posts had not been installed in the working
face of the number 8 pillar block before roof bolting
had started.

652

MSHA v. Rita Coal Company, Docket No. KENT 79-52
I find that a violation of Section 75. 200
occurred, because respondent's roof control plan
provides in Sketch A of the roof control plan, which
is Exhibit 2 in this proceeding, that safety posts
shall be set as shown on that sketch before roof
bolting is started.
Based on certain credibility determinations that I
shall hereinafter explain, I find that the safety posts
were not installed, and, therefore, that there was a
violation of Section 75.200.
Perhaps before explaining the basis for my finding,
I should indicate that I am denying the Motion to Dismiss
made by respondent on the ground that I believe the
inspector heard enough and saw enough to support his
finding that violation of Section 75.200 had occurred.
We have testimony in the case by the inspector
that he heard the sound of a roof bolting machine installing bolts as he came into the mine, and we have his
testimony that when he was close to the working face,
he observed the section foreman make a movement toward
the men who were working in the face area, and by moving
his cap light back and forth, give a signal that they
should stop working. At that signal, the inspector
states that the roof bolting machine was turned off,
and when the inspector got to the face area, he found
that no safety posts had been set as required by the
roof control plan.
Respondent'~ section foreman testified that it was
his practice always to signal the men on his section
to stop working when an inspector appeared, so that the
inspector, at his option, could watch whatever activities
he wished to see performed. The section foreman also
stated that the men satisfactorily explained to him, that
is the roof bolter and his helper, their reasons for not
having safety posts erected at the time the inspector
came upon the scene.

The sectio~ foreman's explanation was that the
roof bolter had observed some loose draw rock on the
left side of the entry, and that he was in the process
of barring that down when the inspector arrived, and
although he had set safety posts before he started roof
bolting, he took them down in order that he might get
the loose rock down before finishing the installation
of the roof bolts.
The roof bolter himself testified that he had
installed two roof bolts on the left side, which

653

MSHA v. Rita Coal Company, Docket No. KENT 79-52
on the sketch in the exhibit 2, sketch
roof bolts 1 and 2.

A, would be

The roof bolter stated that he had then decided
to bar down the loose roof which was on the left side,
between those two roof bolts, and the working face.
Before he did that, he took down the temporary supports
which he had already put up.
After listening to the testimony of the roof
bolter and the section foreman, I conclude that there are
a number of discrepancies in their testimony, which
causes me to give their testimony less credibility than
I do that of the inspector.
Among other things that disturbed me about the [in-]
consistency of their testimony, was the fact that the
section foreman, for example, said that the temporary
supports were lying beside the roof bolting machine,
whereas the roof bolter, who was there and who was
doing the work, stated that two of the temporary
supports were on the machine, and that the third one
was being put on the machine when the inspector got
there. The inspector had testified that the temporary
supports were on the roof bolting machine. I find that
the section -- that the roof bolter is consistent with
the inspector's testimony, in that respect.
The other aspect of the roof bolter's testimony,
which is inconsistent with that of his section foreman,
is that the section foreman said that there was a lot
of material on the left side of the entry, it was too
thick for the roof bolting machine to go up over it· and
bolt, whereas the inspector said that there was very
little material on the floor, on the left side, and the
roof bolter agreed with the {nspector on that.
Additionally, the roof bolter stated that he had
decided to knock out three temporary supports in order
to bar down some loose material which was located solely
on the left side of the entry, and inby the two roof
bolts which he had already installed.
Now, the roof bolter had indicated it was always
his practice to follow the roof control plan precisely,
and that he always installed the roof bolts from left
to right. Now, that being the case, there was no reason
for him to be worrying about loose roof inby the first
and second roof bolts which he had already installed,
until he had already installed roof bolts three and
four, because he didn't indicate that there was any

654

MSHA v. Rita Coal Company, Docket No. KENT 79-52
loose roof at all over at the place where roof bolts
three and four would have been installed.
Therefore, there is no reason for him to have
taken down those temporary supports until after he had
put in roof bolts 3 and 4. Then at that point he would
have been moving forward and could have been worried
about taking down loose roof, if ·there· had.been any.in
advance of the roof bolts that he would have put in
Nos. 5, 6, 7, and 8.
The roof bolter stated that it was his practice to
sound the roof when he was still under supported roof
in order to determine whether to bar down any loose roof.
Consequently, it is my conclusion that the roof
bolter never had put up any temporary supports, and
had put in two bolts without any temporary supports,
and that when the inspector came on the scene, he
endeavored to justify the fact that he had not put up
any temporary supports.
Consequently, those are the primary reasons for
my belief that the inspector's testimony is entitled
to a greater amount of weight than the section foreman's
or the roof bolter's.
Having found that a violation occurred, it is
necessary now to consider the six criteria. It has been
my consistent practice to consider from the standpoint
of history of pre~ious violations, whether an operator
has violated a given section of a regulation a number
of times, or any time prior to the violation alleged
in the case before me.
In this instance, the parties stipulated before
the hearing began that the respondent had not previously
violated Section 75.200 except for a couple of violations
which were obser~ed by the inspector during the same
inspection which was here involved.
In light of the fact that those violations were
practically simultaneous with the one that is here before
me, and, ther~fore, would have given the operator no
opportunity to perhaps prevent additional violations
before the one before me was observed, I find that there
is no history of previous violations which should be
taken into consideration.
Consequently, the penalty will neither be increased
nor dec.reased under that criterion. The question of the

655

MSHA v. Rita Coal Company, Docket No. KENT 79-52
operator's size is also the subject of some stipulations
by the parties. First of all in 1978, the No. 3 or
LA-6 Mine here involved, produced about 25,000 tons of coal,
which i f divided by 250 days of production would only
be about 100 tons a day. According to the testimony of
Mr. Childress, the Rita Coal Company is owned by Russell
Fork Company, and that entire group of companies, in
1978 produced 256,000 tons of coal, which would amount
to about 1,024 tons per day.
The evidence also indicates that the mine which
is before me today, or in this proceeding, is not now
in operation because of the simple economic fact that
the present market is not sufficient to justify the
costs which the company has recently experienced for
producing coal. The fact that· Russell Fork is in turn
owned by A.T. Massey enables the Rita group of mines to
hold onto their reserves at about a loss of $100,000 a
month, in hopes that the market will someday be profitable
enough that it can resume coal operations.
Since the situation as it now exists is that A.T.
Massey is having to pick up the tab for all of the
holding operations, that is holding onto the reserves
and keeping the mines in such a fashion that they could
be operated again, it is quite obvious that we have an
uneconomic enterprise before us. While I agree with
Mr. Taylor and Mr. Feinberg also, as indicated, that
A.T. Massey would really pay any penalty that might be
assessed, I still think that under the criterion of
whether the payment of penalties would cause the operator
to discontinue in business, that some weight should be
given to the fact that we are c.onfronted here with an
uneconomic situation, and also, I should give some
consideration to the fact that even in 1978 when the
instant violation occurred, Rita Coal Company experienced a loss of between $400,000 and $700,000.
So, although I find that this is a moderate size
business, and while I do not think that any one penalty
would cause A.T. Massey to cease holding onto its
mines in the hope that it might, within a reasonable
period, have a profitable operation, again, I still
am giving some weight to the fact that at this point in
time it is not a -- certainly a remunerative operation.
It was stipulated, I believe, and if it were not,
it is certainly shown by the short time that it took the
operator to comply with the section here involved, after
it was noted by the inspector, the evidence indicates
that there was at least a normal good faith effort to

656

MSHA v. Rita Coal Company, Docket No. KENT 79-52
achieve compliance, so that factor should also be
considered in assessing a penalty.
The two remaining criteria which are tp be considered
are first as to how serious the violation was, and on that,
the inspector considers the failure to install temporary
supports to be a serious violation; on the other hand,
the inspector did not see any loose roof on the right
side where the bolts were still to be installed,
and, consequently, I believe that the violation was not
of an extreme gravity, and in other words, it is not
of such a hazardous nature that I feel that a really
large penalty would be required.
From the standpoint of negligence, I have constantly
run into situations where I have every reason to
believe and find that much to my amazement that the very
men who are doing the installation of roof bolts are
failing to put in the temporary supports. I have even
had cases involving fatalities in which the very men who
were supposed to be putting up temporary supports, didn't
do it. And they were killed, simply because they didn't
put up supports.
This to me, is always astounding, but it seems to
continue, so I find that it is gross negligence for
men to work in a coal mine and fail to take care_of
themselves properly, and that is what section foremen
are supposed to do, and yet this section foreman was
out worrying about the the fact that there was some
moisture on the section, and wasn't even around to
take a methane check before this roof bolting machine
began to operate. So, he didn't know what his men were
doing, and I think that was gross negligence on his part.
If it were not for the fact that I have found that
this is an uneconomic enterprise at the moment, I would
be inclined to assess a very large penalty, but taking
that factor into consideration, I believe that a penalty
of $1,000 is reasonable in the circumstances.
Ultimate Findings and Conclusions
(1) Respondent should be assessed a civil penalty of $1,000.00 for
the violation of section 75.200 cited in Order of Withdrawal No. 72701
dated October 31, 1978.
(2) Respondent, as the operator of record of the LA-6 Mine, is subject to the Act and to the regulations promulgated thereunder.

657

MSHA v. Rita Coal Company, Docket No. KENT 79-52
WHEREFORE, it is ordered:
Respondent, within 30 days from the date of this decision, shall pay
a civil penalty of $1,000.00 for the violation described in paragraph (1)
above.

~C.931P#rr

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distr.ibution:

William F. Taylor, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Lee F. Feinberg, Esq., Attorney for Rita Coal Company, Spilman, Thomas,
Battle & Klostermeyer, P.O. Box 273, Charleston, WV 25321 (Certified
Mail)
William T. Watson, Esq., Counsel for Rita Coal Company, P.O. Box 2805,
Pikeville, KY 41501 .<certified Mail)

658

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

191)

WR 1
PEABODY COAL COMPANY,

Contest of Order of Withdrawal
Contestant
Docket No. CENT 79-335-R

v.

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

Order No. 793364
July 23, 1979
Respondent
Tebo Surface Mine

UNITED MINE WORKERS OF AMERICA
(UMWA),
Respondent
DECISION
Appearances:

Thomas R. Gallagher, Esq., St. Louis, Missouri, for Contestant;
Inga Watkins, Esq., Office of the Solicitor, U.S. Department
of Labor, for Respondent MSHA;
Mary Lu Jordan, Esq., Washington, D.C., for Respondent UMWA.

Before:

Judge Melick

This case is before me under section lOS(d) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 u.s.c. § 801 .!:! ~··upon the application of Peabody Coal Company (Peabody) to contest an order of withdrawal
issued by the Mine Safety and Health Administration (MSHA) under section
104(d)(l) of the Act.];_/ A hearing was held on November 7 and 8, 1979, in
Kansas City, Missouri.

J./

Section 104(d)(l) of the 1977 Act provides as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable
failure of the such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such

659

The substantive issue is whether there is sufficient evidence to support
the validity of Order of Withdrawal No. 793364 issued to Peabody on August 2,
1979. Peabody alleges that the order was invalid because there was insufficient evidence of the violation charged in the order (mandatory standard
30 C.F.R. § 77.404(a)) and that in any event there was insufficient evidence
of unwarrantable failure on the part of Peabody to comply with that standard.
The parties stipulated in this case as to the existence of a valid underlying section 104(d)(l) citation; a condition precedent to the issuance of
a withdrawal order under section 104(d)(l).
The order in this case was triggered by an alleged violation of mandatory standard 30 C.F.R. § 77.404(a) in that "the transmission [in the No. 10
D-9 bulldozer] would not go into gear at times and whe.n it would it would
lurch forward or backward, particularly when pushing down an incline at the
reclamation site." The cited standard requires that "[m]obile and stationary
machinery and equipment shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be removed from service
immediately."
MSHA' s case is b·ased primarily on the testimony of its inspector, James
Jury. I find his testimony to be completely credible and the significant
portions of his testimony to be uncontradicted. Jury arrived at Peabody's
Tebo Surface Mine for a routine inspection on the morning of August 2, 1979.
He was approached by bulldozer operator Eldon Prettyman who reported that
the No. 10 D-9 bulldozer had transmission problems. It would not shift properly, would take a long time to go into gear, and when it went into gear,
would lurch. Jury then received what is commonly known as a "103(g)( 2)" complaint 2/ regarding alleged .safety defects in the No. 10 bulldozer including,
inter alia, a complaint that the transmission was not working properly.
Inspecting the subject bulldozer in the presence of Peabody representatives
Mike Cain, Owen Suhr, and Darrel Montgomery, and union representatives Jack
Sheppard and Elmer Robertson, .Jury found no safety violations. Norman
fn. 1 (continued)
citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation
to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all
persons in the area affected ·by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the Secretary determines that such violation has been abated."
2/ Section 103(g)(2) of the 1977 Act provides in relevant part as follows:
''Prior to or during any inspectfon 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 danger which he has
reason to believe exists in such mine***·"

660

Engelhart, the No. 10 bulldozer operator at that time, then complained to
Jury that "it would not go into gear and it would lurch; and when you are
on an incline changing from one gear to another, it would take a long time
for it to go into gear [and] in the meantime, the machine would keep moving."
Suhr then operated the machine in a brief demonstration on level ground but
no problems were evident. Jury observed, however, that the complaints had
been primarily directed to operations on steep inclines.
There is some disagreement over the exact sequence of events that
followed, however, I do not consider them to be material. Jury recalled that
he next went to the maintenance shop to check the log books and maintenance
records for the suspect bulldozer. Jury found log entries indicating that
the bulldozer had been in the shop on at least two different occasions for
transmis·sion work and that it had been returned to service. Maintenance logs
for the subject bulldozer were introduced in evidence and show that complaints
had in fact been made during the months of May, June, and July 1979, about
transmission shifting difficulties. These entries were not crossed out or
stricken in accordance with company procedure for completion of work, thus
indicating that the repairs had not been performed. Suhr, being in charge
of the shop and these shop procedures, should therefore have known of the
complaints and that the repairs had not been performed. I therefore give
no credence to his testimony that he thought the problems had been corrected.
After examining the maintenance records, Jury consulted briefly with his
supervisor by telephone and thereupon issued the order at bar.
Jury explained at the hearing some of the safety hazards involved in
operating a bulldozer in the condition in which the No. 10 was reported
to him:
When you are pushing down an incline, pushing dirt into
a pit or anywhere where you are on an incline, pushing into
a hole, when you get a blade full of dirt, you have a matter
of seconds to change directions or go into the pit. If your
transmission is faulty, the bulldozer is still moving while
you are trying to change gears.
Also, when a bulldozer is being us~d to push a scraper
or whatever you have, to one approaching the equipment you
are going to push, you have to go up to this slowly rather
than hitting them hard; and if the transmission is lurching you go off slowly and it won't go into gear and it
lurches forward, you are going to be hitting the scraper or
truck harder than you should. Plus, if there is anyone in
front of you, there's a possibility of running into someone or damaging other equipment or machines.
Six bulldozer operators from the Tebo Surface Mine also testified at
the hearing about their experience in operating the No. 10 bulldozer with
its defective transmission. They all described various problems generally
described as diff~culty changing gears, hesitation after the gears had

661

become engaged, and unexpected movement. Their testimony, in significant
respects, is uncontradicted and is fully corroborative of the inspector's
testimony.
Norman Engelhart, who was operating the suspect bulldozer when Jury
made his inspection, testified that it was unpredictable--"[o]ne time it
might go into gear and the next time possibly not, and if it did go into
gear, there was a chance it would lung_e foward." The problem was described
as hesitation after shifting gears and not knowing when the gears would
engage. He recalled that on August 1st or 2nd he was pulling a pump with
the bulldozer and was afraid that the cable might snap because of the
unexpected movement. Engelhart reported these problems to company foreman Darrel Montgomery in May and again when he was pulling the pump. He
explained that the transmission defects affected the ability to rapidly
engage reverse gear so that it was also likely that you would go over
the highwall with the dirt. He explained that the brakes alone would not
pull the machine to safety in such a situation.
Joseph Marme was pushing scrapers and loading dirt with the suspect
bulldozer on July 31, 1979. He too had difficulties because of the hesitation. The bulldozer would not properly disengage from the scraper it was
pushing. It could have broken the "gooseneck" of.the scraper and pushed the
load on top of the scraper operator.
Danny Haggart had operated the suspect bulldozer for 4 or 5 days before
the order was issued in this case (Tr. 113). He explained that "[w]henever
you go to change gears, there would be a hesitation in it and I would have
to work it back and forth, from forward to reverse sometimes to get it into
gear" (Tr. 113). Haggart recalled a situation in which he was pushing dirt
into water and could not shift into reverse. The mud was beginning to give
away when finally the gears e~gaged and he was able to pull out. The brakes
did not prevent him from sinking since the dirt beneath the tracks was also
sliding into 'the water (Tr. 117). He reported the defective operation to
his immediate supervisor, Raymond Roks, "quite a few times," but the problem
had never been corrected.
J. C. Young operated the suspect bulldozer for 4 hours on July 12, 1979,
moving topsoil into a pond. He had difficulty engaging reverse gear and
when it did engage, it jumped or hesitated. He told company official Terry
Rassler of the problem. Eldon Prettyman also had shifting problems with the
suspect bulldozer 2 or 3 weeks before the order was issued while pushing off
a highwall down into a pit of water. He reported this to company official
Happy Gibson and the reclamation foreman.
The uncontested testimony of John Ferguson, a shop mechanic, is also
significant in that it suggests that in spite of the known transmission problems, management returned the bulldozer to service without appropriate
repairs. He was working on another problem with the No. 10 bulldozer in the
latter part of July and was unable to shift it into gear. He was told to
put the bulldozer back "on the line" after getting the track buckled up.
It went out the next morning.

662

The cause of .the transmission problems became evident after it was withdrawn from service. Robert Tallenger, senior mechanic at the mine, examined
the suspect bulldozer on August 3 and could not get it into gear. He found
that the gears in the hydraulic pump were gaulded and prevented the pump from
producing any pressure. After the pump was changed the transmission worked
properly. Donald C. Potts, an experienced mechanic and service manager for
the Fabick Tractor Company, conceded that inadequate oil pressure in the
transmission could cause a delay or hesitation in the movement of the bulldozer until sufficient pressure was built up. This certainly could account
for the difficulties encountered.
In light of the foregoing evidence, I can give but little weight to the
testimony of Michael Cain, Peabody's health and safety supervisor, denying
that he had received any complaints about the transmission prior to
August 2nd. I also accord little weight to the testimony of truck and
tractor manager Gail Gustafson who reportedly checked out the withdrawn bulldozer on the morning of August 3rd. The fact that the bulldozer may have
operated without difficulty during this 45-minute demonstration does not
detract from the described hazards. The hazards were in fact, in my opinion,
even greater because of the unpredictability of the problem.
Within this framework of evidence, I have no difficulty in finding that
Peabody was operating its No. 10 bulldozer in violation of mandatory standard
30 C.F.R. § 77.404(a). Moreover, in light of the overwhelming evidence that
various bulldozer operators had reported the faulty transmission problems to
man..~gement, that the maintenance logs on the No. 10 bulldozer reflected that
similar complaints had been made to the maintenance shop under the direct
supervision of management and had been returned to service without repair,
and the admissions of foremen Montgomery and Suhr that they had known of the
transmission difficulties before the order was issued; I find that the violation was caused by a11 unwarrantable failure of the operator to comply with
the standard. The order of wlthdrawal at bar therefore was, and is, valid.
Peabody has during the course of this case also raised several procedural questions which I shall now dispose of. I held in this case that MSHA
had the burden of going forward to establish a prima facie case and that
Peabody bore the ultimate burden of proof. Peabody disagreed and contended
that the burden of proof should lie with MSHA. The Commission's Rules of
Procedure (29 C.F.R. § 2700.l et seq.) do not directly address this issue.·
My determination in this regarcr-i~however, consistent with my authority
to regulate the course of the hearing under Commission Rule 29 C.F.R.
§ 2700.54(a)(5), 3/ and is in accord with Section 7(d) of the Administrative
Procedure Act, 5 U .S .C. § 556(d). 4/ Cf. Zeigler Coal Company, 4 IBMA 88

3/

29 C.F.R. § 2700.54(a) provides that:
"Subject to these rules, a Judge is empowered to * * * (5) Regulate
the course of the hearing; * * *·"
4/ Section 7(d) of the Administrative Procedure Act states, in pertinent
part, as follows:

663

(1975), interpreting the former burden of proof rule of the Interior Board
of Mine Operations Appeals in light of Section 7(d) of the Administrative
Procedure Act. Moreover, in light of the overwhelming evidence supporting
MSHA's case, the assignment of the burden of proof herein becomes immaterial.
It is only when the evidence is in a state of equipoise that the burden
becomes significant.
Peabody has also suggested that in determining the validity of a withdrawal order issued pursuant to section 104(d)(l) of the Act, such as the
one at bar, I may consider at the hearing only that evidence within the
knowledge of the MSHA inspector at the time the order was issued and not evidence subsequently discovered or obtained. There is no authority for this
proposition and I reject it. The issues before me are whether the violation
charged in the order occurred and whether a special "unwarrantable failure"
finding can be made. In order to make a full and fair determination of
these issues, I must consider all admissible evidence produced at hearing.
I observe, however, that the inspector in this case had ample credible
information at the time he issued the withdrawal order on which to base
that order.
Peabody further argues that an MSHA inspector should not rely solely on
"hearsay and third party statements" in issuing a 104(d)(l) order and cites
the dictum of Judge Koutras in Secretary of Labor (MSHA) v. Pennsylvania
Glass & Sand Corporation, BARB 79-108-PM (presumably at pages 19-30) as
authority. That dictum is, in any event, inapposite to this case. Among
other things, it dealt with a section 104(a) citation and not a section
~
104(d)(l) order. Moreover, Judge Koutras found an exception to his evidentiary requirements where the MSHA investigation follows a section 103(g)
complaint, as occurred herein. Inspector Jury based his decision to issue
the order in this case on unquestionably reliable evidence, including the
company maintenance logs, admissions by company officials and statements by
bulldozer operators, one of which was made in the presence of, and not denied
by, company officials. Moreover, at hearing in t is
contra t to
Pennsylvania Glass & Sand, MSHA produced substant al
e evid
the violation and of "unwarrantable failure "

fn. 4 (continued)
'\
"Except as otherwise provided by statute t
of a rule or
order has the burden of proof. Any oral or dctc
nee may be
received, but the agency as a matter of policy\ all pr vide for the exclusion of irrelevant, immaterial, or unduly repetitious evi e
A sanction
may not be imposed or rule or order issued except on consi ration 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."

664

Distribution:
Thomas R. Gallagher, Esq., 301 North Memorial Road, St. Louis,
Missouri
(Certified Mail)
Inga Watkins, Esq., Office of the Solicitor, u.s. Depar.tment of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street,
NW., Washington, DC 20005 (Certified Mail)

665

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

(703) 756-6210/11/12

MAR 7

1980
Civil Penalty Proceedings

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

Docket No. PENN 79-137
A.O. No. 36-00809-03022V
Newfield Mine

v.
REPUBLIC STEEL CORPORATION,
Respondent

Docket No. PENN 79-138
A.O. No. 36-00973-03019V
Docket No. PENN 79-139
A.O. No. 36-00973-03022V
Docket No. PENN 79-140
A.O. No. 36-00973-03024V
Docket No. PENN 80-34
A.O. No. 36-00973-03026V
Banning Mine

DECISION AND ORDER
The parties move for approval of a settlement of the captioned
matters in the amount of $9,350.00 or 81% of the $11,500.00 initially
assessed for the eight unwarrantable failure violations charged.
For the reasons set forth in the parties' motions and based on
an independent evaluation and de novo review of the circumstances, I
find the.settlement proposed for citation/order numbers 618528, 391918,
618446, 618427, and 618467 are in accord with the purposes and policy
of the Act.
On the other hand, I find the reductions proposed for citation/order
numbers 618460 and 618436, are for the reasons set forth below
unjustified. I further find that not only the reduction but the amount
initially assessed for closure order number 618607 failed to take into
account the fact that three separate and distinct violations of the
standard cited occurred.

666

More specifically, an evaluation of the escapeway violation cited
in unwarrantable· failure citation.618460 shows the amount initially
assessed was proper and that no reduction is warranted. The mitigating
circumstances offered, namely that an able bodied miner could squeeze
through the 42 by 31 inch passage is insufficient to justify a reduction
in view of the requirement that all escapeways be maintained so as to
insure the passage at all times of disabled miners. The panic that would
ensue and the hazard to life and limb that would be created in attempting
to carry a disabled miner through this small opening in the event of a
fire or explosion that created noxious gases necessitating the use of
self-rescuers would present all the ingredients of a mine disaster.
Furthermore, this condition was known and allowed to exist for almost
a month before the inspector discovered it. The fact that the other
return airway could be used would be of little use to miners trapped
and trying to find their way out with a disabled buddy in the smoke-and
confusion of an emergency. For these reasons, I conclude the amount
initially assessed for this violation, $1,000.00, is warranted.
An evaluation of the roof control violation cited in order number
618436 shows that contrary to the parties representations the mechanic
responsible for knocking out the temporary roof supports with a continuous
miner was grossly negligent. Despite this, there is no claim he was
disciplined or otherwise made aware of the seriousness of his actions or
that the operator did not by its silence and acquiescence condone his
flagrant disregard for safe mining practices. Unless and until compliance
is extracted on a voluntary basis from the mine superintendent to the
common laborer, the negligence of each or any of them must be imputed to
the operator. In addition, the operator was independently negligent in
failing to train the mechanic in the proper procedure for moving a
continuous miner without knocking out temporary supports or dangering
off the area after he did knock them out. On the basis of the record
considered as a whole, I conclude the amount initially assessed for this
violation, $1,500.00, is fully warranted.

Finally, a review of the circumstances relating to closure order
618607 shows that for a distance of 200 feet accumulations of loose coal,
coal dust and float coal dust having the explosive potential of black
gun powder was discovered on the floor and ribs of the 1, 2, and 4
entries and crosscuts of the 007 section of the Banning Mine. The 2 and
4 entries were shuttle car haulageways which presented the potential for
an ignition source due to the presence of trailing cables. While spot
rock dust samples were taken, no 75.403 violation was charged. Nevertheless, it is clear that three separate and distinct violations of 75.400
were observed in three separate and distinct physical locations. Further,
they were unwarrantable failure violations that with the exercise of due
diligence the operator could have prevented. I conclude the amount of
the penalty warranted for the three violations cited is $500.00 each
for a total of $1,500.00.

667

Accordingly, it is ORDERED that to the extent indicated the parties'
motion to approve settlement be, and hereby is, GRANTED. It is FURTHER
ORDERED that the operator pay in full settlement of these viol~tions a
penalty of $11,100.00 on or before Frid~y, March 28, 1980 and that subject
to payment the captioned petitions be DISM!7D.

i;;vt1'

~ Joseph B. Kenn
Administrative

Distribution:
David E. Street, Esq., U.S. Department of_Labor, Office of the Solicitor,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
B. K. Taoras, Esq., Coal Mining Division, Republic Steel Corporation,
455 Race. Track Road, P.O. Box 500, Meadow Lands_, PA 15341 (Certified Mail)

668

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

MAR 7
PRINCESS SUSAN COAL COMPANY,
Applicant

1980

22041

Notice of Contest

Docket No. WEVA 79-423-R

v.

Citation No. 0641203

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

Campbell's Creek Surface Mine

Appearances:

C. Lynch Christian, III, Esq., Charleston,
West Virginia, for Applicant
Thomas P. Piliero, Esq., Office of the Solicitor,
U. S. Department of Labor, for Respondent

Before:

Judge Melick
DECISION

On September 4, 1979, Applicant was issued Citation No. 0641203
which charged a violation of Section 103(f) of the Federal Mine Safety
and Health Act of 1977 (the Act). 1:_/ That section has been interpreted
by the Federal Mine Safety and Health Review Commission to provide that
miners may accompany Federal inspectors on regular mine inspections
pursuant to Section 103(a) of the Act, and suffer no loss of pay. 'J:j
1/

Section 103(f) states in part:
Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of ~ny coal or other mine made pursuant to the
provisions of subsection [103](a) . . . [O]ne such representative of miners who is an employee of the operator shall be
entitled to suffer no loss of pay during the period of such
participation under the provisions of this subsection. 30
u.s.c. 813(f).
2/ In Kentland-Elkhorn Coal Corp., PIKE 78-399, 1 FMSHRC Decisions
l833 (November 30, 1979) appeal pending No. 79-2536 (D.C. Cir., December 21,
1979), the Federal Mine Safety and Health Review Commission interpreted
the Section 103(f) walkaround pay provision to apply to Section 103(a)
"regular" inspections only. In reaching its decision, the Commission in
Kentland-Elkhorn relied on its reasoning in Helen Mining Co., PITT 7911-P, 1 FMSHRC Decisions 1796 (November 21, 1979) appeal pending No.
79-2537 (D.C. Cir., December 21, 1979). In Helen Mining Co., the Commission held that a miner was not entitled under Section 103(f) to walkaround pay for spot inspections pursuant to Section 103(i) of the Act and
noted that compensation was due only for a miner's accompaniment of a
Federal inspector during a Section 103(a) "regular" inspection, In Helen
Mining Co., the Commission referred to "regular" inspections as thos~-
described in the third sentence of Section 103(a) of the Act, i.e., the
four required annual inspections of underground mines and the two required
annual inspections of surface mines.

669

On September 19, 1979, Applicant filed an Application for Review contending therein that it had not violated Section 103(f) and thereafter moved
for summary decision.
Pursuant to the C~mmission's Rules of Procedure, summary decision
can be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows
that there is no issue as to any material fact and that the moving party
is entitled to summary decision as a ·matter of law.
29 CFR 2700.64(b).
The facts in this case as alleged by Applicant are not disputed.
On August 7, 9, 10, 13, 14, 15, and 16, 1979, a Federal mine inspector
conducted a "free silica technical investigation" at Campbell's Creek
Surface Mine. The inspector was accompanied by Mr. Thomas Morris, a
representative of the miners. Morris was not compensated for the time
he spent accompanying the inspector. Applicant asserts that Morris was
not entitled to compensation since the "free silica technical investigation" was not a regular inspection.

I accept Applicant's unchallenged representations, and considering
the undisputed assertion of fact regarding the nature of the inspection,
I conclude that the "free silica technical inv~stigation" at issue was
not a regular inspection, and that therefore, as a matter of law, Applicant
did not violate Section 103(f) of the Act.
Accordingly, the Motion for Summary Decision
citation is VACATED.

Gary M1

A~tnini$

I
I

I

iI

Distribution:

\

C. Lynch Christian, III, Esq., Jackson, Ke:J+ , Holt & O'Farrell,
P. 0. Box 553, Charleston, WV 25322 (Certifi d Mail)
Thomas P. Piliero, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 - 15th
St., NW, Washington, DC 20005 (Certified Mail)

670

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

MAR 1 o 1980

WINDSOR POWER HOUSE COAL COMPANY,.
Contestant
v.

Contest of Citation and Order
Docket No. WEVA 79-193-R

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

Order No. 811576
May 11, 1979
Respot\dent

Beach Bottom Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

David M. Cohen, Esq., American Electric Power Service
Corporation, Lancaster, Ohio, for Contestant;
Michael Bolden, Assistant Solicitor, Mine Safety and
Health Administration, U.S. Department of Labor,
Arlington, Virg~nia, for MSHA.

Before:

Judge Melick

This case is before me upon the application by the Windsor Power House
Coal Company (Windsor) under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. § 801 et seq., hereinafter the "Act") to contest a citation and subsequent order-Of withdrawal issued by the Mine Safety
and Health Administration (MSHA) under sections 104(a) and (b) of the Act,
respectively. An evidentiary hearing was held on December 12, 1979, in
Wheeling, West Virginia.
Section 104(a) of the Act provides for the issuance of citations by
MSHA for violations by mine operators. Section 104(b) of the Act provides
that an order of withdrawal may be issued when the operator fails to timely
abate a violation described in a citation issued under section 104(a). The
citation at bar was issued by MSHA inspector Charles B. Coffield on May
11, 1979, at 3:45 p.m., charging a violation under 30 C.F.R. § 75.316, for
inadequate ventilation. The order of withdrawal, under section 104(b) of
the Act, was issued by inspector Coffield at 5:40 p.m. on the same date for
Windsor's alleged failure to abate the violation. Windsor takes issue in
this case only with the underlying violation and concedes that if the
violation existed, the order of withdrawal was properly issued.

671

While 30 C.F.R. § 75.316 provides essentially only for the approval by
the Secretary and for the adoption by the mine operator of a ventilation
system and methane and dust-control plan, violations of this regulation have
been found where an operator has failed to adhere to its approved ventilation plan. Zeigler Coal Company, 4 IBMA 30, January 28, 1975, aff'd,
536 F.2d 398 (D.C. Cir. 1976). Windsor's ventilation plan required an air
quantity of not less than 3,600 cubic feet per minute and a mean air velocity
of not less than 35 feet per minute at the working faces. Windsor concedes
that the air readings taken by Inspector Coffield and reported in his citation and order were.less than specified but argues that the readings were
not taken at "working faces" because Windsor was not then actually engaged
in "work of extracting coal."
It is apparent however, that Windsor has reached an erroneous conclusion
because of its misplaced reliance upon only a small segment of the defin-ition
of "working face" lifted out of context. "Working face" is defined in
30 C.F.R. § 75.2(g)(l) as "any place in a coal mine in which work of extracting coal from its natural deposit in the earth is performed during the mining
cycle." The issue to be resolved then is not whether the inspector's air
readings were taken while coal was being extracted, but rather whether the
readings were taken at places "in which work of extracting coal from its
natural deposit in the earth [was] performed during the mining cycle."
The term "cycle" is defined in the Dictionary of Mining, Mineral and
Related Terms, U.S. Department of the Interior (1968), as the complete
sequence of face operations required to get coal. In conventional mining,
as followed in the Beach Bottom Mine, the sequence consists of supporting
the roof, cutting the face, drilling the face, shooting the face, and loading and hauling the coal. In order for the face to be a "working face," it
is not therefore necessary that work of extracting coal be performed at all
times. Cf. Peggs Run Coal Company, Inc., PITT 73-6-P, March 29, 1974, aff'd,
3 IBMA 421, December 6, 1974. The definition clearly contemplates that the
mining cycle is a continuing process in spite of temporary delays caused by
shifting equipment or mechanical break down .
. The air readings cited herein were taken in the Nos. 1, 4, 5, and 6
entries of the 6 West section of the mine by Inspector Coffield beginning
around 3:45 p.m., on May 11, 1979. At that time there was no active cutting
or loading of coal in any of the face areas although mining equipment was
being moved about. The operator concedes that the full sequence of conventional mining operations continued in th'e ·cited entries until 2:45 p.m. It
appears. that at that time the feeder had broken down and, as a result of that
and an anticipated shift change at 3:45 p.m., the various operations were
being phased out. Even after 2:45 p.m., however, the evidence shows that
further work was performed with the admitted purpose of setting up the ·
entries for production to resume as soon as the feeder was repaired. The
uncontradicted evidence shows that various equipment used in the mining cycle
was energized at least until 3:45 p.m., that a roof-bolting machine continued
to spot roof bolts (the process of replacing bolts) at the inby corner of the
No. 1 entry until at least 3:15 or 3:20 p.m., that the cutting machine which

672

had completed cutting the No. 5 entry at around 2:45 p.m., was on its way to
cut the No. 4 entry and that the loading machine was waiting to operate in
the No. 6 entry.
Within this framework, I have no difficulty concluding that when Inspector Coffield took his air readings each of the cited entries was a place in
which work of extracting coal from its natural deposit in the earth was performed during the mining cycle. Thus, the readings were taken at "working
faces." 30 C.F.R. § 75.i(g)(l). Under the circu stances, the underlying
citation in this case was properly issued and the subsequent order of
withdrawal was therefore valid.

~~..

\

\'

~~\A

\
'

'

'-.J"'-.l

Gary Mb
k \
Atlminist ative \La
Distribution:

l

Judge

~

\

David M. Cohen, Esq., American Electric ~o, r Servic
P.O. Box 700, Lancaster, OH 43130 (Cer~i~ied Mail)

Corporation,

~Jfety

Michel Bolden, Assistant Solicitor, Mine
and Health Administration, U.S. Department of Labor, 4015 ~ilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 Fifteenth
Street, NW., Washington, DC 20005 (Certified Mail)

673·

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

MAR 1 0 1980.

Contest of Order of Withdrawal

RANGER FUEL CORPORATION,
Contestant
v.

Docket No. WEVA 79-378-R

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

Order No. 645907
June 14, 1979
Respondent

Beckley No. 1 Mine

DECISION
Appearances:

Gary W. Callahan, Esq., The Pittston Company Coal Group,
Lebanon, Virginia, for Contestant;
Stephen P. Kramer, Esq., Office of the Solicitor, Mine
Safety and Health Administration, U.S. Department of
Labor for Respondent.

Before:

Judge Melick

This case is before me under section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. § 801 et seq., upon the application of Ranger Fuel Corporation (Ranger) to contes~ati'()rder of withdrawal
issued by the Mine Safety and Health Administration (MSHA) under section
104(d)(2) of the Act. 1/ An evidentiary hearing was held in Beckley,
West Virginia, on January 29, 1980, at which the parties appeared and
presented evidence.
The issue is whether there is sufficient evidence to support the
validity of Order of Withdrawal No. 645907 issued to Ranger on June 14,
1979. The parties stipulated in this case as to the existence of a valid

l}

Section 104(d)(2) provides as follows:
"If a withdrawal order with respect to any area in a coal or other mine
has been issued pursuant to paragraph (1), a withdrawal order shall promptly
be issued by an authorized representative of the Secretary who finds upon
any subsequent inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under paragraph
(1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable to
that mine."

674·

section 104(d)(l) order which is the condition precedent to the issuance
of a withdrawal order under section 104(d)(2). The order at bar charged
a violation of mandatory standard 30 C.F.R. § 75.1710-l(a)(4) and alleged
that:
The 1 left section continuous mining machine was being
operated in the No. 2 working place with the machine operator beside the miner and the remote control unit sitting
[sic] on the machine. Any machine with a remote control
system must be provided with a cab or canopy when the
controls are placed on the machine.
The cited regulation provides, as relevant herein, that:
All self-propelled electric face equipment, including
shuttle cars, which is employed in the active workings of
each underground coal mine shall *
* be equipped with
substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at
the operating controls of such equipment he shall be protected from falls of roof, face, or rib, or-from rib and
face rolls.

*

Ranger does not deny that its continuous mining machine was being
operated as stated in the order, but contends that the cited standard does
not apply to mining machines with remote controls, and that in any event,
the alleged violation was not the result of an "unwarrantable failure."
The essential facts are not in dispute. MSHA inspector Charles Meadows
was conducting a regular inspection of the Beckley No. 1 Mine on July 30,
1979, and while in the 1 Left Section observed a continuous-mining machine
operating without a cab or canopy. The miner operator, Gregory Stover, was
standing beside the machine with the remote control console on top of the
machine. Stover admitted at hearing that he was operating the machine in
this manner. Under the circumstances, the fact of the violation is proven
as charged. There is no exception provided in the cited regulation for
remote-controlled face equipment. The fact that MSHA may have permitted the
use of such equipment in certain other circumstances is immaterial.
Meadows had previously issued citations on April 9, 1979, and July 25,
1979, for similar violations. After each citation, he told the miner operator and the section foremen how to properly use the remote control console.
He explained that if the controls were placed on the mining machine, the
machine would have to be provided with a cab or canopy, and if it were to
be used as a remote unit, it wourd have to be operated from beyond the boom
of the miner. Meadows explained the hazards in operating the miner with
the re~ote control panel on a machine not provided with a cab or canopy could
come from a roof fall, from the machine pinning the operator against a rib,
by the operator getting a foot caught under it, or from a shuttle car bumping
the machine into the operator.

675"

Mine foreman William Ray Tillie testified on behalf of the operator that
after the earlier violations issued by Meadows he told his workers not to
place the remote controls on the miner while they were ru~ning or tramming
it and warned that if they were caught violating the rule "some kind of
action would have to be taken." Even after these warnings, however, Tillie
caught his men violating the order and took no disciplinary action. Shelby
Tolliver, mine superintendent, concurred that no disciplinary action had ever
been taken against· any violators of this rule. Tillie conceded that he had
told the operators that he agreed with their view that it was sometimes
safer to operate the equipment while standing next to it. Thus, at th~ same
time he was reprimanding them for operating in violation of the regulation
and company policy, he agreed with them that it was in fact safer to do
just that.
Gregory Stover, the operator caught by Meadows violating the canopy
standard on June 14, 1979, admitted that he had been warned by management
not to operate the machine in the manner cited, but nevertheless continued
on a daily basis to operate that way. No disciplinary action was ever
taken against him.
Under the circumstances, I have no difficulty finding that Ranger knew
or should have known that the miner operators were continuing to follow
the cited practice in spite of the so-called warnings. The alleged warnings
were. given in such a way that the operators were given license to disobey
them. No disciplinary action had ever been taken for repeated violations
of the warnings in spite of the fact that these violations were admittedly
known to management. The evidence shows that the violations continued
u~abated on a daily basis. For these reasons, I find that the violation
was caused by the "unwarrantable failure" of the operator.
Ranger argues that it is sometimes safer to operate the remote miner
in the manner cited as a violation, i.e., with the control console upon or
near the machine. Based on the evidence presented in this case, I cannot
agree with this contention. In any event, if the operator believed that
such was the case, it should have filed a petition for modification under
section lOl(c) of the Act. By its failure to pursue this course of action,
I can only believe that the operator is as unconvinced by its argument as
1
I am. Under all the circumstances, Order of Withdra al No. 645907 was, and
is, valid.
·

676

Distribution:
Gary W. Callahan, Esq., The Pittston Company Coal Group, Lebanon, VA
24266 (Certified Mail)
Stephen P. Kramer, Esq., Office of the Solicitor, Mine Safety and Health
Administration, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)

677

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

(703) 756-6210/11/12

MAR 1 1 1980
Civil Penalty Proceeding

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

Docket No. PENN 79-145
A.O. No. 36-00962-03030V
Vesta No. 5

v.
JONES & LAUGHLIN STEEL CORP.,
Respondent

DECISION AND ORDER
As a result of the failure to train properly the miner assigned
to the duty of fan watcher as required by the operator's fan stoppage
plan the operator failed to detect a fan stoppage on the Hastings Fan
at the Vesta No. 5 Mine that occurred around midnight on April 9, 1979.
Because the miner responsible for turning off the other fans, deenergizing
the power, and signalling the men to leave the mine misread the fan signals
a serious violation of 30 CFR 75.321 occurred. Since the inspector
determined the violation involved a condition which the operator knew or
should have known about a section 104(d)(l) citation issued and a penalty
was originally proposed in the amount of $2000.00. After conference
the penalty was reduced to $1250.00.
The parties now move to reduce the penalty to $850.00 on the ground
that a violation attributable to a rank-and-file miner is not within the
operator's control, and must therefore be treated as an unwarrantable
no-fault violation. This I find is a contradiction in terms. On the
one hand, counsel for the Secretary has refused to vacate the unwarrantable
failure charge because "the Operator.should have known of the condition."
On the other hand she suggests the $1150.00 reduction is justified because
"this violation was not within control of the Operator and negligence was
minimal." Because I conclude that the knowledge and actions or inactions
of the miner responsible for fan watching are fully imputable to the
operator, I find the proposed reduction is unjustified and the amount
assessed after conference was proper.
Accordingly, it is ORDERED that the motion to approve settlement
be, and hereby is, DENIED. It is FURTHER ORDERED that the operator pay

678.

a penalty of $1250.00 as settlement in full of this violation on or before
Friday, March 28, 1980 and that subject to payment the captioned petition
be DISMISSED.

Distribution:
.James R. Haggerty, Esq., Jones & Laughlin Steel Corp., 3 Gateway Center,
"Pittsburgh, PA 15263 (Certified Mail)
Barbara K. Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

679.

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

Phone: (703) 756-6225

MAR 1 2 lSBO
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. KENT 79-146
A.O. No. 15-11400-03004 W

Petit~oner

v.
Preparation Plant
FAULKNER COAL & LEASING,
Respondent
DECISION
Appearances:

William F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for Petitioner;
David o. Smith, Esq.,_ Corbin, Kentucky, for Respondent.

Before:

Judge Edwin s. Bernstein

On June 29, 1978, Petitioner served Respondent with Citation No. 149652,
for an alleged violation of the mandatory safety standard at 30 C.F.R.
§ 77.1713. The standard requires facilities such as Respondent's to be
inspected by a "certified person" at least once during each working shift and
written reports of such inspections to be entered in a book maintained at the
facility. On September 26, 1978, Petitioner issued to Respondent an order of
withdrawal pursuant to Section 104(b). of the Feder.al Mine Safety and Health
Act of 1977 (the Act) for allegedly failing to abate the June 29, 1978 citation. On that day, Respondent also was served with Citation No. 149666,
alleging that Respondent continued to produce coal in defiance of the withdrawal order. On June 12, 1979, a petition was filed for the assessment of a
civil penalty of $3,000 for violation of the September 26, 1978 citation.
Respondent filed a timely answer to the petition.
A hearing was held in Knoxville, Tennessee, on January 24, 1980. In
order to dispose of all the' issues in one hearing, Pet1tioner proposed a penalty of $75 for the alleged June 29, 1978 violation of 30 C.F.R. § 77.1713,
and Respondent contested that proposed assessment. Respondent also contested
the September 26, 1978 withdrawal order and Petitioner waived an.objection
to the contest of that order. Therefore, the issues to be decided are:
1. Whether Respondent violated the mandatory safety standard at
30 C.F.R. § 77.1713 on June 29, 1978;

680

2. If so, what penalty should be assessed, taking into consideration
the six criteria set forth in Section UO(i) of the Act;
3.

Whether the September 26, 1978 withdrawal order was proper;

4. Whether .the issuance of Citation No. 149666 on September 26, 1978
was proper; and
5. If Citation No. 149666 was properly issued, what penalty should be
assessed for this vioiation, again taking into consideration the criteria
in Section llO(i) of the Act.
At the hearing, the parties waived submission of posthearing briefs. 1/
Based upon the evidence and my evaluation of the credibility of the wit- nesses and exhibits, I make the following findings of fact, conclusions of
law, and order.
FINDINGS OF FACT
The parties stipulated, and I find:
1. The Federal Mine Safety and Health Review Commission has jurisdiction over the subject matter of this case.
2. The Faulkner Coal & Leasing Preparation Plant is subject to the provisions of the Act.
3. The Faulkner Coal & Leasing Preparation Plant is a "mine" within the
definition of that term contained in Section 3(h)(l) of the Act.
4. The products of the Faulkner Coal & Leasing Preparation Plant enter
into and affect commerce.
5. The Faulkner Coal & Leasing Preparation Plant operates one production shift with an average of three employees.
6.

Citation No. 149652 was issued on June 29, 1978.

7.

The order of withdrawal was issued on September 26, 1978.

8. Respondent is a small operator which mined less than 50,000 tons of
coal per year at the time of the alleged violations.
9. Respondent had 13 alleged violations for the three-year period prior
to June 30, 1978. All of these violations were discovered during the inspection of Respondent's facility on June 29, 1978. There were no violations by
Respondent during the three-year period prior to June 29, 1978.
1/ Counsel for both parties presented excellent closing arguments to conclude an extremely well-tried case.

681

10. At al.l times relevant to this proceeding, Marion McKee was qualified as a "certified person" within the meaning of 30 C.F.R. § 77.1713.
ll. As of December 29, 1978, Arlis Faulkner also has been a "certified
person" within the meaning of that term in 30 C.F.R. § 77.1713.
At the hearing, H. M. Callihan, Jr., Ronnie Brock, and Ken Howard testified for Petitioner. Arlis Faulkner and Marion McKee testified for
Respondent.
Mr. Callihan stated that on June 29, 1978, he inspected Respondent's
preparation plant and found 13 violations of mandatory safety standards. He
testified that on that day, he asked Mr. Faulkner if he had a certified person
making and recording daily examinations. When Mr. Faulkner indicated that
he had no one, Mr. Callihan issued Citation No. 149652. Mr. Callihan taldMr. Faulkner that he or one of his employees should contact the Kentucky
Department of Mines and Minerals and take the test to become a "certified
person."·
On July 28, 1978, Mr. Callihan revisited the Faulkner facility to determine whether the 13 violations had been corr.ected. Mr. Faulkner indicated
that he still had no one to make the inspections, but that he had made
arrangements for himself or someone else to take the test. Mr. Callihan
extended the time to abate the violation.
On September 26, 1978, Mr. Callihan accompanied Ken Howard, an MSHA
inspection supervisor, and Ben Bunch, another inspector, on an inspection
trip to check on a reported illegal mine in the area. En route, Mr. Callihan
decided to visit the Faulkner facility to determine whether the violation of
30 C.F.R. § 77.1713 had been abated. Mr. Faulkner again stated that he had
no one to make the inspections and that he himself had not had time to take
the test. Mr. Faulkner stated that he had contacted Marion McKee, who was
qualified, but that he "couldn't keep up with him." Upon learning that the
violation had not been abated after almost three months, Mr. Callihan issued
a withdrawal order pursuant to Section 104(b) of the Act. Mr. Faulkner told
Mr. Ca1lihan that despite the order, he would be unable to stop loading coal
that day and continued to load coal. As a result, Mr. Callihan issued
Citation No. 149666.
Mr. Callihan further s_tated that during his three visits to the facility
on June 29, July 28, and September 26, 1978, Mr. Faulkner never showed him
nor offered to show him a record book; that the first time he saw such a
record book was the night before the hearing; that during these three visits
he never saw Mr. McKee at the Faulkner facility; and that if Mr. Faulkner.had
shown him a record book, he would not have issued the withdrawal order, but
would have abated or terminated the citation. Mr. Callihan also testified
that he never. told Mr. Faulkner that the certified inspector must be a fulltime employee; however, he did tell Mr. Faulkner that the individua~must be
"someone who would be on the property," and someone who "must be there more
than just in or out."

682

Mr. Callihan further testified that on November 17, 1978, he revisited
the Faulkner facility to see if it was still processing coal. He inspected
the preparation plant and talked to Mr. Faulkner. As Mr. Callihan was making
his inspection, Mr. McKee drove up and there was some banter about an old
shotgun which Mr. McKee jokingly waved about. Mr. Callihan did not see any
written records at that time. Mr. Faulkner did not offer to show him any
written records, and did not indicate that there was a record book.
Ronnie Brock, another MSHA inspector, testified that he made a follow-up
inspection of the Faulkner plant on July 7, 1978 to determine whether the
citations issued on June 29, 1978 had been abated. Mr. Callihan was on
National Guard duty and thus unavailable to conduct the follow-up inspection.
Mr. Faulkner told Mr. Brock that he needed more time to take the test.
Mr. Faulkner did not indicate that Mr. McKee was making inspections and did
not indicate that he had an inspection book. Mr. Brock extended the abatement time to July 14, 1978. Mr. Brock did not tell Mr. Faulkner that the
inspector had to be a full-time employee. It was his understanding that no
MSHA policy required this.
Ken Howard, an MSHA supervisor, testified that he visited the Faulkner
facility with Mr. Callihan and Mr. Bunch on September 26, 1978. Mr. Faulkner
then stated that he had not had time to arrange for the test to obtain his
certification, and had no one on the site to make examinations. Mr. Faulkner
did not indicate that he had any records of examinations, but said that he
had attempted to hire Mr. McKee, and "couldn't keep up with him." It was
Mr. Howard's understanding that nobody was making examinations.
Mr. Callihan issued the Section 104(b) order, but Mr. Faulkner said that
he would not close down his facility since he could not afford to shut down.
Mr. Howard did not remember any conversation regarding the necessity of having a full-time employee make the inspections. He stated that MSHA's policy
is that whoever makes the examinations should be on site about 50 to 60 percent of the time. Mr. Howard did not recall any conversation regarding
MSHA policy at the time, and Mr. Faulkner did not ask about policy.
Mr. Howard testified that MSHA believes that this inspection procedure
is an effective tool of hazard prevention, and a very important requirement.
He stated that at the September 26, 1978 meeting, when Mr. Faulkner said
that he would not comply with the Section 104(b) order, Mr. Howard explained
the ramifications of such conduct, specifically the possibility that
Mr. Faulkner might be subject to further penalties and even criminal prosecution. Mr. Faulkner told the MSHA inspectors that he intended to comply with
the requirement, but that if he did not load the Louisville and Nashville
railroad cars which he had obtained, he would lose his contract for such
cars and be out of business. He said.he would leave the premises and did
not want any trouble.
Marion McKee testified that between July 1 and July 5, 1978, he began
to help Mr. Faulkner temporarily as a bulldozer operator and tipple inspector. He stated that although he made hi~ first tipple inspection at the
Faulkner plant in early July 1978, he did not record his inspections in a

683

book until August ·22, 1978. He also testified that in July 1978, he saw
Mr. Callihan at the Faulkner facility and they joked about an old shotgun.
According to Mr. McKee, all of his inspections were made at 7 a.m., except
for the November 17, 1978 inspection which was made at 7:30 a.m. He testified that from early July 1978 until Mr. Faulkner became qualified in
December 1978, he inspected every day that coal was loaded. Mr. McKee stated
that he inspected the preparation plant on September 26, 1978, but was not
present when the inspectors were there.
Arlis Faulkner testified that he held a Bachelor of Science degree from
the University of Kentucky, attended graduate school in pharmacy for
three years, and has been the sole proprietor and owner of Faulkner Coal
& Leasing since he built the coal preparation plant in 1973. He also owns
three concrete plants, some bluejean stores, and some rental income property.
Mr. Faulkner testified that on June 29, 1978, Mr. Callihan told him that
the inspector should be a full-time employee. Accordingly, he hired
Mr. McKee in July 1978. Mr. McKee would begin work, either at Respondent's
plant or elsewhere, at 7:30 a.m., and would stop by Respondent's plant before
work and inspect at about 7 a.m. on days when the tipple was in operation.
In July 1978, the tipple was inspected, but the inspections were not recorded
in a book. Mr. Faulkner stated that on July 7, 1978, when Mr. Brock made his
follow-up inspection of the plant, he did not tell Mr. Brock about
Mr. McKee's employment even though Mr. McKee was inspecting for him at the
time. Mr. Faulkner told Mr. Brock that he needed more time to study for the
certification examination.
Mr. Faulkner testified that the shotgun incident occurred on July 28,
1978. He added that at that time, Mr. McKee told Mr. Callihan that he was
making the inspections. Mr. Callihan did not then ask for the inspection
records. Mr. Faulkner stated that Mr. McKee was inspecting as of July 28,
1978, but that Mr. Faulkner did not know if a part-time inspector was sufficient to comply with the standard. Mr. McKee also ran a bulldozer for
Mr. Faulkner. Mr. Faulkner admitted saying that he could not "keep up with"
Mr. McKee. Mr. Faulkne~ testified that one day Mr. McKee would come in;
another day he would not. Mr. McKee was never a full-time employee. He
would come by to inspect the tipple and would go to work. Mr. Faulkner
stated that he did not always know where Mr. McKee could be located.
On September 26, 1978 ,, the facility was loading coal. There had been a
shortage of railway cars, and Mr. Faulkner had waited three weeks before getting
the cars which he was loading that day. Unless he loaded those cars, he
would lose his railroad contract and would be unable to obtain any more cars.
He told the inspectors he was doing everything he could to comply with the
standards, but that he had not had time to take the certification examination. He testified that the inspectors did not ask for the inspection book
on September 26.
Mr. Faulkner conceded that the proposed $3,000 penalty would not put
him out of business. His 1979 production at the facility was approximately

684

15,000 to 20,000 tons, and his 1978 net profit from the facility was between
$25,000 and $35,000.
Mr. Faulkner had stated that there was an inspection every time that
coal was loaded. On cross-examination, he was asked why there was an inspection report for September 19, 1978, even though he had also testified that
coal was not loaded for three weeks prior to September 26. Mr. Faulkner
qualified his earlier testimony by adding that inspections were made when the
tipple was used to move or stockpile crushed coal, as well as when coal was
being loaded.
In response to my questions, Mr. Faulkner stated that he did not examine
the provisions of 30 C.F.R. § 77.1713. He also stated that Mr. McKee was an
erratic worker, and that "[i]f he took a notion to go somewhere, fishing or
somewhere, he went. If he took a notion to get him a bottle and go, he did
it." When I asked Mr. Faulkner why.he did not tell the inspectors on
September 26, 1978 that he had a record book, he gave various answers which
included: (1) "they didn't ask for it"; (2) "I didn't really think about
it"; and (3) he thought a full-time employee was required.
The record book which was introduced into eyidence was a spiral notebook. Petitioner's counsel noted that the book began with entries for the
month of November 1978, and that entries for the previous August appeared on
subsequent pages. He also noted that while the November entries were all in
one color ink, the August entries were in another color ink, and that all
of the entries indicated that Mr. McKee made his inspections at 7 a.m., with
the exception of the November 17, 1978 entry, which was made at 7:30 a.m.
Petitioner's counsel challenged the authenticity of the book on the grounds
of the differing colors of the ink and the fact that the entries for various
months were out of sequence.
CONCLUSIONS OF LAW
It is undisputed that on June 29, 1978, Respondent violated 30 C.F.R.
77.1713. Respondent's business is small in size, and had no history of
prior violations. The proposed penalty would not affect the operator's ability to continue in business. The gravity of the violation was small since
the probability of an accident was slight, '!:_/ and Respondent's negligence was
§

2/ In Robert G. Lawson Coal Company, 1IBMA115, 120 (1972), the Interior
Board of Mine Operations Appeals made the following comments concerning the
"gravity" criterion:
"Each violation should be analyzed in terms of the potential hazard to
the safety of the miners and the probability of such hazard occurring. The
potential adverse effects of any violation must be determined within the
context of the conditions or practices existing in the particular mine at
the time the violation is detected."

685

slight. There were, however, no good faith efforts to abate the violation.
I assess a penalty of $75, the full amount of the Assessment Office's
proposal.
The withdrawal order of September 29, 1978, was proper. The violation
had not been abated when the inspectors revisited the facility, although
almost three months had elapsed since the issuance of the citation. The
inspectors had extended the abatement period several times. When the order
was finally issued, the inspectors were presented with no evidence indicating
that the regulation was being complied with. Even if, as contended by
Respondent, the required inspections were being made and records being kept,
Respondent's failure to communicate this to the inspectors justified the
conclusion that the violation had not been abated in good faith.
The second citation was proper in that Respondent knowingly and willfully defied a properly issued withdrawal order. This constituted a violation of Section llO(a) of the Act. 3/
In connection with the assessment of a penalty for the second citation,
several of the factors previously stated apply, including the small size of
Respondent's business and its insignificant history of prior violations.
Mr. Faulkner stated that the proposed penalty of $3,000 would not put him
out of business, but that he would have to obtain the funds from his other
businesses.
In order to determine whether the operator acted in good faith in this
matter, it is necessary to evaluate apparently conflicting testimony.
Mr. Faulkner and Mr. McKee testified that Mr. McKee began making inspections
in early July, shortly after the June 29, 1978, citation was issued, and that
from August 22, 1978, onward, Mr. McKee recorded his examinations in the
inspection book which was submitted into evidence. Mr. Faulkner stated that
he was under the impression that a full-time employee was required to
inspect. He stated that this impression was based upon his discussions with
the inspectors, although he never read the regulation itself. Mr. Faulkner
and Mr. McKee stated that in July 1978, they told the inspectors that
Mr. McKee was making inspections, although they never told the inspectors
that a record book was kept after August 22, 1978.
Petitioner disputes the contention that Mr. McKee was making inspections and maintaining an inspection book before September 26, 1978. Counsel
stressed that as late as the November 1978 follow-up inspection, MSHA personnel were not informed about the book.

3/

Section llO(a) reads:
"The operator of a coal or other mine 1n which a violation occurs of a
mandatory health or safety standard or who violates any other provision of
this Act, shall be assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation. Each occurrence of
a violation of a mandatory health or safety standard may constitute a
separate offense."

686

There is also a discrepancy between Petitioner's witnesses and Respondent's witnesses regarding when the inspectors first observed Mr. McKee on
Respondent's premises. The inspectors contend that this took place on
November 17, 1978, while Mr. Faulkner and Mr. McKee testified that it took
place in July 1978. Mr. McKee and Mr. Faulkner also testified that in
July they told the inspectors that Mr. McKee was making inspections.
I find that the inspectors' version of the facts is more believable.
The three inspectors' testimony remained consistent throughout direct and
cross-examination. Upon observing their demeanor, I found them to be
truthful witnesses. On the other hand, Mr. McKee's and Mr. Faulkner's
testimony contained a number of factual inconsistencies.. The notebook and
various aspects of their testimony challenge simple logic.
The alleged record book contains several discrepancies on its face which
lead me to believe that it probably was prepared after the fact, rather than
during the alleged inspection period. As previously noted, the book begins
with dates in November. After a page or two of November entries, the August
entries appear. This lends credence to the explanation that the entries were
begun in November, and that the earlier dates were added as an afterthought.
Additionally, there is a regularity with respect to the entries which gives
the impression that they all were prepared at the same time. Initially,
Mr. McKee and Mr. Faulkner testified that entries and inspections were made
when coal was loaded. This also raised some questions of credibility.
Although Mr. Faulkner later qualified his testimony, it calls into question
entries made during the three-week period immediately prior to September 26,
1978 when, according to the testimony, no coal was loaded onto railroad cars.
Another matter which raises questions regarding the notebook's
authenticity and credibility relates to Mr. Faulkner's description and my
observation of Mr. McKee. Mr. McKee is a very casual man who does not appear
to be totally reliable. Mr. Faulkner testified that Mr. McKee would sometimes disappear, would often be difficult to locate, was very erratic in
his movements, and was the type of man who would disappear anytime he "took
a notion to get him a bottle and go." Despite this, every entry in the
book indicated that Mr. McKee performed his inspections at precisely 7 a.m.,
with the lone exception of the September 26, 1978, entry, which indicated
that the inspection was made at 7:30 a.m. The apparent regularity of the
inspection times is inconsistent with my observation of Mr. McKee and with
the picture of Mr. McKee etched by Mr. Faulkner. Mr.· Faulkner's admission
to the inspectors on September 26, ·1978, that he "couldn't keep up with"
Mr. McKee substantiates that view and is inconsistent with the notebook
which indicated that Mr. McKee was a diligent man who made regular inspections at exactly the same time each day.
Finally, and most persuasively, when Mr. Faulkner was faced with a
total shutdown of his facility on September 26, 1978, a shutdown which was
so economically threatening to him that he defied the withdrawal order and
subjected himself to possible criminal penalties, he still did not inform

687

the inspectors ·that Mr. McKee had been making and recording regular inspections and produce the record book. Mr. Faulkner impressed me as being an
extremely bright, well-educated, and resourceful individual who apparently
has done well in a number of business ventures. It is completely inconsistent with this characterization for him not to have produced or revealed the
existence of the notebook at that time.
The inspectors' testimony is far more credible. I believe the inspectors when they indicated that on two visits in July 1978, and one on
September 26, 1978, they were not told that Mr. McKee was performing t~e
inspections. I do not believe that the inspectors misled Mr. Faulkner into
thinking that the certified person referred to in the regulation had to be a
full-time employee. According to Mr. Faulkner's own testimony, the insp~c
tors encouraged him to take the examination knowing that he only spent part
of his time at this facility. I also do not believe that the alleged shotgun
incident took place in July as Mr. Faulkner and Mr. McKee alleged. I credit
the inspectors' testimony that this meeting took place in November. I
further accept the inspectors' testimony that the conditions were not abated
until sometime after November 17, 1978, probably in December 1978.
I also do not find Mr. Faulkner's testimony that he did not know that
the inspections were required to be recorded to be believable. The initial
citation issued to Respondent indicated that "[n]o certified person was
available to make and record inspections." [Emphasis added.]
In summary, the evidence of record convinces me that as of September 26,
1978, there were no regular inspections being performed and there was no
record book of any such inspections at Respondent's facility. Further,
Mr. Faulkner was extremely slow in abating both citations. It was not until
November or December 1978 that he finally corrected the condition.
The violation of the withdrawal order was thus willful. 4/ The gravity
was small; 5/ I do not believe that as a result of the defiance of the
withdrawal order any
were endangered. There was a complete lack of
good ~aith in complying with the second citation.

lives

In consideration of all of these factors, I find that a penalty of
$2,000 is appropriate to achieve the purposes of the Act.

!±/

The willfulness of the violation is somewhat ameliorated by the fact that
at the time of the withdrawal order, Mr. Faulkner was faced with a desperate
economic situation in that he had been waiting for several weeks to obtain
railroad cars, and felt that he would suffer dire economic losses if he complied with the withdrawal order and failed to load the cars. I think this
situation should be considered as a mitigating factor in assessing an appropriate penalty.
2._/ See footnote 2, supra.

688

ORDER
The order of withdrawal is AFFIRMED. Respondent is ORDERED to pay
$2,075 in penalties within 30 days of the date of this order.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
William F. Taylor, Esq., Office of the Solici.tor, U.S. Department of
Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
David O. Smith, Esq., Attorney for Faulkner Coal & Leasing, 100 West
Center Street, P.O. Box 699, Corbin, KY 40701 (Certified Mail)

689

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

WR 1 2 1980

Civil Penalty Proceedings

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

Docket No. HOPE 79-6-P
A.c. No. 46-03467-03001

Petitioner

v.
Meadow River No. 1 Mine
SEWELL COAL COMPANY,
Respondent

Docket No. HOPE 79-227-P
A.c. No. 46-03859-03005
Sewell No. 1-A Mine

DECISION AND ORDER ASSESSING PENALTIES
This matter came on for hearing on February 5, 1980, in Charleston,
West Virginia. · Respondent did not appear at the hearing although it was set
at the site requested by Respondent 1/ and although Respondent received
approximately 32 days notice of the hearing. ]:_/
Respondent was found to have waived its right to present its defense
and a summary order was entered assessing MSHA's proposed penalties as final
and directing Respondent to pay such penalties.
My oral decision containing findings, conclusions and rationale appears
below as it appears in the record aside from minor changes in grammar and
punctuation:
The record will reflect that the Respondent, Sewell Coal
Company, is not present. On Thursday, January 31, 1980, I
1/ By letter dated January 4, 1980, Respondent's counsel, Gary w. Callahan,
requested a continuance of these two proceedings for the reason that he had
another mine safety hearing to attend in Arlington, Virginia, on the same
day. By Order dated January 15, 1980, Respondent's motion was denied. On
January 31, 1980, Mr. Callahan advised me that he was not going to attend
the hearing in Charleston, West Virginia. Mr. Callahan was again advised
that the hearing would not be cancelled.
2/ A form letter dated November 1, 1979, from Respondent's counsel to
administrative law judges in the Commission's Arlington office is attached
as Exhibit "A." Among other things, it indicates various mining companies
that counsel represents.

690.

did receive a call from Respondent's counsel, Mr. Gary
Callahan, who advised m~ he would not be in attendance at the
hearing today. He said that he was going to be in Arlington,
Virginia, in a hearing before my colleague, Judge William
Fauver, in a mine safety matter. I did advise Mr. Callahan
at that time that I had previously ruled upon his motion to
continue this case, and that I had denied his motion to
continue this case.
The sequential facts with respect to my denial of this
motion for continuance are as follows:
First, this hearing was noticed by me on January 2,
1980. Mr. Callahan received that Notice of Hearing on or
before January 4, 1980, since on that date he sent me a
letter and in writing requested that the hearing be continued
because of his hearing before Judge Fauver. So the record
reflects clearly that the Respondent did have more than
thirty days' notice of the hearing in writing.
The pertinent rule with respect to Notice is that contained in 29 CFR 2700.53, which requires that written notice
of the hearing shall be given to all parties at least
twenty days before the date set for a hearing.
After receiving Mr. Callahan's letter dated January 4,
1980, I issued a written order denying his motion for continuance on January 15, 1980, pointing out that our exceedingly
heavy docket makes it impossible to delay or adjust hearing
dates based on the availability of one attorney.
In our conversation five days ago when Mr. Callahan
called and actually said he would not attend the hearing
today, and after I pointed out to him that his client has a
great deal of business before this Commission and has insufficient attorneys to represent it, I advised him we could not
set our schedule to that of an individual's availability when
the client's attorney had more business than he could handle.
Mr. Callahan indicated in this conversation that this
was a field of expertise and it was difficult for him to find
another attorney. He did not say that he had called other
attorneys in an attempt to obtain someone to attend this
hearing and represent the Respondent.
I advised him I was going to hold the hearing and that I
would be in Charleston to hold the hearing on the date
scheduled -- that is today, February 5. I asked him to
advise the Government attorney. Mr. Callahan indicated he
had already spoken to the Government attorney and that the
Government attorney said he was going to attend the hearing.

691

. It is my judgment that if the principle were established
that hearing schedules were to be established on the basis of
the convenience of counsel or on the availability of one
counsel, it would soon be impossible to schedule these Mine
Safety hearings.
I know of one situation several years ago where a large
company had only one attorney, and its whole policy was to
delay the processing of these hearings because that attorney
was never available.
I note Mr. Callahan has before me in the past sought
a delay in hearings I have had with him on this same basis,
and I also point out he has done the same with other
Administrative Law Judges in our office saying he is the
only one who can try these cases for his client. Sewell Coal
Company has many, many hearings before this Commission. I
question whether any rule which would be established delaying
these cases would actually be in the best interest of mine
safety.
Where is a proper line to be drawn? if a party says it
has two hearings going on simultaneously, can it hide behind
an attorney's unavailability and not be required to hire
other counsel?

"

A second question arises: Can an attorney delay the
normal processing and hearing of cases because of his
unavailability? Can a mine operator charged with violations
of the mine safety laws delay these cases by refusing to hire
sufficient counsel?
In the very proceedings before us in the two dockets
with which we are concerned today, this Respondent, apparently through its counsel, has already engaged in considerable delay. I note that the petition for the assessment of
civil penalty was filed by the government on October 3, 1978.
Several months went by without an answer being filed by
Respondent.
On April 26, 1979, an Order to Show Cause was issued
by Chief Administrative Law Judge James A. Broderick requiring the Respondent to show cause why it· should not have been
deemed to have waived its right to a hearing and to contest
the proposed penalty. On May 11, 1979, Judge Broderick
granted the Respondent until June 1, 1979, to respond to the
Order to Show Cause. On May 17, 1979, the Responrient did
file its answer to the petition for assessment. Perhaps an
error was made at this point by not finding the Respondent
in default at that point. I t never did show good cause why

it had delayed filing its answer for several months; however,
at that time the commission was in a state of change. We
were operating under different procedural rules and new
rules were soon to be issued, and they were issued on
June 29, 1979.
So the Respondent in this case started the proceeding
with a considerable delay. It was very well-accommodated,
it was given additional time to answer the Order to Show
Cause and was not found in default -- a considerable accommodation which I do question now the propriety of. I am
beginning to think that perhaps the default should have been
entered at that time. In any event, the default was waived
by the Government and Respondent's answer was received and
these matters were then starting to be processed.
In its answer .to the petition for penalty assessment,
the Respondent specifically requested that the hearing in
these two cases be held in Charleston, West Virginia. That
is where these two cases were noticed for hearing, and the
Respondent, through its counsel, was given thirty days'
notice.
I find it improper for an attorney to call up a judge
five days before a hearing and tell a judge he is not going
to appear [in] a case when he has had notice and where the
hearing is being set at a site convenient to that particular
party, particularly where there is a history by this same
counsel of engaging in the same type of delay, and where the
apparent belief of counsel is that he, the attorney, is the
focal point of Mine Safety and Health proceedings.
Mr. Callahan is a counsel for one party. We have many
attorneys in this country. These hearings in Mine Safety
matters are held in fifty states. Administrative Law Judges
travel to every state in the union to hold these hearings.
We are not able to accommodate the scheduling of these hearings based upon the fact that one attorney representing a
party cannot himself make it. One of the points that
Mr. Callahan made in his conversation with me was that this
is an area of expertise, and apparently he's the only one who
can try these cases. I reject that out of hand. Any
attorney worth his salt can try a Mine Safety and Health
proceeding. Attorneys have customarily had no difficulty
in trying these cases. It would not have been impossible to
begin having a sufficient number of attorneys to try these
cases available, and there are such attorneys available, and
there is quite a large Mine Safety and Health bar.

693.

I also note for a period of years another large coal
company, Eastern Associated, had law students representing
it in these cases. Although I did not approve of that
practice, the fact remains that that did occur.
So, if Mr. Callahan's argument were accepted that he or
another attorney or three more attorneys are the only ones
who can represent a client, if that were accepted, then
ultimately you would have difficulty bringing many of these
cases to hearing.
The question now is what to do in this case. The current rules of procedure differ from the past·rules of procedure in such a matter. The only current rule which even
winks at this situation is that contained in 29 CFR 2700.63.
It has two paragraphs: Subparagraph (a) provides generally,
"When a party fails to comply with an order of a judge or
these rules, an Order to Show Cause shall be directed to the
party before the entry of any Order of Default or Dismissal."
Subparagraph (b) provides, "Penalty Proceedings. When the
judge finds the Respondent in default in a civil penalty proceeding, the judge shall also enter a summary order assessing
the proposed penalties as final and directing that such
penalties be paid."
In analyzing this rule, I first note the first paragraph
generally applies to all proceedings before the Commission.
The second paragraph [refers[ specifically to penalty
proceedings.
The first paragraph requires an Order to Show Cause
shall be directed to a party before the entry of any default;
however, it applies only where a party, "-- fails to comply
with an order of a judge or these rules."
In this case, there is no failure of Respondent to
comply with an order or any rule. The Respondent in this
case has had a reasonable opportunity for hearing at a site
he requested -- or it requested -- and has failed to take
advantage of that right.
I therefore conclude that it is not necessary to issue
an Order to Show Cause in these proceedings. In so finding,
I note there is no specific rule in the current procedural
rules covering the situation where a party does not appear
at a hearing.
In the interim procedural rules which preceded the
current rules, Regulation 2700.26 provided specifically,
where the Respondent fails to appear at the hearing, the

694.

judge shall have the authority to conclude that the Respondent has waived its right to a hearing and contest of the
proposed penalties and may find the Respondent in default.
Where the judge determines to hold Respondent in default,
the judge shall enter a summary order imposing the proposed
penalties as final, directing that such penalties be paid.
We have no such rule in the current rules. The situation is left uncovered by the current rules. In this situation, I believe ·the answer is contained in rule -- or let me
rephrase that -- that the ant-;wer is [found] by reference to
two of the current rules, of that contained in 29 CFR 2700.60
and that contained in 2700.63.
2700.60 provides, Any party does have a right to present his case or defense by oral or documentary evidence and
to submit rebuttal evidence and the like."' That is a right
that a party has.
2700.63(b) then provides that if I find a party in
default I shall enter a summary order assessing the proposed
penalties as final.
I believe in this case that the Respondent has waived
its right to a hearing and I so find. The Respondent has
unnecessarily delayed this proceeding once before; and while
it was not found to be in default, I am not inclined to
permit it be continued to delay the processing of such proceedings on the basis that it just has this one attorney or
two attorneys who are unable to handle the great amount of
business the Respondent has before the Commission.
In conclusion, I am adopting the rule which I gather
will go before the Com~ission and which will either be
approved or rejected but in the process of which we hope we
should get some clarification as a result of this case. I am
going to adopt the rule that where Respondent is given reasonable notice of a hearing and fails to appear or declines
to appear at such hearing, it has waived its right -- and I
underline the word right -- to present its case at a hearing
on the record as provided in 29 CFR 2700.60(b); and that in
s.uch circumstances it is proper for the Administrative Law
Judge to find the Respondent in default and pursuant to
29 CFR 2700.63(b) to enter a summary order assessing MSHA's
proposed penalties as final.

*

*

*

*

*

*

Before closing, I am going to indicate one other item
that I believe is pertinent in these proceedings to aid the

*

Commission and perhaps any court subsequently down the line
that may be reviewing this matter, and that is the nature of
the Commission's hearing process and the problems which are
involved in setting these hearings.
In the past two years and since the passage of the 1977
Safety Act, the docket, I believe, of many of the Commission
judges -- there are something like fourteen in Arlington and
four now in Denver -- the dockets, that is, the number of
cases they are. carrying has increased dramatically. I am now
carrying approximately twice as many cases as I was two years
ago. I do not sit, for example, as a United States District
Court Judge does, in a single site or two sites. The hearings which I hear are, as I previously indicated, spread out
all over the country. I have, for example, a hearing trip
set up in March, next month, which requires me on Tuesday to
have a hearing in Wheeling for two days and then starting
two days later I'll be in Pomeroy, Ohio, beginning on a
Thursday morning; the following Monday morning, I'll be in
Prestonsburg, Kentucky, and the following Wednesday, I'll be
back here in Charleston. If attorneys in any of those cases
began calling me up after I had set up such a schedule
saying, "Look, I've got to go somewhere else, I've got
another hearing elsewhere," it would be impossible to start
to process any of these cases.
These are Mine Safety and Health cases and the Congress
has given these cases quite a bit of priority. I have had
many times in the past lawyers call me up saying, "Look,
I've got a traffic court case the same day, I can't make that
Mine Safety case." It has been a rare situation where it has
been possible to grant these types of continuance with that
type of situation existing; that is: a very heavy docket with
the hearing sites literally strung out all over the country
and with numerous lawyers involved.
I can recognize that an attorney's livelihood and the
practice of his profession is important to him. Mr. Callahan
has sent a letter around to various of the administrative law
judges in the past indicating a long list of fairly large
companies he represents in these proceedings, and he has many
cases; and it is certainly a credit to him that he undertakes
to represent these clients. On the other hand, our moving
this large number of cases cannot be.dependent on his availability or any one or two or three attorneys in a given case.
I hope that this proceeding will result in a good look on the
part of the Commission as to the necessity of moving the
large number of Mine Safety cases we presently have.
The commission in total has no more judges -- actually,
it has less working judges under the 1977 Act then it had

696

under the '69·Act, even though the case load has increased by
a great amount and the hearings are held now practically
everywhere in the United States.
I would note the hearings are by and large much more
difficult to process, there are more procedural battles
going on, there are more prehearing matters to be disposed
of; so some sense of reality has to now be adopted so these
cases can be handled and be disposed of.
The commission has previously held that the hearings
have to be held in the area where the mines are located.
That takes time -- that takes travel time and the like. I
hope the rule that I have indicated on the record, which I
believe is a reasonable one, will be adopted by the
Commission in this case. That simply is that where the
Respondent has been given a reasonable notice of hearing and
it fails to appear, it has waived its right to present its
case on the record as provided in 29 CFR 2700.60. And that
in such event, it is proper for the Administrative Law Judge
to find the Respondent in default and to enter a summary
order assessing MSHA's proposed penalties as final. That
procedure had been in the interim procedural regulations,
and under the current regulations a gap appears. So if a
reasonable rule is not filled in here, I would estimate that
every Administrative Law Judge at the commission will soon
have stacks of cancelled hearings in their office; and we
will just simply create a complete backlog of these hearings,
human nature being such as it is and lawyers being the way
they are, they will put off, if they can, these cases. If the
judges are going to conscientiously try to whack away at the
large number of cases, we have to have some sort of reasonable procedures we can work with.
I do find the Respondent in default on the basis that I
have previously indicated, and I assess the Respondent in
Docket Number HOPE 79-6-P a penalty of six hundred ninety
dollars ($690) for the violation of 30 CFR 75.200 described
in Order of Withdrawal Number 045973, which issued on
March 27, 1978. I also assess a penalty against Respondent
in Docket Number HOPE 227-P of five hundred thirty dollars
($530) for the violation of 30 CFR 75.503 contained in Citation Number 044189 dated June 14, 1978; and direct that these
penalties be paid to the Secretary of Labor on or before
thirty days after the receipt of my writeen order which will
is.sue in the near future.

1

Michae 1 A. Lasher, Jr., Judge

697·

Distribution:
Eddie Jenkins, Esq., Office of the Solicitor, u.s. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Gary w. Callahan, Esq., Sewell Coal Company, Levanon, VA 24266
(Certified Mail)

THE PITTSTON COMPANY
COAL GROUP
LEBANON, VIRGINIA 24266

November 1, 1979

he Honorable
dministrative Law Judge
ederal Mine Safety and Health
Review Commission
015 Wilson Boulevard
rlington, Virginia 22203
ear Judge
On occasion I receive from your off ice a notice .that trial
r hearing has been scheduled for a case of one of the divisions
f The Pittston Company, and often I already have a hearing or
ther matter previously scheduled. Since I handle all MSHA and
SM matters for the companies listed below, my schedule of open
ates is somewhat limited.
I would appreciate, then, if you
ould call or otherwise advise me of a prospective date prior to
he time a case is set for hearing.
Amigo Smokeless Coal Company
Badger Coal Company
Buffalo Mining Company
Clinchfield Coal Company
Eastern Coal Corporation
Elkay Mining Company
Evergreen Industries, Inc.
Excel Development, Inc.
Jewell Ridge Coal Corporation
Kentland-F.lkhorn Coal Corporation
Rail-River Terminal Company
Ranger Fuel Corporation
Sewell Coal Company
The Maple Company, Inc.
The Sycamore Company, Inc.
Sincerely,

:wc/ksg
699

NOV 51979

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

March 13, 1980

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

Complaint of Discharge,
Discrimination, or Interference
Docket No. VA 79-141-D

THOMAS ROBINETTE,
Applicant

United Castle Mine No. 1

v.

UNITED CASTLE COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Swain, Esq., and Kenneth L. Stein, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Applicant;
Michael L. Lowry, Esq., Ford, Harrison, Sullivan,
Lowry and Sykes, Atlanta, Georgia, for Respondent.

Before:

Chief Administrative Law Judge Broderick

Statement of the Case
On September 20, 1979, Applicant filed an Application for Temporary Reinstatement of Thomas Robinette together with a finding by the
Secretary of Labor that the complaint of discriminatory discharge had
not been frivolously brought. Based on the application and finding,
and pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2),
an order was issued September 24, 1979, requiring Respondent to temporarily reinsta!-e Thomas D. Robinette in the position from which he was
terminated or in a comparable position at the same rate of pay and
with the same or equivalent work duties as were assigned him immediately prior to his termination. The complaint was filed on
October 11, 1979, alleging that Robinette was discharged on or about
June 4, 1979, because he filed a discrimination complaint with MSHA,
and because he complained about working on the belt feeder without an
operative cap light.

Pursuant to notice, the case was heard on the merits in Norton,
Virginia, on November 28, 1979. Thomas Robinette, Teddie Joe Fields

700

and Isaac W. Fields testified on behalf of Applicant. Fuller B.
Helbert, Denver Cook and Percy Sturgill testified on behalf of Respondent. Both parties have filed posthearing briefs: To the extent tha.t
the contentions of the parties are not accepted in this decision, they
are rejected.
STATUTORY PROVISION
Section 105(c) of the Act provides in part:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal
or other mine subject to this Act because such miner,
representative of miners or applicant for employment has
filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because such
miner, 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 or is about to testify in any such proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory right
afforded by this Act.
(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 Secretary's receipt of the complaint, and if the Secretary finds that such complaint
was not frivolously brought, the Connnission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending

701

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 granting
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 violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the miner to his former position with back
pay 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.

*

*

*

*

*

*

*

Issue
Whether Thomas Robinette was discharged because of activity protected under section 105 of the Federal Mine Safety and Health Act?
FINDINGS OF FACT
1. In May and June 1979, and prior thereto, Respondent United
Castle Coal Company was the operator of an underground coal mine in
Wise County, Virginia, known as the United Castle Mine No. 1.
2. In May and June 1979, and prior thereto, Applicant
Thomas D. Robinette was employed by Respondent in its United Castle
Mine No. 1 as a miner.
Complaint to MSHA May 30, 1979
3. When Robinette reported for work on May 30, 1979, he was
informed by the section foreman, Percy Sturgill, that another miner,
Ike Fields, had been assigned Robinnette's former job as miner helper
and that Robinette was to work on the belt feeder as the feeder man, a
lower paying job.

702

4. The reason given for the transfer was the fact that Fields
had filed a complaint with MSHA alleging that he was removed from the
position of miner helper in January 1979, when he refused to operate
the miner "because there was no air."
5. When Fields was put back on the miner helper job in May 1979,
he and the Respondent signed an agreement wherein Fields withdrew his
complaint and Respondent agreed not to interfere with miners in the
exercise of their rights under the Act.
6. After finishing work on May 30, 1979, Robinette went to the
MSHA office in Norton, Virginia, and executed a complaint alleging
discrimination on the part of Respondent in changing his work status.
7. There is no evidence as to the nature of the discrimination
alleged in the MSHA complaint. Specifically, there is no indication
that Robinette charged that he was given a new job because of safetyrelated activities.
8. On May 31, 1979, when Robinette reported for work, Sturgill
told him that he would be assigned to driving a shuttle car and would
receive the same rate of pay as a miner helper. This job was to begin
the following Monday. On May 31, Robinette worked about 2 hours on the
miner and the remainder of the shift on the belt feeder.
9. On May 31, 1979, Robinette told Sturgill that he had filed a
discrimination complaint with MSHA.
10. Sturgill replied that if Robinette wanted "to play it that
way," he could play it that way too. He also told Robinette that in
the future he must bring a doctor's slip anytime he is off work. Previous company policy required a doctor's slip for 2 or more days
absence.
Discussion
.
I have accepted Robinette's version of this conversation which is
different from Sturgill's version largely because Robinette's testimony is indirectly corroborated by the testimony of Isaac Fields (Tr.
47-48). Sturgill was clearly upset because in trying to resolve one
MSHA complaint (that of Fields), he apparently precipitated another
(that of Robinette).
11. The nature of the complaint made to MSHA by Robinette is not
clear. Robinette testified that the complaint was filed "because of my
job being changed and my pay rate being cut." There is no evidence
that it was related to any health or safety matter.
12. On May 31, 1979, Robinette worked for a time operating a
shuttle car, and on relief as a miner helper. He ran over a cable

703

with the shuttle car and destroyed some line curtain with the miner.
Sturgill reprimanded him for these incidents. He was also reprimanded
by Tiltson for failure to properly grease the feeder tail shaft.
THE INCIDENT OF THE CAP LAMP CORD
13. On June 1, 1979, while Robinette was working on the belt
feeder, it went out of line. In attempting to realign it, Robinette's
head lamp cord was caught in the roller and severed. He called to the
shuttle car operator to inform Sturgill that he had no light and would
have to shut down the feeder. There was no other illumination in the
area.
Discussion
It is Respondent's position that the cutting of the Robinette's
lamp cord was not accidental but deliberate; and that it was caused not
by being caught in the roller, but by being cut with a knife or other
sharp instrument. Respondent attempted to demonstrate in the courtroom
and by testimony the impossibility of a cord being severed in the way
Robinette's was by being caught in a roller. I find that Respondent
failed to establish these contentions, and there is no adequate reason
to reject Robinette's testimony.
14. Robinette shut down the feeder because he believed that it
was not safe to work in an unlighted area.
15. The belt feeder operator is required to remove or break up
rocks moving on the belt to permit the coal to pass. It is necessary
on occasion to shut down the feeder to remove larger rocks. To permit
the belt to continue running when the operator has inadequate illumination would create a hazardous situation for the operator and other
miners.
16. After some delay, Sturgill came to the area of the belt
feeder, and, as h~ approached, saw Robinette disconnect the mine phone.
Discussion
~binette denied that he disconnected the mine phone.
I accept
the testimony of Sturgill that he did so. His motive apparently was
frustration over his cap light being out and Sturgill's delay in
responding to his request for assistance.

17. Sturgill repaired Robinette's lamp and the mine phone. The
two men exchanged harsh words as to the shutting down of the belt
feeder, as to how th~ lamp cord had been. broken, and the disconnection
of the telephone. Sturgill told Robinette to come to the mine office
at the end of the shift.

704

18. Robinette went to the office and was scheduled to meet with
Jack Tiltson, Vice President of Respondent company, Denver Cook, the
Mine Administrator and Sturgill. Tiltson, however, was not available
at the time so Robinette went home.
19. After Robinette departed, Sturgill discussed the incidents
involving Robinette with Tiltson and Cook. Thereafter, Tiltson and
Cook went over Robinette's file which contained a number of warnings
for unsatisfactory work.
20. On Monday, June 4, 1979, ·when Robinette reported for work,
Tiltson told him he was discharged.
21. Prior to the actual discharge, an "Employee Warning Record"
was completed by Denver Cook and entered in Robinette's file. It
states "Employee became disobedient with section foreman. Was not
maintaining the belt feeder in a clean and safe condition, the job
requires. the feeder to be greased and shoveled at all times. Disconnected the mine phone interrupting communication." This was based on
information furnished by Sturgill at the meeting on Friday, June 1.
22. When Tiltson discharged Robinette, he told him that "it was
for what had happened that Friday, and what had happened in the past"
(Tr. 19). He stated that Robinette had no reason to shut down production because his cap lamp did not work. When Denver Cook raised a
question about operating the equipment without a light, Tiltson replied
that "Robinette could have got out of the way and that the tailpiece
would have took care of itself" (Tr. 41).
23. The effective cause for Applicant's discharge was his refusal
to continue operating the feeder after his lamp cord was cut. This was
a bona fide refusal to work under what he considered to be, and what
objectively were, unsafe conditions. The other reasons given for the
discharge--insubordination and inferior work--were not the primary
motives for the discharge.
CONCLUSIONS OF LAW
1. At all times relevant to this proceeding, Applicant and
Respondent were subject to the provisions of the Feder.al Mine Safety
and Health Act of 1977.
2. The undersigned Administrative Law Judge has jurisdiction
over the parties and subject matter of this proceeding.
3. On June 4, 1979, Applicant Thomas Robinette was discharged
from his position with Respondent because of his refusal to work under
unsafe conditions. This refusal is activity protected under the Act.
4. Applicant Thomas Robinette was discharged and discriminated
against in violation of section 105 of the Act.

705

..

Discussion
Respondent established that Applicant's work was less than satisfactory. Applicant was obviously belligerent and uncooperative with
his foreman Sturgill as a result of his change in job classification.
The evidence clearly establishes, however, that the effective cause
for his discharge was his refusal to continue operating the belt feeder
after his cap lamp cord was cut. Applicant concluded, and I agree with
him, that to continue operating the belt feeder would be hazardous.
Refusal to continue working under hazardous conditions is protected
activity under the Act. See Phillips v. Interior Board, 500 F.2d 772
(D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1974).
ORDER
Respondent, United Castle Coal Company is ORDERED:
1. To reinstate Applicant Thomas Robinette to the position from
which he was discharged on June 4, 1979, or to a comparable position at
the same rate of pay and with the same or equivalent work duties. The
reinstatement shall take effect as of June 4, 1979.
2. Respondent is forther ORDERED to pay for the time lost by
Applicant prior to the Order of Temporary Reinstatement issued herein,
with interest thereon at the rate of 9 percent per annum.
3. Respondent shall remove all references to the discharge of
Applicant from his personnel file.
4. Respondent shall post a copy of this decision on the bulletin
board at the mine office for a period of 30 days.
5. The Secretary of Labor is directed to file with the Commission
a proposal for a penalty for the violation of the Act found herein to
have occurred. Because the Act and the Commission Rules of Procedure
provide specific steps to be taken in connection with penalty assessments, I declined to entertain evidence during this proceeding involving
a claim of discrimination, and I decline to assess a penalty for the
violation found herein. I conclude that a separate proceeding is
required.

(}viu.6 )18r~b/'le/L-

J

James A. Broderick
Chief Administrative Law Judge

706

Distribution:

Michael L. Lowry, Attorney for United Castle Coal Company, Ford, Harrison,
Sullivan, Lowry & Sykes, 1400 Harris Tower, 233 Peachtree Street, N.E.,
Atlanta, GA 30303 (Certified mail)
James H. Swain, Esq. and Kenneth L. Stein, Esq., Attorneys, Office of the
Solicitor, U.S. Department of Labor, Room 14480 Gateway Building, 3535
Market Street, Philadelphia, PA 19104 (Certified mail)
Harrison Combs, Attorney, United Mine Workers of America, 900 15th Street,
N.W., Washington, DC 20005
Mr. Thomas D. Robinette, General Delivery, Exeter, VA 24249

707

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5209 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 7 1980

Civil Penalty Proceeding

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

Docket No. DENV 79-245-PM
A.O. No. 04-02511-05001

v.
Eagle Mountain Mine & Mill
KAISER STEEL CORPORATION,
Respondent
DECISION
Appearances:

Judith G. Vogel, Attorney, Office of the Solicitor, U.S.
Department of Labor, San Francisco, California, for the
petitioner;
Daniel B. Reeves, Esquire, Oakland, California, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), on
January 26, 1979, charging the respondent with six alleged violations of
certain mandatory safety· standards found in Part 55, Title 30, Code of
Federal Regulations.
Raspondent filed a timely answer contesting the civil penalty proposals
and requested a hearing in Indio, California. A hearing was convened on
November 6, 1979, and the parties appeared and participated fully therein.
The parties waived the filing of written proposed findings and conclusions
but were afforded an opportunity to present oral arguments in support of
their respective positions.
Issues
The principal issues presented in this proceeding are: (1) whether
respondent has violated the provisions of the Act and implementing regula·tions as alleged in the proposal for assessment of civil penalties filed

in this proceeding, and, if so, (2) the appropriate civil penalty that
should be assessed against the respondent for the alleged violations based
upon the criteria set forth in section llO(i) of the Act. Additional
issues raised by the parties are identified and disposed of in the course
of this decision.
In determining .the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: ~l) 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, ahd (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,
30 u.s.c. § 801 ~ ~·
2.

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

3.

Commission Rules, 29 CFR 2700.1 et~·

Stipulations
The parties stipulated to the following (Tr. 1-2):
1. Respondent has no prior history of violations for the period June 16
to 29, 1978, the dates of the inspection in question, and the effective date
of the Act, March 9, 1978.
2. The civil penalties assessed for the violations in question will
not impair respondent's ability to remain in business.
3.

The mine in question produces 4 million tons of iron ore per year.

Dismissal of Citation
Petitioner's motion to dismiss Citation No. 375455, June 27, 1979,
30 CFR 55.14-6, on the ground that petitioner cannot sustain its burden of
ptoof as to the fact of violation was ~ranted (Tr. 2) and the citation is
vacated.
Petitioner's Testimony and Evidence
Citation No. 375204, June 28, 1978, citing 30 CFR 55.20-3, states:
"The take-up pulley balcony was not clean and prevented safe access for
2 maintenance employees who were changing a counterweight bearing."

709

MSHA inspector James w. Shroyer confirmed that he issued the citation in
question after inspecting the balcony area at the take-up pulley on the H-4
conveyor belt. He observed an accumulation and buildup of encrusted materials that covered the entire balcony, and i t had built up to a height of some
18 to 20 inches from the edges of the center of the platform. The encrusted
materialS fell,. off _o.f· the conveyor belt .as it came around the counterweight
sloping outwa1·d and even with the toeboard. Employees have access to the
balcony by. an open door which provides maintenance and lubrication for the
pulley and moving parts. The unclean balcony with the buildup of materials,
and the presence of tools, presented slipping and tripping hazards to
employees on the balcony as well as the area below the balcony where tools
could fall off and injure employees. Lubrication grease was also present on
the balcony and this presented a slipping hazard in that employees could
slip througiL the handrailings and fall to the area below injuring themselves
against metal structures. Employees may receive a range of injuries from
broken bones to fatal injuries, and the respondent should have known about
the material buildup on the balcony. The hazardous conditions were abated
within the time s.pecifiad after respondent pulled employees off of one job
and assigned them to clean up the balcony, and he was present shortly after
the hazardous conditions were corrected (Tr. 4-12).
On cross-examination, Inspector Shroyer testified that the function of
the conveyor belt is to transfer ore waste from one plant area to another,
and he believed that the hardened materials came from the conveyor belt. The
materials consisted of.ore waste one~quarter to three-eighths inches thick
located outside the plant building. The materials had hardened because they
had not been disturbed by employees doing. repair work, and the presence of
the materials on the iron balcony surface made it raore of a tripping and
slipping hazard to employees because it was not packed in some areas, and
this could ca~se an employee to loose his footing. As the material was
dumped, part of· ...it would stick to the conveyor belt, and after it dried, the
materials drqpped off on to the balcony area. In order to prevent accidents,
a 42-inch guardrail enclosed the balcony and 3-inch toeboards were also there
to prevent employees and materials from being knocked off the balcony into
the area below. Toeboards are required in platform areas which are elevated
and when men and equipment are in the area below.
Inspec_tor Shroyer stated that employees are on the balcony in question
only when they are performing maintenance and repair work, and employees
usually travel in the area directly bel:ow the balcony. If an employee were
to fall, the toeboard may prevent him from slipping over the edge, but based
on the type and slope of. material, an employee might have a difficult time
holding onto anything to prevent his fall if he had been working with lubrication grease. There was no grease· on the floor and it is not probable that
an employee would fall. off the 20-.foot balcony. The· balcony is not a normal
work area and in a normal production sh~ft employees would be there only to
perform.maintenance. HP. observed no.one working on. the balcony, but a
supervisor told him that: two men had heen working there,- and he observed
tools and equipment present which indicated to him that men had been working
there shortly before he arrived on the scene (Tr. 12-21).

710.::

Inspector Shroyer stated that the presence of the material on the iron
balcony presented slipping and tripping hazards, and when an employee walks
out the door going towards the take-up pulley, the material buildup presents
a tripping hazard. The material buildup area was 18 to 20 inches up around
the conveyor belt slnping downward to 3 inches to the right of the toeboard
on the outside, and ~he balcony itself is 4 feet wide and 7 feet long (Tr.
22). In view of the buildup of materials, he did not believe the toeboards
were serving the purpose of keeping materials or tools from falling off the
balcony (Tr. 23-26).
In response to bench questions, the inspector testified that he believed
the violation was more of a housekeeping problem, and had the balcony been
cleaned he would not have issued a citation •. He did not believe there was
a violation of any "safe access" standard, and he observed no other violations of safety standards in the balcony area (Tr. 27-28).
Respondent's Testimony
Plant superintendent M. A. Gaines testified that the material found on
the iron balcony came from two 6-inch openings of the metal housing which
built up on the grating of the platform, and the buildup resulted from the
scraper belt wash system on the conveyor being down. ·The bottom of the
trough had corroded away, and the belt wash system could not be repaired
while it was in operation during production. The belt wash system could
be repaired on two regularly scheduled days per week, and material spillage
from the conveyor belt is cleaned up on a routine basis depending on the
area and how frequently the equipment is required to be greased. If the
scraper belt system was working, laborers would not be required to clean
up the material spillage. Laborers apparently neglected to clean the area
because it is not a normal work area but is only used while mechanics are
changing and lubricating bearings. After the inspection, the material
buildup was knocked down to a flat surface to 2-1/2 feet wide between the
take-up pulley and the handrail. The two mechanics in question were standing on the built up material while changing the bearings. If there is a
material buildup on the platform, the normal procedure is to contac·t the
maintenance emplo;y.ees to clean the area first before they go in (Tr. 29-33).
On crosfi~examination, Mr. Gaines described the belt conveyor wash
system and indicated that the ma't;erial accumulations buildup was caused by
the fact that the belt wash system was down, but that it could also have
been caused by a pump located at the discharge end of the conveyor. On
the day in question, both conveyor be1ts were down for maintenance and the
walkway beneath the conveyor is used twice a year by maintenance employees
while replacing belt idlers and perfor~ing clean-up duties. After the
spillage was leveled out, it was 6 inches high and 4 inches at the outside
and even with the 4-inch toeboards (T~. 34-37).
William E. Eastgate, respondent's industrial safety manager, testified
that he accompanied the inspector during the inspection and observed the
conditions on the balcony in question. He did not believe a tripping hazard

711

existed because the materials were very fine and did not contain any rocks
or significant mass which would cause one to trip. He conceded there was a
buildup and one could leave footprints in it while walking over the area.
He did not believe there· was a slipping hazard present even though the surf ace material was damp, and he indicated that one would use due caution when
walking over the footing conditions (Tr. 38-39).
On cross-examination, Mr. Eastgate estimated the height of the materials to be approximately 10 to 12 inches at the take-up pulley frame, and
that it was not level throughout the. balcony aea. He did not believe someone could trip or slip because "when you walk in an operation like this,
you are always observant of footing conditions" and "there is no such thing
as an idyllic situation" (Tr. 40).
In response to bench questions, Mr. Eastgate stated that maintenance
was being performed on the equipment and that two mechanics were present
(Tr. 4l)o
On redirect examination, Inspector Shroyer testified that he could not
recall that two mechanics were present when he arrived at the scene and
since there were so many people in the.inspection party, he may have assumed
they were part of that party. The amount of buildup of materials present
increased the possibility of tools falling off the balcony to the area below
(Tro 42-43).
Citation No. 375450, June 27, 1978, citing 30 CFR 55.20-3(a), states:
The walkways on the C-1 conveyor were not kept clean of
loose materials that restricted the passage on the walkways.
Material spills and sections of used metals were blocking
access on the walkways in the tunnel section and on the outside sections of the walkways on the conveyor.
Petitioner's Testimony and Evidence
MSHA inspector Arthur s. Carisoza confirmed that he issued the citation
in question after observing material spills and sections of used metal material blocking the access on the walkways inside the conveyor tunnel and the
inclined elevated area outside the tunnel. The C-1 conveyor has a walkway on
both sides which is encircled by a headboard, and the walkway is 24 inches
wide with toeboards, handrails, headrails, and a graded. metal floor. The
conveyor is elevated in excess of 20 feet starting from gr:ound level, and the
spillage he observed on the walkway on the outside section of the C-1 conveyor consisted of precrushed iron ore and sections of the iron frame structure used to support the braced end. The spillage was scattered beyond the
width of the walkway running one-third down froin the headpoint of the conveyor, and the edge of the toeb?ards ranging from 2. to 8 inches• The spillage inside the tunnel consisted of iron ore near· the chutes and jagged and
straight,.-edge metal lying on the tunnel.walkways. The tunnel· is 8 feet high
with a walkway on one side running down into the tunnel 150 feet, and
employees used this walkway to service the conveyor and check for spillage.

712 ..

~

·Inspector Carisoza testified that while he did not see any employees
near the conveyor, there were footprints in the tunnel, and it appeared that
employees went inside the tunnel to clean up the spillage and to repair the
conveyor roller (Tr. 45-50). The spillage on the inclined elevated section
outside the walkway created a slipping, falling,.and stumbling hazard to
employees walking down the walkway. The spillage inside the tunnel created
several hazards to employees, including restricted head clearance, tripping,
falling, and stumbling. In order to walk through the tunnel, employees
would have to climb over the material piles, and there was not enough room
to walk cleanly around the material piles. An employee could slip on the
loose material on either section of the tunnel and receive a sprain, fractures, lacerations, and a concussion if he struck his head •. The water on
the floor, the wet conditions between the piles,- loose dust, and the practice
of employees wearing dark sun glasses are conditions that increased the likelihood of accidental injury inside the tunnel. He believed the respondent
should have known that loose materials, including the iron and metal pieces,
were located on the conveyor walkways, and employees should be instructed
to inspect the area for spillages at least once per shift, and materials
should be removed as soon as the repair work is completed. Respondent began
to clean the materials off of the walkways on the day of the inspection,
and the citation was abated within the time specified (Tr. 50-53).
Citation NQ• 375451, June 27, 1978, citing 30 CFR 55.20-3, st?tes:
Material spills in the C-2A tunnel were restricting the
passage on the walkway. Material spills were causing workers
to expose themselves to tripping hazards and limiting head
clearances while traveling through the tunnel.
Inspector Carisoza confirmed that he issued a second citation after
observing material spills in the C-2A tunnel area, and this material consisted of a fine type of iron ore that rose from 3 feet from the draw chutes
to the top of the conveyor. Although he did not see any employees inside
the C-2A tunnel, there were footprints present. Employees are in the tunnel
to repair the conveyor and unplug the draw chutes. The loose material and
spillages in the C-2A tunnel posed the same type of hazards to employees as
the C-1 tunnel, including lack of head clearance, injuries, and falls. Water
on the walkway, bad illumination from burned-out bulbs, and a dusty atmosphere were conditions that increased the likelihood of accidental injury and
the conditions were subsequently abated by the respondent within the time
specified (Tr. 53-56).
·on cross-examination, Inspector Carisoza agreed: that belt.spillage will
occur during mining operations, but that methods should be utilized to insure
a cleanup to minimize the problem. He did not believe that the presence of
cleanup crews in the tunnel while the belt was operating presents a hazard,
but a'better practice would be.to clean up while the belt is down. He
described the walkways in the C-1 conveyor tunnel and the spillage which he
observed. The loose spillage on the elevated east walkway ranged from 2 to
9 inches. The walkways were guarded by guardrails andtoeboards and it was

713•.

not probable that anyone would fall off the elevated walkway. He clarified
the statement.made on his inspector's statement at the time the citation was
issued by stating that the probability of one slipping and falling was present and he slipped while on the conveyor .belt walkway. If one did not walk
with extreme caution it would be more likely thannot that he would slip.
He saw no one on the walkway and an employee should be able to observe the
obstructions.
Inspector Carisoza stated that he found more than three areas on the
C-1 conveyor feed point chutes whicb. had accumulated materials present, and
the accumulations at those points were as high as the conveyor belt itself,
in excess of 2-1/2 feet sloping. at an angle. A person could. slip if he tried
to walk over those obstructions. Persons in the• inspection party had to walk
over the obstructions, but none of them slipped or fell, and this was because
they exercised extreme caution in climbing over the areas. The tunnel is
8 feet high and employees are required to wear hard hats. ·The accumulated
materials consisted of iron ore and dirt and it was not· flammable or explosive, and the metal materials consisted of used materials, including a belt
idler. He observed no work being performed in the tunnel while he was there,
but believed that work had been performed there before he arrived (Tr.
57-64). With regard to the C-2A tunnel, the accumulated materials consisted
of a spill in excess of 2-1/2 feet and several obstructions (Tr. 64).
Mr. Carisoza indicated that the extraneous materials cited were found
in the C-1 tunnel and not the C:-2 tunnel. The materials were blocking the
access and presented a tripping hazard. One employee is usually in the
·tunnel walkways to check the flow nf mat.erials,- but they· are not regular
walkways or travelwa'ys used by a.11 employees •. Thec.itations were abated in
good faith (Tr. 64-67). The citations were personally served on respondent
at the conclusion of the post-inspection conference each day (Tr. 82).
While he recalled more than one piece of loose material on the C-1 walkway,
he could not specifically remember what they were but indicated they consisted of used metal parts which he believed constituted tripping hazards
which obstructed an employee's travel access through the area (Tr. 82-84).
Respondent's Testimony
Superintendent Gaines explained the functions of the conveyors in question and he testified that no one· is allowed in the C-1. tunnel while the
conveyor is running. Employees are issued clear glasses and sun glasses
for use in the tunnei, and cleanup crews are sent in to clean up the walkways
while the conveyors are down before _maintenance per-sonnel go in. In the C-2
· tunnel, designated personnel are present while the conveyor is running, and
except for the tail pull,ey locations, cleanup is normally done while the
conveyor is down. Due' to the· restrictions in the amount" of room in the
tunnel, cleanup is not performed while the .conveyors are running. Although.
there are two wall~.ways in the C-1. tunnel,: under normal circums:tances only the
east one is .used and this. would be infrequently while maintenance is being
performed. (Tr. 6 7-71).

714:

Mr. Gaines confirmed that an idler frame and roller was in the C-1 tunnel on the west walkway. It was left there after an idler was changed and
had not been removed, but it was subsequently immediately removed. The
inspector complained about dust and small pebble materials on the inclined
walkway, and if one is not careful he could slip on it. Mr. Gaines also
confirmed the presence of an obstruction at one location in the C-1 tunnel,
and he described it as "14 inches across the face and six inches deep." It
was halfway down the tunnel and pushed under the conveyor belt. He could
not recall any 2-1/2-foot obstructions in the feed chute. Cleanup is performed once a week in the C-1 tunnel and as required in the c~2 tunnel. He
also confirmed the presence of the obstructions in the C-2 tunnel which were
caused by material buildup at the bottom of the skirtboard, and he indicated
that an employee would have to maneuver his way ?round the pile of spillage,
but he could do so safely (Tr. 71-73).
On cross~examination, Mr. Gaines testified that there is no occasion
for employees to ·be in the C-1 tunnel while the conveyor is operating. A
chain barricade is in place while the conveyor is running, and following
the inspector's suggestion, a sign was also put up at ·the tunnel entrance.
The material buildup was not on the tunnel walkway but under the conveyor
belt, but the used idler and roller were on the walkway. There was a
2-1/2-foot buildup of material at the bottom of the ·skirtboard near the
south feeder in the C-2 tunnel, and he and the inspector had ·to walk over
i t .(Tr. 73-77).
In response to bench questions, Mr. Gaines stated·that .other than the
idler frame and roller, he saw no other us.ed metal materials in the C-1
tunnel. However, at the tail end of the C-.2 tunnel, pan liners were leaning against the wall and they were left there from the previous day when
maintenance was performed. The C-2 tunnel had been cleaned the day of the
inspection, but he could not recall when the C-1 tunnel was last cleaned,
but both are cleaned at least once a week on the down days. He did not
consider 2-1/2 feet of spillage to be normal (Tr. 78-79, 80).
Citation No. 375452, June 27, 1978, citing 30 CFR 55.17-1, states:
Sufficient illumination to provide safe working conditions and travel through the C-2A tunnel conveyor were not
maintained due to broken and burned out bulbs in the tunnel section of the conveyor. Several areas in the tunnel
were not illuminated sufficiently and limited
person's
visibility while in the tunnel.

a

Citation Noo 375453, June 27, 1978, citing 3-0 CFR 55.17-1, states:
Sufficient illumination to provide safe working conditions and travel through the C-2B tunnel conveyor were not
maintained in the tunnel section of the conveyor. Several
bulbs were broken and the area at the tail section was not
illuminated to provide safe visibility in that section.

?.15

Petitioner's Testimony
Inspector Carisoza confirmed that he issued two citations for illµmination violations on June 27, 1979. With regard to the C-2A tunnel, he stated
that he did not count the number of broken and burned-out light bulbs, but
there were at least three which were broken. He walked the entire length of
the tunnel and his visibility was impaired due to the broken and burned-out
bulbs. He did not have clear floor vision in the dark areas and he had to
take extra precautions when walking from area to area so that his eyes could
focus. He had no additional lighting source with him because he was not
aware of the conditions present when he entered the tunnel. In his opinion
"sufficient illumination" is that illumination which provides enough illumination for a person to walk.safely and travel where his visibility is not
impaired and this was not.provided in the C-2A tunnel because one could not
see the travelway, walkway, or structures in certain areas without straining
the eyes. The hazards presented included tripping and falling over spillage,
obstructions, and wet areas, and water was on the flooring. Although he saw
no employees in the tunnel, he observed footprints which indicated that
employees.had been there. He believed the respondent should have known
about the conditions cited because the tunnel illumination should be checked
at the beginning of the shift and burned-out bulbs should be reported. The
conditions were abated within the time specified by replacing the defective
light bulbs (Tr. 85-88).
With regard to the C-2B tunnel, Inspector Carisoza stated he could not
recall the number of broken bulbs, but there was an excess of three. Due
to the restricted visibility;·· he could. not. tell whether there was any light
in the tunnel tail section which measured some 15 to 20 feet. He walked to
the tail section and since the lighting was bad, 'he exited the tunnel and
advised mine management to "fix the lighting before we.go in there." He
observed two employees coming out of the tunnel, and in his view, the illumination was insufficient to provide safe working conditions. The sufficiency
of the lighting is determined by the mine operator, and once installed, it
must be maintained in operable condition to provide sufficient illumination.
Had all the light bulbs been operating, the illumination would have been
adequate. Employees are in the tunnel to check rollers or perform maintenance a~d the hazards of lack of sufficient illumination consist of tripping,
stumbling, or striking solid objects and the head clearance is restricted.
The respondent should.have known about the conditions cited because routine
inspections would haye disclosed the conditions. The defective bulbs were
timely replaced (Tr. 88-93).
On cross-examination, Inspector Carisoza testified that some bulbs in
both tunnels were on, but he did not know the bulb wattage. He did not
determine the light fixture intervals, and he indicated that had twice the
amount of light been provided there would still be a violation if every
other· light is out~ He determines a violation on the basis of the effect
of .the illumination on visibility. As an exmple, if 20.lights are installed
and one:is burned out, if visibility is affected in the area of the burnedout light; that is a problem. A tunnel is approximately 150 feet long and

while he did not know how many light bulbs were on in the tunnels in question, there were more than three in each one. He saw no one working in the
C-2A tunnel, but if someone were there to perform work and took in a portable
light to provide sufficient illumination, that would comply with section
55.17-1. He did not have a light meter and could not estimate the footcandles of illumination in the tunnels (Tr. 93-97).
Inspector Carisoza testified that the hazards in the C-2A tunnel were
higher than those in the C-2B because of excessive spillage and the lighting at the location of the spills at two chutes was irisufficient. While
the locations where there were defective bulbs were not pitch black, one had
to be there awhile in.order to see, and even then visibility was marginal
(Tr. 97-100).
In response to bench questions, Inspector Carisoza confirmed that he
cited the violations because respondent failed to maintain the illumination
.as installed. Once an operator determines his lighting needs and installs
light fixtures, they are required to be maintained. He determined the lack
of sufficient illumination on the basis of the fact that light bulbs were
burned out and in those locations he could not se~. At -the time the citations were issued, the requirement that work places be routinely inspected
was not a mandatory standard (Tr. 102-105).
Respondent's Testimony
Superintendent Gaines confirmed that he was with.the inspector when the
conditions cited were observed •. He described· the tunnel areas in question
and indicated that the light fixture.s are spaced approximately .20 to 22 feet
·apart and.that each light bulb generates 200 watts. He·observed burned-out
bulbs but did not recall any two in a row being out. The work activity
performed in both tunnels is the same and the normal work activity in the
tunnels is very low. In his view, the hazards requiring visual detection
are slight, and while the heater areas would be the only problem areas, the
company is very conscious of the lighting in those areas. Bulbs are kept
in stock and replaced on a regular basis, and portable lights are stocked
and used as necessary. With the exception of the broken light fixture at
the tail pulley of the C-2B tunnel, he did.not believe the burned-out bulbs
presented a visibility hazard. No one was working at the tail pulley and
portable lights were available if work had to be performed at that location.
Due to the great deal. of vibration in the tunnels, lights can go out at any
time. Allowing for eye adjustments from.the outside natural light and the
.tunnel artificial light, he believed there was·sufficieut lighting to detect
any obstructions along the walkway, and employees carry:their flashlights
into both tunnels· (Tr. 106-110).
On cross-examination, ·Mr.·Gaines testified that.no portable lighting
was provided when he accompanied the inspector~ and while he usually carriei
a :f;lashlight, he could not recall whether he had.one with him. Employees
may or may not carry flashlights and this depends on.their judgment as to

717

the need for one at any given time. He confirmed that there was no lighting in the tail section of the C-2B tunnel due to a broken fixture, but the
walkway stopped at that location. The broken fixture was in a room which
encloses the tail pulley, and the only person who would have a need to be
there is a lubrication man (Tr. 115-117).
Findings and Conclusions
Fact of Violation
Citation No. 37520~, June 29, 1978~ and Citations 375450 and 375451,
June 27, 1978, charge the respondent with violations of. the provisions of
30 C.F.R. §§ 55.20-3 and 55.20-3(a)~ and the cited safety standards state
as follows:
At all mining operations: (a) . Workplaces, passageways,
storerooms, and service rooms shall be kept clean and
orderly. (b) The floor of every workplace shall be maintained in a clean and, so far as possible, a dry condition.
Where wet processes are used, drainage shall be maintained,
and false floors, platforms, mats, or other dry standing
places shall be provided where .practicable. (c) Every floor,
working place and passageway shall be kept free from pro~
truding nails, splinters; holes, or loose boards, as
practicable.
Citation No. 375204 concerns alleged accumulations. of materials in [:!.
balcony area of the H-4 take-up' pulley conveyor· belt, artd Citation Nos.
375450 and 375451 concern accumulations of materials on the walkways in the
C-1 and C-2A conveyor belt tunnels. In each instance the inspector found
that the materials impeded safe access for the employees and constituted
dangerous slipping and falling hazards. With regard to Citation No. 375204,
the inspector indicated that it was more or less a "housekeeping" violation,
did not believe it was a "safe access" violation, and· he observed no other
conditions constituting violations on the balcony area in question. The
other two citations resulted from used metal parts which were apparently
not removed from one tunnel area after maintenance, and ·relatively small
amounts of spillage which apparently resulted from a faulty conveyor belt.
With regard to the existence of the conditions as ~ited in each of the
three citations, I conclude and· find that MSHA's evidence and testimony
supports each of the citations and that the conditions- cited constitute violations. of the cited standards. 'l;'he testimony of the witnesses produced by
the respondent does not rebut the crucial testimony- of the inspector as to
the existence of -the materials accumulations in- question·,. but rather, goes
to the question of the seriousness of the ·conditions presented. Under the
circumstances, I find that MSHA has established the· ·fact ·of violation as to
each of the three cited citationso The cited standard requires that all
working places and passageways be kept clean.and orderly. and.based on the
testimony and evidence that work is in fact done -at each .of the locations

718'

cited, the areas in question were "working places" within the meaning of that
term as found in 30 C.F.R. § 55.2(d). Under the circumstances, all three
citations are AFFIRMED.
Negligence
With regard to Citation No. 375204, respondent's witness Gaines attributed the buildup of accumulations on the balcony area to a malfunctioning
scraper belt washer and a corroded trough. Although he indicated that
repairs could not be made while production was going on, I cannot conclude
. that the accumulations were something that occurred over a short period of
time or that respondent was totally unaware of them. To the contrary, I
find that the conditions cited should have been corrected earlier without
the need for a citation and that respondent failed to exercise reasonable
care to prevent the violation which it knew or should have known existed,
and that its failure to· do so constitutes ordinary negligence.
With regard to Citation Nos. 375450 and 375451 concerning the failure to
keep the cited tunnel walkways clean of material spills and extraneous materials, I conclude that the testimony and evidence adduced in these proceedings supports findings that the respondent was aware of the conditions and
that it failed to exercise reasonable care in correcting the conditions.
Superintendent Gains conceded that certain excess conveyor parts such as
rollers, an idler frame, and pan "liners were ·left in the tunnels after prior
maintenance had been performed, and while he alluded ·to certain cleanup
procedures, I am not convinced that cleanup in the tunnels was performed in
any regular or routine way •.. Under the· cir·cumstnaces ~ -I. find that the citations resulted from ordinary negligence.
Gravity
The citation issued by the inspector concerning the balcony (375204)
states that failure to clean the balcony area "prevented safe access."
However, this conclusion is contradicted by the inspector's testimony which
indicates that this was not the case. Further, the inspector testified that
it was not probable that one would fall off the balcony, that he observed
no one there when he cited the violation, that employees are not normally
in the area while production is going on, and he characterized the citation
as a "housekeeping" infraction. Under the circumstances, I cannot conclude
that the conditions ~ited were serious, and I find they were not.
With regard to Citation Nos. 37545.0 and 375451, I find that the testimony and evidence adduced supports a finding that these were serious violations. Respondent '.s own witness (Gaines) conceded that persons could slip
on the inclined tunnel walkways if .they· were not careful and.that one would
have to maneuver his way around some of the spillage which was present. The
fact that he could do it safely .is .beside the point. The presence of accumulations which requires one to .climb over or around them presents additional
hazards which would not be present if the accumulations had been cleaned up.

Although Mr. Gaines indicated that employees are not permitted in the C-1
tunnel while the conveyor is running, certain designated employees are
present while the conveyor is running in the C-2 tunnel, and to this extent,
the presence of employees in a tunnel walkway area which is obstructed
increases the hazards presented. Coupled with the limited clearance in both
tunnels, and the inspector's testimony concerning the overall tunnel conditions he observed on the day in question, I can only conclude that the citations were serious and respondent's testimony and evidence has not convinced
me otherwise.
Fact of Violations
Citation Nos. 375452 and 375453, both issued on June 27, 1978, allege
violations of 30 C.F.R. § 55.17-1, in that the inspector believed that
sufficient illumination was not maintained in the C-2A and C-2B tunnels due
to broken and burned out ligh bulbs. Section 55.17-1 provides as follows:
"Mandatory. Illumination sufficient to provide safe working conditions shall
be provided in and on all surface structures, paths, walkways, stairways,
switch panels, loading and dumping sites, and work areas."
In addition to the arguments advanced at the hearing with respect to
these citations, the parties were afforded an opportunity to submit additional arguments in support of their respective positions, but they declined
to do so. Accordingly, I have considered the arguments made.at the hearing
by the parties.
In.support of its position, respondent argues that the mine in question
also comes under the illumination.standards established by California OSHA
(Exh. R-2). That standard only requires as a minimum a very low level of
illumination, or half-a-foot candle power. Since the cited MSHA standard
only requires that "sufficient illumination shall be provided," respondent
argues that this standard is too vague to provide any meaningful guidelines
for compliance and that the OSHA standard is sufficient for compliance (Tr.
111). Respondent maintains that the intent of the cited standard deals with
the number of light fixtures which are required to maintain sufficient
lighting and not with the question of whether light bulbs are burnt out.
The essence of respondent's defense is that MSHA must.first establish a
standard as to the amount of illumination required, i.e., a fixed number of
light fixtures spaced at appropriate intervals to provide sufficient lighting, and if it can show that the required amount of illumination is not
maintained, then it can support a violation.
Respondent.maintains that the fact that a light bulb may be burned out
is insufficient to establish a violation, unless MSHA can establish that the
illumination which remains from the other f ixtur:es is not sufficient to provide adequate candle power to insure sufficient lighting for the workplace
in question. The question of whether a violation has occurred .is dependent
on the amount of lighting provided in an area where work is being performed,
taking .into account any hazards presented by the lack of adequate lighting.
Since the inspector failed to establish the.required illumination standard

·in the. first instance, and since .he failed to make any tests with a light
meter or other device to establish his conclusion that the lighting was not
adequate, respondent maintains that MSHA has failed to carry its burden of
proof.
MSHA takes the position that it is incumbent on an operator to establish
his own illumination standards, and that once light fixtures are installed
and maintained through the use of.workable fixtures and bulbs which are
burning, he has. met the requirements of ·section 55.17-:1.- However, if a
fixture is inoperative or a· bulb is. burned out, MSHA seemingly maintains that
the standard is violated ~ se because sufficient illumination has not been
. maintained.
The inspector testified that he had difficulty in seeing where he was
going in the tunnel because his vision was impaired by the burned out light
bulbs and he did not have clear vision. Although some of the bulbs were
burning, the inspector.made no.effort to ascertain the remaining wattage,
nor did he utilize a light meter to determine the actual lighting and he made
no estimate of the existing candle power of illumination in the tunnels in
question. He simply_concluded that the lighting was insufficient and the
sole basis for this conclusion was the fact that bulbs were burned out at
several locations and he had some difficulty seeing. Although he guessed
that three bulbs were. burned out, he did not count the number of bulbs which
were in fact burned out and had no idea as to the total illumination which
was in fact present in the tunnels :.on the day the citations issued. When
asked whether he believed there .was .sufficient lighting for one to detect
.any obstructions .along the walkway, the inspector replied "Once an individual
will allow their eyes to adjust .from the ·bright light ·outside ·to the arti~
ficial light inside. the tunnel, I wo.uld say yes. Now, .there is a transition
period there" (Tr. 109-110). He· also indicated that employees do carry
flashlights with them while in the .tunnels (Tr. 110).
Res.pondent 's witness Gaines testified that while some bulbs were burned
out 11 he could not .recall any two in a row being burned out. Allowing for
a period of time for the eyes to adjust from the outside natural light, he
believed there was sufficient lighting to alert anyone as to any stumbling
hazards or obstructions along the tunnel walkways. He conceded the fact that
the light fixture at the tail section of the C-2B tunnel was broken and
inoperative, but indicated that the walkway.ended at that location. Further,
he. indicated that the fixture was located in a room which encloses the conveyo.r tail pulley and .that the only person who had any need to be there would
be a lubrication man.
After careful. l'.eview of the evidence adduced and .the arguments advanced
by the parties with respect t.o· their respectiv.e po.sitions, I conclude that
respondent's. arguments. are well·. taken. I ·.agree with respondent.' s assertion
that ·section 55 .. 17-1' is very broad.cand somewhat: vague in· that the question
of .sufficient· illumination leav.es much to the: .imagination. I fail to understan4 how an inspector. can. determine that. the existing lighting· is insufficient. when he riot ·only fails· to take-a light. meter test, but also has not
determined the amount of existing lighting. ·.On ·.the facts. her.e presented~ it

would appear that the lighting was sufficient enough to permit the inspector
to walk through the tunnels to make his inspection. The inspector conceded
that he had no problem with the visibility once his eyes adjusted to the
tunnel conditions and that bulbs were in fact burning at least in every other
light fixture which he observed, and respondent's evidence indicates that the
existing light was sufficient enough to permit detection of any obstacles
which may have been on the walkways. Under the circumstances, with respect
to Citation No. 375452, I find that MSHA has failed to establish a violation
by any credible evidence which establishes the inspector's assertion that the
lighting along the C-2A tunnel walkway was insufficient,' and that citation
is VACATED.
With respect to Citation No. 375453, although I cannot conclude that
MSHA has established that there was insufficient lighting along the walkway
of the C-2B tunnel, it has established that there was no lighting at all in
the room which housed the conveyor tail section due to ·.the fact that the
light fixture itself was completely broken. Although the walkway may have
ended at that location, the broken light fixture provided n.o light at all and
respondent has conceded this fact, as well as the fact that a lubrication
man would be exposed to a hazard at that location due to the absence of any
light. In these circumstances, I find that the failure to provide any
lighting at all in the room in question constituted a violation of section
55.17-1, and to this extent the citation is AFFIRMED.
Negligence
With regard to .Citation N,o.- 375453~. I..find -.that the respondent should
have been aware. of· the ·fact that :the- light 'fixture i.n the C-2·B· tunnel con- .
veyor tail pulley room area was inoperat.ive and provided no lighting at all.
I find that the condition cited· resulted from respondent's failure to exercise reasonable care to correct. a·coridition which it knew or should have
known existed and· that this failure on its part constitutes ordinary
negligence.
Gravity
. I find that Citation No. 3754.53 is a ·serious violation. Respondent's
witness Gaines conceded that the failure to provide any lighting in the conveyor tail room area presented a visibility hazard, and while it was true
that no one was in the area on the day the citation issued, the fact is that
a lubrication man is ·normally in the room performing work and the absence
of any lighting increased the hazard presented and exposed h.im: ·to potential
injuries.
· Hist·ory of Prior Violations
The' parties stipulated that the mi·ne in question has 1to ?.rior history
of violations and I conclude that on the basis :of the record in this proceeding any incr.eased assessments on the.basis nf any .asserted prior history
is not warranted.

122·

Size of Business.and Effect of Civil Penalties on Respondent's Ability to
Remain in Business
On the basis of the stipulated annual mine production of four million
tons of iron ore, I conclude that respondent's mining operation at its
Eagle Mountain Mine and Mill was a large mining operation, and the parties
have stipulated that any civil penalty assessments. levied in this matter will
not adversely affect respondent's ability to continue in business.
Good Faith Compliance
The evidence and testimony adduced in these proceedings support a finding that as to all proven violations, the respondent timely abated the
conditions, and I conclude that they were timely abated in good faith.
Penalty Assessments
On the basis of the foregoing findings and conclusions made in these
proceedings, civil penalties are assessed for each citation.which has been
affirmed as follows:
Citation No.

Date

30 C.F.R. Section

Assessment

375204
375450
375451
375453

06/28/78
06/27/78
06/27 /78
06/27 /78

55.20-3
55.20-3(a)
55.20-3
55.17-1

$ 35
$125
$200
$ 90

On the basis of the foregoing findings and conclusions made in these
proceedings, Citation No. 375452, June 27, 1978, alleging a violation of
30 c.F.R. § 55.17-1, is VACATED.
On motion by the petitioner during the hearing, Citation No. 375455,
June 27, 1979, alleging a violation of 30 C.F.R. § 55.14-6, is VACATED.
ORDER
The respondent IS ORDERED to ·pay the civil penalties assessed by me
in these proceedings·in the amounts shown above, totaling $450 within
thirty (30) days of the date of this decision.

dp·~

Koutras
Administrative Law Judge

Distribution:
Judith G. Vogel, Esq., u.s. Department of Labor, Office of the
Solicitor, Room 10404 Federal Building, 450 Golden Gate Avenue,
Box 36017, San Francisco, CA 94102 (Certified Mail)
Daniel B. Reeves, Counsel, Industrial Relations, Kaiser Steel
Corporation, P.O. Box 58, Oakland, CA 94604 (Certified Mail)
Standard Distribution

72J:

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

22041

(703) 756-6210/11/12

MAR 1 9 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v•
.CONSOLIDATION COAL COMPANY,
Respondent

Civil Penalty Proceedings
Docket No. WEVA 79-35!1
A.O. No. 46-01431-03026V
Four States No. 20 Mine
Docket No. WEVA 79-355
A.O. No. 46-01433-03044V
Loveridge No. 22 Mine
DECISION AND ORDER

Based on an independent evaluation and de novo review of the
information furnished at the settlement conference of February 12, 1980
and in the conference call of March 13, 1980, I conclude the proposal
to settle these two unwarrantable failure 75.400 violations should be
approved even though MSHA's policy of charging multiple violations as a
single violation is clearly contrary to section llO(a) of the Act.
The record shows that in Order 814147 the inspector charged the
operator with failing to clean up combustibles in four separate and
distinct areas on the numbers 1 and 2 conveyor belts and its contiguous
crosscuts for a distance of 2,500 feet or approximately one-half mile.
The inspector also charged the operator with failing to report the
hazardous conditions in its preshift reports.
Despite this, it is the position of the Solicitor and MSHA that
only one violation occurred because the inspector apparently has absolute
and uncontrolled discretion to treat multiple violations relating to
the "same area of the mine" as a single violation. See Memoranda
to District Managers from Cook and Shepich dated October 29, 1976
and October 3, 1979, copies attached.
This policy of soft enforcement is, I submit, contrary to the best
interests of the miners as well as the declared purposes and policy
of the Act. Section llO(a) and its predecessor section 109(a) have
always provided that "each occurrence of a violation" is to be treated
as a separate offense, regardless of the area, and certainly violations
of separate standards wherever found should be treated as separate offenses.

725

Here four separate and distinct violations of 75.400 have been joined
with a violation of 75.1802 in one order. And while I have no difficulty
in reading the order as charg~ng five separate and distinct violations,
MSHA and the Solicitor claim that because the five occurrences are recorded
on one piece of paper and on one order they must, regardless of the law
and logic, be treated as one violation for the purpose of (1) assessing
a penalty and (2) for recording the violations on the operator's history.
This may be good "policy" and even better "special interest"
politics but I firmly believe it is weak enforcement. Small wonder
that the operators consider the penalty assessment program little more
than a "cheap nuisance".
The situation is even more aggravated with respect to Order 813910.
There the inspector wrote one unwarrantable failure order to cover eight
separate and distinct violations of 75.400 on a longwall conveyor belt,
its auxiliary transport belt, and in adjacent return airways. As the
mine maps submitted for both these orders show, it strains credulity
to accept the view that "the same area of the mine" was involved in
these thirteen violations. The flaw in this argument, however, is that
this is not the relevant criterion. How Messrs. Cook and Shepich
were ever advised that the law condones "multiple violations" of the
same or different standards if they occur in "th~ same area of the mine"
is difficult to understand. I can find nothing in the Act or its
legislative history which indicates Congress intended violations to be
cheaper by the dozen. I think the Labor Department's position is bad
law and worse policy.
For these reasons, I refused to accept the parties original
settlement proposal which was to reduce the total penalty as assessed
from $4,000 to $1,750.
The final agreement is to pay $4,500.
Accordingly, it is ORDERED that the motion to approve settlement,
as amended, be, and hereby is GRANTED. It is FURTHER ORDERED that the
operator pay the settlement agreed upon, $4,500, on or before Friday,
April 4, 1980 and that subject to payment the aptioned petitions be
DISMISSED.

Attachments (2)
_Distribution:
Barbara Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Samuel P. Skeen, Esq., Consolidation Coal Company, Consol ?laza, Pittsburgh,
PA 15241 (Certified Mail)

726

10:

D1str1ct Mmqers. Coal MlDe Haalth Di Safety

Pna:

kt:bg Assistant AdmiDistrator--r.oal. Nine Health
end Safetr

M>ject:

Wot1ces mtl/or Orders Cl.ting Jldtiple Violatiam

~the past several smths attorneys in the Assod.ate Solicitor's
Office, Mine HNlth and Safety, and OU.ef, Office of Assessaents
kn npressed cancem respecting the practice of citing mltiple
riolatims of wndatory health. or safety standards ln a single
80tice of riolatian (or a Sec:ticn 164(e) Order) issued pursuant
to Secticm 104 of the Act. Appanmtly such practices cause same
problmzs 1n effectively bplmenthg the Act. It mkes it difficult for the Assess.mts Office, Gd In tum, the trial attorneys
Sn the Associate Solldtor's Office, to Identify md charge the
~ with ead1. riolatim obserwd md listed in the notice
(or (c/ order). .1:a may 1nstmces 1lhere a single notice described
or listed several riolatians there as mly me lnspectar'• state9'Dt md cmly ane "zwscmble time" for atsl!Dt. "l'b1s practice
lms nsulted 1a sme riolatians mt hein& recognized, assessed, ar
coated 1n the ~tor'• Jd.stary of Tiolatims.

ltffectin apan receipt of this 1 n••lt•, la order to mre effecUftly .a.tnister the Jct wt its puposes, eech riolatim observed
"1' a Smpectm- md d ted pursuant to Sect1GDS 104 (b), 104 (c) or
lN(i) shall N c:li.d in a Mpente JiDtlce of Violatim or Order f4
lfithd!wal.
'!be ksic n1e to 1'e followed b that Yiolatims of aeparate stand81'ds • ane piece of equlpmat or ldmtic:al riolatims m 9ipCil&te
, i - - of equipnent or i&mtical Yiolatiaas la· d1stiact areas of
tile Jdne be cited cm separate notices. For ~le, if tw lhrttle
cars each bad the ame Yiolatim it would be m> separate riolatims
dampd. If m> diltim:t areas of the .s.ne wre tnMequatel.y l'OCk
6lsted then 1lbldse muld M tm riolatims.

727

2
liMwr', this b l not change our policy ccneem1na sltuaticm
where then are 1111~1• violat.1C11S of the same atancls:rd all of
which are observed tn: the course of an lnlpec:ticn md all nlated
to tbs hm9 piece of equipaent or to the ame a'e& of the ldD8.
Por ~le, '"AMJ.ve nil joints of the Min line track along
Mo. 4 north 1ldJl tntry were not welded or handed be~ inby
Mo. Z 90Uthwest track switch md extending inby for llPPt'OXima.tely
IOO feet (Sec:. 75.514)", or, "Pour pemis1ibllity deleets, whic:h
lncluded two openin&s In GCeSI of 0. 005 inch 1n the
f'lmge
Joint of the min c:mtractor caapartment, a 1aose bm 11,irt l9ns
t11 the right (open.tor's) •im h1t"'tght, rim msecured Snlpectf.an (handhold) CDftr b- tha caanyor a>tor, were detected in the
U JJ(. cmt1mmus 8iJ11n& mch1ne In operatlan in No. Jentry 8CIUth
ams HCtiCll (Sec. 75.503) ... In --=11 of the ebove inatm=es,
where the OCCU1"l"llnCe an mlt1p1e Ylolatiam of the sam 1tandard
tdi1.c:h an cmtil\DD or nlated tbly _, be treated u me Yiolaticm.

!lane

Joseph O. ~

728

U.S. DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION
4015 Wilson Boulevard
Arlington, Virginia 22203

OCT

3 1979

MEMORANDUM FOR:

DISTRICT MANAGERS

FROM:

THOMAS J. SHEPICH
Administrator for e
Nonmetal Mine Safety

SUBJECT:

Citations and Orders
Multiple Violations

Effective upon receipt of this memorandum, in order
more effectively to administer the Act and carry out
its purposes, each separate violation observed by an
inspector and cited pursuant to section 104 of the
Act shall, except as noted below, be cited in a
separate citation or order of withdrawal.
The basic rule to be followed is that violations of
separate standards on one piece of equipment, or
violations of separate standards in a distinct area of
a mine, or identical violations on separate pieces of
equipment, or identical violations in distinct areas
of a mine, shall be cited on separate citations. For
example, if two haul trucks each had the same violation,
there would be two separate violations charged. Likewise,
if two distinct areas of a mine had loose rock in the back,
there would be two separate violations charged.
However, where there are multiple violations of the same
standard which are observed in the course of an inspection
and which are all related to the same piece of equipment
or to the same area of the mine, such multiple violations
should be treated as one violation and one citation should
be issued. For example, "Loose ground was observed in
four P.laces of the haulageway between 3 switch and No. 4
x-cut' (57 .3-22); or, "At the crusher power control panel
insulated bushings were not provided where insulated wires
entered five of the metal switch boxes" (55,56, 57.12-8).

729

FEDERAi. MINE SAFETY AND HEALTH 11u:v1EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Phone: (703) 756-6225
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

MAR 1 9 1980
:

Civil Penalty Proceeding

Doclet No. WEVA 79-338
A.O. No. 46-01382-03013V

v.

Guyan No. 4 Mine

ISLAND CREEK COAL COMPANY,
Respondent
DECISION AND ORDER APPROVING SETTLEI1ENT
The Solicitor filed a motion to approve a settlement in this matter
for $375. The amount originally proposed was $750.
The violation was due to Respondent's failure to comply with its roof
control plan. Specifically, the motion stated that "wide places had been
driven in five entries at the inspected mine in violation of the roof control
plan." The motion continued that there is a serious dispute as to what the
roof control plan required.
The motion stated that a West Virginia state inspector accompanied the
MSHA inspector on the day in question, and issued a citation for the same
condition.
The state inspector re-inspected on the next day and terminated his
citation. When the MSHA inspector re-inspected a day later, he determined
that the violation was not sufficiently abated and issued a withdrawal order.
The motion stated that since the state inspector agreed with the operator
that the condition was promptly abated, there is a dispute as to the operator's
negligence which justifies a reduction in the proposed penalty. Additionally,
the motion indicated that the mine had been closed since September 1979.
Upon consideration of the motion and the six criteria set forth in
Section llO(i) of the Federal Mine Safety and Health Act of 1977, I find that
the proposed settlement is sufficiently substantial to effectuate the purposes
and policies of the Act and I approve the settlement.
ORDER
Respondent is ORDERED to pay $375 in penalties within 30 days of the
date of this Order.

~ 4-4--~
Edwin S. Bernstein
Administrative Law Judge

730

t-

Distribution:
David E. Street, Attorney, Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Marshall S. Peace, Attorney for Island Creek Coal Company,
P.O. Box 11430, Lexington, KY 40575 (Certified Mail)

731

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

Phone: (703) 756-6225

MAR \ 9 \980.
Civil Penalty Proceeding

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

Docket No. PENN 79-160
A.O. No. 36-05123-03010
Solar No. 7 Mine

v.
LUNAR MINING COMPANY,
Respondent

DECISION AND ORDER APPROVING SETTLEMENT
The Solicitor filed a motion to approve a settlement in this matter
for $478. The amount proposed by the MSHA Assessment Office for these
eight citations was $736. The motion indicated that the six criteria
set forth in Section llO(i) of the Federal Mine Safety and Health Act of
1977 were considered during settlement negotiations.
Citations 09903940 and 09904033 were issued because Respondent failed
to submit timely respirable dust samples as required by 30 C.F.R. § 70.250.
The Assessment Off ice recommended that penalties of $84 be assessed for
each of these citations. The motion stated that penalties of $38 for each
citation would be more appropriate. According to the motion, Respondent
is experiencing financial difficulty, and to save money has asked an affiliated mine to take dust samples for Respondent's miners. It is thus asserted
that Respondent was not negligent in failing to submit timely samples. I
have serious reservations about this explanation. I do not believe that
Respondent can avoid having the negligence of the "affiliated mine" imputed
to it, especially when the affiliated mine was apparently retained specifically for this purpose. However, in view of recent challenges to the respirable dust program which make the outcome of this case far from certain,
I believe the recommended settlement is appropriate and I approve it.
Citation 0617653 was issued because a line brattice used to provide
ventilation to the working face was installed more than 10 feet from "the
area of deepest penetration to which any portion of the face has been
advanced," in violation of 30 C.F.R. § 75.302-l(a) and the mine's ventilation plan. The motion stated that while Respondent's negligence was low,
this was a serious violation because trace amounts of methane had been
detected shortly before this area of the mine was inspected. Accordingly,
the need for adequate ventilation was especially great. I agree with the
Solicitor that the full $72 proposed penalty is an appropriate assessment.
A $122 penalty was proposed for Citation 0617655, involving a violation
of 30 C.F.R. § 75.503. A lock washer was missing from under a bolt in the
bottom of the main contactor compartment of a· shuttle car which rendered

732

the car impermissible. The motion stated that Respondent's degree of
negligence was low hecause it was difficult to detect the defect. The
motion urges that because of the low degree of negligence, a $56 assessment is appropriate. I agree.
Citation 0617657 was issued when it was discovered that inadequate
ventilation was reaching a working face of Respondent's mine because of a
loose line brattice. This constituted a violation of Respondent's ventilation plan. See 30 C.F.R. § 75.316. The motion stated that an assessment of $84 ismore appropriate for this violation than the $160 proposed
by the Assessment Office. This is purportedly because of Respondent's low
degree of negligence since the brattice had been properly installed, and
was secure against the roof during earlier inspections. I approve that
recommended settlement.
For Citations 0617658 and 0617659, the motion stated that the original
proposals of $48 and $44 respectively are appropriate assessments.
Citation 0617658 involved another violation of 30 C.F.R. § 75.316, while
Citation 0617659 involved an ommission on the mine's electrical map. See
30 C.F.R. § 75.508. I agree.
The final violation, Citation 0617660, was issued for not complying
with 30 C.F.R. § 75.313, which requires an operative methane monitor on all
electric face cutting equipment. Respondent was cited for having an inoperative monitor on a continuous mining machine. The Assessment Off ice proposed a $122 penalty.
The motion stated that this should be reduced to
$93 since (a) the miner operator carried a methane testing lamp at all
times, and (b) the Solar No. 7 Mine had never previously liberated methane,
nor has any methane been detected since the issuance of the citation.
However, trace amounts of methane had been detected in the section in
which the violation was cited. I approve the recommended settlement for
this citation.
ORDER
Respondent is ORDERED to pay $478
the date of this Order.

in penalties within 30 days of

Edwin S. Bernstein
Administrative Law Judge
Distribution:
David E. Street, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Ron Corl, Lunar Mining, Incorporated, 900 - Mine 42, Windber, PA
15963 (Certified Mail)

733

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

(703) 756-6225
SECRETARY OF LABOR,
on behalf of William F.
Hamrick & John L. Mead.ows,
Applicants

MAR 1 9 JS "eomplaints
An
.
of Discharge,
Discrimination, or
Interference
Docket No. WEVA 80-48-D

v.
CD 79-183
ISLAND CREEK COAL COMPANY,
Respondent

Birch No. 2-A Mine
ORDER OF DISMISSAL

The Secretary's October 12, 1979 Complaint alleged that in failing to
pay Respondent's employees, William F. Hamrick and John L. Meadows, for
one day that each spent accompanying MSHA inspectors during respirable dust
inspections, Respondent discriminated against these employees in violation
of Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977 (the
Act). Respondent's Answer, filed on December 20, 1979, denied these
allegations.
In my January 15, 1980 Order to Show Cause, I indicated my understanding
that the Commission's decision in Secretary of Labor, Mine SAfety and Health
Admini.stration v. The Helen Mining Company, Docket No. PITT 79-11-P, mandates
dismissal of this case. Accordingly, I directed Applicants to show cause
why this case should not be dismissed.
Applicants' January 21, 1980 Response opposed dismissal. Applicants
argued that the decision in Helen Mining was incorrect, was appealed to the
United States Court of Appeals for the District of Columbia Circuit, and
that "these proceedings should be stayed or held in abeyance because failure
to stay these proceedings will result in (1) irreparable harm to the Applicants, (2) irreparable harm to the public interest, (3) no harm to Respondent
and because there is a strong likelihood of success on the part of the
Secretary of Labor."
Applicants have failed to disuade me of the view that this matter should
be dismissed without prejudice. This matter comes fully within the scope of
the Commission's decision in Helen Mining which, along with all other Commission
decisions, is binding on me. I am not persuaded that a dismissal of this case
will result in irreparable harm either to Applicants or to the "public
interest." ·This case involves a relatively small monetary claim based upon
one day's pay for each of two miners. Irreparable harm presupposes the
absence of an available remedy either administrative or judicial. Sink v.
Morton, 529 F.2d 601, 604 (4th Cir. 1975). The Random House College-Dictionary
(1973 ed.) defines irreparable as "incapable of being rectified, remedied or
made good."

734

In addition, it is not within my province to "handicap" the prospects
of successful appeals of Commission decisions. It is true that two highly
respected Commission members dissented in Helen Mining; however, three
other highly respected Commission members, including the Chairman, formed
a majority.
Finally, even successful appeals are time-consuming. In general, I am
opposed to retaining cases in an inactive status on this office's dockets
while a higher authority decides similar cases. A preferable solution is to
dismiss the case without prejudice to reinstitution at such time as may be
appropriate.
ORDER
This case is DISMISSED WITHOUT PREJUDICE.

#-- /. ~. ;Z:
Edwin S. Bernstein
Administrative Law Judge

-

Distribution:
David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Bldg., 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
William K. Bodell, II, Esq., Island Creek Coal Company, 2355 Harrodsburg Road, P;O. Box 11430, Lexington, KY 40575 (Certified Mail)
Harrison B. Combs, Esq., UM1ivA, 900 - 15th Street, NW, Washington, DC
20005 (Certified Mail)
William F. Hamrick, Box 255, Craigsville, WV 26205
John L. Meadows, Box 64, Cowen, WV 26206

735

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

Phone:

(703) 756-6225

MAR 1 9 1980
Civil Penalty Proceeding

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

Docket No. VA 80-31
A.O. No. 44-00294-03018
Mine: Virginia Ho. 1

v.
EASTOVER MINING COMPANY,
Respondent

ORDER OF DISMISSAL
Petitioner filed the following Motion to Hold in Abeyance:
"The Secretary of Labor, by his attorneys, hereby requests
an Order holding in abeyance Respondent's Motion to Dismiss in
the above matter. As grounds therefor, the Secretary submits:
"1. The Citations alleged violations of § 103 (f) of the
Federal Mine Safety and Health Act of 1977 resulting when three
employees of Respondent suffered a loss of pay when accompanying
an authorized representative of the Secretary on other-thanregular inspection of the mine.

"2. This issue is now pending an appeal from the Review Commission's decisions in Helen Mining Company, 75-2518, 79-2537
(D.C. Cir.), a~d Kentland-Elkhorn 79-2503, 79-2536 (D.C. Cir.).
"vffiEREFORE, the Secretary requests that Respondent's aforesaid
Motion be held in abeyance until a decision is rendered in the
above-mentioned cases."
Respondent did not oppose the motion.
In Secretary of Labor, Mine Safety and Health Administration (MSHA)
v. The Helen Mining Co., Docket No. PITT 79-11-P, 1 .FMSHRC Dees. 1796
(1979), appeal docketed, No. 79-2537 (D.C. Cir. Dec. 21, 1979) and
Kentland-Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety·and
Health Administration (MSHA), Docket No. PIKE 78-399, 1 FMSHRC Dees. 1833
(1979), appeal docketed, No. 79-2536 (D.C. Cir. Dec. 21, 1979), the Commission decided that miners were not entitled to "walkaround compensation"
under Section 103(f) of the Federal Mine Safety and Health Act of 1977
for time spent accompanying MSHA inspectors on spot and special mine
inspections.

736

Those decisions, which are dispositive of the case at hand, have
been appealed to the United ·states Court of Appeals for the District of
Columbia Circuit. Even successful appeals take many months and often
even years to prosecute. Generally, I am opposed to retaining cases in
an inactive status on this office's dockets pending appeals of similar
cases. I feel that a preferable solution is to dismiss the cases pending
before me without prejudice to reinstitution at such time as may be
appropriate.
ORDER
This case is DISMISSED WITHOUT PREJUDICE.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
Catherine M. Oliver, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Karl S. Forester, Attorney, Forester & Forester, P.O. Box 935, Harlan,
KY 40831 (Certified Mail)

737

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

(703) 756-6210/11/12

MAR 1 9 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. PENN 80-19
A.O. No. 36-00807-03030

v.

Renton Mine

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. PENN 80-21
A.O. No. 36-03298-03013V
Docket No. PENN 80-22
A.O. No. 36-03298-03014
Laurel Mine
DECISION AND ORDER

Based on an independent evaluation and de novo review of the
circumstances, I conclude the $95.00 reduction in the penalties initially
assessed for citations 622623 and.622624 is justified and in accord with
the purposes and policy of the Act.
With respect to the unwarrantable failure violation cited in citation
617909, I conclude the reduction proposed, $200, is unjustified in view
of the gravity and negligence involved. The reason advanced, namely
that operation of the jeep in low gear reduced the probability that its
collision with a miner would be fatal or disabling is unpersuasive.
Next to roof falls haulage accidents are the largestcause of fatalities
in the mines. The knowing operation of a jeep for 10 days without a braking
system that could be rapidly activated is inexcusable. I conclude,
therefore, that the initial assessment of $2,000 was fully warranted.
The citation charging a violation of 75.403 is invalid as a matter
of fact and law. The standard requires that the incombustible content
of a working area on an intake split be "maintained" at 65%. Here only
one out of 14 of the band samples showed a deficiency in incombustible content.
This is not probative of the allegation that the 2 West Section was not
being "maintained" in a properly rock dusted condition at the time the
violation was charged.

738

Accordingly, it is ORDERED that the motion as to citations 622623
and 622624 be, and hereby· is, GRANTED. It is FURTHER ORDERED that citation
802789 be, and hereby is, VACATED. Finally, it is ORDERED that the
operator pay a penalty of $2,325.00 in full settlement of these matters
on or before Friday, April 4, 1980 and that sµ\>ject to payment the
captioned petitions be DISMISSED.
J

4WJ~,
Joseph B. Ke nedy
Administrative Law Ju

Distribution:
Barbara K. Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail).
William H. Dickey, Jr •. , Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, DC 20005 (Certified Mail)

739

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

MAR t 9 1980

Civil Penalty Proceeding

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

Docket No. VINC 79-213-PM
A.O. No. 33-00523-05001

Petitioner
Vo

Summitville Pit and Plant
SUMMITVILLE TILES, INC.,
Respondent
DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor, U.S. Department
of Labor, Cleveland, Ohio, for Petitioner;
James D. Primm, Jr., Esq., Lisbon, Ohio, for Respondent.

Before:

Administrative Law Judge Melick

Statement of the Case
This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977
(30 u.s.c. § 801 et~·· hereinafter referred to as the "Act"). Petitioner
filed a proposal for assessment of civil penalty on March 13, 1979, alleging
four violations on June 8, 1978, of mandatory s'afety standards. An evidentiary hearing was held on December 11, 1979, in Wheeling, West Virginia.
Respondent (Summitville) admits the violations but contends that the
citations were vitiated by the MSHA inspector's unlawful entry onto its
premises. Summitville argues that it consented to the inspection only
because the inspector misled it into believing that it would not be subject
to penalties for any violations found on such inspection and claims that it
had a right under the Fourth Amendment to the United States Constitution to
deny entry to the inspector absent a valid search warrant. MSHA concedes
that it had no search warrant but argues that none was required. It contends
that whether or not Summitville knowingly consented to the search is
immaterial.
The issues in this case are (1) whether the inspection herein was lawfully conducted and, if so, (2) what are the appropriate civil penalties for
each of the admitted violations.

740

I.

The Legality.of the Inspection

Summitville. concedes that its clay pit and processing plant is a "mine"
as defined in the Act. Section 103(a) of the Act 1/ mandates "frequent
inspections" of mines by authorized representatives. It also directs that
no advance notice of inspections be provided, and that any authorized representative "shall have a right-of-entry to, upon, or through" any mine. Thus,
section 103(a) requires frequent nonconsensual inspections of all mines by
authorized representatives. See Secretary of Labor, v. Readymix Sand and
Gravel Company, Inc., WEST 79-66-M, December 5, 1979; Secretary of Labor, v.
Waukesha Lime and Stone Company, Inc., VINC 79-66-PM, June 5, 1979.
Summitville nevertheless contends that a search warrant is required to
make a nonconsensual inspection of its mine under the Act. The established
law is to the contrary. In Marshall v. Nolichuckey Sand Company, Inc.,
606 F.2d 693, 696 (6th Cir. 1979), a warrantless inspection of a sand and
gravel "mine" ·under the Act was upheld. The court held that the enforcement
needs of the mining industry made provisions for warrantless searches reasonable. Similarly, in Marshall v. Stoudt's Ferry Preparation Company,
602 F.2d 589, 593 (3rd Cir. 1979), cert. den.,~- U.S.~-' (January 7,
1980), a warrantless inspection of the company's sand and gravel preparation
plant was found to have satisfied the reasonableness standard set forth by
the U.S. Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 321
(1978). Within this framework of law it is clear that not only does the Act
mandate warrantless nonconsensual inspections of "mines" such as the one at
bar but that such inspections do not constitute unreasonable searches prohibited by the Fourth Amendment to the United States Constitution. Respondent thus has no right to refuse entry to an MSHA inspector attempting to
conduct an inspection directed by the 1977 Act. See also Marshall v. Sink,
No. 77-2614, U.S. Circuit Court for the 4th Circuit (January 24, 1980)-;~
Readymix Sand and Gravel Company, supra; and Waukesha Lime and Stone Company,
supra.
Since a warrantless nonconsensual MSHA inspection of Summitville was
legally permissible, it was not necessary to obtain the operator's knowing
consent prior to such inspection. It is therefore immaterial whether or not

°):_/

Section 103(a) of the Act provides in part:
"Authorized representatives of the Secretary * .* * shall make frequent
inspections and investigations in coal or other.mines each year for the purpose of (1) obtaining, utilizing and disseminating information relating to
health and safety conditions, the causes of accidents, and the causes of
diseases and physical impairments originating in such mines, (2) gathering
information with respect to mandatory health or safety standards, (3) determining whether an imminent danger exists, and (4) determining whether there
is compliance with the mandatory health or safety standards or with any citation, order, or decision issued under this title or other requirements of
this Act. In carrying out the requirements of this subsection, no advance
notice of an inspection shall be provided * * *·"

741

such consent was given before the inspection in this case. The inspection
was in any event lawfully conducted. Moreover, I find from the credible
testimony of Inspector Beauchchamp, corroborated by the operator's agent,
plant superintendent Currie, that Beauchamp did not misrepresent the possible
consequences of the inspection, and that the operator in fact gave its
consent to be inspected. I find that at most, the Summitville Board Chairman
Fred Johnson, misunderstood the accurate representations of the inspector.
II.

Appropriate Penalties

Respondent has agreed that the violations occurred as charged. In considering the amount of the penalty, I have determined that the operator is
small in size (having only six employees), that it had no history of violations and that the penalties would have no affect on its ability to remain
in business. Each of the cited violations was promptly abated.
Citation No. 359057 charges one violatio~ of 30 C.F.R § 55.12-34
(relating to the guarding of lights which present a shock or burn hazard by
their location). There were at least two unguarded light bulbs located over
the bin area and presenting a hazard to the one employee who would occassionally work there. There was only about a 4-foot clearance at that location so an employee could easily hit the exposed bulbs with his head or arms.
The resulting shock could have caused serious injury. I find some negligence
as the condition should have been observed. A penalty of $32 is appropriate.
Citation Nos. 359058 and 359059 each charge one violation of 30 C.F.R.
§ 55.9-7 (requiring that unguarded conveyors with walkways be equipped with
emergency stop devices along their full length). I find that the likelihood
of injury here was probable in that an employee could easily slip or fall
against the conveyor and be caught in the rollers. Resulting injuries could
be serious, involving potential disability. Negligence existed in that the
operator should readily have seen the unguarded conveyor. A penalty of $36
for each violation is appropriate.
Citation No. 359131 charges one violation of 30 C.F.R. § 55.11-1
(relating to safe access to working places). Access to the adjustment plow
above the extrusion bin was gained by an 18-inch wide platform with no guardrail. The walkway was used only occasionally to readjust the plow. Injury
or fatality from falling into the bin would also have been unlikely since the
material would have to be of a certain height and consistency to cause the
anticipated hazard of suffocation. I find the operator to have been only
slightly negligent with regard to this violation because of the improbability
and unforeseeability of an accident. A penalty of $20 is appropriate.

742

ORDER
WHEREFORE, it is ORDERED that Respondent
30 days of the date of this decision.

$124 within

Distribution:
Linda Leasure, Esq., Office of the Solici o , U.S. Department of Labor,
881 Federal Office Bldg., 1240 East Nin 'J St., Cleveland, OH 44199
(Certified Mail)
James D. Primm, Esq., Moore, Primm and Conn, 118 West Lincoln Way,
Lisbon, OH 44432 (Certified Mail)

743

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

MAR 2 6 1980
Civil Penalty Proceedings

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

Docket No. DENV 79-452-PM
A/O No. 02-00842-05004
Docket No. DENV 79-453-PM
A/O No. 02-00842-05006
San Manuel Mine

MAGMA COPPER CO.,
Respondent
DECISION
ORDER TO PAY
Appearances:

Marshall Salzman, :::sq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner, MSHA;
N. Douglas Grimwood, Esq., Twitty, Siegwright and
Mills, Phoenix, Arizona, for Respondent, Magma Copper
Company.

Before:

Judge Merlin

The above-captioned proceedings are two petitions for the assessment of civil penalties for 19 alleged violations of the Act.
At the hearing on February 20, 1980, the docket numbers were
consolidated for hearing and decision pursuant to agreement of counsel.
Citations 376617, 376618, 376620 and 376702
These citations deal with inadequate guarding for rod mills.
30 CFR 57 .14-1. At the hearing, the Solicitor moved to modify Citation
No. 376617 to include the conditions set forth in the other citations
and to vacate the other citations. The Solicitor further moved to
impose a penalty of $178 for Citation No. 376617, the amount originally
assessed for the citations. This was the first inspection of this mine.
From the bench, I granted the Solicitor's motions, assessed a penalty of
$178 for Citation No. 376617, and vacated the remaining citations.
Citations 376713, 376714, 376715, 376716, 376717,
376718, 376719, 377140, 376711, 377141, and 377142
These citations deal with inadequate guarding for ball mills.
30 CFR 57.14-1. At the hearing, the Solicitor moved to modify Citation

744

No. 376713 to include the conditions set forth in the other citations
and to vacate these other citations. The Solicitor further moved to
impose a penalty of $508 for Citation No. 376713, the amount originally
assessed for these citations. This was the first inspection of this
mine. From the bench, I granted the Solicitor's motions, assessed a
penalty of $508 for Citation No. 376713, and vacated the remaining
citations.
Citations 377137, 377138 and 377139
These citations deal with inadequate guarding for regrind mills.
30 CFR 57.14-1. At the hearing, the Solicitor moved to modify Citation
No. 377137 to include the conditions set forth in the other citations
and to vacate the other citations. The Solicitor further moved to
impose a penalty of $152 for Citation No. 377137, the amount originally
assessed for these citations. This was the first inspection of this
mine. From the bench, I granted the Solicitor's motions, assessed a
penalty of $152 for Citation No. 377137, and vacated the remaining
citations.
Citation 376850
The Solicitor moved to assess a civil penalty of $98 (the originally
assessed amount) for Citation No. 376850, which was issued for a violation
of 30 CFR 57.17-1. From the bench, I granted the Solicitor's motion and
assessed a penalty of $98 for this citation, since I concluded it was
consistent with the statutory criteria.
ORDER
The rulings and decisions issued from the bench are hereby AFFIRMED.
The operator is ORDERED to pay $936 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq., U.S. Department of Labor, Office of the
Solicitor, 11071 Federal Building, 450 Golden Gate Avenue,
San Francisco, CA 94102 (Certified Mail)
N. Douglas Grimwood, Esq., 1700 Townehouse Tower, 100 West Clarendon,
Phoenix, Arizona 85013 (Certified Mail)

745

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

(703) 756-6210/11 /12

MAR 2 7 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 80-106
A.O. No. 46-04628-03009V

v.

Coal Fork No. 1 Mine

CEDAR COAL COMPANY,
R~spondent

DECISION AND ORDER
The parties move for approval of a settlement of a charge that the
operator knowingly premitted an excessive accumulation of loose coal,
coal dust and float coal dust to exist for an extended period of time
(almost a month) along the numbers 2, 3 and 4 belt conveyors of the
3 Left Section of the Coal Fork No. 1 Mine. The accumulation was very
dry and extended for a distance of 1,700 feet at depths of 1 to 5 inches.
The inspector's gravity sheet showed the potential for a fatal ignition
was high due to the presence of 20 stuck idler rollers and two idler
rollers with bad bearings on the number 2 belt. After a conference, the
assessment office adhered to its original assessment of $2,000.00 based
on a finding that the violation created a serious hazard of a fire or
explosion and resulted from the operator's negligence.
Based on an independent evaluation and de novo review of the
circumstances, I find the amount of the settlement proposed, $2,000.00,
is not in accord with the purposes and policy of the Act. MSHA's
conclusion that only one violation occurred is erroneous as a matter
of fact and law. See, Consolidation Coal Company, Docket Nd. WEVA 79-354,
(March 3, 1980). The record shows that at least three separate and
distinct safety hazards occurred as a result of the operator's unwarrantable
failure to institute or adhere to a reasonable cleanup program. It also
shows that the violation on the number 2 belt was extremely serious
due to the existence of the stuck idler rollers. In addition, the fact
that these conditions were reported as hazards in the preshift reports
for a period of almost 30 days demonstrates a reckless disregard for
safety by top mine management that requires a finding of gross negligence.

746

For these reasons, I find the amount of the penalty warranted and
that best calculated to deter future violations and ensure voluntary
compliance is $3,000.00.
Accordingly, it is ORDERED that the motion to approve settlement
be, and hereby is, DENIED. It is FURTHER ORDERED the operator pay a
penalty of $3,000.00 in full settlement of the violations charged on
or before Friday, April 18, 1980, and that subject to payment the captioned
petition be DISMISSED.

Distribution:
Catherine M. Oliver, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market Street, Philadelphia, PA 19104 {Certified Mail)
David M. Cohen, ·Esq., Fuel Supply Department, American Electric Power
Service Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail)

747

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

(703) 756-6205

2 8 MAR 1980
Civil Penalty Proceeding

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

Docket No. VINC 78-395-P
A/O No. 11-00599-02026 V

Petitioner

v.
Orient No. 6 Mine
FREEMAN UNITED COAL MINING COMPANY,
Respondent
DECISION ON REMAND
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 August 30, 1979, a decision was issued in the above-captioned case
which, among other things, dismissed the petition as relates to an alleged
violation of 30 C.F.R. § 75.400. This decision was based upon a rule of
law established by the predecessor of the Federal Mine Safety and Health
Review Commission, the Board of Mine Operations Appeals (Board), of the
Department of Interior. In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459,
1977-1978, OSHD par. 22,088 (1977), motion for reconsideration denied,
8 IBMA 196, 1977-1978 OSHD par. 22,328 (1977), the 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 of that regulation. The Board held that other facts had to be
proved to establish a violation.

In the Commission's decision in Old Ben Coal Company, 1 FMSHRC 1954,
1979 OSHD par. 24,084 (1979), it held that a violation of 30 C.F.R. § 75.400
occurs when an accumulation of combustible materials exists without the
additional requirements set forth by the Board.
On the same date of its decision in Old Ben Coal Company, the Commission
also issued a decision in the instant case reversing the decision herein insofar as it dismissed the Secretary of Labor's petition for assessment of a
penalty for an alleged violation of 30 C.F.R. § 75.400 and remanded the case
for further proceedings consistent with the Commission's opinion in Old Ben
Coal Company.

748

Subsequent·to the remand, the parties were accorded the opportunity to
submit additional briefs in light of the change in the law occasioned by the
Commission's decision in Old Ben Coal Company. 'Th.e Mine Safety and Health
Administration (MSHA) filed a brief on January 30, 1980. Freeman United Coal
Mining Company (Freeman) did not file a brief subsequent to the remand. J:./
The two basic issues presented are set forth in Part IV of the August 30,
1979, decision.
II.

III.

Violation Charged
Order No.

Date

30 C.F.R. Standard

1 LDC

January 12, 1977

75.400

Opinion and Findin~s of Fact
A.

Occurrence of Violation

MSHA inspector Lonnie Conner conducted a regular health and safety
inspection at Freeman'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 Freeman for violating mandatory safety
standard 30 C.F.R. § 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
five or six crosscuts from the point where the subject belt dumped onto the
Main North belt (Tr. 8). 'Th.e 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. 8). The coal dust was 5 to 6 inches in depth where the air going
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 entry 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 tailpiece, a distance of approximately 2,300 feet (Exh. M-1, Tr. 10). 'Th.e 2,300 feet was determined by taking a measurement off the mine map (Tr. 11}.

l:./

Freeman filed a posthearing brief on March 21, 1979.

749

Float co.al 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. *"l).
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 accumulations. The inspector described them as deep and continuous (Tr. 250), 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, 1977-1978 OSHD par.
22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 1977-1978
OSHD par. 22,328 (1977), the 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 of 30 C.F.R. § 75.400.
The Board held that MSHA must prove:
( 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 existenc'e 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, or, within a reasonable
time after discovery should have been made.
8 IBMA at 114-115.
A petition for review of the Board's decision was subsequently filed
with the United States Court of Appeals for the District of Columbia Circuit.

750

On January 16, 1979, the Court, without deciding the merits, remanded the
case to the Commission for further proceedings.
In its December 12, 1979, decision, cited supra, the Commission disagreed with the Board's interpretation of the standard and held that a violation of 30 C.F.R. § 75.400 occurs when an accumulation of combustible
materials exists in active workings.:!:_/
Freeman, in its March 21, 1979, posthearing 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 order of withdrawal (Exh.
M-1) (Respondent's Posthearing Brief, p. 52). In support of its position,
Freeman 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 Freeman's theory for two reasons: First, visual observations
are sufficient to prove a violation of 30 C.F.R. § 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 Freeman is insufficient
to establish that rock was present in sufficient quantities to render the
accumulations inert. 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). A violation of 30 C.F.R. § 75.400
has been established by a preponderance of the evidence.
B.

'Negligence of the Operator

The inspector testified that he checked the preshift books, and that the
belt had been recorded "dirty" for two shifts prior to his inspection (Tr.
13). Acceptance of the inspector's opinion would establish gross negligence
on Freeman's part.
The only notations that the inspector 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
2/ When the decision was written in the instant case, the undersigned Administrative Law Judge was required to follow the Board's decision in Old Ben
Coal Company in accordance with section 30l(c)(2) of the Federal Mine Safety
and Health Amendments Act of 1977, 30 U.S.C. § 96l(c)(2) (1978).

751

interpreted this as meaning in excess of 16 hours (Tr. 14).
examination, the inspector testified as follows:

On redirect

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?

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. 249-250).
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 two 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) recorded 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. 260-261). Thus, a key factor in the inspector's equation
has been proven in error, and no credible basis exists in the record to support a finding of gross negligence.
Three workmen and a foreman were assigned to clean the area at the
beginning of the shift and were performing their assigned task when the
inspector walked the belt (Tr. 37, 266).
In accordance with the ruling of the Commission in the Old Ben Coal
Company case, action to eliminate the conditions should have taken place
before the 8 a.m. shift began.
In view of the entries contained in Exhibit 0-6, the knowledge of the
preshift examiner, and the presence of the foreman in the area, it is found
that Freeman knew or should have known of the condition. Ordinary negligence
has been established by a preponderance of the evidence,

752

C.

Gravity of the Violation

The extensive amount of accumulation is set forth earlier in the
decision. The accumulations provided a potential fuel source for a fire.
Friction from belt rollers and electricity from a belt drive were identified
as possible ignition sources (Tr. 16).
The belt was composed of fire-resistant material (Tr. 274). The belt
line was equipped with fire suppression devices and fire sensors (Tr. 273274).
An explosion could have suspended the float coal dust in the air and
thus could have intensified the explosion (Tr. 18, 24). An explosion would
most likely occur in the face areas (Tr. 22), and the nearest face areas
ranged from approximately 1,000 to 1,500 feet from the v2rious accumulations
(Tr. 284-286).

Any person working in the belt entry would have been exposed to
physical danger if an ignition had occurred in the entry (Tr. 17-18).
In view of the foregoing, it is found that the violation was very
serious.
D.

Good Faith in Attempting Rapid Abatement

Additional men were immediately assigned to clean the cited area (Tr.
279). The order was terminated 24 hours after issuance (Exbs. M-1, M-2).
Accordingly, it is found that Freeman demonstrated good faith in attempting
rapid abatement.
E.

History of Previous Violations

The history of previous violations at the Orient No. 6 Mine for which
Freeman had paid assessments between January 13, 1975, and October 28, 1976,
is set forth as follows: 3/
30 C.F.R.
Standard
All Sections
75.400
(Note:

2/

Year 1
(12 months)
1/13/75 - 1/12/76

(9.5 months)
1/13/76 - 10/28/76

182
26

138
26

Tu~2

All figures are approximations.)

See Exhibit 3 filed in Docket No. VINC 78-49-P.

753

Totals

320
52

F.

Appropriateness of Penalty to Operator's Size

The parties stipulated that Freeman United Coal Mining Company produces
approximately 6,221,752 tons of coal per year and that the Orient No. 6 Mine
produces approximately 1,159,797 tons of coal per year.
G.

Effect on Operator's Ability t.o Continue in Business

Counsel for Freeman conceded in his March 21, 1979, posthearing brief
that assessment of the maximum penalty will have no effect on the operator's
ability to continue in business (Respondent's Posthearing Brief, p. 56).
IV.

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 at all times relevant to this proceeding.

2. Under the Acts, the Administrative Law Judge has jurisdiction
over the subject matter of and the parties to this proceeding.
3. MSHA inspector Lonnie D. Conner was a duly authorized· representative of the Secretary of Labor at all times relevant to the issuance of
the order of withdrawal which is the subject matter of this proceeding.
4. The violation charged in Order No. 1 LDC, January 12, 1977,
30 C.F.R. § 75.400, is found to have occurred as alleged.
5. All of the conclusions of law set forth in Part III, supra, are
reaffirmed and incorporated herein.
V.

Proposed Findings of Fact and Conclusions of Law

Freeman submitted a posthearing brief prior to the issuance of the
August 30, 1979, decision. MSHA submitted a brief following the remand.
Such briefs, insofar as they can be considered to have contained proposed
findings and conclusions, have been considered fully, and except to the
extent that such findings and conclusions have been expressly or impliedly
affirmed in this decision, they are rejected on the ground that they are,
in whole or in part, contrary to the facts and law or because they are
immaterial to the decision in this case.
VI.

Penalty Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of a
penalty is warranted as follows:

754

Order No.

Date

30 C.F.R. Standard

Penalty

l LDC

1/12/77

75.400

$2,750

ORDER
Respondent is ORDERED to pay the civil penalty in the amount of $2,750
assessed in this proceeding within 30 days of the date of this decision.

.

~.fii?L

:>

~~trative Law Judge
Distribution:
Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 2~203
Sidney Salkin, Esq., Office of the Solicitor, Room 14480, Gateway
Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street,
Chicago, IL 60606 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of
Labor
Standard Distribution

755

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

8 8 MAR 1980

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

Civil Penalty Proceedings
Docket No. WEVA 79-111
A/O No. 46-01483-03021

Petitioner

v.
Docket No. HOPE 79-318-P
A/O No. 46-01483-03017

THE VALLEY CAMP COAL COMPANY,
Respondent

Valley Camp No. 1 Underground
DECISION
ORDER TO PAY
Appearances:

Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for Petitioner, MSHA;
Ronald Johnson, Esq., Schrader, Stamp and Recht, Wheeling,
West Virginia, for Respondent, The Valley Camp Coal Company.

Before:

Judge Merlin

These cases are two petitions for the assessment of civil penalties
filed under sec.tion l,.10 of the Act by the Secretary of Labor, peti~_ioner,
against The Valley Camp Coal Company, respondent. They were duly noticed
for hearing and were heard as scheduled on March 11, 1980. 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 (Tr. 3).
At the hearing, the parties agreed to the following stipulations (Tr.
6-7):

(1)

The operator is the owner and operator of the mine.

(2) The operator and the mine are subject to the ju'risdiction of the 1977 Act.
(3)

I have jurisdiction of these cases.

(4) The inspector who issued the subject citations was
a duly authorized representative of the Secretary.

756

(5) True and correct copies of the subject citations
were properly served on the operator.
(6) Copies of the subject citations attached to the
petition are accurate and may serve in lieu of ordinary
documentary exhibits.
(7) Imposition of any penalties herein will not affect
the operator's ability to continue in business.
(8)
faith.

All of the a~leged violations were abated in good

(9) The operator has a moderate history of prior violations as evidenced by the printout attached to the
stipulations which I received on February 7, 1980.
(10)

The operator is large in size.

(11) Ordinary negligence was present in all the alleged
violations.
(12)
gravity.

All the alleged violations were of ordinary

(13) The witnesses of both parties are accepted as
experts in the field of mine health and safety.
At the hearing, documentary exhibits were received and witnesses testified
on behalf of MSHA and the operator (Tr. 7-187). At the conclusion of the
taking of evidence, the parties waived the filing of written briefs, proposed
findings of fact, and conclusions of law. Instead, they agreed to make oral
argument and have a decision rendered from the bench (Tr. 188). A decision
was rendered from the bench setting forth findings, conclusions, and determinations with respect to the alleged violations (Tr. 193-199).
Bench Decision
The bench decision is as follows:
These cases are two petitions for the assessment of
civil penalties. Docket No. HOPE 79-318-P contains three
violations, and Docket No. WEVA 79-111 contains two
violations.
Both cases and all the violations contained therein
present only one issue in dispute between the parties. This
issue is whether the Souttell Run Tunnel of the Valley Camp
No. 1 mine is covered by Part 75 or by Part 77 of the
mandatory standards.

757

The violations in these cases were issued under Part 75.
Accordingly, if Part 75 applies, the violations were issued
under the proper sections of the regulations; whereas, if
Part 77 applies, they were not. In paragraphs 16 and 17 of
the detailed stipulations submitted by the parties prior to
the hearing, it was agreed that if I should hold that Part 75
applies, the operator does not contest the fact of violation
and agrees to the originally assessed penalties; whereas, if
I should hold that Part 77 applies, the parties agree that
violations do not exist.
The stipulations as well as the testimony which I have
heard today describe the tunnel in very great detail. The
tunnel is 9,200 feet long, five to five and a half feet high,
and 14 feet wide. No coal is exposed in the entire length of
the tunnel. Approximately 4,500 feet of the tunnel is
covered by an overburden averaging 100 feet in height,
another 4,500 feet of the tunnel is covered by an overburden
averaging 120 feet, and approximately 200 feet of the tunnel
is covered by an overburden averaging 290 feet in height.
Twelve inches to 16 inches of the immediate overburden
remaining over the tunnel is coal.
The tunnel contains a conveyor belt 42 ~nches wide which
moves beside a track composed of 40 pound steel rails. A
barrier coal pillar of at least 250 feet separates the tunnel
from all other areas of the Valley Camp mine. The coal that
moves along the belt conveyor in the tunnel has been
extracted from the mine and processed through a cleaning
plant which admittedly is a surface installation. The coal
is then brought by conveyor belt to the tunnel and conveyed
through the tunnel to a loading dock along the Ohio River.
The testimony this morning with respect to the structure
and functions of the tunnel as compared with the operations
which are carried on in the rest of the mine expands upon the
stipulations previously submitted.
In my view, the issue presented is a relatively simple
one. Section 75.1 states that Part 75 "sets forth safety
standards compliance with which is mandatory in each underground coal mine subject to the Federal Mine Safety and
Health Act of 1977". Section 77.1 states that Part 77 "sets
forth mandatory standards for * * * surface work areas of
underground coal mines".
These words mean exactly what they say and what they
say is crystal clear. The Souttell Run Tunnel is not a
surface work area because it is underground.

758

The stipulations of the parties and the testimony this
morning demonstrates that the entire tunnel is under the
ground. If "underground" means anything, it means under the
ground. Moreover, it is agreed that this tunnel was driven
through coal and that 12 inches of the immediate overburden
now on top of the tunnel consists of coal. Also, the tunnel
is adjacent to a large area of unmined virgin coal which is
part of the subject mine.
This is dispositive. The Souttell Run Tunnel is both
underground and part of a coal mine. The words are too clear
to admit of any other meaning and I cannot and will not
distort them. Part 75 applies and the citations were therefore, issued properly.
Moreover, there is no basis upon which to apply Part 77.
Clearly, the tunnel is not a surface work area and to hold
that neither Part 75 nor Part 77 applies would be a result
at v·ariance with the intent and spirit of the Act. Indeed,
even the operator does not contend the tunnel should be left
unregulated.
If the operator is not satisfied with the result reached
herein, recourse can be had to rulemaking so as to amend the
scope of Parts 75 and 77. I would state, as I have stated in
other contexts on other occasions, that the administrative law
judge is not a substitute for rulemaking.
I decide this case on the foregoing basis. However, a
further word appears appropriate. I recognize the testimony
from the operator's witnesses that the tunnel is well constructed. I recognize too that the tunnel is used solely to
transport coal. Nevertheless, I am persuaded by MSHA's
evidence that there are hazards from methane, roof falls, and
other circumstances that are peculiar to underground coal
mines. And I am persuaded that these hazards apply to this
tunnel as well as to other parts of the mine. Certainly,
every hazard does not have to apply or be present to the same
degree in the tunnel as in the rest of the mine for Part 75
to apply to the tunnel. The fact that methane never has been
detected in the tunnel also is not determinative. It is well
known that methane can be liberated spontaneously and
unpredictably. Finally, I am convinced that the Souttell Run
Tunnel is an integral part of the extraction and production
process. Admittedly, coal is transported through the tunnel
in a somewhat different manner than in areas closer to the actual face. But everything is part of the same process. It makes
little practical or legal sense to draw artificial distinctions
in what is in fact one continuous activity.

759

Nor have I overlooked the fact that before the coal
enters the tunnel it spends some time above the surface in
the preparation plant. This interruption in the coal's
_presence underground is not, in my view, determinative.
Finally, the Act is to be liberally construed. As
already pointed out a conclusion that neither Part 75 nor
Part 77 applies is one to be avoided. And as between
Part 75 and Part 77 a liberal construction is furthered
by the application of Part 75 where, as the evidence I
have heard today makes clear, the standards for pre-shift
examiners are more stringent under Part 75 than those in
Part 77. In addition, Part 75, unlike Part 77, contains
specific standards with respect to many items involved,
such as fire sensors, water lines, and sanding devices.
Therefore, as an additional but wholly separate reason,
I note the foregoing practical and policy considerations
which in my view further support the result which is in any
event compelled by the precise language of the mandatory
standards.
In light of the foregoing, I conclude that Part 75
applies and that, therefore, as
the parties have agreed,
the citations were properly issued. I have reviewed each of
the citations in accordance with the six statutory criteria
and based upon this review, I conclude that the originally
assessed amounts are appropriate and consistent with the
provisions of the law.
Accordingly, the operator is order to pay $372 within
30 days for the violations contained in the subject docket
numbers.
ORDER
The foregoing bench decision is hereby AFFIRMED.
The operator is ORDERED
decision.

days from the date of this

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Ronald B. Johnson, Esq., Schrader, Stamp & Recht, 816 Central Union
Building, Wheeling, WV 26003 (Certified Mail)

760

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

8 1 MAR 1980
Civil Penalty Proceeding

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

Docket No. WEVA 80-64
A/O No. 46-05121-03022
Wayne Mine

v.
MONTEREY COAL COMPANY,
Respondent

ORDER APPROVING WITHDRAWAL
On March 5, 1980, Petitioner filed a motion for approval of the
withdrawal of the above-captioned civil penalty proceeding and for
the vacation of the citation at issue herein. As grounds for this
motion, Counsel for Petitioner asserted the following:
Citation No. 677462 was issued for a violation of 30
CFR 77.1710(g) for failure to use safety belts and lines
while climbing a 40 feet high steel column to a power
station.
Futher investigation revealed that the persons who
were working without proper safety equipment were employees
of the Appalachian Power Company. The respondent, Monterey
Coal Company, was in the process of putting in a mine near
the location of the transfer station. Appalachian Power
Company was to provide the power necessary for that mine.
At the time the citation was issued, employees of the
Appalachian Power Company were working on the column to
the power station. in preparation for their own use of this
station in supplying power. The respondent exercised no
control over the Power Company's work. Nor did the
respondent monitor the progress of the Power Company's work
in any way. Therefore, the Appalachian Power Company was
not acting as an independent contractor of the respondent
at the time the citation was issued.
Furthermore, the respondent had granted an easement
and an absolute right of way to the Appalachian Power
Company in the metering station located at this transformer
station. Thus, the power company was not working on
respondent's property at the time the citation was issued.
The power station exists near the mine, but not on the mine
site. In addition, non of respondent's employees are
allowed in the power station.

761

Respondent had relinquished all ownership rights in the
property and respondent's employees were never present on
the property. Consequently, respondent should not be found
liable for a violation.
For these reasons, it has been determined that the
citation was issued in error. The inspector who issued the
citation has been consulted and he agrees that, under these
circumstances, the citation should be vacated and the
petitioner withdrawn.
In view of the above, Petitioner's motion is GRANTED.
ORDER
Petitioner's withdrawal of the above-captioned civil penalty
proceeding is approved and Citation No. 677462 is vacated. The proceeding
is DISMISSED.

Forrest E. Stewart
Administrative Law Judge
Distribution:
C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell,
P. O. Box 553, Charleston, West Virginia 25322 (Certified Mail)
Sidney·Salkin, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
Pennsylvania 19104 (Certified Mail)

762

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

3 l MAR 1980

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

Civil Penalty Proceedings
Docket No. BARB 79-209-PM
A.C. No. 22-00101-05001

Petitioner

v.
Docket No. BARB 79-210-PM
A.C. No. 22-00101-05002

AMERICAN SAND & GRAVEL COMPANY,
Respondent

Glendale Operations Mine
DECISION
Appearances:

Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
R. W. Heidelberg, Esq., Heidelberg, Sutherland & McKenzie,
Hattiesburg, Mississippi, for Respondent.

Before:

Judge Charles C. Moore, Jr.

The two cases captioned above involve 26 alleged violations of the
Federal Mine Safety and Health Act of 1977. Fourteen of those alleged
violations involve a charge that Respondent failed to provide adequate
guards as required by 30 C.F.R. § 56.14-1 in its three sand and gravel
plants. Nine ~f the alleged violations are concerned with 30 C.F.R.
§ 56.11-1 which requires safe access to working areas and three involve
isolated items such as lack of a handrail, lack of a cover over an open
hole, and failure to provide an aqequate means of locking out an electrical
switchbox. The latter three allege violations of 30 C.F.R. §§ 56.9-7,
56.11-12, and 56.12-16.
Inasmuch as I will find that some of the violations occurred as alleged,
I make the following findings regarding the six statutory criteria that must
be considered in assessing a civil penalty: Respondent is of moderate size
and no penalty that I assess will affect its ability to continue in business.
All violations were abated promptly and in good faith and, as a matter of
fact, inasmuch as Respondent closed down its mines when the inspector came
and did not reopen them until all violations had been abated, I do not see
how any better faith could have been shown in abating the violations.
Respondent has no prior history of violarions and has received three
certificates of achievement in safety from the Federal Government. Matters
of negligence and gravity will be taken up with respect to each violation
that is found to have occurred.

763

As to the.guarding violations, which will be taken up first, it is my
conviction that the standard was designed to prevent accidental injuries
but was not intended to protect someone who deliberately reaches into a
hazardous area. As to the allegations of a failure to provide safe access,
it is my view that the standard requires that a respondent provide safe
access to a working area but that the standard cannot be used as a catchall
to cover actions prohibited by other standards. I do not therefore consider a failure to provide guards as required by 30 C.F.R. § 56.14-1 to be,
in addition, a failure to provide safe access.
GUARDING VIOLATIONS AT PLANT A
30 C.F.R. § 56.14-1
Citation No. 081703, alleges that the main V-belt drive pulley on the
1-A dredge was not adequately guarded. lhe testimony established that the
V-belt drive in question was guarded on all sides except underneath the
pulley. In order to get caught in the bottom part of the pulley, a person
would have to reach under the guard and up, but it was the inspector's
opinion, that because certain materials were stored under the pulley someone trying to get material from that area could become caught in an unguarded
pinch point. It was in reality not an area which should be guarded but an
area where materials should not be stored. I find that the Secretary of
Labor has failed to carry his burden of proof with respect to this violation
and accordingly the citation is vacated.
Citation No. 081704 alleges that the plant A shaker V-belt drive was not
adequately guarded. The V-belt drive was 3 feet above the catwalk and the
top part of the pulley was guarded but the bottom was not. It is difficult
to ascertain the exact factual situation from the testimony but there was
testimony that in order to reach the pinch point, an employee would have to
reach around a motor and an electrical box. The pulley itself was 6 inches
in diameter, but there was no testimony as to whether the pinch point was at
the top of the pulley or the bottom of the pulley. The danger of a pulley
3 feet above the walkway not guarded at the bottom is that in slipping or
falling a worker's hand or clothing might engage the pinch point. From the
description given, I think it highly unlikely that a miner would accidentally contact the pinch point of the pulley. The citation is vacated.
Citation No. 081705 alleges that the plant A shaker balance wheel was
not guarded. This particular balance wheel had spokes and was 5 feet above
the work platform. At first there was testimony that it was not guarded,
but this was later amended to state that it was guarded, but not adequately.
A short set of steps made the wheel, which was 1 foot in diameter, accessible.
A 5-foot high unguarded spoked wheel would be covered by the standard regardless of the ladder if it were such that someone walking along the catwalk
could accidentally become injured by the moving wheel. I am discounting the
ladder because the only purpose of the ladder is to service the balance
wheel and the balance wheel is only serviced when it is not working. In

764

my opinion the ·standard is intended to cover dangerous areas where a miner
might be, but not up on a ladder or a set of steps where there would be no
reason to climb were the wheet in motion. I am not convinced that this pulley
was unguarded. The inspector changed his testimony because the pulley in
front of the balance wheel was guarded. A miner would have to reach around
that guarded pulley approximately 2 feet before coming in contact with the
balance wheel. I cannot find that the condition was such that someone would
accidentally come in contact with the wheel. A picture or diagram might have
convinced me to the contrary, but the oral evidence was not sufficient to
sustain the Secretary's burden of proof. The citation is vacated.
Citation No. 081710 alleges that the sand pump V-belt drive pulley was
not adequately guarded. There was a guard on the V-belt drive pulley that
was supplied by the manufacturer but it was the type that was designed to
fit down over the drive shafts so there was a portion of the lower part of
the guard that contained an opening through which a miner could reach the
drive pulley. The notch in the lower part of the guard was approximately
8 by 12 inches and it was the testimony of the inspector that a miner might
accidentally fall or reach into this area while shoveling. From the
description, I find it was possible for a miner to accidentally engage the
V-belt and be injured. I do not find the likelihood of such injury to be
high nor do I find the negligence to be of a high order. The violation
occurred, however, and a penalty of $30 is assessed.
Citation No. 081711 alleges that the desand conveyor tail pulley was not
adequately guarded. The pulley in question is bolted to the outer wall of
the plant and normally it is about 10 feet above ground level. Gravel and
sand, however, accumulate in the area under the pulley. At the time of the
inspection, the accumulation had reached the point where the pulley was only
4 feet above the sand and gravel. The pulley, which was 16 inches in diameter, was covered by a guard which extended approximately 1 foot to the right
of the pinch point and approximately 6 inches to the left of it. Court
Exhibit No. 1 is a rough drawing of the pulley and guard and, as can be seen,
the pinch point is at the bottom of the pulley and somewhat to the left of
the center where the moving belt first makes contact with the pulley. The
danger point is not the pulley itself, but the point where the belt and
pulley meet to create a "wringer" effect which could draw a hand or a miner's
clothing into the belt and pulley. As the drawing shows, the guard extended
farther to the right than it did to the left, even though the pinch point
was on the left side. While I do not think it very likely, I think it is
possible for a miner to accidentally become enmeshed in this pinch point.
Gravity and negligence are minimal, however. A penalty of $30 is asse~sed.
GUARDING VIOLATIONS AT PLANT B
Citation No. 081713 alleges that the desand conveyor head pulley was not
guarded. The head pulley in question was 3 to 3-1/2 feet above the catwalk
next to the conveyor, was 24 inches in diameter, and was unguarded. The
inspector saw a man walking near the head pulley and was told that the man
had to check the system while it was running. The inspector did not observe

765

a chain guard that "WOuld prohibit someone from approaching the pulley. It
was a cl~ar violation, it was hazardous, and Respondent was negligent in
allowing the condition to exist. A penalty of $60 is assessed.
Citation No. 081715 alleges that the reclaim conveyor head pulley was
not guarded. The head pulley in question was 26 inches in diameter, was
located 3 feet above the catwalk and was attached to an I-beam framework
which was between the catwalk and the pinch point of the pulley. The pinch
point was only 7 inches inside the outer edge of the I-beam and in my
opinion, a tripping or slipping miner trying to catch himself might well
contact the pinch point. A hazard existed and the violation was established,
but negligence was of a low-degree because of the channel iron framework
around the pulley. A penalty of $30 is assessed.
Citation No. 081716 alleges that the desand pump V-belt drive was not
adequately guarded. The unguarded V-belt drive mechanism is located in a
framework supporting a tank. This cubicle area below the tank measured
4 feet wide on each of four sides and 6 feet tall. 1bree of the four
sides were guarded with screen mesh. The fourth side was open but was partially blocked by a pump and its supports. It was testified that, while the
screened area was not entered while the machinery was working, it would be
possible to squeeze into the area beside the pump housing and contact the
drive mechanism. (The unguarded drive can be seen at the center of the
photograph labeled Respondent's Exhibit No. 1.) While someone could
deliberately enter this screened area and become injured, it is not, in my
opinion, probable that someone would accidentally fall into or otherwise
enter this area. I therefore rule that no violation has been proved with
r~spect to this citation and the citation is accordingly vacated.
Citation Nos. 081717 and 081718 charged respectively that the head
pulleys on the long and short conveyors were not guarded. 1bese citations
are treated together as the testimony indicates almost identical conditions.
Court Exhibit 2 is a drawing of the areas that were guarded. 1be inspector
testified that the pulleys were not guarded, and it is true that there was
not a separate guard on each pulley. But in each case there was a V-belt
drive driving the head pulley and the V-belt drive was guarded. The pinch
point for the head pulley was at the top of the pulley and directly behind
the guard for the V-belt drive. Considering the drawing (Court Exh. 2)
together with the testimony, I find it highly unlikely that any miner could
accidentally be injured by the pinch point of the drive pulley which is some
16 inches behind the guard. 1be two citations are accordingly vacated.
GUARDING VIOLATIONS AT PLANT F
Citation Nos. 081720 and 81723 both allege that the tail pulley and feed
trough areas were not adequately guarded on the concrete conveyor and sand
conveyor respectively. The alleged violations are sufficiently similar to be
treated together. In both cases (see Respondent's Exh. 6), there is an
unguarded pinch point on the troughing idlers which is created by the metal

766

feed trough. The citations also allege that the tail pulleys themselves
were not adequately guarded by the factory-mounted guard. The testimony
regarding the pulley itself is not sufficiently clear to determine that a
violation existed, but the pinch points in the troughing area were unguarded.
As to whether or not the standard requires such guards, I hold that it does
and I am attaching hereto my decision in Dravo Limestone Corporation v. MSHA,
Docket No. IBMA 77-M-l, (October 28, 1977) which explains why I consider the
standard to apply. The violations were serious, but I consider the negligence to be low as it is unlikely that a mine operator would realize that
this standard covered idling pulleys in a trough area. A penalty of $30
is assessed for each citation.
Citation No. 081726 alleges that the desand pump V-belt pulley was not
adequately guarded. This pulley contained a factory-made guard with a notch
measuring 8 by 12 inches, cut so that the guard could be slipped down over
a drive shaft. Except for location, the factual situation is the same as
that involved in Citation No. 081710 and my findings with respect to this
citation are the same. A penalty of $30 is assessed.
Citation No. 081729 alleges that the gravel shaker conveyor tail pulley
and an extended shaft were not adequately guarded. The inspector testified
that the factual situation, except for location, was the same as that
involved in Citation No. 081711. My decision is the same and a penalty of
$30 is assessed.
SAFE ACCESS CITATIONS AT PLANT A
30 C.F.R. § 56.11-1
Citation No. 081706 alleges that a safe means of access was not provided for the pea gravel conveyor. The head pulley at the end of the catwalk was unguarded and there was no railing in the area where maintenance
was performed on the pulley. There was, however, a chain guard approximately 4 feet from the end of the catwalk where the pulley was located.
In order to do maintenance work on the head pulley, it was necessary to
cross the chain barrier, but at such times the pulley and belt were not
in operation. I think the chain guard is adequate to keep out miners having
no 'WOrk to do in the area, but of course it was not sufficient to keep out
out maintenance men who needed access to the pulley to perform their jobs.
Since the machinery did not operate while maintenance work was being done,
these miners were not endangered by the pulley, but by a falling hazard.
It is that falling hazard which, in my opinion, establishes the violation
here. The negligence was very low, however, and MSHA has not convinced
me that the falling hazard was great. A penalty of $20 is assessed.
Citation No. 081707 alleges that a safe means of access was not provided at the oversize conveyor head pulley. 'lltis is the same factual
situation as in Citation No. 081706, except for the location. I make the
same findings and a penalty of $20 is assessed.

767

Citation No-. 081708 alleges a safe means·of access in the load-out
conveyor head pulley area was not provided. This is the same situation as
in the two previous citations, except for the location and I make the same
findings. A penalty of $20 is assessed.
Citation No. 081712 alleges a safe means of access was not provided in
the desand conveyor head pulley area. Again, the factual situation, except
for location, is the same as in Citation No. 081706 and the two alleged
violations considered after that. My findings are the same and a penalty
of $20 is assessed.
SAFE ACCESS CITATIONS AT PLANT F
Citation No. 081721 alleges a safe means ~o perform maintenance was not
provided at the concrete sand conveyor head pulley drive. This conveyor had
no catwalks or handrailings and the inspector was told "we walk the belt"
(Tr. 128) to maintain the conveyor. No safety belts were used and the conveyor is 15 feet above ground. The defense witness indicated that maintenance was performed from the bucket of a front-end loader and that other
inspectors had not objected, but I think the defense witness was confused as
to which citation he was being questioned about. I find that the violation
occurred, that Respondent was negligent, and that a falling hazard existed.
A penalty of $40 is assessed.
Citation No. 081722 ·alleges a safe means of access was not provided
to perform maintenance on the mason sand conveyor head pulley drive. The
factual situation, except for location is the same with respect to this
violation as in Citation No. 081721. I make the same findings and a penalty
of $40 is assessed.
Citation No. 081724 alleges that a safe means of access to perform maintenance to the track cross-conveyor was not provided. Maintenance was performed on the track cross-conveyor by having employees work from a front-end
loader bucket that is raised to the level of the conveyor. The inspector
testified that maintaining machinery from loader buckets is a common cause
of accidents throughout the industry. I think this is the citation that the
defense witness was talking about when he stated that other inspectors had
known of the practice and not disapproved. Be that as it may, the bucket
could fall with the men in it or it could be moved unintentionally and I
am convinced it is a hazardous situation. I find the violation occurred,
that Respondent was negligent, and that a hazard existed. A penalty of
$40 is assessed.
Citation No. 081727 alleges a safe means of access was not provided to
the desand conveyor head pulley drive. This is the same type of factual
situation presented in previous citations where a chain barrier is located
. approximately 4 feet from an unguarded pulley drive, and there is no end
railing at the pulley drive end of the elevated catwalk. I make the same
findings as I did with respect to Citation No. 081706 and others. A penalty
of $20 is assessed.

768

Citation No. 081730 alleges a safe means to perform maintenance was
not provided at the gravel shaker conveyor head pulley drive. In order to
grease the head pulley, miners were required to stand on the conveyor belt
and no safety belts were provided. A fall of 10 feet could result. While
the factual situation was not described in sufficient detail for me to
make a finding of extreme hazard, I do find there was sufficient hazard
to constitute a violation and that Respondent was negligent. A penalty
of $40 is assessed.
CITATIONS NOT INVOLVING GUARDING OR SAFE ACCESS
Citation No. 081709 alleges a violation of 30 C.F.R. § 56.9-7 in that
there was a missing piece of handrailing in the guard for the load-out
conveyor. The piece of handrailing missing was 42 inches in length. The
railing itself totaled about 400 feet. The standard cited does not require
a guard rail, but it requires that an unguarded conveyor be equipped with a stop cord. It may seem unreasonable that a stop cord should be provided
on this conveyor because of the 42-inch gap in the railing, but that, nevertheless, is what the regulations require. I find the hazard of falling
onto the belt through this 42-inch gap of a low order and I also find the
negligence of a low order. But a violation did exist. A penalty of $30 is
assessed.
Citation No. 081725 alleges a violation of 30 C.F.R. § 56.11-12 in that
a cover was not provided over an open hole, at the top gravel-loading platform. The platform in question was 20 feet above ground level and the two
planks that had been removed left an opening measuring 6 feet by 20 inches.
The danger was to "stick pickers" who might fall through the hole. The
defense was that this platform was not a work area, had been used four times
in 6-1/2 years and that before any stick pickers performed this rare chore,
all holes in the platform were covered. Under the circumstances, I find
that this was not the type of area contemplated by the standard cited, and
the citation is accordingly vacated.
Citation No. 081728 involves an alleged violation of 30 C.F.R.
§ 56.12-16 in that an adequate means of locking out an electrical switchbox

was not provided. After the inspector's testimony, the attorney for the
Secretary realized that the evidence did not establish a violation of the
safety standard and withdrew the citation from his petition. The citation
is accordingly vacated.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, a civil penalty in
the total amount of $560 within 30 days of the entry of this order.

~c01~1.

Charles c. Moore, Jr.
Administrative Law Judge

769

/

'

Distribution:
Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor,
1929 9th Avenue South, Birmingham, AL 35205 (Certified· Mail)
R. W. Heidelberg, Esq., Heidelberg, Sutherland & McKenzie, The 301 West
Pine Building, P.O. Box 1070, Hattiesburg, MS 39401 (Certified Mail)

770

U nitcd Sta tcs Department of the I ntcrior
OFFICE OF IfE:\IU'.\"GS :\:\J) APPEALS
HEARINGS DIVISION
4015 \Vil.SO:-./ ROl'UX.-\Rll

ARLINGTON, \"IRGINI.'\

:2'..!'..iOJ

October 28, 1977

Application for Review

DRAVO LIME COMPANY,
Petitioner

v.

Docket No. IBMA 77-M-l
Order No. 7; November 2, 1976

MINING ENFORCEMENT AND SAFETY
ADMINISTRATION (MESA),
Respondent

Federal Metal and Nonmetallic
Mine Safety Act
Cabin Creek Mine
DECISION

Appearances:

Louise Q. Symons, Dravo Corp., Pittsburgh, Pennsylvania,
for Petitioner;
Robert Cohen, Esq., Office of the Solicitor, Depar~ment
of the Interior, for Respondent.

Before:

Administrative Law Judge Moore

This case involves review of an order of withdrawal issued under
the Federal Metal and No~~etallic Mine Safety Act. The order is
similar to a 104(b) order under the Federal Coal Mine Health and
Safety Act of 1969, in that it was issued because of applicant's
·failure to abate Notice of Violation No. 105 which was issued on
June 9, 1976. Unlike the procedures under the Coal Mine Health and
Safety Act however, the belt in question was not closed even though
it was the subject of a withdrawal order. While the parties d:i.d not
explain this anomaly in detail, they are in apparent agreement that
the appropriate. way to obtain review of an order of withdrawal is
to fail to comply with it.
The facts themselves are not in dispute. Applicant operates a
conveyor belt which is skirted in a certain area and it has not
placed guards in that are~. The question is whether the standard
requires guards in a skirted area of a conveyor belt.
Applicant's Exhibits 2, a scale drawing, 1/ and 3, a photograph,
clearly depict the area which ~IBSA contends should be guarded. The

!/

A portion of the drawing is attached to this decision.

771

area in question is where the belt designated LS-1 bringing limestone
out of the mine dumps on to the belt designated LS-2 which transports
the limestone to a stock pile for future milling. For dust control
purposes the entire dumping area is shielded with plate metal with
rubber belting attached to the sides of the shielding. This rubber
belting attached to the plate metal rubs against the belt itself
forming a dust shield. MESA does not contend that all idler rollers
should be shielded, because if a miner caught his hand between the
roller and the belt in an unskirted area, the belt could give way
and his hand could be withdrawn. In the skirted area however, there
is only five-eighths of an inch 2/ between the side of the metal
skirt and the belt so that if a ;-iner's hand got caught between the
roller and the belt, the belt could only raise up five~eighths of
an inch before being stopped by the metal skirt. It is HESA's contention that this constitutes a "pinch point" which in turn gives
rise to the requirement of guards to prevent any part of a miner's
body from being caught in such a 11 pinch point." In this instance, a
pinch point is something like a clothes wringer.
The mandatory standard allegedly violated, 30 CFR 57.14-1 states:
"Mandatory. Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; fly wheels; couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which may be contacted by persons and which may cause injury to persons shall be guarded." It
has been conceded that if the above-quoted standard does not require
guards at the "pinch points" previously described, that there is no
other regulation that would require such guards.
It is conceded by MESA that the idler rollers involved in the
instant case are not among the items listed in the standard, such
as drive, head, tail, and. takeup pulleys or gears, sprockets, chains,
couplings, shafts, sawblades or fan inlets. It is argued however, that
the existence of the "pinch point" together with the ladder and catwalk beside the conveyor belt causes the idler rollers to become
"similar exposed moving machine parts which may be contacted by persons, and which may cause injury***·" Most of the pieces of equipment specifically referred to in the standard are rotating items with
nonsmooth surfaces - gears, sprockets, chains, sawblades, fan inlets.
Fly wheels may be either solid or £poked, couplings and shafts could
be rough or smooth, and head, drive, tail and takeup pulleys are generally smooth. Obviously the idler pulleys involved in the instant
case are not similar to sawblades or gear sprockets, so if they are
similar to anything mentioned in the standard, it is the drive, head,
tail, or takeup pulleys.
Drive pulleys, head pulleys, tail pulleys and takeup pulleys
all contain "pinch points" (Tr. 55-56, MESA Exhibit R-6, pages 2
and 3) that was undoubtedly the reasons why these particular pulleys

.?../

This is the distance shown on Applicant's Exhibit 2,·but the
testimony indicates that it varies.

772

were specifically included in the standard. Idler pulleys however,
do not contain "pinch points" as a rule, because _the belt has leeway
to move away from the idler pulley in the absence of a skirted area
such as the one involved in the instant case. It is the "wringer
effect" which can cause a serious injury. It is my opinion, that
the combination of the skirted belt with the catwalk and ladder next
to it causes the idler pulleys to become "similar exposed moving
machine parts which may be contacted by persons, and which may cause
injury * * *·"
The existence of a stop cord beside the belt which will stop
the drive and result in the belt stopping after a movement of approximately 22 feet may diminish the extent of a potential injury but
would not prevent the injury unless pulled five seconds before contact with the "pinch point" (See MESA Exhibit R-5, page 3 and Tr. 52).
I certainly disagree with the implication on page 11 of petitioner's
brief that MESA is attempting "to guard against the ultimate in stupidity." I consider the likelihood of a miner stumbling on the ladder
or catwalk and having his hand or some other part of his body or
clothing caught in the "pinch point" sufficiently high to require MESA
to interpret the regulation as it did. I interpret it the same way
and hereby AFFIRM the order of withdrawal.
All proposed findings not included above are rejected.

G/1-?A (. /17?t:Jr/17/ ~ ·

Charles C. Moore, Jr •
.Administrative Law Judge
Date Entered: October 28, 1977
Distribution:

Louise Q. Symons, Esq., Counsel for Dravo Li.me Co., Dravo Corp.,
One Oliver Plaza, Pittsburgh, PA 15222 (Certified Mail)
Robert A. Cohen, Esq., Mining Enforcement and Safety Administration, Office of the Solicitor, 4015 Wilson Blvd., Arlington,
VA 22203

773

Sl<IRTBOARD RUBBEHRETAlf\JER

SKIRTBOARD FRAf\'iE

SKIRTBOARD RUBBE,

-·.I

~~ LINKBELT II
•u.s. GOVERNMENT PRINTING OFFICE : 1980 0-311-143/3453