SEPTEMBER 1979

The following cases were Directed for Review during the month of September:
Secretary of Labor, MSHA v. Knox County Stone Co., Inc., DENV 79-359-PM;
(Judge Kennedy, July 23, 1979).
Victor McCoy v~ Crescent Coal Company, PIKE 77-71; (Judge Lasher,
August 8, 1979) •
Climax Molybdenum Company v. Secretary of Labor, MSHA & Oil, Chemical and
Atomic Workers' International Union, Local 2-24410, DENV 79-102-M through
DENV 79-105-M; (Judge Michels, August 14, 1979).
Review was Denied in the following case during the month of September:
Copper Company v. Secretary of Labor, MSHA, DENV 79-433-PM;
(Judge Merlin, August 9, 1979).

Magma

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

September 4, 1979
LOCAL UNION NO. 3453, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA

v.

Docket No. HOPE 77-l93
IBM.'\ No. 78-7

KANAWHA COAL COMPANY
DECISION
This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978. Accordingly, it is
before the Commission for disposition. Section 301 of the Federal
Mine Safety and Health Amendments Act of 1977, 30 U.S.C. §961 (1978).
The decision of Administrative Law Judge Stewart awarding compensation and interest in this proceeding under section llO(a) of the
Federal Coal Mine Health.and Safety Act of 1969, 30 U.S.C. §820(a)
(1976)(amended 1977), is affirmed. See our decision in Youngstown
Mines Corporation, No. HOPE 76-231 (August 15, 1979).

Marian Peavtman ~ease, Commissioner

\/
,,

79-9-1

FED~RAL MINE S.a.FETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR .
WASHINGTON, D.C.

20006

September 4, 1979
LOCAL UNION NO. 5429, UNITED MINE
WORKERS OF AMERICA

v.

Docket No. MORG 79-13

CONSOLIDATION COAL COMPANY
DECISION
This compensation proceeding arises under section 111 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~· (1978) ["the
Act"]. 1./ The United Mine Workers of America (UMWA) filed with the
Connnission on November 1, 1978, an application for compensation for work
allegedly lost by two shifts of miners idied by a section 103(k) withdrawal
order issued to Consolidation Coal Company (Consol) on August 14, 1978. 2/
On January 24, 1979, Administrative Law Judge Fauver granted Consol's
motion to dismiss the application, finding that the applicant had failed
to comply with the time limits set in Rule 29 of the Commission's Interim
Procedural Rules, 1./ and had not shown a reasonable basis for the late
filing of the compensation claim.

1./

§111 of the Act provides in pertinent part:
If a coal ••• mine or area of such mine is closed by an order
issued under section 103 ••• all miners working during the shift
when such order was issued who are idled by such order shall be
entitled, regardless of the result of any review of such order, to
full compensation by the operator at their regular rates of pay for
the period they are idled, but for not more than the balance of
such shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by such order
shall be entitled to full compensation by the operator at their ·
regular rates of pay for the period they are idled, but for not
more than four hours of such shift •.• The Commission shall have
authority to order compensation due under this section upon the
filing of a complaint by a miner or his representative ••••
]:_!
§103(k) of the Act provides in pertinent part:
In the event of any e.ccident ••• in a coal ••• mine, an authorized
representative of the Secretary, when present, may issue such
orders as he deems appropriate to insure the safety of any person ••••
1./ Interim Rule 29 provided:
An application for compensation shall be filed within 30 days after
the commencement of the period the applicants are idled or would
have been idled as a result of the order which gives rise to the
claim.
On July 30, 1979, procedural rules replacing the interim rules became
effective. Under the new rules the period for filing applications for
compensation is increased to 90 4ays. 44 Fed. Reg. 38,230 (1979) (to be
codified in 29 CFR §2700.35).
79-9-2

The Commission granted the UMWA's petition for discretionary review
to determine whether the administrative law judge erred in granting
Consol's motion to dismiss. For the reasons that follow, we conclude
that the 30-day filing period set forth in Interim Rule 29 for filing
applications for compensation under the 1977 Act may be extended in
appropriate circumstances and that such circumstances are present in
this case. Accordingly, we reverse and remand for further proceedings
consistent with this opinion.
On August 14, 1978, a Mine Safety and Health Administration ·(MSHA)
inspector issued a section 103(k) withdrawal order at Consol's Arkwright
Mine following a roof collapse that killed two miners. A. Neil Humphreys,
a district safety inspector for the UMWA, was notified of the roof fall
and inspected the area with federal, state, and company officials.
Humphreys investigated the accident and determined, in his view, that
certain miners had not been compensated pursuant to section 111 of the
Act. Humphreys directed the union's health and safety committee to meet
with management and request compensation; the committee's request was
refused. On September 18, 1978, Humphreys and the health and safety
committee met with management representatives. At this meeting the
management representatives refused to pay the requested compensation or
to provide Humphreys with a list of miners scheduled to work on the
involved shifts. On September 28, 1978, management reiterated its
position that no compensation was due under section 111.
In light of these events, Humphreys filed a discrimination complaint
under section 105(c) of the Act, believing it to be the only course of
action available to him. On October 2, 1978, an MSHA representative
informed Humphreys that a compensation claim under section 111, rather
than a discrimination complaint, was appropriate under the circumstances.
He further informed Humphreys that there was a 30-day time limit on the
filing of compensation claims. On November 1, 1978, the UMWA filed an
application for compensation. !!_/
On review, the UMWA argues that the 30-day filing period in Interim
Rule 29 can be extended in appropriate circumstances and that such
circumstances exist in this case. Consol urges that the judge properly
concluded that the facts do not reveal a reasonable basis for extending
the 30-day period to permit the late filing of the application for
compensation. Consol contends also that the failure to file within the
time limits prescribed by the Commission's rule "bars the agency from
exercising jurisdiction over the matter". In Consol's view, United Mine
Workers of America v. Kleppe, 561 F.2d 1258 (7th Cir. 1977), controls
the Commission's decision in this case. We reject Consol's arguments.
!±_/
The facts recited are largely derived from an affidavit by Humphr.eys
that was attached to the UMWA's opposition to Consol's motion to dismiss.

1301

In deciding whether a limitations period may be extended or tolled,
the basic question "is one of legislative intent whether the right shall
be enforceable .•• after the prescribed time." Burnett v. N. Y. Central
R. R., 380 U.S. 424, 426 (1965). Unlike other provisions of the Act,
however, (e.g., sections 105(a), 105(c)(3), and 106(a)(l)), Congress did
not provide a time period for filing compensation claims under section
111. The 30-day limit at issue appeared in the Commission's Interim
Procedural Rules. On the question of whether the 30-day filing period
provided for in the Commission's interim rules can be extended in appropriate circumstances, the rules themselves shed little light. For this
reason, we will interpret the rule in a manner consistent with the
purposes of the statute it seeks to implement. See Irvington Moore, Di~.
of U.S. Natural Resources v. O.S.H.R.C., 556 F.2d 431, 435 (9th Cir.
1977).
The Federal Mine Safety and Health Act of 1977 is a remedial statute,
the "primary objective [of which] is to assure the maximum safety and
health of miners." U.S. Senate, Committee on Human Resources, Subcommittee
on Labor, Legislative History of the Federal Mine Safety and Health Act
of 1977, 95th Cong., 2d Sess. at 634 (1978). Cf. Freeman Coal Mining
Company v. IBMOA, 504 F.2d 741, 744 (7th Cir. 1974). The Senate Committee
emphasized the remedial nature of the Actrs compensation provision. The
Committee stated:
This provision
is not intended to be punitive, but
recognizes that miners should not lose pay because of
the operator's violations •••. It is therefore a
remedial provision which also furnishes added incentive
for the operator to comply with the law. This provision
will also remove any possible inhibition on the inspector
in the issuance of closure orders. Legislative History,
supra, at 634-635.
In interpreting remedial safety and health legislation, "[i]t is so
obvious as to be beyond dispute that •.• narrow or limited construction
is to be eschewed .•• [L]iberal construction in light of the prime
purpose of the legislation is to be employed." St. Mary's Sewer
Pipe Co. v. Director, U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd
Cir. 1959); Phillips v. Interior Board of Mine Operations Appeals, 500
F.2d 772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). We
believe that a liberal construction of the 30-day filing period for
compensation claims requires a conclusion that the period may be
extended in appropriate circumstances. See, Dartt v. Shell, 539 F.2d
1256, 1260 (10th Cir. 1976), aff'd by eq~ly divided court, 434 U.S.
99 (1977); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th
Cir. 1978); Moses v. Falstaff Brewing Corporation, 525 F.2d 92 (8th
Cir. 1975).

1302

Furthermore, while section 111 of the 1977 Act does not specify a
time limit for the filing of compensation claims, the Act's discrimination provisions contain analogous time limits. In explaining section
105(c)(2) 's requirement that a discrimination complaint be brought
within 60 days of the alleged violation, the Senate committee stated:
The bill provides that a miner may, within 60 days
after a violation occurs, file a complaint with the
Secretary. While this time-limit is necessary to avoid
stale claims being brought, it should not be construed
strictly where the filing of a complaint is delayed
under justifiable circumstances. Circumstances which
could warrant the extension of the time-limit would
include a case where the miner within the 60 day period
brings the complaint to the attention of another agency
or to his employer, or the miner fails to meet the time
limit because he is misled as to or misunderstands his
rights under the Act. Legislative History, supra, at
624. ii
The Senate committee also expressed a similar view as to the 30-day
period provided for in section 105(c)(3) in which a miner can file a
discrimination complaint on his own behalf if the Secretary determines
that no violation has occurred: "[A]s mentioned above in connection
with the time for filing complaints, this thirty-day limitation may be
waived by the court in appropriate circumstances for excusable failure
to meet the requirement." Legislative History, supra, at 625.
Thus, it is clear that Congress intended that the time periods
for filing discrimination complaints under the 1977 Act can be extended
in appropriate circumstances. Because section 105 and section 111 are
both part of the same remedial legislation, they should be interpreted
and applied in a consistent fashion. For this reason also, we conclude
that the 30-day period provided in Interim Rule 29 for filing applications for compensation can be extended in appropriate circumstances.

ii

Baker v. North American Coal Companv., 8 IBHA 164, 179-80 (1977),
aff'd in part, rev. in part, Baker v. IBHOA, 595 F.2d 746 (1978);
decided under the discrimination provisions of the Federal Coal Hine
Health and Safety Act of 1969, 30 U.S.C. §801 et~· (1976)(amended
1977)("1969 Act"), reached a similar conclusion.

1303

We reject Consol's assertion that the Seventh Circuit's decision
in UMWA v. Kleppe, supra, controls our decision in this case. First,
Kleppe is distinguishable from the present case. Consol relies on the
court's statement that the Secretary of Interior's regulation providing
a 45-day period for the filing of compensation claims under section
llO(a) of the 1969 Act, "is not a 'statute of limitations' designed to
protect mine operators from stale claims, but simply a condition
precedent to invocation of the agency's administrative jurisdiction •.•• "
561 F.2d at 1261. ~/ The petitioner in Kleppe, however, had argued in
the administrative proceedings below that the regulation setting a 45day filing period was invalid; no argument was made before the agency
that the time limit should have been tolled·under the circumstances
therein involved. Therefore, on appeal the court noted that, in view
of the "vacuous record" in this regard, it could not determine what
\)(effect~ refusal.t~ toll the lim. itations period would have had on the
1
\\.egulation's validity. 561 F.2d at 1263.
Second, in Kleppe the court was faced with an interpretation by
the Board of Mine Operations Appeals of a regulation promulgated by
the Secretary of Interior under the 1969 Act. Here, the Connnission is
interpreting its own procedural rule under the 1977 Act.
Our next inquiry is whether the facts in the present case warrant
an extension of the 30-day time limit. The primary purpose of a
limitations period such as that contained in Interim Rule 29 is to
assure fairness to the parties against whom claims are brought.
Burnett v. N.Y. Central R.R., supra, 380 U.S. at 428. Limitations
periods
'promote justice by preventing surprises through the
revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and
witnesses have disappeared. The theory is that even if
one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation
and that the right of be free of stale claims in time
comes to prevail over the right to prosecute them. '
Order of Railroad Telegraphers v. Railway Express Agency,
Inc., 321 U.S. 342, 348-349. Moreover, the courts ought
to be relieved of the burden of trying stale claims when
a plaintiff has slept on his rights. Burnett, supra,
380 U.S. at 428.
6/
We note, however, that, despite this characterization, the court
analogized the regulation to the time limits for the filing of pleadings
under Fed. R. Civ. P. 12(a) and the taking of appeals from final judgments under Fed. R. App. P. 4, both of which can be extended for
excusable neglect.

1304

Tp be balanced· against this policy of repose, however, are considerations
of whether "the interests of justice require vindication of the plaintiff's
rights" in a particular case. Id.
In the present case, the applicant did not sleep on its rights.
Rather, from the time that it first discovered the potential claim it
attempted to secure compensation for the idled miners. This was done
first through a request for payment made by the health and safety
committee, then through a meeting with management representatives,
followed by an attempt to secure relief through the filing of a discrimination complaint, and, finally, filing .an.application for compensation
within 30 days after being informed that this was the proper course to
follow. Furthermore, Consol does not argue, and the record does not
indicate, that it in any manner relied on the policy of repose embodied
in Interim Rule 29's 30-day filing period or was otherwise prejudiced.
In fac·t, as discussed above, it had notice of the claim to compensation
soon after the events giving rise to the claim occurred. For these
reasons, we conclude that the judge erred in finding that a reasonable
basis was not shown for allowing the late filing of the application
for compensation in this case.
Accordingly, we reverse and remand for further proceedings consistent with this decision.

PearlmaniNease,
Commissioner
.
I
.

I

. I
'

1305

I
o,,'

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

September 17, 1979
UNITED STATES STEEL
CORPORATION,

,

Docket Nos. PITT 76-160-P
PITT 76-162-P

v.

IBMA No. 77-33
SECRETARY OF LABOR,
MINE SAFETY Al."\ID HEALTH
ADMINISTRATION (MSHA)
DECISION
This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978. Accordingly, it is before
the Commission for decision. 30 U.S.C. §961 (1978). The administrative
law judge found two violations of 30 CFR §75.1714-2(a) 1/ and assessed a
penalty of $100 for each violation. U.S. Steel appealed the finding of
violations and the amount of the penalties. We affirm the judge's
decision.
On April 7, 1975, a MESA inspector issued a notice of violation of
§75.1714-2(a) after observing an employee of U.S. Steel neither wearing
nor carrying a self-rescue device in an underground section of Maple
Creek No. 2 Mine. On May 9, 1975, a MESA inspector issued a notice of
violation of §75.1714-2(a) after observing two men neither wearing nor
carrying self-rescue devices while performing electrical work at the
slope bottom of U.S. Steel's Robena No. 1 Mine.
U.S. Steel argues that 30 CFR §75.1714-2(a) places no obligation on
the operator with respect to the wearing or carrying of self-rescue
devices. The company asserts that it complied with the standard by
establishing a program designed to assure that self-rescue devices are
available to all employees, by training all employees in the use of the
devices, and by enforcing its program with due diligence. U.S. Steel
];_/

30 CFR §75.1714-2(a) provides:
(a) Except as provided in paragraphs (b) and (c) of this section,
self-rescue devices meeting the requirements of §75.1714 shall be
worn or carried on the person o~ each miner.

79-9-6
. 1306

also argues that the penalties are excessive in view of its good history, prompt abatement and lack of negligence·
It is well established that under the Federal Coal Mine Health and
Safety Act of 1969 ]:./ an operator is liable for violations of mandatory
health or safety standards without regard to fault. Valley Camp Coal
Co., 1IBMA196 (1972); Webster County Coal Corp., 7 IBMA 264 (1977);
,Republic Steel Corp., 1 FMSHRC 5, 9-10 (1979). Thus, in the present
case the issue is not whether the operator. acted negligently, but whether it in fact complied with the mandatory language of 30 CFR §75.17142(a). ~ushton Mining Co. ,f8 IBMA 2d55, 259-~b60 (1978). The.edited h
standar requires that se1 -rescue evices
e worn or carrie on t e
person of each miner." The administrative law judge found, and U.S.
Steel does not dispute, that its employees were not wearing or carrying
self-rescue devices. Therefore, we affirm the judge's finding of a
violation. ]/U.S. Steel's safety program and its efforts to enforce it
are irrelevant to the finding of a violation. Rather, these factors are
appropriately considered in the assessment of a penalty. !:±./
The judge's decision reflects that he considered the criteria set
forth in section 109(a)(l) of the 1969 Act in assessing a penalty of
$100 for each violation. The penalties are appropriate and will not be
disturbed.
30 U.S.C. §801 et~· (1976) (amended 1977).
U.S. Steel's argument relying on North American Coal Corp., 3 IBMA
93 (1974), is not persuasive. The rationale of the Board's decision in
North American has been limit~d to the language of the particular standard involved in that case, 30 CFR §75.1720. Webster County Coal Corp.,
supra. See also Rushton Mining Co., supra. The present case presents
no occasion to determine whether we agree with the Board's interpretation of 30 CFR §75.1720.
!:±../ Section 109(a)(l) of the 1969 Act provided:
The operator of a coal mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision
of this Act, except the provisions of title 4, shall be assessed a
civil penalty by the Secretary under paragraph (3) of this subsection which penalty shall not be more than $10,000 for each such
violation. Each occurrence of a violation of a mandatory health or
safety standard may constitute a separate offense. In determining
the amount of the penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and
the demonstrated good faith of the operator charged in attempting
to achieve rapid compliance after notification of a violation.
(Emphasis added.)
2/

3!

1307

)

Accordingly, the judge's decision is affirmed.

~QJrJW~,QQ1]wau
~
Marian Pearlman Nease, Commissioner

1308

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

September 21, 1979
Docket No,
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.

CLIMAX MOLYBDENUM COMPANY
a division of AMAX INC.
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

DENV 79-3-M
DENV 79-4-M
DENV 79-5-M
DENV 79-6-M
DENV 79-7-M
DENV 79-8-M
DENV 79-9-M
DENV 79-10-M
DENV 79-11-M
DENV 79-12-M
DENV 79-13-M

DECISION
These proceedings arose from applications filed by Climax
Molybdenum Company (Climax) for review of citations issued for alleged
violations of 30 CFR 57.5-5, pertaining to dust exposure. On
November 9, 1978, the administrative law judge issued an order to Climax
to "provide information and clarification" concerning its applications
for review. Climax was ordered to: (1) provide legible copies of the
citations; (2) advise the judge whether the citations had been abated;
and (3) inform the judge whether it was seeking relief by way of a
review on the merits of abated citations. The order specified no date
for reply.
On January 10, 1979, the judge dismissed the applications for
review for Climax's failure to comply with his November 9th order.
As of that date, 62 days after the judge issued his order, Climax
had not responded in any manner to the judge. On January 11, 1979,
before learning of the judge's dismissal, Climax complied with the
judge's order. In addition, Climax also filed a motion and brief
requesting the judge to rule on the question of "immediate" review of
unabated citations or to certify the issue for interlocutory review to
the Commission. On February 21, the Commission granted Climax's
petition for discretionary review of the judge's order of dismissal.
On review, Climax argues that the judge's dismissal of its applications for review was an abuse of discretion. Climax emphasizes the
absence in the order of a time limit for response, that it did comply
with the order (albeit one day after the judge's dismissal order), that
its time for response was reasonable in light of the complex brief it
also filed on the issue of immediate review, that dismissing the cases
was a disproportionate reaction to the facts, and that the judge elevated
the need for a prompt determination of the issues over the need for a
just determination.

1309

79-9-12

We are not impressed with Climax's assertions that its delay in
response was, in part, necessitated by its efforts to brief the jurisdictional questions presented by its applications. The judge's order
requested information and clarification; it did not request nor require
an extensive brief.
However, an order which lacks a date for response gives no guidance
to its recipients for the timing of their compliance and it thereby
promotes controversies such as the one before us. Because the lack of a
date certain for compliance may have significantly contributed to
Climax's lack of prompt response to the judge's order, we find that the
dismissal of these applications for review in this instance was an
unduly harsh sanction and therefore an abuse of the judge's discretion. 1/
Accordingly, the decision of the judge is reversed and the cases are
remanded for further proceedings consistent with this decision.

~,£~

Je~aldie, Chairman

!~1~::;~

Marian Pearlman Nease, Commissioner

/

];./
At the time in question, the Commission's interim procedural rules
did not require the judge to issue a show cause order prior to dismissing
a case seeking review of a citation or withdrawal order for failure to
comply with a prehearing order of the judge. The Commission's permanent
procedural rules do provide for a prior show cause proceeding. See 44
Fed. Reg. 38,232 (1979) (to be codified in 29 CFR §2700.63). Thus, in
future cases, an opportunity for presentation and consideration of
misunderstandings such as this one is available.

1310

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

September 21, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket Nos.

PITT 78-127
PITT 78-128
PITT 78-301-P
PITT 78-302-P

and
UNITED MINE WORKERS OF AMERICA,
(UMWA),

v.
CANTERBURY CGAL COMPANY
DECISION
These cases arise under the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. §801 et ~· (1976) (amended 1977). On January 2,
1979, the Commission granted petitions for discretionary review filed by
the United Mine Workers of America (Union) and the Secretary of Labor.
For the reasons that follow, we reverse the judge's decision and remand
for a hearing de nova before a different administrative law judge.
In this proceeding petitions for assessment of civil penalty filed
by the Secretary were consolidated with applications for review filed by
Canterbury. Procedurally, all of these cases were affected by the
judge's disposition of a notice of violation issued to Canterbury on
September 23, 1977, under section 104(c) of the Act. 1./ This notice,

1./

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

79-9-10
1311

which concerns a "cutter" or a tear in the roof of an underground mine,
provided the basis for the issuance of two subsequent section 104(c)
withdrawal orders, ±./ concerning alleged violations related to pillar
recovery and coal accumulations.
Canterbury filed a motion for summary disposition regarding the
104(c) withdrawal orders. In the motion Canterbury argued, among other
things, that the underlying cutter notice was invalid. The administrative law judge denied the motion without prejudice to renew, and
ordered the Secretary and Union to present their evidence regarding the
underlying cutter notice. The Secretary and Union then presented that
evidence at a hearing. At the conclusion of their presentation the
judge grante.d a motion by Canterbury for dismissal of the cutter notice
for failure to make a prima facie case. ll The judge's decision from
the bench was reduced to writing on April 21, 1978.
The issues raised by the petitions for discretionary review focus
almost exclusively on the judge's conduct of the hearing on the cutter
notice. On review the Secretary and Union argue that they were denied
a fair hearing on that issue because the judge "took the case away from
counsel by the frequency and timing of his questions."
At the outset, we acknowledge the considerable leeway afforded
administrative law judges in regulating the course of a hearing and in
developing a complete and adequate record~ The Manual for Administrative
Law Judges, published by the Administrative Conference of the United
States, states:
The Judge may question the witness initially if it is likely to
forestall extensive examination by others. He should interrupt
when the witness and counsel are at cross purposes, when the record
may not reflect with clarity what the witness intends to convey, or
when for some other reason assistance is needed to assure orderly
development of the subject matter. At the close of cross or
direct, the Judge may question the witness to clarify any confusion
or ambiguous testimony or to develop additional facts. !i_/
fn. !/ cont'd
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, ••• 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/
The cutter notice is the sub.:ittct of PITT 78-301-P; the withdrawal
orders are the subject of PITT 78-302-P, PITT 78-127 and 128.
ll In addition, the alleged pillar recovery violation was dismissed on
the ground that no triable issue of fact was shown to exist and that
Canterbury was entitled to summary disposition as a matter of law.
!i_I
Ruhlen, Manual for Administrative Law Judges, at 35 (1974).

1312

See also 2 Davis, Administrative Law §10.02, at 8-9 (1958). "But an
examiner should avoid encroaching on the domain of counsel ••.• Excessive or improper participation of examiners may, of course, amount to
denial of fair hearing." Id. at 9. See also Cupples Co. Mfrs. v. NLRB,
106 F.2d 100, 113 (8th Cir-:-1939).
In the present case, the inherent authority of judges to participate in hearings is not in question. Rather, the Secretary and Union
~argue that the judge interjected himself into the cutter notice proceedings so often and so extensively that they were denied the
opportunity to develop their case. We agree. A reading of the entire
record establishes that the judge's questioning encroached on the domain
of counsel; he did not permit the parties ~n opportunity to develop
their evidence in their own way. By numerous interruptions and
questions, the judge dominated the examination of every witness. See
Modern Methods, Inc. 12 Ad.L. Dec.2d 57, 60 (FTC, 1962); Better
Monkey Grip Co., 5 Ad.L. Dec. 2d 452 (NLRB, 1955).
The record reflects that the judge rarely waited until the close
of direct or cross examination before he questioned witnesses. A clear
example of the judge's overzealous participation took place during
the Secretary's attempt to question his chief witness, Inspector
McNece. The record reflects the following pattern of questioning:
QUESTIONER

NUMBER OF QUESTIONS

Secretary . ........................ . 1
Court . ..................... ·............. 5
Secretary . ....... ~ ................. .1
Court ................................... 1

Secretary .••••••.••••••.•.•..••.••• l
Court . ............................... . 125
Secretary . ......................... 6
Court . ................................. 20
Secretary . ......................... 2
Court . ................................. 64
Secretary .. ....................... . 1
Court . ................................ . 16

1

(Tr. 181-234).
This pattern of unbalanced questioning continued throughout the
entire hearing. It is also difficult to characterize the judge's
questions as an effort to clarify the record. Rather, we find the judge
attempted to develop the evidence ·~{Il his own, and that his intrusive
questioning hindered rather than advanced the development of a complete
record. The extensive number of questions asked by the judge further
reflects his undue interference in the proceedings. Although we do not.
profess to establish numerical guidelines, the record reflects that the
judge asked 970 questions while the attorneys for the Secretary, Union,
and Canterbury asked a combined total of only 334. The claim that the
judge "took the case away from counsel" is amply demonstrated by the
record.

1313

For these reasons, we find that the judge's conduct during the
course of the hearing on the cutter notice constituted an abuse of his
discretion. In making this finding, we have relied on the entire
record, which discloses a lack of proper judicial restraint by the
administrative law judge. The effect was to substantially hinder the
parties in the presentation of their evidence and deny them their right
to a fair and impartial hearing. ~ Accordingly, we vacate the decision
of the judge and remand the case for assignment by the Chief Administrative Law Judge for a de nova hearing before a different administrative law judge. !!_/
In vacating the decision of the judge, we have by necessity vacated
all findings made by the judge, including those involving the credibility of witnesses, conduct of counsel, and the summary disposition of
the alleged pillar recovery violation. As to the latter, we note that
the record reflects that a genuine issue of material fact was raised in
the affidavits concerning the mining sequence and its conformance to the
roof control plan during the pillar recovery operations. Under these
circumstances, summary disposition was not proper. United States v.
Diebold, 369 U.S. 654, 655 (1962). J.}

Frank' F~ ,Jestrab'·/t.3'mniissioner
·.,

\~

\.

,I

-~.

f.~

!_.,"'-' •

~·

/,.I/

/

/,.·

'

7
'
,'
~
'

.

•

_....,,..; 'f.:. l .....::l-:tL
· •' ..-

A. E. Lawson, Gommissioner

·~\\0J.JLuJ~~\~\\~JH) '\\1uR

Marian Pearlman Nease, Connnissioner

5/

See 5 U.S.C. §556(b) and (d).
See Nicodemus v. Chrysler Cor.E_., 596 F.2d 152 (6th Cir. 1979);
Reserve Mining Co., v. Lord, 529 f~2d 181 (8th Cir. 1976);
United States·ex rel. Wilson v. Coughlin, 422 F.2d 100, 110 (7th Cir.
1973); and In re United States, 286 F.2d 556, 565 (1st Cir. 1961).
II
In light of our disposition, it is unnecessary to reach the
other issues and arguments raised by the parties.

E_/

1314

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

20006

September 28, 1979
Docket No. HOPE 77-193

LOCAL UNION NO. 3453, DISTRICT 17,
UNITED HINE WORKERS OF AMERICA

IBMA No. 78-7
v.
KANAWHA COAL COMPANY
ORDER
On September 14, 1979, Kanawha Coal Company filed a petition for
reconsideration of the Commission's decision issued on September 4.
Kanawha seeks reconsideration of one issue raised in its appeal and
purportedly not resolved properly by the Commission's decision. For the
reasons that follow, we deny the petition.
Kanawha submits that the Commission's decision does not properly
resolve whether the administrative law judge erred in finding that
certain miners were idled by a withdrawal order issued to Kanawha and
entitled to four hours compensation under section llO(a) l/ of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §801 et~
(1976~ (amended 1977).
Kanawha argues that the Commission erred in
affirming the judge's decision because the involved miners were not
idled by the withdrawal order, but by their refusal to accept Kanawha's
off er of four hours alternative work during the first half of their
shift.
The interpretation of section llO(a) by the Commission in Youngstown
Mines Corp., No. HOPE 76-231 (August 15, 1979), requires the award of
compensation in the circumstances here. In Youngstown, the Commission
awarded four hours compensation to miners who accepted and performed
four hours of alternative work during the first half of their shift and

..

1./

Section llO(a) of the Act, in pertinent part, provided:
If a coal mine or area of a coal mine is closed by an order
issued under section 104 of this title, all miners working during
the shift when such order was issued who are idled by such order
shall be entitled to full compensation by the operator at their
regular rates of pay for the period they are idled, but for not
more than the balance of the shift. If such order is not terminated prior to the next working shift, all miners on that shift
who are idled by such order shall be entitled to full compensation
by the operator at their regular rates of pay for the period they
are idled, but for not more than four hours of such shift ••••
[Emphasis added.]

79-9-17
1315

were then sent home. The Commission found that "[b]ut for the withdrawal
order, the miners would have worked and received compensation for the
final [four] hours of their shiftn. Here, even if the miners had accepted
alternative work for the first four hours of their shift, alternative
work was not available for the final four hours. Therefore, the miners
were idled by the withdrawal order during the second half of their shift
and are due compensation for this period under section llO(a). Youngstown
Mines Corp. This case does not present the issue of whether miners who
refuse an offer of eight hours of alternative work are entitled to compensation under section llO(a). Therefore, we need not embrace the judge's
reasoning to the extent that his decision can be read to award compensation because miners were unable to perform their "regular duties" or
"specific jobs".
Accordingly, the petition for reconsideration is denied.

~e~
Waldi~,
./

/

Chairman

~

Marianf PearJ'.man Nease, Commissioner
i

I

~)

1316

Administrative Law Judge Decisions
September 1, 1979 - September 30, 1979

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISS50N
.

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

SEF 4

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

Civil Penalty Proceeding
Docket No. BARB 78-652-P
A.C. No. Ol-00758-02023V

v.
No. 3 Mine
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., 9ffice of the Solicitor, U.S.
Department of Labor, for Petitioner;
Robert W. Pollard, Esq., Birmingham, A~abama, for
Respondent.

Befo:i:e:

Administrative Law Judge Michels

This is a civil penalty proceeding brought under section llO(a)
of the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c.
§ 820(a).
The petition for assessment of civil penalty was filed by
the Mine Safety and Health Administration (MSHA) on August 24, 1978,
alleging a violation of 30 CFR 75 .1L~03. Respondent answered on
September 13, 1978, and denied that the alleged violation occurred.
A hearing was held on May 3, 1979, in Birmingham, Alabama, at which
both parties were represented by counsel. Posthearing briefs and proposed findings and conclusions have been filed. The proposed findings
which have not been adopted herein are rejected as immaterial or not
supported by fact.!/
Statement of the Case
The facts in this proceeding are not in serious dispute. The
principal issue is whether Respondent was properly charged under the
"safeguard" provisions of the regulations. A safeguard notice is
isst.ied by an inspector where he believes a transportation hazard
exists which is not covered by published standards. Thereafter, the
safeguard becomes, in effect, a mandatory standard applicable only to

1/ Respondent's exhibits are identified with a capital "R" and a
number· MSHA's with a "G" and a number.
'

1 ~17

the mine cited. In this case, the min·e was originally placed under
a safeguard notice for the failure to bave a derail or stop block
"near" the mine shaft. The safeguard notice.was issued and then was
abated by the placement of a derail 71 feet from the collar at the
top of the mine shaft. Two and one-half years later, another inspector
observed a rail car between the derail, which was still in place,
though inoperative, and the mine shaft. Thereupon, this second
inspector cited Respondent for a violation of 30 CFR 75.1403 alleging
that the safeguard notice was not complied with because a flat car
was left unattended without a derail, stop blqck or dead man which
would have prevented the car from falling into the shaft bottom.
ISSUES
The issues, as the Respondent has appropriately phrased them,
are as follows:

1. Does 30 CFR 75.1403 have any application to the surface work
areas of an underground mine?
2. If 30 CFR 75.1403 does apply to the surface work areas of
an underground mine, does the fact that a loaded supply car parked
between a derail, required by a previously-issued Notice to Prc"1ide
Safeguards, and the collar of a mine shaft constitute a violation
of the previously-issued Notice to Provide Safeguards, which only
required that a derail be installed on the track leading to the mine
shaft?
FINDINGS OF FACl
Respondent's No. 3 Mine is an underground coal mine located in
Jefferson County, Alabama (Tr. 21). A supply yard is located on the
surface of this underground facility. Within the confines of the
supply yard and running for approximately 200 feet along the surface
is a rail track (Tr. 76). This track travels through the yard up to
the collar of the shaft. It goes over fairly level ground for the
first 100 feet and then for the remainder of the stretch runs up a
slight incline towards the shaft (Tr. 72-74, 77). Its purpose is to
serve as a means upon which men and supplies can be transported in
cars to the mine shaft for entry into the mine. A tow motor or
forklift is used to move these supply cars along the entire length of
th~ track to the shaft. A gate is located at the end of the track in
front of the shaft which is equipped with certain protective devices
(Tr. 84, 86-87). Upon the cars reaching this point, the gate is
opened and they are then loaded into an elevator and taken from the
surface down through the shaft into the mine (Tr. 9-10). The shaft
is approximately 1,300 feet deep (Tr. 9, 48).
l'he following references to the testimony are virtually undisputed with some exceptions which are noted.

1318

Petitioner's first witness, MSHA Inspector Harlan Blanton, testified that he issued the underlying safeguard notice while he was conducting a spot inspection·at Respondent's No. 3 Mine on January 9,
1975 (Tr. 7-8). 2/ During this inspection, he observed a supply car
located on the surface track just outby the manshaft where supplies
and men are transported to the underground section of the mine (Tr.
8). Normally, these cars go the entire length of the track along the
surface until they come to the collar (Tr. 21). Such cars are lowered
into an elevator at the manshaft and then lowered into the mine or
later hoisted out (Tr. 9-10). Cars go directly from the track into
the shaft. Inspector Blanton estimated the shaft is approximately
1,300 feet deep (Tr. 9). Petitioner's second witness, Inspector
Whalen, also stated the shaft was 1,300 feet deep (Tr. 48).
Inspector Blanton examined both the supply car and the track
it waB located upon and he testified that the car was located in the
neighborhood of 50 to 100 feet from the collar of the mine shaft (Tr.
10). He thought it was a regular mine supply car, but he could not
recall whether it was loaded or empty. He described the car as being
"unattended" and he defined this term to mean not hooked or secured
to some other machine, such as a locomotive (Tr. 22-23) (this is not
consistent with Inspector Whalen's definition of the term referred to
below). The inspector testified that when he observed the car, a
Mr. Griffin, whom he identified as Respondent's safety director, and
Mr. Wayne Kirtz, the chairman of the safety committee, were present.
Inspector Blanton asked if there was a derail to keep the car from
"accidentally being pushed into the mine or rolling into the mine"
(Tr. 11). Thereupon, he and the other members of the group looked
up and down the track, but their search did not uncover a derail.
After determining that a derail was not present on this stretch of
surface track and after concluding that such a safety device was
necessary, the inspector issued Safeguard No"tice No. 1 HEB pursuant
to section 314(b) of the Federal Coal Mine Health and Safety Act of
1969. 3/ This safeguard notice states: "The track on the surface to
the manshaft was not provided with stop blocks or .derails. Positive
stop blocks or derails should be installed on the track near the
manshaft. Served to J. M. Griffin, safety director at the mine
office at 9:30 a.m. January 9, 1975" (Exh. G-1). The inspector
cla~med that he explained to the company's safety director and the
chairman of the safety committee the need for such a safety device
and they immediately began preparations to install a derail on the
track. Inspector Blanton described what this derail was:
2/ Mr. Blanton has been an MSHA inspector since approximately 1970.
He has approximately 16 years' experience in the industry and holds
foreman papers issued by the State of Alabama.
3/ This section remains unchanged as section 314(b) of the Federal
Mine Safety and Health Act of 1977.

1319

·In this case, they undone a joint in the track and put
a piece of rcil that would open up the track in case a car
started to down the track it would derail the car and
wouldn't let it proceed on the rail. ·It would throw it
off the rail onto the ground. And that way, "it wouldn't
roll on down into the shaft.
(Tr. ll).
Inspector Blanton recalled that this derail was installed within
50 or 75 feet of the collar of the shaft. He did not tell the
Respondent where to put this device; however, once it was installed,
he did approve the derail and its location as he thought it was a
sufficient distance from the collar to prevent a car from going into
the shaft (Tr. 16-17, 22). He te~tified that this derail would be
left open when cars were on the track and these cars would have to be
located outby the derail if they were unattended (Tr. 12). The
inspector indicated his belief that if cars were located inby the
derail--towards the shaft--the derail was ineffective for its purpose
of preventing cars from falling, accidentally or otherwise, into the
shaft (Tr. 13).
On cross-examination, Inspector Blanton stated that he did not
write on the safeguard notice anything about where or where not the
Respondent was to park supply cars (Tr. 13-14). However, he did specifically testify that he told Mr. Griffin, the Respondent's safety
director, that it would no longer be allowable for Respondent to park
supply cars between or inby the derail and the shaft (Tr. 14-15)~
Respondent's witness, Mr. Burchfield, who is the maintenance superintendent at the No. 3 Mine, indicated he was aware of the purpose of
the derail although he denied he knew that such parking of cars would
be a violation.
Inspector Blanton emphasized that the purpose of this safety
mechanism was to "throw the car off the track to keep it from going
down the shaft" (Tr. 15, 21). He gave his opinion that pc:.rking a
supply car between the derail and the shaft was in disregard of the
derail altogether. He indicated his belief that cars located inby
the derail could be accidentally bumped or knocked into the shaft by
the tractors, trucks, and locomotives which were around it (Tr. 20).
The inspector did not consider such an occurrence to be a remote
possibility.
Inspector Blanton further testified that there was a gate at the
end of the track in front of the shaft which was the entire·width of
the shaft (Tr. 17). He could not tell by observation that the track
was on an uphill incline (Tr. 18). He testified that locomotives
and diesel-powered tractors pushed the cars and he thought it possible that they could be pushed by manpower.

1320

Petitioner's second witness, MSl~ Inspector Clarence E. m1alen,
testified that he issued the notice of violation while he was making
a spot inspection on September 13, 1977, at the No. 3 Mine. 4/ He
had been to the mine at different times before. When he issued this
notice, he was in the company of Mr. Bobby Taylor, who he identified
as the safety director at the No. 3 Mine (Tr. 28-29). Inspector
Whalen was going to go underground to observe the perimeter of the
shaft. For several minutes, he and Mr. Taylor waited for the return
to the surface of the cage. While waiting, he looked across the
shaft and observed the track and car in question (Tr. 29).
Inspector Whalen knew from his previous inspections at the No. 3
Mine that there was a derail on this track. Also, from observing the
position of the flat car, he determined that the car was loaded with
material and located inby the track (Tr. 29-30, 65). He did not measure the distance, but estimated that the loaded car was within 30 to
35 feet from the entrance to the shaft. After observing this condition, he issued a notice of violation to Respondent which descibes
the condition or practice which constitutes the alleged violation as
follows:
The operator was not complying with a previously issued
safeguard (No. 1, H.E.B. 75.1403, 1-9-75) at the entrance
td the service shaft hoist way-east side -- in that a flat
car loaded with material was left unattended, without a
derail, stop block, or dead man that would have prevented
such flat car from falling into the shaft bottom as the
service shaft conveyance was in the bottom.
(Tr. 28, Exh. G-3).
Inspector 'Whalen told Mr. Taylor that the derail would have to
be put back in operation. Thereupon, Mr. Taylor notified Mr. James
Burchfield, Respondent's maintenance supervisor. Mr. Burchfield
directed some workers to move the loaded car outby the derail. Over
a 30- to 40-minute period, the workers proceeded with picks and
shovels to make the derail operative (Tr. 31).
The inspector testified that the car was left unattended; there
were no automatic brakes or braking devices on it (Tr. 32). He
thought the condition was dangerous, stating:
A runaway car in addition to the car being unattended
there was a road -- material road -- vehicles of the
yard travelled between the derail and the entrance to the
4/ Mr. Whalen has been an MSHA inspector since October 1, 1971. He
has State of Alabama mine foreman certification and had 16 years' of
industry experience before joining MSHA.

1321

shaft at this particular location there. They could have
-- hypothetically speaking, anything movable could have
come along and bumped it.
(Tr. 32).
Also, he stated that this service shaft is the only one way out
of the mine and the substructure on top of the man conveyance would
not withstand the impact of a falling car or object into it (Tr.
34-35).
Inspector Whalen testified that tow motors are used to move
these supply cars on the track (Tr. 40). He stated that the car he
had observed was heavy and substantially loaded. He thought that
perhaps half a dozen men would be necessary to push the car. By
looking at the track which runs toward the service shaft, he determined that it runs uphill to some degree (Tr. 41). However, the
inspector discounted this by ieiterating that with motor cars it
could still be shoved over the hill.
Inspector Whalen further testified that he was aware of the existence of the safeguard notice issued by Inspector Blanton since the
MSHA office has a posting board on which, among other things, a~~e
posted all safeguards which are outstanding at a mine (Tr. 41).
Although he was aware of the existence of the safeguard notice and
that the Respondent had been required to install a derail, he testified that he had never read the original safeguard notice before he
wrote the notice of violation (Tr. 42).
On cross-examination, this inspector agreed that the derail was
present, however, he determined that the Respondent was not complying
with it since the derail was inoperative. He did not know,when he
wrote the notice of violation, whether the safeguard notice contained
wording which would prohibit the parking of cars at specific places
along the track (Tr. 43).
.
Inspector Whalen did not issue a safeguard notice for the condition he had observed, as it was his view that a safeguard notice had
already been issued for the same track (Tr. 46). Although Inspector
Whalen observed that the derail was not in operating condition, he
did not cite Respondent for this fact. Rather, he made a determination that the positioning of a car beyond the derail was in disregard
of the purpose of that safety device. He thought that the sole purpose of the derail was to prevent runaway cars (Tr. 52-53). It was
his opinion that if a car was placed inby the derail, there was no
way that it could be effecting its purpose (Tr. 54).
Inspector Whalen testified that the car he saw did not have a
braking system. It was stationary when he made his observation and
he agreed that nothing was blocking the car. Also, this inspector

1322

testified that the car was not spragged and was unattended. He
defined "spragged" as the process of taking either a metal or wooden
object and inserting it between the spokes of a moving car. The
inserted object will then lock the wheel and slide it (Tr. 62). By
"unattended," he meant that no workers were present at the time he
made his observation (Tr. 62). This is a different definition than
that of Mr. Blanton. This inspector thought it was important for a
person to be present in order to sprag the car.
Respondent's first witness, Mark P. Hinton, a resident engineer
at the No. 3 Mine, testified that he and one other person made a
survey of the track leading from the supply yard to the service shaft.
Mr. Hinton found the distance from the shaft to the derail to be
71 feet and 1 inch. The elevation drop between the shaft and the
point of the derail was 88 feet. He stated that he measu£ed a
1.23-percent downhill grade away from the shaft. Mr. Hinton thought
this grade was significant in that cars would not roll up hill with
ease. He did not consider this to be a steep grade (Tr. 72-74).
Respondent's second witness was James Burchfield. Mr. Burchfield
was the maintenance superintendent at Respondent's No. 3 Mine when
the notice of violation was issued. He testified that Bobby Taylor,
the safety director, told him of the inspection which Inspector Whalen
was undertaking and he joined the group when they were investigating
the derail (Tr. 75).
Mr. Burchfield described how the derail was inoperative at the
time of Mr. Whalen's inspection and he estimated that it took the men
10 to 15 minutes to make the switch operative. Mr. Burchfield said
that tow motors are used to move the supply cars around. He stated
that the first 100 feet of the supply yard is not level and there is
an incline to the shaft. He did not think that there would be any
runaway cars at this point (Tr. 77, 87). He said that there would
have to be some sort of vehicle ramming. He explained this by saying
that someone would have to be pushing another supply car with a tow
motor before there could be a runaway car. He agreed that it takes
tremendous force to move such a car, even when empty. Additionally,
Mr. Burchfield testified that two employees are within 50 to 75 feet
of the shaft at all times (Tr. 78).
He showed that they have now moved the derail closer to the shaft
(Tr. 80). It has been placed 17 to 18 feet from the gate at the shaft
entrance. The cage is 9 feet, 6 inches and the gate swings out
roughly 14 feet over the track (Tr. 80). The derail is tied in automatically with the hoist by pneumatic air (Tr. 79(b)). 2/
5/ Because there are two page 79's in the transcript, one is designated. 79(a) and the other 79(b).

1323

Mr. Burchfield has testified that he was aware of the safeguard
notice and its wording (Tr. 81). However, he claimed he did not have
any idea that parking a car between the derail ind the shaft would
be a violation (Tr, 81), The car so parked was 13 inches high and
approximately 19 feet long. It was loaded with cinder blocks and was
clearly visible to those in the supply yard (Tr, 82). Mr. Burchfield
thought'any ramming would have to be deliberate. Tow motors will
travel at 5 miles per hour. If such an act were to occur,
Mr. Burchfield could only foresee danger to the cage and hoist; the
miners would be inside the mine (Tr, 84), Mr, Burchfield was not
unaware of the purpose of the derail (Tr. 85).
DISCUSSION AND CONCLUSIONS

I,
The first issue~ as phrased above, is whether 30 CFR 75 .1L}03
has any application to the surface work areas of an underground mine.
Respondent argues that Part 75 of Title 30 CFR, which is entitled
11
Mandatory Safety Standards-Underground Coal Mines" is applicable
only to conditions in the underground portion of underground mines.
It argues that only in a few places do these regulations effect the
surface operations and that in these it is plainly stated within the
regulation that its application is to the surface area of the mine
and that section 75.1403 makes no such statement. Finally, it contends that Part 77 of Title 30 CFR, which covers surface mines and
surface work areas of underground mines, should properly govern this
condition which the evidence shows occurred in a surface area.
MSHA contends that the scope of Part 75, as set forth in 30 CFR
75.1, is stated as including ''some standards are also applicable
to surface operations." MSHA makes no attempt to to specify which
of the standards are so applicable, how this is to be determined
and, finally, whether the specific standard here involved, 30 CFR
75,1403, is one that is intended to be applicable to surface areas
of underground mines.
A review of the mandatory standards set forth in Part 75 reveals
that some are made specifically applicable to the surface areas of
underground mines, For instance, 75,705 states specifically that it
is applicable "both on the surface and underground.'' This also is a
statutory provision. · Other standards also mention activity which is
to be conducted on the surface, such as 75,1200, which relates to the
keeping of maps; 75.1708, which refers to the fire-proofing of surfacE
structures and is also a statutory provision; and 75,1808, which
relates to the maintenance of books and records on the surface. 6/

6/ Other sections in Part 75 which encompass surface areas include
75,300-2, 75.1702, 75.1712, 75.1600 and 75,1806,

1324

Thus, it is clearly apparent that certain provisions in Part 75,
even though it relates primarily to conditions within underground
mines, also cover some surface conditions relating t6 underground
mines. Furthermore, some of these are statutory provisions. These
provisions are applicable to surface areas of underground mines even
though Part 77 of the standards are specifically mandatory standards
for surface coal mines and surface work areas of underground coal
mines.
The sole remair11.ng question, therefore, on this issue is whether
75.1403 and its subparts are applicable to the surface areas of
underground mines. The test that I would apply is either (a) that
the standard itself expressly states that it is applicable to surface
areas, or (b) that it is clear from its language that it is applicable
to both underground and aboveground. As to the former, examples are
those cited above. The latter would be found mainly in subpart (0)
which refers to hoisting and mantrips.
For example, 75. lL~OO in subpart (0) is a statutory provision
covering hoisting equipment used to transport persons at a coal mine.
Such hoists, especially when used to transport men into and out.of
the mines, will come to the surfac2 or may even be controlled from
the surface. Thus, even though the standard does not expressly refer
to the surface, it is clear that the surface of the underground mine
is involved. This also would be true with 75.1402, which relates to
communications.
Section 75.1403, referring to "other safeguards," is likewise in
such a category, at least as it has been interpreted in the subsection's designated criteria. The "other safeguards" are those which
may be applied on a mine-by-mine basis "to minimize hazards with
respect to transportation of men and materials." As specifically
define.cl in the criteria, "other safeguards" may include and do
include, conditions having to do with hoist-transporting materials,
automatic elevators, belt conveyors, mantrips, and track taulage
roads. Some of these may not and probably do not concern the surface
areas of underground mines. Others, however, do concern such areas
either specifically or because of their obvious application to the
surface areas. An example of crit.eria applying to the surface,
though not specifically so stating, would be 75.1403-11 covering
safety gates for the entrances to shafts. Others have more express
application to the surface, such as 75.1403-3(f), which requires
that an attendant be on duty at the surface where men are being
hoisted or lowered. Section 75.1403-S(e) which is closely related
to the subject matter of this case is also in the explicit category.
It is a criterion which states that "[p]ositive stop blocks or
derails should be installed on all tracks near the top or at the
landings of shafts, slopes, and surface inclines." Thus, the scope
of safeguards, as indicated by the criteria, is sufficiently broad
to cover stop blocks or derails in surface areas.

1325

While I do not hold that 75.1403, which provides for safeguards
with resp~ct to the transportation of men and materials, can be read
to mean that a safeguard may be written for any condition at the
surface of an underground mine, I believe it is clear that it applies
to at least some surface conditions and specifically, to the condition of installing derails or stop blocks at tracks near the top.
Accordingly, I hold as to this issue that 75.1403 does have
application to surface work areas of an underground mine and,in particular, to the condition which is the subject of this proceeding.
II.

The second question is whether if 75.1403 applies to surface work
areas, does the fact that a loaded supply car was parked between the
derail and the collar of the mine shaft constitute a violation of the
safeguard notice which requires only that a derail be installed on the
track leading to the mine shaft?
This question was raised repeatedly in the proceeding, twice in
motions for summary judgment, and once in a motion to· dismiss at the
close of MS'HA's case-in-chief. These motions were all denied. Now
havin6 had the opportunity to study the issue in light of the fu11
and complete record, I have reached the conclusion that Respondent's
position is correct and that the notice of violation should be
vacated and the petition for civil penalty be dismissed.
The safeguard notice, as previously noted, issued by Inspector
Blanton on January 9,- 1975, provided that positive stop blocks or
derails should be installed on the track near the manshaft. Inspector Blanton appeared to be guided by the specific criteria, 30 CFR
75.1403-8(e), but he claimed that he had issued the notice on the
authority of section 314(b) of the Federal Coal Mine Health and Safety
Act of 1969. A derail was thereafter placed on the track approximately 70 feet from the collar of the shaft and this was approved by
the inspector for abatement.
Subsequently, about 2-1/2 years later, another inspector,
Clarence E. Whalen, inspected the same site and issued a notice of
viol~tion for failure to comply with the safeguard notice, specifically because a flat car was left unattended without a derail, stop
block or dead man that would have prevented such car· from falling
into the shaft bottom.
Among the facts as disclosed and not in serious dispute are
that the derail, which was originally installed to abate the safeguard notice, was still in place at the time of the second inspection, that it was inoperative because it was filled with dirt, and
that the inspector did not cite the ineffective condition as a violation of the safeguard notice. The derail in question was 71 feet

1326

from the collar of the shaft and was in the location which had been
approved by th•~ first inspector, Mr. Blanton. The latter. had not only
approved of tt· · location, but he believed it to be correct on the
theory that if • :·e derail ·was too close to the shaft and a car was
bumped, it would go down into the shaft (Tr. 16, 22). Mr. Whalen, the
second inspector who issued the notice of violation, disagreed with
Mr. Blanton on this matter of the distance. He testified that had he
issued the safeguard notice, he would have required the operator to
put the derail as close to the shaft as possible (Tr. 50).
This matter of disagreement over the location of the derail 1s
an important consideration in the decision in this case. It shows, I
believe, that Inspector Whalen was not particu~arly concerned with
whether the derail, as originally required, was in place and maintained; rather, his concern was with an unattended car standing on the
track without the protection of a derail between it and the shaft. As
his testimony so clearly indicates, he believed the latter to be the
purpose of the safeguard notice. The difficulty is, as I see it, that
the safeguard notice does not cove~ the condition of an unattended
car which is not protected from rolling by either stop blocks or
derails. It does not in fact state the purpose which Inspector ·whalen
read into it. 21
By way of background, it is helpful to consider that notices to
provide safeguards under the Mine Act are procedurally unusual. I am
not aware that the Board of Mine Operations Appeals or the Commission
has dealt with this subject in any depth, if at all. Prior rulings by
other administrative law judges appear to point out the uncertainties
in this area leading to apparent inconsistent results. Compare the
decision of Judge Richard Steffey in Oakwood Red Ash CoalCOrporation,
Docket No. NORT 75-261-P (January 26, 1976), with the decision of
Judge George Koutras in Jim Walter Resources, Inc., Docket No.
BARB 77-103-P (July 5, 1977).
The statutory provision has been promulgated into 30 CFR 75.1403.
This provision permit·s an inspector to write what is in effect a
mandatory standard with 'respect to transportation applicable only to
a particular mine. Under section 75.1403-1, the general criteria for
7/ It appears to me that the inspector, rather than issuing a notice
of violation of a prior safeguard notice, had other.options. He could
have either (a) issued another safeguard notice specifically covering
the condition found to be a hazard, or (b) issued a notice of violation under 30 CFR 77.1605(p) which also appears to be applicable to
this condition. Part 77 of the standards cover surface mines and
surface areas of underground mines. Section 77.1605(p) provides that
''[p]osi: ~ve-acting stop-blocks, derail devices, track skates, or other
adequate means shall be installed wherever necessary to protect persons from runaway or moving railroad equipment."

1327

safeguard~ are set forth in subsection (a).
This subsection states
that 75.1403-2 through 11 set out the criteria by which an authorized
representative of the Secretary will be guided in requiring safeguards
and it also mentions that other safeguards may be required. Subsection (b) of 75 .1403-1 details the procedure to be followed in
enforcing this mandatory standard.

Because a safeguard notice, which for the particular mine in
effect becomes a mandatory standard, it seems obvious that it should
be written precisely and exactly so that there will be no question
about the performance required by the operator. In this case, precision does not seem to be a problem except as. the second inspector
construed the notice. On its face, the notice clearly requires what
the first inspector intended, that is) a derail or stop block be
installed "near" the manshaft. 11 Near 11 is a relative term and the
inspector by approving a derail at 71 feet, in effect, construed his
own notice as requiring a derail at that distance. A derail was so
installed. However, the second inspector now has interpreted the
safeguard notice as encompassing a condition not expressly set forth
in the terms of such notice, but included within what he deemed to
be the purpose.
Part of the difficulty is that the first inspector apparently
failed to take into account the possibility that a car could be placed
between the derail and the shaft collar because of the large distance
permitted between the derail and the shaft. It seems fairly clear
that the purpose of the derail was to prevent a car from accidentally
falling into the shaft and Respondent's maintenance superintendent
recognized that to be the purpose. The safeguard notice, however, by
its terms, does not apply to stop blocks or derails for cars. It
applie.s only to a .derail for the track, which derail was installed
and approved and further was in place on the day the notice of violation was written. Inspector Blanton, had he so intended, could have
.originally written or have amended his notice to provide a safeguard
not permitting a car between the derail and the shaft collar. The
safeguard notice was not so written, however, and therefore lacks
sufficient specificity to cover the condition which the subsequent
inspector found to be a hazard. It is not enough, it seems to me
that the purpose was violated if that purpose is not expressly stated
in the notice. 8/
8/ This conclusion is not fully consistent with the deterrninatior.
;ade in my ruling on the second motion for summary judgment issued
April 20, 1979. My final decision is made with the benefit of a full
record. To the extent that the summary decision is inconsistent, it
is hereby reversed.

1328

Accordingly, I find that the Respondent was not. in violation of
the safeguard notice according to the specific terms of that notice
and that the notice of violation should be vacated and this proceeding dismissed.
There is evidence that the derail was, in fact, not maintained
in an operable-·condition, but that circumstance was not included
within the charge in the notice of violation.
Finally, it should be noted that changes have been made to correct the condition so that the same hazard cannot occur in the future.
The derail has been placed at the approval of the second inspector,
Mr. Whalen, 17 to 18 feet from the shaft collar and it is tied in
some automatic way with the hoist by pneumatic air. It is impossible
now to get a car between the derail and the gate at the shaft collar
( Tr • 7 9 ( b ) ) •
ORDER
It is ORDERED that the notice of violation issued herein, No. 1
CEW, September 13, 1977, is hereby VACATED and this proceeding is
hereby DISMISSED.

g.'/l~
~-;.~~
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)/\_
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.
p;f:~t-"'pt,,/<!.,.{(./.4,t ti~ - /vl · ~
·

L.,...-/

Franklin P. Michels
Administrative Law Judge
Distribution:
Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O.
Box 10406, Birmingham, AL 35202 (Certified Mail)

1329

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

4
S' ··p
t.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

\'1&j
Civil Penalty Proceeding
Docket No. PENN 79-11
A/O No. 36-00966-03017

v.
Montour No. 4 Mine
~c· ".JOLIDATION

COAL COMPANY,
Respondent
DECISION APPROVING WITHDRAWAL

On 'July 16, 1979, the Solicitor filed a motion to approve a
settlement of $60 for the only citation in this petition. The
citation, which was issued for failure to wear face shields or
goggles, was originally assessed at $140. In his motion, the
Solicitor advised he would likely be unable to prove a violation
since the operator has an enforced eye protection program. He
then. cited North American Coal r ~poration, 3 IBMA 93.
On August 6, 1979, I disapproved the proposed settlement.
Based upon the Solicitor's representations, I concluded a violation.
did not appear to exist and that the petition should be withdrawn.
The parties were then ordered to submit additional statements on
or before August 20, 1979.

The Solicitor has now filed· a motion to withdraw the petition
for assessment of a civil penalty. In his moti~n, the Solicitor
advises the following:
A review of the evidence has revealed that Respondent
has an enforced eye protection program at the mine which
is aimed at insuring that its miners wear eye protection
at all times as required by the Act. According to North
American Coal Corporation, 3 IBMA 93, at 107, no violation
of 30 CFR 75.1720(a) exists where an operator has established a safety system designed to assure that emp.loyees
wear safety goggles on appropriate occasions and enforces
the system with due diligence. If the failure to wear
glasses is entirely the result of his or her own disobedience or negligence rather than the operator's
failure to require that the glasses be worn, no violation
has occurred.

The Solicitor's representations are well taken. Accordingly,
the Solicitor's motion to withdraw the petition for assessment of a
civil penalty is hereby APPROVED.

Assistant Chief Administrative Law Judge
Distribution:
David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1331

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

Sf.:? 5
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Civil Penalty Proceeding
Docket No. DENV 79-91-PM
A.O. No. 10-00088-05001
Lucky Friday

HECLA MINING COMPANY,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Trial Attqrney, Office of
the Solicitor, U.S. Department of Labor, San
Francisco, California, for the petitioner;
Fred M. Gibler, Esquire, Kellogg, Idaho, for
the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding was one of two docketed cases heard in Wallace,.
Idaho on July 12, 1979. The case was initiated by the petitioner on
November 28, 1978, when it filed a petition for assessment of civil
penalty pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a) seeking civil penalty assessments for five alleged violation~ of certain mandatory safety standards
found in Part 57, Title 30, Code of Federal Regulations. Respondent
filed a timely answer contesting the petition and the case was docketed
for a hearing on the merits. However, when the docket was called
the parties advised that they had reached certain stipulations and
agreements and had reached a tentative settlement .as to the civil
penalties which they believe should be assessed in this proceeding.
Petitioner was afforded an opportunity to present arguments in support
of its proposed settlement for my consideration pursuant to Commission
Rule 29 CFR 2700.30.
Discussion
The parties stipulated to the Commission's jurisdiction, and agreed
that the respondent is a large mine operator, has no prior history

of assessed violations, and that the imposition of civil penalties would
not impair its ability to remain in business (Tr. 3-4).
The petition for assessment of. civil penalties filed in this case
by the petitioner pertains to the following citations and proposed
penalties:
Citation No.

Date

30 CFR Section

Assessment

350613
348401
348402
350614
350615

3/28/78
3/30/78
4/5/78
4/6/78
4/11/78

57.3-22
57.3-22
57.16-3
57.3-22
57.6-5

$255.00
$170.00
$180.00
$150.00
$370.00

During the hearing, petitioner's counsel indicated that the
proposed assessments shown above which appeared in the petition
filed on November 29, 1978, does not reflect the results of an assessment conference which took place prior to the filing of the petition
but after the initial assessments (tr. 5). As a result of that
conference the civil penalties reflected in the petition were reduced
by the assessments office as follows:
Citation No.
350613
348401
348402
350614
350615

Adjusted Assessments
$ 90.00
$106.00
$130.00
$ 98.00
$122.00

Petitioner argues that Citations 350613 and 350614 sho~ld be
further reduced to $45.00 and $50.00 respectively. In support of
this, counsel argues that his investigation indicates that the
assessment off ice placed significant emphasis on the element of negligence
in reaching the initial assessments, but that in fact the
circumstances surrounding the citations in question indicates that
the degree of knowledge on respondent's part at the time the citations
issued was significantly lower than that assumed by the assessment
office, and that the citations were timely abated (Tr. 6). With
respect to Citations 348402 and 350615, counsel indicated that the
.adjusted assessments made after the conference are appropriate and that
respondent had agreed to make payment in the full adjusted amounts
(Tr. 6). As for citation 348401, counsel asserted that upon further
investigation of the circumstances surrounding that citation
petitioner cannot sustain its burden of proof and therefore moved
for leave to dismiss the citation (Tr. 5-6).
Citations 350613 and 350614 both involve violations of the
provisions of 30 CFR 57.3-22 which requires pre-shift and on-shift
examinations of working places and ground conditions to insure that

1333

adequate testing and ground control practices are followed and that
loose ground be either removed or adequately supported. A review
of the answer and arguments filed by the respondent in defense of
these two citations reflects that the miners working in the areas
where the conditions were cited were aware of the loose ground and were
in the process of removing or bolting the areas cited so as to insure
the safety of miners. The on'""coming shifts had apparently conducted
the required pre-shift examinations, discovered the conditions, and
were in the process of taking corrective action. In the circumstances,
I am convinced that these facts obviously influenced petitioner's
counsel in his case preparation and evaluation of the circumstances
which prevailed on the day in question, particularly with respect
to the question of negligence. Accordingly, the proposed settlements
were approved from the bench (tr. 7), and that approval is herein
reaffirmed.
With regard to citations 348402 and 350615, the arguments presented
on the record convinced me that the proposed settlements should be
approved (Tr. 7), and that conclusion and finding on my part is also
herein reaffirmed. As for the remaining citation 348401, petitioner's
motion to dismiss was granted (Tr. 8). In effect, petitioner
sought leave to withdraw its petition for assessment of civil penalty
as to that citation, and the granting of the motion to dismiss is
likewise reaffirmed.
In summary, after full and careful evaluation of all of the
circumstances surrounding the citations at issue in these proceedings,
including the criteria set forth in Section llO(i) of the Act, I
am of the view that the settlements and disposition made in these
proceedings pursuant to 29 CFR 2700.30 will effecuate the deterrent
purpose of civil penalties for violations such as those alleged in the
instant citations.
Order
Respondent is ordered to pay civil penalties totaling $342.00
in satisfaction of the settled citations within thirty (30) days
of the date of this decision and order. It is further ordered that
citation 348401 be dismissed.

hutt.~
Administrative Law Judge

1334

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

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

!979
Civil Penalty Proceedings
Docket No, DENV 79-322-PM
A.O. No. 26-01452-05001

v.

Settlemeyer Pit

ROBERT L. HELMS CONSTRUCTION
& DEVELOPMENT CO.,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
This proceeding concerns a petition for assessment of civil
penalty filed by the petitioner on February 8, 1979, pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 820(a), seeking civil penalty assessments for 19 alleged
violations of the Act and implementing mine safety and health standards.
Respondent filed timely answers contesting the citations and
alleged violations and by notice issued April 13, 1979, the matter.
was scheduled for hearing in Reno, Nevada, August 8, 1979. However,
in view of a proposed settlement by the parties, the hearing was
cancelled and by motion filed August 17, 1979, petitioner has presented
arguments in support of the proposed settlement.
The citations, and the proposed settlement amounts are as
follows:
Citation No.
371721
371722
371723
371725
371726
371727
371728
371729
371730
371731
371732
37173.3
371734
371735
371736
371737
371738
371739

Date
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/13/78
4/18/78
4/18/78
4/18/78
4/18/78
4/20/78
5/4/78
6/28/78

30 CFR Section

Assessment

Settlement

56.26-1
56.4-2
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.5-50A
56.5-50B
56.5-50A
56.5-50B
56.9-88
56.9-88
56.9-87
1335

$26.00
$44.00
$72.00
$90.00
$90.00
$90.00
$66.00
$66.00
$90.00
$90.00
$66.00
$52.00
$48.00
$52.00
$66.00
$66.00
$32.00
$40.00

$23.00
$39.00
$64.00
$72.00
$72.00
$72.00
$52.00
$52.00
$72.00
$72.00
$52.00
$46.00
$43.00
$46.00
$52.00
$52.00
$28.00
$36.00

With respect to Citation No. 371724, April 13, 1978, citing
a violation· of 30 CFR 56.14-1, petitioner moves to dismiss without
prejudice and in support of its motion asserts that the citation alleges
a condition similar to that found in MSHA v. Massey Sand and Rock
Company, Docket No. DENV 78-575-PM. Petitioner s~ates it is
appealing that decision and if it is affirmed by the Commission
the citation will remain withdrawn. If not, petitioner proposes
to reassess the civil penalty.
In support of its motion to approve the proposed settlement
petitioner has submitted information concerning those factors required
to be taken into account under section llO(i) of the Act. That
information reflects that respondent operates a small-to-medium
size metal and nonmetal mine, has no prior history of aasessed
violations, and that payment of the proposed civil penalties will not
impair its ability to continue in business. Further, petitioner asserts
that upon investigation it would appear that the evidence which would
be produced at any hearing on the merits would establish less gravity
and negligence than was assessed initially by the petitioner's assessments
office, and that respondent exercised complete and prompt abatement
of all of the conditions cited. Petitioner therefore believes that
the proposed settlement does not shock the conscience, is within the
bounds of reason, and will clearly effectuate the deterrent purpose
of civil penalties for violations such as those alleged in the
instant citations.
I have carefully reviewed all of the pleadings filed in this
proceeding, includ-ing copies of the citations, abatements, inspector's
statements, and upon consideration of the arguments presented by the
petitioner in support of the proposed settlement and disposition of
this matter I conclude and find that the motion should be granted.
Accordingly, pursuant to Commission Rule 29 CFR 2700.30, settlement
is approved.
Order
With regard to petitioner's motion to dismiss Citation No.
371724 without prejudice, I take note of the fact that on July 27,
1979, the Commission denied petitioner's petition for discretionary
review of my decision in Massey Sand and Rock Company. Accordingly,
petitioner's motion to dismiss the citation is granted and the
citation is dismissed.
Respondent is ordered to pay civil penalties totaling $945.00
in satisfaction of the cited violations within thirty (30) days
of the date of this decision and order. Upon receipt of payment,
this proceeding is dismissed.

Administrative Law Judge
1336.

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

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

~979

Civil Penalty Proceeding
Docket No. DENV 79-88-P
A.O. No •. 42-00089-03004

v.
CO~STAL

STATES ENERGY CO.,
Respondent

Southern Utah Fuel Mine

DECISION AND ORDER APPROVING SETTLEMENT
Statement of the Case
This proceeding concerns a petition for assessment of civil
penalty filed by the petitioner on November 29, 1978, pursuant to
Section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 820(a), charging the respondent with an alleged violation
of the provisions of 30 CFR 77.130l(c), cited in Citation No. 245262
on April 5, 1978, for which petitioner seeks a civil penalty
assessment in the amount of $305.00. Respondent filed an answer
denying the fact of violation and contending that the proposed
assessment was excessive. Respondent requested ·a hearing on the
petition, and by notice of hearing issued April 13, 1979, the
matter was docketed for hearing in Salt Lake City, Utah, July 20,
1979. Subsequently, on June 21, 1979, petitioner's counsel, James
H. Barkley, telephonically advised my office that the parties had
reached a tentative settlement of the matter, and as a result of that
call the hearing was subsequently cancelled for the purpose of
permitting the parties an opportunity to file the proposed settlement
for my review and possible approval pur·suant to Commission Rule 29
CFR 2700.27(d), now 29 CFR 2700.30. In addition, Counsel Barkley
was afforded an opportunity at the same time to enter his appearance
in the matter, and this was done on July 2, 1979.
On July 6, 1979, the parties filed a joint motion and stipulation
for approval of a proposed settlement whereby respondent agrees to
pay a civil penalty in the amount of $157.50 for citation 245262.
In support of the motion, the parties assert that the proposed
settlement takes into account the following statutory factors set
out in Section llO(i) of the Act:
·

1337

History - In the previous 24 months respondent was inspected
a total of 280 days and has received 224 assessed violations.
Size - Respondent operates a coal mine which mines approximately
5,000 tons of coal daily and employees [sic]~approximately 146
employees.
Ability to continue in business - Payment of the proposed
penalty will not impair the respondent's ability to continue
in business.
Good faith, negligence and gravity - See the inspector's
statement Exhibit A attached hereto, which reflects the testimony
of the inspector if he were to testify. Additionally, the
inspector would testify that the condition was corrected within
·the time specified for abatement.
Such amended proposed penalty .also takes into account the
uncertainties of litigation.
Discussion
Commission Rule 2700.30, 29 CFR 2700.30, concerns the manner
in which proposed settlements are to be adjudicated, and the rule
states in pertinent part:
(b) Contents of settlement. A proposal that the
Connnission approve a penalty settlement shall include
the following information for each violation involved:
(1) the amount of the penalty proposed by the Office of
Assessments of the Mine Safety and Health Administration;
(2) the amount of the penalty proposed by the parties to
be approved; and (3) facts in support of the appropriateness of the penalty proposed by the parties.
(c) Order approvi11g settlement. 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. Such
order shall become the final decision of the Commission 40
days after approval unless the Commission has directed that
such approval be reviewed. (Emphasis added.)
After full review and consideration of the arguments advanced
by the parties in support of their proposed settlement, including
the pleadings filed in this case, I conclude and find that the motion
should be granted and that the settlement should be approved. The
condition cited indicates that a surf ace metal detonator magazine

1338

was not constructed in accordance with the requirements of section
77.130l(c) in ·that several nails and bolts were exposed on the
inside of the ungrounded detonator magazine in question and that
screens were not provided over the ventilation openings. Among
other things, subsection (c) requires that magaziues other than box
~be grounded and provided with screens.
Abatement was achieved
through the construction of a new detonator storage magazine. Although
not specifically and fully articulated by the parties as part of
their arguments in support of the proposed settlement, I take
particular note of the fact that respondent's .answer to the petition
raises a viable defense to the alleged violation in that respondent
asserts that mandatory standard 77.130l(c) set forth certain
requirements for "magazines other than box typ~", whereas the
explosives magazine described in the citation was a box type magazine.
I assume that this defense advanced by the respondent is the basis
for the "uncertainties of litigation" statement made by the parties
as an additional reason for the proposed settlement. Coupled with
the fact that the petitioner believes the condition cited was abated
in good faith, I cannot conclude that the proposed settlement does
not comport with the intent and purposes of the Act. Accordingly,
pursuant to 29 CFR 2700.30, settlement is approved.
Order
Respondent is ordered to pay a civil penalty in the amount of
$157.50 in satisfaction of citation 245262 within thirty (30) days
of the date of this decision and order. Upon receipt of payment,
this matter is dismissed.

~-?!/£
1~~
/ f/lrte
~ Koff/Js
Administrative Law Judge
Distribution:
James H. Barkley, Esq., U.S. Department of Labor, Office of the
Solicitor, 1585 Federal Building, 1961 Stout St., Denver, CO
80294 (Certified Mail)
Clayton J. Parr, Esq., 1800 Beneficial Life Tower, 26 South
State St., Salt Lake City, UT 84111 (Certified Mail)
Henry C. Mahlman, Associate Regional Solicitor, U.S. Department
of Labor, 1585 · Federal Office Building, 1961 Stout Street,
Denver, CO . 80294 (Certified Mail)

1339

flEDE~AL MINE

s.A?ETY AND MEt.u.:rH t~EViEVi/ COMf'tiHSS~ON
OFFICE OF ADiVllNISTRATIVE. LAW JUDGES·
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP

7 191S

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

Civil Penalty Proceeding
Docket No. PITT 79-191-P
A/O No. 36-06133-03008

v.
Westland No. 2 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
On July 2, 1979, the Solicitor filed a motion to approve settlements for the three violations in this proceeding. Two of the citations
were issued for inadequate roof support and were assessed at $106 and
$122. The recommended settlements were for $72 and $98. The Solicitor
advised the reductions were warranted by the operator's good faith
abatement. The third citation was issued for failure to wear proper
eye protection and was assessed at $60. The recommended settlement
was $38. The Solicitor advised this reduction was warranted because
the operator's negligence was like that found in North American Coal
Corporation, 3 IBMA 93 (1974). The Solicitor further advised that the
mine.r had received a disciplinary slip from the operator.
On August 6, 1979, I disapproved the proposed settlements. I
noted then that the amounts originally assessed for the roof control
violations were the minimum that could be assessed under the circumstances, and that rapid abatement could not justify any further
reductions. In reference to the proposed settlement for the eye
protection violation, I noted the Solicitor's citation of North
American appeared inapposite, since the citation there was vacated.
In view of these findings, I ordered the parties to submit additional
statements on or before August 20, 1979.
The Solicitor has now filed another motion to approve settlements
for these violations. In his motion, the Solicitor advises the
following:
1. The attorney for the Secretary and the respondent's
attorney Michel Nardi have discussed the alleged violations
and the six statutory criteria stated in Section 110 of the
Federal Mine Safety and Health Act of 1977.

1340

2. Pursuant to those discussions, an agreed settlement
has been reached between the parties in the amount of $228.00.
The original assessment for the alleged violations was $288.00.
3. A reduction from the original assessment is
warranted in light of the following circumstances.
The parties, pursuant to the Disapproval of Settlement
of August 6, 1979, have again discussed the facts and
circumstances surrounding these two violations and have
concluded as follows:
a. Citation No. 231524 was issued for a violation
of the operator's roof control plan (30 CFR 75.200). The
posts were not installed on four foot centers and the width
of this intersection was therefor~ not in compliance with
the approved roof control plan. The originally assessed
penalty of $106 accurately reflects the operator's negligence and the gravity of this violation and should therefore
be approved.
b. Citation No. 231525 was also issued when an
inspector observed that the approved roof control plan
was not being followed. Here, the total width of an
intersection was 59 1/2 feet as opposed to the 58 foot
distancing required by the roof control plan. The
originally assessed penalty of $122 accurately reflects
the operator's negligence and the gravity of this
violation of 30 CFR 75.200 and should therefore be
approved.
c. Citation No. 231527 was issued when an inspector
observed a miner travelling in an open type locomotive
without wearing eye protection. This violation of
30 CFR 75.1720(a) was originally assessed at $60.00.
Here, the miner involved was issued a disciplinary
siip for failing to wear eye protection as required by
the operator. These circumstances closely resemble those
found in North American Coal Company, 3 IBMA 93 (1974)
and therefore, no penalty should be assessed here.
I accept the Solicitor's representations. Accordingly, I conclude
the recommended settlements are consistent with and will effectuate
the purposes of the Act. The recommended settlements are therefore,
approved.

1341

ORDER
The operator, having already paid $206, is ORDERED to pay an
additional $22 within 30 days from the date of this decision. ·

(--------...
.

(~-

\

........

..) r'\ ''-..(''\.,"'-

.~\ G_i_,J"'---\1 '\ \., \ ~--01...v-·v--n
Paul Merlin
-Assistant Chief Administrative Law Judge

Distribution:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of
Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelp~ia, PA 19104
(Certified Mail)
Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1342

FEDERAL iViH-41E SAFETY ANO HEAt"fH REVIEW COMWHSSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 17 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. WEVA 79-11
A/O No. 46-01968-03024
Blacksville No. 2 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
The Solicitor advises that he and the attorney for the operator
have discussed the alleged violations in the above-captioned proceedings. Pursuant to such discussion, the Solicitor has filed a
motion to approve settlements aereed to by the parties.
Citation No. 260067 was issued for failure to provide a fire
extinguisher at a greasing station. This violation of 30 CFR
75.1100 was originally assessed a.t $180. The recommended settlement
is $130. The Solicitor advises the reduction is warranted because
the cited standard is not explicit in its requirement for locating
fire-extinguishers at greasing stations, and because the Respondent
had no actual knowledge of such a requirement. The Solicitor further
advises the Respondent believe~ adequate protection for the area was
provided by the presence of two nearby fire extinguishers at a
dumping station and at an oil breaker. I accept the Solicitor's
representations. Accordingly, this recommended settlement is hereby
approved.
Citation No. 261295 was issued for failure to support a power wire
on well insulated J-hooks. The recommended settlement for this violation of 30 CFR 75.516-1 is for the assessed amount of $160. The
Solicitor simply advises the penalty for this citation is unaffected
by the settlement motion. This does not provide a sufficient basis
for approval of the recommended settlement, since proceedings before
the Commission are de novo. Such a statement will not be acceptable
in the future. Rather than disapprove this settlement however, I
·have reviewed the citation, the assessment sheet, and the attached
inspector's statement. Based upon my own review of the violation, I
conclude the recommended settlement is consistent with and will
effectuate.the purposes of the Act.· The recommended settlement is
therefore, approved.

1343

ORDER
The operator is ORDERED to pay $290 within 30 days from the date
of this decision.

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

1344

FIEDERAL MINIE SAFETY AND MiEAl"fH RIEVIEW COMMESSiON
OFFICE Of ADMINISIRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP t 7 1979
Civil Penalty Proceeding

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

Docket No. PENN 79-10
A/O No. 36-03298-03006

v.
Laurel Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
The Solicitor has filed motions to approve a settlement in the
above-captioned proceeding.
The only violation in this petition was issued for failure to
maintain average concentrations of respirable dust at or below
2 milligrams of respirable dust per cubic meter of air. This violation
of 30 CFR 71.100 was originally assessed at $325. The Solicitor
initially filed a motion recommending a settlement of $195. In a
telephone conversation with counsel, I indicated the recommended
settlement would not be ~cceptable. The Solicitor now has filed
an amended motion recommending a settlement of $225. The reasons
for this reduction were set out in the initial motion to approve
settlement. In the initial motion, the Solicitor advised the
following:
A reduction from the original assessment is warranted
under the circumstances of this case. The citation involves a violation of 30 CFR 71.100 for ·the operator's
failure to provide respirable dust samples within the
permissible limits. Thereafter, a 104(b) order was
issued for the operator's failure to abate the citation
within a reasonable amount of time. Further investigation
into the factors underlying issuance of the citation and
order disclosed that the operator's negligence was less
than originally c-'_culated in the proposed assessment.
In addition, the operator demonstrated more good faith
than originally allocated. Although it is true that
the operator did not reduce the respirable dust in the
atmosphere to permissible limits within the time specified
in the original citation, the operator had taken steps to
at.tempt to abate the condition. In particular, the
operator had attempted to change the heating system and

1345

had ordered new electric heaters in order to alleviate
the problem. After the 104(b) order was issued, it was
found that the heaters were not the source of the
respirable dust problem but rather, the ventilation
needed to be altered.
I accept the Solicitor's representations. Accordingly, I conclude
the recommended settlement is consistent with and will effectuate the
purposes of the Act. The recommended settlement is therefore, approved.
ORDER
The operator is ORDERED to pay $225 within 30 days from the date
of this decision.

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

1346

FEDERAL MINE SAFETY P.ND HEALTH RIEVIEW COMMESS30N
OFFICE OF ADMli\llSTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 17 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. PENN 79-2
A/O No. 36-00965-03024

v.
Westland Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
On July 2, 1979, the Solicitor filed a motion to approve settlements
in the above-captioned proceeding. In this motion, the Solicitor moved
to vacate Citation No. 231502 which was issued for failure to maintain
adequate roof support, relying upon the decision of the Interior Board
of Mine Operations Appeals in Plateau Mining Company, 2 IBMA 303.

On August 13, 1979, I disapproved the recommended settlement,
stating that no authority had extended the decision in Plateau Mining
to other mandatory standards, particularly standards involving roofs
which are the major cause of serious injury and death in the mines.
-In the absence of any such precedent and because inadequately supported
roof could present a very real danger even when dangered off, I concluded approval could not be granted on the basis of a few brief representations in a motion to approve settlements. However, I did note
that the factors described by the Solicitor could be considered as
affecting gravity.
The Solicitor has now filed another motion to approve settlements.
In her motion, the Solicitor advises the following:
A reduction from the original assessment is warranted
for citation number 231502. As stated in the Solicitor's
previously submitted motion, the citation alleges a
violation of 30 CFR 75.200 in that eight bolts above a
track haulage were broken or missing in a 100 foot
expanse of roadway. Important to consider in reducing
the penalty allocation is the fact that the area had been
dangered off by management and was under repair when the
citation was issued. In addition, this area was not
regularly travelled and the roof was in good condition.
Th;i.s' information· effects the negligence and gravity

1347

factors underlying the penalty assessment. The proposed
assessment gave 12 negligence and 10 gravity points.
Considering the above, imposition of only 9 negligence
and 7 gravity points is reasonable. The revised penalty
point total is 44. Application of the penalty conversion
table results in a $240.00 penalty assessment.
The Solicitor has also recommended settlements for the other two
citations in this petition. In her original motion, she advised the
following:
. CITATION NO. 231882; 30 CFR 75.516-2(c): This
citation was written as two telephone conductor wires
were without additional insulation and were in contact
with energized power wires and crossing under a high
voltage cable. The $180.00 assessment for this cit.ation
should be reduced to $50.00. This reduction is warranted
under the circumstances as further investigation has
rev~aled that the telephone wires in question were not
energized at the time. The wires were dead and not
connected to any telephone. Therefore, no power was
going through the telephone conductor wires and no
fire hazard existed. This condition had been previously
cited on October 18, 1978 and abated by disconnecting
the power. Such abatement was approved. The date this
citation was written October 30, 1978, the wires were
still without power. Accordingly, such a reduction
accurately reflects the negligence of the operator and
the probability of an injury occurring under the
circumstances.
CITATION NO. 231893; 30 CFR 75.17'04: This citation
alleges that a return escapeway was in an unsafe condition
because a 25 foot roof fall had occurred and loose
unsupported roof existed in the area. It is true that a
violation exists in this case. However, this roof fall
occurred after the weekly examination of the return
escapeway had been made. In fact, on just the day·
previous to issuance of this citation, the area had been
walked and no roof fall had occurred. Under the circumstances, the operator's negligence is minimal. Although
a violation technically existed, the negligence factors
greatly in the imposition of the $195.00 assessment.
$150.00 is more appropriate.

1348

In her supplemental motion, the Solicitor added the following:
The reasons given by the Secretary for reducing
the penalty for citation number 231882 should be
clarified as follows. In an inspection conducted
prior to the one giving rise to the instant citation,
a citation was issued because the same telephone
wires involved in this citation were found not to be
insulated. The abatement method approved in that
case was deenergization of the telephone wires. In
this case, another inspector seeing the uninsulated,
deenergized wires, issued the citation involved herein.
For these reasons, the operator's negligence is
minimal. This criteria has been given considerable
weight in reducing the proposed penalty amount from
$180.00 to $50.00.
I accept the Solicitor's representations. Accordingly, I conclude
the recommended settlements are consistent with and will effectuate the
purposes of the Act. The recommended settlements are therefore,
approved.
ORDER
The operator is ORDERED to pay $440 within 30 days from the date
of this decision.

~~\~n·

~

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1349

FEDERAL MBNE SAFETY AND ~HEALYH REViEW COf!iHVHSSH.H\l
OFFICE OF ADMINISTRATIVE LAW JUDGES
40i5 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 1 8 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTit
ADMINISTRATIDN (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. PIKE 78-348-P
Assessment Control
No. 15-02%0-02004

v.

No. 1 Mine_
THACKER COAL COMPANY,_
Respondent
. DEFAULT.DECISION
Appearances::

Edward H.. Fitch_ IV, Esq. , Office of the· Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before

Administrative Law Judge Steffey

Wh.en the hearing in the above-entitled proceeding was convened in
Pikeville, Kentucky, on July 26, 1979, pursuant to a written notice of
hearing dated June 14, 1979, and served on respondent's representative
on July 17, 1979, by a Federal coal-mine inspector, counsel for the Mine
Safety and Health Administration entered his appearance, but no one
appeared at the hearing to represent respondent. ·The Connnission's Interim
Procedural Rules which were then in effect provided (29 CFR 2700.26(c)):
(c) Where the respondent fails to appear at a hearing, the
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 sunnnary order imposing the proposed penalties as final,
aµd directing that such penalties be paid.
Counsel for petitioner moved at the hearing that respondent be held
in default pursuant to Section 2700.26(c) and that the.pena~ties proposed
by the Assessment Office be imposed. Counsel for petitioner also stated
that he had just finished discussing the Assessment Office's proposed
penalties with the inspectors who wrote the notices of violation here
involved and that the inspectors had advised him that the proposed penalties·
were in line with the company's size and the other five criteria which
are required to be used in th.e assessment of penalties.

1350

MSHA v. Thacker, Docket No. PIKE 78-348-P (Contd.)
Petitioner's motion is granted and I find respondent to be in
default. I further find that respondent has waived its right to a
hearing and that the penalties proposed by the Assessment Office should
be imposed as hereinafter· ordered.
WHEREFORE, it is ordered:
Thacker Coal Company, shall, within 30 days from the date of this
decision, pay civil penalties totaling $230.00 which are allocated
to the. respective violations as follows:
Notice No. 2 ALG (5/18) 12/11/75 § 75.1710-1 •• ~ ••••• $ 70.00
Notice No. 1 ALG (6-1) 1/12/76 § 75.1710-1 • • • • • • • • • 74.00
Notice No. 3 RDM (7-10) 7/13/77 § 75.1725 •••••••••••. 86.00
Total Penalties Assessed in·This Proceeding •••• $230.00

~:CA.cv~ C. r;it;Ll'2--:.Y-

Ri.chard C. Steffey /Jll t/
Administrative Law Judge

Distribution:
Edward H. Fitch_ IV, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Thacker Coal Company, Attention: Mr. Jim Childers, Route 1,
Box 909B, Pikeville, KY 41501 (Certified Mail)

1351

5t1J="1EYV AND w;.;~ft;L"'f}\ R l£ V&£Vv COf</HV~rns~ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
Ai~LINGTON, VIHG INIA 22203

SEP 1 8 1979
SECRETARY 9F LABOR,

Civil Penalty Proceeding

MINE SAFETY AND HEALTH
ADMINISTRATION Q1SHA),

Docket No. PIKE 79-15-P
Assessment Control
No. 15-10998-03001

Petitioner

v.
Holt Tipple
ENERGY DEVELOPMENT CORPORATION,

Respondent
DECISION. APPROVING SETTLEMENT

Appearances:

Edward R. Fitch IV, Esq. , Off ice of the Solicitor,
Department of Labor, for Petitioner;
Frederick L. Delp, Esq., Wood, Grimni & Delp,
Huntington, West Virginia, for Respondent in
settlement negotiations.

When the hearing in the above-entitled proceeding was convened on
July 26, 1979, in Pikeville, Kentucky, counsel for the Mine Safety and
Health Administration requested that a settlement agreement entered into
by the parties be approved. Under the parties' settlement agreement,
respondent would pay total penalties of $200 in lieu of the total
penalties of $700 proposed by the Assessment Office. Counsel for MSHA
stated that he had agreed to accept the reduction in payment of penalties
on the basis of a letter from respondent's attorney which, in pertinent
part, reads as follows:

* * * Pertaining to the above-captioned matter, it is our opinion
that Energy Development Corporation is not responsible for the
violations with which the above-captioned proceeding is concerned. Energy Development Corp. is not actively engaged in mining at the present time due to the depressed coal market and
financial problems resulting therefrom.
As I related to you by phone, Energy Development Corp. was
at one time interested .in using the facility where the violations
occurred and, as a result, had sent a Mr. Paul Washburn to the
facility to make certain repairs to the facility. Energy Development Corp. did not at that time, nor has it ever, owned, operated,
or leased the facility to my knowledge. Energy Development Corp.
has no intentions of utilizing this facility in the future in any
capacity whatsoever. In addition, it is my understanding and
belief that the alleged violations occurred as a result of
activities conducted at the facility by an entity or entities
other than Energy Development Corp. and prior to the time that
Energy Development Corp. sent its repairman to make repairs to the
facility.

l3Ci2

MSHA v. Energy Development, Docket No. PIKE 79-15-P (Contd.)
Although it is Energy Development Corporation's contention
that it should not be responsible for these violations, it is
willing to settle this matter for the sum of $200 in order to
avoid the time and expense involved in a hearing on the matter.
If this settlement is acceptable, please advise arnl the sum of
$200 will be remitted forthwith.
.
I find that respondent has given adequate reasons for accepting
a reduction of the proposed penalties from $700 to $200. In addition
to the mitigating factors set forth in respondent's letter, the official
file shows that respondent corrected all of the violations cited in
the inspector's order. In doing so, respondent made repairs on a
facility which it never owned, leased, or operated.

In other settlement offers which .I have approved, I have made a
detailed evaluation of the Assessment Office's findings with respect
to the six criteria which are required to be considered in uetermining
civil penalties. I do not believe that a discussion of the six
criteria is n'ecessary in this instance because the settlement is being
approved in light of extremely unique considerations which rarely occur.
The dangerous conditions found by the inspector at the Holt Tipple
have been corrected and the tipple's safety has been greatly improved
for the benefit of any company which may undertake to operate the tipple
in the future. Since there is considerable merit to respondent's contention that it was wrongly cited for the violations in the first
instance, I find that its willingness to settle the issues by the
payment of $200 has served the purposes of the Federal Mine Safety and
Health Act of 1977.
·
WHEREFORE, it is ordered:
· (A) The motion for approval of settlement is granted and the
settlement agreement is approved.
Energy Development Corporation, pursuant to the settlement
agreement, shall, within 30 days from the date- of this decision, pay
civil penalties totaling $200 which are allocated to the alleged violations as follows:
(13)

Order No. 1 PW (7-1) 10/28/77 § 77.700-l(a) •••.•••••••• $ 30.00
25.00
Order No. 1 PW (7-1) 10/28/77 § 77.505 . ................
Order No. 1 PW (1-1: .10/28/77 § 77.505 .. ...............
25.00
Order No. 1 PW (7-1) 10/28/77 § 77 .1607 (cc) ............
20.00
Order No. 1 PW (7-1) 10/28/77 § 77.400(a) ••••••••••••••
20.00
Order No. 1 PW (7-1) 10/28/77 § 77.400(a) ••••.•••.•••••
20.00
Order No. 1 PW (7-1) 10/28/77 § 7 7. 511 . ................
20.00
Order No. 1 PW (7-1) 10/28/77 § 7 7 . 513 ...............•.
20.00
Order No. 1 PW (7-1) 10/28/77 § 77 .1108 ................
20.00
---Total Settlement Penalties in This Proceeding .••••• $200.00

mu..A~

c. c:J;1c~l?t~¢-

Richard C. Steffey J ,} C/
Administrative Law Judge
1353

FEDERAL MtNE SAC:-iETY AND ~~EAtTH REVH::VJ COiVHlfHSS:ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON bOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 1 8 \979
SECRETARY- OF LABOR,
MINE SAFETY.- AND.:. HEAJ.,TIL ADMINISTRATION (MSHA) ,
Petitioner

Civil Penalty proceeding
Docket No. PIKE: 78-331:...p
Assessment Control
No. 05360-02001

v.
No. 1 Mine
M & E: COAL COMP ANY,
Respondent
DE}.,AULT DECISION
Appearances:

Edward H. Fitch IV, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Pikeville, Kentucky on July 26, 1979, pursuant to a written notice of
hearing dated June 14, 1979, and served on respondent's representative
on July 13, 1979, by a Federal coal""'llline inspector, counsel for the
Mine Safety and Health Administration entered his appearance, but no
one appeared at the hearing to represent respondent. The Couunission' s
Interim Procedural Rules which were then in effect provided
(29 CFR 2700.26(c)):
(c) Where the respondent fails to appear at a hearing, the
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,
and directing that such penalties be paid.
Counsel for petitioner moved at the hearing that respondent be held
in default pursuant to Section 2700.26(c) and that the penalties proposed
by the Assessment Office be imposed.
Petitioner's motion is granted and I find respondent to be in default.
I conclude that respondent has waived its right to a hearing by failing
to appear at the hearing.
In this particular case, it should be noted that respondent's reply
to the show~cause order issued in this proceeding· on April 5, 1979, stated
that respondent had filed a bankruptcy action in the United States
District Court, Case No. 78-13, and that an amount of $322.12 had been
distributed to respondent's creditors on November 17, 1978.
1354

MSHA v. M & E, Docket No. PIKE 78-331-P (Contd.)

Counsel for peti.tioner agreed at the hearing that any penalties
which may be assessed in this proceeding may be uncollectible, but
he concluded that the collectibility of the penalties could be determined
after a decision in this case has been issued.
There is nothing in the official file to show that the penalties
proposed by the Assessment Off ice were improperly determined under the
six criteria set forth in Section llO(i) of the Act. Therefore, I
shall direct that the proposed penalties be paid pursuant to Section 2700.26(c) quoted above.
WHEREFORE., it is ordered:
M & E Coal Company shall pay civil penalties totaling $108.00
within 30 days from the date of this decision. The penalties are
allocated to th.e respective violations as follows:
Notice No. 1 CAW (4-1) 10/22/74 § 75.512 ............. $ 24.00
Notice No. 1 DM (5-1) 2/13/75 § 75.200 •••••••••••••••
38.00
Notice No. 2 DM (5-2) 2/13/75 § 75.523 •••••••••••••••
46.00
Total Penalties Assessed in This Proceeding ••••• $ 108.00

~~ C. ~$/A,(-

Rich.ard C. Steffey
Cl
Administrative Law Judge
Distribution:

Edward H. Fitch_ IV, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
M & E Coal Company, Attention: Stirl Eddie Harris, Partner, Box 119
·Turkey Creek, KY 41570 (Certified Mail)

1355

FEDERAL MINE SAFETY AND Hf.AlYH R EVEEVJ CCH\>UJHSS60N
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEV,J,RD
ARLINGTON, VIRG INI/. 22203

SEP 1 8 1979
Civil Penalty Proceeding

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

v.
LAWSON COAL COMPANY, INC.,
Respondent

Docket Nos.

Assessment ·control Nos.

PIKE 78-404-P
PIKE 79-34~P

15-10173-02007 v
15-10173-03001

No. 32 Mi.lie

DEFAULT DECISION
Appearances:

Edward H. Fitch IV, Esq., Office of the Solicitor,
Department of Laoor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Ref ore

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Pikeville, Kentucky, on July 26, 1979, pursuant to a written notice of
hearing dated June 14, 1979, and received by respondent on June 18, 1979,
counsel for th.e Mine Sa~ety and Health Administration entered his appearance, but no one appeared at the hearing to represent respondent.
The Commission's Interim Procedural Rules which were then in effect
provided (29 CFR 2700.26(c)):
(c) Where the respondent fails to appear at a hearing, the
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,
and directing that such penalties be paid.
Counsel for petitioner moved at the hearing that respondent be held
in default pursuant to Section 2700.26(c) and that the penalties proposed
by the Assessment Office be imposed. Counsel for petitioner also stated
that he had just finished discussing the Assessment Office's proposed
penalties with the inspectors who wrote the notices of violation and
order involved and that the inspectors believed the penalties had
appropriately been determined to be in an upper range of magnitude since
the order involved in Docket No. PIKE 78-404-P had been issued under the
unwarrantable-failure provisions of the Federal Coal Mine Health and
Safety.Act of 1969. Petitioner's counsel stated that the six violations

1356

MSHA v. Lawson, Docket Nos. PIKE 78-40~., et al. (Contd.)
alleged by MSHA's Petition for Assessment of Civil Penalty filed in
Docket No. PIKE 79-34-P were significant and warranted the relatively
large penalties which had been proposed by the Assessment Office in
that docket.
Petitioner's motion tliat respondent be found in default is granted
and I find respondent to be in default. I conch1de that respondent
has waived its right to a hearing and that the penalties proposed by
the Assessment Office should be imposed as hereinafter ordered. I
note that some of the defenses set forth in respondent's reply to the
show~cause order issued in this proceeding on April 5, 1979, might have
been sufficient to justify some reduction in the penalties which were
proposed by the Assessment Office, but in a default proceeding, it
would be improper for me to take into consideration allegations made in
respondent's reply to the snow-cause order, particularly since
Section 2700.26(c) specifically provides that when a judge determines to
hold a respondent in default, "* * * the Judge shall enter a summary
order imposing the proposed penalties as final, and directing that such_
penalties be paid" (Emphasis supplied). In short, respondent cannot
have its evidence considered without availing itself of the opportunity
of sending a representative to the hearing.
WHEREFORE, it is ordered:
Lawson Coal Company shall, within 30 days from tfi_e date of this
decision, pay penalties totaling $2, 951. 00 which_ are allocated to the
respective violations as follows:
Docket No. PIKE 78-404-P
Order No. 2 Rilli (7-2) 3/3/7'7 § 75.402 ............... $ 1,250.00
Total Penalti_es in 'Docket No. PIKE 78-404-P
$ 1,250.00
Docket No. PIKE 79-34-P
Notice No. 2 FIJ (7-49) 6/16/77 § 75.313 ••••..•••••• $
370.00
Notice No. 7 FIJ (7-54) 6/16/77 § 77.1701
106.00
Notice No. 1 FIJ (7-57) 6/21/77 § 75.313
370.00
Notice No. 2 FIJ (7-58) 6/21/77 § 75.512
275.00
Notice No. 1 FIJ (7-60) 6/23/77 § 75 .1710
305.00
Notice No. 1 FIJ (7-61) 6/27/77 § 77. 400
275.00
Total Penalties in Docket No. PIKE 79-34-P
$ 1, 701.00
Total Penalties in This Proceeding
$ 2,951.00

. ..........
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.....

............

.............

~:Cf~/()../}(f

c. r;J:t~/!b--<f:. .

Richard C. Steffey // tl ti
Administrative Law Judge

1357

SttF:ZYV AND ~2ldLT£i ~1EV§E\:\f COM~JHSS~ON
OFFICE Of ADMIMSn;A-;iVE LM'J JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 19 19?9
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF WALTER LAWSON,
JR.'
Applicant

DiscriminaUon Complaint

Docket No. HOPE 79-157

v.
Crane Creek No. 6 Mine
CONSOLIDATION COAL COMPANY,
Respondent
ORDER DISMISSING COMPLAINT
Statement of the Case
This is a discrimination complaint filed by the Secretary on behalf
of Walter Lawson, Jr., pursuant to Section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977. A review of the pleadings reflects that
Mr. Lawson was employed by the respondent as a roofbolter and that he
was discharged on October 25, 1978, after being observed asleep on the
job during his work duty on a midnight shift. Sleeping on the job is
contr;ary to company policy and a dischargeable offense. Mr. Lawson
filed his initial complaint with the Secretary on November 2, 1978,
asserting that he was wrongfully discharged because of his health and
safety activities as a member of both th~ Mine Safety Committee and the
United Mine Workers of America. Mr. Lawson denied that he was asleep on
the job and asserted that many miners including the section foreman have
been observed sleeping during the midnight shift and have not been
fired, suspended or even reprimanded.
·
Mr. Lawson's discharge was arbitrated on November 6, 1978, pursuant
to the 1978 Bituminous Coal Wage Agreement, and an award made on November
20, 1978, reduced the discharge to a 90 day suspension which apparently
ended on or about January 25, 1979. Thereafter, on December 28, 1978,
the Secretary filed with the Commission his initial finding that Mr.
Lawson's complaint was not frivolously brought and the Secretary requested
an order from the Commission for Mr. Lawson's immediate temporary reinstatemen
pending a final order on the merits. By notice of hearing issued on
January 15, 1979, Chief Judge Broderick scheduled a hearing on the
Secretary's application for Mr. Lawson's temporary reinstatement for
January 19, 1979. However, on January 18, 1979, the Secretary, on behalf
of Mr. L.awson, withdrew his applicati.on for temporary reinstatement
on the·ground that respondent had given the Secretary assurance that
Mr. Lawson would be reinstated to his former position on the midnight
shift commencing January 24, 1979, and the hearing was apparently
cancelled.

On. January 29, 1979, the Secretary filed his discrimination complaint
in Mr. Lawson's behalf pursuant to Section 105 (c) (2) of the Act.
.
Respondent filed an answer, and after the completion of rather extensive
discovery, the matter was scheduled for a hearing on the merits in
Charleston, West Virginia, September 25, ·1979.
On September 17, 1979, the Secretary filed a motion to withdraw
his complaint of discrimination, and in support thereof states as follows:
1.

Following the issuance of the complaint in this
matter further investigation was conducted by
the Mine Safety and Health Administration (MSHA).

2.

MSHA's investigation disclosed that Mr. Lawsqn
was, in fact, found sleeping in the mine on
October 25, 1978 and that sleeping is a dischargeable
offense. Mr. Lawson had previously asserted that he
was not asleep.

3~

Notwithstanding the above, during the course of the
investigation, the Operator and the Secretary negotiated
a settlement which the Secretary believes would have ·
justly provided Mr. Lawson with the statutory remedies
to which he claimed entitlement. Mr. Lawson refused
to accept the settlement agreement.

4.

The Secret_ary then undertook further investigation
to determine whether disparate treatment existed in
this case. That investigation disclosed no evidence
of such disparate treatment.

5.

Accordingly, the Secretary now believes that no illegal
discrimination occurred as to Mr. Lawson and that
withdrawal from this matter is appropriate.

6.

This withdrawal is requested without prejudice to the
right of Mr. Lawson to file a complaint on his own
behalf pursuant to the Act.
Discussion

The complaint of alleged discrimination in this case was filed
by the Secretary on behalf of Mr. Lawson. Thus, it.is clear that the
Secretary is the moving party and that he initially sought a determination
and order by the Commission pursuant to Section 105(c)(2) that respondent

1359

unlawfully·discriminated against Mr. Lawson by discharging him because
of his engaging in certain mine safety and health activities protected
by Section 105(c)(l). Upon further investigation the Secretary now
believes that Mr. Lawson's discharge.was justified and that no illegal
discrimination under the Act occurred in connection with that discharge.
Under the circumstances, I conclude that the motion should be granted,
subject to any rights which Mr. Lawson may have to pursue this matter
further on his own behalf pursuant to Section 105(c)(3) of the Act.
Order
The Secretary's motion is granted and this matter is DISMISSED
without prejudice to Mr. Lawson's right to file a complaint on his own
behalf within thirty (30) days of the date he was notified of the
Secretary's determination that his rights under the Act were not violated.
The hearing scheduled for September 25, 1979, is cancelled.

~~
d~.· iNiKoutr'/[Administrative Law Judge

Dis· ribution:
Michei Nardi, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
Barbara Krause Kaufmann, Trial Attorney, U.S. Department of Labor,
Office of the Solicitor, 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Walter Lawson, Jr., Route 2, Box 69D-l, Rock, WV 24747 (Certified Mail)

1360

FEDERAL MINE SAFETY ANO HEJ~lTH REVIEW COM[\11SSION
OFFICE OF ADMIPHSTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 1 9 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Civil Penalty Proceeding
Docket No. DENV 79-160-PM
A/O No. 41-00007-05002

...

Bridgeport Quarry and Plant

TEXAS INDUSTRIES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
On March 26, 1979, Petitioner filed what was, in effect, a motion
for approval of settlement. This motion was denied in view of the
substantial reduction in proposed penalties and the absence of
sufficient explanation in the record for this reduction.
On July 2, 1979, Petitioner filed a second motion for approval
of settlement, as well as the inspector's statement for each citation.
As grounds for the reduction in penalties and the settlement achieved
by the parties, counsel for Petitioner asserted the following:
(1)

The operator has no history of previous violations,

(2) The size of the operator's business is between 200,000 and
300,000 annual hours worked by employees of the operator at the mine,
and between 900,000 and 3,000,000 annual hours worked by all employees
of the operator.
(3) With respect to Citation No. 154249, the amount of the
assessment for the alleged violation was $78 and the amount of the
settlement is $18. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the operator
had taken reasonable precautions to prevent the violation,
(b) The occurrence of the event against which the
standard is directed was not likely to happen,
(c) No lost workdays likely would have happened
if the event had occurred,

1%1

(d) Only one person would have been affected if the
event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(4) With respect to Citation No. 154250, the amount of the
assessment for the alleged violation was $78 and the mnount of the
settlement is $52. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator failed to exercise reasonable care
either to prevent or to correct the condition or practice
which caused the violat:on and which was known or should
have been known to exist.
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Lost workdays or restricted duty likely would
have happened if the event had occurred,
(d) Only one person would have been affected if the
event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(5) With respect to Citation No. 154251, the amount of the
assessment for the alleged violation was $98 and the amount of the
settlement is $52. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator failed to exercise reasonable care
either to prevent or to correct the condition or practice
which caused the violation and which was known or should
have been known to exist.
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Lost workdays or restricted duty likely would
have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and

1362

(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(6) With respect to Citation No. 154252, the amount of the
assessment for the alleged violation was $78 and the amount of
settlement is $18. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the
operator had taken reasonable precautions to prevent
the violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) No lost workdays likely would have happened if
the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(7) With respect to Citation No. 154253, the amount of the
assessment for the alleged violation was $106 and the amount of the
settlement is $28. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstanes the operator
had·taken reasonable precautions to prevent the violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Lost workdays or restricted duties likely would
have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.

1363

(8) With respect to Citation No. 154254, the amount of the
assessment for the alleged violation was $170 and the amount of the
settlement is $98. Petitioner believes that this settlement wili
effectuate the purposes of the Act and should be approved because:
(a) The operator failed to exercise reasonable
care either to prevent or to correct the condition or
practice which caused the violation and which was known
or should have been known to exist,
(b) The occurrence of the event against which
the standard is directed was likely to happen,
(c) Fatal injuries likely would have happened
if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(9) With respect to Citation No. 154255, the amount of the
assessment for the alleged violation was $122 and the amount of the
settlement is $22. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known of
the violation and under the circumstances the operator
had taken reasonably precautions to prevent the violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Lost workdays or restricted duty likely would
have happened if the event had occurred,
(d) Only one person would have been affected if the
event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(10) With respect to Citation No. 154256, the amount of the
assessment for the alleged violation was $106 and the amount of the
settlement is $28. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:

1364

(a) The operator reasonably could not have known of
the violation and under the circumstances the operator
had taken reasonable precautions to prevent the violation.
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Lost workdays or restricted duty likely would
have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(11) With respect to Citation No. 154258, the amount of the
assessment for the alleged violation was $114 and the amount of the
settlement is $38. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the operator had taken reasonable precautions to prevent the
violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Permanent disabling injuries likely would have
happened if th~ event had occurred, and
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(12) With respect to Citation No. 154259, the amount of the
assessment for the alleged violation was $140 and the amount of tte
settlement is $44. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
pf the violation and under the circumstances the
operator had taken reasonable precautions to prevent
the violation,

1365

(b) The occurrence of the event against which
the standard is directed was likely to happen,
(c) Fatal injuries likely would have happened if
the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.

(13) With respect to Citation No. 154260, the amount of the
assessment for the alleged violation was $140 and the amount of the
settlement is $48. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the operator
had taken reasonable precautions to prevent the violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Fatal. injuries likely would have happened if
the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the ·time given for
abatement.

(14) With respect to Citation No. 154261, the amount of the
assessment for the alleged violation was $122 and the amount of the
settlement is $34. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the
operator had taken reasonable precautions to prevent
the violation,
(b) The occurrence of the event against which the
$tandard is directed was likely to happen,
(c) Permanent disabling injuries likely would
have happened if the event had occurred,

1366

(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
(15) With respect to Citation No. 154262, the amount of the
assessment.for the alleged violation was $122 and the amount of the
settlement is $40. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
·of the violation and under the circumstances the
operator had taken reasonable precautions to prevent the
violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Permanent disabling likely would have happened
if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator abated the violation within the
time given for abatement.
(16) With respect to Citation No. 1542.63, the amount of the
Jsessment for the alleged violation was $106 and the amount of the
settlement is $40. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known of
the violation and under the circumstances the operator had
taken reasonable precautions to prevent the violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Permanent disabling injuries likely would have
happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator abated the violation within the
time given for abatement.

1367

(17)' With respect to Citation No. 154264, the amount of the
assessment for the alleged violation was $106 and the awount of the
settlement is $36. Petitioner believes that this settlement will
·effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the
operator had taken reasonable precautions to prevent
the violation,
(b) The occurrence of the event against which
the standard is directed was not likely to happen,
(c) Permanent disabling injuries likely would
have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
·(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.

(18) With respect to Citation No. 154265, the amount of the
assessment for the alleged violation was $150 and the amount of the
settlement is $98. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator failed to e~ercise reasonable care
either to prevent or to correct the condition or practice
which caused the violation and which was known or should
have been known to exist,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Fatal injuries likely would have happened if
the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.

(19) With respect to Citation No. 154266, the amount of the
assessment for the alleged violation was $106 and the amount of the
settlement is $60. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:

1368

(a) The operator failed to exercise reasonable
care either to prevent or to correct the condition or
practice which caused the violation and which was known
or should have been known to exist.
(b) The occurrence of the event against which
the standard is directed was likely to happen,
(c) Lost workdays or restricted duties likely
would have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violati~n wi~hin the time given.for
abatement.
(20) With respect to Citation No. 154267, the amount of the
assessment for the alleged violation was $98 and the amount of the
settlement is $32. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
the violation and under the circumstances the operator
had taken reasonable precautions to prevent the
violation,
(b) The occurrence of the event against which
the standard is directed was likely to happen,
(c) Lost workdays or restricted duty likely
would have happened if the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator abated the violation within the
time given for abatement.
(21) With respect to Citation No. 154268, the amount of the
assessment for the alleged violation was $150 and the amount of the
settlement is $38. Petitioner believes that this settlement will
effectuate the purposes of the Act and should be approved because:
(a) The operator reasonably could not have known
of the violation and under the circumstances the
operator had taken reasonable precautions to prevent
the violation,

1369

(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Only one person would have been affected if
the event had occurred, and
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
·(22) With respect to Citation No. 154269, the amount of the
assessment for the alleged violation was $170 and the amount of the
settlement is $48. Petitioner bel~eves that this settlement will
effectuate the purposes of the Act and should be approved because:
.Ca) The operator reasonably could not have known
of the violation and under the circumstances the
operator had taken reasonbly precautions to prevent the
violation,
(b) The occurrence of the event against which the
standard is directed was likely to happen,
(c) Fatal injuries likely would have happened if
the event had occurred,
(d) Only one person would have been affected if
the event had occurred, and
(e) The operator made special efforts to insure
abatement of the violation within the time given for
abatement.
In view of the above, Petitioner's motion is granted.
ORDER
It is ORDERED that the settlement reached by P€~itioner and
Respondent in the above-captioned proceeding is hereby APPROVED.
It is further ORDERED that Respondent pay the sum of $872 within
30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge

1370

FEDERAL IVllNE SAFETY AND HEALTH REVIEW COMMISSION
.

.

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRG tNIA 22203

SEP 1 S 1979

UNITED STATES STEEL CORPORATION,
Applicant
v.

Application for Review

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

Order No. 253998
November 22, 1978

Docket No. HOPE 79-152

Gary No. 14-3 Seam Portal

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
-Appearances:

Billy M. Tennant, Esq., United St'ates Steel Corporation,
Pittsburgh, Pennsylvania, for Applicant;
David F. Barbour, Esq., Office of the Solicitor, MSHA,
u.s. Department of Labor, for Respondent.

Before:

Administrative Law Judge Stewart
FINDINGS OF FACT AND CONCLUSIONS OF LAW

United States Steel Corporation (Applicant) filed a timely application pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 (hereinafter, the Act), 30 u.s.c. § 801 et seq.,
requesting review of Order No. 253998, dated November 22, 1978:-ORDER NO. 253998
Order No. 253998 was issued on November 22, 1978, by inspector
Joseph Barnett under sect.ion 104(d) of the Act. The inspector cited
an alleged violation of 30 CFR 75.200. The condition or practice
at issue was described as follows:
The approved roof control plan was not being followed
in that the No. 5 chain pillar split was driven up to
22 feet wide and the right wing had cut through to gob
and the place was driven 2 cuts inby. Turn timbers had
not been set at mouth of place to meet requirements of
the approved roof control plan.

1371

The ·order contains a finding that the violation was of such a
natur.e as could significan.tly and substantially contribute to the
cause and effect of a mine safety hazard.
The order was terminated 2 hours later. The attempt to recover
the No. 5 chain pillar was abandoned and it was timbered off.
Order No. 253998 was issued in the course of a regular inspection of the Gary No. 14-3 Seam Portal. The inspector proceeded to
the 2 Right Pump Heading Section, in the company of Delbert Parks,
mine inspector for Respondent, and Lloyd Kruger, a member of the
UMWA Safety Commission.
The inspector observed what he believed to be two conditions or
pract1ces in violation of Respondent's roof control plan at the
No. 5 Train Post Split. The first three cuts of the retreat mining
sequence had been made. The inspector testified that the second cut
in this sequence had been made to a width of 22 feet and that the
wing had been cut through into the adjacent gob area• He also testified that the third cut had been taken before the required turn posts
had been set.
Applicant submitted Proposed Findings 'of Fact which are set
forth in substance as follows as additional findings of fact in this
proceeding:
Inspector Barnett, a duly authorized representative
of the Secretary, conducted an inspection of Gary No. 14
mine on November 22, 1978. Barnett, accompanied by Parks
and Kruger, a UMWA representative, entered the mine at
8:30 a.m. and travelled to the 2 Right Pump Heading section.
Although the section crew had preceded Barnett into the mine
by 30 minutes, no mining had begun in the section when
Barnett arrived at 8:45 a.m.
Barnett testified that a cut was driven in No. 5 chain
pillar split to a width of 22 feet and the wing had been
cut through into the gob; in fact, the cut was 20 feet wide
but, because of a bump, a hole 3 feet long and 4 inches high
had developed near the roof and had slid down to increase
the width to 21 feet 5 inches.
Barnett testified that (a) the hole into the gob was
8 feet wide and from the bottom to the top of the coal seam,
i.e., 6 feet, and (b) that the hole was circular, beginning
about 2 feet from the bottom and having a diameter of 3 feet;
in fact, the hole was 3 feet long and 4 inches high.
Barnett testified that no timbers had been installed
along the rib where the hole into the gob was located; in
fact, two or three timbers had been set there.

1372

Barnett testified that there were bit marks to indicate that the miner had cut into the gob; in fact, there
were no such bit marks. The hole into the gob could not
have been cut by a continuous miner because of the location and dimensions of the hole.
Barnett testified that (a) breaker timbers had been
installed but that no turn timbers had been installed; and
(b) that no timbers were installed; in fact, both breaker
timbers and turn timbers had been installed.
Barnett testified that the line brattice was installed
on the right side and that no timbers were installed on the
left side; in fact, the line brattice was hung on timbers
installed along the left side and a check curtain was hung
on timbers installed on the right side.
Barnett testified that he issued the unwarrantable
failure order because the company did not seem very interested in correcting the condition and that he would have
issued only a citation if the condition had been corrected
within a reasonable period of time.
Parks told section foreman Hyatt to install crib
blocks, which were delivered from the surface to the section
and installed to breaker off ~he area later in the day.
Barnett testified that he discussed the matter with
Christian underground;. in fact, Christian did not work that
week and did not talk to Barµett that day because he was at
a hospital with his mother.
Respondent's roof control plan contains the requirement that four
turn posts be set after completion of the second cut. The inspector's
testimony that these timbers had not been set was effectively refuted
by that o.f Delbert Parks and David Hyatt, the foreman in charge of the
section on the morning in question. Both testified that they observed
four turn posts set as required. It is possible that the turn posts
were obscured from view by the line brattice or by the check curtain
which were hung on the timbers installed in the area.
Respondent's roof control plan requires that breaker posts be set
in the area of the third sequential cut before starting wing extraction. The testimony of Respondent's witnesses established that the
hole in the wing leading to the gob was caused by a "bump" or sudden
bursting of the pillar wall. The hole had not been cut by the Respondent. The inspector's assertion that it was a circular hole approximately 3 feet in diameter and that it began 1-1/2 feet above the floor
is rejected. The hole was approximately 3 feet long by 4 inches wide.
Respondent did not attempt wing extraction out of sequence.

1373

Respondent did not violate its roof control plan or section
75.200 as alleged in Order No. 253998.
Underlying Citation
Citation No. 253245 was issued by inspector Joseph Barnett on
September 5, 1978, during the course of a regular mine inspection.
The inspection party included a representative of the UMWA and two
members of Respondent's safety department, Delbert Parks and Richard
Wooten. This group arrived at the 18 Left Section at approximately
8:45 a.m. At that time, the entire crew on the section was setting
timbers. The inspection party proceeded up the shuttle car roadway
to the working place, which was located in the 13 pillar space.
There, the inspector noted what he believed to be a violation of
30 CFR 75.200. He alleged that the following condition or practice
existed:
The approved roof control plan was not being followed
in that the roadway leading to the No. 13 and 14 pillar
splits was not timbered down to meet the requirement of
the plan (16 to 20 feet wide and no additional roof supports were added) in the 18 Left Section.
The inspector issued a citation pursuant to section 104(d)(l) of
the Act, thereby indicating a finding that the alleged violation was
caused by an unwarrantable failure of Applicant to comply with the
cited safety standard. He also found that the violation was significant and substantial.
Respondent's roof control plan requires that roadways outby
pillars which are being mined be limited to a width no greater than
18 feet. If the roadway exceeds 18 feet, at least one row of posts
are required to be installed so as to limit the width to 16 feet. The
widths of two specific areas of roadway are at issue here: the first
of these is that portion of the roadway which extended for one pillar
outby No. 13 pillar (hereinafter, the roadway between pillars B and
C), and the second is that portion which was immediately adjacent to
pillar No. 13 (hereinafter, the roadway between pillar No. 13 and
pillar C). The inspector issued Citation No. 253245 after taking
several measurements in these two areas of roadway. At one point, the
inspector testified that he took a total of six to nine measurements.
Under cross-examination, he admitted that he had no specific recollection of the exact number of measurements taken.
The inspector testified that the roadway between pillars B and C
was up to 20 feet in width. Delbert Parks took a total of some
15 measurements in this area and achieved different results. He found
that the width of the roadway varied for the most part from 16 to
17-1/2 feet. At its widest, the roadway was only 18-1/2 feet. At
that point, th,~ continuous miner had taken a 4- to 6-foot long "nick"
out of the rib.

1374

The inspector also testified that the roadway between pillar
No. 13 and pillar C was up to 19 feet in width. Respondent's section foreman testified that this section of the roadway was within
the 18-foot maximum.
The inspector testified that he examined the preshift-onshift
examination record book for September 5, 1978, before he went underground that morning, and he observed therein an entry which noted
the need to post a. pillar split on the 18 Left Section. The inspector claimed to have made a notation on that particular page. Under
cross-examination, he was confronted with a copy of the page. It
contained neither the notation he claimed to have made nor any indication of a need to post the pillar split.
United States Steel Corporation submitted Proposed Findings of
Fact to the effect that:
Inspector Barnett, the duly authorized representative
of the Secretary, who conducted the inspection of Gary
No. 14 mine on September 5, 1978, testified (1) that he
examined the preshift book before going underground and that
the fireboss had recorded therein that No. 13 pillar split
in 18 Left section needed safety posts; when in fact, there
was no such entry in the fireboss book (2) that Gary No. 14
·Mine operated three production shifts daily; when in fact,
the mine operated two production shifts and one construction
shift daily (3) that Delbert Parks and Richard Wooten, members of the company safety department, and Buchanan, a UMWA
. safety committeeman, accompanied him underground; when in
fact, Buchanan was not there but a UMWA representative named
Walters was in the group.
The mine did not operate between August 30 and
September 5, 1978, beca,1se of a shortage of railroad cars
and the Labor Day holiday. The night shift was a construction shift so the day shift on September 5 was the first
production shift since August 30. The production crew
assigned to 18 Left section entered the mine about
30 minutes before Barnett entered the mine. On arrival at
the section, Foreman White examined the working places prior
to energizing equipment. White discovered that, at the
remaining push block at No. 13 pillar where he planned to
begin mining, the bottom was wet and muddy and several
timbers were laying in the mud. It appeared likely that the
continuous miner had knocked the timbers out as it backed
out of the working place because the area was steeply
sloped, the timbers were skinned as though they had been
struck and there were prints on the roof caused by the timbers when they were installed and later dislodged. Mine
foreman Christian instructed White to clean the area of

1375

the.mud, water and coal before replacing the timbers. The
crew was hauling the ~ud and coal away in a shuttle car as
Barnett arrived at about 8:45 a.m., and had already begun
to reset the timbers. No mining had yet taken place on the
shift. Barnett sa~d that the area at the push block and
the roadway outby the block were too wide; Parks and White
disagreed. Barnett had made no comment about the roadway
width as he traveled along it to No. 13 pillar and took no
measurements then; White, Christian, and Parks traveled
along the roadway and observed nothing unusual about its
width or the condition of the roof. The roof support plan
provides for roadways 18 feet wide, but requires that if
said width is exceeded, a row of posts must be installed to
limit the width of the roadway to 16 feet. Parks and Wooten
took between 12 and 15 measurements along the roadway. All
measurements were less than 18 feet except at one location
where a nick in one.rib resulted in a width of 18-1/2 feet.
Barnett testified that he and Buchanan took six measurements
along the roadway and found a width up to 20 feet; in fact,
Buchanan was not there and Barnett took no measurements.
Parks drew a yellow chalk line designating a width of
16 feet along the roadway. After a row of timbers was
installed along the chalk line, it wa~ not possible to walk
between the rib and the row of timbers. The ribs were fairly
straight. Generally the mine has good roof conditions; particularly, in 18 Left section the ribs were not sloughing
and the rib rolls did not present a hazard there.
These proposed findings are accepted as additional findings of
fact with the exception of Applicant's assertion that Inspector
Barnett took no measurements. There is no evidence that the inspector
did not testify truthfully and accurately to the best of his recollection in this proceeding. The inspector could have been mistaken
in his belief that the mine operated three production shifts daily
and, considering the large number of mines inspected, there was obviously room for honest error in attempting to recollect the names of
persons accompanying the inspector and in attempting to reconstruct
all of the notations that had been made in fireboss books. The difficulty in making measurements across the roadway accurate to within
a few inches with no means to ascertain that the tape was perpendicular to the ribs was also obvious. In addition to the possibility
that the measurements were not made in a manner to record the shortest distance across the roadway, there was the possibility that the
measurements were made in the area of small nicks or even from nicks
on each side, Although the ribs were fairly straight the record
indicates that there was at least one large nick.
Some of the uncertainty as to the measurements and the method by
which they were taken might have been eliminated if the conditions
alleged by the inspector had been pointed out to the operator's

1376

representative at the time the inspector took his measurements.
The results could have thereby been verified and any differences
as to places and methods of taking measurements might have been
reconciled by discussions between the parties.
The inspector's testimony with respect to the distance between
pillar No. 13 and pillar C is suspec~. The only measurement of width
dLscussed by him in any detail was 16 feet. He did not identify the location of the 19-foot width. Moreover, his recollection of the
extent to which pillar No. 13 had been mined was in error. He testified that only the first cut had been taken from the pillar. In fact,
the pillar had been split and its wing extracted. Only the push
remained.
The inspector's conclusion that this part of the roadway was too
wide is further undermined when note is taken of the efforts required
for abatement. Delbert Parks testified that posts were set only in
the ~oadway between pillars Band C. The testimony of Respondent's
witnesses is persuasive. The roadway in question exceeded the 18-foot
maximum width requirement only in the area of the "nick."
The inspector's conclusion that unwarrantable failure existed on
the part of Respondent had two bases, both of which are rejected here.
He testified that the condition was visually obvious an<l, therefore,
should have been observed by the section foreman. As noted above,
the roadway was no more than 6 inches too wide for a distance of 4 to
6 feet. The amount by which the width exceeded the 18-foot requirement and the distance for which it did so will not support an inference that the condition was visually obvious.
The inspector had concluded that the operator had actual knowledge of the condition as evidenced by an entry in the preshift-onshift
examination record book to the effect that further posting was needed
on the section. As noted above, no such entry had been made.
The inspector also noted that the condition was abated by 11 a.m.
that same morning and that Respondent took extraordinary steps to gain
compliance by assigning the entire crew to correct the situation.
The record will qot support a finding of unwarrantable failure
on the part of Respondent. Citation No. 253245 was not properly
issued under section 104(d) of the Act.

1377

ORDER
The application for review is GRANTED and Order No. 253998,
issued November 22, 1978, is hereby VACATED.

Forrest E. Stewart
Administrative Law Judge

Distribution:
Billy M. Tennant, Esq., United States Steel Corporation, 600 Grant
Street, Pittsburgh, PA 15230 (Certified Mail)
David F. Barbour, Esq., Office of the Solicitor, MSHA, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)

1378

FEDERAL MINE SAFETY ANO Ht::ALTH REV!EW COMMISSSON
.

.

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

SEP

·

·

? C 197~

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

Civil Penalty Proceeding
Docket No. WEVA 79-31
. A.O. No. 46-01478-03014

v.

:

Sewell Underground Mine
No. 1 Mine

SEWELL COAL COMPANY,
Respondent
DECISION AND ORDER DISMISSING PENALTY PETITION
On January 15, 1976, the operator was cited for. failure to provide
a canopy on a Galis 300 roof bolting machine in use in the 012 section
of the Sewell No. 1 Mine. Due to the pendency of a petition for waiver
of the requirement, the time for abatement was repeatedly extended
until the section was abandoned on September 28, 1978.
On January_ll, 1979, a proposed order of assessment issued assessing
a penalty of $295.00 for the violation of 30 C.F.R. 75.1710-l(a)
alleged. On April 28, 1979, the petition for waiver of the canopy
requirement was granted on the ground that the minimum mining height
of 4fr inches in the 012 section was inadequate to permit use of a canopy
on the Galis roof bolter without diminishing the safety of the miners.
Sewell Coal Company v. MSHA, Docket No. M 76-131, 44 F.R. 48383,
August 17, 1979.
On April 26, 1979, the operator was cited for failure to provide
a canopy on a Joy 16SC shuttle car in use in the 014 section of the
Sewell No. 1 Mine. The citation notes that the "minimum height of
the coal seam was 43 inches." The notice of abatement states that on
September 19, 1978, the Joy shuttle car was replaced with another
shuttle car "which had a proper canopy."
On January 11, 1979, a proposed order of assessment issued
assessing a penalty of $305.00 for the violation of 30 ~.F.R. 75.1710-l(a)
alleged. On April 28, 1979, a petition for waiver of the canopy
requirement on all Joy 16SC shuttle cars in use in the Sewell No. 1
Mine was granted wherever the minimum mining height did not exceed
48 inches. Sewell Coal Company v. MSHA, supra.

117Q

On April 5, 1979, the Secretary through his Regional Solicitor
in Philadelphia, Pennsylvania filed a petition for assessment of civil
penalties for the two canopy violations charged. Thereafter the matters
were assigned to Judge Littlefield who retired on July 1, 1979. After
reassignment the presiding judge issued a notice of hearing and pretrial
order. In response, the parties' filed a motion to approve settlement
on August 24, 1979 in the amount of $25.00 each and a total of $50.00
for the two can·opy violations charged. The motion made no reference
to the decision of April 28, 1979 on the petition for waiver of the
canopy requirement but did state "the use of canopies on Galis drills
had caused injuries to employees performing tramming operations." It
was further represented that "At the time of the inspection, no cab or
canopy was commercially available for Respondent's use on a shuttle
car working in 43 inch high coal."
Based on the undisputed facts of record, I find that on the dates
the aforesaid notice and citation issued compliance with the "improved"
mandatory safety standard set forth in 30 C.F.R. 75.1710-l(a) was
impossible without diminishing the safety of the miners and depriving
them of the protection afforded by section 318(i) of the mandatory
safety standards, 30 U.S.C. § 878(i). I further find that for the
reasons set forth in the attached Memorandum Opinion the Secretary's
failure to comply with the mandatory safety standard set forth in
section 318(i), 30 U.S.C. § 878(i) of the Mine Safety Act has deprived
the miners of the protection afforded by that standard and thereby
rendered null, void and unenforceable the "improved"mandatory safety
standard set forth in 30 C.F.R. 75.1710-l(a).
Accordingly, it 1s ORDERED that the parties' motion to approve
settlement be, and hereby is; DENIED
the captioned petition DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
H. Harris, Regional Solicitor, David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 3535 Market Street, Room
14480, Philadelphia, PA 19104 (Certified Mail)

~arshall

Gary W. Callahan, Esq., The Pittston Coal Company Group, Sewell
Coal Company, Lebanon, VA 24266 (Certified Mail)

1380

F.EDERAL MINE SAFETY AND C--HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW .JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 2 0 1979
SECRETARY OF.LABOR,

Civil Penalty Proceeding

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEVA 79-31

Petitioner

A~C.

No. 46-01478-03014

v.
·Sewell No. l Underground Mine
SEWELL COAL COMPANY,

Sol. No. 5672 Mine
Respondent
MEMORANDUM OPINION

This opinion is filed to set forth the Presiding Judge's views
with respect to his dismissal of the captioned petition on the ground
that the improved mandatory safety standard (30 CFR 75.1710-l(a))
relating to the use of canopies on electric face equipment is null,
void and unenforceable.

Since invalidity of a standard deprives the

Secretary and the Commission of subject matter jurisdiction, the Presiding Judge may, ~ sponte, take notice of the jurisdictional
defect.
I

The overriding purpose of the Mine Safety and Health Act,
30 U.S.C.

§ 801 et~.,

as amended, is to reduce and redistribute

1381

the human costs incident t_o producing coal to fire the engine of the
.modern American industrial machine.

As Orwell noted:

Our civilisation * * * is founded on coal, more compietely than one realises until one stops to think about it.
The machines that keep us alive, and the machines that make
the machines, are all directly or indirectly dependent upon
coal. In the metabolism of the Western world the coal-miner
is second in importance only to the man who ploughs the
soil.· He is a sort of grimy caryatid upon whose shoulders
nearly everything that is not grimy is supported. For this
reason the actual process by which coal is extracted is well
worth watching, if you ge.t the chance and are willing to
take the trouble. [Emphasis in original.]
G. Orwell, The Road to Wigan Pier, 31 (Berkeley-Medallion, 1963, first
published in England in 1937).
Having finally taken the trouble, Congress in 1969 passed the
Federal Coal Mine Health and Safety Act and under Titles I and III
thereof established certain minimum mandatory safety standards, "to
protect the health and safety of coal miners, and to combat the
steady toll of life, limb, and lung, which terrorizes so many unfortunate families."

H. Rep. No. 91-563, 9lst Cong., 1 Sess. 2,

reprinted in [1969], U.S. Code Cong. & Admin. News 2503. 1/
1/ "Yet despite this considerable Congressional attention, our nation
still experiences deaths and serious injuries in our-mines at a rate
which casts shame on an advanced, industrialized society. Every working day of the year, at least one miner is killed and sixty-six miners
suffer disabling injuries in our nation's mines." S. Rep. ·95-181,
95th Cong., 1 Sess. 4 (1977).
Coal mining has never been a safe occupation, nor is it safe
today. Statistics show 91,662 coal miners were killed between 1906
and 1976. If coal mining is considered a means of waging industrial
war, it would rank third in the number of dead behind World War I and
World War II.
Between 1930 and 1976, coal miners sustained more nonfatal disabling injuries than have all of America's soldiers in all of America's
principal wars between the Revolution and Vietnam.

1382

See United Mine Workers v. Kleppe, 532 F.2d 1403; 1405-06 (D.C. Cir.
1976), cert. denied, 429 U.S. 858 (1976).
As the same court later noted:
The part of th.e Act aimed at assuring the maintenance within
mines of appropriate health and safety conditions is built
around the concept of the mandatory standard. The legislative history reveals two competing concerns in the minds of
persons affected by the legislation, and the mandatory standard concept was adopted as a way of reconciling the apparapparent inconsistency. On the one hand, Congress' inability
to respond rapidly to changing conditions of knowledge and
technology made it desirable to create a power of amendment
at the agency level. On the other hand, strong fears were
voiced by representatives of both industry and labor that
a freely exercised power of amendment might result in an
unpredictable and capricious administration of the statute,
which would redound to the benefit of no one. [Emphasis in
original.]
The mandatory standard concept evolved to deal with
this dilemma combines a comprehensive set of "interim"
mandatory standards, promulgated by Congress, with elaborate consultative procedures for the formulation of additional "improved" mandatory standards. These Section 101
procedures, which may never be used to decrease the level
of protection afforded miners under an existing standard,
prescribe the precise manner in which the Secretary is to
promulgate the new mandatory standards. [Footnotes
omitted.]
Zeigler Coal Company v. Kleppe, 536 F.2d 398, 402-03 (D.C. Cir. 1976).
Returning to the theme of a Congressionally-mandated, irreducible,
minimum of protection, the court again emphasized that: :
-Recognizing also the need for conditions to improve with
scientific and technological advancement [Congress] established procedures by which existing standards could be
changed, but were careful to provide that the levels of
protection afforded miners may not be reduced below standards operative prior to amendment [citing Sec. lOl(b),
·30 U.S.C. Sec. 811 (b) (1969); Sec. 10l(a)(9) of the 1977
Amendments].
Id. at 408.

1383

Accordingly, I conclude that since the statute prohibits the Secretary from promulgating under the guise of an "improved" standar'd
one that decreases the level of protection afforded miners, any action
by the Secretary which results in such a diminution of protection is
null, void and unenforceable.

5 U.S.C. § 706(2)(C).

Indeed, as long ago as May 1977, the Interior Secretary'i delegate, the Board of Mine Operations Appeals, forecast a decision
invalidating the "improved" standard in question.

Thus, in upholding

a judge's decision finding that contrary to the intent of Congress,
enforcement of the "improved" standard diminished the safety of the
miners, the Secretary's delegate noted that:
(The record supports SOCCO's allegations of the following
elements of diminution of safety: excessive [equipment]
operator fatigue; the dangerous practice of operating
equipment from outside the operator's compartment; operators injuring their heads and other parts of their bodies
when they lean out of the equipment to see; running into
other miners who could not be seen; difficulties in stepping out of operators' compartments creating the danger of
being trapped in case of fire; jarring of operators' heads
against canopies lowered to provide clearance; and ma~1y
others.) The problem which we foresee, however, is that
excessive litigation will result from this decision. That
problem is minor though compared to the fact that the regulation involved will not do ju.stice to the apparent intent
of the statute the chief aim of which is to protect miners
in circumstances where protection is needed. We are using
the device of this Preface to express our hope that rule.making or some other administrative vehicle can be used to
eliminate the dual spectre ·of unnecessary and costly litigation and the prospective ineffectiveness of this
regulation.
·
Southern Ohio Coal Company, 7 IBMA 331, 355-356 (1977).

1384

Despite these well-founded qualms, the Board, as a creature
of the Secretary, shrank from the responsibility of declaring the
".improved" standard invalid.

With the advent of the new and indepen-

dent Federal·Mine Safety and Health Review Commission on March 9,
1978, however, it is clear that the Presiding Judge has such jurisdiction and authority. '!:_/

Congress clearly did not intend the

Commission to rubber-stamp violations of invalid standards.
It is true that under section lOl(d), 30 U.S.C. § lOl(d) of the
amended Act, Congress has authorized direct review in courts of
appeals of improved standards "promulgated under" the new section 101.
Furthermore, the period for filing such a review is limited to 60 days
after promulgation.

Here, the "improved" standard was issued on

October 3, 1972, at a time when the limited, preenforcement direct
review of section lOl(d) did not exist.

Thus, unless section lOl(d),

together with its exclusivity provision is given retroactive effect,
it is clear that under established law the Presiding Judge has authority to pass on the _validity of the "improved" standard in question. '}_/

2/ Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548-551
(3d Cir. 1976); Matter of Restland Memorial Park, 540 F.2d 626, 627628 (3d Cir. 1976); National Industrial Contractors v. OSHRC, 583 F.2d
1048, 1052 (8th Cir. 1978); Bituminous Coal Operators' Association v.
Marshall, 82 F.R.D. 350, 353-354 (D.D.C. 1979).
!/ See Secretary of Labor v. Penn Allegh Coal Company, PITT 78-97-P
(April 7, 1978), appeal pending. The legislative history states only
that the the validity of standards promulgated after March 9, 1978,
shall not be subject to collateral attack before the Commission.
S. Rep. 95-181, 95th Cong., 1st Sess. 20 (1977).

1385

It seems obvious, however, that for all of the policy reasons
advanced by the United States Court of Appeals for. the Third Circ·uit
in Atlantic & Gulf Stevedores, supra, section lOl(d) does not control
the question of the Commission's authority to consider the validity of
the "improved" standard in question in this case.

As noted, section

lOl(d) is inapplicable to this case since it is limited to improved
standards issued under the new section 101, effective March 9, 1978,
whereas the "improved" standard in question was promulgated on
October 3, 1972, 37 FR 20690, under the provisions of section 101 of
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 811
(1969).

It is also worth noting that section lOl(d) requires only

persons "·who may be adversely affected" to resort to its provisions.
Thµs, mine operators who were not in business during the 60-day
period or who had no reason to believe they were aqversely affected,
may eventually be faced with enforcement proceedings in which they
find it necessary to challenge the validity of "improved" standards
issued before 1978.

Section lO(b) of the APA, 5 U.S.C. § 703 provides

that "[e]xcept to the extent that prior, adequate, and exclusive
opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for
judicial enforcement.''

This provision, passed in response to the

Court's decision in Yakus v. United States, 321 U.S. 414 (1944),
requires the courts to determine in each case whether Congress, by
establishing a special review procedure, intended to preclude or to
permit judicial review of agency action in enforcement proceedings.
Attorney General's Manual on the APA, 100-101 (1947).

1386

More recently~ the Suprene Court held that an exclusivity provision
does not preclude the courts from determining whether a particular
administrative regulation was properly designated as a standard
falling within that provision.

As the court noted, in an enforcement

proceeding the Government has the. burden of showing that a standard
claimed to be subject to a preclusion and exclu.sivity provision is
the type of standard Congress intended to exclude f.rom judicial
review.

Adamo Wrecking Co. v. United States, 434 U.S. 275, 282-285

(1978).

Consequently, if the effect of 30 CFR 75.1710-l(a) is to

reduce the protection afforded the miners by the mandatory safety
standard set forth in section 318(i) of the Mine Safety Act, 30 U.S.C.
§ 878(i), it follows that the canopy requirement is not properly

designated an "improved standard."

It seems likely, therefore, that

the courts will strictly construe the exclusivity provision so as to
avoid invalidation on constitutional grounds. !±_/

!±_/

As the court in Atlantic & Gulf Stevedores, supra , noted an
exclusivity provision--in effect a binding 60-day statute of limitations--may be unconstitutional since it would subject citizens to
fines, penalties, and imprisonment for violations of standards that
would otherwise be declared invalid and unenforceable. Id. at 550.
Furthermore, because the prohibition is largely unqualified, it
may be unconstitutional on its face. As Mr. Justice Rutledge noted
in his dissent in Yakus v. United States:
"Once it is held that Congress can require the courts criminally
to. enforce unconstitutional laws or statutes, including regulations,
or to do so without regard for their validity, the way will have been
found to circumvent the supreme law and, what is more, to make the
courts parties to doing so. This Congress cannot do.
"* * * The idea is entirely novel that regulations may have a
greater immunity to judicial scrutiny than statutes have, with respect
to the power of Congress to require the courts to enforee them without
regard to constitutional requirements. At a time when administrative
action assumes more and more of the law-making function, it would seem
the balance of advantage, if any, should be the other way.
"* * * Clearly Congress could not require judicial enforcement of
an unconstitutional statute. The same is true of an unconstitutional
regulation." 321 U.S. 414, 468-469 (1944).
1387

Constitutional questions aside, to the extent the exclusivity
provision precludes administrative oversight of the Secretary's l.awmaking function by an independent commission, it may be politically
unwise-if not downright pernicious.

He is no friend of the adminis-

trative process who would immunize the vast and powerful lawmaking
authority of an administrative bureaucracy such as the Labor Department from close scrutiny by both the administrative judiciary and
ultimately the Article III courts.

If the rule of law is to be

upheld and is to be made meaningful, the citizen must be afforded
the fundamental right to challenge lawless action at any time
enforcement threatens to deprive him of his life, liberty or
property.
II

Section 318(i) of the mandatory safety standards, 11 30 U.S.C.
§

878(i) (1969), requires that all features of electrically-operated

equipment taken into or used inby the last open crosscut must be
designed, constructed and installed, in accordance with the specifications of the Secretary (1) to assure that such equipment will not
cause a mine fire or explosion, and (2) to prevent to the greatest
5/

Section 30l(a) of the.Act, 30 U.S.C. § 86l(a) (1969), states:
11
• [ t]he provisions of sections 302 through 318 of this title shall
be interim mandatory safety standards applicable to all underground
coal mines until superseded in whole or in part by improved mandatory
safety standards promulgated by the Secretary under the provisions of
section 101 of thisAct * * *·"
The Act provides the Secretary no exemption from compliance with
mandatory standards.

1388

extent possible other accidents in the use of su~h equipment.

In

addition, the standard provides that:
The regulations of the Secretary or the Director of
Bureau of Mines in effect on the operative date of
this title relating to the requirement of investigation,
testing, approval, certification, and acceptance of such
equipment as permissible shall continue in effect until
modified or superseded by the Secretary * * *
t~e

Pursuant to this authority, the Secretary continued in effect
regulations relating to the construction, design and installation of
the electrical features of face equipment, including electric motordriven or self-propelled mine equipment and access.ories, 30 CFR
18.20 through 18.52, ~/ but never issued regulations relating to the
design, construction or installation of cabs or canopies.
Instead, the Secretary· invoked the section 101 proce.dures to
issue an "improved" standard 30 CFR 75.1710-l(a) under section 217(j)
of the mandatory standards, 30 CFR 75.1710, 30 U.S.C. § 877(j) (1969).
Section 317(j) provides:
An authorized representative of the Secretary may
require in any coal mine where the height of the coalbed
permits that electric face equ~pment, including shuttle
cars, be provided with substantially constructed canopies
or cabs to protect the miners operating such equipment
from roof falls and from rib and face rolls.

6/ These regulations require that the electrical features of selfpropelled electric face equipment consist of "intrinsically safe
circuits" and that such equipment be "safe for its intended use. 11

1389

Ignoring the requirements of section 318(i), the Secretary promulgated 30 CFR 75.1710-l(a) under the guise of an "improved"
·standard.

This regulation delegated to mine.operators and equipment

manufacturers responsibility for the design, fabrication and installation of canopies on their existing oversized electric face equipment.
37 FR 20689-90.

At no time, has the Secretary promulgated specifica-

tions for the design, construction and installation of cabs and canopies which require the canopies provide for the safety and comfort of
the equipment operators. ]_/

At no time, has the Secretary required

manufacturers of mining equipment to design, construct and install
canopies "with the safety of the [equipment] operator as the prime
requisite."!/

At no time, has the Secretary required operators to

purchase equipment of a size compatible with the safe use of canopies.

In fact, it is the position of the Solicitor that the existing

"improved" standard does not require an operator to replace his existing oversi=ed equipment with lower profile equipment compatible with the safe use of canopies. 9/
]_/ See Southern Ohio Coal Company, 8 IBMA 55, 57 (1977), reconsideration denied. As to Secretarial findings regarding the availability
of canopy technology, the Board stated:
"The Secretary did not find that practical technology is available. to design and construct a canopy for installation on selfpropelled electric face equipment such as would resu~t in no diminution of safety in any mine, and logically he could not. * * * [A]
Secretarial finding that technology exists to install substantially
constructed canopies to protect miners from nonmassive roof falls
is of no value where the question is whether technology exists for
the installation of canopies which do not otherwise diminish safety
in that mine. 11 (Emphasis in original.) Id. at 57.
8/ Robert E. Barrett (former Administrator, MESA), Special Study on
Cabs and Canopies, 5 (August 15, 1975).
2._/ See Florence Mining Company, et al. v. MESA, M 76-115, ~al.
56-62 (October 31, 1977). This decision became final for the Department of the Interior when the Solicitor withdrew MESA's appeal to the
Board of Mine Operations Appeals on December 13, 1977.

1390

While the Secretary argues that he is at liberty to "ignore" the
requirements of section 318(i) and to "choose" to delegate his
r.esponsibility for the design, construction and installation of safe
canopies to the mine operators, I can find no warrant for this construction in the Act or its legislative history.

Instead, I find

that as applied to this operator and others similarly situated, the
"improved" standard promulgated as 30 CFR 75.1710-l(a) diminishes
the safety of the miners below that contemplated by the mandatory
standard set forth in section 318(i).

On this. showing it follows

that the "improved" standard, both on its face and as applied, is
invalid under section 10l(a)(9) of the Act, as amended. 10/
In June 1976, after 4 years of experience with the "improved"
standard, the Secretary extended the timetable for installation "in
order to permit development of additional technology on cab or canopy
design in conjunction with accomplishing equipment design changes to
adapt cabs or canopies * * *" in mining heights under 42 inches.
41 FR 23199 (June 9, 1976).

In July 1977, a year later, the canopy

program was indefinitely suspended in mining heights under 42 inches
due, in part, to the admitted and persistent lack of feasible solutions to the human engineering problems encountered when mine operators ~ttempted to retrofit canopies on both new and existing
equipment.

42 FR 34876-77 (July 7, 1977).

10/

Section lOl(b) (now section 10l(a)(9)) provides:
"No improved mandatory health or safety standard promulgated
under this title shall reduce the protection afforded miners below
that provided by any mandatory health or safety standard."

1391

III

The Secretary's abdication of his statutory responsibility
has resulted in the development of an ad hoc research and development program which harasses coal operators and makes guinea pigs
out of miners who are forced to work under canopies which are
untested. _!!/
Nevertheless, the Secretary has attempted to justify abdication
of his responsibility by claiming that because -the mine safety hws
are to be construed as "technology forcing," the mine operators may

11/ Testimony in modification cases as to the burdens placed upon
the ope~ators and the hazards to which miners are exposed is voluminous. See Florence Mining Company, et ~l. v. MESA, M 76-115 et al.
(October 31, 1977);.Bishop Coal Company, et al. v. MESA, M 76-13,
et al. (December 16, 1977), appeal pending; Penn Allegh Coal Company
v. MESA, M 76-27 (June 15, 1977), appeal pending; Southeast Coal Com~ v. MESA, M 76-33 (May 4, 1977), appeal pending; Southern Ohio
Coal Compani v. MESA, M 76-349 (October 29, 1977), affirmed as modified, 7 IBMA 331 (May 23, 1977), reconsideration denied, 8 IBMA 55
(June 30, 1977). A description of the ad hoc compliance procedure. is
contained in Robert E. Barrett, Special Study on Cabs and Canopies
(August 15, 1975), and in a memorandum from the Deputy Assistant
Administrator, dated July 11, 1977, which establishes guidelines for
the granting of extensions of any 104(b) notices (104(a) citations
under the 1977 Act) if the coal operators demonstrate good faith
attempts to install canopies on some pieces of equipment on some
sections of some mines.

1392

be forced to bear the burden of research, experimentation, design,
fabrication, construction, and installation of cari:opies. 1J:_/
A_ccepting as true that the Act is intended to be technology forcing,
the cases previously cited by the Secretary do not support his argument. 13/
12/ Neither former Administrator Barrett nor the Secretary is unaware
of the meaning and force of section 318(i). In his Special Study on
Cabs and Canopies, page 9, Mr. Barrett recommended that all equipment
manufacturers should be put on notice that MESA will strictly enforce
section 318(i). In the most recent suspension of the canopy requirements, the Secretary observed:
11
[M]ine operators have been forced to attempt to retrofit new
equipment, which in many cases involves major changes and alterations
in the design of the operator's compartment and the machine to resolve
human engineering problems. To meet and correct this situation, MESA
is developing specifications for cab and canopy compartment configurations for new mining equipment pursuant to section 318(i) of the [1977
Act]." 42 FR 34877 (July 7, 1977).
I take this to mean that equipment manufacturers eventually will
be required to construct equipment according to·human engineering
specifications established by the Secretary; that this equipment will
bear a plate certifying that it is 11 permissible 11 ; and that operators
will not be permitted to use equipment not bearing a permissible
plate. It is to be hoped that the Secretary will also specify on the
permissible plate the minimum mining height in which the particular
piece of equipment plus canopy may be used with safety.
QI See Chrysler Corporation v. Department of Transportation,
472 F.2d 659, 675, 678 (6th Cir. 1972) (agency required to provide
objective criteria for testing newly-developed technology as well as
objectively defined performance criteria for automobile manufacturers
required to develop and install "airbags"); Society of the Plastic
Industry v. OSHA, cert. denied, 421 U.S. 992 (1975), 509 F.2d 1301,
1309-1310 (2d Cir. 1975) (small numbers of vinyl choloride and polyvinyl chloride manufacturers required to utilize existing innovative
technologies to reduce exposure to carcinogens). Both AFL-CIO v.
Brennan, 530 F.2d 109 (3d Cir. 1975), and HUD v. Hodgson, 4~F.2d
467 (D.C. Cir. 1974), held that the Occupational Safety and Health
Act is technology forcing~ But neither states that a regulation
promulgated in the guise of forcing technology is valid per se.
If the Secretary had heretofore imposed on mine equipment manufacturers the responsibility for developing, designing and constructing canopies under section 318(i), the regulatory scheme might
well be deemed technology forcing. However, delegating-the research
and development responsibility to each coal operator is analogous to
the Secretary of Transportation requiring car dealers, not manufacturers, to develop, design and install airbags. Car dealers would
not--and coal operators do not--have the requisite research and
development resources.

1393

The ultimate poverty of the Secretary's "technology-forcing"
argument is revealed in a recent holding of the Third Circuit.

In

American Iron and Steel Institute et al. v. OSHA, 577 F.2d 825
(3d Cir.

1978) (Petition for Certiorari filed December 9, 1978),

the steel industry claimed, inter alia, that a regulation requiring
employers to "research, develop and implement any other engineering
and work practice controls necessary to·reduce exposure" to coke
oven emissions, was unauthorized by the Occupational Safety and Health
Act.

Over the Secretary's argument that the requirement was valid as

"technology forcing, 11 the court held:
29 U.S.C. §665(b)(5) grants authority to the Secretary
to develop and promulgate standards dealing with toxic
materials or harmful agents "based upon research, demonstrations, experiments, and such other information as may
be appropriate." Under the same statutory provision the
Secretary is directed to consider the latest scientific
data in the field. As we have construed the statute, the
Secretary can impose a standard which requires an employer
to implement technology "looming on today's horizon," and
is not lmited to issuing a standard solely based upon technology that is fully developed today. Nevertheless, the
statute does not permit the Secretary to place an affirmative duty on each employer to research and develop new
technology. Moreover, the speculative nature of the
research and development provisions renders any assessment
of feasibility practically impossible. In holding that the
Secretary lacks statutory authorization to promulgate the
research and development provision, we note in passing that
we need not reach petitioners' challenge to the provision
as fatally vague. Accordingly, we hold the research and
development provision of the standard to be invalid and
'unenforceable. [Emphasis supplied.]
Id., 577 F.2d at 838. 14/
14/ The Secretary of Labor did not seek review.of this holding.
The pertinent language of 29 U.S.C. § 665(b)(S) tracks the language
of section lOl(c) of the 1969 Act; section 10l(a)(6)(A) of the
1977 Act.

1394

As I have stated above, the Federal Coal Mine Health and Safety
· Act of 1969 and its successor place an affirmative obligation on the
Secretary to conduct the research necessary to ensure that the standards he promulgates enhance, rather than decrease, the level of protection afforded the miners.

Like the Occupational Safety and Health

Act, the 1969 and 1977 Mine Safety Acts.do not permit the Secretary
to place an affirmative duty on each operator to research and develop
new technology.

The Secretary recognizes that workable and safe

canopy technology looms on some future horizon, not today's. }J_/
Thus, the regulation at issue which requires each operator to conduct such research and development--and thereby places miners at
risk--is beyond the authority of the Secretary to promulgate and
must be deemed invalid and ~nenforceable.

15/ See 42 FR 34876 (suspension of canopy requirements); Southern
Ohio coal Company, 7 IBMA 331, 355-356, reconsideration denied,
8 IBMA 55, 57 (1977).

1395

FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION
.

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

SEP 2 1 1979

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

Civil Penalty Proceeding
Docket No. BARB 79-152-P
A.c. No. 40-01172-03001

v.
No. 1 Strip Mine
SEQUATCHIE VALLEY COAL CORP. ,
Respondent
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,

.u.s. Department of Labor, for Petitioner;

William C. Myers, Esq., Stophel, Caldwell & Heggie,
Chattanooga, Tennessee, for Respondent.
Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceeding was brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, ·30 u.s.c. § 820(a). The Mine Safety and Health Administration
(MSHA) filed a petition for the assessment of civit penalties on
December 12, 1978, alleging that Respondent committed violations of
30 CFR 77.403(a), 77.1605(a), 77.1109(c)(l), and two separate violations of 77.410. On January 24, 1979, Respondent filed its answer
contesting the violations;. A hearing was held on June 21, 1979, in
Chattanooga, Tennessee, at which both parties were represented by
counsel.
Citation No. 7-0002, February 8, 1977
· Ev.idence was first received regarding Citation No. 7-0002
(February 8, 1977), which alleged a violation of 30 CFR 77.403(a).
The condition or practice cited by the inspector is as rollows:
"Roll protection structure was not provided for the Caterpillar
992 endloader, 1971 Model, SN 25K 542, at this mine." The regulation, 77.403(a), provides in pertinent part that: "[a]ll rubbertired or crawler-mounted self-propelled scrapers, front-end loaders,
dozers, graders, loaders, and tractors, with or without attachments,
that are used in surface coal mines or the surface work areas of
underground coal mines shall be provided with rollover protective
structures * * * "

1396

On the basis of the evidence presented, and in light of the
statu.tory criteria, a decision was made from the bench finding a violation of the standard and assessing a penalty of $25.. This decision
from pages 61-64 of the transcript, with some minor corrections, is·
set forth below:
In a case like this, I believe that I would be derelict
in my duties and obligations if I should find that there was
no violation, the principle reason being that the law does
place the burden upon the operator to know and comply with
the regulations. I believe that this was the intention.of
Congress; and it would be my obligation to follow that. Of
course, my further obligation would be to take into account
the circumstances and try to alleviate, if required, any
undue hardships that might possibly develop.
It is possible, of course, that the inspector had seen
this condition before when he had previously inspected this
mine. I believe his testimony was to the effect that he
didn't remember exactly the times that he had been there
before, and it's possible that other inspectors had been
there; but I believe the rule would be that the inspector
would not be held bound if he should miss a violation on
any particular occasion. Also, his explanation that he
became aware of this for the first time when he submitted
the number of the machine to determine the year seems
plausible to me; so I would accept that explanation.
Accordingly, I find that the failure as charged to have
the roll-over protection did violate 77.403(a).
Taking into account, then, the criteria as required by
law; and of which there will be at least three that will
apply not only to this alleged violation, but to others as
well, if they are found to be violations; and the first
would be the history of prior violations. My ruling would
be that there is not a significant history of past
violations.
Another applicable item: criteria as to the size of
the operator. My belief is that this is a small operator,
based on the tonnage mentioned, and I would so find.
And I believe it is also clear not only from the circumstances, but from the testimony, that the size of the
penalties here indicated would not affect the operator's
ability to continue in business.
As to this particular violation, I find that the operator achieved a rapid compliance in good faith in light of
the type of violation charged.

1397

So far as gravity is concerned, this can be a serious
violation under some circumstances because of the hazard
in a machine turning over. However, the inspector did
testify here that he saw no imminent danger, and further
believed it to be nondisabling due to the location. And,
at least, as I understand the ·testimony, there was not a
strong probability at this point of an injury. So, in
summary, I would find that it would be a small amount of
gravity or seriousness.
Negligence. Certainly, in a technical sense, the operator is held to knowledge of the requii:'eroonts; and in this
case, however, I would take into account the fact that
Mr. Studer did testify that he was not aware of these 1974
amendments and I believe, therefore, that this would be a
mitigating circumstance.
The assessment of the penalty was $38.00, and the Secretary has indicated that he believes, because of the
seriousness, it should be a higher penalty even than that.
From my ordinary experiences, this does not seem to be a
very high penalty to me; however, I have already indicated
that I believe the gravity here is small in this particular
circumstance, and I have taken into account that -- the
smaller degree of negligence.
Furthermore, in this matter the notice was issued more
than two years ago. It's my view that it's not so much the
idea of a penalty that's involved here as i t is to change
the practice which might lead to the hazard; and that was
done, and this is all past history. And in these circumstances, I conclude and find that a penalty of $25.00
would be adequate. That would be my assessment for this
violation.
The above bench decision and assessment are hereby AFFIRMED.
Citation No. 140056, April 13, 1978
Thereafter, the parties agreed to stipulate as to the fact of the
violation set forth in Citation No. 140056 (April 13, 1978), and the
correctness of the assessment if a violation should be found. The
·condttion asserted was that " [ t]he front windshield was shattered on
the Fiat .Allis Model 745-4B Company ff L2 being used at this mine."
The citation alleges a violation of 30 CFR 77.1605(a) which provides
that: "[c]ab windows shall be of safety glass or equivale~t, in good
condition and shall be kept clean."
Although stipulating to the fact of the violation, Respondent
raised a defens.e as to the validity of the inspection in which the

1398

citation was issued. This inspection was undertaken by the landing of
a helicopter at the mine site and Respondent contended that the place
of ·landing was unsafe because of its proximity to blasting operations. The record is fully developed on the helicopter landing and
the activities which were in progress at that time (Tr. 69-116). The
evidence showed that blasting was not actually taking place at the
moment of landing, so there was not an imminent danger. However, had
blasting been taking place, it could have put the helicopter in danger
(Tr. 116). Since both Petitioner and Respondent were concerned with
the safety aspects of the inspectors' helicopter landings, the parties
were directed to try to reach an understanding on such landings for
future inspections at this particular mine. Respondent was willing to
drop its contention of unsafe inspection practices by MSHA if it would
be allowed to designate an area in which helicopter landings could be
made safely and unannounced (Tr. 120). The inspector, Jerry McDaniel,
testified that in the circumstances such a designation would not
affect the element of surprise. The area designated would not change
so that inspectors would not have to call in advance to .determine its
location for landing. Because of the novelty of the proposal, the
Solicitor agreed to submit the matter to MSHA for its consideration.
Counsel was directed to report to the court within 30 days. On July 2,
1979, Respondent filed a copy of its letter to Petitioner Wherein it
designated specific areas for helicopter landings. It claimed that
"the designated areas will not prejudice the surprise factor in such
inspection." Thereafter, on August 2, 1979, Petitioner MSHA advised
the court and Respondent that in the future it will land its helicopters within the areas designated by the Respondent. Thus, this particular contention was resolved by mutual agreement. 1/
A bench decision was issued at the hearing·on the merits of the
violation, subject to reconsideration should an agreement not be
reached on the landing area. Such reconsideration has been rendered
unnecessary in light of the agreement referred to above. The following. decision appears on page 12~ of the transcript:
In view of the stipulations, my finding is that there
is a violation, and the penalty assessed is that which was
as.sessed by the Office of Assessments, namely, $18.00.
Since the parties have resolved the helicopter landing issue, I
hereby AFFIRM the above decision and assessment.
Citation Nos. 140377-140379, April 13, 1978
Following this decision, Petitioner and Respondent introduced
evidence on Citation No. 140377 (April 13, 1978), which alleges a
1/ I want to take this occasion to commend the parties and their
counsel for the anicable resolution of a sticky problem.

1399

violation of 30 CFR 77.410 stating that: "[t]he automatic reverse
alarm installed on the front-end loader SN 25 K 542 was not in
operating condition." That regulation requires that: "[m]obile
equipment, such as trucks, forklifts, front-end loaders, tractors
and graders, shall be equipped with an adequate automatic warning
device which shall give an audible alarm when such equipm:nt is put
in reverse." Evidence was also presented on Citation No. 140378
(April 13, 1978), which similarly alleges a violation of 30 CFR
77.410 for failure to have a reverse alarm on a grader. Finally
considered was Citation No. 140379 (April 13, 1978), which charges
a violation of 30 CFR 77.1109(c)(l) for the same machine, the grader,
for failure to provide a fire extinguisher. Section 30 CFR
77.1109(c)(l) provides: . "Mobile equipment., incuding trucks, frontend loaders, bulldozers, portable welding units, and augers, shall
be equipped with at least one portable fire extinguisher."
On the basis of the evidence presented, and in light of the
statutory criteria, a decision on these three remaining citations
was issued from the bench. That decision, with so~ corrections,
if'1 as follows:
In the violation regarding the loader, the charge was
that it did not have a backup alarm. The inspector testified that the men were not working at the time, but all the
evidence was, in his mind, that it had been working previously and that there was some kind of interruption in the
work. From all appearances, that machine was to go back
into operation. The mi.ner who operated the machine gave no
indication whatsoever that the machine was being taken out
of service for repair or was out of service. The indications were that it was to go back into operation.
I realize that Mr. Studer did testify that the machine
was out of service -- he understood or thought, at least,
for some kind of service repair. But I believe that, as I
view the situation, the circumstances suggest that it was
there in operation; it was an operational machine.
Now, it's true, I think that that alarm possibly could
have gone inoperational when it was sitting there, but that
seems to me unlikely. The machine operator was not aware
of when it was or was not operating or working. It seems
likely to me that it was not working previously while that
machine was functioning. So accordingly, I would find a
violation here of 30 CFR 77.410 on this loader.
I do that fully cognizant of the various comments and
arguments Respondent made that these [alarms] are somewhat
unreliable and that they can go out at any time, and I
recognize that in some circumstances this couid be a very

1400

harsh rule. I would take into account any indication that
it had been recognized that this was out of order and something was being done about it. I don't see that ~ind of
circumstance here in this one instance; so accordingly, I
would find a violation and will consider it in the criteria.
We have already taken into account certain other criteria
previously, and so I have to consider here only the three.
The matter was abated in good faith rapidly, . so I' 11 take
that into consideration.
Now, as far as the gravity is concerned, there were
other men working there. These backup alarms, it seems to
me, are extremely important to safety because they are the
alarm to anybody in back of the machine, and quite clearly,
its failure to operate could result in a serious injury.
As far as negligence is concerned, I will take into account
the various references to the fact that these alarms are
sometimes unreliable. I would take that fully into account.
So I find that -- in this particular case, at least, small
negligence; although there is some necessarily.
In light of that fact, I would reduce that penalty to
$30.00. So accordingly, that would be my finding as to the
assessment.
The other two violations as alleged are another 77.410,
which involves the lack of a backup alarm, and also a violation of 77.1109(c)(l), which is the alleged lack of a fire
extinguisher, also on the same grader. Now, on these two
violations, I'm going to bunch them together. I have a difficulty here. It's not that I don't think that the inspector could issue such notices and they should be sustained
if there is evidence -- it's not only his belief, of course;
but I think that the evidence should sustain his belief
that the machine was operational.
Now, this machine, I suppose, in one sense, is operational; but as I understand the testimony, the machine was
only used infrequently, perhaps once a month. In light of
the fact that it would be normal to inspect the machine
used so infrequently for the safety devices, it seems probable to me that before it was put into operation, that any
such deficiencies might be corrected. This is not to take
away from what the inspector did. I think he probably
acted reasonably and he acted on information which, ·as he
understood it, was given to .him by Mr. Studer. The only
way.I can reconcile this is that there was a misunderstanding between the two men as to what was said and as to what
Mr. Studer really intended to say. Mr. Studer testified
here today that the machine did have a backup alarm; that

1401

it was not operational; however., that the machine was not
in operation at the time and that the policy was that the
·alarm would be made operational. I don't know that this
is quite so clear with the fire extinguisher. [The inspector testified that Mr. Studer, the machine operator, said
there was not a fire extinguisher provided on it
(Tr. 155. )l
I have to agree that the testimony is somewhat in
conflict. It depends on precisely what Hr. Studer said
there. I would think -- we have no testimony on it; but
I would think i f the machine had the brackets, it would
be clear that when it was put into operation the fire
extinguishers would be put on it. But as I indicated, I
don't see the testimony being that clear; I just simply
can't resolve it that easily.
In the circumstances, since this was only an occasionally used machine, I'm just going to give the benefit
of the doubt in this instance to the Respondent. As I
say, in so ruling, I am not in any way indicating that I
believe that the inspector was wrong. He called it as he
saw it, and I am simply deciding on the basis of the
record, the testimony, and the evidence on both sides as
we now have it. And that would be my judgment, then, as
to both of those citations, that I would rule that the
evidence does not sustain the violations, and that
-accordingly, they should be dismissed; and I do hereby
dismiss them.
The decision above assessing a penalty of $30 in Citation No.
140377 and dismissing the petition as to Citation Nos. 140378 and
140379 is hereby AFFIRMED. Further, Citation Nos. 140378 and 140379
are hereby VACATED.
In SUllllI\ary, a finding of violation has been made regarding
Citation No. 7-0002 and a penalty of $25 assessed; violations found
in Citation Nos. 140056 and 140377 and penalties assessed of $18 and
$30, respectively; and the petitions for Citation Nos. 140378 and
140379 were dismissed and the citations vacated.
ORDER
It is ORDERED that Respondent pay total penalties of $73 within
30 days of the date of this decision.

d~.f),~
Franklin P. Michels
Administrative Law Judge

1402

FiEDERAL MINE SAFETY A.ND HIEA.lTti REVCEW COMMBSSBON
.

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

SEP 2 5 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. NORT 79-18-P
A/O No. 44-04823-03001

v.
No. 2 Mine
BETH ANN COAL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
AND
ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of I.:1bor, for Petitioner;
John R. Lark, Secretary-Treasurer, Beth Ann Coal
Corporation, Big Rock, Virginia, for Respondent.

Before:

Judge Cook

A petition for assessment of civil penalty was filed pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act)
in the above-captioned proce.eding. An answer was filed and a prehearing order was issued. Notices of hearing were issued setting the
above-captioned proceeding for hearing on the merits beginning at
2 p.m., June 27, 1979, in Abingdon, Virginia.
At the hearing counsel for the Petitioner appeared, h~wever, no
one appeared for the Respondent. During the course of a recess the
Administrative Law Judge conducted a telephone conference with counsel
for the Petitioner and Mr. Lark, who represented the Respondent. Both
parties then conferred and reached a settlement agreement. Thereafter,
at the hearing, counsel for MSHA informed the Judge that a motion
requesting approval of settlement would be filed. On July 6, 1979,
MSHA filed a motion requesting approval of settlement wherein it
requested that the Respondent be granted 90 days from the date of
appro.val in which to pay the agreedupon settlement figure. A complete
transcript of the hearing was filed on September 13, 1979.

1403

Information as to the six statutory criteria contained in section llO of the Act has been submitted. This information has provided
a full disclosure of the nature of the settlement and the basis for
the original determination. Thus, the parties have complied with the
intent of the law that settlement be a matter of public record.
An agreed settle.ment has been reached between the parties in the
amount of $590 .. The assessment for the alleged violations was $682.
The alleged violations and the settlement are identified as
follows:
Citation No.

Date

30 CFR
Standard

Assessment

Settlement

323139
323140
323141
323142
323143

04/26/78
04/26/78
04/26/78
04/26/78
04/26/78
04/26/78
05/25/78

75.313
75.523
75.516-2
75.703
75.604
75.ll07
75.604

$ 84
122
60
90
90
122
ll4

$ 84
87
25
90
90
100
114

32314!~

322390

As grounds for the proposed settlement, MSHA states, in part, as
follows:
1. As shown by the Inspection Report (Appendix A),
the No. 2 Mine was· operated by the Beth Ann Coal Corporation near Big Rock in Buchanon County, Virginia. The
mine had a daily production of approximately 200 tons of
marketable coal, one production shift, one employee on the
surface and six employees underground. The front side of
the Proposed Assessment (Appendix B) prepared by the MSHA's
Office of Assessments shows MSHA records had the corporation producing 50,878 tons of coal in 1978, of which the
mine produced a total of 12,500 tons of coal that year.
The mine and operator should be classified as small for
purposes of assessing a civil penalty.
2. During the telephone conversation on June 28,
1979, Mr. Lark explained*** that the coal in the ground
is owned or leased by one United Coal Company (formerly
Wellmore Coal Company), and the Beth Ann Coal Corporation
had contracted with United Coal Company to mine the coal
at a rate of so much money a ton. The Beth Ann Coal
Corporation is presently insolvent and has no cash flow.
The only means of obtaining money to pay the corporation
debtors is to have United Coal Corporation or one of its

1404

lessees operate the mine and reimburse Beth Ann for its
equipment. However, the anticipated equipment sale has
been delayed because there have been unforeseen delays in
preparing the mine so it can again produce coal. Based
substantially on the foregoing information, the Office of
the Solicitor agreed to reduce the civil penalties to the
amounts indicated above because larger penalties could
adversely affect the ability of the operator to remain in
business. * * *
3. The Office of Assessments reports there is no
history in that office of prior paid violations concerning
this mine.

*

*

*

*

*

*

*

5. Citation No. 323139 issued citing 30 CFR 75.313
because the methane monitor was inoperable on a cutting
machine.
Gravity: Both former inspector Roby R. Fuller and
present inspector Larry F. Clevinger appeared in the
courtroom and were interviewed by the undersigned
attorney concerning the issues posed by this proceeding.
Both inspectors agree that the mine has no history of
liberating methane. See also the issuing inspector's
statement, Appendix C, concerning this violation. Consequently, the gravity by reason of the inoperable methane
detector would be that some mines not known to liberate
methane have had methane ignitions. Both inspectors
agree that the chance of methane building to the 5% to
15% explosive range in this Eagle coal seam is unlikely.
The violation is nonser1ous.
Negligence: Appendix C (the inspector's statement)
shows the condition had been recorded in the book of weekly
examinations so the Respondent had information that the violation existed and continued to mine coal. The violation
is intentional or the same as gross negligence.
Abatement: The condition was abated within the time
provided by the inspe.ctor which demonstrates a normal degree
of good faith.
Penalty: The Office of Assessments proposed a civil
penalty of $84.00 (appendix B), and because the violation
is intentional the Office of the Solicitor would be
unwilling to reduce the amount of the penalty.

1405

6. Citation No. 323140 issued citing 30 CFR 75.523
because the panic bar on the roof bolt machine was
inoperable.
Gravity: A panic bar has saved lives. Nevertheless,
an emergency of some sort must occur before the panic bar
switch is needed. Furthermore, a roof bolting machine does
not travel fast or have much mobility. In fact, some roof
bolting machine models are not equipped with brakes because
such vehicles travel at such low speed. The need for a
panic bar is less on a roof bolter than on a shuttle car
or other faster, more mobile equipment. The violation is
serious since death or injury is possible as a result of
the condition. See the Inspector's statement concerning
this violation, Appendix D.
Negligence: The Inspector's statement, Appendix D,
notes that the roof bolt machine operator has some supervisory responsibilities. However, the operator of the
machine may not have had occasion to depress the panic
bar and he still would then not know it was not operable.
Abatement: The condition was abated within the time
provided by the Inspector which demonstrates a normal degree
of good faith.
Penalty: The Office of Assessments proposed a civil
penalty of $122.00 (appendix B), which the Office of the
Solicitor has agreed to reduce to $87.00 because the negligence is not well established and because of the financial
condition of the operator.
7. Citation No. 323141 issued citing 30 CFR 75.516-2
because the telephone wire was not hung on insulated hangers
in two places.
Gravity: The two inspectors are both electrical
inspectors and both agreed that a telephone wire never has
over 24 volts and usually has only six to nine volts. Thus,
although the mine is very wet there is no shock hazard
because of the low current. Since the mine does not liber· ate methane there is only a remote danger from that source
by reason of the wire on the mine floor. The violation is
nonserious.
Negligence: Inspector Roby cannot remember whether an
insulated hanger had been provided for the wire and the wire
had been knocked off or whether there never had been a hook
provided for the wire. Both inspectors agree that the wire
could have been knocked down suddenly without being observed.

1406

Although the negligence would be gross negligence if no
hanger had been provided, MSHA cannot prove that there was
any negligence involved in the violation.
Abatement: The violation was corrected within the time
provided which demonstrates a normal degree of good faith.
Penalty: The Office of Assessment proposed a civil
penalty of $60.00. The inspector's statement, Appendix E,
concerning this violation merely stated that the mine operator, Buford Hackney (a former HSHA inspector also), supervises some of the work--apparently the presumption would be
that if Mr. Hackney saw the wire after it fell there would
be an intentional violation. However, at a hearing MSHA
could not prove negligence since we do not know if hooks
were provided or when or what caused the wire to fall.
Thus, the Office of the Solicitor (considering the financial problems of the operator, the nonserious nature of
the violation, and the inability to prove negligence) will
settle for a civil penalty of $25.00.
8. Citation No. 323142 issued citing 30 CFR 75.703
because the roof bolting machine was no longer frame
grounded since the wire had broken.
Gravity: For there to be an electric shock some component in the roof bolting mrichine must first malfunction
because the frame ground wire is a backup protection.
However, as noted in the inspector's statement, Apendix F,
there is a possibility that a miner could receive a shock
as a result of this condition--especially since the mine
1.s wet.
Negligence: The condition would not be discovered
until the weekly electrical examination was made.
Abatement: The condition was abated when the inspector
next returned, so the condition was abated with a normal
degree of good faith.
Penalty: The Office of Assessments proposed a civil
penalty of $90.00 (appendix B). The Office of the Solicitor considers the proposed civil penalty to be reasonable,
and recommends that it be approved.
9. Citation No. 323143 issued citing 30 CFR 75.604
because one or more permanent splicings on the trailing
cable to the cutting machine were not insulate~ until
moisture was excluded.

1407

Gravity: As noted in the inspector's statement,
Appendix G, the mine is wet so moisture could have e~tered
the openings and caused an arc, resulting in an electric
shock or burn.
Negligence: Although Appendix G notes that the mine
operator is foreman of the mine also, there is no showing
that he or anyone knew or should have known of the condition. The cable must be examined at the beginning of
the shift, but the break may have occurred after the~
examination.
Abatement: The violation had been abated when the
inspector returned, so a normal degree of good faith was
demonstrated.
Penalty: The Office of Assessments proposed a civil
penalty of $90.00 (Appendix B), and the Office of the
Solicitor deems the proposed civil penalty reasonable and
recommends that it be approved.
10. Citation No. 323144 issued citing 30 CFR 75.1107
because the cutting machine was not provided with fire
resistant hydraulic fluid, nor did it have the fire
suppression device which can be used as an alternative
requirement.
Gravity: The Inspector's statement, Appendix H, sho~s
the Inspector had no opinion about gravity or negligence.
The reason being that the mine is so wet that fire in the
cutting machine is remote.
Negligence: The person installing the hydraulic fluid
may not have noticed the color which is the means of
identifying fire retardant fluid, so the violation is the
result of a normal degree of negligence, and not gross
negligence as deemed by the Office of Assessments.
Penalty: As shown by Appendix B, the Office of Assessments recommended a civil penalty of $122.00. The Office
of the Solicitor will agree to settle for a civil penalty
of $100.00 because no gross negligence can be proven.
11. Citation No. 322390 issued citing 30 CFR 75.604
because Inspector Clevinger observed three permanent
splices in the trailing cable to a roof bolting machine
which had not been effectively insulated against water.
Gravity: The mine is wet so an arc could have
occurred or a shock or burn resulted to a miner. See the
inspector's statement, Appendix I.

1408

Negligenc~:

The Mine Operator was in the mine that
shift so he should have seen smoke rising from each of the
three breaks in the cable. The violation was intentional.
Abatement: The condition was abated within the time
provided which demonstrates a normal degree of good faith.
Penalty: The Office of Assessments recommended a
civil penalty of $114.00 and the Office of the Solicitor
would not be ~illing to reduce this proposed civil penalty
in view of the intentional nature of the violation.
In view of the reasons given above by counsel for MSHA for the
proposed settlement, and in view of the disclosure as to the elements
constituting the foundation for the statutory criteria, it appears
that a disposition approving the settlement will adequately protect
the public interest.
In view of the fact that the transcript in this case was not
received until more than 30 days after it normally should have been
received, it appears that payment of the penalty within 60 days
after the date of this decision will comply with the settlement
agreement.
ORDER
Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that Respondent, within 60 days of the date
of this decision, pay the agreed-upon penalty of $590 assessed in this
proceeding.

/ ~--;iii

John F. Coo<.
1Administrative Law Judge

---./

Distribution:
John H. O'Donnell, Esq., Office of the Solicitoi, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
John R. Lark, Secretary-Treasurer, Beth Ann Coal Corporation,
Drawer NN, Big Rock, VA 24603 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

1409

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

SEP 2 6 1979
Civil Penalty Proceeding

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

Docket No. PIKE 79-29-P
Assessment Control
No. 15-10331-03001

v.
No. 6 Surface Mine
FLAT TOP MINING, INC.,
Respondent
DEFAULT DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before

Administrative L.aw Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Pikeville, Kentucky, on August 10, 1979, pursuant to a written notice of
hearing dated June 19, 1979, and received by respondent on June 29, 1979,
counsel for the Mine Safety and Health Administration entered his appearance, but no one appeared at the hearing to represent respondent.
Section 2700.63(a) of the CollDllission's Rules· of Procedure which became
effective on July 30, 1979, provides that when a party fails to comply
with an or4er of a judge, an order to show cause shall be directed to the
party before the entry of any order of default. An order to show cause was
sent to respondent on August 14, 1979, pursuant to 29 CFR 2700.63(a).
Respondent filed on August.30, 1979, a reply to the show-cause order stating
that it had overlooked the hearing date because of some perso~nel changes.
Respondent concluded that it was at fault in failing to appear at the hearing and submitted a check in the amount of $1,465.00 which was the total
of.the civil penalties proposed by the Assessment Office for the seven
violations alleged in MSHA's Petition for Assessment of Civil Penalty.
At the hearing, the inspector who wrote the citations which support
MSHA's Petition for Assessment of Civil Penalty testified that Citation
No. 72833 which he issued on March 15, 1978, alleging a violation of
30 CFR 77.1302(a) had been issued in error. At the time Citation
No. 72833 was issued, it was MSHA's policy to cite a violation of
Section 77.1302(a) if a vehicle used to haul blasting agents lacked a
non-sparking lining inside the space used to haul blasting agents. The
inspector stated that subsequent to March 15, 1978, MSHA changed its
interpretation of Section 77.1302(a) to permit the transportation of

1410

MSHA v. Flat Top, .Docket No. PIKE 79-29-P (Contd.)
blasting agents, as opposed to actual explosives, in an unlined compartment. The inspector stated that he believed Citation No. 72833 should
be vacated because it had alleged a violation of Section 77.1302(a)
under a factual situation which is no longer considered to be a violation
of Section 77.1302(a) (Tr. 8-10).
The inspector's vacation of Citation No. 72833 had the effect of
making it unnecessary for respondent to pay the penalty of $345.00 which
had been proposed by the Assessment Office for the violation of Section 77.1302(a). I have discussed respondent's overpayment with an
employee who works in the Assessment Office and he has indicated that
respondent's payment of $345.00 with respect to Citation No. 72833
will be refunded. Therefore, the order accompanying this decision will
dismiss MSHA's Petition to the extent that it seeks assessment of a
penalty for an alleged violation of Section 77.1302(a) with respect to
Citation No. 72833. The order will also recognize that penalties
totaling $1,120.00 proposed by the Assessment Office for the remaining
six violations have already been paid by respondent.
I find respondent to be in default for failure to appear at the hearing held on August 10, 1979. Section 2700.63(b) of the Conunission's
Rules of Procedure provides that if a judge finds a respondent to be in
default, he shall enter a sununary order assessing the proposed penalties
as final.
WHEREFORE, it is ordered:
(A) For the reasons given above, MSHA's Petition for Assessment of
Civil Penalty filed in Docket No. PIKE 79-29-P is dismissed to the extent
that it seeks assessment of a civil penalty for a violation of 30 CFR 77.1302(a)
with respect to Citation No. 72833.
(B) If the penalty of $345.00 proposed by the Assessment Office
for the violation of Section 77.1302(a) referred to in paragraph (A)
above, has not already been refunded to respondent, that amount should be
refunded within 30 days from the da.te of this decision.
(C) Respondent's obligation to pay civil penalties totaling
$1,120.00 has already been satisfied by its submission on August 20, 1979,
of Check No. 4604 dated August 28, 1979, in the amount of $1,465.00,
of which $345.00 has been or will be refunded.

1411

MSHA v. Flat Top, Docket No. PIKE 79-29-P
The penalties totaling $1,120.00 which respondent has already paid
are allocated to the respective violations as follows:

................ $ 160.00
................ 140.00
................... 140.00
................ 305.00
................ 195.00
. ............ 180.00
................ $1,120.00

Citation No. 72821 3/13/78 § 77 .1606 (c)
Citation No. 72824 3/13/78 § 77 .1605 (a)
Citation No. 72825 3/13/78 § 77 .1110
Citation No. 72829 3/13/78 § 77 .1302 (£)
Citation No. 72831 3/15/78 § 77 .1301 (b)
Citation No. 72832 3/15/78 § 77 .1301 (c) (9)
Total Penalties in This Proceeding

~~ C. r;Jb.,~,,

Richard C. Steffey P--~c;r
Administrative Law Judge

Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Flat Top Mining, Inc., Attention: Lowell Pennington, Secretary/
Treasurer, 2230 Idle Hour Building, Room 206, Lexington, KY
40502 (Certified Mail)

1412

FEDERAL MINE SAFETY AND HEALTH REVlr=:W COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 2 6 1979

DISCIPLINARY PROCEEDING

No. D-79-2
DECISION

Before:

Judge Merlin

The above-captioned matter came on for consideration as scheduled
on September 19, 1979. After hearing from those involved, I rendered
the following bench decision:
This case is a disciplinary proceeding which is
being heard pursuant to the Commission's order dated
August 20, 1979. This matter was referred to the Commission on July 27, 1979., by Administrative Law Judge
George A. Koutras, for possible disciplinary proceedings due to the failure of counsel to appear at a hearing in two penalty cases styled Secretary of Labor v.
CO-OP Mining Company, DENV 79-128-P and DENV 79-129-P.
The parties through their counsel did not appear because
counsel had agreed between themselves to settle these
cases. However, they did not advise the administrative
law judge sufficiently in advance of the hearing so that
his approval of the proposed settlement could be obtained.
The operator's counsel eventually entered an appearance
at the hearing after being personally contacted at least
twice by Judge Koutras, once after the hearing was scheduled to begin. The Solicitor entered no appearance.
By letter dated August 24, 1979, addressed to Judge
Koutras, the Associate Regional Solicitor accepted full
responsibility for what had occurred and extended a full
apology. In addition, the attorney in the Solicitor's
office, who had failed to appear in the two penalty
cases, wrote to Judge Koutras on August 24, 1979, apologizing for his conduct.
On September 10, 1979, the Regional Solicitor filed
a motion for summary disposition of these proceedings
stating that both the Associate Regional Solicitor and
the particular attorney involved had been personally

1411

reprimanded by the Regional Solicitor and by the Solicitor. The Associate Regional Solicitor attached to his
motion a copy of a memorandum to all regional solicitors
from the Solicitor dated September 10, 1979, stating,
inter alia, that failure or refusal by an attorney in the
Solicitor's Office to appear at a hearing before an
adjudicative officer, such as an administrative law judge
of any tribunal before which the Solicitor practices, or
any other conduct disrespectful to such officer, is a
fundamental violation of Solicitor-office policy, which
will not be tolerated. The Solicitor's memorandum further
sets forth that she considers this a very serious matter
and that failure to adhere to stated policy could result
in an attorney's dismissal. On September 10, I denied the
motion for summary disposition.
At the hearing this morning, the Regional Solicitor, the Associate Regional Solicitor, and the attorney
involved, again apologized. In addition, counsel for the
operator also has apologized. I accept these apologies.
Counsel for the operator has supported the Solicitor's representations that the Solicitor did not exercise any coercion upon him with respect to his conduct.
I accept these representations, and I find there was no
coercion.
I also take note of the Solicitor's memorandum
dated September 10, 1979. However, I do not believe
this occasion should pass without a statement from
me on behalf of the Commission with respect to what
has transpired and what is involved in this situation.
The Commission and its judges have been charged by
Congress with the responsibility of hearing and deciding
cases under the Federal Mine Safety and Health Act of
1977. As the Solicitor's memorandum of September 10 now
recognizes, the Solicitor's attorneys have an obligation
to comply with orders of the Commission and its judges.
In particular, there is no excuse for defying an administrative law judge by failing to comply with a specific
order to appear at a hearing. The absolute necessity
for the Solicitor and the operator's counsel to comply
with notices of hearing and other orders issued by
administrative law judges of the Commission is rendered
even more urgent by the stringent circumstances under
which the Commission and its judges operate. The Commission has, at present, only 15 judges who are located
in Arlington, Virginia. The Commission soon will have
two more administrative law judges located in Denver.

1414

In order to dispose of the growing number of cases which
come on for hearing under the Act, the judges of the
Commission, who are so few in number, must travel widely
and establish precise hearing schedules well in advance.
The schedule of Judge Koutras, an individual of
undoubted diligence, during the weeks in question graphically illustrates the point. On July 10, he heard a case
in Spokane, Washington. On July 11 and 12, he heard
cases in Wallace, Idaho. On July 17, he heard a case in
Helena, Montana. The subject penalty cases were scheduled
for hearing in Salt Lake City on July 19 and the notices
of hearing for them were issued 3 months in advance. Only
with such planning and only with such schedules can the
Commission, through its judges, discharge its statutory
responsibilities of hearing and deciding all the cases
that come on for hearing. Obviously, neither the Solicitor
nor any operators' counsel can be allowed to frustrate or
thwart the Commission's fulfillment of its statutorilyimposed obligations by conduct such as occurred in this
case. Nothing less than the efficient enforcement of the
Mine Safety and Health Act is at stake.
There is an additional matter involved which must
be discussed. The failure of counsel to appear at the
hearing and otherwise comply with Judge Koutras' orders
were due to the fact that they did not understand the
crucial role which the 1977 Act gives administrative
law judges in settlement cases. Under the 1977 Act, it
is not enough for the parties themselves to agree upon
a settlement.
Section llO(k) specifically provides that
no proposed penalty shall be compromised, mitigated, or
settled, except with the approval of the Commission.
Accordingly, administrative law judges must approve any
settlement. Without the judge's appr~val, there is no
settlement. Indeed, without the judge's approval,
there is nothing. Therefore, not only was it improper
as a matter of attorney conduct and courtesy for counsel
not to appear before Judge Koutras as he had ordered;
but, in addition, because he had not given his approval
to the proposed settlement, there was no settlement,
and, therefore, counsel should have been prepared to
go to hearing on the designated date. The legislative
·history of the 1977 Act makes clear that Congress was
dissatisfied with the performance of the Department of
Interior in settlement cases under the prior 1969 Act.
Under that statute, approval by administrative law
·
judges was not necessary for settlements. The judges
of the independent Commission were injected four-square
into the settlement process by the 1977 Act in order, in

the ·words of the Senate Report, to assure that abuses
involved in the unwarranted lowering of penalties as a
resul~ of off-the-record negotiations be avoided and
that the public interest be adequately protected before
approval of any reduction in penalties. Senate Report
No. 95-181, p. 45.
Conduct of counsel in this case, as well as the
statements of the operator's counsel at the hearing
before Judge Koutras, demonstrate an unfortunate lack
of understanding of the judge's role in settlement
cases under the 1977 Act. There was also a failure to
appreciate that last-minute settlement agreements reached
only between the parties are insufficient where the judge
is not afforded adequate time in advance of the hearing
to review the matter and determine if his approval is
warranted. In this respect, counsel have to be aware of
the long and difficult hearing schedules followed by the
judges. Counsel have to be aware of the logistics as well
as the legalities of the process. I hope that in addition
to instructing her attorneys that they must appear in
accordance with orders from administrative law judges, the
Solicitor also will instruct her attorneys as to how
settlements must be handled under the law.
It is disturbing that at the hearing before Judge
Koutras, the operator's counsel did not understand that
the Commission is a wholly separate and independent entity
from the Department of Labor. However, some of the Solicitor's own attorneys appear at times to operate under the
same misapprehension. It should not be necessary ·at this
late date to tell attorneys who practice under the Act
that the House version of the 1977 Act gave all enforcement responsibility, including hearings, to the Secretary
of Labor, whereas the Senate bill established an independent Commission with five Commissioners appointed by the
President. Having been given the choice, Congress enacted
the Senate version which became the law and is now the
1977 Act. Accordingly, the Commission is entirely separate
from the Secretary of Labor and from the Solicitor of
Labor. The enforcement and adjudicatory functions in mine
safety and health have been separated. The Conimission is
answerable to Congress, not to the Secretary of Labor. It
should not be necessary at this late date to set forth
such fundamentals to attorneys who practice under the Act,
but I do so now because it is apparent that ignorance of
such basics still exists.
It is my hope that the conduct of the Sol{citor's
attorney and operator's counsel in this case will never

1416

occur again. I recognize, as do all the judges of the
Commission, that the Solicitor has delegated much authority to her regional solicitors. The internal organization
of the Solicitor's office is solely a matter for her
determination. However·, attorneys in all the Solicitor's
regional of fices should understand that they are bound to
follow orders of the administrative law judges of the
independent Commission and they should understand how the
settlement process is designed to operate under the 1977
Act. Conduct such as has occurred in this case cannot be
tolerated by the Commission and if repeated will inevitably
result in disciplinary proceedings and disciplinary sanctions against the individual attorneys involved with all
the adverse consequences such proceedings and actions may
entail.
Finally, this case demonstrates the wisdom of having
a regulation authorizir.g a judge to exercise disciplinary
authority in appropriate instances. Because of this
regulation, the administrative law judge in this case was
not left powerless to deal with the situation which made
discharge of his statutory duty difficult, if not impossible. The Commission in considering the matter and then
referring it to the Chief Judge or his designee, in accordance with section 2700.80 of the regulations, demonstrated its awareness and sensitivity to the problems
encountered by the judge in this instance. Moreover,
under the regulation, the time lapse involved in referring
this matter to the Commission, then referring it back to
the Chief Judge, and lastly in setting a hearing, although
only a short period of time, afforded those involved, and,
most particularly, the Solicitor herself, the opportunity
to consider the matter and take appropriate action including, as set forth above, her personal reprimand of the
attorneys involved and the memorandum to all attorneys as
well as the written apologies to Judge Koutras. Accordingly, under the procedures set forth in the regulations,
the problem has been recognized while at the same time
precipitate action by the Commission against the individuals involved has been rendered unnecessary.
Hopefully, because of the action already taken by
the Solicitor and in light of the comments I have made
here today, the matter has been completely resolved with
better enforcement of the Act as the result. As previously sta~ed, I accept the apologies, both written and
oral, of all counsel involved. In addition, as already
stated, I take note of the Solicitor's memorandum dated
September 10, 1979.

14~I

In view of the complete nature of the apologies,
in light of the Solicitor's memorandum, and since this
is the first time such a situation has arisen, I determine that no disciplinary proceedings are warranted.
Therefore, it is hereby ordered that no action whatsoever be taken and that these proceedings be and are
hereby dissolved.
The bench decision is

Assistant Chief Administrative Law Judge
Distribution:
James L. Abrams, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Henry C. Mahlman, Associate Regional Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Tedrick A. Housh, Jr., Regional Solicitor, U.S. Department of
Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106
(Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Thomas A. Mascolino, Assistant Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Morell E. Mullins, Associate Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City,
UT 84115 (Certified Mail)
Honorable Carin A. Clauss, Solicitor of Labor, U.S. Department
of Labor, 200 Constitution Avenue, NW., Washington, DC
20210 (Certified Mail)
Administrative Law Judge George A. Koutras, Office of
Administrative Law Judges, Federal Mine Safety and Health
Review Commission, 4015 Wilson Blvd., Arlington, VA 22203

1418

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

SEP 2 6 1979
Civil Penalty Proceeding

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

Docket No. WEVA 79-25
A/O No. 46-02208-03005

v.
Marie No. 1 Mine
DAVIS COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND
ODERING PAYMENT°""OF CIVIL PENALTY
Appearances:

Barbara Krause Kaufm~nn, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Paul E. Pinson, Esq., Williamson, West Virginia, for
Respondent.

Before:

Judge Cook

A petition for assessment of civil penalty was filed pursuant
to section llO(a) of the Federal Mine Safety and Health Act of 1977
(Act) in the above-captioned proceeding. An answer was filed and a
prehearing order was issued. Subsequent thereto, Petitioner filed a
motion requesting approval of settlement and for dismissal of the
proceeding.
Information as to the six statutory criteria contained in section 110 of the Act has been submitted. This information has provided a full disclosure of the nature of the settlement and the basis
for the original determination. Thus, the parties have complied with
the intent of the law that settlement be a matter of public record.
An agreed settlement has been reached between the parties in the
amount of $326.30. The assessment for the alleged violations was
$3,263.
The alleged violations and the settlement are identified as
follows:

1419

Citation No.

Date

7-0044
23226
9910140
9910248
26321
26028
26252
26253
26254
26255
26256
26257
26258
26259
26260
26881
26882
26884
26885
26886

7/18/77
4/21/78
7/19/78
8/28/78
10/5/78
10/12/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78
10/25/78

30.CFR
Standard

Assessment

70.508
$180
77 .1107
240
70.508
106
70.212
84
75.200
470
75.603
160
77 .410
150
77 .400(c)
210
77 .202
130
77 .504
84
77 .505
98
77 .410
170
77. 701
150
77 .506
150
77.505
98
77 .502
84
77.800-2
106
77 .410
395
77 .J 109(c) (1) 84
77 .1104
114

Settlement
$18.00
24.00
10.60
8.40
47.00
16.00
15.00
21.00
13.00
8.40
9.80
17.00
15.00
15.00
9.80
8.40
10.60
39.50
8.40
11.40

The Petitioner makes the following representations as relates to
the statutory criteria of negligence, gravity and good faith:
Citation No.
7-0044
23226
9910140
9910248
26321
26028
26252
26253
26254
26255
26256
26258
26259
26260
26881
26882
26884
26885
26886

Negligence

Good
Faith

nonserious ordinary
70.508
ordinary
serious
77 .1107
ordinary
serious
70.508
ordinary
serious
70.212
ordinary
serious
75.200
ordinary
serious
75.603
ordinary
serious
77.410
ordinary
serious
77 .400
ordinary
serious
77 .202
ordinary
serious
77 .504
ordinary
serious
77.505
ordinary
serious
77. 701
serious
ordinary
77.506
serious
ordinary
77 .505
nonserious
ordinary
77.502
serious
ordinary
77 .800-2
serious
ordinary
77.410
serious
ordinary
77.110-0l[sic]
ordinary
serious
77 .1104

normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal
normal

30 CFR
Standard

Gravity

1420

As relates to Citation No. 26257, information submitted by the
Petitioner reveals that the alleged violation was caused by ordinary
negligence, that it was of moderate gravity, and that the Respondent
demonstrated good faith in attempting rapid abatement.
Information submitted by the Petitioner also reveals that the
Respondent's size is rated at 111,516 tons of coal per year. The
Respondent's history of previous violations is rated at five assessed
violation points for each citation, and eleven inspection day points
as relates to all .citations except Nos. 7-0044 and 9910140, which are
rated at twelve inspection day points each.
The Petitioner advances the following justifications in support
of the proposed settlement:

*

*

*

*

*

*

*

3. A reduction from the original assessment is warranted in view of the detriment on the operator's ability
to continue in business which would result from payment of
a greater penalty amount.
Respondent's financial condition is precarious. From
1972 through 1975, Davis suffered losses which it was able
to carry forward to 1976. By doing this it was able to
reduce the amount of tax payable on its 1976 profit of
$190,008 (see Exhibit A). That, however, was the last
profit made by Davis.
In 1977 Davis was closed for approximately eight months
due to floods and strikes. It lost $332,548 (see Exhibit
B). In 1978 Davis was closed for six months due to strikes
at the Norfolk and Western Railroad and by the United Mine
Workers of America. The Respondent's unofficial corporate
balance sheet, dated September 30, 1978, shows an operating loss of $848,860.57, (See Exhibit C, page 3). The
balance sheet dated May 31, 1979, shows an operating loss,
in the first five months of the year of $271,903.04 (See
Exhibit D).
Davis has been able to stay in business only through
the recent acquisition of a long term loan from Pikeville
National Bank and Trust. It has used the money from the
loan to pay its immediate obligations and thus, prevent
default on the loans for its mining equipment. Davis is
now operating solely on borrowed capital. Additional
liabilities in the form of the proposed civil penalties
will have an adverse effect on Davis's ability to meet its
short term obligations and operating expenses and thus to
stay in business.

1421

Respondent is currently in the process of applying to
FHA (through Pikeville National Bank and Trust Company .of
Pikeville, Kentucky,) for a loan with which to pay its
current obligations. The owners of Davis are pledging to
the government as collateral for this loan all the corporate stock in Davis and in its sister corporation, Burning
Springs,_ Collieries Company, Inc., as well as all equipment
and interest in real estate held by both corporation [sic].
As Davis' financial condition approaches bankruptcy at~
this time, this loan is necessary to the continued existence of ~he mining operation.
The Board of Mine Operations Appeals discussed the
penalty criteria of the Coal Act which were identical to
that of the Mine Act and concluded as follows:
• • • the intent of Congress was to give the
Secretary great latitude in the assessment of
monetary penalties so as to permit him to weigh
the equities and render justice on a case-bycase basis • • • We believe Congress intended a
balanced consideration of all statutory factors,
including the size of the mine and the ability
to [remain] in business to permit assessments
which would be equitable and just in all situations • • • Robert G. Lawson Coal Company,
1 IBMA 115, 118 (1972).
Thus, penalties set under the Act may be tailored to
the financial circumstances of each violator. This is not
to say that financial difficulties automatically require
major reduction in proposed penalties. All of the statutory criteria must be considered. Should a violation pose
grave risks of clear and reckless negligence, reduction
based upon financial hardship would be difficult to justify. However, the Secretary believes that the circumstances under which Davis found itself were dire enough
to warrant the proposed settlement and the record revealed
no extraordinary culpability or gravity of the violations
which would have precluded the operator from receiving full
consideration of his financial difficulties.
All citations involved in this matter except 7-0044
were issued under Section 104(a) of the Act. No. 7-0044
is a 104(b) Notice issued under the 1969 Act. Copies of
the inspe~tor's statements and the proposed assessment are
attached hereto.

*

*

*

*

1422

*

*

*

The Secretary contends that the proposed settlement
amount of $326.30 is sufficient under the circumstances to
induce not only compliance with the Act, but also to allow
Davis to continue mining. The proposed settlement properly
balances the public interest which underlies the mandatory
penalty provisions, the penalty criteria, and the settlement
approval provisions of the Mine Act.
In view of the reasons given above by counsel for the Petitioner
for the proposed settlement, and in view of the disclosure as to the
elements constituting the foundation for the statutory criteria, it
appears that a disposition approving the settlement will adequately
protect the public interest.
ORDER
Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is APPROVED.
IT IS FURTHER ORDERED that Respondent, within 30 days of the
date of this decision, pay the agreed-upon penalty of $326.30
assessed in this proceeding.

Law Judge
Distribution:
Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480, Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661
(Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

1423

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

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

SEP 2 6 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. DENV 79-220-PM
A.O. No. 45-00593-05001

v.
Fort Wright Pit Mine
CENTRAL PRE-MIX CONCRETE
COMPANY,
Respondent

Docket No. DENV 79-221-PM
A.O. No. 45-00594-05001
Yardley Pit Mine

DECISIONS
Appearances:

Marshall P. Salzman, Trial Attorney, U.S. Department of Labor, Office of the Regional Solicitor,
San Francisco, California, for the petitioner;
Richard M. Rawlings, Spokane, Washington, for the
respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil penal ties filed by the petitioner against the respondent on January 18,
1978, pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820(a), charging the respondent with a total
of five alleged mine safety violations issued pursuant to the Act and
implementing safety standards. Respondent filed timely answers in the
proceedings and requested a hearing regarding the proposed civil penalties initially assessed for the alleged violations. A hearing was
held in Spokane, Washington, on July 10, 1979. The parties waived
the filing of posthearing briefs, and the arguments presented on the
record at the hearing have been considered by me in the course of
these decisions.
Issues
The issues presented in these proceedings are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalties,

and, if so,- (2) the ~ppropriate civil penalties that should be assessed
for each proven citation, based upon the criteria set forth in section
llO(i) of the Act. Additional issues raised by the parties are discussed in the course of these decisions.
In determining the amount of a civil penalty assessment, section llO(i) of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the
appropriateness of such penalty to the size of the business of the
operator, (3) whether the operator was negligent, (4) the effect on
the operator's ability to continue in business, (5) the gravity of
the violation, and (6) the demonstrated good faith of the operator
in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, R.L. 95-164,
30 u.s.c. § 801 ~seq.
2.

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

3. The Commission's rules and procedures concerning mine health
and safety hearings, 29 CFR 2700.1 et seq.
Stipulations
The parties stipulated as to the Commission's jurisdiction and
the fact that the citations in both dockets were in fact issued on
the dates indicated and that they were duly served on the respondent.
Further, the parties stipulated that the respondent is a small-tomedium-sized sand and gravel operator, has no prior history of violati9ns under the Act, and that the imposition of civil penalties will
~~i.impair its ability to remain in business (Tr. 5-6).
DISCUSSION
Docket No. DENV 79-221
The proposal for assessment of civil penalty filed in this docket
pertains to two citations issued by MSHA inspector James Arnoldi on
August 9, 1978, citing the respondent with violations of the provi_,lo~i 30 CFR 56.14-1. Citation No. 347026 charges that the tail
pulley of the conveyor from the culvert-lined tunnel was not guarded.
Citation No. 347027 charges that the tail pulley at the concrete-lined
tunnel was also not guarded.
, _Pet_itioner' s Testimony and Evidence
MSHA inspector James Arnoldi testified that the Yardley Pit Mine
is a sand and gravel operation where material is mined by a stationary

1425

dragline and transported by conveyor belts to the crusher and screening areas and from there to the stockpile. He confirmed that he
inspected the tail pulley of the belt conveyor from the culvert-lined
tunnel, which is a covered, corrugated metal short tunnel. The tail
pulley itself was a movable machine part and it was not guarded. He
believed a person could possibly come in contact with the unguarded
tail pulley, and that that person would be someone who would be there
for cleanup or maintenance. The dragline operator would not, however,
leave his machine. The inspector indicated that if someone were
caught in the unguarded pulley, he could lose an arm or leg or be
mangled. The pulley was about 18 inches or 2 feet off the ground and
a walkway was alongside the conveyor. The unguarded pulley was in
plain sight and the operator should have known about the condition.
Employees were not working in the area when he observed the condition.
The condition was abated within the time permitted (Tr. 7-11).
On cross-examination, Inspector Arnoldi indicated that the operator does instruct employees not to enter the tunnel area while the
belts are in operation (Tr. 12). In response to bench questions concerning the abatement, petitioner's counsel stipulated that the citation was terminated within the time specified (Tr. 13). Inspector
Arnoldi stated that while the operator does not permit his employees
to work in or around unguarded pulley areas, the fact is that employees do not always heed these instructions and are constantly getting
caught in unguarded pulleys, and MSHA accident reports bear this out
(Tr. 14).
Inspector Arnoldi testified that he considers an unguarded pulley
to be a hazard if there is access to it and a person can reach into
it or get caught in it, even though an operator has lock-out procedures and instructs employees not to go near the equipment while it
is in operation. The inspector stated that the location of the tail
pulley in question was at a place where employees would not normally
pass by on a regular basis, that it was located in an isolated~p}ace,
and that the area in question was part of the material transportation
system. Furthermore, no one is stationed there at all times to maintain the belt. He was influenced to issue the citation because he
is obligated to enforce the standard and the fact that MSHA's accident reports indicate that people are being caught in pulleys •.. The
location of the pulley would dictate when he would cite a violation
of section 56 .14-1 (Tr. 14-16). Based on his observation of .. the tail
pulley and his experience, if an employee were in the area he. might
come in contact with the unguarded tail pulley and be injured (Tr.
16) •·
Regarding the unguarded tail pulley at the concrete-lined .tunnel,
Inspector Arnoldi confirmed that it was unguarded and that emplo-yees
normally do not work in the area. Cleanup and maintenance employees
could possibly come in contact with the unguarded tail pulley.. .This
pulley was also 18 inches to 2 feet off the ground and presented the

1426

same hazard i;ts the other citation. The likelihood of an accident was
very small, ·but the result would be the same as the other citation, and
the condition was in plain view (Tr. 17-18). Although the inspector
agreed that the tunnel was in a remote area, the shift foreman or personnel in that area should have been aware of the unguarded pulley
(Tr. 20).
In response to bench questions, Inspector Arnoldi indicated that
while the mine had been previously inspected by MESA, his inspection
was his first time at the mine under MSHA. Although Mr. Arnoldi
indicated that his inspector's statement must have been based on his
looking at previous inspection reports indicating previous citations
of the same safety standard, he has never cited the same standard ·
since this was his first inspection of the mine, He cited the violations because at some time someone would go to the location of the
exposed pulleys and possibly get caught in them (Tr. 22). The pinch
points would be some 6 inches inside the belt frames, and while the
frames provided some protection, they were inadequate for this purpose (Tr. 23).
Respondent's Testimony and Evidence
Richard M. Rawlings, safety ~irector, testified that he accompanied Inspector Arnoldi during his inspection, and he discussed the
citations and the pulleys with Mr. Arnoldi. With regard to the
culvert-lined tunnel, Mr. Rawlings indicated that the entrance was
was protected with a chain and a "Do Not Enter" sign, and employees
were instructed not to enter the tunnel while the belt was in operation. He indicated that this was satisfactory to other MESA inspectors during prior inspections. As for the second tunnel, there was
no chain or sign at that location, but he could not recall discussing this location with Mr. Arnold (Tr. 25-27).
On cross-examination, Mr. Rawlings indicated that if someone were
standing right next to the pulleys, he could see that they were not
guarded. A foreman is in charge of the tunnel facility and management
personnel, including himself, would be responsible for inspecting the
equipment to see that pulleys are guarded. He did not believe the
conditions cited were dangerous, and indicated that the company had
' previously been cited for violations of the same standard at other
facilities. If an employee disregarded instructions and performed
maintenance or other work while the pulley was moving, 'he could get
hurt (Tr. 27-29).
In response to bench questions, Mr. Rawlings stated that some
pulley locations at the Yardley Pit Mine location are guarded and the
··· circumstances of their location, including whether there is a lot of
· ··'foot traffic nearby, dictate whether guards should be installed and
he makes these determinations himself. The factors he considers
include how often employees are required to be in the area and

1427

whether chains or signs are posted (Tr. 30). Wire mesh guards were
fabricated·and installed to abate the citations. The tail pulleys
are greased once a week, and once every month or two material is
cleaned out of the pulleys. Employees are not in the area when the
belts are running. Greasing is done before the belts are started
and cleanup is done while the belts are off. There is no standard
procedure or lock-out system when this work is done. If someone were
cleaning the belt while it was running, they could be in violation
of company rules, and he did not know whether greasing is done while
the belt is running (Tr. 31-33). The pulleys at the other end of the
belt are 20 feet high where the material dumps off the end of the
belt; there is no walkway there, and they are not guarded (Tr. 31).
Petitioner's Arguments
Petitioner argued that the pulleys cited were in fact not
guarded, and contrary to the ones at the other end of the belts, they
could be contacted by persons in the area. Although the chances of
someone contacting them may be remote, the standard speaks in terms
of "may be contacted," and in the circumstances presented here, the
chances are not so remote that the term "may be contacted" loses its
meaning (Tr. 34).
Respondent's Argument
Respondent argues that the culvert-lined tunnel was guarded by
a chain and sign and that employees are instructed not to enter the
area. Furthermore, the inspector stated that the chances of an accident occurring at this location were remote or improbable. As for
the concrete-lined tunnel, while there was no chain or sign, two
boards were blocking the entrance. Although one person does go to
the tunnel once a week to grease the pulleys, no one is there when
the belt is running (Tr. 35-36). Respondent indicated that guards
would have been provided if the inspector had pointed out the. n~ed
for them, but respond.ent simply did not feel that guards were' .· required because of the locations of the pulleys (Tr. 42).
Docket No. DENV 79-220
Petitioner moved to dismiss Citation No. 347030, August 16, 1978,
30 CFR 56.14-1, on the ground that it could not sustairi its burdep.of
proof as to the fact of violation. The motion was granted and the
petition for assessment of civil penalty as to that alleged violation
is d~smissed (Tr. 44).
The two remaining citations are as follows:
Citation No. 347209, August 16, 1978, 30 CFR 56.14-1, charg~~·"
that ''the guard on the 'V' belt drive at the raw crusher was noi
adequate. It dia not extend low enough to protect personnel from
the pinch point."

1428

Citation. No. 347031, August 16, 1978, 30 CFR 56.12-32, charges
that 11 the electric motor inside the long concrete lined conveyor
tunnel did not have a cover plate."
Petitioner's Testimony and Evidence
Inspector Arnoldi confirmed that he inspected the Fort Wright
facility in August 1978, and he described the operation as a sand and
gravel pit where materials were loaded with end loaders, transported
to a hopper, and then fed on a conveyor for transportation to a
crusher where it is sized and transported by belts to various stockpiles. The V-belt raw crusher was not adequately guarded because i~
did not come down low enough to cover the drive pinch point. The belt
and pulley was a movable machine part. The crusher operator worked
in the area and he would be in danger of getting caught in the pinch
point. A walkway was alongside the pulley within a few inches from
the unguarded moving machine part. Although he could not recall how
high off the ground the pinch point was located, he would estimate
it was 2 or 3 feet and not overhead. The respondent should have
known the pulley was unguarded because supervisors were in the area
and the area was in the open at the main crusher. The citation was
abated within the allotted time ar,d if someone were caught in the
pinch point, they could get their arm or leg mangled or torn off
(Tr. 44-47). The pull wheel for the V-belt drive was guarded, but
the bottom of the drive wheel, where the pinch point was located,
was not (Tr. 48).
In response to bench questions, Inspector Arnoldi indicated that
an 8- to 10-inch area was unguarded and that the crusher operator
would be traveling back and forth in the area several times during
a shift, and the walkway was alongside the pulley just inches away.
He observed the crusher operator there at the time the citation issued
and the crusher was running. Abatement was achieved by installing a
screen over the exposed pulley area (Tr. 49~51).
Regarding the missing cover plate citation, Inspector Arnoldi
confirmed that the motor in question did not have a cover plate. The
motor was some 2 feet long and 18 inches high. The motor junction
box cover was missing and someone could possibly have gotten into it
·and this posed a shock hazard in the event of poor spli_cing. The
uncovered area was 4 inches by 4 inches, and the wires inside the box
were spliced, insulated, and wrapped. The insulation would not wear
out and there was no danger to exposed insulated wires. The danger
presented was the possibility of someone working around the exposed
box and getting a hand tool in the open box and breaking the splices
or contacting the conductor. The box was in plain view, supervisors
were in the area, and the condition should have been observed. He saw
no one working in the area, but somebody would have occasion to work
there cleaning, greasing, or performing maintenance using a shovel,

1429

grease gun, or water to wash out the tunnel and this would add to the
shock hazard. A cover was put on the box within the time fixed for
abatement (Tr. 57-55).
Respondent's Testimony and Evidence
Respondent presented pictures of the location and equipment which
were cited (Exhs. R-1 and R-2; Tr. 58). Mr. Rawlings stated that he
believed the guard which was installed on the V~belt was adequate.
Although someone could get their pants' legs caught in the bottom
pulley, they would have to be on their knees to get an arm or hand
caught. The violation was abated the same afternoon that it was
issued and the area in question was not an area where people walked
through (Tr. 60).
As for the cover plate, Mr. Rawlings stated it too was abated
the same afternoon and that employees were not exposed to any hazard
since they would have to break the insulation on the splices to be
exposed to any hazard (Tr. 60-61).
Findings and Conclusions
Docket No. DENV 79-221-PM
Fact of Violation--Citation Nos. 347026 and 347027, 30 CFR 56.14-1
Respondent is charged with two violations of the provisions
of 30 CFR 56.14-1, which reads as follows: "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."
As I previously stated in a recent decision concerning ~he ~uard
ing requirements of section 56.14-1, Massey Sand and Rock Compqny,
Docket No, DENV 78-575-PM (June 18, 1979), petition for discretionary
review denied, July 27, 1979, I believe that when an inspector cites a
violation of this section of the mandatory standards, it is incumbent
on him to ascertain ?11 of the pertinent factors which led h~m to conclude that in the nQ"Imal course of his work duties at or near sue~ ·
exposed machine parts, an employee is likely to come into contact with
such exposed parts and be injured if such parts are not guarde¢,
Here, it seems obvious to me from the inspector's testimony :ln support· of the citations, that he relied chiefly on the fact that a
person coming in contact with such unguarded machine parts co#ld possibly be injured, and that conclusion was based on certain MSHA accident reports which apparently reflect that employees who are c;aiH1tltt
in unguarded pulleys are in fact injured, While I accept the g;eneral
proposition that a person who becomes entangled in an unguarded
machine part is likely to be injured, this conclusion simply b.~gs the

1430

'question as to whether a specific pulley location in a mine is
required to be guarded pursuant to the requirements of section
56,14-1, In this regard, petitioner conceded on oral argument that
the key words of the regulatory language, "may be contacted," is critical to any determination as to whether the standard has been violated, As I construe that language, it means that on a case-by-case
basis, petitioner must establish that the unguarded area in question,
by its location and proximity to the comings and goings of mine
personnel, exposes them to the hazard or danger of being caught in
the unguarded pulley, In my view, this question can only be determined by consideration of the prevailing circumstances at the time
the citation issued,
With regard to the unguarded tail pulley at the culvert-lined
tunnel (Citation No. 347026), the inspector testified that the equipment was part of the material transportation system and that it was
located in an isolated area where employees would not normally pass
by on a regular basis. The respondent's defense is that the tunnel
was protected by a chain and a "Do Not Enter" sign, and that
employees are instructed not to enter the tunnel while the belt is
moving. Respondent also pointed out that the unguarded pulleys at
the other end of the belts are located some 20 feet high where material dumps off the end of the belt, and since there is no walkway
there, they are apparently "guarded by location" and no guards are
required, As for the unguarded tail pulley in the concrete-lined
tunnel, respondent conceded ~hat it was not protected by a chain or
a sign,
The inspector indicated that the exposed unguarded pulley pinch
point areas were some 18 inches to 2 feet off the ground, adjacent to
walkways, and some 6 inches inside the belt frames, Although the
inspector conceded that no one is stationed at the unguarded tail
pulley locations on a regular basis, Safety Director Rawlings candidly
admitted that the tail pulleys are greased once a week by employees
and that materials are cleaned out of the pulleys on a monthly basis.
Although Mr, Rawlings alluded to the fact tha the cleaning and greasing of the belts is supposed to be done when the belts are not running and before they are started up, he could not state whether
greasing was ever accomplished while the belts were running, Furthermore, although he confirmed that employees were instructed not to be
in the area wr..;.1e the belts were running, he admitted that there is
no standard operating procedure or lock-out system when work is being
performed on the belts and that employees who disregarded instructions
and performed maintenance or other work on the pulley while it was
moving could be injured. Under these circumstances, I conclude and
find that the unguarded pulleys, adjacent to a walkway where men
obviously passed while performing work on the belts and pulleys on a
weekly and monthly basis, presented a hazard to those men and were
required to be guarded, Since they were not, I conclude and find
that the petitioner has established the violations, and the citations
are AFFIRMED,
'

1431

Gravity
I believe that the question of gravity must be determined on the
basis of the conditions or practices which existed at the time the
citations in question issued, General or speculative conclusions as
to the hazards involved with respect to unguarded pulley locations
simply are not sufficient to justify a finding that the conditions
cited presented a grave threat to the safety of mine personnel, On
the facts presented here, the inspector saw no one in the area of the
unguarded pulleys, indicated that no one is stationed there on a regular basis, and conceded that the tunnel areas were somewhat remote
and that employees did not pass through there on a regular basis, He
also indicated that the chances of an accident were "very small,"
Respondent's unrebutted testimony is that one of the tunnels was
chained off and a "Do Not Enter" sign was posted, and while the other
one was not chained or posted, several boards blocked the entrance,
Under the circumstances presented with respect to the citations, I
cannot conclude that the conditions cited were serious, and I find
that they were not,
Negligence
Both the inspector and Safety Director Rawlings were of the view
that the location of the unguarded pulleys would dictate whether they
were required to be guarded pursuant to section 56,14-1, Mr, Rawlings
indicated that some pulley locations are in fact guarded and that he
is the person who decides whether a particular location should be
guarded and his decision in this regard is dictated by the circumstances presented, including consideration of whether there is a lot
of foot traffic in the area and how often employees are required to
be at any given location, As an example of areas not required to be
guarded, he cited elevated pulley areas where there are no walkways.
On the facts presented in this case, I find that Mr, Rawlings knew
or should have known that greasing and cleanup were being performed
in the unguarded pulley areas adjacent to walkways, and while employees may not be required to go to those areas frequently, the fact is
that those employees working in and around unguarded pulleys were
exposed to a potential hazard, and I conclude that Mr, Rawlings should
have been aware of these circumstances, Consequently, I conclude and
find that the failure to guard the locations cited resulted from a
failure by the respondent to exercise reasonable care and that this
constitutes ordinary negligence,
Good Faith Compliance
Abatement was achieved through the fabrication and installation
of wire mesh guards, and petitioner stipulated that the citations
were abated within the time fixed by the inspector (Tr, 13),

1432

Findings and Conclusions
Docket No, DENV 79-220-PM
Fact of Violation--Citation No, 347029, 30 CFR 56,14-1
Respondent is charged with a violation of the provision of 30 CFR
56,14-1, which reads as follows: "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 issued this citation because he believed that the
guard which had been installed on the raw crusher V-belt drive was
inadequate, He believed it was inadequate because the existing guard
did not extend low enough to cover the pinch point at the pulley drive
where an area approximately 8 to 10 inches remained unguarded. Exhibit
R-1 is a picture of the V-belt drive in question and it clearly shows
the area of the existing guards and the location which was not guarded.
The existing guards are a combination of a wire mesh screen and what
appears to be a piece of metal sheeting located over and adjacent to
the vulley apparatus. The guard which was installed to abate the
citation is a piece of wire mesh screen which covers the entire belt
drive and pulley mechanism.
Section 56.14-1 requires, among other things, that belt drive,
head, tail, and takeup pulleys, and "similar exposed moving machine
parts which rnay be contacted by persons, and which may cause injury"
be guarded. Based on theevidence and testimony adduced in these
proceedings, I find and conclude that the V-belt drive location
cited was in fact a pulley of the type described by and within the
meaning of the standard and was required to be guarded to preclude
persons from coming in contact with it and possibly being injured.
On the facts presented here, the inspector testified that there
was a danger of someone getting caught in the unguarded portion of
the pulley in question. A walkway was locat~d some inches away from
the unguarded pulley and the crusher operator would have occasion
to walk along the walkway several times during the course of the
shift, and at the time of the citation, he observed such an operator on duty in the area and the crusher was operating. Respondent's defense is based on the fact that the operator believed that
the existing guard was adequate. However, respondent's witness,
Mr. Rawlings, conceded that someone could get their pants' legs
caught in the exposed pulley which was not guarded. The fact that
one would have to be on his knees for this to occur is not controlling, and while it may indicate that the chances of an accident happening is somewhat remote, it may not serve as an absolute
defense to the asserted violation. Since the pulley area was in

1433

fact guarded to some extent, I can only assume that the existing
guards were installed by the respondent out of recognition of the
fact that the pulley area did present a hazard, and that there was
a possibility of someone walking along the adjacent walkway could
become entangled in the exposed pulley which was not guarded. In
the circumstances, I conclude and find that the pulley area cited
was in fact not adequately guarded and that petitioner has established a violation. Accordingly, the citation is AFFIRMED.
Gravity
I find that the circumstances presented establishes that the violation was serious. The walkway was inches from the exposed unguarded
pulley area and the crusher operator has occasion to walk up and down
that walkway during the course of the shift, and respondent candidly
admitted that had he caught a pant's leg in the pulley, he could have
been injured.
Negligence
The inspector's testimony that the unguarded pulley area was
unguarded and in plain sight to supervisors who may have been there
remains unrebutted. Furthermore, since portions of the pulley were
guarded to some extent, I find tht the respondent was on notice that
the pulley presented a hazard since it seems obvious that the existing guards were installed out of recognition of that fact. I further
conclude that the respondent should have been aware of the fact that
the unguarded pulley area adjacent and next to the walkway presented
a hazard and that respondent's failure to install a guard in that
area resulted in its failure to exercise reasonable care and that
this constitutes ordinary negligence due to the respondent's failure
to correct an unsafe condition which it knew or should have known
existed.
Good Faith Compliance
The citation issued on August 16, 1978, and the inspector fixed
the time for abatement as August 21, 1978. Respondent's testimony
reflects that the guard was installed on the afternoon of the day
the citation issued. I find that this indicates that ~he respondent
exercised rapid abatement in correcting the condition and this fact
has been considered by me in assessing a civil penalty for this
citation.
Fact of Violation--Citation No. 347021, 30 CFR 56.12-32
Section 56.12-32 provides: "Mandatory. Inspector and cover
plates on electrical equipment and junction boxes shall be kept in
place at all times except during testing or repairs."

1434

I find that the preponderance of the evidence adduced with
respect to this citation supports a finding of a violation of section 56.12-32. Respondent did not dispute the fact that the required
cover plate was in fact not in place and its testimony did not rebut
the findings made by the inspector in this regard. The citation is
AFFIRMED.
Gravity
From the testimony and evidence presented, I cannot conclude that
the violation was serious. The inspector testified that the uncovered
area was some 4 inches by 4 inches, and his concern was that someone
working around the uncovered motor plate cleaning with a shovel or
greasing equipment with a grease gun or other hand tools would somehow
place such tools in the uncovered plate area, thereby breaking the
insulation on the wires or contacting the conductors. He saw no one
in the area on the day of his inspection and the evidence establishes
that the area is somewhat remote and not regularly traveled. He also
testified that the wires inside the junction box were spliced, wrapped,
and insulated and there is no indication that the splicing or insulation were in other than good condition. Furthermore, he indicated that
there was no danger to any of the exposed insulated wires and that the
insulation was not likely to wear out in the normal course of events.
I conclude that the possibility of someone placing a shovel,
grease gun, or other tool into the small, exposed area of the cover
plate was highly unlikely. Furthermore, although the tunnel area is
washed out from time to time with water, there is no evidence that
this was the case on the day in question, and based on the totality
of the conditions which prevailed on the day in question, I find that
the condition cited was nonserious.
Negligence
The inspector testified that the uncovered plate in question was
in plain view and should have been observed by supervisors who were
in the area. This testimony is unrebutted and I find that the respon~
dent should have been aware of the fact that the cover plate was not
in place, and its failure to exercise reasonable care in the circumstances constitutes ordinary negligence.
Good Faith Compliance
The citation issued on August 16, 1978, and the inspector fixed
August 21, 1978, as the abatement time. Respondent's testimony indicates that the cover plate was replaced the afternoon of August 16,
and I find that the respondent achieved rapid compliance once the
citation issued, and this is reflected in the penalty assessed by me
for the violation.

1435

Size of Business and Effect of Ci~il Penalties on the Respondent's
Ability to Remain in Business
In both of these dockets, the parties stipulated that respondent
is a small-to-medium-sized sand and gravel operator, and that the
imposition of civil penalties will not impair its ability to remain
in business.
History of Prior Violations
In both of these dockets, the parties stipulated that the respondent has no previous history of violations, and this fact has been
considered by me in assessing the civil penalties.
Conclusion
On the basis of the foregoing findings and conclusions, the following citations are AFFIID-1ED, and civil penalties are assessed as
follows:
Docket No. DENV 79-221-PM
Citation No.

Date

30 CFR Section

Assessment

347026
347027

8/9/78
8/9/78

56.14-1
56.14-1

$25
25

Docket No. DENV 79-220-PM
Citation No.

Date

30 CFR Section

Assessment

347029
347031

8/16/78
8/16/78

56.14:1
56.12-32

$50
25

ORDER
The respondent is ORDERED to pay the civil penalties assessed in
these proceedings, as indicated above, in the total amount of $125
within thirty (30) days of the date of these decisions~ Citation No.
347030 (DENV 79-220) is DISMIS~ED_.
:-.-~ ·

•'

-~

,

Ap~1t:· 1 /h~
-

/~crrgt·~· ~;~,las~
t

Administrative 1.aw Judge

1436

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

SEP 2 6 1979
Civil Penalty Proceeding

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

Docket No. BARB 78-675-P
Assessment Control
No. 40-02190-02004

v.
No. 1 Surface Mine
DUNLAP COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before

Administrative Law Judge Steffey

When the hearing was convened on August 22, 1979, in the above-entitled
proceeding, counsel for the Mine Safety and Health Administration requested
that I approve a settlement agreement which had been entered into by the
parties. Under the settlement agreement, respondent would pay a civil
penalty of $9.00 for an alleged violation of 30 CFR 71.101 instead of the
penalty of $46.00 proposed by the Assessment Office.
Counsel for MSHA stated that he had agreed to the reduction in the
proposed penalty because the alleged violation of Section 71.101 was cited
prior to the amendments contained in the Federal Mine Safety and Health
Act of 1977 which removed the cloud cast upon alleged violations of the
respirable-dust standards by the opinions of the former Board of Mine
Operations Appeals in Eastern Associated Coal Corp.; 7 IBMA 14 (1976),
aff'd on reconsideration, Eastern Associated Coal Corp., 7 IBMA 133 (1976).
Large numbers of cases which arose during the period when the Board's
Eastern Associated opinions were in effect were subsequently settled on a
basis which amounted to an average payment by the coal operators of
$9.00 per alleged respirable-dust violation. See, ~.g., Judge Jqseph B.
Kennedy's Order Approving Consent Settlement and To Pay Civil Penalties
issued May 10, 1978, in Secretary of Labor (MSHA) v. Consolidation Coal
Company, ~al., Docket Nos. VINC 76-76, ~al. I believe that fairness
to other operators justifies allowance of the settlement figure of $9.00
for all civil-penalty cases involving alleged respirable-dust violations
occurring prior to the amendment of the definition of ~respirable dust"
in the 1.977 Act.

1L..'il7

MSHA v. Dunlap, Docket No. BARB 78-675-P (Contd.)
In addition to the equitable reasons given above for accepting a
settlement of $9.00, the official file shows that respondent operated
an extremely small business employing only two miners who produced an
average of approximately 22 tons of coal per day (Tr. 4). Moreover,
respondent's answer to MSHA's Petition for Assessment of Civil Penalty
shows that respondent had taken the required dust samples, but the
samples had been returned to respondent because of respondent's lack
of understanding about the color of card which should have been used at
the time the samples were mailed to MSHA's Pittsburgh laboratory. At
the present time, respondent is not engaged in producing coal (Tr. 4).
Since a very small operator is involved and since there was a good
faith effort to comply with the respirable-dust standards, I find that
strong reasons exist to approve the settlement agreement in this
instance.
WHEREFORE, it is ordered:
(A) The settlement agreement submitted at the hearing by counsel
for MSHA is approved.
(B) Pursuant to the settlement agreement, Dunlap Coal Company shall,
within 30 days from the date of this decision, pay a civil penalty of
$9.00 for the violation of 30 CFR 71.101 alleged in MSHA's Petition for
Assessment of Civil Penalty filed in Docket No. BARB 78-675-P.

~~ e. r,lt;JJfl12L1

Richard C. Steffey~;--~
Administrative Law Judge
Distribution:
Leo J. McGinn,, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Dunlap Coal Company, Attention: Mr. Stanley Ray Hitchcock, Star
Route, Box 79-A, Dunlap, TN 37327 (Certified Mail)

1438

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

SEP 2 6 1979

Civil Penalty Proceeding

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

v.

Docket Nos.

Assessment Control Nos.

PIKE 79-27-P
PIKE 79-28-P

15-09779-03001
15-09779-03002

No. 4 Mine

BLUE RIDGE COAL CORPORATION,
Respondent

DECISION APPROVING SETTLEMENT
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Mr. Edwards. Pinson, Phelps, Kentucky for
Respondent.

Before

Administrative Law Judge Steffey

When the hearing was convened on August 7, 1979, in the above-entitled
proceeding, counsel for petitioner and respondent's representative made
statements in which it was explained that respondent is contesting neither
the occurrence of the violations alleged in MSHA's Petitions for Assessment
of Civil Penalty nor the amounts of the civil penalties proposed by the
Assessment Office for those alleged violations. The only reason that
respondent did not pay the proposed penalties when respondent was notified
of them by the Assessment Office was that respondent had suffered a loss
of about a quarter of a million dollars and has had a serious cash flow
problem which prevented it from being able to pay the proposed civil
penalties in a timely fashion.
Respondent has been gradually improving its financial condition in
recent months and it was stated at the hearing that respondent believed it
could now pay the penalties proposed in this proceeding if it were given
a period of 30 days within which to pay the penalties proposed in Docket
No. PIKE 79-27-P and a period of 60 days within which to pay the penalties
proposed in Docket No. PIKE 79-28-P.
Respondent's request for a period of 30 and 60 days, respectively, to
pay the total penalties proposed by the Assessment Office is reasonable in
the circumstances and will hereinafter be granted.
The record shows that respondent's No. 4 Mine was producing between
250 and 3.00 tons per day at the time the citations involved in this proceeding were written. Respondent has obtained some additional equipment

1439

MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.)
and hopes to increase production to about 400 tons per day. Respondent
currently employs eight miners (Tr. 6). On the basis of the foregoing
information, I find that respondent is a small operator and that penalties
should be in a low range of magnitude insofar as they are based on the
criterion of the size of respondent's business. Respondent's president
indicated that if his business continued to improve, he would be able to
pay the proposed penalties and continue in business (Tr. 4).
The inspectors' citation sheets and subsequent action sheets show
that respondent demonstrated a normal good faith effort to achieve rapid
compliance. With respect to Citation Nos. 64031, 64033, 64034, and
64035, respondent demonstrated an outstanding effort to achieve rapid
compliance and the penalty points were accordingly reduced by the
Assessment Office in determining the penalties proposed for those four
alleged violations.
For all of the alleged violations, the Assessment Office determined
that respondent had a relatively adverse history of previous violations
because from 30 to 40 percent of the points used to derive penalties are
attributed by the Assessment Office to respondent's history of previous
violations.
The Assessment Office attributed about 33 to 40 percent of its points
for assessing penalties to the criterion of negligence and from 10 to
30 percent of its points for assessing penalties to the criterion of
gravity.
The two lowest penalties proposed by the Assessment Office were
$122 each. One of those was appropriately low because it related to an
alleged violation of Section 75.212 for failure to keep proper records.
That violation would not have been a serious threat to a miner's safety.
The other low penalty of $122 related to an alleged violation of Section 75.1714 for failure to provide a self-rescue device for each miner
underground. Without some testimony from the inspector to show otherwise,
I would have been inclined to assess a larger penalty than $122 for that
violation. On the other hand, Exhibit 1 does not show that respondent
has previously violated that section of the mandatory safety standards. In
the absence of testimony, I cannot find that a penalty of $122 for the
alleged violation of Section 75.1714 is unreasonably low.
The other alleged violations are all moderately serious and involve
ordinary negligence except for the violations of Section 77.506 alleged
in Citation Nos. 64157 and 64158 which state that respondent had bridged
over some fuses with solid wire. I generally consider it to be gross
negligence for an operator to bridge over fuses and thereby destroy overload and short-circuit protection. In each instance, the Assessment
Office determined the proposed penalties of $295 and $255 for the alleged

1440

MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.)
violations of Section 77.506 by assigning within one or two points the
maximum number of points permissible under 30 CFR 100.3 for ordinary
negligence. Inasmuch as the bridged fuses were on the surface of the mine
where the seriousness of fire or smoke would have been less dangerous
than such hazards would have been underground, I cannot conclude that
the penalties are necessarily unreasonably low.
My review of the remaining violations alleged by MSHA's Petitions
for Assessment of Civil Penalty filed in this proceeding shows that they
were reasonably evaluated under the six criteria and I find that respondent's agreement to pay the proposed penalties as hereinafter ordered
should be approved.
WHEREFORE, it is ordered:
(A) Respondent's agreement to pay the full penalties proposed by
the Assessment Office is approved as hereinafter ordered in paragraphs (B)
and (C).
(B) Pursuant to respondent's agreement at the hearing with respect
to MSHA 1 s Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-27-P, Blue Ridge Coal Company shall pay, within 30 days from
the date of this decision, civil penalties totaling $4,350.00 which are
allocated to the respective alleged violations as follows:
Citation No. 64031 3/20/78 § 75.503 ••...•.••••••••••••• $ 140.00
255.00
Citation No. 64032 3/20/78 § 75.400 ••••••.•••.•••••••••
170.00
Citation No. 64033 3/20/78 § 75.517 •..•..•.••••.•••••••
170.00
Citation No. 64034 3/20/78 § 75.517 •.••••.•.•.••..•.•.•
160.00
Citation No. 64035 3/20/78 § 75.1710 •••••••.••••••••• ;.
210.00
Citation No. 64036 3/20/78 § 75.313 ••...••...•••••.••••
225.00
Citation No. 64037 3/20/78 § 75.1100-3 ••.•..••••••••• ;.
195.00
Citation No. 63369 5/15/78 § 75.400 ................... .
210.00·
Citation No. 63370 5/15/78 § 75.503 •.•.••••••••••••••••
225 .oo
Citation No. 63371 5/15/78 § 75.313 •••••••.••••••••••••
225.00
Citation No. 63372 5/15/78 § 75.313 ••••••••.•••••••.•• ~
Citation No. 63373 5/15/78 § 75.1710 ••.•.••••••••.•••••
180.00
325.00
Citation No. 63374 5/15/78 § 75.1722 •••.••..•••••••••••
Citation No. 63375 5/15/78 § 75.326 •••••••••••••.•••.••
395.00
Citation No. 63376 5/15/78 § 75.523-2 ••••••..••.•••••••
275.00
Citation No. 63377 5/15/78 § 75.1100-3 •••••.•.••••.••••
160.00
Citation No. 63378 5/15/78 § 75.503 .................. ..
170.00
Citation No. 63241 5/16/78 § 75.518 ••••••..••••••••••••
240.00
Citation No. 63242 5/16/78 § 75.701 ••••••••••••••••••••
225.00
Citation No. 63243 5/16/78 § 75.512 •••••••.••••••.••.••
195.00
Total Penalties in Docket ~o. PIKE 79-27-P ••••.•••• $4,350.00

1441

MSHA v. Blue Ridge, Docket Nos. PIKE 79-27-P, ~al. (Contd.)
(C) Pursuant to respondent's agreement at the hearing with respect
to MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-28-P, Blue Ridge Coal Company shall pay, within 60 days from
the date of this decision, civil penalties totaling $2,399.00 which are
allocated to the respective alleged violations as follows:
Citation No. 63244 5/16/78 § 75.523 •••.••••••••• ; •••••
Citation No. 63380 5/16/78 § 75.503 , ••..••••.•••••••••
Citation No. 63501 5/16/78 § 75.1101-7 ••••••••••••••••
Citation No. 63502 5/16/78 § 75.1714 •••..•.••••• ~ •.•••
Citation No. 64153 5/16/78 § 77.504 ••••••••••.••.•••••
Citation No. 64154 5/16/78 § 77.512 •.••.••••.••.••••••
Citation No. 64155 5/16/78 § 75.512 •••••.•••••••••••••
Citation No. 64156 5/16/78 § 77.504 ••••••••••..•••••••
Citation No. 64157 5/16/78 § 77.506 •••.•••••••••••.•••
Citation No. 64158 5/16/78 § 77.506 •••.•••••••••.•..••
Citation No. 64159 5/16/78 § 77.505 ••.••••••••••••••••
Citation No. 64160 5/16/78 § 75.517 •..•.••.••••.••••••
Total Penalties in Docket No. PIKE 79-28-P •••••••

210.00
160.00
210.00
122.00
210.00
160.00
122.00
240.00
295.00
255.00
160.00
255.00
$ Z,399.oo
$

rJ ,

~ <J.
'l/Jb.u
Richard C.
Administrative Law Judge

Steffe~~

Distribution:
.John H. O'Donnell, T~ial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Blue Ridge Coal Corporation, Attention: Edward S. Pinson, President,
Phelps, KY 41553 (Certified Mail)

1442

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

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

SEP 2 6 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 79-94-PM
Assessment Control
No. 40-00008-05001

v.
County Quarry & Mill
BRADLEY COUNTY HIGHWAY
DEPARTMENT,
Respondent
DEFAULT DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before:

Administrative Law Judge Steffey

A hearing in the above-entitled proceeding was convened in
Chattanooga, Tennessee, on August 22, 1979, pursuant to a written notice
of hearing dated July 2, 1979. The notice of hearing was received by
respondent on or about July 5, 1979. Counsel for the Mine Safety and.
Health Administration entered his appearance at the hearing, but no one
appeared at the hearing to represent respondent.
Section 2700.63(a) of the Commission's Rules of Procedure which
became effective on July 30, 1979, provides that when a party fails to
comply with an order of a judge, an order to show cause shall be directed
to the party before the entry of any order of default. An order to show
cause was sent to counsel for respondent on August 23, 1979, pursuant to
29 CFR 2700.63(a). A return receipt shows that the show-cause order was
received by respondent on August 27, 1979. The order required respondent
to show cause, within 15 days after receipt of the order, why it should
not be found to be in default for failure to appear at the hearing convened on August 22, 1979. A period of over 20 days has elapsed since the
show-cause order was received, but respondent has not submitted a reply to
the order. Therefore, I find that the show-cause order has not been
satisfied and I find respondent to be in default for failure to appear at
the hearing. Section 2700.63(b) of the Commission's Rules of Procedure
provides that when a judge finds a respondent to be in default in a civilpenalty proceeding, he shall also enter a summary order assessing the proposed penalties as final, and directing that such penalties be paid.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, respondent shall pay
civil penalties totaling $320.00 which are allocated to the respective

1443

MSHA v. Bradley County, Docket No. BARB 79-94-PM (Contd.)
alleged violations as follows:
Citation No. 106802 5/9/78 § 56.9-87 ••••••••••••••••• $ 90.00
Citation No. 106803 5/9/78 § 56.9-87 •••••••••••••••••
90.00
Citation NQ. 106804 5/9/78 § 56.14-6 •••••••••••••••••
84.00
Citation No. 106805 5/9/78.§ 56.9-54 •••••••••••••••••
56.00
Total Civil Penalties in This Proceeding •••••••• $320.00

~C.rJo/hJ'-

Richard C. Steffey
Administrative Law Judge
Distribution:

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
James S. Webb, P. C. , Attorney for Bradley County Highway Department,
283 First Street, NW, P.O. Box 1432, Cleveland, TN 37311 (Certified Mail)

1444

FEDERAL-MINE SAFETY AND HEALTH REVeEW COMMISSION·
OFFICE OF ADMINISTRArlVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

SEP 2 7 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 78-618-P
A/O No. 15-02269-80

v.
No. 1 Mine
OSBORNE COAL COMPANY,
Respondent
DEFAULT DECISION
Appearances:

John H. O'Donnell, Esq., Office of the
Solicitor, U.S. Department of Labor, for
Petitioner;
Randall K. Osborne, Osborne Coal Company,
Pennington Gap, Virginia, for Respondent.

Before:

Judge Cook

On August 14, 1978, the Mine Safety and Health Administration
(MSHA) filed a petition for assessment of civil penalty against
Osborne Coal Company (Respondent) pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977. Since an answer ·had not
been filed by the Respondent as of November 16; 1978, then Acting
Chief Administrative Law Judge Broderick issued an order requiring
the Respondent to show cause both as to why it should not be deemed
to have waived its right to an evidentiary hearing and as to why
the case should not be disposed of summarily pursuant to 29 CFR
2700.26(b) (1978). On December 1, 1979, the Respondent timely
filed its response to the order to show cause. Subsequent thereto,
the case was assigned to the undersigned Administrative Law Judge.
Notices of hearing were issued on March 8, 1979, May 9, 1979,
and May 30, 1979. Copies of the notices were sent by certified mail
to the Respondent. The return mail receipts disclose that they were
received by the Respondent on March 19, 1979, May 16, 1979, and
June 6, 1979, respectively. A hearing was held, following which, a
transcript with exhibits was received by the Office of Administrative Law Judges of the Federal Mine Safety and Health Review
Commission on September 13, 1979.
The hearing commenc.ed at 9 :45 a.m., June 27, 1979, at the
designated place, i.e., Abingdon, Virginia. Counsel for MSHA
appeared. No one appeared to represent the Respondeat (Tr. 4).

Following this determination, the Respondent was found in default
pursuant to 29 CFR 2700.26(c) (1978) (Tr. 5). It was thereupon
noted that 29 CFR 2700.26(c) (1978), provides that "[w]here the
Judge determines to hold the Respondent in default, the Judge
shall enter a summary order imposing the proposed penalties as
final, and directing that such penalties be paid" (Tr. 5).
Counsel for MSHA then introduced the following exhibits into
evidence:
M-1 is a copy of a computer printout compiled by the Office of
Assessments listing the history of previous violations for which the
Respondent had paid assessments beginning October 15, 1971, and ending October 15, 1973.
M-2 is a copy of Notice No. 1 LR, 30 CFR 75.200, October 15,
1973.
M-3

1S

an extension of M-2.

M-4 is a termination of M-2.
M-5 is a copy of Notice No. 2 LR, 30 CFR 75.1704, October 15,
1973.
M-6 is a termination of M-5.
M-7 is a copy of Notice No. 3 LR, 30 CFR 75.503, October 15,
1973.
M-8 is a termination of M-7.
M-9 is a document containing the Office of Assessment's narrative
findings of fact and proposeu penalties with respect to the subject
notices.
Exhibit M-9 identifies the notices and the proposed penalties
as follows:
Notice No.

Proposed Penalty

1 LR

$56

2 LR

84

3 LR

35

Following the receipt into evidence of MSHA's exhibits, a summary
order was entered imposing the proposed penalties and directing that
the penalties be paid (Tr. 11).

1446

ORDER
Accordingly, the order is REAFFIRMED and the Respondent is
directed to pay the penalty assessed in the amount of $175 within
30 days of the date of this decision.

Law Judge
Distribution:
John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Randall K. Osborne, Osborne Coal Company, Route 1, Box 237-A,
Pennington, Gap, VA 27277 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

1447

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

SEP 2 7 \979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. HOPE 79-145-P
A.O. No. 46-01616-03003

v.

Mine No. 2A

PEERLESS EAGLE COAL COMPANY,
Respondent
DECISION AND ORDER ASSESSING DEFAULT PENALTY
After the retirement of Judge Littlefield and reassignment of the
captioned matter to the presiding judge, "};_/ a notice of hearing and
pretrial order issued on August 7, 1979. Pursuant to Rule 25 of the
Interim Rules of Procedure (Rule 28 of the Revised Rules) the operator
was required to file on or before Friday, September 7, 1979, a plain and
concise statement of the reasons it was contesting each violation and/or
the amount of each penalty, together with a statement as to whether the
operator claimed the payment of a maximum penalty for each violation
charged would impair its ability to continue in business. The order
further stated that "except for good cause shown in advance thereof,
any failure to comply in full and on time with the provisions of this
order shall be deemed cause for the issuance of an order of dismissal
or default." Respondent failed to comply with any of the terms of the
pretrial order.
Pursuant to Rule 63 of the Revised Rules an order to show cause
why respondent should not be held in default and a summary order entered
assessing the proposed penalties as final issued on September 12, 1979,
returnable on or before Friday, September 21, 1979. The show cause
order was receipted for by respondent's attorney on Friday, September 14,
1979.
Based on an independent evaluation and de novo review of the
circumstances as set forth in the Secretary';-response to the pretrial
order, and more particularly the statements of the inspector and his
supervisor, I find that the amount of the penalties warranted for the
violations charged are as follows:

!/

Judge Littlefield had denied a motion to remand the matter to
the Assessment Off ice and had issued a pretrial order which was
superseded by the order of August 7, 1979.

1448

Citation No. 044225 - 30 CFR 75.1105
The supervisor's statement and a consideration of the
circumstances persuades me that the violation of the requirement that the air current ventilating a permanent dewatering pump be
directly coursed into a return airway created only a remote hazard
of smoke inhalation for miners working inby the intake airway. I
conclude that the violation was nonserious and resulted from a low
degree of ordinary negligence. I find therefore that the penalty
warranted is $300.00.
Citation No. 044226 - 30 CFR 75.200
The statements of the inspector and supervisor and a consideration
of the circumstances persuades me that the failure to scale down
loose roof in an area measuring 15 by 15 feet which was travelled
only once a week by a certified preshift examiner or fire boss
created only a remote roof fall hazard for one miner, namely the
examiner who should have reported the condition for correction. I
find therefore that i t was a knowing violation attributable to a high
degree of negligence on the part of the examiner and imputable
to the operator, but that the i~probability of a fatal or disabling
injury requires a finding that the violation was not serious.
For these reasons, I conclude that the penalty warranted is
$300.00.
I take note of the fact that Rule 63(b) apparently contemplates
the presiding judge "shall" issue an order of default "assessing the
proposed penalties as final." Here the penalties proposed by the
Assess~ent Office were $620.00 for the ventilation violation and $470.00
for the roof violation. Rule 29(b) and section llO(i) of the Act,
however, require that "in determining the amount of penalty neither
the Judge nor the Commission shall be bound by a penalty recommended
by the Secretary or by any offer of settlement made by any party."
I construe Rule 29(b) and section llO(i) to require the Judge
and the Commission to make an independent evaluation and de ~
review of proposed penalties based on the evidence relating to the
nature of the violation and the six statutory criteria. Since I find
Rule 29(b) and section llO(i) govern the assessment of default as well
as adjudicated penalties, I conclude the mandatory language of Rule 63(b)
must be considered as inadvertant and the rule read in harmony with
the governing terms of the statute. In this regard, I note that both
the Commission and the Occupational Safety and Health Review Commission have
construed the cognate penalty provisions of the two statutes !:./· as
:!:_/ The language of the applicable provisions of the Occupational
Safety and Health Act, 29 U.S.C. 666(i), tracks that of section llO(i)
of the Mine Act.

1449

permitting the judges and the Commissiomto determine whether a contested
penalty should be more or less than that proposed by the Secretary.
Secretary v. Shamrock Coal Co., BARB 78-82-P, FMSHRC 79-6-5, 1 FMSHRC
Decisions 469 (June 7, 1979); Long Manufacturing Co. v. Brennan, 554
F.2d 903, 908 (8th Cir. 1977); Brennan v. OSHRC, 487 F.2d 438, 441-442
(8th Cir. 1974).
Accordingly, it is ORDERED that respondent be, and hereby is,
declared in DEFAULT. It is FURTHER ORDERED that a penalty of $600.00
be, and hereby is, assessed and that respondent pay this amount on or
before Monday, October 15, 1979.

Joseph B. Kenne y
Administrative Law
Distribution:
Lawrence W. Moon, Jr., Trial Attorney, U.S. Department of Labor, Office
of the Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203
Donald A. Lambert, Esq., Peerless Eagle Coal Company, P.O. Box 4006,
Charleston, WV 25304 (Certified Mail)

1450

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

SEP 2 7 1979

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

Application for Review
of Discrimination
Docket No. WEVA 79-148-D

On behalf of:
Shannon Branch Coal Mine
ARNOLD J. SPARKS, JR.,
Applicant
v.
ALLIED CHEMICAL CORPORATION,
Respondent
DECISION AND ORDER
Appearances:

Frederick W. Moncrief, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Applicant;
Marshall C. Spradling, Esq., Spilman, Thomas, Battle
& Klostermeyer, Charleston, West Virginia, for
Respondent.

Before:

Judge Kennedy

This is a discrimination complaint brought pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act, ~ amended,
30 U.S.C. § 815(c)(2), on behalf of Arnold J. Sparks, Jr., a miner
employed at Allied Chemical Corporation's Shannon Branch Coal Mine.
On March 28, 1978, MSHA inspector Cloy Blankenship performed a
"spot" ventilation inspection of respondent's mine pursuant to section 103(i) of the Act.

Before making his inspection, the inspector

1451

informed William P. Lusk, an assistant mine foreman, that Arnold J.
Sparks, Jr., was going to accompany him on the inspection as a representative of the miners.

Mr. Lusk told Mr. Sparks that he would not

be paid by Allied for his participation in the inspection.

Mr. Sparks

did parti.cipate in the inspection, and Allied refused to pay him for
that participation. 1/
On May 23, 1979, the Secretary of Labor filed this complaint
alleging respondent interfered with the exercise of the statutory
rights of Mr. Sparks as a representative of the miners in violation of
section 105(c)(l) of the Act.

Applicant prays that Allied be ordered

to ce~se and desist from refusing to pay representatives of miners for
participating in inspections; that Allied be ordered to pay Mr. Sparks
for his participation in the inspection on March 28, 1978, with interest at 9 percent; and that Allied be assessed an appropriate civil penalty for its interference with the exercise of rights protected by
section 105(c) of the Act.

On August 30, 1979, respondent filed a

motion for summary decision and brief in support thereof pursuant to
29 CFR 2700.64 on the grounds that the statutory language, legislative
history and case law interpreting the relevant sections of the Act
demonstrate that as a matter of law Allied is not required to pay
Mr. Sparks for his participation in a "spot" inspection made pursuant
1/ These are the material facts as disclosed in applicant's complaint
and in respondent's motion for summary disposition. Paragraphs 4 and
5 of the.complaint allege that the inspection at issue was a "spot"
inspection. The Secretary neither admits nor denies that the inspection was made pursuant to section 103(i).

1452

to section 103(i) of the Act,

On September 10, 1979, the Secretary

filed his opposition along with supporting briefs~

There being no

genuine issue as to the material facts, the matter stands ready for
summary decision of the question of statutory construction presented.
At issue in this litigation is the extent of miners' walkaround
rights, i·~·, the right to accompany an inspector and to receive normal compensation while doing so.

This right is recognized in section

103(f), 30 U.S.C. § 813(f), of the Act, which provides that a representative of the miners shall be given an opportunity to accompany an
inspector for the purpose of aiding in the "inspection of any coal or
other mine made pursuant to [section 103(a)]." 2/

Any such represen-

tative of the miners who is also an employee of the operator "shall
suffer no loss of pay during the period of his participation in the
2/

Section 103(f), 30 U.S.C. § 813(f), of the Act provides:
"Subject to regulations issued by the Secretary, a representative
of the operator and a representative authorized by his miners shall
be given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine made pursuant to' the provisions of subsection (a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine. Where there is no authorized
miner representative, the Secretary or his authorized representative
shall consult with a reasonable number of miners concerning matters
of health and safety in such mine. Such representative of miners who
is also an employee of the operator shall suffer no loss of pay during the period of his participation in the inspection made under this
subsection. To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative
from each party would further aid the inspection, he can permit each
party to have an equal number of such additional representatives.
However, only one such representative of miners who is an employee of
the operator shall be entitled to suffer no loss of pay during the
period of such participation under the provisions of this subsection. Compliance with the subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this Act."

1453

inspection."

Respondent contends that there are certain types of.

inspections to which the right to compensation does not attach, in
particular, spot inspections for extrahazardous conditions pursuant
to the mandate of section 103(i).
The·scope of the Secretary's mine inspection authority is
delimited by section 103(a), ll which directs "frequent" inspection
of all mines for four purposes:

(1) to obtain information relating

to health and safety conditions and the causes of accidents; (2) to
gather information relating to mandatory standards; (3) to determine
whether imminent dangers exist; and, (4) to determine compliance with
mandatory standards, citations, orders, or decisions.

With respect to

imminent dangers and compliance, the Secretary is directed to inspect

ll Section 103(a), 30 U.S.C. § 813(a), of the Act reads in pertinent
part:
"Authorized representatives of the Secretary or the Secretary of
Health, Education, and Welfare 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 o~iginating in such mines, (2)
gathering information with respect to mandatory health or safety
standards, (3) determining wl1ether 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 otit
the requirements of this subsection, no advance notice of an inspection shall be provided to any person, except that in carrying out
the requirements of clauses (1) and (2) of this subsection, the Secretary of Health, Education, and Welfare may give advance notice of
inspections. In carrying out the requirements of clauses (3) and (4)
of this subsection, the Secretary shall make inspections of each
underground coal or other mine in its entirety at least four times a
year, and of each surface coal or other mine in its entirety at least
two times a year. The Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not
limited to, the hazards found in mines subject to this Act, and his
experience under this Act and other health and safety laws."

1454

each mine "in its entirety at least" four times per year for underground mines and two times per year for surface mines.

In addition to

this minimum requirement for complete inspections, the Secretary is
directed to establish guidelines for additional inspections based on
his experience under the Mine Act "and other health and safety laws."
Thus, it is apparent that the substantive authority for carrying
out inspections for the purposes of obtaining information and insuring
compliance is to be found in section 103(a).

The regular compliance

inspections are to be carried out frequently, but, in no event less
than two or four times yearly.
In addition to the minimum requirements for compliance inspections, two other subsections establish special procedures for triggering inspections for compliance and information~

Section 103(g)(l) !!._/

provides that at the request of a representative of the miners who has
reasonable grounds to believe that a violation or imminent danger
exists an immediate special inspection may be had.

Section 103(i)

2_/ provides for "spot" inspections for methane accumulations in
gassy mines and for "other especially hazardous conditions" on an
accelerated schedule.

!!_/

Section 103(g)(l), 30 U.S.C. § 813(g)(l), of the Act reads in
pertinent part:
JIWhenever a representative of the miners or a miner in the case
of a coal or other mine where there is no such representative has
reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard exists, or an imminent danger exists,
such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized
representative of such violation or danger."
5/ Section 103(i), 30 u.s.c. § 813(i), of the Act reads:
"Whenever the Secretary finds that a coal or other mine liberates
excessive quantities of methane or other explosive gases during its

1455

Respondent takes the position that the compensation right under
section 103(f) extends only to the minimum of four mandatory inspections "of the mine in its entirety," and that any other or additional
inspections are without the coverage of the section.

Maintaining that

these "regular" inspections are the "only inspections made pursuant to
Section l03(a)" (Brief, p. 5), respondent asserts that only a representative of miners participating in such a "regular" inspection is
entitled to be paid.

Respondent claims that since the inspection giv-

ing rise to the instant complaint was made pursuant to section 103(i),
and since "there is no requirement in Section 103(i) that the operator
pay a representative of miners for participation in such a spot
inspection" (id.), the miner Sparks is not entitled to compensation.
The Secretary, on the other hand, takes the position that the
language of the compensation provision of section 103(f) clearly
and unambiguously encompasses all inspections carried out for the
fn, 5 (continued)
operations, or that a methane or other gas ignition or explosion has
occurred in such mine which resulted in death or serious injury at
any time during the previous five years, or that there exists in such
mine some other especially hazardous condition, he shall provide a
minimum of one spot inspection by his authorized representative of
all or part of such mine during every five working days at irregular
intervals. For purposes of this subsection, 'liberation of excessive
quantities of methane or other explosive gases' shall mean liberation
of more than one million cubic feet of methane or other explosive
gases during a 24-hour period. When the Secretary finds that a coal
or other mine liberates more than five hundred thousand cubic feet of
methane or other explosive gases during a 24-hour period, he shall
provide a minimum of one spot inspection by his authorized representative of all or part of such mine every 10 working days at irregular
intervals. When the Secretary finds that a coal or other mine liberates more than two hundred thousand cubic feet of methane or other
explosive gases during a 24-hour period, he shall provide a minimum
of one spot inspection by his authorized representative of all or
part of such mine every 15 working days at irregular intervals."

1456

purposes enumerated in the four clauses of the first sentence
of section 103(a).

Relying on the Interpretative Bulletin of

April 25, 1978, 43 F.R. 17546, the Secretary maintains that the
"inclusion of a statutory minimum number of inspections at each
mine is no more than an additional requirement, clearly directed
at the Secretary, which does not affect the participation right."
43 F.R. at 17547.

Therefore, the Secretary concludes that because

they are carried out for the purpose of obtaining information or
determining whether imminent dangers, violations or especially
hazardous conditions exist, the inspections triggered by sections
103(i) and (g)(l) "are clearly conducted 'pursuant to' section
103(a)."

Id.

In support of its position, respondent cites two previous decisions by administrative law judges which concluded that operators
are not required to pay employees who accompany MSHA inspectors on
other than the "regular", i_.~., entire mine inspections.

Kentland-

Elkhorn Coal Corporation v. Secretary of Labor, PIKE 78-339 (March 8,
1979), appeal pending; Secretary of Labor v. Helen Mining Company,
PITT 79-11-P (April 11, 1979), appeal pending.
In Kentland-Elkhorn, an MSHA electrical specialist conducted an
inspec.tion of the operator's preparation plant.

At the time of this

inspection, another inspector was in the process of carrying out one
of the "regular" inspections of the mine in its entirety.

1457

That

inspector was accompanied by a miner who was paid.

The electrical

specialist was also accompanied by a representative of the miners,
and upon the operator's refusal to pay that miner, a citation and
subsequently a withdrawal order issued.

In a review proceeding, the

operator contended that section 103(f) only grants miner representatives the right to participate in an inspection without suffering
loss of pay during a "regular" inspection of the entire mine and
since the inspection at issue was a spot electrical inspection, it
had properly refused to pay the miner.

The administrative law judge

agreed with these contentions and held that the right to participate
without loss of pay is limited to "regular" inspections of the entire
mine.
A similar conclusion was reached in Helen Mining Company, supra,
with respect to a spot inspection required by section 103(i).

Since

the mine involved in that case was particularly gassy, it had to be
frequently inspected for possible accumulations of methane.

The

inspector involved had been in the process of making one of the
"regular" inspection·s of the mine 1n its entirety during the previous
3 days, but he interrupted this inspection so that he could investigate areas where accumulations of methane might exist in order to
determine whether those areas were adequately ventilated.

The inspec-

tor was informed that the representative of the miners who accompanied
him oh the methane inspection would not be paid, whereupon a citation
and subsequently a withdrawal order issued.

At the hearing, the oper-

ator contended that section 103(f) only requires that the miner
representative who participates in an inspection of the entire mine

1458

must be paid~ 21._

Again, the administrative law judge agreed

with these contentions and vacated the citation and order.
Both these cases turned on the authority ascribed to certain
remarks made by Congressman Perkins, Chairman of the Committee on
Education and Labor.

These remarks were made after the Conference

Committee had made its final report and 21 days after the Senate had
passed the bill. ]_/

In attempting to clarify what he considered to be

an ambiguity in this aspect of the Conference Report, he stated that:
Section 103(f) provides that a miner's representative

* * * shall be given an opportunity to accompany the

inspector during the physical inspection and pre- and postinspection conferences pursuant to the provisions of subsection (a). Since the conference report reference is
limited to the inspections conducted pursuant to section
103(a), and not those pursuant to section 103(g)(l) or
103(i), the intention of the conference committee is to
assure that a representative of the miners shall be
entitled to accompany the federal inspector, including
pre- and post-conferences, at no loss of pay only during
the four regular inspections of each underground mine in
its entirety * * *
6/ The operator's argument ?roves too much, because if accepted
it would lead to the conclusion that the miner initially requested
must accompany the inspector during the whole of the entire mine
inspection. Recognizing that in many cases such complete inspections take a considerable amount of time, even weeks or months,
it is unrealistic to assume that one particular miner would be
assigned to accompany the inspector exclusively, especially considering that no one miner possesses the expertise to assist the
inspector in investigating all the areas of a large and complex mine.
7/ The Conference Committee voted to accept the Conference Report on
October 3, 1977 (Leg. Hist. at 1279), the Senate voted to accept the
Conference Report on October 6, 1977 (Leg. Hist. at 1347), and a
Concurrent Resolution to effect corrections--;;; agreed to on
October 17, 1979 (Leg. Hist. at 1351). It was not until October 27,
1977, that Congressman Perkins made his remarks to the House. (Leg.
Hist. at 1354). There is no evidence that Congressman Perkins' gloss
OU.-Section 103(f) was ever brought to the attention of or approved by
the Senate.

1459

Committee Print, LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND
HEALTH ACT OF 1977, 95th Cong., 2d Sess (July 1978) at 1357 (hereinafter cited as Leg. Hist.)
This seemingly unequivocal statement concerning the intended
scope of section 103(f) was, however, followed by a comparison of the
cognate provisions of the 1969 Act which indicates some possible confusion on Congressman Perkins' part.

He recognized that section

103(a) of the 1969 Act did not include the provision directing the
Secretary to "develop guidelines for additional inspections of mines
based on criteria including, but not limited to, * * * his experience
under this act and other health and safety laws."

(Emphasis added.)

He then correctly pointed out that the participation right section of
the 1969 Act, section 103(h), provided that a representative of the
miners may accompany an inspector on "any" inspection, but that the
1969 Act did not have a compensation provision.

He then went on to

state:
Since the conference report does not refer to any
inspection, as 4id section 103(h) of the 1969 act, but
rather to an inspection of any mine pursuant to subsection (a), it is the intent of the committee to require
an opportunity to accompany the inspector at no loss of
pay only for the regular inspections mandated by subsection (a), and not for the additional inspections
otherwise required or permitted by the Act. [Emphasis
added.]
Leg. Hist. at 1358.
Thus, a fair reading of the whole of Congressman Perkins' statement concerning the seeming ambiguity found in section 103(f) indicates that his real concern was that the right to pay for exercise of

1460

the walkaround right not be extended to the "additional inspections"
permitted under the new section 103(a), but would be limited to the
"frequent inspections" authorized and required by the first sentence
of that section.

Thus, it appears that when Congress limited the

right to pay to inspections "pursuant to subsection (a)," it may have
intended to exclude from that right inspections made under guidelines
issued by the Secretary calling for "additional inspections," i·!:_·,
inspections other than those mandated by the statute.

In other words,

there are two categories of inspections, statutory section 103(a)
inspections and nonstatutory Secretarial inspections.

Congress may

well have wished to protect the operators from an unlimited expansion
of the right to pay based on "additional inspections" authorized only
by the Secretary and particularly where they were for the purpose of
aiding in the exercise of his responsibilities under "other health
and safety laws."
Indeed, the greater weight of the legislative history supports
this interpretation •. First, it should be noted that the provision at
issue was included in the Senate version of the bill and the Joint
Explanatory Statement of the Conference Committee clearly indicates
that "to encourage miner participation * * * one such representative
of miners, who is also an employee of the operator, [shall] be paid
by the operator for his participation in the inspection and conferences.

The House amendment did not contain these provisions.

conference substitute conforms to the Senate bill."
1323.

Leg. Hist. at

It is significant to note that nowhere in the Conference

1461

The

Committee statement is the purported limitation on the compensation right advanced by Congressman Perkins discussed or alluded to.
In the Senate's consideration of the 1977 Act, miner participation in inspections was recognized as an essential ingredient of a
workable safety plan.

Senator Javits, one of the managers of the bill,

explained the critical impprtance of the walkaround right as part of a
comprehensive scheme to improve both safety dnd productivity in the
mines:
First, greater miner participation in health and safety
matters, we believe, is essential in order to increase miner
awareness of the safety and health problems in the mine, and
secondly, it is hardly to be expected that a miner, who is
not in business for himself, should do this if his activities remain uncompensated.
In addition, there is a general responsibility on the
operator of the mine imposed by the bill to provide a safe
and healthful workplace, and the presence of miners or a
representative of the miners accompanying the inspector is
an element of the expense of providing a safe and healthful workplace * * *
But we cannot expect miners to
engage in the safety-related activities if they are going
to do without any compensation, on their own time. If
miners are going to accompany inspectors, they are going
to learn a lot about mine safety, and that will be helpful to other employees and to the mine operator.
In addition, if the worker is along he knows a lot
about the premises upon which he works and, therefore, the
inspection can be much more thorough. We want to encourage
that because we want to avoid, not incur, accidents. So
paying the worker his compensation while he makes the
rounds is entirely proper***· We think safe mines are
more productive mines. So the operator who profits from
·this production should share in its cost as it bears
directly upon the productivity as well as the safety of
the mine***· It seems such a standard business practice that is involved here, and such an element of excellent employee relations, and such an assist to have a
worker who really knows the mine property go around with

1462

an inspector in terms of contributing to the health and
safety of the operation, that I should think it would be
highly favored. It seems to me almost inconceivable that
we could ask the individual to do that, as it were, in
his own time rather than as an element in the operation of
the whole enterprise.
Leg. Hist. at 1054-1055.
Senator Williams, Chairman of the Committee ori Human Resources,
also discussed the importance of the walkaround right in the context
of improving safety consciousness on the part of both miners and
management:
It is the Committee's view that such participation will
enable miners to understand the safety and health requirements of the Act and will enhance miner safety and health
awareness. To encourage such miner participation it is the
Committee's intention that the miner who participates in
such inspection and conferences be fully compensated by the
operator for the time thus spent. To provide for other than
full compensation would be inconsistent with the purpose of
the Act and would unfairly penalize the miner for assisting
the inspector in performing his duties.
Leg. Hist. at 616-617.
In light of the broad policy expressed in the Act of protecting
miners and making inspections more effective, it is difficult to
understand why the isolated remarks of Congressman Perkins have been
accorded so much weight.

In contrast, similar remarks by other

members of the House and Senate are conspicuous by their absence.
It would seem that if Congress had intended by section 103(f) to

create two separate categories of statutory walkaround rights, one
compensable and one non-compensable, there would have been at least
some debate on this departure from the general scheme of the Act.

1463

Otherwise, there exists an arguably invidious discrimination.
In any event, it is questionable whether resort to legislative
history has a place in the application of the statutory language in
question.

T.V.A. v. Hill, 437 U.S. 153, 184 n. 29 (1978).

On its

face, section 103(f) is clear and unambiguous, and therefore reliance
on the explanatory comments of a single Congressman appears unnecessary.

Schiaffo v. Helstoski, 492 F.2d 413, 428 (3rd Cir. 1974).
It has been consistently held that as a matter of statutory con-

struction it is error to place undue emphasis on a portion of the
legislative history where to do so sacrifices the object of the
legislation.

"Not even formal reports - much less the language of a

member of a committee - can be resorted to for the purposes of construing a statute contrary to its plain terms."

Committee for Humane

Legislation v. Richardson, 414 F. Supp. 297, 308 (D.D.C. 1976), modified 540 F.2d 1141 (D.C. Cir. 1976); citing Pennsylvania Railroad Com~ v.

International Coal Mine Company, 230 U.S. 184, 199 (1912);

F.T.C. v. Manager, Retail Credit Company, 515 F.2d 988, 995 (D.C. Cir.
1975).

It must be remembered that the proper function of legislative

history is to resolve ambiguity, not to create it.

United States v.

Missouri Pacific Railroad Company, 278 U.S. 269, 278 (1929);
Montgomery Charter Service v. W.M.A.T.A., 325 F.2d 230, 233 (D.C. Cir.
1963); Elm City Broadcasting Corporation v. United States, 235 F.2d
811, 816 (D.C. Cir. 1956).

1464

It should be noted that these sections of the Mine Safety Act
serve a broad remedial purpose, and as such should be given a liberal
construction, and any asserted exceptions to those provisions should
be given a strict, narrow interpretation.

Phillips v. Interior Board

of Mine Operations Appeals, 500 F.2d 772, 782 (D.C. Cir. 1974), cert.
denied, 430 U.S. 938 (1975).

Finally, when a statutory interpreta-

tion that promotes safety conflicts with one that serves another purpose, the first must be preferred.

District 6, UMWA v. IBMA, 562 F.

2d 1260, 1265 (D.C. Cir. 1977).
Accordingly, whether based on an analysis of the relevant legislative history or through application of accepted canons of statutory
construction, I find that the reference in section 103(f) to inspections "made pursuant to subsection (a)" includes all inspections made
for the purposes enumerated in the four clauses of the first sentence
of that subsection, and is not limited to the minimum number of
inspections of the mine in its entirety mandated by the third sentence
of that subsection.
Conclusions of Law
1.

Section 105(c)(l), the discrimination provision of the Act,

which prohibits any form of interference with the exercise of the
statutory rights of a miner or representative of miners is a proper
vehicle for review of an operator's refusal to compensate a representative of miners pursuant to section 103(f).

1465

2.

The reference in section 103(f) to inspections "made pursuant

to subsection (a)" includes all inspections made for the purposes enumerated in the four clauses of the first sentence of section 103(a),
irrespective of whether the particular inspection may have been
triggered by section 103(i), and is not limited to the minimum number
of inspections of the mine in its entirety ~andated by the third sentence of section 103(a).
3.

Since the inspection at issue in this proceeding was made for

the purpose of "obtaining information relating to health and safety
conditions" including "especially hazardous" conditions authorized by
both sections 103(a) and (i) of the Act, Mr. Sparks' participation
was compensable under section 103(f).
4.

Taking into consideration the six criteria for the assessment

of civil monetary penalties, I find that a penalty for violation of
ser.tion 103(f) of $100 is consistent with the purposes and policy of
the Act.
ORDER
WHEREFORE, IT IS ORDERED that:
1.

Respondent CEASE AND DESIST from refusing to pay represen-

tatives of miners for participating in inspections made for the purposes of obtaining information relating to extrahazardous conditions
under section 103(i) of the Act.

1466

2.

On or before Wednesday, October 31, 1979, respondent shall

pay the civil penalty assessed in the amount of $100.
3.

On or before Wednesday, October 31, 1979, respondent shall

pay to Applicant, Arnold J. Sparks, Jr., back pay based on his regular
hourly rate for the period of time involved in the inspection of
March 28, 1978, with retroactive interest thereon of 9 percent (9%)
from March 28, 1978, until the date of payment.
4.

Counsel for the parties shall stipulate the dollar amount

due under paragraph 3 of this order.

If they are unable to stipulate

such amounts within 15 days of this order, counsel may file herein
proposed amounts due and, if necessary, a hearing shall be held on
any issues relating to such proposals.
5.

Within 10 days of payment of the amount due under paragraph

3 of this order, counsel for Applicant shall file herein a Satisfaction of Order reciting the amount pai<l.
6.

Respondent shall, within 15 days of the date of this order,

post a copy of this decision and order on a bulletin board at the
Shannon Branch Coal Mine, where notices to miners are normally
placed, and shall keep it posted there, unobstructed and protected
from the weather, for a consecutive period of 60 days.
Finally, it is ORDERED that,

;•~~t

to the satisfaction of the

above, this matter be, and hereby~. D v .

Joseph B. Kenne
Administrative Law
{lu.s.

GOVERNMENT PRINTING OFFICE:

1467

1979-281-729/3308