January 1981
Commission Decisions
1-08-81
1-09-81
1-19-81
1-27-81
1-28-81
1-28-81

Cyprus Industrial Minerals Corp.
U S Steel Corp.

Kenny Richardson
Sigler Mining, Inc.
Williamson Shaft Contracting Co.
El Paso Rock Quarries, Inc.

DENV 78-558-M
HOPE 75-708
BARB 78-600-P
WEVA 80'-519
VA 80-17-C
DENV 79-139-PM

Pg.
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5
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35

VA 80-94-R
LAKE 80-311
LAKE 80-360
LAKE 80-384
WEVA 80-84
PENN 79-89-R
WEST 79-241
VA 80-77
CENT 80-276-M
PENN 80-218-R
CENT 80-324-M
PENN 80-246-R
WEVA 81-33-R
VINC 79-39-PM
VINC 78-447-P
YORK 79-99-M
LAKE 79-219-M
SE 80-113-D
CENT 79-392-M
LAKE 80-207
LAKE 79-218
LAKE 80-210-M
LAKE 80-236-RM
WEVA 80-166-R
WEST 80-20-M
WEST 80-21-M
CENT 79-403-M
CENT 80-86-M
CENT 79-273..:M
LAKE 80-393-M
LAKE 80-385
WEVA 79-112-P
SE 80-66-M
WEVA 80-437-R
WEVA 79-218-R
DENV 79-389-PM

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Administrative Law Judge Decisions
1-02-81
1-05-81
1-05-81
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1-06-81
1-06-81
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1-21-81
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1-27-81
1-28-81
1-28-81
1-28-81
1-28-81

Harman Mining Corp. v. MSHA & UMWA
Quarto Mining Co.
Quarto Mining Co.
Quarto Mining Co.
Windsor Power House Coal Co.
Mathies Coal Co.
C F & I Steel Corp.
Jewell Ridge Corp.
Price Construction, Inc.
Sharp Mountain Coal Co.
Belton Sand & Gravel Co.
Barnes & Tucker Co.
U S Steel Corp.
Erie Blacktop, Inc.
Oliver M. Elam, Jr., Co., Inc.
Callanan Industries, Inc.
Mecco, Inc.
Sharon A. Pace v. Consolidation Coal Co.
Texas Lime Co.
Youghiogheny & Ohio Coal Co.
W. B. Coal Co.
Ogle County Highway Department
White Pine Copper Div., Copper Range Co.
Itmann Coal Co.
Riverside Cement Co.
Riverside Cement Co,
Lone Star Steel Co.
Midwest Minerals, Inc.
Kennecott Copper Corp.
Edward Kraemer & Sons, Inc.
Quarto Mining Co.
Island Creek Coal Co.
Dove Creek Granite Co., Inc.
Maben Energy Corp.
Ranger Fuel Corp.
Climax Molybdenum Co.

Commission Decisions

JAi~UARY

The following cases were Directed for Review during the month of January:
Secretary of Labor, MSHA v. Salt Lake County Road Department, WEST 79-365-M;
(Judge Vail, November 25, 1980)
Local 781, United Mine Workers of America v. Eastern Associated Coal Co.,
WEVA 80-473-C; (Judge Fauver, November 26, 1980)
Secretary of Labor, MSHA v. Lone Star Industries, Inc., VA 80-67-M;
(Judge Steffey, November 28, 1980)
Secretary of Labor, MSHA v. Carolina Stalite Company, BARB 79-319-PM, etc.;
(Judge Kennedy, December 2, 1980)
Secretary of Labor, MSHA v. Eastover Mining Company, VA 80-84; (Judge
Laurenson, December 17, 1980)
Secretary of Labor, MSHA v. Climax Molybdenum Company, DENV 78-553-M, etc.;
(Judge Cook, December 18, 1980)
Review was Denied in the following cases during the month of January:
Jackie R. Hammonds v. National Mines Corporation, KENT 79-345-D; (Judge
Fauver, November 24, 1980)
Secretary of Labor, MSHA v. Rockite Gravel Company, LAKE 80-130-M;
(Judge Bernstein, December 4, 1980)
Secretary of Labor, MSHA v. West Virginia Auger Corporation, WEVA 80-354;
(Judge Melick, December 10, 1980, default decision)
Secretary of Labor, MSHA v. Scotia Coal Company, BARB 78-306, etc.;
(Judge Kennedy, Interlocutory Review of April 30, 1980 order)

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

January 8, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. DENV 78-558-M

v.
CYPRUS INDUSTRIAL MINERALS
CORPORATION
DECISION
The issue before us is whether the site of the contested withdrawal
order is a mine as defined by section 3(h)(l) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979).
On August 3, 1978, an imminent danger withdrawal order was issued
to Cyprus Ind~strial Minerals (CIM), which filed an application for
review of that order. The area subject to the order was CIM's Bosal No.
1 claim. An independent contractor, Pee Wee Holmes, had contracted with
CIM to establish a portal and drift in order to assess the ore on the
claim.
Holmes had one employee, Raymond Pederson, aiding him in performing the work. They b~gan operations on July 29, 1978. On August 2,
they cleared away muck at the base of the portal and cleared the overburden above the portal in preparation for setting posts. They also
scaled from the top of the hill and the grotind, and barred and scaled
the brow. On August 3, Holmes and Pederson completed the barring and
scaling to their satisfaction and were in the process of setting posts,
when rocks suddenly broke loose from the face of the drift. Pederson
was crushed to death by the rocks. An. inspector from the Mine Safety
and Health Administration (MSHA) investigated the area and issued an
imminent danger withdrawal order under section 107(a) of the Act.
The administrative law judge found the operation to be a mine subject
to the jurisdiction of MSHA under the Act. The judge concluded that the
work at the Bosal No. 1 claim "was in fact work normally associated with
a talc mining operation." Dec. at 13. He stated:
Mr. Holmes was driving a drift at the time of the accident and this
work included blasting, drilling, cutting, removal and cleaning of
materials, timbering, bulldozing overburden, barring and scaling of
loose rock, and attempts at establishing a brow and a portal for
the express purpose of extracting minerals •••• Further, applicant

1

81-1-5

conceded the existence of a mineable ore body and that Mr. Holmes 1
work was directly related to the eventual mining of that ore; and,
by the very terms of the contract .•• Mr. Holmes agreed to establish
a portal and to drive an exploration drift. Under these circumstances,
I conclude and find that Hr. Holmes' work at the time of the accident
were in fact mining activities within the meaning of the Act, that
the work being performed at the Bosal Claim was work at a 11 mine 11 as
defined by the Act, and that MSHA had enforcement jurisdiction to
regulate those activities through the applicable mandatory
standards promulgated under the Act.
Id. The judge affirmed the withdrawal order and dismissed the application for review. For the reasons that follow, we affirm the judge.
The legislative history of the Act mandates a broad reading of the
expansive definition of "mine" in the Act.
The Senate Committee that
drafted the bill including the definition adopted in the Act stated with
regard to that definition:
The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's
intention that what is considered to be a mine and to
be regulated under this Act be given the broadest
possibl[e] interpretation, and it is the intent of this
Committee that doubts be resolved in favor of inclusion
of a facility within the coverage of the Act.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor,Committee on Human Resources; 95th Cong., 2d
Sess., Legislative History of the Federal Hine Safety and Health Act of
1977, at 60.2 (1978). See also Marshall y_. Stoudt' s Ferry Preparation Co.,
602 F.2d 589, 592 (3rd Cir. 1979), cert. denied, 444 U.S. 1015 (1980). In
addition, it is well established that safety and health legislation
should be liberally construed. See ~· Whirlpool Corp. v. Marshall,
, 100 S. Ct. 883,
(1980)(0SHAct); Freeman Coal Mining Co.
v.
504 F.2d 741, 744
(7

1/

The definition of a mine is found in section 3(h)(l) of the Act:
"coal or other mine" means (A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (b) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts,
, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from, the work
of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the
work of preparing coal or other minerals, and includes custom coal
preparation facilities .•.•

2

The purpose of the Mine Act is to protect miners against the hazards
of their occupation as Congress indicated in section 2(a)-(c) of the
Act. Those hazards clearly were present in this case, and the activity
at the Bosal claim must be included in the jurisdiction of the Act. CIN
has argued that the Bosal operations were purely exploratory and, therefore,
are not mining. It fears that "virtually any action taken merely to
assess the ore body, even if
the taking of surface samples or use
of a
counter, could convert an undeveloped mining claim into a
'mine 1 under the Act.If This case involves, however, neither exploration
with a geiger counter, nor taking of surface samples. Holmes and Pederson
attempted to drive a drift and establish a portal at the Bosal claim.
Their work was mining activity and involved the hazards intended to be
protected by the Act. 1'Jhether or not the Nine Act reaches all act
labeled "exploratory"--a question we need not decide today--the activity
at the Basal claim falls within the definition of mining. The Act
provides an
definition of a 11 minetr, which Congress stated must
be
the "broadest possible interpretation", with "doubts resolved
in favor of inclusion."
Accordingly, the judge's decision is affirmed.

! ..
'\,\•\,;1 )02
i\ \~\\:....,~
Nease, Commissioner
.'\·I
i

) ..

2
CIM also asserts that the j
erred in finding that the activity
at the Bosal claim was work normally associated with talc mining. CIN
relies on the uncontradicted testimony of its production manager that
CIM generally mines talc in open pits rather than from portals and
drifts, It is true that the record does not contain information on
11
norrnal talc mining operations." The judge's error, if any, is harmless. The question in the case was whether the operation was mining,
not whether it was 11 normal talc mining."

CYPRUS INDUSTRIAL MINEAALS CORP.
DENV 78-558-M

Distribution
O'MELVENY & MYERS
SCOTT H. DUNHAM
611 West Sixth Street
Los Angeles, California

90017

Cynthia Attwood, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
Administrative Law Judge George A. Koutras
Office of Administrative Law Judges
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Building 2
Falls Church, VA 22041

4

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

January 9, 1981

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. HOPE 75-708

UNITED STATES STEEL CORPORATION

IBMA No.

77-40

DECISION
This proceeding was initiated when United States Steel
Corporation filed an application for review of an order of
withd~awal issued pursuant to section 104(c)(2) of the
Federal Mine Health and Safety Act of 1969.
After hearing,
the administrative law judge affirmed the order and dismissed
the operator's application for review.
U.S. Steel appealed
to the Board of Mine Operations Appeals (BMOA).
BMOA acted
on that appeal on March 15, 1977, remanding the case to the
administrative law judge for a specific finding of fact to
be made as to whether there had been a complete inspection
of the mine subs~quent to the issuance of the section 104(c)(l)
order, and prior to the inspection which precipitated the
issuance of the withdrawal order under appeal.
The administrative
law judge on remand found that the applicant (operator) had not
established by a preponderance of the evidence that there had
been a complete inspection.

U. S. Steel again appealed to BMOA.
That appeal was
pending before the Board as of March 8, 1978, and is therefore
before the Commission for disposition.
30 U.S.C.A. §961 (1978).
In CF&I Steel Corporation, Docket No. DENV 76-46 (December 2,
1980), we held that "a prerequisite to the issuance of an order
of withdrawal under section 104(c)(2) of the 1969 Coal Act was
the absence of an intervening 'clean' inspection of the entire
mine, and that it was MESA's obligation to present a prims facie
case of that fact to sustain the order."
In this case, the judge
erred in not requiring MESA to present a prima facie case on the
issue of an intervening "clean" inspection.
We have reviewed the
record and find that MESA did not establish a prima facie case
of the absence of such an inspection.

5

81-1-9

Therefore, in accordance with our decision in CF&I Steel,
the decision of the judge is reversed and the order of withdrawal is vaca~ed.

Marian Pearlman Nease, Commissioner

Distribution
Billy M. Tennant, Esq.
U.S. Steel Corporation
600 Grant Street
Pittsburgh, PA 15230
Cynthia Attwood, Esq.
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

7

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

January 19, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. BARB 78-600-P

v.
KENNY RICHARDSON
DECISION
This case presents several issues arising out of an alleged violation of section 109(c) of the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. §801 et~· (1976) ("the Coal Act" or "the Act"). l/
In his decision, the administrative law judge concluded that Kenny
Richardson, Peabody Coal Company's (Peabody) day shift master mechanic,
had "knowingly authorized, ordered, or carried out a violation of 30 CFR
§77.404(a)". He found Richardson individually liable pursuant to
section 109(c) and assessed a $500 penalty against him. J:./ For the
reasons below, we affirm the judge.
On August 4, 1977, a federal mine inspector issued to Peabody a
notice alleging that it had violated 30 CFR §77.404(a) because:
[m]obile equipment in unsafe condition was not removed from service
immediately, in that, a crack in the lower chord of the boom of the
Bucyrus-Erie 1260 dragline was known to exist and not removed from
service. )_/
1
The alleged violation occurred when the Coal Act was in effect. The
Secretary of Labor filed a petition for assessment of civil penalty on
July 28, 1978, after the effective date of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979) ("the Mine
Act"). Thus, while the alleged violation arose under the Coal Act, the
case has been processed under the Mine Act review procedures. Section
109(c) of the Coal Act and section llO(c) of the Mine Act are identical
except for the redesignation of other affected sections. Therefore,
although our analysis would be the same under either Act, this decision
discusses the violation in terms of the statute in effect at the time
the alleged violation occurred, the Coal Act.
2/ The judge concluded that Richardson had not "knowingly" violated
another cited standard, 30 CFR §77.405(a). No issue concerning the
judge's disposition of this alleged violation is before us on review.
)_/ A dragline is "A [crane-·like] type of excavating equipment which
casts a rope-hung bucket a considerable distance, collects the dug
material by pulling the bucket toward itself on the ground with a second
rope, elevates the bucket and dumps the material on a spoil bank, in a
hopper, or on a pile." Dictionary of Hining, Mineral and Related Terms,
at 346 (Department of Interior, 1968).

8

81-1-13

The inspector issued the notice following his investigation of a fatal
accident that had occurred while the boom was being repaired, after the
dragline had been removed from service.
On July 28, 1978, the Secretary of Labor filed a petition for
assessment of civil penalty against Richardson. !±J Richardson contested
the action and a hearing was held. From the administrative law judge's
decision finding him in violation of section 109(c) of the Coal Act,
Richardson filed a petition for discretionary review. We granted the
petition for review and heard oral argument.
The issues before us are: 21
(1) Is the Interior Board of Mine Operations Appeals' decision in
Everett L. Pritt, 8 IBMA 216 (1977), correct insofar as it held that the
corporate operator need not be a party to a section 109(c) proceeding
against the corporate agent;
(2) Did the judge err in finding that the dragline was unsafe
while it was in service;

(3) Did the judge erroneously construe the "knowingly" element of
section 109(c) of the Coal Act;

(4) Did the judge err in concluding that Richardson knowingly
permitted an unsafe dragline to remain in service in violation of 30 CFR
§77.404(a);
(5) Is section 109(c) of the Coal Act unconstitutional because it
imposes liability only on agents of corporate operators?

In its decision in Everett.L. Pritt, the Interior Board of Mine
Operations Appeals concluded that the corporate operator need not be a
par
to a section 109(c) proceeding against an agent, even though a
necessary predicate for an agent's liability under section 109(c) is a
finding that the operator violated the Act. Richardson urges that the
Commission not follow the Board's
decision, asserting that section
109(c) requires that a corporate operator must be found to have violated
a mandatory standard, in a proceeding to which the operator is a party,
before liability can be imposed on the corporate agent. Richardson
submits that because the Secretary did not name Peabody as a partyrespondent to the present proceeding, and because Peabody's failure to
contest the.violation alleged against it should not constitute an
admission of liability, he cannot be held liable.
was cited separately for a violation of the same mandatory
standard, but was not named as a party-respondent to the instant proceeding. Peabody did not contest the charges against it and paid the
penalties assessed.
21 Our statement of the issues restates, but encompasses, the issues
raised in the petition for discretionary review.

9

Section 109(c) of the Coal Act provides:
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this Act
or any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision issued
under subsection (a) of this section or section 110(b)(2)
of this title, any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject
to the same civil penalties, fines, and ·imprisonment that
may be imposed upon a person under subsections (a) and (b)
of this section.
We find the language of section 109(c) and its legislative history
to be ambiguous and not dispositive of the question presented. Consequently, we have considered the arguments for and against the
decision, and are persuaded by the strong practical arguments underlying
the Board's decision. Here the corporate operator, Peabody, paid the
penalty sought
t it prior to formal assessment or a hearing. In
doing so, the corporate operator exercised its rights under the statute
and the applicable regulations not to contest the Secretary's allegation
of a violation and proposed penalty, and by operation of statute it
became a final order of the Commission not reviewable by any court or
agency. 30 U.S.C. 815(a); 30 CFR Part 100. As a result of the operator's
failure to contest the alleged violation, the Secretary could not have
securea an adjudication on the merits that the operator violated the
standard. Thus, unless the Secre
can prove the corporate operator's
violation of the standard as an element of proof in its case a~ainst the
agent, it would be impossible to reach the agent under section 109(c) in
those cases where, as here, the operator paid the proposed penalty and
thereby avoided a hearing on the merits.
Conversely, we are unpersuaded by the arguments in opposition to
Pritt. First, the rationale of Prit does not jeopardize either the
agent's or the operator's due process r
As did the Board, we
believe that due process does not require a determination of the
operator's violation in a proceedin~ separate from that in which the
agent is found liable. The
is not at risk for a penalty in the
proceeding against the agent. Whet~er or not the operator is found
liable in a separate proceedin~, the Secretary must still
prove
his case in a section 109(c) proceeding against the agent. The operator's
violation is merely an element of proof in the Secretary's case against
the agent. Thus, the agent's due process rights are
protected by
this procedure; he has notice and an opportunity to be heard in the
proceedings against him, including the opportunity to contest the
threshold allegation that the operator violated the standard.
Second, a proceeding against only the agent does not necessarily
permit the operator to escape without cost. Here the operator paid
penalties prior to litigation. Such a procedure conserves the operator's
and the government's resources by eliminating the need for a potentially
protracted and costly administrative proceeding against the operator.

10

Third, we find the rationale of the dissent in Pritt unpersuasive.
While Congress stated that the agent should not bear the brunt of
corporate violations, it stated also that an agent should "stand on his
own and be personally responsible for any penalties or punishment meted
out to him. 11 !!._/ There is no indication in the legislative history that
Congress intended to foreclose a penalty proceeding against an agent
because the operator was not also a par , or that it intended to
require that a separate proceeding be held to determine if the operator
violated the standard. Also, we note that the dissent misconstrued the
law in stating that in the absence of section 109(c), the 11 corporate
shield" would protect a corporate agent from personal liability. We
note that the corporate shield, as that terr.i is normally used, does not
protect agents; it protects shareholders. I.E. Fletcher, Cyclopedia
of the Law of Private Corporations, §41.3 at 192-193 (rev. perm. ed.
1974). Therefore, in the absence of section 109(c), agents would be
protected not by the corporate shield, but rather by the statute's
general enforceability against operators.
For these reasons, we conclude that the Board's decision in Pritt
correctly interpreted and applied section 109(c).
Did the judge err in finding that the machine was unsafe while in service?
The cited standard, 30 CFR §77.404(a), provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery
or equipment in unsafe condition shall be removed
from service immediately.
The administrative law judge found that the 1260 dragline "was unsafe to
operate and pursuant to 30 CFR §77.404(a) should have been removed from
service immediately". Richardson challenges the judge's finding. We
conclude that the judge's finding is supported by substantial evidence
of record and must be affirmed.
Richardson asserts that the judge's find
of unsafeness was not
supported by substantial evidence and that the evidence "compels the
opposite conclusion". He argues that the finding of unsafeness is
inconsistent with other findings made by the judge: that later repairs
weakened the lower chord and caused it to break; that the crack was not
considered unusual; and that the chord had been repaired numerous times.
Richardson contends further that the judge's finding, based in part on a
letter from the dragline's manufacturer after the accident, is unsound

6
Rep. John H. Dent
.-Pa.), House Debate on R.R. 13950, 9lst Cong.,
1st Sess. (1969); reprinted in Senate Subcommittee on Labor, Committee
on Labor and Public Welfare, 94th Cong., 1st Sess., Legislative History
of the Federal Coal Mine Health and Safety Act of 1969, Part I at 1191
(1975). (''Legis. Hist.").

11.

because the manufacturer's field repair instructions do not mention any
unsafeness. He also argues that the accident was caused by a design
defect, not by an unsafe machine.
The Secretary submits that Richardson "has •.. ignored the basic
legal principles pertaining to substantial evidence," because "[i]t is
axiomatic ..• that a judge 1 s finding cannot be overturned merely because
•.. the judge could have made a contrary finding.ii The Secretary asserts
that the judge could have, and did, reasonably conclude that the lower
chord was cracked in all but 9 inches of its 33-inch circumference at
the time of Richardson's inspection; that the crack was in a iocation
which had been repaired on numerous previous occasions; and that the
crack would continue to enlarge, thus permitting a reasonable inference
that the dragline was unsafe.
An observation may help to clarify our discussion and resolution of
the question of the dragline's unsafeness. A fatal accident occurred
after the machine had been taken out of service a,nd was under repair,
after the violation at issue allegedly had occurred. Although this
fatality is irrelevant to whether Richardson had knowingly failed to
remove the unsafe machine from service at an earlier time, it has colored
the discussion of the violation at issue by the parties and the judge. !}_/

extended discussion, two further challenges made
by
the sufficiency of the evidence. Richardson argues
that the judge's findings were not supported by substantial evidence
because the Secretary purportedly based his entire case on uncorroborated
hearsay evidence. First, evidence is admissible in an administrative
proceeding so long as it is not immaterial or irrelevant. Administrative
Procedure Act, 5 U.S.C. §556(d) (Supp. III 1979). Richardson v. Perales,
402 U.S, 389 (1971). The hearsay evidence relied on by the judge in
this case was both material and relevant: it related to the safeness of
the dragline and to Richardson's knowledge. Second, the judge relied
only in part on hearsay evidence. Virtually all of the hearsay regardin~
unsafeness and knowledge was corroborated by direct evidence. See discussion, .!_nfra, at 6.
Richardson asserts also that the proper standard of proof to be
applied by the administrative law judge is "direct and clearly convincing." The usual standard of proof required in an administrative
proceeding is a preponderance of the evidence, and we hold that this is
the appropriate standard of proof in proceedin~s before Commission
administrative law judges. See 2
Admin. Law §932, at 199.
In any event, the Mine Act imposes a substantial evidence test for
Commission review of findings of material fact. 30 U.S.C. §823(d)(2).
Ii_/
An alleged violation arising out of the fatality was also tried
before the judge: that Richardson had knowingly failed to ensure that
the boom had been properly blocked or supported during repairs, as
required by 30 CFR §77.405(a). The judge found for Richardson on this
point because there was insufficient evidence of the "knowingly"
element. The Secretary did not petition for review on this matter, and
it is not before us.

12

;,.·/'7

The presence of a crack in the boom of the dragline is undisputed.
There was also general agreement as to how long the crack had existed
and that it had worsened over time. Numerous witnesses including
Richardson testified that the crack, indicated by a drop in a pressure
gauge, had developed sometime before Richardson's Au~ust 2 examination
of .the dragline. Richardson testified that he was told about the crack
on August 1, the day before his examination, and that the crack "had
extended a sna.11 amount from what they could see." Tr. at 233-234; Tr.
II at 31, 130-131, 172, 187. He testified in addition that, on August 2,
prior to his examination, he was told that the crack was getting worse.
Tr. II at 64. When he examined the crack, he "could detect just a
little movement ..•. " Id. at 137. Other witnesses corroborated the fact
that the crack was getting larger; "it was moving a little." Id. at
172, 199.
The testimony relative to the extent of the crack is somewhat
ambiguous, and it is unclear whether Richardson realized the magnitude
of the crack.
Richardson testified that during his examination of the
dragline from the catwalk, he could see a 10-inch long crack. Tr. II at
65, 66. The Secretary's witnesses reiterated that fact, and testified
that the crack actually extended for about 29 inches of the chord's 38inch circumference. Tr. at 94, 158-161, 217, 261.
There was also testimony by the federal mine inspector and a
mechanical engineer familiar with the construction of the dragline that
a 29-inch crack, or even the 10-inch segment visible from the catwalk,
was serious enough to warrant removal of the machine from service. Tr.
at 168-169, 266-267. Their testimony was substantiated by one of
Richardson's witnesses, Peabody's di rec tor of heavy equipment. He
testified in the hypothetical that if he had seen a 9-inch crack from
the catwalk, and in investigating further had determined it was actually
a 27-30 inch crack, he would have shut the machine down iTI1JTlediately.
Ir. II at 263.
Richardson made a number of admissions, which go to the unsafeness
of the dragline, as well as to his knowledge of the condition. He
testified that he was concerned about the periodic recurrence of cracks
in the boom. Prior to August 2, he had contacted the manufacturer for
advice on repairs because he "wanted to achieve the possibility and
reduce the chances of this area that had been cracked. It had been too
numerous; it needed something to be stopped." Tr. II at 37-39, 64.
Despite his testimony that he did not consider the machine to be unsafe,
Richardson apparently decided that immediate repairs were necessary,
because he stated "that we needed to make some repairs pretty quick."
Tr. II at 66-67, 201. In response to a question about whether he
believed that the machine should be shut down for repairs, Richardson
answered, "As soon as I got the available equipment over." Id. at 67.
Therefore, his conclusion that the machine was safe is at odds with his
testimony relative to the immediacy of the risk.

13

Other evidence also tends to show that the dragline was unsafe
while it was in service. The Secretary introduced into evidence a
letter from the dragline 1 s manufacturer, Bucyrus-Erie, in which it
commented on the Secretary's post-accident report. The letter stated:
"The machine is equipped with a crack detection and warning system. The
crack should have been repaired immediatelv when it was detected. 11 Pet.
Exh. 38. '}_/ Richardson also introduced evidence of prior cracks and
repairs to support his argument that this crack was no different than
many that preceded it and impliedly did not make the machine unsafe. We
reject that argument. As the judge correctly stated:
It is not enough
that Mr. Richardson had allowed
the machine to operate with a cracked chord in the past.
This means only that the miners were lucky it did not
break in the past, not that it was safe or that it
should have been considered as safe.
We believe that the above evidence constitutes substantial evidence
to support the judge's finding that the machine was unsafe while in
service. We note, however, that the basis of the judge's finding of
unsafeness is at least partially defective. The judge noted testimony
by Richardson and his witnesses to the effect that the dragline was
safe. However, he accepted as more convincing the testimony of the
Secretary's witnesses "because the ultimate breaking of the chord
demonstrates that the machine was unsafe". (Emphasis added.)
Richardson correctly argues that this basis for the judge's finding is
unsound. The breaking of the chord on the day
the alleged
violation occurred did not necessarily demonstrate anything about the
safeness of the machine at the time of the alleged violation because, as
found by the judge, the collapse was caused, at least in part, by a
repairman's actions, and we do not rely on this rationale in reaching
our decision.
One further evidentiary issue merits comment. The judge found that
the dragline would have been safe and the violation at issue would not
have occurred if the dragline had been equipped with a modified suspension system. This finding is largely irrelevant to the violation at
issue because the question here is whether the machine, however equipped,
was unsafe while in service. The fact of unsafeness, rather than the
reason for the unsafeness, is relevant. If the machine was unsafe,
30 CFR §77.404(a) required that it be removed from service immediately. 10/
Richardson argues that the judge's finding of unsafeness is "glaringly
inconsistent" with the manufacturer's instructions for repair. This
argument is without merit because the instructions relate only to
support of the boom during repairs, not to the point at issue here,
i.e., the unsafeness of the machine before it was taken out of service.
Richardson refers also to the letter from Bucyrus-Erie as "clearly
inconsistent" with its field instructions, because it failed to mention
what Richardson contends was a design defect and the proximate cause of
the accident. Again, the cause of the fatal accident is not at issue.
10/ Although there was some controversy over the length of time
Richardson allowed the machine to remain in service, this factor relates
to the amount of the penalty, not to the fact of violation.

14

For the above reasons, we affirm the judge's finding that the
dragline was unsafe at the time of the alleged violation.
Did the judge erroneously construe the "knowingly''
element of section 109(c) of the Coal Act?
In his decision, the administrative law judge construed the term
"knowingly" as used in section 109(c) of the Coal Act to mean "knowing
or having reason to know." Richardson asserts that the judge should
have applied a "willfulness" test, rather than what he terms a "negligence" test. Alternatively, he urges that the·statute requires a
showing of actual knowledge. We reject both ar~uments and affirm the
judge.
The statutory provision and its legislative history provide little
guidance on the construction to be given to the term "knowingly".
Section 109(c), as enacted, adopted the language of section 308(c) of
the Senate bill insofar as it dealt with an agent's knowing violation.
Neither the Conference Report nor the prior Senate Report discussed the
knowledge requirement. 11/ The House bill imposed a "knowingly" element
for criminal penalties against agents, but not for civil penalties.
Although Congress did not specify the meaning of "knowingly" that
it intended to convey in section 109(c) of the Coal Act, we are per~
suaded that Congress did not intend that "knowingly" should be synonymous with "willfully." Section 109(b), which imposed criminal liability
for violatio~s. stated that any operator who
violates a
mandatory health or safety standard, or knowingly violates or fails or
refuses to comply with any order issued under section 104 .... " is
subject to fine 0r imprisonment.(Emphasis addecJ
We believe that
because the words "willfullyn and "knowingly" were used in the disj unc ti ve in section 109(b), and used singly in other sections of the
Coal Act, e.g., sections 109(c), (d) and (e),
must have intended
the words to have different meanings. See .S. v. Illinois Central
Ry. Co., 303 U.S. 239, 242, 243 (1938),~oting St. Louis and S.F.R. Co.
v. U.S., 169 F. 69, 71 (8th Cir. 1909); see also, .s. v. Consolidation
Coa~., 504 F.2d 1330, 1335 (6th Cir. 1974~There
, we reject
Richardson's argument that "willfulness" must be shown in order to
establish a violation of section 109(c) .

. Rep. No.
7 , 16, 71-72; S. 2917, 108; S. Rep. No. 91Cong., 1st Sess., 93 (1969); Legis. Hist. at 219, 889, 1515The Mine Act's legislative history on section llO(c)'s continued
use of the term "knowingly" sheds no further light on the issue. See H.
Rep. No. 95-31, 20; S. Rep. No. 95-181, 40-41; and the Conference
Report, S. Rep. No. 95-461, 57, 95th Cong., 1st Sess. (1977); reprinted
in Legislative History of the Federal Mine Safety and Health Act of 1977,
95th Cong., 2d Sess. (1978) at 376, 628-629, 1335.

15

The question remains, however, as to whether Congress intended the
interpretation reached by the judge in this case, that .,knowingly" means
"knew or should have known." As the judge observed:
The word 'knowingly,' as used in civil and criminal statutes, is
not a term of precise definition. The courts have given various
shades of meaning to the word, depending upon the context in which
it was considered.
In our view, the judge
analogized the meaning of "knowingly!!
as set forth in U.S. v.
., 92 F. Supp. 777 (D.S.C.
1950), to section 109
of the Coal Act. Although
Briar involved
the liquidated damages provision of the Walsh-Healey Public Contracts
Act, 41 U.S.C. §35 et~· (1976), and not the imposition of a civil
penalty as is involved here, that Act, like the Coal Act, has certain
humanitarian objectives; under it Congress used the government's purchasing power to raise labor standards. 92 F. Supp. at 779. Consequently, we believe the court's reasoning is equally applicable to the
statutory requirement at issue here. In Sweet Briar the court stated:
'[K]nowingly,' as used in the Act, does not have any meaning of bad
faith or evil purpose or criminal intent. Its meaning is rather
that used in contract law, where it means knowing or having reason
to know. A person has reason to know when he has such information
as woula lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its existence.
92 F. Supp. at 780. We believe this interpretation is consistent with
both the statutory language and the remedial intent of the Coal Act. If
a person in a position to protect employee safety and health fails to
act on the basis of information that gives him
or reason to
know of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute. 12/
Did the judge err in concluding that Richardson
knowingly permitted an upsafe machine to remain in service?
found that Richardson "knew or should have known that the
1260
was unsafe," and did not remove it from service immediately.
Therefore, "Richardson, as agent of ... [Peabody] corporation, knowingly
authorized, ordered or carried out ... [a] violation
30 CFR §77.404(a)]."
The j
stated that "[i]t was the kind of situation which would raise
a person's suspicion, particularly a mechanic with considerable exl1erience,
that
bad was happening which could well
personnel."
He concluded that Richardson "had such information as would lead a
person exercising reasonable care to acquire knowledge of the facts in
question or to infer [their] existence," as well as "considerable direct
knowledge about a potentially
situation."
_12/ We note that the judge's discussion of Richardson's "ne~ligence"
arose only in terms of evalua
the p~nalty assessment criteria of
section 109(a)(l) of the Coal Act, now section llO(a)(l) of the Mine
Act.

lG

Richardson submits that even if the judge's finding were properly
based on a "should have known" test, it erroneously imputed.to him
knowledge of the machine's unsafeness, in view of his testimony that he
was unaware of the modified intermediate boom suspension system and his
lack of control over the purchase and installation of the system.
Richardson contends:.further that his knowledge must be determined as of
the time before the accident, and that no evidence demonstrates that he
had any reason to consider the dragline unsafe.
We agree with Richardson that his knowledge must be determined as
of the time of the violation at issue on review,
before the
machine finally was removed from service and before the fatal accident
occurred. We conclude, however, that the record overwhelmingly supports
the judge's finding that Richardson knew or should have known the
machine was unsafe while it was in service. Although Richardson
emphasizes his ignorance of the modified intermediate boom suspension
system, the judge did not base his finding as to Richardson's knowledge
on the presence or absence of that system, nor do we. The judge
observed that, even without knowledge of the suspension system and the
protection it would have provided, Richardson had reason to believe the
machine was unsafe. The judge relied for the most part on the same
evidence recited in our previous discussion establishing the unsafeness
of the dragline. We find that this evidence also establishes that
Richardson, in view of his position as day shift master mechanic with
general supervisory authority over the dragline, knew or had reason to
know that the dragline was unsafe and should have removed it from
service. 13/
Accordingly, we affirm the administrative law judge's conclusion
that Richardson knowingly violated the mandatory safety standard at 30
CFR §77 .404(a).

Richardson also asserts
he cannot be held responsible for
Peabody's failure to comply with the manufacturer's recommended equipment modifications because he had no control over the purchase or
modification of equipment. This argument misses the mark. The violation at issue involves only the question of whether Richardson knowingly
permitted an unsafe machine to remain in service. There was undisputed
testimony, including admissions by Richardson, chat anyone, including
Richardson, could remove from service a machine considered to be unsafe.
This is the duty imposed by the standard. Richardson's authority to
order the modified suspension system or other equipment is irrelevant.

17

Is section 109(c) of the Coal Act unconstitutional
because it imooses liability onlv on corporate agents?
The administrative law judge rejected as a ground for dismissal
Richardson's claim that section 109(c) is unconstitutional because it
denies him
protection of law. The j
ruled that resolution of
challenges to the constitutionality of a provision of the Act is
reserved to the courts.
Before us Richardson reiterates his
that section 109(c) of
the Coal Act violates his constitutional r
equal protection
because it
ects him to a penalty solely because his employer does
business in a corporate form. He asserts that such a distinction is
illogical and bears no rational relation to the objective of mine
safety or to any difference between a corporate or other form of
business. The Secretary argues that the j
correctly held that the
Commission lacks the authority to decide the constitutional question
raised.
that the Commission has such power, the Secretary
argues that section 109(c) does not deny
protection to corporate
agents because the classification in that section has a rational basis.
The threshold question we must decide is whether we have the power
to determine the constitutionality of a provision of the Act. We
acknowledge the traditional view that administrative agencies lack the
power to decide whether legislation is constitutional because such
authority is reserved to the courts. 14/ K. Davis, 3 Administrative
Law
§20.04, at 74 (1967 ed). However, we find that view and
its underlying rationale deficient with
to the situation here
presented. See Southern Pacific Transp. Co; v. Public Utilities Commission, 18 Cal.2d 308, 556 P.2d 289 (1976); see
"The Authority of
Administrative Agencies to Consider the Constitutionality of Statutes,"
90
. L. Rev. 1682 (1977); and
Adjudication of
Constitutional Questions; Confusion in Florida Law and A Dying Misconception in Federal Law," 33 U. Miami L.
. 527 (1979).
We note first that the Mine Act
that this Commission,
rather than the United States district courts, has primary adjudicative
jurisdiction over disputes arising under the Act.
30 U.S.C. §823(d).
Congress authorized the Commission to decide independently questions of
fact, law and policy.
Id.; see also,
v. Helen Mining Co.,
1 Fr1SHRC 1796, 1800-1802 (1979), ~· for
Nos. 79-2518,
79-2537 (D.C. Cir., December 19 and 21, 197

Many of the cases generally cited for the proposition that an
administrative agency may not decide constitutional questions stop short
of an absolute bar to ag~ncy determination, or do so in conditional
language. "Adjudication of ... constitutionality ... has generally been
thought beyond the jurisdiction of administrative a~encies." Oestereich
v. Selective Service Local Bd. No. 11, 393 U.S. 233, 242 (1968)(J.
Harlan, concurring) (emphasis added). See
v. Robison, 415 U.S.
361, 368 (1974).

18

that authority is that this Commission, whose members are sworn to
upho1d the Constitution, must make its determinations in accordance with
the Constitution. Every branch of the government is obligated to uphold
the Constitution, and "a law repugnant to the Constitution is void."
Marbury v. Madison, 5 U.S. 368, 391 (I Cranch 137)(1803). We believe
that we cannot properly fulfill our duty to interpret the law and to
apply it constitutionally, without at the same time deciding whether the
law or a portion of it conforms to the Constitution.

We have examined with great care, and have found inapplicable to
us, the arguments advanced for denying administrative agencies the power
to resolve constitutional questions. The conventional view is that only
Article III courts, insulated from the influences of both the executive
and legislative branches, possess the independence necessary to render
an impartial decision on a constitutional question.
We note,
however, that this reasoning is generally applied to administrative
agencies significantly different from this Commission, in that they
often have combined regulatory and adjudicatory responsibilities.
Because we do not have these combined functions, but are vested with
solely adjudicative responsibilities, we are not susceptible to any
inherent bias believed to exist in agencies that simultaneously
regulate, prosecute and adjudicate. 16/
We are insulated also from pressures that some fear might be
exerted on adjudicatory components that are one part of a larger
executive department. The Mine Act established the Commission as an
independent administrative adjudicatory agency. Commission members are
appointed by the President with the advice and consent of the Senate.
Members are selected from persons "who by reason of training, education,
or experience are qualified to carry out the functions" of the office.
Members are appointed for fixed terms of six years and can be removed
from office only for "inefficiency, neglect of duty, or malfeasance in
office". 30 U.S.C. §823. We believe that this independence assures the
necessary impartiality for deciding constitutional questions.
E.g., J. Monaghan, "First Amendment Due Process, 11 83 ==-=-:_:_.-=-:__::.:.;:;..;_;;_
Harv.
• 523 (1970).
16/ The Board of Tax Appeals (BTA) was established in 1924 as an independent adjudicatory agency in the executive branch, and retained that
characteristic after being renamed the Tax Court in 1942. Old Colony
Trust Co. v. Commissioner, 279 U.S. 716, 721, 725 (1929). 90 Harv. L.
Rev. 1682, 1687, n. 29. Section 951 of the 1969 Tax Reform Act, 26
U.S.C~ §lOl(a) et seq., converted the Tax Court to an Article I legislative court, but its prior designation as an independent adjudicatory
agency in the executive branch did not change. Although the BTA
initially divided sharply over its authority to decide constitutional
questions (Cappellini v. Commissioner, 14 B.T.A. 1269, 1293 (1929)), it
later found that it had such power and has since exercised it "with the
apparent acquiescence of reviewing courts." 90 Harv. L. Rev., supra, at
1687, n. 29.
The Occupational Safety and Health Review Commission, an independent
adjudicatory agency with functions analo~ous to this Commission's, has
stated that it has "no power to declare any portion of its enabling
legislation unconstitutional.'; Buckeye Industries, Inc., 3 BNA OSHC
1837, 1975-1976 CCH OSHD ,120,239 (No. 8454, 1975). However, because the
OSHRC did not discuss the underlying rationale for its conclusion, we
find little that is instructive in its decision.

19

In addition to our institutional independence, the judicial nature
of Commission proceedings adequately preserves due process. Our procedures
are largely governed by the Administrative Procedure Act, 5 U.S.C. §551
et~.; notice and an opportunity to be heard are provided; parties may
retain counsel; and hearings culminate in reasoned opinions rendered by
experienced administrative law judges. These decisions may then be
reviewed by Presidentially-appointed Commissioners who possess the
requisite competence for exercising their adjudicatory powers. 30
U.S.C. §823. Due process is protected further because aggrieved parties
may appeal an adverse Commission decision to a United States court of
appeals. 30 U.S.C. §816. Therefore, because of our "essentially
judicial procedures and experience," we avoid the potential for bias
that would undermine our ability to decide constitutional issues.
Aircraft and Diesel Corp. v. Hirsch, 331 U.S. 752, 769 (1947); Dobson v.
Commissioner, 320 U.S. 489 (1943). We believe that the judicial nature
of our proceedings assures parties of reasoned consideration of their
arguments and provides us with the institutional competence to decide
constitutional issues, further distinguishing us from other agencies
denied this authority by the courts. See Oestereich, 393 U.S. at 242
{J. Harlan, concurring); cf. Glines v. Wade, 586 F.2d 675, 676 (9th Cir.
1978).
-Other reasons support our conclusion as well. It is generally
agreed that, because of its expertise, an administrative agency may
entertain constitutional issues at least to develop a factual record and
clarify the issues for ultimate disposition by a reviewing court. An
administrative agency may also hear constitutional issues where it is
possible that the administrative proceeding will leave no remnant of the
constitutional question. Weinberger v. Salfi, 422 U.S. 749, 765 (1975);
Public Utilities Commission of California v. U.S., 355 U.S. 534, 539
(1958); Far East Conference v. U.S., 342 U.S. 570, 574 (1952). It has
also been stated that an agency may resolve constitutional questions
"not by reviewing the constitutionality df its statute but by interpreting the statute and by applying constitutional principles to specific
facts." Babcock and Wilcox v. Secretary of Labor and Occupational
Safety and Health Review Commission, 610 F.2d 1128, 1139 (3rd Cir.
1979). We reject as undesirable and artificial, however, the conventional view that an agency may only compile a factual record relevant to
a constitutional· issue or apply constitutional principles to particular
facts, but may not pass judgment on the ultimate question of the constitutionality of the organic act or portions of it. As a solely
adjudicatory agency the Commission regularly considers myriad legal
questions, many with substantial constitutional components. We decide
due process claims and consider constitutional objections to rules,
standards, or other administrative actions. It is our belief that the
judicial role of the Commission, admittedly adequate for entertaining
various constitutional objections to agency actions, also appropriately
permits the Commission to entertain constitutional objections to the
underlying statute, especially where, as here, review in a United States
court of appeals is available.
Finally, there are also several important policy considerations
supporting our authority to decide constitutional questions. In establishing the Commission, Congress intended that the Commission have primary
'jurisdiction over disputes arising under the Mine Act. The ability to
pass upon constitutional challenges is a vital step in the resolution of

20

many of those disputes, and is
consistent with Congress' expressed
preference for administrative adjudication under the Act. Such administrative review, we believe, will foster efficient and expeditious
resolution of constitutional issues, as it does with non-constitutional
questions, reduc
costs of litigation to the parties as well as reducing
delays in the ultimate disposition of the cases in which such questions
arise. We believe also that courts will benefit from the Commission's
action in compiling a complete factual record and in analyzing the
constitutional question presented within the context of that record and
the statute that the Commission interprets on a daily basis.
In sum, we are persuaded that there is no valid reason for our
refusing to address the constitutional challenge raised against the
enforcement of the statute in this case. Therefore, we now turn to an
examination of Richardson's equal protection claim.
The first inquiry made in examining a claimed denial of equal protection is whether a suspect class or a fundamental r
is involved.
If the regulation burdens a suspect classification or a fundamental
right, a strict scrutiny test is applied. If a suspect classification
or a fundamental right is not involved, a rational relationship test
applies. Vance v. Bradley, 440 U.S. 93 (1979);
Retirement v·.
427 U.S. 307 (1976).
Both tests require analysis of the purpose of the legislation and
the means the legislature has chosen to accomplish that purpose. Where
the rational relationship test is applied, the law is presumed to be
valid. The challenging party has the burden of proving that there is no
rational reason for the means the legislature has used to reach its
purpose or end. See
v. Natural Carbonic Gas Co., 220 U.S. 61
(1911), and Williamson v. Lee Optical, 3Mi U.S. 483 (1955). The fact
that some legislation must, by its nature, classify people or activities
is recognized by the Supreme Court.
s Board o
v.
supra. The question is whether the means are rationally
related to the ends.
Under the strict scrutiny test, once it is established that a.
suspect class or a fundamental right is adversely affected by a classificai::ion, the burden shifts to the government to show a "compellinq;
state interest" to justify the le~islation. The government must also
prove that, not only is there a rational relationship between the
purpose of the law and the means by which it
accomplished, but that
the means are necessary to the accomplishment of those ends. A court
must look to see whether there actually is a less restrictive alternative
to the
ture's choice.
McLauqhlin v.
379 U.S. 184
(1964);
413 U.S. 717 (1973);
Casualty
and Surety Co., 406 U.S. 164 (1972).
Persons classified according to the business form of their employer,
, corporate agents versus non-·corporate agents, do not fall within
any of the suspect classifications. Nor does imposing liability for

21

payment of civil penalties infringe on fundamental rights. 17/ As the
Supreme Court observed in Murgia: "[W]e have expressly stated that a
standard less than strict scrutiny 'has consistently been applied to .••
legislation restricting the availability of employment opportunities.'"
427 U.S. at 313. Thus, Richardson must carry the burden of proving that
the classification in section 109(c) is not rationally related to the
purpose of the Act.
To assist in our analysis of the denial of equal protection claimed
in this case, we turn to a discussion of six Supreme Court cases applying
the rational relationship test. One of the more recent equal protection
cases is Massachusetts Board of Retirement v. Murgia, supra. There the
Court was faced with an equal protection challenge to a Massachusetts
statute requiring that uniformed state police retire at age 50. Despite
evidence that many persons over the age of 50 continue to be physically
and mentally capable of meeting the rigorous demands of their profession,
the Court found that the statute is "rationally related to furthering a
legitimate state interest." 427 U.S. at 312. The Court conceded that
"the state perhaps has not chosen the best means to accomplish" its
purpose of protecting "the public by assuring physical preparedness of
its uniformed police." 427 U.S. at 314, 316. In applying the rational
relationship test, the Court stated:
This inquiry employs a relatively relaxed standard
reflecting the Court's awareness that the drawing
of lines that create distinctions is peculiarly
a legislative task and an unavoidable one. Perfection in making the necessary classifications
is neither possible nor necessary. [citation
omitted]. Such action by a legislature is presumed to be valid.
427 U.S. at 314.

11/ The Court provided the following list of fundamental rights and
suspect classes in Massachusetts Board of Retirement v. Murgia, supra,
427 U.S. at 312 n.3, 4: The fundamental rights:~., Roe v. Wade, 410
U.S. 113 (1973) (right of a uniquely private nature); Bullock v. Carter,
405 U.S. 134 (1972) (right to vote); Shapiro v. Thomoson, 394 U.S. 618
(1969) (right to interstate travel); Williams v. Rhodes, 393 U.S. 23
(1968) (rights guaranteed by the First Amendment); Skinner v.
ex rel. Williamson, 316 U.S. 535 (1942) (right to procreate). The
suspect classes: !.:_g_., Graham v. Richardson, 403 U.S. 365 (1971)
(alienage); McLaughlin v. Florida, 379 U.S. 184 (1964) (race); Oyama v.
California, 332 U.S. 633 (1948)(ancestry).
There is also a very limited middle ground: gender and age. The
Court has shied away from labelling these classifications as being
suspect, but in most gender cases and some age cases the Court has
imposed a 11 substantial relationship" test, rather than either of the two
standard tests: rational relationship or strict scrutiny. See Califano
v. Webster, 430 U.S. 314 (1977)(age); Craig v. Boren, 429 u.S:-190
(1976)(sex); and Personnel Administrator of Mass. v. Feeney, 442 U.S.
256 (1979).
\

22

Smith v. Cahoon, 283 U.S. 553 (1931), concerned the imposition of
certain licensing requirements upon connnercial carriers, excluding
private carriers a.nd commercial carriers transporting agricultural and
dairy products. The statutes in question carried criminal sanctions.
The Court held that, although the state has "broad discretion in
classification in the exercise of its power of regulation, ••• the
constitutional guaranty of equal protection of the laws is interposed
against discriminations that are entirely arbitrary." 283 U.S. at 566567. The classifications drawn in the laws in question were found to be
so totally arbitrary in their distinctions as to be violative of equal
protection.
Colgate v.
296 U.S. 404 (1935), concerned a tax scheme that
imposed a higher tax on dividends derived from corporations outside the
state then on dividends derived from resident corporations. This portion
of the tax was found to be constitutional because the Court found a
"fair and reasonable" reason for the differentiation. Another portion
of the scheme taxed interest from interest-bearing securities, but
exempted interest received on account of money loaned within the state,
while taxing income derived from similar loans made outside the state.
This portion of the tax was found to be unconstitutional. The Court
found that the tax was not rationally related to the purpose of the
Act--raising revenue. It noted that if the legislation had gone further
and required that the income from in-state loans be invested within the
state as well, then it would have had a purpose: increasing the actual
wealth within the state. The Court declined to interpret the provision
in this manner, how-ever, "for that would be to amend [the provision] and
not to construe it." 296 U.S. at 424. Thus, the Court did not reject
the entire tax scheme, but rather invalidated only that portion for
which it was unable to find a rational explanation.
In Liggett Co. v. Lee, 288 U.S. 517 (1933), a Florida tax statute
was challenged on equal protection grounds. The purpose of the statute
was to require the licensing of all stores. The act established a
licensing fee on a per store basis, but the amount of the per store fee
increased if the owner operated stores in more than one county. The
Court was unable to find a rational reason for increasing the tax where
an owner had a store in more than one county. The Court found that the
statute was not aimed solely at large corporate chains, which frequently
owned stores in more than one county, but that it was aimed at all store
owners. The Court stated:
The
lature of Florida has declared the purpose
and object of the statute to be to tax every store owner
and operator, and we should not go behind that declaration
and attribute to the lawmakers some other ulterior design.
Corporations are as much entitled to the equal protection
of the laws guaranteed by the Fourteenth Amendment as are
natural persons. [Citations omitted.] Unequal treatment
and arbitrary discrimination as between corporations and
natural persons, or between different corporations, inconsistent with the declared object of the legislation, cannot
be justified by the assumption that a different classification
for a wholly different purpose might be valid.

23

Those provisions of §5 which increase the tax if
the owner's stores are located in more than one county
are unreasonable and arbitrary, and violate the guaranties
of the Fourteenth Amendment. 288 U.S. at 536.
Williamson v. Lee Optical, 348 U.S. 483 (1955), may be the seminal
case concerning the Supreme Court's view of the requirements of equal
prote~tion and due process.
In Williamson the Court upheld an Oklahoma
statute that forbade opticians from filling or duplicating eye glass
lenses without a prescription from an opthamologist or optometrist. The
Court stated 11 that regulation of economic interest will violate the
principle of equal protection if such regulation fails to bear a
rational relation to the objective sought. 11 However, the Court went on
to find the challenged statute constitutional:
The problem of legislative classification is a perennial
one, admitting of no doctrinaire definition. Evils in
the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. [Citation omitted.] Or the reform may
take one step at a time, addressing itself to the phase
of the problem which seems most acute to the legislative
mind. [Citation omitted.] The legislature may select one
phase of one field and apply a remedy there, neglecting
the others.
348 U.S. at 488-89. The Court speculated on various rationales the
legislature might have had in mind when enacting the legislation. From
these speculations, the Court concluded that "[w]e cannot say that the
regulation has no rational relation to that objective and therefore is
beyond constitutional bounds." 348 U.S. at 491.
A final example of the Supreme Court's rational relationship
analysis is Idaho Department of Employment v. Smith, 434 U.S. 100
(1977). The statute involved precluded any person who attended school
during the day from receiving unemployment benefits. The classification
challenged was night students versus day students. The Court stated:
The holding below misconstrues the requirements of
the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred
to legislative determinations concerning the desirability
of statutory classifications affecting the regulation of
economic activity and the distribution of economic benefits.
11
If the classification has some 'reasonable basis,' it does
not offend the Constitution simply because the classification
'is not made with mathematical nicety or because in practice

24

it results in some inequality.'"
v. Williams,
397 U.S. 471,485 (1970), quoting Lindsley v. Natural
Carbonic Gas Co., 220 U.S. 61, 78 (1911). See also
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307
(1976); Mathews v. De Castro, 429 U.S. 181 (1976);
Jefferson v. Hacknev, 406 U.S. 535 (1972). The legislative
classification at issue here passes this test. It was
surely rational for the Idaho Legislature to conclude
that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during
daytime hours imposes a greater restriction upon obtaining
fulltime employment than does attending school at night ....
The fact that the classification is imperfect and that the
availability of some students desiring full-time employment
may not be substantially impaired by their attendance at
daytime classes does not, under the cases cited supra,
render the statute invalid under the United States
Constitution.
434 U.S. at 101-102. Thus, despite the imperfection in the classification, the legislation was upheld because the Court found a rational
reason to support the classification.
Richardson here argues that the classification of agents according
to the business form of their employers cannot withstand constitutional
challenge. Applying the rational relationship test we have examined
whether the classification established by Congress in section 109(c) is
rationally related to the accomplishment of its intended purpose, As
discussed below, we find a rational basis for the classification in
section 109(c) and reject Richardson's challenge.
The expressed fundamental purpose of the 1969 Coal Act is to ttprotect
the health and safety of the Nation's coal miners." 30 U.S.C. §801 (1976),
Section 109(c) is intended to provide one vehicle for accomplishing this
purpose by holding corporate agents who commit knowing violations
individually liable. We believe that imposing personal liability on
corporate agents furthers the overall goal of the Act by providing an
additional deterrent to many of those individuals in a position to
achieve compliance. That this was the intent of Congress in enacting
section 109{c) is clear. As stated in the legislative history concerning this section:
The committee expended considerable time in discussing the
role of an agent of a corporate operator and the extent to
which he should be penalized and punished for his violations
of the act. At one point, it was agreed to hold the corporate operator responsible for any fine levied against an
agent. It was ultimately decided to let the agent stand
on his own and be personally responsible for any penalties
or punishment meted out to him.

25

The committee
zes, however, the awkward situation of
the agent with respect to the act and his supervisor, the
corporate operator, and his position somewhere between the
it did not want to break the chain of responsibility for
such violations after penetrating the corporate shield.
The committee does not, however, intend that the
should bear the brunt of corporate violations. It is presumed that the
is often acting with some higher
authority when he chooses to violate a
health
or safety standard or any other provision of the act, or
worse, when he knowingly violates or fails or refuses to
comply with an imminent danger withdrawal order or any
final decision on any other order.
Legis. Hist. at 1041-1042 (Emphasis added.)
Furthermore, as stated by the Supreme Court in Lindsley v. Natural
Carbonic Gas Co.,
"when the classification ••• is called into
question, if any state of facts reasonably can be conceived that would
sustain it, the existence of that state of facts at the time the law was
enacted can be assumed". 220 U.S. at 78. The Secretary has proffered a
further explanation in support of the rationality of section 109(c). In
his brief the
stated:
Congress was obviously aware that it is often difficult
to penetrate the corporate decision-making processes of
large corporate mining operations and determine t~e precise involvement of individual officers, directors, and
agents in any given situation. In contrast, when a mine
is run by an individual partnership, or association,
generally the operation is smaller and the individual,
partner, or associate is involved in the day-to-day
operation of the mine and thus is chargeable as a mine
operator himself under the Act.
The rational basis for the classification in [section
109(c) of the Coal Act] is the Congressional acknowledgement
of the
for piercing the
shield and
placing the blame directly on the individuals responsible
for the violations.
Also, as stated by counsel for the Secre

at oral argument:

One of the problems which concern[ed] the Congress when
they considered the Coal Act was that while operators
who conducted their business in the form of a partnership or sole proprietorship were directly and personally
liable for violations of the Act, the decision makers in
a mine conducting business within a corporate structure

20

were insulated from such personal liability •••• Congress also knew that a high proportion of the nation's
coal mines are operated by corporate operators.
In fact, as we noted in our brief, the top fifteen
corporate operators of coal in this country produce
forty percent of all the coal mined in the United
States.
To remedy this inequity, Congress chose to make
corporate operators agents, as well as directors and
officers, liable for knowing violations of the Act •...
We find that the explanations set forth in the legislative history
and by the Secretary provide rational reasons for the classification
made in section 109(c). We recognize that much of the reasoning for
placing individual liability on agents of corporate operators would
likewise be applicable to imposing similar liability on agents of noncorpora te operators. Such agents are also in a position to secure
compliance with the Act's requirements to assure the safety of miners,
but unlike their corporate counterparts they are not subject to the
threat of direct enforcement against them. As noted by the Supreme
Court in
v.
397 U.S. 471, 485 (1970),
Lindsley v. Natural Carbonic Gas Co.,
however:
If the classification has some 'reasonable basis', it does
not offend the Constitution simply because the classification 'is not made with mathematical nicety or because
in practice it results in some inequality'.
As also recognized by the Supreme Court, Congress "may take one step at
a time addressing itself to the phase of the problem which seems most
acute to the legislative mind". Williamson v. Lee Optical, supra, 348
U.S. at 488-489. Finally, as cogently stated by the Supreme Court in
Vance v.
supra, where a statutory distinction does not burden
a suspect group or a fundamental interest,

••. courts are quite reluctant to overturn governmental
action on the ground that it denies equal protection of
the laws. The Constitution presumes that, absent some
reason to infer antipathy, even improvident decisions
will eventually be rectified by the democratic process
and that judicial intervention is generally unwarranted
no matter how unwisely we may think a political branch
has acted. Thus, we will not overturn such a statute
unless the varying treatment of different groups or
persons is so unrelated to the achievement of any
combination of legitimate purposes that we can only
conclude that the legislature's actions were irrational.
440 U.S. at 96-97 (footnotes omitted).

27

Applying ~hese principles we find that Congress' imposition of
liability on corporate agencs is not totally arbitrary but has a rational
basis, and therefore conclude that the classification in section 109(c)
does not offend the Constitution.
Accordi:1gly, we affirm the judge's conclusion that Richardson
violated section 109(c) of the Coal Act by
equipment in an unsafe condition
the $500 penalty assessed
the

A. E. Lawson,fCo .issioner

.

\j \I ' '
\l.'~1

. ~'- 'j·•I , "

\v,.. 'JI 1,(.1' '

I \)

i_a_l·

·'\

/

I

1'

ti ".l ..,,

1,.u..t..-\..1·

Marian Pearl~~Nease, Commissioner
R. V.

Bad~ley,

Chairman, Concurring In Part And Ilj.ssenting In Part.

I must dissent from that part of the decision that upholds the
constitutionality of section 109(c) of the Coal Act. I do so because I
can perceive no rational basis for singling out the
of corporate
operators for violations of the Act and excusing other a~ents for the
same acts. The purpose of the section is to penalize individuals
responsible for the
of the miners who knowingly fail in that
res?onsibility.
I fail to see how mine health and
is advanced
when agents who are guilty of some grievous act are allowed to escape
liability solely because
work for a partnership or sole proprietor-

ship.
In this re~ard, the Secretary's comments quoted on pages 19-20 of the
ority are wide of the mark. The question is not whether the liability
falls directly upon the partnership or sole proprietorship but whether
it can be placed upon the
of those entities. In the case of a
corporation, both the
ion and those individuals ennumerated in
section 109(c), are subject to the assessment of a civil penalty. This
is the case before us. However, under the same circumstances, the agent
of a non-corporate operator would escape liability. Accordingly, I find
no rational basis for the exclusion if the purpose of the section is to
responsibility where it properly belongs. In my opinion not only
is the classification
but exculpatory. The exoneration of one
class of offenders under the Act provides little support for the rational
basis test.

~

Richard V. Backley, Chairman

28

D

Rees
Esq.
Sam Jarvis,
Jarvis,
& Kinney
0 1 Bryan Court Building
P.O. Box 569
Greenville, KY 42345
J. Philip Smith, Esq.
MSHA Trials Branch
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Kenny Richardson BA~B 78-600-P

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

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

January 27, 1981

Docket No. WEVA 80-519
v.
SIGLER MINING, INC.
DECISION
We directed the judge's order of default against Sigler Mining for
review sua sponte on December 4, 1980. 30 U.S.C. §823(J)(2)(B) (Supp.
III 1979). The Secretary had filed a petition for assessment of civil
penalties on August 18, 1980. On October 6, an order to show cause was
issued requiring Sigler Mining to file an answer within 15 days or show
good reason for its failure to do so. Sigler Mining responded on
October 18 by a letter to the judge stating that due to poor market
conditions and recent resumption of operations, it did not have funds to
pay the penalty. The judge assigned to the case th,en issued an order
declaring the operator to be in default, and assessing the proposed
penalty of $1,174. The order noted that Commission Rule 28, 29 C.F.R.
§2700.28 (1979), requires that answers include a statement of why the
violations are contested and whether a hearing is requested. The judge
found that the operator's letter to the judge failed to comply with
these requirements. We disagree. Sigler Mining filed pro se a timely
response to the show cause order alleging an inability to pay the
penalties. This response at least brings into issue one of the six
criteria to be considered in assessing penalties under the Act--effect
of the size of the penalty on the operator's ability to continue in
business. 30 U.S.C. §820(i)(Supp. III 1979). As we have indicated in
the past, a default judgment is a harsh remedy not suitable when a party
has substantially complied with a show cause order, and has not
demonstrated bad faith. Coaltrain Corp., 1 FMSHRC 1831 (1979); BB&W
Coal Co. Inc., 1 FMSHRC 467 (1979). We express no view, of course;-as
to the merits of the operator's allegations, or as to the effect, if
true, on any penalty ultimately assessed.
Accordingly, the order is vacated and the case is remanded.

A. E. L w n, Commissioner

\\.i~~ui. ~Qi}~Q1Hf),c~ \llcu..o
1

Marian Pearlman Nease, Commissioner

30

81-1-17

Distribution
Cynthia Attwood, Esq.
Deputy Associate Solicitor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, Virginia 22203
Leonard L. Sigler, President
Sigler Mining Company, Inc.
Jodie, West Virginia 26674
Administrative Law Judge Joseph Kennedy
Federal Mine Safety and Health Review
Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

31

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

January 28, 1981
LOCAL UNION NO. 6843, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA
v.

Docket No. VA 80-17-C

WILLIAMSON SHAFT CONTRACTING
COHPk'TY
DECISION
This proceeding arises under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §801
(Supp. III 1979). The United Mine
Workers of America applied for compensation for 13 miners pursuant to
section 111 of the Act. 1_/ The company moved to dismiss the application
for failure to state a claim upon which relief could be granted. The
administrative law judge granted the motion. We affirm the judge.
In its application the union alleged the following: that an MSHA
inspector visited the mine to conduct a roof-control inspection; that
during the inspection he found that a majority of the roof bolts used to
support the roof in a particular area lacked a proper amount of torque;
that the inspector advised the company the only work which could be done
in the area was to support the roof: and that as a result of this statement normal mining operations halted and 13 miners were idled. The
union asserted that the inspector's instruction amounted to an oral
imminent danger order of withdrawal under section 107(a) of the Act. 1_/

]:_/

Section 111 of the Act provides:
If a ... mine is closed by an order issued under section 103,
section 104, or section 107, 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 nore 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 •.•.
Section 107(a) states:
If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized representative of
the Secretary finds that an imm..i..nent danger exists, such representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except those
referred to in section 104(c), to be withdravm from, and to be
prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and
the conditions or practices which caused such imminent danger no
longer exist .•..
81-1-19

The judge noted that section 107 specific~lly requires imminent
danger orders to be written. ]_/ The judge found that under the circumstances alleged in the application, the only type of withdrawal order
the inspector could have issued was one for imminent danger and that he
clearly did not issue one. Without an order upon which to base the compensation claim, the judge concluded the union's application was fatally
defective.
The union would have us find the judge erred. It argues the
requirement of the Act that an innninent danger order be in writing can
not be relied upon to defeat a compensation claim. We disagree.
The mandate of section 107(d) that an imminent danger order be
written is explicit. It reflects congressional concern that an operator
be adequately advised of the imminent danger so that corrective action
may be taken. !!._/ In so doing it offers protection to an operator's
property and to a miner's life and limb. Moreover, it offers all
parties procedural protection in any subsequent litigation by placing
them on notice as to the conditions which constitute the alleged imminent
danger and the conditions under which the order arose. Presumably this
el~minates much of the speculation and dispute an oral order would
almost surely engender. This is not to say that a claim for compensation may never be based upon an oral finding of imminent danger.
There may well be extraordinary circumstances wherein an inspector who
makes such a finding fails in or is prevented by subsequent events from
confirming it in a written order of withdrawal. However, no such special
circumstances were ple~ded by the union. The mere assertion that an
inspector's statements are tantamount to an oral order without assertions
that he intended to issue an imminent danger order and as to why the
inspector was prevented from reducing it to writing will not support a
claim. Accordingly, the judge's order is affirmed.

MarianlPear man Nease,
Section 107
) state:
(c) Orders issued pursuant to subsec i
(a) shall contain a
detailed description of the conditions or practices which cause and
constitute an imminent danger and a description of the area of the
coal or other mine from which persons must be withdrawn and prohibited from entering.
(d) Each finding and order issued under this section .•. shall
be in writing, and shall be signed by the person making them.
!!_I S. Rep. No. 95-181, 95th Cong., 1st Sess. 41 (1977) reprinted in
Senate Subconnnittee on Labor, Committee on Human Resources, 95th Cong.,
2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977 at 626 (1978).

33

Distribution
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
William H. Howe, Esq.
Timothy J. Parsons, Esq.
Loomis, Owen, Fellman & Howe
2020 K Street, N.W.
Washington, D.C. 20005
Cynthia L. Attwood, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore, Jr.
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

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

20006

January 23, 1981

SECRETARY OF LABOR,
MINE SAFETY A...>\!D HEAL TH

ADMINISTRATION (MSHA)
v.

EL PASO ROCK QU1\'R.RIES,
..
INC.

Docket Nos. DENV 79-139-PM
DENV 79-140-PH
DEN\' 79-176-PM
DECISION

This is a civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (Supp. III 1979).
Mine Safety and Health Administration (NSHA) inspectors issued citations
under section 104(a) of the Act to El Paso Rock Quarries, Inc., for
alleged violations of mandatory safety standards. El Paso contested the
citations and an evidentiary hearing was held. The administrative law
judge held in part for El Paso vacating several of the citations, and in
part for the Secretary finding that certain alleged violations occurred
and assessing pena_lties with respect to those violations. Both El Paso
and the Secretary sought Commission review of portions of the judge's
decision adverse to them. 1/ The Commission granted, in part, each of
the petitions for discretionary review. 2/ For the reasons that appear
below, we affirm in part, and reverse and remand in part. ]./
Citation No. 159658
This citation involved an alleged violation of 30 CFR §56.9-22. 4/
The inspector issued the citation because an elevated roadway that provided access to the top of the quarry wall was not equipped with either
berms or guards along its outer edges. The roadway was elevated three
hundred feet on one side and forty to fifty feet on the other side.
Although the roadway was not used by El Paso to haul rocks, it was used
to haul explosives and to provide access to areas which were to be
drilled and blasted.

1_/ El Paso sought review of the judge's findings of violation only.
It did not seek review of the penalties assessed.
lJ We directed review of seven ci~ations that the judge vacated, and
of three citations that the judge upheld;
3/
The citations are treated separately, except where a common
question of law or fact is presented.
4/
Section 56.9-22 provides:
Berms or guards shall be provided on the outer bank of
elevated roadvays.

81-1-20

35

The judge vacated the citation on the ground that the standard
applies only to roads used for loading, hauling and dumping and that the
activities that the roadway was used for her2 did not fall into any of
those categories. 5/ We disagree. The hauling of explosives is the
kind of haulage contemplated
section 56.9. tTherefore, we reverse the
decision of the judge, rei:istate the citation ~nd remand for further
proceedings consistent with this opinion. !!._/

by

Citation No. 159662
This citation also involved an alleged violation of 30 CFR
§56.9-22. The citation was issued because El Paso had allowed haulage
trucks to be driven on a "bench" before berms were erected. 7/ The
bench where the haulage took place was elevated forty feet above a lower
bench. On the basis of those facts, the judge found a violation of
section 56.9-22. The question on review is whether a "bench" is an
"elevated roadway" within the meaning of the standard. El Paso argues
that it is not and that the judge, therefore, erred in finding a
violation. We disagree. Under the facts of this case, the quarry bench
where the haulage trucks were driven is indeed an elevated roadway
within the meaning of section 56.9-22. The judge's finding of a
violation is, therefore, affirmed.
Citation Nos. 159660 and 159664
These citations involve a common question of law: whether El Paso
may be held liable when its customers or employees of its customers do
not comply with mandatory safety standards.§_/ One citation (No. 159660)
5/
The judge apparently based his conclusion upon the fact that 30 CFR
§56.9 is entitled, "Loading, hauling, dumping."
!i/ Because hauling activities were involved here, we do not pass upon
the question of whether the provisions of 30 CFR §56.9 are applicable
only to loading, hauling and dumping activities.
7/
The term "bench" is in part defined by A Dictionary of Mining,
Mineral, and Related Terms, Department of the Interior (1968), as:
A ledge, which, in open-pit mines and quarries, forms a single
level of operation above which mineral or waste materials are
excavated from a contiguous bank of bench face. The mineral or
waste is removed in successive layers, each of which is a bench,
several of which may be in operation simultaneously in different
parts of, and at different ~levations in an open-pit mine or
quarry.
8/
Ti12 customers and employees of customers were refe;:-ed to during
the proceeding and in the judge's decision as "rock pickers".

" r-.
uo

alleged a violation of 30 CFR §56.15-4. 9/ It was issued because two
rock pickers were not wearing eye protective equipment whil~ breaking
rocks with a hammer. The other citation (No. 159664) alleged a
violation of 30 CFR §56.3-12. 10/ That citation was issued because two
other rock pickers, who, while--:foading onto a truck rocks that were
being rolled down to them from the top of the quarry bank, were working
between the truck and the bank and did not have access to an adequate
escape route.
The judge found that violations of both standards occurred. He
also determined that El Paso was liable for the violations, because the
rock pickers were "miners" as that term is defined in section 3(g) of
the Act. He concluded, therefore, that the rock pickers were entitled
to the same protection as that afforded miners who are employees of the
mine owner.
We affirm. First, we hold that the judge was correct in concluding
that the rock pickers were miners within the meaning of section 3(g) and
were, therefore, entitled to the protections of the Act. We note that
section 3(g) defines a "miner" as "any individual working in a coal or
other mine". Here, the rock pickers broke, loaded and hauled the rock
out of the quarry. In light of these activities the rock pickers were
miners as defined by section 3(g). 11:.I
Second, we hold that the judge was correct in finding that El Paso
was liable for the violations. The substantial involvement by the rock
pickers in the quarrying operation of El Paso is a sufficient basis upon
which to predicate El Paso's liability for the violations committed.
Therefore, we affirm the judge's holding that El Paso is liable for
the failure of its customers or the employees of its customers to comply
with the mandatory safety staudards.

2/ Section 56.15-4 provides:
All persons shall wear safety glasses, goggles, or face
shields or other suitable protective devices when in or around an
area of a mine or plant where a hazard exists which could cause
injury to unprotected eyes.
10/ Section 56.3-12 provides:
Men shall not work between equipment and the pit wall: or bank
where the equipment may hinder escape from falls or slides of the
bank.
11/ Neither in that section nor elsewhere in the Act is one's status as
a"minerlt made contingent upon an employment relationship with the owner
or operator of a mine.

37

Citation ~o. 159661
Here, the inspector cited El Paso for an alleged violation of 30
CFR §56.9-40(a). That standard provides that ~en shall not be transported "[i]n or on dippers, forks, clamshells, [or] beds of trucks
unless special provisions are made f,or their safety, or buckets except
shaft buckets." The inspector issued the citation upon observing a
person riding on the running board of a truck. At the opening of the
hearing, counsel for the Secretary moved to amend the citation so as to
allege a violation of section 56.9-40(c), rather than section
56.9-40(a). Section 56.9-40(c) provides that men shall not be transported "[o]utside the cabs and beds of mobile equipment, except trains."
Counsel for El Paso objected to the amendment and the judge denied the
Secretary's motion.
We affirm. Granting or denying amendments is largely a discretionary matter with the judge to whom the motion is made. Although
we might have ruled differently as an initial matter, 12/ we conclude
that the judge did not abuse his discretion in denying-:the Secretary
leave to amend the citation.
Citation No. 159665
This citation involved an alleged violation of 30 CFR §56.9-87.
That mandatory standard requires that where an operator of heavy duty
mobile equipment has an obstructed view to the rear, such equipment is
to be provided with an automatic reverse signal alarm that is audible
above the surrounding noise level, or in the alternative, that an observer is to be .present in order to signal when it is safe to back up.
The inspector issued the citation upon observing a truck back up with an
inoperative reverse signal alarm. The judge vacated the citation on the
ground that although the reverse alarm was inoperative, the Secretary
failed to establish that El Paso knew or should have known i t was inoperative.
The question on review is whether, under the 1977 Mine Act, an
operator may be held liable for a violation of a mandatory safety
standard regardless of fault. We answer that question in the affirmative. As we have previously held with respect to the Federal Coal Mine
Health and Safety Act of 1969, 30 u.s.c. §801 et seq. (1976) (amended
1977), unless the standard itself so requires,-an operator's
12/ In this regard, we note that Rule lS(a), Fed. R. Civ. P., in part
provides:
(a) Amendments. A party may amend his pleading once as a
matter of course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial
calendar, he may so amend it at any time within 20 days after it is
served. Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires. [Emphasis added.]

38

negligence has no bearing on the issue of whether a violation occurred.
Rather, it is a factor that is to be considered in assessing a penalty.
United States Steel Corp., 1 F}tSHRC 1306, 1 BNA HSHC 2151, 1979 CCR OSHD
,[23,863 (1979). Therefore, we reverse the decision of the judge, reinstate the citation and remand for further proceedings consistent with
this opinion.
Citation Nos. 159669, 159675 and 159695
Each of these citations involved an all~ged violation of 30 CFR
§56.11-2. 13/ The inspector issued the citations upon observing tools,
bars, pulleys, hooks, wire rope and rocks lying near the edge of elevated walkways that were not equipped with toeboards (i.e., raised edges
around the perimeter of the walkway platforms). The inspector believed
that the absence of toeboards constituted a violation of section 56.11-2
because the loose material lying on the walkways could fall over the
sides of the platforms and onto employees working below. The judge
vacated the citation on the ground that the standard is intended to
protect only those employees working on the elevated walkways, and not
those employees working underneath them.
We disagree. In view of the renedial nature of the 1977 Mine Act,
we hold that one of the purposes of the toeboard provision contained in
that standard is to protect persons working below elevated walkways from
falling objects. 14/ Therefore, we reverse the decision of the judge,
reinsta~e the ci~ations and remand for further proceedings consistent
with this opinion.

J;i/ Section 56.11-2 provides:
Crossovers, elevated walkways, elevated ramps, and stairways
shall be of substantial construction provided with handrails, and
maintained in good condition. Where necessary, toeboards shall be
provided. [Emphasis added.]
14/ The Occupational Safety and Health Review Commission has also
recognized such a purpose of toeboards in similar standards under the
Occupational Safety and Health Act. See Western Waterproofing
Co., Inc., 7 BNA OSHC 1625, 1979 CCH OSHD ,[23,785 (1979); Truax &
Hovey Drywall Corp., 6 BNA OSHC 1654, 1978 CCH OSHD ~[22,799 (1978).
Also, with respect to toeboards, the Accident Prevention Manual
For Industrial Operations, National Safety Council, 7th ed. (1978)
states:
Open-sided floors or platforms more than 4 ft above floor or ground
level, and scaffolds more than 10 ft above floor or ground level,
should be guarded by a 36- to 42 in.-high railing (with midrail).
If persons can pass beneath or if there is moving machinery
or other equipment with which falling materials could create
a hazard, the guardrail should also have a 4-in.-high toeboard.
Screening can also be added. [Fig. 16-7, at p. 389; emphasis
added.]

Citation No. 159691
This citation involved an alleged violation of 30 CFR §56.12-68. 15/
The inspector issued the citation upon observing that the gate to a
fence surrounding an electrical power transformer was not locked. In
vacating the citation, the judge stated that it had apparently been
issued within minutes after the issuance of another citation alleging
the existence of a hole in the same transformer fence. The judge concluded that because of the hole in the transformer fence, El Paso was no
longer under an obligation to keep the transformer gate locked at the
time that the unlocked gate citation was issued.
We reverse •. The 1977 Mine Act imposes a duty upon operators to
comply with all mandatory safety and health standards. It does not
permit an. operator to shield itself from liability for a violation of a
mandatory standard simply because the operator violated a different, but
related, mandatory standard. Therefore, we reverse the decision of the
judge, reinstate the citation and remand for further proceedings consistent with this opinion.
Accordingly, the judge's decision is affirmed with respect to
Citation Nos. 159662, 159660, 159664 and 159661. With respect to
Citation Nos. 159658, 159665, 159669, 159675, 159695 and 159691, the
judge's decision is revers~d and.the citat·,<,ms are
remanded for further proceedings cons/ t
'wi .

t

\\fl
r''
·'.)~,.'...·
I

'\'

Commissioner
Backley, Chairman, dissenting in part I dissent from that part of the majority opinion that would reverse
the judge's decision vacating Gita tion No. 159691. This citation
involved an alleged violation of 30 CFR Sec. 56.12-68, which requires
that.transformer enclosures be kept locked against unauthorized entry.
The record discloses that this citation was issued to the operator two
minutes after the latter had received a citation for having a hole two
feet wide in the transformer fence.

15/ Section 56.12-68 provides:
Trans~ormer enclosures shall be kept locked against unauthorized entry.

40

The citations of the inspector were laudable - to a point. In
issuing Citation No. 159691, the inspector gave the operator 30 hours to
install a lock on the gate. The operator abated in 4~ hours.~The
operator was given 4 davs to repair the fence. He abated this violation
in 9~ hours.
The purpose of keeping a transformer fence locked is clear. What
is not clear is whether the manner of enforcement present in this case
accomplishes the purpose - keeping unauthorized persons out of the
enclosure - where there is no enclosure. Had the operator abated both
citations at the maximum time allowed by the inspector, he would have
bad a locked transformer fence with a hole in it. Somewhere, I miss the
point.

~··

41

Distribution
Ralph W. Scoggins, Esq.
El Paso Rock Quarries, Inc.
Suite 342
5959 Gateway West
El Paso, Texas 79925
Cynthia L. Attwood,Esq.
Office of the Solicitor
U.S.Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore, Jr.

FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

42

Administrative Law Judge Decisions

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

JAN 2

HARMAN.MINING CORPORATION,

1981

Contest of Order and Citations

Contestant

v.

Docket No. VA 80-94-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

Order No. 698509
February 9, 1980

ADMINISTRATION (MSHA),
Respondent

Docket No. VA 80-95-R

UNITED MINE WORKERS OF AMERICA,
(UMWA),
Respondent

Citation No. 0698510
February 11, 1980
Docket No. VA 80-96-R
Citation No. 0698511
February 11, 1980
Docket No. VA 80-97-R
Citation No. 0698513
February 14, 1980
Central Preparation Plant

DECISIONS
Appearances:

Robert M. Richardson, Esq., J. Peter Richardson, Esq.,
Bluefield, West Virginia, for Contestant;
John H. O'Donnell, Attorney, Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Respondent MSHA.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated contests concern a section 103(k) order and three
section 104(a) citations issued by MSHA to the contestant in February, 1980.
The order was issued by MSHA inspector Roger L. Clevinger on February 9, for
the purpose of facilitating an investigation into a fatal railroad haulage
accident which occurred at contestant's cent al preparation plant on the
evening of February 8. The accident :'esulted in the death of an employee
(brakeman) of the Norfolk & Western Railroad (,)mpany who was struck by a
1

45

trip of two runaway loaded railroad cars being dropped by an employee (car
dropper) of the contestant. The facts and circumstances surrounding the
accident are detailed in the accident investigation report prepared by MSHA
inspectors Clevinger and Merian O'Bryan (Exh. R-1). The citations were
issued as a result of the information obtained by the inspectors during the
course of their investigation, but only two of them were related to the
accident.
The section 103(k) Order No. 0698509, February 9, 1980, issued by
Inspector Clevinger reads as follows: "A fatal accident has occurred on the
railroad side track serving this preparation plant. This order is issued
pending an investigation to determine the cause and means of preventing a
similar occurrence."
Citation No. 0698510, February 11, 1980, issued by Inspector Clevinger,
cites a violation of 30 C.F.R. 77.1607(v), and states as follows: "The
railroad car dropper did not have the two loaded railroad cars being dropped
on the side track under control in a manner to where the cars could be
stopped safely when needed. This was issued during a fatal accident
investigation."
Citation No. 0698511 (as amended), February 11, 1980, issued by Inspector Clevinger, cites a violation of 30 C.F.R. 77.1713, and states as follows:
"The onshift examination for hazardous conditions at the Central Preparation
Plant was not being conducted by a certified person."
Citation No. 0698513, February 14, 1980, issued by Inspector Clevinger,
cites a violation of 30 C.F.R. 48.31, and states as follows: "Hazard training was not provided for the Norfolk and Western employees serving this
preparation facility."
A hearing was conducted in Pikeville, Kentucky on September 11, 1980,
and the parties appeared and participated therein. Post-hearing proposed
findings and conclusions were submitted by the parties and the arguments presented have been fully considered by me in the course of these decisions.
Although notified of the hearing, respondent UMWA failed to appear and I
dismissed them as a party (Tr. 80).
Issues Presented
1. Whether the accident occurred on contestant's coal mine property
and whether the asserted mining activities engaged in by the contestant at
the time of the accident constituted "mining 11 within the meaning of the Act.
2. Whether the order and citations were properly and validly issued by
the inspector pursuant to the Act, and whether the conditions and practices
described in the citations constituted violations of the cited mandatory
safety standards.

46

3. Whether the order and citations should have been served on the
Norfolk and Western Railroad Company (N & W) as the "operator" of the
"mine," rather than on the contestant.
4. Additional issues raised by the parties are identified and disposed
of in the course of these decisions.
Findings and Conclusions
The Jurisdictional Question
Resolution of the legal question concerning MSHA's jurisdiction in this
case centers on the following questions: (1) Is the tipple and preparation
plant part of a coal mine within the meaning of the Act? (2) Is the area of
land where the
&
tracks are located and where loaded coal cars
are parked awaiting transportation by the railroad part of a coal mine?
The definition of "coal or other mine" found in section 3(h)(l) of the
Act is as follows:
"[C]oal or other mine" means (A) an area of land
from whi~h minerals are extracted in nonliquid fonu or, if
in liquid form, are extracted with workers underground, (B)
private ways and roads appurtenant to such area, and (C)
lands, excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
machines, tools, or other property including impoundments,
retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits
in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other minerals,
and includes custom coal preparation facilities.
In its post-hearing brief contestant argues that the fatal accident and
all car-dropping activities relating to and leading up to the accident
happened on the N & W railroad tracks, at a site physically separate from the
preparation plant and that any coal preparation had been completed and transportation begun. In these circumstances, contestant advances the argument
that since the accident did not occur in '~ coal or other min~' as defined by
the Act, MSHA has no jurisdiction to issue orde~s or citations for conditions
or practices over which contestant has no control.
Conceding that the definitions of "coal or other mine" follows the mining process from extraction through preparation, contestant nonetheless
advances the argument that while specific facilities are referred to by the
definitions section found in the Act, transporting prepared coal in railroad
cars is not included among the itemized activities listed therein. Further,
contestant asserts that it conveyed all of its tangible property interests in

47

the railroad tracks, roadbeds, and appurtenances thereto to the railroad.
Contestant would draw the line at the production or preparation ~nd of its
mining process precisely where the coal has been prepared and completely
loaded into the railroad car delivery vehicle while it is on the track, but
would not extend MSHA's jurisdiction to loaded railroad cars assertedly off
of the coal company's property. In support of this argument, contestant
points out that MSHA has not undertaken to regulate the defective railroad
car brakes such as the ones which caused the accident in this case, and that
the railroad has refused to submit itself to MSHA's jurisdiction because it
believes that the accident occurred on a railroad rather in a coal mine,
thereby subjecting the railroad to the jurisdiction of the Interstate
Commerce Commission rather than MSHA.
Contestant's jurisdictional position was succinctly stated by its counsel
during the course of the hearing as follows (Tr. 219):
When that car is dropped onto tracks belonging to the
Norfolk and Western Railroad in a Norfolk and Western railroad
car completely loaded and ready for transportation to its
destination with nothing more to be done to it in the manner
of preparation or extracting, then I say that is the fine
line. Because I say under the definition of a coal mine there
is nothing, no language that would include the tracks of the
Norfolk and Western Railroad as a part of the coal mine. But
I think it is definitely a far cry different thing from a
preparation facility belonging to Harman and I think when that
car's under that preparation plant being loaded that it is
subject to inspection. When it is dropped in position, which
is the case in this case, below that tipple loaded in a
Norfolk Western Car on a Norfolk and Western track with defective brakes on it that it is not on a coal mine.
Respondent MSHA's arguments in support of its jurisdiction in this
matter includes a detailed analysis of the deed and agreement between contestant and the railroad concerning the use of the land and railroad equipment in question (Exhs. R-15 and R-16). In summary, MSHA argues that when
read together, the agreement and deed do not reflect any intention on the
part of contestant to convey the land below the tipple and preparation plant
in fee to the railroad. To the contrary, MSHA argues that the effect of. the
deed and agreement is to grant to the railroad an easement or license across
contestant's land for the purpose of providing a mutually beneficial and
convenient method of transporting coal off mine property.
The record reflects that the railroad cars are loaded at the tipple
preparation plant and trips of three to five loaded cars are then dropped by
gravity and placed on certain tracks some four to five hundred feet from the
plant until such time as they can be added to other trips and taken away by
the railroad. During the dropping process the cars are dropped by gravity,
they are manned by car droppers employed by the contestant, the car droppers
control the positioning of the loaded cars on the tracks, and their duties

48

include operating the track switches to facilitate the placing of the loaded
cars at the desired track locations (Tr. 29-31). The tracks consist of three
storage tracks and the main railroad track (Tr. 32, Exh. R-2). The car
dropper actually stands on a platform at one end of the loaded moving car,
and his job is to control the speed of the car by means of a wheel-type
mechanical braking device (Tr. 36).
The record also reflects that brakemen employed by the railroad also
operate the track switching devices and often instruct the car droppers where
to position the loaded coal cars. These railroad brakemen routinely spend
time on mine property, and Inspector O'Bryan stated that "That's the only way
the cars can get on and off is by N & W people or the railroad people. I
know of no other company that has their own railroad" (Tr. 38, 40).
Mr. O'Bryan believed that the storage tracks were on mine property but he had
no knowledge as to who actually owned the land where the tracks are located,
but it was his understanding that the area from the preparation plant to the
"D-railn is on mine property and that the three storage tracks were leased to
the contestant mining company (Tr. 43-45).
Contestant's employees do have occasion to drop cars as far as the
D-rail, but they are normally pulled to that area by a locomotive for storage
purposes (Tr. 49). Contestant's car dropper James Bennett testified that
employees of the railroad company are on the property from the tipple to the
D-rail on a daily basis and that the tipple operates normally on two shifts,
sometimes three, and there are times when the railroad employees extend their
work hours (Tr. 146). He also testified that both he and railroad employees
operate all of the track switches when required, and that he has dropped cars
as far as the D-rail (Tr. 149). He also testified that he has been employed
at the tipple for 27 years and that the coal processed at the tipple comes
from three or four different mines and that it is transported to the tipple
by trucks and railroad cars (Tr. 155-156). Car dropper Bill McCoy testified
that railroad brakemen do not drop any of the loaded coal cars because "the
union wouldn't let them" (Tr. 184).
Contestant's Vice-President for Operations, Paul Hurley, testified that
"we couldn't operate as a coal mining company without the services of N & W"
(Tr. 208). With regard to the source of the coal which is processed through
the tipple and preparation plant, he testified as follows (Tr. 202):
It comes from a multiplicity of mines around. Primarily
the Harman Preparation Plant is a plant that was built many
years ago to service the number one and number three mines
which it still does and is still a part of that operation in
that the mine cars from number three mine come in and dump
right in directly in~o the back of the plant everyday and
every night. In addition to that we have a facility on the
hill back of this plant through a system of conveyors where
we accept and receive coal from three of our truck mines three of our outlying area mines that the coal from them is
trucked in. And sixteen or seventeen small contract mines
that is brought in by the truck route too.

49

Mr. Hurley described the operations of the tipple and preparation plant,
and stated that the plant was constructed in 1937 to service the number one
and number three mine. His office is located some 1,500 feet above the plant
location, and he confirmed that the preparation and tipple operations have
been regulated and inspected by MSHA for many years (Tr. 213-218). Although
he did
indicate at one point during his testimony that he did not consider
the tipple to be a "mine" because coal was not extracted there, contestant's
counsel conceded that it was (Tr. 219).
On July 6, 1978, I rendered a decision in the case of MSHA v.
Consolidation Coal Company, Docket No. VINC 77-122-P, and ruled that a certain
track area over which the Norfolk and Western Railroad Company had an easement to operate was part and parcel of Consolidation's coal mining operations
and that the track area where an MSHA inspector issued a citation for failure
by Consolidation to maintain the tracks as required by mandatory safety
standard 30 C.F.R. 77.1605(m), was in fact a part of a coal mine within the
meaning of the 1969 Act. A copy of my decision, as well as my jurisdictional
ruling of January 5, 1978, in response to a motion for summary judgement, is
attached to MSHA's post-hearing brief and are matters of record. The facts
and circumstances in Consolidation, particularly with respect to the jurisdictional arguments advanced by the parties, are essentially similar, if not
identical, to those presented in the instant case.
After careful review and consideration of all of the arguments presented
in this case, I conclude and find that MSHA has the better part of the
jurisdictional argument and I accept and adopt its contentions in this regard
and reject those advanced by the contestant. I believe it is clear that contestant's tipple and preparation plant are in fact subject to MSHA's enforcement jurisdiction and that the activities at those locations are in fact coal
mining activities within the meaning of the Act, and I believe that contestant
has conceded as much and does not seriously dispute this fact. As pointed out
in my prior decision in the Consolidation case, the definition of "coal or
other mine" as found in section
the Act includes mining activities
which take place at a tipple or preparation facility.
The Dictionary of Mining, Mineral and Related Terms, Bureau of Mines,
1968 Ed., pg. 859, defines the term "preparation plant" as including any
facility where coal is "separated from its impurities, washed and sized, and
loaded for shipment. 11 The term "tipple" is defined at pg. 1145 as:
Originally the place where the mine cars were tipped and
emptied of their coal, and still used in that sense, although
now more generally applied to the surface structures of a
mine, including the preparation plant and loading tracks
* * *· The dump; a cradle dump * * *· The tracks, trestles,
screens, etc., at the entrance to a colliery where coal is
screened and loaded. [Emphasis supplied.]
Based on the testimony and evidence presented in this case, I believe
there is no question that the tipple preparation plant is in fact a 11 coal or

50

other mine" for purposes of the Act. In addition, I also conclude that the
track area below the tipple, up to and including the D-rail location, is also
part of contestant's "coal or other mine 11 for purposes of the Act, and its
very narrow arguments to the contrary are rejected. I conclude and find that
contestant is the legal owner of the land where the track system is located,
and the fact that the railroad has been allowed to use the land for its
tracks and other equipment, including its locomotives and coal haulage cars,
does not detract from this fact. As I construe the deed and agreement
referred to by the parties, any conveyance from the contestant to the railroad was in effect a license or easement to use the land, and the fee ownership in the land itself has still be retained by the contestant. Further,
as candidly admitted by Vice-president Hurley, for all practical purposes
contestant cannot continue to exist and operate as a viable mine operator
without the benefit of the railroad to carry away the coal processed and
loaded at its central tipple and preparation plant.
Although coal extraction does not take place at the preparation plant,
the work of loading the processed coal into railroad cars and dropping them
below to the track storage area falls within the broad statutory language
found in section 3(h), particularly the language "the work of preparing coal
or other minerals, and includes custom preparation facilities." More importantly, the definition of 11 coal or other mine" is broad enough in my view to
include the track area in question. The railroad track is an integral and
indispensable part of contestant's mining operations at the tipple and preparation plant and I reject any attempt to divorce them from the normal mining
operations obviously be,ing carried out by the contestant on the basis of a
somewhat artificial and semantical interpretation of a somewhat antiquated
deed and agreement entered into by the contestant and the railroad for their
mutual benefit.
This conclusion is in accord with Marshall v. Stoudt's Ferry Preparation
Company, 602 F.2d 589 (3rd Cir. 1979), ~· denied, No. 79-614 (January 7,
1980), which dealt with a closely analogous situation. There, the State of
Pennsylvania dredged a river and deposited the material into a nearby basin.
The operator purchased this material and through the use of a front-end
loader and conveyor belts transported the material to its plant where, through
a sink-and-float process, a low-grade fuel was separated from the sand and
gravel. The court held that the operator was engaged in the preparation of
minerals within the jurisdiction of the Mine Act, and that "the work of preparing coal or other minerals is included within the Act whether or not
extraction is also being performed by the operator." 602 F.2d at 592.
The legislative history of the Act clearly contemplates that jurisdictional doubts be resolved in favor of Mine Act jurisdiction. The report of
the Senate Committee on Human Resources states:
The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's intention
that what is considered to be a mine and to be regulated under
this Act be given the broadest possible interpretation, and it

51

is the intent of this Committee that doubts be resolved in
favor of inclusion of a facility within the coverage of the
Act.

s. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14; Legislative
History of the Mine Safety and Health Act, Committee Print at 602.
Docket No. VA 80-94-R
Order No. 698509
Inspector Clevinger testified that as a result of the fatal accident,
he issued the section 103(k) order on February 9, 1980,. to facilitate an
investigation to determine the cause of the accident. The order was terminated on February 11, 1980, after the investigation was concluded. The
investigation team consisted of Federal, Union, and company officials and
the cars involved in the accident were not moved by the railroad company
until after the investigation was completed (Tr. 80-83).
Section 103(k) states in pertinent part:
In the event of any accident occurring in a coal or
other mine, an authorized representative of the Secretary,
when present, may issue such orders as he deems appropriate
to insure the safety of any person in the coal or other mine,
and the operator of such mine shall obtain the approval of
such representative, in consultation with appropriate State
representatives, when feasible, of any plan to recover any
person in such mine or to recover the coal or other mine or
return affected areas of such mine to normal.
Contestant's defense to the order is based on its jurisdictional argument that the track area where the accident occurred is not part of the mine
and that the inspector therefore had no jurisdiction or authority to issue
the order. Since I have rejected contestant's jurisdictional argument and
have concluded that the accident site was part of the mine, contestant's
argument in defense of the order on this ground is likewise rejected.
It seems clear to me that the inspector issued the order so as to maintain the status quo while an investigation was conducted. The order was
limited to the railroad cars located in the track storage area and there is
no evidence that contestant's coal tipple or preparation activities were in
anyway otherwise curtailed or that contestant's production was in anyway
affected by the order. The purpose of the order was to prevent the cars
involved in the accident from being moved or disturbed until certain tests
were conducted as part of the investigation. As a matter of fact, the railroad did not move the cars, the contestant participated in the investigation,
and as soon as the investigation was completed the order was terminated. In
these circumstances, I conclude and find that the inspector acted within his

52

authority in issuing the order and that the use of such an order in the circumstances presented in this case was reasonable, proper, and in accord with
section 103(k). See: MSHA v. Eastern Associated Coal Company, HOPE 75-699,
Commission Decision of September 2, 1980. Further, in view of my findings
and conclusions concerning the jurisdictional question, I also conclude and
find that the section 103(k) control order was properly served on the contestant as the mine operator. Considering all of these circumstances, the
order is .AFFIIU1.ED.
Docket No. VA 80-96-R
Citation No. 698511
The citation in this case was issued because the inspector discovered
that the person conducting the onshift hazardous conditions examination was
not a certified person within the meaning of cited standard 77.1713(a).
Inspector Clevinger confirmed that he issued the citation after reviewing
the onshift examination books and observing that the signature of the person
signing the report as the examiner did not include a certification number
confirming the fact that he was in fact a certified examiner. He identified
that person as David Ratliff and he confirmed that while Mr. Ratliff may have
conducted the examination, he had no state or federal certification as a
qualified onshift examiner (Tr. 95-97).
Inspector Clevinger testified further that the citation was terminated
the day after it issued after a certified person conducted the required
examination, and he confirmed that the citation was unrelated to the fatal
railroad accident which occurred on February 8, 1980 (Tr. 96-98). He also
testified that the preparation plant had its own MSHA "ID" or mine identification number and he considers it to be a surface mine (Tr. 122).
Mr. Ratliff conceded that when he signed the onshift examination report
he was not a certified examiner. He explained that in order to be certified
one must have 5 years of mining experience and that he will have 5 years'
experience on January 1, 1981. He also indicated that Mr. Clevinger considered him to be a competent person to make the required examination but that
the report should have been countersigned by a certified person (Tr. 240-243).
30 C.F.R. 77.1713(a) provides as follows:
At least once during each working shift, or more often
if necessary for safety, each active working area and each_
active surface installation shall be examined by a certified
person designated by the operator to conduct such examinations for hazardous conditions and any hazardous conditions
noted during such examination shall be reported to the operator and shall be corrected by the operator. [Emphasis added.]

53

The term "certified person" is defined in section 77.2(m) as:
[A] person certified or registered by the State in which
the coal mine is located to perform duties prescribed by this
Part 77, except that, in a State where no program of certification or registration is provided or where the program does
not meet at least minimum Federal standards established by
the Secretary, such certification or registration shall be by
the Secretary.
The regulatory details concerning "qualified and certified persons" are
set forth in section 77.100 and need not be repeated here •. Contestant does
not dispute the fact that Mr. Ratliff was not "certified" as required by the
regulations. Its defense is based on the assertion that the certification
requirements of section 77.1713 apply only to surface coal mines, and that
since the term "surface mine" is not defined, and the inspecto:i: .. iestified that
no coal is produced by the preparation plant, contestant arguzs that the plant
is not a surface mine. In fl~rther support of its argtnnent, contestant produced a copy of an MSHA Memorandum of April 10, 1979, from Adm:i..nistrator
Joseph o. Cook to MSHA District Managers concerning the application of section 77.1713, and the pertinent portion of that memorandum reads as follows:
"Section 77.1713, applies only to surface coal mines and does not apply to
surface work areas-of underground coal mines. Therefore, examinations as
specified in Section 77.1713 are not required at surface work areas of underground coal mines."
MSHA argues that while contestant asserts that the preparation plant is
the outside area of an underground mine, contestant does not specify which
of its underground mines it wishes to associate with the plant. MSHA goes on
to argue that the coal processed at contestant's central preparation plant is
mined at different mine locations owned by the contestant as well as several
mines operated under contract, and that the plant is the only one used by the
contestant to process this coal. Each of contestant's mines, as well as the
preparation plant, have separate mine identification numbers, and MSHA argues
that the plant is in fact a surface facility independent of any mine.
With regard to the April 10, .1979, memorandum alluded to by the contestant, MSHA asserts that it was intended to apply to a preparation plant operated as part of one underground mine. MSHA attached a copy of a December 13,
1979, memorandum from its Associate Solicitor for Mine Safety and Health
(Appendix No. 1, posthearing brief), which concludes in pertinent part as
follows:
Preparation plants not associated with surface or underground mines fall within ;t.he definition of "coal or other
mine" because they conduct the work of preparing coal. Since
all the activity at such preparation plants occurs on the
surface, these plants are surface coal mines within the meaning of Part 77 which applies to surface coal mines and surface

54

work areas of underground coal mines. For the same reason,
they are also active surface installations within the meaning
of 77.1713.
The memorandums alluded to by the parties in these proceedings are not
binding on me, nor are the interpretations of the application of section
77.1713. Accordingly, my findings and concluslons which follow are made on
the basis of my independent consideration of the Act as well as the regulatory language of the pertinent standards found in Part 77.
Part 77, Title 30, Code of Federal Regulations, contains the mandatory
safety and health standards applicable to surface coal mines and surface work
areas of underground coal mines. While it is true that the term "surface
coal mine" is not further defined, section 77.200 dealing with surface
installations provides that: "All mine str.11ctures, enclosures, or other
facilities (including custom coal preparation) shall be maintained in good
repair to prevent accidents and injuries to employees." The purpose of
onshift examinations is to detect conditions which may contribute to hazards.
The central preparation plant falls within the statutory definition of a
"coal or other mine," and the fact that coal is not actually mined at that
facility by use of drag lines or other machinery normally associai:ed wlth the
actual extraction of coal is not controlling. The definition of "coal or
other mine" found in the Act is broad enough to include the work of processing the coal produced at contestant's mines through the central preparation
facility.
I take note of the fact that the regulatory language found in section
77.1713 makes reference to "active surface installation" and it can hardly be
argued that the central preparation plant is not an active surface installation. The activities taking place at this plant are as much an integral part
of the mining process as is the initial extraction of the coal itself, and
since these activities take part on the surface I conclude and find that for
purposes of the application of section 77.1713; the central preparation plant
may be considered a surface coal mine ·and contestant's rirgu111ents to the contrary are rejected. The citation is AFFIRMED.
Docket No. VA 80-97-R
Citation No. 698513
s citation was issued to the contestant because of its asserted failure to provide hazard training for the employees of the railroad who worked
in and around the railroad yard near contestant's preparation plant. Specifically, MSHA asserts that the failure by the contestant to provide such
training to the railroad employees who were engaged in duties connected with
the transportation of the loaded railroad cars from contestant's property
constituted a violation of the train-lng requirements found in section 48.31.
That section of the regulations provides as follows:
(a) Operators shall provide to those miners, as defined
in § 48.22(a)(2) (Definition of miner) of this subpart B, a

55

training program before such miners commence their work
duties. This training program shall include the following
instruction which is applicable to the duties of such miners;
(1)

Hazard recognition and avoidance;

(2)

Emergency and evacuation procedures;

(3) Health and safety standards, safety rules and safe
working procedures;
(4)

Self-rescue and respiratory devices; and,

(5) Such other instruction as may be required by the
Chief of the Training Center based on circumstances and
conditions at the mine.
(b) Miners shall receive the instruction required by
this section at least once every 12 months.
(c) The training program required by this section shall
be submitted with the training plan required by § 48.23(a)
(Training plans; Submission and approval) of this subpart B
and shall include a statement on the methods of instruction
to be used.
(d) In accordance with § 48.29 (Records of training) of
this subpart B, the operator shall maintain and make available
for inspection, certificates that miners have received the
instruction required by this section.
The regulatory education and training requirements mandated by the Act
are found in Part 48, Title 30, Code of Federal Regulations. Subpart B contains the requirements for the training and retraining of miners working at
surface mines and surface areas of underground mines. For purposes of the
hazard training requirements imposed by section 48.31, the term "miner" is
defined in pertinent part by section 48.22(a)(2) as follows:
[A]ny person working in a surface mine or surface areas of
an underground mine excluding persons covered under paragraph (a)(l) of this section and subpart C of this part and
supervisory personnel subject to MSHA approved state certification requirements. This definition includes any
delivery, office, or scientific worker, or occasional,
short-term maintenance or service worker contracted by the
operator, and any student engaged in academic projects
involving his or her extended presence at the mine.
Inspector Clevinger stated that he issued the citation upon instructions
from his supervisor and that he did so after confirming during the course of

56

his accident investigation that the contestant had not given any hazardous
training to any of the railroad employees. An operator is required to maintain records of such training on MSHA Form 5000-23, and when plant supervisor
Ronnie Cox could not produce the form attesting to such training, he issued
the citation (Tr. 87-88). The abatement was extended several times because
of the fact that contestant has sought review of the citation, and the violation has never been abated (Tr. 92).
On cross-examination, Inspector Clevinger identified a copy of a
February 21, 1980, letter from the railroad trainmaster to contestant's
vice-president for operations refusing to permit railroad employees to be
trained by the contestant (Exh. R-8), and he confirmed that contestant would
have compliance difficulties without the cooperation of the railroad.
Mr. Clevinger suggested that the only alternative available to the contestant
would be to exclude railroad employees from its property (Tr. 100-101; 110).
Mr. Clevinger also stated that the hazardous training requirements under section 48.31 apply to anyone on contestant's mine property and that the
requirements apply to any person whether he is a miner or not (Tr. 111). He
confirmed that he has inspected other mine sites but has never previously
cited other mine operators for not training railroad employees, nor could he
recall that other MSHA inspectors cited operators for such violations
(Tr. 113-114).
Contestant's Vice-President Hurley testified that when he initially contacted the railroad trainmaster concerning the training of railroad employees,
the trainmaster advised him that the railroad would object and he confirmed
this in writing by letter (Exh. R-8, Tr. 204). Mr. Hurley testified further
that he did not inquire any further and accepted the trainmaster's refusal to
permit railroad employees to be trained as the railroad's policy in this
regard, and he made no further inquiries and confirmed the fact that the railroad services provided to the contestant were an essential part of its mining
operations (Tr. 205-212).
Contestant's defense to the citation is based on the fact that the railroad has refused to submit its employees to the required training, as well as
the argument that as an independent contractor "mine operator," the railroad
should be held accountable for its refusal to allow its employees to be
trained, and that as an independent contractor, the railroad rather than contestant should be cited for the violation.
In support of the citation, MSHA points to the fact that since the
employees of the railroad are routinely assigned to contestant's property to
perform duties connected with the loading of the railroad cars at the tipple,
it is incumbent on the contestant to insure that they receive the required
training. MSHA views the letter from the railroad trainmaster as a halfhearted attempt by the contestant to escape liability in this case and
suggests that more effort by the contestant could have achieved compliance.
In the final analysis, MSHA would have the contestant refuse entry to all
railroad employees who do not subject themselves to contestant's training
efforts.

57

The citation issued in this case charges the contestant with the failure
to provide hazard training for the employees of the Norfolk and Western
Railroad. MSHA's evidence and testimony in support of the alleged violation
is the testimony of Inspector Clevinger that mine management was unable to
produce an HSHA form attesting to the fact that the employee who was killed
had received any training. Contestant's defense is that it provided an
opportunity for training, but that the railroad refused to allow its employees
to be trained. MSHA has not proven that.contestant does not have a training
program for its own employees, nor has it not rebutted the fact that the contestant was ready, willing, and able to train railroad employees working on
its mine property. Since MSHA has the initial burden of making out a prima
facie case to support its contention that training was not provided in accordance with the requirements of section 48.31, it is incumbent on MSHA to prove
its case by a preponderance of the evidence. Since section 48.31 requires
that such training be provided, I cannot conclude that contestant did not in
fact provide such training. The railroad simply failed to take advantage of
it by refusing to submit its employees to such training. As an analogy, a
public school system provides for the education of its citizens, but if the
citizens do not accept the opportunity to educate themselves one can hardly
hold the school system accountable. Of course, one recourse by the school
authorities is to seek enforcement of any compulsory school attendance law if
one is in fact in effect. In such a case, the local authorities would
undoubtedly hold a parent accountable for failure to insure that his child
take advantage of the education which has been provided. By the same token,
MSHA should look to the "parent railroad 11 rather than the nsurrogate parent''
mine company to insure that its own people take advantage of the training
which has been provided.
MSHA does not dispute the fact that the contestant has given the railroad an opportunity to train its employees. MSHA's position seems to be that
although training has been provided, the contestant must go one step further
and insure that the railroad employees avail themselves of the training, or
suffer the consequences of citations and closure orders for failing to insure
that railroad employees submit to such training. In the circumstances, I
conclude and find that MSHA has not established a violation of the cited
standard and the citation is VACATED. Further, on the facts and circumstances
presented in this case, I feel compelled to comment further with regard to
the training requirements and the theory of MSHA's attempts to enforce those
standards, and my remarks follow below.
Since MSHA has the initial enforcement jurisdiction in matters relating
to mine safety and health compliance, I suggest that MSHA take the initiative
to insure compliance by railroad companies operating on mine property, rather
than to shift the burden to mine operators or to the Commission Judges.
Failure by MSHA to act directly against a contractor-operator is precisely
why I recently dismissed nine civil penalty dockets remanded to me from the
Commission, MSHA v. Pittsburgh & Midway Coal Mining Company, Dockets
BARB 79-307-P, etc., September 5, 1980. On the facts presented in this case,
MSHA concedes that the independent contractor railroad is in fact subject to

58

the Act and can be regulated by MSHA, and in support of this conclusion I
cite the following colloquy between MSHA counsel and me during the course of
the hearing (Tr. 76-79):
JUDGE KOUTRAS: But, what I'm saying, there's nothing to
preclude the Secretary if he wanted to, to subpoena some
Norfolk and Western people and during the course throughout
the investigation.

MR. O'DONNELL: We could have them there if we wanted
them. One thing I've been listening with amusement here.
Both Mr. Richardson and to a certain extent our own people
seem to indicate that these railroad people are what Government? they're just - we have the same rights with them
that you've got against the driver of a - and an accident on
the property we could go in and slap them good. We're not
afraid of the railroads. We'll tell the railroad what to do
and they'll do i.t. If they don't do it, they won't haul
coal. And if they don't haul coal, they're going to be hurting in this area. That's the major part of their busin.~ss.
JUDGE KOUTRAS: Are the railroad companies that haul
coal regulated at all by any regulations and safety standards
by MSHA?

MR. O'DONNELL: Every railroad, every airline, every,
everybody that is on mine property is subject to the Federal
Mine Safety and Health Act of 1977. And they have to comply.
Whether it's anything or whether it's a United States Postal
person coming on there. If he comes onto the mine property
as part of his duty, he's subject to it. Everybody is. It
comes in the jurisdiction of a mine they are responsible.
And we can control them. And we will control them.
JUDGE KOUTRAS: In other words, if they were to find
defective brakes on these locomotives, the theory against
Harman Mining would be what?

MR.

'DONNELL:

JUDGE KOUTRAS:

Independent contractor.
Who?

MR. O'DONNELL: The railroad is an independent contractor
performing services for Harman Mining Company - they are a
necessary part of their mining operation.
JUDGE KOUTRAS: That's the way you would proceed now,
you would look at the railroad company as an independent
contractor?

59

MR. O'DONNELL: Exactly. Same way we would a coal haul
truck. What is the difference between a coal haul truck and
the railraod cars? They both haul coal out of the way and
take it to the supplier. If there's any difference at all you might say, well, the railroad is subject to Interstate
Commerce Acts of Congress, but if those Acts don't conflict
with the Federal Mine Safety and Health Act of 1977, then
this steps into that void and that's it then. This is a
later Act for that matter.
JUDGE KOUTRAS: But the theory of the Government's case
in this particular proceeding is that the loaded coal trips
were being operated by Harman employees and that they were
operated at the mine site, which in the Government's eyes is
from the tipple down to the D-rail. And it's the responsibility of Harman Mining Company rather than the railroad in
this case.
MR. O'DONNELL:

That's right.

JUDGE KOUTRAS: Theoretically, if this case were to start
today, assuming that you found no defective brakes et cetera,
et cetera, that you would proceed in the same manner or in a
combination. You could possibly have the railroad in here as
co-respondent, couldn't you?
MR. O'DONNELL: I believe we would cite them both. I'm
reminded of the Austin Powder Company case where we cited the
mine operator for some of the problems and the Austin Powder
Company for other violations.
MSHA's suggestion that a mine operator may exclude or evict railroad
employees from its mine property is of course one course of action available
to an operator who is faced with a recalcitrant railroad company, and
although this is precisely what I suggested in my prior decision in the
Consolidation Coal case, I do not believe that this is the most effective way
of dealing with a training problem that will undoubtedly have a broad and far
reaching effect upon the entire railroad and mining industry. Further, it
seems to me that after many years of litigation concerning independent contractors, the case-by-case method of adjudicating disputes which have broad
application on a day to day basis is not the best way of gaining compliance.
The Consolidation Coal Company decision and the instant proceeding are classic
examples of MSHA attempting to place the Judge in the position of policing
the railroad and coal industry, and MSHA 1 s counsel reminding me that after my
decision in the Consolidation Coal case nearly 2 years ago the railroad somehow found time to repair defective tracks for which the mine operator was
cited confirms my point. Conversely, I remind counsel of my observations at
pg. 20 of that decision where I stated as follows:
The choice of a proper party-respondent lies within the
authority and discretion of the enforcing agency. However,

60

aside from the fact that petitioner acted on the basis of the
then prevailing policy and controlling decisions when it cited
the respondent for the violation in this case, it seems to me
that in future cases of this kind, petitioner should seriously
consider joining the independent contractor as a party respondent, particularly in a case of a culpable independent contractor, rather than taking the expedient route of simply
naming the mine operator.
During the course of the hearing MSHA's counsel alluded to the fact that
the manner in which MSHA would proceed to insure that railroad employees are
trained by mine operators is to issue withdrawal orders to the mine operators,
and he stated that "we can issue one against every single customer that
Norfolk and Western has until they comply" (Tr. 104). As a matter of fact in
the instant case, assuming my decision is favorable to MSHA, MSHA stands
ready to issue a section 104(b) withdrawal order to the contestant, thereby
hoping to force submission by employees of the railroad (Tr. 93-94). The fact
that the railroad refuses to submit its employees to training is a matter that
MSHA leaves to me. In short, MSHA's position seems to be that a decision
adverse to the contestant on this.question will undoubtedly result in the
railroad's immediate submission to MSHA's training requirements. Assuming
that this is the case, I am not convinced that in the next identical set of
circumstances MSHA will in fact cite the railroad. My guess is that MSHA will
await the next contest by another mine operator' involving another, or possibly
the same railroad company, and will undoubtedly opt to gain compliance in
precisely the same manner as this case has unfolded.
As I observed during the course of the hearing in this case, MSHA
apparently has made no effort to enforce the training requirements provided
for in the Act or in its mandatory regultory training requirements directly
against a railroad until the unfortunate accident which occurred in this case.
Once the accident occurred, immediate focus was placed on the lack of training
and the fact that there was no confirmation of the fact that the railroad
employee who met his demise was not trained to stay clear of an oncoming trip
of loaded coal cars. Assuming that I were to issue a decision favorable to
MSHA in this case, I honestly and candidly believe that it will not trigger
further enforcement of the training requirements for railroad employees
directly against a railroad. Experience has shown that we will simply await
the next contested case in which the issue is again placed in focus the next
time there is an accident involving a railroad employee performing work on
mine property.
It occurs to me that the time has come for MSHA to meet the problem
presented by the facts of this case head-on rather than to attempt to avoid
the inevitable. MSHA's proposed remedy is an easy solution to its not to
pleasant task of taking on a major railroad. It would be a simple matter to
suggest that the contestant in this case notify the railroad that it is no
longer welcome on its property until such time as it agrees to submit its
employees to MSHA's training requirements. However, I believe that a more
effective sanction would be to cite the railroad as a "mine operator" and

61

insist that it train its own employees. If the railroad refuses, then MSHA
could impose the direct sanction provided for in section 104(g)(l) of the Act,
and order the withdrawal of railroad employees which have not been trained
according to MSHA's requirements. Section 104(g)(l) provides that:
If, upon inspection or investigation pursuant to section
103 of this Act, the Secretary or an authorized representative
shall find employed at a coal or other mine a miner who has
not received the requisite safety training as determined under
section 115 of this Act, the Secretary or an authorized representative shall issue an order under this section which
declares such miner be immediately withdrawn from the coal or
other mine, and be prohibited from entering such mine until
an authorized representative of the Secretary determines that
such miner has received the training required by section 115
of this Act.
Section 104(g)(l) mandates the immediate removal from mine property of
miners who have not received the requisite training mandated by section 115
of the Act and the Secretary's regulations implementing those requirements.
Section llS(a) requires each mine operator to establish its own training
programs, subject to review and approval by the Secretary. Since an independent contractor is in fact a mine operator under the Act, and since MSHA
has indicated it will treat railroads such as the Norfolk & Western on an
equal basis with other operators, then it seems to me that MSHA should hold
all such railroads accountable on an equal footing with other mine operators
~nd the railroad should be required to train its own employees or suffer the
consequences of having its untrained personnel barred from mine property
through the sanction of a withdrawal order served directly on the railroad
company.
No. VA 80-95-R
Citation No. 698510
In this case the contestant is charged with a violation of sectipn
77.1607(v) for the failure by its car dropper to keep two loaded cars under
control in a manner to insure that the cars could be safely stopped "when
needed." The cited standard states as follows: "Railroad cars shall be
kept under control at all times by the car dropper. Cars shall be dropped
at a safe rate and in a manner that will insure that the car dropper maintains a safe position while working and traveling around the cars. 11
Inspector Clevinger testified that he issued the citation in question
after being advised by plant supervisor Ronnie Cox during the course of the
accident investigation that car dropper James Bennett could not control the
trip of cars which were involved in the accident. Mr. Clevinger confirmed
that he was present when certain post-accident car tests were conducted on
Monday, February 11, but denied that the tests influenced his decision to
issue the citation. He issued the citation because the cars were not under

62

control and his conclusion that they were not under control stemmed from the
fact that the car dropper could not stop them (Tr. 83-85). Mr. Clevinger
further confirmed that he had no way of knowing why the cars in question were
not under control, and MSHA's counsel confirmed that the citation was issued
because the car dropper couldn't stop the cars and had to jump off to protect
himself (Tr. 129-130).
Car dropper James Bennett described the procedure he followed in
dropping the cars which were involved in the accident. After cleaning some
snow off the tracks, throwing some switches, and consulting with several
employees of the railroad as to where he should drop the cars, he was advised
by Harman car dropper Bill McCoy that one of the loaded cars had no brakes
and that it should be held .by another car. Mr. Bennett proceeded to position
another car in place to hold back the one with no brakes and his intent was
to drop and couple the cars onto the rear of a trip of cars which were ready
to be pulled out by the locomotive. However, that trip had been moved out
before he could drop and position the cars he was handling, and as he dropped
them he picked up speed, attempted to apply pressure to the brakes, and when
they would not hold, he jumped off the fast moving trip. He then proceeded
to the area where he thought the cars had derailed and found the man who had
been struck and killed by the runaway cars (Tr. 137-143).
Mr. Bennett stated that he has 27 years experience as a car dropper, and
indicated that during any 8 hour shift "anywhere from one to five cars" with
faulty brakes are encountered. He indicated that the contestant is not
equipped to make major brake repairs and that efforts at correcting such
problems are limited to making brake adjustments (Tr. 144). He also confirmed that when he finds a car with defective brakes, he simply places it
behind another one with good brakes and attempts to control both cars with
the one with the best brakes (Tr. 151; 157-158). That is what he did in this
case, but the front car would not hold the other cars behind it and they ran
away and struck the rear of the train of cars which was being pulled away
(Tr. 154-155). He is no longer employed with Harman and does not know whether
the procedures for dropping cars has changed as a result of the accident (Tr.
158). However, he did allude to the fact that when cars are found with
defective brakes they are marked with chalk so as to alert the train crew
that they need repair, and the railroad is responsible for repairs. Once
they are repaired, the chalk marks are removed by painting over them, but he
has observed empty cars returned to the tipple loading point with the chalk
marks intact indicating that the brakes are still not repaired. These cars
with defective brakes are logged in a record book and the railroad is supposed
to take care of them (Tr. 157-162).
Car dropper Bill McCoy, testified that at the time of the accident his
duties involved the dropping and positioning of empty railroad cars at the
tipple loading point. He confirmed that he often encountered empty cars
being returned by the railroad with defective brakes and he indicated that he
is not equipped to do anything but make minor brake adjustments and that the
railroad has the responsibility of maintaining the cars which they own. He
confirmed that cars with faulty brakes are controlled by positioning them

63

behind ones with good brakes, and he also confirmed the system of marking the
defective cars to alert the railroad to make the necessary brake repairs
(Tr. 163-169). He also stated that he has had to jump off a car because he
could not stop it and indicated that when cars with defective brakes are
found they are loaded anyway (Tr. 171), but he explained that they are
usually positioned behind cars with good brakes (Tr. 174), and more than one
car dropper is used to control the cars in these cases (Tr. 178). Mr. McCoy
also stated that a car with defective brakes which is usually placed behind
one with good brakes can usually be controlled by the car dropper, and that
is the usual manner to "build trips." However, in this case the train had
already pulled out and Mr. Bennett had no choice but to drop the cars down
to a location where others could be positioned behind them (Tr. 182).
Contestant's Vice-President Hurley testified as to the procedures
followed by the car droppers at the preparation plant, explained the logistical difficulties in removing empty cars which are returned by the railroad
with defective brakes, and he believed that the practice of placing cars
behind others with good brakes is a safe practice as long as the car dropper
does not attempt to drop one loaded car by itself. In short, the current car
dropping procedures are essentially the same as those which were in effect
at the time of the accident, except that more emphasis is now placed on those
procedures, and in particular the fact that single cars should not be dropped
and insuring that only a minimum number of cars are placed behind those with
good brakes (Tr. 186-195). He also indicated that contestant has limited
facilities for making brake repairs, was unsure as to the contestant's right
to make such repairs, and his testimony regarding the braking problems is
reflected in pertinent part as follows (Tr. 199):
I don't know of anything that has been done on either
side on what you're asking now. We're getting down to do
any repairs to their brakes other than the fact that we mark
the cars so that they can tell the ones that have the bad
brakes or no brakes and we're just not in any position to
dictate to them to what they do. We have had bad brakes and
no brakes for as long as I can remember and as for as long
as I can remember most of all coal mining companies drop
their cars through under their loading points and drop them
out on the lower end. There are few exceptions. And there's
always been a problem with brakes that you've always had to
have some kind of system to keep the good brakes and bad
brakes together to affect the safe dropping.
Tipple foreman David Ratliff testified that his duties include the
supervision of car droppers and he was the shift foreman on the day of the
accident in questiono He described the general procedures used for the
loading and dropping of the railroad cars and confirmed the fact that cars
with defective brakes are controlled by placing them behind cars with good
brakes (Tr. 228-231). He confirmed that he checked the brakes on the cars
involved in the accident and that he knew the brakes on one of the cars were
bad before it was loaded because Mr. McCoy told him so (Tr. 234). When asked

64

to give his opinion as to what caused the cars to get away from Mr. Bennett,
he stated that one car had bad brakes, one car had good brakes, and that
"something did go wrong, the brakes failed. The brake would not hold the
two cars" (Tr. 238-239).
MSHA's theory in support of the violation is that the car dropper had
to jump from the cars because he obviously could not control them, and since
he could not control them a violation of section 77.1607(v) occurred; and,
the fact that no one knows why the car dropper could not control the cars is
immaterial (Tr. 130). Further, during the hearing, MSHA's counsel points to
the fact that the contestant knew that one of the cars had faulty brakes,
yet still dropped it with another loaded car behind it, and the trip could
not be controlled (Tr. 131).
Contestant's defense to the citation rests on its jurisdictional argument that the site of the accident was not on coal mine property and that it
occurred at a site physically separate from the preparation plant and from
the coal preparation function performed at the plant. This defense is
rejected. The evidence establishes that the loaded cars involved in the
accident had been dropped into place at the preparation plant where they were
loaded with coal processed at that plant and were then being dropped into
position by contestant's car droppers. While attempting to drop these cars,
the car dropper lost control of the cars and he jumped from the cars to protect himself. The resulting run-away trip of loaded cars continued on their
way until they came to rest after colliding with the trip of cars being
transported from the coal mine property. In these circumstances, I conclude
and find that the alleged violation occurred on coal mine property and that
contestant was properly served with the citation. Further, on the basis of
the evidence and testimony presented by MSHA in support of the citation, I
conclude and find that the failure by the car dropper to maintain control of
the trip of loaded coal cars constituted a violation of the cited mandatory
safety standard and the citation is AFFIRMED.
While I have affirmed the citation in this case, I take note of the fact
that abatement was achieved by mine management giving a safety talk to its
employees with regard to the proper procedures to be followed during the car
dropping process, and the posting of those procedures on the mine bulletin.
However, it would appear from the testimony and evidence adduced in this case
that contestant is apparently still permitting railroad cars with defective
brakes to be loaded and dropped into place behind cars with good brakes and
that MSHA still accepts this procedure and the inspector apparently accepted
it when he terminated the citation (Tr. 85-86). Although the official accident report does not specifically conclude that the use of cars with defective brakes contributed to the accident which occurred, it seems to me that
the testimony of those persons directly involved in the incident warrants a
further examination of the continued use of such cars in the loading and
dropping process. Requiring a car dropper to maintain control over loaded
coal cars at all times while such cars are dropped down a grade is one thing,
but requiring him to do so with additional loaded cars with defective brakes
coupled to the rear of the one on which he is riding defies logic. Again,

65

.

it occurs to me that some action should be taken against the railroad to
insure that the defective brakes on their cars are repaired, or to insure
the removal of such cars from service.

j!d . . ~)
/~ ~--'
. _/--,z1-z-·t-,£_,<~c,~

,/--;p::JC.,z,·~

~ George A. Kout as

Administrative Law Judge
Distribution:
Robert M. Richardson, Esq., Richardson, Kemper, Hancock & Davis,
602 Law & Commerce Bldg., Bluefield, WV 24701 (Certified Mail)
John H. O'Donnell, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Clarence Barton, Esq., President, UMWA, Local 7025, Harman, WV 24618
(Certified Mail)

66

'"

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

'JAN 5

19B1

Civil Penalty Proceeding

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

Docket No. LAKE 80-311
A/O No. 33-02024-03093

v.
Powhatan No. 7 Mine
QUARTO MINING COMP ANY,

Respondent
DECISION
This case consists of a petition for the assessment of a civil
penalty for one alleged violation of the Act. The operator has filed a
motion to dismiss the proceeding and the Solicitor has filed a memorandum
in opposition to the respondent's motion. For the reasons which follow
respondent's motion is hereby GRANTED.
Citation 1008730 was issued for an alleged violation of 30 CFR
75.316. On September 8, 1980 a hearing was held in Secretary of Labor
v. Nacco Mining Company, Quarto Mining Company and The North American
Coal Corporation, LAKE 80-251, et al. in which the same provision of
respondent's dust control plan at issue in this citation was litigated.
In those cases a decision dated September 22, 1980 held invalid this
provision of the dust control plan. The decision in LA.KE 80-251 is
dispositive of this citation.
ORDER
Citation 1008730 is hereby VACATED and the petition to assess a
civil penalty is hereby DISMISSED.

Assistant Chief Administrative Law Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland,
OH 44199 (Certified Mail)
John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W.,
Washington, DC 20036 (Certified Mail)

67

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

JAN 5

198t

Civil Penalty Proceeding
Docket No. LAKE 80-360
A/O No. 33-01157-03167
Powhatan No. 4 Mine

QUARTO MINING COMPANY,
Respondent
DECISION
This case consists of a petition for the assessment of civil
penalties for two alleged violations of the Act. The operator has filed
a motion to dismiss the proceeding and the Solicitor has filed a memorandum
in opposition to the respondent's motion. For the reasons which follow
respondent's motion is hereby GRANTED.
Citations 779679 and 825966 were issued for alleged violations of
30 CFR 75.316. On September 8, 1980 a hearing was held in Secretary
of Labor v. Nacco Mining Company, Quarto ~1ining Company and The North
American Coal Corporation, LAKE 80-251,
al. in which the same provision
of respondent's dust control plan at issue in these citations was litigated.
In thuse cases a decision dated September 22, 1980 held invalid this
provision of the dust control plan. The decision in LAKE 80-251 is
dispositive of these citations.
ORDER
Citations 779679 and 825966 are hereby VACATED and the petition to
assess civil penalties is hereby DISMISSED.

Administrative Law Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland,
OH 44199 (Certified Mail)
John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W.,
Washington, DC 20036 (Certified Mail)

68

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

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

Civil Penalty Proceeding
Docket No. LAKE 80-384
A/O No. 33-01157-03170
Powhatan No. 4 Mine

QUARTO MINING COMPANY,
Respondent
DECISION
This case consists of a petition for the assessment of a civil
penalty for one alleged violation of the Act. The operator has filed a
motion to dismiss the proceeding and the Solicitor has filed a memorandum
in opposition to the respondent's motion. For the reasons which follow
respondent's motion is hereby GRANTED.
Citation 825974 was issued for an alleged violation of 30 CFR
75.316. On September 8 1 1980 a hearing was held in Secretary of Labor
v. Nacco Mining Company, Quarto Mining Company and The North American
Coal Corporation, LAKE 80-251, et al. in which the same provision of
respondent's dust control plan at issue in this citation was litigated.
In those cases a decision dated September 22, 1980 held invalid this
provision of the dust control plan. The decision in LAKE 80-251 is
dispositive of this citation.
ORDER
Citation 825974 is hereby VACATED and the petition to assess a
civil penalty is hereby DISMISSED.

----~Pa~
Assistant Chief Administrative Law Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Bldg., 1280 East 9th St., ·Cleveland,
OH 44199 (Certified Mail)
John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W.,
Washington, DC 20036 (Certified Mail)

69

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

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

Civil Penalty Proceeding
Petitioner

Docket No. WEVA 80-84
A/O No. 46-01286-03035

v.
Beech Bottom Mine
WINDSOR POWER HOUSE COAL COMPANY,
Respondent
DECISION
The above-captioned case is a civil penalty proceeding brought pursuant
to section 110 1/ of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (hereinafter referred to as the Act).
Inspector Charles Coffield issued Citation No. 811574 to Windsor Power
House Coal Company (hereinafter Windsor) on May 11, 1979. The inspector cited
a violation of 30 C.F.R. § 75.316 2/ and described the pertinent condition or
practice as follows:
1/

Section llO(i) of the Act provides:
"(i) The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation. In proposing civil penalties under this
Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning
the above factors."
2/ Section 303(0) of the Act, reproduced in the regu~ations as 30 C.F.R.
§ 316, reads as follows:
"A ventilation system and methane and dust control plan and revisions
thereof suitable to the conditions and the mining system of the coal mine
and approved by the Secretary shall be adopted by the operator and set
out in printed form within ninety days after the operative date of this
title. The plan shall show the type and location of mechanical ventilation

70

The ventilation, methane and dust control plan was not
being followed in 6 West (028) section in No. 5 entry when
coal was cut with a 15RV cutting machine and there was only
approximately 1280 cubic feet of air per minute and 15 fm
of mean air velocity reaching· the working face. No. 1 entry,
3420 CFM, 29 FM; No. 4 entry, 2625 CFM, 22 FM; No. 6 entry.,
2520 CFM, 30 FM. * * * 3600 CFM, 35 FM required.
Approximately 2 hours later, the inspector issued an order of withdrawal pursuant to section 104(b) of the Act on the grounds that "little or no effort"
was made to abate the condition.
Windsor has previously contested the issuance of both the citation and
order in a review proceeding pursuant to section 105(d) of the Act (hereinafter, the contest proceeding). A decision was rendered in that proceeding
by Judge Melick on March 10, 1980. It was found therein that Citation
No. 811574 was properly issued and that Windsor was in violation of 30 C.F.R.
§ 75.316 as alleged.
Windsor petitioned the Commission for discretionary review of the decision rendered in the contest of Citation No. 811574, but the petition was not
granted. Windsor did not pursue its right to obtain judicial review pursuant
to section 106 of the Act. The decision rendered in the contest proceeding,
therefore, became a final decision of the Commission.
A petition for assessment of a civil penalty was filed by the Secretary
of Labor (hereinafter the Secretary) on December 17, 1979. After assignment
of the case on February 12, 1980, it was set for hearing in Charleston,
West Virginia, on May 12, 1980, along with another subsequently settled case,
Docket No. WEVA 80-68. On March 19, 1980, pending settlement negotiations,
the cases were continued to April 18, 1980. On April 17, 1980, the cases
were continued to June 18, 1980. Windsor stated that the parties were in
the process of developing stipulations of fact and that no evidentiary hearing would be necessary.
On June 13, 1980, Petitioner submitted a motion for partial summary
disposition and on August 25, 1980, the parties submitted stipulations of
fact. As grounds for the motion for partial summary disposition, counsel
for Petitioner asserted the following:
1. Under the authority of Reliable Coal Corp., 1 IBMA
51 at 61, the "fact of violation" should not be litigable in
more than one administrative proceeding.

fn. 2 (continued)
equipment installed and operated in the mine, such additional or improved
equipment as the Secretary may require, the quantity and velocity of
air reaching each working face, and such other information as the Secretary
may require. Such plan shall be reviewed by the operator and the Secretary
at least every six months."

71

2. In the case at bar, a Notice of Contest was filed
and on December 12, 1979, an evidentiary hearing was held
before Judge Melick on the underlying fact of violation.
3. On March 10, 1980, a decision was issued by Judge
Melick. affirming the fact of violation.

4. On April 7, 1980, the Contestant filed a Petition
for Discretionary Review with respect to Judge Melick's
decision issued on March 10, 1980.
5. The Petition was subsequently denied by the
Commission.

6. The Secretary does not oppose Windsor Power House
Coal Company's right to an evidentiary hearing in the civil
penalty proceeding, however, the proceeding should be limited
to the six statutory criterion found in 105(B) of the Federal
Mine Safety and Health Act of 1977, and not include another
hearing on the fact of violation which has already been
established.
Windsor. filed its statement in opposition to Petitioner's motion for
partial summary disposition on July 1, 1980. Windsor disagreed with the decision rendered in the earlier contest proceeding and desired to relitigate the
fact of violation.
The parties submitted stipulations of fact on August 25, 1980.
stipulations are as follows:
1. At approximately 2:00 p.m. on May 11, 1979, Inspector
Charles B. Coffield arrived at Respondent's Beech Bottom Mine.
2. Shortly after 2:00 p.m. on May 11, 1979, Inspector
Coffield and Roger Gaynor, representing Respondent, entered
the mine and proceeded to the Six West section.
3. The feeder for the Six West section, which was
located approximately 240 feet outby the face of the No. 4
entry, had broken at about 2:45 p.m. on the subject date.and
was not repaired during the 8:00 a.m. to 4:00 p.m. shift on
May 11, 1979.
4. After the above-mentioned feeder had broken, the
Six West· section crew went to the dinner hole, except for the
bolters and the men repairing the feeder.
5. While walking towards the face of the No. 5 entry in
the Six West section at about 3:05 p.m., Inspector Coffield
and Mr. Gaynor noticed an energized cutting machine in the
No. 5 entry.

72

These

6. While in the No. 5 entry Inspector Coffield asked the
section foreman what the air reading was when the cutting
machine was cutting coal in the No. 5 entry and the foreman
responded that the cutting machine had quit cutting just about
1/2 hour ago (at approximately 2:45 p.m.). At that time there
was 4100 cubic feet a minute (hereinafter "cfm") of air reaching the No. 5 face and about 4000 cfm of air reaching the face
of the other entries.
7. At no time during Inspector Coffield's inspection on
May 11, 1979, did Inspector Coffield or Mr. Gaynor observe
the cutting machine cutting coal in the Six West section of the
Beech Bottom Mine.
8. At no time during Inspector Coffield's inspection on
May 11, 1979, did any of the parties observe the loading of
coal in the Six West section of the Beech Bottom Mine.
9. After observing the No. 5 entry Inspector Coffield
and Mr. Caynor (hereinafter the "parties") proceeded to the
No. 1 entry at approximately 3:20 p.m. and observed spot
roof bolting in the last open crosscut between the No. 1 and
2 entries. Spot roof bolting was concluded in the applicable
area at approximately 3:25 p.m.
10. After the above spot roof bolting was completed, no
other equipment was used by the Six West section crew during
the May 11, 1979, 8:00 a.m. to 4:00 p.m. shift.

11. Except for two miners who were repairing the feeder,
the 8:00 a.m. to 4:00 p.m. Six West section crew left the
section between 3:30 and 3:40 p.m. on May 11, 1979.
12. The afternoon shift at the Beech Bottom Mine begins
at 4:00 p.m. and ends at 12:00 a.m.
13. At about 3:45 p.m. on the subject date Inspector
Coffield took an air reading in the No. 5 entry and determined that the quantity of air at the face of the No. S entry
at the time was less than 3600 cfm and the mean air velocity
reaching the face was less than 35 feet per minute
(hereinafter "fm 11 ) .
14. The parties then proceeded to the No. 1 entry where
Inspector Coffield determined that there was an air quantity
of 3420 cfm and an air velocity of 24 fm.
15. After the Inspector took air readings in the faces
of the No. 2 and 3 entries and determined that the quantity
and velocity of air was greater than 3600 cfm and 35 fm, the

73

parties then proceeded to the No. 4 entry at approximately
4:00 p.m.

16. After Mr. Gaynor was relieved by Mr. Roxby in the
No. 4 entry, Inspector Coffield determined that the air
quantity and velocity in the face of the No. 4 entry was
2625 cfm and 25 fm respectively and the air quantity and
velocity in the face of the No. 6 entry was 2520 cfm and
30 fm respectively.
17. At the time Inspector Coffield took his air readings in the Six West section on May 11, 1979, because the
miners working the day shift had left and the miners working
the afternoon shift had not yet begun working, the equipment
in the Six West section was not energized and no miners were
working in the face area of any of the entries of the Six
West section.
18. Thereafter Inspector Coffield served upon Mr. Roxby
Citation No. 811574 (a copy of which is attached hereto as
Exhibit A) alleging a violation of 30 C.F.R. § 75.316, in that
the ventilation plan was not being followed in the Six West
(028) section in. the No. 5 entry where coal was cut with a
15RV cutting machine, since there was only approximately
1280 cfm of air and 15 fm mean air velocity in the working
face; No. 1 entry 3420 cfm, 24 fm; No. 4 entry 2625 cfm,
22 fm; No. 6 entry 2520 cfm, 30 fm. Inspector Coffield
further alleged that the ventilation plan required 3600 cfm
and 35 fm mean air velocity.

19. On May 11, 1979, at 5:40 p.m., Inspector Coffield
served upon Respondent Order of Withdrawal No. 811576 (a copy
of which is attached as Exhibit B) alleging that little or no
effort was being made to abate this violation in that air
had not been increased in No. 5 and 6 entries of 6 West (028)
section although 1 and 4 entries were increased to more than
3600 cfm and 35 fm.
20. Respondent's ventilation plan in effect at the time
of the issuance of Citation No. 811574 provided in Item 24 on
page 5 and Item 2 on page 6 that Respondent shall "maintain a
minimum of 3000 cfm at each working face, where coal is being
cut, mined, loaded or the roof bolted * * *·" A copy of the
subject ventilation plan is attached hereto as Exhibit C.
21. Respondent's subject ventilation plan stated in Item 1
on page 12 in column form:
Quantity air at face - 3600 cfm
- 35 fpm
Mean air quantity

74

The above constitutes the ventilation plan's only reference
to mean air velocity.
22. 30 C.F.R. § 75.301-1 specifies that "[a] minimum
quantity of 3000 cubic feet a minute of air shall reach each
working face from which coal is being cut, mined, or loaded or
any other working face so designated by the District Manager,
in the approved ventilation plan."
23. 30 C.F.R. § 75.301-4(a) specifies that "except***
in working places where a lower mean entry air velocity has
been determined to be adequate to render harmless and to carry
away methane and to reduce the level of respirable dust to
the lowest attainable level by the Coal Mine Safety District
Manager, the minimum mean entry air velocity shall be 60 feet
a minute in (1) all working places where coal is being cut,
mined, or loaded from the working face with mechanical mining
equipment * * *·"
24. Beech Bottom Mine constitutes a coal mine, the
products of which enter commerce or the operations or products
of which affect commerce. Respondent, Windsor Power House
Coal Company, operates and at all times pertinent to the citation and order at issue operated Beech Bottom Mine. Respondent and every miner employed in the above-stated mine are
subject to the provisions of the Federal Mine Safety and
Health Act of 1977.
25. Jurisdiction of the above-captioned matter vests
in the Federal Mine Safety and Health Review Commission.
26. As of June 27, 1980, Beech Bottom Mine employed
231 UMWA and 57 exempt and nonexempt employees. The mine,
which is Respondent's only mine, produced a total of
575,935 tons of coal during 1979. Windsor Power House Coal
Company is a wholly-ovmed subsidiary of Ohio Power Company.
Motion for Partial Summary Judgment
The question presented by Petitioner's motion for partial summary
judgment is whether the operator can litigate the fact of violation before
one judge in a proceeding contesting the citation and order and later
litigate the same fact of violation before another judge in a civil penalty proceeding.
Petitioner's position is, in essence, that the fact of violation should
not be litigable in more than one administrative proceeding. By reference,
Petitioner sought application of the doctrines of res judicata or collateral
estoppel to prevent Respondent from litigating the"°fact of violation twice.

75

Windsor advanced a number of arguments in opposition. Windsor urged,
in substance, that the fact of violation alleged in the citation must be
reviewed two times because 29 C.F.R. § 2700.73 in the Procedural Rules of
the Commission states that an unreviewed decision of a judge is not a precedent binding on the Commission. While it is not a precedent binding on the
Commission or its administrative law judges in future cases, discretionary
review was denied by the Commission and the decision is, therefore, a final
order of the Commission. Section 113(d)(l) of the Act provides that the
decision of the administrative law judge of the Commission shall become the
final decision of the Commission 40 days after its issuance unless within
such period of time the Commission has directed that such decision shall be
reviewed by the Commission. It does not follow that, because the decision
is not a precedent binding on the Commission in future cases, the fact of
violation in this case must be reviewed two times. By this assertion,
Windsor apparently seeks a second trial on the issue of the fact of violation by application of the rules of legal precedent and stare decisis which
are distinct from those regarding res
and collateral estoppel.
Windsor's assertion that the doctrines
res judicata or collateral
estoppel should not be applied in the instant action in which the judge's
decision was unreviewed is unfounded.
Respondent advanced a second argument in support of its contention that
the doctrines of res judicata or collateral estoppel should not be applied
in this proceeding by asserting that these doctrines preclude only matters
which can be demonstrated to have been litigated and determined. '}_/
In the review proceeding, the judge determined that Windsor was in violation of 30 C.F.R. § 75.316. This precise question of the fact of violation is
the one raised in the instant proceeding. The basis of the decision in the
review proceeding was that Respondent failed to provide the amount of ventilation required by the ventilation plan. The time at which the air measurements
were taken and the violation was found to have occurred was during the mining
cycle even though coal was not actually being cut, mined or loaded, or the
roof bolted. In view of the stipulations by the parties in the instant proceeding, the basis of any finding as to whether Windsor was in violation of
the same regulation, 30 C.F.R. § 75.316, would also be whether Respondent
was required to maintain the required amount of ventilation even though coal
3/ Windsor cited Russell v. Place, 24 L.Ed 214 (1876), which involved a
suit for patent infringement, and in which the U.S. Supreme Court stated:
"It is undoubtedly settled law that a judgment of a court of competent
jurisdiction, upon a question directly involved in one suit, is conclusive
as to that question in another suit between the same parties. But to this
operation of the judgment it must appear, either upon the face of the record
or be shown by extrinsic evidence, that the precise question was raised and
determined in the former suit. If there be any uncertainty on this head~
record * * * the whole subject matter of the action will be at large,
and open to a new contention, unless this certainty be removed by extrinsic
evidence showing the precise point involved and determined." [Emphasis added.]

76

was not actually being cut, mined, or loaded or the roof bolted at the time
the air measurements were taken.
Windsor argued, however, that the precise determination whether coal
was being "cut, mined, loaded or the roof bolted" had not been made in the
earlier proceeding. It asserted the following:
. WPHCCo contested the validity of the subject citation
and the order based thereon on the basis that no coal was
being "cut, mined, loaded or the roof bolted 11 at any of the
subject face areas at the time of the issuance of the subject
citation and order and that the locations cited by the Inspector did not constitute "working faces." * * * Subsequently
on March 10, 1980, Judge Melick issued his decision, in which
he determined that the readings were taken at "working faces".
However, while Judge Melick determined that "there was no
active cutting or loading of coal in any of the face areas",
he made no determination as to whether coal was being "cut,
mined, loaded or the roof bolted" at the subject locations
at the time of the issuance of the subject citation.
[Footnote omitted.]
In a footnote, Windsor referred to page 2 of the decision. On page 2 of
the decision, the judge stated at the beginning of the last paragraph that:
The air readings cited herein were taken in the Nos. 1,
4, 5, and 6 entries of the 6 West section of the mine by
Inspector Coffield beginning around 3:45 p.m., on May 11,
1979. At that time there was no active cutting or loading
of coal in any of the face areas although mining equipment
was being moved about.
It is possible that these sentences, taken out of context, provide the
basis for Windsor's allegation that a litigable issue still exists. However,
not only had the judge in that decision clearly held that Windsor was in
violation of 30 C.F.R. § 75.316, but it is also clear that he had not ignored
or overlooked the issue of roof bolting in his rationale. The judge also
stated on page 2 of his decision that:
It is apparent, however, that Windsor has reached an
erroneous conclusion because of its misplaced reliance upon
only a small segment of the definition of "working face"
lifted out of context. "Working face" is defined in
30 C.F.R. § 75.2(g)(l) as "any place in a coal mine in
which work of extracting coal from its natural deposit in
the earth is performed during the mining cycle." The issue
to be resolved then is not whether the inspector's air readings were taken while coal was being extracted, but rather
whether the readings were taken at places "in which work of
extracting coal from its natural deposit in the earth [was]
performed during the mining cycle."

77

After finding that the readings were taken beginning around 3:45 p.m.,
the judge stated:
The operator concedes that the full sequence of conventional mining operations continued in the cited entries until
2:45 p.m. It appears that at that time the feeder had broken
down and, as a result of that and an anticipated shift change
at 3:45 p.m., the various operations were being phased out.
Even after 2:45 p.m., however, the evidence shows that further
work was performed with the admitted purpose of setting up the
entries for production to resume as soon as the feeder was
repaired. The uncontradicted evidence shows that various
equipment used in the mining cycle was energized at least
until 3:45 p.m., that a roof-bolting machine continued to
spot roof bolts (the process of replacing bolts) at the inby
corner of the No. 1 entry until at least 3:15 or 3:20 p.m.,
that the cutting machine which had completed cutting the
No. 5 entry at around 2:45 p.m., was on its way to cut the
No. 4 entry and that the loading machine was waiting to
operate in the No. 6 entry.
The decision, therefore, disposes of the issue of roof bolting. It does
not hold or even intimate that the decision was reached because roof-bolting
operations, which continued until at least 3:15 or 3:20 p.m., were still in
progress at 3:45 p.m., when the air readings were taken by the inspector.!!_/
4/ Even if the judge in that decision had not taken cognizance of the issue
of roof bolting and after due consideration found a violation on a different
theory, there would still be no litigable issue in this case as to whether
roof bolting was in progress at the time the air readings were taken because
of the stipulations of the parties. The parties have effectively disposed
of this issue by stipulating that spot roof bolting was concluded in the
applicable area at approximately 3:25 p.m. (Stipulation No. 9) and air readings by the inspector were commenced at about 3:45 p.m. By these stipulations read in context, the parties have therefore agreed that roof bolting
was concluded before the air measurements were taken. There is, therefore,
nothing left to litigate on this issue.
Moreover, Windsor is aware that there was never a litigable issue as to
whether roof bolting was actually in progress at the time the air readings
were started. In footnote 2 to its allegation that the judge had not made
findings relative to roof bolting at the time the air readings were taken,
Windsor stated: "Because the Secretary never alleged that the roof was being
bolted at the subject faces at the applicable times, for the purposes of this
case the "cut, mined or loaded" language in the ventilation plan can be considered as identical to that in 30 CFR 75.301-1 and 30 CFR 75.301-4(a)."
While this acknowledges that no such issue on which the judge was
required to make findings existed, it is not a correct statement. Although
the additional requirement in the ventilation plan for ventilation while the
roof was being bolting was not raised as a factual issue in this case,
that requirement may have a bearing on whether ventilation is required
only at those times, continuously, or during the entire mining cycle.

78

Although the .judge did not find that coal was actually being cut, mined or
loaded or the roof bolted at the time the air readings were taken, he stated:
Within this framework, I have no difficulty concluding
that when Inspector Coffield took his air readings each of
the cited entries was a place in which work of extracting
coal from its natural deposit in the earth was performed
during the mining cycle. Thus, the readings were taken at
"working faces." 30 C.F.R. § 75.2(g)(l). Under the circumstances, the underlying citation in this case was properly
issued and the subsequent order of withdrawal was therefore
valid. [Emphasis added.]
A reading of sections 303(b) and 303(c)(l) of the Act (30 C.F.R. §§ 75.301
and 75.302(a)) 2f by themselves might lead one to conclude that line brattice
5/ Sections 303(b) and 303(c)(l) of the Federal Mine Safety and Health Act
of 1977 (hereinafter, the Act) provide:
"(b) All active workings shall be ventilated by a current of air containing not less than 19.5 volume per centtnn of oxygen, not more than
0.5 volume per centum of carbon dioxide, and no harmful quantities of other
noxious or poisonous gases; and the volume and velocity of the current of air
shall be sufficient to dilute, render harmless, and to carry away, flammable,
explosive, noxious, ,and harmful gases, and dust, and smoke and explosive
fumes. The minimum quantity of air reaching the last open crosscut in any
pair or set of developing entries and the last open crosscut in any pair or
set of rooms shall be nine thousand cubic feet a minute, and the minimum
quantity of air reaching the intake end of a pillar line shall be nine
thousand cubic feet a minute. The minimum quantity of air in any coal mine
reaching each working face shall be three thousand cubic feet a minute.
Within three months after the operative date of this title, the Secretary
shall prescribe the minimum velocity and quantity of air reaching each
working face of each coal mine in order to render harmless and carry away
methane and other explosive gases and to reduce the level of respirable
dust to the lowest attainable level. The authorized representative of the
Secretary may require in any coal mine a greater quantity and velocity of
air when he finds it necessary to protect the health or safety of miners.
Within one year after the operative date of this title, the Secretary
or his authorized representative shall prescribe the maximum respirable
dust level in the intake aircourses in each coal mine in order to reduce
such level to the lowest attainable level. In robbing areas of anthracite
mines, where the air currents cannot be controlled and measurements of
the air cannot be obtained, the air shall have perceptible movement.
"(c)(l) Properly installed and adequately maintained line brattice or
other approved devices shall be continuously used from the last open crosscut of an entry or room of each working section to provide adequate ventilation to the working faces for the miners and to remove flammable, explosive,
and noxious gases, dust, and explosive fumes, unless the Secretary or his
authorized representative permits an exception to this requirement, where

79

or other approved devices are required to be continuously used to provide
3,000 cubic feet of air a minute to each working face. 30 C.F.R. § 75.301-1,
however, provides as follows 6/: "A minimum quantity of 3,000 cubic feet a
minute of air shall reach each working face from which coal is being cut,
mined or loaded and any other working face so designated by the District
Nanager, in the approved ventilation plan." [Emphasis added.] The specific
issue in the earlier proceeding was not whether Windsor was in violation of
section 75.305-1 for failure to provide 3,000 cubic feet of air per minute
at each working face from which coal is being cut, mined or loaded. It was
whether Windsor failed to provide 3,000 cubic feet per minute of air at working faces designated by the District Manager in the approved ventilation plan.
If the ventilation plan specified that 3,000 cubic feet of air per minute must
reach all working faces, the operator would be obligated to provide 3,000 cubic
feet of air per minute to those faces as defined in section 75.2(g)(l), !·~·,
any place in a coal mine in which work of extracting coal from its natural
deposit in the earth is performed during the minirig cycle. As Judge Melick
held, that was the net effect of the provision specifying the places where
3,000 cubic feet of air per minute were required in Windsor's approved
ventilation plan.
Respondent's ventilation plan in effect at the time of the issuance of
Citation No. 811574 provided that Respondent shall "maintain a minimum of
3000 cfm at each working face, where coal is being cut, mined, loaded or the
roof bolted * * *·" [Emphasis added.] Where roof bolting was used to support
the roof in the Beech Bottom Mine, the times and occasions when Respondent
fn. 5 (continued)
such exception will not pose a hazard to the miners. ·when damaged by falls or
otherwise, such line brattice or other devices shall be repaired immediately."
[Emphasis added.]
Section 303(b) of the Act has been reproduced in the regulations as
30 C.F.R. § 75.301. Section 303(c)(l) of the Act has been reproduced in the
regulations as 30 C.F.R. § 75.302(a).
!!._/ 30 C.F.R. § 75.301-4(a), the other. regulation cited by Windsor in its
footnote, concerns the velocity of air and provides as follows:
"(a) On and after March 30, 1971, except in working places using a
blowing system as the primary means of face ventilation or in working places
where a lower mean entry air velocity has been determined to be adequate to
render harmless and carry away methane and to reduce the level of respirable
dust to the lowest attainable level by the Coal Mine Safety District Manager,
the minimum mean entry air velocity shall be 60 feet a minute in (1') all
working places where coal is being cut, mined, or loaded from the working
face with mechanic.al mining equipment, and (2) in any other working place
designated by the Coal Mine Safety District Manager for the district in
which the mine is located in which excessive amounts of respirable dust are
being generated by any type of mechanical mining equipment." [Emphasis
added.]

80

was required to maintain 3,000 cfm at each working face closely correspond to
the sequence of events which comprised the mining cycle found to be in effect
at Respondent's mine. In his decision, Judge Melick found as follows:
The term "cycle" is defined in the Dictionary of Mining,
Mineral and Related Terms, U.S. Department of the Interior
(1968), as the complete sequence of face operations required
to get coal. In conventional mining, as followed in the
Beach Bottom Mine, the sequence consists of supporting the
roof, cutting the face, drilling the face, shooting the face,
and loading and hauling the coal. In order for the face to
be a "working face," it is not therefore necessary that work
of extracting coal be performed at all times. Cf. Peggs Run
Coal Company, Inc., PITT 73-6-P, March 29, 1974-,-aff'd.,
3 IBMA 421, December 6, 1974. The definition clearly contemplates that the mining cycle is a continuing process in spite
of temporary delays caused by shifting equipment or mechanical
break down.
Except for the use of the words "loading and hauling" used by the judge
in the contest proceeding in describing the mining cycle instead of the word
"loaded" used in Respondent's approved ventilation plan, the mining procedures
described a~e identical. Since coal may be hauled away from a face area
during all of the phases of the cycle, the actual hauling at the face area
might be considered for purposes of definition or construction of the ventilation plan to be an inconsequential part of the ''sequence of face operations
to get coal." Thus, the words in Windsor's ventilation plan might be construed
to be identical for all practical purposes with the definition of the mining
cycle. It follows that it could be held that Windsor's ventilation plan
required 3,000 cfm at the working face--defined as any place in a coal mine
in which work of extracting coal from its natural deposit in the earth is
performed during the mining cycle--throughout the entire mining cycle.
Windsor asserted that "the administrative law judge in his March 10,
1980, decision did not determine whether the cutting, mining, and loading
inactivity at the subject face areas at the time of the issuance of the
subject citation should deem the citation and order based thereon invalid,
even though this issue was raised and discussed both orally and in writing
prior to the issuance of the judge's decision." This assertion is unfounded.
The judge expressly stated that "at that time there was no active cutting
or loading of coal in any of the face areas although mining equipment was
being moved about." It is clear that he did not find a violation because
coal was actually being cut, mined, loaded or the roof bolted. The basis
of the decision was that the air readings were taken at places in which the
work of extracting coal from its natural deposit in the earth was performed
during the mining cycle although not while coal was actually being cut,
mined, loaded or the roof bolted. The requirement of the ventilation plan
was not suspended by a temporary interruption of cutting, mining, loading
or roof bolting.

81

In view of the above, Respondent's assertion that Judge Melick did not
make certain determinations critical to the finding of the fact of violation
is rejected.
Unlike the 1977 Act, the Federal Coal Mine Health and Safety Act of 1969
(hereinafter, the 1969 Act) made no provision for the review of abated violations and no provision for the review of unabated notices of violation other
than that made incidental to the review of the reasonableness of the time
allowed for abatement. In Reliable Coal Corp., 1 IBMA 51 (June 10, 1971),
which held that there was no provision in the 1969 Act for review of such
violations prior to the institution of a civil penalty proceeding, the
Interior Board of Mine Operations Appeals stated:
[W)e find no merit in Reliable's contention that the interrelationship of the statutory provisions of sections 104,
105(a)(l) and 109(a)(3), supports its view that an operator
has a statutory right of review of the "fact of violation"
in a section 105(a) proceeding. As we interpret these provisions of the Act, and as we held in Freeman, the Act does
not preclude a determination of this issue in a section 105(a)
proceeding where it is raised as an element of the reasonableness of time allowed for abatement. Indeed, in such case, a
decision under section 105(a) on the issue of reasonableness
of time must inherently incorporate a determination that the
violation did or did not occur -- and such determination, if
final, would be res judicata within the Department. Thus,
the "fact of violation" would not be litigable in more than
one administrative proceeding.
Reliable serves to show that the application of the doctrine of res
judicata was appropriate under the 1969 Act. There is even more reason for
the application of res judicata or collateral estoppel in the instant case.
Under the 1977 Act, provision is expressly made for the review of the "fact
of violation" of a citation in a review case, even when the violation is
abated, Energy Fuels Corp., 1 MSHC 2013 (May 1, 1979).
In Energy Fuels Corporation, the Commission, in holding that the operator is permitted to contest the citation immediately upon its issuance,
stated:
If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we
would expect him to postpone his contest of the entire citation until a penalty is proposed. Even if he were to immediately contest all of a citation but lacked an urgent need for
a hearing, we see no reason why the contest of the citation
could not be placed on the Commission's docket but simply
continued until the penalty is proposed, contested, and ripe
for hearing. The two contests could then be easily consolidated for hearing upon motion of a party or the Commission's

82

or the administrative law judge's own motion. If the operator has an urgent need for a hearing, the Secretary could
make it more likely that the two contests would be tried
together by quickly proposing a penalty. If a penalty is
contested, and the hearing on the citation is already underway, consolidation would still be possible. Moreover, even
if consolidation were not possible, it has not yet been
suggested that principles of repose, such as res judicata, or
collateral estoppel, could not be employed to prevent multiple
hearings on the same issues. We are unwilling to eschew so
early in the history of the 1977 Act these possible avenues
of accommodation.
The proceeding in which Citation No. 811574 and Order No. 811576 were
contested had already been completed, therefore, consolidation with this
civil penalty proceeding was not feasible. Although section 105(a) of the
Act requires the Secretary to propose a penalty within reasonable time after
the termination of an inspection or investigation, compliance with the assessment procedures prescribed in Part 100 of Title 30 Code of Federal Regulations
requires a considerable amount of time. Under the regulations all citations
which have been abated and all closure orders, regardless of termination or
abatement, are referred by MSHA to the Office of Assessments for a determination of the fact of the violation and the amount, if any, of the penalty to
be proposed. These regulations prescribe an initial review of the citation
or order, formula computations, conferences or the submission of additional
information for consideration, issuances of notice of proposed penalty and
notices of contest. In addition to the time required to perform some of these
steps, periods of time such as 10 days, 33 days and 30 days are allowed
between some of the steps. In addition to those delays, 29 C.F.R. Part 100
provides that the Secretary has 45 days from the receipt of the notice of
contest to file a proposal for a penalty with the Commission. Even after
this, the Respondent has 30 days to file an answer, the parties have 60 days
from the filing of the proposal of a penalty to complete discovery and 10 days
to oppose each motion, and notice to all parties must be given at least
20 days before the date set for hearing.
In actual practice, it has developed that considerable time is required
between the issuance of the citation and the assignment of the civil penalty
proceeding for trial. The instant case was not assigned to a judge until
February 12, 1980, 2 months after the contest proceeding hearing had been
held in December 1979. It was not apparent that res judicata or collateral
estoppel was an issue until several months later,-after the case had been
continued, when the Secretary filed its motion for pretrial summary
disposition.
Since consolidation was not feasible by the time the existence of the
review case was disclosed in the record of the instant case, the remaining
alternatives are (1) to make two separate determinations of the same fact
of violation or (2) to apply the doctrines of collateral estoppel or res

83

judicata. 7/ Under the generally recognized rules of law, these doctrines
are applicable in such cases to eliminate wasteful, time-consuming and
possibly disruptive repetitive decisions. The application of the rules of
collateral estoppel or res judicata in the instant case would not contravene
any overriding public interest or result in manifest injustice. The application of these doctrines should not, therefore, be qualified or rejected as
urged by Windsor. This narrow ruling in regard to the issue of "fact of violation" is that Respondent is estopped from having the fact of violation
determined for a second time under the circumstances of this case.
In view of the above, Petitioner's motion for partial summary disposition is granted. A violation of 30 C.F.R. § 75.316 has been established.
Assessment of Civil
Since Windsor was in violation of a mandatory safety standard, the Act
requires that it be assessed an appropriate civil penalty. In assessing
this civil penalty, consideration must be given to the six criteria contained
within section llO(i) of the Act. The facts serving as basis for a determination of those statutory criteria, with the exception of the effect of a penalty on the ability of the operator to remain in business and the operator's
history of previous violations, were stipulated by the parties. In the
absence of indication in the record otherwise, it is found that the penalty
assessed herein will not affect the ability of Windsor to remain in business.
The amount of the penalty assessed will be as if the operator had no history
of previous violations.
The Beech Bottom Mine was above average in size with 288 employees
producing 575,935 tons of coal during 1979.
In the absence of evidence to the effect that the operator knew or
should have known of the inadequate quantity and velocity of air in the Six
West section on i1ay 11, 1979, it is found that the record will not support
a finding of negligence on the part of Respondent. The parties stipulated
that the foreman stated that the cutting machine had quit cutting about
one-half hour previously and that there were 4,100 cfm of air reaching the
No. 5 face and about 4,000 cfm of air reaching the face of the other entries.
The times of the air measurements and who made the measurements upon which
the foreman's statement was based were not stipulated.
a
tnote to
argument,
states:
"Considerable confusion seems to exist regarding when the doctrine of
res judicata is applicable and when the doctrine of collateral estoppel.
Collateral estoppel, unlike res judicata, does not necessitate an identity
of causes of action. See IB Moore~s Federal Practice 0.411[2] at 3777. Both
doctrines are discussed herein."
If confusion exists, it need not be infused into the instant proceeding.
The doctrine of collateral estoppel is clearly applicable. The doctrine of
res judicata may also be applicable.

84

As noted in the stipulations, at the time the inspector took his
readings, the miners working the 8:00 a.m. to 4:00 p.m. shift had left the
section and those working the evening shift had yet to arrive. Two miners
remained on the section to repair the feeder during the pertinent time
period. Two of the faces were ventilated in accordance with the plan. A
third face received only slightly less than the required amount of air. The
ventilation at the remaining three faces was substantially less than that
required by the plan. There is no indication that, because of the reduced
air volume or velocity, methane had been allowed to accumulate or, in the
absence of any actual cutting, mining, loading or roof bolting that there
was any mining activity which would be likely to cause or increase the
liberation of methane. Although the operator was in violation of 30 C.F.R.
§ 75.316 for failure to provide the prescribed volume and velocity of air
for ventilation, there is no indication that such failure for an undetermined, but possibly a short time, actually failed to dilute, render harmless,
and carry away, flammable, explosive, noxious, harmful gases, dust, smoke,
and explosive fumes. It is accordingly found that the probability of an
accident resulting in injury was low.
In the absence of any explanation why the required volume of 3,000 cfm
was not restored in entries 5 and 6 within the time set by the inspector
for abatement, it is found that Respondent did not demonstrate good faith in
attempting to achieve rapid compliance after notification of the violation.
In consideration of the findings of fact and conclusions of law contained
in this decision, an assessment of $50 is appropriate under the criteria of
section 110 of the Act.
ORDER
It is ORDERED that Respondent pay the sum of $50 within 30 days of the
date of this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Michael C. Bolden, Esq., Federal Mine Safety and Health Administration,
U.S. Department of Labor, Office of the Solicitor, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)
David M. Cohen, Counsel for Respondent, American Electric Power Service
Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail)

85

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

JAN 5

1981

Contest of Order

MATHIES COAL COMPANY,
Contestant

v.

Docket No. PENN 79-89-R
Order No. 620637
June 20, 1979

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

Mathies Mine

DECISION
Appearances:

Michel Nardi, Esq., Mathies Coal Company, Pittsburgh,
Pennsylvania, for Contestant;
Barbara K. Kaufmann, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.
The United Mine Workers of America (UMWA) filed an
answer but did not enter an appearance at the hearing.

Before:

Judge Stewart

In the course of a ventilation saturation inspection at the Mathie&
Coal Company's Mathies Mine, the inspector issued Order No. 0620637 pursuant
to section 104(d) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act). 1/ The operator filed a timely challenge to this order pursuant to section lOS(d) of the Act. Subsequent to the hearing in this
matter held in Pittsburgh, Pennsylvania, on February 5, 1980, Contestant
and Respondent Mine Safety and Health Administration submitted posthearing
briefs. Proposed findings and conclusions therein inconsistent with or
immaterial to this decision are rejected.
1/ Originally, on June 20, 1979, the inspector purported to have issued
Order of Withdrawal No. 620637 pursuant to section 104(a) of the Act. Later,
on the same day, he issued a modification of Order No. 620637 showing the
order to have been issued pursuant to section 104(d)(2).

86

In issuing Order No. 620637, Inspector Wolfe cited 30 C.F.R.
§ 75.1002-l(a) and alleged the existence of the following condition or

practice:
The nonpermissible S & S battery charger located between
the 6 and 7 entries at the 26 + 48 split on the 14 Butt
19 1/2 face section (I.D. 055) was 95 feet, as measured
with a standard measuring tape, from the line of pillar being
extracted. The foreman in charge stated that he had seen the
charger earlier in the shift.
Section 75.1002-l(a) reads as follows:
Electrical equipment other than trolley wires, trolley
feeder wires, high voltage cables, and transformers shall
be permissible, and maintained in a permissible condition
when such electrical equipment is located within 150 feet
from pillar workings, except as provided in paragraphs (b)
and (c) of this section.
The factual details established at the hearing are set forth below in the
stipulations by the parties, the synopsis of the exhibits, and the synopsis
of the testimony of each witness called by the parties.
Stipulations
At the hearing, the parties stipulated that the Mathies Mine is owned
and operated by Mathies Coal Company; that both are subject to the jurisdiction of the Mine Safety and Health Act of 1977; that the Administrative law
Judge has jurisdiction over this proceeding; that inspector Okey Wolfe was
at all times relevant hereto an authorized representative of the Secretary
of Labor; that true and correct copies of the order and modification were
serverl upon the operator in accordance with the provisions of the Act; that
copies of the order and modification are authentic and may be entered into
evidence as authentic docl.Il11ents; that the citation or the violation was
timely abated; that the battery charger in question was not permissiqle
electrical equipment; that the battery charger was located 95 feet from the
pillar line as specified in the order; and that the subject battery charger
was deenergized and unplugged from the load center.
Exhibits
MSHA Exhibit 1 is Order of Withdrawal No. 062063 7. MSHA Exhibit 2
is a modification of that order stating that the "type of action" should
be 104(d)(2) rather than 104(a).
Contestant's Exhibit 1 is a wiring diagram for the battery charger. Contestant's Exhibit 2 is a drawing of 14 butt 19-1/2 face section showing the
general location of the gob, the bleeder entry, the battery charger, and the
load center.

87

of MSHA Witnesses
Okey Wolfe--Federal Coal Mine Inspector, MSHA
The inspector visited the Mathies Mine on June 20, 1979, for the purpose of making a ventilation inspection. While conducting his inspection
on the 14 butt 19-1/2 face section, he found the battery charger located
between the sixth and seventh entries at the 26+48 switch, a distance of
95 feet from the outside corner of the pillar. This was a retreat mining
section and pillar-extraction was in progress. The inspector took measurements and talked to the section foreman in charge of the day shift.
William Lendvei, the section foreman, stated that he had seen the charger
during that shift prior to the commencement of mining and that the charger
had been in this location at least for a day or two. By questioning foreman
Lendvei, the inspector determined that mining had been done on the same
pillar on the midnight shift. He informed Mr. Matson, the company representative traveling with him that day, that an order had been issued and
in discussing the violation, Mr. Matson concurred that a violation did exist
by stating, "They (the company) had been caught with their pants down."
The notation 11 104(a) 11 on the order of withdrawal was a mistake on the
part of the inspector. He usually issues a 104(a) citation and in filling
out the form without thinking, he wrote "104(a)" rather than "104(d)(2)."
When he discovered the violation, he informed the foreman that an order was
going to be issued. After Inspector Wolfe discovered his mistake on the
ride back to the office, the order was modified by inspector Thomas H.
Devault to show that the type of action was a 104(d)(2).
The battery scoop has to be charged periodically depending upon the
amount of use it receives. The battery charger was set up as a charging
station but it was not hooked up. In order for it to be put to use, it
would be plugged into the power center and energized. The scoop is used
for cleaning up sections. It does a better job of getting up against the
ribs to get the loose coal than the miner itself does. The inspector has
seen it used to haul supplies from outer areas to working places if needed.
It is possible for mining operations to take place without the us~ of a
scoop and coal could be mined without using a scoop even once during a
shift. The scoop was not being operated on the section when the inspector
arrived and he does not recall seeing it in use until the order was issued
when it was used to move the charger.
The charger was not energized and the cable was wound up at the charger.
The load center was located a little over a block of coal outby the charg
station, a distance of a little more than 96 feet. The distance between the
center lines of the block entries was 96 feet. Give or take a couple of
yards, the battery charger was 120 feet from the battery charger. To be
energized, the charger must be plugged into the load center. The load
center was energized. There were no batteries in the charger.
The continuous-mining machine is permissible equipment which can be
used inby the last open crosscut or in return areas. Permissible equipment
·is so sealed that, where there is a chance of arcing or sparking from the

88

components of the electrical equipment, it will prevent the escape of flame
into what might possibly be a methane atmosphere. Equipment is certified by
the Secretary as to whether it is permissible or nonpermissible. Under section 75.1002-1, the idea is to keep any type of nonpermissible equipment
that could serve as an ignition source more than 150 feet away from any
pillar areas. It is not uncommon for methane to build up in a pillar and
a large flow of air can force methane out of the gob area into the working
place. In order to have a fire or explosion, there must be an ignition
source. The effect of a roof fall within 150 feet of the gob where methane
was liberated on a deenergized continuous-mining machine and a deenergized
battery charger would be similar. The methane detected by the inspector in
the outlying area was very minimal. He could not attest to what was back in
the pillar. The battery charger does not have gasoline in it.
The inspector did not measure the length of the charger cable. In his
opinion, there was enough cable to reach the power center but he did not
stretch it out. If the cable had been too short, the charger could be energized by moving the power center, moving the charger, or possibly using a
jumper cable. The input voltage on the charger was 440 volts AC. The scoop
batteries can be charged by removing the batteries or by leaving the tray on
the scoop and charging the batteries with it on. The inspector saw no other
battery-charging station on the section and did not know where the next
nearest battery-charging station was located.
In referring t9 the distance between the battery charger and the load
center marked on Contestant's Exhibit 2, the inspector stated that he was not
sure that they were "quite that far out, but it's close." The distance was
about 100 feet. He acknowledged that it was possible that the cable was in
fact too short. The load center was active at the time providing power to
other operating machinery.
Testimony of Contestant's Witnesses
Allen M. Newcoe--Manager of Purchasing and Materials Control, Eastern Region,
Consolidation Coal Company
A permissible enclosure is one so constructed that it eliminates the
escape of hot gases. It protects against the admission of combustible materials into the area in which electrical equipment is operated in case there
is an internal explosion. If a piece of equipment is not being operated,
the permissibility would not be questioned.
When exposed to a roof fall within 150 feet of a pillar line, there
would be a great hazard from energized, nonpermissible equipment Rnd less of
a hazard from energized permissible equipment. If i:hey were both deenergized,
there would be no hazard present. Contestant's Exhibit 1 is a schematic
diagram of a battery charger with a 440-volt input and a 20-volt output. A
battery charger's function is to charge batteries.
To energize the battery charger, it is plugged into a 440-volt source,
the switch on the load center turned on, and the switch on the battery
charger activated. He knows of no other equipment used in the section that

89

utilizes batteries requiring charging in this particular battery charger.
TI1e load center is not permissible equipment. The charger serves.as a power
source for the mining face equipment and is continually energized during
mining operations. The function of the scoop is to clean up or to transport
materials to the mining junction. The length of time that a charge for a
battery will last is based on the use and load it is carrying. Normally, it
will operate a full shift without being recharged. There would be no purpose in energizing the battery charger other than for charging the battery
to the scoop. A roof fall on the battery charger in its deenergized,
unplugged state would be no different from a roof fall on a lunch bucket.
Mr. Newcoe works at the offices of Consolidation and was not at the mine
to observe the actual work activities of the section. The scoop would probably not be operated continuously for 8 hours. The plug is inserted by hand,
normally without the use of tools, by plugging it in and spinning the cap.
Bruce Matson--General Assistant Mine Foreman
Mr. Matson escorted Inspector Wolfe on a "blitz" inspection which was
being made by a number of Federal inspectors. When Mr. Wolfe told him that
the battery charger was not within permissible distance from the pillar line,
Nr. Matson replied that it was inoperable and the cable was wrapped up on the
charger. The battery charger was not being used at the time. The scoop was
not running at the time but it could have been operated. The battery charger
was better than one block from the load center, a distance of over 100 feet.
The cable itself was not as long as the block. There were no batteries in
the general vicinity of the battery charger. The charger must be operated
in intake air because of the hydrogen gas generated. The section was mined
from left to right and there was mining on the last block on the right side
of the section. Mining the next pillar line, starting with block No. 73,
would establish a new pillar line. The belt line, the track, and the load
center would be moved back.
The load center had been moved back and energized. The unenergized
ba
charger was disconnected so it could be moved back. The cable was
wrapped up on the charger so it could be handled without damage to the cable
when it was picked up and transported to another charger station. It would
be necessary to erect another charger station. It was eventually moved one
break out by.
The scoop was not used continuously. It was run once or possibly twice
each shift. It would probably last 3 or 4 days or possibly the entire week.
It was used only for the primary supplies. Assuming one block per day on
three shifts, i t would take a full week to mine the pillar line. If the
battery had been charged before mining was commenced, the charged battery
would last until mining had been completed. Mining had been in progress
4 work days, going into the fifth day. There had been some trouble with
the scoop when the battery itself would not hold a charge but people had
been called in to repair it.

90

Mr. Matson does not recall making a statement that the company had been
caught with its pants down. It has been common mining practice when moving
the belt and the tracks back from an area that has been mined, to cut the
trolley wire and leave that portion of the trolley wire within a 150-foot
distance. He 1 had never received a citation for doing so notwithstanding the
provisions of section 75.1002. There are five working sections under his
jurisdiction at the mine. He does not visit each section every day but he
receives reports of adverse conditions. When the scoop had difficulty in
holding a charge, it would run down sooner than it normally would. Mining
in the last block had started on the midnight shift. They were not mining
when he got there.
It was his understanding that section 75.1002 applied to energized equipment and he did not think that having a battery charger within 150 feet of the
gob was a violation when it was deenergized. A new charging station was constructed and the battery charger moved back. One-half hour or less was
required to do so. It had been more than a week prior to the 20th when there
had been trouble with the battery charger and it had been repaired. He does
not know the days it was out of service and the days it was in service. He
believes there was a fault in the charger itself. Instead of an 8-hour
charge, it was only giving it a 3- or 4-hour charge. He does not know if the
batteries were replaced in the scoop. The problem had first become apparent
several weeks previously. It was holding its charge on the 20th. Mining in
entry No. 6 was on the last block, block No. 71. Block No. 72 was to remain.
The belt and track were not as shown on Exhibit 0-2. They had been moved
back two blocks 4 or 5 days before the date of the citation. The load center
was also moved back at that time.
The distance from the battery charger to the load center was more than
one block. From center-to-center. a block would be 96 feet. The distance would
probably be another 50 feet. The load center was not in the intersection as
shown in Exhibit 0-2. Ordinarily, the belt, track and load center are moved
back about once each week. He does not know of his own knowledge how far the
charger was from the load center.
The battery charger could not have been used from the load center for 4
or 5 days. He believes the scoop could go that long without a charge. He
assumes the charger station had not been built because they were mining coal.
To build a charger station, six posts are set and the area enclosed with tin
shee
After an air current is directed to the location, the charger can
be moved to the stati.on. The trouble with the charger had been eliminated
at least a week before the (d)(2) order. From indications on Exhibit 0-2,
the battery charger was used 4 or 5 days previously when the belt, track,
and load center had been moved. That is the normal mining cycle.
William Lendvei--Section Foreman
Mr. Lendvei worked the 8 to 4 shift on June 20 on the 14 butt 19-1/2
section. He went into the mine with Mr. Wolfe and the UMWA safety representative. After walking through the section at about 8:45 a.m., he started
mining. After mining five or six buggies, the inspector told him to stop

91

mining because the charger was in violation of the law. He was told he had
30 minutes to move it, so he shut down. He believed that so long as it was
deenergized it would not create a hazard and was surprised that this was a
violation of the law. Tne battery charger was not energized and the cable
was coiled next to it. The cable would not reach the load center. He had
been mining there about 4 days and did not use the battery charger during
that time. It could not be used with the cable wrapped up. He did not
measure the cable but knew from previous times that it is less than one
block--96 feet. The distance from the battery charger to the load center
was 1-1/2 blocks. He does not recall the last time the battery was charged.
He believed the battery charger would be moved when there was a breakdown or
delay in mining. He would not have used it at that location. The scoop was
used to transport posts and supplies. He does not know the extent of the
use of the scoop on the evening or midnight shift. The scoop is not used
to clean up.
Valid

of Order No. 620637

An order of withdrawal may be issued pursuant to section 104(d)(l) 2/
if, given the requisite underlying citation, an authorized representative of
the Secretary finds a violation and finds such violation to be caused by
unwarrantable failure of the operator to comply. Once an order has been
issued pursuant to section 104(d)(l), an order pursuant to section 104(d)(2)
may be issued upon observation by an authorized representative of a
"similar" violation. That is, a 104(d)(2) order is properly issued if an
authorized representative observes a violation and finds that such violation
was caused by an unwarrantable failure to comply on the part of the operator.
Mathies urges that: (1) a deenergized battery charger located within
150 feet of the gob is not a violation of 30 C.F.R. § 75.1002-1; (2) Contestant's actions did not constitute an unwarrantable failure to comply with
2/

Section 104(d)(l) of the Act reads as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory
health or safety standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act. If, during the
same inspection or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authorized representative of the
Secre
finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdraW11 from, and to be
prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated."

92

30 C.F.R. § 75.1002-1; and (3) the condition as it existed did not significantly and substantially contribute to the cause and effect of a mine sa
hazard.
It is undisputed that the battery charger in question was not permissible equipment, that it was located within 95 feet of the pillar line as
specified in the order and that it was deenergized and unplugged from the
load center.
In order to energize the battery charger, it was necessary to plug it
into the
zed load center and then activate it by switching it on. The
load center, which was not permissible equipment, was located 1-1/2 blocks,
or approximately 150 feet, outby the battery charger. The battery charger
cable was less than 96 feet in length and was too short to reach the load
center. It had been coiled and placed on the battery charger.
The battery charger was used primarily to charge the batteries of the
scoop, a
of equipment used to haul posts and supplies from the track
entry to the particular mining area. The scoop was not used on a continual
basis during
operations. The length of time a charge would last was
dependent upon the use of the scoop and the load carried. The last occasion prior to June 20, 1979, on which the scoop batteries had been recharged
was not established.
Violation of 30 C.F.R. § 75.1002-1
In pertinent part, section 75.1002-l(a)
that electrical equipment, be permissible and maintained in a permissible condition when such
equipment is located within 150 feet from pillar workings. The battery
charger was
non-permissible and located about 95 feet from the
pillar line. This condition was in violation of the standard as alleged.
Mathies'
that the condition was non-hazardous and, therefore,
not a violation of the standard 3/ is rejected on two grounds. In the first
place, the condition was hazardous and, secondly, there is nothing in the
standard to support the contention that the violation thereof is premised on
the existence of a hazard.

Ab
charger which may be energized is a potential source of ignition. 4/ The unrebutted testimony of the inspector established that the
charger could have been energized by moving the load center or by use of
3/ :Mathies asserted that: "Clearly, the drafters of the regulations contemplated the use of nonpermissible equipment within the 150-foot distance from
the pillar line, since the purpose of the standard is to protect against
explosive hazards. Consequently, a battery charger's location does not
become relevant with respect to the subject mandatory standard until it is
energized, add
the element of potential hazard."
4/ }~thies 1
of a deenergized charger to a lunch pail is specious
for this very reason. A lunch pail is not a piece of electrical equipment
which might be energized or activated.

93

a jumper or extension cable. Mathies contention that it would have been
necessary to move the charger outby its location if it were to be used is
rejected. Since the charger could be energized and used at its location
within 150 feet from the pillar workings, the hazard against which section
75.1002-l(a) is directed clearly existed.
Even if the conditon was not hazardous, it would have been a violation
of section 75.1002-1. Section 75.1002-1 contains certain qualifications to
the application of the mandatory standard but the element of hazard is not
one of them. In essence, Mathies' contention that there is no violation if
the proscribed condition is not a hazard is an attempt to add an exception
to the regulation.
Some regulations promulgated under the Act in Title 30, Code of Federal
Regulations, Section 75, do contain requirements that must be met only when
there is an unsafe condition. Where certain explosive gases are liberated
accidentally, a report must be made and ventilation and control measures
instituted to reduce the accumulations (section 75.301-8). Exposed moving
machine parts which may cause injury to persons must be guarded (section
75.1722(a). Safety chains, suitable locking devices, or automatic cut-off
valves are required at connections of machines to certain high pressure hose
lines or between certain high pressure hose lines where connection failure
would create a hazard, (Section 75.1730(e)). Protective clothing or equipment and face-shields or goggles must be worn when welding, cutting, or working with molten metal or when other hazards to the eyes exist from flying
particles. (Section 75.1720(a))
Section 75.1002-1, however, is clearly not premised on the existence
of a hazard. The qualifying language therein prescribes no exception for
an unenergized battery charger. In view of the clear language of the standard, no basis exists for qualifying the application of the standard by
reading into it a requirement that the condition be hazardous.
Effect of Subsequent Modification
When the inspector discovered the battery charger, he issued an oral
order of withdrawal. He also issued MSHA Form 7090-3 on which he clearly
marked 11 0rder of Withdrawal." The form, as issued, clearly indicated that
the order of withdrawal was directed at the 14 butt 19-1/2 face section. The
order of withdrawal was issued at 10:15 a.m. At 11:05 a.m., after the battery charger had been moved outby so that it was more than 150 feet from
the pillar line, the inspector noted on the same form that the order was
terminated.
On the form there is a space with the heading "Type of Action." In this
space, the inspector inadvertently inserted the characters "104(a)." He
explained that he did this "without thinking" because he issues more 104(a)
citations than orders of withdrawal during his inspections. After the

94

inspector became aware of his mistake on his way to the office, he had
inspector Thomas H. DeVault issue a modification to show that the "type of
action" was 104(d)(2). 5/ On the order of withdrawal, the inspector had
noted in the space marked "Initial Action11 that the underlying order,
No. 231726, was the one issued on November 14, 1978.
In McCoy Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety and
Health Administration, Docket No. KENT 80-243-R (October 31, 1980) (Judge
Steffey), the Administrative Law Judge held that the inspector's order was
not rendered invalid by the fact that he mistakenly wrote an incorrect citation number in the "initial action line." In its contest of an order, the
contestant argued that the inspector did not correct the reference to the
incorrect citation until it had already filed its notice of contest. Contestant also contended that section 104(h) of the Act does not permit the
inspector to modify an order after he has terminated it. In rejecting these
arguments, the Judge stated in part:
In Old Ben Coal Co., 2 FMSHRC 1187 (1980), the Commission affirmed an administrative law judge's decision which
had affirmed four orders of withdrawal which indicated,that
they had been issued under section 104(c)(l) of the Federal
Coal Hine Heal th and Safety Act of 1969 when, in fact, they
should have shown that they were issued under section
104(c)(2) of the 1969 Act. The judge had held that the
incorrect reference to section 104(c)(l) was no more than a
clerical error which did not prejudice Old Ben in any way.
The Commission stated t\iat it agreed with the judge that Old
Ben was not prejudiced because Old Ben did not show how its
defense to a 104(c)(2) order would differ from its defense
to a 104(c)(l) order* * * It appears to me that an inspector
ought to be able to correct a mistake regardless of whether
he discovers it before or after a Notice of Contest has been
filed or whether he discovers it after he has already terminated the order.
There was never any doubt that Inspector Wolfe issued an order of
withdrawal and that it was issued under subsection 104(d)(2) of the Act.
Mathies' contention that the order was issued invalidly in that section
104(a) was cited on the order and the order had been abated 4 hours prior to
its modification to cite section 104(d)(2) is without merit. Although there
5/

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

95

was a clerical error on the form on which the order was issued, it was clear
from the beginning that the inspector issued an order of withdrawal and not
a citation. This error was discovered and corrected on the same day that
the order was issued. There is no evidence whatever that Mathies was misled
or prejudiced by the clerical error.
Significant and Substantial Contribution to the Cause and Effect of a Mine
Safety Hazard
Mathies asserted that the condition as it existed did not si3nificantly
and substantially contribute to the cause and effect of a mine safety hazard.
Although the Secretary did not so allege, the record establishes that the
condition did significantly and substantially contribute to the cause and
effect of a mine safety hazard.
Section 104(d)(2) does not condition the issuance of an order of withdrawal on a finding that the condition found significantly and substantially
contributed to the cause and effect of a mine safety hazard. There is no
such gravity requirement for orders of withdrawal issued under section
104(d)(2). See International Union, United Mine Workers of America v. Kleppe,
532 F.2d 1403, 1407 (D.C. Cir. 1976). Even if there had been such a requirement, it would have been met in this case. As previously discussed in this
decision, a hazard was clearly present.
The battery on the scoop would last for several hours. The length of
time was dependent upon the load and the usage. With no use, the charge
might lpst for several weeks; given normal use, it might last for a week.
Although there had been a time when the battery would hold a charge for
only 3 or 4 hours, the problem had been corrected before June 20. On
June 20, mining had been in progress for 3 or 4 days and the scoop had been
used. The date of the last recharge was not specifically established.
If the battery were to run down before the pillar line was completed,
there was no way to recharge it on the section other than to use the battery
charger. Al though Mr. Lendvei, the section foreman, testified that he would
not have used the charger in the location where it was found by the inspector,
there would have been no operable scoop on the section to move the charger if
the battery had been run down due to hard use or recurring fault. If the
battery had run down, the charger more than likely would have been used to
charge the battery by someone on one of the three shifts. Even if the charger had been dragged outby by manual labor or means other than the scoop,
there is no assurance that it would be moved beyond the 150-foot distance
from the gob or that a split of intake.air would have been provided to carry
away the hydrogen gas generated during charging of the batteries. The charger
could have been energized at the location in which it was found by the inspector through use of an extension or jumper cable, or even by moving the power
center. Such use of the charger could have had disastrous results. It is
evident that the violation found by the inspector was serious. Certainly,
the location of the battery charger was not a mere technical violation that
posed no risk to any miner as asserted by Mathies.

96

Unwarrantable Failure
Mathies asserts that it did not unwarrantably violate 30 C.F.R.
75.1002-1 because the section foreman could not reasonably be expected to
know that the existence of a deenergized battery charger within the 150-foot
distance was a violation of the law since it was his understanding that the
law only applied to battery chargers that were in fact being used.
§

Section Foreman Lendvei was aware that the battery charger was not outside the 150-foot zone prescribed by law. That is, he had knowledge of the
condition which was in violation of the standard. His misapprehension of
the law does not excuse his failure, or that of Contestant, to comply with
the standard. The prohibition was clearly spelled out in the regulations.
Exceptions in addition to those which might be set forth in the standard
should not have been presumed.
The record indicates that the battery charger was not moved outby to
a safe location because the operator was mining coal and, although it might
have been moved if production were to be temporarily halted due to a breakdown, the failure to move the battery charger was a deliberate omission on
the part of the operator. Any inconvenience or possible loss of production
that might result from the very short time required to use the scoop to
transport the battery charger and erect a new battery-charging station in
no way serves as an excuse for failure to comply with the mandatory standard.
Contestant also asserted in its brief that:
With respect to the issue of unwarrantability, it is well
settled that a violation of a mandatory safety standard is
negligence per se. Therefore, if the conditions cited in the
above Order are found to constitute a violation of the duty
imposed by the mandatory standard, ordinary negligence can be
conclusively presumed. Negligence per se, however, will not
satisfy the element of unwarrantability otherwise every failure
of the operator to fulfill the duty imposed by the mandatory
safety standard could constitute an unwarrantable failure,
Zeigler Coal Company, 7 IBMA 280, (1977).
An unwarrantable failure to comply [has been defined by
the Interior Board of Mine Operations Appeals as] the failure
of the Operator to abate a condition or practice constituting
a violation of mandatory standard which the Operator knew or
should have known existed Zeigler Coal Company, 7 IBMA 280,
295, IBMA Docket No. 74-37 (1977) (emphasis added).

97

It is important to note that the Board's decision in
Zeigler Coal Company, supra, discussed at length the legislative history and case law applications of the unwarrantability
requirements of Section 104(c) of the 1969 Act. This section
of the law remains basically unchanged under the 1977 Act. !!_/
The violation of a mandatory safety standard is not negligence per se.
There may be a violation of a mandatory safety standard without negligence
on the part of the operator. However, the record in this case has established negligence and an unwarrantable failure to comply well beyond the
definition enunciated in Zeigler. Since the violation existed as alleged
and it was the result of an unwarrantable failure on the part of Mathies
to comply with section 75.1002-1, the order of withdrawal was properly
issued pursuant to section 104(d)(2) of the Act.
ORDER
It is ORDERED that Order No. 0620637 is AFFIRMED and that the abovecaptioned contest of order is hereby DISMISSED.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Michel Nardi, Esq., ~filthies Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
James H. Swain, Esq., Qffice of the Solicitor, U.S. Department of labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900-15th Street, NW., Washington, DC 20005 (Certified Mail)
6/ The 1977 Act adopted the safety and health standards then
existing under the 1969 Act with the proviso ,that "any new
standards [promulgated] in areas covered by existing standards cannot reduce existing levels of protection." Sen.
Rep. No. 95-181, 1977 U.S. Code Cong. and Admm. Nes 3401 at
3411.

98

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

JAN 5

1981

)

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

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-241

)

v.

)
)
)

C.F. & I. STEEL CORPORATION

MSHA CASE NO. 05-00296-03013

)

Respondent.

)

MINE:

Allen

)
~~~~~~~~~~~~~~~~~~

DECISION AND ORDER
APPEARANCES:
Jerry R. Atencio, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner
Phillip Barber, Esq.
Wellborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Respondent
BEFORE:
Judge Jon D. Boltz
STATEMENT OF THE CASE
This proceeding arose through initiation of an enforcement action
brought pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as "the 1977
Act" or "the Act"]. On September 13, 1979, Petitioner, the Secretary of
Labor, Mine Safety and Health Administration (MSHA) (hereinafter "the
Secretary"], filed with the Commission his Proposal for Penalty.
Respondent, CF & I Steel Corporation (hereinafter "CF & I"], duly
contested the proposal for penalty by filing an answer with the Commission
on October 16, 1979. Pursuant to notice, a hearing was held in Pueblo,
Colorado, on June 17, 1980.

99

FINDINGS OF FACT
1. On February 20, 1979, an authorized representative of the
Secretary conducted a spot inspection for liberation of excessive
quantities of methane at CF & I's Allen Mine pursuant to section 103(i)
of_ the Act.
2. The inspector conducted tests and took samples to determine
whether any excessive methane accumulations were present. On the basis of
methane detector readings showing concentrations of 1 to 2% methane, three
vacuum bottle air samples were taken along the conveyor belt line of a
particular section. The samples, upon analysis, subsequently revealed
methane accumulations in amounts of 1.42 to 1.86%.
3. Order of Withdrawal No. 387764 was issued for excessive
concentrations of methane pursuant to the imminent danger provision of the
Act, section 107(a). The order of withdrawal encompassed the entire
section.
4. At the time the imminent danger withdrawal order was issued, and
immediately prior thereto, C F & I was doing all it possibly could do to
rectify the situation as it existed. No production was ongoing. Only
authorized personnel were within the subject area. No power was energized
in the section at the time the order was issued or prior to its
termination. The only work being performed were attempts to establish a
greater volume of ventilation.
5. The accumulation of methane in the conveyor belt line was caused
by a lack of adequate ventilation. The inadequate flow of air was due to
an improperly secured check curtain which regulated the air intake to the
section.
6. Even in this condition of disrepair, sufficient quantities of air
were being delivered to the last open crosscut in the belt line section to
prevent the concentration of methane from increasing to the explosive
range. The explosive range of methane in air is in concentrations of 5 to

15%.
7. The inspector did not mark the "CITATION" box on the order
of withdrawal issued to C F & I. The "ORDER OF WITHDRAWAL" box was

marked with an "X" and "107-a" was indicated as the "TYPE OF ACTION"
undertaken. Under "PART AND SECTION" the inspector listed "75.326"
(30 CFR 75.326).1
ISSUES PRESENTED
The following issues are presented for determination:
1. Whether the conditions which existed in C F & I's Allen
Mine, at the time the order of withdrawal was issued, constituted an
imminent danger?
2. Whether a violation of a mandatory safety and health
standard, capable of supporting a penalty, occurred at C F & I's Allen
Mine?

1/ §75.326 Aircourses and belt haulage entries_.
(STATUTORY PROVISIONS]
In any coal mine opened after March 30, 1970, the entries used as
intake and return air courses shall be separated from.belt haulage
entries, and each operator of such mine shall limit the velocity of the
air coursed through belt haulage entries to the amount necessary to
provide an adequate supply of oxygen in such entries, and to insure
that the air therein shall contain less than 1.0 volume per centum of
methane, and such air shall not be used to ventilate active working
places. Whenever an authorized repr·esentative of the Secretary finds,
in the case of any coal mine opened on or prior to March 30, 1970,
which has been developed with more than two entries, that the
conditions in the entries, other than belt haulage entries, are such as
to permit adequately the coursing of intake or return air through such
entires, (a) the belt haulage entries shall not be used to ventilate,
unless such entries are necessary to ventilate, active working places,
and (b) when the belt haulage entries are ''not necessary to ventilate
the active working places, the operator of such mine shall limit the
velocity of the air coursed through the belt haulage entries to the
amount necessary to provide an adequate supply of oxygen in such
entries, and to insure that the air therein shall contain less than 1.0
volume per centum of methane.

101

DISCUSSION
"Imminent danger" is legislatively defined in section 3(j) of the Act
to mean " . . . the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated [.] 11
30 U.S.C. § 803(j). The term has also received judicial construction.
In Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Op. App., 491
F.2d 277 (7th Cir. 1974), the Court of Appeals construed a virtually
identical definition contained in the Federal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977). In that case, the
Court stated that 11 • . - . a:Il"imminent danger exists when the condition or
practice observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated." Id. at
278. Similarly, the Fourth Circuit construed an ". , . 'imminent danger'
as being a situation in which a reasonable man would estimate that, if
normal operations designed to extract coal in the designated area should
proceed, it is just as probable as not that the feared accident or disaster
would occur ·before elimination of the danger." Freeman Coal Mining Co. v.
Interior Bd. of Mine Op. App., 504 F.2d 741, 745 (4th Cir. 1974).
Both courts affirmed decisions of the former Interior Board or Mine
Operations Appeals which incorporated into the definition of imminent
danger the clause: 11 • • • if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated." Eastern
Associated Coal Corporation, 2 IBMA 128, 136 (1973). Accord, Freeman Coal
Mining Corporation, 2 IBMA 197, 212 (1973). That proviso was not included
in the legislative definition formul.ated by Congress, but all of the courts
which have considered the issue have agreed that the Board legitimately
inserted the clause. The courts' reasoning was that unless miners were to
engage in production, there would be no ongoing exposure to the dangerous
condition. See, McCoy Elkhorn Coal Corporation v. Secretary of Labor, Mine
Safety and Health Administration (MSHA), 2 FMSHRC 1143, 1148 (1980).
The conditions which existed at CF & I's Allen Mine on February 20,
1979, did not constitute an imminent danger under the definitions to which
I have just referred. Prior to issuance of the withdrawal order, C F & I
had voluntarily removed all miners from the area. No production was in
progress. No power was energized in the affected section. The only work
being performed were attempts to establish a greater volume of ventilation,

102

and that work was being performed by those persons who would have been
authorized to be in the area had a section 107(a) order of withdrawal been
in effect. 2
There was no evidence of an intent to return miners to production
until the situation had been rectified. Had such an intent been
demonstrated by C F & I, my conclusion would be different. In issuing the
order of withdrawal, I believe that the inspector was properly motivated in
his concern that miners not be returned to the affected area until the
condition had been corrected. However, at the moment that the order of
withdrawal was issued, no imminent danger then existed. Therefore, I find
that the order is invalid and should be vacated.
Even after an imminent danger order of withdrawal has been vacated,
the violation alleged therein may still be the subject of a civil penalty
proceeding. Secretary of Labor, Mine Safety and Health Administration
(MSHA) v. Van Mulvehill Coal Co., Inc., 2 FMSHRC 283, 284 (1980). "That
allegation, unless itself properly vacated, survives a vacation of the
order it is contained in, and, if proven, the assessment of a penalty under
section 110 is required. 11 Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Island Creek Coal Company, 2 FMSHRC 279, 280
(1980). I must, therefore, determine whether a violation of a mandatory
safety and health standard, capable of supporting a penalty, occurred at
C F & I's Allen Mine.

2/

Section 104(c) of the Act reads:

"(c) The following persons shall not be required to be withdrawn
from, or prohibited from entering, any area of the coal or other mine
subject to an order issued under this section:
"(1) any person whose presence in such area is necessary, in
the judgment of the operator or an authorized representative of the
Secretary, to eliminate the condition described in the order;
(2) any public official whose official duties require him to
enter such area;
11

"(3) any representative of the miners in such mine who is, in
the judgment of the operator or an authorized representative of
the Secretary, qualified to make such mine examinations or who is
accompanied by such a person and whose presence in such area is
necessary for the investigation of the conditions described in the
order; and

"(4) any consultant to any of the foregoing."

103

Under the above-mentioned precedents, whether Order of Withdrawal
No. 387764 was properly issued pursuant to section 107(a) of the Act is
not relevant to the asses~ment of a penalty for any proven violations cited
in that order. The underlying allegation contained in the order provides a
sufficient basis for any potential penalty assessment. It follows that
whether the 107(a) order contained a legally sufficient 104(a) citation is
likewise irrelevant to the penalty assessment determination. Therefore, it
is not necessary that I rule on the significance of the fact that the
"CITATION" box on the order was not marked and how that fact affects the
sufficiency of the order as a section 104(a) citation.
The mandatory safety and health standard allegedly violated was
30 CFR 75.326 (see footnote, page 3). The Allen Mine was opened prior to
March 30, 1970, therefore only the second portion of section .326 is
applicable. Clause (b) of that section contains a req.uired standard with
respect to methane accumulations. Clause (a) contains no similar
provision. In order for the methane standard contained in ·clause (b) to be
applicable, it must be demonstrated that the belt haulage entries were not
necessary to ventilate the active working plac~s. No evidence is contained
in the record regarding the necessity vel non of utilizing the belt haulage
entries for ventilation of active working places. Therefore, I have no
basis upon which to determine whether clause (a) or clause (b) is relevant.
Consequently, without evidence establishing the relevancy of the cited
section, I cannot sustain the violation of 30 CFR 75.326 alleged in Order
of Withdrawal No. 387764.
Another factor of importance in my decision is the fact that the
inspector who issued the 107(a) withdrawal order did not himself believe
that C F & I had violated 30 CFR 75.326. On redirect examination, in
response to a question regarding his opinion as to whether or not there was
a violation, the inspector stated:
"I felt that in this instance, since the company had
recognized the condition and were taking steps to
rectify it, I didn't feel personally there was a
vi o 1at ion of . 3 2 6 . " (Tr . 4 7) .
This admission by the inspector provides further grounds for my refusal to
sustain the violation of 30 CFR 75.326 alleged in Order of Withdrawal
No. 387764.
CONCLUSIONS OF LAW
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and subject matter of th.is proceeding.
2. The conditions which existed at C F & I's Allen Mine on
February 20, 1979, did not constitute an irmninent danger at the moment that
Order of Withdrawal No. 387764 was issued.

104

3.

The order was invalid and should be vacated.

4. The alleged violation of 30 CFR 75.326 contained in Order of
Withdrawal No. 387764 was not proven by a preponderance of the evidence.
5.

The allegation was not sustained and should be vacated.
ORDER

Based upon the foregoing findings of fact and conclusions of law,
Order of Withdrawal No. 387764 and the violation alleged therein are hereby
VACATED. This matter is hereby DISMISSED WITH PREJUDICE .

.,..-·

)..

'

?

)g.t.'~i~-·~=---·_·Administrative'-f:aw Judge

DISTRIBUTION:
Jerry R. Atencio, Esq.
/ Office of the Solicitor
United States Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver, Colorado 80294
Phillip Barber, Esq,
Wellborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290

105

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN

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

s ' :.~·,
Civil Penalty Proceeding

Petitioner

Docket No. VA 80-77
A.O. No. 44-02690-03017 V

v.
Jewell 18, Lower Jewell Mine
JEWELL RIDGE COAL CORPORATION,
Respondent
DECISION
Appearances:

Catherine M. Oliver, Esq., Office of the Solicitor, U.S
Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Gary W. Callahan, Esq., Lebanon, Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., the "Act," alleging one violation of a safety regulation. The generai issue is whether the Jewell Ridge-Coal Corporation
(Jewell Ridge) has violated the cited regulation and, if so, the appropriate
civil penalty to be paid for the violation. An evidentiary hearing was held
in Abington, Virginia, on November 5, 1980.
The citation at issue (No. 696012) charges one violation of the standard
at 30 C.F.R. § 75.400. That standard requires that coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein. The citation here states
that Jewell Ridge permitted dry, loose coal and coal dust to accumulate in
the No. 1 return entry on the No. 1 section. The size of the "accumulation",
qescribed as approximately 38 feet long, 4 feet high and 20 feet wide, is not
disputed. Moreover, from the admissions of Respondent's own witnesses
including the general mine foreman Ralph Miller, it is clear that the cited
"accumulation" was intentionally created as part of a cleanup process on the
day shift 5 days before that condition was cited.
Jewell Ridge first seems to claim that MSHA did not prove that the
"accumulation" consisted of combustible materials. MSHA inspector Harold
Burnett testified however, based on his visual observations, that the "accumulatio~' indeed consisted of loose coal and coal dust of such a nature as to

106

be combustible. The particles ranged in size from dust to the size of his
fist, were black and dry and contained no perceptible inert material such as
rock, stone, cement, or rock dust. This testimony is not directly contradicted. I find Burnett's visual observations of the combustible nature of
the "accumulation" to be sufficient to support the violation cited. Coal
Processing Corporation, 2 IBMA 336 at pages 345-346. Under the circumstances
there is no need to determine the weight, if any, to be given to the analysis
of the coal samples collected by Inspector Burnett and the laboratory test
results purportedly obtained therefrom.
Jewell Ridge next seems to contend that extenuating circumstances
existed to justify the presence of the cited "accumulation" for a period of
more than 4 days. Mine foreman Miller explained that he directed section
foreman Blankenship to clean up the No. 1 entry by having the excess loose
coal scooped up into the face during the day shift on August 16th in anticipation that the continuous miner would, in the course of the
cycle,
later clean it up. For reasons unexplained however the "accumulation" was
not cleaned up during that day shift nor on the following night shift on
August 16th. Miller explained that the pile was not cleaned up on the 17th
because the mine was idle "for lack of railroad cars or something" and that
it was not cleaned up on the 18th or 19th because that was a weekend during
which the miners did not ordinarily work. He offered no reason why it was
not cleaned up before 1 p.m. on Monday the 20th but explained that at that
time bad roof conditions were discovered in the haulway which then provided
the only access to the "accumulation". Crib blocks used to support that roof
thereafter obstructed passage of equipment needed for the cleanup. Miller
argued that until the evening shift of August 20th when the No. 1 entry was
cut through from another direction it was therefore impossible to remove that
"accumulation". Miller admitted however that although the "accumulation" was
reported in the preshift examination book before the day shift began on the
21st no cleanup work was performed until the condition was cited by Inspector
Burnett at 10:15 that morning.
Miller's various excuses for his failure to have the "accumulation"
cleaned up for more than 4 days do not provide an acceptable defense to the
cited violation. The mere existence of an "accumulation" of combustibles is
support a violation of 30 C.F.R. § 75.400.
1 FMSHRC 1954 (December 1979);
2806 (October 1980). Miller's
contrary, support a finding of gross negligence for his failure to
have the accumulation cleaned up for the several days before the roof deteriorated. The foreman's gross negligence is imputed to the operator. Under the
circumstances I have no difficulty in concluding that the vast pile of loose
coal and coal dust found by Inspector Burnett in this case constituted an
"accumulation" within the meaning of the cited standard, Old Ben Coal Company,
1 FMSHRC 1954, supra, and that the loose coal and coal dust constituted combustible materials which could cause or propagate a fire or explosion if an
ignition source were present. Old Ben Coal Company, 2 FMSHRC 2806,

107

In determining the amount of penalty that is appropriate in this case
I have already determined that gross negligence existed. Evidence that there
were only insignificant amounts of methane present in the section of the mine
cited, that no ignition sources were discovered by Inspector Burnett as a
result of his inspection that day and testimony from Burnett that the likelihood of an explosion or fire under the circumstances was "improbable" do mitigate the gravity of the hazard. I observe however, that even though no
ignition source may have been discovered by Burnett during his inspection,
there is always the risk of such an ignition source developing at any time.
In this regar~ Burnett testified that it was not uncommon for electric trailing cables to become damaged from moving equipment and for the creation of
sparks from ripper heads striking rock. The hazard from fire or explosion
was also increased here by the fact that oil and explo~d.ves were stored
nearby.
While the cited accumulation was indeed cleaned up within the time specified for abatement it is apparent that under the circumstances Jewell Ridge
had little choice but to clean up the accumulation if it wished to continue
in operation. It has been stipulated that any penalty imposed in this case
would not affect the operator's ability to continue in business. The specific mine at issue is medium in size with production of slightly over 96,000
tons in a recent year. The operator is large in size with a production of
over 6 million tons in a recent year. It is difficult to determine the precise history of violations from the computer print-out offered by MSHA in
evidence so that I have neither increased nor decreased the penalty I am
imposing in this case as a result. Under all the circumstances I conclude
that a penalty of $1,500 is appropriate.
ORDER
WHEREFORE, the Jewell Ridge Coal Corporat
of $1,500 within 30 days of this order.

is

o pay a penalty

·Distribution:
of

Catherine M. Oliver, Esq., Office
Labor, 3535 Market Street, Room
(Certified Mail)
Gary w. Callahan, Esq., Assistant General Counsel, Jewell Ridge Coal
Corporation, Lebanon, VA 24266 (Certified Mail)

108

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR

5203 LEESBU~ PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAF.ETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. CENT 80-276-M
A/O No. 41-01330-05003

v.

O'Daniel Pit and Plant
PRICE CONSTRUCTION, INC.,
Respondent
DECISION
Appearances:

E. Justin Pennington, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for Petitioner;
Bob Price, Vice President, Price Construction, Inc.,
Big~Spring, Texas, for the Respondent.

Before:

Judge Stewart

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (MSHA), under section llO(a) 1/ of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act),
to assess civil penalties against Price Construction, Inc. (hereinafter
Price) for violations of mandatory safety standards. A hearing was held in

1/

Sections llO(i), and (k) of the Act provide:
"(i) The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties under this Act,
the Secretary may rely upon a summary review of the information available to
him and shall not be required to make findings of fact concerning the above
factors.
~
11
(k) No proposed penalty which has been contested before the Commission
under section 105(a) shall be compromised, mitigated, or settled except with
the approval of the Commission. No penalty assessment which has become a
final order of the Commission shall be compromised, mitigated, or settled
except with the approval of the court 11 •

109

the 118th Judicial District Courtroom, County Courthouse, Big Spring, Texas,
on November 7, 1980. Two witnesses were called by MSHA and one witness was
called by Price. The parties entered the following stipulations on the record:
The parties have stipulated to the jurisdiction of the
Review Commission.
We have also stipulated as to the coverage of the Act as
related to Price Construction, Incorporated, in that Price
Construction operates a mine which has products entering into
commerce or affecting commerce.
The parties have also stipulated to the company's history
of previous violations, and we have agreed that the company has
a good history.
The parties have stipulated to the size of the business.
The company, Price Construction, I~corporated, the Respondent,
is regarded as a small company. The mine involved, the O'Daniel
Pit and Plant, is regarded as a medium sized pit.
We have also stipulated to the effect of this particular
penalty proceeding on the ability of the operator to continue
in business and we have agreed that this will have little
or no effect on the operator's ~bility to continue in business.
The Secretary has marked Petitioner's Exhibit Number 1,
a data printout which reflects the assessed violation history
of Price Construction Company and the O'Daniel Pit and Plant,
and the parties have stipulated that the printout accurately
reflects the history of the company.
With respect to the size of the mine, the parties have
stipulated that * * * the size of the company is about
95,000 manhours per year. The size of O'Daniel Pit and Plant
is approximately 43,000 manhours per year.·
The decision rendered orally from the bench at the hearing, following
argument by the parties on the fact of violation and the statutory criteria,
is reduced to writing below as required by the Rules of Procedure of the
Federal Mine Safety and Health Review Commission, 30 C.F.R. § 2700.65.
In an off-the-record conference, the parties have
waived the submission of proposed findings of fact and
conclusions of law and supporting briefs.
Pursuant to the parties' stipulation to the accuracy of
an exhibit showing that the Price's history is good with
13 paid violations, I accordingly find that the operator's
history of previous violations is good.

110

The parties have stipulated that the Price Construction
Company is a small company with approximately 95,000 manhours
of work per year and that the O'Daniel Pit is a medium sized
operation with approximately 43,000 manhours per year. There
are twelve employees at the O'Daniel Pit. I therefore find
that Price Construction Company is a small company, and that
the O'Daniel Pit is a medium sized operation.
Pursuant to the parties' stipulation, I also find that
the assessed penalty in this case will have no effect on the
operator's ability to continue in business.
Citation Number 160687 was issued on February 6, 1980 by
Federal Mine Safety Inspector, Kenneth Page, in which he noted
the condition or practice to be as follows: "Upon arriving
at the primary hopper area, an employee was observed standing
atop the grizzly breaking a boulder with a twelve pound sledge
hammer without the aid of eye protection. The possibility of
flying foreign matter striking employee in the eyes and causing injury existed."
The citation was issued at 0800, and the operator was
given until 0815 in order to abate the citation. The citation was terminated by the inspector at 0815 with the action
to terminate noted as follows: "employee was instructed to
wear eye protectibn and his goggles were supplied and worn
during this procedure."
The citation· cited a violation of 30 CFR 56.15-4 which
reads as follows: "Mandatory. All persons shall wear
safety glasses, goggles or face shields, or other suitable
protective devices when in or around an area of a mine or
plant where a hazard exists which could cause injury to
unprotected eyes."
The evidence establishes that there were two persons
working on top of a grizzly, a.grate or a sieve-type protection over the hopper opening where one of the employees Mr. Leslie Coleman - was breaking a boulder by striking it
with a sledge hammer. Mr. Coleman was not wearing safety
type glasses, goggles, face shield or other suitable
protective device, although the other person working on the
grizzly was doing so.
In this area on the grizzly where boulders are broken
by the use of a sledge hammer, a hazard exists which could
cause injury to unprotested eyes. This is an operation
normally carried on on top of the grizzly since out of a
truckload of material there may be four or five boulders so

111

large that they will not fall through the opening or openings of the grizzly. These must be broken into smaller
pieces, and the normal means of doing so is by striking
them with a sledge hammer.
Mr. Coleman had been the object of a prior citation
for failure to wear eye protection when working on the
grizzly. After this time he had quit the employment of
Price Construction Company but had subsequently come back
to work for that company. He had been cautioned by Mr. Ed
Morris, the plant foreman at the O'Daniel Pit on several
occasions for failure to wear his glasses or other protective devices. Normally in the past when he failed to wear
protective devices, his goggles were in the control tower,
a short distance from the grizzly.

On the occasion when the citation was issued on
February 6, 1980, Mr. Coleman had left his goggles in the
lab area whi1:h is near the plant office, about 100 yards
from the grizzly. In order to abate the violation, someone
in the employ of Price Construction Company had to go and
obtain goggles for Mr. Coleman. That took in the nature
of fifteen .minutes.
There has been testimony from the safety officer,.
Mr. Jim Hill, who assumed that positioµ in March of 1980
after citation Number 160687 had been issued.
He states
that there is now a safety program under which he recalls
only one instance where a man was working on a feeder without
eye protection and he was not on the grizzly breaking rocks.
When Mr. Hill assumed his duties as safety officer, he found
a set of safety instructions promulga~ed by Price Construction company for O'Daniel Pit, but the particular operation
of breaking rock on top of this grizzly was not included.
Priqe Construction Company should have been aware of
the propensities of Mr. Colel)lan' conce.rning. his failure
to wear safety goggles, and further, mor.e strenvous efforts
should have been made in order to insure t4at safety protection was.worn by him when breaking rocks on tpe grizzly.
Although some efforts have been made by Price Construction
Company in an effort to prevent violations of this type,
I find that a requirement to wear eye protection when working
on the grizzly in the process of breaking rocks was not
effectively enforced.
The failure of Mr. Coleman to wear his safety eye
protection was not controverted. Since Respondent did not
take adequate action to insure the·use of such equipment
through an effectively enforced requirement I find that
Price Construction Company is in violation of 30 CFR 56.15-4.

112

The evidence establishes that as Mr. Coleman was breaking
the boulder on· top of the grizzly by striking it with a twelve
pound sledge hammer. Small pieces of rock were flying from
the boulder for a considerable distance. It has been established that this distance and the type of chips from the
boulder were sufficient to cause an eye injury. I therefore
have found it is probable that the violation would result in
serious injury.
Inspector Page has testified that the operation of
O'Daniel Pit as compared with the operation of the pits of
other similar companies is excellent. Nevertheless, our
attention must be directed on this occasion to the particular
citation that was issued on February 6th. The evidence establishes that the operator should have known of the violation
at the time that it was observed by the inspector. Mr. Coleman
had a history of failing to wear eye protective devices, and
the operator was aware of that history. He reported to work
at about 7:00 a.m. that morni~g, and the violation was observed
at 8:00 a.m. Although the main office was a considerable
distance from the hopper, the operator could have prevented
this violation by an effectively enforced program.
Although it is possible, as Price Construction Company
contends, that the violation would have been observed and
corrected within an hour after the time of the citation at
8:00 a.m., the evidence nevertheless shows that the violation
was observed at 8:00 a.m. by the inspector and that there was
nothing in the operator's safety program to prevent that
particular violation at that specific time. Breaking boulders
with the consequent flying about of rock particles is a normal
part of the operation at the hopper. Since Price Construction
Company failed to prevent the practice observed by the inspector, I find that the operator was negligent.
As to good faith, the inspector has testified that the
abatement efforts by Price Construction Company were
excellent. I therefore find that the respondent demonstrated
good faith in attempting to achieve rapid compliance after
notification of the violation.
In consideration of the statutory criteria prescribed
by the Act, I find that the appropriate penalty in this case
is $60.00. Respondent Price Construction Company is ordered
to pay Petitioner, MSHA, the srnn of $60.00 within thirty
days of the date of this decision.
ORDER
The decision announced from the bench in the above-captioned proceeding
is AFFIRMED.

113

Respondent is ORDERED to pay 2/ the amount of $60.00 within 30 days
of the date of this order if it has not already done so.
·

//"'

I~

...

~0~~! {~ ,_[i;/a:J
Forrest E. Stewart
Administrative Law Judge
Distribution:
E. Justin Pennington, Esq., Office of the Solicito~, U.S. Department
of Labor, 555 Griffin Square Building, Suite soi;· Dallas, TX 75202
(Certified Mail)
Bob Price, Vice-President, Price Construction, Inc., P.O. Box 1029,
Big Spring, TX 79720 (Certified Mail)
2/

Section 110( j) of the Act provides as follows:
11
(j) Civil penalties owed under this Act shall be paid to the Secretary
for deposit into the Treasury of the United States and shall accrue to the
United States and may be recovered in a civil action in the name of the
United States brought'in the United States district court for the district
where the violation occurred or where the operator has its principal office.
Interest at the rate of 8 percent per annum shall be charged against a person
on any final order of the Commission, or the court. Interest shall begin to
accrue 30 days after the issuance of such order 11 •

114

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

JAN
Application for Review

SHARP MOUNTAIN COAL COMPANY;
D AND R COAL COMPANY, a partnership;
and BOBBY DONOFRIO,

Docket No. PENN 80-218-R

~Applicant

Orchard Vein Drift Mine

v.

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

Lee Solomon, Esq., Philadelphia, Pennsylvania, for Applicant;
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent.

Before:

Judge Jacles A. Lsurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by Bobby Donofrio in his capacity as partner
and owner of D & R Coal Company and Sharp Mountain Coal Company (hereinafter
Applicant) under section 107(e) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 817(e), (hereinafter the Act) to vacate an order of withdrawal issued by a Federal mine inspector employed by the Mine Safety and
Health Administration (hereinafter MSHA) pursuant to section 107(a) of the
Act. The parties filed prehearing statements and posthearing briefs. The
matter was heard in Philadelphia, Pennsylvania on October 23, 1980.
The order in question was issued on April 8, 1980. This proceeding was
filed on May S, 1980. At no time prior to the date of the hearing did Applicant request that this matter be expedited pursuant to 29 C.F.R. § 2700.52.
However, at the hearing, Applicant moved to vacate the order of withdrawal
for failure to hold a timely hearing. The motion was denied because Applicant failed to move for an expedited hearing pursuant to the Commission's
Rules of Procedure.
The controversy in this matter concerns Applicant's use of nonpermissible fuses and blasting caps in its underground anthracite coal mine. MSHA's
contention that such use constitutes an imminent danger is disputed by
Applicant.

115

ISSUE
Whether the order of withdrawal due to imminent danger should be
affirmed, vacated or modified.
APPLICABLE LAW
Section 107(a) of the Act, 30 U.S.C. § 817(a), provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of
the area of such mine throughout which the danger exists,
and issue an order requiring the operator of such mine to
cause all persons, except those referred to in section 104(c)
to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer exist.
The issuance of an order under this subsection shall not
preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.
Section 3(j) of the Act, 30 U.S.C. § 802(j), states: "'imminent danger'
means the existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated."
30 C.F.R. § 75.1303 provides as follows:
Except as provided in this section, in all underground
areas of a coal mine only permissible explosives, electric
detonators of proper strength, and permissible blasting
devices shall be used and all explosives and blasting
devices shall be used in a permissible manner. Permissible
explosives shall be fired only with permissible shot firing
units.
30 C.F.R. § 15.19 provides in pertinent part as follows:
An explosive certified as permissible under this part
is permissible in use only so long as it meets the following
requirements: • • • (d) Is initiated with a copper or copperbased alloy shell, commercial electric detonator (not cap
and fuse) of not less than No. 6 strength.

STIPULATIONS
The parties stipulated the following:

116

1.

Sharp Mountain Coal Company is subject to the jurisdiction of the

2.

Orchard Vein Drift is a mine within the meaning of the Act.

3.

Order No. 225365 was properly served upon Applicant.

4.

The Applicant is a small operator.

5.

There is no prior history of violations at this mine.

Act.

FINDINGS OF FACT
I find from the preponderance of the evidence of record the facts as
follows:
1. Orchard Vein Drift Mine, an.. underground anthracite coal mine, is
owned and operated. by Applicant.

2. Michael C. Scheib, who issued the order in controversy, was an
inspector employed by MSHA and a duly authorized representative of the
Secretary OD Labor at all times pertinent herein.
3. For approximately 2 years prior to the inspection in controversy,
this mine was not inspected by MSHA because of the operator's denial of entry
to MSHA inspectors and its unsuccessful litigation to challenge MSHA's
authority to inspect this mine.
4. This mine employs no miners and the only persons who work in the
mine are the named partners: Bobby Donofrio and Robert Rand. Approximately
50 to 60 tons of coal per week are extracted when the mine is in operation.
5. On March 26, 28, and 31., 1980, Inspector Scheib, accompanied by MSHA
Inspector James E. Schoffstall, conducted a regular inspection of this mine.
On March 28, 1980, the inspectors found nonpermissible fuses and blasting
caps in the working area of this mine.
6. No order br citation was issued on March 28, 1980, concerning the
use of nonpermiss~ble fuses and blasting caps.
7. On April 8, 1980, the inspectors returned to the mine and informed
Bobby Donofrio that an order of withdrawal due to imminent danger would be
issued unless he removed all nonpermissible fuses and blasting caps from the
mine.
8. The fuses and blasting caps were not removed from the mine; thereupon, the inspectors issued Order No. 225365 which closed the mine due to an
alleged imminent danger. The order further alleged a violation 30 C.F.R.
§ 75.1303.

117

9.

The order has not been terminated and the mine remains closed·.

10. At all,times relevant herein, Applicant used nonpermissible fuses
and blasting caps in the mine.
11. No explosive gas was found in the mine during any of the 4 days
in which the inspectors were present, and, hence, the possibility of a
me·thane explosion was unlikely.
12. The possibility that either of the two miners working in this mine
would be exposed to death or serious physical harm due to a defective fuse,
a stumble and fall, or entering the blasting area without knowledge of the
impending blast was unlikely.
DISCUSSION
The order in controversy was issued after the first inspection of this
mine following protracted litigation between the parties concerning MSHA's
authority to inspect the mine. The undisputed evidence shows that the
regular inspection of the mine was conducted on March 26, 28, and 31, 1980.
Inspector Schoffstall, testified that he and Inspector Scheib found the
nonpermissible fuses and blasting caps in the working area of the mine on
March 28. No order or citation was issued at that time. When the inspectors returned to the mine 11 days later on April 8, they informed Bobby
Donofrio that no order would be issued if he voluntarily removed the nonpermissible fuses and blasting caps from the mine. He declined to remove
them and this order was issued.
The fact that the order in question was issued 11 days after the condition was discovered by the inspectors is strong evidence that the danger :was
not imminent. The inspectors agree that the condition was no more dangerous
on April 8, than it had been on March 28. Inspector Schoffstall testified
that although he believed that the use of nonpermissible fuses and blasting
caps in the mine constituted an imminent danger on March 28, no order was
issued because MSHA wanted "to keep a very workable situation with the operators due to the litigation that he had been going through." Hence, MSHA
followed the unusual practice of giving the operator the option to remove
the nonpermissible fuses and blasting caps from the mine and thereby avoid
a citation or order. Suffice it to say, such conduct by MSHA beties its
contention here that an imminent danger existed at the time the order was
issued. The definition of imminent danger in section 3(j) of the Act is
11
any condition or practice in a coal or other mine which could reasonably
be expected to cause death or serious physical harm before such condition
or practice can be abated." [Emphasis supplied.] It should be obvious to
MSHA that if the condition or practice in question is such that the operator
is given the option to abate it without any sanction from MSHA, the condition
or practice could not reasonably be expected to ·cause death or serious
physical harm before it can be abated.

118

The evidence establishes that an open flame is required to ignite the
fuses which lead to the blasting caps in question. One of the reasons given
by Inspector Scheib for the issuance of the immiment danger order was that
the open flame could ignite methane and cause a premature explosion. However, the inspector conceded that no methane was found in the mine on any of
the inspection days in question. While the possibility of a methane accumulation is always present in an underground mine, the total absence of methane
in this mine at the time the order was issued requires a finding that any
such methane accumulation in the explosive range is only speculative and
remote. The inspector's assertions that the use of the fuse and cap method
of blasting could cause death or serious physical harm due to a defective
fuse, a stumble or fall, or entering the blast area without knowledge of the
impending blast are also speculative and remote. In fact, Inspector Scheib
admitted that cap and fuse blasting can be done in a safe manner. None of
the inspectors testified that the particular method of cap and fuse blasting
employed by Bobby Donofrio was unsafe. Their testimony that such a procedure
is inherently dangerous is contradicted by Inspector Scheib's admission that
such a procedure can be conducted in a safe manner. In conclusion, MSHA has
failed to establish the requisite elements of an imminent danger.
In the typical case where an order of withdrawal due to imminent danger
is issued, the judgment of the inspector acting under emergency or nearemergency conditions is entitled to great weight in a review proceeding concerning the validity of that order. See Old Ben Coal Company v. IBMA,
523 F.Zd 25, 31 (7th-Cir. 1975). This rati~nale is inapplicable to matters
like the instant one where the inspector waits for a period of 11 days after
discovery of an alleged imminent danger before issuing the order. However,
MSHA argues that the instant case is analogous to Itmann Coal Company, Docket
No. WEVA 80-7-R, June 26, 1980, where I upheld an imminent danger order of
withdrawal. In Itmann Coal Company, supra, the facts were that the MSHA
inspector observed a miner travelling under unsupported roof and issued an
order of withdrawal. While the miner in question was no longer under the
unsupported roof at the time the order was issued, the order was affirmed
because the evidence established that it was the practice of miners to travel
under this unsupported roof and that the practice could reasonably be
expected to cause death or serious physical harm before it could be abated.
The order in that case was issued moments after the occurrence. Itmann Coal
Company, supra, is distinguishable from the instant case because here MSHA
has failed to e.stablish that the danger was imminent. This is so because of
the passage of 11 days from the time the condition or practice was discovered
and the time the order was issued and the fact that MSHA gave the Applicant
the option of abating the violation without any sanction.
The foregoing should not be construed as an approval of fuse and cap
blasting in underground mines or a determination that such a practice can not
constitute an imminent danger under the Act. Fuse and cap blasting is prohibited in underground coal mines· persuant to 30 C.F.R. § 75.1303. Such
blasting can be prevented by MSHA's use of citations, orders, and civil penalties. However, under the peculiar facts of this case, I find that MSHA
has failed to establish that an imminent danger existed at the time the order
was issued.

119

Nevertheless; Applicant admittedly used fuse and cap blasting in this
mine in contravention of 30 C.F.R § 75.1303. The proper procedure for MSHA
to follow in this matter, where the inspectors discovered the violation
11 days before taking action on it, was to issue a citation pursuant to
section 104(a) and set a reasonable termination due date. If the citation
was not abated within the time allotted, the mine could have been closed by
an order pursuant to section 104(b) for failure to abate a violation. Under
the facts of the instant case, the determination to issue an imminent danger
order of withdrawal was improper. Therefore, the application for review is
granted in part and the document issued as Order No. 225365 is modified to a
citation pursuant to section 104(a) of the Act, and that citation is affirmed.
The above document is further modified to show that the tennination due date
shall be 8 a.m. on the 4lst day following the issuance of this decision.
In the application for review, the request for relief included a claim
for an award of attorney's fees and costs. Applicant appears to have abandoned that request since it was not mentioned in its closing argument or
brief. In any event, the Act does not provide for such an award in these
proceedings but does allow for such relief in actions for discrimination or
discharge pursuant to section lOS(c) of the Act. Since there is no authority
for the award of attorney's fees and costs in this action, that request is
denied.
In MSHA's posthearing brief, it requests the assessment of a civil penalty in the amount of $2,000 although its assessment office has proposed
a civil penalty of only $275. MSHA has not filed a civil penalty proceeding
with the Commission on this matter. The operator has not consented to the
assessment of a civil penalty in this proceeding. I find that the operator
has the right to pursue its other administrative remedies in this case and
I will not assess a civil penalty at this time. However, the parties are
directed to notify me promptly of the filing of any civil penalty proceeding
arising out of this matter.
CONCLUSIONS OF LAW
1. I have jurisdiction over this ·matter pursuant.to section 107 of
the Act.
2. The inspector improperly issued the subject order of withdrawal
pursuant to section 107(a) of the Act because no imminent danger existed in
that there was no reasonable expectation that the use of nonpermissible fuses
and blasting caps could cause death or serious physical harm before such
condition or practice could be abated.
3. The use of nonpermissible fuses and blasting caps in the mine was a
violation of 30 C.F.R. § 75.1303.
4. The application for review is granted in part and the order in question is modified as follows: (A) The order of withdrawal due to imminent
danger pursuant to section 107(a) of the Act is modified to a citation pursuant to section 104(a) of the Act alleging a violation of the statutory

120

provision contained in 30 C.F.R. § 75.1303; and (B) the termination due date
on the document in question is modified to be 8 a.m. on the 4lst day following the date this decision is issued.
5. Applicant is not entitled to an award of attorney's fees or reimbursement for other costs incurred in connection with this proceeding.
ORDER
THEREFORE, IT IS ORDERED that the application for review is GRANTED in
part in that the subject withdrawal order is MODIFIED to a citation pursuant
to section 104(a) of the Act and said citation is AFFIRMED.
IT IS FURTHER ORDERED that the tennination due date on the above
citation shall be MODIFIED to 8 a.m., on the 4lst day following the issuance
of this decision.
IT IS FURTHER ORDERED that Applicant's request for an award of attorney's
fees and costs is DENIED.

Ja~er A. Laurenson, Judge

(,)

Distribution by Certified Mail:

Lee Solomon, Esq., 872 Public Ledger Building, Independence Square,
Philadelphia, PA 19106
Barbara K. Kaufmann, Esq., U.S. Department of Labor, Office of the
Solicitor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104

121

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
l\~,l
J 1-..1
y

C ',~c:J1

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

Civil Penalty Proceeding
Docket No. CENT 80-324-M
A/O No. 41-02534-05003

Petitioner
v.

Mound Plant
BELTON SAND & GRAVEL COMPANY, INC.,
Respondent
DECISION
Appearances:

Max A. Wernick, Esq., Millie Brooks, Legal Assistant,
Office of the Solicitor, U.S. Department of Labor,
_Dallas, Texas, for Petitioner;
Mr. Richard Prater, President, Belton Sand & Gravel
Company, Inc., Temple, Texas, for Respondent.

Before:

Judge Stewart

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (MSHA), under section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act), l/ to assess
civil penalties against Belton Sand & Gravel Company, Inc. (hereinafter,
Belton). A hearing was held on November 26; 1980, in Dallas, Texas. Each of
the parties called one witness and entered into the following stipulations on
the record:
1/

Sections llO(i) and (k) of the Act provide:
"(i) The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties under this Act,
the Secretary may rely upon a summary review of the information available to
him and shall not be required to make findings of fact concerning the above
factors.
"(k) No proposed penalty whieh ii.as been contested before the Commission
under section lOS(a) shall be compromised, mitigated, or settled except with
the approval of the Commission. No penalty assessment which has become a
final order of the Commission shall be compromised, mitigated, or settled
except with the approval of the court."

122

We have reached an agreement as to the company's history
of previous violations and we would indicate at this time
that it is good. They have been inspected on an average of
three times per year and they received one citation in 1978
and one citation in 1979, both of which were uncontested and
immediately abated.
We would also indicate that this is a sJall operator in
that their total tonnage at the Mound Plant is between
10,000 and 12,000 tons per month and that their monthly manhours average around 2,000 per month.
With regard to the effect of these citations on the
operator's ability to continue in business we·would indicate, and it is stipulated, that Belton Sand & Gravel
Company, Inc., do an annual dollar volume of business in
the area of $800,000 and a million dollars a year. The
effect of the proposed penalty would have no appreciable
effect on the operator's ability to continue in business.
The decision rendered orally from the bench at the hearing is reduced to
writing below as required by the Rules of Procedure of the Federal Mine Safety
and Health Review Commission, 30 C.F.R. § 2700.65:
Pursuant to stipulation by the parties, I find that the
operator's history of previous violation is good. He has
been inspected approximately three times per year and has
had only one citation in 1978 and one citation in 1979.
Both of these citations were immediately abated.
As to the appropriateness of the penalty to the size of
the operator I find that Belton Sand & Gravel Company, Inc.,
the Respondent, is a small operator, producing between 10,000
and 12,000 tons per month with an average of 2,000 man-hours
per month.
I also find, pursuant to the stipulation by the parties,
that the penalty will not affect the operator's ability to
continue in business.
Order of Withdrawal No. 154781 was issued by MSHA inspector Stephen R. Kirk on March 19, 1980. The condition or practice noted on the order of withdrawal was: "The Euclid haul
unit No. 1 did not have adequate brakes. At a slow speed on
a flat, level surface, the unit made no attempt to stop when
the brakes were applied • 11 This order of withdrawal cited a
violation of 30 C.F.R. § 56.9-3.
Order of Withdrawal No. 154782 was also issued by MSHA
inspector Stephen R. Kirk on March 19, 1980. The condition

123

or practice noted on this order was: "The Euclid Haul unit
No. 2 did not have adequate brakes. At a slow speed on a
flat, level surface, the haul unit made no attempt to stop
when the brakes were applied. This order also cited a violation of 30 C.F.R. § 56.9-3.
30 C.F.R. § 56.9-3 reads as follows: "Mandatory.
Powered mobile equipment shall be provided with adequate
brakes."
When Inspector Kirk arrived at the Mound-Plant of the
Belton Sand & Gravel Company, Inc., on March 3, 1980, he
tested the brakes of the two Euclid haul units in service
at the pit and found that they were inadequate and did not
stop the units at a slow speed when the brakes were applied.
The No. 1 haul unit has been identified as the bright green
Euclid haul unit in service, and the No. 2 haul unit has
been identified as the pale green or yellow-green Euclid
haul unit in service. Since the brakes of the two units
were inoperative, it is clear that a violation did occur on
each unit, and Respondent has acknowledged that there was a
violation.
As to the gravity of the violations in each instance,
the testimony indicates that the only method of stopping the
units would be to gear the engine down and slow it through
the low gearing to a very slow speed, or to possibly-stall
the unit by dumping the load. While operating in the sand
near the pit, the units operate at a very slow speed of
approximately 1 or 1-1/2 miles per hour. When the units
are operating out on the hard surface, they may operate
at speeds from 10 to 15 miles per hour. Although there are
means of slowing these vehicles other than by the use of
brakes, I find that the stopping ability was critically
impaired by the lack of adequate brakes on the two units.
The record establishes that it was possible that there
would be pedestrians and other traffic in the area of the
operation of the Euclid unit, as well as the operation of
other units in the area. I find it is probable that a
serious injury could result as a result of the inadequacy
of brakes of these two Euclid haul units.
The record establishes that the operator's foreman had
knowledge for some time prior to issuance of the orders of
withdrawal on March 19, 1980, that the brakes of the two
Euclid haul units wer'e inadequate. The exact period of time
that these brakes had been inadequate has not been definitely
established, however, it is clear that the time was sufficiently long that something should have been done to
correct the situation.

124

The brakes had been adjusted on occasion, as it was
normal to do in the regular course of business at the pit.
Nevertheless, when there came a time when the brakes would
not stop the vehicles and adjustment would not remedy the
situation, that was a time at which other attempts should
have been made to undertake further repair work and remedy
the inadequacies in the braking ability.
The company, after finding that the brakes were
inadequate, did stop using the vehicles to go up the ramp
and, instead, dumped the materials at the stockpile which
was on level area. Nevertheless, the vehicles were allowed
to continue to operate with inadequate brakes, which created
a hazard. The fact that it was a costly and time-consuming
operation to pull the wheels and overhaul the brakes is no
excuse for failure to operate the vehicles with adequate
brakes. I therefore find the operator negligent in
operating the Euclid haul unit No. 1 and the Euclid haul
unit No. 2 with inadequate brakes.
As to the good faith of the operator, the order of withdrawal was issued on March 19, 1980, by inspector Stephen R.
Kirk and was abated on Harch 26, 1980, by inspector Stephen R.
Kirk. In terminating the order, Inspector Kirk noted that:·
"The btakes on the No. 1 Euclid haul unit were rebuilt and
working." Mr. Kirk has testified that the operator exhibited
good faith in accocrplishing these repairs in this time.
Order of Withdrawal No. 154782, which was also issued
on March 19, 1980, was terminated by inspector Harold R.
Yount on March 31, 1980. In terminating the order, Inspector
Yount noted: "New brakes and cylinders were installed on the
No. 2 Euclid haul unit • 11
Mr. Prater has testified that these repairs were accomplished as expeditiously as possible and that the operator
was fortunate in being able to obtain these parts in time
to accomplish the repairs as soon as he did.
I find that as to both citations, Citation No. 154781
and No. 154782, the operator demonstrated good faith in
achieving rapid compliance after notification of the
violations.
In consideration of the statutory criteria and the
findings already made, I find that the appropriate penalty
for each of these citations is $200. The sum of $200 is
assessed for the violation noted in Order of Withdrawal
No. 154781, and a penalty of $200 is assessed for Order of
Withdrawal No. 154782.

125

Respondent is ordered to pay Petitioner the sum of $400
within 30 days of the date of this decision.
ORDER
The decision and order announced orally from the bench at the hearing on
November 26, 1980, is AFFIRMED. It is ORDERED that Respondent pay Petitioner
the sum of $400 within 30 days of this decision if it has not already done
so. J:../

Forrest E. Stewart
Administrative Law Judge

Distribution:
Max A. We·rnick, Esq., Millie Brooks, Legal Assistant, Office of the
Solicitor, U.S. Department of Labor, 555 Griffin Square Building,
Suite 501, Dallas, TX 75202 (Certified Mail)
Mr. Richard Prater, President, Belton Sand & Gravel Company, Inc.,
P.O. Box 3634, Temple, TX 76501 (Certified Mail)
2/

Section llO(j) of the Act provides:
"(j) Civil penalties owed under this Act shall be paid to the Secretary
for deposit into the Treasury of the United States and shall accrue to the
United States and may be recovered in a civil action in the name of the United
States brought in the United States district court for the district where the
violation occurred or where the operator has its principal office. Interest
at the rate of 8 percent per annum shall be charged
t a person on any
final order of the Commission, or the court. Interest shall begin to accrue
30 days after the issuance of such order."

126

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

JAN
BARNES & TUCKER COMPANY,

7 1981
Contests of Citations

Contestant
Docket No. PENN 80-246-R

v.

Citation No. 848844
April 29, 1980

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

Docket No. PENN 80-247-R
Citation ~o. 848845
April 29, 1980
Lancashire No. 24-B Mine

DECISION
Appearances:

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli,
Washington, D.C., for Contestant;
Michael C. BoldeL, Esq., Office of the Solicitor,
U.S. Department of Labor, for Respondent.

Before:

Judge Charles C. Moore, Jr.

At approximately 7:50 a.m. on April 23, 1980, a fire was discovered in
the penthouse containing the hoisting equipment for the elevator at the
Teakettle Portal of Contestant's No. 24-B Mine. Upon being notified, the mine
superintendent, mine foreman and a number of others attempted to extinguish
the fire with co2 firefighting equipment. At approximately 8 a.m., they
called the local fire department which was 7 miles from the mine. It was
estimated, and the basis for the estimation seems reasonable, that tne fire
department could have arrived at the mine no later than 8:15. They began
extinguishing the fire using a 1-1/2-inch water hose, but there is no evidence as to when the firemen actually extinguished the fire. There is evidence, however, that they had returned to the firehouse by 9:15 a.m. At
8:40 a.m., Inspector Niehenke was inspecting another mine and was informed
that the fire at Contestant's Teakettle Portal was being broadcast on CB radio
as well as commercial radio. In~pector Niehenke called his supervisor,
Mr. Gobert, to see if Mr. Gobert knew of the fire. Mr. Gobert did not, but
said he would call the company, which he immediately did. Mr. Gobert called
Inspector Niehenke at 8:50 a.m., confirmed the fact of the fire and directed
him to proceed to the Teakettle Portal. The inspector arrived at the
Teakettle Portal at 9:15 a.m., the approximate time the firemen returned to
their station.

127

The inspt?.ctor arrived at the mine while it was being evacuated and when
he reached the penthouse workers were attempting to clean the area and
restore order. Upon entering the penthouse, he saw electrician Fred Gormish
cut an electric cable that led from a disconnect switch to a space heater.
He told Mr. Gormish that he was destroying evidence and immediately (at
9:30 a.m.) issued an order under section 103(k) of the Act which prohibited
further restoration activities. 1/

An accident investigation commenced at 9:45 that morning and lasted
5 days. After the investigation, two citations were issued charging the company with failing to immediately report an accident and altering the scene of
an accident. The citations allege violations of 30 C.F.R. § 50.10 and
30 C.F.R. § 50.12, respectively.:!:._/
Twelve situations are defined in 30 C.F.R. § 50.2(h) as accidents
reportable to MSHA under 30 C.F.~. § 50.10, supra. Four of the 12 definitions include a 30-rninute time period; two of those four are relevant to the
facts of this case.
Subsection (h)(6) defines as an accident: "An unplanned mine fire not
extinguished within 30 minutes of discovery* * *" and subsection (h)(ll)
defines as an accident: "Damage to hoisting equipment in a shaft or slope
which endangers an individual or which interferes with use of the equipment
for more than 30 minutes."
Whether the 30-minute time period refers to the time within which the
above occurrences are to be reported to MSHA or whether it refers to a time
period which must elapse before the fires become reportable accidents was disputed at the hearing. Both the inspector and his supervisor were of the
opinion that the 30-minute period referred to the time within which an accident must be reported, but MSHA decided not to charge Barnes & Tucker for
1/ There is an implication in the inspector's testimony and in the Government 1 s brief that the issuance of a 103(k) or~er is the proper way to preserve evidence. While this may be true if the preservation of evidence also
insures "the safety of any person in the * * * mine," preservation of evidence alone will not justify such an order. Eastern Associated Coal Co.
HOPE 75-699; 2 FMSHRC 2467 (September 2, 1980).
:!:_/ Section 50.10 states:
"If an accident occurs, an operator shall immediately contact the MSHA
District or Subdistrict Office having jurisdiction over its mine. I~ an
operator cannot contact the appropriate MSHA District or Subdistrict Office
it shall immediately contact the MSHA Headquarters Office in Washington,
D. C., by telephone, toll free at (202) 783-5582. 11
Section 50.12 states:
"Unless granted permission by a MSHA District Manager or Subdistrict
Manager, no operator may alter an accident site or an accident related area
until completion of all investigations pertaining to the accident except to
the extent necessary to rescue or recover an individual, prevent or eliminate
an imminent danger, or prevent destruction of mining equipment."

128

failing to report a subsection (h)(6) accident as they were unable to determine how long the fire lasted (Tr. 150). 3/ My interpretation is that,
contrary to the Government's tes.timony, 30minutes must elapse before the
accidents defined in subsections (h)(6) and (h)(ll) become reportable.
Section 50.10 states that if an accident occurs "an operator shall immediately contact the MSHA district or subdistrict office * * *·" The regulations do not say what is meant by the words "immediately contact" but
certainly in the case of an injury MSHA would not expect a miner or a supervisor to run for a telephone rather than give aid to an injured miner. It
seems that reasonable promptness is what should be expected of the mine operator. But in the case of those accidents which only become reportable if
they last a certain length of time, the "reasonable promptness" time period
cannot be expected to start until after the time period has passed. There is
no accident to report until after the time has elapsed.
During the course of the firefighting effort by the fire department, the
electrical hoist machinery was soaked and there was testimony that it should
not have been operated without having first been cleaned and dried. The
machines were not damaged in any way by the fire itself. It is impossible to
detennine exactly when the firemen sprayed the hoisting equipment. Inasmuch
as the firemen probably did not arrive at the mine until 8:15 a.m. and the
damage was done sometime after that, and inasmuch as MSHA was notified of the
accident at 8:45 a.m. there is no way that 30 minutes could have passed (even
if that were the correct rule, which it is not) between the time the hoists
were damaged and MSHA was notified of the accident. MSHA has thus failed to
establish that the company violated 30 C.F.R. § 50.10 and the citation alleging such a violation is vacated.
The allegation that the mine operator altered the accident site prior
to completion of the investigation presents a more difficult problem. The
inspector's description of the physical layout of the penthouse is at variance with the photographic evidence and testimony presented by the Contestant.
The inspector testified that the wire which he saw the electrician cut
extended from the heater to a breaker switch which was in the open position.
The electrician, however, testified that he had removed the breaker switch
before the inspector arrived. The electrician also testified that in cutting the wire he thought he was eliminating an imminent danger, but obviously
if the breaker switch had already been removed no power could reach the line
he severed, and thus there was no imminent danger. There was also the fact
that Mr. Dolges, an electrician, removed a burned wire from one of the three
boxes on the penthouse wall but refused to tell the inspector about that when
he was questioned. It was this missing wire which apparently led the inspector and the rest of the investigat~on team to suspect devious acts on the
operator's part. I suspect that no citations would have been issued if
3/ The Secretary's brief appears to argue to the contrary, but it is clear
that the citation was for failure to report the damage to the hoisting
equipment rather than the fire itself.

129

Mr. Dolges had testified during the investigation. But all of these matters
become unimportant if the damage to the hoisting equipment was not a reportable accident, because if it was not, there was no duty to maintain the accident scene in an unaltered state.
In my opinion, MSHA has failed to establish that the damage to the
hoisting equipment was a reportable accident. Otis Elevator Company employees informed the Contestant that the hoist could be run immediately without
further maintenance, but they could not guarantee further damage would not be
done. In addition, there is no way to know how long it would have taken the
operator to blow the motors dry and resume operation since the inspector
halted the restoration operations by issuing his section 103(k) order. The
order was issued at 9:30 a.m. but as stated before, it is unknown when and to
what extent the hoist machinery was damaged by the firemen's water. And
although the inspector stated that he issued his 103(k) order at 9:30 a.m.,
he also stated that when he earlier accused Mr. Gormish of destroying evidence, Mr. Gormish ceased further restoration operations. I hold that MSHA
has failed to carry its burden of showing that this was a reportable accident. I further hold that there was no devious intent on the operator's
part to hide any phase of this accident, but that it was merely trying to
restore the penthouse to operating condition and thus protect its equipment
from whatever deleterious effect might result from letting the hoist stay wet.
Citation Nos. 848844 and 848845 are vacated, and all proposed findings
not included above are
ected.

Charles C. Moore, Jr.
Administrative Law Judge
Distribution:
Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli,
1800 M. Street, NW., Washington, DC 20036 (Certified Mail)
Michael C. Bolden, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America,
900-15th Street, NW., Washington, DC 20005 (Certified Mail)

130

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

January 8, 1981

UNITED STATES STEEL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Contest of Order
Docket No. WEVA 81-33-R
Order No. 894407
Mine No. 2

Respondent
DECISION
Appearances:

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for
Contestant;
Barbara K. Kaufmann, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.

Before:

Chief Administrative Law Judge Broderick

Pursuant to notice, the above case was called for hearing on the merits
on December 16, 1980, in Charleston, West Virginia. After the completion of
the evidentiary hearing and after hearing arguments by counsel, I rendered a
bench decision which is set forth below:
This is a proceeding instituted by United States Steel
Corporation under section 107(e) of the Federal Mine Safety
and Health Act of 1977, seeking to have vacated an order of
withdrawal issued pursuant to section 107(a) of the Act.
The case was heard today pursuant to notice, today being
December 16, 1980, in Charleston, West Virginia.
At the conclusion of the testimony, the parties orally
argued their positions on the record, and have waived the
right to file written proposed findings of fact and conclusions of law.
The issues are:
1. Did the practice which Inspector Walls stated existed
in the subject mi~c, namely, the use of a shuttle car trailing cable to withdraw power for other equipment, did that
practice exist as of September 9, 1980, in the subject mine?

131

2. The second issue, if so, was the practice an imminent danger, that is, could it reasonably be expected to
cause death or serious physical harm before it could be
abated?
The following are my findings of fact based upon the
record made before me today and the contentions of the
parties.
1. The Contestant, United States Steel Corporation, on
September 8, 1980, was the operator of a coal mine known as
the Gary District Mine No. 2 in the State of West Virginia,
and was subject to the Federal Mine Safety and Health Act
of 1977 in the operation of that mine.
2. Franklin Walls was a Federal mine inspector, Federal
mine electrical inspector and was a duly authorized representative of the Secretary of Labor at all times pertinent to
this decision.
3. On September 9, 1980, Inspector Walls inspected the
Gary Mine "No. 2 and issued Order No. 894407 under section
107(a) of the Act, alleging an imminent danger because of
the practice described as, "the practice of providing power
to other devices by means of equipment trailing cables."
4. I find that the evidence establishes that employees
of United States Steel Corporation in the Gary Mine No. 2
did use trailing cables to provide power to other equipment
in the mine. I am persuaded that this occurred because of
the following factors: (a) placement of the holes in each
set of holes which were found, which I find to have been
approximately 10 to 12 inches apart; (b) the fact that the
holes went through the entire cable, passing through the
conductors and out the other side; (c) one of the holes in
each set of holes was large enough so that the conductor was
visible when the cable was flexed and corrosion was seen on
the conductor.
For these reasons, I reject the evidence that the holes
were caused by an ohmmeter or accidentally caused by the
cable contacting a nail on a rib board, and I find affirmatively that they were caused by the driving of a nail or
other instrument through the cable, the purpose of which was
to provide power for other equipment in the mine.
There is no direct evidence that this occurred, but the
inference is a reasonable and natural one from the evidence
which I found.

A further question remains. Was this a practice? The
evidence shows that two sets of holes were present in the
same trailing cable, indicating that on at least two occasions this--what I have described--had occurred, namely,
that power was drawn from the shuttle car cable to empower
other equipment.
I find that these two occurrences establish a practice.
This does not mean that the operator prescribed or condoned
the practice. The question of fault or lack of fault on
the part of the operator is not relevant to a determination
of the propriety of the issuance of a 107(a) order.
So, I find and conclude that the practice charged in the
withdrawal order did exist in the subject mine.
The remaini~g question is whether the practice was an
imminent danger• I think the evidence is clear, and I find
that if the practice were continued it could reasonably be
expected to cause death or serious physical harm.
The company denies that the practice existed, but does
not or has not submitted evidence to seriously contend that
if the practice existed it was not imminently dangerous.
The danger consisted essentially in the possibility of a
miner receiving an electrical shock, an electrocution or
the occurrence of a mine fire resulting from the baring of
the power conductors in the cable.
The following are my conclusions of law:
1. I have jurisdiction over the parties and subject
matter of this proceeding.
2. Inspector Walls properly issued Withdrawal Order
No. 894407 on September 9, 1980, under section 107(a) of
the Act. An imminent danger existed, namely, the practice
of using a shuttle car trailing cable to provide power to
other equipment by driving a nail or other device through
the two conductors in the cable.
I find and conclude that this practice could reasonably
be expected to result in death or serious physical harm
before it could be abated.

I make no finding as to whether the condition or the
practice described in the order constituted a violation of
30 C.F.R. § 75.512.

133

Therefore, I issue the following order: The contest of
the order filed by Contestant United States Steel Corporation
is denied, and the order of withdrawal is affirmed.
This decision will be issued in writing as I have given
it orally following receipt of the transcript. The time for
either party to file a petition for discretionary review with
the Commission will begin to run from the date of the issuance
of the written decision.
Thank you very much, ladies and gentlemen.

ORDER
The bench decision is AFFIRMED. Contest of Order No. 894407 issued
September 8, 1980, is DENIED and the order is AFFIRMED.

/drvkeZ_
/

James A. Broderick
Chief Administrative Law Judge

Distribution:
Louise Q. Symons, Esq., Attorney for United States Steel Corporation,
600 Grant Street, Room 1501, Pittsburgh, PA 15230
Barbara Krause Kaufmann, Attorney, Offic~ of the Solicitor, U.S. Department of Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

134

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

JAN

9 198f

Civil Penalty Proceeding

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

Docket No. VINC 79-39-PM
A.O. No. 33-03313-05001

Petitioner
v.

Quarry Division Quarry & Mill
ERIE BLACKTOP, INC.,
Respondent
DECISION
Appearances:

Edward H. Fitch IV, Attorney, Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the
petitioner;
James E. McGookey, Attorney, Sandusky, Ohio, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding was initiated by the petitioner against the respondent
through the filing of a petition for assessment of civil penalties pursuant
to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a), proposing penalties for 12 alleged violations of certain mandatory
safety standards promulgated pursuant to the Act. A hearing was held in
Sandusky, Ohio, during the term July 29-30, 1980, and the parties appeared
and participated therein. Although given an opportunity to file posthearing
proposed findings and conclusions, the parties opted to waive such filings
and none were filed. However, I have considered the arguments advanced by
the parties in support of their respective cases during the course of the
hearing in this matter.
Issues
The issues presented in this proceeding are: (1) whether respondent has
violated the provisions of the Act and implementing regulations as alleged in
the petition for assessment of civil penalties, and, if so, (2) the appropriate civil penalties that should be assessed SLgainst the respondent for the
alleged violations based upon the criteria set forth in section llO(i) of the
Act.

135

In determining the amount of civil penalty assessments, 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 charged, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violations, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violations.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U. S.C. § 801 ~ seq.
2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.
Discussion

Stipulations
The parties stipulated to the following:
1.

Respondent has no prior history of violations under the Act.

2. Any penalty assessments made by me in this proceeding will not
adversely affect tpe respondent's ability to remain in business.
3. The parties agreed to the authenticity and admissibility of all hearing exhibits, agreed that the inspector who issued the citations was acting
within the scope of his authority as an MSHA inspector, and that he cited the
alleged violations upon inspection of the mine.
4.

Respondent is a small u;ine operator.

Preliminary Procedural Matter
The petition for assessment of civil penalties filed in this proceeding
states that "a copy of each citation and/or order for which a civil penalty is
_sought is attached hereto," and it also asserts that MSHA seeks penalty assessments "for each alleged violation set forth in attached Exhibit A." Exhibit A
is an MSHA proposed assessment form which contains an itemized listing of
12 citations issued on May 4, 1978, and the citations are identified numerically as Citation Nos. 359236 through 359247. Citation Nos. 359236 through
359240 are listed as section 104(a) citations all of which are shown as issued
on May 4, 1978. The remaining listed citations, Nos. 359241 through 359247
are all identified as section 104(b) orders of withdrawal, and they too are
shown as being issued on May 4, 1978. However, copies of the 12 citations
and seven additional orders numbered 359248 through 359254, dated May 16, 1978,
were included as part of MSHA's civil penalty petitions.

136

The Commission's current rules, 29 C.F.R. § 2700.27(c), effective June 29,
1979, as well as the rule in effect at the time of MSHA's petitions were filed,
29 C.F.R. § 2700.24(b), require the Secretary to list the cited violations for
which civil penalties are sought, and require that they be identified by number
and date and the section of the Act or regulation allegedly violated.
In view of the apparent discrepancy and error in the listing and identification of seven of the 104(a) citations as 104(b) orders, and the omission
of the orders from the itemized listing, MSHA's counsel was requested to
clarify the matter so as to preclude any confusion as to the citations for
which penalty assessments were being sought by the Secretary. Counsel stated
that the itemized listing included as an exhibit to MSHA's petition resulted
from an apparent computer error, that MSHA is seeking civil penalty assessments only for the 12 section 104(a) citations listed and included as attachments to the petition, and that the 104(b) orders included as attaclunents to
the petition are relevant only to the extent that they reflect a lack of good
faith compliance with respect to the asserted failure by the respondent to
timely abate the seven citations to which they relate, and that the orders are
relevant and material to this issue and should be considered in the assessment
of any civil pehalties for these citations (Tr. 20-21, 188-190).
In view of counsel's explanation and clarification, the parties were
informed that I would consider MSHA's petition for assessment of civil penalties as a petition for assessment of penalties for the 12 cited 104(a) citations, and that the 104(b) orders were relevant for purposes of establishing
any alleged lack of good faith compliance. Further, I denied respondent's
motion to dismiss the seven citations erroneously identified as 104(b) orders
on the ground that MSHA is free to amend its pleadings to conform to the evidence, that respondent has not been prejudi~ed since any civil penalty assessments would be levied by me de novo on the basis of the record adduced at the
hearing, and that I considered the asserted computer error to be technical in
nature (Tr. 23).
Test

and Evidence Adduced

the Petitioner

Citation No. 359236 cites a violation of section 109(a) of the 'Act and
states as follows: "An office sign was not posted on the office."
MSHA inspector Edward Cloud confirmed that he issued the citation in
question (Exh. P-1) after observing that a trailer on the mine premises used
as the mine office had no sign posted identifying it as an office. He had
previously inspected the mine under the Metal and Non-Metal Mine Act and
believed that it was the same trailer. Mine management accompanied him on
the inspection and he always affords a mine representative an opportunity to
accompany him, although small operators often choose not to because they
would have to close the operation down. The trailer was the only structure
which appeared to be an office, although there is a maintenance shop, a mill,
and other structures on the premises. The trailer was parked by the weigh
scales, a secretary worked there, and it is the first structure that one
encounters after driving on the mine property.

137

Cloud stated that the respondent was negligent because he had
previously visited the mine in April 1978, to explain MSHA's assessment procedures and to deliver copies of the new Act to mine management. He did not
consider the violation to be serious and respondent abated the violation in
good faith by purchasing and installing a sign designating the trailer as the
mine office (Tr. 37-45).
On cross-examination Mr. Cloud confirmed that his inspection of May 4,
1978, was the
one at the mine under the new Act and he confirmed his
previous "courtesy visit" of April to explain the new law to mine management.
He confirmed his belief that the trailer he observed on May 4 was the same
one which he previously observed but he could not state whether it had just
recently been brought to the mine.
Citation No. 359237 cites a violation of section 109(a) of the Act and
states as
board was not provided for the office • 11
or Cloud confirmed that he issued the citation (Exh. P-4) after
he found that there was no bulletin board in the mine off ice. He observed no
notices or copies of the regulations posted, and none of the interior trailer
walls were designated or indicated to be a bulletin board. Since section
109(a) of the Act required a bulletin board and he observed none, he issued
the citation. He believed the respondent was negligent because mine management had a copy of the Act. He considered the violation to be nonserious
and abatement was achieved in .good faith by the purchase and installation
of a bulletin board (Tr. 74-77).
On cross-examination, Mr. Cloud indicated that he recalled making an
inquiry about the bulletin board and that Company President Winkel confirmed
the lack of a bulletin board. Mr. Cloud also indicated that if any portion
of the mine office wall had been specifically designated or
ed as a
bulletin board, with the required notices posted, he would not have issued
the citation (Tr. 81-88).
Citation No. 359238 cites a violation of 30 C.F.R. § 56.11-1 and states:
means
access was not provided from the elevated we
scales to the
elevated doorway at the east end of the office."

"A

"A

the

access was not provided from the elevated
at the west end of the office."

scales to

Inspector Cloud confirmed that he issued the citation
• P-7) after
determining that a safe means of access was not provided from the elevated
weigh scales to the elevated entrance door at the east end of the trailer
office. The trailer was located adjacent to the weigh scales and both the
trailer and scales were both approximately 4 feet off the ground and the
distance between the two was approximately 3 feet. The only means of access
from the scales to the door was by jumping or stepping across the 3-f oot opening and the secretary working in the office advised him she had to jump across

138

from the scales to the door opening. He also indicated that he decided not to
jump across to enter the off ice, but instead went to the rear of the trailer
and climbed up one of the two door entrances to enter the office. He considered the operator to be negligent and considered the violation to be very
serious because someone could be seriously injured if they were to fall
through the opening and down the 4-foot elevated area. However, he was not
aware that anyone had been injured by falling off. Abatement was achieved
timely by the installation of a corrugated metal access way which was
3 feet wide and 4 feet long and he believed the respondent provided a more
than adequate safe access (Tr. 54-71, 89-94).
On cross-examination, Inspector Cloud stated that at least three
employees were on the premises on the day of his inspection, but he could
not state with any certainty how frequently persons traveled the area from
the scales to the trailer where no safe access was.provided. At my request,
he drew a sketch of the area (Exh. ALJ-1), and indicated that the normal
route of traffic to the trailer office was from the parking area, across the
weigh scales, and directly into the trailer through the doors. The rear
doors were located around and behind the trailer down an embankment, and he
did not believe' that those doors were used as a regular means of access to
the trailer (Tr. 99-114).
With respect to Citation No. 359239 (Exh. P-11), Inspector Cloud confirmed that he issued it as a separate citation because a safe means of
access was not provided from the weigh scales to the trailer office doorway
at the west end of the trailer and the parties stipulated that his testimony
regarding this citation would in all respects be the same as that given for
Citation No. 359238 (Tr. 114-117).
Citation No. 359240 cites a violation of 30 C.F.R. § 56.9-87 and states:
"The 988 Caterpillar front-end loader was not equipped with an automatic,
audible backup alarm."
Inspector Cloud confinned that he issued the citation (Exh. P-13) after
observing the 988 Caterpillar front-end loader operating in forward and
reverse while hauling materials from the muck pile, and when it operated in
reverse no alarm sounded. The machine operator advised him that a backup
alarm had been installed on the rear wheel but had been knocked off. Upon
inspection of the wheel, Mr. Cloud observed no alarm installed and he could
not determine whether one had been installed. He was aware that an alarm
had been installed on the loader in the past since he had previously cited
the loader under the Metal and Non-Metal Mine Act and abatement was
achieved by installing a backup alarm. The loader was a piece of heavy-duty
mobile equipment, and since he observed no one serving as an observer, a
backup alarm was required. Tiie loader was the only piece of equipment
operating in the pit area and he determined that the view to the rear was
obstructed because of the fact that the machine engine is located behind the
operator's cab, and while the operator can see to the rear right and left,
the view directly behind him is obstructed by the engine. He did not sit
in the operator's seat, did not look to the rear from the seat, but did

139

climb up the ladder and looked in the cab to determine whether a fire
extinguisher and seat belts were installed.
Mr. Cloud stated that he observed no one in the vicinity of the loader,
and he and company president John Wikel were the only ones present in addition to the loader operator. However, mine employees, such as the mill and
crusher operator, and state and Federal mine inspectors, would have occasion
to be in the area where the loader operated and would be exposed to a hazard
of being run over by the loader. He believed the respondent was negligent
and he considered the violation to be serious since anyone to the rear of
the loader would not be aware that it was backing up without an alarm
sounding. The loader is used to load materials from the pit to the crusher
and is also used to move limestone materials around the area. Abatement was
timely achieved in good faith by the installation of a backup alarm (Tr. 120132).
On cross-examination, Inspector Cloud confirmed that the loader was in
operation when he observed it and he indicated that the operator's seat is
located in a cab which is located in front of the machine's engine. He could
not recall the precise seat location and indicated that the cab ladder is
approximately 6 feet high and that the loader is approximately 15 feet long.
Based on his knowledge of such front-end loaders where the engine is mounted
behind the operator's seat and cab, it was his belief that they all have
obstructed views to the rear and he would cite them all for the lack of
backup alarms (Tr. 133-139).
Citation No. 359241 cites a violation of 30 C.F.R. § 56.14-1 and states:
"The flywheel on the secondary crusher was not guarded."
Inspector Cloud confirmed that he issued the citation in question (Exh.
P-17) after observing that the crusher flywheel was unguarded. The rotating
flywheel was approximately 4 feet in diameter and some 6 inches wide. It was
located some 5 feet off the ground but was near a pathway where persons
normally walked by while going to and from plant locations. The violation was
serious because one could get their arm or clothing caught in the unguarded
moving flywheel and serious injuries could result. Inspector Cloud observed no
evidence or indications that maintenance was being performed on the flywheel
(Tr. 160-170).
Regarding the abatement, Inspector Cloud stated that a guard was installed
over the entire flywheel to abate the citation. However, he indicated that
the respondent did not initially abate the condition within the time given and
that Mr. Wikel told him that he was too busy to guard the flywheel, and that
the plant was down for maintenance and testing. However, he observed a muck
pile at the end of the conveyor belt which led him to believe that material
was moved on the belt and that the plant was in production. Inspector Cloud
stated that he did not believe that the respondent acted in good faith
because he had to issue a withdrawal order to gain compliance. He also indicated that when he returned to the mine on May 25, 1978, respondent had shut
the plant down and he could not recall whether the flywheel guard was in

140

place at that time, and he was not certain as to whether the citation was in
fact ever abated (Tr. 174-182).
Inspector Cloud described the secondary crusher as a "portable plant"
which is located on a flatbed mounted on wheels, and it can readily be
moved around. He stated that his "rule of thumb" in citing guarding violations is that if an unguarded location is within 7 feet of one's reach, he
requires a guard to be installed. He could not confirm that the pathway by
the secondary crusher is in fact a normal travelway, but he was concerned
that a maintenance man or electrician may have come in contact with the
unguarded flywheel. He conceded that the crusher was accessible only from
one side and also indicated that anyone walking on the platform above the
flywheel would not be exposed to a hazard since he would be above it (Tr.
200-206).
Citation No. 359242 cites a violation of 30 C.F.R. § 56.11-2 and states:
"The handrail on the elevated walkway at the secondary crusher was not in
good repair."
Inspector Cloud confirmed that he issued the citation in question on
May 4, 1978, after observing that a section of the handrail around the
elevated walkway on the secondary crusher was missing and broken. The
defective rail was approximately 10 feet long and was constructed out of
pipe. The rail was some 15 to 18 feet off the ground and the walkway led
to a work platform around the crusher (Tr. 4-9, July 30, 1980).
Inspector Cloud indicated that he gave the respondent a week to abate the
citation·, and when he returned to the mine on May 16, the condition was not
corrected and he was forced to issue a withdrawal order after the respondent
advised him that he was "too busy" to correct the condition. The condition
was corrected by May 25 after the respondent welded the broken pipe back in
place and the citation was terminated at that time (Exh. P-20).
Mr. Cloud identified the defective portion of the handrail as a broken
weld and indicated that the plant was in operation on May 4, but was not
certain that it was on May 16. The work area in question was a combined
walkway and work platform, and while it was improbable that anyone could
fall off the area, five employees and a maintenance man would have occasion
to be in the area cited (Tr. 14-18, July 30, 1980).
Citation No. 359243 cites a violation of 30 C.F.R. § 56.11-1 and states:
"The first section of the ladderway to the primary crusher was missing."
Inspector Cloud testified that he issued the citation on May 4 (Exh.
P-23) after finding that the first section of the ladderway leading to the
primary crusher was missing. In fact, he indicated that the bottom 4-foot
section of the ladder had no concrete blocks in place or other means to
allow an employee to readily step up and gain access to the working place on
the crusher. The top of the ladder is affixed to the crusher platform and
the bottom portion from ground level upward was missing, thereby making it

141

very difficult for the crusher operator to climb up on the crusher platform
to reach his work station (Tr. 61-64, July 30, 1980).
Inspector Cloud stated that when he returned to the mine on May 16, the
condition had not been corrected and this prompted the issuance of a withdrawal
order. Mr. Cloud again stated that the respondent advised him he did not have
time to abate the condition. However, when he returned to the mine on May 25,
the missing section of ladder had been welded in place and the citation was
accordingly terminated at that time (Tr. 64-66, July 30, 1980).
Citation No. 359244 cites a violation of 30 C.F.R. § 56.11-12 and states:
"An inside handrail was not provided on the elevated walkway around the
primary crusher."
Inspector Cloud confirmed that he issued the citation in question on
May 4, 1978, after observing that there was no inside handrail along the
elevated walkway around the primary crusher. Such a rail was required so
as to prevent an employee from falling into the crusher opening. The walkway, or platform, is at the same level as the entrance to the crusher shanty.
Mr. Cloud fixed May 11 as the abatement time but when he returned on May 16,
the rail had not been installed and an'order of withdrawal was issued. Abatement was finally achieved on August 17, when the respondent installed a
6-foot handrail constructed out of pipe material. Respondent's excuse for
not abating the condition within the time initially fixed was that he was
"too busy." Inspector Cloud indicated that similar crushers have been
guarded by handrails and the probability of the crusher operator falling
into the crusher was improbable (Tr. 67-74, July 30, 1980).
Citation No. 359245 cites a violation of 30 C.F.R. § 56.11-12 and states:
"An inside handrail or barrier was not provided on the inside of the elevated
operator's platform on the primary crusher."
Inspector Cloud confirmed that he issued the citation on May 4, 1978,
after discovering that one side of the operator's shanty on the primary
crusher was open and exposed on the left end looking from inside tpe shanty
out toward the crusher. The open end did not contain a barrier or protection of any kind to prevent the crusher operator from falling through the
opening some 15 to 18 feet to the ground. The condition was not abated
within the time fixed, and Mr. Cloud had to issue a withdrawal order to gain
compliance (Tr. 74-82, July 30, 1980).
Citation No. 359246 cites a violation of 30 C.F.R. § 56.14-1 and states:
"The V-belts on the drive motor at the primary crusher were not guarded."
Inspector Cloud confirmed that he issued the citation on May 4 after
observing that the three-fourths-inch V-belt located on the drive motor of
the primary crusher was not guarded. The belt was approximately 4 feet long
and was some 3 feet from the crusher ladder. He believed that anyone on
the ground or on the ladder would be exposed to a hazard from the unguarded
belt in question and the hazards included the possibility of someone being

112

struck or grabbed by the whipping action of the belt in the event it broke
or being caught in the belt pinch point. He indicated, however, that one
would have to deliberately stick his hand into the pinch point in order to
be injured. He did not know whether maintenance was being performed on the
drive motor on the day of the inspection. The citation was abated on
August 17, when the respondent installed a metal guard around the entire
V-belt location (Tr. 107-121, July 30, 1980).
Citation No. 359247 cites a violation of 30. C.F.R. § 56.14-1 and states:
"The head pulley on the No. 2 belt conveyor was not guarded."
Inspector Cloud stated that he issued the guarding citation in question
after discovering that the bead pulley on the No. 2 conveyor belt was not
guarded. The pulley was some 2 feet off the ground and he believed that the
plant operator or maintenance man could come in contact with the pulley pinch
point by walking near it. There was no barrier or fence to keep people away
from the pulley and the wet surface area around it presented a hazard since
someone could have slipped and fallen into the exposed pinch point. He
believed the operator was negligent. The condition was not abated on May 16,
and he issued a withdrawal order, but subsequently terminated it on May 25
when a guard was installed. Mr. Cloud conceded that there was no regularly
visible traveled path for employees to walk on near the pulley in question
(Tr. 129-146, July 30, 1980).
Respondent's Testimony and Evidence
Dean Wikel, respondent's secretary-treasurer, testified that the mine
office was located in a trailer which had been moved to its location about a
week or so before the inspection conducted by Inspector Cloud. Regarding
the bulletin board citation, Mr. Wikel testified that he had ordered a
board 2 weeks after the new law went into effect and that it was stored in
the office when the inspector conducted his inspection. Due to the fact
that he was in the process of moving into the trailer he had not mounted th~
board on the office wall as required by the inspector. Notices were posted
on the wall of the trailer and he pointed the bulletin board out to
Mr. Cloud. With regard to the mine office sign, Mr. Wikel stated that he
was not aware of the fact that one was required, although he confirmed the
fact that Mr. Cloud did give him a copy of the law during a previous mine
visit.
Regarding the safe means of access citations at the weigh scales,
Mr. Wikel confirmed that the distances an employee would have to stride from
the scales to the office entrances at both of the cited locations were the
same, and he believed they were somewhat less than a stride. Abatement was
achieved by placing boards across the open gaps, supported by cement blocks.
He believed the open gaps were less than.2 feet, and while he did not believe
that the cited conditions presented a hazard, he conceded that it was possible that someone attempting to stride from the scales to the entrance of
the office could have fallen and injured a leg.

143

Regarding the backup alann citation, Mr. Wikel described the dimensions
of the loader in question and stated that it was equipped with a rearview
mirror, and since the operator's seat was elevated approximately a foot and
a half higher than the rear-mounted engine, he believed that the operator
could see anyone directly to the rear of the machine through the rearview
mirror. He also indicated that no one would be to the rear of the machine
during its normal operation and that "no one in his right mind" would
approach it from the rear while it was in operation.
Mr. Wikel described the dimensions of the loader in question as 11 feet
wide, 12 feet high and some 30 feet long. The backup alarm in question was
mounted on the rear wheel of the loader, and he stated that the inspector
insisted that it be maintained at that location and that he was not really
concerned with rearview visibility. Mr. Wikel conceded that the loader
which was cited was in fact equipped with an audible backup alarm prior to
the inspection of May 4, and that it was installed on the left rear wheel.
However, he also indicated that Inspector Cloud had previously cited a violation for the backup alarm, not because of any visibility problem, but
because of his insistence that an alarm was required by law (Tr. 230-233).
Mr. Wikel did not dispute the fact that the flywheel on the secondary
crusher was unguarded. However, he indicated that during the periods May 4,
16, and 25, 1978, the plant was not in full production and was in fact closed
down. He identified Exhibit R-5 as a photograph of the flywheel in question
and confirmed the fact that anyone walking by the flywheel location would
have to walk around it to avoid it, and stated that while the crusher was
not in full production, it was operated at times for testing and he did not
believe that the flywheel had to be guarded while the plant was not in full
production because no one would be around it. He indicated that he advised
the inspector on May 4 that he was testing the crusher equipment to ascertain
whether it was operating properly and also advised the inspector that he was
not in full production. Employees were instructed to stay clear of the
flywheel.
Mr. Wikel stated that he shut the plant down after receiving the
12 citations in question and that five were abated immediately. Since he
was involved in the abatement of the five citations from May 4 to the 16th,
and the plant was down, he could not work on abating the remaining seven. He
did not intend to use the crusher until all of the citations were abated,
and while he denied telling Mr. Cloud that he was "too busy" to abate the
seven citations, it was possible that this was in fact the case. He was
attempting to reopen the plant, while at the same time operating a blacktop
business, and most of his work was directed to that business. He indicated
that during May 1978, he was only producing, 25,000 tons of limestone
annually, operating some 50 days a year, and that he did not operate on a
full 5-day weekly schedule.
Regarding the handrail on the secondary crusher walkway, Mr. Wikel testified that the walkway was not in use and that a chain was installed across it
to prevent anyone from entering it. He abated the citation by removing the

144

handrail and the walkway. He conceded that someone could crawl under the
chain but that they could not step over it.
With respect to the primary crusher ladder citation, Mr. Wikel conceded
that the distance from the ground to the first rung of the ladder was some
30 inches. He also indicated that the crusher itself was a foot higher off
the ground than its tires and that he abated the condition by adding two additional steps which then measured 16 inches to the ground and he took the tires
off the crusher and supported it by blocks. The condition cited resulted
from the crusher being initially higher off the ground than its usual and
normal elevation.
Regarding the lack of an inside handrail on the walkway around the
primary crusher, Mr. Wikel stated that the crusher operator normally stays
in the shanty while the crusher is in operation, leaves the shanty only to
turn the crusher on or off, and he does not use the platform. Regarding the
lack of a barrier or a railing on the operator's platform, he'indicated that
at one time it ~as protected by wooden two-by-fours and windows but that
the windows were broken out by vandals. Mr. Wikel indicated that after
the order of May 25 was issued, the condition was abated by his physically
cutting off the walkway, and that since the walkway no longer was in
existence, the inspector abated the original citation (Tr. 280).
On cross-examination, Mr. Wikel testified as to the efforts made by him
to abate all of the citations issued by Inspector Cloud. He confirmed that
he intended to "go down the list" of all citations and to make corrections
as materials were received for this purpose. He also alluded to the fact
that "we were very busy at the time 11 and that materials required for abatement were often received before abatement work could begin (Tr. 286). He
conceded that he had copies of the regulations available to him but had
never read them "cover to cover" (Tr. 288). He identified a photograph of
the ladderway with the missing rungs (Exh., R-8), and testified as to his
abatement efforts to correct the citation (Tr. 289-295).
Mr. Wikel identified Exhibit R-9 as a photograph of the V-belt pulley
citation, and he indicated that the location of the cited belt is some
7 feet from where the man shown on the ladder is located. In the event the
belt broke, he did not believe that the belt would reach the man on the
ladder because the belt turns at a slow speed (Tr. 300). He conceded that
no time was spent on abating this citation during the period May 4 and 16
(Tr. 300).
With regard to the citation concerning the alleged unguarded head pulley
on the No. 2 belt conveyor, Mr. Wikel identified Exhibit R-10 as a photograph
of the cited pulley location. He testified that a screening plant was located
immediately above the pulley location~ that no one is required to be under the
plant, and that a person would have to crawl under the plant to reach the
pulley location which was cited and that no one would do this (Tr. 312-315).

145

Mr. Wikel conceded that he probably made the statement that he "was too
busy" to abate the unguarded pulley citation, but he believed that it was
impossible for anyone to slip and fall into the pulley and that a person
would have to make a deliberate effort to get caught in the pulley because
the screening plant pretty much completely enclosed the pulley area and in
effect served as a guard (Tr. 316-317). The area beneath the pulley was
exposed for approximately a foot, but someone would have to deliberately
reach under the area to get caught in the pulley (Tr. 317, 321).
and Conclusions
Ruling on Order to Show Cause

On April 5, 1979, Chief Judge Broderick issued an order directing the
respondent to show cause why it should not be defaulted for failure to file
an answer to the petitioner's petition for assessment of civil penalties.
By letter filed April 30, 1979, respondent's counsel answered the show-cause
order and explained the circumstances surrounding the failure by the respondent to respond.to the petition. At the hearing, the parties were afforded
an opportunity to comment further on the show-cause order, and petitioner's
counsel did not object to my ruling that the answer filed on April 30, 1979,
satisfied Judge Broderick's show-cause order and that respondent should not
be defaulted (Tr. 5-8).
Jurisdiction
During opening statements, counsel for the parties raised an issue concerning MSHA's enforcement jurisdiction over the respondent's mining operation. Respondent's counsel was unwilling to stipulate as to the jurisdiction,
and I reserved my ruling on this question pending the completion of the testimony and the filing of posthearing proposed findings and conclusions.
Although given an opportunity to file additional written arguments and briefs,
the parties declined to do so. Accordingly, my
on the jurisdictional
question will be made on the basis of the present record.
The record reflects that MSHA's petition for assessment of civil penalties was filed on November 1, 1978, pursuant to the then-applicable Interim
Rules of the Commission, 29 C.F.R. § 2700.24. The rules, which became
effective March 10, 1978, 43 Fed. Reg. 10320, did not require an allegation
of jurisdiction by MSHA as part of its initial pleadings. However, the current rules, which became effective on June 29, 1979, 44 Fed. Reg. 38226, do
require a jurisdictional statement as part of the proposal for assessment of
civil penalties, and respondent is specifically required to file any denial
of jurisdiction, 29 C.F.R. § 2700.5(a). Since the petition in this case
complied with the applicable rules of the Commission at the time of filing,
I conclude that the failure to include a statement concerning jurisdiction
did not render the petition procedurally defective.
Inspector Cloud testified that upon the effective date of the Act, he
visited several mine operators sometime prior to May 4, 1978, including the

146

respondent, for the purpose of explaining the assessment program and other
provisions of the law. He also indicated that respondent's mining operation had been previously inspected and regulated under the Metal and Nonmetal Mine Act, and that he personally had inspected the facility on four
occasions prior to his May 4th inspection (Tr.38-39). He stated that he
gave all operators within his area of jurisdiction copies of the new Act
during these courtesy visits and explained the law to them (Tr. 67-69).
Mr. Cloud also testified as to the scope of respondent's mining operation, and he stated that approximately four employees were engaged in
activities falling within respondent's mining operations over which he had
jurisdiction. He indicated that the mine consisted of a quarry, a maintenance shop, an office trailer, and a scale house. He observed limestone
being mined at the quarry pit area, and it was transported by a front-end
loader to the crusher during the time of his inspection. He also observed
other equipment such as a shovel and truck operating around the pit area,
observed materials being moved along respondent's plant belt system, and
generally described the operations which were taking place. He also
alluded to a "blacktop" operation being conducted by the respondent on the
premises which did not fall within MSHA's enforcement jurisdiction, however,
the quarry pit,-plant, and crushing operation did fall within his area of
jurisdiction (Tr. 70-73, 81, 123, 133, 147-148, 174-176).
John Wikel, president, Erie Blacktop, Inc., testified that his company
is a family-owned corporation, and that the mine consists of some 20 acres
employing a total of 20 employees, most of whom are involved in activities
connected with his blacktop operations. The limestone mining operation was
operational "once in a while in 1978," and since April of 1980, the crusher
has not been operational. Most of the mined limestone is sold to the Corps
of Engineers for use in shore-erosion projects, and this entails the blasting
of large blocks of limestone. The remaining stone is crushed and sold for
driveways and roadways. It is also used for blacktop driveway projects as
well as a base for roadways and driveways. His company delivers most of the
materials, and while he denied that any of the mined material crosses state
lines, he conceded that the Corps of Engineers used his products for e~osion
projects along the coast lines of the State of Ohio, and that he uses the
telephone as part of his mining operations (Tr. 44-46, July 30, 1980). He
estimated his annual production for the year 1980 to be 100 tons of materials, under 500 tons for the year 1979, and that 25,000 tons of limestone
were mined in the year 1977. The limestone is used to maintain the shorelines and waterways of Lake Erie, and for shore-erosion projects (Tr. 47-48,
236-237, July 30, 1980).
Mr. Wikel also testified that his quarry operation employs four people,
a secretary who handles the scales and the office chores, a loader operator
and a plant operator, including himself and his father. He confirmed that
Inspector Cloud bad previously inspected his quarry prior to the enactment
of the 1977 law. He also confirmed the fact that he had engaged in assessment conferences in the past with MS~A concerning assessments for citations

147

(Tr. 174-179, July 30, 1980). Mr. Wikel also confirmed that his mining operation is 5 years old, and that at the time of the inspection he had been
operating for 2 years, and that prior to the 1977 Act, he had been cited for
two or three violations (Tr. 262, July 30, 1980). He also conceded that he
had ongoing mining operations for the years 1976 and 1977 but that the inspector had never "nailed him" for any violations (Tr. 263, July 30, 1980). He
also confirmed that he began mining as early as 1975, but that the lack of
capital and the expense involved in the purchase of a primary and secondary
crusher prevented them from engaging in a fullscale operation at that time.
He also admitted that "we cut a few corners and it caught up with us" (Tr.
264, July 30, 1980).
Petitioner's Exhibit P-37 is a mine profile indicating that the mine
operated on a one-shift, 8-hour a day basis, employing four people, and that
the operation was an open-pit, single-bench, crushed limestone operation,
and this information remains unrebutted, except for Mr. Wikel's contention
that he was operating at less than full production at the time the citations
issued.
On the basis of all of the aforementioned evidence and testimony adduced
in this proceeding, I am convinced that at the time of the inspection and
issuance of the citations in question, respondent was operating a mine within
the meaning of the Act, that limestone was in fact mined, crushed, processed,
and sold commercially, and that it was used by the Corps of Engineers for
cert!'lin erosion projects on Lake Erie, as well as for road and paving
projects. Although the inspector conceded that respondent's blacktop· business was not subject to MSHA's enforcement jurisdiction, I conclude and
find that the open-pit and quarry-limestone mining operations were in fact
mining within the meaning of the Act, and that these mining operations
"affected commerce." I also take note of the fact that respondent's mining
operations were regulated by MSHA under the Metal and Nonmetal Mine Act, rmd
that respondent had never denied that it was subject to MSHA's enforcement
jurisdiction. Under these circumstances, I conclude that petitioner has
established by a preponderance of the evidence that respondent's mining
operations are subject to MSHA's enforcement jurisdiction, and any suggestions to the contrary are rejected.
Findings and Conclusions
Fact of Violations
Citation No. 359236
Section 109(a) of the Act requires that a conspicuous sign be posted
designating the official mine office. The evidence adduced in this case
establishes that such a sign was not posted, and Respondent has not rebutted
this fact. The citation is AFFIR.."1ED.

148

Citation No. 359237
Section 109(a) of the Act requires that a bulletin board be at the mine
office or located:
[A]t a conspicuous place near an entrance to a mine, and that
it be placed in such a manner that orders, citations, notices
and decisions required by law or regulations to be posted,
may be posted thereon, and be easily visible to all persons
desiring to read ·them, and be protected against damage by
weather and against unauthorized removal.,
The testimony and evidence establishes that the required bulletin board
was not in fact installed in the mine office at a conspicuous place. Although
the respondent had purchased a bulletin board in order to comply with the Act,
it was apparently located on the floor against a desk and had not been
permanently installed on the mine office wall so as to readily facilitate
the posting of the required material. In the circumstances,, I find that a
technical violation occurred and the citation is AFFIRMED.
Citation Nos. 359238 and 359239
These citations allege violations of section 56.11-1 for the failure by
the respondent to provide a safe means of access from both ends of the weighing scales to the trailer which served as the mine office. Access could only
be gained by someone either jumping or taking a broad step from the edge of
the scales for a distance of approximately 3 feet to the entrance doors of
the trailer. The elevated area beneath the opening between the scale and ~he
door entrances was approximately 4 feet to the ground below and the inspector
was concerned that someone could fall beneath the opening while attempting to
step or jump over the areas in question. Although the trailer had doors to
the rear, the inspector did not believe they were used as the regular means
of access to the trailer, and he believed the front doors were used for this
purpose.
Respondent does not dispute the fact that an employee attempting to enter
the trailer from the scales area would have to stride over the open space
between the scales and the trailer door, and Mr. Wikel candidly conceded that
someone attempting to do this could possibly fall into the exposed area and
be injured. The standard requires that a safe means of access be provided
to all working places. Respondent has not rebutted the fact that the mine
office is such a working place, and that the normal means of access was from
the scales, and I conclude and find that the trailer office falls within
the broad definition of "working piace" found in definitions section 56.2,
and I further find that petitioner has established the violations by a
preponderance of the evidence presented in this case. Accordingly, both
citations are AFFIRMED.

149

Citation No. 359240
The citation here charges the respondent with failing to equip a frontend loader with an automatic audible backup alarm. The cited mandatory standard, section 56.9-87, states as follows:
Heavy duty mobile equipment shall be provided with
audible warning devices. When the operator of such equipment has an obstructed view to the rear, the equipment
shall have either an automatic reverse signal alarm which
is audible above the surrounding noise level or an observer
to signal when it is safe to back up.
Inspector Cloud conceded that he did not sit in the operator's seat or
look to the rear of the cab to determine that the view to the rear was
obstructed (Tr. 137-138). He also believed that all Model 988 Caterpillar
front-end loaders, such as the one cited, as a class, have obstructed views
to the rear and that his practice is to always cite section 56.9-87 when he
encounters such equipment without a backup alarm. He conceded that he does
not, as a matte·r of practice, or on a case-by-case basis, make any independent
finding that the view to the rear is in fact obstructed (Tr. 138, 159). He
also alluded to an MSHA directive dealing with the requirements for backup
alarms on front-end loaders, but it was not produced during the hearing (Tr.
160). Respondent testified that since the operator's seat on the end-loader
in question was elevated above the rear-mounted engine, the operator could
observe anyone directly to the rear of the machine through the rearview
mirror. Conceding that the loader had previously been cited by the inspector,
and that one was installed to abate that citation, respondent maintained that
the previous citation was not based on visibility problems, but was based on
the inspector's belief that the law required it anyway (Tr. 230-233).
As I interpret the standard, the first sentence requires audible warning
devices on heavy-duty mobile equipment. The second sentence requires the
installation of an automatic reverse signal alarm which is audible above the
surrounding noise level except that none is required when there is an observer
present to signal when it is safe to back up. In this case, there is no evidence that an observer was present, and the exception does not apply. Therefore, the question presented is whether petitioner has established a violation
even though the inspector did not ascertain whether the rear view from the
end-loader in question was in fact obstructed. I think not. I conclude that
as a condition precedent to proving a violation, petitioner must establish
that the view to the rear was in fact obstructed; if it was not, no automatic
reverse alarm was required.
In this case, it is clear that the citation issued because the inspector
found no operative backup alarm installed on the piece of equipment in question. It is obvious that he was concerned about the lack of a backup alarm
which is normally affixed to one of the rear wheels of the end-loader and
which is activated autonatically when the machine is placed in reverse (Tr.
131), and he conceded that had he observed someone acting as a flagman he

150

would not have issued the citation (Tr. 123). Since there is no evidence
that the inspector established that the view to the rear was obstructed,
I conclude that the petitioner has failed to establish a violation of the
cited standard and the citation is VACATED.
Citation No. 359241
With regard to the lack of a guard on the flywheel of the secondary
crusher, Inspector Cloud initially testified that the flywheel was some
5 feet off the ground and projected out some 4 to 6 inches from the
crusher. He also testified that someone walking around the mill building
would pass by and under the unprotected flywheel location and contact the
exposed flywheel (Tr. 164-165). In describing the physical layout of the
s·econdary crusher, he testified that the crusher and flywheel were mounted
on a flatbed with wheels attached to it and that it is a portable piece of
equipment which can be moved to different locations. However, he could not
remember the width of the crusher or how far the flatbed or wheels extended
out from the sides of the flywheel location (Tr. 200-201). When shown a
sketch of the crusher prepared by respondent's witness (Exh. R-1), Mr. Cloud
stated that he could not remember what it looked like (Tr. 201-202).
In response to questions from petitioner's counsel regarding the physical
characteristics of the secondary crusher in question, Mr. Cloud could not
remember whether the flatbed itself was wider than the crusher which was
mounted on top of it, and he could not remember whether the flywheel itself
or any other parts near it required to be serviced or lubricated (Tr. 216217). He did state, however, that the crusher was only accessible from one
side of the flatbed, and while someone could walk on the elevated platform
on the same side of the crusher, they would not be exposed to the flywheel
because they would be walking above it (Tr. 217).
In response to a question from me as to the theory of citing the respondent for the alleged unguarded flywheel location, Inspector Cloud responded
that he uses a "rule of thumb" rule followed by some of his fellow inspectors
which requires any unguarded piece of equipment within a 7-foot reach of anyone to be guarded (Tr. 212). Petitioner's counsel conceded that "if the evidence shows that this flywheel recessed 5 feet away from the edge of that
flatbed truck, I submit nobody could fall into i t 11 and "then it wouldn't need
to be guarded" (Tr. 228).
In defense of the citation, respondent produced a photograph of the
secondary crusher and flywheel location in question (Exh. R-5). Respondent
does not dispute the fact that the flywheel was not guarded. Its defense to
the citation is based on the fact that someone approaching the exposed flywheel would necessarily have to walk around it to avoid it because of the
extension of the flatbed wheels. Respondent also defends on the basis of
its assertion that the plant was not in full production when the citation
issued and respondent did not believe he was required to guard the flywheel
because no one was around it. These defenses are REJECTED.

151
'"

The critical question in this case is whether or not the exposed flywheel
was located in such a position or location as to expose someone approaching
it to injury if he came into contact with it. Although the inspector could
not remember any of the essential details necessary to enable him to make an
informed judgment and apparently applied his 11 7-f oot rule of thumb" in this
case, the fact is that Photographic Exhibit R-5 clearly shows the exposed
flywheel protruding from the edge of the crusher. Further, while it would
appear that one passing by that location would have to walk around the
flatbed wheels, the fact is that the flywheel was exposed to anyone passing
by its unguarded location and respondent's witness Wikel candidly admitted
that employees were warned to stay clear of it. In these circumstances, I
am constrained to find that petitioner has established a violation in this
case and the citation is AFFIRMED. However, I would urge petitioner to
reexamine the practice of inspectors using their own written "rules of
thunb" and to insure that
fully document all of the circumstances
presented in a given case before automatically concluding that a particular
piece of equipment needs to be guarded.
Citation No. 359242
This citation was issued after the inspector found a portion of the handrail on an elevated walkway at the secondary crusher to be broken and in disrepair. Section 56.11-2 requires that such areas be mainta.ined in good
condition, and, while a handrail was in fact provided, it was not maintained
in good condition, and respondent does not dispute this fact. Respondent's
defense is that the walkway was not in use and was protected by a chain across
it. However, respondent conceded that someone could crawl under the chain and
that it did not prevent anyone from using the walkway. I find that petitioner
has established a violation and the citation is AFFIRMED.
Citation No. 359243
The testimony of the inspector regarding the mis
bottom portions of
the ladderway to the secondary crusher supports a violation of section 56.11-1.
The missing portion prevented a person from readily and easily climbing the
ladder and the missing portion was such as to present a possible mishap while
one was attempting to climb the ladder. Respondent does not dispute the fact
that at least 30 inches of the ladder were missing, and its defense is based
on its abatement efforts. The citation is AFFIRMED.
Citation Nos. 359244 and 359245
These citations were issued after the inspector found that there were no
handrails around the elevated primary crusher walkway or a barrier inside the
open end of a shanty where the crusher operator was apparently stationed while
operating the crusher. The respondent does not dispute the fact that handrails were not installed at the l.ocations where the inspector believed they
should have been, and its defense is based on the assertion that the operator
usually remains in the shanty and only comes out to turn the crusher on and
off. As for the lack of inside barriers, respondent asserts that windows
and wooden framing were previously installed but were destroyed by vandals.

152

Section 56.11-12 requires.that travelways through which men or materials
may fall shall be protected by railings, barriers, or covers. It is clear
from the testimony and evidence adduced in this case that the required protective barriers or railings were not installed so as to protect the crusher
operator or others in the area from falling through the open end of the
shanty or the walkway around the crusher. Although the area inside the
shanty itself is technically not a travelway, the definition of that term as
found in section 56.2 is broad enough to cover the area inside the shanty.
The inspector testified that he considered the area a "travelway 11 even though
he described it as a "platfonn" because the crusher operator and others walk
back and forth along the area (Tr. 90). While I consider this to be a rather
strained interpretation of the standard, I still believe that the intent of
the protective barrier requirement is to prevent someone from walking or
falling through and over the edge of the shanty opening, which in fact was
a rather small and confined area of approximately 6 feet by 6 feet (Tr. 93).
The citations are AFFIRMED.
Citation No. 359246
The inspector issued this citation after he determined that an unguarded
V-belt on the drive motor at the primary crusher was not guarded. He described
the location of the belt as some 3 feet from the crusher ladder, and stated
that the belt was some 4 feet long. His concern was that someone could become
entangled in the belt pinch point and that someone could have been struck by
the belt if it broke.
The cited standard, section 56.14-1, requires that certain exposed moving
machine parts which may be contacted by persons be guarded. The inspector's
rationale in issuing the citation was to protect an employee from reaching
into the exposed pinch point. In this regard, there was much confusion during
the hearing as to the precise location of the cited belt in question. Respondent 1 s witness Wikel produced a photograph of the location of the belt (Exh.
R-9) and he was absolutely sure of its location. On the other hand, Inspector
Cloud was unsure as to the location of the belt and could not state that the
location shown in the exhibit was the belt which he cited (Tr. 306-311).
Having viewed both witnesses on the stand during the course of the hearing,
I find·respondent's witness Wikel to be a credible and straightforward witness
and find his testimony credible and I accept it in support of the location of
the belt in question. Further, after viewing the photograph and reviewing the
testimony of the witnesses, I fail to understand how anyone could come to the
conclusion that someone climbing the ladder depicted in the photograph could
come in contact with the exposed V-belt in question. Accordingly, Inspector
Cloud's reliance on section 56.14-1 is simply not supportable and the citation is VACATED.
With regard to the inspector's assertion that someone could be struck by
the whipping action of the belt in the event it broke, aside from the fact
that I find his testimony in this regard to be less than credible and sheer
speculation, if this was his concern he should have cited the proper standard,
namely, section 56.14-2.

Citation No. 359247
The inspector cited a violation of section 56.14-1 after observing an
unguarded head pulley on the No. 2 belt conveyor. The cited standard
requires that such pulleys which may be contacted by persons and which may
cause injuries to persons be guarded. In support of the citation, Inspector
Cloud first testified that anyone could walk right up to the exposed pulley
and that with loose clothing on could be pulled into the pinch point. He
also testified that there were no obstructions to prevent anyone from
reaching the pulley and that maintenance men, salesmen, and electricians
would be in the area and would be exposed to the obvious hazard (Tr. 130132). However, he could not recall the specific location of the pulley,
the type of material moved on the belt, and could not recall the particular
crusher where the pulley was located (Tr. 137-138), nor could he remember
whether the conveyor had a lock-out device (Tr. 145).
Respondent's witness Wikel identified a photograph (Exh. R-10) as the
conveyor belt cited by the inspector and he stated that Inspector Cloud was
in error when he identified it as a head pulley. Mr. Wikel stated that the
pulley was in fact the tail pulley and he conceded that it was the location
which concerned the inspector (Tr. 312-313). Mr. Wikel described the pulley
location and indicated that a screening plant extended beyond the unguarded
pulley, and stated that someone would have to crawl under the screening
apparatus to reach the pulley (Tr. 314). He also testified that the pulley
was practically totally enclosed by the screening plant and he believed
that it served the function of a guard since anyone crawling under the
plant would have to reach in and under a 1-foot opening to contact the pulley (Tr. 316-317).
When called in rebuttal, Inspector Cloud stated that he could not recall
whether a screening plant was installed at the pulley location in question,
but he has observed similar screening plants attached to pulleys such as the
one in question (Tr. 318). After viewing Photographic Exhibit R-10, Inspector
Cloud conceded that one would have to reach under and upward over the screening
plant to contact the pulley, expressed serious doubt that anyone sttnnbling or
near the pulley location would come in contact with it, and indicated
that no one would have any reason to be near the pulley location (Tr. 323).
Upon careful review and examination of the inspector's testimony in support of the citation, I cannot conclude that petitioner has proved a case.
This is a classic example of the failure by an inspector to completely
document his observations made at the time of the issuance of the citation
so as to clearly and concisely support it if challenged later during a contest. Here, the inspector first testified that anyone casually walking by
the exposed pulley could contact it and be pulled in by the action of the
pulley catching on loose clothing. When confronted with the respondent's
testimony and photograph of the pulley location in question, which I find
credible, the inspector changed his position and testified that no one
would have any reason to be near the pulley and even if he were it was
highly unlikely that he would contact the pulley which was apparently

154

obstructed by a screening plant installed over most of it.
is VACATED.

The citation

Gravity
Citation Nos. 359236 and 359237 concerning the bulletin board and mine
sign are nonserious violations and the inspector conceded this was the case.
With regard to the safe access citations, Nos. 359238 and 359239, I conclude
and find that these were serious. Failure to provide an easy and safe ramp
for one to cross from the scales to the trailer which served as the mine
office presented a hazard to anyone attempting to negotiate the open space
between the two, particularly to the secretary whose day-to-day duties were
in the office. Further, respondent conceded that it was possible for someone to slip and fall and be injured while attempting to stride or cross over
the area in question.
With regard to the unguarded flywheel, Citation No. 359241, while it
is true that one would have to walk around the flatbed to come into close
proximity of the exposed unprotected and rather large flywheel, the fact is
that respondent seemingly recognized the potential hazard involved since
respondent had warned its employees to stay clear of the flywheel. While
it may also be true that at certain periods when the crusher was down for
lack of production, the exposed flywheel posed no hazard, it nonetheless
remained unguarded during periods when production was going on. In these
circumstances, I find that this violation was serious.
With regard to the handrail and ladder citations, Nos. 359242, 359243,
359244, and 359245, I find that all of these were serious violations. The
defective railing which was corrected by being rewelded was in disrepair and
not securely in place. Anyone walking by and grabbing the rail would have
nothing secure to hold onto, and any chain which may have been in place
would not have prevented one from entering the area. As for the lack of
a barrier or railing at the exposed end of the crusher shanty, the inspector
testified that the crusher was operating when he observed the condition and
that the crusher operator was in the shanty. Although it may have been
improbable that he would have walked off the exposed edge and fallen to the
ground below, the area in question was rather confined and did present a
hazard. The same could be said for the lack of a railing outside the
shanty and along the travelway by the crusher. Failure to provide a
railing at that location presented a hazard to the crusher operator. The
missing bottom portion of the ladder which was cited made it difficult for
one to
up and grab the ladder handrail and presented a possible slip
and fall hazard. Further, while the testimony presented reflects that
respondent's plant may have been out of production during certain periods
of time, the fact is that when the conditions were cited by the inspector
the crusher and plant were in production and respondent has not rebutted
this fact.

155

Good Faith Compliance
Inspector Cloud agreed that the citations concerning the bulletin board,
office sign and the lack of safe access to the mine office were all abated
in good faith. Although the citations show May 11, 1978, as the time fixed
for abatement, the inspector's next opportunity to return to the mine site
was May 16, 1978, and that is when he terminated the citations after finding
that the conditions cited had been abated (Tr. 118). Accordingly, as to
Citation Nos. 359236, 359237, 359238, and 359239, I conclude and find that
respondent exercised good faith in achieving compliance with the requirements
of the law and regulations cited.
With regard to Citation Nos. 359241, 359242, 359243, 359244, and 359245,
the record reflects that they were all initially issued on May 4, 1978, and
that Inspector Cloud fixed May 11, 1978, as the da~e for the abatement of the
conditions cited. The subsequent withdrawal orders were all issued on May 16,
1978, when Inspector Cloud returned to the mine and found that the conditions
cited had not been corrected. In view of the fact that none of these citations were corrected, Mr. Cloud did not believe that the respondent acted in
good faith to achieve compliance.
Mr. Cloud testified that when he returned to the mine on May 16, 1978,
Mr. John Wikel advised him that he had been "real busy 11 and had not started
on any repair work in connection with the outstanding citations, and after
conducting a spot inspection he issued seven noncompliance orders. Mr. Wikel
advised him at that time that the plant had been shut down for maintenance
and that it was being tested rather than in full production. However,
Mr. Cloud stated that 'he observed some muck and materials at the end of a
conveyor belt and he determined that the plant was in operation and in
production and that is why he issued the withdrawal orders (Tr. 175-176,
July 29, 1980). Mr. Cloud also stated that Mr. Wikel did not produce any
purchase orders indicating that any materials required for abatement had
been purcha·sed or ordered and simply told him that "they had been too busy"
and his notes confirmed this statement (Tr. 178).
Mr. Cloud testified further that he returned to the mine subsequent to
May 16, 1978, and believed that it was within the "next 60 days." At that
time, he was advised that the plant was not in operation, conducted no further
inspection and left the property (Tr. 182). He returned again several times
during the next 30 days and was again told that the plant was still not in
operation and each time he left without conducting additional inspections (Tr.
183). However, he later testified that when he returned to the mine on
May 25, 1978, he inspected the mine and abated five of the outstanding
orders after determining that the conditions had been abated, but he could
not recall which two remained outstanding (Tr. 193).
The broken handrail on the secondary crusher was corrected by welding it
back in place and the inspector terminated the order on May 25, 1978 (Tr. 15,
July 30, 1980). The missing bottom rungs of the access to the crusher were
corrected and that order was also terminated on May 25 (Tr. 65).

156

Regarding the handrail on the walkway and platform on the crusher, the
inspector testified that it was not corrected on M:ay 25, and that he subsequently abated the order on August 17, after repairs were made (Tr. 71).
He also indicated that a piece of pipe and several posts were all that were
required to make repairs, and assuming the materials were available, he
believed the condition could have been corrected in a matter of hours (Tr.
70), but he had no way of knowing whether the condition may have been
corrected prior to August 24 (Tr. 71). He also confirmed that Mr. Wikel
advised him that the crusher had not been in operation from May 16 to May 25
(Tr. 73). As for the exposed end of the shanty which was not guarded by a
handrail or barrier, that condition was not abat~d on May 25, but
Mr. Cloud subsequently terminated the order on August 17 when he found
that repairs had been made (Tr. 80).
Mr. Cloud testified that his next visit to the mine was on September 11,
1978, but he could not state whether the two outstanding orders had been
abated. Moreover, he did find that a guard for the flywheel for the
secondary crusher was not in place but was lying in a muck pile (Tr. 196).
Petitioner's counsel conceded that he considered this incident as evidence
that a guard.had been constructed and does not establish noncompliance
with the original citation (Tr. 197). As a matter of fact, respondent
produced an original copy of the termination of the flywheel citation
and order and it shows that the order was terminated by Inspector Cloud
on May 25, 1978 (Exh. R-2).
Mr. Wikel stated that the reason the broken handrail on the secondary
crusher was not repaired on May 16 was that the crusher was inoperative and
the fuses were out and the motor was off. ·Under the circumstances, he did not
believe he had to make the repairs since the crusher was inoperative. He
advised the inspector that the crusher was down and the inspector advised
him that it made no difference (Tr. 48-49, July 30, 1980). As for the
purported statement made to the inspector that respondent was "too busy"
to make the
rs, Mr. Wikel denied making them and stated that if they
were made they were probably attributable to his father (Tr. 259). However,
he also stated that during the time period in question, "it was very possible
that we were too busy" (Tr. 261), and he went on to explain that all of his
efforts were directed to his blacktop business and that the stone quarry
end of the business was still in its infancy and new equipment was being
purchased and installed (Tr. 262-265).
Respondent's witness Wikel testified that very little mining of materials
took place in the years 1977 and 1978, and conceding that abatement may have
taken as long as 60 days, Mr. Wikel attributed the delays to the fact that the
crusher and plant were idle and out of production, and he did not believe that
any violations could have occurred during these periods because of his belief
that inspectors have no authority to inspect his operation when he is not in
production (Tr. 235-239, July 30, 1980). He candidly conceded that some of
the citations were not corrected until after May 25, and stated "to be honest
with you, I guess I must have been out in left field some place, I felt we
didn't operate, and I didn't see the safety factor" (Tr. 249). He also

157

stated that he decided to shut the operation down because he was unable to
abate all of the citations on time and stated that the inspector did not
discuss any abatement times with him and simply advised him that he "wasn't
the Judge" (Tr. 251-252).
While it is true that the respondent failed to abate five of the citations within the time fixed by the inspector, the fact is that all of the
cited conditions were ultimately corrected and the citations terminated.
While failure to abate within the time fixed by the inspector would normally
support a finding of lack of good faith on the part of the respondent, I
conclude and find that the circumstances surrounding the citations in
question as discussed above do not warrant any substantial increases in
the penalties assessed by me simply because respondent failed to abate
within the time initially fixed by Inspector Cloud. I cannot conclude that
respondent is a reckless or irresponsible mine operator who deliberately
sought to avoid compliance. While it is true that respondent was dilatory
in achieving compliance precisely within the timeframe initially fixed by
the inspector, the fact is that for the most part the inspector did not
discuss abatement with the mine operator, made his own judgments in this
regard, and even though he admitted that mine management had advised him
that the plant was out of operation and nonproductive on several occasions
when he returned to the mine, the inspector nonetheless sought to rely on
the standard "too busy" excuse as the basis for his opinion that the
respondent exhibited a total lack of good faith in achieving compliance.
In addition to the foregoing, I cannot ignore the fact that the record
in this case supports a conclusion that there was a strained relationship
hetween the inspector and mine management during the time periods in question,
and this continued during the course of the hearing and was personally
observed by me through the observations of the demeanor of the inspector as
well as mine management during their testimony. It seems to me that voluntary
compliance with the law can best be achieved through an atmosphere of mutual
cooperation between an MSHA inspector and mine management rather than through
continued adversary confrontations between the parties and I would hope that
MSHA as well as mine management will consider this in any future encounters.

During the course of the hearing, petitioner's counsel conceded that the
circumstances concerning the citations in this case do not suggest flagrant,
deliberate, or reckless disregard for safety, and counsel candidly admitted
that it was altogether possible that the plant was in fact closed down and
the equipment was not used after the withdrawal orders were issued (Tr. 59,
81). Further, after careful review and consideration of all of the testimony
concerning the abatement of the citations in this case, I cannot conclude that
the respondent was grossly negligent in failing to correct the conditions
cited. To the contrary, I conclude and find that the citations which have
been affirmed resulted from the failure by the respondent to prevent or
correct the conditions which he should have been aware of, and its failure
in this regard constituted ordinary negligence as to each of the citations
in question.

158

Size of Business and Effect of Civil Penalties on Respondent's Ability to
Remain in Business
The testimony and evidence adduced in this case supports a finding that
respondent is a very small family-owned mine operator. The parties stipulated
that any penalties assessed in this case will not adversely affect respondent's
ability to remain in business and I adopt this as my finding on this issue.
History of Prior Violations
The parties stipulated that the respondent has no prior history of violations and I adopt this as my finding on this question and I have considered
this in the assessments levied for the citations in question.
Penalty Assessments
On the basis of the foregoing findings and conclusions, and taking into
account the requirements of section llO(i) of the Act, I conclude and find
that the following civil penalties are reasonable and appropriate in the
circumstances and they are imposed by me for each of the citations which
have been affirmed:
Citation No.

Date

30 C.F.R. Section

359236
359237
359238
359239
359241
359242
359243
359244
359245

5/ 4/78
5/ 4/78
5/4/78
5/ 4/78
5/ 4/78
5/4/78
5/4/78
5/ 4/78
5/ 4/78

109(a)--Act
109(a)--Act
56.11-1
56.11-1
56.14-1
56.ll-2
56.11-1
56.11-12
56.ll-12

Assessment
5
5
40
40
125
50
25
125
125
$540

$

On the basis of the foregoing findings and conclusions, the following
citations are VACATED:
Citation No.

Date

359240
359246
359247

5/4/78
5/ 4/78
5/ 4/78

30 C.F.R. Section
56.9-87
56.14-1
56.14-1
ORDER

The respondent IS ORDERED to pay civil penalties in the amounts shown
above, totaling $540 within thirty (30) days of the date of this decision
and order, and upon receipt of the same by MSHA, this matter is DISMISSED.

tJJ;r,/~fl/J,, ~~
v(}lot
8ej~· lioutras
Administrative Law Judge

159

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
James E. McGookey, Esq., Meuhlhauser, Lucal & Pfefferle, P.O. Box 790,
Sandusky, OH 44870 (Certified Mail)

160

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

JAN

9 f881

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

Civil Penalty Proceedings
Petitioner

v.
OLIVER M. ELAM, JR., COMPANY, INC.,
Respondent

Docket Nos. VINC 78-447-P
VINC 79-12-P
VINC 79-40-PM
VINC 79-176-P
VINC 79-177-P
VINC 79-231-P
LAKE 79-11
LAKE 79-110
LAKE 79-281
Elam Dock

DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor, U.S. Department
of Labor, Cleveland, Ohio, for Petitioner;
William H. Jones, Jr., Esq., Ashland, Kentucky, for Respondent.

Before:

Judge Lasher

This proceeding arises under section lOS(b) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held in South Point,
Ohio, on July 24, 1980, at which both parties were represented by counsel.
After considering evidence submitted by both parties and proposed findings of
fact and conclusions of law proferred by counsel during closing argument, I
entered an opinion on the record. 1/ My bench decision containing findings,
conclusions and rationale appears below as it appears in the transcript, 2:._/
other than for minor corrections.
These proceedings arise upon the filing of petitions by
the Secretary of Labor for assessment of several (16) penalties in the nine dockets involved. The Respondent raised
a jurisdictional issue in its answer which subsequently has
crystalized into this question: "Whether or not Respondents
docking facility is a 'coal or other mine', as that term is
defined in the Mine Safety and Health Act of 1977? 11 [30 U. S.C.
§§ 802(h)(l) and 802(h)(2)].

1/

Tr. PP• 68-76
Transcription of the hearing was performed by a new reporter necessitating substantial correcting of the record.

2.J

161

Section 802(h)(l) of the Act defines coal or other mine
for the purpose of the Act generally. Section 802(h)(2)
defines coal mine for purposes of titles II, III, and IV of
the Act and I note specifically that title II thereof provides for various detailed statutory health and safety
standards, in addition to the foregoing definition. The
definition of "Work of preparing the coal", as provided in
section 802(a) of the Act provides the statutory language
which is to be interpreted in this proceeding. The parties
have provided a stipulation which has placed into evidence a
record of the answer of the Respondent to interrogatories
propounded by Petitioner. In addition, the evidence and
record consist of four photographs introduced by Respondent
which show various activ~.ties being carried on at the Respondent's commercial dock some three years ago. In addition,
the testimony of Inspector Thomas Luce was received on behalf
of MSHA and the testimony of superintendent David Manning and
Oliver M. Elam, Jr., president of Respondent, were received.
The above, in addition to the official case file, constitutes
the evidence and record upon which the prime jurisdictional
issue is to be decided.
The Respondent is a small family corporation which does
business as a commercial dock at Coal Grove, Ohio, in the
vicinity of Ashland, Kentucky, and Ironton, Ohio. The
Respondent has 11 employees who work interchangably between
the dock and the construction .aspect of the Respondent which,
in essence, is an equipment rental business involving some
50 pieces of construction equipment including cranes, trucks,
and bull dozers. Respondent usually has three of these
employees present at its commercial docking facility on the
Ohio River. The Respondent loads some 300,000 tons of coal
during its busiest years and during the last two years has
loaded approximately 200,000 tons of coal at this dock. In
addition the docking facility loads other materials such as
steel ingots, pipe, and the like, at this docking facility
and the percent of tonnage loaded on to barges at this docking facility attributal to coal ranges from approximately
40 to 60 percent. Additional material is processed through
the docking facility in a reverse direction, that is material
is brought to the facility by barges from whence it is processed through the dock and loaded on to the trucks for
delivery to its ultimate destination. The dock facility is
utilized to unload tar pitch, which is a coal derivative and
which is directly loaded from the loading bin on to barges
without the use of a crusher which (itself) is part of the
system of movement of material at the dock.
With respect to coal, Respondent does business with coal
brokers, some four or five in number, who are not coal mine

162

operators and who arrange with Respondent to receive delivery
of the coal on Respondent's premises and arrange with Respondent to load the coal on barges to deliver the coal to such
customers as power plants and factories elsewhere.
Respondent has no business arrangements, contracts, or
dealings directly with the coal mine operators who initially
extract the coal nor does it have any arrangement with the
customers who ultimately accept delivery of the coal off the
barges at the point of the ultimate destination of the coal.
The contract between the coal brokers and Respondent is not
in writing and it does not have as any part of its basis an
agreement by Respondent to crush the coal. The coal is
indeed crushed by Respondent as part of its movement of the
coal from the place on the premises where the coal is
initially stockpiled to the barges. I find on the basis of
the evidence that the only purpose the coal is crushed is
for the Respondent's ease of loading. Stated another way,
the Respondent crushes the coal in furtherance of its own
business as a loading dock and as an accomodation to itself
to avoid the problems raised (1) by coal falling off the conveyor belt and (2) by large pieces of coal falling into the
loading bin which would necessitate going into the bin and
manually breaking up the coal so that it can be expeditiously
transported by another conveyor belt on to the barges. It
also appears from the interrogatories submitted as part of
this record that crushing the coal enables a larger amount of
the same to be placed in a given space on the barges. Since
Respondent is paid on the basis of so many dollars per ton I
would infer from this record that it would be economically
feasible for Respondent to load as much coal as possible on
to each barge. There is no evidence that Respondent. contracts
to either wash, dry out, or size coal. Respondent contracts
with coal brokers only to accomplish the loading of coal
delivered to its premises by trucks on to barges and perhaps
on occasions to accomplish the reverse process of unloading
material from barges and loading on to trucks.
For purposes of this proceeding, the evidence indicates
that the coal is first delivered to Respondent's premises by
trucks which unload the same in stockpiles located on Respondent 1 s premises. The coal goes into a bin where it proceeds
ultimately on to a conveyor which delivers it to a crusher
which is approximately 5 feet wide, 6 feet long, and 6 feet
high. I note that at one point the inspector indicated that
its measurements were 6 feet in each of the three respects.
The crusher does not have screens or grates which are customarily used to size the coal and the crusher used by
Respondent is an American Ring Crusher which breaks the coal
essentially into one size after which the coal moves on a

163

conveyor belt on to a barge. The first conveyor belt
described in this process is 35 feet long, and it leads from
the bin to the crusher. The second conveyor belt from the
crusher to the barge is approximately 150 feet long. While
the size of the coal so crushed by Respondent may be acceptable to power plants or perhaps other ultimate users of the
coal as an energy source, there is no indication that this
is part of the business service which Respondent sells to
anyone, that is, the coal brokers, the coal mine operators
who extract the coal in the first place, or the ultimate
consumers thereof.
In addition to the coal, the only other material which
Respondent receives, processes, loads, or unloads at its
docking facility having any relevance to the. question of
whether or not it is a coal mine is tar pitch. This tar
pitch is delivered to Respondent's premises in the form of
a pellet and is dumped directly into the bin from which it
goes directly on to the barge without being moved through the
crusher. It is clear that no coal is crushed which is not
put on barges and only on one occasion in furtherance of a
special contract with a glass company, was any uncrushed coal
loaded onto barges at Respondents dock. The Respondent,
which I would interject here, is a Kentucky Corporation, does
not mine coal nor does it or any of its stockholders or officers own any mineral interest. Nor does it purchase coal for
resale as a coal broker. At the dock, the Respondent does
not furnish equipment, such as the front-end loader, for
handling of coal. The coal is handled and weighed by
employees of the various brokers.
Respondent has been engaged in this process of loading
coal since approximately 1975. It has operated the commercial
dock, however, unloading other materials, since 1966. The
facility for loading coal previously described was put in in
1975 and the crusher was an integral part of this system from
the beginning. The system was originally put in because a
company in West Virginia, described by Superintendent Manning
as a group of attorneys, wanted a place to load coal. After
Respondent installed the loading system, the arrangement fell
through and a year and a half elapsed during which time the
crusher and the other coal loading system was not utilized.
Ultimately, Respondent, which initially wanted to lease this
facility, went into the business of loading coal.
To repeat for the purpose of clarity, Respondent is not
paid to crush coal, to store it, to wash it, to dry it, or to
size it. Respondent's employees are not represented by
United Mine Workers of .America or any other union, and these

164

employees are esentially engaged in all the duties and
responsibilities invoked by the Respondents construction
business and it's commercial loading business.

On the basis of the foregoing, I concude that the crushing of coal, as well as the storage of coal, on Respondent's
premises are clearly incidental to its only function of loading this coal on barges. If Respondent is engaged in the
crushing of this coal and using its loading business as a
guise to mask it's doing business as a coal preparation plant,
it is certainly carrying this out with a great degree of
success. I find no evidence whatsoever that this is the
case. This is bolstered by the fact that at Respondent's
facility during the movement of the coal from the stockpiles
to its final unloading point on the barge, there are no
screens or grates which would size the coal or remove the
impurities. Such would also be necessary to "blend" coal for
special purposes.
The statutory definition of coal or other mine obtained
in section 802(h)(l) of the Act contains three concepts. The
first concept provides that a coal mine is an "area of land
from which minerals are extracted in non-liquid form." The
second concept provides for the inclusion of "Private ways
and roads pertinent to such area." (This) refers back to the
first definition which specifies that it's a given area of
land from which minerals are extracted. The third concept
refers to "lands, excavations, underground passage ways,
shafts, slopes, tunnels and workings, structures, facilities,
equipment, etc., on the suface or underground, used in either
the work of extracting such minerals from their natural
deposits used in either "the milling of such minerals or the
work of preparing coal or other minerals, and includes custom
coal preparation facilities." As indicated by MSHA's counsel,
the question narrows to whether or not this Respondent is
engaged in the work of preparing coal. The definition contained in section 802(h)(2) of the Act-which is confined to
the purposes of titles II, III, and IV of the Act-is similar
to that contained in the third concept of section 802(h)(l).
After studying the same I conclude that again the same question arises, that is, whether or not the impact which Respondent's dock facility places upon the coal which is delivered
there constitutes the work of preparing the coal so extracted.
Section 802(i) defines the work of preparing the coal as,
"The breaking, crushing, sizing, cleaning, washing, drying,
mixing, storage, and loading of bitumonous coal, lignite, or
anthracite and such other work of preparing such coal as is
usually done by the operator of the coal mine."

165

First off, to state the obvious, it is clear that Respondent is not engaged in the extraction of coal, either undergrund or by strip mining, nor is its business purpose to
prepare coal or to perform any of the functions which would
be involved in preparing coal such as washing it, extracting
the impurities, crushing it, sizing it, blending it, and the
like. A contention and point made by MSHA is that the coal
industry is "pervasively regulated." I do not construe this
phrase to mean that all businesses which store or crush coal
come within the purview of the Mine Safety and Health Act.
For example, does the business which makes coal figurines or
art objects become a coal mine because it stores coal or
changes the size of the coal? Does a factory or other business
which uses coal as a fuel, and which performs various physical
functions on the coal, such as washing the coal, breaking the
coal up, sizing the coal, and the like, become a coal mine?
I do not think so.
In order to accept the position of MSHA
in this case and conclude that the commercial dock facility
of the Respondent is a coal mine, the basis would have to be
acceptable that the physical functions performed on the coal
such as crushing, storage, loading, and the like, (alone)
establish a business entity as a coal mine. I find that the
reading of the statutory definition by MSHA in this case is
hyper-technical. It represents a colillllon fallacy in reasoning.
To give an illustration, one may say a housecat is a four
legged animal with two eyes and a tail, and an elephant is a
four legged animal with two eyes and a tail; (that) some cats
are gray, and some elephants are gray; and that accordingly,
cats are elephants. * * * The fact that some person or
business entity loads coal and stores coal and crushes coal
and the fact that a coal mine may do the same thing, does not
automatically make that person or business a coal mine. I
have considered the excellent brief of MSHA in support of
its motion for partial summary judgment in this matter
wherein are cited numerous cases. Most of the cases cited,
however, involved mine operators actually engaged in the
removal of the coal from its place in the ground.
I find the storage and crushing of coal by Respondent is
purely incidental to it's engagement in an enterprise entirely
unrelated to coal mining, and that Respondent does not come
within the definition of a coal mine as that term is defined
in the Act. Respondent's operation is to be distinguished
from the situation where a coal mine operator actually engaged
in extraction, milling or preparing coal as an integral part
of its operation on the same premises (or on contiguous land)
engages in the storage and crushing of coal. This finding, of
course, does not leave the Respondent without safety and
health obligations since the decision only relates to the jurisdiction of OSHA and MSHA. * * *

166

As counsel for Respondent has pointed out, and I believe
rightfully, the question is where the line should be drawn.
There appear to be three physical phases which must be considered. ·The first being the actual mining or extracting of
the.mineral from the ground; the second being the shipment of
the coal from the premises where it is mined or to the place
where it is consumed, and, third, the final destination or the
point of consumption by the users of the products. In this
case there is no business ownership, contractual relationship
or any other connection between this commercial dock enterprise and the first phase, that is, the extracting of the
mineral from the ground or the milling phase. I believe the
line should be drawn at that point. I thus find that Respondent is not covered by the Federal Mine Safety and Health Act
of 1977, since it is not a coal mine. I therefore order that
all the citations contained in the nine dockets involved
herein, there being 16 such citations or orders, be vacated.
There being no merit to MSHA's petition, these nine proceedings are dismissed.
The Government's position and the Respondent's position
very well presented by both counsel who did, I believe
an above-par job of representing their clients in these proceedings. This case ultimately will become an important case
for the Commission to decide with respect to jurisdiction.

wer~

ORDER
The 16 citations contained in the nine dockets involved herein are
VACATED.

Michael A. Lasher, Jr., Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 1240 E. 9th St., Rm. 881, Cleveland, OH 44199 (Certified
Mail)
William H. Jones, Jr., Esq., 1416 Winchester Avenue, Ashland, KY
41101 (Certified Mail)

167

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

JAN 1 2 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. YORK 79-99-M
A.C. No. 30-00013-05003

Petitioner

v.
South Bethlehem Quarry and Mill
CALLANAN INDUSTRIES, INC.,
Respondent
DECISION
Appearances:

William G. Staton, Esq., Office of the Solicitor,
U~S. Department of Labor, for Petitioner;
Harry R. Hayes, Esq., Albany, New York, for
Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. § 801 et seq., the "Act"), alleging four violations of mandatory standards. The general issues are whether Callanan Industries, Inc.
(Callanan), has violated the regulations as alleged in the petition filed
herein, and, if so, the appropriate civil penalty to be assessed for the
violations.
I.

Contested Citations

Citation No. 204924 charges a violation of the mandatory safety standard
at 30 C.F.R. § 56.5-50, specifically alleging that the employee operating the
Ingersoll type CM-2 air track drill, was exposed to 660 percent of the permissible level of noise. According to the charges, personai hearing protection (ear muffs) was being worn but feasible engineering or administrative
controls were not implemented to eliminate the need for such protection. The
citation was issued on September 18, 1978, and the operator was given until
October 13, 1978, to abate the condition cited. On June 8, 1979, a section
104(b) withdrawal order */ was issued req~iring that the cited drill be withdrawn from service because "no apparent effort was made by the operator to
implement feasible engineering or administrative controls to protect the
employeeu while operating the drill. The drill was thereafter withdrawn from

*I Withdrawal orders are issued pursuant to section 104(b) of the Act only
after a violation has been cited under section 104(a) and has not thereafter
been timely abated.

168

service. The validity of this withdrawal order is not in itself at issue in
this civil penalty proceeding. Insofar as the order concerned a failure to
abate the cited violation, however, it may be relevant evidence under section llO(i) of the Act in determining the amount of any penalty.
There is no dispute that the cited drill emanated noise levels above
those permitted by the cited regulation, and indeed, that the drill emanated
noise at 660 percent of the exposure permitted by that regulation. Callanan's
principle defense rests upon subsection (b) of the cited regulation which provides in part as follows: "When employees' exposure exceeds that listed***,
feasible administrative or engineering controls shall be utilized. If such
controls fail to reduce exposure to within permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within
the levels of the table." MSHA contends that feasible engineering and admini~trative controls existed which the operator failed to implement.
Callanan
maintains on the other hand that the proposed engineering controls are not
feasible, emphasizing that such controls are not economically viable under
the circumstances.
In determining the feasibility of the proposed engineering controls, MSHA
concedes that bQth technological and economic considerations are relevant. The
term 11 feasible 1 ' as used in a similar noise standard promulgated in regulations
under the Occupational Safety and Health Act (29 C.F.R. § 1910.95(b)(l)) has
been judicially construed to include economic feasibility. RMI Company v.
Secretary of Labor, et al., 594 F.2d 566 (6th Cir. 1979); Turner Company v.
Secretary of Labor,, 561 F. 2d 82 (7th Cir. 1977). In determining such
feasibility, the court in RMI approved of the cost-benefit analysis employed
by the Occupational Safety and Health Review Commission (OSHRC) in the case
of Continental Can Company, 1976-1977 CCH OSHD , 21,009, 4 BNA OSHC 1541
(1976). The OSHRC stated therein:
[T]hat the standard should be interpreted to require those
engineering and administrative controls which are economically as well as technically feasible. Controls may be
economically feasible even though they are expensive and
increase production costs. But they will not be required
without regard to the costs which must be incurred and the
benefits they will achieve. In determining whether controls
are economically feasible, all the relevant cost and benefit
factors must be weighed. [Citations omitted.]
In setting forth a general test to be followed in determining economic
feasibility, the court in RMI stated as follows:
The benefits to employees should weigh heavier on the
scale than the cost to employers. Controls will not necessarily be economically infeasible merely because they are
expensive. But neither will controls necessarily be economically feasible merely because the employer can easily (or
otherwise) afford them. In order to justify the expenditure,

169

there must be a reasonable assurance that there will be an
appreciable and corresponding improvement in working conditions. The determination of how the cost benefit balance
tips in any given case must necessarily be made on an ad hoc
basis. We do not today prescribe any rigid formula for conducting such analysis. We only insist that the Secretary,
and the OSHRC on review, weigh the costs of compliance
against the benefits expected to be achieved thereby in
order to determine whether the proposed remedy is economically feasible.
RMI, supra at pages 572-573. I find this test to be relevant and reasonable
and in the absence of precedent from the Mine Safety and Health Review Commission I find it appropriate to adopt to the facts of this case.
The court in RMI, again citing OSHRC decisions on point, further concluded that the Secretary has the burden of proving both the technologic
and economic feasibility of the proposed controls in showing that a violation of the noise standard has occurred. RMI, supra at p. 574. See also
Administrative Procedure Act, section 7(d)-:-S U.S.C. § 566(d),
Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978). I find similarly that
MSHA has that burden here. MSHA in this case did indeed go forward with its
evidence in this regard in its case-in-chief.
The precise question before me then is whether MSHA has met its burden
of proving the feasibility of the controls proposed in this case. I find t~at
it has not. I am not satisfied, first of all, with MSHA's cost estimate for
the proposed engineering controls. While superficially the estimate of
$2,672.78 does not appear to be unreasonable or unacceptable, upon closer
examination I find that that estimate is too imprecise to allow a proper
economic analysis. The estimate did not include the cost of a muffler,
certain labor costs and the cost of transporting the sub
drill between
upstate New York and Joplin, Missouri, where the proposed retrofitting was
to be done. Without more accurate figures, a true cost-benefit analysis cannot
be made.
In any event, regardless of the accuracy of MSHA's cost estimates, I do
not find on the facts of this case any reasonable assurance that there would
be an appreciable and corresponding improvement in working conditions as a
result of the proposed controls. RMI, supra, pages 572-573. While the manufacturer of the subject drill, the Ingersoll-Rand Equipment Corporation,
indeed concluded that it could not be muffled at all, even MSHA's expert conceded that he did not know what specific degree of noise reduction could be
achieved from his proposed controls and could only speculate that a 5-decibel
improvement might be expected based on MSHA's experience with muffling other
types of drills. He further conceded that Callanan's drill would not, even
after the proposed alterations, meet permissible noise levels but that Callanan
would still be required to implement additional administrative controls the
feasibility of which I also find suspect. The expert based his conclusions on

170

the assumption that the ~rill operator would not even occasionally be required
to work near the drill--an assumption that is not supported by the credible
evidence. Thus, even after the suggested engineering controls would have been
implemented at substantial cost, Callanan's employees would nevertheless still
have no doubt been required to wear personal hearing protection while operating
the drill. Thus the benefits of the proposed controls, if indeed there be
any, remain highly speculative. There is clearly no reasonable assurance that
the thousands of dollars MSHA would have Callanan spend for the proposed controls would realistically produce any corresponding improvement in working
conditions. Under the circumstances, I find that MSHA has failed in its burden
of proving the feasibility of the proposed controls.
Inasmuch as personal protection equipment (earmuffs) was admittedly being
utilized by the exposed employee in this case and since the uncontradicted
evidence from the tests performed by Doctor Iandoli, an audiologist from the
Albany Medical Center, demonstrates that the sound levels within the employee's
muffs would under ordinary operating conditions be within that set forth in
the relevant tables, I conclude that there has been no violation of the standard.
Citation No. 204924 is therefore vacated.
Citation No. 205343 charges one violation of the standard at 30 C.F.R.
That standard requires that equipment defects affecting safety be
corrected before the equipment is used. Here it was charged that the automatic reverse signal alarm on the company's No. 2 haul truck was not operating. Callanan concedes that the backup alarm was not functioning as
alleged but claims that the truck driver found the backup alarm to have
been working properly before the truck was used that morning and, therefore,
argues that there was no violation. Under this construction of the standard,
if defects affecting safety are discovered after the equipment is being used
then there is no violation. I reject such a strained and restrictive construction of the standard. It is clearly contemplated by that standard that
defects affecting safety which occur during the course of equipment operation
must also be corrected before the equipment is used any further.
§ 56.9-2.

I find that Callanan was only slightly negligent, however, in failing
to detect the faulty alann here. Truck drivers had been instructed to check
the functioning of the alann at the beginning of each shift and at lunchtime
and were paid a bonus to do so. The alarm cited in this case had been functioning at the beginning of the shift that morning. No one seems to know
when it ceased to function and it could have stopped only moments before
detection by the inspector. Callanan immediately took the truck out of
service and paid an employee overtime to correct the condition. I find from
the credible evidence that there was only minimal employee exposure to the
anticipated hazard but injuries from a truck backing into an employee could
of course be fatal.
Citation No. 205347 charges one violation of the standard at 30 C.F.R.
56.14-35. That standard prohibits the lubrication of certain machinery
while it is in motion unless it is equipped with extended fittings. It is here
§

171

alleged that the grease fitting on the east side of the No. 2 conveyor tail
pulley was not extended so that the employee could safely grease the pulley
bearing while the pulley was moving. There is no dispute that an employee
did in fact grease the moving tail pulley at that location at least once a
day but there is some dispute over the hazard presented by such a practice.
Based on the photographs submitted by the operator, and the credible testimony of MSHA inspector Rezniak, it is clear to me that the cited practice
constituted a hazard and the violation was therefore proven as charged. The
credible evidence shows that the employee greasing the fitting would be
required to extend his arms over the existing guard and in close proximity
to the moving belt and tail pulley. It is my conclusion that the grease gun
could in fact become engaged in the pulley possibly dragging the employee into
the pulley or that the grease gun could be thrown back tv the moving pulley
into the arms or face of the employee. Under the circumstances, arm and head
~njuries would be likely.
I find also that the hazard should have been obvious
to the operator, particularly since the grease fitting on the opposite side
of the pulley was extended as required by the cit~d regulation. The operator
stopped the belt immediately after it was cited and replaced the fitting with
an extended one.
II.

Uncontested Citation

Citation No. 205346 charged one violation of the standard at 30 C.F.R.
That standard requires that all metal-enclosing or encasing electrical circuits be grounded or provided with equivalent protection. The parties proposed to settle this citation with a reduction in penalty to $50. As
reasons for the settlement, MSHA proferred that the cited ungrounded equipment
was being used in a dry area, making it quite unlikely that the anticipated
shock hazard would occur. It was further proferred that even should a shock
occur it would be minimal, not causing serious injuries. As to all citations
in this case, in addition to the negligence and gravity involved, I have considered evidence as to the size of the operator, the history of its violations
and the demonstrated good faith of the operator in attempting to achieve rapid
compliance. Under the circumstances, I find that the agreed penalty of $50 is
acceptable.
§ 56.12-25.

ORDER
Citation No. 204924 is VACATED. The following penalties totaling· $475
are to be paid within 30 days of the date of this decision.
Citation No.
205343
205346
205347

172

Penal

Distribution:
William G. Staton, Esq., Office of the Solicitor, U.S. Department of
Labor, 1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail)
Harry R. Hayes, Esq., Hayes & Lapitina, 111 Washington Avenue, Albany,
NY 12210 (Certified Mail)

173

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

(703) 756-6225

'JAN 1 3 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

:i

Docket No. LAKE 79-219-M
A.O. No. 33-01400-05001-R

v.

Mecco, Inc., Pit and Mill
MECCO, INC.,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
Petitioner filed a motion to approve settlement in this matter for $200.
The amount originally proposed was $1,000. For the reasons set forth below,
the recommended settlement is approved.
Citation No. 362018 was issued to Respondent on April 18, 1979, for an
alleged violation of Section 103(a) of the Federal Mine Safety and Health Act
of 1977 (the Act). That provision, inter alia gives authorized representatives of the Secretary of Labor "a right
entry to, upon, or through any
coal or other mine" for the purpose of "making any inspection or investigation under this Act * * *·" MSHA alleged that on April 18 and 20, 1979, an
authorized representative of the Secretary was denied entry to Respondent's
premises.
The settlement motion filed by Petitioner and supporting affidavit filed
by Respondent did not deny that the violation occurred. However, these documents asserted that the proposed settlement is warranted for several reasons.
The parties detailed a long history of jurisdictional confusion at Respondent 1 s facility between MSHA and the Occupational Safety and Health Administration (OSHA). Respondent claimed that both agencies claimed jurisdiction
over its facility. Respondent believed that MSHA's jurisdiction was "limited
to underground and open face pit type surface mines." Additionally, in the
event MSHA had jurisdiction over facilities such as Respondent's, the company
felt that the Supreme Court's decision in Marshall v. Barlow's Inc., 436 U.S.
307 (1978), required MSHA to obtain a search warrant before conducting inspections of mine property.
On August 3, 1979, Petitioner filed an injunctive action in the
United States District Court for the Southern District of Ohio in an attempt
to restrain Respondent from interfering with MSHA inspections at its site.
After a series of conferences between the parties, a consent order was

174

approved by the Court in which Respondent agreed to permit MSHA inspections
"upon and through those portions of its operation subject to MSHA jurisdiction," and not "interfere with, hinder or delay" such inspections. Respondent paid approximately $2,000 in attorney's fees in connection with this
court case.
As this civil penalty case proceeded, Respondent repeatedly stated that
it was under the impression the consent order entered in District Court had
resolved this matter. In various conference calls between Respondent's
president, MSHA's counsel, and the undersigned administrative law judge,
Respondent was apprised that this is a separate proceeding from the District
Court litigation. At this point, the parties proposed the $200 settlement.
The settlement motion and affidavit detailed the history of this case
and Respondent's relationship with MSHA. The motion reviewed the various
court decisions on the warrantless inspection issue, and highlighted the confusion and split of authority which faced Respondent when the subject inspections were attempted. Additionally, the motion discussed the jurisdictional
disputes between MSHA and OSHA which had not been resolved as of the date of
the subject inspection attempts. Finally, the motion discussed the six criteria in Section llO(i) of the Act. It is noted that Respondent is a small
operator with no prior history of violating either MSHA regulations or Section 103(a) of the Act. The gravity of the offense is said to be moderate,
and payment of the recommended settlement will not have any effect on the
company's ability to remain in business. The parties further stated that
Respondent's negligence was slight in view of the conflicting case law on the
warrantless inspection issue and the jurisdictional dispute between MSHA and
OSHA which existed at the time in question. Finally, the motion stated that
the consent judgment in the District Court proceeding demonstrated Respondent's good faith in this matter.
In light of these factors, as well as the fact that Respondent has
already paid almost $2,000 in attorney's fees in connection with the injunction action, I believe the proposed settlement should be approved.
ORDER
Respondent is ORDERED to pay $200 in penalties within 30 days of the date
of this Order.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
Marcella Thompson, Attorney, Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland,
OH 44199 (Certified Mail)
David T. Morgan, President, Mecca, Inc., 211 No. University Boulevard,
Middletown, OH 45042 (Certified Mail)

175

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

JAN 1 3 1981
SHARON A. PACE,
Complainant

Complaint of Discrimination,
Discharge, or Interference

v.
Docket No. SE 80-113-D
CONSOLIDATION COAL COMPANY,
Respondent

Matthews Mine

DECISION
Appearances:

Dorothy B. Stulberg, Esq., Mostoller & Stulberg, Oak Ridge,
Tennessee, for Complainant;
Louis R. Hagood, Esq., Arnett, Draper & Hagood, Knoxville,
Tennessee, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Sharon A. Pace pursuant
to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., the "Act," alleging that she was unlawfully discharged by Consolidation Coal Company (Consolidation). A hearing was held
on November 13, 1980, in Knoxville, Tennessee, at which both parties, represented by counsel, 'appeared and presented evidence.
The issue in this case is whether Ms. Pace was unlawfully discharged by
Consolidation in violation of section 105(c)(l) of the Act because of her
alleged safety-related activities at Consolidation's Matthews Mine. Section
105(c)(l) reads in part as follows:
No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the
exercise of the statutory rights of any miner * * * because
such miner * * * has filed or made a complaint under or
relating to this Act, including a complaint notifying the
operator or the operator's agent * * * of an alleged danger
or safety or health violation * * * or because such miner
* * * is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101
or because such miner * * * has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner * * * on behalf of
himself or others of any statutory right afforded by this
Act.

176

If the complainant proves by a preponderance of the evidence that she was
engaged in a protected activity and that her discharge by the operator was
motivated in any part by the protected activity then she has established a
prima facie case under this section of the Act. Secretary of Labor on behalf
of David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (October 14,
1980).
It is undisputed that Ms. Pace, a general laborer at the Matthews Mine
since July 31, 1978, was discharged from her job on March 28, 1980. She
alleges in her pleadings that the discharge was motivated by the fact that
she had been interviewed by an MSHA inspector at her home on February 22,
1980, in the course of his investigation of an alleged safety violation at
the Matthews Mine. For purposes of this decision, I need not determine
whether such activity is protected under section lOS(c)(l) since I do not
find from the credible evidence of record that Ms. Pace's discharge was motivated in any part by that alleged activity. Indeed, Ms. Pace conceded in her
testimony that she had no evidence, and in essence could not therefore prove,
that any company official had any knowledge at the time of her discharge,
that she had been so interviewed by the inspector. 1/ Ms. Pace appears to
suggest that although she has no evidence that any company official was aware
at the time of her discharge of the February 22 interview, that administrative or official notice should be taken to establish that fact and presumably
to also establish that her discharge was motivat.ed by that fact. Not even
the concept of official notice would, however, permit the creation of facts
which have not been shown to have any existence. McCormick's Law of Evidence,
Second Edition, 1972, § 357.
The only affirmative evidence on point comes from the testimony of the
Consolidation officials who testified at hearing. The testimony of mine superintendent Ron Smith, the person who made the decision to discharge Ms. Pace,
is particularly significant. That testimony, which I find to be completely
credible, confirms that the official responsible for discharging Ms. Pace did
so without knowledge of the alleged confidential interview Ms. Pace had with
the MSHA inspector on February 22, 1980. It follows that Complainant's discharge could not have been motivated in any part by that alleged protected
activity. Complainant has thus failed in her burden of proof. Pasula, supra.
I observe that, in any event, Complainant's discharge by Superintendent
Smith on March 28, 1980, was the direct result of her committ
an admittedly unprotected and dischargeable offense, 2:_._c::_., sleeping on the job. As
to this event, I accept the credible testimony of Mack Jones, a foreman for
Consolidation for over 10 years. Jones testified that around 1:30 or 2 in
the morning of March 28, as he was walking along the belt line, he saw a
1/ Ms. Pace observed at hearing that she was also interviewed by the inspector on January 15, 1980, inside the mine, but conceded that all the other
miners on her section were similarly interviewed and she admits that only
her confidential interview with the inspector on February 22, 1980, sets her
apart from the others.

177

miner's light shining at the roof. As he moved closer, he saw someone leaning back against the rib with her eyes closed. He recognized that person as
Complainant Pace. He watched her for a short time, concluded that she was
asleep, then shined his light in her eyes a few times. She "jerked her head"
and woke up. She admitted to Jones that she had been sleeping. Jones thereupon called outside to the mine office and set up a meeting with Superintendent Smith. According to Jones, Pace admitted several times at that meeting
that indeed she had been sleeping. James Keller, Supervisor of Employee
Relations, as well as Snith corroborated that Pace had indeed admitted sleeping on the job. It was at this time that Smith discharged Ms. Pace.
At hearing in this case, as at her arbitration hearing, Pace denied that
she had been sleeping and denied admitting at the meeting in Smith's office
that she had been asleep. In as
the credibility of Complainant's testimony, the analysis given of her statements at the arbitration proceeding by
arbitrator Thomas Phelan is worthy of consideration. See Pasula, supra,
regarding the weight to be given such a determination. Phelan's analysis was
as follows:
As to the proof of the charge that the Grievant

[Ms. Pace] was asleep, the case is a difficult one because
there were only two people present when the offense was
alleged to have been committed. One of them was the foreman
and the other was the Grievant. That type of situation makes
the credibility of the witnesses all important and requires
that all of the surrounding circumstances be carefully examined to determine whether they lend support to either party's
position. In the present case, the testimony relevant to the
surrounding events on March 28 support the company's position.
There was no question that there was a rule against sleeping
in the mine, that the Grievant was aware of the rule and
aware that she would be taken out of the mine if she was
caught sleeping. Knowing that, she still put herself in a
position where she could
be assumed to be asleep
by stretching out with her head back and not moving at all
even when she said that she knew she was being watched by
someone. Having assumed the position of someone asleep, it
was' entirely reasonable for the foreman to conclude that she
was asleep. Then, when the foreman asked her, or even told
her, of his conclusion, she did not deny it but just followed
him out of the mine. Even if the Grievant had not admitted
to being asleep at that point, the lack of a denial of the
charge under the circumstances takes on significance.
When the Grievant and foreman met with the superintendent
there was a discussion of what happened in the mine and the
testimony about that discussion is somewhat conflicting as
would be expected. The company witnesses testified that the
Grievant admitted twice that she had been asleep but the
Grievant's testimony was to the effect that she denied having

178

made such admissions. However, at the 24-48 hour meeting,
she concededly did not remember what she had said at the previous meeting and that concession weakens her testimony considerably because it makes it appear that her position was
changing after she knew that the company was going to go forward with the discharge. Nobody comes to an arbitration
hearing with a greater presumption of credibility and all of
the testimony has to be weighed in light of the surrounding
circumstances. Here, the circumstances support the testimony
of the company's witnesses and their testimony was entirely
believable. I find as a fact, therefore, that the Grievant
actually was asleep in the mine at least for a short period
of time.
After making my own independent evaluation of the evidence I find that
I am in complete agreement with Arbitrator Phelan's considered analysis of
credibility. I conclude therefore that indeed Ms. Pace was sleeping on the
job. This offense admittedly being a dischargeable one independent of any
protected activity, it is clear for this additional re~on that the complaint
herein must fail. The complaint is accordingly DISMIS
~.\

1·

V\11 .

Ga~y Mel\

•I

~'-\/ \!

Aakinistftitive Law

ll'

Distribution:

\ .

Dorothy B. Stulberg, Esq., Mostoller & St1 erg,
Illinois Avenue, Oakridge, TN 37830 (Certified

Road at

Louis R. Hagood, Esq., Arnett, Draper & Hagood, Suite 2300, United
American Plaza, Knoxville, TN 37929 (Certified 'Mail)

179

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

)

JAN 1 3 1981

CIVIL PENALTY PROCEEDING

)
)

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

)

DOCKET NO. CENT 79-392-M

)
)

Petitioner,
v.

)

A/O NO. 41-00072-05004 F

)
)

TEXAS LIME COMPANY, DIVISION OF
RANGAIRE CORPORATION,

)

MINE:

Texas Lime Plant No. 2

)
)
)

Respondent.
---------------~----~-

DECISION
APPEARANCES:
Eloise Vellucci, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square Building, Suite 501
Dallas, Texas 75202,
For the Petitioner,
William R. Anderson, Jr., Esq.
Anderson & Anderson
P. 0. Box 486
Cleburne, Texas 76031,
.For the Respondent
BEFORE:

Judge Jon D. Boltz
STATEMENT OF THE CASE

The Petitioner filed a complaint proposing that a penalty be assessed
against the Respondent for its alleged violation of 30 CFR 56.14-1.1 The
cited regulation was issued under authority of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1978). Attached and incorporated
into the complaint was a copy of the-Citation dated February 19, 1979, in which
the following was written:
"There was a 72-inch sect ion of steel cover missing from
over the feed conveyor head pulley for the No. 5 storage bin,
and an employee was fatally injured when he was caught in the
conveyor."

-------------·--· ....__
lI

Mandatory. Gears; sprockets; chains; drive, head, tail, and take-up
pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar
exposed moving machine parts which may be contacted by persons, and which
may cause injury to persons, shall be guarded.

180

In its answer, the Respondent denies that there was a violation of the
Act as alleged. It further affirmatively alleges, inter alia that the
deceased employee, on his own, and in violation of spec
tructions,
climbed to the area of the conveyor during inclement weather consisting of
ice and sleet, and may have removed the 72-inch sect ion of steel cover from
over the conveyor belt and head pulley in order to get to the area where
the conveyor belt was blocked.
FINDINGS OF FACT

1. In the course of the operation of its business, Respondent's
employees operate a vertical bucket elevator which carries crushed
limestone used for the purpose of making quicklime and hydrate lime. The
bucket travels vertically for a distance of approximately 60 feet, to a
point where the material drops onto a horizontal conveyor belt. The
conveyor belt then carries the material for a distance, to where it
drops from the end of the conveyor belt into a large surge bin or tank.
2. Access to the top of the surge bin, where the conveyor belt
delivers the rock, is by means of an attached metal ladder which extends
down to ground level.
3. At the time of the accident, the entire length of the horizontal
conveyor belt was covered by a rounded metal cover attached to the metal
framework which supports the conveyor belt itself, except for the last
section, which was 72 inches in length, extending from the head pulley back
to the last metal cover over the conveyor belt.
4. On the night of the accident, February 16, 1979, the decedent told
two fellow workers that he was going up to the surge bfn in order to throw
some dry dust on the head pulley because the conveyor belt was slipping
during a rain and sleet storm.
5. The decedent's body was later discovered on its back on top of the
conveyor belt with the left arm caught between the belt and the head
pulley. The decedent's skull was fractured when it came into contact with
the rounded metal rim located over the head pulley. The metal rim was a
support for the 72-inch section of the conveyor belt cover, which was not
in place at the time of the accident.
6.

There were no eye witnesses to the accident.

7. After the accident, the metal cover or guard was found tied to a
corner post on the work platform surrounding the head pulley and conveyor
belt area where the accident occurred.
8. If the 72-inch section of the rounded conveyor belt cover or gµard
had been in place, decedent could not have been pulled in and on top of the
belt the way he was, even if his arm had been caught in the belt.

181

9. The Respondent promptly abated the citation the day it was issued,
February 19, 1979, by replacing the cover and welding it on over the
conveyor belt. An extra open gri 11 grid was installed across the bottom of
the welded cover so that no one could reach into the conveyor belt.
10. The Respondent has a history of 14 assessed violations in the
twenty-four month period preceding February 1979.
11. The Respondent employs approximately 100 persons, who
collectively work approximately 814,472 man hours per year.
12. A monetary penalty would not impair Respondent's ability to
continue in business.
ISSUES
Three issues are presented:
1. Was the head pulley a moving part that might be contacted by
persons and might cause injury?
2. If .the head pulley should have been guarded and if the deceased
employee himself removed the metal cover causing the head pulley to be
unguarded just prior to the fatal accident, is the Respondent responsible
for a violation of the cited regulation?
3. If the Respondent is found to have violated the regulation, what
amount of penalty assessment should be ordered to be paid by the
Respondent?
DISCUSSION AND CONCLUSIONS
The head pulley is specifically mentioned in the cited regulation.
It must be guarded if, while in motion, it might be contacted by persons
and might cause injury. Admitted into evidence were photos and a drawing
of the location where the fatality occurred. They show a work platform
surrounding the area where the employees could walk once the area was
reached by means of climbing the vertical metal ladder attached to the
surge bin tank from ground level. Since workers would be expected to be in
the area on the plat form, it would be expected that they might come into
contact with the head pulley and be injured thereby, unless the head pulley
was guarded. Accordingly, I conclude that the head pulley should have been
guarded.
The evidence is undisputed that the guard or metal cover was not in
place when the accident occurred. The evidence is inconclusive as to
whether the metal cover was off or in place when the decedent reached the
area of his subsequent death. The MSHA inspector testified that he assumed
the metal cover was not in place over the head pulley and conveyor belt
before the decedent climbed to the area, because if the cover had been in
place, the head pulley would not have gotten "so wet" from the rain and
sleet, and thus would not have been slipping. On the other hand, the
Respondent's witness testified that even with the belt cover in place there
had been problems in the past with the belt slipping during extreme weather

182

conditions, such as freezing rain. Therefore, I find the evidence inconclusive as to the point of whether the metal cover guard was or was not in
place before the decedent climbed to the conveyor belt on February 16,
1979. The decedent may have removed the cover himself in an attempt to get
the conveyor belt to move properly. However, regardless of whether or not
the guard was in place when the decedent arrived, it nevertheless was not
in place when he died. Thus, the head pulley, for whatever reason, was
not guarded in compliance with the cited regulation at the time of the
decedent's death. The evidence also shows that it was very easy to remove
this particular last 72-inch section of metal cover. As originally
installed, the cover was bolted into position by four bolts, one on each
corner. However, by the time of the accident, the cover was merely wired
on and the bolts were no longer being used. Also, the decedent's
supervisor admitted that he knew of the practice of employees in throwing
dry dust or calcium on the pulleys to "get the belt going."
The Respondent argues in its post hearing brief that the decedent went
to the platform area on his own and against the specific instructions of
the supervisor. The decedent's station of work was at ground level and his
duties did not require him to go to the top of the tank or to the belt conveyor where it emptied into the tank. Thus, the Respondent argues that
there was no violation of the cited regulation because the decedent's own
misconduct or negligence was the proximate cause of the accident. Respondent's argument overlooks the fact that the Federal Mine Safety and Health
Review Commission has held that an operator's liability is not conditioned
upon fault. The operator is required to see that violations do not occur,
and if violations do occur, he is held liable. Secretary of Labor, Mine
Safety and Health Administration (MSHA) v. Eaton Sand and Gravel Company,
(Docket No. PIKE 79-119 PM, June 25, 1980, Final Order August 4, 1980).
It is undisputed in the evidence that the decedent climbed to the top
of the surge tank on his own and without the approval of his superior. His
supervisor testified at the hearing that he instructed the decedent not to
climb to the surge tank because it was dangerous and the ladder was frozen
over with ice. I find that Respondent's evidence supports its pleading
which affirmatively alleged employee misconduct, and I find this evidence
mitigating in regard to the penalty to be assessed.
The citation should be affirmed.
ORDER
The citation alleged herein is AFFIRMED and the Respondent is ordered
to pay a civil penalty of $2,500 within 30 days of the date of this
Decision for the violation of 30 CFR 56.14-1, as alleged.

183

DISTRIBUTION:
Eloise Velucci, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
William Anderson, Esq.
Anderson & Anderson
P 0 Box 486
206 North Main Street
Cleburne, Texas 76031

184

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

(703) 756-6225

JAN 1,4 1981
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM:NISTRATION (MSHA),
Petitioner

Docket No. LAKE 80-207
A.O. No. 33-01070-03066V

v.
Allison Mine
YOUGHIOGHENY AND OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Linda Leasure,
., Office of the Solicitor, U.S. Department
of Labor, Cleveland, Ohio, for Petitioner;
Robert C. Kota, Esq., Youghiogheny and Ohio Coal Company,
St. Clairsville, Ohio, for Respondent.

Before:

Judge Edwin S. Bernstein

On November 19, 1980, I conducted a hearing pursuant to Section 105(d)
of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 801
et seq., and 29 C.F.R. § 2700.50 ~seq., and issued the following decision
from the bench:
My bench decision is as follows: On August 15, 1979,
Gary R. Gaines, an authorized representative of the United
States Secretary of Labor, issued Respondent Order of Withdrawal No. 825305, pursuant to Section 104(d)(l) of the
Federal Mine Safety and Health Act of 1977.
The order alleged a violation of the mandatory safety
standard at 30 C.F.R. § 75.1100-3. The order read:
The firefighting equipment was not maintained in a usable and operative condition along
the No. 3 main haulage track of main east,
between the Nos. 1 an~ 65 crosscuts, a distance
of 4,000 feet. Only two water outlet valves were
found to be in a usable and operative condition.
Two outlet valves found were not functional. The
rest of the outlet valves could not be found
because they were completely covered with stone
and coal, which had fallen from the roof and ribs.

185

The order referred to a condition in Respondent's Allison
Mine in Beallsville, Ohio, on August 15, 1979.
MSHA's Assessment Office recommended the assessment of
a penalty of $1,000 for the alleged violation. Respondent
challenged the validity of the order and assessment of penalty. At the hearing today, the parties stipulated, and I
find the following:
1. At the time that the order was issued, the Allison
Mine constituted a coal mine, and its products entered
and affected interstate commerce.
2. From 1969 until and including the present time,
Respondent owned and operated Allison Mine.
3. Respondent and every miner employed in Allison Mine
are subject to the provisions of the Federal Mine Safety and
Health Act of 1977 (the Act).
4. The Federal Mine Safety and Health Review Commission
has jurisdiction over this proceeding.
5. During calendar year 1979, Allison Mine produced
527,843 tons of coal and overall, Respondent produced
1,490,929 tons of coal. It is accurate to conclude that
based upon this, Respondent is a medium-sized coal producer.
The Secretary of Labor characterized Respondent as a mediumto-large producer, and Respondent characterized itself as a
medium-to-small producer. I find that it is a medium-sized
producer.
6. On or about August 15, 1979, Respondent produced·
300 or more tons of coal per shift.
7. As indicated by Exhibit G-1, a computer printout
during the two-year period from August 16, 1977, to and
including August 15, 1979, Respondent paid for 741 violations of the Act. The parties stipulated, and I find,
that this is a moderate history of violations of the Act
and its regulations.
8. The violation alleged in the order was abated in
good faith.
MSHA contends that at the time and place of issuance of
the withdrawal order in qu~stion, Respondent violated the
mandatory safety standard at 30 C.F.R. § 75.1100-3. That
standard reads: "All firefighting equipment shall be maintained in a usable and operative condition. Chemical

186

extinguishers shall be examined every 6 months, and the
date of the examination shall be written on a permit tag
attached to the extinguisher."
The alleged violation is specifically based upon a violation of the standard at 30 C.F.R. § 75.1100-2(c). Subparagraph (1) of that section reads:
In mines producing 300 tons of coal or more
per shift waterlines shall be installed parallel
to all haulage tracks using mechanized equipment
in the track or adjacent entry and shall extend
to the loading point of each working section.
Waterlines shall be equipped with outlet valves
at intervals of not more than 500 feet, and
500 feet of firehose with fittings suitable for
connection with such waterlines shall be provided at strategic locations. Two portable
water cars, readily available, may be used in
lieu of waterlines prescribed under this
paragraph.
Mr. Gary R. Gaines, the MSHA inspector who issued the
order, testified for Petitioner. Paul ilright, the Allison
Mine's foreman, and John Scopel, Youghiogheny and Ohio
Coal Company's safety and security manager, testified for
Respondent.
Inspector Gaines stated that on August 15, 1979, he
inspected the No. 3 main haulage track of main east,
between the No. 1 and No. 65 crosscuts at the Allison
Mine. The distance between the No. 1 and No. 65 crosscuts is approximately 4,000 feet, and is intersected by
65 crosscuts.
He found only four outlet valves. Two of these valves
were found to be in a usable and operational condition.
The other two were not usable and operational. He could
not find any other outlet valves. He concluded that these
were buried by stone and coal that had fallen from the ribs.
He testified that 30 C.F.R. § 75.1100-2(c) required outlet
valves at intervals of not more than 500 feet, and that for
this distance of approximately 4,000 feet, at least eight
valves were required. He stated that he found no portable
water cars in the area.
He testified that the haulage tracks were used to haul
supplies, men, and materials, but were not used to haul any
coal. He issued the order of withdrawal at 11:05 a.m. At
about 2:05 p.m., he modified the order to allow resumption

187

of activity, because one water car had been brought onto
the scene. He terminated the order on August 22, 1979,
because Respondent then had two portable water cars.
During Mr. Gaines' testimony, the parties stipulated
that there was a belt line parallel to the haulage tracks
approximately 48 feet distant. Inspector Gaines stated that
of the 65 crosscuts that intersected the length of the haulage track in question, only nine were passable. The others
all were not passable because of coal and rock that had
fallen from the roof and ribs and blocked passage through
the crosscuts.
On cross-examination, he acknowledged that there was
a portable fire extinguisher on the jeep that he used, and
there may have been a second portable fire extinguisher in
a vehicle in the area. He stated that there was loose coal
along the track, but the area had been rock dusted.
He testified that the condition in question was
especially serious because he found an excessive amount of
air velocity along the track in question. He found between
270 and 322.5 feet per minute of air velocity upon testing
with an anemometer. He indicated that another safety standard, 30 C.F.R. § 75.327-1 prohibits velocity in excess of
250 feet per minute, and that such excessive velocity could
increase the spread of fire. He stated that among materials carried along the haulage track was hydraulic fluid in
drums, some types of which are flammable.
Mr. Wright testified that there were adequate water outlets along the belt line. He stated that he believed that
35 crosscuts between the length of haulage track in question
and the parallel length of belt line were open. However, on
cross-examination, he admitted that some of these 35 crosscuts did not have bolted roof above them. He stated that
there were two portable rock dusters and one foam machine
in the area, and that all vehicles carried 10-pound fire
extinguishers and some vehicles carried 15-pound
extinguishers, and that a foam car, which was quite
effective in fighting fire, could reach the No. 1 crosscut
in about three to four minutes and could reach the No. 65
crosscut in about eight to 10 minutes. He admitted that
wood products and oil, which were carried along the haulage track, could ignite anG burn.
He stated that the area had been well rock dusted. He
stated that although at the time that the order was issued
the air velocity was quite high as the inspector testified,
Respondent was in the process of buying mine doors, which

188

would and subsequently did bring the air velocity down to
acceptable limits.
He further testified that in the event of a fire, air
velocity could be short circuited by the installation of
stops or check curtains. He testified that on August 15,
1979, he saw no black areas on the track. This indicated
that rock dusting was performed in a satisfactory manner.
He stated that he had worked at the mine for four years
and that although outlet valves had been installed along
the length of the track in question, they were not maintained during the four years that he was there.
John Scopel testified that he felt that subsection (c)
of 30 C.F.R. § 75.1100-2 referred to coal haulage tracks,
since the criteria of mines producing 300 tons or more were
used. He stated that the more coal you haul on the track,
the more you need firefighting equipment. He testified that
the biggest hazard in igniting a fire is coal dust in suspension, combined with sparks of energized electrical equipment, such as trolley wires. On cross-examination, he
conceded that the more coal you mine, the more supplies you
transport to the face and the more traffic you have along a
haulage track such as this.
Counsel for Respondent contended that 30 C.F.R.
75.1100-2(c) applies only to haulage tracks used for
hauling coal, and that since in the Allison Mine the
tracks in question do not haul coal, Respondent need not
comply with that section. He stressed that subsection (b)
of the standard covered belt conveyors, and that a belt
conveyor was used in this mine to transport coal.
§

I disagree with this contention. I think the plain
meaning of this language is that all haulage tracks using
mechanized equipment in the track or adjacent entry are
covered. The word "all" was used. I am also guided by the
fact that this statute and the regulations enacted thereunder are remedial in nature, and remedial legislation
should be liberally interpreted.
The fact that subsection (b) sets forth standards with
respect to belt conveyors does not detract from the fact
that similar requirements are mandated with regard to haulage tracks. Had it been ir.tended that only coal haulage
tracks were to have been covered by subsection (b), that
could easily have been indicated in that subsection. The
fact is that the word "all" was used.

18B

I therefore find that Respondent violated this subsection, and the standard at 30 C.F.R. § 75.1100-3. That
latter section required that all firefighting equipment be
maintained in a usable and operative condition, and, pursuant to the requirements of subsection (c) of 30 C.F.R.
§ 75.1100-2, the equipment there was not maintained in a
usable and operative condition. The parties have stipulated
that the mine in question produced 300 tons or more of coal.
I find that this haulage track in question, even though
it hauled supplies, equipment, and men, and not coal, was
covered. The testimony is not challenged that the distance
in question, approximately 4,000 feet between the No. 1 and.
No. 65 crosscuts, lacked outlet valves at intervals of not
more than 500 feet. There was no dispute to the inspector's
testimony that he found only two operative valves, and that
at least eight should have been provided in operative
condition.
Furthermore, it is not disputed that there were no
portable water cars in the area on August 15, 1979. Therefore, Respondent violated these provisions as alleged. I
also find that the issuance of the order of withdrawal,
pursuant to Section 104(d) (1) of the Act was appropriate.
That section indicates that such an order should be issued
if an authorized representative of the Secretary finds that
there has been a violation of any mandatory health or safety
standard, and that such violation is caused by an unwarrantable failure of the operator to comply with such mandatory health or safety standards.
I find that the operator should have known that it violated this standard. The haulage track had been provided·
with outlets in the past, but these were rendered inoperable, and many of them were buried by coal and rock. This
indicates that, at least in the past, the operator contemplated using such a sy~tem. Although Respondent's counsel
has effectively raised a question of interpretation of the
standard, and has done a good legal job of arguing that
point. If the operator had a question as to the interpretation as to the application of that standard, it could
have and should have requested an interpretation of that
standard from MSHA. There is no evidence that the operator
attempted to clarify that provision.
Therefore, it should have known and it could have
determined its responsibility, and its failure to do this
constituted an unwarrantable failure as that term is defined
in Section 104(d)(l) of the Act.

190

Having found a violation of the standard, the next
question is the amount of penalty to be assessed. The criteria to be considered are contained in Section llO(i) of
the Act. There are six criteria: (1) Size of the operator.
I find that the operator is a medium-sized coal producer.
(2) History of previous violations. I find that Respondent
had a moderate history of previous violations. (3) Whether
the operator was negligent. For the reasons that I have
indicated, I find that the operator was negligent. (4) The
effect on the operatorts ability to continue in business.
Although the operator has contended that it has lost approximately five million dollars, or will lose this amount for
the calendar year of 1980, the operator has offered no evidence to support the contention that the assessment of a
penalty in the approximate amount recommended by the Assessment Office would affect its ability to continue in business.
The burden of proof on this issue is on the operator. I
therefore find that the assessment of such a penalty would
not affect the operatorts ability to continue in business.
(5) The demonstrated good faith in attempting to achieve
rapid compliance after notification of the violation. In
accordance with the parties' stipulation, I find that the
operator did abate this violation in good faith.
The sixth and last criterion has to do with gravity.
With regard to gravity, the length of the track in question
was 4,000 feet covering 65 crosscuts, a substantial length
of track. The evidence is that there was loose coal about,
that there was excessive velocity in the area, which would
tend to blow coal dust about, and which could aggravate and
increase the spread of a fire. In terms of gravity, the
fact that this track was being used to haul men was quite
serious, in that men trapped in a fire in this area could
be killed or seriously injured. On the other hand, the area
was well rock dusted. There was one and perhaps two portable
fire extinguishers on vehicles in the area, and Respondent's
evidence that there were two portable rock dusters in the
area is not disputed. Additionally, a foam car could have
reached the area in between three and 10 minutes. As to the
evidence that there were waterlines along the belt conveyor,
which was 48 feet parallel at its closest point, I do not
find that this would have been too helpful, since most of
the intersections between the belt conveyor and the haulage
tracks were not readily accessible.
I find quite credible the inspector's testimony, that only
nine of those crosscu~s could be safely traveled. The operator's witness seemed less certain of the point, and I credit
the inspectorts testimony.

191

Upon consideration of all of these criteria, I assess a
penalty in the amount of $750 for this violation, and I uphold
the withdrawal order that was issued. I will issue a written
decision upon receipt of the transcript, accompanied with an
order. Respondent will be required to pay the penalty assessed
within 30 days of service of that written decision and order.
I hereby affirm this bench decision.

ORDER
Respondent is ORDERED to pay $750 in penalties within 30 days of the
receipt of a copy of this Order.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
Linda Leasure, Attorney, Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland,
OH 44199 (Certified Mail)
Robert C. Kota, Attorney for The Youghiogheny and Ohio Coal Company,
P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail)

192

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

( 703) 756-6225

JAN f 4 f98f
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. LAKE 79-218
Petitioner

A.O. No. 33-03300-03005 I

v.
Ann Strip No. 1 Mine

W. B. COAL COMPANY,
Respondent

DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor, U.S. Department
of Labor, Cleveland, Ohio, for Petitioner;
R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Edwin S. Bernstein

On November 20, 1980, I conducted a hearing in Pittsburgh, Pennsylvania,
to determine whether Respondent violated mandatory safety standards as alleged
in two citations issued pursuant to Sectiori 104(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), and a withdrawal order issued pursuant to
Section 107(a) of the Act.
The parties stipulated, and I find:
1. At the time that the citations and order were issued, Respondent
operated, and continues to operate, the Ann Strip No. 1 Mine. This is a
surface coal mine, the products of which enter and affect interstate
commerce.
2. Respondent and the Ann Strip No. 1 Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
3.

I have jurisdiction over this proceeding.

4. During calendar year 1978, the mine produced 56,952 tons of coal and
Respondent produced 118,476 tons of coal in all of its operations. Respondent
has approximately 50 employees and is a small coal operator.

193

5. At all times pertinent to the issuance of the citations and order,
Inspectors D. Ray Marker and Willard F. Poe were, and still are, authorized
representatives of the Secretary of Labor.
6. Copies of the citations and order are authentic and were properly
served upon Respondent. However, Respondent did not stipulate as to the
truthfulness or relevancy of any statements in these documents.
7. The alleged violations were abated in a timely fashion.
tor demonstrated good faith in achieving abatement.
8.

The opera-

Respondent has a good history of prior violations.

9. The assessment of civil penalties will not adversely affect Respondent's ability to remain in business.
Richard J. Neal, Willard F. Poe, Lester R. Ohler, and D. Ray Marker testified for Petitioner. Melvin Anderson, Joseph Zalesky, Richard Lynch, George
Pincola, and Max Sovel! testified for Respondent. Alfred Haverfield testified
for both parties.
Richard Neal testified that as of February 16, 1979, he had been employed
by Respondent for about ten months. He was hired as a blaster, but he also
operated drills, bulldozers, and pan vehicles. A pan vehicle is a track
vehicle with blades which is used to spread and collect topsoil.
On the morning of February 16, 1979, Mr. Neal began work at 7 a.m. He
had been operating a bulldozer for about 45 minutes when he broke a steering
clutch and decided to switch vehicles. He did this without obtaining pennission or informing anyone at W. B. He began operating a Model 631B pan
vehicle, also known as a scraper. A scraper is equipped with a bowl, or pan,
which collects dirt. The weather was cold that day, and it was drizzling
freezing rain. Mr. Neal testified that he moved four or five loads of dirt
along a particular road. In order to get to this road, Mr. Neal had to drive
down a hill into a valley, and then up another hill. He did not recall
whether there were berms 1/ on the side of the road at the time. On his last
trip down the road, he turned the wheel to the right in order to make a turn.
The road was icy and the machine started sliding to the left. Mr. Neal stated
that he gave the machine a little more throttle, and when it regained its
traction, it "shot across the other side of the road,n hit an embankment, and
flipped over.

When asked about the adequacy of the machine's brakes, Mr. Neal stated
that when he started operating the scraper that day, the brakes felt inadequate to him. He also stated that by dropping the scraper bowl in the back
of the machine, it was possibl~ to stop the scraper without the brakes. He
1/ As defined in 30 C.F.R. § 77.2(d), a "berm" is "a pile or mound of material capable of restraining a vehicle."

194

added, however, that he was unable to do this at the time of the accident
because he was carrying the bowl in a high position in order to clear a bump
in the road. This made it impossible to drop the bowl quickly.
Mr. Neal admitted that he was not wearing a seatbelt at the time of
the accident, but that the scraper was equipped with rollover protection.
He also said that he was generally assigned work by his foreman,
Alfred Haverfield. He stated that Mr. Haverfield conducted safety meetings
but Mr. Neal did not recall being instructed to wear a seatbelt. He did
receive a safety booklet discussing the machine's operation, but he never
read it.
On cross-examination, Mr. Neal testified that before February 16, 1979,
he had operated the pan scraper for a.couple of hours in November or December,
1978. He also operated it the previous July on a reclamation project. He
said he had between 120 and 130 hours of experience operating a scraper for
Respondent. Prior to coming to W. B., he had no scraper experience. At
W. B., he spent most of his time operating a drill. When asked what he did
with the safety manual he received, he said he probably threw it in a drawer
at home.
Mr. Neal explained that he did not ask permission to use the scraper on
February 16 because he did not see a supervisor nearby. He indicated, however, that there are radios on the site, including one in a nearby dragline.
The radios could have been used to contact his supervisor or foreman. He
stated that his foreman drove past him but he was not certain that the
foreman saw him.
During cross-examination, Mr. Neal repeated that he knew about the bad
brakes when he began work with the scraper. He also repeated that the
machine could be stopped by dropping the bowl. He was asked.about the bump
which caused him to carry the bowl high, and indicated that he did not
attempt to scrape it or smooth it out ·by dropping dirt.
Mr. Neal admitted to several inconsistencies between his testimony in
this case and his testimony in a prior matter. He admitted that in previous
testimony he had stated that he was instructed to keep the bowl where it
could be used to stop the machine. He also had previously testified that he
did not know if his wheels had locked up during the accident, while at this
proceeding he testified that the wheels had to be spinning, although he did
not see them spin. He said a vehicle such as this can be stopped on ice by
lowering the bowl, but he added that the ice had been removed from this road
early on the day of the accident, and he could have removed it himself with
the scraper.
Alfred Haverfield was the mine foreman at the Ann Strip No. 1 Mine on
February 16, 1979. He stated that he arrived at the mine around 6:15 or
6:30 a.m. After inspecting the road conditions, he ordered all road areas
to be cleaned with dozers. He told Mr. Neal and George Pincola to do this.

195

They were instructed to cut the ice and muck and remove it from the area. He
stated that he was not aware that Mr. Neal was operating a scraper, and that
he did not see Mr. Neal that day until immediately after the accident. He
did not recall how high the berms on the road were that day, but he disagreed
with the suggestion that they were only six inches high. He could not recall
whether the berm heights changed between February 16 and February 20, 1979.
He testified that before February 16, 1979, W. B. tried to maintain berms
approximately three feet high because the company had been advised by MSHA
inspectors that a three-foot height would be adequate. Mr. Haverfield also
stated that it is difficult to maintain berm heights because dirt constantly
falls on a road. This causes the height of the road to increase relative
to the height of the berms. An operator has to continually remove dirt from
the road to maintain berms. If there is much dirt spillage, the operator
may have to scrape the roads four or five times a day.
Mr. Haverfield testified that before each shift, mechanics inspect
equipment visually and check the water and oil. He did not believe that they
checked the brakes on this machine or that they usually check brakes before
shifts because the machines are usually parked when they are checked.
He stated that the firm held weekly safety meetings, and that all
employees were told to wear seatbelts. Before February 16, 1979, four or
five employees had been fired for misuse and improper maintenance of equipment, mainly draglines. On cross-examination, he added that if an employee
finds a defect in a machine, he is instructed to shut down the equipment and
contact his foreman by radio. There are several radios in the area, including one in a dragline about 100 to 150 yards away from the accident site.
Mr. Haverfield reiterated that he did not give Mr. Neal permission to
operate the pan scraper. W. B.'s policy is to forbid operators from changing
machines without first notifying a foreman. Mr. Haverfield was in the process of bringing another man to the site to operate the scraper in question
when he learned of the accident.
After the accident, Mr. Haverfield said he took Mr. Neal to the hospital.
The men discussed the accident at that time. Mr. Neal told Mr. Haverfield
that he had not been wearing a seatbelt, and that he had been carrying the
bowl high. Normal procedure is to carry the bowl low. Mr. Haverfield stated
that if Mr. Neal had carried the bowl low, he could have prevented the accident. Mr. Neal did not mention lack of brakes to Mr. Haverfield on the way
to the hospital.
Mr. Haverfield also discussed Mr. Neal's prior experience with a pan
scraper. Mr. Neal had previously spread topsoil in a reclamation area using
this equipment, but that area had been relatively flat. On the morning of
the accident, Mr. Neal was assigned to a dozer called a "push cat."
Mr. Haverfield said he did not consider Mr. Neal to be an experienced scraper
operator in the area he was working. He said the weather that morning was
freezing rain, but no drying material had been dropped on the road.

196

Willard F. Poe, an MSHA coal mining inspector, inspected the w. B. site
on February 20, 1979, along with Inspector D. Ray Marker. Mr. Poe found that
the berms along the road where Mr. Neal had his accident were inadequate. He
stated that a berm can be made of a mound of any material. The berm he
observed was made either of soil or shale. The height of the berm ranged
from six inches to 24 inches, and it ran for 50 to 60 feet along the road.
MSHA's policy is that berms should be the height of the axle on the largest
machine which travels the roadway. That would have been 42 inches for the
berms in this area. He also stated that in this case both sides of the roadway were "outer banks," as that term is used in 30 C.F.R. § 77.1605(k). One
side was the outer bank going in one direction, and the other was the outer
bank going in the other direction. He therefore felt that both sides of the
the road required berms.
On cross-examination, Mr. Poe stated that Mr. Neal's scraper was fully
loaded at the time of the accident, and thus weighed about 50 to 60 tons. He
did not know whether or not a benn of axle height would have restrained the
scraper under the circumstances of this accident. He issued Citation No.
784603 for inadequate berms at 9 a.m. that day.
Leslie R. Ohler, another MSHA coal mine inspector, stated that he accompanied Inspector Marker on a visit to the hospital to see Mr. Neal on
February 21, 1979. Mr. Marker conducted most of the interview with Mr. Neal.
Upon leaving the hospital, the men determined that an imminent danger order
would have to be issued for inadequate brakes on the scraper. They proceeded
to the mine and inspected the scraper. They noted that some hydraulic hoses
and air hoses were broken, and Mr. Marker told Mr. Ohler that an air valve
leading to the scraper trailer had been turned off. This indicated to
Mr. Ohler that no air was being pumped to the trailer. Mr. Marker also told
Mr. Ohler that the push rods of the trailer's braking mechanism were inoperable. They were packed with ice and frozen dirt, and there was no indication
that they had been moving. In Mr. Ohler's words, "There was no shiny place
on it. It was rusted and sealed over." Mr. Ohler told Mr. Marker that he
would have to issue the order, and Order No. 784405 was issued late that
morning.
Inspector D. Ray Marker was MSHA's next witness. He stated that he
visited the mine on February 21, 1979, with Inspector Ohler. They inspected
the scraper which had been in the accident. Mr. Marker noted that the valv.e
which supplied air to the rear brakes was "across line," or in the "off"
position. He also noticed that several brake lines were severed, and that
the gooseneck of the vehicle was cracked. He found frozen brown dirt around
the push rods, and saw no shiny marks on the rods. This indicated to him
that rods were not operating. He concluded that the rear brake system had
been inoperative for "quite a while."
On cross-examination, he stated that during a preshift inspection, a
qualified person should check equipment to see if it is safe. He stated that
he did not know when the air valve was turned off on the vehicle, when the
hoses were broken, or when the gooseneck was damaged. He could not state

197

whether or not these things happened during the accident. He also could not
say whether the dirt that he found around the push rods accumulated during
the accident or prior to it. He stated that it could have gotten there during the accident.
He stated that a pan scraper can be stopped by dropping the bowl, and
on reasonably level ground, the brakes should be able to stop it. On a
slope, however, it is more difficult for brakes to stop a scraper. This is
especially true when the scraper is loaded. Speed can also affect the
brakes' ability to stop the scraper. He said the grade on this road was
about 14 percent, and that proper brakes could stop a scraper on such a road.
He added that the bowl would be less useful on icy roads.
Mr. Marker stated that the violation was abated on June 11, 1979.
was the first time Respondent informed MSHA that the machine had been
repaired.

This

On cross-examination, Mr. Marker stated that he and his wife own the
land which W. B. mines and receive monthly payments from w. B. Mr. Marker
first stated that he had no discussions with, or complaints about, W. B. concerning royalty amounts. However, he subsequently admitted that, in a previous proceeding, he had testified that he made such complaints. He
explained that he had problems with the dates that he received the royalty
checks. The checks sometimes came a day late, he said. He also had problems
with W. B.'s watering the road in front of the property. He stated he once
had an excellent relationship with W. B. Now, he described it as "better than
poor," but not good. He stated, "It's not my fault." He denied that he had
ever asked w. B. for a job.

Melvin Anderson, another scraper operator, was Respondent's first witness. He testified that he was sick on February 16, 1979, but on February 15,
the day before the accident, he used the scraper in question. Asked about the
condition of the vehicle's brakes, he stated, 11 They were, I guess, what you
would call adequate brakes." He did not list the brakes as being bad on his
timesheet, but he added that it is not his habit to use the brakes. Instead,
he usually uses a hand lever to lower the bowl for stopping. He stated that
the bowl can be raised as much as two feet when empty, but that when the
bowl is full, he normally operates with the bowl six to eight inches off the
ground.
Joseph Zalesky testified that at the time of the accident, he serviced
and repaired heavy equipment, including the vehicle in question. He has had
about 22 years of extensive experience in repairing this type of machinery.
He stated that he now works for, and is part owner of, a company known as
Rebuild, Inc. He was working at w. B.'s facility on the day of the accident.
Mr. Zalesky first saw the scraper shoi;tly after the accident, when it
was lying at the bottom of a pit. He uprighted the scraper with the help of
dozers and a loader. He steered the vehicle as it was being pulled from the
pit. Upon examining the brake gauge, he noticed that it had about 110 pounds

198

of pressure. The indicator was in the green, or satisfactory, area. He
also noted that it had adequate braking power at the time to steer it. However, he noted that the gooseneck area of the vehicle had been damaged, and
that several brake lines had been broken. He could not state whether or not
the brakes were in good condition at the time of the accident. He was not
able to test the brakes and determine whether some of these lines broke during the accident or had broken previously.
Mr. Zalesky also stated that he had repaired the vehicle in early
February, and had found the brakes to be adequate at that time.
Richard Lynch, W. B.'s superintendent since it began operations
7-1/2 years ago, testified that he has 32 years of experience operating heavy
equipment, including pan scrapers similar to the one at issue. He stated
that he and Mr. Haverfield assign employees to their jobs, and that Mr. Neal
was assigned to a Caterpillar bulldozer on February 16, 1979. Before the
accident, he did not see Mr. Neal operating the scraper in question. He
stated that the road was "generally smooth and frozen," and that freezing
rain was falling at the time of the accident. In his opinion, the accident
was caused because Mr. Neal was driving too fast and locked all four wheels
when he applied the brakes and skidded. Mr. Lynch noticed some skid marks,
and the scraper bowl was in a high position. He concluded that the wheels
had locked as a result of braking because if they had not locked, he would
have seen tread marks.
He also stated that a bowl should be carried no higher than necessary.
By carrying the bowl low, the operator can stop quickly, as well as maintain
a smooth road. He stated that the normal method of stopping such a vehicle
is to drop the bowl slightly. Mr. Neal's big mistake was in carrying the
bowl high. This created a high center of gravity and made the machine tip
more easily. It also prevented him from lowering the bowl quickly to stop
the vehicle. With respect to the bump that Mr. Neal testified prevented him
from keeping his bowl low, Mr. Lynch stated that the bump could have been
removed very easily, or else the operator could have filled up the area by
dropping dirt. In Mr. Lynch's opinion, if Mr. Neal had dropped his bowl, he
would have been able to stop the scraper.
Mr. Lynch testified that W. B. stressed maintaining berms, but he added
that berms could change very quickly depending on the type of work which was
being done. He stated that the company has tried to maintain berms at axle
height since the accident. Before the accident, they were never told of a
specific height. He stated that even if the berm in question had been axle
height, the vehicle would have rolled over, and might have rolled over more
than it did.
Mr. Lynch asserted that W. B. instructs its operators to wear seatbelts.
This is because the company does not want MSHA to penalize it, and does not
want its employees to be hurt.

19B

He also stated that it is against W. B.'s policy for an operator to
switch vehicles without permission. He would not have given Mr. Neal permission to use the scraper on the day in question. Caterpillar Tractor, the
manufacturer of this vehicle, says it generally takes about a year for an
individual to become proficient in the operation of a pan scraper. This is
only an average, however. Some men take more time, and some take less.
He also stated that under the company's policies, if an operator finds
his brakes to be inadequate, he is supposed to tell either his supervisor or
a mechanic. Mr. Neal was within 200 feet of a dragline where there was a
radio, and he could have informed someone before using the scraper.
Mr. Lynch also took issue with a statement made by Inspector Marker.
He said Mr. Marker had asked him for a job, but was turned down.
On cross-examination, Mr. Lynch stated that on February 16, 1979, he
arrived at work around 6:15 a.m. and inspected the work areas. He did not
notice the bump on the road which Mr. Neal mentioned. He stated that the
berms on the righthand side were about three feet high where the accident
occurred.

He also said that he believes Mr. Neal had a total of four to five days
of pan scraping experience. He explained that Mr. Neal worked the pan
scraper one to two hours a day after his normal duties, which usually
involved operating a drill. W. B.'s employees are paid based on the total
number of hours worked, and the hourly rate on the highest paid machine
worked. Since operating a scraper pays more than operating a drill, Mr. Neal
would put in for a full day operating a scraper, even though he may have
actually operated one for only one or two hours. Thus, although on the accident report Mr. Neal said he had about three weeks of experience operating a
pan scraper, Mr. Lynch said that in terms of total hours he had no more than
four to five full days.
Finally, Mr. Lynch testified that prior to February 16, 1979, he asked
an MSHA inspector what was adequate height for berms. The inspector did not
tell him, and Mr. Lynch concluded that "adequate" meant adequate to restrain
a vehicle. He felt that three feet was an adequate height for a berm.
George Pincola, a bulldozer operator for W. B. and a union secretary,
has worked for the company for over three years. When Mr. Neal was using the
pan scraper, Mr. Pincola used a bulldozer to help load the scraper. He
stated that he never switched machines without notifying a mechanic or foreman because this is against company policy and could be dangerous. He also
stated that he never carries a bowl over six to eight inches off the ground
because that way if he wants to stop suddenly he can easily drop the bowl.
He stated that in operating this type of scraper, he never trusts the brakes.
In his opinion, if Mr. Neal had dropped the bowl, he would definitely have
been able to stop the vehicle.

200

Max Sovell, w. B.'s general manager, testified that his duties include
both operating and.safety responsibilities. He stated that W. B.'s relationship with Mr. Marker is not good. Mr. Marker has not been satisfied with
W. s:s method of mining, and he does not feel W. B. pays him large enough
royalties. w. B. apparently pays Mr. Marker less than it pays two adjoining
land owners, and Mr. Marker complained. Mr. Sovell said Mr. Marker once filed
a complaint with the Office of Surface Mining which resulted in a citation
being issued against W. B. Mr. Marker also complained about the timeliness
of his monthly royalty checks, which are due on the 25th of each month. On
one occasion, a check arrived on the 26th, and Mr. Marker told W. B. it had
violated its lease and had to get off his property.

Mr. Sovell stated that it is the company's policy that employees are not
supposed to switch machines without authorization. If an employee discovers
a safety problem, such as inadequate brakes, he is supposed to immediately
notify his supervisor or a mechanic. Furthermore, it is company policy to
have all employees wear seatbelts and the company has a 10- to 20-minute
safety meeting each week. Seatbelts and the unauthorized use of vehicles
have been discussed at these safety meetings. Mr. Savell testified that due
to his violations of company rules, Mr. Neal's employment was terminated
around March 19, 1979. He added that the damage to the scraper cost the
company approximately $30,000, and that the company has fired other employees
for damaging equipment.
He said he had never seen MSHA's inspection manual, in which the agency
specified a height for berms, until about 30 days before the hearing, when his
lawyers showed it to him. He also stated that between the accident and the
inspection, nothing was done to reconstruct the berms.
Inspector Poe was recalled, and testified that on February 20, 1979, he
saw W. B. stripping and working on the road in question. The height of the
berms at that time varied between six and 24 inches.
Citation No. 784603
MSHA alleged that Respondent violated the mandatory safety standard at
30 C.F.R. § 77.1605(k). That standard reads: "Berms or guards shall be
provided on the outer bank of elevated roadways." The citation read:
The berms provided for the elevated haulage roadway were
inadequate in that the berms ranged from 6 to 24 inches in
height for a distance of approximately 50 feet in length.
The axles for the Caterpillar 631B scrapers traveling this
roadway measured approximately 42 inches in height. A serious
non-fatal accident occurred on this roadway when a Caterpillar
631B scraper (Serial No. 13G3145) traveled off this elevated
roadway and overturned.
I find that on February 20, 1979, Respondent was in violation of this
standard. The road in question was an elevated roadway. Both banks could be

201

considered "the outer bank11 because there were drops on both sides of the
roadway. 2/ Although on February 20, 1979, when Inspector Poe issued the
citation,-there were berms along the road, I find that the berms were between
six and 24 inches in height. I find Inspector Poe's testimony in this regard
more reliable than contradictory testimony that the berms were 36 inches high.
There was a lack of consistency among Respondent's witnesses with respect to
the 36-inch height, and I was quite impressed by Inspector Poe's testimony.
I thought he was much more knowledgeable about the height of the berms at
the time. I also credit his testimony that there was work going on on
February 20, when he was at the site.
I agree with Respondent that MSHA's requirement that berms be axle
height, or 42 inches in this case, was not binding on W. B. because the company had no knowledge of the requirement. However, implicit in the standard
is a requirement that the berms be of reasonable height to offer protection.
This is clear from the definition at 30 C.F.R. § 77.2(d). Mr. Lynch testified that a satisfactory height, in his opinion, would have been three feet.
Even if I accept this figure, I find that the height of the berms at the time
the citation was issued was less than three feet. At points it was as low as
six inches. Therefore, the berms were not of sufficient height. I note that
Mr. Lynch testified that at the time of the accident, the berms were about
three feet high; but I do not believe he testified that the berms were that
height on February 20. Therefore, I find that the berms were not adequate on
February 20.
The operator was negligent since it was aware that berms of six to
24 inches were unsatisfactory. However, I recognize that the height of such
berms changes constantly, and I therefore find W. B.'s negligence was not
great. As to gravity, inadequate berms can lead to an accident. I do not
believe Mr. Neal's accident would have been prevented by berms 36 inches or
even 42 inches high. I credit the testimony of Respondent's witnesses that
Mr. Keal improperly operated his scraper, and probably would have been thrown
off the road even if the berms were of satisfactory height. Nevertheless, the
gravity here is reasonably serious.
I also note that the operator is a small operator, that it has a.good
history of prior violations and that it achieved rapid abatement of this
violation. Therefore, I assess a penalty of $500 for this violation.
Citation No. 784404
This citation was issued for an alleged violation of the mandatory
standard at 30 C.F.R. § 77.403a(g). That standard reads: "Seatbelts
2/ The Commission recently voted in an open meeting to affirm a decision by
Chief Judge Broderick holding that both sides of a roadway could be considered
the "outer banks." See 4 Mine Reg. & Productivity Rept. No. 42 at 1 (1980).
As of this writing,
Commission has not issued a written decision in the
case, MSHAv. Cleveland Cliffs Iron Co., Docket No. VINC 79-68-PH.

202

required by § 77 .1710(i) shall be worn by the operator of mobile equipment
required to be equipped with ROPS by§ 77.403(a). 11 30 C.F.R. § 77.1710(i)
requires "[s]eatbelts in a vehicle where there is a danger of overturning and
where roll protection is provided. 11 The citation read: "Seatbelts were not
worn by the operator of the Caterpillar 631B scraper, Serial No.
13G3145. This condition was determined during a serious nonfatal accident
investigation. The Caterpillar 631B scraper was equipped with a roll over
protective structure referred to as ROPS. 11
The testimony of Mr. Neal and of Respondent's witnesses indicated that
Mr. Neal was not authorized to operate the scraper, and he chose to operate
the vehicle entirely on his own. This finding does not, of course, eliminate
Respondent's liability. The actions of employees are attributable to their
employers. Therefore, I hold that Respondent violated the standard. However, under these circumstances, I find that the operator's negligence was
minimal. Therefore, I assess a penalty of $10 for this violation.
Order No. 784405
On February 21, 1979, Inspector Marker issued this order pursuant to
Section 107(a) of the Act based upon a finding of imminent danger. The order
read: "The Caterpillar 631B scraper, Serial No. 13G3145, was not equipped
with adequate brakes (section 77.1605(b)). It was determined during a serious
nonfatal accident investigaeion that at the time of the accident the scraper
was being operated with inoperative brakes."
I find that this order was proper at the time it was issued. The evidence is clear and undisputed that when Inspector Marker examined the vehicle
after the accident the brake lines were severed and the brakes were in a
defective condition. \Vhether this occurred during the accident or previously
does not matter. The fact is that unless this vehicle was repaired, it could
not be used without
the operator in imminent danger. Therefore, the
order was appropriate.
The order also
a violation of 30 C.F.R. § 77.1605(b), which provides in part: "Mobile equipment shall be equipped with adequate brakes
* * *·" The additional question, therefore, is whether before the accident
the operator was in violation of this mandatory safety standard, and if so,
what civil penalty should be assessed.
The witnesses who testified about the brakes were Mr. Neal, Mr. Anderson,
and Mr. Zalesky. Mr. Neal stated that in the course of his operation of the
scraper, in which he made approximately four runs before the accident, he
found the brakes to be poor. Mr. Anderson stated that on the day before the
accident, the brakes were adequate. Mr. Zalesky stated that after the accident he found the brake pressure to be sufficient although the brake lines
were broken in spots. The net effect of Mr. Zalesky's testimony is that he
is in no position to state whether or not on February 16 the brakes were
satisfactory. The only evidence that the brakes were not satisfactory was
Mr. Neal's testimony. In contrast, Mr. Anderson said that on the previous

203

day, the brakes were in good condition. I find that Mr. Neal's testimony is
rather weak. Mr. Neal has been shown to be inexperienced in the operation of
this scraper and I am not certain that in the confusion surrounding the accident, his ability to observe and recall was sufficiently accurate. There
were also inconsistencies between Mr. Neal's testimony at this hearing and his
testimony at an earlier hearing. I do not find Mr. Anderson's testimony that
the brakes were in good condition on the previous day, and Mr. Zalesky's
testimony that the brakes had been checked out earlier that month, to be outweighe<l by Mr. Neal's testimony that the brakes were not working. Mr. Neal's
testimony is also somewhat suspect because he stated that he found the brakes
to be unsatisfactory when he started the machine and yet continued to use it.
His actions seriously undermine his testimony. Therefore, Petitioner has not
proven that on February 16, 1979, the brakes were unsattsfactory as alleged.
This citation is vacated.
ORDER
Respondent is ORDERED to pay $500 in penalties within 30 days of the
date of this Decision in satisfaction of Citation No. 784603, and $10 in
penalties within 30 days of the date of this Decision in satisfaction of
Citation No. 784404. Order No. 784405 is AFFIRMED, but the citation alleging
a violation of 30 C.F.R. § 77.1605(b) is VACATED.

~/~

Edwin S. Bernstein
Administrative Law Judge
Distribution:

Linda Leasure, Attorney, Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
R. Henry Moore, Attorney, Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail)

204

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

'JAN 1 4 iss1

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

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 80-210-M
A.O. No. 11-00151-05001

'

v.

Mine:

St. Clair Quarry and Mill

OGLE COUNTY HIGHWAY DEPARTMENT,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for Petitioner;
Walter z. Rywak, Esq., Ogle County Assistant State's Attorney,
Oregon, Illinois, for Respondent.

Before:

Judge Edwin S. Bernstein

The Secretary of Labor petitioned for the assessment of civil penalties
totaling $142 for the following four violations of MSHA standards:
Citation
Number
356901
356902
356903
356904

§
§
§
§

30 C.F.R.
Standard

Proposed
Penalty

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

$ 32
$ 44
$ 32
$ 34
$142

Total:

In various prehearing conferences, the parties agreed that the sole issue
separating them was whether or not Respondent is covered by the Federal Mine
Safety and Health Act of 1977 (the Act), the authorizing statute for the regulations listed above. The parties requested that this issue be decided on
the basis of joint stipulations of fact and cross motions for summary decision
filed in accordance with Commission Rule 64, 29 C.F.R. § 2700.64. 1_/ The parties also proposed that if I find Respondent is covered by the Act, the case
be settled for the full $142 amount recommended by Petitioner.
1/ In an Order dated November 17, 1980, the parties were directed,
inter alia, to file cross motions for summary decision and supporting briefs
no later than December 15, 1980. No motion or brief has been received from
Respondent. Therefore, this case will be decided on the basis of Petitioner's
brief and the arguments made by Respondent in various earlier submissions.

205

The parties stipulated, and I find:
1. I have jurisdiction over this matter and will decide whether Respondent is covered by the Act. Respondent reserves the right to appeal this
decision.
2. Respondent, a subdivision of the State of Illinois, operates an open
pit called the St. Clair Quarry and Mill, located at Lime Kiln Road off
Highway 64, two miles west of Oregon, Illinois, on land leased from Mr. Henry
St. Clair.
3. Respondent employs a "single bench" mining method to produce limestone. This limestone is crushed, broken and used to maintain the Ogle County
Highway System.
4. In connection with this pit, Respondent owns and uses a crusher and a
Caterpillar end loader, and uses county highway trucks. It also utilizes
between three and five employees, and produced 11,000 tons of limestone in
1979.
5. Respondent's facility has been inspected since 1979 by the U.S.
Department of Labor. Prior to 1979, the facility was inspected, beginning
in 1972, by the U.S. Department of the Interior.
6. On November 28, 1979, MSHA Inspector Charles Ambrose conducted an
inspection of Respondent's worksite and issued the four citations listed
above. On February 6, 1980, MSHA proposed a total of $142 in penalties for
these citations.

7.
matter.
Act.

Respondent is not contesting the citations or the penalties in this
The only issue in dispute is whether Respondent is covered by the

The Interstate Commerce Issue
Respondent contended that "it is not subject to the Act because [its]
activities are purely intrastate and do not affect interstate commerce." In
order to decide on this question, it is necessary to examine the constitutional underpinnings of Federal jurisdiction over the mining industry.
Article I, Section 8, Clause 3 of the Constitution gave Congress the
power to "regulate Commerce * * * among the several States * * *·" The
U.S. Supreme Court has a long history of upholding Federal regulation of
ostensibly local activity on the theory that such activity may have some
effect on interstate commerce.
In Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld a Federal
law regulating the production of wheat which was "not intended in any part
for commerce but wholly for consumption on the farm." Id. at 118. The
Court stated that:

206

[E]ven if appellee's activity be local and though it may not
be regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial economic
effect on interstate commerce, and this irrespective of
whether such effect is what might at some earlier time have
been defined as "direct" or "indirect".
Id. at 125.
In 1975, the Court elaborated on this idea, stating that "[e]ven activity
·that is purely intrastate in character may be regulated by Congress, where the
activity, combined with like conduct by others similarly situated, affects
commerce among the States or with foreign nations." Fry v. United States,
421 U.S. 542, 547 (1975). More recently, the Seventh Circuit Court of Appeals
relied upon Wickard when it said that the commerce clause "has come to mean
that Congress may regulate activities which affect interstate commerce."
United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (Emphasis in
original.)
~~
These principles have often been relied on by the lower courts in ruling
on the coverage of the present Act and its predecessor, the Federal Coal Mine
Health and Safety Act of 1969. 2/ One leading case is Marshall v. Kraynak,
457 F. Supp. 907 (W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert.
denied, 444 U.S. 1014 (1980). There, the Court upheld the applicability of
the 1969 Act to a small mine which was owned and operated entirely by four
brothers. No other personnel had worked there for at least seven years and
.the brothers had no intention of hiring other employees in the future. The
brothers contended that all of the coal which they mined was sold and consumed within the State of Pennsylvania and did not involve interstate commerce.
Id. at 908. The defendants admitted, however, that more than 80 percent of
their production was sold to a paper processing corporation which was
"actively engaged in interstate commerce." Id. at 909. The Court held that
2/ Section 4 of the 1969 Act, which was substantially unchanged by the 1977
Amendments Act, provided:
"Each coal mine, the products of which enter commerce, or the operations
or products of which affect commerce, and each operator of such mine, and
every miner in such mine shall be subject to the provisions of this Act."
Section 3(b) of the 1969 Act, which was not amended by the 1977 Amendments Act, defined "commerce" as:
"[T]rade, traffic, connnerce, transportation, or communication among the
several States, or between a place in a State and any place outside thereof,
or within the District of Columbia or a possession of the United States, or
between points in the same State but through a point outside thereof."
It is clear that in enacting mine safety legislation, Congress intended
"to exercise its authority to regulate interstate commerce to 'the maximum
extent feasible through legislation'." Secretary of the Interior v. Shingara,
418 F. Supp. 693, 694 (M.D. Pa. 1976), quoting S. Rep. No. 1055, 89th Cong.,
2d Sess. 1 (1966), reprinted in (1966) U.S. Code Cong. & Ad. News 2072.

20'7

"the selling by the defendants of over 10,000 tons of coal annually to a paper
ptoducer whose products are nationally distributed enters and affects interstate connnerce within the meaning of * * * the Act." Id. at 911.
A similar case was Secretary of the Interior v. Shingara, 418 F. Supp.
693 (M.D. Pa. 1976), involving a mine which was operated entirely by two
brothers, Edward and Frederick Shingara. In the words of the Court, "Edward
[went] underground, while Frederick [did] the hoisting." Id. at 694. The
Court found that the fruits of their labor were sold as follows:
The Shingara coal is sold primarily to Calvin v. Lenig of
Shamokin, Pennsylvania who resells it, along with other coal
which he has gathered, to Keystone Filler and Manufacturing Co.,
Inc. of Muncy, Pennsylvania and Mike E. Wallace of Sunbury,
Pennsylvania. Keystone Filler combines the Shingara-Lenig
coal with others in order to achieve a particular ash content,
dries the mixture, and grinds it into a powder which is
shipped to customers outside of Pennsylvania.
Id. The Court stated that "(a]lthough the activity in question here may seem
on first examination to be local, it is within the reach of Congress because
of its economic effect on interstate commerce." Id. The Court compared the
facts of the case to the facts in Wickard and concluded that "the Shingara
coal mining activity, which has an even more direct impact on the coal
market, also 'affects commerce' sufficiently to subject the mine from which
it emanates to federal control." Id. at 695.
In both Kraynak and Shingara, the coal in question was being sold to
parties who were engaged in interstate commerce. In other mining cases, such
facts were not shown, but the courts nevertheless utilized the seminal Wickard
decision to find that the activities in question "affected commerce. 11 Marshall
v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979), involved a specific agreement
between the owner of a coal mine and his buyer that the latter would sell the
coal only within the state and not place any of it into interstate commerce.
In holding that interstate commerce was still affected, the Court went back to
the following passage from Wickard:
It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a substantial
influence on price and market conditions. This may arise
because being in marketable condition such wheat overhangs
the market and if reduced by rising prices tends to flow
into the market and check price increases. But if we assume
that it is never marketed, it supplies a need of the man who
grew it which would otherwise be reflected by purchases in
the open market. Home-grown wheat in this sense competes
with wheat in commerce.
478 F. Supp. at 7, citing 317 U.S. at 128.
Court found that:

208

Using this rationale, the Kilgore

[I]t is inescapable that the product of the defendant's mine
would have an affect (sic] on commerce. The fact that the
defendant's coal is so~only intrastate does not insulate
it from affecting commerce, since its mere presence in the
intrastate market would effect [sic] the supply and price of
coal in the interstate market.
478 F. Supp. at 7. See also Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D.
Pa. 1978) ("The Act does not require that the effect on interstate commerce be
substantial; any effect at all will subject [the operator] to the Act's
coverage.")
I am aware of only one case where a Court held that a mine did not affect
commerce within the meaning of the Act. Morton v. Bloom, 373 F. Supp. 797
(W.D. Pa. 1973), involved a one-man mine which had no employees. The coal
which the defendant produced was sold "exclusively within Pennsylvania." Id.
at 798. The Court held that this operation was not the type which Congress
intended to cover when it enacted the statute. Id. More significantly, the
Court found itself unable to conclude "that defendant's one-man mine operation will substantially interfere with the regulation of interstate commerce.11 Id. at 799. Even under the Wickard standard, the Court stated that
the mine was "one of local character in which the implementation of safety
features required by the Act will not exert a substantial economic effect on
interstate commerce." Id.
I have carefully reviewed the Court's reasoning in Bloom, and I conclude
that it should not be followed in the instant matter. First, I do not believe
the Court properly considered all of the possible means by which the Bloom
operation could have affected interstate commerce. At one point in the opinion, the Court noted that the "defendant does use some equipment in his mine
which was manufactured outside of Pennsylvania * * *·" 373 F. Supp. at 798.
The Court found that this did not bring the defendant's mine within the ambit
of the commerce clause since the purchase of this
pment was "so limited
that its use would be de minimis. 11 Id. This reasoning, in my view, runs
directly contrary to
Supreme Court's statement in Mabee v. White Plains
Publishing Company, 327 U.S. 178, 181 (1946), that the de minimis maxim
should not be applied to commerce clause cases in the absence of a Congressional
to make a distinction on the basis of volume of business. And,
as the Court noted in Bosack, the Mine Safety Act does not require that the
effect on interstate commerce be substantial. See 463 F. Supp. at 801.
Secondly, and perhaps more importantly, the Court in Bloom did not consider the effects which many one":'1Ilan coal mining operations, taken together,
might have on interstate commerce. Going back once again to the Wickard
case, the Supreme Court held that even if the wheat in question was never
marketed, "it supplies a need of the man who grew it which would otherwise
be reflected by purchases in the open market. Home-grown wheat in this
sense competes with wheat in commerce." 317 U.S. at 128.

209

After a careful review of the facts stipulated by the parties, and the
relevant case law on the interstate commerce issue, I find Respondent to be
covered by the Act.
Decision and Order Approving Settlement
As stated above, the parties
that if Respondent is covered by the
Act, they would settle the case for the full $142 amount proposed by MSHA.
The settlement motion submitted by the parties contained an analysis of the
six criteria in Section llO(i) of the Act as they relate to each of the citations. Specifically, the parties' motion stated that each violation resulted
from ordinary negligence on the part of Respondent, and that Respondent "took
extraordinary steps to gain compliance" by remedying each of the situations
giving rise to the citations listed above. In light of this information, I
find that the proposed settlement is sufficiently substantial to effectuate
the purposes and policies of the Act and I approve it.
ORDER
Respondent is ORDERED to pay $142 in penalties within 30 days of the
date of this Order as follows:
Citation No.
356901
356902
356903
356904
Total:

Edwin S. Bernstein
Administrative Law Judge
Distribution:
Rafael Alvarez, Attorney, Office of the Solicitor, U.S. Department of
Labor, Eighth Floor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)
Walter z. Rywak, Ogle County Assistant State's Attorney, Ogle County,
Oregon, IL 61061 (Certified Mail)

210

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

QAN 1 ·4 1981

(703) 756-6225
WHITE PINE COPPER DIVISION,
COPPER RANGE COMPANY,
Applicant
v.

Contest of Order
Docket No. LAKE 80-236-RM
Order No. 298441
February 19, 1980, as modified

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

White Pine Mine
Respondent
DECISION

Appearances:

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill

& Greenlee, P.C., for Applicant;
Gerald A. Hudson, Esq., Office of the Solicitor, U.S. Department of Labor, Detroit, Michigan, for Respondent;
Harry Tuggle, Safety Director, for the United Steelworkers
of America.
Before:

Judge Edwin S. Bernstein
STATEMENT OF THE CASE

This is a proceeding filed under Section 107(e) of the Federal Mine
Safety and Health Act of 1977 (the Act) by White Pine Copper Division, Copper
Range Company (White Pine or Applicant), to review an order of withdrawal
issued by an inspector of the Mine Safety and Health Administration (MSHA or
Respondent). The order was issued under Section 107(a) of the Act for an
alleged imminent danger at the White Pine Mine. I conducted a hearing on
October 28, 29, and 30, 1980, in Ironwood, Michigan. Bruce Haataja, the MSHA
inspector who issued the withdrawal order, William Carlson, an MSHA mining
engineer, and William W. Lutzens testified for MSHA; Al Goodreau, Brian
McGunegle, Joe Maher, Wally Olkkonen, and William Dorvinen testified for
White Pine; and John Cestkowski and Dale Sain testified for the United
Steelworkers of America (the Union or Steelworkers).
The issue before me is whether or not Withdrawal Order No. 298441, dated
February 19, 1980, and its modifications, dated February 22, 1980, and
February 25, 1980, were proper. 1/
}.:._/

Order No. 298441 read as follows:
"A violation of a mandatory standard was not observed. This order is
issued to forbid persons from entering the test area in Unit 56 until it is

211

FINDINGS OF FACT
At the hearing, the parties stipulated, and I find:
1. White Pine Mine is owned and operated by Applicant, White Pine
Copper Division, Copper Range Company.
2. White Pine is subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977.
3.

I have jurisdiction over this proceeding.

4. The subject order and modifications were properly served upon Applicant by a duly authorized representative of the Secretary of Labor. These
documents may be admitted into evidence solely for purposes of establishing
their issuance.
Applicant's witnesses testified about the background of the bolt removal
program which resulted in the issuance of the order. ];./
Brian McGunegle, White Pine's superintendent of technical services, has
a bachelor's degree in mining engineering, and a master's degree in rock
mechanics, as well as a good deal of experience in mining engineering at
White Pine and elsewhere. He stated that the White Pine Mine had been in
operation since the early 1950's, and that about 80 to 90 percent of the
mined area had roof bolts. The roof, or back, of the area known as Unit 56
was sandstone which was relatively stable and strong. Early in 1980, the
company decided to conduct a test involving the removal of roof bolts in one
area of Unit 56. The purpose of the test was to determine i f mining could be
performed at White Pine without the use of roof bolts. He stated that the
roof bolts in Unit 56 were four-foot bolts on four-foot centers. They had
fn. 1 (continued)
established the test area is stable. This area is closed to all persons
except those selected to perform the test duties and inspection." ·
The first modification read:
"A violation of a mandatory standard was not observed. This action is
taken to modify Order No. 298441, dated 2-19-80. A fall of ground occurred
in NlOl & N98 & W25 intersection in Unit 56 test area immediately following
removal of roof bolts. This area is closed to all persons and no further
work shall be performed until roof support has been installed. * * *"
The second modification read:
"This action is taken to modify Order 298441, dated 2-19-80. No more
roof bolts shall be removed from the areas that are already bolted unless
supplemental support is provided. That support shall be on the same centers
as existing b~lts. Only after the roof bolt removal program is completed
shall the supplemental support be removed."
2/ Although MSHA's witnesses testified first at the hearing, in the interest
of clarity the testimony of Applicant's witnesses will be synopsized first.

212

been used 11 as a matter of habit," and were installed in this area in the
latter half of 1979, when the area was mined. He stated that the area had
an excellent back and that the operator expected little difficulty when the
bolts were removed in the southern part of the test area. Farther north,
however, where there was a roof fault, it was expected that some loose rock
would fall.
The test began on February S, 1980, when the first roof bolts were
removed. The company decided to use two experienced foremen to do the
actual bolt removal. The safeguards that were utilized included use of
retreat mining, 3/ convergence data, 4/ borescope holes, 5/ warning lights
and gauges, !!_/ and roof sounding. J_/ Mr. McGunegle stated that loose rock is not an unusual condition, and
can be present regardless of whether bolts are in the roof. On crossexamination, he insisted that the area was basically stable, although there
was loose rock near the faults. He stated that bolts can support some
loose rock, but that beyond that, in a "massive competent" sandstone area
such as this, they serve no function.
Mr~ McGunegle stated that on February 7, 1980, two days after the test
began, he went to the local MSHA office with Julio Thaler, the mine superintendent, and Albert Osenich, White Pine's safety director. The men briefed
MSHA inspector William Carlson about the test which they had begun two days
earlier. Mr. Carlson expressed concern that the test area was not representative of the general roof conditions in the mine, and that the miners would
not accept the results of the test. Other than that, however, Mr. Carlson
indicated no disapproval at the meeting.

'}_/ In retreat m1n1ng, the mining operation, or in this case the bolt removal,
proceeds in an outby direction so that the men doing the work were backing
away from the area where bolts had been removed. The men were thus operating
under supported roof.
4/ · Convergence data is gathered by taking measurements with a device called
an "extensometer rod" to determine the distance from the floor to the roof.
These measurements are taken at periodic intervals and compared to determine
whether there is any downward movement of the roof. These rods are capable
of measuring roof sags as small as 1/1000 of an inch. Mr. McGunegle stated
that generally, a roof which is unstable will start to move downwards and
this movement will be reflected in the convergence data. He also testified
that he had personally taken some convergence readings in this area, and had
assisted in retrieving bolts from unbolted areas.
·5/ The use of borescopes, or stratascopes, involves drilling holes in the
roof and shining a light into the holes to examine for signs of shifting or
other instability. Steel tape measures may also be inserted into such holes
to feel for separations in the roof layers.
6/ Gauges and warning lights are attached to extensometer rods to detect
any sagging in the roof and measure the amount of sag.
7/ Sounding involves striking the roof with a bar and listening for a
hollow or "drummy" sound which would indicate an unstable roof.

213

Applicant's next witness was Joe Maher, White Pine's director of mine
planning and engineering. Mr. Maher also has a degree in mining engineering.
At the time of the test in Unit 56, he was in charge of ground control at
White Pine. He gave testimony similar to Mr. McGunegle's concerning the taking of convergence data at various reference points via an extensometer. He
agreed that this data monitors roof changes at 1/1000 of an inch increments.
He explained that convergence data is gathered by a team of technicians and
that graphs are compiled. He stated that there was always convergence going
on to some degree, and that the amount of convergence varies throughout the
mine. It is therefore important to look for departures from established
trends, such as increases in the rate of convergence in a particular area.
Mr. Maher explained that a mechanical roof bolt performs the functions
of suspending material from higher strata, keystoning, 8/ and inducing interbed friction within roof strata. He stated that the test site in Unit 56 had
been selected because its structure was "massive sandstone [with] no bedding
planes and shale," and the company felt it could get by with fewer bolts in
this area. The men did not think the bolts were needed for the purposes of
helping interbed friction or keystoning. Mr. Maher felt that the majority of
roof bolts contributed nothing to the support of the roof, but that a small
percentage contributed either by suspension or keyst:oning.
Mr. Maher stated that informal discussions were held in early or midJanuary, 1980, concerning performing the test in this area. It was decided
to use a Joy pneumatic roof bolter which had a canopy and which allowed the
operator to work 10 to 12 feet from the end of the boom. Mr. Maher stated
that signs were placed at all entries to the area. The signs read:
"Restricted Area - Authorized Personnel Only." Mr. Maher selected two foremen to perform the test. He emphasized that they would be retreat mining and
using warning lights, dial gauges, and roof sounding. They also periodically
trimmed any loose roof. The men proceeded in a cautious manner, working
slowly, keeping detailed records, and keeping track of any loose roof that
came down.
Mr. Maher agreed with Mr. McGunegle that in the southern portion of the
area, there was a massive roof with little or no loose. The men expected
little trouble with the roof there. Upon removal of the roof bolts, there
was no roof sag, and only a few small pieces of ground fell. He regularly
visited the area, and was prepared to visit it daily if convergence data
revealed a possible problem. Since convergence did not occur in the southern
area, he visited it every other day.
In the northern part of the area, there was no convergence from
February 5 until February 21, 1980. On February 21, there was a large roof
fall. Mr. Maher stated that the reason for the fall was that the roof bolts
8/ "Keystoning" is a term used to denote the"use of a bolt to hold up a
block of roof and "key11 it to other such blocks.

214

had been holding that large piece up. He stated that he visited the test area
on March 13 with Mr. Carlson, and on April 1 with another MSHA inspector,
Wally Lutzens.
Mr. Maher also stated that he had telephoned Mr. Lutzens on February 7
to inform him of the test and the procedures. Mr. Lutzens expressed concern
about safety and recommended the use of temporary supports. Mr. Maher did
not use temporary supports because he felt they would prevent him from measuring roof movements after the bolts were removed. Mr. Maher felt his method
was safe, and temporary supports would create problems. He was particularly
concerned that in removing such supports, the men would have to drag them
out of the area and possibly dislodge other supports. He reiterated that
based upon available convergence data he felt the roof was stable. However,
he admitted that at the point where the large piece of rock fell, there was
no indication in the convergence readings that the roof might come down. He
stated that the fall was in the immediate roof and not in the main roof,
and he repeated that there must be convergence before a fall. This was, in
his words, a "physical law."
Wally Olkkonen testified that he was involved in the test from start to
finish, operating the roof bolter, taking notes, and keeping records. He
repeated the list of safety precautions which the crew utilized, including
the use of light gauges, dial gauges, roof sounding, observation holes, and
retreat mining. He stated that the operator of the roof bolter was always
under bolted ground when manipulating the controls. He stood under the
machine's three-foot-square canopy. The other man on the crew was behind the
bolter under bolted roof, but not under a canopy. The machine's boom
extended out 10 to 12 feet. Mr. Olkkonen added that the men were required to
retrieve the removed bolts, the lights, and the gauges, and that this
required them to go under unbolted roof. He stated that he never had any
indication of convergence, and that no warning lights came on during the
process. He kept a warning gauge and light in front of him and behind him.
Mr. Olkkonen felt that removing bolts was easier than installing them,
since removal is a one-step process. In installing bolts, a hole has to be
drilled first, and then the bolt has to be installed.
He also stated that in one area where he had noted loose rock, he
sprayed the edge of the loose with white paint. This was between W-21 and
W-23 at N-98 near the intersection of 98 and 23. 9/ Although this was an
area of suspected loose, it did not fall. At N-101, between W-25 and W-27,
there were two areas of loose which fell on February 20. This was a faulted
area, and the men anticipated loose coming down. When they sounded it with
a bar, there was a drummy sound.
'}_/ The coordinates used in this Decision are taken from the mine map which
was admitted into evidence as White Pine's Exhibit S.

215

The men also got a drummy sound in the area at W-25 and N-98. Visually,
Mr. Olkkonen could see a couple of low-angled faults. The two faults intersected, and there were two areas of loose which overlapped each other. Looking from the side, there was a wedge-shaped, low-angled fault. The men
started removing the bolts at the southwest corner of the intersection on
February 21 and worked backwards. As they worked across the first piece of
loose, they were expecting it to fall. It did not fall, however, until they
had removed the bolts from the second, larger piece of loose. Mr. Olkkonen
reasoned that the two pieces were keyed together. The section of roof which
fell was approximately 20 feet by 28 feet, and varied between six and
24 inches in thickness.
On cross-examination, Mr. Olkkonen was asked whether roof falls sometimes happen very rapidly. After some hesitation, he answered, "Well, it
depends on what kind of roof fall you are talking about. 11 He described the
February 21 fall as slow and controlled. With respect to the other area
which he had marked as faulted, he understood that it was barred down, but
he was unsure of this.
William Dorvinen, who has been employed by White Pine since 1956, testified that he operated the roof bolter for nine days, including the period
from February 19 to February 21, 1980. He also testified about the various
safety precautions which were taken during the bolt removal process. His
testimony was consistent with Mr. Olkkonen's concerning where the men on the
crew stood while the bolts were being removed. He added that the machine's
operator was 12 to 15 feet behind the bolt that was being worked on, and that
the other man was about 22 feet away from it. He stated that bolts were
removed a row at a time, from right to left, where the back seemed good. If
the back did not seem good, they removed one bolt at a time and retrieved it
before proceeding. In the nine days that Mr. Dorvinen was on the project, he
detected no separation from his examination of borescope holes, and he never
saw a safety light come on or observed any convergence in the dial gauges.
He stated that Mr. Olkkonen kept daily notes, and the company's rock mechanics
took convergence readings. These men also told Mr. Dorvinen that there had
been no convergence. When he heard a drum.my sound in the roof, the men were
more cautious, and anticipated the back to fall as they removed the bolts.
Mr. Dorvinen was present at the February 21 fall near the intersection
of N-98 and W-25. The men had sounded the roof and heard a drummy sound.
They decided that the loose would fall. He added that he told MSHA inspector
Bruce Haataja that they expected it to fall. Before removing the bolts, they
drilled and checked borescope holes. They set one gauge and light between
the front of the machine and the boom, 10/ and they set another gauge and
light behind the machine. They removed~he bolts from right to left, moving
the gauge and light as they removed each bolt. The warning light behind them
10/ Mr. Dorvinen stated that normally the men would place a warning light
and gauge in the unbolted area. Here, however, because of the less secure
roof, they placed the light and gauge between the boom and the machine.

216

was the only source of light in that area, since the area was dark, and the
men constantly glanced at it to see if it had come on. He noted that on the
north side there were separation lines where the ground had moved.
'When the loose piece came down, he jumped back. He noted some sagging
before they removed the last two bolts. He also stated that the thinnest
part of the loose was located near where the last bolt was removed, i.e.,
closest to where the men were standing. He asserted that he never felt he
was in danger at any time during his nine days in the area.
On cross-examination, Mr. Dorvinen stated that there were no discussions
with Mr. Haataja that day with regard to stopping operations or with respect
to continuation of the program after the fall. He testified that work was
stopped after the fall only because it occurred at or near the end of the
working shift. 11/ He also stated that there was other mining activity in
Unit 56, approximately 300 feet to the north of the test site.

When cross-examined by the Union representative, Mr. Dorvinen agreed
with Mr. Olkkonen that bolt removal was safer than bolt installation, and
that ground falls -are predictable through convergence readings. He also said
that if the large piece of ground had fallen on the machine it would have
only shaken up the machine's cab. He added that he had not been in the test
area since F~bruary 21, 1980.
Albert Goodreau also testified for Applicant. Mr. Goodreau is a safety
engineer at 'White Pine who has been with the company for eight years. His
primary duty is to accompany MSHA inspectors on the mine property. He testified that he was served with the withdrawal order on February 19, 1980. The
first modification was issued· to another 'White Pine official, a Mr. Butson,
on February 22. The second modification was issued to Mr. Goodreau on
February 25.
MSHA's first witness was Bruce Haataja, the MSHA inspector who issued
the withdrawal order and modifications. He was assigned to inspect the test
area by his supervisor, William Carlson. Mr. Carlson told Mr. Haataja there
was a possibility of someone getting hurt in the test area as the bolts were
being removed from the roof.
Mr. Haataja stated that the bases for his conclusion that an imminent
danger existed was that the back was unsupported, that it was drummy in some
places, and that the roof had fallen in three areas. The roof in these areas
was faulted. He testified that when he arrived at the test site on
February 19, he found that warning signs had been put up by 'White Pine to
keep everyone but authorized personnel out of the area. Mr. Haataja added
MSHA's "Keep Out 11 signs to the company's signs.

11/ Mr. Dorvinen explained that in this unit, as elsewhere in the mine, there
were three shifts, and work went on seven days a week. However, the bolt
removal was done only during one shift, which ran from 7:00 a.m. to 3:00 p.m.

He stated that when the two foremen were removing roof bolts, they always
stood behind and in the vicinity of the roof bolter. With the boom of the
bolter extended, the men were 10 to 15 feet behind the bolts being removed.
The machine's operator was under a protective canopy. Mr. Haataja said that
the men were using dial gauges and warning lights, and that he never saw a
light go on that day, nor did he see any significant convergence indicated on
the dial gauges. He admitted that he did not personally sound the roof with
a trimming bar, and that he did not observe a ground fall on February 19,
although he did see some fallen ground on the floor. The inspector was not
sure when this loose came down.
Before issuing the withdrawal order, he did not go to the rock mechanic's
office and review available convergence data. He stated that he was unaware
of any rock instability found by the rock mechanics as of February 19. At
one point, he was asked, "[Y]ou didn't have any indication on the day you
issued that order that there was anything in the test area that was unstable,
did you?", and answered: "I don't know** *we didn't have time to get convergence readings in there to make the decision. The roof bolts were removed.
That condition right there was unstable."
Mr. Haataja visited the test area again on February 20 and 21. At about
12:15 p.m. on February 21, he observed the large roof fall. He issued the
first modification to the withdrawal order at 7:00 a.m. on February 22. He
was asked whether the men who were working in the area told him that it was
going to fall, and answered, "They may have." He was also asked why he
waited approximately 20 hours after the fall to issue the modification. The
inspector answered, "I wanted to discuss the situation with my supervisor."
He was then asked, "In other words, you didn't think at the time you observed
this fall of ground that the people who were engaged in the operation were in
such danger that they should stop operations right then and not continue to
remove another roof bolt?" He answered: "Well, if I didn't issue the order
at the time, I guess I didn't."
Mr. Haataja also stated that after the roof fall, he did not tell the
men to stop work. On recross-examination, he testified that in the three or
four days that he was in the test area (between February 18 and February 22),
he never observed any kind of peel-back of the roof. When the roof fell on
February 21, it hit the roof bolter, but Mr. Haataja did not recall the
equipment being damaged. Further, although the inspector was close to the
fall, no loose came down in the immediate area where he was standing.
William Carlson, a supervisory mining engineer for MSHA, testified that
there was a meeting in his office on February 7, 1980, concerning the White
Pine test program. The meeting was attended by Mr. McGunegle and two other
White Pine officials. These men briefed Mr. Carlson about the test, and
informed him that the bolt removal had already begun. Mr. Carlson expressed
some concern that this type of test was unusual and he assigned Mr. Haataja
to follow the program and observe the bolt removal. On cross-examination, he
recalled making this assignment after he received a telephone call from

218

Mr. Cestkowski, on behalf of the Union. Mr. Carlson stated that he was surprised to hear from Mr. Cestkowski, since there had always been cooperation
between management and the Union concerning "anything out of the ordinary,"
and things had always gone smoothly. Mr. Cestkowski indicated that the Union
was never consulted about this test. MSHA is required to respond to any such
complaint, whether it comes from a miner or from a representative of miners.
In response to Mr. Cestkowski's call, Mr. Carlson sent two inspectors to
check the test site on February 15. These men, Inspectors Spencer and Stile,
found the area to be dangered off and did not issue any orders. Mr. Haataja
was assigned to follow through on their initial inspection.
Mr. Carlson testified that the Union complaint indicated MSHA should
obtain some data on the test; the complaint did not allege imminent danger.
He stated that he cannot cite a metal-nonmetal operator simply for changing
its roof control plan unless he observes a violation of a standard. He
admitted, however, that the concept of mining without support was unusual for
this unit, which had always been supported with roof bolts.
William Lutzens, an MSHA mining engineer, testified that on April 1,
1980, he visited the test area. He stated that the area is composed mainly
of sandstone with some exposed shale near a fault which traverses the area.
This fault is on the northern side of the test area. The roof near the fault
was disturbed, fractured, and less competent than the roof in the southern
side of the test area. Mr. Lutzens recommended that the operator install and
remove temporary supports in a "leap-frog" manner to protect the workers. JJ:_/
On cross-examination, Mr. Lutzens conceded that White Pine generally had
a very good ground control program. In his opinion, ground control is "a
little bit of an art rather than a science," and the White Pine people are
good practitioners of the art. He stated that his recommendation to remove
the bolts in a leap-frog fashion was based upon a roof control standard for
coal mines (30 C.F.R •. § 75.200-14), and what he considered to be "good mining
practice. 11 He admitted that he never actually observed the bolt removal
process in the test area.

Mr. Lutzens stated that roof bolting generally has three purposes: (1)
to support unsupported particles; (2) to increase friction between layers and
prevent sliding; and (3) to key irregular fractures. Mr. Lutzens said that
aside from the large fault at the northern side of the test area, there were
approximately 11 smaller faults. He stated that one of the~e, a wishbone
fault which he counted as two faults, might possibly be considered unsafe.
He stated that during an April 1 examination, he got a drummy sound from the
roof and saw some half-moon areas in borescope holes. This usually indicates
12/ "Leap-frogging" involves the installation of temporary supports near the
roof bolts. After the bolts are removed, the supports are pulled away with
chains. This procedure would be followed row by row as the workers proceeded
backwards, in an outby direction.

219

strata slippage. However, he also stated that the convergence data indicated
stable roof.
While this is generally a good indication of stability, it is
not infallible, he said.
John Cestkowski testified on behalf of the Union. He stated that he has
been employed at White Pine for the past 21 years, and is the president of the
local union. He also serves as chairman of the underground safety committee,
the surface safety committee, and the general safety committee. He was first
advised of the test on the morning of February 5, 1980, by Julio Thaler, the
mine superintendent. He told Mr. Thaler that the Union opposed the test and
would protest it. He was concerned that the bolt removal might cause a
cave-in which could extend to other mining fronts where people were working,
and endanger miners in these areas. Mr. Cestkowski reasserted his opposition
to the test at a meeting with management officials held on February 13, 1980.
He stated that he called Mr. Carlson around February 13 or February 14 and
requested an investigation of the test site to determine if the test was
being performed safely.
He testified that the company's warning signs were in big, bold letters
and were larger than the danger signs placed by MSHA. However, he felt that
the advantage of having MSHA's smaller signs was that the company's signs
sometimes fell down or were removed. There was no evidence, however, that
the company's signs in the test area were removed.
Mr. Cestkowski disagreed with Mr. McGunegle's contention that 10 to
20 percent of the mine was unsupported. In his opinion, 98 to 99 percent of
the mine had some sort of roof support. He knew of no other situation in
which White Pine had ever removed any roof bolts, and since 1960, he had
never seen any area in White Pine without roof support. He also took issue
with previous testimony concerning the reliability of convergence data in
predicting roof falls. Mr. Cestkowski noted that on April 23, 1980, there
was a fall of ground in Unit 95, where miners were working, and he indicated
that convergence data had not been helpful in predicting that fall.
Finally, Mr. Cestkowski disputed the company's contention that it is
safer to remove bolts than to install them. He stated that when you remove
bolts you do not know what will happen when the bolt comes out. On crossexamination, he stated that the piece of rock that fell in Unit 56 was sandstone. He added that if this rock had hit the roof bolting machine, it would
have torn the machine's canopy off or tipped the machine over.
Dale Sain also testified for the Union. He has been a miner at White
Pine since 1956. He is a Union committeeman and member of the Union's executive board. He testified that in Unit 95, where he works, there had been a
roof fall in April 1980, and that prior to the fall the rock mechanics had
read convergence points and said nothing about the readings. This led
Mr. Sain to believe that the convergence data indicated a safe roof, and his
foreman told him that the convergence did not indicate there would be a fall.
Mr. Sain also stated that he had several hundred hours of experience
operating a roof bolter of the type that was used in removing the bolts in

220

Unit 56. Based on this experience, he testified that a two- to three-ton
chunk of rock hitting the machine could flip it over. He added that he knew
of one fatality which occurred in 1957 under this type of ground. On crossexamination, however, he stated that the company was not using convergence
data, warning lights, or dial gauges at that time.
Mr. Sain disputed the company's contention that 10 to 20 percent of the
mine was unsupported, and agreed with Mr. Cestkowski that 98 to 99 percent
of the mine was supported. He disagreed that it was safer to remove bolts
than to install them. He explained that when a miner is installing bolts, he
is usually about 10 feet away from solid rock, whereas in bolt removal the
entire area is open.
White Pine recalled Al Goodreau as a rebuttal witness. Mr. Goodreau
stated that he was familiar with the facts and circumstances surrounding the
roof fall in Unit 95. The information which he collected on that incident
revealed that at 2:30 p.m. on the day in question, the warning lights came
on, and the dial gauges indicated that the roof had sunk 12/1000 of an inch.
The warning lights and gauges were reset, and at 2:40 p.m., the lights went
on again. The gauges indicated that the roof had come down 18/1000 of an
inch. The lights and gauges were reset once more, and at 2:55 p.m., the
gauges indicated that the roof had come down a total of 54/1000 of an inch.
The roof caved in shortly after that, at approximately 3:05 p.m.

CONCLUSIONS OF LAW
Section 107(a) of the Act reads:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c), to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such imminent danger and the conditions or practices
which cause such imminent danger no longer exist. * * *
The Commission's predecessor, the Interior Board of Mine Operations
Appeals, set up the following test to determine whether a particular situation constitutes an imminent danger:
[W]ould a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate an
impending accident or disaster, threatening to kill or to
cause serious physical harm, likely to occur at any moment,
but not necessarily immediately? The uncertainty must be of
a nature that would induce a reasonable man to estimate that,

221

if normal operations designed to extract coal in the disputed
area proceeded, it is at least just as probable as not that
the feared accident or disaster would occur before elimination
of the danger.
Freeman Coal Mining Corporation, 2 IBMA 197, 212 (1973), aff'd sub nom.,
Freeman Coal Mining Company v. Interior Board of Mine Operation"S'"Ap])eais,
504 F.2d 741, 745 (7th Cir. 1974). See also Old Ben Coal Corporation v.
Interior Board of Mine Operations Appeals, 523 F.2d 25, 32 (7th Cir. 1975).
The test of imminence is objective, and "the inspector's subjective opinion
need not be taken at face value." 2 IBMA at 212. However, the applicant in
a proceeding such as this one bears the burden of showing by a preponderance
of the evidence that imminent danger did not exist. Lucas Coal Company,
1 IBMA 138, 141-42 (1972); Carbon Fuel Company, 2 IBMA 42 (1973). In this
case, I believe White Pine has sustained this burden.
The company showed that although roof bolt removal is an intrinsically
dangerous process, the procedures which it adopted and carried out did not
present an imminent danger either on the date of issuance of the initial
withdrawal order or on the dates when the first and second modifications were
issued. These procedures included dangering off all entrances to the test
area with large, conspicuous signs that read, "Restricted Area - Authorized
Personnel Only." The testimony was that the signs were larger than the
"Keep Out" signs that MSHA added after the imminent danger order was issued.
The test area selected by the operator had a thick sandstone top. A sandstone top is more stable than a slate top. The men selected to remove the
bolts were experienced and highly trained foremen. They appeared to be
knowledgeable in safety techniques and were extremely cautious in removing
the bolts. They proceeded in a retreat manner, while visually inspecting
the area, sounding the roof, and using warning lights and dial gauges. They
had the benefit of maps which indicated that the southern part of the area
had no significant faults, although the northern part had a large fault.
White Pine established 19 convergence points in the test area, including one
at each intersection. Convergence readings were regularly taken to determine
if there was any downward movement of the roof. The miners used a roof bolting machine which had a 10- to 12-foot long boom, and a three-foot-~quare
metal canopy. One miner was protected by the canopy; the other miner stood
at the rear of the machine, under supported roof. Warning lights and dial
gauges were placed in front and in back of the machine. The men regularly
observed these gauges.
MSHA entered the picture when representatives of the company visited the
office of Inspector Carlson on February 7, 1980. They briefed him about the
test even though they were not obligated to obtain MSHA's permission.
Mr. Carlson did not object to the test, although he had some doubts about the
reaction of the miners to the test. When the Union heard about the test, it
complained to MSHA. MSHA investigated the complaint, as it is required to do.
MSHA then became concerned about the test and Inspector Haataja issued the
withdrawal order. The order did not curtail the test, but superimposed MSHA's

222

warning signs over the signs of the operator. There was no ba~is for issuing
this order. The testimony of Inspector Haataja does not support the contention that an imminent danger existed at the time.
The first modification was issued after the February 21 roof fall
described in the testimony. The evidence was that this modification was not
issued until February 22, the day after the fall, and only after Mr. Haataja
conferred with his supervisor, Mr. Carlson. I do not believe Mr. Haataja considered this situation to be an imminent danger on his own. If he had, he
would have modified the order immediately after the fall. Apparently, he considered this a debatable matter. In fact, one of the foremen, Mr. Dorvinen,
testified that Mr. Haataja did not indicate after the fall that he was going
to modify the order, and that the inspector did not comment one way or the
other. There was no additional justification given for the issuance of the
second modification.
Admittedly, the February 21 roof fall was substantial. However, the evidence was that the company had anticipated it from visual observations and
soundings. They knew that there was a fault in the area. The precautions
that White Pine took at that time were reasonable to protect the safety of
the men involved. Therefore, I hold that the order and its modifications
were improperly issued.
·aRDER
Withdrawal Order No. 298441, dated February 19, 1980, and its modifications of February 22 and 25, 1980, are VACATED.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
Ronald E. Greenlee, Attorney for White Pine Copper Division, Copper
Range Company, Peninsula Bank Building, Ishpeming, MI 49849
(Certified Mail)
Gerald A. Hudson, Attorney, Office of the Solicitor, U.S. Department
of Labor, 231 West Lafayette Street, Room 657, Detroit MI 48226
(Certified Mail)
John Cestkowski, President, Local Union 5024, U.S.W.A., Box 101,
Watersmeet, MI 49969 (Certified Mail)
Harry Tuggle, Assistant Safety Director, U.S.W.A., #5 Gateway Center,
Pittsburgh, PA 15222 (Certified Mail)
Ernest Ronn, District 33 Co-ordinator of Safety, 706 Chippewa Square,
Marquette, MI 49855 (Certified Mail)
Sylvia Guisfredi, Staff Representative, District 33, 80 Elm Street,
White Pine, MI 49971 (Certified Mail)

223

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

(703) 756-6225

'JAN 1 4 '981
Contest of Order

ITMANN COAL COMPANY,
Contestant

Docket No. WEVA 80-166-R

v.

Order No. 657832
November 29, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD~INISTRATION (MSHA),
Respondent

Itmann No. 3 Mine

Civil Penalty Proceeding

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

Docket No. WEVA 80-380
A.O. No. 46-01576-03051 V

v.

Itmann No. 3 Mine
ITMANN COAL COMPANY,
Respondent
DECISION
Karl T.
Esq., Pittsburgh, Pennsylvania, for Itmann
Coal Company;
Stephen Kramer, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for the Secretary of Labor.
Before:

Judge Edwin S. Bernstein

The hearing in these consolidated proceedings was held on July 24, 1980,
and November 18, 1980, in Charleston, West Virginia. Both the contest proceeding and the penalty case relate to Order No. 657832, which was issued to
Itmann on November 29, 1979, for an alleged violation of 30 C.F.R. § 75.301.
That standard provides in pertinent part: "The minimum quantity of air
reaching the last open crosscut in any pair or set of developing entries
and in any pair or set of rooms shall be 9,000 cubic feet a minute, and the
minimum quantity of air reaching the intake end of a pillar line shall be
9,000 cubic feet a minute." The order alleged:

224

The quantity of air reaching the intake end of Cabin Creek
6-Panel Longwall (040 Section) was only 7,350 CFM as measured
with a smoke cloud; anemometer would not turn sufficiently to
read the air quantity. The evening shift foreman stated that
he was taking the intake air reading in the crosscut between
the No. 1 and 2 entries and that he thought that this was
the same place where the day shift foreman and fireboss was
[sic] taking their readings. The crosscut was the wrong place
totake the intake air reading in that it includes belt conveyor ventilation air. All foremen are trained in ventilation controls and practices annually and should have knovm
this was the wrong location to take intake readings to the
pillar line. The tail of the longwall was not cutting out
into the tail or return air entry, and the tail of the longwall line was blocked with coal and rock. Two small holes
were present leading into the return entry but was [sic]
blocked with a roof fall. The return entry had at least
two roof falls present in the entry blocking the flow of air.
The operator and his agent were aware of the roof falls and
should have been aware of the coal blocking the return air
entry. The operator should have exercised more caution in
determining the quantity of air reaching the intake end of
the pillar line in Cabin Creek 6-Panel, a section which
liberates methane when coal is being cut. Air reading and
other evidence indicates that the air in this section has
been low for a significant period of time.
Itmann argued that the existence of less than 9,000 cubic feet a minute
(CFM) does not automatically constitute a violation of the standard. ):'he company contended that MSHA must also prove that the operator failed to take
certain remedial steps before a citation or order can be issued. MSHA strongly
opposed this position, arguing that the regulation is violated anytime air
volume dips below the required 9,000 CFM.
Findings of Fact
At the hearing, the parties stipulated:
1. Itmann Coal Company is the owner and operator of the Itmann No. 3
Mine, located in Wyoming County, ~est Virginia.
2. The Itmann No. 3 Mine is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, and I have jurisdiction over these
proceedings.
3. The inspector who issued the subject order and termination was a
duly authorized representative of the Secretary of Labor.
4. Copies of the subject order and termination are authentic and may be
admitted into evidence for the purpose of establishing their issuance, but not
for the truthfulness or relevancy of any statements contained therein.

22{)

5. The appropriateness of the penalty, if any, to the size of the operator's business should be determined based upon the fact that in 1979, the
Itmann No. 3 Mine had a total output of 535,357 tons. Mine No. 3-A produced
388,481 tons and Mine No. 3-B produced 146,876 tons. The controlling company,
Itmann Coal Company, had a total output of 1,627,963 tons in 1979.
6. The history of previous violations should be based upon the fact that
Itmann had a total of 439 assessed violations in the preceding 24 months,
during which period there was a total of 856 inspection days.
7. The alleged violation was abated in a timely fashion, and the operator demonstrated good faith in attaining abatement.
8. The assessment of civil penalties in these proceedings will not
affect the operator's ability to continue in business.

9. In addition to the order which is the subject of these proceedings,
Order No. 662681, dated March 4, 1979, and Citation No. 255612, dated
January 30, 1979, were issued under Section 104(d)(l) of the Act.
ISSUES
The issues in these proceedings are:
1.

Whether the operator violated 30 C.F.R. § 75.301 as alleged;

2. Whether the alleged violation was caused by an unwarrantable failure
of the operator to comply with the standard;
3. Whether a written copy of the subject order was served on the operator with reasonable promptness; and
4. If a violation is found, what civil penalty should be assessed taking
into account the six criteria in Section llO(i) of the Act. In order to make
a determination on this issue, it is necessary to determine whether and to
what extent the operator was negligent, and the gravity of the alleged
violation.
During the first day of the hearing, James Bowman testified for MSHA, and
Donny Coleman testified for the operator. Mr. Bowman is the MSHA inspector
who issued the subject order. He testified that on November 29, 1979, he was
told by his supervisor at MSHA's Pineville, West Virginia, office that MSHA
had been notified about a possible ventilation problem at the Itmann No. 3
Mine. Mr. Bowman was the resident inspector at the mine during the time in
question. He immediately went to the mine to check on the condition, arriving
there at around 3:15 or 3:30 p.m. He first examined certain records which
the operator was required to keep concerning its ventilation program, and
issued a citation to the operator for failing to examine a particular return
entry for proper ventilation. He then traveled into the mine, accompanied by
Itmann's safety engineer, Donny Coleman. The two men went to an area known

226

as the Cabin Creek 6 Panel. This was an area where longwall mining was taking place, but there were no miners at the panel when Mr. Bowman arrived. The
inspector began making a ventilation inspection of the area, which is depicted
in Operator's Exhibit No. 2 (a copy attached to this decision as an appendix).
In this area of the mine, retreat mining was taking place. This means that
coal was being cut in an outby direction with the longwall machine. There was
a roof fall in the second crosscut outby the longwall face which caused an air
blockage. In the first crosscut outby the face, there was an accumulation of
rock-or gob. The latter crosscut was open and a man could walk through the
area. There was no blockage of air in that first crosscut. Mr. Bowman and
Mr. Coleman took several air readings at the intake end of the pillar line
near the head of the longwall machine. This point is marked with a circled
"X" on Operator's Exhibit No. 2.and is located below and to the left of the
point marked "Head." The inspector first made an anemometer check in order to
determine the velocity of air moving through the area. He obtained a reading
of 55, which he ignored since MSHA's inspection procedures do not allow readings below 100 to be used. Mr. Bowman then took a smoke cloud test, designed
to measure the volume of air moving through the area. He obtained a reading
of 7,350 CFM. The regulation requires 9,000 CFM in such situations. Finally,
Mr. Coleman made an anemometer check and obtained a reading of 55. The two
men did some. calculations and came up with a figure of 7,448 CFM based upon
the anemometer readings. Regardless of which figure is used, Itmann's counsel
agreed that the reading was below the required air volume.
Mr. Bowman then got into a discussion with Itmann officials concerning
the proper point at which the readings should be taken. The Itmann officials
contended that the ventilation reading should have been taken in the first
crosscut outby the face, where .the gob was. This was because there was a
split point between that crosscut and the intake end of the pillar line. At
the split point, some of the air which came through the crosscut was diverted
towards the pillar line and some of it was diverted in another direction. The
Itmann officials felt that if the readings had been taken in the crosscut
before the air flow reached the split point, the readings would have shown
them to be in compliance with the regulation.
Mr. Bowman, Mr. Coleman, and another Itmann official, Mr. WooCls, then
crawled across the longwall face to the tail of the longwall. Mr. Bowman discovered that there was a "panhandle" of uncut coal at the tail which had been
formed during the mining process by not allowing the longwall shear to cut
completely across the face. By reducing the distance which the shear traveled
on each pass across the face, a solid block of coal about 20 feet long had
been created at the tail. There were two small blast holes in this piece of
coal. Mr. Bowman felt that this panhandle reduced the amount of air which
traveled across the face, and that this was one reason why the air at the
split point near the longwall head was diverted away from the intake end of
the pillar line. He was told that the panhandle was created so that the
longwall machine could not cut into an adjacent area where a roof fall had
occurred. This roof fall can be seen on the left of Exhibit No. 2.

227

The inspector returned to the other side of the longwall and took an air
check immediately·outby the split point, where the rest of the air was
diverted. He found that between 6,000 and 6,250 CFM were moving through that
area.
Mr. Bowman then took a reading at the "total intake" point marked on
Exhibit No. 2. This reading was approximately 14,200 cubic feet of air per
minute. Putting these two readings together, Mr. Bowman was convinced that
a violation existed. He testified: "Through subtraction, you can tell by
that that you are going to have low air at the intake end of the pillar line,
and that doesn't even take off where the leakage that you get through the
other checks and stoppings."
The inspector stated that he issued the order verbally at 1640 hours on
November 29, 1979, by informing Mr. Coleman and Mr. Woods of its issuance.
He stated that it was normally not his procedure to issue orders in wri
until he reached the surface of the mine. He also stated that the abatement
of the order was issued at 2130 hours, also verbally. Mr. Bowman could not
remember whether he issued the written order on that day or on the following
day. He stated that in situations where he does not have printed order forms
with him, he ordinarily writes the order on a yellow slip of paper and leaves
it with the operator. However, he did not believe he followed this procedure
in this situation.
The inspector abated the order after the operator used explosives to
remove the panhandle and leveled the rock in the crosscut immediately outby
the longwall head. Mr. Bowman then obtained an air reading of approximately
9,700 CFM. The operator also cut a stall chute, which is a small mining
entry at the tail end of the longwall perpendicular to the face, which maintained the proper ventilation until the men got past the roof fall at the
tail end.
Mr. Bowman testified that in his opinion this was an unwarrantable failure violation for several reasons. First, the operator was required to conduct a preshift examination of the working face and to take an air reading
at the intake end of the pillar line. Mr. Bowman felt that the day shift
boss had taken the air reading in the wrong location and wa~ aware of the
situation at the tail end of the longwall face. Mr. Dickerson later told
Mr. Bowman that he had made his preshift examination approximately one hour
before Mr. Bowman arrived at the scene. Second, Mr. Bowman was told by the
mine foreman, Jim Justice, that there were roof falls in the area which were
affecting the ventilation to the face. Mr. Bowman also felt that the operator was taking his preshift readings in the wrong area because even after
the violation was abated, he obtained a reading of approximately 9,700 CFM,
significantly less than any of the readings which were recorded in the preshif t examiner's report book.
According to Mr. Bowman, this mine liberates approximately 1,600,000 cubic
feet of methane in a 24-hour period. This information was obtained from
laboratory analyses of air samples taken in the mine. He added that when he
was on the section, he made several methane checks and detected concentrations

228

as high as one-half percent. Mr. Bowman felt that the lack of ventilation in
the area could have contributed to a methane buildup in an area which was
inaccessible due to the roof falls. This could have led to a "severe explosion," and Mr. Bowman discussed several possib.le ignition sources in the area.
In addition to this hazard, Mr. Bowman felt that the lack of proper ventilation in the longwall area contributed to excessive concentrations of respirable
coal dust in the atmosphere.
On cross-examination, Mr. Bowman re·peated that there were no men working
in the section when he made his air measurements. He also reiterated that the
order was issued and abated verbally, but he was still unsure as to exactly
when he issued the written order.
Respondent's first witness was Donny Coleman, an Itmann safety official.
He stated that around 3:00 p.m. on November 29, 1979, Mr. Bowman arrived at
the mine and informed Mr. Coleman that he wanted to investigate something in
the mine. Since the miners on the day shift were coming out of the mine at
that time, it was close to 4:00 p.m. before the men could go down into the
mine. They proceeded to the Cabin Creek 6 Panel on the longwall section,
arriving there around 4:15 or 4:20 p.m.
Mr. Coleman stated that }tr. Bowman took an anemometer reading and a smoke
cloud reading. On the basis of the smoke cloud reading, he determined that
there were approximately 7,350 CFM present at the intake end of the pillar
line. Mr. Bowman also told Mr. Coleman that based upon the anemometer reading
and certain mathematical calculations, he found approximately 7,448 cubic feet
of air per minute in the area. Mr. Coleman testified that Ernie Woods, another
Itmann official, then took two air readings, one at the intake end of the
pillar line, and the other outby that point ·in the crosscut through which the
air passes just before it reaches the split point. The points where Mr. Woods
took his readings are marked 11 A" and "B", respectively, on Exhibit No. 2.
Mr. Coleman did not testify as to the results of the readings ¥hich Mr. Woods
took. He did state, however, that there was considerable discussion as to
where the "total air intake" reading should be taken. He disagreed that the
proper place to take such a reading was the place designated on Exhibit No. 2
by Mr. Bowman. Mr. Coleman felt that this reading should be taken just before
the split point where Mr. Woods had taken his 11 B" reading.
Mr. Coleman denied that Mr. Bowman ever told him that a Section 104(d)(2)
order was being issued. He stated that he had been with Mr. Bowman on several
previous occasions when the inspector had issued such an order, and that it
was Mr. Bowman's custom to hang a red tag on the area affected by the order.
Mr. Coleman stated that this procedure had been followed by Mr. Bowman on
seven or eight occasions in the one-year period prior to November 29, 1979.
Mr. Coleman also discussed the "panhandle" which was created by the longwall
machine. He stated that on each pass of the longwall shear across the face,
the shear would be stopped a few feet short of the tail end, thus creating a
stump of coal. The purpose of allowing this panhandle to develop was to keep
the machine from cutting into the area of the roof fall at the tail end of the

229

face where rock could fall in on the machine. Mr. Coleman disagreed with
Mr. Bowman as to ·the width of the panhandle at the time of the inspection.
Mr. Coleman contended that the block of coal was only four to six feet wide at
that time. He stated that the panhandle would later be removed with explosives
and the area shoveled out. In this manner, proper ventilation to the face
area would be maintained.
Mr. Coleman also discussed the fact that the operator was. required by law
to check the face area every two hours for sufficient air flow and for methane.
He stated that the day shift foreman would not continue to mine in that area
if the air readings fell below 9,000 CFM or if the methane content exceeded
one percent.
Throughout his testimony, Mr. Coleman maintained that he was never told
by Mr. Bowman that a Section 104(d)(2) order was being issued. However, he
did state that after Mr. Bowman took his first air reading showing the air
flow to be below 9,000 CFM, Mr. Bowman stated: "This could be an order."
Mr. Coleman denied that Mr. Bowman ever stated that he actually was issuing
an order. He also denied that a written order was issued to the operator
that evening. He added that Mr. Bowman was at the mine for approximately
five hours on the following day, November 30, and still did not issue a
written order. Finally, around 3:30 p.m. on that day, Mr. Bowman stopped
by the mine on his way home and issued a written copy of the order in question, as well as two miscellaneous citations.
Itmann's next witness was Harry Farmer. At the time the order was issued,
Mr. Farmer was the general superintendent of the Itmann No. 3 Mine. He testified that the order was not issued on the evening of November 29, when
Mr. Bowman first inspected the Cabin Creek 6 Panel. He said Mr. Bowman
returned to the mine the following morning for a follow-up inspection of the
panel. Again, according to Mr. Farmer, no order was issued, although the possibility of an order was discussed by Mr. Bowman and Mr. Farmer. Mr. Farmer
further testified that Mr. Bowman left the mine to change clothes and returned
there around 3:00 or 3:30 p.m~ It was at this time that company officials
first received a copy of the order.
David Bailey, the superintendent of the Itmann No. 3 Mine, testified that
Inspector Bowman arrived at the mine at 2:00 or 2:30 p.m. on November 29,
1979, and told company officials that he wanted to go into the mine. Donny
Coleman accompanied the inspector. By way of telephone, Mr. Bailey later
learned that Mr. Bowman was checking on a possible ventilation problem at the
Cabin Creek 6 Panel. However, he was not informed of the issuance of any
unwarrantable failure order, and none of the procedures which the company
established in such situations were put into effect. Mr. Bailey testified
that although no verbal or written order was issued that night, the men did
discuss the possibility of an order for an unrelated violation near the longwall panel. It was not until around 3:00 p.m. on November 30 that Mr. Bailey
learned that an order was issued relating to the ventilation situation at the
panel. At that time, Mr. Bowman came to the mine in his street clothes with
a written copy of the order.

230

Mr. Bailey further testified that he was informed of a low air volume
reading of approximately 7,200 CFM in the area of the Cabin Creek 6 Panel. He
stated that the foreman of the day shift, which came out of the mine shortly
before Inspector Bowman went in, had shot the panhandle at the tail end of
the longwall. This was after the day shift had completed its required
ventilation checks. Mr. Bailey felt that even if the ventilation dropped to
7,200 CFM, the company was not in violation of the standard because no coal
was being mined at that time. He added that normal ventilation was restored
when the next shift cleaned up the coal that accumulated when the panhandle
was shot.
Mr. Bailey also read several excerpts f~om company records which indicated that the ventilation in this section of the mine around the time in
question was never low, and that there was no evidence of a methane problem.
Based on this data, he concluded that there was no basis for the inspector's
allegation that there were low air readings in the section for any period of
time, or that there was a methane problem in the section. He also stated
that the proper place to take an air reading in this section was in the first
crosscut outby the longwall face (marked "B" on Exhibit No. 2).
Jerry Dickerson testified that he was the shift foreman on the
November 29, 1979, day shift. He stated that around 2:30 p.m. that afternoon, he recorded an air reading of 12,600 CFM at the intake end of the longwall. This reading was taken in preparation for shooting the panhandle which
had formed at the longwall tail. He shot the block of coal around 3:20 p.m.,
and then crawled approximately 500 feet back across the face to the longwall
head. He stated that he was not required by law to take any more air readings.
Since it was near the end of the shift, he told Ernie Woods, the shift foreman
on the evening shift, to clean up the coal which Mr. Dickerson had shot.
Mr. Dickerson also testified that the proper place to take a "total
intake air reading" in this type of section was the point marked "B" on
Exhibit No. 2, and the proper place to take an intake reading for purposes
of 30 C.F.R. § 75.303 was the point marked "A" on this exhibit. He added
that he got the 12,600 CFM reading at point "A."
Asked if he knew or should have known that the air was inadequate when
he left the mine, Mr. Dickerson replied: "There is no way that I could tell
the difference" in the air flow.
Itmann's final witness was Ernie Woods, who was the section foreman on
the longwall evening shift on November 29, 1979. Before going into the section, he was contacted by Mr. Dickerson, who told him about the need to clean
up the coal at the tail of the longwall. He stated that he arrived at the
section around 4:45 p.m. on that afternoon and found Inspector Bowman and
Mr. Coleman were already there. Mr. Woods wa~ informed by Mr. Bowman that
there was insufficient air on the section and Mr. Woods began to take
anemometer readings. He got a reading of 6,800 CFM and told his men to check
the ventilation curtains to make sure they were in place. He then crawled to
the tail end of the longwall with Mr. Bowman and discovered the loose coal

231

which Mr. Dickerson had shot on the previous shift. After approximately an
hour to an hour and a half of shooting and shoveling the coal at the tail,
Mr. Woods was able to reestablish a sufficient air flow. This was at around
6:45 or 7:00 p.m.
Mr. Woods stated that Mr. Bowman did not tell him about the issuance of
an unwarrantable failure order and that he did not hear Mr. Bowman tell anyone
else in the immediate area or within hearing range about such an order.
During the period when he was cleaning up the coal, the face conveyor of the
longwall was operating. Mr. Woods stated that Mr. Bowman would not have
allowed the men to run this electrical equipment if they were shut down for
an unwarrantable failure order. On cross-examination, however, he admitted
that MSHA inspectors allowed the operator to run conveyors during the abat~
ment of accumulation violations so that accumulations could be removed.
Mr. Woods agreed with Mr. Dickerson that the place to take a "total intake"
reading was the point marked "B" on Exhibit No. 2, and the "intake on the
head" point was marked "A."
Inspector Bowman was recalled as a rebuttal witness for MSHA. He disagreed with the testimony of Itmann's witnesses concerning the effect which
the shot fired by Mr. Dickerson had on the ventilation. Mr. Bowman believed
that such a shot would increase rather than decrease the amount of air flowing across the face, since it would spread the material around and open up
the area.
with respect to the actual issuance of the withdrawal order, Mr. Bowman
stated that he issued it verbally on the section and that he was "reasonably
sure" that he issued it in writing that night. He noted that Citation
No. 657833, which would be the. next citation in the inspector's book of
consecutively numbered forms, was issued on the evening of November 29. He
also identified Citation No. 657834, saying it was issued around 1:20 p.m.
on November 30, 1979.
Donny Coleman was recalled as a rebuttal witness for Itmann. He
reiterated his earlier testimony that he was not given a copy of the written
order until approximately 3:30 p.m. on November 30. However, he also testified that Citation Nos. 675833 and 657834 were served to him at the same
time.
Fact of Violation
I find that Itmann violated 30 C.F.R. § 75.301 as alleged. The company
did not challenge the inspector's finding that the flow of air at the point
marked 11 A" on Exhibit No. 2 was less than the 9,000 CFM required by the regulation. I also find that this was the proper
to determine the "quantity
of air reaching the intake end off' [the] pillar line" within the meaning of the
standard.
Itmann argued that this finding alone does not automatically mean that
the company violated Section 75.301. At the hearing, Itmann cited "the spirit

')
.., ,..,,
23

of the law that runs through the Section 75.300's, which is the subpart D of
the regulations dealing with the ventilation * * *·" Counsel for Itmann
attempted to draw a comparison between Section 75.301 and Section 75.308,
dealing with methane accumulations in face areas. Specifically, he argued
that a violation of Section 75.308 exists only "if a mine operator, upon
becoming aware of the presence of 1.0 volume percent or more of methane
at a working place," fails to take a series of remedial actions. These
include making immediate changes or adjustments in the ventilation of the
mine, cutting off electrical equipment, stopping all work in the affected
area, taking precautions to prevent other areas of the mine from becoming
endangered, and withdrawing miners from areas where the methane content is
1.5 percent or higher. Counsel argued that the same criteria should be
applied in determining if a violation of Section 75.301 occurred.
I have reviewed Itmann's argument on this point and find it is without
merit. The comparison between Section 75.301 and Section 75.308 does not
withstand analysis. Section 75.308 reads as follows:
If at any time the air at any working place, when tested
at a point not less than 12 inches from the roof, face, or
rib, contains 1.0 volume per centum or more of methane,
changes or adjustments shall be made at once in the ventilation in such mine so that such air shall contain less than
1.0 volume per centum of methane. While such changes or
adjustments are underway and until they have been achieved,
power to electric face equipment located in such place shall
be cut off, no other work shall be permitted in such place,
and due precautions shall be carried out under the direction
of the operator or his agent so as not to endanger other areas
of the mine. If at any time such air contains 1.5 volume per
centum or more of methane, all persons, except those referred
to in section 104(d) of the Act, shall be withdrawn from the
area of the mine endangered thereby to a safe area, and all
electric power shall be cut off from the endangered area of
the mine, until the air in such working place shall contain
less than 1.0 volume per centum of methane.
In brief, this standard provides on its face that specific remedial actions
must be taken when methane concentrations reach a certain level. The standard does not say that a vidlation occurs as soon as such levels of methane
are detected. In sharp contrast, the relevant part of Section 75.301 provides
that "the minimum quantity of air reaching the intake end of a pillar line
shall be 9,000 cubic feet a minute." [Emphasis added.] The language of this
regulation is mandatory, and there are no qualifications on it. Therefore, I
reject Itmann's argument and find that a violation of Section 75.301 occurred.
The Unwarrantable Failure Issue
In Eastern Associated Coal Corp., 3 IBMA 331, 356 (1974), the Interior
Board of Mine Operations Appeals stated that an unwarrantable failure finding

233

must be upheld where, "on the basis of the evidentiary record, a reasonable
man would conclude that the operator intentionally or knowingly failed to
comply or demonstrated a reckless disregard for the health or safety of the
miners." [Emphasis in original; footnotes omitted.] Similarly, in ---"'"--'--"Coal Company, 7 IBMA 280, 295-96 (1977), the Board held that an inspector
should make a finding of unwarrantable failure "if he determines that the
operator involved has failed to abate the conditions or practices constituting such violation, conditions, or practices the operator knew or should
have known existed or which it failed to abate because of a lack of due
diligence, or because of indifference or lack of reasonable care."
In this case, I do not believe MSHA has sustained its burden of showing
that Itmann 1 s violation of the standard was unwarrantable. I find the air
blockage which resulted in the ventilation problem was caused by
Mr. Dickerson's shooting the pa~handle at the end of the day shift. He stated
that before the shot, he obtained an air reading of 12,600 CFM, but that he
did not take an air reading after shooting the coal. When Mr. Woods' shift
came on, the air was down to 6,800 CFM. The men on Mr. Woods' shift immediately went about the task of cleaning up the panhandle area and restoring a
proper air flow. Based on this sequence· of events, I do not believe the violation of the standard was intentional or knowing or that it demonstrated a
reckless disregard for the safety or health of the workers. I accept
Mr. Dickerson's testimony that the reduction in air flow was not noticeable
·without taking an anemometer reading. I further find that Mr. Woods did not
have enough time to take his regular preshift reading before being told by
Inspector Bovm1an of the problem. In short, while a violation of the standard
occurred, the operator was, at the most, ordinarily negligent. Under these
circumstances, the unwarrantability finding must be vacated.
Issuance of the Order
Section 104(a) of the Act provides that citations must be issued "with
reasonable promptness." Inspector Bowman stated that he issued the order
verbally to Mr. Coleman and Mr. Woods at 4:40 p.m. on November 29, 1979. He
was unable to recall when he issued the written order. Mr. Coleman testified
that the inspector told him the situation could be an order, but not that it
was an order. Mr. Woods did not recall any
scussion of an order at the
site. The earliest time when the parties can be said to agree that the
written order was issued was around 3:00 p.m. the next day, November 30.
Regardless of what transpired underground on November 29, I believe the
order was issued with reasonable promptness. The testimony concerning the
oral issuance of the order is conflicting, but I do not believe that 24 hours
is an undue period of time to elapse before the issuance of a written order.
Such orders are carefully scrutinized by operators for the correctness of the
information contained therein. In my view, Mr. Bowman wanted to be sure the
order was issued on an appropriate form and that the information in it was
correct. He undoubtedly realized that a contest proceeding such as this might
result, and that the order which he issued would be an important document in
such a proceeding. I also do not believe Congress intended that the "reasonable promptness" standard be construed strictly
t MSHA. The last

234

sentence of Section 104(a) reads: "The requirement for the issuance of a
citation with reasonable promptness shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act." Therefore, I find that the
validity of the order is not affected by the method in which it was issued.
Civil Penalty to be Assessed
As stated above, Itmann was negligent in allowing the ventilation in the
relevant area to drop below the required minimum. The gravity of the violation was serious since a methane buildup could have occurred and resulted in
an explosion. Itmann is a large operator and the assessment of a civil penalty in this matter will not affect its ability to remain in business. The
parties stipulated that during the 24-month period preceding the issuance of
this order, there were a total of 856 inspection days during which the company
had a total of 439 assessed violations. Based upon the criteria in 30 C.F.R.
§ 100.3(c), I find this to be a good prior history.
The violation was abated
in good faith.
In light of these considerations, I assess a penalty of $1,000 for this
violation.
ORDER
Order No. 657S32 is AFFIRMED insofar as it alleges a violation of
30 C.F.R. § 75.301. The order's finding that this violation resulted from
an unwarrantable failure of the operator to comply with the standard is
VACATED. Itmann is ORDERED to pay $1,000 in penalties within 30 days of the
date of this Order.

Edwin S. Bernstein
Administrative Law Judge.
Distribution:
Karl T. Skrypak, Esq., Itmann Coal Company, 1800 \Jashington Road,
Pittsburgh, PA 15241· (Certified Mail)
Stephen Kramer, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

235

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Docket Ho. WEVA 80-166-R
Section·l04(d)(2) Order Ho. 0657832
Date: November 29, 1979
Itmann No. 3 Mine
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• C·

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

.JAN 1 .4 1981

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

Civil Penalty Proceeding
Petitioner

Docket No. WEST 80-20-M
A/O No. 04-00010-05014 V

v.

Crestmore Mine and Mill
RIVERSIDE CEMENT COMPANY,
Respondent
DECISION
Appearances:

Theresa Kalinski, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California, for Petitioner,
MSHA;
Jerry E. Hines, Esq., Gifford-Hill and Company, Dallas, Texas,
for Respondent, Riverside Cement Company.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed by
the government against Riverside Cement Company. A hearing was held on
Tuesday, December 16, 1980.
The alleged violation was of section 57.14-1 of the mandatory standards.
Section 57.14-1 provides that: "Gears; sprockets; chains; drive, head, tail,
and take-up pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which may be contacted by persons and
which may cause injury to persons shall be guarded." The citation, which was
issued on May 9, 1979, provides the following:

An area approximately 5 foot by 4 foot due to a material
spillage buildup below conveyor belt No. 104 was used as a
passageway near an unguarded take-up pulley with the pinch
point of the bend pulley accessible. The return area (lo~er)
of the conveyor belt was not covered or guarded to protect
employees when using this area as a passageway.
At the hearing, the parties entered into the following stipulations
(Tr. 23):
1.
mine.

The operator is the owner and operator of the subject

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
3. The administrative law judge has jurisdiction of
this case.
4. The inspector who issued the citation was a duly
authorized representative of the Secretary.
5. A true and correct copy of the subject citation was
properly served upon the operator.
6. Copies of the subject citation and termination of the
violation in issue are authentic and may be admitted into
evidence for the purposes of establishing their issuance, but
not for the purpose of establishing the truthfulness or
relevancy of any statements therein.
7. The imposition of a penalty will not affect the
operator's ability to continue in business.
8.

The alleged violation was abated in good faith.

9. In overall terms, the operator has a moderate history
of violations. In addition, the operator has a sizable history regarding this particular standard, but the interpretation of this standard has been a matter of honest dispute
between the parties, and on some occasions in the past, the
presiding judge, after hearing, has vacated citations based
upon the standard, which decisions were not appealed, but
rather were accepted by MSHA. Finally, there has been no
citation at the Crestmore Mine and facility of this standard
for the past year.
10.

The operator's size is large.

Testimony was given by the inspector who issued the citation and by the
operator's safety engineer. The inspector testified that on the day of the
inspection he saw that both the take up and the bend pulleys were unguarded
while the belt was running (Tr. 5-6). He observed that the bend pulley was
approximately 4-5 feet above the ground and that to cross underneath this
pulley a person would have to bend over and could become entangled in the
pulley (Tr. 7). The inspector believed the area under the conveyor and bend
pulley had been used as a passageway because he had seen footprints in the
area (Tr. 6). He stated that he generally cited all unguarded pulleys unless
employees could not become entangled in the pulley because of height or other
circumstances. The decision to cite a particular condition is based upon his
individual judgement and not on any pre-e~isting guidelines (Tr. 14-15).
The safety engineer who accompanied the inspector testified that the
area under the belt and pulley is not used as a walkway; the footprints in

238

the area were due to the fact that the belt had been replaced less then
one week prior to the inspection {Tr. 18-19). He stated that approximately
70 feet from the pulley assembly there was a crossover, and that the belt
itself ended approximately 80 feet from the pulley assembly {Tr. 21-22). The
engineer acknowledged that there was no barrier to prevent employees from
going under the belt at the cited area {Tr. 21). At the close of his testimony, he stated that a recent change in management has led to an improved
attitude towards safety at the company and to improved relations between MSHA
and the operator (Tr. 24-25). When recalled to the stand, the inspector
stated that the walkway over the belt was not in place on the date of the
inspection and that no other way existed for crossing the belt (Tr. 16).
I find that a violation of the mandatory standard occurred.
Both pieces of equipment are clearly covered by the cited standard.
Take up pulleys are specifically mentioned in the standard and the bend
pulley is a "similar exposed moving machine part;n Furthermore, the testimony given at the hearing by both the inspector and the operator's witness
demonstrates that these parts may be contacted by persons and consequently
may cause injury. As I have stated before, "[i]t is not necessary under this
mandatory standard to establish precisely the probability of injury or of
contact by individuals. It is enough that there may be contact and that
there may be injury." Magma Copper Company, DENV 79-320-PM et al. {August 9,
1979).
Although a serious violation occurred, the parties have agreed that the
interpretation of this particular standard has been a matter of dispute
between the parties. As already set forth I myself have, in the past, vacated
citations issued to this operator based upon this standard. Furthermore, at
the hearing the parties stipulated that there have been no citations based
upon this standard at this facility in the past year. I believe these factors
reduce the elements of negligence and fault that might otherwise be present.
Based upon the foregoing and taking into account all the statutory
criteria a penalty of $100 is assessed.

ORDER
The operator is ORDERED to pay $100 within 30 days from the date of this
decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Theresa Kalinski, Esq., Office of the Solicitor, U.S. Departm.ent of
Labor, 300 North Los Angeles Street, Los Angeles, CA 90012
(Certified Mail)
Jerry E. Hines, Esq., Gifford-Hill and Company, Inc., 8435 Stemmons
Freeway, P.O. Box 47127, Dallas, TX 75247 (Certified Mail)

239

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

'JAN 1 4 198f
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. WEST 80-21-M
A/O No. 04-00010-05015 V

v.
Crestmore Mine and Mill
RIVERSIDE CEMENT COMPANY,
Respondent
DECISION
Appearances:

Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department
of Labor, Los Angeles, California, for Petitioner, MSHA;
Jerry E. Hines, Esq., Gifford-Hill and Company, Dallas, Texas,
for Respondent, Riverside Cement Company.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed by
the Government against Riverside Cement Company. A hearing was held on
Tuesday, December 16, 1980.
The alleged violation was of 30 C.F .R. 57 .12-8.
the mandatory standards provides that:

Section 57 .12-8 of

Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through metal
frames, the holes shall be substantially bushed with insulated bushings.
The citation, which was issued on May 14, 1979, set forth the following
condition:
The trailing cable of the clinker stacker was not
connected through proper fittings at the main junction box.
The trailing cable was entered through the door of the junction box and the door fastened against the cable. The cable

240

is energized and east belt was running. 440 v. Should a
short circuit occur on the stacker electrical system which
was energized it could be a fatal hazard to three employees
who were cleaning the trailer walkway or other employees when
attempting to mount the stacker •
. At the hearing, the parties entered into the following stipulations
(Tr. 2, 33):
(1)

The operator is the owner and operator of the subject mine.

(2) The operator and the mine are subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.
(3)

The administrative law judge has jurisdiction of this case.

(4) The inspector who issued the citation was a duly authorized representative of the Secretary.
(5) A true and correct copy of the subject citation was properly served
upon the operator.
(6) Copies of the subject citation and termination of the violation in
issue are authentic and may be admitted into evidence for the purposes of
establishing their issuance, but not for the purpose of establishing the
truthfulness or relevancy of any statements therein.
(7) The imposi~ion of a penalty will not affect the operator's ability
to continue in business.
(8)

The alleged violation was abated in good faith.

(9) In overall terms, the operator has a moderate history of violations.
In addition, the operator has a small history regarding this particular
standard.
(10)

The operator's size is large.

Testimony was given by the inspector who issued the citation and by the
operator's safety engineer. The inspector testified that on the day of the
inspection he observed the clinker stacker power cable attached inside the
clinker stacker junction box and that the cable exited the box through the
box's door (Tr. 10). He stated that this was not the way in which cables
typically enter junction boxes since such cables normally enter junction
boxes through proper fittings (Tr. 10). The cable itself was not winding and
unwinding from a reel, as is usually the case (Tr. 25). Rather, the cable
was laying on the ground following the stacker, and was tied to the stacker
by a rope (Tr. 7-9). The inspector's concern was that the movement of the
stacker could cause the rope to break, creating a situation where the weight
of the cable would cause the edge or the door of the junction box to cut into

241

\

the cable, creating a shock hazard (Tr. 12). The inspector testified that if
the cable were cut and the ground and the fuses were not working properly the
junction box and the stacker itself could become energized (Tr. 12-13). The
inspector felt that if the cable had entered the junction box through insulated bushings then the likelihood of any damage to the cable would have been
significantly lessened (Tr. 28). The safety engineer testified that a new
reel for the cable was scheduled to be installed the next day (Tr. 32). The
rope used to fasten the cable to the stacker circled the cable several times,
preventing persons from pulling on the cable, which could break the connections inside the junction box (Tr. 30). He further testified to the type and
quality of the cable (Tr. 30), and stated that there was both a grounding
wire for the cable and a circuit breaker for the stacker, so that if a short
were to occur the power would be cut off, regardless of how the cable was cut
(Tr. 30-31).
I find that a violation of the mandatory standard occurred.

The regulation at issue here, 30 C.F.R. 57.12-8, requires that cables
enter the metal frames of electrical compartments "only though proper fittings." Based upon the evidence I find that the way this cable entered the
junction box did not constitute "proper fittings" and that therefore a violation occurred.
I further find the operator exhibited ordinary negligence because it
should have known that this cable was not entering the junction box in the
proper manner. Further, although any potential accident would be serious,
the likelihood of an accident occurring is somewhat remote because of the
chain of events that would have to occur before a person could be injured.

In light of the foregoing and taking into account all the statutory
criteria a penalty of $150 is assessed.
ORDER
The operator is ORDERED to pay
decision.

0 within 30 days from the date of this

Assistant Chief Administrative Law Judge
Distribution:
Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department of Labor,
500 North Los Angeles Street, Los Angeles, CA 90012 (Certified Mail)
Jerry E. Hines, Esq., Gifford-Hill and Company, Inc., 8435 Stemmons
Freeway, P.O. Box 47127, Dallas, TX 75247 (Certified Mail)

242

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

·JAN 1 6 1991
OF LABOR,
HINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding

SE~RETARY

Petitioner

Docket No. CENT 79-403-M
A/O No. 41-01643-50005

v.

Beneficiation Mine
LONE STAR STEEL COMPANY,
Respondent
DECISION
Appearances:

Richard Collier, Esq., U.S. Department of Labor, Dallas,
Texas, for Petitioner;
Donald W. Dowd, Esq., Lone Star Steel Company, Lone Star,
Texas, for Respondent.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding brought pursuant
to section 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (hereinafter, the Act).
The hearing in this matter was held on
May 7,-Y-980, in Dallas, Texas. A posthearing brief was filed by Respondent
on June 30, 1980. Proposed finding of facts and conclusions of law inconsistent with this decision are rejected.
Inspector }tichael Sanders issued Citation No. 153483 on June 7, 1979,
pursuant to section 104(a) of the Act. He cited a violation of 30 C.F.R.
§ 55.9-2 and described the pertinent condition or practice as follows:
"The
hoist brake on the Marian 183 dragline would not "hold" the bucket suspended
in the air with a normal load of material while loading trucks. The operator
had to make a complete cycle of drag, hoist and dump without stopping."
Section 55.9-2 reads as follows: "Mandatory. Equipment defects
affecting safety shall be corrected before the equipment is used."
This citation was issued in the course of an inspection conducted by
Inspector Sanders at Respondent's Lone Star Pits and Plant on June 6 and
7, 1979. This mine is an open-pit, surface strip operation.
The specific piece of equipment involved was a Marian 183 dragline.
This dragline was used primarily to excavate ore and load it into haulage

243

trucks. The dragline boom was estimated by the inspector to be 65 feet in
length. Its bucket had a capacity of 10 yards. Estimates of the weight of
a fully loaded bucket ranged from 15 to 25 tons.
In June of 1979, Respondent hauled ore both with its own trucks and
with those of contractors. When empty, each of Respondent's trucks weighed
70 tons. The cab on each of Respondent's trucks was protected from above by
a canopy. This canopy was designed to withstand heavy impact and was constructed of the same material as the truck bed - that is, "M-1 steel" with a
tensile strength of 100,000 pounds per square inch. The canopies also provided roll-over protection up to two times the weight of the truck. Elliot
Dressner, Respondent's assistant superintendent in charge of mining, and
John Irwin, Respondent's manager of safety at the times pertinent herein,
'test~fied that they believed these canopies could withstand the impact of a
falling, fully loaded bucket. Operators of Respondent's trucks were permitted to remain in their cabs while ore was being loaded into their trucks.
Because the trucks owned by contractors were not equipped with canopies or
other such overhead protection, operators of those trucks were required to
stand away from their vehicles during loading.
The dragline was in operation loading ore into a haulage truck when
observed by the inspector. He estimated that the dragline mined and loaded
25 to 30 truckloads of ore per day.
The loading sequence was as follows: The bucket was lowered to the
ground, dragged along the ground to collect material, hoisted, swung over the
bed of the haulage truck and released. The truck was positioned so that the
bucket swung over the back corner of the bed. Normally, the bucket was
released over the center of the truck bed. The operators of the dragline
were instructed not to allow the bucket to be suspended over a haulage truck's
cab.
During his examination of the dragline, the inspector asked the dragline
operator to hoist the bucket and hold it in midair. The operator responded
that the hoist brake would not hold the bucket. The inspector then had the
operator of the dragline test the hoist brake four times - once with a fully
loaded bucket, once with a bucket halfway loaded, once with a small amount
and, finally, once with an empty bucket. On each occasion, the hoist brake
failed to hold and the bucket fell to the ground.
The hoist brake was a manually activated external or check brake. When
such a brake is applied, it contacts and "squeezes" the hoist drum. The diameter of the drum was 70 inches. Its width was approximately 11-3/4 inches.
At the time the citation was issued, the brake lining was approximately
2 inches off center of the drum. The inspector believed that the brake failure might have been due to this slight misalignment. The testimony of
Respondent's witnesses established that the misalignment was not the cause of
the brake failure, but rather that it had been caused by a faulty brake
adjustment. The brake had been adjusted too tightly, resulting initially in
constant drag and overheating. Operation of the brake in this condition

caused the formation of a glaze. Even if the hoist brake is properly
adjusted, the presence of such glaze will cause the brake to slip. To abate
the condition, vinegar was applied to cut the glaze and the brake was
readjusted.
A foreman was assigned to supervise the operation of the dragline.
Although his main job was to stay with the dragline and he was on the machine
several times a day, he was not constantly at the dragline or at the dragline
site. His duties entailed "trips back to the shopn and "other chores
involving a water truck on the haul road and things like that." He remained
in radio communication at all times.
Roland Adams, Respondent's relief foreman during the pertinent times,
had operated the dragline on occasion during the two days immediately prior
to June 7, 1979. The brake was functioning properly at these times.
Safety procedures in effect at the time required that the operator of
the dragline "check brake adjustment before attempting to load", recognizing
that improperly adjusted brakes presented a "potential" accident or hazard.
John Irwin testified that the operator's running of the dragline without the
brake was in contravention of a job safety rule. Elliot Dressner testified
that the improper adjustment had not been reported to mine management and
that the failure to do so was contrary to the training and instruction given
a dragline operator.
The inspector testified that he observed two conditions during this
inspection which could have contributed to the hazard presented by the inoperative hoist brake. A drag bucket has a series of chains of large size hooked
up in harness fashion. These chains are secured to the bucket with pins of
approximately 1-1/2 to 2 inches in diameter. One of these pins was worn
three-fourths of the way through; the second was worn halfway through. He
also testified that he observed a separation of 1 inch in one of the links of
these chains.
Violation of 30 C.F.R. § 55.9-2
The record clearly establishes that the violation of 30 C.F.R. § 55.9-2
occurred as alleged. The hoist brake on the Marian 183 dragline was defective
on June 7, 1979, when observed by Inspector Sanders. A glaze had formed on
the brake lining, and, as a result, the brake could not hold the bucket
suspended in midair or halt the bucket's downward descent. This brake failure constituted an equipment defect within the meaning of the mandatory
standard.
Respondent's argument that the equipment was not defective but only
improperly adjusted is rejected. The record establishes that the brake had
been adjusted.too tightly. As a consequence, the brake overheated and caused
a glaze to form on the lining. The glaze was the immediate cause of the
failure of the brake to hold and constitutes a defect within the meaning of
the standard. Respondent's identification of the cause of the defect in no
way changes the fact that such defect existed.

245

Respondent also argued that the failure of the inspector, and hence of
the Petitioner, to correctly identify the cause of the brake defect amounted
to a failure to prove that an equipment defect affecting safety existed.
This argument is also rejected. Again, it was conclusively established on
the record that the hoist brake would not function properly and, thus, that
it was defective. The inspector's erroneous conclusion as to the cause of
the defect does not undermine the correctness of his conclusion that the
brake was defective. The absence of an operative hoist brake affected
safety. Respondent recognized that "improperly adjusted brakes" presented a
hazard. Certainly, a completely inoperative brake would present an even
greater hazard.
The procedures in effect and equipment used minimized the risk of injury
if an accident were to occur in the course of normal operations. Typically,
the bucket was swung over the rear corners of the truck bed, not the cab.
Drivers of contractors' trucks were required to step away from the vehicle
during loading. Drivers of Respondent's trucks were permitted to remain in
the cab of their vehicles because of the protection afforded by a canopy
which extended over the cab. While these procedures and protective canopies
lessened the p~obability that the defective hoist brake would lead to injury
in the course of normal operations, they did not eliminate the hazard.
Although.it may not have been absolutely necessary to use the brake during
the normal loading sequence, there was still the possibility of situations in
which the use of the brake would become necessary. For instance, employee or
contractor inadvertence or the existence of a related mechanical defect might
make necessary an immediate interruption of normal loading operations,
including suspension of the bucket. The mitigating factors reflect on the
gravity of the equipment defect. The gravity of the violation, the degree
to which safety was actually affected, is specifically at issue in the determination of the appropriate civil penalty.
Respondent advanced two additional invalid arguments in support of its
contention that the citation should be vacated. In the first of these arguments, Respondent contended that Petitioner must prove a compliance with
30 C.F.R. § 55.9-1 before it could prove the occurrence of a violation of
30 C.F.R. § 55.9-2. Section 55.9-1 reads as follows:
Mandatory. Self-propelled equipment that is to be used
during a shift shall be inspected by the equipment operator
before being placed in operation. Equipment defects affecting
safety shall be reported to and recorded by the mine operator.
The records shall be maintained at the mine or nearest mine
office for at least 6 months from the date the defects are
recorded. Such records shall be made available for inspection by the Secretary of Labor or his duly authorized
representative.
Respondent submitted "that management is under no duty to correct an equipment
defect under 55.9-2 unless it has been made known to management under 55.9-1."
Respondent also asserted that the citation should be dismissed because it was

246

the result of isolated misconduct on the part of an employee. This argument,
which Respondent styled the "isolated employee misconduct defense," was
comprised of three elements:
(1)

An isolated, brief violation of a standard by an employee;

(2)

Misconduct was unknown to the employer;

(3)

Misconduct was contrary to both employer instructions and to a
company work rule that had been uniformly enforced.

The gist of Respondent's assertions is that it should not be held liable for
the violation of 55.9-2 because it was without fault.
Section l.lO(a) of the Act reads, in partinent part, that "[t]he operator
of a coal or other mine in which a violation occurs of a mandatory health or
safety standard or who violates any other provision of the Act, shall be
assessed a civil penalty * * *·" The language of section llO(a) is clear.
The imposition of liability upon Respondent for a violation need not be
premised on the fault of Respondent or its knowledge, constructive or actual,
of the condition or practice constituting such violation.
Respondent asserted that 30 C.F.R. § 55.9-2 failed to pass constitutional muster on two closely related grounds. First, the standard was "violative of the Fifth Amendment of the United States Constitution because it is
so facially vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application." Secondly, it
was asserted that the regulation suffered from "vagueness as applied." That
is, the standard "in its application to Respondent under the circumstances of
this case was violative of the Fifth Amendment to the United States Constitution because a reasonably prudent man familiar with the circumstances of the
industry would not know that the cited standard was designed to guard against
the condition cited." These arguments are without merit.
Section 55.9-2 was intended to eliminate a wide range of hazards and was
drafted with as much exactitude as possible. Though general in its w9rding
and scope, it prohibits only conditions or practices which are unacceptable
in light of common understanding and experience of those working in the
industry. It is set out in terms with which the ordinary person in the
industry exercising common sense was able to understand and comply.
Respondent's argument that the mandatory standard suffered from "vagueness as applied" is also without merit. An inoperative hoist brake is defective equipment within the meaning of the regulation. Certainly, a reasonable
man in the mining industry would have corrected the hoist brake before using
the dragline. Moreover, Respondent recognized the necessity of maintaining
the brake in working order. Under company work rules, it was the dragline
operator's responsibility to inspect the brake prior to use. As Respondent
noted in its posthearing brief, "specific safety rules of the company promulgated under the overall safety program of the company" required that the

dragline operator report the condition to management and discontinue use of
the hoist. Respondent specifically listed improperly adjusted brakes as a
potential hazard in its job safety procedure. Respondent clearly recognized
that the condition was an equipment defect affecting safety.
Statutory Criteria
Section llO(i) of the Act requires that the following criteria be considered in the assessment of a civil penalty:
[t]he operator's history of previous violations, the
appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent,
the effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after notification of a violation.
The parties offered stipulations regarding each of these criteria except for
Respondent's negligence and the gravity of the violation.
Negligence
It was not established that Respondent knew or should have known of the
condition. Roland Adams, Respondent's relief foreman, had operated the dragline on the 2 days prior to the issuance of the citation and found that the
brakes were in good working order. It is probable that Adams was on the
dragline at the beginning of the shift during which the citation was issued.
However, the point in time at which the brake became inoperative was not
established. Moreover, it was not established that the lack of an operative
hoist brake would have been observable by management during a normal loading
sequence. The inference cannot be drawn that Adams, or any other member of
mine management, knew or should have known of the condition. The operator of
the dragline had actual knowledge that the brake was defective. However, it
was not established that he was a member of mine management. His knowledge
cannot be imputed to Respondent.
The record also showed that Respondent had a safety program, a part of
which required that the dragline operator inspect the hoist brake and adjust
it if necessary.
its

In view of the above, it is found that Respondent was not negligent in
to comply with the requirements of the standard.

failur~

Gravity
The absence of an operative hoist brake presented a serious safety hazard.
It was probable that the need for use of the hoist brake would arise and that,
because of the inability of the brake to hold the bucket suspended, that an
accident would occur. It is evident that normal operations could continue

248

without the need to resort to use of the brake. Nevertheless, the possibility
existed that the inadvertence of an employee or contractor or the existence
of a related mechanical defect might make necessary the immediate interruption of normal operations, including suspension of the bucket. The possibility of human inadvertence cannot be considered to have been remote.
Inspector Sanders estimated that the loading of haulage trucks took place
from 25 to 30 times per day. Moreover, dragline operations were not supervised constantly. The foreman who supervised the dragline made several trips
a day "back into the shop" and was responsible for "other chores involving a
water truck on the haul road and things like that," remaining only in radio
contact. An employee or contractor might easily contravene company safety
rules, just as the operator of the dragline did in this instance, and place
himself in jeopardy.
With regard to the possibility that a mechanical defect might give rise
to a situation in which the use of the hoist brake would be necessary, the
inspector actually observed defects in the chain which secured the bucket to
the dragline. The inspector believed that it could reasonably be expected
that the chain or pin would break completely because of these defects and,
if such a break occurred, use of the hoist brake would very likely be
necessary.
Respondent's eyidence, at best, would support a finding that the risk of
serious injury was low if an accident were to occur in the course of normal
operations as long as established procedures were being followed. Individuals would either be within a cab protected by a canopy or standing outside
the immediate area. John Irwin and Elliot Dressner thought that the protective canopies could withstand the impact of a fully loaded bucket. Although
this testimony was unrebutted, it does not rule out the possibility of a
serious accident. Nevertheless, in view of the high tensile strength of the
steel from which they were constructed, it is accepted for the purposes of
this decision that the canopies could withstand the impact of a fully loaded
bucket. The canopies would, therefore, provide the operators of Respondent's
vehicles with a measure of protection in the course of normal operations.
A further measure of protection was provided by the standard operating
procedure. The bucket was hoisted over the backend of the haulage vehicles.
If proper procedure were followed, the bucket would at no time be suspended
over the cab of a vehicle.
However, just as an instance of employee or contractor inadvertence or
mechanical defect might cause an accident, these occurrences could give rise
to a situation in which an individual subjected himself to the risk of serious
injury or fatality. As noted above, the possibility of human inadvertence
was not remote and mechanical defects were observed in the bucket and chains
by the inspector. It is found, therefore, that it was probable that an accident and injury would occur.
If injury were to occur, in view of the weight of the bucket, such injury
would be expected to be serious or fatal.
''!

249

STIPULATIONS
At the hearing, the parties stipulated the following:
Jurisdiction exists and Respondent is engaged in business
affecting interstate commerce. Respondent has no history of
violations under the particular standard cited. The size of
Respondent for the year 1978 for the entire company was
284,804 man-hours. For the mine involved, the size was
141,104 man-hours. This makes Respondent a medium-size
employer. The assessment of a penalty herein will not affect
Respondent's ability to continue in business.
These stipulations were accepted at the hearing by the Administrative
Law Judge and are incorporated as part of the Findings of Fact herein.
ASSESSMENT
In consideration of the findings of fact and conclusions of law rendered
above, it is found that an assessment of $100 is appropriate for the violation of section 55.9-2 under the criteria contained within section 110 of the
Act.

ORDER
It is ORDERED that Respondent pay the sum of $100 within 30 days of the
date of this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Richard L. Collier, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202
(Certified Mail)
Donald w. Dowd, Esq., Lone Star Steel Company, Highway 259 South,
Lone Star, TX 75668 (Certified Mail)

250

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

JAN 1 6 1981

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

Civil Penalty Proceeding
Docket No. CENT 80-86-M
A/O No. 34-00598-05001

Petitioner

v.
#30 Quarry & Plant
MIDWEST MINERALS, INC.,
Respondent
DECISION
Appearances:

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department
of Labor, Dallas, Texas for Petitioner;
Richard Atkinson, Midwest Minerals, Inc., Pittsburgh, Kansas,
for Respondent.

Before:

Judge Stewart

This is a proce~ding filed by the Secretary of Labor, Mine Safety and
Health Administration (MSHA), under section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U. S.C. § 820(a) (hereinafter the Act), 1/ to
assess civil penalties against Midwest Minerals, Inc., (hereinafter Midwest).
A hearing was held at Miami, Oklahoma, on November 3, 1980. Petitioner called
one witness. Respondent called two witnesses. At the outset of the hearing,
the parties entered into the following stipulations on the record:
'];./

Sections llO(i) of the Act provides:
''(i) The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged,
wehther the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties under this Act,
the Secretary may rely upon a summary review of the information available to
him and shall not be required to make findings of fact concerning the above
factors."

251

The parties stipulate and agree that the number of man
hours for the company, Midwest Minerals, is 141,401. The manhours for the particular mine in question were 9,029. We have
stipulated and agree that these figures represent a smallsized mine. There is no history of violations for the
particular mine in question for the 24 months preceding the
citation. The proposed penalty would not have any effect on
the operator's ability to continue in business.
The decision rendered orally from the bench at the hearing is reduced
to writing below as required by the Rules of Procedure of the Federal Mine
Safety and Health Review Commission, 30 C.F.R. § 2700.65.
The stipulations being that the man hours for the
company are 141,101, and the man hours for the particular
mine are 9,029 and that these figures represent a smallsized mine, I so find that the size of the operator is
small.
There being no history of prior violations, I find that
the history of Respondent
good.
In view of the Respondent's concession that the proposed
penalty would have no effect on the operator's ability to
continue in business, I therefore find that the penalty in
this case will have no effect on the operator's ability to
continue in business.
Citation No. 167323 was issued on August 7, 1979, by MSHA
inspector Smith. The condition or practice noted on this
citation states, "The stacker tail pulley has no guard. Two
employees work near the area daily." The citation cited a
violation of 30 CFR 56.14-1, which reads as follows: Mandatory. Gears, sprockets, chains, drive, head, tail and take-up
pulleys, flywheels, couplings, shafts, sawblades, fan inlets
and similar exposed moving machine parts which may be contacted by persons and which may cause injury to persons shafl
be guarded."
The evidence has shown that the equipment in question is
a tail pulley; one of the specific types of equipment that is
required to have a guard by the mandatory standard. The evidence has also established that the tail pulley may be contacted by persons and that the contact may cause an injury to
persons. Respondent has introduced five photographs, marked
Exhibits 1 through 5, showing in general the condition of a
piece of equipment. The photographs were taken approximately
one year
ter the citation •• Exhibits 1 through 3 show that
the drive pulley is guarded but that there is no guard at the
tail pulley. Inspector Smith has acknowled~ed that the drive

252

pulley guard was in place at the time of the inspections, but
he testified that there was no guard around the tail pulley.
Respondent's witness has testified that these photographs
shown in Exhibits 1, 2 and 3, were taken at a time when the
tail pulley guard on the inby side was tempoparily removed
for the purpose of taking the photographs. It was then
replaced on the tail pulley. Respondent's Exhibit No. 2
shows a guard in the nature of a piece of belt on the outby
or far side of the frame of the equipment as the equipment is
viewed from the direction shown in Exhibit 2. The inspector
has testified that this guard was not in place at the time he
issued the citation and there has been no other testimony
refuting this statement. Therefore, I find that the guards
were not in place on the tail pulley at the time of the
inspection as alleged by inspector Smith. The respondent has
asserted that many inspections had been made by inspectors by
the Bureau of Mines, by MESA and by MSHA and this condition
had never be cited previously. Inspector Smith has testified
that he is unable to venture a statement as to why no citations were previously issued. While this may be material to
the issue of negligence it is not controlling on the issue as
to whether or not there was a violation. It has been established that the tail pulley was not guarded on August the 7th,
1979, that the pulley could be accidentally contacted by
persons working in the area and that the conditions might
result in an injury. I therefore find that a violation of
30 CFR 56.14-1 has been· established.
The testimony has shown that the pinch point is at the
bottom of the pulley and that the bottom of the pulley is
about six inches above the buildup of material. The inspector has testified that a person working or walking in the
area within two or three feet of the belt itself could very
easily slip and fall into this pinch point. The Respondent's
argument that the area is guarded by location has been fully
considered. While there is some protection from the location, it is still evident that it is possible for a person to
accidentally be injured by the belt at its pinch point with
the pulley. The frequency and amount of shoveling that must
be done in this area has not been established by the testimony. Nevertheless, two persons work in this area and it is
possible for them to be injured by the unguarded pulley. I
will accept the statement in closing argument that belt
dressing is no longer applied and that belts are prevented
from slipping by a friction type material placed on the
pulley. Since it has not been established by the testimony
that belt dressing need be frequently applied, I will find
that it is improbable that a person would be seriously
injured or that death would result as ~ result of the
unguarded pulley.
'

The testimony of inspector Smith has established that
the absence of the guard on the tail pulley was open and
obvious. Respondent has acknowledged and the testimony has
established that the operator knew that there was no guard at
this point. The operator was of the opinion that the tail
pulley was adequately guarded by location and by components
of the equipment. It has established that the equipment has
run in this condition for many years and that it has not previously be cited for this violation. Although it has been
established that an injury could occur, I will give the operator credit for good faith in this respect for not placing a
guard around the equipment and find that any negligence on
the part of the operator is slight.
The Secretary stated for the record that the employer
exercised extreme good faith and had done everything in its
power to correct the violation for which it was cited. In
view of MSHA's concession that the operator exercised good
faith in abating the citation, I find that the operator did
exercise good faith in attempting to abate the violation
after notification of that violation.
In view of the foregoing findings of fact and conclusions
of law, I find that an appropriate assessment for this violation in consideration of the six statutory criteria is the
amount of $30.00.
ORDER
The bench decision assessing a penalty of $30 is affirmed. Respondent
is ordered to pay Petitioner the sum of $30 within 30 days of the date of .
this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 752U2
(Certified Mail)
Richard Atkinson, }lidwest Minerals" Inc., P.O. Box 412, 709 North
Locust, Pittsburgh, KS 66762 (Certified Mail)

254

FEDERAL MINE SAFETY AND HEALTH RE.VIEW COMMISSION
333W. CClLI l\X AVENUE
DENVER. COLORADO 80204

)
)
)
)
)
)
)
)
)
)
)

SECRETARY O°F'LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,

v.
KENNECOTT COPPER CORPORATION,
Respondent.

JAN 1 9 1981
CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-273-M
A/O NO. 29-00014-05001
Mine:

Kennecott Concentrator

~~~~~~~~~~~~~~~~~~~~

DECISION
APPEARANCES:
Richard L. Collier,
., Office of the Sol itor, United States
Department of Labor, 555 Griffin Square, Suite 501, Dallas, Texas

75202
for the Petitioner,
J. C. Robinson, Esq., Dickson, Young & Robinson, 212 North Arizona
Street, Silver City, New Mexico 88061
for the Respondent.
Carlson, Judge:
This proceeding, brought under Section 105 of the Federal Mine Safety
and Health Review Act of 1977, 30 U.S.C. § 801 et seq. (hereinafter the
"Act"), arose out of an inspection conducted by one of petitioner's
representatives on April 23, 1979 at respondent's mine near Hurley, New
Mexico. As a result of the inspection, one citation was issued charging
respondent with a violation of 30 C.F.R. 55.15-5 1 .
On July 29, 1980, counsel submitted stipulations of fact. These
stipulations are now approved and therefore, for the purposes of this
litigation, establish the following'as true: 30 C.F.R. 55.15-5 was in fact
violated; the worker committ
the violation was an employee of an
electrical sub-contractor (Gardner & Zemke) to Burns Construction, the
primary contractor; under the terms of the contract between respondent and
Burns, the latter functioned as an independent contractor, performing all
work, and furnishing and exercising exclusive control over the conduct of

1/30 C.F.R. 55.15-5 provides:
Mandatory. Safety belts and lines shall be worn when men work where there
is a danger of falling; a second person shall tend the lifeline when bins,
tanks, or other dangerous areas are entered.
The citation alleges that an employee of Gardner Zemke, an electrical subcontractor, was signaling another worker while standing on the outside edge
of a building, 50 feet above the ground; the ledge was not bounded by
handrails, and the employee was not wearing a safety line.

255

its own employees. The stipulations further establish the sole issue to be
decided in this case: Whether respondent, an owner-operator of a mine, may
be held responsible for violations committed on its premises by employees
within the exclusive control of an independent contractor.
The Federal Mine Safety and Health Review Commission answered this
question affirmatively in Secretary of Labor, Mine Safety and Health
Administration (MSHA), v. Old Ben Coal Company, 1 FMSHRC 1480 (October 29,
1979), explaining that
[w]hen a mine operator engages a contractor
to perform construction or services at a mine,
the duty to maintain compliance with the Act
regarding the contractor's activities can be
imposed on both the owner and the contractor as
operators. This reflects a congressional judgment that, insofar as contractor activities are
concerned, both the owner and the contractor are
able to assure compliance with the Act. Arguably,
one operator may be in a better position to prevent
the violation. However, as we read the statute, this
issue does not have to be decided since Congress
permitted the imposition of liability on both
operators regardless of who might be better able
to prevent the violation
Id. at 1483.
Several other decisions affirm the Commission's position that the Secretary
i~ authori~ed under the Act to proceed against either the contractor or the
ml.ne owner .
Although the Old Ben decision upheld the Secretary's policy of citing
the mine owners in--aTl cases involving independent contractor violations, it
did so on the ground that the policy promoted uniformity. and, to that
extent, fairness; the Commission indicated, however, that it would strike
down the policy if it became apparent that the policy was based on
administrative convenience. Responding to the Commission's admonition, the
Secretary promulgated new regulations establishing procedures for direct
enforcement against independent contractors. These regulations became
effective on July 31, 1980. On Augut 4, 1980, the Connnission established
2/In National Industrial Sand Association v. Marshall, 601 F2d 689 (3d Cir.
-1979), the Third Circuit Court of Appeals interpreted the legislative
history of the Act as indicating that
Congress was clearly concerned with the perm1ss1ve
scope of the Secretary's authority, not with the
mandatory imposition of statutory duties as
independent contrators. Id. at 703.
See also Secretary of Labor, Mine Safety and Health Administration (MSHA)
v. Republic Steel Corporation, (Docket No. IBMA 76-28, April 11, 1979);
Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Kaiser
Steel Corporation, (Docket No. DENV 77-13-P, May 17, 1979); Secretary of
Labor, Mine Safety and Health Administration (MSHA) v. Monterey Coal
Company, (Docket No. HOPE 78-469, November 13, 1979).

256

interim procedures to guide the disposition of cases pending before the
Commission at the time the new regulations became effective. Secretary of
Labor, Mine Safety and Health Administration (MSHA) v. Pittsburg and Midway
Coal M1ning Company, (Docket No. BARB 79-307-P, August 4, 1980). These
procedures formed the basis for an order issued in the present case on
September 16, 1980; directing the Secretary to inform this judge within 30
days whether he would continue to prosecute only the mine owner, or
prosecute the independent contractor, or both. By November 24, 1980, no
response had been received; an order to show cause was therefore issued. On
December 8, 1980, the Secretary notified this judge, by letter, that he
intended to proceed only against respondent. On December 29, 1980,
respondent filed a motion to dismiss the proceeding on the ground that the
Secretary's unduly delayed response indicated that the policy of uniformally
citi~g mine owners had been based on administrative convenience.
Respondent's motion to dismiss is denied. The term "administrative
convenience" as used in the Old Ben decision refers to the pursuit of broad
policy objectives rather than to the conduct of an individual attorney in
attending to the details of a particular case. The motion might have been
more pursuasive had it been filed before the order to show cause was issued
and promptly answered.
The merits of the case are controlled by the Old Ben deciston. The
Pittsburg and Midway decision appears to signal a shift in the Commission's
position; however, until the Commission clearly establishes a new position,
the Old Ben decision must be followed.
That decision, while approving an "interim policy" of c1t1ng mine
owners for independent contractor violations, expressed concern that the
policy not serve as a pretext for administrative convenience; it states
specifically that continuation of the "interim policy" provides evidence
that it is based upon "improper considerations of admiminstrative
convenience". For this reason, I would adopt the approach taken by Judge
Boltz in Secretary of Labor, Mine Safety and Health Administration (MSHA) v.
Phillips Uranium Corporation, Docket No. CENT 80-208 (October, 1980). The
proposed penalty of $345.00 will therefore be reduced significantly.
ORDER
Accordingly, respondent is ordered to pay a civil penalty of $19.00
within 30 days of this decision.

J

n A. Carlson
ministrative Law Judge

Distribution:
Richard L. Collier, Esq., Office of the Solicitor, United States Department
of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 75202
J. C. Robinson, Esq., Dickson, Young, and Robinson, 212 North Arizona
Street, Silver City, New Mexico 88061

258

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

22041

JAN 2 1 1981

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

Civil Penalty Proceedings
Docket No. LAKE 80-393-M
A/O No. 20-01569-05006-R

Petitioner

v.
Docket No. LAKE 80-394-M
A/O No. 20-01569-05007-R

EDWARD KRAEMER & SONS, INC.,
Respondent

Sibley Quarry & Mill
DECISION APPROVING SETTLEMENT
AND

ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

Allen H. Bean, Esq., Office of the Solicitor, U.S. Department
of Labor, Detroit, Michigan, for Petitioner;
Willis P. Jones, Jr., Esq., and James A. Climer, Esq., Jones,
Schell & Schaefer, Toledo, Ohio, for Respondent.

Before:

Judge Cook

Proposals for penalties were filed pursuant to section llO(a) of the
Federal ~tine Safety and Health Act of 1977 (Act) in the above-captioned proceedings. Answers were filed and prehearing orders were issued. Subsequent
thereto, the parties filed a joint motion requesting approval of a settlement
and for dismissal of the proceedings.
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.
The proposed settlement is identified as follows:
A.

Docket No. LAKE 80-393-M

Citation No.

Date

Section of Act

Assessment

Settlement

298343

10/16/79

103(a)

$200

$100

259

B.

Docket No. LAKE 80-394-M

Citation No.

Date

Section of Act

Assessment

Settlement

298201

3/26/80

103(a)

$200

$100

The motion states, in part, as follows:
The parties submit that the penalty reductions shown
above are warranted and consistent with the criteria described
in Section 110 (i) of the Act because of the arguments presented in the letter dated October 20, 1980 from Willis P.
Jones, Jr., attorney for respondent, a copy of which is
attached hereto and made a part hereof. The issue of MSHA's
right to conduct inspections of respondent's Sibley Quarry
under the Act was resolved in Marshall -vs- Edward Kraemer
& Sons, Inc., (ED, Mich) Civil Action No. 80-70604, by the
entry of a Stipulation and Order, copies of which are
attached hereto and made a part hereof. The parties herein
state that this Motion does not modify or affect any agreements set forth in the Stipulation and Order entered in Civil
Action No. 80-70604, United States District Court, Eastern
District of Michigan, Southern Division.
The referenced letter dated October 20, 1980, states, in part, as
follows:
As part of the continuing efforts on behalf of both parties to
amicably settle the Proposal for Civil Penalty in the abovecaptioned cases, I submit to you the following reasons why I
believe that the Assessments of $200.00 for each citation
should be reduced to $100.00 per citation for a total of
$200.00. So that our position is clear, I would point [out]
to you that any admissions and/or representations, if any,
which are made in this letter are made in connection with
settlement negotiations and as such are not to be considered
as admissible evidence under the Federal Rules of Evidence.
1.

On October 16, 1979 when Respondent allegedly
denied Petitioner's representative the right
of entry to Respondent's Sibley Quarry and Mill
for purposes of conducting an inspection under
the Act, Respondent's representatives who
allegedly denied entry were acting upon the
advice of legal counsel. Counsel's advice in
this regard was to the effect that attempts by
MSHA inspectors to conduct inspections on
Respondent's property without a search warrant
was a violation of Respondent's rights and protections against warrantless searches embodied

260

in the Fourth Amendment to the Federal Constitution. The advice of Respondent's counsel was
based upon the case of Marshall -vs- Barlows,
INC., 98 S. Ct. 1816 (1978) wherein the Supreme
Court found that warrantless inspection [sic]
by OSHA violated a business operator's Fourth
Amendment rights. Even though the Barlow's case
involved OSHA, Respondent submits that because
of the similarities in the purposes of OSHA and
MSHA, the Barlow's decision throws the Constitutionality of warrantless search provisions of
MSHA into considerable doubt. Additionally, as
of October 5, 1979, the case of Nolichuckey Sand
Company, Inc. -vs- Marshall, was under advisement before the Sixth Circuit Court of Appeals.
Nolichuckey involved the question of whether or
not the. warrantless search provisions of MSHA
were unconstitutional under the Fourth Amendment. As of October 10, 1979, Respondent had
no way of knowing that Nolichuckey had been
decided adversely to the operator on October 5,
1979. Last, District Courts of Wisconsin and
New Mexico had held that the warrantless search
provisions of MSHA were unconstitutional under
the Fourth Amendment.
For these reasons, Counsel felt as of October 10, 1979, that
the issue of the Constitutionality of MSHA's warrantless
search provisions was open to question. For these reasons,
counsel for Respondent submits that Respondent's representatives were making a good-faith assertain [sic] of Respondent's
rights when they requested a search warrant of MSHA inspectors on October 10, 1979. Under the Penalty Assessment provisions of 30 CFR Section 100.03 [sic] Respondent submits that
it is entitled to a reduction of the proposed penalty due to
the Respondent's lack of history of previous violations,
Respondnet's [sic] lack of negligence, the small likelihood of
Respondent's violation resulting in injury to miners and the
fact that Respondent's request for a search warrant was in
good faith.
2.

On or about March 26, 1980, Petitioner alleged
in (Citation No. 298201], that Respondent violated the (Act] by refusing to allow Respondent's
employees to wear noise and dust monitoring
devices. As of March 26, 1980, Respondent was
once again acting on advice of counsel.
Counsel's advice to Respondent was based upon
the case of Plum Creek Lumber Company -vsHut ton, 608 F2d 1283 (Ninth Circuit 1979.) This

261

case involved the right of OSHA inspectors to
hang and/or attach noise and dust monitoring
devices.to employees of a business being
inspected. The Court found that OSHA provided no
authority for the hanging of such noise and dust
monitors. Again, Counsel for Respondent submits
that even though OSHA and MSHA are different
[Acts], their similarities of purpose and the
fact that MSHA has no provisions explicitly
requiring operators to allow the hanging of monitoring devices on their employees makes it
questionable whether or not MSHA inspectors have
the right to hang such monitoring devices. On
this basis, Counsel for Respondent submits that
Respondent was once again making a good-faith
ascertain [sic] of its rights under the Constitution when it denied MSHA inspectors the right
to hang dust and noise monitoring devices on its
employees on March 26, 1980.
Further, Respondent submits that the attachment
of the noise and dust monitoring devices constitutes an unnecessary safety hazard to its
employees. It is a universally accepted rule of
industrial safety that persons working around or
near machinery with exposed moving parts should
aot wear jewelry, chains, loose keys or other
loose apparel. This principle is set forth by the
National Safety Council in Accident Prevention
Manual for Industrial Operations, Seventh Addition [sic] (1974) at pgs. 699, 828, 830, and 1004.
Respondent submits that accurate noise and dust
measurements can be taken by means other than
attaching noise and dust monitoring equipment to
employees working around moving machinery. See:
Accident Prevention Manual for Industrial Operations, Supra, at 1247-1248.
Because of Respondent's good-faith ascertain [sic]
of its rights and its lack of intent to hinder~
MSHA in sections [sic], Respondent's Counsel once
again submits that under the guidelines of 30 CFR
Section 100.03 [sic], Respondent is entitled to
few or no penalty points for history of previous
violations, negligence, gravity of violation and
good-faith.
For the foregoing reasons Edward Kraemer & Sons, Inc. feels
that it is entitled to a reduction of at least $100.00 for
each citation involved in these proceedings.

262

The referenced proceeding in the United States District Court for the
Eastern District of Michigan, Southern Division, was disposed of by an order
of dismissal issued by United States District Judge John Feikens on
September 10, 1980. The proceeding was dismissed pursuant to the following
stipulation:
It is hereby stipulated and agreed by the parties as
follows:
1. The defendant will not deny authorized representatives of the Secretary of Labor entry.to, upon and/or
through the Sibley Quarry in Trenton, Michigan, for the
purpose of carrying out inspection or investigation under
the provisions of the Federal Mine Safety and Health Act
of 1977, nor interfere with, hinder or delay said authorized representatives in the conduct of such investigation,
all subject to the qualifications stated in paragraph [sic]
2 and 3 hereof.
-2(a) During the course of any such inspection or investigation, if the defendant claims it believes that the wearing
of audio dosimeters, personal dust sampling devices or similar
devices by any of its employees would represent a risk of
injury to said employee, the plaintiff will.not require that
said monitoring device(s) be worn by the employee.
2(b) Instead, the monitoring device will be placed at a
location mutually agreed upon in accordance with the following
criteria:
(1)

the device will be placed so that it is
located as closely as possible to simulate
the location of the orfice(s) [sic] of the
employee's head during the monitoring
period which represents the most significant access point for the contaminant or
other hazard being tested for.

(2)

The device will not be placed anywhere
where it would constitute a potential
safety hazard or would impede the normal
movement of workers and/or equipment in
and about the area.

(3)

The Defendant will not challenge the results
of monitoring obtained in accordance with
the criteria stated in paragraph 2(b) hereof
on the ground that the results do not demonstrate the employee's actual exposure because
of the location of the monitoring device(s)

263

providing agreement as to location as
described in 2(b) hereinabove.
2(c) If the parties cannot agree on a mutually agreeable
location for the placement of the monitoring device(s) the
Plaintiff may pursue either of the following options:
(1)

The Plaintiff shall have the right to place
the monitoring device(s) at a location that
plaintiff believes satisifies the criteria
of paragraphs 2(b)(l) and (2) and the parties agree that the issue of the compliance
of the placement of the sampling device(s)
with the criteria of paragraphs 2(b)(l) and
(2) shall be the subject for ~eview by the
Mine Safety and Health Review Commission (or
its Judge.

(2)

The plaintiff shall have the right to place
the monitoring device(s) on a Mine Safety
and Health inspector(s) who shall reasonably
emulate the movements of the employee(s) to
be monitored. Defendant will not challenge
the results of the monitoring so obtained on
the grounds stated in paragraph 2(b) above as
long as the inspector(s) wearing the monitoring device(s) reasonably emulate the movements
of the employee(s) to be monitored.

3. Defendant reserves the right to refuse to consent to
a warrantless inspection of the subject mine in the event a
final decision (a decision is not final until action by any
court having power of review has been precluded or concluded)
of the Sixth Circuit Court of Appeals or the U.S. Supreme
Court upholds the right of the operator of an open quarry to
insist that inspections provided for under the provisions of
the Federal Mine Safety and Health Act of 1977 be made only
pursuant to a duly authorized search -warrant.
4(a) The execution of this stipulation is without
prejudice to the right of either party hereto to litigate the
issues raised in the Second, Third and Fourth Defenses in
Defendant's Answer.in any other current or any subsequent
litigation, including litigations between the parties hereto.
However, it is not the intent of this paragraph to grant the
parties any additional procedural or substantive rights in
any such action.
4(b) The execution of this stipulation is without
prejudice to the right of either party to litigate in any

264

current or subsequent litigation, including litigation
between the parties, the issue of whether the plaintiff can
require that audio dosimeters or personal dust sampling
devices be worn by an employee during the course of an
inspection under the Act. The execution of this stipulation is not to be construed as an admission on this issue
in any such litigation by either party hereto.

S. Pursuant to the provisions of Rule 4l(a)(l)(ii} of
the Federal Rules of Civil Procedure, this action is hereby
dismissed, with each party to bear its own court costs.
The reasons given above by counsel for the parties for the proposed
settlement have been reviewed in conjunction with the information submitted
as to the six statutory criteria contained in section 110 of the Act. After
according this information due consideration, it has been found to support the
proposed settlement. It therefore 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 $200 assessed in these proceedings.

Law Judge
Distribution:
Allen H. Bean, Esq., Office of the Solicitor, U.S. Department of Labor,
231 w. Lafayette, 657 Federal Building, Detroit MI 48226 (Certified
Mail)
Willis P. Jones, Jr •. , Esq., and James A. Climer, Esq., Jones, Schell &
Schaefer, 510 United Savings Building, 240 Huron Street, Toledo, OH
43604 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

265

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

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

JAN 2 1 1981

22041

Civil Penalty Proceeding
Docket No. LAKE 80-385
A/O No. 33-02624-03106
Powhatan No. 7 Mine

QUARTO MINING COMPANY,
Respondent
DECISION
ORDER TO PAY
This case consists of a petition for the assessment of civil
penalties for two alleged violations of the Act. The Solicitor has
filed a motion to approve a settlement for one of the two citations.
Citation 1009643 was issued for an alleged violation of 30 CFR
75.316. On September 8, 1980 a hearing was held in Secretary of Labor
v. Nacco Mining Company, Quarto Hining Company and The North American
Coal Corporation, LAKE 80-251, et al. in which the same provision of
respondent's dust control plan at issue in this citation was litigated.
In those cases a decision dated September 22, 1980 held invalid this
provision of the dust control plan. The decision in LAKE 80-251 is
dispositive of this citation.
Citation 9938290 was issued for a violation of 30 CFR 70.lOO(b).
The parties have proposed a settlement of $150 for this violation.
After having reviewed this citation I approve the recommended settlement.
ORDER
Citation 1009643 is hereby VACATED and the petition to assess a
civil penalty is DISMISSED insofar as it concerns this citation.
The operator is ORDERED to pay $150 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
F. Benjamin Reik III, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Bldg., 1280 East 9th St., Cleveland,
OH 44199 (Certified Mail)
John T. Scott III, Esq., Crowell & Moring, 1100 Connecticut Ave., }1-W,
Washington, DC 20036 (Certified Mail)

266

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

JAN 2 7 1981

Civil Penalty Proceeding

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

Docket No. WEVA 79-112-P
A.C. No. 46-01459-03025 V

v.
Birch No. 2-A Mine
ISLAND CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Marshall S. Peace, Esq., for Respondent.

Before:

Judge William Fauver

This proceeding was brought by the Secretary of Labor under section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., for assessment of civil penalties for alleged violations of mandatory safety standards. The case was heard in Charleston, West Virginia.
Both parties were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT

1. At all pertinent times, Respondent, Island Creek Coal Company,
operated a coal mine known as the Birch No. 2-A Mine in Nicholas County,
West Virginia, which produced coal for sales in or substantially affecting
interstate commerce.
2. Respondent used a retreat mining method at the Birch No. 2-A Mine,
which involved driving a series of rooms, about 20 feet wide and 80 feet long,
into the coalbed. Pillars of coal would be left standing to support the roof
until the area was fully developed. Coal would then be removed from the supporting pillars in a pattern until the roof caved in, leaving a gob area.
About eight mining cycles, in four shifts, were required to drive through
six rooms into a new crosscut.

267

3. The mining sequence in the retreat method was roof bolting, cutting,
drilling, blasting, and loading. After the roof was bolted, the face would
be cut with a cutting machine before the coal was blasted. Undercutting and
overcutting involved making horizontal cuts along the bottom and top of the
face so that the coal would separate evenly from the face following the blast.
Undercutting and overcutting also relieved the coal seam from overburden
stresses. After cuts, the cutter would pull out and a drill would be brought
in to drill holes for the explosives.
4. Cutting was also performed to shear loose ribs and overhanging brows
that often accompanied retreat mining. An overhanging brow is a rib that is
not aligned at right angles with the roof and that extends over the travelway. A loose or cracked overhanging brow can create a serious hazard to
miners in the area. Removal is typically done by cutting underneath the
overhang and then shearing it vertically. Normally, before an overhang falls
there is ·a warning noise accoopanied by loose, falling material. About once
every shift, loose ribs and overhangs are cut down as part of the regular
mining cycle and it is often necessary to shear the same areas several times.
5. On August 24, 1978, Mr. McClung, a shuttle car operator, pointed out
an overhang on the corner of the No. 3 room to William Bradey, the cutting
machine operator, and Bradey sheared it off. Bradey had sheared this overhang
on more than one occasion before this.
6. Loose ribs and overhangs are prevalent in the Birch No. 2-A Mine.
Shuttle car operators customarily notify section foremen of loose overhangs
observed while traveling through an area of the mine. The shuttle car operators generally make 40 to 50 trips each shift; however, none had passed
through the 4-right off east main section on August 25, 1978.
7. On August 25, 1978, Eugene Cook, Respondent's section foreman in the
Birch No. 2-A Mine, arrived underground with his crew at the 4-right off east
main section between 8:20 and 8:30 a.m. The shift began at 8:00 a.m. Before
entering the mine, Cook reviewed the report of William Bayles, the fireboss
on the previous (third) shift. The report made no reference to overhanging
brows. Nor:nally, if a problem arises between shifts, the fireboss would note
the problem and alert the foreman on the follovtlng shift. No mining is performed on the third shift.
8. On August 25, Cook preshifted the belt haulageway and face areas while
the crew remained in the dinner hole. Cook's preshift examination did not
cover all areas between the last open crosscut and the next crosscut outby.
He traveled through the last two open crosscuts and observed loose overhangs
in two locations (designated as Ill and 112 on Respondent's Exhibit No. 1).
One of the locations was the same area reported by the shuttle car operator
on August 24, 1978. Cook returned to the dinner hole at about 8:40 a.m. and
told William Bradey to shear off the loose overhangs. One of them was dangered off because of a "scrap cut," which referred to an area that has not
been cleared adequately. The rest of the crew were told to move equipment,

268

scale tops and move cables and curtains so that the ribs and overhangs could
be sheared. They would not be working in the vicinity of the cutting machine
while performing these tasks.
9. On August 25, 1978, federal mine inspector Henry Baker arrived at
Respondent's Birch No. 2-A Mine at 7:15 a.m. After checking mine records on
the surface, Inspector Baker traveled to the 4-right off east main section
and at about 9:30 a.m. began checking the faces of rooms 1 through 6 and the
travelways and roadways by the docking point. No coal was being mined and
no equipment was being loaded. Inspector Baker observed a cutting machine,
a loading machine, two shuttle cars, a coal drill and a roof-bolting machine;
however, he did not inspect any of the equipment.
10. Inspector Baker observed ntnnerous overhanging brows and unsupported
ribs in the Nos. 1 through 5 rooms, in the last open crosscut and in the first
two crosscuts outby the last open crosscut. These conditions were observed in
each room about every 10 feet on both sides of the room. Some of the overhangs ranged from 2 to 4 feet and over 1 dozen of the overhangs were loose
and cracked.
11. By visual observation, Inspector Baker determined that the overhanging brows were loose and cracked. He estimated the size of the overhangs
instead of using a measuring stick because the coal seam was about 11 feet
and he was unable to reach and prod the roof.

12. The inspector determined that the condition was dangerous and that
Respondent's section foreman was aware or should have been aware of the condition. About 10 men worked in the area and all of them would be exposed to
the hazard of falling roof or ribs during normal mining cycles.
13. On August 25, 1978, Inspector Baker issued Order of Withdrawal
No. 53415 to Respondent, which reads in part:
Loose, unsupported ribs, coal, and unsupported overhanging coal brows were present at ntnnerous locations along
the shuttle car roadways in the 4-right off east main section,
section 031-0, beginning in the second line of open crosscuts
outby the faces and
inby in all areas in the number
1 to nur.i.ber 5 rooms.
The cited condition was abated by 5:00 p.m., by taking down the overhanging
brows.
14. Between July 11, 1978, and August 25, 1978, Respondent received
12 citations charging violations of 30 C.F.R. § 75.202.
DISCUSSION WITH FURTHER FINDINGS
Based on the order of withdrawal issued on August 25, 1978, the Secretary
has charged Respondent with a violation of 30 C.F.R. § 75.202, which provides:

269

The operator, in accordance with the approved plan, shall
provide at or near each working face and at such other locations in the coal mines as the Secretary may prescribe an
ample supply of suitable materials of proper size with which
to secure the roof of all working places in a safe manner.
Safety posts, jacks, or other approved devices shall be used
to protect the worY....men when roof material is being taken down,
crossbars are being installed, and in such other circumstances
as may be appropriate. Loose roof and overhanging or loose
faces and ribs shall be taken down or supported. Except in the
case of recovery work, supports knocked out shall be replaced
promptly.
The basic issue as to the charge is whether Respondent failed to take down
or support loose, overhanging ribs and brows.
The Secretary argues that the overhanging brows and loose ribs observed
by Inspector Baker on August 25, 1978, created a risk of serious injury or
death to miners working in the area. The Secretary contends that there were
over 1 dozen loose, overhanging brows that were cracked and broken away from
the main ribs, that Respondent had not supported the overhanging brows and
ribs, and that Respondent was not in the process of shearing the overhangs
when the inspector arrived. The Secretary argues that the cited condition
was knotvn or should have been known by the operator because the overhangs
resulted from mining coal over at least four producing shifts.
Respondent argues that the cited standard requires that loose overhangs
and ribs be taken down and that during the preshift examination the mine foreman observed only two loose overhangs that needed to be taken down. Respondent contends that at the time of the inspection, production had not begun
and the cutter was shearing the loose overhangs that had been observed by the
foreman during the preshift examination. Cook testified that when he preshifted the cited area he observed only two serious overhangs that required
action and that he told Bradey, the cutter, to shear them off. Bradey testified that when the inspector arrived, he had already begun to cut one of the
overhangs (designated as #2 on Respondent's Exhibit No. 1) and the other one
(designated as #1 on Respondent's Exhibit No. 1) had been dangered off.
Respondent also argues that the inspector failed to identify specifically
which of the cited overhangs were loose and that the inspector's conclusion
that the overhangs were cracked and loose was based only on visual observation.
Respondent contends that the inspector was unable to determine the size of the
overhangs or whether the overhanging brows were dangerous without being close
enough to measure the overhangs and conduct sound and vibration tests.
I credit the inspector's testimony in estimating the mnnber and size, and
in appraising the danger, of the overhangs he observed on August 25, 1978. I
find that Inspector Baker's examination of the cited area was more extensive
than the foreman's preshift examination and that the inspector's opinions,
which were based on visual observation, are reliable. I find that a visual

2:10

examination in an 11-foot coal seam is a proper method of inspection and that
it was not necessary that he measure and prod the overhangs to estimate their
size or to determine whether they were cracked and loose.
At the time of the inspection on August 25, 1978, the shift had not yet
begun to produce coal and the cutter had already begun to shear an overhang
in one of the locations observed by the foreman during the preshift examination. The other overhang observed by the foreman was in a dangered off area
and, therefore, posed no immediate danger. I credit the testimony of the
cutter, William Bradey, that he was shearing an overhang when the inspector
arrived. However, the foreman had not issued instructions to cut down the
other overhangs (which ~ere later discovered by the inspector). The evidence
indicates that production would have begun without first cutting such overhangs down. I find that this condition constituted a violation of 30 C.F.R.
§ 75.202 and a serious hazard to the miners.
Respondent was negligent in
failing to correct or danger off this condition before the federal inspection on August 25.
CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdiction over the parties and subject
matter of the above proceeding.
2. Respondent violated 30 C.F.R. § 75.202 by failing to remove or
support loose ribs and overhanging brows as alleged in Order of Withdrawal
No. 53415.
3. Based upon the statutory criteria for assessing a civil penalty for
a violation of a mandatory safety standard, Respondent is assessed a penalty
of $2,500 for this violation.
ORDER
WHEREFORE IT IS ORDERED that Island Creek Coal Company shall pay the
Secretary of Labor the above-assessed civil penalty, in the amount of $2,500,
within 30 days from the date of this decision.

WILLIAM FAUVER, JUDGE
Distribution:
Ja~es

H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market Street, Room 14480, Gateway Building, Philadelphia, PA
19104 (Certified Mail)

Marshall S. Peace, Esq., Counsel for Island Creek Coal Company, P.O.
Box 11430, Lexington, KY 40502 (Certified Mail)

271

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

.JAN 2 8 1981

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

Civil Penalty Proceeding
Docket No. SE 80-66-M
A.O. No. 09-00017-05005 H

Petitioner

v.
Blue Ribbon Quarry
DOVE CREEK GRANITE COMPANY, INC.,
Respondent
DECISION.
Appearances:

Michael Hagan, Attorney, Office of the Solicitor, U.S.
Department of Labor, Atlanta, Georgia, for the petitioner;
John Strong, Elberton, Georgia, for the respondent.

Before:

Judge Koutras
Statement of the Proceeding

· This proceeding concerns a proposal for assessment of a civil penalty
filed by the petitioner against the r~spondent 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 one alleged violation of mandatory safety standard
30 C.F.R. § 56.15-5.
Respondent filed a timely answer and notice of contest and a hearing was
convened on November 25, 1980, in Athens, Georgia. The parties waived the
filing of written proposed findings and conclusions, but were afforded an
opportunity to present oral argwnents in support of their respective positions. A bench decision was rendered which is herein reduced to writing as
required by Commission Rule 65, 29 C.F.R. § 2700.65.
Issues
The principal issues presented in this proceeding are: (1) whether
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalty filed in
this proceeding; and, if so, (2) the appropriate civil penalty that should
be assessed against the respondent for the alleged violation based upon the
criteria set forth in section llO(i) of the Act. Additional issues raised
by the parties are identified and disposed of in the course of this decision.

2'72

In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 et seq.
2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1 et~·
Discussion

Citation No. 099053, August 22, 1979, 30 C.F.R. § 56.15-5 states as follows: "Clarence Thornton and Julius Langston were drilling a lift hole using
a 12 inch piece of channel iron for a working platform. The platform was just
above water which was about 30 feet deep. Neither man was wearing safety line
or life jacket."
Stipulation
Respondent is subject to the jur~sdiction of the Federal Mine Safety and
Health Review Commission (Tr. 7).
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Tom Hubbard confirmed that he issued the citation and
withdrawal order after inspecting the mine and discovering two men who were
in danger of falling off a 12-inch wide channel iron. He noticed that the
channel iron had a 2-inch lip running along either side of its approximate
10-foot length (Tr. 13). One side of the channel iron was on the quarry wall
and the other end was resting on a pile of submerged stone or quarry bottom.
The section of the iron on which the men were standing was suspended over
water which vibrated when the men moved on the iron. According to the workmen, the water was 30 feet deep. Mr. Hubbard himself took a 15-foot pole
and unsuccessfully attempted to touch bottom with it. Upon questioning the
two men, Mr. Hubbard determined that neither could swim (Tr. 14-15).
Mr. Hubbard testified that the men were using a jackhammer drill which
released oil during use. This oil, he concluded, would make the walking
surface of the channel iron slippery. The 2-inch lip on the iron was also
thought to provide a tripping hazard. Since the men could possibly drown if
they fell, Mr. Hubbard felt that the men should have been tied down or have
worn safety belts while performing the operation (Tr. 15-17).

273

Inspector Hubbard testified that Mr. Thornton, the foreman, was aware
that the men were working without safety belts or lines, although a reasonable peson should have known of the danger. After Mr. Hubbard issued the
107(a) withdrawal order, the operator withdrew the men and sent them to town
to purchase the proper equipment (Tr. 17-18).
In response to bench questions, Mr. Hubbard testified that on the day
following the issuance of the withdrawal order, there was full compliance
with the safety requirements. He reiterated the fact that the reason he
issued the original citation and withdrawal order was because of the danger
of falling or drowning, and not because the operator used a channel iron as
a work platform. Mr. Hubbard stated that it was not unusual to allow water
to fill up part of a nonworking quarry, because it could always be pumped
out at a later date. At the time of the citation, he found this to be a
working quarry (Tr. 18-22).
Testimony and Evidence Adduced by the Respondent
Respondent attempted to introduce two sworn affidavits, but these were
rejected because it was riot shown that the affiants were unavailable (Exhs.
R-1, R-2). Respondent conceded the fact of a violation, but then referred to
the company's financial statements as evidence of its unstable financial condition (Exh. R-3). The defense rested its case on the fact that the company
was no longer in business (Exh. R-4, Tr. 25-27).
Findings and Conclusions
Fact of Violation
Respondent is charged with a violation of 30 C.F.R. § 56.15-5 which
requires men to wear safety belts and lines when there is a danger of falling.
Respondent concedes, and I find, that allowing men to work on a channel iron
where there was a danger of falling, without providing safety belts and lines,
violated this regulation.
Good Faith Compliance
The record supports a finding of good faith compliance with the withdrawal
order. The inspector testified that the men immediately ceased working and
were sent to buy ropes. The next time he visited the site, the workers were
securely tied down (Tr. 17-18).
Gravity
The evidence establishes that this was a serious violation. Since the
water was at least 15 feet deep, and neither man could swim, there was a good
possibility of drowning.

Negligence
I find that this violation was a result of ordinary negligence. A reasonable man would have recognized the danger and would have required the
workers to wear safety belts and lines.
History of Prior Violations
Respondent's record indicates that there was no significant history of
prior violations warranting an increase in the assessment (Exh. P-2).
Size of Business and Effect of Civil Penalty on Respondent's Ability to Remain
in Business
The evidence indicates that the quarry was run by a small operator (Exh.
P-2), and petitioner agreed that this was the case (Tr. 8). Both parties
agree, and I find, that the respondent is no longer in business. Further, I
am persuaded by respondent's financial records that the mine operated at a
loss in 1979, and petitioner does not dispute that this was in fact the case
(Tr. 9).

Penalty Assessment
On the basis of the foregoing findings and conclusions made in this proceeding, a civil penalty of $100 is assessed for Citation No. 099053, issued
on August 22, 1979, for a violation of 30 C.F.R. § 56.15-5. I conclude that
since the mine operator is no longer in business, a $500 penalty will serve
no useful deterrent purpose, but due to the gravity of the violation, I
believe that an assessment of $100 is .appropriate.

ORDER
Respondent is ORDERED to pay the civil penalty assessed by me in the
amount of $100 within thirty (30) days of the date of this decision. Upon
receipt of payment by MSHA, this matter is dismissed.

'J _)

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Admini~·trative Law Judge

Distribution:
Michael Hagan, Attorney, Office of the Solicitor, U.S. Department of
Labor, 1371 Peachtree Street, NE., Atlanta, GA 30309 (Certified Mail)
John Strong, Office Manager, Dove Creek Granite Company, Inc., Box 593,
Elberton, GA 30635 (Certified Mail)

275

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

JAN 2 8 1981

MABEN ENERGY CORPORATION,

Contest of Citation
Contestant

v.

Docket No. WEVA 80-437-R

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Citation No. 653368
May 19, 1980
Respondent

Maben No. 3 Mine

DECISION
Appearances:

James M. Brown, Esq., File, Payne, Scherer & Brown,
Beckley, West Virginia, for Contestant;
Stephen P. Kramer, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia for
Respondent.

Before:

Judge Melick

Hearings were conducted in this .case on September 17, 1980, in Beckley
West Virginia fol~owing which I issued a bench decision. That decision,
which appears below with some modification, is affirmed at this time.
This case is before me under Section lOS(d) of the Federal Mine Safety
and Health Act of 1977. Maben Energy Corporation (Maben) is contesting
Citation No. 653368, a citation issued under the provisions of section
104(d)(l) 1/ on May 19, 1980, by MSHA Inspector James Ferguson for a violation of the standard at 30 C.F.R. § 75.316, i.e. a violation of,Maben's
methane and dust control plan. Maben does not question that the cited viola~
tion did occur and contests only the special finding of "unwarrantable
failure" made in connection therewith.

1./

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

276

The standard cited facially requires only that the operator file and
have in effect a methane and dust control plan approved by the Secretary.
The standard has been construed however as requiring also that the operator
comply with its approved plan. Zeigler Coal Company, 4 IBMA 30 (1975), aff'd,
536 F.2d 398 (D.C. Cir. 1976). It is specifically charged in this case that
Item No. 7 on page 2 of the operator's plan was violated because there was no
perceptible movement of air in the cross cut left off of the No. 4 entry of
7 Left 013 section. That part of the plan requires that if a blowing system
of ventilation is used, as the evidence shows was used in this case, the minimum amount of air at the end of the line curtain must be 3,000 cubic feet
per minute. It has.been stipulated that at the time the citation was issued
on May 19, that that minimum amount was not met.
The issue before me is whether this violation was the result of the
unwarrantable failure of the operator to comply with the law. A violation is
a result of "unwarrantable failure" if the violative condition is one which
the operator knew or should have known existed or which the operator failed
to correct through indifference or lack of reasonable care. Zeigler Coal
Company, 7 IBMA 280 (1977).
According to the testimony of Mr. Fred Ferguson, superintendent of the
Maben No. 3 mi-ne, this mine and in part:lcular this section that we are talking about today had a history of deficient ventilation and, in fact, on
occasion -- and I got the impression, not infrequently -- was less than the
required 3,000 cubic feet of air per minute. I conclude from that history
that management was on notice that special precautions were required that
might not otherwise be called for to keep the working areas of that section
properly ventilated. Superintendent Ferguson indeed conceded that because of
this known history he had given section foreman Campbell the special duty to
keep him currently informed as to what areas could safely be worked.
Now, it is essentially undisputed that as part of his on-shift inspection section foreman Campbell went to the cited No. 4 entry between 7:30 and
7:55 of the morning in question and at that time thought that he felt a
"perceptible" movement of air on his face and hands. In spite of the fact
that Campbell was aware of the recurring problem of air deficiency ~n this
section and that'there was only a "perceptible" movement of air that morning
he made no effort to determine whether that working place in fact had
sufficient ventilation.
Inspector Ferguson's testimony is undisputed that when he arrived at the
No. 4 entry where men were installing roof bolts there was dust in suspension
and absolutely no movement of air. Since the vanes o~ his anemometer would
not move for lack of air velocity he released smoke from a chemical smoke
tube. The smoke did not move in any direction. According to mine superintendent Ferguson this test was made between 7:30 and 8:00 that morning. Since
section foreman Campbell made his determination of only "perceptible" air in
the same entry during that same time (between 7:30 and 7:55 that morning) it
is reasonable to infer that there was indeed an obviously deficie.nt flow of
air when Campbell made his inspection. Campbell therefore knew or should

27?

have known of that deficiency. If indeed he detected only perceptible air
movement it was incumbent on him to verify the adequacy of that air before
allowing his men to work there. He was apparently also failing to comply
with the company policy of verifying the air flow in this section. His failure to do so and to correct that condition through indifference or lack of
reasonable care shows that the violation was the result of "unwarrantable
failure" to comply with the law. The actions and negligence of foreman
Campbell are of course imputed to the operator.
I also conclude that the violation was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety
and health hazard under section 104(d)(l) of the Act. The absence of ventilation at a working face could result in the buildup of explosive methane gas
and coal dust and cause a respirable dust health ~zard to the miners. The
citation herein is therefore affirmed, and the con'~.est dismis. sed.

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Ga~Y·I Melick \

Ad\i\·~di,strativ\ ~~aw Judge
Distribution:

S~

~

James M. Brown, Esq., File, Payne,
. er & Bro
Law Building, Beckley, West Virginia 25801 (Cer

130 Main Street
fied Mail)

Stephen P. Kramer, Esq., U.S. De~artment of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)

278
•

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 8 t9S1
RANGER FUEL CORPORATION,

Contest of Order
Contestant

v.

Docket No. WEVA 79-218-R

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

Order No. 0660570
June 8, 1979
Respondent

Beckley No. 2 Mine

SUMMARY DECISION
This case involves one citation charging a violation of section 103(£)
of the Federal Mine Safety and Health Act of 1977 (the Act). Section 103(£)
reads in part:
Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the provisions of subsection [103](a) * * *· [O]ne such representative of miners who is an employee of the operator shall be
entitled to suffer no loss of pay during the period of such
participation under the provisions of this subsection.
In Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833 (November 30, 1979),
No. 79-2536 (D.C. Cir., December 21, 1979), the Federal Mine
and Health Review Commission interpreted the section 103(f) so-called
walkaround pay provision to apply to section 103(a) "regular" inspections only.
In reaching this decision, the Commission relied on its reasoning in Helen
Mining Company, 1 FMSHRC 1796 (November 21, 1979), appeal pending No. 79-2537
(D.C. Cir. December 21, 1979). In Helen Mining Company, the Commission held
that a miner was not entitled under section 103(f) to walkaround pay for spot
inspections pursuant to section 103(i) of the Act and noted that compensation
was due only for a miner's accompaniment of a Federal inspector during a section 103(a) "regular" inspection. The Commission concluded therein that
"regular" inspections were those described in the third sentence of section
103(a) of the Act, i.e., the four required annual inspections of underground
mines and the two required annual inspections of surface mines.

~..=...:;..;;;...;;;;.pending

279

There is no disagreement between the parties in this case that the
inspection giving rise to the citation at bar was a spot inspection and not
a "regular" inspection within the framework of the Kentland-Elkhorn and
Helen Mining decisions. There is, therefore, no issue before me as to any
material fact. Under the circumstances, I find as a matter of law that the
Ranger Fuel Corporation did not violate section 103(f) of the Act as charged
in the citation at bar.
Accordingly, Citation No. 660570 is VACATED and the civil pe
ceeding, Docket No. WEVA 79-218-R, is DISM SSED.

lty pro-

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ick
,
Adm:[Jn·strative; La

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Distribution:

I

Paul Thomson, Esq., Ranger Fuel Corpbr tion,

Le~:~)

McGinn, Esq., Office of the

Judge

'

J

n, VA 24266 (Certified

icitor, U,S. Department of Labor,

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

280

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JAN 2 8 1981

Civil Penalty Proceeding

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

Docket No. DENV 79-389-PM
A.C. No. 05-00354-05003

v.
Climax Mine
CLIMAX MOLYBDENUM COMPANY,
Respondent
DECISION
Appearances:

James Cato, Esq., Assistant Solicitor, Mine Safety and
Health Administration, U.S. Department of Labor,
Kansas City, Missouri, for Petitioner;
Rosemary Collier and Chalres w. Newcom, Esqs., Climax
Molybdenum Company, Golden, Colorado, for Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine Safety and
Health Act of 1977. A hearing on the merits was held in Denver, Colorado, on
September 9, 1980, at which both parties were represented by counsel. After
considering evidence submitted by both parties and proposed findings of fact
and conclusions of law proffered by counsel during closing argument, I entered
an opinion on the record. 1/ My bench decision containing findings, conclusions and rationale appear-below as it appears in the record, aside from minor
corrections.
This proceeding arises upon the filing of a petition for
an assessment of civil penalty by the Secretary of Labor
against the Respondent seeking a civil penalty for the violations alleged in Citation No. 331748 issued July 28, 1978,
and alleging a violation of 30 C.F.R. § 57.9-3. The authority
for this proceeding is vested by section llO(a) of 'the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a).
Originally, there were four violations involved in this
docket, two of which were amicably settled by the parties

1/

Tr. 217-231.

281

previously, and one of which (No. 331729) was vacated upon
motion of counsel for Petitioner and the Secretary of Labor
at the commencement of the hearing. One citation remains.
The citation in question, No. 331748, was issued by inspector
James L. Atwood, a duly authorized representative of Petitioner, who described the allegedly violative condition or
practice as follows: "The 28 motor pulling the muck train
in 614 X cut did not have an adequate braking system; four
of the five braking cars used were inoperative. When the
operator set the air brakes, the brakes failed to close."
30 C.F.R. § 57.9-3 is a mandatory safety standard set
forth under the general "loading, hauling, and dumping" standard relating to surface and underground mines. It provides
that "powered mobile equipment should be provided with adequate brakes." The general issue to be decided, and indeed
the sole factual issue, is whether or not the braking system
on the muck train in question was adequate.
I find initially that the safety standard in question is
not so vague or ambiguous as to be unenforceable. In the
abstract, it appears that it is possible to clearly establish
by probative evidence whether or not a braking system is adequate or not even though the standard does not provide for
specific minimum stopping distances for various types of
equipment or trains. I would stipulate, however, that the
regulation is not a model to be emulated in terms of detail
or clarity and that it does invite further elucidation. On
the other hand, not all standards are subject to perfect
description, and whether or not brakes are sufficient or not
is properly one for a subjective .evaluation based upon the
evidence submitted to the finder of fact.
The citation was issued during the first regular inspection of the Climax Mine of Respondent under the 1977 Act.
Inspector Atwood observed at the 614 crosscut a muck train
consisting of 21 cars which was being pulled by engine No. 28.
The citation was issued at 9:20 a.m. (on July 28, 1978), and
set forth a termination date of August 2, 1978, at 1600 hours.
Thus, an abatement time in excess of 5 days was established.
Inspector Atwood examined the train again on August 3, 1978,
at which time he extended the compliance time to 1:45 p.m.
on August 3, 1978. On August 4, 1978, the inspector terminated the citation noting that new brake shoes were installed
and the brakes were holding on the three braker cars on the
No. 28 motor train.
During his inspection on July 28, Inspector Atwood visually observed the brakes on the locomotive (sometimes referred
to as the "motor") and the five braker cars. He asked the motorman to set the brakes while he went under each car and checked

282

the brakes. He noted that on four of the braker cars, the brakes
did not function on some, and that on some of the brakes the linkage had been bent where the shoes had not contacted the wheel.
Thus, there was one good braker car, in the sense that it had an
operable braking system on all four of its wheels, out of the five
total braker cars which were placed immediately behind the motor
on the 21-car train. The inspector indicated that, as to the four
cars which were inadequate, at least two wheels of the four on
each car had brakes which did not function properly. He indicated that one of the braker cars, and possibly two, did not
have operable brakes on all four wheels. The inspector took
hold of some of the brake shoes and shook them indicating the
degree of looseness. He expressed the opinion that the brakes
were not capable of stopping the muck train because there was
not sufficient tension on the brake band or linkage.
The inspector also testified that routinely during the
course of the daily operation of the muck trains the brakes
would have been checked. One of those occasions is when the
operator picks up the train; another occasion is when the
train is reloaded. And other evidence in the record, I note,
indicates that the trains are checked f requently--one of the
points being at a derailing point near the crusher.
The inspector indicated with respect to the seriousness
of the violation that the train would have traveled downgrade
to the crusher from the point where he observed it approximately 1 mile from the crusher; that the downgrade ran approximately a quarter of a mile to the crusher; and that the train,
had it been unable to properly stop, could have derailed or
struck persons walking along the track or maintenance personnel
repairing the rails. His opinion was that such an accident
could result in a fatality. He also indicated that there are
personnel who work in the drifts and that there is traffic on
the rails.
There are two production levels in the Climax Mine, the
storke and the 600 level. When the
violation was
observed by the inspector, the train was on the 600 level and,
according to the inspector, "appeared to be empty." The
inspector indicated that the downgrade which commenced approximately a quarter of a mile before the crusher was a 6-percent
downgrade. This was an estimate by the inspector who first
testified that he did not know the
of the downgrade.
The record indicates that the braking system on the train
consisted of the following: On the motor were air brakes
backe·d up by a "dead man," which automatically sets the brakes
should the locomotive operator faint or otherwise become
incapable of operating the air brakes. In addition, on the

283

motor is a dynamic brake system which operates off the electrical system and which can be used to slow up the train. The
use of braker cars had been in effect at the Climax Mine for
approximately 15 years. The purpose of braker cars is to
assist in the stopping of the trains.
Various interpretations with respect to the purpose
of the braker cars was provided by the Government inspector,
who testified on behalf of the Petitioner, and by the three
witnesses presented by Respondent. Based upon all of their
testimony, I find that the braker cars,.at least in theory,
have the following purposes: (1) to help the actual stopping
or slowing down of the trains of which they are a part; (2) to
help decrease the wear on the brakes of the motor behind which
they are placed in the train; and (3) to provide an additional
braking system should the braking system on the motor braker
become inoperable. I would footnote that the third of Respondent 1 s witnesses, Mine Master Mechanic Harry Anderson, indicated that the main reason the use of braker cars is being
continued is to minimize wear on the locomotive itself. He
also indicated that had the Respondent's safety manual been
updated the use of braking cars might have been changed or
discontinued. This latter testimony, which I find to be
gratuitous, is rejected, the hard fact being that for 15 years
the use of braker cars has continued. Considering the requirement for them in the Respondent's safety manual, and considering the (obvious) purposes of the braker cars, I conclude
that they do constitute a braking contribution on any
individual train which must be considered within the totality
of the braking power to determine whether or not there is an
adequate braking system.
Respondent presented convincing evidence that the greatest grade on the 600 level was one of 0.45 percent. That is
less than one-half of 1 percent and to be contrasted with the
6-percent grade estimated by Inspector Atwood. A I-percent
grade would indicate a 1-foot gradient every 100 feet. I
infer that t~at is not a particularly steep grade. The
inspector defined what adequate brakes should be as "enough
to do the job," which in the context of the facts of this
~ase would be enough to stop a loaded muck train on a downgrade in the 600 level of the mine. I note that it was at
this point in his testimony that he indicated that he did not
know the percent of the downgrade and that it was later on
that he ventured the 6-percent estimate. The inspector indicated, in explanation as to why he gave the Respondent 5 days to
abate the alleged violation, that he was aware that the company
knew of the bad brakes and was aware that it would have to
operate (the train) at a slower speed. The inspector also

284

said that a motorman would not use the dynamic system of braking in the locomotive alone to stop a train because it would
take too long. He also pointed out that if the brake shoes
did not work properly on the air brake system the same
deficiency would apply to the deadman system. The inspector
estimated the maximum speed which a loaded muck train might
travel to be 15 miles per hour. Respondent's evidence indicated that the maximum speed would be 4 to 5 miles per hour.
Inspector Edward Machesky, a rebuttal witness for the Petitioner, estimated the maximum speed would be 8 to 10 miles
per hour. Inspector Atwood, as I previously noted, believed
the train to be empty when he observed it and indicated that
it would take 2 or 3 times as much distance to stop a loaded
train as an empty train. Based upon the evidence submitted
by Respondent, which I accept in the following particulars,
I find that the inspector's opinion that the brakes were
inadequate was based in part upon the following erroneous
assumptions:
(1) That the downgrade in proximity to the crusher was.
6 percent. The Respondent's evidence in this respect I find
to be the more persuasive and I find that the maximum grade
in the 600 production area was .45 of 1 percent.
(2)
The inspector also mistakenly believed the train
was empty at the time he observed it, which I gather the Petitioner has accepted as erroneous. In any event, I find on the
evidence of record that the train was fully loaded at the time.
The inspector's opinion can also be subject to a final
criticism in the sense that if he considered the alleged violation to be of a high degree of gravity, why would a 5-day
abatement have been granted? On the other hand, he did partially explain the granting of such a period based upon his
understanding that the·Respondent would, presumably, automatically slow down the speed of the trains. However, he also
testified that he obtained no promise or commitment from any
of Respondent's personnel to take certain remedial action
immediately. There was no assurance that the train would not
proceed fully loaded down the incline to the crusher. Although
it is impossible to be certain from the evidence of record,
the probability is that the train, after it was observed by
the inspector, would have proceeded to the crusher - which
Respondent's witnesses indicated was approximately a mile and
a quarter from the place of observation by the inspector.
There is testimony in the record with respect to the
effect that fully operational braking systems on the braker
cars would have on the distance it woul~ take to stop the

28:5

train. One estimate by Respondent's witness was that it would
stop the train under certain circumstances in some 30 feet
less distance than if the braking system was to be done only
by the locomotive itself. One of Respondent's witnesses, its
general mine foreman in July 1978 who is now retired, Lee
Walke~, did indicate what I construe to be an admission that
not all the brakes were working at the time the citation was
issued. He testified that the brakes in the braker car
directly behind the locomotive were working properly but that
the brakes in the next car were not working, and that the
brakes in the remaining cars (that is the Nos. 3, 4 and 5
cars) were only partially working. He went on to indicate-which I find to be somewhat in contradiction to his earlier
testimony--that once the train got underway the brake shoes
would fit tight against the wheels. That is, while the.train
is static or not moving the brake shoes may be loose, but
once the train becomes dynamic or moving this would have
the effect of causing the brake shoes to set more closely
against the wheels. This same explanation was advanced in
more technical detail by Mr. Anderson, Respondent's mine
master mechanic. However, I felt that Mr. Walker's testimony
was revealing in the sense that his testimony changed from the
initial statement that the brakes on various of the braker
cars were not working to the explanation that the shoes would
get tight once the train began moving. I should state that I
thought that the latter position was not one of explanation
but more one of induced change as he was testifying. This
finding and analysis on my part is somewhat critical to my
final .determination. The reason it is critical is that the
hard evidence and the persuasive evidence and the evidence
upon which this dispute must be ultimately resolved rests
upon the opinions of the various persons who have testified
here today. There have been considerable inconsistencies and
contradictions in the record as well as lengthy testamentary
discourse which in the long run led nowhere. The opinions
of various individuals when weighed and analyzed become the
determinant of whether or not the powered mobile equipment in
question was provided with adequate brakes at the time the
inspector issued the citation. I therefore conclude that
despite the three errors, which I enumerated, in the inspector's testimony his opinion should be credited. It is somewhat bolstered, and I think actually very significantly
bolstered, by the testimony of Mr. Walker when the same is
finally analyzed. This acceptance of the inspector's opinion
in turn is founded upon a finding that four of the five braker
cars had, to some extent, faulty braking systems. I infer
from the facts that if such braker cars are on a muck train
to begin with and have been used there for many, many years
without the Respondent's taking them off, they certainly must
have some purpose. The obvious purpose of any braking system

286

is, in any context, to stop movement of a vehicle. This is
the primary safety factor on any moving vehicle. Since I
find that one of those cars had an entirely inoperable braking
system and that the remaining three were possessed of brakes
which on at least two wheels were not operable, I conclude
that the train was not provided with adequate brakes. In this
context, I note that safety standards are not designed to
cover ideal situations. There must be overkill so that when
accidents do happen and when other systems do fail there is
a backup or an alternative to the occurrence of a hazard
which the standard is designed to avoid. I have no doubt
that at least on a level run the train in question could be
stopped by the locomotive or motor-braking system. On the
other hand, the evidence of record clearly establishes that
the braking systems of the braker cars would shorten the
distance in which that train could be stopped should the need
arise. And the braker cars also provide, I find, a possible
alternative braking source should the braking system on the
motor fail as the result of any cause other than an impairment
of its air system which also seats the braking systems on the
braker cars.
I thus conclude that a violation of 30 C.F.R. § 57.9-3
was committed as described by the inspector in the citation.
The statutory penalty assessment factors which must be considered have to a great extent been resolved by stipulations
and agreement of the counsel for the parties. I find that
this is a large mine operation on the basis that it has a
total of 3,000 employees, some 1,600 to 1,700 of which work
underground, and that such was the case in 1978. I also find
that the Respondent produces some 48,000 tons of molybdenum
ore every day, 30,000 tons of which are produced at the underground mine. The Respondent, at the time of the commission
of the violation, had a history of 107 violations, two of
which involved the same safety standard as that involved here
today. I find that the Respondent proceeded in good faith to
achieve rapid compliance with the safety standard after being
advised of the violation by the inspector. I find that the
Respondent has the economic ability to pay any penalty which
I might assess in this case without jeopardizing its ability
to continue in business. * * *
There remains to be considered the factors of negligence
and gravity. I am unable to find any evidence of gross negligence on the part of Respondent or any specific act of negligence or failure to discharge any specific responsibility that
it has under the Act or otherwise which can be attributed to
it by any action or nonfeasance of its supervisory personnel.
There was no Government rule in effect at the time of the violation, as I understand it, which required certain checks of
those practices.

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...

The question arises whether or not ordinary negligence
should be inferred from the commission of a safety violation
by an employer. There is considerable state law to the effect
that ordinary negligence can be and should be inf erred from the
mere commission of a safety violation. I believe that in this
case the finding of ordinary negligence would be academic as
I do not believe the penalty should be increased or otherwise
changed one way or the other on the basis of negligence.
There is just an absence of criteria in the record which would
govern or guide any judgment along that line. So I make a
finding in this case of no negligence.
With respect to the seriousness of the violation, I previously set forth the inspector's testimony in that respect.
There is no question but that a train accident, because of the
multi-ton weight and the impetus and movement of the same, is
fraught with the possible occurrence of serious bodily injury
to anyone involved in a derailITent or to anyone being hit by
a runaway train. On the other hand, the inspector's yiew of
the seriousness of the violation is dramatically tempered by
his failure to issue an imminent danger order. I therefore
find that this was only a moderately serious violation under
all the circumstances.
Summing up then, the factors of size of the operator would
call for an increase in the size of any penalty. On the other
hand, the moderate history of violations which the Government
concedes is not extraordinary for an operator of this size, is
in mitigation of such an increase. Additionally, the good
faith abatement of the violation by the operator and the fact
that the operator was not negligent in this case militate for
a lowering of the penalty. * * * Weighing those factors, a
penalty of $100 is assessed. 2/ I would note that had I found
negligence and had I found a higher degree of seriousness, a
penalty in the $3,000 range would have been entertained.
ORDER
The Respondent, for Citation No. 331748, is ORDERED to pay a penalty
of $100 to the Secretary of Labor within 30 days from the issuance of this
decision.
Citation No. 331729 is VACATED.

2/

Petitioner's initial proposed assessment was $66.00.

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Distribution:
James Cato, Esq., Office of the Solicitor, U. S. Department of
Labor, 911 Walnut St., Rm. 2106, Kansas City, MO 64106 (Certified
Mail)
Rosemary M. Collier and Charles W. Newcom, Esqs., Sherman & Howard,
2900 First of Denver Plaza, 633 17th St., Denver, CO 80202
(Certified Mail)
Richard W. Manning and W. Michael Hackett, Esqs., Climax Molybdenum
Co., Amax, Inc., 13949 W. Colfax Ave., Golden, CO 80401 (Certified
Mail)

289
*II S GOVEN!OO!NT PRINTING OFFICE< 1981 341~638/4151