INDEX JULY 1980
Commission Decisions
7-01-80
7-02-80
7-09-80
7-21-80

Peabody Coal Company
BARB 76-117
New Jersey Pulverizing Company
YORK 79-94-M
Island Creek Coal Company
BARB 77-27
LAKE 79-118 et al
North American Coal Co. & Quarto & Nacco
-Mining Companies
7-25-80 Island Creek Coal Co. & Langley & Morgan Corp. VA 79-81-D
7-29-80 Martin Marietta Corporation
SE 80-24-M

Pg. 1683
Pg. 1686
Pg. 1689
Pg. 1694
Pg. 1698
Pg. 1702

Administrative Law Judge Decisions
6-19-80
6-27-80

J

Johnny Howard v. Martin-Marietta Corp.
P Burroughs & Son Inc.

SE 80-24-DM
LAKE 80-223-M

Pg. 1706
Pg. 1707

7-01-80
7-02-80
7-02-80
7-03-80
7-03-80
7-03-80
7-03-80
7-08-80
7-08-80
7-08-80
7-11-80
7-11-80
7-11-80
7-14-80
7-16-80
7-16-80
7-23-80
7-23-80
7-23-80
7-24-80
7-25-80
7-25-80
7-25-80
7-25-80
7-25-80
7-25-80
7-25-80
7-25-80
7-28-80
7-29-80
7-30-80
7-31-80
7-31-80
7-31-80

C F & I Steel Corp.
Day Mines Irie.
Borsberry Construction Company
Solar Fuel Company
UMWA
NY State Dept. of Transportation
Old Ben Coal Company
The Anaconda ~ompany
Clinchf ield Coal Company
Missouri Gravel Company
Peabody Coal Company
Consolidation Coal Company
Valley Camp Coal Co.
Bishop Coal Company
U S Steel Corp.
Martin=Marietta Aggregates
Pennslyvania Glass Sand Corp.
Peggy-0 Coal Co.
Olga Coal Company
Amherst Coal Company
Peabody Coal Company
Climax Molybdenum
Jim Walter Resources Inc.
Rock Valley Cement Block & Tile
Climax Molybdenum Company
Ozark-Mahoning Company
Old Ben Coal Company
Climax Molybdenum Company
Coal Resources Inc.
Duval Corp
Island Creek Coal Co.
Itmann Coal Company
North American Sand & Gravel Co.
Consolidation Coal Company

WEST 80-85-D
DENV 79-424-PM
CENT 79-174-M
PENN 79-142
WEVA 79-199-R
YORK 79-21-M
VINC 75-313
WEST 79-128-M
NORT 78-395-P
LAKE 80-83-M
LAKE 80-77
PENN 79-105
WEVA 79-116-D
WEVA 80-41
PITT 79-186-P
CENT 79-171-M
CENT 79-354-M
VA
79-41 et al
WEVA 80-124 et al
WEVA 79-222
KENT 80-155
WEST 79-192-M
BARB 77-266-P
DENV 79-587-PM
WEST 79-303-M
LAKE 79-280-M
LAKE 79-238 et al
WEST:.79-301-M
WEVA 80-323
WEST 79-196-M
KENT 79-216-R
WEVA 80-9-R et al
LAKE 79-51-M
WEVA 79-129-R

Pg. 1710
Pg. 1720
Pg. 1724
Pg. 1732
Pg. 1739
Pg. 1749
Pg. 1783
Pg. 1785
Pg. 1786
Pg. 1792
Pg. 1795
Pg. 1809
Pg. 1819
Pg. 1823
Pg. 1831
Pg. 1834
Pg. 1842
Pg. 1852
Pg. 1862
Pg. 1872
Pg. 1880
Pg. 1884
Pg. 1890
Pg. 1906
Pg. 1918
Pg. 1924
Pg. 1929
Pg. 1967
Pg. 1973
Pg. 1976
Pg. 1983
Pg. 1986
Pg. 2017
Pg. 2021

Commission Decisions
July 1980

JULY
The following cases were Directed for Review during the month of July:
Secretary of Labor on behalf of Johnny Chacon v. Phelps Dodge Corp.,
WEST 79-349-DM (Judge Lasher, May 30, 1980)
Secretary of Labor, MSHA v. Phillips Uranium Corporation, CENT 79-281-M,
etc. (Judge Carlson, June 5, 1980)
Secretary of Labor, MSHA v. C & K Coal Company, PENN 79-60 (Judge Merlin,
June 12, 1980)
Secretary of Labor, MSHA v. Consolidation Coal Company, WEVA 80-333-R
(Judge Broderick, June 12, 1980)
Secretary of Labor, MSHA v. Ideal Basic Industries, Cement Div., SE 79-16-M
(Judge Koutras, June 9, 1980)
Secretary of Labor, MSHA v. The Anaconda Company, WEST 79-128~M, WEST 79-130-M
and WEST 79-137-M (Judge Morris, June 13, 1980)
Secretary of Labor, MSHA v. The Hanna Mining Company, LAKE 79-103-M, etc.
(Judge Broderick, June 17, 1980)
Johnny Howard v. Martin Marietta Corporation, SE 80-24-DM (Judge Broderick,
June 19, 1980)
Secretary of Labor, MSHA v. King Knob Coal Company, WEVA 79-360 (Judge
Melick, June 27, 1980)
Secretary of Labor, MSHA v. J.P. Burroughs & Son, Inc., LAKE 80-223-M
(Judge Broderick, June 27, 1980)
Secretary of Labor, MSHA v. Kanawha Coal Company, WEVA 80-40, etc. (Judge
Bernstein, June 24, 1980)
Secretary of Labor, MSHA v. Kanawha Coal Company and Beckley Coal Mining
Company, WEVA 80-150, 80-154 (Judge Kennedy, June-27, 1980)
Review was Denied in the following cases during the month of July:
Secretary of Labor, MSHA v. Hastie Mining Company, LAKE 79-191-M
(Judge Broderick, May 29, 1980)
Vess Hall v. Little T Coal Company, SE 79-119-D (Judge Broderick, May 27, 1980)
Virginia Pocahontas Company, & Island Creek Coal Company v. MSHA & UMWA,
VA 79-61-R, etc. (Judge Koutras, June 3, 1980)
Secretary of Labor, MSHA v. Asarco, Incorporated, WEST 79-274-M (Judge
Morris, June 3, 1980)

Secretary of Labor, MSHA v. North American Coal Corp., Quarto Mining Co.,
and NACCO Mining Gompanyr-LAKE 79-118, etc. (Judge Moore, February 12, 1980)
Secretary of Labor on behalf of Gene Hand v. Zeigler Coal Co., LAKE 80-292-D,
(Judge Broderick, June 17, 1980 order - Petition for Interlocutory Review)
Secretary of Labor on behalf of Larry Long v. Island Creek Coal Co., &
Langley & Morgan Corporation, VA 79-81-D (Judge Fauver, June 19, 1980)
Secretary of Labor, MSHA v. Clark Brothers Contractors, DENV 79-475-PM
(Judge Broderick, June 19, 1980)
Review was Vacated in the following case during the month of July:
Secretary of Labor, MSHA v. Hilo Coast Processing Company, DENV ~9-50-M,
etc.

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

July 1, 1980
Docket No. BARB 76-117

PEABODY COAL COMPANY

v.

IBMA 77-A

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

DECISION
This is a penalty proceeding arising under sectionl09(a) of the
Federal Coal Mine Health and Safety Act of 1969. 30 U.S.C. §801 et seq.
(1976 and Supp. I 1977). An appeal was pending before the Interior
Department Board of Mine Operations Appeals on March 8, 1978. Accordingly, it is before the Commission for decision. 30 U.S.C. §961 (1978).
Peabody is appealing a decision of an administrative law judge that
found the company in violation qf 30 CFR §77.404(a) and assessed a
penalty of $3,500 for that violation.
The case arose out of a fatality ~hat occurred at Peabody Coal
Company's Ken Strip Mine in Kentucky on May 8, 1974. Ellis O. Crick, a
welder in the truck. repair shop at the mine, was killed when an overhead
chain hoist fell and struck him in the head.

An examination of the hoist after the accident showed that a flange
on the heist's assembly .h~d been bent outward. This bend caused the
rollers to lose contact with the overhead beam and fall. No one at the
Ken Mine was aware of the damage to the flange prior ~o the accident.
The judge held that the evidence established that Peabody failed to
maintain equipment in safe operating condition as required by 30 CFR
§77.404(a). That regulation provides: "Mobile and stationary machinery
and equipment shall be maintained in safe operating ~ondition and
machinery or equipment in unsafe condition shall be removed from service
immediately". He pointed out that the Board of Mine Operation Appeals,
in a case involving a similiarly worded regulation, 1J held that proof
of an unsafe condition in equipment establishes a prima facie case of
failure to properly maintain that equipment. He held that an operator
must conduct sufficient inspections of poten.tially dangerous types of
equipment such as the hoist in order to satisfy the maintenance requirement in the regulation and that Peabody had failed to fulfill that
requirement because no particular inspections of the hoist were being
conducted.

1../

Eastern Associated Coal Corporation, 5 IBMA 185, 200(1975).
1683

80-7-1

On appeal, Peabody admits that the evidence established that an unsafe condition-exis-ted-at--its mine at the time of the accident. Peabody
argues, however, that the judge erred in concluding that the evidence
established a violation of the regulation. Peabody contends that there
are two permissible interpretations of the regulation: (1) that the
regulation is violated only if the operator knows that equipment is
unsafe and fails to remove it from service once the unsafe condition is
known, or (2) that the regulation is violated if an operator does not
know of the unsafe condition and fails to exerc-ise reasonable care to
discover the existence of the unsafe condition.
We reject these arguments. In Peabody Coal Company, 1 FMSHRC 1494
(1979), the Commission held that 30 CFR §77.404{a) imposes two duties on
an operator -- a duty to maintain machinery and equipment in safe operating
condition, and a duty to remove unsaf~ equipment from service. The
Commission said that an operatqr violates the portion of the regulation
requiring operators to maintain equipment in "safe operating condition"
whenever the existence of an uns~fe condition is proved. We rejected
the argument that a violation·of the requirement to maintain equipment
in safe operating condition is not established unlessthe ·evidence shows
that an operator knew or should have known of the existence of the
unsafe condition. We said:
The regulation requires that operators maintain
machinery and equipment in safe operating condition and impos~s liability on an operator
regardless of it§ knowledge of unsafe conditions.
What the opera tor knew. or;. should have known
is relevant, if at all, .in determining the
appropriate penalty, not in determining
whether a violation of the.regulation
occurred. [l FMSHRC at 1495.]
Accordingly, because it is undisputed that the hoist was in an unsafe
condition, a violation of the reg~iation has been established.
We turn now to the issue of the appropriateness of the penalty
assessed by the judge. In arguing for a reduction of the penalty,
Peabody does not dispute the findings of the judge relating to the
penalty criteria set forth in section 109 of the 1969 Act. Peabody
maintains, however, that those findings do not support the assessment of
a $3,500 penalty.
The Commission has declined to disturb penalty amounts assessed by
a judge where the record reflects his full consideration of the six
statutory criteria. See, e.g. Peabody Coal Co., 1 FMSHRC 1494(1979);
Pittsburgh Coal Co., 1 FMSHRC 1468(1979); U.S. Steel Corp., 1 FMSHRC
1306(1979); Kaiser Steel Corp., 1 FMSHRC 984(1979); Shamrock Coal Co.,
1 FMSHRC 799(1979); Ruston Mining Co., 1 FMSHRC 794(1979). Peabody does
not object to the judge's failure to fully consider the six statutory
factors. It argues only that the findings of the judge on those factors
warrant a lower penalty.
Our independent review convinces us that the
judge did not err in assessing the penalty.

1684

-

The judge's decision is affirmed.

Richard v •. Backley, Commissioner

'\~Cl'M.w~~~ \.atQ
c/

Marian Pearlman Nease, Commissioner

1685

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

July 2, 1980

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

v.

Docket No. YORK 79-94-M

NEW JERSEY PULVERIZING COMPANY
DECISION
On May 16, 1980, the administrative law judge issued a "Decision
and Order" requiring the operator to pay penalt{es "in settlement of"
six alleged violations. In a footnote to his decision, the judge
declared that his disposition was merely "proposed" and stated that he
would reconsider and afford both parties an opportunity to be heard if
they so requested. The Secretary filed a petition for discretionary
review, claiming that the judge had assessed penalties without giving
the Secretary the opportunity to be heard because, under Commission
precedent, the judge could not recortsider his decision. The Secretary
in effect argues that the penalties assessed by the judge are too low.
We granted the Secretary's petition. We now reverse.
On the same day that the judge's decision was issued, we issued a
decision in another case disapproving the judge's method of disposition.
Peabody Coal Co., 2 FMSHRC 1035, 1 BNA MSHC 2369, 1980 CCH OSHD ,[24,468
(1980). That decision is controlling here.]:../ In view of our decision

1/
In Peabody, the judge's decision did not contain a footnote
characterizing the disposition as merely proposed. We have therefore
considered whether Peabody is distinguishable. We can find no
principled distinction. It is quite evident that the judge intended his
decision here to serve as his final disposition of the proceedings and
yet to permit him to reconsider. This is precisely what our Peabody
decision held was inconsistent with the Commission's rules and precedents.

80-7-2
1686

in Peabody, and particularly in view of our decision here, we expect
that it will--not.-be neeessary to continue to remind the judge that he is
to decide cases in accordance with the Commission's rules and precedents.
We also observe that the judge did not give the parties a reasonable
opportunity to propose a settlement of the case. '!:._/ Finally, in view
of New Jersey Pulverizing's letter of June 27, l!J80, which asks fhat
this case be disposed of "without the expense to us or the Government
of a hearing", we order the; judge to afford the parties· an opportunity
to propose a settlement before any hearing is scheduled or pre-hearing
order is issued.
Accordingly, the judge's decision is vacated. The case is remanded
to him for further proceedings consistent with this decision.

'!:._/ The Secretary's proposal for a penalty was received on October 29,
1979. When the operator initially failed to file a timely answer, an
order to show cause was issued to the operator on April 22, 1980. New
Jersey Pulverizing's response to the order was received on May 6, 1980.
Ten days later, without further proceedings by the judge or the parties,
the judge issued his decision.

1687

Distribution
Debra L. Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Martin E. Tanzer, Esq.
New Jersey Pulverizing Company
390 North Broadway
Jericho, New York 11753
Administrative Law Judge Jos~ph B. Kennedy
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike - Building 2
Falls Church, Virginia 22041

1688

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

July 9, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. BARB 76-297-P

ISLAND CREEK COAL COMPANY

IBMA No. 77-27
DECISION

This is a civil penalty proceeding arising under the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. §801 et seq. (1976 &
Supp. I 1977). The administrative law judge held that regulations
adopted by the Department of Interior to implement the civil penalty
program did not bind the government to an assessment settlement agreement
where such agreement was entered into because of a mistaken assumption
of fact on the part of the department's assessment personnel. The judge
noted that the mistake and the repudiation of the agreement were called
to the mine operator's attention before payment of the penalty. He
concluded that the operator was not prejudiced and ordered the case to
proceed to a full evidentiary hearing. The judge made de novo findings
and assessed Island Creek $5,000.
Appeal was timely filed. 1/ We
affirm the judge's decision.
This case was initiated as the result of a fatal accident that
occurred on January 10, 1975, at an underground coal mine operated by
Island Creek in Hopkins County, Kentucky. A mechanic employed at the
mine was fatally injured when the boom of a loading machine fell on him.
Following an accident investigation, a notice of violation was issued by
an inspector of the Mining Enforcement and Safety Administration (MESA)
as authorized by §104(b) of the 1969 Coal Act, which charged Island
Creek with a violation of 30 C.F.R. §75.1726(b) (1974). That subsection
provides:
No work shall be performed under machinery or
equipment that has been raised until such machinery
or equipment has been securely blocked in position.

1/

On March 8, 1978, this case was pending on appeal before the
Secretary of Interior's Board of Mine Operations Appeals (Board)
under the Coal Act. This appeal is before the Commission for
disposition under section 301 of the Federal Mine Safety and
Health Amendments Act of 1977, 30 U.S.C. §801 ~t ~·

1689

80-7-5

The notice cited the following practice:
Work was being performed under the conveyor
boom in a raised position, on the loading machine
in the four south panel entries No. 1 unit and was
not blocked into position.
The inspecto~ failed to indicate on the face of the notice that it
was being issued as the result of a fatality investigation. The regulations 2/ adopted by the Secretary to implement the civil penalty program
required MESA's Office of Assessments to prepare and serve on the mine
operator an initial order of assessment. Due to the omission on the
face of the notice referred to above, the subject violation was assessed
as a non-fatal infraction. By applying the point system provided in
30 C.F.R. §100.3(b) (1975), a penalty of $102 was as.sessed. The penalty
was further reduced to $78 as the result of a settlement conference
between a MESA assessment official and Island Creek. During the conference
a formal assessment agreement was executed, in compliance with §100.6,
by the representatives of the parties.
Two weeks later, the Office of Assessments discovered that the
instant notice of violation involved a fatality and determined that the
assessment agreement was based on a mistaken assumption of fact on its
part. On August 14, 1975, before Island Creek had tendered payment,
MESA wrote Island Creek a letter indicating the mistake and repudiated
the agreement. Island Creek replied to MESA's letter stating that MESA
was bound by the assessment agreement and could not unilaterally void
the agreed penalty of $78. Island Creek then tendered payment of the $78,
which amount was returned by MESA. NESA reassessed the violation on the
theory that it contributed to the fatality and assessed a new penalty of
$5,000. Island Creek refused to pay the second assessment and requested
a hearing.
Before the judge, Island Creek moved that the proceeding be dismissed
with prejudice on the basis that it had previously made payment of an
amount agreed upon by MESA in full satisfaction of civil penalty liability
for the subject notice of violation. The judge denied the motion and the
case proceeded to hearing.
In a written decision issued on March 24, 1977, th~ judge held that
a violation as charged occurred, but found that there was no negligence
on the part of the mine operator. After a lengthy discussion of the
criteria provided in §109(a)(l) for the assessment of a penalty, the
judge determined that a penalty of $5,000 was appropriate.
Island Creek appealed to the Board contending that the judge erred
in denying its motion to dismiss the proceeding. It further argued that
imposition by the judge of a penalty of $5,000 was excessive and an
abuse of discretion in light of the judge's finding that the mine
operator was not in any way negligent or at fault with regard to the
fatal accident.
2/

30 C.F.R. Part 100 (1975).

1690

With regard to the first issue, Island Creek argues that the record
is devoid of any_ ev_!4_e~e_J7hich would support a finding that MESA
entered into the agreement because of a good faith mistake. It further
urges that MESA did not have a right to unilaterally void the assessment
agreement and that the judge's decision nullifies the purpose of a key
provision of the assessment regulations in §100~6(d).
Under that provision, failure of the mine operator to tender payment of the agreed
amount within 10 days resulted in the agreed amount being entered as the
final order of the Secretary. It is Island Creek's position that once
the assessment agreement for $78 was signed, MESA was precluded from
further administrat-ive action. We reject these arguments.
The record does not include testimony from the assessment official
who signed the agreement regarding his state of mind during the negotiations. It does, however, provide substantial evidence that during
the conference this official was operating under a mistake of fact.
Documents of record indicate that, in agreeing to a reduced assessment
of $78, he was. unaware that the violation was considered by MESA to be
the cause of the accident, in. this case a fatality. The judge found,
and we agree, that the regulations under Part 100 were designed to
provide a mechanism by which an operator could settle-·penalties for
alleged.violations without the need for a hearing or a decision on the
merits, but that these regulatiohs were not intended to bind MESA to an
assessment agreement which was entered into on the basis of a good faith
mistake that became known to all parties prior to payment.
One of the six statutory criteria to be considered in assessing a
civil penalty is" ••• the gravity of the violation ••• " (Section 109(a)(l)).
In this case that criterion was obviously not considered by the MESA
assessment official in the context of the actual facts of this case. Nor
was the inspector who issued the citation present at this meeting. If
Island Creek was also unaware of all facts material is assessing the
civil penalty, the agreement of the parties was predicated upon a mutual
mistake of fact, a firmly established basis for relief and avoidance of
an agreement. 3/ Further, if the operator's representative was aware
of all such material facts underlying this citation, and also aware of
MESA's lack of such knowledge, he had an equitable obligation to so
inform the MESA assessment official, or take the risk tbat the agreement
herein could be timely avoided. In either case, the resulting document
could be and under these facts was properly repudiated.

1_/

See 54 Am. Jur. 2d Mistake, Accident, or Surprise, §4 et seq.
(1971). See also Peabody Coal Company, 7 IBMA 318, 325 (1977).

1691

Finally, we turn to the contentio_n that the $5,000 penalty assessed
by the judge was _excessive and an abuse of discretion. In his decision,
the judge fully considered all six statutory criteria, including the
lack of negligence on the part of the mine operator, in making the
assessment. Our independent review convinces us that the judge did not
err in assessing the penalty. !!.._/
Accordingly, the judge's decision is affirmed •

.!±_/

See Co-op Nining Co., 2 FMSHRC 784 (1980).

1692

Distribution
William K. Bodell, II, Esq.
Island Creek Coal Company
2355 Harrodsburg Road
P.O. Box 11430
Lexington, KY 40575
Thomas A. Mascolino, Esq.
Edward Fitch, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge William Fauver
FMSHRC
Skyline Center 2
5203 Leesburg Pike, 10th Floor
Falls Church, Va. 22041

1693

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

--

.-~

_ 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

July 21, 1980
Docket Nos. LAKE 79-118
LAKE 79-214
LAKE 79-263
LAKE 80-64

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.
THE NORTH AMERICAN COAL
CORPORATION

Docket Nos. LAKE 79-262
LAKE 80-61
Docket Nos. LAKE 79-266
LAKE 80-65
Docket Nos. YINC 79-124-P
LAKE 79-228
LAKE 79-265
LAKE 80-31
LAKE 80-32

QUARTO MINING COMPANY,

Docket Nos. LAKE 79-229
LAKE 80-95
LAKE 80-96
Docket No.

THE NACCO MINING COMPANY

LAKE 79-230

ORDER
The Secretary seeks discretionary review of a February 12, 1980
decision of the administrative law judge. In that decision, the judge
dismissed 17 civil penalty cases. The petitions in these cases alleged
26 violations of the respirable dust standard, 30 CFR §70.lOO(b), and 9
violations of various other standards. Each of the cases contained at
least one alleged violation of 30 CFR §70.lOO(b).
In his February 12,
1980 decision, the judge dismissed the 17 cases on the grounds 30 CFR
§70.lOO(b) was invalid and unenforceable. !/
On February22, 1980, the Secretary filed a motion requesting that
the judge reconsider his order vacating the 9 citations that did not
allege violations of 30 CFR §70.lOO(b). On March 7, 1980, the judge
corrected the decision. He withdrew the 9 citations and ordered that
they be incorporated in new cases. The judge cited Commission Rule
65(c), 29 CFR §2700.65(c)(l979), which.provides that the jurisdiction of
the judge terminates when his decision is issued, but permits a judge to
correct inadvertent and clerical mistakes in a decision after it is issued.
1/
On the same day, the judge also issued a decision in MSHA v. Alabama ByProducts, SE 79-110 in which he found that 30 CFR §lOO(b) ~invalid and un enforceable. The Secretary petitioned for review of that decision. The
Commission granted the petition on March 6, 1980.
80-7-13
1694

The Secretary's petition for discretionary review seeks review
of a single issUe.: .-Whet--h&- the judge erred in ruling that there is
no presently enforceable respirable dust standard. The petition was
filed on April 3, 1980, 51 days after the issuance of the judge's
decision. The respondents oppose the petition on the grounds it is
untimely.
The Act requires that a petition for discretionary review be filed
within 30 days after the issuance of the judge's decision. 2/
Commission Rule 5(d), 29 CFR §2700.5(d)(l979), states that "filing of a
petition for discretionary review is effective only upon receipt." The
Secretary urges us however, to regard his petition, filed 51 days after
the judge's February 12 decision, as timely. He argues that his motion
to correct the decision tolled the running of the 30 day period until
such time as the judge acted upon the motion. Citing Commission Rule
l(b), 29 CFR §2700.l(b)(l979), which provides that we be guided "so far
as practicable by any pertinent provision of the Federal Rules of Civil
Procedure", he states that his motion to correct the decision is equivalent
to a motion to alter or amend a judgment filed under Fed.R.Civ.P 59(e).
He states that the courts have held that a Rule 59(e) motion tolls the
appeal period until such time as the judge rules on -thECmotion. Since
the judge granted his motion to correct the decision on March 7, 1980,
he argues that his petition for discretionary review was timely.
We disagree. Commission Rule 65(c) explicitly provides that the
jurisdiction of the judge terminates when his decision has been issued
by the Commission's Executive Director. Section 113 of the Act requires
that petitions for discretionary review be filed within 30 days after
the issuance of the judge's decision. Read together, these provisions
indicate that the 30 day period for filing a petition for review runs
from the date that a judge's decision is issued by the Executive Director.
Because a judge has no jurisdiction to alter a decision that has been
issued except to correct inadvertent and clerical errors, we hold that
the cprrection of such errors does not toll the period for filing a
petition for review. 1/
Cf. Capitol Aggregates, Inc., 2 FMSHRC 1040(1980).
We note in addition that allowing the filing of motions t·1 correct
to toll the period for filing a petition could threaten__ the smooth
functioning of the Commission's review process. The statutory scheme
contemplates that the period for filing petitions and directing review
will run from the date of the issuance of a decision of a judge

2/

Section 113(d)(2)(A)(i), 30 U.S.C. §823(d)(2)(i)(Supp. II 1978).
Commission Rule l(b) permits resort to the provisions of the Federal
Rules of Civil Procedure "on any procedural question not regulated by
the Act, these Procedural Rules or the Administrative Procedure Act".
29 CFR §2700.l(b)(l979). Because Commission Rule 65(c) and the Act
addresses the issue in this case, we do not believe that resort to
Fed.R.Civ. p. 59(e) on this issue is appropriate.

3!

1695

which constitutes his final disposition of the proceedings. 4/ Altering
those periods.when a motion to correct is filed could create confusion
about the deadl-ines -for filing and granting petitions and the exercise
by the Commission of its power to di~ect review on its own motion.
Moreover, our holding should not hamper the parties in preparing
petitions for discretion@ry review. Motions to correct errors due to
inadvertent mistakes do not affect the substance of the judgment nor the
standing of a party and thus have no bearing upon the merits of an appeal.
The principle is aptly demonstrated by this case. The removal of the 9
citations from the.decision and the.order to reinstate them in other cases
left the substance of the judge's decision -- as to which the Secretary
was aggrieved -- undisturbed, did not affect the Secretary's standing, and
had no bearing upon the arguments set forth in the petition for review.
Accordingly, the petition is dismissed as untimely filed.

A.~E. Law~'on, Commissioner

• \ 1\

r

(\

"~\G}1YDJ1~u\YlliriJ1 )\D.Olo
t

Marian Pearlman Nease, Connnissioner

4/

Section 113(d)(l) provides:
An administrative law judge appointed by the Commission
to hear matters under this Act shall hear, and-make a
determination upon, any proceeding instituted before
the Commission • • • assigned to such administrative
law judge • • • , and shall make a decision which
constitutes his final disposition of the proceedings.
The decision of the administrative law judge of the
Connnission shall become the final decision of the
Commission 40 days after its issuance unless within
such period the Commission has directed that such
decision shall be reviewed by the Conunission. • • •
[Emphasis added.]

1696

Distribution
David R. Case, Esq.
North American Coal Corp., etc.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
.Thomas A. Mascolino, Esq.
Cynthia L. Attwood~ Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge Charles C. Moore, Jr.
FMSHRC
Skyline Center #2, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

1697

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
- 1730 K STREET NW, _6TH FLOOR
WASHINGTON, D.C.

20006

July 25, 1980

SECRETARY OF LABOR
on behalf of LARRY D. LONG

v.

Docket No. VA 79-81-D

ISLAND CREEK COAL COMPANY
and
LANGLEY & MORGAN CORPORATION
ORDER
Island Creek Coal Company and Langley & Mcrgan Corporation have
filed petitions for discretionary review of what they believe may be the
decision of the administrative law judge. We find that the judge's
final disposition of the proceedings has not yet been issued and that
the petitions were therefore prematurely filed.
This is a discrimination case brought by the Secretary of Labor on
behalf of Larry D. Long against Island Creek and Langley & Morgan
Corporation ("the operators"). The Secretary alleged that the operators
violated section 105(c)(l) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801 et~· (Supp. II 1978)["the Act"], and in his
complaint requested the following relief: a finding that Mr. Long was
"unlawfully discriminated against ••• for engaging in actions protected
under section 105(c)(l)"; an order that the employment record of
Mr. Long be completely expunged of all references to an unlawfully
issued discharge; an order directing the operators to "cease and desist
in ••• discriminatory harassment" of Mr. Long; an order directing the
payment of Mr. Long's costs and expenses reasonably incurred for and in
connection with the institution and prosecution of these proceedings;
and the assessment of civil penalties against each.operator.
On June 19, 1980, the Executive Director of the Conunission issued a
document entitled "Decision" that had been transmitted to him from the
administrative law judge. The decision was lengthy, and contained
findings of facts and conclusions of law generally unfavorable to the
operators. The judge's last conclusion of law declared that the
operators had violated section 105(c) of the Act by certain reassignments. Immediately after this conclusion of la~, appeared the following:

80-7-18
1698

ORDER
PENDING FINAL ORDER, Applicant shall have 7 days
to submit a proposed order for relief, with service
on Respondents. Respondents shall have 7 days from
such service to file any response to the proposed
order.
On July 14, 1980, Island Creek filed a petition for discretionary
review. Island Creek believes, based on the wording of the judge's
order and discussions with the judge's office, that the document
entitled_ "Decision" was not intended to constitute the judge's final
disposition of the proceeding. It therefore argues the issuance of the
decision should not be viewed as having begun the running of the time
period for filing a petition for discretionary review. Island Creek
notes, however, that this document was transmitted to and issued by the
Executive Director, and states that "[s]uch action would thereby
terminate the jurisdiction of the Judge under the provisions of
[Commission Rule 65(c), 29 CFR] §2700.65(c)." Because Island Creek is
uncertain of the consequences of these events, it filed this petition to
protect its right to seek discretionary review by .the-Commission. The
issue raised by Island Creek is therefore wh~Lher the document issued on
June 19, 1980, constituted the judge's final disposition of the proceedings. Langley & Morgan's petition for discretionary review, which
was filed on July lS, alleges that the judge's decisionis erroneous.
Commission Rule 65 states in part as follows:
§2700.65 Decision of the Judge.
(a) Form and content of the Judge's decision. The
Judge shall make a decision that constitutes his final
disposition of the proceedings. The decision shall be
in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all
the material issues of fact, law or discretion presented
by the record, and an order. If a decision is announced
orally from the bench, it shall be reduced to writing after
filing of the transcript. An order by a Judge approving
a settlement proposal is a decision of a Judge. ·
(b) Procedure for issuance. The Judge shall transmit
to the Executive Director his decision, the record (including the transcript), and as many copies of his
decision as there are parties plus seven. The Executive
Director shall then promptly issue to each party and each
Commissioner a copy of the decision.
(c) Termination of the Judge's jurisdiction;
correction of clerical errors. The jurisdiction of the
Judge terminates when his decision has been issued by the
Executive Director .••.
Once a judge's decision that constitutes his final disposition of the
proceedings is issued by the Executive DirectQr, the periods for drafting
and filing a petition for discretionary review, for the Commission to

1699

consider and order review of the judge's decision on its own motion, and
for the Commission to consider and grant a petition for discretionary
review begin ·to run:-·sectfon 113(d)(l) and (2). In view of these
consequences, the careful following of our rules, which were designed to
ensure the smooth functioning the Commission's review process, is
essentia.J..
Commission Rule 65(a), when read as a whole, requires that the
decision of the judge contain an order that finally disposes of the
proceedings. Inasmuch as the order that appears at the end of the
judge's purported decision does not dispose of the proceeding to any
extent, the issuance of this decision did not start the running of the
review periods in section llJ of the Act. The petitions for discretionary
review are therefore premature.
Accordingly, the petitions for discretionary review are, in these
circumstances, dismissed as premature. The Executive Director shall
return the record to the judge.

A. E. Lawson, Commis
ioner
j

\. h\\\\l}'}-~r}) '· \Ir
,~
1\\
'\. /J',_', ~.U.0._t) .\, ~- r1 Le
Marian Pearlman Nease, Commissioner

1700

Distribution
Marshall S. Peace, Esq.
Island Creek Coal Company
P.O. Box 11430
Lexington, KY 40575
James S. Greene, Jr., Esq.
P.O. Box 995
Harlan, KY 40831
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Administrative Law Judge William Fauver
FMSHRC
Skyline Center, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

1701

-FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
--~

.-~

_,

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

July 29, 1980

JOHNNY HOWARD

v.

DOCKET NO.

SE 80-24-DM

MARTIN MARIETTA CORPORATION

DIRECT-ION FOR REVIEW AND ORDER
-

-~··

-·

The petition for discretionary review filed by Martin Marietta
Corporation is granted. The case is remanded to the administrative law
judge to determine whether Martin Marietta Corr0~ation was in fact
properly served a copy of the complaint of discrimination prior to
issuance of the order of default. Should he determine that service was
not properly made, the administrative law judge is directed to conduct
further proceedings as necessary.

1702

80-7-21

Distribution:
James A. Broderick
Chief Administrative Law Judge
1730 K Street, N:w., 6th Floor
Washington, D. C. 20006
Elliott D. Light
Assistant General Counsel
Martin Marietta Corporation
6801 Rockledge Drive
Bethesda, Maryland 20034
Nathan Kaminski, Jr., Esq.
Schneider & O'Donnell
601 Front Street
P. 0. Box 662
Georgetown, South Carolina

29440

Assistant Solicitor,
U. S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Office of Special Investigations
MSHA, U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203

1703

Administrative Law Judge Decisions
July 1 - 31

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

1 9 JUN 19BO
Complaint of Discharge, Discrimination, or Interference

JOHNNY HOWARD,
Applicant

v.
Docket No. SE 80-24-DM
MARTIN-MARIETTA CORPORATION,
Respondent

MD 79-93

ORDER OF DEFAULT
On November 7, 1979 the Applicant filed a complaint alleging
discriminatory acts based on § 105(c) of the Federal Mine Safety and
Health Act of 1977. According to § 2700.43 of the procedural rules
of the Commission, Respondent is required to answer within 30 days
after receipt of the complaint. No such answer was_Ieceived. On
March 26, 1980, an order was issued to Respondent to show cause why
the relief requested -in the complaint should not be granted. No
response has been received.
Therefore, it is ORDERED that Respondent is deemed to have
admitted the alleged acts of discrimination. It is further ORDERED
that the Applicant be restored to his former position with backpay
and interest, and that Respondent compensate the Applicant for all
costs and expenses (including attorney's fees) reasonably incurred
by the Applicant.

1cit kC-5
~

Distribution:

_£1&,z,·le_/f,l ;:_£

James A. Broderick
Chief Administrative Law Judge

By certified mail

Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203
Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203
Nathan Kaminski, Jr., Esq., Schneider & O'Donnell, Attorneys for
Mr. Johnny Howard, 601 Front Street, P.O. Box 662, Georgetown, SC
29440
Martin-Marietta Corporation, P.O. Box 1160, Columbus, OH

1706

43216

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

20006

June 27, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. LAKE 80-223-M
A. C. No. 20-741-5005

v.
J. P. BURROUGHS & SON, INC.,
Respondent

Holly Sand and Gravel Plant

ORDER OF DISMISSAL
Four section 104(a) citations were issued to Respondent on September 13, 1979. On January 10, 1980, Respo~dent received-a proposed
assessment. In the meantime, a conference was held on January 7, 1980,
in which penalty reductions were negotiated. Respondent states that it
was told by MSHA personnel to ignore the January 10 assessment notice
and await a second proposed assessment based on the~reductions negootiated at the conference. On January 14, 1980, the second proposed
assessment was received by Respondent. Respondent checked the notice of
contest form (the "blue card") and mailed it back to MSHA on February 13,
1980. It was received by MSHA on February 15, 1980.
By corrected order issued April 30, 1980, I granted Petitioner's
motion to dismiss Respondent's notice of contest. !/ Responqent sought
Commission review, and the Commission remanded the case to consider
Respondent's opposition to the motion. I have now considered the affidavit and brief filed by Respondent and the documents previously filed
by Petitioner and I conclude that the notice of contest must be dismissed as untimely.
For the purpose of ruling on the motion, I assume that the 30-day
period began to run when Respondent received the second proposed assessment, that is, on January 14, 1980. Section 105(a) of the Act requires
the operator to "notify" the Secretary that he wishes to contest the
proposed assessment within 30 days from the receipt of the Secretary's
proposal. I construe this to mean that the Secretary must receive the
notice of contest within the 30-day period.
The meaning of "notify" is not specified in the text of the Act,
nor in the regulations dealing with notice of contest, 30 CFR § 100.6(b).
Section lO(a) of the Occupational Safety and Health Act, 29 U.S.C.
§659(a), is parallel to section 105(a). The word "notify" in that section has been construed by the Secretary of Labor to mean that the date

!/ The motion was framed as a motion to dismiss Petitioner's own petition for assessment of civil penalty, but I treated it as a motion to
dismiss the notice of contest.
1707

notice of contest is mailed controls. 29 CFR § 1903.17; Secretary of
Labor v. J.D. lUµm_~-0nst:r-tiction Co., 4 OSHC (BNA) 1255 (1976). It is
significant that the Secretary did not place the same interpretation on
"notify" in regulations. promulgated under the 1977 Act. The difference
may be attributed to the fact that an employer has 15 working days to
give notice of contest under OSHA instead of 30 calendar days. Departure from the ordinary meaning of the word "notify" was thought justified by the rigors of complying with such a short notice of contest
period.
It is the ordinary meaning of the word "notify" which convinces me
that notice of contest was untimely in this case. To notify one of a
fact is to make it known to him. Black's Law Dictionary, (5th ed.
1979): 66 C.J.S. Notify § 23. And when a statute requires notice to be
given, it is the general rule of law that actual personal notice is
required. 58 Am. Jur. 2d Notice § 22.
The time for filing charges under Title VII of the Civil Rights Act
of 1964 begins to run when the affected employee is notified of EEOC's
dismissal. In construing this language, a District Com:·_t said:
While legally Congress might have made the mailing, for
example, of the notice of EEOC's dismissal the time of
initiation of the 90-day period during which the employee
could sue and cut off such opportunity at the end thereof,
it did not do so. The employee must be notified; the
notice must be given to him or her. There is nothin_g in
the legislative history of the statute which points to
any contrary construction or meaning. There must be a
receiving of the intelligence that the charge was dismissed by EEOC. To notify is to make known and usually
in law connotes a notice given by some person, whose duty
it was to give it, to some person who ·was entitled to
receive it or be notified. Notice is given when it is
connnunicated to another.
Reeves v. American Optical Co., 408 F. Supp. 297, 301
(W.D.N.Y. 1976).
Although the notice of contest involved herein was mailed on the
30th day after receiving the second proposed assessment, it was not
received by MSHA until more than 30 days had elapsed. I conclude that
MSHA was not timely notified of Respondent's intention to contest.
Therefore, the notice of contest is hereby DISMISSED and the proposed assessment of $440 is deemed the final order of the Commission.

L.
cl--t /k-.?.S ,zl.l!J~-oc6- -1--1<!J/(!_
/7

)

James A. Broderick
Chief Administrative Law Judge

1708

Distribution:

___ , - --

Robert J. Krupka, Esq., Counsel for J. P. Burroughs & Son, Inc., Cook,
Nash & Deibel, 1201 Second National Bank Building, Saginaw, MI 48607
(Certified mail)
Dkt 4
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (By personal service)
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1709

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

1 JUL 1900
~~~~~~~~~~~~~~~~~~~

)•

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

)
)

)
)
)

Applicant,

Application for Review of
Discrimination

)

v.

)
)
)
)

C.F.& I. STEEL CORPORATION,
Respondent.

DOCKET NO.
Mine:

WEST 80-85-D

Maxwell

)
)

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

DECISION ANP ORDER
APPEARANCES:
Thomas E. K~rson, Esq., Office of the Regional Solicitor,
United States Department of Labor,
for the Applicant,
Richard L. Fanyo, Esq., Welborn, Dufford, Cook, and Brown,
for the Respondent.
Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

This action was brought by Applicant, the Secretary of Labor, Mine
--

Safety and Health Administration (MSHA) [hereinafter "the Secretary"], on
behalf of Alfred A. Santistevan [hereinafter. "Santistevan"] pursuant to the
provisions of section 105(c)(2) 1 of the Federal Mine Safety and Health Act
l/Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
- U.S.C. § 815(c)(2), reads in pertinent part:
"Any miner • • . who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person in violation of the subsection may, within 60 days
after such violation occurs, file a complaint with the
Secretary alleging such discrimination. • • •
If upon •

1710

of 1977, 30 U.S.C. §801 !!. seq. (1978) [hereinafter cited as "the 1977
Act" or "the Act"].

The Secretary alleges that Santistevan received two

suspensions, one for 3 days and one for 30 days, because he made complaints
to his foreman of unsafe conditions in the coal mine in which he worked.
The two unsafe conditions alleged in the Complaint of.Discrimination filed
by Applicant were that:

(1) "on March 29, 1979, the tram motor of the No. 3

Lee Norse Hardhead Miner in Unit 3 was pulling and popping and was unsafe,"
and (2) "Romero [Jose M. Romero, Assistant Mine Foreman, hereinafter
"Romero"] ordered Santistevan to put up an I-beam weighing approximately 600
pounds by himself."
The Respondent denies that it discriminated againsCSantistevan, and
alleges that he was issued the 3 day suspension on June 26, 1979, because of
insubordination and the 30 days suspension on June 27, 1979, because he
instigated an unauthorized work stoppage.
Pursuant to notice, a hearing was held on the merits in Pueblo,
Colorado, on March 4, 5, and 6, 1980.

The completion of the filing of post

hearing briefs took place on June 23, 1980.
GOVERNING PRINCIPLES
Burden of Proof.
The Applicant as the proponent of the order has the burden of proof, to
a preponderance of the evidence, that the Respondent discriminated against
fn 1 cont'd

. . investigation, the Secretary determines that the provisions of this subsection have been violated, he shall
immediately file a complaint with the Commission . • . alleging
such discrimination or interference and propose an order
granting appropriate relief. The Commission shall afford an
opportunity for a hearing . . . and thereafter shall issue an
order, based upon findings of fact, affirming, modifying, or,
vacating the Secretary's proposed order, or directing other
appropriate relief. * * * "

1711

Santistevan in violation of section 105(c)(l) 2 of the Act.
§ 815(c) (2), 5 -U. s-.-c~·

f" 5%(d).

30 U.S.C.

The preponderance of the evidence is

defined as the greater weight of evidence or evidence which is more credible
and convincing to the mind.
(1891).

Button v. Metcalf, 80 Wis. 193, 49 N.W. 809

It is also defined as that evidence which best accords with reason

and probibility.

u~s.

v. McCaskill, 200 F. 332 (1912).

Elements of Proof.
The Applicant must establish that he was engaged in "protected
activity," that is, that he made complaints relating to mine safety, and
that Respondent took discriminatory action against him because of this
protected activity in which he engaged.
1209 (D.C. Cir. 1974).

Munsey v. Motton, 507 F.2d 1202,

The safety complaints made must be shown to be " • .

. the moving force but for which the discriminatory action would not have
occured."

Shapiro v.

Bishop Coal Company, 6 !MBA 28, 59 (1976).
FINDINGS OF FACT

1.

Within approximately two weeks prior to March 29, 1979, Applicant

Santistevan, a continuous miner machine operator for the Respondent,
2/Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30
- U.S.C. § 815(c)(l), reads in pertinent part:
"No person shall discharge or in any manner discriminate
against . . . or otherwise interfere with the statutory
rights of any miner . . . in any coal or other mine subject
to this Act because such miner . . . has filed or made a complaint notifying the operator or the operator's agent . . .
of any alleged danger or safety or health violation in a
coal or other mine, . . . or because of the exercise by such
miner . . . on behalf of himself or others of any statutory
right afforded by this Act."

1712

complained-on several occasions to his section foreman, Jose Romero,
___ - -that the track of a certain continuous miner machine was pulling to the left
,

and that there was something wrong with it.
2.

(Tr. I-116,117) 3 .

As a result of the complaints of Santistevan prior to March 29,

1979, in regard to the continuous miner, "take up jacks" were replaced by
Respondent, two times before March 29, 1979, and once on the graveyard shift
on March 29-March 30, 1979.
3.

A safety inspection of the mine was made by MSHA inspectors on

March 29, 1979.
4.

(Tr. II-84).

(Tr. I-19,20).

During the inspection on March 29, 1979, after discovering that the

continuous miner had not been operating properly, an MSHA inspector
requested that the machine be operated for demonstration.
5.

(Tr. I-22,23).

An MSHA inspector issued a citation to the Respondent for the

following alleged safety violation On March 29, 1979:
"The Lee Norse . • . was not maintained
in a safe operating condition in that
the motor for the cutting head was loose
and the left track was sticking. • . . "
(Tr. I-27).
6.

A hazard posed by the use of the continuous miner at the time of

the inspection was the possibility of pinning someone against the rib.

(Tr.

I-25).
3/The transcripts of the hearing are contained in three volumes, with each
volume renumbered from the first page. Therefore, references to the
transcript will show in roman numeral the volume referred to, followed by
the page number of that volume.

1713

7.

After the citation was issued on March 29, 1979, Romero asked

his crew, including_S-anti;tevan, to come to him first with complaints before
talking to the (MSHA) inspectors.

(Tr. III-40).

Between March 29, 1979, and April 25, 1979, Romero told Santistevan

8.

to put up a beam 16 feet long by 6 inches thick, weighing approximately 600
pounds, as a roof support, which Santistevan assumed was to be accomplished
with the help of the continuous miner machine and the work crew.

(Tr.

I-125,126).
9. The beam was not installed as requested by Romero and the incident
resulted in an agrument between Santistevan and Romero, Santistevan
concluding that Romero wanted Santistevan to put the -oea~ up by himself.

I-126).

(Tr.

10.

On June 25, 1979, Santistevan was operating the continuous miner in

an area where, because of the condition of the roof, the use of 6 foot roof
bolts and straps were required for roof support.

(Tr. I-133,134; Tr.

III-122).
11.

After Santistevan had made a cut with the continuous miner and

because it was determined that more height was needed in order to install
the 6 foot roof bolts, Romero told Santistevan to cut down more of the top.
(Tr. II-214).

12.
roof.

Santistevan took down a small additional amount of top from the
Romero told him it was still not enough, and that he should

down 4, 5, or 6 inches more.

(Tr. II-217).

1714

take

13.

Santistevan again cut down. m:>re top, but as he was backing out

of the area the cuttlng-h~ads-~f the miner continued to operate and cut a
strap which had been put in place as roof support.
14.

(Tr. II-218).

After cutting the strap, Santistevan brought the cutting heads of

the continuous miner down, apologized to Romero, and stated that it. was an
accident.
15.

(Tr. I-134) ..
Romero had stopped the continuous miner by means of pushing the

emergency stop switch on the left side of the machine and accused
Santistevan of intentionally cutting the strap.
16.

(Tr. 11-225, 226).

The continuous miner machine is equipped with a "panic bar" which,

when activated by the operator, stops all movement of the-machine, including
the cutting heads.
17.

(Tr. 11-223).

As a result of the incident involving the roof strap, Romero left a

note for the general mine foreman stating that Santistevan "had cut down a
strap while he was backing the miner out of the face, that it was uncalled
for, [that there] was no need for it, and that he did it in anger."

(Tr.

II-116).
18.

On June 26, 1979, Santistevan was given a 3 day suspension by the

Respondent for alleged insubordination.
19.

On June 27; 1979, a strike occured at Respondent's mine where

Santistevan worked.

Respondent issued a 30 day suspension to Santistevan

for allegedly instigating this strike.
20.

(Tr. I-138).

(Tr. 111-146-148,162,163).

In addition to the 30 day suspension given to Santistevan,

Respondent issued a 30 day suspension to another miner who had also

1715

allegedly instigated the strike, issued 10 day suspensions to um.on
repr·esentatives who participated in the strike, and issued 5 day suspensions
to all others who participated, making a total of 51 suspensions.

(Tr.

II-149; Exhibit V).
21.

At the time the suspensions were recommended, Respondent's manager

of labor relations had no prior knowledge of any safety complaints having
been made by Santistevan.

(Tr. II-150).

DISCUSSION AND ADDITIONAL FINDINGS OF FACT
The Respondent admits in its post hearing brief that Santistevan was
engaging in protected activity when he made complaints about the continuous
miner machine, and that the two suspensions would constitute discriminatory
action if they had been imposed because of protected activity.

The

Respondent argues that the "I-beam incident" did not constitute protected
activity.
Assuming that complaints made involving the continuous miner and the
I-beam incident both constitute protected activity, I find that the evidenc1
is not convincing that the protected activity was the moving force but for
which the suspensions or discriminatory action would not have occured.

The

evidence is convincing that the 3 day suspension was issued because of the
alleged insubordination of Santistevan, and that the 30 day suspension was
issued because he allegedly helped to instigate a strike.
After the citation was issued by MSHA in regard to the continuous
miner, it was perfectly reasonable for Romero to tell his crew t0 come to
him first with safety complaints.

He would then be able to take care of the

1716

problem and, as he testified, keep from receiving citations.

The

evidence is undisp~-ted_t.h;t he did not know about the loose motor used for
the cutting head of the miner.

However, he did know about the problem with

the track of the miner, and general unsuccessful attempts were made to
remedy the problem before the inspection which resulted in the issuance of
the citation.
The evidence shows that the I-beam incident was of no particular
significance with regard to the question of discrimination.

Both Romero and

Santistevan agreed that no one could possibly put the 600 pound beam in
place by himself.

Thus, no one could seriously conclude that Romero ordered

Santistevan to accomplish the job by himself, but that he ·intended for
Santistevan to use the men and machine available to do the job.

When this

was not done, an argument ensued between Santistevan and Romero.
Moreover, the safety complaints involving the continuous miner and the
I-beam incident were too remote to be considered to be the moving force but
for which the suspensions would not have occured.

The incident involving

the continuous miner took place approximately 3 months before the 3 day
suspension.

The I-beam incident took place at least 2 months before the 3

day suspension.

There is no causal connection between those incidents and

either of the suspensions.

There is evidence that Santistevan and Romero

argued about the problem involving the I-beam, but at the end of the
argument both expressed apologies to each other.

1717

(Tr.

II-200).

The 3 day·suspension is conclusively shown to have been issued
because of the alleged l:nsubordination.

Romero testified that Santistevan

became angry when he was told to cut down additional
attempts.

top after two

The only reasonable interpretation of Santistevan's conduct

involving the strap cutting incident was that he got angry at Romero for
ordering him to make a third try with the continuous miner, backed out of
the cut too far, and accidently cut the strap.

The continuous miner machine

could have been stopped immediately 'by use of the panic bar.

In fact,

Romero had to activate the emergency stop button to turn off the miner.

I

conclude that the motive of the Respondent in issuing the 3 day suspension
was not for accidently cutting the strap or for protec~ed activity, but for
alleged insubordination.

As to whether or not Santistevan was in fact

insubordinate, that issue is not relevant for me to decide.
As to the 30 day suspension, there is no evidence that it was prompted
in retaliation against Santistevan as a result of his engaging in protected
activity.

The manager of labor relations for the Respondent did not know of

any safety complaints by Santistevan when he recommended the suspension.
Moreover, other than the length of the suspension, Santistevan was not
singled out, but was included in a group of 51 employees suspended by the
Respondent for participating in the allegedly unauthorized strike.

The

evidence does not show that the moving force was the safety complaints, but
for which Santistevan would not have received a 30 day suspension.

I am not

making any finding as to whether Santistevan did, in fact, instigate an
unauthorized strike.

Rather, I conclude that Santistevan received the 30

day suspension because the Respondent concluded, rightly or wrongly, that he
did do so.

Thus Respondent did not issue the 30 day suspension as

retaliation against Santistevan for engaging in protected activity.

1718

C0NCLUSIONS OF LAW
1.

At all times relevant to these proceedings, the undersigned

Administrative Law Judge has jurisdiction over the parties and subject
matter pursuant to the Federal Mine Safety and Health Act of 1977.
2.

The Applicant has failed to sustain the burden of proof to a

preponderence of the evidence that Respondent discriminated against him in
violation of Section 105(c)(l) of the Act.
ORDER
The proposed order of the Secretary is vacated and the complaint of
discrimination is dismissed.
- ----·

Distribution:
Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Thomas E.
Korson, Esq.
Welborn, Dufford, Cook, and Brown, 1100 United Bank Center, Denver, Colorado
80290, Attention: Richard L. Fanyo, Esq.

1719

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

2 JUL 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (HSHA),

Civil Penalty Proceedings
Docket No. DENV 79-424-PM
A.C. No. 05-00604-05001

Petitioner
v.

Docket No. DENV 79-425-PM
A.c. No. 05-00604-05002

DAY MINES, INC. ,
Respondent

Sherman Tunne-1 Mine
DECISION
Appearances:

James Abrams, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
Piatt Hull, Esq., Wallace, Idaho, for Respondent.

Before:

Judge Charles C. Moore, Jr.

The above cases were heard before me in Leadville, Colorado, on
Tuesday, March 11, 1980. They involve five citations issued to Respondent
during two inspections, one conducted October 3, 1978, and another conducted October 11 and 12, 1978. Two citations were settled at the hearing.
Citation No. 331792 from Docket No. DENV 79-424-PM was settled for $84. It
alleged a violation of 30 C.F.R. § 57.6-177 concerning proper procedures for
the disposal of misfires and carried an assessed penalty of $12. Citation
No. 331462 from Docket No. DENV 79-425-PM was settled for the assessed amount
of $60. That citation was for loose ground (roof) observed by the inspector
in violation of 30 C.F.R. § 57.3-22. The settlements were approved.
The parties submitted several stipulations at the hearing addressing the
six criteria of section llO(i) for assessing -penalties under the Act. I
find that the operator's history of past violations is moderate, that any
penalties assessed would not affect Respondent's ability to continue in
business, and that Respondent abated the citations in good faith. The issues
of negligence and gravity will be considered separately for each citation.
Respondent employs 89 employees at its Sherman Tunnel operation out of which
80 are miners. It operates two mines and produces approximately 133,136 production tons per year at the.Sherman Tunnel Mine making Respondent a mediumsized operator.

1720

Docket No. DENV 79-424-PM
The first citation» 'No:-331787, alleged that a violation of section
57.3-22 was found in the Hilltop Lateral. Section 57~3-22 requires all
working places, haulageways and travelways to be periodically inspected
for loose roof and scaled as necessary. The Hilltop Lateral is a deadend entry off the main tunnel extending about 300 feet. A sump pump is
located approximately 30 feet in from the intersection with the main
tunnel.
The inspector obs.erved loose ground starting "about the area of the
pump" and continuing 300 feet into the lateral (Tr. 43-44). The operator's
witness saw no loose ground in the Hilltop Lateral even though it was his
habit to look for it when inspecting the sump pump (Tr. 262). He never
went past the sump pump, however, as he had been instructed to "stay out of
there" (id.). This same area was later barred down and barricades were
erected~ abate the citation (Tr. 265-266).
The evidence shows there was loose roof in the Hilltop Lateral at least
in the area between the sump pump and a point 300 feet into the tunnel. The
inspector could not clearly remember seeing loose ground in the area between
the pump and the lateral's intersection with the main tunnel (Tr. 43-44).
This area between the sump pump and the entrance to the late~al was clearly
a work area, as miners regularly inspected the pump (Tr. 261). But the
Secretary failed to sustain its burden of proof regarding the presence of
loose ground in this area. Therefore, unless the area between the sump pump
and the dead end of the lateral is either a work area, haulageway or travelway there was no violation of section 57.3-22.
The area past the sump pump contained tracks and was regularly used for
storing cars (Tr. 19-A, 34). The inspector testified that an operator's witness told him during the inspection that the area was not barricaded because
it was needed for switching cars and storing equipment, which necessitated
frequent trips into the area by miners (Tr. 20). The operator did not rebut
these allegations. Based on this evidence, I find that the area beyond the
sump pump was a work area and that loose roof was present. It was testified
that this condition develops over a period of 6 months to 2 years, which
shows negligence on the part of the operator (Tr. 23). This condition was
grave as serious injury often results from roof falls. A -penalty of $80 is
assessed.
Citation No. 331791 is an alleged violation of 30 C.F.R. § 57.6-177
pertaining to misfire disposal procedures. It is alleged that a misfire
occurred at the P25-410 stope and that the operator failed to danger off
the area and dispose of the misfire by either washing out the borehole,
attempting to refire the hole or by inserting new primers.
The inspector testified that he saw the blasting agent ANFO */ and
blasting wires in the fired hole. The presence of both indicates-that
all of the explosive did not detonate and this constitutes a misfire

*f

Ammonium nitrate and fuel oil.

1721

...

'"·

(Tr. 48). He testified in addition that the ANFO was white and the rock
face was gray so_th~t- -th-e ANFO was visible (Tr. 74). The operator's witness
testified on several occasions that he did not see any blasting agent
(Tr. 198, 199, 200). This witness washed out the hole with water after
the citation was issued and again testified that he saw no ANFO or prell (Tr.
202). This witness, who had also drilled and blasted this hole, testified
that due to the vuggy nature of the ground, it was possible that rock could
have caved into the drilled hole after it had been loaded, separating the
prell so that the portion in front of the fallen rock detonated while the
prell behind the rock fall did not. But he concluded that, in his ~pinion,
any remaining ANFO would have detonated a short time thereafter as a result
of the surrounding holes detonating (Tr. 197).
Since the inspector testified in detail about the hole, i.~., that the
leg wires had been shunted or twisted together and stuffed back into the
hole, which was covered with a rock (Tr. 48), and painted with a red circle
(Tr. 52), I am inclined to believe that he also saw ANFO in the blasting hole.
A misfire is a dangerous condition and can cause fatal injuries. I find that
the operator should have followed the procedures in the standard and that in
failing to do so its negligence was high and I assess the--proposed penalty
of $50.
Docket No. DENV 79-425-PM
Citation No. 333814 alleged a violation of section 57.6-1 which requires
detonators to be stored in magazines. The essence of this violation is that
two miners who were blasting the face erred when they left a box of detonators
in the roadway leading to the face until preparation of the blasting holes
had been completed.
Two contract blasters were preparing the face for blasting when the citation was issued. Preparation for blasting consists of drilling a certain
number of holes in a designated pattern and loading those holes with detonators and explosives. In this case, the miner who had finished drilling went
to get the detonators while the other miner, who testified at the hearing
completed drilling his part of the face, which he estimated took 15 minutes
(Tr. 130). The inspector testified on cross-examination that the detonators
were in the roadway for a period of 25 minutes (Tr. 272).
There is a factual dispute about the location of the box of detonators.
Three operator's witnesses testified that the box was next to the rib and
not in the roadway. The inspector testified that the box of detonators was
in the track in the roadway where it could be run over. The inspector was
not asked when he was called back to the stand to rebut the testimony of the
operator's witnesses. I find that the box of detonators was next to the rib
and not in the roadway.
There was also some dispute about whether the container for the detonators was a magazine. "Magazine" is not defined in the regulations so both
parties referred to other explosives standards in -an attempt to define the

1722

word "magazine." The inspector stated that while he was not sure the detonator container conformed to the standard, he did not remember seeing any
exposed metal, which-means.that-the box was properly constructed of nonconductive materials (Tr. 104).
The overall procedure described by the blasters was a reasonable one.
I find that the length of time the box of detonators was lying next to the
rib, whether it was IS minutes or 25 minutes, did not constitute storage
of the detonators in violation of the standard. · The Government has not met
its burden of proving a violation in this case and.Citation No. 333814 is
accordingly vacated.
ORDER
tt is hereby ORDERED that the operator pay to MSHA within 30 days of the
date of this decisionthe sum of $274.

Charles c. Moore, Jr.
Administrative Law ._JµdgeDistribution:
James Abrams, Esq., Office of the Solicitor, U.S. Department of Labor,
1585 Federal Building, 1961 Stout Street, Denver, CO 80204 (Certified Mail)
Idaho

Piatt Hull, Esq., Hull & Hull, Chartered, P. O. Box 709, Wallace,
83873 (Certified Mail)

1723

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

2 JUL 1980
~~~~~~~~~~~~~~~~)

)

SECRET ARY OF .. LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),

)
)
)
)
)
)
)
)
)

Petitioner,

v.

BORS BERRY CONSTRUCTION COMPANY, INC.,)
Respondent.
)

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-174-M,
A/O No. 41-01505-05005
DOCKET NO. CENT 79-210-M
A/O No, 41-01505-05006
DOCKET NO. CENT 79-356-M
A/O No. 41-01505-05008H
Mine: El Paso Quarry and Plant

)
)
~~~~~~~~~~~~~~~~~--

DECISION AND ORDER
APPEARANCES:

Fred J. Haas, Esq., Office of the Solicitor, United States
Department of Labor, Dallas, Texas,
for the Petitioner,
James H. Luckett, Esq., El Paso, Texas,
for the Respondent.

Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

These proceedings are brought pursuant to section 110, 30 U.S.C.
--

§

820, of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et

seq. (1978).

The Petitioner seeks an order assessing proposed civil

monetary penalties against the Respondent for violations alleged in five
citations.

By way of answer the Respondent did not deny the violations

alleged, but challenged the amount of penalties proposed by the Petitioner.
The cases were consolidated and a hearing was held in El Paso, Texas on
April 15, 1980.

The opportunity to file post hearing briefs within 30 days

after the transcript was completed was allowed, but neither party elected to
do so.

1724

The -citations will be discussed in the same order as presented at
the hearing.
FINDINGS OF FACT
1.

At all times relevant to this proceeding, Respondent operated a

rock crushing facility in El Paso, Texas.
2.

A duly authorized representative of the Petitioner, an MSHA

inspector, issued citations and a withdrawal order based upon five alleged
violations observed during the course of inspections of the facility on
March 2, 1979, March 7, 1979, and April 26, 1979; all of which are the
subject of these proceedings.
3.

The imposition of civil monetary penalties in these proceedings

will not effect Respondent's ability to continue its business.
4.

Production at Respondent's facility consisted of approximately

33,800 production tons or manhours per year (Tr. 8).
5.

Respondent has not had a significant history of previou.s

violations.

(Tr. 77).
DOCKET NUMBER CENT 79-174-M
CITATION NUMBER 161218

This citation alleges a violation of 30 CFR § 56.6-44 1 , on March 2,
1979.

I/Mandatory. When vehicles containing explosives or detonators are parked,
- the brakes shall be set, the motive power shut off, and the vehicle shall
be blocked securely against rolling.

1725

6.

A pickup truck containing explosives was parked on an incline

of 20 degrees

on·-~es_Q.c;>i::ident..!s

not blocked.

(Tr. 18, 19, 156).

property and the wheels of the vehicle were

Blasting activities were taking place on Respondent's property and the
evidence was that the blasting was under the supervision of someone other
than an employee of the ~espondent.

Although the Respondent attempted to

!

show that annnonium nitrate is not an explosive, the MSHA inspector on
rebuttal testified that it was not the ammonium nitrate that he was
referring to in the citation as being the explosive, but the four boxes of
dynamite which were also located in the truck bed.

The inspector further

testified that the truck could have slipped out of gear_,__ allowing the truck
to roll down the hill, possibly striking other objects or crossing a public
highway located approximately 300 yards away.

The situation could have

resulted in a fatal explosion.
The citation should be affirmed.
CITATIONS NUMBER 160293 and 160294
Both of these citations allege a violation of 30 CFR § 56.9-2 2 .
7.

On March 7, 1979, two front end loaders, in actual operation at the

time they were observed by the MSHA inspector, had no audible backup signal
alarms working.

(Tr. 48).

1_/Mandatory. Equipment defects affecting safety shall be corrected before
the equipment is used.

1726

8.

The front end loaders were loading trucks from stock piles of

rock material located- at Respondent's crusher.

(Tr. 48).

Respondent's safety director, who accompanied the MSHA inspector on the
inspection, also testified that the backup signal alarms were not working.
(Tr.

113).

He further testified that there was difficulty in keeping the

backup alarms in operation because they were frequently disabled by
employees who became annoyed at their sound.

The Respondent was very prompt

in abating the two citations issued, completing repairs within one-half hour.
(Tr. 113).
The safety hazard involved was the inability of the loader operator to
observe persons behind him while he backed up the machine.

The only worker

that normally would have been exposed to the danger was the plant clean-up
man.

(Tr. 55).
These two citations should be affirmed.
DOCKET NUMBER 79-210-M
CITATION NUMBER 160295
This citation alleges a violation of 30 CFR § 56.9-11 3 .
9.

On March 7, 1979, an MSHA inspector observed a front end loader in

operation at the stock pile area on Repondent's property, and its windshield
was cracked.

(Tr. 59).

3/Mandatory. Cab windows shall be of safety glass or equivalent, in good
- condition and shall be kept clean.

1727

10.

The windshield was approximately 3 feet by 4 feet.

The crack,

which had a spider web efrect, was in the center and extended out 24 to 36
inches.

(Tr. 59, 60).

The MSHA inspector testified that there were haul trucks in the area
in which the front end loader was working, and that the operator's vision
was impaired due to the condition of the windshield.

There was a danger of

the operator running the loader into an unseen vehicle.

The Respondent

abated the citation by replacing the window the same morning that the
ciation was issued.
The citation should be affirmed.
DOCKET NUMBER CENT 79-356-M
CITATION NUMBER 160306
This citation alleges a violation of 30 CFR § 56.15-5 4 .

In

connection with the citation the MSHA inspector issued a withdrawal order.
11.

On April 26, 1979, an MSHA inspector, while accompanied by

Respondent's safety diretor, observed three employees of the Respondent
inside the feeder bin of the primary crusher throwing rocks down toward the
jaws of the crusher.
12.

(Tr. 64).

The jaws of the crusher were in operation at the time of the

incident, and the employees were not wearing any safety b~Jts or lines.
(Tr.

68).

4/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.

1728

The jaws. of the crusher were about 4 feet wide and about 6 feet in
length.

The jaws-"{)pen· ·at-- the top to about 3 feet in width and a feeder belt

carries rock material to this opening.

The employees were standing on the

rocks located above the feeder belt, but the feeder belt was not

operating~

The three employees were approximately 6 or 7 feet from the mouth of the
operating jaw crusher.

(Tr. 70).

The inpector issued the withdrawal order, and the three employees left
the bin within about 30 seconds.

The inspector concluded, and I agree, that

the condition was one which could have reasonably been expected to cause
death or serious physical harm before such condition could have been abated.
The employees had placed themselves in that dangerous location before, even
though it was not permitted by Respondent's safety regulations unless the
entire crusher was "locked out."

It would have taken several minutes to

lock out the equipment, more than enough time for the three employees to
have received fatal injuries.
The citation and withdrawal order should be affirmed.
I find the facts to be as stated in paragraphs number 1 though 12, and
in addition find the following:
13.

Respondent's business is a small operation.

14.

The Respondent demonstrated good faith in achieving rapid

compliance after notification of the violations.
15.

The Respondent was negligent in that the violations resulted from

the failure.of the Respondent to exercise reasonable care to prevent the
conditions or practices which caused the violations, and which Respondent
knew or should have known existed.

1729

16 .. The gravity of the violation involving Citation Number 160306
was serious, and-tne-gr;vity of the other violations was not serious.
CONCLUSIONS OF LAW
1.

The undersigned Administrative Law Judge has jurisdiction over the

parties and subject matter of this proceeding.

At all time relevant,

Respondent was subject to the provisions of the Federal Mine Safety and
Health Act of 1977.
The Respondent violated the regulations cited in Citations Number

2.

161218, 160293, 160294, 160295, and 160306.
ORDER

--

The withdrawal order issued on April 26, 1979, aria all of the above
citations are AFFIRMED, and based upon the criteria set forth in section
llO(i) of the Act the penalties are as follows:
CITATION NUMBER

AMOUNT

161218
160293
160294
160295
160306

$150
25
25
30
500

It is further ordered that the Respondent pay the total penalties
in the above amount of $730 within 30 days from the date of this
decision.

1730

Distrubition:
Office of the Solfcitor~ United States Department of Labor, 555 Griffin
Square Building, Suite 501, Dallas, Texas 75202, Atterition: Fred J. Haas,
Esq.
James Luckett, Esq., 2226 Myrtle, El Paso, Texas 79901

...

;.:

.

1731

--·-·

FEDER..4L MINE SAFETY AND HEALTH REVIEW-COMMISSION
--- -OFFICE- OF ADMINISTRATIVE I.AW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

iii>- 756-6230

...

8 JUL 1990
SECRETARY OF LABOR,
'MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penal~y Proceeding
Petitioner

Docket No. PENN 79-142
A.C. No. 36-06100-03004

Vo

Solar No. 9 Mine
SOLAR FUEL COMPANY,
Respondent
SUMMARY DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Petitioner;
James L. Custer, Manager, Safety and Health, Solar Fuel Company,
Somerset, Pennsylvania, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section l!O(a) of the Federp.l
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act),
to assess a civil penalty against Solar Fuel Company (hereinafter Solar) for a
violation of a mandatory safety standard.

The case is presently at issue upon

the filing of cross motions for summary decision by the parties.
This matter involves the alleged violation of 30 C.F.R.

§

75.503, failure

to maintain in permissible condition all electric face equipment required to

1732

be permissible "which is taken into or used inby the last open crosscut."
Two citations were issued in May 1979, for the alleged violation of the above
regulation.
vacated.

Solar contends that the citations are invalid and should be

MSHA contends that the citations are valid and a civil penalty

should be assessed.
ISSUE
Whether a citation under 30 C.F.R.

§

75.503 may be issued for electric

face equipment which is intended for use in or inby the last open crosscut
when such equipment is not in permissible condition when cited outby the
last open crosscut.
APPLICABLE LAW
30 C.F.R. § 75.503 provides as follows:

"The operator of each coal mine

shall maintain in permissible condition all electric face equipment required
by §§ 75.500, 75.501, 75.504 to be permissible which is taken into or used
inby the last open.crosscut of any such mine."
STIPULATIONS
The parties stipulated the following:
1. On May 3, 1979, and May 4, 1979, duly authorized representative of the Secretary of Labor, coal mine inspector Earl
Miller, performed a regular quarterly inspection at the Solar
Fuel Company's Solar No. 9 Mine.
2. During the course of his inspection on May 3, 1979,
Inspector Miller observed that a Jeffrey mining machine
located in an intake air course outby the last open crosscut,
was not in permissible condition. (See Citation No. 0617857,

1733

attached hereto as Exhibit No •. G-1). He also observed a roof
bolting maCh.ine..,. -in-nan-permissible condition in an intake
air course outby the last open crosscut, on May 4, 1979, at
the same mine in the same working section. (See Citation
No. 0617859, attached hereto as Exhibit No. G-2).
3. The section of the mine in question was being prepared for mining operations which were scheduled to begin
shortly after the issuance of the subject citations. The
operator intended to use both pieces of equipment inby the
last open crosscut while performing these mining operations.
4. On May 3, 1979, mining activities at this section of
the mine, during the shift in which Citation No. 0617857 was
issued, produced 105 tons of coal after the citation was
issued.
5. On May 4, 1979, mining activities at this section of
the mine, during the shift in which Citation No. 0617859 was
issued, produced 285 tons of coal after the citation was
issued.
DISCUSSION
Solar contends that a citation issued under 30 C.F.R. § 75.503 may be
issued only if the nonpermissible equipment is seen inby the last open crosscut.

MSHA contends that nonpermissible equipment intended for use inby the

last open crosscut may be cited even if found outby the last open crosscut.
Both parties cite authorities in suppport of their positions.
Solar relies primarily upon two decisions issued by ~dministrative law
judges and MSHA's Draft Electrical Manual.

In Kaiser Steel Corporation,

Docket No. DENV 73-131-P (April 9, 1974), an administrative law judge vacated
a notice of violation because the equipment was not actually inby the last
open crosscut, stating:

"I do not construe the regulation as requiring that

all electric face equipment, irrespective of where it is located, must at all
times be maintained in permissible condition simply because it is intended to

1734

be taken into or used inby the last open crosscut."

In Mineral Developing

Company, Inc., Docket No. MORG 74-739-P (February 25, 1975), an administrative law judge vacated a notice of violation because MESA (MSHA's predecessor) provided no information to indicate where a nonpermissible scoop was
operating and the judge was therefore "unable to determine that the scoop was
located inby the last open crosscut."
The MSHA Draft Electrical Manual relied upon by Solar in reference to
30 C.F.R. § 75.503 states, "[e]nergized electric face equipment must be
observed in or inby the last open crosscut or in a return entry before a
permissibility violation exists."

Solar concedes that -the-Draft
Manual has
----

never been in effect and is not a regulation or official policy of MSHA.
MSHA relies upon Peabody Coal Company, Docket No. VINC 77-88 (October 10,
1978).

In Peabody Coal Company, the judge rejected the reasoning of Kaiser

Steel Corporation.

The judge in Peabody Coal Company held:

This language clearly supports the proposition that all
electric face equipment falls under the protection of 30 CFR
75.503 regardless of its location in the mine. Thus, the
said shuttle car, which was intended to be used inby the last
open crosscut (see Applicant's brief, P• 2), was in violation
of 30 CFR 75.503.
The holdings of the cases cited by Solar and MSHA are in direct conflict.
In the instant case, MSHA has not shown and does not contend that the equipment in question had been taken into or used inby the last open crosscut at
the time the citation was issued.

MSHA asserts that the fact that the opera-

tor intended to take the machines inby the last open crosscut was sufficient
to prove a violation.

That reasoning, however, ignores the plain language of

1735

the regulation which requires that the equipment be electric face equipment
"which is taken ini:o-ar·u-;ed-inby the last open crosscut."

To prove a vio-

lation of 30 C.F.R. § 75.503, MSHA must show that Solar did not maintain in
permissible condition, equipment which was "taken into or used inby the last
open crosscut."
While I am mindful of the remedial nature of the Act and the fact that
the Act is to be construed broadly to accomplish congressional policy, I find
nothing in the legislative history which would support the position of MSHA
and the holding in Peabody Coal Company, supra.

On the contrary, section

318(i) of the Act provides in pertinent part:

"'Permissible' as applied to

electric face equipment means all electrically operated equipment taken into
or used inby the last open crosscut of an entry * * *·"

In order to support

MSHA's position I would have to find that the language "taken into or used
inby the last open crosscut" as used in this regulation is redundant.

Nowhere

in the Act or regulations is there a requirement that a mine operator maintain
electrical face equipment in permissible condition if it is "intended" to
be taken into or used inby the last open crosscut.

The authority cited for

the contrary holding in Peabody Coal Company, supra, was 30 C.F.R. § 18.90
titled "Field Approval of Electrically Operated Mining Equ:lpment" which provides in pertinent part as follows:
The regulation of this subpart (e) set forth the procedures and requirements for permissibility which must be met
to obtain MESA full approval of electrically operated
machinery used or intended for use inby the last open crosscut of a coal mine which has not been otherwise approved,
certified or accepted * * *· (Emphasis supplied.)

1736

I find that 30 C.F.R. § 18.90 concerning "Field Approval of Electrically
Operated Mining Equipment" is irrelevant to a determination of whether Solar
violated 30 C.F.R. § 75.503.

The former section does not purport to be a

definitional section for the regulation in controversy.

Moreover, it would

be unreasonable to expect a mine operator to conclude that the language
"intended for use" contained in 30 C.F.R. § 18.90 would apply to 30 C.F.R.
§

75.503 when the opposite conclusion is manifest from the language employed.
MSHA does not allege that the electric face equipment involved in the

instant citations was taken into or used inby the last open crosscut.

There-

fore, MSHA has not alleged facts which, as a matter of law,_ constitute a violation of 30 C.F.R. § 75.503.
Under 29 C.F.R. § 2700.64(b):
A motion for summary decision shall be granted only if
the entire record, including the pleadings, depositions,
answers to interrc~~tories, admissions, and affidavits shows:
(1) that there is no genuine issue as to any material fact;
and (2) that the moving party is entitled to summary decision
as a matter of law.
Here, the record shows that there is no issue as to any material fact and,
based upon the foregoing, Solar is entitled to summary decision as a matter
of law.
ORDER
WHEREFORE IT IS ORDERED that Citation Nos. 0617857 and 0617859 are
VACATED, Solar's motion for summary decision is GRANTED, and the petition is

1737

DISMISSED.

IT IS FURTHER ORDERED that MSHA's motion for partial summary

decision is DENIED. ---

~a.
s A. Laurenson, Judge
Distribution by Certified Mail:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA
19104
James L. Custer, Manager, Safety and Health, Solar Fuel Company, P.O.
Box 488, Somerset, PA 15501

1738

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

...

3 JUL 1980
WINDSOR POWER HOUSE COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Contest of Orders
Docket No. WEVA 79-199-R
Docket No. WEVA 79-200-R

Respondent
Beech Bottom Min~
UNITED MINE WORKERS OF AMERICA
(UMWA),
Respondent
DECISION
Appearances:

David M. Cohen, Esq., American Electric Power Service
Corporation, Lancaster, Ohio, for Contestant;
Michael Bolden, Office of the Solicitor, Mine Safety
and Health Administration, U.S. Department of Labor,
Arlington, Virginia, for Respondent, MSHA.

Before:

Administrative Law Judge Melick

These consolidated cases are before me under section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 801 et~.,
upon the applications of the Windsor Power House Coal Company (Windsor) to
contest two orders of withdrawal issued by the Mine Safety and Health Administration (MSHA) under section 104(d)(l) of the Act. In challenging these
orders, Windsor takes issue not only with the validity of the orders per se
but also with the precedential underlying section 104(d)(l) citation which
was the basis of the orders. An evidentiary hearing was held on December 12
and 13, 1979, and on January 23, 1980, in Wheeling, West Virginia.
I.

The Underlying Section 104(d)(l) Citation

The section 104(d)(l) citation underlying both orders at bar was
issued by MSHA inspector Charles Coffield, and received by Windsor, on May 3,
1979. l/ Windsor did not file notice of its intent to contest that ~itation

lf

Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there ha~ been a violation of any

1739

until December 12, 1979, more than 7 months later. Under section 105(d) of
the Act the min.e operator is afforded an opportunity to challenge such a
citation if he notifies-the Secretary within 30 days of its receipt of his
intent to contest the issuance of the citation. Energy Fuels Corp. v. MSHA
1 FMSHRC 299 (May 1, ·1979).
While the former Interior Board of Mine Operations Appeals had permitted
notices issued under section 104(c)(l) of the Federal Coal Mine Health and
Safety Act of 1969 (comparable to citations issued under section 104(d)(l) of
the 1977 Act) to be contested at the hearing challenging a section 104(c)(l)
withdrawal order (comparable to a section 104(d)(l) withdrawal order under
the 1977 Act) based on that notice, Ziegler Coal Company 4 IBMA 139 (·1975),
Eastern Associated Coal Co., 4 IBMA 184 (1975), and Kentland Eklhorn Coal
Corp., 4 IBMA 166 (1975), the justification for such a procedure does not
exist under the 1977 Act. Under the 1969 Act, as interpreted by the former
Interior Board, an abated notice could not otherwise be immediately challenged except as an incident to review of the related withdrawal order.
Under the 1977 Act, however, immediate review of the section 104(d)(l) citation is permitted. Energy Fuels, supra. Moreover, there is no specific
authority in the 1977 Act to allow hearings on a citation at the hearing
contesting a subsequent withdrawal order where the notice to contest that
citation has not been timely filed independent of the withdrawal order. I
conclude therefore that under the 1977 Act, the underlying section 104(d)(l)
citation cannot be reviewed solely as an incident to review of the related
104(d)(l) order but must be independently and timely challenged under the
provisions of section 105(d) of the 1977 Act. I find the decisions of the
Interior Board, cited above, to be in.apposite. Of course, once the right
to review the underlying citation has been preserved by filing in accordance
with section 105(d), then the hearing on that issue could be consolidated
with any hearing requested on any subsequent order of withdrawal based on
that citation.
fn. 1 (continued)
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 o'f a coal or other mine safety or -health hazard, and
if he fincis such violation to be caused by an unwarrantable failure of the
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 Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to such comply, he shall forthwith issue an.
order requiring the operator to cause all persons in the area affect~d by
such violation, except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area u~til an
authorized representative of the Secretary determines that such_ violation
has been abated."
·

1740

Since Windsor did not file its notice of contest to the citation at bar
until more than 30_~ay~_af_te~_its receipt it appears that in accordance with
section 105(d) of the-Act, I am without jurisdiction to consider that
citation.
The Secretary suggested at hearing that since the citation could in anyevent be contested at subsequent penalty proceedings under section 105 of the
Act, I was not without authority to grant immediate review of the citation.
Moreover the parties waived the procedural formalities to the bringing of a
civil penalty proceeding. I thereupon agreed to conduct a hearing on the
underlying citation and issued a bench decision in which I found that the
violation was proven as charged and in which I made special "significant and
substantial" and "unwarrantable failure" findings. Upon closer examination
of the statutory language and decisions of the Commission, I now conclude
that l had no jurisdiction to make those special "significant and substantial" and "unwarrantable failure" findings. Since the provisions of the Act
do allow the operator to challenge at civil penalty proceedings, the existence of the violation charged in a citation and since the parties in this
case waived the procedural prerequisites to such a proceeding, it is apparent
that I did have jurisdiction to review that limited issue at hearing. However, since there is no authority under the Act to consider the special findings of "significant and substantial" and "unwarrantable failure" in civil
penalty proceedings, it is apparent that upon its failure to timely file a
notice of contest to the citation herein Windsor was foreclosed from challenging those special findings. This conclusion is consistent with the
Commission decisions in Pontiki Coal Corporation v. ~ 1 FMSHRC 1476
(October 1979), and Wolf Creek Collieries Company 1 FMSHRC ~(March 1979),
that the validity of a withdrawal order is not an issue in a penalty
proceeding. 1/
Under the circumstances, the Bench decision rendered at the hearing on
December 12, 1979, and set forth below is applicable only to the issue of the
violation itself and any special findings made therein are therefore surplusage. Windsor has waived its right to challenge these special findings by its
failure to timely contest the citation under section 105(d) of the Act.
The citation at bar charges a violation of 30 C.F.R.
relevant part, the citation reads as follows:

§

75.302-l(a).

In

[The] inby end of the line brattice that was being used to
ventilate the working face of No. 1 entry of 2 right 6 east
(029) section was approximately 44 feet 2 inches plus the
cutter bar sumped in and coal was being cut with a 15 RU Joy
cutting machine SN 18046 operated by John V. Mann** *·
2/ Although the-Commission was concerned in these cases with penalty proceedings under section 109(a)(3) of the 1969 Act, there is no reason to
believe that the same construction would not apply as well to the generally
similar provisions of section 110 of the 1977 Act.

1741

The cited standard provides. in relevant parts as follows:
Line br.attice or any other approved device used to provide ventilation. to the working face from which coal is being
cut. ~ined or loaded and other working faces so designated
by the coal mine safety manager. in the approved ventilation
plan. shall be installed at a distance no greater than
10 feet from the area of deepest penetration to which any
portion of the face has been advanced * * *·
At the conclusion of the evidentiary hearing as to the citation and upon
request of counsel. I rendered a bench decision providing. in essence. as
follows:
There is no doubt that when Inspector Coffield came upon the working
face of the No. l entry. the end of the line brattice was at least 44 feet.
plus 8 feet (for a total distance of at least 52 feet) from the point of the
cutter bar's deepest penetration. The inspector's testimony is undisputed
in this connection. Indeed. it is corroborated to a great extent by the
operator's own witness t safety inspector Mike Roxby, ~go.-testified that in
order to abate the violation he needed more than two 20-foot sections of
brattice to abate the violation.
I also observe that in the order itself, Inspector Coffield noted that
the violation was terminated by extending the brattice to within 8 feet of
the working face. Considering the testimony of Roxby that in order to abate
the violation it required more than two additional 20-foot sections of
brattice. it is apparent that there was in fact an extensive distance between
the end of the line brattice to the deepest point of penetration of the working face.
Now. it is also essentially undisputed that some nails for hanging the
brattice were in the roof when Coffield came upon the scene at- the No. l
entry. The testimony is also undisputed that these nails did not extend
to more than 20 or 22 feet from the existing brattice before abatement.
There was some suggestion, I think by Mr. Roxby, that the nails could have
pulled out, but there is no affirmative evidence of that. and Roxby himself
testified that he did not see any nails lying about. There is no contradictory evidenc.e therefore to indicate that any hangers or hanging devices,
nails or whatever, did extend beyond 20 or 22 feet. This becomes significant
because the operator has suggested that its employees, without knowledge of
supervisory personnel, had taken the line brattice down. But the evidence
indicates that the nails extended only 20 to 22 feet beyond the line
brattice as found by Coffield thereby indicating that at best the brattice
was only hung an additional 20 or 22 feet from the line found by Coffield,
thus leaving an additional distance without brattice of 20 or 22 feet, or
even more than that depending on how you look at it, but a m1n1mwn of 20 or
22 feet from the end of the line brattice to the working face.

1742

There is also testimony from Roxby that in order for work to advance
a distance of 30 f~e.t ip_,an._ ~n_try such as the No. 1 entry would require
5-1/2 hours of actual operating time and could actually involve or be spread
over three working shifts. He or one of the other witnesses testified that
the work cycle is to cut, drill, shoot, remove the loose coal and roof bolt.
When Inspector Coffield arrived at 9:35 at the No. 1 entry, the cutting cycle
was underway. According to the most conservative calculation, that would
place Foreman Wheeler at that particular location (Wheeler thought he was
last there at 8:45) when he was in a position to have seen the brattice
(again, even assuming the employees had the brattice hung on the nails
observed by Coffield) some 20 or 22 feet from the existing working face.
Therefore Foreman Wheeler should have seen that it was in violation of the
regulations. Wheeler testified that he thought the line brattice was then
actually 10 to 12 feet from the working face when he saw it. However, based
on the evidence previously noted, it is apparent that Wheeler's approximation was totally erroneous.
I also consider in this case the fact that the company mine safety
inspector, Roxby, testified that he knew of no enforcement policy for correcting employee violations of the brattice regulation and that there had
been a history, according to Coffield, of a rather cavalier disregard on
the part of other foremen in this particular mine for the maintenance of
the brattice regulation.
So all these factors combined lead me to the conclusion that certainly
the operator should have known of the violation in this particular case and
that it was caused by unwarrantable failure, as defined in Zeigler Coal
Company, 7 IBMA 280 (1977). The citation herein was therefore valid.
II.

Order of Withdrawal--Docket No. WEVA 79-199-R

Order of Withdrawal No. 811582 alleged violations of 30 C.F.R. § 75.400,
charging that there were accumulations of loose dry coal in five different
locations in the north main section of the mine and oil, grease and coal on
various mining equipment including a shuttle.car, a cutting machine, the
coal feeder and the loading machine. The cited regulation provides that
"[c]oal dust, including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials, should be cle~ned up and not
be permitted to accumulate in active workings, or on electric equipment
therein."
The cited regulation had been interpreted by the Interior Department's
Board of Mine Operations Appeals in Secretary v. Old Ben Coal Company, 8 IBMA
98 (August 17, 1977), as requiring proof of: (1) An accumulation of combustible materials, (2) the operator's knowledge, actual or constructive, that
such accumulations existed, and (3) the failure of the operator to clean up
or undertake to clean up such accumulations "within a reasonable time after
discovery, or, within a reasonable time after discovery should have been
made." On December 12, 1979, the date on which the hearing in this case
commenced, the Federal Mine Safety and Health Review Commission reversed the

1743

Board's decision and held that a violation of 30 C.F.R. § 75.400 exists upon
a finding alone that an g_c~umulation of combustible materials exists. Secretary v. Old Ben Coai-C~mpany, 1 FMSHRC 1954 (1979).
While as a matter of fundamental fairness to operators who have been
permitted to rely upon the Interior Board's Old Ben decision and consistent
with the criteria set forth by the Supreme Court of the United States in
its holdings regarding retroactive application of judicial and agency decisions, 3/ I believe the Commission's Old Ben decision should not be applied
retroactively to orders and citations issued after the Board's decision and
3/ As pointed out by the United States Supreme Court in Linkletter v. Walker,
381 U.S. 618, 14 L.Ed.2 601, 85 s. Ct. 1731 (1965), retroactive operation of
an overruling decision is neither required nor prohibited by the Constitution
and the determination of whether and to what extent a new rule adopted and an
overruling decision will be given retroactive effect is not a matter of constitutional compulsion but a matter of judicial policy, to be determined by
the court after weighing the merits and demerits of the particular case, by
looking to the prior history of the rule in question, its__ purpose and effect,
and whether retroactive application will further or retard its operation.
Retroactive effect to an overruling decision will be denied where there has
been justifiable reliance on decisions which are subsequently overruled and
where those who have so relied may be substantially harmed if retroactive
effect is given to the overruling decision. Safarik v. Udall, 113 App. D.C.
303, 304 F.2d 944 (1962), cert. denied, 371 u.s. 901, 9 L.Ed.2d 164, 83 s.ct.
206; Lyons v. Westinghouse Electric Corp., 235 F. Supp. 526 (1964 D.C. N.Y).
The Supreme Court in NLRB v. Bell Aerospace Company, Division of Textron,
Inc., 416 U.S. 267, 40 L.Ed.2 134, 94 s. Ct. 1757 (1974), again suggested
th.it retroactivity will be denied when a party has relied upon prior administrative agency holdings and such reliance would result in adverse consequences. If new liabilities are being imposed, fines levied, or damages
awarded, reliance on past agency practices and rules will not be penalized.
Mezines, Stein and Gruff, Administrative Law, § 14.01; and Annotations at 14
L.Ed.2 992; 10 ALR.3d 1371 and 22 L.Ed.2 821.
Within this framework, it appears that the Commission's decision in
Old Ben should not be applied retroactively to the order in this case nor to
any order or citation issued after the date of the Board' s--Old Ben decision
and before the date of the Commission's Old Ben decisidn. Windsor in this
case and other operators similarly situated clearly had a right to rely upon
the Board's Old Ben decision until modified by the Commission. They should
not therefore now be penalized for such reliance.
As also pointed out in Linkletter, another factor to be considered in
determining whether to give general retroactive effect to a new judicial rule
adopted in overruling earlier precedents is the purpose of the rule. If the
purpose of the new rule can be adequately effectuated without applying it
retroactively, retroactive operation may properly be denied. LZons v.
Westin,house, supra; U.S. ex. rel. Angelet v. Fay, 333 F.2d 12 1964 CA
2 N.Y. , aff'd., 381 U.S. 654, 14 L.Ed.2d 623, 85 S.Ct. 1750; Sisk v. Lane,
331 F.2d 235 (1964 CA Ind.),~· denied, 380 U.S. 959, 13 L.Ed.2d 977,

1744

before the Commission decision, the Commission has in fact given it retroactive effect. Se.cret;ary ¥.-C.C.C.-Pompey Coal Company, Inc., 2 FMSHRC _
(June 12, 1980). Accordingly, I apply in this case the law set forth in
Old Ben Coal Co., 1 FMSHRC 1954 (1979). Thus, in proving the violations of
30 C.F.R. § 75.400 now before me, MSHA need only establish the existence of
an accumulation of combustible materials. The term "accumulation," has been
simply defined as "a mass of something heaped up or collected." The American
Heritage Dictionary of the English Language, Houghton, Mifflen Co. (1976);
lA Words and Phrases, 11 Accumulate, Accumulation." 4/ I find that this definition appropriately reflects the meaning of the t;rm as used in the cited
regulation. Applying this standard to the facts, I find that MSHA has proven
violations in five of the nine factual circumstances cited.
Inspector Coffield testified that the first three accumulations were
located outby the survey station marked 120 + 59 in the No. 5 entry of the
north main section and ranged in size from 2-1/2 to 3 feet high, 3 feet to
8 feet wide and 2 feet to 5 feet long. Another pile of loose dry coal was
located inby the 7 West tailpiece and was 10 to 20 inches deep, 8-1/2 feet
wide and 8 to 14 feet long. The fifth pile of loose dry coal~ located at the
No. 5 entry of the 7 West North main section, was 2 to 8 inches deep 14 feet
wide and 40 feet long. The piles were measured by Coffi·eTCI. in the presence
of Windsor's safety inspector, Michael Roxby.
Coffield opined that the first three piles had been created as a result
of dumping because of the way they were formed. He thought they had been
there from 1 day to as long as 3 weeks because the coal was excessively dry
and there was evidence that a scoop tractor or similar equipment had pushed
it to the side and run over it. He dug into the piles with a stick, examined
them and concluded that they consisted entirely of coal. He took no samples
and performed no tests on the coal.
Coffield also concluded that all five piles of coal were located in
areas traveled in preshift examinations. He observed that the shift then in
operation had begun about 8 :_00 or 8: 30 that morning. He discovered the first
of the subject piles around 9:05 a.m. and found the rest before 9:50 a.m.
Coffield concluded that since coal had not yet been mined during that shift
fn. 3 (continued)
85 s.ct. 1100. Since the primary purpose of the standard cited in this case
is to prevent future dangerous accumulations of coal dust, loose coal and
other combustible materials, the purpose of the Commission's interpretation
of the rule can be properly effectuated without applying it retroactively.
4/ Although the term may also connote a buildup over a period of time,
TA, Words and Phrases, supra, the Commission has in its Old Ben decision
implicitly rejected any such time concept. The Commission rejected the use
of the time concept adopted by the former Interior Board in its Old Ben
decision and found that the "vast spillage" found in Old Ben was, in itself
and without consideration of time for buildup, sufficient evidence of a violation of 30 C.F.R. 75.400.

1745

and because coal had not been mined during the midnight shift, the coal must
have be.en spilled on tI:ie_p!:_~vious day's 4 to 12 shift. He also concluded that
the accumulations-of-loose coal were co~bustible and presented a hazard of
fire or possible explosion because of energized equipment located in the ar~a.
I find Coffield's testimony to be credible and his visual observations
sufficient to support the violations regarding the five accumulations of
loose coal. Coal Processing Corporation, 2 IBMA 336 at pp. 345-346. I find
from the large size of these piles that each constituted an accumulation
under the cited standard. I further find that the operator had at least constructive knowledge of the accumulations and should.have known of their existence from a properly conducted preshift examination. It is undisputed that
coal had not been mined after the 4 to 12 shift on the previous day and that
the piles remained as late as 9:50 on the morning of the inspection. Moreover company safety man Michael Roxby conceded that the scoop tractor had
placed the first pile there earlier in the shift so that the tractor could be
used to load posts to correct a roof condition.
In reaching my conclusions herein, I have given full consideration to
the testimony of Roxby, mine superintendent John Skeens, ~nd mine safety
supervisor David Maulkey. However, for the following reasons I can give but
little weight to that testimony. While Roxby testified that the cited piles
of coal were either too wet to be combustible or so intermixed with incombustibles so as to be virtually incombustible itself, he conceded that he was
not present during the entire inspection, that he took no samples from any of
the cited piles and performed no test of combustibility or wetness. Roxby's
silence and lack of protest when Inspector Coffield measured the cited coal
piles may also be construed as an admission. If Roxby indeed believed that
the piles were too wet or that they were intermixed with noncombustibles, it
is reasonable to expect that he would have protested in the face of what must
have been obvious preparation for a citation or order.
Similarly, I can give but little weight to the testimony of Skeens and
Maulkey because they did not accompany Coffield on his inspection and their
observations were made sometime later. It is apparent moreover, that since
Skeens' testimony differed from both Coffield's and Roxby's regarding the
nature of some the coal piles it is quite likely that the witness was not
even referring to the same piles that were cited.
Since I have already found that the operator should have known of the
five loose coal accumulations cited and failed to exercise reasonable care
in cleaning up those accumulations, I find that the violations were caused
by the unwarrantable failure of the operator to comply with the cited standard. Ziegler Coal Company, 7 IBMA 280 (1977). 1/

2./

"Unwarrantable failure" is defined therein as the failure by an operator
to abate a condition that it knew or should have known existed, or the failure to abate because of indifference or lack of due diligence or reasonable
care. Under this sweeping definition, it is apparent that practically any
violation would be the result of such "unwarrantable failure."

1746

I do not find on the other hand that any violation existed with respect
to the alleged oil~.grease-and- coal found on a shuttle car, the cutting
machine, the coal feeder and the loading machine. The.Government failed
to satisfactorily establish that these substances existed in sufficient quantity to constitute an "accumulation." Indeed, Inspector Coffield admitted
on cross-examination that he could not recall the amount of "accumuLations"
on this equipment. Moreover, as a finder of fact I need more than the
inspector's bare conclusions in this regard.
III.

Order of Withdrawal--Docket No. WEVA 79-200-R

Inspector Coffield issued Order of Withdrawal No. 811583 on May 16, 1979,
for a violation of 30 C.F.R. § 75.202 alleging that "there were overhanging
ribs -up to 58 inches wide in Nos. 1 through 9 entries and the last open crosscut previous to No. 1 entry of North Mains of 7 West North Mains, 027 Section,
for a total of approximately 900 feet and approximately one-half of the ribs
were loose" (Tr. 30). The cited regulation provides as relevant herein that
"[l]oose roof and overhanging or loose faces and ribs shall be taken down or
supported."
Windsor concedes in its pleadings that it was in violation of the cited
standard in the No. 1 entry and does not deny that it was the result of
"unwarrantable failure." It contends only that the violations and "unwarrantable failure" findings in entries Nos. 2-9 were erroneous.
Inspector Coffield entered the subject mine on May 16 around 8:30 a.m.
and observed upon his arrival at the No. 1 entry, loose ribs and top along
the left rib of the entry. Proceeding to the Nos. 2 and 3 entries, he
observed more loose ribs on the roof on both sides with up to 4 feet of
overhang. In the No. 4 entry, he observed loose ribs on both sides and in
the No. 5 entry observed loose ribs behind the curtain on the right side. In
the No. 6 entry, he observed loose ribs on the right side overhanging 3 to
3-1/2 feet. In the No. 7 entry, he observed loose ribs and overhanging on
the right side. In the No. 8 entry, the right rib was loose and overhanging up to 58 inches and in the No. 9 entry, loose ribs were overhanging on
the right side. Coffield determined that the overhangs were loose by
observing cracks and breaks in the strata between the roof and rib. In some
places, Coffield tested the roof with a pick-like instrument and discovered
that it fell "real easily, just a touch." There were no supports for any
of the overhanging ribs. In his opinion, the condition was obvious and had
existed in nine entries for about a week and in the last open crosscut for
more than a week. Coffield thought the condition was serious because of the
possibility of fatal injury from a rib or roof fall.
I find the inspector's testimony to be credible and his expert opinions
to be based on sufficient evidence to support the withdrawal order. His
testimony in significant respects is indeed corroborated by Windsor's own
safety inspector Roxby and mine superintendent Skeens. Both of these men
observed numerous cracks in the ribs. Roxby conceded that some of the ribs
were not perpendicular and that some contained loose material. Neither

1747

specifically denied that the ribs were, as a factual matter, "overhanging"
but claimed only that .ill. tj_i_eir opinion the ribs posed no danger. Since the
essence of the vfolation charged is the mere existence of unsupported "loose
roof and overhanging .or loose faces and ribs," their opinion that such ribs
posed no danger is immaterial.
Under the circumstances, I find that the violations existed as charged
and that Windsor should have known of their existence. They were therefore
the result of "unwarrantable failure." Zeigler Coal Company, 7 IBMA 280
(1977). The order of withdrawal was therefore valid in its entirety and no
modification is warranted.
ORDER
I.

Docket No. WEVA 79-199-R

Order of Withdrawal No. 811582 is affirmed as to the first five accumulations described therein but modified and found invalid as to the last four
alleged accumulations described therein.
II.

Docket No. WEVA 79-200-R

Order of Withdrawal No. 811583 is affirmed
No. WEVA 79-200-R is therefore dismissed.

Distribution:
David H. Cohen, Esq., Assistant Legal Counsel,
Electric Power Service Corporation, P.O. Box
43130 (Certified Mail)

Supply, American
Lancaster, OH

Michael Bolden, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 Fifteenth
Street, NW., Washington, DC 20005 (Certified Mail)

1748

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
--OFFICEOF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52(11 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

{703) 756-6230

S JUL 1980
Civil Penalty Proceedings

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

Docket No. YORK 79-21-M
A.C. No. 30-02135-05002

v.

Docket No. WILK 79-102-PM
A.c. No. 30-02135-05001

NEW YORK STATE DEPARTMENT
OF TRANSPORTATION,
Respondent

Docket No. YORK 80-2-M
A.c. No. 30-02358-05001
Underwood Pit
Botsford Pit

DECISION
Appearances:

Deborah B. Fogarty, Esq., Office of the Solicitor, u.s.
Department of Labor, New York, New York, for Petitioner;
William s. MacTiernan, Associate Attorney, Legal Services
Bureau, New York State Department of Transportation,
Albany, New York, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY •

(~i

These proceedings arise out of the consolidation of three c1v1l penalty
proceedings brought by the Secretary of Labor, Mine Safety and Health Administration (hereinafter MSHA) against the New York State Department of
Transportation (hereinafter New York), under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), (hereinafter the Act).
Prior to hearing, New York moved to dismiss all three cases for the
following reasons:

1749

1. The pits in question are not subject to MSHA
jurisdiction;.

2. Enforcement of the Act against New York violates the
tenth amendment of the Constitution;
3. New York's activities in connection with these proceedings are not within the ambit of the Act "because the
products thereof did not enter commerce nor did the operation
or products thereof affect commerce."
I denied New York's motions in an order denying motions to dismiss (attached
hereto and incorporated herein as an Appendix) for the reasons stated therein.
In that order I found that a hearing was required to determine whether the pits
in question were "borrow pits" within the definition of that term in the
Interagency Agreement between MSHA and OSHA.
MSHA has authority to administer the Act which applies to all "mines."
A mine is defined in the Act, 30 u.s.c. § 802(h), as "an area of land from
which minerals are extracted in nonliquid form."
Botsford Pit meet that definition.
.reach of the Act.

The Underwood Pit and the

They are, therefore, mines within-the

Consequently, MSHA would have jurisdiction over them.

However, MSHA has issued a formal interagency agreement to define its jurisdiction vis-a-vis the Occupational Safety and Health Administration (hereinafter OSHA) in which it has limited its jurisdiction.
between MSHA and OSHA,

Interagency Agreement

u.s. Department of Labor, dated March 29, 1979.

44 ~· Reg.@;22827 (April 17, 1979).

That agreement states that "borrow

pits" are subject to OSHA jurisdiction.

A borrow pit is defined as:

[A]n area of land where the overburden, consisting of unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction
occurs on a one-time only basis or only intermittently as
need occurs, for use as fill materials by the extracting

1750

party- in the form in which it is extracted. No milling is
involved, exc_e.pt__fpr_the use of a scalping .screen to remove
larger rocks, wood and trash. The material is used by the
extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit. MSHAOSHA Interagency. Agreement, par. B(7), 44 Fed. Reg. 22827
(1979).
"Milling" is. defined in the agreement to include "sizing."

"Sizing" is

defined as "the process of separating particles of mixed sizes into groups
of particles of all the same size or into groups in which particles range
between maximum and minimum size."
A hearing was held in Albany, New York, on June 10, 1980.
Gadway and Ronald Mesa, testified on behalf of MSHA.
fied on behalf of New York.

Randall L.

-Gcn:'aon Reimels testi-

Upon completion of the taking of testimony,

the parties submitted oral arguments.
ISSUES
1.

Whether the pits in question are under the jurisdiction of MSHA.

2.

Whether the Commission can decide that the Act may be constitu-

tionally enforced against a ~tate.
3.

Whether enforcing the Act against the State violates the tenth

amendment.
4.

Whether the State's activities are within the coverage of the Act.

S.

If the pits in question are determined to be under MSHA jurisdic-

tion, whether New York violated the Act or regulations as charged by MSHA
and, if so, the amount of the civil penalty which should be assessed.

1751

APPLICABLE LAW
Section llO(i) of the Act, 30 u.s.c. § 820(i), provides in pertinent
part as follows:
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.
30 C.F.R. § 56.18-10 provides as follows:
visors shall be trained in first aid.

"Mandatory.

Selected super-

First aid training shall be made

available to all interested employees."
30 C.F.R. § 56.9-87 provides as follows:
Mandatory. 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.
30 C.F.R § 56.14-1 provides as follows:

"Mandatory.

Gears; sprockets;

chains; drive, head, tail, and takeup pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed moving machinery parts which may
be contacted by persons, and which may cause injury to persons, shall be
guarded."
30 C.F.R. § 56.9-22 provides as follows:

"Mandatory.

shall be provided on the outer bank of elevated roadways."

1752

Berms or guards

STIPULATIONS
The stipulations in these cases are as follows:
1. The New York State Department of Transportation's
sand extraction operation at the Underwood Pit is a yearly
operation for the purpose of stockpiling sand for winter snow
and ice control for certain highways within Essex County.
2. The Underwood Pit is located at the intersection of
Route 9 and Route 87 on the Northway extension of the New York
State Thurway which road continues north to Montreal, Canada.
3. The New York State Department of Transportation's
sand extraction and stock pile operation at the Underwood Pit
in 1978 took place on July 5, 6, 7, 10, 12, 13 and 14.
4. The employees present at the Underwood Pit during
the sand removal consisted usually of three employees~ On
July 6, 1978, four employees were present at the site.
5. The equipment used in the extraction of sand operation at the Underwood Pit in 1978 consisted of a Telesmith
screening plant, a Northwest crane and a Case front-end
loader.
6. Except when extracting sand, this equipment is not
generally at the Underwood Pit. A front-end loader is kept on
site in the winter for the purpose of loading the stockpiled
sand into trucks.
7. Randall Gadway is presently employed by the Mine
Safety and Health Administration, hereinafter MSHA, as a
metal, non-metal mine inspector.
8. Randall Gadway has been employed in the capacity of
the safety and health mine inspector by the Mining -Enforcement
and Safety Administration, hereinafter MESA, predecessor of
MSHA and by MSHA since 1975.
9. Prior to his employment with MESA/MSHA, Mr. Gadway
was employed in the mining industry since 1966.
10. On July 5, 1978, as a part of his responsibilities,
Mr. Gadway inspected Respondent's Underwood Pit.
11. At the time of the inspection, Mr. Gadway obse!ved
the screening plant in operation.

1753

12. At the time of the inspection, bulk material was
being removed frol!!_rjl~ bank of the Underwood Pit and was
being dumped lrito a hopper.
13. From the hopper, the extracted material was
transported by conveyor belts to the screen.
14. Sand similar in size and quality to beach sand was
dropping through the moving screen.
15. The sand dropping through the moving screen was
being removed and stockpiled.
16. At the time of the inspection, the reverse signal
alarm of the Case front-end loader was not working.
17. Respondent will not raise the defense that the
proposed assessments will affect the operator's ability to
continue in business.

no

18. Prior to July 5, 1978, Respondent had·
previous
history of paid violations at its Underwood Pit facility.
19. Respondent's Underwood Pit is in Region I by designation of the New York State Department of Transportation.
Region I includes all of Essex County, New York.
20. The parties stipulate that the four conditions
involved in all four citations--that is Citations 220483, and
220484 at the Underwood Pit and 219993 and 219994 at the
Botsford Pit, that these conditions were abated within the
time specified by the inspector for abatement and that compliance was normal for all four situations.
21. The parties agree that there were no berms in the
upper roadway on the north side of the Botsford Pit.
SUMMARY OF THE EVIDENCE
Operations at the Underwood Pit and the Botsford Pit
While the parties arrive at conflicting conclusions from the evidence
presented, there is no essential dispute of fact in this case.
Underwood Pit is described as follows:

1754

The

300 to 400 feet in diameter,

30 to 40 feet high, and a 70-degree angle of repose of thematerial being
extracted.

The equtpmettt-· emproyed at this site consists of the following:

shed, crane, screening plant, and front-end loader.

On

the day of the

inspection, July 5, 1978, a foreman and three employees were present at the
site.

A front-end loader was used to extract loose, unconsolidated material

from the face and to dump this material on a hopper.
transported the material to a shaker screen.

A conveyor belt then

No screen of any kind was

placed over the hopper ·so that all material dumped arrived at the shaker
screen by the conveyor belt.

The raw material dumped at the hopper ranged

in size from sand-size particles to fist-size rocks.
trash in this material.

There was no wood or

The shaker screen permitted mat~!'J.al :approximately

one-quarter inch or less to pass through.

Larger material was discarded.

The material passing through the screen was picked up by a crane and stockpiled approximately 30 to 40 feet from the plant.

Salt was added to the

sand which had passed through the screen and the mixture was stockpiled for
winter use by New York for ice control on the State highways.
The Botsford Pit consists of five levels which were being mined by
various entities.

New York was mining only on level 2.

In that area, th·e

Botsford Pit is described as being 150 feet in diameter with an 11-foot
high face.

The material being extracted from the face ranged in size from

fine sand to cantaloupe size particles.
stones in the area being mined.
was on a grade.

There were no trees, trash, or large

There was an access road to level 2 which

The equipment at the Botsford Pit on the day of inspection,

June 27, 1979, was as follows:

a Barber-Greene screen, a front-end loader,

a truck mounted shovel, and two dump trucks.

1755

Four employees were present

on the date of inspection.

The procedure followed in extracting the minerals

and dumping them· int.c:)' the-hopper was the same as at. the Underwood Pit.

How-

ever, at the end of the conveyor belt, the Barber-Greene screen permitted
particles of up to 1-1/2 inches to pass.
discarded.

All larger size particles were

Gordon Reimels, New York's resident engineer in charge of high-

way maintenance for _the area in question, testified that New York had specifications· that 1-1/2 inches was the maximum size to be used as shoulder fill
for rebuilding roads.

Some of the material passing through the screen was

hauled away in dump trucks for reconstructing shoulders along state highways
and the remainder was stockpiled for future use.

The material which passed

through the screen was used by New York for shoulder grad~, drainage backfill, and permanent repair of the State roads.
Citation No. 220483
Inspector Randall L. Gadway conducted an MSHA inspection of the Underwood Pit on July 5, 1978.

At that time, he asked the foreman and three

employees for proof of their current first aid training.
ent had any such proof.
~ng

None of those pres-

The foreman was unable to locate a first aid train-

certificate and was not sure if his training certificate had been issued

within the last 3 years.

There was no first aid material at the plant and no

ambulance was on the site.

Inspector Gadway testified that an employee at

the site could sustain a severe injury and would require first aid to keep
him alive until he got to a hospital.

He testified that New York should have

known about this violation since the pit had been previously inspected by
MESA, the predecessor to MSHA.

He believed that an injury was probable

because an injured worker would go into shock if no first aid was adminstered.

1756

(..

Citation No~ 220484
On the same day, ·at the Underwood Pit, Inspector Gadway observed that
the backup alarm was not working while the front-end loader was moving in
reverse.

Tile operator of the loader had an obstructed view because he could

not see a person standing 3 feet behind the loader.
served as an observer for the loader operator.

No other employee

Tile operator of the loader

stated that the backup alarm was malfunctioning and that had been reported.
He did not indicate when that report had been made.

Although there was no one

on foot in the innnediate area,. there was one worker in the vicinity of the
hopper approximately 20 to 30 feet from the loader.

In this case, Inspector

Gadway did not believe that .the violation would have been apparent to New York
since his experience indicated that backup alarms easily malfunction.

Tile

violation in this case could result in the loader running over a person or
vehicle.

One person would be affected.

Tile gravity of the violation would

range between a miner being brushed to a fatality.

Inspector Gadway believed

that an accident was probable.
Citation No. 219993
On June 27, 1979, MSHA Inspector Ronald Mesa conducte4 an inspection of
the Botsford Pit.

He found that there were 13 exposed idler rollers on the

conveyor belt which were not guarded.

Tile pinch points were exposed.

foreman was present and the condition was obvious.
injury.

One person was exposed to

New York should have known of this condition.

abated by welding iron guards against the idler arms.

1757

Tile

Tile violation was

Citation No. 219994
On the same day, Inspector Mesa found that there was no berm on the
elevated access road.
below.

This road was elevated 11 feet above the surface

The condition was obvious.

It should have been known to New York.

He observed four loads being hauled on the road on that day.

One person

would be affected by· the possibility of a truck overturning.

An accident

could result in lost work days and permanently disabling injuries.

Inspector

Mesa was unaware of any history of accidents at this pit.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of the parties have been considered,

As noted, supra, New York's arguments based upon

a lack of jurisdiction due to the tenth amendment to the Constitution and
the fact that the products of its operations at the pits in question did not
enter commerce or affect commerce have been rejected for the reasons set
forth in the Appendix herein.

However, there remains the question of whether

MSHA has jurisdiction over the pits in question in light of the MSHA-OSHA
Interagency Agreement.

A resolution of that question depends upon whether

either or both of these pits qualify as a "borrow pit" under that Agreement.
With regard to the Underwood Pit, the evidence establishes that raw material
ranging in size from fine sand to fist-size rocks is screened so that only
sand sized particles (one-quarter inch or less) are used in combination with
salt by New York to control ic.e on highways during the winter.

As pertinent

here, the MSHA-OSHA Interagency AgreP.ment provides, "extraction occurs * * *
for use as fill materials by the extracting party in the form in which it is

1758

extracted.·

* * * The material is used by the extracting party more for its

bulk than its intrinsic qualities * * *·"

While the term "fill" is not

defined in the agreement, that term means, "material used to fill a cavity
or passage."

Dictionary of Mining, Mineral and Related Terms, Bureau of

Mines, Department of Interior, 1968.

Thus, it is obvious that the material

extracted by New York from the Underwood Pit for the purpose of controlling
ice on highways during the winter is not "for use as fill materials."
is used for its intrinsic abrasive qualities.

It

Since New York does not use

the sand for fill materials, but rather for its intrinsic qualities, the
Underwood Pit is not a "borrow pit" within the meaning of the MSHA""".OSHA
Interagency Agreement.
With regard to the Botsford Pit, the evidence establishes that some of
the material processed by New York through the Barber-Greene screen is used
as fill materials.

However, New York specifies that only materials up to

1-1/2 inches in diameter can be used as fill material.

Since the Barber-

Greene screen separates the raw materials into groups which the particles
range between maximum and minimum size,

i.~.,

particles ranging from fine

sand up to 1-1/2 inches in diameter pass through the screen and particles
in excess of 1-1/2 inches in diameter do not pass through ~he screen, this
constitutes "sizing" as defined in the MSHA-OSHA agreement, not as a scalping screen as asserted by New York.

Likewise, since "sizing" is included

within the term "milling" and "milling" is prohibited in a "borrow pit," the
Botsford Pit is not a "borrow pit" within the above agreement.

For the above

reasons, I find that neither the Underwood Pit nor the Botsford Pit is a
"borrow pit" as that term is defined in the MSHA-OSHA Interagency Agreement.
Therefore, both pits are subject to MSHA jurisdiction.

1759

Citation No. 220483
This citation alleges the following:

"Current first aid training was

not provided to selected supervisors and interested employees at the pit."
It is required by 30 C.F.R. § 56.18-10 that selected supervisors should be
trained in first aid and such training shall be made available to all interested employees.

The evidence in this case does not support a finding of a

violation of this standard.

The evidence establishes only that none of New

York's employees at the Underwood Pit on the date of this inspection had a
current first aid card.

The regulation does not require that the supervisor

present at the mine shall have evidence of current first aid_ training.

There

is no evidence of record concerning the availability of first aid training
to other interested employees.

The citation is vacated.

Citation No. 220484
The evidence establishes that the backup alarm on the front-end loader
of the Underwood Pit was inoperable at the time of inspection.

The operator

had an obstructed view to the rear and no observer was present to signal him.
I find that MSHA has established a violation of 30 C.F.R. § 56.9-87.

The

inspector's testimony that the operator could not have been_expected to know
of this condition prior to the issuance of the citation is rejected for the
reason that the loader operator reported the malfunctioning alarm but New York
failed to provide an observer for the vehicle as required by the regulation.
Citation No. 219993
The evidence establishes that there were 13 exposed idler rollers on
the conveyor belt at the Botsford Pit on the date of the inspection.

1760

Pinch

points were exposed which could be expected to result in physical injury.
New York is chargeable with ordinary negligence since the condition was
obvious and it should have known of the violation.

I find that MSHA has

established a violation of 30 C.F.R. § 56.14-1.
Citation No. 219994
The evidence establishes that there was no berm on the outer bank of
the access road at the Botsford Pit.
11-foot drop.

This was an elevated roadway with an

This condition was obvious and New York should have known of

the existence of the violation.

I find that MSHA has established a violation

of 30 C.F.R. § 56.9-22.
FINDINGS OF FACT
1.

The materials extracted from the Underwood Pit were used on the

highways to control ice in winter and not as "fill" and, therefore, the
Underwood Pit was not "borrow pit" as that term is defined in the MSHA-OSHA
Interagency Agreement.
2.

New York's operation of the Botsford Pit involved "sizing" of the

raw material and, therefore, the operation of the Botsford-Pit was not a
"borrow pit" as that term is defined in the MSHA-OSHA Interagency Agreement.
3.

There is no evidence of record which establishes that, at the Under-

wood Pit, New York failed to train selected supervisors in first aid or failed
to make first aid training available to all interested employees as alleged
in Citation No. 220483.

1761

4. - The backup alarm of the front-end loader operated by New York at
the Underwood PTt was· inoperable at the time the operator of the loader had
an obstructed view to.the rear and no observer was present to signal the
operator as alleged in Citation No. 220484.
5.

Exposed moving idler rollers on the conveyor belt at the Botsford

Pit could be contacted by persons and cause injury and were not guarded as
alleged in Citation No. 219993.
6.

No berm or guard was provided on the outer bank of the elevated

access road at the Botsford Pit as alleged in Citation No. 219994.
CONCLUSIONS OF LAW
1.

An administrative law judge has jurisdiction to determine whether

the Act may be constitutionally applied to the facts.
2.

Mining sand and gravel is not an integral or essential part of

New York's traditional function of road maintenance; therefore, the regulation of such mining by MSHA does not violate the tenth amendment.
3.

The mining of sand and gravel by New York affects commerce and is

subject to MSHA regulation.

4.

New York's operation of the Underwood Pit did not constitute a

"borrow pit" and, hence, is subject to MSHA jurisdiction.

s.

New York's operation of the Botsford Pit did not constitute a

...
,::,:

"borrow pit" and, hence,

1S

subject to MSHA jurisdiction.

1762

6.

The undersigned judge has jurisdiction over the parties and subject
.---

matter of the above proceedings.
7.

New York did not violate 30 c.F.R. § 56.14~1 and Citation No. 220483

is vacated and the proposal for a civil penalty thereon· is dismissed.
8.

New York violated 30 C.F.R. § 56.9-87 by failing to provide a front-

end loader with an audible backup alarm as alleged in Citation No. 220484.
Based upon the statutory criteria for assessing a civil penalty for a violation of a safety standard, New York is assessed a penalty of $50 for this
violation.
9.

New York violated 30 c.F.R. § 56.14-1 by failing to guard exposed

moving machinery as alleged in Citation No. 219993.

Based upon the statutory

criteria for assessing a civil penalty for a violation of a safety standard,
New York is assessed a penalty of $52 for this violation.
10.

New York violated 30 C.F.R. § 56.9-22 by failing to provide a berm

or guard on the outer bank of an elevated road as alleged in Citation
No. 219994.

Based upon the statutory criteria for assessing a civil penalty

for a violation of a safety standard, New York is assessed a penalty of $52
for this violation.
ORDER
WHEREFORE IT IS ORDERED that Citation No. 220483 is VACATED and the
proposal for a civil penalty thereon is DISMISSED.

1763

It is further ORDERED that New York shall pay the Secretary of Labor the
.

-

--

above assessed civil penalties in thr total amount of $154 within 30 days
from the date of this decision.

a

Laurens
Distribution Certified Mail:
Deborah B. Fogarty, Esq., Office of the Solicitor, u.s. Department of
Labor, 1515 Broadway, New York, NY 10036
William s. MacTiernan, Associate Attorney, Legal Services Bureau,
New York State Department of Transportation, Building 5, Room 509,
State Campus, Albany, NY 12232

1764

FEDERAL MfNc SAFETY AND HEALTH REVIE~ ~OMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

3 JUL 1980

... Civil Penalty Proceedings

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

Docket Nos. YORK 79-21-M
WILK 79-102-PM
YORK 80-2-M

Petitioner

v.

NEW YORK DEPARTMENT OF
TRANSPORTATION,

•

Underwood Pit
Botsford Pit

Respondent
ORDER DENYING MOTIONS TO DISMISS
Appearances:

Jonathan Kay, Esq., Anthony C. Ginetto, Esq., and Deborah B.
Fogarty, Esq., Office of the Solicitor, U.S. Department of
Labor, New York, New York, for Petitioner;
William S. MacTiernan, Esq., Legal Services Bureau, New York
State Department of Transportation, Albany, New York, for
Respondent.·

Before:

Judge James A. Laurenson

Procedural History
1be above three cases are civil penalty proceedings arising out of
citations issued by inspectors employed by the Mine Safety and Health Administration (hereinafter MSHA).

MSHA charged the New York Department of

Transportation (hereinafter State) with violations of regulations promulgated under the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(hereinafter the Act), in the operation of sand and gravel pits.

The State

moved to dismiss these actions because it claimed that MSHA and the Federal
Mine Safety and Health Review Commission (hereinafter Commission) lacked
jurisdiction over the State and the pits.

APPENDIX

1765

Issues
1.

Whether the pits in question are under the jurisdiction of MSHA.

2.

Whether the Commission can decide that the Act may be constitutionally

enforced against a state.
3.

Whether enforcing the Act against the State violates the tenth

amendment.
4.

Whether the State's activities are within the coverage of the Act.

Facts
The State contends that the Underwood Pit is an area of land from which
the State extracts and stores sand for highway maintenance.

The usual pro-

cedure is for several men to spend about 8 days a year at the site.

The men

extract material from the bank of the pit and dump it into a hopp~r.

The

material is then transported by a conveyor belt to a Telesmith screening plant
where it is separated by size.

The sand that is separated is stored in piles

until winter when it is used on the highways for snow and ice control.
Botsford Pit involves a similar operation.

The

Gravel is removed from the pit

and a Barber-Green screening plant is used to separate larger from smaller
size stones.

The material is used as fill, shoulder fill, or drainage

backfill.
MSHA Jurisdiction over Pits
Based upon these facts the State has moved to dismiss these actions on
the grounds that MSHA does not have jurisdiction over the Underwood Pit or

APPENDIX

1766

the Botsford Pit.

The motion to dismiss will be considered to be a motion

for summary decision under our rules.

Summary decision shall be granted

"only if the entire record, including the pleadings, depositions, answers
to interrogatories, admissions, and affidavits shows:

(1) that there is no

issue as to any material fact and (2) that the moving party is entitled to
summary decision as a matter of law."

29 C.F.R. § 2700.64(b).

MSHA has authority to administer the Act which applies to all "mines."
A mine is defined in the Act, 30 U.S.C. § 802(h), as "an area of land from
which minerals are extracted in non liquid form."
Botsford Pit meet that definition.
reach of the Act.

The Underwood Pit and the

They are, therefore, mines and within the

Consequently, MSHA would have jurisdiction over them.

However, MSHA has issued a formal interagency agreement to define its jurisdiction vis-a-·1is the Occupational Safety and Health Administration (hereinafter OSHA) in which it has limited its jurisdiction.

Interagency Agreement

between MSHA and OSHA, U.S. Department of Labor, dated March 29, 1979.
44 Fed. Reg. 22827 (April 17, 1979).

That agreement states that "borrow

pits" are subject to OSHA jurisdiction.

A borrow pit is defined as:

[A.Jn area of land where the overburden, consisting of unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction
occurs on a one-time only basis or only intermittently as
need occurs, for use as fill materials by the extracting
party in the form in which it is extracted. No milling is
involved, except for the use of a scalping screen to remove
larger rocks, wood and trash. The material is used by the
extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit. MSHAOSHA Interagency Agreement, para. B(7), 44 Fed. Reg. 2282~
(1979).

APPENDIX
1767

The State-contends that the Underwood Pit and the Botsford Pit come within
the definition of a borrow pit and therefore are not under the jurisdiction
of MSHA.

MSHA argues that the pits do not meet the criteria for a borrow

pit for several reasons and are, therefore, under MSHA jurisdiction.

Each

side has submitted affidavits describing the facts concerning the operation
of the pits.
MSHA contends that the use of a screening plant at the pits constitutes
milling.

The agreement defines a borrow pit as not involving milling.

The

State argues that the screens are scalping screens used to remove large
rocks, wood and trash.

Use of a scalping screen to remov~_debris at a borrow

pit is permitted under the agreement.

Thus, the question is whether the use

of the screen at the pits is milling or scalping.

Milling is defined in the

agreement as "the act of treating the crude crust of the earth to produce
therefrom the primary consumer derivatives.

The essential operation in all

such processes is separation of one or more valuable desired constituents of
the crude from the undesired contaminants with which it is associated."
Milling 1s also defined 1n the agreement as including sizing.

Sizing is

defined as "the process of separating particles of mixed sizes into groups
of particles of all the same size or into groups 1n which particles range
between maximum and minimum size."

The distinction between sizing and the

use of a scalping screen to remove large rocks is not great and requires a
close examination of all relevant facts.
MSHA next contends, with regard to the Underwood Pit, that the pit does
not meet the definition of a borrow pit because the material extracted is
not used as fill, but rather that it is used more for its intrinsic abrasive

APPENDIX

1768

qualities than for its bulk.

"Fill" in this sense is defined as "material

used to fill a cavity or passage."

Dictionary of Mining, Mineral, & Related

Terms, Bureau of }lines, Department of Interior, 1968.
was not used for fill in this usual sense.

It seems that the sand

The State argues that the fact

that the material was not used as fill in the "conventional meaning of the
word" is not crucial because MSHA "has dismissed numerous other citations
with respect to sand extracting operations where sand was to be used for
highway sanding in the winter season on the basis that such operations were
reviewed and found to be borrow pits."

The State's argument is not relevant.

USHA also argues that the pits should be subject to tLSHAjurisdiction

.--

because OSHA would have no jurisdiction over the pits.

Paragraph B(S) of the

interagency agreement lists factors in determining whether a particular
facility is subject to MSHA or OSHA regulation.
ment capability of the agency.
OSHA.

One factor is the enforce-

States are excluded from the jurisdiction of

MSHA argues that it should therefore be deemed to have jurisdiction

over the pits.

This argument is not relevant.

The affidavits of the parties establish that there is an issue as to
whether the State's operation of the pits includes milling which would subject the pits to MSHA jurisdiction or a scalping screen which would preclude
MSHA jurisdiction.

\·fl1ether the screening done at the Underwood Pit and the

Botsford Pit is for sizing or as a scalping screen is a material fact which
is at issue.

Thus, the State has not met its burden of showing that there

is no issue as to any material fact and that it is entitled to summary decision as a matter of law.

The facts, as presented thus far, require a hearing

to make that determination.

APPENDIX

1769

Authority to Determine Constitutional Issue
'lhe State contends that the Act cannot constitutionally be applied to
a state.

MSHA argues that the Commission cannot reach that issue because

neither the Commission nor its administrative law judges has the power or
competence to pass on the constitutionality of the statutes under which they
operate.
In several cases, the Supreme Court has impliedly or without detailed
analysis stated that an.administrative agency cannot entertain constitutional
is~ues.

The question generally arises when the Court is deciding whether to

hear an appeal or to remand a case because a par~y has-not exhausted its
administrative remedies.

Public Utilities Commission v. United States,

355 U.S. 534 (1955), dealt with a state statute which expressly gave a state
commission the right to set rates between private common carriers and the
United States.

The United States contended that the statute was unconsti-

tutional and brought suit in federal court.

The Supreme Court held that the

United States did not first have to raise the issue with the state commission
because "[t]he issue is a constitutional one that the Commission can hardly
be expected to entertain."

Id. at 539.

Justice Harlan concurring in

Oestereich v. Selective Service Board No. 11, 393 U.S. 233 (1968), relied on
Public Utilities Commission v. United States, supra, for the proposition that
"[a]djudication of the constitutionality of congressional enactments has
generally been thought beyond the jurisdiction of administrative agencies."
Oestereich v. Selective Service Board No. 11, supra at 212.

In Oestereich v.

Selective Service Board No. 11, supra, the majority struck down a section of
th~

Selective Service Act which prevented judicial intervention into the

APPENDIX

1770

:~

decisions of draft _boards.

The Court did not directly confront the exhaustion

of administrative remedies issue.

In Johnson v. Robison, 415 U.S. 361 (1974),

the Court was confronted with a similar issue and grounded part of its deci.:..
sion on the fact that the Board of Veterans' Appeal followed the principle
stated by Justice Harlan in Oestereich v. Selective Service Board No. 11,
supra.

Finally, in Weinberger v. Salfi, 422 U.S. 749 at 765 (1975), the

Court stated that "the constitutionality of a statutory requirement [is] a
matter which is beyond [the Secretary's] jurisdiction to determine."

That

case involved a suit brought by an individual in federal court challenging
sections of the Social Security Act.

The Court held that the exhaustion
.. ·

requirements had been met even though there was no final decision by the
Secretary in the usual sense.

The final decision requirement was met by the

Secretary's finding that the only issue was the constitutionality of a statutory requirement.

The issue being beyond his competence, he had decided all

that he had jurisdiction to decide.
These cases provide language which supports MSHA's contention that the
Commission does not have power to decide constitutional issues.

However,

these cases are clearly distinguishable from the present case by the type of
administrative agencies involved and the context in which they arose.

The

most important distinction is that in all four cases, the Court was interpreting the constitutionality of the express-wording of the statute:
whether it was constitutional on its face.

i.~.,

In the present case, no one is

contending that the s~atute is unconstitutional on its face, rather, the
State contends that it is unconstitutional as applied.

APPENDIX
1771

Several recent federal court cases have more closely scrutinized the
power of an administrative agency to decide constitutional questions.

In

these cases, the difference between whether the court was deciding the facial
validity of a statute or the statute's application to facts has been determinative.

In Marshall v. Babcock & Wilcox Company, 1979 OSHD 29,013 (3d

Cir., Nov. 16, 1979),. an employee moved in district court to quash warrants
for OSHA inspections.

The employer argued that it did not have to exhaust

its administrative remedies because it was raising constitutional challenges
to the inspections.

The district court held that the administrative route

must be taken first and that decision was affirmed by the circuit court.
The court stated that Occupational Safety and Health tlieReview Commission
(hereinafter OSHRC) could consider fourth amendment motions to suppress evidence "consonant with its limited role under the Constitution, not by reviewing the constitutionality of its statute but by interpreting the statute and
by applying constitutional principles to specific facts."

Id.

The court

here approved the distinction first set out by Davis in his Treatise on
Administrative Law.

Davis articulated the distinction by stating:

A fundamental distinction must be recognized bet~een
constitutional applicability of legislation to particular
facts and constitutionality of legislation. When a tribunal
passes upon constitutional applicability it is carrying out
the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of
the legislation the question is whether·it shall take
action which runs counter to the legislative intent. We
commit to administrative agencies the power to determine
constitutional applicability, but we do not commit the
administrative agencies the power to determine constitutionality of legislation. 3 K. Davis Administrative Law
Treatise, § 20.04 at 74 (1958).

APPENDIX
1772

The court considered and rejected the reasoning of Weyerhauser Company
v. Marshall, 592 F.2d 373 (7th Cir. 1979), a case which had held that exhaustion was not required when the party was raising a fourth amendment claim
concerning a warrant.

The decision in Weyerhauser Cor.rpany v. Marshall,

suora, was based on the conclusion that the OSHRC would not rule on the issue
of a warrant's validity-and that no factual basis need be developed in determining the warrant's validity.

The court in Marshall v. Babcock & Wilcox

Cocman'l, suora, disagreed and held that OSHRC should first apply the facts
to constitutional principles.
The sane distinction made by the Marshall v. Babcock Wilcox Company,
sunra, court and Davis in his Administrative Law Treatise was approved by the
Fifth Circuit in McGowan v. Marshall, 1979 OSHD 29,044 (5th Cir., Oct. 23,
1979).

That case also involved the issue of exhaustion of administrative

remedies.

The appellant had raised several issues in district court.

The

court of appeals held that the factual issues and a fourth amendment claim
which required a factual finding must first be submitted to the OSHRC,
whereas a frontal attack on the facial const~tutionality of a section of
the statute need not be submitted to the administrative agency because "the
Comr:lission has no power to declare unconstitutional the Act that it is authorized to adrainister."

Citing Oestereich v. Selective Service Board No. 11,

sunra.
In two cases decided by judges of this Cor.imission, a similar distinction
has been made.

In Secretary v. Waukesha Lime and Stone Company, Inc., Docket

No. VI!JC 79-66-PM, June 5, 1979, the respondent contended that a nonconsensual
inspection of its premises without a valid search warrant violated its fourth

APPENDIX
1773

amendment rights.

Therefore, Chief Judge James A. Broderick had to decide

whether section 103(a) of the Act, 30 tJ.s.c. § 813(a), which permits nonconsensual warrantless inspections of mines, was constitutional.

He stated that

as a general rule, "an administrative agency does not have power to rule on
constitutional challenges to the organic statute of the agency," but that "it
is the responsibility of an administrative agency to determine whether a
provision of the statute it administers may constitutionally be applied to
facts found by the agency."

He also stated that construction of the statute

is the duty of the agency and that the statute should be "construed to avoid
conflict with the Constitution."

Judge Charles C. Moore, Jr. in Secretary

v. Probst and Stample, Docket No. MORG 76-28-P, August--3f, 1978, was confronted with the same kind of issue.

In that case, the respondents contended

that section 109(c) of the Federal Coal Mine Health and Safety Act of 1969 on
its face discriminated against employees of corporations in violation of
their constitutional rights.

Judge Moore held that an administrative agency

has no power to "declare a portion of its own organic act unconstitutional."
Judge Moore also stated, however, that the principle that "agencies and their
judges cannot deal with constitutional issues" is "a vast overstatement"
because judges constantly must deal with constitutional issues in conducting
hearings and applying the law.

The Commission heard oral argument in this

case on March 12, 1980, to decide whether the Commission has the authority
to decide whether a provision of the Act is unconstitutional.
I agree with the principle expressed by Davis in his Administrative Law
Treatise and the courts in Marshall v. Babcock Wilcox Company, supra, and
McGowan v. Marshall, supra, that ev.en if the Commission does not have the

APPENDIX
1774

.

jurisdiction to declare a section of the Act facially invalid, it does have
jurisdiction to determine.whether the Act may be constitutionally applied
to the facts.

Because that is the issue present here, I find that I have

jurisdiction to make the determination.
Tenth .Amendment Issue
The State contends that the tenth amendment as interpreted in National
League of Cities v. Usery, 426- U.S. 833 (197.6) prevents MSHA from enforcing
the Act against the State operations involved here.

In National League of

Cities v. Usery, supra., the Supreme Court held that Congress could not
extend the Fair Labor Standards Act to employees of state-governments.

The

Court did not say that such an application of law was beyond the reach of
the commerce clause standing alone, but that under some circumstances,
Congress' exercise of its powers within the scope of the commerce clause may
transgress limitations created by the tenth amendment.

There are "attributes

of sovereignity attaching to every state government which may not be impaired
by Congress."

Id. at 845.

The Court decided that "[one] undoubted attribute

of state sovereignity is the States' power to determine the wages which shall
be paid to those whom they employ in order to carry out their governmental
functions."

Ibid.

The Court posed the issue "whether these determinations

are * * * functions essential to separate and independent existence * * * "
Ibid.

The court determined that enforcing the Fair Labor Standards Act

against the State would "significantly alter or displace the States' abilities to structure employer-employee relationships in * * * activities * * *
typical of those performed by state or local governments" and would therefore

APPENDIX
1775

leave little left of the States'
Id. at 851.

* * * separate and independent exlstence."

The Court held that "insofar as the challenged amendments oper-

ate to directly displace the States' freedom to structure integral operation6
in areas of traditional governmental functions, they are not within the
authority granted Congress" by the commerce clause.

Id. at 852.

Later in

its opinion, the Court formulated its ruling to be that "Congress may not
exercise * * * [the power to regulate commerce]

* * * so as to force directly

upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made."

Id. at 855.

The test then is whether enforcing the Federal Mine
_Sa-fety and Health
--· .Act against the State operation involved here would directly displace the
State's freedom to structure integral operations or essential decisions in
areas of traditional governmental functions.

The State argues that road

maintenance is an area of traditional governmental function and, therefore,
Congress cannot regulate it.

MSHA argues that mining sand or gravel is not

a traditional governmental function and, therefore, Congress can regulate it.
The issue is not as simple as either contends; the issue is whether mining
sand or gravel for use in maintaining roads is an integral operation in an
area of traditional governmental function.
In National League of Cities v. Usery, supra, the Court upheld the holding of two earlier cases, United States v. California, 279 U.S. 182 (1936),
and Parden v. Terminal Railroad Company, 377 U.S. 184 (1964), even though it
overruled the reasoning in those cases.

Those two cases involved state rail-

roads that were operated in conjunction with state-owned and operated docks.
In its opinion, the court did not discuss the fact that the railroads were

APPENDIX

1776

operated in conjunction with state docks (arguably a .state function) but just
view·ed them as "engage°d- in 'common carriage by rail in interstate commerce
***,'"and held that they could be regulated.

National League of Cities v.

Usery, supra at 854.
A number of federal district and circuit courts cases have addressed
this issue with disparate results:

In Jordan v. Mills, 473 F. Supp. 13

(E.D. La. 1979) the court held that a state-run prison store was not subject

to the federal antitrust statutes bec~use of the tenth amendment.

The court

found that running a prison was a fundamental State function and that a
store was an integral part of running a prison.

The court reasoned that one

had to determine if the activity itself was a traditional governmental function or if it was "integrally operative to such a function." In Friends of
the E.:lrth v. Carey, 552 F.2d 25 (2d Cir. 1977), cert. denied, 434 U.S. 902
(1977), the court held that an EPA order that the city comply with an antipollution plan with regard to traffic control was not violative of the tenth
amendment.

Yne court reasoned that the program was not a substantial inter-

ference with an integral governmental program or service.

The court also

stated that traffic plans, at least near New York City, were not areas of
exclusive State control but cooperative. ventures between l~cal, state, and
federal governments.

The court in California v. Blumenthal, 457 F. Supp.

1309 (E.D. Cal. 1978), held that a statute which required states to file
forms concerning employees for ERISA did not violate the tenth amendment.
The court stated that 11 [t]he instant case is a far cry from one involving
'fundamental employment decisions upon which [the States'] systems for performance of [their governmental] functions must rest'."

APPENDIX
1777

The court in

Amersback v. City of Cleveland, 598 F.2d 1033 (6th Cir. 1979), held that
employees of the-munfoipal-airport came under the ruling in National League
of Cities v. Usery, supra, because the operation of a municipal airport is
an integral government function.

The court noted certain elements that

define which government functions are protected:
(1) the government service or activity benefits the community as a whole and is available to the public at little or
no direct expense; (2) the service or activity is undertaken
for the purpose of public service rather than for pecuniary
gain; (3) government is the principal provider of the service or activity; and (4) government is particularly suited
to provide the service or perform the activity because of a
communitywide need for the service or activity. Id. at 1037.
In Public Service Company v. Federal Energy Regulatory Board, 587 F.2d 716
(5th Cir. 1979), cert. denied, 100 S. Ct. 166 (1979), the court had to decide
whether federal regulation of state-owned gas which was used to support the
public schools violated the tenth amendment under National League of Cities
v. Usery, supra.

The court held that the federal regulations would not

directly displace a traditional state governmental

~1nction

because the

indirect effect on education "comes nowhere near constituting a Federal
usurpation of state control over public education in Texas."

Finally, in

State Department of Transportation v. United States, 430.F. Supp. 823 (N.D.
Ga. 1976), the court held that a federal tax on a state airplane used for
state business violated the tenth amendment under National League of Cities

v. Usery, supra.
To decide whether a state activity is protected from federal regulation
by the tenth amendment, it is necessary to determine whether the activity to

APPENDIX
1778

be regulated is itself a traditional governmental function (using the
crit~ria

expressed in Amersback v. City of Cleveland, supra), or, if is not

a traditional governmental function, whether it is an integral or essential
part of a traditional governmental function.
I find that mining sand and gravel is not a traditional governmental
function; maintaining roads is such a function.
Earth v. Carey, supra).

(But cf., Friends of the

Comparing the facts in this case with the federal

decisions, mining is not an integral or essential part of the State function.
MSHA regulation of the State's mining is "nowhere near usurpation of state
control" over road maintenance.

See Public Service Company v. Federal

Energy Regulatory Board, supra.

The instant case is a "far cry from one

involving 'fundamental employment decisions upon which [the States'] systems
for performance of [their governmental] functions must rest."'
Blumenthal, supra.

California v.

The facts of the instant cases are most analagous to

United States v. California, supra, and Parden v. Terminal Railroad Company,
supra.

Like the operation of docks, maintaining roads is a traditional state

function; like operating a railroad, operating sand and gravel pits is not
a traditional state function.

The Court in National League of Cities v.

Usery, supra, held that the railroads in United States v. California, supra
and Parden v. Terminal Railroad Company, supra could be regulated, even
though they were operated to facilitate an arguably traditional state function.

Similarly, sand and gravel pits may be regulated even if operated to

facilitate a traditional state function.

Because mining and gravel is not

an integral or essential part of the State's traditional function of road
maintenance, it is not protected from federal regulation by the tenth

APPENDIX

1779

t:ommerce- Clause
Lastly, the State contends that MSHA's jurisdiction does not extend to
the subject operation "because the products thereof did not enter commerce
nor did the operation or products thereof affect commerce."
the Act provides:
commerce,

Section 4 of

"Each coal or other mine, the products of which enter

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."

30 U.S.C. § 803.

The State argues that because

the sand and gravel was used by the State and not sold, it did not enter
commerce and because it did not enter commerce it did not affect commerce.
The State relies on Morton v. Bloom, 373 F. Supp. 797 (W.D. Pa. 1973).
That case involved a one-man Pennsylvania coal mine, the coal from which
was sold only in Pennsylvania.

The court held in Morton v. Bloom, supra,

that the mine was not subject to the Act.

The cour~ reasoned that Congress

did not intend to subjugate a one-man owner-operated mine to the requirements of the Act because it was not necessary to do so to insure the purpose
of the Act:

the safety of the miner.

The court further held that the mine

did not affect commerce because the operator did not substantially interfere
with the regulation of interstate commerce.
However, the meaning of "affect commerce" is broader than the State's
contention or the reasoning in Morton v. Bloom, supra.

In enacting the mine

safety statutes, Congress intended to exercise its authority to regulate
interstate commerce to "the maximum extent feasible through legislation."
Secretary v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976), quoting S. Rep.

APPENDIX

1780

~o.

lU55, 89th Cong., 2d Sess. 1 (1966), U.S. Code Congressional and Adminis-

trative News, 89th Cong., 2d Sess. 2072.

The Supreme Court stated in Fry v.

United States, 421 U.S. 542 at 547 (1974):
Even. 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. See Heart of
Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 255, 13 L.Ed.2d
258, 85 S. Ct. 348 (1964); Wickard v. Filburn, 317 U.S. 111,
127-128, 87 L.Ed.2d 122, 63 S. Ct. 82 (1942).
In Wickard v. Filburn, supra, the Court held that wheat grown by an
individual solely for his own consumption was subject to federal regulation
because it supplied the needs of the individual which otherwise would
have to be met in the open market.

In Marshall v. Kilgore, 478 F. Supp 4

(E.D. Tenn. 1979), the court relied on Wickard v. Filburn, supra, in finding that coal which was sold intrastate still affected connnerce.

The court

therefore held that the mine which produced the coal was under the coverage
of the Act.

See also Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978).

Applying the rationale of these cases to the facts presented here, the
State's operations affect commerce because if the State did not operate the
pits, it would have to obtain its sand and gravel in the open market.

In

its brief in regard to the Botsford Pit, the state concedes that it seeks
the most inexpensive source for its gravel (Brief at 6), implying that if
it did not operate the pit, it would acquire the gravel elsewhere.

Since

the State's operations affect commerce, they are subject to coverage by the
Act.

APPENDIX
1781

¥indin~s

1.

and Conclusions
The State has not established that the Underwood Pit and the Botsford

Pit are borrow pits within the definition of that term. in the Interagency
Agreement between MSHA and OSHA.
2.

That issue must be resolved after a hearing.

An administrative law judge has jurisdiction to determine whether

the Act may be constitutionally applied to the facts.
3.

Mining sand and gravel is not an integral or essential part of the

State's traditional function of road maintenance; therefore, the regulation
of such ~ining by MSHA does not violate the tenth amendment.

4.

The mining of sand and gravel by the State affects commerce and is

subject to MSHA regulation.
ORDER
THEREFORE, IT IS ORDERED that respondent's motions to dismiss are
DENIED.

Issued:

March 21, 1980

Distribution:

Jjm'·s A. Laurenson, Judge

~

·-

l.

Jonathan Kay, Esq., U.S. Department of Labor, 1515 Broadway, New York,
NY 10036 (Certified Mail)
Anthony C. Ginetto, Esq., U.S. Department of Labor, 1515 Broadway,
New York, NY 10036 (Certified Mail)
Deborah B. Fogarty, Esq., U.S. Department of Labor, 1515 Broadway,
New York, NY 10036 (Certified Mail)
William S. MacTiernan, Associate Attorney, Legal Services Bureau,
New York State Department of Transportation, Building 5, Room 509,
State Campus, Albany, NY 12232 (Certified Mail)
APPENDIX
1782

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

3 JUL 19AO
OLD BEN COAL COMPANY,
Applicant

Application for Review
Docket No. VINC 75-313

v.
Mine No. 21
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
(formerly mining enforcement
and safety administration),
Respondent
DECISION
Before:

Chief Administrative Law Judge Broderick

STATEUENT OF THE CASE
This proceeding was one of four similar proceedings in which
the parties waived their rights to an evidentiary hearing and submitted the cases for decision on the basis of the pleadings. The
Application was limited by applicant's "partial withdrawal of
issues" filed May 20, 1976, to its contention that "the underlying
notice of violation and order of withdrawal issued pursuant to
section 104(c)(l) of the Act were unlawfully issued and thus provide
no basis for the issuance of the subject order of withdrawal * * *·"
Because the underlying notice and withdrawal_ orde~s were
challenged in a proceeding then pending before the Board of Mine
Operations Appeals (which came before the Commission under section 301 of the Federal Mine Safety and Health Amendments Act),
the case was continued by order of July 25, 1977.
COMMISSION DECISION
On June 2, 1980, the Commission issued its decision which upheld
my decision of July 16, 1975, and affirmed the challenged withdrawal
orders, including Order of Withdrawal No. 1 MK issued October 21,
1974, which is the order "underlying" the withdrawal order under
review herein.

1783

_Based upon the Commission decision, I conclude that the underlying notice and order were validly issued. Therefore, the order
reviewed herein;-being-Order No. 1 LDC, December 27, 1974, was
validly issued, and must be affirmed.
ORDER
It is ordered that Order of Withdrawal No. 1 LDC, December 27,
1974, is AFFIRMED, and the application for review is DISMISSED.
~-=

c

;

_,..,

--,

1

I)

Y.

d/v··~ -~

.' /v!B rv dz/~ ~d

James A. Broderick
Chief Administrative Law Judge

Distribution:
Edmund J. Moriarty, Esq., Old Ben Coal Company, 125 So. Wacker
Dr., Chicago, IL 60606 (Certified Mail)
Michael V. Durkin, Esq., Trial Attorney, Office of the Solicitor
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Hail)
Assistant Administration, MSHA, U.S. Department of Labor, 4015
Wilson Blvd., Arlington, VA 22203 (Certified Mail)

1784

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

8 JUL 1980
)
)
)
)
)
)

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

)
)
)
)
)
)

v.
THE ANACONDA COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO.

WEST 79-128-M

MSHA Case No. 24-00689-05003
Mine:

Weed Concentrator

)
)
)

ERRATA SHEET
The following error should be corrected in the Decision issued June
13, 1980.

On page 3, line 11 the amount of the proposed settlement should

be $662 rather than $661.

Distribution:
--

Office of the Solicitor, United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, Attention: Ann M.
Noble, Esq.
Anaconda Copper Company, P.O. Box 689, Butte, Montana 59701, Attention:
Edward F. Bartlett, Esq. and Karla M. Gray, Esq.

1785

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE

8

DENVER'SOJ-BrA~g ao204

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

SECRETARY OF LABOR,
Mi.NE SAFETY AND
HEALTH ADMINISTRATION
(MSHA),
Petitioner,
v.
CLINCHFIELD COAL COMPANY,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. NORT 78-395-P
A/O NO.
Mine:

44-04251-02011 I
McClure No. 1

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

DECISION
Appearances:
Michael C. Bolden, Esq., Office of the Solicitor, United
States Depirtment of Labor,
for the Petitioner,
Gary W. Callahan, Esq., Clinchfield Coal Company,
Lebanon, Virginia 24266
for the Respondent.
Before:

Judge Virgil E. Vail

Procedural History
On July 27, 1978, the Mine Safety and Health Administration filed a
petition for assessment of a civil penalty in the above-captioned proceeding
pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a).

The petition alleges a violation of provisions of

the Code of Federal Regulations as set forth in a notice of violation issued
pursuant to section 104(c)(l) of the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801.

1786

The above case was originally assigned to Judge William Fauver in
conjunction with several.other civil penalty proceedings involving the same
Respondent.

By Notice of Hearing issued October 15, 1979, this case was

scheduled to be heard at Abington, Virginia, on November 27, 1979.

On

October 19, 1979, Respondent moved to change the \'tearing site from Abington,
Virginia to Arlington,. Virginia, and because of a conflict in the hearing
schedule of Respondent's counsel, to continue the hearing date to either
January 15, 1980, or February 5, 1980.

Petitioner did not object and on

Octobe.r 31, 1979, Judge Fauver granted the mot ion and issued an Order
setting the hearing for February 5, 1980, at Arlington, Virginia.
On February 1, 1980, Petitioner filed a motion to continue the hearing
to April 1, 1980, and to change the hearing site back to Abington, Virginia.
As grounds for the motion Petitioner stated that, the issuing inspector and
the Secretary's key witness, Mr. James A. Baker, was no longer an employee
of the Mine Safety and Health Administration and that after numerous
attempts, the· Secretary was unable to secure Mr. Baker's presence at the
prescribed hearing due to his busy business schedule, the great distance
involved, and a lack of .subpoena authority beyond 100 miles.

Judge Fauver

in his Order stated that the Petitioner was in error as to the 100 mile
limit on the subpoena power of the Commission and that there was no mileage
or geographical limitation thereon.

Judge Fauver further stated that the

Petitioner had known of the February 5, 1980, hearing date and site for many
months and denied the motion.

Petitioner was allowed an additional day to

subpoena Mr. Baker and the hearing was set for February 6, 1980.

1787

A review of a partial transcript of the hearing on February 6,
1980; reveals tliat ·gr~ Baker was unable to attend the hearing due to adverse
weather conditions and requested that he be relieved from honoring the
subpoena.

This request was granted by Judge Fauver.

The Respondent's

counsel took exception to granting a continuance in this case stating that
their witnesses had .come to the hearing from New Mexico and Colorado, and
the attorney from Abington, Virginia.

Further, Respondent requested that if

a continuance was granted, that the hearing be h~ld in Denver, Colorado, and
that expenses and costs be assessed against the Government for travel and
expenses for Respondent's counsel and witnesses.
A review of the record shows a letter was mailed·o;·February 13, 1980,
by Respondent's counsel, Gary W. Callahan, to Petitioner's counsel, Mike
Bolden, which states as follows:
"This letter is to confirm our conversation of Monday,
February 11, 1980, at which time we tentatively agreed
to have the trial in 78-395-P in Denver, Colorado, on
May 7, 1980. I am sending a copy of this letter to
Judge.Fauver and, of course, will wait his approval."
On February 13, 1980, Respondent filed a Motion to Dismiss the above
case asserting that the Government had failed to make a reasonable or
diligent effort to have their witness at the hearing; that the Respondent
had been prepared for the hearing and had brought their two witnesses from
New Mexico and Colorado for the hearing and that to continue the case would
make the Respondent's decision to.continue to resist the assessed penalty a
questionable economic decision.

1788

Judge Fauver, having considered Respondent's letter of February 13'
-·

-

--

1980, requesting a re location of the hearing site to Denver, Colorado, and
motion to dismiss filed February 19, 1980, issued an Order on February 20,
1980, denying the motion to dismiss and setting the hearing for May 7, 1980,
in Denver, Colorado.

Subsequently, the case was reassigned to the

undersigned for further proceedings.
A Notice of Hearing was issued, by the undersigned, on March 3, 1980,
setting the hearing for May 7, 1980, at 9:00 a.m. in Denver, Colorado.
On March 20, 1980, the Respondent filed a motion to assess costs with
the undersigned restating the history of the case as outlined herein above.
Said motion was opposed by the Petitioner by motion dated April l, 1980.
The undersigned,

i~sued

an Ord~r dated April 8, 1980, denying the

Respondent's motion to assess costs by reason of Judge Fauver's prior Order
dated February 20, 1980, wherein he denied Respondent's previous motion to
dismiss and granted the request for a change in the hearing site to Denver,
Colorado, and implicit therein, denied Respondent's prior request for
assessment of costs and expenses.

A subsequent motion to dismiss dated

April 7, 1980, was denied by the undersigned in an Order dated April 21,
1980, wherein said motion to dismiss dated April 7, 1980, was con.sidered to
be identical to the prior motion considered and denied by Judge Fauver.
On April 29, 1980, Petitioner requested and was sent a subpoena
requiring Mr. James A. Baker to appear at the hearing in Denver, Colorado on
May 7, 1980 at 9:00 a.m.

1789

The _hearing convened on May 7, 1980, at 8:50 a.m. in Denver,
Colorado, with M-ichae-l- C--; -Bolden appearing as counsel for the Petitioner and
Gary W. Callahan appearing as counsel for the Respondent.

At the

commencement of the hearing, Mr. Bolden explained that Mr. Baker, the
Government's witness, refused to come to the hearing and that without his
testimony, the Government was unable to establish a prima facie case and
Petitioner requested a continuance of the case.
Respondent then moved again that the case be dismissed and said motion
was granted in a decision from the bench as follows:
"JUDGE VAIL: I see no justification for continuing to subject
the Respondent in this case to additional expenses, and I am
going to grant your motion to dismiss the citat-ion and the
assessment of a penalty against the Clinchfield Coal Company.
The basis for this is that I feel that the Petitioner should
have secured a subpoena earlier and had it served on Mr. Baker,
and then of course if he had failed to appear at this hearing,
there is a proceeding for enforcing the compliance, but I feel
that's the least that the Government should have done in this
case; that with the history of Mr. Baker's uncooperativeness in the last instance, we could have foreseen, or the
Government could have foreseen, additional problems. in having
him appear here, and I feel that based on the fact that proper procedures were not followed in either securing his deposition or in serving him with an official subpoena in order to
at least have him in violation of that, is failure on the
part of the Government to take whatever basic necessary steps
would have been necessary to prove their case. I think that
there's merit to the argument of the Attorney for the Respondent
that they have been prepared both in Virginia at the original
hearing and again at the time of the continuation -for the
subsequent hearing date set, and now here, they are prepared
to proceed with their case, and having these expenses, and
I feel that my dismissing this penalty is only proper in the
sense."
The bench decision is hereby affirmed.

1790

It is hereby Ordered that as set forth herein, the bench decision
granting Respondent's motion to dismiss Docket Number NORT 78-395-P is
affirmed and Citation Control Number 44-04251-02011 I is vacated.

Admini'.itrative Law Judge
Distribution:
Michael C. Bolden, Esq., Office of the Solicitor, United States Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, Virginia 22203
Gary W. Callahan, Esq., Clinchfield Coal Company, Lebanon, Virginia 24266

1791

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

(703j 756-6210/11112

8 JUL 19BO
Civil Penalty Proceeding

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

Docket No. LAKE 80-83-M
A.O. No. 11-01176-05002

v.

Barry Plant No. 8 Dredge Mill

MISSOURI GRAVEL COMPANY,
Respondent
DECISION AND ORDER
Respondent having failed to contest my tentative finding t~at there
is no genuine dispute as to any of the facts material to the five failure
to guard violations cited, 30 C.F.R. 56.14-1, I conclude an evidentiary
hearing is unnecessary to resolve the matters in contest.
As Professor Gellhorn has noted:
A hearing to take evidence as is done in a trial at law
is an obviously silly waste of time if facts are not in
dispute • • • The courts • • • enter summary judgments
when the factual allegations of a party have not been
materially controverted by his opponent. Trial hearings
may permissibly be omitted in administrative proceedings at
least as readily as in their judicial counterparts, -when the
only things to be determined are the legal consequences of
uncontested facts. See. e.g., Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609 (1973); Baxter v. Davis, 450
F.2d 459 (1st Cir. 1971), cert. denied 405 U.S. 999 (1972);
Citizens for Allegan County;:fnc. v. Federal Power Commission,
414 F.2d 1125 (D.C. Cir. 1969); Compare Fuentes v. Shevin,
407 U.S. 67, 87 (1972); Kirby v. Shaw, 358 F.2d 446 (9th Cir.
1966).
In Recommendation No. 20, the Administrative Conference of the
United States proposed that "each agency having a substantial
caseload of formal adjudications • • • adopt procedures providing
for summary judgment or decision" in order to avoid delays in

1792

the administrative process "by eliminating unnecessary evidentiary
hearings where ·-no genui-ne--issue of material facts exists."
1 Recommendations and Reports of the Administrative Conference
of the United States 36 (1968-1970). For discussion consult
E. Gellhorn and w.· F. Robinson, Jr., Summary Judgment in
Administrative Adjudication, 84 Harv. L. Rev. 612 (1971). The
authors state at pages 616-617: 'Just as summary judgment is not
in conflict with the right to trial by jury because.it is available
only when there is nothing for the jury to decide, (No one is
entitled in a civil case to trial by jury unless and except so
far as there are is·sues of fact to be determined. Ex parte
Peterson, 253 U.S. 300, 310 (1920) (Brandeis, J)), a rule allowing
summary decision in administrative adjudications would not
improperly deny the right to a hearing since it would
allow the hearing examiner or agency to dispense with an evidentiary
hearing only if the absence of hearing could not affect the decision."
Gellhorn and Byse, Cases and Materials on Administrative Law (6th Ed.)
at 584.
Apparently accepting this, petitioner claims only that the physical
conditions described in its pretrial submissions, including the detailed
sketches and photographs of the areas involved, establish "as a matter
of law" that the violations charged occurred, even though the exposure
to injury was "sporadic and infrequent." It is claimed that any
conceivable exposure is per se a violation of the standard. I do not
agree. My assessment of the undisputed physical facts is that each of
the five conditions cited is by reason of its physical location and/or
existing guarding incapable of causing injury to any employee acting in a
normally prudent manner. In other words, I conclude the undisputed facts
show each of the locations cited is so inaccessible it is highly
improbable that in the course of his work duties any normally prudent
employee is likely to come into contact with these moving machinery parts.
See, Massey Sand and Rock Co., .DENV 78-567-PM, 1 FMSHRC 545, 556 (June 18, 1979)
petition for discretionary review denied (July 27, 1979); Central Pre-Mix
Concrete Co., DENV 79-220-PM, 1 FMSHRC 1424, 1430-1431 (September 26, 1979);
FMC Corporation, WEST 79-168-M, 2 FMSHRC ~~' (June 3, 1980) (Slip Op. at 6).
As my tentative decision indicates, I do not construe the standard to
require guarding against all possible contingencies, including acts of
thoughtlessness and foolhardiness.
Accordingly, it is ORDERED that the tentative decision of May 21, 1980,
as supplemented herein, be, and hereby is, ADOPTED AND CONFIRMED as the
final decision in this matter and the captioned proposal for penalty be,
and hereby is, DISMISSED.

1793

Distribution:
Miguel Carmona, Esq., U.S. Department of Labor, Office of the Solicitor,
230 South Dearborn St_. , Chicago, IL 60604 (Certified Mail)
Stephen A. Gorman, Esq., Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd.
8500 S. Sears Tower, 2300 S. Wacker Dr., Chicago, IL 60606 (Certified
Mail)

-

1794

---·

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

(703) 756-6210/11 /12

1 1 JUL 1980
Civil Penalty Proceeding

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

Docket No. LAKE 80-77
A.O. No. 11-00598-03036 V

v.

Eagle No. 2 Mine

PEABODY COAL C01:1PANY,
Respondent
DECISION AND ORDER
By its decision of May 16, 1980, the Commission vacated
the trial judge's interlocutory decision of March 5, 1980,
proposing assessment of a penalty of $1000 in settlement of
this matter. The ground for the Commission's action was
its finding that there was a dispute as to (1) whether the
condition cited, namely an accumulation of loose coal and
coal dust that ranged in depth from 4 to 20 inches and extended
for a distance of 900 feet along the east side of the 3 South
conveyor belt, was as a matter of law, an "accumulation"
within the meaning of the Commission's decision in Old Ben
Coal Co., VINC 74-11, 1 FMSHRC 1954 (December 12, 1979); and
(2) the failure of the judge to afford Peabody the opportunity
to "admit or deny" that "the depths of the spillage were
those alleged in the withdrawal order." Peabody Coal Co.,
LAKE 80-25 et al., 2 FMSHRC 1035, 1036 (May 16, 1980).
Ignoring the fact that the first groupd for its position
presented only a question of law disposed of by its holding
in Old Ben, namely that a spillage of loose coal and coal dust
ranging in depth from 2 to 14 inches for a distance of 925 feet
was, as a matter of law, an accumulation prohibited by 30
C.F.R. 75.400, and second that neither in its answer nor
in its response to the trial judge's pretrial order had
Peabody ever suggested that one of its grounds for contest
was the depth of the accumulation charged in the withdrawal
order, the Commission remanded the matter for a full scale
evidentiary hearing on the issue of the "depth of the spillage."
2 FMSHRC at 1037.

1795

In due course, the matter came on for an evidentiary
hearing on June 24 and 25 in the U.S. Courthouse in Washington, D.C.
As the record o'f- that-hearing shows, there was, in fact, no
genuine dispute regarding the depth of the spillage observed
and measured.by the Inspector who issued the withdrawal
order on May 3, 1979. l/ It was also shown that the operator's
claim that the condition was not, as a matter of law, an
accumulation within the meanin? of the standard had been
laid to rest by the Conunission s decision of June 12, 1980
in C.C.C. Pompe~ Coal Co., PIKE 79-125-P, 2 FMSHRC
,
which merely reiterated its interpretation of the standard
as set forth in December, 1979, in Old Ben.
Despite this, and over the objection of counsel for the
Secretary that a full scale evidentiary hearing on the question
of liability would be a "frivolous" waste of time, the trial
judge deferred to the Conunission's view that "unless a case
is settled or the respondent defaults, an administrative law
judge must afford the parties an opportunity for a [testamentary]
hearing" with respect to any issue of fact material to proof
of the violation not expressly "admitted" by th~- _operator.
2 FMSHRC at 1036. While this is obviously an incorrect standard
for determining when an evidentiary hearing must be held, the
Conunission and its staff, abetted by the Department of Labor,
has long encouraged the view that regardless of the amount
of the penalty, the expense to the parties involved, or the
nonexistance of a genuine dispute over material adjudicative
facts, the parties, or either of them, are entitled to demand
as a matter of right a full blown trial-type hearing. ~/
The view that a general denial like a plea of "Not Guilty"
·in a criminal case triggers an absolute requirement ·for a
testamentary hearing absent settlement or default ignores
the fact that neither the Mine Safety Law, the APA, the
Constitution, nor the Conunission's own procedural rules

1/ The record shows that after the Conunission's decision,
Peabody felt compelled to make a pro forma challenge to the depth
of the accumulation alleged but admitted it had no evidence
to rebut the Inspector's measurements.
2/

See Appendix.

1796

mandates such a result. 3/ Rule 28 of the Connnission's Rules
of Practice re.quires -the-operator to include in its answer
"a short and plain statement of the reasons why each of the
violations cited . . . is contested." Because the operator
ignored this requirement, the pretrial order required:

3/ The suggestion that a general denial in a civil penalty
proceeding, like a plea of not guilty in a criminal case,
triggers the protections and restrictions available in
criminal prosecutions is wholly inapposite to complaints
for enforcement of civil penalties. The Connnission's rules
of practice clearly provide for pretrial discovery against
an operator either at the instance of the solicitor or the
trial judge. In addition, section 113(e) of the 1977 Mine
Health and Safety Act empowers the law judge to "compel the
attendance and testimony of witnesses and the production of
books, papers, documents, or objects, and to order testimony
to be taken." There is nothing in the Act or its legislative
history to support the view that because Congress made the
same conduct subject to both criminal and civil sanctions
it intended to extend to the assessment of civil penalties
the procedural protections and restrictions available in
criminal prosecutions under the Fourth, Fifth and Sixth
Amendments. United States v. Ward,
U.S.
, No. 74-394,
slip op., pp. 5-8, (June 27, 1'9"BTI). ~protection against
compulsory self-incrimination, of course, does not extend
to corporations and there is, therefore, no reason why such
respondents may not be compelled to produce for use in civil
penalty cases documentary and/or testamentary evidence as
to their compliance or noncompliance with the mandatory health
and safety standards. Furthermore, in Ward, sutra, the
Supreme Court held that even an individUarmaye compelled
to report a water pollution violation to support a civil
penalty assessment where the statute grants him use immunity
for such report. Finally, in Ward the Court cited with
approval its earlier holding tnatin the absence-of a
genuine dispute as to the material facts the granting of a
directed verdict or summary judgment is wholly proper in
a proceeding to enforce a civil penalty. Hepner v. United
?tates, 213 U.S. 103, 112 (1909).

1797

A plain and concise statement by the operator
in accordance with 29 CFR 2700.28 of the reasons
it conte-s-ts-eaCh-violation and/or the amount of
the penalty. This must include a detailed statement
of the specific facts, conditions and practices
and theories of law upon which the contest of
each violation and/or penalty is based.
In response, the operator stated:
1. Respondent will present evidence at the hearing
that will show that the condition or practice cited in
the Order of Withdrawal occurred sometime shortly
before the Order of Withdrawal was written. Specifically,
the preshift examiner, Mr. Terry Gwaltney, will testify
that he preshifted the area in question within a few
hours of the issuance of the Order of Withdrawal and
that he found no accumulation or spillage at
that time. Consequently it is respondent's
contention that what was found by the inspector
must have been a spill that occurred sqmetinie
immediately prior to his issuing the Order of Withdrawal . . . Consequently, it will be Respondent's
contention that a spillage, the type of which the
Commission alluded to in Secretary of Labor, Old
Ben Coal Company, December 1979, Vol. I, No. 9,
1954, as being " . . . inevitable in mining
operations", occurred sometime just prior to
issuance of the Order of Withdrawal and, therefore,.
did not constitute an accumulation under the criteria
set forth in 30 C.F.R. 75.400. ID at 1958.
2. The payment of a maximum penalty for this violation
will not impair Respondent's ability to continue in
business.
The trial judge submits that any fair reading of this response
shows the operator was not contes.ting the extent or depth of
the spillage alleged but only whether, as a matter of law, it
constituted an accumulation prohibited by 30 C.F.R. 75.400.
In the absence of a showing that a genuine dispute
as to a material adjudicative fact exists, neither
constitutional nor administrative due process requires a
contested enforcement proceeding be resolved only after the
parties are afforded a trial-type hearing. It simply is not
true that valid adjudicative actions can be taken only after
providing an opportunity to cross-examine witnesses. As the
Supreme Court has noted: "No one is entitled in a civil case

1798

to trial by jury unless and except so far as there are issues
of fact to be de_teJ;.minecL-" Matter Of Walter Peterson, 253
U.S. 300, 310 (1920) (Brandeis, J).

•'.:

Due process, therefore, never requires a trial on nonfactual issues, such as whether a particular spillage, the
extent and depth of which is not in dispute, constitutes as
a matter of law an accumulation within the meaning of 30 C.F.R.
75.400. What is needed on such issues is argument, written
or oral, not evidence, and certainly not a trial-type hearing.
Davis, Administrative Law Treatise§ 10.9 (2nd Ed. 1979).
The law clearly is, at a most elementary level, that
because a trial is a process for taking evidence, subject
to cross examination, and because taking evidence in a trialtype hearing is a waste of scarce and expensive resources
except where needed to resolve genuine issues of material fact
it should be used sparingly and solely for the purpose of
resolving such disputes, and never as a matter of right for
the resolution of issues of law, policy or discretion. ~/

~/

4/ As the record shows, counsel for respondent recently
estimated that the cost to P.eabody of an evidentiary hearing is
$1500. When a like amount is added for the cost to the
Department of Labor and the Commission it is apparent that
the cost of unnecessary evidentiary hearings can become
very large. As Judge Irving R. Kaufman of the U.S. Court
of Appeals for the Second Circuit recently stated, "the
judicial system is the most expensive machine ever invented
for finding out what happened and what to do about it."
Time Magazine, May 5, 1980. While financial cost alone is
not of controlling weight in determining whether due process
requires a particular procedural safeguard prior to an
administrative decision, the public interest in conserving
scarce fiscal and administrative resources is a factor that
must be weighed. Matthews v. Eldridge, 424 U.S. 3l0, 348 (1976).
~/

In Co-0~ MininB Company, DENV 75-207-P, 2 FMSHRC 784,
785 (Aprill, 198 ), the Commission emphasized the predictive,
discretionary nature of a judge's determination of the amount
of the penalty warranted. See also, Peabody Coal Company,
BARB 76-117, July 1, 1980, 2 FMSHRC
. This is in
accord with the traditional view thattne assessment of a
penalty is an "exercise of a discretionary grant of power"
not a finding of fact. Brennan v. OSHRC, 487 F.2d 438, 442
(8th Cir. 1973); Diver, The Assessment and Mitigation of
Civil Mone Penalties b Federal Administrative A encies,
7 : Colum ia Law Review
7 Decem er
7
T us,
(continued on next page)

1799

Neither constitutional nor administrative due process
mandate a conf:t:._ont;a_tional hearing before a penalty may
be assessed. Section 7(c) of the APA, 5 U.S.C. § 556(d),
requires confrontational hearings only to the extent that
"cross-examination may be required for a full and true
disclosure of the facts." If there is no dispute of
fact or issue of credibility, there is obviously no need
for a full scale trial-type hearing. 6/ In addition,
section 7(c) further provides that "In . . . determining
claims for money . . . an agency may . . . , when a party will
not be prejudiced thereby, adopt procedures for the submission
of all or part of the evidence in written form." Frozen Foods
Express, Inc. v. United States, 346 F.Supp.· 254, 260-261.
(W.D. Tex. 1972) (no absolute right to an oral hearing under
section 7(c)). Whether cross-examination is required in an
administrative hearing depends on the circumstances presented
in each individual case and initially rests in the sound
discretion of the trial judge. Attorney General's Manual
on the Administrative Procedure Act, p. 78 (1947); Loesch v.
F.T.C., 257 F.2d 882, 885 (4th Cir.), cert. denied. 358
U.S. 883 (1958); Delaware River Port Authority··v. Tiemann,
403 F.Supp. 1117, 1142 (D.N.J. 1975).
As the Second Circuit recently held, a judgment on the
merits does not require a determination of the controversy
after a full-scale trial-type hearing:

(Footnote 5 cont.)
where there is no dispute about the fact of violation or the
six statutory criteria relevant to the determination of a
penalty the Commission should not compel a full-blown
evidentiary hearing solely on the issue of the amount of the
penalty. The amount assessed is, of course, subject to
review on appeal on a claim of inadequacy or excessiveness.
Compare, Knox County Stone Company, DENV 79-359-PM (July 23, 1979)
appeal pending.
~/

In a variety of situations where due process requirements
are involved, something less than an evidentiary hearing
can satisfy the right to be heard. Matthews v. Eldridge,
supra, 424 U.S. at 343.

1800

.·.

The proverbial "right to a day in court" does not
mean the actual presentation of the case in the context of a-forma.r, -evidentiary hearing, but rather
the right to be duly cited to appear and to be
afforded the opportunity to be heard.
Mitchell v. National Broadcasting Co., 553 F.2d 265, 271 (2d
Cir. 1977).
As Professor Gellhorn has noted:
A hearing to take evidence as is done in a trial at law
is an obviously silly waste of time if facts are not
in dispute. The courts, in their own proceedings, rule
on motions to dismiss (or whatever may be the local
equivalent of a demurrer); when they do so they assume
a set of facts, without receiving and passing upon
evidence, and then decide whether the assumed facts add
up to something or to nothing. The courts also enter
sunnnary judgments when the factual allegations of a
party have not been materially controverted by his
opponent. Trial hearings may permissibly be omitted
in administrative proceedings at least as readily as
in their judicial counterparts, when the only things
to be deterinined are the legal consequences of
uncontested ·facts. See, e.g., Weinber5er v. Hrnson,
Westcott and Dunnin~, Inc., 412 U.S. 6 9 (1973 ;
Baxter v. Davis, 45 F.2d 459 (1st Cir. 1971), cert.
denied 405 U.S. 999 (1972); Citizens for Alle~an.-GOunty,
Inc. v. Federal Power Commission, 414 F.2d ll 5 (D.C.
~ 1969); Compare, Fuentes v. Shevin, 407 U.S. 67,
87 (1972); Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966).
In Recommendation No. 20, the Adminis·trative Conference
of the United States proposed that "each agency having
a substantial caseload of formal adjudications . . .
adopt procedures providing for summary judgment or
decision" in order to avoid delays in the administrative
process ''by eliminating unnecessary evident:Lary
hearings where no genuine issue of material fact exists."
1 Recommendations and Reports of the Administrative
Conference of the United States 36 (1968-1970). For
discussion, consult E. Gellhorn and W. F. Robinson, Jr.,
Summary Judgment in Administrative Adjudication, 84
Harv. L. Rev. 612 (1971). The authors state at pages
616-617: "Just as sunnnary judgment is not in conflict
with the right to trial by jury because it is available
only when there is nothing for the jury to decide,
a rule allowing summary decision in administrative

1801

adjudications would not improperly deny the right to
a hearing since it would allow the [law judge] or
agency to--di-spens-e-with an evidentiary hearing only if
the absence of a hearing could not affect the decision."
Gellhorn and Byse, Administrative Law, Cases and Comments,
(6th ed.) at 584 (1974).
As the record shows, the penalty initially proposed for
this violation was $2000, reduced after conference, and after
consideration of the claim that the accumulation had existed
for only 2 to 6 hours, rather than 24 hours, to $1000. After
contest and compliance with Part A of the pretrial order,
regional counsel for the Secretary proposed a further reduction
to $550, again on the ground that the accumulation had existed
for only 2 to 6 hours as shown by the operator's preshift
and on-shift reports. Noting that this claimed factor in
mitigation had already been taken into account by the
assessment conference officer, the trial judge denied the
proposal to settle the matter for $550 on the ground that the
assessment had already been appropriately discounted by the
assessment office, and that no new facts were asserted that
would warrant a further reduction. For this reason, the
trial judge proposed an assessment of $1000 in settlement
and thereafter denied the operator's request for reconsideration. ?_/
In frustration over its inability to bargain the penalty
away, the operator appealed to the Commission demanding
acceptance of the $550 settlement. Granting an interlocutory
appeal after the trial judge had set the matter for. a hearing
limited to the amount of the penalty warranted -- the only
matter that was ever in genuine dispute -- the Commission,
without the benefit of briefs and after the operator had
moved to withdraw its appeal, decreed the need for a full

?_/ The power to "assess" penalties (section 110-(i)) when
coupled with the power to "approve" compromises, mitigations,
and settlements (section llO(k)) necessarily includes the
power to propose an increase or reduction in the penalties
based on an independent evaluation of the circumstances.
See, 31 U.S.C. §§ 951-953; Divers, The Assessment and Mitigation
of Civil Money Penalties, supra, note 5, at .1444. This is
a discretionary function not reviewable as a finding of
fact, but only for an abuse of discretion. Co-Op Mining,
supra; OSHRC v. Brennan, (¥~46; Ame~ican Power Company v.
S.E.C., 329 U.S. 90, 112
); Butz v. Grover Livestock
Company, 411 U.S. 182, 185 (1973)-.-

1802

scale evidentiary hearing to resolve a fact that was never
in dispute, namely--the -d~pth of the alleged accumulation. 8/
Congress long .ago warned against the inefficiency,
confusion, and uncertainty that results to the administrative
process·when the members of an agency rely on faulty staff
analysis in an effort to control the day-to-day conduct of
adjudicatory proceedings. The use of piecemeal interlocutory
appeals to attempt to control the conduct of trial proceedings
is, experience has shown, counterproductive to the just, speedy
and inexpensive disposition of enforcement proceedings.
This was certainly the case in this instance. For, as
the record shows, after a full day spent taking evidence from
the Inspector, the preshift examiner, and the operator's
safety director, the matter originally offered and accepted
in mitigation of the penalty for the purposes of a prehearing
settlement of $1000 became largely irrelevant. And it
became irrelevant because the testimony of the operator's
preshift examiner disclosed and emphasized oth~r violations
which existed contemporaneously with the overlooked accumulation
and which indicated that the condition was significantly
more serious than originally disclosed. These disclosures
clearly made a penalty of $1000 inappropriate, whether or
not the abatement shown on the preshift and on-shift reports
for May 2 were correct. With the matter in this posture, and
in the interest of cutting the loss to effective and efficient
enforcement already experienced, the trial judge suggested a
settlement conference.

~/

The Collllllission's uncritical acceptance of the general
counsel's apocryphal finding of a triable issue of fact to
justify a remand for trial or acceptance of the parties'
settlement proposal was a questionable usurpation of the
tria~ ju~ge's authority to regulate.the course of the proceeding.
A trial JUd~e should not on the basis of a premature, sua
S£onte, preJudgment of the merits by the Collllllission be--raced
with the Robson's choice of approving an improvident
settlement or facing an unnecessary, burdensome or oppressive
requirement for an evidentiary hearing. If on the other hand
the Collllllission wished to approve the partie~' proposed 75%
'
reductio~ in the penalty it obviously had the authority to
do so, without the concurrence of the trial judge. A proper
res~ect for the trial judge's decisonmaking autonomy militates
against the adoption of procedural devices designed to
undermine or intrude on that autonomy.

1803

At that conference the trial judge expressed the view
that the undisputed facts as to the spillage observed on
May 3, 1980, warrantetl-a- finding that under the attendant
circumstances the accumulation violation charged was serious
and the result of a high degree of ordinary negligence. He
further expressed the view that he could not approve a settlement
in an amount less than $2,500. After conferring with their
principals, the parties agreed to a settlement at the figure
proposed. The subsequent motion to approve settlement made
on the record in open court on June 25, 1980, was approved
from the bench.
Accordingly, it is ORDERED that the bench decision and
order approving settlement in this matter be, and hereby is,
ADOPTED and CONFIRMED. It is FURTHER ORDERED that the operator
pay the penalty agreed upon, $2,500, on or before Tuesday,
July 15, 1980, and that subject to payment the captioned
matter be, and hereby is, DISMIS

Distribution:
Thomas R. Gallagher, Esq., Peabody Coal Co., 301 N. Memorial
Drive, P.O. Box 235, St. Louis, MO 63166 (Certified Mail)
Edward. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

Attachment:

Appendix

1804

APPENDIX
At the behest of the solicitor's appellate staff, the
Commission has recently granted an ex parte review of a clearly
provisional decision where the triar-judge proposed a penalty
reduction of $24.00 or 20% in a total penalty of $144.00
for each of three failure to provide safe access violations
initially assessed at $48.00 each. The claim is that even
where the record shows the operator admits liability and
there is no dispute about the gravity, negligence or any
other criteria, the trial judge is without power and authority
to reduce a proposed penalty absent a full scale "on the record"
trial-type hearing. And this despite the fact that the operator
said he did not want a hearing, the solicitor never asked
the trial judge for a hearing, and the operator because of
the de minimis amounts involved cannot afford to attend a
testamentary hearing. Interestingly enough, it is also claimed
that because the decision was, despite its obviously provisional
nature, "final" the judge "lacked jurisdiction to accord the
parties" the opportunity for a settlement conference or
evidentiary hearing if the proposed reduction was not acceptable.
New Jersey Pulverizing Co., YORK 79-94-M, Direction for Review,
dated June 25, 1980.
The Commission did not afford the trial judge
an opportunity to pass on these claims as required by section
113(d)(2)(a)(iii) of the Act, nor did the Commission state
in its Direction for Review the question of law, policy or
discretion involved in its review as required by section
113(d)(2)(B) of ·the Act.
Had the trial judge been afforded the opportunity to be
heard as contemplated by the Act he would have asserted the
following. It is well. settled that section 7(c) of the APA,
5 U.S.C. § 556(d) incorporated by reference in section 105(d)
of the 1977 Mine Health and Safety Act, 30 U.S.C. § 815(d)
permits "on the record" hearings where the partie~ involved
file only written submissions, particularly where the trial
judge's decision is provisional and affords the parties
an opportunity to show the need for a testamentary hearing.
Thus, wherever it appears that cross examination is not
necessary to a "full and true disclosure of the facts" a
case may properly be adjudicated without the waste of time
and expense involved in setting, traveling and holding a
hearing to take testimony that will add nothing to the record.
Davis, Administrative Law Treatise, §§ 10:7, 12:1, 12:2
(2d ed 1980). In fact, the last sentence of section 7(c),

1805

5 U.S.C. § 556(d), specifically provides that claims for
money, which .civil. penalty cases clearly are, may be
decided entirely on the basis of written submissions, unless
a need is shown for a confrontational type hearing. See,
FPC v. Texaco, 377 U.S. 33, 39 (1964); United States v.
AITeyher:ra-Ludlum Steel Cor~., 406 U.S. 742 (1972); United.States
v. F ori a E.C. R~. 410 U. . 224 (1973); Matthews v. Eldridge,
424 U.S. 319 (197 ) ; Smith v. Organization of Foster Families·,
431 U.S. 816 (1977); Dixon v. Love, 431 U.S. 105 (1977).
Thus, where ·the amount in controversy is small, there
are no issues of credibility or veracity critical to the.
decisionmaking process, and there is a strong public interest
in conserving fiscal and administrative resources, neither
constitutional nor administrative due process requires an
evidentiary hearing on small claims for money. ~riy
Panthers v. Califano, 466 F.Supp. 1317 (D.D.C. 1 7
(no due
process right to evidentiary hearing on claims of less than
$100).
In New Jersey Pulverizing, the provisiotial. decision
was predicated on "the information submitted in the official
file", i,e., the information presented by the parties. The
proper procedure, therefore, was for the solicitor to appeal
the correctness of the decision made or to show a need for
a trial-type hearing to supplement the record.
A former Assistant Attorney General, in commenting on the
"acceptability" of cases decided on the basis of written,
on the record, submissions noted that what the trial judge
or the litigating public think is proper and acceptable
procedure often runs contra to the self-interest of the
lawyers:
There is a tendency on the part of lawyers to
think of acceptability in terms of traditional
patterns of legal thinking. Since lawyers have
valued and enjoy adversary proceedings, it is
assumed that members of the public also feel
the same way. This assumption, however, is
questionable. The issue is one of acceptability
of procedures to the persons affected and not to
any group of professionals in the community . . .
Just as war is too important to be left to the
soldiers, justice is so important that it should
not be left to the desires (and profits?) of lawyers
Cramton, A Comment on Trial-Type Hearings, 58 Va. L. Rev.
585, 593 (1972) (criteria for evaluating procedures).

1806

·As Chief Judge Irving Kaufman remarked, "our current
emphasis on early judicial intervention is . . . the
culmination oL_the. effG-rts of many of our greatest legal
thinkers to induce the judges to . . . take an active part
in the control of litigation . . . Contrary to what most of
us have accepted as gospel, a purely adversarial system,
uncontrolled by the judiciary, is not an automatic guarantee
that justice will be done." The Philosophy of Effective
Judicial Supervision over Litigation, 29 F.R.D. 207, 208,
211 (1962).
Finally, the·contention that the Connnission's procedures
are not flexible enough to permit a judge to issue a tentative,
provisional or interlocutory decision proposing an increase
or decrease in the amount of a penalty proposed by the parties
is without merit. The Connnission has held that for good cause
shown the time for filing a petition for discretionary review
may be extended and such an extension would obviously extend
the time for finality even assuming finality could ever attach
to a tentative, provisional or interlocutory decision. See,
Victor McCol v. Crescent Coal Co., PIKE 77-71, __ -Iµne 23, 1980;
Sunbeam Coa Company, 2 FMSHRC 775 (1980).
·
The above was written before receipt of the Connnission's
decision of July 2, 1980 in New Jersey Pulverizing. Instead
of dismissing the appeal as frivolous, the Connnission brushed
aside the Department of Labor's, fustian demand for a full
scale trial-type hearing but vacated the trial judge's decision
of May 16, 1980 on the ground that the claimed reservation
of a "right to reconsider" rendered the decision ultra vires
the decisionmaking powers conferred by the Connnission's
"rules and precedents." I have no difficulty with this in
the context in which the rule speaks, namely, a "final
disposition" but I believe its application to a decision
proposing a settlement conflicts with the power and authority
granted the trial judge under sections S(b) and 7(b)(6) of
the APA, 5 U.S.C. §§ 554(c), 556(c). These provisions when
read together clearly confer discretion o~ the trial judge
to afford the parties an opportunity to settle before setting
a hearing and to advise the parties of the terms and conditions
upon which such a settlement may be approved. This authority
is reinforced by the provisions of section llO(i) and (k) of
the 1977 Mine Health and Safety Act and its legislative history.
The trial judge has repeatedly suggested that under its de novo
authority to "assess" penalties and to "approve" proposaIS - to "compromise, mitigate, or settle" penalties, the Commission
encourage the use of informal pretrial procedures to effect
just, speedy and inexpensive dispositions of cases or violations
where the amounts involved do not warrant the convening of
a trial-type hearing or there is no genuine dispute of material
adjudicative fact.

1807

Ignoring the fact that the trial judge's provisional
decision cle~r.ly__ af£o_r_ded the parties an opportunity to
propose a settlement, the CoIIllllission noting the operator's
plaintive plea to be relieved of this administrative whirlwind
adopted that procedure as its own invention and remanded
the matter with directions to afford the parties "an
opportunity to propose a settlement before any hearing is
scheduled or prehearing order issued." So after making
itself, the trial judge and the administrative process look
ridiculous, the CoIIllllission has arrived at the same coIIllllon
sense procedure for the resolution of these de minimis
violations as was proposed in the judge's deCTs1on and order
of May 16, 1980. I think the lesson learned is that whenever
the CoIIllllission tilts the scales of procedural fairness
in favor of a powerful constitutency or political expediency,
it risks doing itself and the cause of administrative
justice a serious disservice.

1808

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

t 1 JUL 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. PENN 79-105
A/O No. 36-00807-03023
Renton Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Introduction
The above-captioned proceeding is a petition for the assessment of
civil penalties filed by the Mine Safety and Health Administration
(MSHA) against Consolidation Coal Company. Pursuant to a prehearing
order issued December 27, 1979, the parties discussed the 12 alleged
violations contained in the petition and reached a settlement as to 10
of the 12 violations. The terms of this settlement were submitted in a
Motion for Decision and Order Approving Settlement filed by the Secretary
on February 4, 1980. With respect to the two remaining citations, the
parties advised they would submit stipulations for the material facts
involved and requested permission to file motions for sunnnary judgment
and supporting briefs concerning these two citations. In an order
issued March 14, 1980 this request was granted, and the parties subsequently filed the above-mentioned stipulations, motions and briefs.
Citation Nos. 618573, 618578, 618579, 618643, 618645, 618646, 618648,
618649, 618650, 618651.
The Solicitor has filed a motion to approve settlements for these
10 citations.
In her motion, the Solicitor advises the following:
1.
The attorney for the Secretary and the respondent's
attorney have discussed the alleged violations and the six statutory
criteria stated in section 110 of the Federal Mine Safety and
Health Act of 1977.
2.
Pursuant to those discussions, an agreed settlement
has been reached between the parties in the amount of $1,635.
original assessment for the alleged violations was $2,300.
3.
A reduction from the original assessment is warranted
for the following violations.

1809

The

,\-

_Citation No. 618573 was issued for a violation of 30 CFR
75.703. The $195 penalty assessed for this violation should be
reduced to $iOO;--The c1tation states that the energized bonder
being used at the bottom landing was not provided with a grounding
wire. However, further investigation has disclosed that the
bonder was equipped with a grounder which was inadvertently torn
off. This could not have been known to the operator. Therefore
negligence is less than originally assessed. Also, it must be
noted that the track itself gives grounding and that the ground
power conductor was proper. Therefore, the probability of occurrence
is minimal. It is also relevant that this is direct current and
not alternating current. The probability of occurrence with a
direct current is far lower than with an alternating current.
Therefore, $100 is an appropriate assessment.
Citation No. 618578 was issued for a violation of 30 CFR
75.200. The citation states that the approved roof control plan
was not being complied with in the designated and return escapeways
for a total distance of 2,000 feet. Further investigation has
disclosed that at least half of this area was not required to be
center posted as stated in the citation. It was not-required to be
center posted because it was driven in 1973, well before the roof
control plan requiring center posting was instituted. Therefore,
the operator's negligence is less than originally stated and a
reduction from $295 to $145 is appropriate.
Citation No. 618579 was issued for a violation of 30 CFR
75.200 and appropriately assessed a penalty of $255. The approved
roof control plan was not being complied with where partial pillaring
was taking place. A cut of coal approximatly 20 feet long and
11 feet wide was exposed and not roof bolted or barricaded as
required. As stated in the inspector's statement, the condition
should have been detected during a pre-shift examination. However,
it is not likely that a person would be harmed by this failure to
comply with the roof control plan as there was no means of access
to the area which was blocked by the continuous miner. Therefore,
the penalty as proposed is appropriate.
Citation No. 618643 was issued for a violation of- 30 CFR
75.200 and appropriately assessed a penalty of $305. The approved
roof control plan was not being followed as bolts are required to
be placed on 4 foot centers. In this case the distance between
bolts ranged from 52 inches to 60 inches. Further investigation
has disclosed that only three rows of the bolts were out of pattern
and that the area has a good solid top. Therefore, the likelihood
of an injury occurring is low. However, as the operator is obligated
to comply with its roof control plan, a penalty of $305 is appropriate.
Citation No. 618645 was issued for a violation of 30 CFR
75.523-2. The $170 assessment for this violation should be reduced
to $120. The deenergizing device on the shuttle car was inoperative.

1810

However, it was not within the operator's control to know of this
violation. ·__someone-had tampered with the adjustments on the equipment and the equipment operator did not inform the operator. Also,
although more pressure needed to be exerted than allowable, it was
possible to deenergize the equipment in its condition at the time
this citation was issued. Also, the probability of occurrence is
lowered as the shuttle car was protected by a canopy. For these
reasons, the penalty reduction is appropriate.
Citation No. 618646 was issued for a violation of 30 CFR
75.400. The $225 assessment for this violation should be reduced
to $140. An accumulation of combustible material was found around
the bottom landing of the Renton shaft for approximately 700 feet.
This operator maintains a weekly clean-up program and a garbage can
is provided by the operator. However, this accumulation existed at
the lunch place. The operator has instructed the men to use the
garbage can and to clean-up after themselves. This violation is
not within the operator's exclusive control. It is confirmed that
the operator maintains a clean-up plan at this area. For these
reasons, the operator's negligence is very low and ~- $140 assessment is appropriate.
Citation No. 618648 was issued for a violation of 30 CFR
75.200. In the intake escapeway the operator failed to post
100 feet according to the roof control plan. The operator did know
of this violation. However, according to the roof control plan
posts are supplementary support to be used only after bolts are
installed. This area was bolted according to the plan. Also, the
roof in this area was strong and there was no indication that there
was weight on the cribs. Moreover, the entry was posted. [In a
telephone conversation on June 26, 1980 the operator informed my
law clerk that the ninth word in the second sentence in this
paragraph should be "post" and not "bolt." The operator further
agreed to pay the full assessment of $255 for this violation rather
than the reduced amount the parties had agreed upon.]
Citation No. 618649 was issued to the operator for a violation of 30 CFR 75.807. The $150 assessment for this-violation
should be reduced to $100. In this case, a bare energized trolley
wire was coming in contact with the high voltage cable on the main
track haulage. However, the cable itself was wrapped and insulated.
It was not within the operator's control that this condition
occurred. One of the brackets holding up the cable broke causing
the cable itself to slip and sag near the trolley wire. As the
operator was not negligent and as the cable itself was wrapped,
this penalty should be reduced to $100. This reflects accurately
the lack of operator negligence as.well as the low probability of
occurrence.
Citation No. 618650 was issued for a violation of 30 CFR
75.200. The approved roof control plan was not being complied with

1811

,,-..

as the pillar line was not fenced off or posted. The $240 assessment for this violation should be reduced to $160. Further investigation has discfosed that the posts had been set as required by
the roof control plan. However, an unintentional roof fall knocked
out the breaker posts. As the operator initially did comply with
the roof control plan and had not yet reinspected this area, the
penalty reduction appropriately reflects the operator's degree of
negligence. Also, this occurred in a gob area where it was unlikely
that men would be travelling.
Citation No. 618651 was issued for a violation of 30 CFR
75.400. The $210 assessment for this violation should be reduced
to $110. An accumulation of fine dry coal, loose coal and float
coal dust was present in the pillar section. The operator maintains
a continuous clean-up plan. However, this violation occurred in an
area where the ribs were frequently sloughing and it was very
difficult for the operator to control the violation. Thus, the
operator's negligence was very slight. It is documented that the
operator cleans this area at approximately dinner time and at the
end of the shift. This citation was issued at 11:15, just slightly
before the dinner hour. For these reasons, the penalty reduction
as proposed is appropriate.
Each of the above penalty proposals takes into account all
relevant statutory criteria.
I accept the Solicitor's representations. Accordingly, I conclude
the reconunended settlements are consistent with and will effectuate the
purposes of the Act. The reconunended settlements are therefore, approved.
Citation Nos. 618574 and 618644.
In accordance with Commission Rule 64, 29 C.F.R. § 2700.64, each
party has moved for sununary decision with respect to Citation Nos. 618574
and 618644. !/

A.

Citation 618574

This citation alleges a violation of 30 C.F.R. § 75.1704 for the
following condition:

".!./

29 C.F.R. § 2700.64 provides in part:
"(a) Filing of motion for summary decision. At any time after
conunencement of a proceeding and tefore the scheduling of a hearing on
the merits, a party to the proceeding may move the judge to render
smmary decision disposing of all or part of the proceeding.
"(b) Grounds. A motion for summary decision shall be granted
only if the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits shows: (1) that
there is no genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter of law."

1812

The designated return escapeway in the 15 North Section
ID /!015 had -two--roof-fails which were not maintained to insure
passage at all times of any person including disabled persons.
Both falls were inby #4617. Both falls did not provide the required
width of six feet and both needed posts.
30 C.F.R. 75.1704 provides as follows:
Except as provided in § § 75.1705 and 75.1706, at least
two separate and distinct travelable passageways which are maintained to insure.passage at all times of any person, including
disabled persons, and which are to be designated as escapeways, at
least one of which is ventilated with intake air, shall be provided
from each working section continuous to the surf ace escape drift
opening, or continuous to the escape shaft or slope facilities to
the surface, as appropriate, and shall be maintained in safe
condition and properly marked. Mine openings shall be adequately
protected to prevent the entrance into the underground area of the
mine of surface fires, fumes, smoke, and floodwater. Escape facilities approved by the Secretary or his authorized !'_epresentative,
properly maintained and frequently tested, shall-be present at or
in each escape shaft or slope to allow all persons, including
disabled persons, to escape quickly to the surface in the event of
an emergency.
No factual dispute exists. The.parties have submitted signed
stipulations as to all material facts. These stipulations set forth
that:
1.
In the designated return escapeway in the 15 Section
I.D. No. 015, two roof falls had occurred.
2.

Five posts were dislodged.

3.
The falls did not allow the required six feet of
clearance.

4.
The roof in the return escapeway is solid sandrock
and generally strong.
5.
The return escapeway was examined in compliance with
30 C.F.R. 75.1704-2(c)(l) on April 17, 1979, and the condition
described in the subject citation did not exist at that time.
6.
On April 20, 1979, an authorized representative observed
the two roof falls in the designated escapeway and issued the
subject citation.
7.
The roof falls occurred between the time of the last
regular weekly escapeway inspection, i.e., April 17, 1979, and the
date of the issuance of the citation;-that is April 20, 1979.

1813

8.
The escapeway was not used between April 17, 1979,
and April 20, 1979.
-~

-· - --

9.
The negligence of the operator is low, as the operator
did comply with the weekly examination requirement of 30 C.F.R.
75.1704-2(c)(l).
10. Were the escapeway to be needed in the event of an
emergency, the roof falls could have made passage extremely
difficult. Due to the obstruction created by the roof falls, an
existing injury could have been aggravated, causing a possible
fatality. However, the operator did have its one other designated
escapeway maintained in passable and good condition. Also, other
entries, though not designated escapeways, were in passable condition. Therefore, it is improbable that such an incident would have
occurred.
The issue presented is whether there is a violation of 30 C.F.R.
75.1704 when the cited condition occurs between the time of the
escapeway inspection conducted pursuant to 30 C.F.R. § 75.1704-2(c)(l)
and the MSHA inspection.
§

The mandatory standard is clear in requiring that at least two
passageways maintained to insure passage at all times of any person be
provided and maintained in a safe condition. "Maintain" is defined,
inter alia, as "to keep in a certain condition or position, especially
of efficiency, good repair, etc." Webster's New World Dictionary (1972
edition). The regulation does not distinguish between conditions which
occur due to unpredictable circumstances and those which are caused by
the operator's lack of due diligence. Nor does the standard contain any
reference to time. Accordingly, I conclude that the standard imposes an
absolute duty upon the operator with respect to the condition of the
passageways. Since passage admittedly was extremely difficult, a
travelable passageway did not exist and the operator failed to meet the
obligation imposed upon it.
I am bound by the clear language of the regulation. The circumstances under which the failure to maintain the requisite ~assageways
occurred, such as the recent roof falls, may be taken into account in
determining the degree of negligence. The fact that the operator complied
with the weekly examination requirement in 30 C.F.R. § 75.1704-2(c)(l)
does not affect the issue of whether there is a violation of 75.1704.
In light of the foregoing, I conclude that a violation of 30 C.F.R.
75.1704 occurred for which a civil penalty must be assessed. Pursuant
to the stipulations set forth here.in, I find negligence was low. I also
take note of representations that the violation was abated in good
faith, the operator is large in size, has a history of previous violations, and that the imposition of a penalty will not affect the operator's
ability to continue in business.
§

1814

A penalty of $180 is assessed.
Citation No. 618644
This citation alleges a violation of 30 C.F.R. § 75.303, for the
following condition:
At three high cavities along the Conveyor Belt in the
16 South Section ID #019 there was no evidence or indication that
a pre-shift examination was made prior to men entering the 16 South
Section for work. There was no date, time or anybody's initials
for the above date. This is a statutory provision that a pre-shift
examination and also evidence of said examination shall be made
3 hours preceeding the beginning of the shift. [Modified on May 3,
1979 to read: At three high cavities along the conveyor belt in
the 16 South Section ID No. 019 there was no evidence to indicate
that an examination was made for 5/1/79 or 5/2/79 after the coal
producing shift had begun. The evidence required is the date, time
and initials of the person making the examination at all locations
he examines. An examination on these cavities was niade by the
safety director on 5/2/79 after it was pointed ouf to him by me
that no dates were there for 5/1/79. This section produced coal on
5/1/79.]
30 C.F.R. 75.303 provides in relevant part as follows:
(a) Within 3 hours immediately preceding the beginning of
any shift, and before any miner in such shift enters the active
workings of a coal mine, certified persons designated by the
operator of the mine shall examine such workings and any other
underground area of the mine designated by the Secretary or his
authorized representative. Each such examiner shall examine every
working section in such workings and shall make tests in each such
working section for accumulations of methane with means approved by
the Secretary for detecting methane, and shall make tests for
oxygen deficiency with a permissible flame safety lamp or other
means approved by the Secretary; examine seals and doors to determine whether they are functioning properly; examine and test the
roof, face, and rib conditions in such working section; examine
active roadways, travelways, and belt conveyors on which men are
carried, approaches to abandoned areas, and accessible falls in
such section for hazards; test by means of an anemometer or other
device approved by the Secretary to determine whether the air in
each split is traveling in its proper course and in normal volume
and velocity; and examine for such other hazards and violations of
the mandatory health or safety standards, as an authorized representative of the Secretary may from time to time require. Belt
conveyors on which coal is carried shall be examined after each
coal-producing shift has begun. Such mine examiner shall place his

1815

initials and the date and time at all places he examines. If such
mine examJ~e~_f~nds_a condition which constitutes a violation of a
mandatory health or safety standard or any condition which is
hazardous to persons who may enter or be in such area, he shall
indicate such hazardous place by posting a "danger" sign conspicuously at all points which persons entering such hazardous place
would be required to pass, and shall notify the operator of the
mine.

*

*

*

The parties have submitted stipulations with respect to the facts
involved. These stipulations set forth that:
1.
On May 1, 1979, the Renton Mine was idle, therefore,
no coal was produced.
2.
30 C.F.R. § 75.303 provides: "belt conveyors on which
coal is carried shall be examined after each coal-producing shift
has begun. Such mine examiner shall place his initials and the
date and time at all places he examines."

3.
As the mine was idle on May 1, 1979, it was not necessary
for the operator to examine the belt on that day.

4.
On May 2, 1979, the operator was engaging in producing
coal on the 8:00 a.m. shift and the conveyor belt in the 16 South
Section, I.D. No. 019, was energized at the time of the inspection.
5.
The authorized representative issued the subject citation
at 11:30 a.m.
6.
At the time the inspector issued the citation there was
no evidence to indicate that an examination was made for May 2,
1979, after the coal-producing shift had begun.
7.
The operator did intend to make a belt examination on
May 2, 1979, sometime during the shift in which the citation
was issued.
8.
At the time the citation was issued, the belt was in
good condition and no hazards existed.
9.
The probability of occurrence is low, as the belt was
in good condition.
10.
The operator exercised normal good faith in abating
this condition within the time set for abatement or a reasonable
time thereafter.

1816

The issue presented for resolution in this matter is whether
30 C.F.R. § 75.303--_requires--Sn examination of belt conveyors which carry
coal to be conducted itmnediately after each coal-producing shift has
begun or at any time during such coal-producing shift.
I conclude that the mandatory standard requires only that belt
conveyors on which coal is carried be examined after each coal-producing
shift has begun. There is no requirement of itmnediate examination of
belt conveyors after the start of a production shift. Indeed, there is
no time requirement at all except that the examination occur during the
shift. If the Secretary wished to require an itmnediate inspection of
such conveyors or an inspection within a specified time after the start
of the shift, the regulation could have so provided. As I have stated
before, I have neither the authority nor the inclination to substitute
myself for the formal rulemaking procedures set forth in the Act. See,
~'Riverside Cement Company, WEST 79-94-M et al, (December 18, 1979).
The Solicitor cites the inspector's manual which provides that
these examinations shall be started without delay. I do not know what
"without delay" means. The operator cites an earlier memorandum issued
by a Subdistrict Manager which states that the examination can be done
at any time during the shift. I am not bound by either interpretation,
which are not official regulations but I do note that the former Board
of Mine Operations Appeals held that the operator cannot properly be
held to comply with guidelines or amplifications of the Act not properly
promulgated as regulations issued pursuant thereto. Kaiser Steel Corporation,
3 IBMA 489 (1974). Here the language of the mandatory standard is clear.
If the Secretary wants to require something more or something different,
he must amend the regulations in the proper manner.
For these reasons, I find no violation existed and the citation
must be vacated.
ORDER
The operator is ORDERED to pay $1,870 within 30 days from the date
of this decision.
Citation No. 618644 is hereby VACATED.

~

__:=-_pJ
Paul Merlin
Assistant Chief Administrative Law Judge

1817

Distribution:
-~

.

-

--

Barbara Kaufmann, Esq., Office of the Solicitor, U.S. Department of
Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, PA
19104 (Certified Mail)
Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1818

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
·6FFICE' or ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

1 1 JUL 1980
RONALD H. McCRACKEN,
Complainant

Complaint of Discharge,
Discrimination or Interference

v.
Docket No. WEVA 79-116-D
VALLEY CAMP COAL COMPANY;
Respondent

Valley Camp No. 1 Mine

DECISION DENYING REQUEST
FOR NEW HEARING
On April 18, 1980, I issued a decision dismissing a Complaint of
Discharge and Discrimination filed by Ronald McCracken finding insufficient
evidence that his discharge was the result of any discrimination proscribed
by the Federal Mine Safety and Health Act of 1977. McCracken subsequently
filed a timely petition for discretionary review with the Federal Mine Safety
and Health Review Commission claiming, inter alia, that newly discovered evidence warranted reopening of the case and further proceedings. On May 28,
1980, the Commission remanded the case to me for a ruling on that specific
claim. No hearing was held inasmuch as there is no genuine issue as. to any
material fact. _!!.:.!:., v. Cheramie Bo-True No. 5, Inc., 538 F.2d 696 (1976),
~· ~., 559 F.2d 1217; Independent Bankers Assoc. of Georgia v. Bd. of
Governors or Federal Reserve Systems, 516 F.2d 1206, 170 U.S. App. D.C. 278
(1975). All essential evidence is a matter of record in the form of transcripts and affidavits and the accuracy of those documents is not disputed.
The issue here is the interpretation to be given that evidence.
In the absence of specific provisions for consideration of newly discovered evidence in the Commission Rules of Procedure or in the Administrative Procedure Act, my consideration of the question presented will be
governed by Rule 60(b)(2) of the Federal Rules of-Civil Procedure and as that
rule has been judicially construed. Commission Rule 29 C.F.R. § 2700.l(b).
In essence, Federal Rule 60(b)(2) provides that a party may be relieved from
a final judgment, order or proceeding on the basis of newly discovered evidence. Such relief is considered extraordinary, however, and may be granted
only where extraordinary circumstances are present. Posttape Associates v.
Eastman Kodak Co., 387 F.Supp. 184, 68 F.R.D. 323 (E.D. Pa. 1975), rev 1d. on
other grounds, 537 F.2d 751. Thus, a motion under Rule 60(b)(2) asserting
newly discovered evidence as a basis for a new trial will not be granted
unless (1) the evidence was discovered following the trial; (2) due diligence
on the part of the movant to discover the new evidence is shown or may be
inferred; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is material, and (5) the evidence is such that a new trial would
1819

probably produce a new result. A. G. Pro, Inc. v. Sakraida, 512 F.2d 141
(5th Cir. 1975); L_t;!det__ v .-United States, 297 F .2d 737 (5th Cir. 1966). These
requirements must be strictly met. Strauss v. United States, 337 F.2d 853
(5th Cir. 1964)~
McCracken has proffered as "newly discovered evidence" certain testimony
from an unrelated proceeding given by Ronald Ernest, a foreman employed by
the Valley Camp Coal Company (Valley Camp), which he claims "clearly demonstrates that witnesses of the Respondent testified falsely or incorrectly" at
the hearing on the discrimination complaint previously before me. While
McCracken does not, in his motion, make reference to the precise testimony of
these witnesses that he claims to be false or incorrect, it appears that he
is referring to the testimony of James Litman, then vice president for operations at Valley Camp. Although he also names John Gotses, then Valley Camp's
industrial relations manager, as the other witness contradicted by Ernest,
Gotses in fact did not testify as to the precise subject area now at issue.
James Litman testified, in essence, that in order to enable a person
unfamiliar with the hazards unique to underground coal mining to learn to
work safely in that environment, it had been the company policy since at
least 1974, that underground experience in areas where coal is being extracted
was a prerequisite to immediate employment in such areas. He observed that
such employees were first required to work with an experienced miner in the
underground workings for 6 months as an apprentice or "red hat" to learn of
the mine hazards. Litman testified that company requirements in this regard
were even more stringent than those of the West Virginia Department of Mines.
This testimony was relevant to the case in that it established one basis for
showing that McCracken was not qualified, at the time of his layoff, for
immediate alternative employment in the underground workings of the mine
where coal is extracted.
McCracken contends that the testimony of Ronald Ernest at a deposition
on April 24, 1980, establishes, contrary to the testimony of Valley Camp's
witnesses, that Valley Camp had in fact adopted the same requirements as the
West Virginia Department of Mines in that any coal miner who was qualified
and recognized by that department was thereby automatically eligible to work
in all underground sections of the mine regardless of his previous experience.
Although he submits four pages of transcript from the testi-mony of Ronald Ernest
in support of his claim it is apparent that only the following passage is
directly on point:

Q. Does Valley Camp Coal Company have any requirements
in addition to those of the State of West Virginia?
A.

We run them through an 80-hour course.

Q.

That is done during the--

A. Prior to this employment [as a trainee for the first
90 days and as an apprentice "red hat" for the next 30 days].

1820

Q. Allright, sir. Other than that requirement and the
taking of the-tes-t-,:- are-there any additional requirements for
qualification as an underground laborer?
A.

Not to my knowledge. 1J

According to the uncontested affidavit submitted by Ernest he construed
the last question in the above extract in the context of the requirements of
the State of West Virginia and not the requirements of Valley Camp. I find
this interpretation of the question to be reasonable and responsive in the
context in which it was asked. His testimony is therefore wholly consistent
with that of Litman and other witnesses at the hearing. Complainant's allegations are thus without basis in fact. The alleged newly discovered evidence is therefore merely cumulative in nature and as such cannot afford a
basis for a new hearing. 2/ The evidence clearly is not of such a nature
that would probably produce a new result after a new hearing. Sakraida,
supra; Kolstad v. United States, 262 F.2d 839 (9th Cir. 1959); Philippine
National~ v. Kennedy, 295 F.2d 544 (App. D.C. 1961).
In connection with his various pleadings and letters filed in this case
McCracken also cites other excerpts from Ernest's testimony as being "noteworthy" or "interesting". Although I do not consider these offhand comments
to be a part of the motion filed herein I nevertheless have examined those
excerpts in the context of that motion. I do not find that any of these
references would afford any basis for relief under Rule 60(b)(2).
Under the circumstances, McCracken does not meet the criteria necessary
to succeed on a Rule 60(b)(2) motion asserting newly discovered evidence. I
therefore conclude that his claim of "newly discovered evidence" does not
warrant reopening of the record or further proceedi gs. His motion in that
regard is therefore denied.

1/ Transcript page 16 from the deposition
st in the case of
ourt of Ohio County,
Cherich v. The Valley Camp Coal Company, in t
West Virginia, Civil Action No. 79-C-730TA.
2/ Since this evidence could hardly be considered as "hidden" at the time of
the decision in this case it would, for this additional reason, not afford a
basis for relief under Rule 60(b)(2). Ryan v. U.S. Lines Company, 303 F.2d
430 (2nd Cir. 1962).

1821

Distribut~on:

John w. Coop-er,---Esq;-,--Pinsky, Barnes, Watson, Wilmo & Hinerman, 800 Main
Street, Wellsburg, WV 26070 (Certified Mail)
Arthur M. Recht, Esq., Schrader, Stamp & Recht, 816 Central Union
Building, Wheeling, WV 26003 (Certified Mail)
Cynthia Attwood, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

1822

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

(.703) 756-6230

1 4 JUL 1980
SECRETARY OF LABOR, .
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. WEVA 80-41
A.C. No. 46-02380-03008 I

Petitioner
v.

Bishop Preparation Plant

BISHOP COAL COMPANY,
Respondent
DECISION
Appearances:

DavidE. Street, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Karl T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA), under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act),
to assess a civil penalty against Bishop Coal Company (hereinafter Bishop) for
a violation of mandatory safety standards.

The proposal for assessment of

a civil penalty alleges a violation of 30 C.F.R. §§ 77.1605(k) and 77.1605(1).
A hearing was held in Charleston, West Virginia, on May 21, 1980.
Walls testi~ied on behalf of MSHA.
behalf of Bishop.

Franklin

James Lawless and Jack Holt testified on

Upon completion of the taking of testimony, the parties

submitted oral arguments.
1823

·

Thi~ matter

involves the alleged failure of Bishop to provide berms or

other guards at a-dumping location and on the outer bank of elevated roadways.

The order on which the civil penalty is proposed was issued following

an investigation of an accident at the Bishop Preparation Plant.

The acci-

dent occurred when a truck, operated by an employee of an independent contractor, missed the ~amp to the dumping area while backing up and went down
an embankment.
ISSUES
Whether Bishop violated the Act or regulations as charged by MSHA and,
if so, the amount of the civil penalty which should be--assessed.
APPLICABLE LAW
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent
part as follows:
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 attempti~g to
achieve rapid compliance after notification of a violation.
30 C.F.R § 77.1605(k) provides as follows:

"Berms or guards shall be

provided on the outer bank of elevated roadways."
30 C.F.R. § 77.1605(1) provides as follow:

"Berms, bumper blocks,

safety hooks, or similar means shall be provided to prevent overtravel and
overturning at dumping locations."

1824

STIPULATIONS
The parties stipulated the following:
1. Bishop Preparation Plant is owned and operated by Respondent Bishop
Coal Company.
2. Bishop Preparation Plant is subject to the jurisdiction of the
Federal Mine Safety an.d Health Act of 1977 as amended.
3. The administrative law judge has jurisdiction over this proceeding,
pursuant to section 110 of the 1977 Act.
4. The subject order and termination thereof were properly served by
a duly authorized representative of the Secretary of Labor upon an agent of
Respondent at the dates, times and places stated therein and may be admitted
into evidence for the purpose of establishing their issuance and not for the
truthfulness or relevancy of any statement asserted therein.
- __ .-

5. The assessment of civil penalties in this proceeaing will not affect
the Respondent's ability to continue in business.
6. The appropriateness of the penalty, if any, to the size of the coal
operator's business should be determined based upon the fact that in 1979 the
Bishop Preparation Plant processed an annual tonnage of 751,799 and the controlling company, Bishop Coal Company, had an annual tonnage in excess of
approximately 751,799 tons.
7. The alleged violation was abated in a timely fashion and the operator
demonstrated good faith in attaining abatement.
8. The gravity of the alleged violation was that an accident occurred.
It affected one person and resulted in said person losing a work day.
SUMMARY OF THE EVIDENCE
During darkness on the midnight shift on February 28, 1979, a truck
haulage accident occurred at the Bishop Preparation Plant.

A coal haulage

truck, weighing 40 to 50 tons, operated by an independent contractor was
attempting to back onto the dumping ramp at the plant.

This was only the

truck driver's second trip to the site and he apparently was working his

1825

second consecutive shift at the time of the accident.

The .driver misjudged

the ramp and the right-·rear-wheels missed the ramp by several feet.

This

caused the haulage truck to go over the embankment which was approximately
11 feet above the surface below.

The driver jumped out of the truck prior

to its fall and sustained an injury causing him to lose one day of work.
MSHA assigned inspector Franklin Walls to investigate this accident.
Upon completion of his investigation, Inspector Walls issued an imminent
danger order of withdrawal under section 107(a) of the Act, due to inadequate berms or guards at the dumping site and along portions of the elevated
access roadway leading to the dumping site.
The facts concerning the physical condition of the dumping site at the
time of the accident are in dispute.

Although numerous photographs were

received in evidence, they are subject to different interpretations in light
of the extensive damage caused to the area by the falling truck.

.Bishop

alleged that prior to the accident, the following berms or guards were provided at the point where the truck went over the edge of the dumping area:
a handrail type fence, a small pile of rocks and debris along the edge of
the bank, and a metal pipe 8 inches in diameter.

MSHA asserts that the

8-inch metal pipe was not present at the time of the accident.

Bishop con-

cedes that the handrail was not intended to prevent trucks from going over
the edge.
According to the calculation of the parties, if the truck in question
were perfectly centered on the ramp, there would be approximately 1-1/2 to
2 feet of clearance on each side of the truck.

1826

Based upon the location of

the right rear tire marks at the edge of the bank, the truck missed the
ideal backup point-by-) or 4 feet.

Both parties agreed that the truck

driver was negligent.
Bishop's superintendent, James Lawless, contended that the 8-inch pipe
along the ramp and the part of the pipe that went around the corner where
the right rear wheels of the truck went over the bank was in place at the
time of the accident.

He further alleged that the pipe was torn from the

concrete and knocked down the bank in the accident.

Inspector Walls dis-

agreed and testified that the pipe was found lying at the bottom of the bank
covered with float coal dust which indicated that the pipe had not been
-

---

recently dislodged.
There was some disagreement between Inspector Walls and Superintendent
Lawless as to whether even the berm which was installed for abatement would
be sufficient to prevent the occurrence of this accident.

However, both

agreed that under certain circumstances the berm would be sufficient.
Bishop produced further evidence that since 1971 more than 100 trucks
use this dumping ramp on each working shift.

There had been no accidents or

complaints concerning the berm or guard prior to the instant accident.
Moreover, the access road and dumping location had been inspected numerous
times by MSHA and its predecessor since 1971 with no prior complaints about
the inadequacy of berms or guards.
With regard to the access road, Inspector Walls identified four separate locations where berms were either inadequate or nonexistent.

182·7

The total

length of the cited areas of the access road was several hundred feet.

In

these locations, the inspector testified that there was an embankment on one
side and where berms existed they were very low and would not have been sufficient to prevent overtravel by haulage trucks.

Superintendent Lawless testi-

fied that he had walked the access road with another MSHA inspector approximately 3 months prior.to the date of the instant order and that inspector
said nothing about inadequate berms.

He contended that the condition of the

berms had remained essentially the same from the date of the prior inspection to the time of the accident.

However, he conceded that the winter

weather conditions and truck usage of the road may have lowered the berms
.

~

- ..

between the date of the prior inspection and the date of this order.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of the parties have been considered.

MSHA contends that Bishop failed to provide ade-

quate berms or guards at the dumping site and along the access road.

MSHA

further asserts that Bishop is chargeable with a high degree of negligence
or gross negligence and that a civil penalty in the amount of $4,000 should
be assessed.

Bishop asserts that it provided berms at all locations where

they were required.

Bishop also asserts that it was not negligent in any

way and that a $4,000 civil penalty would be "absurd."
Since MSHA's investigation was prompted by the truck accident at the
dumping site, the evidence concerning the dumping site will be examined
first.
follows:

The regulation in question, 30 C.F.R. § 77.1605(1), provides as
"Berms, bumper blocks, safety hooks, or similar means shall be

1828

provided to prevent overtravel and overturning at dumping locations."

I

find that the preponderance of the evidence establishes that at the time of
the accident in question, the means provided by Bishop to prevent overtravel
and overturning were the following:

a metal pipe 8 inches-in diameter and

a small 'pile of rocks and debris.

Although a small metal handrail was also

present, this was not intended to prevent overtravel by trucks.

I find that

the physical evidence, particularly the photographs taken shortly after the
accident, supports Bishop's contention that the 8-inch metal pipe was dislodged by the truck's fall.

Nevertheless, I find that Bishop violated the

regulation in question because the metal pipe and the small pile of rocks and
debris were not sufficient "to prevent overtravel and overt~rning at dumping
locations."

While. the truck driver was admittedly negligent in misjudging

the entrance to the dumping ramp by a few feet, this does not exculpate
Bishop from liability.

Although there is no evidence of any prior accident

at this site, Bishop should have known that an 8-inch pipe and a small pile
of debris were insufficient to prevent overtravel and overturning of trucks
weighing 40 to 50 tons.

However 1 I find no evidence in the record to support

MSHA's contention that Bishop is chargeable with a high degree of negligence
or gross negligence.

For this violation, I find that Bishop is chargeable

with ordinary negligence.
The preponderance of the evidence establishes that Bishop failed to provide adequate berms or guards along the outer bank of parts of its access
road to the preparation plant.

Bishop's contention that the small piles of

rocks or debris along the elevated roadway constituted a berm is rejected.
The requirement of 30 C.F.R. § 77.1605(k) that berms or guards shall be

1829

provided means that they must be adequate to ~revent overtravel of the outer
bank.

The evidence establishes that Bishop violated this standard.

Bishop's

reliance upon the failure of MSHA inspectors to cite this condition during
earlier inspections is misplaced.

Even if the condition of the berms was the

same as on the prior inspections, Bishop is on notice by the regulation that
adequate berms or guards are required.

Since Bishop should have known of

this violation, I find it chargeable with ordinary negligence.
In assessing a civil penalty, I have considered Stipulations 5 through 8
and the fact that Bishop is chargeable with ordinary negligence in this case.
Based upon the evidence of record and the criteria set__ fort-h in section llO(i)
of the Act, I conclude that a civil penalty of $2,500 should be imposed for
the violation found to have occurred.
ORDER
Therefore, it is ORDERED that Respondent pay the sum of $2,500 within
30 days of the date of this decision, as a civil penalty for the violation
of 30 C.F.R. §§ 77.1605(k) and 77.1605(1).

Distribution by Certified Mail:
David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241

1830

...

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

(703) 756-6210/11/12

·1 6 JUL 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. PITT 79-186-P
A.O. No. 36-05018-02012

v.

Docket No. PITT 79-185-P
A.O. No. 36-05018-03010

U. S. STEEL CORP.,
Respondent

Cumberland Mine
DECISIONS APPROVING SETTLEMENTS

These civil penalty proceedings were initiated by the petitioner
against the respondent through the filing of proposals 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), seeking civil penalty
assessments for seven alleged violations of certain mandatory safety
standards promulgated pursuant to the Act.
Respondent filed timely answers in the proceedings and the cases
were consolidated for hearing in Pittsburgh, Pennsylvania, on March 19, 1980.
Subsequently, by motion filed June 17, 1980, petitioner now seeks approval of
a proposed settlement negotiated by the parties as follows.
Docket No. PITT 79-186-P
This docket concerns five citations which the parties propose to
dispose of by settlement. The citations, initial assessments, and the
proposed settlement amounts are as follows:
Citation No.
235178
235179
235180
235621
235622

Date
11/30/78
11/20/78
11/27/78
11/30/78
11/30/78

30 CFR Standard

Assessment

Settlement

77. 701
77.506
77.902
77. 508
77 .506

$ 160.00
90.00
160.00
160.00
78.00
688.00
$

$ 160.00
90.00
160.00
160.00
78.00
688.00
$

1831

·-

Discussion

- . - --

The proposed settlement is for 100% of the initial proposed
assessments made by. MSHA for the violations in question. In support of
the proposed settlement, petitioner has submitted information pertaining
to the six statutory factors set forth in section llO(i) of the Act.
In addition, petitioner has submitted a full and complete discussion and
analysis of the facts and circumstances surrounding each of the citations,
including the factors of gravity, negligence, and good faith compliance.
After review and consideration of the arguments presented in support
of the proposed sett~ement, I find that it is reasonable and in the
public interest, and that it should be approved.
Order
Pursuant to Commission Rule 30, 20 CFR 2700.30, petitioner's motion
is granted, settlement is approved, and respondent is ordered to pay
civil penalties in the amount of $688.00 in satisfaction of the aforesaid
citations, payment to be made to MSHA within thirty (30) days of the date
of this decision and order. Upon receipt of payment, this matter is
dismissed.
Docket No. PITT 79-185-P
This docket concerns two citations, 7-0049, 12/13/77, 30 CFR 70.250(a),
and 235657, 11/13/78, 30 CFR 77.1713(d), for which civil penalties of
$72 and $66 were initially proposed by the petitioner. Petitioner's
motion seeks approval of a settlement for citation 7-0049, for the full
amount of the $72 assessment, and in support of its proposal petitioner
has submitted a full and complete discussion of the facts and circumstances
surrounding the citation, including information with respect to the six
statutory factors found in section llO(i) of the Act.
With regard to citation 235657, petitioner states that it has been
vacated because no violation of the cited standard occurred, and no
civil penalty should be assessed.
Order
Pursuant to Commission Rule 30, 29 CFR 2700.30, settlement is approved
and respondent is ordered to pay a civil penalty in the amount of $72 in
satisfaction of the citation in question, payment to be made to MSHA
within thirty (30) days of the date of this decision and order. Upon
receipt of payment, this matter is dismissed. The vacated citation is
dismissed.

• Koutras
Judge

183~

Distribution:

l--

Sidney Salkin, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant Street, Pittsburgh,
PA 15230 (Certified Mail)

1833

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

1' 8 JUL 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. CENT 79-171-M
A.O. No. 23-00981-05002

Petitioner

v.
Gooden Quarry and Mill
MARTIN MARIETTA AGGREGATES,
Respondent

Docket No., CENT 79-108-M
A.O. No. 13-00120-05002
Klein Quarry

DECISIONS
Appearances:

Rochelle G. Stern, Attorney, Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri, for the
petitioner;
Charles A. Bliss, Cedar Rapids, Iowa, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 820(a), charging the respondent with two alleged violations of certain mandatory safety standards set forth in Part 56, Title 30,
Code of Federal Regulations. Respondent filed timely answers contesting the
citations and requested hearings. Hearings were held pursuant to notice on
May 20, 1980, in Kansas City, Missouri, and the parties appeared and participated therein. The parties waived the filing of posthearing proposed findings, conclusions, and briefs and were given an opportunity to present oral
arguments on the record with regard to their respective positions. Further,
at the request of the parties, bench decisions were rendered and the decisions are herein reduced to writing as required by Commission Rule 65,
29 C.F.R. § 2700.65(a).
Issues
The principal issues presented in these proceedings are (1) whether
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for asse~sment of civil penalties filed,

1834

and, if so, (2) the appropriate civil penalties that should be assessed
against the respondent for the alleged violations based upon the criteria
set forth in sectTon Tfo(i.)--of the Act. Additional issues raised by the
parties are identified and disposed of in the course of these decisions.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (2) 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 d·emonstrated 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 ~ ~·
2.

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

3.

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

Stipulations
The following stipulations were agreed to by the parties in these
dockets:
1.

Respondent's mining operations are subject to the provisions of the

Act.
2. Payment of the assessed civil penalties will not affect respondent's
ability to continue in business.
3. Respondent demonstrated good faith by achieving rapid compliance
after notification of the cited violations.
4.

Respondent's size is 8,368,785 production tons or man-hours per

year.
5. Respondent's size with respect to the Klein Quarry is 19,049 production tons or man-hours per year.
6. The gravity factor was properly assessed for the citations in
question.

1835

Findings and Conclusions
Independent ContF-acto-r--Defense
In these dockets, respondent asserted that the violations which prompte~
the issuance of the citations resulted from actions by certain independent
contractors. Further, respondent asserted that it exercised no control
over the work or safety of the contractors' employees and that petitioner's
attempts to penalize the respondent by imposing civil penalties for violations committed by the contractors is an abuse of discretion.

The parties stipulated that Citation No. 190840 is attributable to the
activities by an independent contractor hired by the respondent to perform
work at its limestone quarry in Gooden, Missouri. Further, after taking
testimony and evidence concerning Citationi No. 178827, petitioner conceded
that this citation is also attributable to an independent contractor (Tr. 52).
Respondent's assertion that the Secretary abused his enforcement discretion by proceeding against the respondent mine operator is rejected. It is
clear from the present state of the law that an owner-operator of a mine
subject to the provisions of the Act can be held respon_§_ible for any violations committed by its contractor. MSHA v. Old Ben Coai Company, VINC 79-119
(October 29, 1979); MSHA v. Monterey Coal Company, HOPE 78-469 and 78-476
(November 13,1979).
Docket No. CENT 79-171-M
104(a) Citation No. 190840, issued on February 27, 1979, cites an alleged
violation of 30 C.F.R. § 56.4-2, ·and states as follows: "Signs warning
against smoking and open flames were not posted at the contractor (stripping
crew) fuel storage area."
30 C.F.R. § 56.4-2 provides as follows: "Signs warning against smoking
and open flames shall be posted so they can be readily seen in areas or
places where fire or explosion hazards exist."
Fact of Violation
In support of the citation in question, petitioner presented the testimony of MSHA inspector Darrell L. Ragsdale who confirmed that he issued the
citation after conducting an inspection of the mine. He also testified as
to the facts and circumstances which prompted the issuance of the citation
(Tr. 79-85), was cross-examined by respondent's representative, and responded
to several questions p~sed by me (Tr. 85-104, 133-134).
In defense of the citation, respondent presented the testimony of
Mr. Dwight Dozier, one of its sales representatives. He testified as to the
activities of the independent contractor loader operators who were working
around the fuel storage area (Tr. 104-115).

1836

I find- that the Secretary has established the fact of violation by a preponderance of the evidence. It is clear from the testimony and evidence presented by the petitioner ·in:- s~pport of the citation that the required warning
sign was not posted and respondent has not rebutted this fact. Failure to
post a sign warning against smoking and open flames on the diesel fuel storage
tank constitutes a violation of the cited safety standard (Tr. 203-205). The
citation is AFFIRMED.
Gravity
The inspector testified that one of respondent's employees and four contractor employees were in the "area" of the diesel fuel storage tank, and
that they were approximately 400 to 500 yards away. He assumed that the
dozers and scrapers being used by the contractor employees were using diesel
fuel from the storage tank, but he did not ascertain how much fuel was in the
tank and upon inspection of the tank, he found it to be in good condition.
The tank was a portable 3,000-gallon capacity tank, and the inspector indicated that a rupture and an ignition would have to occur before any hazard
was presented. Based on the good condition of the tank, the fact that there
is no indication or evidence that anyone was smoking, the fact that the
equipment being operated was some great distance away from -the fuel tank,
and the fact that the inspector observed no fueling taking place, I can only
conclude that the failure to post a warning sign was a nonserious violation
(Tr. 205-206).
Negligence
Testimony by the inspector reflected that respondent's loader operator
obtained his fuel from a source other than the cited fuel tank. Further, it
is clear to me that the citation resulted from the acts of the independent
contractor and that none of respondent's employees were expoesed to any
hazard. I have also considered the fact that respondent's plant is mobile;
that is, it is moved from site to site and that respondent often does not
have personnel present while work is being performed by the contractor.
Considering all of these circumstances, I find no negligence on the part of
the respondent with respect to the citation in question. I conclude that
the respond.ent could not have reasonably known of the condition cited (Tr.
206-207).
Docket No. CENT 79-108-M
104(a) Citation No. 178827, issued on February 22, 1979, alleges a violation of 30 C.F .R. § 56.9-ll, and states as follows: "The windshield of
the JD 644-B front end loader was cracked from top to bottom extending left
to right across the entire glass. The vision of the driver was impared
[sic]."
30 C.F.R. § 56.9-ll provides as follows: "Cab windows shall be of
safety glass or equivalent, in good condition and shall be kept clean."

1837

Fact of Violation
-~

-·

-

--

MSHA inspector-William L. Worsham testified as .to the cracked windshield
which he observed and respondent does not dispute the fact that the windshield in question was in fact cracked. As a matter of fact, plant manager
Dave Short confirmed the fact that the windshield in question was cracked.
Section 56.9-11 requires that cab windows be maintained in good condition.
Although the evidence establishes that the loader windshield was safety
glass, the fact is that it was cracked and the extent of the crack resulted
in the impairment of the vision of the loader operator. Under the circumstances, I conclude that the windshield in question was not in good condition and I find that the petitioner has established a violation (Tr. 21-34,
42-50, 52-61, 65-67, 71-79). The citation is AFFIRMED (Tr. 194-195).
Gravity
The extent of the crack in the loader windshield in question, and the
inspector's testimony that the vision of the loader operator was impaired,
supports a conclusion that the violation was serious. Although the evidence
reflects that only one truck was loaded on the day in question and that the
truck driver was not directly exposed to any hazard or·be1ng struck by the
loader, the fact is that the evidence and testimony adduced reflected that
as many as 12 to 14 trucks may be loaded on any given day, and the operation
of a loader with a cracked windshield which impairs the vision of the operator presents a hazardous condition and situation. I conclude that the condition of the windshield constituted a serious violation (Tr. 196).
Negligence
In this case, the evidence establishes that respondent's Plant Manager
Short was also in charge of safety at the Klein Quarry. He candidly admitted that he was aware of the cracked windshield 2 days before the citation
was issued. However, he immediately advised the loader operator about the
condition, but indicated that he had no authority to remove the equipment
from service since it was the property of the contractor (Tr. 52, 56, 57-59).
Mr. Short also testified that when the plant is operating at the Klein Quarry
he is there on a daily basis, and he indicated that he was there the day
before the inspection in question and that the windshield __ was cracked
(Tr. 64).
Notwithstanding the fact that the loader in question was the property
of the contractor rather than the respondent, the fact is that the quarry
manager who was present and aware of the condition of the windshield was
respondent's employee. He was at the mine site when h~ discovered the
defective windshield and was aware of it until the day the citation issued.
Under these circumstances, I find that the condition cited resulted from
ordinary negligence on the part of the respondent (Tr. 200-201).

1838

History of Prior Violations
The parties "f3tiptilafea-that the respondent's history of prior violations
at the Gooden Quarry and Mill, Docket No. CENT 79-171-M, was "average" and
petitioner asserted that this prior history consists of two citations for
the 2-year period prior to the issuance of the citation on February 22, 1979.
The parties stipulated that respondent's prior history of violations
at its Klein Quarry, Docket No. CENT 79-108-M, consist of those listed in
Appendix A to the signed stipulation offered and received at the hearing.
That doctunent is an M_SHA computer printout which reflects that respondent
has paid $340 in civil penalties for seven citations issued during the period
February 23, 1977, to February 22, 1979.
Based on the size and scope of respondent's mining operations, I cannot
conclude that the aforesaid history of prior violations constitutes a poor
safety record. To the contrary, I conclude that it indicates a good safety
record on the part of the respondent, and this fact is reflected in the civil
penalties assessed by me in these proceedings.
Good Faith Compliance
The parties stipulated that the respondent demonstrated good faith by
achieving rapid compliance in the abatement of the conditions cited. I
accept this as my findings with regard to the citations in issue in these
proceedings.
Size of Business and Effect of Penalties on Respondent's Ability Remain in
Business
The parties presented information concerning the size and scope of
respondent's mining operations stated in terms of annual production tonnage
and man-hours. Respondent's representative asserted that respondent operates a ntunber of mining sites nationwide, and the parties agreed that respondent is a large operator. I adopt this as my finding in these proceedings.
The parties stipulated that payment of the assessed civil penalties will
have no effect on respondent's ability to continue in business, and I adopt
this agreement as my conclusion on this questi9n.
Alleged Failure by the Inspectors to Inform Respondent of Their Inspections
and to Afford Respondent's Representative of an Opportunity to Accompany the
Inspectors During Their Inspections
During the course of the hearing, respondent, for the first time,
asserted that the inspector did not follow the proper procedure because he
did not give the respondent's representative an opportunity to accompany him
during his inspections (Tr. 36). After careful review of the testimony and
circumstances surrounding the inspection at the Klein Quarry (Docket No. CENT
79-108-M), respondent's contention is rejected. The inspector believed that

1839

the loader operator was an employee of the respondent, and at the time of the
inspection he specificall_y ~~vised the employee of the purpose of his visit
and afforded him an op-portunity to accompany him. He also gave him an opportunity to call respondent's representative (Tr. 23-25, 30-32, 38). The loader
operator was the only other person at the mine site (Tr. 43), and the inspector testified that he always attempts to contact mine management during his
inspections, and that he has in the past contacted plant manager Dave Short
in this regard (Tr~ 45-46),. On the day in question, tbe quarry in question
was not in operation and the only activity going on was a loading operation
with a front-end loader, and the inspector testified that the loader operator advised him that after contacting respondent's office, he was advised
that no one wanted to come to the mine site (Tr. 47-49).
With respect to Docket No,. CENT 79-171-M, and the inspection which took
place at the Gooden Quarry and Mill, the inspector testified that he informed
Bill Stevenson, the front-end loader operator, of the purpos~ of his visit,
and Mr. Stevenson accompanied him during his inspection (Tr. 81)., He also
indicated that an employee of respondent's was at the facility (Tr. 93-94),
and respondent's sale representative identified Mr. Stevenson as an employee
of the respondent (Tr .. 105).. Under these circumstances, I conclude that
respondent was given a full opportunity to accompany the inspector, and its
assertion to the contrary is rejected.
Penalty Assessments
On the basis of the foregoing findings and conclusions, civil penal ties
are assessed as follows in these proceedings (Tr. 198, 211):
Docket No. CENT 79-108-M
Citation No.

Date

30 C.F.R. Section

Assessment

178827

2-22-79

56.9-11

$95

Docket No. CENT 79-171-M
Citation No,.

Date

30 C.F.R. Section

Assessment

190840

2-27-79

56.4-2

$20

ORDER
Respondent is ORDERED to pay civil penalties totaling $115 within thirty
(30) days of the date of these decisions.

-4

eorge • Koutras
Administrative Law Judge

1840

Distribution:

-- - -'

Rochelle G. Stern, Attorney, Office of the Solicitor, u.s. Department
of Labor, Room 2105, 911 Walnut Street, Kansas City, MO 64105
(Certified Mail)
Charles A. Bliss, Martin Marietta Aggregates Central Division, P.O.
Box 789, Cedar Rapids, IA 52406 (Certified Mail)

1841

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

(703) 756-6210/11/12

2, 3 JUL 1980

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

Civil Penalty Proceeding
Docket No. CENT 79-354-M
A.O. No. 23-00544-05002
Pacific Pit & Plant

v.
PENNSYLVANIA GLASS SAND
CORPORATION,
Respondent

DECISION AND ORDER
Appearances:

John O'Donnell, Esq., U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Jeffrey J. Yost, Esq., Berkeley Springs,
West Virginia, for the Respondent.

Before:

Judge Kennedy

Oral argument in this matter was heard in Courtroom 8
of the United States Courthouse, 3d and Constitution Avenu~,
Washington, D.C. on Thursday, July 16, 1980. The subject was
a motion to recuse the trial judge filed by counsel for
Pennsylvania Glass Sand Corporation, a wholly o:wned subsidiary
of the International Telephone and Telegraph Company,
a giant multinational corporation. The asserted ground for
disqualification was a claimed prejudicial prejudgment of
the merits of this proceeding that stemmed from a review by
the judge of the facts set forth in the parties' prehearing
submissions. The results of this review were stated in
the trial judge's order of May 14, 1980 which directed the
parties to show cause why in the absence of any dispute of fact
or issue of credibility necessitating an evidentiary hearing
the violation charged (an alleged inadequacy of the foot
brakes on a 20 ton capacity pit truck) should not be settled
by the payment of a penalty of $60, instead of the $275
proposed by the government. This in turn was predicated
on the judge's finding that while the violation charged was

1842

potentially serious, the brakes were mechanically sound and
were rendered inadequat--e due solely to circumstances beyond
the control and without the fault or negligence of the operator.
In a demonstration of professional ineptitude and
incompetence·previously unsurpassed in the experience of the
trial judge, counsel for the operator, Mr. Yost, a member
of the bar of the state of West Virginia and a 1972 graduate
of the University of West Virginia Law School, admitted
on the record in open court he had never read and could
not recite either the facts or the holding of the principal
precedent relied upon in support of hls motion. l/
As the record shows, the case, Withrow v. Larkin,
421 U.S. 35 (1975), not only does not support the operator's
ciaim, but on the contrary held that pretrial review by
an administrative adjudicator of evidence submitted during
1/ This and other professional ,and ethical lap_i:;es committed
by Mr. Yost in the course of this proceeding sliould be of
concern not only to the bar of the State of West Virginia
but also to the Commission and his supervisor, the General
Counsel of Pennsylvania Glass Sand Corporation. The record
shows that in his zeal to create the impression the trial
judge improperly considered a mine inspector's statement
in arriving at the evaluation of May 14, Mr. Yost· attempted
to conceal the fact that he had been in possession of the
statement since December 1979. It may be that Mr. Yost
is more to be pitied than censured and should not be
singled out for his devotion to the transcendental ethic
of the adversary system, namely that winning is not .everything, it is the only thing. Certainly the Commission,
the bar associations and, if reports are to be believed,
the Supreme Court have shown a high tolerance for ethical
lapses of equal if not greater magnitude. Schwarzer,
Dealin With Incom etent Counsel--The Trial Jud e's Role,
Harv. L. Rev.
; Oa es, La!Yer an Ju ge:
The Ethical Duty of Competency in Fina Report, Annual
Chief Justice Warren Conference on Advocacy in the United
States, 73 (1978). Distinguishing half truths from whole
lies is an occupational hazard for the legal profession
in general and for most lawyers in particular. Bok,
L~ing:
Moral Choice in Public and Private Life 154-173
( antage Books 1978).

1843

the course of a pretrial investigation of the matter is
no bar to the adjud~~~tor's participation in a later
evidentiary hearI:"Iig under the fair trial/ due process clauses
of the constitution.. Thus, the Court held:

* * * The mere exposure to evidence presented in
nonadversary investigative procedures is insufficient
in itself to impugn the fairness of the [judge] at
a later adversary hearing. Without a showing to
the contrary, [judges] "are assumed to be men of
conscience and intellectual discipline, capable
of judging a particular controversy fairly on the
basis of its own circumstances." United States
v. Morgan, 313 U.S. 409, 421 (1941). 421 U.S. at 55.
The Court further held that the fact that an adjudicator on
the basis of prehearing submissions issues "formal findings
of fact and conclusions of law asserting" there is "probable
cause to believe" a violation of law has occurred is no bar
to the judge's conduct of a subsequent adversary hearing
in the absence of clear and convincing eviden-ce· that "the
risk of unfairness is intolerably high." 421 U.S. at 58.
The general rule is that,
The risk of bias or prejudgment in this sequence
of functions has not been considered intolerably
high or to raise a sufficiently great possibility
that the adjudicators would be so psychologically
wedded to their complaints that they would consciously
or unconsciously avoid the appearance of having
erred or changed position . . . The initial . .
determination of probable cause and the ultimate
adjudication have different bas.es and purposes.
The fact that the same [judge] makes them in
tandem and that they relate to the same issues
does not result in a procedural due process violation. 421 U.S. at 57-58.
In conclusion, the Court held, "This mode of procedure does
not violate the Administrative Procedure Act, and it does
not violate due process of law." 421 U.S. at 56. The Court
also cited with approval Professor Davis' statement that the
APA "does not and probably should not forbid the combination
with judging of . . . [the function of] negotiating settlements
. . . " Id. at n. 24. Indeed, as counsel for the Secretary
pointed out, the Connnission's Rules and the APA specifically
recognize the power of the trial judge to propose and hold

1844

settlement conferences. Rule 54(a)(6). The slight
"contamination-" of the adjudicatory function that results
from a trial judge-' s l>a:tticipation in settlement discussions
has never been deemed sufficient to require disqualification.
421 U.S. at 56 n. 24.
This came as somewhat of a shock to Mr. Yost, as I
am sure it will to some of his more competent colleagues,
many of whom labor under the impression that admissions
contained in pleadings and other writings and documents
filed in response to a formal pretrial order are not
"evidence". As McCormick points out such "judicial
admissions" are not hearsay and need not be offered in
evidence at an adversary hearing before they may be considered
as probative of the facts asserted. McCormick On Evidence,
§ 265 (1972 ed.).
The Act and the Connnission's rules of
practice clearly provide for pretrial discovery at the
instance of the trial judge. Thus, section 113(e) of the
Act and Rule 58 empower the trial judge to "compel the
attendance and testimony of witnesses and the production
of books, papers, documents, or objects and [tp]-order
testimony to be taken by deposition at any sta~e of the
proceedings before [him]." (Emphasis supplied.
There is no merit, therefore, in the claim that a
trial judge's pretrial involvement in the development of
the facts and formulation of the issues to be tried~or
determined without a trial, is an "extrajudicial" activity
that creates an appearance of bias or automatically
disq'ualifies him from participation in hearing and deciding
the matter. The view that the lawyers are in absolute
control of the proceeding, and the trial judge powerless
to require the parties to show a need for an evidentiary
hearing or to suggest any other procedure for informal
adjudication in the intarest of a just, speedy and
inexpensive disposition of the matter, is a myth that
has long since been discredited. Rule 614 of the Federal
Rules of Evidence when coupled with the authority conferred
by section 113(e) of the Act, is clear legislative
recognition of the fact that, unless they choose to
be, the law judges are not imprisoned within the case as
made by the parties. Evidentiary hear.ings are for
the purpose of resolving genuine issues of credibility,
veracity or disputes over material facts, not for discovering
whether such issues exist. Nor are they for the purpose of
allowing the lawyers to engage in irresponsible and wasteful
exercises in amateur or obfuscatory advocacy before a captive
audience.

1845

In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme
Court held that while financial cost alone is not a controlling
factor in determining -whether due process requires a particular
procedural safeguard such as an evidentiary hearing prior
to an administrative decision, the government's interest,
and hence that of the public, in conserving scarce fiscal
and administrative resources, is a factor that must be weighed
in determining the necessity for such a hearing. 424 U.S.
at 348. The Court noted:
At some point the benefit of an additional safeguard to the· individual affected by the administrative
action and to society in terms of increased assurance
that the action is just, may be outweighed by cost . .
The ultimate balance involves a determination as to
when, under our constitutional system, judicial-type
procedures must be imposed upon administrative action
to assure fairness . . . The judicial model of an
evidentiary hearing ·is neither a required, nor even
the most effective, method of decisionmaking in
all circumstances. The essence of due pr0c-ess is
the requirement that "a person in jeopardy of
serious loss be given notice of the case against
him and opportunity to meet it." Id.
Here, a conservative estimate of the cost of an evidentiary
hearing in St. Louis, Missouri, the point requested by the
operator and therefore the situs required under the
Cormnission's rules and decisions, was $2,000 exclusive of
the salaries of the participants. Furthermore, a breakdown
of this estimate showed the cost allocable to the operator,
exclusive of the salaries paid its prospective witnesses,
would approximate $700. This cost when weighed against
even the proposed penalty of $275 shows how grotesquely
disproportionate the cost of evidentiary hearings can be
to the deterrent value of the penalty. See also, Cut Slate,
Inc., 1 FMSHRC 1039 (1979). Unless penalties are increased
to compensate the public for the cost of such unnecessary
or improvident hearings, I believe they should be a last,
not a first, resort.
Counsel contended, and he said the Commission agrees,
that because the 1977 Mine Safety Law says an operator and
the Secretary are to be afforded the "opportunity" for an
"on the record" hearing as provided under section 5 of
the APA, 5 U.S.C. § 554, a confrontational type hearing is a
jurisdictional prerequisite to a penalty assessment

1846

unless both counsel agree to settle or that there are no
disputed issues__ o:Cmat_erial fact. Peabody Goal Com-tan~, 2
FMSHRC 1035 (1980). I believe this. is a substantial y air
reading of Peabody, but note the Commission beat a hasty
retreat from the rigidity of Peabody in New Jersey Pulverizing,
2 FMSHRC
, July 2, 1980. In the latter case, the Commission
denied the-8ecretary's punitive, unilateral demand for an
evidentiary hearing in the face of opposition from both the
trial judge and the operator. Although the Commission's
decision does not mention it, the judge's reduction in the
amount of the penalty in dispute was only $16. I believe
the trial judges and the Commission must be alert to prevent
use of the evidentiary hearing by either the solicitor or the
operator to coerce the trial judge into rubber stamping·
improvident settlement proposals. Whenever, and for whatever
reason, the Commission tilts the scales 0£ procedural
fairness, it risks doing itself and the cause of administrative
justice a serious disservice.
Furthermore, for the reasons set forth in my decision
after remand in Peabody, 2 FMSHRC __ , July 11-, ·1980, I
emphatically do not agree with the operator's claim that "an
administrative law judge does not have the authority to
require parties to show there is a genuine issue of material
fact or question of credibility before he must grant them an
evidentiary hearing."
The idea that fundamental due process accords a party
the r1ght, if he chooses to exercise it, to have every item
of evidence submitted via a witness in open court subject to
full cross-examination has never been the rule in administrative
proceedings. In Richardson v., Perales, 402 U.S. 389 (1971),
the Supreme Court held the APA mandates cross-examination
only to the extent that it "may be required for a full and
true disclosure of the facts" and does not preclude a requirement
for the submission of all or part of the evidence in written
form, 402 U.S. at 409. Certainly, if such evidence is
admissible.as part of the "on the record" hearing, it must
be admissible as part of the prehearing record particularly
when it is received subject to the parties' right to show a
need for cross-examination.
Directly in point on the claim that the APA and the
Mine Safety Act mandate an opportunity to cro~s-examine
before any item of information may be treated as "evidence"
is United States v. Florida East Coast Railwai Co., 410 U.S.
224 (1973). There the Court was confronted with the necessity
of defining the meaning of the term "hearing" as used in the
ICC Act. The Court found:

1847

The term "hearing" in its legal context undoubtedly
has a host of meanings. Its meaning undoubtedly
will vary--depending on whether it is used in the
context of a rulemaking type proceeding or in the
context of a proceeding devoted to the adjudication
of particular disputed facts. . . [W]e think that
reference to [the Administrative Procedure Act], in
which Congress devoted itself exclusively to questions
such as the nature and scope of hearings,· is a
satisfactory basis for determining what is meant
by the term "hearing" used in another statute. Turning
to [the APA], we are convinced that the term
,.'hearing" as used therein does not necessarily embrace
either the right to present evidence orally and to
cross-examine opposing witnesses, or the right to'
present oral argument to.the agency's decisionmaker.

*

*

*

·k ·k ·k even where the statute requires that [the
proceeding] take place "on the record af:t:er-o:pportunity
for an agency hearing," thus triggering the applicability
of § 556, subsection d provides that the agency may
proceed by the submission of all or part of the evidence
in written form if a party will not be "prejudiced
thereby". Again the Act makes it plain that a specific
statutory mandate that the proceedings take place on
the record after hearing may be satisfied in some
circumstances by evidentiary submission in written
form only.

*

*

*

*

We think this treatment of the term "hearing" in the
Administrative Procedure Act affords a sufficient basis
for concluding that the requirement for a hearing . . .
did not by its own force require the Connnission either
to hear oral testimony, to permit cross-examination
of Commission witnesses, or to hear oral argU.ment.

410 U.S. 240-241.
Since Florida East Coast establishes that a statutory requirement for an APA "hearing" may be satisfied without a trial
it simply is not true that valid adjudicative actions
cannot be taken under the Mine Safety Act in the absence of
an oral hearing at which the parties are afforded the opportunity
to cross-examine witnesses. For this reason, the trial
judge has repeatedly suggested that under its de novo

1848

(-"

authority to "assess" penalties (section llO(i)) and to
"approve" proposals to "compromise, mitigate, or settle"
penalties (sectioh ·tIO{k)), the Commission encourage the use
of informal adjudicatory procedures involving written submissions
to effect a just, speedy and inexpensive disposition of
cases where the amounts involved do not warrant the convening
of a trial-type hearing or there is no genuine dispute of
material adjudicative fact.
The choice is not between swatting flies with a sledge
hammer or rubberstamping improvident settlement proposals,
but the use of traditional pretrial techniques to screen
out cases that do not merit the time and expense of a trialtype hearing and to dispose of such cases on written submissions
or at settlement conferences. See e.g. Rehublic Steel Corp.,
2 FMSHRC 666 (March 7, 1980); Jones & Laug lin Steel, 2 FMSHRC
678 (March 11, 1980); Consolidation Coal Co., 2 FMSHRC 725
(March 19, 1980); Consolidation Coal Co., 2 FMSHRC 1084
(May 9, 1980); U.S. Steel Corporation, 2 FMSHRC 1115 (May 20, 1980);
Missouri Gravel Co., 2 FMSHRC 1124 (May 22, 1980); Call & Ramsey
Co., 2 FMSHRC 1237 (May 14, 1980); Beckley Coal __Co. and
Kanawha Coal Co., 2 FMSHRC 1658 (June 27, 1980); Missouri
Gravel Co., 2 FMSHRC
(July 8, 1980).
Just as war is too important to be left to the generals
so also justice is too important to be left to the selfserving interests of the lawyers. Professor Maurice Rosenberg,
in his Jackson Lecture before the National College of State
TriaL Judges, has effectively shown that formal rules,
actual practices, and most procedural innovations in recent
times have reflected a gain in judges' power and activity
"at the expense of the lawyers' role as the mover and director
of litigation." Nothing, he believes, will slacken the
trend toward judicial activism. M. Rosenberg, The Adversary
Process in the Year 2000, 1 Prospectus, 5, 15-18 (1968).
That judicial activism is necessary if we are to have a
rule of law rather than a rule of lawyers is underscored by
the following comments by Chief Judge Irving Kaufman of the
Second Circuit:
our current emphasis on early judicial
intervention is . . . the culmination of the
efforts of many of our greatest legal tqinkers
to induce the judges to . . . take an active part
in the control of litigation . . . Contrary
to what most of us have accepted as gospel, a
purely adversary system, uncontrolled by the
judiciary, is not an automatic guarantee that
justice will be done.

·k ·k ·k

1849

...

1-7.~

The Philosoph of Effective Judicial Su ervision Over Liti ation,
F. R. D. 207, _?O~__, __ 21L_ 1 2 .
In 1906, Roscoe Pound shocked the lawyers of that time
by speaking derisively of the cherished adversary system as
the "sporting theory of justice" and documented its inefficiencies
and intricacies. He also advocated the removal of certain
matters from the courts to administrative tribunals where
they could be subjected to disposition in a more efficient,
if less adversary, fashion. Pound's attack on the adversary
system was vigorously rejected by the bar and his ideas did
not receive the unqualified endorsement of the ABA until
1976 when the Chief Justice adopted them as his own. At
that time, in his appearance before The National Conference
on the Causes of Popular Dissatisfaction with the Administration
of Justice, the Chief Justice offered solutions to the
stultifying delays and staggering expense of modern litigation
that centered around more judicial control of the adversary
process. Burger, agenda for 2000 A.D.--A Need for Systematic
Anticipation, 70 F.R.D. 83 (1976).
__
After this enlightenment, Mr. Yost, persuaded his
position was based on an almost total misunderstanding of
the relevant facts and applicable law, elected to withdraw
his motion to recuse 2/ and to move for approval of a
settlement in the amount of $60.00--the amount proposed
in the show cause order of May 14, 1980: Mr. O'Donnell,
counsel for the Secretary concurred, whereupon the trial
judge granted both motions from the bench and ordered the
matter dismissed.
The premises considered, it is ORDERED that the bench
decision be, and hereby is, ADOPTED and CONFIRMED as the

~/
This made it unnecessary to decide whether the motion
was filed in good faith or was frivolous and filed for the
purpose of causing vexatious delay and harrassment of the
administrative process. I also pass the question whether
an adjudicatory agency has the power to tax attorney fees
and costs against a party who has litigated in bad faith
or may assess those expenses against counsel who willfully
abuse the.administrative process. See,.Roadway Exzress,
Inc. v. Pi.per, et al.,
U.S.
, slip op. 11-1,
decided June 23, 1980. -----

1850

final disposition of this matter and upon payment of the
settlement agreed upon, $60.00, on or before July 30, 1980,
the captioned matter be-DISMISSED.

Jo eph B. Kennedy
Administrative Law
Distribution:
Robert J. Lesnick, Esq., U.S. Department of Labor, Office
of the Solicitor, Rm. 2106, 911 Walnut St., Kansas Cy.,
MO 64106 (Certified Mail)
John H. O'Donnell, Esq., U.S. Department of La~Qr, Office
of the Solicitor, 4015 Wilson Blvd., Arlington, VA
22203 (Certified Mail)
Jeffrey J. Yost, Esq., Pennsylvania Glass Sand Corp., P.O.
Box 187, Berkeley Springs, WV 25411 (Certified Mail)

1851

1::

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

2 3 JUL 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket Nos.
VA 79-41
VA 79-43
NORT 79-58-P
NORT 79-87-P

Petitioner

v.
PEGGY-0 COAL COMPANY, INC.,
Respondent

Assessment Control Nos.
44-04680-03007 v
44-04680-0300'\ v
44-04680-03002
44-04680-03005 v

No. 4 Mine

DECISION
Appearances:

Sidney Salkin, Esq., and Covette Rooney, Attorney, Office of
the Solicitor, U.S. Department of Labor, for Petitioner;
James Ball, Vansant, Virginia, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 5, 1980, a hearing in the
above-entitled proceeding was held on May 8, 1980, in Richlands, Virginia,
under section 105(d) of the Federal Mine Safety and Health Act of 1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 103-118):
This consolidated hearing involves four Petitions for
Assessment of Civil· Penalty filed by the Secretary of-Labor
seeking to have civil penalties assessed for a total of
13 alleged violations of the mandatory health and safety
standards by Peggy-0 Coal Company, Incorporated. The Petition in Docket No. NORT 79-58-P was filed on January 19, 1979,
and alleges seven violations. The Petition in Docket No.
NORT 79-87-P was filed on April 30, 1979, and alleges one
violation. The Petitions in Docket Nos. VA 79-41 and VA 79-43
were both filed on July 10, 1979, and allege one and four
violations, respectively. The issues in a civil penalty case
are whether violations occurred and, if so, what civil penalties should be assessed based on the six criteria contained
in section llO(i) of the Federal Mine Safety and Health Act
of 1977. In this case two of those criteria can be considered

1852

on an overall basis and I shall make one set of findings for
those first t_w_o .criteria, which are the size of the respondent's business and whether the payment of penalties would
cause respondent to discontinue in business. First, as to
the size of respondent's business, the record shows that at
the time the citations and orders in this proceeding were
written, the operator had two coal mines, the No. 4 and the
No. 5. Each of the mines produced about 150 to 200 tons of
coal on an average daily basis and employed between eight and
nine miners. At the present time, the No. 4 Mine is no
longer in operation, but respondent does have 'in operation
the Nos. 8 and 9 Mines. The No. 8 Mine produces about
100 tons of coal per day and the No. 9 produces approximately
150 to 200 tons of coal per day. Respondent sells its coal
to Commonwealth Resources under a contract which requires
respondent to sell on a fixed amount per ton. Therefore, on
the basis of those facts I find that respondent is a small
company and that any penalties assessed in this case should
be in a low range of magnitude to the extent that the penalties are determined by the criterion of the size of respondent's business.
The operator testified that he is not in as good a
financial condition at this time as he'd like to be and he
indicated that while he would be able to come up with money
assessed in the form of penalties that it would be difficult
for him to do so. On the basis of that information I con_clude that the payment of penalties would not cause the
respondent to discontinue in business so long as penalties
are reasonably assessed under the six criteria.
The remaining four criteria, history of previous violations, gravity, negligence, and good faith effort to achieve
rapid compliance will each have to be considered separately
for each violation.
Contested Proceeding
Docket No. NORT 79-87-P
Only one violation is alleged in Docket No. NORT 79-87-P.
That alleged violation is based on Citation No. 322486 dated
October 24, 1978, alleging a violation of section 75.200.
Section 75.200 requires the operator of each coal mine to
file with MSHA a roof-control plan applicable to'the situation in each mine. In this proceeding the roof-control plan
was introduced as Exhibit 2A. A violation of section 75.200
occurred because in the operator's battery charging station,
which was located in the No. 6 entry inby survey station
No. 248, the inspector observed 18-inch roof bolts in an area
measuring approximately 80 feet by 20 feet. .The roof-control

1853

plan requires that bolts no shorter than 30 inches shall be
used in the roof-control pattern. On October 24, 1978, when
the inspector_wrote-Citation No. 322486, he found that only
10 of the bolts in the battery charging station were 30 inches
in length. The inspector did not make a detailed diagram of
the way the bolting pattern appeared on October 24. When the
inspector wrote Citation No. 322486, however, he provided
that the operator should place 30-inch roof bolts as required
by the roof-control plan in the battery charging station by
October 27, 1978. When the inspector returned on October 27,
1978, he did not find that an appropriate number of 30-inch
roof bolts had been installed. He believed that the operator
had made little or no effort to abate the violation of section 75.200 cited in Citation No. 322486. Consequently, he
wrote an order of withdrawal requiring the operator to
install 30-inch roof bolts in accordance with the roof-control
plan.
When the inspector returned on October 30, which was a
Monday, following the writing of the order on the preceding
Friday, he found that 30-inch roof bolts had been installed
on 5-foot centers.as required by the roof-control plan and
therefore he terminated the order of withdrawal. The roofcontrol plan does indicate on page two of Exhibit 2A that the
roof bolts must anchor in at least 12 inches of firm strata.
A roof-control expert has testified in this proceeding that
that provision should be interpreted to mean that a 30-inch
roof bolt is always required as a minimum length and that
30-inch roof bolts must anchor into at least twelve inches of
firm roof support. It was the inspector's belief and also
the belief of the roof-control expert that the violation
alleged in Citation No. 322486 was serious because of respondent's failure to install a proper number of 30-inch roof
bolts.
The inspector stated that when he came back on October 27
to check this area, nine roof bolts had been installed of the
required 30-inch length, but they had been instatled where
nine 18-inch roof bolts had been removed. The inspector's
Exhibit 23 shows that there were 31 eighteen-inch roof bolts
in existence in the battery charging station area and nine of
those indications, namely Nos. 7, 12, 13, 14, 15, 16, 18, 26,
and 27 did have 30-inch roof bolts installed beside the holes
where the 18-inch roof bolts had been removed. So by
October 27, or 3 days after the citation was written, respondent had installed nine bolts in addition to the 10 which the
inspector observed on October 24 •. The inspector estimated
that 60 roof bolts would have been required in this area and
the roof control expert testified that 64 thirty-inch bolts
should have been installed in this area. Consequently, on

1854

October 27, 1978, there were still lacking in this area at
least 40, ·...thirty-inch- roof bolts. Based on the facts that I
have just recited I think that the record justifies a finding
that this was a serious violation.
Respondent was represented by the owner in this proceeding and the owner has testified that he did not install any
more bolts in the battery charging station between October 24,
1978, when the citation was written, and October 30, 1978,
when the order of withdrawal was terminated. The owner states
that he did install about eight or 10 roof bolts in a 10- by
15-foot area which had been cited by the inspector in his
order as having been completely unsupported (Exh. 3).
I find that the inspector's testimony in this instance
must be given more weight than that of the owner because the
inspector had detailed notes to document his findings and I
do not believe the inspector would have fabricated what he
saw and would have put it in documentary form without having
a visual basis for it. Moreover, the inspector's findings
were supported by the testimony of Inspector Matney, who at
that time was a trainee and who is now a full-fledged MSHA
inspector. Consequently, I find that I must make my findings
on the basis of the inspector's statements in this instance.
Coming to the criterion of negligence, the operator knew,
and is required to know, the provisions of his roof control
plan; consequently, he should have installed the necessary
30-inch roof bolts.
It should be noted for the record that the area where
the battery-charging station was situated had been increased
in height by the removal of some of the roof, so that where
the ordinary mining height in this area was 44 inches, the
roof of the battery-charging station had been blasted out to
make an area approximately 7 feet in height. In doing the
blasting work the operator had, of course, destroyed the
original roof support pattern and was obligated to_ install
30-inch roof bolts, on 5-foot centers just as if this were
a new area from which coal had been removed.
It has been the operator's defense in this case that the
18-inch roof bolts had been installed for the purpose of
holding the wires which carried the electricity needed to
operate the battery-charging stations, of which there were
three in this area. While that may have been his purpose in
putting in the 18-inch roof bolts, the fact remains and the
evidence shows that the 30-inch roof bolts had not been
installed as they should have been. The inspector has indicated that there would have been no objection to the operator's having installed 18-inch roof bolts to support his

1855

wire provided he had first installed 30-inch roof bolts as
required_ by the roof-control plan. The inspector claims that
the reason Ure·· op~rator had not put in 30-inch roof bolts was
that he felt that the sandstone in the roof of the batterycharging station was extremely hard and a lot of bits were
used up in drilling these holes and that the operator used
18-inch roof bolts, instead of 30-inch roof bolts, as a
matter of economics rather than for the purpose of hanging
the wires on them.
There is no reason to doubt the operator's statement
that he put fn 18-inch roof bolts for the purpose of supporting his wire. The fact remains that he had not put in
30~inch roof bolts which were required to make this area safe.
Three scoops were used in the mine to load coal and transport
it from the face to the conveyor belt; consequently, at
various times, three different scoop operators came to the
battery-charging station to get new batteries or to obtain
recharged batteries. Therefore, the operator's failure to
support this area properly was the result of gross negligence.
We come now to the criterion of whether the operator
showed good faith effort to achieve rapid compliance. The
record shows that he did not demonstrate good faith because he
not only didn't make any effort to install the proper number
of 30-inch roof bolts between October 24 and October 27, but
did not install them at all until his mine was closed with a
withdrawal order. Consequently, it's impossible to find that
.he showed good faith in abating this violation of section
75.200.
Exhibit 5A shows that the No. 4 Mine had two violations
of section 75.200 in 1977 and two violations in 1978.
Although we have two exhibits in the proceeding which are
supposed to cover different portions of the years both of the
exhibits show violations for some of the same time period.
So it's a little bit confusing to try to determine the number
of violations for other than 1977 and 1978. I always look
upon violations of section 75.200 as being the worst type of
violation that a company can have on a repetitious basis. So
I think that even two violations each year is an excessive
number of violations of section 75.200 and therefore under
the criterion of history of previous violations I shall assess
a $50 penalty on that criterion alone. Respondent's failure
to show a good faith effort to achieve rapid compliance should
be assessed at $150. The gravity of the violation should be
assessed $200, and the negligence involved should be assessed
at $300, or a total penalty of $700 for this violation of section 75.200 alleged in Citation No. 322486.

1856

After the bench decision set forth above had been rendered, the parties
entered into a set"tlell)ent conference which resulted in the making of motions
for approval of settlements as to the alleged violations in the remaining three
dockets. The bases for approval of settlements are discussed below.
Settlement Agreements
Docket No. VA 79-41
Order No. 322927 1/23/79 § 75.403
Order No. 322927 alleged a violation of section 75.403 for which the
Assessment Office proposed a penalty of $700. Respondent has agreed to pay
a reduced amount of $600. The circumstances believed to warrant the reduction of $100 is that, although the violation did exist, the operator had in
fact made preparations to clean up and rock dust the affected areas and had
assigned a man to do the work prior to the time the inspection occurred. At
the time the inspector observed the violation, the work had not been started,
but the preparations had been previously made. Counsel for the Secretary
believed that the aforesaid circumstances reduced the degree of gravity and
negligence sufficiently to justify the reduction (Tr. 11Z~fi3).
Docket No. VA 79-43
Order No. 322926 1/23/79 § 75.400
Order No. 322926 alleged a violation of section 75.400 for which the
Assessment Office proposed a penalty of $500. Respondent has agreed ·to pay a
reduced amount of $250. The grounds for the reduction are based on the facts
that the inspector observed no stuck rollers along the belt line where the
accumulations existed and the mine floor was wet. No known ignition sources
were present and there were no miners in the area. Additionally, the alleged
violation was promptly abated. In such circumstances, the gravity of the
violation was diminished. Therefore, a reduction in the penalty is justified
(Tr. 113).
Order No. 322515 12/28/78 § 75.316
Order No. 322515 alleged a violation of se9tion 75.316 for which the
Assessment Office proposed a penalty of $500. Respondent has agreed to pay
a reduced amount of $400. The alleged violation did not expose any miners
to respirable dust because no one was working in the area where curtains
had not been installed. There was immediate compliance because curtains
were installed within 45 minutes (Tr. 113-114).
Order No. 322516 12/28/78 § 75.316
Order No. 322516 alleged a violation of section 75.316 for which the
Assessment Office proposed a penalty of $500. Respondent has agreed to pay
a reduced amount of $400. The degree of negligence was reduced by the fact

1857

that the operator was prepared to install line brattice in each of the
affected work areas at t~_t_ime of the inspection. Gravity was not great
because, although--coai -had been shot, it had not been loaded. Abatement
was immediate; therefore reducing the penalty is justified.
Order No. 322517 12/28/78 § 75.319(1)
Order No. 322517 alleged a violation of section 75.319(1) for which the
Assessment Office proposed a penalty of $250. Respondent has agreed to pay
a reduced amount of $150. The inspector's order was based on his conclusion
that the operator had.been working two sections on a single split of air.
The inspector, however, did not observe two loading machines and the operator
denies that he intended to operate two sections on a single split of air. If
a hearing had been held, a credibility issue would have been raised. Therefore, a reduction in the penalty is warranted (Tr. 114).
Docket No. NORT 79-58-P
Citation No. 323809 8/1/78 § 75.1715
Citation No. 323809 alleged a violation of section·t.5.1715 for which the
Assessment Office proposed a penalty of $40. Respondent has agreed to pay a
reduced amount of $35. A reduction of $5 is warranted because the operator
explained to the Secretary that he did have a check-in and check-out system;
that he had records which indicated to him the identity of each miner working
underground. The only items he lacked were the tags which the regulations
require miners to wear (Tr. 81).
Citation No. 323810 8/1/78 § 75.1702
Citation No. 323810 alleged a violation of section 75.1702 for which the
Assessment Office proposed a penalty of $78. The respondent has agreed to
pay a reduced amount of $73. As justification for the reduced penalty, the
operator claims that he had just purchased a cigar prior to accompanying
the inspector inside the mine. The cigar was still wrapped and the operator
had no matches. The operator forgot that he was carrying the cigar until it
happened to drop out of his pocket (Tr. 82).
Citation No. 323811 8/1/78 § 75.1714
Citation No. 323811 alleged a violation of section 75.1714 for which the
Assessment Office proposed a penalty of $84. Respondent has agreed to pay a
reduced amount of $78. As justification for the reduction, the operator indicated to the Secretary's counsel that no hazard was involved in the fact that
two miners were not wearing their self-rescuers because of the fact that selfrescuers were in the area. The gravity of the violation was low inasmuch as
self-rescuers were promptly o_btained once their absence was pointed out
(Tr. 82).

1858

Citation No~ 323812 8/1/78 § 75.400
Citation No. 323812. alleged a violation of section 75.400 for which the
Assessment Office proposed a penalty of $114. Respondent has agreed to pay
a reduced amount of $94. As grounds for the reduction, the operator has
indicated to the Secretary's counsel that the wiring was intact in the area
of the coal accumulation and no stuck rollers existed along the conveyor
belt. The inspector agreed that there were no ignition sources which would
have been likely to cause a fire.
Citation No. 323813 8/1/78 § 75.516-2(a)
Citation No. 323813 alleged a violation of section 75.516-2(a) for which
the Assessment Office proposed a penalty of $106. Respondent has agreed to
pay a reduced amount of $98. As grounds for a reduction, the operator indicated to the Secretary's counsel that there was insulation on the wires used
as hangers and that the wires being suspended were in good condition. The
inspector confirmed the operator's claims. Therefore, the Secretary's counsel
believed that a reduction in the penalty is justified.
Citation No. 323814 8/1/78 § 75.1713-7(a)(3)
Citation No. 323814 alleged a violation of section 75.1713-7(a)(3) for
which the Assessment Office proposed a penalty of $66. Respondent has agreed
to pay a reduced amount of $61. A reduction is believed to be appropriate
because the operator and the inspector both agree that only one person was in
the area where the first-aid kit lacked a full complement of supplies and the
operator immediately corrected the deficiencies.
Citation No. 323817 8/2/78 § 75.1704-2(d)
Citation No. 323817 alleged a violation of section 75.1704-2(d) for
which the Assessment Office proposed a penalty of $48. Respondent has agreed
to pay a reduced amount of $43. The basis for the settlement in this instance
is that the operator has indicated to the Secretary's counsel, and the inspector agrees, that the operator did have a map and that he promptly posted the
map after the citation was issued, thus reducing the degree of negligence and
providing prompt abatement.
I find that respondent and counsel for the Secretary gave satisfactory
reasons for approval of the penalties agreed upon in their settlement conference and that the settlement agreements hereinbefore discussed should be
accepted.
Sutmnary of Assessments and Conclusions
(1) Based on all the evidence of record and the aforesaid findings
of fact, or the parties' settlement agreements, the following civil penalties
should be assessed:

1859

Docket No. VA 79-41
Order No. 322927 1/23/79 § 75.403 ••••••• (Settled) ••••••• $

600.00

Docket No. VA 79-43
Order No. 322515 12/28/78 § 75.316 •••••• (Settled) •• ~····
Order No. 322516 12/28/78 § 75.316 •••••• (Settled) •••••••
Order No. 322517 12/28/78 § 75.319(1) ••• (Settled) •••••••
Order No. 322926 1/23/79 § 75.400 •••••• (Settled) •••••••

400.00
400.00
150.00
250.00

Total Settlement _Penalties in Docket No. VA 79-43 •••••• $1,200.00
Docket No. NORT 79-58-P
Citation No. 323809 8/1/78 § 75.1715 •••••••• (Settled) ••• $
Citation No. 323810 8/1/78 § 75.1702 •••••••• (Settled) •••
Citation No. 323811 8/1/78 § 75.1714 •••••••• (Settled) •••
Citation No. 323812 8/1/78 § 75.400 • •••••••• (Settled) •••
Citation No. 323813 8/1/78 § 75.516-2(a) •••• (Set!J_ad).· ••
Citation No. 323814 8/1/78 § 75.1713-7(a)(3).(Settled) •••
Citation No. 323817 8/2/78 § 75.1704-2(d) •••• (Settled) •••

35.00
73.00
78.00
94.00
98.00
61.00
43.00

Total Settlement Penalties in Docket No. NORT 79-58-P •• $

482.00 ll

Docket No. NORT 79-87-P
Citation No. 322486 10/24/78 § 75.200 •••••• (Contested) •• $

700.00

Total Settlement and Contested Penalties in This Proceeding ••• $2,982.00
(2) Respondent, as the operator of No. 4 Mine, is subject to the Act
and to the mandatory safety and health standards promulgated thereunder.
WHEREFORE, it is ordered:
(A) The parties' requests for approval of settlements are granted and
the settlement agreements in Docket Nos. VA 79-41, VA 79-43 and NORT 79-58-P
are approved.
1/ On page 84 of the transcript, counsel for the Secretary stated that the
total proposed settlement was $470; however, a mathematical error was made
at that time, and is corrected in the tabulation above.

1860

..
...

(B) Pursuant to the parties' settlement agreements and the bench decision rendered in tb~ p.r_oceeding in Docket No. NORT 79-87-P, respondent shall,
within 30 days from the date of this decision, pay civil penalties totaling
$2,982.00 as set forth in paragraph (1) above.

~ C. ~~ff,.~~

Richard c. Steffey
~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Sidney Salkin, Esq., and Covette Rooney, Attorney, Office of the
Solicitor, U.S. Department of Labor, Room 14480-Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Peggy-0 Coal Company, Inc., Attention: James Ball, President, P.O.
Box 235, Vansant, VA 24656 (Certified Mail)

1861

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52C3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

2 3 JUL 1980
Civil Penalty Proceeding

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

Docket Nos.

Assessment Control Nos.

WEVA 80-124
Olga Mine

46-01407-03042V

Petitioner
v.
OLGA COAL COMPANY,
46-02437-03007V
WEVA 80-125
46-02437-03008
WEVA 80-126
46-02437-03009V
WEVA 80-127
Olga Preparation Plant

Respondent

46-05319-03009V
WEVA 80-128
Road Fork No. 2 Mine
DECISION
Appearances:

Barbara Krause Kaufmann, Attorney, Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
James R. Haggerty, Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 21, 1980, a hearing in the
above-entitled proceeding was held on May 20, 1980, in Bluefield,
West Virginia, under section 105(d) of the Federal Mine Safety and Health Act
of 1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 141-154):
The Petition for Assessment of Civil Penalty in Docket
No. WEVA 80-124 was filed on January 25, 1980, and seeks to
have a civil penalty assessed for an alleged violation of
30 C.F.R. § 75.200. In any civil.penalty proceeding the
issues are whether a violation of a mandatory health or
safety standard occurred, and, if so, what civil penalty

1862

should be assessed, based on the six criteria set forth
in section llO(i) of the Federal Mine Safety and Health
Act of 1977 .-The first matter to be considered in this proceeding
insofar as the contested case is concerned, is whether a
violation of section 75.200 occurred.
CONTESTED CASE
DOCKET NO. WEVA 80-124
I shall make some findings of fact based on the evidence
which I've heard today. Those findings will be set forth
under enumerated paragraphs.
1. On May 16, 1979, two coal mine inspectors went to
Respondent's Olga Mine. At that time, those two inspectors,
namely, James M. Oliver and Melvin L. Sperry, went to the
six north section, and specifically to the No. 2 pillar
split.
2. After examining the conditions that they saw in the
No. 3 pillar split, they jointly wrote Order No. 655146,
dated May 16, 1979, alleging that respondent had violated its
roof-control plan, and thereby had violated section 75.200,
because the continuous-mining machine had proceeded for a
distance of 35 feet so as to bring the controls of the
continuous-mining machine beyond roof supports.
3. Exhibit P-2 provides, in Paragraph 6, that "The
operator shall not advance the controls of the miner inby the
last row of bolts and additional bolting shall be done if
necessary to keep the operator in compliance and breaker
posts shall be extended to the last row of bolts during
mining of wing lifts."
4. The inspectors based the violation on measurements
of the intitial cut of coal in the pillar, and of the-area
off to the right of the bolted portion of the entry, as
shown in Exhibits P-3 and P-5. The violation here is not
the normal one which is encountered in this ·kind of situation,
because the area of unsupported roof under which the operator
of the continuous-mining machine proceeded was up the right
rib of the pillar block. The inspectors based their conclusion that the operator of the continuous-mining machine had
cut along the right rib in a straight direction, parallel to
the right rib, on the fact that they saw ripper cutting marks,
or bit marks, which were parallel to the right rib. They
additionally made measurements beyond the last row of roof
bolts to show that the last row of roof bolts was 17 feet
outby the face of the cut of coal which had been mined.

186.1

5. Respondent presented as.witnesses, the superintendent
of the mine and t_!!e~~perator of the continuous-mining machine
on the evening- shift, which was the one involved in the violation cited in the inspectors' order. The operator of the
continuous-mining machine testified that he did not go out
from under supported roof in order to cut the coal, as it is
depicted on Exhibit A. The operator of the continous-mining
machine stated that he had inadvertently started cutting a
wing off the initial split in the pillar, and had cut about
one and maybe a little more of another shuttle car of coal
when he realized that he had made a mistake. At that point,
he backed up the continuous-mining machine and moved it inby
that portion he had just cut, so as to begin cutting on the
wing at a more inby point in this No. 3 pillar split. The
operator stated that he had cut the coal out, as shown in the
green area on Exhibit A, by the end of his shift, at which
time the roof fall occurred. And he backed the continuousmining machine out of the No. 3 pillar split, and left the
section.
I think that those are the primary findingsI need to
make. A question of whether a violation of section 75.200
occurred must be based on the painful process of determining
which of the various witnesses' testimony is the most
credible. There are several considerations that must be made
for me to find that a violation of section 75.200 occurred;
and I shall explain them at this time.
The operator of the continuous-mining machine was unable
to explain satisfactorily why an operator with 4 years of
experience would have failed to recognize that he had no need
to start taking a wing of coal out of a block, midway in that
block, when he was aware of the fact that a previous operator
had cut through the left side of the pillar at an opening which
should have alerted the operator that the first wing of coal
to be cut would be in the same area to which he eventually
went, and which is shown on Exhibit A in green.
Another reason that I've elected to accept the inspectors' testimony as more credible than the operator's, is
that the operator's Exhibit A does not purport to explain
why the initial split had excess width, as compared with the
red area, where the operator of the continuous-mining machine
said he mistakingly made a cut. I cannot believe that the
inspectors could have measured the distance from the rib to
the last roof bolt on the left, in the four places shown on
Exhibits P-3 and P-5, without having established that the
right rib ran in a straight direction.

1864

:·:.•

-Additionally, the operator of the continuous-mining
machine made no statements concerning whether there were bit
marks running-paraiiel-to the right rib or running diagonally
as they should have run, if this red and green area shown
on Exhibit A had been mined in a diagonal fashion, as is
shown by the location of the continuous-mining machine on
Exhibit A.
Also, the inspectors measured the distance from the last
roof bolt to the mqst inby area of the pillar split with their
measuring tape and I do not believe they could have done that
without having been aware of whether there was. a roof fall in
the green area or not. As Ms. Kaufmann pointed out in her
closing statement, either there was not a roof fall there, or
it had been cleaned up before the inspectors arrived on the
scene.
There was no testimony by any expert to rebut the
inspectors' claim that the cuts of the continuous-mining
machine were parallel to the right rib. It is true that one
of the inspectors believed that the make of the confinuousmining machine was a Joy machine, when in actuality it was a
Lee Norse machine, but I did not hear anyone claim that the
Lee Norse machine would fail to make any marks parallel to
the rib, if the machine had been trammed while cutting in a
straight inby path, from the beginning of the pillar to the
last. portion that was cut by the continuous-mining machine.
There has been some discussion by respondent's attorney
as to the fact that Inspector Oliver seemed to think that this
pillar block was only 35 feet long, whereas it appears to have
been about 70 feet long. But I think that that is immaterial
when it comes to a question of whether the continuous-mining
machine was out from under permanent supports.
In any event, Inspector Sperry was very specific in
drawing Exhibit P-5, showing that ·he depicted the posts which
were in the crosscut outby the No. 3 pillar; and he said he
was positive that the drawing he has on Exhibit P-5 shows the
outby area of the pillar. The drawing, which he made very
carefully on Exhibit 5, does show all of the pillar which is
involved in the citation described in Order No. 655146.
For the reasons given above, I find that a violation of
section 75.200 occurred when the controls of the continuousmining machine were advanced beyond permanent supports.
Having found that a violation occurred, it is now necessary
to consider the six criteria. At least three of the criteria
may be given a general consideration, which will be applicable
to the settled cases as well as the contested case.

1865

:The parties e_ntered into some stipulations about at
least two of the criteria. It was stated that respondent
is subject t-&- the- ju-ri-sdiction of the Act, the Commission,
and the judges. It was also stipulated that the violation
alleged in Order No. 655146 was abated in a normal good faith
effort to achieve compliance.

It was stipulated that as to the size of responde~t's
business that it produces 530,342 tons of coal per year; and
since respondent is an affiliate of Youngstown Sheet & Tube
Company, it may be considered to be a large operator. To the
extent that the size of the operator is considered in assessin~
a penalty, I find that the penalty should be in an upper range
of magnitude.
The former Board of Mine Operations Appeals has held in
several cases that if respondent presents no financial data,
it may be concluded that the payment of a penalty would not
cause it to discontinue in business. Since no financial data
were presented in this case, I find that payment of penalties
would not cause respondent to discontinue in busines.s
•
. ---As to the criterion of the history of previous violations, counsel for the Secretary of Labor has stated that she
will mail to me a computer printout in the near future, and
will send a copy of it to counsel for respondent. And if he
does not notify me of any errors that he thinks exists in the
computer printout, I shall subsequently add to the written
decision, which is mailed to the parties, a consideration of
the criterion of history of previous violations.
A 21-page computer printout listing alleged violations
for which respondent has already paid penalties was sent to
me on May 24, 1980. That 21-page document is marked for
identification as the Secretary of Labor's Exhibit P-6 in
this proceeding and is received in evidence. Counsel for
respondent has not notified me that he has found any errors
in Exhibit P-6. Therefore, it will be used to evaluate the
criterion of history of previous violations.
Exhibit P-6 shows that respondent has previously violated
section 75.200 on 52 occasions. Sixteen of the violations
occurred in 1977, 28 occurred in 1978, and 8 violations had
occurred in 1979 by May 9, 1979. Since roof falls still
account for a large percentage of the injuries and deaths
which occur each year in underground mines, I consider it to
be a serious matter when an operator has a long list of violations of section 75.200, especially if the violations have an
upward trend, as they do in this case, because there is an
increase from 16 violations in 1977 to 28 in 1978. Therefore,

1866

the penalty otherwise assessable under the other five criteria
for this violation9f_~ection 75.200 will be increased by $500
under the criter,ion of history of previous violations.
As to the criterion of gravity, there was considerable
testimony by the inspectors to the effect that the roof conditions in the six north section were substandard, in that there
was heaving of the bottom, and some cracking in the roof, and
that going out from under the roof bolts would be a hazardous
act for a person t~ make. Consequently, I find that the violation was serious.
As to the criterion of negligence, the evidence does not
show that the section foreman on the second shift was aware
of the fact that the continuous-mining machine had been used
in the fashion that it was. There is evidence that this
particular split on the No. 3 pillar was something that was
written up by the preshift examiner. And there's been some
testimony that danger boards had been erected outby the
pillar. The inspectors did not see the danger board, but it
is alleged that the preshift examiner had put one~up. So, at
least an effort had been made to alert people to the possibility that this was a dangerous area. Now, for that reason
I find that there was not a large degree of negligence.
Considering that respondent is a large operator, that
payment of penalties will not cause respondent to discontinue
in business, that there was a normal good faith effort to
achieve rapid compliance, that the violation was serious,
and that there was a low degree of negligence, a penalty of
$1,000 would have been assessed, but as indicated above, the
penalty of $1,000 will be increased by $500 to $1,500'because
of respondent's adverse history of previous violations of
section 75.200.
APPROVAL OF SETTLEMENTS
DOCKET NO. WEVA 80-125
The violation here involved was an alleged violation of
30 C.F.R. § 77.202, which prohibits the existence of coal-dust
accumulations in dangerous amounts. Order No. 655348, issued
May 30, 1979, cited a violation of section 77.202 because float
coal dust was present on all four levels of the crusher building, ranging in depths of up to 18 inches. The motion for
approval of settlements states that respondent has agreed to
pay the full penalty of $800 proposed by the Assessment Office
in this instance, because the facts show that possible ignition
sources existed in the area of some of the accumulations. Some
mitigating factors were that the accumulations existed on surface facilities where there was little danger that dust would

1867

1.-:

accumulate in a hazardous amount, and that some steps were
being taken to clean up the accumulations at the time the
order was-written-: -Therefore, the violation was not as
serious as it would have been if it had occurred underground,
and respondent was not as negligent as it would have been if
no steps to clean up the accumulations had been taken.
I find that the Assessment Office determined an appropriate penalty, and that respondent's agreement to pay the
full amount proposed by the Assessment Office should be
approved.
DOCKET NO. WEVA 80-126
The single violation of section 103(f) of the Act
involved in Docket No. WEVA 80-126 was alleged in Citation
No. 654849, which stated that respondent failed to pay a
miner who walked around with an inspector. The Assessment
Office considered the violation to be nonserious, to be
associated with ordinary negligence, and proposed a penalty
of $114. Respondent has agreed to pay a redu~ed- penalty
of $52.
The motion for approval of settlement states that the
reduced penalty is justified because respondent acted in good
faith under its interpretation of section 103(f), namely
that respondent was obligated to pay only one representative
under the walkaround provisions of section 103(f) of the Act.
I find that respondent's agreement to pay a reduced
penalty of $52 should be approved, because respondent was not
as negligent, in the circumstances, as the Assessment Office
believed when it proposed a penalty of $114 based primarily
on attributing 10 penalty points under. the criterion of
negligence pursuant to 30 C.F.R. § 100.3.
DOCKET NO. WEVA 80-127
Three violations of section 77.202 are involved in
Docket No. WEVA 80-127. The first violation of section
77.202 ·was alleged in Citation No. 654835, because the
inspector asserted that float coal dust had accumulated on
all three levels of the crusher building in depths of up to
3 inches. The motion for approval of settlement says that
the Assessment Office's proposed penalty of $500 is excessive, and that respondent's agreement to pay $375 is justified, because respondent has a clean-up plan under which the

1868

crusher building is washed down every three shifts, which had
the effect of. making the crusher building damp, and reducing
the likelihood·of---fire or explosion. Additionally, the accumulations were less than 3 inches in depth, except in a few
locations. It is said that these facts reduced the probability
of fire, and also the degree of negligence.
The second violation of section 77.202 was cited in Order
No. 654837, which alleged existence of float coal dust up to
6 inches in depth in the skip hoist facility. Respondent has
agreed to pay a penalty of $450 instead of the penalty of $600
proposed by the Assessment Office. The motion for approval of
settlement states that a reduced penalty is justified because
the accumulations were less than 1 inch in all but a few locations, that there were no miners in the area described in the
order, and that there were no ignition sources in the area.
The third violation of section 77.202 was cited in Order
No. 654847 which alleged that float coal dust up to 1 inch
in depth had accumulated at several places in the man hoist
facility. The motion for approval of settlement st~_tes that
a reduced penalty of $600 is warranted instead of the penalty
of $800 proposed by the Assessment Office, because further
investigation has indicated that the accumulations were less
than 1 inch in depth in nearly all instances. The motion
avers that that fact warrants a conclusion that respondent
was µot as negligent, and that the violation was not as
serious as it had been considered to be by the Assessment
Office.
I have found in prior cases that inspectors do not consider accumulations on the surface as serious as underground
accumulations. Therefore, I find that satisfactory reasons
have been given for accepting respondent's offer to pay
reduced penalties for the three violations of section 77.202
involved in Docket No. WEVA 80-127.
DOCKET NO. WEVA 80-128
Two violations are involved in Docket No. WEVA 80-128.
The first violation was of section 75.200, alleged in Citation No. 655224, which stated that respondent had failed to
follow the provisions of its roof-control plan, because no
temporary supports had been installed in the face area of the
Nos. 1 and 2 entries after completion of the mining cycle.
The motion for approval of settlement states that the No. 1
entry had been driven 19 feet inby permanent supports, and
that the No. 2 entry had been driven 21 feet inby permanent
supports, and that there were cracks in the roof. Since the

1869

violation was serious and involved a high degree of negligence, the_~o~ion states that respondent has appropriately
agreed to pay the full penalty of $1,000 proposed by the
Assessment Off ice.
The second violation in this docket was cited in Order
No. 655225 which stated that respondent had violated section
75.326 because belt haulage air was being used to ventilate
the active working section. The motion for approval of settlement states that respondent's offer to pay a reduced penalty of
$500 instead of the $1,000 penalty proposed by the Assessment
Office is justified because, although belt haulage air was
used to ventilate the working face, the air had reached the
working face because respondent had been forced to remove a
permanent stopping in order to bring in supplies needed for
installing a new conveyor belt. The belt could not have been
installed without removing the stopping.
At the time the order was written, the conveyor belt was
not being operated. The motion states that the afo~ementioned
facts show that the violation was not as seriou·s--aD.d did not
involve as much negligence as the Assessment Office believed
to exist when it proposed the penalty of $1,000.
I find adequate reasons have been given to approve
respondent's agreement to pay $1,000 and $500, respectively,
for the violations of sections 75.200 and 75.326 involved in
Docket No. WEVA 80-128.
Summary of Assessments
Based on all the evidence of record and the aforesaid findings of fact,
or the parties' settlement agreement, the following civil penalties should
be assessed:
Docket No. WEVA 80-124
Order No. 655146 5/16/79 § 75.200 ••••••• (Contested)~ ••••• $ 1,500.00
Settlement Agreements
Docket No. WEVA 80-125
Order No. 655348 5/30/79 § 77.202 •••••••••••••••••••••••• $

800.00

Docket No. WEVA 80-126
Citation No. 654849 4/23/79 § 103(f) ••••••••••••••••••••• $

52.00

Docket No. WEVA 80-127
Citation No. 654835 4/3/79 § 77.202 •••••••••••••••••••••• $

1870··

375.00

Orde_r No. 654837 4/4/79 § 77 .202 ••••••••••••••••••••••••• $
450.00
Order No. 6_54847 4/17/79 § 77.202 ..............................$__6_00_._o_o
Total Penalties in Docket No. _WEVA 80-127 ••••••••••• $ 1,425.00
,-

Docket No. WEVA 80-128
Citation No. 655224 6/22/79 § 75.200 ••••••••••••••••••••• $ 1,000.00
Order No. 655225 6/22/79 § 75.326 •••••••••••••••••••••••• $
500.00
Total Penalties in Docket No. WEVA 80-128 ••••••••••• $ 1,500.00
Total Settlement and Contested Penalties in
This Proceeding•••••••••••••••••••••••••••••••••••$ 5,277.00
WHEREFORE, i t is ordered:
(A) The parties' requests for approval of settlement are granted and
the settlement agreements submitted in this proceeding in Docket Nos.
WEVA 80-125, WEVA 80-126, WEVA 80-127, and WEVA 80-128 are approved.
(B) Pursuant to the parties' settlement agreements and the bench
decision rendered in the proceeding in Docket No. WEVA 80-124, respondent
shall, within 30 days from the date of this decision, pay civil penalties
totaling $5,277.00 as set forth in the paragraph under Summary of Assessments above.

fir

1"%)·_[1_.r.:c, QiJ-Gr -'- . ~

XI~

Richard c. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)

~

Distribution:
Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S.
Department of Labor, Room 14480-Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
James R. Haggerty, Esq., Attorney for Olga Coal Company,
3 ~ateway Center, Pittsburgh, PA 15263 (Certified Mail)

1871

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

2, 4 JUL 1900

SECRJ;:TARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. WEVA 79~222
A/O No. 46-01367-03024 V

Petitioner
v.

Paragon Mine
AMHERST COAL COMPANY,
Respondent

Docket No. WEVA 79-223
A/O No. 46-03773-03012 V
MacGregor No. 8 Mine

DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, Region III,
U.S. Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Edward I. Eiland, Esq., Logan, West Virginia, for Respondent.

Before:

Judge Stewart

The above-captioned cases are civil penalty proceedings brought pursuant
to section llO(a) 1/ of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act),-30 U.S.C. § 820(a). The hearing in these matters was held
in Charleston, West Virginia, on January 16, 1980. At the conclusion of the
hearing, the parties waived their right to file posthearing briefs.

l_/

Section llO(a) of the Act reads as follows:
"The 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
this Act, shall be assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation. Each occurrence of
a violation of a mandatory health or safety standard may constitute a
separate offense."

1872

Docket No. WEVA 79-223

On December 7, 1978, inspector Henry J. Keith issued Order No. 23000
pursuant to section 104(d)(l) 2/ of the Act. He cited 30 C.F.R. § 75.1307 1/
and described the relevant condition or practice as follows:
Explosives were not properly stored in the 10 road 008
section in that about 24 sticks of powder were lying on the
floor of the No. 2 entry near a battery charger that was
energized. Said explosive was not kept in a container constructed for this purpose. The container the explosives were
in also was not closed. This was located in the above area.
The inspector found that the operator demonstrated an unwarrantable
failure to comply with the mandatory standard. He noted that the operator
had a responsibility to conduct an onshift examination in the section. He
based his finding of unwarrantable failure on his belief that the condition
was obvious and would have been observed in the course of such inspection.
- ---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 Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all.persons in the area affected by
such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been
abated."
1/ 30 C.F.R. § 75.1307 reads as follows:
"Explosives and detonators stored in the working places shall be kept in
separate closed containers which shall be located out of the line of blast
and not less than 50 feet from the working face and 15 feet from any pipeline,
powerline, rail, or conveyor, except that, if kept in niches in the rib, the
distance from any pipeline, powerline, rail, or conveyor shall be at least
5 feet. Such explosives and detonators, when stored, shall be separated by a
distance of at least 5 feet."

2/

1873

The operator abated. the condition by removing the explosives to the
mouth of the section. Jn_~he opinion of the inspector, a normal degree of
good faith was shown.by the operator in abatement.
The parties were in agreement with respect to all statutory criteria to
be considered in determining the amount of civil penalty to be assessed except
for the issue of negligence. At the conclusion of Petitioner's presentation
of evidence, the Administrative Law Judge made a finding from the bench with
respect to the negligence of the operator in permitting the existence of the
condition. This ruling was as follows:
Let the record show that there have been discussions
between counsel and the Judge and, in response to the question as to whether or not there was negligence, I find that
the record at this point, as adduced by evidence of the
Government, has failed to show the length of time that the
explosives were in the area in which they were sighted by the
inspector and it has not been shown that anyone connected with
management was either in that area or should have been in that
area at the time when the explosives were there. Therefore,
it has not been shown that the company knew or should have
known of the existence of the explosives where they were found
by the inspector. Therefore, I find that there was no negligence by the operator.

As a result of this finding regarding negligence, and additional discussions between counsel, the parties agreed that the penalty in this case
should be reduced to $200. A penalty of $1,500 had been proposed· by MSHA's
Office of Assessments. In support of the settlement agreement, counsel for
Petitioner asserted the following:
The parties have agreed that, although there was no
negligence involved, this was a moderately serious situation
warranting more than a merely nominal penalty. The parties
feel that a penalty of $200 adequately reflects the absence
of negligence and the seriousness of the violation. The
operator's past history in regard to these types of violations is insubstantial. * * * The parties have reached a
stipulation as to the size of the operator and it is agreed
that the 1978 production figure of 1,377,448 tons is representative of the operator's average annual tonnage and that
places this operator in the size of a medium sized operator.
In light of these criteria the parties move that the proposed
settlement of $200 for this violation be approved.
The settlement proposed by the parties was approved by the Administrative Law Judge on the record. This approval is hereby AFFIRMED.

1874

Docket No. WEVA 79-222
On December 14, 1978, MSHA nspector Keith issued Order of Withdrawal
No. 23035 pursuant to section 104(d)(2) 4/ of the Act, citing a violation of
30 C.F.R. § 75.200 2_/ for failure to comply with the miner's roof-control
plan.

The order of withdrawal noted that the area affected by this order was
the No. 5 entry on the No. 4 unit, 027 section. The order, which was issued
at 8:30 p.m., was terminated at 10 p.m., when "the entire area was temporarily supported and roof bolts were installed."
The operator mined the No. 4 unit, 027 section, on a five-entry system.
The method used to mine was such that coal was simultaneously cut, mined, and
loaded. A bridge-haulage mechanism, consisting of three connected segments,
was attached to a continuous miner. The bridging linked the miner directly
to the belt line which was located in the No. 3 entry.
The operator encountered adverse roof conditions in the No. 5 entry on
December 5, 1978. The conditions began along the right r!_]>-of- the entry and
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 paragraph (1), a withdrawal order shall promptly
be issued by an authorized representative of the Secretary who finds upon
any sµbsequent inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar
violations. Following an inspection of such mine which discloses no similar
violation, the provisions of paragraph (1) shall again be applicable to that
mine.'!
~
30 C.F.R. § 75.200 reads as follows:
"Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system of each coal mine and the means and
measures to accomplish such system. The roof and ribs of all active underground roadways, travelways, and working places shall be supported or ot~er
wise controlled adequately to protect persons from falls of the roof or ribs.
A roof control plan and revisions thereof suitable to the roof conditions
and mining system of each coal mine and approved by the Secretary shall be
adopted and set out in printed form on or before May 29, 1970. The plan
shall show the type of support and spacing approved by the Secretary. Such
plan shall be reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of
support of roof or ribs. No person shall proceed beyond the last permanent
support unless adequate temporary support is provided or unless such temporary support is not required under the approved roof control plan and the
absence of such support will not pose a hazard to the miners. A copy of the
plan shall be furnished to the Secretary or his authorized representative
and shall be available to the miners and their representatives."
!±._/

1875

extended across the face areas. As the continuous miner was removed from the
face .area, a port.iot\_Of t-he--top fell. In so doing,· it knocked out timbers
and pulled out roof bolts. Tests performed on the roof indicated that the
roof's condition continued to deteriorate. Because of this, the roof-bolting
crew was removed and three or more cribs were placed in the center of the
entry. The most inby crib was 8 feet from the face. The area left without
roof support extended approximately 8 feet from this crib and more than
20 feet from rib to rib. A danger board was placed on the most outby crib
and no one was permitted in the area. The operator did not permit entry of
either machinery or employees into the area until after Order No. 23035 was
issued.
The No. 5 entry had already been driven the length of the pillar. The
operator decided, therefore, to approach the area from the crosscut rather
than subject its employees to the hazard presented by the adverse conditions
in the No. 5 entry. The operator proceeded cautiously to mine the last open
crosscut between entries No. 4 and No. 5 (hereinafter, the 4 right crosscut).
Cuts were made to depths of 10 feet rather than to the usual 20-foot depth.
Roof bolts of 8 to 9 feet in length with plates measuring 6 inches x
16 inches were used, rather than the usual 3- or 4-foot b_olts and 6 inch- x
6-inch plates. In addition, the roof-bolting cycle was-changed so as to
afford the operator of the continuous miner greater protection.
The operator holed through from the crosscut into the No. 5 entry during
the day shift on December 14, 1978. The dimensions of this hole were 2 feet
x 3 feet. By the end of the day shift, the roof in the 4 right crosscut had
been bolted up to the face. No unusual roof problems had been encountered
in the 4 right crosscut.
James Cole, the section foreman in charge of the section during the
second shift on December 14, 1978, was on the No. 4 unit at the time the
inspector issued Order No. 23035. The 9- to 10-f oot cut which completed the
breakthrough into the No. 5 entry had been made at approximately 6:30 p.m.
The roof bolter was in the process of bolting this newly cut area when the
inspector arrived. One row of bolts and four temporary posts had been
installed. No miner or equipment had ventured under the unsupported or bad
roof in the No. 5 entry.
In the order of withdrawal, the inspector described the pertinent condition or practice as follows:
The roof control plan was not being complied with in the
No. 5 entry in that a side cut was made where a crosscut from
No. 4 entry entered into the right rib of the No. 5 entry. An
area 20 feet wide and eight feet in length approaching an
installed crib was not temporarily or permanently supported
and evidence indicates that machinery was permitted to work
inby. See page 8, paragraph 11, (a) and (b) of the roof control plan.

1876

Although the inspector wrote on the order under "action to terminate"
that mine management abated_tb_~ condition by supporting the entire area with
roof bolts, Mr. Cole-testified that the inspector allowed work to continue
after two safety jacks were set in the No. 5 entry, inby the right side of
the 4 right crosscut.
Paragraph 11 of the roof-control plan provides as follows:
(a) Sidecuts shall be started only in areas that are supported with permanent roof supports. During development,
except where old workings are involved, working places shall
not be holed through into accessible areas that are not
supported on 5-f oot maximum spacing lengthwise and crosswise
to within 5 feet of the face.
(b) When new openings are created and/or sidecuts are
made, the newly exposed area shall be supported with temporary
or permanent supports in accordance with the development plan,
or a row of posts on 4-foot maximum spacing installed across
the mouth of the opening before any machinery is permitted to
work inby.
The record establishes that the mining procedure utilized by the opera tor to cope with the roof problems in the No. 5 entry placed it in violation
of paragraph 11, sections (a) and (b), of its roof-control plan. Although a
sidecut was not started from the area in the No. 5 entry that was not supported with permanent roof supports, the operator holed through from the
4 right crosscut into the No. 5 entry despite the absence of support in the
No. 5 entry. That is, a working place was holed through into an accessible
area that was not supported on a 5-f o~t maximum spacing lengthwise and crosswise to within 5 feet of the face, thereby violating paragraph 11, section
(a). In completing the breakthrough from the 4 right crosscut, the operator
violated paragraph 11, section (b), in that machinery was permitted to work
inby roof which had not been supported with temporary or permanent supports
in accordance with the development plan and no row of posts been placed
across the mouth of the opening into the No. 5 entry.
At the hearing, the tenor of Inspector Keith's account of the alleged
violation conformed with that of Respondent's witnesses, but- it diverged
significantly in matters of detail. Respondent called four witnesses to
testify in its behalf at the hearing. Three of these four witnesses--Willard
Bourne, James Cole, and Clarence Preston--were section foremen at the Paragon
Mine during the time period material herein. The fourth, Ernest Marcum, was
Respondent's safety inspector. These witnesses who directly participated in
the mining process provided an accurate account of the events and conditions
existing prior to the issuance of Order No. 23035. The inspector, whose
recollection was faulty as to some details, had no direct knowledge of the
sequence of events which led to the conditions but drew his conclusions
regarding this sequence from observations of conditions which prevailed at
the time he issued the order. Nevertheless, the inspector observed conditions

1877

which were in violation of the roof control plan and, even with the testimony
of Respondent's.witnesses which is accepted as being accurate in detail, the
record clearly esta151Isnesthe existence of the violation.
The negligence of the operator in allowing the occurrence of this viola~
tion was slight. Although temporary support should have been provided in the
unsupported area of the No. 5 entry before permanent support was placed in
the area of the last cut, proper mining procedure had been otherwise followed
by the operator. After being confronted with working top in the No. 5 entry
on December 5, 1978, the operator proceeded with caution to make the best of
the situation.
·
Although the negligence of the operation was not of the degree asserted
by Pe~itioner based on the observations of the inspector, the gravity of the
violation was substantial. The roof~bolting crew was at work adjacent to
the area of unsupported and bad roof in the No. 5 entry. If the roof had
started falling, the fall could have continued into the area in which the
bolting crew was working. The type of injury to be expected in the event such
an accident occurred would be a fatality or serious injury.
The operator demonstrated a normal degree of good-·fa·iih in the abatement of this condition.
The operator's history of prior paid violations from December 15, 1976,
through December 14, 1978, at the Paragon Mine is as follows: Respondent's
history of violations reflects a total of 153 prior paid violations in 1977
and 212 prior paid violations in 1978. The number of prior paid violations
of 30 ~.F.R. § 75.200 amounted to 4 in 1977 and 25 in 1978.
The parties stipulated that penalties assessed herein will not adversely
affect the operator's ability to continue in business. The parties also
agreed that the 1978 production figure of 1,377,448 tons is representative
of the operator's average annual tonnage and that the size of Respondent is
that of a medium operator.
Assessments
In consideration of the findings of fact and conclus~ons of law contained
in this decision, the following assessments are appropriate under the criteria
of section 110 of the Act.
Order No.

Penalty

23000
23035

$200
$200

1878

.

ORDER
It is hereby ORDERED that Respondent pay the sum of $400 within 30 days
of the date of t~is decision.

Forrest E. Stewart
Administrative Law Judge
Issued:
Distribution:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Edward I. Eiland, Esq., Eiland & Bennett, Suite 508, National Bank
Building, P. o. Box 899, Logan, WV 25601 (Certified ~ail)

1879

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

2 5 JUL 1980

Civil Penalty Proceedings

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

Docket No. KENT 80-155
A.O. No. 15-02709-03071V

Petitioner

v.
Camp No. 1 Mine
PEABODY COAL COMPANY,
Docket No. KENT 8_0~156
A.O. No. 15-()Z0-69-03011

Respondent

Sinclair Strip Mine
Docket No. KENT 80-157
A.O. No. 15-05046-03058H
Alston No. 3 UG Mine
DECISIONS
Appea~ances:

George Drumming, Jr., Attorney, U.S. Department of Labor,
Nashville, Tennessee, for petitioner;
Thomas Gallagher, Esquire, St. Louis, Missouri, for
respondent.

Before:

Judge Koutras

....

Statement of the Proceedings
These consolidated proceedings were docketed for hearings in Evansville,
Indiana, June 26, 1980, along with another proceeding involving the same parties. The parties made a proposal to settle these dockets without the need
for an evidentiary hearing and they were afforded an opportunity to present
their arguments in support of their proposed settlement on the record.
These cases are civil penalty proceedings initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, through the filing of civil penalty proposals for a
total of five alleged violations of certain mandatory safety standards promulgated pursuant to the Act. Respondent filed timely answers contesting
the citations, requested hearings in Evansville, but as indicated above, the
parties subsequently proposed to settle the cases. The citations, initial
asse~sments, and the proposed settlement amounts are as follows:

1880

Docket No. KENT 80-155 concerns three citations. Citation No. 0798291
concerns a violation of the mine roof-control plan and abatement was achieved
within an hour after the issuance of the citation. The proposed settlement
is for 100 percent of the initial proposed settlement.
Citation No. 0798644 concerns an alleged accumulation of loose coal,
rock, and some float coal dust along a belt and belt idlers. Respondent
argued that its records reflected that during the third shift on the day
before the citation issued, eight belt shovelers were working on the belt.
On the day the citation issued, four belt shovelers were working. Thus,
respondent argues that it was making a good faith effort to keep the belt
clean of accumulations (Tr. 8). Abatement was achieved the same day the
citation issued by cleaning and rock dusting the belt and respondent
exercised good faith compliance (Tr. 7).
Citation No. 0798285 concerns a water sprinkler system_:vhich provided
protection for only 23 feet of a belt conveyor drive. However, respondent
pointed out that section 75.1101-7(b) is intended to provide fire protection
over the belt drive which normally is 35 to 40 feet in length. In this case,
the belt drive being used on the day of the inspection was a portable drive
approximately 18 feet long. Consequently, while the existing water spray
system afforded protection for only 23 feet it did in fact extend over the
18-foot portable belt drive and afforded fire protection (Tr. 8, 11).
In addition to the f?regoing, petiHona,r .asserted that respondent is a
large operator, that its prior mine history of violations is not excessive
for an operation of its size, and that each citation here in question
resulted from ordinary negligence. While the conditions.cited were serious,

1881

respondent exhibited good faith abatement and the penalties agreed to will
not adversely aff_ec~__ r.eS-pon-dent' s ability to continue in business.
Docket No. KENT 80-156 concerns an alleged violation of section 77.807
for failure to adequately protect a drill trailing cable operating at the pit
high wall from being run over by mobile equipment. Although respondent
recognizes that section 77.807 deals with high voltage transmission cables,
while section 77.604, which was not cited, specifically·covers trailing ·
cables, it nonetheless agreed to pay the full assessment of $180 and it
did so because it believes that MSHA could establish the fact of violation,
that it could amend its pleadings to cite the more appropriate section
77.604·, and respondent candidly conceded that it was aware of the specific
section it had violated and would not be prejudiced by any amendment to the
pleadings (Tr. 15-19).
Petitioner asserted that the inspector who issued the citation was
available to testify regarding the citation and that he would testify there
is not very much difference in a trailing cable and a high-voltage cable
(Tr. 16). Petitioner also asserted that the violation was serious, that
it resulted from ordinary negligence, and was abated in good faith. Further,
petitioner asserted that respondent's.mining operations.are large, that the
penalty will not adversely affect its ability to remain in business, and
that the previous history of citations at the mine is not excessive (Tr. 14).
Docket No. KENT 80-157 concerns an alleged accumulation of loose coal
in a belt entry, and float coal dust on the mine floor and belt-control
box (Tr. 20). Petitioner again asserted that the mine operation is large,
that the previous history of violations at the mine site in question was
not excessive. The conditions cited were serious, resulted from ordinary
negligence, and payment of the proposed settlement amount will not adversely
affect respondent's ability to remain in business (Tr. 20).
With regard to the circumstances surrounding the cited conditions,
respondent asserted that had t.he case proceeded to hearing, it would present
the testimony of the union belt walker who walked the area prior to th.e
inspector and observed nothing of consequences, and particularly no imminent
danger. Further, the mine manager would dispute the inspector's measurements
concerning the accumulations and would also testify that ~he cited coal dust
was in fact dust from rock which was being transported on the belt. The area
of the alleged accumulation was approximately 12 inches high and 8 feet long,
and not 14 feet long as described by the inspector (Tr. 19-24).
Petitioner agreed that the conditions were abated in good faith and
that the loose coal was apparently loaded out immediately (Tr. 25, 29).
CONCLUSION
After careful review and consideration of the arguments presented
by the parties in support of the proposed settlement disposition of these
cases, I find that they are reasonable and in the public interest and they

1882

are appr.oved. The total settlement amount of $4,180 for the five contested
citations is reasonable considering all Qf the circumstances presented in
these cases.
O~ER

Respondent IS O~ERED to pay civil penalties in the amounts indicated
above, totaling $4,180, within thirty (30) days of the date of these
decisions. Upon receipt of payment by the petitioner, these cases are
dismissed.

Distribution:
George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department of
Labor, Room 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Thomas R. Gallagher, Esq., P.O. Box 235, St. Louis, MO 63166 (Certified
Mail)

1883

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

2 5 Jut 1~ao

)

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

)
)

CIVIL PENALTY PROCEEDING

)

DOCKET NO. WEST 79-192-M
MSHA CASE NO. 05-02337-05005

)
)

v.

)
)

CLIMAX MOLYBDENUM COMPANY,

DOCKET NO. WEST 79-305-M
MSHA CASE NO. 05-02337-05009

)
)

Respondent.

MINE:

CLIMAX MILL AND CRUSHERS

)
)

~~~~~~~~~~~~~~~~~~~-

DECISION
APPEARANCES:
Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh,
Regional Solicitor, United States Department of Labor, Kansas. City, MO.
for the Petitioner,
Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado
for the Respondent.
Before:

Judge John J. Morris
WEST 79-192-M
Citation 331477

Petitioner, the Secretary of Labor, on behalf of the Mine Safety
and Health Administration (MSHA), charges respondent, Climax Molybdenum
Company, failed to provide handrails for the protection of its employees.
MSHA asserts Climax thereby violated 30 CFR 57.11-2, 1 a regulation
promulgated under the statutory authority of the Federal Mine Health and
Safety Act of 1969 (amended 1977), 30 u.s.c. § 801 et seq.

11

The cited standard reads as follows:
57.12-30 Mandatory. 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.

1884

ISSUE

- . - --

The issue is whether Climax violated the standards.
FINDINGS OF FACT
The evidence is uncontroverted.

I find the following facts to be

credible.
1.

In the Climax Mill, there was an unguarded elevated walkway 30 feet

in length (Tr 6 - 7, 16, R1).
2.

The walkway, five feet above the concrete, was 12 to 14 inches wide

(Tr 6 - 9).
3.

A worker positioned himself on the planks in order to rotate the

pipe every three years.

According to maintenance records, the pipe had not

been rotated in six years (Tr 24·).
4.

In order to move the

30 inch pipe, it is necessary to remove the

handrails.
5.

No worker would be on the walkway other than to change, rotate, or

remove the pipe (Tr 25).
6.

When the pipe is changed, rotated, or removed, workers tie off with

safety lines (Tr 25).
DISCUSSION
Climax contends that the cited area is not a walkway as defined in 30
c.F.R. 57.11-2.

The basis for the argument is that the 2 x 12 planks do not

lead to anything other than a blank walk.
over the 30 inch pipe to reach the area.

1885

In addition, a worker must cross

I reject Climax's argument.
walkway.

MSHA defines tunnelway but not a

Webster ~-indicates one definition of a walkway is as follows:
A passageway in a place of employment (as a factory
or restaurant) designed to be walked on by the employees
in the performance of their duties.

Climax's employees use this area to gain access to the pipe.

It

accordingly constitutes a walkway.
The evidence, however, establishes that to perform their duties the
handrails must be removed.

The area is not otherwise used by workers.

These facts establish impossibility of compliance with the regulation.
While the Commission has not addressed this defense, it is the writer's
view that it is. an affirmative defense.
compliance is functionally impossible.

Respondent

impossibility of performance.

that

Further~ alternative effective

protection must be used to protect the workers.
tied off when using the walkway.

m~_i:;t--show

Here the Climax workers

The facts establish the defense of

OSHA Review Commission cases on this

defense are Everhart Steel Const~uction Company, OSHA Docket No. 3217
(April, 1975); Hughes Brothers, Inc., No. 12523 (July 1978); Julius Nasso
Concrete Corporation, et. al. No. 16012 (December 1977).
Climax has established impossibility of compliance and I therefore
conclude that Citation 331477 should be vacated.
SETTLEMENTS
During the hearing, Climax moved to withdraw its notice of contest as to
the four remaining citations in this case.
pursuant to Commission Rule 2700.11 the

~/

Petitioner does not object and

~otions

should be granted.

Webster's Third New International Dictionary, unabridged, 1976.

1886

WEST 79-305-M
Citation 331860
MSHA in this penalty proceedings charges Climax failed to provide
handrails for a storage area thereby violating 30 C.F.R. 57.11-2. 3
The evidence is uncontroverted and I find the following facts to be
credible.
7.

A flat roof shed was located inside a larger building (Tr 31-44).

8.

The 10 foot high shed was 7 feet deep at the top; it

~ad

no

handrails (Tr 31, 32, 42, G1).
9.

It was 7 feet beneath the roof of the larger building at the front

of the shed angling to zero feet at the back (Tr 41-43;--Gi, R2, R4).
10.

At the time of the inspection there were empty cardboard boxes a

foot from the edge of the roof of the shed (Tr. 36, 38, 40).
DISCUSSION
To establish a prima facie violation of a standard, petitioner must
establish two things.

First, that the described factual situation falls

within the terms of the standard.

Second, that there were one or more

employees who were exposed to the hazard or who had access to the hazardous
condition.

MSHA's proof of the first category fails.

is not one of the areas described in the standard.

The top of the shed

It is not a crossover.,

an elevated walkway, an elevated ramp, nor a stairway.
It follows that Citation No. 331860 should be vacated.

~./

Note 1.

1887

SETTLEMENT
During the hea:r;±ng,-cTimax moved to withdraw its notice of contest as to
Citation 332562.

Petitioner does not object.

Pursuant to Commission Rule

2700.11, the motion should be granted. 4
CONCLUoIONS OF LAW
CASE WEST 79-192-M
1.

Respondent established the defense of impossibility of compliance

with 30 c.F.R. 57.11-2 (Facts 1 - 6).

2.

Citation No. 371477 and the proposed penalty therefor should be

vacated.
3.

On respondent's motions to withdraw the following citations and

their respective proposed penalties should be affirmed:
Citation Numbers 329264, 329265, 329268, 329273
CASE WEST 79-305-M
4.

Respondent did not violate 30 C.F.R. 57.11-2 and Citation 331860

should be vacated together with proposed penalty.
5.

On respondent's motion, Citation No. 332562 and the proposed penalty

should be affirmed.
Based on the foregoing findings of fact and conclusions of law, I enter
the following:
ORDER
CASE WEST 79-192-M
Citation No. 331477 and all proposed penalties therefor are vacated.

y

The motion to vacate appears on pages 42 - 43 in the case involving
the parties. The caption is noted as Docket WEST 79-303-M, WEST
79-304-M, WEST 79-306-M.

1888

Based on the foregoing findings of fact and conclusions of law, I
enter· the following:
ORDER
CASE WEST 79-192-M
Citation No. 331477 and all proposed penalties therefor are vacated.
Citations No. 329264, 329265, 329268, and 329273 and the proposed
penalties therefor are affirmed.
CASE WEST 79-305-M
Citation No. 331860 and the proposed penalty therefor are vacated.
Citation No. 332562 and the proposed penalty therefor are affirmed.

'
Law Judge
Distribution:
Robert Bass, Esq., Eliehue Brunson, Esq., Office of the Solicitor,
United States Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, Colorado 80294
Michael Hackett, Esq., Richard w. Manning, Esq., Climax Molybdenum
Company, 13949 West Colfax Avenue, Golden, Colorado 80401
John R. Tadlock, Esq., Oil, Chemical, and Atomic Worke-rs International
Union,· 1636 Champa Street, Denver, Colorado 80461
Mr. David A. Jones, Jr., Oil, Chemical, and Atomic Workers International
Union, P. o. Box 949, Leadville, Colorado 80461
Mr. Edwin Matheson, International Brotherhood of Electrical Workers,
Local No. 1823, P. o. Box 102, Minturn, Colorado 81645

1889

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

2 5 JUL 1990
SECRETARY OF LABOR,
MINE SAFETY ANU HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket Nos. BARB 77-266-P
BARB 76X465-P

Petitioner

v.
No. 4 Mine
Brookwood, Tuscaloosa County,
Alabama

JIM WALTER RESOURCES, INC.,
COWIN AND COMPANY, INC.,
Respondents

DECISIONS
Appearances:

J. Philip Smith, Trial Attorney, U.S. Department of Labor,
Arlington, Virginia, for the petitioner;
Robert w. Pollard, Esq., Birmingham, Alabama, for the
respondent, Jim Walter Resources, Inc.;
William H. Howe, Esq,.; Washington, D.c., for the respondent,
Cowin and Company, Inc.

Before:

Judge Koutras
Statement of .the Proceedings

These proceedings are consoli~ated civil penalty proceedings filed
under sections 109(a) (1) and 109(c), of the Federal Coal--Mine Health and
Safety Act of 1969, 30 u.s.c. §§ 819(a)(l) and (c), charging the respondents with an alleged violation of mandatory safety standard 30 C.F.R.
§ 77.1903(b), for failure to use certain ANSI standards as a guide during
shaft construction. The petitions for assessment of civil penalties filed
against the respondents seek civil penalty assessments for the alleged violation which was cited in a section 104(b) notice of violation issued by
MSHA mine inspector Robert K. Kuykendall on June 16, 1975. The notice
issued after an investigation of a fatal accident which occurred on June 9,
1975, at the production shaft being constructed by respondent Cowin and
Company at respondent Jim Walter Resources, Inc., No. 4 Mine, located at
Brookwood, Tuscaloosa County, Alabama. (Jim Walter Resources, Inc., was
formerly known as U.S. Pipe.)
On January 19, 1976, MSHA filed petitions for assessment of civil penalty, pursuant to section 109(c) of the 1969 Act, against two individual

1890

employees of Cowi~ and Company: Earl Hosmer (BARB 76-211-P) and James Hosmer
(BARB 76-212-P). Each of these individual respondents moved for dismissal on
the ground that the-uriderlyi~g notice was invalid since it had been improperly
issued to Cowin and Company, an independent contractor. By order dated
April 20, 1976, MSHA was allowed to withdraw the petitions without prejudice •

.

On July 20, 1976, MSHA issued a modified notice, naming Jim Walter
Resources as the operator instead of Cowin and Company. Then, on August 2,
1976, MSHA again filed petitions for assessment of civil penalty pursuant
to section 109(c), this time against Cowin and Company, Earl Hosmer (BARB
76X466-P and James Hosmer (BARB 76X467-P). More than a year later? on
July 13, 1977, MSHA filed a petition for assessment of civil penalty, pursuant to section 109(a) of the 1969 Act, against Jim Walter Resources (BARB
77-266-P).
By order dated December 20, 1977, all four cases were consolidated for
hearing. Subsequently, the two individual respondents who were employees
of Cowin paid penalties agreed upon with the Office of Assessments, and
were dismissed by me as parties on May 19, 1978.
Jim Walter Resources remains as a respondent, against-which penalties
are sought pursuant to section 109(a) of the 1969 Act. Cowin remains as a
respondent, under MSHA's theory that as a corporation and independent construction contractor, Cowin may be penalized under section 109(c) of the
1969 Act for knowingly authorizing, ordering, or carrying out a violation of
the Act charged to Cowin's coal mine operator customer, Jim Walter Resources.
After several continuances at the request of the parties, he~rings were
held at Birmingham, Alabama, on May 16 and 17, 1978, and the parties appeared
and were represented by counsel. Posthearing proposed findings and conclusions, with supporting briefs, were filed by the parties, and on October 19,
1978, I rendered decisions wherein I vacated the citation and dismissed the
cases. Thereafter, on November 21, 1979, the Commission reversed my decisions and remanded the cases to me for further adjudication in accordance
with the remand order. Subsequent to the remand, respondents filed an appeal
in the U.S. District Court of Appeals for the District of Columbia Circuit
seeking review of the Commission's decision reversing my decisions. By order
of the court on January 30, 1980, the appeal was voluntarily dismissed without prejudice pursuant to Rule 42(b), F.R. App. P., and the cases were
redocketed pursuant to the original Commission remand and are now before me
for further adjudication.
The basis for my original vacation of the notice of violation issued in
these proceedings was my belief that by failing to apprise the respondents
of the specific ANSI standards allegedly not used as a guide, MSHA deprived
the respondents of any reasonable opportunity to know the specific charges
against them and deprived the respondents of a full and fair opportunity to
defend said charges. As pointed out by me at page 37 of my October 19, 1978,
decision:

1891

Forcing an operator to forage among the detailed,
technical, a~~ I _migh_t.:__t!dd, somewhat confusing standards
which have not been revised for some 18 years, to ascertain
precisely what he is being charged with is basically unfair,
particularly in a case where an operator is charged under
section 109(c) with a knowing violation.
And, at page 41:
(W]here a respondent is charged with a knowing violation,
specificity should be the touchstone of any notice issued to
an operator charging him with a violation.
In order to determine the issues which remain for trial and to determine
a schedule for any additional hearings, an informal conference was held in
my office on February 12, 1980, and counsel for petitioner and Cowin appeared
and participated therein. Al.though notified of the conference, counsel for
respondent Jim Walter Resources, Inc., did not appear, nor did he participate.
Subsequently, on February 13, 1980, I issued an order inviting all parties to
file any additional pleadings or arguments so as to bring this matter to finality. In response to that order, the parties filed the·foliowing pleadings.
February 21, 1980
Petitioner filed a motion for leave to amend its proposals for as.sessment
of civ~l penalties to charge respondent Cowin as an operator of the mine pursuant to section 109(a) of the 1969 Act, or in the alternative, as a statutory agent of respondent Jim Walter Resources, Inc., pursuant to section
109(c) of the Act. In support of its motion, petitioner asserted that the
proposed amendment merely changes the charges. as to the legal capacity under
which Cowin committed the alleged violation, and if granted, would leave
respondent Jim Walter Resources, Inc., charged in Docket BARB 77-266-P as the
owner-operator of the mine pursuant to section 109(a), and respondent Cowin
in Docket BARB 76X465-P as an operator of the mine pursuant to section 109(a),
or, in the alternative, as a statutory agent of corporate operator Jim Walter
Resources, Inc., pursuant to section 109(c).
March 6, 1980
Respondent Cowin filed a motion to dismiss the proposal for assessment
of civil penalty against it on the ground that, as an independent contractor,
it cannot be charged as an agent of corporate operator Jim Walter Resources,
Inc., under section 109(c), and in support of its motion, Cowin restated by
reference its previous arguments advanced in pages 11 through 16 of its posthearing brief previously filed in these proceedings, as well as the recent
Fourth Circuit decision in Cowin and Company, Inc. v. Federal Mine Safety
and Health Review Commisson, et al., No. 78-1825, December 28, 1980.

1892

March 7, 1980
Petitioner filed an opposition to Cowin's motion to dismiss, and in support thereof, relied on its previously filed posthearing brief (p. 15), and
the points and authorities set forth in its memorandum in support of its
motion to amend filed February 21, 1980.
March 17, 1980
Respondent Jim Walter Resources, Inc., filed an opposition to petitioner's motion to amend its proposals for assessment of civil penalty,
seeking to name Cowin as an operator pursuant to section 109(a) of·the 1969
Act. In support of its opposition, respondent Jim Walter Resources, Inc.,
argued that the Fourth Circuit decision is binding in this case, that the
Commission's remand granted no authority for MSHA to seek an amendment of
its pleadings, and that the granting of the motion to name Cowin as an
operator presents a new theory of "Dual operator's [sic] for one mine."
Respondent Jim Walter Resources asserted that there can be but one operator of the mine, and if Cowin is found to be the operator of the mine,
Jim Walter Resources, Inc., must be dismissed from the case.
On April 1, 1980, I issued an order ruling on the aforesaid motions
filed by the parties, and they are as follows:

1. Jim Walter's motion that it be dismissed as a partyrespondent was DENIED.
2. Relying on the Fourth Circuit decision noted above,
I GRANTED Cowin's motion to dismiss it as section 109(c)
party-respondent and accepted the argument that it may not be
charged as a statutory agent of Jim Walter.
3. Cowin's motion to be dismissed as a party-respondent
under section 109(a) was DENIED.
4. Petitioner's motion to amend its pleadings to name
Cowin as a section 109(a) party-respondent was GRANTED, and
petitioner's alternative motion to name Cowin as a statutory
agency of Jim Walter under section 109(c) was DENIED.
In addition to the aforesaid rulings, the parties were directed to
identify any issues remaining for adjudication by me in accordance with the
remand, and were afforded an opportunity to request any additional hearings
or conferences, including the submission of any additional argtunents in support of their respective positions. Thereafter, on April 7, 1980, respondent
Cowin requested that I certify for interolocutory review by the Commission
pursuant to Commission Rule 74, 29 C.F.'R. § 2700.74(a), a portion of my
April 1, 1980, order denying its motion to be dismissed as a party-respondent
in these proceedings. I denied the request for certification by order issued
April 24, 1980. Subsequently, by petition filed with the Commission on Ma:y 5,

1893

1980, Cowin sought interlocutory review by the Commi·sson of my order denying
its request for certLfication, and on May 12, 1980, the Commission denied
Cowin's petition.
Issues Presented
In its original decisions of November 21, 1979, reversing and,remanding
these cases to me, the Commission stated as follows:
We accordingly reverse and remand this case for further
proceedings. In so doing we note that while numerous standards and regulations have been promulgated in implementation
of the 1969 Act, a civil penalty sanction is authorized under
section 109(a) only for a violation of a mandatory standard
or other provisions of the Act. In addition to the other
issues raised, in remanding we instruct the judge to address
the threshhold question of whether 30 CFR § 77.1903(b) is a
mandatory safety standard for which a civil penalty may be
assessed or whether the regulation is merely advisory.

On May 23, 1980, in response to my order of April 1, 1980, directing
the parties to identify the issues remaining for adjudication on remand,
respondent Cowin filed the following statement of issues:
(a) Whether 30 CFR § 77.1903(b) is a mandatory safety
standard for which a civil penalty may be assessed or whether
the regulation is merely advisory?
(b) Whether the Secretary has bypassed applicable MSHA
regulations and prejudiced Cowin by charging it as an operator
at the administrative hearing stage, thereby denying Cowin
access to MSHA's penalty assessment procedures?
(c) If 30 CFR § 77.1903(b) is a mandatory safety standard, was there a violation of that standard, as alleged by
petitioner?
(d) If a violation occurred, what is the amount of the
civil penalty which should be assessed?

On May 21, 1980, petitioner filed its response to my order of April 1,
1980, and identified the issues as follows:
(a) Whether 30 CFR § 77.1903(b) is a mandatory safety
standard for which a civil penalty may be assessed under section 109(a)(l) of the Federal Coal Mine Health and Safety Act
of 1969, or whether the regulation is merely advisory.
(b) If 30 CFR 77.1903(b) is a mandatory safety standard,
whether the violation of said standard as charged against each
of the respondents in fact occurred at the No. 4 Coal Mine.

1894

(c) If so, the amount of civil penalty which should be
assessed against each_oi_ the Respondents pursuant to section
109(a)(l) of the-Federal Coal Mine He~lth and Safety Act of
1969.
Discussion
Although given ample opportunity to do so, respondent Jim Walter
Resources, Inc., has failed to respond to any of my post-remand orders and
has apparently opted not to file any additional argtn11ents or to request any
further hearings. Under the circumstances, I can only. conclude that it has
waived its right to present any additional defense with respect to its position in this matter as a party-respondent, and any decision that I render in
these dockets insofar as it may affect Jim Walter Resources is made on the
basis of the record presently before me. With respect to the remaining
parties, they are in agreement that these cases may now be decided by me
without further hearings on the basis of the present record, including all
of the additional arguments filed by the parties after the Commission's
remand on November 21, 1979.
Findings and Conclusions
Is 30 C.F.R.

§

77.1903(b) a mandatory safety standard or merely advisory?

Section 77.1903(b) states as follows: "The American National Standards
Institute, 'Specifications For The Use of Wire Ropes For Mines,' M 11-1-1960,
or the latest revision thereof, shall be used a guide in the use, selection,
installation, and maintenance of wire ropes used for hoisting."
Respondent Cowin argues that section 77.1903(b) is not a mandatory standard for which a civil penalty may be assessed, but merely an advisory standard which incorporates the voluntary ANSI guidelines and recommendations. In
support of this assertion, respondent states that the ANSI wire rope standards
incorporated by section 77.1903(b) were developed as recommendations and that
the specific ANSI sections relied on by the petitioner as the basis for the
alleged violation are also written in advisory terms. Respondent also argues
that section 77.1903(b) did not change the ANSI standards from advisory to
mandatory by incorporating them as a guide, and that the a9,_visory language
of the standards "should be," "recommended," and "advisory" are retained
totally intact.
In support of its arguments, respondent cites the testimony of MSHA
technical specialist Fred Williams during the hearings (Tr. 332-334), and
concludes that it is evident that the drafters of section 77.1903(b),
including Mr. Williams, deliberately chose not to use the mandatory "shall,"
but rather, intended to leave it up to each contractor to use its judgment
to determine which recommendations to follow. Respondent also points out
that since the wording of section 77.1903(b) differs from that of any other
section of Subpart T in that it is the only section which provides that a
standard shall be used as a guide, while the other sections set forth

1895

specific standards that must be met, it is evident that section 77.1903(b)
was intended to !"_~t~!_n.the_advisory character of the ANSI standards.
Respondent cites two cases decided under the Occupational Safety and
Health Act, Pan American Airways, 1975-1976 OSHD 20,674 (May 5, 1976), and
Edward Hines Lumber Co., 1976-1977 OSHD 21,136 (September 29, 1976), in
support of its argument that where ANSI standards have been the source for
regulations under OSHA they have been found to be advisory and not mandatory,
and quotes from the opinion of OSHRC Commissioner Moran in Pan American that
"A violation of the Act's general duty clause cannot be predicated on a
regulation which is no more than a recommendation."
Finally, respondent argues that the petitioner's assertion that while
the particular ANSI standards themselves may not be mandatory, it is nevertheless mandatory for an operator to use them as a guide is a totally artificial distinction that contorts the meaning of the term "mandatory" and
invites arbitrary application of section 77.1903(b). Even under the petitioner's theory, respondent maintains that a company may adopt wire rope
practices which do not conform with the ANSI recommendations as long as the
company uses those standards as a "guide." Respondent suggests that this
means that under the petitioner's theory, whether or nof-a penalty is
assessed does not de.pend upon whether the company's practices conformed with
identifiable mandatory standards, but depends upon whether the practices were
sufficiently guided by the ANSI recommendations. Thus, if two companies
adopted the same wire rope practices which did not conform with the ANSI
recommendations, the company that used the recommendations for guidan~e would
not be subject to a penalty, but the company that did not use them as a guide
would be subject to a penalty. Respondent concludes that the Act did not
intend such arbitrary results, and that since the ANSI standards underlying
section 77.1903(b) are advisory only, section 77.1903(b) is not a mandatory
safety standard for which a penalty may be assessed.
Petitioner takes the position that section 77.1903(b) is a mandatory
rather than an advisory safety standard, and argues that not only was
30 C.F.R. § 77.1903(b) properly promulgated as a mandatory safety standard
pursuant to the rulemaking procedures of the 1969 Act, but respondent Cowin
actively participated in said rulemaking proceedings (p. 19 of Petitioner's
Posthearing Brief, filed August 28, 1978). Moreover, petitioner asserts that
respondent Cowin specifically stated in its shaft-sinking plans (submitted to
and approved by MESA) that it would comply with the mandatory safety standard
under 30 C.F.R. § 77.1903(b); i.e., it would use the ANSI Standards ("Specifications For The Use of Wire Ropes For Mines," Mll.1-1960) as a guide in the
use, selection, installation, and maintenance of wire ~opes used for hoisting
at the mine construction site (pp. 6-7 of Petitioner's Posthearing Brief).
In response to respondent's assertions that section 77.1903(b) should be
deemed advisory because the incorporated ANSI standards therein consistently
use only the words "should be," "recommended," and "advisable," rather than
mandatory words for their application, petitioner states that this is simply
not true and points out that sections 5.2.1, 6.3.1.1, and 6.3.1.2 are the

1896

most important ANSI standards which respondent failed to use as a guide in
this case, and tha"t_se~tion .1.2.1 states that "care must be exercised in
handling to avoid kinking of the wire rope," etc; section 6.3.1.1 starts out
by stating that "it is essential that tread diameters of sheaves and drums be
liberal," etc; and section 6.3.1.2 starts by stating that "it is essential
that head, idler, knuckle, and curve sheaves and grooved drums have grooves
which support the rope properly." Petitioner asserts that it was the use of
the K4UL tugger hoist wire rope with an undersized sheave and undersigned
drum which caused the kinking, crushing and breaking damage to said rope
which in turn led to its failure and the fatal accident (pp. 5 and 8-14 of
Petitioner's Posthearing Briefs).
Regarding respondent's reliance on the Pan American Airways a~d Edward
Hines Lumber Co., cases, supra, petitioner submits that these cases are
clearly distinguishable from the instant proceedings in that in Pan American
Airways the regulation in question (use of the color yellow to mark tripping
and similar physical hazards), which was derived from an ANSI Standard, was
held to be unenforceable because it failed to tell the employer which objects
were required to bear the caution markings, and thus amounted to a recommendation only. However, petitioner maintains that the important distinguishing
factor of that case is that the Secretary of Labor had adopted the ANSI standard involved as a mandatory safety standard pursuant to section 6(a) of the
Occupational Safety and Health Act of 1970 (the "OSH Act"), without following
the rulemaking procedures provided for under section 6(b) of said Act. In
this same connection, petitioner cited the later OSHA case of Kennecott Copper
Corporation, 1976-1977 OSHD par. 20,860 (July 8, 1976), wherein the Occupational Safety and Health Review Connnission specifically held that the Secretary of Labor's adoption of an ANSI standard (concerning scaffold guarding)
as a mandatory standard, by changing the word "should" to "shall", was
improper for failure to follow the rulemaking procedures under section 6(b)
of the OSH Act.
In Edwind Hines Lumber Co., supra, the second OSHD case cited by respondent, petitioner asserts that it involved a standard which provided that
"power controls and operating controls should be located within easy reach
of the operator," and it was held to be advisory only because the language
was not revised to make the standard mandatory when it was adopted from the
ANSI source. Petitioner submits that this case is also dis-tinguishable from
the one at bar since 30 C.F.R. § 77.1903(b) specifically uses the word "shall"
and therefore is clearly mandatory.
In summary, petitioner maintains that section 77.1903(b) is clearly not
voluntary or advisory because it specifically states that the ANSI standards,
"Specifications For The Use Of Wire Ropes for Mines," Mll.1-1960, shall be
used as a guide in the use, selection, installation, and maintenance of wire
ropes for hoisting. This regulation is obviously a mandatory safety standard
. and was properly promulgated as such pursuant to the rulemaking procedures of
the 1969 Act.
Finally, petitioner argues that section 77.1903(b) has been in effect
now for over 9 years, having been published in final form in the Federal

1897

Register on May 22, 1971 (36 F.R. 9364), and that under the 1969 Act, neither
the Interior Board of Mine Operations Appeals nor an administrative law judge
had the power to-invalidate~a regulation promulgated by the Secretary of the
Interior. This power resided solely in the U.S. courts. Buffalo Mining
Company, 2 IBMA 226 (1973); Peabody Coal Company, 4 IBMA 137 (1975). Petitioner asserts that under section lOl(d) of the Federal Mine Safety and Health
Act of 1977, the exclusive means of challenging the validity of a mandatory
health or safety standard is by filing a petition in the appropriate U.S.
Court of Appeals prior to the 60th day after such standard has been promulgated, and that this obviously applies to new or revised standards promulgated under the 1977 .Act. As for the mandatory health and safety standards
promulgated under the 1969 Act, section 30l(b)(l) of the Federal Mine Safety
and Health Amendments Act of 1977 specifically provides that said standards
shall remain in effect until such time as new or revised standards are issued
by the Secretary of Labor under the new 1977 Act. Thus, under the old law
(the 1969 Act) and under the new law (the 1977 Act), the exclusive power to
invalidate a mandatory health or safety standard lies within the U.S. courts.
No court challenge of 30 C.F.R. § 77.1903(b) has been filed by either respondent herein, or by anyone else for that matter, and said mandatory safety
standard has been specifically continued in effect by the Amendments Act of
1977. Accordingly, petitioner submits that the Commission and its administrative law judges lack authority to declare the subject regulation invalid.
During the course of the prior adjudication in these proceedings, the
arguments presented by the parties addressed the issue of whether section
77.1903(b) was a validly promulgated standard, and whether the ANSI requirements were validly incorporated by reference as part of the requirements of
that section. In its posthearing brief filed with me on August 28, 1978,
respondent Cowin conceded that the ANSI wire rope standard was an integral
part of section 77.1903(b), and its argument that this section is invalid
was limited to the contention that the ANSI standards were invalidly incorporated by reference because of lack of proper notice and failure by the
Director of the Federal Register to give his approval to their incorporation
as part of section 77.1903(b). This contention was originally raised by
respondent Jim Walter in a motion to dismiss filed August 15, 1977, which I
denied on September 21, 1977, and again when I rendered by decisions.
In my findings and conclusions made in my original d~cisions of
October 19, 1978, I found that section 77.1903(b) was a validly promulgated
standard and that the ANSI standards were validly incorporated by reference
as part of that section (Decision, pp. 24-25). Further, I also discussed the
fact that Cowin conceded that the ANSI standards were an integral part of
section 77.1903(b), that it participated in the proposed rulemaking proceedings when the standards found in Part 77 were being proposed as mandatory
safety standards before the Department of the Interior, that Cowin's shaftsinking plans submitted to the Department prior to the issuance of the notice
of violation included certain assurances by Cowin that it will comply with
the requirements of section 77.1903(b), and that Cowin had never taken exception or complained that the ANSI standards were not incorporated by reference
in section 77.1903(b). In addition, I also took note of the fact that part

1898

of Jim Walter's prior history of violations included four separate instances
where it had been ci-ted-for violations of section 77.1903(b), and paid the
civil ·penalties assessed for those violations (Decision, p. 25; Exh. G-25).
When these proceedings were before the Commission on the appeal taken by
the petitioner with respect to my original decision, respondent Cowin characterized section 77.1903(b) as "a mandatory safety standard" (p. 5 of Brief,
filed January 8, 1979, P• 1422 of Commission's official record). In arguing
that the practical effect of the notice of violation served on Cowin in these
proceedings was to charge it with violating the ANSI standards, Cowin again
conceded that "these standards are incorporated, by reference, into 30 C.F.R.
§ 77.1903(b)" (p. 7 of Brief).
Further, during the course of the ~y 16,
1978, hearing, Cowin's counsel asserted that notwithstanding the opinions of
the witnesses with respect to the interpretation and application of section
77.1903(b), "the standard speaks for itself** * and should stand on its own
right" (Tr. 265). As for the intentions of the rulemakers when they promul_gated the standard, Cowin's counsel again asserted that "whatever the intention and opinion of the rulemaker, the standard has to speak for itself" (Tr.
269).
The 1969 USA Standards Mll.1-1960 dealing with the specifications for
and use of wire ropes for mines, Exhibit G-8, contains the following introductory language explaining the intent of the standards:
A USA Standard implies a consensus of those substantially concerned with its scope and provisions. A USA Standard is intended as a guide to aid the manufacturer, the
consumer, and the general public. The existence of a USA
Standard does not in any respect preclude anyone, whether he
has approved the standard or not, from manufacturing, market..;
ing, purchasing, or using products, processes, or procedures
not conforming to the standard. USA Standards are subject to
periodic review and users are cautioned to obtain the latest
editions. Producers of goods made in conformity with a USA
Standard are encouraged to state on their own responsibility
in advertising, promotion material, or on tags or labels,
that the goods are produced in conformity with particular
USA Standards. [Emphasis added.]
In further explanation of the work of the American National Standards
Institute, the last page of Exhibit G-8 contains the following pertinent
statement: "The Standards Institute provides the machinery for creating
voluntary standards. It serves to eliminate duplication of standards
activities and to weld conflicting standards into single, nationally accepted
standards under the designation "American National Standards." [Emphasis
added.]
The 1977 ANSI standards for Base Mounted Drum Hoists, Exhibit R-2,
states as follows, at page 2, section V:

1899

Mandatory rules of this Standard are characterized by
the use of-the word "shall". If a provision is of an
advisory nature..:ft isindicated by the use of the word
"should" and is a recommendation to be considered, the
advisability of which depends on the facts of each situation.
The difficulty with the regulatory language shall be.used as a guide
lies in the fact that it lends itself to a somewhat ambiguous application.
For example, if an operator refers to a particular ANSI standard as a guide
but then decides not to adopt or follow it and instead follows the manufacturer's specifications, which may be different from the ANSI guides, is
he in violation? Since the ANSI standards are incorporated by reference as
part of section 77.1903(b), may the ANSI standards characterized as "recommendations" also be considered incorporated as "recommendations" thereby
rendering them advisory? Conversely, may the incorporated ANSI standards
which use the language "shall" be considered mandatory? Further, one may
conclude that the language in section 77.1903(b), "shall be used as a guide,"
is mandatory, but that any reference to or reliance on any specific ANSI standards may be considered advisory depending on the wording of the particular
standard. Arguably, for purposes of a civil penalty assessment, the regulatory language "shall be used as a guide" may support a-penalty assessment
if it is established that a mine operator failed altogether to use any of
the standards as _guides. Conversely, a valid argument could be made that
if MSHA relies on any specific incorporated ANSI standard to support a proposed penalty assessment, it must first establish that the incorporated
standard relied on to support a civil penalty is couched in mandatory ·rather
than atlvisory terms. And, if it is determined that the specific incorporated
ANSI standard relied upon to support a penalty assessment is advisory rather
than mandatory, it would logically follow that the fact that it was not used
as a guide would be irrelevant. To hold otherwise would place an operator in
a position of being subjected to a civil penalty for failing to use as a
guide an advisory ANSI standard, which standing alone could not serve as the
basis for a civil penalty assessment.
The foregoing situations illustrate the problem presented by the nebulous
language of subsection (b), and in my view it would have been more desirable
to simply require that the ANSI standards be used without qualification. In
other words, deletion of the words "as a guide" would go a long way in clearing up the ambiguity. An inference may be made that since there is no
statutory authority vested in the American National Standards Institute to
promulgate binding mandatory safety standards pursuant to the Act, MSHA
incorporated them by reference as a matter of expediency rather than proposing
and promulgating them through the rulemaking process and then adopting them
individually as part of Title 30, Code of Federal Regulations. However, it
would appear from the record here presented, that even though recognizing the
ambiguous language, MSHA nonetheless opted not to incorporate any specific
mandatory language as part of section 77.1903(b). What it did was to incorporate the entire ANSI requirements as·guides whether they applied to shaft
construction or not, and this conclusion is illustrated by the testimony of
MSHA 1 s witness Fred Willi.ams, a participant in the drafting of the particular

1900

standard in question (Tr. 331-336, May 17, 1978, hearing). Mr. Williams
stated that the ANSI stand~cg;_ were not incorporated as regulations because
"anyone in the shaft sinking business knows which ones to pick out and apply"
(Tr. 334). However, he candidly admitted that the manner in which the
particular w.ire rope in question in this case was installed on the drum is
not covered by an ANSI standard, and he indicated that respondent should
probably have been charged with a violation of section 77.1907(d),'since the
rope in question was not installed in accordance with that standard (Tr. 271).
A further illustration of the confused application of the ANSI requirements in this case is reflected in the testimony of Inspector Kuykendall with
regard to the asserted safety factor of 5 to the rope which broke. He conceded that there are no ANSI standards that require such a safety factor (Tr.
185). Further, although MSHA's case is bottomed in part on the contention
that the rope may have been installed with "hand-held" tension and may have
been wound in the "wrong direction," thereby contributing to the alleged
crushing and peening of the rope, MSHA's expert witness Alameddin, who conducted the laboratory analysis of the rope and prepared a report of the
suspected causes of the rope failure, candidly admitted that the ANSI standards do not prohibit installing a rope with hand-held tension and do not
mention winding it in the wrong direction. He also admittea that in conducting his laboratory analysis, he did not limit his findings to the ANSI
standards, and relied on other industry and manufacturers' recommendations in
selecting the sheave and drum winches used in conjunction with the rope in
question.
In view of the foregoing discussion, and in order to determine the specific ANSI requirements relied upon by MSHA in support of the alleged violation, reference must be made to that part of the accident report which the
Commission believes composes the essential elements of the alleged noncompliance, namely, the ANSI requirements dealing with (1) the minimum ratio of
drum or sheave diameter to the rope diameter, and (2) the excessive wear on
the wire rope in question and the specific ANSI standards relied on by MSHA.
Analysis and discussion of these requirements follows.

In its most recently filed arguments, respondent Cowin identifies the
specific ANSI standards relied on by MSHA in support of the alleged violation
as: 6.3.1.1; 6.3.1.5.1, .2, .3, and .4; 5.2.1; and 6.5.2.1._ Petitioner's
posthearing briefs cite the following ANSI standards which MSHA believes
were not complied with: 5.2.1; 6.3.1.1, .3; 6.3.1.4.1, .2, .3, and .4; and
6.5.2.1. Respondent argues that the consistent use of the words "should be,"
"recommended," and "advisable" in these ANSI standards, rather than the
mandatory "shall be" clearly reflects that the standards are recommendations
and that compliance with them is voluntary rather than compulsory. Respondent maintains that simply incorporating them by reference does not change
the advisory nature of the standards and their advisory nature remain totally
intact. Petitioner's reply to this argument is that the most important ANSI
standards allegedly not followed by respondent, namely 5.2.1, 6.3.1.1, and
6.3.1.2, use such words as "care must be exercised in handling to avoid kinking of the wire rope"; "it is essEmtfal that tread diameters of sheaves and

1901

drums be liberal"; and "it is essential that head, idler, knuckle, and curve
sheaves and grooved.drums have grooves which support the rope properly." In
short, petitioner asserts that the use of such terminology clearly indicates
the mandatory rather than advisory nature of the cited ANSI standards.
I have carefully reviewed the specific language of all of the aforesaid
ANSI standards relied on by the parties and in each insta~ce I can_ find no
language which supports any finding that they are mandatory. As correctly
stated by the respondent in its arguments, the use of the words "should be,"
"recommended," and "advisable" are consistently used. As a matter of fact,
I have been unable to find anyplace where the term "shall" is used, and I
cannot conclude that the use of words "must" and "essential" render the
standards mandatory. Under the circumstances, and after careful review and
consideration of the arguments presented by the parties, I conclude and find
that the respondent has the better part of the argmnent. I conclude that the
specific ANSI standards relied on by MSHA in support of the alleged violation
in this case are advisory guides for voluntary use by the industry. Since
they are incorporated by reference as part and parcel of section 77.1903(b),
I further find that for enforcement purposes they carry the weight of advisory
rather than mandatory requirements for which an operato~_may be assessed civil
penalties for noncompliance. In other words, I conclude that MSHA may not
rely on an advisory ANSI standard as the basis for an assessment of a civil
penalty, and section 77.1903(b) may not be used to support such a penalty
proposal. Although I have consistently concluded that section 77.1903(b) is
a validly promulgated standard, the question of whether it ismandatory and
may support an assessment of a civil penalty in a situation where MSHA cites
it is, in my view, dependent on whether the facts in any given case establish
that bhe specific incorporated ANSI standard relied on by MSHA is advisory or
mandatory and the question of whether an operator's failure to use any ANSI
standard as a "guide" amounts to a violation of section 77.1903(b) would likewise be dependent on whether the particular standard which was not so used
is couched in mandatory or advisory language. Thus, on the facts of this
case, even if I were to make a finding that respondent failed to use any
of the ANSI standards as guides, the crucial question would be whether the
particular standards themselves are deemed advisory or mandatory. Since I
have concluded that they were the former, it matters not that they were not
used as guides. Failure to use a nonmandatory ANSI standard incorporated by
reference as part of section 77.1903(b), does not in-my vt-ew constitute a
violation for which a civil penalty assessment may be levied.
ORDER
In view of the foregoing findings and conclusions, IT IS ORDERED that
Notice of Violation 2 REK, June 16, 1976, charging a vi'olation of 30 c.F.R.
§ 77.1903(b), be VACATED, and that the petition for assessment of civil penalties as to the named respondents in these proceedings be DISMISSED.

Additional Findings and Conclusions
Since my findings and conclusions as to whether the cited standard is
mandatory or advisory are dispositive of these cases it is not necessary for

1902

me to address the qther issues identified by the parties. However, I feel
compelled to make findings31~_ conclusions concerning respondent Cowin's
contention that it was-somehow prejudiced by the failure of MSHA to afford
it access to the Part 100 assessment procedures at the time I ruled that
Cowin could be named as a party-respondent under section 109(a) of the
1969 Act, and these follow below.
Has the respondent Cowin been denied access to MSHA's Part 100 assessment
procedures, and if so, has Cowin been adversely prejudiced in this regard?
Respondent maintains that by permitting the petitioner to amend its
pleadings to name Cowin as a section 109(a) party-respondent, it lia.s been
denied access to the procedural rights afforded under 30 C.F.R. 100.1 et ~·
Respondent points out that these procedures provide that each notice of violation and order of withdrawal shall be reviewed by the Office of Assessments,
which shall make a determination as to the amount of the penalty, if any,
based on six enumerated criteria (Section 100.2). The operator is then
issued an order of assessment (along with work sheets showing how the penalty
was computed), and the operator may: (1) pay the penalty; (2) request a conference; or (3) request a hearing (Sections 100.4(b) and (c)). If a conference is scheduled (and it must be arranged if requeested by the operator),
the Office of Assessments may reevaluate the penalty based on additional
information presented to it, or may decide not to assess a penalty at all.
(Section 106). The operator then has the option of paying the penalty or
seeking a hearing, where an administrative law judge may make a de novo
determination of the amount of penalty to be assessed, if any.
Respondent argues that since it was originally charged as an agent rather
than as an operator, it was not afforded the procedural benefits provided in
MSHA's penalty assessment procedures. It was ·not served with an order of
assessment and proposed penalty prepared by the Office of Assessments, and was
not afforded the opportunity for a conference where the penalty could have
been reevaluated or dropped. By amending the petition at the hearing stage
to charge Cowin as an operator, respondent concludes that the petitioner
has bypassed the preliminary penalty assessment procedures required under
Part 100, and has deprived it of significant procedural benefits. Since the
petitioner's failure to follow its own assessment rules and regulations has
caused actual prejudice to the respondent by depriving it of_ significant procedural benefits, respondent maintains that the petition for assessment of
civil penalty should be dismissed, citing United States ex rel Accardi v.
Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Brennan v.
Gilles and Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); United States v.
Heffner, 420 F.2d 809, 811 (4th Cir. 1969); Atlantic Marine, Inc. v. Occupational Safety and Health Review Commmission, 524 F2d 476 (5th Cir. 1975);
Equal Employment Opportunity Commission v. Hickey-Mitchel Company, 507 F.2d
944 (8th Cir. 1974).
It is clear from the record in this case that the two civil penalty
cases filed by the petitioner against the two individual Cowin employees were
disposed of by settlement when they paid civil penalties for the violation in

1903

question (Tr. 5, May 16, 1978, hearing). Although respondent agreed to the
settlement disposj.tio_P: ,o:L t_h9se two cases without an admission of guilt, the
fact is that the cases were disposed of by settlement and it seems clear to
me that respondent Cowin was well aware of the issues and the terms of the
settlement. While Cowin did not admit any guilt for the violation, it did
agree and concede that the paid settlements for the violation could be considered as part of its history of prior violations (Tr. 6), and since Cowin
and MSHA engaged in prehearing discovery, including interrogatories, it seems
clear they were not oblivious to the issues presented.
With respect to MSHA's proposal for assessment of a civil penalty against
Cowin in this matter, the record reflects that MSHA specifically proposed a
civil penalty assessment of $10,000 for the alleged violation, and a penalty
of $5,000 against respondent Jim Walter Resources (Tr. 352-353). These proposals were served on the respondents in accordance with the applicable statutory and regulatory procedures, and the respondents filed timely answers
contesting the proposed civil penalty assessments.
With respect to the size of Cowin's operations, testimony adduced at the
prior hearing reflects that Cowin is a well-recognized shaft. construction
company and MSHA produced evidence concerning the size· ()f-the mining operation in question and the number of employees employed in this operation (Tr.
348).
With regard to the abatement efforts by the respondents, MSHA pre.sented
testimpny in this regard (Tr. 349-352), and took the position that the conditions cited were abated in good faith and any increases in any penalty
assessment is not warranted because of respondents' failure to timely abate
the violation.
With respect to the effect of the proposed civil penalty on respondent
Cowin's ability to remain in business, that matter was also covered by the
May 16, 1978, hearing and Cowin's counsel stated that while it would affect
the respondent's business, it would not affect its ability to continue in
business (Tr. 349).
As for respondent's Cowin's prior history of violations, that matter was
also covered by the May 16, 1978, hearing (Tr. 342-348) and MSHA's computer
printouts reflecting that prior history was received in evidence and is part
of the original trial record (Exhs. G-25 and G-26).

In view of the foregoing record, and considering the totality of the circumstances presented in these proceedings, I fail to understand the basis for
respondent Cowin's present assertions that it has somehow been prejudiced by
~IBHA's failure to afford it an opportunity to have the violation considered
under Part 100 of MSHA's assessment procedures. In my view, all of the statutory criteria found in section 110 of the Act have been thoroughly presented
and considered, and Cowin has had more than ample opportunity to be heard on
those criteria. More significantly, I assume that during the course of the
prior adjudication of this case, the parties considered the possibility of

1904

a settlement; Since the two individual cases were in fact settled without
trial, it seems obviQµs_:t!l,me that the reason the present case progressed
to the hearing stage was that the parties could not settle it. In short, the
case progressed beyond the contest stage and the hearing held on May 16, 1978,
was de novo and a complete record was made, including the receipt of testimony
and evidence touching on the criteria required to be considered by,me before
any civil penalty assessments is levied. Further, it is clear that a section
109 civil penalty proceeding is de novo and that the penalty assessed therein
is to be determined irrespective of any prior proposed assessment, Boggs
Construction Company, 6 IBMA 145 (1976); Black Watch Coal Corporation, 6 IBMA
252 (1976); Peggs Run Coal Company, Inc., 8 IBMA 27 (1977).
In view of the foregoing, I conclude and find that respondent Cowin has
been afforded all of its procedural rights during the assessment stage of
these proceedings and its argmnents to the contrary are rejected.

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Robert w. Pollard, Esq., Office of the Corporate Counsel, Jim Walter
Resources, Inc., 3300 First Ave. North, Birmingham, AL 35222
(Certified Mail)
William H. Howe, Esq., Timothy J. Parsons, Esq., Loomis, Owen, Feldman,
& Coleman, 2020 K St., NW., Rm. 800, Washington, DC 20006 (Certified
Mail)

1905

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

t 5 JUL 19BO
Civil Penalty Proceeding

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

Docket No. DENV 79-587-PM
A.O. No. 13-00750-05002F

Petitioner

v.
Rock Valley Pit & Plant
ROCK VALLEY CEMENT BLOCK AND TILE,
Respondent
DECISION
Appearances:

Jaylynn K. Fortney, Attorney, U.S. Department of Labor,
Kansas City, Missouri, for the petitioner;
Robert J. Larson, Esquire, Sioux City, Iowa, for the
respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent on March 30, 1979, 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. § 56.9-22. Respondent filed a timely
answer contesting the citatio~, and a hearing was held in Sioux City, Iowa,
on May 1, 1980. Posthearing briefs were waived by the parties, but they
were afforded an opportunity to present oral arguments on the record at the
hearing, and the arguments have been considered by me in the course of this
decision.
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~·
2.

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

3.

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

1906

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, 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 where appropriate in the course of this decision.
In determining the amount of a civil penalty assessment, section ·110(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.
Stipulations
The parties stipulated to the following (Tr. 13-19):
1. Respondent's mining operation at the Rock Valley Pit
and Plant is a small operation in that 7,150 man-hours are
worked on an annual basis, and the mine employs five parttime
workers, three of whom are engaged in year-round operations at
t~e mine site.
2. Respondent's mining operations at the mine site in
question are subject to MSHA's regulatory jurisdiction and are
covered by the Act.
3. The Rock Valley Pit and Plant has no prior history of
citations under the Act.
4. Joint Exhibit J-1 is a diagram of the mine area where
the inspection in question took place.
5. On the date of the inspection in question, no berms
were present in the area or on the alleged roadway cited by
the inspector.
6. At the time of the inspection in question, four pieces
of equipment were being utilized in the area depicted by Exhibit
J-1, namely, two panel trucks, a rubber-tired front-end loader,
and a track-type front-end loader.
7. The parties do not dispute the fact that a fatality
occurred at the mine on May 22, 1978, when a front-end Michigan

1907

loader went over an embankment characterized by MSHA as an
alleged elevated ~aulway or road causing fatal injuries to the
loader operator-(Tr. 27-31).
8. The parties agree that abatement was achieved by
sealing off the dike area where the accident occur~ed (Tr.
71).
Discussion
The section 104(.a) Citation No. 177404, issued by the inspector on
Y.iay 25, 1978, describes the following condition or practice which the
insp.ector believed constituted a violation of 30 C.F.S. § 56.9-22:· "The
outer bank on the 12 foot wide elevated haulroad on top of the south dike
was not provided with a berm to prevent a piece of equipment from driving
over the edge of the roadway."
Petitioner's Testimony and Evidence
MSHA inspector Kenneth R. Harris testified as to his _mining background
and confirmed that he went to the mine on May 24, 1979 ;·-a:t: the instructions
of his supervisor, for the purpose of investigating a fatality which had
occurred there on May 22. He was accompanied ·by MSHA special investigator
Larry Nichols. He described the mining operation as a sand and gravel
dredging operation and indicated that this was his first visit to the mine.
Upon arriving at the mine, he met with company president Conrad Van Zee and
informed him of the purpose of his visit. He was taken to the accident site
by Mr: Van Zee, and the loader which was involved in the accident had been
removed to the maintenance shop and Mr. Van Zee informed him that it was
moved there so as to preclude any further damage to it from flooding from
the nearby Rock River. He identified Exhibit J-1 as a sketch of the accident scene (Tr. 19-25).
Inspector Harris testified that the roadway depicted in Exhibit J-1 was
elevated 10 feet on the inside and outside, was 12 feet wide, and he described
it as U-shaped or "horseshoe" shaped. Material was being excavated from the
back end of a pit by means of a wheel-tracked loader and two dump trucks and
the material was used to construct a dike for flood-contr~l purposes. No
dredging operations were taking place in the immediate area. The material was
transported by the trucks in a o~e-way circular direction on the top of the
dike, and after being dumped it was leveled out by the loader, and the process
was then repeated. No berms were present on the dike roadway where the trucks
and loader were operating. He identified the outer ba~k of the dike roadway
as that portion facing the river on the right side of the one-way traffic
pattern as depicted on Exhibit J-1 (Tr. 32-38).
On cross-examination, Inspector Harris testified that the dike construction activities in question were taking place approximately 300 feet west of
the river, and he did not know whether the river appeared .to be flooding but
indicated that he simply took Mr. Van Zee's word for it. Actual dredging

1908

operations were taking place some 300-400 yards to the east of the dike location, and a screenigg t:Q~~r__was located between the two locations. He
described the loader which was involved in the accident as a rubber-tired
medium-sized machine, indicated that the tires were about 5 feet high, and
he estimated the loader engine size as 150 to 200 horsepower. He also indicated that the berm guidelines require berms of a sufficient size to restrain
vehicles and that as a general rule the berm should be as high as the axle
height of the largest piece of equipment operated on the elevated roadway (Tr.
38-46).

Mr. Harris stated that the question as to whether a 2-1/2-foot berm would
have prevented the front-end loader in question from going over the embankment
would depend on the speed of the vehicle and the width of the berm; He considered the building of the dike to be a mining operation and the materials
being used for this purpose on the day in question was compacted field dirt
and clay but not sand and gravel. The trucks hauled the material to the top
of the dike where it was layered and leveled by the loader. The area was not
a regularly used passageway for vehicles or pedestrians other than the trucks
traveling the area where the dike was being constructed.
Mr. Harris could not define a "roadway" and he indic·ated that the definition of a "roadway" was included as part of the regulatory standards in question. He confirmed that he issued the citation in question and that he used
the word "haulroad" to describe the material being hauled on the road in question during the construction of the dike. He could not cite the specific
regulatory definition of the term "haulroad." Since equipment and pe~ple were
driving on the road, he believed the area cited was a haulroad, and the citation issued because there were no berms (Tr. 47-56). The width of the "roadway" at the point where the accident happened was 31 feet (Tr. 59)~

On redirect, Inspector Harris stated that dredging operations would have
in time been conducted at the dike area, characterized the material being
excavated to construct the dike as overburden, and stated that abatement was
achieved by closing off the roadway entrance and exit ramps (Tr. 60-61).
In response to bench questions, Inspector Harris stated that he did not
know how long the dike construction had been going on, had never inspected
the facility prior to his visit, and no one from mine management offered an
explanation as to why berms were not constructed. Based on his experience
at other mines, he stated that berms are constructed from earthen material or
quarry rock, but indicated that he has never previously encountered a situation where a dike was being constructed as in the instant case (Tr. 63-67).
Respondent's Testimony and Evidence
Conrad Van Zee, president, Rock Valley Cement Block and Tile Company,
testified that his company conducts a surface-mining operation which consists
of pumping sand and gravel out of water. He described the mining operation,
and stated that it includes the removal of overburden to reach the underlying

1909

sand and gravel. The operation also includes the sizing, washing, and stockpiling of the mined material which is pumped through a pipeline or conveyor
belts to an aggregate.plant: Trucks are used only to haul the stockpiled
materials to customers. His company also operates a readymix cement plant
and manufactures concrete block. The mining operation is conducted from
May to the middle of November. During the winter months, three of the five
employees are engaged in plant and dredge repair work (Tr. 82-88).

Mr. Van Zee confirmed that he obtained a copy of the 1977 mandatory
safety standards, and he indicated.that his company is safety-conscious and
has always followed t~e requirements of the law as closely as possible. He
also confirmed that he familiarized himself with the standards as best he
could but was never furnished a copy of the inspector's handbook • . He has
never been cited for other than minor infractions, and since May 22, 1978,
has received two citations for a faulty ungrounded light plug and failure to
sufficiently guard a piece of equipment. Abatement of cited infractions has
always been immediate, and apart from minor cuts, he has. had no lost-time
accidents other than the one in question in this case (Tr. 88-91).
Mr. Van Zee described the dike construction activities taking place on
the day in question and characterized them as efforts .to-prevent water from
the river coming onto the mine and filling the pit. He stated that the primary purpose of the activity was to extend the dikes around the mine property. The dike was used only for flood protection and he asserted that the
dike in question did not have a roadway on the top of it where vehicles or
pedestrians traveled. He confirmed that the width of the top of the dike was
12 feet and that this width was determined to be adequate to withstand the
water pressure. He had never been previously cited for any dike deficiencies
either before or after the accident in question and the instant case presents
the first occasion where he was informed by MSHA that a berm was required (Tr.
91-95).
Mr. Van Zee indicated that he did not consider the top of the dike to
be an elevated roadway, and in his opinion a roadway is one that is regularly
used for haulage by trucks on a day-to-day or year-to-year basis, and he could
not recall discussing the matter with the inspector at the time the citation
issued. None of the other dikes on the mine property had. berms, and the mine
had never been previously cited for failure to construct s~ch berms. He has
not been able to find the definition of a "roadway" as that term is used in
the regulations and he has never been informed by MSHA that the failure to
have berms on the dikes constituted a violation. He confirmed that the height
of the loader wheels were 5 feet and he described its operation as well as the
procedure for constructing the dike. Earlier dike construction utilized a
crawler to push the material, but trucks were subsequently used when the dirt
supply was exhausted (Tr. 96-102).

Mr. Van Zee confirmed that he went to the accident scene and he described
the extent of the slope embankment where the loader overturned as a "gentle
slope" and he believed that a piece of equipment could be driven there without
fear of tipping over. He believed that the accident occurred when the loader

1910

,,

operator, for some unexplained reason, began to back down the slope and while
attempting to compett.i?at_i;__ for. this caused the weight of the loader to shift,
thereby causing it to flip over. In his view, the existence of a berm would
not have prevented the loader from going over the edge (Tr. 102-107).
On cross-examination, Mr. Van Zee stated the dike in question was a continuation of an existing dike which would eventually go around the perimeter
of the entire mine property. Construction of the original dike began in 1963,
but it was constructed by a contractor and no vehicles traveled at the top of
the.dike during that time. He was aware of the fact that berms are required
on an elevated haulway, ·and he described the method and procedure used for the
construction and continuation of the dike. Vehicles and men worked on the
top of the dike for 2 days building it up from an 8-foot level to the 12-foot
level as it existed on the day of the accident. It would have taken an additional 2 days to complete the short duration dike project. He conceded that
a hazard does exist when men and equipment are working on the top of an elevated area without guard railings or berms (Tr. 116-127). He also indicated
that the top of the dike was never used for haulage operations and he has
never considered it to be a roadway (Tr. 128). In his view, a haulroad or
roadway is one which is used to transport the product being mined, namely
sand and gravel, and he does not consider the dike area in question, which
was used to transport material for constructing the dike to be such a haulroad or roadway (Tr. 129-130). He had no previous occasion to construct berms
at the mine because there are no elevated haulroads there (Tr. 134). Although
dike construction was taking place on the day in question, sand and gravel
would eventually be taken out (Tr. 137). The loader met the required applicable safety standards and it was not cited for any infractions (Tr. 138).
Mr. Van Zee also indicated that had overburden been removed and traveling
over the dike area on a regular day-to-day basis, he would consider it to be
a roadway (Tr. 143).
Findings and Conclusions
Fact of Violation
MSHA asserts that it has established that the roadway in question was
elevated, that vehicle traffic used it, and the fact that the berm standard
is found in a section of the regulations entitled "loading, hauling or
dumping" does not limit the application of the standard strictly to such
enumerated activities. MSHA asserts further that its evidence has established that men and materials were transported along the dike roadway, that
it was elevated, and since it had no berms, a violation has been established
(Tr. 151-154).
Respondent takes the position that since the cited safety standard does
not define the term "roadway," it is impossible for a mine operator to ascertain whether he is in violation, and it is unfair to penalize an operator in
such a situation. Respondent asserts further that it had been previously
inspected by MSHA and had never been cited for any berm violations. Respondent also argues that the so-called "roadway" was merely u·sed as a casual

1911

access to the top of the dike and.that the area was never intended to be
used as a roadway and wa~ _!l~t constructed for that purpose. Conceding that
"haulage" was being.done, respondent asserts that it was for the purpose of
building a dike rather than for the removal and transportation of mined
materials over a roadway (Tr. 156-159).
In addition to the lack of a regulatory definition of the term "roadway,"
respondent also suggested that the construction of the dike in question was
not "mining" within the meaning of the Act, and that MSHA has produced no
evidence to establish that sand and gravel was being mined or transported
over the so-called roadway at the time of the inspection (Tr. 62-63; 78).

In view of the foregoing arguments, the issues to be addressed are as
follows:
1). Whether the dike construction activities were "mining" activities
within the meaning of the Act.

2). Whether the dike area in question, which was not protected by berms,
may be considered a roadway within the meaning of the cited_ standard.
3). If the answer to Issue No. 2 above is in the affirmative, was the
roadway elevated?

4). If the answer to Issues Nos. 2 and 3 are in the affirmative, has
a violation been established by MSHA by a prepo~derance of the evidence?
Issue'No. !--Mining Activity
It seems·clear from the testimony presented in this case that on the
day of the accident, and at the time the citation was issued, respondent was
in the process of constructing a dike to prevent possible flood waters from
a nearby river from coming onto and inundating the mine property. In this
connection, top soil or dirt, loosely characterized as overburden, was being
removed by a loader and transported by truck to the top of the dike where it
was dumped and then layered, smoothed out, and compacted by the loader which
went over the embankment. It is also clear that no sand or gravel was being
dredged or "mined" during this time (Tr. 62-64), and MSHA __conceded this fact
(Tr. 64).
"Overburden," as defined by section 56.2, means "material of any nature,
consolidated or unconsolidated, that overlies a deposit of useful materials
or ores that are to be mined." On the facts presented in this case, I conclude that the materials removed for use in the dike construction fall within
this definition, particularly in light of Mr. Van Zee's candid admission that
the sand and gravel underlying the removed materials would eventually be mined
(Tr. 137).
I am not persuaded by the fact that sand and gravel was not being excavated at the time of the inspection, and I find that the removal and loading

1912

of the t9P soil and other materials used for the dike construction, as well
as the actual const~_uc~j~p_9f_~he dike itself, was an integral part of the
mining process. The removal of the material served two purposes. First, it
was used to construct a dike whose purpose was to prevent water from possibly
inundating .the mine. Second, the removal of the material also facilitated
the removal of sand and gravel, since it is clear that these materials would
eventually be mined and removed from the pit area where the trucks were loading. In addition, Mr. Van Zee confirmed the fact that the dike construction
was an on-going project, that the particular dike project in question was a
continuation of an existing dike began in 1963, and that it would eve~tually
cover the perimeter of the mine property.
The definition of the term "coal or other mine" found in section 3(h)(l)
of the Act, particularly subsection (c), includes, "lands, excavation, * * *
workings, structures, or other property including impoundments, retention
dams, * * * used in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits * * *·"
I conclude and find that the facts presented support a conclusion that
the dike construction activities in question were mining activities within the
meaning of the Act and that the dike itself was an integral-and inseparable
part of the mine. Accordingly, respondent's arguments and suggestions to the
contrary are rejected.
Issue No. 2: Was the Dike Area in Question a "Roadway" Within the Meaning
of Section 56.9-22?
It seems clear from the arguments advanced by the respondent that it
believes that the construction to be placed on the term "roadways" as used
in section 56.9-22 is one that would require berms only in those instances
where the road is regularly used day in and day out as a regular truck route
for haulage of materials which have been mined. Respondent believes that
since the alleged roadway in question was used only for the purpose of dike
construction on a short-term or sporadic basis, and since pedestrians and
vehicular traffic did not use the area as a regular haulage route, the dike
area in question was not a roadway within the meaning of section 56.9-22.
The term "roadway" is not defined by Part 56 of the regulations. Respondent's position on this question suggests that since section 56.99-22 is found
under a regulatory heading--"Loading, hauling, dumping," the term roadway,
along with the requirements for berms, should only apply in circumstances
which clearly show that the mined materials are regularly and systematically
loaded and hauled out of the mine along clearly defined. haulage roadways
designated and regularly used for such purposes. In short, respondent suggests a narrow and restrictive interpretation and application of the berm
standard, the thrust of which is seemingly centered on the frequency and
duration for which the "roadway" may be used.
After careful consideration of the arguments presented by the parties, and particularly the facts presented in this case, I conclude that

1913

...

petitioner's position is correct and that respondent's restrictive interpretation must be reje£-~e~.!_aaj m.Y reasons for these conclusions follow.
The intent of the safety standard in question is to provide protection
for men and equipment which are required to travel along elevated roadways
while performing work connected with the mining process, and respondent has
conceded this fact (Tr. 127). The evidence adduced establishes that overburden, as defined by section 56.2, was being removed and loaded at the dike
construction site, and respondent clearly intended to utilize the pit area
from which the materials were moved as part of its regular dredging operation (Tr. 125). Thus, it seems clear to me that materials were in fact being
loaded. Next, the materials were loaded onto dump trucks and hauled along
a clearly defined route, dumped, and leveled by a loader until the·required
dike height was achieved. The fact that this particular project was of a
relative short duration is not critical in my view. Section 56.9-22 makes
no mention as to the frequency or duration for which such roadways are used.
An elevated roadway utilized for a week by trucks and other equipment is no
different, from one used for longer periods of time. A potential hazard
along an unprotected roadway remains a hazard whether it be of short or
long duration, and I believe that section 56.9-22 is intend_ed to prevent
such hazards in both such circumstances.
- --Although the dike construction in question on the day the citation
issued may have been of relatively short duration, it seems clear to me
from Mr. Van Zee's testimony that it was a continuation of an existing dike
system that would eventually ring the perimeter of the entire mine property.
And, while the method of construction apparently varies between the us-e of
a loader which pushes materials to form the dike and the use of trucks to
haul the materials to the top of the dike, in those instances where trucks
and loaders are used to move materials to the top of the dike, I conclude
that the area traveled by such trucks and personnel are roadways within the
meaning of section 56.9-22. Consequently, if such areas are elevated and
unprotected on the outer banks, berms are required.
Issue No. 3--Elevated Roadway
Inspector Harris described the roadway in question and indicated that it
was elevated some 10 feet on the inside and outside bank, and was approximately 12 feet wide. The flow of traffic was in a one-way direction as
depicted on Exhibit J-1, and the outer bank was that portion of the roadway
facing the river, and the width of the roadway at the point where the accident occurred was 31 feet.

Mr. Van Zee agreed with the stated width of the roadway, and while he
characterized its slope at the point of the accident as a "gentle slope,"
he indicated that the dike had been constructed to a height of 12 feet at
the time of the accident.
I conclude and find from the testimony and evidence presented in this
case that the dike roadway in question was elevated above the surrounding

1914

terrain and pit areas where materials were being removed for the dike construction. Accordingly, I conclude that petitioner has established that the
roadway in question-wa-s-- "elevated" within the meaning of section 56.9-22.
Fact of Violation
Respondent conceded and stipulated that no berms were present at the
location cited by the inspector. In view of my findings and conclusions that
the dike area was an elevated roadway, and in view of the fact that it is
clear that the outer bank of that elevated roadway, that is, the elevated
portion facing the riv~r which ran along the mine property at the approximate
scene of the accident, was not protected by a berm, I conclude and find that
petitioner has established a violation of section 56.9-22, and the citation
issued in this case is AFFIRMED.
Size of Business and Effect of Penalty on Respondent's Ability to Remain in
Business
The parties agree that respondent is a small mine operator and I adopt
this as my finding. I also find that the civil penalty assessed by me in
this matter will not adversely affect respondent's ability to remain in
business.
History of Prior Violations
Respondent's mining operation at the Rock Valley Pit and Plant has generated no citations prior to the one in question, and petitioner agrees that
respondent's safety record is "quite good" (Tr. 154). I adopt these facts
as my findings on prior history and this is reflected in the civil penalty
assessed by me in this case.
Good Faith Compliance
Abatement was achieved timely by sealing the dike roadway area off and
the inspector considered this adequate abatement (Tr. 70-71). I conclude
and find that the respondent exercised good faith in achieving compliance in
this case.
Gravity
Although there is no conclusive evidence that a berm would have prevented the accident which occurred in this case, I believe that it is reasonable to assume that a berm would at least have served as a warning to the
loader operator that he was approaching the edge or slope of the roadway
embankment. Further, respondent candidly conceded that a hazard does exist
when men and equipment are working in elevated areas without berms or guards.
Accordingly, I find that the violation in this case was serious •

•
1915

Negligence
Respondent has established that it has never been previously cited for
failure to install berms or guards on any of its other dikes. Although this
is no defense to the violation, it does support respondent's assertion that
it reasonably believed that the elevated dike area characterized by MSHA as
a roadway after the fact was not a roadway requiring a berm. Further, this
is not the first time that MSHA has been prompted by a fatality to apply a
safety standard requiring berms to an elevated area that presents a hazard.
See my decision in MESA v. Peabody Coal Company, VINC 77-102-P, issued
December 13, 1977, where I specifically invited MESA to reexamine the identical regulatory language found in the berm standard applicable to surface
coal mines and surface work areas of underground coal mines, 30 C.F.R.
§ 77.1605(k), for the purpose of communicating understandable, rational,
and workable guidelines for the application of this standard to the mining
industry.
As the parties in this case recognize, the term "roadway" is not defined
in Part 56. Surprisingly, section 56.2 defines the term "highway" (public
street, alley or public road), and the term "travelway," but does not define
haulage road or roadway. Judges Moore and Broderick have-grappled with the
term "roadway" in prior cases involving section 55.9-22, MSHA v. El Paso Rock
Quarries, DENV 79-139-PM, Judge Moore, December 17, 1979, MSHA v. Cleveland
Cliffs Iron Company, VINC 79-240-PH, Judge Broderick, December 3, 1979, and
one would think that MSHA would take note of these decisions and amend Part 56
of the standards and cure the ambiquities that apparently still exist with
the interpretation of this standard, ambiquities which I suggest result from
the brbad and ambiguous language of the berm standard itself.
Although Mr. Van Zee conceded that equipment and men working in an
unguarded elevated dike area were exposed to a potential hazard, I find him
to be an honest, candid, and credible witness and accept his explanation as
to his interpretation of the standard as reasonable. Under the circumstances,
and after careful consideration of all of the facts and circumstances here
presented, I conclude that the respondent could not reasonably have known of
the violation and accordingly was not negligent.
Penalty Assessment
The parties entered into a proposed settlement of this cases but it was
rejected by me when it was filed at the hearing and my rejection was based
on the fact that I considered it to be untimely, (Tr. 4-9; Exh. P-1). In
addition, at the conclusion of the hearing, petitioner's counsel recommended
a civil penalty somewhat lower than that proposed by MSHA's Office of Assessments ($2,500).
It is clear that I am not bound by the initial proposed assessment made
in this case by the petitioner's Office of Assessment. This case was heard
de novo and my finding and conclusions are made on the basis of the evidence
and testimony adduced by the parties. Based on the fact that there is no

1916

direct ev1dence that the fatality which occurred in this case was the result
of the failure to·_pr~yic;le_a_berm. at the scene of the accident, and based
further on the respondent's size, its immediate corrective action, the fact
that it has no prior history of citations under the 1977 Act, and my finding
of no negligence on its part, I conclude that a civil penalty of $850 is
appropriate and reasonable in the circumstances.
ORDER
The respondent IS ORDERED to pay a civil penalty in the amount of $850
within thirty (30) days of this decision. Upon receipt of payment by the
petitioner, this matter is dismissed.

Administrative Law Judge
Distribution:
Jaylynn K. Fortney, Esq., Office of the Solicitor, U.S. Department of
Labor, 911 Walnut St., Rm. 2106, Kansas City, MO 64106 (Certified
Mail)

Robert J. Larson, Esq., Qualley, Larson & Jones, Suite 606, Courthouse
Plaza, Sixth and Dakota, Sioux Falls, SD 57102 (Certified Mail)

1917

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

t 5 JUL 1990
)

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

)
)

CIVIL PENALTY PROCEEDING

)

DOCKET NO. WEST 79-303-M
MSHA CASE NO. 05-02337-05007

)
)

v.

)
)

CLIMAX MOLYBDENUM COMPANY,

DOCKET NO. WEST 79-304-M
MSHA CASE NO. 05-02337-05008

)
)

Respondent.

MINE:

CLIMAX MILL

)
)

~~~~~~~~~~~~~~~~~~~-

DECISION
APPEARANCES:
Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh,
Regional Solicitor, United States Department of Labor, Kansas City,
Missouri
for the Petitioner,
Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado
for the Respondent.
Before:

Judge John J. Morris
WEST 79-303-M
Citation 329190

Petitioner, the Sec'retary of Labor, on behalf of the ·Mine Safety
and Health Administration, charges respondent, Climax Molybdenum Company,
failed to guard electrical equipment.

MSHA asserts that Climax thereby

violated 30 C.F.R. 51.12-30, 1 a regulation promulgated under the statutory
authority of the Federal Mine Safety and Health Act of 1969 (amended 1977),
30

u.s.c. § 801 et seq •

.!/

The cited standard provid_es as follows:
57. _12-30 Mandatory. When a potentially dangerous
condition is found it shall be corrected before
equipment or wiring is energized.

1918

.-.
~~.:

ISSUE

- . -- --

The issue is whether Climax violated the regulations.
FACTS
The evidence is uncontroverted.

I find the following facts to be

credible.
1.

During an inspection the MSHA inspector observed insulated

electrical wires leading from a motor (Tr 6, 10, 26).
2.

The motor, which was cited for the violation of the standard,

lacked a junction box with a bushing.

It was one of 5 motors on the

premises ( 'l'r 6).
3.

__

The inspector was of the opinion that motor vibration could work

the wires loose (Tr 8).
4.

The Climax electrical foreman indicated this 900 r.p.m. motor had

been in use in the mid 1920s (Tr 23).
5.

The motor has a ground wire attached to the frame (Tr 12).

6.

The wires are insulated and there was neither a shock hazard nor a

dangerous condition (Tr 19, 24, 25).
7.

Climax's remaining four motors at this location were designed to

have junction boxes (Tr 19, 23).
;:

DISCUSSION
The federal inspector concedes he is not an electrical expert (Tr 11).
The uncontroverted evidence shows that this particular motor was not
hazardous.

It was designed without a junction box.

on these facts, I conclude that motor was not potentially dangerous as
that term is defined in 30 C.F.R. 57.12-30.

1919

Citation 331894
MSHA charges- ClTmax-dld not guard certain electrical connections
thereby violating 30 C.F.R. 57.12-23. 2
The evidence is essentially uncontroverted.

I find the follow.ing facts

to be credible.
8.

In a 2 to 3.foot wide walkway the MSHA inspector observed

uninsulated bus bars (solid copper bars carrying 440 volts)
9.

(Tr 45 - 47).

The bars, more than 8 feet above the floor, were guarded by

elevation (Tr 69, 71).
10.

There was a 6 foot ladder located within 5 feet (Tr 45).

11.

Workers frequently carry conduit or wire (Tr· 45 -.:.. 47).

12.

The National Electrical Code applies to surface facilities.

Under

the Code live parts of 600 volts or less are guarded by location if they are
elevated 8 feet or IrOre above the floor (Tr 67, RS, R6).
13.

The area was further protected by an insulated mat on the floor

(Tr 66 - 67, 72).
DISCUSSION
This citation should be vacated.

The National Electrical Code provides

that bus bars are protected by location if 8 feet above the floor.

~/

The cited standard provides as follows:
57.12-23 Mandatory. Electrical connections and resistor
grids that are difficult or impractical to insulate shall
be guarded, unless protection is provided by location.

1920

This

interpretation by a recognized electrical authority is confirmed by a
document issued S.y the-·Depa-rtment of Labor construing its own standard (R7).
Petitioner'~

objection to the document is again overruled.

an admission against petitioner's interest.

The exhibit was

It's authenticity is

established by the Climax electrical superintendent who identified it as
written by, and obtained from MSHA (Tr 72 - 76).
At trial MSHA seeks to establish that a location is guarded by height
only if it is 10 feet above the adjoining surface (Tr 49).
stated reasons I reject MSHA's view.

For the above

It appears that the ten foot

requirement only applies on the outside of buildings (Tr 58).
The electrical connections here were at least 8 feet_ above the ground.
They are accordingly "protected by location" as that term is used in 30
C.F.R. 57.12-23.
MOTION
During the hearing petitioner moved to vacate the citations 329188 and
329191.
Pursuant to Commission Rule 2700. 11 the motions should be granted.
WEST 79-304-M
Citation 331868
Petitioner charges Climax failed to guard bus bars thereby violating
57.12-23. 3
The evidence is conflicting.

I find the following facts to be

credible.

ll

The cited standard provides as follows:
57.12-23 Mandatory. Electrical connections and resistor
grids that are difficult or impractical to insulate shall
be guarded, unless protection is provided by location.

1921

14.

There were uninsulated bus bars above the switch gears.

Bus

bars, made of copper~ measured 4 inches wide and 1/4 to 1/2 inch thick (Tr
87 - 89 - 97, 105 - 106).
15.

The bars, carrying 440 volts, were located above a 3 foot wide

walkway (Tr 87 - 92).
16.

The bars were 8 feet 6 inches above the floor resting on 4 inch

insulators, or a total of 106 inches above the floor (Tr 100 17.
gate.

102).

The area under the bus bars can only be entered by opening a metal

Only the Climax electricians have keys to the gate ('l'r 103).
18.

There is no reason for anyone to be under the bus bars with rods,

pipes, or anything of that nature (Tr 104).
19.

The National Electrical Code provides that an area is protected by

location if, as here, it is more than 8 feet above the ground (Tr 104 105).
20.

There were insulating mats on the floor (Tr 104).
DISCUSSION

The inspector indicated the bus bars were ninety inches (7 feet, 6
inches) above the floor but Climax's electrical superintendent indicated the
bottom of the bus bar was 118 inches (9 feet, 10 inches) above the floor.
have accepted Climax's version since the person in charge of the area would
ordinarily make a more accurate measurement than an inspector who was
engaged in looking into various areas.
The discussion concerning the prior citation is equally applicable
here.

In short, 8 feet or more above the floor constitutes "protection by

location" as that term is used in 30 c.F. R. 57.12-23.

1922

I

CONCLUSIONS OF LAW
WEST 79-303-M
Citation 329190 and the proposed penalty therefor should be vacated.
(Facts 1 - 7)
Citation 331894 and the proposed penalty therefor should be vacated.
(Facts 8 -

13)

Citations 329188 and 329191, on petitioner's motion, should be
vacated.
WES'l' 79-304-M

Citation 331868 should be vacated.

(Facts 14 - 20).

Based on the foregoing findings of fact and conclusrons of law, I enter
the following:
ORDER
In Docket Number 79-303-M, Citations 329188, 329190, 329191, and 331894
are vacated.
In Docket Number 79-304-M, Citation 331868 is vacated.

La~

Judge

Distribution:
Roberts. Bass, Esq., Eliehue c. Brunson, Esq., Office of the
Solicitor, United States Department of Labor, 911 Walnut Street,
Room 2106, Kansas City, Missouri 64106
Richard w. Manning, Esq., Attorney for Climax Molybdenum Company,
a Division of AMAX, Inc., 13949 West Colfax Avenue, Golden, Colorado
80401

1923

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
--- 'OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOW~RS NO. 2, lOTH FLOOR
520~ LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6225

I 5 JUL 1980
Civil Penalty Proceeding

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

Docket No. LAKE 79-280-M
A.O. No. 11-02667-05002

v.
Denton Shaft Mine
OZARK-MAHONING COMPANY,
Respondent
DECISION
Appearances:

Michele M. Fox, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for Petitioner;
Mr. M. L. Hahn, Safety and Industrial Relations Director,
Ozark-Mahoning Company, Rosiclare, Illinois, for Respondent.

Before:

Judge Edwin s. Bernstein

On June 10, 1980, I conducted a hearing pursuant to Section lOS(d) of
the Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 801
~~.,

and 29 C.F.R. § 2700.50 ~~., and issued the following decision

from the bench:
This is my bench decision with regard to the proposed
settlement in this case.

The parties have proposed settle-

ments of the four citations in this case as follows:
Citation No. 367103 for $81.00, a reduction from the
amount initially proposed, which was $114.00;
Citation No. 367104 for $78.00, a reduction in the
amount initially proposed, which was $98.00;

1924

Citation No. 367106 for $128.00, a reduction from the
amount initially proposed, which was $160.00;
Citation No., 367107 for $157.00, a reduction from the
amount initially proposed, which was $210.00.
Upon consideration of the motion of the parties and the
arguments presented at this hearing on that motion, I approve
the settlements proposed for all four citations.,

My reasons

are as follows:
With respect to Citation No. 367103, the cit~tion stated
the limit switches were not operating on the hoist.

The

Secretary of Labor alleged a violation of the mandatory
safety standard at 30 C.F.R. § 57.9-2, which reads:
"Equipment defects affecting safety shall be corrected before
the equipment is used."
The parties have stipulated, and I find with respect to
this citation and all other citations, that Respondent was a
small operator; it had a small m.unber of previous violations;
The assessment of the penalty proposed either initially or in
connection with this settlement would not adversely affect
Respondent's ability to continue in business; and Respondent
achieved rapid, good faith compliance in connection with all
citations ..

1925

With respect to Citation No. 367103, I find· ordinary negligence and moderate gravity.

In approving the settlement, I

am impressed by the fact that there was a deadman switch on
the hoist which did provide protection against the accident
envisioned by the citation.

Therefore, I approve the settle-

merit proposed.and assess a penalty of $81.00 for that citat;ion.
Citation No. 367104 stated that a safe means of access
was not provided to the sheave wheels and bucket dump on the
head frame.

The Secretary of Labor alleged a v!_.Qlation of

the mandatory safety standard at 30 C.F .. R .. §57 .ll-1, which
reads:

"Safe means of access shall be provided and maintained

to all working places .. "

In approving the settlement of this

citation, I am impressed by the contentions of the parties
that there was less exposure than the Secretary of Labor had
anticipated, in that only one maintenance person was exposed
and that man had a safety belt, and that there was rapid
abatement of this violation..

Therefore, I assess a penalty

in the amount of $78.00 in connection with Citation No. 367104.
Citation No .. 367106 alleged that the barrier at the
shaft opening was not adequate. The Secretary of Labor
alleged a violation in connection with that citation of the
mandatory safety standard at 30 C.F .R. § 57 .19-100, which
reads:

"Shaft landings shall be equipped with substantial

1926

safety gates so constructed that materials will not go
through. or under them; gates shall be closed except when
loading or unloading shaft conveyances."

The parties have

indicated that a chain eighteen inches from the ground was
installed at the opening; that the opening did have a door;
and that it was company policy to have that door closed,
although that door was open for a thirty-minute period at the
time that the citation was issued.

There was a question as

to whether the door and the chain constituted a substantial
bulkhead.

I find that because the door was provided, and

because this matter does involve that question,

a reduc-

tion in penalty to $128.00 is appropriate in connection with
Citation No. 367106, and I assess a penalty of $128.00 for
that citation.
Citation No. 367107 alleged a man was observed riding
the edge of the bucket while being hoisted out of a shaft.
The Secretary of Labor alleges that this constituted a violation of a mandatory safety standard at 30 C.F.R. § 57.19-68,
which reads:

"Men shall enter, ride, and leave conv-eyances

in an orderly manner."

The parties indicate that at the time

the citation was issued the inspector observed a man riding
the edge of a bucket and the four men who were riding the bucket jumped out of the bucket before the door had closed.
Respondent contended that it did not feel that sitting on the
edge of the bucket and jumping out, in this case, was disorderly.

Another standard at 30 C.F.R. § 57.19-74 reads:

1927

"Men should not ride the bail, rim, or bonnet of any shaft
conveyance, except where necessary for the inspection and
maintenance of the shaft and lining,."
mandatory.

It is advisory.

This standard is not

I think Respondent now realizes

that this conduct was a violation and upon considering all
the criteria in connection with this citation, including
rapid, good faith compliance, I will accept the settlement
and agree to the proposed penalty of $157.00, and I assess
a penalty in that amount for Citation No. 367107.
I hereby affirm this bench decision.
ORDER
Respondent is ORDERED to pay $444 in penalties within 30 days of the
date of this Order.

#--:-s. /. /.1.i--......-z_~- -

Edwin
Bernstein
Administrative Law Judge
Distribution:

Michele M. Fox, Attorney, Office of the Solicitor, u.s Department of
Labor, Eighth Floor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)
M,. L. Hahn, Safety and Industrial Relations Director, Ozark-Mahoning
Company, Rosiclare, IL 62982 (Certified Mail)

1928

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

(703) 756-6225

2 5 JUL 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket Nos.

A.O. Control Nos.

LAKE 79-238
LAKE 79-239
LAKE 79-251
LAKE 79-252
Mine No. 21

11-00588-03041
11-00588-03044
11-00588-03042
__ ll-00588-03043

LAKE 79-240
LAKE 79-241
LAKE 80-40
LAKE 80-80
Mine No. 24

11-00589-03039
11-00589-03041
11-00589-03043
11-00589-03045

LAKE 79-242
LAKE 80-66
LAKE 80-81
Mine No. 25

11-02392-03020
11-02391;-03022
11-02392-03024

LAKE 79-243
LAKE 79-244
Mine No. 26

11-00590-03040
11-00590-03044

Petitioner
OLD BEN COAL COMPANY,
Respondent

DECISION
Appearances:

William c. Pasternack, Esq., ~nd Miguel J. Carmona, Esq.,
Office of the Solicitor, u.s. Department of Labor, Chicago,
Illinois; Robert Cohen, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for the
Petitioner;
Robert J. Araujo, Esq., Chicago, Illinois, for the
Respondent.

Before:

Judge Edwin s. Bernstein

On March 18 and 19, 1980, a hearing was held in Chic ago, Illinois, to
determine if, as alleged in 17 citations referred to in these 13 consolidated

1929

docket nwnbers, Respondent violated the Federal Mine Safety and Health Act of
-~

'

- --

1977 (the Act) and the regulations in Volume 30, Code of Federal Regulations
(C.F.R.), and, if so, what penalties should be assessed in accordance with the
criteria set forth in Section llO(i) of the Act.
The parties stipulated, and I find, that:
1. Four of Respondent's mines are the subject of the
citations involved in these proceedings. They are Mine 21,
Mine 24, Mine 25, and Mine 26.
2. Each of these mines is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, and I have
jurisdiction over this matter.
3. The inspectors who issued the citations gifd-order
were duly authorized representatives of the Secretary of
Labor and properly served the citations on Respondent.
4.

Respondent is an average size operator.

5. The mines listed above are large mines in terms of
production.
6. Respondent has an average history of previous
violations.
7. If a violation is found, the amount of penalty proposed by Petitioner for· each item in issue will not affect
Respondent's ability to remain in business.
The citations were heard in the following order:
1. Citation No. 776637, contained in Docket No. LAKE
80-66, which alleged that Respondent violated the standard
at 30 C.F.R. § 75.520.
2. Citation No. 777024, contained in Docket No. LAKE
80-80, which alleged that Respondent violated the standard
at 30 C.F.R. § 70.210(b) in failing to take respirable dust
samples.
3. Citation No. 773508, contained in Docket No. LAKE
79-238, which alleged that Respondent violated the standard

1930

at 30 C.F.R. § 70.lOO(b) in connection with respirable dust
samples take.n.at-Res-pondent's mine-by Petitioner's inspector.
4. The citations contained in the remaining docket
numbers, in which Petitioner alleged that Respondent violated the standard at 30 C.F.R. § 70.lOO(b) in connection
with respirable dust samples which were taken by Respondent.
Harold Pearce testified for Petitioner and GeoTge Verley testif~ed for
Respondent in connection with Citation No. 776637.

Wolfgang Kaak testified

for Petitioner and Michael T. O'Day testified for Respondent in connection
with Citation No. 777024.

Kirby Webb and Mary Nowakowski testified for

Petitioner in connection with Citation No. 773508.

Thomas Tomb, David

Stritzel, and Paul Parobeck testified for Petitioner in connection with the
remaining citations.
Citation No. 776637
The standard allegedly violated, 30 C.F.R. § 75.520, reads:

"All elec-

tric equipment shall be provided with switches or other controls that are
safely designed, constructed, and installed."
Citation No. 776637 describes the following condition or practice:
The distribution box at the bottom of "B" shaft -was not
safely'designed and constructed in that it contained no apparatus to monitor the grounding circuit and the receptacles
were not arranged for the ground conductor to be broken last.
The distribution box was serving a pump at the shaft sump and
a car puller. Terry Earhart (maintenance foreman) is supervised by Dan Wilkerson, chief elect. The primary power on
box is 480 VAC.
Harold Pearce, the MSHA inspector who issued the citation, testified
that the box was approximately three feet long, three feet wide, 12 to

1931

18 inches deep, and was hung on a wall about three feet off the ground.
The box contained- circ~it breakers and one micro switch which was incorporated into the receptacle.

Mr. Pearce testified that in his opinion the

box was not safely designed because it was not installed with the necessary
safety controls.

He stated that the box should have had a ground-monitoring

system, which is a fail-safe system that prevents the system from being
energized.

Such a system serves as a control device, but is not used to

turn off the power manually.

Mr. Pearce testified that the box was located in a five-foot-wide
passageway at the underground base of a lift, and that app~oximately 305 men
were required to pass through this passageway when going to their jobs and
when leaving at the end of the shift.

Because of this location and the shock

hazard presented by the lack of a ground monitoring system, he considered the
box to be unsafe.
George Verley, the safety director at the mine, testified that the box ·
furnishes power to the sump pump and the lift.

He agreed that the box had no

ground check circuit to break the power if there was a ground failure.

He

explained that the box was operated automatically, and that there were no
manually operated switches or controls on it.
In its excellent posthearing brief, Respondent conceded that the condition alleged by MSHA existed.

However, Respondent challenged the applicabil-

ity of the cited standard to this condition, and claimed that the citation
was insufficiently specific to support a finding of violation.

1932

Respondent contended that "[t]he condition cited by Inspector Pearce
focuses on the gro"Und -.ch~ck ;~nitoring circuit which is neither a switch
nor a control required by § 75.520."

Respondent's Brief at 12.

Respondent

cited various dictionary definitions of the term "switch" to support its
contention that "the switches or other controls to which § 75.520 refers are
devices used to energize or deenergize the power in a piece of electrical
equipment."

Id. at 13; emphasis in original.

Respondent argued that the

terms "control" and "switch" are synonymous.

Old Ben urged that since a

ground check monitoring circuit is an automatic safety device, rather than
a manually operated device, it is not a "switch or other control."
I accept the basic definition of a switch as a device which energizes or
deenergizes the power in a piece of electrical equipment.

However, I do not

believe that a device which would otherwise be classified as a switch ceases
to be so classified simply because it operates automatically.

Respondent

£°ailed to provide any explanation for the words "or other controls" after the
word "switches" in Section 75.520, aside from the conclusory assertion that
the terms are synonymous.

I believe that the phrase "or other controls" is

sufficiently broad to include automatically operated controls, such as the
circuit breakers in this case.

This remedial standard is to be liberally

interpreted to better effectuate the remedial purposes and policies of the
underlying statute. 1/

The standard refers, inter alia, to devices which

deenergize a piece of electrical equipment.
circuit does precisely that.

A ground check monitoring

Accordingly, I find that this device is covered

by Section 75.520.

!:../

See cases cited in note 10, infra, and accompanying text.

1933

Respondent's second argument was that the citation must be vacated
because it does not describe with sufficient particularity the nature of the
violation.

Respondent argued that the citation refers not to the language

of Section 75.520, but rather to 30 c.F.R. I 75.902.

That standard provides,

in pertinent part, that "low-- and medium-voltage resistance grounded systems
shall include a fail•safe ground check circuit to monitor continuously the
grounding circuit to assure continuity which ground check circuit shall cause
the circuit breaker to open when either the ground or pilot check wire is
broken * * *•"

It adds that "[c] able couplers shall be constructed so

that the ground check continuity conductor shall be broken first and the
ground conductors shall be broken last when the couprer-is being uncoupled."
I agree with Respondent that the language of the citation more closely
resembles Section 75.902 than Section 75.520.

However, I do not believ~ that

this renders the citation fatally defective.

The issue here is not whether

MSHA could have cited a "better" standard in its citation, but whether
Respondent violated the standard which was cited.

1/

1./

As the Commission held in Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Jim Walter Resources Inc. and Cowin and Com an ,
1 FMSHRC Dees. No. 8 at 1827 1979 , even if the notice of violation does
not sufficiently specify the standard violated, the notice is not necessarily invalid. The Commission explained:
The primary reasons compelling the statutory mandate of
specificity is [sic] for the purpose of enabling the operator
to be properly advised so that corrections can be made to
insure safety and to allow adequate preparations for any
potential hearing on the matter. We find that these purposes
of section 104(e) have been satisf1ed here. The operators do
not claim any difficulty in being able to identify and thereby
abate the allegedly violative condition. Nor does it appear
that either Jim Walter or Cowin was deprived of notice suffi~
cient to enable them to defend at hearing. They did not
/
I

1934

The uricontroverted testimony of the MSHA inspector indicated that the
-~

>

--

--

distribution box in question was not safely designed and constructed.

There-

fore, Respondent violated 30 C.F.R. § 75.520 as alleged.
As stipulated to by the parties, Respondent was an average size operator;
however, the mine in question was large, Respondent had an average history of
previous violations, and payment of the penalty reconunended would not affect
Respondent's ability to continue in business.

With respect to negligence, I

find that the operator should have been aware of the condition.

As to grav-

ity, the inspector testified that 305 men were exposed to the shock hazard
created by this violation.
abated..

Finally, I note that the condition was rapidly

Upon consideration of these criteria, I assess a penalty of $250.

fn. 2 (continued)
request more specific notice of the alleged violations in prehearing motions, nor did they request a continuance when evidence
regarding alleged noncompliance with specific ANSI standards
was introduced at the hearing. Instead, they defended on the
merits. The operators did not claim prejudice in preparing a
defense until the post-hearing brief where the claim appears in
a perfunctory footnote.
To the same effect is the following statement made by the u.s. Court of
Appeals for the District of Columbia Circuit in National Realty and Construction Company, Inc. v. Occuyational Safety and Health Review Commission, 489 F.2d 1257, 1264 0974 :
__
So long as fair notice is afforded, an issue litigated at an
administrative hearing may be decided ey the hearing agency
even though the formal pleadings did not squarely raise the
issue. This follows from the familiar rule that administrative
pleadings are very liberally construed and very easily amended.
The rule has particular pertinence here, for citations under
the 1970 Act are drafted by non-legal personnel, acting with
necessary dispatch. Enforcement of the Act would be crippled
if the Secretary were inflexibly held to a narrow construction
of citations issued by his inspectors. [Footnotes omitted.]

. 1935

Citation No. 777024
Petitioner contended that Respondent violated the standard at 30 C.F.R.
§

70.210, which requires operators to take respirable dust samples and forward

them to MSHA under ·cert.ain defined conditions.

Respondent did not take and

forward to MSHA any samples for the period between March 30, 1979 and May 9,
1979 for Section 098 at Mine No. 24, although Petitioner directed Respondent
to take such samples for this period of time.

Respondent's defense was that

it was not required to take the samples pursuant to 30 C.F.R. § 70.210 because
a sufficient number of "normal production shifts" did not take place between
these two dates.
Wolfgang Kaak, the MSHA inspector who served the citation, testified
that from March 29, 1979 to April 18, 1979, this section was producing coal,
but from April 19, 1979 through May 9, 1979, it was idle due to a roof fall.
He stated that MSHA required dust samples to be taken on all production
shifts, and that MSHA's computer would void those samples which were taken
during shifts when production was significantly below normal.
Michael O'Day, Respondent's chief mine inspector, identified Respondent's Exhibits 1 through 37.

Exhibits 1 through 7 were Respondent's monthly

production summaries for Mine 24 from September 1978 through March 1979.
These records proved that Respondent's average production for the period from
November 1978 through March 1979 was 42.67 shuttle cars of coal per shift.
Exhibits 8 through 37 were daily production reports which showed the number
of shuttle cars of coal produced during each shift from March 30, 1979 through
May 9, 1979.

This evidence proved that there were only five days during this

period when more than 42.67 shuttle cars of coal were produced during one or

1936

more shifts.

These were (a) March 30, when one shift produced 51 shuttle

cars; (b) April 3, when 60 shuttle cars were produced during one shift; (c)
April 5, when 61 shuttle cars were produced during one shift; (d) April 6,
when 50, 47, and 45 shuttle cars of coal were produced during three shifts;
and (e) April 10, when 60 shuttle cars were produced during one shift.
The standard in question reads:
Section 70.210
of basic sample.

Original sampling cycle; establishment

(a) Samples of respirable dust with respect to each
working section of a coal mine shall be taken on 10 consecutive normal production shifts, each of which is worked on a
separate calendar day, beginning with a normal production
shift completed on or after December 30, 1972, except that,
with respect to working sections located in multisection
mines, original sampling may be conducted in accordance with
the provisions of § 70.241 of this part. An original sampling cycle shall be begun with respect to each working section of a coal mine no later than the 11th day upon which
normal production shifts are worked in that section. For each
working section, this series of 10 samples, or a series of
10 samples submitted in accordance with the provisions of
§ 70.230 of this part, shall constitute the basic sample with
respect to that working section.
(b) Where a working section is opened after December 30,
1972, the original sampling cycle required in accordance with
the provisions of paragraph (a) of this section shall be
begun on a normal production shift (as defined in § 70.220)
on the· first production day in such working section andthereafter on consecutive production shifts (as defined in
§ 10.220).
Respondent contended that it did not violate the standard because "there
were not a sufficient number of normal production shifts (each of which is
worked on a separate calendar day) in which it could have obtained the requisite number of dust samples (ten) prior to May 9, 1979 when the citation was
issued."

Respondent's Brief at 21..

1937

Respondent contended that the critical phrase in 30 C.F.R. § 70.210 is
"normal production shift."

This term is defined at 30 C.F .R. § 70.220(b)( 1)

as follows:
( 1) "Normal production shift" (as differentiated from a
maintenance shift) means a shift during which the amount of
coal produced in a working section is representative of the
average amount of coal produced in such working section during all production shifts worked during the life of such
working section or during the six months immediately preceding such production, whichever· is the shorter period. With
regard to a new working section, a "normal production shift"
means a shift during which the amount of coal produced is
comparable to the amounts produced during normal production
shifts in other comparable working sections.

Respondent argued that it had, at most, only five--Ii~~al production
shifts between March 30 and May 9, 1979.
reasoning.
§

I

am

unable to accept Respondent's

The definition of "normal production shift" at 30 C.F .R.

70.220(b)(l) speaks of a shift during which coal production is representa-

tive of the average production in the section during either the life of the
section or the six-month period immediately preceding such production.

The

definition does ~ require that coal production be equal to or greater than
the relevant average.

Respondent's argmnent is based on Mr. O'Day's testimony

as to the nmnber of shifts "which met or surpassed- the· average production"
during one of the periods specified in the definition.
at 25.

See Respondent's Brief

Respondent's challenge is thus based on an incorrect interpretation

of the phrase "representative of" in Section 70.220(b) ( 1).
Nevertheless, I believe that this citation must be vacated.

I

find that

there were not ten shifts during the relevant period when production on the
section was "representative of" the 42.,67 shuttle car average over ·the previous six months.

Admittedly, on each of the five days listed above,

1938

production on one or more shifts surpassed the 42.67 car average.

There

was thus at least one "normal production shift" on each of these days.
Further, on April 9, 1979, when one shift produced 42 cars of coal, there
was a "normal production shift."

There also may have been a "normal produc-

tion shift" on April 4, 1979, when 37 cars were produced on one shift.

This

would bring the total number of "normal production shifts, each of which
is worked on a separate calendar day," to seven.

During the remainder of

the period under scrutiny, all working shifts on the section yielded between
10 and 28 shuttle cars of coal.

I do not find that production on any of

these shifts was "representative of" the 42.,67 shuttle car average figure.
Thus, at best, the section had seven "normal production--shifts, each of
which is worked on a separate calendar day."

The regulation states that 10

such shifts must take place before an operator's duty to establish a basic
sampling cycle arises,.

Since no duty arose on Respondent's part, there was

no violation of 30 C.,F.R. § 70.210.

Therefore, Citation No. 777024 is

VACATED.
The 15 Citations Issued Pursuant to 30 C.F.R. § 70.lOO(b)
The remaining 15 citations involved Petitioner's contention that the
cumulative concentration of respirable dust in Respondent's mine areas
exceeded allowable levels as those levels are defined in 30 C.F .R.
§ 70,.lOO(b).

That standard reads:

Effective December 30, 1972, each operator shall continuously
maintain the average concentration of respirable dust in the
mine atmosphere during each shift to which each miner in
the active workings of such mine is exposed at or below
2.0 milligrams of respirable dust per cubic meter of air.

1939

lhesamples which resulted in the issuance of. Citation No. 773508,
in Docket No. LAKE 79.:.'23~, were taken by the MSHA inspector, while the samples which resulted in the issuance of the other 15 citations were taken by
Respondent and evaluated at Petitioner's laboratory.
Respondent's only evidence with regard to these citations consisted of
Petitioner's responses to its requests for admissions. 1/

Respondent's

defense was that, as a matter of law, the Secretary of Labor's procedures
and regulations do not comply with the applicable statutes.
]./ Request No. 1 read: "lhe Secretary and the Secretary of Health, Education and Welfare, as of October 8, 1979, have not approved. any device for the
taking of accurate samples of respirable dust in the miiie atmosphere to which
each miner in the active workings is exposed."
Petitioner's answer to that request read as follows:
Denied. lhe Secretary of Interior and the Secretary of
Health, Education and Welfare approved devices for taking
accurate samples. Pursuant to Section 301(c)(2) of the Amendments Act, 30 U.S.C. § 30l(c)(2), the devices approved by the
Secretary of Interior remain in effect until modified by the
Secretary of Labor.
Request No. 2 read: "lhe Secretary and the Secretary of Heal th, Ed ucation and Welfare, as of October 8, 1979, have not approved a device for
measuring respirable dust."
Petitioner's answer to that request read as follows:
Denied. lhe Secretary of Interior and the Secretary of
Health, Education and Welfare have approved devices for
measuring respirable dust. Pursuant to Section 301(c)(2) of
the Amendments Act, 30 U.S.C. § 96l(c)(2), the devices remain
in effect until modified by the Secretary of Labor.

1940

With regard to these citations, the parties further stipulated, and I
find:
8. The respirable dust samples upon which the citations were based were taken with MSA (Mine Safety Appliance)
Model G respirable dust sampling devices. These devices were
initially approved for use by the Secretary of the Interior
and the Secretary of Health, Education, and Welfare under
30 C.F.R. Part 74 and said approval has not been withdrawn or
rescinded.
9. With the exception of Citation No. 773508 (Docket
No. LAKE 79-238) all respirable dust samples were taken by
Respondent through duly authorized and trained personnel
pursuant to 30 C.F.R. Part 70.
10. Citation No. 773508 (Docket No. LAKE 79-238) was
based upon samples taken by an MSHA inspector during the
course of an inspection.
11. All respirable dust samples collected by Respondent
were taken with properly calibrated and functioning MSA
Model G devices. The samples were properly sealed and mailed
to the MSHA laboratory in Pittsburgh, Pennsylvania.
12. Citation No. 9940663 (Docket No. LAKE 79-238) was
issued on February 1, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The
10 samples collected indicated an average concentration of
2.24 milligrams of dust per cubic meter of air in the working
environment of the high risk occupation in Section 048-0 of
Mine No. 21.
13. Citation No. 773508 (Docket No. LAKE 79-238) was
issued on April 11, 1979, and is based upon three samples
taken by the inspector to determine compliance with the
respirable dust standard set forth at 30 C.F.R. § 70.lOO(b).
The samples collected indicated an average concentration of
3.6 milligrams of dust per cubic meter of.air in the working
environment of the shear operator in Section 090 of Mine
No. 21.
14. Citation No. 9940684 (Docket No. LAKE 79-239) was
issued on April 5, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The 10
samples collected indicated an average of 2.17 milligrams
of dust per cubic meter of air in the working environment of
the high risk occupation in Section 100-0 of Mine No. 21.

1941

15. Citation No. 9940664 (Docket No. LAKE 79-240) was
issued on February 1, 1979, and is based upon six respirable
dust samples-taken-pursuant to 30 C.F.R. Part 70. The six
samples had a cumulative concentration of 23.7 milligrams of
dust per cubic meter of air in the working environment of the
high risk occupation in Section 97-0 of Mine No. 24.
16. Citation.No. 9940688 (Docket No.· LAKE 79-240) was
issued on April 13, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The 10
samples collected indicated an average concentration of
2.17 milligrams of dust per cubic meter of air in the working
environment of the high risk occupation in Section 88-0 of
Mine No. 24.
17. Citation No. 9940693 (Docket No. LAKE 79-241) was
issued on May 2, 1979, and is based upon nine respirable dust
samples taken pursuant to 30 C.F.R. Part 70. The nine
samples collected indicated a cumulative concentration of
25.4 milligrams of dust per cubic meter of air in the working
environment of the high .risk occupation in Section 99-0 of
Mine No. 24.
18. Citation No. 9940694 (Docket No. LAKE 79-241) was
issued on May 17, 1979, and is based upon 10 respirable dust
samples taken pursuant to 30 C.F.R. Part 70. The 10 samples
collected indicated an average concentration of 2.ll milligrams of dust per cubic meter of air in the working environment of the high risk occupation in Section 84-0 of Mine
No. 24.
19. Citation No. 9940674 (Docket No. LAKE 79-242) was
issued on February 22, 1979, and is based upon nine respirable dust samples ·taken pursuant to 30 C.F.R. Part 70. The
nine samples collected indicated a cumulative concentration
of 21 milligrams of dust per cubic meter of air in the working environment of the high risk occupation in Section 10-0
in Mine No. 25.
20. Citation No. 9940690 (Docket No. LAKE 79-243) was
issued on April 18, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The
10 samples collected had an average concentration of
2.52 milligrams of dust per cubic meter of air in the working
environment of the high risk occupation in Section 002-0 of
Mine No. 26.
21. Citation No. 9940689 (Docket No. LAKE 79-244) was
issued on April 13, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The

1942

10 ~amples collected had an average concentration of
2 .52 milligrams of dust per cubic meter of air in the working environmeritof-the high risk occupation in Section 081-0
of Mine No. 26.
22. Citation No. 9940678 (Docket No. L~E 79-251) was
issued on March 14, 1979, and is based upon nine respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The nine
samples had a cumulative concentration of 21.0 milligrams of
dust per cubic meter of air in the working environment of the
high risk occupation in Section 104-0 of Mine No. 21.
23. Citation No. 9940659 (Docket No. LAKE 79-252) was
issued on January 22, 1979, and is based upon five respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The five
samples had a cumulative concentration of 26.5 milligrams of
dust per cubic meter of air in the working environment of the
high risk occupation in Section 70-0 of Mine No. 21.
24. Citation No. 9940706 (Docket.No. LAKE 80-40) was
issued on June 26, 1979, and is based upon 10 respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The 10
samples had an average concentration of 2.15 milligrams of
dust per cubic meter of air in the working environment of
the high risk occupations in Section 017-0 of Mine No. 24.
25. Citation No. 9940700 (Docket No. LAKE 80-66) was
issued on June 4, 1979, and is based upon 10 respirable dust
samples taken pursuant to 30 C.F.R. Part 70. The 10 samples
had an average concentration of 2.16 milligrams of dust per
cubic meter of air.
26. Citation No. 9940703 (Docket No. LAKE 80-81) was
issued on June 18, 1979, and is based upon nine respirable
dust samples taken pursuant to 30 C.F.R. Part 70. The nine
samples had a cumulative concentration of 26.6 milligrams of
dust per cubic meter of air.
27. Although Respondent has stipulated to the- average
concentration of dust per cubic meter of air found in the
samples collected and used by Petitioner as the basis for
the citations in issue, Respondent does not stipulate that
said samples establish violations of the Act or that the
dust collected and weighed is respirable and has a causal
relationship to pneumoconiosis.

1943

With regard to Citation No. 773508, which involved samples taken by an
MSHA inspector ~-Pet-itio-ner-1 s witnesses were the MSHA inspector and the MSHA
lab technician who calibrated the sampler.
Mr. Kirby Webb, an MSHA coal mine inspector based at the Benton,
Illinois, office, testified that he took samples at Respondent's Mine No. 21,
Section ID90, on April 5, April 9, and April 10, 1979.

This was a working

section on which a longwall mining machine was used.

For sampling, Mr. Webb

utilized an MSA Model G dust sampler on each occasion.

On each date, he

took five samplers into the mine at the beginning of the shift.

Before

bringing the samplers into the mine, they were calibrated by Mary Nowakowski,
an MSHA lab technician at the Benton office.

---

At the start of the shift,

before distributing the samplers, Mr. Webb checked the air flow and adjusted
it by use of a screw provided for that purpose.

He sampled at five locations

on the shift, placing samplers near the shear operator, jack man, shuttle
car operator, repairman, and at a fifth location that he does not recall.
The samplers were placed approximately three feet from the working face.
Each sampler remained in the section during the eight hour shift, except
for possibly half an hour when, if the individual_who had the sampler went
to lunch, he might have taken it with him.

Mr. Webb returned to the section

to check the devices approximately three times.
At the end of the shift, around 3:50 p.m., Mr. Webb collected the samplers.

He returned to his office and removed the cassettes from the pumps,

dried the cassettes by use of a desiccator, weighed the samples, and noted
the net weight gain of each one.

He then put the samples in a plas.tic bag

and left' them to be mailed for testing.

1944

Mary Nowakowski testified that she was a mining and engineering technician at MSHA' s Benton-.of-fie-e.

She described her duties as to "calibrate

and maintain the personal dust samplers and • • • maintain records on the
maintenance and calibration of each pump, and • • • weigh and record the
samples collected on the dust pumps."

She stated that she examines any

samples which have a weight gain of "1.8 or greater" under a microscope to
check for oversized particles, and then sends the samples to the Pittsburgh
Technical Support Center for quartz analysis.

She also testified that she

desiccates and weighs certain operators' samples.
Thomas F. Tomb testified that he is a supervisory physicist in the dust
branch of the Pittsburgh Technical Support Center.

Thisf~cility processes

all dust samples that are collected by coal mine operators in the continental
United States.

He has considerable experience in respirable dust research,

and has authored a number of professional publications on the_ subject.
Mr. Tomb focused his testimony on the use of the MSA Model G unit.

He stated

that this device, which was used to establish the violations in these cases,
was approved by the National Institute for Occupational Safety and Health
of the Department of Health, Education, and Welfare for performance, and
by the Department of the Interior for intrinsic safety (i_.~., to ascertain
whether it would be safe to use in explosive atmospheres).
The personal sampler which was submitted into evidence consists of a
pump which is worn on the miner's belt and a collection unit which is worn
on the miner's chest connected by a rubber hose. 4/

!!:_/

Mr. Tomb described the

A personal sampling unit is worn by the individual miner during a working shift to measure the amount of dust to which he is exposed. Personal

1945

f:'

relative_efficiency of personal samplers and MRE devices in screening out
dust particles which-·are-too large to be respirable.

In support of this

testimony, Petitioner introduced into evidence a graph which depicted the
percentage of various sized dust particles which will be collected by these
two devices, and compared these percentages with the accepted percentages
of similarly sized particles which will be deposited in the lungs after being
inhaled.
sion.

See Petitioner's Exhibit 24, attached as an Appendix to this Deci-

Mr. Tomb stated that in his opinion, the MSA Model G represented "the

state of the art" in personal respirable dust sampling equipment.
fn. 4 (continued)
.units are to be distinguished from units such as the MRE-Gravimetric Dust
Sampler, developed by the Mining Research Establishment of England's National
Coal Board. The latter device is considerably larger in size and is placed
in a particular area of the mine, rather than worn by an individual min~r.

In Eastern Associated Coal Corporation, 7 IBMA 14, 30 (1976), the
Interior Board of Mine Operations Appeals described the operation of a
personal air sampler as follows:

* * * This device is a unit which is purchased by an operator
and worn by the individual miner. Each device is supposed to
duplicate the behavior of the human ·respiratory system which
draws in air, filters larger particulates, and allows others
to reach the lungs. Air is drawn into a sampler by a pump and
battery-driven motor. It passes through a nylon cyclone 10 mm.
in diameter which is supposed to separate the respirable from
the nonrespirable particulates. Theoretically, only the former
reaches the filter where the particulates are captured. The
filter is the analog of the lobes of a human lung. -The manufacturer of the personal air sampler weighs each
filter before sealing it in the device and records the weight
on an attached data card. After the sample is collected, the
sampler is forwarded to a MESA laboratory. * * *
At the laboratory, each sampler is opened and among other
things the filter is weighed so that a comparison can be made
with the weight recorded on the data card by the manufacturer.
Theoretically, the result reflects the weight of the particulates which were being deposited on the lungs of the wearer of
the sampler at the time the sample was taken.

1946

Mr.

Tomb discussed the various "sampling cycles" which the regulations

require MSHA to einploy_.in--0r-der to determine compliance with the respirable
dust standard at 30 c.F.R. § 70.lOO(b).

He was asked whether a violation

of Section 70.lOO(b) could be established on the basis of fewer than 10
samples.

He replied in the affirmative, explaining that the regulations

require compliance with the 2.0 milligram standard as an average over 10
shifts.

Thus, once the cumulative concentration of dust in a set of samples

exceeded 20 milligrams, a violation would be established.

For example, one

of the citations involved in these cases was based upon only six samples.
The cumulative weight of the dust in these samples was 23.7 milligrams.

Mr.

Tomb justified the issuance of the notice of noncomplianc~ in this case by
stating that "if you added the other four samples, assuming that the concentration of those four samples was zero, and divided the cumulative concentration by ten, you still would have exceeded the respirable dust standard of
2.0 milligrams per cubic meter."

Mr.

Tomb was unaware of any statutory or

regulatory authority which provided for a determination of compliance or
noncompliance with the standard on the basis of fewer than 10 samples, but. he
stated that such a procedure is set forth in the MSHA inspector's manual.

2_/

Paul Parobek, a supervisory chemist for MSHA who directs a laboratory
that process.es dust samples, also testified.

He described the procedures

which his facility employs for determining whether dust samples comply with
5/ At the hearing, Respondent indicated that it would challenge the Secretary' s compliance with his own regulations in issuing citations which were
based on fewer than ten samples. However, after the hearing, Respondent
withdrew this issue from its contest.

1947

the standard.

In brief, the personal sampler units collect respirable dust

on a filter whicli-is-encapsulated in a plastic cassette.
weighed before being used in the sampler.

The cassette is pre-

After it is used for a complete

.working shift, it is returned to the laboratory,

place~

remove any accumulated moisture, and reweighed.

By comparing the weights

in a desiccator to

before and after sampling, the amount of respirable dust to which the miner
was exposed during the shift can be determined.

Procedures also exist for

determining whether a particular sample may have been contaminated by oversized particles.

These procedures involve a microscopic examination of the

sample with a special device which allows the laboratory technician to
recognize oversized particles.
Pet~tioner's

final witness, David Stritzel, stated that he is a super-

visory coal mine technical specialist with MSHA.

His duties include managing

a group of engineers and other specialists who work in the fields of respirable dust, noise control, roof control, ventilation, and certain enforcement
activities relating.to electrical problems.

He testified that he was familiar

with Respondent's operations.in Illinois, and that in his opinion, Respondent
had the worst record of any company in the Benton subdistrict of compliance
with the respirable dust standards.
Applicable Statutes and Regulations
Section 202(e) of the Federal Coal Mine Health and Safety Act of 1969
(the 1969 Act) provided, prior to amendment:
References to concentrations of respirable dust in this
t1tle means the average concentration of respirable dust if

1948

measured with an MRE instrument or such equivalent concentrations if measured with another device approved by the Secretary and toe Secretary of Health, Education, and Welfare. As
used in this title, the term "MRE instrument" means the
gravimetric dust sampler with four channel horizontal elutriator developed by the Mining Research Establishment of the
National Coal Board, London, England.
Section 318(k) of the 1969 Act provided, prior to amendment:
For the purpose of this title and title I I of this Act,
the term -

*

*

*

*

*

*

*

(k) "respirable dust" means only dust particulates 5 microns
or less in size * * *
Section 202 of the Federal Mine Safety and Heal~b-Amendments Act of
1977 (the Amendments Act) reads:
(a) Section 202(e) of the Federal Coal Mine Health and
Safety Act of 1969 is amended to read as follows:
"(e) References to concentrations of respirable dust in
this title mean the average concentration of respirable dust
measured with a device approved by the Secretary and the
Secretary of Health, Education, and Welfare."
(b) Section 318(k) of the Federal Coal Mine Health and
Safety Act of 1969 is repealed.
Section 30l(c)(2) of the Amendments Act reads:
All orders, decisions, determinations, rules, regulations, permits, contracts, certificates, licenses, and privileges (A) which have been issued, made, granted, or allowed
to become effective in the exercise of functions which are
transferred under this section by any department or agency,
any functions of which are transferred by this section, and
(B) which are in effect at the time this section takes
effect, shall continue in effect according to their terms
until modified, terminated, superseded, set aside, revoked,
or repealed by the se·cretary of Labor, the Federal Mine

1949

Safety and Health Review Commission or other authorized
officials, by any court of competent jurisdiction, or by
operatiori.._Df _law.- -Section 307 of the Amendments Act reads:
Except as otherwise provided, this Act and the amendments
made by this Act shall take effect 120 days after the date of
enactment of this Act. * * * The amendment to the Federal
Coal Mine Health and Safety Act of 1969 made by section 202
of this Act shall be effective on the date of enactment.
Section 202(b)(2) of the 1977 Act reads:
Effective three years after the date of enactment of
[the 1969 Coal Act], each operator shall continuously
maintain the average concentration of respirable ciust in
the mine atmosphere during each shift to which-e;ch miner
in th_e active workings of such mine is exposed at or below
2.0 milligrams of respirable dust per cubic meter of air.
Section 202(e) of the 1977 Act ~eads:
References to concentrations of respirable dust in this
title mean the average concentration of respirable dust
measured with a device approved by the Secretary and Secretary
of Health, Education, and Welfare.
30 C.F.R. § 70.lOO(b) reads:
Effective December 30, 1972, each operator shall continuously maintain the average concentration of respirable dust
in the mine atmosphere during each shift to which each miner
in the active workings of such mine is exposed at or below
2.0 milligrams of respirable dust per cubic meter of air.
Decision for the Citations Issued Pursuant to 30 C.F.R. § 70.IOO(b)
Respondent argued that there is no valid respirable dust program
because t~e 1977 Act specifically delegated the authority to approve

1950

respirable dust measuring devices to the Secretary of Labor and the Secretary
of Health, Education, ·anC:l Welfare, and since the Secretary of Labor has not
done this, "the fundamental requirement of Section 202(e) [of the 1977 Act]
has not been met."

Respondent's Brief at 35, 42.

I disagree.

The 1969 Act contained two definitions of respirable dust.

Section

202(e) stated:
References to concentrations of respirable dust in this
title means the average concentration of respirable dust if
measured with an MRE instrument or such equivalent concentrations if measured with another device approved by the Secretary and the Secretary of Health, Education, and Welfare

***

6/

Section 318(k) of the 1969 Act stated, '"respirable dust' means only dust
particulates 5 microns or less in size***·"
In Eastern Associated Coal Corporation, Docket No. MORG 73~131-P ~al.
(December 16, 1974), the contractor challenged the dust program which the
Department of the Interior developed after the 1969 Act, alleging that the
statutory definitions were inconsistent.

Eastern claimed that the MRE

instrument and other instruments approved by the Secretaries of the Interior
and Health, Education and Welfare and used as a basis for such citations did
not screen out particulates larger than five microns in size.

Judge Moore

agreed and vacated the citations based upon his finding "that the instruments
do collect particles larger than the statutory definition of respirable dust.''
~/

Section 3(a) of the 1969 Act defined "Secretary" as "the Secretary of
the Interior or his delegate."

1951

On

appeal, the Interior Board of Mine Operations Appeals (IBMA) first

reversed Judge &.ore.!.s- dec-i-sion (see 5 IBMA 185 (1975)), but then affirmed
it upon reconsideration (see 7 IBMA 14 (1976)).

The decision applied to the

MRE instrument as well as two personal samplers approved by the two
Secretaries.
The Board stated:
On the basis of the record as described above, we find
that MESA has been systematically ignoring the legislative
definition of the term "respirable dust" as meaning "* * *
only dust particulates 5 microns or less in size." * * *
[I]t follows that the data memorialized in these notices,
purporting to show alleged concentrations of ''respirable
dust," represent as well the weight of some parti~11lates
which are oversize if the legislative 5-micron definition is
applicable. [Emphasis by the Board.]
7 IBMA at 34.
The Eastern Associated decision triggered prompt congressional action.
Section 202 of the Amendments Act of 1977 repealed the five-micron definition and rewrote Section 202(e) of the 1969 Act to define respirable dust as
"the average concentration of respirable dust measured with a device approved
by the Secretary and the Secretary of Health, Education, and Welfare." 21

21

There is little doubt that the deletion of the five-micron definition
was a direct result of the Board's decision in Eastern Associated Coal
Corporation. Respondent directed my attention to the Conference Committee
Report on the 1977 Act, which stated that the changes were made "in order to
eliminate apparently conflicting definitions of respirable dust which have
threatened to interfere with the civil penalty enforcement of the dust
sampling program established in Section 202 of the Coal Act." Respondent's
Brief at 44, quoting S. Rep. No. 95-461, 95th Cong., 1st Sess. 63 (1977),
reprinted in Legislative History of the Federal Mine Safety and Health Act
of 1977 1341 (1978).

1952

The Senate Report on the 1977 Act contained the following explanation
of these changes:-·
Respirable Dust
Section 318 of the Federal Coal Mine Health and Safety
Act of 1969 is amended by deleting subsection (k) which
defines respirable dust in terms of dust particles 5 microns
or less in size •. The new definition in subsection (e)
defines respirable dust in terms of average concentration, a
method of determining the amount of dust in a mine atmosphere
on the basis of weight. Since all devices approved by the
Secretary and the Secretary of Health, Education and Welfare
measure respirable dust on the basis of weight, arther [sic]
than particle size, this amendment is necessary to make the
definition of respirable dust conform to the approved method
of sampling.
S. Rep. 95-181, 95th Cong., 1st Sess. 51 (1977), reprinted in Legislative
History ·of the Federal Mine Safety and Health Act of 1977 639 (1978).
The pivotal issue in connection with these citations involves the interpretation of Section 202(e), as amended.

The statute defines respirable dust

as dust measured by "a device approved by the Secretary and the Secretary of
Health, Education, and Welfare."

If this phrase is read as meaning "a device

to be approved by the Secretary of Labor and the Secretary of Health, Education, and Welfare subsequent to the effective date of this section," the
citations must be vacated.

This is because there were no-such approvals as

of the dates the citations were issued.

On the other hand, if the statute

means "a device approved since the effective date of the 1969 Act by the
Secretary of the Interior and the Secretary of Health, Education, and
Welfare," the citations must be affirmed.

1953

Respondent's argument is based upon three recent decisions in which
Judge Moore concluded-thac ,-"there is not and never has been a valid
enforceable respirable [dust] program"!' * *·"

MSHA v. Olga Coal Co., Docket

No. HOPE 79-113-P (1979); ~ v. Alabama By-Products,_ Docket No. SE 79-110
(1980); and MSHA v. North American Coal Corp., Docket No. LAKE 79-118
( 1980). :§../
In Olga, he stated:

* * * While it is true th.at section 30l(c) (2) of the Amendments Act does provide that regulations under the old Act
will remain in effect until reversed by the Commission or
other appropriate authority, that does not have the effect of
perpetuating the old definition of respirable dus~»- -rnaf
definition was specifically repealed on November 9, 1977, and
the Amendment was specifically made effective on the date of
enactment rather than 120 days later as were the other provisions of the Act. The new definition of respirable dust is
dependent upon a device "approved by the Secretary [of Labor]
and the Secretary of Health, Education and Welfare." As far
as I have been able to determine, the Secretary of Labor has
not joined the Secretary of Health, Education and Welfare in
approving devices for the collection of respirable dust. If
that is true, there has been no effective standard since
November 9, 1977.
As I stated in my recent decision in~ v. Kanawha Coal Company, Docket
Nos. WEVA 80-40 ~ al. (June 24, 1980), I have great respec·t for Judge Moore,
an able and. articulate judge.

However, on this issue, I respectfully disagree

with his conclusions. J_/

'. ~

8/ The Commission granted the Secretary of Labor's petition for review of
the Olga case on August 7, 1979, and the Secretary of Labor's petition for
review of the Alabama By-Products case on March 5, 1980. However, neither
case has been decided.
9/ As stated by Commission Rule 73, 29 c.F.R. § 2700.73, "[a]n unreviewed
decision of a Judge is not a precedent binding upon the Commission." The.refore, although I accord considerable weight to a fellow judge's views, where
I disagree, I am not bound by his decision.

1954

It-is a fundamental rule of statutory construction that a statute should
not be interpreted-to ·defeat-its obvious intent.

In Wilson v. United States,

369 F.2d 198, 201 (D.C. Cir. 1966), the Court stated, "[t]he literal meaning
of a statute cannot be followed where it leads to a result contrary to legislative intention as revealed by the legislative history or other appropriate
sources."

In Perry v. Commerce Loan Company, 383 U.S. 392, 400 (1966), the

Supreme Court stated:

"Frequently, * * * even when the plain meaning did not

produce absurd results but merely an unreasonable one 'plainly at variance
with the policy of the legislation as a whole' this Court has followed that
purpose, rather than the literal words."

This cannon of statutory interpre-

tation has even been applied in criminal cases.

In United-states v. Braverman,

373 U.S. 405, 408 (1963), the Supreme Court stated:

"We have considered the

statute before us in light of the salutary rule that criminal statutes should
not by interpretation be expanded beyond their plain language.

But neither

can we interpret a statute so narrowly as to defeat its obvious intent."
Another canon of statutory interpretation is that remedial statutes are
to be liberally construed to advance the remedies intended. JJ}_/

It is clear

10/ See 3 Sands, Sutherland Statutory Construction § 60.01. In St. Marys
sewer-PYpe Company v. Director of the United States Bureau Qf Mines, 262 F.2d
378, 381 (3rd Cir. 1959), the Court made the following comments concerning
the 1952 Federal Coal Mine Safety Act:
The statute we are called upon to interpret is the outgrowth of a long history of major disasters in coal mines.
* * * It is so obvious as to be beyond dispute that in
construing safety or remedial legislation narrow or limited
construction is to be eschewed. Rather, in this field liberal
construction in light of the prime purpose of the legislation
is to be employed.
Similar statements were ma.de by the courts under the 1969 Act. See Reliable
Coal Co. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973); Phillips V-:-IBMA

1955

that an essential purpose of the 1969 Act and the.1977 Amendments Act was to
protect miners agairisi:.coal-wor~ers' pneumoconiosis, commonly known as "black
lung," which is caused by the inhalation of respirable cqal dust particles.
Thus, Section 2 of the 1969 Act, as amended, states that "the first priority
and concern of all in the coal or other mining industry must be the health
and safety of its most precious resource--the miner."

The balance of Section

2 also stresses the importance of protecting the health of miners.

Title IV,

dealing with black lung benefits, specifically provides benefits to miners
who are disabled by coal workers' pneumoconiosis.
Finally, Section 20l(b) of the 1969 Act stated:
Among other things, it is the purpose of this title to
provide, to the greatest extent possible, that the working
conditions in each underground coal mine are sufficiently
free of respirable dust concentrations in the mine atmosphere
to permit each miner the opportunity to work underground
during the period of his entire adult working life without
incurring any disability from pneumoconiosis or any other
occupation-related disease during or at the end of such
period.
Thus, it is clear that one of the essential purposes of this legislation
was to prevent miners from contracting pneumoconiosis as a result of inhaling
respirable coal dust, and to require mine operators to maintain an atmosphere
as free as possible from such dust.
fn. 10 (continued)
500 F.2d 772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975);
Freeman Coal Mining Company v. IBMA, 504 F.2d 741, 744 (7th Cir. 1974);
International Union, UMWA v. Kle}pe, 532 F.2d 1403, 1406 (D.C. Cir. 1976),
cert. denied, 429 U.S. 858 (1976 •

. 1956

Turning to the legislation in question, Section 202 of the Amendments
Act reads:
a. Section 202(e) of the Federal Coal Mine Health and
Safety Act of 1969 is amended to read as follows:
"(e) References to concentrations of respirable
dust in this title mean the average concentration of
respirable dust measured with a device approved by
the Secretary and the Secretary of Health, Education,
and Welfare."
b. Section 318(k) of the Federal Coal Mine Health and
Safety Act of 1969 is repealed.
As I read the amended Section 202(e), the word "approved" is ambiguous

and is subject to two possible definitions.

It can mean-; as contended by

Respondent, devices to be approved in the future.

Alternatively, it can mean

devices which have been approved as well as devices which may be approved in
the future.

Since either meaning is plausible, I interpret this language to

have the meaning which would effectuate the purposes of Congress and maintain
the continuity of a respirable dust program which Congress considered
essential.
Respondent argued that the word "Secretary," as used in Section 202(e),
means the Secretary of Labor because Section 102(b)(l) of the Amendments Act
amended Section 3(a) of the 1969 Act to read:

"For the purpose of this Act,

the term 'Secretary' means the Secretary of Labor or his delegate."

Prior to

amendment, "Secretary" meant "the Secretary of the Interior or his delegate."
Section 307 of the Amendments Act stated:
Except as otherwise provided, this Act and the amendments
made by this Act shall take effect 120 days after the date of

1957

enactment of this Act * * *· The amendment to the Federal
Coal Mine He.alt}J._an<LSafety Act of 1969 made by section 202 of
this Act shall be effective on the date of enactment.
Thus, although the amendments in Section 202 of the 1977 legislation
were made effective immediately, the change in definition of "Secretary"
from "Secretary of the Interior" to "Sec~etary of Labor," as well as the
balance of the Act, did not become effective until 120 days later.

When

Section 202(e) was amended, the "Secretary" was the Secretary of the
Interior and not the Secretary of Labor and, as indicated, the Secretary
of the Interior had approved the device involved in this case.

The fact

that the effective date of all other sections of the Act ~as delayed
120 days, while this section was made effective immediately, further convinces me that Congress intended that there be a valid and enforceable
respirable dust program upon enactment of the statute.
A further indication of Congress' intent to avoid the "lapse situation"
urged by Respondent is Section 30l(c)(2) of the Amendments Act.

That pro-

vision preserves all "orders, decisions, determinations, rules, regulations,
permits, contracts, certificates, licenses, and privileges" which were in
effect when the enforcement functions were transferred from the Department
of the Intertor to the Department of Labor.

I do not feel that this provi-

sion could have been drafted with any greater clarity, breadth, or decisiveness.

This savings clause preserved the approvals of dust devices which were

made under the 1969 Act until MSHA ruled otherwise.
Finally, I believe that in deleting the five-micron definition of respi. rable dust from the Act in 1977, Congress was simply rectifying an error which

1958

it had made when it passed the 1969 Act. On April 8, 1980, MSHA promulgated
final rules on the definition of respirable dust and the procedures for
sampling it in underground coal mines. See 45 Fed. Reg. 23990-24005 (1980).
While I do not believe that the new rules themselves have any relevance
to the citations at issue, the explanatory material which accompanied the
new rules sheds considerable light on the rise and fall of the five-micron
definition.
The new regulations define "respirable dust" as "dust collected with a
sampling device approved by the Secretary and the Secretary of Health, Education, and Welfare in accordance with Part 74 (Coal Min~ _!>yst Personal Sampler
Units) of this title."

They add that "Sampler device approvals issued by the

Secretary of the Interior and the Secretary of Health, Education, and Welfare
are continued in effect."

45 Fed. Reg. 24000-24001, 24004 (1980) (to be

codified in 30 C.F.R. § 70.2(n) and § 75.2(k)).

The definition of "respirable

dust" in the new regulations is thus consistent with Section 202(e) of the
Act as amended in 1977.

The size definition which previously appeared at

30 C.F.R. § 75.2(k) has been deleted.
In expiaining this change in the regulations, MSHA stated that (45 Fed.
Reg. 23994):
Commenters also suggested that the definition of
respirable dust should include a particle size limitation.
The final rule defines respirable dust as dust collected
wtih [sic] sampling device[s] approved by the Secretary and
the Secretary of Health, Education, and Welfare. This
definition is consistent with the definition of respirable
dust in section 202(e) of the Act. Approvals for devices

1959

issued by the Secretary of the Interior and the Secretary of
HEW under the Co-al Act-and Part 74 of 30 CFR are continued in
effect by virtue of the provisions of the Federal Mine Safety
and Health Amendments Act of 1977.
The previous definition of respirable dust prior to the
1977 Act was "only dust particulates 5 microns or less in size"
(30 CFR 70.2(i)). This definition was based on ~n incorrect
interpretation of the original definition of respirable dust
developed by the British Medical Research Council (BMRC).
According to the· BMRC 11 a selective size sampling device
· meeting these requirements would have a 50 percent sampling
efficiency for 5 micron spherical particles of unit density,
and an absolute cut-off for similar particles of size greater
than 7 .1 (micron) diameter." The MRE device was designed
according to the BMRC definition, and u~ed in the epidemiological studies upon which the 2.0 mg/m dust standard in the
1969 Coal Act was based.· [Citation omitted]
By prescribing the 5 micron diameter as the abs_o-lut~
cutoff, rather than the 50 percent efficiency diameter as
determined by the BMRC, the previous definition of respirable dust was rendered incompatible with the performance
of the MRE instrument or any other instrument for sampling
respirable dust. Consequently, the Interior Board of Mine
0 erations A eals determined that citations based u on
this definition were unenforceable.
Eastern Associated
Coal Corporation***).
To retain a definition of respirable dust based on a

5 micron particle size limitation would perpetuate these
problems. Congress recognized this potential and in the
1977 Act defined respirable dust in terms of approved sampling devices. This same concept is adopted in the final
rule***
[Emphasis added.]
This suggests that the five-micron definition was a mistake from the
day the 1969 Act was signed into law.

The BMRC research which the definition

was based upon did not prescribe an absolute five-micron cutoff.

Rather, it

called for defining respirable dust in terms of a device which had a 50 percent sampling efficiency for five-micron spherical particles, and an absolute
cutoff for similar particles 7.1 microns in size.

1960

This position .is s~_ppo__:t~~ by a review of the legislative history of
the 1969 Act.

During the consideration of that Act, Congress had a propos~d

definition of respirable dust before it which was identical to the BMRC definition.

On January 16, 1969, Senator Randolph introduced S. 355, which

called for dust sampling with the use of "a gravemetric [sic] sampling device
having the following characteristics for particles of unit density spheres
or its equivalent:

2 microns and less will pass 98 percent; 5 microns will

pass 50 percent; 7.1 microns will pass 0 percent." Section 30l(b).

The same

proposed definition appeared in Section 32(b) of S. 1094, introduced on
February 19, 1969 by Senator Williams.

Two other bills, S. 1300 (introduced

on March 4, 1969 by Senator Javits) and S. 1907 (introduced on April 22,
1969 by Senator Cook) did not define respirable dust in this manner, but
simply s.tated that dust was to be measured by an MRE instrument.
202(a)(2) of S. 1300 and Section 202(b) of s. 1907.

See Section

I do not think the defi-

nition in the first two bills was inconsistent with the definition in the
latter two.

As Petitioner's Exhibit 24 demonstrated, the sampling efficien-

cies set forth in s. 355 and S. 1094 represented precisely the efficiency
of the MRE device described in S. 1300 and S. 1907.
With this background in mind, it is easy to see why the-Interior Board
of Mine Operations Appeals was compelled to strike down the dust program
which had come into being under the 1969 Act.

The strict five-micron cutoff

which appeared in the 1969 Act was unattainable with the technology which an

MRE device or its equivalent represented. The MRE was only SO percent efficient
in screening out particles larger than five microns in size, and had an
absolute cutoff of 7.1 micron particles.

1961

When the 1977 Amendments Act cane before the Congress, the legislators
recognized the error made in the 1969 Act, and deleted the five-micron definition from the statute.

In my opinion,- their intention was to indicate their

approval of the MRE and other devices approved by the Secretaries, both before
and after the effective date of the new law.

Their intention was. ..!!£!, as

Respondent would have me believe, to scuttle the entire respirable dust
program until such time as the Secretary of Labor and the Secretary of Health,
Education, and Welfare had approved new devices for measuring respirable dust.
In its brief, Respondent extensively discussed the merits of the deleted
five-micron definition, and chastised the Secretary for
'~consider[ ing] as
- ---respirable dust whatever is captured by the personal sampler unit's filter."
Respondent's Brief at 45.

Upon passage of the 1977 Act, MSHA was given a

clear Congressional mandate to proceed with the respirable dust program with
all due dispatch, unhampered by a size-based definition which was not only
technologically impracticable, but held legally insufficient in Eastern
Associated Coal.

Respondent argued that "there is a rational basis supporting

its contention that respirable dust is that particulate which measures five
microns or less in size."

Respondent's Brief at 52.

It

is not my function

to determine whether there is a rational basis in fact for- such a conclusion.
As a matter of 1 aw, the five-micron standard no longer exists. Respondent
attempted to, in effect, reargue the Eastern Associated Coal case.

Such an

approach must fail because, as I have pointed out, the Congress has made
that decision a nullity • .!.!/
11/ Respondent also called attention to two actions taken by the Secretary
of Labor which, in Respondent's view, bolster its contention that respirable
dust is still defined as dust particulates five microns or less in size.

1962

The Congress has, therefore, defined respirable dust as that which is
collected by a device approved either by the Secretary of the Interior and
the Secretary of Health, Education, and Welfare before the effective date of
Section 202 as amended by the 1977 Act, or by the Secretary of Labor and
the Secretary of Health, Education, and Welfare thereafter. Accordingly, I
find that Respondent violated 30 C.F.R. § 70.lOO(b) as alleged with respect
to the 15 citations at issue.
In determining the amount of an appropriate penalty for these citations,
most of my evaluations of the criteria in Section llO(i) of the Act discussed
during my consideration of Citation No. 776637 apply.

Ho~ever-,

one point

which was raised at hearing and vigorously debated by the parties in their
briefs deserves further discussion.
Mr. Stritzel, one of Petitioner's witnesses, testified that Respondent
had the worst record of any company in MSHA's Benton subdistrict of compliance
with the respirable dust standards.

In its brief, Respondent questioned the

fn. 11 (continued)
The first of these is the Secretary's continued policy of screening certain
dust samples for "oversized particles," a practice which Petitioner characterized as "nothing more than an additional check." The second is the
Secretary's.continued use of the five-micron definition in his regulations
up until April 8, 1980, when the new rules discussed above were put into
effect. See 30 C.F.R. § 75.2(k) (1979). In my view, while both of these
actions indicated that the Secretary was still, to some extent, relying upon
the five-micron definition, neither made the Labor Department's respirable
dust program unenforceable. It is axiomatic that when the Congress amends
an enforcement provision, that enactment automatically supersedes any regulations or practices promulgated in reliance on the pre-existing provision.
Regulations have the force and effect of law only when they are not inconsistent with a statute. See General Services Administration v. Benson, 415
F.2d 878, 880 (9th Cir. 1969). Additionally, I note that 30 C.F.R. § 75.2(k)
is a safety standard. The corresponding health standard formerly appeared
at 30 C.F.R. § 70.2(i), and was repealed shortly after the enactment of the
1977 Amendments Act.

1963

statistics upon which Mr. -Stritzel relied.
-~

'

Respondent's analysis of the evi-

-- --

dence proved that Mr. $tritzel's figures may have been between 58 and 122 percent greater than the actual figures which reflect the numher of citations
and withdrawal orders issued to Respondent for respirable dust violations
during 1977 and 1978.

Therefore, I do not accept Mr. Stritzel's conclusion

concerning Old Ben's record of compliance with the dust standard. 12/

~:

Upon consideration of the criteria in Section llO(i) of the Act, I assess
a penalty of $100 for each violation of 30 C.F.R. § 70.lOO(b), for a total of
$1,500. QI
ORDER
Citation .No. 777024 is VACATED.

With respect to the remaining 16 cita-

tions involved in these cases, Respondent is ORDERED to pay $1,750 in penalties within 30 days of the date of this Order.

~. //. & .. .;Z..•
Edwin S. Bernstein
Administrative Law Judge

-

12/ Respondent also contended that the methods of mining which it employs at
its Benton mines (longwall and borer-type) produce more coal dust than other
methods. Respondent claimed that its "higher [dust] level!? are attributable
to the type.of mining practiced in the Old Ben mines rather than to some
villainous plot to frustrate the mine health standards concerning respirable
dust." While Petitioner's witness, Mr. Stritzel, apparently conceded that
these types of mining produce more dust than other types, I do not believe
it is necessary for me to consider whether the higher accumulations of dust
in Re~pondent's mines are the result of technological innovation or a
"villainous plot."
·
13/ The 15 citation numbers are 9940663, 773508, 9940684, 9940664, 9940688,
9940693, 9940694, 9940674, 9940690, 9940689, 9940678, 9940659, 9940706,
9940700, and 9940703.
·

1964

DistributiOn:

-- - -William C. Posternack and Miguel J. Carmona, Office of the Solicitor,
U.S. Department of Labor, 8th Floor, 230 South Dearborn Street,
Chicago, IL 60604 (Certified Mail)
'

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Robert J. Araujo, Esq., Old Ben Coal Company, 125 South Wacker Drive,
#2400, Chicago,- IL 60606 (Certified Mail)
John Arvai, Jr., UMWA, 310 South Pine Street, Zeigler, IL 62999
(Certified Mail)
Lester Young, UMWA, 508 N. Adams Street, West Frankfort, IL 62896
(Certified Mail)
Roger Young, UMWA, 214 South Park, West Frankfort, IL 62896
(Certified Mail)
-

1965

---

APPENDIX - PETITIONER'S EXHIBIT 24

.
c 80
41

u

z~

Q ': 60

1-z
<tO
a:-

1- !:::

~~ 40
w-

a.~

a: 20
o.

\

,,

).,

~\ '~ MRE device
\~

Personal Sampler

" .
\.\

\.

Pulmonary
deposition

. , ... _

' ' ............
\ ....

.

~,

0

...........

__ _

2
4
6
8
10
DIAMETER UNIT DENSITY, SPHERE, microns

1966

12

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. .COLFAX AVENUE
DENVERACQJ.ORADO 80204

" :> JUL 1980
~~~~~~~~~~~~~~~~~~~-

)

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

v.

·)
)

CIVIL PENALTY PROCEEDING

)
)

DOCKET NO. WEST 79-301-M
MSHA CASE NO. 05-02~05003

)
)
)
)
)

CLIMAX MOLYBDENUM COMPANY,
Respondent.

MINE:

CLIMAX OPEN PIT

~~~~~~~~~~~~~~~~~~~->
DECISION
APPEARANCES:
Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh,
Regional Solicitor, United States Department of Labor, Kansas City,
Missouri,
for Petitioner,
Richard w. Manning, Esq., Climax Molybdenum Company, Golden, Colorado
for the Respondent.
Before:

Judge John J. Morris

Petitioner, the Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges that respondent, Climax Molybdenum
Company, failed to immediately notify MSHA of an accident on mine property.
MSHA asserts Climax thereby violated two standards promulgated under
authority of the Federal Coal Mine Health and Safety Act of 1969 (amended
1977), 30 u.s.c. § 801 et seq.
STATEMENT OF THE CASE
Climax allegedly violated 30 C.F.R. 50.10 and 30 c.F.R. 50.12.

The

standards provide as follows:
Subpart B - Notification, Investigation, Preservation of Evidence

§ 50.10 Immediate Notification.
If an accident occurs, an operator shall immediately
contact the MSHA District or Subdistrict Office having
jurisdiction over its mine.
If an operator cannot
1967

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

§ 50.12 Preservation of Evidence.
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.
FINDINGS OF FACT
The evidence is essentially uncontroverted.

I find the following facts

to be credible.
1.

Climax employee Roger Persichini was injured on November 6, 1978

when a truck tire weighing approximately 7,000 pounds fell on him (Tr 15 39).
2.

Persichini suffered fractures of the left femur, the pelvis,_ and

the right hip (Tr 83 )·.
3.

An initial examination took place in the Climax infirmary.

It was

conducted by Dr. James Bane and Nurse Anderson (Tr 88, 98).
4.

The medical personnel in the infirmary were familiar with

Persichini's medical profile from previous examinations.

His history

identified him as a healthy white male (Tr 75 - 94).

In the infirmary,

5.

Persichini 's vital signs were stable and he was cooperative (Tr 74 6.
Colorado.

94).

The injured man was removed to St. Vincent's Hospital in Leadville,
Thereafter, he was transferred to St. Anthony's Hospital in

Denver, Colorado (Tr 87, 88).
7.

James Keith, the Climax safety director was advised by the Climax

nurse and physician that Persichini's condition was serious but not _life
threatening (Tr 48 - 74).

1968

8.

On November 7, 1978, Persichini, while in St. Anthony's

Hospital, developed a fat embolism.

A fat embolism, which can occur as a

result of a fracture of a large bone, normally does not develop until twelve
hours after the fracture.

Such a condition is not life threatening (Tr 88,

95 - 102).
9.

The fractures·, according to the Climax physician, were serious but

not life threatening (Tr 95 - 102).
10.

Climax's head nurse, Ann Anderson, continually monitored

Persichini's condition while he was hospitalized.

She terminated this

monitoring when she visited him in St. Vincent's Hospital on November 9,
1978 (Tr 74-94).
11.

Persichini returned to work on November 11, 1979 (R1).

12.

Climax reported the accident to MSHA on Form #7000-1 on November

10, 1978 (R1).
13.

Climax did not preserve the accident scene (Tr 73).
ISSUE

The primary issue is whether Climax violated the standard.

The

underlying fact issue is whether the injuries to Persichini had a
"reasonable potential to cause death."
DISCUSSION
Petitioner, in his post trial brief, initially contends that the injury
sustained by Persichini constituted an accident as defined by 30 c.F.R.
50.2(h)(2).

Secondly, petitioner asserts that the Climax safety director

did not rely on the medical opinions of the company nurses and physicians.
Thirdly, MSHA argues that the accident scene must be preserved when there is
a serious injury until mine management has determined whether the accident

1969

is reportable under 30 C.F.R. 50.10.

Finally, MSHA declares that an

operator must notify MSHA "whenever the injury is serious and. there exists
any question as to whether it is life threatening."

In short, MSHA says the

operator should err on the side of immediate notification.
I reject the above arguments.

Concerning the first contention, it

appears that 30 c.F.R~ 50.2(h)(2) defines as accident as follows:
(h) "Accident" means (2) An injury to an individual
at a mine which has a reasonable potential to cause
death.
Simply stated, MSHA did not establish a factual situation within the
above definition of an accident.
I agree with MSHA that remedial legislation should be broadly
construed; however, there must first be operative facts to establish the
applicability of the regulation.
MSHA's reliance on Secretary v. Hecla Mining Company 1 MSHC 2270 is
misplaced.

In that case Administrative Law Judge George A. Koutras ruled,

as I do, that no reasonable potential for death was shown in the case.

In

Hecla, the victim was taken to the hospital and moved to intensive care.
MSHA misconstrues it's regulation.

Immediate reporting is not required

if the accident is serious and there exists "any question" as to whether it
is threatening.
As a general rule the strained construction of a standard relating to
safety and health should be avoided.

Cf Diamond Roofing Company v. OSHRC

528 .F 2d 645 (5th Cir., 1976), Dunlop v. Ashworth 538 F 2d 562 (4th Cir.,
1976); Brenner v. OSHRC (Ron M. Fregen, Inc.) 513 F 2d 713 (8th Cir.,
1975); Usery v. Kennecott Copper Corp. 577 F 2d 1113 (10th Cir., 1977).

1970

MSHA's second contention that the Climax safety director did not
rely on the opinions of its medical staff ignores the evidence to the
contrary (See Fact 7 and 9).
MSHA's third argument that an operator must preserve the site until
management has determined whether the accident is immediately reportable
misconstrues the regulations.

An operator may be acting at its peril in

·not preserving the site if it develops that the injury does have a
reasonable potential for death.

However, the necessity to preserve does not

occur until the reasonable potential for death has arisen.
MSHA's final contention that notification is required "whenever there
exists any question as to whether it is life threatening" lacks merit.
MSHA desires a regulation in line with the above requirements,

~hen

If

it

should redraft one under its rule making procedures.
At trial, MSHA argued that immediate reporting was required due to a
combination of circumstances.

Namely, the injuries were serious, a fat

embolism developed, intensive care was required, and Persichini was moved to
three different treatment facilities.
In considering the above elements, I rule as a matter of law, that a
"serious injury" is necessarily something less than one that has "a
reasonable potential for death."

Climax's evidence shows that a fat

embolism is not "life threatening."

Further~

intensive care is a facility

where more specialized nursing care and observation are available.

Finally,

the evidence shows that the transfer to three medical facilities 1 was due
to the areas of specialization of the particular facilities.

l/

Climax infirmary, St. Vincent Hospital in Leadvill~, Colorado;
then St. Anthony's Hospital in Denver, Colorado.

1971

CONCLUSIONS OF IAW
1.

MSHA fai-led--to prove that worker Persichini sustained an injury

that had a reasonable potential for death and accordingly Climax did not
violate 30 c.F.R. so.10.
2.

Persichini sustained an occupational injury as defined by 30 C.F.R.

.
2
50.2(e).

3.

If no immediate notification was required by 30 C.F.R. 50.10, then

no violation of 30 C.F.R. 50.12 can occur.
Based on the foregoing findings of fact and conclusions of law, I
enter the following:
ORDER
Citations 333661 and 333662 and all proposed penalties therefor are
vacated.

Law Judge
Distribution:
Robert s. Bass, Esq., Eliehue c. Brunson, Esq., Office of the Solicitor
United States Department of Labor, 911 Walnut Street, Room 2106,
Kansas City, Missouri g4106
Richard w. Manning, Esq., Attorney for Climax Molybdenum Company, a
Division of AMAX, Inc., 13949 West Colfax Avenue, Golden, Colorado
80401

~./

This definition provides as follows: (e) "Occupatiom/injury"
means any injury to a miner which occurs at a mine for which
medical treatment is administered, or which results in death or
loss of cons.ciousness, inability to perform all job duties on
any day after an injury, temporary assignment to other duties,
or transfer to another joo.

1972

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
--- ·oFFlCE"-OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520" LEESBURG PIKE
FALLS ~URCH, VIRGINIA 22041

l!03J 756-6220

2 8 JUL 1990

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

Civil Penalty Proceeding
Docket No •. WEVA 80-323

A.c. No. 46-00889-03012R

Petitioner

v.
Juanita No. 1 Mine
COAL RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
s. J. Angotti, Esq., Morgantown, West 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~~., the "Act"). On June 10, 1980, at a hearing
held in Morgantown, West Virginia, Petitioner proposed a settlement agreement conditioned on the payment by Coal Resources, Inc., of a penalty of
$6,000. I have considered the evidence and stipulations submitted and conclude that the proposal is appropriate when considering the criteria set
forth in section llO(i) of the Act.
The citation at bar charges a serious violation of section 103(a) of
the Act in that an MSHA inspector was forcibly denied entry to conduct an
authorized inspection. On September 11, 1979, Inspector Albert Borda
arrived at the operator's Juanita No. 1 Mine in Everettville, West Virginia,
to conduct a· regular inspection but before he could do so he was threatened,
physically attacked and seriously injured by John Laurita a representative
and official of the operator.
At hearing, the statement of Inspector Borda was submitted as undisputed
evidence. The operator waived its right to require the inspector to testify
under oath and waived its right to cross-examination. · The statement reads
as follows: ];./
1/

Transcript at 7.

1973

I was assigned to a regular inspection at the Juanita
No •. l Mi~e, Coal Resources, Inc., Everettville, Monongalia
County, We·st·-Vi'rglnl.a, MSHA ID. No.46-00889, by Steve Kuretza.
I left Fairmont Field Office at 7:10 a.m. and drove to the
mine. I arrived at the mine at 7:45 a.m.. I saw a highlift
operator putting coal in a coal truck. Everything looked
normal. I proceeded to the mine office and was met by Pat
Rundle. I told him I was there to start a regular inspection of the mine. He mentioned an OSM -- that's Office of
Surface Mining ~ man was there the day before. Pat Rundle,
Mine Operator, said that an OSM man said they needed more
gravel on the roadways, drainage was coming out of the mine,
they. could be fined $25,000, and all the agencies of the
··
government is [sic] killing them. I proceeded to the office
and bathhouse with my clothes and equipment, sat [sic] them
on the bench and was getting ready to change clothes. The
phone rang and Pat answered it. He talked approximately one
minute. Pat said that John Laurita wanted to talk to me.
He told me I had fined him $750, you fucking son-of-a-bitch.
He told me not to go underground until he got there. He
mentioned a trailing cable fine again $750. I. told him I don't
set fines; they have an assessment office for that. He said,
you son-of-a-bitch I'll be right over. I told Pat Rundle we
weren't the only cause of all these problems; Reclamation and
OSM have been there too. Pat said the Government is running
the coal business trying to do away with the small 'operators.
We would be better off if this country was Communist. This
conversation was the general tone until John got there. John
Laurita arrived at the mine in a four-wheel jeep truck, blue
and white. He parked on the other side of the tracks across
from the mine office. He was walking across toward me. I was
sitting on a bench outside. He asked me what I was looking
at, you son-of-a-bitch. I told him I looked at anything that
moved it attracted my attention. He said I ought to kill you,
you son-of-a-bitch for fining me that $750 for that cable.
He said I don't even want you on my property. He said I hope
I never see you on this property again; I don't care if you
never come back. John motioned for me to go in th~_ building.
He closed the door behind us. He said something about a
woman in Morgantown in the funeral home, his sister-in-law
who had five kids. Then he said I ought to split your head
wide open with an ax. I bent over to pick up my clothes
from the bench. John Laurita pushed me and I lost my
balance and fell on the floor. After falling he grabbed my
shirt and tore two buttons and tore my T-shirt and placed
scratches on my face and chest. I reached out to stop him
with my left arm. · He continued to keep me on the floor.
John Laurita told Pat Rundle to find him an ax. Pat Rundle
was trying to break it up and get .John Laurita away from
me. Pat Rundle more or less forced him away from me

1974

allowing me to get up. John Laurita followed me and he
went -to the left and I wen~ to the right toward.my government
car. I drov.e. tq:warcL.his jeep to leave. He was blocking the
roadway and since I couldn't get through I turned left and
crossed ove~ the mainline track with my government car on
to the other roadway that allows supplies to be brought in
on that side. As I proceeded away from the mine John Laurita
was standing on the same roadway I was leaving on. As I was
leaving the mine site John Laurita picked up part of a fishplate and acted as if he was going to throw it toward the
car. He hesitated and did not throw it. I left the mine
and returned to the Fairmont Field Office.
Dr. Shen K. Wang, M.D., of the orthopedic clinic in Fairmont,
West Virginia, examined Inspector Borda later the same day. According to
Doctor Wang, Borda suffered four fractured ribs as well as multiple abrasions on the left side of the face, chin, and chest. !:../
Based on this undisputed evidence it is clear that the attack upon
Inspector Borda was not the result of mere negligence but was intentional
and malicious and therefore represents the highest degree of culpability.
Serious injuries were not only probable but were intended and did in fact
result from the incident. The penalty of $6,000 here ordered against Coal
Resources is a severe but appropriate sanction.
I have also noted in accepting this penalty in settlement that the
operator produces about 100 tons of coal a day, has a moderate history of
violations (and no violations of a similar nature) and has not denied entry
to or threatened MSHA inspectors since this incident. I do observe however
that MSHA now sends inspectors to the Coal Resources facility in pairs raising some question as to whether all parties are convinced that ahatement is
permanent.
WHEREFORE, the motion for approval of settlement is GRANTED, and it
is ORDERED that Respondent pay the agreed penalt within 30 days of this
order.

Distribution:
Edward H. Fitch, Esq., Office of the
Labor, 4015 Wilson

.s. Department of
(Certified Mail)

s. J. Angotti, Esq., 212 High Street, Morgantown, WV 26505
(Certified Mail)
]:/

Transcript at 10.

1975

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

2 9 JUL 1990
SECRETARY OF LABOR, HINE SAFETY AND
HEALTH ADMINISTRATION {MSHA),
CIVIL PENALTY PROCEEDING
Petitioner,
DOCKET NO. WEST 79-196-M
A/0 NO. 02-00144-05004
Mine:
Sierrita Mine

v.
DUVAL CORPORATION,
Respondent.

DECISION
Appearances:
Mildred L. Wheeler, Esq., Office of the Regional Solicitor,
United States Department of Labor, 450 Golden Gate Avenue,
Box 36017, San Francisco, California 94102
for the Petitioner,
Lina s. Rodriguez, Esq., Bilby, Shoenhair, Warnock & Dolph,
P.C., 2 East Congress Street, Tucson, Arizona 85702
for the Respondent.
Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

This case, .heard under the provisions of the Federal Mine Safety and
Health Review Act of 1977, 30 U.S.C. § 801 et~·' arose-out of inspections
conducted at Respondent's mine in Sahuarita, Arizona on November 29, 1978,
and March 20 and 21, 1979.

As a result of those inspections, five citations

were issued, of which only three were actually tried, since Respondent
admitted at the hearing the violations alleged in Citations 378683 and
378684 {'l'r. 9).

_!/

A $130.00 penalty was initially proposed for each of these citations.
Since Respondent did not contest the appropriateness of these penalties,
they stand as final assessments.

1976

Petitioner seeks an order assessing civil penalties for
Respondent's alleged violat1ons of 30 CFR § 55.12-13, 2 30 CFR §55.14-1 3
and 30 CFR §55.14-45. 4
Citation number 378682 charges that Respondent violated 30 CFR §55.12-13
by using a permanently spliced cable which lacked a bonded outer jacket.
Respondent does not dispute Petitioner's allegation that the outer
jacket was loose.

Instead, it contends that the loose condition of the

jacket presented no danger because the five cables bound by the jacket were
individually wrapped and sealed; furthermore,

Respondent argues, the cable

was located in an isolated area.
Citation number 378685 charges that Respondent

vi()~_ated ·30

CFR

§55.14-1 by failing to adequately guard a pinch point between the belt
drive and the pulley on a back-up water pump.

Respondent contends that the

standard is inapplicable because the pump was infrequently used and because
the pinch point, due to the machine's construction and surroundings, could
not be contacted except intentionally.

~/

Mandatory. Permanent splices and repairs made in power cables,
including the ground conductor where provided, shall be:
(a)
Mechanically strong with electrical conductivity as near as possible to
that of the original; (b) Insulated to a de~ree at least equal to that
of the original and sealed to exclude moisture; and (c} Provided with
danger protec~ion as near as possible to that of the original,
including good bonding to the outer jacket.

3/

Mandatory. Gearst 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.

!/

Mandatory.

Welding operations shall be shielded and well ventilated.

1977

Citation number 377036 charges that Respondent violated 30 CFR
§55.14-45 because ofie· of Tts employees was welding on the teeth of a shovel
bucket without using a curtain to protect other persons from being harmed by
the light flashes.

Respondent contends that the welder was operating from

inside the shovel bucket, with his back to the open end, and thus provided
adequate shielding •. Furthermore, Respondent argues, there was no danger
presented regardless of the adequacy of the shielding because the sun's
brightness diffused the welding flash and no one was close enough to be
harmed.
ISSUES
1.

With regard to Citation Number 378682, the is~ue is whether the

outer jacket of the permanently spliced cable was well bonded.
2.

With regard to Citation Number 378685, the issue is whether the

pinch point between the belt drive and the pulley on the back-up pump was
.adequately guarded.
3.

With regard to Citation Number 377036, the issue is whether the

welding operation at Respondent's shovel bucket was shielded.
FINDINGS OF FACT AND DISCUSSION
Citation 378682
1.

A trailing cable on one of Respondent's shovels was permanently

spliced (Tr. 46).
2,

The outer jacket of the cable was loose and the splice connection

was exposed (Tr. 46 - 48, 120, 126).
Violation:
This citation should be affirmed.
§55~12-13

The mandatory standard at 30 CFR

requires that all permanently spliced power cables have well

1978

bonded outer jackets.

The undisputed evidence is that the power cable

in question was permanen:tlx_ ~l>liced and had a loose outer jacket (see Tr.
120, 126).

A violation of the standard was therefore shown.

Respondent's safety supervisor suggested that the jacket served no
safety purpose because each wire within the cable was individually wrapped
(Tr. 114 - 118).

The same witness, however, admitted that one of the

purposes served by the outer jacket is to prevent moisture from reaching the
wires (Tr. 132 - 133).
Respondent also argues that its ground-fault system would automatically
de-energize. the cable in the event of a short circuit or upon contact with
water, a vehicle or a piece of machinery (see Tr. 120-122).

Assuming the

system to be faultless, it does not relieve Respondent of its duty, under
this standard, to make sure that its power cabl€s are well bonded.
Furthermore, Respondent's Safety Supervisor conceded that the loss of the
outer jacket coupled with another safety defect could present a "safety
problem" (Tr. 127 - 128), characterizing the potential for an electrical
accident even with the trip devices as "not impossible, but improbable" (Tr.
129).
Penalty:
The parties stipulated to the following:

Respondent

~~

a large

operator 5 and had received 33 citations within the two years preceding
the inspection which gave rise to this case. 6

~

The parties stipulated that Duval Corporation operates at 4,781,356
manhours per year, and that its Sierrita Mine, in Sahuarita, Arizona,
operates at 1,379,444 manhours per year (Tr. 6). According to the
tables found at 30 CFR §100.3(b), these figures indi.cate that the mine
and the controlling company are "large".

~/

Using the table at 30 CFR §100.3(c), these figures indicate a relatively
favorable prior history.

1979

.Respondent was negligent in that it failed to exercise reasonable
care to prevent -the·-vioration.
The gravity of the violation was low.

Although the thorough wrapping

of each cable and Respondent's ground-fault system does not vitiate the
violation, they are relevant to a determination of the danger posed by the
violation.

These precautions substantially reduced the possibility of

harm.
Respondent demonstrated good faith by installing a new, watertight
cable sleeve (Tr. 48).
Giving due consideration to the factors discussed above, I conclude
that a reasonable and appropriate penalty is $50. 00 •.
Citation 378685
3.

Respondent has a back-up water pump which is used only when the

automatic pump breaks down (Tr. 58, 137).
4.

On the back-up punip there is a pinch point created by the belt

drive and the pulley (Tr. 54).
5.

The pump is located in an isolated area and is surrounded by a

walkway and a railing (Tr. 143, 136, 58).
6.

The machine itself guards the pulley (Tr. 139).

A wire cover

extends over the fan belt and a brace bar extends-diagonally from the top to
the bottom of the machine (Tr. 138) •
.This citation should be vacated.

The pinch point on Respondent's

back-up water pump was not guarded with equipment specifically designed for
that purpose.
however.

It was guarded by the location and design of the pump,

The machine was located in an isolated area and was surrounded by

a walkway which, in turn, was surrounded by a railing (Tr. 143, 136, 58; See
Exhibit ·R-U).

A wire cover extended over the fan belt and a brace bar

extended diagonally from the top to the bottom of the machine (Tr. 138; see

1980

Exhibits R-S and R-T and Tr. 144-145.) If a worker fell toward the
pump, he would hit. tlie- -~r~s~:.bar (Tr. 143).
There was no reason to attend the machine except to turn it on and off.
When starting or stopping the pump, a worker stands on a walkway beside the
engine; to reach the pinch point, he would have to purposely extend his arm
toward the engine (Tr. 143).

There is no need to approach-the pinch.point

except to replace the belt or to repair the alternator, in which case the
machine would first be shut down (Tr. 147).
For these reasons I find that the guarding requirement imposed by 30
CFR §55.14-1 was met.
Citation 377036
7.

At Respondent's mine in Sahuarita, Arizona, on November 29, 1978, a

worker was welding on the wear plates of a shovel bucket, used to pick up
ore and load it into trucks (Tr. 12 - 13; 78 - 79).
8.

Although the welding operation was not shielded by a curtain, the

welder was inside the bucket, surrounded on all but one side by the bucket
walls; and the welder himself was positioned at the open end, facing the
bucket's interior (Tr. 13; 80 - 81).
This citation should be vacated.
states:

The standard at 30 CFR §55.14-45

"Welding operations be shielded and well ventilated."

does not specify how they must be shielded.

The standard

In this case, the welding

operation was shielded on three sides by the shovel bucket and on the fourth
side by the welder himself.

The standard was therefore met.
CONCLUSIONS OF LAW

1.

This Commission has jurisdiction over the subject matter and

parties to these proceedings.

1981

2.

Responde·nt violated the regulations as alleged in Citations

378682, 378683 and 3_]86~·~

3.

Respondent did not violate the regulations as alleged in Citations

378685 and 377036.

ORDER
Citations 378685 and 377036 are vacated.

Citations 378682, 378683 and

378684 are affirmed, and penalties of $50.00, $130.00 a-nd $130.00

respectively, are assessed therefor.
It is further ordered that Respondent pay $310.00 within 30 days of
this decision.

Judge
Distribution:
Mildred L. Wheeler, Esq., Office of the Regional Solicitor, United
States Department of Labor, 450 Golden Gate Avenue, Box 36017,
San Francisco, California 94102
Lina s. Rodriguez, Esq., Bilby, Shoenhair, Warnock & Dolph, P.
2 East Congress Street, Tucson, Arizona 85702

1982

c.,

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
- _, OFFiCE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR 52QJ LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

3 0 JUL 1980

ISLAND CREEK COAL COMPANY,
Contestant
v.

Contest of Citations
Docket No. KENT 79-216-R
Citation No. 712200; 6-15-79

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

Big Creek No. 2 Mine
Respondent

--

Docket No. WEVA J-9-183-R
Citation No. ~35499; 5-7-79
Docket No. ~VA 79-184-R
Citation No. 635500; 5-7-79
Birch No. 2-A Mine
Civil Penalty Proceeding

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

Docket No. WEVA 80-72
A.c. No. 46-01459-03053

Petitioner

v.
ISLAND CREEK COAL COMPANY,
Respondent

...

Birch No. 2-A Mine

SUMMARY DECISION
These consolidated cases involve three citations charging violations of
section 103(f) of the Federal Mine Safety and Health Act of 1977 (the Act).
Section 103(f) 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.

1983

In Kentland-Elkhorn Coal Corp., 1 FMSHRC 1833 (November 30, 1979),
appeal pending No •. 79-2536 (D.C. Cir., December 21, 1979), the Federal
Mine Safety and Health~evrew-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 Co., 1 FMSHRC 1796 (November 21, 1979), appeal
pending No. 79-2537 (D.C. Cir., December 21, 1979)~ In Helen Mining Co., the
Commission held that a miner was not entitled under section 103(f),to walkaround pay for spot inspections pursuant to section 103(i) of the Act and
noted that compensation was due only for a miner's accompaniment of a
Federal inspector during a section 103(a) "regular" inspection. The Commission concluded therein that "regular" inspections were those described
in the third sentence of section 103(a) of the Act, .!•!:;•, the four required
annual inspections of underground mines and the two required annual inspections of surface mines.
The parties in these cases have reached factual stipulations that the
inspections giving rise to the citations at bar were all spot inspections,
the type of inspections classified by the Commission as "nonregular" inspections in the Kentland-Elkhorn and Helen Mining decisions. There is therefore
no issue as to any material fact. Under the circumstances, I find as a
matter of law that Island Creek did not violate section 103(f) of the Act as
charged in the citations at bar. 29 C.F.R. § 2700.64(b).
Accordingly, the motions for summary decision filed in these cases are
GRANTED, and Citation Nos. 635499, 635500 and 712200 are VACATED. The civil
penalty proceeding, Docket No. WEVA 80-72, is DISMISSED. 1/
In connection with these cases Island Creek also seeks damages against
MSHA in amounts equal to the wages it paid its employees as a result of the
citations issued in these cases. Island Creek claims that it paid these
wages to the miners representatives against its will, under protest and as a
direct result of MSHA's erroneous interpretation of the Act. Island Creek
requests that the damages be awarded as a setoff and credit against any
future civil penalties that might properly be assessed by MSHA against it in
other administrative proceedings before the Commission. It cites no authority in support of its proposition. It is clearly beyond the scope of my
authority to grant any such remedy. Island Creek's remedy, if any, lies in
an independent action against the employees who may have been erroneously
overpaid. Under the circumstances Island Creek's claims for damages are
DENIED.

'];/ Island Creek's motions to dissolve previous
are of course granted. See Secretary v. ~T~h~e:......::H~e~l;.J.:;;....:.:=.;;:=.;;:a..~~~;;if-,
778 (March 21, 1980).

1984

Distribution:
___ , - -

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor., U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) ·
William K. Bodell II, Esq., Island Creek Coal Company, P.O. Box 11430,
Lexington, KY 40575 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900-15th Street,
NW., Washington, DC 20005

1985

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

(703) "756-623()

3 1 JUL 1980
ITMANN COAL COMPANY,

Application for Review
Applicant
Docket No. WEVA 80-9-R

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
and
LOCAL UNION NO. 9690, DISTRICT 29,
UNITED MINE WORKERS OF AMERICA,
Complainant

Complaint for Compensation
Docket No. WEVA 80-129-C

v.

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

Civil Penalty Proceeding
Docket No. WEVA 80-211
A.C. No. 46-01576-03038H

Petitioner

v.
Itmann No. 3B Mine
ITMANN COAL COMPANY,
Respondent
DECISION
Appearances:

Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Itmann Coal Company;
James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor·, Philadelphia, Pennsylvania, for. Secretary of Labor,
Mine Safety and Health Administration;
Mary Lu Jordan, Esq., Washington, D.C., for United Mine Workers
of America.

Before:

Judge James A. Laurenson

1986

JURISDICTION AND PROCEDURAL HISTORY

On September 13, 1979, an inspector employed by the Mine Safety and
Health Administration (hereinafter MSHA) issued an order of withdrawal for
all areas of Mine No. 3B of the Itmann Coal Company (hereinafter Itmann).
The order of withdrawal was based upon the inspector's finding of an imminent
danger pursuant to section 107(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 817(a) (hereinafter the Act).
violation of 30 C.F.R. § 75.329.

The order also alleged a

On September 28, 1979, Itmann filed an

application for review of that order.

On December 6, 1979, Local Union

No. 9690, District 29, United Mine Workers of America (hereinafter UMWA)
filed a complaint for compensation under section 111 of the Act, 30 u.s.c.
§

On February 26, 1980, MSHA filed a proposal for assessment of civil

821.

penalty.

The three cases were consolidated pursuant to Procedural Rule 12 of

the Federal Mine Safety and Health Review Commission, 29 C.F.R. § 2700.12.
A hearing was held in Charleston, West Virginia, on April 14, 15, and 16,
1980.

Carl Worthington testified on behalf of MSHA.

and Arnold Rogers testified on behalf of the UMWA.

Bernard B. Shrewsberry
Frank Beard, John

Zachwieja, Harry Farmer, and Arvil R. Bailey testified on behalf of Itmann.
All three parties filed posthearing briefs.
ISSUES
1.

Whether the order of withdrawal due to imminent danger was properly

issued.

1987

2.

Whether Itmann violated the Act or regulations as charged by MSHA
---· - -

and, if so, the amount of the civil penalty which should be assessed.
3.

Whether employees at the mine were idled by the order in question

and, if so, whether they are entitled to receive compensation and, if so, the
amount of compensation which they are entitled to receive.

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 imminerttd~nger
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
eptering, 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."
Section 111 of the Act, 30 u.s.c. § 821, provides as follows:
If a coal or other mine or area of such 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

1988

issued who. are idled by such order shall be entitled, regardless of the-·result or-any review of such order' to full compensation by the operator at their regular rates of pay for
the period they are idled, but for not more than the balance
of such shift. If such order is not terminated prior to the
next working shift, all miners on that shift who are idled by
such order shall be entitled to full compensation by the operator at their regular rates of pay for the period they are
idled, but for not more than four hours of such shift. If a
coal or other mine or area of such mine is closed by an order
issued under section 104 or section 107 of this title for a
failure of the operator to comply with any mandatory health
or safety standards, all miners who are idled due to such
order shall be fully compensated after all interested parties
are given an opportunity for a public hearing, which shall
be expedited in such cases, and after such order is final, by
the operator for lost time at their regular rates of pay for
such time as the miners are idled by such closing, or for one
week, whichever is the lesser. Whenever an operator violates
or fails or refuses to comply with any order is~ued-urider section 103, section 104, or section 107 of this Act, all miners
employed at the affected mine who would have been withdrawn
from, or prevented from entering, such mine or area thereof as
a result of such order shall be entitled to full compensation
by the operator at their regular rates of pay, in addition to
pay received for work performed after such order was issued,
for the period beginning when such order was issued and ending
when such order is complied with, vacated, or terminated. The
Commission shall have authority to order compensation due under
this section upon the filing of a complaint by a miner or his
representative and after opportunity for hearing subject to
section 554 of title 5, United States Code.
Section llO(i) of the Act,_ 30 u.s.c. § 820(i), provides in pertinent
part as follows:
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.

1.989.

Section 303(z)(2) of the Act, 30 u.s.c. § 863(z)(2) and 30 C.F.R.
§

75.329 provide in pertinent part as follows:
[A]ll areas from which pillars have been wholly or partially
extracted and abandoned areas, as determined by the Secretary
or his authorized representative, shall be ventilated by
bleeder entries or by bleeder systems or equivalent means, or
be sealed, as determined by the Secretary or his authorized
representative. When ventilation of such areas is required,
· such ventilation shall be maintained so as continuously to
dilute, render harmless, and carry away methane and other
explosive gases within such areas and to protect the active
workings of such mine from the hazards of such methane and
other explosive gases. Air coursed through underground areas
from which pillars have been wholly or partially extracted
which enters another split of air shall not contain more than
2.0 volume per centum of methane, when tested at the point it
enters such other split. When sealing is requ!red,-- such .
seals shall be made in an approved manner so as to isolate
with with explosion-proof bulkheads such areas from the active
workings of the mine.
STIPULATIONS

.

The parties stipulated the following:
1. Itmann is the owner and operator of the Itmann No. 3
Mine located in Wyoming County, West Virginia.
2. Itmann and the Itmann No. 3 Mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The Administrative Law Judge has jurisdiction over
all three proceedings.
4. The inspector who issued the subject order and
termination was a duly authorized representative of the
Secretary of Labor.
5. A true and correct copy of the subject order and
termination were properly served upon the operator in
accordance With section 107(d) of the 1977 Act.

1990

6. Co.pies of the subject order and termination are
authentic and ntay·· be admitted into evidence for the purpose
of establishing their issuance and not for the truthfulness
or relevancy of any statements asserted therein.
7 •. The appropriateness of the penalty, if any, to the
size of the coal operator's business should be determined
based upon the fact that in 1979, the Itmann No. 3 Mine produced an annual tonnage of 535,357 (No. 3A equals 388,481
and No. 3B equals 146,876) and the controlling company,
Itmann Coal Company, had an annual tonnage of 1,627,963.
8. The history of previous violations should be determined based on the fact that the total number of assessed
violations in the preceding 24 months is 382 and the total
number of inspection days in the preceding 24 months is 832.
9. The alleged violation was abated in a timely
manner and the operator demonstrated good faith in attaining
abatement.
10. The assessment of a civil penalty in these proceedings will not affect the operator's ability to continue in
business.
11. That by a certain closure order dated October 2,
1969, issued in accordance with section 203(a)(l) of the
Federal Coal Mine Safety Act, as amended, and as modified
on October 9, 1969, the area described on the face of said
order and modification was closed (see operator's Exhibit
No. 2). Approximately 10 years later on September 13, 1979,
Imminent Danger Order No. 0640580 was issued pursuant to
section 107(a) of the 1977 Act as a result of an inspection
in part of the same area which was still under the abovementioned closure order.
12. The miners on the day shift of September 13, 1979,
were paid .by Itmann for the balance of their shift arter the
order was issued and the miners scheduled to work the afternoon shift on S~ptember 13, 1979, were paid for 4 hours of
that shift.
13. The maximum number of days' wages to which the
miners who were idled by this order would be entitled is
5 days' wages.

1991

SUMMARY OF THE EVIDENCE
On October 2, 1969, a federal mine inspector issued an order of withdrawal due to imminent danger for the entire Sugar Run section of Itmann
No. 3 Mine.

The order was based on a finding of "loose coal, coaLdust, and

float dust * * *·"

One week later, following a cleanup and rock dusting of

part of the affected area, the order was revised to reopen part of the
affected area "to a point 100 feet inby the junction of the West Mains and
that the Closure Orders remain in effect in all areas inby this point."
Rather than attempting to abate the conditions that led to the closure orders
for the part of the mine that remained closed, Itmann cho§e to abandon that
part of the mine.

Under 30 C.F.R. § 75.329, Itmann had the choice of seal-

ing the abandoned area or ventilating the area by bleeder entries or bleeder
systems.

Itmann chose to ventilate the abandoned part of the mine.

A

ventilation plan for that purpose was approved by MSHA.
In 1977, MSHA officials met with Itmann management to discuss the Government's concern about the accumulation of explosive methane gas in the
abandoned areas of Itmann's No. 3B Mine.

The Itmann No. 3B Mine is classi-

fied by MSHA as very gassy because it liberates 1,700,000 cubic feet of
methane in 24 hours.

Following that meeting, MSHA inspectors traveled the

bleeder system in the abandoned areas of this mine in 1978 and found that
the bleeder system was working properly.

No violations were found in 1978.

According to Frank Beard, Vice President of Operations ·at Itmann, one more
inspection of the abandoned area prior to the time of the issuance of the
instant order was performed by an MSHA inspecto_r.

1992

On September 13, 1979, Inspector Carl Worthington was assigned to conduct a ventilation saturation inspection of the abandoned areas of the mine.
He initially checked the methane cont~nt of the air coming from the abandoned
area at the point where it entered another split of air.
methane at this place.

He found .63 percent

He then entered the abandoned area and continued to

test for methane and air velocity.

At a point approximately 1,500 feet inby

the point where the two splits of air meet, he found 1.11 percent methane and
840 cubic feet of air per minute.

At a point approximately 2,200 feet inby

the two splits of air, he found 1.78 percent methane and very slight movement
of air.

He continued inby until he reached a room approximately one-half mile

inby the first point.

At that place, he found methane as recorded on the

digital methanometer at 9 percent and as subsequently analyzed in bottle samples between 9.0 and 10.21 percent and no movement of the air as demonstrated
by the release of a chemical smoke cloud.

Thereupon, he ordered the safety

lamp ~xtinguished and informed Itmann that it had a section 107(a) order of
withdrawal.
Inspector Worthington testified that he issued the order of withdrawal
for the following reasons:

(1) methane in the range of 9 percent is explo-

sive; (2) the methane could be ignited by a spark from a roof fall and there
was a high potential for roof falls in this area; (3) the volume of methane
in the explosive range filled the room from floor to roof; and (4) an explosion in the abandoned area could disrupt the ventilation and contaminate the
active working sections of this mine with poisonous gas.

He further testi-

fied that the accwnulation of explosive methane was caused by stoppings which

1993

were crushed and leaking.

Hence, the air coursed through the bleeder system

was "short circuited" before it entered the gob area.
With regard to the probability of an ignition of the methane which would
affect the miners working in the active West Main workings, Inspector
Worthington expressed his opinion that such an occurrence was "very possible"
and "not remote."

On

cross-examination by Itmann's counsel, he testified

that he would place the probability of such an occurrence at that time in the
50-50 range.

He feared a probable disaster in which poisonous gases would be

coursed into the active workings of the mine resulting in serious injury or
death to the 60 miners working there.

On

cross-examinatign-,-the inspector
- ----

testified concerning his knowledge of approximately 10 incidents in his district where methane had been ignited by roof falls.

He conceded that none of

those incidents occurred at this mine but further stated that this mine had
a histary of methane ignitions and liberation of methane.
As part of his order of withdrawal, Inspector Worthington alleged that
Itmann violated 30 C.F.R. § 75.329.

He

testified that the bleeder system for

the abandoned area was inadequate to "dilute, render harmless, or carry away
methane" because the stoppings were crushed and there was no ventilation of
the area where methane in the explosive range was found.

Inspector

Worthington stated that he released a chemical smoke cloud in the room where
the high concentration of methane was found and "smoke would not move; it just
mushroomed up against the top; there was no movement at all there."

He

further testified that Itmann knew or should have known of this condition
notwithstanding the 1969 closure orders for the following reasons:

1994

Itmann

personnel had been in the abandoned areas while accompanying MSHA inspectors;
and Itmann prepared a mine map of the abandoned area which was marked for the
route of travel to avoid roof falls into the place where the accumulation of
methane was found.

Itmann's approved plan for the ventilation of the bleeder

system required it to travel the bleeder system "if safe."

At no time prior

to the issuance of the order herein did Itmann assert that it would be unsafe
to travel the bleeder system.
Following the issuance of the order, the mine was closed for 10 working
days until the condition was abated.

At the time the order was terminated

only • 9 percent methane was found in the area where thei::e--had been 10 percent
previously.
Bernard Shrewsberry, a safety inspector employed by the UMWA, testified
that he had witnessed "balls of fire" resulting from sandstone roof falls in
other•mines.

Arnold Rogers, a UMWA safety committeeman at Itmann No. 3 Mine,

testified that he witnessed sparks resulting from roof falls and roof bolts
that had been subjected to pressure in Itmann Mine No. 1.
Itmann does not challenge MSHA's evidence concerning the percentage of
methane found or the fact that there was no movement of air ln the area wher~
explosive methane was found.

Rather, Itmann posits its defense on its inter-

pretation of 30 C.F.R. § 75.329 and the conclusion that no imminent danger
existed.

Itmann's position and evidence are as follows:

(1) the proper

place to take a methane reading to determine whether 30 C.F.R. § 75.329 has
been violated is at the point where air coming from the abandoned area enters
another split of air; (2) the possibility of a roof fall igniting the methane

where it was found in the explosive range is less than 1 percent; and
(3) even if there were an ignition of methane, the explosion would not affect
ventilation to the active workings of the mine which would endanger the
health and safety of the miners and any possible explosion could certainly
not cause serious injury or death to any miner.
Itmann's Vice President Frank Beard testified that prior to the issuance
of the order in controversy, there had been two meetings between MSHA and
Itmann concerning the problem of methane developing in the abandoned area of
Itmann's No. 3B Mine.

MSHA advised Itmann that the abandoned areas would be

inspected for methane and ventilation.

At no time prior _to--the issuance of
-

---

the order herein, did Itmann contend that the 1969 closure orders prevented
it from inspecting the abandoned areas.

However, Mr. Beard stated that based

upon his 16 years of coal mine employment, he never knew of any operator
which traveled its bleeder system and inspected it for methane.
that it was dangerous to send men into this abandoned area.

He believed

Itmann was never

told by MSHA to take methane readings inside the abandoned area.

For the

foregoing reasons, Vice President Beard stated that there was no way Itmann
could have been aware of this violation.
On

the issue of the possible existence of an imminent danger, Vice

President Beard testified that he had observed roof falls at .jB and other
mines but had never seen any such fall emit a spark.

However, he conceded

that methane in the range of 9 to 10 percent was the most dangerous and that
the lack of air flow would increase the hazards connected with the presence
of methane.

He further conceded that the presence of float coal and coal

1996

dust would-increase the severity of any possible explosion and the extent of
the area affected~- ~sed-upon Inspector Worthington's testimony of 10 prior
ignitions of methane in the 700 mines in this district, Vice President Beard
attempted to compute a probability of such an ignition in the area as less
than 1 percent.

Although he indicated that he had some experience with coal

mine explosions, he conceded that no one could be sure what route an explosion would take.

He further stated, "I don't know if it would have done any

damage to any other part of the mine down in the area where the people * * *
were working at that time."

He did not think that an explosion would affect

the active workings of the mine but if it short circuited the ventilation of
the mine, the miners would know the ventilation was disrupted and would have
30 to 35 minutes to walk out of the mine.
John Zachwieja, who had been superintendent of the 3B Mine for approximately '2 months at that time of this order, corroborated much of the testimony of Vice President Beard.

In addition, Superintendent Zachwieja

expressed his opinion that 30 C.F.R. § 75.329 only requires the operator to
keep bad air off the active workings of the mine.

He testified that Itmann

3B has a resident MSHA inspector on the premises every day because of the
amount of methane liberated.

He also conceded that roof b~lts subject to

pressure could pop out and cause sparks and that the lack of air movement in
the abandoned area would cause him concern.

However, he contended that there

was no imminent danger because the probability of a roof fall causing an
ignition of methane was "nil" and no matter how much air was put into the
abandoned gob area, it would never remove all of_ the methane.

He further

stated that the area between the place where the two- splits of air met and

1997

the place where methane was found in the explosive range was filled with roof
falls which had occurred-cluring the 10 years of closure, the top had sagged,
and roof bolts were broken.
Section foreman Eugene Kaiser stated that when he was an hourly employee
in 1970, he helped to drive two entries in the closed area to establish the
bleeder system at the suggestion of the Federal Government.
'nle UMWA and Itmann stipulated the identity of miners affected by the
order of withdrawal, their daily rates of pay, and the number of days that
they worked during the time this mine was closed by the order as set forth in
the Appendix hereto and incorporated herein.

'nle partres-further stipulated

that no more than 10 working days would have been scheduled at the Itmann
No. 3B Mine had no order been issued.
EVALUATION OF THE EVIDENCE
Immin\:nt Danger
The definition of the term "imminent danger" is identical in the 1969
and 1977 Acts.

In interpretating the 1969 Act, the Interior Board of Mine

Operations Appeals required that before an imminent dange~ could be found to
exist, the evidence must establish that "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 Corp., 2 IBMA 197, 212 (1973).

Thereafter,

this "as probable as not" standard was approved by the Fourth and Seventh
Circuit Courts of Appeals.

Eastern Associated Coal Company v. IBMA, 491 F.2d

277 (4th Cir. 1974); Freeman Coal Mine Co. v. IBMA, 504 F.2d 741, 745
(7th Cir. 1975); and Old Ben Coal Corp. v. IBMA, 523 F.2d 25 (7th Cir. 1975).

1998

However, in enacting the 1977 Act, the Senate Committee on Human Resources
stated:
The Committee disavows any notion that imminent danger
can be defined in terms of a percentage of probability that
an accident will happen; rather the concept of imminent danger requires an examination of the potential of the risk to
cause serious physical harm at any time. It is the Committee's view that the authority under this section is essential
to the protection of miners and should be construed expansively by inspectors and the commission.
Leg. Hist. of the Federal Mine Safety & Health Act of 1977, 95th Cong.,
1st Sess. (hereinafter Leg. Hist. 1977 Act) at 38.
Earlier this year, the Federal Mine Safety and Health Review Commission
(hereinafter Commission) announced that:
"We • • • do not adopt or in any way approve the 'as
probable as not' standard • • • • With respect to cases that
arise under the [1977 Act], we will examine anew the question
of what conditions or practices constitute an imminent
d~nger."

Pittsburg & Midway Coal Mining Co. v. MSHA, IBMA 76-57, April 21, 1980.
Hence, in cases involving imminent danger orders under the 1977 Act,
there is no longer a requirement that MSHA p~ove that "it is just as probable
as not" that the accident or disaster would occur.

In light of the legisla-

tive history of the 1977 Act, it is doubtful that any quantitative test can
be applied to determine whether an imminent danger existed.

Rather, each

case must be evaluated in the light of the risk of serious physicial harm or
death to which the affected miners are exposed under the conditions existing
at the time the order was issued.

1999

I agree with the Senate Committee on Human Resources that imminent danger
cannot "be defined Tu t:etins or- a percentage of probability that an accident
will happen • • • • " Therefore, I reject the testimony of Inspector
Worthington that the probability of such an occurrence was 50 percent.

Like-

wise, I reject Itmann's evidence that the possibility of such occurrence was

!:
approximately 1 percent.or nil.
establish the following:

(1)

I find that the facts of the instant case
A large volume of methane in the most explosive

range of 9 to 10 percent existed in an abandoned area of the mine where there
was no effective ventilation; (2) roof falls of sandstone and roof bolts can
cause sparks sufficient to ignite methane in the range of 9 to 10 percent;
(3) there is a history of roof falls in the abandoned area-of this mine; and
(4) an ignition of methane at the point where it was found in the explosive
range in the abandoned area of this mine could result in a severe explosion
which could affect the ventilation of the active workings of the mine, and
expose· the miners at these places to death or serious physical harm before
the condition could reasonably be abated.

Although I have rejected the

inspector's estimate of a SO-percent chance of this occurrence, I find that
the evidence of record supports his other testimony that the occurrence of
the above potential accident is "very possible" and "not remote."

Based upon

the legislative history of the 1977 Act, and the decision of the Commission
in Pittsburg & Midway Coal Mining Company v. MSHA, supra, I conclude that
under the facts herein, the inspector acted properly in issuing the order of
withdrawal due to imminent danger because there was a reasonable expectation
that the condition which he found could cause death or serious physical harm
before it could be abated.

2000

Violation of Mandatory Safety Standard
The pertinent part of section 303(z)(2) and 30 C.F.R. § 75.329 is as
follows:
When ventilation of such areas is required, such ventilation shall be maintained so as continuously to dilute
render harmless, and carry away methane and other explosive
gases within such areas and to protect the active workings
of the mine from the hazards of such methane and other
explosive gases. Air coursed through underground areas from
which pillars have been wholly or partially extracted which
enters another split of air shall not contain more than
2.0 volume per centum of methane when tested at the point it
enters such other split.
It should be noted that this regulation was mandated by section 303(z)(2) of
the Act which was carried over in its entirety from the same section in the
1969 Federal Coal Mine Health and Safety Act.
MSHA and the UMWA contend that this section requires that when a ~enti-

.

lation system is used in an abandoned area, a two-pronged test be met:

(1)

the ventilation system continuously dilute, render harmless, and· carry away
methane and other explosive gases; and (2) air from abandoned areas which
enters another split of air shall not contain more than 2 percent methane.
Itmann contends that this. regulation should be read as a -whole and, if read
as a whole, only requires one thing:

that air from abandoned areas which

enters another split of air shall not contain more than 2 percent methane.
The legislative history of section 303(z)(2) of the. 1969 Act indicates
that Congress intended for there to be a two-pronged test regarding ventilation of abandoned areas.

The Conference Report states in pertinent part:

2001

When ventilation is required, the· Secretary or his
inspector must .be·sati-sfied that the ventilation in such
areas will be maintained so.as continuously to dilute, render
harmless, and carry away methane and other explosive gases
within such areas and to protect the active workings of the
mine from hazards of such methane and other explosive gases.
* * * As an additional safeguard when ventilation is
required, the conference agreement provides that air coursed
through undergroµnd areas from which pillars are wholly or
partially extracted which enters another split of air shall
not contain more than 2.0 volume per centum of methane, when
tested at the point it enters such other split. The managers intend that this latter provision not be construed as
permitting accumulations of methane near or in the explosive
range in the pillared or abandoned areas on the basis that
the methane in the return does not exceed such percentage.
[Emphasis added.]
Leg. Hist. of the Federal Coal Mine Health and Safety ~t--of 1969, 9lst Cong.,
2d Sess. (hereinafter Leg. Hist. 1969 Act) at 1044.
Section 303(z) of the 1969 Act was derived from sections 303(p), (q) and
(r) of the original House Bill.
sections is stated.

In the House Report, the intent of those

The Report states in pertinent part:

Methane, however, also accumulates in areas from which
pillars have been removed and in other abandoned areas of a
mine. These areas are often inaccessible because the roof
has been deliberately allowed to fall or caving has otherwise
occurred. In these cases,_it is not usually possible to
determine methane concentrations without great physical risk,
and in many instances, the areas are completely inaccessible.
In addition, during the time pillars are being removed and
the roof permitted to fall in a planned sequence, ventilation
of the area can best be accomplished with present technology
by ventilating the area in a systematic manner.
These pillared and abandoned areas that are no longer
being mined are not tested as frequently as working places,
nor can they be given the same attention a working place
receives. Consequently, these.areas represent a great potential source of explosions, which can lead to widespread
underground destruction with attendant loss of life.
Sections 303(p), (q), and .{r) are all. directed toward
solving this difficult problem. It is the intent of these

2002

three sections to require that the areas of mines described
above be made..-as.--safe-- as- present technology will permit so
that the possibility of disasters from this source can be
reduced or eliminated. There is general agreement among
mining and safety engineers that bleeder systems are difficult to maintain in satisfactory conditions over long periods
of time and they do not eliminate explosive concentrations of
gas in the gob because of bypassing of air when the gob area
extends over long distances. Sections 303(p), (q), and (r)
require that when bleeder entries or systems or equivalent
means are permitted instead of sealing, they shall be effective. This means that, where no superior method of ventilation is available, one of these may be approved by an
authorized representative of the Secretary. When bleeder
entries or systems are approved, they shall be used only
under conditions where they can be adequately maintained,
over short distances. Bleeder air shall not contain more
than 2 volume per centum of explosive gases when sampled at
a point immediately before entering another split of air.
Leg. Hist. 1969 Act at 578-79.
This language makes it clear that Itmann's argument on this issue is
incorrect.

Just because the percentage of methane is below 2 percent does

not m~an that an operator has not violated this section of the Act.

Even if

the percentage of methane in the air from the abondoned·area which enters
another split of air is below 2 percent, the operator violates this section
if it has not maintained ventilation "so as continuously to dilute, render
harmless, and carry away methane and other explosive gases" in the abandoned
area.

The legislative history states that this regulation means that "such

ventilation will be adequate to insure that no explosive concentrations of
methane or other gases will be in this area."

Leg. Hist. 1969 Act at 1044.

All parties concede that the methane content of the air from the abandoned area of this mine at the point where it entered another split of air
was less than 2 percent.

However, I have already found that 30 C.F.R. §

75.329 also requires that the ventilation of the abandoned area "be

2003

maintained so a_s continuously to dilute, render harmless, and to carry away
methane and explosive gases within such areas •

. . ." Inspector Worthington

testified that there was no movement of the air at the place where methane
in the explosive range was found.
diet this testimony.
§

Itmann presented no ·evidence to contra-

Accordingly, I find that Itmann violated 30 C.F.R.

75.329 by failing ·to maintain ventilation of the abandoned area of its

mine as required by this regulation.

Itmann's belated assertion that it

was unsafe for its employees to travel the abandoned area and that any such
travel would be in violation of the 1969 closure orders is rejected and
will be discussed under the criteria for assessing a civil penalty.
Civil Penalty
Since I have found that Itmann violated 30 C.F.R. § 75.329, the next
issue is the amount of the civil penalty to be assessed.

In assessing a

civil penalty, the six criteria set forth in section llO(i) of the Act
shall be considered.

As pertinent here, I have considered Stipulations

Nos. 7 through 10 concerning Itmann's previous history, size of business,
ability to continue in business, and good faith in attempting to achieve
rapid compliance.

The remaining criteria to be discussed are whether

Itmann was negligent and the gravity of the violation.
Itmann was notified by MSHA late in 1977 that the Government was concerned about the possible accumulation of explosive gases in the abandoned
area of this mine.

During the 2 years after that notice, MSHA inspected the

abandoned area on two occasions prior to the inspection on which the instant
order was issued.

At no time prior to the issuance of this order did Itmann

claim that it was unsafe· to travel the abandoned area or that such travel

2004

would be in violation of the 1969 closure orders for the abandoned section.
The evidence establishes that Itmann prepared a mine map of the abandoned
areas showing roof falls which had occurred since the 1969 orders and assigned
its employees to accompany MSHA inspectors into the abandoned area without
protest.

The conclusion to be drawn from this evidence is that Itmann knew

that it was required.to properly ventilate the abandoned area and could not
rely solely upon the percentage of methane at the point were the air coming
out of the abandoned area entered another split of air.

Hence, its failure

to adequately ventilate the abandoned area of the mine constitutes ordinary
negligence.
In upholding the order of withdrawal based on imminent danger herein,
I have previously found that miners employed in the active workings of the
mine were exposed to serious physical harm or death due to the condition
that e~isted.

The evidence establishes that more than 40 miners worked in

the affected area on each shift for three shifts a day.

Theref~re,

I find

that this was a very serious violation.
Based upon the evidence of record and the criteria set forth in section
tion llO(i) of the Act, I conclude that a civil penalty of $2,000 should be
imposed for the violation found to have occurred.
Entitlement of Miners
Section 111 of the Act provides in pertinent part:
If a coal or other mine or area of such mine is closed by
an order issued under section 104 or section 107 of this title
for a failure of the operator to comply with any mandatory
health or safety standards, all miners who are idled due to
such order shall be ·fully compensated after all interested

2005

parties are given an opportunity for a public hearing, which
shall be expe_d_ite~ Jn.. s.uch cases, and after such order is
final, by the operator for lost time at their regular rates of
pay for such time as the miners are idled by such closing, or
for 1 week, whichever is the lesser.
The purpose of the section is outlined at page 634 of the Legislative
History of the 1977 Act which states:
Miners entitlements resulting from closure orders
As the Committee has consistently noted, the primary objective of this Act is to assure the maximum safety and health of
miners. For this reason, the bill provides at Section 112
[enacted as section 111] that miners who are withdrawn from
a mine because of the issuance of a withdrawal order shall
receive certain compensation during periods of their withdrawal. This provision, drawn from the Coal Act, rs- not
intended to be punitive, but recognizes that miners should
not lose pay because of the operator's violations, or because
of an imminent danger which was totally outside their control.
It is therefore a remedial provision which also furnishes
added incentive for the operator to comply with the law.
I have already found the following facts to be established by the prepondera~ce

of the evidence:

(1) Itmann's 3B Mine was closed by an order properly

issued under section 107 of the Act; (2) Itmann failed to comply with the mandatory safety standard set forth at 30 C.F.R. § 75.329 and that failure caused
the mine to be closed; and (3) the mine in question was closed for 10 working
days.

Based upon the above findings, it follows that all miners who were

idled by this order are entitled to full compensation "at their regular rates
of pay for such time as the miners are idled by such closing, or for 1 week,
whichever is the lesser."

Itmann and the UMWA stipulated the identity of the

miners affected by the order, their daily rates of pay,

the number of day~

they worked and the number of days they were idled during the time this mine
was closed.

These stipulations are included the Appendix to this decision

which is attached hereto and incorporated herein.

2006

However, Itmann and the UMWA disagree on the amount of compensation owed.
Itmanns position is as follows:
Section 111 only provides for the miner to be compensated
for a maximum of one week (5 days). Therefore, any time that
an individual was permitted to work by Itmann during the ten
(10) day period must be subtracted from the maximum five
(5) day compensable period to determine compensation due.
By way of illustration, Itmann contends that a miner who worked for 5 of the
10 days that the mine was closed would be entitled to no compensation under
section 111.
On

the other hand, the UMWA' s position is as follow~_L--·

The UMWA contends that the number of days worked by a
particular miner should be subtracted from the total number
of days that the 3B mine would have been in operation between
September 13 and September 28, 1979, had the order not been
issued (in this case 10 days) in order to determine how many
days a miner was actually idled by the order. If the period
df time the miner was idled is five or more days, the miner
would be awarded only five days compensation. If the period
of time the miner was idled is less than five days, then the
miner would be awarded compensation only for the one, two,
three or four days the miner was actually idled.
Applying the UMWA's position to the prior illustration, .the UMWA contends that
the miner who worked for 5 of the 10 days the mine was closed would be
entitled to 5 days' wages under section 111 of the Act.
While the specific issue concerning the determination of "all miners who
are idled due to such order • • • • " under section 111 ·of the 1977 Act has
not been decided by the Commission, a similar issue has been addressed in
three recent cases.

In Youngstown Mines Corporation, Docket No. HOPE 76-231,

August 15, 1979, the union sought compensation under section llO(a) of the
1969 Act.

MESA issued a ·withdrawal ord~r under section 104(b) of the 1969

2007

Act because the 9perator failed to abate a violation.

All workers on the

shift when the order was issued were assigned to abatement work.

The

workers on the next shift (the night shift) were also assigned to abatement
work.

After 4 hours they were sent home. Section llO(a) of the 1969 Act

provides in pertine~t part:
If a coal mine or area of a coal mine is closed by an
order issued under section 104 of this title, all miners working during the shift when such order was issued who are idled
by such order shall be entitled to full compensation by the
operator at their regular rates of pay for the period they are
idled, but for not more than the balance of such shift. If
such order is not terminated prior'to the next working shift,
all miners on that shift who are idled by such order shall be
entitled to full compensation by the operator at.tbert-regular
rates of pay for the period they are idled, but for not more
than four hours of such shift * * *· [Emphasis added.]
The miners on the night shift were paid for the first 4 hours of the
shift (the time they worked on abatement), but were not paid for the remainder
of the· shift.

The miners filed a claim for compensation for the 4 hours of

the shift they did not work.
On appeal, the operator contended that section llO(a) requires that an
operator compensate the next working shift only for the first 4 hours
following a withdrawal order.

The operator argued that the miners were idled

by the withdrawal order for the first 4 hours of their shift even.though they
worked on abatement during that time and that they were only entitled to compensation for those first 4 hours.
The Commission rejected the operator's interpretation of section llO(a).
The Commission held that the miners were idled after they stopped work and
were entitled to compensation for those 4 hours that they were idled because
of the withdrawal order. · The Commission reasoned that but for the withdrawal

2008

order, the-miners would have worked the entire shift.
idled for 4 hours1'y -the order.
4 hours.

Therefore, they were

They were entitled to compensation for those

The reasoning in Youngstown Mines. Inc., was affirmed by the Com-

mission in Kanawha Coal Company, Docket No. HOPE 77-193, September 28, 1979,
and in Peabody Coal Company, Docket No. 77-50, November 14, 1979.
In the instant case, Itmann contends that und~r section 111 "any time
that an individual was permitted to work by Itmann during the ten (10) day
period must be subtracted from the maximum five (5) day compensable period
to determine compensation time."
~'

Under the reasoning of Youngstown Mines.

supra, this argument is rejected.

drawal order.

The miners were idled by the with-

The amount of time that they were idled is the period of

withdrawal minus the period of alternate work which they performed.

They

are entitled to be compensated for that period, up to a maximum of 1 week.
However, Stipulation No. 12 in this matter provides that miners. on the
day shift of September 13, 1979, were paid by Itmann for the balance of their
shift after the order was issued (4 hours) and the miners who were scheduled
to work the evening shift on that day were paid for 4 hours of that shift.
Hence, all miners on the day and evening shift have already received
one-half day's wages as compensation under this order.

Section 111 clearly

provides that the maximum amount of compensation that can be awarded under
section 111 due to a closure order is 1 week.

Stipulation No. 13 in this

case provides that the maximum number of days' wages to which miners who were
idled by the order would be entitled to 5 days' wages.

Since the miners on

the day and afternoon shifts have already received one-half day's wages,
the period for which they can receive compensation is the number of days

2009

they were idled minus the 4 hours for which they have already been compen- .
sated.

The max:lniuni-coinpensation which they can receive in this matter is

4-1/2 days' wages.

Since the miners on the midnight shift received no com-

pensation under this order, the period for which they can receive ~ompensation is the number of days they were idled up to 5 days.
I have applied the foregoing principles to the schedules of miners
employed in this mine and the amount of compensation due to each miner is
set forth in the Appendix.

For the day and evening shift, the amount of com-

pensation due each miner is determined by multiplying the stipulated period
for which they were idled by the order minus the 4 hours for which they have
-

---

already been compensated (up to 4-1/2 days) times their daily rate of pay.
For the midnight shift, the amount of compensation due each miner is determined by multiplying the stipulated period they were idled by the order (up
to 5 days) times their daily rate of pay.

The total amount of compensation

owed by Itmann to the 148 miners idled by this order is $46,194.73.
The only remaining issue is the amount of interest, if any, which is
awardable in this matter.

The UMWA contends that the miners are entitled to

12 percent interest on the compensation owed.
issue in its brief.

Itmann does not address this

The UMWA concedes that "in the cases .. decided to date,

the Commission has awarded interest at the rate of 6 percent per annum •

. . ."

However, the UMWA argues that the Connnission should follow the precedent of
the National Labor Relations Board which, in 1977, abandoned 6 percent
interest on back pay awards and followed the Internal Revenue Service
"adjusted prime interest rate" which is currently 12 percent.
supporting. the higher rate of interest is as follows:

The policy

to encourage prompt

compliance with Commission orders; to encourage the operators to comply with

2010

the health and safety provisions of the Act; and to fully compensate the
miners for their losses.

I am aware that other judges of the Commission

have awarded interest in excess of 6 percent per annum.

Although the UMWA

presents a persuasive argument in support of its position in favor'of higher
interest, I am constrained to follow the decision of the Commission in
Peabody Coal Company, Docket No. VINC 77-50, November 14, 1979, where it
modified a judge's decision on interest to a rate of 6 percent per annum
from the date compensation was due up to the date on which payment is made.
If this policy is to be changed, it is for the Commission to make the change.
There is no evidence of record to establish the precise dates on which
.

each of the miners was idled.

--

However, since the order in question was issued

on September 13, 1979, I find that the amount of compensation ordered paid
herein was due to each of the miners 1 week thereafter:

September 20,, 1979.

Therefore, Itmann is ordered to pay each miner the amount of compensation due
as set forth in the Appendix plus interest at the rate of 6 percent per annum
from September 20, 1979, to the date payment is made.
ORDER
WHEREFORE, IT IS ORDERED that the application for review is DENIED and
the subjec~ withdrawal order is AFFIRMED.
IT IS FURTHER ORDERED that Itmann pay the sum of $2,000 within 30 days
of the date of this decision as a civil penalty for the violation of 30 C.F.R.
§

75.329.

2011

IT IS FURTHER ORDERED that Itmann pay the amount of $46,194.73 as compensation to the 148 l.ndividua!iid.ners as set forth in the Appendix which is
attached hereto and incorporated herein plus interest at the rate of 6 percent
per annmn from September 20, 1979, to the date payment is made.

a.

s A. Laurenson,
Distribution by Certified Mail:
Karl T. Skrypak, Esq., Consoli!fation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15214
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Phil~9elphia, PA
19104
. --Mary Lu Jordan, Esq., United Mine Workers of .America, 900 15th Street,
NW., Washington, DC 20005

2012

APPENDIX
'·

DAY SHIFT
Miners
Paul Hypes
David Goode
Kenneth Woods
Jerry Christian
Kenny Dancy
Patricia Cook
Rickey Tawney
Phyllis Alfrey
Danny R. Mitchem
Shirley Rollins
Ronnie Reed
Jimmy Clyburn
James Whitlow
Freddie Fox
Shales Elkins
James Elswick
Bobby Linsey
Douglas Morgan
Phillip Martin
Richard Mutterback
Ernest Carroll
Dominick Delgrande
Ronnie Tignor
Milton Parsell
Harrison Belcher
Loren McGrady
Melvin Thorn
David Repass
David Chipman
Jack Garretson
Gary· Lilly
Larry E. Bailey
Carlos Hatfield
Deward Dillion
Frank Campbell
Johnny Lane
Doug Perkins
Thomas Bailey
Charles Lindsay
Terry Acord
Leon Bailey
Ronald Campbell

Dailz Rate

Days
Worked

Days
Idled

70.38
70.38
70.38
70.38
75.68
70.38
70.38
70.38
70.38
70.38
70.38
70.38
70.38
70.38
69.38
78.92
70.96
70.96
70.38
72.74
70.38
78.92
70.38
70.96
70.96
75.68
72.74
78.92
78.92
78.92
78.92
78.92
70.38
78.92
72.74
78.92
78.92
72.74
65.79
70.38
72.74
78.92

3
1
1
0
3
4
3
4
3
2
2
4
2
2
10
5
1
0
7
0
0
9
3
5
3
5
5
6
5
0
2
5
5
10
3
4
0
5
7
4
4
0

7
9
9

2013

10

7
6
7
6
7
8
8
6
8
8
0
5
9
10
3
10
10

1
7
5
7
5
5
4
5
10
8

5
5
0
7
6
10
5
3
6
6
10

Days of
Amount of
Compensation Compensation
Due
Due
4-1/2
4-1/2
4-1/2
4-:-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-JJ2··
4-1/2
0
4-1/2
4-1/2
4-1/2
2-1/2
4-1/2
4-1/2
1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
3-1/2
4-1/2
4-1/2 ·4-1/2
4-1/2
4-1/2
0
4-1/2
4-1/2
4-1/2
4-1/2
2-1/2
4-1/2
4-1/2
4.;.1/2

$316.71
316.71
316.71
316.71
340.56
316.71
316.71
316. 71
316.71
316.71
316.71
316.71
316.71
316.71
0
355.14
319.32
319.32
175.95
327.33
316.71
39.46
316.71
319.32
319.32
340.56
327.33
276.22
355.14
355.14
355.14
355.14
316.71
0
327.33
355.14
355.14
327.33
164.48
316.71
327.33
355.14

,.

-

i."

:

:'.

DAY SHIFT (continued)
Miners
Rose Sansom
Frankie Campbell
Frank Chipman
Michael Brubaker
Frank Crites
Rodney Mitchem
Kenner Dancy
Robert Bailey
Sherry Osborne
Charles Dancy
Gary Puckett
Walter McKinney
Wayne Pennington
Garland Morgan
Billy J. Farruggia
Virgil Harden
Robert Bryson
Gary Naylor
Darrell Worley
Paul Blankenship

Dailz rate
70.38
75.68
72.74
70.38
72.74
70.38
78.92
72.74
70.38
78.92
78.92
70.38
78.92
75.68
78.92
78.92
78.92
78.92
78.92
75.68

Days
Worked

Days
Idled

·Days
Compensation
Due

Amount of
Compensation
Due

0
0

10
10

5

5

2
3
3
2
2
3

8
7
7
8
8
7

4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
4-1/2
1/2
4-1/2 ..

$316.71
340.56
327.33
316.71
327.33
316.71
355.14
327.33
316.71
355.14
355.14
316.71
39.46
340.56
39.46
355.14
355.14
355.14
355.14
340.56

5

5

4

6

5

5

9

1

5

5

9

1

5

5

2
4

8
6

5

5

4

6

2014

. --y-12

4-1/2
4-1/2
4-1/2
4-1/2
4-1/2

EVENING SHIFT
-~

Miners
Charles Cole
Jess Cole
John Cunningham
Terrell Miller
Roy Hall
Richard Bekker
James Repass
Robert Payne
Randy Lambert
Thomas Johnson
Steve Lester
Johnny Hollingshead
Roger Hollingshead
Edward Gendron
Jerry Lusk
William Thompson
Freddy Dunford
Gary Shrewsbury
Ward Johnson
Richard T. Gray
Mert Privett
Galen 'clay
Quincy Murdock
Shirley Altizer
Larry Rogers
James Archie
Jimmy Trent
Charles Cadle
John Becklehimer
Jack Goff
Roger Lester
Richard Blackburn
John Hughes
Darrell Lilly
Johnnie Farley
Allen Proffitt
Ernest Mullins
Jimmie Kincaid
George Adkins
A. Sizemore
William Ramsey
Danny Stabbs
David Blankenship

>

--

~-

--

DailX: Rate

Days
Worked

Days
Idled

Days of
Compensation
Due

Amount of
Compensation
Due

80.52
80.52
74.34
74.34
·80.52
80.52
80.52
80.52
80.52
80.52
80.52
74.34
80.52
80.52
80.52
74.34
74.34
77 .28
80.52
80.52
80.52
71.98
71.98
71.98
71.98
71.98
71.98
71.98
80.52
72.56
80.52
80.52
71.98
71.98
77 .28
71.98
71.98
71.98
80.52
80.52
77 .28
74.34
74.34

6
6
6
7
3
1/2
6
0
0
6
0
0
0
8
5
0
6
6
9
5
9
7
7
8
5
7
1
0
6
0
4-1/2
3-1/2
2
9
0
1-1/2
10
2
5-1/2
3-1/2
4
1
7

4
4
4
3
7
9-1/2
4

3-1/2
3-1/2
3-1/2
2-1/2
4-1/2
4-1/2
3-1/2
4-1/2
4-1/2
3-1/2
4-1/2
4-1/2
4-1/2
1-1/2
4-1:/Z
4-1/2
3-1/2
3-1/2
1/2
4-1/2
1/2
2-1/2
2-1/2
1-1/2
4-1/2
2-1/2
4-1/2
4-1/2
3-1/2
4-1/2
4-1/2
4-1/2__
4-1/2
1/2
4-1/2
4-1/2
0
4-1/2
4
4-1/2
4-1/2
4-1/2
2-1/2

$281.82
281.82
260.19
185.85
362-.34
362.34
281.82
362.34
362.34
281.82
362.34
334.53
362.34
120. 78
362.34
334.53
260.19
270.48
40.26
362.34
40.26
179.95
179. 95
107.97
323.91
179.95
323.91
323.91
281.82
326.52
362.34
362.34
323.91
35.99
347.76
323.91
0
323.91
322.08
362.34
347.76
334.53
185.85

201,5'

10

10
4
10
10
10
2
5
10

4
4
1
5
1
3
3
2
5
3
9
10
4
10
5-1/2
6-1/2
8
1
10
8-1/2
0
8
4-1/2
6-1/2
6
9
3

MIDNIGHT SHIFT
Miners
William Faulkner
Stephen Scott
Richard L. Belcher
Ronnie Shrewsbury
Richard Howell
Mark Hylton
Joseph Pierce
William Peters
Danny Tiller
Donald Skaggs
Carl Belcher
Esther O'Dell
Bennie Webb
Jack Casteel
Arnold Rogers
James Lankford
Charles Marquis
Deborah Meadows
Jerry Rotenberry
Granville McKinney
Roger Bailey
Bernard Atwood
Larry G. Bailey
Brett'Duncan
Alan Handy
Roy Osborne
Frank Echols
John McKinney
Gregory Hatfield
Hubert Scott
Roger Redden
William Jones
James Cooper, Jr.
Stanley Wriston
Raymond Ortiz
Clyde McKinney
Bernard Campbell
Darrell Doss
Ronald Winston
Johnny Hopkins
Larry Lovejoy
William Duncan
George Cook
Robert Mullins
Paul Christian
Clarence Dickens
Bobby Bailey

Daily Rate
75.14
75.14
81.32
81.32
81.32
75.14
81.32
8;J..32
75.14
81.32
81.32
72. 78
78.08
81.32
81.32
75.14
75.14
72. 78
81.32
81.32
75.14
81.32
81.32
75.14
81.32
81.32
81.32
81.32
81.32
68.92
73.36
73.36
81.32
72. 78
72.78
78.08
72.78
72. 78
72.78
72.78
72.78
72.78
72.78
72.78
72.78
81.32
81.32

Days
Worked

Days
Idled

3
3
0
0
4
2
9
3
0

7
7
10

5
1

Days
Compensation
Due
5
5
5
5
5
5

10

6
8
1
7
10

1
5
5
5
5

5

9
3
8

7
2
0
8
2

10

5
5

5
5

2
0
0
6
5

8
10

2
8

10

3
5
5
-

~

25
5
5
5
5
5

4

4

5

5
5

5
5

6
9
4
2
4
10
2
6
3
3

4
1
6
8
6
0
8
4
7
7

4

5

5

3

7

5

5

4
2
7
7
0
0
6
6
7
6

6
8
3
3
10
10
4
4
3
4

1
5
5
5

0
5

4
5-5
5
5
5
5
5

3
3
5
5

4
4
3
4

.Amount of
Compensation
Due
$375.70
375.70
406.60
406.60
406.60
375.70
81.32
406.60
375.70
406.60
406.60
218.34
390.40
406.60
162.64
375.70
375.70
363.90
406.60
406.60
375.70
325.28
406.60
375.70
325.28
81.32
406.60
406.60
406.60
0
366.80
293.44
406.60
363.90
363.90
390.40
363.90
363.90
363.90
218.34
218.34
363.90
363.90
291.12
291.12
243.96
325.28

"

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

S 1 JUL 1990

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

Civil Penalty Proceeding
Docket No. LAKE 79-51-M
A.c. No. 11-02666-05001

Petitioner
v.

North American Pit
NORTH AMERICAN SAND AND GRAVEL
COMPANY,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor,
u.s. Department of Labor, for Petitioner;
Charles w. Barenfanger, Jr., President, North .American
Sand and Gravel Company, Vandalia, Illinois, for
Respondent.

Before:

Judge Charles c. Moore, Jr.

The hearing in the above case was scheduled to commence at 10 a.m. on
June 11, 1980, in the Fayette County Courthouse in Vandalia, Illinois. The
contract court reporter did not arrive that morning as scheduled and it was
not until noon that we were able to obtain a local court reporter and commence the hearing. I realize that this wasted time was a hardship on Respondent but I do not believe it would be proper to consider this inconvenience
in mitigation of any assessed penalties.
It was stipulated that Respondent is a small operator but is able to
afford the penalties assessed by the Assessment Office. Jurisdiction was
also stipulated. There was no prior history of violation.
Normally, this mine is operated by two people who start the day by
doing maintenance on various equipment and getting the screens and shaker
conveyors, etc., running. Thereafter, these two employees operate front-end
loaders and move the sand and gravel from place to place. Most of the time,
no one is in actual charge of the operation. When present, however, Mike
Themig does direct the operations of the pit. Neither of the two employees
who worked at the pit during the time of the inspection in this case is
still employed there and Mike Themig was out of town for several days during
the inspection. Only Inspector Aubuchon was able to testify as to the conditions in the pit at the time of the inspection.

2017

It was Mr. Themig' s testimony that an important part of a machine
was broken and ·.tha~_.there-could be no production pending the receipt of
this piece of machinery. ·I have no reason to doubt the testimony, but the
fact remains that Inspector Aubuchon did observe the machinery running and
the bulldozers operating and regardless of whether there was any actual
production, the equipment was operating. Whatever dangerous situations
existed were just as dangerous whether or not there was production. In
this connection, one of Respondent's arguments was that if it had completely
shut down the plant during the inspection, no citations could have been
issued. That is not a correct statement of the law. While it is true that
if an operator took a guard off of a sprocket or chain for the purpose of
working in that area while the machinery was not running, there would be no
violation, but shutting a piece of equipment down for the purpose of an
MSHA inspection does not serve to avoid the issuance of a citation. I have
heard a m.nnber of cases where the plant operator, as a courtesy, ceased
operations to facilitate the inspector's investigation, but in no instance
did the fact that the operation had ceased prohibit the inspector from
issuing citations.
Because basically only two miners operate in this pit; the inspector
thought, with respect to all nine citations that he issued, that the probability of an accident was very low. I agree with the inspector's judgment
because, for example, it would be very unlikely that a front-end loader operator would be injured by an unguarded V-belt or that he would be injured
because the other front-end loader failed to have the required backup alarm.
The improbability of injury, however, does not establish that there was no
violation of a safety standard.
The nine alleged violations here involve failure to have backup alarms,
failure to provide berms at dumping locations, failure to provide guards
at dangerous locations, failure to have a guard in place at such a location,
and the failure to have a block-out system when electric-powered equipment
is being repaired. These nine citations were issued during the very first
inspection and, in fact, the first visit that any MSHA official had made
to the mine. All of the citations issued by the inspector were abated
promptly and in good faith.
Citation Nos. 367287 and 367295 both allege that front-end loaders were
not equipped with audible backup alarms in violation of 30 c.F.R. § 56.9-87.
The evidence clearly establishes that the two articulated and wheel-type
front-end loaders were not equipped with backup alarms and the drivers were
not provided with observers to signal when it was safe to back up. The only
factual question is whether the driver's view to the rear was obstructed.
The inspector testified that the operator could not see a man 15 feet behind
the rear portion of the front-end loader. Respondent offered a picture
taken from the driver's compartment with the camera facing the rear, but the
picture is inconclusive as to the operator's visibility. I find that the
rearward visibility was obstructed and that backup alarms were required for
these two pieces of equipment. In view of the circumstances already
described, however, I find the negligence and gravity to be of a low order.
A penalty of $10 is assessed for each of these citations.

2018

Citatfon No. 367288 alleges a violation of 30 c.F.R. § 56.9-54 in that
berms were not pl ac.ed . ..at- t--he--side of a ramp leading up to a hopper. The
standard alleged to have been violated requires berms or bumper blocks to
prevent overtravel and overturning at dumping locations and does not require
berms at the side of the ramp. The hopper would prevent overtravel in the
dumping area. The inspector may have intended to cite section 59.9-22 but
no mention of that section was made at the hearing. The citation is accordingly vacated.
Citation Nos. 367290 and 367291 allege guards were not provided as
required by 30 C.F.R, § 56.14-1. The inspector testified that while the
pinch points involved in these two citations were high, they were nevertheless within reach. Respondent's Exhibit 3, a photograph, shows both the
chain and drive pulley involved in these citations and indicates that they
are both out of reach. I think the photograph, together with Mr. Themig's
testimony, rebutted the prima facie case made by the inspector and left the
Government with the burden of putting on rebuttal evidence as to the photograph. The Government failed to do so and in my opinion, failed to establish that these two violations existed. The citations are accordingly
vacated.
Citation No. 367289 alleges a violation of 30 C,F.R. § 56.14-1 in that
a chain drive and sprocket 4 to 5 feet off the ground was not guarded. Anyone shoveling in the area could have been injured. The violation was established and Respondent was negligent in allowing the condition to exist. Any
injury caused would have been serious but as previously stated because of
the way in which this mine was operated, the probability of an injury was
low. A penalty of $10 is assessed,
Citation No. 367292 alleges a violation of 30 C,F.R. § 56.14-6 in that
a chain drive pulley guard had been removed and not replaced before the
machinery was started up. Again, the inspector was the only witness who
observed the event and he testified that although the equipment was not running when he issued the citation, it was later operated without the guard in
place. A violation was established but there was no evidence of negligence
other than the fact that the violation occurred. The probability of injury
was not high and a penalty of $10 is assessed.
Citation No. 367293 alleges a violation of .30 C.F.R. § 56.14-1 in that
a self-cleaning tail pulley 3 or 4 feet off the ground was not guarded. A
self-cleaning tail pulley is hazardous in itself without regard to any pinch
points and Respondent was clearly negligent in allowing such a condition to
exist. I find the violation occurred, that Respondent was negligent but
that the probability of an injury was low. A penalty of $15 is assessed.
Citation No. 367294 alleges a violation of 30 C,F.R. § 56.12-16 in that
there was no lock-out procedure to insure that the one working on electrical
equipment would not be injured by someone else inadvertently starting the
equipment. The inspector was told that when the equipment was being repaired,
the fuses were taken out of the fuse box but when he looked at the fuse box
while the equipment was down for repairs, the fuses were in place.· But even

2019

if the fuses had been removed, t4is is not the type of foolproof system that
the regulation requires~ _If the person working on the equipment carried in
his pocket the only-fuses available or if the breaker box had been locked
open and the worker carried the key, the regulation would have been satisfied. lbe evidence clearly establishes a violation and the failure to have
such a lock-out system did amount to negligence but again the probability
of an injury was low because only two workers were in the plant. A penalty
of $15 is assessed~
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within 30 days, a
civil penalty in the total amount of $70.

~f ?77~ Z.

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:

Miguel J. Carmona, Esq., Office of the Solicitor, u.s. Department of
Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604
(Certified Mail)
Charles W., Barenfanger, Jr., President, North American Sand and Gravel
Company, P.O. Box 190, Vandalia, IL 62471 (Certified Mail)

2020

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

3 1 JUL 1980
CONSOLIDATION COAL COMPANY,
Applicant

Application for Review
Docket No. WEVA 79-129-R
Order No. 804918
April 16, i 979

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

Robinson Run No. 95
Mine
Respondent
DECISION

- --·-·

Appearances:

Karl T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Applicant;
David E. Street, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.

Before:

Judge Cook

I.

Procedural Background

0n May 14, 1979, Consolidation Coal Company (Applicant) filed an application for review pursuant to section 105(d) !:_/ of the Federal Mine Safety
1/ Section 105(d) provides:
"If, within 30 days of receipt thereof, an operator of a coal or other mine
notifies the Secretary that he intends to contest the issuance or modification
of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this
section, or the reasonableness of the length of abatement time fixed in a
citation or modification thereof issued under section 104, or any miner or
representative of miners notifies the Secretary of an intention to contest
the issuance, modification, or termination of any order issued under section
104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with section 554
of title 5, United States Code, but without regard to subsection (a)(3)
of such section), and thereafter shall issue an order, based on findings
of fact, affirming, modifying, or vacating the Secretary's citation, order,
or proposed penalty, or directing other appropriate relief. Such order shall
become final 30 days after its issuance. The rules of procedure prescribed
by the Commission shall provide affected miners or ·representatives of affected
miners an opportunity to participate as parties to hearings under this
section. The Commission shall take whatever action is necessary to expedite
proceedings for hearing appeals of orders issued under section 104."
2021

and Health .Act of 1977, 30 u.s.c. § 815(d) (1978) (1977 Mine .Act) • .Applicant
seeks review of .Order of Withdrawal No. 804918 issued at the Robinson Run
No. 95 Mine on April-16,--1979, pursuant to the provisions of section 104(b)
2/ of the 1977 Mine .Act. The application for review states, in part, as
follows:
1. At or about 1400 hours on March 22, 1979, Federal
Coal Mine Inspector, James D. Satterfield (A.R. 0502) representing himself to be a duly authorized representative of
the Secretary of Labor (hereinafter Inspector) issued
Citation No. 0804951 (hereinafter Citation) pursuant to the
provisions contained in Section 104(a) of the .Act to Howard F.
Watson, Safety E$cort, for a condition he allegedly observed
during an "AAA" .inspection (Safety and Health Inspection) in
the Robinson Run No. 95 Mine, Identification No. 46-01318
located in Northern West Virginia. A copy of this Citation
is attached hereto as Exhibit "A" in accordance with 29 C.F.R.
Section 2700.2l(b).
2. Therein Inspector Satterfield cited Consol for a
violation of 30 C.F.R. § 75.1403 and alleged under--tlie-heading
captioned "Condition or Practice" the following:
"Mud and water had accumulated in and along the load
track near the Robinson Run Portal from No. 35 to No. 50
Block. The flanges on the wheels of the rolling stock were
throwing mud and water on the rails, making them wet and
slick."
3. Inspector Satterfield directed that the condition
be abated by 0800 hours on March 30, 1979.
4. Inspectors Satterfield and Allen issued three extensions of time permitted for abatement on March 30, 1979,
April 5, 1979, and April 12, 1979. Copies of the extensions
are attached hereto as Exhibits "B", "C" and "D" respectively.*

J:./

Section 104(b) provides:
"If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a) has not been totally abated within
the period of time as originally fixed therein or as subsequently extended,
and (2) that the period of time for the abatement should not be further
extended, he shall determine the extent of the area affected by the violation
and shall promptly issue an order requiring the operator of such mine or his
agent to immediately cause all persons, except those persons referred to in
subsection (c), to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary determines
that ~uch violation has been abated."

2022

5. At or about 0905 hours on April 16, 1979, Inspector
Bretzel W• Allen issued a Section 104(b) Order identified as
No. 0804911f to-Ho;~r-d- F. Watson, Safety Escort. He determined
that the alleged violation described in the above-mentioned
citation had not been totally abated within the period of time
as originally fixed therein and that the period of time for
abatement should not be further extended. Inspector Allen
stated:
Although some work had been done to correct the condition, mud (mine refuse) still was present in the clearance space from 7 to 26 inches deep and the mine cars had
been dragging in it and at 3 locations between the rails
between number 35 and 50 blocks, in the loaded track entry.
He further demanded that all persons except those referred
to in Section 104(c) be withdrawn from "The loaded track entry
between 35 and 50 blocks." The Order hereinabove described is
the subject of this Application, and a copy thereof is attached
hereto as Exhibit "E".
6. At or about 0100 hours on April 17, 1979, Inspector
Allen issued a termination of said Order. A copy of this
termination is attached hereto as Exhibit "F".*
7. Consol avers that the Order is invalid and void, and
in support of its position states:

*

(a)

That the conditions and practices described in the
Order are inaccurate;

(b)

That no violation of mandatory health or safety
standard 30 c.F.R. § 75.1403 occurred, as alleged;

(c)

That the Order was not issued pursuant to the same
condition described in the Citation.

(d)

That Consol had made a good faith effort to abate
the described conditions or practices within the
prescribed time period; and

(e)

That it was unreasonable for the Inspector not to
further extend the time for abatement and that said
failure was an arbitrary and capricious act without
basis in fact and without regard to ttie prevailing
standards for the issuance of Section 104(b) Orders.

*

*

*

*

*

*

WHEREFORE, Consol respectfully requests that its Application for Review be granted and for all of the above and other

2023

gopd reason, Consol additionally requests that the subject
Order be vacated or set aside and that all actions taken or to
be taken with-respect thereto or in consequence thereof be
declared null, void and of no effect.
In a footnote to paragraph 4 of the application for review, Applicant
states the following:
The extension of March 30, 1979, stated: "Additional time
was granted to remove the mud and water from the load track,
from 35 to 50 blocks, because the mine was idle 2 shifts due
to a work stoppage." [SEE: Exhibit "B"]
The extension of April 5, 1979, stated: "Part of the
water has been removed from the loaded track entry between
numbers 35 and 50 blocks. Additional time is needed to
complete the cleaning of the entry." [SEE: Exhibit "C"]
The extension of April 12, 1979, stated: "A drain
ditch has been dug from number 35 to 50 block to drain the
water from the track haulage entry. Additional- -t-ime is
needed to complete the cleaning of the entry." [SEE: Exhibit "D"]
-In a footnote to paragraph 6 of the application for review, Applicant
states the following: "The termination stated: 'The (mine refuse) mud was
loaded into mine cars and removed from the loaded track entry between
number 35 and 50 blocks.'"
-The United Mine Workers of America (UMWA) and the Mine Safety and
Health Administration (MSHA) filed answers on May 14, 1979, and May 25,
1979, respectively.
Pursuant to a notice of hearing issued on August 22, 1979, the first
portion of the hearing was held on September 20, and September 21, 1979, in
Washington, Pennsylvania. Representatives of MSHA and Applicant were present
and participated. No one appeared to represent the UMWA (Tr. 4-6). 1/

,-

r.

During the hearing on September 21, 1979, it was noticed that the
safeguard notice introduced into evidence by MSHA (Exh. M-4) was denominated
1 WSH, January 15, 1973, 30 C.F.R. § 75.1403 and that the safeguard notice
referred to in the 104(a) citation underlying the subject order of withdrawal was denominated 2 WHB, January 15, 1973. Counsel for MSHA r~quested
a continuance to permit the presentation of evidence to resolve the apparent
ambiguity. The motion was granted.
3/ During the hearing on September 20, 1979, Applicant moved to dismiss
the UMWA as a party to the proceeding (Tr. 6-7). An order granting Applicant's motion was issued immediately prior to the issuance of the decision
in this case. Accordingly, the decision's caption reflects only the
remaining parties.

2024

On October 1, 1979, an order was issued continuing the hearing to
reconvene on November 1, 1979, and, on October 10, 1979, a notice was issued
designating a facirity--iri the-Somerset County Courthouse as the hearing site.
On October 22, 1979, MSHA filed a motion for the issuance of two subpoenas
duces tecum to require the production of documents at the November 1, 1979,
hearing. Since the time permitted for filing a statement in opposition to
the motion, 29 C.F.R. § 2700.8(b) and 2700.lO(b) (1979), extended beyond
November 1, 1979, telephone conferences were conducted on October 23, and
25, 1979, during which the undersigned Administrative Law Judge and representatives of the parties participated. Counsel for Applicant indicated
that he would exercise .his right to file a response to the motion but that
his response would not be forthcoming until after November 1, 1979. Additionally, counsel for MSHA stated that he would request the hearing site
be changed to Morgantown, West Virginia due to the ill health of an MSHA
witness. The parties were unable to reach agreement on this point. In
view of these considerations, an order was issued on October 26, 1979, cancelling the hearing and continuing the proceeding indefinitely.

Applicant filed its statement in opposition to MSHA's motion on
November 1, 1979, and an order was issued on November 8, 1979, granting
MSHA's motion for the issuance of subpoenas.
On November 19, 1979, MSHA formally requested a change of the hearing
site, and no statement in opposition thereto was filed by Applicant. Accordingly, on December 18, 1979, an order was issued granting MSHA's request.
Additionally, the order contained an amended notice of hearing scheduling
the continued hearing to reconvene on January 29, 1980, in Morgantown,
West Virginia. Subsequent thereto, an amended notice was issued changing
the hearing date. to January 28, 1980 •

.

The continued hearing reconvened as scheduled with representatives of
MSHA and Applicant present and participating. No one appeared to represent
the UMWA. A schedule for the submission of posthearing briefs was agreed
upon following the presentation of the evidence, but difficulties experienced
by counsel necessitated a revision thereof. MSHA submitted its posthearing ·
brief on April 17, 1980. Neither Applicant nor the UMWA f-iled posthearing
briefs.

II.

Witnesses and Exhibits
A.

Witnesses

MSHA called as its witnesses James D. Satterfield and Bretzel w. Allen,
MSHA inspectors; Nelson Starcher, chairman of the union safety committee at
the Robinson Run No. 95 Mine; Neta Matthey, a secretary in MSHA's Clarksburg
office; and Crystal Sharp, a supervisory clerk-typist ·in MSHA's Morgantown
office.
Applicant called as its witnesses Richard Rieger, general superintendent
of the Robinson Run No. 95 Mine; Donald Glover, shift safety inspector at the

2025

Robinson Run No. 95 Mine; and Howard Watson, a safety inspector at the Robinsort Run No. 95 Mine.
Both Applicant and MSHA called Carl Trickett, safety supervisor at
the Robinson Run No. 95 Mine, as a witness.
B.

Exhibits

1.

MSHA intr_oduced the following exhibits into evidence:

M-1 is a copy of Citation No. 804951, March 22, 1979, 30 c.F.R. § 7.1403.
·M-3 is a copy of subsequent action No. 804951-1 issued on March 30,
1979, extending the time for abatement to 4:00 p.m., April 3, 1979.
M-4 is a copy of notice to provide safeguards No. 1-WSH~ January 15,
1973, 30 C.F.R. § 75.1403.
M-5 is a copy of subsequent action No. 804951-2 issued on April 5,
1979, extending the time for abatement to 8:00 a.m., April.12, 1979.
- -~

--·

M-6 is a copy of subsequent action No. 804951-3 issued on April 12,
1979, extending the time for abatement to 8:00 a.m., April 16, 1979.
M-7 is a copy of Order of Withdrawal No. 804918, April 16, 1979,
30 C.F.R. § 7S.1403.
M-8 is a copy of the termination of M-7.
M-9 is a copy of M-4 placed in evidence to demonstrate that
Applicant had in its possession notice to provide safeguards No. 1-WSH,
January 15, 1973, 30 C.F.R. § 75.1403.
M-10 is a copy of a document in Inspector Satterfield's possession
on March 22, 1979, listing ~otices to provide safeguards issued at the
Robinson Run No. 95 Mine.
M-11 is a copy of a three page document pertaining to a request for
documents from the Federal Records Center.
2.

Applicant introduced the following exhibits into evidence !!._/:

!!._/

Exhibits 0-5 and 0-6 are copies of notices to provide safeguards issued
to the Robinson Run No. 95 Mine on October 1, 1979. The exhibits were ruled
irrelevant and immaterial to the issues presented herein and, accordingly,
were not received in evidence. Both exhibits have been placed in a separate
envelope to be retained with the official record in this case in the event
of appellate review (See Tr. 507-512).

2026

0-1 is a general mine map of the Robinson Run No. 95 Mine.
0-2 is a blow~up dEawi-ng-showing the area of the Robinson Run No. 95
Mine cited in M-1.
0-3 is a photograph of a track cleaning machine with the gathering
arms closed.
0-4 is a photograph of the machine depicted in 0-3 with the gathering
arms open.
III.

Issues

A. Whether Citation No. 80495l's misdescription of the underlying
safeguard notice (Exh. M-4) deprived Applicant of legally adequate notice
of the violation charged.
B. If the misdescription did not deprive Applicant of legally adequate
notice of the violation charged, then whether the condition cited in Citation No. 804951, March 22, 1979, constitutes a violation of the safeguard
notice in that there was excess water on the track haulage ~oad.

c. If the condition cited in Citation No. 804951 constitutes a violation of the safeguard notice, then whether the condition as to excess water
on the track haulage road had been abated when Order No. 804918 was issued
on April 16, 1979.
D. If the condition cited in Citation No. 804951 constitutes a violation of the safeguard notice which had not been abated when Order No.· 804918
was i~sued on April 16, 1979, then whether Inspector Allen acted unreasonably
in failing to further extend the time period for abatement.
IV.

Opinion and Findings of Fact
A.

Stipulations

1.

Applicant owns and operates the Robinson Run No. 95 Mine (Tr. 19-20).

2. The Robinson Run No. 95 Mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, Pub. L. No. 91-173, as amended by
Pub. L. No. 95-164, 30 u.s.c. § 801 et seq~ (Tr. 19-20).
3. The Administrative Law Judge has jurisdiction over this proceeding
pursuant to section 105(d) of the 1977 Mine Act (Tr. 19-20).
4. The subject safeguard, notice, order, and any· extensions and/or
terminations thereof, were properly served by a duly authorized representative
of the Secretary of Labor upon an agent of Applicant at the dates,.times, and
places stated therein, and may be admitted into evidence for the purpose of
establishing their issuance and not for the truthfulness or relevancy of any
statements asserted therein (Tr. 20).

2027

.5. -On April 16, 1979, the Robinson Run No. 95 Mine had only one track
cleaning machine of the !Y~~ shown in Applicant's Exhibits 0-3 and 0-4
(Tr. 25).
-- --- .

B.

The Condition of the Loaded Track Entry

On March 22, 1979, Federal mine inspector James D. Satterfield issued
104(a) Citation No. 804951 at Applicant's Robinson Run.No. 95 Mine addressing
alleged accumulations of mud and water existing in the loaded track entry
from No. 35 block to No. 50 block. (Exh. M-1). The cited section of track
haulage road was approximately 1,500 feet in length and was located approximately 3,500 feet from the mine portal (Tr. 31-32). Three subsequent actions
were issued by Inspector Satterfield and Federal mine inspector Bretzel W.
Allen between March 30, 1979, and April 12, 1979, which ultimately extended
the-time period for abatement to 8 a.m., April 16, 1979. (Exhs. M-3, M-5,
M-6). The subject 104(b) order of withdrawal, Order No• 804918 (Exh. M-7),
was issued by Inspector Allen at 9:05 a.m., April 16, 1979, after he came
to the conclusion that the conditions described in Citation No. 804951
had not been abated and that the time period for abatement should not be
further extended. Abatement was accomplished by 9 or 10 p.m. that evening,
and the order was subsequently terminated. (Exh. M-8) ;~-The circumstances
surrounding the issuance of the citation, extensions and order are set
forth in detail in the following paragraphs.

Shortly after Inspector Satterfield began his tour of duty as a
resident inspector at the Robinson Run No. 95 Mine in January, 1979, a
meeting was held with top management officials to discuss the condition of
the haulage tracks. In addition to Inspector Satterfield, Nelson Sta_rcher,
walkaround representative of the miners and chairman of the union safety
committee; Tony Germondo, the general superintendent at the time; Carl
Trickett, the safety supervisor; Willard Starcher and Jimmy Germondo were
present and participated. Inspector Satterfield apprised mine management that
the haulage tracks were in very bad condition. Specifically, discussions were
held as relates to mud and water in and along the load tracks. As a result
of these discussions, the inspector received a verbal commitment from mine
management to assign an adequate number of people per shift to rehabilitate
the track. The rehabilitation work envisioned alleviation of the drainage
problems, removal of the mud and any other debris from along the track,
raising the tracks and tightening the loose joint~ in the rails. A total
of eight employees per shift were to be assigned to the project, with four
employees assigned to drainage and four employees assigned to jacking and
leveling the track and performing the other necessary maintenance work.
In addition to the first meeting, two or three additional meetings were held.
The section of the loaded track entry from No. 35. to No. 50 block was
on a grade ascending toward the portal. Most of the 1,500-foot section was
characterized by a 6-percent grade with the exception of one level area
in the vicinity of No. 48 block. The ribs in the cited haulage entry were
curved, a characteristic attributable to the fact that the entry had been
cut with a boring type mining machine. Inspector Satterfield testified
that the entry was probably 12-1/2 to 13 feet wide at the widest part

2028

of the curvature and approximately 12 feet wide on the bottom (Tr. 51).
Inspector Satterfield did not provide a precise figure as relates to the
clearance between l:ne ·1ddes or the mine cars and the ribs, but testified
that Applicant was in compliance with the minimum clearance criteria,
i.e., 12 inches on the tight side and 24 inches on the walkway side with a
possible maximum of approximately 4 feet in places. 5/ C.Onsidering the
type of rails used in the Robinson Run No. 95 Mine, it is approximately
8 inches from the railroad ties to the top of the rail. The best available
evidence reveals that the flanges on the mine car wheels extend approximately one inch below the top of the rail.
The evidence presented reveals that Inspector Satterfield made the
observations prompting the issuance of Citation No. 804951 on March 22,
1979, while riding to the surface on a type of personnel carrier known as
a jeep traveling at a rate of speed estimated at between 5 and 10 miles
per hour. The vehicle in which the inspector was riding was following
approximately 500 feet behind another vehicle which was also heading toward
the surface. The inspector testified that from his vantage point on the
personnel carrier, looking down the mine floor to the rails, he was
definitely able to observe water and mud along the track. He testified
that the entire 1,500 feet of rail between Nos. 35 and ~O blocK was wet
and muddy and expressed the opinion that the condition had to have been
caused by the wheel flanges of the other vehicle depositing mud and water
atop the rails. Inspector Satterfield testified that he had wal~ed through
the area on prior occasions and that the last time he had stopped and
observed the area between Nos. 35 and 50 block was around the first week
in March, 1979. He testified that he decided to issue the citation because
the area was getting progressively worse. The citation was issued at 4 p.m.,
Thursday, March 22, 1979, after arriving on the surface, and states that
"[m]ud and water had accumulated in and along the load track near the
Robinson Run Portal from No. 35 to No. 50 block. The flanges on.the wheels
of the rolling stock were throwing mud and water on the rails, making them
wet and slick" (Exh. M-1).
Both the language of the citation and Inspector Satterfield's testimony
reveal that the citation addresses itself solely to hazards posed to track
mounted equipment as a result of wet or slick rails, an interpretation confirmed by the testimony of the other witnesses. The testimony of Inspectors
Satterfield and Allen is rejected as unpers~asive to the extent it seeks to
impose a broader interpretation. ~/
5/

It is understood that these figures are derived from 30 C.F.R.

§ 75.1403-B(b) and (c), which set forth criteria for other safeguards.
6/ Inspector Satterfield's testimony reveals two additional hazards posed to
track mounted equipment by water saturated mine bottom'in that: (1) track
mounted equipment using the rails would have a tendency to cause the track
to sink farther into the bottom and work loose the fishplates securing the
rails and bolts, and (2) the spikes holding the rails to the ties lose their
holding power when the ties become saturated with water (Tr. 60, 93).
Arguably, elimination of these additional hazards could require the removal
of more water from the entry than would be required to prevent either wet

2029

The citation sets forth 8 a.m., March 30, 1979, as the termination
due date and alleges a violation of mandatory safety standard 30 C.F.R.
§ 75.1403 which ·!:!ie ~vJd.ence reveals is based upon Applicant's failure to
comply with the requirements of Safeguard Notice 1 WSH, erroneously
referred to in the citation as No. 2 WHB, issued on January 15, 1973. The
safeguard notice provides, in part, that "[w]ater was over the main haulage
track at the Nos. 3 and 4 block inby by the drift opening on the loaded
track. All track haulage roads in this mine shall be kept free of excess
water" (Exh. M-4).
The testimony of Inspector Satterfield is at variance with the testimony
of Mr. Trickett as relates to the conditions existing from No. 35 to No. 50
block. The inspector's testimony identifies conditions existing in two
distinguishable segments of the entry: the walkway side of the entry and
the area that can be more narrowly identified as the area in and along the
rails. As relates to the former, the inspector testified that accumulations
varying from approximately six inches to approximately two feet in depth 7/
were present at various locations along the walkway side and that such
accumulations represented both material cleaned from under the track in
connection with the blocking of various sections and mud that had been
cleaned from the sumps. The walkway was not as wet as th~.area between
the rails because the actual track was lower than the walkway.

Fn. 6 (continued)
or slick rails per se or the clogging of the equipment's sanding devices.
If the citation can be construed as encompassing these additional hazards,
then it materially affects the determination as to how much water had to
be re111oved from the cited portion of the loaded track entry in order ·to
abate the citation. For the reasons set forth below, I conclude that
the citation cannot be so construed.
A mine operator cited for an alleged violation of the 1977 Mine Act or
the mandatory safety standards is accorded adequate notice if the condition
or practice is described with sufficient specificity to permit abatement
and to allow adequate preparations for any potential hearing on the matter.
Jim Walters Resources, Inc., 1 FMSHRC 1827, 1979 OSHD par. 24,046 (1979);
Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975 OSHD par. 19,723
(1975); Eastern Associated Coal Corporation, 1 IBMA 233, 79 I.D. 723, 19711973 OSHD par. 15,388 (1972). In determining whether adequate notice has
been given, the inquiry need not be confined to the four corners of the
citati~.
It is appropriate to consider other oral and written communications gi~n to the operator. Jim Walters Resources, Inc., supra.
The citation, on its face, does not address itself to these additional
hazards and there is no indication that either Inspector Satterfield or
Inspector Allen ever expressly informed Applicant's agents that such hazards
were, in fact, covered. Accordingly, the citation cannot be interpreted
as encompassing these additional hazards.
7/ The inspector testified that he did not measure the depth of the water
and mud on March 22, 1979. All estimates are based on visual observations
made from the moving jeep (Tr. 69).

2030

As relates to the actual track, the inspector testified that the mud
and water did not;___ex~~I1d _fr.om rib to rib, but that it definitely entailed
the 6-foot width of the railroad ties. He provided a general description
of the existing conditions at one point in his testimony by stating that
the balls of the rails were level with the mine floor, but subsequently
clarified the statement by asserting that for a distance of 1,000 feet
only the balls of the rails were visible above the mud and water. However,
he expressed the opinion that the flanges on the mine car wheels could
actually touch mud for the entire 1,500-foot distance. Even the sections
of blocked track were wet. In many areas, no clear cut distinction could
be drawn between free· flowing water and mud because what actually existed
in those areas was a mixture having the consistency of a "slime-like gravy."

Inspector Satterfield testified that water paralleled the rails continuously, but was unable to establish the existence of any locations where
water actually covered the track on March 22, 1979. His testimony reveals
seven or eight swag areas where water from overflowing sumps would collect
on occasion and sometimes cover the track in those areas.
Carl Trickett, the safety supervisor at the Robinson Run No. 95 Mine,
walked along the track approximately 24 hours after the~fssuance of the
citation and observed the existing conditions. 8/ He testified that
he did not necessarily disagree with the basic information set forth in
the citation, but testified that the entire area from No. 35 to No. 50
block was not in such condition that either the wheels or wheel flanges
would deposit mud or water on the rails. He testified that he observed
approximately three swag areas totaling approximately 75 or 100 feet in
length where the wheel flanges could have picked up mud and/or water _and
depo~ited it on the track.
At one point he testified that he did not
observe any areas at the time where the water was actually over the rails,
but subsequently testified that it covered the track in some areas.
I am inclined to accept the inspector's characterization of the conditions existing in the subject section of the loaded track entry because
on March 22, 1979, he actually observed wet and muddy rails while following
the other vehicle out of the mine. Yi.r. Trickett was not afforded the
opportunity to make a similar observation because he did not observe any
trips going through the area. To a certain extent, it app~ars that Mr.
Trickett's evaluation of the extent of the conditions was based upon the
presence of drag marks in the pavement. It is significant to note that
in many areas no clear differentiation could be drawn between free flowing
water and mud because the material in those areas had the consistency of
"slime-like gravy." Under.such conditions it is highly conceivable that
drag marks would not be present in such areas even though the rolling
stock actually achieved contact with the accumulations.
8/ Although some abatement work had been performed when Mr. Trickett conducted his inspection (Tr. 234), I find it improbable that the conditions
were materially different than on March 22, 1979. This determination is
based upon the testimony describing the extensive efforts necessary to
eliminate the conditions cited in the citation.

2031

On_ Friday, March 30, 1979, Inspector Satterfield returned to the mine
and extended the time period for abatement to 4 p.m., April 3, 1979.
The extension was granteal>ecause the mine had been idled for two shifts
due to an unauthorized work stoppage (Exh. M-3). Subsequent to the issuance
of the extension, Inspector Satterfield was hospitalized. Accordingly, the
issuance of the March 30, 1979, extension ended his personal involvement
in the activities surrounding the issuance of the withdrawal order.
On Thursday, April 5, 1979, Inspector Allen extended the tim~ period
for abatement to 8:00 a.m., April 12, 1979, citing the .following justification therefor: "Part of the water has been removed from the loaded track
entry between numbers 35 and 50 blocks. Additional time is needed to
complete the cleaning of the entry" (Exh. M-5).
On Thursday, April 12, 1979, after walking the entire distance between
No. 35 and No. 50 block, Inspector Allen extended the time period for abatement to 8 a.m., April 16, 1979, citing the following justifications
therefor: "A drain ditch has been dug from number 35 to number 50 block
to drain the water from the track haulage entry. Additional time is needed
to complete the cleaning of the entry" (Exh. M-6). The inspector described
the entry as "fairly wet," yet he found only three 1-oeatio-ns where, in his
opinion, the wheel flanges could deposit water on the rails. Additionally,
he testified that water covered the track for a distance of approximately
ten feet in one area. 9/ Mud or mine refuse extended the entire distance
from No. 35 to No. 50 block on the clearance side and a substantial portion,
if not the vast majority, of this material had been placed there by the
miners installing the drain ditch, which had been dug on the tight side
of the entry. The material extracted during the ditch-digging operation
had been deposited between the rails and between the rail and the rib
on the clearance side such that the material was deepest in the vicinity
of the rib. The inspector indicated that all of the mud or mine refuse
would have to be removed from the clearance side, in addition to removal
of the aforementioned water, before he would terminate the citation.

Applicant's witnesses testified that mine management intended to use
the track cleaning machine ov~r the weekend to remove the refuse, but
was prevented from doing so because the machine burned out several motors.
At 9:05 a.m., on Monday, April 16, 1979, Inspector Allen issued 104(b)
Order of Withdrawal No. 804918 in which he stated that: "[a]lthough some
work had been done to correct the condition, mud (mine refuse) still was
present in the clearance space from 7 to 26 inches deep, and the mine cars
had been dragging in it at three locations between the rails between number
35 and 50 blocks, in the loaded track entry" (Exh. M-7).

2._/

The inspector's testimony on this point appears to be at variance with
the testimony of :Messrs. Glover and Watson (Tr. 390-391, 411, 432-433). It
is unnecessary to resolve this credibility issue due to the ultimate outcome
of this C?se.

2032

It appears that on April 16, 1979, no mud was actually in a position to
be placed on the rails by the flanges of the mine car wheels. The mine
refuse mentioned in- trre-braer-of withdrawal appears to refer primarily to
the material which had been placed in the clearance space on the walkway
side of the entry, material that extended the entire distance from No. 35
to No. 50 block. The inspector testified that the mine cars could achieve
contact with this material, drag it onto the track and precipitate a haulage wreck~ However, his testimony reveals that he was, in substantial part,
requiring Applicant to remove the material from the walkway side qecause it
posed a hazard to pedestrian traffic as opposed to hazards posed to trackmounted equipment.
Of greater significance is the absence of standing water on the-rails,
the inspector's inability to recall any water over the rails on April 16,
1979, and his failure to mention the existence of wet or slick rails in the
order of withdrawal.

c.

The Validity of Citation No. 804951

A mine operator contesting the validity of a 104(b) order of withdrawal
is entitled to challenge the existence of the violatiol1 _§_et forth in the
underlying 104(a) citation. United Mine Workers of America v. Andrus,
581 F.2d 888, 894 (D.C. Cir. 1978); Old Ben Coal Company, 6 IBMA 294,
301 n. 3, 83 I.D. 335, 1976-1977 OSHD par. 21,094 (1976). The language of
sections 104(a) and 104(b) of the 1977 Mine Act indicate that the. withdrawal order must be pronounced invalid where the underlying citation fails
to describe a violation of either the 1977 Mine Act or a mandatory safety
standard. In the instant case, the question as to whether a violation of
30 C.F.R. § 75.1403 occurred is governed by the language of the safeguard
notice on which the citation is based.
Issues pertaining to the validity of the underlying 104(a) citation
are set forth in Applicant's motion to dismiss and in the interpretation
given to the safeguard notice.
1.

Applicant's Motion to Dismiss

Citation No. 804951 states that it is based on Safeguard Notice
No. 2 WHB, issued on January 15, 1973. Exhibit M-4, introduced in evidence
as the safeg.uard notice referred to in the citation, bears identification
number 1 w.s.H., January 15, 1973, 30 C.F.R. § 75:1403. During the hearing,
Applicant cited this discrepancy as the basis for a motion to dismiss and
advanced two arguments in support thereof. A ruling was held in abeyance.
Applicant's first argument asserts that MSHA introduced the wrong
safeguard notice in evidence and, accordingly, failed to prove the correct
underlying safeguard. MSHA's counterargument asserts that the reference
in the citation is a clerical error because Safeguard Notice 1 W.S.H.,
January 15, 1973, 30 C.F.R. § 75•1403 was the only safeguard notice issued
at the Robinson Run No. 95 Mine on January 15, 1973 (MSHA's Posthearing

2033

Brief, pp. 11-12). Applicant's second argument asserts that any clerical
error misdescribing the safeguard notice deprived Applicant of adequate
notice and that tne--citation must stand or fall on the sole basis of the
information appearing therein.
The evidence presented reveals that Exhibit M-4 is the correct safeguard
notice underlying Citation No. 804951. Mr. Carl Tricke-tt, appeared on behalf
of MSHA pursuant to a subpoena duces tecum requiring him to produce "Safeguard
Notice 2 WHB, issued January 15, 1973, if such document exists, and Safeguard
1 WSH of January 15, 1973." In response to the subpoena, Mr. Trickett caused
a sear.ch to be made of Applicant's records. The search produced Safeguard
Notice No. 1 WSH (Exh. M-9) but failed to produce a safeguard notice denominated 2 WHB, issued on January 15, 1973. Additionally, Inspector Satterfield
searched MSHA's records and the search failed to produce a safeguard notice
denominated 2 WHB, issued on January 15, 1973. Furthermore, the entries contained in Exhibit M-10 confirm MSHA's assertion that the citation's reference
to Safeguard Notice No. 2 WHB, issued on January 15, 1973, is, in fact, a
misdescription of Safeguard Notice No. 1 WSH, January 15, 1973, 30 C.F.R.
§ 75.1403.
The remaining question presented in this regard -i-s<whether the misdescription deprived Applicant of adequate notice. I answer this question
in the negative because Applicant has shown no prejudice to the preparation
or presentation of its case resulting from the clerical error. See, Jim
Walters Resources, Inc., 1 FMSHRC 1827, 1979 OSHD par. 24,046 (19'79);~0ld Ben Coal Company, IBMA No. 76-21 (FMSHRC, filed June 2, 1980). It could
be argued that Applicant was prejudiced in its efforts to abate the citation
as a result of the clerical error. The citation would appear to point to the
existence of a safeguard notice requiring the removal of accumulations of
both mud and water from haulage track entries in the Robinson Run No. 95 Mine
whereas th~ actual safeguard notice, as construed in Part IV(C)(2) of this
decision, requires only the removal of water from such areas (Exh. M-4).
Accordingly, it could be argued that the misdescription of the safeguard
notice led Applicant to believe that the mud was in violation of a previously
issued safeguard and that the mud had to be removed in order to avoid the
issuance of a section 104(b) order or withdrawal. However, the evidence presented reveals that at the time of the hearing Applicant maintained records
of safeguard notices issued at the Robinson Run No. 95 Mine during the month
of January 1973. The testimony of Mr. Trickett reveals that no one at mine
mine attempted to locate a safeguard notice denominated 2 WHB, issued on
January 15, 1973, when Citation No. 804951 was issued. Such a search would
have revealed not only the nonexistence of such safeguard notice but also
the existence of the correct safeguard notice, and the results of such a
search should have prompted Applicant to request the inspector to modify the
citation to delete any reference to mud.
~

,,1

In view of these considerations, Applicant's motion to dismiss will
be denied.

2034

2.

Construction of the Safeguard Notice
____ ,

Safeguard Notice 1 WSH was issued on January 15, 1973, by Federal mine
inspector Walter s. Hennis pursuant to the provisions of 30 C.F.R. § 75.1403
which provides that "[o]ther safeguards adequate, in the judgment of the
authorized representative of the Secretary, to minimize hazards with respect
to transportation of men and materials shall be provided." 30 C.F.R.
§ 75.1403-l(a) provides that:
"Sections 75.1403-2 through 75.1403-11 set
out the criteria by which an authorized representative of the Secretary
will be guided in requiring other safeguards on a mine-bymine basis under
§ 75.1403.
Other safeguards may be required." [Emphasis added.] MSHA
concedes that Safeguard Notice No. 1 WSH, January 15, 1973, 30 C.F.R.
§ 75.1403 was issued pursuant to the guideline set forth in the second
sentence of 30 C.F.R. § 75.1403-l(a) (Tr. 18-19).
The safeguard notice requires only that "all track haulage roads in this
mine shall be kept free of excess water", and contains no reference to mud.
Citation No. 804951, however, cited Applicant for accumulations of both mud
and water in the subject section of the entry. Additionally, the safeguard
notice's statement that "water was over the main haulage track" indicates
that the issuing inspector defined the term "excess water" as referring
to either standing or flowing water.
A question is presented as to whether the safeguard notice can be
construed as encompassing both mud and excess water. For the reasons set
forth below, I answer this question in the negative.
I conclude that a safeguard notice must be strictly construed for two
reasqns. First, 30 C.F.R. § 75.1403 accords substantial power to a Federal
mine inspector in that it authorizes him to write what are, in effect, mandatory safety standards on a mine-by-mine basis to minimize hazard~ with
respect to transportation of men and materials in that mine. Failure to
provide the safeguard within the time specified and the failure to maintain
the safeguard thereafter renders the mine operator susceptible to the issuance
of a withdrawal order and to the assessment of civil penalties. 30 C.F.R.
§ 75.1403-l(b).
In short, the operator must comply with the requirements
of a de facto mandatory safety standard promulgated without the protections
or th-e-opportunity to submit comments afforded in the rule making process
applicable to the promulgation of industry wide mandatory safety standards.
Accordingly, the safeguard notice should be written precisely so that there
will be no question as to the performance required by the operator. ]!}_/
Second, 30 C.F.R. § 75.1403-l(b) requires, in part, that the authorized
representative of the Secretary shall advise the operator in writing "of a
specific safeguard which is required pursuant to § 7 5 •. 1403." [Emphasis added~]
The specificity requirement contained in the guidelines provides an alternative basis for concluding that the safeguard notice must be strictly construed •

.!QI

See also Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket
No. BARB 78-652-P, 1 FMSHRC 1317 (September 4, 1979) (Franklin P. Michels, J.)

2035

In view of these considerations, I conclude that any reference to mud
contained in Cit.itioll-No.--8G4951 must be deemed surplusage insofar as it
forms the basis for a charge that Applicant violated the provisions of the
safeguard notice, and that Applicant was properly cited only for the accumulations of water. 11/ The presence of the aforementioned water on March 22,
1979, was a violation of 30 C.F.R. § 75.1403.
D.

Order of Withdrawal No. 804918

Applicant was clearly in violation of the requirements of the safeguard
notice when the citation was issued on March 22, 1979. On April 16, 1979,
there was no actual violation of the technical requirement of the safeguard
notice because no water was over the rails or could be deposited atop the
rails by the wheels of haulage equipment. However, there was mud in the
clearance area and some mud along the rail which could be deposited onto
the rails. This was not an actual violation because the March 22, 1979,
citation lawfully cited Applicant only for water. The mud condition, however,
was still a danger and all future safeguard notices should refer to mud as
well as water.
However, assuming for pur~oses of argument that a-~iolation still existed
when the April 16, 1979, order was issued, the evidence presented establishes
that Inspector Allen acted unreasonably by failing to further extend the time
period for abatement in view of the short amount of time required to complete
the work that day and in view of the fact that he had seen fit to grant other
more lengthy extensions in the past when conditions were worse.
A well-founded argument could be advanced for the proposition that
Applicant was not acting as rapidly as it should have acted in its abatement
effo~ts at various times between March 22, 1979, and April 16, 1979. Consequently, a Federal mine inspector might have been justified in issuing
an o·rder of withdrawal at an earlier time. It is unnecessary to make such
a determination in the instant case because the scope of appropriate inquiry
is considerably more limited, confined, as it is, to an assessment of the
determinations that a reasonable man, given an inspector's qualifications,
should have made in determining whether the issuance of an order of withdrawal was justified or whether the facts warranted the issuance of another
11/ The Robinson Run No. 95 Mine is located in the Pittsburgh coal seam, a
coal seam having fireclay bottom mud (Tr. 33-34). Inspector Satterfield
testified that mud exists wherever water accompanies such mine bottom in an
attempt to substantiate his belief that mud was encompassed by the safeguard notice. However, he admitted that the safeguard notice contains no
express reference to mud even though it was written for the same mine in
the same coal seam with the same type of bottom as was Citation No. 804951,
and, accordingly, conceded that the safeguard notice dealt "primarily" with
water (Tr. 40-42).
I am unable to accept the inspector's broad interpretation of the safeguard notice because the document makes express reference only to standing
water, a condition that in no way encompasses the existence of mud as a safety
hazard at the time of its issuance.

2036

extension. To this extent, a consideration of past events is appropriate
because it provide.s_v~luable--insight into the type of determinations that the
inspector should have made prior to concluding that a further extension was
unjustified. Facts material to this issue appear in the following paragraphs.
Approximately 1,300 feet of drainage ditch had been dug on the tight
side of the entry by April 5, 1979. The material extracted from the mine
bottom during the ditch-digging operation had not been removed from the
entry. Considering the conditions existing on April 5, 1979, the inspector
testified that a four-man crew could clean approximately 20 to 25 ·feet
per shift and that an eight-man crew could clean approximately 40 to 50
feet per shift (Tr. 175-176). Therefore, it can be deduced that it would
have required between 37.5 and 75 shifts for a four-man crew to clean
the entry and that it would have required between 30 and 37.5 shifts for
an eight-man crew to clean the entry (~, !:.•£•, Tr. 176). It should be
noted that Inspector Allen would have used an eight-man crew to perform
this task, if he had been the foreman (Tr. 175). The inspector also provided testimony as to the possibility of using the loading machine to
expedite the cleaning operation (Tr. 176-178), but the testimony of Respondent's witnesses proves that the use of the loading machine would have
been infeasible (see,!:.•£•, Tr. 247).
The inspector's testimony indicates that when he inspected the area on
April 12, 1979, he determined that no material had been cleaned from the
area since the last extension was issued (Tr. 185-186).
The April 12, 1979,
extension allotted Applicant greater than five but less that six shifts,
excluding the intervening weekend, to complete abatement (Tr. 115), and
the inspector apprised mine management at the time that no further extensions would be given (Tr. 160-161). The extension was granted to permit
Applicant to clean the area over the weekend (Tr. 392). The same day,
mine management scheduled the track cleaning machine to clean the area on
Saturday, April 14, 1979 (Tr. 249). It should be noted that approximately
800 feet of track can be cleaned with the machine in one shift (Tr. 301).
However, Applicant was able to clean only a minimal amount of the track
on April 14, 1979, beca~se the track-cleaning machine burned up several
motors (Tr. 252-255, 335). Difficulties experienced in obtaining replacement parts meant that the machine was not operational when the order was
issued, but steps were being undertaken to assure its prompt repair (Tr. 334336). In fact, a motor had to be borrowed from another mine (Tr. 355).
When Inspector Allen arrived at the mine on April 16, 1979, he was
informed by mine management as to the difficulties experienced with the track
cleaner (Tr. 143144, 190-191, 255-256). He did not direct any inquiries to
mine management to determine the nature and extent of its abatement efforts
since the time of the April 12, 1979, extension (Tr. 157), and did not
inquire as to the steps Applicant proposed to undertake on April 16, 1979,
to abate the condition. Such an inquiry would have revealed Applicant's
decision to use the track cleaner as soon as it was repaired and would
have revealed that a short extension was justified in view of the short
amount of time required to abate the condition using the track cleaner.
In fact, an additional extension was requested by Mr. Richard Rieger, the
general superintendent, and Mr. Donald Glover, the shift safety inspector,

2037

during a meeting held with the inspector after the order was issued. In
requesting this ·extension,-Mr. Rieger informed the inspector that an additional "shift or so" was needed to abate the condition (Tr. 352-353),
while Mr. Glover apprised the inspector that the condition would be abated
within 24 hours with the track cleaner. Instead, the inspector appears
to have simply abandoned all hope that Applicant would abate the condition
absent the issuance of a withdrawal order. He testified that, in his opinion,
it would have been unreasonable to grant an additional extension because
adequate time had already been given in the past, enough time, in his
estimation; to have cleaned the area by hand (Tr. 154, 157-158).
However, the information available to the inspector when the April 12,
1979, extension was issued should have placed him on notice that Applicant
could not be reasonably expected to hand clean the area by 8 a.m.,
April 16, 1979, because, by his own estimate, it would have required
more than the intervening number of shifts to perform the task. The sole
foreseeable methods of meeting the abatement deadline entailed the use of
mechanized equipment only or the use of a combination of mechanized equipment and hand-cleaning crews. Yet, on April 16, 1979, Inspector Allen
never attempted to ascertain the procedures Applicant w~s-actually using
to abate the condition. Such actions cannot be appropriately classified
as those of a reasonable man. The appropriate inquiries would have apprised
the inspector that a short extension was warranted, especially in view of the
lengthy extensions granted in the past when conditions were worse. Accordingly, assuming that a violation existed on April 16, 1979, the order of
withdrawal would have to be vacated based upon a finding that the inspector
acted unreasonably by failing to further extend the time period for abatement for the short period as requested by Applicant.
~n addition thereto, when the order was issued on April 16, 1979, the
condition described in the citation for which Applicant was lawfully cited
had been abated. JJ:../ The flanges of the mine car wheels would not have
deposited water on the rails. Any water remaining in the cited 1,500-foot
section of the loaded track entry posed no hazard of the type described
in the original safeguard notice as relates to the track-mounted equipment
using the rails. For this additional reason, the order of withdrawal would
have to be vacated.

An additional consideration is worthy of mention at this time. The
testimony reveals that the accumulations in the clearance space were more
extensive on April 16, 1979, than on March 22, 1979, because the material
extracted during the installation of the drainage ditch on the tight side
of the entry had been deposited there. Inspector Allen's testimony reveals
that the order of withdrawal addresses, in substantial part, hazards posed
to pedestrian traffic using the walkway as a result of the accumulations
deposited on the clearance side whereas Citation No. 8D4951 addresses only
hazards posed to track mounted equipment. Section 104(b) of the 1977 Mine
Act authorizes the issuance of an order of withdrawal based upon a finding

12/ In view of this finding, it is unneeessary to address Applicant's
claim that the condition had been abated by April 12, 1979 (Tr. 12, 14).

2038

by the authorized representative of the Secretary of Labor "(1) that
a violation described in- a -cHation issued pursuant to [section 104(a)]
has not been totally abated within the time period as originally fixed
therein or as subsequently extended, and (2) that the period of time for
the abatement should not be further extended * * *" (emphasis added). The
emphasized portion of the statute clearly indicates that a 104(b) order
of withdrawal must be based on· the continued existence of the same condition
constituting the violation described in the underlying 104(a) citation. 13/
In substantial part, the mine refuse condition described in the 104(b) ~
order of withdrawal falls within the safeguard notice issuance guideline
set forth in 30 C.F.R. § 75.1403-S(d) which provides that "[t]he c_learance
space on all track haulage roads should be kept free of loose rock, supplies,
and other loose materials," a guideline addressed to securing safe walkways
for pedestrians using the haulage entries of underground coal mines. The
104(a) citation did not address such a problem. Since the condition,termed
"mine refuse" as described in the 104(b) order of withdrawal differs from
the condition termed "mud* * *accumulated in and-along the load track"
as described in the 104(a) citation, the order of withdrawal, if otherwise
valid, would have to be modified to delete any reference to the conditions
in the clearance area posing a hazard to pedestrian traffic. Other proper
procedures should have been carried out by the inspector to deal with that
pro bl em. ]:ii
See also, s. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted in
LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 618
(1978), which states, in part, as follows:
"The Committee believe [sic] that rapid abatement of vioiations is essential for the protection of miners. A violation of a standard which continues
unabated constitutes a potential threat to the health and safety of miners.
Therefore, if the violation is not eliminated by abatement in the specified period of time, the miners should be withdrawn from the area affected
by the violation until the violation is abated. Section 105(b) provides
the Secretary with such authority upon a determination that the violation
has not been totally abated within the original or subsequently extended
abatement period, and that the abatement period should not be further extended."
ands. Rep. No. 95-461, 95th Cong., 1st Sess. (1977), reprinted in LEGISLATIVE
HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at--1326 (1978)
(Conference Report), which states, in part, as follows:
"Section 105(b) (of section 201) of the Senate bill and the House amend
ment, adopting Section 104(b) of the Coal Act, established substantially similar authority for the issuance of "failure to abate" withdrawal orders. In
both versions, the issuance of such orders was to be based on findings
of the Secretary or his authorized representative of the existence of the
same set of circumstances."
14/ The testimony of Inspectors Satterfield and Allen clearly demonstrates
that accumulations of mud which can be deposited atop the rails of haulage
tracks pose serious hazards to miners vis-a-vis track-inounted equipment.
Logically, one can infer from the tenor of-their testimony that such hazards
are well known and that the condition cited by Inspector Satterfield occurs
in other underground mines throughout the coal mining industry. In view of
this, it appears inappropriate to rely on the issuance of safeguard notices
dealing with these hazards on a mine-by-mine basis when a mandatory safety
standard applicable to all underground coal mines in the mining industry
is clearly necessary to deal effectively with these hazards.

QI

2039

v.

Conclusions of Law

1. The Administrative Law Judge has jurisdiction over the subject
matter of, and the parties to, this proceeding.
2. Consolidation Coal Company and its Robinson Run No. 95 Mine have
been subject to the provisions of the 1977 Mine Act at all times relevant
to this proceeding.
3. Federal mine inspectors James D. Satterfield and Bretzel w. Allen
were authorized representatives of the Secretary of Labor at all times
relevant to this proceeding.
4.

Order No. 804918 was improperly issued and is therefore invalid.

5. All of the conclusions of law set forth in Part IV of this decision
are reaffirmed and incorporated herein.
VI.

Proposed Findings of Fact and Conclusions of Law

MSHA submitted a posthearing brief. Applicant did not submit a
posthearing brief. Counsel for both parties set forth on the record various
arguments and statements as to the issues. The brief, arguments and statements as to the issues, insofar as they can be considered to have contained
proposed findings and conclusions, have been considered fully, and except
to the extent that such findings and conclusions have been expressly or
impliedly affirmed in this decision, they are rejected on the ground that
they are, in whole or in part, contrary to the facts and law or beca~se
they ,are immaterial to the decision in this case.
ORDER
A. The prior determination granting Applicant's motion to dismiss
the United Mine Workers of .America as a party to the above-captioned case
is REAFFIRMED.
B. Applicant's motion to dismiss, as set forth in Part IV(C)(l) of
this decision, is DENIED.

c. Based on the findings of fact and conclusions of law set forth
in Parts IV and V of this decision, the application for review is GRANTED
and Order No. 804918 is herewith VACATED.

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Distribution:
-~

'

- --

Karl T. Skrypak, ·Esq., Consolidation Coal Company, Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Marshall H. Harris, Esq., David E. Street, Esq., Office of the Solicitor,
U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Thomas A. Mascolino, Counsel for Litigation, Office of the Solicitor,
U.S. Department -of Labor, 4015 Wilson BOulevard, Arlington, VA 22203
(Certified Mail)
Harrison Combs, Esq., Joyce A. Hanula, Legal Assistant, United Mine
Workers of America, 900 15th Street, NW., Washington, DC 20005
(Certified ?-fail) ·
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Administrator for Metal and Nonmetal Mine Safety and H~aith, U.S.
Department of Labor
Standard Distribution

J;!.U.S. GOVERNMENT PRINTING OFFICE1

2041

1980-311-143/3457