DECEMBER 1979
The following cases were Directed for Review during the month of December:
Secretary of Labor, MSHA. v. Island Creek Coal Co., KENT 79-129;
(Judge Moore, November 29, 1979).
Maben Energy Corp. v. Secretary of Labor, MSHA., WEVA 79-123-R;
(Judge Melick, November 30, 1979).

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

December 6, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
ARNOLD J. SPARKS, JR.
Docket No. WEVA 79-148-D

v.
ALLIED CHEMICAL CORPORATION
DECISION

The decision of the administrative law judge is reversed; his. order
is vacated, and the complaint is dismissed. Helen Mining Co., No. PITT
79-il-P (November 21, 1979). See also Kentland-Elkhorn Coal Corp.,

No. PIKE 78-399 (November 30, 1979(1(/1.,vy,J. ((_~

Jero e R. Waldie, Chairman

t::A--?M~b ·-~

Richard V. Backley, Commissioner f

<

"-\\lli~\lO_tA
\(_q O\~J!ill.M ~
Marian Pearlman Nease, Commissioner
Commissioners Jestrab and Lawson, dissenting:

79-12-1
1947

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

December 10, 1979
MAGMA COPPER COMPANY

v.
Docket No. DENV 78-533-M

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED STEELWORKERS OF AMERICA

DECISION
The question in this case is whether a mine operator is required to
pay only one representative of miners for time spent accompanying an
inspector when the inspection is divided into two or more parties to
simultaneously inspect different parts of a mine. For the reasons that
follow, we find that one miners' representative in each inspection party
must be paid for time spent accompanying an inspector who is engaged in
an inspection of the mine "in its entirety" under 103(a) of the Federal
Mine Safety and Health Act of 1977, 30 U. S.C. §801 et. seq. ["the 1977 Act"].
Magma Copper Company oper~tes a large copper mine complex near San
Manuel, Arizona. The complex includes an underground copper mine and
milling facilities. On July 26, 1978, two inspectors from the Department
of Labor's Mine Safety and Health Administration arrived at the complex
to continue an inspection of the milling facilities that had begun the
previous week under section 103(a) of the 1977 Act. That section requires
that each surface mine be inspected in its entirety at least two times a
year and that each underground mine be inspected in its entirety at least
four times a year.
Magma's milling facilities consist of several buildings and other
structures. The milling operation includes a receiving bin, a crushing
facility, a concentrator building, a molybdenum plant, and a filter
plant. One building is three floors high and a quarter mile long. The
structures in the complex are as much as seven miles apart.
To expedite inspection of the milling facilities, the inspectors
formed two inspection parties to visit different work sites. They told
Magma officials that they would like a miners' representative to accompany
each of them. Magma officials agreed to assign two miners' representatives
to accompany the inspectors but they stated that Magma would pay only
one of them. Only one miners' representative accompanied an inspector.

79-12-3
1948

The other inspector was not accompanied by a miners' representative because
the inspectors were reluctant to ask a miner to accompany them without a
guarantee that he would suffer no loss of pay.
The inspectors examined different milling facilities. Their
activities took them about 6 to 7 miles apart, and consumed several hours.
They did not see each other again until they returned to one of Magma's
offices to perform some post-inspection paperwork.
Because of Magma's refusal to pay two miners' representatives for
time spent accompanying the inspectors, a citation under section 104(a)
of the 1977 Act that alleged a violation of section 103(f) was issued.
When Magma again declined to pay two miners' representatives, one of the
inspectors issued a withdrawal order for failure to abate under section
104(b). The order did not require the withdrawal of any miners from
mining operations. Magma then filed a notice of contest under section
105(d) of both the citation and the withdrawal order.
Administrative Law Judge Lasher conducted a hearing and decided
that because of the language of section 103(f), 1/ only one miners'
representative was entitled to be paid for participating in the inspection.
1/

Section 103(£) of the 1977 Act reads as follows:
[l] Subject to regulations issued by the Secretary, a representative
of the operator and a representative authorized by his miners shall
be given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a), for the
purpose of aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine. [2] Where there
is no authorized mine'r representative, the Secretary or his
authorized representative shall consult with a reasonable
number of miners concerning matters of health and safety in such
mine. [3] Such representative of miners who is an employee of
the operator shall suffer no loss of pay during the period of his
participation in the inspection made under this subsection. [4]
To the extent that the Secretary or authorized representative of
the Secretary determines that more than one representative from
each party would further aid the inspection, he can permit each
party to have an equal number of such additional representatives.
[5] However, only one such representative of miners who is an
employee of the operator shall be entitled to suffer no loss of
pay during the period of such participation under the provisions
of this subsection. [6] Compliance with this subsection shall
not be a jurisdictional prerequisite to the enforcement of any
provision of this Act. [Sentence numbers and emphasis added.]

1949

Specifically, he held:
Where a single regular "entire mine" inspection is
being conducted pursuant to section 103(a) of the
(1977] Act by two or more inspectors, only one
representative of miners is entitled to participate
in the inspection without loss of pay even though
the group conducting the inspection is divided
into two or more parties to simultaneously inspect different parts of the mine.
Judge Lasher believed that this interpretation of the walkaround
pay provision was necessary because section 103(f) provides in part that
"only one such representative of miners who is an employee of the operator
shall be entitled to suffer no loss of pay during the period of such
participation • • • "
He consequently vacated the citation and withdrawal
order. On April 11, 1979, the Commission granted petitions for discretionary
review filed by the Secretary of Labor and the United Steelworkers of
America. On July 31, 1979, we heard oral argument.
We do not think it is enough to rely, as the administrative law
judge did, only upon the literal language of section 103(f). The literal
words of a statute may not be the best guide to the legislative purpose
when they appear to conflict with the congressional purpose for creating
a right or produce a result that is illogical. See Central Hanover
Bank & Trust Co. v. Commissioners 159 F.2d 167, 169 (2d. Cir. 1947)(per
L. Hand, J.); United States v. American Trucking Associations, 310 U.S.
534, 543 (1940). J:.../
'!:_/
In our view, the legislative history does not specifically address the
question before us. Magma.disputes this. It claims that a statement made
by Senator Javits on the Senate floor directly addresses this issue and
authoritatively resolves it in Magma's favor. We disagree.
During the Senate debate on the bill from which the 1977 Act was largely
derived, Senator Helms introduced an amendment to strike out the third and
fifth sentences of what is now section 103(f), and thereby eliminate the
right to walkaround pay. 1977 Legis. Hist. at 809, 812. Senator Javits,
speaking in opposition to the amendment of behalf of the bill's managers, gave
several reasons why the amendment should be defeated. Id. at 1054-1056.
During his lengthy remarks, he commented that the bill required that only
one miners' representative be paid. Id. at 1055-1056. Magma believes that
Senator Javits' comment shows that section 103(f) was designed with multiple
inspection parties in mind. We do not. Although Senator Helms had briefly
mentioned multiple :inspection parties, Senator Javits' extremporaneous reremarks neither bear upon nor mention multiple parties. The Senator seems to
have spoken only to the common and simple situation of one or more inspectors
forming only one inspection party. We therefore conclude that the legislative
history does not speak directly to the issue before us.

1950

The language of section 103(f) conveys the impression that Congress
expected that one inspection party will visit all parts of the mine and
one paid miners' representative will therefore fully participate in the
inspection. The walkaround pay limitation appears designed to minimize
the operator's economic burden by requiring him to pay only one miner
who is in that one inspection party.
However, several inspectors are often sent into large mines to
expedite inspection of the entire mine. l/ Providing walkaround pay
only to one miners' representative when several inspection parties are
inspecting the entire mine would make the right to walkaround pay
dependent on the number of inspectors sent to the mine. We agree with
the Secretary that it is doubtful that Congress intended this illogical
result. This operator has made no showing in this case that the presence
of two inspection parties prejudiced him.
In our view, the Congressional purpose for limiting walkaround pay
would not be frustrated by requiring that one miner in each inspection
party be paid. We share the Secretary's judgment that the cost to an
operator of walkaround pay when two inspection parties are formed should
roughly approximate the cost when only a single party is formed because
the number of hours spent by paid miners' representatives in the inspection
should be about the same in both cases. We also believe that the constructi9n of 103(f) urged by Magma would frustrate the purposes for
which Congress granted a right to walkaround pay. Walkaround pay was
designed to improve the thoroughness of mine inspections and the level
of miner safety consciousness. The first sentence of section 103(f)
expressly states that the purpose of the right to accompany inspectors
is to aid the inspection. The Senate committee report on S. 717, 95th
Cong., 1st Sess. (1977), the bill from which section 103(f) is derived,
explained that the purpose of the right to accompany an inspector is to
assist him in performing a "full" inspection, and "enable miners to
understand the safety and ·health requirements of the Act and [thereby]
enhance miner safety and health awareness." S. Rep. No. 95-181, 95th
Cong., 1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 616-617
(1978) ["1977 Legis. Hist."]. The purpose of the right to walkaround

ll

A report by the National Coal Association and the Bituminous Coal Operators
Association that was submitted to the Labor Standards Subcommittee of the
House Committee on Education and Labor states:
Some coal mines are very large: one mine, for instance, is the
size of the island of Manhattan underground. That mine, along
with many others, employs several hundred miners who work in
separate geographic underground areas at many diverse tasks
under varying degrees of supervision. It is common for miners
to have to travel an hour or more underground just to get to
their work areas from the mine entrance. Thus, a "complete
inspection" of an entire mine can take a very long time.
NCA, BCOA, "Federal Coal Mine Health and Safety Act 1969: A Constructive
Analysis with Recommendations for Improvements", at 30 (1977).

1951

pay granted by section 103(f) is also clear: to encourage miners to
exercise their right to accompany inspectors. Id. !!_/
It was Congress' judgment that a failure to pay miners' representatives
to accompany inspectors would discourage miners from exercising their walkaround rights, and that the resulting lessening of participation would
detract from the thoroughness of the inspection and impair the safety and
health consciousness of miners. If only one of the inspectors would be
assured of receiving the assistance of a miners' representative when
conducting a 103(a) inspection of the mine, only a part of the mine .would
be likely to receive the kind of inspection that Congress expected the
walkaround pay right to help assure. By providing a more efficient
deployment of inspectors through multiple inspection parties, the
Secretary should not be denied the assistance of the miner. Neither
should the miner be denied the right to participate in such inspection
with pay.
!!_/

The Senate committee report states:
Section 104(e)[l03(f) in the final bill] contains a provision based
on that in the Coal Act, requiring that representatives of the
operator and miners be permitted to accompany inspectors in order
to assist in conducting a full inspection ••••• The opportunity
to participate in pre-or post-inspection conferences has also been
provided. Presence of a representative of miners at opening conference helps miners to know what the concerns and focus of the
inspector will be, and attendance at closing conference will
enable miners to be fully apprised of the results of the inspecti6n.
It is the Committee's view that such participation will enable
miners to understand the safety and health requirements of the
Act and will enhance miner safety and health awareness. To
encourage such miner participation, it is the Committee's
intention that the miner who participates in such inspection
and conferences be fully compensated by the operator for time
thus spent. To provide for other than full compensation would
be inconsistent with the purpose of the Act and would unfairly
penalize the miner for assisting the inspector in performing
his duties •.•,.• ••

1952

Accordingly, the judge's decision is reversed, and the citation and
withdrawal order are affirmed.

I' :'"'"~ ~~~

!., (,

Jerome R. Waldie, Chairman

1953

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

December 12, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VINC 74-11
IBMA 75-52

v.
OLD BEN COAL COMPANY

DECISION
This proceeding arises under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. §801 et~· (1976) (amended 1977) ["the
1969 Act"], and involves the inte·rpretation of sections 304(a) and
104(c)(2) of that Act. For the reasons discussed below, we hold that a
violation of section 304(a) occurs when an accumulation of combustible
materials exists in active workings, and that Old Ben tmwarrantably
failed to comply with the standard in this case.
On July 13, 1973, a Mining Enforcement and Safety Administration
(MESA) inspector issued a withdrawal order pursuant to section 104(c)(2)
for an alleged violation of 30 CFR §75.400. That regulation, which is
identical to section 304(a) of the 1969 Act, provides:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings or
on electric equipment therein. 1./
The withdrawal order alleged in part:
Accumulations of loose coal and coal dust were observed from the 8
south belt drive to 20 feet outby the 710 survey mark, a distance
of approximately 925 feet. The accumulations of loose coal and
coal dust ranged in depth of from 2 to 14 inches on the east side
of the belt and from 2 to 6 inches on the west side. 2.:./
The order was terminated on July 16, 1973, after the conditions cited
were abated.

1./

Section 304(a) of the Federal Mine Safety and Health Act of 1977,
30 U. S .C .A. §801 et ~· (1978) ["the 1977 Act"], is identical.
Y The order also stated that "the violation is of such a nature as
could significantly and substantially contribute to the cause and effect
of a mine safety or health hazard, and is caused by an unwarrantable
failure to comply with such standard," and that the cited violation "is
similar to the violation of the mandatory health or safety standard
which resulted in the issuance of Withdrawal Order No. 1 M.C. on October
26, 1972, and no inspection of the mine has been made since such date
which disclosed no similar violation."
79-12-4
1954

Old Ben filed an application for review of the withdrawal order.
In his decision .of March 19, 1975, Administrative Law Judge Rampton
vacated the order. He held that: (1) MESA failed to prove all of the
elements of a violation of 30 CFR §75.400; (2) the "conditions upon
which the Order is premised were not such as could significantly and
substantially contribute to the cause and effect of a mine safety or
health hazard"; and (3) there was no unwarrantable failure to comply
with the standard. MESA appealed the judge's decision to the Interior
Department's Board of Mine Operations Appeals, contesting all three of
these holdings.
On August 17, 1977, the Board affirmed the judge's decision.
8
IBMA 98. It held that the elements of a violation of 30 CFR §75.400
are: (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." Id. at 114115. It held, as had the judge, that MESA had proven only the first of
these three elements. Therefore, it affirmed the judge's vacation of
the order because MESA had not established the underlying violation.
The Board did not reach the "significant and substantial" or unwarrantable failure issues because "disposition of the first issue obviates the
necessity of reaching the other·.••• issues •••. " Id. at 106-107. The
Board denied MESA's motion for reconsideration. -S--IBMA 196 (1977).

On September 20, 1977, the United Mine Workers of America filed a
petition for review of the Board's decision with the Court of Appeals
for the District of Columbia Circuit (No. 77-1840). On November 9,
1977, Congress passed the 1977 Act. It transferred enforcement functions
from the Secretary of Interior to the Secretary of Labor effective March
9, 1978. The Secretary of Labor then successfully moved to substitute
himself for the Secretary of Interior as respondent, and filed a brief
urging reversal of the Board's decision and remand to the Connnission.
Old Ben did not file a brief. In an order issued on January 16, 1979,
the Court observed that no party supported the Board's decision. Without
deciding the merits, it remanded the case to the Connnission "for further
proceedings."
The issues before us are:
(1)

What are the elements of a violation of 30 CFR §75. 400?

(2)

Did Old Ben violate the standard?

1955

(3) If Old Ben violated the standard, was the violation
"caused by an unwarrantable failure" to comply with such standard?
(4) If Old Ben violated the standard, is a finding that the
violation was "of such a nature as could significantly and substantially contribute to the cause or effect of a mine safety or
health hazard" required to issue a withdrawal order under section
104(c)(2) of the 1969 Act?
The elements of a violation of 30 CFR §75.400
The Board coli.eluded that the standard was intended "to minimize,
rather than eliminate, accumulations of combustible materials so that
they would simply be less likely to present a safety hazard source." 8
IBMA at 108-109. The "presence or existence of an accumulation of
combustible materials in active workings is [not] sufficient by itself,
to establish a violation," because "the crux of the violation" is the
operator's "failure to clean up, or undertake to clean up, an accumulation
of combustible material which is already in existence." Id. at 112.
The Board held, therefore, that there were three elements necessary to
prove a violation of 30 CFR §75.400: (1) an accumulation of combustible
materials; (2) the operator's actual or constructive knowledge of the
accumulations; and (3) the operator's failure to undertake cleanup
within a reasonable time. Id. at 114-115.
In applying the standard it had fashioned to the facts of this
case, the Board concluded that:
[t]he evidence ••• conclusively established that although most of
the combustible materials did exist in the subject mine as alleged
in the order ••• , as soon as the operator became aware of the cited
conditions, enough employees were promptly dispatched to abate the
conditions within a reasonable time. The evidence further clearly
established that the operator was following a regular procedure
reasonably calculated to alert its personnel to the hazards posed
by accumulations of combustible materials. Consequently, there was
no permitting of an accumulation by the operator and no violation
of the subject standard. [Id. at 119.]
We disagree with the Board's interpretation of the standard. The
language of the standard, its legislative history, and the general
purposes of the Act all point to a holding that the standard is violated
when an accumulation of combustible materials exists.
One of the primary purposes of Congress in passing the Act was to
prevent the loss of life and serious injuries arising from explosions
and fires in underground mines. A precipitating factor in consideration
and passage of the 1969 Act was the tragic mine explosion at Farmington,
West Virginia on November 20, 1968, that killed 78 miners. 1./ Congress
3/
S. Rep. 91-411, 9lst Cong., 1st Sess., 6-7, 8 (1969), and H. Rep.
91-563, 91st Cong., 1st Sess., 1-2, 6 (1969), reprinted in Senate Subco'l'iiffiittee on Labor, Committee on Labor and Public Welfare, 94th Cong.,
1st Sess., Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, Part I, at 132-133, 134, 1031-1032, 1036 (1975)
[ "Legis. Hist."].
1956

recognized that "ignitions and explosions have been among the major
causes of death ·and injury to coal miners."!±_/ To achieve its goal,
Congress included in the Act mandatory standards aimed at eliminating
ignition and fuel sources for explosions and fires. Section 304(a) is
one of those standards.
Section 304(a) of the 1969 Act adopted the language of section
304(a) of R.R. 13950. 2../ The House Report stated that the standard
requires that coal dust, float coal dust, loose coal, and other
materials be cleaned up so that it will not accumulate in active
underground workings or on electric equipment. [H. Rep. 91-563,
91st Cong., 1st Sess., 65; Legis. Hist. at 1077 (emphasis added).]
The Conference Committee agreed to the language in the House bill. H. Rep.
91-761, 91st Cong., 1st Sess., 32 (1969); Legis. Hist. at 1476,
The
legislative history demonstrates Congress' intention to prevent, not
merely to minimize, accumulations. The standard was directed at preventing accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated. §.../
The language of section 304(a) also furnishes no support for the
Board's view that accumulations of combustible materials may be tolerated
for a "reasonable time." Rather, the language of the standard makes
accumulations impermissible. Even if, however, the Board's interpretation were arguably consistent with the language of the standard, it was
hardly compelled by it. Inasmuch as our interpretation of section 304(a)
is also consistent with its language, and would further the congressional
purpose of preventing coal mine explosions and fires, we adopt it here.
"Should a conflict develop between a statutory interpretation that would
4/
S. Rep. 91-411, 25; Legi~. Hist. at 151.
5/
R.R. 13950, 91st Cong., 1st Sess., 70-71 (1969); Legis. Hist. at
983-984.
!!_./ The forerunner of the House language for section 304(a), as adopted,
was section 205(a) of S. 2917, which provided in part:
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall not be
permitted to accumulate in active underground workings or on
electric equipment therein. S. 2917, 91st Cong., 1st Sess., 47
(1969); Legis. Hist. at 49.
The Senate Report stated:
Tests, as well as experience, have proved that inadequately inerted
coal dust, float coal dust, loose coal, or any combustible material
when placed in suspension will enter into and propagate an explosion.
The presence of such coal dust and loose coal must be kept to a
minimum through a regular program of cleaning up such dust and
coal. S. Rep. 91-411, 65; Legis. Hist. at 191.(emphasis added).
The report does not state, as the Board apparently read it, that
"accumulations ••• must be kept to a minimum •••• " Fairly read, this
language can be interpreted to mean that if the presence of loose coal
and coal dust is kept to a minimum, accumulations will not occur.

1957

promote safety and an interpretation that would serve another purpose
at a possible. compromise to safety the first should be preferred." UMWA
v. Kleppe, 562 F.2d 1260, 1265 (D.C. Cir. 1977).
We hold that a violation of section 304(a) and 30 CFR §75.400
occurs when an accumulation of combustible materials exists. !J
Did Old Ben violate the standard in this case?
We accept that some spillage of combustible materials may be inevitable in mining operations. Whether a spillage constitutes an accumulation
under the standard is a question, at least in part, of size and amount.
There is no doubt, however, that an accumulation of combustible materials
was present here. The Board found that "most of the combustible materials
did exist in the ••• mine as alleged in the order •••• " 8 IBMA at 119.
Indeed, the Board noted that "witnesses for the operator did not dispute
the testimony of the inspector pertaining to the existence of accumulations
of loose coal and coal dust along the 8 south beltline for a distance of
approximately 925 feet." 8 IBMA at 116 (emphasis in original). We need
not precisely define an accumulation in this case, for we agree with the
Board's finding that here the vast spillage cited by the inspector
clearly constituted an accumulation. ~/ Therefore, we conclude that Old
Ben violated 30 CFR §75.400.
Was the violation "caused by an unwarrantable
failure to comply with such standard"?
The judge held that there was no unwarrantable failure by Old Ben
to comply with a mandatory standard. In Zeigler Coal Co., 6 IBMA 182
(1976), the Board stated that."a section 104(c)(2) order must ••• be
based on a violation of a·mandatory health or safety standard caused by
an operator's unwarrantable failure to comply" with the standard. 6
IBMA at 190. 2_! We need not examine this question here, for we hold
that the judge erred and that the violation was caused by an unwarrantable failure to comply.
7/

The matters referred to in the second and third elements of the

B~ard's interpretation are, we believe, appropriately considered in

determining an appropriate penalty, not in determining whether a violation
of this standard occurred •
.!})
We note that the Secretary does not contend "that the merest deposit
of combustible material constitutes a violation of the standard."
J./ As we have noted, the judge held that Old Ben had not violated 30
CFR §75.400. His additional holding of no unwarrantable failure was
apparently made to provide an alternative basis for vacating the withdrawal order. Although the Board did not reach this issue, it did
accept the judge's findings on this issue when it discussed its third
element of proof for establishing a violation of the standard. 8 IBMA
at 118, 119.

1958

The judge found that the accumulations had occurred mostly during
the latter part. of the previous shift; that the operator "could not
reasonably have been expected to know of the presence of the materials
until the beginning of the second shift, when the second-shift mine
manager should review the midnight shift examiner's report (based on
inspections between 4: 00 a. m. and 7: 00 a. m.) ••• "; 10' and that the
operator "first gained actual knowledge of the materials when the mine
manager and [section foreman] reviewed the mine examiner's report arid
when [the section foreman] walked the belt when he arrived at the
section shortly before the inspection began." The judge concluded that
there was no unwarrantable failure to comply with the standard "because
as soon as the operator became aware of the cited conditions enough
employees were promptly assigned to abate the conditions within a
reasonable time," and because Old Ben "was following established procedures reasonably calculated to alert [it] to hazardous conditions
within a reasonable period of time."
We disagree with the judge's conclusion. He found as a fact that
the accumulations were reported in the midnight shift examiner's report,
made between 4 a.m. and 7 a.m. Sections 303(d)(l) and 303(e) of the Act
required the examination made by the midnight shift examiner. Such
examinations must be made by "certified persons designated by the
operator." Section 303(e) required in addition that any "hazardous
conditions ..• shall be corrected immediately." We impute to Old Ben
the midnight shift examiner's knowledge that the accumulations existed
sometime during the midnight shift. Cf. Pocahontas Fuel Company v.
Andrus, 590 F.2d 95 (4th Cir. 1979). Compliance did not begin, however,
until after the 8 a.m. shift began. Thus, contrary to the judge's
holding, the operator did not promptly begin to eliminate the conditions
"as soon as [he] became aware of the cited conditions." This constituted
an unwarrantable failure on the part of Old Ben under the facts of this
case. 11/
Is a "significant and substantial" finding required
for the issuance of a section 104(c)(2) order?
Finally, the judge concluded, as a third basis for vacating the
order, that the "conditions upon which the Order is premised were not
such as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard." 12/ It is unnecessary
for us to review this conclusion because, after~he judge's decision,
the Board held that a "significant and substantial" finding (see section
104(c)(l)) is not required for the issuance of a withdrawal order under
section 104(c)(2). Zeigler Coal Co., supra, 6 IBMA at 189-190. See
also, UMWA v. Kleppe, supra, 532 F.2d at 1407. We concur in this interpretation of section 104(c)(2). Consequently, the judge's finding that
the "significant and substantial" criterion was not met here was immaterial.
10/ The judge found that the second shift began at 8 a.m.
11/ We need not cons.ider in this case whether the "operator" is chargeable
with knowledge, if any, gained by other persons at an even earlier time.
Nor need we determine in this case under what circumstances constructive
knowledge is deemed to exist, nor to what extent knowledge, actual or
constructive, is necessary to a finding of unwarrantable failure.
12/ The Board found it unnecessary to decide this issue. See note 5,
supra.
1959

Accordingly, we reverse the decision of the judge and reinstate
the withdrawai order.

..-·--

Fr _k

et. b,

5
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diz-~IJ"A.UE.

L'awsop., Commissioner

~iu~\R
~\QU \\.QJµQ
Marian Pearlman Nease, Commissioner
I

Connnissioner Backley did not

participat~n the decision of this case.

1960

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

December 12, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
Docket No. VINC 78-395-P

v.
FREEMAN UNITED COAL MINING
COMPANY
Respondent

DECISION
The decision of the administrative law judge is reversed insofar
as he dismissed the Secretary of Labor's petition for assessment of
a penalty for an alleged violation of 30 CFR §75.400. The case is
remanded for further proceedings consistent with our opinion in
Old Ben Coal Co., No. VINC 74-11 (December 12, 1979).

79-12-6
1961

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

December 12, 1979

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

v.

Docket No. VINC 77-91

PEABODY COAL COMPANY,
Respondent
DECISION
The decision of the administrative law judge is reversed. The
case is remanded for further proceedings consistent with our opinion
in Old Ben Coal Co., No. VINC 74-11 (December 12,. 1979).

79-12 .....5

J.962

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

December 31, 1979
RAY MARSHALL, SECRETARY OF LABOR,
ex rel. RODNEY D. McCOY

v.

Docket No. KENT 79-263-D

ORA MAE COAL COMPANY
ORDER
The Secretary of Labor has filed a petition for interlocutory
review of a judge's ruling that he must produce documents that allegedly
contain statements by miners to Mine Safety and Health Administration
(MSHA) personnel concerning a discrimination complaint. The documents
include the report of an MSHA investigator. The Secretary moved before
the judge to strike those portions of Ora Mae Coal Company's motion for
production that requested those documents. The motion to strike claimed
that production would violate 29 CFR §2700.59, which bars a judge from
disclosing the names of miner-informants except in extraordinary circumstances. The judge ordered.deletion of the names of miner-informants
before production of the documents containing their statements. The
Secretary claims in his petition for interlocutory review that the judge
erred in not reviewing all the documents in camera to determine whether
the statements, even with the names deleted, might reveal to the operator
the identity of the miner-informants. As to the MSHA investigator's
report, the Sec.retary claims executive privilege as well.
Inasmuch as the Secretary in his motion to strike did not invoke
the claim of executive privilege, did not argue to the judge that the
statements thems.elves might reveal the identity of informants, and did
not request an in camera inspection by the judge, we consider interlocutory review to be inappropriate at this time. These matters
should have been presented to the judge first. The petition for interlocutory review is accordingly denied without prejudice.

1963

79-12.;_11

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

ADMINISTRATIVE LAW JUDGE DECISIONS
DECEMBER 1 - 31, 1979

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

December 3, 1979

CLEVELAND CLIFFS IRON COMPANY,
Applicant

v.

Contest of Order
Docket No. VINC 79-68-M

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

Order No. 286223
October 30, 1978

UNITED STEELWORKERS OF AMERiCA,
Representative of the Miners
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. VINC 79-240-PM
Humboldt Mill

CLEVELAND CLIFFS IRON COMPANY,
Respondent
DECISION
Appearances:

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman,
Graybill & Greenlee, Ishpeming, Michigan, for Applicant in Docket No. VINC 79-68-M and Respondent in
Docket No. VINC 79-240-PM;
William B. Moran, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Respondent in Docket No. VINC 79-68-M and Petitioner
in Docket No. VINC 79-240-PM;
Mr. Bruce Chapman, Safety Committee Chairman, and
Mr. Ernest Ronn, Subdistrict Director, United Steelworkers of America, for the Representative.of the
Miners,

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
Applicant (CCI) seeks review of an order of withdrawal issued on
October 30, 1978, under section 104(b) of the Federal Mine Safety and

1965

HealthAct of 1977, 30 U.S.C. § 814(b). The order was issued because
of the failure of Applicant to abate the violation alleged in a citation issued August 23, 1978, and modified October 5, 1978, charging a
violation of the mandatory safety standard contained in 30 CFR 55.9-22,
which requires berms or guards to be installed on the outer bank of
elevated roadways. Petitioner (MSHA) filed a civil penalty proceeding
seeking a penalty for the violation alleged in the citation. The two
proceedings were consolidated for the purposes of hearing and decision
since they involved the same facts. Pursuant to notice, a hearing.was
held on the merits in Marquette, Michigan, on August 7 and 8, 1979.
Frank Gerovac and William Carlson testified on behalf of MSHA. Max
Woelffer, Joseph Crites, Gordon Miner, and Robert Neil testified on
behalf of CCI. No witnesses were called.by the Representative of the
Miners (USWA). At the request of the parties, I viewed the cited
areas on August 8, 1979, accompanied by representatives of the three
parties. Following this, I stated on the record what I had observed.
Posthearing briefs were filed by CCI and MSHA. To the extent that
the proposed findings and conclusions are not incorporated in this
decision, they are rejected.
REGULATION
30 CFR 55. 9-22 provides as follows: "Mandatory. Berms or
guards shall. be provided on the outer bank of elevated roadways."
ISSUES
1. Whether the roads covered by the citation and order involved
in this case were subject to the mandatory standard in 30 CFR 55.9~22?

(a)

Whether the roadways in question were elevated?

(b) Whether the portions of the roadway involved herein
are covered by the phrase "the outer bank?"
(c) Whether the standard applies only to roadways used for
loading, hauling and dumping?
(d) If the previous question is answered affirmatively,
whether the roadways in question here were used for loading, hauling
or dumping?
2. If a violation of the standard has been established, what
is the appropriate penalty?
FINDINGS OF FACT

1. CCI, in October 1978, and prior thereto, was the operator of
the Humboldt Mill, a mill and iron ore pelletizing plant in Marquette
County, Michigan.

1966

2. CCI is a large operator. In October 1978, the Humboldt Mill
employed approximately 111 people and operated three shifts daily,
7 days a week.
3. From the effective date of the 1977 Act until August 23,
1978, three violations of the mandatory standard contained in 30 CFR
55.9-22 were assessed and paid. Mr. Carlson, the supervisor of MSHA's
Marquette Field Office, testified that approximately 26 "berm citations" were issued to CCI between 1974 and 1979. Since there was no
evidence as to the number of such citations that were paid, this does
not establish a history of prior violations. I conclude that the
history is not such that penalties should be increased because of it.
4. On August 23, 1978, Federal mine inspector Frank Gerovac,
during a regular inspection of CCI's Humboldt Mill, issued Citation
No. 286849 charging a violaton of 30 CFR 55.9-22 for a failure to provide berms on a 1,500-foot stretch of land on the western side of the
road to the M-95 lift station and on a 35-foot stretch of land on the
road leading to the pit pump station.
5. On October 5, 1978, William Carlson, supervisory mining
engineer fo.r MSHA' s Marquette Field Office, modified the citation
based upon a reinspection of the area. The modified citation
included an additional area: a 200-foot section on the eastern
side of the M-95 lift station road. The abatement time was extended
to October 12, 1978.
6. On October 30, 1978, Federal mine inspector Richard Breazeal
issued a 104(b) closure order because of the failure to abate the
condition cited.

The ·M-95 Lift Station Roadway

7. The M-95 lift station roadway, also called the tailings dike
road, is a rough gravel road along the crest of an impoundment dike,
which is itself constructed of gravel and rock. The road is wide
enough for two-way travel, although it is normally used by only one
vehicle at a time.
8. The distance between the edge of the road and outer edge of
the dike varies from 6 to. 10 feet.
9. The roadway itself slants slightly to the inner side of the
dike (away from highway M-95). The slant varies from 6 inches to a
foot in some places.
10. The side of the dike road toward M-95 has a drop-off
increasing in steepness as the road approaches the pumps. The road
also narrows as it approaches the pumps. The angle of the slope is

1967

up to 45 degrees. The slope from the roadway to the bottom measured
up to approximately 75 feet. The vertical differential in height
from top to bottom was approximately 35 feet.
11. There are many large rocks and boulders ori the slope down
to the bottom. At the bottom of the slope, there are many large trees
and a large area covered by water or swamp.
12. The other side of the dike road toward the tailings basin
is less steep--the drop-off is from 5 to 8 feet or less. There are
some boulders along the side forming a natural barrier on this bank.
The tailings basin is presently grown over with vegetation.
13. The road is used as an access to the M-95 lift pump station.
The purpose of the pump station is to raise the water in a stream,
which was blocked by the dike, up over the dike to its original course
further downstream. Two operating pumps are in the pumphouse, and a
third is there for use when needed.
14. At least once a day on the day shift, a supervisory employee
drives a pickup truck on the road to check the pumps and the water
level. On many days, the afternoon and night shift supervisors also
drive down to check the pumps and the water level •.
15. In the winter the pumps do not run continuously. Therefore,
trips are made to the lift pump station to turn the pumps off and to
restart them. When the pumps are turned off, the pipeline must be
drained and two or more men are taken to the pumps for this task.
16. If mechanical problems develop with a pump, a 1-ton flatbed truck brings a replacement pump, and the faulty one is taken
back to the shop for repairs.
17. In the spring of the year, it is ordinarily necessary to
bring in and install a fourth pump because of the large amount of
water. After the water has subsided, it is necessary to drive a
truck down to the station and remove the fourth pump.
18. In the winter time, it is necessary to plow the road of
snow to maintain access to the pumps. I can safely take official
notice that a considerable amount of snow normally falls in the
winter months in Harquette County, Hichigan.
19.

The road has minimal maintenance, but occasionally it is
to use a front-end loader to fill chuckholes and patch
rough areas.

necessar~

1968

20. The pit pump station has a submerged pump in the pit water
and draws cold .water from 60 feet down for use in the concentrating
process in the mill. The water is pumped out to the mill.
21. The road to the pit pump station is narrow--only wide
enough for single-lane traffic for most of its course, but widening
out in the area closer to the station. As the road approaches the
station, there is a wider turn around area, or parking area,
below which is an overflow pipe which crosses the road and prevents
vehicles from going further.
22. The composition of the road to the pit pump station is
similar to that of the lift station.road.
23. There are boulders forming a berm along the edge of the
roadway northeast of the area covered by the citation. This apparently is a remnant of a bermed roadway used when the pit was being
mined.
24. There is a drop-off of about 12 feet to a flat area 20 or
30 feet wide. Beyond that, there is a further drop-off to an area
covered by water.
25. The pump is checked each shift by a supervisor who ordinarily drives to the station in a pickup truck. Periodic maintenance
is required as was the case for the pumps in the lift station.
DISCUSSION AND CONCLUSIONS OF LAW
Elevated Roadway
There is little dispute that the roadways in question are elevated. The roadway to the M-95 lift station is 35 to 40 feet above
the adjacent terrain and the slope toward M-95 is at a 45-degree
angle. The other edge of the road in the cited area is 5 to 8 feet
above the adjacent terrain. The cited area on the pit pump station
road has a 10- to 12-foot drop-off to a ledge and a further dropoff of 12 feet to a water-filled area. Both areas are of sufficient
height above the adjacent terrain to create a hazard in the event a
vehicle ran off the roadway. Therefore, they are elevated.
Outer Bank
The standard applies to "the outer bank" (singular) of an elevated roadway. CCI argues that it is intended to cover roadways having a single bank as is typically the case on a haulage road from a
pit or on the side of a mountain. No compelling reason having to do
with safety was advanced for so limiting the standard. Two Administrative Law Judge decisions are in point.. In MESA v. Peabody Coal
Company, Docket No. VINC 77-102-P, issued December 13, 1977, Judge

1969

Koutras considered the berm standard for coal mines contained in
30 CFR 77.1605(k). The standards are in identical language. Judge
Koutras heid that the regulation applies only to a single outside bank
of the road and vacated the citation because it was directed to the
inner bank of the roadway in question over which an employee drove in
a fatal accident. In Cleveland Cliffs Iron Company v. MSHA, Dock£t
No. VINC 78-300-M, issued September 8, 1978, Judge Moore interpreted
the language in 30 CFR 55.9-22 as follows:
Inasmuch as it is the elevation which creates the
hazard that berms are designed to alleviate, the intent
of the regulation must be to require those berms wherever
there is a hazard created by the elevation. Therefore,
the term 'outer bank' means whichever bank is hazardous
because of the elevation, and if both sides of a road
present a hazard of rolling down a steep embankment,
then both sides of the road are required to have berms.
The safety standard is meant to protect drivers of vehicles from
injuries caused by going over embankments. It would be anomalous if
the standard were limited to one side of the road when the hazard is
on the other side or on both sides. With no reason other than the
use of the singular term "the outer bank," I would find it impossible
to accept such a construction. The use of the singular may be
explained by reference to the direction of travel: the outer bank
may be interpreted as the bank on the right of the driver. Therefore,
on roads carrying traffic both ways, both banks are "the outer bank."
I conclude that the standard requires berms for both banks of elevated
roadways.
Loading, Hauling and Dumping
30 CFR 55.9 (of which 30 CFR 55.9-22 is a part) is a heading or
title for the entire section. It reads: "Loading, hauling, dumping."
It explains or defines the purpose and scope of the section, and
therefore, in my opinion, limits the applicability of the safety
standards set out in the subsections. See Cleveland Cliffs Iron
Company v. MSHA, supra. I conclude tha'°tt"he berm standard applies
only to roadways involved in loading, hauling and dumping. It remains
to consider whether the activities on the road in question come within
those terms.
CCI contends that the berm standard applies only "to typical load
haul and dump movements associated with open pit activities, the most
obvious of which is the loading, hauling and dumping of overburden and
ore." This restricted interpretation was rejected in the case. of
Cleveland Cliffs Iron Company v. MSHA, supra, which held that trucks
building a pipeline road were involved in hauling. Under the coal
mine standard, Judge Michels held that the berm standard was applicable on roads used for the transportation of personnel. MESA v.

1970

Consolidation Coal Company, Docket No. VINC 77-87, issued July 13,
1977. In the case of MESA v. Peabody, supra, Judge Koutras held that
the standard applied to all roads on mine property used to transport
coal, equipment or men.
As is shown in findings of fact numbers 13 through 19 and finding of fact 25, the roads in question here are used regularly, ordinarily three times a day and on some days more often. Their primary
use is as access roads to the p~~p stations. They are not used for
hauling ore or any mine product. The vehicles using the road are
normally pickup trucks and 1-ton flatbed trucks. Ordinarily, the
driver is alone, but occasionally men are transported. A number of
times each year, the roads are used to haul pumps to and from the
stations. Thus, men, equipment and tools are transported along these
roads on a regular though limited basis. Is this hauling? A technical dictionary 1/ defines "hauling" as "the drawing or conveying of
the product of the mine from the working places to the bottom of the
hoisting shaft or slope." This definition seems to limit the term to
underground mining and is therefore not helpful. The same dictionary
defines "haulage" as "the drawing or conveying, in cars or otherwise,
or movement of men, supplies, ore and waste both underground and on
the surface." This definition would seem to include the activities
on the roads in question. MSHA and its predecessor agency have in a
more or less formal way interpreted the standard as applicable to all
active roadways. The interpretation by the agency responsible for the
regulation is of course entitled to great weight. However, it is not
clear whether this interpretation is based upon the conclusion (which
I reject) that the terms "loading, hauling and dumping" do not limit
the applicability of the standard or upon the position that hauling
occurs on all active roadways.
Having in mind the purpose of the regulation, which is to guard
the safety of miners who travel on elevated roadways, I conclude that
the routine, systematic usage of the roadways shown by this record
constitutes hauling. Therefore, I conclude that berms are required
on the areas of the roadways covered by the citations and order
involved l;lerein.
Penalty
I conclude that the citation as modified properly charged a violation of 30 CFR 55.9-22 and that a violation has been established
by the evidence. CCI does not dispute that berms were not provided
in the areas covered by the citation.
1/ A Dictionary of Mining, Mineral and Related Terms, U.S. Department
of the Interior (1968), pp. 530-531.

1971

I have previously found that CCI is a large operator, and that
its history of prior violations is not significant. There is no evidence that a penalty imposed herein will have any effect on CCI's
ability to continue in business, and therefore, I find that it will
not.
The gravity of a safety violation must be measured by (1) the
likelihood that it will result in injuries, (2) the number of workers
potentially exposed to such injuries, and (3) the severity of potential injuries. The evidence establishes in this case that injuries
are not likely. The roadways are wide and the chances of going over
the bank are not great. However, the hazard may be increased· by
weather conditions, such as fog or rain or snow. The number of workers
exposed is not great, since the roadways are used relatively infrequently. However, should a vehicle go over the bank, the likelihood
of severe injuries is very high because of the steep, rocky terrain.
I conclude the violation was moderately severe.
CCI's failure to provide berms was intentional, in keeping with
its (good faith) position that the standard did not apply to the
roadways in question. For the purpose of the assessment of a civil
penalty, I treat this as the equivalent of ordinary negligence.
CCI did not demonstrate good faith in attempting to achieve rapid
compliance, since it did not make any attempt to comply, and a closure
order was issued. Although CCI was in good faith relying on its
interpretation of the standard, I cannot credit it in the penalty
proceeding with attempting to achieve rapid compliance.
Based on the testimony and other evidence introduced at the hearing and my viewing the site, and considering the criteria set forth
in section llO(i) of the Act, I conclude that a civil penalty of $880
should be imposed for the violation found to have occurred.
ORDER
Therefore, IT IS ORDERED that in Docket No. VINC 79-68-M, Order
of Withdrawal No. 286223 issued October 30, 1978, is AFFIRMED and the
contest of the order is DENIED.
IT IS FURTHER ORDERED that in Docket No. VINC 79-240-PM, Respondent CCI is ordered to pay the sum of $880 within 30 days of the date
of this decision as.a civil penalty for the violation of 30 CFR
55.9-22.
/)

'

;; '·

"/J,,!/kv .; /rl!J .- v cf:. .~ 2 c::" ((_
.../

James A. Broderick
Chief Administrative Law Judge

1972

FEDERAL M,INE SAfETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520,S LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

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

Docket No. BARB 79-272-P
A.O. No. 15-02502-03007V

Petitioner
v.

No. 18 Mine
SHAMROCK COAL COMPANY,
Respondent
DECISION
Appearances:

George Drumming, Jr., Attorney, U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for the
petitioner;
Neville Smith, Esquire, Manchester, Kentucky, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner pursuant to se.ction llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a), on January 31, 1979,
charging the respondent with one alleged violation of the provisions of
30 CFR 75.604. The alleged violation was cited on May 25, 1978, by an MSHA
inspector in Citation No. 132945, which states as follows:
The electrical connections or splice in the conductors
of the low medium voltage 550 volt AC 3 phase, roof bolter
cable on the "G" section was not mechanically or electrically
efficient. The splice was made by twist connection of the
cable conductors. Section foreman stated knowledge of such
type splice being in the cable and that other splices are
made in the same manner.
The inspector cited a violation of 30 CFR 75.514 and fixed May 26,
1978, as the abatement date, but extended that date to June 30, 1978, at
which time he modified the citation on May 26, 1978, by stating as follows:

1973

A new cable was installed for the roof bolter. The new
cable did not contain any splices. This citation is hereby
modified to terminate the violation within the cable. However, this citation is also modified to remain in effect
until all electrical repairmen, which perform cable splicing
are properly retrained in correct cable splicing techniques.
MSHA shall be notified as to the time and place of such
retraining.
The inspector terminated the citation on June 2, 1978, and the termination notice states: "A new cable was installed for the roof bolter and
all maintenance men were retrained on the proper way to make a splice in
a power cable."
On June 9, 1978, the inspector modified his original citation of
May 25, 1978, as follows: "Change part and section of violation from
75.0514 to 75.0604. The type splice was made within a trailing cable to
the roof bolter."
Respondent filed an answer contesting the citation on the following
grounds:

(1) The proposed penalty of $1,000 is not based upon
and in compliance with the six statutory criteria.
(2) The annual company production for the year 1977 was
not 2,424,628 tons and was substantially less than that
amount.
(3) No violation occurred in that 30 CFR 75.604 does
not require that a "suitable connector" be used as required
for abatement of the amended citation.

(4) A square knot had been placed in the splice area in
the manner usually and customarily done for many years at the
mine, and such connection complies with the requirements of
30 CFR 75.604. Such connection had repeatedly been inspected
and approved by other MESA and MSHA inspectors over a period
of years and had been found acceptable, proper, and not in
violation of the cited regulation or any other regulations.
A hearing was held in Lexington, Kentucky, on August 27, 1979, and the
parties waived the filing of posthearing proposed findings and conclusions
(Tr. 147).
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

1974

filed in this proceeding, and, if so, (2) the appropriate civil penalty that
should be assessed against the respondent for the alleged violation based
upon the criteria set forth in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the course of this
decision.
In determining the amount of a civil penalty assessment, section ·uo(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance after notification of the violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L._95-164,
30 u.s.c. § 801 ~~·
2.

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

3.

Commission Rules, 29 CFR 2700.l ~ ~·
Discussion

Stipulations
The parties stipulated to the following (Tr. 6-9):
1. This proceeding is governed by the Federal Mine Safety and Health
Act of 1977 and the standards and regulations pr01uulgated thereunder.
2.

The Administrative Law Judge has jurisdiction over this proceeding.

3. Shamrock Coal Company is the operator of the No. 18 Mine, and, as
such, is subject to the jurisdiction of the above Act.
4. The No. 18 Mine currently employs 262 persons; 164 in underground
mining, 44 on the surface, 46 in the preparation plant, 4 in a s~rface
mining site, and 6 in the mine office.
·

5. Respondent's ability to continue in business will not be affected
by any civil penalty assessed in this matter.
6. The MSHA inspector who issued the notice and order in this matter
was a duly authorized representative of the Secretary of Labor, and copies
of the notice and order which are the subject of this hearing were properly
served upon a representative of the operator.

1975

7. The No. 18 Mine's history of previous violations paid prior to the
issuance of this order or notice is from January 1, 1970, to April 8, 1974.
Total violations paid were ll3. Total amount paid $6,623. From January 1,
1970, to May 1, 1977, the total violations paid were 249 and the total
amount paid was $17,117.
8. Shamrock Coal Company is controlled by B. Ray Thompson, Jr., who
also controls Greenwood Land and Mining Company, Clover Coal Company and
Freedom Coal Company which are currently in production. The total coal
production of Shamrock Coal Company for the year 1977 was approximately
1.3 million tons. The total coal production of Shamrock, together with the
above-referenced coal companies controlled by B. Ray Thompson, Jr., for the
year 1977 was approximately 1.4 million tons.
During the course of the hearing, respondent asserted that the total
coal production for the respondent was somewhat less that that shown by the
petitioner's documentation which initially indicated production to be in
excess of 2 million tons. In any event, the parties further stipulated and
agreed that f~r purposes of any civil penalty assessment, respondent should
be considered to be a medium-sized operator (Tr. 9).
DISCUSSION
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Paul L. Scall testified that he is an electrical
engineer with 21 years' experience, 6 of which were in the mining business.
He confirmed that he inspected the mine on May 25, 1978, for. the purpose of
checking on some previous citations and while there he observed a damaged
trailing cable on a roof bolter. While looking at the damaged cable area,
he also noted that a splice in the cable was made by twisting the connectors
and tying them in a square knot. He determined that this was not a proper
electrical connection because such a splice does not have a compl~te crosssectional area of the two conductors in connection with each other and
therefore there is no total current-carrying capability in that conductor.
This will cause a "hot spot" to develop and will tend to heat up and further
damage the stranded conductors (Tr. 10-13).
Inspector Scall testified that he initially cited section 75.514, a
general standard, and then modified the citation to reflect a violation of
section 75 .604, which specifically deals with trailing cab las. The standard has three requirements and it is intended to prevent persons from
coming in contact with live exposed conductors. The mechanical strength of
a square knot, as opposed to a splice made in conformity with the manufacturer's specification as to how the splice should be made, is questionable. A "pull test" would have to be made to determine whether a square
knotted splice is as strong as the approved method of using a splice ring
(Tr. 14-15).
Mr. Scall stated that permanent splices must be made in accordance
with a manufacturer's specifications or a manufacturer's splice kit

1976

approved by MSHA, and to his knowledge there is no manufacturer's specifications for pennanent splicing which specifies that a square knot may be
used. The respondent should purchase an MSHA approved kit which contains
the specifications (Tr. 16).
If a person touched an unprotected 550-volt cable, electrocution and
death could .be expected, and the person that touched it would be the one
exposed to such a hazard. The respondent was aware of the condition cited
because he discussed the splice with section foreman Cecil Hooker who
admitted he was aware of the splice being made with a square knot and
acknowledged its use throughout the Shamrock mines. He cited the violation
at. 10:30 and fixed 8 a.m. the next morning as the abatement time, and
respondent cooperated in achieving compliance by replacing the trailing
cable in question with a new cable without a splice in it (Tr. 16-18).
Mr. Scall stated that the violation could have proceeded under section 75.514 without being changed to section 75.604, but he amended it
because he believed the per;nanent splice should be made to a manufacturer's
exact specifications. Section 75 .514 was a general electrical standard,
and section 75.604 deals with a specific standard for trailing cables. In
achieving compliance, in addition to replacing or repairing the splice, he
alloweri the roof bolter to be put back into service provided the respondent
retrained its personnel as to the method for making the splice and that
MSHA be notified as to the time and place of the retraining. MSHA was so
notified, an MSHA representaive attended the retraining classes and the
citation was subsequently terminated (Tr. 19-20).
On cross-examination, Mr. Scall testified that he was not aware of any
MSHA guidelines regarding the use of square knots while making a permanent
splice, but he did refer to a November 1973 MESA Guideline and Instructions
for electrical inspectors, or manual, and specifically, page 17 (Tr. 26-27).
He had previously inspected the mine in question, but the question of the
use of square knots had not previously arisen, and none of his fellow
inspectors ever advised him that they found nothing wrong with the use of
square knots (Tr. 29). He did discuss with his supervisor Henry Standafer
the question of whether section 75.514 or 75.604 should be cited, and
Mr. Standafer advised him that in his enforcement of the standard he did
not permit the usa of square knots (Tr. 30).
Mr. Sc all testified that the MSHA Manual referred to does make reference to manufacturer's specifications, and while he could not specify any
specific one for the kind of cable in question, he did ~ake reference to
kits manufactured by Raychen, CSI, and 3-M and stated that they all call
for the use of splice rings (Tr. 32-33). He has never conducted any splice
tests or examinations to confirm that a reduction in voltage occurs through
the use of a square knot as compared to the use of splice rings, and he has
conducted no tests regarding the "hot spots" previously mentioned (Tr. 34).
He was not aware that square knots were used generally in the industry for
many years (Tr. 34). He indicated that a slip ring would provide uniformity, while the size of a square knot would depend on the person making it

1977

(Tr. 35). Any moisture seal and vulcanization would be the same insofar as
splices made with square knots or splice rings are concerned, and the difference in the two methods is in connection with the splice being mechanically strong, adequate conductivity, and flexibility (Tr. 36).
On redirect, Mr. Scall stated that the splice kits previously referred
to have been approved by MSHA, and they are some of the major splice kits
manufactured (Tr. 38). He described the method for making a square knot,
and stated that the conductivity is not as adequate or as good as a splice
made with a ring. A ring encircles both conductors which are being spliced
by pressure and it mechanically joins the two conductors, but the square
knotted splice is joined only by the knot arrangement. The strength of the
two types of splices can only be determined after they are subjected to· a
pull test. The square knot also develops heat because of the voltage drop
across the knot due to a smaller cross-sectional area of the conductors
being in contact with each other. Although a square knot is more convenient
to make, it does not provide long lasting protection as does the splice
ring (Tr. 39-40).
On recross, Inspector Scall confirmed that he relied on the 1973
Electrical Inspector's manual, page 17, in interpreting section 75.514 and
the use of square knots, and he read the pertinent provision into the record
as follows (Tr. 41-42):
Electrical Connections or Splices Suitability. This
section requires that all splices and current carrying conductors be made with clamps, connectors, track bonds or other
suitable connectors to provide good electrical connections.
Tape such as rubber, tar, impregnated glass, asbestos or
plastic will be accepted as insulation. Friction tape alone
is not acceptable but can be used over other tapes to provide
mechanical protection. Spliced conductors in all multiple
conductor cables shall be re-insulated individually and an
outer jacket compatible to that covering the remainder of the
cable shall be placed around the complete splice. Splices
made by twisting conductors together or by tying ,knots in
conductors, splices that have bare or exposed conductors,
splices that heat or are under load or splices in multiple
conductor cables that do not have the outerjacket replaced
shall constitute noncompliance.
Inspector Scall also read into the record the following pertinent
excerpt from page 27 of the Manual concerning the interpretation of
section 75.604 (Tr. 43-44):
Materials used by the Bureau approval and testing section as flame resistent for use in making per~anent splices
in trailing cables shall be used in complete accordance with
manufacturers' instructions. Splice insulating kits shall
be applied without any substitution or alteration of parts

1978

in order to duplicate the conditions under which the materials were tested and accepted. Any deviation would require
additional evaluation or testing by the Bureau and if used
without such evaluation, would constitute noncompliance with
this provision.
In response to bench questions, Mr. Scall stated he holds a B.S.
degree in electrical engineering from the University of Kentucky. He confirmed that the gist of the alleged violation lies in the fact that in
permanently splicing the trailing cable the respondent used a square knot
rather than making the splice with a mechanical device such as a connector
and a ring. Although he conceded that section 75.514 would cover a situation where a splice is made without the use of a connector, he cited section 75.604 because of a November 20, 1974, MESA memorandum addressed to
District Managers from MESA Assistant Administrator John w. Crawford (Tr.
45-49). The thrust of the violation also lies in the fact that he did not
believe that the square knot was mechanically strong and it did not provide
efficient electrical conductivity (Tr. 49-50).
Mr. Scall conceded that no pull or stress test had ever been conducted
with the square knot and the reason MSHA insists on the use of approved
manufactuer's splice kits lies in the assumption that splices· have been
tested ~y the manufacturer (Tr. 51). tle made reference to an April 6, 1973,
MESA memorandmn dealing with sections 75.604 and 77.602, and pertinent
portions were read into the record by me as follows (Tr. 52-53):
JUDGE KOUTRAS: Let the record show that the inspector
just handed me a memo, April 6, 1973, which is addressed to
all inspection personnel. The subject is Section 75.604 and
77.602, Permanent Splicing of Trailing Cables.
Let me just read the first paragraph gentlemen. And
this memo, again, is signed by John W. Crawford and it says:
[Reading} "It has come to the attention of this office,"
then he's got in brackets, visual examination, "that the
adequacy of permanent splices in trailing cables leaves a
lot to be desired. Many of these so-called penuanent splices
are being accepted by inspection personnel, when, in fact,
many of the splices are poor excuses for temporary splices."
"All splices shall be inspected to ascertain whether
they are effectively insulated and sealed so as to exclude
moisture. Particular attention should be paid to splices
which are made with lapped tape to ensure compliance with
the above-mentioned sections."
"If the splices, regardless of who the manufacturer
may be or what has been printed in the industry literature,
do not conform to the requirements of Section 76.604 and

1979

77.602, a notice of violation shall be issued. All inspection personnel to pay particular attention to the requirements as set forth above."
Mr. Scall testified that the trailing cable splice in question was
not well insulated or sealed so as to exclude moisture in that the outer
jacket was "ragged where I could see the inner conductors" and it was not
sealed to prevent moisture. He required that the splice be opened so that
he could inspect it and he could see it was square knotted because of the
bulk of the conductors. The splice was made and then an attempt was made
to reinsulate it but the ;noisture seals were damaged because they were
ragged and split (Tr. 54-56). The condition of the cable .led him to require
that it be opened up and inspected, and since MSHA does not require all
pennanent splices to be opened up unless they are damaged, for all he knows
square knots could still be used, and if they are small, vulcanized, and
well insulated, he would not know the difference (Tr. 56). A square knot
may be electrically efficient and good when it is first made, but it will
deteriorate over a period of time and a lesser degree of electrical continuity will result due to the heating effect (Tr. 59).
The roof bolter was energized at the time of the inspection, and it
was shut down so that the section repairman could open the splice for his
examination. The bolter was taken out of service and a new cable was
brought in to correct the cited condition. He did not attend the retraining and did not know the type of splicing presently used at the mine. He
confirmed that he discovered the square knotted splice while at the mine
to abate previous citations concerning low voltage monitors on the cables,
and this required the inspection of the cable which disclosed the faulty
splice in question. He discovered no similar violations on the section
(Tr. 59-62).
Inspector Scall testified that the operator could have selected the
proper kit to use in splicing the cable in question, but other than the
Nove;nber 1973 MSHA guideline, he was not aware of any current publications
which may have informed the respondent of the proper splicing as of the
time of the citation in 1978 (Tr. 66-67). The MSHA district office had no
procedure for advising operators as to the requirements of section 75.604.
He did not know when the splice in question was made (Tr. 67). The respondent exercised excellent good faith abatement (Tr. 69). The previous
citations did not concern defective splices, and at the time of the inspection coal was not being cut or loaded. The power center conditions were
dry and the cable in question was rolled up on the reel but was taken off
in order to allow him to inspect it. The cable was 500 feet long and only
one place was defective. The electrical equipment is required to be
inspected weekly, he did not check the preshift books, and did not know
when the cable was last inspected. With the cable on the reel, it is
reasonable to conclude that someone walking by and visually inspecting the
cable would not be able to detect the condition cited unless the cable was
reeled out and examined (Tr. 73-80).

1980

On further recross, Inspector Scall stated that there was no problem
with the cable moisture seal or vulcanization, and his concern was with the
fact that respondent was using a square knot to make the splice (Tr. 81-82).
Respondent's Testimony
Gordon Couch, respondent's safety director, testified that prior to
his employment with the respondent during the past 2 years, he was employed
by the Bureau of Mines at Barbourville, Kentucky as a Federal coal mine
inspector and worked in that capacity, as well as a supervisory inspector,
from 1969 to 1977 (Tr. 92). He and inspector Sc alls discussed the citation
in question during the inspection closeout conference, and he was not present during the actual inspection when the defective splice was discovered
(Tr. 96). In his view, the only mandatory requirements for the use of
manufacturer's specifications in splicing is in regard to the requirements
of Part 800 of the regulations dealing with high voltage cables rather than
low voltage equipment, and nothing in section 75.604 mentions manufacturer's
specifications (Tr. 98). Respondent uses thermo-fit splice kits on their
trailing cables and follows the manufacturer's recommendations in all
regards (Tr. 98). He confirmed that square knots were used on shuttle car
and roof bolter cables, and that they have been using them on cables such
as the one in issue since 1957. Connectors are used on larger sized cables
because they are not flexible enough to bend to facilitate the use of a
square knot (Tr. 99).
Mr. Couch stated that prior to the citation issued by inspector Scall,
MSHA inspectors had never complained about the square knot splices, they
were used prior to his employment with the respondent, and in his view they
satisfactorily comply with sections 75.604 and 75.514. Square knotted
splices provide adequate current-carrying capacity and provide adequate
strength. Splice rings presented problems on small cables since they
tended to cut and break the cable at the point where it entered the splice
ring (Tr. 100-101). At the present time, the square knot is still used,
but the splice ring is placed over the square knot and MSHA district supervisor Henry Standafer approved of this practice and that is the way the
men were "re-trained" to make the splice (Tr. 102).
Mr. Couch testified that the use of a square knot is 60 percent better
in terms of mechanical strength, conductivity, and flexibility than the use
of a splice ring or a connector on a small cable, and in his experience, he
has encountered no problems with overheating or decreased conductivity
(Tr. 103). After the inspection, respondent used both methods, i.e., square
knot and splice ring (Tr. 104). He has never encountered any problems with
the use of a square knot, but problems have been encountered with regard
to the use of splice rings, particularly with regard to slippage and flexibility (Tr. 105-106). Splices are usually made on the section by a repairman, and he does not believe there was an unwarrantable failure because the
respondent was not trying to hide anything and was following what it
believed was an acceptable practice since 1957 and no one had previously
questioned it (Tr. 109). Respondent is very safety conscious and that was
the case even when he was employed as an MSHA inspector (Tr. 110).

1981

On cross-examination, Mr. Couch testified that he did not recall
inspecting the Shamrock Coal Company operations while he was an MSHA inspector. He was aware of the MSHA manual referred to by inspector Scalls, and
was familiar with the infor.:nation dealing with sections 75.514 and 75.604,
and he was aware of violations issued under those sections while he was
employed as an MSHA supervisory inspector {Tr. 111-114). A square knotted
cable splice would only be checked if there were visible signs of damage
such as poor outer jacket bonding or peeling, and there are no procedures
for inspecting cables splices (Tr. 117). A square knot splice could be
subjected to a tremendous amount of pulling and tension without deterioration, he has never heard of such deterioration occurring, and has not conducted any pull tests with regard to the square knot (Tr. 118). At the
present time all cable repair personnel make the sa:ne square knot splice as
was made prior to the inspection (Tr. 119). Mr. Couch conceded that the
use of the splice ring in conjunction with the square knot provides an added
safety feature {Tr. 133).
Findings and Conclusions
The original citation as issued by the inspector charged the respondent
with a violation of section 75.514, which reads as follows: "All electrical
connections.or splices in conductors shall be mechanically and electrically
efficient, and suitable connectors shall be used. All electrical connections or splices in insulated wire shall be reinsulated at least to the same
degree of protection as the remainder of the wire.
The citation was subsequently modified to change the section cited
from 75.514 to 75.604, which reads as follows:
When permanent splices in trailing cables are made,
they shall be:
(a) Mechanically strong with adequate electrical
conductivity and flexibility;
(b) Effectively insulated and sealed so as to
exclude moisture; and
{c) Vulcanized or otherwise treated with suitable
materials to provide flame-resistant qualities and good
bonding to the outer jacket.
'lbe condition or practice described on the face of the citation alleges
that the permanent cable splice in question was not mechanically efficient,
in that the splice was made by "twist connection of the cable conductors. 11
The inspector's written statement made at the time the citation issued (Exh.
P-10), reflects that the splice was made with "twist connections" and the
inspector observed that the "cable could be pulled apart at splice which
would expose energized power wires." The narrative statement prepared by
the assessment officer containing his recommendations as to a proposed civil

1982

penalty (f.xn. P-6) contains the conclusions that the splice was made by
"twisting the wire ends together" and that a cable fire could result "due
to ilign resistance from the improper connections." Abatement was achieved
by installing a new cable, and as part of the abatement process, MSHA
required the respondent to retrain its personnel as to the "proper way" to
make a splice.
There is no dispute as to whether the splice in question was in fact
tied in a square knot. As a matter of fact, the testimony and evidence
adduced establishes that respondent readily acknowledged the use of square
knots throughout the mine in the past. Further, the evidence also establishes that square knots are still used in the making of permanent splices
and HSHA has approved of the practice provided a spliced ring is added as
an additional safety feature. In short, the square knot, which MSHA has
previously condemned, is presently in use in the mine, as long as a ring
is attached over the square-knotted splice to keep it secure.
The square knotted splice in this case was detected by the inspector
during the course of his inspection of a previously cited violation dealing
witn an unrelated condition. During his inspection to determine whether
the previous violation had been abated, he detected a danaged trailing cable
on a roof bolter. Upon further examination of the cable, and after it was
opened, ne observed that the conductors had been square knotted and that no
splice ring was installed. Were it not for the fact that the cable was
damaged, he would never have known that the conductors inside the cable were
tied in a square knot. The inspector was initially prompted to open the
cable and check the splice after detecting damaged cables on other pieces
of equipment, and that damage was unconnected with the manner in which the
splice in question was made (Tr. 62)~ After observing the damaged cable in
question, he ordered the equiF~ent shut down and taken out of service
because the cable failed to :neet the requirements of section 75.514 (Tr.
65). The previous citations which were being checked for abatement had
nothing to do with the use of a square knot to make the splice (Tr. 73).
The defective splice was only on one location on tne entire 500 feet of
cable (Tr. 77).
The citation here was not issueo because of the damaged cable. The
inspector testified that hiS-Concern was with the fact that the use of a
square knot was not a proper method for splicing an electrical connection
because he believed that such a splicing method resulted in an incomplete
cross-sectional connection which somehow detracted from the total currentcarrying capability of the conductors, thereby resulting in a possible "hot
spot'' in the cable. In addition, he obviously believed that the use of
a square knot, rather than an MSHA-approved splicing kit, could result in
the separation of the conductors, thereby leading to a possible exposure
of energized wires. Although the inspector did testify as to the condition of the cable, his testimony in this regard is somewhat confusing and
contradictory. For example, at one point in his testimony he stated that
the splice was not well-insulated or sealed so as to exclude moisture and
that it was in a "very ragged" condition (Tr. 55). He also indicated that

1983

the :noist.ure seals were damaged because they were split .in such a fashion
as to expose the inner conductors (Tr. 56). His earlier testimony was
that the factors of moisture seal and vulcanization with respect to a
square-knotted splice remain constant and that the only issue presented is
.whether the splice in question was mechanically strong so as to insure
adequate conductivity and flexibility (Tr. 36). When asked to clarify his
testimony concerning the requirements of subsection (a) of section }5.604.
dealing with the mechanical strength of the cable, subsection (b) dealing
with effective insulation and seals to exclude ;noisture, and subsecti.on ( c)
dealing with vulvanization so as to provide a flame-resistant quality for
the cable, the inspector conceded that he had previously stated that there
was no problems with the requirements of subsections (b) and (c) dealing
with !lloisture seals and vulvanization and that he issued the citatl.on
charging a violation of section 75.604 because he believed that the use of
a square knot did not insure adequate cable conductivity and flex.ibility
.<Tr. 81, 82) •
Based on the evidence adduced in this case, it seems clear that the
inspector and MSHA have never conducted any tests or studies to determine
the mechanical and electrical efficiency of square knots on a. cable splice,
notwithstanding the fact that respondent's testimony here indicates that
the use of such square knots has been an ongoing past arid present practice
in the mine and possibly throughout the industry for a number. of years.
·
He also testified that the question concerning the relative mechanical
strength of a splice made with a square knot and one made with a splicing
ring can only be determined by means of a "pull-test." In th~se circumstances, I conclude that the thrust of the alleged violation is the
inspector's belief that the use of the square knot rendered the splice
inefficient because over a period of. time it would deteriorate the electrical conductivity of the cable (Tr. 52). Peti.tioner' s counsel conceded
that the issue is the use of the square knot as a method for splicing t.he
cable in question (Tr. 80). In order to. sustain its burden of proof with
respect to the alleged violation, the petitioner must establish by a preponderance of credible evidence that the use of the square knot in ~aking
the splices in question in fact rendered the splice mechanically or electrically inefficient. After careful analysis and review of the evidence
in support of its case, I conclude that the petitione~ has failed to
establish that the use of a square knot, per~ rendered the splice in
question mechanically or electrically inefficient, and my reasons. for this
conclusion follow.
In~ v. Empire Energy Company, DENV 78-422-P,,decided by me on
December 8, 1978, I sustained a citation for a violation of the provisions
of 30 CFR 75.603, and found that a temporary splice in a trailing cable
of a water pump was not made in a "work..'llanlike manner" or "mechanically
strong" because it was made by the use of a square knot rather than. a
splicing ring. Section 75.603 requires that a temporary "splice, ... which
is defined by that sectic;m as "the mechanical joining of one or more ·conductor S that have been Severed, II be made in a WOrki.uanlike manner and be
mechanically strong. My finding of a violation in Empire Energy was based

1984

on the facts of tnat case, and MSHA there sustained its burden of proof
when it ~stablished that a splice made by use of a square knot resulting in
a splice three times the size of a normal splice made with a splicing ring
was not one which is mechanically strong or made in a workmanlike manner.
In that case, contrary to the position taken by the respondent in this
case, Empire conceded that the use of square knots in a splice was not an
acceptable practice in its mine. Further, in that case, MSHA t~ok the
position that the critical issue presented was not whether Empire used a
square knot, but rather, whether the requirements of section 75.603 were
violated.
In the instant case, respondent is charged with a violation of section 75.604, which is a statutory provision. That section does not contain
a definition of a permanent "splice" as does section 75.603, nor is there
any requirement ·that a permanent splice be made in a "workmanlike manner."
The.only requirement relied on by MSHA to support the citation is the
requirement contained in clause (a) of section 75.604 that the splice be
mechanically strong with adequate electrical conductivity and flexibility.
In issuing the citation, the inspector relied in part on an MSHA manual
which mentions the use of splice insulation kits, and he believes that the
use of any method for making splices short of those kits does not comply
with the requirements of section 75.604, notwithstanding the fact that the
manual section quoted specifically states that "any deviation from the use
of a splice kit would require additional evaluation or testing by the Bureau
and if used without such evaluation, would constitute noncompliance with
this provision." This manual language, if taken at face value, means that
any deviation from the use of a splicing kit in making a permanent splice
would subject an operator to a citation for violation of section 75.604
even though the inspector is oblivious of the fact that and MSHA testing
had been done on that splice. In short, it seems obvious here that the
inspector treated the manual reference as part and parcel of the mandatory
requirements of section 75.604. In addition, he was also obviously influenced by the interpretive memorandums alluded to during his testLnony.
Tne proble·m with this is that such manual references and internal memorandums are clearly not mandatory requirements binding on a mine operator,
and the manual clearly does not have the status of mandatory Secretarial
regulations, Kaiser Steel Corporation, 3 IBMA 489, 498 (1974).
The testimony adduced in this case reflects that a splice made by means
of a square knot cannot readily be discovered by casual visual observation,
unless of course it is so large or damaged so as to call one's attention to
it. In this case, the inspector discovered the square knot when he opened
the splice up while in the process of looking at other damage. Further,
as indicated earlier, square knots are presently still in use in the mine
with MSHA's blessing, with the stipulation that a splice ring also be used.
The point is, that the inspector, on the facts presented here, believes
that the use of a square knot for making a permanent splice is~.!!. a
violation because a square knotted splice is not mechanically strong and
does not provide adequate electrical conductivity and flexibility. However, these are unsupported conclusions by the inspector. As such, they

1985

may not legally support the citation, and for that reason I conclude that
MSHA has failed to prove a violation and the citation is VACATED. It seems
to- llte tnat if MSHA believes that the use of approved splicing kits is· a
tested and proven method for insuring the mechanical ,and electrical integrity of a splice, then it should take steps to promulgate a clear and
concise regulatory standard requiring the use of such splice kits, rather
than relying on some nebulous and general statutory language which puts
tne inspector in the position of legislating as to what the standard should
be, and leaves a mine operator in the vulnerable position of not knowing
what its responsibilities may be in terms of compliance. The promulgation
of a regulatory mandatory standard which directly requires the use of an
MSHA splicing kit, or the amendment of MSHA's Schedule 2G, Part 18,
Title 30, Code of Federal Regulations, will go a long way clearing up what
I consider to be a recurring problem with respect to the enforcement of
mandatory safety standards containing broad and general language which
leaves much to the imagination. The citation is VACATED.
ORDER

On the basis of the foregoing findings and conclusions, Citation
No. 0132945, May 25, 1978, citing an alleged violation of 30 CFR 75.604
is VACAT£D and this case is DISMISSED.

J/444
Ir I{J;;;;
G6l>rg~ p: iJ1t!jf;-'tV1
i

laministrative Law Judge

Distribution:·
George Drumming, Jr., Esq., U.S. Department of Labor, Office of
the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Neville Smith, Esq., Shamrock Coal Company, P.O. Box 441,
Manchester, KY 40962 (Certified Mail)
Standard Distribution

1986

'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

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

Civil Penalty Proceeding
Docket No. WEST 79-66-M
A.C. No. 35-00533-05002 R
M.F. Pit and Plant

READYMIX SAND & GRAVEL COMPANY,
INC.,
Respondent
DECISION
Appearances:

Marshall Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Alex M. Byler, Esq., Pendleton, Oregon, for Respondent.

Before:

Administrative Law Judge Michels

This matter is before me for hearing and decision on the petition for
assessment of civil penalty filed by the Petitioner on May 14, 1979, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a) (the Act). The Respondent, Readymix Sand & Gravel
.
Company, Inc., filed a timely answer to the petition denying the charges
and contending that no fine should be assessed. A hearing was held in
Pendleton, Oregon on August 30, 1979, and the parties appeared through
counsel. Posthearing briefs were filed by both sides and Respondent
filed a reply brief.
This action concerns a charge of a refusal to allow inspectors to
enter Respondent's mine for the purpose of inspection. The issue arose on
November 29, 1978, when Jim Busch, President of the Respondent, refused to
grant inspectors entry to the operator's crushing and cleaning plant; 1/ ·
The Respondent was charged with a violation of section 103(a) of the Act
for this refusal.
1/ Inspector Darwin Chambers issued a citation to the Respondent on
November 29, 1978, in which the condition or practice is described as
follows:
"On November 29, 1978, Jim Busch, President, refused to allow Darwin G.
Chambers and John M. Moore authorized representatives of the Secretary,
entry to the crushing and screening plant of the MF Pit and Plant, for the

1987

The Respondent has raised two defenses: (a) that a statute allowing
a warrantless administrative searcl1 is invalid and ( b) that the crusni.ng
and screening plant involved, located separate from the pit, is not a plant
used at, and in connection with, an excavation or mine so as to come within
the definition of "mill" in 30 c.eR 55.2. For these reasons, Respondent
asks that the proceeding be dismissed.
(a)

Non-consensual Searcn

Respondent's first arg~nent concerns the warrantless search. In contending that the statute in allowing a warrantless administrative search
is invalid it cites Marshall v. Barlow's Inc., 436 U.S. 307 (1978).
Respondent also cites a recent decision in U.S. District Court for the
District of New Mexico, Valley Transit Mix. Inc. v. Marshall (cited in
1 ~SHC 2081 (1Y79).
Petitioner has submitted, however, the recent decision of the Sixth
Circuit in Marsnall v. Nolichuckey Sand Company. Inc.,(No. 79-1111, decided
October 5, 1979), in which the court concluded that the enforcement needs
in the mining industry make a provision for warrantless search reasonable
and that a warrant is not needed for periodic inspections of "active workings" of sand and gravel "mines." Likewise the Third Circuit in Marshall
v. Stoudt's Ferry Preparation Company, 602 F.2d 589, 593 (1979) held that
"th.a dine Safety Act's enforcement scheme justifies warrantless inspections
and its restrictions on search discretion satisfy the reasonableness
standard asserted in Barlow's."
In light of these direct Federal Circuit Court precedents, Respondent's
contention on warrantless search is rejected.
( b)

Jurisdiction Over the "Mill"

Facts
There are no serious disputes about the facts. On November 29, 1978,
inspectors Darwin G. Chanbers and John M. Moore, arrived at the M. F. Pit
and Plant facility for the purpose of inspection of the Respondent. Ja:nes
Busch, President of the co-:npany, informed the inspectors that he would not
permit them to conduct an inspection of the crushing and cleaning plant
until ne had consulted his lawyer. Hr. Busch did not deny access to the
actual gravel mining area, i.e., the pit. He drew a distinction between
the pit where the material ~as excavated and the plant where crushing,
fn. l (continued)
purpose of conducting an inspection of the crushing and screening operations
of the mine pursuant to Section 103(a) of the Act. Mr. Busch stated that
federal inspectors could not enter his mine to conduct an inspecti9n of the
crushing and screening plant. i-lr. Busch was advised that this operation
was covered by tne 'Act' • "

1988

~l.Xing

and other processing takes place and believed that the latter was
not subject to HSHA's jurisdiction. The plant and the pit are separated
by a s:nall distance. a matter to be discussed below in further detail
(Tr. 5-6, 17-20).

Tile inspectors discussed the Act and regulations with Mr. Busch and
asserted they ciici have jurisdiction. In the course of these discussions,
Mr. Husch called his lawyer who affirmed to him that he was not subject to
the regulations under the Act. On that day, Hoveillber 29, 1978, Inspector
Chambers issued a citation. The following day, the same inspectors
returned and they were then permitted to conduct an inspection. The
refusal to permit inspection covered a period of less than 24 hours. In
the period between visits of the inspectors on November 29, Mr. Busch,
according to his testimony, was advised that he was subject to heavy fines
and possioly a prison term if he refused entry. He thought of this as a
"mighty big cluo" and so he allowed entry when the inspectors returned the
following day. ~o warrant was shown (Tr. 6-7, 18-20).
The locations of the two facilities in question, the plant and the
pit, are shown on a map received as Respondent's Exhibit R-1. They are
separated by a distance of approximately 460 feet (Tr. 28).
The Respondent basically deals in rock products. It excavates sand
and gravel fro;n open pits. This material is processed by crushing, screening and -washing. Some is sold as crushed rock and some is manufactured
·"'·~.,'v
into asphaltic concrete, ready mix conc.rete and concrete masonry units (Tr.
11). The company has several sites from which it extracts sand and gravel.
One is designated the Milton-Freewater (M-F) pit and plant site which is
located in Umatilla County. These are the facilities involved in this
proceeding (Tr. 11-14).
The sand and gravel produced at the pit site is largely processed at
the nearby plant. About 1-1/2 percent is processed elsewhere. Some
material fro~ other pits is also processed at the Milton Freewater plant
but the record does not disclose the percentages. It is a fair inference
from the whole record that most of the material processed at the M-F plant
comes from the nearby pit. The plant covers some 7.75 acres and it has an
office, scale, concrete batch plant, asphaltic concrete mixing plant, rock
crushing and screening plant, and other facilities (Tr. 30-36, 14).
The plant produces 100 ,000 to 150 ,000 tons per year. Approximately
35 persons are employed at the plant and 3 at the pit (Tr. 33-34, 37).
The Respondent sells its products in interstate commerce (Tr. 12).
The sand and gravel excavated at the pit is hauled by truck to the
plant. Some ti~es of the year for a few months the Walla Walla river,
which has a water course between the two properties is flooded, and the
material is hauled on county roads. This is about a 10 ~inute trip.
Otherwise the river bed is completely dry, and the material is hauled

1989

directly across the separating strip, a distance of some 460 feet.. This
short i1aul takes 4-5 minutes. From tl1e actual site of the pit to the
plant location is a distance of 1,600 - 1,700 feet (Tr. 15-16, 28-29) ..
It is not only the river bed that separates the plant and pit, nowever.. within the 460 feet strip there is land owned by a third party,
namely, Umatilla County. Respondent and Umatilla County have an arrangement whereby, the county, whose only access to the property is through
Respondent's pit site, is given a right of entry through Respondent's
fence and gate. There apparently is no quid~ quo.. The county at times
has denied a right of way to the Respondent across its property.. This
happened in 1972 and other times, but not in the last year, Respondent
has no easement and uses the county property only on a permissive basis
(Tr .. 16-17, 21-26).
Discussion
In approaching the issue of jurisdiction, the first inquiry is whether
a materials plant such as above described, is included within the Act as
a mine and thus subject to the provisions of the Act under section 4 ..
Section 3(h)(l) defines coal or other mines in pertinent part as "an area
of land fro.n which minerals are extracted in nonliquid form * ·* * and
(C) lands, excavations** * structures, facilities, equipment * * * used
in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals * * * .. "
Tnere apparently is no debate in this matter concerning the applicability of the Act to Respondent's crushing plant facility. Because of
certain terminology in the standards, Respondent contends that its plant
is excluaed from regulation but it does not argue that the Act is
inapplicable ..
The plain words of the statute, as quoted above, leave little if any
doubt that the definition of a mine includes tne kind of milling facility
operated by the Respondent. Aside from. that, the legislative history
i,,ndicates Congress' intention that tne coverage of the Act be broadly
~interpreted and specifically that milling is included. See for example,
v s .. Rep. No. 95-181, 95th Cong. 1st Sess~ 1, 14, reprinted in the 1977 u.s.
Code Cong .. & Admin. News 3401, 3414.
The Third Circuit Federal Court of Appeals in Marshall v. Stoudt's
Ferry Preparation Compa_!l_y, 602 F.2d 589, 592 (1979)~si-ated--that1-t agr~ed
with the district court that the work of preparing coal or other minerals
is included within the Act whether or not extraction is also being performed by the operator.
Thus, there appears to be no doubt that Respondent's plant or mill
is subject to the Act and the regulations.

1990

Respondent argues, however, that the phrasing of the definition of
the term "miil" under Part 55 (see also Part 56) serves to limit the j urisdiction of the regulatory agencies·. Part 56 contains standards directly
applicable to sand, gravet and crushed stone operations. At 30 CFR
56.2 the following is found under defintions: '"Mill' includes any ore
mill, sampling works, concentrator, and any crushing, grounding, or
screening plant used at, and in connection with, an excavation or 1nine. 11
The same definition is contained in Part 55 which covers health and safety
~tandards for metal and norunetalic open pit mines.
Respondent's argument is to the effect that this definition means if
the plant is not contiguous to the mine or on the same tract of real
property upon which the mine is locatea, that it is not a mill or plant
subject to inspection . In this case, it argues that because the plant was
comp letely separated from the pit by a minimum of at least 460 feet, and
sometimes mucn ~ore depending upon the season or other events, the plant
was not in fact "at" the pit.
In response to this argument, Petitioner in its post hearing brief
contends in effect that tne Act is controlling and that "[n]o geographical
limitation can or should be grafted upon the statutory definition by the
usage of a certain preposition used in a regulation drafted prior to the
1977 dine Safety Act." 2/ Petitioner also makes the point that the word
"mill" is followed by the word "includes" whereas all of the other words
in the definitional section are followed by ~he word "means" and that
the drafters by using such tenninology did not intend the definition for
"mil 111 to be all inclusive. Further, Petitioner argues that the definitions in Parts 55 and 56 only refer to the standards which contain "the
particular word defined and if such word is not used, its definition has
no relevance to the standard.
I accept the Petitioner's contention to the effect that the definition of the word "mill" as it appears in Parts 55 and 56 of 30 CFR is not
a declaration of the Secretary's policy on the enforcement of the Act
over milling facilities. The Secretary otherwise has indicated in the
interagency agreement between MSHA and the Occupational Safety and Health
Administration that he has retained jurisdiction over milling processes
and nothing in the agreement suggests that such jurisdiction is liinited
by the relationship of the plant to the pit. Federal Register, Vol . 45
No . 75 pg. 22,829, April 17, 1979. In the circumstances, I don't believe
that the definition of "mill" alone in the standards can be considered as
a general limitation· on the Secretary's authority to proceed under the Act.
If these definitions have any application, it is limited to the enforcement

2/

This argwnent is distinctly at odds with the position taken by the
Petitioner at the hearing and the discrepancy is pointed out by the
Respondent in its posthearing reply brief. I accept the position taken
by Petitioner in its posthearing orief as the considered view of the
Secretary.

1991

of the mandatory standards in Parts SS and 56 in which the word "mill"
appears. I have been unable to locate any standard in those parts, however , using the word "rail 1."
In this instance, MSHA has cited the Respondent, not for a violation
of any ~andatory standard uut for a violation of a section of the Act
itself. In light of the discussion above, I conclude that the definition
of tae word "mill" in Parts 55 and 56 is not related to tne charge and is
µ6t a li.:nitation on the autnority of tne Secretary to allege a violation of
/the Act.
}ioreover' even if the ":nill" definition should be construed as applicable and oinding upon the Secretary, r· would further conclude that nothing
in the definition woulci prevent tµe Secretary from proceeding against the
mill or plant operated by the Respondent. As the Petitioner observed in
its brief, the use of the word "includes," especially where all other tenns
defined are followed by the word ".:neans," clearly suggests that other facilities are included although not specified. The definition in otner words
is not all inclusive and, accordingly, the Secretary is free to apply the
law, as it does, to Respondent's mill.
Finally, the preposition "at" in the definition does not necessarily
require that a mill l:>e "on" the pit property. Webster's Dictionary defines
"at" in part as a·word used as a function word to indicate presence in,
on, or near: as the presence of the occurrance at a particular place.
Cases cited in Words and Phrases under "at" indicate that the preposition
"at" is commonly used as toe equivalent of near or about e.g., Jordan v.
Board ot Supervisors of Tulare County, 221 P.2d 977, 979 and Abernathy v.
~eterson, 225 P 132, 133.
In this instance the M-F plant or mill was
clearly near and also operated in conjunction with the pit even though not
contiguous.
In light of the above, I find that Respondent's M-F plant or mill 1s
subject to the provisions of the ~ct.
The charge is that Respondent by refusing entry to authorized representatives of the Secretary for the purpose of an inspection violated
section 103(a) of tne Act. This section authorizes inspections as follows:
"Authorized representatives of the Secretary * * * shali ;:nake frequent
inspections and investigations in coal or other mines each year * * *
[and] shall have a right of entry to, upon, or through any coal or other
mine."
Section 104(a) provides that an inspector shall issue a citation to
an operator violating the Act. It states in part:
If upon inspection or investigation, the Secretary or
his authorized representative believes tnat an operator of a
coal or other mine subject to this Act has violated the Act,

1992

or any mandatory health or safety standard, rule, order, or
regulation pr~~ulgated pursuant to this Act, he shall, with
reasonable pro,uptness, issue a citation to the operator.
With regard to penalties, section llO(a) provides that an "operator
of a coal or other mine in which a violation occurs of a mandatory standard
or who violates any other provision of this Act, shall be assessed a civil
penalty by the Secretary * * *." [Emphasis added.]
In view of such language it seems clear to me that a refusal of entry
to inspectors who seek to conduct an inspection of a mine constitutes a
violation of the Act for which civil penalties may be assessed.
There is no dispute about the facts on this record that the operator
did refuse entry to authorized representatives who sought to conduct an
inspection. Thus, I find that the operator did violate 103(a) of the Act,
as charged, and is subject to assessment for such violation.
Assessment
History of prior violations:
of prior violations.

The record contains no evidence

Appropriateness of penalty to the size of the operator: The
operator has 30-35 employees at its plant and office and three employees
at the pit (Tr. 16, 32). It produces 100,000 to 150,000 tons annually
(Tr. 37). I find this to be a small to medium sized operation.
Effect of the penalty: There being no contrary evidence, I find that
the penalty assessed will not effect the operator's ability to continue
in business.
Good Faith: I find that the operator, after it had determined its
legal liability, exhibited good faith in achieving rapid compliance by
admitting the inspectors. This happened within 24 hours of the refusal
of entry.
Gravity: I find this violation to be serious because the entire
effectiveness of the law depends upon access by inspectors for the making
of inspections.
Negligence:
I find only slight negligence because the Respondent
in good faith believed that it had a legal right, based on certain language
in Parts 55 and 56, to deny access to the inspectors.
Penalty: MSHA requests a penalty of $100 for this violation. I have
found the Respondent is chargeable only with slight negligence. It was in
effect seeking to establish a principle, which it was advised was valid~
for the refusal of entry. It is not clear that it would have obtained a
~earing on the issue without first refusing entry to the inspectors so as

1993

to establish a basis for review. Thus, this was in a sense a technical
violation. In these circumstances, it seems to me that only a nominal
penalty is warranted and I will assess a penalty of $10.
ORDER
It is ordered that Respondent pay the penalty of $10 within 30 days
of the date of this decision.

Franklin P. Michels
Administrative Law Judge
Distribution:
Marshall Salzman, Esq., Office of the Solicitor, U. S. Department
of Labor, 10404 Federal Building, 450 Golden Gate Avenue, Box 36017,
San Francisco, CA 94102 (Certified Mail)
Alex M. Byler, Esq., 222 S. E. Dorion Avenue, P. O. Box 218,
Pendleton, OR 97801 (Certified Mail)

1994

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

5203 Leesbu~g Pike
Falls Church, Virginia 22041

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

Civil Penalty Proceeding
Docket No. DENV 79-201-P
A.C. No. 48-00837-05001

v.
Bill Smith Mine
KERR-McGEE NUCLEAR CORPORATION,
Respondent
DECISION ON REMAND
Appearances·

Thomas E. Korson, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Richard F. Campbell, Esq., Oklahoma City, Oklahoma,
for Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine
Safety and Health Act of 1977. A hearing on the merits was held in
Denver, Colorado, on September 27, 1979, at which both parties were
well represented by counsel. After considering evidence submitted
by both parties and proposed findings of fact and conclusions of law
prof erred by counsel during closing argument, I ent.ered a detailed
opinion on the record. !/ It was found that the violation charged
in the withdrawal order did not occur. My oral decision, containing
findings, conclusions and rationale appears below as it appears in
the record:
"This is a civil penalty proceeding which arises under
the Federal Mine Safety and Health Act of 1977. The alleged
violation occurred some 20 days after that Act went into
effect.
The parties have been represented by competent counsel
who I commend initially for their complete and, I would
say, beyond the ordinary presentations in this case, and
in their demeanor, their preparation and their general
1/

Tr. 180-187.

1995

conduct of their respective actions and representations
in this case.
The parties have waived the right to file briefs.
There is a question whether the right to submit proposed
findings of fact and conclusions of law are made mandatory by the Administrative Procedure Act's provision in
the sense that the same can be insisted upon being put
in writing. My own view is that such should be given to
the discretion of the administrative law judge, but in
this case that issue is not being posed. I will not
make a specific finding to the effect that oral presentations sufficiently meet the APA requirements.
The issues in this case primarily are whether or
not a violation of the cited regulation, 30 CFR 57.3-20
occurred, and if so, whether the same resulted from
Respondent's negligence and whether or not such alleged
violation was serious.
Preliminarily, I find that based upon stipulations
submitted to me, that this is a large operator that
which during the time it was operating the Bill Smith
Mine, was producing approximately 243,000 tons annually
of coal, and that on or about the time of the alleged
violation it employed approximately 75 employees. Based
upon the evidence before me, I would not conclude that
this is one of the industry giants. On the other hand,
it is a large operator, to be distinguished from a small
or medium-sized operator in the context of a three-level
spectrum.
Also I find, based upon stipulation, that it has no
history of previous violations, or that it abated the
withdrawal order which contained the citation of the
violation alleged in good faith, meaning that it proceeded to rapidly achieve compliance with the standard
allegedly violated after being issued the withdrawal
order.
I finally find preliminarily that any proposed penalty I would make in this case would not affect the
Respondent's ability to continue in business.
Turning now to whether or not a violation did occur,
such
question revolves necessarily upon the construction which should be given the regulation allegedly violated. 57.3-20 provides, and I quote, "Ground support
shall be used when the operating experience of the mine,
or any particular area of the mine, indicates that it is

1996

required. If it is required, support, including timbering,
rock bolting, or other methods shall be consistent with the
nature of the ground and the mining method used."
As I will note more clearly subsequently, the second
sentence I find to be the critical one, and there are certain key words in that second sentence which, I believe,
govern this proceeding. I do not find the salient,
indeed critical, factual setting of this proceeding to
be in substantial dispute. There is no question is there
but that a rock fall did occur on March 29, 1978, and that
some 12 to 24 hours earlier blasting had occurred in the
general area on a prior shift.
I do find that the roof fall did occur in what is
termined an "open stope" area, and that Respondent's
mining methods were such th.at in open stope areas no
ground support was required.
I find that on March 29, this inspector, Gary Frey,
properly issued Withdrawal Order No. 338802, which is
the subject of this proceeding, and that the same was
issued prior to noon on said date, and further, that
the order was issued after Inspector Frey had observed
the area where the rock fall occurred, which observation occurred within moments or within minutes after
the fall.
I find that there were several pieces of rock which
fell, one of which went or weighed approximately 35 tons.
I find that the withdrawal order was properly issued;
since its purpose was to insure the safety of persons in
the area.
I find that in the area where the rock fall occurred,
which was generally in the intersection clearly indicated
on Exhibit R-1, and also shown clearly Exhibits P-1, 2, 3
and 4, had been supported by efforts on Respondent's part
by the use of bolts and wire mesh.
I do not find, on the basis of the testimony, that the
bolts used to support the ground in the area of the roof
fall had been used or were being used to slush from, as
demonstrated by Exhibit P-7. I note, parenthetically,
that while the purpose of P-7 was not to show the use of
the bolt as part of the slushing process, but merely to
show the process generally, that it does depict the same
and that it indicates that the sheave block was being
attached to such.·

1997

In finding that these bolts were not used as part of
the slushing process, I note that the inspector, on crossexamination, did indicate that, and I quote, "it could
have been that these bent bolts I saw were not used for
ground support and that the bent bolts which the inspector
did see lying on the ground after the roof fall, were only
one or two in number."
In any event, the inspector also indicated that roof
bolts which had been weakened or bent by use in the slushing process only "could have contributed to the rock fall."
On the basis of all the testimony, I am unable to
infer from the fact that a rock fall occurred that one,
there was some specific cause for the rock fall. I have
not found in this proceeding any evidence specifically
pointing to a direct approximate traumatic or other type
of cause; or two, that the rock fall would not have
occurred had other types of means of ground support been
employed by Respondent.
I recognize that such proof is difficult, if not
impossible, to obtain in those circumstances. To establish precise causes or even other evidence from which
inferences can be taken would have required a truly
indepth study by experts, I believe, after this rock
fall had occurred.
In any event, and I believe the bottom line with
respect to the use of the bolts and mesh methods,
vis-a-vis timbering; which would include use of the
stulls on the one hand or the square set timbering
method on the other, does not provide the ultimate key
to the resolution of this case.
I make the finding, since they were one of the more
blatant areas of dispute. The precise condition or practice described in the order then is that, "Adequate
ground support is not being utilized in the 203 pillar
stope access areas. A fall of ground occurred in the
front access, approximately 35 tons. Men were traveling through this area."
The question raised by the description qf the violation is, was there adequate ground support? The inspector
testified that there was, in his opinion, inadequate support because there was no timbering. He indicated that
had it been his decision, he would have used stulls. The
question then arises, is there any provision or regulation
that requires the use of timbering in the situation at the

1998

time and place involved in this proceeding? There is no
such provision in the Act itself. The regulation which is
cited, 57.3-20, consists of two sentences, the second of
which I will repeat again at this juncture for the purpose
of focusing on it. It states, "If it is required, support,
including timbering, rock bolting or other methods, shall
be consistent with the nature of the ground ari:d the mining
method used." Support includes timbering, rock bolting or
other methods. There is nothing in that provision which
says in a given situation a given type of support is
required.
I note that in the normal situation where roof control
plans are required, there is an effort to be more specific
in terms of the requirement. I think there should be such
a requirement in this case. I am sympathetic to MSHA's
position in this case; I think a dangerous situation was
occurring, and I do believe, from all the evidence, that
there was a certain looseness, indeed sloppiness with
respect to putting up signs in this area, in all the ways,
in all the accessways, and I believe there are loopholes
in the system here which could cause fatalities ultimately.
I think that the regulations are lacking in the type of
detail which is designed in the plans which must be
approved by MSHA and which can be changed and updated
periodically.
However, the binding prov1s1on is that which I above
quoted of the regulations. I construe it to do the following things: One, it gives the operator almost complete
discretion on which type of ground support to install in
a given situation. Two, the types of ground support
which it can utilize, and I underline this word, includes,
timbering, rock bolting or other methods. Three, that
whatever method it employs shall be consistent with the
nature of the ground and the mining method used.
The evidence here is that its mining method was open
stope, which would, one have required no ground support.
The only question which I see is whether "The nature of
the gr9und would require timbering of some kind." I am
unable, on the basis of the record in this case, to conclude that that nature of the ground which was identified
as sandstone, which in some places hard and some places
soft, is such to conclude that timbering would be
required. I therefore specifically find that that
is no basis upon which I can apply the regulation to
require the use of timbering. Even assuming there had
been sufficient evidence of the nature of the ground

1999

involved to require timbering and to prohibit rock bolting, the evidence that this area in question was an open
stope area is binding. I therefore conclude that there
is no violation of the cited regulation because of the
inadequacy of the governing law.
I make the findings and conclusions of law specifically, one, there is no provision of law nor any regulation which requires the use of timbering, including
the use of stulls or the square set timbeFing method,
in the area where the rock fall occurred; two, the
Respondent operator in this proceeding is not required
by the Act or the pertinent regulations to prepare and
submit for approval a ground support plan, particularly
one which requires timbering in the factual circumstances which are the subject of this proceeding.
Having found that no violation occurred, this proceeding is ordered dismissed."
The petition having no merit, this proceeding is dismissed.

$'7'~~4"~ft
Michael A. Lasher, Jr., Judge
Distribution:
Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of Labor, 1961 Stout Street, Room 1585, Denver, CO
80294 (Certified Mail)
Richard F. Campbell, Esq., Kerr-McGee Center, P.O. Box 25861,
Oklahoma City, OK 73125 (Certified Mail)

2000

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

;•.

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

Civil Penalty Proceedings
Docket No. WEST 79-173-M
A.C. No. 04-00551-05001

Petitioner
v.

Docket No. DENV 79-454-M
A.C. No. 04-00551-05002

EXCEL MINERAL COMPANY,
Respondent

Sheep Springs Pit & Mill
Docket No. WEST 79-174-M
A.C. No. 04-02964-05002
Excel Pit & Mill
DECISION
Appearances:

Judith G. Vogel, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Louis F. Fetterly, Esq., Los Angeles, California, for
Respondent.

Before:

Administrative Law Judge Michels

These proceedings were brought pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c. § 820(a), by
petitions for assessment of civil penalties filed by MSHA. Timely answers
were filed by the Respondent in general denying the allegations and
requesting a hearing. The cases were heard in Bakersfield, California, on
October 30, 1979. A decision was made from the bench a~ ~o each citation
in these three dockets except for one in which decision was reserved.
These are hereby reduced to writing pursuant to 30 CFR 2700.65(a). Some
corrections or clarifications have been made.
Preliminarily, the Petitioner requested dismissal of Citation No. 371373
in Docket No. DENV 79-454-PM. There being no objection, the petition was
dismissed as to this citation with prejudice (Tr. S). This ruling is
amended by further vacating Citation No. 371373 and as so amended, it is
affirmed.
Also pending was a motion to dismiss Citation No. 371370 in Docket
No. WEST 79-173-M and Citation No. 371359 in WEST 79-174-M. There being
2001

no objection, this motion was granted and the petitions dismissed as to
these citations with prejudice (Tr. 5). This ruling is amended by further
vacating Citation Nos. 371370 and 371359 and as so amended is affirmed.
Findings on Certain Criteria
Findings, based on stipulations were made as to certain generally
applicable criteria as follows: "* * * I find as stipulated, that there
is no history of prior violations. I further find that this is a small
operator as stipulated. I further find that the penalties to be [assessed]
here will not impair the operator's ability to continue in business"
(Tr. 8).
It was further found that the Sheep Springs Pit and Mill and the Excel
Pit and Mill were engaged in commerce and are subject to the jurisdiction
of the Mine Safety and Health Review Commission (Tr. 8).
WEST 79-173-M
Citation No. 371370 - Vacated
Citation No. 371375
The following is the bench decision on this citation found at pages
43-46 of the transcript:
THE COURT: * * * This is my decision on citation
number 371375: The condition or practice as alleged by the
inspector is as follows: Quote, "The trailers at the docks
were not all blocked from moving. Wheel chocks were available on chains secured to the docks.· Loading of trailers
with forklifts is a continuous operation."
The inspector cited the regulation or mandatory.standard
number 55.9-37. That reads as follows: Quote, "Mobile
equipment shall not be left unattended unless the brakes are
set. Mobile equipment with wheels or tracks, when parked on
a grade, shall be either blocked or turned into a bank or
rib; and the bucket or blade lowered to the ground to prevent
movement."
The first finding required is that of the fact of vio-·
lation. In this instance, the inspector testified that he
observed two trailers which were free-standing and which were
not chocked or blocked. There's testimony that -- to the
effect that the trailers were blocked. But in this instance,
I accept the testimony of the inspector that there were two
non-blocked trailers.

2002

The portion of the standard cited by the inspector is
the second.sentence. And this, as noted when I read it,
requires that it be both mobile equipment and that it be
parked on a grade. So far as whether or not this is mobile
equipment, the testimony of the inspector is that it is in
that category, and I accept his testimony.
I have to admit that I have some difficulty with that
since it seems to me that it is at least partially immobile
and not a piece of mobile equipment in the sense of a tractor
or a drag line or some other similar kind of equipment.
Nevertheless, I do find that it was mobile.
That brings me, then, to the point as to whether or not
these trailers were on a grade. In spite of the fact that
the inspector did indicate there was a slight or possible
one percent grade, which I accept, I find that it is not a
grade within the meaning of this regulation.
Further, the inspector did testify that it was "more
level than anything." In my view, it would be difficult to
find a place on the earth that is absolutely level like a
billiard table. And so, accordingly, the regulation could not
have meant that. It surely meant, or means, a grade of some
significance so that if the equipment does begin to roll, it
will keep rolling.
In this case, as I have already indicated, it was a
relatively minor grade. So far as I could understand from
this testimony, the effect of a trailer on this minor or one
percent grade would be little different from that on a leval
grade when pushed.
Accordingly, my finding is that there has been no proof
of a violation of this mandatory standard as charged~ The
citation is hereby vacated and the petitioner dismissed as
to that citation.
I think it might be appropriate to add the comment that
even though the standards do not literally seem to require
chocking in that situation, I do not intend to mean by my
decision that that practice of blocking or chocking those
wheels isn't a good practice. There was testimony, and I
would accept that, that there is always the possibility of
the pushing of these machines, even though they are not on a
significant grade, and therefore the possibility of danger
and a hazard. My finding is only that it is not covered by
this specific regulation.
That completes, then, my decision.

2003

This decision is hereby affirmed.
Docket No. WEST 79-174-M
Citation Nos. 371343-371347 and 371349-371351
These citations all concern Respondent's prescreening plant which was
built out of used. equipment (Tr. 154). These were consolidated for decision at the Respondent's request so that consideration could be given to
the issue comprehending all of the citations of whether the prescreening
plant was under testing procedures at the time the citations were issued.
The oral decision from the bench on the listed citations, which in
general cover the alleged lack of guards or handrails, is contained in the
transcript at pages 189-199 and is as follows:
My decision on these seven citations will follow. For
the purpose of the record, this concerns the following
citation numbers: 371343, - 344, ~345, -346, -347, -349,
-350 and -351. I don't believe that I will be able to decide
these cases on an absolutely consolidated basis. But I would
take the principal argument, or a principal argument you made
first and dispose of that. That is, whether or not this was
in a so-called testing posture.
My remarks on that would be then applicable to each
citation.
The record will show that the testimony is in some dispute on this issue. The inspector has a clear view to the
effect that this is not, quote, "Testing," unquote, for the
reasons that it involved a prescreening plant that was in
operation over a long period of time, and it did not involve
the testing of a particular part of that plant on a limit~d
basis, that is, where the screen or guard would simply be.
taken off, or handrail, also, and when the particular repair
or testing is done, replaced. On the other hand, we do have
the testimony of Mr. Rutledge, who contends that the plant
was in what I would think of as a start-up posture. It was
composed of used machines that were put together and assembled, apparently over a relatively long period of time, and
according to his testimony, it was not until May and June
that any appreciable production occurred. His view was that
this was testing.
Now, one of the little technical or legal problems here
is that I don't believe that any of the sections cited
specify removal for testing.in so many words. And so far as
railings are concerned, I'm not even sure there's anything
in the regulations at all that would contemplate that kind
of an exception.

2004

Now, when it comes to guards, we do have one statutory
standard; which is 56.14-6, which says, "Except when testing
the machineryguards shall be securely in place while
machinery is being operated."
·
Now, I suppose, and I don't believe it's been really
seriously disputed here that insofar as a guard is concerned,
at least, under 56.14-1, that there could be removal for that
testing purpose. In other words, 56.14-6, in a sense, modifies 56.14-1. And I don't believe there's any dispute on
that. [Reference to Part 56 corrected to refer to Part 55.
See below.]
My finding would be on this that I would conclude as a
general matter that this would not be what I would refer to
as testing. I appreciate that there were problems in this
start up over a period of time that might have dictated
certain kinds of procedures that you wouldn't normally expect
in a fully operational plant. And to an extent, I'm going to
take that into account.
However, for many of the violations, there were no
screens, there were no guards. The inspector saw none, even
in the areas. And in some it was admitted that the guards
had not been made for the particular pulley or screen, whatever it may have been. So it did mean that over a relatively
long period of time, that is, several months, even though it
was not fully operational, it was in operation, and certain
employees, apparently only two for the most part, were
subjected to those hazards.
In short, it was not the situation where a screen or a
guard would be taken off temporarily for some particular repair
or t~st and then placed back on, but it was more, in.my view,
of an operational situation in which there were really no -at least in some instances, no guards or railings supplied.
So for that reason, I would reject that particular
general argument.
Now, I will take each one -- or at least some of them
one by one. * * * The first citation in this group is 371343.
The inspector·charged here, quote, "There was no handrail at
the head pulley end of the walkway of the number one conveyor
in the pit to prevent persons from falling about 20 feet to
the ground below." He charged a violation of 55.11-2.

2005

I should interject at this point that I have been
improperly referring to the 56 series. However, the regulations~ I believe, are exactly the same in both 55 and 56 as
regards these particular standards. But I would like the
record to be corrected on that point.
To continue, 55.11-2 reads, quote, "Crossovers, elevated
walkways, elevated ramps, and stairways shall be of substantial construction, provided with handrails, and maintained
in good condition. Where necessary, towboards shall be provided,". There's no dispute in the testimony that there was
no handrail at the end of the walkway. There is no dispute
that this was a walkway. It did have a handrail for the full
length except for the end where it was missing. The walkway
was some 20 feet off the ground. The testimony of Mr. Gibbs
is that this handrail at the end was removed for the purpose
of doing some maintenance repair work on the conveyor. His
notes showed that it had been removed -- or that work had
been done on this part of the conveyor on the 11th and 12th
of July. The citation was issued on July the 19th, which is
almost seven days later.
There's also testimony that the particular repair could
not be accomplished with the rail in place. This testimony
-- that was by Mr. Gibbs. And this testimony was disputed
by Mr. Drussell. There was also the testimony of Mr. Gibbs
that the plant was not in operation at the time.
This is an example, I think, of an instance in which
the standards are mandatory, and· they really don't provide
any particular exceptions. It did result in a hazardous
situation.
There is, furthermore, dispute that this [rail] needed
to be removed for the repair. Mr. Drussel testified that he
did not understand why it had to be removed. Moreover, it
seems that some temporary type of protection could have been
provided if, in fact, it was necessary to remove that section
of the rail. It is my impression from the evidence that this
was too long a period of time to be considered in the context
of a temporary removal for an immediate repair, because it
appears that it had not been worked on for at least seven
days. I think in all those circumstances, I have really no
alternative except to find that this is contrary to that
standard.
So I find a violation of 30 CFR 55.11-2.
The following covers my findings on the criteria: It
is clear that the removed rail was readily visible, and so

2006

therefore it should have been known to the operator. On
this, as well as all of these violations, I 1m going to find
less than ordinary negligence because of the complications
of the start up. In other words, there is testimony that
the employees of the operator did not believe they were violating any law because they thought they were in a testing
posture. So I will take that into account on this as well
as the others.
I belieye this is a serious violation, because if there
should be an accident and somebody should fall from that
height, it could be a serious injury. So I find it to be
a serious violation.
It was abated, according to the testimony, within the
time set by the inspector, and I so find. Taking all of
those factors into account, I hereby assess a penalty of
$25 for thi~ violation.
The next citation is 371344. The inspector charged,
quote, "There was no stop cord or railing along No. 1
conveyor in the pit, to prevent falling on the conveyor and
being carried along it to the end where it emptied into a
vibrating screen." He charged a violation of 30 CFR 55.9-7.
That standard reads, quote, "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords
along their full length." My finding on the fact of violation is as follows: The inspector testified that on the
number one conveyor there was no protective guard along the
walkway between a person walking on that walkway and the
conveyor; and further, that there was no stop device. This
testimony is disputed by Mr. Gibbs, who testified that there
was a screen in place along that walkway. And a picture was
put in evidence, identified R-1, which shows such a screen.
However, it is clear that that picture was taken long after
the citation was issued.
On this citation, there's a 100 percent difference on
the question of whether or not a screen was in place. It's
difficult for me to find any way to determine who exactly
may have been right and who may have been wrong. A screen
as shown by the picture is something that could hardly be
overlooked. Yet, the two witnesses in good faith, I assume,
testified exactly the opposite about the existence of that
screen. If a screen did exist, I think it's clear there was
no violation. There are some factors here which suggest to
me that possibly I should accept the inspector's testimony.
But about the only one that is worth mentioning would be the
fact that there were other screens and guards not in place.
But I don't know that that's sufficiently strong to overcome
the testimony that there was a screen in place.

2007

In such a situation as this, I sometimes go back to the
principle that the burden of proof is on the government by
a preponderance of the evidence where there is really no
way to make a determination between the two e:Xactly opposite
pieces of testimony. I would have to conclude that the
government did not carry its [burden of proof as] required.
And I would like to make clear, however, that that does
not mean that I did not consider the inspector's testimony
credible, but Mr. Gibbs was credible, also. And I believe
that they both testified in good faith as to what they saw,
and for some reason they saw different things. And so I
would just rely on the burden and find in this instance no
violation.
Accordingly, as to citation 371344, the citation is
vacated and the petition is dismissed as to that citation.
I'm going to try to handle, to speed this up, the
following set of citations in a group: That is, 371345,
371346, 371347, 371349, and 371350. In each of these citations, the inspector charged for particular designated
machines that the drives, pulleys, or other turning devices
were not guarded. I will just read the first one as an
example. Quote, "The V-belt drives on the vibrating shaker
screen in the pit were not guarded to prevent getting caught
in the pinch points or contacting the moving pulleys 11 '
[Petitioner's Exh. P-4]. In each of these cases, the charge
is that it was a violation of mandatory standard 55.14-1.
That is of 30 CFR. That standard reads as follows: Quote,
"Gears, sprockets; chains; drive, head, tail, and take up
pulleys; fly wheels; couplings; shafts; saw blades; fan
inlets; and similar exposed moving machine parts which may
be contacted by persons and which may cause injury to
persons shall be guarded."
The other citations are similiarly worded, except that
they refer to different drives or pulleys.
In each of these cita~ions, there is no question and
no dispute that the proper guards were not in place. There
were circumstances which were offered as a defense in
several of the instances, which I will take up. But so far
as the evidence is concerned, it do~s show that the guards
as required were not in place.
In each instance, the inspector testified that he did
not see any evidence of ~he guards and he did not know nor
did he see any evidence as to how long they had been off.
In some instances, it is clear that there were no guards at
that time available for some of the devices.

2008

In looking at my notes as to the testimony, it appears
to me that it is only in the case of 371345 that there was
a general defense offered other than the defense of testing.
And in that case, Mr. Gibbs testified that there was .a bad
bearing, and he wasn't sure which side the bearing was on.
He had the guard off, according to his testimony, in order
to make the necessary tests to determine which bearing was
faulty.
His testimony was that the V-belt drive of the vibrating shaker had been run with the guard off for a day or
more. He further claimed that this was necessary to make
the tests or measurements required.
In this instance I will accept Mr. Gibbs' representations and conclude th~t there was a specific testing situation in which the guard was removed for a purpose while
testing. So,accordingly,as to 371345, I hereby vacate that
citation and dismiss the petition as to that citation.
So far as the other citations are concerned [i.e.,
371346-371347 and 371349-371350], I believe that,-in fact,
a violation has been proved. And I so find. In each case
the inspector testified that the operator knew or should
have known because the lack of guards was easily visible.
And I so find. He further testified to the fact that in
each case it was a hazard. And I find, therefore, that the
violations were serious.
In each case, the evidence is that the violatiQns were
abated in good faith within the time set by the inspector,
and I so find. I would supplement my finding on negligence
somewhat by stating as I did before, that for each of these
I find less than ordinary negligence because of the circumstances mentioned heretofore.
For each of the four violations which were proved, I
will assess a penalty of $40.
The remaining citation in this group is 371351. In
this instance, the inspector charged, quote, "The work
platform at the balance wheel of the shaker screen in the
pit was not provided with handrails." He charged a violation of 55.11-27. This standard provides as follows:
Quote, "Scaffolds and working platforms shall be of substantial construction and provided with handrails and
maintained in good condition." That is the end of the
quotation on that part of the standard which is relevant
to the citation.

2009

The evidence is clear and it is admitted that there
were no handrails. In this instance, a work platform was
prepared of approximately two by four feet for the purpose
of installing a bearing on the shaker screen. This platform
was ten or more feet off the ground. Mr. Gibbs testified
that he considered it a hazard to have a handrail on that
platform in that if the balance wheel popped off it might
crush him. He also testified that though safety belts were
provided, he did not wear [one].
Mr. Drussel testified that in his view i f safety procedures had been employed in the removal of that bearing,
that the hazard referred to should not have occurred; that
in any event, without the rail, there was a hazard either way,
either being crushed or being thrown over and subjected to
that long fall.
In this instance, I am going to accept Mr. Drussel's
testimony that proper procedures would have eliminated, or
at least mitigated, the particular hazard of the counterweight, I believe it was called.
In the case of this standard, it's relatively a rigid
requirement that if you have a work platform, it must have
a railing. And it does not actually allow for exceptions.
I think in some circumstances it may be that there would
be conditions where it should not be required. But I
don't believe that we're faced with that here.
So I find, therefore, that there was a violation of
20 CFR 55.11-27.
The findings on the criteria are as follows: It was
easily visible from the ground, and therefore there was some
negligence because it should have been observed. I find
less than ordinary negligence, for the reasons previously
indicated. It was a clear hazard. Working on a platform of
that nature without a belt could have resulted in serious
injury to an employee falling therefrom. So as far as abatement is concerned, it was abated in good faith within the
time set by the inspector. And I so find.
I hereby assess a penalty for this violation of $40.
That completes the decision on the series of citation relating to the prescreening plant.
This decision as to Citation Nos. 371343-371347 and 371349-371351 is
hereby affirmed.

2010

Citation No. 371348
This citation was decided orally from the bench.
tained in the transcript pages 212-214 follows:

The decision con-

THE COURT: This is my decision in citation 371348: In
this citation the inspector charges as follows, quote, "There
was no berm or guard rail along the outside edge of the haul
road from the loading area under the mill in the pit." The
charge is 30 CFR 55.9-22. This reads as follows: "Berms or
guards shall be provided in the outer bank of elevated roadways." On the fact of violation, first, it is clear, there
is no dispute this was an elevated roadway. The standard is
mandatory. It does require a berm. There has been testimony
that such berms too high could be unsafe. It would not be
appropriate for me, I believe, to decide that issue here.
The issue was decided when [the Secretary] issued the regulation. There are provisions for variances or waivers or
modifications of the applications of these rules. And if it
does not apply or suit in a particular situation, that would
be the appropriate procedure. Otherwise, the regulation or
the standard is applicable.
Now then, there has been the argument -- the argument
was made, rather, that there were berms there, they just
weren't of the height of what the inspector required. I
think the evidence shows that there were berms in some areas,
or ridges up to possibly ten inches. The inspector testified
that that was not sufficient. It seems to me that a fair
reading of that standard would require adequate berms. There
might be some dispute as to what the height actually should
be to be adequate. But I think we could safely say that
ten inches is so small that it perhaps would be a little more
than no berm at all where you're dealing with larger vehicles.
So accordingly, I would hold that there was no berm in
those areas as required by the standard. I do find a violation, therefore, of 30 CFR 55.9-22 as charged.
I find that the operator was ordinarily negligent,
because it knew or should have known that an adequate berm
was needed. Insofar as the hazard is concerned, or the
seriousness, I accept the inspector's testimony that a truck
could go over the edge and cause death or serious injury to
an employee without the berm. Accordingly, I find that this
violati9n was serious.
I find that, finally, it was abated with good faith
within the time set by the inspector.

2011

On this violation I assess the penalty sought by the
MSHA, which in this instance is $44. I assess that amount.
That completes the decision.
This decision is hereby affirmed.
Citation No. 371360
The decision on this citation was reserved because of the issue raised
as to the jurisdiction of the Secretary over this particular facility.
The inspector charged as follows: "The operator of the dragline at
the ponds was not protected from contacting the moving cable drums and
brake assembly or getting caught by the cable as it wraps on the drums
while he operated the machine from the operator's seat." This condition
was alleged to be a violation of 30 CFR 55.14-1 which is quoted under a
previous citation above. It requires, in brief, that exposed moving
machine parts which may cause injury be guarded.
The machine against which the citation was issued is a dragline
operated at ponds of water at the main processing plant. It is used to
drag the silt out of settling ponds (Tr. 214-217). The machine is located
about 9 miles from the pit (Tr. 225). Respondent argued on the record
that the operation of taking silt out of the ponds at the mill could not
be construed as "mining." Subsequently, on November 15, 1979, Respondent
filed a motion withdrawing its contention of a lack of jurisdiction.
I hereby find that the milling facility is subject to the Act and the
regulations based on the legislative history, the plain language of the
Act, and applicable precedents. For & full discussion of this issue, see
my decision in Ready Mix Sand & Gravel Company, Inc., Docket No.
WEST 79-66-M , issued December 5, 1979.
There appears to be no dispute that the machine drums and brake
assembly were not fully guarded. The inspector testified that the machine
may have had a small screen over some of the parts, but was not guarded as
to the main moving parts (Tr. 215). Robert Hurst, employees' personnel and
safety supervisor, testified that while he was not there. on the day of the
citation that the drums have three-quarter guards which were factory
installed (Tr. 221). He admitted parts of the drums were still exposed
(Tr. 222).
I find that moving machine parts were not guarded in that they were
not adequately or completely covered ~nd that this created a hazard to
employees working in the area. I find therefore a violation of 30 CFR
55.14-1 as charged.
My findings on the criteria are as follows: This was a serious violation because an operator of the machine could get caught in the moving
parts resulting in the probable loss of an arm or hand (Tr. 216). The

2012

operator was responsible for some negligence. There is evidence to the
effect that the.lack of guards might have been difficult to observe from
ground level. However, this condition would have been readily observable
on a regular inspection of the machine. Because the machine was an older
model which, according to the testimony, did not have full guards installed
at the factory, the degree of negligence is somewhat lessened.
In all the circumstances, I assess a penalty of $45 for this violation.
DOCKET NO. DENV 79-454-PM
Citation Nos. 371371-371374
Under this docket Citation No. 371373, at Petitioner's request, was
dismissed. As to the remaining citations the parties negotiated a settlement which was approved. Citation No. 371371 assessed originally at $66
was settled for $40; 371372 previously assessed at $72, was settled for
$45; and 371374 assessed by the Assessment Office at $52 was settled for
$40. The decision from the bench approving the settlement of these citations follows:
THE COURT: I would note in connection with that stipulation that the parties have entered into a settlement for
these citations. The first two, namely 371371 and 371372,
both involve the standard 30 CFR 55.14-1. This is the same
mandatory standard that was dealt with in other dockets.
There it was my view that the penalty of, I believe it was,
$40, was appropriate in all of the circumstances. There may
be some different circumstances here, but looking at the
total picture, I conclude that the settlement of respectively
$40 and $45 is appropriate and I accept that.
So far as 371374, the reduction has been from $52 to $40.
This d,aes not appear to me to be an excessive reduction, and
for the reasons stated by Counsel, I accept that as appropriate in the circumstances. Accordingly, that disposes of
the three remaining citations.
This decision is hereby affirmed.
A summary of the dispositions in the captioned proceedings follows:
DOCKET NO. WEST 79-173-M
Citation No.

Assessment or
Other Disposition

371370
371375

Vacated
Vacated

2013

DOCKET NO. WEST 79-174-M
Citation No.

Assessment or
Other Disposition

371343
371344
371345
371346
371347
371348
371349
371350
371351
371359
371360

$ 25.00
Vacated
Vacated
$ 40.00
$ 40.00
$ 44.00
$ 40.00
$ 40.00
$ 40.00
Vacated
$ 45.00
DOCKET NO. 79-454-PM

Citation No.

Assessment or
Other Disposition

371371
371372
371373
371374

$ 40.00
$ 45.00
Vacated
$ 40.00

Total assessment for all dockets:

$439.00

ORDER
It is ORDERED that Respondent pay total penalties of $439.00 within
30 days of the date of this decision.

~~/?~
Franklin P. Michels
Administrative Law Judge
Distribution:
Judith G. Vogel, Esq., Office of the Solicitor, U.S. Department of
Labor, 450 Golden Gate Ave., Rm, 10404, San Francisco, CA 94102
(Certified Mail)
Louis F. Fetterly, Esq., Suite 718, Pershing Square Bldg.,
448 S. Hill St., Los Angeles, CA 90012 (Certified Mail)

2014

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

, .·,
' ..

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

·-'
~

Civil Penalty Proceeding
Docket No. WEST 79-248-M
A/O No. 02-00840-05003
Oracle Ridge Project

ORACLE RIDGE MINING PARTNERS,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
Department of Labor, for Petitioner MSHA;
Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C.,
Phoenix, Arizona, for Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed
under section 110 of the Act by the Secretary of Labor, Petitioner, against
Oracle Ridge Mining Partners, Respondent.
This case was duly noticed for hearing and heard as scheduled on
October 22, 1979.
At the hearing, the parties agreed to the following stipulations:
One, the operator is the owner and operator of the subject mine; two, the operator and the mine are subject to the
Federal Mine Safety and Health Act of 1977; three, I have
jurisdiction of this case; four, the inspector who issued
the subject citation was a duly authorized representative of
the Secretary; five, a true and correct copy of the subject
citation was properly served upon the operator; six, a copy
of the subject citation is authentic and may be admitted into
evidence for purposes of establishing its issuance, but not
for truthfulness or relevancy; seven, the operator is small
in size; eight, the operator's previous history is in the
range of low to moderate; nine, the imposition of any penalty will not affect the operator's ability to continue in
business; ten, the alleged violation was abated in good faith
(Tr. 4).

2015

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-58). At the conclusion of
the taking of evidence, the parties waived the filing of written briefs,
proposed findings of fact, and conclusions of law. Instead, they agreed to
make oral argument and have a decision rendered from the bench (Tr. 58). A
decision was rendered from the bench setting forth findings, conclusions,
and determinations with respect to the alleged violation (Tr. 62-65).
Bench Decision
The bench decision is as follows:
This case is a petition for the assessment of a civil
penalty filed under Section 110 of the Act.
The alleged violation is of 30 CFR 57.6-20 (c) which
directs that magazines shall be constructed substantially of
noncombustible material or covered with fire resistant
material. In addition, 30 CFR 57.2 states that "substantial
construction" means construction of such strength, material,
and workmanship that the object will withstand all reasonable
shock, wear, and usage to which it will be subjected.
The subject citation recites that an explosive magazine
and a detonator magazine were not constructed of substantial
material, but were constructed of aluminum sheeting.
The operator's first contention raised at the hearing is
that the definition of "substantial construction" in section
57.2 does not apply to section 57.6-20(c). In the operator's
opinion, it is sufficient under section 57.6-20(c) if the
magazines have been substantially constructed of noncombustible material or covered with fire resistant material without
regard to whether they can withstand reasonable shock, wear,
or usage. From the Bench, during the course of the hearing,
I rejected the operator's position. The definition in 57.2
appears at the outset of part 57 and plainly all the definitions are intended to apply to the entire part.
The fact that 57.6-20(c) speaks in terms of "constructed
substantially" instead of "substantially constructed" makes
no difference. To adopt such an approach would make form
master over substance. Even more importantly, under such an
approach, a magazine would be acceptable if it were wholly
flimsy so long as its inadequate materials were made of noncombustible materials or covered with fire resistant materials. I cannot read the regulations in a way that would
make them meaningless and nonsensical. Accordingly, I
conclude section 57.6-20(c) must be applied together with the
definition in section 57.2.

2016

According to both the inspector and one of the operator's witnesses, the two magazines were constructed of aluminum sheeting l/16th of an inch thick. The detonator magazine
also was lined with 3/4 inch plywood. The magazines were
located in cutouts in the side of the mountain. The inspector
believed that a rock could fall on the top of the magazines,
pierce the aluminum, and set off the detonators. The operator's witnesses believed such an occurrence was very unlikely
because of the way the magazines were set back into the hill.
The sincerity of the operator's witnesses was apparent and I
am cognizant of it. However, after due consideration, I
believe the inspector's testimony must be accepted. I further
believe that the circumstances presented fall within the terms
of "reasonable shock, wear, and usage" to which the magazines
would be subjected. Accordingly, I find a violation existed.
I find the violation was serious. If a rock dislodged,
a detonator could be ~et off. I further find that the operator was negligent in allowing this situation to exist.
In accordance with the stipulations of the parties,
which I accepted at the outset of the hearing, I find that
the operator was small in size, that its prior history was
in the low to moderate range, that its ability to continue
in business will not be affected by the imposition of any
penalty and that the violation was abated in good faith.
Based upon the foregoing, and particularly in light of
the operator's small size, a penalty of $122.00 is assessed.
ORDER
The foregoing bench decision is hereby, AFFIRMED.
The operator is ORDERED to pay $122 within 30 days from the date of
this decision.

Assistant Chief Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department
of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, CA
94102 (Certified Mail)
Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C.,
363 North First Avenue, Phoenix, AZ 85003 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety & Health,
U.S. Department of Labor
Standard Distribution

2017

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

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

Civil Penalty Proceeding
Docket No. WEST 79-67-M
A/O No. 02-00156-05004

v.
New Cornelia Branch
PHELPS DODGE CORPORATION,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
Department of Labor, San Francisco, California, for
Petitioner MSHA;
Stephen w. Pogson, Esq., Evans, Kitchel & Jenckes, P.C.,
Phoenix, Arizona, for Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed
under section 110 of the Act by the Secretary of Labor, Petitioner, against
the Phelps Dodge Corporation, Respondent.
This case was duly noticed for hearing and heard as scheduled on
October 22, 1979.
At the hearing, the parties agreed to the following stipulations:
One, the operator is the owner and operator of the subject mine; two, the operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of
1977; three, I have jurisdiction of this case; four, the
inspector who issued the subject citation was a duly authorized representative of the Secretary; five, a true and correct
copy of the subject citation was properly served upon the
operator; six, copies of the subject citation may be admitted
into evidence for purposes of establishing issuance, but not
for the purpose of establishing truthfulness or relevancy;
seven, the operator has a small history of violations and
there were only six paid violations in 1978; eight, the operator is large in size; nine, imposition of a penalty in these
proceedings will not affect the operator's ability to continue
in business; ten, assuming the violation existed, said violation was abated in good faith.

2018

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-62). At the conclusion of
the taking of evidence, the parties waived the filing of written briefs,
proposed findings of fact, and conclusions of law. Instead, they agreed to
make oral argument and have a decision rendered from the bench (Tr. 61-62).
A decision was rendered from the bench setting forth findings, conclusions,
and determinations with respect to the alleged violation (Tr. 66-70).
Bench Decision
The bench decision is as follows:
This case is a petition for the assessment of a civil
penalty under section 110 of the Act. The alleged violation
is of 30 CFR 55.9-2. This section provides that equipment
defects affecting safety shall be corrected before the equipment is used.
The MSHA inspector who issued the subject citation testified that all the lug nuts on the No. 149 truck were loose.
Another inspector who accompanied the issuing inspector testified to the same effect. The inspectors testified that
they touched and felt all the lug nuts and that all were
loose. Both inspectors further testified that the truck was
in the service area where it was being refueled. According
to the inspectors, the serviceman fired the truck up so that
the truck would have gone back into service after being
refueled with the loose lug nuts present and uncorrected, had
a citation not been issued. I find the testimony of the
inspectors especially detailed, clear and consistent on all
the circumstances surrounding the subject condition.
The operator's witnesses testified that less than all
of the lug nuts were loose, although it is not exactly clear
from their testimony just how many they believed were loose.
I recognize the testimony of the operator's mechanical
foreman, that if all the lug nuts were loose the tire would
be flat or partially flat, but the record has no showing how
soon this would occur. Moreover, I accept the testimony of
the issuing inspector that when the truck drove into the
subject area, the inspector himself was on the opposite side
from the affected wheel and that therefore he would not have
seen the wheel and the tire at that time.
In any event, I find more persuasive and accept as completely credible the testimony of the inspectors that all
the lug nuts were loose. I also accept the testimony of the
inspectors that because the lug nuts were loose, the wheel
could come off and proper braking might not occur. This,
obviously, was not safe. This condition, together with the

2019

fact that after refueling the truck the serviceman fired it
up so that it would have gone back into service, constitutes
a violation of 30 CFR 55.9-2.
I further conclude that the No. 149 vehicle was not out
of service. Even the operator's witnesses testified that it
was being refueled in the event that it should be used again.
The former Board of Mine Operations Appeals of the Department
of Interior held that where equipment was under repair and
had not been used and was not going to be used until it met
and satisfied all the mandatory standards, no violation
occurred. Plateau Mining Company, 2 IBMA 303 (1973) and
Zeigler Coal Company, 3 IBMA 366 (1974). Under the provisions of the 1977 Act, the decisions of the former Board
remain binding upon the judges until specifically overruled
by the Commission. _However, it is my opinion that the
Board's prior rulings have no applicability here. I have not
overlooked the argument of operator's counsel that there were
plenty of trucks so that the No. 149 would not have to be
used. The difficulty I have with this argument is that the
evidence does not show it. If the truck did not have to be
used and if in fact it had been completely removed from
service, there really was no reason to refuel it.
The testimony regarding the hazards already set forth
also show that this was a serious violation. Even the
operator's pit mechanical foreman, who himself found two
loose lug nuts, found them together which he said was more
serious than if they had been spaced apart. In any event,
as I have found, all loose lug nuts existed which presented
a very serious violation.
I further determine that the operator was negligent in
allowing this condition to occur. The operator is responsible for the actions of its serviceman in refueling the
truck and in preparing to allow it to return to service.
Even more importantly, the maintenance procedures followed at
the time were deficient. The fact that after this citation
was issued the serviceman in this area was given a wrench to
tighten loose lug nuts instead of merely reporting them and
waiting for repair equipment to arrive from elsewhere shows
that the procedure operative when this citation was issued
was defective and dangerous. The operator was negligent.
As set forth in my opening statement, I accept the
stipulations of the parties to the effect that the operator
is large in size, that the imposition of a penalty here will
not affect the operator's ability to continue in business,
that the violation was abated in good faith, and that the
operator has a small history of prior violations.

2020

In determining the amount of penalty to assess, I am
especially mindful of the operator's small history of prior
violations to date, because this is, in my opinion, a serious
violation.
Accordingly, a penalty of $125.00 is assessed.
ORDER
The foregoing bench decision is hereby, AFFIRMED.
The operator is ORDERED to pay $125 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department
of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, CA
94102 (Certified Mail)
Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C.,
363 North First Avenue, Phoenix, AZ 85003 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety & Health,
U.S. Department of Labor
Standard Distribution

2021

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

Contest of Citation

LESLIE COAL MINING COMPANY~.
Contestant

Docket No. PIKE 78-400

v.
Citation No. 069563
May 30, 1978

SECRETARY _OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION Q1SHA),

Preparation Plant
Respondent

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

Civil Penalty Proceeding
· Docket Nos.

Assessment Control Nos.

Pe ti.ti.oner
PIKE 79-90-P
PIKE 79-91-P

v.
LESLIE COAL MINING COMPANY'·
Respondent

15-09724-03001
15-09724-03002

Preparation Plant

. 'DECISION
Appearances:

John M. Stephens, Esq., Stephens, Combs & Page, Pikeville,
Kentucky, for Contestant;
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
Department of Labor, for Respondent Secretary of Labor;
Mary Lu Jordan, Attorney, Washington, D.C., for
Respondent United Mine Workers of America.

Before

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued June 14, 1979, as amended July 19,
1979, and August 14, 1979, a hearing in the above-entitled consolidated proceeding was held on October 3 and 4, 1979, in Pikeville, Kentucky, under
Section 105(d) of the Federal Mine Safety and Health Act of 1977.
The consolidated proceeding involves a notice of contest of Citation
No. 069563 filed on June 30, 1978, by counsel for Leslie Coal Mining Company
and two Petitions for Assessment of Civil Penalty filed' by counsel for MSHA
on January 31, 1979, in Docket Nos. PIKE 79-90-P and PIKE 79-91-P seeking
as.sessment of civil penalties for 13 and 12 alleged violations, respectively,
of the mandatory health and safety standards by Leslie Coal Mining Company.

2022

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.)
Among other alleged violations, the Petition filed in Docket No.
PIKE 79~90-P seeks assessment of a penalty for the violation of Section
103(£) of the Federal .Mine Safety and Health.Act of 1977 alleged in Citation
No. 069563 which. is the subject of the contest of citation filed in Docket ·
No. PIKE 78-400.
The first day of the hearing held on October 3, 1979, was devoted
exclusively to the introduction of evidence.by counsel for contestant, MSHA,
and UMWA with respect to the notice of contest filed in Docket No. PIKE
78-400. The civil penalty issues had been consolidated with the issues
raised by contestant in Docket No. PIKE 78-400. Therefore, the evidence
presented in Docket No. PIKE 78-400 dealt with all civil penalty issues
which are normally the subject of civil penalty proceedings. Innnediately
after the conclusion of the hearing with respect to the issues raised on
October 3, 1979, I rendered the following bench decision which is reproduced
below exactly as it was transcribed by the reporter. (Tr. 257-269):
Mr. Stephens explained in the off-the-record discussion
the reason Exhibit 42 shows eighteen hundred tons coming out
of the plant as opposed to sixteen hundred out of the Leslie
Mine is that the preparation plant is processing some stockpiled coal.
The result is, it is actually appearing to process
more than it takes in; but as a matter of fact, the figures
are right.
Well, based on all that,- it has been my practice not
to find that a company is a large company unless it is producing around four or five thousand tons a day, or I have a
chain of factual record information showing that some holding
company owns it; and I just do not think I have the information that I would like to have to find that Leslie Coal
Mining Company is a large operator, and I am going to find it
is a moderate-size company, which is what I was planning to do
before I got confused or worried about perhaps not having
considered all the evidence. I just do not see there is enough
evidence here to permit me to find a large company.
When I find a large company, I am thinking in terms of
Consolidation and Itmann and Pittston and companies like that,
and I do not think this is that size of an operation. I do not
think Ms. Jordan's absence 1/ would keep me from making other
findings about the civil penalty aspects· of the case in her
absence, so while I am discussing the size of the company,
I will go on and discuss the other criteria.
The evidence shows that there is nothing to contradict
or show, other than the fact that payment of penalties would
have no ef feet on this. company·' s ability to continue in busin~irn-~r. •. ~t:epP,~n~ ha~ put no evidence to that effect--so I
1/

It was necessary for Ms. Jordan to leave the hearing room for a
few minutes to make an urgent phone call.
2023

Les.lie v. MSHA & UMWA, Docket Nos.• · PIKE 78-400~ ~ al. (Contd.)
find that the company would not be· affected by· any penalties
that might be assessed in this~ proceeding, that is,· its ability to continue in buS:ines.s.
·
These findings I am making at the.moment will be considered· applicable to the remaining civil penalty· is.s.ues. in
thiS. proceeding' but thos.e are the only tw:o. that. can b.e made as. a general finding, because all the.· ·res.t would relate
to specif i.c alleged· violations.• · I cannot get· into . thos.e
without making the· major finding wi.th: re8.pect. to· Citation
No. 69563. .
.
That can be done now·, becaus.e Ms. Jordan has returned to
the hearing room. I think. in order that this decision can
later be put in a written form and mailed to all the parties-which is required.by the Administrative Procedure Act--I should
make some findings of fact.
On May 26, 1978, Inspector Hugh V. Smith and Inspector
Thacker went to the Leslie Mine and preparation plant to make
an inspection--or continuing inspect~oµ--which had already
begun. At the time they arrived, they went to the mine office
and indicated that a representative of the mine[r]s was
needed under Section 103(f) to accompany them.
It turned out that Mr. Brian Stiltner had reported to the
mine for the purpose of accompanying the inspectors. He had
appeared because he assumed the inspection, which had previously
been started, would be continued on May 26.
About the time that Mr. Stiltner had started to accompany
the two inspectors to the preparation plant which was going to
be inspected on May 26, the mine foreman--a gentleman by the
name of Gene Brennager--indicated that he could not perm.it
Mr. Stiltner to accompany the two inspectors because Mr. Stiltner
had been notified on May 25 that he had been suspended for
having participated in an unauthorized work stoppage which
occurred on May 24, 1978.
The inspectors still needed someone to accompany them;
and therefore, the management gathered together the men who
were working at the preparation plant. And at that time it
appears that only five men could be obtained for making a
selection.
So, the five men selected a gentleman by the name of
Ray Hall to travel wi.th them •. And Mr. Hall did accompany
them on their inspection which. las.ted until approximately
noon on May 26., 1978. The inspectors had called their
supervisor and had been' told that their procedure of getting
Mr. Hall to accompany them in the absence of any other
representative of the miners was an appropriate step to take.
2024

Les.lie v. MSHA & UMWA, Dock.et Noa. PIKE 78-400; et al. (Contd.)
How.ever, when the inspectors: re.turned' to the Pikeville.
offi.ce, they were advis.ed bY.-. thei;r. s11pervisor that they s.hould,
upon their next return to the: inine., is.sue. a citati..on alleging
a violation of Sec~ion 103(f} of the· 1977 Act~
·
Therefore, when 'Mr. Smi.tQ returned· to· the.· mine or
preparation plant-whicli. are contiguous.--on May 30, which
was the next working day· after May 26, he is.sued Ci.tation
69563 on that day," May· 30th:," 1978, Ci.ting the operator for
a violation of section 103(f) of the Act and s·tating--and
I quote--"Company offi.cials (mine foreman) refused to permit
a legally elected representative authorized by the.miners to
accompany an .authorized representative of the Secretary
of Labor during the physical inspection of the preparation
plant on May 26, 19 78."
Citation 69563 gave the company until--it was written
at nine fifteen a.m. and gave the company until nine thirty
a.m. to terminate or correct the problem. And on the same
form, in the section labeled "Action to Terminate", it was
indicated a representative authorized by the miners was
permitted to travel with a representative of the Secretary,
and that was indicated at eleven a.m.
Now, the testimony in general indicates that since
this Citation 69563 was issued after the fact, that the time
of issuance, the time given for compliance and time shown
for abatement are just a matter of formality because the
facts had already occurred and the company did nothing on
May 30th that it had not done on May 26 to abate this alleged violation.
And I think, as Mr. O'Donnell correctly pointed out in
his sunnnation, the question of whether the company· attempted
to achieve rapid compliance is a criterion which is hardly
applicable in this instance.
Therefore, if I assess. a penalty, no amount will be
attributable under the penalty--under the criterion of good
faith effort to achieve rapid compliance.
We have had testimony by Mr. Stiltner, who is the gentleman most affected by the company's ruling. It appears
that this suspension actually extended from four o'clock on
May 25 to four p .m. on May 26 ..
Since Mr. Stiltner normally worked at that ti.me-- from
four p.m. until midnight--he was handed hi.s notice of suspen~
sion on May 25 and therefore di.d not work on his normal shift
from four until midnight on May 25.

2025

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.)
And he considered· that he· had, therefore, complied with
the. noti.ce of s.uspensi.on b:r not working his. normal shift. There
was a union meeting that same.nightb.ecause of the work stoppage. that had occurre_d- on the.· previous day, and at that time
the. three s.afety commi.tteemen~ who were Messrs. Elmer Mollot,
Rogerliunt,·and Mr. Stiltner, agreed· that Mr. Stiltner should
be the. one who.would appear at the-lnine. on May 26, on the day
shift, to be· the representative of the miners to walk. around
wi.th. thein. on their ins.pection.
It appears on the.basis of a normal inspector's routine
that when a representative of the lniners accompanies the
inspectors on a given inspection period that the inspectors
are actually engage.d·--in inspection for a period of about four
hours; and therefore, the miner who is selected to represent
the miners· on this walkaround chore does not receive, normally,
pay for eight hours·.
Therefore, if Mr. Stiltner had been permitted to accompany
the inspectors on this occasion,'he would have received no
more than four hours' pay, because the inspection ended at
noon on May 26, and began about eight a.m. on May 26.
I think that those are probably the most important
matters to be included in the formal findings, and the rest
of the decision will be based upon a discussion of arguments
and the evidence.
For that purpose, I undoubtedly will mix some facts in
that have not been made a part of the formal findings. There
is no doubt that the issue in this case--which, of course,
is whether the company violated Section 103(f) of the Act
when it forbade Mr. Stiltner from accompanying the inspectors-is a close one; and for about the first half of this hearing,
I thought the company was entitled to do what it did, but
that was before I had heard all the evidence.
And after hearing all the evidence, it appears to me
that the union has the better argument here. Section 103(f),
of course, states that a representative authorized by his
miners--meaning the operator's miners--shall be given an
opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal
or other mine.
It appears to me that .the. fact.the:C.ompany·had suspended
Mr. Stiltner fer this twenty-four hour period does not give
the company· the right to interfere with the fact
that the representative-~that the miners had selected Mr.
Stiltner as their representative on that specific day.

2026

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400., et al. (Contd.)
There is no indication in the. re.cord that I can find that
show.s that Mr. Stiltner caiite to the mine on May 26. for the
purpos.e of trying ~o get paid· for a peri.od which he W:.ould otherwis.e have. lost by his. not having worked, from four to twelve
on May 25, 1978. ·
·
I do not think any· case can be decided apart from the
specific facts giving rise. to the controversy. Here, Mr.
Stiltner and the other two gentlemen on the safety committee--Mr. Mollet and Mr. Hunt--were all working from four
to twelve, and therefore by rotation method they were making
themselves available on the day shift in order to accompany
the inspectors· during an inspection, which lasted approximately three weeks.
And they were also going ahead ari.d working their four
to twelve shift at the same time; and they were doing so in
order that the work at the mine would be as uninterrupted as
possible by the fact that they were also acting as the representative of the miners to accompany the inspectors.
Consequently, when mine management declined to let
Mr. Stiltner go with the inspectors on May 26, there was
not then available another man to take his place who was
still in the same category of. a committeeman that was desirable, because these were the three men who were to be
selected to accomp[a]ny the inspectors.
Now, I recognize and I feel that management should have
a right to discipline its miners, but in doing so I think
that this type of situation could be avoided either by
suspending--if they felt Mr. Stiltner was going to accompany the inspector during a period which was still within
his suspension period--they could either have anticipated
the situation by making it clear to Mr. Stiltner on May 25
that one of the other committeemen should come in on the day
shift for the purpose of accompanying the inspectors, or
by changing the suspension period in order to permit Mr.
Stiltner to make this inspection with the inspectors.
In other words, I believe that the company cannot
interfere with the person that the miners choose to accompany
the inspectors. As long as he is still an employee and still
a member of the safety committee and is still one of the
people who is intended to accompany the inspectors, I believe
the company must let him do so and must take that into consideration when they are suspending someone.
I do not think i.t is s:omething they can work around. I
suspect now that I have found a violation of Section 103(£)
occurred, and I shall pass on to the civil penalty aspects
and deal with the other criteria.
2027

Leslie v. MSHA & UMWA, Docket Nos. PIKE. 78-400; et al. (Contd.)
I have already discus:sed three of them, and the only
three that remain are the: que.s.tions. of negligence:l gravity
and his.tory of previous. violations.• ·
As Mr. 0 'Donnell has_ indi.cate_d~ Exhibi.t 1 does. not sho"W
that the company has. previous;ly violated· Se.Ction 10.3(£) of. the
Act; cons.equently, the.' penalty should not be increased under
that criterion.
Mr. O'Donnell sugges;ted the violation is a result of
gross negligence, and I do not think I can go along with
him on that; because I simply believe that when Mr. Brennager
indicated that h.e did not believe that Mr. Stiltner could go
with the inspectors on May 26, he was simply enforcing a
suspension which he sincerely felt prevented Mr. Stiltner
from going on this inspection.
I do not· think in doing that that he had any intention
of doing other than something he thought he was compelled
to do--which was, since Mr. Stiltner was under suspension,
that he could not accompany these inspectors and that somebody else could be obtained to do it just as well.
So, I cannot see that the company was more than
[g]uilty of ordinary negligence in not having thought
this through and having given it some consideration at the
time that it made the suspension a punishment for Mr. Stiltner's
alleged participation in this unauthorized work stoppage.
I do not think it is material to this case, the fact
that there was a Step 3 proceeding at which Mr. Stiltner
apparently was considered to have enough matters in his
favor to justify his being paid. Because at the time that
Mr. Brennager made this decision, no determination had been
made as to the merits of the suspension period.
I just do not think the fact that later on Mr. Stiltner
was paid is anything that has to be considered. And then we
come to the gravity of the violation. Here again, there has
been a lot of testimony about whether the use of a person
other than the authorized representative really exposes the
miners, as a general category in a mine, to any greater hazards
than if the representative is someone chosen on the spur of
the moment, as was.done in this case on May 26.
The. evidence does show that Mr. Stiltner had not received
any training that other miners had not received at that period
of time when Mr. Stiltner began working for the company. And
the inspectors indi.cated that they were not aware that any of
the people who did accompany them during this inspection pointed
out any hazards that they themselves.. would not have seen in any
event.
2028

Leslie v. MSHA v. UMWA, Docket Nos. PIKE. 78-400, e.t al. (Contd.)
But there. does· se.em. to be. one aspe.ct of having the.
inspe.ctors.--or rather having a s.pe.cifi.c pe.rson or pe.rS.ons.
de.signated to accomp[a]ny ·the. inspectors.; he.cause. i.t appe.ars
to me. that the. inspectors feel' that i f they get the same
pe.rson each. -time.~r a l:i.Jni.te.d nwnbe.r· of parsons--to accompany them., that a proces.s · of training ca.Ii. be ins.tilled·
in th.e.Se people wh.a· go around with. the inspectors, and the
re.sUlt i.s there is gradufa]lly built up a certain amount
of expertise in these representatives wh.o accompany them.
The result is they can better field complaints from
the miners in general and can coordinate the various inspections by adding knowledge to what has happened in the
past. And this, I think, is helpful for both the company
and the inspectors.
Cons.equ~tly,from that standpoint, I think-that there
may oe·some moderate gravity in preventing the usua[l]ly
authorized representative to go around and allowing someone to go who is ahosen in a rather. :rapi.d.:w:ay. and without
the full opportunity for the.' miners to consider the merits
of his appointment or election as their representative.

But despite all that, I still do not think there is
enough gravity to the kind of thing that happened on this
day to justify a large penalty.
Consequently, I shall assess a penalty of fifty dollars.
Now, it is my understanding, of course, that I will put this
[decision] in the form of a writing, and it will be issued
along with the other matters we are going to take up
tomorrow when we go forward on the other civil penalty issues.
Settlement
On October 4, 1979, the second day of the hearing, counsel for both
MSHA and Leslie Coal Mining Company stated that they had engaged in extensive negotiations during the evening recess and prior to the convening of
the hearing and had been able to settle all the remaining issues in the
proceeding. Counsel for both MSHA and Leslie gave their reasons for settlement as hereinafter described (Tr. 352-353).
Docket No. PIKE 79.,;.90-P
Citation No. 67891 dated May 24, 1978, alleged that respondent had
violated Section 77.502 because the doors and covers had been removed from
the control panel unit serving the elevator. The Assessment Office proposed
a penalty of $122 for this alleged violation and respondent has agreed to
pay a penalty of $61. · MSHA's counsel stated that he had agreed to accept
the. reduced amount be.cause the doors and covers for the control panel had
been removed so that work.. could be.~ done on the·-e.1e..vator. Counsel' for

2029

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.)
respondent stated that the control room is accessible only by a system of
steps and that the.re is a sign over the. door into the control room bearing
the.w.ords "Authorized Personnel Only" and that the room is kept locked
an.d can be entered only whe:i:i. work. has to. be performed in the control room.
Counsel for MSHA also obs.erve.d. that Section 77 .502 refers to "a potentially
dangerous. condition" and he. s.tated that a ·question existed as. to whether the
mine.rs. had be.en exposed to danger whe:ii the. potential danger· is located behind
locked doors (Tr. 354~356; EXh. A).
Citati.on No. 67893 dated May 24, 1978, alleged that respondent had
violated Section 77.400 by failing to guard the wire ropes and pulley that
are used to hoist the plant elevator. The Assessment Office proposed a
penalty of $56 and respondent has agreed to pay the full amount of the proposed penalty. Respondent's counsel stated that he had agreed to pay the
full proposed penalty with considerable reluctance because the ropes and
pulley were located in the locked control room discussed above and therefore
he. did not feel that the ropes and pulley were freely accessible (Tr. 357358).
Citation No. 67894 dated May 24, 1978, alleged that respondent had
violated Section 77 .1109-3Cd) by failing to place a fire extinguisher at
the permanent electrical installation located in the elevator room. MSHA's
counsel stated that MSHA would be willing for Citation No. 67894 to be
vacated because it had erroneously alleged a violation of Section 77 .1109-3 (d)
instead of the correct secti.on whi.ch is" Section 77 .1109(d). Additionally,
.counsel for respondent stated that a fire extinguisher had been provided
just outside the door of the control room and that respondent considered that
to be a better location for the extinguisher than inside the control room,
although a fire extinguisher had been provided inside the control room
after the citation was issued (Tr. 359-360; Exh. B).
Citation No. 67896 dated May 24, 1978, alleged that respondent had violated Section 77 .204 because an opening 10 inches by 40 inches existed
on the sixth level near the fire hose outlet at a location where the opening
might allow men or material to fall to the lower levels where people were
working. The Assessment Office proposed a penalty of $48 and respondent has
agreed to pay a penalty of $40. Counsel for the parties stated that if evidence had been presented with respect to this alleged violation, respondent's
witness would testify that the hole cited by the inspector had been cut into
the wall, along with another opening measuring 12 by 20 feet, for the purpose
of building an addition to the plant. Counsel for respondent stated that
nothing was done to the large opening and the small opening was corrected
simply by stringing a guard rope across it. Counsel for MSHA stated that
the inspector disagrees with respondent's prospective witness as to what was
done to abate the alleged violation (Tr. 361-363) •
Citation No. 67897 dated May 24, 1978, alleged that respondent had violated Section 77 .1109 (b) because sufficient fire hose to project water to
any point in. the. plant had not been· provided at each. floor. The Assessment
Office proposed a penalty of $90 and respondent has agreed to pay a penalty
of $50. MSHA' s counsel stated that the reduced penalty was justified because respondent's prospective Witness would testify that there was a hose
available which.would extend to any point in the plant, but that the hose
2030

Leslie v. MSHA & UMWA, Dock.et Nos. PIKE 78-400> et al. (Contd.)
had been extended for the.. purpos.e of w.aah.ing the. floor and w.as still lying
on the. floor when the. inspector observed it.· The. inspector w.ould not agree
entirely with_ respondent's claim regarding the.. fire hose, but the. inspector
did agree that a hose. of some type was present (Tr. 364}.
Citation No. 67898 dated May 24, 1978, alleged· that respondent had violated Section 77 .1605(a) because the left glass. was cracked· in a three-part
windshield on a front-end loader. The Assessment Office proposed a penalty
of $106 for .. flif.s alleged violation and respondent has agreed to pay the
full amount. Couns-el for respondent stated that he had agreed to the full
amount solely to avoid litigation because he argued that the crack was on a
part of the glass which had no windshield wiper, whereas the inspector's
manual provides that a citation is not to be issued unless the crack impairs
the operator's vision or would damage the windshield wiper blades (Tr. 366367).
Citation No. 67900 dated May 24, 1978, alleged that respondent had violated Section 77.205(a) by failing to provide a ladder for a safe means of
access to the right side of a front-end loader. The Assessment Office proposed a penalty of $66 for this alleged violation and respondent has agreed
to pay the full amount.
MSHA believes that it would be possible for a
person to step out of the loader on the side having no ladder and be injured by the fact that no ladder existed on the right side. Respondent
argued that the standard does not require ladders on both. ,sides of the loader
and that since a ladder existed on one· side, the loader was in compliance
with Section 77.205(a) because a safe means of access had been provided
(Tr. 368-369).
Citation No. 69563 dated May 30, 1918, alleged that respondent had
violated Section 103(f) of the Act. A penalty of $50 was assessed by me
in the bench decision appearing in the first part of this decision (Tr. 369).
Citation No. 69565 dated May 30, 1978, alleged that respondent had
violated Section 77.1710(i) because a usable seat belt had not been provided
for a back hoe. The Assessment Office proposed a penalty of $170 and
respondent has agreed to pay $70. MSHA's counsel explained that he was
willing to accept a reduced penalty in this instance because the back hoe
was owned and operated by a construction company. In such ci:rcumstances,
MSHA' s counsel stated that the Assessment Office had assigned an undue
portion of the assessment to the operator's negligence. In this instance,
MSHA's counsel believed that respondent's only negligence was in failing to
check the independent contractor's hoe. MSHA's counsel also noted that the
Assessment Office had apparently increased the penalty because a withdrawal
order was issued, but the delay in abating the citation was justified when
it is considered that respondent and the independent contractor were trying
to decide whi.ch of them was obligated to correct the alleged violation.
Also some of the delay arose because the contractor at fi.rst assumed that
taking the back hoe out of service would be a sufficient act to abate the
citation (Tr. 370-372).
Ci_tation No. 69566 dated May 30, 1978, alleged that respondent had
vi.olated Section 77. 410 by failing to provide a suitable back-up alarm for
a back hoe. The Assessment Office proposed a penalty of $90 for this al2031

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.)
leged violation and respondent has. agreed to pay a penalty of $70. The
reason for the reduced. penalty in this instance is the same as. described
above.,· namely,. that an in.dependent contractor owned and operated the back
hoe (Tr. 373).
Ci.tati.on No. 69:567 dated May 30, 1978, allege.d· that respondent had
vi.olated Secti.on 77 .1109{C) (1) by failing to provi.de a portable fire extinguisher for a back. h.oa. · The. Ass.eS.s.ment Offi.ce proposed· a penalty of
$150 and respondent.has _agreed.to·pay a penalty of $70 for the same reasons
gi.ven allove w::i:th. respect to th.e 0th.er two alleged vi.olations pertaining to
the.· Eack. fLOe (Tr. 374-375).
·
Ci.tation No. 69569 dated May 30, 1978, alleged that respondent had
violated Section 77.1109(d) by failing to provide a fire extinguisher at a
perm.anent electrical installation located on the fifth level of the plant.
The Assessment Office proposed a penalty of $52 for this alleged violation
and respondent has agreed to pay the full amount. Counsel for respondent
stated that a fire extinguisher had been provided just outside the door of
the welding room and that it was close enough to come within the guidelines
in the MSHA inspector's manual which provides that a fire extinguisher may
be considered in compliance if it is within 50 feet of the electrical
installation (Tr. 376-377).
Citation No. 69570 dated May 30, 1978, alleged that respondent had
violated Section 77 .1109(c) (1) because ·a portable fire extinguisher had
not been provided in the control room on the fifth level where four portable
welding units were located.
The Assessment Office proposed a penalty qf
$40 and respondent has agreed to pay the full amount. Counsel for respondent
stated that the factual situation with respect to this alleged violation was·
similar to that which has already been described in connection with the pre~
ceding alleged violation (Tr. 377).
Docket No. PIKE 79-91-P
Citation No. 69571 dated May 30, 1978, alleged that respondent had
violated Section 77.200 because the preparation plant was not being maintained
in a safe condition to prevent accidents because two pieces of metal were
hanging loosely from the plant's framework on the third level. The Assessment Office proposed a penalty of $90 and respondent has agreed to pay a
penalty of $45. Counsel for respondent stated that the bolts in the top of
the panels were in the process of being removed as an expansion of the plant
was in progress. MSHA' s counsel stated that he had agreed to the reduced
penalty because a question exists as to whether the citation involved a condition that could result in an accident (Tr. 378-379).
Citation No. 69572 dated May 30, 1978, alleged that respondent had violated Section 77.1102 because signs warning against smoking and open flames
had not been posted at the oil storage. area located adjacent to the hoist
house. The As.sesament Offi.ce proposed a penalty of $30 and respondent has
agreed to pay $30 •. Counsel for respondent stated that the inspector incorrectly described the area involved as a storage area for fuel because the
only materi.al present was lubricating oil which could not be used, as alleged
by the inspector's citation, to refuel equipment. The inspector conceded
2032

Leslie. v. MSHA & UMWA, Docket Nos. PIKE 78-400,. et al. (Contd.)
that since he. di.d not actually tes.t the. oil in the barrel, he. w.ould have to
agree that i.t could have been lubricating oil (Tr. 379-381).
Ci.tati.on No. 6.9573 dated· May 30", 1978, alleged· that respondent had
violated Section 77 .11Q9 (e} Ul. hy faili_ng to provide two portable fire
extinguishers. at the oil s.torage.. area· located adjacent to the· main hoist
house. located on the surface of the preparati.on plant. The.. As.sessment Office
proposed· a penalty of $40 and respondent has agreed to pay a penalty of $30.
If a hearing had been held with. respect to the violation alleged in Citation
No. 69573," the. issues would be (1) whether· the inspector was correct in
labeling the liquid in the barrel as fuel or whether the liquid was lubricating oil, and (2) whether a half barrel of either fuel or lubricating oil
would be sufficient to constitute an "oi.l storage area" as that phrase is
used in Section 77.1109(e)(l). Counsel for MSHA stated that he was willing
to accept a reduced penalty because of the disputed factual issues and the
inspector's concession that he is not certain whether the liquid was fuel
or lubricating oil (Tr. 382).
Citation No. 69574 dated May 30, 1978, alleged that respondent had
violated Section 77.1109(c)(l) because respondent had not provided a portable fire extinguisher for a back hoe peing used on the surface at the
preparation plant. The Assessment Office proposed a penalty of $40 and
respondent has agreed to pay a penalty of $25. If a hearing had been held
with respect to the allegations in Citq,tion No. 69574, the primary issue
would have been whether respondent had violated Section 77.1109(c)(l).
Respondent's counsel claimed that the alternator on the back hoe was inoperable and that the back hoe had-been taken out of service and therefore
did not have to be maintained in accordance with Section 77 .1109 (c) (1).
MSHA's counsel stated that his position was that any vehicle on mine property
had to be ·maintained in a safe condition and that would include being in
compliance with Section 77.1109(c)(l). Respondent's answer to MSHA's
argument was that new equipment must be brought on mine property and checked
for permissibility and other factors before being taken underground. Respondent argues that it would be improper to cite violations on such new
equipment or on any equipment which is not in service. MSHA's counsel stated
that the parties had agreed to a penalty of $25 in settlement of the issues
described above (Tr. 383).
Citation No. 69578. dated May 30, 1978, alleged that respondent had
violated Section 77 .400 (b) by failing to provide a guard to protect workers
from injury in case of a whipping motion which might result from a broken
belt. The Assessment Office proposed a penaJty of $52 and respondent has
agree4 to pay a penalty of $35. Respondent's counsel stated that there was
a guard outby the belt and between the belt and the traveled area. He said
that the only time a miner would come inby the guard is when work needed
to be done on the belt and that at s.uch... times., the belt is shut off. Moreover, according to respondent's. counsel, the citation was abated by the
erection of some danger signs instead· of a guard. MSHA's counsel stated
that he had agreed to accept a penalty of $35 in view of the question of
whether anY.one W.ould ever come into a hazardous position below the belt
(Tr. 384-38$) •

2033

Leslie. v. MSHA & UMWA, Dock.e.t No~. PIKE 78-400, et al. (Contd.)
Ci.tati..on No. 69579 dated May 30, 1978, alleged that respondent had
violate.d Se.cti.on 77 .202. he.cause. an excess.ive amount of loose dry coal had
be.en allowed· to accumulate.around the. electrical components. on a feeder.
The. Assessment Offi..ce. propas.ed a penalty of $52 for this alleged violation.
Res.pondentt.s.couns.e.1 stated· that in thiS instance. the. feeder had been out
of servi.ce. for 6. months. and MSHA' s. counsel· agre.ed that since. the feeder was
out of ser\ri.ce, · th.are Wa.s. no . danger of fi.re and that MSHA has decided to
vacate Citation No. 6:9.579. Coilnsel also explained that even· though. the
citati.on s:.tates: that the. sw.i.tch. for the. fee.der was. in an "on" position, that
condi.tion caus:e.d no hazard be.caus:.e. the. feeder was: not connected to a power
source. (Tr. 386~387}.
Citation No. 69580 was dated May 3Q, 1978, and alleged that respondent
had violated Secti.on 77 .1109 by failing to provide a portable fire extinguisher
on the same feeder mentioned in the preceding paragraph above. The Assessment
Office proposed a penalty of $38 and MSHA has agreed to vacate Citation No.
69580 for the same reason as given above, namely, that the feeder had not
been used for 6 months and that respondent had no plans to use it. In such
circumstances, it is dou[>tful that a feeder is required to be provided
with a fire extinguisher, although res'pondent did abate the citation by providing a fire extinguisher for the inoperative feeder (Tr. 388).
Citation No. 69581 dated May 30, 1978, alleged that respondent had
violated Section 77 .400(b) by fai.ling to install a guard on the outby conveyor belt at a point immediately outby the opening of the main silo. The
Assessment Office proposed a penalty of $52 for this alleged violation and
respondent has agreed to pay the full amount. Respondent's counsel introduced as Exhibit C a picture of the conveyor belt for the purpose of supporting his argument that there was a passageway all the way around the belt and
that no one had to travel under the belt conveyor as alleged in the inspector's
citation (Tr. 389-390).
Citation No. 69582 dated May 30, 1978, alleged that respondent had
violated Section 77.205(b) by failing to provide and maintain a safe means
of access outby the drawoff tunnel opening for a distance of about 20 feet
in all directions. The citation specifies that a safe means of access was
prevented by existence of an excessive accumulation of loose coal, muddy
water, and other materials in a depth of from 6 to 12 inches. The Assessment Office proposed a penalty of $72 and respondent has agreed to pay a
penalty of $36. Respondent's counsel challenged the inspector's claim
as to the factual situation and also argued that a loadout area was involved
where some spillage would be expected. It was the second shift's duty to
clean the area, but a strike had be.gun on the second shift so that the area
was. not cleaned as it would have been if normal operations had continued on
an uninterruped basis (Tr. 391-393).
Ci.tati.on No. 69588 dated May 31, 1978, alleged that res.pendent had
violated Section 77 .1605 (1) by. failing to provide suitable. buinper blocks
which. would prevent overtrave.l or overturning. · The bumper blockS.:. ~re
rendered ineffective.;· according to. the. cit a ti.on' because. loose coal had been

2034

Leslie v. MSHA & UMWA, Docket Nos.• PIKE 78..,-400~ et al. (Contd.)
allowed to accumulate over thein~ The Assessment Off ice proposed a penalty
of $32. MSHA's counsel stated that MSHA had agreed to vacate this alleged
violation because the feeder had been out of service for 6 months and was
not being used (Tr. 394).
Citation No. 69589 dated May 31, 1978, alleged that respondent had violated Section 77.400(a) by not providing a guard for a tail roller. ~he
Assessment Office proposed a penalty of $72 for this alleged violation,
but the guard pertained to the feeder which had been out of service for 6
months and, for that reason, MSHA's counsel stated that the citation would
be vacated.
Citation No. 69592 dated May· 31, 1978, alleged that respondent had
violated Section 77.1104 by allowing loose coal to accumulate around the
loadout control tower located on the surface_adjacent to the railroad tracks.
The citation also ref erred to a 30-gallon oil can and alleged that the
conditions created an extreme fire hazard.· The.Assessment Office proposed
a penalty of $60 and respondent has agreed to pay a penalty of $48. Respondent's counsel stated that the area involved was a loadout area where some
accumulation of coal is bound to occur~ The.area had not been cleaned
as well as would normally have been the case because of a work stoppage.
In such circumstances, MSHA's counsel believed that a reduced penalty was
justified.
I find that counsel for respondent and MSHA gave satisfactory reasons
for the penalties agreed upon in their settlement conferences and that the
settlement agreement hereinbefore discussed should be accepted.
Sunnnary of Assessments and Conclusions
(1) As hereinbefore found in my decision in Docket No. PIKE 78-400,
the Application for Review or Notice,of Contest of Citation No. 69563 should
be denied and Citation No. 69563 should be affirmed.
(2) Pursuant to my decision in Docket No. PIKE 78-400, respondent
should be assessed a penalty of $50 for the violation of Section 103(f) of
the Act alleged in Citation No. 69563. That penalty is also a part of
MSHA's Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 79-90-P and will hereinafter be listed among the penalties otherwise
settled by agreement of the parties.
(3) Respondent is the operator of the Leslie Mine and Preparation
Plant and, as such, is subject to the provisions of the Act and to the
regulations promulgated thereunder.
(4) The settlement agreements proposed by the parties in Docket
Nos. PIKE 79-90-P and PIKE 79-91-P should be approved because good reasons
were given by respondent's and MSHA's counsel in support of the settlement
agreements.

2035

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, et al. (Contd.)
(5) Pursuant to the parties' settlement agreements and my decision
in Docket No. PIKE 78-400, the civil penalties listed below should be
assessed.
Docket No. PIKE"79~90~P

.............. ..•............•.
.... ... ..................
................

•··•·
61-.00
Citation No. 67891 5/24/78 § 77.502
$
56.00
Citation No. 67893 5/24/78 § 17 .-400 (a)···· .•.•.•.. , .•.• -,-,.,-..···.··.
40.00
Citation No. 67896 5/24/78 § 77.204
•··•· ·····
50.00
Citation No. 67897 5/24/78 § 77.1109 (b) ............106.00
Citation No. 67898 5/24/78 § 77.1605{a) .
•··•·
66.00
Citation No. 67900 5/24/78 § 77 .205
50.00
Citation No. 69563 5/30/78 § 103 (f)
70.00
Citation No. 69565 5/30/78 § 77 .1710 (i)- •••., •..•., •., •., •.,.
70.00
Citation No. 69566 5/30/78 § 77.410 ········~·~···~···
70.00
Citation No. 69567 5/30/78 § 77 .1109 (c) (1) . ·····
§
52.00
77 .1109 (d)
Citation No. 69569 5/30/78
·40~00
Citation No. 69570 5/30/78 § 77 .1109 (c) (1)
Contested
Penalties
in
Total Settlement and
Docket No. PIKE 79-90-P
$ 731.00

..............................
................
..........•...•...
.....................................

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

(6) Pursuant to the parties' settlement agreement, the civil penalties listed below should be assessed.
Docket No. PIKE 79-91-P
Citation No. 69571 5/30/78 § 77.200 ••••••••••••••.••• $
Citation No. 69572 5/30/78 § 77~1102 •••••••••••••••••
Citation No. 69573 5/30/78 § 77.1109(e)(l) •••••••••••
Citation No. 69574 5/30/78 § 77.1109(c)(l) •••••••••••
Citation No. 69578 5/30/78 § 77.400(b) ..•••••.•••••••
Citation No. 69581 5/30/78 § 77.400(b) •••••••••••••••
Citation No. 69582 5/30/78 § 77.205(b) •••••••••.•••••
Citation No. 69592 5/31/78 § 77.1104 •••••••••••••••••
Total Settlement Penalties in Docket
No. PIKE 79-91-P .............................. $

45.00
30.00
30.00
25.00
35.00
52.00
36.00
48~00

301.00

(7) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-90-P should be dismissed as requested by MSHA's counsel to the
extent that it seeks assessment of a penalty for the violation of Section
77.1109(d) alleged in Citation No. 67894 dated May 24, 1978.
(8) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-91-P should be dismissed as requested by MSHA's counsel to the
extent that it seeks assessment of civil penalties for the violations of
Sections 77.202, 77.1109, 77.1605(1), and 77.400(a) alleged in Citation
Nos. 69579, 69580, 69588, and 69589, respectively.
WHEREFORE, it is ordered:
(A) The Application for Review or Notice of Contest filed in Docket
No. PIKE 78-400 is denied and Citation No. 69563 dated May 30, 1978, is
affirmed.
2036

Leslie v. MSHA & UMWA, Docket Nos. PIKE 78-400, ~t al. (Contd.)
(B) The parties' requests for approval of settlement are granted and
the settlement agreements. submitted on the record in Docket Nos. PIKE 79~90-P
and PIKE 79-91....:P are approved~
(C) Pursuant to the-parties' settlement agreenient and the decision
in Docket No. PIKE 78""'400, respondent shall, within 30 days from the date
of this decision,. pay.civil penalties· totaling $1,032.00 as set forth in
paragraphs 2, 5, and 6 above.
(D) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-90-P is dismissed to the extent specified in paragraph 7 above.
(E) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-91-P is dismissed to the extent specified in paragraph 8 above.

~.,JC.~~

Rf~h;~<lC: Steffey

Administrative Law Judge

Distribution:
John M. Stephens, Esq., Attorney for Leslie Coal Mining Company,
Stephens, Combs & Page, P.O. Drawer 31, Pikeville, KY 41501
(Certified Mail)
John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mary Lu Jordan, Attorney, United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005

2037

...

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

Contest of Citation

BURGESS MINING AND CONSTRUCTION
CORPORATION,
Applicant

Docket No. SE 79-42

v.
Boothton-Pit

SECRETARY OF LABOR,
MINE ~AFETY AND HEALTH
ADr-11.NISTRATION (MSHA),
Respondent
DECISION
Appearances:

Frank M. Bainbridge, Esq., Birmingham, Alabama, for Applicant;
Murray A. Battles, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingha;n, Alabama, for Respondent.

Before:

Judge Fauver

This proceeding was brought by Burgess Mining and Construction Corporation under section 105(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., to review the validity of a citation issued by a
federal mine inspector pursuant to section 104(a) of the Act.
The parties submitted prehearing statements pursuant to a notice of
hearing, and a hearing was held on July 10, 1979, in Birmingham, Alabama.
Both sides were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the evidence and the· contentions of the parties, I
find that the preponderance of the reliable, probative, and substantial
evidence establishes the following:
FINDINGS OF FACT
l. At all pertinent times, Applicant, Burgess Mining and Construction
Corporation, operated a coal pit known as the Boothton Pit, in Shelby
County, Alabama, which produced coal for sales in or affecting interstate
commerce.
2. A navigable stream, the Cahaba River, cuts through Applicant's
operations and interrupts its 9-mile haulage road used in connection with
mining operations at its Boothton Pit.

2038

3. In 1969, Applicant obtained the necessary federal and state
autnorizations to construct a bridge across the river so Applicant could
travel oack and forth from its mines to the preparation plant, which are
on opposite sides of the river. To ensure that the bridge would not impede
the river's flow, the approved design (for a flat~top concrete bridge resting on the riverbed) included a number of 36-incn pipes parallel to the
course of the river's flow and through which it could pass.
4. Since its construction, the bridge has remained structurally
unchanged, without rails or berms on either edge. The driving surface was
measured to oe about 6 feet above the riverbed and, with the exception of
heavy rains, the river was about 3 feet deep on the ~pstream side and about
l foot deep on the downstream side of the bridge. The bridge is about
26 feet wide and about 210 feet long.

5. On May 9, 1979, MSHA inspector Greg HcDade, accompanied by his
supervisor, James Sanders, issued a citation charging Applicant with a violation of 30 CFR 77.1605(k), as follows:
Guards were not provided on either side of the concrete
bridge across the"Cahaba River which had been constructed by
this mining company as a part of the haulage road system
fro~ the illine site to the preparation plant.
The bridge is
24-1/2 feet wide, 410 feet long with a 5-foot drop from the
top of the bridge to the water level on the lower water side
of the bridge and a 2-foot drop to the water level on the
high water side of the bridge.
6. Section 77.1605(k) provides that "Berms or guardrails shall be
provided on the outer bank of elevated roadways." Both inspectors considered the bridge part of Applicant's haulage road system for transporting
coal from the pits on one side of the river to the preparation plant on
the other side.
7. Inspector McDade determined that guardrails should have been
installed to prevent coal trucks and other vehicles from going over the edge
of the bridge. He considered as adequate anything that would keep a large
vehicle on the bridge by deflecting its tires inward in case it lost control,
such as 12 x 12 ties stacked 24 inches high and anchored to the bridge.
8. Before the inspection on May 9, 1979, the subject minin6 operations
had been inspected by MSHA,on a regular basis, at least 30 to 50 times, from
1970 to 1979. During this period, MSHA never cited Applicant for failing to
install guardrails or berms on the bridge, although the lack of guardrails or
berms on the haulage road was the subject of a notice of violation issued to
Applicant on May 1, 1972, by MSHA' s predecessor ]j which stated: "Elevated
1/ MSHA was created March 9, 1978, when federal mine safety and
health enforcement was transferred from the Interior Department to
the Department of Labor.

2039

roadways along the haul road between the ;nine and the preparation plant
needed ber.ns or guards provided on the outer banks • 11 At that ti;ne, the
predecessor a5ency (the Interior Department) furnished Applicant with a
study indicating specific locations along the 9-mile road where it had
determinea guardrails or berms should be installed. The bridge, which is
part of the haul road, was not included as an area in need of guardrails
or berms. As part of a settlement of the 1972 notice, the parties agreed
that Applicant would withdraw its application for review of the notice and
would install rails or berms at the places specified by the Interior
Department.
'). The oridge has been used regularly without guardrails or Ularkers
for aoout 10 years with only one recorded mishap, in 1971 or 1972, when
defective orakes forced the front wheel of a coal truck to slide over tne
retaining wall at one end of the bridge. The truck was traveling slowly
enough to prevent its falling off the wall. A coal truck traveling at
nor:ual speed would probably fall on its side into the river if one of its
wheels ran off the edge of the bridge, especially if it were loaded.
10. Applicant nor:nally has five to seven coal trucks operating between
the pit ana preparation plant. A driver usually .nakes six or seven trips
across the bridge each day. Coming from the preparation plant on the east
side of the river, an unloaded truck would approacn the bridge downhill,
~ake a 90-degree turn onto the bridge, at about 5 to 10 miles per hour, and
come to an almost complete stop before straightening up and crossing the
bridge. The driver would shift into fourth gear and attain a speed of 25 to
35 ;niles per hour before reacning the west side of the bridge.
11. Returning from the mine to the preparation plant, the truck might
cross the bridge at about 20 to 30 miles per hour before downshifting into
third gear as it entere~ the 90-degree turn on the east side of the bridge.
Entering the turn, the truck would be traveling about 10 to 15 miles per
hour. The speeds in Fdgs.· 10 and 11 assume normal driving behavior.
12. Drivers treat the bridge as a one-way road, though the road on
land is two-way.
13. Applicant's coal trucks have air brakes with master cylinders on
each wheel. The steering is power-assisted and is operated by hydraulic
system. In the event of a .uotor failure, the power steering and hydraulic
system would probably fail, but the brakes would continue to operate as
long as there was still air pressure. The overall effectiveness of the
brakes would be reduced when wet.
14. The water level of the Cahaba River varies depending upon the
amount of rainfall, with the river overflowing the structure's surface
several tiwes each year, usually in the late winter and early spring.
15. At various times, Applicant's trucks have crossed the bridge, in
daylight, when the water was above the driving surface. The bridge would

2040

no longer be visiole when tile water was 6 inches to 1 foot above its surface and would be impassable when the water was deeper than 2-1/2 to
3 feet. w'nen the bridge is under water, the only way to determine its
location is a ripple effect caused by the water moving against the bridge
on tne upstream side and dropping off on toe downstream side. The upsurge
would be fairly constant across the bridge's surface until the run-off on
the downstream side. The lines of demarcation would be reasonably clear
to a driver.
16. When the overflow on the bridge is too deep, drivers may refuse
to cross tne bridge without objection from Applicant. Applicant itself has
refused to permit use of the bridge when it determined the water to be too
high. The standard used by Applicant for determining wnen the bridge is
unsafe is the axle height of the smallest vehicle, a pick-up truck, wnicn is
about 14 inches. The axle on Applicant's coal haulage trucks is 27 inches
above the ground and the frame is over 38 inches above the surface. In
rainy seasons, a supervisor generally would watch the river on an hourly
basis.
17. During the winter, drivers nave often crossed the bridge in the
dart< wnen working a late shift, out not with the water above the. road surface. There are no floodlights on the bridge and the headlights on the
trucks are not considered adequate for driving at night if the bridge is
under water.
18. Applicant introduced in evidence an undated memorandum circulated
by MESA' s assistant ciirector respecting the application of section 77 .1605(k)
(Exh. B-d, p. 2). This memorandum states in part:
This standard only applies to roads cut along the side of a
mountain, hill, pit wall, or earth bank where one side of the
road is protected 'oy natural barrier (inner bank) but where
vehicles or equipment may run off and roll down the unprotected outer bank.·
This standard does not apply to road·s "elevated" above the
terrain to provide drainage, or because the road is "elevated" by reason of drainage ditches * * * to facilitate
drainage or snow removal. [Diagrams excluded.]
In 1972, Applicant receive'd the above memorandum as an attachment to a
memorandum dated October 19, 1972, addressing the s&~e issue, which states
that the "memorandum dated June 28, 1972, * * * is hereby revoked and
superseded by this memorandum." The October 19 memorandum, which appears
to supersede the undated one, reads in part:
Section 11 .1605( k) provides: "Berms or guard rails shall
i:>e provided on the outer bank of elevated roadways." This

2041

standard applies to that part of an elevated haulage road
wnere on.e bank is, or both banks are, unprotected by a
natural barrier which will prevent vehicles or equipment
fro.n running off and rolling down the unprotected bank or
banks •
.Berms or guard rails shall be provided on the unprotected

ban~, or banks, where the emban~~ent slope and e~bank:nesit

height equal or exceed those slopes and heights shown in
the following figure:

1·117.1

'l
0

10

!;.<)
f!ol(IAra:M~NT llCIGHT

h lfll

DISCUSSION
This case concerns th.e validity of a citation issued under section
104(a) of the Act. The inspector's citation alleges that Applicant violated 30 CFR 77.1605(k) and that the violation could significantly and
suostantially contribute to the cause and effect of a mine safety hazard.
The threshold issue is whether the bridge is covered by 30 CFR 77.1605(k),
which requires that "Berns or guardrails shall be provided on the outer
bank of elevated roadways • 11

2042

Applicant contends that the bridge is not covered by the standard. It
that the. plain meanin5 of the standard shows that it is intended
to apply only to roads cut along the sides of a mountain, hill, pit wall,
or earth bank where one side of the road is protected by a natural barrier,
the inner bank, but where vehicles or equipment may run off the other side,
the outer bank. It points out that the Secretary has promulgated no regulation specifically applicable to bridges or fords. (Applicant relies on
the testb1ony of Inspectors McDade and Sanders who stated that no such
regulation existed.)

contend~

Applicant also contends that the prior undated memorandum, the 10 years
without serious mishap, the 1972 settle~ent concerning the lack of guardrails along the haulage road, and the 30 to 50 safety inspections without
a charge of violation concerning the bridge, all shed "probative value as
to tne correct 'construction'to be given to the regulation."
The Secretary contends that Applicant's bridge across the Cahaba River
is an "elevated roadway" within the meaning of section 77 .1605(k) and must,
therefore, have benns or guardrails. The Secretary argues that section
77 .1605(k) "applies to~ that part of an elevated haulage road where one bank
is, ·or botn oanks are, unprotected by a natural barrier. which will prevent
vehicles or equipment from running off and rolling down the unprotected
bank or banks • 11
In applying 30 CFR 55.9-22, which is identical to 30 CFR 77.1605(k),
to a~ elevated pipeline roadway with banks on both sides, Judge Moore concluded that the standard applied to all elevated haulage roadways whether
curved or straight. Cleveland Cliffs Iron Company, VINC 78-300
(September 8, 1978). He interpreted "outer bank" to mean whichever bank
is hazardous "and if both sides of the road present a hazard of rolling
down a steep embankment·, then both sides of the roads are required to have
berms."
In contrast, Judge·Koutras in Peabody Coal Company, VINC 77-102-P
( DeceJioer · 13, 1977), held that the elevated side of an inner bank, even
though dangerous, was not subject to the guardrail standard:
I conclude that Respondent's position with respect to the
application of the regulation on the facts presented in thts
case is correct• The term "outer bank" is not further defined
by the regulations. However, the term "outer" has been construed to mean "of or pertaining to the outside; that is without or on the outside; exterman; opposed t9 inner," 67 C.J.S.
538; Brislin v. Carnegie Steel Co., 118 F. 579 (WD Pa. 1902).
On the facts presented, the parties are in agreement that the
deceased ran off the road at the inside turn of the road while
traveling around a curve in the road. In my view, this point
was the inner bank of the roadway which I have found was elevated. However, the regulatory language specifically and

2043

clearly on its face requires a berm or guardrail on the outer
bank, which in this case would be the opposite side of the
roadway adjacent to and paralleling the drainage ditch and
county road. [Emphasis in original.]·
In the. instant case, some light is shed on the issue by a question
and answer in the parties' briefs. The Secretary asked: "Would Burgess
contend that a bridge on a haulage road 50 feet high would not be required
to have guardrails in that it is not an elevated roadway and does not have
an outer bank?" In the Secretary's view, section 77.1605(k). would require
the bridge to nave guardrails, but in the view of Applicant:
wnile all would agree that any bridge 50 feet high should
have rails, Burgess does not agree that MSHA under existing
"standards" has the right to require rails and to impose fines
and penalties for the absence of rails on bridges whether the
bridge be 50 feet high or, as in this case, five feet high.
The Secretary's question overlooks the possibility of an imminent danger withdrawal order. Section 107(a) of the Act authorizes such orders
wherever :niners are subject to an "imminent danger." This authority applies
without regard to the question of compliance with a safety standard or regulation. It is directed at dangerous conditions, regardless of the question
whether a safety violation has been committed.
The existence of this authority moots the Secretary's question whether
a 50-foot lligh bridge could go unguarded. Closer examination might indicate
that bridges of much lower heights, including the height of Applicant's
bridge, may pose a question of innninent danger. This question is not
involved nere, since the inspector issued a citation, not a withdrawal
order, and since his citation found that: "the violation has not created
an imminent danger" (Exh. B-11). However, the authority granted by section
107(a) ma1.tes clear that the issue of the application of the guardrail regulation is not an all-or-nothing question of protection or no protection concerning bridges. Rather, the issue is whether Applicant's bridge is covered
by a regulation that says "berms or guardrails shall be provided on the
outer bank of elevated roadways." I hold that it is not.
Two of the operative terms of the regulation--"elevated" and
"roadway"--could apply to the bridge. The bridge is an integral part of
the haulage road and could reasonably be held to be a "roadway." Also, it
is necessarily elevated to cross the river, and could reasonably be held
to be an "elevated roadway." However, the use of the term "the outer bank"
indicates that the regulation was intended to apply to roads cut along the
side of a mountain, hill, pit wall, or earth bank, and not to apply to a
bridge crossing a river.
This plain meaning is confirmed by the Government's longstanding
administrative enforce1uent position that interpreted the regulation to
apply to such roads and not to bridges crossing rivers. Its many years of

2044

investigation of Applicant's site without asserting a different interpretation, its settlement of an administrative litigation with Applicant premised
on this very interpretation, and its issuance of an early memorandum showing
this interpretation all show that the original intent of the drafters of the
regulation was not to require guardrails or berms on bridges crossing rivers.
These are significant support for the view that such was, and has always
been, the plain meaning of the words of the regulation. When the Government
changea its position on enforcement, the change reflected a change in policy,
not a later discovery that the words "the outer bank" really mean "one
***or i>oth" banks of a roaci.
The Govern.nent is bound by the plain !!leaning of the words used in its
regulations. It also has the duty to make its regulations as simple and
clear as the subject matter will permit. An operator is entitled to rely
upon the plain meaning of words and should not be held liaOle (which may
mean suostantial civil or criminal penalties and a mine shutdown) for failing to anticipate that the Government will rely upon a hidden or obscure
meaning.
If the Government decides to change enforcement policy, it must not do
so by an interpretation that stretches a regulation beyond its plain meaning. Fairness requires that rulemaking procedures to revise the regulation
be employed.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the pa~ties and the
subject matter of the above proceeding.
2. Applicant's bridge across the Cahaba River is not subject to the
safety standard provided in 30 CFR 77.1605(k).
ORDER
wHEREFORE IT IS ORDERED that the application for review is GRANTED
and the subject citation is VACATED.

tJ~ '}-~v~
WILLIAM FAUVER, JUDGE
Distribution:
Frank M. Bainbridge, Esq., 1010 Massey Building, Birmingham, AL
35203 (Certified Mail)
Murray A. Battles, Esq., Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 1929-9th Avenue South, Birmingham,
AL 35205 (Certified Mail)

2045

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52o3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceedings
Petitioner

Docket No. DENV 79-139-PM
A.O. No. 41-00046~05001

v.
Docket No. DENV 79-140-PM
A.O. No. 41-00046-05002

EL PASO ROCK QUARRIES, INC.,
Respondent

Docket No. DENV 79-176-PM
A.O. No. 41-00046-05003
El Paso Quarry & Plant Mine
DECISION
Appearances:

Barbara G. Heptig, Esq., and Jack Ostrander, Esq., Office
of the Solicitor, U.S. Department of Labor, for Petitioner;
Ralph W. Scoggins, Esq., El Paso, Texas, for Respondent.

Before:

Judge Charles c. Moore, Jr.

The three cases captioned above were consolidated for hearing to the
extent that general information introduced in the first docket number tried
was not repeated in the other docket numbers although ~t was agreed that
such information or evidence could be considered as having been introduced
in all three cases. The company is a large operator and I find that no penalty that might be assessed will affect its ability to continue in business.
It has no prior history of violations and all violations which are found
herein to have occurred, were abated promptly and in good faith.
DOCKET NO. DENV 79-139-PM
Citation No. 159658 alleges that an elevated roadway was not equipped
with berms or guards along the outer edges in violation of 30 CFR 56.9-22.
The road that is subject to the citation is for access to the very top of
the quarry wall for the purpose of drilling and blasting. Inspector Kirk
stated that the road was not used for hauling, loading, or dumping. In
Cleveland Cliff Iron Company v. Secretary of Labor, VINC 78-300-M
(September 8, 1978), I ruled that an identical berm standard only applies
to mine roads designed for hauling, dumping and loading. I see no reason

2046

why the requirement should be restricted to such roads, but it nevertheless
is, and until the standard is changed or the Commission rules otherwise,
I shall continue to interpret the standard as applying to only such roads
as I have indicated. The citation is VACATED.
Citation No. 159660 alleges that two employees on the No. 2 bench were
breaking boulders with a hammer and were not wearing eye protection as
required by 30 CFR 56.15-4. The evidence disclosed that the two "employees"
were actually what is termed "rock pickers" in the El Paso area. They are
not employees of El Paso Rock Quarries, Inc., but are actually either customers or employees of customers. As the evidence showed, a customer comes
in and agrees to buy rock t.hat has been blasted by the Respondent. The
customer then takes his own employees to the area and has them break up the
rock for collection in a truck.
This is not the typical "independent contractor" case such as the
Interior Department's Board of Mine Operations Appeals, the Federal Mine
Safety and Health Review Commission, the Federal courts, and the administrative law judges have been struggling with. In all o,f those cases, the
alleged violation was caused by, or was allowed to occur by, an independent
contractor who was performing some function for the mfne operator. The
alleged culprit was being paid by the mine operator to perform some service
in those cases. In the instant case, however, the individuals who were not
wearing the required protective goggles, were not performing any function
for the mine operator. They were customers buying rock or they were the
servants of customers buying rocks.
I cannot find in the cases decided by the Board or the Commission any
guidance as to the question of whether a mine operator should be held
responsible under the mine safety law for acts committed by a customer or
a customer's servant. Section 3(g) of the Act defines a "miner" as "any
individual working in a coal or other mine." Inasmuch'as the rock picker
is doing his work iri a mine, he fits the definition of a miner. As such,
he should be entitled to the same protection that the Act affords miners
who are working for a mine owner.
The standard in question, 30 CFR 56.15-4, requires that "all persons"
wear safety goggles "when in or around an area of a mine or plant where
a hazard exists which could cause injury to unprotected eyes." These rock
pickers were breaking rocks with a hammer and were not wearing eye protection. I find that breaking rocks with a hammer creates a situation where
eye injury could occur and since the Act was designed to protect miners
and these rock pickers are miners, I find that a violation of the standard
occurred. According to the inspector, the rock pickers do not speak English
or at least do not admit speaking English •. It would do little good, therefore, for the inspector to try to determine- who their employer was in order
to serve a citation on him. In some cases, the truck driver might be the
employer, but in others, he might be an employee of someone else. If the
Act is to be enfo~ced under the circumstances, the inspector's onl:y.recourse
is to serve the mine operator. The mine operator may not have authority to

2047

require the customers to wear protective glasses, but at least he could
furnish the glasses and instruct the rock pickers to wear them. I am going
to find the mine operator responsible for the actions of th~ rock pickers,
but I find very little negligence involved in the violation. A penalty of
$25 will be assessed.
Citation No. 159661 alleges that employees were observed riding on the
outside running board of a dump truck in violation of 30 CFR 56.9-40(a).
The standard cited prohibits men from being transported "in or on dippers,
forks, clamshells, beds of trucks unless special provisions are made for
their safety, or buckets except shaft buckets." At the commencement of the
hearing, the attorney for MSHA moved to amend the citation so as to allege
a violation of subsection (c) of 30 CFR 56.9-40 which prohibits miners from
riding "outside the cabs and beds of mobile equipment * * *·" The attorney
for Respondent objected to the amendment and pursuant to Eastern Associated
Coal Corporation, 5 IBMA 185 (1975), the motion was denied. The prayer for
a penalty is accordingly DENIED and the citation is VACATED.
Citation No. 159662. The allegation here is that the outer edge of
the second bench from the top of the quarry was not equipped with berms or
guard rails as required by 30 CFR 56.9-22. The bench jnvolved was clearly
the type of roadway where a berm is required by the regulation and it is
equally clear that there was no berm at the time of the inspection. While
berms must be constructed after blasting since the blasted boulders are
used to form the berms, and while Respondent had just recently finished
blasting at the time of the inspection, it is nevertheless true that
Respondent allowed haulage trucks to use the road before building the
berms. While I cannot accept the inspector's testimony that the berms
would stop a fully-loaded truck, they would serve as a visual warning as
to the location of the edge of the bench where the 40-foot drop begins.
Or, if the truck were a runaway, they might slow it down enough to give the
driver sufficient time to jump. The gravity is high but the negligence,
in view of the fact that the blasting had just been finished, is low. A
penalty of $100 is assessed.
Citation No. 159663. The citation alleges a violation of 30 CFR
in that a traffic sign "was partially hidden in the berm and
vehicles were observed going to the opposite pattern of the right-of-way."
The mandatory standard states that "traffic rules including speed, signals,
and warning signs shall be standardized at each mine and posted." There is
no allegation that the traffic was not standardized nor is there an allegation that the traffic pattern was not posted. The allegation merely is that
one of the signs (not the only sign) was partially hidden in a berm. The
partially-hidden sign was 600 to 800 feet from a proper sign and according
to the testimony, the drivers are told verbally that when driving a haulage
truck they should drive on the lefthand side. In order to rule in MSHA's
favor, I would have to interpret the standard to require a sign every so
many feet or perhaps at every intersection. But the standard does not
require that and I accordingly VACATE the citation.
56~9-71

2048

Citation No. 159664 alleges a violation of 30 CFR 56.3-12 in that two
employees loading rock by hand were between the truck and the quarry wall.
The standard prohibits this practice because of the danger of rolling rocks
trapping the miner against the truck or other piece of equipment leaving
him with no escape route. Boulders were in fact coming down the slope wall
and the miners were diverting. them into the dump truck. As in a previous
citation, these miners were non-English speaking rock pickers and essentially customers of Respondent. While it may. seem harsh to require Respondent to control the activities of customers, I know of no other way that
the purposes of the Act can be effectuated except to hold the mine operator accountable for the safety of these rock pickers. I hold the violation to be of moderate gravity and that it involves a low order of
negligence. A penalty of $25 will be assessed.
Citation No. 159665. The allegation is that 30 CFR 56.9-87 was violated in that the automatic reverse alarm was inoperative on one of the
company trucks. This was a 35-ton haulage truck and naturally could do
serious damage if it were to back over another piece of equipment or a
miner. But the evidence indicates that all such equ~pment is checked every
morning and every night, and whenever _the vehicle is backed up. The drivers
are instructed to take any truck to the shop to be fixed by mechanics when
a failure occurs. In the circumstances, I do not believe that the Act
requires a mine operator to guarantee that a piece of equipment will not
break down. His obligation is to check it often and repair it when it does
break down and there is no proof in this case that the operator did not do
just that. If the inspector had been able to determine when the horn
became inoperative and that the miner operator should have known of it, a
violation would be established. In the present circumstances, however,
the citation is VACATED.
Citation No. 159666. The charge is that an employee was barring down
loose rock on the lift of the third bench without a sarety belt and rope
in violation of 30 CFR 56.15-5. This is another "rock picker" violation
and I have already held that the mine operator is responsible if a violation occurs. In this case, however, I am not convinced that there was a
violation. · The standard requires safety belts and lines "where there is
danger of falling." The individual in this case was working on a slope
that he could walk up and down, but the inspector did not know the angle
or grade of the slope. MSHA has failed to carry its burden of proving that
there was a danger of falling and the citation is accordingly VACATED.
Citat!ort No. 159688. The citation alleges that loose unconsolidated
rock on a quarry wall was not supported or barricaded as required by 30 CFR
56.3-5. The standard is somewhat general but prohibits men from working
under or near dangerous banks and requires that overhanging banks be taken
down or barricaded and posted. The evidence is not clear as to exactly
what the inspector was referring to in using the phrase "loose, unconsolidated rock." It could not have been "loose" in the sense of unattached at
any point because the wall was vertical and something was keeping the rock
from falling. The inspector stated (Tr. 44): "Yes, sir, they were broken

2049

on three sides and only secured by one end." He apparently made the judgment that they were not sufficiently secure and therefore decided to use
the term "loose and unconsolidated." But in order to abate the citation,
Respondent had to rent a crane and try to dislodge the rocks with a large
steel wrecking ball sometime referred to as a "headache pill." Respondent
tried the crane and headache pill for 2 weeks and could not dislodge the
rocks. It ended up having to blast the rocks out of the wall. In the
circumstances, I do not see how I could find that these rocks were loose
and unconsolidated. The citation is VACATED.
Citation No. 159667. This citation alleges a violation of 30 CFR
56.9-71 in that proper traffic signs were not posted. The evidence clearly
establishes that at an intersection near the No. 1 primary crusher there
were no stop or yield signs present. The fact that the drivers were told
that trucks actually hauling rock had the right-of-way is no substitute for
the traffic signs required by the regulation. There was negligence on
Respondent's part but the gravity was only moderate. A penalty of $50 will
be assessed.
Citation No. 159668. The citation alleges a violation of 30 CFR
56.4-23 in that records concerning the inspection of f~re extinguisher;
were not available on the mine property. There is no allegation here that
the fire extinguishers were defective, but merely that the records of
inspections were not kept. Respondent's evidence was that the inspections
were made but it admitted that no records were kept. I find the violation
occurred but the hazard and negligence involved were of a small order. A
penalty of $50 will be assessed.
Citation No. 159669. The citation alleges a violation of 30 CFR
56.11-2 in that tools, bars, pulleys, etc., were stored on a platform and
that the platfono. contained no toeboards. The inspector thought that the
hazard was to people passing below the platform who might be injured by
falling objects. The standard states: "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." The standard is obviously intended to provide safety for people working on the platform and toeboards would be
required if a slipping hazard were present. The' standard does not prohibit
storage of materials in the absence of toeboards. The citation is VACATED.
Citation No. 159670. The citation alleges a violation of 30 CFR
56.15-5 in that the crusher operator climbed on top of the jaw crusher to
break a boulder with a sledge hammer without using a safety belt and rope.
The inspector actually saw the operator climb into a hazardous position,
he saw that safety belts and ropes were available in the cab of the jaw
crusher but that the miner ignored them. The miner did not speak English
and the inspector could not question him, but the only defense offered was
that safety equipment had been supplied and the miner had been instructed
to use it. I find there was a violation, that it was potentially hazardous
and that Respondent was negligent in not doing more than merely instructing
the miners to use safety equipment. A penalty of $150 will be assessed.

2050

Citation No. 159671. The allegation is that the work platform on the
northwest side of the second No. 1 primary crusher tower was filled with
12 to 18 inches of spillage in violation of 30 CFR 56.20-3(b). The standard requires that the floor of every workplace shall be maintained in a
clean and, so far as possible, a dry condition. There was no denial that
this was a work place and there was no denial that the spilled rock was
on the platform. The evidence did not establish when the spillage occurred
and when the operator knew or should have known of its occurrence. The
gravity is moderate and the negligence in the absence of the aforementioned possible evidence has not been established to be great. A penalty
of $100 will be assessed.
Citation No. 159672. The citation alleges that the troughing pulleys
under the feeder where metal sideboards protruded to create a pinch point
were not guarded in violation of 30 CFR 56.14-1. The standard requires
that gears, sprockets, chains, pickup pulleys, etc., which may be contacted
by persons, and which may cause injury to persons, shall be guarded. A
pinch point is such an area and there is no contention here by Respondent
that the area in question was not a pinch point. The only question is
whether the area is such that a person may contact the. pinch point and be
injured. It was the inspector's testimony that employees would be required
to be in the area to clean around the tail pulley, and to service the
pulleys. The Respondent's witness testified that the only time an employee
would have any reason to go to the area in question would be to perform
services when the pulley was not running. Stopping the machinery for maintenance is required by 30 CFR 56.14-29 "except where machinery motion is
necessary to make adjustments." There is no evidence in this case that
machinery motion would be necessary for the type of maintenance work
described by the inspector. If the parties had submitted diagrams or photographs, they might have sho~ whether or not the area in question was such
that a person might wander in and be injured by the ung.uarded pinch point.
As long as the attorneys, however, are content, who hover around a blackboard drawing, and have a witness point and say such things as "in order
to get from this point here over to that point, you have to pass by this
point here" they will have to be content with not having a record that
supports their contention. In such cases, I will rule against the party
having the burden of persuasion and insofar as this violation is concerned,
that party is MSHA. The citation is VACATED.
Citation No. 159673. The citation alleges a violation of 30 CFR
56.11-1 in that loose unsupported cement was hanging from the steel structure over the No. 3 tunnel conveyor travelways. The standard requires that
safe means of access be provided to all working places. Inasmuch as
employees are required to go into the tunnel involved to clean and repair,
it is a work place within the meaning of the regulations. The particular
piece of cement that the inspector consid"ered loose and unsupported, had
been in the same place and condition for 8 years at the time of the inspection. While the fact that the 1-1/2 inch thick piece of concrete had been
in place for 8 years does not guarantee that it will stay in place for an
additional day. It does bring into question the inspector's judgment as to

2051

whether it was in fact "loose, unsupported cement" the inspector's description of the violation was insufficient to support his allegation that the
cement was in fact loose and unsupported or that a dangerous condition
existed. The citation is VACATED.
Citation No. 159674. The citation alleges a violation of 30 CFR
56.16-5 in that two compressed gas cylinders were standing upright and
not secured. The violation was established beyond question, as was the
fact that Respondent was negligent. According to the inspector, however,
there was very little chance that someone would be injured by the cyclinders falling on them. A penalty of $50 will be assessed.

./

v

Citation No. 159679. The citation alleges a V-belt and drive in the
travelway was not enclosed as required by 30 CFR 56.14-1. The testimony
regarding this violation was somewhat contrary to the citation, but the
fact is that a V-belt, located in a travelway was not completely guarded.
It was also established that there was nothing to prevent miners in the
area of this V-bel t during a working shift, and that
finger could be
lost if caught in the V-belt. Respondent was neglig~nt and the violation
was hazardous. A penalty of $100 will be assessed.

a

Citation No. 159680. The citation alleges a violation of 30 CFR
56.14-1 in that the tail pulley of the No. 4 conveyor belt was not
guarded. This citation is similar to the one immediately preceding it
in this opinion, but involves a pulley rather than a V-belt. The hazard
and negligence are about the same and accordingly, a penalty of $100
will be assessed.
Citatibn No. 159681. This citation also involves an unguarded pulley
and alleged violation of 30 CFR 56.14-1. The evidence is essentially the
same as that presented with respect to the two preceding citations. The
gravity, negligence, and the violation itself were clearly established and
a penalty of $100 will be assessed.
DOCKET NO. DENV 79-140-PM
Citation No. 160809 alleges a violation of 30 CFR 56.3-5 in that men
were working drilling boulders at the toe of a 75-foot highwall with loose
·unsupported rock hanging on the wall. The standard states that men shall
not work near or und~r dangerous banks. The inspector testified that the
rock which he considered to be loose because he saw a crack on one side, was
about halfway up the 75-foot wall, and that the men were working 30 or
40 feet from the toe of this vertical wall. In order to hit the men, the
rock would have to fall away from the vertical face at an angle of approximately 45 degrees, and the testimony of the inspector did not convince me
that this could happen. Also, the citation was abated by barricading the
area, and the so called loose rock was left in place for approximately a
year before it was taken down. In the light of these two factors, MSHA has
failed to carry its burden of showing there was in fact a violation. The
citation is VACATED.

2052

Citation No. 159682 alleges a violation of 30 CFR 56.11-2 in that the
handrails around a work platform had an opening approximately 2 feet wide.
The platform in question was about 10 feet high, and the inspector could see
from the tracks that workers had stepped through the opening onto a guard
for a V-belt or pulley. He actually saw one worker step onto the guard.
There was a falling hazard, and Respondent was negligent in allowing the
hazardous situation to exist. A penalty of $50 will be assessed.
Citation No. 159683 alleges a violation of 30 CFR 56.11-1 in that an
access ladder ended at an unguarded tail pulley. The inspector stated that
if someone climbed the ladder, they could easily put their hand in the
unguarded tail pulley. Instead of citing Respondent for having an unguarded
tail pulley, the inspector chose to cite Respondent for failure to provide
safe access to a working place. Inasmuch as there is a specific standard
requiring that certain pieces of machinery be guarded, I do not believe the
safe access standard was intended to cover the same type of condition. If
the safe access standard can be stretched to cover unguarded pulley's, etc.,
it could also be stretched to cover everything from bad brakes to unsafe
blasting caps. I do not believe that was the intent of the regulation and
the citation is accordingly VACATED.
Citation No. 159684 alleges a violation of 30 CFR 56.14-1 in that a
revolving counter balance wheel, next to a travelway was not guarded.
Although this wheel was solid and did not have gears or sprockets, it was
nevertheless a dangerous piece of exposed machinery in an area where it
could injure a miner. Respondent was negligent in allowing the condition
to exist and is assessed a penalty of $100.
Citation No. 159685 alleges a violation of 30 CFR 56.14-1 in that a
revolving counter balance wheel, located in a travelway was not guarded.
This violation is the same as the previous violation except in a different
location. The hazard and negligence are the same and the same penalty of
$100 is assessed.
Citation No. 159686 alleges a violation of 30 CFR 56.11-12 in that an
opening under a wash tower along a travelway was not guarded. The evidence
established is that there was a hole 4 feet long and 18 inches wide, along
the waikway that was unguarded. A person falling through the hole would
fall about 8 feet to a metal structure and be seriously injured. The violation is established and Respondent was negligent. A penalty of $100 is
assessed.
Citation No. 159690 alleges a violation of 30 CFR 56.12-67 in that the
fence enclosure around a transformer was torn and opened in one corner. The
purpose of having a fence around a transformer, is to keep unauthorized
people away from the dangerous high-voltage connections. The tear in the
fence was 2 feet wide and easily big enough for a person to enter. The
defense was that if a person wanted to get in, he could climb over the
fence, but climbing over a 6-foot fence is obviously not as easy as walking
through a hole in the fence. I found this to be a serious violation, and

2053

that Respondent was negligent in allowing the condition to exist.
of $100 is assessed.

A penalty

DOCK.ET NO. DENV 79-176-PM
Citation Nos. 159692, and 159699 were withdrawn by the Solicitor and no
evidence was presented with the respect to them. They are accordingly,
VACATED.
Citation Nos. 159675, and 159695 both allege a violation of 30 CFR
56.11-2 in that walkways where not equipped with toeboards. The inspector
issued the citations because of that hazard to workers below the platforms
here in question. The standard states:· "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."
In my opinion, the requirement of toeboards is for the protection of the
workers on the walkway, and not for protection of those underneath. 30 CFR
57.11-7-8 does provide that walkways and ramps be kept free of loose rock
and extraneous materials, but that standard was not m&ndatory when the citations were issued. MSHA cannot enforce a nonmandatory standard by trying
to stretch a mandatory standard tq fit. The citations are VACATED.
Citation Nos. 159676, 159678, 159689, 159693, and 159694 all allege a
violation of 30 CFR 56.14-1. They involve the failure to adequately guard
balance wheels, and a V-belt. All were clearly unguarded and were accessible
to workers. They all appeared to involve about the same degree of hazard
and negligence, and I am assessing a penalty of $100 for each citation, or a
total of $500 for this group.
Citation Nos. 159696, and 159697 both allege a violation of 30 CFR
56.14-1 in that head pulley's were not guarded and the pinch points were
approximately 4 feet off of a work platform. The defense is that the only
reason a miner would have for going in the area of these head pulley's, would
be for maintenance, and that when maintenance is performed the machinery
is shut down. That defense may reduce the likelihood of injury, but the
standard is designed to protect anyone using that walkway whether he has any
reason to be there or not. The required guards were missing, and Respondent
was negligent. The gravity appears to be equal, and a penalty of $100 for
each violation will be assessed, which is a total of $200 for this group.
Citation Nos. 160802, and 160803 both allege a violation of 30 CFR
56.14-1 in that pinch points of troughing rollers and side boards were not
guarded, and were within 3 feet of the walkway. I had occasion to consider
a similar condition, in Dravo Lime Company v. MESA, IBMA 77-M-l, October 28,
1977, and I ruled in that case that standard 56.14-1 does require guards in
the vicinity of troughing rollers and sideboards. I am still of the same
opinion, and the ruling here is the same. The required guards where missing,
Respondent was negligent, and the gravity is the same. A penalty of $100
each will be assessed, or a total of $200 for this group.

2054

Citation Nos. 160801, 160804, and 160805, all allege violations of
30 CFR 56.11-12 in that openings in the floor through which men or material
may fall were not protected by railings or covers. While the unguarded
holes varied in size, the inspector thought that a man could fall through
any of them, and would fall about 12 feet. He also thought objects could
fall through the holes onto people below. The standard clearly requires
guards or covers over such holes, and the fact that the inspector saw no
one in the area is no defense to the allegations contained in the citations.
I do not consider the possibility of a 12-foot fall through holes of a size
involved here as serious as the unguarded belts, and pulley's, and fly wheel,
etc., but the possibility of injury existed, and Respondent was negligent
in not guarding these openings. A penalty of $50 each will be assessed, or
a total of $150 for this group.
Citation No. 159691 alleges a violation of 30 CFR 56.12-68 in that the
fence surrounding a transformer was not locked. While the evidence is far
from conclusive, it appears likely that the citation here was issued within
minutes of Citation No. 159690 involved in Docket No. ·DENV 79-140. I t does
appear that the inspector looked at the fence, cited Respondent because of
the hole which a miner could walk through, and then cited the operator
because there was no lock on the gate. If the fence i~ torn open, there
is hardly any point in having the gate locked, and in my opinion, only one
citation should have been issued. The instant citation is accordingly
VACATED.
Citation No. 159698 alleges a violation of 30 CFR 56.12-8 in that a
"conduit was broken and the connector box was missing, leaving the splice
open on the No. 8 conveyor belt drive motor * * *·" The evidence presented
by the Secretary was somewhat confusing as to this alleged violation, and
did not describe a situation where power wires pass into or out of electrical compartments. That is what this mandatory standard is concerned with.
The citation is VACATED.
Citation No. 159700 alleges a violation of 30 CFR 56.14-2 in that a
travelway was not guarded against the whipping action of a broken overhead
conveyor belt. The violation was clearly established, and injury could
result from having a broken belt fall on a miner. Respondent was negligent,
and a penalty of $100 is assessed.
Citation No. 160806 alleges a violation of 30 CFR 56.11-1 in that in
order to gain access to a travelway at the top of the bend, miner's are
required to climb through or over handrails, and through openings in the side
of the building. There is a gap between 24 and 30 inches between the handrails in the side of the building. A 30- to 40-foot fall could result. The
standard requires the operator of a mine to provide safe access to all working places, and Respondent has failed to do so in this instance. That failure was negligent, and a serious accident could result. A penalty of $200 is
assessed.

2055

ORDER
It is therefore ordered that Respondent pay to MSHA, within 30 days,
a total penalty in the amount of $2,650~

(?.. ~~ ~

Charles C. Moore, Jr.
Administrative Law Judge
Distribution:
Barbara G. Heptig, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202.
(Certified Mail)
Ralph w. Scoggins, Esq., Suite 342, 5959 Gateway West, El Paso, TX
79925 (Certified Mail)

2056

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO•. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceedings

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

Docket No. WEST 79-94-M
A/O No. 04-00010-05001

Petitioner

v.
Docket No. WEST 79-96-M
A/O No. 04-00010-05003

RIVERSIDE CEMENT COMPANY,
Respondent

Docket No. WEST 79-138-M
A/O No. 04-00010-05006
Crestmore Mine and Mill
Docket No. WEST 79-176-M
A/O No. 04-00010-05008
Docket No. WEST 79-177-M
· A/O No. 04-00010-05009
Docket No. WEST 79-198-M
A/O No. 04-00010-05007
Crestmore Plant
DECISION
Appearances:

Alan Raznick, Esq., Office of the Solicitor, U.S. Department
of Labor, San Francisco, California, for Petitioner, MSHA;
D. Marshall Nelson, Esq., Riverside Cement Company,
Newport Beach, California, for Respondent, Riverside Cement
Company.

Before:

Judge Merlin

The above-captioned cases are petitions for the assessment of civil
penalties filed by the Mine Safety and Health Administration against
Riverside Cement Company. A hearing was held on November 27, 1979.
At the hearing, the parties agreed to the following stipulations:
1.

The operator is large in size.

2057

2.

The operator has no history of prior violations.

3. The operator's ability to continue in business will not be affected
by the imposition of any penalties herein.
4. There was good faith abatement with respect to the twelve alleged
violations which involved an alleged violation of 30 CFR 57.14-1 (Tr. 2-3).
Citation Nos. 376299, 375252, 375253, 375254, 376341, 376347, 376348,
376305, 376309, 376313, 376327, 375285.
Each of these citations alleges a violation of 30 CFR 57.14-1. At the
hearing, the Solicitor and the operator introduced documentary exhibits and
testimony with respect to these citations (Tr. 1-53). Upon conclusion of
the testimony, counsel for both parties waived the filing of written briefs,
proposed findings of fact and conclusions of law. Instead, they agreed to
present oral argument and receive a decision from the bench (Tr. 53-54).
After considering the evidence and oral argument, a decision was rendered
from the bench as follows (Tr. 61-64):
Citation 003J6299 involves a petition for the assessment
of a civil penalty based upon an alleged violation of section
57.14-1 of the mandatory standards.
Section 57.14-1 provides as follows: "Gears; sprockets;
chains; drive, head, tail, and take-up pulleys; fly wheels;
couplings; shafts; saw blades; fan inlets; and similar exposed
moving machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded."
Tne condition set forth in this citation is as follows:
"The exposed moving machine parts (rollers) under the feed
chutes where skirtiIJ.g is provided along the tail pulley area
of crusher conveyor number eleven were not guarded. These
rollers on the conveyor may be contacted by persons which may
cause injury. This is located at the top deck of the
secondary crusher."
Three MSHA inspectors testified, including the inspector
who issued the subject citation. They all stated that
Section 57.14-1 would be cited in a case such as this because
it presented a very dangerous situation. The hazardous condition was presented because a skirt board was present,
attached to the belt at this location to prevent spillage.
Due to the skirt board there was no play in the belt so that
if an individual got caught between the belt and the rollers,
he would not have time or space to get out and would be

2058

seriously injured. All the inspectors agreed that rollers
along th~ belt where skirt boards are not present would not
be cited under this mandatory standard.
I find there was no violation.
Section 57.14-1 talks of gears, sprockets, chains, drive
pulleys, fly wheels, couplings, shafts, saw blades, fan
inlets and "similar exposed moving machine parts". MSHA did
not explain how or why rollers could be construed as similar
to the enumerated items in the mandatory standard. Even more
importantly, MSHA only cites rollers where skirt boards are
present. As already stated, one of the inspectors specifically indicated that MSHA would not cite a roller where no
skirt board was present, because if there was an injury from
an individual touching a roller, it would not be a serious
injury. I reject this argument. A mandatory standard simply
cannot be administered on this basis. What constitutes or
what might constitute a serious injury is so subjective that
an operator would~never know what was expected of it.
Moreover, if rollers fall within the definition of
"similar exposed moving machine parts", then they are always
within the definition and should be guarded everywhere. In
other words, reference to this mandatory standard for this
case either proves nothing for MSHA or it proves far too
much. The Solicitor, during his oral argument, admitted that
MSHA was selectively applying this mandatory standard to
situations only where a serious injury would result. However,
as I already have stated, a mandatory standard simply cannot
be utilized in thi~ way. Undoubtedly, a hazard is presented
by the cited condition and by other such conditions, but it
is unfair to the operator and to the inspector as well to
attempt to use a standard which either goes nowhere or goes
too far. The proper course would be for MSHA to amend the
regulations to cover this situation.
I have neither the authority nor the inclination to substitute myself for the rule-making procedures set forth in
the Act. The Secretary must realize that he cannot circumvent rule-making procedures regardless of how time-consuming
they may be by attempting to persuade Judges of the Commission
to interpret existing regulations in an unfair and unreasonable manner.

I note that in Secretary of Labor v. Massey Sand and
Rock Company, Docket Number Denver 78-575-PM, dated June 18,
1979, Administrative Law Judge Koutras vacated ten citations
under analogous circumstances. The reasons for my determination today are set forth herein. l./
'};./ As I advised the Solicit.or during oral argument, on July 27, 1979,
the Commission denied the Secretary's petition for discretionary review
of Judge Koutras' de~ision (Tr. 60).

2059

The parties have agreed that the interpretation adopted
for citation 00376299 will govern eleven other citations
involving this mandatory standard.
Accordingly, I hereby vacate the following citations:
376299, 375252, 375253, 375254, 376341, 376347, 376348, 376305,
376309, 376313, 376327, and 375285.
The foregoing twelve citations are-vacated and no penalty
will be assessed.
The bench decision is hereby affirmed.
Citation Nos. 375261, 376323, 376318, 376340, 376286, 376310, 376291.
The Solicitor moved to vacate these citations, stating that he did not
feel there was sufficient evidence available to prove these violations.
From the bench I granted this motion (Tr. 65). The granting of the Solicitor's motion to vacate is hereby affirmed.
Citation No. 376332.
The Solicitor moved to have a settlement approved for Citation No.
376332 in the amount of $305, reduced from the original assessment of $530.
The citation involved the inspector's finding of material spillage on the
top work deck of the No. 2 reclaimer, a violation of 30 CFR 57.20-3(b). The
Solicitor stated that there was apparently some confusion on the operator's
part concerning the existence of a violation, and that this might have caused
a delay in the abatement of the condition. From the bench I approved the
settlement, stating that $305.00 was a substantial amount which would
effectuate the purposes ·of the Act and that the original penalty seemed high,
since the application of the Act to an operation such as this was very
new (Tr. 66). Approval of this settlement from the bench is hereby affirmed.
Citation Nos. 375248, 375250, 375259, 375265, 375267, 376284, 376301,
376302, 376330, 375278, 375280, 375286, 376315, 376319, 375258, 375268,
376285, 376342, 379001, 376283, 376322, 376311, 376336.
The Solicitor moved to have a settlement approved for these citations
in the amount of $1,826, 2./ which was the originally assessed amount. The
Solicitor stated that ordinary gravity and ordinary negligence were involved
in all of these citations. From the bench I approved these recommended settlements after having reviewed typewritten summaries of all the violations
(Tr. 68). Approval of these settlements from the bench is hereby affirmed.
2/ $1,826 added to $305 is $2,131 which was the figure referred to by the
Solicitor (Tr. 67).

2060

ORDER
It is hereby ORDERED that as set forth herein, the vacation of
certain citations from the bench be AFFIRMED and that the imposition of
penalties from the bench with respect to other citations, also as set
forth herein, be AFFIRMED.
In
ORDERED to pay

the operator is
this decision.

Assistant Chief Administrative Law Judge
Issued:
Distribution:
Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor,
11071 Federal Bu"ilding, 450 Golden Gate Avenue - Box 36017,
San Francisco, CA 94102 (Certified Mail)
D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport
Center Drive, Newport Beach, CA 92660 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

2061

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceedings
Docket No. WEST 79-45-M
A/O No. 04-00011-05001

v.
RIVERSIDE CEMENT COMPANY,
Respondent

Docket No. WEST 79-46-M
A/O No. 04-00011-05002
Docket No. WEST 79-47~M
A/O No. 04-0011-05003
Oro Grande Plant

DECISION
Appearances:

Alan Raznick, Esq., Office of the Solicitor, United States
Department of Labor, San Francisco, California, for Petitioner,
MSHA;
D. Marshall Nelson, Esq., Riverside Cement Company, Newport
Beach, California, for Respondent, Riverside Cement Company.

Before:

Judge Merlin

The above captioned cases are petitions for the assessment of civil
penalties filed by the Mine Safety and Health Administration against Riverside Cement Company. A hearing was held on November 27, 1979.
At the hearing, the Solicitor moved to vacate six citations, stating
that after reviewing the evidence available to MSHA regarding these citations, he had determined that MSHA could not prove the existence of the
citations or the conditions that were cited in the citations. The citations
MSHA moved to vacate were: 375084, 375091, 375092, 375505, 375513, and
375119. From the bench I granted the motion to vacate.
The Solicitor then moved that the remaining citations in these cases
be settled for 100 percent of the assessed penalty, an amount totaling $510.
He explained that after reviewing the evidence he had concluded that moderrate gravity and ordinary negligence were involved. I accepted the Solicitor's representations after I had independently reviewed each and every
one of the citations. I pointed out that the assessed amounts were low but
that I kept in mind that.the Act was being newly applied to an operation
such as this.

2062

ORDER
The decision granting the Solicitor's motion to vacate citations 375084,
375091, 375092, 375505, 375513 and 375119 is hereby AFFIRMED;
The acceptance of settlements i~ the amount of $510 for citations
375097, 375506, 375107, 375110, 375114, 375120, 375525, 375085, 375089,
375093, 375095, 375104, 375499 and 375501 is hereby AFFIRMED; the operator
is ORDERED to pay $510 within 30 days from the date of this decision.

~~\\\~~-L~--

Paul Merlin
Assistant Chief Administrative Law Judge

Issued:
Distribution:
Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor,
11071 Federal Building, 450 Golden Gate Avenue - Box 36071,
San Francisco, CA 94102 (Certified Mail)
D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport Center
Drive, Newport Beach, CA 92660 (Certified Mail)
Administrator, Metal & Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

2063

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

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

Civil Penalty Proceeding
Docket No. WEST 79-98-M
A/O No. 04-00010-05005
Crestmore Plant

RIVERSIDE CEMENT COMPANY,
Respondent
DECISION
ORDER TO PAY
Appearances:

Alan Raznick, Esq., Office of the Solicitor, U.S. Department
of Labor, San Francisco, California, for Petitioner, MSHA;
D. Marshall Nelson, Esq., Riverside Cement Company, Newport
Beach, California, for Respondent, Riverside Cement Company.

Before:

Judge Merlin

This case is a petition for the assessment of two civil penalties filed
by the Mine Safety and Health Administration against Riverside Cement Company.
At the hearing, the Solicitor moved that the two citations in this proceeding be settled for 100% of the assessed proposed penalty, amounting to
$555. He explained that the gravity involved was serious but that ordinary
negligence was involved, and that he felt the proposed penalty to be a fair
one. From the bench, I stated the following:
I want to state for the record what everyone here should
know, and that is that a penalty proceeding before the judges
of the commission is de novo; therefore, I'm not bound by the
assessed amounts, either upwards or downwards. I have, therefore, reviewed both of these citations and the inspector's
statement which were attached to the Solicitor's Motion to
approve settlement. It appears to me that the proposed settlements are substantial and will effectuate the purposes of
the Act. Accordingly, they are approved, and the operator is
directed to pay $555.00 (Tr. 3).

2064

ORDER
The operator is ORDERED to pay $555 within 30 days from the date of
this decision.

~ \-, ~"' ' °"'

r

~~~\\~.
Paul Merlin
\
Assistant Chief Administrative Law Judge
Distribution:
Alan Raznick, Esq., Office of the Solicitor, U.S. Department of Labor,
11071 Federal Building, 450 Golden Gate Avenue - Box 36017,
San Francisco, CA 94102 (Certified Mail)
D. Marshall Nelson, Esq., Riverside Cement Company, 610 Newport Center
Drive, Newport Beach, CA 92660 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

2065

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

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

Civil Penalty Proceedings
Docket No. DENV 79-123-PM
A/O No. 45-00572-05001

v.
Acme Pit & Plant Mine
ACME CONCRETE COMPANY,
Respondent

Docket No. DENV 79-124-PM
A/O No. 45-00659-05001
Matheson Pit Mine

DECISION
Appearances:

Marshall Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Monte Geiger, Director, Governmental Services & Safety,
Inland Empire Chapter of General Contractors, Spokane,
Washington,· for Respondent.

Before:

Judge Charles C. Moore, Jr.

It was stipulated at the outset that Respondent has no prior history
of violation, and that any penalty will not impair its ability to continue
in business. I find the operator is medium in size and that all violations
found to have occurred were abated promptly and in good faith. Matters of
negligence and gravity will be considered with respect to each individual
citation.
DOCKET NO. DENV 79-124-PM
The citation here was not introduced into evidence, but a copy was
attached to the petition. It is Citation No. 346027 and alleges a violation
of 30 CFR 56.9-11 in that there were radial cracks in the windshield of a
front-end loader. The principal impact area was in the right upper corner
of the windshield, but the radial cracks extended to the area in front of
the driver and at that point were about 2 inches apart. The standard does
not specifically prohibit cracked windshields, but it does require that windshields be maintained in good condition and inasmuch as these cracks
impaired the driver visibility, the window was not being maintained in good
condition. It was conceded that the cracks were caused by children throwing
rocks down into the pit and hitting the windshield.

2066

The abatement consisted of removing the broken windshield, installing
a large metal grill work in front of the window space and then replacing the
glass window. Respondent's Exhibit No. 1 contains two photographs of the
grill work designed to protect the windshield. While this grill work is considered as satisfactory abatement by MSHA, it is conceded that the grill
restricts the drivers visibility more than the cracked windshield which was
considered a violation. In other words, the situation is more hazardous now
that the ~itation has been abated than it was at the time the citation
was issued. In the circumstances, I have to consider negligence and gravity
as extremely small. A nominal penalty of $1 is assessed.
DOCKET NO. DENV 79-123-PM
At the outset of the hearing with respect to this docket number, the
Solicitor's attorney withdrew the following citations: 346017, 346019,
346021, 346022, and 346023. Those citations are accordingly VACATED.
Citation No. 346016 alleges a violation of 30 CFR 56.9-22 in that a berm
was not provided on an outer bank of the elevated roadway to the crushing
plant feed hopper. The evidence establishes that the road is used for hauling stone to the crusher and that on one side it is elevated about 4 feet
above the surrounding terrain. On the elevated side, the angle of the bank
at the edge of the road is approximately 32 degrees from the horizontal.
While a 4 foot elevation with a 32 degree angle does not seem like a condition a frontend loader would have difficulty in negotiating, these were
wheeled loaders and it was the inspector's opinion that one could possibly
turn over if one wheel went over the edge. No witness appeared to dispute
the inspector's testimony, and I will accordingly find that there was a
possibility of an injury, in view of the angle and elevation, however,
together with the fact that the front-end loaders contained roll over protection and seatbelts I think the gravity of the violation was very low. I
also find a low order of negligence and assess a penalty of $25.
Citation No. 346018 alleges a violation of 30 CFR 56.9-7 in that an
unguarded surge conveyor with a walkway alongside was not equipped with an
emergency stop device. While the regulations define "travelway" there is
no definition of "walkway" in the regulations. Inasmuch as it is the purpose of the regulations to protect the miners, I am going to consider a
walkway to mean, a place were a miner could reasonably be expected to walk
even if he has no job related reason for going to the area in question. I
believe the area involved in this surge tunnel was a walkway, and for that
reason, either a guard or a stop cord was required on the conveyor. I find
there was very little negligence and in the absence of any testimony concerning a pinch point I find the gravity was not high. A penalty of $25
will be assessed.
Citation No. 346020 alleges a violation of 30 CFR 56.14-1 in that a
tail pulley was unguarded. The inspector. testified that a person could be
injured at the pinch point, but that the structure of the conveyor itself
guarded three-fourths of the area in question. He seemed to think it unlikely that someone would be injured. It was nevertheless a violation to leave
a part of the pulley unguarded even though the negligence and gravity are of
a low order. A penalty of $25 is assessed.

2067

Citation Nos. 346024 and 346025 both involve radial cracks in winding
of equipment as did Citation No. 346027. The facts are similar and the same
penalty is accordingly assessed, $1 for each citation.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within 30 days,
a civil penalty in a total amount of $78.

~~0;~~·

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:

Marshall Salzman, Esq., Office of the Solicitor, U.S. Department of
Labor, 450 Golden Gate Avenue, Box 36017, Room 10404 Federal
Building, San Francisco, California 94102 (Certified Mail)
Monte Geiger, Director, Governmental Services & Safety, Inland Empire
Chapter, Association of General Contractors, P. o. Box 30266,
Terminal Annex, Spokane, Washington

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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

CYPRUS INDUSTRIAL MINERAL CORP.,
Applicant
v.

Application for Review

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

Order No. 34205
August 3, 1978

Docket No. DENV 78-558-M

Respondent
DECISION
Appearances:

Scott H.~ Dunham, Esq., 0 'Mel veny & Myers, Los Angeles,
California, for the applicant;
Thomas E. Korson, Attorney, U.S. Department of Labor, Office
of the Solicitor, Denver, Colorado, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

This is an action filed by Cyprus Industrial Minerals Corporation
(Contestant) pursuant to section 107(e)(l) of the Federal Mine Safety and
Health Act of 1977, 30 v.s.c. § 817(e)(l), seeking review of an imminemt
danger closure order issued by MSHA inspector Donald K. Everhard on
August 3, 1978, pursuant to section 107(a) of the Act. The withdrawal
order, No. 342065, cited a violation of 30 CFR 57.3-2, and the condition or
practice which the inspector believed constituted an imminent danger warranting closure of the "whole mining area of the Bosa! Ill claim," is
described as follows on the face of the order: "Dangerous loose rock and
overburden was present on the north side of drift immediately above the
working level of the drift. The face and south rib also had not been completely scaled and dangerous loose rocks were observed also."
In its review petition, contestant asserted that the order was improprly and unlawfully issued because (1) the area which is the subject of the
order is not a mine within the meaning of the Act and was beyond the jurisdiction of MSHA, and (2) even if the area cited can be construed to be a
"mine," the operator was one Leonard "Pee Wee" Holmes, an independent contractor who was in fact the "operator" at the time the order issued.

2069

Respondent· filed an answer to the review petition on September 7, 1978,
and moved to dismiss on the ground that contestant failed to include a copy
of the order with its petition. Applicant filed a response to the motion,
and by order issued by me on September 21, 1978, respondent's motion to dismiss was denied, and by notice of hearing issued on October 12, 1978, the
matter was scheduled for a hearing on the merits in Helena, Montana,
November 17, 1978~
On November 6 , 1978, respondent filed a motion for a continuance of
the hearing on the ground that MSHA was in the process of reviewing its
enforcement policy with regard to independent contractors and that there was
a good possibility that in light of this review, the parties would probably
resolve the matter without the necessity of a hearing on the merits. By
order issued by me on November 8, 1978, the case was continued, and on
January 24, 1978, I issued another order directing the parties to advise me
of the.status of MSHA's policy review concerning independent contractors and
whether the case should be scheduled for hearing. On February 6, 1979,
respondent's Arlington, Virginia Solicitor's Office advised me by letter
that MSHA had not changed its enforcement policy with regard to citing mine
owners for violations committed by independent contractors and that it did
not appear that any future policy changes in this regard would be applied
retroactively. The Solicitor also advised that the order in question was
still in effect and that a hearing would be required. Accordingly, by
notice issued April 13, 1979, a hearing was scheduled for Helena, Montana
on July 17, 1979, and the parties appeared and participated therein. The
parties waived the filing of written proposed findings and conclusions but
were afforded an opportunity to present their respective arguments on the
record at the hearing, and the arguments presented have been considered by
me in the course of this decision.
Issues
1. Whether the area'where the alleged imminent danger was found was a
mine within the meaning of the Act.
2. Whether the conditions cited and described by the inspector presented an imminent danger warranting the issuance of a closure order pursuant to section'l07 of the Act.
3. Whether the mine owner, rather than the independent contractor,
was the proper party to be served with the closure order in question.
4. Additional issues raised by the parties are identified and discussed in the course of this decision.
Stipulations
The following admissions and stipulations were made by the parties
(Exhibit JE-1):

2070

1. This review proceeding is properly before me pursuant to section
107 of the Act.
2. Applicant Cyprus Industrial Minerals (CIM) is an operator of certain mines generally subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977, 30 U. S.C. §§ 801 et ~· (the "Act"), and MSHA is
the governmental agency responsible for administration and enforcement of
the Act.
3. Leonard "Pee Wee" Holmes is an independent exploration contractor
who contracted with CIM to perform work for CIM on property owned by CIM
according to his own methods and without being subject to the control of
CIM except as to the final result of his work. Holmes contracted with CIM
to establish a portal and drive two exploration drifts for CIM, one at its
Snow White Mining Claim and the other at its Bosal #1 Mining Claim. CIM
specified the work it wished performed and the geographical area wherein the
work was to be performed but Holmes was solely responsible for achieving the
results desired by CIM. The only work being performed was for assessment.
There was no production at these sites.
4. In performing the work for CIM, Holmes furnished all the equipment,
manpower and supplies. CIM did not supervise or otherwise direct Holmes in
his work. He exercised complete control over the area in which he was working. He was not an agent or an employee of CIM. The completed work, however, inured to the benefit of CIM.
5. Holmes has worked as an independent exploration contractor for more
than 10 years and has worked in underground and aboveground mining of
minerals for approximately 35 years.
6. Raymond Pederson was an employee of Holmes. He was not an agent or
enployee of CIM. · Holmes hired Pederson to work with him to perform the work
Holmes contracted to do for CIM. Pederson had worked in aboveground and
underground mining of minerals for approximately 18 years.
7. The alleged violation of the Act cited in Order No. 342065 occurred
during the course of work performed by the independent contractor, Holmes,
and his employee Pederson. None of the employees of CIM were endangered by
or involved in the occurrence which resulted in Order No. 342065.
8. Holmes is not in any way affiliated with CIM other than pursuant
to the Agreement for Services executed by Holmes and CIM which called for
Holmes to do certain construction work. The Agreement for Services provided
that the relationship between CIM and Holmes was to be that of owner and
independent contractor.
9. By Thursday, July 27, 1978, Holmes and Pederson completed without
incident the portal and exploration drift at CIM's Snow White Mining Claim.
The following day, Friday, July 28, 1978, Holmes and Pederson began working
to establish a portal and exploration drift at CIM's Bosal #1 Mining Claim.

2071

10. On Wednesday, August 2, 1978, Holmes and Pederson began preparations for setting posts for the portal at the Bosal #1 Mining Claim. They
proceeded to clear away the muck that had collected at the base of the
portal as a result of barring and scaling the face of the hill. Also on
Wednesday, Holmes and Pederson used a frontloader CAT 988 to clear the
overburden above the portal. They also scaled from the top of the hill as
well as from the ground and barred and scaled the brow.
11. On Thursday, AUgust 3, 1978, Holmes and Pederson began working
around 8 a.m. They did more barring and scaling of the face of the hill in
preparation for setting posts. They completed the barring and scaling to
their satisfaction and were in the process of setting the posts when rocks
suddenly broke loose from the face of the drift and struck Pederson, crushing him. Pederson was pronounced dead at the scene.
12. On August 3, 1978, MSHA inspector Donald K. Everhard served
Order No. 342065 to Donald F. Kennedy of CIM. Order No. 342065 was issued
pursuant to Secretarial Order No. 2977. Mr. Everhard believed that the
barring and scaling had not been completed satisfactorily because of the
presence of loose rock.~
Testimony and Evidence Adduced by the Respondent MSHA
MSHA inspector Donald K. Everhard testified that he has been associated
with the mining industry since 1948, and with MESA and MSHA as a mine
inspector for the past 5-1/2 years. He has also worked as a contract miner
and is familiar with the hazards of loose rock, since he has observed loose
rock fall and has attended classes dealing with the subject. He went to the
job site in question after receiving a phone call from his office advising
him that there had been a fatality there. He arrived there at about
4:45 p.m., and CIM engineer Don Kennedy, State mine inspector Bill Gilbert,
and contractor Leonard Holmes were there when he arrived. Mr. Holmes
explained what had taken place, and they examined the site from a safe distance. From the top right-hand edge of the site which had been cleared of
loose rock, he observed loose rock in the face of the drift, some smaller
loose rock on the right-hand side, and a high overburden on the left side
(Tr. 24-28).
Inspector Everhard identified a copy of the order he issued and confirmed that it refers to section 57.3-22 and he indicated that is what he
intended to cite (Tr. 29). · He issued the imminent danger order after
observing hanging loose rock in the center of the drift which was approximately 18 feet high, and hanging loose rock on the right-side of the drift.
Although loose overburden had been cleared from the top edge of the face on
the right-hand side back about 10 to 12 feet, the left~hand side had loose
overburden above the solid rock which had not been cleared away for some
25 feet. The rock was overhanging loose rock which could have slipped at
anytime. Had work proceeded as previously done on the same schedule an
accident could have occurred. He believed the loose rock on the right hand
side should have been rebarred and rescaled and the high overburden on the
left should have been completely removed (Tr. 29-32).

2072

On cross-examination, Mr. Everhard indicated that he prepared his
"inspector's statements" no later than August 5, and that he did make reference to a violation of section 57.3-2 in the report. The loose rock he
observed hanging on the face of the drift was in the same approximate area
as the rock which fell from close to the center of the drift. He recalled
the accident investigation report of August 3, 1978, and indicated that he
prepared a rough drawing of the accident scene. The victim, Mr. Pederson,
was standing on the right side of.the drift and Mr. Holmes on the left side.
The rock which struck Mr. Pederson fell from somewhere near the center of
the drift. He took no pictures of the job site once he arrived there
because he had no camera, and he was not at the site prior to the accident.
He was told by Mr. Holmes that barring and scaling of the walls had taken
place prior to the accident and he did observe barring and scaling tools in
the area, and he had no reason to believe that it was not done (Tr. 33-40).
Inspector Everhard testified that he issued the order to the operator,
Cyprus Industrial Mineral Company, rather than Mr. Holmes because he was
verbally instructed to do so by his supervisor who advised him that this
was the policy (Tr. 40). He did not question Mr. Holmes regarding who was
controlling or supervising the operation on the day in question and he was
aware of the fact that'the accident victim was employed by Mr. Holmes and
had no affiliation with CIM (Tr. 41).
On redirect, Mr. Everhard indicated that while scaling and barring of
rock had been done when he arrived at the job site, it was not complete
because he still observed loose rock in the face area and the sides and it
was not adequately supported. He cited 57.3-22 because loose ground should
have been removed and adequately supported to eliminate the hazard of loose
rock. The operator's nearest mine is a mile and a half from the job site in
question. He considered the job site to be an underground mining operation
because there was a drift into the side of the mountain and underneath the
ground (Tr. 4 7).
In response to questions from the bench, Mr. Everhard testified that he
was told that only two men, namely Mr. Pederson and Mr. Holmes, were working
at the operation prior to the accident, and that this was the usual number
of people working there. Neither Mr. Everhard nor MSHA had previously
inspected the site at anytime. The work began there sometime in mid-July
1978. Prior to the accident of August 3, the drift had been driven some
18 to 21 feet. The men were establishing a drift under the brow into the
side of the mountain. After establishing the brow, they were to drive in
another 20 to 23 feet underground. The overburden and loose material was
removed from the drift opening by a front end loader, and a jack-leg mining
machine which was used to drill holes was also used and the material was
blasted out. A compressor was also present to produce air to run the jackleg machine, and picks, shovels, and bars were also there. The drift was
unsupported and it was an active working (Tr. 47-52).
On recross Mr. Everhard stated that he was told a half a ton of loose
rock covered the accident victim and that he was struck by a large rock.

2073

Mr. Everhard never received a copy of the contract between Mr. Holmes and
the operator, and he indicated that his description of the drilling and
blasting which was taking place was standard procedure for cutting a drift,
and while he observed a post or two lying alongside the walls, no support
timber was installed, and the two men were starting to install it at the
time of the accident (Tr. 56-57).
Applicant's

Testimony and Evidence

Donald F. Kennedy, production manager, CIM, Beaverhead Mine, testified
that 21 employees work at the mine and that it is an open-pit operation
mining talc, and is located about a mile and a half from the site of the
accident. No mining was taking place at that site and no employees of the
operator were there performing any work. He hired Mr. Holmes to do the work
there because someone was needed with experience driving underground workings for assessment work on the mining claims, and the operator had no one
with that experience. Mr. Holmes was recommended as someone who had done
this type of work and the reports on him were good. He was at the site on
one occasion prior to the accident for the purpose of showing Mr. Holmes the
second site where another adit was to be driven. The contract with
Mr. Holmes called for rhe driving of two adits, and Mr. Kennedy exercised
no control or supervision over the work performed by Mr. Holmes. The purpose of the exploration drift was to determine the width of any talc in the
area. At the time the drift was opened he did not intend to use it for
mining, and it was possible that the portal would have been so used but this
could not be determined until they knew what was found (Tr. 69-73).
On cross-examination, Mr. Kennedy testified that had the drift being
developed by Mr. Holmes produced substantial indications of the existence
of valuable minerals further steps would be taken to mine the minerals,
drilling would commence, and an open-pit mine would have been developed.
Mr. Holmes' project was'to last for some 2 or 3 weeks, and his work was not
expected to exceed 3 weeks. In fact, it.took him 2 weeks to drive the
drift. Mr. Holmes was instructed to complete another drift first, and then
start on the Basal work·(Tr. 73-77). Mr. Kennedy conceded that his company
generally could have trained its own personnel to perform the work done by
Mr. Holmes, but simply drilling a bore hole would not result in mineral
samples as large as those disclosed by developing a drift (Tr. 79). At the
time of the accident, he was the company official responsible for safety
matters (Tr. 85). In open-pit mining, problems are encountered with loose
rock (Tr. 89).
On redirect Mr. Kennedy stated that one of the considerations in hiring
Mr. Holmes to develop the drift in question was that he had prior experience
in this type of work, and the company opted not to do the work because of its
lack of expertise (Tr. 90). In response to bench questions, he testified
that no mining is presently taking place on the Snow White Claim because no
minerals of value were discovered and no mining is taking place at the site
of the withdrawal order and no equipment is located there (Tr. 90-91).
Although Mr. Holmes had not as yet developed an actual drift at the time of

2074

the accident, a trench was developed into the side of the hill. Mr. Kennedy
viewed the conditions cited in the withdrawal order and conceded that some
surface loose alluvium material was present on the left side up on the
surface (Tr. 93). He surmised that the small amount of material which fell
on the victim resulted in the fatality, and from all appearances of the fatality area he did not feel that a danger was present (Tr. 95). He believed
that the remaining material which was located some 25 feet up the high face
after the accident was small loose alluvium material consisting of rock and
dirt (Tr. 95). If he were the inspector he would have issued a citation in
order to clear some of the loose materials, but he would not have considered
the conditions an imminent danger (Tr. 97). Mr. Holmes was developing a
portal, and a portal is the initial entry into the underground drift (Tr.
98). The drift established by Mr. Holmes at the Bosal claim was identical
to the one established at the Snow 1..fuite Claim (Tr. 98, Exh. A-1).
On recross, Mr. Kennedy testified that he visited the Bosal claim
earlier prior to the accident and he did so to show Mr·. Holmes the approximate direction in which to drive the drift and Mr. Holmes intended to establish a brow at the job site in question (Tr. 100).
Leonard Holmes testified that he owns a bar and has also engaged in
contract mining for some 25 years, including experience in driving exploration drifts such as the one he was driving at the Bosa! claim, and that he
has never had an accident. He contracted with CIM to drive two exploration
drifts and he identified a copy of the contract (Joint Exh. 3). The accident victim, Ray Pederson, worked for him previously in 1975 performing
drift work, cleaning out old raises,and performing ventilation work. He paid
Mr. Pederson and Mr. Pederson had some 18 years of experience in mining,
including the driving of many exploration drifts. He and Mr. Pederson
worked on drifts at Cyprus' Snow White claim, including timbering work.
They also intended to u~e timbers at the Bosal drift work. He described the
work being performed at the time of the accident, including drilling and
cutting preparations to establish a portal, and the cleaning of the sides of
the brow in order to establish room for the installation of timbers. During
this process, he borrowed a piece of equipment from CIM to help clean off
the brow. He also described the work performed by him in attempting to clear
an area to facilitate the installation of support timbers (Tr. 103-109).
Mr. Holmes described how the accident occurred and indicated that a
"slip" was encountered and he described it as "a greasy piece of ground
that's under your rock." One of the walls "looked bad," but he indicated
that it was a granite formation which interlocked with other rock and once
this occurred "you didn't have to worry" because "the rock was interlocked."
Prior to any attempts to set posts, material was barred and scaled from the
foot of the rib wall, and the "cat" borrowed from CIM was also used for
barring and scaling. No loose rock was observed at the foot of the wall and
rib prior to the setting of the posts and he believed "we were safe." He
identified the area on Exhibit A-2, labeled "Foot wall rib" where the
accident victim was standing holding the posts when the rock fell and struck

2075

him. Mr. Holmes was standing to the left and was not struck by any rock.
The base of the drift at the time was 10 feet wide and the face was some
22 feet from where they could establish a portal and the timbering was from
the face back. The ground conditions were examined on a daily basis while
the work was being performed (Tr. 109-115).
Mr. Holmes testified that based on the existing conditions immediately
before the accident, he did not believe that an imminent danger existed,
and that after the rock fell and struck Mr. Pederson he did not intend to
continue setting posts before doing any other work. After Mr. Pederson was
killed he intended to do nothing but leave the area. Assuming he went back
the next day, he would have cleaned up the area and started ·again, and this
work would have included additional barring and scaling since once the rock
fell it would have "loosened up something else again." Once timbering
begins, barring, scaling, and cleaning out the muck would have been the
safest way to proceed. In his opinion, there was no way to bar and scale to
eliminate the hazard which existed at the time the rock fell and struck
Mr. Pederson. He had encountered loose rocks slips in the past and indicated that "you will run into that anytime you are mining." The only way to
prevent rock slippage is to timber and he was in the process of doing that
at the time of the accident. The purpose of setting the timbers was to
establish a brow underneath the face of the drift in order to support it.
Mr. Holmes defined an imminent danger" as "something that you could work
under or around if you wanted to take a chance." In his opinion, after the
accident occurred the conditions which existed did not present an imminent
danger where sbmeone would be injured or killed if they continued work in
that area. The rock which fell came from the hanging wall on the foot wall
side of the area where work was being performed. Mr. Holmes stated he was
responsible for the work being performed at the accident site because it was
his contract (Tr. 115-120).
On cross-examination, Mr. Holmes indicated that he was paid by CIM for
the work performed on the· Snow White claim, but has not been paid for the
work performed at the Basal site (Tr. 121). Mr. Holmes denied that there
was loose ground at and above the face at the time of the accident, but that
4 tons of rock struck Mr. Pederson at one time and he was not struck by a
single rock although the material came out in one chunk. The rocks fell
from approximately 4 to 6 feet above where he was holding the posts (Tr.
128). The slip of ground which caused the fall occurred 4 feet back and
2 feet into the face and they could not see it. They would not have been
working underground had they observed the slip (Tr. 129-130). The "cat 988"
which was used was owned by CIM since he did not own one (Tr. 131). Regarding the existence of any loose rock on the hanging wall side before the
accident, Mr. Holmes stated that there was "none that was of any bother to
us," but that overburden was present above the hanging wall and it could
have fallen in at any time because "when you are mining it could happen"
(Tr. 138).

2076

On redirect and in answer to a question as to whether the presence of
the overburden on the left side hanging wall presented an imminent danger,
Mr. Holmes stated "Not if they are miners, no, that hanging wall wouldn't
have bothered them one bit" (Tr. 139).
William H. Gilbert, testified that he is employed as a Montana state
mining inspector with 30 years prior mining experience in underground mining
and some surface mining experience. He was present at the mine site immediately after the accident and examined the job site immediately after the
accident. He took some measurements and some photographs. In his view, the
prevailing conditions after the accident did not present an imminent danger,
but the area would have had to been barred down again. He is authorized
under state mining laws to issue imminent danger withdrawal orders but did
not issue one in this instance because Mr. Kennedy told him that he decided
to stop the project and Mr. Holmes was going to move all of his equipment
out. In view of this, he saw no point in issuing any order and he did not
feel that the conditions at that time justified an imminent danger order and
he would not have issued one (Tr. 143-144).
On cross-examination, Mr. Gilbert stated that he would not have issued
an imminent danger order because he "didn't think the conditions were that
bad 11 (Tr. 145). He knew that inspector Everhard had issued a citation, but
did not know it was an order, and he first learned that an imminent danger
order had issued the day of the hearing (Tr. 146). Mr. Holmes would have
had to bar down the muck in order to work safely in the future (Tr. 148).
In response to bench questions, Mr. Gilbert stated that under state
law "imminent danger" is not defined. It simply states that if an imminent
danger exists a withdrawal may be issued and it remains in effect until the
condition is abated (Tr. 151-152). Regarding the conditions which prevailed
after the accident, he testified that the ground, like all surface ground,
was shattered and loose'(Tr. 153-154).
Inspector Everhard was recalled in rebuttal and testified further as to
the conditions which prevailed after the accident. Loos~, unstable overburden ground was present and it could have slipped off the top of the hanging wall and slipped into the work site onto the floor of the drift (Tr.
158). On cross-examination, Mr. Everhardtestified as to how supporting
timbers should have been installed and that a 22 foot area had been taken
out (Tr. 164). He did not cite the operator for failure to examine the face
and rib and has no way of knowing whether this was done or not (Tr. 166).
Mr. Holmes was recalled and testified that no CIM employee operated the
borrowed Cat 988 but that Mr. Pederson did (Tr. 169).
Arguments Presented by the Parties
Respondent MSHA
Respondent argues that Inspector Everhard's concern about the loose
material which remained on the hanging wall side of the overburden justified

2077

his imminent danger order and that the opinion of the state mine inspector
regarding the presence of an imminent danger should be given no weight.
Further, respondent argues that the testimony establishes that additional
work had to be performed before any mining could continue after the fatal
accident and that this factor also supports the inspector's order. As for
the independent contractor question, respondent asserts that the record
establishes that the work performed by Mr. Holmes at CIM's Snow White and
Bosal claims indicates that it was of very short duration, that Mr. Holmes
performs work at several locations and in effect has a very limited presence
on the mine site, whereas CIM has an ongoing operation and could have
performed the work itself by training its personnel• Under the circumstances, respondent submits that MSHA's discretionary policy of citing mine
operators rather than contractors is a good policy which should be affirmed.
With regard to the question as to whether the work being performed by
Mr. Holmes constituted "mining" within the meaning of the Act, respondent
argues that section 3(h)(l)(c) of the Act which defines a mine to include
"shaft, excavation, or tunnel" indicates that the work being performed by
Mr. Holmes justifies a finding that the work site was in fact a "working
to be used in the work 0£ extracting minerals" and that it is covered by the
Act (Tr. 171-179).
Applicant
Applicant argues that the primary issue in this case is the independent contractor question and CIM is not the proper party in the proceedings.
Counsel argues that the parties have stipulated that Mr. Holmes is an independent contractor and that CIM exercised no control or authority over the
work being performed by Mr. Holmes other than to instruct him as to the
results which should come from his work. Although counsel conceded that
CIM lent Mr. Holmes a bulldozer, it was operated by Mr. Holmes' employee
Pederson and not by any C~M employees. Based on the Monterey Coal Company
decision, counsel asserts that it is clear that CIM is not the proper party
in this proceeding and that Mr. Holmes, as an indispensable party, should have
been made a party and should be responsible for the imminent danger order.
As for the suggestion by MSHA that CIM train its own personnel to perform
the work done by Mr. Holmes, counsel argues that there is no requirement
under the law that it do so and that the stipulation is dispositive of this
question. Finally, counsel argues that MSHA's policy of citing mine operators rather that contractors, without any effort to ascertain such circumstances as control, operator expertise, safety considerations, etc., is
arbitrary and without legal foundation.
With regard to whether the work site in question may be considered a
"mine site" covered by the Act, counsel argued that the work being performed by Mr. Holmes was clearly work being performed in order to determine
the presence of an ore body worthy of being mined. Counsel conceded that
there was an ore body present, but argues that the work by Mr. Holmes was
exploration and assessment work and that the portal being established was

2078

not intended to be used for mining purposes. Rather, the ore would be
mined by strip mining. Since the work was preliminary to any actual mining,
counsel suggests that MSHA had no jurisdiction to cite violations.
With regard to the existence of any imminent danger, counsel relies on
the testimony of state mining inspector Gilbert who was of the opinion that
the conditions presented did not justify the issuance of such an order, and
that at the time of Mr. Everhard's arrival on the scene, all work had
ceased, Mr. Holmes had left the scene, and the deceased accident victim had
been removed. Further, counsel argues that Mr. Holmes testified that in the
event further work would have proceeded after the rock fall, the first thing
he would do would be to clear the area out and scale and bar down the materials which resulted from the apparent slip in the rock. In addition,
counsel points to the fact that Mr. Holmes observed no rock in the area which
presented any danger and that he believed the area was safe to work in
(Tr. 179-187).
Findings and Conclusions
Were the activities and work being performed by Mr. Holmes at the mine
site in question mining~operations covered by the Act, and did MSHA have
jurisdiction to issue citations and orders?
§

The Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 u.s.c.
721 et ~·, defined the term "mine" as:
(1) - an area of land from which minerals other than coal
or lignite are extracted in nonliquid form or, if in liquid
form, are extracted with workers underground, (2) private
ways and roads appurtenant to such area, and. (3) land, excavations, underground passageways, and workings, structures,
facilities, equipment, machines, tools, or other property, on
the surf ace or underground, used in the work of extracting
such minerals other than coal or lignite from their natural
deposits in no~liquid form, or if in liquid form, with
workers underground, or used in the milling of such minerals,
except that with respect to protection against radiation
hazards such term shall not include property used in the
milling of source material as defined in the Atomic Energy
Act of 1954, as amended. [Emphasis added.]

The Metal and Nonmetallic Mine Safety Act was repealed upon enactment
of the Federal Mine Safety and Health Act of 1977, P.L. 95-164, November 9,
1977. Section 3(h)(l) of this law defines a "coal or other mine" as:
(A) an area of land from which minerals are extracted
in nonliquid form or, if in liquid form, are extracted with
workers underground, (B) private ways and roads appurtenant
to such area, and (C) lands, excavations, underground passageways, shafts slopes, tunnels and workings, structures,

2079

facilities, equipment, machines, tools, or other property
including impoundments, retention dams, and tailings ponds,
on the surface or underground, used in, or to be used in; or
resulting from, the work of extracting such minerals from
their natural deposits in nonliquid form, or i f in liquid
form, with workers underground, or used in, or to be used in,
tlie milling of such minerals, or the work of preparing coal
or other minerals, and includes custom coal· preparation
facilities. In making a determination of what constitutes
mineral milling for purposes of this Act, the Secretary shall
give due consideration to the convenience of administration
resulting from the delegation to one Assistant Secretary of
all authority with respect to the health and safety of miners
employed at one physical establishment; * * *· [Emphasis
added.]
Section 104(a) of the Act provides as follows:
(a) If, upon inspection or investigation, the Secretary
or his authorized representative believes that an operator of
a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule, order,
or regulation promulgated pursuant to this Act, he shall,
with reasonable promptness, issue a citation to the operator.
Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation,
or order alleged to have been violated. In addition, the
citation shall fix a reasonable time for the-abatement of the
violation. The requirement for the issuance of a violation
with reasonable promptness shall not be a jurisdictional
prerequisite to the enforcement of any provision of this Act.
Section 107(a), provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer exists.
The issuance of an order under this subsection shall not
preclude the issuance of a citation under sectton 104 or the
proposing of a penalty under section 110.

2080

Applicant
has stipulated that it is a mine operator covered generally
by the Act. With. regard to the surface and underground activities and work
conducted by Mr. Holmes at the No. 1 Bosal Claim on contestant's mine
property, the testimony and evidence adduced here reflects that Mr. Holmes'
work was in fact work normally associated with a talc mining operation.
Mr. Holmes was driving a drift at the time of the accident and this work
included blasting, drilling, cutting, removal and cleaning of materials,
timbering, bulldozing overburden, barring and scaling of loose rock, and
attempts at establishing a brow and a portal for the express purpose of
extracting minerals. Similar work had previously been completed by
Mr. Holmes at applicant's Snow White Claim, and it seems clear that
Mr. Holmes is in fact an experienced mining man of many years experience in
driving drifts. Further, applicant conceded the existence of a mineable
ore body and that Mr. Holmes' work was directly related to the eventual
mining of that ore; and, by the very terms of the contract (JE-3)
Mr. Holmes agreed to establish a portal and to drive an exploration drift.
Under these circumstances, I conclude and find that Mr. Holmes' work at the
time of the accident were in fact mining activities within the meaning of
the Act, that the work being performed at the Bosal Claim was work at a
"mine" as defined by the Act, and that MSHA had enforcement jurisdiction to
regulate those activiti~s through the applicable mandatory safety standards
promulgated under the Act. Applicant's arguments to the contrary are
rejected.
Were the conditions described by the inspector an "imminent danger,
and if so, was the withdrawal order properly issued?
"Imminent danger" is defined in section 3(j) of the Act, 30 u.s.c.
802(j) as: "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."
§

The legislative history of the Act brings out relevant testimony with
regard to this question. The conference committee report, section-bysection analysis of the 1969 Act has the following to say about imminent
danger:
[T]he definition of an "imminent danger" is broadened from
that in the 1952 Act in recognition of the need to be concerned with any condition or practice, naturally or otherwise
caused, which may lead to sudden death or injury before the
danger can be abated. It is not limited to just disastrous
type accidents, as in the past, but all accidents which could
be fatal or nonfatal to one or more persons before abatement
of the condition or practice can be achieved.
And, at pg. 89 of the report:
The concept of an imminent danger as it has evolved in
this industry is that the situation is so serious that the

2081

miners must be removed from the danger forthwith when the
danger is discovered * * *· The serioiusness of the situation demands such immediate action. The first concern is
the danger to the miner. Delays, even of a few minutes may
be critical or disastrous.
The former Interior Board of Mine Operations Appeals has held that an
imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner or
normal mining operations are permitted to proceed in the area before the
dangerous condition is eliminated. The dangerous condition cannot be
divorced from normal work activity. Eastern Associated Coal Corp. v.
Interior Board of Mine Operations Appeals, et al., 491 F.2d 277, 278
(4th Cir. 1974). The test of imminence is objective and the inspector's
subjective opinion need not be taken at face value. The question is whether
a reasonable man, with the inspector's education and experience, would conclude that the facts indicate an impending accident or disaster, likely to
occur at any moment, but not necessarily immediately. Freeman Coal Mining
Corporation, 2 IBMA 197, 212 (1973), aff'd, Freeman Coal Mining Company v.
Interior Board of Mine Operations Appeals, et al., 504 F.2d 741 (7th Cir.
1974). The foregoing principles were reaffirmed in Old Ben Coal Corporation
v. Interior Board of Mine Operations Appeals, et al., 523 F.2d 25 (7th Cir.
1975), and in this case the court phrased the test for determining an
imminent danger as follows:
[W]ould a reasonable man, given a qualified inspector's education and experience, conclude that the facts indicate an
impending accident or disaster, threatening to kill or to
cause serious physical harm, likely to occur at any moment,
but not necessarily inim.ediately? The uncertainty must be of
a nature that would induce a reasonable man to estimate that,
if normal operations designed to extract coal in the disputed
area proceeded, it is at least just as probable as not that
the feared accident or disaster would occur before elimination of the danger.·
In a proceeding concerning an imminent danger order, the burden of
proof lies with the applicant, and the applicant must show by a preponderance of the evidence that imminent danger did not exist. Lucas Coal
Company, 1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman
Coal Mining Corporation, 2 .IBMA 197 (1973). However, since withdrawal
orders are "sanctions" within the meaning of ~ection 7(d) of the Administrative Procedure Act (5 u.s.c. § 556(d) (1970)), and may be imposed only
if the government. produces reliable, probative and substantial evidence
which establishes a prima facie case, MSHA must bear the burden of establishing a prima facie case. It should be noted that the obligation of
establishing a prima facie case is not the same as bearing the burden of
proof. That is, although the applicant bears the ultimate burden of proof
in a proceeding involving an imminent danger withdrawal order, MSHA must
still make out a prima facie case. Thus, the order is properly vacated

2082

where the contestant proves by a preponderance of the evidence that an
imminent danger was not present when the order was issued. See: Lucas Coal
Company, supra; Carbon Fuel Company, 2 IBMA 43 (1973); Freeman-coal Mining
Corporation, supra; Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111 (1975);
Quarto Mining Company and Nacco Mining Company, 3 IBMA.199, 81 I.D. 328,
(1973-1974); Kings Station Coal Corporation, 3 IBMA 322 81 I.D. 562 (1974).
At the hearing, MSHA's counsel took exception to my ruling that he
should proceed first and establish a prima facie case (Tr. 17-20). MSHA's
exception is rejected and my prior ruling made at the hearing is hereby
reaffirmed.
I am not persuaded by applicant's argument that state mining inspector
Gilbert did not believe that the conditions which existed did not constitute
an imminent danger and that he would not have issued a withdrawal order under
state law. It is clear from the record here that the state definition of an
"imminent danger" is not the same as that set forth under the Federal law in
question, and the fact that mining activities had ceased is irrelevant.
Mr. Gilbert was obviously satisfied with the fact that all mining had ceased
after the accident and order was issued and I believe that this fact served
as the basis for his opinion that he would not have issued an imminent danger order. However, he candidly admitted that additional work of scaling
and barring would still have to be done before any mining could continue
after the accident, and I find his testimony that the prevailing conditions
after the accident were "not that bad" to be somewhat equivocal. The critical question presented is not what Mr. Gilbert would have done, nor whether
Mr. Everhard should have taken some other course of action instead of
issuing an imminent danger withdrawal order, but rather, whether his action
was justified by the circumstances presented. See Eastern Associated Coal
Corporation, 2 IBMA 128, 173 (1973), where the former Interior Board of Mine
Operations Appeals stated that "[W]e are not called upon here to decide
whether the Inspector chose the most appropriate of several alternatives,
but rather, we are called .upon to decide whether the action he did take was
a proper and lawful exercise of authority under the Act." Further, the fact
that all mining activities had ceased and Mr. Holmes had withdrawn both
himself and his. equipment from the accident scene is likewise irrelevant.
As pointed out by the Board of Mine Operations Appeals in the cases of UMWA,
District #31, 1 IBMA 31 (1971), and The Valley Camp Coal Company, 1 IBMA 243
(1972), the effect of an order of withdrawal not only takes the miner or
miners out of the area of the dangerous condition, but also keeps them out
until the danger has been eliminated. In the UMWA case, the Board stated:

* * * an Order of Withdrawal is more extensive that the mere
withdrawal of miners--it also confers jurisdiction on the
Bureau to prohibit reentry until an authorized representative
of the Secretary determines than an imminent danger no longer
exists * * *· Thus the purpose of a withdrawal order is not
only to remove the miners but also to insure that they remain
withdrawn until the conditions or dangers have been eliminated. Regardless of the sequence of events of the method by

2083

which the miners were originally withdrawn, a mine, or section thereof, is officially closed upon the issuance of an
order pursuant to section 104.
Although Mr. Kennedy did not believe that an imminent danger existed
after the accident occurred, he admitted that loose alluvium materials
consisting of rock and dirt were still present some 25 feet up the high face
of the area in question, and that if he were the inspector he would issue
a citation requiring the materials to be cleaned up. Further, while
Mr. Kennedy testified that a small amount of loose materials and rock fell
on the accident victim, Mr. Holmes, who was present and an eyewitness to the
fall, testified that approximately 4 tons of materials fell on the victim
and that it came from the hanging wall side of the area where the work was
being perfon:ied. He attributed the fall of materials, including "chunks" of
rock, from a slip of the ground which he believed occurred some 4 feet back
and above where the victim was standing attempting to install some posts.
Mr. Holmes also testified that the slip was undetected and he candidly
admitted that he and the victim would not have been working in the area had
they known about the slip of ground. Further, Mr. Holmes admitted to the
existence of overburden, including loose rocks, on the hanging side of the
wall prior to the accident and while he dismissed it as something that did
not "bother" him or would be of no concern to miners, he candidly admitted that
the overburden could have fallen at any time because anything can happen
when one is engaged in mining activities. It seems to me that after the
slip of ground, which was not detected, and which apparently caused the fall
of rocks and other materials which killed and covered up the victim on the
day in question, that it was altogether likely that given the same circumstances after the accident, another slip could occur and again cause another
fatality once the work was continued. The fact that additional barring and
scaling would have again been accomplished before beginning work again a
second time would not, ~n the circumstances here presented, insure that
another slip would not occur. Barring and scaling had been previously done
by Mr. Holmes, but that did not prevent the undetected slip of ground which
caused the fatality.
Inspector Everhard expressed concern over the existence of loose,
unstable overburden and rocks, and overhanging loose rock located up an
17 foot high drift and above the area where work had ceased after the fatal
accident. He also expressed concern over the fact that he did not believe
that the drift area where the work was being performed at the time of the
accident had been adequately supported to prevent loose rocks and materials
from falling. He was concerned over the fact that had Mr. Holmes continued
work after the accident, following the same mining procedures which were
described to him at the time of the accident, another fall could occur as a
result of further ground slippage due to the loose materials present, and
that if this occurred the slip would have fallen into the area where work
would have been performed. In these circumstances, I conclude and find that
Inspector Everhard acted properly in issuing the order and that the conditions which were present as described in his order presented an imminently

2084

dangerous situation that could reasonably be expected to result in serious
injury or death before the conditions could be abated and that normal mining
activities could not continue or proceed until those conditions were abated.
Was the imminent danger order properly served on the mine owneroperator?
Applicant argues that the imminent danger order here was inappropriately served on CL~, the mine owner, and that it should have been served on
Independent Contractor Leonard "Peewee" Holmes. In support of this argument,
contestant argues that the parties have stipulated that Mr. Holmes, as an
independent contractor, was performing contract work· for CIM, and that
Mr. Holmes is an indispensable party since he was the person who was operating and in control of the "mine" at the time the order issued and that CIM
exercised no control or direction over the work being performed by Mr. Holmes
at the job site (Tr. 5-8).
Respondent MSHA's position is that the Secretary has discretion as to
which mine "operator" to cite, and that in this case, in the exercise of his
discretion, the Secretary decided to cite CIM as the owner-operator of the
mine (Tr. 13-16). Further, it is clear from Inspector's Everhard testimony
that although he was aware of the fact that the accident victim was employed
by Mr. Holmes rather than CIM, and did not inquire of Mr. Holmes as to who
was supervising and directing the work at the scene of the accident, he
issued the order to Cyprus because his supervisor instructed him that this
was MSHA's enforcement policy (Tr. 40-41). It is further clear to me that
although MSHA's counsel attempted to make a record concerning the factual
basis for the issuance of the order, i.e., supervision, direction, continuing presence on the mine, borrowed equipment, etc., that at the time the
order issued on August 3, 1978, the inspector was merely following MSHA's
enforcement policy of citing only the owner-operator and not the independent
contractor. As a matter of fact, MSHA stipulated that the order was issued
in compliance with Interior Secretarial Order 2977, a.nd I note that the
reason for the delays in this proceeding is the fact that MSHA initially
sought a continuance on November 17, 1978, on the ground that it was at that
time reviewing its enforcement policy regarding independent contractors and
the argument was then made that the review may resolve this controversy
without the necessity of a hearing. Subsequently, on February 6, 1979, MSHA
advised that no changes were made in its enforcement policy and the case
proceeded to hearing.
During the course of the argument, MSHA's counsel stated that the
Secretary's decision to issue the order against the mine owner was based on
a "matter of law and policy," and the fact that a contractor did not have a
Mine Identification Number was part of the "mix" or considerations that
goes to that policy determination (Tr. 83-84). When asked about the status
of any proposed independent contractor guidelines or regulations, counsel
stated that as of the hearing (August 3, 1979), none were promulgated but
"it is hoped that in the near future there will be issued a proposed regulation on that subject for public comment" (Tr. 84). Counsel's position was
succintly stated as follows at page 14 of the transcript:

2085

On the independent contractor issue, it is our position
that the statute with its definition of operator as including
independent contractors gives the Department of Labor the
discretion to issue citations to operators for violations
committed by their independent contractors. We think that is
a position which the Congress intended. We think that we
have the discretion to either issue the citation to the operator or to the independent contractor. We have exercised our
discretion here to issue the citation to the operator, and we
think essentially that that forecloses the issue.
And, at PP• 174-178:
On the independent-contractor issue, I submit that we
have shown that the facts of this case show why the
Secretary's policy of citing owners, operators, for the
acts or omissions of independent contractors--we have shown
why that's a good policy.
This was a very small job. The Snow White claim, which
was similar, took only three days. This particular work was
not expected to last I believe it was either two or three
weeks that the--according to the testimony of Mr. Kennedy.
Mr. Holmes is clearly the type of businessman who works
at different sites. He is hard to follow down. Cyprus, on
the other hand, is a mile away. Cyprus has an ongoing
operation. It is administratively practical for Cyprus in
these circumstances to be held to Mr. Holmes' actions.
Cyprus should be charged, and I submit that the legislative history shows that Congress intended to give the
Secretary the discretion to cite the operator. .In this
circumstance there is nothing in the legislative history
which indicates that Congress wanted the Secretary to proceed
against the independent contractor. It was for the Secretary
to decide, and I submit that that exercise of discretion by
the Secretary is sound.
JUDGE KOUTRAS: Now, let me stop you on that point. You
feel that the legislative history supports the conclusion that
the reason that Congress included an independent contractor
was to give the Secretary the discretion to--which party to
cite?
MR. KORSON: I think it was the intention to give the
Secretary the discretion to decide that issue.
JUDGE KOUTRAS:

Standard of discretion?

2086

MR. KORSON: Well, Your Honor, under the Administrative
Procedure Act, ·there are circumstances under which the discretion of an agency may be examined, yes.
JUDGE KOUTRAS:
or capricious?
MR. KOR.SON:

Which is to. see whether it's arbitrary

That's correct.

JUDGE KOUTRAS: If the agency hadn't decided for the
independent contractor without any standards at all, would
that be arbitrary or capricious?

MR. KORSON: That would be arbitrary or capricious, but
that is not what .happened here. What I. am suggesting is
there are at least two alternative positions here that could
have been taken with the Secretary here with the statutory
language. The Secretary could have concluded that he would
direct his inspectors to cite the independent contractor in
this situation, but he decided not to do that, at least for
the time being, and I submit that the two choices presented
are both entirely defensible policies based on the statute.
The Secretary's policy decision to proceed against a mine operatorowner rather than an independent contractor was recently reviewed by the
Commission in MSHA v. Old Ben Coal Company, Docket No. VINC 79-119,
October 29, 1979. While expressing some doubt concerning the Secretary's
"owners only" enforcement policy, and while expressing some concern that any
unduly prolonged continuation of a policy that prohibits direct enforcement
of the Act against contractors, the Commission nevertheless in Old Ben
affirmed the Secretary's present discretionary enforcement policy of proceeding only against the mine opeator-owner. Further, upon review of the
decision of Judge Michels in MSHA v. Monterey Coal Company, Dockets
HOPE 78-469- 78-476, rejecting MSHA's absolute or strict operator-owner
liability theory, the Commission, on November 13, 1979, reversed Judge
Michels and in so doing relied on its ruling in Old Ben.
On October 23, 1978, MSHA published a draft of its proposed regulations
dealing with certain guidelines which are intended to enable mine inspectors
to proceed directly against contractors for their violations, and on
August 14, 1979, proposed regulations were published in the Federal Register, 44 Fed. Reg. 47746-47753 (1979). Although the Commission views this as
an intent by the Secretary to enforce the Act directly against contractors
for violations they commit, and alluded to the fact that continued enforcement against owner-operators rather than contractors on the ground of administrative convenience would be an abuse of discretion and contrary to
Congressional intent, the Commission nevertheless opted to allow the Secretary additional time to implement changes in his contractor enforcement
policy and chose not to disturb the Secretary's interim policy decision to

2087

proceed solely against owner-operators out of consideration for the Secretary's "consistent enforcement for reasons consistent with the purposes and
policies of the 1977 Act." Under the circumstances, while I may be in
agreement with Judge Michels' well-reasoned ruling in his Monterey decision
and with Commissioner Backley in his dissents in Old Ben and Monterey, I am
constrained to apply the Commission's decisions in those cases to the facts
presented here, and, following those decisions,! conclude and find that the
order in question here was properly issued to CIM and contestant's arguments
to the contrary are rejected.
Although there was a question raised during the opening arguments at
the hearing with respect to the question as to whether MSHA has established
the fact of violation concerning the specific mandatory standard cited by
the inspector on the-face of his order (Tr. 10-15), it is unnecessary for
me to make a specific finding on this question at this time. It is clear,
and the parties are in agreement, that an.imminent danger order may be
validly issued and affirmed for conditions or practices constituting an
imminent danger but not constituting violations of any specific mandatory
safety standard, Eastern Associated Coal Company, 1 IBMA 233, 235 (1972).
In this regard, I take note of the fact that on November 19, 1979, MSHA
filed its proposal for assessment of civil penalty against Cyprus Industrial
Minerals pursuant to section llO(a) of the Act, seeking a $1,000 civil penalty assessment for an alleged violation of 30 CFR 57.3-22, the mandatory
safety standard cited by the inspector on the face of the imminent danger
order here in question. That matter is still pending before me and the
parties will have an opportunity to address the pertinent issues presented
in that proceeding.
Conclusion
In view of the aforementioned findings and conclusions, and on the
basis of the preponderance of the reliable and probative evidence adduced in
this proceeding, I find that the conditions described in the order of withdrawal constituted an imminent danger and that the order was properly issued.
The evidence of record supports the inspector's judgment that the conditions
he found on the day in question presented a situation that could reasonably
be expected to result in death or serious injury before the conditions could
be abated and that normal mining operations could not continue or proceed
until the conditions were abated. I have also concluded that the work being
conducted by Independent contractor Holmes for CIM at the time the order
issued were activities directly related to mining at a mine within the meaning and intent of the Act and that the order was properly issued to CIM as
the mine owner.
ORDER
Order of Withdrawal No. 342065 issued August 3, 1978, is AFFIRMED and
this proceeding is DISMISSED.

~~ut«.?'~
Administrative Law Judge

2088

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR.
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

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

Docket No. DENV 79-337-PM
A.c. No. 35-02386-05002

Petitioner

v.
Cougar Mine
W. A. BOWES, INC.,
Respondent
DECISION
Appearances:

Donald F. Rector, Esq., Office of the Solicitor, Department
of Labor, for Petitioner;
Warde H. Erwin, Esq., Portland, Oregon, for Respondent.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceeding was brought.pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977 (the Act)
30 u.s.c. § 820(a) by a petition filed February 12, 1979. A timely answer
was filed by the Respondent denying the charges and requesting a hearing.
On August 30, 1979, a hearing was held in Pendleton, Oregon, at which both
parties were represented by counsel.
Issues
1. Whether the Cougar Mine of the Respondent is engaged in "commerce"
within the meaning of that term under Section 3(b) of the Act.
2. Whether Respondent violated the mandatory standards as charged,
and, if so, the amount of penalty which should be assessed.
Commerce
The matter of whether the Cougar Mine is engaged in interstate c9mmerce
was decided tentatively from the bench for the purpose of permitting the
rendering of decisions on the merits of the citations. I found, subject to
full and complete reconsideration upon the submission of briefs, that interstate commerce was established (Tr. 44). The parties duly filed briefs on
the matter which I have carefully considered. The following is my reconsidered determination on the question of interstate commerce.

2089

Facts on "Commerce"
The following is a statement by Respondent's counsel which provides
helpful general background about the Respondent and the Cougar Mine, as well
as factual data on the issue of commerce. See pages 10-15 of the transcript.
Counsel for MSHA stipulated that if witnesses were called they would testify
to the facts contained in Respondent's opening statement. Counsel in effect
accepted the statement as facts (Tr. 18-19). It is as follows:

MR.. ERWIN: Well, basicically we have just now touched
on what I was going to say, because the evidence will probably be very simple.
There is a question, a serious question, as to whether
or not this operation is within interstate commerce. And I
think by way of opening statement I can tell you what I
expect the evidence will show because it is going to come
from our clients anyway.
One is that ~illiam Bowes, Incorporated, is not a production company. It has properties -- Now, it doesn't own
any properties. Let me put it that way first. Every property that it is in the process of developing is separately
incorporated and there are properties being developed under
contract with New York owners. There is property in Wyoming,
not being developed at all. There is a property owned by
New York people. There is property in Colorado which is
being developed I presume under a lease but no production as
far as William Bowes is concerned. There is a property in
South Mountain -- incidentally, that property in Colorado is
copper. It is a d~ff erent operation than what we are talking
about here. These are precious metal mines.
There is a property in South Mountain, Idaho, which is
not producing, has ·not produced. There is a property in
Nevada which has not produced and only assessment work is
being done on it. There is a property in southern Oregon,
but that's not true. The only other property in Oregon is
this property as far as I know.
Now, these properties are being developed with the idea
that they will perhaps some day be put into production. To
this date they have not produced any ore nor has any been
shipped from the mine, no by~product has been shipped from
the mine. They are totally in the development stage of their
operation. * * *
The purpose of the work they are doing now is eventual
production so that they can remove the precious metal from
the ore in some method. I think it is a little important

2090

that you know why this is an exceptional situation insofar
as the pr.ocessing of the raw product is concerned. And it
is because this particular vein that they are interested in
in the Cougar Mine is a type of.material which is susceptible
to what they call a heap leaching method of extraction.
Normally when we think of hard rock ore, we think of
going to a crushing plant or a reduction plant of some kind
of thing that you normally think of. And if that were true
we certainly would be having to ship ore into Tacoma and we
would probably have to have other kinds of reduction plants,
some sort of a mill someplace to do that.
Not all ore is susceptible to the heap leaching process.
So on the Cougar Mine what they have done is to build what
appears to be almost the size of a small football field and it
is paved with asphaltic pavement, it has ridges in it, squaring it off into sections so they can put a heap of ore on
this section and another heap of ore on another section and
so forth. Because in this particular case the people in
New York do not own this but they are leasing this property
from another party. So this is not an owned property. The
property is being developed for the same owners but under a
lease with a different party.
What they do when they get these heaps of ore on these
various pads, each one slopes down so that the fluid that
they use will eventually go into the same trough. They
put a hose, just like a garden hose which has holes in it
and spray like you water your lawn a diluted solution of
cyanide.
Now, cyanide as it permeates these heaps of ore carries
with it and leaches out the precious metal of both gold and
silver.
So what runs off of these piles from this other operation is a solution of cyanide. So that is saturated with
gold and silver ore, we hope.
And it is then pumped --

ALJ: Is this a new process?

MR.. ERWIN: It's not completely new but it has not been
used in this part of the country, and the only other one that
I know that is in operation is in New Mexico
no, it is in
Carlin, Nevada, where the same type of thing is used. It is
an open pit gold mine there.
After this saturated solution drains off of these piles,
it is then pumped into a tower where there is carbon columns

2091

where the water or solution rate of flow is controlled so
that it goes down through these carbon columns, the carbon
extracts from the solution basic mineral that we are
·
interested in recovering.
To date there has been no production from that except
for test purposes and that's all. None of it has been
shipped.
To be quite frank, at this moment we are having difficulty in trying to extract from the carbon columns the precious metal and determine whether or not they are getting a
sufficient quantity out of this operation to make this procedure worthwhile.
The point of all of this explanation is to show the
court and really for counsel's edification, too, that there
is nothing at this moment being shipped interstate by way of
product, nothing has been shipped outside the State of Oregon,
nothing probably will be shipped outside the State of Oregon
for a long time, {£ ever. I don't know. After they recover
the gold out of these carbon columns, I don't know whether
the gold would be sold in interstate commerce then or whether
people would come t·o the mine to pick it up. I am not knowledgeable enough to know how that would be done.
But in any event at this moment this mine is totally in
the development stages, as are the rest of the properties of
William Bowes, many of which there is no activity on yet.
They are merely in the assessment stages on many of them •

.

Counsel asked some questions about supplies. Most of
our supplies are bought locally. In fact I will ask
Mr. Henderson to testify, and I guess probably all of them
are bought locally~ I don't know where the cyanide come
from but I suspect it could be purchased locally, although
it might have to be shipped in. But my understanding is
that that doesn't constitute interstate commerce. It is
the transportation out or the sale of the product which
constitutes interstate commerce.
So there is a little question as to whether at this ·
stage we come under this act at all. And I thought it might
be helpful if I would explain to the court why this is an
unusual type of mining operation, why it is not subject to
the usual situation.
There are few other facts in the record bearing directly on the commerce question. Kenneth D. Henderson, mine manager at the Cougar Mine
testified that he was familiar with two other mine sites of the Respondent,

2092

namely, the South Mountain property in Idaho and the operation in the Steamboat Springs area, Colorado (Tr. 20). Also he testified that Cougar property is owned by a family in Baker, Oregon, and leased to the Respondent,
a New York corporation (Tr. 21).
Mr. Henderson explained that the mine was not producing ore on the
lower level but that the operator was working the upper levels on a part
time basis and the personnel used varies from 14 to as many as 25
(Tr. 21-22). The approximate length of the tunnel worked in August 1978
was about 470 feet (Tr. 27).
Explosives are used in the operator's conventional method of mining.
The explosives are purchased on a 60-day interval basis. These are obtained
in Boise, Idaho, and shipped from there to the Cougar Mine in Oregon. Fifty
cases are purchased at a time which cost a total of $2,500 (Tr. 23-24).
Discussion of "Commerce" Issue
Respondent contends that its Cougar Mine operation is solely developmental, that no ore has been produced or shipped, and that the mine operation therefore neither is in "commmerce" or affects "commerce." It cites
Morton v. Bloom 373 F. Supp. 797 (WDC Pa. 1973) as holding that a one man
coal miner who sold the production of the mine in intrastate commerce is not
subject to the provisions of the Federal Coal Mine Health and Safety Act of
1969.
In approaching this discussion, it is first noted that the delegation
of authority under the act is very proad. In affirming the District Court
decision, the United States Court of Appeals for the 3rd Circuit in Kraynak
Coal Company v. Marshall, Docket No. 78-2576
F.2d
(3rd Cir. 1979)
held on interstate commerce as follows:
~-~
Appellants also argue that the Coal Mine Act does not
reach them because their mine sells coal only intrastate to
the Penntech Papers Company. They contend that these sales
are insufficient to bring their operation within section 803,
which declares that the act covers "[e]ach coal of other
mine, the products of which enter commerce, or the operator
or products of which affect commerce." In enacting the
statute Congress intended to exercise its authority to
regulate interstate commerce to "the maximum. extent feasible
through legislation." S. Rep. No. 1005, 89th Cong.,
2d Sess. 1, reprinted in [1966] U.S. Code Cong. & Ad.
News 2072, 2072. We agree with Judge Rosenberg's conclusion
that "the selling by the defendants of over 10,000 tons of
coal annually to a paper producer whose products are nationally distributed enters and affects interstate commerce
within the meaning of § 803 of the Act." 457 F. Supp. at
911. See also Shingara, 418 F. Supp. at 694-95.

2093

While the court was passing on the 1969 Act, the present Act, the
Federal Coal Mine Health and Safety Act of 1977, was not changed with
reference to commerce. It may be concluded, therefore, that the 1977 Act
contains a delegation of authority over commerce as broad as that which
Congress can give.
Respondent's principal argument in this case, as noted above, seems to
be that because the Cougar Mine was developmental and no ore was produced,
nothing therefore either moved in commerce or affected commerce. The commerce grant in Section 4, however, does not necessarily require that products be produced. It states in part "or the operations or products of which
affect commerce" (emphasis added). "Commerce" in Section 3(b) is defined
very broadly as encompassing "trade, traffic, commerce, transportation, or
communication among the several states or between a place in a State and
anyplace outside thereof* * *"· In this case the facts, as will be related
in more detail below, show at a minimum an "operation" which affects commerce, i.e., affects any trade, traffic, transportation, or communication
among the-several states or otherwise as set out in section 3(b).
The evidence or reasonable inferences therefrom demonstrates that the
operation affects commerce in several direct ways. First, Respondent is not
a one man operation or a small, localized business as was true in the Bloom
case, supra. Far from it. Respondent is in a way a multi-state operation.
William Bowes, Incorporated, is not a "production "company, but it does
separately incorporate and under contract or lease develop certain properties. Some of the properties include one in Wyoming, one in the Steamboat
Springs area in Colorado, a South Mountain property in Idaho, a property in
Nevada and the Cougar Mine in Oregon, the subject of this proceeding.
Apparently none are at this time in production, but rather are in a developmental stage.
1he fact of these different properties in different states, even though
not in production suggests an operation which affects trade, traffic, or
communication between two or more states. It is a fair inference that communication by telephone, mail, or otherwise has occurred between states
involving the New York Corporation and the Oregon Corporation or other
properties.
Specifically concerning the Cougar Mine, although there has been no
production, the leasing of the property in Oregon by a New York Corporation
and the building of a significant facility including an area paved the size
of a small football field and all reasonable inferences therefrom permits a
conclusion that the operation has affected trade, traffic, or communication
between states. Finally, as to the Cougar Mine, the evidence expressly shows
the movement of goods from out of state: specifically, the shipments of
explosives from Boise Idaho, to the plant site in Oregon. Secretary of the
Interior v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976). Therein, the court
held that the "purchase of several items of equipment and an insurance
policy produced by out-of-state sources also brings [the mine] within the

2094

affecting commerce rubrique and exposes them to the Act." Cf. Kraynak Coal
Company v. Marshall, supra, and Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir.
1974).
Finally, the holding of the Ninth Circuit in Godwin v. Occupational
Safety and Health Review Commission, 540 F.2d 1013 (9th Cir. 1976), appears
to be dispositive of the argument that the Cougar Mine was only in the
developmental stage. In that case, involving the Occupational Safety and
Health Act, the court held that the activity of clearing land for the purpose of growing grapes is an activity which, if performed under unsafe conditions, will adversely affect commerce; that clearing land is an integral
part of the manufacturing of wine, and therefore commerce is affected by the
activity. In this proceeding, the activity of developing a mine is an
integral part of gold mining and the subsequent production of gold and
similarly will affect commerce.
Based on the above cited facts and circumstances, I affinil my decision
from the bench that the Respondent at its Cougar Mine facility is engaged
in "commerce" within the meaning of that term in the Act and subject to the
Act and the regulations.
Decisions on the Citations
Citation No. 350060
The decision made orally from the bench on this citation is contained
in the record at pages 70-75 and reads as follows:
This decision deals with Citation No. 00350060. My
finding on the fact of the alleged violation is as follows:
The mandatory standard in this case, alleged to have
been violated, is 30 CFR 57.13-21 and reads as follows,
"Except where automatic shutoff valves are used, safety
chains or other suitable locking devices shall be used at
connections to machines at high pressure hose lines of
three quarter inch inside diameter or larger, and between
high pressure hose lines of three quarter inch inside
diameter or larger, where a connection failure would
create a hazard."
The inspector in citing the ·violation stated, "A safety
chain or other suitable locking device was not used at the
connection of the high pressure air line to the jack leg air
drill in use at the face of the decline to prevent persons
from being injured in the event the air line came loose from
the drill."
The evidence consists mainly of the testimony of the
inspector and is not in dispute on most aspects of the charge.
The inspector did testify that he found -- or that he

2095

observed the jack leg drill in use and while he did not see
an automatic shutoff valve, he believed that there may [not]
have been one. He also observed that the machine was of the
type that normally requires the three quarter inch inside
diameter hose. He also observed that the jack leg drill did
not have the safety chain or other suitable locking device.
A locking pin was acceptable to the inspector and abatement
consisted of inserting of the locking pin.
I find these to be the facts •. And I should add that no
evidence in defense was presented which would suggest that
there was an automatic shutoff valve or that this machine
otherwise was not covered by this mandatory standard.
In circumstances and for the reasons that I am going to
shortly explain, I find this to be a violation of the standard as charged.
The principal defense as I understand it and which I
believe deals with the aspect of negligence more than it
does the fact of the violation is to the effect that this
was the fault of the individual employee. However, I will
deal with that right here and now because it was a defense
raised.
Perhaps my view is colored to some extent. I have grown
up and developed under the coal mine law or when the law was
applied only to coal mines. The question of responsibility
of the operator was fairly early settled and did not ever
seem to be in serious doubt. I think the legislative history,
the way the Act is.written, all tell us that Congress intended
for the operator and not the employee to be held responsible.
It was only I think in perhaps one rare instance, and that is
in the securing of the smoking materials, do they ever place
responsibility on the employee.
Now, I fully recognize and I think that everybody that
works with this does, that there are occasions when no matter
what the operator does, it is just simply impossible to carry
out a particular regulation. That is, where you fail to get
the employees' cooperation. Some of those areas I have mentioned previously. That is, personal protective devices.
And the board has ruled on that.
However, in other areas dealing with the use of machines
and devices, I don't think that rule applies.
The argument was made and put very strongly and very
ably, that * * * it was impossible for the operator here
to comply with this particular regulation, and I would say

2096

from what I have seen, that it was perhaps difficult, but I
cannot agree with the impossible designation. I accept the
fact that in this case the operator was diligent, used all
reasonable means available to it to comply with the law, but
in spite of all of that employees did get out of line and did
not follow through and engaged in the acts that they weren't
supposed to for the purposes of safety.
So what is the answer to that? It would just be glib
of me [if] I sit here and say there is an answer; that you
can somehow penalize men. Maybe that's impossible, labor
relations being what they are. I don't know what the answer
to it is.
I simply could not subscribe, however, to the proposition that there is no answer, and my general conclusion wou1d
be that further efforts or other efforts could be employed to
prevent this sort of a violation.
My judgment, of course, is based upon the clear requirements of the law which place the responsibilities solely and
exclusively upon the operator. And if I did not so hold, I
would just be going contrary to the very settled law in this
area. So that would then be the reason for my finding of the
violation in this case as to this citation.
I will go through all of the criteria for this first
alleged violation and that won't be necessary ~ereafter.
As to the history of prior violations, based on the
stipulation, there were only two other prior citations. I
find there was no significant history of prior violations.
As to the appropriateness of the penalty to the size
of the operator, pursuant to the stipulation I find that
the penalties herein will be appropriate to the size of the
operator. I should make the finding that there were
20 employees working at the mine and that they worked some
19,000 man-hours.

I would conclude that this would be a small mine under
the circumstances and that the penalties, if any, that are
assessed herein will be appropriate to its size.
The effect on the operator's ability to continue in business. Pursuant to the stipulation, I find that the fines
which will be assessed will not affect the operator's ability
to continue in business.

2097

Good faith compliance. Again, based upon the stipulation, I find that the operator which abated all of the viola~
tions within the times established, demonstrated good faith
efforts to achieve rapid compliance.
Gravity. On this criterion, the only evidence that we
have is that by way of the inspector who testified that if
this hose breaks loose, it might whip around and injure
employees, and in this instance one employee might have been
subjected to the effects, could have resulted in bruises and
eye inJury. And also that employee could not have easily "
avoided the whipping hose. I appreciate the statement by
counsel for the operator that this maybe isn't all that
serious. However, that would not be evidence of record and
I could not rely on it. Accordingly, I find it to be a
moderately serious violation.
1he last and final criterion is negligence. I have
already indicated some of my thoughts on the negligence. I
think it is evident that the operator did have a program to
check these kinds of activities to make sure that this hose
was iocked. In this instance it appears that it might have
been the fault of an individual man, not inserting the key.
In the circumstances I would find slight negligence.
Accordingly, and in summation, I find that the operator
violated the regulations as charged and that an appropriate
penalty would be that which has been recommended by the
Secretary, which is $18. I hereby assess the penalty of
$18.
This. decision is her'eby affirmed.
Citation No. 350061
The decision made orally from the bench on this citation is contained
in the record at pages 88-89 and reads as follows:

ALJ: I will proceed now to make my decision from the
bench on this citation, which is 00350061, with the same
reservations that I mentioned for the prior citation [that
is, subject to reconsideration of the "commerce" issue].
In this case the inspector has alleged in his citation
that there was a violation of 30 CFR 57.6-5, which reads
"Area surrounding magazines and facilities for the storage
of blasting agents shall be kept clear of rubbish, brush,
dry grass, or trees (other than live trees ten or more feet
tall), for a distance not less than 25 feet in all direc~
tions, and other unnecessary combustible materials for a
distance of not less than 50 feet."

2098

The inspector indicated in his citation the condition or
practice to be that the area around the powder magazine had
an accumulation of rubbish, dry brush and other combustible
materials.
The only evidence we have in this citation is that
received through the inspector. That is, his testimony and
certain of the exhibits.
The inspector has testified that there was an accumulation of materials which included a fallen tree, grass, possibly some brush and bark. This material was close up and
even on top of the magazine.
There is also evidence that at this particular time it
was not dry but that it had rained a short time before.
In light of this evidence and there being nothing to the
contrary, I find that there has been a violation of the mandatory standard as alleged. My findings on the two criteria of
gravity and negligence are as follows: On gravity, I find
that while it may not have been extremely serious on this particular day because of the dampness, it was a situation in
which dry periods do occur and therefore it could have been
dangerous. I find therefore that this violation was moderately serious. On negligence, for the circumstances it
appears to me that this was a situation.which the operator
knew or should have known about. And I find that this was
ordinary negligence.
Accordingly, in summation, I find that the operator violated the regulation as charged and that an appropriate penalty is that proposed by the Secretary in this case, the sum
of.$10.
The above decision is hereby affirmed.
Citation No. 350062
The decision on this citation was rendered orally from the bench.
It will be found at pages 103-106 of the transcript and reads:

ALJ: The following is my decision with refersnce to
citation No. 00350062.
This decision is made with the same reservations as those
made previously.
The inspector alleged in this case a violation of 30 CFR
57.6-20(f) which requires that "Magazines shall be* * *
(f) Made of non-sparking material on the inside, including
floors."

2099

And the inspector alleged as the condition or practice
that the storage explosive magazine seen had exposed sparking material on the inside of the magazine.
The evidence received consists of the testimony and the
exhibits of both the inspector and of the operator,
Mr. Henderson. There is not much, if any, dispute about the
facts. The magazine had a door of an outside metal construction to which was nailed wooden planks. The nails came
through the backs on the inside and were bent over.
The inspector has testified that this was a sparking
material and could be the source of a spark or an explosion
of the dynamite stored in the magazine.
The inspector's statement which was filed indicates that
the possibility of the event occurring would be rare. So far
as the fact of violation is concerned, which has nothing to
do with the freque'ncy or the likelihood of the event, I do
find that the standard was violated as alleged.
I think, as I understand it at least, the defense is
mainly along the lines that there was such a small amount of
sparking material as to make it virtually impossible that a
spark would ever occur.
lliw, unfortunately, the standard does not specify the
amount of sparking material. That is, whether it could be
a small amount or a large amount.

1he inspector has given his view as to the possibilities
in which even what is obviously a relatively small amount of
sparking material could still be sufficient under some circumstances to cause a spark. The main point that I would have
to decide, then, was whether or not that was sufficent sparking material to come within the standard and, based on the
inspector's testimony, I find that it is.
My findings on the two statutory criteria of gravity
and negligence are as follows: * * * I do not find that
that would be serious. I would refer back to the inspector's view that the possibility of the event occurring would
be rare. I believe in light of that circumstance that I
would find it to be non-serious.
N:>w, that leaves negligence. In light of all the testimony including that of Mr. Henderson who held the view that
this wo.uld not cause a spark and that he never realized that
this would be required under the regulations, I find that
there was a small degree of negligence. The penalty proposed

2100

by the Secretary which is $10, I believe, already takes into
account the factors of non-seriousness and a small degree of
negligence, so I would find the same amount • • • I would
assess the same amount, that is, a penalty of $10.
In summation, if it is not clear, I find that the operator has violated this regulation as alleged and that appropriate penalty, taking into account all of the statutory criteria, would be the sum of $10.
Citation No.350063
A decision was rendered from the bench on this citation and will be
found at pages 136-138 of the transcript as follows:
ALJ: I will make my decision in the citation
No. 00350063. It will be made subject to the same reservations heretofore mentioned.
The inspector has charged a violation of 57.12-2 which
reads "Electric equipment and circuits shall be provided with
switches or other controls. Such switches or controls shall
be of approved design and construction and shall be properly
installed." The inspector found as the condition or practice
that the diesel electric power generator did not have a disconnect switch located at the generator set and that the
diesel electric generator was located within 150 feet of the
mine portal.
In this instance there is not a great deal, if any, dispute as to the basic situation. The diesel is located 150
feet or so from the mine portal. There is a line running
therefore from the diesel to the portal and as I understand
it, at least, there is no question that that line is not
protected. There is no dispute that if a line • • • or I
should say circuit or piece of equipment needs to be protected, that the type of switch required was appropriate.
This is more or less the classic situation in which the
inspector in his view and in his judgment, based upon his
experience and knowledge, [determined] that such line should
have been protected by a disconnect switch.
On the other hand, Mr. Henderson testified at least as
I understood it that the switch on this particular circuit
was not necessary.
My finding is that this did violate the regulation as
charged and I would give my reason as T view it. The mandatory standard does require that every circuit be provided

2101

with a switch. Now, this may not have been a highly vital or
important circuit. I really don't know that. But it was,
as I understand it, an unprotected circuit. This may be for
all I know an area in which we are talking about something
that becomes quite technical in electrical terms. That is
certainly possible. But at least strictly speaking, as I
understand it, the standard does require such a switch and I
therefore find the violation as alleged.
The gravity of that violation. As the inspector testified, in the case of a short there was a possibility of electrical shock. I find the violation to be moderately serious.
On negligence, this is a condition which the operator knew or
should have known about and I find it to be slightly negligent. Under all of the circumstances mentioned and because
of the disagreement about the strict need for the switch, I
find that only a nominal penalty should be assessed. The
Secretary has recommened $36, which under the circumstances
may be too large. In my view the penalty should be $18.
And in summation I find that the operator violated the
regulation charged and that an appropriate penalty, taking
into account all of the statutory criteria, is $18.
This decision is hereby affirmed.
Citation No. 350064
A decision was rendered orally from the bench as to this citation
and is found at pages 162-164 of the transcript as follows:
ALJ: The inspector in this instance charged a violation
of 30 CFR 57.9-110, which reads as follows: "Shelter holes
shall be provided to ensure the safety of men along haulageways where continuous clearance of at least 30 inches from
the farthest projection of moving equipment on at least one
side of the haulageway cannot be maintained."
In his citation the inspector charged the condition or
practice to be as follows, "Shelter holes were not provided
along the main haulageway to ensure the safety of men along
the haulageway. At least 30 inches of clearance must be
provided from the farthest projection of moving equipment on
at least one side of the haulageway."
On this alleged violation we have the testimony of the
inspector, Mr. Moore, and also of Mr. Henderson. Mr. Moore
has indicated that he did not actually make any of the
measurements but that it was his view that at times the clearance would be less than 30 inches because of his experience and
because of his estimate of the size of the entry.

2102

Mr. Henderson has testified on the other hand that the
entry would. be at least 108 inches and more, possibly another
foot, to make it 120 inches, and that based upon the manufacturer's design, the scoop is 61 inches wide, which would leave
in actuality a total of approximately 5 feet at the maximum.
In looking at the standard, I observe that it does state
that shelters are required where clearance of at least 30
inches on one side of the haulageway cannot be maintained.
Now, it would be apparent if the measurements mentioned
by Mr• Henderson are true, that certainly 30 inches could be
maintained. It is a question of whether they were. I believe
that the inspector's belief was that with the conditions of the
mine, the nature of the rubber tired vehicle and so forth,
that they were not being maintained. The testimony does indicate his view that this would be a safety measure regardless
of the regulation. I don't believe that I would be able nor
would I want to rule on whether it should be a safety measure
regardless of the regulation. My function would be to look at
the regulation and see if it comes within it.
My holding is that there is insufficient evidence here
to prove the violation. That is based mainly on the fact
that the inspector did not have accurate measurements. So it
does provide a certain amount of uncertainty. It is perhaps
likely that when you consider rubber tired vehicles going down
that entry, that maybe 30 inches was not maintained at all
times on one side, but the main point that I would rely on is
that we just simply don't know from the testimony that we
have.
So, accordingly, I would find in this citation that there
is no violation and that citation will be vacated. And hereby
it is vacated.
This decision is hereby affirmed and the petition as to this citation
is dismissed.
The assessments for the above citations are summarized as follows:
Assessments or
other disposition

Citation Nos.
350060
350061
350062
350063
350064
Total Assessment

$18.
10.

10.
18.
vacated
$56.

2103

ORDER
It is ordered that Respondent pay the penalty of $56 within 30 days
of the date of this decision.

,.
Ii !J .
.._;;.-~--l~O.~ /' ' /il~~

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·1 .

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:

14

,.

Franklin P. Michels
Administrative Law Judge
Distribution:
Donald F. Rector, Esq., Office of the Solicitor, u.s. Department
of Labor, 450 Golden Gate Ave., Rm. 10404, San Francisco, CA 94102
(Certified Mail)
Warde H. Erwin, Esq., Optographic Bldg., 3323 s. w. Harbor Dr.,
Portland, OR 97201 (Certified Mail)

2104

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceedings
Docket No. VINC 79-107-PM
A.c. No. 20-01047-05Q01

Petitioner
v.

Docket No. VINC 79-191-PM
A.C. No. 20-01047-05002

SUPERIOR SAND & GRAVEL, INC.,
Respondent

Superior Wash Plant
DECISION
Appearances:

Karl Overman, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
Norman McLean, Esq., Houghton, Michigan, for Respondent.

Before:

Administrative Law Judge Michels

These proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). The petitions
for assessment of civil penalty were filed in VINC 79-107-PM on January 4,
1979, and in VINC 79-191-PM on February 15, 1979. Timely answers and a
motion to consolidate the above proceedings were filed by the Respondent.
A hearing was held in Houghton, Michigan, on September 27, 1979, at which
both parties were represented by counsel.
VINC 79-107-PM concerns five alleged violations. VINC 79-191-PM concerns six alleged violations. Evidence was received as to each citation
except for two that were settled and decisions thereon were rendered from
the bench. These decisions as they appear in the record, with certain
necessary corrections or changes, are set forth below. In some instances
it has been necessary to slightly alter sentence structure for clarity.
Also certain deletions and additions have been made which are gen'erally
indicated by appropriate markings.
VINC 79-107-PM
Citation Nos. 286419, 286420, 286821, 286825, issued September 7, 1978
The following is the bench decision on t.he above citations found at
pages 94-103 of the transcript:
I am deciding the issue presented here in Docket
79-107-PM with respect to four berm citations
2105

numbered 286419; 286420; * * * 286821; and 286825. In each
of these citations the inspector alleged a substantially
similar practice or condition, except that each citation is
related to a particular part of the pit or mine. I will read
into the record only the allegation in the first citation
which is 286419. "A berm of mid.:..axle height of the largest
vehicle using the elevated roadway leading into the crusher
area was not provided along the right side for a distance of
approximately 100 feet marking this roadway. This roadway
was being used by heavy-duty mobile equipment." This concerns a violation in each instance of 30 CFR 59.9-22, which
states as follows: "Adequate berms or guards shall be provided on the outer banks of elevated roadways.'' ·Berms are
defined as follows:
"Berm means "a pile or mound of material
capable of restraining a vehicle." * * *
As to this fact of violation, it seems to me the evidence is reasonably clear that there were no berms as defined
by the regulation. A berm means a pile or mound of material
capable of restraining a vehicle. I believe it is quite clear
from the inspectorJs testimony, and I rely on that, that there
were some piles of dirt in at least three locations.
Other testimony indicates that due to apparent washouts,
the piles or mounds were not continuous. It seems to be quite
clear that that would create an opportunity for a vehicle to
leave that roadway and those mounds would fail to prevent it
from going over the side. I want to at this point make clear
that at present, I am only talking about the first three
citations. I am going to disregard for the moment, the last
citation which is 286825 because I believe it is in a slightly
different category.· Furthermore, as to those first three
citations it does appear that the berms, where they did exist,
were neither substantial enough nor high enough to prevent or
to deflect a vehicle of the size being used on the roadways.
That is not to say that the evidence as to washouts or
other problems is not relevant and important and would be
taken into account in an assessment of the penalties. However, as to the first three citations, based on the inspector's testimony, which I believed as far as the nature of the
berms or the nature of· the mounds was concerned, was not
seriously contested. I find a violation of 56.9-22.
As to the last citation which is 286825, the circumstance is slightly different. The evidence indicates the
road at the time was being widened and improved. There was a
berm on the road, but part of the berm had been removed in
the course of repairing or widening the road. The inspector's testimony is that he did not know and had no reason to
know that the road was being widened or improved. There is

2106

some conflict about what he knew and what he said, however, I
don't know that I have to consider that in making this decision. It seems to me on the basis of what we now know,
which is that the road was being repaired, that had the
inspector known this he might very well not have issued that
citation.
I am not finding fault with the inspector for issuing
[the citation], however, on the basis of this whole record,
we now know it was being repaired. It would be an unusually
harsh interpretation to require the road, under those circumstances, to have a berm of the size and type·set forth.
Accordingly, I find that the last berm citation, 286825, is
not a violation of the standard as charged. * * *

My findings on the statutory criteria are as follows:
The size of the company. The testimony was that there are
[approximately] five employees, and in my judgment I think
this is a small company. No evidence was presented as to
history of past violations. There is a substantial amount
of evidence, however, as to the company's safety record.
They have had a good safety record and appear to be safety
conscious. I will certainly take that into account. There
is no evidence that the peµalty to be assessed will restrict
the operator's ability to continue in business. There is
no evidence of any lack of good faith to achieve rapid compliance. So I assume that good faith compliance was
achieved.
I have taken into account all of the following various
circumstances: * * * Only one man principally used this
road or these roads. The road was generally or fairly wide
and there is a relatively small chance [of] an accident; yet,
if a truck did get into trouble or did go over these relatively high banks there could be a serious accident. So I
find [these violations were] moderately serious in the circumstances mentioned.
On negligence, the law requires proper berms. The evidence is clear that the company continued to operate without
full berms after some had been washed out. In the circumstances, I find some degree of negligence for the assessment
of these three citations.
The assessment officer has assessed various amounts, the
lowest being $20. I believe for the most part the assessment
officer has taken into account some of the [mitigating]
factors that were here mentioned. * * * [I assess] $20 for
each of the three violations for a total of $60. That will
complete my decision on the berms.
The above bench decision is AFFIRMED.

2107

Citation No. 286822, issued September 7, 1978
The following is the bench decision on the citation set forth at pages
128-131 of the transcript:
This is the last citation in this docket. It is 286822.
The inspector cited improper guarding for the drive coupling
on the portable generator plant. * * * He alleged this to be
a violation of.30 CFR 56.14-6. This standard reads as
follows: "Except when testing the machinery, guards shall be
securely in place while the machinery is being operated."
The first question is the fact of the violation. The
inspector testified and there seems to be no question at all
that the screen guard was in place, but not bolted. The issue
is whether it was securely in place. There is also testimony
that this screen is heavy, weighing something like 30 pounds.
It would not be easily moved. If [the screen] were pushed, it
would simply push into the coupling machinery. Based on all
of the evidence on the probability of an accident, the nature
of the conditions-which existed and so forth, it seems to me
that this would be no more than what might be described as a
technical violation, if it is a violation at all.
I don't know whether this particular law requires securing by bolting in every instance. In this case and under
these circumstances, and based on the testimony here I am
going to give the benefit of the doubt to the operator. [The
screen] was standing on legs which were stuck into the floor.
From the testimony * * * it seems to me almost impossible, if
not impossible, that that screen could be moved so that somebody could come in'and fall into the coupling. So, for the
purpose of this machine, it was securely in place. * * *
I find that there is no violation of [30 CFR 56.14-6] as
charged in Citation 286822. Accordingly, the citation * * *
is hereby vacated, and there will be no penalty assessed;
The above bench decision is AFFIRMED.
VINC 79-191-PM
Citation Nos. 286417 and 286418, issued September 7, 1978
The following is the bench decision on the above citations found at
pages 158-163 of the transcript:
This involves Citations 286417 and 286418. In 286417,
the inspector found as the condition or practice that an
automatic audible warning device was not provided on a
Michigan 175 front-end loader, serial 13AHG306. The loader
was used to feed the rock crusher in the pit. An observer to

2108

signal when it was safe to back up, was not present. In
286418, an audible automatic warning device was not provided
on the Koering dumpster, D5711. The dumpster was used to
haul material from the crusher loadout to a stockpile. An
observer to signal when it was safe to back up was not provided as set forth in 30 CFR 56.9-87. * * *
In both instances it is clear from the inspector's testimony, [upon which I rely] that there was no automatic
reverse warning device on the machines.*** "The mandatory
standard involved which is 56.9-87, [requires] that heavyduty mobile equipment shall be provided with audible automatic 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 audible above the
surrounding noise level of the machine or a signalman to
signal when it is safe to back up. In this instance, the
inspector testified, and there was no contrary testimony,
that the equipment was heavy-duty mobile equipment * * * and
that there were no audible warning devices. That testimony
is not contested. Accordingly, I find that in each of the
two instances, violations of 56.9-87 occurred.
It is unnecessary to make findings on the criteria as
to the history, size of the company, and ability to pay since
these have already been made in this record. It appeared to
me from the testimony that the company did use good faith
efforts to achieve rapid compliance. So as far as the gravity
is concerned, I think it is clear from the testimony and I
believe experience in this area bears this out, that the lack
of audible warning signals is a grave hazard. The mere fact
that men might not always be behind the machines is not really
too relevant because there is always that one rare instance
where somebody would be in back of the machine and become
gravely injured or die. I find that [these are] grave
violations.
Now, as the first citation, namely 286417, witnesses
for the Respondent testified that they had a [corrective]
device ordered and that when they received and placed it on
the machine, it failed to function properly. It was taken
off the machine with the object of returning it [to the
manufacturer]. I believe that this is a mitigating circumstance as far as the negligence is concerned. However,
* * * somebody could have. been injured when the device was
not on the machine and I find some negligence [in 286417.
In Citation 286418 I find ordinary negligence.]

2109

Taking into account the mitigating circumstances in 417,
I will reduce that penalty by one~half which will make it $28.
[In Citation 286418, I believe the proposed penalty is
appropriate and I hereby assess $56 for it].
My bench decision is hereby AFFIRMED.
Citation Nos. 286823 and 286824, issued September 7, 1978
The following is the bench decision on the above citations found at
pages 206-213 of the transcript:
This part of the decision deals with two citations,
numbers 286823 and 286824. The inspector charges the following: The stairway leading into the parts and lube van in the
pit was not provided with handrails in violation of 30 CFR
56.11-27. In 824, the inspector cited as a condition or
practice the following: elevated walkways on both sides of
the Cedar Rapids Wash Plant were not provided with handrails.
The walkways are approximately 10 feet above the ground level.
That is charged as~a violation of 30 CFR 56.11-27, a mandatory
standard which [requires that] adequate 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.
The first violation to [which] I address myself is 823.
The testimony demonstrates clearly that there was a stairway
and that it had no handrails. There is some evidence to the
effect that it is a. relatively short stairway and also that
it was not used except infrequently to obtain materials
within the van. Nevertheless, the inspector testified, and
there is no evidence to t4e contrary, that there was grease
on the stairway. It is the type of situation that could provide the background for an accident even though it is a
relatively small stairway. The men going in and out could
easily slip and fall and be seriously hurt. * * * [l/]
The next citation is 286824. * * * So far as the actual
standard is concerned,. it does, as I have interpreted it
here, require a handrail for obvious safety reasons, so I
therefore, find a violation ~n 286824.
1/ The Respondent argued at the hearing that in abating the violation it
installed two handrails and that as a result the door of the van could not
be opened without removing the rails. The inspector testified that one
handrail is sufficient (Tr. 176). This would permit the door to open.
Accordingly, I held that only one rail was needed on the lube van (Tr. 210).

2110

The violation in both cases, [concerns] standard
56.11-27. There being no evidence to the_ contrary, I find
abatement in good faith was rapidly achieved. The gravity, I
think, has already been referred to in part. There is a very
good likelihood of injury from men stepping off or accidentally falling off such a walkway· or stairway. Accordingly, I
find that it is a serious violation. Insofar as negligence is
concerned, the testimony demonstrates disgreement as to an
absolute need for such handrails in both of these instances.
The company honestly and in good faith apparently did not
believe they were needed. However, the standard does require
it and it is negligent not to comply with the standard. So I
find * * * a slight degree of ordinary negligence.
It seems to me as far as assessments are concerned, the
assessment officer's penalties took into account the factors
I have been talking about. These are not high penalties. In
the circumstances, I will assess those penalties * * *· For
286823 I assess the penalty of $36 and for 286824 I assess
the penalty of $34.
The above bench decision is hereby AFFIRMED.
Citation No. 286826, issued September 7, 1978
Citation No. 286826 alleges a violation of 30 CFR 56.14-1 which
requires that gears, sprockets, chains, drive, head, tail and takeup
pulleys; flywheels, couplings, shafts, sawblades, fan inlets; and similar
exposed moving machine parts which may be contacted by and cause injury to
persons be guarded. The parties have agreed to settle this citation because
there is a factual dispute as to whether the employees were actually exposed
to the hazard. The proposed assessment is $66. The settlement is $14.
Considering the circumstances, I approved this settlement and hereby
incorporate it as part of my decision.
Citation No. 286400, issued September 8, 1978
Citation No. 286400 alleges a violation of 30 CFR 56.5-20 which sets
forth permissible exposure to noise according to the American National
Standards Institute (ANSI). The parties have agreed to settle for the proposed amount, $26. I approved this settlement and hereby incorporate it as
part of my decision.
A summary of the dispositions in this case are as follows:
Citation

Action/Assessment

286419
286420
286821
286825
286822

$ 20
20
20
vacated
vacated

2111

286417
286418
286823
286824
286826
286400
Total

28
56
36
34
14
26
$254

ORDER
IT IS ORDERED that Respondent pay the penalties totaling $254 within
thirty (30) days of the date of this decision.
-·

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Franklin P. Michels
Administrative Law Judge
Distribution:
Karl Overman, Esq., Office of the Solicitor, U. S. Department of
Labor, 231 W. Lafayette St., 657 Federal Building and U. S. Courthouse, Detroit, MI 48226 (Certified Mail)
Norman McLean, Esq., McLean & McCarthy, P.O. Box 65, Houghton, MI
49931 (Certified Mail)

2112

FEDERAL MIN~ SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR .
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

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

Docket No, DENV 78-578-PM
A/O No, 04-01036-05001
Red Lava Pit & Mill

RED LAVA PRODUCTS OF CALIFORNIA,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
The Solicitor has filed a motion to approve settlements in the
above-captioned procee4ing.
This case involves four citations. The citation numbers, the
mandatory standards, the original assessments, and the proposed penalties
are set forth below.
Citation No.

00374661
00374663
00374664
00374665

Date

5-31-78
5-31-78
5-31-78
5-31-78

Health or Safety
Standard Violated
(CFR Title 30)

Proposed
Penalty

Proposed
Amended
Penalty

55.9-54
55.12-13
55.9-22
55.9-22

$60.00
84.00
28.00
44.00

$51.00
62.00
24.00
39.00

The Solicitor advises in her motion that further investigation leads her
to believe that negligence is less than was originally assessed.
In addition, the Solicitor advises that there is no prior history of
violations and that these violations were abated in good faith.
The Solicitor's motion is deficient because it discusses all the
violations as a group. Each alleged violation should be discussed
individually and the reason for each proposed settlement should be
discussed item by item. Nevertheless, in this case, since the proposed
reductions are not large I have reviewed the citations, the assessment
sheet and the attached inspector's statements.
I particularly note
that the operator has no history of prior violations. Based upon my
review of pertinent materials I conclude that the recommended settle. ments are consistent with and will effectuate the purposes of the Act,
However, the Solicitor should not submit a motion such as this in the
future because I will not approve it.

2113

ORDER
In light of the foregoing the recommended settlements are approved
and the operator is ORDERED to pay $176 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Admiriistrative Law Judge
Distribution:
Judith G. Vogel, Esq., Office of the Solicitor, U.S. Department of
Labor, 10404 Federal Bldg. , .450 Golden Gate Avenue, Box 36017,
San Francisco, CA 94102 (Certified Mail)
William L. Feeney, Esq., Windrem, Feeney, Wood and Williams, 301 North
Forbes Street, Lakeport, CA 95453 (Certified Mail)

2114

-·-·,:

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CJ&-

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

December 26, 1979

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

Civil Penalty Proceeding
Docket No. VINC 79-154-PM
A.c. No. 20-00044-05001

Petitioner
v.

Alpena Stone Quarry and Mill
CEMENT DIVISION, NATIONAL GYPSlil1
COMPANY,
Respondent
DECISION
Appearances:

William B. Moran, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Petitioner;
Timothy A. Fusco, Esq., Dykema, Gossett, Spencer, Goodnow
& Trigg, Troy, Michigan, for Respondent.

Before:

Chief Administrative Law Judge Broderick

Statement of the Case
'Ille proceeding arose upon the filing of a petition for the assessment
of civil penalty (now called a proposal for a penalty, 29 CFR 2700.27) for
11 alleged violations of mandadato~y safety standards contained in 30 CFR
Part 56. The violations were charged in citations issued to Respondent
following an inspection of the Alpena Stone Quarry and Mill between
April 25 and May 9, 1978.
Pursuant to notice, a hearing on the merits was held in Bay City,
Michigan, on August 9 and 10, 1979. Federal mine inspectors Robert Wallace,
Richard Keith, Alex Harju, Frank Gerovac, and Royal Williams testified on
behalf of Petitioner. Dennis Charles Lane and Bruce Wagner testified on
behalf of Respondent. Both parties have filed posthearing briefs. To the
extent the contentions therein contained are not incorporated into this
decision, they are rejected.
Statutory Provisions
Section 104 of the Federal Mine Safety and Health Act of 1977 provides
in part:

2115

(a) If, upon inspection or investigation, the Secretary
or his authorized representative believes that an operator of
a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule, order,
or regulation promulgated pursuant to this Act, he shall,
with reasonable promptness, issue a citation to the operator.
F.ach citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation,
or order alleged to have been violated. In addition, the
citation shall fix a reasonable time for the abatement of the
violation. The requirement for the issuance of a citation
with reasonable promptness shall not be a jurisdictional
prerequisite to the enforcement of any provision of this
Act.

*

*

*

*

*

*

*

(d)(l) 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.

*

*

*

*

*

*

*

(e)(l) If an operator has a pattern of violations of
mandatory health or safety standards in the coal or other
mine which are of such nature as could have significantly
and substantially contributed to the cause and effect of
coal or other mine health or safety hazards, he shall be
given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such
notice, an authorized representative of the Secretary finds
any violation of a mandatory health or safety standard
which could significantly and substantially contribute to
·the cause and effect of a coal or other mine safety or
health hazard, the authorized representative shall 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.

2116.

Section 110 of the Act provides in part:
(a) 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.

*

*

*

*

*

*

*

(i) The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the operator's history of previous violations, the appropriateness
of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation.
Regulatory Provisions
30 CFR, Part 56 provides in part:
56.4-9 Mandatory. All heat sources, including lighting
equipment, capable of producing combustion shall be insulated
or isolated from combustible materials.

*

*

*

*

*

*

56.4-33 Mandatory. Valves on oxygen and acetylene tanks
shall be kept closed when the contents are not being used.

*

*

*

*

*

*

*

56.9-87 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 autonatic reverse signal
alarm which is audible above the surrounding noise level
or an observer to signal when it is safe to back up.

*

*

*

*

*

*

*

56.11-1 Mandatory. Safe means of access shall be provided and maintained to all working places.

*

*

*

*

*

2117

*

*

56.12-8 Mandatory. Power wires and cables ·shall be
insulated adequately where they pass into or out of electrical c·ompartments. Cables shall enter metal frames of
motors, splice boxes, and electrical compartments only
through proper fittings. When insulated wires, other than
cables, pass through metal frames, the holes shall be
substantially bushed with insulated bushings.

*

*

*

*

*

*

*

56.12-32 Mandatory. Inspection and cover plates on
electrical equipment and junction boxes shall be kept in
place at all times except during testing or repairs.

*

*

*

*

*

*

*

56.12-34 Mandatory. Portable extension lights, and
other lights that by their location present a shock or
burn hazard, shall be guarded.
Issues
1. Whether the violations described in the citations occurred or
existed as alleged?
2. In each instance where a violation is found, what is th_e appropriate penalty for each violation?
3. In each instance where a violation is found, was the additional
finding that it could have significantly and substantially contributed to
the cause and effect of mine health or safety hazards properly made?
Findings of Fact and Conclusions of Law
Penalty Proceedings Before the Review Commission
A civil penalty proceeding before the Commission is in no sense a
review of the actions or determinations of the MSHA inspectors or Assessment Office. It is in fact a de novo proceeding in which the Secretary
seeks to have the Commission impo-;;-c-ivil penalties for what
contends
were violations of mandatory safety standards contained in the Act or in
regulations promulgated pursuant to the Act. The Commission must determine on the basis of the evidence presented at a hearing before an
Administrative Law Judge, whether the alleged violations occurred. For
those found, the Judge will impose a penalty based on the six criteria
in llO(i) of the Act. The burden of proof is on the Secretary to establish the existence or occurrence of the violations and, to the extent
that he urges that any of the statutory criteria should increase the
penalty, he has the burden of establishing the existence of the
aggravating factor. The important factors concerning which the parties
to these proceedings disagree are gravity and neglige~ce.

ne

2118

The gravity of a violation depends upon the possible hazard to miners
and the likelihood that the hazard will result in injury. Robert G. Lawson
Coal Company, 1 IBMA 115. A violation is the result of the operator's
negligence if he knew or should have known of the condition and failed to
take corrective action. The knowledge of a for~man may be imputed to the
operator. The Valley Camp Coal Company, 3 IBMA 463.
Significant and Substantial
Fach of the citations involved in this proceeding contain a finding
that the condition is "significant and substantial." This phrase I take
to be shorthand for a finding that the "violation is of such nature as
could significantly and substantially contribute to the cause and effect
of a * * * mine safety or health hazard." Section 104(d)(l). In its
answer, Respondent challenged these findings. At the hearing, the parties stipulated that the propriety of these findings is properly an issue
in the present civil penalty proceeding. In its posthearing brief,
Respondent argues that such findings are not proper in a citation issued
under section 104(a) and therefore should be vacated. It cites the decision of Judge Koutras in Secretary v.·Lone Star Industries, Docket No.
VINC 79-21-PM, issued July 3, 1979, as standing for the proposition that
such findings are only properly made in a 104(d)(l) citation for unwarrantable failure to comply with a standard.
Petitioner moved "to strike" Respondent's argument because it was not
raised prior to the filing of its posthearing brief. The motion is DENIED
and the request for additional time to respond is DENIED.
Respondent's position overlooks, however, the fact that under section 104(e), sanctions may be applied for a pattern of violations which
are of such nature as could have significantly and substantially contributed to the cause and effect of·a mine health or safety hazard.
There is no requirement in section 104(e) that the violations be caused
by unwarrantable failure. I conclude that findings in a 104(a) citation that the violation is significant and substantial are not improper
provided the findings are supported by the facts.
In a decision under the Coal Mine Safety Act,· the Board of Mine Operations Appeals interpreted the phrase "significantly and substantially
contribute to the cause and effect of a mine safety or health hazard" to
include all violations except "violations posing no risk of injury at all,
that is to say, purely technical violations, and violations posing a source
of any injury which has only a remote or speculative chance of coming to
fruition." Alabama By-Products Corporation (On Reconsideration), 7 IBMA
85, 94. This tortured construction of language was said by the Board to
have been compelled by the decision of the Court of Appeals in International Union, United Mine Workers of America v. Kleppe, 532 F.2d 1403
(D.C. Cir. 1976), cert. den., 429 U.S. 858 (1976). In fact, the court's
opinion did not construe the language in question at all, but merely held
that the Board had mistakenly read in a significant and substantial

2119

requirement for a section 104(c)(l) withdrawal order when no such
requirement was contained in the statute. 30 u.s.c. § 814(c)(l).
When it was issued, I thought the Board's interpretation was
wrong and I think it wrong today. However, the Senate Committee on
Human Resources in its Report on f, 717, which became the Federal Mine
Safety and Health Act of 1977, stated:
'Ihe Committee notes with approval that the Board of Mine
Operations Appeals has reinterpreted the "significant and substantial" language in Alabama By-Products Corp., 7 IBMA 85,
and ruled that only notices for purely technical violations
could not be issued under Sec. 104(c) (1).

s. Rep. No. 95-181, 95th Cong., 1st Sess. 31 (1977), reprinted in U.S.
Senate, Committee on Htmlan Resources, Subcommittee on Labor, Legislative
History of the Federal Mine Safety and Health Act of 1977, 95th Cong.,
2d Sess. at 619 (1978).
·
'Iherefore, although I would not so interpret the language if it were
a matter of first impression, I feel constrained to follow the Board's
construction, and conclude that only purely technical violations, and
violations which have only a remote or speculative chance of causing any
injury, cannot be cited as significant and substantial.
The Violations
(1) Citation No. 288294 charged a violation of 30 CFR 56.9-87
which requires that heavy duty mobile equipment be provided with audible
warning devices. When the operator of such equipment has an obstructed
view of the rear, the standard requires that the equipment 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. Respondent had a 120 Hough bulldozer which had an inoperative reverse alarm at
the time of inspection. The bulldozer is a large vehicle with an
obstructed view. No observer was present. The inspector testified that
an individual in the vicinity of the bulldozer could be hurt if that person did not hear the alarm. I find that a violation was established and
that it is moderately serious; however, there is no evidence of negligence. Because the violation could result in injury, I find that it was
significant and substantial.
(2) Citation No. 288295 alleged a violation of 30 CFR 56.4-9 which
requires that all heat sources, including lighting equipment capable of
producing combustion, be insulated or isolated from combustible materials.
The inspector testified that a foreign substance, possibly oil or grease,
contacted the insulation around the number one cyclone duct, causing the
insulation to smolder. The inspector stated that the fire was extinguished
and the machinery was repaired to prevent any further overheating. The
duct was located approximately 4-6 inches from the travel pattern of the

2120

walkway. The duct was a source of heat and it was not sufficiently separated from combustible materials, namely, oil or grease. A violation was
established which was moderately serious. No evidence was presented to
show how or when the oil or grease came to be on the duct and therefore
negligence was not established. Since the violation could have resulted
in injury, I find that it was significant and substantial.
'
(3) Citatio.n No. 288296 alleged a violation of 30 CFR 56.12-32
which requires that inspection and cover plates on electrical equipment
and junction boxes be kept in place at all times except during testing
or repairing. The inspector testified that the paddle switch junction
box at the No. 14 conveyor was not provided with a cover. Due to the
location of the box, near an elevated walkway, a person who contacted
the wires in the box could get a shock and fall 30 to 40 feet. A v~o
lation was established and it was serious. The evidence establishes
that the condition had existed for some time and should have been known
to Respondent. Respondent was negligent. Since an injury could have
occurred, the violation was significant and substantial.
(4) Citation No. 288297 alleges a violation of 30 CFR 56.11-1
which requires that safe means of access be provided and maintained to
all working places. I find that spillage up to 24 inches existed on
the walkway around the head pulley of the #14 conveyor. This spillage
created a tripping hazard. The inspector testified that an employee
could fall 30 to 40 feet from the walkway to the ground below. The
inspector also stated that the spillage was impacted, indicating that
it had been present for some period of time. I find that a violation
existed. It was moderately serious and was caused by Respondent's
negligence. I further find that this violation was significant and
substantial.
(5) Citation No. 288298 alleges a violation of 30 CFR 56.12-34
which requires that portable extension lights and other lights that ·by
their location present a shock or burn hazard be guarded. A 200-Watt
bulb at the No. 3 high line conveyor was not provided with a guard. The
light could have been broken and caused injury to an employee. A violation of the standard was established. The Respondent abated.the violation by placing a guard on the bulb. I find that the violation was
caused by Respondent's negligence since the condition was obvious to
visual observation. However, the evidence does not establish that it
was a serious violation. I· find that because the violation could
contribute to a health or safety hazard, it was significant and
substantial.
(6) Citation No. 288721 charges a violation of 30 CFR 56.12-8
which requires that power wires and cables be insulated adequately when
they pass into or out of electrical compartments. When insulated wires
pass through metal frames, the regulation requires that the holes be
substantially bushed with insulated bushings. The electrical power
wires entering the switch box at the impactor floor hydraulic cylinder

2121

did not have a bushing. The inspector stated that the wires could rub
against the bare metal and cause an electrical short. He also stated
that the weight of the cable could pull the wire free, also causing a
short. There is both a burn hazard and a shock hazard. The Government
conceded that the violation was not significant and substantial. I find_
that a violation was established. The violation was not serious. The condition was apparent, should have been known to Respondent and therefore
was caused by its negligence. The violation was not significant and
substantial.
(7) Citation No. 288722 alleges a violation of 30 CFR 56.11-1
which requires that a safe means of access be provided and maintained
to all working places. The evidence established that there was excessive buildup of limestone dust at the top raw grind silo between th~ 29
and 33 conveyor belts. The evidence further shows, however, that the
area in question is not used by workmen, nor is it a means of access to
any working place.
'Iherefore, I find that the Government has failed to sustain its
burden of proof and that no violation has been established.
(8) Citation No. 288827 alleges a violation of 30 CFR 56.4-33
which requires that valves on .oxygen and acetylene tanks be kept closed
when the contents are not being used. The oxygen and acetylene cylinders
in the #2 storeroom were in an open position at the time of inspection.
There were ignition sources close by and there was a possibility of
explosion. A violation was established and was moderately serious. The
condition was known or should have been known to Respondent. Therefore,
it was caused by Respondent's negligence. Because the violation could
have resulted in injury, it was significant and substantial.
(9) Citation No. 288826 charges a violation of 30 CFR 56.12-34
which requires that portable extension lights and other lights that by
their location present a shock or burn hazard be guarded. There was an
unguarded light bulb in Respondent's carpenter's shop. This is a violation of the standard. Since the condition was obvious, it was due to
Respondent's negligence. It was not serious. However, it could have
resulted in injury and therefore was significant and substantial.
(10) Citation No. 288566 was issued for an alleged violation of
30 CFR 56.11-1 which requires that a safe means of access be provided and
maintained to all working places. An accumulation of limestone was present
along the walkway to the tail pulley of the #41 conveyor belt. The accumulation was up to 2 feet deep and covered an area 30 feet long. I find
that a violation was established which was moderately serious. Because the
condition was evident, I find that Respondent was negligent. I also find
that the violation was significant and substantial.
(11) Citation No. 288567 alleges a violation of 30 CFR 56.11-1,
which is set forth in t~e preceding paragraph. A hole measuring 6 inches

2122

by 8 inches was present at the low end of the #16 walkway. The condition
w:is apparent and obvious to the Respondent. The violation was due to
Respondent's negligence and was moderately serious. I further find that
the violation was significant and substantial.
Conclusions of Law
1. The undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
2. At all times relevant to this proceeding, Respondent was subject
to the provisions of the Federal Mine Safety and Health Act of 1977.
3. Except as otherwise found herein, Respondent violated the mandatory health and safety standards as charged in the notices of violation.
4. The penalties hereafter assessed are based on my findings that
the violations occurred, and on a consideration of the following criteria
with respect to each violation: The operator's history of previous violations, the appropriateness of the penalty to the size of the business
of the operator, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violations
and the demonstrated good faith of the operator in attempting to achieve
rapid compliance.
ORDER
Based on the foregoing findings of fact and conclusions of law, Respondent is assessed the following penalties:
Citation No.

Date

30 CFR Standard

Penalty

288294
288295
288296
288297
288298
288721
288722
288827
288826
288566
288567

04/18/78
04/25/78
04/25/78
04/25/78
04/25/78
04/25/78
04/27 /78
05/09/78
05/09/78
05/02/78
05/04/78

56.9-87
56.4-9
56.12-32
56.11-1
56.12-34
56.12-8
56.11-1
56.4-33
56.12-34
56.11-1
56.11-1

150
75
150
250
50
50
0
150
50
150
150
$1,225
$

Total

Respondent is ORDERED to pay penalties in the total amount of $1,225
within 30 days of the date of this decision.

)~:!!!~~

Chief Administrative Law Judge

2123

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

-

.~

Civil Penalty Proceeding

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

Docket No. PITT 79-132-P
A/O No. 36-00963-03002
Mathies Mine

MATHIES COAL CO.,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER OF VACATION
ORDER TO PAY
The Solicitor has filed a motion to approve settlements for five
citations and to approve the vacation of one citation in the abovecaptioned proceeding.
Citation No. 233436 was issued for an alleged violation of 30 CFR
75.1720(a). According to the Solicitor this citation was issued when an
inspector observed a miner driving an electric motor car without adequate eye protection. The Solicitor further states that discussions
with the operator indicate that the miner had been provided with the
required safety glasses and had them in his pocket at the time the
citation was issued. The Solicitor states that since this violation was
due primarily to the employee's negligence rather than a lack of diligence on the part of the operator no penalty should be assessed. The
Solicitor is correct that the citation should be vacated but he gives
the wrong reason. The former Board of Mine Operations Appeals held that
where a miner intentionally failed to wear goggles the operator is not
guilty of a violation where it has diligently enforced the requirements
of the regulation. North American Coal Corp., 3 IBMA 93 at 106-108
(April 17, 1974). This appears to be the case here. Accordingly, there
is no violation. See also the recent decision of Administrative Law
Judge Koutras in Peabody Coal Company, DENV 77-77-P (August 30, 1978).
Lack of negligence is not, and never has been, a basis for va~ating a
citation.
The Solicitor recommends a settlement of $150, the originally
assessed amount, for Citation 233435 which was for a failure to provide
adequate separation between explosives and detonators, a violation of
30 CFR 75.1306. This settlerr:.ent appears reasonable and is approved.
Settlements are recommended for the remaining four citations in
amounts only slightly less than the originally assessed amounts. The
2124

settlements appear reasonable in light of the gravity of the conditions
presented. However, the Solicitor is advised that the fact that the
operator abated the violations immediately is not a ground for reduction
of the original assessment. Presumably the Assessment Office took into
account rapid abatement in determining the original assessments. The
Solicitor should not use this reason again as a basis for recommending
any reduction. If he does so in the future in any case of mine, the
settlement will be disapproved.
ORDER
The operator is ORDERED to pay $995 within 30 days from the date of
this decision. Citation No. 233436 is VACATED.

c

\

\
Administrative Law Judge

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

2125

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

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

Civil Penalty Proceeding
Docket No. DENV 79-189-P
A.O. No. 34-00676-03001

v.
McCurtain No. 2 Mine
GREAT NATIONAL CORPORATION,
Respondent
DECISION
Appearances:

David S. Jones, U.S. Department of Labor, Office
of the Solicitor, Dallas, Texas, for Petitioner;
Jerry D. Pruitt, Fort Smith, Arkansas, for Respondent.

Before:

Judge Stewart
PROCEDURAL BACKGROUND

The above-captioned case is a civil penalty proceeding
brought pursuant to section 110 of the Federal Mine Safety and
Health Act of 1977 (hereinafter, the Act), 30 U.S.C. § 820(a)
(1978). Petitioner filed a petition for assessment of civil
penalties for the three violations included under this docket
number on January 9, 1979. Respondent answered this petition
on February 5, 1979.
The hearing in this matter was held on September 19, 1979,
in Fort Smith, Arkansas. Petitioner and Respondent each
called a single _witness. Petitioner introduced five exhibits.
At the conclusion of the hearing the parties waived their right
to file proposed findings of fact and conclusions of law.
Findings of Fact and Conclusions of Law
The violations alleged herein were observed by Inspector
Farrin E. Walker during the course of inspections of Respondent's
McCurtain No. 2 Mine. These inspections were conducted in June of
1978. In each instance, the inspector issued a section 104(a)
citation.

2126

At the hearing, the parties stipulated that Respondent's
McCurtain No. 2 Mine was a small mine. Thirty-three employees
work at the mine, producing approximately 250 tons of coal per day
and 80,000 to 90,000 tons per year.
There is nothing o,n the record which would indicate that any
penalty assessed herein would have an adverse effect on Respondent's
ability to remain in business. MSHA's proposed assessment form
indicates that Applicant had no relevant history of prior assessed
violations.
Citation No. 00391338
The inspector issued Citation No. 00391338 on June 1, 1978,
citing a violation of 30 CFR 77.1605(a). He described the relevant condition or practice as follows: "The left cab window in
the Trojan Front-end loader, Model 254 (Company No. 22), was
broken and shattered. The loader was in operation at the loading
tipple." The window was replaced within the time set for abatement by the inspector. The inspector testified that the operator
took immediate action, thereby demonstrating good faith.
Section 77.1605(a) requires that cab windows shall be in good
condition and shall be kept clean. Both Inspector Walker and Jim
Beam, manager of the McCurtain No. 2 Mine, testified that the left
cab window of the front-end loader had been broken. The inspector
added that dust had gathered on the window. This uncontradicted
testimony-- that the windshield was broken and dirty-- established
that a violation of section 77.1605(a) existed as alleged.
The operator was negligent in that this condition was readily
observable, yet no corrective action was taken prior to the issuance
of the citation.
It was improbable that this condition would result either in
accident or injury. Although he testified that 90 percent of
the windshield had shattered, the inspector admitted that. a collision was unlikely. The front-end loader transported waste material
between the tipple and a dump, a distance of approximately 100 feet.
I t operated 5 days per month, making four or five trips per day.
It was unlikely .that another vehicle would be operating at the same
time in this area. The inspector observed coal haulage trucks at
the tipple but noted that they did not cross the front-end loader's
path. The inspector also admitted that injury would be improbable
even if an accident were to occur.
Citation No. 00391340
Inspector Walker issued Citation No. 00391340 on June 13, 1978,
again citing a violation of 30 CFR 77.1605(a). He described the

2127

relevant condition or practice as follwos: "The No. 12 servicetruck front -cab -window was broken and shattered. The truck is
used to service the equipment in the pit areas." The operator
abated the condition within the time set by the inspector for
abatement, thereby demonstrating a normal degree of good faith.
As noted above, section 77.1605(a) requires that cab windows
shall be in good condition. Both Inspector .Walker and Mr. Beam
testified that the window directly in front of the driver's seat,
was broken. This condition was in violation of section 77.1605(a).
The operator was negligent in its violation of the mandatory
standard. The condition was readily observable, yet the operator
did not take steps to replace the window prior to the issuance of
the citation.
I t was improbable that the condition would lead to an accid.ent
or injury. The cracks in the windshield were on the driver's side
of the vehicle. The inspector testified only that the vision of the
driver would be obstructed. Mr. Beam testified, on the other hand,
that the window had six to eight cracks in it, and that the vision
of the driver was unobstructed. It is found that the cracks in the
windshield slightly interferred with the driver's vision. Because
the vehicle was used primarily between the hours of 4 p.m. and midnight, the likelihood that an accident would occur was further
reduced. Other vehicles were not operated on a regular basis when
the service truck was in use. The inspector testified that he
observed the vehicle in operation between the shop and pit during
regular working hours. Mr. Beam testified that it only did so when
emergency repairs were necessary. The inspector testified that the
vehicle traveled very slowly. Therefore, even if an accident were
to occur, the injury expected to result, if any, would be
nondisabling.

Citation No. 391341
The inspector issued Citation No. 391341, on June 14, 1978,
citing a violation of 30 CFR 77.400(a). He described the relevant
condition or practice as follows: "The drag drum mechanism on the
2400 Lima Drag line operating at the Pit No. 002 was not provided
with a guard to prevent contact of the exposed moving machine-parts
which may cause injury to persons." The condition was corrected
within the time set by the inspector for abatement, thereby demonstrating a normal degree of good faith.
Section 77.400(a) requires that moving machine parts which
may be contacted by persons and which may cause injury to persons
shall be protected. In this instance, the upper half of a drag
drum was unprotected. This drum was located within the outer body

2128

of the dragline. The inspector testified that a person on the walkway
inside the body of the dragline would be standing within 4 inches of
the drum. This testimony was contradicted by that of Mr. Beam who
stated that a person would be approximately 30 inches away from the
drum. Despite this inconsistency, the testimony of both witnesses
established that a person could make injurious contact with the moving
drum. The condition was, therefore, in violation of the mandatory
standard.
The operator was negligent in its failure to guard the drum.
The condition was readily observable, but steps were not taken to
guard the drum until after the issuance of the citation.
It was probable that this condition would lead to an accident.
The inspector observed one of Respondent's employees--presumably the
oiler--inside the dragline. Mr. Beam testffied that the oiler who
was normally on duty inside the machine while it was in operation had
been instructed to use the outside walkwaf to get from·one part of the
machine to the next. I t was not established that he complied with
these instructions, and there was nothing to prevent him from using
the inside walkway for this purpose. It was not established that this
oiler did not pass on the walkway, alongside the drum, in the course
of his duties. If an accident were to occur, permanently disabling
injury would be expected to result.
ASSESSMENTS
In consideration of the findings of fact and conclusions of law
in this decision, based on evidence of record, the following assessments are appropriate under the criteria of section llO(i) of the
Act:
Citation No.

Penalty

00391338
00391340
00391341

$ 50

50
150
ORDER

The Respondent is ORDERED to pay the amount of $250 within
30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge

2129

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

Civil Penalty Proceeding

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

Docket No. YORK 79-58-M
A/O No. 30-00989-05002

Petitioner

v.
Nedrow Plant

W. F. SAUNDERS & SONS,
Respondent
DECISION
Appearances :

Jonathan Kay, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
Sherman v. Saunders, Jr., Nedrow, New York, for Respondent•

Before:

Administrative Law Judge Melick

This case is before me upon a petition for assessment of civil penalty under section llO(a) of the Federal Mine Safety and Health Act of
1977 ( 30 u. s.c. § 801 et ~·, hereinafter referred to as the "Act~'). On
August 20, 1979, Petitioner filed a proposal for assessment of civil penalty, for an alleged violation on March 21, 1979, of mandatory safety
standard 30 CFR 56.2-3(a), charging that Respondent's shop and adjacent
storeroom were in a cluttered condition. In its notice of contest filed
August 31, 1979, Respondent challenged the jurisdiction of Petitioner to
inspect and to cite violations in this shop and storeroom. A hearing was
held in Syracuse, New York, on November 21, 1979, at which the parties
appeared and presented evidence.
The issues in this case are (1) whether Petitioner, the Mine Safety and
Health Administration (MSHA), has jurisdiction under the Act to inspect and
to cite violations in Respondent's truck shop and storeroom, and, if so, (2)
whether Respondent has violated the provisions of the Act and implementing
regulations as alleged in the petition for assessment of civil penalty filed
herein, and, if so, (3) the appropriate civil penalty to be assessed for the
alleged violation. Respondent concedes in this case that if MSHA had jurisdiction over his truck shop and storeroom then he was admittedly in violation of the cited standard.

2130

r.

Jurisdiction

The essential facts are not in dispute. Respondent operates a sand and
gravel pit in Nedrow, New York, and, a few miles away, operates a preparation plant for the crushing, cleaning and sorting of the sand and gravel,
a concrete plant where the sand is mixed with cement and the truck shop and
storeroom at issue. The storeroom, about 30 feet wide and 100 feet long,
is used primarily to store new replacement parts for the operator's trucks
and conveyor systems. James Woods, plant superintendent, conceded that the
truck parts stored therein could be, and were in fact, used for the belly
dump trucks, the trucks used to haul sand and gravel from the pit area to
the preparation plant. Woods also conceded that the rollers and electric
motors stored therein could be, and were in fact, used on the conveyor
system in the sand and gravel pr.eparation plant. Woods did not deny that
certain screens described by the inspector were in the storeroom at the time
of the cited violation and admitted that such screens could only have been
used in the sand and gravel preparation plant. Woods emphasized, however,
that most of the parts in this storeroom were used in connection with the
cement plant and for the "10 wheeler" trucks, not used in the pit operation.
The parties have stipulated that Respondent's operations affect interstate commerce and there is no disagreement that sand and gravel are
"minerals" for purposes of the Act. MSHA's jurisdiction over the storeroom
in question thus depends on whether that area comes within the definition
of "mine" as set forth in the Act. Section 3(h)(l) of the Act, as relevant
herein, provides as follows:
"Coal or other mine" means (A) an area of land from
which minerals are extracted in non-liquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads pertinent to such area; and (C) lands,
excavations * * * and workings, structures, facilities,
equipment, machines, tools, or other property* * * on the
surface or underground, used in, or to be used in, or resulting from~ the work of extracting such minerals from their
natural deposits.in non-liquid form*** or used in, or to
be used in, the milling of such minerals, or the work of
preparing coal or other minerals * * *·
Commenting on this definition, the Senate Human Resources Committee in
the report on Senate Bill 717, which was the basis for the 1977 Act, stated
that:
[I]t is the Committee's intention that what is considered to
be a mine and to be regulated under this Act be given the
. broadest possibly [sic] interpretation, and it is the intent

2131

of this Committee that doubts be resolved in favor of
inclusion· of a facility within the coverage of the Act. [_!/]
In this regard a preparation plant for the processing of sand and gravel has
been found to be within the jurisdiction of the Act as a mineral preparation
facility. Cf. Secretary of Labor v. Stoudt's Ferry Preparation Company,
602 F.2d 58-g-(1979).

In the case at bar, it is undisputed that at least some of the equipment and machinery kept in the storeroom was to be used in the belly trucks
used to haul sand and gravel from the pit area, where it was extracted, to
the preparation plant and that at least some of the rollers kept in the
storeroom were to be used in the sand and gravel preparation plant. There
can no question then that this equipment and machinery was to be used in
the work of extracting sand and gravel from their natural deposits and to
be used in the work of milling or preparing the sand and gravel in the
preparation plant. I have no difficulty in finding therefore, that the
"structure" and "facility" at issue herein, the storeroom in which such
equipment and machinery was kept, similarly was "used in" and "resulted
from" the work of extracting the sand and gravel from its natural deposits,
and in the work of milling or preparing the sand and gravel in the preparation plant. It is immaterial that some of the equipment and machinery, or·
even most of it, may have been used in areas that may not have been under
MSHA's jurisdiction. It is of course also immaterial for purposes of this
decision that an MSHA inspector may have expressed an opinion that the subject storeroom was not within MSHA's jurisdiction. Under all the circumstances, I find that the storeroom in question is subject to MSHA's
jurisdiction under the Act.
II.

The Alleged Violation and Penalty

The citation at bar charged a violation of 30 CFR 56.2-3(a) which
requires that work places, passageways, storerooms, and surface rooms be
kept clean and orderly. Specifically, the uncontradicted evidence shows
that when the citation was issued the storeroom was cluttered, with sundry
equipment and machine parts strewn about the floor. The passageway was
obstructed and a tripping hazard existed. MSHA inspector Robert
Kinterknecht had previously warned Superintendent Woods of cluttered conditions in the storeroom and had asked him to clean it up. Woods admitted
that he was aware of t:he problem but claimed that the person in charge of
area maintenance had been absent from work. The inspector thought it probable that a man could trip over the objects on the floor, but that the
potential injuries would not be serious or fatal, resulting in only 1 or
2 days of lost work. The evidence shows that the condition was corrected
"well within" the specified time for abatement.

lf

Senate Report 181, 95th Cong., 1st Sess. 1, 14, reprinted in U.S. Code.
Cong. and Admin. News, 3401, 3414 (1977).

2132

The operator in this case is small in size and had three previous
unrelated violations (on September 13, 1978), with penalties totaling $90.
As previously noted, Respondent does not take issue with the fact of the
violation or the amount of the penalty assessed, assuming jurisdiction under
the Act. Under all the circumstances and considering the evidence presented
in light of the criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977, I find that the penalty of $84, originally
assessed in this case, is appropriate.
Wherefore the Respondent is ordered to pay a penalty assessment of
$84 within 30 days of the date of this decision.

Distribution:
Jonathan Kay, Esq., Office of the Soli
Room 3555, 1515 Broadway, New York,

or, U.S. De rtment of Labor,
10035 (Certified Mail)

Sherman v. Saunders, Jr., W. F. Saunders & Sons, Inc., Drawer "A,"
Nedrow, NY 13120 (Certified Mail)

2133

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceeding
Docket No. HOPE 78-690-P
A/O No. 46-01576-02021

Petitioner
v.

Itmann No. 3 Mine
ITMANN COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND

ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Cook

A petition for assessment of civil penalty was filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act) in the
above-captioned proceeding. An answer was filed and a prehearing order was
issued. Subsequent thereto, various motions and related documents were
filed requesting approval of a settlement and dismissal of the proceeding.
The statements contained in these filings are set forth below.
Information as to the six statutory criteria contained in section 110
of the Act has been submitted. This information has provided a full disclosure of the nature of the settlement and the basis for the original determination. Thus, the parties have complied with the intent of the law that
settlement be a matter of public record.
ht agreed settlement has been reached between the parties in the amount

of $229.

The assessment for the al.leged violations was $310.

The alleged violations and the settlement are identified as follows:
Notice or
Order No.
7-0056
7-0139

Date

30 CFR
Standard

Assessment

4/12/77
7/22/77

70.lOO(b)
75.200

$90
220

2134

Settlement
$ 9
220

The initial motion to approve settlement and dismiss was filed by the
Petitioner on January 2, 1979, proposing to settle Notice No. 7-0056,
April 12, 1977, 30 CFR 70.lOO(b) (alleged respirable dust violation) for
$9 and Order No. 7-0139, July 22, 1977, 30 CFR 75.200 (alleged roof violation) for $110. On January 31, 1979, an order was issued indicating that
the proposed settlement for the alleged respirable dust violation could be
approved 1/, but that the information contained in the record was insufficient for-purposes of determining that the public interest would be adequately protected by approval of the settlement for the alleged roof violation. Accordingly, the request for approval of settlement was denied.
The motion set forth the following reason in support of the settlement of
the alleged respirable dust violation: "l. The respirable dust standard
violation * * * is covered by the blanket agreement approved by Judge Kennedy
in May of 1978."
The Petitioner filed its second motion for approval of settlement on
July 19, 1979, reiterating the previously submitted settlement proposal for
the alleged respirable dust violation, but proposing to settle the alleged
roof violation for $220. On September 12, 1979, an order, similar to the
January 31, 1979, order, was issued denying the Petitioner's request for
approval of s,ettlement.
Since the alleged roof violation has been the sole impediment to a disposition of this case short of an evidentiary hearing, it is appropriate to
set forth the allegations pertaining to it contained in the petition for
assessment of civil penalty. The order of withdrawal, a copy of which
accompanied the petition, states the following:
Loose, inadequately supported roof and loose overhanging
brows were observed at numerous locations along the sugar
run track haulageway from survey station spad 3977 inby
for approximately 650 feet to an area near station spad
4260. Several areas along the above-mentioned haulageway were observed where bolt spacing exceeded 10 feet
and some of the installed bolts were inaffective due to
sloughing. The ribs in three fallen areas were not supported. Numerous crossbars (6 inches by 8 inches by
varying lengths) installed in the affected area were
broken and/ or sagged (to what appeared to be a maximum
load) due to excessive weight. Four men were working
approximately 200 feet inby the beginning of the
affected area and the operator stated that they had
closed the area for rehabilitation purposes; however,
no danger signs were observed and the conditions were
not listed in the preshift examiner's book on this date.

On October 5, 1979, the Respondent filed a motion to approve settlement
and dismiss stating, in part, as follows:
];,/ The attached copy of a decision in Secretary of Labor, Mine Safety and
Health Administration v. Consolidation Coal Company, Docket No. MORG 78-339-P
(September 29, 1978) sets forth the reasoning for such settlement approval.

2135

1. On or about December 28, 1978, the original motion
to approve settlement was filed by MSHA. On January 31,
1979, the Judge issued a decision disapproving the proposed
settlement. Since then the parties reviewed the entire matter in light of the Judge's disapproval. They believed that
a second proposed settlement would have been an appropriate
disposition of the case. However, they recognized that
reasonable men might differ and there might be more than one
proper disposition for any case. Therefore, on July 18, 1979,
a different settlement was proposed.
The Judge, in his decision disapproving the original proposed settlement, stated that the proposed settlement of the
alleged violation of 30 CFR 70.lOO(b) could be approved as
proposed. Therefore, the second motion dealt only with the
settlement of the alleged violation of 30 CFR 75.200. The
Judge disapproved the second settlement on September 12, 1979.
This, the third proposed settlement of the alleged-violation of 75.200 is for $220, i.e., 100 percent of the amount
proposed by the Office of Assessments.
2. This amount is proper. (At any hearing the operator
would produce testimony that only men working to correct the
condition went. inby the beginning of the affected area.)
MSHA could produce no testimony to the contrary. The inspectors who signed the Order would testify that the miners they
observed inby were working to correct the condition.
3.

Respondent is a large operator.

4. Payment of the proposed assessment will have no
effect on Respondent's ability to remain in business.
5. Respondent's history of previous violations has been
submitted in prior proposals by MSHA.

6. Respondent demonstrated good faith in attempting to
achieve rapid compliance.
7. The alleged violation was the result of ordinary
negligence.
8. The alleged violation was not serious under the
circumstances.
9. The previously submitted Proposed Assessment and
Inspector's Comment Sheets are hereby incorporated by
reference.

NEW MATTER
10. The mine was on vacation from July 3, 1977, through
July 17, 1977.

2136

11• Shortly after vacation, management became aware of
the roof and rib conditions in the general area from spad
3977 through spad 4260 along the Sugar Run Track Haulageway.
Management does not agree that the entire area presented a
problem. There were only a few areas where work had to be
done.
12. Management closed what it considered to be the
affected area on or about July 19, 1979. No persons except
those authorized by the operator to enter the place to work
at eliminating the condition traveled into the subject area.
13. A plan was posted describing the rehabilitation work
being done.
14. On Wednesday, July 20, 1979, Inspector Sammy Bell
inspected the Itmann No. 3 B Mine. Before the inspector
went underground, Superintendent Glen Blankenship informed
him that an area of the Sugar Run Track Haulageway had been
closed for repairs. Only experienced and certified people
were working in the area under the supervision of a certi-·
fied foreman. The track was closed not being used [sic] for
any reason. Inspector Bell and Lee Stewart, mine foreman,
traveled to the subject area. When he returned to the surface, Mr. Bell discussed the situation with Superintendent
Blankenship and Mine Foreman Stewart. Inspector Bell stated
that he knew the area was closed and work was already being
performed to rehabilitate the area. However, Mr. Bell said
that he intended to discuss the situation with the MSHA roof
control experts at his office. Inspector Bell left the mine
without issuing any notices or orders in the subject area.
15. Two days later, on Friday, July 22, 1977, Inspector
Bell returned to the mine followed by Inspectors Charles
Hambric and Hubert McKinney. All inspectors were told by
Superintendent Blankenship that the area was closed and that
work was already being performed to correct the condition.
The three inspectors, Superintendent Blankenship and Mine
Foreman Stewart traveled to the subject area. After observing
the subject area for about thirty (30) minutes the Inspectors
verbally issued a closure order. They came to the surface
and after calling their MSHA supervisor, wrote the subject
104(a) Order.
16. The allegation that men were working two hundred
(200) feet inby the beginning of the affected area is totally
false. The operator had already rehabilitated the first
two hundred (200) feet of the area to the point where the men
were working. A difference of opinion arose as to whether
more work was needed on certain brows found outby where the
men were working.

2137

17. There were no other crews working anywhere near the
area of the mine.
18. Since the operator had complied with the roof control plan by posting a plan for the rehabilitation work, it
did not feel that hanging a danger sign and making an entry
in the pre-shift examination book were necessary. MSHA agreed
with this argument at the time or they would have issued an
additional notice of a violation of 30 C.F.R. Section 75.303.
19. Respondent strenuously contends that a violation of
Section 75.202 may have existed but that alleged violation was
certainly not an imminently dangerous condition as evidenced
by the fact that Inspector Bell himself permitted the same
conditions, practices and procedures to exist for over
two (2) days from the time he first observed them.
Paragraph Nos. 2, 3, 4, 5, 6, 7 and 9 merely restate the justifications
advanced by the Petitioner in its July 19, 1979, motion. In paragraph No. 8,
supra, Respondent classifies the alleged violation as "not serious under the
circumstances," whereas the Petitioner's July 19, 1979, motion classified it
as "moderately serious in the circumstances."
On October 18, 1979, the Petitioner filed a motion requesting that the
Respondent's settlement motion be approved, stating, in part, as follows:
The Respondent, Itmann Coal Company, has moved that
§104(a) Order of Withdrawal No. 1 SRB/HM/SRB (7-0139) which
issued on July 22, 1977, citing 30 CFR 75.200, be approved by
Respondent's payment of $220.00 (which amount was received by
the Office of Assessments on August 7, 1979). The payment is
in the same amount as that proposed by the Assessment Officer,
see Form A0-2lc attached, which shows the points assessed pursuant to 30 CFR 100.3 in each of fifteen categories by which
the proposed civil penalty of $220.00 was determined. The
Office of the Solicitor by reference adopts the allegations
and attachments contained in its previous two motions for
approval of settlement, which show the Respondent is a large
operator, payment will have no effect on its ability to
remain in business, that there have been 478 previously paid
violations and 34 paid·30 CFR 75.200 violations, that a
normal degree of good faith was demonstrated in abating the
condition after the order of withdrawal issued, that the violation was the result of ordinary negligence, and, in view
of the fact that the area had been closed, that the violation was only moderately serious.
The Office of the Solicitor notes the new material submitted by the Respondent and deems it additional reasons why
the settlement in the amountof $220.00 should be approved as
being a reasonable amount under the facts shown.

2138

On November. 27, 1979, an order was issued noting that the last· paragraph in the above-quoted passage appeared to be an adoption of the "new
matter" submitted by the Respondent on October 5, 1979.

The order stated that:
[i]f the Petitioner intends this as an adoption, then the
Petitioner is ORDERED to file with the undersigned Administrative Law Judge, within 20 days of the date of this order,
an affirmative statement that it adopts the "new matter" submitted by the Respondent on October 5, 1979, as an accurate
statement of facts and as additional reasons in support of
the proposed settlement.
On December 5, 1979, the Petitioner responded to the November 27, 1979,
order as follows:

The undersigned attorney on behalf of the Mine Safety
and Health Administration (MSHA) responds to the Order that
MSHA either expressly adopt or reject the various Respondent's "new matter" quoted in the Order as follows:

1. The Order quotes a statement by the Petitioner reading, "The Office of the Solicitor notes the new material submitted by the Respondent and deems it additional reasons why
the settlement in the amount of $220 should be approved as
being a reasonable amount under the facts shown." This
statement was intended only as acknowledgement that at a hearing Respondent's witnesses would testify as alleged in support of the allegations designated by the Respondent as "new
matter", so it is appropriate to consider in approving settleinent. The Petitioner had already stated its position in
two motions to have the settlement approved, and had indicated in a telephone conference call that there was little
more it could offer. The Respondent at that time offered to
reveal its position and subsequently by the "new matter" did
so.
2. Federal Coal Mine Inspectors Charles D. Hambric, Jr.,
and Herbert (not Hubert) McKinney have each communicated by
telephone more than once with the undersigned attorney and we
have discussed in depth the quoted material in the above mentioned Order, and the undersigned attorney has read to each
Inspector the Response to each statement and MSHA's comment
which the Inspectors have agreed is, in their respective
opinion, true. Sammy R. Bell is a former Federal coal mine
inspector no longer employed by the Federal Government.
Mr. Bell is believed to reside in Crab Orchard, West Virginia,
and so he should be available as a witness in response to an
appropriate subpoena. Nevertheless, since Mr. Bell is not a

2139

present employee of MSHA, the Office of the Solicitor has at
present only office records and the recollection of Messrs.
Hambric and McKinney and other MSHA personnel to develop
Mr. Bell's position concerning the issuance of the subject
order of withdrawal.
3. Brief Statement of Facts: (According to Inspectors Hambric and McKinney): There had been a substantial
unplanned roof fall in the underground bituminous coal mine
and Respondent's personnel, as a result, had hauled away a
substantial amount debris. The area was along a rail haulageway used, or to be used, at least after the unplanned
roof fall as a haulageway for supplies only. Inspector Bell
had briefly observed the beginning of the area where the
unplanned roof fall has occurred [sic] a few days prior
to July 22, 1977 (the day the subject order of withdrawal
issued), and had been concerned with the manner in which
the roof had been and was planned to be rehabilitated.
There appears to have been a discussion between former
Inspector Bell and unknown Management personnel in which
the latter justified the roof rehabilitation plan posted
for the reasons that only supplies would be hauled on the
travelway and miners had verbally been ordered to stay out
of the area. Mr. Bell took no action at that time based
upon his cursory view of the scene, but obviously he was
concerned because he, upon returning to the MSHA Office,
through office channels, requested a roof control specialist
be assigned to return with him to the mine while an inspection was made of the entire area affected by the unplanned
roof fall. In response to former Inspector Bell's request,
Mr. Hambric and Mr. McKinney (roof control specialists)
returned with Mr. Bell to the mine on July 22, 1977, where a
careful inspection of the entire area taking several hours
(not thirty minutes, as suggested by the Respondent) was
made by the three inspectors. The Inspectors are looking
for, but have not located, a mine map which would show the
distance of the area affected by the roof fall but suggests
that as much as 1,000 feet was involved. The Inspectors were
alarmed to observe that there was a power center at the rear
of the area where the roof was substandard. Under certain
conditions mine personnel must go to the power center to
inspect equipment and possibly reset breakers and perform
other services. True, the power center can be reached by
traveling in a long loop so it can be entered from the rear,
but this route is so much longer and more difficult than
passing under the area where the roof was substandard that
all three MSHA inspectors were concerned that mine personnel
would use the haulageway to reach the power center instead
of using the haulageway only to haul supplies as the Mine
Operator insisted it would be used. The Respondent was only

2140

opening up the area by removing debris and taking down roof
where necessary so track haulage equipment could pass,
insisting that that was all that was necessary since the
area would only be used to haul supplies. The three inspectors required that loose brows be supported by roof bolts or
taken down, and other work, as described in the order of withdrawal, be done. We emphasize that Mr. Bell had not previously inspected the area, other than superficially, before
the three inspectors on July 22, 1977, went over every bit of
it. The three inspectors were unanimous in the opinion that
the roof and rib conditions observed by them during the
inspection constituted an imminent danger. The area had
not been posted with a danger sign although the miners had
verbally been told to stay away from the area unless authorized to work on the roof rehabilitation. The three inspectors verbally issued a §104(a) order of withdrawal after
completing their inspection. Then, the inspectors returned
to the surface where a discussion was had with mine personnel
who, although recognizing that the roof presently posed a
danger, were of the opinion that the verbal orders issued to
prevent employees from entering the area were adequate and no
danger sign need be posted, and Management was of the opinion
that its posted plan to rehabilitate the area was sufficient.
The Inspectors and MSHA take the position that, since the
roof and ribs were admittedly inadequately supported, there
was a violation of 30 CFR 7 5. 200 in the absence of dangering
off the area. A verbal order to prevent entrance to the area
is only effective as to miners who hear the order, so a
physical sign is necessary warning.miners to stay away. In
this connection, the two Inspectors (Messrs. Hambric and
McKinney) agree that an experienced miner should have been
able to look at the mine roof after the fall and know enough
not to continue under it. The witnesses agree that the roof
control plan to rehabilitate the area was posted as required
by the roof control plan whenever there had been an unplanned
roof fall; however, MSHA is uncertain as to the relevancy of
this fact since the Respondent has not been charged with
violating this part of the roof control plan.
MSHA' s Position on Ead \!legation Under "New Matter" and Our
Comment:
4. Responding to paragraph numbered ten of Respondent's
Motion, Inspectors Hambric and McKinney state they have no
exact recollection but the allegation is probably true.
COMMENT: A miners' vacation is normally taken about
this time of the year.
5. Concerning paragraph numbered eleven of Respondent's
Motion, the Inspectors agree that the allegations therein are

2141

true except the two MSHA employees consider that several areas
rather than "a few areas" had to have work done, and refer to
the order of withdrawal for a description of what had to be
done.
COMMENT: The difference of opinion appears to be a difference of opinion as to whether the area had to be made safe
for pedestrian traffic or merely safe as a haulageway for supplies. There does not appear to be much difference between
the parties as to the physical condition of the area, merely a
difference of opinion among experts as to what was needed to
be done.
6. Concerning paragraph nmnbered twelve, HSHA agrees that
Management had verbally ordered that no one except authorized
personnel enter the area, and we do not know when or how that
order issued, so the allegations are true.
COMMENT: The area had not been dangered off and MSHA
urges that, in view of the dangerous condition of the roof
and ribs, a danger sign must be posted to prevent a violation
of 30 CFR 75.200. Furthermore, MSHA is concerned that the
verbal order would not preclude persons from approaching the
power station by traveling under the roof area under
discussion.
7. Concerning the allegation contained in paragraph
numbered thirteen, as stated previously, MSHA agrees that
such a plan was required after a roof fall and it had been
posted. The allegation is true.
COMMENT: Posting of such a plan would not be in lieu of
posting a danger sign.
8. Concerning the allegations in paragraph nmnbered
fourteen of Respondent's Motion, because Mr. Bell is no
longer a Government employee we were unable to discuss the
matt~r with Mr. Bell.
However, the allegations are supported in part by certain MSHA records, and we believe the
allegations are probably true.
9. Concerning the allegations in paragraph nmnbered
fifteen, the two Inspectors are uncertain as to what day
Mr. Bell first saw the area of the unplanned roof fall, but
agree it could have been July 20, 1977. The three inspectors went over the entire area so it took several hours
rather than thirty minutes. The other allegations in the
paragraph are true.

2142

COMMENT: The reason the inspectors telephoned the MSHA
office for advice was because, although they agreed the condition constituted an imminent danger, they were uncertain
whether to follow through with what they had verbally told
Respondent's personnel underground and issue a written
§104(a) imminent danger order of withdrawal or instead to
issue an order of withdrawal under §103(f) of the 1969 Coal
Mine Act since there had been an unplanned roof fall which
is an accident. The three inspectors were properly instructed by Mr. Bell's supervisor that where an inspector considers a condition of imminent danger exists, it is mandatory
that a §104 (a) order of withdrawal issue even though the
situation also meets some other provision of the Act (such
as §103(f)). Thus, the three inspectors drafted and each
signed and issued the subject order of withdrawal.
10. Concerning paragraph numbered sixteen of-the Motion,
the two inspectors insist that they observed four miners working approximately 200 feet inby the beginning of the area
affected by the unplanned roof fall, so MSHA denies all but
the last sentence of that paragraph.
COMMENT: The Inspectors were dissatisfied with some of
the work which Management considered completed, which would
be the reason for the above.disagreement. The Inspectors
observed loose bolts and loose brows (see order of withdrawal)
and insisted the same be corrected. Management insisted that
since the area would be used only to haul supplies, such work
was unnecessary.
11. The allegation in paragraph numbered seventeen of
the Motion is true.
COMMENT: Nevertheless, the two Inspectors were concerned that at some time miners may travel the haulageway to
obtain access to the power center, so they insisted that
places dangerous to pedestrian traffic in the area be
corrected.
12. Concerning paragraph numbered eighteen, MSHA agrees,
as stated previously, that the required plan to rehabilitate
the area where the unplanned roof fall had occurred had been
posted.
MSHA agrees that Respondent's personnel did
sincerely believe that it was not necessary to post a danger
sign and make an entry in the preshift examination book, but
the opinion of Respondent's personnel was erroneous and contrary to law. MSHA denies the allegation or reasoning of the
second sentence of paragraph numbered eighteen.

2143

COMMENT: Even though the conditions were less than an
imminent danger, the fact that dangerous roof and rib conditions existed caused there to be a violation of 30 CFR
75.200 since no danger sign was posted. This is true
even though the condition was being corrected before the
inspection. Concerning the second sentence of paragraph numbered eighteen, inspectors often have a choice of mandatory
safety standards that can appropriately be cited as a result
of a particular condition or practice observed, and sometimes
an inspector will cite only the standard of standards most
pertinent or best supported by what the inspector personally
observed. Since the three Inspectors did not have personal
knowledge as to when the mine roof fell, the Inspectors cited
30 CFR 75.200 based on the conditions which each inspector had
personally seen rather than the circumstantial evidence which
would be required under the circumstances to support 30 CFR
75.303. Furthermore, a 30 CFR 75.303 violation would not have
been an imminent danger. The failure to cite 30 CFR 75.303
is not evidence that the Inspectors did not consider that a
danger sign must be posted. The Respondent's reasoning lacks
validity.
13. Concerning paragraph numbered nineteen, MSHA denies
the allegations contained therein.
COMMENT: Obviously Inspector Bell did not recognize
that a condition of imminent danger existed when he observed
the area earlier, but he did not proceed far enough into the
area to recognize the potential of the problem. Mr. Bell
merely saw enough to recognize that a MSHA mine roof control
specialist should inspect the area, and then he left. Whether
there was a 30 CFR 75.202 violation is not relevant to this
proceeding. This is not a face area or near a face area, and
even the administrative law judges are divided on the issue as
to whether other than the first sentence of 30 CFR 75.202
relates to a mine area other than "at or near each working
face." There was a violation of 30 CFR 75.200 which requires
that the roof and ribs of all active underground roadways,
travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of
the roof or ribs. Obviously, Respondent recognized the roof
and ribs in this area were inadequately supported or the verbal order requiring the miners to not enter without authorization would not have issued, but the area should have been
dangered off so there is a violation of the mandatory safety
standard. Considering the speed with which a loose brow can
fall, we consider there was an imminent danger if pedestrian
traffic were present, not otherwise. In this connection we
note that the Respondent's personnel did assure the Inspectors ·that the area would only be used to haul supplies, but

2144

the Inspectors were not satisfied because of the location of
the power center and required additional work to be done.
14. The Office of the Solicitor suggests that $220.00
is a reasonable amount to asses·s as a civil penalty for these
reasons:
a. The Respondent is correct that there is no imminent danger in the event there is no pedestrian traffic, and
Respondent insists that the haulageway would only be used to
haul supplies.
b. MSHA inspectors admit that the power center can
be reached by a route other than passing under the substandard roof.
c. The Respondent was attempting to correct the
condition before any inspector observed it.
d. There was a question between MSHA experts and
Management experts as to whether the work was being done
properly; however, the fact that Inspector Bell had to obtain
the aid of MSHA roof control specialists demonstrates that the
problem was somewhat complicated and lent itself to a diffence
of opinion among experts.
e •. The Respondent was sincere in its erroneous
belief that the verbal instructions to stay out of the area
sufficed, without a dang.er sign.
The reasons given above by counsel for the parties for the proposed
settlement have been reviewed in con.Junction with the information submitted
as to the six statutory criteria contained in section 110 of the Act. After
according this information due consideration, it has been found to support
the proposed settlement. It therefore appears that a disposition approving
the settlement will adequately protect the public interest.
ORDER
.Accordingly, IT IS ORDERED that the proposed settlement, as outlined
above, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that the Respondent be, and hereby is ASSESSED
a civil penalty in the agreed-upon amount of $229.
Since the Respondent has paid the agreed upon settlement amount of $220
for the alleged violation of 30 CFR 75.200, IT IS FURTHER ORDERED that the
petition for assessment of civil penalty be, and hereby is, DISMISSED as
relates to such alleged violation.

2145

IT IS FURTHER ORDERED that the Respondent pay a civil penalty in the
agreed-upon amo.unt of $9 for the alleged violation of 30 CFR 70.lOO(b)
within 30 days of the date of this decision if such amount has not been
paid to date.

Law Judge
Distribution:
John H. O'Donnell, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

2146

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

September 29, 1978

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

Civil Penalty Proceeding
•

,;Docket No. MORG 78-339-P
A/O No. 46-01455-02001
Osage No. 3 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND
ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

Michael V. Durkin, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Karl T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Cook

The Mine Safety and Health Administration (MSHA) filed a petition for assessment of civil penalty pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977 (Act) in the abovecaptioned proceeding. Subsequent thereto, MSHA filed a motion
requesting approval of a settlement.
Counsel for MS!µ stated in part as follows in its motion:
2. MSHA submits the assessment file which contains
the order of assessment, the notices of violation, the
computer printouts, the notices of termination, and the
inspector's statements f.:.r all of the violations alleged
herein.
3. Consolidation has already paid $9.00 for the
violation of Section 70.lOO(b) on January 30, 1976 as
part of a general settlement of all respirable dust
cases. Said settlement was negotiated through the
Office of the Solicitor. This penalty has already been
paid.

2147

4. Consolidation Coal Company has agreed to pay
$160. 00 ._ the full proposed assessment, for the violation
of § 75.309 on March 17, 1976.
Pursuant to an order of the Administrative Law Judge, information as to the six statutory criteria contained in section 110 of the
Act was submitted. Thus, the parties have complied with the intent
of the law that.settlement be a matter of public record.
As stated by counsel for MSHA in the motion the settlement as to
the notice of violation citing 30 CFR 70.lOO(b) is a part of a general
settlement of many respirable dust cases.
A settlement statement was filed by counsel for MSHA in a number
of prior cases, one of which is entitled Secretary of Labor, Mine
Safety and Health Administration (MSHA), v. Bishop Coal Company,
Docket No. HOPE 76X459-P, setting forth some of the background of
these cases and reasons for. a·pproval of settlement. These cases have
a long history, some of which is alluded to in the settlement statement of MSHA which refers to the case entitled Eastern Associated
Coal Corp. (On Reconsideration En Banc), 7 IBMA 133 (1976); Eastern
A$sociated Coal Corp., 7 IBMA 152 (1976), and a later Department of
the Interior Secretarial stay of that decision. (This stay was later
dissolved by an order of the Secretary of the Interior.)
In view of the background of these cases as ·reviewed in the
above-described documents and the Board of Mine Operations Appeal's
decisions referred to above, the actions of the Secretary of the
Interior as relates to those decisions, the action of Congress in the
passage of the Federal Mine Safety and Health Amendments Act of 1977,
P.L. 95-164, and the stipulation for settlement, it is considered
that it would be in the public interest, and in the interest of the
parties hereto, to approve the proposed settlement.
As relates to the proposed settlement concerning an alleged
violation of 30 CFR 75.309, in view of the fact that the proposed
settlement is in the same amount as the original assessment of
penalty, thus constituting no reduction in penalty, and in view of
the disclosure as to the elements constituting the foundation for
the applicable statutory criteria, it appears that a disposition
approving the settlement will adequately pro~ect the public interest.
ORDER
Accordingly, IT IS ORDERED that the proposed settlement as
outlined above be, and hereby is, APPROVED.
Counsel for MSHA states that the proposed settlement penalty as
to the alleged violation of 30 CFR 70.lOO(b) has been paid.

2148

IT IS THEREFORE ORDEREL that Respondent within 30 days of the date
of this decision pay the agreed upon perialty of $160 assessed in this
proceeding as relates to the alleged violation of 30 CFR 75.309.

Law Judge
Date Is~ued:

September 29, 1978

Distribution:
Michael V. Durkin, Ee;., ·25fi:ce of the Solicitor, Mine Safety
and Health Administration, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Karl T. Skrypak, Esq., Consolidation Coal Company,
Consol Plaza, Pittsburgh, PA 15241 (Certified Mail)

2149

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
•015 WILSON BOULEVARD ·
ARLINGTON, VIRGtNiA 22203 .

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

Civil Penalty Proceeding
Docket No. DENV 79-315-PM
A/O No. 34-0091.9-05001
Portland Pit

GENERAL MATERIALS, INC.,
Respondent
DECISION
Appearances:

Barbara G. Heptig, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, 75202
for the Petitioner;
Leroy Powers, Esq.,
Oklahoma City, Oklahoma, 73102 for the Respondent.

Before:

Judge Stewart
Procedural Background

The above-captioned proceeding is brought pursuant to section 110
of the Federal Mine Safety and Health Act of 1977 (hereinafter, the
Act) 30 u.s.c. § 820(a) (1978). The hearing in this matter was held
on September 17, 1979, in Oklahoma City, Oklahoma. Petitioner called
one witness and introduced five exhibits. Respondent called a single
witness. Both parties waived the rights to submit posthearing briefs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The two violations of mandatory safety standards at issue herein
were alleged to have occurred at Respondent's. Portland Pit on
July 26, 1978. Inspector Russell Smith observed the alleged violations during the course of a regular inspection and in both instances
he issued a section 104(a) citation.
The parties offered the following stipulations at the hearing:
(a) The number of annual man hours worked at the Portland Pit
in 1977 was 18,110, and

2150

(b) General Materials, Inc., has received no previous citations
under the Mine Safety and Health Act of 1977.
There is no indication on the record that any penalty assessed
in this proceeding would adversely affect Respondent's ability to
remain in business.
Citation No. 00166186
Inspector Smith issued citation No. 00166186 alleging a violation of 30 CFR 56.14-1. 1/ He described the pertinent condition as
follows: "V-Belt drive on 1F3 stacker conveyor was not guarded to protect workers." The operator placed a guard over the V-belt drive
within the time set for abatement by the inspector, thereby demonstrating a normal degree of good faith.
The V-Belt drive observed by the inspector was located at the
top of a conveyor. To reach this drive, a person would climb a
4~or-5 foot ladder and proceed approximately 120 feet up a walkway
adjacent to the conveyor belt. A double railing extended along the
walkway. The bottom railing was 18 inches and the top railing
was 42 inches above the walkway.
Section 56.14-1 requires that drive pulleys and similar exposed
moving machine parts which may be contacted by persons and which
may cause inJury to persons shall be guarded. The condition at issue
was in violation of the mandatory standard as alleged. Inspector
Smith and Naaman Gentry, Respondent's plant manager, agreed that the
pulley in question was unguarded. Moreover, the pinch point was
located where the V-belt rotated over the pulley, 10 inches above
and out from the top railing. A person could contact this pinch
point and suffer injury.
The respondent was negligent in that the condition was readily
observable, but corrective action was not taken until after the
issuance of the citation.
It was improbable that this condition would result in an accident or inJury. Respondent's employees had occasion to work in the
vicinity of the V-Belt drive only when repair or maintenance was
necessary. The company rule on these occasions forbade work on
conveyors or equipment when such machinery was in operation. Before
such work was undertaken, a disconnect switch in the control tower

1_/

30 CFR 56.14-1 reads as follows:
Gears; spockets; chains; drive, head, tailm and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons, shall be guarded.

2151

was locked out. A second disconnect switch located rear the drive
was also pulled. Since Respondent's employees were in the area
only when the machinery was inoperative it was unlikely that the
lack of a guard would result in an accident. If an accident were
to occur, however, it coulo result in the severing of a hand or
fingers.
Citation No. 00166187
The inspector issued Citation No. 00166187 alleging a violation
of 30 CFR 56.ll-12. 2/ He described the pertinent condition as follows:
"One stand for guardrail on dredge was broken leaving an area without
protection." The operator replaced the broken stanchion within the
time set by the inspector for abatement, thereby demonstrating a
normal degree of good faith.
·
The guardrail or barrier at issue was comprised of a chain supported by stanchions which had been placed at intervals of 8 feet.
Because the stand was broken, the chain was hanging at a height
of 18 to 24 inches, 16 to 18 inches lower than it would have otherwise, for a distance of 16 feet.
The guardrail and broken stand at issue were located along a
walkway on the outer perimeter of a dredge. This walkway was used
by the dredge operator when boarding and leaving the dredge. It was
also used once every 2 weeks when the dredge was refuelod.
Section 56.11-12 requires that openings near travelways through
which men may fall shall be protected by railings or barriers. The
condition was in violation of this mandatory safety standard as
alleged. Because the. stanchion had been broken, the chain would not
protect those who used the walkway from falling into the water.
The operator was negligent in that the condition was known, yet
corrective action had not been taken. The dredge operator told the
inspector that repair efforts had already been contemplated. Even
if mine management did not have actual knowledge, they should have
known of the condition because it was visually obvious. The chain
was hanging at a noticeably lower height.
It is probable that this condition would result in accident.
The operator of the dredge walked through the area on a daily basis
to get on and off the dredge and he had occasion to work in the area
at least one every two weeks while refueling the dredge. It is
~/

30 CFR 56.11-;2 reads as follows:

Openings above, below, or near travelways through
which men or materials may fall shall be protected by railings,
barriers, or covers. Where it is impractical to install such
protective devices, adequate warning signals shall be installed.

2152

unlikely that injury would result, however, if an accident were to
occur. The inspector testified that an uninjured man would have no
problem climbing back onto the barge. The dredge was stationery when
in operation and there was no appreciable current in the pond. In
addition, a company rule in effect at the time required that life
jackets be worn to and from the dredge. Mr. Gantry testified that
this rule was generally observed.
ASSESSMENTS
In consideration of the findings of fact and conclusions of law
in this decision, based on evidence of record, the following assessments are appropriate under the criteria of section llO(i) of the Act:
Citation No.

Assessment

00166186
00166187

$35
30
ORDER

The Respondent is ORDERED to pay the amount of $65 within days
of the date of the decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Barbara Heptig, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 501, 555 Griffin Square Building, Griffin and
Young St'reets, Dallas, TX 75202 (Certified Mail)
Leroy Powers, Esq., 620 100 Park Avenue Building, Oklahoma City,
OK 73102 (Certified Mail)

2153

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceeding
Docket No. PENN 79-24
A/O No. 36-00823-03016

Petitioner
v.

Jane Mine
KEYSTONE COAL MINING CORPORATION,
Respondent
DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner,
MSHA;
Jerome H. Simonds, Esq., Freedman, Levy, Kroll and Simonds,
Washington, D.C., for Respondent, Keystone Coal Mining
Corporation.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed by
the Mine Safety and Health Administration against Keystone Coal Mining
Corporation. A hearing was held on December 13, 1979.
At the hearing, the. parties agreed to the following stipulations
(Tr. Vol I, 4-5)t
(1)

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

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

I have jurisdiction.

(4) The inspector who issued the subject citation was a duly authorized representative of the Secretary.
(5) A true and correct copy of the subject citation was properly
served upon the operator.

2154

(6) Copies of the subject citation and termination of the violation
at issue in this. proceeding are authentic and may be admitted into evidence
for purposes of establishing their issuance but not for purposes of establishing the truthfulness or relevancy of any statements asserted therein.
(7)

The alleged violation was abated in good faith.

(8) Imposition of any penalty in this proceeding will not affect the
operator's ability to continue in business.
(9)

The operator is large in size.

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. Vol. I, 1-103). At the conclusion of the taking of evidence, the parties waived the filing of written
briefs, propo32d findings of fact, and conclusions of law. Instead, they
agreed to make oral argument and have a decision rendered from the bench
(Tr. Vol. I, 103). A decision was rendered from the bench setting forth
findings, conclusions, and determinations with respect to the alleged violation (Tr. Vol. II, 2-6).
Bench Decision
The bench decision is as follows:
This case is a petition for the assessment of a civil
penalty under Section 110 of the Act. The alleged violation
is of 30 CFR 75.807. This mandatory standard provides:
All underground high-voltage transmission cables
shall be installed only in regularly inspected air
courses and haulageways, and shall be covered, buried,
or placed so as to afford protection against damage,
guarded where men regularly work or pass under them
unless they are 6-1/2 feet or more above the floor or
rail, securely anchored, properly insulated, and guarded
at ends, and covered, insulated, or placed to prevent
contact with trolley wires and other low-voltage
circuits.
The citation sets forth, in part, that the 4160 volt
high-voltage cable was not protected from damage nor was it
guarded where persons were required to cross under it. At
issue here is the provision in 75.807 that guarding be provided "* * * where men regularly work or pass under" the
high-voltage cable.
There is no dispute that the cable in question was high
voltage within the purview of the mandatory standard. In
addition, there is no dispute that the cable was 4 feet
from the floor. During the course of the hearing, I
earlier ruled that "regularly" modified both "work" and
"pass under." I adhere to that ruling.

2155

The travelway in question, along which this highvol tage cable was hung, passes by two crosscuts identified
as "C" and "D" on Respondent's Exhibit No. 1. The evidence
shows that in crosscut "D," there was a supply car with some
roof bolts and also some other junk in it. In crosscut "C,"
there were 15 posts.
The inspector testified that he cited these areas as
ones where men regularly worked or would pass under the
cable because miners would go into these crosscuts to get
the materials there. However, the operator's safety
inspector testified that by the time the citation was
issued, the working face had advanced 200 more feet beyond
this area and that there were crosscuts further inby where
posts arid other materials were stored. Accordingly, the
operator's safety inspector testified that even if these
crosscuts previously had been supply areas, they no longer
were so. Moreover, the operator's safety inspector testified that on the day before the subject citation was issued,
the inspector had traveled further inby the cited area past
new crosscuts which now constituted present supply areas.
I accept the testimony of the operator's safety inspector.
It_appears, therefore, that at the time the subject
citation was issued, the inspector actually knew that the
areas cited here were not places where men working in the
section would ordinarily go to get supplies. The Solicitor
expressly admitted that the fact that the posts or other
materials in crosscuts "C" and "D" might be obtained in an
emergency or when other supplies ran out would not bring
those crosscuts within the scope of the mandatory standard.
In light of the foregoing, I conclude that men did not
regularly work or pass under the high-voltage cable with
respect to crosscuts "C" and "D."
The high-voltage cable entered the transformer box in
the crosscut identified as "B" on Respondent's Exhibit 1.
I reject, as unpersuasive, evidence that either a man or a
toolbox was in that crosscut on the day the citation was
issued. No such contention is made in the citation itself.
The allegation made at the hearing is belated and not probative. Men could conceivably go under the high-voltage
cable to reach the transformer box, although this would be
very unlikely because, as the operator's safety inspector
testified, the cable was 4 feet off the ground at the
entrance to this crosscut and then ran down to 2 feet from
the ground where it entered the supply car in the crosscut.
Even more importantly, the operator's safety inspector
testified that although the transformer could malfunction,
it rarely breaks down. I found the operator's safety
inspector a persuasive witness. I accept his testimony.

2156

Based upon the testimony of the operator's safety
inspector and upon his description that a breakdown in the
transformer box is a rare occurrence, I find that men would
not regularly work or pass under the high-voltage cable in
order to reach the transformer box. Accordingly, I find
that there was no violation of this mandatory standard with
respect to crosscut "B."
On

the basis of the foregoing, the citation must be

vacated.
There is, however, another basis for vacating the citation. The mandatory standard requires that the high-voltage
cable be guarded unless it is 6-1/2 feet or more above the
floor. The inspector testified that at the dinner hole and
other places, high-voltage cables are "additionally" guarded.
However, no sample of a high-voltage cable was introduced
into the record and there was no evidence from MSHA as to
precisely how much or what kind of guarding is required by
75.807. From the record MSHA has made before me, it does
not appear what 75.807 requires of the operator in the form
of guarding; whether the operator knows what these requirements are; whether any guarding was present here and, if so,
why it did not satisfy the standard; and finally whether any
requirment of additional guarding can be read into the standard. On this basis also, the citation would have to be
vacated.
In light of the foregoing, I conclude there was no violation. The citation is vacated, the Solicitor's petition
is dismissed.
The foregoing bench decision is hereby AFFIRMED.
ORDER
It is hereby ORDERED that Citation No. 229408 be VACATED and the instant
petition be

DISMIS::-~·....,,,.~--~\..-~

•

Paul Merlin
Assistant Chief Administrative Law Judge
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)
Jerome H. Simonds, Esq., Freedman, Levy, Kroll and Simonds, 1730 K
Street, NW., Washington, DC 20006 (Certified l1ail)

2157

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

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

Civil Penalty Proceeding
Docket No. VA 79-0029-P
A.O. No. 44-05007-03002 V

Petitioner

v.
Mine No. 1
GRUNDY RED ASH COAL COMPANY,
Respondent
DECISION
Appearances:

James H~ Swain, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for the
Petitioner;
Terry L. Jordan, Esq., Grundy, Virginia, for Respondent.

Before:

Judge Stewart

The above-captioned civil penalty proceeding was brought pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the Act), 30 u.s.c. § 820(a). The Petition for Assessment of Civil
Penalty alleged two violations by Respondent. A hearing was. held on these
matters in Grundy, Virginia, on September 26, 1979. Two exhibits were
admitted in regard to Citation No. 318796 and two witnesses were called.
Citation No. 00318796 had' previously been assessed at $600 and Citation
No. 00318797 had previously been assessed at $500 by the MSHA office of
assessments.
Citation No. 00318796 issued on December 8, 1978, alleging a violation of 30 CFR 75.200. The inspector described the condition or practice
at issue as follows:
Roof bolts were being spaced 5 to 8 feet apart lengthwise and crosswise beginning at the faces of the No. 1, 2,
and 3 entries and extending outby for a distance of 24 feet
in the No. 1 entry, and 40 feet in the No. 2 and 3 entries of
the 001 section. Mountain cracks were present in the No. 1
entry and mine roof was being shot down by explosives in the
No. 2 entry which was in a roll. The approved roof control
plan requires that roof bolts be installed on 4 feet centers
lengthwise and crosswise.

2158

A notice of subsequent action, issued on December 11, 1978, stated:
"The mine was flooded by water during the weekend of December 9, and 10,
1978, and had to be pumped before work could begin to abate this citatio~.
Therefore more time is granted."
The citation was terminated by a notice issued on December 18, 1978,
which stated: "Roof bolt spacing in the No. 1, 2, and 3 entries of the
001 section was reduced to 4 feet centers lengthwise and crosswide by
installing addition roof bolts where required.
Citation No. 00318797, issued on December .8, 1978, alleging a violation of 30 CFR 75.316, stated:
Line brattice or other approved devices was not provided
in the No. 1 entry which had been developed 66 feet, the
No. 2 entry which had been developed 60 feet, and the No. 3
entry which had been developed 40 feet from the last open
crosscut's of the 001 section. The approval ventilation plan
requires that line brattice or other approved devices be continuously used from the last open crosscut in crosscuts to the
face of the 001 section.
This violation was abated on December 11, 1978, by a notice of subsequent action stating: "Line brattice was installed from the last open
crosscut of the No. 1, 2, and 3 entries of the 001 section to within 10 feet
of the face of each place."
The testimony regarding the financial condition of the mine along with
the statutory criteria to be considered in the assessment of a civil penalty
indicated that the operator was $150,000 in debt and had lost $300,000 on
the mine. Some of the mine equipment had been repossessed and the mining
of the 25 inch coal seam was unprofitable. After this testimony concerning
the effect of a civil penalty on Respondent's ability to remain in business
had been given, the part~es entered into further settlement negotiations and
agreed upon the paymentof $300 for each violation.
Petitioner moved on the record that the agreement be approved because:
The operator's ability to continue in business would be questionable
should the entire amount of the penalties originally assessed for the violations be affirmed and the Respondent ordered to pay. Although the operator
was negligent and the gravity was high in both instances, Mine No. 1 was a
small mine employing three or four men and producing only 8,750 tons of
coal per year. The operator demonstrated good faith in abatement of the
violation.
At the conclusion of the hearing the settlement negotiated by the parties was approved by the Administrative Law Judge. The approval from the
bench of the settlement agreement is hereby affirmed.

2159

ORDER
The operator is ordered to pay MSHA the amount of $600 within 30 days
of the date of this order.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Sidney Salkin, Attorney, Office of the Solicitor, U.S Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia PA 19104 (Certified Mail)
Terry L. Jordan, Attorney for Respondent, P.O. Box 747, Grundy, VA 24614
(Certified Mail)

2160

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

DEC 2 8 !9-,q

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

Civil Penalty Proceedings
Docket No. WILK 79-69-PM
A.C. No. 06-00018-05001

Petitioner
v.

Docket No. WILK 79-70-PM
A.c. No. 06-00018-05002

OTTAWA SILICA COMPANY,
Respondent

Lantern Hill Mine and Mill
DECISION
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
Richard E. Blodgett, Division Manager, Ottawa Silica Company,
Ledyard, Connecticut, for Respondent.

Before:

Administrative Law Judge Michels

These proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). The petitions
for assessment of civil pe~alty were filed by MSHA in both dockets (WILK
79-69-PM; WILK 79-70-PM) on January 18, 1979, and timely answers were filed
by Respondent. The cases were heard on both docket numbers in Middletown,
Connecticut, on October 18, 1979, at which both parties were represented.
Docket No. WILK 79-69-PM involved 20 alleged violations. Docket No.
WILK 79-70-PM involved two alleged violations. Evidence was received as to
each citation and a decision was rendered from the bench. These decisions
as they appear in the record, with certain necessary corrections or changes,
are set forth below.
Preliminarily, the Petitioner moved to withdraw its petition with
regard to Citation No. 212903 (Docket No. WILK 79~69) because the citation
was vacated. The motion was granted and the petition was withdrawn. Petitioner then moved to amend Citation Nos. 212894, 212895, 212904, 212906,
and 212908 to read 56.12-30 instead of 56.12-2. The Respondent moved to
dismis's those citations. The !'etitioner' s motion was denied and it moved
to withdraw its petitions with respect to those five violations. The motion
to withdraw the petition was granted and as to those citations the petition
was dismissed with prejudice.

2161

Docket No. WILK 79-69-PM
Citation Nos. 212896, 212898, 212899, 212900, 212907, 212909, and 212911,
issued July 11, 1978
The following is the bench decision on these citations found at
pages 54-60; 79-82; 91-93; 102-104; 112-113; 123-124; and 139-142 of the
transcript:
Citation No. 212896
This concerns Citation No. 212896.
The inspector charged as the condition or practice:
"Mandatory standard 56.12-32 was not being complied with in
that the electrical cover plates were not replaced in storage
building by shop." The standard cited reads: "Inspection
for cover plates on electrical equipment and junction boxes
shall be kept in place at all times except during testing
or repairs."
The first question is whether or not there has been a
violation. I believe that the facts in this are practically
undisputed. The evidence and the testimony shows that there
was a cover plate missing on a particular junction box, as
charged. Accordingly, I find a violation of mandatory standard 56.12-32 * * ~.
First, as to the history of violations, a document has
been received, P-36, which shows that for "the Lantern Hill
Mine and Mill, the Ottawa Silica Company was assessed on a
total of 24 citations in 1978. I will find that this is no
appreciable history o·f past violations. I also note, in
connection with this case * * * that 1978 was the first year
that the law became applicable to this operation.
The next criterion is the appropriateness of the penalty
to the size of the operator. The evidence shows that in this
operation there were 27 people or miners engaged in the work,
and 65,000 tons of material were produced annually.
Counsel for MSHA has indicated that this was a medium.sized company. He has presented no particular evidence by
which I can.measure the difference between companies, but
in the circumstances, I will find, at least for the purpose
of these violations, that this is a small-to-medium size,
and may well be a medium-sized company.
No evidence was adduced that the penalties to be
assessed here, or this penalty, will affect the operator's
ability to continue in business.

2162

It was further stipulated that the operator abated this,
as well as all the citations which will be considered in
these dockets, rapidly and in good faith, and I so find.
The fifth criterion would be with regard to gravity.
Normally, the fact a cover is off from an electrical appliance
or enclosure would be considered a serious violation. I will
take into account the fact that the evidence shows that this
receptacle or container was out of the practical reach of a
miner standing on the floor. Of course, it is always possible for someone, under some circumstances, to stand on a
chair or other object and to reach it. In the circumstances,
however, I would find that it is slightly serious.
The final criterion is negligence. In this case the
evidence shows that prior inspections under the predecessor
Act did not reveal the existence of this lack of a cover.
The testimony further shows that it is in an out-of-the-way
spot that would be easily overlooked. Furthermore, the
inspector, while he did testify that the operator should
have known, is, I believe, a little unclear in this regard.
And his observations, made in his report, may even show the
inconsistency. Accordingly, and in these circumstances,
especially since this was the first inspection made under
the new Act, I would find a small degree of negligence.
The assessment is as follows: Taking into account the
good faith and rapid compliance shown by the operator, the
fact that this was the first inspection under the Act then
recently made applicable to the operator, and the further
facts that there were, as I have found, only a small degree
of gravity as well as negligence, I will assess only a
nominal penalty in this instance, which will be $10.
That completes my decis.ion on this citation.
(Tr. 54-60).
Citation No. 212898
This is the decision on Citation No. 212898.
And if I didn't say so in the beginning, I should state
here and now that all of these citations are in WILK
79-69-PM. .
The inspector charged as follows: "Mandatory standard
56.12-32 was not being complied with in that the cover plates
on the electrical equipment were not replaced in electric
motor storage area." This charges the violation of the same
mandatory standard as the previous citation, and I will not
repeat the standard.

2163

'

,/

Again, there is no dispute about the fact of the violation. The inspector has charged the lack of cover plates,
and it was his testimony that there were two junction boxes
involved. The evidence suggests that in the area there were
three junction boxes, and there is no dispute that none of
these had cover plates on them. And, moreover, there is no
dispute about the testimony that there was no testing taking
place at the time.
And in light of these circumstances, and without repeating my previous remarks, but which are also applicable here,
I find that in this citation there is a violation, as
charged, of 30 CFR 56.12-32.
It is unnecessary to repeat my findings as to the criteria that are generally applicable. I need find, in addition here, only specifically as to gravity and as to
negligence.
So far as the gravity is concerned, it appears to me
that the seriousness is somewhat greater, in that, as
pointed out by counsel, three junction boxes were involved.
It is also shown that some of these junction boxes are out
on the outside of the wall of the shed, and were accessible
to a miner, which, in my view, would make it a more serious
violation.
Furthermore, at some point consideration should be given
to the fact that there were relatively large numbers of
similar conditions which have been charged in this proceeding. I could not take that into account in the first citation because there was no evidence as to other violations
at that point. However, at this time it is beginning to
show more of a picture of a failure to replace or to install
cover plates on these junction boxes. I will take that into
account. I will find, as to this citation, that it was
serious.
So far as negligence is concerned, my comments about the
fact that the showing is now of a failure in a number of
instances to have the cover plates installed, and thus I
think would show somewhat more negligence than it was possible for me to find on the previous citation. Nevertheless, and iri spite of all that, I will continue to take into
account the fact that the operator did show rapid good faith
in compliance, and furthermore, and which I think is imporrant, that this was the first occasion in which the mine was
'inspected under the Act recently made applicable. I think
that is important as a mitigating circumstance because, in
these circumstances, the mine and the operator is being for
the first time advised precisely and concretely as to what
the requirements are.

2164

Now, that's not a complete defense, because the law
doesn't allow such a defense, but it is a mitigating circumstance, in my view.
Taking all those factors into account, I will assess the
penalty of $25 for this violation.
That completes my decision on this citation.
(Tr. 79-82).
Citation No. 212899
This is Citation No. 212899.
The inspector found as the condition or practice as follows: "Mandatory standard 56.12-32 was not being complied
with in that an electrical cover plate was not replaced in
upper storage shed."
The mandatory standard cited is the same as that previously quoted in the record, and I won't repeat that.
The evidence presented shows that there was a violation
of this mandatory standard in that in the upper storage shed
an electric cover plate was either not replaced or missing.
The operator does not dispute the evidence. Accordingly,
I find that on this citation there was a violation of
30 CFR 56.12-32.
I need make findings on only two of the criteria which,
are gravity and negligence, since the findings on the other
criteria are applica~le to this citation also.
Gravity. In this instance, since the testimony shows
that the particular junction box was not readily accessible,
in fact almost inaccessible, I find that there is a slight
degree of gravity or seriousness.
So far as negligence is concerned, the box was located
in a relatively remote location. For that reason, ordinarily
this would not be, in my view, a high degree of negligence.
However, I do have to take into account that there is a pattern shown in this record of a number of such boxes. I
agree with counsel that a thorough inspection should have
revealed these violations or these conditions.
Nevertheless, I still continue to take into account the
. fact that the operator did comply in good faith rapidly, and
also the fact that this was an initial inspection under a
newly applicable Act. It is true, of course, that the law
was previously applicable under the old "Metal/Nonmetal" Act,

2165

but it did not carry the penalty. For such reason, I believe
that the enforcement procedures may have been somewhat different, and that is the reason for my view that, in a sense, the
operator was newly brought under an Act for which MSHA had
adopted new procedures for enforcement.
Under all these circumstances, I would find ordinary
negligence.
The penalty I will assess is, in this.instance, $20.
That completes my decision on this citation.
(Tr. 91-93).
Citation No. 212900
This is my decision on Citation No. 212900.
The inspector charged as the condition or practice he
saw: "Mandatory standard 56.12-32 was not being complied
with in that the cover plate was not replaced on electrical
equipment over Flour Bagger." I have previously quoted the
standard referred to and I will not repeat that.
As to the fact of the violation, the only evidence
received shows that the cover plate was not in place, as
alleged, on the box over the Flour Bagger. Accordingly, I
find that there was a violation of 30 CFR 56.12-32. The
prior findings on the points applicable have already been
made and they would not be repeated here. They are applicable to this citation.
As has been pointed out, this violation is very similar
to the previous citation, and I will decide it on the same
basis, and I will not repeat all of the comments that I have
made there.

I think this should be noted, however. I agree with
counsel to an extent that as we proceed, a picture of a
large number of violations seems to be emerging. However,
I think it should be noted that these violations, so far as
I can see, are all found on the same date. If the conditions were such that they were found over a period of time,
I think it would be much more significant. I agree, however,
that there is some significance in the large number, but not
to the extent it would be had this been a continuous series
of violations over a period of time.
Accordingly, as to gravity, I find a slight seriousness,
and as to negligence, ordinary negligence.

2166

Taking into account all the facts that I have previously
mentione·d, I hereby assess the same penalty as I did for the
previous citation, namely, $20.
(Tr. 102-104).
Citation No. 212907
This decision is on Citation No. 212907.
The condition or practice cited by the inspector was as
follows: "Mandatory standard 56.12-32 was not being complied with in that the cover plates were not replaced on
electrical equipment in dryer control room." The standard
cited has been previously quoted.
The evidence shows, and there has been no evidence to
the contrary, that the cover plate was missing as charged.
Accordingly, I find a violation of 30 CFR 56.12-32.
As noted by counsel for MSHA, this violation is more
serious than the others in that the electrical junction
boxes were accessible, and there was more than one
involved. I find, in the circumstances, it was a serious
violation. For reasons previously stated, I find, in this
instance, ordinary negligence. However, I do take into
account in the assessment those factors previously mentioned
as to other citations where applicable.

In all the circumstances, I find and assess a penalty
for this violation of $35.
(Tr. 112-113).
Citation No. 212909
This is Citation No. 212909.
The inspector charged as the condition or practice as
follows: "Mandatory standard 56.12-32 was not being complied with in that the cover plates were not replaced on
electrical equipment at dryer." I have already quoted the
standard referred to and will not repeat it here.
The evidence shows, and there has b~en no evidence to
the contrary, that there was a violation as charged in this
citation, namely, that a cover plate was not in place on the
electrical equipment at the dryer. Accordingly, I find, as
to this citation, a violation of 30 CFR 56.12-32, as charged.
A finding as to the generally applicable criteria are
incorporated with reference to this citation.

2167

On "gravity,"

it appears that this may not have been
quite as serious a violation, due to the fact that the electrical box was relatively inaccessible. I will take that
into account. Nevertheless, I find this to be a relatively
serious violation. I include in this finding, however, my
remarks previously made as to the gravity of these junction
box violations.
On "negligence," I also include my prior remarks. In
general, it is the kind of violation which the operator knew
or should have known about, and I find ordinary negligence.
Taking into account the various considerations
mentioned, I hereby assess the penalty for this violation
of $25.
(Tr. 123-124).
Citation No. 212911
This is the decision on Citation No. 212911.
The inspector charged as the condition or practice as
follows: "Mandatory standard 56.12-2 was not being complied with in that the electrical cover plates were not
replaced on electrical equipment in hawk shed." It should
be noted here that the inspector testified that citation
56.12-2 was an error. The number "3" was omitted, and it
should read, "56.12-32."
This standard has already been quoted and will not be
repeated here.
The first question is whether or not there was a violation of the standard. I accept the evidence, there being
nothing to the contrary, that this was an inactivated or
deenergized circuit. It had no electricity in it, and,
therefore, could not have harmed any miner. The issue,
obviously, is the fact of violation, however, and whether
that takes it outside of the standard. Counsel for MSHA
contends that even though the circuit is inactive, the
standard continues to apply, and Mr. Blodgett's safety
director for the operator contends that it should not
apply in such circumstances.
It seems to me that the clear wording of the standard
would make it applicable to a deactivated circuit. If the
circuit is abandoned, as I understand it, it should be
,removed, otherwise the standard does apply. I can appreciate that that may appear to be a strict interpretation-perhaps it mighi: even be described as technical. However,
I would note that we are here dealing with a number of

2168

instances in which electrical boxes have been removed and
not replac.ed. Th.ere is, therefore, considerable reason to
beiieve that had this circuit been reactivated, it would
have been without the cover box. Thus, it is not as technical as it may seem.
I do find, therefore, under those circumstances, that
that standard is applicable, even to a circuit that is
temporarily out of use. The evidence is, and there is no
dispute, that the .cover plate or cover plates were missing.
And I find that to be a violation as charged of 30 CFR
56.12-32.
I need not repeat here my finding on all those criteria
generally applicable. I will mention only those having to
do with gravity and having to do with negligence. As to
gravity, it is clear, as I found, that the circuit was inactive, that there was no hazard. Accordingly, I find this to
be nonserious.
As to negligence, I find that, in general, it was
either known or should have been known that this cover was
missing. However, I incorporate my previous findings,
which include certain mitigating factors as far as negligence is concerned.
In light of all those circumstances, I don't believe
that the full penalty requested by the Assessment Office or
that requested by counsel is merited. The fact that there
was no likelihood of injury is a direct factor in this
instance, and I will fine the nominal penalty of $10 for
this violation.
(Tr. 139-142).
The above bench decision with reference to citations 212896,
212898, 212899, 212900, 212907, 212909 and 212911 is hereby
AFFIRMED.
Citation Nos. 212897 and 212912, issued July 11, 1978
The following is the bench decision on these citations found at pages
183-189 of the transcript.
The cit.ations here being considered are Nos. 212897 and
212912.
,
In the first such citation, the inspector charged:
"Mandatory standard 56.4-11 was not being complied with in
that the abandoned electrical wiring in the oil storage
shed was not removed." He charged a violation of mandatory
standard 56.4-11.

2169

In Citation No. 212912, the inspector charged: "Mandatory standard 56.4-11 was not being complied with in that
the abandoned electrical wiring was not removed from the hawk
shed."
The standard so referred to reads as follows: "Abandoned electrical circuits shall be de-energized and isolated
so that they cannot become energized inadvertently."
The inspector, as to both of these citations, testified
in effect, at least to his view, that these were abandoned
electrical circuits. Furthermore, there appears to be no
dispute that the circuits in question in both of the citations were deenergized.
The inspector further testified that in his view, the
circuits should have been completely removed to be considered
as isolated. There is testimony, and I don't believe it is
disputed, that in both instances there was a separation
between what you might call the incoming energized wires and
the circuits that are in question. In one instance it is
not clear whether energy was coming into that particular
building or not. And in the other instance--that is, 897-it is clear that there were live wires in the building.
In the case of Citation No. 212912--that is the circuit
in the hawk shed--the evidence is that it was, subsequent
to this citation, activated and put in service. The initial
question, therefore, is whether, in that instance, that was
an abandoned circuit. It is evident, I think, that whether
or not a circuit is abandoned would have to be judged on the
circumstances of a case involving, I suppose, circumstances
like the length of time it had been not used and other circumstances which would indicate the likelihood it would
ever be used. We have few, if any, such circumstances as
shown here except the time it had [been out of use which was],
as I understand it, or at least counsel argued--for something
like 6 months. The fact of the matter is that it was not
ultimately abandoned, because it was restored to use.
It would be my conclusion as to that citation that there
is just not a sufficient preponderance of the evidence to
show the abandonment at the time the citation was made. In
fact, I would think that the evidence would tend to show to
the contrary, that it was not abandoned.
Accordingly, as to Citation No. 212912, I find there was
no violation, and that citation should be vacated, and the
petition dismissed as to that citation.

2170

Citation No. 212897 is in a different category. There
is no evidence that it was restored to use. I don't recall
there being any real dispute that this, in fact, was an
abandoned circuit, and I will so find.
It was deenergized. The sole question is then, whether
in these kind of circumstances, with the separations
involved, and considering that it had not been removed, was
it, in fact, isolated?
I suppose I would have to agree with counsel for MSHA
that the circumstances would surely vary as to whether or not
a particular abandoned circuit was, in fact, isolated or not
isolated. The situation that he mentioned of wires actually
crossing each other would not strike one as isolation, even
though they might be separated by some insulation. In this
case, there was a much greater gap. The live circuit was
separated from the deenergized and abandoned circuit by about
a foot or foot and a half of space. Now, the energized circuit was in a conduit, and as I understood the testimony,
which was not disputed, covered by some sort of a plate.
Preliminarily, I would find--and this is subject to
reconsideration if cases are found to the contrary--but I
would find that the isolation required is not necessarily
removal. I would concede that in perhaps some cases
removal would be the only way to complete the isolation.
But the question is whether that was required in this
instance. I further note that the standard, itself, does
not absolutely require removal, nor should it.
It seems to me that the operator in this instance had,
at least in a certain sense, isolated--that is, separated-quite clearly the energized from the abandoned circuit.
The question is, had it been isolated sufficiently to
satisfy this particular standard? I don't think the showing here is.adequate to show, by a preponderance of the evidence, that it had not been so isolated sufficiently. In
other words, the two circuits were clearly separated. It
would, in all probability, take an electrician to rewire-and the evidence supports that--the particular circuitry.
The circuitry in this instance was, according to the
testimony--not hidden or concealed. It is difficult for me
to understand how, at least in the kind of circumstances,
MSHA could reasonably justify that this could be inadver.tently energized. My ultimate or general conclusion would
be that if MSHA would require a greater isolation than was
employed in this instance, that the regulations would have
to be made clearer.

2171

Accordingly, in light of that, I find also that Citation
No. 212897 was not proved, and I therefore vacate that citation and dismiss the petition as to it.
As I stated, however, I make that decision subject to a
reconsideration if there is a body of law holding to the
effect that, in general, isolation means a complete removal.

If I am asked to reconsider this, it should be brought
to my attention as q~ickly as possible, and before the
transcript is finished and received.
That completes my decision on these two citations.
The above bench decision is hereby AFFIRMED.
Citation No. 212901, issued July 11, 1978
The following is the bench decision on the above citation found at
pages 199-201 of the transcript.
This is Citation No. 212901.
The inspector found the condition or practice as follows: "Mandatory standard 56.9-11 was not being complied
with in that the P & H crane had cracked windows." And
the mandatory standard cited reads as follows: "Cab
windows shall be of safety glass or equivalent, in good
condition, and shall be kept clean."
The evidence received, which has not been disputed,
shows that the window in the crane was shattered. That,
therefore, is a violation of this standard, and I so find.
In other words, I find a violation of 30 CFR 56.9-11.
The finding as to the general criteria has already been
made.
I have limited this to findings on criteria and gravity,
and what degree. First, the gravity.
The in~pector testified that this could affect a miner
or the operator of the machine in two ways. He could be cut
from broken glass. Also, it could affect his visibility.
It seems to me that in the circumstances, and based on the
.testimony, this is a serious violation. On "negligence,"
the inspector testified that, in his view, the operator
should have been aware of the condition. This is somewhat
inconsistent with his statement made on his report at the

2172

time of the citing of the citation, in which he stated that
it could not have been known or predicted. The inspector,
as previously noted, has explained this or attempted to
explain this difference or inconsistency.
It seems to me that, in general, the fact of the
shattered glass is readily noticeable, and should be
observed or made known by someone. In this instance,
the inspector did not know how long the glass had been
shattered. There is the possibility that this may have
happened just before it was observed and had not been
reported, although there is no evidence to that effect.
But considering all the circumstances, and also taking
into account the good faith and rapid abatement, it would
be my belief that the sum assessed by the Assessment Off ice
would be appropriate, and I hereby assess a fine of that
amount, namely, $26.
That ends my decision on this citation.
The above bench decision is hereby AFFIRMED.
Citation No. 212902, issued July 11, 1978
The following is the bench decision on the above citation found at
pages 245-249 of the transcript.
This concerns Citation No. 212902, wherein the inspector
testified that he found a condition or practice as follows:
"Mandatory standard 56.12-68 was not being complied with in
that the transformer enclosure was not locked."
The standard so referred to reads as follows: "Transformer enclosure shall be kept locked against unauthorized
entry."
The first consideration is whether or not a violation
occurred. The testimony received indicates that there was
a large overall enclosure, and as I understand it, it was
separated into two parts by a fence. On one side, which
is owned and operated and maintained by the power utility
company, there was what might be described as a transformer. I don't think that it is really disputed. On the
other side, which is operated and maintained by the company,
there is other equipment, and this has been generally
-Oescribed as a cutoff switch. The inspector did not go into
the enclosure. He did not feel it was safe to do so and so
he did not testify as to what precise equipment was on either
side. That information comes from the testimony of
Mr. Partridge, a witness for the operator.

2173

The testimony further shows, and there is no dispute,
that the utility side of the enclosure was locked, and on
the company side of this fence or outside enclosure, the
lock was not secured. In other words, it was open to
entry. However, the equipment within that company side,
according to the testimony, was in a locked container or
separate enclosure.
I suppose the issue becomes perhaps somewhat technical
at this point. I think that the argmnent of the representative of the operator here is ingenious, in a way, although
I would say that I could not accept that, in my view. This
general enclosure was a transformer enclosure within the
meaning of this Act. It is true that there was this separation, but I don't believe, and I so find, that that keeps it
from being an enclosure as defined in or within the meaning
of the regulation.
There is some testimony that there would be no danger
in going into that enclosure on the company side. However,
that testimony came from Mr. Partridge, who is not an electrician. I have to believe that that entire apparatus was
enclosed for a purpose, and that was to keep people out
from possible danger, and of course, in addition to that,
to the general security of the area.
I think it is an integrated whole. I don't see how you
could separate the elements of this whole in this kind of a
situation. There has to be some connecting link. I don't
think the evidence is clear as to what the dangers might or
might not be on that connecting link, should there be an
unauthorized entry. But even so, as counsel for MSHA has
stated, the general danger around such an installation is
so great that it would seem to me that it would be flirting with possible injury to construe this regulation so
narrowly that it would not cover such an enclosure as a
transformer enclosure.
In other words, to be more specific, I would interpret
it as the transformer and all appurtenances thereto, as
covered by this regulation. Since it was not locked, it
did violate the standard, and I so find.
I find here that the failure to keep this enclosure
locked violates 30 CFR 56.12-68.
There are only two criteria I have to make findings on,
the others having already been made heretofore. The first
is the gravity. I believe it is very serious, and I so
find, because of the danger of electrocution.

2174

So far as negligence is concerned, it is a condition
which I believe the operator knew or should have known in
such enclosures. There would seem to me to be very few
excuses for it remaining unlocked. Accordingly~ I find that
this was more than ordinary negligence on the part of the
operator.
I should add, as far as the negligence is concerned,
there was no evidence put in as to why this particular
enclosure remained unlocked, or any information which
might tend to mitigate the negligence.
In all those circumstances, I would not assess as high
a penalty as the Government counsel has asked. I again
consider the operator's good faith and rapid abatement in
this matter. I will assess a penalty of $100 for this
violation.
The above bench decision is hereby AFFIRMED.
Citation Nos. 212905, 212910, issued July 11, 1978, and Citation No. 212913,
issued July 13, 1978
Citation No. 212905 alleged a violation of 30 CFR 56.12-2 which states
that electrical equipment and circuits shall be provided with switches or
other controls. Such switches or controls shall be of approved design and
construction ~nd shall be properly installed. The parties agreed to settle
this case for the amount originally assessed, $24. I hereby approve the settlement.
Citation No. 212910 alleged a violation of 30 CFR 56.11-2 which states
that 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. The parties
agreed to settle this case for $24, the amount originally assessed. I hereby
approve the settlement.
Citation No. 212913 alleged a violation of 30 CFR 56.4-23 which states
that firefighting equipment which is provided on the mine property shall be
strategically located, readily accessible, plainly marked, properiy maintained, and inspected periodically. Records shall be kept of such inspections. The parties agreed to settle this case for $26, the amount originally assessed. I hereby approve the settlement.
·I hereby REAFFIRM my approval from the bench of these settlements.
Docket No. WILK 79-70-PM
Citation No. 212914, issued July 13, 1978
The following is the bench decision on this citation found at pages
264-266 of the transcript.

2175

This is Citation No. 212914.
The inspector cited, as the condition or practice, the·
following: "Mandatory standard 56.14-1 was not being complied with in that the guard for the flour screw V-belt drive
was not guarded completely."
The inspector cited 56.14-1, which reads as follows:
"Gears, sprockets, chains, drive, head, tail and take-up
pulleys, fly wheels, couplings, shafts, saw blades, fan
inlets, and similar exposed moving machine parts which may
be contacted by persons and which ~ay cause injury to
persons shall be guarded."
As I previously indicated, the only evidence received
is the testimony of the inspector, as well as the documents and that indicates that a part of the V-belt on this
flour screw drive--V-belt drive--that is the motor end of
the drive, was not guarded. Clearly, it seems to me the
standard covers that. There was an exposure of moving
parts, which, if contacted by persons, could cause injury.

Accordingly, I find there was a violation of mandatory
standard 30 CFR 56.14-1, as charged.
These are consolidated dockets. I have already made
the findings as to all of the statutory criteria except for
gravity and for negligence.
On gravity, I agree with counsel for MSHA that this is
a serious type of violation, and r·so find, that it is serious, because an operator or any miner or person near the
machine may become entangled, either through his clothing or
his person, and become injured seriously. The inspector testified that the operator should have been aware of the violation, because a complete inspection had been made previously.
I do note the comments and contentions of Mr. Blodgett, that
the operator did have some question under some circumstances
about the parts of the machines to be covered. And he does-and he also emphasized the fact that this V-belt was partly
covered. However, on the basis of the evidence that has been
received in this record, it seems clear to me that it should
have been covered, and I find no ambiguity, really, in--or
any question, really, about whether or not that end should
have been covered. And under the circumstances, the operator
should have known about it, and I find, therefore, ordinary
negligence.

2176

I take into account those factors of mitigation
applicable that I previously mentioned. I believe that the
penalty assessed by the assessment officer, which was $38,
is appropriate for this violation, and I will make the same
assessment.
That completes the decision on this citation.
The above bench decision is hereby AFFIRMED.
Citation No. 212915, issued July 13, 1978
The following is the bench decision on the above citation found at pages
320-323 of the transcript.
This is Citation No. 212915. The inspector cited as the
condition or practice the following: "Mandatory standard
56.5-3 was not being complied with in that the loose material
on the quarry face was not scaled after blast."
I have to make a correction on that. As I read the
inspector's condition or practice statement, it starts,
"Mandatory standard 56.5-5." The inspector has testified
that that is not a 5, and should read "56.3-5."
Now:, then, that particular standard reads: "Men shall
not work near or under dangerous banks. Overhanging banks
shall be taken down immediately and other unsafe ground
conditions shall be corrected promptly, or the area shall
be barricaded and posted." That's the end of the quotation.
The first question is the fact of the violation. The
evidence that has been received on this was described by
Mr. Kramer as somewhat confusing, and I will agree with that.
I think it is confusing, and in some respects contradictory
and difficult to follow. However, it seems to me that
there is no doubt that on this quarry face there was, at
some point, loose material, and that was recognized by the
operator. The evidence shows, by the testimony, as well as
in doc\UUentary form, that a backhoe on the 12th did do some
scaling work. The inspector also testified that he did see
a backhoe on the 12th.
Furthermore, as I understand the inspector, there was a
backhoe on ~he 13th, when he wrote his citation. The citation was written on the 13th at 9:30, and it was abated on
the 13th at 1500 hours, which would mean 3 o'clock. In
order for that to be done, it was necessary to have heavy
.. equipment on the face. I have to deduce from the circumstances or imply from the circumstances that the equipment
had already been ordered and was there. In fact, the
inspector did testify that when he observed the condition,
the operator was in the process of correcting the condition.

2177

I should note, or I should have noted previously, that
there is no question concerning the part of the standard
which would require, in the alternative, that areas shall
be barricaded and posted. The inspector made clear that
was not applicable, because no one could get near, in the
circmnstances, and this apparently would have been an
unnecessary action.
The only issue, therefore, is whether the correction
was promptly done.
The only questions at all that I can see, in considering the question of promptness, was the fact that some day
or so had elapsed, which is the point made by counsel for
the Government. In the circumstances, it does not seem to
me that that little time span is that significant. The
testimony and the evidence, in general, strikes me as indicating that the operator was doing all that it could reasonably be expected to, in the circumstances, and was in
the process of correcting this loose material on the
quarry face.
In light of those circumstances, I conclude that the
Petitioner has not carried its burden in this particular
instance, and, accordingly, I would vacate this citation
and dismiss the petition as to Citation No. 212915.
The above bench decision is hereby AFFIRMED.
A stnnmary of the dispositions in this case follows:
Citation No.

Action Taken or Assessment

212903
212894
212895
212904
212906
212908
212896
212898
212899
212900
212907
212909
212911
212897
212912
212901
212902
212905

withdrawn
dismissed with prejudice
dismissed with prejudice
dismissed with prejudice
dismissed with prejudice
dismissed with prejudice
$ 10

$ 25
$ 20
$ 20
$ 35
$ 25
$ 10
vacated
vacated
$ 26
$100
$ 24

2178

212910
212913
212914
212915
Total

$ 24
$ 26
$ 38
vacated
$383

ORDER
IT IS ORDERED that Respondent pay the penalties totaling $383 within
thirty (30) days of the date of this decision.

/>~ukikr. I? fl%~_Adu

~-/ Franklin P. Michels

Administrative Law Judge
Distribution:
Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Richard E. Blodgett, Division Manager, Ottawa Silica Co., Connecticut
Division, 154 Lantern Hill Road, Ledyard, CT 06339 (Certified Mail)

2179

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

CLIMAX MOLYBDENUM COMPANY,
Applicant
v.

Application for Review
Docket No. DENV 78-581-M

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

Order No. 333638
August 31, 1978
Respondent

Climax Mine

DECISION
Appearances:

William F. Schoeberlein, Esq., Charles w. Newcom, Esq.,
Dawson, Nagel, Sherman & Howard, Denver, Colorado; and
w. Michael Hackett, Esq., and James F. Engelking, Esq.,
Climax Molybdenum Company, Golden, Colorado, for the
Applicant;
Stephen P. Kramer, Esq., Office of the Solicitor, U.S.
Department of Labor, for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On September 29, 1978, Climax Molybdenum Company (Climax) filed an
application for review pursuant to section 107(e)(l) 1/ of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 817(e)(l) (1978) (1977 Mine Act).
1/

Section 107(e)(l) provides:
"Any operator notified of an order under this section or any representative of miners notified of the issuance, modification, or termination of
such an order may apply to the Commission within 30 days of such notification for reinstatement, modification or vacation of such order. The
Commission shall forthwith afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard
to subsection (a)(3) of such section) and thereafter shall issue an order,
based upon findings of fact, vacating, affirming, modifying, or terminating
the Secretary's order. The Commission and the courts may not grant temporary relief from the issuance of any order under subsection (a)."

2180

The application seeks review of an imminent danger withdrawal order issued
by a Federal mine inspector under section 107(a) 2/ of the Act. The application for 'review states as follows:
COMES NOW Climax Molybdenum Company, a division of AMAX
Inc. (hereafter "Climax"), by and through its attorneys, pursuant to Section 107(e) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 817(e), and hereby makes application
for review of Order Number 333638, issued on August 31, 1978,
a copy of which is attached hereto. Climax respectfully
requests that a hearing be held in Denver, Colorado. At that
hearing, Climax intends to contest the merits of the abovereferenced order. Climax respectfully requests that said
order be vacated and declared void because there was no
imminent danger in that there was no condition or practice in
existence which could reasonably be expected to cause death
or serious physical harm before such condition or practice
could be abated.
An answer was filed by the Mine Safety and Health Administration (MSHA)
on October 12, 1978. The answer states as follows:

The Secretary of Labor (Secretary) by undersigned cou~sel
admits to the issuance of withdrawal order No. 333638 and
states that it was properly issued pursuant to Section 107(a)
of the Federal Mine Safety and Health Act of 1977.
The Secretary also denies all other allegations made by
the applicant not herein specifically admitted to be true.
Wherefore, the Secretary requests that the relief
requested by climax be denied and that withdrawal order
no. 333638 be affirmed.

---

Certificates of service attached to both pleadings indicated that
service had been made upon Local No. 1823, International Brotherhood ,of

:?:.,/ Section 107(a) provides:
"If, upon any inspection or investigat·ion of a coal or other mine which
is subject to this Act, an authorized representative of the Secretary finds
that an imminent danger exists, such representative shall determine the
extent of the area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause all persons,
except those referred to in section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized representative of
the Secretary determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer exist. The issuance
of an order under this subsection shall not preclude the issuance of a
citation under section 104 or the proposing of a penalty under section 110."

2181

/

Electrical Workers and Local No. 2-24410, Oil Chemical and Atomic Workers
International· Union. No answer was filed by either organization.
Orders were issued on November 7, 1978, and November 20, 1978,
granting Climax's motions requesting extensions of time for the commencement of discovery.
Various notices of hearing were issued as well as an order for continuance pursuant to a motion by the Applicant. The hearings were conducted
between November 28, 1978, and November 29, 1978, and between January 30,
1979, and February 1, 1979, in Denver, Colorado. '}_/ Representatives of
Climax and MSHA were present and participated. No persons acted as representatives of the miners at the hearing. !!:./
At the conclusion of the hearing on February 1, 1979, a schedule for
the submission of posthearing briefs was agreed upon. However, difficulties
experienced by counsel necessitated a revision of this schedule. MSHA and
Climax submitted their posthearing briefs on March 23, 1979, and April 2,
1979, respectively. On April 6, 1979, Climax submitted an errata correcting
certain typographical errors in its posthearing brief. Climax submitted its
reply brief on April 16, 1979. MSHA did not submit a reply brief.
II.

Issue

The issue presented is whether the imminent danger order of withdrawal was properly issued under section 107(a) of the Act.
Did the conditions which existed as to the starter leg wire to the
slusher at 615-14 while the slusher was energized in the Climax Mine at about
12:42 p.m., on August 31, 1978, constitute an "imminent danger."
3/ The transcript consists of two parts. Part I records the proceedings of
November 28 and November 29, 1978, while Part II records the proceedings of
January 30, 31, and February 1, 1979. Part I and Part II are not consecutively numbered. Accordingly, references to the transcript in this decision
will make reference to both the page on which the cited information is contained and the part of the transcript containing that page. For example, a
citation to page 308 of Part I of the transcript will be made as follows:
(Tr. I at 308). A series of references to the transcript will be made as
follows: (Tr. I at 51, 79, 97-102, 311-319; Tr. II at 63, 87, 108-115).
4/ Mr. Edward Farley, president of Local No. 2-24410, Oil, Chemical and
.Atomic Workers' International Union was present at the hearing on
November 28, 1978. Mr. John L. Reddington, a member of Local No. 1823,
International Brotherhood of Electrical Workers was present at the hearing
on January 30, 1979. Aside from Mr. Reddington's status as a witness,
both men acted as union observers during the hearing. They did not attend
as advocates for their respective unions (Tr. I, 4-6; Tr. II 2-5).

2182

III.

Evidence Contained in the Record
A.

Stipulation

During the course of the hearing, the parties stipulated that in order
for a slusher machine to be operable, it would have to be bolted into the
rock as well as sitting in a concrete pad (Tr. II at 114).
B.

Witnesses

MSHA called as its witnesses Dennis Martinez, an employee of Climax;
James Enderby and Frederick Joseph Freilino, MSHA inspectors.
Climax called as its witnesses Walter Joseph Florence, Jr., an
industrial hygiene technician at the Climax Mine; James S. Keith, Climax's
director of health and safety; George E. Pupera, electrical superintendent
at the Climax Mine; John Reddington, an electrician on the 600 level of the
Climax Mine; and Harden Williams, the underground electrical foreman at the
Climax Mine.

c.

Exhibits

1.

MSHA introduced the following exhibits into evidence:

M-1 is a copy of Order No. 333638, issued by inspector James Enderby
on August 31, 1978, pursuant to section 107(a) of the 1977 Mine Act.
M-2 is a modification of M-1.
M-3 is a map of the 600 level of the Climax Mine.
M-4 is a sketch, prepared by an MSHA artist, of the area around the
615-14 slusher as it appeared on August 31, 1978.
M-5 is a cross-sectional sketch of the 615-14 slusher dash.
M-10 is a drawing produced during the hearing by witness Dennis
Martinez.
M-10-A is Mr. Martinez' redrawing of M-10.
M-11 contains copies of notes written by witness Walter Joseph
Florence on August 31, 1978.
M-12 is a drawing of the electrical system drawn during the hearing
by witness Frederick Joseph Freilin-0.
M-13 is a photograph taken by Inspector Enderby on December 13, 1978.
M-14 is a photograph taken by Inspector Enderby on December 13, 1978.

2183

M-15 is a photograph taken by Inspector Enderby on December 13, 1978.
M-16 is a photograph taken by Inspector Enderby on December 13, 1978.
M-17 is a photograph taken by Inspector Enderby on December 13, 1978.
M-18 is a copy of an extract from the "American National Standard
Guide for AC Motor Protection," ANSI/IEEE C37.96-1976.
M-19 is a copy of an extract from Title 30 of the Code of Federal
Regulations.
M-20 is a copy of an extract from the IEEE "Recommended Practice for
Grounding of Industrial and Commercial Power Systems," ANSI Cll4.l-1973/IEEE
Standard 142-1972, also called the "Green Book."
M-21 is a copy of the front page of the IEEE "Guide for Safety in
Substation Grounding," IEEE Standard 80-1976.
M-22 is a copy of an extract from the IEEE "Recommended Practice for
Protection and Coordination of Industrial and Commercial Power Systems,"
IEEE Standard 242-1975, also called the "Buff Book."
M-23 is a copy of an extract from the IEEE "Recommended Practice for
Electric Power Distribution for Industrial Plants," IEEE Standard 141-1976,
also called the "Red Book."
M-24 is a copy of an extract from the "American Electrician's Handbook,"
9th edition.
M-25 is a copy of an extract from "Industrial Power Systems Handbook,"
[D. Beeman, editor] (McGraw-Hill Book Company, Inc., 1955).
M-26 is a copy of the front page from the "Electrical Protection
Handbook."
M-27 is a copy of a page from a book published by the Bureau of Mines,
U.S. Department of the Interior, dated June 30, 1972, with reference to
metal and nonmetal mines.
M-28 is a copy of a memorandum dated March 11, 1976, from the Assistant
Administrator for Metal and Nonmetal Mine Health and Safety of the Mining
Enforcement and Safety Administration, U.S. Department of the Interior, to
district and subdistrict managers, metal and nonmetal mine safety and health.
M-29 is a copy of an extract from the "National Electrical Code"
(1978), admitted into evidence for the purpose of illustrating types
of cable jackets and material classification numbers.

2184

M-30 is a chart containing a circuit breaker current characteristic
curve reflecting the maximum/minimum allowable tripping time for circuit
breaker types EB·, EHB and Mark 75 Type HFB.
M-31 is a chart similar to M-30 for the following circuit breaker
types: QUICKLAG Types HQP, QC, QPH, QBH, QCH, and Type BAB Standard Frames;
MARK 75 Frames HBA, QHC and QHP.
M-32 is a copy of an extract from "Inspection and Test of Electrical
Equipment."
M-34 is a copy of an extract from the IEEE "Recommended Practice for
Emergency and Standby Power Systems," IEEE Standard 446-1974, also called
the "Orange Book."
2.

Climax introduced the following exhibits into evidence:

0-1 is a copy of Inspector Enderby's deposition taken on November 21,
1978.
0-1-A is a copy of the cover letter that accompanied 0-1.
0-2 is a manufacturer's photograph of a slusher machine similar to
the machine that was in 615-14.
0-2-A

is a photocopy of 0-2.

0-2-B is a photocopy of 0-2.
0-3 is a nomenclature chart for ISO-horsepower slushers.
0-4 is a section of cable containing the defect cited by Inspector
Enderby on August 31, 1978.
0-5 is a section of cable.
0-6 is a three-page reproduction from Inspector Enderby's notes.
0-7 is a brochure.
0-8 is a brochure.
0-9 is a schematic drawing showing the electrical key to a slusher
installation from a main substation.
0-11 is a copy of Article 90 of the 1978 version of the "National
Electrical Code."
0-12 is a copy of the Applicant's requests for admissions, production
of documents and interrogatories.

2185

0-13 is a copy of MSHA's response to 0-12.
0-14-A is a copy of an extract from the IEEE "Recommended Practice for
Protection and Coordination of Industrial and Commercial Power Systems,"
IEEE Standard 242-1975.
0-14-B is a copy of an extract from the IEEE "Recommended Practice for
Grounding of Industrial and Commercial Power Systems," ANSI Cll4~1-1973/IEEE
Standard 142-1972.
D.

Posthearing Receipt of Exhibits into Evidence

On February 27, 1979, Climax filed a motion with respect to the submission of additional documents. This motion states the following:
COMES NOW Climax Molybdenum Company, a division of AMAX
Inc. (hereinafter "Climax"), by and through its attorneys,
pursuant to the Interim Procedural Rules of the Fedderal Mine
Safety and Health Review Commission, 29 C.F.R. §2700.13, and
moves for the admission of Exhibits 0-14(A) and 0-14(B).
Climax further states that it has no exhibits to be introduced as 0-10 in connection with the taking of photographs by
inspectors.
In support thereof, Climax would state as follows:
1. Although Counsel for Climax has yet to receive
Respondent's response to its request for production of documents and interrogatories, Climax understands from conversations with counsel for Respondent that no documents dealing
with the issue of taking of photographs are in existence.
Accordingly, no documents will be proposed for admission
under Exhibit 0-10.
2. At the time of the hearing it was agreed that Climax
would have until and including February 27 to submit any
additional documents bearing on issues of the applicability
of the National Electrical Code to underground mines. Additionally, as a part of those exhibits Climax has included as
it was discussed at the hearing, certain pages of those documents which were used in Mr. Freilino's cross-examination.
3. O-l4(A) consists of pages 25 and 233 of the "Buff
Book." Exhibit 0-14(B) consists of pages, 13, 14, 49, 58
and 59 of the "Green Book."
WHEREFORE Climax moves for the introdocution [sic] and
admission of Exhibits 0-14(A) and 0-14(B) for the purpose of
showing the inapplicability of the National Electrical Code

2186

to underground mines and for purposes of placing in the
record pages of publications which were ready in [sic] the
record by Mr. Freilino on his cross-examination.
At the hearing, it was agreed that objections to the admission into
evidence of the above-noted exhibits would be set forth in the posthearing
briefs (Tr. II at 446-457). No objections are set forth in MSHA's posthearing brief.
Accordingly, Climax's motion for the introduction and admission of
Exhibits 0-14-A and 0-14-B for the above-stated purpose is GRANTED, and the
exhibits are hereby RECEIVED in evidence.
Exhibits M-13 through M-17 are photographs of the slusher at 615-14.
These photographs were taken by MSHA inspector James Enderby on December 13,
1978, at a time when he was at the mine lawfully during the course of his
inspection duties. MSHA seeks to have these exhibits received into evidence, while Climax interposes strenuous objections to their admission (Tr.
II at 238, 240, 270-274, 446-457; MSHA's Posthearing Brief at pp. 8-9;
Climax's Posthearing Brief at PP• 22-24).
Climax notes that the issue presented is not whether the photographs
are accurate representations of what the inspector obse~ved at the time
they were taken. Instead, Climax phrases the issue as "whetl;ler photographs
or other evidence obtained after litigation on a citation or order is begun
can properly be.admitted when those photographs are not obtained in compliance with the Discovery Rules" (Climax's Posthearing Brief at p. 22).
In support of its· position, Climax argues:
Climax has no right of access to either interview inspectors
or obtain copies of inspector's notes outside of the context
of the Discovery Rule. MSHA must be required to follow those
rules also and the only suitable means for requiring that is
to exclude from evidence all documents, photographs, or similar materials which are obtained outside the bounds of the
Commission's Discovery Rules. This is not to say that MSHA
inspectors should be prohibited from returning from the scene
of alleged violations after a citation has been issued is
[sic] a part of determining whether abatement has been accomplished. It is to say however that if that matter is in
litigation that any photographs or statements taken by an
inspector after the application for review has been filed or
any documents which are obtained by inspector requests after
litigation has been initiated should not be admitted into
evidence unless those documents are obtained through the
Discovery processes provided for in the Rules. To rule
otherwise would establish an unfair and arbitrary scheme
which cannot be sustained, particularly in view of the
presence of the Discovery Rules. Climax is obligated to

2187

comply with the Commission's Rules and MSHA must comply with
them as well. It would clearly be inappropriate to give
MSHA this unfair advantage in administrative litigation.
No effort was made to comply with the Discovery Rules
in taking the photographse Because litigation was pending
and those rules were not complied with, and further because
in addition Climax was given no opportunity to .have either
a knowledgeable electrician or its attorneys involved in the
taking of the photographs, Exhibits M-14 [sic] through M-17
inclusive should not be admitted into evidence.
(Climax's Posthearing Brief at pp. 23-24).
MSHA's counter-arguments state, in pertinent part, as follows:

*

*

*

*

*

*

*

2. There has been no showing that the Applicant has
been in any way prejudiced by the introduction of these
photographs, which are offered solely as an aid to the court
in perceiving the work area of the mine involved.
3. The talking [sic] of phographs [sic] does not
involve an attempt to question applicant's agents without the
presence of counsel.

*

*

*

*

*

*

5. At the time the photographs were taken, MSHA personnel were present in the mine lawfully during the course
of normal inspection duties.
Climax's objection presents a question of first impression. Climax has
not cited any points and authorities in support of its position so as to
provide the Judge with guidance in addressing this novel question. However,
it does present a meritorious question which can be addressed with reference
to existing law on the use of photographic evidence. Due consideration
must be given to both the conduct complained of and the nature of the evidence and its proffered use in determining whether it is admissible.
Under the Commission's Interim Procedural Rules, in effect at all times
relevant to this proceeding, "[a]ny relevant- evidence may be received at
the discretion of the Judge. The Judge may exclude evidence which he finds
to be unreliable or unduly repetitious." 29 CFR 2700.50 (Interim Rules).
The use of photographic evidence in judicial proceedings is discussed
in McCormick, Handbook of the Law of Evidence, § 214 at 530-531 (2nd ed.,
E. Cleary, 1972), as follows:

2188

The principle upon which photographs are most commonly
admitted into evidence is the same as that underlying the
admission of illustrative drawings, maps and diagrams. Under
this theory~ a photograph is viewed merely as a graphic
portrayal of oral testimony, and becomes admissible only when
a witness has testifie<l that it is a correct and accurate
representation of relevant facts personally observed by the
witness. Accordingly, under this theory, the witness who
lays the foundation need not be the photographer nor need he
know anything of the time, conditions, or mechanisms of the
taking. Instead he need only know about the facts represented or the scene or objects photographed, and once this
knowledge is showu he can say whether the photograph correctly and accurately portrays these facts. Once the photograph is thus verified it is admissible as a graphic portrayal of the verifying witness' testimony into which it is
incorporated by reference. [Footnotes omitted.]
Under the principles cited in the above-quoted passage, a photograph
serves merely as a graphic portrayal of a witness' oral testimony, into
which the photograph is incorporated by reference. Unlike evidence submitted under an exception to the hearsay rule, a photograph is not introduced ordinarily as independent proof of the truth of the matters asserted
therein.
The subject photographs were offered as graphic aids in interpreting
what Inspector Enderby and Mr. Martinez observed on August 31, 1978 (Tr.
II at 239-240). To the extent that they set forth an accurate graphic
portrayal of the conditions observed by the witnesses on August 31, 1978,
they are relevant to the subject matter of this proceeding within the
meaning of 29 CFR 2700.50 (Interim Rules).
There is no indication in the record that Inspector Enderby interrogated
or attempted to interrogate Climax's agents on December 13, 1978, in connection with the subject matter of this proceeding. As the photographs merely
relate back to conditions already observed on August 31, 1978, I am unable
to characterize the circumstances surrounding their taking as an interrogation of the Applicant's agents.
30 CFR 2700.46 of the Commission's Interim Procedural Rules provided
in part that: "For good cause shown, the Judge may order a party to produce
and permit inspection, copying or photographing of designated documents or
objects relevant to the proceeding." MSHA accordingly should have followed
this rule. However, we are now faced with an accomplished fact and a consideration of whether evidence which would be helpful to the ultimate determination of the case should now be received in evidence. It could be argued
tpat MSHA's request for admission of the pictures in evidence is in effect
a motion for ratification of the act of obtaining discovery by photographing
of objects.

2189

It does not appear that the Applicant will be prejudiced by the
admission of the pictures, while on the other hand they are very helpful in
understanding the issues in this case.
Accordingly, the Applicant's objection is OVERRULED and Exhibits M-13
through M-17 are hereby RECEIVED in evidence.
During the course of the hearing, Climax interposed objections to the
admission into evidence of Exhibit Nos. M-18 through M-28. It was agreed
that objections to the receipt of the documents would be argued in the
briefs (Tr. II at 446-457). In addition, it was agreed that MSHA would be
granted until February 20, 1979, to file any additional subparts to those
exhibits, and that MSHA would be granted until such date to file a copy of
parts of the "Orange Book" as Exhibit M-34 (Tr. II at 453-454).
On February 22, 1979, MSHA filed a motion to admit and substitute
exhibits. This motion stated, in part, as follows:
Now comes the Mine Safety and Health Administration,
MSHA, through its undersigned attorneys and files this
motion to:
1.

Admit attached exhibit M-34 (orange book).

2.

Substitute the attached copy of exhibit M-24
for the one submitted at hearing.

3.

Substitute the attached copies of exhibits
M-20, M-22, and M-23 for those submitted at
hearing.

The grounds for this motion are that the record was
expressly left open for the receipt of these documents. In
addition, substitution of exhibit M-24 is necessary in that
the copy submitted at hearing is partially illegible due to
xeroxing.
Please note that although the NEC is not specifically
·mentioned in M-34, the emphasized paragraph references
publications which do reference the NEC.
In its posthearing brief, Climax states, in part, as follows:
Climax has no objection to the admission of exhibit
no. 18 [sic] through M-28, inclusive, and M-34, for the
limited purpose of dealing with the issue of whether the
National Electrical Code is or is not applicable to underground mines. As noted in Part III, Climax maintains that
the Code is not applicable to underground mines. Those

2190

exhibits only reenforce that position. They reference the
Code but never as being applied wholesale, or in pertinent
part here, in underground metal-nonmetal mines.
(Climax's Posthearing Brief at p. 24).
Climax's brief interposes no objection to the. substitution of copies
of Exhibits M-20, M-22, M-23, and M-24.
Accordingly, MSHA's motion to admit and substitute exhibits is GRANTED.
IT IS THEREFORE ORDERED that the copies of Exhibits M-20, M-22, M-23, and
M-24, which were submitted in conjunction with the motion, be, and hereby
are, SUBSTITUTED for the copies of those exhibits marked for identification
during the hearing. IT IS FURTHER ORDERED that Exhibits M-18 through M-28
and Exhibit M-34 be, and hereby are, RECEIVED in evidence.
During the hearing, MSHA reserved its right to object to the receipt
into evidence of Exhibits 0-12 and 0-13. It was agreed that any objections
would be argued in the briefs (Tr. II at 448-452).
In support of its motion to admit these documents into evidence, Climax
states: "With respect to Exhibits 0-13 and 0-14, [sic], those exhibits
should be admitted. It is hornbook law that interrogations [sic] and
answers are validly used for impeachment purposes. 8 Wright & Miller,
Federal Practice & Procedure, Civil, § 2180, p. 573 (1970)" (Climax's Posthearing Brief at p. 24).
MSHA's posthearing brief interposes no objections to the receipt of
these documents in evidence.
Accordingly, IT IS ORDERED that Exhibits 0-12 and 0-13 be, and hereby
are, RECEIVED in evidence.
IV.

Opinion and Findings of Fact
A.

The Applicability of the National Electrical Code to Underground
Metal and Nonmetal Mines

A question is presented as to whether the National Electrical Code
(NEC), portions of which are incorporated by reference into other privatelypublished associated publications (Exhs. M-18, M-20, M-21, M-22, M-23, M-24,
M-25, M-26, M-34, 0-14-A, 0-14-B), sets forth an industry standard for the
grounding of electrical systems in underground areas of metal and nonmetal
mines. MSHA argues that the question should be answered in the affirmative
(MSHA's Posthearing Brief at p. 9), while Climax argues that it should be
answered in the negative (Climax's Posthearing Brief at PP• 20-22; Climax's
Reply Brief at P• 7). For the reasons set forth below, I conclude that the
NEC does not specifically set forth the governing industry standard for the
grounding of electrical systems in the underground areas of metal and
nonmetal mines.

2191

I t should be pointed out that, in view of the foundation for the decision in this case, as set forth later, the determination of this question
has no effect upon the outcome; however, despite this, the issue has been
analyzed.

The resolution of this inquiry requires a two-pronged analysis making
reference to both the appropriate provisions of the Code of Federal Regulations (Code) and the appropriate provisions of the NEC (Exh. 0-11) and
associated works.
According to Inspector Freilino, the NEC requirements for adequate
grounding would have required the starter leg wire to have a third conductor, i._£., a ground conductor (Tr. I at 263-264, 361). This requirement
would have been deemed fulfilled by MSHA by either the presence of a third
wire inside the cable or, alternatively, by the presence of a third wire
somehow attached to the cable (Tr. I at 263-264, 329). The inspector opined
that Exhibit 0-4, a segment of the subject starter leg wire, was not in
compliance because it had only two cables (Tr. I at 263). Specifically, he
testified that Exhibit 0-4, by itself, could not properly ground the equipment (Tr. I at 327). The inspector further testified that his opinion was
based on the grounding requirements set forth in sections 1250-42 and
1250-59 of the NEC (Tr. I at 285-287).
The scope of the NEC is set forth in Article 90 of that publication
which states, in pertinent part, as follows:
90-2.

Scope.
(a)

Covered.

This Code covers:

(1) Electric conductors and equipment ip.stalled
within or on public and private buildings or other structures,
including mobile homes and recreational vehicles; and other
premises such as yards, carnival, parking and other lots, and
industrial substations.
(2) Conductors that connect the installations to
a supply of electricity.
(3)
(b)

Other outside conductors on the premises.

Not Covered.

This Code does not cover:

(1) Installations in ships, watercraft, railway
rolling stock, aircraft, or automotive vehicles other than
mobile homes and recreational vehicles.
(2)

Installations underground in mines.

2192

(3) Installations of railways for generation,
transformation, transmission, or distribution of power used
exclusively for operation of rolling stock or installations
used exclusively for signaling and communicatio.n purposes.
(4) Installations of communication equipment
under the exclusive control of communication utilities,
located outdoors or in building spaces used exclusively
for such installations.
(5) Installations under the exclusive control of
electric utilities for the purpose of communication, or
metering; or for the generation, control, transformation,
transmission, and distribution of electric energy located in
buildings used exclusively by utilities for such purposes or
located outdoors on· property owned or leased by the utility
or on public highways, streets, roads, etc., or outdoors by
established rights on private property.
(Exh. 0-11).
As revealed in the above-quoted passage, section 90-2(b)(2) excludes
installations in underground mines from the NEC's coverage. However, in
spite of this disclaimer, MSHA electrical inspector Frederick Freilino testified as an expert that the NEC grounding provisions were applicable to
underground metal and nonmetal mines (Tr. I at 276-277). Also, he referred
to other publications as incorporating by reference select provisions of
the NEC (~·.[•, Exhs. M-18, M-20, M-21, M-22, M-23, M-24, M-26, M-34, 0-14-A,
0-14-B; Tr. I at 276-282), which he described as applicable to underground
mines because they apply to "all power distribution systems regardless of
their use" (Tr. I at 281).
I am unable to accept the inspector's opinion in this matter because
his testimony differs from both the tenor of the exhibits upon which he
relied and the very language of the NEC. None of these exhibits sustain the
assertion that the NEC is specifically applicabl~ to underground mines.
Those documents incorporate select NEC provisions only in the context of
commercial and industrial applications that are well within the scope of
section 90-2(a) of the NEC (Exh. 0-11). Accordingly, it cannot be found
that the NEC and the associated exhibits establish the standards for adequate electrical grounding systems for the underground metal and nonmetal
mining industry.
A review of the appropriate provisions of the Code of Federal Regulations (Code) fails to disclose a wholesale incorporation by reference of
the NEC. Part 57 of Title 30 of the Code sets forth the health and safety
standards for underground metal and nonmetal mines. Electrical matters are
addressed in 30 CFR 57.12. References to the NEC can be found at a few
places therein. These sections are applicable to both the underground and
surface installations of underground mines. 30 CFR 57.1. Neither section
specifically mentions the NEC in connection with grounding.

2193

By way of illustration, Inspector Freilino testified that if given the
opportunity to observe a slusher installation at the Climax Mine with a
starter leg wire containing two conductor cables such as Exhibit 0-4, he
would consider the operator in violation of 30 CFR 57.12-25 5/ (Tr. I at
270-271). This section of the Code embodies a mandatory standard requiring
all metal enclosing or encasing electrical circuits, except as relates to
battery-operated equipment, to be grounded or provided with equivalent protection. The inspector described the allegedly applicable NEC requirements
(Tr. I at 286-287), and opined that the failure to adhere to those requirements renders a grounding system inadequate within the meaning of 30 CFR
57.12-25 (Tr. I at 270-289).
At this point, it is important to bear in mind the limited purpose for
which the inspector's testimony has significance. It is not being used to
determine whether the condition or practice cited in the imminent danger
order of withdrawal constitutes a violation of 30 CFR 57.12-25. Whether the
cited condition or practice fits the technical definition of a codified
violation is not an issue in a proceeding to review an imminent danger withdrawal order. Freeman Coal Mining Corporation, 2 IBMA 197, 80 I.D. 610,
1973-1974 OSHD par. 16,567 (1973). His testimony merely reflects the opinion
of an expert in the field of electrical matters in underground metal and
nonmetal mines as to which provision of the Code requires adequate grounding
and as to why adequate grounding should be evaluated under that section with
reference to the NEC. Although this determination presents a question of
law, the inspector's opinion gives some guidance as to how experts in his
field view the practical difficulties encountered in determining whether a
given grounding system is adequate.
A review of the various standards codified under 30 CFR 57.12 leads to
the conclusion that those provisions of the NEC addressing the grounding of
electrical systems have not been incorporated into the Code, and hence are
not specifically applicable to underground metal and nonmetal mines. The
fact that portions of the NEC are both mentioned by and incorporated into
certain provisions of 30 CFR 57.12 indicates that the drafters were aware
of the NEC and its various provisions. The fact that their informed judgment led them to include portions of it in certain contexts compels the
conclusion that the failure to incorporate its provisions in other contexts
resulted from a conscious determination that no specific requirements as to
the unmentioned provision were to apply.
Exhibits M-27 and M-28 do not support the proposition that the inspectors have been directed to apply the NEC grounding standards in assessing
the adequacy of grounding systems. Exhibit M-27 makes reference to it only
5/ 30 CFR 57.12-25 provides: "Mandatory. All metal enclosing or encasing
electrical circuits shall be grounded or provided with equivalent protection. This requirement does not apply to battery-operated equipment."

2194

in connection with section 12-1 of Part 57, the Code standard which states
that "[c]ircuits shall be protected against excessive overload by fuses or
circuit breakers of the correct type and capacity."
Exhibit M-28 is a more complex document. Its references to 30 CFR
57.12-20 and 57.12-25 are significant in the instant case. With respect to
30 CFR 57.12-20, it cautions that "[r]eferences for application of insulating mats or platforms should not be deemed an exemption by not conforming
with established rules of the 'National Electrical Code.'" However, its
discussion of 30 CFR 57.12-25 makes no affirmative reference to the NEC, but
merely states that "[a]ll grounding shall conform to accepted electrical
standards and codes."· It is unclear whether this statement reflects an
intent on the administrator's part to apply the NEC or not as relates to
grounding. A permissible interpretation of it would be that all grounding
shall conform to accepted electrical standards and codes applicable to
underground mining. As noted previously, the NEC specifically exempts from
its coverage electrical installations underground in mines. Accordingly,
Exhibit M-28 cannot be construed as specifically requring the application
of the NEC in such case.
Accordingly, for the reasons set forth above, I conclude that the NEC
is not specifically applicable to grounding requirements for installations
underground in metal and nonmetal mines.
B.

The Imminent Danger

MSHA inspector James Enderby visited the Climax Mine at approximately
6:45 a.m. on August 31, 1978, to do asbestos fiber sampling in one of the
slusher dashes on the 600 level of the mine (Tr. I at 81, 107-108). The
inspector proceeded to the 615-1~ slusher dash, arriving there at approximately 8:20 a.m. (Tr. I at 118). Mr. Dennis Martinez, the union representative, Mr. Andy Burkhart, the slusher operator, and Mr. Walter Florence,
Climax's industrial hygiene technician, accompanied him (Tr. I at 118). At
approximately 12:40 p.m., Mr. Martinez observed the slusher's starter leg
wire, a cable running from the starter switch on the rib across to and
between the driveguard and the main part of the slusher. The cable ran
over the driveshafts located between the driveguard and the main part of
the slusher (Tr. I at 45-47; Exhs. M-4, M-10, M-10-A).
According to Mr. Martinez, the cable was touching the motor driveshaft
and was resting on a "lightly rounded" edge of the driveshaft (Tr. I at 47,
50-51, 69). This driveshaft was turning when the motor was in operation
(Tr. I at 51). Mr. Martinez described the cable as having what appeared to
be a cut or groove worn in it. He concluded that this defect had been
caused by the cable being in contact with the rotating driveshaft (Tr. I at
48, 53-54). His observations led him to conclude that the cable was unsafe
because he thought that he could see something white on the cable, which
indicated to him that the insulation was almost ready to wear through
(Tr. I at 54, 69).

2195

Mr. Martinez testified that he first observed the cable when the last
car of the muck train had been approximately half filled by the slusher
(Tr. I at 57-58). He thereupon attempted to attract the inspector's attention (Tr. I at 59-63). However, the high noise level prevented the inspector from immediately understanding what Mr. Martinez' signal related to
(Tr. I at 62-64). Consequently, the slusher was not turned off until the
last car on the muck train had been filled (Tr. I at 63, 147-148).
Immediately after the slusher was switched off, Inspector Enderby
turned around to see what Mr. Martinez wanted (Tr. I at 148-149). The
inspector testified that Mr. Martinez told him that the cable appeared to
have a "hole" in it (Tr. I at 149). The inspector looked between the driveguard and the slusher body from the draw hole side of the slusher, but was
unable to see the worn spot (Tr. I at 149). Mr. Martinez then picked up the
cable, turned it over and laid it atop the driveguard to show the inspector
the worn spot (Tr. I at 149-150). The inspector testified that he got to
within approximately 12 to 15 inches of the subject portion of the cable
and that he thought he saw a bare wire (Tr. I at 150). He described what
he observed as "a cut or worn section with a slightly black spot inside the
filler, which is on the underside of the outer insulation jacket" (Tr. I at
150). The inspector stated that the perceived possibility of electrocution
would have prevented him from placing his hand on the bare spot (Tr. I
at 252). Thereafter, the inspector informed Mr. Florence-that he was going
to issue an order closing the dash until the wire was fixed (Tr. I at 155).
The order was issued at 12:42 p.m. (Exh. M-1). He returned to the area at
approximately 1:32 p.m. and observed the electrician finish wrapping the
outer jacket of the cable with electrical tape (Tr. I at 158-159). The
order was abated at 2 p.m. (Exh. M-1).
The question presented is whether the subject order of withdrawal was
validly issued. The controlling issue is whether the condition cited by
Inspector Enderby constituted an imminent danger within the meaning of
section 107 of the 1977 Mine Act, as that term is defined by section 3(j)
of the Act.
Section 3(j) of the 1977 Mine Act defines an imminent danger as "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."
Both the Interior Board of Mine Operations Appeals (Board) and the
Federal courts had occasion to address the term "imminent danger" in a
series of decisions arising under the Federal Coal Mine Health and Safety
Act of 1969 (1969 Coal Act). In Freeman Coal Mining Company, 2 IBMA 197,
80 I.D. 610, 1973-1974 OSHD par. 16,567 (1973), the Board interpreted it
as follows:
It bears repeating that the statutory definition of the
term "imminent danger" is "the existence of any condition or
practice in a coal mine which could reasonably be expected

2196

to cause death or serious physical harm. before suc.h c()ndition or practice can be abated." The word "reasonablyn
necessarily means that the test of imminence is objective
and that the inspector 1 s subjective opinion need not be
taken at face value. It also suggests that each case must
be decided on its own peculiar facts. The question in every
case is essentially the proximity of the peril to life and
limb. Put another way: would a reasonable man, given a
qualified inspector's education and experience, conclude that
the facts indicate an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to
occur at any moment, but not necessarily immediately? The
uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to
extract coal in the disputed area proceeded, it is at least
just as probable as not that the feared accident or disaster
would occur before elimination of the danger.
This decision was subsequently affirmed by the united States Court of
Appeals for the Seventh Circuit. Freeman Coal Mining Company v. Interior
Board of Mine Operations Appeals, 504 F.2d 741 (7th Cir• 1974).
In Old Ben Coal Corporation v. Interior Board of Mine Operations
Appeals, 523. F.2d 25 (7th Cir. 1975), the Petitioner, Old Ben, argued that
the term "imminent danger" was intended to apply only to situations presenting an actual, immediate danger. The court declined to adopt this interpretation, noting that in Freeman, supra, it had "rejected the contention that
'imminent danger' was intended to apply only to situations involving immediate danger." 523 F.2d at 33.
._ .....

In rejecting the Petitioner's contention that the test for "itm11inent
danger" should be limited to a "reasonable likelihood" of danger, the cou!'t
noted that a similar contention had been considered and rejected by the
United States Court of Appeals for the Fourth Circuit in Eastern Associated
Coal Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277,
278 (4th Cir. 1974), aff 'g Eastern Associated Coal Corporation, 2 IBMA 128,
136, 80 I.D. 400, 1971-1973 OSHD par. 16,187 (1973). The court observed
that Eastern had argued in the Fourth Circuit that a "danger is imminent
only if there is a reasonable likelihood that it will result in inJury
before it can be abated." 523 F.2d at 33. The Old Ben court quoted with
approval the following passage from the Fourth Circuit's opinion:
The Secretary determined, and we think correctly, that
"an imminent danger exists when the condition or practice
observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the
dangerous condition is eliminated." [Emphasis in original.]
Administrative Law Judge Fauver was presented recently with an opportunity to address the subject of itm11inent danger withdrawal orders issued

2197

pursuant to the Federal Mine Safety and Health Act of 1977. Consolidation
Coal Company, Docket No. MORG 78-355 (February 28, 1979). Although the
language of the 1977 Mine Act is the same as the language of the 1969 Coal
Act as relates to the subject of "imminent danger~" the legislative history
of the 1977 Mine Act disavows any intent on the part of Congress that the
Commission adhere to that portion of the Board's requirement in Freeman,
supra, that "it is at least as probable as not that the feared accident or
disaster would occur before elimination of the danger." The Senate
Committee Report states:
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.
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 626 (1978).
Additionally, the legislative history makes it equally clear that the
"imminent danger withdrawal order is designed to afford miners immediate
protection in those situations where a condition or practice in a mine could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated." 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 626 (1978) (emphasis added). The fact that
such orders are intended to provide miners with immediate protection under
the above-described conditions, indicates that the benefit of any doubt
should be resolved in favor of withdrawal. See, District 6, United Mine
Workers of America v. United States Departme~of the Interior Board of Mine
Operations Appeals, 562 F.2d 1260, 1267 (D.C. Cir. 1977).
In a review proceeding involving an imminent danger withdrawal order,
MSHA is under an obligation to go forward with the evidence and make out a
prima facie case. Thereafter, under the rules of procedure in effect when
this proceeding was commenced and at the time of the hearing, the ultimate
burden of proof was placed on the operator to overcome MSHA's case by a
preponderance of the evidence with respect to each element of proof-in
dispute, except as relates to a violation of law. Zeigler Coal Company,
4 IBMA 88, 82 I.D. 111, 1974-1975 OSHD par. 19,478 (1975); Old Ben Coal
Corporation, 523 F.2d 25, 39-40 (7th Cir. 1975). Accordingly, the ultimate
burden of proof with respect to the lack of imminence in the danger was
upon the operator in this review proceeding.
It is my opinion that such rule of law is applicable to the ultimate
determination of this case. However, beyond this, MSHA has not only presented a prima facie case, but it has also preponderated over the evidence
of the Applicant.

2198
\

Exhibit 0-9 is a schematic drawing of the electrical system for a typical slusher at the Climax Mine installed after 1971 or 1972 (Tr. II at 61,
125, 131). Mr. Pupera indicated that the electrical system shown in Exhibit
0-9 was the same as the electrical system on the 615-14 slusher, although
he was not completely certain (Tr. II at 131-132). Since Mr. Williams
testified that the 615-14 slusher was installed in late 1976 or early 1977
(Tr. II at 221), I find that it is more probable than not that they are
the same.
The slusher had a 150-horsepower motor (Tr. I at 262, Exh. 0-9).
Inspector Freilino testified that he believed the slusher installations were
460 or 480, three-phase, 60-cycle AC (Tr. I at 322, 350). 6/ The slusher
motor was provided with electricity through a 2-0 cable containing three
interspersed No. 6 ground wires. These ground wires are connected to the
frame of the slusher and back to the grounding conductors that run through
the drift of the mine. This grounding conductor runs through the drift of
the mine and returns to the substation power source and is connected to the
grounding point of the entire power system (Tr. II at 60, 70-71; Exh. 0-9).
Power was provided from a 480-volt substation located 1,000 feet down the
drift from 615-14 (Tr. II at 63-64). According to Inspector Freilino, these
150-horsepower slusher installations have motor speeds of 900 rpms (Tr. I
at 261-262).
The starter leg wire runs from a switch on the mine wall to the transformer in the switch vault (Exh. M-4, 0-9). This switch operates a coil or
an electric magnet, described as the motor control relay, which supplies
power to the slusher motor (Tr. I at 265, 316). The starter leg wire
carries approximately 120 volts (Tr. II at 208). The control circuit has a
15-amp circuit breaker located in one wire coming from the secondary to the
transformer (Tr. II at 67, 91, 177, 217, Exh. 0-9). There are two 600-volt,
3-amp fuses in the wires to the H-480 volt transformer (Tr. II at 67, 92).
These fuses were in each leg of the wire coming from the phase conductors
on the primary side of the transformer (Tr. II at 67). This transformer
reduces the voltage entering the control circuit from 480 volts to 120 volts
(Exh. 0-9). Grounding is provided by a bare, external No. 4 copper wire
running from the slusher frame back to the switch vault and from the slusher
frame to the _slusher starter switch (Exh. 0-9; Tr. II at 60, 64, 68).

!!._/ The precise voltage of the slusher motor is not clearly revealed by the
record. The best available evidence indicates that its voltage lies between
440 and 480 volts (Tr. I at 322; Tr. II at 66-67, 92, Exh. 0-9). Exhibit
0-9 reveals that power was transmitted from the 480 volt substation to the
slusher motor along cables denominated at one point as 440 volt power cables.
Presumably, this means that the slusher motor operates on 440 volts, although
~either Exhibit 0-9 nor the testimony of the witnesses reveal the signicance,
if any, arising from connecting the slusher to the 480 volt substation via a
440 volt cable. In view of the other evidence contained in the record, this
ambiguity does not affect the ultimate disposition of this case.

2199

The starter leg wire (red line on Exhibit 0-9) was a No. 12, twoconductor, CV-type, SO cord (Tr. II at 217, 373). It was described as being
a 20-amp cable (Tr. II at 217). Mr. Williams testified that the outer
jacket was composed of neophrene and that he believed the inner insulation
was composed of a butyl-type rubber (Tr. II at 217). Mr. Pupera testified
that the cable's inner and outer insulation were flame-retardant (Tr. II
at 105). Mr. Williams stated that since the inner insulation was 600-volt
insulation, it would be three sixty-fourths of an inch thick (Tr. II at
371).

The outer jacket is comprised of considerably stronger material than
the inner insulation (Tr. I at 342). Accordingly, the inner insulation is
damaged more easily than the outer jacket (Tr. II at 119).
Mr. John Reddington, the electrician who abated the condition cited by
Inspector Enderby, inspected the ground connections visually after the order
was issued (Tr. II at 159). He found the ground wires both intact and tight
in the lugs. They were described as tight on both the frame and the toggle
swtich (Tr. II at 157-159). He inspected the No. 4 ground wire and found it
properly attached to the motor frame (Tr. II at 158). The No. 6 ground
wires and the 2-0 cable were properly attached (Tr. II at 158-159).
Mr. Martinez testified that when he first observed the starter leg wire,
it was in contact with a flange located on the motor driveshaft (Tr. II at
295-298, 303-308; Point A on Exh. M-13). The cable was being supported by
the 90-degree edge of the flange (Tr. II at 295-298; Point A on Exh. M-13).
The best available evidence indicates that the flange rotated with the
driveshaft (Tr. I at 50-51; 68; Tr. II at 298, 301-302). The driveshaft
rotated at approximately 875 to 900 rpms (Tr. I at 261-262; Tr. II at
211-212). Mr. Williams testified in behalf of the Applicant that, assuming
the wire was in the position indicated on Exhibit M-13 with the driveshaft
turning, it would have taken the cable (Exh. 0-4) 4 to 6 weeks of continuous
contact with the flange to develop the amount of wear present (Tr. II at
368-369). Similarly, he testified that it would have taken an additional
3 weeks for the cable to wear through the remainder of the inner and outer
insulation and expose a bare conductor (Tr. II at 365-370). Additionally,
he indicated that the presence of oil or lubricants would decrease the rate
of wear (Tr. II at 367-368). According to Mr. Williams, oil does not have
an immediate deteriorating effect on the outer jacket of the so~type cable.
He did not know whether the inner insulation of such cable is oil resistant
(Tr. II at 374-375). Contrary to the position of the Applicant's witnesses,
Mr. Freilino, on behalf of MSHA, was of the opinion that the insulation on
the wire could wear through at any time (Tr. I at 345).
In view of the actual condition of the cut in the wire, the claims of
Applicant's witnesses that the wire would not constantly remain in the same
place on the shaft, and also in view of the requirement of the Applicant that
the slusher operator check the electrical cable, ground wires and insulated
conductors for damage, to report any damage to the electrician, it seems
incredible that the cutting of the wire took place over a long period of
time without detection sooner.

2200

The inspector thought that the inner conductors were bare, and issued
the order of withdrawal in accordance with this belief (Tr. I at 150, 152,
187; Exh. M-1). However, after examining the cable at the hearing, he
admitted that bare conductors were not exposed (Tr. I at 250). The outer
jacket had been worn through and part of the inner insulation had been worn
(Tr. I at 295; Exh. 0-4). Accordingly, the question of imminent danger
must be evaluated with reference to the actual condition of the cable on
August 31, 1978, in determining whether a reasonable man, given a qualified
inspector's education and experience, would objectively estimate that if
normal mining operations in the disputed area continued, the feared accident
or disaster would occur before elimination of the danger. In the instant
case, this requires ari evaluation of both the electrocution hazard and the
fire hazard.
The testimony of three expert witnesses, Inspector Freilino, Mr. Pupera,
and Mr. Williams, provides the most probative evidence of the electrocution
hazard.
The first consideration is the two-part grounding system described
above. The first part of the system entails the bare No. 4 copper wire used
to ground the 120-volt control circuit, while the second part refers to the
three No. 6 wires used to ground the slusher. With respect to the former,
Inspector Freilino characterized it as inadequate because it failed to comply with the.NEC requirements. Therefore, in assessing his answers to
various hypothetical questions in which he was asked to assume that the
grounding on the control circuit was either inadequate or adequate, it must
be borne in mind that the inspector defines the term "adequate," at the very
least, as a grounding system in compliance with the NEC, while defining an
"inadequate" system as one that is not in compliance with the NEC.
Mr. Pupera, on the other hand, viewed the control circuit grounding system
as adequate. In his opinion, the location of the wire did not create a
problem by way of increasing the impedance to the ground (Tr. II at 69-70).
In this regard, it should be borne in mind that the basic purpose of a
ground wire is to provide the lowest possible impedance for the flow of
fault current (Tr. II at 69-70). If
7/ According to Mr. Pupera, a grounding system is basically for the purpose
of returning current to its power source. There are two types of grounding
systems--an equipment ground and a system ground. Equipment grounding is
installed to protect personnel from shock hazards. This is accomplished by
providing a path of very low resistance in comparison to the human body,
since current will follow the path of least resistance. If the grounding
system is properly set up, electricity will take the path through the
grounding system rather than through the human body because the resistance
within the grounding system will be lower than the resistance of the human
body (Tr. II at 58-59). According to Mr. Pupera, the electrical systems on
the slushers are equipment-grounded and are connected to the system ground
(Tr. II at 59).

2201

With respect to the three No. 6 wires used to ground the slusher, the
record reveals that they were interspersed throughout the 2-0 cable that
provided power to the slusher motor. Assuming that Inspector Freilino
adequately described all of the relevant NEC grounding requirements, then
this system is adequate even under the NEC's allegedly more stringent provisions. Therefore, in assessing his answers to hypothetical questions, it
must be assumed that this portion of the grounding system was viewed as
adequate by the inspector. These factors have been taken into consideration
in assessing the various hypothetical questions addressed to the witnesses.
They are too numerous to repeat. The portions material to the resolution
of this matter have been taken into account in the passages appearing below.
The fact that the inner insulation had not been completely worn through
so as to expose a bare conductor does not preclude the existence of a shock
or fire hazard. One of the key factors is the dielectric strength of the
insulation. Inspector Freilino described the concept of dielectric strength
as "the insulating ability of a material that can be determined through
laboratory test, and it is usually assigned a value of so many volts per
thousandths of an inch" (Tr. II at 398). A fault condition exists whenever
current flows through a circuit in an undirected or unintentional path (Tr.
II at 398). In order "to get into" a fault condition, the dielectric
strength would have to be lower than the voltage passing through the circuit
(Tr. II at 399). Once the dielectric strength is less than the voltage
being carried in the cable, the insulation breakdown is almost instantaneous
(Tr. II at 401-402). The wire need not be bare, but merely redu~ed to the
point where the insulation would be insufficient to restrain the 120 volts
from leaking through to the grounded, object (Tr. II at 398). At this point,
the cable would become, in effect, a bare conductor even though some insulation remained. At this point, a person could receive a shock from touching
the worn area (Tr. II at 402). The same holds true for the fire hazard
(Tr. I at 293-294).
At one point in his testimony, Mr. Pupera testified that no shock
hazard would be present if the insulation had worn off and a bare conductor
made contact with either the slusher motor frame or the driveshaft. He
attributed this to the grounding system on the slusher which would trip
the circuit breaker on the secondary of the control transformer (Tr. II at
90). Mr. Pupera stated that the 15-amp circuit breaker on the 120-volt
starter leg wire would trip in approximately l/120th of a second. This
would occur if the bare conductor made contact with either point as long as
the circuit was solidly grounded to the slusher frame, i.e., in "good contact" with 'the slusher frame (Tr. II at 91, 138-139). Mr:- Pupera stated
that if the circuit breaker failed to trip under the ground fault condition,
pne or both of the 3-amp fuses on the lines to the 480-volt transformer
would blow open and deenergize the circuit (Tr. II at 92).
As for the grounding protection, he testified that if a bare conductor
made contact with one of the two above-mentioned points, the ground would
provide a low impedance path back to the power source lower than the human
body's impedance (Tr. II at 92). Mr. Pupera claimed that no shock hazard
would be present for a person touching the slusher frame (Tr. II at 93).

2202

He further testified that if none of the ground wires were attached to
the slusher motor frame, the operator would not be exposed to a shock hazard
if a bare wire made contact with the frame. He attributed this to the
manner in which the slushers were installed, resulting in a low impedance
in connection with the earth itself. According to Mr. Pupera, the earth
becomes another grounding conductor back to the power source. He even
described this earth connection as far more reliable than the ground wires
(Tr. II at 94). To the best of his recollection, tests of the earth connection in the 615-14 slusher showed an impedance of 2.5 ohms (Tr. II at 94).
He classified this figure as much lower than the human body's resistance
(Tr. II at 98). He felt that the slusher operator's resistance would be
well in the hundreds of thousands of ohms because he is required to wear
rubber gloves and boots (Tr. II at 98).
However, he later admitted that an individual not wearing gloves or
boots could receive a shock if he made contact with a bare wire on the
starter circuit. The extent of the injury sustained would depend upon the
amount of current flowing through the body. He acknowledged that under the
proper conditions, a lethal injury could occur (Tr. II at 139-140). This
would occur if the bare wire was not in contact with the slusher because
there would be no fault current flowing (Tr. II at 140).
A review of the testimony reveals that the amount of current, in terms
of amperes, that can reasonably be expected to pass through the human body
can be calculated with reference to Ohm's Law. According to Mr. William's,
Ohm's Law states that amperage equals voltage divided by resistance (Tr.
II at 235; Climax's Posthearing Brief at p. 14). Inspector Freilino testified as to the relationship between milliamps and physical injury. Muscular
contraction starts at approximately 10 milliamps. Ventricular fibrillation
could occur at 50 to 75 milliamps. The heart stops beating at approximately
100 milliamps (Tr. II at 410). According to the inspector, one would not
reasonably anticipate serious injury below the 10 milliamp range (Tr. II
at 414-415). He testified that prolonged exposeure to 10 milliamps can produce permanent damage to internal organs (Tr. II at 411). The average
resistance of the human body, according to the published standard for the
average resistance hand-to-hand across the chest cavity, is 1,000 ohms (Tr.
II at 412). Accordingly, application of the Ohm's Law formula reveals that
120 volts divided by 1,000 ohms yields .12 amps or 120 milliamps. This
figure is well within the lethal range. As stated above the Applicant's
expert, Mr. Pupera,stated that with the proper conditions a person touching
a bare 120 volt wire could sustain a lethal shock (Tr. 139-140).
In summary, an individual touching a bare 120-volt wire that was not
in contact with the metal portion of the slusher could, under the proper
conditions, receive a fatal shock. A fault condition can occur when the
dielectric ~trength of the cable is lower than the voltage passing through
the circuit, and this can be induced by a reduction of the insulation.
This results in an insulation breakdown that is virtually instantaneous,
with the insulated cable assuming the properties of a bare wire, and with
the same attendant shock hazards. The condition of the wire, viewed in

2203

conjunction with the possibility of .12 amps passing through the body,
reveals that a danger was present. The fact that a person wearing dry boots
in good condition would not receive a shock (Tr. II at 425-428) is not controlling. The record clearly establishes that the presence of water sprays
rendered the area damp (Tr. I at 185-186).
Climax has not established that the danger was not imminent. The testimony adduced with respect to the tripping time of circuit breakers is
insufficient to sustain this burden. Also MSHA, by a preponderance of the
evidence has established that an inn:ninent danger existed. This is
especially true in light of Mr. Pupera's above-mentioned testimony (Tr. II
at 139-140). The tripping of this breaker would be dependent upon the
creation of a ground fault condition which would not occur until the wire
was touched by human hands if the damaged spot was facing upward. Thus, a
fatal injury could be sustained. Additionally, I find it highly improbable
that this cable would have remained in continuous contact with the metal
portions of the slusher. This is based upon two sets of observations.
First, the cable (Exh. 0-4) contains a second, similar groove, although it
has not penetrated beneath the outer jacket. The mere presence of the
second groove indicates.that the cable was moved at some point in time and
further indicates that the cable would probably be moved again in the ordinary course of mining. Second, the slusher operator would have to move the
cable in order to properly examine it in the fashion dictated by the company
(Tr. II at 117).
Most of the evidence adduced by Climax addresses the probability of
occurrence. As indicated by the legislative history of the 1977 Mine Act,
the probability of occurence is not a controlling factor in determining the
validity of an imminent danger order.
The condition of the wire was such that not only was the outer jacket
of the cable worn through but some of the inner insulation was also worn.
Exactly how much could not be determined by the visual examination which an
inspector could make under the circumstances here. Therefore, a high
potential of risk of serious phusical harm existed. Accordingly, a reasonable man, given a qualified inspector's education and experience would
objectively estimate that if normal mining operations in the disputed area
continued, a serious shock or electrocution could occur before elimination
of the danger.
Accordingly, it is found that the electrocution hazard presented an
imminent danger within the meaning of the 1977 Mine Act.
In this regard it must be remembered that the legislative history of
the 1977 Mine Act, as well as recent decisions of the Federal courts, have
evolved to the point where the benefit of any doubt must be cast in favor
of withdrawal.
As referred to previously in this decision, the legislative history of
the 1977 Mine Act in4icates that imminent danger is not to be "defined in

2204

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 anytime."
The legislative history further indicates that "the authority under
this section is essential to the protection of the miners and should be construed expansively by inspectors and the Commission." The legislative history goes on to point out that an: "imminent danger withdrawal order is
designed to afford miners immediate protection in those situations where a
condition or practice in a mine could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated."
s. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977) supra.
Finally one Federal court recently stated that: "[t]he safety of the
miner is the single most crucial motivation behind the [1969 Coal Act]."
The court went on to state that the congressional hearings, the first section of the statute and judical review "support the clear intent of Congress
that coal mines, or areas of coal mines, in which imminent danger was found
to exist must be evacuated at once, with the benefit of any doubt cut in
favor of withdrawal." District 6, United Mine Workers of America v. United
States Department of the Interior Board of Mine Operations Appeals, supra.
As relates to the purported fire hazard, Inspector Enderby testified
that exposed inner insulation creates a fire hazard if it is not fireretardant (Tr. I at 211). According to the inspector, electrical energy or
heat from the conductors inside the insulation would be the source of the
fire (Tr. I at 212).
At one point in his testimony on November 29, 1978, Inspector Freilino
set forth his opinions with respect to the potential fire hazard, in which
he assumed that the starter leg wire was ungrounded (Tr. I at 293-294).
His testimony on January 31, 1979, reflected that he had observed approximately 12 slusher installations on the Starke level. He testified that
there are points on the machines requiring lubrication, and that he had
seen some areas on shafts containing a small amount of grease. Foreign
matter, such as grease, oil or moisture, entering the cable through a hole
in the jacket will increase deterioration and eventually cause an internal
short between the conductors. In response to a question designed to determine how such conditions could create a fire, he stated that an arcing condition would occur before the cable actually failed and tripped the breaker
(Tr. II at 352-353). However, it is unclear whether this circumstance
relates solely to an ungrounded starter leg wire or whether it relates to
a cable grounded by a bare No. 4 copper wire. Considering all surrounding
factors it cannot be found that MSHA has established a prima facie case
of an imminent danger as relates to the fire hazard.
V.

Conclusions of Law

1. The Applicant, Climax Molybdenum Company and its Climax Mine are
subject to the provisions of the Federal Mine Safety and Health Act of 1977.

2205

2. The Administrative Law Judge has jurisdiction over the subject
matter of, and the parties to, this proceeding~
3. MSHA inspector James Enderby was an authorized representative of
the Secretary at all times relevant to this proceeding.

4. MSHA has not established a prima facie case of imminent danger as
relates to the alleged fire hazard.
5. The condition of the starter leg wire on the 615-14 slusher which
resulted in the issuance of Order of Withdrawal No. 333638 on August 31,
1978, did constitute an imminent danger to the workers in the mine in that
it posed an electrocution hazard.
6.

Order of Withdrawawl No. 333638 was validly issued.

7. All of the rulings with respect to exhibits made in Part III(D)
of this decision are reaffirmed and incorporated herein.
8. All of the conclusions of law made in Part IV of this decision are
reaffirmed and incorporated herein.
VI.

Proposed Findings of Fact and Conclusions of Law

MSHA and Climax submitted posthearing briefs. Climax submitted a reply
brief. Such briefs, insofar as they can be considered to have contained
proposed findings and conclusions, have been considered fully, and except
to the extent that such findings and conclusions have been expressly or
impliedly affirmed in this decision, they are rejected on the ground that
they are, in whole or in part, contrary to the facts and law or because
they are immaterial to the decision in this case.
ORDER
Accordingly, Order of Withdrawal No. 333638 is AFFIRMED, and the
application to vacate said order of withdrawal is DENIED.

o n F.

i!;r;;;Z

:>

Administrative Law Judge

2206

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceeding
Docket No. WILK 79-89-PM
A.c. No. 17-00310-05001

Petitioner

v.
North Waterfield Pit & Mill
CIANBRO CORPORATION,
Respondent
DECISION
Appearances:

Ronald Glover Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
William Lee, Safety Director, Cianbro Corporation, Pittsfield,
Maine, for Respondent.

Before:

Administrative Law Judge Michels

This proceeding was brought pursuant to section llO(a) of the Federal
Mine Safety & Health Act of 1977, 30 u.s.c. § 820(a). The petition for
assessment of civil penalty was filed by MSHA on January 30, 1979. A timely
answer was filed by the Respondent. A hearing was held in Bangor, Maine, on
October 16, 1979, at which both parties were represented.
This proceeding concerns one citation. Evidence was received and a
decision thereon was rendered from the bench. The decision as it appears
in the record, is set forth below.
Citation No. 201013, issued July 6, 1978
The following is the bench decision on this citation found at pages
38-42 of the transcript.
My decision in this matter is basically in two parts.
First, whether or not there is a violation; and second, if
there is a violation then I would make findings on the applicable criteria to determine the size of the penalty. Oftentimes, and perhaps here, some of the elements that are mentioned are taken into account in connection with the gravity
or negligence findings, if in fact it is found there is a
violation.

2207

This matter concerns citation number 201013, which was
issued on July the 6th, 1978. The inspector charged a violation of 30 c.F.R. 56.11-1. He alleged that the condition
of practice was as follows, "The ladder to the rock return
conveyor had been removed; a safe access was not provided."
The applicable regulation charged reads as follows, "Safe
means of access shall be provided and maintained to all
working places."
In this instance, it was stipulated that the Mine Health
and Safety Act and the applicable regulations do apply to
this plant. So, I'll not further consider that particular
element.
I do state, however, on this record, that it is not a
precedent for any future act that this particular presiding
Judge might take, but it's based solely upon the agreement
of the parties. So accordingly, I do find then based on the
agreement, that the Act and the regulations are applicable
to this plant.
There is no dispute on certain basic facts. There is
a walkway along the conveyor belt which is approximately four
feet above the ground, at least at the lower end. This walkway, it is clear from the testimony, was a working place,
since miners did have occasion to use it for maintenance.
There is also no dispute that normally access to that walkway would be by means of ladder which was propped up at the
end of the walkway. This ladder was not located at the end
of the walkway on the day the inspector made his inspection.
There is * * * a little dispute as to where it may have been,
but it is clear that it was not located against the walkway
on that occasion.
It is further clear and admitted that this ladder might
be used on some occasions in other parts of the plant and
could be a considerable distance from the walkway.
It is further clear and admitted that access is required
to this walkway at about several times a week for the purposes of maintenance.
The only real question perhaps is whether this regulation requires, in this particular instance at least, a permanent means of access or a continuous means of access or
whether access need only be provided at such times as the
walkway is used.
It would be my view and decision is based on it, that
a continuous means of access is necessary for access by
miners to a working place, including this walkway. It would

2208

be my further view that this is somewhat more than technical.
I'll take into account that no miners were ·seen using this
walkway by the inspector; and furthermore, the testimony
shows that no one has ever observed a miner using that walkway unless the ladder was there; that element would come into
the gravity of the violation. The fact remains, however, that
somehow, sometime, there will be an emergency occasion and
that ladder might not be there and a miner would find the
occasion to use that walkway and attempt to gain access without the ladder and thus subject himself to possible injury.
Accordingly, I do find that there is a violation of 30 C.F.R.
56.11-1 as charged. My findings on the criteria are as
follows:
A history of prior violations: there is little or no indication of prior violations in the record and I find that there
is no such history. The operator's size: it was stipulated
that this company is small to medium in size. There is no
evidence that the penalty to be assessed here today would
have any effect on the operator's ability to continue business. Abatement: the inspector testified, and I would accept
his testimony as a finding that the violation was abated in
very good faith immediately. Furthermore, the operator has
demonstrated even further good faith by bolting a permanent
ladder to this location.
That leaves two remaining points. Now because of the
circumstances that were demonstrated here, I'll find slight
negligence. In my view, it is the type of situation in which
the operator should have known they needed a continuous means
of access. Nevertheless, the testimony does indicate that the
operator in honesty and in good faith believed that that would
not be used except if the ladder was in place. The operator
had no reason to believe otherwise and had never been warned
of an unsafe situation. And so, I would take all that into
account and under the circumstances [find that the operator]
demonstrated slight negligence.
Gravity: The lack of a means of access, it seems to me,
shows a serious violation. This is mitigated to some extent
in this case by the fact that there is no evidence at
all that anybody used that means of access unless that ladder
was in place. Nevertheless, it could have been so used. And
if a miner had attempted to gain access without a ladder the
miner might have seriously injured himself in a fall or in
getting caught in the moving machinery. Taking into account
all these circumstances, the very good faith of the operator
and its slight negligence because of the circumstances, I
would reduce the penalty origina1ly assessed by the assessment officer from $34.00 to $10.00, which I believe would be
a nominal penalty under the circumstances.

2209

The above bench decision is AFFIRMED.
It ~ ORDERED that Respondent pay the penalty of $10 within thirty (30)
days of the date of this decision.
•
__,,;:-- , #,l /,J ,. / ' ,Y'7
--.f'./

.:_/,4'-tUtP~~--1 ,

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.
\),-~d
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,, _,,//'~-"!.

. ~

;e:_..,,

Franklin P. Michels
Administrative Law Judge
Distribution:
Ronald Glover, Esq., Office of the Solicitor, u.s Department of Labor,
Room 1803, JFK Federal Building, Boston, MA 02203 (Certified Mail)
William H. Lee, Safety Director, Cianbro Corporation, P.O. Box D,
Hunnewell Ave., Pittsfield, ME 04967 (Certified Mail)

2210

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

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

Civil Penalty Proceedings
Petitioner

v.
PARAMOUNT MINING CORPORATION,
Respondent

Docket Nos. NORT 79-81-P
NORT 79-92-P
VA 79-51
Deep Mine No. 5
Docket Nos. VA 79-1
NORT 79-80-P
Deep Mine No. 2

DECISION
Appearances:

Barbara Krause Kaufmann, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Galen c. Thomas, Esq., Barber Oil Corporation, New York,
New York, for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASES
These cases were initiated by petitions seeking civil penalties for
alleged violations of mandatory safety standards promulgated under the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· By
order issued August 31, 1979, the above dockets were consolidated for the
purposes of hearing and decision. Pursuant to notice, the cases were
called for hearing on the merits on November 15, 1979, in Big Stone Gap,
Virginia. Allan Garrett Howell, a Federal coal mine inspector, testified
on behalf of Petitioner. Melvyn Eads testified on behalf of Respondent.
Both parties waived the filing of written proposed findings of fact and
conclusions of law.
MOTION TO PRECLUDE
With respect to Docket No. VA 79-51, Respondent filed prior to the
hearing a motion to preclude Petitioner from offering evidence on any

2211

matter concerning which interrogatories, admissions, or production of
documents were requested. The grounds for the motion were that the
responses were inadequate and not timely filed. I denied the motion on
the record and hereby confirm that ruling.
DOCKET NO. NORT 79-92-P
Citation No. 35619, issued November 15, 1978, charged a violation of
30 CFR 75.200. Following the testimony regarding this citation, I issued
a decision from the bench as follows:
JUDGE BRODERICK:

Very well.

With respect to the violations charged in Citation Number 035625 -- I've got the number wrong. This is 035619. I
find and this finding will apply to all alleged violations
in these docket numbers -- that the respondent, on the basis
of the stipulation that between six hundred twenty-one thousand and seven hundred twenty-one thousand tons of coal were
produced in the year 1978, is a large operator. There is no
evidence in the record that penalties would affect the operator's ability to continue in business, and, therefore, I
find any penalties assessed herein would not affect its
ability to continue in business.
1he petitioner does not contend that the respondent has
such a history of prior violations that penalties otherwise
appropriate should be increased because of the history and,
therefore, I will not increase any penalty I might assess
in this case because of respondent's history.
The violation charged in the citation at issue is a
violation of 30 CFR 75.200, and the citation charges the
respondent violated certain provisions of its approved roof
control plan, in that there were areas of unsupported roof,
five separate areas of unsupported roof in the section of
the mine involved, namely the main section.
I find on the basis of the evidence presented that
there were areas of unsupported roof and there were violations of the approved roof control plan as follows: In
the crosscut between the belt entry and the Number Three
heading -- the belt heading in the Number Three heading,
there· was an area approximately twenty by fifteen feet of
unsupported roof; I find that in the Number Two heading,
there was an area in excess of twenty feet from the face
to the last roof supports, and that the heading was
approximately twenty feet wide; I find, also, that the
continuous miner used in this heading was approximately
twenty feet from the extreme bit to the pull [control]

2212

area in the miner, therefore, if the miner was cutting in
that area, the operator of the continuous miner was under
unsupported roof; I find that in the Number One heading,
there was an area of unsupported roof approxiniately
eleven feet back of the face in the heading, and that heading was approximately twenty feet wide; I find that there
was an area inby the Number One heading where the miner
apparently had slabbed to the left while cutting the Number
One heading, and this area was approximately four feet in
depth; there were permanent supports between the crosscuts,
~ich were approximately eight feet from the face area of
the slabbing; I find there was an area -- another area
in the Number One heading to the left approximately
fifteen feet by eleven feet where there was unsupported
roof; I find, also, there were danger boards on each rib
in the crosscut between the belt heading and the Number
three heading; I find there had been a prior rock fall in
the area between the belt heading and the Number three heading, and that the rock had been cleaned up; there also had
been rock falls in the area of the Number Two heading, and
that the rock fall in this area was in an irregular pattern
and varied from one to three and a half feet; I find that
the bottom in the crosscut between the belt heading in
Number Three heading was relatively dry and was on an angle;
there were areas of water in both the Number One and Number
Two heading, and the bottom was very soft; the Number One
heading was extremely high because of a rock fall, and it
was from twelve to thirteen feet in height; in the Number
Two heading, rock had been taken down by the miner with the
coal; there was no danger sign in the Number Two heading;
the continuous miner was present in the Number Two heading
outby the crosscut; there was a danger sign in the Number
One entry.
Respondent had taken over this mine from another mining
company and inspected the mine in September of 1978. Mining was not begun until mid-October, 1978. Problems were
encountered because of an area of.old works which was
partly crossed in this section.
Based on these findings of fact, I conclude that the
violation charged in Citation Number 035619 of 30 CFR
75.200 occurred.
Because of the number of areas involved and because of
the extreme seriousness in the mining industry of roof
falls, and because of the general poor condition of the
roof in this area, I find that the violation was serious.
The conditions found by the inspector had apparently
not existed for a long time. There were danger signs in

2213

certain of the areas involved. For these reasons, I find
that .although respondent was aware of these conditions,
there were difficulties in immediately taking care of the
conditions because of the extreme height of some of the
areas of rock fall and because of the difficult mining conditions. These tend to mitigate the negligence of the
operator.
For that reason, the penalty will not be as large as it
might have been in the event of a finding of negligence.
On the basis of all the testimony submitted, I will
assess a penalty for this violation which I have found to
have occurred of seven hundred fifty dollars ($750).

I hereby affirm that decision.
DOCKET NO. VA 79-51
Order No. 36857, issued December 21, 1978, charged a violation of
30 CFR 75.313. Following the testimony concerning this violation, I
issued a decision from the bench as follows:
JUDGE BRODERICK: All right. I will find, on basis of
all evidence which was introduced this afternoon, that the
Government has failed to sustain its burden of proving the
occurrence of the violation charged in the order.
I hold that for a violation of 30 CFR 75.313, the
G>vernment must establish that the methane monitor is
inoperative and that coal was mined, cut or loaded while
it was inoperative.
1he evidence in this case does not establish that coal
was being produced, that it was mined, cut or loaded during the time the methane monitor was inoperative. The
monitor became inoperative, according to the evidence, on
December 15, 1978. The order was placed for a replacement
after the existing substitute monitor was also found to be
inoperative. The order was placed on December 15.
The inference which could be drawn from the testimony
of the inspector that coal was being cut on December 15 is
contradicted by direct testimony of the operator's and the
company records.
And I conclude, on the basis of all the testimony and
the records, that coal was not being produced on December 21,
1978, and there was no evidence it was produced after the
monitor became inoperative on December 15.

2214

For these reasons, I conclude that the violation
charged in Order Number-36857 did not occur, and, therefore, no penalty is assessed.
I assume, because of my findings, that the legal issues
raised by counsel for respondent are moot at this time. I
should say, however, that I would rule that the challenge
to the order which was raised prior to the evidence in this
case is not properly before me in a civil penalty proceeding,
and my ruling would be that this matter has to be decided on
the merits and not on the motion to dismiss which was submitted at the beginning of the hearing.
I hereby affirm that decision.
Order No. 36858, issued December 21, 1978, charged a violation of
30 CFR 75.316 because of the failure of the operator to maintain line
curtains as required by its ventilation plan. On the record, the parties moved for the approval of a settlement of this violation for a payment of $475. The violation was originally assessed at $750. The
parties stated that at certain locations the operator had removed line
curtains becaus.e of water problems, intending to replace them with a
different kind of curtain. The fan was shut down shortly thereafter
and the miners were removed from the section. This reduced the gravity
of the violation. I approved the settlement agreement.
DOCKET NO. NORT 79-92-P
Order No. 35625, issued November 20, 1978, charged a violation of
30 CFR 75.200 because of a violation of the approved roof control plan.
The parties moved for the approval of a settlement of this violation for
a payment of $350. The original assessment was $500. The parties
stated that the operator had encountered unexpected roof conditions and
that he had set more temporary supports than the plan required. The
operator was experiencing problems with the mine floor which made the
setting of permanent supports more difficult. I approved the settlement
agreement.
DOCKET NO. NORT 79-81-P
Citation No. 34338, issued October 31, 1978, charged a violation of
30 CFR 75.200 because a heading was advanced 25 feet from the last row of
permanent supports. The parties moved for the approval of a settlement of
this violation for a payment of $55. The original assessment was $78.
The parties stated that the roof .conditions were good and that there was
a factual dispute concerning the measurements. I approved the settlement
agreement.
Citation No. 34339, issued October 31, 1978, charged a violation of
30 CFR 75.200 because of an inadequate reflectorized warning device at the

2215

last permanent support. The parties moved for the approval of a settlement
of this violation for the payment of $26, which was the amount of the
original assessment. I approved the settlement agreement.
Citation No. 35620, issued November 15, 1978, charged a violation of
30 CFR 75.503 because of a permissibility violation on a scoop. The parties moved for the approval of a settlement of this violation for the payment of $38, which was the amount of the original assessment. No methane
had been found in the mine. I approved the settlement agreement.
Citation No. 35621, issued November 15, 1978, charged a violation of
30 CFR 75.605 because of an inadequate strain clamp on a shuttle car cable.
The parties moved for the approval of a settlement of this violation for the
payment of $15. The violation was originally assessed at $30. The clamp
had apparently given way just prior to the inspection, and the operator's
negligence was minimal. I approved the settlement agreement.
DOCKET NO. VA 79-1
Citation No. 36161, issued November 8, 1978, charged a violation of
30 CFR 75.200 because two rows of permanent supports had been dislodged and
not replaced. The parties moved for the approval of a settlement of this
violation for the payment of $1,250. The violation was originally assessed
at $1,500. The parties stated that there was a factual dispute as to the
length of time the supports had been dislodged. The roof conditions were
good. I approved this settlement agreement.
Order No. 35705, issued November 8, 1978, charged a violation of
30 CFR 75.200 because of the operator's failure to roof bolt a 20-foot
area. The parties moved for the approval of a settlement of this violation for the payment of $650. The original assessment was $1,500. The
parties stated that the roof bolter was not operating at this time, that
there was a factual dispute as to whether the area involved was a
traveled area and that the roof conditions were exceptionally good. I
approved the settlement agreement.
DOCKET NO. NORT 79-80-P
Citation No. 356706, issued November 8, 1978, charged a violation of
30 CFR 75.200 because of the failure to make a torque check on the first
roof bolt installed. The parties moved for the approval of a settlement
of this violation for the payment of $32, the amount of the original
assessment. I approved the settlement agreement •
. Citation No. 35707, issued November 8, 1978, charged a violation of

30 CFR 75.200 because of the operator's failure to have an approved

torque wrench on the roof bolting machine. The parties moved for the
approval of a settlement of this violation for the payment of $32, the
amount of the original assessment. I approved the settlement agreement.

2216

Citation No. 35708, issued November 8, 1978, charged a violation of
30 CFR 75.200 because of the operator's failure to have a slate bar on the
roof bolting machine. The parties moved for the approval of a settlement
of this violation for the payment of $30, the amount of the original
assessment. Both the torque wrench and slate bar were present on the section. I approved the settlement agreement.
Citation No. 35709, issued November 8, 1978, charged a violation of
30 CFR 75.200 because of an inadequate number of test holes being drilled
on the roof.
The parties moved to settle this violation for the payment
of $40, the amount of the original assessment. There was a factual dispute
as to the number of holes present. I approved the settlement agreement.
Citation No. 35710, issued November 8, 1978, charged a violation of
30 CFR 75.1704 because of the accumulation of water in the designated
escapeway. The parties moved to settle this violation for the payment of
$12. The original assessment was $24. The water was not of such height
as to prevent miners from using the escapeway. I approved the settlement
agreement.
Citation No. 35711, issued November 8, 1978, charged a violation of
30 CFR 75.1720 because two miners were observed not wearing eye protection
when driving metal spikes. The parties moved for the settlement of the
violation on the payment of $20. The original assessment was $34. All
miners were provided with eye protection and no supervisory personnel were
in the area. I approved the settlement agreement.
ORDER
Within 30 days of the date of this decision, Respondent is ORDERED to
pay the following penalties:
Citation or Order No.

Date

30 CFR Section

35619
36857
36858
35625
34338
34339
35620
35621
36161
35705
35706
35707
35708
35709

11/15/78
12/21/78
12/21/78
11/20/78
10/31/78
10/31/78
11/15/78
11/15/78
11/08/78
11/08/78
11/08/78
11/08/78
11/08/78
11/08/78

75.200
75.313
75.316
75.200
75.200
75.200
7 5.503
75.605
75.200
75.200
75.200
75.200
75.200
75.200

2217

Penaltl Amount
750
0
475
350
55
26
38
15
1,250
650
32
32
30
40

$

35710
35711

75.1704
75.1120

11/08/78
11/08/78

TOTAL

12
20
$3, 775

j~ A~::tf;n~
Chief Administrative Law Judge

Distribution:
Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104
Galen C. Thomas, Esq., c/o Barber Oil Corporation, 245 Park Avenue,
New York, New York 10017

2218
« U. S. GOVERNMENT PRINTING OFFICE: 1980 311-143/3311