August 1981
Commission Decisions
8-04-81
8-06-81

Tazco, Inc.
Rebel Coal Co.

VA 80-121
WEVA 80-532-D

Pg. 1895
Pg. 1900

Administrative Law Judge Decisions
8-04-81
8-04-81
8-06-81
8-10-81
8-12-81
8-13-81
8-14-81
8-17-81
8-18-81
8-20-81
8-20-81
8-21-81
8-21-81
8-24-81
8-24-81
8-26-81
8-27-81
8-28-81
8-28-81
8-31-81

The Anaconda Co.
WEST 79-20-M
Tehama County Excavating
WEST 80-348-M
Consolidation Coal Co.
WEVA 81-259-R
Minerals Exploration Co.
D 81-1
MSHA ex rel Theodore Hazzard v. Cannelton
Industries, Inc.
WEVA 81-392-D
,WEST 81-94-M
The Anaconda Co.
Chemical Lime, Inc.
CENT 80-231-M
Johnson, Stewart & Johnson Mining Co., Inc. WEST 79-175-M
Kaiser Sand & Gravel Co.
WEST 80-89-M
Rushton Mining Co.
PENN 81-24
National Cement Co.
SE 81-17-M
Amax Coal Co.
LAKE 81-37
Mark Segedi On behalf of: S.J. Ezarik,
et al., v. Bethlehem Mines Corp.
PENN 80-273-D
C F & I Steel Corp.
WEST 79-239
Franklin D. Kaestner v. Colorado Westmoreland Inc.
WEST 81-24-D
Mathies Coal Co.
PENN 80-260-R
Beatrice Pocahontas Co.
VA 80-167-C
CENT 81-223-R
UMWA
V & R Coal Corp.
WEVA 81-188
United States Steel Corp.
PENN 81-9-R

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Commission Decisions

AUGUST
The following cases were Directed for Review during the month of August:
Jones & Laughlin Steel Corporation v. Secretary of Labor, MSHA and UMWA,
PENN 81-96-R; (Judge Laurenson, July 1, 1981).
Secretary of Labor, MSHA v. Capitol Aggregates, Inc., CENT 79-59-M, etc.;
(Judge Vail, June 30, 1981).
Lloyd Brazell v. Island Creek Coal Company, KENT 81-46-D; (Judge Steffey,
July 13, 1981).
Secretary of Labor, MSHA v. Monterey Coal Company, LAKE 80-413-R, 81-59;
(Judge Moore, July 13, 1981).
Todilto Exploration and Development Corporation v. Secretary of Labor, MSHA,
C~NT 79-91-RM, 79-310-M; (Judge Boltz, July 21, 1981).
Review was Dismissed in the following case during the month of August:
Gerald Boone v. Rebel Coal Company, WEVA 80-532-D; (Judge Melick, July 8,
1981).

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

August 4, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 80-121

v.
TAZCO, INC.
DECISION

In this civil penalty case ar1s1ng under the 1977 Mine Act, 30
U.S.C. §801 et~· (Supp. III 1979), the Secretary contests a judge's
power to impose, in effect, a $0.00 penalty by suspending payment of the
actual penalty assessed. The judge assessed and then suspended a $400
penalty against Tazco, Inc., in a November 17, 1980, decision issued in
response to the parties' settlement motion. 2 FMSHRC 3299. For the
reasons set forth below, we hold that the Commission and its judges lack
the power to suspend penalties in whole or in part. We therefore affirm
the judge's decision only insofar as it approved the settlement and
reverse it with regard to the penalty suspension.
The underlying facts are undisputed. In January 1980, Tazco was
cited for failing to drill roof bolt test holes at 20-foot intervals.
Four days after the first citation, Tazco was cited for an unwarrantable
failure (section 104(d)(l) of the Mine Act) to comply with the same roof
control provision. The second citation is the subject of this case.
MSHA initially assessed for the second violation a $500 penalty
which Tazco contested. However, before the hearing, the parties agreed
to a settlement of $400. The Secretary moved for approval of this
settlement in his Motion For Decision And Order Approving Settlement.
To justify the $100 reduction, the motion stated that: Tazco had
reinstructed its foremen respecting the 20-foot test hole requirement
after the initial citation; innnediately after receiving the second
citation, Tazco discharged the particular foreman who was apparently
responsible for both violations; and Tazco alleged that the roof was
sound, and the Secretary had no information to the contrary.
In his decision, the judge undertook an "independent evaluation and
de ~ review of the circumstances and the amount of the penalty
warranted." 2 FMSHRC at 3299. The sole fact he discussed was Tazco's
discharge of the offending foreman, which, he concluded, warranted
suspension of the stipulated penalty. Id. Accordingly, he ordered

1885

81-8-3

"that for the violation found the operator pay a penalty of $400, with
payment to·be suspended." Id. at 3300. He then dismissed the case.])
A suspended penalty is virtually the same as assessing no penalty
despite a violation. Both actions are contrary to the Mine Act's
mandatory penalty structure to which we have alluded in previous cases.
See, for example, Island Creek Coal Company, 2 FMSHRC 279, 280 (1980);
Cf. R.H. Coal Company, 7 IBMA 64, 67-68 (1978)(holding that 1969 Coal
Act mandated assessment of penalties). This case provides an appropriate occasion to elaborate on the Mine Act's mandatory penalty
assessment scheme.
Section 110 contains the Mine Act's major penalty provisions. In
mandatory terms, section llO(a) directs the Secretary, who has enforcement responsibility under the Mine Act, initially to assess a penalty
for each violation; section llO(i) similarly provides that the Commission, which has adjudicative responsibility, "shall have authority to
. assess all civil penalties provided in [the] Act."]:_/ The language of the

1/

We treat the judge's decision as approving the settlement, assessing a $400 penalty, and then suspending its payment. The Secretary cast
his motion as one for settlement approval. The judge recited only this
characterization of the motion in his opinion, leading us to believe he·
accepted that characterization. Because he discussed disapprovingly
only a single factor, we can conclude only that he tacitly accepted the
remaining recitations in the motion. Thus, his treatment is in line
with settlement approval where the judge's duty is to assure that the
settlement was not reached for an improper reason violative of the Mine
Act's objectives. Davis Coal Co., 2 FMSHRC 619 (1980).
]:_/ Section llO(a) provides in relevant part:
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 ....
Section llO(i) provides:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's history of
previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator
was negligent, the effect on the operator's abiiity to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a violation. In proposing civil
penalties under this Act, the Secretary may rely upon a summary
review of the information available to him and shall not be
required to make findings of fact concerning the above factors.

18U6

two subsections--indeed the language of all of section 110--is plainly
based on the premise that a penalty will be assessed for each violation
at both the Secretarial and Commission levels.
The Mine Act's legislative history also shows that Congress
intended a mandatory penalty structure. Congress consistently described
penalties as mandatory without entertaining any distinction between the
assessment of a penalty at the Secretarial or Commission level. ]_/ For
example, Senator Williams, chief architect and a sponsor of the Senate
bill, described the proposed Act as continuing the concept of "mandatory
civil penalties [which] have been a feature of the enforcement of the
Coal Mine Health .and Safety Act since 1970." Leg. Hist. 88.
The Senate
report on the Senate bill states: "The Committee specifically rejects
the suggestion that the imposition of civil penalties be discretionary
rather than mandatory . • . . [T]he Committee has adopted the civil
penalties as they exist in the current Coal Act." S. Rep. 95-181, at
41, reprinted in Leg. Hist. 629. Further, in both houses, amendments
which sought to make penalties discretionary were offered and rejected.
Senate vote, Leg. Hist. 828, 1063; House vote, Leg. Hist. 1183, 1233.
The debates which preceded the rejections did not draw any distinction
between assessment at the Secretarial or Commission level.
Views were
again expressed simply that penalties should be mandatory.
Leg. Hist.
1008.
In sum, both the text and legislative history of section 110 make
clear that the Secretary must propose a penalty assessment for each
alleged violation and that the Commission and its judges must assess
some penalty for each violation found.
As previously noted, while in a strict legal sense, a $0.00 penalty
and a $400 penalty with payment suspended are not identical remedies,
their practical effect is the same.
To allow the judge to accomplish de
facto by penalty suspension what he cannot do directly strikes us as an
incongruous result.
It allows the judge to thwart the congressional
intent that at least some penalty be assessed for each violation found.
Thus, consistency with that intent weighs against a judge's power to
suspend a penalty.
In addition, nothing else in the Mine Act confers a power to
suspend penalties. Administrative law judges are subordinate to, and
draw their powers from, their controlling agency and its organic statute.
Admininstrative Procedure Act §7(b), 5 U.S.C. §556(c); Attorney General's
Manual on the Administrative Procedure Act 74 (1947). Thus, it is
axiomatic that an administrative law judge's power is limited by the
limits on his agency's powers.
The Mine Act does not expressly grant
the Commission the power to suspend payment of penalties.
Consequently,
if the power is not otherwise inherent or implied by the broad grant of
power given the Commission to "assess all civil penalties," the Conunission
and its judges lack the power. As discussed above, since the power to
suspend is in opposition .to the Mine Act's mandatory penalty structure,
we cannot conclude that such implied power exists.

]_/
In general, see Senate Subcommittee on Labor, Comm. on Human Resources,
95th Cong:, 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 85, 88, 375-376, 600-601, 629, 910, 1167,
1211-12, 1364-65 (1978) ["Leg. Hist."].

1897

Furthermore, by way of analogy, the majority state rule and the
federal rule are that even trial judges have no inherent authority to
suspend the.execution of sentences in criminal cases. Ex parte U.S.,
242 U.S. 27, 42 (1916); see generally 73 ALR 3d_474 (1976). They gain
the right to suspend sentences only by a statutory grant. Again, we
stress the absence of a similar grant in the Mine Act.
Therefore, the Commission and its judges do not have the power to
suspend penalties either in whole or in part. If it is found in a given
case that a low penalty is warranted, a low penalty may, of course, be
assessed. !!._/ Similarly, if a judge disagrees with a stipulated penalty
amount in a settlement, he is free to reject the settlement and direct
the matter for hearing.
For the foregoing reasons, we affirm the judge insofar as he
approved the settlement and assessed a $400 penalty; we reverse insofar
as he suspended payment of the $400 assessed penalty. Our decision
therefore reinstates the $400 penalty to which the parties stipulated.

Marian

an Nease, Commissioner

!!._/
We note, however, that this case does not require us to pass on the
propriety of nominal penalties.

1898

Distribution

Nancy S. Hyde, Esq.
Michael McCord, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Paul Merritt, Esq.
Tazco, Inc.
P.O. Box 367
Doran, Virginia 24612
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

18D9

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

August 6, 1981

GERALD D. BOONE
Docket No. WEVA 80-532-D

v.
REBEL COAL COMPANY
ORDER

This proceeding was initiated by a complaint filed by Gerald D.
Boone under the provisions of section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~·· the "Act"
alleging that Mr. Boone was discharged by the Rebel Coal Company in
violation of section 105(c)(l) of the Act because he refused to comply
with an order to drive a haulage truck he claimed was in a hazardous
condition. On July 8, 1981, the judge issued his decision finding that
Boone was discharged in violation of section 105(c)(l) of the Act. The
judge neither granted nor denied any relief but ordered the parties "to
consult and seek to stipulate as to the specific damages resulting from
the discharge of Gerald D. Boone found unlawful in these proceedings and
to report to me in writing on or before July 30, 1981, the results of
such consultations."
On July 30, 1981, Rebel Coal Company filed its Petition for Review
raising questions of law and fact relating to the judge's decision.
The Commission considered an analogous situation in Council of
Southern Mountains, Inc. v. Martin County Coal Corp.,2 FMSHRC 3216
(Nov. 12, 1980). There the judge had issued his decision and granted
some relief, but did not resolve the amount of attorney fees and other
costs. We looked to section 113(d)(l) of the Act and Commission Rule
65(a) to conclude that failure to resolve these monetary awards did not
constitute a final disposition by the judge to initiate the running of
the statutory review periods under section 113 of the Act. In that case
we dismissed the petitions for review as premature. In the instant case,
the judge did not resolve any monetary awards, but ordered the parties
to consult and to report back to him. Our reasoning and decision in
Martin County Coal Corp., supra is applicable to this case.
Accordingly, the petition for review filed by Rebel Coal Company
is dismissed as premature. The parties may file petitions for review

81-8-4

1!100

J

in accordance with section 113 of the Act and Commission Rule 70
(29 C.F.R. 2700.70) once the judge has made his final disposition of
this proceeding.

~-<---'-C-~4~~~
Richard V. Backley, Chairman

A. E. Lawson, Commissioner

~Qt{
~~~Ot1LCLL1 <\UaJ2
Marian Pearlman Nease, Commissioner

1901

Distribution:
Daniel F. Hedges,
Appalachian Research and Defense Fund, Inc.
1116 - B Kanawha Boulevard
East Charleston, West Virginia-25301
Car1 McAfee, Esq.
Cline McAfee and Adkins
1022 .Parle Avenue' NW
Norton, Virginia 24273

Cynthia Attwood, Esq.
U.S.Departmant of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, Virginia 22203
Administrative Law Judge Gary Malick
Office of .Achni.nistrative Law Judges
Federal Mine Safety and Health Review Conmission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

1902

Administrative Law Judge Decisions

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)

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

Petitioner,

) DOCKET NO. WEST 79-20-M
)

v.

) MSHA CASE NO. 24-00338-05003 F
)

THE ANACONDA COMPANY,
Respondent.

) MINE: Berkeley Pit
)
)

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

DECISION
Appearances:
Ann M. Noble, Esq., Office of the Solicitor, United States Department of
Labor, 1961 Stout Street, 1585 Federal Building, Denver, Colorado 80294
For the Petitioner
Edward F. Bartlett, Esq., and Karla M. Gray, Esq.
P.O. Box 689, Butte, Montana 59701
For the Respondent
Before: Judge Virgil E. Vail
I. Procedural Background
The above captioned civil penalty proceeding was brought pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 820(a) [hereinafter referred to as "the Act"].
Pursuant to notice, a hearing on the merits was held at Butte, Montana
on September 16, 1980. Respondent called Walter B. Brown and Robert G.
Henderson as witnesses. Petitioner did not offer any oral testimony. The
parties filed post hearing briefs.
II. Stipulations
During the course of the hearing, the parties entered into the
following stipulations:
1. The Administrative Law Judge has jurisdiction to hear this case.
2. The respondent is a large company.

1904

3. The assessment of a penalty in this case would not affect the
respondent's a_bility to continue in business.
4. The autopsy report is admissible (P's Exhibi_t 1).
Ill. Findings of Fact
Based on the evidence, I find that the following facts were
established:
1. Citation No. 341641 was issued as a result of a fatal accident
which occurred on July 11, 1978.
2. Mr, Charles McNair, who was employed by the respondent at its
Berkeley Pit, was fatally injured when he became entangled in a conveyor
belt. (P's Exhibit 1).
3. Mr. Robert Henderson, a foreman at the Berkeley Pit when the
accident occurred,observed Mr. McNair on the day of the accident when the
latter turned in his time card. At that time Mr. Henderson did not observe
anything unusual about Mr. McNair nor did he smell any alcohol. (Tr.
19-21).
4. A co-worker of the deceased, Mr. Walter Brown, saw the deceased on
the bus used to transport the employees to their work areas. Mr. Brown did
not notice anything unusual about Mr. McNair and testified that there was
no indication that Mr, McNair had been drinking. (Tr. 14-15).
5. There were no witnesses to the fatal accident.
IV, Discussion
Citation No, 341641~/ charges the respondent with having violated
mandatory safety standard 55.20-1. The standard provides th.at:
55.20-1 Mandatory. Intoxicating beverages and narcotics
shall not be permitted or used in or around mines. Persons
under the influence of alcohol or narcotics shall not be
permitted on the job.

1/ Citation No. 341641 reads as follows: On July 11, 1978, Charles W.
McNair was fatally injured when he became entangled in the troughing
rollers of the number 2 conveyor belt. An autopsy of the body of Charles
McNair was ordered by the Silver Bow County Coroner's Office. The autopsy
report, dated July 13, 1978, and issued by Silver Bow General Laboratory,
Continental Drive, Butte, Montana, showed the blood alcohol level on the
post mortem sample of blood at a level of 0.12%. Charles McNair was·
allowed on the job while under the influence of alcohol on July 11, 1978.

1905

The sole issue is whether the respondent violated 55.20-1 by
permitting the deceased on the job while he was under the influence of
alcohol.
The phras·e "under the influence," as used in 55. 20-1, has not been
defined any place within the standards or the Act. However, the petitioner
urges application of the State ofMontana's statutory blood alcohol level
presumption.
The State of Montana, the situs of the accident involved herein, has
adopted a standard which states that anyone with a .10% blood alcohol level
is presumed to be "under the influence." This statute is contained in
Tit le 61 of the Montana Code Annotated under "Driving Under Influence of
Alcohol or Drugs." ·However, this presumption applies only to criminal
prosecutions. MCA § 61-8-401.
I find no authority, nor has the petitioner in this case presented
any, to the effect that a presumption found in a criminal statute can be
used in an administrative proceeding. To t~e contrary, the cases appear to
hold otherwise. In the case of City of Sioux Falls v. Christensen, 116
N.W. 2d 389, (S. Dak. 1962), the Supreme Court of South Dakota held that,
Our presumption statute is clearly limited to criminal prosecutions thereunder for the offense of driving a motor
vehicle while under the influence of intoxicating liquor .•.
Consequently, the presumptions established therein have no
application to prosecutions for violations of municipal
ordinances. p. 390.
The Supreme Court of Arizona in the case of Mattingly v. Eisenberg,
285 P. 2d 174 (Ariz. 1955) reached a similar result. The court held that
the statutory presumption of when a driver is under the influence applied
only in criminal prosecutions of persons charged with driving while under
the influence and did not apply to civil cases. See also Patton v. Tubbs
402 P. 2d 355 (Wash. 1965).
If the Montana presumption were to be applied in this case it would
place an undue burden on mine operators across the country. Not only would
they be forced to search the statute books for definitions that might be
found to apply to them in the course of federal administrative hearings,
but they would also be subject to the presumptions and definitions
contained in state criminal codes.
Furthermore, I cannot believe that Congress intended that we look to
state law in order to enforce what was intended to be a uniform piece of
legislation. As the United States Supreme Court has held:
We must generally assume, in the absence of a plain indication
to the contrary, that Congress when it enacts a statute is not
making the application of the federal act dependent on state
law. That assumption is based on the fact that the application
of federal legislation is nationwide. Jerome v. U.S., 318 U.S.
101, 104 (1943). See also NLRB v. Natural Gas Utility District,
402 U.S. 600 (1971 •

1906

There is no indication in this instance that Congress intended that a state
presumption be applied.
At the hearing, counsel for respondent stipulated to the admissibility
of the autopsy report (Tr. 4 & 8). Now, however, respondent contends that
the results of the chemical blood test are inadmissible~ Respondent argues
that the admissibility of the autopsy report and that of the chemical
analysis are two entirely different matters. I conclude that since the
autopsy report, which contains the chemical analysis, was admitted into
evidence at the hearing counsel cannot now object to the admission of the
blood tests contained in the autopsy report even though he reserved all
legal objections.
The only evidence that the deceased miner was "under the influence"
is the autopsy report offered by the petitioner, which showed under the
heading "Chemical Analysis", that the miner's "Blood alcohol level on the
post-mortem sample of blood showed a level of 0.12%." Various states have
accepted the premise that blood alcohol levels of amounts less than the
above constitute grounds that a driver of a motor vehicle may be presumed
to be. "under the influence of alcohol or drugs" for criminal prosecution.
However, in this case, without additional evidence or proof, the finding of
the autopsy report cannot be found to warrant a decision that the miner
herein was "under the influence" as provided in the standard.
Medical testimony might have been of value in a case of this type in
order to properly interpret the autopsy report. The District of Columbia
Court of Appeals in the case of Lister v. England 195 A. 2d 260 (D.C. App.
1963) held that blood analysis results are not even admissible unless
introduced by expert testimony. Because, as the court stated, "without
benefit of such testimony or resort to the statutory standards the result
of the analysis is meaningless." See Also Holt v. England 196 A. 2d 87
(D.C. App. 1963) and City of Sioux"""Fa°lTSV'. Christensen, supra.
In that I find that the State of Montana statute relating to the
presumption of driving while under the influence does not apply here, and
in the absence of that presumption or other evidence to interpret the
chemical analysis of the autopsy report, I must conclude that petitioner
failed to establish a prirna facie case that the miner was "under the
influence of alcohol or drugs" at the time of the fatal accident.
Therefore, it is hereby ORDERED that Citation 341641 be vacated and
the case DISMISSED.

'---

/

/7

z:?.c_.'.-i.q,t .L 0

> . - . ff
, e---/~:,{_.

<;:'"'

Virgil E . (V' ail
Administrative Law Judge

1907

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

1908

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER. COLORADO 80204

4 l!JBJ
)

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

CIVIL PENALTY PROCEEDING

)
)
)
)
)
)
)
)

DOCKET NO. WEST 80-348-M
A/O No. 04-04191-05003 H
DOCKET NO. WEST 80-349-M
A/O No. 04-04191-05004 W

Petitioner,
v.
TEHAMA COUNTY EXCAVATING,
Respondent.

MINE: Lattin Pit & Mill

DECISION
Appearances:
Marshall P. Salzman, Esq., Office of the Solicitor, United States
Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco,
California 94102
For the Petitioner,
Fred Lindauer, Pro Se
P.O. Box 615, Red B~ff, California 96080
For the Respondent
Before: Judge Virgil E. Vail
I. Procedural Background
The above-captioned civil penalty proceedings were brought pursuant to
Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a) [hereinafter referred to as "the Act"].
Pursuant to notice, a hearing on the merits was held in Redding,
California on November 25, 1980. Willie Davis, federal mine inspector,
testified on behalf of the petitioner. Fred Lindauer, President of the
respondent company, represented the company and appeared as a witness. Roy
Cone also testified on behalf of the respondent.

1909

II. FINDINGS OF FACT
I find that the evidence establishes the following facts:

1. Respondent's operation involves removal of aggregate from stream
beds. The aggregate is then transported to a screening plant. At the
screening plant the aggregate is separated according to size."(Tr. 9).
2. The Caterpillar 966 front end loader, which is the subject of both
the withdrawal order and the citation involved herein, is approximately 22
feet long, 10 feet high, 8 feet wide and weighs 20 tons. (Tr. 10).

3. On August 28, 1979, Willie Davis, federal mine inspector, asked
the operator of the 966 Caterpillar to test the brakes. The brakes would
not stop the machine. In order to stop the heavy p1ece of equipment, the
operator had to use the gear lever. For example, if the equipment was
moving forward he would shift into reverse and vice versa. (Tr. 11).
4. Davis informed the operator th.at he was going to issue a 107( a)
withdrawal order and the operator would have to cease working. At that
time the operator got in a car and left the area. (Tr. 12).

5. Approximately ten minutes later Mr. Lindauer appeared. Although he had
been notified that the screening plant had b~en shut down, he proceeded to
load two trucks using the 966 Caterpillar. (Tr. 13 and 25).
6. Not until after he had finished loading the trucks did he inquire
of Mr. Davis as to why a withdrawal order had been issued. (Tr. 13). Mr.
Lindauer then stated that he had no intention of shutting down his
operation. (Tr. 15).
7. Lindauer did tell the operator to check the fluid levels on the
brakes and radioed for Roy Cone, a heavy eq.uipment mechanic, to work on the
brakes. (Tr. 16 and 30).

8. When Cone arrived at the screening plant, the brakes on the loader
were inoperable. (Tr. 33). He repaired an oil leak and also a cracked line
or cylinder in the brakes. (Tr. 30).

9. On August 30, 1980, Davis returned to the site and again asked
the operator to test the brakes. The brakes were still inadequate and
would not stop the equipment. (Tr. 18). The operator told Davis that
mechanics had been out twice to work on the brakes, but had not been able
to fix them. (Tr. 18).
10. When Davis returned on September 11, 1980, and the brakes were
still not fixed he issued a citation for violating the withdrawal order.
(Tr. 19). A week later he returned to inform Mr. Lindauer that they were
in the process of seeking a temporary injunction, in the United States
District Cour:t, to enjoin him from operating the 966 Caterpillar. (Tr. 20).

1910

III. DISCUSSION
Respondent contends that Tehama's operation is not within the coverage
of the Act. (Tr. 7). Neither side offered any evidence on this point.
However, the Act defines its coverage as being,
Each coal or other mine, the products of which enter Cormnerce,
or the operations or products of which affect commerce, and
each operator of such mine, and every miner in such mine shall
be subject to the provisions of this Act. Sec. 4.
It has long been established that sand and gravel operations are covered by
the Act. In the case of Marshall v. Wallach Concrete Products, Inc., et
al., the U.S. District Court held that sand and gravel operations are
"mines" within the meaning of Sect ion 3(h) ( 1) of the Act, and accordingly
are within the coverage of the Act. 1 BNA MSHC 2337 (1980).
It has also been established that even though the products of a mining
operation are not sold outside of the state where they are mined they are
competing with interstate products. Therefore, there is what has been
termed a "ripple effect" and it has been established that the products do
affect cormnerce. Marshall v. Bosack 1 BNA MSHC 1671 (1978) See Also
Wickard v. Filburn, 317 U.S. 111 (1942).
Also, Respondent had been issued citations prior to the ones involved
in these cases and there is no evidence that jurisdiction was ever
challenged.
In light of the above, I conclude that respondent is covered by the
Act and that I have jurisdiction over these proceedings.
The 107(a) irmninent danger order was issued on August 28, 1979. 1/
There is no evidence in the record to the effect that the brakes were
working. Mr. Lindauer testified that as soon as he was notified of the
problem he called for a mechanic. (Tr. 25). Roy Cone, the mechanic,
testified that the brakes were inoperable when he arrived. (Tr. 33).

1/ 381640 was modified on the same day, August 28, 1979, because the
inspector had incorrectly designated the type of action as being taken
under section 104(a) and the standard being violated as 56.9-2. The type
of action was modified to read; 107(a)-104(a) and the part and section was
changed to 56.9-3.

1911

The loader was being operated on a pub 1 ic road.
There were low banks
approximately three feet high and there were trucks and people walking in
the same area. (Tr. 11 and 12).
Since the operator did not have complete
control of the loader, I conclude that the operation of the loader
presented an imminent danger not only to the operator, but to others in the
vicinity.
Therefore, the withdrawal order is affirmed.Citation no. 381641 was issued on September 11, 1979 after Davis
requested that the operator test the brakes, and again found that they were
inadequate to stop the loader.
The citation alleges that the respondent
was operating the loader in violation of the withdrawal order.
Respondent failed to offer any testimony that would point to the
brakes being in good condition on the day the citation was issued. Mr.
Lindauer testified that he just assumed the brakes had been repaired after
the withdrawal order had been issued. (Tr. 26).
Roy Cone stated that he
worked on the brakes subsequent to August 28, 1979, but could not remember
the exact date or what work had been performed. (Tr. 33).
Based on the uncontradicted testimony of the inspector, I find that
the citation should be affirmed.
Penalty Assessment
I find that the respondent is a small operator within the meaning of
the Act. The company operates six months of the year and has only three
employees. (Tr. 7). Prior to the violations involved herein, respondent
had been issued only four citations. (Tr. 20).
Based on this fact, I
conclude that respondent had a small history of violations.
There being
nothing contrary in the record, it is assumed that the penalties imposed
will not affect respondent's ability to continue in business. The
negligence of the respondent in both instances was great.
There was no
explanation offered, nor is there one that I can think of that would
justify the operation of a heavy piece of equipment without adequate
brakes. This is especially so considering that it was being operated on a
pub lie road.
Based on the foregoing, I hereby impose a penalty of $500.00 for
withdrawal order no. 381640.
In considering an appropriate fine for
Citation no. 381641, I would point out that the respondent failed to act in
good faith.
Not only did the company not abate the condition upon which
the withdrawal order was based, but it continued to operate the machine.
It was not until action was initiated in the United States District Court
that respondent corrected the defective brakes.
Based on respondent's
continued neglect of the matter, I find that $1,000.00 is an appropriate
penalty.

1912

ORDER
Respondent is Ordered to pay the assessed penalties of $1,500.00
within forty days of this decision.

v*?~
Administrative Law Judge

Distribution:
Marshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
Sa~ Francisco, California
94102
Tehama County Excavating
Mr. Fred Lindauer, President
P.O. Box 615
Red Bluff, California 96080

1913

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

22041

AUG n 1981

Notice of Contest

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. WEVA 81-259-R

v.

SECRETARY OF LABOR,
Nnm SAFETY AND HEALTH
AO:UNISTRATION (MSHA) ,
Respondent

Loveridge Mine

SECRETARY OF LABOR,
NINE SAFETY AND HEALTH
A0:1INISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. WEVA 81-414
A.O. No. 46-01433-03117V
Loveridge Mine

CG;JSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

James P. Kilcoyne, Jr., Esq., Office of the Solicitor,·
U.S. Department of Labor, Philadelphia, Pennsylvania,
for MSHA;
Jerry F. Palmer, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Consolidation Coal Company.

Before:

Judge Merlin

This consolidated proceeding is a notice of contest by the operator
challenging a section 104(d)(2) withdrawal order and a petition for the
assessment of a civil penalty filed by the Solicitor based upon the
alleged violation set forth in the order. 1/
A hearing was held on July 7, 1981 at which the parties represented
by counsel appeared and presented documentary and testimentary evidence.

1/

The petition for penalty assessment originally contained two violations. The Solicitor previously filed a motion to sever the second
violation which did not involve the same condition as was contained in
the notice of contest proceeding. I have granted the motion to sever in
? separate order so that the notice of contest and penalty docket numbers
herein only involve the same situation.

1914

At the hearing the parties agreed to consolidate these cases for
hearing and decision and to the following stipulations:
(1)

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

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

(3)

I have jurisdiction of this case pursuant to the 1977 Act.

(4) The inspector who issued the subject order was a duly authorized
representative of the Secretary, and all witnesses who will testify are
accepted generally as experts in coal mine health and safety.

(5) True and correct copies of the subject order, and termination
thereof, were properly served on the operator in accordance with the
Act.

(6) There was no intervening clean inspection subsequent to the
issu.::mce of the underlying (d) (1) withdrawal order, and the subject
(<l)(2) withdrawal order.
(7) There exists a.validly issued (d)(l) citation and a validly
issued (d)(l) order underlying the subject order.
(8) Imposition of any penalty will not affect the operator's
ability to continue in business.
(9)

The operator is large in size.

(10) The alleged violation was abated in good faith.
(11) The operator's history is average and non-contributory to the
amount of any penalty that might be assessed herein (Tr. 4-5).
At the conclusion of the taking of evidence counsel waived the
filing .of written briefs and agreed instead to make oral argument
(Tr. 130). Extensive oral argument was given (Tr. 130-171). I advised
the p:irties that I would issue a decision after the administrative
tr:inscript was received (Tr. 169).
Discussion and Analysis of the Evidence
Findings and Conclusions
The order sets forth the condition or practice as follows:
Float coal dust black in color has been allowed to accumulate
on the rock-dusted surface of the floor and ribs of the No. 8
im.~ediate return entry for the 7 South mains (055) section and

1915

crosscuts between the No. 8 and No. 9 entries for a distance of
approximately 1,000 feet. The floor in middle of No. 9 entry had
been dragged, but float coal dust was still on the sides of the
floor and ribs of the No. 9 entry.
The key to understanding this case is operator's exhibit No. 2.
This exhibit consists of ten strips of paper ranging in color from pure
white (No. 1) to jet black (No. 10). The middle strips of paper are,
therefore, varying shades of gray which become darker as the numbers go
higher. The inspector testified that a violation exists when the float
coal dust appears as either "9" or "10", i.e. black. He further testified
that in all the areas described in the order which he traversed, the
float coal dust was black except, as noted in the order, for the middle
of the No. 9 entry which had been dragged. Accordingly, the inspector
testified that he cited a violation.
The inspector's evaluation of the color of the float coal dust is
contradicted by the operator's witnesses. First, and most persuasively,
the C'.'11..'A fire boss testified that when he was taking air readings he saw
the entries shortly before the inspector and that they were only like
the i\o. 5 or 6 strips, i.e., at most medium gray. The union fire boss
is a man of many years experience and was a most believable witness.
His statements alone wou~d compel a finding of no violation and vacation
of the order.
Hnwever, the testimony of the fire boss does not stand alone.
The
day shift section foreman testified that immediately after the order was
issu1...·d he walked the entries and judged them to be about a "6" in color.
When recalled to the stand he stated he did not see any footprints which
had disturbed the float coal dust in the entries and diminished the
degree of blackness of the float coal dust. Accordingly, the evidence
of tl1is witness also conflicts with the inspector's estimate of the
co]or of the float coal dust.
So too, the midnight shift section foreman estimated the color as
only a "7". Admittedly, he stated that he thought the color of the
float coal dust at a "7" would be a violation whereas a "6" would not.
With respect to the color of the float coal dust, this testimony is
therefore, similar to that of the fire boss and the section foreman.
Insofar as the degree of blackness which is necessary to constitute a
vio1'1tion js concerned, it is the inspector and not the operator's
midnight shift section foreman who is charged with interpreting and
applying the standard. And it most certainly is not my function to
for:::1ulate and apply to the operator a more stringent test than the
inspector did. As I advised counsel during oral argument, this estimate
is germane because it is a measure of the truthfulness of the midnight
shift section foreman that he set forth a tougher standard than did the
inspector himself. But this does not mean that such a circumstance
would constitute a violation where according to MSHA's own authorized
representative it would not.

1916

Three more witnesses also testified on behalf of the operator.
They estimated the color of the float coal dust as ranging from "5" to
"7" on the color scale. There was some suggestion that by the time some
of these witnesses saw the area the float coal dust may have been
churned up and thereby lightened by individuals walking on it, but there
is no definitive evidence on this point and I find that this did not
occur.
I recognize that the operator's witnesses did not agree exactly on
the coloration of the float coal dust, but their estimates of from "5"
to "7" are well within the range of judgment which could be expected
since the gradations were so close. Indeed, I find the slight variations
between the operator's witnesses enhanced rather than detracted from
their credibility. It is to be remembered that at the hearing upon the
Solicitor's request the operator's witnesses were sequestered. When
watching these men select the appropriate color, it appeared to me that
they were truly trying to remember as best they could the way the float
coal dust looked on January 12.
In light of the foregoing, I find the operator's evidence more
credible and based upon it I conclude that at most the float coal dust
was medium gray and that therefore under the standard as applied by the
inspector a violation did not exist. ]:_!
ORDER
Accordingly it is hereby ORDERED that the subject order be and is
hereby VACATED, that the notice of contest be and is hereby GRANTED and
that the petition for assessment of a civil penalty be and is hereby

'

DIS>IISSED~ ~-~~\\oJ_l
c--\ c:_,_vJ ''- ~
Paul Merlin
~
Assistant Chief Administrative Law Judge

2/ In may be that the standard for determining how dark or how black
float coal dust should be in order to constitute an accumulation is too
i~precise.
It may also be that in this case the inspector used too
restrictive a standard. However, I only can act on the record before me
and in any event, as I have already stated, the formulation of guidelines
for judging when an accumulation of float coal dust exists is beyond the
purview of this case and beyond the authority of an administrative law
judge. \~1at is clear here is that under the standard used by the
inspector, the great weight of evidence demonstrates that a violation
did not exist.

1917

Distribution:
James P. Kilcoyne, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Jerry F. Palmer, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

1918

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

AUG 1 o ·~

22041

Docket No. D 81-1

Disciplinary Proceeding
(Minerals Exploration Company)

DECISION
Appearances:

John A. Macleod, Esq., Crowell and Moring,
Washington, D.C.;
Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia.

Before:

Judge Merlin

The above-captioned matter came on for consideration as scheduled
on August 6, 1981. After hearing from those involved, I rendered the
following bench decision:
This case is a referral for possible disciplinary proceedings given
by the Solicitor to Judge John A. Carlson, a judge of the Commission,
during a conference in chambers on June 29, 1981, and transmitted by
Judge Carlson to the Commission by memorandum d~ted July 13, 1981.
By order dated July 23, 1981, the Commission referred the case to
the Chief Administrative Law Judge and the Chief Administrative Law
Judge has, in turn, assigned the case to me.
This matter arises out of certain remarks made by counsel for the
operator during a telephone conference call on June 22, 1981, participated
in by Judge Carlson, his law clerk, an attorney in the Solicitor's
office, a miners' .representative and, of course, counsel for the operator.
The facts are set forth in the joint stipulations submitted to me
by the Solicitor and by the attorney retained by counsel for the operator.
I have reviewed the stipulations and have accepted them. They have been
made a part of the record.
As set forth in the stipulations, the salient facts are briefly as
follows: Judge Carlson was presiding in a review proceeding challenging
the validity of a section 107(a) withdrawal order issued against Minerals
Exploration Company. The conference call was specifically concerned
with the union's participation in the hearing which was already underway.
Of the two miners' representatives involved, one was on sick leave and
one was on disability-maternity leave at the time. According to counsel
for the operator, the company's personnel policy required that employees'

1919

activities while on leave be consistent with their leave status. For
this reason, therefore, counsel for the operator represents that during
the telephone conference call he intended to alert the miners' representative to possible adverse personnel action if the miners' representatives
traveled to Denver for the hearing without first changing their leave
status. During the course of the conference call, counsel for the
operator used such words as "discipline" and "discharge." Counsel for
the operator has stated that he did not intend to interfere with the
union's right under the Mine Safety Act and the Commission's.regulations
to participate in the hearing. Regardless of his intent, however, it
appears that his remarks could have been, and were, in fact, interpreted
by some of the other participants to the conference call as a deterrent
to the union's participation in the review proceeding.
The attorney retained by counsel for the operator has stated at
length this morning that counsel did not intend to prevent or frustrate
the union's participation in the review proceeding, and that a misunderstanding of the words used occurred. In addition, this morning
before me counsel for the operator also has stated that such was not his
intent, and he has expressed regret for the untoward consequences of his
remarks and for any inconvenience caused to the Commission and to me.
It must be stated that in light of what transpired during the
telephone conference call, Judge Carlson's concern as evidenced in the
conference in chambers was undoubtedly well-founded. So, too, under the
circumstances, the Solicitor's referral was appropriate.
One has only to undertake a cursory reading of the Mine Safety Act
and the regulations of the Commission to become readily aware that
throughout the statutory and regulatory scheme, participation by miners
and miners' representatives is not only allowed but also approved of and
encouraged in the strongest manner possible. Attorneys who deal with
this law and who practice before the Commission must be expected to be
alert and sensitive to these participatory rights which are so integral
a part of mine safety as envisaged and enacted by Congress.
Over and above the particular statute involved here is the responsibility of an attorney toward potential witnesses and parties. One of
counsel's most fundamental responsibilities, if not his most fundamental
responsibility, is his duty to insure the integrity of the administration of justice. Accordingly, when counsel speaks, he must think not
only of what he means by his statements, but of how his statements will
be perceived and interpreted by those to whom he is speaking, especially
when they are not attorneys.
The remarks of counsel for the operator this morning demonstrate that
he now is aware of these important considerations. As already noted, I
have accepted the stipulations. I further accept the representations of

1920

counsel for the operator that he did not intend his remarks to have any
effect contrary to the Mine Safety Act and to the Commission's regulations
regarding union participation. Yet it cannot be denied that his words
may well have had and indeed, did have the proscribed effect, even if he
did not so intend. Therefore, it is clear that counsel misspoke.
Counsel must be more careful in the future. It is not only what counsel
says but what others hear. The care which counsel exercises must be
particularly intense when critical issues such as we see here today are
involved.
As already indicated, I accept counsel's remarks and apology this
morning. I note that the remarks made during the conference call on
June 22, 1981, occurred during the first case in which counsel appeared
under the Mine Safety Act and the Commission's regulations. I also note
that they occurred during a conference call to which the presiding judge
and his law clerk themselves were participants. I am confident that
there will be no repetition of any such unfortunate situation involving
counsel.
In light of the fact that counsel did not intend to violate the
Mine Safety Act or the Commission's regulations, in view of his statements here this morning and because this was his first appearance in a
Mine Safety Act proceeding, I conclude that no ~isciplinary proceedings
are warranted.
There is one further matter which should be mentioned. This concerns
not only the particular matter before me today but disciplinary cases
generally. Both the Solicitor and the attorney retained by counsel for
the operator have pointed out that at present; the Commission's regulations
do not set forth how disciplinary proceedings are to be conducted. For
instance, the regulations do not indicate if an individual referring a
matter for disciplinary proceedings has the responsibility of presenting
evidence in support of possible disciplinary action. Of course, circumstances vary. If an Administrative Law Judge of the Commission refers a
matter for possible disciplinary proceedings, he should not be expected
to present the evidence himself in any resultant hearing. On the other
hand, the situation might be different where the Solicitor or an operator
refers a matter for possible disciplinary proceedings. I recognize that
under existing regulations the individual against whom possible disciplinary proceedings are considered is given adequate notice, opportunity
for rep.ly, and a hearing with opportunity to present evidence and cross-:
examine. Nevertheless, the overall context in which these rights are to
be exercised is not delineated. Certainly, the judge who presides in a
disciplinary matter should not have any other function. Th§ situation
obviously has many facets. I agree that the matter is worthy of attention
and consideration.

1921

The bench decision issued August 6, 1981 is hereby AFFIRMED and
this matter is DISMISSED.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
John A. Macleod, Esq., Crowell & Moring, 1100 Connecticut Ave.,
N.W., Washington, DC 20036 (Certified Mail)
Page H. Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Bevelyn Suter, President, Progressive Mine Workers of America,
Local 1979 B, P.O. Box 359, Rawlins, Wyoming, 82301 (Certified
Mail)
Judge John A. Carlson, Federal Mine Safety and Health Review Commission,
Office of Administrative Law Judges, 333 West Colfax Avenue, Suite 320,
Denver, Colorado 80204 (Certified Mail)

1922

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

AUG 12 1001
Complaint of Discrimination

SECRETARY OF LABOR,·
HINE SAFETY AND HEALTH
AmfINISTRATION (MSHA),
ON BEHALF OF THEODORE HAZZARD,
Complainant

Docket No. WEVA 81-392-D
Pocahontas No. 3 & 4 Mine

v.
CANNELTON INDUSTRIES, INC.,
Respondent
DECISION AND ORDER
This is a complaint for discrimination that came on for hearing .on
August 4 and 5, 1981 in Beckley, West Virginia. The gravamen of the
charge was that the operator attempted to interfere with a miner's right
to seek correction of. what were claimed to be unsafe mining practices
and conditions in the 4-B and Roadside Mines (Pocohantas No. 3 and 4 Mine).
The charge arose in the context of a sharp disagreement between the
complainant and MSHA's Subdistrict Office in Princeton, West Virginia
over the timing and extent of fire drills prescribed by 30 C.F.R.
75.1704-2(e), and the requirement for the designation, approval and
inspection of secondary escapeways, 30 C.F.R. 75.1704-1, -2; 1./ 30 C.F.R.
75.1707.
A third consideration that directly affected the actions of the
parties involved two petitions for modification of the requirement of
30 C.F.R. 75.305 for weekly methane examinations of at least one entry
·1/ MSHA has interpreted 30 C.F.R. 75.1704-2(e) as requiring the
evacuation of all miners from the working face to the loading point every
90 days. With respect to the designation of approved escapeways,
Section 317(j)(4) of the Act, 30 C.F.R. 75.1707 provides that belt and
track or trolley haulage entries b.e separated from escapeways by relatively airtight stopping materials in order to provide a practically
smoke free escapeway in the event fire should occur in the track and/or
belt entries. MSHA Underground Inspection Manual II-619. Despite this, MSHA
has permitted the track and belt entries to be designated as escapeways in
botl1 the Roadside and 4-B sections. This conflict between the requirements
of the law and MSHA's practice has been a source of continuing friction between
the Hine SJ.fety Conunittee and management at this mine. The trial judge
recommends that the Chief of MSHA's Safety Division work with the District
and Subdistrict.Offices to effect a clarification and resolution of what
has been a serious source of contention between labor and management at
this mine.

1923

of each intake and return airway in its entirety. The first petition
involved the left air return in both the 4-B and Roadside Sections.
It was granted in September 1979 and permitted the monitoring of the
airflow on a daily basis·at specified stations instead of traveling
the entire entry which was deemed unsafe. The second petition filed in
April 1980 requested a waiver of the same requirement on the right
return in only the 4-B section. Because of its concern over designation
of the track and belt entry as a secondary escapeway, its lack of confidence
in air monitoring systems, ]:_/ and its belief that the right return is
or can be made ·travelable, the Mine Safety Committee and Local 6029 of the
ill!WA requested the International Union in Washington appeal MSHA' s grant
of the second petition in November 1980. At the time of the hearing,
the complainant and the local union were under the impression that the
decision on the second petition had not become final. Neither counsel was
aware of its status.
On the merits, the evidence unequivocally established that the
manifold misunderstandings and conflicts between complainant and other
members of the Mine Safety Committee and with MSHA, management and the
State Department of mines over walkaround rights, fire drills, evacuation
procedures, and the petitions for modification when coupled with the
stresses that stemmed from the explosion and resulting disaster at the
Ferrell ~line and numerous grievances generated by a realignment of the
labor force at several of the operator's mines led to a tense labor
relationship that culminated in a heated verbal exchange between complainant
and the operator's general superintendent of mines on December 17, 1980.
Fortunately there is no need to detail this event. Suffice it to say
that what was said by the management representative went beyond the pale
of permissible legal reaction to what he in good faith believed to be an
unjustified provocation. Much of the obvious ill feeling that prevailed
at the beginning of the hearing was dispelled in the end by the opportunity
afforded all concerned to thresh the matter out and to get things off
their chest. For their candid cooperation in this inquiry counsel and the
parties, especially Mr. Spengler, MSHA's Subdistrict Mgr. are to be commended.
Because the parties agreed to settle this matter on the terms set
forth in the consent order entered on the record and adopted and confirmed
in this decision, the parties are in a position to make a new beginning
and to commence the work of reconciliation of their diff~rences in an
atmosphere cleansed of the poisonous suspicions of the past.
For these reasons, I find the settlement agreed upon in accord
with the purposes and policy of the Act.
Accordingly, it is ORDERED that:
1.

Cannelton Industries, Inc., its directors, officers, agents
and employees be, and hereby are, ENJOINED and DIRECTED

2/ This stemmed from the failure of such a system at Westmoreland's
Ferrell ~line in November 1980 to prevent a lethal buildup of explosive
gas.

1924

TO CEASE AND DESIST from making any and all statements,
verbal or written, designed to interfere with, coerce
or restrain any miner from freely exercising rights guaranteed
by the Mine Safety Law, including the right to make, file or
report alleged safety or health violations or dangers to
management, MSHA or the appropriate State authorities.
2. Cannelton Industries, Inc. pay a penalty of $1,500 for the
violation found on or before Friday, August 21, 1981.
3. Cannelton Industries, Inc. immediately post on the Mine
Bulletin Board or in places where notices to employees are
customarily posted at the Pocohantas No. 3 and 4 Mine
(Roadside and 4-B Sections), and maintain the same for
thirty (30) consecutive days from the date of posting, a copy
of this decision and order.
Finally, it is ORDERED that upon payment of the penalty agreed
upon and subject to enforcement of this injunction under the
contempt powers and procedures of the United States Courts of
Appeals, the aforesaid consent order and this confirming decision
be deemed a final disposition of this matter.

Administrative Law Judge
Distribution:
William C. Miller, II, Esq., Cannelton Industries, Inc., Box 1226,
1250 One Valley Square, Charleston, WV 25324 (Certified Mail)
James P. Kilcoyne, Esq., U.S. Department of Labor, Office of the
Solicitor, 14480 Gateway Bldg., 3535 Market St., Philadelphia, PA
19104 (Certified Mail)
Theodore H. Hazzard, Box 21, Superior, WV 24886 (Certified Mail)
Doug Tolley, Vice President, Cannelton Industries, Cannelton, WV
25936 (Certified Mail)

1925

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400 .
DENVER, COLORADO 80204

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

l

~ •
.

~ .

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 81-94-M

)
)
)

THE ANACONDA COMPANY,

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)
)

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)

v.

1"u 0 1 •., ,981

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. '!Ii.·

I

MSHA CASE NO. 24-00689-05018
MINE:

Weed Concentrator

Respondent.
)
~~~~~~~~~~~~~~~~~~~~-)
ORDER
Respondent has filed a motion to dismiss this case. As reason therefor,
respondent states that it has been prejudiced by the delay of nearly two years
between the time the citation in question was issued and the assessment of a
penalty. The Secretary in opposition to the motion argues that the respondent
was not prejudiced by the delay as shown by the fact that it had retained
sufficient evidence to persuade the MSHA assessment officer to reduce the
penalty at a conference held on November 3, 1980.
The Federal Mine Safety and Health Act requires the Secretary to notify
the mine operator of a proposed penalty within a reasonable time after the
issuance of a citation. The remarks of the Senate Committee clarify the purpose
for this requirement.
To promote fairness to operators and miners
and encourage improved mine safety and health
generally, such penalty proposals must be forwarded to the mine operator and mine representative
promptly. The Committee notes, however, that there
may be circumstances, although rare, when prompt
proposal of a penalty may not be possible, and the
Committee does not expect that the failure to
propose a penalty with promptness shall vitiate any
proposed penalty. S. Rep. No. 95-181, 95th Cong.,
1st Sess. 34 (1977).
The Commission reasoned in a recent decision that the abovk expresserl
intent of Congress demonstrates their overriding concern with effective
enforcement, and, thus a citation should be vacated only when to do so implements the remedial purpose of the Act. The Commission also recognized the
secondary purpose of protecting mine operat_or-S-from stale claims. Sec. of Labor
v. Salt Lake County Road Dept., Docket No. WEST/79-365-M (July 28, 1981).

1926

The Commission established a two prong test to determine if the late filing
of the proposal for penalty addressed to the Commission is in substantial
compliance with the Act and, therefore, should not result in the dismissal of
the case. The Secretary must show that there was adequate cause for the delay.
The mine operator must show that it has been prejudiced by the delay. These
two requirements are to be balanced against each other with the scales weighing
heavily on the side of enforcement. However, the objective of effective
enforcement can be thwarted by the Secretary's inexcusable delay over a
substantial period of time. The Commission warned the Secretary against any
unwarranted dilatory action.
The above test is directly applicable here. Congress perceived that the
prompt assessment of a penalty was necessary for effective enforcement. In the
present case, the delay of nearly two
years is on its face a blatant disregard
I
of this objective. Contrary to th~ Secretary's statement in its response to
the motion, Section 815(a) of the ~ct provides the statutory authority for the
vacation of a citation where the Secretary has been so dilatory in assessing a
penalty that effective enforcement of the Act is impossible.
In the present case the citation was issued on December 5, 1978. Due to
the delay in the assessment of a penalty, this case was not ripe for the
adjudication of the penalty until the filing of the proposal for penalty on
February 5, 1981. The Secretary offers no reason for the delay. Such a lengthy
delay is inherently prejudicial to the operators' preparation of a proper
defense.
For the above stated reasons, the motion to dismiss is granted.
is dismissed with prejudice.

(

/John J. M;orris
/.(\'.dministrgtive Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor
United States Department of Labor
1585 Federal Building, 1961 Stout Street
Denver, CO 80294
Karla M. Gray, Esq., The Anaconda Company
Post Office Box 689
Butte, Montana 59703

1927

This case

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

22041

AUG 1 4 19\ll
Civil Penalty Proceedings

SECRETARY OF LABOR,
HINE SAFETY AND HEALTH
AD'.'UNISTRATION (MSHA),
Petitioner

Docket No. CENT 80-231-M
A/O No. 41-00013-05004

v.
Docket No. CENT 80-232-H
A/O No. 41-00013-05005

CHEMICAL LIME, INC.,
Respondent

Mine:

Clifton Quarry and Plant

DECISION
On January 19, 1981, the Petitioner filed a motion for summary decision
based on a record jointly stipulated by the parties. This motion was resubmitted with amendments on May 4, 1981. As grounds for its motion, Petitioner
asserted the following:
1. The parties have stipulated to all material facts
including jurisdiction, coverage, the existence or occurrence of the alleged violations, and the appropriateness of
the penalties proposed.
2. The only remaining issue to be resolved by the
Review Commission is whether Defendant, as owner-operator of
a mine, can be cited for violations of the Act committed by
its independent contractors while employed at Defendant's
mine property. This question has been addressed and answered
most recently in Secretary of Labor v. Old Ben Coal Company,
(FMSHRC Docket No. VINC 79-119), 1 MSHC 2177, and Secretary
of Labor and United Mine Workers v. Monterey Coal Company
(FHSHRC Docket No. HOPE 78-467), 1 MSHC 2232 where the
Commission held that as matter of law, owner-operators can
be held responsible for violations of the Act committed by
its contractors. As the present case is indist.inguishable,
at least with respect to the independent contractor issue,
from Old Ben, and Monterey Coal, supra, the Secretary is
entitled to a Summary Decision affirming the contested
citations, as a matter of law.
In the Joint Motion for Submission of Proceedings upon Stipulated Facts,
the parties admitted that no genuine issue remained as to any material fact.

1928

The submitted stipulations are as follows:
The following matters are hereby agreed and stipulated
to by and between the parties hereto for consideration in
connection with any Motion to Dismiss, Motion for Summary
Judgment or Decision filed or to be filed herein, as well
as any hearing or trial herein and any appeals resulting
from rulings on such motions, hearing or trial. Each of the
parties reserves the right to disavow all or any part of this
Stipulation in connection with proceedings in any action other
than those in connection with any 11otion to Dismiss, Motion
for Summary Judgment or Decision, as well as any hearing or
trial and any appeals resulting from rulings thereon, and no
matters set forth in this Stipulation shall have or be given
any collateral estoppel or res judicata effects in any other
action or proceeding, exceptl:he collateral estoppel or res
judicata effect of the judgment or decision of the tribunal
or Court rendered herein based upon such Stipulation, or
parts thereof.
This Stipulation, along with the Complaints and Answers
filed herein, and all matters incorporated by reference, constitute the entire record in this proceeding.
I.

Definitions
Where used in this Stipulation:
1.

MSHA refers to the Mine Safety and Health
Administration.

2.

Plaintiff refers to Ray Marshall, Secretary of
Labor, U.S. Department of Labor.

3.

Defendant refers to Chemical Lime, Inc.

4.

The Act refers to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801, et~·

5.

The Commission refers to the Federal Mine Safety
and Health Review Commission.

6.

Clifton Quarry and Plant refers to a limestone
quarry and plant.

7.

Souther refers to Gene Souther Equipment.

8.

Wales refers to Wales Industrial Service.

1929

II.

CENT 80-231-M
9.

In September 1979, defendant owned mining rights to,
and was conducting and causing others to conduct
mining activities subject to the Act at the proposed
limestone quarry and plant, designated by MSHA as
Clifton Quarry and Plant.

10.

On September 24, 1979, an inspection of said Clifton
Quarry and Plant was conducted by a duly authorized
representative of plaintiff pursuant to Section
103(a) of the Act, and as a result of this inspection, defendant was issued the following citation:
CITATION NUHI3ER

DATE ISSUED

30 CFR STANDARD

00154761

09/24/79

56.9-45

A copy of this citation is * * * incorporated herein
by reference. ]:_/
11.

Souther is a separate, independent contractor retained
by defendant to install a new conveyor system for
Chemical Lime, Inc.

12.

Wales is a separate, independent contractor retained
to assist Souther in the installation of a new conveyor system for Chemical Lime, Inc.

13.

Souther and Wales worked on the installation of the
conveyor system at the Clifton Quarry and Plant
during the time in question and were independent contractors within the meaning of §45.4 of the Secretary's Proposed Regulation referred to in paragraph 37

1/ Citation No. 154761 was issued pursuant to section 104(a) of the Act. It
alleged a violation of 30 C.F.R. § 56.9-45 and described the pertinent condition or practice as follows:
"Two sections of conveyor frame with walkway had been loaded on a flat
bed trailer and were not secured. When additional material was loaded on
the overhanging walkway of one of the conveyor sections it tipped over and
fatally injured an employee."
Section 56.9-45 requires the equipment to be hauled shall be loaded and
~rotected so as to prevent sliding or spillage.
The citation was terminated within 10 minutes of its issuance. The
action taken to terminate the citation was given as follows:
"Operator was instructed on the need to secure equipment before adding
additional material on the load."

1930

below, that time through all times pertinent to this
proceeding.

Ill.

14.

Citation No. 154761 refers to activities or omissions
of Souther and/or Wales' employees or conditions of
Souther and/or Wales' equipment or facilities relating
to the performance of the contracted installment of
the. conveyor system at the Clifton Quarry and Plant.

15.

The Production Supervisor of defendant had discussed
safety procedures with the independent contractors
prior to the accident on the day the accident
occurred.

16.

The condition described in Citation No. 154761 was
abated by the employees of Souther and Wales.

17.

The citation does not allege, and it is a fact that
none of the defendant's employees, equipment or
activities caused or contributed to the alleged
violation.

18.

None of the defendant's employees ever perform and
work for Souther or Wales at the Clifton Quarry and
Plant.

19.

Defendant's employees had no authority to control
the manner, methods, and details of the performance
of contracted work by Souther or Wales and their
employees, and this is outlined in the contract
between Chemical Lime and the independent
contractors.

20.

Defendant does and did have employees permanently
present at the quarry and plant, however, no company
personnel were present when the accident o.ccurred.

21.

Defendant's contracts with Souther and Wales require
compliance with applicable local, State and Federal
laws, including the Federal Mine Safety and Health
Act.

22.

As a matter of law, Souther, Wales and defendant are
now "operators" within the definition of §3(d) of the
Act [30 U.S.C. §802(d)] as amended and pursuant to
other relevant provisions.

CENT 80-232-H
23.

In September, 1979, defendant owned mining rights to,
and was conducting and causing others to conduct

1931

mining activities subject to the Act of the proposed
limestone quarry 1 and plant, designated by MSHA as
Clifton Quarry and Plant.
24.

On September 24, 1979, an inspection of said Clifton
Quarry and Plant was conducted by a duly authorized
representative of plaintiff pursuant to section
103(a) of the Act, and as a result of this inspection defendant was issued the following citations:
CITATION NUMBER

DATE ISSUED

30 CFR STANDARD

154762
154763

09/24/79
09/24/79

50 .10
50.12

Copies of these citations are * * * incorporated
herein by reference. 2/
25.

These citations were issued pursuant to Section
104(a) of the Act and comply with the provisions
thereof in all particulars.

26.

Citation No. 154762 refers to activities or omissions of employees of defendant.

2/ Citation No. 154762 was issued pursuant to section 104(a) of the Act. It
alleged a violation of 30 C.F.R. § 50.10 and described the pertinent condition or practice as follows:
"A fatal accident occurred at approximately 11:30 Af·1 on 9/20/79 and
the Dallas Subdistrict Office was not notified until 2:30 PH on 9/21/79."
Section 50.10 requires that an operator immediately notify MSHA if an
accident occurs.
The citation was terminated 5 minutes after it was issued. The action
taken in abatement was given as follows:
"The operator was informed of his need to report a serious accident
immediately."
Citation No. 154763 was issued pursuant to section 104(a) of the Act.
It alleged a violation of 30 C.F.R. § 50.12 and described the pertinent condition or practice as follows:
"A fatal accident occurred at the mine property on 9/20/79 and the
accident site had been altered when the accident was reported to MSHA in as
much as the equipment and material had been moved to a different location."
Section 50.12 requires that an accident site be kept unaltered until
completion of all investigations pertaining to the accident.
The citation was terminated within 10 minutes of its issuance. The
action to terminate was given as follows:
"The operator was instructed on the need to preserve the evidence until
investigation is completed."

1932

IV.

27.

The condition described in Citation No. 154762 was
abated by employees of defendant.

28.

As a matter of law, defendant was an "operator"
within the then definition of §3(d) of the Act
[30 U.S.C. §802(d)] and pursuant to other relevant
provisions.

General Hatters
29.

Subject to the qualifications of the preamble paragraph of this Stipulation:
a)

The parties agree to the jurisdiction of the
Commission over this proceeding.

b)

The parties agree the mines, operators and
miners mentioned herein were subject to all
provisions of the Act at the time of the
occurrence.

c)

The parties agree the conditions alleged in
each citation in fact occurred on the dates
described in each citation and that the same
constitute violations as follows:
Citation 154761 a violation of 30 CFR §56.9-45
Citation 154762 a violation of 30 CFR §50.10
Citation 154763 a violation of 30 CFR §S0.12

d)

For the limited purpose of agreeing to facts on
which the Review Commission may rely to assess
a penalty in this case, should it deem such an
assessment appropriate, the parties agree that
the size of respondent, defendant's history of
previous violations, the gravity of the violations, respondent's good faith in abating the
violations, and the negligence of the respondent
with respect to the violations are accurately
reflected and set forth in the proposed assessment issued to respondent.
Further, with regard to the negligence of the
respondent with regard to the citations the
parties agree and stipulate that respondent had
instructed the subcontractor thoroughly in safe
work procedures the morning prior to the accident and that the accident was therefore not
foreseeable.

1933

30.

HSHA policy in existence at the time the citations
mentioned herein were issued provided for the issu~
ance of citations or orders at the time pursuant to
Section 104(a) of the Act for Mine Safety and Health
Violations to entities identified to HSHA by a
Federal Mine Identification Number.

31.

A Federal Hine Identification Number may be issued to
any entity registering with the Mine Safety and Health
Administration upon a demonstration that that entity
controls, or is capable of controlling the activities
affecting the health and safety of mine personnel.
However, only one mine identification number is
issued at any given mine.

32.

Federal Mine Identification Numbers have been issued
by MSHA to entities other than mine owners at mines
subject to the Federal Mine Safety and Health Act.

33.

Neither Souther nor Wales possessed a Federal Mine
Identification Number for Clifton Quarry and Plant,
the Federal Mine Identification Number having been
issued to defendant.

34.

Not having a Federal Mine Identification Number,
neither Souther nor Wales could be issued a citation and therefore the defendant, as opposed to
either one of the independent contractors, was
proceeded against.

35.

This agency wide policy to directly enforce the Act
against only owner-operators for contractor violations was an interim policy pending adoption of
regulations providing guidance to inspectors in the
identification and citation of contractors.

36.

On October 31, 1979, MSHA announced the availability
of a draft proposal which would allow identification
of certain independent contractors as operators under
the Act, by publication at 43 Federal Register 50716.
Forty-five days were given to comment on the draft
rule.

37.

On August 14, 1979, a proposed regulation for independent contractors (30 CFR Part 45) by which MSHA could
identify certain independent contractors as operators
under the Act, was published at 44 Federal Register
47746. The colllr.lent period for this proposed regulation closed on October 15, 1979 and the regulation
has been enacted.

1934

Documents attached to Petitioner's Motion to Amend Stipulation established
that the size of Chemical Lime, Inc., was 94,315 man-hours per year in 1978
and that it received a total of eight prior assessed violations. In the
absence of evidence to the contrary, it is found that the penalties assessed
herein will not adversely affect the ability of Responde~t to continue in
business.
Pursuant to 29 C.F.R. § 2700.64(b), a motion for summary decision shall
be granted if it is shown (1) that there is no genuine issue as to any material fact; and (2) that the moving party is entitled to summary decision
as a matter of law.
The stipulations entered into by the parties have resolved the issue of
whether the violations occurred as alleged. Each of the six statutory criteria were also resolved. No genuine issue as to any material fact remains
undeter:nined.
Furthermore, it is clear that Petitioner is entitled to summary decision as a matter of law. The parties have agreed that the only remaining
issue to be decided is whether Respondent may be held liable for violations
com:nitted by its contractors. As noted by Petitioner in its motion, the
Commission has found that, as a matter of law, an owner-operator can be
held responsible without fault for a violation of the Act committed by its
contractor. Secretary of Labor v. Old Ben Coal Company, 1 MSHC 2177 (1979)
(Old Ben). In view of the absence on the record of any basis on which to
distinguish the instant cases from Old Ben, it is found that Respondent is
liable for the three violations at issue herein.
The following findings of fact are made with regard to the remaining
statutory criteria:
Citation No. 154761: Although the violation which gave rise to this
citation resulted in a fatality, the violation was not caused by any negligence on Respondent's part. The violation was abated within a reasonable
period of time.
Citation Nos. 154762 and 154763: These violations were occasioned by
a moderate degree of negligence on the part of Respondent. It was improbable,· ho1-1ever, that these violations would result in an accident or injury.
Both violations were abated shortly after issuance of the respective
citations.
Based on the information furnished in the stipulated record and supporting docur;i,ents, and in consideration of the statutory criteria, the
appropriate penalties in this case are found to be as follows:
Citation No.

Assessment

154761
154762
154763

$100
56
56

1935

ORDER
It is ORDERED that Respondent pay MSHA the sum of $212 within 30 days of
the date of this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Patricia D. Keane, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202
(Certified Hail)
Arthur A. March, Esq., 60 East 42nd Street, New York, NY 10017
(Certified Mail)

1936

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER. COLORADO 80204

)
)
)
)

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

)

Petitioner,

)
)
)
)
)
)
)

v.
JOHNSON, STEWART & JOHNSON MINING
COMPANY, INC.,
Respondent.

AUG t 7 1981
CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-175-M
A/C No. 02-00664-05002
MINE: Pit No. 1

~~~~~~~~~~~~~~~~~~~~-

Appearances:
Marshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
For the Petitioner
Kay H. Wilkins, Esq.
Corporate Counsel
Johnson-Stewart-Johnson Mining Company, Inc.
1635 N. Alma School Road
Mesa, Arizona 85201
For the Respondent
Before: Judge Jon D. Boltz
DECISION
The Mine Safety and Health Administration, pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977 (hereinafter "the Act"),
30 U.S.C. § 820(a), petitions for ~ssessment of civil penalties against the
respondent for alleged violations of regulations, as more fully set forth
in three citations.
At the conclusion of all of the evidence, the parties ag~eed to waive
the filing of post hearing briefs and have a decision rendered from the
bench after closing arguments.
BENCH DECISION
The parties agree as follows:
1. The Act grants the undersigned jurisdiction over the parties and
subject matter of these proceedings.
2. The respondent is a moderately sized company with a moderate
history of previous violations.

1937

3. The penalties proposed are appropriate to the size of the business
and the imposition thereof will not impair respondent's ability to remain
1n business.
4. The citations were 1n fact issued on the date indicated on the
citations, July 12, 1978.
CITATION 377977
The petitioner alleges a violation of 30 C.F.R. 56.5-50(b). 1 /
The evidence shows, and I find, that the pit crusher operator was'exposed
to approximately 200% of the permissible noise exposure based on the tables
that were placed in evidence by counsel for the petitioner. The dosimeter
utilized measured noise levels above 90 dBA and the sampling of the pit
crusher operator took place for a continuous period of 445 minutes. It is
undisputed that the noise exposure did exceed permissible limits.
The question, then, is whether or not feasible engineering or
administrative controls were being utilized to reduce the exposure. In
this case, the only action necessary was to move the pit crusher operator
away from the crusher a distance farther than that which he had been
standing during the course of his exposure. It is undisputed that this
could have been done by the operator and that the noise exposure would then
have been within permissible limits. Accordingly, I find that feasible
controls were not being utilized. I also find that the respondent
demonstrated good faith in achieving rapid compliance after notification of
the violation.
The citation 1s affirmed and the penalty assessed will be $20.00.

j

CITATION 377978
The petitioner alleges a violation of the same regulation as in the
previous citation. In the Bench Decision, I stated that this citation
should be vacated. However, on subsequent review of the transcript, I find
that the citation should be affirmed.
A pit laborer was sampled for noise exposure for a period of 445
minutes. · It is undisputed in the evidence presented that the pit laborer
was exposed to 158% of the permissible noise level for this period of time,
or 94 dBA. The permissible level is 90 dBA. Personal hearing protection
was being worn. Since the employee's exposure exceeded that level listed
in the table set forth in the regulations, the question again arises as
1/ [Mandatory.] (b) When employees' exposure exceeds that listed in the
above table, feasible administrative or engineering controls shall be
utilized. If such controls fail to reduce exposure to within permissible
levels, personal protection equipment shall be provided and used to reduce
sound levels to within the levels of the table.

1938

to what, if any, feasible administrative or engineering controls should
have been utilized by the respondent.
The petitioner introduced evidence as to the feasible controls that
could have been utilized. One control consisted of an effort to ascertain
the sources of greatest noise, so that steps could be taken to remove the
need for the employee to be at those sources. The MSHA inspector testified
that he suspected that the overexposure of the laborer occurred when he had
to work directly under an operating crusher in order to clean up a spill
from the conveyor. The spill occurred because the skirting was loose on
the collection box under the conveyor. If the skirting had been properly
secured there would have been no spill and, thus, there would have been no
need for the laborer to be in that location close to the extremely noisy
crusher. The inspector also testified that the respondent could have used
a noise meter to "go out around the plant and sample".
The respondent had the burden of going forward with evidence to show
that feasible controls would have failed to reduce the exposure to within
permissible levels and, thus, that personal protection equipment was
properly provided for the pit laborer in order to reduce the sound levels
to within levels prescribed by the table. On review of the transcript, I
find that there was no evidence presented by the. respondent to show that
any feasible administrative or engineering controls utilized would have
failed to reduce the exposure to within permissible levels. Having failed
to present evidence on this point, the citation must be affirmed as a
matter of law. The penalty assessed is $20.00.
CITATION 377980
Petitioner alleges a violation of 30 C.F.R. 56.5-S. 2 / A pit
laborer, who was sampled for dust exposure during a period of 445 minutes,
was exposed to silica bearing dust in the amount of .92 milligrams per
cubic meter. According to the threshold limit value adopted by the
regulations, .42 milligrams per cubic meter should not have been exceeded.
It ii also undisputed that it was feasible to reduce these harmful airborne
contaminants by use of water incorporated in the plant's spray system.
The respondent's witness testified that the spray system was on the
crusher equipment, but because the plant had recently been moved the water
system had not yet been connected to the main source of water supply.
2/

Mandatory.

Control of employee exposure to harmful airborne

~ontaminants shall be, insofar as feasible, by prevention of contamination,

removal by exhaust ventilation, or by dilution with uncontamir;tated air.
However, where accepted engineering control measures have not been
developed or when necessary by the nature of the work involved ... ,
employees may work for reasonable periods of time in concentrations of
airborne contaminants exceeding permissible levels if they are protected by
appropriate respiratory protective equipment ....

1939

The witness also testified that production was started before hooking up
the water devices. If the installation had be~n completed before production was commenced, the pit laborer would not have been exposed to
harmful airborne contaminants in exce.ss of the threshold limit value
prescribed by the regulation. Thus, this citation is affirmed and the
penalty assessed is $10.00.
ORDER
The foregoing Bench Decision with regard to Citations 377977 and
377980 is affirmed ·and Citation 377978 is hereby affirmed. The respondent
is ordered to p~y a civil penalty of $50.00 within 30 days of the date of
this Decision.

dministrative Law Judge
Distribution:
Marshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94012
Kay H. Wilkins, Esq.
Corporate Counsel
Johnson-Stewart-Johnson Mining Co., Inc.
1635 N. Alma School Road
Mesa, Arizona 85201

1940

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-89-M

)

v.

)

A/O No. 04-01827-05006 F

)

KAISER SAND AND GRAVEL COMPANY;

)

MINE: Radum Pit and Mill

)

Respondent. .

)
)

~~~~~~~~~~~~~~~~~~~-

DECISION
Appearances:
Marshall P. Salzman, Esq., Office of the Solicitor, United States
Department of Labor, 450 Golden Gate Avenue~ Room 11071, Box 36017,
San Francisc6, California 94102
For the Petitioner
Paul M. Heylman, Esq., Schmeltzer, Aptaker and Sheppard, P.C., 1800
Massachusetts Avenue, N.W., Washington, D.C. 20036
For the Respondent
Before: Judge Virgil E. Vail
Statement of the Case
The above-captioned civil penalty proceeding was brought pursuant to
Section llO{a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 820(a) (hereinafter referred to as "the Act").
Pursuant to notice, a hearing on the merits was held in San Francisco,
California on September 11, 1980. Richard C. Anderson, a mining engineer,
testified on behalf of the petitioner. Donald Streitz, Vernon Allen,
Tinnie Gunter and Claire Hay testified on behalf of the respondent.
Post-hearing briefs have been filed by both parties. Based on the
evidence presented at the hearing, a stipulation of facts entered into
between the parties during the course of the hearing and the contentions of
the parties, I find the following facts were established.
Findings of Fact
1. Respondent operates a sand and gravel pit and mill near
Pleasanton, California. (Tr. 10).

1941

2. Citation no. 371557 was issued to the respondent as the result of
a fatal accident which occurred on June 12, 1979, involving Vaughn F.
Higgins (hereinafter referred to as "Higgins").
3. Higgins was employed by the respondent at the Radum Pit and
Operation from June 23, 1976 until the time of his death.
4. Higgins was employed in the capacity of a dragline oiler, an
occupation at which he had worked for the ten years preceding his death.
5. Sometime before 5:10 a.m. on June 12, 1979, Higgins was driving
his own pickup truck enroute to work when he drove onto the blocked old
service road to the respondent's pit.
6. Higgins proceeded down this road until he was approximately 18
feet from a dirt pile blocking the road and then he stopped.
7. Tire tracks indicate that Higgins then backed his truck up the
service road, a distance of 82 feet, at which point the vehicle went over
the left side of the road, falling 47 feet, crushing the truck's cab and
killing Higgins.
8. The old service road was approximately 400 feet in length but was
blocked by a dirt pile approximately 20 feet in height at a point 183 feet
down the road.
9. The pile of dirt prevented further vehicular movement down the old
service road on June 12, 1979.
10. The old service road was approximately 27 feet wide with a slight
downgrade of approximately 2 to 5%. There was a drop-off of approximately
47 feet on the left side and an embankment of approximately 10 to 12 feet
high on the right side.
11. A Coroner's autopsy revealed that Higgins's blood contained 6.5
mcg/ml of Phenobarbital.
12. The old service road had been in use for a period of three to four
weeks prior to the accident.
13. On June 11, 1979, the day prior to the fatal accident, at
approximately 6:30 p.m., the old service road was "blocked off" by a dirt
pile when the Ko-Cal feeder was moved over and placed on the old service
road. (Tr • 38) •
14. A new service road into the pit had been opened for approximately
two weeks prior to the fatal accident. (Tr. 38, Exhibit 2).

1942

15. On June 12, 1979, sunrise at Pleasanton, California was at 5:45
a.m.; Pacific Daylight Time (Exhibit 4).
16.

There were no witnesses to the fatal accident.

ISSUE
Whether the respondent violated mandatory safety standard 30 C.F.R.
56.20-11 by failing to place a barricade or warning sign at the entrance to
the old service road on or before June 12, 1979?
Discussion
Citation no. 371557 1; charges the respondent with having violated
mandatory safety standard-56.20-11. The standard provides that:
Areas where health or safety hazards exist that
are not immediately obvious to employees shall be
barricaded, or warning signs shall be posted at
all approaches. Warning signs shall be readily
visible, legible, display the nature of the hazard,
and any protective action required.
The sole issue is whether the respondent: violated 56.20-11 by failing
to place a barricade or post warning signs at the entrance to the old
service road. The respondent argues in its post-hearing brief that the
company should not be cited in this instance since the hazard, a drop off
on the side of the old service road, was an obvious hazard. Respondent
further argues that the requirements of standard 56.20-11 applies only to
health and safety hazards that are not irrnnediately obvious to employees.
In support thereof, respondent points out that the deceased was a long time
employee of the respondent and familiar with the operation of the pit; that
he knew the Ko-Cal feeder and the pendulum were moved every five to nine
days, and that on the day prior to the fatal accident, the employees in the
pit had begun to move this equipment to a point which would block off the
old pit service road. Further, respondent argues that on June 12, 1979,
when Higgins arrived for work he should have observed the equipment and the
dirt pile barricade blocking the old pit service road from the entrance to
the service road. Based upon these arguments, the respondent contends that
the hazard was obvious.

1/ A fatality occurred at about 5:10 a.m. (June 12, 1979) on an abandoned
pit service road. The road was not barricaded or posted against entry. An
employee entered the road and backed his vehicle over the edge. The road
had been in use as the pit service road for about 6 weeks and was the main
entrance into the working pit area.

1943

The known facts in this case do not appear to be contradicted. As set
out in the statement of facts, Higgins arrived at the pit sometime before
5:10 a.m. on June 12, 1979 and started down what had previously been used
as a service road into the pit. He apparently found that at a point 183
feet down the road there was a pile of dirt placed as a barricade to
prevent further travel. In attempting to back up, he b•cked ov~r a b~nk
and was killed. Beyond these facts, much of the respondent's arguments as
to what Higgins knew or should have known is conjecture since no one
actually saw the accident.
From the above facts, it must be concluded that Higgins did not know
that the service road was blocked, or if he did know or should have known
he forgot. The evidence does not show that Higgins would have known that
the dirt barricade was placed across the road. This road had been driven
by another of respondent's employees, Mr. Vernon Allen, on the night prior
to the accident after 6:00 p.m. and it was not blocked. (Tr. 49). The
evidence further shows that the road was blocked around 6:30 p.m. on June
11, 1979 and that no one knows what time Higgins left work that day. (Tr.
42). A time card for Higgins showed that he quit work on June 11, 1979 at
6:00 p.m. (Tr. 44).
From this evidence it cannot be assumed that Higgins knew the old
service road was blocked by the pile of dirt placed thereon at approximately 6:30 p.m., on the day prior to the fatal accident. The fact that
Higgins started down the road on the day he was killed would indicate he
did not know it was blocked. Therefore, if a hazard existed, it was not
obvious. Furthermore, Mr. Allen testified that when he arrived at the
respondent's pit at approximately 5:20 a.m. for work, he also started down
the old service road to enter the pit (Tr. 50 and 55). Mr. Allen, in
response to why he drove down this road on June 12, 1979, after testifying
that he knew it would be blocked, stated that he did so from force of habit
as he had been using the same road for a couple of weeks prior thereto.
(Tr. 55).
Another employee, Tinnie Gunter, also testified that when he arrived
for work on June 12, 1979, he started down the old service road to the pit
from force of habit. The witness also testified that he had passed the
pile of dirt placed as a barricade the night before on his way out. (Tr.
60).
From the evidence of record and the testimony of the witnesses
referred to above, a sign or barricade at the entrance to the old service
road would have warned or reminded the respondent's employees that the road
was closed and should not be travelled. The respondent argue~ that
standard 56.20-11 does not require warning signs where safety' hazards exist
that are immediately obvious to employees, that is, the drop off on the
left side of the road over which Higgins truck fell and crashed.
Respondent further argues that "obvious", as used herein, means "plain,

1944

evident, or known" whereas the standard applied herein refers to safety and
health' hazards ·which employees cannot reasonably be expected to know of;
rather than those which employees know or can reasonably be presumed to
know of.
I am persuaded by the evidence of record that the old service road in
this instance should have been posted by a sign or barricade at the
entrance warning employees that the road was closed to travel. The fact
that two employees, other than Higgins, started down this road on the day
of the fatality, through force of habit indicates that the assumption made
by the respondent that these employees should know differently, is
insufficient. Further, a hazard did exist which is borne out by the
results of the fatal accident. When Higgins arrived at the dirt barricade
blocking the road, he was faced with either turning around or backing up
the hill. That he decided to back his pickup truck up the hill, rather
than turn around is immaterial at this time as any opinion of some other
course of action would at best be second guessing. The fact is that the
vehicle went over the side of a 47 foot embankment causing Higgins death.
The dirt pile barricading the road in combination with the steep embankment
is the hazard here. The evidence indicates there was not a berm on this
road to warn drivers of approaching the edge of the road. If the road was
not to be used at all, then a berm is not required. However, by placing
the dirt pile a distance of 183 feet down the road from the entrance and
failing to barricade or post notices that the road was closed at the
entrance creates a hazard that is not immediately obvious to employees on
the day shift and at the particular time this accident occurred.
Respondent further argues that they should not be held responsible for
the aberrant and unpredictable actions of its employees, in this case the
action of Higgins. Testimony was given that Higgins should have known of
the barricade, that he was a fast driver and under the influence of drugs.
As stated previously, the evidence does not show that Higgins left the pit
the previous night after the dirt barricade was placed across the road.
Also, that force of habit, as exhibited by witnesses Allen and Gunter
starting down the old service road, showed that a sign or barricade at the
entrance would have warned or given notice of the roads condition to those
employees who either did not know or forgot the discontinuance of its use.
The testimony as to Higgins prior 'driving habits is not controlling
here as it does not relate to the violation of the standard alleged
herein. The violation was the failure to barricade or post signs warning
of a safety or health hazard. Further, no witnesses saw the accident; or
Higgins driving his truck prior to the accident, nor was there any evidence
to show he was driving carelessly.
The fact that the Coroner's report showed that Higgin's blood contained a drug is meaningless unless medical testimony or expert testimony
is utilized to indicate what conclusions can be drawn from such tests. The
District of Columbia Court of Appeals in the case of Lister v. England 195
A. 2d 260 (D.C. App. 1963) held that blood analysis results are not even

*

1945

admissible unless introduced by expert testimony. Recause, as the Court
stated, "without benefit of such testimony or resort to the statutory
standard's the· result of the analysis is meaningless." See Also Holt v.
England 196 A, 2d 87 (D. C. App. 1963) and City of Sioux Falls v.
Christensen, 116 N.W. 2d 389, (S. Dak. 1962).
The argument of the respondent that they should not be held liable for
the conduct of the employee, if it was aberrational and unpredictable, has
been considered by the Federal Mine Safety and Health Review Commission.
The Review Commission has consistently held that the operator is liable for
violations of the mandatory safety standards without regard to fault.
United States Steel v. Secretary of Labor 1 BNA MSHC 2151 (1979) and
Secretary of Labor v. Marshfield Sand and Gravel 1 BNA MSHC 2475 (1980).
For the reasons stated above, I conclude that a violation did occur.
Penalty Assessment
I find that the citation issued by the inspector described a violation
of 30 C.F.R. § 56.20-11. The respondent should have been aware of the
hazard that existed on the morning of June 12, 1979 and that it would not
be immediately obvious to its employees and therefore was negligent in
permitting it to exist. However, in determining the extent of the
respondent's negligence, I have considered the fact that this same service
road had been used for some time by the employees coming and going to the
pit and was removed from use as a means of access to the _pit the preceding day by placing a dirt barrier across it. After such continuous past
use, the action of Higgins in backing up this road a distance of 82 feet
when he could have taken other means of exit, such as turning around and
driving up, would appear to lessen the degree of negligence of the employer
herein.
The respondent is a relatively large company and has a modest history
of prior violations. The violation was abated immediately after the
citation was issued. I conclude that a penalty of $2,000.00 should be
assessed.
ORDER
The respondent ts ordered to pay the sum of $2,000.00 within 30 days
of the date of_ this decision.

--··-

Administrative Law Judge

1946

Distribution:
Linda Bytof, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
Mr. Clair Hay
Kaiser Sand & Gravel Company
3311 Stanley Boulevard
P.O. Box 580
Pleasanton, California 94566

1947

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

Civil Penalty Proceeding

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

Docket No. PENN 81-24
A.C. No. 36-00856-03037F

v.

Rushton Mine
RUSHTON MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
The parties have reached a settlement of the five violations involved
in the above docket in the total sum of $22,000. MSHA's initial assessment
therefor was $35,000. The terms of the settlement are as follows:
Citation/Order Number

Original Assessment

615758
802229
802230
802228
802232

$ 2,000
10,000
10,000
10,000
3,000
$35,000

Compromised Settlement
$

750
6,500
6,500
7 ,000
1,250
$22,000

The reductions from the original assessment appear warranted.
1. Order No. 615758 was issued for a violation of 30 C.F.R. § 75.201-l(b)
and originally involved a penalty assessment by MSHA of $2,000. In conjunction with this order, section 104(d)(2) Order No. 802229 was issued for a violation of 30 C.F.R. § 75.200 for which Respondent was initially assessed a
penalty of $10,000. These two orders were both assessed for excessive roofcontro.l widths. The first order was issued because no additional support was
provided as required by the regulation. The inspector observed that for 350
to 400 feet, the width of the area was 21 to 24 fr~et instead of 20 feet as
required by the regulation. The second violation, of drawings 7, 8, and 9
of the approved roof-control plan, was issued because the plan requires the
roadway to be limited to 16 feet in width. These two violations were issued
for the same length of roadway. Therefore, they duplicate each other.
Accordingly, it is appropriate to reduce these penalties. Although these
orders were issued in the course of a fatality investigation, it is conceded

1948

by MSHA that the excessive widths did not contribute to the fatality. The
fatality occurred during pillaring operations. This area had been developed
many years before. When it was developed, the widths did not have to be narrowed as currently required. The Respondent mine operator was in the process
of adding additional support to this roadway. The operator had not yet started
pillaring the area. The approved roof-control plan provides, in relevant part,
that roadways must be narrowed to 16 feet where pillaring is being done. However, as stated above, pillaring was not yet being performed. Rather, the
operator was adding. additional support to the entries surrounding the pillars
and HSHA concedes that the operator was not unreasonable in interpreting the
plan to allow additional support to be installed prior to narrowing the roadway. Additionally, MSHA indicates that the operator did intend to narrow the
roadway after adding the additional support. Accordingly, because the two
orders duplicate each other, because MSHA concedes it initially overevaluated
the operator's negligence, and since this violation did not contribute to the
fatality which occurred, penalties of $750 and $6,500, respectively, as agreed
upon by the parties, are approved.
2. Order No. 802230 was issued for a violation of 30 C.F.R. § 75.201.
MSHA originally assessed a penalty of $10,000. MSHA has submitted the
fatality investigation report relevant to this order. As MSHA points out,
this report has in it a sketch of a mine map showing the section as it
appeared when the fatality occurred. The Respondent operator was in the
course of pillar recovery. It had begun pillaring in sequence along one row.
Thereafter, it left several blocks of coal unmined due to bad roof surrounding
the area. It then continued mining this same row of pillars. Upon completion
of this row, the operator moved one row outby and began pillaring across the
entries. At this point, the operator did not intend to go back inby to remove
the pillars it had omitted. MSHA concedes that this is an acceptable mining
method,.!_·~·· where the operator believes that it is unsafe to mine certain
pillars, the operator may omit those pillars provided it continues in sequence
from that point. However, the state mine safety and health inspectors disagree
with the Federal Government's position. The day prior to the fatality, the .
state inspectors were in the mine. They told the operator that it was necessary to return inby to the three pillars that had been omitted. Thus, the
operator was required to add additional support throughout the area going
toward the pillars that had orginally been omitted. These particular pillars
are designated as Nos. 6, 7, and 8 on the sketch provided by MSHA. By mining
in this fashion, that is, going partially through one row then going outby
another row and then returning inby, the operator failed to maintain a uniform
pillar line. This is a violation of 30 C.F.R. § 75.201 and exposed miners to
unusual dangers because it is, according to MSHA, a faulty pillar recovery
method. This contributed to the accident as it caused excessive heaviness in
an area of already poor roof. Accordingly, because the operator was following
the instructions of the state inspector, MSHA concedes that the operator's
negligence was initially overevaluated. MSHA also indicates that if this
matter was to proceed to hearing, an expert witness for Respondent would
testify that mining in this fashion does not create pillar points and is not
less safe then mining straight across. Accordingly, the reduction to $6,500
is approved.

1949

3. Order No. 802228 was originally assessed at $10,000. It involved a
fatality. The operator was adding additional support to a developed entry in
the course of pillaring operations. Respondent's old roof-control plan did
not require 4-foot centers nor as extensive a bolting pattern as required by
the current plan. The victim, who was a bolter helper, and the bolter himself
were in the process of installing additional supports in accordance with the
new plan when the fall occurred. MSHA indicates that there is a dispute as to
whether this was spot bolting or rebolting. In either case,.MSHA concedes the
operator was acting in good faith. MSHA also concedes that· the operator was
taking extensive measures to make sure that this potentially dangerous area
was given care. It is also significant to note that during this additional
bolting stage, the section foreman told the bolters to be sure to make the
roof safe by doing whatever was necessary. At first, 6-foot bolts were being
used. When it was determined that this may not be sufficient, 8-foot bolts
and metal straps were used. One of these straps was already in and more were
to be inserted when the accident occurred. For these reasons, MSHA concedes
that the degree of the operator's negligence was not high. The reduction to
$7,000 appears appropriate and is approved.
4. Citation No. 802232 was issued for a violation of 30 C.F.R. § 75.200.
The citation charges the operator with not adequately training its bolting ·personnel in compliance with safety precaution No. 2 of the plan. MSHA indicates
that the object of this citation was to charge the operator with not properly
instructing its bolters on "rebolting" requirements. However, the bolter felt,
and the operator agreed, that "spot" bolting was being conducted. MSHA concedes that this discrepancy does not indicate inadequate training, but rather
the inherent conflict between what spot bolting and rebolting actually are.
MSHA concedes the operator's negligence is lower than initially evaluated.
The agreed-on penalty of $1,250 is approved.
ORDER
Respondent, if it has not previously done so, is ORDERED to pay the
stipulated penalties totaling $22,000 to the Secretary of Labor within
30 days from the issuance date of this decision.

Michael A. Lasher, Jr., Judge
Distribution:
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
Timothy H. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, N.W.,
Washington, DC 20036 (Certified Mail)

1950

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

AUG 2 o 19fll

Civil Penalty Proceeding

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

Docket No. SE 81-17-M
A.O. No. 01-0027-05017 F
Ragland Plant

v.
NATIONAL CEMENT COMPANY, INC.,
Respondent

DECISION
Appearances:

Murray A. Battles, Attorney, U.S. Department of Labor,
Birmingham, Alabama, for the petitioner; J. Ross Forman,
III, Esquire, Birmingham, Alabama, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent on January 30, 1981,
pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 820(a), charging the respondent with two alleged
violations issued pursuant to the Act and the implementing mandatory
safety and health standards. Respondent filed a timely answer in the
proceedings and a hearing was held on July 14, 1981 in Birmingham,
Alabama, and the parties appeared and participated therein. The parties
waived the filing of post-hearing arguments, but were afforded the
opportunity to make arguments on the record and they have been
considered by me in the course of this decision.
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 petition for assessment of civil penalty
filed in this proceeding, and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged violations
based upon the criteria set forth in section llO(i) of the Act.
Additional issues raised by the parties are identified and disposed
of in the course of this decision.

1951

In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator, (3) whether
the ope~ator was negligent, (4) of 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 et ~·
2.

Section 119(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 20 CFR 2700.1 et ~·

Stipulations
The parties stipulated to the following:
1. National .. Cement Company, Incorporated is the owner and operator.
of the Ragland Plant located in Ragland, St. Clair County, Alabama.
2. The inspector who issued the subject order and termination
was a duly authorized representative of the Secretary of Labor.
3. A true and correct copy of the subject order/citation and
termination were properly served upon the operator in accordance with
section 107(d) of the 1977 Act though National denies it is subject to Act.
4. Copies of the subject order/citation and termination are
authentic and may be admitted into evidence for the purpose of
establishing their issuance and not for the truthfulness or relevancy
of any statements asserted therein.
5. The appropriateness of the penalty, if any, to the size of
the coal operator's business should be determined based upon the fact
that in 1979, the Ragland Plant produced 353,981 man-hours per year, and
the controlling company, National Cement Company, Inc., had annual man-hours
of 402,353.
6. The history of previous violations should be determined based
on the fact that the total number of assessed violations in the preceding
24 months is 80 and the total number of inspection days in the preceding
24 months.

1952

7. The alleged violation was abated in a timely manner and the
operator demonstrated good faith in attaining abatement.
8. The assessment of a civil penalty in these proceedings
will not affect the operator's ability to continue in busin~ss.
The jurisdictional question.
During the course of the hearing, respondent's counsel for the first
time asserted that the Ragland Plant is not a "mine" within the meaning
of the Act, and he contended that the respondent conducted a "milling
operation" which is outside MSHA's jurisdiction (Tr. 91). Although
Commission Rule 29 CFR 2700.5, requires an operator to deny any jurisdictional
facts as part of its answer, respondent has never asserted that it is
engaged in a milling operation which is outside MSHA's jurisdiction.
Although its answer filed February 17, 1981, contains a denial that
respondent operates "any coal or other mine", respondent admits that it
operates "a limestone quarry, the products of which enter commerce
within the meaning of the Act."
I take note of the fact that respondent's history of prior violations
reflects that it has been served with a total of 87 citations for the period
October 29, 1978 through October 28, 1980,
and that respondent has
paid these assessments without prate t. Further, the inspector who
issued the citations testified that the mine has been regularly inspected
by MSHA and that the respondent has never objected or contended that the
inspectors were acting without enforcement authority or jurisdiction
over its mining operations (Tr. 15, 56). I also take note of the fact
that MSHA Form 1000-179, which is attached as "Exhibit A" to the petitioner's
initial proposal for assessment of civil penalties, filed January 30, 1981,
contains a notation that prior to December 4, 1979, the Ragland Plant
was known as the "Ragland Quarry and Mill".,
Section 3(h)'(l) of the Act defines "coal or other mine" as including,
inter alia, "lands, excavations, structures, facilities, equipment, machines,
tools, or other property * * * used in, or to be used in, the milling of
* * *minerals, or the work of preparing * * *minerals."
The legislative history of the 1977 Act clearly contemplates that
jurisdictional doubts be resovled in favor of Mine Act jurisdiction. ' The
report of the Senate Committee on Human Resources states:
The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's intention
that what is considered to be a mine and to be regulated under
this Act be given the broadest possible interpretation, and it
is the intent of this Committee that doubts be resolved in favor
of inclusion of a facility within the coverage of the Act.

1953

S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14;
Legislative History of the Mine Safety and Health Act, Committee Print at
602 (hereinafter cited as Leg. Hist.).
"Milling" is defined in pertinent part by the Mining Dictionary,
(pg. 707), as "the grinding or crushing of ore", and 30 CFR 56. 2 defines
a "mill" as including "any ore mill, sampling works, concentrator, and any
crushing, grinding, or screening plant used at, and in~onnection with,
an excavation or mine".
The Ragland Plant is in the business of producing cement, the principal
ingredient of which is the limestone which is mined from a nearby quarry
owned by the respondent. The extracted limestone is used in the production
of the cement which occurs at the plant site in question. The term "cement"
is defined, amongst several definitions, as "a finely ground powder which,
in the presence of an appropriate quanity of water, hardens and adheres
to suitable aggregate, thus binding it into a hard agglomeration that
is known as concrete or mortar." A Dictionary of Mining, Mineral, and
RelatedTerms (U.S. Department of the Interior, Bureau of Mines) (1968)
at p. 186.
Inspector Wilkie testified that respondent's quarry is located
approximately seven miles from the plant, and that the limestone material is
blasted at th=quarry, loaded onto contract trucks by front-end loaders,
and then hauled and dumped at the plant, where it is ultimately processed
into cement. He described the cement-making process, which includes the
screening and crushing of the quarried material for the production of
cement and mortar. The finished raw product is then bagged and shipped
by railroad cars or trucks. Plant production does not include the making
of brick, pipe, or other concrete pre-fabricated products (Tr. 56-59).
He also alluded to the fact that prior to 1980 respondent used another
quarry which was approximately a mile from the plant and that the limestone
from that quarry was crushed, loaded, and conveyed to the plant in question
by conveyor belts. However, that quarry was flooded and is no longer used,
but respondent never objected to any inspections which he had previously
conducted at that facility (Tr. 61).
Inspector Wilkie described the plant operation in question as a milling
operation and indicated that it had a separate MSHA mine identification
number than the respondent's pit and quarry, and he confirmed the fact
that'he has inspected other similar cement plant operations in the State
of Alabama and Georgia and that MSHA has enforcement jurisdiction over
these operations (Tr. 61). The plant or mill area itself covers an area
of approximately two and one-half acres, and Mr. Wilkie characterized it
as a limestone milling operation (Tr. 94).
Limestone is a form of sedimentary rock, and the term "crushed stone"
is defined as the "product resulting from the artificial crushing
of rocks, boulders, or large cobblestones~ substantially all faces of which
have resulted from the crushing operation," and is a "[t]erm applied to

1954

irregular fragments of rock crushed or ground to smaller sizes after
quarrying." QE_ cit., p. 284. These definitions suggest that cement
production at the plant in question requires, at
minimum, the crushing
of limestone to produce a finely ground powder used in the finished
product. This-being the case, I believe that the respondent's plant may
also be characterized as a "crushed stone operation" subject to the
mandatory regulatory requirements of Part 56, Title 30, Code of Federal
Regulations.

a

The record adduced in this proceeding reflects that the crushed
limestone for the plant comes from company-owned quarry, that the cement
was produced by the dry process, and the finished product was stored
in silos for shipment in bag and bulk. The kiln which is used for a part
of the cement making process is fueled by coal which is processed through
the coal feed hopper where the accident in question occurred. (Tr. 92-93).
With regard to respondent's assertion that it conducts a milling
operation, it seems clear to me that those activities would still be
subject to the Act, as well as to MSHA's enforcement jurisdiction.
Section J(h)(l) of the Act states that: "[i]n 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 delgaation to one Assistant Secretary of all authority
with respect to the health and safety of miners at one physical establishment."
Since mineral milling or preparation is not specifically defined
by the Act, the Mine Safety and Health Administration (MSHA) and the
Occupational Safety and Health Administration (OSHA) have entered into
an agreement by which they define their respective jurisdictions. 39 Fed.
Reg. 27382, April 22, 1974, superceded by 44 Feel. Reg_. 22827, which became
effective on March 29, 1979. Pursuant to this agreement, safety and health
infractions which occur on mine sites and in milling operations, such as
cement plants, come under the enforcement jurisdiction of MSHA and its
mandatory safety and health standards. In those instances where the
provisions of the Act and the implementing standards found in Parts 55,
56, 57 do not cover safety and health hazards on mine or mill sites,
OSHA has enforcement jurisdiction.
It seems clear to me that the statutory definition of a mine establishes
that it was Congress' intent that MSHA regulate any milling activity
which is an integral part of a mine, since mines fall within the specialized
jurisdiction of MSHA and since mine employees typically operate such
facilities. On the facts of this case, it also seems amply clear to me
that the respondent's cement plant, even if it can be classified as a
milling operation, is still an integral part of its limestone mining operation.
Without the raw mineral material (limestone) respondent could not produce
cement. Therefore, it seems further clear to me that respondent's
operations, whether they be characterized as a crushed stone operation
or a milling operation, are both subject to the Act as well as to MSHA's
enforcement jurisdiction, and my conclusions in this regard are based on
the statutory aforementioned definition of the term "mine" as well as
the MSHA-OSHA memorandum of understanding.

1955

Respondent has presented no evidence or testimony to rebut the
petitioner's assertion that the plant is subject to the Act as well as
to MSHA's enforcement jurisdiction. Under the circumstances, and in view
of the aforementioned discussion with regard to this issue, respondent's
jurisdictional arguments are REJECTED.
Discussion
The citations in issue in this case were served on the respondent
after the conclusion of an investigation conducted by MSHA to ascertain
the circumstances concerning a fatal accident which occurred at the plant
in question on October 29, 1980. The official accident report is a part
of the record (exhibit P-3), and briefly stated, the fatality occurred
when an employee fell into a coal feed hopper while apparently attempting
to free a coal.hang-up and became entrapped in the coal and suffocated.
Citation No. 082769, issued on October 31, 1980, charges a violation
of section 56.16-2(b), and the condition or practice described is as
follows:
A fatal accident occurred at this operation on October 29,
1980, when an employee entered a coal feed hopper and became entrapped and suffocated. The grizzly on which the
man normally would have stood to free a hang-up had been
removed.
Citation No. 082768, October 31, 1980, cites a violation of 30 CFR
56.16-2(c), and the condition or practice described is as follows:
A fatal accident occurred at this operation on October 29,
1980, when an employee entered a coal feed hopper without shutting off and locking out the discharge equipment.
Additionally, the victim was not wearing a safety belt or
harness, when the bridged coal collapsed, the employee because
entrapped and suffocated.
Testimony and evidence adduced by the petitioner
MSHA Inspector William L. Wilkie testified as to his mining background
and experience and confirmed the fact that he had conducted an accident
investigation at the subject plant in October of 1980. He detailed the
procedures he followed in conducting the investigation, summarized the
statements taken from persons at the plant during the course of the
investigation, and identified photographs of the hopper in question
as well as a copy of the investigative report which he compiled (Tr. 15-23,
exhibits P-11 through P-19, P-3, R-5).
Mr. Wilkie characterized a "grizzly" as the vernacular term for a
grate, and he indicated that it was not in place over the hopper when he
arrived at the plant and that he could not see one anywhere in the immediate

1956

area. However, he did observe 6 or 9 steel supports inside the hopper
which served as a support for the grizzly when it was in place. Mr. Wilkie
testified that he interviewed shift foreman Howard Burnham and recorded
in his notes what he believed Mr. Burnham told him about the accident
(exhibit P-4), and that he also wrote up a statement for his signature
describing the accident (exhibit P-6). Mr. Burnham told him that the
accident victim Norris Johnson was standing on the coal in the hopper
attempting to free up some coal with a long rod, and that after inserting
his rod into the coal two times the bridged coal gave way and buried
Mr. Johnson up to his hips. Mr. Burnham attempted to free Mr. Johnson
from the coal, but after 10 to 15 minutes he became exhausted, shut down
the vibrator, and went for help. Two or three men jumped into the hopper
and frantically attempted to uncover Mr. Johnson from the coal while a
man was attempting to push Mr. Johnson's legs up through the bottom of
the hopper. Mr. Johnson was extracted from the coal and the rescue squad
arrived on the scene, administered oxygen and CPR, all to no avail
(Tr. 23-33).
Mr. Wilkie testified that Mr. Burnham admitted to him that there
was no safety belt at the hopper, and that it was kept in a locker in the
kiln control room. Mr. Burnham also told him that he did not instruct
Mr. Johnson to get into or out of the hopper, and Mr. Burnham made
an admission that both he and others had often stepped out onto the coal
pile to unclog it (Tr. 36).
Mr. Wilkie confirmed that he issued the citations in questions, and
he stated that a fellow inspector, R. L. Everett assisted him during the
investigation and that Mr. Everett assisted him in filling out the
inspector's narrative statements (exhibits P-1, P-2, Tr. 39-45).
Inspector Wilkie explained the reasons for the issuance of the citations
in this case as follows (Tr. 45):
A. All right. The reason I issued these citations, I
was obligated to issue them under the standards that
I'm obligated to carry out. And had either one of these
items been used; had there been a grizzly on the hopper
bin, there would have been no accident. Had there been
a safety belt used, there would have been no accident.

Q.

But the grizzly now -- there is no standard as such
that a grizzly has to be on there, is that true?

A.

The grizzly was used, in this case, as a sizing device.

Q.

Yes.

A.

It was used as a walkway.

But it was also used

well --

Q. It would have been an adequate walkway under the
standard.
A.

It would have.

We would have accepted it.

1957

And, at pages 95-97:

Q.

Now, on the first citation here, 082769, which is
Petitioner's Exhibit 1, when you cited them for a violation of 56.16-2(b), I take it you did so on the theory
that the grizzly also served as a suitable walkway or
passageway and since it was not there, since it had been
removed and not replaced, that they didn't have a suitable
walkway or passageway. Is that the theory on which you
issued the citation?
A.

Yes, sir.

Q.

Would Subsection (c), that first sentence, also suffice
to describe the function of the grizzly, and if a grizzly
were not present could you also have cited them with (c),
which says where persons are required to enter, et cetera,
that a platform or staging shall be provided?
A. Yes, sir. I would have issued that (c) since they
did not cut off the discharge and they did not use the
safety belt.

Q.

Well, leave the safety belt and discharge aside now,
and let's just concentrate on whether or not that first
sentence, which requires them to have a ladder or platform
or staging. Would that first sentence under (c) also have
sufficed for a missing grizzly?
A.

Yes, sir, it could have.

..

Q.

Now, look up under "l" of the standard, where it says,
"Shall be equipped with mechanical devices or other effective
means of handling materials so that during normal operations
persons are not required to enter or work where they are
exposed to entrapment by the caving or sliding of materials."
Would the grizzly fall into the category of "equipped"
with mechanical devices or other effective means?
A. It would fall under "effective means."
as a walkway there.

*

*

*

*

*

*

*

*

*

It would serve

*

*

*

Q.

So you could have used either "l" or (c), but you chose
(b), right?

A.

Right.

Q.

Now, let me ask you this. Isn't it true this grizzly
is not a walkway or passageway in the usual understanding
of that term, is it?
I mean, people don't usually egress?
\

1958

A. No. In this case, the reason is the bin was enclosed on
three s·ides; there was no other way to get in there except
to step over and either stand on those supports or walk
the grizzly to free a hangup.
Had the grizzly been in there, there would have been
no accident. Had the grizzly been out and the man had to
free a hangup like it was, had he had on a safety belt there
would have been no accident.
Inspector Wilkie testified that Mr. Burnham told him that the grizzly
had been removed for four or five months, and although Mr. Wilkie had
conducted prior inspections at the plant, he could not state with any
certainty if he observed the grizzly in place (Tr. 47). The citations
were abated as soon as the investigation was completed and a new grizzly
was purchased and installed over the hopper (Tr. 51). A safety rope
and belt were installed at the hopper bin and a cable was also installed
inside the hopper to facilitate the coupling of the belt or rope (Tr. 53).
These actions remedied both of the citations (Tr. 79).
On cross-examination, Inspector Wilkie stated that he could not
specifically recall inspecting the hopper during any of his prior
inspections. He confirmed the fact that there is no specific safety
standard that requires a grizzly to be installed, and stated that a
grizzly is a grating device to size the coal and keep out extraneous
materials. He also indicated that a grizzly may serve as a walkway
and that MSHA has accepted this, but conceded that if coal were piled
on top of the grizzly, a person would have to walk over it (Tr. 65).
Mr. Wilkie described the hopper area, and he confirmed the fact that
Mr. Burnham was emotionally upset at the time that he interviewed him
shortly after the accident. He also described the operation of the
vibrator feeder pan at the bottom of the hopper and he believed that it
vibrated the walls of the hopper (Tr. 66-77).
In response to further questions, Mr. Wilkie stated that Mr. Burnham
advised him that the grizzly supports which are fixed to the walls of
the hopper are used for employees to stand on when freeing up coal hang-ups
in the hopper (Tr. 86).
MSHA Inspector Barton Collinge testified' that he discussed the
citations with Mr. Wilkie before they were issued, and he stated that
there is no mandatory safety standard which requires a hopper of the
type in question to have a grizzly installed on it (Tr. 113). He indicated
that the purpose of the grizzly is to facilitate the sizing of the coal
which was dumped into it and to prevent hang-ups. He explained the purpose
of the hopper, and indicated that it constituted a "screening process",
and that from his experience, when coal is hung up in the hopper it is
freed up by someone barring it down from the top. Usually, one stands
on the grizzly and places the bar between the openings for this purpose,
and in the instant case he did not know whether it could have been freed
up by someone standing on the hopper edge (Tr. 114-116).

1959

With regard to a question as to why the "walkway or passageway"
subsection was cited, Mr. Collinge responded as follows (Tr. 117):
THE WITNESS: Travelways -- bringing it under travelways,
it isn't really a travelway as such. It's not meant to be
a walkway. However, it is an area to do a function, and
the function was to free the hangup, and this is a normal
function in hoppers.
To be _very honest, we put it under this section because this standard deals with bins and hoppers. We have
had too many fatalities in our area in bins and hoppers.
We're very sensitive to them.
And, at pages 121-122:
THE WITNESS: Underground. But, if you'll pardon me,
I know a word here and there is important, but coming back
to the fact, the fact remains that there was a place to
work, whether they call it a platform or a walkway, and
the ·men would work on there, I would work on there. If it
was your job to make sure that coal went through there,
and to make sure the bin didn't hang up, as it would at
times with damp coal, to go out and punch it down and get
out of there. [sic]
Now, if the term "platform" would have been better,
maybe I couldn't argue that point. But "walkway", "platform", the function remained the same.
In further explanation as to why a separate walkway citation was
issued, Mr. Collinge stated that the removal of the grizzly resulted in
the removal of the walkway (Tr. 136-137), but he conceded that the grizzly
could also be classified as a platform under subsection (c), and that
the use of the two terms "is a matter of choice of words" (Tr. 144).
Further, explanation as to the issuance of a separate citation is reflected
in the following trial colloquy (Tr. 154-155):
JUDGE KOUTRAS: In this case, it seems to me that the
three conditions that were cited: the grizzly not being
there, failure to lock out, failure to provide a balt
or lanyard, all theoretically could come under (c) -MR. BATTLES:

I

agre~

with that.

JUDGE KOUTRAS: And since two of them only came -- the
belt and failure to lock out is in one, why wasn't
the other also included in there and then we just have
one citation. See?

1960

And that's what one of the defenses is, is that here
you're coming at us with a double barrel for a $20,000
assessment for essentially a violation of (c) rather than
(b) and (c). And that's simply what I'm trying to understand, is the theory as to why it was split out the way
it was.
Anything further, Mr. Battles, from the Government?
MR. BATTLES: No, that's all,, Yo.m: Honor. But looking
at these, they do seem to be ambi'gµo.us and overlapping.
Talking about the first. ane is; waJJtways: arrd.1 passageways -JUDGE KOUTRAS:
overlapping?
MR. BATTLES:
JUDGE KOUTRAS:
unusual about that.
MR. BATTLES:
surprise me.

Jiiat: a: minute.

What's ambiguous and

(b) and (c).
That's all right; there's nothing
That's what I'm saying.

This doesn't

Testimony and evidence adduced by the respondent
Harold·Burnham testified that he was the shift foreman on October 29, 1980,
and the accident victim, Norris Johnson, was employed as a general laborer
working under his supervision. Prior to the accident, he had instructed
Mr. Johnson to unstop the coal hopper, and this is normally done by
inserting an air lance from the bottom underside of' the hopper at the
vibrator pan, and freeing the coal by air pressure. Mr. Johnson had
unstopped it once during the shift, but when it was clogged a second time,
he instructed Mr. Johnson to go back to the hopper to check it out again,
but he did not go with him, since he had to continue making his shift
rounds (Tr. 160-167).
Mr. Burnham testified that when he drove up the incline to the
hopper entrance and got out of his truck, he observed Mr. Johnson on
the west side of the hopper standing on the metal ledge with a short
bar, and the coal was banked up inside the hopper. He identified the
location where Mr. Johnson was standing by reference to photographic
exhibits R-1 and R-4. Mr. Burnham stated that as he approached the
hopper on foot, Mr. Johnson had moved to the east side of the hopper and
appeared to be standing on the hopper ledge which serves as a support
for the grizzly. Mr. Johnson was using a long pole in his attempts
to free up some coal which had apparently clogged in the hopper, and as
he worked the pole through the coal it "caved out" and caught Mr. Johnson
as he was standing on the coal. Mr. Burnham reached over the hopper:
ledge and grabbed Mr. Johnson's arm in an attempt to free him,.,but~thec

1961

coal had him pinned against the side of the hopper (exhibit R-2).
Mr. Burnham then left the scene to turn the vibrator off and to summon
assistance, and in two or three minutes he had .returned with three other
persons to assist Mr. Johnson (Tr. 167-171).
Mr. Burnham testified that the accident was an instantaneous
occurrence, and just as Mr. Johnson stepped out onto the coal pile
and inserted the rod, the bottom coal fell out. The use of the
air lance from underneath the hopper had apparently created a cavity
under the coal pile, and when the pole was inserted it gave way and caught
Mr. Johnson (Tr. 173). Mr. Burnham stated further that he had in the past
stood on the hopper ledge to free up coal which had lodged in the hopper,
but that he had never instructed anyone, including Mr. Johnson, to walk
out onto the coal pile itself. The usual practice was to free any stoppage
from the underside with the air lance, and that "seventy-five percent
of the time it'll break loose from the bottom with an air lance" (Tr. 174).
Be did not believe that the fact that the vibrator was on contributed
to the severity of the accident, and he knew that the grizzly had been
removed, and he assumed that it was off for some four or five months
(Tr. 175).
On cross-examination, Mr. Burnham stated that bars are kept at the
hopper ~ocation to facilitate the freeing up of clogged coal when it cannot
be freed up from the underside by means of the air lance. He conceded
that he knew that the grizzly had been removed from the hopper for four
or five months and that no life lines or safety belts were around the
hopper area during this time. He did not know whether any safety belts
or lines had ever been used during the time the grizzly was off the hopper,
and he personally never observed any in use (Tr. 177). He conceded that
a belt or a line could have been tied off on a nearby catwalk handrail,
but that he had never had any occasion to use safety belts or lines
because the majority of the time, any clogged coal could be freed up by
use of the air lance (Tr. 178).
Mr. Burnham confirmed that Mr. Johnson was standing inside the metal
edge or ledge of the hopper at the moment the coal gave way, and he identified
the metal supports which hold the grizzly in place as those which are
depicted in photographic exhibit P-19, indicated that they are located
all around and inside the perimeter of the hopper and that he has stood
on them while attempting to free up clogged coal, and he candidly admitted
that he did not use a safety belt (Tr. 181).
Mr. Burnham stated that he did not know why the grizzly was removed,
but he did state that it was too small and slowed down the payloader
which dumped the coal into the hopper, and due to constant bumping by
the payloader, the grizzly was ''in bad shape'' (Tr. 182). With regard
to the vibrator, Mr. Burnham stated that it does not touch or shake the
hopper itself, but works independent of it (Tr. 183).
In response to further questions, Mr. Burnham indicated that the
function of the grizzly was to keep excess debris out of the coal which
dumped into the hammer mill and that at times the payloader would shake

1962

or bump the grizzly so as to break up the large lumpy coal which was
dumped on top.(Tr. 184). He also indicated that as a general laborer,
Mr. Johnson worked on different shifts on a rotation "as needed" basis.
He considered Mr. Johnson to be an excellent employee and he never had
any problems with him (Tr. 199). Mr. Burnham stated that it never
occurred to him to provide a safety line or belt at the hopper during
the time the grizzly was off (Tr. 200), and he stated that in the event
maintenance were required everything would be shut down (Tr. 202).
In response to a question as to why he believed the accident happened,
Mr. Burnham stated as follows (Tr. 205):
A. Well, there's the possibility that he could have
been in a little too big of a hurry and he misjudged the
ledge that he supposedly thought he was standing on.

Q. Let's assume that he were standing on the ledge, do
you think that's a good practice, for someone to stand on
that ledge and take a pole and stick it down in that coal?
A. Well, I have done it myself, but I've never told
anybody to, no, sir.

Q.

You know, people sometimes do things and later
reflect on it. Would you do it again? Stand inside on
that ledge and poke a stick down there without a life line
or a belt?
A.

No, sir.

Q. Do you normally shut down or lock out that equipment
when you poke from under with the air line?
A.

No. sir.

Q.

You don't require them to do that?

A.

No, sir.

There's nothing there to.

Robert A. Daffron, Assistant Administrative Supervisor, and Plant
Safety Director, testified as to his duties as safety director, and he
indicated that they include safety inspections, monthly meetings with employees
and supervisors, and the correction of safety deficiencies as they
are brought to his attention. He detailed the procedures he follows
in considering safety complaints which are brought by the safety committee,
and he produced a copy of the company's safety rules and practices (exhibit R-7).
Mr. Daffron also stated that as a general rule both he and the union
safety representative accompany all MSHA inspectors on their safety
inspections, and that safety notices and similar·materials are posted
on a bulletin board maintained in the canteen, as well as other plant
locations. He also indicated that copies of the part 56 mandatory safety

1963

requirements have been furnished to the employee union safety committee
as well as to all union officers. With regard to the grizzly in question
in this case, he testified that no one ever complained that the hopper
was unsafe because the grizzly had been removed, no safety reviews
have ever been requested because of any asserted hazard connected with
the hopper, and he indicated that he was not aware of the fact that the
grizzly had been removed (Tr. 211-220).
Mr. Daffron confirmed that a new grizzly was installed over the
hopper on the day of the accident, and he identified a photograph
(exhibit P-15) of the new grizzly. He stated that an MSHA inspection
had been conducted in August of 1980, and no one said anything about the
missing grizzly (Tr. 222).
On cross-examination, Mr. Daffron states again that he was unaware
that the grizzly had been removed, and stated that 40% of his duties are
devoted to safety matters. He did not know why the grizzly had been
removed, and he confirmed the fact that he had received a copy of an
MSHA safety publication (exhibit P-21), dated June 1980, dealing with
bins and hoppers. He stated that the grizzly which had been removed
from the hopper in question was not there for safety reasons (Tr. 222-224).
Regarding the company's safety record as reflected by MSHA's history
of prior violations (exhibit P-10), Mr. Daffron commented that its
"not good", and that "We strive for zero, but you never reach zero" (Tr. 226).
In response to further questions, Mr. Daffron states that Mr. Johnson
was a very good employee and that he never had any problems with him.
He also characterized Mr. Burnham as a hardworking, concientious, and
dedicated supervisor, but did state that the practice of an employee
stepping to the edge of a hopper to unclog coal in the hopper was not a
good practice (Tr. 227).
Gene Allen Sumner, testified that he is employed with the respondent
as headquarters Secretary and Controller. He testified as to the company's
corporate make-up, its competitors, and testified that the Ragland Plant
is the only manufacturing plant owned by the respondent. He also testified
as to the general market conditions concerning the supply and demand for
cement, and stated that respondent does not mine any coal, but does purchase
it. He also alluded to the fact that the respondent has expended in excess
of 50 million dollars for capital improvements, including air and water
pollution abatement (Tr. 228-235).
On cross-examination, Mr. Sumner confirmed .that the respondent
company is a totally owned subsidiary o"f a 'French .:company, and characterized
the respondent company as a "small cement company" (Tr. 237). He also
indicated that the company produces some 700,000 tons of cement annually
and employs 150 permanent hourly employees in addition to temporary hourly
seasonal people (Tr. 238).

1964

Findings and Conclusions
Fact of violation - Citation No. 082769
The respondent in this case has been charged with two violations
of the provisions of mandatory safety standard 30 CFR 56.16-2, which
provides as follows:
Mandatory. (a) Bins, hoppers, silos, tanks,
and surge piles, where loos~- unconsolidated materials
are stored, handled or transferred shall be -(1) Equipped with mechanical devices or other
effective means of handling materials so that during
normal operations persons are not required to enter
or work where they are exposed to entrapment by the
caving or sliding of materials; and
(2) Equipped with supply and discharge operating
controls. The controls shall be located so that spills
or overruns will not endanger persons.
(b) Where persons are required to move around
or over any facility listed in this standard, suitable
walkways or passageways shall be provided.
(c) Where persons are required to enter any f~cility
listed in this standard for maintenance or inspection
purposes, ladders, platforms, or staging shall be provided. No person shall enter the facility until the
supply and discharge of materials have ceased and the
supply and discharge equipment is l9cked out. Persons
entering the facility shall wear a safety belt or harness equipped with a lifeline suitably fastened. A
second person, similarly equipped, shall be stationed
near where the lifeline is fastened and shall constantly adjust it or keep it tight as needed, with
minimum slack.
Both of the citations which were issued by Inspector Wilkie in this
case were the result of the same event, the accident of October 29, 1980.
Citation 082768 charges a violation of subsection (c), and it was issued
because the hopper had not been locked out and the accident victim was
not wearing a safety belt of lifeline. The locking out of the equipment
and the use of a belt or line are set out as separate and distinct mandatory
requirements in subsection (c), yet the inspector issued only one citation
covering both of these requirements. However, he issued citation 082769
as a separate citation because the grizzly had been removed and was not
replaced.
Citation No. 982769 charges the respondent with a violation of
subsection (b) of section 56.16-2, which requires that suitable walkways
or passageways be provided where persons are required to move around or

1965

over hoppers. The. inspector issued this separate citation because the
grizzly which normally would be in place over the coal hopper or bin in
question had bee~ removed and not replaced. The inspector considered
the grizzly to be a "walkway or passageway", and since it was not in
place, he believed that a violation of s1ilisection (b) occurred.
The terms "walkway", "passageway", and "grizzly" are not further
defined by the regulations, and the term "grizzly" is not even mentioned
irt section 56.16-2. However, the Dictionary of Mining, Mineral, and
Related Terms, published by the Bureau of Mines, U.S. Department of the
Interior, 1968 Ed., at pg. 513, defines "grizzly" as follows:
a. Gua.rdrails or covering to protect
chutes, manways, winzes, etc., in mines. Fay.
b. A device for the coarse screening or
scalping of bulk materials. See also bar
grizzly; grizzly chute; live roll grizzly,
ASA MH4.l-1958. c. A rugged screen for rough
sizing at a comparatively large size (for
example, 6 inches or 150 millimeters); it can
comprise fixed or moving bars, disks, or shaped
tumblers or rollers. B.S. 3552, 1962.
Respondent's answer to the proposal for assessment of a civil penalty
for this alleged violation denies that subsection (b) of the cited
standard requires that a grizzly or grid be installed in the bin hopper
or that a walkway is required over the area in question. Respondent
also maintains that no employee is "required" to move on or over the
hopper or bin, and argues that the grizzly is not a walkway or passageway
within the normally acceptable meaning of those terms because the hopper
is enclosed on three sides and mine employees do not traverse or pass
through the area as ·a regular means of moving about the area. The
inspector who issued the citation believed that men routinely were
required to move over and about the grizzly when it was in place so as
to facilitate the clearing out any blockage or unusually large chunks
of coal by means of a long pole or rod which is inserted between the
opening of the grizzly.
On the facts presented in this case, I believe it is reasonable
to conclude that the accident would not have occurred had the grizzly
been in place. I believe it is also reasonable to conclude that if a
person walks out on a pile of coal which has been dumped into a hopper
for the purpose of inserting a long pole or rod in it to free some of the
coal which has been "hung up" in the hopper chute, he exposes himself
to a hazardous situation and may become entrapped in the coal as it is
freed up under his feet. The same may be said of the individual who
may stand on a grizzly support bracket inside the hopper. He exposes
himself to the danger of falling into the hopper. In both of these situations,
I believe that the provisions of either subsection (a)(l) or the first
sentence of subsection (c) of section 56.16-2, more directly fit the
facts presented in this case, and my reasons for these conclusions follow.

1966

Subsect_ion (a) (1) of section 56 .16-2 specifically requires the
use of mechanical devices or other effective means of handling materials
so as to preclude persons from being entrapped by caving or sliding
materials, and the first sentence of subsection (c) requires the use
of platforms or staging where maintenance or inspections have to be
performed. In my view,_ these sections are more directly applicable in
this case, and strict application and enforcement of these subsections
are more appropriate than the "walkway or passageway" requirement relied
on by Inspector Wilkie.
Petitioner's counsel candidly conceded that the removal of the
grizzly is not per se a violation of any mandatory safety standard, even
though the inspector considered it to be an adequate walkway when it
was in place (Tr. 221). Although recognizing that the inspector
obviously believed that a grizzly which suffices as a platform may also
be considered a walkway or passageway, he candidly questioned this
conclusion, and agreed that the fact that someone has to stand on
a grizzly doesn't necessarily transform it into a walkway in the normal
sense of that word (Tr. 100, 104). He also conceded that the grizzly
in question was not normally used as a travelway or walkway by miners,
and he observed that while another safety standard covers "safe means
of access" to working places, that standard was not cited in this
case (Tr. 102).
Inspector Wilkie also conceded that there is no mandatory safety
standard which requires that a grizzly be installed or maintained in
place over a hopper or bin such as the one which has been cited in this
case. On the facts of this case, it seems obvious to me that Mr. Wilkie
views the terms "grizzly", "walkway", and "passageways" as interchangeable,
notwithstanding the fact that from his own admission a grizzly is another
term for a grate or filter whose principal function is to size materials,
and that the grizzly in this case was enclosed on three sides by the
hopper walls and was not a normal travelway for miners to come and go
from the area.
With respect to petitioner's comment in the course of the hearing
that the respondent could have been cited with a "safe access" violation
pursuant to section 56.11-1, that was precisely what was done in a recent
case decided by Judge Steffey on December 1, 1980, in MSHA v. A.H. Smith
Stone Company, Docket VA 80-2-M. In that case an employee was attempting
to climb out of a crusher feeder after performing some maintenance,
somehow lost his footing while standing on the grizzly, and fell into
the crusher suffering fatal injuries. The company was charged with a
violation of section 56.11-1, for failing to provide secure and safe
footing or a handrail to facilitate the employee's safe exit out of
the crusher. The circumstances presented in the Smith Stone case are
similar to those which prevailed in the instant case, yet the inspector
there chose to cite the safe access safety requirements found in section
56.11-1, rather than those dealing with bins and hoppers.

As indicated earlier, petitioner has conceded that the removal
of the grizzly was not in .violation of any safety standard (Tr. 221).
Further, while Inspector Collinge expressed a concern over reported
bin and hopper accidents, MSHA's safety publication dealing with the
hazards connected with bins and hoppers (exhibit P-21) contains not
one word about the necessity for maintaining grizz.ly' s in place over
such bins and hoppers. The emphasis in the publication is directed
to the use of safety belts and lines, and to the deenergizing of the
equipment, and not one of the sketches depicting miners standing over
and inside hoppe·rs and bins show a grizzly anywhere in sight. It seems
to me that if bins and hoppers do in fact present hazardous situations
in the every day mine work environment, then MSHA should promulgate a
mandatory standard directed at the specific hazard surrounding the use
of a grizzly. Reliance on walkway, passageway, and other such
nonsensical standards to the facts of this case contribute much to
confuse the issue and very little in terms of safety guidance.
In this case the petitioner has proposed maximum penalty assessments
of $10,000, for each of the two citations. Although section llO(a)
provides that "each occurrence of a violation of a mandatory health
safety standard may constitute a separate offense", I do not believe
that multiple violations stemming from the same event should be issued
in such a manner as to result in arbitrary punitive sanctions. In
this case, I believe that the inspector relied on subsection (b) because
he believed that subsection (b) most nearly covered the situation at
hand. In short, the inspector did the best he could with the standard
as written, and while I symphathize with an inspector who often must
choose among standards which may be imprecise, confusing, or contradictory,
an operator should not be unduly penalized and subjected to an additional
$10,000 civil penalty assessment because the inspector made the wrong
choice. In my view, the purpose of a civil penalty assessment proceeding
is not only to deter future violations, but it should serve to put the
operator on notice as to what is required of him in terms of future
compliance. Penalty assessments for alleged violations which come "close"
to a mandatory standard simply do not achieve these goals. The best
method that I can think of to cure such a problem is to clarify ambiguous
standards through the promulgation and application of standards which
make sense.
In view of the foregoing, and after careful consideration of all
of the testimony and evidence adduced on the record, including the arguments
made by the parties in support of their respective positions, I conclude
and find that the petitioner has failed to establish a violation of
subsection (b) of section 56.16-2, as charged on the face of citation 082769.
I believe that a reasonable interpretation of the terms "walkways"
or 'passageways" simply does not support the inspector's belief that the
grizzly was such a walkway or passageway. Respondent's testimony establishes
that the hopper in question was enclosed _on three sides and that it
was not regularly used as a means of travel by any mine personnel.
In my view, the fact that someone must stand on a piece of equipment to
perform some function does not necessarily transform it into a walkway
or passageway. Citation No. 082769 is VACATED.

1968

Fact bf violat·ion - Citation No. 082768
Citation No. 082768 charges a violation of subsection (c) of section
in that the hopper in question had not been locked out and the
ac0ident victim was not wearing a safety belt or lifeline when he entered
the hopper to poke ·around with a pole in his attempts to clear out some
coal blockage.
56~16-2,

It seems clear to me from the testimony and evidence adduced in this
case that Mr ..Johnson was not wearing a lifeline or safety belt as required
~by the cited standard.
Inspector Wilkie testified that he observed no
safety belt o.r line at or near the vicinity of the hopper, but that one
was available in the kiln room. Respondent's evidence and testimony
in defense of the citation does not rebut the fact that Mr. Johnson
was not wear·ing a belt or lifeline and' shift supervisor Burnham admitted
this. Although the standard does not tequire that a belt or lifeline
be kept at a hopper or bin, it specifically requires a person entering such
a facility' to ·wear' one, and it also requires that a second person be
nearby ·to tend the line. Under the circumstances, I conclude and find
that the petitioner has established the ·conditions cited by the inspector,
and that said conditions constitute a vioiation of the cited standard.

~

With:regard to the allegation that the hopper discharge equipment
had not been,shut off and locked out at the time Mr. Johnson attempted
'to d~slotlg~ the co~l in.the hopper, I also conclude and find that the
petitioner has established this fact through a preponderance of the
evidence -adduced in this case. Respondent has offered no testimony or
evidepce ·to rebi:it. thii:; fact, and I find that the condit·ions cited
also constitute a violation of the cited standard. Although there is
some _ques.tion. as _to.whether the' fact· that the hopper vibrator had not
;.been shut down' and locked out contributed to the gravity of the violation,
. this may ·not ·s·erve as .a defense· to the citation, but may serve to mitigate
the seriousness of the violation.
One of the respondent's defenses to the citation is the assertion
that Mr. Johnson was not required to enter the hopper, and since the
cited.standard uses this language, respondent argues that the petitioner
has not established that his supervisor Mr. Burnham gave him a direct
order to enter the hopper, or otherwise required him to do so. This
defense is rejected. It is clear from the facts of this case that
Mr. Burnham instructed Mr. Johnson to go to the hopper facility to check
out ·the coal blockage and to do what was necessary to take care of the
problem. Although the usual method of freeing up coal from the hopper
was to use an air.device inserted from the underside of the hopper,
it is also true that on several ocassions employees had to do this by
means of long poles or rods which were kept at the hopper for the
specific purpose of inserting them into the top of the coal to dislodge
any coal which had hung up in the hopper. Mr. Burnham admitted that
this was the case, and he also admitted that he himself has used this
procedure in the past. He also admitted ·that he has stood on the grizzly

1969

brackets which are.located along the inside top wall of the hopper and
inserted the rods or poles into the coal for the purpose of dislodging
large coal particles or hang-ups.
A second defense to the citation is the assertion by the respondent
that Mr. Johnson had not entered the hopper at the time of the accident,
but was merely standing outside or on the perimeter of a metal ledge or
"lip" which served as a barrier for the endloader as it dumped the coal
into the hopper. This defense is likewise rejected. I believe it clear
from the testimony and evidence adduced in this case that Mr. Johnson
was standing on
grizzly bracket located inside and along the top inner
wall of the hopper when Mr. Burnham first observed him, that he stepped
out onto the coal itself when he inserted the pole or rod, and that he
was in fact on the edge of the coal pile when the bridged coal gave way
and pinned him against the hopper wall. Mr. Burnham candidly admitted
during testimony at the hearing that this was the case, and while it may
be true that Mr. Johnson may not have been standing clearly out and in the
middle of the coal pile as implied by the sketch which is a part of the
accident report (exhibit P-3), I conclude and find that he was standing
at the edge of the coal pile when it gave way and that this supports a
finding that he had entered the hopper. Even if he were standing on the
grizzly bracket, I would still find that he had entered the hopper.

a

One final defense suggested by the respondent during the course of
the hearing is the suggestion that the accident was an unfortunate incident
which resulted through no fault of the respondent, and that the respondent
did all that was humanly possible to assist Mr. Johnson and to save his .
life. Assuming that this were the case, it is clear from the legislative
history of the act, as well as some of the precedent decision that a
civil penalty may be imposed on a mine operator for a violation even though
the operator is without fault, J & H Coal Company, 2 IBMA 20 (1973);
Valley Camp Coal Company, 1 IBMA 1976, 1 IBMA 245 (1972); Armco Steel Corporation,
6 IBMA 64 (1976). In other words, lack of negligence cannot excuse a
violation, but it may be considered in mitigation of the amount of the
penalty, Webster County Coal Company, 7 IBMA 264 (1977). See also:
Heldenfels Brothers Inc., 1980 OSHD 24,606, where the Commission affirmed
the decision of a Judge assessing a civil penalty against an operator
even though he found that the driver of a mobile scraper was responsible
for the accident that caused his death. On review by the Fifth Circuit
on January 15, 1981, the Court affirmed the decision, Heldenfels Brothers,
Inc. v. Marshall,£!_. al., Civ. No. 80-1607.
In view of the foregoing findings and conclusions, Citation No.
082768 is AFFIRMED.
Size of Business and Effect of Civil Penalty of Respondent's Ability to
Remain in Business.
The parties stipulated that a civil penalty assessment in this case
will not adversely affect the respondent ,.s ability to remain in business.
With regard to the size of the respondent's cement operation, there is a

1970

,•,

'·

dispute as t.o whether it is a large or small operation. Petitioner asserts
that it is a large operation and its conclusion in this regard is based
on the fact that respondent is a subsidiary of a larger foreign corporation
whose annual man-hours and production were greater than that of the named
respondent.
Respondent's secretary~controller characterized the Ragland Plant
as a "small cement company", employing approximately 150 permanent hourly
employees, producing some 700,000 tons of cement on an annual basis.
The parties stipulated that for the year 1979, the Ragland site had
353,981 man-hours of production at that operation.
After consideration of all of the evidence and testimony adduced
with regard to this issue, I conclude and find that the respondent is a
medium-sized operator for purposes of any civil penalty assessment made
by me in this case.
Good Faith Compliance
The parties stipulated that the violations issued in this case were
abated in a timely manner and that the respondent demonstrated good faith
in abating the conditions. I adopt this stipulation as my finding
concerning this question.
History of Prior Violations
The respondent's history of prior violations is reflected in exhibit
P-10, an .MSHA computer print-out which shows that respondent has paid
civil penalty assessments for a total of 86 citations issued during the
time period October 29, 1978 through October 28, 1980. Although Inspector
Wilkie characterized the respondent's prior compliance history as "poor"
or "bad", I take note of the fact that the bulk of the prior citations
concern non-compliance with two standards, namely, the guarding
requirements of section 56.14-1, and the travelway safe-access requirements
of section 56.11-1. The prior history reflects only one prior citation
for a violation of section 56.16-2, for which the respondent paid an
assessment of $210 on August 18, 1980, approximately two months prior
·to the accident in question. Since the details of that citation are not
of rec.ord, · I have no way of evaluating the circumstances of that violation
as they may reflect on the facts presented in the instant case. The same
may be said of the 23 prior safe-access citations concerning section 56.11-1.
Absent any information concerning the circumstances surrounding those
citations, I have no way of determining whether those prior citations
involved.a hopper or bin of the type which is the subject of the instant
proceeding.
Aside from the itemized listing of the prior citations, I have taken
into consideration the testimony of Inspe_ctor Wilkie that the respondent
has always been cooperative during his inspections (Tr. 15), that safety
director Daffron has been courteous and cooperative on safety matters, and

1971

has been eager to take corrective action where required (Tr. 83-84).
I have also considered Inspector Collinge's testimony indicating his
belief that the respondent's safety program needs improvement, that
respondent's safety record, as compared to comparable operations is not
too good, and the views expressed by both inspectors that safety director
Daffron does not spend as much time as he should on safety matters
(Tr. 131).
In view of the foregoing discussion, I cannot conclude that the
respondent's overall safety record or prior history of violations is
such as to warrant any additional increase in the civil penalty which
I have assessed for the citation which has been affirmed. On the other
hand, I cannot conclude that respondent'ss:i.fety record is such as to
warrant any special consideration or reduction in the civil penalty which
has been assessed for the citation in question.
Gravity
The accident which occurred in this case resulted in the untimely
and unfortunate death of a plant employee. Although the record supports
a finding that his supervisor and fellow employees did all that they could
to save his life, the fact is that the violation resulted in a fatality.
While no one can say for certain that the use of a safety belt or life
line would have prevented the victim's death, I believe that it may have
kept him from being covered with coal until more help arrived. Mr. Burnham's
frantic efforts to keep the victim from sinking deeper into the coal
pile came to an end after ten or fifteen minutes when Mr. Burnham became
exhausted and could no longer hold onto to him. A safety belt or line
tied to the victim would have permitted Mr. Burnham ample time to summon
additional help and possibly save the victim's life. In these circumstances,
I find that the violation was very serious and this is reflected in the
civil penalty which I have assessed for the violation in. question.
Negligence
On the facts presented in this case I conclude and find that the
failure by the respondent to insure that Mr. Johnson had a safety belt
or line attached to his person while he was poking around the coal
piled on top of a hopper which had the grizzly removed for a prolonged
period of time amounted to a reckless disregard for Mr. Johnson's safety,
and that this constitutes gross negligence. While it is true that the
accident may have been a sudden or spontaneous occurrence, the record in
this case establishes that the g zzly which normally covered the hopper
had been removed for a period of some four or five months and that
Mr. Burnham was aware of this fact. More surprisingly, the safety director,
Mr. Daffron, was unaware of this fact, and I can only conclude that his
ignorance in this regard resulted from his failure to inspect the hopper.
Although Mr. Daffron stated that the grizzly is normally installed
to size and filter larger coal particles, the fact is that it was at
least used part of the time for men to stand on and poke down through
the openings to free coal which had become lodged in the hopper. Once the

1972

grizzly_ was removed, mine management, through Mr. Burnham, should have
•
been aware of the fact that employees would likely stand on the grizzly
supports inside the hopper so as to facilitate the use of the pole or
rod to free up the coal, and poles and rods were kept at the hopper for
this purpose. As a matter of fact, Mr. Burnham admitted that he had
often done this without the use of a safety belt or line, and he watched
Mr. Johnson do precisely the same thing on the day of the accident,
and did not caution him or insist that he wear a safety belt, even though
one was in the kiln room. The fact that he did not think to provide
him with a safety belt or.line is no excuse.
With regard to the question of whether the failure to de-energize
the hopper or vibrator contributed to the severity of the accident,
petitioner's counsel candidly admitted that it was difficult to prove
that this was in fact in case, and he did not believe that this particular
element of the case was significant. Although recognizing the fact that
the feeder vibrator was installed in conjunction with the hopper bin
for a particular purpose, he nonetheless conceded that there is nothing
in the record to conclusively establish that the fact that the vibrator
was not shut down prior to the time Mr. Johnson entered it to try and
dislodge the coal with a pole contributed to the gravity of the violation
(Tr. 192-194).
The official accident report states that the vibrator and discharge
pan were attached to the bottom of the hopper, and it also contains
the inspectors' conclusions that "failure to ce-energize and lock-out
the discharge vibrator possibly contributed to the severity of the accident''.
Inspector Wilkie described the feeder pan vibrator and identified
it as depicted in photographic exhibits R-5 and P-12 (Tr. 76-77). He
testified that the feeder pan vibrates and shakes the coal down into the
pan, which in turn feeds it into the mill. He indicated that it was
his understanding that the vibrator vibrates the walls of the hopper
(Tr. 77). He also indicated that no one should enter a bin or hopper if
the vibrator is on, and even if one were wearing a safety belt, that would
not suffice for compliance if the vibrator is operating (Tr. 98).
Respondent's witness Burnham testified that the vibrator feeder
pan is not attached to the hopper and does not touch it. However, he
did indicate that the hopper fits down inside the feeder pan and has
about an inch of clearance all around the pan. The coal drops from the
hopper into the feeder pan where it is vibrated into a coal hammer mill
for crushing by means of a belt, and he denied that the vibrator vibrates
the hopper bin (Tr. 163-164; 183). He also expressed the opinion that
the fact that the vibrator was on or off would have made any difference
as to the severity of the accident which occureed (Tr. 174-175). However,
Mr. Burnham did state that as a general rule it would be advisable to
lock out the vibrator before entering the hopper (Tr. 207-208).

1973

After careful consideration of the testimony and evidence adduced
with r~gard to the failure to lock out the hopper, I cannot conclude
that the respondent was grossly negligent, or that the failure to shut
down the vibrator directly contributed to the severity of the violation.
Mr. Burnham testified that the vibrator is not required to be de-energized
when the air spike is used to dislodge coal from the hopper. Further,
it seems obvious to me that when Mr. Burnham happened on the scene and
saw Mr. Johnson engulfed hy the coal in the hopper, his first reaction
was to attempt to free him, and I cannot conclude that his failure to
immediately shut down the vibrator constituted a serious omission
on his part. Further, absent any testimony from the inspectors as to
whether or not the energized vibrator contributed to the gravity of the
violation, an increased assessment based on speculation in this regard
is simply not warranted. On the facts of this case, I believe that the
cone-shaped configuration of the hopper, as well as normal gravity did
more to prevent Mr. Johnson's ready escape from the hopper than did the
fact that the vibrator was not shut down, particularly in light of the
unrebutted testimony by Mr. Burnham that the vibrator is not afixed to
the hopper and did not affect the severity of the violation.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty in the amount of $7,500 is reasonable and
appropriate for the citation which I have affirmed, and respondent IS
ORDERED to pay the assessed penalty within thirty (30) days of the date
of this decision and order.

~~K!a~
Administrative Law Judge

Distribution:
Murray A. Battles, Esq., U.S. Department of Labor, Office of the Solicitor,
1929 S. Ninth Ave., Birmingham, AL 35256 (Certified Mail)
J. Ross Forman, III, Esq., 1600 Bank for Savings Bldg., Birmingham, AL
35203 (Certified Mail)

1974

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

SECRETARY OF LABOR,
MINE SAFETY Ai"\/D HEALTH
ADMINISTRATION (HSHA),

•

2i 198)

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 81-37
A.G. No. 11-01526-03014-I

v.
Leahy Mine
AMAX COAL COHPANY,
a division of AHAX, INC.,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
Petitioner;
R. Stephen Hansell, Esq., Amax i::oal Company,
Indianapolis, Indiana, for Respondent.

Before:

Administrative Law Judge Joseph B. Kennedy
Statement and Findings

This case is before me on cross-motions for
stipulation of facts.
hearing.

suTIL.~ary

decision and a joint

The parties have waived the right to an evidentiary

Respondent has also filed a motion to dismiss raising the same

issues as the motion for summary decision.

Respondent's motions will be

considered together.
The parties have agreed to the following relevant facts:
On October 12, 1979, inspectors Joseph Wolfe and Ronald Zara of the }line
Safety and Health Administration conducted an investigation at respondent's

1975

Leahy Mine.

The inspection was due to the occurrence of an electrical burn-

type accident which occurred on October 11, 1979, at approximately 3 p.m.
Prior to October 11, 1979, respondent experienced a continuing problem
with the elevator motor circuit in the preparation plant, in that the elevator
motor circuit would "trip" or "overheat" the breaker and as a result respondent would have to reset the circuit and the load in order to continue normal
operations.
On October 11, 1979, at approximately 3 p.m., Greg Morris, a qualified
electrician and employee of respondent since 1968, was assigned to locate and
repair the problem with the elevator motor circuit in the preparation plant.
He had been aware of the problem and opened the circuit breaker panel cover.
He then deenergized only the elevator motor circuit within the panel by
switching the breaker to the "off" position.
were not deenergized.

Other circuits within the panel

Mr. Morris proceeded to check each connection with his

screwdriver to see if there were any loose connections that were causing the
problem.
In the course of checking the circuit, Mr. Morris used a screwdriver on
an energized circuit above the open breaker, which caused an electrical arc.
As· a result, Greg Morris was severely burned on the face, neck, and arms.
He was hospitalized for approximately one (1) week and lost three (3) weeks
of work.
On October 12, 1979, respondent received Citation No. 0774168.

It

charged that a violation of 30 C.F.R. § 77.500 occurred in that the circuit

197£)

supplying three-phase, 480-volt AC power to the No. 2 elevator was not deenergized prior to work being performed on the circuit.

Respondent abated the

citation by instructing all electrical foremen and electricians not to work on
energized electrical equipment and by posting the regulation in the bathhouse
and preparation plant.
The special assessment in Citation No. 0774168 was not received until
September 25, 1980, approximately 11-1/2 months after the accident occurred.
In 1980, respondent employed approximately 329 employees at the Leahy
Mine.

The daily production at the mine is approximately 7,434 tons of coal;

annual production is 2,713,357 tons.

Respondent operates nine surface mines

and one deep mine employing 3,620 miners and 801 non-mine employees.

Annual

production of all of respondent's mines was 40,547,065 tons in 1980.

Respon-

dent had 35 violations assessed in the 24 months prior to the instant violation.

Respondent does not contend that payment of the maximum penalty would

impair its ability to continue in business.
Conclusions

A.
1.

The operator contends that it is contrary to law for MSHA to wait

almost 1 year for the proposed assessment of a civil penalty.

Section 105(a)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
(the Act), requires that the Secretary notify the operator by certified mail
of the civil penalty proposed to be assessed "within a reasonable time."
Respondent argues that as a matter of law, 361 days is not a reasonable time.

Petitioner has argued that the necessity of assessing the penalty under
30 C.F.R. Part 100 procedures caused the delay and that respondent has shown
no prejudice resulting from this delay.
Respondent has been unable to point to a single item of evidence or a
single witness unavailable to it today that would have been available if the
assessment had been proposed at an earlier date.

Absent a showing of preju-

dice, I conclude that MSHA, as a matter of law, has not violated section
105(a) of the Act.

In this I agree with Secretary of Labor v. Heldenfels

Brothers, Inc., 1 MSHC 2414, (April 8, 1980), rev. den., 2 FMSHRC
(May 1980), aff'd. mem. 636 F.2d 312 (5th Cir. 1981), in which the judge found
220 days was not an excessive amount of time for the assessment of a civil
penalty, absent a showing of actual prejudice. 1_/

I find the assessment of

the penalty in this case was not,~~, prejudicial to the operator's right
to a fair hearing nor ultra vires as claimed by the operator.
Respondent also asserts that taking a period of almost 1 year for a
proposed assessment violates 30 C.F.R. § 100.5 and is not in accord with the
purposes and policies of the Act.

Section 100.S(b) states:

"The Office of

Assessments shall make an initial review of the citation or order and shall
l/· USHA has at last clarified what it considers a reasonable time for the
serving of an initial proposed assessment in a civil penalty case. See, MSHA
Policy Memorandum No. 81-3A. Hy determination that 1 year for the assessment
of a proposed penalty is not in violation of the Act is also in accord with
the Commission's recent decision, Secretary of Labor v. Salt Lake County Road
Department, 3 FHSHRC
(July 28, 1981), in which the Commission found that
a late filing of a proposal for a penalty under Commission Rule 27 is excused
by the Secretary's claim that a lack of clerical personnel and a high volume
of cases caused the delay. The Secretary in this case has pointed out that
the need to comply with the requirements of Part 100 was the reason for the
length of time taken by the Office of Assessments.

1978

immediately serve by regular mail a copy of the Results of the Initial
Review."

This section requires that the results of the initial review, when

completed, must be served "il1ll!lediately."

There is no evidence that the Office

of Assessments failed to serve Respondent immediately once it had made its
initial review.

Therefore, Respondent's argument is without merit.

Further-

more, although it is clear that prompt assessment of penalties promotes the
safety of the miners and the policies of the Act, where there has been some
delay but no showing of prejudice to the operator, the purposes of the Act
would be completely defeated by a dismissal of the case.

The Supreme Court

has said in reference to the 1969 Act:
[i]f a mine operator does not also face a monetary penalty for
violations, he has little incentive to eliminate ·dangers until
directed to do so by a mine inspector. The inspections may be
as infrequent as four a year. A major objective of Congress
was prevention of accidents and disasters; the deterrence provided by monetary sanctions is essential to that objective.
National Independent Coal Operators' Association v. Kleppe, 423 U.S. 388 (1976).
2.

Under 30 C.F.R. § 100.4, the Mine Safety and Health Administration

may issue a special assessment in cases of "fatalities and serious injuries

* * *·"

Where the victim spent 1 week in the hospital, lost 3 weeks of work,

and could have been killed, it is futile to argue that the injury was not
"serious."

I note that respondent's own Supervisor's Report (R..'\-4) charac-

terized the injury as "serious."

It also was not improper for the Office of

Assessments to make use of a Special Assessment without a finding of negligence.
to~

The Supreme Court has held that where a proposed assessment is subject
novo review, there is no requirement that the proposed assessment

include findings of fact.

Kleppe v. Delta Mining, Inc., 423 U.S. 403 (1976).

1979

Under section llO(i) of the Act, the administrative law judge assesses
penalties de novo.
(June 7, 1979).

Secretary of Labor v. Shamrock Coal Company, 1 MSHC 2069

He is in no way bound by the proposal of the Assessment

Office nor by the procedures of Part 100.
Company, 1 MSHC·2356 (April 21, 1980).

Secretary of Labor v. Co-op Mining

The respondent can present evidence as

to each of the statutory criteria to the administrative law judge and such
evidence will be given full consideration.

Therefore, respondent has in no

way been prejudiced by any deficiency in the proposed assessment.

B.
Respondent contends that no violation of 30 C.F.R. § 77.500 occurred
because:
[t]he portion of the panel on which work was to be done was,
in fact, de-energized before work was done on the equipment.
(Proposed Stipulation of Fact No. 16). The problem arose when
the qualified electrician attempted to adjust a connection on a
separate part of the panel which was a separate circuit, * * *·
[Emphasis in original.] Respondent's Me1aorandum in Support of
t1otion for Summary Decision. (R. Memo).
The question before the court is whether the victim was performing work
on an energized circuit at the time of the accident.

It makes no difference

if the victim had deenergized another circuit, if he also worked on a live
circuit.

Both the company's argument and the record as a whole support the

conclusion that the victim deliberately performed some action on an energized
circuit.
MSHA Accident Report Form 7000-1, completed by Richard G. Stanfield (RX-3)
states:

"[a]s he [Mr. Morris] was tightening connections on the top side of

1980

the circuit breaker with the power on, the screwdriver came in contact with
the side of the motor control center causing voltage to go phase to phase on
top of the breaker. 11

The work activity listed on the fonn is 11 repairing

electrical circuit breaker."
The Amax Coal Company Supervisor's Report (RX-4) similarly described the events:
He [Mr. Morris] turned the breaker off and checked the connections on the motor starter and heaters. Then he started to
tighten the connections on the top side of the circuit breaker
with the power on (480 volts). He tightened the first one
when he started on the second one the crewdriver [sic]
contected [sic] with the side of the motor control~* *
As a contributing cause, the report lists 11 employee failed to de-energize
circuit breaker before performing electrical maintenance. 11
The program coordinator, William Melcher, reported that Greg Morris "said
he knew better; that he knew there was no way he could lose control of that
screwdriver - he had both hands on it 11 (RX-7) (Emphasis in original).
The statement signed by Mr. Earl Butler, foreman, (RX-8) reports that
Mr. Morris checked each connection behind the [open] breaker to see if there
was a loose connection.

11

When he didn't find any problem, he did go to the

line side of the breaker * * *· Greg told Homer Pits and Gary Degenhardt that
he screwed up, he knew better than that, he just wasn't thinking at the time. 11
Pete Rhodes investigated the accident for the company and prepared an
interoffice memorandum (RX-9).

He concluded:

1981

[n]o electrical work should have taken place on any part of the
•
circuit while it was energized. The electrician
reportedly
stated that he was trying to tighten the lug screws on the
bottom part of the refuge elevator breaker and has mistakenly
worked on the top. This I would consider as an unsafe act or
error by a qualified electrician.

From the· statements made by company officials and reportedly by Mr. Morris,
I conclude that Mr. Morris intentionally attempted to repair part of a live
electrical circuit rather than pull the main breaker.
The company contends that Mr. Morris was testing or troubleshooting at
the time of the a~cident, citing Secretary of Labor v. United States Steel
Corporation, 2 FMSHRC 3220 (November 3, 1980).
contradiction to the evidence cited above.

This contention is in direct

Mr. Morris was attempting to

tighten the lug screws at the time he received the electrical shock.

No evi-

dence has been put forward to show that· any procedure he may have contemplated required that the electrical circuit be live so that he could test for
an electrical problem.

In United States Steel, supra, the judge found that

the mechanic was merely attempting to loosen a bolt so that he could remove a
guard and observe the oil hose on the continuous miner. If the mechanic had
not been able to see the oil leak, the oil pump would have had to be restarted
so that the oil leak could be located.

In this case, Hr. Morris assumed that

the problem with the elevator originated in the circuit box and was attempting
to repair the circuit by tightening all the screws without deenergizing all
the circuits.
Even if Mr. Morris did not intend to work on the upper energized circuits,
he was in violation of section 77.500.

The MSHA Inspector's Manual states:

1982

"[w]hen work is performed in close physical p~oximity to exposed electrical
circuits or parts, they shall be deenergized * * *·

All circuits within an

electrical enclosure shall be deenergized before work is performed within the
enclosure unless. such energized circuits are guarded by suitable physical
guards or adequate physical separation."

The photographs and sketches pro-

vided by respondent (RX-9; RX-10) show that both the energized and deenergized
circuits were located within the same circuit box.

The very hazard presented

by working on circuits located in close proximity to energized circuits, is
the danger of contacting such circuits.

I find that a violation of section

77.500 did, in fact, occur.

c.
Respondent asserts that it should be relieved of liability under the
Isolated Misconduct Defense.

Although there is such a defense under the

general duty clause of the Occupational Safety and Health Act, the Mine Act
is a strict liability statute and the operator is liable for violations of
its agents and employees under the doctrines of respondeat superior and
vicarious liability.

Secretary of Labor v. Ace Drilling Coal Co., Inc., 1

FMSHRC 2357 (April 24, 1980) aff'd mem. 642 F.2d 440 (3rd Cir. 1981);
Secretary of Labor v. Warner, 1 MSHC 2446 (April 28, 1980); U.S. Steel
Corporation v. Secretary of Labor, 1 MSHC 2151 (September 17, 1979);
Secretary of Labor v. Nacco Mining Company, 3 FMSHRC 848 (April 29, 1981);
cf. Houston Systems Manufacturing Company, Inc., 1981 OSHD, CCR, , 23,024.
The claim of employee misconduct, which the operator has failed to
support, can be considered a mitigating circumstance under the negligence

1983

criteria of section llO(i) of the Act.

"Only conduct that is willfully reek-

less, obviously inexplicable, demented or suicidal can reduce imputable conduct amounting to gross negligence to that of slight negligence."

Warner,

supra; accord, Marshfield Sand and Gravel, Irie., 1 MSHC 2475 (June 10, 1980).
The company admits that Mr. Morris's conduct was not willfully reckless,
demented or suicidal (R. Memo at 17).

I must agree.

This is not a case in

which a supervisor or foreman took it upon himself to perform an inexplicable
action which caused danger only to himself.

Here an ordinary employee subject

to the oversight and direction of others performed a task in a manner which
assisted the company in maintaining production.

I cannot conclude that the

miner was unaffected by the knowledge that had he completely deenergized the
circuit box by pulling the main breaker 4 feet away, he would have shut down
some 26 other systems, including centrifuges, oil pumps, conveyors, breakers,
feeders, vibrators, screens, crushers, blowers, etc. 2/
Where there is independent negligence on the part of the company, the
unexpected action of its employee will not relieve the company of liability.
Consolidation Coal Company v. Secretary of Labor, 1 MSHC 1742 (January 10,
1979).

The company has pointed out that Mr. Morris violated a company rule

when he worked on an energized circuit, that he had received the required
electrical refresher training, and that he was a qualified electrician who
could work without supervision.

I do not find this convincing evidence of no

negligence on the part of the company in the face of other evidence in the
2/ A finding of negligence on the part of the operator is not meant to imply
that miners should be immune from liability under section llO(c) of the Act
for their own negligence.

19811

record.

Miners respond to the general attitude of the company toward safety.

Apparently, the company did not discipline Mr. Morris for his disobedience.
There is no evidence that anyone has ever been disciplined for disobeying
this or any other company safety rule.

The company, on the contrary, argues

that discipline severe enough to enforce compliance is not available (R. Memo
at 12).

Moreover, the company, after pointing out the number of systems

involved, has argued that the regulation at issue cannot require deenergizing
all power leading to the circuit or power equipment in all cases (R. Memo at
15).

\lhere it is necessary to shut down part of a plant in order to work on

a circuit safely, this is exactly what the regulation and common sense
require. I find that the miner could not have been unaware of this attitude
\

on the part of the company.

It is entirely understandable and foreseeable

that an employee would attempt to avoid causing trouble by a dangerous short
cut of the this kind where violation of the law and company rules never
result in discipline.

I find, therefore, that Mr. Morris' actions were not

so aberrational as to relieve the company of responsibility for his gross
negligence or of its own failure to enforce compliance with the safety
standard.
Accordingly, the Secretary's motion for summary decision is GRANTED and
the Respondent's motion to dismiss and motion for summary decision is DENIED.
It is ORDERED that Respondent pay a penalty of $1,500 on or before Tuesday,
September 1, 1981, and that subject to payment the captioned matter be
DISMISSED.

1985

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor,
Federal Office Building, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604
R. Stephen Hansell, Esq., Amax Coal Company, 105 South Meridian Street,
Indianapolis, IN 46225

1986

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

Application for Review
of Discrimination

MARK SEGEDI,
On behalf of:

Docket No. PENN 80-273-D
S. J. EZARIK, et al.,
Complainants

Somerset No. 60 Mine

v.
BETHLEHEM MINES CORPORATION,
Respondent
FINAL ORDER AS TO COSTS AND EXPENSES
On March 31, 1981, a decision was issued in the above-captioned
proceeding which contained an order which stated as follows in paragraph
G:
G. IT IS FURTHER ORDERED that Respondent reimburse
the Complainants identified in Part B of this order for
all costs and expenses, including attorney's fees,
reasonably incurred in connection with this proceeding.
Counsel for the parties are directed to confer and
attempt to agree as to the amount of such costs and
expenses. If they are unable to agree, the Complainants
identified in Part B of this order will, within 60 days
from the date of this decision, file an itemized statement
of costs and expenses. Thereafter the Administr~tive Law
Judge will, after affording the parties an opportunity to
be heard, determine the amount of reimbursable costs and
expenses to be recovered by the Complainants identified
in Part B of this order. For this purpose, I retain
jurisdiction of this proceeding.
On July 10, 1981, a stipulation, signed by the Complainants' and the
Respondent's attorneys, was filed which provides as follows:
In accordance with the order issued by Administrative
Law Judge John F. Cook, dated June 3, 1981, and pursuant
to Section G of Judge Cook's order dated March 31, 1981,
counsel for Complainant and Respondent stipulate that
Respondent has reimbursed the Complainants for all costs
and expenses, including attorney's fees ordered by the
Judge.

1987

Accordingly, IT IS ORDERED that the above quoted action by Respondent
in reimbursing the Complainants for all costs and expenses, including
attorneys fees, constitutes fulfillment of paragraph G of the order and
this order constitutes the final disposition of the issues pertaining to
the assessment of costs and expenses in this case.

··~

Cook

Distribution:
Kenneth J. Yablonski, Esq., Yablonski, King, Costello & Leckie, 500
Washington Trust Building, Washington, PA 15301 (Certified Mail)
Thomas W. Ehrke, Esq., Senior Industrial Relations Attorney-Coal,
Bethlehem Mines Corporation, Room 1871, Martin Tower, Bethlehem, PA 18016
(Certified Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, D.C. 20005 (Certified Mail)

I
I

"

1988

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER.COLORADO 80204

)

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

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-239

)

v.

)

MSHA CASE NO. 05-02820-03011 V

)

C F & I STEEL CORPORATION,

)

MINE: Maxwell

)

Respondent.

)

~~~~~~~~~~~~~~~~~)
DECISION AND ORDER
Appearances:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
This proceeding arose through initiation of an enforcement action
brought pursuant to section 105 of the Federal Mine Safety anp Health Act
of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as' "the 1977
Act" or "the Act"]. The Secretary of Labor, Mine Safety and Health
Administration [hereinafter "the Secretary"], brought this action against
C F & I Steel Corporation [hereinafter "C F & 1 11 ] alleging one violation of
the Act. The Secretary seeks an order assessing a civil monetary penalty
against C F & I for its alleged violation of the Act.

1989

FINDINGS OF FACT
1. C F & I is the operator of an underground coal mine located near
Weston, Colorado, known as the Maxwell Mine.
2.

Products of the Maxwell Mine enter or affect interstate connnerce.

3. On March 29, 1979, a duly authorized representative of the
Secretary conducted an inspection of development Unit No. 2 of the Maxwell
Mine pursuant to section 103(g) of the Act.
4. In the last crosscut of that unit, the MSHA inspector observed a
complete cycle of roof bolting utilizing resin grouted roof bolts. The
inspector observed that the roof bolter never attempted to wait a minimum
of· ten minutes before torque-testing the installed rod as required, by the
mine's roof control plan.!/ Subsequent investigation revealed that
the roof bolting crew was not provided with a torque wrench and that the
roof bolting machine had a broken set of pressure gagues on its right side.
5. Order of Withdrawal No. 387995 ]j was issued to C F & I by the
MSHA inspector for its alleged violation of 30 C.F.R. § 75.203. 1/
Additionally, the order contai~ed findings by the inspector pursuant to
section 104(d)(l) of the Act that the violation was caused by an unwarrantable failure of the operator to comply with a mandatory safety standard.
1/ Paragraph 9 of the roof control plan then in effect at the Maxwell Mine
reads:
"For test purposes, the first resin grouted rod installed in each cycle in
each working place, after a minimum curing time of 10 minutes, shall be
checked with a torque wrench or the bolter after installing the first line
of permanent support and prior to removing any temporary supports. The
torque applied should be 150 foot-pounds. Should the rod turn in the hole,
a second rod shall be tested in the same manner. If this rod also turns,
resin installation shall be discontinued until reasons for failure of the
resin is determined."
2/

The condition or practice cited alleges:

"A torque wrench socket was not provided for the torque wrench for testing
the installed resin grouted rods. The gauges for the torque value on the
Long Airdox Roof Bolter Serial No. 52-1086 were also broken. So means was
not available for testing installed bolts in Unit No. 2."
3/ Roof bolt tests. [STATUTORY PROVISIONS] When installation of roof bolts
is permitted, such roof bolts shall be tested in accordance with the
approved roof control plan.

1990

6. At the time of this inspection, C F & I was relying upon prior
statements made by an MSHA representative specializing· in roof control that
resin grouted roof bolts should not even be torqued because torquing the
bolt increases the possibility that the bond between the roof bolt ~nd the
consolidated epoxy resin may be broken.
7. The requirement regarding the torque-testing of resin grouted roof
bolts was subsequently deleted from the mine's roof control plan.
8. Payment of the proposed penalty will not impair the ability of
C F & I to continue in business.
ISSUES

1. Did Respondent fail to test the roof bolts in Unit No. 2 in
accordance with the mine's approved roof control plan?
2. If so, was the violation caused by an unwarrantable failure of the
Respondent to comply with the mandatory saf~ty standard?
DISCUSSION .
The condition or practice cited was in fact a technical violation of
the mandatory safety standard contained in 30 C.F.R. § 75.203. The Maxwell
Mine roof control plan does permit the installation of roof bolts, and as
such, they were to be tested in accordance with the approved plan. That
plan called for test torquing with a torque wrench or roof bolter "after a
minimum curing time of 10 minutes." The facts as found indicate this was
not done.
CF & I raises the defense that they were excused from the plan's
torquing requirements by their justifiable reliance on the representations
of MSHA officials that torquing resin grouted roof bolts was
counterproductive and, indeed, dangerous. From a technical standpoint,
this may be true. However, as a matter of law, the requirements of the
standard are enforceable. In Secretary of Labor, Mine Safety and Health
Administration (MSHA), v. King Knob Coal Company, Inc., 3 FMSHRC 1417
(1981), the Review Commission held that a safety standard controls over an
interpretation of that standard set forth in MSHA's interim inspector's
manual. I find the situation presented here is analogous to~the cited case
in that the inspector's representations were merely informal and nonbinding. Relying on the Connnission's reasoning, I find that the requirements of the standard are binding and reject the defense.

1991

C F & I raises an additional defense that they were excused from the
plan's torquing requirements because compliance with the mandates of the
standard posed·a "greater hazard" to the miners than did noncompliance. As
authority, C F & I cites Olga Coal Company, v. Secretary of Labor, Mine
Safety and Health Administration (MSHA), and United Mine Workers of
America, 1 FMSHRC 1580 (1979), and a line of cases interpreting the narrow
"greater hazard" defense .recognized under the Occupatio~al Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. However, under this Act, the
appropriate channel to follow .to avoid such a conflict would have been to
petition the Secretary for a modification of application of the standard
pursuant to section lOl(c), 30 U.S.C. § 8ll(c). In Secretary of Labor,
Mine Safety and Health Administration (MSHA), v. Penn Allegh Coal Company,
Inc., 3 FMSHRC 1392 (1981), the Review Commission held that the defense of
diminuation of safety is improperly raised in an enforcement proceeding and
should properly be pursued in the context of the special standard
modification procedures provided for in the Act. C F & I did not avail
itself of that avenue of potential relief and to consider the defense in
this forum would be inappropriate. Consequently, the defense is rejected
and a violation of the Act is found to have occurred.
On the issue of whether the violation was caused by an unwarrantable
failure on the part of C F & I to comply with the mandatory safety
standard, I find for the Respondent. The evidence establishes that a
significant degree of confusion ensued from the statements of the MSHA
inspector regarding the effects of torquing resin grouted roof bolts once
they had set. I cone lude that it was not unreasonable for C F & I to be
somewhat confused by these represent at ions. On this basis, the finding of
unwarrantable failure to comply should be vacated.
In determining an appropriate civil penalty for the violation., I take
note of the fact that C F & I's roof bolters did utilize certain procedures
in setting the roof bolts which allowed them to determine the integrity of
the epoxy resin during the bolting cycle. By gauging the resistance of the
bolt in relation to the constant force e:iterted by t:'he drill, the installer
was able to determine whether the resin had set. This procedure provided
essentially equivalent protection to that insured by the plan. The fact
that the torquing requirement was eventually dropped from the Maxwell
Mine's roof control plan indicates the reduced degree of negligence and
gravity associated with the violation.
CONCLUSIONS OF LAW
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and subject matter of this proceeding.
2. Petitioner proved that Respondent violated the Act as alleged in
Order of Withdrawal No. 387995, but failed to meet the burden of proof that
the violation of the Act was occasioned by an unwarranted failure of the
Respondent to comply with its provisions.

1992

3. Order of Withdrawal No. 387995 should therefore be affirmed and
the finding of unwarrantable failure vacated.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it
1s ORDERED that Order of Withdrawal No. 387995 is AFFIRMED and that the
finding of unwarrantable failure is VACATED. It is FURTHER ORDERED that
Respondent shall pay a civil penalty in the amount of $100.00 for its
violation of the Act within 30 days of the date of this Decision.

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290

1993

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

FRANKLIN D. KAESTNER,
Complainant,

24 1911

))

-

)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE

)

)

v.

DOCKET NO. WEST 81-24-D

)

COLORADO WESTMORELAND INC.,

)

MSHA CASE NO. DENV CD 80-28

)

Respondent.

)

MINE: Orchard Valley

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

DECISION
Appearances:
Franklin D. Kaestner
P.O. Box 805
Paonia, Colorado 81428
Pro Se
Rosemary M. Collyer, Esq.
Sherman & Howard
2900 First of Denver Plaza
633 Seventeenth Street
Denver, Colorado 80202
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
On October 20, 1980, the complainant, pro se, filed a complaint of
discrimination against the respondent based--OUsection lOS(c) of the
Federal Mine Safety and Health Act of 1977 [hereinafter "the Act"]. The
complainant alleged that his employment with the respondent was terminated
on July 1, 1980, since he had developed bronchitis and lung problems after
working in respondent's underground coal mine. Complainant alleged that he
"talked to the management at the mine about a less dusty job,"] but was told
that management could not "create a job for me away from the dust."
Complainant alleges that when he was hired by respondent and given a
complete physical examination he was "given a clean bill of health," but
that he [later] received a letter from the Department of Health, Education
and Welfare statingthat "traces" of pneumoconiosis were found in his lungs.
Complainant also alleges that the respondent had other jobs he could
perform on the outside of the mine or in the shops.

1994

Respondent denies that it in any way discharged, discriminated or
interferred with the rights of the complainant and alleges that complainant
was terminated because he refused to work underground and that there was no
position available that would have removed complainant totally from underground work.
At the completion of complainant's case, respondent moved to dismiss
the complaint on the basis that complainant had not shown that he had
engaged in any protected activities whatsoever, "much less adverse actions
taken as a result of that protective activity." Ruling on the motion was
reserved until respondent's evidence was presented.
ISSUE

Whether or not complainant's complaint of discrimination should be
dismissed for failure of the complainant to establish a prima facie case.
More specifically, the question is whether or not the complainant presented
evidence which standing alone and unrebutted shows that he is entitled to
relief.
FINDINGS OF FACT

Based on evidence introduced during complainant's case, I make the
following findings of fact:
1. The complainant was hired by respondent to work at its underground
coal mine as a general mine worker, conunencing April 10, 1978.
2. Complainant resigned his employment with the respondent July 20,
1979, and was rehired August 20, 1979, with subsequent duties as a section
mechanic.
3. Commencing approximately October 1979, complainant began to have
severe coughing attacks underground and had difficulty breathing.
Complainant attributed the health problems to a lung irritation due to
dust.
4. A doctor consulted by the complainant reconunended that complainant
seek a less dusty job because his current job would create lung problems in
the future.
5. On June 27, 1980, and just prior to going underground to work his
shift, complainant told his supervisor that he did not believe he could
take the dust any longer.
6. On July 1, 1980, the complainant was asked by the respondent to
resign because respondent could not create a less dusty job for him. When
complainant refused to resign, he was terminated.
7. Approximately a week or ten days after complainant was terminated,
respondent attempted to obtain employment for the complainant with another
mining company, but complainant would not take the employment because he
"thought if one coal mine was going to kill me in ten years, ••• :mother
one wi 11 too."

1995

8. Complainant had been notified in a letter from the Department of
Health, Education and Welfare dated February 9, 1979, that his chest x-ray
showed some evidence of pneunociosis, although breathing tests were normal.
This letter was not given by complainant to respondent until July 30, 1980,
approximately 30 days after complainant's employment had been terminated.
DISCUSSION
The activity which is protected is set forth in Section lOS(c)(l) of
the Act. It reads in part as follows:
No person shall discharge .•. any miner •.. because
such miner •.• has filed or made a complaint under .•. this Act,
including .•. notifying the operator •.• of an alleged
danger or safety or health violation •.• , or because such
miner ••. is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101
or because such miner ••. has ••. caused to be instituted •••
any proceeding under
this Act .•. or because of the exercise by such miner ..• of any statutory right afforded by
this Act.
In order for the complainant to establish a prima facie case showing a
violation of section lOS(c)( 1), it is necessary for him to introduce
evidence that (1) he engaged in a protected activity, and (2) that his
termination was motivated in any part by the protected activity. Secretary
of Labor on behalf of David Pasula v. Consolidation Coal Company, 2 FMSHRC
2786 (1980).
The complainant testified that he thought the Act was violated because
of his termination "and I wasn't even given the opportunity to continue
working underground. It wasn't safety violations. I thought my working
rights were violated by terminating me because of the health conditions,
and without even being allowed to continue working underground if I had
wanted to."
The complainant introduced no evidence of making any complaint to the
respondent in regard to an alleged danger or safety or health violation.
Indeed, there was no evidence of any safety or health violation in the
mine. There was no evidence that the complainant was entitled to any
option of transferring from his position to another position in any area of
the mine pursuant to applicable provisions of the Act.
During the course of his employment, the complainant had 1 worked a
total of approximately two years and one month underground. Complainant
believed that dust encountered in the mine contributed to his bronchitis
and caused coughing spells. Under these circumstances he wanted a less
dusty job and informed his supervisor that he did not think he could take
it (working underground) any longer. The respondent terminated the
complainant because respondent had no other less dusty jobs in the mine
and, in any event, complainant was not entitled to the option of
transferring pursuant to any rights accrued under the Act.

1996

Complaina_nt has, thus, failed to show that he engaged in any protected
activity and has ~herefore failed to establish one of the essential
ingredients of the prima facie case.
ORDER
Respondent's motion, heretofore reserved, is granted and the
complaint is dismissed.

.·
1Administrative 'L'aw
Judge

v

Distribution:
Rosemary M Collyer, Esq.
Sherman & Howard
2900 First of Denver Plaza
633 Seventeenth Street
Denver, Colorado 80202
Franklin D. Kaestner
P.O. Box 805
Paonia, Colorado 81428

1997

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

MATHIES COAL COMPANY,
Contestant

22041

Notice of Contest

v.

Docket No. PENN 80-260-R
Citation No. 839028; 5/16/80

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

Mathies Mine

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

Civil Penalty Proceeding
Docket No. PENN 81-35
A.O. No. 36-00963-03120F
Mathies Mine

MATHIES COAL COI:1PANY,
Respondent
DECISION
Appearances:

Barbara Krause Kaufmann, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for MSHA;
Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for
Mathies Coal Company.

Before:

Judge Merlin

This consolidated proceeding is a notice of contest filed by the
operator challenging a section 104(a) citation and a petition for the
assessment of a civil penalty based upon the alleged violation set forth
in the citation.
A hearing was held on July 22, 1981 at which the parties represented
by counsel appeared and pre'sented documentary and testimentary evidence.
At the hearing the parties agreed to the following stipulations
(Tr. 5-6):
(1)

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

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

I have jurisdictron of these cases.

1998

(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.
(6) Imposition of a penalty will not affect the operator's ability
to continue in business.
(7)

The alleged violation was abated in good faith.

(8)

The history of previous violations is average.

(9)

The operator's size is large.

(10) The witnesses who testify are accepted generally as experts in
coal mine health and safety.
At the conclusion of the taking of evidence counsel waived the
filing of written briefs and agreed instead to make oral argument
(Tr. 152). I advised the parties that I would issue a decision after
receipt of the administrative transcript (Tr. 152).
Discussion and Analysis of the Evidence
Findings and Conclusions
This consolidated proceeding arises from an alleged violation of
30 C.F.R. 75.1722(a) which provides as follows:
Gears, sprockets; chains; drive, head, tail, and take-up
pulleys; flywheels; 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 condition or practice which is set forth in the contested citation
and which is the basis for the penalty petition is as follows:
It was revealed during a fatal accident investigation that
the automatic elevator and associated parts at the Gamble Shaft
Portal was not guarded adequately to keep persons from coming in
contact with the elevator as it was moving in the shaft along the
stairways at the first and second landings.
The testimony at the hearing set forth the physical circumstances
at length. Briefly they are as follows: At the Gamble Shaft Portal an
elevator transports men between the surface and the underground. The
elevator has a device called a retiring cam which is attached to and
protrudes out from one side of the elevator. The retiring cam does not
move independently of the elevator but rather moves up and down with it.
When the elevator reaches the top or bottom, the retiring cam hits a

1999

switch on the side of the shaft; this contact causes the elevator doors
to open. Next to the elevator shaft is a stairwell also going from the
surface to the underground. The stairwell is 273 feet deep with 27 landings
and eleven steps between each landing. At the top landing there is a
door to the outside at the surface and at the bottom landing there is a
door to the bottom of the mine. There are no,other doors out of the
stairwell. From approximately 24" }/ above the second (i.e. next to
the top) landing down to the bottom of the mine corrugated metal separates
the elevator shaft from the stairwell. Where the corrugated metal ends
above the secqnd landing, there is an "I" beam separating the elevator
shaft from the stairwell (MSHA Ex. 2). When the elevator passes by
there is a space of 9 inches between the "I" beam and the elevator. In
addition, on one side of the elevator shaft beginning at the level of
the I beam and extending upwards there is a metal grating. There is a
horizontal space of 26" between the grating and the elevator guide and
there is a perpendicular space of 54" between the I beam and the top
landing (MSHA Exh. 2). It is this area, 26" x 54", which the Solicitor
contends was unprotected and required guarding.
The grating is significant for another reason. It is only about 21/2 feet below ground level so that an individual walking along the "I"
beam to the outer edge of the elevator shaft could push out the grating,
step out and reach the surface. This is just what the decedent was
doing and how he was killed. The undisputed evidence shows that the
decedent was trying to sneak out of work early. The decedent had climbed
the stairs in the stairwell to the top, opened the door at the top
landing to exit from the stairwell, and stepped qutside onto the surface.
However, he then saw his foreman. In an attempt not to be seen by the
foreman, the decedent went back through the door onto the first landing
and then went down the steps until he reached the "I" beam which as
already noted separates the elevator shaft from the stairwell. He
stepped onto the "I" beam going towards the grating with the apparent
intent to push the grating out and climb up the 2-1/2 feet to the surface
without being seen. Unfortunately, when the decedent was on the "I" beam
the elevator began to descend and the decendents' tool pouch or belt was
caught by the elevator's retiring earn. The decedent fell down the shaft
and was killed.
The first and principal issue to be resolved is the existence of a
violation. 30 C.F.R. 75.1722(a) covers certain specified machine
components and "similar exposed moving machine parts." There are some
differences over the measurements involved but there is agreement between
the parties that the elevator was exposed for most of the area in question
above the "I" beam. The operator's principal defense is that the elevator
is not a machine "part" but rather an entire machine and therefore, not

l./

According to the operator the corrugated metal extended 32" above
the second landing, but as appears infra, this makes no difference in
the result.

2000

within the standard. I cannot accept this argument because of testimony
given by the operator's own witness, a metallurgical and environmental
engineer whose job it is to analyze failures of machines and machine
components. The engineer made clear that the men were in fact transported
by the elevator cage_ and that the entire machine in question was composed
not only of the cage but also of pulleys and motors which supplied power
to the cage enabling the cage to move. He stated the pulleys were above
the cage and that the motor also was in another location. It is apparent,
therefore, that what was cited b.y the inspector was the elev8:tor cage.
I find this is sufficiently clear from the citation and was known to the
operator, who was aware of all the circumstances. I conclude that the
cage together with its retiring cam constituted moving parts of a
machine made up of the cage, retiring cam and other units described by
the engineer.
I have not overlooked the engineer's subsequent testimony that the
machine parts specifically identified in 75.1722(a) transmit power from
one source to another whereas he stated this is not true of the elevator
cage which transports men. I received the indelible impression that
this purported distinction was offered in recognition by the witness of
the fact that he had conclusively identified the cage as a machine
component rather than a total machine. Even assuming the engineer's
differentiation based upon transferring energy was well-taken and overlooking the fact that the matter was hardly touched upon by either
counsel at the hearing, I reject this as too fine a distinction for
present purposes. The Act is to be liberally construed. The operator
has offered no basis in the law or legislative history for me to so
constrict the terms in question. In the absence of anything to the
contrary and in light of the Act's avowed purposes I believe "similar"
refers to the exposure to moving machine parts. Accordingly, I conclude
that the cage with the retiring cam itself· falls within the standard.
Insofar as the cam is concerned, it moves and is exposed. Nothing in
the standard indicates the moving part has to move independently of
everything else.
The next issue is whether the exposed elevator cage and its retiring
cam "may be contacted" by persons. The principal definition of "may" is
"to be physically capable." Webster's New World Dictionary (1972); Funk
& Wagnalls Standard College Dictionary (1966); Random House American
College Dictionary (1970). The fatality in this case occurred because
of the wantonly reckless and irresponsible behavior of the decedent in
attempting to sneak out of work early without his supervisor's knowledge.
However, the record makes clear that the entire stairwell was required
to be examined weekly. Moreover, it could be used to enter and leave
the mine if, for example, the elevator was not working. As already
noted, there is some difference between the government and the operator
over the exact dimensions of the exposed space but this is not determinative because regardless of whose measurements are accepted, it is clear
that an individual while performing his regular routine work duties in a
prudent manner might lose his fboting and trip and fall on the second

2001

landing thereby putting part of his body into the unguarded space and
coming into contact with the elevator and its retiring cam if the
elevator were descending at that time. Also, the arm of an individual
descending the stairs from the top to the second landing could come in
contact with a descending elevator cage. Admittedly, these events would
have to occur simultaneously for the hazard to exist. But the history
of mine disasters has been the history of unfortunate coincidences of
unlikely factors. I cannot incorporate into this mandatory standard
some sort of requirement for an indeterminate degree of probability.
Such a requirement woul_d be wholly subjective and open-ended and if
pushed to its logical extreme would vitiate the standard itself. Moreover, I have no authority to read into the standard something which is
not there.
In light of the foregoing I conclude a violation existed.
Gravity must now be considered. A fatality occurred. However this
fatality cannot be divorced from the wantonly reckless and irresponsible
actions of the decedent. The Solicitor expressly admitted that the
operator should not be held accountable for the decedent's behavior. I
believe the proper way to assess gravity is to determine it in terms of
an individual discharging his work-related duties in a reasonably
prudent fashion. As already noted, such an individual could trip and
fall coming into contact with the descending elevator. A serious injury
could result. However, as has also been discussed, the occurrence of
such an injury depends upon a coming together of many factors; the likelihood of which is remote. Therefore, this mitigates gravity. I conclude
the violation was serious.
Many of the foregoing circumstances, of course, affect negligence.
I have previously held that a miner's aberrant behavior which could not
be foreseen or prevented by the operator and which harmed only himself
cannot be charged against the operator. Nacco Mining Compan_y, Dec. 17,
1976 (Docket No'IJlllS1'6x99-P). This decision was upheld by the Commission
in Secretary of Labor v. Nacco Mining Company, 4 FMSHRC 848 dated
April 29, 1981. See also my decision in Marshfield Sand and Gravel,
June 10, 1980 (YORK 79-68-M). The aberrational conduct of the decedent
in this case went far beyond that considered in the cited cases. The
operator is not to be held responsible for what the decedent did here.
Nevertheless I find the operator was guilty of ordinary negligence in
not guarding the area in question. The fact that this type of space had
not been cited previously for a guarding violation has been taken into
account but is not a basis for a finding of no negligence.
As set forth above, the remaining factors affecting the amount of
the penalty have been stipulated to by the parties.
After taking all the relevant factors into account a penalty of
$750 is assessed.

2002

ORDER
The operator is ORDERED to pay $750 within 30 days of the date of
this decision.
DISMISSED.

The operator's Notice of

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Jerry Palmer, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

2003

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

LOCAL UNION 1374, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA
(UMWA),
Complainant

22041

AUS 27 1981

Complaint for Compensation
Docket No. VA 80-167-C
Order No. 700382
June 18, 1980

v.
Beatrice Mine
BEATRICE POCAHONTAS COMPANY,
Respondent
SUMMARY DECISION
Counsel for the complainant in the above-entitled proceeding filed on
April 17, 1981, a motion for summary decision pursuant to 29 C.F.R. § 2700.64.
The motion was accompanied by a joint stipulation of facts signed by counsel
for both complainant and respondent. Since no factual issues are in dispute,
I find that the motion for summary decision should be granted.
The issues to be decided in this case will be based on the parties'
stipulation of facts set forth below:
1.
The Beatrice Mine is owned and operated by the Beatrice
Pocahontas Company.
2.
The Beatrice Mine is subject to the jurisdiction of the
Federal Hine Safety and Health Act of 1977 (the "Act").
3.
Representatives of the International Union, United Hine
Workers of America ("UMWA"), are authorized representatives for the
members of Local Union 1374, employed by the Beatrice Mine for purposes
of this proceeding.
4.
The administrative law judge has jurisdiction over these
proceedings.
5.
At times relevant herein Beatrice Pocahontas Company, at its
Beatrice Mine, and Local Union 1374, UMWA, were bound by the terms of
the National Bituminous Coal Wage Agreement of 1978 (the "Contract").
6.
On June 18, 1980, at 6:15 p.m., Ronald Pennington, a duly
authorized 11ine Safety and Health Administration ("MSHA") inspector,
issued Withdrawal Order No. 700382 to Beatrice Pocahontas Company at
its Beatrice Mine pursuant to Section 107 (a) of the Act.
7.
Order No. 700382 was not terminated until 10:30 a.rn. on
July 10, 1980.
8.
The aforesaid order was issued due to the accumulation of
explosive concentrations of methane gas in the bleeder entries of the
No. 3 longwall area of the Beatrice Mine.

2004

9.
No violation of any mandatory health and safety standard
promulgated under the Act was alleged in the order.
10.
The miners working on the 4:01-p.m.-to-12:00-a.m. shift
during which the order was issued were paid for the balance of their
shift in accordance with section 111 of the Act.
11.

T~e

miners normally scheduled to work the 12:01-a.m.-toshift on June 19, 1980, reported for work. Respondent
requested that they remain on the surface until it was determined
whether the order would be terminated. After approximately 1-1/2 hours,
all underground miners were sent home.
8~00-a.m.

12.

These miners received 4 hours of pay at their regular rates.

13.
If normal mining operations had been conducted at the
Beatrice Mine on June 19, 1980, between 12:01 a.m. and 8:00 a.m.,
each underground employee normally scheduled to work on that shift
would have been offered the opportunity to work his/her full 8-hour
shift.
14.
Union Exhibit 2 (a copy of which is attached) is an accurate
list containing (a) the names of each underground miner who reported
to work on June 19, 1980, at 12:01 a.m., (b) his/her rate of pay as of
June 19, 1980; and (c) the amount of compensation claimed.
Issue
The issue raised by the complaint in this case, according to U~fi~A's
brief (p. 1), is as follows:
Are miners idled for six and one-half hours by a Withdrawal Order
issued on the preceding shift entitled to receive 4-hours compensation
under Section 111 of the Act where they received 4-hours reporting pay
in accordance with their collective bargaining agreement?
In its brief (p. 2), respondent claims that the issue raised by the
complaint is as follows:
Under the facts stipulated, are the miners who reported to work on
the 12:01 a.m. to 8:00 a.m. shift at the Beatrice Mine on June 19, 1980,
entitled to compensation, under § 111 of the Act, in addition to the
4-hours' compensation which they have been paid?
On page 1 of its brief, respondent states that the parties agreed that
the judge should determine the wording of the issue raised by the complaint.
I find for the reasons hereinafter given, that the issue raised by the complaint is as follows:
Are miners idled by a withdrawal order issued on the preceding shift
entitled to receive 4 hours of compensation under section 111 of the Act if
they also have received, in accordance with Article IX(c) of their collective
bargaining agreement, 4 hours of pay for reporting to work?

2005

UMWA's Argument
UMWA's initial brief contends (p. 2) that resolution of the issue in
this proceeding requires an interpretation 1/ of the relationship between
the statutory provisions of section 111 of the Act and Article IX(c) of the
1978 Bituminous Coal Wage Agreement. The pertinent part of section 111
provides as follows:
If a coal or other mine or area of such mine is closed by an
order issued under section 103, section 104, or section 107, all
miners working during the shift when such order was issued who are
idled by such order shall be entitled, regardless of the result of
any review of such order, to full compensation by the operator at
their regular rates of pay for the period they are idled, but for
not more than the balance of such shift. If such order is not
terminated prior to the next working shift, all miners on that shift
who are idled by such order shall be entitled to full compensation
by the operator at their regular rates of pay for the period they
are idled, but for not more than four hours of such shift. """'"
Article IX(c) of the wage agreement provides as follows:
Unless notified not to report, when an Employee reports for
work at his usual starting time, he shall be entitled to four (4) hours'
pay whether or not the operation works the full four hours, but after
the first four (4) hours, the Employee shall be paid for every hour
thereafter by the hour, for each hour's work or fractional part thereof.
If, for any reason, the regular routine work cannot be furnished, the
Employer may assign the Employee to other than the regular work. >': >': >':
As indicated in Stipulation No. 6, Order No. 700382 was issued at 6:15 p.m.
on June 18, 1980. According to Stipulation No. 10, the miners working on the
4 p.m.-to-midnight shift, when the order was issued, were paid for the remainder of the shift. Therefore, the first sentence in section 111 of the Act
was satisfied. As indicated in Stipulation No. 11, the miners on the "next
working shift" (midnight-to-8-a.m.) after issuance of Order No. 700382 reported
for work. As also shown by Stipulation No. 11, they were asked to remain on
the surface for 1-1/2 hours until it was determined whether the order would
be terminated. After it had been determined that the order would not be terminated on their shift, the miners on the midnight-to-8-a.m. shift were sent home.
According to Stipulation No. 12, the miners on the midnight-to-8-a.m. shift
were paid for 4 hours at their regular rates of pay. If Order No. 700382 had
not still been in effect, the miners on the midnight-to-8:00-a.m. shift would
have been given the opportunity to work for a full 8-hour shift (Stipulation
No. 13).
UMWA's brief (pp. 2-3) refers to the second sentence in section 111 and
argues that interpretation of payment for miners on the "next working shift"
must be made in light of the fact that the "period they are idled" pertains
1/
In its reply brief (p. 2) UMWA changed its position as to the need to
interpret the.Wage Agreement because no dispute exists as to the meaning of
Article IX(c) of the Agreement.

2006

to a full 8-hour shift. UHWA contends that the awarding of 4 hours of compensation under the second sentence of section 111 is not confined to the
initial 4 hours of a shift, 11 >'< ;, >'< but becomes effective when the miner no
longer receives compensation from his/her employer" (Br., p. 3). UM\·;A then
cites the Commission's decision in Youngstown Mines Corp., 1 FMSHRC 990 (1979),
in which the Commission held that miners "on the next shift" after issuance
of a withdrawal 6rder are entitled to compensation for the remaining 4 hours
of their shift if they are used and paid for abatement work during the first
4 hours of the shift. The primary reason given for the Commission's holding
in that case was that the miners would have worked and would have been paid
for the last 4 hours of the shift if the withdrawal order had not still been
in effect so as to idle them for the remaining 4 hours of their shift. UMWA
also cites Peabody Coal Co., 1 FMSHRC 1785 (1979), in which the Commission
held that miners were entitled to receive 3-1/2 hours of pay for the remainder
of their shift even though Peabody had paid them for work performed during
the first 4-1/2 hours of the "next shift" after issuance of a withdrawal order.
UM:WA's brief (p. 4) states that respondent objects to UHh'A's effort to
use the Youngstown and Peabody cases as precedents for U~u~A's position in this
case. Respondent, it is said, seeks to distinguish the Commission's holdings
in those cases by pointing out that in each of those cases, the miners were
paid for the first half of their shifts for work actually performed, whereas
in this proceeding, the miners were kept at the mine site at respondent's
request for only 1-1/2 hours.
Therefore, in this proceeding, U~MA says that
respondent wants to restrict the Youngstown and Peabody holdings as being
applicable only to the extent that they would require respondent to pay the
miners for the first 1-1/2 hours while a determination was being made as to
whether the order would be terminated on their shift. mmA says that respondent argues, nevertheless, that since the miners were paid for 4 hours, they
received the full 4 hours of compensation which they are required to be paid
under the second sentence of section 111.
UMWA's brief claims that respondent's argument is defective because it
misconstrues Article IX(c) of the Wage Agreement which clearly provides that
miners who report for work are entitled to 4 hours of pay regardless of how
much work is actually performed.
Therefore, UHWA argues (Br., p. 5) that
it is irrelevant that the miners received 4 hours of pay even though they
were kept at the mine for only 1-1/2 hours before they were sent home. UNWA
further argues that under Article III(b)(2) of the Wage Agreement, neither
party to the Agreement waived any rights relating to the Coal Act. U}fl~A
claims that section 111 of the Act must be interpreted so as to give full
effect to the parties' intention to preserve both their statutory and contractural rights. UMWA claims that the aforesaid purpose can be achieved by interpreting the second sentence of section 111 so as to treat the first four hours
of the "next working shift" as non-idle time. U.MWA concludes the foregoing
portion of its argument by claiming that there is no basis for distinguishing
the Commission's holdings in the Youngstown and Peabody cases from the facts
in this case because the important point in this proceeding and in those
cases is that the miners on the "next working shift" were idled for the last
4 hours of the shift because of the issuance of a withdrawal order.

2007

U}nvA also argues (Br., p. 6) that respondent's interpretation of
section 111 as providing for no pay over and above the 4 hours which the
miners have already received ~< >'< 1< disregards the well-established principle
recognizing the separate and independent nature of statutory and contractual
rights." UMWA supports that argument by referring to the Commission's
decision in the Youngstown case, 1 F.MSHRC at 993, in which the Commission
rejected an argument to the effect that provisions in the Wage Agreement
should be allowed. to control an interpretation of section 110 (a) of the
1969 Coal Act. UMWA also cites a statement by the court in Phillips v. IBMA,
500 F.2d 772, 777 (D.C.Cir. 1974) that 11 >'< ~<>'<if there is no right of action
under the Mine Safety Act independent of the usual labor dispute settlement
mechanisms, there is no right of action under the Mine Safety Act at· all."
11

Respondent's Argument
As indicated above under the heading "Issue", respondent does not agree
with UMWA's statement of the issue in this proceeding.
Respondent claims that
no reference whatsoever should be made to lTHWA' s contention that the 4 hours
of compensation which the miners on the midnight-to-8-a.m. shift were paid was
awarded to them under the "reportin~ pay" provisions in Article IX(c) of the
Wage Agreement.
Respondent argues that it is outside the scope of a disagreement as to the meaning of the second sentence in section 111 of the Act for
the Commission to consider whether the 4 hours of compensation may have been
awarded to the miners because they happened to report for work so as to trigger
a contractual provision which requires respondent to pay the miners for 4 hours
if they are allowed to report to work.
Respondent enlarges upon the argument above on page 2 of its brief by
emphasizing that this is a case which has arisen solely under the provisions
of section 111. Respondent argues that if any compensation in addition to that
which has already been paid is found to be due, that determination must be made
under the provisions of the second sentence of section 111 which clearly provides that the miners on the "next working shift" "who are idled by such order
shall be entitled to full compensation by the operator at their regular rates
of pay for the period they are idled, but for not more than four hours of such
shift" [Emphasis supplied by respondent.].
Respondent states that it is
abundantly clear that the requirements of the secdnd sentence of section 111
have been satisfied in this instance.
Respondent points out that the order
in question was issued on the preceding shift and was not terminated at the
beginning of the midnight-to-8-a.m. shift, or "next working shift" (Stipulation
~o. 7).
Respondent further notes that the miners who reported for work on the
midnight shift were undoubtedly idled by the order and were entitled to full
compensation at their regular rates of pay for/the period idled, but for not
more than 4 hours of that shift.
Respondent says that the miners have in
fact been paid at their regular rates of pay for 4 hours (Stipulation No. 12).
Therefore, respondent concludes that no further compensation can be found to
be due under section 111.
Respondent's brief (p. 3) recognizes that U}fi~A claims that the facts in
this proceeding require an interpretation of the relationship between the
contractual provisions of the Wage Agreement and the statutory provisions of

2008

section 111. Respondent also acknowledges ill-'TI\TA's argument that respondent's
position in this case misconstrues the "reporting-pay provisions" of the Wage
Agreement.
Respondent's answer to UMWA's arguments about the Wage Agreement
is that the Commission has no jurisdiction over the Wage Agreement nor authority to mediate disputes arising under the Wage Agreement.
Respondent states (Br., p. 4) that even if one puts aside its jurisdictional argument above, there are defects in Ul'f\\TA' s interpretation of
section 111. For example, respondent takes exception to UMHA's contention
that the Commission can find that additional compensation is due under the
second sentence by considering the 4 hours of "reporting pay" awarded the
miners under the Wage Agreement as "non-idle time".
Respondent argues that
the word "idled", as used in section 111, must be considered to have the
general meaning given to that word, namely, "not occupied or employed".
Respondent says that if an individual is working, then he is working; if he is
not working, then he is idled.
Respondent concludes the foregoing argument
by noting that there is nothing in the Wage Agreement which can change the
meaning of a miner's "working/idled status" under section 111.
Finally, respondent's brief (pp. 4-5) contends that the Peabody and
Youngstown cases, supra, relied on by UMWA, can readily be distinguished from
the facts in this proceeding.
Respondent points out that in each of those
cases the miners on the "next working shift" were paid for working during
the first half of the shift and that the Commission simply held that they
were idled by the order during the second part of the shift and were entitled
to receive up to 4 hours of compensation for the remaining part of the shift
during which they were idled by the order. Respondent, therefore, concludes
that the Youngstown and Peabody cases do not turn on the question of money
received, but rather depend on ">':
>': the logical distinction between work
time versus idle time upon which the Youngstown Mines and Peabody cases were
decided" (Br., p. 5).

*

UMWA's Reply Brief
UMWA 's reply brief (pp. 1-2) cites the Commission's recent decision in
Eastern Associated Coal Corp., 3 FMSHRC 1175 (1981), as grounds for rejecting
respondent's claim that the Commission, in interpreting section 111, is precluded from recognizing provisions regarding "reporting pay" contained in the
Wage Agreement. UMWA's brief (pp. 1-2) summarizes the holding in the Eastern
Associated case as follows:

,., * * In Eastern Associated, the UMWA requested compensation under
Section 111 of the Federal Mine Safety and Health Act ("the Act")
following the issuance of a withdrawal order pursuant to Section
103(k) of the Act. The order was issued a few hours after the
miners had left the mine in accordance with Article XXII(k) of the
National Bituminous Coal Wage Agreement of 1978 ("the Contract").
This clause provided for the withdrawal without pay of miners from
the mine for a 24-hour memorial period following a fatality.

2009

The Commission declined to award the compensation requested,
reasoning that there was no causal connection between the idling of
the miners and the withdrawal order. This result did not extinguish
or supplant any contractual rights to compensation, since none existed
under Article XXII(k) of the collective bargaining agreement. The
Com.~ission stated that in some cases it was necessary to examine contractual pay rights in order to delineate the statutory pay rights
granted under Section 111.
Following the summary set forth above, U}TivA's brief relies upon the
following portion of the Commission's decision in the Eastern Associated case
(3 FHSHRC at 1179):
We cannot agree with the Union's contention that denial of
section 111 compensation would "supplant [the 1977 Hine Act] with
a contract provision." Br. 3. It is true that we do not decide
cases in a manner which permits parties' private agreements to overcome mandatory safety requirements or miners' protected rights; nor
do we unnecessarily thrust ourselves into resolution of labor or
collective bargaining disputes. See Youngstown Hines, supra,
1 FHSHRC at 993-995. However, section 111 requires us to determine
whether there is a pre-existing private entitlement to pay. To
make that determination, we are occasionally obliged to examine the
parties' collective bargaining agreement which fixes pay rights.
In addition, as here, we must sometimes look to the agreement to
understand the reasons for a private withdrawal. In the present
case, there is no need for contract interpretation because the
parties are agreed that the miners withdrew pursuant to the memorial
provision and have stipulated that under that provision the miners
were not entitled to pay from Eastern Associated during the memorial
period. Similarly, the Union's reliance (Br. 2-3 & nn. 2 & 3) on
certain recitations in the contract that neither party waives its
1977 Mine Act "rights" would incorrectly transform section 111 into
a statutory indemnity against absence, loss, or surrender of private
pay entitlements. While the Union gave up a private claim to pay,
it has not waived any statutory entitlement. [Commission's emphasis.]
U}MA's reply brief (pp. 2-3) contends that if the Commission's holding
in the Eastern Associated case is applied to the facts in this proceeding,
it will be found that no contractual interpretation is necessary in this
case either because the parties have stipulated that the miners received
4 hours of pay for 1-1/2 hours of work (Stipulation Nos. 11 & 12). UffivA says
that this payment was not the result of a mistake or any generosity on the
part of respondent, but was rather required by the "reporting-pay provisions"
of the Wage Agreement. UMWA says there is no dispute about the interpretation
of the Wage Agreement and that there is no unnecessary intrusion into the
collective bargaining process by a determination of the relationship between
the reporting-pay provisions and section 111 of the Act.
UMWA's reply brief (p. 3) argues that there is a direct causal connection
between the withdrawal order issued in this case and the failure of the miners
to receive 4 hours of pay for the final 4 hours of the "next working shift".

2010

UMWA contends, finally, that since there was a preexisting private entitlement for the final 4 hours of the shift, the miners are entitled under the
second sentence of section 111 to receive compensation for those 4 hours
of idlement resulting from issuance of the order.
Consideration of Parties' Arguments
In the portion of my decision entitled "Issue", supra, I stated that
I would explain why I had largely adopted U}fivA's instead of respondent's,
statement of the issue. I believe that I am obligated under the Commission's
decision in the Eastern Associated case, supra, to give recognition to the
reason that the miners on the "next working shift" received compensation
for 4 hours "at their regular rates of pay". In the portion of the Commission's decision in that case quoted above, the Commission stated that it
believed that ">': >': ;': section 111 requires us to determine whether there is
a preexisting private entitlement to pay" [Commission's emphasis]. In that
case, the Commission found that no preexisting right to pay existed because
the miners had waived their right to pay during the 24-hour memorial period.
In this proceeding, it is undisputed that the miners "on the next working
shift" were entitled to 4 hours of pay because they had reported for work
and were kept for 1-1/2 hours until it was determined that the withdrawal
order would not be terminated during their shift. As UMWA argues, the miners
were paid for 4 hours of work through no mistake or generosity of respondent,
but because the \fage Agreement required the miners to be paid for 4 hours
if they were allowed to report for work.
My framing of the issue in this case by reference to the payment of
4 hours of compensation under the Wage Agreement is also supported by the
fact that in the Eastern Associated case, the Commission referred to the Wage
Agreement in stating the issue. Its decision began with the following statement (3 FMSHRC at 1175):
The issue in this case is whether miners are entitled to compensation under section 111 of the * * * Act * * * where a withdrawal
order under section 103(k) * * * was issued after the miners had already withdrawn from the mine pursuant to their collective bargaining
agreement's non-compensated "memorial period." * * >'<
In its Eastern Associated decision, the Commission made it clear that
each dispute as to the proper interpretation of section 111 would have to be
made on a case-by-case basis. The Commission also stated that compensation
might be awarded under section 111 if withdrawal were "independently justified by exigent circumstances". Moreover, the Commission noted in its Eastern
Associated decision that even if the order in that case had not been issued,
the miners "would not have worked or reported" for work on the midnight-to8-a.m. shift 'J FMSHRC at 1179). [Emphasis supplied.]
I think that UMWA correctly interprets the first 4 hours of the "next
working shift" under the second sentence of section 111 as "non-idle time"
in contending that the miners are entitled to 4 hours of additional compensation. There are at least two reasons for the foregoing conclusion. First,
the miners on the midnight-to-8-a.m. shift, or "next working shift" were not

2011

idle during the first part of their shift. The act of reporting for work was
preceded by their driving from their residences to the nine. Exhibit No. 2
to the stipulations shows that there were 56 of them.
In all the cases in
which I have had testimony concerning the distances miners drive to work,
I have found that some of them drive a considerable distance.
Consequently,
the act of reporting for work at today's gasoline prices is an activity for
which the miners are entitled to be paid.
The miners were not permitted to
return home immediately, but were kept at the mine for 1-1/2 hours to their
detriment.
Consequently, the first 4 hours of the shift should be considered
as "non-idle time". As respondent argues in its brief, a person is idle if
he is not employed.
The miners were employed and they reported for work, so
I cannot see how they could be considered to have been idle at the beginning
of their shift.
My second reason for considering the. first 4 hours of the shift to be "nonidle time" is that I don't agree that respondent has sufficiently succeeded in
distinguishing the holdings in the Youngstown and Peabody cases from the facts
in this proceeding.
Respondent claims that iri those cases, the miners were
paid for working during the first part of their shift and that the Commission
held that they were entitled to be paid for the remaining part of the shift
because they would have worked during the second part of the shift except that
they were idled by the failure of the withdrawal order to be terminated.
In
the Peabodv case, the Commission stated that "[i]n order to resolve a possible
contractual dispute over reporting pay, Peabody permitted the eight miners to
work the first four and one-half hours of their shift" (1 FMSHRC at 1787).
In this proceeding, respondent obviously chose to make an interpretation
of the reporting-pay provisions of the Wage Agreement and chose to pay the
miners for 4 hours of compensation. Thus, the payment of 4 hours of compensation in this proceeding was in return for the miners having reported for
work.
Consequently, I don't think that the Commission's holdings in the
Youngstown and Peabody cases can be distinguished from the facts in this
proceeding.
In this proceeding, as in those cases, the miners were paid for
something they did, namely, reporting for work and staying at the mine for
1-1/2 hours.
If a company allows its miners to report for work at all, it knows that
it will have to pay them for 4 hours under the Hage Agreement.
The company
also knows that it will have to pay for 4 hours under the second sentence of
section 111 if the order is not terminated.
If I were to interpret section 111
as I am urged to do by respondent, a company would be able to act indifferently about notifying its miners not to report for work and could allow them
to come to the mine and then leisurely determine within the first 4 hours of
the shift whether the order is going to be terminated during the "next working
shift". An imminent danger order had been issued in this instance because of
an accumulation of explosive concentrations of methane in the bleeder entries
of the No. 3 longwall area of the mine (Stipulation Nos. 6 & 8). The order
was issued on June 18 and was not terminated until July 10 (Stipulation
Nos. 6 & 7).
It does not appear that management should have had any great
difficulty in determining that the order would not be terminated on the "next
working shift" so that the miners could have been notified not to report for
work.

2012

My decision that the second sentence in section 111 requires that the
miners in this proceeding be paid for the remaining 4 hours of their shift,
because they were idled for those 4 hours by the withdrawal order, is not
unfair to respondent because it· can reduce its exposure to having to pay the
miners. for 4 hours under the Wage Agreement and for 4 hours under section 111
by simply notifying the miners not to report for work "on the next working
shift" when a withdrawal order issued on the preceding shift has not been
terminated.

Interest
UMWA's brief (p. 8) requests that I award interest at the rate of 12
percent. mrwA correctly cites the Youngstown and Peabody cases, supra, as
precedents for the Commission's having ordered the payment of interest in
compensation cases. In ea.ch of those cases, the Commission awarded interest
at the rate of 6 percent per annum.
the Peabody case, the judge had
awarded interest at the rate of 6 percent per month which would be 72 percent
per annum.
The Commission reduced the rate from 6 percent per month to 6 percent per year without.any discussion, presumably because a rate of interest
of 72 percent per annum cannot be justified even at today's prevailing high
interest rates.

rn

I have ordered payment of rates of interest in discrimination cases in
excess of 6 percent per annum.
Except for having indicated in the Peabody
case that a rate of 6 percent per month is excessive, I do not believe the
Commission has established any guidelines to be used in determining how to
arrive at an equitable rate of interest. U~fivA's brief (p. 8) states that the
National Labor Relations Board has adopted the sliding interest scale charged
or paid by the Internal Revenue Service on the underpayment or overpayment
of federal taxes. mruA's brief (p. 8) states that when its attorney checked
with the Internal Revenue Service, he learned that the current interest rate
being used by IRS is 12 percent per annum.
UillvA points out that the federal prime interest rate at which businesses,
such as respondent, borrow, money is currently almost three times higher than
the 6 percent rate awarded in the Youngstown and Peabody cases. U~fivA states
that the disparity between a 6-percent rate and the prime rate serves as an
incentive for operators to delay payment of compensation owed under the Act
for as long as possible since the operators are, in effect, borrowing money
from the miners at about one-third the rate of interest the operators would
otherwise pay.
Respondent's brief does not discuss the issue of interest raised in
initial brief.

U~A~s

It appears to me that u~nvA has made a convincing argument for ordering
the payment of compensation at a rate of 12 percent. I doubt that any miner
could borrow money to buy an automobile or house at a rate of interest as lo~
as 12 percent. Therefore, I shall hereinafter provide for the compensation
due the miners under this decision to be paid at a rate of 12 percent. A rate
of 12 percent is not unfair to respondent and is on the low side when considered from the standpoint of what the miners would have to pay to borrow money.

2013

WHEREFORE, for the reasons hereinbefore given, it is ordered:
(A) The motion for summary decision filed by UHhlA on April 17, 1981,
is granted.
(B) The Complaint for Compensation filed on March 23, 1981, is granted
and respondent is ordered, within 30 days from the date of this decision,
to pay each miner the 4 hours of compensation shown on Exhibit 2 to the
parties' stipulations in this proceeding. The compensation shall be paid
with interest at 12 percent per annum from June 19, 1980, to the date of
payment.

•

~C.r;J

.··

~

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

Distribution:
Kurt Kobelt, Esq., Attorney for United Mine Workers of America,
900 - 15th Street, £\11-J, Wa;=;hington, DC 20005 (Certified Mail)
Marshall S. Peace, Esq., Attorney for Beatrice Pocahontas Company,
P.O. Box 11430, Lexington, KY 40575 (Certified Mail)
Allen Williamson, Superintendent, Beatrice Pocahontas Company,
Drawer L, Oakwood, VA 24531
Assistant Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

2014

Beatrice Mine as of Jur1e 19, r--q-Q_
ME

HOUPJ:,Y RATE

mny A. Absher
:rk S •.~-:rip, Jr.
:eve A. Bailey
~nr_y Baker, Jr.
<l A. Balcrwin
)e Ble-..,-ins
irl G. Babinski
.en Boyd
,nny R. Boyd
Lrliss R. Breeding
tby Brown
)lley Caillpbell
Lyrrond Clevinger
:ssie L. Daniels
·ankie L. Deel
Llph J • Fitzgerald
tadius M. Hagy
ladius K. Hagy
1rdon R. Hale
tmes D. Hale
ml W. Ha-::.Tis
idrew E. Keen
:rry R. Keene
:-ven D. Kincaid
tmeS .n.. Mabe
Jnr1ie E. .M:iggard
_di'ley A. 1"'.axwell
:even G. McBride
mny D. Miller
~ian D. MJney
trrell Owens
:rry Lee Perdue
:rald W. Plaster
iillips c. Presley
mes C. Reynolds
mald G. P..ichardson
:nest Rife
mes H. Shortridge
Lekey Sh:Jrtridge
mald W. Shortridge
1dy w. Shortt
rrlos Shortridge
~:!IDiS C. Smith
:-egory K. Smith
:-nnld C. Stanley, Jr.
·s ddy Stiltner
=e Roy Stiltner
)bby J. Street
1drsv Szaller
:-eddie L. :-'ickle
3yrrDnd E. Tiller
)nnie w. 'Ibney
mny W. Vandyke
~il Ward, Jr.
iward A. Wells
~nnis J. White

10.565
10.160
10.565
10.160
9.498
10.565
10.160
10.160
10.160
10.160
9.498
9.793
10.160
10.160
10.565
10.160
10.565
10.56'
9 .49~
10.565
10.160
10.160
10.565
10.565
9.793
10.565
10.565
10.565
10.160
10.565
10.269
10.160
10.160
10.565
10.565
10.565
10.565
10.565
10.565
10.565
10.565
9.793
10.565
10.565
10.565
10.160
9.906
10.565
10.565
10.160
10.565
10.565
10.565
10.565
10.565
10.565

HOUFS PAID

4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4

4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4
4

4
4

2015

AMJl.Th.1T CLAIMED

43.46
41.84
43.46
41.84
39.19
43.46
41.84
41.84
41.84
41.84
39.19
40.37
41.84
41.84
43.46
41.84
43.46
43.46
39.19
43 .46
41.84
41.84
43.46
43.46
40.37
43.46
43.46
43.46
41.84
43.46
42.28
41.84
41.84
43.46
43.46
43.46
43.46
43.46
43.46
43.46
43.46
40.37
43.46
43.46
43.46
41.84
40.82
43.46
43.46
41.84
43.46
43.46
43.46
43.46
43.46
43.46

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

August 28, 1981
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Contestant

CONTEST OF ORDER
Docket No. CENT 81-223-R

v.
Order No. 1024387;
5/13/81

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS~RATION (MSHA),
Respondent

Charleston No. 1 Mine

ORDER OF DISMISSAL
On May 13, 1981, a Federal inspector issued a combined
citation and imminent danger withdrawal order to Garland
Coal Company. 1/ Contestant claims that the citation should
be modified to-contain a finding that the violation alleged
by the inspector constituted an "unwarrantable failure" to
comply with the cited standard. 2/ The Secretary of Labor
contends that under the Act, findings of imminent danger and
unwarrantable failure are mutually exclusive. Without
passing on the issue raised by the Secretary, I conclude
that Contestant does not have the right under the Act to
challenge the citation.

1/
Section 104(a) directs an inspector to issue a citation
If, on the basis of an investigation, he finds that an
operator has violated any mandatory safety or health standard.
In this case, the Inspector charged that Garland had
failed to properly store explosives that had been carried to
a blasting site, as required by 30 C.F.R. § 77.1303(c).
Section 107(a) requires an inspector who discovers an
"imminent danger" to issue an order requiring the operator
immediately to withdraw all persons from the affected area.
An "imminent danger" is a condition that could be expected
to cause death or serious physical harm before it can be
corrected.
Section 3(j).
The record does not disclose whether Garland has challenged the citation/order before this Commission.
Garland
has not sought to intervene in this proceeding.
2/
There is no provision for unwarrantable failure findings in imminent danger orders issued under § 107. Contestant is challenging the citation, not the order.

2016

Under§ 105(d) of the Act, a mine operator may contest
"the issuance or modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty • . . or the reasonableness of the length
of abatement time fixed in a citation or modification thereof issued under section 104."
(Emphasis added.) A miner or
representative of miners 3/ may contest "the issuance, modification or termination of any order issued under section 104,
or the reasonableness of the length of time set· for abatement by a citation of modification thereof issued under
section 104." The words "or citation" are conspicuously
absent from the list of items a miner or representative of
miners may contest. Therefore, since Contestant is a representative of miners challenging a citation, the Notice of
Contest must be dismissed. !/
Barring miners and representatives of miners from
contestng citations may appear to leave an imbalance in the
Act's enforcement scheme, particularly since miners are
given a key role in that scheme. But the Act gives the
Secretary primary responsibility for enforcing the Act.
With that responsibility must come some measure of discretion. ~/
Therefore, the case is DISMISSED.
1

.

cu1u2 s 4f_1~::,·c:L"/L6L
.)
'

James A. Broderick
Chief Administrative Law Judge

3/
Contestant's status as a representative of miners has
not been questioned.
4/
The U.S. District Court for the District of Columbia
recently declined to decide whether § 105(d) prevents miners
and representatives of miners from contesting citations,
preferring to have the Commission resolve the issue. Council of the Southern Mountains v. Donovan, No. 79-2982 (D.D.C.
1981), 2 BNA MSHC 1329, 1332, n. 8.
5/
Miners and representatives of miners may participate as
parties to Commission proceedings if the mine operator
elects to challenge a citation, or a civil penalty based on
it.
29 C.F.R. § 2700.4

201'7.

Distribution:

By certified mail.

Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 Fifteenth Street, N.W., Washington, DC 20005
Robert A. Cohen, Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

2018

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

AUG 2 8 lf.~1
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding

v.

Docket No. WEVA 81-189
A.O. No. 46-05166-03016

Docket No. WEVA 81-188
A.O. No. 46-05166-03015V

V & R COAL CORP.,
Respondent

No. 19-B Mine
DECISIONS

Appearances:

Catherine M. Oliver, Attorney, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the petitioner.

Before:

Judge Koutras
Statement of the Case

These civil penalty proceedings were initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty
assessments for 12 alleged violations of certain mandatory safety standards.
Respondent filed a timely answer and notice of contest and a hearing was
convened on August 11, 1981, in Charleston, West Virginia. The petitioner
appeared and presented its cases, but the respondent did not and~was
held in default. Bench decisions were rendered and they are herein reduced
to writing in accordance with Commission Rule 65, 29 C.F.R. 2700.65(a).
Issues
The issues presented in this proceeding are: (1) whether respondent
has violated the provisions of the Act and implementing regulations as
alleged in the proposal for assessment of civil penalties filed in this
proceeding; and, if so, (2) the appropriate civil penalty that should be
assessed against the respondent for the alleged violations based upon
the criteria set forth in section llO(i) of the Act.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of
such penalty to the size of the business of the operator, (3) whether the

2019

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 et~·
2.

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

3.

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

The record in these proceedings reflects that the respondent received
actual notice of the scheduled hearings in Charleston. Further, correspondence
from the President of V & R Coal Company to the Philadelphia Regional
Solicitor's Office advises the solicitor that respondent is no longer
in business, has no assests, and that respondent wishes to "withdraw any
contest of the above claims". However, as indicated above, the respondent
failed to appear at the hearing to present any evidence regarding the
status of its mining operations and I conclude that respondent has waived
any further right to be heard. I have considered this case de ~ and my
decisions are rendered on the basis of the evidence and testimony of
record as presented by the petitioner.
Findings and Conslusions
Docket No. WEVA 81-188
Fact of violations
MSHA Inspector Melvin C. Harper confirmed that he issued citation
0661931, upon inspection of the mine on June 2, 1980, and that he
cited the respondent with a violation of mandatory standard section 75.200
for failure to follow his approved roof control plan in that a cut of
coal had been taken out and no temporary roof supports had been installed
(exhibit G-1). Mr. Harper identified the applicable roof control plan
(exhibit G-2), and testified that drawing No. 1, item 2, page 14 of
the plan required the installation of temporary supports and that this
was the plan provisions violated by the respondent (Tr. 7-16).
Inspector Harper confirmed that he also issued citation 0661932
on June 2, 1980, charging the respondent with a violation of section 75.200
for a roof control violation. Permanent roof supports were not installed
in an area which had been holed through, and this was in violation of
drawing No. 2, item 4, page 15 of the applicable roof control plan
(exhibits G-2, G~3); (Tr. 17-19).

2020

I conclude and find that the petitioner has established the fact
of violation as to both citations issued in this docket and they are
AFFI&.'1ED.
Gravity
With regard to citation 0661931, Inspector Harper testified that he
believed the violation was serious because the mine has a history of two
to six inch draw rock, which is unpredictable, and the likelihood of a
roof fall would be· greater in this case because he believed the cited
roof conditions had been left unattended since the last production shift
on May 29. A roof bolter and his helper were exposed to the hazard of a
possible roof fall (Tr. 21-22).
Inspector Harper testified that the roof conditions cited in
citation 0661932 were also serious because of the area of unsupported roof,
which he estimated to be 20 feet wide by forty feet long, and the fact
that the draw rock was present. Further, he indicated that the roof
was totally unsupported, that is, there was not permanent or temporary
support in the area cited and two men were exposed to a possible roof
fall (Tr. 23).
I find the two citations issued by the inspector in this case were
both very serious violations. They were issued at the approximate
same location in the section and exposed miners who were present there
to a possibility of a serious roof fall accident.
Negligence
Inspector Harper testified that the roof conditions cited in citations
0661931 and 0661932 should have been known to mine management because the
area was required to be pre-shifted and on-shifted. His inspection
revealed that the cited conditions had been left uncorrected since prior
shifts, and he could find no indications that the cited areas haa been
pre-shifted. As a matter of fact, he indicated that these circumstances
prompted him to issue the citations as section 104(d)(2) unwarrantable
failure withdrawal orders (Tr. 21-23).
On the basis of the evidence and testimony adduced by the petitioner
in this case, I conclude that the citations issued by inspector Harper
resulted from the respondent's lack of due care and that the respondent
was negligent. While I believe that the level of negligence borders
on gross neglect, I am constrained not to make such a finding in this
case absent any evidence of a deliberate and reckless omission by respondent's
management.
Good faith compliance
Compliance was achieved by the issua·nce of withdrawals orders,
and while Inspector Harper testified that the conditions were corrected

2021

and the roof areas properly supported when he next returned to the mine,
I cannot conclude that the respondent is entitled to any special consideration
for rapid good faith abatement of the two citations in question.
Docket No. WEVA 81-189
Fact of violations
MSHA Inspector Issac H. Jenkins, Jr., testified that he conducted
an inspection at the mine on July 24, 1980, and he confirmed that he
issued five section 104(a) citations for violations concerning certain
mandatory electrical safety standards. He confirmed that he issued
citation 0640452 for a violation of section 75.521, citation 0640453
for a violation of section 75.703, citation 0640454 for a violation of
section 75.900, and citations 0640455 and 0640456 for violations of
section 75.503 (exhibits G-1 through G-5; Tr. 7-33).
Inspector Jenkins testified as to the conditions which prompted
him to issue the aforementioned five citations. The first citation
was issued after he found that grounding conductors for the surface
lightning arresters were not separated from the underground power cable
grounding conductor, the second for failure to properly completely
ground a battery case located on a scoop battery charger to the frame
of the charger, and the third one was issued for failing to provide an
adequate ground phase protection for the section feeder breaker power
cable in that a test conducted by him on the circuit revealed a faulty
relay switch which failed to open and de-energize the system. As for
the remaining two citations, he testified that they were permissibility
violations for a shuttle car which had an excessive opening between the
cover plate and starter enclosure, and a Galis roof bolter which had
a damaged light fixture which was not securely fastened to the machine
(Tr. 7-33).
Based on the testimony and evidence adduced by the petitioner
with respect to the aforementioned citations, I conclude and firfd that
the conditions and practices described by Inspector Jenkins on the face
of each of the citations which he issued constituted violations of the
cited mandatory standards, and that his testimony establishes the fact
of violations as to each of the citations and they are all AFFIRMED.
Good faith compliance
Inspector Jenkins testified that all of the citations which he issued
were abated in good faith by the respondent, and I adopt this conclusion
by the inspector as my finding as to each of the citations in question.
Negligence
With regard to citation 0640452 concerning the inadequately grounded
lightning arresters, Inspector Jenkins testified that he doubted the

2022

respondent knew of the condition cited because the respondent did not
make the initial electrical installation at the mine, that the condition
would only be visible to the trained eye, and that there is no requirement
for a daily pre-shift of the system. As for the remaining citations,
Inspector Jenkins believed that the respondent should have been aware
of the conditions cited through weekly or other inspections which should
have disclosed the conditions cited.
Considering the testimony of Inspector Jenkins, I find that citation
0640452 did not result from the respondent's negligence, but that
citations 0640453 through 0640456 resulted from the respondent's failure
to exercise reasonable care and that this constitutes ordinary negligence
as to these four citations.
Gravity
I conclude and find that all of the citations issued by Inspector
Jenkins were serious. Although he testified that the mine is not gassy
and that the equipment he observed was in otherwise good condition, he
did indicate that failure to properly ground the lightning arresters
could have affected the underground mining equipment since the main power
dable ground system was tied to the same arresters and could have resulted
in energizing the machine frames. Failure to properly ground the battery
frame and the defective relay switch could have resulted in shock hazards,
and the permissibility citations could have developed into more serious
hazardous conditions due to the continued use of the cited equipment.
MSHA Inspector Tonv Romeo testified that he conducted an inspection
of the mine on August 6, 1980, and he confirmed that he issued citation
0659330 for a violation of section 75.1715 for failure by the respondent
to follow the mine check in and out system; citation 9659328 for a
violation of section 75.303 after finding no record of a pre-shift date
or initials by two belt conveyors; and' citation 0659329 for a violation
of section 77.410 after finding a payloader being operated on the mine
surface area without an operable reverse signal alarm (Exhibits G-6
through G-8; Tr. 38-56).
""
Inspector Romeo confirmed that he issued citation 0659334, citing
a violation of section 75.400 after finding an accumulation of dry, loose
coal and coal dust on the mine floor in the number one entry. He measured
the accumulations and they measured up to 12 inches deep, 18 inches wide,
over an area of some 70 feet long. He observed no float coal, and the
accumulations which he did observe appeared black in color and he saw no
evidence of any rock dusting. He took several samples from the floor
in accordance with his usual approved procedures, and submitted them for
laboratory analysis to support the citation for a violation of section
75.403 for failure to adequately rock dust (exhibits G-9 through G-11;
Tr. 48-57).
In view of the foregoing testimony and evidence adduced by the
petitioner in support of the citations issued by Inspector Romeo, I
conclude and find that the respondent violated the mandatory safety
standards cited and the citations in question are AFFIRMED.

2023

Good faith ·comuliance
Inspector Romeo stated that each of the citations he issued were
timely abated in good faith, and I adopt this testimony as my finding
on this issue.
Negligence
I conclude and find that each of the citations issued by Inspector
Romeo resulted from the respondent's failure to exercise reasonable
care to prevent the conditions cited and that this constitutes ordinary
negligence as to each of the citations.
Gravitv
Inspector Romeo testified that the failure to follow the mine checkin-and-out system was not serious in this case becuase the mine was small,
and only three of the six men on the one section did not check in.
I
concur in the inspector's conclusions and find that citation 0659330
was non-serious.
With regard to the failure to record the results of the conveyor
belt pre-shift examination, Inspector Romeo stated that he did not know
whether the examination had in fact been made, but the failure to make
a record of such an examination by dating and signing the book could
possibly result in someone not being apprised of possible hazardous
conditions which may exist in the cited area.
I find that this citation
· is serious.
With regard to the inoperative back-up alarm on the payloader, Mr. Romeo
testified that he observed no one in the proximity of the machine
and he indicated that the truck driver who came to the area to load his
truck would in fact alight from the truck and operate the paylo~~er himself.
Thus, he would be the only person in the area, and in these circumstances,
I cannot conclude that the citation was serious.
I conclude that it was
not.
With regard to the accumulations and rock dust citations, I find
that they were both serious. Although Inspector Romeo testified that he
observed no equipment operating on the day he issued the citations, he
did see evidence that equipment and machines had operated in the area
where he found the accumulations of coal and coal dust, and considering
the extent of those accumulations as well as the results of the rock dust
samples which reflects percentages far below the acceptable standards,
I conclude that the citations were serious. Mining was taking place in
the cited areas, and in the event of a fire, the accumulations as found
by the inspector would certainly add to the hazard.
Size of business and the effect of the assessed penalties on the respondent's
ability to remain in business.

2024

\

The testimony of the inspectors reflects that the respondent no
longer operates the mine in question and that MSHA considers it to be
in a temporary abandoned status. All of the equipment has apparently
been removed from the mine and production has ceased. Further, by
failing to appear at the hearing, I have no way of confirming respondent's
present financial condition and the effect of the assessed penalties on
the respondent. Under the circumstances, I conclude that the penalties
will not otherwise adversely affect his operation since he is apparently
no longer in business.
As for the size of the operation, the record establishes that at
the time of the citations the respondent leased the mine from Itmann Coal
Company, but operated it as respondent's sole mining venture under a
separate mine identification number. At the time of its operation, the
mine operated on one production shift, with mine employment of approximately
24 employees, and daily coal production at 300 tons. Under the circumstances,
for purposes of any civil penalty assessments, I conclude and find that
the respondent's mining operations were small.
History of prior violations
Petitioner has submitted a computer print-out which reflects that
during the period June 2, 1978 to June 1, 1980, respondent has paid
$2,196 for a total of 37 assessed violations issued during this time.
The paid assessments include one prior citation for a violation of section
75.200, five prior citations for violations of section 75.503, and one
each for sections 75.400 and 75.403. Considering the totality of all
prior paid assessed citations, I cannot conclude that respondent's prior
history of violations is such as to warrant any additional increases
over the assessments which I have levied in these cases.
Penalty Assessments
On the basis of the foregoing findings and conclusions, I conclude
that the following penalties are reasonable and appropriate for the citations
which have been affirmed in these cases:
Docket No. WEVA 81-188
Citation No.

Date

30 CFR Section

Assessment

0661931
0661932

6/2/80
6/3/80

75.200
75.200

$ 750
750
$1500

Citation No.

Date

30 CFR Section

Assessment

0640452

7/24/80

75.521

$

Docket No. WEVA 81-189

2025

44.00

Citation No.

Date

30 CFR Section

Assessment

0640453
0640454
0640455
0640456
0659330
0659328
0659329
0659334
0659335

7/24/80
7/24/80
7/24/80
7/24/80
8/6/80
8/6/80
8/6/80
8/6/80
8/6/80

75.703
75.900
75. 503
75.503
75.1715
75.503
77.410
75.400
75.403

$

72.00
72.00
78.00
78.00
15.00
38.00
25.00
60.00
28.00
$ 510.00

ORDER
The respondent IS ORDERED to pay civil penalties in the amounts shown
above, totaling $2,010 within thirty (30) days of the date of these decisions
and order, and upon receipt by MSHA, these cases are DISi'!ISSED.

~n4.cav·~~
~ri~A. Ko~
Administrative Law Judge

Distribution:
Catherine M. Oliver, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Marekt St., Philadelphia, PA 19104 (Certified Mail)
James Johnson, V & R Coal Corp., P.O. Box 3324, Charleston, WV 25333
(Certified Mail)

2026

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

22041

AUG 31 \001
Contest of Order

UNITED STATES STEEL CORPORATION,
Contestant
v.
SECRETARY OF LABOR,

Docket No. PENN 81-9-R
·

Robena No. 1 Mine

Respondent
Civil Penalty Proceeding

SECRETARY OF LABOR,
Petitioner

Docket No. PENN 81-52
A.C. No. 36-00909-03042V

v.
UNITED STATES STEEL CORPORATION,
Respondent

Robena No. 1 Mine

DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Secretary of Labor;
Louise Q. Symons, Esq., U.S. Steel Corporation, Pittsburgh,
Pennsylvania, for United States Steel Corporation.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

On October 7, 1980, United States Steel Corporation (herein;fter U.S.
Steel) filed a notice of contest of an order of withdrawal issued on
September 8, 1980, under section 104(d)(l) of the Federal Mine ·safety and
Health Act of 1977, 30 U.S.C. § 814(d)(l) (hereinafter the Act). On
January 24, 1981, the Secretary filed a petition for assessment of civil
penalty with respect to this same order of withdrawal. Pursuant to the
Secretary's motion filed February 10, 1981, these two proceedings were
consolidated.
Upon completion of the prehearing requirements, a hearing was held in
Pittsburgh, Pennsylvania, on June 22, 1981. The following witnesses testified on behalf of U.S. Steel: Louis E. Tiberi, Thomas Stavischeck and
Paul M. Kovell, Jr. Orlando J. Abbadini testified on behalf of the Secretary
of Labor, Hine Safety and Health Administration (hereinafter HSHA). Both
parties submitted posthearing briefs.

2027

ISSUES
1.

Whether the order was properly issued.

2. Whether U.S. Steel violated the Act or regulations as alleged by
MSHA and, if so, the amount of the civil penalty which should be assessed.
APPLICABLE LAW
Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), provides in
pertinent part as follows:
If, upon 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.
§

75.200

Roof control programs and plans.
[Statutory Provisions]

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system of
each coal mine and the means and measures to accomplish such
system. The roof and ribs of all active underground roadways,
travelways, and working places shall be supported or otherWise
controlled adequately to protect persons from falls of the
roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining system of each coal
mine and approved by the Secretary shall be adopted and set
out in printed form on or before Hay 29, 1970. The plan shall
show the type of support and spacing approved by the Secretary. Such plan shall be reviewed periodically, at least
every 6 months by the Secretary, taking into consideration any
falls of roof or ribs or inadequacy of support of roof or
ribs. No person shall proceed beyond the last permanent support unless adequate temporary support is provided or unless
such temporary support is not required under the approved roof
control plan and the absence of such support will not pose a
hazard to the miners. A copy of the plan shall he furnished
to the Secretary or his authorized representative and shall be
available to the miners and their representatives.

2028

STIPULATIONS
The parties stipulated the following:
1.

U. S. Steel owns and operates the Robena Number 1 Mine.

2. U. S. Steel is involved in the extraction of raw coal from its
natural deposits in its operations at the Robena Number 1 Mine.
3. Inspecto.r Orlando J. Abbadini was at all times relevant hereto, an
authorized representative of the Secretary of Labor.
4.

u. S. Steel and the Robena Number 1 Mine, are subject to the Act.

5.

The Administrative Law Judge has jurisdiction over these proceedings.

6. The subject order and modification thereof, were properly served by
a duly authorized representative of the Secretary of Labor, upon an agent of
U. S. Steel, at the dates, times and places stated therein and may be admitted
into evidence for the purpose of establishing their issuance and not for the
truthfulness or the relevancy asserted therein.
7. The assessment of an appropriate civil penalty in this proceeding
will not affect U. S. Steel's ability to continue in business.
8. The appropriateness of the penalty, if any, to the coal operators
business, should be determined based on the fact that in 1979, the company
had an annual tonnage of 15,080,435 production tons and the Robena Number 1
Mine, had an annual tonnage of 671,131 production tons •
.,

9. The alleged violation was abated in a timely fashion and the
operator demonstrated good faith in obtaining abatement.
10. U.S. Steel is not chal~enging the inspector's determination that
the violation was significant and substantial.
FINDINGS OF FACT
I find that the evidence of record establishes the following facts:
1. U. S. Steel. Corporation owns and operates the Robena
Numb'er 1 Mine.
2. Inspector Orlando J. Abbadini, who issued the subject withdrawal
order, was a duly authorized representative of the Secretary of Labor.
3. Inspector Abbadini is qualified as an expert in the area of mine
safety and health.

2029

4. On.August 26, 1980, Inspector Abbadini, as part of a regular triple A
inspection, observed the conditions of the roof at Numbers 19 and 20 crosscuts.
Upon observing slips ·and looseness in the roof in that area, he informed Mine
Foreman Stavischeck of the conditions. Mr. Stavischeck indicated that he was
aware of the problem and would take care of it. No citations or orders were
issued with respect to the roof conditions on that day.
5. Assistant Hine Foreman Stavischeck was informed of the roof conditions in Nos. 19 and 20 crosscuts by Inspector Abbadini on August 26, 1980.
6. On September 8, 1980, Inspector Abbadini continued. to perform a
regular inspection of Robena No. 1 Mine and before going underground was told
by Mel Tishman, the Motorman, that conditions at number 19 crosscut had not
improved.
7. In spec tor Abbadini did not inform management of Mel the Motorman's
comments about the roof conditions.
8. On September 8, 1980, Inspector Abbadini asked Assistant Hine Foreman
Paul Kovell whether the roof conditions in Nos. 19 and 20 crosscuts had been
taken care of and he replied that they had not been corrected.
9. On September 8, 1980, Inspector Abbadini, accompanied by Paul Kovell,
Louis E. Tiberi, General Assistant Mine Foreman, Don Albani, and the UMWA
walkaround, returned to numbers 19 and 20 crosscuts and through the visual
and sound methods of testing, determined that the roof required immediate
attention.
/

10. The condition of the roof in the cited area had deteriorated between
August 26, 1980 and September 8, 1980, to the point where the violation was
of such a nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.
11. On.September 8, 1980, at 12:00 p.m., the inspector issued Order
No. 841473 under section 104(d) of the Act for a violation of th~ operator's
approved roof control plan. The order alleged the following:
The roof along No. 4 entry at No. 19 crosscut switch
where empties and loads are stored and at No. 20 crosscut, an
active track haulage for 3 Main 6-1/2 (018) section was loose,
drummy, broken, potted cavities, with slips running across.
The roof had fallen around several roof bolts, rendering the
bolts ineffective. Additional supports had not been
"installed. This track haulage was used for mantrip travel
and coal haulage. Assistant Mine Foreman Lou Tiberi and
General Assistant Tom Stavischeck knew of this reported
condition.
12.

The conditions were as stated in withdrawal Order No. 841473.

2030

13. The operator knew or should have known of the conditions described
in withdrawal Order No. 841473.
14. On July 29, 1980, HSHA had issued Citation No. 0837858 to the operator pursuant to section 104(d) of the Act. No complete inspection occurred
between the date that citation was issued and the date the inspector found
the instant violation of mandatory health and safety standard 30 C.F.R.
§ 75.200.
15. The failure to abate the conditions prior to September 8, 1980, was
due to the unwarrantable failure of the operator to comply with mandatory
health and safety standard 30 C.F.R. § 75.200.
16. The conditions described in withdrawal Order No. 841473 were abated
in a timely fashion by the installation of four cribs and supplemental
10 foot conventional bolts.
17. On September 8, 1980, the order was terminated and at 12:45 p.m.
withdrawal Order No. 841473 was modified to delete reference to termination
due date and time.
18.

The operator demonstrated good faith in abating the condition.

19. Robena No. 1 Mine is a large coal mine and U.S. Steel is a large
operator.
20. The assessment of an appropriate civil penalty in this proceeding
will not affect U.S. Steel's ability to continue in business.
Violation of 30 C.F.R. § 75.200
Order No. 814173 was issued for an alleged violation of 30 C.F.R.
75.200 which requires, inter alia, 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
o.r ribs." HSHA contends that the conditions of the roof in the area of
crosscuts nineteen and twenty were such that the existing roof supports wer~
inadequate. U.S. Steel asserts that the roof was well bolted at the No. 19
crosscut and that there were no slips. The operator also contends that the
cond·itions in the No. 20 crosscut, specifically a cavity in the roof, did not
indicate a need for immediate attention. It further states that there was
no problem with the roof at No. 19 or 20 intersections.
§

Inspector Abbadini testified that he initially noticed the roof conditions in Nos. 19 and 20 crosscuts on August 26, 1980, while he was walking
the haulage out. He saw slips, looseness of the roof and an exposed
cavity, all of which were close to the manhole where the switch operator
was stationed. The inspector observed a local fall at the No. 20 crosscut
about 25 feet from the intersection and he also saw sloughing around some
bolts in the No. 19 intersection. Since this was an active working area he

2031

spoke to Tom Stavischeck, an assistant mine foreman, who indicated that he
knew about the roof condition and would take care of it. The condition was
not serious enough to warrant issuing a citation at this time.
The inspector returned to this section of the mine on September 8, 1980,
as part of a regular Triple A inspection. Upon arriving he spoke with Mel
Tishman, the motorman, who complained about the condition at No. 19 crosscut.
He also spoke with Assistant Hine Foreman Paul Kovell, who indicated that
nothing had been done to correct the roof problems. The inspector then proceeded to the area in question accompanied by Louis Tiberi, Paul Kovell and
Donald Albani. There he noticed that roof conditions had worsened, showing
severe deterioration around the bolts. The slips had opened up due to stress
from pillar mining. Visual and sound inspection indicated that there was
dru~miness in the roof.
The inspector testified that the condition presented
a danger of causing a fatal accident and that additional supports, cribs and
roof bolts were necessary to remedy the situation.
U.S. Steel presented testimony contradicting the inspector's testimony
and also challenging his conclusions about the roof conditions and the
assessed danger. Thomas Stavischeck stated that he spoke with Inspector
Abbadini on August 26, 1980, and that he was not told about a roof problem.
He was aware of a cavity in the No. 20 crosscut where there had been a roof
fall but maintained that it had been there for 5 months with no change in
size. He saw no slips in the No. 19 crosscut and felt that there were no
problems with the roof which required immediate attention.
Paul Kovell, an assistant mine foreman testified that he was not aware
of any roof problems in the Nos. 19 and 20 intersection prior to September 8,
1980. He indicated that rehabilitative work was being done at that time
inside the No. 20 crosscut where there was a cavity. Mr. Kovell stated that
he had an opportunity to observe roof conditions from a jeep during his
weekend runs, but had not noticed any slips in the Nos. 19 and 2Q. intersections requiring additional support.
Louis Tiberi, a general assistant mine forenan, testified that the
condition was good at the No. 20 crosscut. He had instructed Mr. Kovell to
bolt a s~all cavity located in the No. 20 crosscut, but the task had not been
completed by September 8, 1980. Hr. Tiberi insisted that this cavity did not
present a hazard, and that a man doing a preshift inspection would probably
not notice it. He saw nothing wrong with the roof in the No. 19 crosscut
and felt that the additional cribs which were installed to abate the order
served no purpose and provided no support. Hr. Tiberi, could not remember
testing the roof for drumminess on the day the withdrawal order was issued.
U.S. Steel argues that Inspector Abbadini's testimony regarding the violation is not credible. It asserts that Mr. Abbadini had difficulty describing the condition of the roof on August 26, 1980 and September 8, 1980 except
to say that it looked drummy and had slips. It also found the inspector's
definition of a slip or a clay vein to be inadequate. U.S. Steel maintains

2032

that the testimony of the management witnesses was straight forward and consistent and that their observations concerning the safety of roof conditions
should be believed.
HSHA argues that the inspector's testimony regarding roof conditions
was corroborated by notes which he made contemporaneously with his inspection. It points out that the inspector was consistent in his testimony on
both direct and cross-examination. Finally, MSHA relies on the inspector's
qualifications as an expert witness and his ability to judge the safety of
roof conditions as factors supporting the inspector's credibility.
In resolving the issue of credibility, I find that the inspector's
testimony is not unclear or inconsistent. If there are discrepancies, they
are only minor. As U.S. Steel concedes, the errors were with regard to
"inconsequential matters" and he was evasive only about "collateral matters."
(U.S. Steel Brief p. 7 and 8). The instances cited by U.S. Steel do not
undermine the inspector's qualifications as an expert witness. He kept careful and descriptive notes of his observations which accurately reflect his
testimony (Exh. G-5 and G-6). He also made a drawing, illustrating the roof
conditions uhile they were still fresh in his mind (Exh. G-1).
While the operator's witnesses all agreed that the roof conditions were
not serious enough to warrant a withdrawal order, they each admitted that
there was a cavity in the No. 20 crosscut. The operator's exhibit representing the area in question shows a slip which extends into the intersection at
the No. 20 crosscut. (Exh. 0-2). This drawing reinforces the -inspector's
testimony rather than management testimony regarding roof conditions. As the
inspector stated at the hearing, slips indicate that the roof is unstable,
posing a danger of a roof collapse and a fatal injury.
The inspector tested the roof for drumminess through the visual and
sound methods of testing. While the inspector recalled that Mr •.,. Tiberi
assisted him in these testing procedures, Mr. Tiberi simply states that he
does not remember whether he tested the roof on September 8. Since the
inspector's notes indicate that Mr. l'iberi had agreed that the roof needed
immediate attention, it appears that Mr. Tiberi' s lack of recollection was
used to avoid acknowledgement of the test results.
Having concluded that the conditions in the Nos. 19 and 20 crosscut
were as indicated in Order No. 841473, I find that MSHA has established a
violation of 30 C.F.R. § 75.200.
Unwarrantable failure
U.S. Steel has also challenged the issuance of the withdrawal order
on September 8, 1980. It claims that it had no notice of the alleged dangerous roof conditions and that it could not. have been aware of any problem
prior to the inspector's issuance of the order. U.S. Steel also claims that
the withdrawal order is defective because the inspector did not personally
observe the conditions which were the subject of the order. It maintains

2033

that Mr. Abbadini heard about a roof bolting problem while he was still on
the surface, and issued the order before going down to actually check on the
situation. U.S. Steel asserts that the inspector was therefore obligated to
find violations to support his order even though they did not actually exist.
Finally, the operator states that Inspector Abbadini received his information
about roof conditions from a miner and was obligated under section 103(g)(l)
of the Act to have the complaint reduced to writing and presented to management. It concludes that the inspector's violation of the Act justifies
vacating the Order. MSHA has countered each of U.S. Steel's arguments and
maintains that the withdrawal order was issued properly and· should be upheld.
The term "unwarrantable failure" was defined by the Interior Board of
Mine Operations Appeals as follows:
[Aln inspector should find that a violation of a mandatory
standard was caused by an unwarrantable failure to comply
with such standard if he determines that the operator
involved has failed to abate the conditions or practices
constituting such violation, conditions or practices the
operator knew or should have known existed or which it failed
to abate because of a lack of due diligence, or because of
indifference or a lack of reasonable care. Zeigler Coal
Company, 7 IBHA 280 (1977).
This definition was approved in the legislative history of the Act.
S. Rpt. No. 95-181, 95th Cong.; 1st Sess. 32 (1977).
HSHA argues that U.S. Steel knew or should have known of the roof conditions in Nos. 19 and 20 crosscuts. It presented evidence demonstrating that
the operator had actual knowledge of the violation. Inspector Abbadini testified that he had observed the roof conditions while engaging in a regular
inspection on August 26, 1980. He noticed sloughing in No. 19 intersection
around the bolts. The inspector stated that he was worried about the looseness of the roof and the exposed cavity since it was an active area and close
to the location of the switch operator. Since the condition was not serious
at the time, the inspector stated that he told management about the problem
and recommended bolting and cribbing. During the course of his conversation
with Tom Stavischeck on August 26, he learned that management was aware of
the problem and would take care of it. According to MSHA's statement of
facts, when the inspector arrived on September 8, 1980 to conduct a regular
triple A inspection, he asked Hr. Kovell whether the bad roof conditions in
19 and 20 crosscuts had been abated, and Mr. Kovell replied that they had
not. The inspector then rode the mantrip in with Mr. Kovell and Mr. Tiberi,
and observed the conditions. Finding that immediate attention was necessary,
the inspector issued the withdrawal order.
MSHA also offered exhibits showing the inspector's notes which were
written following the inspections of August 26, 1980 and September 8, 1980.
These notes mention the conversations the inspector had with management on
both inspection days.

2034

U.S. Steel contends that the inspector did not inform management prior
to September 8, 1980 of the roof conditions. Mr. Stavischeck testified that
the inspector did not mention any roof problems on August 26, 1980.
Mr. Kovell testified that when the inspector asked him whether the conditions
at 19 and 20 crosscuts had been taken care of, he replied that he had not
done any work in these areas. u. S. Steel does not attempt to explain t~· s
statement, although Hr. Kovell's testimony implies that he did not knm·: 1e
conditions to which the inspector was alluding.
After careful consideration of the testimony and evidence submitted, I
find that U.S. Steel did have actual knowledge of the conditions in Nos. 19
and 20 crosscuts. The inspector's testimony, together with his notes and
Mr. Kovell's statement that he had not done any work, lead me to this conclusion. Furthermore, even if the operator was not actually informed of the
roof conditions on August 26, 1980, it should have known that a dangerous
condition existed. The operator is required by law to preshift the area and
as HSHA points out, examination would have revealed the worsening conditions.
The evidence indicates that management was aware of the cavity in No. 19
crosscut and additional testing would have revealed the drumminess, sloughing, and slips. Therefore, U.S. Steel knew or should have known of the violation of 30 C.F.R. § 75.200. The inspector's finding of an unwarrantable
failure is reasonable in light of the facts and circumstances presented. See
Zeigler Coal, supra, at 296.
U.S. Steel has also challenged the withdrawal order based upon its
contention that the inspector did not personally observe the alleged condition but rather issued the order from the surface based upon a miner's complaint. I find this claim to be groundless. MSHA has established that
Inspector Abbadini came to the mine on September 8, 1980, and spoke with the
motorman on the surface, who informed him that conditions at Nos. 19 and 20
crosscuts had not been taken care of. He confirmed this complaint in his
conversation with Mr. Kovell, and thereupon, proceeded to the area in question accoMpanied by management. He issued the withdrawal order '9nly after
observing the deteriorated conditions. It was, therefore, validly issued.
Alleged Failure to Comply With Section 103(g)(l) of the Act
U.S. Steel's argues that the inspector was required to have the motorman's complaint presented in writing to the operator pursuant to section
lOJ(g)(l). Although citing no authority, U.S. Steel states that "the purpose
of this part of the Act is clearly to get a dangerous situation corrected
as soon as possible." (Brief p. 6). The language of this section clearly
demonstrates that it is inapplicable to the present situation. The pertinent
part states:
(g)(l) Hhenever a representative of the miners or a
miner in the case of a coal or other mine where there is no
such representative has reasonable grounds to believe that a
violation of this Act or a rnan~atory health or safety standard

2035

exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by
giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be
reduced to writing, signed by the representative of the miners
or by the miner, and a copy shall be provided the operator or
his agent no later than at the time of inspection, except that
the operator or his agent shall be notified forthwith if the
complaint indicates that an imminent danger exists.
On both August 26, 1980 and September 8, 1980, Inspector Abbadini was engaged
in a regular triple A inspection, when he received a complaint from Mel the
motorman. As the inspector stated at the hearing, "we get these complaints
every portal we go to, we get all kind of complaints from different miners
and if any of the complaints are dealing with any Health and Safety, any violations of any Health and Safety Act, we're to follow it up." (Tr. p. 60).
The inspector did not go to Robena ~line pursuant to a miner complaint and he
would have inspected the area in question regardless of any specific complaint. NSHA asserts that, "if such conversations by themselves were to make
an inspection into a 103(g) inspection, the clear language of the Act requiring miner complaints to be written would be subverted, [since] virtually every
inspection conducted would be considered 103(g) inspections and the inspector
could he placed in the intolerable position of not being able to talk with
miners informally for fear of having all enforcement actions vacated for
failure to get every miner statement placed in writing." I agree with this
contention, and find that the withdrawal order is valid since there was no
need for a written complaint pursuant to section 103(g).
Assessment of a Civil Penalty
MSl~ has proposed a civil penalty of $1,000.00 for the violation herein.
In considering, the appropriateness of this penalty, the six criteria set
forth in section llO(i) of the Act have been considered. The parties have
stipulated to the size of the operatbr and the effect of the proposed penalty
on the operator's ability to remain in business. I have considered the
operator's history of 194 violations over a 2 year period.

MSHA submits that the operator should be found grossly negligent in
failing to correct the violation because the evidence shows that the operator
knew or should have known of the violation. I disagree with this determination since the roof conditions did not deteriorate until after the August 26th
inspection. The inspector testified at the hearing that he did not issue any
citations on his initial inspection because the roof conditions were not
serious at that time. Therefore, although the operator ignored the inspector's instructions ahout correcting the condition, its negligen~e in this
regard involves only a 13 day period between inspections. U.S. Steel offered
evidence showing that it was correcting other roof problems which indicates
that the operator was concerned about roof falls and mine safety. Accordingly, I find that the operator should be charged with ordinary negligence.

2036

The inspector testified that the area where the violation occurred was
an active area since it was the main travelway for entering and exiting the
working face. He evaluated the likelihood of an accident occuring as
probable. The inspector indicated that the conditions presented a danger of
a roof collapse with a probable fatal injury to exposed miners. Based upon
this evidence, I find the violation to be serious.
While U.S. Steel did not exercise good faith in correcting the condition prior to September 8, 1981, it did abate the condition immediately upon
issuance of the withdrawal order. The evidence supports the stipulation that
the operator demonstrated good faith in achieving timely abatement.
My reduction in the amount of negligence attributed to the operator
should be reflected in the civil penalty. I therefore conclude that a penalty
of $600 should be imposed for the violation found to have occurred.
CONCLUSIONS OF LAW
1. The Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
2.

U.S. Steel and its Robena Mine are subject to the Act.

3. Withdrawal Order No. 841473 issued or September 8, 1980, charging
a violation of mandatory safety standard 30 C.F.R. § 75.200, is affirmed.
4. The violation of the above mandatory standard was caused by the
unwarrantable failure of U.S. Steel to comply with 30 C.F.R. § 75.200.
5. Withdrawal Order No. 841473, was properly issued under section
104(d)(l).
6. The violation of the above mandatory standard could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.
7.

U.S. Steel's contest of Order No. 841473 is denied.

8. Considering the criteria specified in section llO(i) of the Act,
U. S. Steel is assessed a civil penalty in the amount of $600 for the violation of 30 C.F.R. § 75.200.
ORDER
WHEREFORE IT IS ORDERED that the contest is DENIED and the subject order
is AFFIRMED.

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IT IS FURTHER ORDERED that U.S. Steel pay the sum of $600 within 30 days
of the date of this decision as a civil penalty for violation of 30 C.F.R.
§ 75.200.

\0. "-''""~ D.

(

,\~:::~. ""~ . . --.-

James A. Laurenson, Judge
/ i

/ j

Distribution Certified Mail:

\j'

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant Street,
Pittsburgh, PA 15230
David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Harrison B. Combs, UHWA, 900 15th Street, NW., Washington, DC.20005
* United States Government Printing Office; 1981--341-638/ 4360

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