December Index 1980
Commission Decisions
DENV 76-46
12-02-80 CF & I Steel Corporation
12-04-80 Glenn Munsey v. Smitty Baker Coal CO. NORT 71-96
VINC 77-112
12-09-80 Southern Ohio Coal Co.
DENV 79-1-P
12-10-80 Co-op Mining Co.
HOPE 78-722-P
12-19-80 Allied Chemical Corp.

Pg. 3459
Pg. 3463
Pg. 3472
Pg. 3475
Pg. 3478

Administrative Law Judge Decisions
12-01-80
12-02-80
12-02-80
12.;..02-80
12-02-80
12-04-80
12-05-80
12-09-80
12-09-80
12-09-80
12-11-80
12-15-80
12-16-80
12-16-80
12-16-80
12-16-80
12-16-80
12-16-80
12-17-80
12-17-80
12-18-80
12-18-80
12-18-80
12-18-80
12-18-80
12-18-80
12-22-80
12-24-80
12-30-80
12-30-80
12-30-80

A. H. Smith Stone Co.
Gex Colorado, Inc.
Gex Colorado, Inc.
Gex Colorado, Inc.
Carolina Stalite Co.
Rockite Gravel Co.
Burgess Mining & Construction Corp.
Mountain Energy, Inc.
Grove Crushing Co.
National Lime & Stone Co.
Neville Construction
St. Joe Zinc Co.
Jaquays Mining Corp.
Jaquays Mining Corp.
Climax Molybdenum Co.
Climax Molybdenum Co.
Jaquays Mining Corp.
Homestake Mining Co.
Little Bill Coal Co.
Eastover Mining Co.
Penn Allegh Coal Co.
Climax Molybdenum Co.
Maumee Haulers & Excavators
Maudlin Construction Co.
Little Egypt Coal Co.
Southern Ohio Coal Co.
S. M. Lorusso & Sons, Inc.
Arizona Crushing Co.
Mathies Coal Co.
Clinchf ield Coal Co.
Royal Darby Coal Co., Inc.

VA 80-2-M
WEST 80-327-R
WEST 79-28-M
WEST 80-328-R
BARB 79-319-P et al
LAKE 80-130-M
SE 80-47
SE 80-5
WEST 79-319-M
VINj:: 79-99-PM
CENT 80-180-M
YORK 80-86-DM
WEST 79-233-M
DENV 79-458-M
DENV 79-122-M
DENV 78-541-M
WEST 80-1-M
CENT 80-92-M
PIKE 78-308-P
,. VA 80-84
PENN 80-i71-R
DENV 78-553-M
LAKE 80-192-M
CENT 80-114-M
VA 80-85
WEVA 80-487-D
YORK 79-49-M
WEST H-195-M
PENN 80-277
NORT 78-387-P
KFNT 80-220

Pg. 3486
Pg. 3494
Pg. 3499
Pg. 3503
Pg. 3508
Pg. 3543
Pg. 3554
Pg. 3558
Pg. 3567
Pg. 3572
Pg. 3586
Pg. 3593
Pg. 3605
Pg. 3608
Pg. 3613
Pg. 3617
Pg. 3625
Pg. 3630
Pg. 3634
Pg. 3673
Pg. 3678
Pg. 3681
Pg. 3708
Pg. 3712
Pg. 3721
Pg. 3728
Pg. 3733
Pg. 3736
Pg. 3740
Pg. 3742
Pg. 3753

Commission Decisions

..-

-..

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~

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t

•I

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I

DECEMBER
Xhe following cases were Directed for Review during the month of December:
Secretary of Labor, MSHA v. Kerr McGee Co!po~ation, CENT 79-156-M;
(Judge Boltz, October 30, 1980)
Secretary of Labor, MSHA v. Sigler Mining, Inc., WEVA 80-519;
(Judge Kennedy, November 5, 1980)
Secretary of Labor, MSHA v. Phillips Uranium Corporation, CENT 80-208-M;
(Judge Boltz, October 27, 1980)
Secretary of Labor, MSHA v. NACCO Mining Company, LAKE 80-290; (Judge
Merlin, October· 31, 1980)
Secretary of Labor, MSHA v. Ralph Foster & Sons, WEST 79-397-M; (Judge
Morris, November 20, 1980)
Secretary of Labor, MSHA v. Tazco, Inc., VA 80-121; (Judge Kennedy,
November 17, 1980)
Review was Denied in the following cases during the month of December:
Clinchfield Coal Company v. Secretary of Labor, MSHA, VA 79-98-R;
(Judge Laurenson, October 23, 1980)
Secretary of Labor, MSHA v. Hudson River Aggregates, Inc., YORK 80-13-M;
(Judge Merlin, October ·27, 1980)
Bobby Gooslin v. Kentucky Carbon Corporation, KENT 80-145-D; Petition
for Interlocutory Review.
Secretary of Labor, MSHA v. Lone Star Steel Company, DENV 79-291-PM, etc.
(Judge Stewart, November 14, 1980)

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

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

v.

...

Docket No. DENV 76-46
IBMA No. 77-10

CF&I STEEL CORPORATION
DECISION
This proceeding was initiated when CF&I Steel Corporation filed
an application for review of an order of withdrawal issued on
December 5, 1975, pursuant to section 104(c)(2) of the Federal Coal
Mine Health and Safety Act of 1969. l/ The administrative law judge

l/

Section 104(c) of the 1969 Coal Act provided:
(1) If, upon any inspection of a coal mine, an authorized
representative of the Secretary finds that there has been a
violation of any mandatory health.or safety standard, and if he
also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he
shall include such finding in any notice given to the operator
under this Act. If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance of such
notice, an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds
such violation to be also cuased by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons referred to in subsection (d) of this section, to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of t~e Secretary determines that such violation
has.been abated.
(2) If a withdrawal order with respect to any area in a mine
has been issued pursuant to paragraph (1) of this subsection, a
withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under
paragraph (1) of this subsection until such time as an inspector
of such mine discloses no siwilar violations. Following an
inspection of such mine which discloses no similar violations,
the provisions of paragraph (1) of this subsection shall again
be applicable to that mine. [Emphasis added.]

3453
J
(
'

80-12-1

granted CF&I's application for review and vacated the order, on the
ground that the Mining Enforcement and Safety Administration (MESA)
failed to prove that there had been no intervening "clean" inspection of
the entire mine, within the meaning of section 104(c)(2). MESA
appealed. JJ We affirm the judge.
The withdrawal order alleged, inter alia, that a section 104(c)(l)
withdrawal order had been issued on August 6, 1975, and that no inspection of the· entire mine had been made since August 6, 1975 which disclosed no similar violation. The judge found that MESA had conducted
two complete regular quarterly inspections of this mine between (1) July
25, 1975 and September 25, 1975 (this inspection took 23 days--19 of
''lhich were after the section 104(c) (1) order of August 6, 1975); and (2)
October 2, 1975 to December 16, 1975 (this inspection took 15 days--11
of which were prior to the section 104(c)(2) order of December 5, 1975).
Of the 38 inspection days required to complete both inspections, 30 were
in the period between August 6 and December 5, 1975. The MESA inspector
testified that he did not know whether a complete mine inspection had
occurred during those 30 inspection days, but that it was possible.
MESA argued, however, that a "clean" inspection of the entire mine
within the meaning of section 104(c)(2) occurs only when MESA conducts a
regular quarterly inspection from beginning to end after the underlying
section 104(c)(l) order has been issued. The judge disagreed stating:
The evidence presented is not sufficient to support a finding that
there has not been a complete inspection of the entire mine following the issuance of the 104(c)(l) order which disclosed no similar
violations. I cannot conclude, simply because MESA had not completed an entirely new 3 month cycle of inspections following the
issuance of the (c)(l) order, that 'there had not, in fact, been an
intervening "clean" inspection of the entire mine. [Decision at
4.]
He concluded that MESA had not presented a prima facie case to show that
a "clean" inspection of the entire mine had not occurred in the period
between the two orders.
2/ On March 8, 1978, this case was pending on appeal before the
Secretary of Interior's Board of Mine Operations Appeals under the 1969
Coal Act. This appeal is before the Commission for disposition under
section 301 of the Federal Mine Safety and Health Amendments Act of
1977, 30 u.s.c.A. §961 (1978).

34CO

We agree with the judge that a prerequisite to the issuance of an
order of w·
awal under se~ti'Oil 104 c
969 Coal Act was the
absence of an intervening "clean" ins e
entire mine,
that it was MESA s obligation to present a prima facie case of t
ac
"10 sustain the order.
·
We also agree that MESA failed to prove this prerequisite in this
case. The requirement of a clean inspection before an operator could
avoid being subjected to section 104(c)(2) withdrawal orders was intended to further public interest in promoting earnest and continuous
compliance with mandatory safety and health standards. Nothing in the
record, however, suggests that the Secretary's position--that only a
complete regular quarterly inspection can constitute a "clean" inspection of the entire mine--is necessary to achieve this interest.
Accordingly, the judge's decision is affirmed.

, Commissioner

\,\\YJJ.IO ·1,.~ ·\\O\~·J.llfil{ \\LQJ~

Marian Pearlman Nease, Commissioner

3461

Distribution
Ronald E. Meisburg, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
John F. Welborn, Esq.
Welborn, Dufford, Cook & Brown
1518 United Bank Center
Denver, Colorado 80202
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005

3462

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

December 4, 1980
GLENN MUNSEY

v.
SMITTY BAKER COAL COMP Ai.W, INC. ,
P&P COAL COMP.Ai.~Y, AND
RALPH BAKER

Docket No. NORT 71-96
IBMA 72-21

DECISION
The United States Court of App~als for the District of Columbia
Circuit remanded this case to the Col!ll!lission to consider the following
issues:
1) Whether Ralph Baker can be ordered to rehire Glenn.Munsey at
Mason Coal Company; 2) whether P&P Coal Company is a successor to the
Smitty Baker Coal Company which may be ordered to reinstate Munsey; and
3) whether P&P Coal Company, even if not a successor, may be liable
under section llO(b)(l) of the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. §801 et~· (1976) (amended 1977) ("the 1969 Coal
Act") for refusing to hire Munsey. Munsev v. FMSHRC, 595 F.2d 735, 745
(D.c. Cir. 1978).
On appeal, the D.C. Circuit affirmed the administrative law judge's
finding that Smitty Baker Coal Company and Ralph Baker violated section
llO(b) of the 1969 Coal Act. The incidents leading to the finding of a
violation of the Act's anti-discrimination provision occurred in 1971.
Since that time this case has twice reached the Court of Appeals and has
now come to the Commission to determine what remedy is due to Glenn
Munsey and who must provide i.t. In the intervening time Smitty Baker
Coal Company ceased mining operations; P&P Coal Company purchased a
lease and equipment from Smitty Baker Coal Company and opened the
former Smitty Baker No. 2 Mine; and Ralph Baker incorporated a new
mining company, Mason Coal Company, in a different location from that of
the former Smitty Bake·r Coal Company operation.
For the reasons that follow, we hold that Ralph Baker can be
ordered to reinstate Munsey at Hason Coal Company; that P&P Coal is a
successor to Smitty Baker Coal Company; and that Ralph Baker, Smitty
Baker Coal Company, and P&P Coal Company are jointly and severally
liable for the illegal discrimination against Glenn Munsey. We further
hold that P&P Coal cannot be held liable for an alleged independent act
of discrimination arising out of its asserted failure to hire Munsey.
Finally, we remand for additional findings on whether appropriate offers
of reinstatement have already been made by Ralph Baker or P&P Coal, the
amount of lost wages due to Munsey, and the costs and expenses to be
awarded.

80-12-5

3463
·--·- ··----·-·-·---·· --- -···-

- --

·-------------··~-----··

--:--.-- .......

- ... ----., ·-

I.

Ralph Baker was general manager of Smitty Baker Coal Company and
was responsible for the day-to-day operations of that company. The
Court of Appeals affirmed the administrative law judge's conclusion that
Baker violated section llO(b) of the 1969 Coal Act by refusing to rehire
Glenn Munsey on April 29, 1971.
The Smitty Baker Coal Company stopped mining operations in October,
1971, due to a strike and did not resume operations after the strike was
settled in late 1971. As of 1975, the Smitty Baker Coal Company still
had active accounts. Ralph Baker now owns all the stock of Mason Coal
Company, which began operations in May or June, 1972, in a different
location from that of the Smitty Baker Coal Company. His testimony
indicates that his authority at Mason Coal Company encompasses the
hiring of employees.
Section 110(b)(2) of the 1969 Coal Act requires a violator of
section llO(b)(l) to "take such affirmative action to abate the violation
as the [Commission] deems appropriate, including, but not limited to,
the rehiring or reinstatement of the miner •.• to his former position
with back pay." 30 U.S.C: §820(b)(2) (1976). Remedies in discrimination
cases should be suited to the individual facts of each case and designed
to eliminate the effects of illegal discrimination. International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 364 (1977);
Southern Tours, Inc. v. NLRB, 401 F.2d 629 (5th Cir. 1968). As the
Court of Appeals found, Ralph Baker illegally discriminated against
Munsey. Therefore, we must afford such affirmative relief as will best
restore Munsey to the position in which he would have been but for the
illegal discrimination. We hold that on the facts of the case reinstatement by Ralph Baker at Mason Coal Company, with such seniority and
benefits as Munsey would have had if the illegal discrimination had not
occurred, is an appropriate remedy in order to fully compensate Munsey
for the effects of the illegal discrimination he suffered.
The record, however, raises a question as to whether Baker may have
already made a suitable offer of reinstatement. Ba~cer testified in
December, 1975, that he offered Munsey employment at Nason Coal Company
"maybe a year ago, maybe not that long." In his testimony, Munsey
mentioned neither an of fer of employment from Baker nor a request for a
job at Mason Coal. No findings have been made on this issue. If a
suitable offer was made and refused, then the need to offer reinstatement now is moot. Also, the making of a suitable offer would toll the
accumulation of lost wages due to Munsey as the result of the violation.
Thus, we remand for further proceedings the question of whether Baker
has made a suitable offer to Munsey of employment at Mason Coal Company.

3464

II.

In March, 1972, approximately five months after it had ceased
operations, Smitty Baker Coal Company transferred some of its interests
in coal leases to Clyde and Charlie James Poe. The transferred coal
leases included Smitty Baker Coal Company's No. 2 mine, but did no.t
include the No. 1 mine in which Munsey had worked. Rights to certain
machines, some of which had been used in the. No. 1 mine, were transferred. The Poes subsequently renegotiated the lease with Peabody Coal
Company, the owner of the leases both before and after these transfers •.
The Pqes incorporated under the name P&P Coal Company and began mining
in March 1972. Glenn Munsey, alleging P&P Coal to be a successor
company to Smitty Baker Coal Company, moved to add P&P Coal as a
respondent in 1975. That motion was granted by the administrative law
judge. The administrative law judge found, however, .that P&P was not
liable to Munsey as a successor. The Court of Appeals remanded this
question to the Commission for consideration.
The legislative history on section llO(b) of the 1969 Coal Act
supports the conclusion that the protection afforded miners is similar
to that in·existing provisions in other labor statutes. As Senator
Kennedy stated:
My proposed amendment, then, simply puts into the Coal Mine
Health and Safety Act the same protection which we find
in other legislation.
115 Cong. Rec. 27948 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Legislative History of the Federal Coal Mine Health and Safety Act of 1969,
Part I at 667 (1975). ~In certain circumstances, the protections of
those other statutes have been construed to include the liabilit of
bona ide pure asers an other successors for their
edecessors' acts
~ iscrimination.
~-, Golden State Bottling Co., Inc. v. NLRB, 414
U.S. 168 (19/3); tr.s. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir.
1968); International Technical Products, 249 NLRB ~o. 183, 104 LR&~ 1294
(1980). We believe that in appropriate cases the successorship doctrine
should also be applied under the 1969 Coal Act.
The United States Court of Appeals for the Sixth Circuit has
enumerated several factors to be considered in determining whether under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) ~~·
(1976), a new business entity is a successor employer:
1) [W]hether the successor company had notice of the char~e, 2) the
ability of the predecessor to provide relief, 3) whether there has
been a substantial continuity of business operations, 4) whether
the new employer uses the same plant, 5) whether he uses the same
or substantially the same work force, 6) whether he uses the same or

3463

substantially the same supervisory personnel, 7) whether the same
jobs exist under substantially the same working conditions,
8) whether he uses the same machinery, equipment and methods of
production and 9) whether he produces the same product.
EEOC v. MacMillan Bloedel Containers, Inc. 503 F.2d 1086, 1094 (6th Cir.
1974). We find that these factors provide a useful framework for
resolving the question of successorship in the present case.
~ first factor to be weighed is whetber the asserted successor>
Coal Company, had_notice of the charge of discrimination and
~si
· · ·
a t e time o its acquisition o t e pre ecessor s
.2_usiness operations. The administrative law judge found that the ovmers
of P&P and represeuta~ives of Smitty Baker Coal Company did not discuss
-Munsey's discrimination complaint during the negotiations on the
transfer of the lease. The administrative lai; judge also found that one
of the owners, Charlie James Poe, knew generally that there was a dispute, but did not know that it involved an alleged discriminatory discharge. The judge concluded, "P&P Coal acquired its interest in this
company with no knowledge that applicant [sic] was liable to applicant
for a discriminatory discharge."

The administrative law judge erroneously relied on knowledge of
liability, rather than notice of proceedings which could lead to
liability, in reaching his conclusion that P&P Coal is not a successor
to Smitty Baker Coal Company. See Slack v. Havens, 522 F.2d 1091 (9th
Cir. 1975); U.S. Pipe and Found~Co. v. NLRB, supra. P&P admitted in
its answer to Munsey's motion to add it asa-respondent "that it was
aware of the litigation between the applicants and Smitty Baker Coal
Company." Further, an administrative law jud?,e had issued a decision on
February 29, 1972, in which he found Smitty Baker Coal Company liable to
Munsey for reinstatement, back pay, and costs including attorney's fees.
P&P had sufficient notice to enable it to protect itself by either an
indemnification clause or a lower purchase price in the takeover agreement. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 185 (1973).
P&P also presented evidence on the question of its successorship. P&P
clearly had sufficient notice of the litigation between Munsey and
Smitty Baker Coal Company to be held liable for back pay and reinstatement
if other facts of this case show P&P to be a successor.
abilit of t~e predecessor to provide relief is the second
ta he cnnsidere .
n
, issued in 1976, the administrative law judge found that Smitty Baker Coal Company's accounts
"remain active and there is still money in them." He did not make a
finding regarding the amount of money in the accounts. Assuming that
funds sufficient to cover the monetary award due to Munsey are in the
accounts, the question of reinstatement for Munsey remains. Munsey will
not be made whole. unless he also is offered "reinstatement ••• to his
former position." 30 U.S.C. §820(b)(2). Smitty Baker Coal Company, the
predecessor, no longer is active in minin~ operations and can not
reinstate Munsey. Thus, in the present case the predecessor can not
provide complete relief.

~ctar

3466

~~~~~C_o_.,

247
relied heavily.on this factor in John Wilev & Sons, Inc. v. Livingston,
376 U.S. 543, 551 (1964), in which it held that the disappearance of a
corporation by merger did not necessarily terminate the rights of
employees under a collective bargaining agreement, and that a successor
could be compelled to arbitrate. 1/ The Court stated:
Although Wiley [the alleged successor] was substantially
larger than Interscience [the predecessor], relevant
similarity and continuity of operation across the change
in ownership is adequately evidenced by the wholesale
transfer of Interscience employees to the Wiley plant,
apparently without difficulty.
376 U.S. at 551. This emphasis on the continuity of the workforce was
reaffirmed in Howard Johnson Co. v. Hotel Employees, 417 U.S. 249
(1974). The Court, distinguishing its decision in John Wiley & Sons,
supra, noted that Howard Johnson Co., whom the Court found not to be a
successor, selected and hired its own work force and employed very few
of its predecessor's workers. 417 U.S. at 259-260.

The administrative law judge found that "many" of the miners hired
by P&P were not former Smitty Baker Coal Company employees; however,
Charlie James Poe, president of P&P, testified that, needing experienced
miners, he asked Ralph Baker if P&P could hire Baker's former employees.
With Baker's agreement, P&P hired the Smitty Baker Coal Company employees according _to the Baker senority list without any screening.
While the percentage of former Baker employees in the P&P workforce is
unclear from Poe's testimony, it was at least 50 percent and possibly as
high as 70 percent. ];./ P&P's testimony indicates that it would have
hired Smitty Baker employees exclusively if they had been available.
Thus, we find that the composition of the work force remained sub~
stantially the same.

1./

Analysis of cases determining the bargaining obligations of successor employers does not differ significantly from that of cases
concerning the obligation to remedy the effects of the predecessor's
illegal discrimination.
];_/ Poe testified:
Approximately how many employees did you have there during the
first month of operation?
A.
I believe we finally wound up with twenty-four I believe
the first month and ten.
Q.
How about the second month?
A.
That was probably it for a while. I'm afraid to say
unless I went back to the records. I believe fifteen of
those men were taken directly from Mr. Baker's seniority
list and two of them were his bookkeeper and Fred Coburn
were company men which I retained. That made seventeen
in all you see. I believe that's right.
Transcript at 407-408. From this testimony, it is unclear whether Poe
had 24 or 34 employees during the first month of operation.

3467

In determining whether there has been substantial continuity of the
employing industry, the NLRB has considered additional factors including
the existence of a hiatus between the closing of the business and the
reopening by an alleged successor. Mondavi Foods Coro., 235 NLRB 1080,
98 LRR...~ 1102 (1978); Radiant Fashions, Inc., 202 NLRB 938, 82 LR~! 1742
(1973). In Radiant Fashions, the Board characterized a three month
hiatus a's "lengthy", and viewed it to be a "significant" though not
"controlling" factor in determining whether there had been a substantial
continuity of business operations. In the present case, there was about
a five month hiatus between the cessation of the active Smitty Baker
operation and the opening of P&P Coal. At least the first month of this
gap is attributable to a mine strike, and should not necessarily be
counted as an interruption of business operations.
The remaining factors discussed in MacMillan Bloedel concern the
degree of identity between the former employer and the alleged successor.
The first inquiry is whether the same plant is used. The specific mine
in which Munsey worked was not operated by P&P. P&P reopened another
mine operated by the Smitty Baker Coal Company, the No. 2 mine. P&P
emphasizes that it did not work the mine where the controversy arose and
that it leased approximately 3,500 acres from Peabody Coal Company
whereas Smitty Baker Coal had only leased 300 acres. However, P&P first
contracted to. take over Smitty Baker Coal's leases and later renegotiated
the lease with Peabody Coal.
er inquir is not whether P&P took
over the actual locus of.the dispute, but whether it substan ia y
Baker oa
ompany s operations. P&P took ove
. e
Smitty Baker Coal Company's Peabody ease an
one of its mines.
P&P used equipment that it had purchased from Smitty Baker and that
Smitty Baker had used in its operation.· We find that P&P Coal Company
operated the substantial equivalent of the Smitty Baker Coal Company,
"plant." See Mondavi Foods Corp., supra.
Regarding the continuity of supervisory personnel, the record
indicates that P&P hired a section foreman of Baker Coal who became
P&P's mine superintendent. P&P also hired Smitty Baker's bookkeeper as
its bookkeeper. Additional infornation as to the supervisory personnel
of P&P is lacking in this record.
Use of the Smitty Baker Coal Company senority list and retention of
collective bargaining representatives indicate that the same jobs and
working conditions probably continued. There is no evidence comparing
production methods of the two companies. The same product, coal, was
produced.
We recognize that the resolution of any question concerning
successorship involves "striking a balance between the conflicting
legitimate interests of the bona fide successor, the public, and the
affected employee." Golden State Bottling Co. v. NLRB, 414 U.S. at 181.
After careful consideration of all the circumstances of this case, we
conclude that the purposes of section llO(b) of the 1969 Coal Act are

34€3

Glenn Munsey
NORT 71-96

Distribution
J. Edward Ingram, Esq.
Fowler & Robertson
Seventh Floor
First Tennessee Bank Building
Knoxville, Tennessee 37902
Stephen B. Jacobson
Adams, Duque & Hazeltine
523 West Sixth Street
Los Angeles, CA 90014
Thomas A. Mascolino, Esq.
Office of the Solicitor
Department of Labor
4015 Wilson Boulevard
Suite 400
Arlington, VA 22203
Joseph E. Wolfe, Esq.
Earls, Wolfe & Farmer
P. O. Box 196
Norton, VA 24273
Administrative Law Judge Forrest E. Stewart
Office of the Administrative Law Judge
5293 Leesburg Pike, 10th Floor
Building 2
Falls Church, VA 22041

3471

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

December 9, 1980

LOCAL ~ION 1957, UNITED MINE
WORKERS OF AMERICA,
David Biggs, et al.
Docket No. VINC 77-112

v.
SOUTHERN OHIO COAL COMPANY
DECISION
This discrimination case arises under the Federal Coal Mine Health
and Safety Act of 1969' 30 U.S.C. §801 et~· (1976)(amended 1977).
The issue is whether six miners 1/ were discriminated against by their
employer, Southern Ohio Coal Company, in violation of section llO(b)(l)
of that Act. ]:./
The administrative law judge found that a large body of water
existed in the miners' route to their workplace in the entry at the end
of a mantrip; that the miners believed the route was unsafe, complained
to mine management about it, and refused to cross it ]./; and that their
shift foreman denied them alternate work, which was available, because
he believed they were not entitled to refuse to cross the water to work
on their regular jobs. The judge ruled that there was no violation of
the Act, since the evidence did not establish that these miners were
denied alternate work by their employer because of the miners' safety
complaints. !:_/
!_/ The miners' names are David Biggs, Thurmond Adkins, Ruler M. Champe,
Curtis Chaney Jr., Donald A. Hunter, and Chester Young.
];./ Section llO(b)(l) provides in part:
No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or any
authorized representative of miners by reason of the fact that such
miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger ***·
ll "The record is clear that Applicants' request for their safety
committeeman arose out of genuine concern over a safety condition, and
was not the outgrowth of some general labor dispute with management."
J.D. 13.
4/ The judge stated that "whether such actions were discriminatory
depends on whether Respondent was motivat~d by a desire to retaliate
against applicants for their reporting of safety complaints •••• " J.D.
14. (emphasis added).

We have difficulty at arriving at the conclusion reached by the
judge in light of the evidence and the judge's own findings. The
foreman's testimony is clear that the reason he denied the miners
alternate work was because they had refused to cross the water to
perform their regular jobs. 2_/ The judg~ found that this refusal by the
miners was reasonable and in good faith. J.D. 7, 8, 11. 6/ The Union
argues that the miners' actions in these circumstances were protected
under section 110. We agree. Alternate work was available, was
requested, and was denied because the miners refused to work in conditions they believed were unsafe. The miners' actions were protected
by section 110 and the foreman's refusal to afford them alternative work
violated that section.
Accordingly, the decision of the administrative law judge is
reversed and remanded to determine the amounts of back pay and any other
relief owed to the miners.

5/

J.D. 14-15, citing Tr. 819-820.
So too was the miners' refusal to take other routes, which they also
believed were unsafe. Id.

""'§./

3473

Distribution
D. Michael Miller, Esq.
Adele E. O'Conner, Esq.
Alexander, Ebinger, Holschuh, Fisher & McAlister
17 South High Street
Columbus, Ohio 43215
for Southern Ohio Coal Co.
Abraham Pinsky, Esq.
Pinsky, Barnes, Watson, Cuomo & Hinerman
.800 Main Street
Wellsburg, West Virginia 26070
for UMWA
Harrison Combs, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C. 20005
Administrative Law Judge Michael A. Lasher
Office of Administrative Law Judges
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

3474

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

December 10, 1980
SECRETARY OR LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. DENV 79-1-P

v.
CO-OP MINING COMPANY
DECISION

On October 16, 1979, the administrative law judge issued a decision
and order approving the proposed penalty settlement of the parties with
respect to an alleged violation of 30 C.F.R. §70.250(b). ±./ The approval
was based upon a stipulation of settlement prepared by the parties. The
Secretary alleged that Co-op had failed to submit a respirable dust
sample for one miner whom the Secretary identified by his social
security number, 528-96-5108.
The parties stipulated that Co-op's records indicated the company
never employed a miner with that social security number. They al$o
stipulated that Co-op did employ a miner with the social security number
528-96-5109, and that the required dust sample had been submitted for
that miner. These stipulated facts were quoted by the judge in his
decision and order, which we directed for review sua sponte.
We hold that under the circumstances in this case, the settlement
should not have been approved.
The parties' stipulation· shows that the
alleged violation did not occur. The legislative history of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III
1979), states, "The purpose of a civil penalty is to induce those
officials responsible for the operation of a mine to comply with the Act
and its standards." 1:../ To assure this purpose is served section llO(k)

!/

30 CFR §70.250(b) provides:
One sample of respirable dust shall be taken from the mine
atmosphere to which each individual miner assigned to a working
section is exposed at least once every 120 days, except those
miners already sampled during such 120-day period in sampling
cycles conducted under the provisions of §§70.210, 70.220, and
70.230 of this part.
?J S. Rep. No. 95-181, 95th Cong., 1st Sess. 41 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th., Cong.,
2d Sess., Legislative History of the Federal Mine Safety and Health Act
Jf 1977, at 629 (1978).

3475

80-12-12

of the Mine Act places an affirmative duty upon us to oversee settlements.· Compliance with the Act and its standards is not fostered by
payment of a civil penalty where the stipuiated facts establish that no
violation occurred. Accordingly, the notice of violation is vacated,
the order approving the settlement and ordering payment is reversed, and
the proceeding is dismissed.

Marian Pearlman Nease, Commissioner

3476

Distribution
James Abrams, Esq.
U.S. Department of Labor
Office of the Solicitor
15019 Federal Office Building
Denver, Colorado 80202
Carl E. Kingston, Esq.
53 West Ailgelo Avenue
Salt Lake City, Utah 84115
Thomas Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22204
Honorable George A. Koutras
Office of Administrative Law Judges
5203 Leesburg Pike, 10th Fleer
Falls Church, Virginia 22041

3477

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

December 19, 1980

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

v.

Docket No. HOPE 78-722-P

ALLIED CHEMICAL CORPORATION
DECISION
This civil penalty proceeding arises under section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq.
(Supp. IH 1979) ("the Mine Act"). 1./ In his decision, the administrative law judge concluded that Allied Chemical Corporation (Allied) had
not violated 30 CFR §75.1404 as alleged by the Secretary of Labor, and
dismissed the Secretary's petition for assessment of civil penalty. For
the reasons below, we remand to the judge for further proceedings.
Certain facts are undisputed. On September 8, 1977, while hauling
loaded mine cars in Allied's Shannon underground mine, the trolley harp
assembly supplying electrical power to the locomotive became disengaged.
The motorman was unable to control or stop the locomotive, which subsequently derailed. Both the brakeman and the motorman jumped from the
moving locomotive before the derailment. The brakeman was killed and
the motorman was injured.
A withdrawal order was issued to Allied on September 9, 1977,
alleging a violation of the mandatory standard at 30 CFR §75.1404.
order stated:

The

):_/
The inspector issued the withdrawal order at issue on September 9,
1977, pursuant to section 104(a) of the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. §801 et~· (1976) ("the Coal Act"). The
Secretary filed his petition for assessment of civil penalty on August 29,
1.978, after the effective date of the Mine Act. Thus, while the violation
occurred under the Coal Act, these proceedings arise under the Mine Act.

3478

80-12-15

The pneumatic braking system on the ••• locomotive ••• was not
sufficient to control a trip of 28 loaded mine cars which were
involved in a run-a-way trip. The brake shoes were not properly
aligned with the trucks [locomotive wheels] and could not ap~ly
uniform frictional pressure on the braking surface ••••
Allied contested the order and a hearing was held before the
administrative law judge. In his decision the judge concluded that the
locomotive in question had a dual braking system "installed." 'l:/ He
further concluded that the Secretary had not proven that the locomotive
was being operated outsi~e its design capabilities, or had been operated
at excessive speed. The Secretary filed a petition for discretionary
review, which we granted in part. 3/ The issue before us on review is
whether the judge correctly interpreted and applied 30 CFR §75.1404.
The standard at issue provides:
§75.1404 Automatic brakes; speed reduction gear.
[Statutory Provisions]
Each locomotive and haulage car used in an
underground coal mine shall be equipped with
automatic brakes, where space permits. Where
space does not permit automatic brakes, locomotives and haulage cars shall be subject to
speed reduction gear, or other similar devices
approved by the Secretary, which are designed
to stop the locomotives and haulage cars with
the proper margin pf safety.
§75.1404-1 Braking system.
A locomotive equipped with a dual braking
system will be deemed to satisfy the requirements of §75.1404 for a train comprised of such
locomotive and haulage cars, provided the locomotive is operated within the limits of its
design capabilities and at speeds consistent
with the conditions of the haulage road ••••

J:./

The parties agree that a dual braking system consists of a dynamic
or electric brake system and a pneumatic or service brake system.
11 In his petition for discretionary review, the Secretary also
assigned as error the judge's conclusion that he had not established by·
~preponderance of the evidence an adverse effect on the locomotive's
braking capacity caused by misaligned brake shoes. However, under the
authority of section 113(d)(2)(A)(i) of the Mine Act, 30 U.S.C. §823
(d)(2)(A)(i), we declined to direct that issue for review.

3479

Allied argued before the judge, and argues before us, that to
comply with the cited standard a locomotive merely has to have a dual
braking system installed, and that the standard is not directed at the
operability of the system. In Allied's words, the standard establishes
"design" criteria and does not impose "maintenance" requirements. In
our view the judge's resolution of this issue is ambiguous. At the
conclusion of his decision, the judge appears to accept Allied's interpretation, but in other portions of his decision he apparently considered the operability of the braking system. To resolve any doubts,
we hold that 30
R §75.1404-1 requires that a dual brakin system be
oth present and operable.
us, a violation of the standard can be
establis e
y
ving that a locomotive is not equipped with an operable dual braking system. The standard can also be violated if the
locomotive is operated beyond its design capabilities or at speeds
inconsistent with haulage road conditions.
We believe that any other result would be contrary to the remedial
intent of the Coal Act, the Hine Act, and this standard, as well as
connnon sense. 30 CFR §75.1404 restates section 314(e) of the Coal Act.
30 CFR §75.1404-1 merely establishes a permissible alternative to the
automatic brakes required by the statutory provision. Section 314(e) in
turn reiterates section 214(e) of S. 2917, the Senate version of the
Coal Act, and is quite similar to the House version. The Senate Report
stated: "This provision will reduce, substantially, the number of
haulage collisions that are responsible for many accidents." 4/ The
House Report stated that section 314(e) "requires automatic brakes,
speed reduction devices, or other safeguards ..• to be certain that the
equipment can be stopped promptly." 2/ Where Congress indicated in such
unequivocal terms that its objective was to stop equipment promptly in
order to prevent accidents, it could not have intended merely that
locomotives be equipped with dual braking systems, and have been indifferent to whether the brakes were operable. If brakes are to stop a
locomotive promptly, it is axiomatic that, once installed, they must be
operable.
We turn now to the question of whether the judge properly applied
the standard in this case. The judge found that "the failure of the
locomotive brakes to function was due to the unexpected loss of power
caused by the loss of the trolley harp assembly, which in fact resulted
in the unanticipated loss of braking air pressure due to the loss of
electrical power." The judge found "no indication that the •.. operator

!±_/
S. Rep. 91-411, 9lst Cong., 1st Sess. at .82 (1969); reprinted in
Senate Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, Part I at 208 (1975) ["Legis. Hist."].
~/
H. Rep. 91-563 at 55; Legis. Hist. at 1085.

3480

experienced any difficulties in negotiating the grades traveled on the
very day of the accident ••. or that he experienced any difficulty in
braking and controlling the locomotive .•. ," but that his difficulties
began when the loss of power "incapacitat[ed] all of the locomotive
br:ake systems."
The Secretary submits that the judge's finding, that the brakes
failed because of a loss of electrical power, is contrary to the evidence. He submits that of the three possible causes of the locomotive's
brake failure, the judge considered only two: operator error and loss of
power. In attributing the brake failure to the latter, he did not
consider the third possible cause, systemic failure. The Secretary
bases his assertion on the apparent failure of both portions of the
pneumatic brake after the loss of the harp assembly. He contends that
notwithstanding the loss of electricity, a single application of the
primary pneumatic component should not have exhausted the air supply;
the pneumatic brake should have stopped the locomotive. Even if the
primary pneumatic component failed, "the loss of electrical power cannot
rationally explain the failure of the truck emergency component to stop
the locomotive •.•. " He emphasizes that the truck emergency brake does
not rely on electricity and is innnune to air demands of other equipment.
Therefore, the only logical explanation for its failure to stop the
locomotive after the primary pneumatic brake failed to do so, is that it
was defective. The Secretary contends that "[s]ubsequent testing confirmed that the truck emergency [brake] was defective," because the
brakes failed in three surface tests conducted on level ground. Citing
the testimony of Allied's expert witness, the Secretary submits further
that because the truck emergency brake is an integral part of the
pneumatic system, any defect in it meant that the pneumatic system was
defective. Therefore, in the Secretary's view, the locomotive was not
equipped with an operable dual braking system as 30 CFR §75.1404-1
requires.
In sum, the Secretary contends that the judge's analysis is flawed
because the loss of electricity does not adequately explain the failure
of the dual braking system. In the Secretary's view.the primary
pneumatic brake should have had sufficient air, even without electricity,
to stop the locomotive on nearly level ground. Once the primary pneumatic
brake failed, he believes that an operable truck emergency brake, as
part of the dual braking system, with its independent air supply, should
have stopped the locomotive.
Allied contends that it was in compliance with 30 CFR §75.1404: "A
dual braking system was present and the locomotive was operated within
design capabilities and at speeds consistent with the haulage road
conditions." Allied rejects the Secretary's argument that the truck
emergency brake is a part of the pneumatic system, was inoperative and
therefore that the pneumatic braking system was deficient. Allied cites
the testimony of its expert witness that the truck emergency brake is
independent of the dual braking system. It comµares the technical
expertise of that expert witness to the "speculative opinion testimony"
of the allegedly untrained MSHA inspector, urging the correctness of the
judge's reliance on the former.

3481

Allied asserts further that the Secretary introduced no evidence to
demonstrate that the truck emergency brake was inoperable. It argues
that the surface tests to which the Secretary refers involved bleeding
off pressure in the main reservoirs, not in the truck emergency brake.
Allied submits that this demonstrated nothing about the truck emergency
brake, which would have required 24 hours to replenish its air supply.
In conclusion, Allied asserts that the Secretary failed to demonstrate
that the truck emergency brake was part of the pneumatic system or that
it was inoperable. Allied submits that the judge considered the truck
emergency brake and all other possible causes of brake failure, and that
the judge properly determined that the loss of electrical power was the
sole cause of the failure.
30 CFR §75.1404-1 permits a locomotive to be equipped with a dual
braking system as an acceptable alternative to the automatic brakes
mandated by 30 CFR §75.1404. Neither the regulation nor the legislative
history of section 314(e) of the 1969 Act (which §75.1404 restates)
defines a dual braking system. The parties appear to agree that a dual
braking system consists of a dynamic braking system and a pneumatic
braking system. They also agree generally as to the operation of at
least the primary pneumatic brake. They disagree, however, on what
constitutes the pneumatic braking system, and whether the truck
emergency brake is part of the pneumatic braking system. They disagree
further as to whether the truck emergency brake was operable. The
ensuing controversy colors the entire case.
Although the judge found that "the locomotive had a dual braking
system installed •.. ,"he did not explicitly determine what constituted
the pneumatic portion of the dual braking system. We believe that the
judge should have made explicit findings as to whether the truck
emergency brake and its air supply were part of the pneumatic braking
system. The failure to determine whether the truck emergency brake was
part of or independent of the pneumatic braking system leaves unanswered
the major factual issue in this case, whether the dual braking system
was operable. If the truck emergency brake were found to be part of the
pneumatic system, questions remain as to whether it was operable in
these circumstances and could have supplied air to the brake cylinders
after the main air supply was depleted. We also believe that the loss
of the harp assembly does not explain the total breakdown of the dual
braking system. The loss of the harp assembly should have caused the
complete failure of only the electrically-powered dynamic brake. The
other component of that dual braking system, the pneumatic braking
system, is not fully dependent upon electricity. Electricity powers the
compressor to maintain adequate air supply. If operable, it should have
continued to function at least until the air supply in its tanks was
exhausted; the loss of electricity would merely have prevented the
replenishing of that air supply.

3482

'
j

Therefore, we remand to the judge for further proceedings.
Specifically, we remand for a finding as to whether the dual braking
system was operable. In order to make this ultimate finding, findings
are also necessary on why the primary pneumatic brake failed to stop
the train after the electricity was interrupted; whether the truck
emergency brake is part of the pneumatic portion of the dual braking
system; and, if so, why it failed to stop the train.

A. E. Laws{l/Commissioner
\

~ \\ 11, ·1 I j 1 \i .- \·' 1~\)ll.,(,l
f\, • .1\\'0.:!~
\ '' '>\ ~ r

'"'\\'i~J,i..J).. ,,.,
'71

.'I\ 1

Marian Pearlman Nease, Commissioner

3483

Allied Chemical Co.
HOPE 78-722-P
Distribution
William B. Moran, Esq.
Trial Attdrney
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Lee. F. Feinberg, Esq.
William T. Brotherton, III, Esq.
Spilman, Thomas, Battle & Klostermeyer
1101 Kannwha Banking & Trust Bldg.
Charleston, West Virginia 25301
Administrative Law Judge George A. Koutras
Office of Administrative Law Judges
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Building 2
Falls Church, Virginia 22041

3484

Administrative Law Judge Decisions

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

DEC

r 1seo
Civil Penalt~ Proceeding

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

v.
A. H. SMITH STONE COMPANY,
Respondent

Docket Ne. VA 80-2-M
Assessment Control
No. 44-02965-05005F
Louisa Quarry and Mill

DECISION
Appearc~ ..... es:

Barbara Krause Kaufmann, Attorney,. Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
A.H. Smith, Jr., and Wheeler B. Green III, Branchville,
Haryland, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued August 28, 1980, a hearing in
the above-entitled proceeding was held on October 21, 1980, in Falls Church,
Virginia, under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence, I
rendered the bench decision J::./ which is reproduced below (Tr. 101-114):
This proceeding involves a Petition for Assessment of
Civil Penalty filed in Docket No. VA 80-2-M on November 8,
1979, by the Secretary of Labor, seeking to have a civil
penalty assessed for an alleged violation of 30 C.F.R.
§ 56.11-1.
The issues in a civil penalty case are whether a violation occurred and, if so, what civil penalty should be

Y

A petition seeking review of my bench decision was filed with the
Commission by respondent on November 21, 1980. Since I had not yet issued
my decision in final form, the official file was still in my office. Therefore, the petition was routed to me so that it could be placed in the official file.

3486

assessed based on the six criteria set forth in section
llO(i) of the Federal Mine Safety and Health Act of 1977.
I shall make some findings of fact on which my decision will be based. I shall set them forth in enumerated
paragraphs.
1. A. H. Smith Stone Company, according to a stipulation ·of the parties, had 163,693 man-hours in 1979. The
company operates the facility which is involved in this
proceeding, namely, the Louisa Quarry and Mill which is
located in Louisa County, Virginia. The man-hours worked
at that particular facility in 1979 were 47,586.
The parties have stipulated that the company is subject to the provisions of the Act.
2. On January 25, 1979, Mr. James H. Whalen, the
operator of the crusher at the Louisa Quarry and Mill was
found head first in the primary crusher, resulting in his
death before he could be extricated from the crusher.
On January 26, 1979, the day after the fatality
occurred, several people made an investigation of the
accident. The only person representing MSHA during
that inspection who testified here today was Inspector
Charles W. Quinn. He stated after he had examined the
feeder at the site where Mr. Whalen was killed, that he
had concluded that there was not a safe means of access
to and from the feeder.
For that reason, he wrote Citation No. 301536, dated
January 26, 1979, alleging
violation of section 5·6.11-1,
which provides that a "[s]afe means of access shall be provided and maintained to all working places."

a

3. There were a number of photographs introduced into
evidence in this proceeding. They are essential for an
understanding of the area where the victim was killed and
also of the physical layout of the facility where Inspector
Quinn felt a violation of section 56.11-1 had occurred.
Some of these exhibits were introduced by Inspector
Quinn and some by the' company. All the photographs have
been very helpful in showing the situation which existed.
Exhibit No. 4-A shows how a person who is 5'8" tall would
have to proceed and how he would have to move his body in
order to get out of the feeder in the vicinity of the
control booth from which the crusher is operated.

3487

4. Exhibit No. 4-D is a very close-up picture of the
exact area where a person would have to stand if he wanted
to get out of the feeder. That picture indicates that an
individual leaving the feeder would have to stand on what
is known as a "grizzley," which consists of 4-inch wide
metal strips with an opening between them of about
6 inches.
Although the witnesses, or at least Mr. Christopher, who
was a witness for the respondent, indicated that the grizzley
is 5 feet long, a person coming out of the control booth, or
going into it from the feeder, is considerably closer to the
terminal end of the grizzley on the side of the crusher than
,5 feet, according to Exhibit No. 4-D.
5. Exhibit No. A-6 shows a good view of the grizzley at
the site where a person would be if he wanted to go out at
the control booth and it is especially obvious that a person
stepping up from the feeder would be steppin~ up, from an
insecure footing, a distance of 2 feet.
6. Exhibit No. A-10 is a close-up view of the feeder
and control booth after.a handrail was installed near the
control booth and after a step was made toward the top of
the feeder. Those improvements were made in order for the
company to abate the violation alleged in Citation No. 301536.
7. Ms. Kaufmann correctly stated in her remarks that no
one knows for sure what caused Mr. Whalen to fall into the
crusher, but we do have the testimony of Mr. Christopher who
was the person who last talked to Mr. Whale·n before his death.
Exhibit No. A-4 shows the end of the feeder farthest from the
control booth and, according t·o Mr. Christopher's testimony,
Mr. Whalen, the victim, was standing in the feeder about
3:50 p.m. when Mr. Christopher last talked to him. That was
on January 25, 1979. At that time, Mr. Christopher told
Mr. Whalen an explosive charge would be set off in the quarry
and that Mr. Whalen should shut off the crusher and could
leave for the day after he had finished cleaning the feeder
which was almost entirely free of residue at that time.
8. When Mr. Christopher had returned to the area of the
feeder after obtaining the detonating equipment for setting
off the blast, he realized that Mr. Whalen was not in sight
at any of the places where he normally saw him at that time
of day. Consequently, he made a search for Mr. Whalen and
eventually found his body in the crusher with his head foremost into the crusher and his legs sticking out the top. At
that time, Mr. Whalen was already dead.

3488

9. When Mr. Christopher talked to Mr. Whalen at
3:50 p.m., the feeder was not operating but the crusher was.
At 3:50 p.m., the feeder still had rock in it which needed
to be transported by the feeder into the crusher. When
Mr. Christopher returned around 4:00 or 4:05 p.m. to the
vicinity of the feeder, the material in the feeder had been
discharged into the crusher, but the crusher was still
running.
10. The inspection report written by MSHA's investigators was received into evidence as Exhibit F. That report
indicates on page three that Mr. Whalen was an epileptic and
that he was normally taking phenobarbitol to counteract his
illness and an analysis of his blood showed a rather high
concentration of aprobarbital.
Despite the fact that Mr. Whalen had been under a
doctor's treatment for his problem, Mr. Christopher worked
with him for approximately 8 years without noticing that
Mr. Whalen had any problems in the form of dizziness or
slurred speech or any indication he had an abnormal condition _of any kind. Mr. Christopher did not observe any
unusual physical attributes about Mr. Whalen at 3:50 p.m.
on January 25, 1979, when Mr. Christopher last talked to
Mr. Whalen before his death.
I believe that generally summarizes the facts in this
case.
As I have indicated in the findings, the feeder was not
equipped with any type of step or handrailing to assist a
person who had been working in the feeder to get out of the
feeder once he had finished that work.
The testimony indicates that it was "the practice,
especially in the wintertime, to clean out the feeder during
every shift because the materials in the wintertime had a
tendency to cling around the top of the feeder.
While there is no doubt in my mind that a person with
secure footing could step up a distance of 2 feet, or
2-1/2 feet if you include the angle into the control booth
that was discussed by Inspector Quinn, the fact remains that
anyone getting out of the feeder has to do so by standing on
top of the grizzley and, as I have indicated in my findings,
his footing would not be very stable.
It is undoubtedly true that Mr. Whalen had been down in
that feeder and had cleaned in it for many years because he
worked for the company from February 4, 1970, until his death

3489

on January 25, 1979. Nevertheless, the evidence shows that
without any handhold or anything to assist a person who was
stepping up out of the feeder, there was certainly a hazard
involved in not having any facilities whatever to assist a
person coming out of the feeder. Therefore, I find that a
violation of section 56.11-1 occurred because a safe means
of access into and out of the feeder had not been provided.
Having found that a violation occurred, it is necessary
for me to assess a penalty based on the six criteria.
The first criterion is the size of respondent's business.

As to that matter, I have indicated in paragraph one .of my
findings that the company had total man-hours of operation
of 163,693. That places the company in a moderate range of
size. Therefore, any civil penalty to be assessed in this
case will be or should be in a moderate range of magnitude,
insofar as the size of respondent's business is considered
as one of the criteria.
There was introduced with respect to the criterion of
history of previous violations Exhibit No. 5. That exhibit
shows that there have been two previous violations of section 56.11-1 by the company. It has always been my practice
to increase a penalty otherwise assessable under the other
five criteria by a specific amount if I find existence of
an unfavorable history of previous violations. Exhibit No. 5
shows that two previous violations occurred sometime between
January 27, 1977, and January 26, 1979. I find that two violations in that length of time should be considered as somewhat unfavorable and therefore whatever penalty is assessed
in this case will be increased by $50 under the criterion of
history of previous violations.

As to the criterion of the operator's ability to continue in business, there was no testimony given on that subject. The former Board of Mine Operations Appeals held in
Buffalo Mining Company, 2 IBMA 226 (1973), and in Associated
Drilling, Inc., 3 IBMA 164 (1974), that if a company puts on
no evidence showing its financial condition, that a judge may
presume payment of penalties would not cause it to discontinue
in business. Therefore, I find that payment of penalties
will not cause A. H. Smith Stone Company to discontinue in
business.
The next criterion to be considered is the question of
whether the operator demonstrated a good faith effort to
achieve rapid compliance after the citation was written.
The inspector terminated the citation on January 30, 1979.

3490

The citation was written on January 26, 1979. He has indicated that he felt the company showed a normal good faith
effort to achieve rapid compliance. I find that the evidence supports that conclusion. When I find that a company
has made a normal good faith effort to achieve compliance,
I neither increase nor decrease a penalty otherwise assessable under the other criteria.
'Ille remaining two criteria, that is, gravity and negligence, are the ones that affect the penalty the most
severely. The first consideration is the degree of negligence involved in this particular violation. I think in
connection with that criterion, it is worthwhile to note
that the inspector had made a previous examination of the
crusher at the Louisa Mill and had not noticed this particular hazard. I can understand why an inspector would
not see everything that might be hazardous around the
crusher on his first inspection. The inspector did indicate that he had been in this part of the facility and it
did not occur to him at that time that this was a particularly hazardous area and he did not write a citation for
a violation of section 56.11-1 at that time.
Nevertheless, when one does examine the area of the
feeder from the standpoint of the photographs which I have
discussed in my findings, one reaches the inescapable conclusion that the operator was at least guilty of a normal
amount of negligence in not having put any kind of provisions
here for a person to grab when he is trying to get in or out
of the feeder, particularly since Mr. Christopher has indicated the feeder has to be cleaned out rather constantly
during cold weather. Therefore, I find that there is a
moderate amount of negligence involved in this case.
The final criterion I have to consider is the question
of gravity. Gravity gets back to the question of whether
the failure to provide a safe means of egress, specifically
a step and a handhold for getting up out of the feeder, was
the direct cause of the person's death in this instance. In
a general situation, the question would be how serious a fall
from the side of this feeder would normally be. The diff icul ty with making that finding in this case is associated
with the fact that there was no eyewitness who saw Mr. Whalen
fall, if he did fall, and there is no one who can say for
certain that the medication he was taking had no bearing upon
the fact that he was found in the crusher.
The inspector and Mr. Christopher have been unable to
explain satisfactorily why a person, assuming he did slip in
trying to get out of the feeder, would not only have fallen

3491

backwards but also would have further slid into the opening
to the crusher. There was a distance of at least a couple
of feet from the place where he would have fallen to the
point where he would have started down into the crusher.
Another part of the problem in assessing gravity in this
instance gets to the fact that when Mr. Christopher was talking to Mr. Whalen at 3:50 p.m., the feeder was not running.
When Mr. Christopher next came back to the feeder, it still
was not running but all the material that had been thrown
down by Mr. Whalen onto the feeder had been transported by
the feeder into the crusher and the feeder was empty of any
material.
The foregoing facts support a conclusion to the effect
that Mr. Whalen at least successfully got out of the feeder
and turned it on in order to eliminate the materials that
were in it. Inspector Quinn's belief that Mr. Whalen
slipped while trying to get out of the feeder and fell backwards and rolled into the crusher, is really not supported
by the facts because, once Mr. Whalen got out of the feeder
and turned it on, there is no reason that we know of, based
on the facts in this case, that he would have gotten back
down into the feeder • . We simply do not have any evidence
to show for certain that failure to have a step and a handhold. for a person to come out of the feeder was the direct
cause of Mr. Whalen's death in this case.
Since we do not have any way to show the exact cause of
death, and the inspector's accident report, Exhibit F, so
indicates on page three, I can only find on the evidence in
this case that the violation was moderately serious and would
not normally be.expected to result in a person's death.
There is one aspect of the evidence which does make this
feeder and its lack of facilities to help a person get out of
it serious, and that is, up until this accident occurred,
Mr. Whalen was cleaning out the edges of the feeder while
keeping the crusher in operation. That practice meant if
anyone should fall into the crusher while cleaning out the
feeder, his death was more likely than if the crusher had not
been operating.
According to Mr. Christopher, after the accident, the
company has discontinued that practice and now turns of~ both
the feeder and the crusher at the time that a person is down
in the feeder cleaning it out.
At the time this particular accident occurred, the
company was engaging in a kind of operation which was less
safety-oriented than it is now.

3492

__ /

The lack of· a means of egress, a safe means of egress
on January 25, 1979, was more serious than it would be today
when neither the crusher nor the feeder is operating, but on
January 25, 1979, the crusher was operating even though the
feeder was not.
For that reason, I find that the evidence supports a
conclusion that the violation was moderately serious.
In summary, since we have a company which operates a
medium-sized business, and since we have a good faith effort
to achieve compliance and a moderate amount of negligence and
a moderate amount of gravity, I believe a penalty of $400
should be assessed, to which there should be added $50 under
the criterion of history of previous violations, so that the
total penalty in this case should be $450.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, A. H. Smith Stone Company
shall pay a penalty of $450.00 for the violation of section 56.11-1 charged
in Citation No. 301536 dated January 26, 1979.

~~C.<;$~

Richard C. S t e f f e y 7
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Barbara Krause Kaufmann, Attorney, Office of the Solicitor,
U.S. Department of Labor, Room 14480-Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
A.H. Smith Stone Company, Attention: A.H. Smith,"Jr., and
Wheeler B. Green III, Branchville, MD 20740 (Certified Mail)

3493

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLf AX AVENUE
DENVER, COLORAOO 80204

DEC 2
)

NOTICE OF CONTEST

)

GEX COLORADO, INCORPORATED,

)
)

Contestant,

v.

1980

/

DOCKET NO. WEST 80-327-R
Citation No. 0786929

)
)

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

)

Roadside Mine

)
)
)

~~~~~~~~~~~~~~~~>
DECISION
Appearances:
Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown
1100 United Bank Center, Denver, Colorado 80290
for Contestant,
Robert J. Lesnick, E~q., Office of Tedrick A. Housh, Jr.,
Regional Solicitor, United States Department of Labor
Room 2106, 911 Walnut Street, Kansas City, Missouri 64106
for Respondent
Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor,
United States Department of Labor,
1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
for Respondent
Before:

Judge John J •. Morris
STATEMENT OF THE CASE

Contestant, GEX Colorado, Incorporated, (GEX), seeks damages, expenses,
and costs against the Secretary of Labor. It alleges that it suffered such
damage as a result of the improper issuance of Citation No. 786929 by a
mine safety inspector of the Federal Mine Safety and Health Administration
(MSHA). The citation was originally issued under the authority of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, !E_~·
PROCEDURAL BACKGROUND
At a hearing on May 20, 1980 in Grand Junction, Colorado in a
case 1 involving the above parties, the representative of GEX presented
a copy of its notice of contest of MSHA citation No. 786929.
1/

GEX Colorado Incorporated, Contestant, vs. Secretary of Labor, Mine
Safety and Health Administration (MSHA), Respondent, Docket No.
WEST 80-306-R, decision issued June 9, 1980.

3494

l

·•

i

f

J

The parties indicated the citation had been withdrawn before the
hearing. (Tr. 7-8). The Commission file was subsequently assigned to the
trial judge.
In reply to a Commission order on May 29, 1980, GEX indicated its
intention to seek the additional relief as prayed in its notice of contest
although the citation had been vacated.
GEX's additional relief seeks: general damages according to
proof; punitiv~ and exemplary compensation; costs of maintaining
the action; incidental expenses according to proof; other and
further relief as the Commission deems proper.
GEX expressly states that any and all compensation awarded to it will be
used to offset any future valid assessed penalties.
Subsequent to the events of May 20, 1980, the Commission Judge stated
he would rule on the issue of whether the GEX notice of contest, in its
present posture, states a claim upon which relief can be granted. If
affirmative, the case would be set for an evidentiary hearing. If negative
the notice of contest would be dismissed. (Order, July 11, 1980).
The parties filed briefs in support of their respective positions.
The Secretary contends that the Federal Mine Safety and Health Review
Commission does not have jurisdiction to consider the merits of GEX's claim
because the citation was withdrawn by MSHA prior to the time that GEX filed
its notice of contest. Additionally, MSHA a~serts that the doctrine of
sovereign immunity bars recovery on GEX's claim. The Secretary also has
moved to dismiss the case on the ground that GEX has failed to state a
claim upon which relief can be granted.
ISSUE
In a notice of contest under Section lOS(d) of the Federal Mine Safety
and Health Act, contestant seeks damages against the Secretary of Labor.
Prior to the filing of the notice of contest the Secretary withdrew his
citation against contestant. The issue is whether the Review Commission
has jurisdiction to consider the contest.
FINDINGS OF FACT
The facts as shown by the file and admissions are as follows:
1. A federal mine inspector issued Citation 786929 to GEX on
April 29, 1980.

3495

2. The citation charged GEX with violating 30 CFR 75. 1704 2 by
failing to provide substantial fire doors in the main intake portal. The
inspector gave GEX an extension until May 19, 1980 to abate the condition.
3. On May 15, 1980, after incurring some abatement expense, GEX was
advised by the inspector that MSHA had wiihdrawn the citation as '~eing
written in error" (Tr. 6, notice of contest.)
4. The notice of contest was lodged with the Review Conunission on May
23, 1980.
DISCUSSION
For the reasons hereafter stated the notice of contest is dismissed
with prejudice.
The legal matters over which the Conunission has jurisdiction are
·limited to those set forth in the Federal Mine Safety and Health Review
Act, 30 U.S.C. 801 et seq.
A mine operator is afforded an opportunity
for a hearing on its-Contest of a citation, a withdrawal order, the length
of an abatement period, or the penalty assessed by the Secretary,30 U.S.C.
815(d). There are additional opportunities for a hearing that are not
relevant here but there is no provision in the Act for a suit against the
Secretary of Labor for damages sustained as a result of the improper
issuance of a citation. A contest of a citation involves a dispute as to
the validity of the citation. It cannot be construed so as to provide for
a hearing on a claim for consequential damages suffered by the operator.
GEX contends that the grant of authority in 30 U.S.C. 815(d) giving
the Commission the power to order "other appropriate relief", is to be
interpreted to allow consideration of GEX's claims for a set off. I
disagree. This provision refers to the authority of the Commission to
provide relief to the parties who have brought before the Conunission
matters within its jurisdiction. Since the citation which gave rise to the
claimed damages had been withdrawn prior to the time GEX filed its notice
of contest there is no substantive matter in the notice that is cognizable
by the Commission.
2/ § 75.1704 Escapeways. [Statutory Provisions]. Except as provided in
§ 75.1705 and 75.1706, at least two separate and distinct travelable
passageways which are maintained to insure passage at all times of
any person, including disabled persons, and which are to be designated as escapeways, at least one of which is ventilated with intake
air, shall be provided from each working section continuous to the
surface escape drift opening, or continuous to the escape shaft or
slope facilities to the surface, as appropriate, and shall be
maintained in safe condition and properly marked. Mine openings shall
be adequately protected to prevent the entrance into the underground
area of the mine of surface fires, fumes, smoke, and floodwater.
Escape facilities approved by the Secretary or his authorized
representative, properly maintained and frequently tested, shall be
present at or in each escape shaft or slope to allow all persons,
including disabled persons, to escape quickly to the surface in
the event of an emergency.

3496

GEX also cites North American Coal Corp., 3 IBMA 93 (1974) as support
for its theory that it is entitled to an award of damages and to set off
such claim against any future penalties. North American is distinguishable
from the present case. There the Interior Board of Mine Operations Appeals
ruled that the loss in production incurred as a result of a vacated
withdrawal order could be considered as a mitigating factor in the
assessment of the penalty for the violation which was the subject of the
withdrawal order. The loss was to be considered in the same manner as the
other statutory criteria required to be evaluated in the calculation of a
penalty. It was within the discretion of the judge to determine how much,
if any, the penalty should be reduced because of the economic loss.
The Board did not rule that damages could be assessed against the
United States and set off against any future civil penalties. The
reduction in the fine was allowed because the economic loss plus the
reduced penalty was believed by the Board to be a sufficient deterrent
against future infractions. The ruling was limited to instances where the
condition which gave rise to the improper withdrawal order and subsequent
loss in production is the same condition for which the civil penalty is
assessed. Cf. Climax Molybdenum Company v. Secretary of Labor et al
DENV 79-102-M, October 1980.
In the present case, there is no penalty assessment at issue. The
ultimate remedy requested by GEX, if granted, would allow them to violate
the Act with impunity until any money damages were satisfied. This would
contravene the intention of Congress in providing for the assessment of a
penalty.
The intent of Congress on this point appears in the legislative
history.
To be successful in the objective of including effective
and meaningful compliance, a penalty' should be of an amount
which is sufficient to make it more economical for an op~rator
to comply with the Act's requirements than it is to pay the
penalties assessed and continue to operate while not in compliance.
Senate Report No. 95-181, 95th Cong., 1st Sess. ·41 (1977).
For the reasons stated, I have determined that the Review Commission
does not have jurisdiction to consider contestant's claim for damages.
Accordingly, it is not necessary to consider the Secretary of Labor's
arguments based on sovereign immunity.3
CONCLUSIONS OF LAW
The Commission lacks jurisdiction to consider this case because the
citation was withdrawn before the notice of contest was filed. A procedure
awarding damages in such a situation would be inconsis"tent with the Act.
For these reasons I find that Contestant has failed to state a claim upon
which relief can be granted.

!/

For a companion case discussing the doctrine of soverign immunity see
GEX Colorado vs. Secretary of Labor, WEST 80-328-R.

3497

ORDER
Based on the foregoing facts and conclusions of law I enter the
following order:
The notice of contest is dismissed with prejudice.

Law Judge

Distribution:
Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr.
Regional Solicitor, United States Department of Labor
Room 2106, 911 Walnut Street, Kansas City, Missouri 64106
Ann M. Noble, Esq., Office of .Henry Mahlman, Regional Solicitor
U. S. Department of Labor,
1585 Federal BuildinR, 1961 Stout Street, Denver, Colorado 80294
Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown, Attorneys at Law
1100 United Bank Center, Denver, Colorado 80290

3498

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

DEC 2

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

1980

CIVIL PENALTY ACTION
DOCKET NO. WEST 79-28-M

Petitioner,

ASSESSMENT CONTROL NO.
05-00281-03012

v.

GEX COLORADO, INC.,
ROADS IDE MINE
Respondent.

APPEARANCES:
Ann M. Noble, Esq., Office of Henry C. Mahlman, Associate Regional
Solicitor, United States Department of Labor, Denver, Colorado
for the Petitioner,
Curt Neumann, Assistant Safety Director, appearing pro se, Grand
Junction, Colorado
for the Respondent.
Before:

Judge John J. Morris
DECISION

In this civil penalty proceedings Petitioner, the Secretary of Labor,
on behalf of the Mine Safety and Health Administration (MSHA), charges that
respondent, GEX Colorado, Inc. (GEX), violated regulations promulgated under
the authority of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 ~seq.
Pursuant to notice, a hearing on the merits was held in Grand Junction,
Colorado on May 20, 1980.
The parties waived their right to file post trial briefs.
ISSUES
The issues are whether GEX violated the standards.

3499

CITATION 24246S
This citation alleges a violation of 30 C.F.R. 7S.302-4(a) 1
The facts are ·uncontroverted.
1. MSHA Inspector Walter Blanc used a smoke tube test to determine the
flow of the air current in the GEX mine (Tr. S, 6, 10).
2. Air from the working face in the mine was being recirculated into
the ai~ intake entry and thus the air was again travelling to the working
face (Tr. 4-S) ..
3. The recirculating air from the auxilliary fan was blowing under a
line curtain instead of following the return air course (Tr. S, 8, PS).
DISCUSSION
GEX contends the situation cited by the inspector was merely turbulent
air which did not create a hazard. In addition, GEX asserts that MSHA
failed in its burden of proof because the inspector did not follow the air
to the working face (Tr. 90).
GEX's arguments lack merit. The inspector's testimony clearly
establishes that a recirculation of air occurred. The regulation prohibits
such a recirculation "at any time". The regulation in its present form
presumes the existence of a hazard.
Concerning the second argument, it is not necessary for the MSHA
inspector to follow the air to the working face. The movement of the
recirculated air into the intake air entry is sufficient to establish the
violation of 30 C.F.R. 7S.302-4(a). Once it has entered the intake air
corridor, the air can only be drawn to the working face (Exhibit PS). The
citation should be affirmed.
In view of the statutory criteria 2 , I consider the proposed civil
penalty of $114.00 to be appropriate.

1/

§ 7S.302-4

Auxiliary fans and tubing.

(a) The fan shall be of a permissible type, maintained in
permissible condition, so located and operated to avoid any recirculation of air at any time, and inspected frequently by a
certified person when in use.
2/

30 USC 820(i)

3500

CITATION 24246 7
This citation alleges a violation of 30 C.F.R. 75.403.
The parties by stipulation prop~se an amendment of the civil penalty
and respondent agrees to withdraw its notice of contest.
An analysis of the supporting documentation indicates that the proposed
settlement is warranted in view of the statutory criteria, 30 USC 820(i).
Accordingly this citation and the proposed civil penalty, as amended, in the
amount of $75.00 should be affirmed.
CITATION 242662
This citation alleges a violation of 30 C.F.R. 75.316 3 •
r:',
! •,

The facts are conflicting and I find the following facts to be
credible.
1. MSHA Inspector Matthew Biondich, using his anemometer, was unable
to measure the air velocity in the mine (Tr. 33-38).
2.

The stoppings in the mine were leaking "pretty bad" (Tr. 35).

3. Three smoke readings indicated an air velocity of 7025 cfm (cubic
feet per minute). (Tr. 39-40).
4. After the stoppings were repaired, the velocity increased to 20,475
cfm (Tr. 44).

r:..,

I

r
i

~
'

I

\_j

5. According to GEX's ventilation plan, 16,000 cfm should be
maintained (Exhibit P-3).
Respondent's two fold argument is that the decrease in air velocity was
due to necessary ventilation changes when moving from one side of the belt
line to the other. Further, respondent asserts it cannot be expected to
maintain air velocity in the last open cross cut.

3/

§ 75.316

Ventilation system and methane and dust control plan.
[STATUTORY PROVISIONS]
A ventilation ·system and methane and dust control plan and
revisions thereof suitable to the conditions and the m1°ning system
of the coal mine and approved by the Secretary shall be adopted
by the operator and set out in printed form on or before June 28,
1970. The plan shall show the type and location of mechanical
ventilation equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working face, and such
other information as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least every 6 months.

3501

\._

~.-.)

I reject respondent's arguments. While a conflict exists as to the
amount of the air velocity in this section of the mine, I find this to be
basically a matter of expert testimony. Respondent conceded the expertise
of the MSHA inspectors (Tr. 32-33).
Respondent's defenses cannot prevail since its ventilation plan
requires air velocity at all places in excess of the 7025 cfm measured by
the inspector.
This citation should be affirmed and in view of the statutory
criteria 4 , I consider the proposed civil penalty of $180.00 to be
appropriate.
ORDER
Based on the foregoing findings of fact, conclusions of law, and
stipulation I hereby enter the following order:
1. Citation 242465 and the proposed civil penalty of $114.00 are
affirmed.
2. Citation 242467 and the proposed civil penalty, as amended, in the
amount of $75.00 are affirmed.
3. Citation 242662 and the proposed civil penalty of $180.00 are
affirmed.

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, United States Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294
Mr. Curt Neumann, Acting Safety Director, GEX Colorado, Inc., P. 0.
Box W, Palisade, CO 81526

4/

30 USC 820(i)

3502

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

)

DEC 2

NOTICE OF CONTEST

)

GEX COLORADO, INCORPORATED,

)
)

Contestant,
v.

DOCKET NO. WEST 80-328-R
Citation No. 0786890

)
)

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

)

Roadside Mine

)
)
)
)

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

DECISION
Appearances:
Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown
1100 United Bank Center, Denver, Colorado 80290
for Contestant,
Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr.,
Regional Solicitor, United States Department of Labor
Room 2106, 911 Walnut Street, Kansas City, Missouri 64106
for Respondent
Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor,
United States Department of Labor,
1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
for Respondent
Before:

Judge John J. Morris
STATEMENT OF THE CASE

Contestant, GEX Colorado, Incorporated, (GEX), seeks damages, expenses,
and costs against the Secretary of Labor. It alleges that it suffered such
damage as a result of the improper issuance of Citation No. 786890 by a
mine safety inspector of the Federal Mine Safety and Health Administration
(MSHA). The citation was originally issued under the authority of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, !!_seq.
PROCEDURAL BACKGROUND
At a hearing on May 20, 1980 in Grand Junction, Colorado in a
case 1 involving the above parties, the representative of GEX presented
a copy of its notice of contest of MSHA citation No. 786890.
1/

GEX Colorado Incorporated, Contestant, vs. Secretary of Labor, Mine
Safety and Health Administration (MSHA), Respondent, Docket No.
WEST 80-306-R, decision issued June 9, 1980.

3503

19!>.

Counsel for the Secretary of Labor moved to withdraw the citation,
(Tr. 7). The trial judge indicated he did not have the Commission file
but he would grant the motion to vacate (Tr. 10). The file was
subsequently assigned to the trial judge.
In reply to a Commission order on May 29, 1980, GEX indicated its
intention to seek the additional relief as prayed in its notice of contest
although the citation had been vacated.
GEX's additional relief seeks: general damages according to
proof; punitive and exemplary compensation; costs of maintaining
the action; incidental expenses according to proof; other and
further relief as the Commission deems proper.
GEX expressly states that any and all compensation awarded to it will be
used to offset any future valid assessed penalties.
Subsequent to the events of May 20, 1980, the Commission Judge stated
he would rule on the issue of whether the GEX notice of contest, in its
present posture, states a claim upon which relief can be granted. If
affirmative, the case would be set for an evidentiary hearing. If negative
the notice of contest ~ould be dismissed. (Order, July 11, 1980).
The parties filed briefs in support of their respective positions •.
The Secretary contends that the doctrine of .sovereign immunity bars
recovery on GEX's claim. He also has moved for the dismissal of the case
on the ground that GEX has failed to state a claim upon which relief can be
granted.
ISSUE
The issue raised is whether contestant, GEX, can seek damages against
the Secretary of Labor for an allegedly improper issuance of a citation.
FINDINGS OF FACT
The facts as shown by the file and admissions are as follows:

1. A federal mine inspector issued Citation 786890 to GEX on
May 15, 1980.

3504

2. The citation charged GEX with violating 30 CFR 75.503 2 by
failing to properly maintain its roof bolting machine. Specifically,
flat washers were used between the face of the lock washers and the cover
lid bolts on the main controller compartment. (Citation, Notice of
Contest, , 4).
3. The GEX notice of contest was presented 3 to the Review
Commission Judge during a hearing on an unrelated case involving the same
parties.

4.
786890.

At the above hearing the Secretary moved to vacate Citation
The motion to vacate was granted (Tr. 7, 10).
DISCUSSION

For the reasons hereafter stated the notice of contest is dismissed
with prejudice.
The Secretary is correct in his view that the doctrine of sovereign
immunity bars GEX's claim. There are a myriad of cases ~olding that the
United States "is immune from suit save as it consents to be sued . •
and the terms of its consent to be sued in any court define the court's
jurisdiction to entertain the suit." United States v. Testan 424 U.S. 392
(1976). Contestant is not entitled to money damages without a waiver of
sovereign immunity, and the Federal Mine Safety and Health Act of 1977
contains no such waiver.
A mine operator is provided relief from improper actions of the
Secretary through the vacation or modifi~ation of a citation, penalty,
order .of withdrawal, or abatement period. Administrative and judicial
review of any action of the Secretary is allowed but the remedies available
do not include monetary or exemplary damages.

2/ § 75.503 Permissible electric face equipment; maintenance. [Statutory
Provisions] The operator of each coal mine shall maintain in
permissible condition all electric face equipment required by
§§ 75.500, 75.501, 75.504 to be permissible which is taken into or
used inby the last open crosscut of any such mine.
3/

No party questions the propriety of the service of the notice of
contest under these circumstances, and that issue is not addressed
in this decision.

3505

GEX contends that the grant of authority in 30 U.S.C. 815(d), giving
the Commission the power to order "other appropriate relief", is to be
broadly interpreted to allow consideration of GEX's claims for a set off.
I disagree. The consent to be sued must .be "unequivocally" expressed in
the statute. Testan, supra. "Other appropriate relief" cannot be.
interpreted as an express waiver of sovereign immunity.
GEX also cites North American Coal Corp., 3 IBMA 93 (1974) as support
for its theory that it is entitled to an award of damages which would be
set off against any future penalties. North American is distinguishable
from the present case. There the Interior Board of Mine Operations Appeals
ruled that the loss in production incurred as a result of a vacated
withdrawal order could be considered as a mitigating £.actor in the
assessment of the penalty for the violation which was the subject of the
withdrawal order. The loss was to be considered in the same manner as the
other statutory criteria required to be evaluated in the calculation of a
penalty. It was within the discretion of the judge to determine how much,
if any, the penalty should be reduced because of the economic loss.
The Board did not rule that damages could be assessed against the
United States and set off against any future civil penalties. The
reduction in the fine was allowed because the economic loss plus the
reduced penalty was believed by the Board to be a sufficient deterrent
against future infractions. The ruling was limited to instances where the
condition which gave rise to the improper withdrawal order and subsequent
loss in production is the same condition for which the civil penalty is
assessed. Cf. Climax Molybdenum Company v. Secretary of Labor et al
DENV 79-102-M, October 1980.
In the present case, there is no penalty assessment at issue. The
ultimate set off remedy requested by GEX, if granted, would allow them to
violate the Act with impunity until any money damages were satisfied. This
would contravene the intention of Congress in providing for the assessment
of a penalty.
The intent of Congress on this point appears in the legislative
history.
To be successful in the objective of including effective
and meaningful compliance, a penalty should be of an amount
which is sufficient to make it more economical for an operator
to comply with the Act's requirements than it is to pay the
penalties assessed and continue to operate while not in compliance.
Senate Report No. 95-181, 95th Cong., 1st Sess. 41 (1977).
CONCLUSIONS OF LAW
The Commission lacks jurisdiction to consider a claim for damages
against the Secretary of Labor since the Federal Mine Safety and Heaith Act
of 1977 does not waive the sovereign immunity of the United States.
A procedure awarding damages for a future set off in such a situation would
be inconsistent with the Act. For these reasons I find that contestant has
failed to state a claim upon which relief can be granted.

3506

ORDER
Based on the foregoing facts and conclusions of law I enter the
following order:
The notice of contest is dismissed with prejudice.

Judge

Distribution:
Robert J. Lesnick, Esq., Office of Tedrick A. Housh, Jr.
Regional Solicitor, United States De~artment of Labor
Room 2106, 911 Walnut Street, Kansas City, Missouri 64106
Ann M. Noble, Esq., Office of Henry Mahlman, Regional Solicitor
U. S. Department of Labor,
1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Richard L. Fanyo, Esq., Welborn, Dufford, Cook & Brown, Attorneys at Law
1100 United Bank Center, Denver, Colorado 80290

3507

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

(703) 756-6210/l? /12

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

v.
CAROLINA STALITE COMPANY,
Respondent

DEC 2

Civil Penalty Proceedings
Docket No. BARB 79-319-P
A.O. No. 31-00136-05006R
Docket No. SE 79-56-M
A.O. No. 31-00136-05007
Docket No. SE 79-91-M
A.O. No. 31-00136-05001
Docket No. SE 79-92-M
A.O. No. 31-00136-05003
Docket No. SE 79-93-M
A.O. No. 31-00136-05004
Docket No. SE 79-94-M
A.O. No. 31-00136-05002
Docket No. SE 79-95-M
A.O. No. 31-00136-05005
Docket No. SE 79-85-M
A.O. No. 31-00136-05008
Docket No. SE 79-87-M
A.O. No. 31-00136-05009
Docket No. SE 79-114-M
A.O. No. 31-00136-05010~
Docket No. SE 80-35-M
A.O. No. 31-00136-05012
Docket No. SE 80-37-M
A.O. No. 31-00136-05013
Docket No. SE 80-44-M
A.O. No. 31-00136-05014
Stalite Mill

3508

1980

DECISION AND ORDER
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S~ Department of Labor, Nashville, Tennessee, for
the petitioner;
William C. Kluttz, Jr., Esq., Salisbury, North Carolina,
for the respondent.

Before:

Judge Kennedy

These 13 penalty cases involve 133 charges of violations of the
Mine Act and the mandatory safety standards for sand, gravel and crushed
stone operations set forth in 30 C.F.R. Part 56. In all these cases,
the operator filed an answer· in which it (1) generally denied liability,
(2) specifically denied subject matter jurisdiction, (3) moved to suppress
evidence, (4) challenged the standards for vagueness, and (5) claimed
the charges were the result of arbitrary and capricious action.
On November 28, 1979, respondent filed a motion for summary
decision and to dismiss based on its jurisdictional and constitutional
"challenges. After briefing and oral argument, the motion was denied
by Decision and Order of April 14, 1980, a copy of which is attached
hereto and incorporated herein.
Thereafter, in the interest of a just, speedy and inexpensive
disposition, the parties stipulated to waive an evidentiary hearing
and agreed to submit all of the violations for decision on the record
of their written submissions, leaving to the judgment, expertise and
discretion of the trial judge the resolution of factual conflicts
and the determination of the amount of the penalties warranted.
5 U.S.C. § 556(d); 30 U.S.C. §§ llO(i), (k), 113(d). The stipulation
originally proposed that in addition to deciding the merits the trial
judge would rule on the void for vagueness claim without briefing or
argument. When the trial judge declined to accept this provision,
respondent withdrew this challenge. The stipulation as filed on
August 11, 1980 and amended on October 30, 1980, the trial judge finds
is acceptable.
The claim that the charges are arbitrary and capricious is without
merit. The evidence shows that most of the violations did, in fact,
occur. Furthermore, the undisputed evidence as to the conditions observed
by the inspector established probable cause to believe that at the time
of issuance of the citations and orders the violations charged existed.
There is no evidence that the enforcement action taken was so selective
as to establish an abuse of discretion or so grossly erroneous as to
imply bad faith. Accordingly, the defense of arbitrary and capricious
action is denied.

3509

The record for decision in these cases consists of the citations
and orders, the inspector's statements and contemporaneous notes, the
operator's statements in defense or in mitigation of the gravity and
negligence (Exhibit "B" to the stipulation as amended), photographs
submitted by respondent, sketches submitted by petitioner, and the
parties' prehearing submissions.
After a careful review of the record and based on an independent
evaluation and de novo review of the circumstances of each violation,
I find, that except as noted below, the conditions and practices observed
and set forth in the citations and orders were violations of the mandatory
safety !'ltandards cited. Appendix "A" attached hereto and made a part
·hereof, supplemented where appropriate with the additional discussion
contained in Appendix "B" hereto, contains my determinations with respect
to gravity, negligence, and, based on my consideration of the other
criteria applicable to the assessment of penalties, findings as to the
amount of the penalties warranted for each violation found. For the
reasons advanced by the operator, and after careful consideration of
the record considered as a whole, including the physical circumstances
shown in the photographs and sketches, I find the violations indicated
in Appendix "A" as "vacated" are deficient as a matter of fact and law,
and that these violations did not, in fact, occur.
The total amount of the penalties found warranted for the 103
violations found is $14,542.00. Accordingly, it is ORDERED that on or
before Monday, December 29, 1980, the operator pay the amount of the
penalties assessed, $14,542.00, and that sub' t to payment the captioned
matters be, and hereby are, DISMISSED.

Attachments
Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)
William C. Kluttz, Jr., Esq., Kluttz and Hamlin, 507 West Innes Street,
P.O. Drawer 1617, Salisbury, North Carolina 28144 (Certified Mail)

3510

*See ..Appendix B

79-91

79-56

5f

79-319

~~ft~

Docket No.

56.11-12
56.14-1
56.4-33
56.4-4
56.12-20
56.12-30
56.14-6
56.14-6
56.14-6
56.11-2
56.14-6
56.11-2

105195
105196
105567
105568
105569
105570
105572
. 105573
105574
105575
105576
105577
56.16-5
56.14-8(b)
56.12-8
56.12-32
56.15-5

56.9-2
56.9-2
56.14-6

105191
105192
105193

104395
104397
104398
104399
104650

56.14-6
56.14-1

§103(a)

Standard

105187
105190

104393

Citation/Order No.
Intentional

Negligence

Ordinary
Ordinary
Ordinary
Ordinary
High degree of ordinary

Low Risk
No Negligence
Vacated - protected
by location
High Risk
High degree of ordinary
High Risk
High degree of ordinary
Vacated - protected
by location
Moderate Risk
Ordinary
Moderate Risk
Ordinary
High Risk
Ordinary
High Risk
Ordinary
Vacated - area dry,
no shock hazard
existed
Low Risk
Ordinary
Vacated - protected
by location
Vacated - protected
by location, machinery
not in operation
Vacated - protected by
location, machinery not
in operation
Low Risk
Ordinary
Low Risk
Ordinary
Low Risk
Ordinary

*Serious

Gravity

High Risk
Moderate Risk
Low Risk
Low Risk
High Risk

APPENDIX A

150
100
75
75
300

75
75
75

75

125
125
175
175

500
500

50

$ 500

:...~

Penaltl:'.

.1.'c.lbt=:
..L

S6.14-l
S6.14-l
S6.14-l
S6.14-l
S6.14-l
S6.9-7
S6.14-l
S6. ll-13
S6.14-2
S6.14-l
S6.14-l
S6.14-l
56.14:-1
S6.14-l
S6.14-l
S6.14-l
56.14-1
S6.14-l
S6.14-l
56.11-2

104618

104619

104620

104628
104629
104630
104631

104632
104633
104634

104635
104637

104638
104639
104640

104641

104642
104643

104644
104645

.....

S6.9-3

104687

79-92

S6.9-3

1046Sl

79-91 (cont.)

Standard

Citation/Order No.

Docket No.

APPENDIX A

Gross

Gross

Negligence

Vacated - protected
by barrier and location
Vacated - protected
by barrier and location
Vacated - per MSHA Management
Letter No. 80-61
Low Risk
No negligence
Low Risk
No negligence
Low Risk
Ordinary
Vacated - protected
by location
Low Risk
No negligence
Low Risk
No negligence
Vacated - protected
by location
Non-serious
No negligence
Vacated - protected
by location
Low Risk
Ordinary
Low Risk
Ordinary
Vacated - protected
by location
Vacated - protected
by location
High Risk
Ordinary
Vacated - per MSHA
Management Letter
No. 80-61
Low Risk
Ordinary
Low Risk
Ordinary

Extremely Serious
(imminent danger)
Extremely Serious
(imminent danger)

Gravity

•

75
75

lSO

7S
7S

so

so
so

7S

so
so

1000

$ 1000

Penalty

Page 2

56.11-13
56.14-1
56.9-7
56.9-7
56.12-8
56.11-1
56.14-1

56.14-1
56.14-2
56.14-1
56.14-1
50.20-1
50.30(a)
56.14-1
56.14-1
56.14-1
56.9-7

104667
104668
104669
104670
104671
104672
104652
104653
104654
104655

104400
104601
104602
104603
104604
104605
104606

56.11-2
56.14-1
56.14-1
56.14-1
56.14-1

104662
104663
104664
104665
104666

56.4-2
56.4-24(c)

56.14-1
56.14-1
56.11-12
56.14-1

104647
104648
104649
1046e-l

104394
104396

56.14-1

104646

79-93

79-94

Standard

Citation/Order No.

Docket No.

APPENDIX A

No negligence
Ordinary
No negligence
Ordinary
No fault
No fault
Ordinary
Ordinary
Ordinary
Ordinary

Ordinary
Ordinary
Ordinary
Ordinary

No negligence
No negligence
Ordinary

NegligenFe

Low Risk
Ordinary
Vacated - extinguisher
not discharged
Low Risk
Ordinary
Low Risk
Ordinary
Low Risk
Ordinary
Low Risk
Ordinary
Low Risk
No negligence
Low Risk
Ordinary
Vacated - protected
by barricade and
location

Vacated - protected
by barricade and
location
Low Risk
Low Risk
High Risk
Vacated - protected
by location
Low Risk
Low Risk
Low Risk
Low Risk
Vacated - protected
by location
Low Risk
Low Risk
Low Risk
Low Risk
No Risk
No Risk
Low Risk
Low Risk
Low Risk
Low Risk

Gravity

75
75
75
75
30
75

30

50
75
50
75
1
1
75
75
75
75

75
75
75
75

50
50
150

Penalt;t:

79-95

Docket No.

56.14-1
56.14-1
56.14-1
56.9-22
56.14-1
56.11-2
56.14-1
56.11-2
56.14-1
56.9-7

104608
104609
104610
104611
104612
104613
104614
104615
104616
104617

.

~·

-~·

.;

, ,

.... --· .. ..

56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.9-7
56.9-7
56.14-6
56.14-1
56.11-12
56.14-1
56.12-32

56.14-1

104607

104656
104657
104658
104659
104660
104673
104674
104675
104676
104677
104678
104679

Standard

Citation/Order No.

APPENDIX A

"· -~.

.. '

'•.

·"•

Low Risk
Low Risk
Low Risk
Low Risk
Low Risk
Low Risk
Low Risk
Moderate Risk
Low Risk
High Risk
Low Risk
Moderate Risk
,..,..

Vacated - protected
by barricade and
location
Low Risk
Vacated - per MSHA
Management Letter
No. 80-61
Vacated - protected
by location
High Risk
Vacated - per MSHA
Management Letter
No. 80-61
Serious
Vacated - protected
by location
Low Risk
Vacated - protected
by location
Low Risk

Gravity

·~· u.~.··~.•,... ~~•,.·•·'·II.•~•'

•

•••!''~

Ordinary
Ordinary
Ordinary
No negligence
Ordinary
Ordinary
Ordinary
Ordinary
Ordinary
Ordinary
No Negligence
Ordinary

Ordinary

Ordinary

Ordinary

No negligence

Ordinary

Negligence

·•

•.• ;.,, •

.;.. I-.

•T

.... ~A.;

75
75
75
50
75
75
75
125
75
150
50
75

75

75

150

75

75

Penalty

Page 4

104510
105556
105557
105558

80-35

*See Appendix B

104453

56.11-1

105197

79-114

56.14-1

105571

56.9-73
56.14-1
56.11-2
56.14-1

56.15-5

56.14-45

56.15-4

105565

105566

56.12-16

56.14-2
56. 9-11

104684
104685

105198(b)

56.14-1

104683

56.11-2
56.11-2
56.11-2
56.15-5

56.14-1
56.11-1
56.14-1

104680
104681
104682

105188
105189
105194
105198(a)

Standard

Citation/Order No.

79-87

79-85

Docket No.

APPENDIX A

Ordinary
Ordinary

No negligence
Ordinary

Negligence

Low Risk
High Risk
Low Risk
Low Risk

*Extremely serious
(imminent danger)

Very High Risk

No negligence
Ordinary
Ordinary
Ordinary

Gross

High degree of ordinary

Moderate Risk
Ordinary
Moderate Risk
Ordinary
Moderate Risk
Ordinary
Extremely Serious
Gross
(imminent danger)
Extremely Serious
Ordinary
(imminent danger)
Vacated - condition
did not occur, men
wearing safety glasses
Vacated - protected
by location
High Risk
Ordinary

Low Risk
Low Risk
Vacated - protected
by location
Vacated - protected
by location
Low Risk
Low Risk

Gravity

30
125
75
75

1500

300

125

500

100
100
100
1000

75
75

50
75

Penalty

Page 5

Citation/Order No.

1055559
105560

104511
104512
105552
105553
105554
105555
104514
104515
104516

104513
104517
104520
106621
105522

Docket No.

80-35 (cont.)

80-37

80-44
56.9-6
56.14-1
56.18-10
56.9-6
56.17-1

56.14-1
56.11-12
56.9-88
56.14-1
56.14-1
56.14-1
56.11-1
56.11-12
56.11-2

56.14-1
56.14-1

Standard

Low Risk
High Risk
Low Risk
High Risk
High Risk
Low Risk
Low Risk
Low Risk
Low Ris.k

Low Risk
Low Risk

Gravity

Low Risk
Low Risk
Low Risk
High Risk
High Risk

APPENDIX A

TOTAL PENALTIES

Ordinary
Ordinary
Ordinary
Ordinary
Ordinary

Ordinary
Ordinary
Ordinary
Ordinary
Ordinary
Ordinary
Ordinary
No negligence
Ordinary

Ordinary
Ordinary

Negligence

$14,542

75
75
75
125
125

75
125
50
125
125
75
75
50
75

75
25

Penalty

Page 6

~~----------------·-;i
APPENDIX B
BARB 79-319-P
Citation No. 104393: The undisputed facts with regard to this
violation are set forth in the attached decision and order of April 14, 1980.
As discussed therein, section 103(a) of the Act provides a right of
entry upon mine property for the purpose of conducting inspections for
health and safety hazards. The operator contends, however, that a denial
of entry is not a violation of the Act for which a civil penalty may be
assessed~
I disagree. - Section llO(a) of the Act states that any operator
who violates "a mandatory health or safety standard or who violates
any other provision of this Act, shall be assessed a civil penalty ••• "
Since section 103{a) provides the Secretary with a right of entry upon
mine property, it also of necessity creates a duty on the part of the
operator not to interfere with the exercise of that right. Interference
with the right of entry by the operator is, therefore, a violation of
section 103(a), and a civil penalty for that violation must be assessed.
Accord, Waukesha Lime & Stone Co., 1 FMSHRC 512, 518 (June 5, 1979);
Baker Coal Co., 2 FMSHRC 2626 (September 16, 1980).

:.
; (

l .
•.':_.;

With regard to the amount of the penalty warranted for the violation
found, I note that the operator denied the inspector access to the mine
knowing full well that the inspector was authorized to enter by the Act.
I further note that the mine property had been inspected on numerous
occasions pursuant to the warrantless inspection provisions of the Metal
and Nonmetallic Mine Safety Act of 1966, and the operator was therefore
familiar with the federal inspection authority. This was a serious
violation in that it significantly lengthened the employees' exposure
to dangerous conditions. Accordingly, and after considering the other
statutory criteria, I conclude that a civil penalty in the amount of
$500 is warranted for this violation.

l

'

,

,

'

.J'

SE 79-114-M
Imminent Danger Closure Order No. 104453: Thirty minutes after
the operator's foreman had been warned against allowing workmen to work
in high places without safety belts and lines, he was observed watching an
employee standing twenty feet above the ground on a four-inch angle
iron brace working on a chute from the silo to the Nordberg crusher.
Because of the imminent hazard to life and limb, the inspector issued
a section 107(a) imminent danger closure order.
No excuse for the foreman's disregard for safety was offered.
Furthermore, there is no evidence that any disciplinary or other corrective
action was taken by the operator with respect to either the foreman or
the perpetrator of the violation. This indifference to the foreman's
reckless participation in the violation reflects a lack of commitment
to voluntary compliance by the operator and its supervisory management.

:

L

3517
---- --

-j

.__

Appendix B

Page 2

1
I find, therefore, that (1) the violation of 30 C.F.R. 56.15-5
charged did, in fact, occur, (2) the violation was extremely serious
in that it exposed_ the miner involved to a potentially fatal fall onto
structures below, and (3) the violation was the result of reckless
indifference to safe operating practices. Accordingly, and after considering
the other statutory criteria, I conclude that a civil penalty in the
amount of $1500 is warranted for this violation.

3518

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

(703) i56-6210!11 /12

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

Civil Penalty Proceedings
Petitioner

v.
CAROLINA STALITE COMPANY,
Respondent

Docket No. BARB 79-319-P
A.O. No. 31-00136-05006R
Docket No. SE 79-56-M
A.O. No. 31-00136-05007
Docket No. SE 79-91-M
A.O. No. 31-00136-05001
Docket No. SE 79-92-M
A.O. No. 31-00136-05003
Docket No. SE 79-93-M
A.O. No. 31-00136-05004
Docket No. SE 79-94-M
A.O. No. 31-00136-05002
Docket No. SE 79-95-M
A.O. No. 31-00136-05005
Docket No. SE 79-85-M
A.O. No. 31-00136-05008
Docket No. SE 79~87-M
A.O. No. 31-00136-05009
Docket No. SE 79-114-M
A.O. No. 31-00136-05010
Docket No. SE 80-35-M
A.O. No. 31-00136-05012
Docket No. SE 80-37-M
A.O. No. 31-00136-05013
Docket No. SE 80-44-M
A.O. No. 31-00136-05014
r

Stalite Mill

3519

circuit box for the overhead crane in the shop." Mandatory safety standard
30 C.F.R. § 56.12-37, provides as follows: "Fuse tongs or hotline tools
shall be used when fuses are removed or replaced in high-potential circuits."
The term "high potential" as used in section 56.12-37, is defined by section
56.1, as "more than 650 volts."
The citation was subsequently amended by Inspector Pappas on November 17,
1980, to reflect a correction in the citation to the mandatory standard which
Mr. Pappas intended to cite, namely section 56.12-36, which provides as
follows: "Fuses shall not be removed or replaced by hand in an energized
circuit, and they shall not otherwise be removed or replaced in an energized
circuit unless equipment and techniques especially designed to prevent electrical shock are provided and used for such purpose."
At the hearing, the respondent conceded that it ·was aware of the modified
citation, that it was served with a copy of same, and was not prejudiced in
•its ability to present a defense to the alleged violation of section 56.12-36,
as reflected in the modified citation (Tr. 4-5).
Petitioner's Testimony and Evidence
MSHA inspector Michael J. Pappas confirmed that he conducted an inspection at the mine site in question on June 21, 1978, and while in the garage
area one of the mechanics, a Mr. Feasal, brought to his attention a problem
that he was having concerning the rails on the overhead crane. Before climbing up to the crane area, Mr. Feasal deenergized it by walking to the fuse
box which supplied power to the crane, opening the box, and reaching in with
his hand and pulling out one of the fuses. Mr. Pappas expressed concern over
this act on the part of Mr. Feasal because the floor was wet and he did not
use any fuse tongs to remove the fuse. After showing him the problem with
the crane rails, Mr. Feasal replaced the fuse in the box by hand and turned
the switch back on (Tr. 18-22).
Mr. Pappas stated that simply because the handle to the fuse box is
turned or pulled down, this does not insure that the box is totally deenergized. Mr. Feasal removed the fuse so quickly, and it was done before he
realized what had happened, and since he was standing on a wet floor and did
not check to insure that the fuse knives were down, Mr. Pappas was concerned
about a shock hazard and believed that a violation occurred. He also indicated that unless the main power switch is disconnected, part of the fuse
box is still energized even though the door is open, and he determined that
the main power switch had not been turned off because the garage lights were
on and other electical power was being used. He determined that fuse tongs
were not used to remove the fuses, and he did so by asking the safety foreman and superintendent who informed him that fuse tongs were not used but
that they would obtain them (Tr. 23-24).
On cross-examination, Mr. Pappas stated that when Mr. Feasal removed the
first fuse he advised him that he should not do so, but that Mr. Feasal proceeded to remove the remaining two fuses by hand after he had warned him not

3574

to. Mr. Pappas confirmed that the floor was wet and he could not recall
observing a rubber mat under the fuse box (Tr. 24-28). He also confirmed
that he modified the citation after learning that the fuse box was less than
600 volts, and when he returned to the mine at a later time to look at the
box in the company of a mine electrical inspector, he recalled that he stated
that the back of the box was not deenergized (Tr. 28-29).
In response to further questions, Mr. Pappas indicated that abatement
was achieved with the purchase of fuse tongs by the respondent, and he could
not recall if the use or nonuse of such fuse tongs at the mine site.was discussed with any of his fellow inspectors. He did recall that respondent
advised him that tongs were never used, he observed none in use at the mine,
and could not recall discussing the matter with any mine personnel (Tr. 3435).
When called in rebuttal, Mr. Pappas stated that when he questioned
Mr. Feasal about the procedure he normally used to deenergize the box in the ·
event he had to perform mechanical work on the crane, Mr. Feasal told him
that he never used fuse tongs and that he and another mechanic always removed
them by hand (Tr. 75). Mr. Pappas also indicated that a fuse tong is an electrical tool not a mechanic's normal tool. He also questioned why an electrician would need a voltmeter if the box in question was in fact foolproof (Tr.
76). He also candidly admitted that if he observed a mechanic pull a fuse by
hand with the switchbox in the OFF position, he would cite him for a violation, but if he observed an electrician checking the box with a voltmeter
and it indicated no voltage, he would probably not cite the electrician if
he pulled the fuse by hand. But in the instant case, Mr. Feasal expressed
complete ignorance as to the use of a fuse.tong and he was not an electrician
(Tr. 77).
Respondent's Testimony and Evidence
Ronald Stapley, testified that he has been employed as an electrical
supervisor for the respondent for 18 years, supervises a crew of five people
in the mine electrical department, and that his department handles electrical
installations and maintenance. He was called to the scene of the citation
in question shortly after Mr. Pappas issued it. His people are equipped
with all the necessary protective equipnent required to perform their jobs,
and fuse tongs were located in the electrical shop. All of his electricians
are supplied with voltage-metering devices which they carry with them to
determine whether any of the circuits they work on are electrically alive.
He identified the fuse box in question (Exh. R-1) as the 450-volt Trumbull
disconnect switch which is the subject of the citation in question, and
indicated that it provides 440 volts to operate the crane in the garage.
He also indicated that he tested the box after the citation issued and
identified Exhibit R-5 as a memorandum dated November 19, 1979, which he
prepared, and he read the following pertinent portion into the record (Tr.
43): "The Trumbull three-phase 30-amp fuse disconnect switch was checked
from phase to phase and to ground on load side and was found to be zero
voltage on both checks with switch in OFF position. All points of access
were checked and found to have zero voltage readings."

3575

I

I

I

~ .. i

I
1.

Mr. Stapley testified that he tested every accessible area inside the
opened switchbox with a voltmeter and he indicated that the switch is
enclosed in a metal enclosure, that the live voltage area between the
switch and the box itself could only be reached with great difficulty,
and one would have to have "pretty small hands" to reach into that area.
The box has a cover lid enclosing it and in order for the switch to be in
an ON position the lid has to be closed and there is a mechanical interlock installed on it and one cannot gain access to the inside of the box
until the switch is turned to the OFF position. He traced the path of any
current entering the box with the switch in the ON position, and indicated
that power enters the box at the upper lefthand corner through the first
fuse, and in this position a spade at the bottom of the fuse position is
i~ a closed position.
When the switch is OFF, the spades are open, and
no current passes through the box, but rather, stops at the top of the box
where it is "alive." If the switch is in the OFF position, everything in
the box itself is "cold", and if one were to reach in and grab one of the
fuses he would not receive a shock. He identified Exhibit R-2 as a
schematic of the current path to the box and indicated that current enters
the box at the top left fuse and exits at the lower right end of the third
fuse to the load (Tr. 44-50).
Mr. Stapley stated that the switchbox in question is manufactured to
provide maximum protection to an individual in that the box has a safety
interlock and when the switch is on all three fuses are energized at the
same time, and when it is off all three are deenergized simultaneously.
In his opinion, the box is deenergized with the switch in an OFF position,
and if the main plant switch were turned off all of the power in the plant
would be shut down and the plant could not operate (Tr. 50-52).
On cross-examination, Mr. Stapley indicated that in the event of a
mechanical failure within the switchbox, it is possible that the blades may
not be completely pulled out when the box door is open, but this would happen
if the bar actually broke and was stuck in the closed position. He conceded
that in the event the secondary circuit within the box were deenergized, that
portion of the circuit stopping at the first fuse would still be energized
(Tr. 52-54).
In response to further questions, Mr. Stapley stated that an electrician
would never reach in and pull out a fuse by hand as Mr. Feasal did, and that
the usual procedure that an electrician would follow would be to turn the box
switch off and lock it out before performing any maintenance work on the box.
He could not explain why Mr. Feasal did what he did since lock-out procedures
were in effect at the time the citation issued. The switchbox in question
does.not require frequent maintenance, and he speculated that the fuses were
pulled by hand simply to turn off the power to the crane. He explained the
procedure followed by his electricians in checking for bad fuses. An electrician would throw the switch to the OFF position, open the switch door,
check it for power, turn the switch on and make a voltage check with a voltmeter to determine which fuse was bad, and he would then turn the switch
to the OFF position and remove the defective fuse by hand.(Tr. 54-59).

3576

Mr. Stapley indicated that the fuse box is part of the circuit from the main
power source to the box, but that it would only be energized up to the top
of the box disconnect (Tr. 60).
Harold McKinnon, testified that he has been employed by the respondent
for 32 years and that he is the safety supervisor for all of its plants. He
was present at the facility on June 21, when the inspection took place and
confirmed Inspector Pappas' recollection concerning Mr. Feasal pulling the
fuses by hand, and recalled that the area was damp. A rubber mat was in
place under the fuse box in question, and he indicated that one can determine
whether the switchbox is "hot" by visually observing the knives on the foot
bar from the side of the fuses. When the switch is in the ON position, the
knives are up and insert themselves into the contact point, and when they
are down, the switch is disconnected and OFF, and safe in that position.
He was with Mr. Stapley when he tested the switchbox and confirmed his findings that "everything" was in order. When the switch is OFF, one would have
to make an effort to reach around behind the box to touch an energized circuit, and the box itself is designed to preclude this from happening (Tr.
61-67).
On cross-examination, Mr. McKinnon stated that he never observed a
mechanic remove a fuse by.hand and that he was as surprised as Inspector
Pappas was when Mr. Feasal did it (Tr. 67). In response to further
questions, he candidly admitted that fuses were supposed to be removed by
fuse tongs, that tongs were available long before the citation issued, "but
there is probably not as much emphasis put on it as they are right now" (Tr.
68). When asked whether the box could become energized when it was in the
OFF position, he answered as follows (Tr. 69):
·
No. That particular switch, if you know what to look
for on there, I don't think you got any worries at all. If
you know what to look for. It is designed in such a manner
that you can see the working parts in there and if that
knife doesn't drop down out of there, you better stay out.
When asked whether the fuse knife could hang up and not completely close
when the switch was in the OFF position, he answered: "I'm sure that there
is a possible [sic] something might go wrong. It's not a hundred_ percent".
If two of the knives closed and the other one did not, he indicated that
"you are going to get poked on the one that the knife didn't drop down" (Tr.
70). When the fuse box switch is in the ON position, the circuit coming into
the box would complete itself by going through all of the fuses and out to the
load, and if the switch is OFF, current stops at the point where it enters tne
top of the box at the first fuse and there is no completed circuit through the
box since the current would stop at that point (Tr. 71). Mr. McKinnon stated
that in his capacity as safety director he always. strives to educat~ his
personnel to use proper safety procedures in their work, and that in dealing
with the different types of switchboxes in the plant he would prefer that
they use fuse tongs when fuses are changed out, but that the switchbox in

3577

question is not the type of box where this is required, and·when one is
"troubleshooting" a box he may not have tongs readily available and he would
simply reach in and remove a fuse (Tr. 72).
Findings and Conclusions
Fact of Violation
The citation in this case concerns a Trumb.i1130-amp, 450-volt fuse
interlock switch box located at respondent's plant garage. The bo~ serves
as the only source of electrical power to an overhead crane located nearby
in the garage through which electrical energy passes to service the crane •
.l'he critical question presented is whether the box in question constituted
an energized circuit on the day the citation issued. Petitioner takes the
position that while the box may have been disconnected and deenergized at
the point where the power cable enters the top of the box where it is normally connected to the first fuse inside the box, the failure to deenergize and lock out the box at the main plant power switch constituted a
deenergization of a portion of the circuit but not of the entire circuit
itself. Since a portion of the circuit was still energized at the time the
fuse was pulled and replaced by hand, the petitioner asserts that the situation presented a potential danger in the event of a mechanical failure in
the box itself. In short, petitioner's view is that the entire circuit
consisted of a "primary side," consisting of the main power cable which
entered the box at the top, and a "secondary side," which consisted of the
fuses and wiring inside the box. Further, notwithstanding the fact that the
circumstances presented posed an unlikely probability of an actual accident
and that the hazard presented was minimal, petitioner nonetheless maintains
that the failure to deenergize the entire circuit at the plant main power
source constitutes a violation of the cited safety standard (Tr. 9-12).
Respondent takes the position that the term "energy" is defined by
Webster's Third New International Dictionary at pages 751 and 408 as "To
impart energy; make active; to make energetic or v_;_1~orous; to make an electric circuit alive electrically by applying voltage," and "the complete path
of an electric current including any displacement current." Respondent
argues that the box in question is fed by electric current, but that when
the box is opened to expose the inner accessible parts which are within
reach of someone placing their hand into the box, the box is deenergized and
therefore no circuit or flow of current passes through the fuse holders to
the load side of the box. Conceding that there is current to the backside
of the box, respondent asserts that any access to this area is protected by
insulation and a person cannot be electrically shocked by the current flow
itself, and suggests that the standard on its face provides an exception
which states "unless equipnent and techniques especially designed to prevent
electrical shock are provided and used for that purpose" (Tr. 12-13). In
this regard, respondent asserted that the box in question was specifically
purchased and installed to provide maximum protection to personnel and that
one cannot have access to the inside of the box unless the switch is off
and covered up, and that at the time the fuse was pulled·by hand the circuit

3578
-·-·---··------------

was deenergized through the mechanical function of the box itself and that
testing of the box. at the time the citation issued established that fact
(Tr. 15-16).
Petitioner's initial view of the language of the standard, which provides
for an exception, was that only fuse tongs or similar devices for removing and
replacing fuses are acceptable and that MSHA would object to the existence of
any mechanism within the box itself as an absolute defense to the standard.
As an example, MSHA counsel stated that in the event of a mechanical failure
in the box an employee opening it may not notice that the "knives" behind the
fuses had not disengaged and that this presents a chance that the employee
will be shocked (Tr. 15). However, during closing arguments, counsel candidly
admitted that while the first phrase of the language of section 56.12-36 is
direct and absolute in that it proscribes the removal of fuses by hand, the
remaining portion dealing· with an exception which states "unless equipment
and techniques especially designed to prevent electrical shock are provided
and used for such purposes" is ambiguous (Tr. 84).
On the facts presented in this case, it could be argued that the switchbox in question is engineered in such a fashion as to provide maximum safety
protection. The manufacturer's specifications (Exh. R-3), reflect that the
box contains some rather sophisticated interlocking safety devices, including
a locking mechanism that locks the switch into a full OFF position when activated, has visible fuse contact blades, and is enclosed in a heavy gauge steel
container provided with fixtures to facilitate padlocks. In addition, while
it is true that the voltmeter test conducted by Mr. Stapley and Mr. McKinnon
(Exh. R-5), was conducted sometime after the citation issued, the fact remains
that the test was conducted on the identical box cited and it confirmed that
access to the fuses cannot be made unless the switch is in the OFF position,
and in that position, the voltage meter indicated no voltage when checked
from phase-to-phase and to ground on the load side.

The first question to be addressed is whether or not the switchbox
mechanism in this case, while in the OFF position, constitutes an energized
circuit within the meaning of the standard. Respondent's position is that
under the definition of an electrical energized circuit, a switchbox which
is turned off simply is not an energized circuit, even though the power cable
feed line to the top of the box. is energized to that point. Although respondent agrees that the practice of removing fuses by hand is not a good one,
and that as a result of the citation, fuse tongs are now provided wherever
there is an electrical box containing fuses, it still maintains that no
current passes through the box when the cover lid is opened and is in the
OFF position, and the result is that there is no energized circuit within
the box (Tr. 86-87).
A second issue which needs to be addressed is the question of interpretation and application of that part of the standard which seems to provide for
an exception to the requirement that fuse tongs be used when removing and
replacing fuses. The question is whether or not the exception relates to,
or is limited to, methods for removing and replacing fuses and whether the

3579

asserted built-in safety features of the box itself, coupled with the testing
procedures followed by trained electricians, are sufficiently reliable so as
to come within the exception. In this regard, and in response to my questions,
the respondent conceded that the switchbox in question has not been designated
as a "fail-safe" device by MSHA, and neither the inspector or the respondent
were aware of any MSHA approval labels affixed to the box (Tr. 81).
An inherent basic problem presented in this case lies with the ambiguity
of the language used in section 56.12-36 as it relates to the exception and
the requirement for the use of fuse tongs. The term "energized circuit" is
not further defined by the definitions found in section 56.1, and I take
note of the fact that while section 56.12-36, uses the phrase energized
ci~cuit, section 56.12-37, which requires the use of fuse tongs or hotline
tools with no exceptions, does not use the phrase energized. It simply
refers to high-potential circuits without qualification, and "high-potential"
is defined as "more than 650 vol ts", while "low-potential" is defined as
"650 vol ts or less".

The Dictionary of Mining, Mineral, and Related Terms, published by the
U.S. Department of the Interior, 1968 Edition, defines the term "circuit" in
pertinent part as follows at page 210: "A conducting part of a system of
conducting parts through which an electric current is intended to flow. The
course followed by an electric current passing from its source through a
succession of conductors and back to its starting point."
The term "switch" is defined in pertinent part at page 1111 of the
Mining Dictionary as: "[M] echanical device for opening and closing an
electric circuit." The term "fuse" is defined in pertinent part at page 4 71
as: "An overcurrent protective device with a circuit-opening fusible member
directly heated and destroyed by the passage of overcurrent through it."
Upon consideration of the language contained in sections 56.12-36 and
56.12-37, it occurs to me that if these standards are intended to provide protection against accidental electrical shocks or accidents, or to absolutely
require the use of fuse tongs or other mechanical devices when removing or
replacing fuses, it would have been a simple matter for the standards writers
to state that proposition by specifically requiring the use of such mechanical
devices for both high and low potential circuits. However, by including an
exception as part of section 56.12-36, I can only assume that the drafters
of the standards may have believed that a low-potential circuit is not as
critical, in terms of safety as a high-potential circuit, and therefore provided for an exception for the removal and replacement of fuses as long as
"equipnent and techniques especially designed to prevent electrical shock are
provided and used for such purposes." As an alternative, and in order to
dispel any ambiguity that arises from the language of the two standards, I
suppose that the Secretary could have promulgated a standard. requiring that
all power in a mine be turned off when fuses are removed and replaced.

3580

Petitioner offered no expert testimony from any of its electrical personnel to explain the.distinctions made by the standards in question. On the
other hand, respondent's testimony and evidence reflects that company safety
policy and procedure dictates that only trained electricians are authorized
to perform maintenance on electrical equipment such as the box in question.
Aside from the interlocking safety device on the box itself, which automatically triggers an OFF switch when the box cover lid is opened, respondent
asserts that a trained electrician would normally look into the box to
insure himself that the fuse knives are disconnected, and he would also
apply a voltmeter to the box to satisfy himself that there i:S no "live"
current in the box before proceeding to remove a fuse or otherwise perform
maintenance on the box. I conclude that the use of the voltage meter and
the visual inspection procedure by trained electricians is to prevent electrical shock, and if such procedures were used they would fall within the
exception language noted in section 56.12-36. Further, there is an inference in this case that the inspector who issued the citation is in agreement
with my conclusion in this regard since he candidly admitted that had he
observed an electrician checking the box with a voltage meter he would not
have cited him for pulling out the fuse by hand. His concern was the fact
that he observed a non-electrician mechanic doing this without making any
additional tests or observations.
It seems clear to me that the switchbox in question, including the three
fuses and wiring inside the box are incorporated as part of the total electrical circuit providing power to the crane. The path of current within the
circuit is from the main plant power source to the top of the switchbox,
through the fuses and switching circuit inside the box, and out to the load.
It also seems clear to me that the current passing through the completed
circuit may be interrupted in several ways. An overload or mechanical failure
on the circuit would obviously cause a fuse to blow and interrupt the flow of
current. The circuit is also interrupted when the switchbox is turned to the
OFF position and this is accomplished by opening the cover lid to the box.
In its posthearing argtnnents filed August 18, 1980, respondent asserts
that when the fuse box in question is in the OFF position there is
no complete path of electric current and that the box includes a roller
cam action and a multiplying linkage design with a powerful spring action
that always throws to full OFF or ON and that there is no halfway position
because there is no dead center. In these circtnnstances, respondent maintains that since the box is especially designed to prevent electrical shock
and used for that purpose, the exception provided in section 56.12-36 is
applicable in this case and that an energized circuit was not present.
In addition to the foregoing, respondent states that MSHA has accepted
a lock-out procedure wherein respondent is permitted to throw a switch to
the OFF position, lock it out and proceed with repairs since the current
is deenergized. Yet, in this case, MSHA insists that the power must be shut
off at its source in order to have the circuit deenergized. Respondent
fails to perceive any difference as the fuses are deenergized when the interlock doors of the switchbox in question are opened.

3581

Respondent's assertion that it is unreasonable and somewhat inconsistent
to require it to shut off the main plant power source when performing work
or changing fuses in the box is not really the critical issue in this case.
In this regard, I reject the petitioner's argument made during the hearing
that the failure to turn off the main power supply, thereby deenergizing the
complete circuit, including the box and fuses, constituted a violation of
the cited standard. Failure to deenergize or to lock out circuits and
equipnent while performing maintenance work are separate conditions or
practices covered by sections 56.12-16 and 56.12-17, and if the inspector
believed that these sections were violated it was incumbent on him to
specifically cite the respondent accordingly.
The critical issue presented in this case is not the fact that the main
power switch was not turned off, but rather, the fact that an employee was
observed removing and replacing fuses by hand contrary to the stated requirements of section 56.12-36. On the facts presented in this case, it is clear
that the fuses in question were in fact removed from the box by hand and
replaced by hand contrary to the clear prohibition against such a practice.
The critical question is whether the box and fuses constituted an energized
circuit. If the answer to this question is in the affirmative, then the
citation must.be affirmed unless the respondent can establish that "equipment
and techniques especially designed to prevent electrical shock" were provided and in fact used at the time the fuses were pulled and replaced by
hand, thereby making the exception found in section 56.12-36 applicable.
Respondent's reliance on the exception found in section ·56.12-36 is based
on the following factors:
1. The switchbox is manufactured to provide maximum
protection in that the fuses are automatically deenergized
simultaneously when the box is opened, thereby resulting in
the switch being placed in a complete OFF position. With the
switch in this position, the circuit is interrupted and that
portion within the confines of the box itself is "cold" and
completely deenergized.
2. A test conducted on the identical box in question
with a voltmeter confirmed the fact that no current flows
through the box circuitry with the switch in the OFF
position.
3. With the switchbox opened and in the OFF position,
one can visually observe whether the fuse spades are opened
and not engaged, thereby confirming the fact that they are
deenergized.
4. Trained electricians perform maintenance on the
boxes and check them out with voltmeters before attempting
to remove fuses.

3582

After a careful review and consideration of all of the arguments presented in this case,· I conclude and find that the facts presented support a
finding of a violation of section 56.12-36, and the citation is AFFIRMED.
Although the respondent has advanced several meritorious argtunents in support of its case, and particularly with regard to the exception noted in
section 56.12-36, the fact is that at the precise moment Inspector Pappas
observed Mr. Feasal reach in and pull the fuses by hand, none of the aforementioned factors cited by respondent in support of the proposed application
of the exception were present. On the facts presented in this case, it seems
clear that at the time Mr. Feasal pulled the fuses out of the box by hand, he
had conducted no tests with any meters to ascertain whether the box was hot
or cold.
With regard to the test conducted by the respondent subsequent to the
issuance of the citation, the record reflects that the box was tested with a
voltmeter well over a year later and the fact that the tests indicated a
"cold" circuit inside the box is of little value in determining the condition of the box at the time the citation issued. As for the asserted builtin safety features of the box in question, while it is true that it is
engineered in such a way as to provide maximum protection against accidental
electrocution or shock, the fact is that respondent's own testimony indicated that the box is not an absolute failsafe device and that it can malfunction. For example, Mr. Stapley testified that while the box is normally
deenergized when the switch is in an OFF position, it was possible that in
the event of an accident, the fuse bar blades could remain engaged even
with the box door opened, and if this occurred, current would continue flowing through the first engaged fuse. Mr. Stapley also testified that while
the current stopped at the top of the box when the switch was in the OFF
position with the box door opened, there was an area between the switch and
the box itself which remained energized and accessible to a person with
small hands. Mr. McKinnon conceded that someone could conceivably reach
behind this area, but that it would take some effort. And, while he
believed the box in question presented no problems when it was in the OFF
position, he tempered his statement by indicating that this was true only if
one "knew what to look for," and he conceded that it was possible for a fuse
knife to remain open and not fully engage; and that if this occurred the
circuit. through the fuse would stll be "hot." Finally, both Mr. Stapley and
Mr. McKinnon expressed surprise over the fact that a nonelectrician such as
Mr. Feasal would reach in and pull fuses by hand contrary to company policy
and procedure.
With regard to the question as to whether the fuse box in question constituted an "energized circuit" at the time Mr. Feasal was observed pulling
the fuses by hand, on the facts presented in this case it seems clear that
even though the box was opened and the switch was in the OFF position, current
flowed to the top of the box and into ·the small area characterized as somewhat inaccessible between the switch and the box. In the event the fuse
blades failed to disengage, current would continue to flow through the fuses.
The standard, on its face, does not differentiate between a completed and
partial energized circuit, and respondent urges a restrictive interpretation
which would terminate the energized circuit at the point where it enters the

3583

box, while petitioner urges a broad interpretation which would take into
account possible accidents and failures within the box itself, thus permitting the circuit to remain open and completed. On balance, I believe that
petitioner has the better part of the argument, particularly on the facts
and circumstances presented in this case, where a nonelectrician acting on
his own volition, either out of total ignorance or lack of concern for his
own safety, places himself in jeopardy. I believe that the standard was
intended to preclude just such an occurrence.
Negligence
Petitioner conceded that the facts presented in this case do not indicate that the respondent had any prior knowledge concerning Mr. Feasal's
pulling the fuses by hand or that the respondent condoned such a procedure
• by its mechanics when the switchbox was required to be turned off for maintenance purposes. Petitioner suggests that if any negligence were present,
it was minimal (Tr. 78). On the facts and circumstances here presented, I
cannot conclude that Mr. Feasal's unexplained and foolhardy act of reaching
into the box and removing the fuses by hand with no apparent examination of
the fuse knives or testing of the box to make sure that it was in fact "cold"
can be attributed to the respondent. I find that the respondent was not
negligent.
Good Faith Compliance
Petitioner concedes that the citation was abated in good faith by the
respondent (Tr. 78), and I adopt this as my finding in this proceeding.
Gravity
Although one can conclude that the practice of a mechanic, who is not
a trained electrician, reaching into a switchbox to remove a fuse by hand
without conducting any tests to insure that the box is not alive with current is a serious matter. While it has not been established that the
switchbox in question was in fact failsafe, there was a potential, although
somewhat remote, of someone being electrocuted by pulling the fuses by hand
(Tr. 84). Petitioner conceded that it was extremely remote that someone
could have been injured on the day the citation issued (Tr. 85). Even so, I
cannot overlook the testimony of Mr. McKinnon who candidly admitted that the
area behind the box was still energized even though the switch was off, that
it was possible for a mechanical failure to occur which may have prevented
the fuse knives from completely closing, thereby permitting current to continue through the circuit inside the box,-and that a novice who opens the
box without examining it closely to ascertain whether the knives are open or
fails to test it with a voltmeter could be subjected to a potential hazard.
Under these circumstances, I find that the condition cited was a serious violation.
History of Prior Violations
Petitioner conceded that respondent's history of prior violations is a
good one and does not warrant any increased assessment (Tr. 82), and I adopt
this as my finding on this issue.

3584

Size of Business and Effect of Penalty on Respondent's Ability to Remain in
Business
The parties stipulated that respondent is a medium-sized operator and
that the proposed civil penalty assessment will not adversely affects its
ability to remain in business, and I adopt this stipulation as my finding
in this regard.
Penalty Assessment
On the basis of the foregoing findings and conclusions made in this proceeding, a civil penalty of $50 is assessed for Citation No. 368661, June 21,
1978, for a violation of 30 C.F.R. § 56.12-36.

ORDER
Respondent IS ORDERED to pay the civil penalty assessed by me in the
amount of $50 within thirty (30) days of the date of this decision.

·

"'!/.- -

t[: s '--~
{9~~outr

vJ .
,/d.

Administrative Law Judge

Distribution:
Linda Leasure, Attorney, Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East 9th Street, Cleveland,
OH 44199 (Certified Mail)
Ray E. Brandon, National Lime and Stone Company, First National Bank
Building, Findlay, OH 45840 (Certified Mail)

3585

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

DEC 1 1 1900
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. CENT 80-180-M
A/O No. 39-00700-05001

v.
Matson Gravel Pit
DAN NEVILLE, d/b/a
NEVILLE CONSTRUCTION,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S Department of Labor, Kansas City, Missouri, for
Petitioner;
Wilson Kleibacker, Esq., Lammers, Lammers, Kleibacker
& Casey, Madison, South Dakota, for Respondent.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding brought pursuant
to section 110 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq. (hereinafter, referred to as the Act).
The hearing in this
matter---Was held on September 19, 1980, in Brookings, South Dakota.
At the conclusion of the presentation of evidence and oral argument by
the part ies on an issue-by-issue basis, a decision was rendered from the
bench. The decision is reduced to writing in substance as follows, pursuant
to the Commission's Rules of Procedure~ 29 C.F.R. § 2700.65:
My ruling on the issue of the jurisdictional question
concerning Respondent's impact on interstate commerce is as
follows: Section 3 of the Federal Mine Safety and Health
Act of 1977 states at Section 3(d) that 'operator' means any
owner, lessee, or any other person who operates, controls,
or supervises a coal or other mine or any independent contractor performing services or construction at such mine."
Section 3(h)(l) of the Act provides that 'coal or other mine'
means (A) an area of land from which minerals are extracted
in nonliquid form or, if in liquid form, are extracted with
workers underground, (B) private ways and roads appurtenant

3586

by Section 103(a) of the Act. Upon his arrival at the pit
the conditions were obvious and could be seen by a person
without requesting leave of the operator to conduct an
inspection.
After the inspection had been started, the representative of the operator, Mr. Dan Neville, Jr., did
not voice an objection to the inspection or in any way
demand that the inspector leave the property. Although
the inspector did not have a search warrant, he was not
required to have a search warrant under the sections or
the provisions of the Act. The inspector initiated the
inspection strictly in accordance with the provisions of
the Act and the provisions of the regulations promulgated
pursuant thereto.
Respondent's counsel has stated that it was familiar
with the case law with regard to such inspections. This case
law fully establishes the right of the inspector, a representative of the Secretary of Labor, to conduct inspections,
such as the inspection conducted by Inspector Elvestron, without a search warrant. I therefore find that the inspection
by the inspector was an authorized inspection.
Citation No. 334333 was issued on 9-27-79 by MSHA Inspector Allen Elvestron citing a Violation 56.14-1 of Title 30,
Code of Federal Regulations. The condition or practice noted
on the citation was as follows: "The drive unit for the
Simons crusher was not guarded". The testimony adduced at
the hearing has established that the crusher was, in fact,
a Cedar Rapids crusher and not a Simons crusher as alleged.
This does not affect the issue as to whether or not there was
a violation of the mandatory safety standard since more specificity in allegations by MSHA is not required and the Respondent was adequately informed as to the nature of the condition
leading to the citation.
30 CFR 56.14-1 provides as follows: "Mandatory. Gears;
sprockets; chains; drive, head, tail, and takeup pulleys;
flywheels; couplings; shafts; sawblades; .fan inlets; and
similar exposed moving machine parts which may be contacted
by persons, and which may cause injury to persons, shall be
guarded."
The evidence establishes that the equipment against which
the citation was directed did include drive pulleys which are
within the provisions of the mandatory safety standard cited.
The record further establishes that these parts could be contacted by persons and that they could cause injury to persons.

~

•
•
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3589

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The inspector has testified that there was a fence which
he termed a snow fence approximately three and a half to four
feet high, installed as a guard around the equipment. The
hazardous part of the equipment or some of it was approximately five feet high, and the fence was so near the equipment
that it could be contacted by a person in a manner to result
in injury to the person. The snow fence guard was described
as a fence through which laths were woven.
The evidence establishes that the crusher had not been
operated for approximately one month prior to 9-27-79, the
date of the citation, and that the equipment was in the process of being dismantled with the intention of moving it a
short distance away. However, there was nothing to prevent
the crusher from being used.
Since there was a possibility that the machinery could
be operated and that a person could be injured, the inadequate
guarding did constitute a violation of 30 CFR 56.14-1. As
to gravity, I find that although a serious injury might occur,
it was improbable that an injury would occur. The testimony
establishes that the crusher had not been operated for approximately six months before the date the citation was issued,
that the machinery was being. dismantled for movement to a different location nearby; and that when the machinery was in
operation, it was not in a place which was well traveled by
miners or other persons.
The evidence establishes that the operator had made an
attempt to guard the machinery by installation of a fence
around the equipment. The inspector determined 'that this
fence was too close to the equipment and that a person could
be injured due to this proximity of the fence to the equipment.
The condition was abated by moving the fence away from the
equipment a short distance. I am unable to find that this
violation was due to negligence on the part of the operator.
Even though the condition was obvious, there was some judgment
to be exercised as to the best type of guarding to be used
under the circumstances that would allow for maintenance and
the application of belt dressing.
Petitioner has acknowledged that the guarding was changed
and that a new fence was constructed to abate the violation. I
therefore find that the Respondent demonstrated good faith in
attempting to achieve rapid compliance after notification of
a violation.
In consideration of the circumstances of this case and
the application of the statutory criteria, I find that an
appropriate penalty is $36.00. An assessment of $36.00 is
accordingly entered.

3590

The parties proposed settlement of this proceeding with regard to three
citations - Nos. 334334, 334335 and 334336. The settlement terms and assertions in support thereof were given by counsel for Petitioner as follows:
Citation Nos. 334334, 334335, and 334336 are ~onsolidated;
in effect eliminating Citations 334335 and 334336. The penalty
for the refilaining Citation 334334 is raised to the amount set
for the three violations, the prior three violations, those
amounts totaling $100.00. The citations involved, guarding of
the same Cedar Rapids, Iowa, crusher on three separate areas
of that crusher, and that the increased hazard and gravity due
to the combination would warrant the increased fine.
The Secretary and the Respondent agree that the negligence
exhibited was minimal; that the probability of occurrence would
be rated improbable; that the Respondent exhibited good faith
in his attempts to correct the possible hazards created as
listed in the citations now combined; and that the history of
the Respondent is good and warrants the settlement. The
Secretary believes that the settlement reached is in the
interest of the Mine Safety and Health Act of 1977.
The settlement was approved at the hearing as follows:
The agreed upon settlement is approved. It is found in
consideration of the circumstances of this case and of the
statutory criteria to be applied under the Act that a penalty
of $100.00 is appropriate. A monetary penalty of $100.00 is
therefore entered.
Respondent is ordered to pay petitioner within 30 days of
the date of this order the sum of $136.00.
At the conclusion of the hearing, counsel for Petitioner acknowledged
receipt from Respondent the sum of $136 in full payment of the assessed
penalties. In view of the payments of the assessed penalties, the abovecaptioned proceeding was thereupon dismissed.
ORDER
It is ORDERED that the bench decision and approval of settlement rendered
in the above-captioned proceeding is hereby AFFIRMED.
It is further ORDERED that the above captioned proceeding is hereby
DISMISSED.

Forrest E. Stewart
Administrative Law Judge

3591

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106
(Certified Mail)
Wilson Kleibacker, Esq., Lammers, Lammers, Kleibacker & Casey,
108 North Egan, P. o. Box 284, Madison, SD 57042 (Certified Mail)

3592

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

DEC 1 5 1980
Complaint of Discrimination

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF LESTER N. SIMMONS,
Complainant

Docket No. YORK 80-86-DM
Balmat No. 4 Mine

v.
ST. JOE ZINC COMPANY,
Respondent
FINAL ORDER
Pursuant to the attached decision and order, the parties have
agreed that the amount of back pay due complainant is $78.12 plus interest
at 8% from December 7, 1979 to the date of payment. Respondent also
requests reconsideration of the penalty on the ground that this was an
inadvertent, first offense not likely to be repeated. Based on an
independent evaluation and de novo review I find settlement of the
back pay claim in the amoun~proposed is fair, equitable and in accord
with the purposes and policy of the Act. I further find that in view of
the mitigating circumstances shown the amount of the penalty should
be reduced to $50.00.

1-

l
\

Accordingly, it is ORDERED that on or before Wednesday, December 24,
1980, respondent pay complainant the back pay agreed upon, $78.12
plus interest at 8% to date of payment. It is FURTHER ORDERED that
on or before the same date the operator
y a penalty of $50.00 for the
violation found.

Distribution:
Deborah B. Fogarty, Esq., U.S. Department of Labor, Office of the Solicitor,.
1515 Broadway, New York, NY 10036 (Certified Mail)
Sanders D. Heller, Esq., 23 Main St., Gouverneur, NY 13642 (Certified Mail)

3593

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

October 28, 1980

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

CG:r.plaint of Discrimination
Docket No. YORK 80-86-DH

On behalf of:

Balmat No. 4 Mine

LESTER N. SIMMONS,
Complainant

v.
ST. JOE ZINC COMPANY,
Respondent
DECISION AND ORDER
This is a discrimination complaint brought pursuant to section 105(c)(2)
of the Federal Mine Safety and Health Act,~ amended, 30 U.S.C. § 815(c)(2),
on behalf of Lester N. Simmons, a miner employed at the St. Joe Zinc Company.
The operator moves for summary decision on the ground there is no genuine
issue of fact material to the question of liability, and that it is entitled
as a matter of law to an order dismissing the complaint.

The Solicitor, on

behalf of the Secretary and the complainant, opposes the motion on the ground
there are genuine disputes as to facts material to respondent's liability,
but that if there are not, complainant is entitled as a matter of law to an
order directing payment of the compensation claimed.

3594

Based on an independent evaluation and de ~ review of the circumstances, I find the following facts material to liability are undisputed, !/
and that complainant is entitled as a matter of law to recover.
Undisputed Facts
During the week of December 3, 1979, comp~ainant Lester N. Simmons was
employed at the St. Joe Zinc Company's Balmat No. 4 Mine, and was vicepresident, chairman of the safety cot:llllittee and the designated safety and
health representative of Local 3701, United Steelworkers of America (Simmons

1/ Counsel for the Secretary asserts there are factual differences which
preclude a summary decision in this matter. A careful review of the record
discloses, however, that the factual disputes cited are not material to the
question of liability, and are relevant, if at all, only to the quantum of
relief.
The Solicitor claims that Mr. Simmons cleaned 11 toilets each week as
part "of his usual duties (Simmons Affidavit at 6, 7), whereas respondent
claims Mr. Simmons actually cleaned only 10 toilets each week since the
toilet located at 1700 Sylvia Lake has been inaccessible since July 16,
1979 (Kreider Affidavit). The operator did pay Mr. Simmons for 11 toilets
each week, but the superintendent claims he was unaware that Mr. Simmons
claimed to be cleaning the toilet at 1700 Sylvia Lake since he "did not
closely examine [the] list, but gave it a.casual glance" (Kreider Affidavit).
Another factual dispute cited by the Solicitor concerns the number of
hours for which Mr. Simmons was actually paid during the week of December 3,
1979. Mr. Simmons states he was paid for 37 hours that week because he
spent 3 hours on union business on Monday, December 3, 1979 (Simmons
Affidavit at 16). Respondent's motion states that Mr. Simmons was paid for
40 hours that week. There is no actual dispute, however, since respondent's
own pay records (Exh. 4 to Secretary's Opposition) disclose complainant's
statement is correct. Respondent has not challenged its own records.
J
Neither of these disputes are material to the question of liability,
and the only actual dispute, i.e., whether complainant regularly cleaned
I 10 or 11 toilets, is material-;-if at all, only to the quantum of relief.
It is conceivable that if it is proven Mr. Simmons only cleaned 10 toilets
the operator may have an equitable defense of unclean hands as to the
compensation claimed for the 11th toilet. If necessary, the parties will,
of course, be heard on this issue.

3595

Affidavit at 11).

He was classified as an oiler-tool nipper, and was com-

pensated at the rate of $6.25 per hour (Simmons Affidavit at 2, 3).

For the

past 20 years, the responsibilities of oiler-tool nippers have included
the cleaning of toilets (Answer to Interrogatory No. 12) and for at least
4 years the oiler-tool nippers have received 1.25 hours of pay at their base
rate for each toilet cleaned per week (Answer to Interrogatory No. 10).
th~

At

end of each week, Mr. Simmons would send a list of the toilets he claimed

to have cleaned to the mine superintendent (Simmons Affidavit at 6, 7).
A regular inspection of the entire mine pursuant to section 103(a) of the
Mine Act was conducted by MSHA during the period of November 26, 1979, through
December 10, 1979.

On Monday, Tuesday and Wednesday, November 26, 27 and 28,

1979, Mr. Simmons accompanied the inspection party as designated walkaround
representative.

On Thursday and Friday, November 29 and 30, 1979, he per-

formed his normal work assignments including his sanitation duties.

His pay

for that week included the usual amount attributable to toilet cleaning
(Exh. 3 to Secretary's Opposition).
On Monday, December 3, 1979, Mr. Simmons spent 5 hours at his normal work
duties, and 3 hours on union business for which he was not paid (Simmons
Affidavit at 13, Exh. 4 to Secretary's Opposition).

On Tuesday, December 4,

1979, he spent 8 hours in mine-rescue training for which he was paid (Simmons
Affidavit at 14, Exh. 4 to Secretary's Opposition).

On Wednesday, December 5,

1979, he spent 8 hours greasing machinery for which he was paid (Simmons
Affidavit at 15).

On Thursday and Friday, December 6 and 7, 1979, he a~com-

panied two MSHA inspectors as designated walkaround representative (Simmons
:;

3596

Affidavit at 12).

Mr. Simmons did not clean any toilets that week, and he

was paid for a total of 37 hours rather than the 50-3/4 hours he claims was
owed him (Simmons Affidavit at 16, 17; Exh. 3 to Secretary's Opposition).
Discussion

On April 21, 1980, the Secretary of Labor filed this complaint alleging
respondent interfered with the exercise of the statutory rights of Mr. Simmons
as a representative of the miners in violation of section 105(c)(l) of the
Act.

The act of discrimination alleged is the operator's refusal to pay com-

plainant his full weekly salary as a result of his spending 2 days as designated walkaround representative on a regular inspection of the mine pursuant
to section 103(a) of the Act.

Complainant prays that the operator be ordered

to pay the amount of compensation withheld, $85.94, with interest at 8 percen~;

that respondent expunge any and all references to the incident from

complainant's work records; and that respondent be assessed an appropriate
civil penalty for its interference with complainant's exercise of his
statutory rights.
At issue in this litigation is the proper construction of the requirement
contained in section 103(f), 30 u.s.c.

§

813(f), of the Act that a designated

walkaround representative "shall suffer no loss of pay during the period of
his participation in the inspection." l:_/

Complainant contends that the plain

ll

Section 103(f), 30 u.s.c. § 813(f), of the Act provides:
"Subject to regulations issued by t_he Secretary, a representative of th~
operator and a representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a), for the purpose of aiding such inspection and to

3597

l

language of the statute requires he be paid all his usual weekly compensation
without regard to his failure to carry out all his assigned duties~

He asserts

that.cleaning toilets was an integral part of his job, and has been part of
the regularly assigned duties of oiler-tool nippers for over 20 years.

He

argues that the fact his employer took into account the number of toilets
cleaned each week in calculating his pay is irrelevant since the statute
requires he be paid all the remuneration he would have received but for the
time spent in the exercise of his walkaround rights.

Complainant relies on

Consolidation Coal Company, 2 FMSHRC 1056 (May 5, 1980), in support of his
position.

In that case, a scraper operator was prevented from performing

grade 5 overburden removal work when he was assigned walkaround duties.

As

a result of missing the premium rate work, he was paid at the grade 3 or
regular rate.

The operator argued that the wage agreement contempl~ted that

the higher rate need only be awarded when the specified work is actually
performed.

The judge found, however, that the miner was unfairly penalized

for exercising his walkaround rights, and that the failure to compensate him
fn. 2 (continued)
participate in pre- or post-inspection conferences held at the mine. Where
there is no authorized miner representative, the Secretary or his authorized
representative shall consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such representative of miners who
is also an employee of the operator shall suffer no loss of pay during the
period of his participation in the inspection made under this subsection. To
the extent that the Secretary or authorized representative of the Secretary
determines that more than one representative from each party would further
aid the inspection, he can permit each party to have an equal number of such
additional representatives. However, only one such representative of miners
who is an employee of the operator shall be entitled to suffer no loss of pay
during the period of such participation under the provisions of this subsection. Compliance with the subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act." (Emphasis
added.)

3598

at the rate applicable to the duties he would otherwise have performed was
an act of discrimination within the meaning of section lOS(c) of the Act.
Respondent claims that toilet cleaning is done on a piecework basis for
which miners receive bonus pay for each toilet cleaned, and that therefore
it is required to pay Mr. Simmons only his regular hourly rate for the time
spent accompanying the inspectors.

The operator maintains it would be unfair

to require it to pay him for housekeeping duties not actually performed since
it had to pay another miner to clean the toilets, ~nd since Mr. Simmons could
have rearranged his work schedule to clean toilets on other days. 1/
Whether or not Mr. Simmons could have rearranged performance of his
sanitation duties is immaterial since his toilet-cleaning duties were as much
a part of his regularly assigned responsibility as his equipment maintenance
work.

Thus, while complainant was regularly employed to work a 40-hour week

at both his equipment maintenance and sanitation duties he was compensated
for 53-3/4 hours.

The sanitation duties were not extra or piecework performed

in addition to his regular 40-hour work week, but were performed as part of
that regular 40-hour work week (Answer to Interrogatory No. 4).

1/

Obviously,

The operator argues that although it was Mr. Simmons' usual practice to
clean the toilets on Thursdays and Fridays, he had done so on other days on
three prior occasions and that "there was no absolute routine which prevented
Mr. Simmons from cleaning the toilets on days other than Thursday and Friday"
(Kreider Affidavit). Mr. Simmons claims, however, that "he cleaned the
, toilets on Thursday and Friday of each week since these days.were most con/ venient for David Lane, who operated the underground utility vehicle and
; drove him to the various toilets in the mines and carried the emptied waste
~ products to the surface" (Simmons Affidavit at 9).
Complainant also requests
that official notice be taken that the three prior occasions on which he
cleaned toilets on other days were all in weeks which had holidays falling
on Thursday or Friday. For the reasons stated in the text, this dispute is
irrelevant to the disposition of the motion.

3599

when complainant was performing his sanitation duties he was not performing
his equipment maintenance work.

No one has suggested that had Mr. Simmons

chosen to clean toilets rather than maintain equipment he should be docked
pay for his failure to do maintenance work.

If nonperformance of his main-

.3if

tenance duties is excused by the walkaround provision, then nonperformance

a
.t.:?

of his sanitation duties must likewise be excused.

,~
->:

That the requirement of section 103(£) that miners exercising their walk-

-~

-~

around rights "shall suffer no loss of pay" means they are to receive their
customary and usual compensation is made abundantly clear in the legislative
history.

In the Senate's consideration of the Mine Act, miner participation

in inspections was recognized as an essential ingredient of a workable safety
plan.

Senator Javits explained the critical importance of the walkaround

right as part of a comprehensive scheme to improve both safety and
productivity in the mines:
First, greater miner participation in health and safety
matters, we believe, is essential in order to increase miner
awareness of the safety and health problems in the mine, and
secondly, it is hardly to be expected that a miner, who is not
in business for himself, should do this if his activities
remain uncompensated.
In addition, there is a general responsibility on the
operator of the mine imposed by the bill to provide a safe
and healthful workplace, and the presence of miners or a
representativ.e of the miners accompanying the inspector is
an element of the expense of providing a safe and healthful
workplace * * *· But we cannot expect miners to engage in
the safety-related activities if they are going to do without any compensation, on their own time. If miners are going
to accompany inspectors, they are going to learn a lot about
mine safety, and that will be helpful to other employees and
to the mine operator.

3600

f

In addition, if the worker is along he knows a lot about
the premises upon which he works and, therefore, the inspection can be much more thorough. We want to encourage that
because we want to avoid, not incur, accidents. So paying
the worker his compensation while he makes the rounds is
entirely proper**.*• We think safe mines are more productive mines. So the operator who profits from this production should share.in its cost as it bears directly upon the
productivity as well as the safety of the mine * * *· It
seems such a standard business practice that is involved
here, and such an element of excellent employee relations,
and such an assist to have a worker who really knows the
mine. property to go around with an ins.pector in terms of
contributing to the health and safety of the operation, that
I should think it would be highly favored. It seems to me
almost inconceivable that we could ask the individual to do
that, as it were, in his own time rather than as an element
in the operation of the whole enterprise.
Committee Print, LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH
ACT OF 1977, 95th Cong., 2d Sess. (July 1978) at 1054-1055 (hereinafter cited
as Leg. Hist.)
Senator ~illiams, Chairman of the Committee on Human Resources, also discussed the importance of the walkaround right in the context of improving
safety~consciousness

;

on the part of both miners and management:

It is the Committee's view that such participation will
enable miner·s to understand the safety and health requirements
of the Act and will enhance miner safety and health awareness.
To encourage such miner participation it is the Committee's
intention that the miner who participates in such inspection
and conferences be fully compensated by the operator for the
time thus spent. To provide for other than full compensation
would be inconsistent with the purpose of the Act and would
unfairly penalize the miner for assisting the inspector in
performing his duties.
Leg. Hist. at 616-617.
Since the purpose of the compensation provision of the walkaround right
is to encourage miner participation in inspections, I must conclude that a

3601

practice which has the effect of discouraging such participation is clearly
contrary to the intent of the statute.

Consolidation Coal Company, supra.

Accordingly, I find that the operator's refusal to pay Mr. Simmons his full
compensation as a result of his participation in the regular inspection on
Thursday and Friday, December 6 and 7, 1979, is contrary to the r~quirement
of the statute and constitutes an act of discrimination.

-

'

Conclusions of Law
1.

Section lOS(c)(l), the discrimination provision of the Act, which

prohibits any form of interference with the exercise of the statutory rights . }

of a miner or representative of miners, is a proper vehicle for review of an

::;.
~·=

operator's refusal to fully compensate a representative of miners pursuant to ~
section 103(f).
·~

2.

t

The requirement of section 103(f) that a miner who exercises his walk~

around rights "shall suffer no loss of pay" contemplates that he will receive
his regular, usual compensation without regard to whether he completely
carried out all his normal duties.
3.

Complainant as a matter of law is entitled to recover the back pay

wrongfully withheld by the operator.
4.

A civil penalty of $100 for the violation of section 103(f) found is

consistent with the purposes and policy of the Act.

3602

·-

ORDER
WHEREFORE. IT IS ORDERED THAT:
1.

Jurisdiction is reserved over this matter until the question of the

amotmt of back pay due complainant is resolved.
2.

On or before Friday. November 14, 1980, the parties will confer and

agree upon the amotmt of the back pay due complainant, Lester N. Simmons,
with interest at 8 per9ent from December 7, 1979, or file herein their
separate proposals with respect to the amount due.
3.

Ten (10) days after a final order issues with respect to back pay,

respondent will pay a· civil penalty for the violation found of $100.
4.

The operator cease and desist from any conduct calculated to have a

chilling effect on the exercise of the walkaround rights guaranteed miners by

'.

the Mine Safety I.aw.
5.

Respondent expunge all references to this incident from complainant's

employment records.
6.

Within 15 days from the date of this order, respondent post a copy of

this deciSion and order on a bulletin board at the mine where notices to
~iners

posted there, unobstructed and

are normally placed, and shall

I protected from the weather, for a

3603

Distribution:
Sanders Heller, Esq., 23 Main St., Gouverneur, NY 13642 (Certified Mail)
Deborah B. Fogerty, Esq., U.S. Department of Labor, Office of the Solicitor,
1515 Broadway, New York, NY 10036 (Certified Mail)

..
!

3604

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

DEC 1 6 1990
)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-233-M

)

v.

)

A/O CONTROL NO. 02-000954-05002

)

JAQUAYS MINING CORPORATION,

)
)

Respondent.

MINE:

JAQUAY'S MILL

)
)

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

APPEARANCES:
Mildred L. Wheeler, Esq., Office of the Solicitor,
United States Department of Labor,450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
for the Petitioner,
H. R. Gannan, Esq., 635 N. Craycroft, Suite 101, Tucson, Arizona 85711
for the Respondent.
Before:

Judge John J. Morris
DECISION

The Secretary of Labor, on behalf of the Mine Safety and Health
Adminisiration (MSHA), charges respondent with a violation of 30 CFR
57.6-1, a regulation adopted under the authority of the Federal Mine
Safety and Health Act, 30 U.S.C. 801, et. seq. Respondent denies the
violation and contests the appropriateness--of the penalty.
Respondent also asserts that the explos~ves in question did not belong
to it and, therefore, MSHA had no jurisdiction over them. Additionally,
respondent asserts that the Bureau of Alcohol, Tobacco and Firearms rather
than MSHA has jurisdiction over explosives. Jacquays also contends that
the MSHA assessment form attached to the petition for civil penalty is
prejudicial. Based on these contentions, respondent has moved to dismiss
the case.
ISSUES
1. Whether MSHA ·had the authority .to issue a citation concerning
explosives which belonged to another but were located on respondent's
premises.
2.

1/

Whether MSHA had jurisdiction over the explosives in question.

57.6-1 Mandatory. Detonators and explosives other than blasting
agents shall be stored in magazines.

3605

3. Whether the attachment of the MSHA assessment form to the Secretary'•
petition was prejudicial to respondent.
4.

Whether respondent violated the Act.

5.

The determination of a penalty, if a violation is found
FINDINGS OF FACT

Citation No. 379250 was issued because of the alleged failure of
respondent to properly store detonator cords in a magazine.· The following
-facts are uncontroverted.
1. Thirty boxes of detonator cords were.stacked by the walkway which
leads from the mill office to the mill (Tr. 29).
2.

The boxes were marked as explosives (Tr. 32, 47).

3.

The boxes of detonators were on the premises of respondent (Tr. 29, ·

4.

Miners use the walkway where the detonator cords were stacked (Tr.

-· ~-:::

92).
30).
DISCUSSION
Respondent states that the explosives were not owned by Jacquays Minina
Corporation, but were the property of B. W. Jacquays Equipment Company (Tr.
92). This fact, if true, does not affect the validity of the citation. Thi
explosives were at respondent's mine and were not stored in a magazine. Thi
danger created by the detonators stacked near a walkway was not lessened b7
the fact that they may not have belonged to respondent. Respondent
certainly had control over the activities which took place at its mine and,
therefore, could have stored the detonators in a magazine or had them
removed from the mine area.
.. '·
MSHA has jurisdiction to inspect the mine of respondent. The mill
office and any walkway leading from it are part of Jacquays' mine. 30 use
802 § 3{h){C). The standard requires that explosives at a mine be stored bl
a magazine. Respondent failed to comply with the regulation.
Jacquays also asserts that the Bureau of Alcohol, Tobacco, and Firearat
(ATF) has jurisdiction over the explosives rather than MSHA. A memorandua
of understanding submitted by the Secretary and testimony at trial shows
that MSHA has an agreement with ATF which gives MSHA jurisdiction over
explosives on mine property (Tr. 111, Exhibit P-3).
Respondent's final contention in support of a motion to dismiss is that
the attachment of MSHA' s proposed penalty form {Exhibft A) to the propoul
for assessment of civil penalty is prejudicial to its case. I disagree.·
The Secretary is

3606

required to include a proposed penalty for every citation in issue, 29 CFR
2700.27(c). The MSHA form is merely an attachment .to the proposal for
assessment of pena,lty which explains the criteria considered by MSHA in
making its penalty determination. The Secretary must still prove at trial
the six criteria which must be considered by the Commission before it
assesses a penalty. The Commission is not bound by the Secretary's
proposal, nor is it required to follow-the formula for assessing penalties
established by the Secretary. 29 CFR 2700.29(b). Secretary of Labor v.
Co-op Mining Co., FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356.
Respondent contests the amount of the penalty as proposed by MSHA.
Having reviewed the Secretary's criteria upon which the penalty was proposed
and the record, I find that there is no evidence to support MSHA's
calculation of respondent's history of violations. Accordingly, the penalty
should be reduced. Further, considering all the criteria in 30 USC 820(i)
I assess a penalty of $100 for the violation.
CONCLUSIONS OF LAW
For the reasons stated above, I conclude that a violation of 30 CFR
57.6-1 did occur. MSHA has jurisdiction to issue a citation for this
violation. Respondent's motion to dismiss is denied.
ORDER
Based on the foregoing findings of fact and conclusions of law, I enter
the following order:
Respondent's motion to dismiss is denied. Citation No. 379250 is
affirmed and the penalty is reduced to $100.00.

Law Judge
Distribution:
Mildred L. Wheeler, Esq., Office of the Solicitor,
United States Department of Labor, 450 Golden Gate Avenue, Box 36017,
San Francisco, California 94102
H. R. Cannan, Esq., Attorney at Law, 635 North Craycroft,
Tucson, Arizona 85711

3607
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, COLORADO 80204

DEC 1 6 1900

)

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

)
)

CIVIL PENALTY ACTION

)

Petitioner,

)

DOCKET NO. DENV 79-458-M

)

v.

)
)

JAQUAYS MINING CORPORATION,

ASSESSMENT CONTROL NO.
02-00951-05002

)
)

Respondent.

EL DORADO MINE

)
)

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

APPEARANCES:
Mildred L. Wheeler, Esq., Office of the Solicitor, United States
Department of Labor, San Francisco, California
for the Petitioner,
H. R. Gannan, Esq., Attorney at Law, Tucson, Arizona
for the Respondent.
Before:

Judge John J. Morris
DECISION

The Secretary of Labor on behalf of the Mine Safety and Health
Administration (MSHA) has charged the respondent with a violation of
30 CFR 57.13-211 a regulation issued under the authority of the
Federal Mine Safety and Health Act, 30 U.S.C. 801 et. seq. (the Act).
In addition to denying the violation and the appropriateness of the
penalty the respondent moved to dismiss the case on procedural grounds.
Respondent contends that the period of time between the issuance
of the citation and the hearing was unreasonable. Respondent also asserts
that the petition for assessment of a civil penalty filed by the Secretary
failed to allege that respondent's mine affects interstate commerce.
Respondent argues that these procedural flaws compel the dismissal of this
case. Respondent also asserts that the attachment of MSHA's assessment
form to the petition for a penalty is prejudicial, and therefore, the case
should be dismissed.
1/

57.13-21 Mandatory. Except where automatic shutoff valves are used,
safety chains or other suitable locking devices shall be used at connections to machines of high-pressure hose lines of 3/4-inch inside
diameter or lar~er, and between high-pressure hose lines of 3/4-inch
diameter or lar.ger, where a connection failure would create a hazard.

3608

..

-

ISSUES
1. Whether the lapse of t~me between the issuance of the citation and
the hearing was unreasonably long and, if so, whether such a delay warrants
a dismissal of the case.
2. Whether the failure to include a jurisdictional statement in the
petition for assessment of a civil penalty removes this case from the
jurisdiction of the Commission.
3. Whether the attachment of the MSHA assessment form is prejudicial
to respondent.
4.

Whether respondent violated the Act.

5.

The determination of a penalty, if a violation is found.
DISCUSSION OF RESPONDENT'S MOTION TO DISMISS

Respondent contends that the lapse of fifteen months between the time
the citation was issued and the hearing date is an unreasonable delay in
violation of the Act. Respondent asserts that it was the duty of the
Secretary to provide a hearing at an earlier date.
There are several procedural steps to review in order to determine if
the Secretary is guilty of laches. The interim rules of procedure govern
the relevant actions of the petitioner since the petition was mailed to
respondent prior to the effective date of the present rules of procedure.
See 29 CFR 2700.84 of the present rules of procedure.
Pursuant to the Act, the penalty is to be proposed a "reasonable time"
after the inspection. 30 U.S.C. 815(a). The Secretary issued its proposed
assessment on March 5, 1979, approximately two months after the date of the
inspection.
Interim rule 2700.24(a) required the Secretary to file a petition for
assessment of a civil penalty "promptly" after receipt of respondent's
notice of its intent to contest the proposed penalty. MSHA received
respondent's notice on March 9, 1979. The petition was filed on July 31,
1979, four and a half months later.
It was not the intention of Congress that any delay should prevent the
execution of the Act by the Secretary. The discussion by the Senate
Cormnittee of the requirement that penalties be promptly proposed provides
guidance in the enforcement of filing deadlines against the Secretary.
To promote fairness to operators and miners and
encourage improved mine safety and health generally,
such penalty proposals must be forwarded to the operator
and miner 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 proceeding •. Senate Report 95-181,
95th Cong. 1st Sess. 34 (1977).

3609

Courts have held that the necessity for enforcement of safety and
health standards outweighs any procedural deficiencies concerning filing
requirements, unless the operator is prejudiced by such delays. Todd
Ship ards Corp. v. Secretary of Labor and OSHRC 566 F.2d 1327 {9th Cir.
1977 . Stephenson Enterprises, Inc., v. Secretary of Labor and OSHRC 5~8
F.2d 1021 (5th Cir. 1978); Jensen Construction Co., v. OSHRC and Secretar
of Labor 597 F.2d 246 {10th Cir. 1979 • Respondent failed to present any
evidence that it was prejudiced by the delay in the proposal of the penalty
or in the filing of the petition.
Respondent also asserts that the Secretary had a duty to have the case
actually brought to a hearing prior to March 20, 1980. After the Secretary
files his petition, it is the duty of the Review Commission to schedule a
hearing. Unless a party moves for an expedited hearing, the case is heard
at a time convenient to the administrative law judge and the parties. As
with all adjudicatory bodies, the caseload does not always allow for the
immediate trial of any particular case.
Respondent did not request an expedited hearing, therefore, the trial
was set at the earliest convenient date. For the reasons stated above,
respondent's motion to dismiss based on laches is denied.
Respondent also asserts that the failure of the Secretary to include a
statement of Jacquays' effect on interstate commerce in the petition for
assessment of a penalty removes the case from the jurisdiction of the
Commission. At the time the petition was prepared and mailed, the interim
rules of procedure were in force. These interim rules did not contain a
provision comparable to the present rule 2700.S{a) which requires the
jurisdictional statement referred to by respondent. The Secretary was in
compliance with the rules of procedure. Accordingly, respondent's motion to
dismiss based on the above contention is denied.
Respondent's final argument in support of a motion to dismiss is
that the attachment of MSHA's proposed penalty form (Exhibit A) to the
petition for civil penalty is prejudicial to its case. I disagree. The
Secretary is required to include a proposed penalty for every citation.
29 CFR 2700.24(b) (Interim rules). The MSHA form is merely an exhibit
which explains the criteria considered by MSHA in making its penalty
determination. The Secretary must still prove at trial the six criteria
which must be considered by the Commission before it assesses a penalty.
The Commission is not bound by the Secretary's proposal, nor is it required
to follow the formula for assessing penalties established by the Secretary.
29 CFR 2700.27(c). (Interim rules) Sec. of Labor v. Co-op Mining Co.,
FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356.

3610

FINDINGS OF FACT
The Secretary charges respondent with a violation of 30 CFR 57.13-21.
I find the following facts to ba supported by the evidence.
1. The connection between the pressure (bull) hose and compressor
machine number five did not have a safety chain (Tr. 53-61, 98).

2.

Automatic shutoff valves were not in use (Tr. 66).

3. There was.no other suitable locking device being used on the
connection (Tr. 66, 128).

4. The air compressor was under pressure of approximately 80 - 90 lbs.
per square inch (Tr. 54, 110).
67).

5. The inside diameter of the hose was approximately 2 inches (Tr.
The hose itself was 4 1/2 - 5 1/2 feet long (Tr. 61).

6. The connection is inspected daily for air leaks. At this time, the
miner is in close proximity to the connection while the compressor is on
(Tr~ 77, 99).
7. A miner who was servicing the machine was observed by the MSHA
inspector near the connection (Tr. 56).
8. The vibration of the compressor and the change in temperature on
the connection could cause the hose to disconnect from the machine (Tr. 55,
62, 80, 109, 126).
9. There is a danger that if the connection becomes loose the pressure
from the air would cause the hose to whip back and forth which could injure
anyone in the area (Tr. 55, 109).
10. The mine operator was aware of the standard requiring the use of a
safety chain. Two other compressors had safety chains on the same kind of
connection (Tr. 98).
A hazard to the miners was created by respondent's failure to provide a
safety chain across the connection on the number five air compressor
machine. The standard was violated •.
Respondent contests the amount of the penalty as proposed by MSHA.
Having reviewed the Secretary's criteria upon which the penalty was proposed
and the record, I find that there is no evidence to support MSHA's
calculation of respondent's history of violations. Accordingly, the penaltyshould be reduced. Further, considering all the criteria in 30 U.S.C.
820(i) I assess a penalty of $ 46 for the violation.

J
3611

T

CONCLUSIONS OF LAW
For the reasons stated above, respondent's motions to dismiss should be
overruled and the citation affirmed.
ORDER
Based on the foregoing findings of fact and conclusions of law I enter
the following order:
Respondent's motions to dismiss are overruled.
affirmed and a penalty of $46 is assessed.

Distribution:
Mildred L. Wheeler, Esq., Office of the Solicitor,
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
H. R. Gannan, Esq., Attorney at Law,
635 North Craycroft
Tucson, Arizona 85711

3612

Citation No. 376110 is

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

CLIMAX MOLYBDENUM COMPANY,
A Division of AMAX, INC.,
Applicant

DEC 1 6 1980

Application for Review
Docket No. DENV 79-122-M

v.

Citation No. 332535
November 17, 1978

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

Henderson Mine and Mill

ORDER APPROVING STIPULATIONS FOR RESOLUTION OF NOISE
CITATION ON THE BALL MILL AT THE HENDERSON MINE
AND
GRANTING APPLICANT'Sl10TION TO WITHDRAW
APPLICATION FOR REVIEW
Climax Molybdenum Company (Climax) filed an application for review in the
above-captioned proceeding pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977. An answer was filed by the Mine Safety
and Health Administration (MSHA). Thereafter, various orders of continuance
were issued to permit the parties an opportunity to evaluate the feasibility
of potential noise controls.
On November 6, 1980, Climax and MSHA filed a stipulation for resolution
of the noise citation on the Ball Mill at the Henderson Mine. The stipulation
states as follows:
This Agreement is made and entered into by Henderson Mine
and Mill, Climax Molybdenum Company, a Division of AMAX Inc.
(hereinafter "Climax"), and the Department of Labor and Mine
Safety and Health Administration (hereinafter collectively
referred to as "MSHA") and executed in their behalf by their
respective attorneys.
WHEREAS Climax has filed Applications for Review of a
certain citation issued by MSHA, being Citation 332535
(Docket No. DENV 79-122-M), and
WHEREAS as the result of the work done since the filing
of that Application for Review, Climax and MSHA believe that
the above-referenced citation can be resolved without
litigation.

1.

3613

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NOW THEREFORE Climax and MSHA enter into the following ·
agreement:
1. During the course of the examination of ball mill
noise, the Henderson Mine and Mill of Climax has significantly expanded its noise control program for equipment
and facilities at the Henderson Mine and Mill. MSHA recognizes that the Henderson Mine and Mill has developed a
substantial ongoing hearing conservation and engineering
noise control program for the ball mills and the Henderson
Mine and Mill agrees to continue its implementation of that
program.
2. Climax and MSHA are in agreement that the primary
burden· for further developing new quieter milling equipment
at the Henderson Mill should fall upon the manufacturers of
milling equipment. The Henderson Mill has and will continue
to evaluate commercially available potential engineering
noise controls, as manufacturers make them available or as
suggested by MSHA, but will no longer pursue the type of
research and development work which it has done over the
past two years.
3. The Henderson Mill will, as a part of.this settlement, continue to utilize rubber liner materials installed
in ball charging and shaker screens at the Henderson Mill.
4. With respect to the citation itself, the parties
agree that Citation 332535, involving the ball mill operator, will be abated and Climax will pay a penalty of $25.
5. Climax and MSHA agree that their ·personnel wili
continue to communicate regarding developments with respect
to noise control. The extent of time required for in-mill
evaluation of any potential noise control will vary depending
upon the control, the piece of equipment involved, and the
commercial availability of the control. In the future, MSHA
will make a reasonable attempt to advise Henderson personnel
of any new potential engineering noise controls which may be
feasible for use at the Henderson Mill and allow a reasonable
time for in-mill evaluation and implementation of that control, if it is found feasible, before any citations are issued.
It is acknowledged that ultimately Climax and MSHA may disagree as to the feasibility of a particular engineering
noise control. In the event that Henderson personnel are in
the process of or have already evaluated the particular
control referred to them, information regarding the results
of that evaluation will be made available to MSHA personnel
upon request.

3614

On November 20, 1980, Climax filed a motion to withdraw the application
for review. The motion states as follows:

COMES NOW Climax Molybdenum Company, a Division of Ai.'IAX
Inc., by and through its undersigned attorneys, and moves that
the Court approve the Stipulation for Resolution of Noise
Citations on the Ball Mills at the Henderson Mine, direct
that the above-captioned citation be abated and assessed as
provided in that Stipulation, and dismiss the above-captioned
Application for Review.
As grounds therefor Climax states as follows:

1. As more fully outlined in the Stipulation for Resolution previously filed with the Court, the parties have agreed
after extensive technical study that their differences with
respect to the above-captioned citations can be resolved without the need for lengthy, complex, and expensive litigation.
2. This motion has been discussed with Robert Cohen,
counsel for MSHA, and he agrees that it should be granted.
WHEREFORE, Climax Molybdenum Company respectfully moves
that this Court grant the relief requested herein.
By letter dated Noveniber 28, 1980, the parties were advised that the
agreement to pay a civil penalty, as set forth in paragraph No. 4 of the
November 6, 1980, stipulation, was beyond the scope of an application for
review proceeding, and, accordingly, that one of several alternative courses
of action would have to be followed before action could be taken on the stipu. lation and the motion to withdraw the application for review. In response
thereto, the parties filed a supplemental stipulation on December 9, 1980.
The supplemental stipulation states as follows:
1. With respect to the civil penalty matters set forth
in Paragraph 4 of the Stipulation previously filed, Climax
and the Secretary of Labor agree as follows:
A. MSHA's Office of Assessments has not yet proposed civil penalties for the citation mentioned in Paragraph 4 pursuant to Part 100, Title 30, Code of Federal
Regulations because the citation has not yet been abated.

·.-·;

i

J

B. Upon the Administrative Law Judge's approval
of the Stipulation and Climax's Motion to Withdraw its
Application. for Review, Climax and the Secretary of Labor
wiil follow the following procedures to dispose of the civil
penalty matter~:

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3615

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i.

Counsel for the Secretary will recommend to MSHA's Office of Assessments
that a civil penalty of $25.00 be proposed for Citation 332535 (Docket No.
[DENV] 79-122-M).

ii.

Climax will pay said proposed $25.00
assessment within 30 days after the
civil penalty is assessed by MSHA.

The proposed disposition of this case, as set forth in the stipulations
filed by MSHA and Climax, have been reviewed. It appears that approval of
the stipulations will adequately protect the public interest.
It is understood, in accordance with the agreement set forth in the
December 9, 1980, supplemental stipulation, that upon approval of the
November 6, 1980, stipulation and the granting of the motion to withdraw the
application for review, MSHA will recommend that the Office of Assessments
propose a $25 civil penalty for Citation No. 332535. It is further understood that Climax will pay such civil penalty within 30 days of the date of
assessment. Accordingly, it is considered unnecessary to ·specifically
order the termination or abatement of the citation and the assessment of a
civil penalty.
In view of the foregoing, Climax's motion to withdraw its application
for review is GRANTED. IT IS THEREFORE ORDERED that the stipulations filed
on November 6, 1980, and December 9, 1980, be, and hereby are, APPROVED,
and that the above-captioned proceeding be, and hereby is, DISMISSED.

Distribution:
William F. Schoeberlein, Esq., Charles W. Newcom, Esq., Sherman &
Howard, 2900 First of Denver Plaza, 633 17th Street, Denver, CO
80202 (Certified Mail)
James F. Engelking, Esq., W. Michael Hackett, Esq., and Richard W.
Manning, Esq., 13949 West Colfax Avenue, Golden, CO 80401 (Certified
Mail)
Edward C. Hugler, Esq., and Robert A. Cohen, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Administrator for Metal and Nonmetal Mine Safety and Health,
u. S. Department of Labor
Standard Distribution

3616

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

CLIMAX MOLYBDENUM COMPANY,
A Division of AMAX, Inc.,
Applicant
v.

DEC 1 6 1980

Applications for Review
Docket No. DENV 78-541-M
Citation No. 333624
July 31, 1978

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

Docket No. DENV 78-545-M
Respondent

CLIMAX MOLYBDENUM WORKERS,
LOCAL NO. 2-24410, OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL

Citation No. 331731
July 26, 1978
Docket No. DENV 78-546-M

UNION,

Respondent

Citation No. 332973
July 26, 1978
Docket No. DENV 78-547-M
Citation No. 332974
July 26, 1978
Docket No. DENV 78-548-M
Citation No. 332976
July 27, 1978
Docket No. DENV 78-549-M
Citation No. 333626
July 26, 1978
Docket No. DENV 78-550-M
Citation No. 333627
July 26, 1978
Docket No. DENV 78-551-M
Citation No. 333628
July 27, 1978

3617

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Docket No. DENV 78-552-M

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Citation No. 333629
July 28, 1978

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Climax Mine
ORDER APPROVING STIPULATIONS FOR RESOLUTION
OF NOISE CITATIONS AT THE CLIMAX MINE AND
GRANTING APPLICANT'S MOTION TO WITHDRAW
APPLICATIONS FOR REVIEW
Climax Molybdenum Company (Climax) filed applications for review in the
above-captioned proceedings pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977. Answers were filed by the Mine Safety and
Health Administration (MSHA) and Local No. 2-24410 of the Oil, Chemical and
Atomic Workers International Union (Union).
Thereafter, the parties entered into an agreement to study the feasibility of possible noise controls on the equipment cited in the citations.
Various orders of continuance were issued on this basis.
On November 20, 1980, Climax and MSHA filed a stipulation for resolution
of the noise citations at the Climax Mine. The stipulation bears the signature of Mr. David A. Jones, Jr., who has represented the Union in these proceedings. The stipulation states as follows:

This Agreement is made and entered into between Climax
Molybdenum Company, a Division of AMAX Inc. (hereinafter
"Climax"), and the Department of Labor and Mine Safety and
Health Administration (hereinafter collectively referred to
as "MSHA") and executed in their behalf by their respective
attorneys.
WHEREAS Climax has filed Applications for Review of
certain citations issued by MSHA, being Citations 333624
(Docket No. DENV 78-541-M), 331731 (Docket No. DENV
78-545-M), 332973 (Docket No. DENV 78-546-M), 332974
(Docket No. DENV 78-547-M), 332976 (Docket No. DENV
78-548-M), 333626 (Docket No. DENV 78-549-M), 333627
(Docket No. DENV 78-550-M), 333628 (Docket No. DENV
78-551-M), and 333629 (Docket No. DENV 78-552-M), and
WHEREAS the parties entered an agreement for the study
of feasibility of possible noise controls on equipment
involved in the above-referenced citations on August 16,
1979, and
WHEREAS as a result of that study the parties now
believe they can resolve their differences with respect
to the above-referenced citations without the need of
litigation.

3618

.-~

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NOW THEREFORE Climax and MSHA enter into the following
agreement:
1. During the course of the above-referenced feasibility study, the Climax Mine of Climax has significantly
expanded its noise control program with respect to rock
drills and LHDs at the Climax Mine. MSHA recognizes that
the Climax Mine has developed a substantial ongoing noise
control program with respect to rock drills and LHDs and
the Climax Mine agrees to continue its implementation of
that program._

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2. Climax and MSHA have previously agreed that Climax
will not undergo major capital expenditures to evaluate the
feasibility of cabs or panelling on LHDs, but rather the
Climax Mine will review the results of the Henderson LHD
work at the conclusion of that work. The Climax and
Henderson Mines will continue their cooperation in this
area. The Climax Mine will, as a part of this settlement,
install mufflers on LHDs to the extent there is physical
space available on the machine to do that. Some of the
smaller sized LHDs are so compact that they may not be able
to accommodate a muffler. Climax personnel will inform MSHA
personnel of their findings on this issue as soon as they
have made a determination regarding the availability of
space for installation of a muffler on a retro-fit basis.
The Climax Mine will continue its evaluation of soundabsorption material for use in the falling object protection structure on the LHDs. The parties acknowledge that
it will take until January 1, 1981, to determine whether
space is available and review potential mufflers for use
on these machines and to conclude evaluation of soundabsorption materials. While there is some uncertainty as
to a final installation schedule because of uncertainty as
to availability of as yet unselected mufflers, and falling
object protection structure materials, coverings, and
installation techniques, the parties anticipate this
installation can be accomplished by July 1, 1981. In any
event, once a muffler for a particular LHD has been selected
and falling object protection structure material, accompanying material coverings, and installation techniques have
been selected, that muffler/material will be immediately
ordered and installed as soon as practicable after it is
received.

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3. As a part of its ongoing noise control program, the
Climax Mine will continue to evaluate and implement, if
found feasible, possible noise controls as they become commercially available for use on the rock drills and LHDs
involved in the citations listed above. Climax and MSHA

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3619

'

are in agreement that the primary burden for the basic
research and development of new engineering noise controls
for rock drills and LHDs should fall upon the manufacturers
of mining equipment. As controls are being developed by
manufacturers and evaluated by Climax, Climax will, if
necessary, make in-mine adjustments to the equipment and
work with the manufacturers for equipment modifications in
determining whether the equipment will be feasible for use
at the Climax Mine; this cooperation will continue to be
an integral part of Climax's noise control program. At
this time, it does not appear that there are feasible con~
trols for ring drills because of icing problems. When the
icing problem is resolved, additional controls will be
evaluated. Climax will evaluate and implement, if found
feasible, any additional controls recommended by MSHA for
ring drills. The mini-bore drill will be muffled.
4. With respect to jackleg drills, Climax will continue
to pursue its evaluation of the Canadian PRM 15 muffler and
the so-called "Aurora Muffler." In the interim, the rubbertire muffler will be installed on all unmuffled jackleg
drills, except for the LeRoi drills, and that will be taken
as compliance with the standard until such time as a feasible
control with significantly greater noise attenuation is available. At the conclusion of these reviews, the Climax Mine
will then determine whether one of these two mufflers or the
rubber-tire muffler is suited for installation on a retrofit basis on its jackleg drills. At the present time, because
of maintenance problems, mufflers cannot be retro-fitted ·
onto the LeRoi jackleg drill. However, Climax has begun the
process of phasing LeRoi drills out of its operation. That
phaseout will be completed as soon as feasible replacement
drills are located and can be acquired. Because of the
prior experience which Climax has had, for example, with the
Holman jackleg, it is acknowledged that a wide-scale implementation of the rubber-tire muffler or other rock drill
engineering noise controls may give rise to problems of
feasibility not discovered during initial testing. Should
that occur, issues of feasibility may need to be reevaluated to determine whether or not the control should remain
in place.
5. With respect to the citations themselves, the parties agree as follows:
a.

Citation 333624, involving a JarvisClark LHD and a Gardner-Denver 83 jackleg
drill, will be abated and Climax will pay
a penalty of $25.

3620

b.

Citation 331731, involving a mini-bore
drill, will be abated and Climax will
pay a penalty of $25.

c.

Citation 332973, involving a ring drill, .
will be vacated.

d.

Citation 332974, involving a ring drill,
will be vacated.

e.

Citation 332976, involving a ring drill,
will be vacated.

f.

Citation 333626, involving a Jarvis-Clark
LHD, will be vacated.

g.

Citation 333627, involving a jumbo drill,
will be vacated.

h.

Citation 333628, involving a LeRoi jackleg
drill and Remington chain saw, will be
abated and Climax will pay a penalty of
$25.

i.

Citation 333629, involving a Wagner ST5E
LHD will be abated and Climax will pay a
penalty of $25.

The parties have agreed that penalties for the
abated citations will be assessed at $25 per
citation because of the amounts spent in
evaluating possible noise controls and the
degree of good faith shown by Climax in pursuing its noise control program as a means to
abate the citations.
6. Climax and MSHA agree that their personnel will continue to communicate regarding developments with respect to
noise control. nte extent of time required for in-mine
evaluation of any potential noise control will vary depending
upon the control, the piece of equipment involved, and the
commercial availability of the control. In the future, MSHA
will make a reasonable attempt to advise Climax Mine personnel of any new potential engineering noise controls which
may be feasible for use at the Climax Mine and allow a reasonable time for in-mine evaluation and implementation of
that control, if it is found feasible, before any citations
are issued. It is acknowledged that ultimately Climax and
MSHA may disagree as to the feasibililty of a particular
engineering noise control. In the event that Climax Mine

~~

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3621

(..

personnel are in the process of or have already evaluated
the particular control referred to them, information
regarding the results of that evaluation will be made
available to MSHA technical personnel upon request.
Additionally, on November 20, 1980, ·Climax filed a motion to withdraw
the applications for review. The motion states as follows:
. COMES NOW Climax M:>lybdenum Company, a Division of AMAX,
Inc., by and through its undersigned attorneys, and moves
that the Court approve the Stipulation for Resolution of
Noise Citations at the Climax Mine, direct that the abovecaptioned citations be vacated, or abated.and assessed, as
provided in that Stipulation, and dismiss the above-captioned
Applications for Review.
As grounds therefor Climax states as follows:

1. As more fully outlined in the Stipulation for
Resolution previously filed with the Coµrt, the parties
have agreed after extensive technical study that their
differences with respect to the above-captioned citations
can be resolved without the need for lengthy, complex and
expensive litigation.
2. This motion has been discussed with Robert Cohen,
counsel for MSHA, and David Jones, President of the O.C.A.W.,
and they agree that it should be granted.
WHEREFORE, Climax Molybdenum Company respectfully
moves that this Court grant the relief requested herein.
By letter dated November 28, 1980, the parties were advised that the
agreement to pay civil penalties, as set forth in paragraph No. 5 of the
stipulation, was beyond the scope of an application for review proceeding,
and, accordingly, that one of several alternative courses of action would
have to be followed before action could be taken on the stipulation and the
motion to withdraw the application for review. In response thereto, the
parties filed a supplemental stipulation on December 9, 1980. The supplemental stipulation states as follows:
1. With respect to the civil penalty matters set forth
in Paragraph 5 of the Stipulation previously filed, Climax
and the Secretary of Labor agree as follows:
A. MSHA's Office of Assessments has not yet
proposed civil penalties for the citations mentioned in
Paragraph 5 pursuant to Part 100, Title 30, Code of Federal
Regulations, because none of the citations have as yet
been abated.

3622

B. Upon the Administrative Law Judge's approval
of the Stipulation and Climax's Motion to Withdraw its
Applications·for Review, Climax and the Secretary of Labor
will follow the following·procedures to dispose of the
civil penalty matters:

i.

Counsel for the Secretary will recommend to MSHA's Office of Assessments
that a civil penalty of $25.00 be proposed for each of the following
citations:
333624 (Docket No. DENV 78-541-M)
331731 (Docket No. DENV 78-545-M)
333628 (Docket No. DENV 78-551-M)
333629 (Docket No. DENV 78-552-M)

ii.

Climax will pay said proposed $25.00
assessments within 30 days after the
civil penalty is assessed by MSHA.

2. The Oil, Chemical and Atomic Workers International
Union, Local No. 2-24410, has been informed of this Supplemental Stipulation; however, because the Union is not a
party to the civil penalty proceedings, the Union's signature has not been included.
The proposed disposition of these cases, as set forth in the stipulations filed by MSHA and Climax, have been reviewed. It appears that
approval of the stipulations will adequately protect the public interest.
It is understood, in accordance with the agreement set forth in the
December 9, 1980, supplemental stipulation, that upon approval of the
November 20, 1980, stipulation and the granting of the motion to withdraw
the applications for review, MSHA will recommend that the Office of Assessments propose $25 civil penalties for each of the following citations:
Citation Nos. 333624, 331731, 333628, and 333629. · It is further understood
that Climax will pay such civil penalties within 30 days of the.date of
· assessment. Accordingly, it is considered unnecessary to specifically order
the termination or abatement of t~e citations and the assessment of civil
penalties.
In view of the ultimate disposition of these cases, i.e., dismissal, it
is considered inappropriate to enter an order vacating Citation Nos. 332973,
332974, 332976, 333626, and 333627. It is understood that MSHA will fulfill
the agreement by vacating these citations.

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In view of the foregoing, Climax's motion to withdraw its applications
for review is GRANTED. IT IS THEREFORE ORDERED that the stipulations filed
on November 20, 1980, and December 9, 1980, be, and hereby are, APPROVED,
and that the above-captioned proceedings be, and hereby are, DISMISSED.

~~U
ohn F. Cook

'.>

Distribution:
William F. Schoeberlein and Charles w. Newcom, Esqs., Sherman & Howard,
2900 First of Denver Plaza, 633 17th Street, Denver, CO 80202
(Certified Mail)
Edward C. Hugler and Robert A. Cohen, Esqs., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
David A. Jones, Jr. President, Oil, Chemical and Atomic Workers International Union, Local No. 2-24410, P.O. Box 949, Leadville, CO 80461
(Certified Mail)
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO 81645
(Certified Mail)
Ms. Sylvia Balltrip, Office and Professional Employees International
Union, Local No. 410, P.O. Box 1179, Leadville, CO 80461 (Certified
Mail)
James F. Engelking, W. Michael Hackett, and Richard W. Manning, Esqs.,
13949 West Colfax Avenue, Golden, CO 80202 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

3624

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

DEC 1 6 1980
)

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

)
)

CIVIL PENALTY ACTION

)

Petitioner,

)

DOCKET NO. WEST 80-1-M

)

v.

)

A/O CONTROL NO. 02-00954-05003

)

JAQUAYS MINING CORPORATION,

)
)

MINE:

JAQUAYS MILL

APPEARANCES:
Mildred L. Wheeler, Esq., Office of the Solicitor, United States
Department of Labor, San Francisco, California
for the Petitioner,
H. R. Gannan, Esq., Tucson, Arizona
for the Respondent.
Before:

Judge John J. Morris
DECISION

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration (MSHA), charges Jaquays Mining Corporation with several
violations of regulations promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. 801 et seq. Respondent denies the violations and
contests the appropriateness~the penalty. Jacquays also moves for an
order of dismissal on the grounds that the Secretary did not propose a
penalty within a reasonable length of time, and that the attachment of the
MSHA assessment form to the proposal for assessment of civil penalty was
unduly prejudicial to respondent.
ISSUES

1
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:1

1. Whether the attachment of the MSHA assessment form to the proposal
of a civil penalty is prejudicial to respondent.

2. Whether the lapse of time between the issuance of the citation and
MSHA's proposal of a penalty was unreasonably long and, therefore, warrants
the dismissal of the case.
3.

Whether respondent violated the ·Act.

4.

The determination of a penalty, if a violation is found.

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3625

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DISCUSSION OF RESPONDENT'S MOTIONS TO DISMISS
The attachment of the MSHA proposed assessment form to the proposal of
assessment of civil penalty filed by the Secretary is not prejudicial to
respondent. The Secretary is required to include a proposed penalty for
every citation in issue. 29 CFR 2700.27(c). The MSHA form is merely an
attachment to the proposal of a civil penalty which explains the criteria
considered by MSHA in making its penalty determination. The Secretary must
still prove at trial the six criteria which must be considered by the·
Conmission before it assesses a penalty. The Commission is not bound by the
Secretary's proposal, nor is it required to follow the formula for assessing
penalties established by the Secretary. 29 CFR 2700.29(b). Sec. of Labor
v. Co-op Mining Co., FMSHRC Docket No. DENV 75-207-P (1980), 1 MSHC 2356.
As to Respondent's second ground for dismissal, the Act requires the
Secretary to propose a penalty for an alleged violation within a "reasonable
time", 30 USC 815(a). The penalty assessments in this case were transmitted
to the respondent approximately 5 months after the mine was inspected.
It was not the intention of Congress that any delay should prevent the
execution of the Act by the Secretary.
To promote fairness to operators and miners and
encourage improved mine safety and health generally,
such penalty proposals must be forwarded to the operator
and miner representative promptly. The Committee notes,
however, that there may be circumstances, although rare,
when prompt proposal of a penalty may not be possible,
the Committee does not expect that the failure to propose
a penalty with promptness shall vitiate any proposed
penalty proceeding. Senate Report 95-181, 95th Cong.,
1st Sess. 34 (1977)
Courts have held that the necessity for enforcement of safety and
health standards outweighs any procedural deficiencies concerning filing
requirements, unless the operator is prejudiced by such delays. Todd
Shipyards Corp. v. Sec. of Labor & OSHRC 566 F.2d 1327 (9th Cir.),
Stephenson Enterprises, Inc. v. Sec. of Labor & OSHRC 578 F.2d 1021 (5th
Cir. 1978); Jensen Construction Co. v. OSHRC & Sec. of Labor 597 F. 2d 246
(10th Cir. 1979). Respondent failed to present any evidence that it was
_prejudiced by the delay in the proposal of the penalty by the Secretary.
For the reasons stated above, I conclude that respondent's motions to
dismiss should be denied.

3626

FINDINGS OF FACT
Citation No. 379251
The Secretary alleges that respondent violated 30 CFR 57.9-22 1 by
failing to provide a berm on an elevated roadway. I find the following
facts are supported by the evidence.
1. A roadway 12 feet wide and 50 feet long gradually rose to a height
of 12 feet; it did not have a berm on its west side (Tr. 21, 22, 34, 100).
2.

The roadway is used by dump trucks to feed the main hopper (Tr.

3.

The roadway is on mill property (Tr. 101).

22).

4. The hazard is that a truck could roll off the roadway if its brakes
failed or if the truck was not driven properly (Tr. 22, 37, 48, 100).
5. If a truck rolled off the side of the road, the driver could be
fatally injured (Tr. 23).
The standard requires that berms be provided on the outer bank of all
elevated roadways with no exceptions. Respondent failed to comply with the
standard.
Citation 379252
The Secretary contends that Jacquays did not have a proper guard over
the pinchpoint of the number l roll motor, contrary to 30 CFR 57.14-1.2
I find the following facts to be supported by the evidence:
1. A pinchpoint located where the v-belt rolls over a pulley of the
number 1 roll motor was not adequately guarded (Tr. 24, 25, 107, 120, 123,

P-2)
2. The pinchpoint was approximately 2 - 3 feet from a platform and
above t.he floor of the mi 11 (Tr. 24, 45).

3 feet

3. The walkway was not used frequently by miners, but anyone had
access to the area where the pinchpoint was located (Tr. 86, 102).

i,.

4. At times, miners are in the area to do maintenance work or to
observe the ope rat ion of the roll motor (Tr. 25, 41, 8 7, 89).

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57.9-22 Mandatory. Berms or guards shall be provided on the outer
bank of elevated roadways.

2/

57.14-1 Mandatory. Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons shall be guarded •

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3627
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5. The hazard is that a miner could be seriously or fatally injured if
they fell into the pinchpoint.
Respondent argues that the area near the roll motor was not a working
area or near a frequently used walkway. This fact, however, does not
eliminate the possibility that a miner in the area doing maintenance work or
for any other reason, could fall into the pinchpoint and be severely
injured.
Accordingly, I affirm the citation.
Citation 379253
Petitioner charged respondent with another violation of 30 CFR
57.14.1. The evidence was conflicting. I find the following facts to be
credible:
1. The v-belt pinchpoint on the number one willow motor was not
guarded (Tr. 26).
2. The willow motor is located 15 feet above the floor and 10 - 12
feet above a workdeck (Tr. 88).
3. To get to the pinchpoint a miner would have to climb up the frame
that holds the motor and onto the motor itself (Tr. 88, 89).
The standard requires that moving machine parts be guarded if they can
be contacted by someone. It is difficult to visualize how a miner could
come in contact with a pinchpoint that is at the very least ten feet above
the floor. Petitioner failed to prove that a miner could be exposed to this
unguarded pinchpoint. Accordingly, the citation should be vacated.
ASSESSMENT OF PENALTY
Respondent contests the amount of the penalties as proposed by MSHA.
Having reviewed the Secretary's criteria upon which the penalty was proposed
and the record, I find that there is no evidence to support MSHA's
calculation of respondent's history of violations. Accordingly, the
penalties for citation nos. 379251 and 379252 should be reduced. Further,
considering all the criteria in 30 U.S.C. 820(i) I assess a penalty of
.$ 75 for each violation.
ORDER
Based on the foregoing findings of fact and conclusions of law, I enter
the following order:
Respondent's motion to dismiss is denied. Citation No. 379253 and the
proposed penalty are vacated. Citation Nos. 379251 and.379252 are affirmed
and a penalty of $75.00 is assessed for each.

3628

Distribution:
Mildred L. Wheeler, Esq., Office of the Solicitor.,
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
H. R. Gannan, Esq. Attorney at Law
635 North Craycraft
Tucson, Arizona 85711

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

DEC 1 6 1980

CIVIL PENALTY PROCEEDING
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
DOCKET NO. CENT 80-92-M
Petitioner,

v.

MSHA CASE NO. 39-00055-05021 H

HOMESTAKE MINING COMPANY,
MINE:

Homestake Mine

Respondent.
DECISION
Appearances:
James Barkley, Esq., Office of the Solicitor,
U. S. Department of Labor
1585 Federal Building, 1961 Stout Street
Denver, Colorado 80294,
for the Petitioner
Robert A. Amundson, Esq.,
215 West Main
Lead, South Dakota 57754,
for the Respondent
Before:

Judge Jon D. Boltz
STATEMENT OF THE CASE

Petitioner seeks an order assessing a civil monetary penalty against
the respondent for its alleged violation on July 12, 1979, of 30 C.F.R.
57.3-201. The cited regulation was issued under authority of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq~ (1978).
In connection with the citation, the MSHA inspe.ctor issued awitiidrawal
order and alleged on the citation, inter alia, that in the 4400 foot main
ledge header area there were fresh signs that the back and ribs were taking
pressure, including fresh cracks. The citation and order attached to the
petition show that they were terminated July 17, 1979.
The respondent denies in its answer that the condition alleged violated
the standards cited and if there was any ground support problem, the normal
mining sequence would have corrected it.

1/ Mandatory.

Ground support shall be used if the operating experience of
the mine, or any-particular area of the mine, indicates that it is
required. If it is required, support, including timbering, rock
bolting, or other methods shall be consistent with the nature of the
ground and the mining method used.

3630

-------------------------------

FINDINGS OF FACT
1. The area of the mine which was inspected by an MSHA inspector and
which gave rise to the issuance of the citation in question is referred to
as the 4400 foot main ledge and 3 winze corner (Tr. 5, Exh. P-1).
2. The 3 winze is a shaft that runs from the 4100 foot level to the
5000 foot level and is used as a secondary escape way (Tr. 5).
't

3. Tracks for the main haulage way on the main ledge at the 4400 foot
level lead to a "Y": the fork to the left leading to the chute and manway
to which ore is hauled; the fork to the right leading to the waste dump area
where rock which is too low in grade to be processed is taken; and continuing directly through the middle of the "Y", the track leads to the 3
winze. (Tr. 6, Exh. P-1).

'

4. There had been no mining done in the area described for approximately 15 years (Tr. 181).

5. The ground support used in the described area subject to the
citation included timber, rail sets, shot crete, rock bolt and a cement
pillar (Exh. P-1 through P-9).
ISSUE
The issue is whether or not the support was consistent with the nature
of the ground and the mining method used.

l,,,,

DISCUSSION AND CONCLUSIONS

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The MSHA inspector testified that the second sentence of 30 C.F.R.
57.3-20 was violated by the respondent. That sentence states as follows:
"If it is required, support, including timbering, rock bolting, or other
methods shall be consistent with the nature of the ground and the mining
method used."

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In the opinion of the inspector, the area in question was not being
adequately supported for the amount of stress it was taking. He based this
conclusion on his observations, including the following: a vertical support
post which was split vertically at the top and an adjoining horizontal cross
member which was loose on one· end (Tr. 11); rail sets which were sinking
into a supporting wooden slab (Tr. 17); a rock weighing between one and two
tons which was protruding from the roof of a six-foot drift and was
·supported by rock bolts attached to a plate at the bottom of the rock
(Tr. 19, 224); some cracks in the roof which "appeared" to be fresh
(Tr. 27); and some shot crete which had peeled off the ribs.2(Tr. 30).

.,

The observations of the inspector were supported by the testimony of
three employees of the respondent.

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through air pressure onto rocks or timber (Tr. 30).

3631
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In regard to the shot crete, the inspector stated that he "surmised"
that it was pressure on the rocks that caused the shot crete to peel, but he
also stated that it might not have been properly applied. The inspector
further testified on cross-examination that blasting in the area could cause
the shot crete to peel.
A witness for the petitioner stated on cross-examination that the
protruding rock had ground support and had to be blasted down. He further
testified that since the rock was located low in the drift, the plate on the
bottom could be "pulled off by hitting". Thus, the problem with the
protruding rock was the hazard presented by its location and not that the
method used for its support was inconsistent with the nature of the ground
in the area.
The respondent's evidence shows that the post which was split and the
loose horizontal timber observed by the inspector was a 11 tie". The witness
defined a tie as timber used to spread other timber apart and not used to
support any weight. Thus, the respondent contends that it was not used for
purposes of ground support.
An employee of the respondent who had worked in the area in question
for several.years testified that after the citation was issued, the rail
sets were removed, new posts were set, and the rails were then put in
horizontal to the cap in the timber line. By raising the rail sets an
additional three to four inches clearance was gained, but no additional
ground support was provided by the procedure.
The evidence is also in dispute as to whether or not there were any
fresh cracks in the area. The petitioner's witnesses testified that there
were fresh cracks and old cracks in the area. The respondent's witnesses
testified that they saw no fresh cracks ~nd this included a witness who
accompanied the inspector at the time of the inspection. These witnesses
testified that there were some cracks in the area, but they were of long
duration and unchanged. I find the evidence inconclusive on this point.
Out of approximately 100 stopes at the respondent's mine, only three or
four were "timber stopes", including the area covered by the citation at
issue. A witness for the respondent testified that more care had to be
taken with a timbered stope because of the problem of "taking weight".
However, the evidence did not show that the support used by the respondent
was inconsistent with the nature of the ground.
I conclude that the evidence presented by the petitioner falls short of
proving the violation of the cited regulation by a preponderance of the
evidence.
The petitioner's evidence does not show that support consistent with
the nature of the ground and mining method was not being used by the
respondent. On the contrary, the evidence showed that in the normal
sequence of operations in the area in question, the respondent replaces
timbers that deteriorate, installs additional timbers and rock bolts, and
utilizes shot crete. In fact, several days before the inspection, a work
order had been submitted to perform ground support work in the area,
including rock boltirig (Tr. 300, 301, 302).

3632

consolidated proceeding 1/ was held on October 16, 17, and 18, 1979, in
Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety and
Health Act of 1977. The hearing had not been completed at the end of the
day on October 18, 1979.
The hearing was scheduled to be reconvened on March 18, 1980, but, at
the request of MSHA's counsel, was thereafter continued to be reconvened on
July 29, 1980. At the request of respondent's counsel, the hearing was again
continued to August 5, 1980. Thereafter, counsel for MSHA advised me that the
parties had settled all issues which had not been the subject of the hearing
held in 1979. Consequently, this decision will dispose of all contested
issues which were the subject of the hearing held in 1979 and will grant
the motion for approval of settlement which was filed by MSHA's counsel on
October 15, 1980, with respect to all issues other than those which were the
subject of the 1979 hearing.
Several inspectors appeared as witnesses at the hearing held in 1979. In
order that the inspectors' 'time could be used to maximum advantage, MSHA's
counsel introduced evidence with respect to all notices of violation or citations which had been written by a given inr.pector irrespective of whether the
notices of violation or citations written by a given inspector were the subject of more than one Petition for Assessment of Civil Penalty in more than
one docket number. Therefore, the Petitions for Assessment of Civil Penalty
filed in Docket Nos. PIKE 78-308-P, PIKE 79-77-P, and PIKE 79-99-P will be
considered in this decision under both contested and settled issues. The
Petitions for Assessment of Civii Penalty filed in Docket Nos. PIKE 78-451-P,
PIKE 78-458-P, and KENT 79-1 will be disposed of entirely in the portion of
this decision which is devoted to the contested issues considered at the
pearing held in 1979.
The dates of filing and the number of violations alleged in each Petitio~
for Assessment of Civil Penalty are listed in the following tabulation:
Docket Nos.

Dates of Filing

PIKE 78-308-P
PIKE 78-451-P
PIKE 78-458-P
PIKE 79-25-P
PIKE 79-50-P
PIKE 79-77-P
PIKE 79-99-P
KENT 79-1

April 24, 1978
August 28, 1978
August 29, 1978
November 15, 1978
December 6, 1978
January 17, 1979
February 2, 1979
June 15, 1979

Number of
Alleged Violations
12
1

17
20
2
7

4
1

1/ The original hearing in October of 1979 involved nine cases. Six additional cases were added after the initial hearing was held. The six cases
which were consolidated subsequent to October 1979 were in Docket Nos. KENT
79-151, KENT 80-28, KENT 80-31, KENT 80-32, KENT 80-33, and KENT 80-68.

3635

KENT 79-125
May 30, 1979
KENT 79-151
July 9, 1979
KENT 80-28
April 7, 1980
KENT 80-31
April 7, 1980
KENT 80-32
April 7, 1980
KENT 80-33
April 7, 1980
KENT 80-68
April 1, 1980
Total Alleged Violations in This Proceeding

8
1
2

17
4

6
7

.... 109

CONTESTED ISSUES
Evidence at the hearing was completed with respect to 27 alleged viola• tions and, because of the unavailability of a witness, counsel for MSHA asked
that the Petition for Assessment of Civil Penalty filed in Docket No. PIKE
78-458-P be dismissed to the extent that it seeks assessment of a penalty
for the violation of section 75.400 alleged in Notice of Violation No. 3 VEH
(7-50) dated August 1, 1977 (Tr. 119).
The issues raised in civil penalty proceedings are whether any violations of the mandatory health and safety standards occurred and, if so, what
monetary penalties should be assessed, based on the six criteria set forth in
· section llO(i) of the Act. It is usually possible to make a general consideration as to some of the criteria. In this proceeding, one set of findings
may be made as to the criteria of the size of respondent's business, the
question of whether the payment of penalties would cause respondent to discontinue in business, the matter of whether respondent demonstrated a good faith
effort to achieve rapid compliance after notices of violation, citations, and
orders were written, and respondent's history of previous violations.
The size of respondent's business and the question of whether payment of
penalties would have an adverse effect on respondent's ability to continue in
business will first be considered. Little Bill Coal Company, Inc., is owned
by two men named John McGuire and Bill Leslie. The company's name, Little
Bill Coal Company, was conceived by reference to Mr. Bill Leslie who happens
to be small in stature.
The company has operated several mines at various times. The No. 2 Mine
was operated until about October 1978 when it was closed because all of the.
coal reserves had been exhausted (Tr. 65). When the No. 2 Mine was producing
at its peak, the mine employed about 14 persons on two shifts. The equipment
used in the mine consisted of a continuous-mining machine, two shuttle cars,
two roof-bolting machines, and conveyor belts (Tr. 37).
The No. 3 Mine was operated for only a short period of time. The owners
say that a total of 115 MSHA inspectors examined the No. 3 Mine over a period
of 41 days with the result that the mine had to be closed (Tr. 66). The
owners alleged that they had an altercation with a first cousin of a supervisory inspector employed by MSHA and that their No. 3 Mine was excessively
inspected for the sole purpose of causing the company to stop mining coal
(Tr. 774-775).

3636

The No. 4 Mine has been a disappointment because it encountered a coal
seam which is only about 20 inches high. As a result, that mine was subleased to some other miners who have been producing.about 50 or 60 tons per
day. Respondent agreed to pay them $15 per ton for the coal they produced
and respondent also agreed to pay the electric power bill, provide insurance, and furnish an end loader for the loading of their coal (Tr. 772).
In 1976, Little Bill Coal Company was a relatively successful operation
which sold about 90,000 tons of coal for which it received a gross income of
$2,169,887. Respondent's income tax return, however, shows that the company's
costs were $2,209,017 which produced a loss of $39,130. Nevertheless, in
1976, the owners were able to pay themselves a total of $172,000 in salaries,
or $86,000 each (Tr. 706-707; Exh. F). In 1977, the company had a gross
income of $1,035,377 and its expenses were $1,040,149 with a resulting lo·ss
of $3,371. In 1977, the owners were able to pay themselves total salaries of
$128,000 or $64,000 each (Tr. 719; Exh. G).
The company's business continued to decline after 1977 so that by the
11 months ending August 31, 1979, the company had lost a total of $266,706
or $6.23 for each ton of coal produced. During the single month of August
1979, the company lost $6,369 despite the fact that the owners paid themselves no salary at all that month. It is true that during the preceding
10 months, the owners had paid themselves total salaries of. $80,000, or
$40,000 each, but during that same period of time, Mr. Leslie had had to
advance the company $105,000 from his personal funds and' Mr. McGuire
loaned the company $108,000 from his personal funds. Mr. McGuire had to
mortgage his personal residence for $80,000 in order to loan the company
$108,000 (Tr. 753; Exh. I).
Based on the facts set forth above, I find that respondent operates a
very small business at the present time and that payment of penalties will
have an adverse effect on its ability to continue in business.
The evidence introduced at the hearing with respect to each alleged violation indicates that respondent abated the violations within the time given
in the inspectors' notices of violation or citations. There is no testimony
by any inspector indicating that respondent failed to make a good faith effort
to achieve compliance. Therefore, I find that respondent did make a normal
good faith effort to achieve compliance and, in the assessment of penalties,
credit for that mitigating factor will be given.

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During the hearing held in 1979, MSHA introduced 72 exhibits, but none
of those exhibits provided any information with respect to the criterion of
history of previous violations. The attorney who represented MSHA at the
hearing held in 1979 resigned between the time that the 1979 hearing was held
and the time that the 1980 hearing was scheduled to commence. The attorney who was assigned to represent MSHA at the 1980 hearing submitted, prior to the
convening of the supplemental hearing, proposed Exhibit Nos. 72A through 196.
Two of those proposed exhibits, Nos. 72A and 143, are computer printouts
showing prior violations for which respondent has paid penalties.

3637

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I have examined proposed Exhibit Nos. 72A and 143 and those exhibits show
that respondent has violated the same sections of the regulations involved in
this proceeding on from none to nine previous occasions. Two types of violations which I consider to be especially serious are section 75.400 which pertains to the accumulation of combustible materials and section 75.200 which
concerns violations of a respondent's roof-control plan. Respondent's
largest number (nine) of previous violations is of section 75.400, but the
trend in those violations has been downward from six in 1976 to one in 1977
by October 3, 1977. Respondent has violated section 75.200 on two previous
occasions, but the trend in those violations is also downward from two in 1975
to none in 1977 by July 15, 1977.
_
It is my practice to consider an operator's history of previous violations on an individual basis when assessing each penalty, but in this proceeding, since the criterion of the effect that payment of penalties will have on
respondent's ability to continue in business is the overriding consideration
in the assessment of each penalty, I am finding, in the circumstances which
exist in this proceeding, that no useful purpose would be achieved by giving
individual consideration to the criterion of history of previous violations
because that history is not substantial in the first instance and would, in
final analysis, have little effect on the ultimate penalty to be assessed
because I would, in the circumstances of this case, merely reduce the amount
of a given penalty assessed under the other five criteria so as to allow for
the assessment of a minor amount under the criterion of history of previous
violations.
There is one other important reason for not giving individual consideration to the criterion of history of previous violations. That reason relates
to the fact, as stated above, that no evidence as to the criterion of history
of previous violations was presented by MSHA's counsel during the hearing held
in 1979. If the supplemental hearing had gone forward in 1980 as scheduled,
the proposed exhibits which I have referred to in discussing respondent's
history of previous violations would have been offered in evidence at a hearing where respondent's counsel could, if he had beert so inclined, have
objected to the receipt in evidence of such evidence and could, if he had
been so inclined, have introduced evidence with respect to the criterion of
history of previous violations. Inasmuch as that criterion was not the subject of any evidence at the hearing held in 1979, it would be unfair to
respondent for me to consider proposed exhibits, submitted after the 1979
hearing, for the purpose of assessing penalties with respect to contested
issues which are being decided on the basis of evidence presented by the
parties at a hearing during which neither party introduced any evidence whatsoever with respect to the criterion of history of previous violations.
In the portion of this decision which follows, I shall give individual
consideration to the evidence presented by both MSHA and respondent for the
purpose of determining whether each alleged violation occurred. If I hereinafter find that violations have occurred, I shall give individual consideration to the remaining two criteria of gravity and negligence and shall assess
penalties on the basis of those two criteria and the findings made above as
to the other four criter_ia.

3638-

any leaks in the hydraulic hoses, did not know what the operator's cleanup
plan was, and did not know how long the accumulations had existed (Tr. 121138). The operator had a regular cleanup program under which the equipment
was washed down with a high pressure hose twice a week and the operator agreed
that some accumulations could occur within a 2-day period between cleanups
which were performed on the maintenance shift between midnight and 8 a.m.
(Tr. 421-430).

Conclusions. At the time the testimony and exhibits in this proceeding
were received in evidence, the elements of evidence required to prove a violation of section 75.400 were those which the former Board of Mine Operations
Appeals had set forth in Old Ben Coal Co., 8 IBMA 98 (1977). In the interim
between the receipt of evidence in this proceeding and the rendering of this
decision, the Commission issued its decision in Old Ben Coal Co., 1 FMSHRC
1954 (1979), reversing the former Board's Old Ben decision and holding that
combustible accumulations must be prevented from occurring and declaring that
a violation of section 75.400 does not depend upon the question of whether the
operator cleans up a given accumulation within a reasonable period of time.
I am not in doubt about the fact that I must follow Commission precedents
which become effective between the receipt of evidence and the time I render
a decision based on that evidence because I was reversed for failing to do
so in C.C.C.-Pompey Coal Co., 2 FMSHRC 1195 (1980).

171
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Since the operator was unable to present a witness who had personally
examined the shuttle car on the day the violation was cited, I find that the
accumulation described by the inspector existed and was moderately serious.
There was a low degree of negligence since the accumulation had occurred in
a short time between the operator's biweekly cleanings. In view of the operator's small size and difficult financial condition; a penalty of $15 will be
assessed for this violation of section 75.400.
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Notice No. 2 EDF (7-64) 10/12/77 § 75.400 (Exhibit 4)
Findings. The only difference between the violation of section 75.400
alleged in Exhibit 4 and the violation of that section alleged in Exhibit 1
is that the combustible materials had accumulated on the standard-drive
Joy 21 shuttle car instead of the off-drive shuttle car. Since the witnesses
agreed that the same circumstances prevailed for the two violations of section 75.400, I find that the violation was moderately serious, that there
was a low degree of negligence, and a penalty of $15 will also be assessed
for this violation of section 75.400 (Tr. 140-145; 431-434).

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Notice No. 3 EDF (7-65) 10/12/77 § 75.503 (Exhibit 7)
Findings. Section 75.503 re·quires each operator to maintain. equipment
used inby the last open crosscut in a permissible condition. Respondent
violated section 75.503 because two bolts were missing from the footcontrol switch of the standard-drive Joy 21 shuttle car. The violation was
moderately serious because no methane had ever been detected in respondent's
No. 2 Mine either with a hand-held methane detector or by analysis of a

3641

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bottle sample of air obtained in the mine atmosphere. Respondent was negligent for failing to replace the bolts, but there is no way to know whether
the violation occurred between the weekly inspections of electrical equipment (Tr. 149-157).
Conclusions. Respondent's witness testified that the cover fits so
tightly over the foot-control switch that he thinks it would be permissible
even with all four bolts missing. (Tr. 435), but he stated that he did not
personally inspect the shuttle car after the notice of violation was written
(Tr. 439). Since respondent could present no evidence showing that the cover
was still in a permissible condition on the day the notice was written, I
conclude that the preponderance of the evidence supports a finding that the
violation occurred. Since the circumstances as to gravity and negligence for
this violation are the same as they were for the previous violations of section 75.400, a penalty of $15 will also be assessed for this violation of
section 75.503.
Notice No. 5 EDF (7-67) 10/12/77 § 75.400 (Exhibit 11)
Findings. The inspector alleged that coal dust and oil had accumulated
on the roof-bolting machine to the same degree that he. had observed such
accumulations on the two shuttle cars described above. The operator violated section 75.400 by failing to keep the combustible materials off the
roof-bolting machine. The violation was moderately serious and there was a
low degree of negligence (Tr. 158-172).
Conclusions. The primary difference between the inspector's testimony
with respect to the accumulations on the roof-bolting machine, as opposed to
those on the two shuttle cars previously considered, is that the inspector
stated that in his opinion, the accumulations had occurred over a period of
at least 1 week (Tr. 168-172). Respondent's witness testified that the roofbolting machine was cleaned twice a week, but since the inspector did not
inquire into the operator's cleanup program, there is no evidence to cast
any doubt on respondent's claims (Tr. 443-445). On the other hand, respondent's witness did not personally inspect the roof-bolting machine on the day
the notice was written and could not say for certain that the roof-bolting
machine was free of accumulations of combustible materials (Tr. 446). Inasmuch as the evidence fails to show that this violation of section 75.400 was
serious or that respondent had failed to comply with its cleanup program, I
shall assess a penalty of $15 for this violation of section 75.400.
Notice No. 6 EDF (7-68) 10/12/77 § 75.807 (Exhibit 14)
Findings. Section 75.807 requires, among other things, that all underground high-voltage cables be guarded where miners are required to work.
Respondent violated section 75.807 because a 4,160-volt cable transmitting
power to a transformer was looped beside the transfotmer and lying on the
mine floor where a miner would have to step over it to plug or unplug circuit
breakers used for energizing equipment. The violation was serious because
such cables are subject to blowing up for no apparent reason. Respondent

3642

was negligent for failing to place the cable in a protected place where
miners, including the mine foreman and electrician, would not have to step
over the cable to get to the transformer (Tr. 173~189).
Conclusions.

Respondent's witness inspected the cable at the time Notice

No. 6 EDF was written and agreed that the cable had been looped beside the
transformer as shown on Exhibit 15A (Tr. 446). Although respondent's witness
said that a person could get around the cable without stepping over it, he
said that the transformer is 8 feet wide and 34 feet long and fills up most of
a 20-foot entry when the cable is attached (Tr. 456). Respondent's witness
also stated that he was not afraid to step over the cable or handle it with
·gloves (Tr. 451). The fact that respondent's witness is not afraid of the
cable does not prevent it from being a source of danger. Respondent's witness
also emphasized the fact that the type of cable cited in Notice No. 6 EDF has
two ground wires, a monitoring wire, and an individual ground for each of the
three phases as well as shielding tape (Tr. 452).
I do not think that any of the facts stated by respondent's witness
justify respondent's failure to guard the high-voltage cable or place it in a
less hazardous position than it was placed when the notice was written. Since
this was a serious violation and was associated with a fairly high degree of
negligence, I believe that a penalty of $25 should be assessed for it despite
respondent's difficult financial position.
Notice No. 8 EDF (7-70) 10/12/77 § 75.507 (Exhibit 21)
Findings. Section 75.507 requires the operator to place all nonperm:issible power connection points in intake air if they are located outby the
last open crosscut. Respondent violated section 75.507 because its 4,160-volt,
nonpermissible transformer was situated in return air. The violation was
moderately serious because the hazard involved is that a combustible amount
of methane might accumulate in the return air passing over the transformer
and cause an explosion. Inasmuch as no methane has ever been detected in
respondent's mine, the li~elihood of an explosion was less than it would
have been in a mine which is known to liberate methane. The violation was
associated with a high degree of negligence (Tr. 205-210).
Conclusions. Respondent's defense was presented by Mr. Leslie who stated
that he entered the mine on the evening shift after Notice No. 8 EDF had been
issued on the day shift. Mr. Leslie testified that the transformer was situated in a crosscut and that a curtain had been installed between the transformer and the return entry (Tr. 461). The inspector testified on rebuttal
that he would not have cited a violation if the curtain had existed at the
time he examined the transformer (Tr. 464). Mr. Leslie thereafter testified
that it was possible that the curtain was installed between the time that he
entered the mine and the time the violation was cited by the inspector (Tr.
467). The difference in time between Mr. Leslie's and the inspector's examination is also an explanation for the fact that Mr. Leslie claims the transformer was not moved between the time the violation was cited and the time
it was abated, whereas the inspector contended that the violation was abated
by the movement of the transformer into intake air.

3643

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The factors I have just given show that there was no inconsistency in the
two witnesses' testimony if consideration is given to the difference in time
of the two inspections. There was a greater degree of negligence in this
instance than in most of the previous violations. Therefore, a penalty of
$20 will be assessed for this violation of section 75.507. It should be borne
in mind that the low penalties I am assessing are based to a very large extent
on the criterion that payment of penalties would cause respondent to discontinue in business.
Notice No. l EDF (7-71) 10/13/77 § 75.1725 (Exhibit 24)
Findings. Section 75.1725 requires, among other things, that an operator
111aintain mobile and stationary equipment in a safe operating condition and
that any unsafe equipment must immediately be removed from service. Respondent violated section 75.1725 because the covers on the transformer were
bent sufficiently to expose internal wires and all bolts designed to hold
the covers in place were missing. The violation was only moderately serious
because the insulation on all wires was in good condition and the covers
were recessed into the transformer's side to such an extent that a person
would be unlikely to come into contact with the exposed insulated wireso
There was a high degree of negligence in respondent's failure to keep the
covers properly bolted (Tr. 213-221).

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Conclusions. A great deal of testimony was presented by respondent
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through its witness, Hr. Leslie, but when the testimony is analyzed~ it all
boils down again to the fact that Mr. Leslie examined the transformer on the
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night shift, whereas the inspector examined it and wrote the notice of violation on the day shift. The inspector stated that all bolts were missing from
t
the two bent covers or panels when he examined them, whereas Mr. Leslie testi- 1.·.
fied that only two of the six bolts in the panels were missing when he examined
the panels (Tr. 505). Mr. Leslie agreed that it would have been possible for
an electrician to have installed four bolts on each panel so as to pull them
back into place between the time that the inspector cited the violation and
the time Mr. Leslie examined the transformer (Tr. 476; 504). I t must be
borne in mind that the panels were only slightly bent and installation of the
bolts would have drawn them down so as to reveal no indication that they had
been bent as they appeared at the time the notice of violation was written.

i

4

In view of Mr. Leslie's statement that the transformer cost $50,000, it
is easy to understand why an employee would want to conceal from Mr. Leslie
the fact that he had abused two of the panels sufficiently to bend them.
When all the evidence is carefully examined, it appears that the violation
here cited was very minor in nature and may have consisted solely of a failure of the electricians to replace the bolts when they were working on the
transformer. That kind of carelessness should be discouraged because it can
lead to other and more serious violations than the one here involved. In
such circumstances, and in view of respondent's difficult financial condition, a penalty of $5 will be assessed for this violation of section 75.1725.

the criterion of negligence. There was a relatively high degree of negligence, so a penalty of $15 will be assessed for this violation after giving
considerable weight to respondent's difficult financial condition.
Notice No. 4 EDF (7-80) 10/20/77 § 75.516-2 (Exhibit 48)
Findings• Section 75.516-2 requires that communication wires be supported on insulated hangers or insulated J-hooks. Respondent violated section
75.516-2 because the communication wires were entangled with the fire-sensor
cable and belt-control cable. The violation was potentially serious because
if the insulation on the 110-volt control cable had been defective and had
happened to touch the communication wire at a place where the insulation
was also defective, a person handling the phone might be shocked because
of energy from the control wire being transferred to the communication wire.
Respondent was negligent for failing to have all the wires separated and
installed on their own insulated hangers (Tr. 375-387).
Conclusions. Mr. Leslie testified that respondent's communication wires
carried only 12 volts from two batteries and that the sensor cable also
carried only 12 volts from two batteries, but he agreed that a potential
shock existed if the communication wire had come into contact with the control wire which carried 110 volts. There was only a remote possibility of
shock in this instance because all wires were well insulated (Tr. 377; 568569; 572). Here again, the penalty to be assessed should be done primarily
under the criterion of negligence because there was little gravity involved,
but there is always a potential for injury and it existed here because of the
negligence of respondent to see that the wires were properly placed on insulators. Therefore, a penalty of $15 will be assessed, keeping in mind respondent's poor financial condition.
Notice No. 7 EDF (7-69) 10/12/77 § 75.200 (Exhibit 17)
Findings. Respondent's roof-control plan requires that roof bolts be
installed on 4-foot centers (Exh. lB, p. 9). Respondent violated section
75.200 because roof bolts in the No. 1 and No. 2 pillar splits had been
installed from 4-1/2 to 6 feet apart for a distance of about 20 feet. In
this instance, the violation did not expose the miners to any serious danger
as the roof appeared to be in good condition, but there existed the potential
of a rock falling between roof bolts which were up to 2 feet wider than the
plan permitted. There was a high degree of negligence because the inspector
said that respondent frequently installed roof bolts farther apart than the
4-foot spacing required by the roof-control plan (Tr. 190-203).
Co.1clusions.. Respondent's witness, Mr. McGuire, testified that he was
present in the mine on the day Notice No. 7 EDF was written because he had
gone into the mine for the purpose of replacing the pump motor on the
continuous-mining machine. Mr. McGuire says that he measured the distance
between the bolts with a 42-inch stick which they kept on the roof-bolting
machine and that he found about 10 or 12 bolts to be about 44 inches apart
(Tr. 578)

3651

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Both the inspector and Mr. McGuire agreed that the continuous-mining
machine was broken down and was being repaired. The inspector found it necessary to extend the time for compliance because it was not possible for the
roof-bolting machine to pass by the inoperative continuous-mining machine for
the purpose of installing additional bolts (Exh. 19). The inspector eventually terminated the notice of violation when he was told that they bad withdrawn from the pillar split cited in his notice. The inspector stated that
he did not go back to check the area cited in his notice because he agreed
that no bolts needed to be installed in an area where no further mining would
be done (Tr. 196-198). Mr. McGuire testified that they completed mining of
coal in the area after the continuous-mining machine was repaired and that
they did not install any additional roof bolts because they did not need to
do so (Tr. 577).
Once again, I find that the inspector's testimony is more credible than
Mr. McGuire's because Mr. Puckett, the mine foreman, was with the inspector
when the inspector made his measurements and all discussions about the abatement of the violation were with Mr. Puckett rather than with Mr. McGuire.
Additionally, Mr. McGuire stressed in his testimony the difficulty he was
having replacing the pump motor. The inspector stated that Mr. McGuire continued to work on the continuous-mining machine all the time the inspector
was examining the section (Tr. 195). As interested as Mr. McGuire was to
restore the continuous-mining machine to operation, it is unlikely that he
would have taken out time from that important matter to check the distance
between roof bolts and if he had, his statements in this proceeding have
shown that he would have hotly contested an inspector's claim that roof
bolts had been installed excessively wide apart if, in fact, they bad not
been so installed.
As the inspector testified, rocks may fall from the area between roof
bolts when they are installed on an excessively wide spacing, but in this
instance, the violation appears to be moderately serious since the inspector
did not observe any obviously bad roof. There was a high degree of negligence
because respondent has previously been cited for installing roof bolts on a
wider spacing than its roof-control plan permits (Tr. 197; Exh. 18). In such
circumstances, a penalty of $50 is warranted, keeping in mind respondent's
difficult financial condition.
Docket No. PIKE 78-308-P
Notice No. 3 EDF (7-40) 7/15/77 § 75.326 (Exhibit 51)
Findings. Section 75.326 requires that return air courses be separated
from belt haulage entries. Respondent violated section 75.326 because there
were holes ranging from 1/3 of an inch to 2 inches in length in three pe.rmanent stoppings located outby spad No. 5162 (Tr. 389). The violation was only
moderately serious because it was not proven that the holes extended all the
way through the stoppings and no methane has been detected in respondent's
mine. The inspector did not take either a methane reading or a bottle sample
of air to check for methane on the day the notice was written (Tr. 392; 396399). There was a low degree of negligence because both sides of the cinder

3652

Since the violation was very serious and there was a rather high degree
of negligence, a penalty of $100 will be assessed for this violation of section 75.400, bearing in mind respondent's difficult financial condition.
Order No. 65862 3/15/78 § 75.1725 (Exhibit 57)
Findings. Order No. 65862, discussed above, also alleged a violation of
section 75.1725 which provides that machinery and equipment shall be maintained
in a safe operating con4ition and that equipment in an unsafe condition shall
be removed from service immediately. Respondent violated section 75.1725
because the stuck rollers, float coal dust, and loose coal along the conveyor
belts had created unsafe conditions, but the conveyor belts were being used
for producing coal despite the fact that they were exposing the miners to a
possible fire or explosion because of the stuck rollers and undue amount of
combustible materials which existed along and under them (Tr. 823; 861).
Conclusions. The violation of section 75.1725 is interrelated with the
violation of section 75.400. I frequently have cases in which violations of
section 75.400 are cited and the inspectors state that they also found stuck
rollers which produce an ignition hazard. The ignition hazard is taken into
consideration under the criterion of gravity-in assessing a penalty for the
violation of section 75.400. All inspectors could technically cite a violation of section 75.1725 every time they find stuck rollers, but it has been
my experience that they rarely cite section 75.1725 in conjunction with
stuck rollers associated with loose coal and coal-dust accumulations. Since
I have taken the gravity of the violation of section 75.1725, having to do
with stuck rollers, into consideration in the assessment of the penalty for
the violation of section 75.400 also cited in Order No. 65862, I believe
that the additional violation of section 75.1725 should not be given an
incrementally high penalty. In such circumstances, a penalty of $5 will be
assessed for this violation of section 75.1725, bearing in mind respondent's
difficult financial condition.
Order No. 65862 3/15/78 § 75.1101-1 (Exhibit 57)
Findings. Order No. 65862, discussed above, also alleged a violation of
section 75.1101-1 which provides that deluge-type spray systems shall be
installed at main and secondary belt-conveyor drives. Such sprays become
operative when there is a rise in temperature great enough to cause a fire
sensor to activate a control valve. Respondent violated section 75.1101-1
because the deluge-type spray system at the No. 3 conveyor-belt drive was
rendered inoperative by disconnection of the chain and sensors which cause
the control valve to open. Additionally, some of the water sprays were
broken (Tr. 825). The violation was serious because combustible materials
were present in the vicinity of the No. 3 belt head and the deluge-type
spray system would not have assisted in putting out any fire which might
have occurred (Tr. 828; 861). There was a high degree of negligence because
the preshift examiner should have observed that the chain to the valve was
disconnected or broken with the result that the deluge-type water system
would not work if needed (Tr. 826).

3655

Conclusions. Respondent's witness, Mr. McGuire, stated that the firesuppression system and chain controlling the valve were connected when he
inspected the conveyor-belt drives cited in Order No. 65862 (Tr. 878). Inasmuch as Mr. McGuire was not present at the time the inspector observed the
conditions along the conveyor belts, I conclude that the inspector's testimony is sufficiently credible to support my findings above that the violation occurred, that it was serious, and that respondent was negligent. The
inoperative water-deluge system was taken into consideration above in
assessing a penalty for the violation of section 75.400 cited in Order
No. 65862. In view of the interrelated overlapping of the violations cited
in Order No. 65862, a penalty of $25 will be assessed for this violation of
section 75.1101-1.
Docket No. PIKE 79-77-P
Citation No. 65863 3/21/78 § 75.601 (Exhibit 60)
Findings. Section 75.601, to the extent here pertinent, provides that
the disconnecting devices used to disconnect power from trailing cables shall
be plainly marked and identified and that such devices shall be designed so
that it can be determined by one's eyesight that the power is disconnected.
The preponderance of the evidence shows that no violation of section 75.601
occurred (Tr. 883-905). The sole action that respondent had to take to abate
the alleged violation was to paint the female and male receptacles for each
piece of equipment a matching color so that an illiterate person would theoretically be able to determine which circuit breaker should be connected to
a given piece of equipment. Respondent's power center had been manufactured
specifically for the types of equipment used in respondent's mine (Tr. 892).
Therefore, each circuit breaker and trailing cable had already been labeled,
before Citation No. 65863 was written, so that a person who can read would
know which circuit breaker to connect for the continuous-mining machine, or
roof-bolting machine, or shuttle car. Moreover, a chain was attached to each
disconnect device so that the power for the shuttle car, for example, could
not be plugged into the circuit for the continuous"-mining machine or roofbolting machine. Consequently, even an illiterate person would not be able
to connect the wrong trailing cable to the wrong circuit in the power center.
There is nothing in section 75.601 which specifically requires respondent to
paint the disconnect devices with different colors of paint so that an
illiterate person would be able to determine, for example, that a pink plug
is to be connected only with a matching pink receptacle in the power center.
Finally, since the circuit breakers for the off-drive shuttle car and the
standard-drive shuttle car are the same size, an illiterate person would be
unable to determine, if, for example, he were sent to the power center to
disconnect the trailing cable for the off-drive shuttle car, whether he
would be supposed to disconnect the circuit breaker painted blue or the
circuit breaker painted yellow in order to be sure that he was disconnecting
the off-drive shuttle car instead of the standard-drive shuttle car.

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Conclusions. In this instance, I have chosen to accept the testimony of ..l,
respondent's witness, Mr. Leslie, as being more credible than that of the
~
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3656

inspector. Mr. Leslie was with the inspector when Citation No. 65863 was
written and Mr. Leslie's testimony shows that he is more familiar with the
electrical equipment in the mine than"the inspector was. Mr. Leslie testified
that it was necessary for him to purchase five different colors of paint for
application to the disconnect devices in order to abate the citation (Tr.
892). The inspector claimed that the disconnect devices were neither marked
nor color-coded (Tr. 891), but Mr. Leslie claimed that the power center was
ordered from the factory with labels for the various types of equipment
already installed on the equipment (Tr. 893). Mr. Leslie introduced as
Exhibit E a picture of the type of device which is used to connect equipment
at the power center (Tr. 902). There is no reason to believe that Mr. Leslie
was mistaken about the types of labels which he had requested the manufacturer
to place on the disconnect devices (Tr. 894).
It should be noted that the language used in Citation No. 65863 is
susceptible to the interpretation of the facts given by Mr. Leslie because the
citation alleges that the "* * * connecting plugs were not plainly marked or
colored" (Exh. 60). Since the connecting plugs had already been plainly marked
before the citation was written, it was necessary for the inspector to use the
words "plainly marked or colored" in his citation in order to show that the
conditions he observed constituted a violation of section 75.601 because the
language in that section requires plain marking but fails to mention colorcoding. If respondent's disconnect devices had not already been plainly
marked, the inspector could have required color-coding as one way of accomplishing the plain marking required by section 75.601, but the inspector cannot properly cite respondent for violating section 75.601 when plugs and
receptacles have already been plainly marked, but the inspector additionally
wants the disconnect devices painted with matching colors as a means of
further plainly marking the disconnect devices for the benefit of illiterate
persons who are unable to read the labels which respondent had already placed
on the disconnect devices.
For the foregoing reasons, the Petition for Assessment of Civil Penalty
filed in Docket No. PIKE 79-77-P will be dismissed insofar as it alleges a
violation of section 75.601 in Citation No. 65863 dated March 21, 1978.
Citation No. 65864 3/21/78 § 75.503 (Exhibit 62)
Findings. Section 75.503 requires that electrical equipment used inby
the last open crosscut be permissible. Respondent violated section 75.503
because an opening in excess of .005 of an inch was present between the cover
plate at the top of the trailing cable junction box and at the bottom of the
main panel box on the continuous-mining machine (Tr. 907). The violation
was moderately serious because, although no methane was present at the time
the violation was observed, it is always possible for methane to accumulate
in a coal mine so as to ca~se an explosion (Tr. 911). There was a low
degree of negligence because no bolts were missing and the machine vibrates
constantly so that it may jar bolts loose. The inspector did not know how
long the .005 of an inch opening had existed (Tr. 913).

3657

Conclusions. The operator's witness, Mr. Leslie, testified that he
could not dispute the existence of the .005 of an inch opening because he
personally observed the inspector insert· the .005 of an inch gauge into the
opening (Tr. 917). Since the violation was moderately serious and there was
a low degree of negligence, a penalty of $15 will be assessed for this violation of section 75.503, bearing in mind respondent's difficult financial
condition.
Citation No. 65865 3/21/78 § 75.503 (Exhibit 64)
Findings. Respondent violated section 75.503 again because an opening in
excess of .005 of an inch existed on the No. 2 Joy shuttle car between the
cover plate and the panel box. Additionally, the headlights were inoperative
on both ends of the shuttle car. The violation was moderately serious as to
the opening in the panel box, but the lack of headlights on either end of the
shuttle car was serious because the shuttle car is driven around corners and
through crosscuts where the shuttle car becomes a hazard for miners who are
working on the section. There was a high degree of negligence in respondent's
permitting the shuttle car to be driven without having the lights replaced
(Tr. 921-929).
Conclusions. Respondent's primary defense as to the violation of section
75.503 alleged in Citation No. 65865 was that headlights on shuttle cars glare
in the eyes of the operator of the continuous-mining machine and consequently
the operators of the shuttle cars do not use the headlights even when the
lights are capable of being operated (Tr. 930-931). The inspector stated that
the operator of the shuttle car normally turned off the light on the end next
to the continuous-mining machine when coal was being loaded into the shuttle
car and turned on the light on the outby end of the shuttle car so as to avoid
blinding the operator of the continuous-mining machine. The inspector stated
that he had driven shuttle cars while using only his cap light for illumination, as was being done in this instance, and that he felt he had less light
than is needed to permit safe operation of the shuttle car (Tr. 928-929).
Inasmuch as the violation was serious and there was a high degree of negligence, a penalty of $25 will be assessed for this violation of section 75.503,
bearing in mind respondent's difficult financial condition.
Citation No. 65866 3/21/78 § 75.503 (Exhibit 66)
Findings. Respondent again violated section 75.503 by failing to have
operative headlights on either end of the No. 1 Joy shuttle car (Tr. 932-933).
Both the inspector and respondent's witness stated that their testimony with
respect to the lack of headlights on the No. 1 shuttle car would be identical
with the testimony they had already given with respect to the lack of headlights on the No. 2 shuttle c.ar (Tr. 933).
Conclusions. Since this violation was identical with the previous violation as to the No. 2 shuttle car, the same findings would apply and a penalty
of $25 should be assessed for this violation of section 75•503.

3658

Citation No. 65867 3/22/78 § 77.1605(a) (Exhibit 68)
Findings. Section 77.1605(a) provides that cab windows shall be in good
condition and shall be kept clean. Respondent violated section 77.1605(a)
because a truck loading coal at respondent's loading chute had three or four
cracks in the windshield on the driver's side. The violation was moderately
serious because glares from the cracks in the windshield might have caused
the driver to have an accident resulting from his inability to see clearly
through the cracked windshield. Respondent was not negligent because the
truck with the cracked windshield was used to haul one load of coal from
respondent's mine. The truck had never been driven to respondent's mine on
any occasio~ prior to the time the cracked windshield was observed by the
inspector and was never used to haul coal from respondent's mine on any
other occasion (Tr. 937-946; 947-949).
Conclusions. The truck involved in the violation alleged in Citation
No. 65867 was driven to respondent's mine to obtain a single load of coal.
The circumstances were that the independent contractor's regular truck needed
to have a tire repaired. While the tire was being repaired, the person who
normally hauled coal for respondent asked a substitute driver to use that
driver's own truck to transport a load of coal from respondent's mine. The
substitute truck had the cracked windshield described in Citation No. 65867,
but respondent was unaware that the substitute truck and driver had been
asked to haul a load of coal from respondent's mine and respondent's owners
were not close enough to the truck on its single visit to respondent's mine
to know that it had a cracked windshield (Tr. 948-949). Moreover, the
inspector terminated the citation without ever knowing whether the crack in
the windshield was ever replaced because the citation was terminated with an
explanation that the truck left mine property and was no longer used to haul
coal from respondent's mine (Exh. 70).
The Commission held in Republic Steel Corp., 1 FMSHRC 5 (1979), Kaiser
Steel Corp., 1 FMSHRC 343 (1979), Consolidation Coal Co., 1 FMSHRC 347 (1979),
Old Ben Coal Co., 1 FMSHRC 1480 (1979), and Monterey Coal Co., 1 FMSHRC 1781
(1979), that an operator may be held liable for violations by independent contractors even if the independent contractors' employees are the only persons
involved in a particular violation. Therefore, the inspector properly cited
respondent for the violation of the substitute independent contractor in this
instance because respondent would have been liable for a violation committed
by the driver of the truck which was normally used to haul coal from respondent's mine and can be held liable for violations committed by a substitute
driver who is hired by the independent contractor who normally hauls respondent's coal.

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In view of the fact that only one load of coal was hauled by the truck
involved in Citation No. 65867, I think that only a nominal penalty should be
assessed in the circumstances which prevailed in this instance. Therefore,
a penalty of only $1 will be assessed for this violation of section 77.1605(a).

1.
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3659

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Docket No. KENT 79-1
Citation No. 64600 11/16/78 § 75.1722(b) (Exhibit 71)
Findings. Section 75.1722(b) provides that guards at conveyor-drive,
conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient
to prevent a person from reaching behind the guard and becoming caught
between the belt and the pulley. Respondent violated section 75.1722(b)
because an adequate guard had not been provided for the No. 2 conveyor belt
~rive and discharge roller inasmuch as a person could become caught between
the belt and pulley. The inadequate guard was located at the point where_
the No. 2 belt dumps coal on the No. 1 belt. Spillage of coal occurs at that
discharge point and it is necessary for a miner to clean up the spillage.
Therefore, the violation was serious because an inadequate guard exposes the
miner who is cleaning up the coal to becoming caught between the belt and the
pulley. Respondent was negligent because a chain-link fence had been erected
around the exposed machine parts, but the guard had been taken down so that
it provided no protection at the time the violation was observed by the
inspector. The examiner of the belt should have noticed the absence of the
guard and should have had it reinstalled in proper position (Tr. 951-961).
Conclusions. Respondent's witness, Mr. McGuire, testified that he was one
of the first persons ever to use a chain-link fence as a guard at conveyor
belt drives, but Mr. McGuire was not present at the time Citation No. 64600
was written and conceded that someone could have shoveled coal from under the
belt drive and could have left the fence down. He said it was the responsibility of the person who takes the fence down to rehang it (Tr. 974; 977). It
is respondent's duty to see that its employees comply with the safety standards, so I cannot find that respondent has a valid defense in this instance.
Since the violation was serious and respondent was negligent, a penalty of
$25 will be assessed for this violation of section 75.1722(b), bearing in
mind respondent's difficult financial condition.
SETTLED ISSUES
The matters to be considered in this portion of my decision are discussed
in the 47-page motion for approval of settlement filed on October 15, 1980, by
MSHA's counsel. Under the settlement agreement, respondent would pay penalties
totaling $4,631 instead of the penalties totaling $8,031 proposed by the
Assessment Office. The motion for approval of settlement disposes of the
remaining 82 violations which were not the subject 0£ the hearing held in 1979.
The motion considers violations alleged in Petitions for Assessment of Civil
Penalty which were filed in 12 different docket numbers. As previously indicated on page 2 of my decision, all of the violations alleged in the Petitions
for Assessment of Civil Penalty filed in Docket Nos. PIKE 78-451-P, PIKE
78-458-P, and KENT 79-1 were the subject of testimony introduced at the hearing held in 1979 and the issues raised in those three Petitions have been
entirely disposed of in the first portion of this decision which deals with
contested issues.

3660

Also, as previously indicated on page 2 of my decision, some of the
issues raised by the Petitions for Assessment of Civil Penalty filed in Docket
Nos. PIKE 78-308-P, PIKE 79-77-P, and PIKE 79-99-P are partially disposed of
in the portion of my decision devoted to the contested issues and the remainder
of the issues raised by the Petitions filed in those three docket numbers are
disposed of by the motion for approval of settlement. Finally, the issues
raised by the Petitions filed in the remaining nine docket numbers involved
in this consolidated proceeding are disposed of by the motion for approval of
settlement.
As to the six criteria which are used in determining penalties, it should
be noted that my decision on the contested issues has already made findings as
to three of 9those criteria, namely, the size of respondent's business, the
question of whether payment of penalties would cause respondent to discontinue
in business, and respondent's history of previous violations. The findings as
to the aforesaid three criteria are based on the evidence received during the
hearing held in 1979 and they are applicable to the settled issues as well as
to the contested issues which have already been considered above.

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The finding made in my decision with respect to a fourth criterion,
namely, that respondent had demonstrated a nor~al good faith effort to achieve
rapid compliance is applicable to the settled issues except for the alleged
violations which became the subject of withdrawal orders issued under section
104(b) of the Act. The motion for approval of settlement takes the position
that respondent did not demonstrate a good faith effort to achieve rapid compliance with respect to all violations involving issuance of withdrawal orders
under section 104(b) of the Act. Under the settlement agreement, respondent
has agreed to pay the full penalty proposed by the Assessment Office in all
instances involving issuance of withdrawal orders.
The motion for approval of settlement agrees that the evidence introduced
at the hearing held in 1979 shows that payment of penalties will have an
adverse effect on respondent's ability to continue in business •. The motion
states that respondent will have to secure a loan in order to pay the settlement penalties totaling $4,631 and asks that I gtve respondent a period of
90 days after issuance of my decision within which to pay the penalties
because respondent needs more than the normal 30-day period for obtaining the
loan before payment is due. I find that the request for a 90-day.period
within which to pay penalties is reasonable and the order accompanying this
decision will so provide. That request is especially reasonable when it is
considered that my decision with respect to the contested issues requires
respondent to pay penalties totaling $636 in addition to the settlement penalties totaling $4,631.

.,

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I shall now give consideration to the matters discussed in the motion for
approval of settlement.
Docket No. PIKE 78-308-P
The Petition for Assessment of Civil Penalty filed in Docket ·No. PIKE
78-308-P seeks assessment of penalties for 12 alleged violations. Two of
i

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3661

those violations have already been disposed of under the portion of this
decision devoted to contested issues. Respondent has agreed to pay the full
amount of the penalties proposed by the Assessment Office with respect to the
remaining 10 alleged violations except for Notices of Violation Nos. 4 RM
(7-45) and 2 RM (7-47) dated July 14 and July 15, 1977, respectively, as to
which MSHA's counsel indicates that no penalty should be paid for the two
violations of section 75.403 alleged in those notices because MSHA does not
have the results of the laboratory analyses of dust samples which are required
for proof of such violations (Hall Coal Co., Inc., 1 IBMA 175 (1972), and
Valley Camp Coal Co., 1 IBMA 243 (1972)).
The motion for approval of settlement states that MSHA declined to settle
Ehe two violations alleged in Notice Nos. 1 RM (7-42) and 2 RM (7-43) both
dated July 14, 1977, for less than the penalties of $106 each proposed by the
Assessment Office because respondent failed to abate the alleged violations
until after withdrawal orders were issued under section 104(b). The motion
avers that the failure to abate the alleged violations before withdrawal
orders were issued indicated a failure of respondent to demonstrate a good
faith effort to achieve rapid compliance.
I find that the motion for approval of settlement (pp. 7-11) has provided ample reasons for approving the settlement agreement under which respondent would pay total penalties of $534 instead of total penalties of $621 as
proposed by the Assessment Office for the remaining 10 alleged violations
involved in Docket No. PIKE 78-308-P.
Docket No. PIKE 79-25-P
The Petition for Assessment of Civil Penalty filed in Docket No.' PIKE
79-25-P seeks to have penalties assessed for 20 alleged violations. None of
those alleged violations were the subject to any testimony at the hearing held
in 1979. The Assessment Office proposed penalties totaling $3,509 in this
docket. Under the settlement agreement, respondent would pay reduced penalties totaling $960. More of the reductions in penalties involved in the parties' settlement agreement relate to the violations alleged in Docket No. PIKE
79-25-P than are involved in any of the other docket numbers. The motion for
approval of settlement (pp. 12-22) justifies many of the reductions on the
basis that respondent's mine has never shown a history of releasing methane
and on the fact that respondent has proven that it is in a very difficult
financial condition. Additionally, it is a fact that the Assessment Office
rated all of the violations alleged in Docket No. PIKE 79-25-P as being more
serious and involving a greater degree of negligence than it did for similar
violations involved in the other dockets. I find that the motion for
approval of settlement has shown adequate reasons for reducing the penalties
to the total of $960 which respondent has agreed to pay.
Docket No. PIKE 79-50-P
The Petition for Assessment of Civil Penalty filed in Docket No. PIKE
79-50-P seeks to have penalties assessed for two violations, neither of which

3662

was considered at the hearing held in 1979. Under the settlement agreement,
respondent would pay penalties totaling $85 instead of the penalties totaling
$174 proposed by the Assessment Office. The motion for approval of settlement (pp. 14 and 22) justifies the reduction in the proposed penalties on
the grounds, as to the permissibility violation, that no methane has ever
been detected in respondent's mine and that no negligence on the part of
respondent could be shown. As to the alleged violation of section 75.603,
the reduction is based on the fact that respondent was aware of the
existence of two temporary splices in the trailing cable and was in the
process of obtaining a new trailing cable. I find that adequate reasons
have been gi~en for approving tne reductions agreed upon as to the Petition
filed in Docket No. PIKE 79-50-P.
Docket No. PIKE 79-77-P
The Petition for Assessment of Civil Penalty filed in Docket No. PIKE
79-77-P seeks to have penalties assessed for seven alleged violations. All
but one of the alleged violations were the subject of evidence presented
during the 1979 hearing and have been disposed of in the section of this
decision devoted to the contested issues. Under the settlement agreement,
respondent has agreed to pay in full the penalty of $40 proposed by the
Assessment Office for the remaining alleged violation of section 75.1704
involved in this docket number. The motion for approval of settlement
(p. 22) justifies the proposed penalty of $40 by noting that the circumstances of the violation are such that negligence on the part of the operator cannot be established. I find that the penalty of $40 is reasonable
and that the settlement agreement with respect to this alleged violation
of section 75.1704 should be approved.
Docket No. PIKE 79-99-P
The Petition for Assessment of Civil Penalty filed in Docket No. PIKE
79-99-P seeks to have penalties assessed for four alleged violations. Three
of those alleged violations were the subject of testimony introduced at the
1979 hearing and have been disposed of in the section of this decision
devoted to contested issues. Under the settlement agreement, respondent
would pay a reduced penalty of $40 instead of the penalty of $80 proposed
by the Assessment Office for the violation of section 75.400 which has not
already been considered as a part of the contested issues. The motion for
approval of settlement {pp. 23-24) justifies the reduction primarily on the
ground that respondent is in a difficult financial condition. I find that
a sufficient reason has been given for approving the parties' settlement as
to Docket No.• PIKE 79-99-P.
Docket No. KENT 79-125
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
79-125 seeks to have penalties assessed for eight alleged violations, none of
which were the subject of the hearing·held in 1979. Under the settlement
agreement, respondent would pay reduced penalties of $443 instead of the

3663

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penalties totaling $618 proposed by the Assessment Office. The motion for
approval of settlement (pp. 14; 23-26) discusses each of the eight alleged
violations in detail. All of them were from moderately serious to serious
and each was accompanied by at least ordinary negligence. Therefore, the
primary reason for the parties' agreement to reduce the penalties in this
docket number is that respondent is in a difficult financial condition.
That has been the primary reason for the fact that I assessed low penalties
in the portion of this decision which was devoted to the contested issues
and those findings support the parties' settlement agreement which I find
should be approved as to Docket No. KENT 79-125.
Docket No. KENT 79-151
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
79-151 seeks to have a civil penalty assessed for a single violation of section 75.400. Unde~ the settlement agreement, respondent would pay the full
penalty of $445 proposed by the Assessment Office. The motion for approval
of settlement (p. 27) states that this alleged violation of section 75.400
was not considered at the hearing held in 1979. While it is true that
Inspector McClanahan, who wrote the citation and order involved in Docket
No. KENT 79-151, did not testify at the hearing held in 1979, some of the
testimony at the 1979 hearing did show that one of respondent's owners and
Inspector McClanahan had had an altercation which caused the co-owner to
order the inspector off of mine property (Tr. 782-783).
Inasmuch as the hearing was never reconvened so that the inspector could
give his version of the facts which led to the altercation, I am not making
any findings about the merits of the dispute between the inspector and one
of respondent's owners, but I think that the testimony as to the respondent's
version of the controversy should be mentioned in view of the fact that the
motion for approval of settlement (p. 28) primarily bases MSHA's refusal to
reduce the proposed penalty in this instance on the fact that respondent
declined to allow the inspector to come on mine property to determine whether
the alleged violation of section 75.400 had been abated. The fact that
respondent has agreed to pay a rather high penalty for what would otherwise
have been considered to be a moderately serious violation is sufficient reason to approve the settlement agreement with respect to the violation of section 75.400 alleged in Docket No. KENT 79-151.
Docket No. KENT 80-28
'The Petition for Assessment of Civil Penalty filed in Docket No. KENT
80-28 seeks to have penalties assessed for two alleged violations. Under the
settlement agreement, respondent would pay reduced penalties totaling $360
instead of the penalties of $650 proposed by the Assessment Office. Respondent has agreed to pay the full amount of $60 proposed by the Assessment
Office with respect to an alleged violation of section 75.1725. The other
alleged violation related to a charge that respondent had violated its
ventilation, methane and dust-control plan by failing to install a proper
seal at a point where the operator had cut into an abandoned mine. Respondent had constructed a seal made of cinder blocks, but the seal was required

3664

I ;

to be made of concrete blocks and be provided with a water seal. It was
necessary for a withdrawal order to be issued before the violation was abated.
The motion for approval of settlement (p. 30) indicates that MSHA agreed to
reduce the proposed penalty proposed by the Assessment Office from $590 to
$300 primarily for the reason that respondent is in a difficult financial
condition. I find that adequate reasons have been given for approving the
settlement agreement with respect to the Petition filed in Docket No. KENT
80-28.
- ./

Docket No. KENT 80-31
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
80-31 seeks to have penalties assessed for 17 alleged violations. Under the
settlement agreement, respondent would pay the total penalties of $772 proposed by the Assessment Office. The Proposed Assessment sheet in this docket
indicates that the Assessment Office had current information about respondent's size at the time the penalties here involved were determined under the
formula provided for in 30 C.F.R. § 100.3. The Assessment Office assigned
penalty points based on a finding that respondent is a very small operator.
The Assessment Office found that ordinary negligence was associated with all
of the 17 alleged violations and that all of them were either moderately
serious or serious. The motion for approval of settlement states that MSHA's
counsel considers several of the violations to be serious enough to warrant
assessment of penalties larger than those proposed by the Assessment Office,
but MSHA's counsel states that he agreed to settle all of the alleged violations at the amounts proposed by the Assessment Office under the criterion
that payment of large penalties would have a very adverse effect on respondent's ability to continue in business. I find that adequate reasons have
been shown to approve the settlement agreed upon as to the 17 violations
alleged in Docket No. KENT 80-31.

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Docket No. KENT 80-32
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
80-32 seeks to have penalties assessed for four alleged violations. In this
docket, the Assessment Office also rated respondent as operating a very small
business and proposed low penalties totaling $200 based on findings that each
violation was associated with ordinary negligence and was moderately serious
or serious. Under the settlement agreement, respondent would pay penalties
totaling $173. The only penalty which was reduced below the amount proposed
by the Assessment Office is for a violation of section 75.316 alleged in
Citation No. 703939 dated April 30, 1979. As to that violation, which was
based on the inspector's charge that only 2 of 24 water sprays on the
continuous-mining machine were operable, the motion f'or approval of settlement states that the reduction from a proposed penalty of $72 to a settlement
penalty of $45 was based on respondent's difficult financial condition. I
find that an adequate reason has been given for approving the settlement
agreed upon in Docket No. KENT 80-32.

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3665

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Docket No. KENT 80-33
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
80-33 seeks to have penalties assessed for six alleged violations. Under the
settlement agreement, respondent would pay penalties totaling $340 instead of
the penalties totaling $358 proposed by the Assessment Office. The only penalty reduced by the settlement agreement below the amount proposed by the
Assessment Office relates to Citation No. 713703 dated May 14, 1979, alleging
a violation of section 75.1725 because a shuttle car's brakes were inoperative. The Assessment Office proposed a penalty of $78 for the violation of
section 75.1725. The motion for approval of settlement (p. 29) had agreed to
settle a previous violation of section 75.1725, pertaining to a shuttle car's
- brakes, on the basis of a $60 penalty involving a very similar violation. The
settlement agreement consistently agreed to reduce the $78 penalty proposed by
the Assessment Office for this very similar violation to the same amount, that
is, $60. MSHA's counsel agreed on a penalty of $60 in each instance because
of respondent's poor financial condition. I find that the settlement agreement proposed in Docket No. KENT 80-33 should be approved for the reason
stated above.
Docket No. KENT 80-68
The Petition for Assessment of Civil Penalty filed in Docket No. KENT
80-68 seeks penalties for seven alleged violations. Under the settlement
agreement, respondent would pay total penalties of $439 instead of the total
penalties of $560 proposed by the Assessment Office. The Assessment Office
considered that all of the alleged violations were associated with ordinary
negligence and considered all of the violations to be moderately serious or
serious. The Assessment Office proposed a penalty of $140 for a permissibility violation alleged in Citation No. 713717 dated May 31, 1979. Since
respondent's mine has never been known to liberate methane, permissibility
violations have not been considered to be very serious in this proceeding.
In this instance, however, the Assessment Office proposed a large penalty of
$140 because the respondent failed to abate the violation in a timely manner
which resulted in the issuance of a withdrawal order. The Assessment Office,
therefore, assigned 10 penalty points under 30 C.F.R. § 100.3 because it
believed that respondent had failed to demonstrate a good faith effort to
achieve compliance. The motion for approval of settlement (p. 44) shows
that MSHA's counsel would not agree to a reduction of that relatively large
penalty because of respondent's lack of good faith abatement •
. The settlement agreement indicates that MSHA's counsel agreed to reduce
three of the seven violations by a total of $121. A reduction of $10 in the
$60 penalty proposed for the violation of section 75.601 alleged in Citation
No. 713719 dated May 31, 1979, was agreed upon because of respondent's poor
financial condition (Motion, p. 45). A reduction of $46 in the penalty of
$106 proposed for the violation of section 77.504 alleged in Citation
No. 714047 dated June 11, 1979, was made in the settlement agreement because
of respondent's poor financial condition (Motion, p. 46). Finally, a reduction of $65 was made in the penalty of $90 proposed for the violation of

3666

section 77.512 in Citation No. 714048 dated June 12, 1979, partly because
of respondent's poor financial condition and partly because the condition
e
f

described in Citation No. 714048 was also covered by the condition described
in Citation No. 714047 for which respondent is paying a penalty of $60
(Motion, p. 47). I find that adequate reasons have been given for approving
the settlement agreed upon by the parties for the violations alleged by the
Petition filed in Docket No. KENT 80-68.

'-- ..

Summary of Assessments and Conclusions

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(1) On the basis of all the evidence received at the hearing held in
this proce;ding in October 1979 and the parties' motion for approval of
settlement filed on October 15, 1980, the following civil penalties should
be assessed:

l !

at

Docket No. PIKE 78-308-P
Notice No. 3 EDF (7-40) 7/15/77 § 75.326 •• (Contested)
$
Notice No. 4 EDF (7-41) 7/15/77 § 75.200 •• (Contested)
Notice No. 1 RM (7-42) 7/14/77 § 75.200 ••• (Settled) ••••
Notice No. 2 RM (7-43) 7/14/77 § 75.200
(Settled) ••••
Notice No. 3 RM (7-44) 7/14/77 § 75.400
(Settled) ••••
Notice No. 4 RM (7-45) 7/14/77 § 75.403
(Dismissed) ••
Notice No. 1 RM (7-46) 7/15/77 § 75.302-1 • (Settled) ••••
Notice No. 2 RM (7-47) 7/15/77 § 75.403
(Dismissed) ••
Notice No. 3 RM (7-48) 7/15/77 § 75.400
(Settled)
Notice No. 1 RM (7-49) 7/19/77 § 75.326
(Settled)
Notice No. 2 RM (7-50) 7/19/77 § 75.316
(Settled)
Notice No. 2 RM (7-52) 7/20/77 § 75.301-1 • (Settled)
Total Contested and Settled Penalties in
Docket No. PIKE 78-308-P ••••••••••••••••••• $

15.00
50.00
106.00
106.00
61.00

o.oo

34.00

o.oo

102.00
46.00
36.00
43.00
599.00

Docket No. PIKE 78-451-P
(All Contested)

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Notice No. 1 JM (7-57) 8/18/77 § 75.200 •••••••••••••••••• $
Total Contested (None Settled) Penalties in
Docket No. PIKE 78-451-P ••••••••••••••••••• $

100.00
100.00

Docket No. PIKE 78-458-P
(All Contested)
·~. )

Notice No. 3 VER (7-50) 8/1/77 § 75.400 •• (Dismissed) ••• $
Notice No. 1 EDF (7-63) 10/12/77 § 75.400
Notice No. 2 EDF (7-64) 10/12/77 § 75.400 ··••••o•e•o•••••o
Notice No. 3 EDF (7-65) 10/12/77 § 75.503
Notice No. 5 EDF (7-67) 10/12/77 § 75.400
Notice No. 6 EDF (7-68) 10/12/77 § 75.807 • • • • • • • • • c. • • • • • •
Notice No. 7 EDF (7-69) 10/12/77 § 75.200
Notice No. 8 EDF (7-70) 10/12/77 § 75.507

............... .
••••••••• 0

••••••

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

o.oo
15.00
15.00
15.00
15.00
25.00
50.00
20.00

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

Notice No. 1 EDF (7-71) 10/13/77 § 75.1725
Notice No. 1 EDF (7-72) 10/14/77 § 77.1605(k)
Notice No. 1 EDF (7-73) 10/17/77 § 75.604
Notice No. 2 EDF (7-74) 10/17/77 § 75.200 •• (Dismissed)
Notice No. 1 EDF (7-75) 10/18/77 § 75.316
Notice No. 2 EDF (7-76) 10/18/77 § 75.316
Notice No. 2 EDF (7-78) 10/20/77 § 75.1101-1
Notice No. 3 EDF (7-79) 10/20/77 § 7~.1102 ~··············
Notice No. 4 EDF (7-80) 10/20/77 § 75.516-2
Total Contested (None Settled) Penalties in
Docket No. PIKE 78-458-P
$

5.00
20.00
15.00

o.oo

5.00
15.00
5.00
15.00
15.00
250.00

Docket No. PIKE 79-25-P
(All Settled)

.....................
...................... $
......................
.....................
......................
......................
....................
....................
......................
......................
.....................
.....................
.....................
...................
......................
...................
......................
.......................
.....................
.......................... $

Citation No. 63654 6/19/78 § 75.1722
Citation No. 63655 6/19/78 § 75.200
Citation No. 63656 6/19/78 § 75.200
Citation No. 63657 6/19/78 § 75.1722
Citation No. 63658 6/19/78 § 75.503
Citation No. 63659 6/19/78 § 75.313
Citation No. 63660 6/19/78 § 75.301-4
Citation No. 63801 6/19/78 § 75.523-2
Citation No. 63802 6/19/78 § 75.503
Citation No. 63803 6/19/78 § 75.503
Citation No. 63804 6/19/78 § 75.1704-2(d)
Citation No. 63805 6/19/78 § 75.1710
Citation No. 63806 6/19/78 § 75.1710
Citation No. 63807 6/19/78 § 75.1722
Citation No. 63809 6/19/78 § 75.1100-2
Citation No. 63810 6/19/78 § 75.316
Citation No. 63811 6/20/78 § 75.1101-6
Citation No. 63812 6/20/78 § 75.316
Citation No. 63813 6/20/78 § 75.316
Citation No. 63814 6/20/78 § 75.503
Total Settled (None Contested) in Docket
No. PIKE 79-25-P
•

• • • ai • • • • 0

••••••

45.00
50.00
35.00
45.00
50.00
35.00
46.00
60.00
50.00
50.00
50.00
50.00
50.00
49.00
50.00
50.00
60.00
50.00
50.00
35.00
960.00

Docket No. PIKE 79-50-P
(All Settled)
Citation No. 63815 6/20/78 § 75.503 •••••••••••••••••••••• $
Citation No. 63816 6/20/78 § 75.603 ••••••••••••••••••••••
Total Settled (None Contested) in Docket
No. PIKE 79-50-P ··········•o••••••••••e••• $

35.00
50.00
85.00

Docket No. PIKE 79-77-P
Notice No. 1 EDF (7-81) 10/31/77 § 75.1100-2 (Dismissed)
Citation No. 65863 3/21/78 § 75.601 •••••• (Dismissed)...

$

0.00
0.00

Citation No. 65864 3/21/78 § 75.503
(Contested)
Citation No. 65865 3/21/78 § 75.503
(Contested)
Citation No. 65866 3/21/78 § 75.503
(Contested)
Citation No. 65867 3/22/78 § 77.1605 •••• (Contested)
Citation No. 63817 6/21/78 § 75.1704 •••• (Settled) •••••
Total Contested and Settled Penalties in
Docket No. PIKE 79-77-P •••••••••••••••••••

15.00
25.00
25.00
1.00
40.00
$

__j

106.00

Docket No. PIKE 79-99-P
Order No. 65862 3/15/78 § 75.400 •••••••• (Contested)
Order No.·65862 3/15/78 § 75.1725 ••••••• (Contested)
Order No. 65862 3/15/78 § 75.1101-1 ••••• (Contested)
Citation No. 63808 6/19/78 §' 75.400 ••••• (Settled) •••••
Total Contested and Settled Penalties in
Docket No. PIKE 79-99-P •••••••••••••••••••

._.i'

$

100.00
5.00
25.00
40.00

$

170.00

;

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Docket No. KENT 79-1
(All Contested)
Citation No. 64600 11/16/78 § 75.1722(b) •••••••••••••••• $
Total Contested (None Settled) Penalties in
Docket No. KENT 79-1 •••••••••••••••••••••• $

25.00
25.00

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Docket No. KENT 79-125
(All Settled)

....................
..................... $
.....................
.....................
.....................
.....................
.....................
.....................
.................... $

Citation No. 64310 9/18/78 § 75.1710
Ci tat ion No. 64311 9/18/78 § 75.503
Citation No. 64312 9/18/78 § 75.400
Citation No. 64313 9/18/78 § 75.515
Citation No. 64314 9/18/78 § 75.515
Citation No. 64315 9/18/78 § 75.601
Citation No. 64330 9/18/78 § 75.400
Citation No. 64331 9/19/78 § 75.512
Total Settled (None Contested) Penalties in
Docket No. KENT 79-125

I

52.00
50.00
40.00
56.00
56.00
75.00
66.00
48.00

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443.00

445.00
445.00
; - ·1

Docket No. KENT 80-28
(All Settled)
Citation No. 703899 4/26/79 § 75.1725 ••••••••••••••••••• $
Citation No. 703940 5/4/79 § 75.316 •••••••••••••••••••••
Total Settled (None Contested) Penalties in
Docket No. KENT 80-28 ••••••••••••••••••••• $

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60.00
300.00
360.00

I

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3669

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Docket No. KENT 79-151
(All Settled)
Citation No. 64969 12/13/78 § 75.400 •••••••••••••••••••• $
Total Settled (None Contested) Penalties in
Docket No. KENT 79-151 •••••••••••••••••••• $

,

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Docket No. KENT 80-31
(All Settled)
Citation No. 703896 4/26/79 § 77.701 •••••••••••••••••••• $
Citation No. 703898 4/26/79 § 77.701 ••••••••••••••••••••
Citation No. 703900 4/26/79 § 77.506 ••••••••••••••••••••
Citation No. 703930 4/26/79 § 75.1725 •••••••••••••••••••
Citation No. 703931 4/26/79 § 75.400 ••••••••••••••••••••
Citation No. 703932 4/26/79 § 75.316 ••••••••••••••••••••
Citation No. 703933 4/26/79 § 75.200 ••••••••••••••••••••
Citation No. 703935 4/26/79 § 75.1103 •••••••••••••••••••
Citation No. 703961 4/26/79 § 75.523 ••••••••••••••••••••
Citation No. 703936 4/30/79 § 75.200 ••••••••••••••••••••
Citation No. 703937 4/30/79 § 75.200 ••••••••••••••••••••
Citation No. 703962 4/30/79 § 75.604 ••••••••••••••••••••
Citation No. 703963 4/30/79 § 75.604 ••••••••••••••••••••
Citation No. 703964 4/30/79 § 75.503 ••••••••••••••••••••
Citation No. 703965 4/30/79 § 75.503 ••••••••••••••••••••
Citation No. 703967 4/30/79 § 75.523 ••••••••••••••••••••
Citation No. 703968 4/30/79 § 75.1722 •••••••••••••••••••
Total Settlement (None Contested) Penalties in
Docket No. KENT 80-31 ••••••••••••••••••••• $

52.00
60.00
40.00
52.00
40.00
40.00
56.00
52.00
34.00
36.00
56.00
38.00
56.00
38.00
30.00
36.00
56.00
772.00

Docket No. KENT 80-32
(All ·Settled)
Citation No. 703897 4/26/79 § 77.1605(a) •••••••••••••••• $
Citation No. 703934 4/26/79 § 75.1100-2 ••••••••••••••••
Citation No. 703938 4/30/79 § 75.400 ••••••••••••••••••••
Citation No. 703939 4/30/79 § 75.316 ••••••••••••••••••••
Total Settled (None Contested) Penalties in
Docket No. KENT 80-32 ••••••••••••••••••••• $

40.00
52.00
36.00
45.00
173.QO

Docket No. KENT 80-33
(All Settled)
Citation No. 713455 5/2/79 § 75.604 •••••••••••••••••••• $
Citation No. 713456 5/2/79 § 75.200 ••••••••••••••••••••
Citation No. 713703 5/14/79 § 75.1725 ••••••••••••••••••
Citation No. 713707 5/14/79 § 75.603 •••••••••••••••••••
Citation No. 713708 5/14/79 § 75.503 •••••••••••••••••••
Citation No. 713710 5/14/79 § 75.200 •••••••••••••••••••
Total Settled (None Contested) Penalties in
Docket No. KENT 80-33 •••••••••••••••••••• $

60.00
66.00
60.00
60.00
34.00
60.00
340.00

Docket No. KENT 80-68
(All Settled)
Citation No. 713717 5/31/79 § 75.503 ••••••••••••••••••• $
Citation No. 713718 5/31/79 § 75.1177 ••••••••••••••• ·•••

3670

140.00
52.00

...................
...................
...................
...................
...................
.................... $

Citation No. 713719 S/31/79 § 7S.601
Citation No. 713720 S/31/79 § 77 .sos
Citation No. 714S81 S/31/79 § 77. 700
Citation No. 714047 6/11/79 § 77 .S04
Citation No. 714048 6/11/79 § 77.Sl2
Total Settled (None Contested) Penalties in
Docket No. KENT 80-68
Total Contested and Settled Penalties in
This Proceeding

.......................... $

so.oo
s2.oo
60.00
60.00
2s.oo
439.00

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S,267.00

(2) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 78-308-P should be dismissed insofar as it seeks to have penalties
assessed for the violations of section 7S.403 alleged in Notice Nos. 4 RM
(7-45) and 2 RM (7-47) dated July 14 and July lS, 1977, respectively, because
the motion for approval of settlement (p. 9) states that the analyses of the
dust samples required to prove those alleged violations are unavailable.

'

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,,

(3) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 78-4S8-P should be.dismissed to the extent that it seeks assessment of
a penalty for the violation of section 7S.400 alleged in Notice No. 3 VER
(7-SO) dated August 1, 1977, because MSHA's counsel stated at the hearing
that the inspector who wrote Notice No. 3 VER was unavailable to testify in
support of the alleged violation (Tr. 119).
(4) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 78-4S8-P should also be dismissed to the extent that it seeks to have a
penalty assessed for the violation of section 7S.200 alleged in Notice No. 2
EDF (7-74) dated October 17, 1977, because of MSHA's failure to prove that
the violation occurred.
(S) The Petition for Assessment of Civil Penalty filed in Docket No
PIKE 79-77-P should be dismissed to the extent that it seeks to have a pen- ·
alty assessed for the violation of section 7S.1100-2 alleged in Notice No. 1
'EDF (7-81) dated October 31, 1977, because of MSRA's failure to prove that
the violation occurred.
(6) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 79-77-P should also be dismissed to the extent that it seeks to have a
penalty assessed for the violation of section 7S.601 alleged in Citation
No. 65863 dated March 21, 1978, because of MSRA's failure to prove that the
violation occurred.

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(7) Respondent, as the operator of the Nos. 2, 3, 4, and 6 Mines
involved in this proceeding, is subject to the Act and to the regulations
promulgated thereunder.
WHEREFORE, it is ordered:
(A) Pursuant to the parties' settlement agreement and to my decision
concerning the contested issues, Little Bill Coal Company is ordered, within
..

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36'71

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•••
90 days from the date of this decision, to pay civil penalties totaling
$5,267.00, as summarized above in paragraph (1).
· (B) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 78-308-P is dismissed to the extent and for the reason given in
paragraph (2) above.
(C) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 78-458-P is dismissed to the extent and for the reasons given in
paragraphs (3) and (4) above.
(D) The Petition for Assessment of Civil Penalty filed in Docket No.
PIKE 79-77-P is dismissed to the extent and for the reasons given in
paragraphs (5) and (6) above.
(E) The motion for approval of settlement filed on October 15, 1980,
is granted and the settlement agreement described therein is approved.

~c.~

··&..
~

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

John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Herman W. Lester, Jr., Esq., Attorney for Little Bill Coal Company,
Inc., Combs and Lester, P.s.c., 207 Caroline Avenue, P.O. Box 551,
Pikeville, KY 41501 (Certified Mail)

3672

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

DEC t 7 1980
Civil Penalty Proceeding

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

Docket No. VA 80-84
A.C. No. 44-00294-03032V

Petitioner
v.

Virginia No. 1 Mine
EASTOVER MINING COMPANY,
Respondent
DECISION
Appearances:

Catherine Oliver, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Petitioner;
Karls. Forester, Esq., Harlan, Kentucky, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the Act),
to assess a civil penalty against Eastover Mining Company (hereinafter
Eastover) for a violation of a mandatory standard. The proposal for assessment of a civil penalty alleges a violation of 30 C.F.R. § 75.507 in that
nonpermissible power connection points were located in return air.
The parties filed preliminary statements and a hearing was held in
Abingdon, Virginia, on November 5, 1980. Inspector Herman Lucas testified
on behalf of MSHA. Larry Baker, David Gilly, and Robert Jessee testified on
behalf of Eastover. The parties submitted closing arguments at the hearing.
ISSUES
Whether Eastover violated the Act or regulations as charged by 11SHA and,
if so, the amount of the civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 75.507 provides as follows: "Except where permissible power
connections are used, all power connection points outby the last open crosscut shall be in intake air."

3673

Section llO(i) of the Act, 30 iJ.s.c. § 820(i), provides in pertinent part
as follows:
In assessing civil monetary penalties, the CoI!lmission
shall consider the operator's history of previous violations,
the appropriateness of such penalties, the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
STIPULATIONS
The parties stipulated the following:
1. Eas_tover owns and operates Virginia No. 1 Mine, and both Eastover
and the mine are subject to the jurisdiction of the Act.

2. The Administrative Law Judge has jurisdiction over this proceeding
pursuant to the Act.
3. The subject order, No. 682886, and termination thereto, were properly served by a duly authorized representative of MSHA, Herman Lucas.
4. A copy of Order No. 682886 attached to the petition for adjudication
of a civil penalty is an authentic copy of the original order.
5. The assessment of a civil penalty in this proceeding will not affect
Eastover's ability to continue in business.
6. The pump control box which is the subject of Order No. 682886 was
located in. the last open crosscut of the 2 Right Section, which is a return
airway.
7. The subject pump control box did not have permissible power connection points at the time the subject order was issued.
8. The computer printout reflecting the operator's history of violations is an authentic copy and.may be admitted as a business record of MSHA.
9. The appropriateness of the penalty, if any, to the size of the coal
operator's business should be determined based upon the fact that Virginia
No. 1 Mine has an annual tonnage of 236,248 and Eastover has an annual tonnage of 1,679,965.
SUMMARY OF THE EVIDENCE
During the course of a spot inspection of Eastover's Virginia No. 1
Mine on September 12, 1979, MSHA inspector Herman Lucas issued an order of

367il

_,

withdrawal pursuant to section 104(d)(l) of the Act for a violation of
30 C.F.R. § 75.507. The order in question alleged, in part, as follows:
"Nonpermissible power connection points, Gorman Rupp· water pump control box
was being used in the last open crosscut in return air of 2 Right Section."
As noted in the stipulations in this case, Eastover admits that the pump
control box did not have permissible power connection points and was located
in a return airway at the time the order was iissued. However, Eastover contends that the pump control box was not energized at the time the order was
issued. Hence, it asserts that there was no violation of the regulation and
no civil penalty should be assessed.

't.. •• '

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Inspector Lucas testified that he did not know whether the pump was working or wh~ther the pump control box was energized at the time he issued the
order. He stated that he assumed that the pump control box was energized or
that it had been energized previously. The inspector admitted that Robert
Jessee, the assistant mine foreman and the operator's escort during this
inspection, told him that the pump control box was not energized. Inspector
Lucas did not attempt to make a determination whether the pump control box.
was energized. He stated that, in his opinion, if the equipment had never
been energized, there would be no violation of the regulation.

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Larry Baker, formerly Eastover's general mine foreman on the third shift,
testified that he installed the pump on the shift prior to the one on which
the order was issued. After he set the pump in water, he found that there
was not enough cable to connect the pump to the power center. Since he could
not complete the installation of the pump, he hung the nonpermissible pump
control box on a roof bolt in return air to keep it out of the mud. He
asserted that he was familiar with the regulation in question and would not
have left the pump control box in the return air if it were energized.

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Robert Jessee, Eastover's assistant mine foreman on the day shift, testified that he accompanied the inspector on the day in question. He testified
that he told the inspector that the pump control box was not connected. He
walked to the power center and confirmed the fact that the pump control box
was not energized.
The undisputed evidence on the remaining issues indicate that energized,
nonpermissible power connection points in return air could cause a methane
explosion which could be fatal. At the time of the order, .1 to .2 percent
methane was found at the working places in this section. This mine has a
history of methane liberation. However, if the pump control box was not
energized, it could not cause an explosion and the violation would not be
serious. In May 1979, there was a violation of this regulation, 30 C.F.R.
§ 75.507, at this mine.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of the parties have been considered. Eastover contends that the pump control box was
not energized and, hence, no violation of the regulation occurred. The

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inspector admitted that he did not know whether the pump control box was
energized at the time he issued this order. He assumed that it had been
energized at some prior time in nonpermissible condition but testified that
if the box had not been energized at any time since its placement in return
air, no violation would occur. However, whether or not the pump control box
was ever energized is irrelevant to a determination of whether the regulation
was violated.
~
Eastover should be aware that its defense, that the nonpermissible power
connnection points were not energized, is no defense to a charge of violation
of 30 C.F.R. § 75.507. In Secretary of Labor v. Eastover Mining Company,
Docket Nos. NORT 78-54-P and NORT 78-55-P (November 8, 1978), Judge Steffey
rejected Eastover's defense as follows:
Since section 75.507 prohibits the placing of nonpermissible power connection points in return air outby the last
open crosscut, I think the inspector is correct in stating
that respondent violated section 75.507 by placing the
charger in return air even though the charger was not being
used at the time Order No. 1 MLH was written.
Eastover did not seek review of that decision.
Thereafter, in Secretary of Labor v. Southern Ohio Coal Company, Docket
Nos. VINC 79-109-P, ~al. (October 19, 1979), Judge Koutras rejected the same
defense to the same regulation as follows:
I find and conclude that the petitioner has established
a violation as charged in the citation by a preponderance of
the evidence. Respondent's contention that petitioner must
first establish that the battery charger unit in question was
energized in order to support a violation of section 75.507
is rejected, notwithstanding the inspector's practice of not
issuing citations if it is not energized. I find no such
requirement in the standard and respondent has not persuaded
me otherwise. The question of whether the unit was energized
at the time of the inspection goes to the question of gravity
.and may not serve as an absolute defense to the violation.
The citation is AFFIRMED.
The Federal Mine Safety and Health Review Commission denied the petition for
discretionary review~
In the instant case, Eastover cites no legal precedent in suppport of its
defense. As noted above, the prior decisions of judges have held that the
placement of nonpermissible power connection points in return air is a violation of 30 C.F.R. § 75.507 even if the units are not energized. I conclude
that the evidence of record establishes a violation of 30 c.F.R. § 75.507.
However, I also find that the pump control box in controversy had not been
energized at the time the order issued.

3676

ASSESSMENT OF CIVIL PENALTY
MSHA proposed that a civil penalty in the amount of $2,500 be assessed
for this violation. I have found that there was a prior violation of the same
standard, 30 C.F.R. § 75.507, cited in this case, in this same mine in Hay
1979. Eastover was negligent in that it knew or should have known of this
violation since the area where the violation occurred had been preshifted.
This mine liberates methane and had the control box been energized, an explosion source would have been present. However, I have found that the control
box was not energized at the time the order was issued, nor was it ever
energized at the point at which it was found in return air. The gravity of
the violation was therefore much less than was assumed by MSHA when it proposed a pen~lty of $2,500.
Based upon all of the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that a civil penalty in the amount of
$500 should be imposed for the violation found to have occurred.

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ORDER
WHEREFORE IT IS ORDERED that Eastover pay the sum of $500 within 30 days
of the date of this decision as a civil penalty for the violation of 30 C.F.R.
§ 75.507.

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Laureiison, Judge
Issued:
Distribution by Certified Mail:
Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480, Gateway Building, 3535 Market Street, Philadelphia,
PA 19104

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Karl S. Forester, Esq., Forester & Forester, P.O. Box 935, Harlan, KY
40831

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3677
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 1 B 1980
PENN ALLEGH COAL COMPANY, INC.,
Contestant.

Contest of Citation
Docket No. PENN 80-271-R

v.

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

Citation No. 840677
June 23, 1980
Allegheny No. 3 Mine

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

Civil Penalty Proceeding
Petitioner

Docket No. PENN 80-275
A.C. No. 36-05691-03012

v.

PENN ALLEGH COAL COMPANY, INC.,
Respondent

Allegheny No. 3 Mine

DECISION
Appearances:

Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley, Whyte
and Hardesty, Pittsburgh, Pennsylvania, for Penn Allegh Coal
Company, Inc.;
Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for the Secretary of
Labor.

Before:

Judge Melick

Hearings were held on these cases in Pittsburgh, Pennsylvania, on
November 18, 1980, pursuant to sections 105(d) and llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § .801 et seq., the "Act". The
general issue to be first resolved is whether Penn Allegh Coal Company, Inc.
(Penn Allegh), violated the regulation cited in both cases, to wit: 30 C.F.R.
§ 70.101.
At hearing, Penn Allegh filed a motion for summary decision. My
bench decision granting that motion appears below with only non-substantive
corrections and is affirmed as my final decision at this time.

3678

Under Commission Rule 64(b), 29 C.F.R. § 2700.64(b), a
motion for a summary decision shall be granted only if the
entire record including the pleadings, depositions, answers
to interrogatories, admissions and affidavits shows, (1)
that there is no genuine issue as to any material fact and,
(2) that the moving party is entitled to summary decision
as a matter of law. Based on the agreed stipulation of
facts submitted in this case, I conclude that, indeed, there
is no genuine issue as to any material fact and that the
operator in this case, Penn Allegh Coal Company, Inc., is
entitled as a matter of law to a summary decision vacating
the citations at issue.

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There are two citations before me each charging one violation of the standard at 30 C.F.R. § 70.101. That standard,
which I will refer to as "the reduced dust standard," provides in part as follows:
When the concentration of respirable dust in
the mine atmosphere of any working place contains
more than five percent quartz, the operator shall
continuously maintain the average concentration
of respirable dust in the mine atmosphere to which
each miner in such working place is exposed at or
below a concentration of respirable dust, expressed
in milligrams per cubic meter of air, computed by
dividing the percent of quartz into the number ten:
[Emphasis added.]
I have emphasized the language "working place" as
utilized in the standard because that language is critical
to the decision in this case and it is the language upon
which this case is to be decided. The term "working place"
is defined in the regulations at 30 C.F.R § 70.2(e) as the
area of a coal mine inby the last open crosscut. The term
"working place" as used in the standard cited in these cases,
that is, the reduced dust standard, is clearly governed by
this definition. No one disputes this. I conclude, therefore, that the operator is required to maintain the reduced
respirable dust levels required by section 70.101 only in
that same specific area located "inby the last open crosscut" i.e., the same "working place" where the respirable
dust has been found to contain more than 5 percent quartz.
The stipulated and agreed facts of this case show that
the samples taken to establish that the concentration of
respirable dust contaiued more than 5 percent quartz were
taken between January 2 and January 9, 1980, in the north
main section and specifically the area designated on the
operator's mine map which is in evidence as Exhibit No. 1
as the working places in the area adjacent to the letter

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On the other hand, the samples on which the violations
cited in the two cases before me today were based were
actually taken in the 2 right section which has been identified on the operator's mine map (Exh. No. 1) as the area
designated with an orange color with the date February 1980,
adjacent to it, the area designated by a green color with
the date March 1980, adjacent to it, the area designated by
the color red with the date April 1980, appearing adjacent
to it, the color brown with the date May 1980, appearing
adjacent to it, and the color yellow with the date June
1980, appearing adjacent to it.
According to the stipulation, the "working places"
where the quartz concentration was determined and the "working places" where the alleged violations were found were no
closer than 2,000 feet apart. Under the circumstances, it
is clear beyond all doubt that the "working places" at which
the respirable dust having more than 5 percent quartz content
was found and relied upon in these cases were not the same
"working places" at which the violations were cited. There
has, therefore, been no violation of the cited standard and,
accordingly, the citations before me must be vacated.
ORDER
Citation Nos. 9901143 and 840677 are hereby VACATED.
proceeding, Docket No. PENN 80-275, is DISMISSED.

The civil penalty

Distribution:
Hardesty,
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th Street,
NW., Washington, DC 20005 (Certified Mail)

3680

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

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Applications for Review

CLIMAX MOL~BDENUM COMPANY,
Applicant
v.

Docket No. DENV 78-553-M

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Citation No. 331733
July 27, 1978

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
CLIMAX MOLYBDENUM WORKERS,
LOCAL NO. 2-24410, OIL, CHEMICAL
AND ATOMIC WORKERS INTERNATIONAL
UNION,
Respondent

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Docket No. DENV 78-554-M

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Citation No. 331744
July 27, 1978

,

Docket No. DENV 78-555-M
Citation No. 331747
July 28, 1978
Climax Mine

'
Civil Penalty Proceeding

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

Docket No. WEST 79-340-M
A/O No. 05-00354-05025

Vo

Climax Mine

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CLIMAX MOLYBDENUM COMPANY,
Respondent
DECISION
Appearances:

Before:

Charles w. Newcom, Esq., Sherman and Howard, Denver, Colorado,
for Climax Molybdenum Company;
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for the Mine Safety and Health
Administration;
David Jones, President, and James Kasie, Law Clerk, Climax
Molybdenum Workers, Local No. 2-24410, Oil, Chemical and Atomic
Workers International Union, Leadville, Colorado, for the Union.

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Procedural Background

On August 28, 1978, Climax Molybdenum Company (Climax) filed applications for review in Docket Nos. DENV 78-553-M, DENV 78-554-M and DENV
78-555-M pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq. (1978) (1977 Mine Act). Answers were
filed by the Mine Safety and Health Administration (MSHA) on September 7,
1978. On October 31, 1978, the Climax Molybdenum Workers, Local No. 2-24410,
Oil, Chemical and Atomic Workers International Union (Union) elected party
status.
On September 12, 1978, a notice of hearing was issued scheduling the
application for review proceedings for hearing on November 28, 1978, in
Denver, Colorado. On November 8, 1978, Climax filed motions for continuance
and commencement of discovery, and on November 9, 1978, filed a motion for a
prehearing conference for the determination of issues. The three motions
were granted. The requested prehearing conference was held on December 1,
1978, in Arlington, Virginia. Thereafter, on January 5, 1979, Climax filed
amended applications for review.

On May 5, 1979, a notice of hearing was issued scheduling the application for review proceedings for hearing on November 6, 1979, in Denver,
Colorado. On September 26, 1979, Climax and MSHA filed a joint motion for
continuance. The motion was granted on October 3, 1979, and the cases were
continued to January 15, 1980, in Denver, Colorado. On January 2, 1980,
Climax filed a motion for continuance. The motion was granted on January 7,
1980, and the hearing was continued to March 11, 1980, in Silverthorn and
Breckenridge, Colorado.
Extensive discovery was authorized and various telephone conferences
were held at various stages of the proceedings.
The above-captioned civil penalty proceeding was filed by MSHA on
September 24, 1979, pursuant to section llO(a) of the 1977 Mine Act alleging
12 violations of various provisions of the Code of Federal Regulations. The
three citations at issue in the above-captioned application for review proceedings are also at issue in the civil penalty case. Climax filed its
answer on October 15, 1979, and on October 24, 1979, the case was assigned
to Administrative Law Judge John J. Morris of the Commission's Office of
Administrative Law Judges located in Denver, Colorado. On January 18, 1980,
MSHA filed a motion to withdraw the proposal for a. penalty as relates to
Citation Nos. 333241, 333339 and 333340. MSHA's motion was granted by Judge
Morris on February 25, 1980.
Thereafter, Climax moved to transfer the civil penalty case to the
undersig?ed and such transfer occurred on March 4, 1980. On March 7, 1980,
a notice of hearing was issued consolidating the case with the abovecaptioned application for review proceedings and scheduling it for hearing
on March 11, 1980, in Silverthorn Colorado.

3682

The hearing was held on March 11, 1980, in Silverthorn, Colorado, and on
March 12, 1980, in Breckenridge, Colorado. Representatives of Climax and
MSHA appeared and participated on both days. A representative of the Union
appeared on March 11, 1980, and limited his participation to the delivery
of a brief opening statement.
At the beginning of the hearing, MSHA filed a written motion in Docket
No. WEST 79-340-M to withdraw the proposal for a penalty as relates to all
remaining citations except the three at issue in the application for review
proceedings. An order granting the motion is contained in this decision.

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At th~ conclusion of the hearing, an agreement was reached addressing the
posthearing filing of definitions contained in certain treatises. On April 28,
1980, Climax filed copies of definitions contained in treatises entitled, IEEE
Standard Dictionary of Electrical and Electronic Terms, A Dictionary of Miniiig,
Mineral, and Related Terms [U.S. Department of Interior], and the National
Electrical Code. These exhibits were marked for identification as Exhibits
0-9, 0-10, and 0-11, respectively, and received in evid~nce on June 13, 1980.

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Climax and MSHA filed posthearing briefs on May 16, 1980, and June 13,
1980, respectively. Climax filed a reply brief on July 1, 1980. The Union
did not file a posthearing brief.
The transcript of the hearing was received by the undersigned Administrative Law Judge on June 4, 1980. Thereafter, it was discovered that the court
reporting company had failed to forward with the transcript a total of
26 exhibits received in evidence during the hearing, i.e., Joint Exhibits 1-A
through 1-H, 2-A through 2-I, 3-A through 3-H, and Exhibit 0-4. By a letter
dated August 14, 1980, the three parties were apprised of this and were
requested to submit substitute copies of the missing exhibits in conjunction
with an appropriate stipulation. Additionally, the representatives of Climax
and MSHA were directed to obtain the signature of the Union's representative
on the stipulation filed at the hearing on March 11, 1980. Climax filed
copies of Joint Exhibits 1-A through 1-H, 2-A through 2-I, and 3-A through
3-H, on September 8, 1980. The attached cover letter states that the parties
"are in agreement that copies of these exhibits be placed in the record as
substitutes for the missing joint exhibits. They bear identical numbers to
the original exhibits. We are also in agreement that the cable which you have
in your possession be substituted for missing Exhibit 0-4."
On September 9, 1980, MSHA filed a statement agreeing to the substitution.
To date, the Union has not filed a written statement agreeing to the substitution. The Union did not introduce any exhibits in evidence during the hearing. However, copies of Climax's September 8, 1980, cover letter and MSHA's
September 9, 1980, filing were served on the Union, and the Union has not
filed a statement in opposition to the substitution. Accordingly, the substitution will be made and the exhibits will be considered in deciding these
cases.
Additionally, on September 15, 1980, an agreement to the March 11, 1980,
Stipulation bearing the Union representative's signature was filed.

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II.

Violations Charged in Docket No. WEST 79-340-M
Citation No.
331733
331744
331747
333300
333331
333241
333242
333246
333335
333336
333339
333340

III.

Date
July 27, 1978
July 27, 1978
July 28, 1978
August 7, 1978
November 27, 1978
December 27, 1978
December 27, 1978
December 27, 1978
December 27, 1978
December 27, 1978
December 27, 1978
December 27, 1978

30 C.F.R.
Standard
57.12-82
57.12-82
57.12-10
57.12-28
57.12-1
57.12-1
57.12-25
57.12-13
57.12-13
57.12-13
57.12-1
57.12-1

Witnesses and Exhibits
A.

Witnesses

MSHA called as its witnesses Lawrence P. Filek, an electrical engineer
at MSHA's Denver Technical Support Center; William S. Vilcheck, an electrical
engineer at MSHA's Pittsburgh Technical Support Center; and James Atwood, a
Federal mine inspector.
Climax called as its witnesses Edwin D. Matheson, an electrician in the
Starke locomotive shop of the Climax Mine and Chairman of the International
Brotherhood of Electrical Workers, Local No. 1823; Harden H. Williams, an
electrical foreman at the Climax Mine; George E. Pupera, electrical superintendent at the Climax Mine; and Dr. Fred Leffler, Associate Professor of
Electrical Engineering at the Colorado School of Mines.
B.

Exhibits

1.

The following joint exhibits were introduced in evidence:

Joint Exhibit 1-A is a copy of Citation No. 331733, July 27, 1978,
30 C.F.R. § 57.12-82.
Joint Exhibits 1-B through 1-E are copies of various subsequent
action forms pertaining to Joint Exhibit 1-A granting various extensions of
the time period for abatement.
Joint Exhibit 1-F is a copy of the inspector's statement pertaining
to Joint Exhibit 1-A.
Joint Exhibit 1-G is a copy of the termination of Joint Exhibit 1-A.

3684

Joint Exhibit 1-H is a copy of Inspector Atwood's handwritten notes
pertaining to Joint Exhibit 1-A.
Joint Exhibit 2-A is a copy of Citation No. 331744, July 27, 1978,
30 c.F.R. § 57.12-82.
Joint Exhibits 2-B, 2-D, 2-E, and 2-F are copies of various subsequent action forms pertaining to Joint Exhibit 2-A granting various extensions
of the time period for abatement.
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Joint Exhibit 2-C is a copy of a modification of Joint Exhibit 2-B.

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Joint Exhibit 2-G is a copy of the inspector's statement pertaining
2-A.
Exhibit
to Joint
Joint Exhibit 2-H is a copy of the termination of Joint Exhibit 2-A.
Joint Exhibit 2-I is a copy of Inspector Atwood's handwritten notes
pertaining to Joint Exhibit 2-A.

L:

Joint Exhibit 3-A is a copy of Citation No. 331747, July 28, 1978,
30 C.F.R. § 57 .12-10.

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Joint Exhibits 3-B through 3-E are copies of various subsequent
action forms pertaining to Joint Exhibit 3-A granting various extensions of
the time period for abatement.

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Joint Exhibit 3-F is a copy of the inspector's statement pertaining
to Joint Exhibit 3-A.

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Joint Exhibit 3-G is a copy of the termination of Joint Exhibit 3-A.
Joint Exhibit 3-H is a copy of Inspector Atwood's handwritten notes
pertaining to Joint Exhibit 3-A.
Joint Exhibit 4 is a booklet published by Climax containing general
information about the Climax Mine.
Joint Exhibit 5 is a booklet published by Climax entitled "This is
Climax Molybdenum."
Joint Exhibit 6 lists the type of electical cables at issue in these
proceedings.
Joint Exhibits 7 through 14 are photographs.
Joint Exhibit 15 is a copy of a memorandum dated January 22, 1975,
from William W. Carlson, Mining Engineer, Metal and Nonmetal Mine Health and
Safety, Duluth Subdistrict, Marquette, Michigan, to A. z. Dimitroff, Chief,
.Denver Technical ·support Center, Denver, Colorado, addressing the sub]ect of

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electrocution hazard potential when powerlines are installed in contact with ·
water and air lines.
Joint Exhibit 16 is a copy of a memorandum dated January 30, 1975,
from the Electrical Engineer, Industrial Safety Group, to the Chief of the
Denver Technical Support Center addressing powerlines in contact with metal
pipelines.
Joint Exhibit 17 is a copy of a memorandum dated January 31, 1975,
from the Chief of the Denver Technical Support Center, to William W. Carlson
replying to Joint Exhibit 15.
Joint Exhibit 18 is a copy of the Nelson/Shepich Memorandum of
_ February 21, 1975.
Joint Exhibit 19 is a copy of a memorandum dated August 19, 1975,
from the Chief of the Mine Electrical Systems Group, to the Assistant Administrator for Metal and Nonmetal Mine Health and Safety containing an opinion
on the interpretation of mandatory safety standard 30 C.F.R. § 57.12-82.
Joint Exhibit 20 is a copy of a memorandum dated February 10, 1978,
from the Electrical Engineer, Mine Electrical Systems Branch, to Allen D.
Stoutenger, Mining Engineer, Rocky Mountain Subdistrict Office, Lakewood,
Colorado, addressing mandatory safety standard 30 C.F.R. § 57.12-82.
2.

MSHA introduced the following exhibits in evidence:
M-1 through M-6 are photographs.
M-7 is a copy of an extract from the National Electrical Code.
M-8 is a copy of an extract from the American Electrician's Handbook.

3.

Climax introduced the following exhibits in evidence:

0-1 is a booklet published by Climax entitled "Technical
Information."
0-2 is the affidavit of Otto W. Drager.
0-3 is a copy of an extract from the National Electrical Code.
0-4 is a segment of electrical cable.
0-5 is a copy of an extract from the Anixter Brothers, Inc., supply
catalog containing detailed specifications for the cables listed in Joint
Exhibit 6.
0-6 is a copy of Dr. Leffler's resume.

3686

0-7 contains copies of pages from the 1978 Annual Book of ASTM
Standards.
0-8 is a copy of an extract from the American Electrician's
j

Handbook.

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0-9 contains copies of pages from the IEEE Standard Dictionary of
Electrical and Electronics Terms.
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0-10 contains copies of pages from A Dictionary of Mining, Mineral,
and Related Terms.

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0=11 is a copy of an extract from the 1978 National Electrical Code.
IV.

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Issues

A. The following issues are presented in the above-captioned application
for review proceedings:
1. Whether the term "powerline," as used in 30 C.F.R. § 57.12-82,
encompasses not only the conductor, but also the other constituent parts of
the cable used as a powerline, such as the insulation, filler and jacket.

2. If the term "powerline," as used in 30 C.F.R. § 57.12-82,
encompasses the conductor, insulation, filler and jacket, then whether the
regulation requires the use of additional insulation where the powerline
achieves contact with waterlines, telephone lines, and air lines.
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3. If the regulation requires the use of additional insulation
where the powerline achieves contact with waterlines, telephone lines, and air
lines, then what type of additional insulation is needed to comply with the
standard?

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4. Whether mandatory safety standard 30 C.F.R. § 57.12-10 is violated when the outer jacket of a telephone line achieves contact with the
outer jacket of a cable used as a powerline.

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B. Two basic issues are involved in the above-captioned civil penalty
proceeding: (1) did a violation of the Code of Federal Regulations occur,
and (2) what amount should be assessed as a penalty if a violation is found
to have occurred? In determining the amount of civil penalty that should
be assessed for a violation, the law requires that six factors be considered:
(1) history of previous violations; (2) appropriateness of the penalty to the
size of the operator's business; (3) whether the operator was negligent; (4)
effect of the penalty on the operator's ability to continue in business; (5)
gravity of the violation; and (6) the operator's good faith in attempting
rapid abatement of the violation.

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V.

Opinion and Findings of Fact
A.

Stipulations

1. Climax Molybdenum Company and its Climax Mine are subject to
the provisions of the Federal Mine Safety and Health Act of 1977.
2. The Administrative Law Judge has jurisdiction over the subject
matter of, and the parties to, these proceedings.
3. At all times relevant to the above-captioned proceedings, MSHA
inspector James L. Atwood was an authorized representative of the Secretary
of Labor.
4. Citation No. 331733, Docket No. DENV 78-553-M was issued on
July 27, 1978, by inspector James L. Atwood. A copy of that citation,
together with subsequent action notices, Inspector Atwood's handwritten
notes, and the Inspector's Statement, Form MSHA 7000-4, are attached hereto
and incorporated herein by reference as Joint Exhibit 1.
5. On July 27, 1978, Inspector Atwood issued Citation No. 331744,
Docket No. DENV 78-554-M. A copy of that citation, together with subsequent
action notices, Inspector Atwood's handwritten notes, and the Inspector's
Statement, Form 7000-4, are attached hereto and incorporated herein by
reference as Joint Exhibit 2.
6. Citation Nos. 331733 and 331744 both involve alleged violations
of regulatory standard 30 C.F.R. § 57.12-82.
7. Citation No. 331747, Docket No. DENV 78-555-M was issued by
Inspector Atwood on July 28, 1978. A copy of that citation, together with
subsequent action notices, Inspector Atwood's handwritten notes, and the
Inspector's Statement, Form MSHA 7000-4, are attached hereto and incorporated
herein by reference as Joint Exhibit 3.
§

8.
57.12-10.

Citation No. 331747 involves an alleged violation of 30 C.F.R.

9. The central question in the above-captioned actions is what
constitutes suitable insulation or separation of powerlines from telephone
lines, waterlines, or air lines.
10. Climax and MSHA agree that Inspector Atwood observed various
places on the 600 Level and the ·storke Level at the Climax Mine in which the
outer jacket of an insulated and jacketed power cable was touching an air
line, waterline or telephone line. The power conductors in these cables were
carrying voltages ranging from 110 volts to 440 volts. The cables were in
satisfactory condition.
11. MSHA and Climax are in agreement that each of the joint
exhibits attached hereto should be admitted into evidence.

3683

12. The Climax Mine is located at the peak of Fremont Pass in
Lake County, Colorado, approximately 13 miles northeast of Leadville, Colorado,
at an altitude of 11,318 feet. It is one of the world's major producers of
molybdenum and the second largest underground mine in the world.

:,...
.

13. The Climax Mine operates 24 hours per day employing a total of
approximately 3,000 employees, roughly half of whom work underground. The
mine has open pit operations which employ approximately 400 workers. The
mine also has crushing and milling facilities employing approximately
400 employees. The remaining employees perform various administrative
functions on the surface.
14. The mine presently has two underground production levels. One
level (referred to as the Starke Level) has been in production since 1952.
The second underground level (the 600 Level) has been in production since
1972. Development work has begun on a third underground level which will be
known as the 900 Level.
15.
16.
ore per day.

Open pit production began in 1974.
Total production at the mine is approximately 50,000 tons of

17. Molybdenum ore is mined underground by the block caving method.
A cave is created above the production areas by drilling and blasting. After
the rock is fractured by blasting, creating the cave, the force of gravity
causes the rock to continue to break. The rock then falls from the cave
into raises (fingers) that run at a 45-degree angle into a slusher drift.
Each slusher drift (also called a dash) has six finger raises. The fractured
rock falls through the raise into the slusher drift. Each slusher drift has
a 150-horsepower electrical motor which powers a dipper that is pulled back
and forth in the slusher dash. The dipper pulls the rock towards a draw hole
which is 3.9 feet wide and 8 feet long. The rock falls through the draw hole
into ore trains that are sitting on tracks in a haulage drift whi.ch is located
approximately 10 feet below the floor of the slusher drift. The haulage drift
is perpendicular to the slusher drift. The block caving method is illustrated
in Joint Exhibit 4, especially the drawings on pages 8-10. Joint Exhibit 5,
"This is Climax Molybdenum," also describes the mine's operations.
18. This action involves only power cables in the drifts of the mine
which have track for haulage of ore, or other materials, by rail. The Climax
Mine has approximately 24 miles of haulage drifts. These drifts contain an
estimated 367,000 feet of cable of the types in issue here (see paragraph 21).
There are approximately 24 miles of air lines and 24 miles of waterlines in
these drifts.

1

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19. As a general rule, air lines and waterlines are on one side of
the drift and power cables are on the other side of the drift.

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20. All of the power cables involved in this action carry voltages
having low potential (low potential is defined in 30 C.F.R. § 57.2 as
650 volts or less)~ In fact, none of these cables carry in excess of
440 volts.
21.

The types of cables involved in this action are listed in

Exhibit 6.
22. The power cables in issue in this action never carry voltages
greater than the manufacturer's insulation rating for that cable.
23. These power cables may from time to time be on the same side
o.f the drift as an air line or a waterline for a variety of reasons. These
reasons include the following:
A. It is sometimes necessary to move air or waterlines or
power cables from one side of the drift to the other in order to transmit air,
water, or electricity to a particular location.
B. At intersections of drifts, air lines, waterlines, or power
cables will frequently cross.
C. The distribution of power within production areas leads to
numerous crossovers which are unavoidable. Power for slusher operations is
distributed via cable referenced in paragraph 21 above. The main distribution
cable is the 500 M.C.M. cable. 2/0 feeder cables are spliced into that
500 M.C.M cable to run power into a switch vault. Switch vaults are 70 feet
apart in production areas on alternate sides of the haulage drift. (There are
approximately 300 switch vaults in the mine. Approximately 150 are in production areas. At any given time, approximately 50 more switch vaults are active
in supplying power to fans or other electrical equipment.) From the switch
vault power is distributed to the motors in two slusher dashes. Slusher motors
are also on alternating sides of the haulage drift, thus requiring at least one
additional crossover of power cable and also frequently requiring that the
power cable run parallel to the air and waterlines for several feet. These
types of crossovers are illustrated in the photographs attached hereto as
Joint Exhibits 7 through 14. Exhibit 7 shows a place where two drifts "Y"
together. Exhibits 8, 9, and 10 illustrate the normal configuration of drifts
with power cable on one side and pipelines on the other side of the drift.
These exhibits also show power cable crossovers. Exhibit 11 is a closeup of
cable crossing a drift running from a switch vault, across the back and up
into a slusher dash. Exhibit 12 shows a switch vault on the same side of a
drift as the power cable bundle, with the feeder cable out to the slusher
dashes. Exhibit 13 shows another switch vault which provides power for
two slusher machines; that switch vault is on the pipeline side of the
drift. Exhibit 14 shows a small switch vault which supplies power to a
nonproduction area.
24. The dielectric strength of air or a substance refers to the
ability of air or that substance to offer a high resistance to the passage
of electricity through it.

3690

25.
trical power.
poweline.

A powerline is a conducting material capable of carrying elecA communication line (because of the low current flow) is not a
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26. The court should be aware of three prior cases involving
30 C.F.R. § 57.12-82.

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27. The first case is Docket No. DENV 79-92-PM, Secretary of Labor
v. Kerr-McGee Nuclear Corporation. The facts in that case inv9lved a situation in which the outer jacket of a power cable assembly was in contact with
a metal pipeline. That power cable assembly consisted of conductors, each of
which were surrounded by insulation having a manufacturer's rating equal to
or greate~ than the voltage applied to the power conductors. The insulated
power conductors were then surrounded by an outer jacket which was in satisfactory condition. The only thing that came in contact with the metal pipeline was the outer jacket. By motion filed May 21, 1979, MSHA moved to vacate
the citation issued on those facts because there was "insufficient evidence
available to support the alleged violation."
28.

In a case invoLving similar facts, Docket No. WEST 79-252-M,

MSHA v. Sunshine Mining Company, by motion served November 7, 1979, MSHA also
moved to vacate a citation issued under 30 C.F.R. § 57.12-82 because "there
[was] insufficient evidence to sustain the allegations contained in the citation." The facts in the Sunshine Mining case were essentially the same as
those in the Kerr-McGee case.
29. In a decision dated November 29, 1979, Secretary of Labor v.
Ozark Mahoning Co., Docket No. VINC 79-138-PM, ·Judge Stewart found a violation
of 30 C.F.R. § 57.12-82. The similarity between the facts of that case and
the facts of this case are uncertain since he indicates in discussing one of
the citations that the "outer jacket of the cable was comprised of neoprene
and rubber insulation" and on the other citation that the powerline "was protected only by factory insulation." Here each of the cables are insulated
and covered with a separate heavy-duty outer jacket approved for use in mines
by the Bureau of Mines.

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30. Attached as Joint Exhibits 15 through 20 are various letters
and interpretive memoranda issued by MSHA regarding 30 C.F.R. § 57.12-82.
These constitute all of the published and unpublished interpretive letters or
memoranda regarding that standard.
31. The primary purpose of this litigation is for Climax and MSHA
to resolve a conflict between them regarding interpretation of the regulatory
provisions· in issue in this action. Climax and MSHA thus agree that in the
event the court should determine that a violation(s) occurred, the appropriate civH penalty would be the amount the citation( s) was assessed for by
the Office of Assessments. These amounts are as follows: Citation No.
331733--$72; Citation No. 331744--$78; and Citation No. 331747--$66.
32.

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Climax is a large operator within the meaning of the 1977 Mine

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33. Climax demonstrated good faith in attempting rapid abatement of
the practices described in Citation Nos. 331733, 331744 and 331747.
B.

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Opinion and Findings of Fact
1.

Occurrence of Violations

The principal question presented in the above-captioned cases is what
constitutes suitable insulation where powerlines achieve contact with telephone lines, waterlines, or air lines. The basic facts are relatively
uncomplicated. The parties, however, demonstrate considerable disagreement
both as to the legal significance of the facts and as to the proper interpretation of the cited mandatory safety standards.
Citation Nos. 331733, 331744 and 331747 were issued at the Climax Mine
by Federal mine inspector James L. Atwood during the course of the first
inspection of that mine conducted pursuant to the provisions of the 1977
Mine Act (Tr. 203).
Citation Nos. 331733 and ·331734 were issued on July 27, 1978, addressing identical practices detected by Inspector Atwood on the 600 Level and
Storke Level, respectively. These citations charge Climax with violations
of mandatory safety standard 30 C.F.R. § 57.12-82 in that energized powerlines of various voltages were in contact with pipelines in various places. 1/
The term "pipelines," as used in the citations, refers to both air lines andwaterlines (Tr. 213), and the term "powerlines" refers to the outer jacket
on insulated and jacketed cables (Tr. 223).
Citation No. 331747 was issued on July 28, 1978, addressing a practice
detected by Inspector Atwood on the 600 Level. The citation charges Climax
with a violation of mandatory safety standard 30 C.F.R. § 57.12-10 in that
several telephone lines were observed hanging with and touching energized
powerlines. The citation further alleges that the practice existed in all
areas of the 600 Level. 2/ The inspector testified that he checked a total
of 10 telephones and that in each instance the telephone line "came out of
the phone and went right up and into a bundle of powerlines, and went down
1/ Citation No. 331733, July 27, 1978, 30 C.F.R. § 57.12-82 states the
following: "Powerlines and pipelines were in contact on the 600 level in
various places. These were energized powerlines of various voltages from
110 V up." Citation No. 331744, July 27, 1978, 30 C.F.R. § 57.12-82 states
the following: "Powerlines and pipelines were in contact on the Storke
level in various places. These were energized powerlines of various
voltages from llOV on up."
2/ Citation No. 331747, July 28, 1978, 30 C.F.R. § 57.12-10 states the
following: "Several phone lines on the 600 level were observed hanging
with and touching energized powerlines. This condition exists in all of
the areas of the 600 level. A total of 10 phones were checked and the
lines were all in contact with the powerlines."

3692

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the drift" (Tr. 218). He further testified that the telephone lines in
question had jackets (Tr. 257), and that the citation addresses the outer
jackets of telephone lines touching the outer jackets of power cables (Tr.
223).
At various times between August 25, 1978, and February 2, 1979, Federal
mine inspectors James D. Enderby and David Park issued subsequent action
notices extending the time periods for abatement. The citations were terminated in April of 1979 by Federal mine inspector Elmer E. Nichols.
The parties stipulated that molybdenum ore is mined underground at the
Climax Mine by the block caving method. A cave is created above the production areas by drilling and blasting. After the rock is fractured by blasting,
creating the cave, the force of gravity causes the rock to continue to break.
The rock then falls from the cave into raises (fingers) that run at a
45-degree angle into a slusher drift. Each slusher drift (also called a
dash) has six finger raises. The fractured rock falls through the raise into
the slusher drift. Each slusher drift has a 150-horsepower electrical motor
which powers a dipper that is pulled back and forth in the slusher dash. The
dipper pulls the rock towards a draw hole which is 3.9 feet wide and 8 feet·
long. The rock falls through the draw hole into ore trains that are sitting
on tracks in a haulage drift which is located approximately 10 feet below
the floor of the slusher drift. The haulage drift is perpendicular to the
slusher drift.
The parties further stipulated that the instant cases involve only power
cables in drifts of the mine which have track for the haulage of ore, or other
materials, by rail. The Climax Mine has appoximately 24 miles of haulage
drifts, and these drifts contain an estimated 367,000 feet of cable of the
types in issue here. The types of cables involved in these proceedings are
listed on Joint Exhibit 6. There are approximately 24 miles of air lines and
24 miles of waterlines in these drifts.

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All of the power cables involved in the instant cases carry voltages
having low potential, as that term is defined by 30 C.F.R. § 57.2, i.e.,
650 volts or less. None of these cables carry in excess of 440 volts-:Additionally, the cables never carry voltages greater than the
manufacturer's insulation rating.
As a general rule, air lines and waterlines are on one side of the drift
and power cables are on the other side of the drift. However, the power
cables may, from time to time, be on the same side of the drift as an air line
or a waterline for a variety of reasons. These reasons include the following:
First, it is sometimes necessary to move air or waterlines or power cables
from one side of the drift to the .>ther in order to transmit air, water, or
electricity to a particula~ locatjon. Second, at intersections of drifts,
air lines, waterlines, or power c:bles will frequently_cross. Third, the
distribution of power within produ~tion areas leads to numerous crossovers
which are unavoidable. Power fo~ slusher operations is distributed via cable
referenced in Joint Exhibit 6. The main distribution cable is the 500 M.C.M.

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cable. 2/0 feeder cables are spliced into that 500 M.C.M. cable to run power
into a switch vault. Switch vaults are 70 feet apart in production areas on
alternate sides of the haulage drift. There are approximately 300 switch
vaults in the mine. Approximately 150 are in production areas. At any given
time, approximately 50 more switch vaults are active in supplying power to
fans or other electrical equipment. Power is distributed from the switch
vault to the motors in two slusher dashes. Slusher motors are also on
alternating sides of the haulage drift, thus requiring at least one additional crossover of power cable and also frequently requiring that the power
cable run parallel to the air and waterlines for several feet.
In addition to the foregoing, the parties stipulat.ed that when the
respective citations were issued, Inspector Atwood observed various places
011 the 600 Level and the Starke Level at the Climax Mine in which the outer
jacket of an insulated and jacketed power cable was touching an air line,
waterline or telephone line, and that the· power conductors in these cables
were carrying voltages ranging from 110 volts to 440 volts. Furthermore,
the parties stipulated that the cables were in satisfactory condition.
Mandatory safety standard 30 C.F.R. § 57.12-82 provides as follows:
"Powerlines shall be well separated or insulated from waterlines, telephone
lines, and. air lines." The regulation applies "only to the underground
operations of underground mines." 30 C.F.R. § 57.1. The principal area of
disagreement between the parties centers around the appropriate definition
of the term "powerlines" and the determination as to what constitutes suitable insulation at the points where powerlines achieve contact with waterlines, air lines, and telephone lines.
Climax argues that the term "powerline" should be defined as a "conducting material capable of carrying electrical power;".!..·~·, that the definition
of powerline should be limited to the copper conductors contained within a
power cable, and exclude the insulation, jacket and filler. Climax further
argues that when this definition is applied, one can then consult both the
American Society for Testing and Materials (ASTM) standards for the manufacture
of power cable and accepted principles of electrical engineering to determine
whether the insulation is sufficient. In Climax's view, unless such definition is adopted, no objective basis exists for determining what constitutes
suitable insulation. Additionally, Climax maintains that its interpretation
is consistent with the electrical standards in 30 C.F.R. § 57.12. (Climax's
Posthearing Brief, pp. 8-15, 20).
MSHA categorically rejects Climax's contentions and argues that "powerline" includes not only the metal that actually conducts the flow of power
from one point to another, but also the component parts that make up the line
from one point to another, i.e., the insulation, jacket and filler. (MSHA's
Posthearing Brief, p. 3). For the reasons set forth below, I conclude that
the term "powerline," as used in 30 C.F.R. § 57.12-82, encompasses not Qnly

3694

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the conductor, but also all constituent parts of the cable that make up the
line from one point to another, ~·.B.•, the insulation, jacket and filler. 11

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Neither Climax's nor MSHA's witnesses were able to point to a learned
treatise. in the field of electrical matters containing a definition of the
term "powerline," and none of the exhibits suggest an express definition for
the term. Accordingly, on the basis of the record developed in these cases,
it must be concluded that the term "powerline," as used in the general electrical field, is not susceptible to a precise definition of the type that
would be of meaningful assistance in deciding the issues presented in the
instant cases. It is therefore necessary to consider all electrical standards and definitions contained in Part 57 of Title 30 of the Code of Federal
Regulations .;in order to determine the meaning of the term "powerline" as
used in the contf.xt of standards designed to secure a safe work place for
miners working in the underground areas of metal and nonmetallic mines.

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A full review of the electrical standards and definitions set forth in
Part 57 of Title 30 of the Code of Federal Regulations convinces me that
Climax's definition of· the term "powerline" is inaccurate when viewed in the
context of mine safety as relates to electrical applications located in the
underground areas of underground metal and nonmetallic mines. The electrical
terms appearing most frequently in 30 C.F.R. § 57.12, insofar as material to
the instant cases, are "cables," trailing cables," "power cables," "conductors,"
"power conductors," "bare power conductors," "electrical conductors," "power
wires," "signal wire," "bare signal wires , " "trolley feeder wires , " "trolley
wires," "powerlines" and "bare powerlines ." Of· these, only the term "conductor" is expressly defined within Part 57 of Title 30. Climax's proffered
definition of "powerline" is identical in all material respects to the definition of "conductor" set forth at 30 C.F.R. § 57.2, which provides as follows:
"'conductor' means a material, usually in the form of a wire, cable, or bus
bar, capable of carrying an electric current." It can therefore be deduced
that if the drafters of the subject regulation had intended it to require
only "conducting material capable of carrying electrical power" to be "well
separated or insulated from waterlines, telephone lines, and air lines,"
then they would have used the term "conductors" in lieu of the term "powerlines." Substantial guidance is also provided by a comparison of mandatory
safety standards 30 C.F.R. § 57.12-66 and 30 C.F.R. § 57.12-82. The former

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Climax maintains that MSHA stipulated to this definition of a powerline
and that MSHA should not be permitted to depart from the definition as
stipulated (Climax's Posthearing Brief, pp 14-15). The stipulation in
question states as follows: "A powerline is a conducting material capable
of carrying electrical power. A communication line (because of the low
current flow) is not a powerline." Having considered both the comments of
counsel for MSHA (Tr~ 117-118, 122-123) and the precise wording of the
stipulation, I conclude that the sole purpose of this stipulation was to
set forth a distinction as to the different functions performed by powerlines and communication lines. Accordingly, the conclusion reached in this
decision as relates to the definition of "powerline" does not do violence
to the stipulation.
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regulation, applicable "only to the surface operations of underground mines,"
30 C.F.R. § 57 .1, makes express reference to "bare powerlines" (emphasis
added). The latter regulation, applicable only to the underground operations of underground mines, refers to "powerlines" and does not contain the
modifying adjective "bare." In view of the foregoing, it is apparent that
the drafters of Part 57 of Title 30 intended that the term "powerline ," in
the context of 30 C.F.R. § 57.12-82, envisioned a line that already included
a conductor or conductors with the insulation and jacket as manufactured,
such as exists in Exhibit 0-4. Accordingly, I conclude that the term "powerline ,"as used in 30 C.F.R. § 57.12-82, encompasses not only the metal that
actually conducts the flow of electricity from one point to another, but also
all component parts that make up the line from one point to another. The
electrical cables at issue in Citation Nos. 331733 and 331744 were "powerlines" within the meaning of the cited regulation. Furthermore, the terms
"trolley wires" and "bare power conductor," as treated in 30 c.F.R. § 57.12-80,
bolster the proposition that the term "powerlines" in the context of 30 C.F.R.
§ 57.12-82 envisioned something more than bare power conductors.
The second a~ea of controversy concerns the determination as to what
constitutes insulation in compliance with the regulation. Both MSHA and
Climax agree that the purpose of 30 C.F.R. § 57.12-82 is to prevent a waterline, telephone line or air line from becoming energized (Climax's Posthearing Brief, p. 19; MSHA's Posthearing·Brief, p. 4). Climax argues that
compliante with the standard is achieved if the manufacturer applied insulation on the powerline is sufficient to achieve the standard's objective.
Accordingly, Climax argues that the cables at issue (Joint Exh. 6) provide
the requisite protection by their design (Climax's Posthearing Brief).
MSHA argues that, in the context of mining, avoidable hazards and risks
are required to be eliminated to the greatest extent possible, and that this
objective is attained when the powerlines are well separated from the waterlines, telephone lines and air lines, or when insulation, in addition to that
which is placed on the powerline by the manufacturer, is used at the points
of contact. In MSHA's view, Climax's proffered interpretation is both shortsighted and naive because it incorrectly assumes that powerlines used in the
underground areas of metal and nonmetallic mines will never sustain damage.
According to MSHA, Climax's approach allows avoidable hazardous conditions
to remain in the miner's work environment, and places excessive faith in
the initial construction and manufacturer's testing of every inch, foot and
mile of powerline used in the Climax Mine. MSHA points to the Nelson/Shepich
Memorandum of February 21, 1975 (Joint Exh. 18) as a detailed statement of
its interpretation of the requirements of the regulation, and argues that
the interpretation set forth in the memorandum should be accorded deference,
citing Bell v. Brown, 557 F.2d 849, 855 (D.C. Cir. 1977); Perine v. William
Norton ~mpany;-Iric., 509 F.2d 114, 120 (2d Cir. 1974); S. Rep. No. 95-181,
95th Cong., 1st Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL
MINE SAFETY AND HEALTH ACT of 1977 at 637 (1978) (MSHA's Posthearing Brief,
PP• 2-7).
It is unnecessary to rely upon the Nelson/Shepich Memorandum of
February 21, 1975 (Joint Exh. 18) for the proposition that mandatory safety
standard 30 C.F.R. § 57.12-82 requires the use of additional insulation at

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the points where powerlines contact waterlines, telephone lines and air lines.
The regulation; when interpreted in accordance with the principles of statutory construction, requires the use of additional insulation.

As a general proposition, the rules of statutory construction can be
employed in the interpretation of administrative regulations. See C. D. Sands,
lA Sutherland Statutory Construction, § 31.06, p. 362 (1972). According to
2 Am. Jur.2d, Administrative Law, § 307 (1962), "rules made in the exercise
of a power delegated by statute should be construed together with the statute
to make, if possible, an effectual piece of legislation in harmony with common
sense and sound reason." Remedial legislation directed toward securing safe
work places must be interpreted in light of the express Congressional purpose
of providing a safe work environment, and the regulations promulgated pursuant
to such legislation must be construed to effectuate Congress' goal of accident
prevention. Brennen v. Occupational Safety and Health Review Commission,
491 F.2d 1340 (2d Cir. 1974).

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Mandatory safety standard 30 C.F.R. § 57.12-82 uses the terms "powerlines" and "insulated." As noted previously in this decision, it is apparent
that the drafters of Part 57 of Title 30 intended that the term "powerline,"
in the context of 30 C.F.R. § 57.12-82, envisioned a line that already
included a conductor or conductors with the insulation and jacket as manufactured, such as exists in Exhibit 0-4. Accordingly, the use of the term
"insulated" in 30 C.F.R. § 57.12-82 would be a redundancy if it did not
require the use of additional insulation. It is a time-honored rule of
statutory construction that effect must be given, if possible, to every word,
clause and sentence contained in a statute. "A statute should be construed
so that effect is given to all its provisions, ·so that no part will be
inoperative or superfluous, void or insignificant, and so that one section
will not destroy another unless the provision is the result of obvious mistake or error." C. D. Sands, 2A Sutherland Statutory Construction, § 46.06,
p. 63 (1973). However, it is equally "clear that i f the literal import of
the text of an act is not consistent with the legislative meaning or intent,
or such interpretation leads to absurd results, the words of the statute
will be modified by the intention of the legislature." C. D. Sands, 2A
Sutherland Statutory Construction, § 46.07, p. 65 (1973).
The foregoing interpretation of 30 C.F.R. § 57.12-82 as requiring additional insulation where powerlines achieve contact with waterlines, telephone
lines and air lines, gives effect to both words contained in the regulation,
preserves the intent of the drafters, and harmonizes with Congress' goal of
accident prevention. It cannot be said that the drafters were unaware of
the significance attached to the use of the term "insulated," because such
term is defined by 30 C.F.R. § 57.2 as follows:

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"Insulated" means separated from other conducting surfaces by a dielectric substance permanently offering a high
resistance to the passage of current and to disruptive discharge through the substance. When any substance is said to

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be insulated, it is understood to be insulated in a manner
suitable for the conditions to which it is subjected. Otherwise, it is, within the purpose of this definition, uninsulated. Insulating covering is one means for making the conductor insulated.
It is significant to note that "[w]hen any substance is said to be
insulated, it is understood to be insulated in a manner suitable for the
conditions to which it is subjected." Climax's position in this case fails
to take this requirement into account.
Climax's principal argument asserts that the electrical cables used as
powerlines in the underground areas of the Climax Mine accord the requisite
protection that the regulation seeks to secure by virtue of their very
design. The testimony of Dr. Fred Leffler, Associate Professor of Electrical Engineering at the Colorado School of Mines, supports Climax's contention that the cables, manufactured in ·accordance with the ASTM standards,
are substantially overdesigned in terms of their dielectric properties.
According to Dr. Leffler, the dielectric strength of ethylene-propylene
rubber (EPR) is approximately 350 volts per mil, i.e., approximately 350 volts
per 1/1000 of an inch (Tr. 363, 396). EPR is the-type of insulation used on
much of the cable at issue in the instant cases. These 600-volt rated, EPRinsulated cables have an insulation thickness ranging from 30 to 60 mils,
depending on the size of the conductors (Exh. 0-7, Table lD). The size of
the conductors in the cables at issue ranges from 16 Awg to 500 mcm (Joint
Exh. 6). Accordingly, these cables have insulation around the conductors
with a dielectric strength rating, depending on the size of the conductors,
of 10,500 volts (Awg sizes 14 to 9), 15,750 volts (Awg sizes 8 to 2),
19,250 volts (Awg sizes 1 to 4/0), and 22,750 volts (225-500 mcm). (See,
Exh. 0-7, table lD, and Tr. 361-364.)
~Styrene butadiene rubber (SBR), the other type of insulation used on the
power cables at issue in these proceedings, has a dieletric strength rating
of approximately 250 volts per mil (Tr. 357-358). Accordingly, the 600-volt
rated, $BR-insulated cables have insulation around the conductors with a
dielectric strength rating, depending upon the size of the conductors, of
7,500 volts (Awg sizes 18-16), 11,250 volts (Awg sizes 14-9), 15,000 volts
(Awg sizes 8-2), 20,000 volts (Awg sizes 1 to 4/0), and 23,750 volts (225
to 500 mcm). (See, Exh. 0-7, table lA, and Tr. 357-361.)
The neoprene rubber used as a jacket is not taken into account when
determining the insulation rating. The jacket serves to protect the insulation from outside forces such as oils, acids, alkalies, water or moisture,
flame and abrasion (Tr. 48, 67-68, 365). However, both Dr. Leffler and
Lawrence P. ~ilek, an MSHA electrical engineer, agreed that the jacket has
an insulating capability (Tr. 49, 367). According to Dr. Leffler, neoprene
and lead-cured neoprene have a dielectric strength of approximately 300 volts
per mil (Tr. 367). Cable specifications set forth by Climax's cable supplier, Anixter Brother's Inc., indicate that the jacket on a three-conductor,

3698

16-Awg cable, which appears to be the smallest cable listed on Joint Exhibit
6, is 4/64's of an inch (Exh. 0-5); .!·~·, 62.5 mils. Accordingly, the jacket
on what appears to be the smallest cable would provide an extra 18,750 volts
of dielectric substance on that cable.
The fact that the cables possess these qualities is not dispositive.
It must be borne in mind that the powerline applications addressed by
30 C.F.R. § 57.12-82 are located in the underground areas of metal and nonmetallic mines, an extremely harsh environment. The cables can sustain
physical damage from a variety of sources such as fly rock and concussion
from blasting, rubbing by haulage equipment, and dragging over sharp rock
or metal edges (Tr. 71, 73-74, 198-200, 215, 295, 329). According to
Mr. Filek, if wires or small metal objects, propelled by a blast concussion,
penetrated both the jacket and insulation, a waterline or air line could
become energized in the absence of added insulation if the cable was within
sufficient proximity to the waterline or air line. lbis could occur even
though the cable did not contact the pipe at the point of penetration.
Electricity can conduct along the surface of a contaminated cable to the
point of contact (Tr. 75-76). Furthermore, it it should be borne in mind
that Inspector Atwood worked as a miner at the Climax Mine from 1956 to 1972
(Tr. 195-196). His testimony is deemed particularly probative as relates
to both the conditions existing in the mine and the frequency of employee
contact with the waterlines and air lines. His. testimony reveals that the
mine is wet and that individuals walking through underground areas are walking in mud and water most of the time. It is extremely wet when the snow
melts in spring. In fact, the mine resembles an underground lake in areas
at that time of the year (Tr. 211). The inspector further testified that
it is normal for miners to achieve physical contact with the waterlines and
air lines during their normal working day. Physical contact can occur while
hooking up air and water hoses, while climbing ladders or while stepping
into the dashes (Tr. 214).
Additionally, it is significant to note that both Mr. Williams and
Mr. Pupera testified that they would prefer added insulation at the point of
contact prior to touching the water or air lines, provided the jacket and
insulation had been penetrated (Tr. 315-316, 329-330).
It cannot be said that drafters of Part 57 of Title 30, in formulating
their definition of "insulated," were unaware of either the harsh environment
in the underground areas of metal and nonmetallic mines or the dielectric
properties of jackets and insulation used on cables approved for use in
mines. A substance is "insulated" when it is "insulated in a manner suitable
for the conditions to which it is subjected," a requirement directly related
to the mining environment. The fact that "[i]nsulating covering is one means
for making the conductor insulated" shows that the drafters did not intend to
rely solely upon the cable as manufactured in all cases.

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These considerations, when applied to 30 C.F.R. § 57.12-82, point to
an interpretation requiring the use of insulation in addition to that which
is on the powerline. Given the harsh environment existing in the underground
areas of metal and nonmetallic mines, it would be unreasonable to rely solely

3699

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upon the manufacturer-applied insulation to achieve the regulation's stated
goal. In this environment, a mine operator cannot be 100 percent certain
that every inch of powerline will retain its dielectric integrity throughout
each hour and minute of the day. The added insulation may not be foolproof,
but its use promotes the regulation's objective and thereby contributes to
securing a safe work place for miners. "Should a conflict develop between
a statutory interpretation that would promote safety and an interpretation
that would serve another purpose at a possible compromise of safety, the
first should be preferred." District 6, UMWA v. Department of Interior
Board of Mine Operations Appeals, 562 F.2d 1260 (D.C. Cir. 1972).
Accordingly, I conclude that 30 C.F.R. § 57.12-82 requires the use of'
additional insulation where powerlines contact waterlines, telephone lines
and air lines.
The final question presented as relates to Citation Nos. 331733 and
331744 concerns the type of additional insulation necessary to comply with
the regulation. It is unnecessary to explore this issue in order to determine whether the cited practices constituted violations of 30 C.F.R.
§ 57.12-82 because the mine operator in this instance had no additional
insulation at the points of contact with the air lines and waterlines. The
absence of any additional insulation established violations of the regulation. However, the evidence does disclose the type of additional insulation
necessary, at a minimum, to comply with the requirement, as set forth in the
following paragraphs.
One of MSHA's interpretations is set forth in the last paragraph of the
Nelson/Shepich Memorandum of February 21, 1975 (Joint Exh. 18), as follows:
"Additional insulation means that insulation in addition to the jacketing
shall have a dielectric strength at least equal to the maximum applied
voltage on the conductor." This interpretation is entitled to weight. As
noted by the Commission in The Helen Mining Company, 1 FMSHRC 1796, 1801,
1979 OSHD par. 24,045 (1979):
In accordance with this expression of congressional
intent, we will accord special weight to the Secretary's view
of the 1977 [Mine] Act and the standards and regulations he
adopts under them. His views will not be treated like those
of any other party, but will be treated with extra attention
and respect * * *· [T]his weight may vary with the question
before the Commission, especially where the Secretary has
gained some special practical knowledge or experience through
his inspection, investigation, prosecution, or standards-making
activities * * *·
The record offers no clear indication as to how the drafter of the memorandum reached the conclusion that the additional insulation "shall have a
dielectric strength at least equal to the maximum applied voltage on the conductor." However, the record clearly shows that the wording in that paragraph
of the memorandum does not set forth a logical interpretation as to the amount
of additional insulation needed, as demonstrated by the testimony of two of
MSHA's witnesses, Mr. Lawrence T. Filek and Mr. William S. Vilcheck.

Mr. Filek.received a Bachelor of Science degree from the University of
Illinois in 1951, and thereafter practiced his profession in both Government
and the private sector. At the time of the hearing, he was in his fifth
year of employment at MSHA's Denver Technical Support Center in Lakewood,
Colo~ado.
During cross-examination, he testified as follows:

Q. Now, would it be a fair summary of this memorandum
to say that what the Shepich-Nelson memorandum requires is
that there be some insulation in addition to the jacketing
on the power line?
A.

Yes.

Q. And that that amount of insulation be, looking to the
last sentence, at least equal to the maximum voltage applied
on the conductor?
A. What is implied there is that the dielectric
strength of the insulation should be at least equal to the
insulation -- the dielectric strength of the conductor, and
not the applied voltage.

Q. Well, let me rephrase the question. I think what
the memorandum requires is that the additional insulation
beyond the outer jacketing have a dielectric strength at
least equal to the maximum voltage which would be applied
to the power conductor; isn't that correct?
A.

I don't think so.

Q. Oh? Well, could you restate for me then what you do
believe it says?
A. Well, I could restate for you what I believe it
should say.

Q. Well, I'm interested in what it says, Mr. Filek, not
what you wish it said.
A. Okay. This memorandum equates -- this memorandum
equates dielectric strength, which is usually measured in'
volts per thickness of insulation to voltage, and the units
do not -- do not correspond; therefore, it cannot be an
equality.
(Tr. 113-114).

Mr. Vilcheck received a Bachelor of Science degree in electrical
engineering and a Master of Science degree in electrical engineering in
1973 and 1975, respectively. Both degrees were received from West Virginia

3701

University. He received an emphasis on power systems during his studies
for his Master's of Science Degree, and, at the time of the hearing, was in
his second year of employment at MSHA's Pittsburgh Technical Support Center.
Mr. Vilcheck testified as follows during cross-examination:
Q. Does Joint Exhibit 18 say you should double it? What
does that Joint Exhibit 18 say should be doubled? That is,
is it the voltage applied to the conductor, or is it the
manufacturer's rating on the insulation?

A. Okay. Exhibit 18 to me says that -- it says,
"Insulation in addition to the jacketing shall have a dielectric strength at least equal to the maximtnn voltage on the
conductor."
Larry says we are kind of comparing apples to oranges.
I think it results from a nontechnical person writing this
memorandum. Okay?
You know, we can argue what his intent was or how we
interpret it to be, but actually what he has verbatim I don't
think makes a whole lot of sense. Okay? We know that he's
trying to put additional insulation on the conductor, and I
think what he means is at least equal to that of the insulation on the conductor, but I --

Q.

But that's not what it says.

A. What it says may be
I'm not sure what it says is
what his intent was either. Okay?
(Tr. 170).
The testimony of Mr. Filek reveals that the additional insulation will
meet the requirements of 30 C.F.R. § 57.12-82 if it possesses the following
traits: A piece of permanently fastened, nonabsorbent insulator should be
placed between the cable and the waterline, telephone line, or air line
(Tr. 107). The added insulation should have a dielectric rating at least
equal to the dielectric rating of the cable when it was new (Tr. 110).
This is not to say, of course, that other methods of insulation cannot
be employed. The only conclusion that can be drawn from the record is that
added insulation with the foregoing characteristics is, at a minimmn, sufficient to comply with 30 C.F.R. § 57.12-82.
In view of the foregoing, and particularly because in these instances
no additional insulation whatsoever was applied, it is found that the practices
set forth in Citation Nos. 331733 and 331744 were violations of 30 C.F.R.
§ 57.12-82.
The applications for review will be denied in Docket Nos. DENV
78-553-M and DENV 78-554-M, and a civil penalty will be assessed for these
violations in Docket No. WEST 79-340-M.

--

As noted previously in this decision, Citation No. 331747 alleges a violation of mandatory safety standard 30 C.F.R. § 57.12-10 in that several
telephone lines were observed hanging with and touching energized powerlines.
The cited mandatory safety standard provides as follows: "Telephone and lowpotential signal wire shall be protected, by isolation or suitable insulation, or both, from contacting energized power conductors or any other power
source."

The inspector's testimony reveals that the citation charges a violation
of that portion of the regulation requiring telephone and low-potential signal wire to be protected, by isolation and/or suitable insulation, from contacting energized power conductors (see, e.g., Tr. 219, 251, 258). The
phrase "or any other power source," as used in the regulation; refers to
electrical switchboxes and items of a similar nature, but does not refer to
a line (Tr. 258).

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As noted previously in this decision, the inspector testified that the
telephone lines in question had jackets, ·and that the citation addresses the
outer jackets of telephone lines touching the outer jackets of power cables.
It is therefore clear that the telephone lines were not in contact with "power
conductors" in view of the definition of "conductor" set forth at 30 C.F.R.
§ 57.2.
Accordingly, the application for review will be granted in Docket No.
DENV 78-555-M, and the proposal for a penalty in Docket No. WEST 79-340-M
will be dismissed as relates to Citation No. 331747.
2.

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Evaluation of Civil Penalty Assessment Criteria

The parties stipulated that the primary purpose of this litigation is
to permit Climax and MSHA to resolve a conflict between them regarding the
interpretation of the regulations at issue. The parties further stipulated
that if violations are found to have occurred, then the civil penalties
assessed by the Office of Assessments would be appropriate. The relevant
proposed assessments are identified as follows:

ll __ ,)

[

Citation No.
331733
331744

Date
7/27/78
7 /27 /78

30 C.F.R.
Standard

Assessment

57.12-82
57.12-82
Total:

$ 72
78
$150

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The record fully supports the assessment of civil penalties in the
amounts proposed by the Office of Assessments. The absence of operator
negligence is deemed of particular significance to this determination.
The record reveals that Climax is a large operator, producing approximately 50,000 tons of ore per day; that Climax has no history of previous
violations for wi1ich assessments have been paid during the period of time

3703

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prior to July 27, 1978 (Tr. 22-23); and that Climax demonstrated good faith
in attempting rapid abatement (Tr. 21-22, 202-203, 213). No evidence was
presented establishing that the assessment of civil penalties will affect
Climax's ability to remain in business, and, accordingly, it is found that
the assessment of civil penalties for Citation Nos. 331733 and 331744 will
not affect Climax's ability to remain in business. Hall Coal Company,
1 IBMA 175, 79 I.D. 688, 1971-1973 OSHD par. 15,380 (1972).
The air lines and waterlines in the Climax Mine are grounded to the
rails of the haulage tracks at 500-foot intervals (Tr. 320), and are supported at 6- to 10-foot intervals on supports attached to rock bolts driven
into the rock (Tr. 339). The rock at the Climax Mine makes a very good
~rounding medium (Tr. 339).
Furthermore, the cables at issue in these proceedings were in satisfactory condition. Based upon these considerations,
the design characteristics of the cables at issue in these proceedings and
the voltages applied to the cables, Climax could have had some foundation
for concluding that additional insulation was not necessary at the points
where powerlines contacted waterlines, telephone lines and air lines because
it could have concluded in good faith, although erroneously, that the
objective of the regulation had been met • . Accordingly, it is found that
Climax did not demonstrate negligence in connection with the practices
described in the citations.
The best available evidence indicates that no injuries have been sustained at the Climax Mine as a result of powerlines energizing waterlines,
telephone lines or air lines (Tr. 297-298). In fact, Mr. Pupera, the electrical superintendent, had never heard of the AC system energizing a waterline or an air line at the Climax Mine, although he had heard of it occurring from other causes. He related approximately two or three occurrences
over an 8-year period in which the trolley wire was knocked·down and achieved
contact with a pipe. In view of these considerations, the characteristics
of the jacketed and insulated cables at issue in these proceedings, and the
specific electrical applications encompassed by the citations, it is found
that the occurrence of the event against which the standard is directed was
improbable. However, if the event did occurr, then all miners achieving proper conductive contact with the waterlines or air lines would be exposed to
serious or fatal injury (see,~· Tr. 213). Accordingly, it is found that
the violations were moderately serious.
In view of the foregoing, Climax will be assessed civil penalties as
set forth above.
VI.

Petitioner's Motion in Docket No. WEST 79-340-M to Withdraw the Proposal
for a Penalty as Relates to Certain Citations

MSHA filed a written motion during the hearing on March 11, 1980, to
withdraw the proposal for a penalty as relates to six citations. The motion
states, in part, as follows:
1. From August 7, 1978, to December 27, 1978, the following citations were issued to respondent:

3704

(a)

No.· 333300 for an alleged violation of 30 C.F.R.
§ 57.12-10;

(b)

No. 333331 for an alleged violation of 30 C.F.R
§57.12-1;

(c)

No. 333242 for an alleged violation of 30 C.F.R.
§ 57.12-25;

(d)

No. 333246 for an alleged violation of 30 C.F.R.
§ 57.12-13;

(~)

No. 333335 for an alleged violation of 30 C.F.R.
§ 57.12-13;

(f)

No. 333336 for an alleged violation of 30 C.F.R.
§ 57.12-13.

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2. On July 25, 1979, the Federal Mine Safety and Health
Administration, Office of Assessments, assessed proposed penalties for each of the alleged violations set forth in the
aforesaid citations, in the following amounts:
Assessed
Proposed Penalty

Citation No.

f

333300
333331
333242
333246
333335
333336

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$255.00
$325.00
$ 56.00
$325.00
$325.00
$325.00

3. There is insufficient evidence to establish a violation of the aforesaid mandatory standards as the only
witness who can testify to the conditions of the alleged
violations is permanently unavailable to testify at the
hearing.

f

In view of the representations set forth above, an order will be entered
granting MSHA's motion.

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!

Conclusions of Law

1. Climax Molybde.-ium Company and its Climax Mine have been subject to
the provisions of the 1977 Mine Act at all times relevant to these
proceedings.

2." Under thP. 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings.

3705

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3. Federal mine inspector James Atwood was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of
Citation Nos. 33173"3, 331744 and 331747.
4. The practices set forth in Citation Nos. 331733, and 331744 were
in violation of mandatory safety standard 30 C.F.R. § 57.12-82.
5. The practice described in Citation No. 331747 was not a violation
of mandatory safety standard 30 C.F.R. § 57.12-10.
6. All of the conclusions of law set forth previously in this decision
are reaffirmed and incorporated herein.
VIII.

Proposed Findings of Fact and Conclusions of Law

All briefs filed in these proceedings, insofar as they can be considered
to have contained proposed findings and conclusions, have been considered
fully, and except to the extent that such findings and conclusions have been
expressly or impliedly affirmed in this decision, they are rejected on the
ground that they are, in whole or in part,· contrary to the facts and law or
because they are immaterial to the decision in these cases.
ORDER
IT IS ORDERED that the February 25, 1980, determination in Docket No.
WEST 79-340-M granting MSHA's motion to withdraw the proposal for a penalty
as relates to Citation Nos. 333241, 333339 and 333340 be, and hereby is
AFFIRMED.
IT IS FURTHER ORDERED that MSHA's March 11, 1980, motion to withdraw the
proposal for a penalty in Docket No. WEST 79-340-M as relates to Citation
Nos. 333300, 333331, 333242, 333246, 333335 and 333336 be, and hereby is
GRANTED.
IT IS FURTHER ORDERED that the applications for review irt Docket Nos.
DENV 78-553-M and DENV 78-554-M be, and hereby are, DENIED, and that such
application for review proceedings be, and hereby are, DISMISSED.
IT IS FURTHER ORDERED that the application for review in Docket No.
DENV 78-555-M be, and hereby is, GRANTED, and that Citation No. 331747 be,
and hereby is VACATED. The proposal for a penalty in Docket No. WEST
79-340-M is herewith DISMISSED as relates to such Citation.
IT IS FURTHER ORDERED that Climax be, and hereby is, ASSESSED civil
penalties in the amount of $150, as set forth in Part V(B)(2), supra, and
that Climax pay such civil penalties within 30 days of the date of this
decision.

~

9-.~

n • Cook
~~
nistrative Law Judge

Distribution:
Charles w. Newcom, Esq., Sherman & Howard, 2900 First of Denver Plaza,
633-17 Street, Denver, Colorado 80202 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Certified
Mail)
Mr. David Jones President, and James Kasie, Law Clerk, Oil, Chemical
and Atomic Workers International Union, Local No. 2-24410, P.O.
Box 949, Leadville, Colorado 80461 (Certified Mail)
James F. Engelking, Esq., W. Michael Hackett, Esq., 13949 West Colfax
Avenue, Golden, Colorado 80202 (Certified Mail)

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Mr. Edwin Matheson, Chairman, International Brotherhoood Electrical
Workers, Local Union No. 1823, P.O. Box 102, Minturn, Colorado 81645
(Certified Mail)
Ms. Sylvia Balltrip, Office and Professional Employees International
Union, Local No. 410, P.O. Box 1179, Leadville, Colorado 80461
(Ce rt i f ied Mail)

•.. J

Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

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3707
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OEC 1 8 1980

Civil Penalty Proceeding

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

Docket No. LAKE 80-192-M
A.C. No. 33-03760-05001

v.
Dorr Street Pit Mine
MAUMEE HAULERS AND EXCAVATORS,
Respondent
DECISION
Appearances:

Marcella L. Thompson, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Petitioner;
Robert H. Parker, Vice President, Maumee Haulers
and Excavators, Swanton, Ohio, for Respondent.

Before:

Judge Lasher

This proceeding arises under section llO(a) of the Federal Mine Safety
and Health Act of 1977~ A hearing on the merits was held in Toledo, Ohio,
on August 19, 1980. After considering evidence submitted by both parties
and proposed findings of fact and conclusions of law prof erred during
closing argument, I entered an opinion on the record. 1/ My bench decision
containing findings, conclusions, and rationale appears below as it appears
in the transcript, other than for minor corrections of grammar and punctuation and the excision of obiter dicta:
This proceeding arises upon the filing of a petition for
assessment of penalty by the Secretary of Labor on March 28,
1980, pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 820(a) •

.

The Secretary seeks penalties against Respondent for the
commission of two violations cited in Citation Nos. 368929
and :68930, which were issued on July 18, 1979. Citation
No. 3~8929 alleges an infraction of 30 C.F.R. § 5(.9-ll

I./

Tr. 104-112.

3708

and Citation No. 368930 alleges an infraction of 30 C.F.R.
§ 56.11-2.
These two citations involved the s,ame Insley
crane, which was observed on July 18, 1979, in the Respondent's Dorr Street Pit and was seen by-the inspector to have
the following allegedly violative conditions present: First,
that the window in the side door of the crane was cracked and
broken; and, second, that a handrail was not provided on the
elevated walkway on the crane.
The Respondent, in its response to my prehearing order,
indicated two critical issues, one of which I find is ultimately dispositive of this case. The first issue raised by
Respondent is that the crane in question was normally operat~d by a part-owner of the corporation, not an employee.
Ui.e second issue was that the machine in question (the crane)
was out of service and was not in use at the time the inspector cited the allegedly violative conditions. The Respondent
admits that the two violations alleged, that is, the window
violation and the handrail violations, did exist. Accordingly,
I preliminarily conclude that the conditions described in the
two subject citations did exist. This, of course, in view of
the questions raised by Respondent, does not, in and of
itself, constitute a finding that a violation of the Act did
in fact occur.
Also preliminarily, I note that the record clearly indicates that the Respondent had no history of previous violations, and in this connection I further note that the two
citaions were issued upon the first inspection of the sand
pit in question. In addition, I preliminarily find, based
upon the stipulation of the parties, that any penalty which I
might assess in this case, up to the proposed initial assessment of MSHA, would not affect the Respondent's ability to
continue in business. The parties also indicated that the
Respondent is a small operator, so there is no (conflict)
with respect to that traditional penalty assessment factor.
In view of my subsequent finding, I find it unnecessary to
evaluate the evidence with respect to negligence and gravity.

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The Respondent, in closing argument, reiterated the two
questions which had been raised previously in its prehearing
submission. The second such issue being that since the cited
machine was operated only by the owners of the corporation and not
by employees, the jurisdiction of the Secretary, and I would
presume the jurisdiction of the Federal Mine Safety and Health
Review Commission, would not attach. I find no merit to this
contention. The law is relatively clear and settled on the
point that a family-owned and family-operated business does
come within the (coverage of the) Act. Also, the intent of
Congress in enacting this protective legislation extends to

3709

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any person, not just miners or employees of these kinds of
companies. Acco~dingly, I find that the Respondent does come
within the coverage of the Act, is subject to regulation by
MSHA under the Act, and that this entire proceeding is subject to the review function of the Federal Mine Safety and
Health Review Commission. See Marshall v. Kraynak, 604 F.2d
231 (3rd Cir. 1979). The fact that the three Parker brothers
actually own and engage in some of the work of the mine in
question is no bar to their inclusion within the jurisdiction
of the Act and I further find that they are miners the same
as are their employees. 30 U.S.C. § 820(d)(g). provides that
a "miner" means "any individual working in a coal or other
mine." See Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980).
In its closing argument the Respondent also contended
that the two citations were improperly issued based upon the
following (stated) logic: "We feel that a machine that is
visually out of service should not be subject to the issuance
of a citation," or words to that effect. I do find merit in
this last contention. The evidence indicates that on July 18,
1979, the inspector, Michael J. Pappas, observed the Insley
crane in the pit. Even though there were no tags on this
piece of equipment indicating that it was not to be used, the
inspector knew the engine was out of service. The investigation by MSHA, both at the time and subsequently, was not such
as to indicate that the crane was being operated in the
allegedly violative condition described in the two citations.
Nor was there any investigation which would indicate that the
crane had ever operated in that condition. There is no evidence from employees of the Respondent which indicate that
the machine, either before July 18, 1979, or after July 18,
1979, operated in the condition described in the two citations. The inspector was unable to testify that he had ever
seen the crane in operation at all.
The president of Respondent, Mr. Ike Parker, testified
that he had purchased the subject crane some 3 or 4 months
earlier, that is, prior to July 18, 1979, and that it had
been broken down and out of repair most of the time in
between, and that on July 18, 1979, a new crane was on the
premises and being operated by his brother, Conrad Parker.
Ike Parker also indicated that he was negotiating with
Columbus Equipment Company regarding the purchase of this new
Insley crane and that in order to obtain a better trade-in
price for the old crane, which was the subject of the two
citations, he was attempting to -- and here I paraphrase -improve the performance of the engine. Ike Parker indicated
that the whole back end of the old crane was out. Inferring
from his testimony, I find it was in an obvious state of condition to indicate to anyone that it was not in operating
condition.

3710

Section 102(b)(3)(h)(l) of the Act (provides) that a
"coal or other mine," can include equipment and machines.
It also indicates that for such equipm~nt or machines to be a
mine that they, insofar as applicable here, must be "used in,
or (are) to be used" in the work of extracting minerals from
their natural deposits." The evidence in this record clearly
indicates that the machine was out of service at the time the
inspector issued the citations. Thus, I find that the equipment in question was not within the definition so as to be
subject to the issuance of citations.and withdrawal orders.
Therefore, I find that the position of Respondent in this case
is meritorious and that the two citations in question were
improperly issued. 2/ Accordingly, it is ordered as follows:
Citation Nos. 368929 and 368930, issued July 18, 1979, are
vacated, and this proceeding is dismissed.

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Michael A~ Lasher, Jr., Judge

Distribution:
Marcella L. Thompson, Esq., Office of the Solicitor, U.S. Department
of Labor, 1240 East 9th Street, Room 881, Cleveland, OH 44199
(Certified Mail)

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Robert Parker, Vice President, Maumee Haulers and Excavators,
Route No. 5, Box 222, Swanton, OH 43558 (Certified Mail)

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See Plateau Mining Company, 2 IBMA 303 (1973).

3711

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

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

DOCKET CENT 80-114-M
A/O NO. 13-01910-05001
DOCKET CENT 80-121-M
A/O NO. 13-01160-05001
DOCKET CENT 80-141-M
A/O NO. 13-01848-05001
DOCKET CENT 80-142-M
A/O NO. 13-01349-05001
(Consolidated)
DOCKET CENT 80-201-M
A/O NO. 13-01349-050~
DOCKET CENT 80-30-M
A/O NO. 13-01802-05001

Petitioner,
v.

MAUDLIN CONSTRUCTION COMPANY,
Respondent.

Mines:

Clay County or Stellish Pit,
Solberg Pit, Clark Pit,
Mortvedt Pit and Nelson Pit

DECISION
APPEARANCES:
Eliehue C. Brunson, Esq., Office of the Solicitor
United States Department of Labor, 911 Walnut Street, Room 2106
Kansas City, Missouri 64106
for the Petitioner,
Stewart H. M. Lund, Esq.,
P 0 Box 634, Webster City, Iowa 50595
for the Respondent.
Before:
I.

Judge Virgil E. Vail

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"].
The proposals for penalties
allege sixteen violations of safety standards.
Pursuant to notice, a hearing on the merits was held in Fort Dodge, Iowa
on May 20 and 21, 1980. Raymond C. Weston, Sr., Carl L. Smith and Charles E.
Peaton, federal mine inspectors, testified on behalf of the petitioner. Edward
David Ammala, a supervisor for the Mine Safety and Health Administration,
testified for the petitioner. Charles P. Becker and Harlan Von Seggren
testified on behalf of the respondent. The parties filed post hearing briefs.

3712

II.

Stipulations

During the course of the hearing, the parties entered into the following
stipulations:
1. The mine inspectors who issued the citations were employees of the Mine
Safety and Health Administration and authorized representatives of the Secretary
of Labor.
2. The Administrative Law Judge has jurisdiction of this
section 107 of the Act.

~ase

pursuant to

3. The proposed penalties would not adversely affect the respondent's
ability to continue in business.
4.
III.

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The respondent is a medium-sized operator in the State of Iowa.

Motions

Counsel for the Petitioner moved that the record be left open after the
hearing in order to allow him an opportunity to submit a computer printout sheet
from the Office of Assessments showing respondent's record of past violations.
The undersigned ordered that the record was to be left opened until such time as
respondent's counsel received a copy of the printout. Respondent, in its post
hearing brief, renewed its objection to the admission of the computer printout
sheet on the grounds that respondent did not have the opportunity to
cross-examine witnesses as to the history or relevancy of the proposed exhibit.
Respondent's objection is hereby sustained and the exhibit will not be admitted
into evidence. Therefore, the penalties assessed herein are based on the
assumption that the respondent had no history of any violations prior to the
violations alleged in the present cases.
On August 15, 1980, respondent filed a motion to strike petitioner's post
hearing briefs. Respondent claims that the petitioner's late filing of the
briefs has prejudiced the respondent. I disagree. Respondent has failed to
demonstrate any prejudice. Therefore, its motion is denied and petitioner's
briefs and the arguments contained therein have been considered.
IV.

Settlement Approvals

In the case of Secretary of Labor v. Clay County Highway Department,
CENT 80-30-M, Maudlin Construction Company, as the leasee of the Stellish Pit,
accepted the defense in this matter. This case involved three alleged violations. Respondent agreed to, and has in fact already paid the proposed penalty
of $32.00 for citation no. 176765. Citation Nos. 176766 and 176767 were dismissed by the petitioner on the ground that the accuracy of the test results
could not be proven.
In docket number CENT 80-114-M, the respondent agreed to affirm citation
no. 176800 and pay the proposed penalty in the amount of $22.00.
The proposed settlement agreements are hereby approved by the undersigned.

3713

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V.

Discussion

The five remaining cases involve four different mine sites, the Mortvedt,
Solberg, Nelson and Clark Pits. The initial inspections at these pits took
place between July 9, 1979 and September 18, 1979.
CENT 80-141-M and CENT 80-114-M
Cases CENT 80-141-M and CENT 80-ll4-M involve six citations all alleging a
violation of mandatory safety standard 56.5-50.1 These citations, involving
similar issues of fact and law, will be dealt with together.

1/

56.5-50. Mandatory. (a) No employee shall be permitted an exposure to
noise in excess of that specified in the table below. Noise level
measurements shall be made using a sound level meter meeting specifications
for type 2 meters contained in American National Standards Institute (ANSI)
Standard SI .4-1971, "General Purpose Sound Level Meters," approved
April 27, 1971, which is hereby incorporated by reference and made a part
hereof, or by a dosimeter with similar accuracy. This publication may be
obtained from the American National Standards Institute, Inc., 1430
Broadway, New York, New York 10018, may be examined in any Metal and
Nonmetal Mine Health and Safety District or Subdistrict Office of the Mine
Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day,
hours of exposure:

Sound level dBA,
slow response
90
92
95
97
100

8
6
4
3
2

1-1/2

102

I

105
110
115

1/2
1/4 or less.

No exposure shall exceed 115 dBA. Impact or impulsive noises shall
not exceed 140 dB, peak sound pressure level. Note. When the daily noise
exposure is composed of two or more periods of noise exposure at different
levels, their combined effect shall be considered rather than the
individual effect of each.
If the sum
then the mixed exposure shall be considered to exceed the permissible
exposure. Cn indicates the total time of exposure at a specified
noise level, and Tn indicates the total time of exposure permitted
at that level. Interpolation between tabulated values may be determined
by the following formula:
Log T = 6.322-0.0602 SL
Where T is the time in hours and SL is the sound level in dBA.

3714

The following issues pertain to citation nos. 175215, 175217, 175216,
175319, 175320 and 176783:
1. Did the testing procedures employed by the mine inspectors in
measuring the noise levels conform to the procedures, as set forth in
56.5-50(a), and

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2. Were the instruments properly calibrated in order to assure
accurate noise level readings.
Respondent disputes the accuracy of the testing procedures used by the
inspectors, attacking them in several ways. Only respondent's first two
arguments-need to be examined in order to reach a decision.
First, respondent argues that a sound level meter must be used to
check or convert the dosimeter readings. (Respondent's brief at p. 4)
Contrary to respondent's argument, I have found nothing in the Act that
requires that sound level meters be used in conjunction with dosimeters.
The applicable standard, found at 30 C.F.R. 56.5-50(a), requires that a
sound level meter or a dosimeter with similar accuracy be used in testing
noise levels. While respondent's expert, Harlan Von Seggren, testified
that he would not use a DuPont 376 dosimeter alone for determining noise
levels, nothing in the record supports a conclusion that this type of
dosimeter cannot be used to accurately determine noise levels.

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Secondly, respondent alleges that the test results are inaccurate due
to the length of time between when the dosimeters were calibrated and when
the tests were performed. Citations 175215, 175216 and 175217 were all
issued on August 17, 1979 by Raymond Weston, Sr .• Mr. Weston testified
that he calibrated the instruments on July 20, 1979, a period of 27 days
prior to the inspection (Tr. 39). Citations 175319, 175320 and 176783 were
issued on July 25, 1979 by Carl L. Smith. The dosimeters used by Smith
were calibrated on July 6, 1979, 18 days prior to testing (Tr. 220).

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The inspectors testified that they had been instructed that the
dosimeters were to be calibrated every 30 days and that the instruments
should be calibrated prior to an inspection (Tr. 243). However, neither
inspector felt that it was necessary to calibrate the instruments the day
before or the day of the inspection.
Edward Ammala, supervisory inspector for the western half of Iowa,
stated that one of his duties as a supervisor is to review the citations
that have been issued. He stated that he checks for any discrepancy
between the sound level meter readings and the results of the
dosimeter tests. In doing so he claimed that he c~n tell by the dBA level
approximately what the dosimeter reading will be (Tr. 268). He therefore
concluded that the dosimeter readings in the citations in question were
accurate.

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3715
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I find the testimony of respondent's expert to be more credible than
that of the Petitioner's witnesses. Harlan Von Seggren stated that, in
order to assure an accurate reading, a dosimeter must be calibrated
immediately prior to conducting the test (Tr. 153). According to Mr. Von
Seggren, a dosimeter is a very sensitive piece of equipment and can easily
be affected by temperature changes, movement and other outside influences.
In his opinion, the lapse of time between the calibration of the
instruments and the actual tests would invalidate the results. Petitioner
failed to offer any testimony to refute the statements of Mr. Von Seggren.
_
Petitioner's explanation for not calibrating the dosimeters closer
to the time when the tests were going to be performed was that it takes
approximately twenty minutes to calibrate each machine. I find this
explanation unacceptable. Section 104 of the Act requires that when a
violation is found that a citation must be issued and a penalty assessed.
It is grossly unfair to operators to subject them to testing procedures,
the accuracy of which cannot be proven, in order for the inspectors to save
time. The burden of proving the accuracy of test results is with the
Petitioner. The Petitioner having failed in his burden, the citations are
hereby vacated.
CENT 80-201-M
This case involves three citations. Citation Nos. 176795 and 176796
both allege a violation of mandatory safety standard 30 C.F.R. 56.14-1.2
Citation No. 176797 alleges that respondent violated mandatory safety
standard 30 C.F.R. 56.11-1.3
At the conclusion of Petitioner's evidence, respondent moved to
dismiss the citations on the ground that the government had failed to
establish a prima facie case. Respondent did not present any evidence nor
offer any testimony as to these citations. At the time of the hearing, I
reserved my ruling on respondent's motion until I had an opportunity to
review the record. Having done so, I conclude that respondent's motion to
dismiss should be granted and the citations dismissed.
The only testimony offered by Petitioner was that of the inspector who
issued the citations. The inspector could not identify the photographs
that he had allegedly taken and his notes were contradictory (Tr. 319 and
326).
The issuance of a citation is insufficient to establish a prima facie
case. Petitioner having failed to offer any credible testimony to prove
the existence of the alleged violations they are hereby dismissed.

2/

56.14-1. Mandatory. Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons, shall be guarded.

3/

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

3716

CENT 80-121-M
Issues:
1.

Whether or not the front end loader was equipped with an operative
back up alarm and, if so,

2.

Did this defect affect the safety of miners.
t,-.

Discussion

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Citation 175313 alleges that respondent violated mandatory safety
standard 30 C.F.R. 56.9-2 4 by failing to have an operative back up
alarm on a front end loader.
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The uncontradicted testimony of Carl Smith, the inspector who issued
the citation, was that the front end loader had been equipped with a back
up alarm; however, at the time of his inspection on July 9, 1979 it was
inoperative:
Respondent contends that there was no violation, even though the alarm
was inoperative, because the alarm was an additional safety feature
installed by the respondent, which was not required by the Act. I
disagree. The fact that the alarm was inoperative subjects the respondent
to liability under 30 C.F.R. 56.9-2, unless there is a showing that even
though the alarm was not working it would not affect the safety of
respondent's employees.

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Witnesses for both parties testified that the operator of the loader
would not have a clear view of someone on the ground (Tr. 334 and 355).
Although the testimony of the witnesses differed as to how far the view of
the operator would be obstructed, it is unrefuted that there was a blind
spot. Based on this fact and the testimony of Mr. Smith that he observed
other employees working in the inunediate vicinity, I find that a violation
did occur.

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Penalty
The likelihood of an injury resulting from this violation was remote
since the loading process was confined to a small area and most of the
employees in the loading area would be in trucks. However, if an accident
were to occur it could be of a serious nature. The respondent acted in
good faith by trying to abate the citation immediately. For these reasons,
I find that a penalty of $40.00 is appropriate.

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56.9-2 Mandatory. Equipment defects affecting safety shall be
corrected before the equipment is used .

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3717

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CENT 80-142-M
~itation 176794 alleges that respondent violated 30 C.F.R. 56.12-85
by failing to provide a bushing on the conductor where it entered the
distribution box on a light. The uncontradicted facts are that the wires
were not equipped with a bushing, but that they were insulated with tape.
The power source for the light was a portable generator, that in turn
received its power from a diesel engine (Tr. 358). Therefore, there was
never any reason for any employees to b~ in the vicinity of the lightpole
(Tr. 359) •.

·1

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I find that a violation did occur. Although respondent argued that
the tape eliminated any shock hazard, the standard requires that when wires
pass through metal frames the holes nrust be bushed.
Penalty
I find that respondent's negligence and the gravity of the violation
were low ·based on the evidence presented that the wires had been insulated.
It appears there was only a slight chance of anyone being injured since it
was not necessary for anyone to be near the light in order to turn it off
or on •. The respondent promptly abated the citation. For the reasons
stated herein, I reduce the proposed penalty and conclude that a penalty of
$10.00 is appropriate under the circumstances.
In citation no. 176799 the petitioner alleges a violation of safety
standard 30 C.F.R. 56.4-18,~ based on the inspector's statement that
oxygen cylinders were being stored in the parts trailer where oil and
grease containers were also kept (Tr. 313). According to Mine Inspector
Carl Smith, this condition created a fire hazard and would add to the
intensity of a fire if one were to occur.
I find that a violation did occur. Respondent did not deny that the
oxygen was being stored in the same trailer containing oil and gas cans.
Respondent contends that a citation should not have been issued since the
oxygen bottles were immediately removed. The Act provides that when a
violation is found to have occurred that a citation is to be issued.
Respondent's promptness in abating the citation goes to the company's good
faith. Also, the fact that the trailer was parked away from the area where
the employees were working and that they would only be in the area to pick
up supplies goes to the gravity of the violation and not to whether a
violation did in fact occur.

5/ 56.12-8 Mandatory.

Power wires and cables shall be insulated
adequately where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes, and electrical
compartments only through proper fittings. When insulated wires, other
than cables, pass through metal frames, the holes shall be
substantially bushed with insulated bushings [Section 56.12-8 made
mandatory and revised at 42 FR 29420, June 8, 1977, effective July 8,
1977].

6/ 56.4-18 Mandatory. Oxygen cylinders shall not be stored in rooms or
areas used or designated for oil or grease storage.

3718

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Penalty
Under the circumstances, as set forth above, I find that a penalty of
$28.00 is appropriate.
Findings of Fact
1. Seventeen citations were issued to the respondent between July 9,
1979 and September 18, 1979 at five different mine sites. These facts
alone do not constitute harassment on the ·part of MSHA, as alleged by the
respondent.
2. Petitioner failed to prove the accuracy of the dosimeter
readings.
3. Petitioner failed to establish a prima facie case with regard to
the three citations contained in Docket No. CENT 80-201-M. Therefore,
respondent's motion to dismiss is granted.

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4. The back-up alarm on the front end loader was inoperative. This
presented a safety hazard for employees working in the area, since the
operator would be unable to see persons walking behind the loader.
5. The hole in the conductor box was not bushed as required by
mandatory safety standard 30 C.F.R. 56.12-8.
6. Oxygen cylinders were being stored in the same trailer as containers of oil and grease thus presenting a fire hazard.
ORDER
Case

Citation No.

Assessment

CENT 80-30-M
CENT 80-114-M
CENT 80-121-M
CENT 80-142-M

176765
176800
175313
176794
176799

$
$
$
$
$

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32.00
22.00
40.00
10.00
28.00

l.__;

$ 132.00

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It is hereby ORDERED that Respondent pay the penalties totaling
$ 132.00 within thirty (30) days from the date of this decision.

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Virgil£'.)!. Vail
Administrative Law Judge

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Distribution:

Eliehue C. Brunson, Esq., Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64106
Stewart H. M. Lund, Esq.
P 0 Box 634

Webster City, Iowa 50595

3720

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

1·

DEC 1 8 1980

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Civil Penalty Proceeding

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

\ ~-.

Docket No. VA 80-85
A.C. No. 44-04048-03014V

v.

No. 1 Mine
LITTLE EGYPT COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Catherine M. Oliver, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Petitioner;
Harold Jackson, Little Egypt Coal Company, Grundy,
Virginia, for Respondent.

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Judge Melick

Hearings were conducted in this case in Abingdon, Virginia, on November 5,
1980, following which I rendered a bench decision. That decision, which I
affirm at this time, is set forth below with only nonsubstantive corrections.
This proceeding is, of course, before me under section
105(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815, the "Act." The gene.ral issues are whether
the Little Egypt Coal Company (Little Egypt) has violated
the regulatory standards cited in the petition filed by the
Department of Labor, Mine Safety and Health Administration
(MSHA) in this case, and, if so, what is the appropriate
penalty to be paid by Little Egypt.
Section llO(i) of the Act sets forth the criteria that
I should consider in arriving at an appropriate penalty for
violations under the Act, namely: the operator's history
of previous violations, the appropriateness of the penalty
to the size of the business of the operator charged, whether
the operator was negligent, the effect on the operator's
abililty 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 the violation.
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3721

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Now, I observe that the one citation before me is a section 104(d)(l) citation and the two orders before me are
orders of withdrawal under section 104(d)(l). These ordinarily require for their validity certain specific findings
regarding "unwarrantable failure" and "significant and substantial." Since this is a civil penalty proceeding, however,
only the fact of the violation and the relevant criteria under
section llO(i) of the Act will be considered.
Now, going to the one citation before me, Citation No.
696006, I find that the violation did occur as charged. The
citation charg~s that dry, loose coal was permitted to accumulate approximately 35 feet outby Survey Station No. 2506,
located in the No. 4 entry intake airway, adjacent to the
belt entry. The "accumulation" was approximately 4 feet high,
20 feet wide, and 60 feet long.
The cited standard (that is, 30 C.F.R. § 75.400) reads as
follows: "Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal and other combustible materials shall be cleaned up and not be permitted to accumulate
in the active workings or on electrical equipment therein."
MSHA inspector Harold Burnett testified here today--and
I find his testimony to be completely credible and on essential points uncontradicted--that on July 31, 1979, in the
course of a regular inspection with Mr. Ball, another MSHA
inspector, that he did in fact observe in the No. 4 intake
entry the described stockpile of coal. He measured that pile
of coal using a 50-foot rule and found the size as reported
in the citation. His testimony is undisputed, so I find that
the size of the material to be as it was cited.
Now, with respect to the combustibility of this material,
I have some problems with Mr. Burnett's testimony because at
one point he says, "My visual observations were not sufficient to determine the combustibility," and at another point
he testified that in essence those observations were sufficient from which he could conclude that the material was
combustible. Burnett did testify, however, that the material
which looked like coal was indeed black, was in fact dry,
and was in fact not intermixed with observable noncombustibles such as rock dust or pieces of cement block or
sundry other non~ombustible materials.
The equivocal testimony is, in any event, obviated by the
laboratory tests on the samples taken by Mr. Burnett. The
samples, taken at each end of this pile and one in the middle,

3722

showed only 30, 27, and 23 percent incombustible material,
respectively. These tests therefore demonstrate the presence
of a rather high percentage of combustible material.
Now, even if you do not accept Burnett's testimony regarding the combustibility of this material, Mr. Jackson himself
(the owner of Little Egypt) testified that this stockpile was
treated the same as any other coal that is shipped out of his
mine, that is, it was sold as part of its mine product.
Clearly, if this "accumulation" did not consist of combustible materials to a significant degree, it could not have
been so disposed.
Now, from the vast size of the stockpile alone, which was
4 feet high, 20 feet wide and 60 feet long, I conclude also
that it was indeed an "accumulation" within the ambit of
recent decisions by the Mine Safety and Health Review
Commission. Secretary v. Old Ben Coal Company, 1 FMSHRC 1954
(December 1979); Secretary v. Old Ben Coal Company, 2 FMSHRC
2806 (October 1980). Now, indeed, even though the Commission
has indicated that it is not necessary in proving a violation
of this standard that some time have had elapsed while that
"accumulation" remains, it is apparent from Jackson's own
testimony that the "accumulation" had in fact existed since
the previous day.
Now, I also find that Little Egypt was grossly negligent
in allowing this coal to accumulate as it did. Jackson
admitted that beginning in the middle of July 1979, because
his union employees were supposed to be working only parttime
on alternate days, he could not ship his coal out of the
mine every day of the week as he desired. As a result, he
found it economically necessary to stockpile the coal inside
the mine for short periods of time. It was therefore a company policy to keep coal accumulated at least for that 1-day
period or until such time as the coal could be shipped out.
So I find that clearly the operator not only knew that this
accumulation was present but in fact actively condoned maintaining such accumulations. As further evidence of the
operator's negligence in this case, I note that Jackson admittedly had two "accumulations" in the mine and that although
he had two scoops available, he used only one for cleanup
while he continued to use the other for production.
Now, the condition did present a hazard and this testimony, again, is essentially uncontradicted that combustible
materials such as this could be ignited and could cause fire
or an explosion not only in the immediate section but the
entire mine and there were potential, if not then existing,

372a
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sources of ignition not far away. Burnett testified that
there were electrical cables in an adjacent entry some 60 to
70 feet away, that there was a battery-operated scoop operating as close as 20 feet to the accumulation, and that there
was a supply station some 40 or 50 feet from the accumulation
in which timber, oil, and other combustible materials were
stored. Explosives were also stored in the mine. Of course,
the seven or eight men who were working in the mine at that
time could be killed by any resulting explosion or fire.
The degree of hazard is somewhat reduced by the fact that
no defects were found in the cables and no permissibility violations were found on the equipment. Moreover, this mine has
no history of methane problems and on the date of the inspection no methane was detected. I have taken these factors into
consideration.
Now, with respect to the demonstrated good faith of the
operator in attempting to achieve rapid compliance after
notification of the violation, the testimony is that indeed
the condition which was cited at 10:15 a.m. was abated by
9 o'clock the next day. The foreman stopped all production
in the mine and had two scoops immediately clean up the
accumulation. However, as Inspector Burnett points out the
operator really had no choice but to clean up the condition
because he would not otherwise have been permitted to continue mining.
Order No. 696007 charges that roof-bolt test holes had
not been drilled at 15-foot intervals, beginning approximately 80 feet inby Survey Station No. 2506 located in the
No. 4 entry on the 001 section, and extending inby to the
working faces of the Nos. 4 through 1 entries and connecting
crosscuts for a distance of approximately 300 feet.
The cited standard, 30 C.F.R. § 75.200, deals essentially
with the requirements for filing and having an approved roofcontrol plan in effect. However, that standard has been
interpreted by the former Interior Board of Mine Operations
Appeals and various administrative law judges in the Mine
Safety and Health Review Commission, including myself, to
require also that the operator comply with his roof-control
plan. That is the interpretation I shall follow here.
Now, that part of the roof-control plan cited here
appears on Page 7, Item 9 of Exhibit D, and states as follows:
In each active working place where roof bolts
are installed during a production shift at least

3724

one roof bolt hole shall be drilled to the depth of
at least twelve inches above the anchorage horizon
of the bolts being used to determine the nature of
the strata. Such test holes shall be drilled at
intervals not to exceed fifteen feet, and the test
holes shall either be left open for examination or
a bolt length equal to or greater than the required
test hole depth may be installed and tightened.
Inspector Burnett, again without contradiction, testified that indeed the condition that was cited did in fact
exist. The violation is therefore proven. Burnett conser-vatively estimated that even assuming the best of mining
conditions it would take approximately 4 or 5 days with one
shift operating to progress 300 feet in a mine such as the
Little Egypt Mine. Since the test holes had not been driven
over that distance it is apparent that the cited condition
had existed for at least 4 or 5 days. The fact that the condition existed for such a long period of time indicates that
the operator was also negligent. This violation should have
been detected in the course of the preshift and onshif t examinations over this 4- or 5-day period. I also consider in
terms of negligence the fact that this mine had indeed been
cited before (and this is conceded by Mr. Jackson here today)
for violations of the same nature.
Now, I can sympathize to some extent with the operator's
problem. I take into consideration that his roof-bolting
machine operator was negligent in failing to perform a duty
that he had been instructed to perform and in fact had been
previously reprimanded for failing to perform in the past.
However, that does not exonerate the foreman and the mine
operator from liability for this type of violation. Indeed,
if this same violation had occurred in the past, the operator
had perhaps an increased duty to see that the same violation
did not occur again.

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The hazard in this situation was serious because the
test holes are used to evaluate roof conditions and if indeed
the roof-bolting machine operator is not performing these
tests, the roof bolts that he is implanting could be of no use
at all because defects may very well exist in the strata just
beyond the reach of his bolts. Of course, the danger present
here is from roof falls causing death or serious injuries
to anyone working on that section.
I note that this condition was abated within the time
allotted but, again, I observe the operator really had no
choice if he wanted to continue mining.

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I find also that the violation in Order No. 696003 has
been proven as charged. The order states as follows:
"The No. 4 entry has been driven from twenty-four to twentyeight feet wide, beginning ninety feet in-by Survey Station
No. 3506, located in the No. 4 entry and extending inby for
a distance of approximately thirty-three feet on the 001
section." The inspector commented that this had become a
common practice at this mine and indicated that the approved
roof-control plan permits a maximum width of 20 feet.
Now, again, the standard cited here is 30 C.F.R. § 75.200
which is the standard relating to the requirement for the filing of and approval of a roof-control plan. The roof-control
plan in effect here required, in relevant part, on Page 4 that
the entry width and the crosscut width shall be 20 feet.
The testimony is undisputed that the widths in the No. 4
entry were precisely as charged, that is, from 24 to 28 feet.
The measurements were precisely made, again, with a 50-foot
tape with the assistance of Inspector Ball. The hazard from
this overwide entry is, of course, from a weakened roof
resulting in possibly fatal roof falls. The condition was
abated within the time specified for abatement by adding
timbers to bring the width to within the 20 feet specified
in the roof-control plan.
Now, certain criteria under section llO(i) are appropriate to consider across the board, and are common to all of
the orders and the citation at issue. One of those criteria
is the size of the operator. The operator here is small
having only 10,704 production tons per year. With respect
to a history of previous violations, the printout admitted
as Government Exhibit F does not provide sufficient detail
for me to really determine the ·specific nature of the previous violations. I am, of course, considering only those
violations in which a penalty has actually been paid since
those are the only ones that have become final as of this
date. It appears, however, that the operator does not have
a significant history of violations.
Now, considering what effect penalties might have on the
operator's ability to continue in business, I note that
Mr. Jackson has testified that even the penalties proposed by
the Department of Labor would have such an effect. However,
Mr. Jackson has been given the opportunity to obtain and to
present documentary evidence to support his testimony here
but has chosen not to. Apparently, that evidence is not in a
form in which it could be readily presented to the court, but
since nothing has been presented, I cannot give great weight
to the unsupported testimony. If, indeed Jackson could reach

3726

the conclusions he reached here today, it must have been
based upon·some records.
All right, considering all of these factors, I feel that
the following penalties are appropriate for the violations
that I have found:
With respect to Citation No. 696006, a penalty of $400.
With respect to Order No. 696007, a penalty of $250.
And with respect to Order No. 696008, a penalty of $300.
ORDER
The Little Egypt Coal Company is ORDERED t
30 days of this order.

pay a penalty of $950 within

\_ ·.

Distribution:
Catherine M. Oliver, Esq., Office
of Labor, 3535 Market Street, Ro
(Certified Mail)

or, U.S. Department
adelphia, PA 19104

Harold Jackson, Litt~e Egypt Coal Company, P.O. Box 187, Grundy, VA
24614 (Certified Mail)

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3727
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 1 8 1980
Complaint of Discharge

DALE A. EAGLE,
Complainant

v.

Docket No. WEVA 80-487-D

- SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine

DECISION
Appearances:

P. Lee Clay, Esq., Fairmont, West Virginia, for
Complainant;
D. Michael Miller, Esq., J. Statler Beachler, Esq.,
Columbus, Ohio, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Dale A. Eagle under section
105(c)(3) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801
et seq., the "Act"), alleging an unlawful discharge of him by the Southern Ohio
Coal Company (Southern). A hearing was held on October 28 and 29, 1980, in
Morgantown, West Virginia, at which both parties, represented by counsel,
appeared and presented evidence.
The issue in this case is whether Mr. Eagle was unlawfully discharged by
Southern in violation of section 105(c)(l) of the Act because of his alleged
safety-related activities at Southern's Martinka No. 1 Mine. Section
105(c)(l) reads in part as follows:
No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the exercise of the statutory rights of any miner * * * because such
miner * * * has filed or made a complaint under or relating
to this Act, including a complaint notifying the operator or
the operator's agent, or the representative of miners * * *
of an alleged danger or safety or health violation * * *, or
because such miner * * * is the subject of medical evaluations
and potential transfer under a standard published pursuant to
section 101 or because such miner * * * has instituted or
caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any such

3728

~-------------------~~
proceeding, or because of the exercise by such miner * * * on
behalf of himself or others of any statutory right afforded
this Act.
Before hearing, Southern moved to dismiss the complaint on the grounds
that, inter alia, Eagle as a nonunion management employee was not a "miner" _
within~scope of section 105(c)(l) of the Act and that he was not therefore entitled to the protections afforded therein. The short answer to this
contention is, however, found in the Act itself in which the term "miner" is
unambiguously defined as any individual working in a coal or other mine. See
section 3(g) of the Act. Nonunion management personnel working in a coal
mine are therefore "miners" for purposes of section 105(c)(l) and are
accordingly entitled to the protections afforded therein.

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Southern also alleged in its motion that Eagle's complaint did not state
facts sufficient to bring the claim within the ambit of activities protected
by section 105(c)(l). Eagle maintains that his claim of unlawful discharge
is grounded upon his exercise of a statutory right afforded under the law of
West Virginia. Since the provisions of section 105(c)(l) do in fact limit the
protected rights of miners to only those statutory rights recognized by the
Federal law it is clear that a right found only in State law and not recognized by the Federal law does not give rise to a valid claim under section
105(c)(l). Whether or not the alleged right is protected by the law of any
State is therefore immaterial. The test is whether that right which may or
may not also be recognized by State law is one protected by the Federal mine
safety law.

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The complaint here, as clarified at hearing, appears to be that foreman
Dale Eagle was fired because he made the decision to take his men off
production-type work to correct what is claimed to have been an imminently
dangerous safety defect in the mine ventilation system. I conclude that such
activity would indeed be protected under the Act. In the case of Secretary
(o.b.o. David Pasula) v. Consolidation Coal Company, 2 FMSHRC
(October 14, 1980), the Federal Mine Safety and Health Review Commission
found that the refusal of a miner to work in unsafe or unhealthful working
conditions was a protected activity within the purview of the Act. I find
that a decision to correct a serious safety or health hazard rather than to
perform production-type work is the essential equivalent of refusing to work
}n unsafe conditions. The motion to dismiss filed herein is therefore denied.
For the reasons that follow, however, I conclude that on the facts of
this case the allegations in the complaint cannot be supported. Even assuming, arguendo, that the hazard alleged by Eagle was an imminently dangerous
one requiring immediate corrective action (which in reality it was not) it
is clear that the decision by Clark Morris, general foreman for the Martinka
No. 1 Mine, to discharge Eagle was made without knowledge of any such alleged
hazard and without knowledge of the alleged protected activity but was based
upon grounds completely independent of any protected activity.
The essential facts are as follows. On March 3, 1980, Complainant Eagle
was foreman of a six-man work crew on the 8:00 to 4:00 day shift. His crew

372a

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and a crew under foreman Harold "Dick" Barr were working together that day
setting up the steel framework for a new conveyor belt. The crews would
begin about 100 feet apart and work toward each other in completing a
particular section. At the beginning of the shift, project supervisor
Chuck Sponsler had warned Eagle and Barr to be sure they kept their men
busy that day because they were expecting a visit from mine officials.
According to Eagle, at around 2:40 p.m., he saw several of the mine
officials including Mine Foreman Morris. Morris wanted to know the identity
of some miners who were standing idle at the nearby power center. Eagle
agreed to check on the problem but claimed they were not his men. Eagle
later learned that he was discharged by Morris at the end of the shift
around 4:00 p.m. when he was filling out his time sheets. Eagle concedes
that he did not know whether Morris was aware that he had assigned his men
to the alleged safety work (repairing the return air doors) before he was
discharged.
Morris testified that he entered the mine at around 2:00 p.m. accompanied
by Mine Superintendent Tompkins and several other officials. Arriving at
the power center, he heard men laughing and talking loudly and saw that the
dinner hole was full of men. One of the men told Morris that they had progressed to the water hole (a pool of water through which the belt line would
have to pass) and then "knocked off" for the day. 1/ Morris recognized later
that several of this group of 10 or 11 men at the dinner hole were from Eagle's
work crew. Some of the men were even dressed to leave for the day although
it was an hour before quitting time. Morris located Eagle and Barr and told
them to find some work for the men. Morris had previously warned Eagle and
Barr about stopping work before the end of the shift.
Horris later returned at around 3:15 to see if the men wer.e working.
As he passed through the "16-switch" ventilation doors he saw several of the
miners without tools sitting in the mantrip and two standing beside it ready
to leave for the day. Outraged, Morris at this point decided to fire Eagle
and Barr and told Tompkins of this decision. When Eagle and Barr later
came outside at the end of the shift, he told them they were fired. Morris
testified that he did not know of any plans Eagle may have had to work on
the ventilation doors until he was told of this allegation by Sponsler.
By that time the decision to release the men had already been made.
Sponsler, the project supervisor, testified that around 3:00 p.m.
he too saw a group of what he thought was about eight to 10 men at the dinner
hole. Barr and Eagle were then about 200 feet away. When asked about the
idle men, Eagle told him "I don't want to hear no shit, I am going to have
1/ According to one of the miners called by Eagle to testify, no one
wanted to work in this water hole so it was decided to leave that work
for the night shift. Eagle was quoted as saying "We can't quit now, you
might as well go fix some doors * * * it's too early to quit". These do
not sound like the words of a man intent on correcting an imminent danger.

3730

some men fix the doors." Sponsler did not have occasion to tell Morris of
the purported project until later. Morris by that time had already made up
his.mind to fire Barr and Eagle for their repeated failure to keep the men
working.
James Tompkins, superintendent of the Martinka Mine, accompanied
Morris that afternoon. He too heard the laughter and noise around the
power center and observed some 10 to 11 idle men in that area. He also
recalled that they· later found four or five men in the vicinity of the
"16-switch" doors just sitting in the "bus" (mantrip) laughing.· It was
about this time that Morris told Tompkins that Barr and Eagle would have
to go. ~ompkins agreed with the decision.
Although Barr thought that he had told Morris when confronted by him in
the mine that the idle men were preparing to fix ventilation doors, he was
not certain of this. I do not believe that this was an accurate recollection .
inasmuch as Morris specifically denied having this information before making
his decision to fire the men, and the testimony of Tompkins, Sponsler and indeed
even Dale Eagle himself corroborates Morris on this point. Barr concluded,
moreover, that he and Eagle were fired not because of any artticipated safety
work but because Morris indeed found their men at a time when they were not
actually working.
Under the circumstances, I conclude that Mine Foreman Morris made the
decision to discharge Barr and Eagle for reasons unprotected by the Act
and that indeed he made the decision without any knowledge of Eagle's
alleged protected activity, i.e., his anticipated repair work on ventilation
doors. 2/ The discharge was-therefore not motivated in any part by the
alleged-protected activity. Fasula, supra. Eagle' complaint cannot therefore be supported and is accordingly dismissed.

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2/ The decision of a trial examiner for
West
of
Employment Security that Eagle was not discharged f r miscdnduct and was
thus eligible for unemployment insurance benefits is no..t--r<ecessarily
inconsistent with my findings herein but would not in any event have been
accorded great weight. That determination has been appealed by Southern
and has therefore not become final. Moreover, Southern was not represented
by counsel at the hearing, the hearing commenced without the presence
of any company representative, and several key witnesses for the company,
including Morris, were not present. The record before the examiner was,
as a result, woefully inadequate. Since the Complainant has also failed
to submit the rules and regulations governing such proceedings as he was
directed to do, I am unable to ascertain the standards applicable thereto.
The fact that Eagle claimed at that hearing that he was discharged because
of a personality conflict with Morris and not for the reasons now advanced
does, however, reflect on the credibility of his complaint herein.

3731

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Distribution:
P. Mail)
Lee Clay, Esq., 414 Deveny Building, Fairmont, WV 26554 (Certified
D. Michael Miller, and J. Statler Beachler, Alexander, Ebinger, Fisher,
McAlister & Lawrence, 17 South High Street, Columbus, OH 43215
(Certified Mail)

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3732

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

DEC 2 2 1980

Civil Penalty Proceeding

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

Docket No. YORK 79-49-M
A/O No. 19-00019-05001

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v.
Wrentham Quarry & Mill
S. M. LORUSSO & SONS, INC.,
Respondent
DECISION

I

Appearances:

David Baskin, Esq., Office of the Solicitor, U.S. Department
of Labor, Boston, Massachusetts, for Petitioner, MSHA;
Kenneth Arthur, S. M. Lorusso & Sons, Inc., Walpole,
Massachusetts, for Respondent, S. M. Lorusso & Sons, Inc.

Before:

Judge Merlin

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The above-captioned case is a petition for the assessment of civil penalties filed by MSHA against S. M. Lorusso & Sons, Inc.
The Solicitor had filed a motion for settlement which I disapproved on
August 12, 1980. As I stated at the hearing, the Solicitor's motion set
forth some reasons to support a settlement but, in my opinion, they were
not adequate. However, at the hearing, the Solicitor furnished additional
reasons and detailed explanations which did warrant approval of his recommendations. The approved settlements are as follows:
Citation No. 217543 was issued when the plant manager was observed not
wearing protective footwear. The original assessment was $44; the recommended
settlement was $10. In support of the reduction, the Solicitor advised that
there was no negligence on respondent's part with respect to this violation.
The operator purchases protective footwear for its employees and instructs
them to wear it. This employee had simply disobeyed company rules. I
accepted the Solicitor's representations and approved the settlement.
Citation No. 217545 was issued when the plant manager was observed not
wearing protective headwear. The original assessment was $44; the recommended
settlement was $10. The Solicitor gave the same reasons in support of the
reduction as were given for Citation No. 217543. I accepted the Solicito1' s
representations and approved the settlement •

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Citation No. 217546 was issued when a gliard on a conveyor belt drive that
had been removed for servicing was not reinstalled prior to restarting the
belt drive. The original assessment was $60; the recommended settlement was
$50. In support of the reduction, the Solicitor advised that this is a small
operator and that this was the first inspection after the plant had started
up operations for the season. In light of the small amount of the proposed
reduction, I approved the recommended settlement.
Citation No. 217547 was issued when a railing surrounding the primary
crusher was found not to have been put in place prior to starting up the
crusher. The original assessment was $66; the recommended settlement was
$50. In support of the reduction, the Solicitor advised that it was company
prastice to instruct employees not to remove these railings, and that if
they had to be removed, they must be replaced. An employee simply had not
replaced the railing. I accepted the Solicitor's representations and
approved the settlement.
Citation No. 217548 was issued when two electric drop cords were found
being used without ground connectors. The original assessment was $38; the
recommended settlement was $20. In support of the reduction, the Solicitor
advised that there was a very low probability of occurrence. The small size
of the company and the small history of prior violations was also noted. In
light of these factors, I approved the rec.ommended settlement.
Citation No. 217551 was issued when a shaker screen guard which had been
removed for servicing was not replaced. The original assessment was $60; the
recommended settlement was $40. In support of his motion, the Solicitor cited
the same factors which supported the settlement for Citation No. 217546 and
further advised that there was only an extremely remote likelihood that a
person would come in contact with the dangerous parts of the machinery. I
accepted the Solicitor's representations and approved the settlement.
Citation No. 217552 was issued when a guard on a conveyor belt head
pulley which had been removed for servicing was not reinstalled.prior to
starting up the machine. The· original assessment was $60; the recommended
settlement was $50. In support of the reduction, the Solicitor cited the
same factors which warranted the reduction for Citation No. 217546. The
Solicitor further advised that there was a very low probability of any
injury occurring and that the operator's negligence was very low, given
the fact that the plant was beginning to start up for the new season. In
light of the foregoing factors and the fact that this was not a particularly
large reduction, I approved the settlement.
Citation No. 217555 was issued when it was observed that the traffic
rules pertaining to speed limits on the haulage road were not posted. The
original assessment was $52; the recommended settlement was $20. In support
of the reduction, the Solicitor advised that both negligence and gravity
were less than were originally thought since the rules had been posted but
they were either destroyed or taken down because of the winter weather. The
Solicitor further advised that the drivers are aware of the speed limits,

3734

and the rules are posted in the company office.
representations and approved the settlement.

I accepted the Solicitor's

I recognized that the original assessments for these citations were not
large. However, at the hearing the Solicitor did advise that this operator
is small in size and had a very small history of prior violations. In light
of these factors, the reconnnended reductions are appropriate.
ORDER
The rulings issued from the bench on November 24, 1980, are hereby
AFFIRMED.
The operator is ORDERED to pay $250 within 30 days from the date of
this decision.

Assistant Chief Administrative Law Judge
Distribution:
David L. Baskin, Esq., Office of the Solicitor, U.S. Department of
Labor, JFK Federal Bldg., Boston, MA 02203 (Certified Mail)
Kenneth G. Arthur, Controller, S. M. Lorusso & Sons, Inc., 331 West
Street, Walpole, MA 02081 (Certified Mail)

3735

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

DEC 2 4 1980
)

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

)
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Petitioner,

)

v.

CIVIL PENALTY PROCEEDING

)
DOCKET NO. WEST 79-195-M

)

ARIZONA CRUSHING COMPANY,

)
)

A/O NO. 02-01642-05001

)

MINE:

PORTABLE CRUSHER

)

Respondent.

)
)

DECISION
APPEARANCES:
Sandra Rogers, Esq., Office of Daniel Teehan, Regional Solicitor,
United States Department of Labor, San Francisco, California
for Petitioner
Peter J. Ranke, Comptroller, appearing pro se, Phoenix, Arizona
for the Respondent.
Before:

Judge John J. Morris

Petitioner, the Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges that respondent, ARIZONA CRUSHING,
failed to guard its conveyor equipment, thereby exposing its employees to
hazardous pinch points. MSHA asserts ARIZONA CRUSHING thereby violated 30
CFR 56.14-1, 1 a regulation promulgated under the authority of the Federal
Mine Health and Safety Act (amended 1977), 30 U.S.C. § 801 ~seq.

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The cited standard provides as follows:
GUARDS
56.14-1 MANDATORY. Gears; sprockets; chains; drive, head,
tail, and takeup pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may cause
injury to persons, shall be guarded.

3736

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ISSUES
The issues are whether MSHA has jurisdiction and whether the violations
occurred.
CONTENTIONS
ARIZONA CRUSHING contends that Congress did not intend· to include sand
and gravel operations in the scope of the Act. I disagree. The legislative
history indicates otherwise. In reviewing the safety record for metal and
nonmetal mining, the United States House of Representatives included data on
the number of fatalities occurring in open pit, sand and gravel mines, stone
quarr~es, and mills.
House Report No. 95-312, 95th Cong. 1st Sess. 6
(1977). Congress also directed that any doubts over the extent of MSHA's
jurisdiction are to be resolved in favor of inclusion within the Act.
Senate Report No. 95-181 95th Cong. 1st Sess. 14 (1977).

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The determination that sand and gravel pits are under the jurisdiction
of the Act has been upheld in recent decisions. Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589 (3rd Cir. 1979), Cert. denied, 444 U. S. 1015
(1980); Marshall v. Cedar Lake Sand and Gravel Co. 480 F. Supp. 171 (E. D.
Wisc. 1979); Marshall v. Wallach Concrete Products, Inc., et al, Docket No.
79-422
F. Supp.
(D.C. N.M. 1980).
PENDING LEGISLATION
ARIZONA CRUSHING asserts there is legislation pending in the United
States Congress that would remove MSHA's jurisdiction over sand and gravel
operations.
As of the date of this decision no legislation has been passed that
would affect MSHA's jurisdiction. Accordingly, such argument is overruled.
FINDINGS OF FACT
Citation 379481

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1. The return roller of the primary feed conveyor was unguarded (Tr.
10 - 12, P-1).

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2. The three foot long pinch points were 5 to 5 1/2 feet above the
ground (Tr. 12, P-1).

3. When the conveyer was operating the cleanup man or workers
observing the plant would be in close proximity to the hazardous pinch point
(Tr. 12 - 15).

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CITATION 379482

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4. The pinch points of the warp drive on the primary feed conveyer
were guarded at the front but not at the sides (Tr. 16 - 18, P3, P4, PS).

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Workers could come between the guard and the motor within six
inches of the pinch points during maintenance and cleaning operations (Tr.
23).
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3737

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CITAT.ION 379484
At the conunencement of the trial petitioner moved to vacate this
citation for the alleged violation of 30 C.F.R. 56.14-1 (Tr. 5).
The motion to vacate was granted at trial and is formalized in this
decision.
CITATION 379485
6. The west side of the V belt on the primary feed conveyer was
guarded but there was an exposed pinch point between the guard and the motor
'-Tr. 23, P6).
7. Workers had access to this area and could come in contact with the
V belt drive (Tr. 23).
CITATION 379486

B.

The El Jay rock belt tail pulley was unguarded (Tr. 25 - 29, PB).

9. A portion of the tail pulley was guarded but there were unguarded
pinch points at the bottom of the frame (Tr. 26 - 27).
10. Workers by using a walkway or path could come within a few inches
of the pinch points (Tr. 28, PB).
ALL CITATIONS
11. Before the inspection ARIZONA CRUSHING had removed its conveyer
equipment because a large amount of water was being released into the
riverbed.
12. The inspection occurred as ARIZONA CRUSHING was reassembling its
equipment.
13. The guards had not yet been reinstall~d and the equipment was
being tested.
ARIZONA CRUSHING asserts it should not be cited because its workers
were not crushing rock but were merely reassembling the equipment. I find
the· facts supporting ARIZONA CRUSHING' s view but I do not concur that such
facts establish a defense. It is undisputed that the equipment was running
and being tested (Tr. 76). In various ways the workers were exposed to the
hazards prohibited by the standard. (Findings of Fact, paragraphs 3, 5, 7,
10).
To synthesize this decision: pinch points must be guarded whenever the
workers, in the normal course of their duties, are in close proximity to the
hazards.

3738

CIVIL PENALTIES
ARIZONA CRUSHING asserts that the negligence assessed for Citation
379485 is unduly high. I disagree, the condition is obvious and the
photograph of the condition ;ndicates ready exposure to the pinch point
(P6).

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However, in connection with the civil penalties, MSHA's proposed
assessment does not credit ARIZONA CRUSHING for its immediate abatement of
the conditions. Further, it is company policy to immediately comply with
all MSHA directives. In view of the above factors and in consideration of
the remaining statutory criteria, 2 I conclude that the proposed civil
penalties should be reduced as set forth in the order of this decision.
ORDER

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Based on the foregoing findings of fact, conclusions of law, and motion
I enter the following order:
1.

Citation 379481 is affirmed and a penalty of $14.00 l.S assessed.

2.

Citation 379482 is affirmed and a penalty of $14.00 is assessed.

3.

Citation 379484 and all penalties therefor are vacated.

4.

Citation 379485 is affirmed and a penalty of $17.00 is assessed.

5.

Citation 379486 is affirmed and a penalty of $18 is assessed.

Law Judge

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30 USC 820(i)
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Distribution:
Sandra K. Rogers, Esq., Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102
Mr. Peter J. Ranke, Comtroller
Arizona Crushing Company
P. 0. Box 3184
Tempe, Arizona 85281

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

DEC 3 O 1900

Phone (703) 756-6236
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. PENN 80-277
A/O No. 36~00963-03096V
Mathies Mine

MATHIES COAL COMPANY,
Respondent
MATHIES COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Contest of Order
Docket No. PENN 80-121-R
Order No. 836843; 12/13/79
Mathies Mine

DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner-Respondent;
William H. Dickey, Jr., Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for RespondentContestant.

Before:

Judge Charles C. Moore, Jr.

Mathies Coal Company was served with an order alleging a violation
of its roof control plan because it seemed obvious to the inspector that
the operator of the continuous miner in a particular cut had been
operating under unsupported roof. When the inspector first noticed the
unusually large unsupported area where Mathies had been constructing a
track shoot (for its rail car haulage system) his eyeball measurement
indicated to him that the depth of the cut was greater than the distance
from the front of the continuous mining machine to the operator's controls
on that machine. He then had the area supported and took measurements.
One of his measurements showed it was 28 feet from the deepest cut to
the nearest roof bolt. Since it was only some 22 feet 7 inches from the
front of the continuous miner to the operator's controls, he assumed
there had been a violation because the operator of necessity had been
under unsupported roof.

3740

2

After the issuance of the citation the representatives of Mathies
were somewhat perplexed by the measurements but rather than accept the
fact of violation they brought the continuous miner back into the track
shoot area and found that they could not position the miner 'in the track
shoot in such a way that the operator would be under unsupported roof.
One of their discoveries was that it was 28 feet from the far left-hand
corner of the cutting blade to the miner's controls which were located
on the right rear of the machine.
At the hearing Mathies produced scale drawings of the track shoot
showing the last line of roof bolts and a scale model of the continuous
miner. --rhe miner would not fit in the track shoot in any area in any
way which would expose the operator of the machine to unsupported roof.
Furthermore, Mathies produced the continuous miner operator who cut the
track shoot in question, and he testified as to how he cut this track
shoot and that at no time was he under unsupported roof.
While I can sympathize with the inspector's action, it is nevertheless true and I find it as a fact that no violation of the roof
control plan or of 30 C.F.R. §75.200 occurred in this track shoot. The
order is accordingly vacated and these cases are dismissed.

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Charles C. Moore, Jr.
Administrative Law Judge

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

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William H. Dickey, Jr., Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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

DEC 3 0 1980

Civil Penalty Proceedings

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

Docket No. NORT 78-387-P
A.c. No. 44-04251-02008V

v.
Docket No. NORT 78-388-P
A.c. No. 44-04251-02009V

CLINCHFIELD COAL COMPANY,
Respondent

McClure No. 1 Mine
DECISION
Appearances:

~lichael

Before:

Judge William Fauver

Bolden, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Gary W. Callahan, Esq., f.or Respondent.

These proceedings were brought by the Secretary of Labor under section
109(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§ 801 et~·· for assessment of civil penalties for alleged violations of
mandatory safety standards in October and November, 1977. The case was
heard at Falls Church, Virginia. Both parties were represented by counsel.
The Secretary of Labor has submitted his proposed findings, conclusions,
and brief for Docket No. NORT 78-387-P, following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent, Clinchfield Coal Company,
operated a coal mine, known as the McClure No. 1 Mine, in Dickenson County,
Virginia, which produced coal for sales in or substantially affecting interstate commerce.
2. Thyssen Mining Construction, Inc. (Thyssen), was an independent
contractor engaged by Respondent to sink a return shaft at the McClure No. 1
Mine. In forming the shaft, Thyssen used a three-stage, circular work deck,
which was suspended from the surface by four wire ropes in two parts. The

3742

work deck had a diameter of 18 feet, 4-1/2 inches and weighed about
17,500 pounds empty and about 20,000 pounds fully loaded with men and
materials. Through the center of the work deck was a bucket well about
5 feet in diameter that permitted a bucket (man hoist) to pass through all
three stages and descend to the bottom of the shaft. The shaft was 237 feet
deep and had a diameter of 20 feet. The concrete formwork for the shaft
was 5 inches thick. Attached to the outside of the work deck and extending
about 7 feet above the top stage and about 7 feet below the bottom stage
were several anti-tilt riggers, which were designed to wedge against the
shaft wall to limit tilting of the deck. The height of the work deck with
the tilt-control riggers was 22 feet, 3 inches.
3. Around the outside perimeters of the work deck and the bucket well
were separate post-and-chain barricades to prevent persons from falling over
the edge of the deck or through the bucket well. The two barricades were
circular and each consisted of two chains attached to posts. The top chain
was about waist-high and the other one was about knee-high. The outermost
barricade was about 6 inches inside the edge of the platform. Also, around
the outside and inside edges of the deck were 6-inch kickplates to prevent
people from slipping over the edge. The men wore cleated rubber boots and
the deck had an anti-skid surface.

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4. The workers were not required to and generally did not wear safety
belts while working on the deck; however, some of the men did wear safety
belts while the deck was moving. If the deck tilted, there was nothing to
prevent a man from falling to the deck floor and, besides the two chain
barricades, there was nothing to prevent an employee from falling against
the shaft wall, from becoming caught between the shaft wall and the deck,
or from falling through the bucket well.

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5. There has never been an accident involving an employee falling
against the shaft wall or lodging an arm or hand between the platform and
the wall or falling through the bucket well.
6. The work deck was powered by four Hoyle winches, which served as
spools for the wire ropes. Each winch, which was controlled by the hoist
operator from the hoist room, was a drum about 16 inches in diameter with
two flanges and was powered by a 15-horsepower motor with a capacity of
10,000 pounds. The No. 1 and No. 4 winches were mounted over the shaft
opening on the collar coverings and the No. 2 and No. 3 winches were
mounted on a concrete pad directly in front of the hoist room.
7. The motors that drove the winches produced a maximum line speed of
about 45 feet per minute; however, with the wire rope in two parts, the
speed was halved to about 22-1/2 feet per minute.
8. Each wire rope was five-eighths inch and had a breaking strength of
34,000 pounds. With the ropes in two parts, the load supported by each part
was 2,500 pounds. Each rope contained seven strands of wire, each of which
consisted of 19 smaller wires. The ropes were anchored underneath the

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collar of the shaft to one of the collar beams and extended down to the work
deck under a sheave wheel and back to the winch drum. The sheave wheels
were welded and bolted to the work deck.
9. Title 30 of the Code of Federal Regulations, Part 77, incorporates
the minimtnn safety factors for hoisting ropes established by the American
National Standards Institute (ANSI). The ANSI safety factor of a hoisting
rope was the factor by which the breaking strength of the rope exceeded
the suspended load, related to the depth of the shaft. The recommended
safety factor of a shaft 500 feet or less was 8. Under the ANSI system of
detennining the .safety factor of hoisting ropes, any three of the· four ropes
on the subject work deck would combine to produce a safety factor of 10.44.
The four ropes had a safety factor of 13.92.
10. Each of the four winches was equipped with an electric shoe-type
brake made ~rom an asbestos fiber. Each brake was spring-activated. Before
a brake would release, the motor would have to assume 40 percent of its normal load and the brake would not begin to apply until power decreased to
10 percent of the normal load. Thus, at all times, either the motor would
be applying power or the brakes would be activated.
11. When power was applied 'to the winch motors, the brakes automatically released so that the platform could move; when power was turned off,
the brakes applied automatically. If the power source to the winch motors
failed, the brakes were designed to activate automatically by spring action.
12. Each winch drUr.J. had a slot to receive a safety pin, also known
as a safety "dog." The purpose of this pin was tel prevent the drtnn from
freewheeling if the brake failed while the deck was in a stationary position. The safety pin was a strip of metal, about 12 inches long, 2 inches
wide, that inserted into the frame of the winch drum. The pin would stop
the drum when the pin came into contact with a metal lug attached to the
outer part of the drum. The metal lugs were 1-inch square and spaced 90
degrees apart so that, when a safety pin was inserted, the winch would
rotate a maximum of 90 degrees before stopping at the next lug.
13. An employee on the surface, known as the topman, manually inserted
the four safety pins upon instruction from the hoist operator. The operator
maintained telephone contact with the workers on the deck because he was
unable to see the winches from the hoist room. A bell signal notified the
topman that the pins were ready to be inserted. It took 3 to 4 minutes to
insert all four pins. There has been no case of failure of a safety pin.
14. The hoist operator tried to operate the four winches simultaneously so that the deck would be level; however, the deck often tilted
because the winch motors operated at slightly different speeds and the
stretching characteristics of the ropes were not uniform. Before the work
deck reached a new resting position, the operator would make several adjustments to level the deck. Wnen the deck was finally stopped the safety pins

3744

would be inserted and power would be released so that the winches Would
roll back against the pins. One or two of the ropes might become slack when
the winches rolled back. Before the deck was moved again, the pins would
be removed and the hoist operator would try to level the deck by aajusting
the winches one at a time. Three winches were capable of leveling the work
deck.
15. If the air was damp, the shoes would absorb moisture and swell.
During the 2 or 3 days prior to October 27, 1977, there were heavy rains
that caused the brakes to drag and made lowering and raising the deck
difficult. On October 27, the weather was drier and the brake shoes had
shrunk back to their normal size.

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The October Inspection
16. On October 27, 1977, federal mine inspector William H. Hulvey
inspected the No. 2 shaft at Respondent's McClure No. 1 Mine. He arrived
at the hoist room about 8:15 a.m. to inspect the three-stage work deck.
He spoke briefly with the hoist operator and inspected the books.
17. The hoist operator was in the process of moving the work deck to a
new resting place in the shaft. The safety pins had been removed and the
fiveman crew, including the foreman, were on the work deck. A whole crew
was needed to move the work deck safely because there were three stages
and there were utility lines and other objects that might interfere with
the wire ropes. One of the workers below was communicating with the hoist
operator by telephone, instructing him to move the winches one at a time.
The operator told the ins'pector that he was moving the winches one at a
time because they were having difficulty leveling the deck. A work deck
might be difficult to keep level for a number of reasons,~·..&·, the brake
was not holding properly, the ropes were not spooling on the drtnns properly,
or the winches were not hoisting synchronously.
18. At about 9 a.m., the operator lowered the inspector to the work
deck. When he arrived the foreman said that they were trying to move the
deck but were unable to keep it level. While the inspector was on the
deck, the operator applied power to all four winches and the deck rose about
1 foot. After the power was turned off, the brakes applied and the inspector
noticed a slight displacement on one side of the deck and slackness in one
of the ropes. The inspector determined that the No. 3 winch rope was not
holding its designated load. He believed that if one of the brakes was not
supporting any weight, an added strain was placed on the other brakes. The
inspector told the foreman to withdraw the men until the problem was
diagnosed.

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19. The operator raised the work deck and then released power. The No. 3
brake should have applied; however, the brake did not inunediately hold the
winch and about 1 foot of rope spooled from the drum before holding. They
returned to the surface to inspect the No. 3 winch.
20. A mechanic then inspected the brake and found that it was out of
adjustment, that it was slipping, and that the shoes were not holding the
brake wheel.

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21. Inspector Hulvey issued Order of Withdrawal No. 1-mm (7-62) to
Respondent, reading in part:
The electrically operated magnetic brake (shoe type)
installed on the No. 3 electric work deck winch was not maintained in safe operating condition. The brake would not hold
the winch drum when power was disconnected to the winch drive
motor. This allowed the cable to become slack and not hold
its designated load. The No. 4 electric winch brake was the
only brake holding the side of the circular-3 level work deck.
Workmen were attempting to have the work deck hoisted up the
shaft.
The cited condition was abated by adjusting the brake.
there had been a similar problem with this brake.

Three days earlier,

22. The inspector considered the problem serious because he believed
that, if the work deck tilted and wedged
against the shaft, one of
the men could fall to the floor and injure himself or ·fall through the
bucket well. He also believed that if the No. 4 winch brake also malfunctioned, one side of the deck would tilt and the wires could become damaged
by contact with the· upper stage of the platform of the deck.
23. The inspector found that the condition should have been discovered
before his arrival. The shaft was required to be preshifted before the start
of each shift and the hoisting equipment was required to be checked daily.
However, the brakes would not be inspected unless the platform was going to
be moved. If the platform remained stationary for several days, the brakes
would not be examined before men descended to the work deck because the safet
pins would prevent the winches from freewheeling. On October 27, there had
been a preshift examination and the hoisting equipment was checked.
24. At about 7:30 a.m. on the date of the inspection, Ray Hobson,
the fire boss, had preshifted the shaft area, including the man hoist, the
winches and the hoist room. His inspection of the winch brakes did not
include removing the guards that surrounded the brakes. He descended the
shaft in the bucket and found only that a line needed extending at the
bottom of the shaft.
25. The hoisting equipment was also inspected that morning, at about
8 a.m., by the hoistman. The hoistman inspected the ropes to see that they
were in good operating condition, that there were no broken strands, and
that they were aligned in the sheaves and not overlayed on the drums.
26. Thyssen recorded inspections made on the man hoist in the hoist
inspection book. The man hoist was used to hoist men in and out of the
shaft. Examinations of the deck winches, concrete form winches and emergency hoist winches were also recorded. There was no record in the book of
an inspection of the Hoyle winches and the brakes.

3746

27.

Respondent's approved shaft-sinking plan provided in

part:
The braking systems employed on the Hoyle Winches which
are used to suspend the work deck, concrete forms, and the
emergency escape conveyance shall be visually examined and
tested on each shift by a qualified hoistman prior to allowing men to travel on the platforms or conveyances suspended;
or prior to hoisting loads where men may be endangered by the
hoisting operation. If such tests reveal that any part of a
braking system is not functioning properly, repairs shall be
made immediately. The results of such tests shall be recorded
in a book maintained for this purpose and shall b~ signed each
shi..ft by the hoistman making such inspections.
28. An electrical foreman periodically inspected the brake mechanisms
by pulling off the covers and disconnecting the solenoid to see that they
held with power on. Brake linings were also changed about every 2 to
3 weeks. There was no standard requiring the coverings to be removed when
the hoist was inspected. On September 21, 1977, a brake was installed on
the No. 3 winch.
29. There were two methods of checking the brakes. One involved the
hoist operator applying power and moving the winches slightly and then shutting the power off to activate the brakes. If the brakes were out of alignment, a person on the deck would observe a slack cable when the brakes were
applied. A slack cable on the No. 2 or No. 3 winch could be observed at the
surface because they were mounted on the pad directly in front of the hoist
room; however, a slack cable on the No. 1 or No. 4 winch could be observed
only from the deck. Under normal circumstances, when the deck was being
moved there would be various tensions in each of the four ropes due to differences in the spooling characteristics and the winding of the ropes on
the four drums; however, each of the ropes would be taut.
30. The other method of checking the brakes, which was more complicated but more accurate, involved manipulating the solenoid system on each
brake. The electrical engineer would isolate the power from the ·circuit,
remove the covers to disconnect the wires serving the solenoid, insulate
those wires safely, replace the covers on the solenoid box and on the brake
box, and then reapply power to the circuit. The procedure then had to be
reversed to put the system back in working order.

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The November Inspection
31. On November 21, 1977, Inspector Hulvey, accompanied by another
inspector and the mine foreman, inspected the shaft and the three-stage circular work deck at the McClure No. 1 Mine. The deck was in a stationary
position. The workmen were on their lunch hour. Inspector Hulvey observed
that the No. 1 winch cable was completely slack at the work deck level. He
held the cable with his hand and was able to shake it. In the inspector's
opinion, the cable was not suspending its designated load. The only brake

3747

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holding that side of the deck was the No. 4 brake and the slippage of that
brake would allow the drum to turn until the safety pin engaged or until
the slack in the rope was taken up. The safety dogs were in the winches.
32. Inspector Hulvey also observed that an air hose was intertwined
with the cable. The air hose was hooked to an air pump, which was located
at the bottom of the shaft. The hose was lying on the work deck and was
intertwined with the two parts of the cable. He believed that whoever
placed the hose there should have observed the slack cable.
33. The hose was not interfering with the functi_on of the wire ropes
and there was no danger of the hose snapping unless the work deck was moved.
Jf the hose broke, there would be a sudden whipping action of the live end
of the hose. If it were only punctured, there would be a sudden air stream
which might strike somebody but pose no real danger unless it generated airborn dust or particles.
34. The inspector believed, initially, that the brake.was not holding
the load. When they reached the outside and put tension on the rope, they
found that the brake was working properly but that the rope had not been
properly tensioned.
35. On November 21, 1977, Inspector Hulvey issued an order of withdrawal to Respondent, reading in part:
One of two hoyle winches used to suspend the east side
of the three stage work deck in the shaft was not suspending
the designated load in that the winch cable of the No. 1 winch
was completely slack at the work deck. Pump hoses to a
diaphragm pump were intertwined with the cable.
36. He believed that thecondition was serious because an unexpected
displacement of the work deck would be hazardous to workers on the deck. At
the very least, they might lose their balance and fall to the surface of the
deck. He observed a tool box and a fire extinguisher on the top level. At
times, miscellaneous hand tools, drills and hoses would be lying on the
deck surface.
37. The cited condition was abated in about 30 minutes by applying
tension to the cable.
38. At 6:30 a.m. on November 21, a preshift examination had been conducted. No defects or infractions were found. At 11:15 a.m., an onshift
inspection disclosed that a whip check was missing from the airline shaft
bottom and that the pump needed a safety cable.
DISCUSSION WITH FURTHER FINDINGS
At the hearing, counsel for the Respondent orally moved to dismiss
the Secretary's petition for assessment of civil penalty in Docket No.
NORT 78-387, on the ground that the Secretary failed to introduce in

3748

evidence the underlying notice of violation. Respondent argues that the
existence of the underlying notice of violation must be established before
the validity of the subject section 104(c)(l) order of withdrawal can be
established. Respondent argues that without a "chain" established between
the notice and order, the Commission lacks jusisdiction to consider the
va1idity of the order.
The Secretary introduced in evidence the order of withdrawal that was
issued on October 27, 1977. The order of withdrawal reads in part: "The
violation was found during a subsequent inspection made within 90 days after
Notice No. 1 J. A. B. was issued on September 7, 1977, and is also caused by
an unwarrantable failure to comply with such standard." The Secretary did
not introduce in evidence Notice No. 1 J.A.B. However, I conclude that this
omissi~n was not fatal to the Secretary's case.
I find that the existence
of the underlying notice of violation was established when the subject order
of withdrawal was received in evidence without objection from Respondent.
The existence of the underlying notice of violation is indicated on
the
face of the or~er of withdrawal. I find that in the absence of
evidence that the underlying notice of violation was contested by Respondent
in a review proceeding, the validity of the notice is established for purposes of this proceeding.

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Based on the order of withdrawal issued on October 27, 1977, the
Secretary has charged Respondent with a violation of 30 C.F.R. § 77.404,
which rr0vides: "Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately." The basic issue as to
this charge is whether the brake on the No. 3 Hoyle winch malfunctioned
and whether the malfunction of the brake rendered the three-stage circular
work deck unsafe.

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The Secretary argues that a preponderance of the evidence establishes
that the brake on the No. 3 Hoyle winch malfunctioned, causing an added
strain on the other brakes and rendering the work deck operation unsafe.
The Secretary proposes a penalty of $4,000.
Respondent contends that the malfunction of one brake would not render
the work deck unsafe because the remaining brakes could handle the load.
Geoffrey Heston, Thyssen' s Director of Mining Services, testified that the
tilt resulting from the failure of one of the brakes would be so slight that
no one on the deck would be in danger of falling to the deck or falling
through the bucket well.
Using a scale model of the work deck and the shaft and his mathematical
calculations based on the weight and size of the deck, Weston testified that
the maximtml tilt of the deck would be 2.07 degrees and the maximum vertical
deflection would be 8 inches or a 4-percent gradient. Weston testified that
if the work deck descended below the concrete formwork while the shaft bottom
was being excavated, which was unusual, the degree of tilt would be greater.

3749

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Weston testified that a four-winch-operated work deck was designed
to operate safely with three ropes and that slackness in one of the ropes
after the deck was stopped and the winches were rolled back against the
safety pins was common. When the winches were backed off, slackness would
be produced in one of the ropes depending on the relative positions of
the safety pins when the winches were halted.
At the time of the inspection, the shift had already begun and the crew
was on the work deck. The safety pins had been removed and the hoist operator was trying to level the work deck before moving it up or down. It was
normal for the deck to become slightly unlevel with a four-winch hoisting
system and the operator's action in applying power to the four winches one
a time was an acceptable method of leveling the deck. However, a preponderance of the evidence establishes that the crew was having an unusually
difficult time leveling the deck. The inspector testified that the hoist
operator told him that they were having trouble keeping the deck level and
when the inspector arrived at the deck, the foreman also told him that they
were unable to keep the deck level.

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I find that, with the safety pins removed, the inability to level the
deck created a potential hazard to the crew and imposed a duty upon Respondent to inspect the brakes. A preshift examination and hoisting inspection
were conducted before the shift began and no brake defects were found. However, the most common method of testing the brakes, which involved activating
the hoist motor and then applying the brakes to see if the brakes held, was
done only after the five-man crew had descended to the deck. A proper
inspection before the men arrived at the work deck would have revealed a
problem with the brakes, requiring a more thorough inspection of the braking
system.
I find that the tilt observed by the inspector indicated a defect in
the braking system and that this defect presented a safety hazard. A sudden
displacement of the deck when the brakes were applied could cause an employee
to fall and injure himself either on an object lying on the deck's surface
or by wedging a leg or arm between the deck and the shaft wall. I find that
the tilt was not caused by the winches winding non-synchronously or by the
ropes spooling unevenly on the drums. A tilt while the deck was in motion
might result from one of these factors; however, I find that the displacement of the deck when the brakes were applied was caused by a defect in
the brakes, as Inspector Hulvey believed. It was a violation to keep men
on the deck and to try to operate it without first checking the brakes and
correcting any brake defect found.
However, the gravity of the violation was minimal because the antitilt
riggers attached to the outside of the work deck would limit the tilting of
the deck by wedging against the shaft wall. I find significant the inspector's own experience on the deck when the No. 3 brake's failure to hold properly did not cause anyone on the deck to lose his balance.
The negligence of the operator was also slight because a preshift inspection and hoisting inspection were conducted before the shift began; the crew
had been trying to level the deck for only a few minutes before the inspector

3750

arrived at the operator's compartment; and the safety features of the threestage work deck were more than adequate to prevent serious injury if one of
the brakes malfunctioned.
Based on the order of withdrawal issued on November 21, 1977, the Secretary has charged Respondent with a violation of 30 c·.FR. § 77.404, which provides: "Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately." The basic issue as to this charge is
whether the three-stage work deck was in safe operating condition. The
Secretary and the Respondent have not filed briefs as to this charge.

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I find that the Secretary failed to prove a violation as to this order.
As not:t!d above, a slack cable while the deck was stationary was a common
occurrence and three cables were capable of supporting the deck in a safe
condition. Inspector Hulvey testified that all of the brakes were working
properly. The evidence supports a reasonable inference that the slackness in
th·~ No. 1 rope was caused by the winch being backed off against the safety
pin and that this did not pose a safety hazard. The Secretary did not prove
by a preponderance of the evidence that the slack cable constituted an unsafe
condition.
Nor did the Secretary show by a preponderance of the evidence that the
presence of an air hose intertwined with one of the wire ropes posed a safety
hazard under the cited standard. Inspector Hulvey testified that the air hose
was not interfering with the function of the wire ropes because the deck was
stationary. He said that the only danger was that if the deck was moved, the
hose might snap. However, as noted above, the deck often remained stationary
for several days and there was no evidence that the deck was about to be
moved or that Respondent's crew would not have untangled
the hose from the
air ptmlp at the bottom of the shaft before moving the deck. The inspector
testified that the crew was taking a lunch break at the time of the inspection. I find that the Secretary failed to prove by a preponderance of the
evidence that the air hose interfered with the safe operation of the work
deck or that the air hose was in danger of snapping or being punctured at
the time of the inspection, or that Respondent planned to operate the deck
later without disentangling the air hose and wire rope. In addition, the
inspector testified that the hazard to the safe operation of the deck posed
by the air hose was minimal compared to the hazard of slackness in one of the
cables. The gravamen of the Secretary's charge having failed of proof (the
slack cable), the air hose condition does not warrant sustaining the
November 27 charge of an unsafe condition.

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CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the parties and subject
matter of the above proceedings.

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2. Respondent violated 30 C.F.R. § 77.404 by allowing men to travel on
an unsafe work deck as alleged in Order of Withdrawal No. 1 W.W.H. (7-62).
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Based upon the statutory criteria for assessing a civil penalty for a violation of a mandatory safety standard, Respondent is assessed a penalty of
$100 for this violation.
3. Petitioner did not meet his burden of proving a violation as alleged
in Order of Withdrawal No. 1 W.W.H. (7-67).
ORDER
WHEREFORE IT IS ORDERED that (1) the charge based on Order of Withdrawal
No. 1 w.w.H. (7-62) is DISMISSED, and (2) Clinchfield Coal Company shall pay
the Secretary of Labor the above-assessed civil penalty, in the amount of
$100, with 30 days from the date of this decision.

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SJ-~v~WILLIAM
FAUVER, JUDGE

Distribution:
Michael Bolden, Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Gary w. Callahan, Counsel for Clinchfield Coal Company, Lebanon,
VA 24266

3752

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

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OEC 3 0 1980

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Civil Penalty Proceeding

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
ROYAL DARBY COAL COMPANY, INC.,
Respondent

Docket No. KENT 80-220
Assessment Control
No. 15-07077-03017 V
No. 1 Mine

DEFAULT DECISION
Appearances:

Before:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

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Administrative Law Judge Steffey
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When the hearing in the above-entitled proceeding was convened in
Barbourville, Kentucky, on November 19, 1980, pursuant to written notice of
hearing dated September 24, 1980, and received by respondent on September 26,
1980, counsel for the Secretary of Labor entered his appearance, but no one
appeared at the hearing to represent respondent.

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Section 2700.63(a) of the Commission's Rules of Procedure provides that
when a party fails to comply with an order of a judge, an order to show cause
shall be directed to the party before the entry of any order of default. An
order to show cause was sent to respondent on November 21, 1980, pursuant to
29 C.F.R. § 2700.63(a). A reply to the show-cause order was timely filed by
the operator on December 1, 1980. The operator states that he was unable to
attend because his father passed away on the evening of November 18, 1980,
and was buried November 21, 1980. In such circumstances, the operator asks
that he not be held in default and that another hearing be scheduled.
It seems harsh to find an operator in default in circumstances which
show that the operator's father died on the evening of the day preceding the
day on which the hearing was scheduled to be held. I would be willing to
find that respondent had satisified the show-cause order and I would be willing to reschedule the hearing if the operator had stated that he made any
effort whatsoever to notify me before the hearing of the fact that his
father's death would prevent him from being able to be present at the hearing. The operator knew that the hearing was scheduled to be held i~ the

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conference room at the Office of the Mine Safety and Health Administration
in Barbourville, Kentucky. That office opens for business at 7:00 a.m. each
day and MSHA's employees do not leave until 5:30 p.m. Even after 5:30 p.m.,
a member of the custodial force will answer the phone if a call is made to
the office.
Respondent's failure to call the MSHA office on November 18, 1980, or on
the morning of November 19, 1980, caused us to have to pay a reporter for
being present at a hearing which lasted about 2 or 3 minutes. Additionally,
the Secretary's counsel drove all the way from Nashville, Tennessee, to
Barbourville, Kentucky, for the sole purpose of representing MSHA at the
hearing because all other cases scheduled on or after November 19, 1980, were
either settled or continued long in advance of the time set for the.convening
of the hearing in this proceeding.
The operator's answer to the show-cause order does not state specifically
what time his father died. Even assuming that his father died at 11:59 p.m.,
uhich is as late as the death could have happened and still be said to have
occurred on November 18, 1980, a call to the MSHA office at 7:00 a.m. on
November 19, 1980, would have enabled the reporter, MSHA's attorney, the
inspector, and me to start our return trips to our various offices instead
of waiting around, as we did, for well over an hour after 9:00 a.m. to provide the operator with the hearing he had requested in the event he should
make a tardy appearance.
I previously held a hearing in Barbourville on August 8, 1978, with
respect to the operator's cases in Docket Nos. BARB 78-387-P and BARB 78-419-P.
At that hearing, the operator presented his section foreman as a witness and
introduced documentary evidence. The citation involved in this proceeding was·
served by the inspector on respondent's section foreman. Therefore, the operator was forced to rely upon the first-hand knowledge of his section foreman to
present a defense to the alleged violation. In this proceeding, the hearing
was scheduled to be held
the morning of November 19, 1980. Consequently,
respondent would have had to have prepared for the hearing on November 18,
1980, prior to the death of his father who is said to have died on the evening
of November 18. Preparation for the hearing would at least have involved his
alerting his section foreman to be ready to travel to Barbourville early in
the morning because the operator had to drive to Barbourville, Kentucky, from
Louellen, Kentucky, a distance of about 45 miles. If the emotional stress
associated with the death of the operator's father caused him temporarily to
forget about the hearing, his section foreman would have reminded him very
early the next morning that he had failed to meet the section foreman for the
trip to Barbourville.

on

Additionally, as I noted in my decision issued February 7, 1979, in
Docket Nos. BARB 78-387-P and BARB 78-419-P, the operator has a history of
ignoring his obligations with respect to our hearings. On pages 1 and 2 of
my decision in Docket Nos. BARB 78-387-P, et al., I noted that respondent
had requested an opportunity to file a posthearing brief. He was given a
period of 30 days after receipt of the transcript within which to file the

3754

brief. '!'.he operator never did file that posthearing brief and never did
notify me that he no longer wished to file a brief even though I waited
for 5 months after the transcript was received before writing my decision
in order to give him plenty of time within which to file the brief. My
~ecision also noted on page 1 that the operator had made similar requests
in other hearings and had never filed a brief in any instance after he had
requested an opportunity to do so.
The foregoing facts show that the operator has consistently ignored his
reponsibilities as a participant in our proceeding and.has s~own indifference
to the expenses to the Government and time wasted by Government personnel in
providing him with procedural due process. I find that the operator has
shown no reason in his answer to the show-cause order why he could not have
noti~ied me or the MSHA office of his father's death so that at least some of
the time, effort, and expense associated with providing him with an opportunity for a hearing on November 19, 1980, could have been avoided.

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For the foregoing reasons, I find respondent to be in default. Section
2700.63(b) of the Commission's Rules of Procedure provides that when a judge
finds a respondent to be in default in a civil penalty proceeding, he shall
also enter a summary order assessing the proposed penalties as final, and
directing that such penalties be paid.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, Royal Darby Coal Company,
Inc., shall pay a civil penalty of $500.00 which was proposed by the Assessment Office with respect to the violation of section 75.200 alleged in Citation No. 746688 dated September 24, 1979.

~zad-~

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

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Distribution:
Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Edward W. Karst, President, Royal Darby Coal Company, Inc., Box 493,
Louellen, KY 40853 (Certified Mail)
;, U.S. GOVERNMENT PRINTING OFFICE: 1981- 341-638:3463

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