INDEX MAY 1980
Commission Decisions
5-16-80
5-23-80
5-28-80

Peabody Coal Co, MSHA v.
Capitol Aggregates Inc, MSHA v.
Valley Camp Coal Co, Ronald McCracken v.

LAKE 80-25
DENV 79-163-PM
WEVA 79-116-D

Pg. 1035
Pg. 1040
Pg. 1044

VINC 78-457-P
VA 79-83-M
VA 79-83-M

Pg. 1045
Pg. 1050
Pg. 1055

LAKE 80-78-D
WEVA 80-38
YORK 79-79-M
WILK 79-144-PM
CENT 79-29
PENN 80-16-R
WEST 79-250-M
WEST 79-69-M
WEST 79-167-M
SE 79-75
PENN 79-123
LAKE 80-36
LAKE 80-15-M
KENT 79-161-D
KENT 79-7
KENT 80-122-R
LAKE 80-247
BARB 79-327-P
LAKE 79-191-M
SE 79-88-M
WEVA 80-13-R

Pg. 1056
Pg. 1060
Pg. 1062
Pg. 1065
Pg. 1072
Pg. 1084
Pg. 1086
Pg. 1092
Pg. 1098
Pg. 1105
Pg. 1115
Pg. 1122
Pg. 1124
Pg. 1126
Pg. 1137
Pg. 1143
Pg. 1153
Pg. 1156
Pg. 1163
Pg. 1169
Pg. 1173

Administrative Law Judge Decisions
5-05-80
5-05-80
5-30-80
5-05-80
5-06-80
5-07-80
5-07-80
5-07-80
5-09-80
5-13-80
5-13-80
5-14-80
5-15-80
5-20-80
5-21-80
5-22-80
5-22-80
5-22-80
5-22-80
5-23..,...80
5-29-80
5-29-80
5-29-80
5-30-80

Peabody Coal Co, MSHA v.
Lone Star Industries, MSHA v.
Lone Star Industries, MSHA v.
Consolidation Coal Co, MSHA & Timothy
P. Scott v.
Kessler Coals, MSHA v.
Northern Aggregates, MSHA v.
Northern Aggregates, MSHA v.
Peabody Coal Co, MSHA v.
Consolidation Coal Co, MSHA v.
Sierra Ready Mix & Contracting Co, MSHA v.
Schneiders Ready Mix Inc, MSHA v.
FMC Corp., MSHA v.
Medusa Cement Co, MSHA v.
U S Steel Corp, MSHA v.
Peabody Coal Co, MSHA v.
Missouri Gravel Co, MSHA v.
Mountain Top Fuel Inc, MSHA v.
Middle Kentucky Construction, MSHA v.
McCoy Elkhorn Coal Corp v. MSHA
Peabody Coal Co., MSHA v.
The Hoke Co. Inc, MSHA v.
Hastie Mining Co,MSHA v.
B V Hedrick Gravel & Sand Co., MSHA v.
Consolidation Coal Co v. MSHA

Ccrrmission Decisions
May 1 - 31, 1980

MAY

The following cases were Directed for Review during the month of MAY:
Secretary of Labor, MSHA v. Capitol Aggregates, Inc., DENV 79-163-PM,
etc. (Judge Moore, April 14, 1980)
Ronald H. McCracken v. Valley Camp Coal Company, WEVA 79-116-D.
(Judge Melick, April 18, 1980)
Review was Denied in the following cases during the month of MAY:
Secretary of Labor, MSHA v. The Valley Camp Coal Company, WEVA 79-111,
HOPE 79-318-P. (Judge Merlin, March 28, 1980)
Hecla Mining Company v. Secretary of Labor, MSHA, WEST 79-251-M.
(Judge Carlson, April 1, 1980)
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., & Cowin and
Company, Inc., BARB 77-266-P, BARB 76X465-P. (Judge Koutras, April 1,
1980 Order)
Secretary of Labor, MSHA v. Morton Salt Division, Morton-Norwich
Products, Inc.; Frontier-Kemper Constructors, CENT 80-59-M. (Judge
Kennedy, April 14, 1980 Order)
Secretary of Labor, MSHA v. Cowin and Company, HOPE 76-210-P through
HOPE 76-213-P. (Judge Broderick, March 27, 1980 Order)
Secretary of Labor, MSHA v. Duval Corporation, WEST 79-194-M.
Morris, March 4, 1980)

(Judge

Heldenfels Brothers, Inc. v. Secretary of Labor, MSHA, DENV 79-575-PM,
DENV 79-576-PM. (Judge Stewart, April 8, 1980)
Secretary of Labor, MSHA v. Leeco, Incorporated, KENT 79-112.
Koutras, April 14, 1980)
Island Creek Coal Company v. Secretary of Labor, MSHA and UMWA,
WEVA 79-242-R. (Judge Cook, April 22, 1980)

(Judge

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

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

May 16, 1980

.

Docket Nos. LAKE 80-25
80-26
80-27
80-36
80-77

v.
PEABODY COAL COMPANY

DECISION
The primary question before us is whether the administrative law
judge erred in summarily assessing a penalty for an alleged violation of
30 CFR §75.400. 1/ For the reasons discussed below, we hold that he
erred. We therefore vacate the judge's decision assessing a penalty,
and remand the case for further proceedings consistent with this opinion.
On May 3, 1979, a Mine Safety and Health Administration ["MSHA"]
inspector issued to Peabody Coal Company a withdrawal order under section
104 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §801 et
seq. (Supp. II 1978)["the Act"]. The order alleged the existence of
loose coal and coal dust from 4 to 20 inches in depth for a distance of
about 900 feet in violation of 30 CFR §75.400.
This penalty litigation began when MSHA issued to Peabody a
notification of proposed assessment of penalty under section 105(a) for
the alleged coal accumulations violation, and Peabody filed a notice of
contest under section 105(d) of the Act. 2/ Under Conunission Rule
27(a), 29 CFR §2700.27(a), the Secretary then filed with the Commission
a proposal for a penalty. Peabody filed an answer in effect denying it
had violated the prohibition in 30 CFR §75.400 against accumulations of

1./

That section provides:
§75.400 Accumulations of combustible materials.
Coal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings or
on electric equipment therein.
Section 105 provides in part:
(d) If, within 30 days of receipt thereof, an operator of a coal or
other mine notifies the Secretary that he intends to contest the
issuance ••• of an order issued under section 104 ••• the Secretary
shall immediately advise the Conunission of such notification, and
the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, ••• ) and
thereafter shall issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's ••• proposed penalty,
or directing other appropriate relief ••••

80-5-10

1035

loose coal and coal dust. In its response to the administrative law
judge's pre~hearing order, Peabody reiterated this denial. It admitted
that some "spillage" had occurred, but specifically denied that the
spillage constituted an "accumulation" within the.meaning of the standard,
as interpreted by the Commission in Old Ben Coal Co., 1 FMSHRC 1954, 1
BNA MSHC 2241, 1979 CCR OSHD ,124,084 (1979). Before an evidentiary
hearing was scheduled, motions to approve a settlement were filed. The
Secretary proposed that the judge approve a penalty settlement in the
amount of $550 for the alleged violation of 30 CFR §75.400; the
Secretary in separate motions also proposed settlements for several
alleged respirable dust violations involved in the consolidated dockets. 11
In a document entitled "Decision and Order," issued on March 5,
1980, the judge granted the motions to approve a settlement for the four
respirable dust violations, but disapproved the proposed settlement of
$550 for the alleged violation of 30 CFR §75.400. The judge did not
find that Peabody admitted or was specifically called upon to deny, that
the depths of the spillage were those alleged in the withdrawal order.
The judge did not accord the parties an opportunity to be heard, and
immediately assessed a penalty of $1,000. Peabody filed a petition for
discretionary review, which we granted on April 14, 1980. !±./
Section 105(d) of the Act, together with section 5(b) of the
Administrative Procedure Act, 5 U.S.C. §554(c) (1976), 5/ and the
Commission's rules, require that unless a case is settl~d or the respondent defaults, an administrative law judge must afford the parties .an
opportunity for a hearing on disputed issues of material fact. Commission Rule 63(b), 29 CFR §2700.63(b); 6/ also cf. Commission Rule 64,
29 CFR §2700.64. J_/ Because Peabody denied that--;:n "accumulation" had

11 The coal dust accumulation case (Docket No. LAKE 80-77) is consolidated
with four respirable dust cases (Docket Nos. LAKE 80-25, 80-26, 80-27,
and 80-36).
!!../ Peabody filed on April 18, 1980, a motion to withdraw its petition
for discretionary review. We need not rule on that motion because we
now grant Peabody all the relief it sought in its motion.
2_/ Section 5(b) provides:
The agency shall give all interested parties opportunity for-(1) the submission and consideration of facts, arguments,
offers of settlement, or proposals of adjustment when time, the
nature of the proceeding, and the public interest permit; and
(2) to the extent that the parties are unable so to determine
a controversy by consent, hearing and decision on notice and in
accordance with sections 556 and 557 of this title.
&../ Rule 63(b) provides:
Penalty proceedings. When the Judge finds the respondent in default
in a civil penalty proceeding, the Judge shall also enter a summary
order assessing the proposed penalties as final, and directing that
such penalties be paid.
J_/ Rule 64 provides in pertinent part:
(a) Filing of motion for summary decision. , At any time after
commencement of a proceeding and before the scheduling of a hearing
on the merits, a party to the proceeding may move the Judge to
render summary decision disposing of all or part of the proceeding.
(cont.)

1036

occurred, and the judge did not find that the depth of the spillage was
admitted; a disputed issue of material fact remained unresolved. Accordingly, the judge erred in not granting the parties an opportunity to be
heard on at least that issue. A remand is therefore necessary. ~/
Peabody's petition for discretionary review also raises several
questions concerning the judge's order of March 25, 1980, in which the
judge denied Peabody's motion for reconsideration. We do not pass upon
the merits of these issues, for we find that the judge had no jurisdiction to enter that order. Inasmuch as the judge's decision of March 5
constituted "his·final disposition of the proceedings" within the
meaning of section 113(d)(l) of the Act, the judge's jurisdiction terminated on that date. Commission Rule 65(c), 29 CFR §2700.65(c). 2/ He
therefore had no power to rule on the motion to reconsider. Secretary
on behalf of Pasula v. Consolidation Coal Co., 1 FMSHRC 25, 1 BNA MSHC
2030, 1977 CCR OSHD ,[23,465 (1979). See also Penn Allegh Coal Co.,
March 1979 FMSHRC No. 3, 1979 CCR OSHD ,[23,439 (1979), in which we
cautioned that the issuance of multiple opinions "threatens the smooth
functioning of the Commission's review process." 10/

n. 7/ cont.
- (b) Grounds. A motion for summary decision shall be granted only if
the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits shows: (1) that there
is no genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter of law.
~ We need not pass upon whether other disputed issues of material fact
remain. We leave that to the administrative law judge to resolve on
remand.
2./ Rule 65(c) provides in pertinent part:
(c) ••. The jurisdiction of the judge terminates when his
decision has been issued by the Executive Director [of the
Commission].
10/ In that order, we stated:
The filing by the judge of multiple opinions impedes the
efforts of the aggrieved parties to timely comply with the
requirements for petitions, encourages "the hasty drafting of
inferior petitions, and thus impairs the usefulness of this
crucial document to the Commission. Moreover, the judge's
action may create confusion as to the status of the issues,
the deadlines for filing and granting of petitions and the
exercise by the Commission of its power to direct review on
its own motion. In short, the judge's action threatens the
smooth functioning of the Commission's review process.

1037

Accordingly, we remand this case to the judge for proceedings
consistent with this opinion. We also strike the judge's order of March
25, 1980, denying the motion for reconsideration, and his subsequent
orders of April 8 and 15, 1980.

Marian Pearlman Nease, Commissioner

1038

DistribuLiOn
David S. Hemenway
301 N. Memoral Drive
P.O. Box 235
St. Louis, Missouri 63166
Cynthia A. Attwood, Esq.
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
Arlington, Va. 22203
Administrative Law Judge Joseph B. Kennedy
Federal Mine Safety and Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Churcn, Virginia 22041

1039

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

May 23, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. DENV 79-163-PM
DENV 79-240-PM

v.
CAPITOL AGGREGATES, INC.

DECISION
The question in this case is whether the administrative law judge
had authority to stay the effect of and reconsider his final decision.
We hold that he did not.
On January 8 and 9, 1980, an evidentiary hearing was held before an
administrative law judge. At the end of the hearing, the judge ordered
the parties to file any post-hearing briefs within thirty days after
receipt of the transcript. The transcript was received by the judge on
February 8. When, after two months had passed and the parties had still
not filed briefs, the judge transmitted his decision to the Executive
Director, who promptly issued it on April 14.
The judge was later informed that, although the parties had ordered
transcript copies from the reporting company, neither party had received
them. On April 22, the judge issued an order purporting to stay the
effective date of his April 14 decision until he had received affidavits
from the parties and a statement from the reporting company, and,
possibly, until he had considered the parties' briefs on the merits.
The judge was careful to caution the parties that he may lack the
authority to issue such a stay. After receiving' affidavits of counsel
and a statement from the reporting company, the judge announced that his
stay would remain in effect until he had an opportunity to study the
briefs on the merits. He then·set a briefing schedule and suggested
that the parties direct their arguments to his April 14 decision.

80-5-13
1040

On May 14, the thirtieth day after the issuance of the judge's
decision, Capitol Aggregates filed a petition for discretionary review
of the judge's decision; the petition was filed to protect its right to
discretionary Commission review if the judge lacked the power to stay
his decision. On that same day, the Commission directed review of the
judge's decision on its own motion; the issues for review included
whether the judge had the authority to stay the effect of and reconsider
his decision. On May 20, 1980, the petition for discretionary review,
which raises issues concerning the correctness of the judge's April 14
decision, was granted.
The judge's decision of April 14 constituted his "final disposition
of the proceedings" within the meaning of section 113(d)(l) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~·
(Supp. II 1978), and Commission Rule 65(a), 29 CFR §2700.65(a). Commission Rule 65(c), 29 CFR §2700.65(c), which codifies Commission case
law, states that "[t]he jurisdiction of the judge terminates when his
decision has been issued by the Executive Director." The judge therefore had no authority to stay the effect of his decision or to reconsider
it. Peabody Coal Co., 2 FMSHRC _ _ , 1 BNA MSHC _ _ , 1980 CCR OSHD ,I __
(No. Lake 80-25, May 16, 1980). Cf. Penn Allegh Coal Co., March 1979
FMSHRC No. 3, 1979 CCH OSHD ,123,439 (1979) (issuance of multiple opinions
"threatens the smooth functioning of the Commission's review process"). 1/
The judge's order of April 22, 1980, is therefore vacated.
-

1./

Rule 65(c) codifies Secretary on behalf of Pasula v. Consolidation
Coal Co., 1 FMSHRC 25, 1 BNA 2030, 1979 CCR OSHD ,123,465 (1979). In his
order of April 22, 1980, the judge questioned the continuing vitality of
Pasula. The judge noted that a judge had in another case reconsidered
his final decision and that the Commission had not directed review. The
judge also interpreted our decision in Valley Camp Coal Co., 1 FMSHRC
791, 1 BNA MSHC 2083 (1979), as holding that the judge there should
have, and thus may have, reconsidered his decision.
In view of Rule 65(c)'s clarity, and its obvious purpose of codifying
the Pasula precedent, the continuing vitality of Pasula is plain. That
a contrary decision of another judge went unreviewed should not have
cast doubt on the matter. A failure to direct review of a judge's
decision inconsistent with Commission case law does not necessarily
indicate that the Commission concurs in that judge's decision. A
judge's decision may also go unreviewed because it does not raise an
issue deserving plenary Conunission review, or raises one in a posture
unsuitable for efficient resolution by the Commission. It -is partly for
this reason that Commission Rule 73 states that "[a]n unreviewed decision of a judge is not a precedent binding upon the Commission."
Finally, Valley Camp does not hold that the judge in that case should
have reconsidered his final decision. That decision holds only that
adequate cause to excuse a late filing had been shown.

1041

Our rules and precedents should not be construed to mean that an
administrative law judge can do nothing if he discovers that he erred in
his decision or that the case should be returned to him for other reasons.
The judge may, by a letter placed in the record, inform the Commission
of the circumstances and suggest that his decision· be directed for
review and the case remanded to him. Commission Rule 65{c) also states
in some detail the procedure to be followed to correct clerical errors
and mistakes in a judge's decision.
Finally, we conclude that, with the case in this posture, Commission review of the other issues should not be undertaken. The judge
sought to give the parties an opportunity to file briefs, and Capitol
Aggregates evidently wishes to file a brief with the judge. We consider
it prudent to permit the administrative law judge to first consider the
parties' arguments. In this way, the new decision of the judge may be
more sharply focused upon the issues of concern to the parties, and may
so squarely resolve them that discretionary review by the Commission may
not be sought again.
Accordingly, the judge's decision of April 14 is vacated, and the
case is remanded for further proceedings.

1042

Distribution:
Charles C. Moore, Jr.
Administrative Law Judge
No. 2 Skyline, Ste 1000
5203 Leesburg Pike
Falls Church, VA 22041
Cynthia L. Attwood, .Esq.
U.S.Department of Labor
Counsel, Appellate Litigation
4015 Wilson Boulevard
Suite 400
Arlington, VA 22203
Sandra D. Henderson, Esq.
Office of the Solicitor
U.S. Department of Labor
555 Griffin Square Building
Dallas, Texas 75202
Robert W. Wachsmuth, Esq.
311 Bank of San Antonio
One Romano Plaza
San Antonio, TX 78205
Richard L. Reed, Esq.
2600 Tower Life Building
San Antonio, TX 78205

1043

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

20006

May 28, 1980

RONALD H. McCRACKEN

v.

Docket No. WEVA 79-116-D

VALLEY CAMP COAL COMP ANY
DIRECTION FOR REVIEW AND ORDER
The petition for discretionary review filed by Mr. McCracken is
granted. The case is remanded to the administrative law judge for a
ruling on Mr. McCracken's claim that newly-discovered evidence
warrants re-opening of the record and further proceedings.

Richard V. Backley,

A. E. Lawson, Commissioner

~\JillJ,
~lCt~Q WO..Ll \c1a_.t.c
Marian Pearlman Nease, Commissioner

80-5-18

1044

Administrative Law Judge Decisions

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

5

MAY 1980
Civil Penalty Proceeding

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

Docket No. VINC 78-457-P
A.O. No. ll-00598-02040V

Vo

Eagle No. 2 Mine
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Inga Watkins, Attorney, Office of the Solicitor U.S. Department of Labor, Arlington, Virginia, for the Petitioner;
Thomas Gallagher, Esquire, St. Louis, Missouri, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil penalties
filed by the petitioner on August 17, 1978, against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a), charging the respondent with two violations of mandatory safety standards, namely, 30 C.F.R. §§ 75.200 and 75.202. The alleged
violations were served on the respondent by MSHA coal mine inspector Harold
Gulley in two section 104(c)(2) orders issued on August 1 and 29, 1977, pursuant to the 1969 Act. Petitioner seeks an assessment of civil penalties
for the alleged violations in the amount of $10,000 for each citation, for
a total assessment of $20,000.
Respondent filed a timely notice of contest denying that it has violated the cited mandatory safety standards and requested a hearing. The
hearing was initially scheduled for February 13, 1979, but was continued
on motion by the respondent and by agreement of the parties because of
the unavailability of respondent's sole witness. In addition, the parties
engaged in discovery, and petitioner responded to certain interrogatories
served on it by the respondent and they are a matter of record. The case
was subsequently redocketed for hearing at St. Louis, Missouri, March 25,
1980, and although petitioner's counsel advised me by telephone late Friday,
March 21, 1980, that the parties had engaged in settlement negotiations,

1045

the parties were directed to appear at the hearing as scheduled and were
informed that they would be given an opportunity to argue any proposals
for settlement on the record.
·
The parties appeared at th~ hearing on March 25, and at that time
informed me that their prior settlement negotiations were finalized and
they sought leave to present them on the record for my consideration pursuant to Commission Rule 30, 29 C.F.R. § 2700.30. After reminding the
parties of the fact that the hearing notice in this matter was issued by
me more than sixty (60) days in advance of the scheduled hearing of
Harch 25, 1980, and after advising them that I considered petitioner's
notification to me by telephone that the parties were in the midst of
settlement negotiations to be untimely, they were permitted to present
their proposed settlement and supporting arguments on the record for my
consideration.
Discussion
The citations at issue in this proceeding and the conditions and practices cited by MSHA inspector Harold Gulley are as follows:
§

Citation No. 7-0161, August 1, 1977, citing a violation of 30 C.F.R.
75.200, states:
The roof control plan was not being followed on section
008, 3 north off 3 mains east in that the entries were to
[sic] wide. No. 5 entry 23 feet in width, No. 2 crosscut
outby face between No. 4 and 5 entries 24 feet in width,
No. 4 entry 60 feet outby face 26 to 30 feet in width,
No. 3 entry 27 feet in width. Sketch 1 in roof bolting
plan development entries states 20 feet width in entries
and crosscuts.

§

Citation No. 7-0199, August 29, 1977, citing a violation of 30 C.F.R.
75.202, states:
Overhanging ribs were observed in rooms and crosscuts
Nos. 1 thru 6 and first crosscuts outby face (No. 1 room,
52 to 86 inches) (No. 2 room 71 inches) (Crosscuts between
No. 1 and 2 room 49 inch) (crosscuts between 2 & 3,
76 inches) (No. 3 room 53 inch and crosscut between 3 &
4 room 65 .inch) (No. 4 room 51 to 71 inch undercut and
crosscut 4 & 5, 48 inch) No. 5 and 6 room and crosscuts
6 inch to 55 inches undercut.
The parties stipulated to the following (Tr. 5):

1. Respondent is a large coal mine operator and the Eagle No. 2 Mine
is a large mining operation.

1046

2. Respondent is subject to the 1969 Federal Coal Mine Health and
Safety Act, as well as the 1977 Amendments thereto.
3. MSHA inspector Harold Gulley was, at all times relevant to this
proceeding, an authorized representative of the Secretary, the citations
were properly served on the respondent, and the conditions and practices
described on the face of the citations did not constitute an imminent
danger.
4. The proposed civil penalty assessments aqd settlement amounts will
not adversely affect res.pondent 's ability to remain in business.
The parties propose a settlement in the amount of $2,000 for Citation
No. 7-0161, issued on August 1, 1977, and $3,500 for Citation No. 7-0199,
issued on August 29, 1977. In support of the proposed settlement disposition of the citations, petitioner's counsel indicated that Inspector Gulley
was present in the courtroom and concurred in the proposed disposition of
the matter. Counsel summarized his testimony if it were necessary for him
to testify in the matter, and counsel also introduced for the record
Exhibits M-1 through M-12, which are copies of the citations, inspector's
statements, notes, the applicable mine roof-control plan, sketches of the
entries in question, the termination notices, and a computer printout of
the prior history of violations issued at the mine in question.
Respondent introduced copies of its Exhibits, R-1 through R-8 pertaining to one citation, and R-1 through R-4, pertaining to the second citation.
These documents consist of notes, sketches, preshift reports, photographs,
and the mine ventilation and roof-control plans. In addition, respondent's
counsel summarized its position with respect to the merits of the citations,
as well as certain factual and legal defenses he would advance in defense of
the citations, and he concurred in the proposed settlement disposition of
the matter.
In further support of the proposed settlement, petitioner's counsel
asserted that the initial proposed civil penalty assessments resulted from
an application of a "special assessment" procedure and policy which is no
longer being followed by MSHA. The initial assessments of $10,000 for each
of the violations in question resulted from a finding that the citations
were "unwarrantable failure" citations, and coupled with the fact that
respondent is a large operator, the civil penalty would "automatically be
iq the range of $5,000 to $10,000 unless there were other strong and mitigating factors" (Tr. 6). Counsel stated that this policy is no longer
followed by MSHA, and counsel requested that I consider the matter de ~·
Further, counsel asserted that MSHA's Office of Assessments is in agreement with the proposed settlement of the two citations in question and that
the inspector who issued the citations is also in agreement with MSHA's
proposed disposition of the citations (Tr. 26, 29).
In addition to the foregoing, MSHA's counsel presented arguments with
respect to the circumstances surrounding the issuance of the citations in

1047

question, and in particular presented information with respect to the
statutory criteria set out in section llO(i) of the Act.
Good Faith Compliance
MSHA asserted that respondent exercised rapid compliance in achieving
abatement of the conditions cited (Tr. 8, 11).
Gravity
With regard to Citation No. 7-0161, 30 C.F.R. § 75.200, MSHA stated
that while the roof areas where the widths of the entries were in fact
driven to excessive widths as noted in the citation, the roof areas themselves were not loose (Tr. 7). However, if called to testify, the inspector
would state that the hazard created by the condition would pose a risk of a
roof fall created by a strain placed on the roof by the excessive widths in
the entries in question (Tr. 8).
With regard to Citation No. 7-0199, charging a violation of 30 C.F.R.
75.202, MSHA asserted that whi+e the conditions cited were serious, most
of the overhanging ribs were outby the face and were fairly solid (Tr. 1011). Respondent's arguments regarding this citation reflect that the
overhanging ribs would have been taken down during the shift in which the
citation was issued, that this procedure was in accord with the approved
mining plan, that the ribs in question were "tight," and in fact had to
be drilled and shot down (Tr. 12-13).
§

Negligence
With regard to both citations, MSHA advanced the argument that the
conditions cited were visually obvious, that preshift or onshift examinations were required to be conducted, and that the conditions cited existed
for at least one shift prior to the time they were cited (Tr. 6-7, 10).
Respondent advanced the argument that corrective action had begun
to correct the wide entry violation prior to the issuance of the citation
alleging a violation of section 75.200, and that with respect to the alleged
violation of section 75.202, its evidence would show that in the course of
the normal mining cycle, the overhanging ribs cited would have been taken
down during the shift in which the citation issued, and that this procedure
was in accord with respondent's approved ribcontrol plan (Tr. 8, 10-13).
History of Prior Violations
Petitioner's evidence reflects that a total of 504 violations were
issued at the mine during the 2-year period prior to the issuance of the
citations in question, that 24 of these were for violations of section
75.200, and 19 were for violations of section 75.202 (Tr. 14-15). Considering the size and scope of respondent's mining operations at the

1048

mine in question, petitioner argued that _while these citations were serious,
respondent's overall prior history of violations is not extraordinarily
bad (Tr. 16).
Conclusion
Taking into account the fact that the citations in question were issued
over 2-1/2 years ago, that the initial assessments were arrived at through
the application of a "special assessment" procedure and policy which is no
longer in use, and the fact that MSHA's Office of Assessments is in accord with
the proposed settlement, I conclude and find that the proposed settlement is
reasonable. Further, I am persuaded by the arguments presented by counsel
with respect to the factors of negligence, gravity, and good faith compliance, as supported by the documentary evidence presented in support of these
statutory criteria, that the agreed-upon payment of $5,500 for the two citations, which have been vigorously contested by the respondent, is in the
public interest and will effectuate the deterrent purposes of the Act and
the mandatory safety standards in issue in this proceeding.
ORDER
Pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the proposed
settlement is APPROVED and respondent is ORDERED to pay civil penalties in
the amount of $5,500 in satisfaction of the two citations in issue in this
proceeding, payment to be made to MSHA within thirty (30) days of the date
of this decision and order. Upon receipt of payment by MSHA, this matter
is DISMISSED.

~·~~
Administrative Law Judge

Distribution:
Inga Watkins, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Thomas Gallagher, Esq., Peabody Coal Company, P.O. Box 235, St. Louis,
MO 63166 (Certified Mail)

1049

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

May 5, 1980

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

Civil Penalty Proceeding
Docket No. VA 79-83-M
A.O. No. 44-02422-05002

v.
LONE STAR INDUSTRIES, INC.,
Respondent

Curles Neck Pit Barge
and Dredge

DECISION
Appearances:

Barbara Krause Kaufmann, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
David S. Smith, Esq., Kilcullen, Smith & Heenan,
Washington, D.C., for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
Two citations are involved in this proceeding. The parties
have agreed to settle one of them and have submitted a motion to
approve the settlement agreement. With respect to the other citation, the parties have filed a joint stipulation of facts and have
submitted the matter for decision based upon those facts. The
stipulation was submitted to Administrative Law Judge Michels.
Upon his retirement, the case was assigned to me.
THE SETTLEMENT AGREEMENT
On April 21, 1980, Petitioner filed a motion to approve a settlement agreement and dismiss the proceeding with reference to Citation No. 301581 which charged a violation of 30 C.F.R. § 56.14-1.
The initial assessment was $60 and the parties propose to settle for
$20.

In support of the motion, Petitioner states that the condition-alleged failure to guard a coupling for a crusher drive motor--was
not serious in that it was largely guarded by location. It appeared

1050

highly unlikely that the coupling would contact any of the crusher
mechanisms. The settlement agreement is in accordance with a decision of Judge Koutras in Docket No. VINC 79-21-PM. Having considered
the statutory criteria in section llO(i) of the Act, I conclude that
the settlement agreement should be approved.
STIPULATIONS
The parties have stipulated as follows:
1. Citation No. 301578 was issued to Responde.nt by Federal
mine inspector Charles W. Quinn on February 13, 1979,,charging a violation of 30 C.F.R. § 56.11-2.

2. The citation states in part: "There was no handrail on the
water side of the catwalk from land to the No. 12 plant. Employees
entering this area are exposed to this unsafe condition."
3. Inspector Quinn's "Inspector's Statement" reads in part:
"Handrail provided for one side of the catwalk but not the water
side."
4. The structure characterized as a "catwalk" is made of
wooden planks and is supported on both sides by dolphins or pilings.
5. The specific area where the inspectQr required handrails to
be placed in the subject citation is about 45 feet long and is used
by the company as a dock where persons and supplies are loaded and
unloaded from Respondent's tug boats. This structure is-utilized,
on a daily basis, by Respondent's "puffer tugs" as the onJ.y available docking facility for such tugs, due to the placement of sand
barges ("sand scows") around the dredge for loading purposes. At
the time of the inspection, handrails existed at all areas other
than those used for access to boats.
6. A photograph attached to the stipulation shows a tug boat
approaching the area at low tide.
As may be observed from the water line on the dolphins or pilings, at high tide the bow of the tug boat rises to approximately
the same height as the handrails which have been installed.

7. On at least one occasion subsequent to installation of the
handrails pursuant to the inspector's citation, they have been
knocked down by an approaching tug boat.
8. The part of the dock in question also serves as a walkway
for persons who work on a dredge which is used as a preparation
facility or plant.

1051

9. Persons who work in the vicinity routinely wear life
preservers.
10. Respondent abated the condition in good faith although it
expressed its position that the regulation cited is not applicable
to the facility in question.
11. There is no history of prior safety violations at the
operation.
12. A handrail was provided on the side of the dock away from
the water.
13.

The dock was icy at the time the citation was issued.

14. There is no history of any accident or injury at the area
in question.
15. Five to six men use the dock as a walkway on a daily basis
to get to and from the processing dredge. Cleanup and maintenance
people use the dock as a walkway from time to time.
The stipulation is accepted and I find the facts set out
therein.
REGULATION
30 C.F.R. § 56.11-2 provides: "Crossovers, elevated walkways,
elevated ramps, and stairways shall be of substantial construction
provided with handrails and maintained in good condition. Where
necessary, toeboards shall be provided."
ISSUES
1. Whether the facility involved herein is an elevated walkway
within the meaning of the regulation.
2.

If so, whether the facts show a violation of the regulation.

3.

If so, what is the appropriate penalty for the violation.

CONCLUSIONS OF LAW
1. The area covered by the citation in question was an
elevated walkway subject to the safety standard set out in 30 C.F.R.
§ 56.11-2.
DISCUSSION
Part 56 contains health and safety standards for sand, gravel
and crushed stone operations. Section 56.11 applies to travelways,

1052

and section 56.11-2 applies to, among other things, elevated walkways. A walkway is a passage for pedestrians. The stipulations and
findings of fact state that the area in question "serves as a walkway for persons who work on a dredge which is used as a preparation
facility or plant" and "cleanup and maintenance people also use the
dock as a walkway from time to time." The fact that the area is
also used as a dock for loading and unloading tugboats does not
negate its character as a walkway.
The photograph showing the area at low tide clearly indicates
that the walkway is higher than the water level. The stipulation
states that at high· tide, the bow of the tugboat rises to approximately the same height as the handrails. It is clear that during
at least some of the time the area is used as a walkway, it is
elevated. The hazard which the standard seeks to address is the
hazard of falling from a walkway. This hazard exists even if the
water level is at or near the height of the walkway. The use of the
facility for loading and unloading does not lessen the hazard for
those using it as a walkway. The fact that boats are apt to knock
down the rail does not excuse its absence.
2. The parties agree that a handrail was not provided for the
area in question on February 13, 1979. Therefore, a violation of
30 C.F.R. § 56.11-2 was shown.
3. The violation was moderately serious.
show that Respondent was negligent.

The facts do not

4. Based on my finding that a violation occurred and on a consideration of the criteria set out in section llO(i) of the Act, an
appropriate penalty for the violation is $90.
ORDER
Therefore, IT IS ORDERED that Respondent pay the following penalties within 30 days of the date of this decision:
Citation No. 301581
Citation No. 301578

$ 20
$ 90
Total $110

.
;J

,

'

.• (· «

f<._
.}/'.-,~ -5
James A. Broderick
Chief Administrative Law Judge
.

1

..,

.

'f--i , .
, ._J ', .(, ( .. \
/

t.

. 1053

·7

'./..

'

•

I

Distribution:

By certified mail.

David S. Smith, Esq., Attorney for Lone Star Industries, Inc., Kilcullen,
Smith & Heenan, 1800 M Street, N.W., Washington, DC 20036
Barbara K. Kaufmann, Attorney, Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Philadelphia, PA 19104
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1054

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

May 30, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MESA),
Petitioner
v.

Civ.il Penalty Proceeding
Docket No. VA 79-83-M
A.O. No. 44-0242205002
Curles Neck Pit Barge
and Dredge

LONE STAR INDUSTRIES, INC.,
Respondent

ORDER CORRECTING DECISION
On May 27, 1980, Respondent filed a motion to correct the decision
entered herein on May 5, 1980, which found as the appropriate penalty
for the violation charged in citation No. 301578 to be $90. This finding was based in part on the stipulation of facts submitted by the parties which stated that the MSHA assessment office assessed a $90 penalty
for the violation. In fact the assessed penalty was $78. Petitioner
does not oppose the motion.
Therefore, IT IS ORDERED that the decision issued herein on May 5,
1980 IS CORRECTED to find that the appropriate penalty for the violation
charged in citation No. 301578 is $78.
Respondent is ORDERED to pay the following penalties for the violations covered by this docket number within 30 days of the date of this
decision:
Citation No. 301581
Citation No. 301578
Total
$98

$20
78

.. icJ-A/Vv??

._.,,/
Distribution:

~ ~"1/f- ~

j,1:J
James A. Broderick
Chief Administrative Law Judge

By certified mail.

Davids. Smith, Esq., Attorney for Lone Star Industries, Inc., Kilcullen,
Smith & Heenan, 1800 M Street, N.W., Washington, DC 20036
Barbara K. Kaufmann, Attorney, Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1055

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

5

22041

MAY 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), On its
Own Behalf and On Behalf of
TIMOTHY P. SCOTT
Complainants
v.

Complaint of Discharge,
Discrimination or Interference
and Civil Penalty Proceeding
Docket No. LAKE 80-78-D
No. 60 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Miguel Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinios, for Complainants;
John Vernon Head, Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Administrative Law Judge Melick

This case is before me upon the complaint of the Secretary of Labor,
Mine Safety and Health Administration (MSHA), on behalf of Timothy P. Scott
alleging discrimination under section 105(c) of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. § 801 et seq., hereinafter referred to as the
"Act"). MSHA also petitions on its own behalf for a civil penalty to be
assessed against the Consolidation Coal Company (Consolidation) under section llO(a) of the Act for the alleged discriminatory acts. An evidentiary
hearing was held on April 1, 1980, in Wheeling, West Virginia.
The issue in this case is whether Consolidation discriminated against
Scott in violation of section 105(c) of the Act and, if so, what is the
appropriate relief to be awarded Scott and what are the appropriate civil
penalties to be assessed against Consolidation for such discrimination.
Section 105(c)(l) of the Act provides in part that no person shall in any
manner discriminate against, or cause discrimination against, or otherwise
interfere with the exercise of th.e statutory rights of any miner or representative of miners because of the exercise by such miner or representative
of miners of any statutory right afforded by the Act.

1056

The essential facts are not in dispute. At all times relevant Timothy
Scott was a scraper (pan) operator for Consolidation at its No. 60 Mine.
Scott was also an authorized representative of miners and in this capacity
spent 21-1/4 hours on March 5,.6 and 7, of 1979, accompanying an MSHA inspector in a regular inspection of the mine in accordance with section 103(f)
of the Act. Under section 103(f) an authorized representative of miners
such as Scott, is entitled to ~ccompany an.MSHA inspector in the course of
his inspection (commonly referred to as a "walkaround"). It also provides
that·"such representative of miners who is also an employee of the operator
shall suffer no loss of pay during the period of hi~ participation in the
inspection made under this subsection." In commenting on the.provisions
of section 103(f), the Senate Human Resources Committee in its report on
Senate ~ill 717, the bill which was the basis for the 1977 Act, stated
that: "to encourage such miner participation, [in walkaround activities]
it is the committee's intention that tJ:ie miner that participates in such
inspection and conferences be fully compensated by the operator for time
thus spent. To provide for other than full compensation would be inconsistent with the purpose ·of the Act and would unfairly penalize the miner
for assisting the inspector in performing his d1.lties~" Senate Report
No. 181, 95th Congress, 1st Session reprinted in U.S. Code Congressional
and Administrative News 3428-3429 (1977). Within this framework it is
clear that if Scott suffered a loss Qf pay as a result of his statutorily
protected walkaround ·activities then he suffered discriminat.ion under
section 105(c)(1).
Scraper operators such as Scott are paid in accordance with the
National Bituminous Coal Wage Agreement of 1978 (Wage Agreement) at the
grade 3 rate, then $64.61 per day, when performing classified work, and for
vacation pay, extra days, graduated days, floating days, holiday pay, and
4 hour show-up time. Under the Wag~ Agreement, however, the scraper operators are paid at a grade 5 level, then $71.97 per day, when the machines
are "engaged in the removal of over burden as an integral part of the
overburden removal.process." Consolidation compensated Scott for the
21-1/4 hours spent in walkaround activities at the grade 3 rate claiming
that the Wage Agreement requires that grade 5 pay need only be awarded
when the specified overburden removal is actually perJormed by the employee.
It cites a number of arbitration decisions which it claims supports its
position. MSHA and Scott contend that he should have been paid at the
grade 5 rate and maintain that he was therefore discriminated ·against
in violation of section 105(c) of the Act.
·
Scott testified without contradiction that on the morning of March 5,
1979, he was told that he was to perform overburden removal work (grade 5
work) and in preparation for such work began his preshift examination of the
scraper at around 7 a.m. . Later notified of the MSHA inspection, he began his
walk around activities at 7:30 that morning and continued thereafter in that
capacity for a total of 21-1/4 hours on March 5, 6, and 7. It is undisputed
that other scraper operators performed overburden removal work d,uring this
period of time and, were in fact paid, for this work at the grade 5 rate.
At least one of these operators performed that work for the same 21-1/4-hour
period at issue herein and was paid for those hours at the grade 5 r.ate.

1057

Clearly there is no way to determine the amount of time Scott would
have spent in grade 5 overburden removal work had he not performed his
walkaround duties. Whether such work is actually performed is subject to
a great many variables including weather conditions, equipment functioning,
availability of operators and work priorities. Moreover from the records
of other members of Scott's work crew, it is apparent that the amount of
time spent by each in overburden removal varied widely during this time.
Some of the operators performed no grade 5 work and at least one performed
grade 5 work for the entire 21-1/4-hour period at issue. Therefore while
it is impossible to determine precisely how much time Scott would have spent
working at the grade 5 level, it is apparent that he could have spent the
entire 21-1/4-hour period engaged in such work.
Under the circumstances I find that Scott was unfairly penalized in
performing his walkaround duties as a representative of miners because he
was therefore deprived of the opportunity to perform overburden removal
work at the grade 5 rate of pay. In order to assure that Scott is not
unfairly penalized for having perfomed his duties as a representative of
miners, I find that he must be compensated in an amount equivalent to the
grade 5 rate for the maximum time worked in that mine by any other single
employee in the capacity of a grade 5 scraper operator during the time
Scott was engaged in his walkaround activities. To provide him anything
less would discourage his participation in these important functions,
contrary to law and the clear intent of Congress. Since the evidence
indicates that at least one other scraper operator employed at this mine
performed the grade 5 work during the entire 21-1/4-hour period at issue,
Scott is entitled to the grade 5 pay differential for the ent~re period.
I therefore order Consolidation to pay Scott within 30 days of this decision the amount of $21.47 (the hourly differential in pay between grade 3
and grade 5 of $1.01 x 21-1/4 hours) plus interest computed at the rate of
10 percent per annum from the date he would ordinarily have received that
pay to the date on which it is actually paid.
Since I have found that Consolidation did discriminate against Scott
I must, in accordance with section 105(c)(3) of the Act, determine the
appropriate civil penalty to be assessed under the relevant criteria set
forth in section llO(i) of the Act. The operator is large in size but
has no history of discrimination violatio~s under section 105(c) of the
Act. I find that the violation herein was serious because of its potential
chilling effect on miner participation in walkaround and other health and
safety related functions. I find only slight negligence however, because
I believe the operator was acting in the good fait~ belief that it was
awarding Scott the appropriate rate of walkaround pay. Thus only a
nominal penalty is warranted. I therefore order th~t a penalt~f $1 be
paid by Cou.olidation within 30 days of the date o~ \ i s decis"o •

" \\}',c\_ ~v "-

)'
Gary Me "ck
Adminislt
I

!
1058

{

Judge

Distribution:
Miguel Carmona, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
John V. Head, Esq., Counsel, Consolidated Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)

1059

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

&

MA'f 1980

Civil Penalty Proceeding

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

Docket No. WEVA 80-38
A/O No. 46-04774-03010

Petitioner
v,.

Kessler No. 3 Mine
KESSLER COALS, INC.,
Respondent
DECISION
Appearances:

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
C. Lynch Christian III, Esq., Jackson, Kelly, Holt
& O'Farrell, Charleston, West Virginia, for Respondent.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding 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.
On November 26, 1979, Petitioner filed with the Mine Safety and Health
Review Commission a petition for assessment of civil penalty in this case.
Respondent filed its answer to the petition on December 26, 1979. The
hearing in these matters was commenced on April 15, 1980, in Charleston,
West Virginia.
Citation No. 0637464 issued by the Federal mine inspector on April 11,
1979, citing a violation of 30 C.F.R. § 75.509 stated that "Work was being
performed on the continuous miner on 2 Right section (001-2) while the
continuous miner was energized."
At the hearing, Petitioner stated on the record that there was insufficient proof that the continuous miner was energized and moved that the
citation be vacated. The motion was granted and the citation was vacated
from the bench.

1060

ORDER
The vacation of the citation is affirmed •. The proceeding is dismissed.

Forrest E. Stewart
Administrative Law Judge

Distribution:
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department of
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)

1061

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

'l

MAY 1980

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

Civil Penalty Proceeding
:
Petitioner

Docket No. YORK 79-79-M
A.c. No. 30-01267-05005

v.
Fulton Plant
NORTHERN AGGREGATES, INC.,
Respondent
DECISION AND
ORDER OF DISMISSAL
Apearances:

Jithender Rao, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm, 3555, 1515 Broadway, New York, New York, for
Petitioner;
Paul A. Germain, Esq., Germain & Germain, Syracuse, New York,
for Respondent.

Before:

Administrative Law Judge Melick

This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u. s.c. § 801 _!! ~·, her~inafter reJ;erred to as the "Act." At hearings
commencing February 20, 1980, in Syracuse, New York, Petitioner moved to
dismiss this proceeding on the grounds that the operator, Northern Aggregates,
Inc. (Northern), did not file its notice of contest to the proposed assessment of penalty within 30 days of its receipt. Petitioner asserts that under
section 105(a) of the Act, such failure to timely contest the proposed
assessment caused the citation and proposed assessment to become a final
order of the Commission not subject to review by any court or agency.
Section 105(a) provides in relevant part, as follows:
If, after an inspection or investigation, the Secretary
issues a citation or order under section 104, he shall,
within a reasonable time after the termination of such
inspection or investigation, notify the operator by certified mail of the civil penalty proposed to be assessed under
section llO(a) for the violation cited and that the operator
has 30 days within which to notify the Secretary that he
wishes to contest the citation or proposed assessment of
penalty * * .''!t. If, within 30 days from the receipt of the
notification..,issued by the Secretary, the operator fails to
notify the Secretary that he intends to contest the citation

1062

or the proposed assessment of penalty, * * * the citation
and the proposed assessment of penalty shall be deemed a
final order of the Commission and not subject to review by
any court or agency * * *·
The parties have stipulated, and therefore there is no dispute, that
Northern received the proposed assessment of penalty in this case on
May 19, 1979, and that it filed its notice of contest on August 9, 1979,
more than 2-1/2 months later. Northern contends, however that under the
Commission's Rules of Procedure, 29 C.F.R. § 2700.63 and 29 C.F.R. § 2700.9,
the administrative law judge has the discretionary authority to permit late
filing for good cause. Rule 2700.9 does provide for good cause extensions
of time but it also requires that a request for an extension of time be
filed S days before the expiration of the time allowed for its filing.
Since no such request was made in this case Rule 2700.9 would in any event
be inapplicable. Rule 2700.63 requires that before the entry of any order
of default or dismissal for failure of a party to comply with an order
of a judge or the rules, an order to show cause must first be directed
to the party. Northern has in this case however failed to comply with
a statutory filing requirement as distinguished from a requirement in the
rules or under a judge's order. Rule 2700.63 (as well as Rule 2700.9) is
therefore inapplicable to this proceeding.
Since there are no provisions for consideration of good cause for late
filing under section lOS(a), but only a precise statutory directive that upon
failure to timely file a notice of contest the citation and the proposed
assessment of penalty "shall be deemed a final order of the Commission
and not subject to review by any court or agency," it is apparent that the
Petitioner's motion to dismiss must be granted as a matter of law. I have
no jurisdiction to consider the merits of the case or to even consider
whether good cause existed for the late filing. Similar provisions under
section lO(a) of the Occupational Safety and Health Act 29 u. s. C. § 659(a),
have been interpreted similarly. */ Secretary v. American Airlines, Inc.,
BNA 2 OSHC 1326 (1974), CCH/OSHD l8,908 (1974-1975).
Under the circumstances, the citation and proposed assessment dated
May 14, 1979, and received by the operator on May 19, 1979, became the final
order of the Commission 30 days after its receipt by the operator. Since a
jurisdictional defect cannot be waived it is immaterial that the Secretary
erroneously initiated these proceedings before the Commission. Consolidation
Coal Co., 1 IBMA 131 at 137 (1972). This case is therefore dismissed for
lack of jurisdiction.
29 u. s. c. § 659(a) provides as here relevant:
"If, within fifteen working days from the receipt of the notice * * *
the employer fails to notify the Secretary that he 'r.tends to contest * * *
the citation and the assessment * * * shall be deem µ a final
of the
Commission and not subject to reviewlby
a
agewncy." ;•

'!:_/

L
y elick
Admin;t! trativ

1063

I

*
aw

u'dge

·

Distribution:
Jithender Rao, Esq., Office of the Solicitor, U.S. Department of Labor,
Rm. 3555, 1515 Broadway, New York, NY 10036 (Certified Mail)
Paul A. Germain, Esq., Germain & Germain, 314 East Fayette Street,
Syracuse, NY 13202 (Certified Mail)

1064

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

'l

MAY 1980

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

Civil Penalty Proceedings
Petitioner

Docket No. WILK 79-144-PM
A.C. No. 30-01267-05003

v.

NORTHERN AGGREGATES, INC.,
Respondent

Docket No. WILK 79-145-PM
A.C. No. 30-01267-05004
Fulton Mine

DECISION
Appearances:

Jithender Rao, Esq., Office of the Solicitor, U.S.•.Department
of Labor, Rm, 3555, 1515 Broadway, New York, New York, for
Petitioner;
Paul A. Germain, Esq., Germain & Germain, Syracuse, New York,
for Respondent.

Before:

Judge Melick

These cases are before me upon petitions for assessment of civil penal ties under section llO(a) of the Federal Mine Safety and Health Act of
1977 (30 U. S.C. § 801 ~ ~·, hereinafter referred to as the "Act"). In
the ca.se designated WILK 79-144-PM, Petitioner filed a proposal for assessment of civil penalties on September 10, 1979, and the Respondent, Northern
Aggregates, Inc. (Northern), filed its notice of contest on September 20,
1979. In case No. WILK 79-145-PM, Petitioner filed its proposal for assessment of civil penalty on September 14, 1979, and Northern filed its notice
of contest on September 20, 1979. The cases were consolidated for hearing
which was held in Syracuse, New York, on February 20 and 21, 1980.
The issues in these cases are whether Northern has violated the provisions of the Act and implementing regulations as alleged in the petitions
for assessment of .civil penalties filed herein, and, if so, the appropriate
civil penalties to be assessed for the alleged violations. In determining
the amount of a civil penalty that should be assessed for a violation, the
law requires that six factors be considered: ( 1) his.tory 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.

1065

I.

Docket No. WILK 79-144-PM

The following eight citations charge violations of mandatory safety
standard 30 C.F.R. § 56.14-1 which requires that "[g·]ears; 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.
Citation No. 210526 specifically charged that the return idler rollers
on the main feed belt were not guarded. These rollers were located only 2 to
3 feet from the ground floor. MSHA inspector Robert Kinterknecht saw loose
material and a partially filled wheelbarrow and shovel directly below an
exposed roller. It is reasonable to conclude that a worker was cleaning up
this loose material. He would have been. directly below the belt and would
have been exposed to the hazard. The operator's witness admitted that the
rollers were unguarded and admitted that ordinarily two employees would be
in that vicinity twice a day for 5 to 6 minutes to clean up around the belts.
He claimed, however, that the same general area had been inspected before by
another inspector who said nothing about the exposed rollers while citing an
exposed tail pulley only 18 to 20 inches away. I do not, however, consider
the failure of a previous inspector to have cited this condition, standing
alone, as having any probative value.
Citation No. 210527 charged that the tail pulley on the "piggy-back"
belt was not guarded. The tail pulley was at ankle or knee height from the
ground. The south side of the tail pulley was exposed and the operator conceded that employees would be on that side of the pulley once a week to
grease it. The operator contended, however, that a previous guarding violation on the north side of the pulley had been abated by a previous MSHA
inspector and the inspector did not cite the south side. The contention is
without merit and no reduction in the operator's negligence is warranted.
Citation No. 210532 charged that the idler rollers were unguarded the
entire length of the feed conveyor. The two strands of No. 9 wire (about
the thickness of a ballpoint pen) suspended by angle irons being used as a
guard was felt to be inadequate to prevent someone from slipping or falling
into the rollers or getting an arm or sleeve caught in the rollers. The
operator admitted that the catwalk alongside the rollers was used by
employees to grease, maintain, and inspect the operation of the belt, but
asserted that this area had previously been cited by an MSHA inspector for
having been unguarded and that that citation was abated by the same method
found by inspector Kinterknecht to be a violation. While, if true, this
assertion could have some bearing on the case I find that Northern has
failed in its proof. Cf. Secretary v. Standard Building Material Co.,
1 FMSHRC 702 at P• 703. (June 1979). In the absence of any corroborative
evidence such as a copy of the earlier citation or testimony or an admission
from the former inspector, I can give but little weight to the hearsay allegations. Inspector Kinterknecht had, moreover, checked MSHA's records and
found no evidence to support the assertion. Since the wire did provide some
protection however, a slight reduction in penalty is warranted.

1066

Citation No. 210534 alleged that the idler rollers on the secondary
conveyor were not guarded and were exposed to people walking on an adjacent
catwalk. The operator claimed that the two strands of No. 9 wire had been
accepted as abating an earlier violation but failed to prove his claim.
Since the wire provided some protection however, a slight reduction in the
penalty is warranted.
Citation No. 210539 charged that the idler rollers in the wash plant
house were not guarded. The rollers were located along a walkway on the
floor. The operator admitted that one side of the roller was easily
accessible, but claimed that the other side was not easily accessible and
would expose only one employee once a week while he greased the rollers.
I find the extent of the hazard to be accordingly slightly reduced.
Citation No. 210556 charged that the tail pulley on the sand conveyor
from the wash plant to the stockpile was not guarded. The pulleys were 2
to 3 feet from the base of the catwalk and the belt was running at the
time of the inspection. Ross Fox, the operator's representative, admitted
that an employee would be in the area periodically to check the belt.
Citation No. 210555 charged that the idler rollers on the sand conveyor
from the wash plant to the stockpile were not guarded. The full length of
the sand conveyor was inadequately guarded with only two strands of No. 9
wire. The pinch points on the conveyor were about waist-high and adjacent
to a catwalk where employees would pass. The operator claimed that the
use of the No. 9 wire had been approved by the previous inspector, but
failed to prove his claim. Since the wire provided some protection however,
a slight reduction in the penalty is warranted.
Citation No. 210569 charged that the takeup pulley was unguarded under
the feeder conveyor. The operator pointed out, however, that this was not
in fact an area in which anyone worked. The backhoe was used to clean under
that area and the backhoe operator would not be exposed to the hazard. I
,accept this testimony, but in light of the inspectors testimony that the
pulley was in an area in which contact could be made, I find that a violation
nevertheless occurred. Under the circumstances, the likelihood of injury was
less than thought by the inspector and some reduction in the penalty is
therefore warranted.
With respect to each of these previous violations, Kinterknecht testified that the particular hazard presented by the violations was the potential breakage, crushing or loss of limbs or breaking one's neck after being
caught by the shirt sleeves and dragged into a pinch point. The inspector
concluded that the operator should have noticed these violations on making
his routine daily inspections. Few employees would have been exposed to
the hazards and even then only infrequently. I accept the inspector's testimony in this regard.
Citation No. 210554 charged a violation of 30 C.F.R. §. 56.14-6 (guards
shall be securely in place) in that the guard was broken over the drive
pulley on the electric motor operating the sand conveyor thereby exposing

1067

an area of about 6 inches by 2 feet. Contact could be made with the drive
pulley and V-belt while the motor was running. The operator alleged that
no one had brought the problem to his attention before this time, but I find
that he was nevertheless negligent since he should have seen the broken guard
on his daily inspection of the plant. It was readily visible. Resulting
injuries could have been permanently disabling caused by a crushed or broken
arm.
The following four citations relate to violations of mandatory standard
30 C.F.R. § 56.9-2 (requiring that equipment defects affecting safety be
corrected before the equipment is used).
Citation No. 210565 alleged that the backup alarm on a front-end loader
was not working. Inspector Kinterknecht observed trucks dumping in the area
in which the front-end loader was operating and saw others parked nearby.
He opined that someone could have been run over because the operator could
not see behind him, thereby causing disabling or fatal injuries. The machine
operator told Kinterknecht that the alarm had not been working for a couple
of days. In any event, the operator should have observed the defect in
making his daily rounds. Northern did not deny the violation but·alleged
that it then had a procedure for correcting defective equipment whereby the
equipment operator would write up a work order for any malfunction. There
is no evidence that such a work order was filed with respect to this incident. Under the circumstances, I give but little weight to the alleged
corrective procedures and no reduction of negligence.
Citation No. 210571 alleged that the backup alarm in dump truck No. 53
was not working. Kinterknecht could not recall whether any other personnel
were in the area in which the truck was operating, but noted that the driver
could not see behind him while backing up and that management should have
known of the defect when making its daily rounds. The truck driver told
Kinterknecht that he did not know of the malfunction. Since the malfunction
could have occurred only moments before, I feel some reduction in negligence
is warranted.
Citation No. 210572 charges that the backup alarm on the Terex frontend loader was not working. Kinterknecht observed that two other trucks
were waiting in the pit area while another truck was being loaded and that
the drivers of these trucks were standing around talking to each other. It
was likely that the front-end loader could have run over someone, thereby
causing injury or death. The alarm had been working a few days before.
There is no evidence as to when it first malfunctioned. Some reduction in
negligence is therefore warranted.
Citation No. 210573 alleges that the backup alarm on the No. 68 dump
truck was not working. Although Kinterknecht could not recall precisely
where it was operating, he testified that wherever it was operating, either
at the stockpile or at the pit, there were always trucks around, thereby
creating a potential hazard to the drivers. Management should have known
of this condition based on its routine daily examinations.

1068

Citation No •. 210568 charged a violation of 30 C.F.R. § 56.9-22 which
requires that berms or guards be provided on the outer bank of elevated
roadways. The evidence shows that the area in question was actually a
ramp variously described as from 12 to 20 feet long, 14 feet wide, and 5
to 7 feet high at the highest point. The evidence shows that it would
only be used in the event of a breakdown in the primary crusher. It was a
backup hopper used by payloaders only infrequently. It was likely that
a truck might run off the outer edge of the bank and turn over, thereby
causing fatal injuries. The condition should have been known to the
operator from his daily routine inspections of the plant area.
Citation No. 210570 charged a violation of 30 C.F.R. § 56.9-71
(requiring that traffic rules, including speed, signals, and warning signs
be standardized at each mine and posted). It was specifically charged that
there were no speed or warning signs posted anywhere in the mine area.
Employees could have been seriously injured in an accident because of excess
speed and obstructed vision.
Citation No. 210540 charged a violation of 30 C.F.R. § 56.12-32
(requiring that inspection and cover plates on electrical equipment and
junction boxes be kept in place at all times except during testing or
repairs). The operator admitted that the junction box cover was missing
as charged and that the junction box was energized, but claimed that the
switch was not then in use and that exposure was unlikely. The operator
conceded, however, that screens were stored in the switchhouse and
employees entered the area to remove the screens. Fatal injuries were
probable because the area was dark and a person could stumble into the
junction box. The operator should have observed this condition since it
was plainly visible. A slight reduction in gravity is warranted, inasmuch
as Kinterknecht was not aware that the junction box was not then in use as
a switch.
Citation No. 210561 also charged a violation of 30 C.F.R. § 56.12-32
alleging that the junction box on an air compressor was not covered.
Although no wiring was exposed, the insulation could be knocked off or the
electrical tape and "quick connectors" could become undone by vibration
from the compressor. Permanent disabililty or fatal injuries could result
from contact with exposed wiring. It was probable that such injuries could
occur. The operator should have seen the defect on his daily routine inspection of the area.
Citation No. 210575 charged a violation of 30 C.F.R. § 56.12-2
(requiring that electrical equipment and circuits be provided with switches
or other controls). The citation alleged that in the same room as the compressor there was a light without a switch. In order to turn the light off,
one had to unscrew the bulb from the socket. Injuries such as burning or
shock were probable and employees would be exposed to that bulb two or three
times a day. The operator should have known of this condition on his daily
rounds.

1069

Citation No. 210559 charged a violation of 30 C.F.R. § 56.12-34
(requiring guarding of portable extension lights and other lights that by
their location present a shock or burn hazard). The citation alleged that
a bare light bulb in pump house No. 2 was not guarded. It was at face
level upon entering the building. Injury was probable to the one or two
employees who might enter the premises. The operator was negligent in that
the problem was plainly visible.
Citation No. 210533 charged a violation of 30 C.F.R. § 56.11-2 (requiring
toeboards be provided where necessary). The citation alleges that a toebdard was not installed around the platform on the No. 1 tower. Maintenance
was performed at this location about 30 feet above ground level. With people
walking beneath the platform, it was probable that they would be struck with
falling rocks or tools. Resulting injuries could result in lost work days as
a result of bruised shoulders or arms. The operator should have known of this
condition. The operator conceded that no toeboard existed on the platform at
the time of the inspection, but claimed the catwalk had just recently been
extended and that they had insufficient time to erect the toeboard. The
operator conceded, however, that the catwalk had been extended in the spring
of 1978 and no explanation was given as to why toeboards had not been
installed as of September 27, 1978, the date of the inspection.
t~at

II.

Docket No. WILK 79-145-PM

Citation No. 210576 charges a violation of section 109(a) of the Act
alleging that the citations that had been issued during the inspection on
September 27, 1978, had not been posted on the mine bulletin board. Inspector Kinterknecht had informed the operator on September 27, 1978, the date
the citations had been issued, that those citations had to be posted. The
operator conceded that he failed to post the citations. The condition was
abated immediately.
With respect to all the violations in both cases discussed herein, the
Gov.ernment concedes that the cited conditions were corrected within the time
specified for abatement. It is also stipulated that the operator's business
is small in size. I observe that the operator's history of previous violations prior to September 27, 1978, was minimal and therefore is given minimal consideration with respect to the violations cited on September 27,
1978. I note, however, that a more significant series of violations occurred
on September 27, 1978, that have become final as of this date and for which
I have given consideration in assessing penalties for violations that were
cited on dates subsequent to September 27, 1978. There is no contention in
these cases that the operator's ability to continue in business will be
affected by the penalties.
Upon consideration of the entire record and the foregoing findings and
conclusions, and in light of the criteria set forth in section llO(i) of the
Act, I find that the following penalties are warranted:

1070

I.

Docket No. WILK 79-144-PM

Citation No.

Date

30 C.F.R.
Standard

210526
210527
210532
210533
210534
210539
210540
210554
210555
210556
210559
210561
210569
210565
210568
210570
210571
210572
210573
210575

09/27/78
09/27/78
09/27/78
09/27/78
09/27/78
09/27/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78
10/18/78

56.14-1
56.14-1
56.14-1
56.11-2
56.14-1
56.14-1
56.12-32
56.14-6
56.14-1
56.14-1
56.12-34
56.12-32
56.12-34
56.9-2
56.9-22
56.9-71
56.9-2
56.9-2
56.9-2
56.12-2

II.

Penalty
.c.

.L

$195
195
150
122
150
150
95
150
150
150
114
114
100
150
150
150
125
125
150
114

Docket No. WILK 79-145-PM

Citation No.

Date

30 C.F.R.
Standard

Penalty

210576

11/28/78

109(a)

$ 72

ORDER

Paul A. Germain, Esq., Germain & Germain, 314 East Fayette Street,
Syracuse, NY 13202 (Certified Mail)

1071

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

'l

MAY 1980
Civil Penalty Proceedings

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

Docket No. CENT 79-29
A.C. No. 23-00402-03005

Petitioner

v.
Docket No. CENT 79-221
A.C. No. 23-00402-03011

PEABODY COAL COMPANY,
Respondent

Power Mine
DECISION
Appearances:

Robert s. Bass, Esq., Office of the Solicitor, U.S. Department
of Labor, Kansas City, Missouri, for Petitioner;
Thomas Gallagher, Esq., St. Louis, Missouri, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This matter involves two proceedings 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),

to assess civil penalties against Peabody Coal Company (herein-

after, Peabody) for violation of a mandatory safety standard.
were consolidated prior to hearing.

The cases

The petitions allege a total of five

violations of 30 C.F.R. § 77.1607(aa), failure to properly trim trucks
which are loaded higher than their cargo space.

A hearing was held in

Kansas City, Missouri, on February 6 and February 7, 1980.

1072

Lester Coleman

testified on behalf of MSHA.

Larry Womble, Fred Gallo, and Ron Kelly tes-

tified on behalf of·Peabody.

Both parties waived their rights to file

briefs, proposed findings of fact, and conclusions of law.

Instead, they

made oral arguments at the conclusion of the taking of testimony.
This matter involves the alleged violation of 30 C.F.R.

§

77.1607(aa),

failure to properly trim haulage trucks which are loaded higher than their
cargo space.

Three citations were isued for this alleged violation on

November 27, 1978, and two orders of withdrawal were issued for the same
alleged violation on February 27, 1979.

MSHA contends that, at all times,

large chunks of coal were found above and near the edge of the cargo area.
Peabody does not dispute the testimony concerning the size and location of
the coal chunks but contends that there are no published guidelines or standards for trimming haulage trucks and, therefore, the industry standard of
loading the trucks until the coal seeks its "angle of repose" applies.'
ISSUES
Whether Peabody violated the Act or regulations as charged by MSHA and,
if so, the amount of the civil penalties which should be assessed.
APPLICABLE LAW
30 C.F.R. § 77.1607(aa) provides as follows:

"Railroad cars and all

trucks shall be trimmed properly when they have been loaded higher than the
confines of their cargo space."
Section llO(i) of the Act provides in pertinent part as follows:

1073

In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
STIPULATIONS
The parties stipulated the following:
1.

The Commission has jurisdiction of this proceeding;

2.

Respondent is an operator within the meaning of the Act;

3.

Respondent's mine is a mine within the meaning of the Act;

4.
waived;

Any objections to the foundation of exhibits to be offered are

5. The only issue of fact is whether or not respondent properly
trimmed its haulage trucks on the dates in question;
6. The only issues of law are whether the standard applies to
respondent and, if so, did respondent violate the standard;

7. The coal on all five haulage trucks was no more than 3 feet above
the confines of the cargo areas.

SUMMARY OF THE EVIDENCE
In response to an anonymous written complaint, MSHA inspector Lester
Coleman was directed to make an inspection of Peabody's Power Mine, a surface mine, concerning an allegation of coal falling off haulage trucks due
to overloading.

On November 27, 1978, he arrived at the mine.

On the

haulage road between the pit and the dumping area, he stopped and inspected
three 100-ton haulage trucks.

On each truck, he observed that coal was

1074

piled higher than the confines of the cargo area.

The highest point of the

coal was in the center of the cargo area and was described as a "graveyard
hump."

On each truck, he observed large chunks of coal weighing up to

30 pounds at various places above the confines 9f the cargo area.

None of

the trucks had any "free board" or unloaded areas around the edge of the
cargo area.

He concluded that the three trucks were not properly trimmed

since any of these large chunks of coal could fall off the truck and strike
miners or small vehicles using the roadway.

He described the haulage road

as well-maintained, but it crossed two railroad tracks and two paved county
roads.

The haulage road went over hills and around curves.

The only person

who might be struck by falling coal was the miner who worked on foot in
the dumping area.
§

He issued three citations for a violation of 30 C.F.R.

77.1607(aa).
On

February 27, 1979, Inspector Coleman returned to the Power Mine for

a regular inspection.

On this occasion, he stopped two haulage trucks and

found the same conditions concerning large chunks of coal piled above the
-confines of the cargo area with no "freeboard."

Thereupon, he issued two

orders of withdrawal pursuant to section 104(d)(2) of the Act.
Inspector Coleman admitted that he did not observe any chunks of coal
on the haulage road during either of his inspections.
coal on the back of the truck beds.

There were chunks of

Although the inspector's statement

covering Citation No. 390749 indicates that persons on foot in the pit area
where coal is loaded may be exposed to falling coal, he conceded that he did
not visit the pit on November 27, 1978, and did not know if there were

1075

persons on foot there.
trucks at this mine.

He never witnessed any coal falling off haulage
He believed that the haulage t:rucks vibrated "heavily."

He conceded that such vibrations were not visible.

He believed that the

failure to trim the trucks should have been detected by the pit foreman.
Inspector Coleman testified that compliance with the regulation in controversy required the operator to leave an area of "freeboard" if large
chunks of coal are piled higher than the confines of the cargo area or to
remove or break up the large chunks of coal if there is no "freeboard."

He

conceded that there were no written MSHA guidelines to support his opinion
concerning "freeboard" and the removal or breaking up of large chunks of
coal.
Larry Womble, a health and safety supervisor for Peabody, testified
that he accompanied Inspector Coleman on his inspection.

He confirmed that

the coal was heaped in the center of the cargo space and sloped downward
until the coal came to rest on the edge of the cargo space.
this as the "angle of repose" of the coal.

He described

The peak in the center of the

cargo area was estimated to be approximately 3 feet above the cargo space
in all the trucks.

The loader operators at the pit load the truck from front

to rear until coal rests on the outer edges of the cargo body.

No miners

work on foot in the immediate loading area. At no time, did he observe any
coal falling off the trucks. He testified that the haulage road was approximately 6 miles long and was 50 to 70 feet wide.

The width of the road

resulted in 7 to 20 feet of clearance between passing vehicles.
no accidents caused by coal falling from a truck.

He knew of

Prior to August 1978, the

Power Mine had 332 mandays of inspection prior to the issuance of the first

1076

citation for a violation of 30 C.F.R. § 77.1607(aa).
the inspector's interpretation of the regulation.

He did not agree with

He did not believe that

it was feasible to use a loader to remove large chunks of coal or trim the
load.
Fred Gallo, assistant superintendent of the Power Mine, testified that
he observed the same conditions of the haulage truck as were described by
Inspector Coleman and Larry Womble.

It had been Peabody's practice to leave

no "freeboard" in loading its haulage trucks.

He believed that compliance

with Inspector Coleman's interpretation of the regulations was costing
Peabody 5 to 8 tons on each load.

He testified that the loading equipment

was not sufficiently mobile to remove large chunks of coal from the truck.
It would be extremely hazardous to place a miner on the truck bed to trim
the load manually.

He believed that Peabody was following the industry

standard in loading its trucks.

He did not believe that Peabody's loading

procedures presented a danger to anyone.
While Mr. Gallo testified that a loader could tamp large pieces o~ coal
and break them up, this procedure would "destroy the load" because it would
push coal to the side away from the loader.

However, he conceded that if a

large piece of coal was sticking up out of the load, such a piece could be
picked out by the loader.

To his knowledge, this process of picking out

large chunks of coal was not known to exist anywhere in the industry.
Ron Kelly, safety manager for Peabody's West Central Division, testified that he requested and obtained a computer printout of all falling material accidents in 1978 from MSHA.

He received this printout (Exh. R-9) and

1077

: found only two reports of accidents involving coal falling off a haulage
truck.

In Mr. Kelly's 11 years of coal mine safety experience, he never

· .. beard of an accident at Peabody involving falling coal from a haulage truck.
· ln his opinion, the Peabody practice of loading haulage trucks did not
present a hazard to anyone.
MSHA introduced in evidence descriptions of large chunks of coal pre· .. ·• ..

pared by Inspector Lester Coleman at the time of his inspection.

These

chunks of coal were estimated to be 24 inches by 18 inches and 20 inches by
. 16 inches (Exb. G-4).

MSHA also introduced a computer printout of the. bis-

tory of Peabody's Power Mine for the 10-year period prior to November 27,
·> 1978,

and February 27, 1979.

That document showed one prior violation of

·. 30 C.F.R. I 77.1607(aa) (Exh. G-5).

Peabody presented evidence that the

height of the top of the cargo area on its haulage trucks varied from
11 feet 4 inches to 14 feet 7 inches (Exhs. R-7, R-8).

Peabody also intro-

·duced in evidence MSHA's admission that there are no written memoranda,
guidelines, opinions, or other written instructions concerning the construe·. tion, application, or implementation of 30 C.F .R.

§

77 .1607(aa) (Exh. R-10).

EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of counsel
have been considered.

The evidence shows that on November 27, 1978, and

February 27, 1979, MSHA inspector Larry Coleman inspected a total of five
haulage trucks at Peabody's Power Mine and found each of them to be in viola· tion of 30 C.F.R. § 77.1607(aa).

It is undisputed that each of the trucks·

vas loaded with coal higher than the confines of the cargo space.

1078

It is also

undisputed that there were large chunks of coal weighing up to 30 pounds each
on the slope above the confines of the cargo space and no area of freeboard
around the edge of the cargo area which would have prevented any chunk of
coal from falling out of the cargo area.

Under these facts, MSHA alleges a

violation of 30 C.F.R. § 77.1607(aa) in failing to properly trim the trucks.
The regulation on its ·face applies to "all trucks."

Peabody asserts that

these facts fail to establish a violation of the above regulation because
there are no published guidelines or standards concerning the regulation and,
therefore, MSHA must accept the industry standard of loading the trucks until
the coal reaches its "angle of repose." Peabody further asserts that the
inspector's requirement of allowing "freeboard" or, in the alternative,
removing large chunks of coal above the confines of the cargo area is
infeasible.

In conclusion, it is Peabody's position that a haulage truck is

"trimmed properly" when the coal reaches its "angle of repose."
The "angle of repose" is defined as follows:

"[T]he maximum slope at

which a heap of any loose or fragmented solid material will stand without
sliding or come to rest when poured or dumped in a pile or on a slope."
Dictionary of Mining, Mineral, and Related Terms, Bureau of Mines, U.S.
Department of the Interior (1968).

In essence, Peabody argues that a

haulage truck may be ·loaded to its maximum slope where no loose coal will
slide down the slope.

Acceptance of this argument would render the regula-

tion in controversy meaningless since there would be no duty to properly
trim any load.

Moreover, it ignores the fact that this heap of coal will

not remain stationary.

The undisputed evidence shows that the haulage

trucks at the Power Mine traverse hills, curves and railroad tracks.

1079

It

is also undisputed that the trucks vibrate while in transit.

While it is

true that there is no direct evidence of any chunks of coal falling off
any of the involved trucks, MSHA is not required to await the occurrence
of an accident before promulgating regulations to prevent such accidents.
The documentary evidence offered by Peabody establishes at least one
personal injury accident when a miner was struck by coal falling from a
haulage truck.

Peabody's proposed construction of 30 C.F.R. § 77.1706(aa)

that haulage trucks may be loaded to their "angle of repose" is rejected.
Rather, the reg~lation, on its face, permits loading haulage trucks above
the confines of their cargo space only if they are "trimmed properly."
The term "trimmed properly" is not defined in the Act or regulations.
"Trim" is defined as "to free of excess or extraneous matter by or as if
by cutting."

Webster's New Collegiate Dictionary (1979).

Hence, the term

"trimmed properly" as used in 30 C.F.R. § 77.1607(aa) means that excess
coal must be removed from trucks which are loaded higher than the confines
of their cargo space to prevent such coal from falling off the trucks.

The

evidence of record indicates that there are several ways to properly trim
a truck, to wit, leaving an area of "freeboard" around the cargo area to
confine falling chunks of coal, removing large chunks of coal from the top
of the pile above the cargo area, and breaking up large chunks of coal.
Therefore, Peabody's assertion that it is not feasible to comply with the
regulation is rejected.
I conclude that MSHA has established five violations of 30 C.F.R.
§

77 .1607(aa) by Peabody in that the haulage trucks were not "trimmed prop-

erly."

This is so because in each instance, coal was loaded higher than

1080

the cargo area with large chunks of coal weighing up to 30 pounds on top
of the pile with no freeboard to confine such coal within the cargo area.
Since violations have been established, the next issue is the amount of
the civil penalties to be assessed for such violations.

Section llO(i) of

the Act sets forth six criteria to be considered in determining the amount
of the civil penalty.
Peabody's prior history shows 49 violations in the 2 years prior to
November 27, 1978, and 66 violations in the 2 years prior to February 27,
1979.

Of those numbers, only one violation was of the regulation in

controversy here.
Peabody is a large operator.

The assessment of civil penalties herein

will not affect its ability to continue in business.
Peabody was negligent in failing to properly trim its haulage trucks
when such a procedure was mandated by the regulation in controversy.

Under

all the facts of this case, Peabody's negligence amounts to ordinary
negligence.
In determining the gravity of the violations, consideration must include
the following:

(1) the likelihood of injury; (2) the number of workers

exposed to su~h potential injury; and (3) the severity of potential injuries.
In the instant case, the likelihood of injury as a result of coal falling
from a haulage truck is slight.

Only one worker was exposed to such a risk.

Considering the fact that a 30-pound chunk of coal could fall from a

1081

distance of more than 15 feet, the severity of potential injuries is moderate.

Hence, the gravity of these violations is in the range of slight to

moderate.
After notification of the first three violations, Peabody promptly
abated those violations.

However, it resumed its prior practice of not

trimming the trucks and two withdrawal orders were issued 3 months later.
While these facts do not demonstrate good faith compliance, I find that
Peabody challenged these violations on the good faith belief that its trucks
were properly trimmed.
Based upon all of the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that civil penalties should be imposed
for the violations found to have occurred as follows:
Citation or
Order No.

Date

390749
390750
390751
792415
792416

11-27-78
11-27-78
11-27-78
02-27-79
02-27-79

30 C.F.R.
Standard

Penalty

77.1607(aa)
77.1607(aa)
77 .1607(aa)
77.1607(aa)
77 .1607(aa)
Total

200
200
200
200
200
$1,000
$

ORDER
Wherefore, it is ORDERED that respondent pay the sum of $1,000 within
30 days of the date of this decision as a civil penalty for five violations
of 30 C.F.R. § 77.1607(aa).

1082

Distribution:
Robert S. Bass, Esq., Office of the Solicitor, U.S. Department of Labor,
911 Walnut St., Room 2106, Kansas City, MO 64106 (Certified Mail)
Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235,
St. Louis, MO 63166 (Certified Mail)

1083

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

(703) 756-6210/11 /12

9

MAY 1980
Contest of Order

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. PENN 80-16-R
Order No. 0618634
May 25, 1979

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

Renton Mine

Civil Penalty Proceeding

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

Docket No. PENN 80-18
A.O. No. 36-00807-03029V
Renton Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

DECISION AND ORDER
The captioned consolidated contest/penalty proceeding came on for
a prehearing/settlement conference on May 8, 1980, in the United States
Courthouse in the District of Columbia.
On the basis of concessions made by the mine inspector in the
course of prehearing disclosure, counsel for the operator, at the
invitation of the Presiding Judge, moved to vacate the subject unwarrantable
failure closure order and to dismiss the proposal for civil penalty.
After hearing argument from counsel for both parties, the motion
was granted. The Presiding Judge found a mine foreman's statement of
intent at some future time to use a mining method violative of the operator's
approved roof control plan is legally insufficient to support a charge
of violation of the plan under 30 C.F.R. 75.200.
Accordingly, it is ORDERED th~t the bench decision be, and hereby is,
ADOPTED and CONFIRMED as the final decision in this matter. It is FURTHER
ORDERED that the Order No. 618634
is VACATED, and the
proposal for penalty DISMISSED.

Joseph B. Kennedy
Administrative Law Judge

1084

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

1085

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

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

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

SIERRA READY MIX AND CONTRACTING
COMPANY,
Respondent.

1 3 MAY 19BO

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-250-M
A/O NO. 02-01746-05003
Mine:

Sand and Gravel Operation

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

DECISION
Before:

Administrative Law Judge Vail
Statement of the Case

The proceeding arose upon the filing of a petition for the
assessment of civil penalty (now called a proposal for a penalty, 29 CFR
2700.27) for five alleged violations of Mandatory Safety Standards contained
in 30 CFR Part 56.

The violations were charged in citations issued to

Respondent following an inspection of the Sierra Ready Mix Sand and Gravel
operation in Cochise County, Arizona on February 13 and 14, 1979.
Pursuant to notice, a hearing on the merits was held in Tuscon,
Arizona, on February 8, 1980.

Mildred L. Wheeler, Esq., Office of the

Solicitor, United States Department of Labor, San Francisco, California
appeared as Counsel for the Petitioner.

Peter Ranke, Comptroller for the

Respondent, attended the hearing solely for the purpose of requesting a
continuance thereof stating the reason being that the Respondent had not
received adequate notice of the date of hearing.

1086

The request for a continuance of the hearing was denied for the
reason that two written notices of hearing had been mailed to the Respondent
. '::·

advising it of the date, time, and place of hearing as well as several
telephone conversations held between Mr. Ranke and an employee of the
Judge's office in Denver, Colorado.

The original notice of jurisdiction

dated January 2, 1980 was sent to the Respondent advising him that the case:
had been assigned to the undersigned in the Denver, Colorado office.

A

subsequent Notice of Hearing setting the date, time, and place was sent to ·
the Respondent on January 18, 1980.

An Amended Notice of Hearing was mailed

to the Respondent on January 18, 1980 more specifically advising it of the
room number where the hearing was to be held.

Several telephone

conversations were held with Mr. Ranke prior to the hearing and also with
representative of Congressman Udall's office regarding the hearing.

a

Mr.

Ranke maintains he did not receive the two notices of hearing and that he
::)
did not have time to secure an attorney or prepare his witnesses. These
arguments are rejected as the two notices were mailed to the address stated.
on the Respondent's letterhead used in filing an Answer to the Petition.
This is also the town where the plant is located.

Further, the Petition was

mailed to the Respondent on August 27, 1979 and Notice of Jurisdiction on
January 2, 1980 affording the Respondent adequate time to secure an attorney·
and prepare his defense in this matter.

On the date set for the hearing,

the counsel for the Petitioner appeared with her witnesses ready to proceed
with the hearing.

For all of the above reasons the request for a

continuance was denied and the Petitioner presented its case.
The record establishes that the area of Respondent's plant inspected on·
February 13

and 14, 1979 involved the wash plant located in the north part

I.

1087

of Sierra Vista, Arizona.

There were three employees located at that

location and according to Exhibit ''A'' of the proposal for assessment of
civil penalties, the size of the Respondent is determined to involve 63968
tons or man hours. per year.
Findings of Fact
1.

Citation No. 378663, issued on February 13, 1979, alleged a

violation of mandatory standard 30 CFR 56.9-7 which requires emergency stop
devices or cords along the full length of unguarded conveyors with walkways.
Mine inspector Thomas Aldrete testified that he was the inspector who viewed
the Respondent's premises on the dates involved herein and that regarding
Citation No. 378663, he observed a walkway, approximately 10 feet long, next
to the main feed conveyor belt which was not guarded or supplied with a stop
cord.

He issued the above citation.

The violation was abated by having a

stop cord installed.
2.

Citation No. 378665, issued on February 13, 1979, alleged a

violation of mandatory standard No. 30 CFR 56.12-32 which requires that
inspection and cover plates on electrical equipment and junction boxes shall
be kept in place at all times except during testing or repairs.

Inspector

Aldrete testified that a vibrator motor junction box cover was missing on
the main feed conveyor for the wash plant.

This violation was abated by

installing a cover on the junction box.
3.

Citation No. 378667, issued on February 13, 1979, alleged a

violation of mandatory safety standard 30 CFR 56.09-7 which requires
emergency stop devices or cords along the full length of unguarded conveyor
.with walkways.

Inspector Aldrete testified that in this situation the

1088

/

walkway along the conveyor to the scale shed was not equipped with an
emergency stop cord.
4.

This citation was abated by installing a stop cord.

Citation No. 378669, issued February 13, 1979, alleged a violation

of 56.12-28 which requires that continuity and resistance of grounding
systems be tested innnediately after installation, repair, and modification,
and annually thereafter.

A record of the resistance measured during the

most recent test shall be made available on a request by the Secretary or
his duly authorized representative.

Inspector Aldrete testified that no

records could be found by the Respondent at the t_ime of his inspection of
the electrical continuity checks.

The violation was abated by a continuity

and resistance of grounding check being performed on February 20, 1979 and
record made thereof.
5.

Citation No., 378672, issued on February 14, 1979, alleged a

violation of mandatory standard 30 CFR 56. 5-50 which restricts the noise
level to wh:ich employees may be exposed.

Inspector Aldrete testified that

an employee operator of a tractor was exposed to 161.4 percent noise of the
permissible time limit value allowable.

This violation was abated by the

installation of a lexan windshield, extension of the exhaust pipe of the fan
loader on top of the cab of the tractor, and installation of acoustical
material on the floorboards.
Appropriate Penalties
The Respondent, in its letter dated September 13, 1979, contested the
above described citations and assessments.

However, Respondent failed to

submit evidence to refute the testimony of the Petitioner's witnesses.
find that the violations existed.

I

In considering the amount of the penalty,

I have determined that the operator is small in size (having only three

1089

'
employees _at the site involved) that it has a history of one prior
violation, and that the penalties would have no affect on its ability to
remain in business.

Each of the cited violations was promptly abated.

Citation Nos. 378663 and 378667 each charge one violation of 30 CFR
56.9-7 (requiring that unguarded conveyors with walkways be equipped with
emergency stop devices along their full length).

I find that the likelihood

of injury here was probable in that an employee could easily slip or fall
against the conveyor and be caught in the rollers.
be serious, involving potential disability.

Resulting injuries could

Negligence existed in that the

operator should readily have seen the unguarded conveyor.

A penalty of

$24.00 for Citation No. 378663 and $34.00 for Citation No. 378667 is
appropriate.
Citation No. 378665 charges one violation of 30 CFR 56.12-32 (requiring
inspection and cover plates on electrical equipment and junction boxes be
kept in place except during testing or repairs).

A vibrator motor junction

box cover was missing on the main feed conveyor exposing the electrical
wires inside which could allow the wires to rub on the outer rim of the open
junc~ion

box and possibly tear the insulation.

This could eventually cause

the junction box and frame work nearby to become energized, which could
result in serious and possibly fatal injury due to electrical shock to an
employee coming in contact with this.

Negligence existed in that the

operator should have seen that this cover was off.

A penalty of $30.00 is

appropriate.
Citation No. 378669 charges one violation of 30 CFR 56.12-28 (requiring
continuity and resistance test of the grounding system and a record kept
thereof).

The hazard involved here is that any modification, repair, or

installation of a new electrical motor requires that the electrical system

1090

be checked for continuity of grounding and resistance for if it is
improper, employees can be exposed to electrical shock and serious or fatal
injury.

Negligence existed in that the operator should have performed this

function and kept proper records thereof.

A penalty of $30.00 is

appropriate.
Citation No. 378672 charges one violation of 30 CFR 56.5-50 (relating
to exposure of employees to noise in excess of specified amounts).

I find

that the employee checked for noise level on the front end loader was
exposed to excessive noise levels.

The operator abated this condition with

appropriate modifications and the negligence was slight.

A penalty of

$18.00 is appropriate.
ORDER
WHEREFORE, it is ordered that Respondent pay the penalty of $136.00
within 30 days of the date of this decision.

Virgil' E. Vail
Admi~istrative Law Judge
Distribution:
Mr. Peter Ranke, Controller, Sierra Ready Mix and Contracting Company, P. O.
Box 520, Sierra Vista, Arizona 85635.
Mildred Wheeler, Esq., United States Department of Labor, 11071 Federal
Building, 450 Golden Gate Avenue, Box 36017, San Francisco, California
94102

1091

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. CC:LF AX AVENUE
DENVE'i, ~L~~o9dffljo4

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

)
)
)

Petitioner,

)

)
)
)

v.
SCHNEIDERS READY MIX, INCORPORATED,

Civil Penalty Docket
DOCKET NO. WEST 79-69-M
MSHA CASE NO. 05-01027-050051

)

)
)
Respondent.
~~~~~~~~~~~~~~~~~->

Mine:

Schneiders Pit and Plant

APPEARANCES:
Phyllis K. Caldwell, Esq., Office of the Regional Solicitor, United
States Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294
for the Petitioner,
Frank J. Woodrow, Esq., 144 South Uncompahgre Avenue, P.O. Box 327,
Montrose, Colorado 81401
for the Respondent.
BEFORE:

Judge Jon D. Boltz
STATEMENT OF THE CASE

The Petitioner seeks to assess a penalty against the Respondent for
1
its ~lleged violation of 30 CFR § 56.14-1 •

The Petitioner attached as an

exhibit to the proposal for penalty citation number 328084, issued September
13, 1978, in which it is stated that the troughing rollers on the main feeder
conveyor belt were not guarded and an employee was injured when his arm was
pulled into the rollers.
By way of answer the Respondent admits that an employee of the Respondent
was injured on August 17, 1978, but alleges that the injury involved was caused
by the intentional misconduct of the employee and not by a dangerous condition
or by unprotected equipment.
_!/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.

1092

Pursuant to notice a hearing was held on the merits on March 19,
1980, at Montrose, Colorado.

At the conclusion of the hearing the

parties agreed that they would not prepare any post hearing submissions
for filing and that written decision would be issued after the transcript
of the proceeding was filed.

The transcript having been received, I

issue the following decision.
ISSUE
Did the conveyor and rollers constitute equipment with exposed
moving machine parts which might be contacted by persons and might cause
injury and thus constitute a violation of 30 CFR § 56.141?
FINDINGS OF FACT
The following findings of fact are uncontroverted:
1.

At all times relevant to these proceedings and in the course of

its business the Respondent conducted a gravel and rock crushing operation.
2.

One structure referred to as the feeder house had a hopper next

to a loading ramp (Exhibit 2) and the rock and gravel material were fed
through the hopper onto a conveyor belt in the feeder house.
3.

c

The conveyor belt unit within the feeder house compartment

allowed clearance of a maximum of 2 1/2 to 3 feet (Tr. 12, 13) where an
individual could walk around three sides of the conveyor belt and it was
approximately 6 feet from the level of the floor to the ceiling.
4.

The end of the conveyor belt unit under the feeder or hopper is

approximately 3 feet above the level of the floor and after traveling an
incline distance of approximately 5 1/2 feet the conveyor is approximately
5 feet 4 inches above the floor level and is approximately at ceiling
level 6 feet above the floor at the point that tffe conveyor leaves the
feeder house compartment.

1093

5.

On August 17, 1978, an employee of the Respondent was injured

when his left hand and arm were pulled into the operating conveyor belt
and a supporting roller approximately 5 feet 4 inches above the floor
level in the feeder house.
6.

After the citation was issued on September 13, 1978, the Respondent

installed a guard made of plywood approximately 1/2 inch thick, 2 feet
wide, and 6 to 8 feet long, and installed it onto the conveyor belt
unit.
DISCUSSION AND CONCLUSIONS OF LAW
There is no evidence to support the allegations of the Respondent
that the injury to Lee A. Pinover, the employee of the Respondent, was
caused by the intentional misconduct of Mr. Pinover.

The only witness

to the incident was Mr. Pinover himself since no other personnel were
present in the feeder house at the time of the injury.

I found the

testimony of Mr. Pinover entirely credible.
Mr. Pinover testified that he had spent- several minutes in the area
of the conveyor belt using a large square shovel to clean up rocks from
the concrete floor.'~· When he attempted to scrape off an accumulation
from the conveyor frame his shovel became lodged in the framework and
when he reached with his left hand to free the shovel, his hand got
caught between the roller and the conveyor belt.

His hand and arm were

pulled through the roller and belt up to his shoulder.

Although Mr.

Pinover screamed and shouted for help (Tr. 46) no one could see or hear
him due to the noise and the fact that the person who could shut off the
conveyor belt was not within sight of Mr. Pinover.

With his left arm

caught, Mr. Pinover reached for a switch box on the wall and started
pushing buttons in order to turn off the power.

1094

His arm was caught for

a minute or so before the belt finally stopped.

It was turned off by

the crusher operator after he discovered Mr. Pinover's predicament (Tr.

78).
Even if Mr. Pinover had not gotten caught in the conveyor belt and
roller, a dangerous condition was shown to exist for anyone working
around the

conveyor because of the exposed moving machine parts which

might be contacted by persons and might cause injury.

Any person working

with a shovel cleaning up around the conveyor had only 2 1/2 to 3 feet
of room as working space at the side or end of the conveyor.

Because of

this condition the conveyor belt should have been guarded in order to
protect those persons who might get caught in the conveyor or rollers.
The foreman and part owner of the Respondent testified that it did
not occur to him to install guard material on the conveyor even after
Mr. Pinover was injured because he did not consider the condition a
hazard.

He testified further that he had been around equipment all his

life and "you just don't get into these situations."

(Tr. 69.)

The

injured employee, Mr. Pinover, was 15 years old at the time of the
accident and 16 years old at the time of the hearing, although the
Respondent may not have known of Mr. Pinover's age when he was hired
part-time (Tr. 53).

Mr. Pinover stated at the time of the hearing that

he was 6 feet 3 inches tall and weighed 230 pounds and that he had grown
some since the accident.

Whether or not the 15 year old employee was

careless and caused his own injury is not relevant.

The question is

whether or not there were exposed machine parts which might be contacted
by persons and which might cause injury.

1095

The precise purpose of installing

the guard is to prevent the accidental injury to persons near the machinery
such as occurred to this employee.

Therefore, I conclude that the

Respondent did violate 30 CFR § 56.14-1 as set forth in citation number
328084.
PENALTY ASSESSMENT
Stipulation as to size, history and ability to continue.
The parties stipulated to the following:

(1)

The company size is

11,054 man hours per year, (2) the history is eight assessed violations
in the previous 2 years during three inspection days, and (3) the penalty
assesed will not effect the operator's ability to continue business.

I

therefore conclude that the Respondent's gravel and rock crushing business
is a small sized operation and that there is a history of a small number
of violations.
Gravity
The gravity of a safety violation must be measured by:

(1) the

likelihood that it will result in injuries, (2) the number of workers
potentially exposed to such injuries, and (3) the severity of potential
injuries Cleveland Cliffs Iron Company v MSHA, et al, Docket No. VINC
79-68-M, December 3, 1979.
The number of workers exposed is not large in that only one person
would be working in the cleanup area.

Only seven persons worked in the

entire gravel and rock crushing operation.
potential injuries likely to result is high.

However, the severity of
I conclude the violation

was moderately severe.
Negligence and Good Faith
I find the operator was negligent.

The operator did not consider

that there was a hazard present and thus did not install guards until
after the citation was issued on September 13, 1978, even though a

1096

serious injury occurred to a worker on August 17, 1978.

The operator

demonstrated good faith in attempting to achieve rapid compliance after
notification of the violation by promptly installing plywood guards
along the conveyor unit.
Based on the testimony and exhibits introduced at the hearing and
considering the criteria set forth in Section llO(i) of the Federal Mine
Safety and Health Act of 1977, I conclude that a civil penalty of $800
should be imposed for the violation found to have occurred.
ORDER
It is ordered that the Respondent pay a penalty of $800 within 30
days from the date of th~s decision.

IJ<Sn D. Boltz
vAdministrative Law Judge
Distribution:
Phyllis K, Caldwell, Esq. Office of the Regional Solicitor, United
States Department of Labor, 1585 Federal Building, 1961 Stout Str·eet,
Denver, Colorado 80294
Frank J. Woodrow, Esq., 144 South Uncompahgre Avenue, P.O. Box 327,
Montrose, Colorado 81401

1097

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

1 4 MAY 1980
)
)
)
)
)
)
)
)
)
)
)
)
)
)

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

CIVIL PENALTY PROCEEDING
DOCKET 'NO. WEST 79-167-M
A/O NO. 48-00152-05006
Mine:

FMC Mine

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

DECISION
APPEARANCES:
James H. Barkley, Esq., Office of the Regional Solicitor,
United States Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, Colorado 80294
for the Petitioner,
Clayton J. Parr, Esq., Martineau, Rooker, Larsen and
Kimball, 1800 Beneficial Life Tower, 36 South State
Street, Salt Lake City, Utah 84111
for the Respondent.
Before Judge Jon D. Boltz
Statement of the Case:
Petitioner seeks an order assessing civil penalties against. the
Respondent for Respondent's alleged violations of 30 CFR 57.9-321 and 30
CFR 57.21-782.

These penalties were proposed pursuant to proceedings

provided for by provisions of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 80l~seq.

1/

"Mandatory. Dippers, buckets, scraper blades, and similar movable parts
sha 11 be secured or lowered to the ground when not in use. 11

2/

"Mandatory. Only permissible equipment maintained in permissible
condition shall be used beyond the last open crosscut or in places
where dangerous quantities of flanunable gases are present or may enter
the air current."

1098

The Respondent is charged in Citation 336428 with having
violated 30 CFR 57.9-32 in that its roof bolter was parked with the boom
elevated.

In addition, Respondent is charged in Citation No. 336443 with

failure to maintain its loading machine in a permissible condition in
violation of 30 CFR 57.21-78.
The Respondent contends that standard 57.9-32 is not applicable to the
roof bolter because that equipment is used to drill holes and set roof bolts
and not used for "loading, hauling, and dumping" consistent with the heading
of section 57.9.

Also, Respondent contends that it did not violate section

57.21-78 because the loading machine in question had been tagged and was
voluntarily taken out of service for repairs prior to the inspection and
issuance of the citation by Petitioner's mine inspector.
Pursuant to notice, a hearing was held on the merits in Salt Lak~ City,
Utah on February 20, 1980.

The transcript of the proceedings was filed. with

my office on March 7, 1980.

Respondent filed its post-hearing brief on

April 4, 1980.

Petitioner waived the filing of a post-hearing brief.

Issues:
1.

In regard to Citation No. 336428, the issue is whether the roof

bolter is the type of equipment contemplated in 30 CFR 57.9-32, and, if so,
whether its "movable parts" were properly secured or lowered to the ground
when not in use.
2.

In regard to Citation No. 336443, the issue is whether the

Respondent's loading machine, which was tagged out of service and thus not
"permissible equipment" at the time of the inspection, had been used by the
Respondent in such condition prior to the inspection.

1099

CITATION 336428
Findings of Fact:
1.

During the course of a regular inspection of Respondent's coal mine

on December 21, 1978, a MSHA inspector observed an unattended roof bolting
machine in a working area of the mine.
2.

(Tr. 14).

The roof bolter is an electrically powered machine used fo·r

installing roof bolts in a mine and roof bolts are used as a means of
support for the roof.
3.

(Tr. 12).

A boom approximately 8 feet long is mounted on the roof bolter so

that the operator can move the "drill around and drill holes at various
angles in the mine. 11
4.

(Tr. 13).

Attached to the boom is the "rack" (Tr. 20) which is about 6 feet

long and contains the drilling and bolting machinery.
5.

The rack may be rotated from the boom to a vertical position in

order in install roof bolts.
6.

The MSHA inspector observed the roof bolter with the boom raised

approximately 4 feet off the floor of the mine (Tr. 13) with the rack in a
horizontal position.
7.

(Tr. 20).

In order to abate the citation issued, the rack was rotated to a

vertical position and placed on the ground.
8.

(Tr. 74).

If the boom suddenly fell from its raised position 4 feet above the

ground, it would drop only t foot (Tr. 21, 22) due to a stop built into the
roof bolter.
Discussion:
The provisions of 30 CFR 57.9-32, cited as having been violated, are
not applicable to the roof bolting machine in this case.

1100

The above regulation is included under the general heading of 30
CFR 57.9, entitled "Loading, Hauling, Dumping."

These general words suggest

the intent of including situations in which earth, minerals, or other matter
is moved, loaded, hauled, or dumped.
The words "dippers, buckets, and scraper blades" contained within
section 57.9-32 suggest equipment used to move earth.

(Tr. 25).

However,

the roof bolter is equipment used simply to drill holes and set roof bolts
and does not have the function of moving earth materials.

Additionally, by

the design of the machine utilized by the Respondent, the boom cannot be
lowered any nearer than 3 feet above the ground.
"In the construction of laws ... and other instruments, the
'ejusdem generis rule' is, that where general words follow an
enumeration of ..• things, by words of a particular and specific
meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to •.. things
of the same general kind or class as those specifically
mentioned". Black, Interp. of Laws, 141; Goldsmitti v U.S.,
C.C.A.N.Y., 42 F. 2d 133, 137 (2d Cir. 1930).
Thus, the general words "and similar movable parts" contained in section
57.-9-32 should be construed as applying only to the specifically mentioned
words "dippers, buckets, scraper blades", al 1 of which are used for the
purpose of "loading, hauling, and dumping."

This would not include the

function of the roof bolting machine in question.
CITATION 336443
Findings of Fact:
9.

During the course of inspecting Respondent's mine on January 17,

1979, a MSHA inspector observed a loading machine not in use or operating,
in a crosscut, with a tag or sign on the equipment stating "danger--do not
operate" or words to that effect.

(Tr. 90).

1101

10.

A ... loading machine" is used at the working face of the mine to

load blasted material into shuttle cars which transfer the ore back to a
dumping point.
11.

(Tr. 87).

The Respondent's mine was a gassy mine (Tr. 93, 94) in that there

was methane gas present.
12.

At the time the loading machine was examined by the MSHA inspector

it could not be safely operated within a methane atmosphere due to loose
junction or control boxes which could cause live electrical wires to be
exposed to the methane atmosphere.
13.

(Tr. 95, 96, 97, 98, 99).

At the time of the inspection, the junction or control boxes on the

loader were warm (Tr. 103), and the inspector concluded that the loader had

•

recently been used in the condition in which it was found.
DISCUSSION
Petitioner has the burden of proving by a preponderance of the· evidence
that the loader was not maintained in a permissible condition and was used
beyond the last open crosscut or in places where dangerous quantities of
flammable gases were present or might enter the air current.

The

preponderance of evidence is defined as the greater weight of evidence or
evidence which is more credible and convincing to the mind.
Metcalf, 80 Wis. 193, 49 N.W. 809 (1891).

It is also defined as that

evidence which best accords with reason and probability.
200 F. 332 (

Cir. 1912).

Button v

U.S. v McCaskill,

Petitioner's evidence falls short of a

preponderance.
The MSHA inspector testified that he had no intention of writing the
citation because the loader had been "tagged out", but when he discovered
~hat

the electrical boxes on the loader were still warm, this indicated to

him that the machine "had been operating recently."

1102

(Tr. 91).

Thus, he

concluded that the machine had been operated while not in a permissible
condition in violation of 30 CFR 57.21-78.

The Petitioner also argues:

"[w]e essentially think they (Respondent's employees) saw him (the MSHA
inspector) coming and tagged it (the loader) out, but it had been operating
up to that point in time."

(Tr. 157).

Since the MSHA inspector had not

witnessed the loader in operation, in violation of the cited regulation, it
was necessary to prove the case by circumstantial evidence.

Petitioner's

evidence of violation of the regulation is speculative and insufficient.
Respondent freely admits that it did operate the machine during the previous
shift, before the citation was issued (Tr. 159), and that the machine was
not in a permissible condition when the inspector saw it.

(Tr. 160).

However, because the equipment was tagged out of service by the
Respondent before the inspection took place, I conclude that the Respondent
recognized the deficiencies in the machine and took it out of service,
requiring repairs before it could again be utilized.

Had the equipment not

been posted with the "danger--do not operate" tag and removed from service I
might conclude otherwise, but in this case I do not believe that the
evidence presented by the Petitioner outweighs that presented by the
Respondent.

The evidence presented by the Respondent shows that the loader

was operated during the shift that ended at 7:00 a.m. on the date of the
inspection.

There is no credible evidence upon which to base a conclusion

that the loader was used after that time, up until the inspection was made
at about 9: 55 a. m.

The Respondent alleges that the equipment was "tagged

out" during the last shift, and the Petitioner alleges that the loader
continued to be used in its impermissible condition up until the time that
the inspection was made.

Although the MSHA inspector testified that the

electrical junction boxes on the loader were still warm when inspected,

1103

there is no evidence to show how long it takes after the loader is used
before those electrical junction boxes are cold.
FINDINGS OF FACT
I find the facts to be as stated in paragraphs 1 through 13 of this
decision.
CONCLUSIONS OF LAW
1.

The provisions of 30 CFR 57.9-32, cited as having been violated,

are not applicable to the roof bolting machine in this case and Citation
No. 336428 should be vacated.
2.

The Petitioner failed to prove by a preponderance of the evidence

that the Respondent operated it s loader while it was not in a permissible
condition, in violation of 30 CFR 57.21-78, and thus Citation No. 336443
should be vacated.
ORDER
Based on the foregoing findings of fact and conclusions of law,
Citations No. 336428 and 336443 and any penalties proposed therefore are
vacated.

Distribution:
James H. Barkley, Esq., Office of Regional Solicitor, United States
Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
Clayton J. Parr, Esq., Martineau, Rooker, Larsen and Kimball, 1800
Beneficial Life Tower, 36 South State Street, Salt Lake City, Utah

1104

84111

FEDERAL Mi~~ SAFETY AND HEALTH REYIE¥i'COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

1 5 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. SE 79-75
A/O No. 09-00053-05003
Clinchf ield Mine & Mill

v.
MEDUSA CEMENT COMPANY,
Respondent
Appearances:

Natalie Nelson, Attorney, U.S. Department of Labor,
Atlanta, Georgia, for the petitioner;
Tom w. Daniel, Esquire, Perry, Georgia, for the
respondent.

Before:

Judge Koutras
DECISION
Statement of the Proceedings

These proceedings concern proposals for assessment of civil penalties
filed by the petitioner against the respondent on August 27, 1979, pursuant
to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a), charging the respondent with one alleged violation of mandatory
safety standard 30 C.F.R. § 56.9-2. Respondent filed a timely answer contesting the citation, and a hearing was held in Macon, Georgia, on February 26,
1980. Posthearing briefs were filed by the parties, and the arguments
presented therein have been conside~ed by me in the course of this decision.
Applicable Statutory and Regulatory Provisions
§

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 30 u.s.c.
801, et~·
2.

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

3.

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

The principal issues presented in these proceedings are (1) whether
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalty filed,

1105

and, if so, (2) the appropriate civil penalty that should be assessed
against the respondent for the alleged violation based upon the criteria
set forth in section HO(i) of the Act. Additional issues raised by the
parties are identified and disposed of where appropriate in the course of
these decisions.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance after
notification of the violation.
DISCUSSION
The section 104(a) Citation, No. 096981, April 3, 1979, cites a violation of 30 C.F.R. § 56.9-2, and states as follows: "On the D-562 road
grader, the right steering control arm block was badly worn and needed
to be replaced. There was too much play for safe operation."
Mandatory safety standard 30 C.F.R. § 56.9-2, provides as follows:
"Equipment defects affecting safety shall be corrected before the equipment
is used."
Stipulations
The parties stipulated to the following (Tr. 5-7):
1. The size of the respondent company and the mining operation at
the Clinchfield Mine & Mill stated in terms of annual man hours. The
mine employs approximately 200 people and the respondent company employs
approximately 1,500 and operates four cement plants, including the operation
in question.
2. Payment of the penalty assessed by MSHA will not adversely affect
respondent's ability to remain in business.
Testimony adduced by the parties.
Petitioner
MSHA inspector Steve Manis testified that he conducted an inspection
at the mine in question April 3 through 5, 1979. Upon inspection of
the road grader in question, he observed that on the righthand side, the
steering arm block connected to the drag length was completely worn out.

1106

He confirmed his observations by instructing the operator to move the
steering wheel and .by hand-inspecting the steering drag length, he
observed that the bearings around the pins that fit into the steering
block mechanism were worn, and that the bushings in the steerfng block
were completely worn out. As an experienced grader operator, it was
his opinion that if the pin had broken or fallen out, a loss of steering
on the right-hand side would occur, the wheel would become detached
from the drag length bar and the wheel would go in either direction.
The inspector indicated that the grader is primarily used to keep
the main haulage roads smooth and free of rocks and to grade the roads
and pit area, and it travels across a railroad crossing and a highway
when it travels to the plant area. The principal hazard which would
result in the event the steering mechanism failed would be the inability
of the operator to stay out of the way of trucks, cars, and other equipment, and the operator of the grader or any other vehicle would be
exposed to such a hazard. In addition, loss of steering around an embankment or near the high walls would also expose the grader to the possibility
of going over such an area, and various injuries could result from any
faulty steering (Tr. 11-19).
Inspector Manis testified that when he called the conditiori of the
grader to the attention of mine management, the grader was immediately
taken to the shop for inspection and repairs. Later that day he was
informed that repairs had been made and he went to the shop and confirmed
this fact. He observed the old parts, and confirmed that new parts had
been installed, and upon hand-testing the drag length found no movement.
Upon observation of the old parts, he saw that they were badly worn, that
the pin was almost completely worn out, and that the bushings and bearings
around the pin were completely worn away. After noting his observations,
he issued the citation the next day, April 4, 1979, citing a violation
of section 56.9-2, which requires that all equipment defects be corrected
before the equipment is put into operation for that day or for that shift
(Tr. 20-23).
Inspector Manis indicated that the condition cited was visible upon
inspection, and that it should have been detected during the daily inspection or during a regularly scheduled maintenance or servicing period. The
wear on the steering mechanism was not an "overnight" problem and it may
have taken a month or two for the condition to develop. He discussed the
citation with mine management during a conference and no questions were
raised (Tr. 24).
On cross-examination, Inspector Manis identified a copy of his citation, and his "inspector's statement" (Exhibit R-1). In explanation of
his conclusion that "there was too much play for safe operation" of the
steering control arm block, he indicated that it was so badly worn that
under certain conditions it could fall off. In his opinion the driver
could not safely operate the vehicle in the condition it was in, particularly when he has to steer around other equipment. The roads where the
grader operates is wide enough for two vehicles to pass, but he has never

1107

observed a road grader at the mine getting out of the way of a truck
(Tr. 24-31). He explained the operation of the steering mechanism and
stated that steering loss would not occur to the left wheel in the event
the right-hand block fell off. While the left wheel would still turn
left or right, steering the grader would be difficult because of the loss
of control over the right wheel. He has never driven a grader with a broken
block, and could not state with any certainty whether it could be guided
by the use of only the left wheel. Although he is not a mechanic, he
indicated knowledge as to the mechanics of the steering mechanism on the
grader and how it operates (Tr. 31-36). He believed that loss of steering
would result on the right wheel if the block in question fell out, and
that the grader would be unable to maneuver quickly in an emergency. The
grader was on the main haul road coming towards the pit when he observed
it, and it was approximately one mile from the shop. He permitted the
grader to be driven to the shop, but had he believed the condition were
worse, he would have issued an imminent danger withdrawal order, but that
was not the case (Tr. 37-40).
In response to questions from the bench, Inspector Manis stated that
at the time the citation issued, section 56.9-1, requiring inspection of
equipment each shift and the reporting of any defects found was an advisory
standard and not mandatory. He made no check of any inspection books and
could not recall checking any records regarding the grader. He believed
the condition of the loose steering mechanism could have resulted in an
injury if it was left unattended •. The operator exercised good faith in
rapidly abating the citation and immediately took the grader to the shop.
He could think of no grader equipment defects which would not affect safety.
The travel speed of the grader depends on whether it is actually grading
roads or moving from location to location. When the blade is down, it
moves at slow speed, and the machine in question operates only on mine
property and not on public roads. The grader in question is an older grader
and is not required to be equipped with roll-over protection or seat b!'!lts.
The grader was in operation at the time he stopped it for an inspection
(Tr. 46-54).
Respondent's testimony and evidence
Shep Bass, motor grader operator, testified that he was operating the
grader smoothing off the dump when Inspector Manis stopped him to inspect
the machine. He did not have any steering or operating problems with the
grader that day. Although he has ope·rated the grader on prior occasions,
Mr. Bass did not operate the grader the day before the inspection took place,
and he is required to fill out an inspection form at the end of every shift
regarding the safety condition of the grader (Tr. 55-57).
On cross-examination, Mr. Bass testified that he inspects the grader
when he greases the steering block mechanism about once a week. The last
time he greased the grader was a week prior to the citation. At that time,
he noticed that the steering link was somewhat worn (Tr. 58).

1108

In response to bench questions, Mr. Bass testified that the steering
block mechanism is readily observable. If the steering arm falls off,
there are wheel tilts to control the grader. As an operator, he is not
that concerned about worn steering because the grader cannot operate over
15 miles per hour, and it is never operated on hills, but only on the
haul road and dump. He operates the grader alone and there are no helpers
around. Although there is no pedestrian traffic, there are truck drivers
in the area (Tr. 58-61).
Virgil Jones, diesel mechanic, testified that he replaced the defective
steering mechanism block on the day in question. As a demonstration,
Mr. Jones identified a new block, the pin, and the bushing, and he explained
how they are assembled and operate. He indicated that the block which was
replaced had part of the bearing race still intact, but that the needle
bearings were worn. While installing a new steering mechanism block, he
observed that the top pin and the bushings were in good condition. The bushings were partially off of the bearing race. Although some of the needle
bearings were missing, the needle bearings that were intact were worn. It is
his opinion that i f the steering block mechanism fell off or disintegrated,
he could safely operate the grader because of its low rate of speed and tilt
controls. If the steering block mechanism becomes loose, the .. operator can
use the tilt controls to regulate the inner and outer plate of the wheel.
An operator can use the tilt controls to throw the wheel to the left and take
pressure off of the right wheel. In short, the two controls act as a dummy
guide, and the grader can operate on one wheel. Approximately a week
before the citation issued, he performed maintenance on the left wheel and
observed the worn block on the right side, and since he had ordered
parts they were readily available to replace the worn block. However, he
did not believe it was worn to the point where it created a safety hazard
or was about to fall off or break apart, and in his view, the grader could
operate in a safe condition (Tr. 63-69).
In response to bench questions, Mr. Jones testified that he was with
Inspector Manis when he conducted the equipment inspection, and that
Mr. Manis told him that he had a "sloppy bushing." The grader was then
taken to the shop, and Mr. Jones repaired it. After making the necessary
repairs, he observed that the pin had very little wear and tear on it,
The pin would have to be at least one-eighth of an inch before it was in
danger of breaking. He indicated that the grader could operate with one
wheel missing by means of the tilt controls, and he would have no reservations in operating the grader in the condition it was in at the time
it was cited (Tr. 70-74).
John Fowler, quarry supervisor, testified that he was present when
the motor grader was inspected. Inspector Manis told him that he had a
"sloppy bushing," and parts were available to repair the bushing which
did have "some play in it." He identified photographs of the grader in
question, as well as the bushing (Exhibits R-2 through R-6) (Tr. 75-81).
He stated that company policy requires that defective operating equipment
be reported to a supervisor immediately, and equipment operator's are
required to fill out a daily operator's report, Exhibit R-7, and to submit
it at the end of every shift. They are also required to shut the machine
down (Tr. 81-84).

1109

On cross-examination, Mr. Fowler testified that the equipment report
(Exhibit R-7)-, has been in use for the past 12 years, and maintenance files
are maintained on all equipment. Employees are required to indicate on
the report that a·part needs repair (Tr. 84-85).
In response to bench questions, Mr. Fowler testified that respondent
has an equipment checkup system. Although there is no specific steering box
section, employees should note any steering defects on the report. Steering
is one of those areas of normal operation and normal check. During his
employment, there have been cases where motor grader operators do not fill
out nor submit the required report to mine management (Tr~ 85-87).
Richard P. Kistler, plant manager, expressed the opinion that the
citation is improper because it is based on conjecture that the condition
would lead to an unsafe act. There was. some wear on the top bushing
and assembly, but the bottom pin and bush assembly was tight and there was
no danger of the parts falling apart. Although conceding there was some
wear on the parts, he believed the operator could stop the motor grader
instantly. The normal operating speed for the motor grader with the blade
down is 3 to 5 miles per hour, and the normal speed for the grader with
the blade up is 10 to 12 miles per hour. Company policy dictates that in
the event an employee observes a worn steering condition, that employee must
cease operating the motor grader, inform his supervisor, and correct it.
Management, as well as all employees, are involved in an extensive safety
program (Tr. 91-96). Mr. Kistler identified the photograph, Exhibit R-2,
and indicated that the grader which was cited is the one depicted "on the
right-hand side" (Tr. 101).
Billy Barrett, employed as an administrative assistant by the respondent, testified that he took the pictures identified as Exhibits R-2 through
R-6, and that they were taken during the latter part of January, 1980. He
identified Exhibit R-2 as the Cleveland motor grader which was cited, and
indicated that the roll bar shown has been on the grader for six to seven
years (Tr. 106).
Inspector Manis was called in rebuttal and stated that while the photograph (Exhibit R-2) is a grader, similar to the one he cited, he was unsure
as to whether i t is in fact the specific one which he cited (Tr. 113-115).
He did recall that the pin he observed was badly worn, that it was loose
between the pin and the block, and that there was no bushing between the
pin and the block (Tr. 115-116). As for the "burnt" block area, he did
recall that the pin may have had burned places on it (Tr. 119).
Virgil Jones was recalled, and identified Exhibit R-2 as a photograph
of the grader cited, and he stated that the roll protection was installed
during late 1974, that only one grader was at the mine, and that he has
performed maintenance on it since 1972 (Tr. 121). He again identified
the pin he removed and stated that the burned bottom portion resulted when
he cut it out with a torch. He no longer had the bottom portion of the
pin which he cut out in April, 1979, because it was destroyed in the cutting
process, but he explained how it fit into the block and sleeve (Tr. 123).
He confirmed that the play was between the pin and the block (Tr. 124).

1110

Arguments presented by the parties
Petitioner
In its posthearing brief, petitioner asserts that the testimony of
inspector Manis establishes that the grader steering drag link pin bearings
were completely worn and defective, and that in such a condition a loss of
steering could occur on the right side. If this were to occur, the resulting loss of steering would cause the right wheel to turn abruptly, thereby
exposing the grader operator to a hazard of being struck by an oncoming
vehicle or cause him to strike a pedestrian. Further, petitioner argues
that the inspector verified the loose defective steering mechanism by
observation and by manually manipulating the worn part, and that once
repairs were effected and new parts installed, the steering arm had no
movement with the new parts in place.
Since the defect in question was in the steering mechanism, petitioner
argues that it is obvious that such a defect could affect the safe operation of the grader as it might cause the operator to travel into the path
of oncoming vehicles or pedestrians.
Respondent
Respondent argues that the worn condition of the steering control
arm block in question was not such as to render the part defective and
that both the grader operator and the mechanic were aware of the worn
condition, did not believe it was worn badly enough to warrant replacement, and could have replaced it at any time since the part was in stock.
Respondent takes the position that all machinery in use will wear and that
the question of whether the degree of wear is such as to require the
replacement of a part is a subjective judgment to be made not only by
an inspector, but also by the grader operator and the mechanic. Respondent
asserts that it was the collective judgment of the operator and mechanic
that the wear to the part did not render it defective.
Assuming that the worn part in question can be considered to be defective, respondent argues that the resulting condition was not dangerous. In
support of this conclusion, respondent argues that the use of the grader in
question is confined to mine property and it is primarily used for dressing
the roads and leveling some of the spoil piles. Even assuming that the
alleged defect caused the particular bushing to disintegrate and fall off,
respondent maintains that the grader could still be driven and the steering
of the left front wheel would be sufficient to control its direction. Further, respondent argues that if the grader was in the process of grading,
it could be stopped almost instantly by use of both the brakes and the
braking power of the blade. Finally, respondent asserts that the mechanic
testified that even though the bushing has nothing to do with the attachment of the wheel, the grader could even be operated and driven with one
of the front wheels missing.

1111

Findings and Conclusions
Respondent is charged with a violation of section 56.9-2, a rather
broad and general standard which provides that "[E]quipment defects affecting safety shall be corrected before the equipment is used." In order to
support a violation of this standard, MSHA must first establish by a preponderance of the evidence that the cited piece of equipment was somehow
defective or contained a defective part. It next must establish that the
asserted defect affected the safe operation of the equipment or exposed
miners to a safety hazard.
In this case, the asserted defect is described by the inspector on the
face of his citation as a "badly worn right steering control arm block" on
a road grader used on the surface for maintaining the mine roads and pit
areas. The inspector concluded that the "badly worn" part needed to be
replaced because "there was too much play for safe operation." It se~ms
obvious to me from the inspector's testimony in support of his citation
that his principal concern was the fact that in his judgment the grader in
question could not be safely operated with a worn steering mechanism. The
inspector believed that the condition of the "worn" control arm in question
was such as to present a hazard to the grader operator in that in the event
of a steering failure, he would be unable to maneuver out of the way of
oncoming traffic. He was also concerned over the fact that a loss of
steering near an embankment would expose the operator to the risk of going
over the embankment.
I have carefully reviewed and considered the testimony presented by the
parties in support of their respective positions in this case, and I
conclude and find that the respo~dent has the better part of the argument,
both as to its interpretation of the application of the cited standard as
well as the facts and evidence adduced through the testimony of the witnesses
who testified in this proceeding. I conclude and find that MSHA has not
established that the worn control arm in question was defective to the point
where it presented a real safety hazard. In short, I believe MSHA's theory
of the case seems to be that any wear and tear on a steering control arm
should be corrected immediately so as to preclude further deterioration
which may at some future time cause a problem. If I were to accept this
theory of interpretation of the cited standard, the subjective judgments of
an inspector would dictate ipso facto when a change-out is required on any
piece of equipment. In order to prevail on this subjective interpretation
of the standard, I believe that an inspector must first establish a nexus
between the asserted defect and its affect on the safe operation of the
equipment cited. I cannot accept the theory that any worn part in and of
itself affects safety. If this is the intent of the standard, then I believe
that MSHA should promulgate a precise standard that requires that all worn
parts be replaced. On the evidence presented in this case, I can only
conclude that MSHA has failed to establish by a preponderance of the evidence
that the worn control arm bushing in question adversely affected the safe
operation of the grader, and my reasons for this conclusion follow.

1112

Although Inspector Manis alluded to his past experience in operating
equipment, he candidly admitted that he has never operated a grader with
a broken bushing of the type in question and could not state with any degree
of certainty whether the grader could be controlled by use of the left wheel
only. Further, while he exhibited some degree of knowledge with respect
to the mechanics of steering mechanisms, it is clear that he is not a
qualified mechanic. Therefore, I believe that his conclusions with respect
to the loss of steering in the event the loose and worn control arm in
question failed completely is conjecture. This is not to say that he is not
qualified·to state his opinion in this regard. However, on the basis of the
testimony presented by.the respondent from.the operator of the grader, and
the experienced mechanic who serviced and operated the grader over a period
of years, I conclude that the respondent has rebutted the conclusions by
the inspector and has established that the extent of the worn part cited did
not render the grader unsafe.
I find Mr. Jones' testimony regarding the steering mechanism of the
grader to be credible and I accept his explanation that any loss of steering
caused by a defective control arm would not adversely affect the control of
the grader and cause it to expose an operator to a hazard of striking other
vehicles or run over an embankment. There is absolutely no evidence that the
grader was otherwise defective, that it had faulty brakes or was otherwise in
such a condition as to render it unsafe to operate. Further, respondent has
established to my satisfaction that the grader in question was equipped with
roll-over protection at the time the citation issued, and I conclude that the
inspector's theory in issuing the citation in the first place was an effort
on his part to force the respondent to replace a worn part which in the final
analysis was a "preventive maintenance" item. In short, I conclude that the
inspector believed that any worn part is on its face defective and therefore
should be replaced. The problem with this is that the standard as written
does not require the.replacement of worn parts ~r se.
In support of its case, petitioner cites a recent decision by Judge
Merlin rendered from the bench on October 22, 1979, in MSHA v. Phelps
Dodge Corporation where he affirmed a violation of section 55.9-2, on the
basis of the testimony of two inspectors who found that loose lug nuts on
a truck wheel could cause the wheel to come off and thus directly affect
braking. While it is true that Judge Merlin found a violation of the cited
standard, his decision was based on the particular facts of that case as
supported by the credible testimony of two mine inspectors. However,
Phelps Dodge involved a truck which had all of its wheel lugs loose, and
that condition was shown to have directly affected the braking of the truck.
The testimony presented in that case established that all of the wheel lugs
were loose, and based on the inspectors testimony that should the wheel come
off, proper braking might not occur. Judge Merlin concluded that this condition obviously rendered the truck unsafe to operate. Further, Judge Merlin
was also influenced by the fact that respondent's own mechanical foreman
conceded that loose wheel lugs presented a serious hazard. In the instant
case, I conclude that respondent's testimony and evidence satisfactorily
rebuts the inspector's conclusions as to the unsafe condition of the grader
in question.

1113

Although it is not a matter of record in this case, the attention of
the parties is invited to a recent article which appeared in the Mine
Safety & Health Reporter, published by BNA, Vol. 1, No. 22, April 9,
1980, discussing a 197-page Bureau of Mines Study entitled "Analysis of
Mobile Mining Equipment Pivot Pin Wear." While I am not particularly
influenced by this article, I take note of the fact that it specifically
alludes to the fact that the cited study apparently concludes that the
wear of the large pins which hold pivot joints together on mobile surfacemining equipment is not a hazard to miners as had been suspected. The
article also states the the Bureau of Mines has concluded that pivot pins
"are not currently a suitable target for regulatory standards," and that
the Bureau has concluded that "setting standards for the maximum allowable
wear of pin systems is impractical because the amount of permissible wear
for pins is affected by so many variables, including pin composition and
operating temperatures."
In summary, on the basis of all of the evidence and testimony adduced
in this proceeding, I cannot find or conclude that MSHA has established a
case. Accordingly, the citation issued in this matter is VACATED, and this
case is DISMISSED.

l/,~-i..

• Koutras
Law Judge
Distribution:

Tom w. Daniel, Esq., Hulbert, Daniel & Lawson, 912 Main Street,
P.O. Box 89, Perry, GA 31069 (Certified Mail)
Natalie Nelson, Esq., u.s. Department of Labor, Office of the
Solicitor, 1371 Peachtree St., N.E., Room 339, Atlanta, GA
30309 (Certified Mail)

1114

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

22041

(703) 756-6210/11/12

MAY 2 O 1980
Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFE~~AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

Docket No. PENN 79-123
A.O. No. 36-05018-03022F
Cumberland Mine

v.
U. S. STEEL CORPORATION,
Respondent

DECISION AND ORDER
After intensive prehearing preparation, this matter came on for
a prehearing conference ir:t'he U.S. Courthouse, Washington, D.C. on
May 16, 1980. The first order of business was a consideration of the
operator's motion to dismiss the charge that the operator failed to
mark and identify shuttle car trailing cable plugs as required by 30 CFR
75.601. On the basis of a statement for the record by Inspector Davis,
the Presiding Judge found this was a marginal, nonserious, no fault
violation and suggested that in the interest of expedition the matter
be settled with the payment of a $100 penalty. The parties agreed and
so moved.
The next order of business was a lengthy discussion and consideration
of the charge that a qualified electrician's failure to lock out a
trailing cable plug as required by 30 CFR 75.511 was the effective cause
of the electrocution of another miner. On the basis of an indepedent
evaluation and de novo review of (1) the parties' investigative reports,
(2) the statements~experts for both parties, (3) an examination of
the relevant physical evidence, and (4) a review of the time-line analysis
of pertinent events (copy attached as Appendix), the Presiding Judge found
this was an extremely serious violation that resulted from the gross
negligence of Kenneth R. Blystone, a qualified electrician employed by
the operator in the 3 Butt Section of the Cumberland Mine on January 2, 1979.
It appeared that under the stress of knowing the shift was about to end
with no production and two shuttle cars down, Mr. Blystone lost his
composure and ability to think clearly. This led to a hasty decision to
bypass the Femco ground sentinel monitor without disconnecting the trailing
cable plug for the number 105 shuttle car. As a consequence, when the
circuit breaker closed and energized the cable another electrician,
Mr. Feather, who was splicing the cable, received a fatal shock.

1115

On the basis of the facts appearing in the record and upon a
consideration of the applicable law, the Presiding Judge further found
the employee's negligence was imputable to the operator. See, National
Realty and Construction Co. v. OSHRC, 480 F.2d 1257, 1266 (D.C. Cir. 1973);
Pocohantas Fuel Co. v. Andrus, 8 IBMA 136 (1977), aff'd 590 F.2d 95 (4th Cir.
1979); Secretary v. Ace Drilling Co., 2 FMSHRC ~-'PITT 75-1-P, decided
April 24, 1980; Secretary v. Warner Co., 2 FMSHRC ~-' PENN 79-161-M, decided
April 28, 1980; Prosser, Law of Torts, §§ 31, 32, pp. 145, 158 (4th ed. 1971).
More specifically, the Presiding Judge concluded the Assistant Maintena~ce
Foreman's failure to exercise the high degree of care imposed by the Act
in supervising the conduct by his subordinates of hazardous work under
conditions of stress that were or should have been known to him warrants
imputation of the subordinate employee's negligence to the operator
without diminution.
After taking into account (1) MSHA'.s statement that the.facts did
not warrant action against the individual involved under section llO(c) or (d)
of the Act, (2) the operator's extensive efforts to insure against any
repetition of the circumstances giving rise to this violation, (3) the
operator's overall safety record, and (4) the absence of any request or
showing of need for an evidentiary hearing, the Presiding Judge recommended
the matter be settled with the payment of a penalty of $7,000. The parties
agreed and so moved.
Whereupon each of the motions to approve settlement was granted by
a decision from the bench and the operator directed to pay the penalties
agreed upon within ten days.
The premises considered, it is ORDERED that the bench decision be,
and hereby is, ADOPTED and CONFIRMED. It is FURTHER ORDERED that the
operator pay the penalty agreed upon, $7,100 on or before Tuesday,
May 27, 1980 and that subject to payment the captioned proposal for
penalty be DISMISSED.

Attachment:

Appendix

Distribution:
Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant Street, Pittsburgh,
PA 15230 (Certified Mail)
Sidney Salkin, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail)

1116

APPENDIX
TIME LINE ANALYSIS
Location:

3 Butt, 006 Section, Cumberland Mine
Room 11, Nos. 2 and 3 Entries
Day Shift, Tuesday, January 2, 1979
Fatal Accident Occurred at 3:25 p.m.

1:00 p.m. - Shuttle Car (S/C) 105 located in No. 3 entry developed
to
2:00 p.m.

trouble with its trailing cable.
Kenneth R. Blystone, age 58, a qualified electrician with
18-1/2 years experience removed the S/C 105 trailing
cable plug from the Load Center (LC) receptacle in the
#3 entry of the 006 Section and locked it out with his

Blystone and George Cook, Jr., an electrician trainee
(Grade 4), with

~

years' experience made a splice

in the S/C 105 trailing cable.
Blystone then gave Cook the key to unlock the padlock
on the S/C 105 trailing cable plug.
Cook unlocked the lock from the S/C 105 trailing cable
plug and placed the lock along with the key on top of
the LC.
Cook then inserted the S/C 105 trailing cable plug into the
LC receptacle, and tried to energize the circuit breaker in
the LC several times without success.

1117

Each tine Cook threw in the circuit breaker the Femco ground
sentinel system kicked it back out.

This meant the short in

the S/C 105 trailing cable was not corrected.
Cook, at the direction of Blystone, then removed the S/C 105
trailing cable plug from the LC and Blystone ran additional
tests in an effort to locate the trouble.

2:00 p.m. - 106 S/C trailing cable shorted out.
to

2:15 p.m.

Fr/:9 i+@•

~is

JH:;sl

a Aid &Qt

ace uaa merk.ee

Blystone removed the S/C 106 trailing cable plug

fron the LC receptacle and locked it out using the lock that
Cook had removed from the S/C 105 trailing cable plug and
placed on top of the LC.

~is padlock was Ken Blystone's

lock that he had on his belt at the time he locked out the
S/C 105 trailing

cable~ Blystone failed to lock out the

S/C 105 trailing cable plug that Cook had removed from the
LC receptacle.

Instead Blystone placed a danger tag in the

S/C 105 trailing cable plug.

Blystone could have locked out

the S/C 105 trailing cable plug with a lock from his tool box.

2:15 p.m. - Blystone notified William Jiblits, Assistant Maintenance
to

2:30 p.m.

Foreman of the breakdown of the two S/C's.

Jiblits directed

Ted Chapman, a Grade. 4 electrician trainee with 3 years'
experience, and Joe Julian, another Grade 4 electrician trainee

_,.

with

..;) years' experience, to leave the 2 Butt section and

1118

go to the 3 Butt section to assist Blystone.

In the meantime,

Blystone and Cook gave first priority to working on the S/C 106
trailing cable splice, because the brakes were bad on S/C 105
and h~d to be repaired before it could be used.
2:30 p.m. - Julian and Chapman arrived on the 3 Butt section and Blystone
to

directed them to help him troubleshoot the problem on the

3:00 p.m.

S/C 105 trailing cable while Cook continued to work on the
S/C 106 trailing cable problem.

At 2:50 p.m., Jiblits

directed William Feather, a qualified electrician with 1 year
3 mortths' experience in this classification, to leave the
2 Butt section and proceed to the 3 Butt section to help
Blystone.

At the time Feather arrived at the No. 2 entry

of the 3 Butt section, Blystone, Julian and Chapman had cut
a 10-foot section out of the S/C 105 trailing cable.

When

Feather took over from Blystone, at approximately 3:00 p.m.,
the S/C 105 trailing cable had been cut apart and one end
had the cable insulation peeled back.

Blystone then left to

return to #3 entry to work with Cook on the S/C 106 trailing
cable problem.
3:00 p.m. - Blystone proceeded to help Cook put a splice in the S/C 106
to
3:30 p.m.

trailing cable in the #3 entry.

A short time later, Chapman

came over from the #2 entry and told Blystone he thought
Feather had found an opening in the S/C 105 trailing cable.
Blystone told Chapman to stay with Cook, while he went over
to assist Feather and Julian.

1119

Blystone determined there was

an opening in the S/C 105 trailing cable and then returned
to the #3 entry to help Cook and Chapman splice the S/C 106
trailing cable.

At approximately 3:25 p.m., the splice in

the S/C 106 trailing cable was completed.

Leaving Cook at

the splice, Blystone and Chapman proceeded to the load center
in the #3 entry.

There the plug for the S/C 106 trailing

cable was lying locked out.

Beside it was the plug for the

..

S/C 105 trailing cable with the danger tag :~1-~tt: ~~~tt.~(~~n
placed there by Blystone earlier.

Ignoring.I the ·danger tag;J

Blystone picked up the S/C 105 trailing cable plug and plugged
it into the No. 1 receptacle thinking it was the S/C 106
trailing cable plug.

The Femco ground check monitor circuit

light indicated an open circuit.

The plug was then removed

by Blystone and inserted in LC receptacle No. 2 with the same
result.

At this point Blystone became agitated, and thinking

the problem might be in the LC,

~old

Chapman to depress the

ground check monitor test switch to the unit check position
and activate the circuit breaker while he observed the lights
on S/C 106.

(Safe practice requires that all plugs be removed

from the LC before bypassing the Femco Ground Sentinel II
ground monitor).

When the test switch is depressed, the

ground sentinel system is bypassed, and the circuit breaker
and trailing cable become energized.

As instructed by

Blystone, Chapman depressed the test switch and activated
the circuit breaker.

As soon as Chapman saw the circuit

1120

breaker close, he released .the test switc,h and energized the
trailing cable.

At this point, Julian and Feather were both

holding the exposed S/C 105 trailing cable.

Feather was

holding the cable on both sides of the splice, while Julian
was taping a phase lead connection they had completed.

Three

of the five remaining conductors were folded back along the
cable.

When Chapman depressed the Femco test switch and acti-

vated the circuit breaker the trailing cable.became energized.
When Julian felt the surge of power he screamed, and when the
power hit Feather it knocked him unconscious•

Cardio-pulmonary

resuscitation was started immediately and continued until
arrival at the Waynesburg Hospital, where Feather was
pronounced dead on arrival.
The floor of th~ no. 2 entry, 11 crosscut, varied from damp
to wet and muddy.

Feather was wearing leather boots and

was not wearing gloves.

A padlock in the closed position

was found on Feather's belt.

Feather never knew whether or

not anyone had locked out and tagged the S/C 105 trailing
cable.

No faults were found in the LC when subsequently

tested by Inspector Davis.

1121

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

(703) 756-6210/11 /12

2 1 MAY 1980
Civil Penalty Proceedings

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

Docket No. LAKE 80-36
A.O. No. 11-01008-03029
Baldwin Mine

v.
PEABODY COAL COMPANY,
Respondent

Docket No. LAKE 80-27
A.O. No. 11-00598-03037
Eagle No. 2 Mine
Docket No. LAKE 80-26
A.O. No. 11-00585-03048
Mine No. 10
Docket No. LAKE 80-25
A.O. No. 11-00725-03037
River King No. 1 UG
DECISION AND ORDER

Despite the operator's withdrawal of its petition for discretionary
review in the captioned matters on the ground they were settled and paid,
the Commission joined them with an unrelated matter in issuing its suspension
order of April 14, 1980 and decision of May 16, 1980. Secretary v. Peabody
Coal Company, Dkt. LAKE 80~25, et al., 2 FMSHRC ~-· For this reason, the
finality of the decision approving settlement of these matters was suspended
pending the decision in the unrelated matter. The Commission having now
remanded the unrelated matter apparently intended to life suspension of all
the matters cited in the captioned to its decision.
Accordingly, it is ORDERED that the ju
be, and hereby is, REINSTATED and CONFIRME •

1122

of March 5, 1980,

Distribution:
David S. Hemenway, Esq., 301.North Memorial Drive, P.O. Box 235, St. Louis,
MO 63166 (Certified Mail)
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the Solicitor,
230 S. Dearborn St., Chicago, IL 60604 (Certified Mail)
Rafael Alvarez, Esq., U.S. Department of Labor, Office of the Solicitor,
230 S. Dearborn St., Chicago, IL 60604 (Certified Mail)

1123

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

(703) 756-6210/1 l /12

2 2 MAY 19$0

Civ:f.l Penalty Proceeding

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

Docket l'!'o. LAKE 80-15-M
A.O. No. 11-00132-05005
Plant No. 6
Florence Quarry & Mill

v.
MISSOURI GRAVEL COMPANY,
Respondent

DECISION AND ORDER
These seven allegedly nonserious, low negligence violations were
initially assessed at $536.00. It is now proposed to reduce the assessment
to $522.00.
Based on an independent evaluation and de novo review of the information
furnished, I conclude that six of the seven violations should be settled
at the amounts proposed. The seventh violation involves a failure to
provide an audible backup alarm on a caterpiller tractor operating in an
area where personnel were working or traveling. The potential for a
fatal or seriously disabling injury was therefore real and not remote
or speculative. For these reasons, I find the amount proposed for
settlement, $72.00, is unacceptable and should be increased to $100.00. !/
Accordingly, it is ORDERED that to the extent indicated the motion
to approve settlement be, and hereby, is GRANTED. It is FURTHER ORDERED

!/ The findings in this Decision and Order are based on the information submitted in support of the parties' motion. The penalties found
warranted constitute an exercise of the predictive, discretionary power
conferred by Congress under section llO(i), (k) of the Act to assess
penalties designed to deter future violations and insure voluntary
compliance. Should the disposition proposed be unacceptable, the parties
may request a settlement conference or evidentiary hearing.

1124

that on or before Friday, June 13, 1980, the operator pay a penalty of
$550.00 in settlement of these matters and that subject to payment the
captioned proposal for penalty be DISMISSED.

Judge
Distribution:
William c. Pasternack, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 S. Dearborn St., Chicago, IL 60604 (Certified Mail)
Stephen A. Gorman, Esq., Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd.,
8500 Sears Tower, Chicago, IL 60606 (Certified Mail)

1125

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

2 2 MAY 1900
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PERRY R. BISHOP,
Complainant
v.

Complaint of Discharge,
Discrimination or
Interference
Docket No. KENT 79-161-D
No. 4 Surface Mine

MOUNTAIN TOP FUEL, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. KENT 80-98
Assessment Control
No. 15-10188-03006

v.

No. 4 Surface Mine
MOUNTAIN TOP FUEL, INC.,
Respondent
DECISION
Appearances:

Thomas P. Piliero, Esq. , Office of the Solicitor,
.
U.S. Department of Labor, for Complainant and Petitioner;·
Herman W. Lester, Esq., Pikeville, Kentucky, for
Respondent.

Before

Administrative Law Judge Steffey

-' '

Pursuant to an order providing for hearing, consolidating issues, and
requiring furnishing of documents issued February 28, 1980, a hearing in the
above-entitled proceeding was held on March 18 and 19, 1980, in Pikeville,
Kentucky, under section 105(d) of the Federal Mine Safety and Health Act .of
1977.
The consolidated proceeding involves a complaint of discharge filed on
August 7, 1979, by the Secretary of Labor and MSHA on behalf of Perry R. Bishop
against Mountain Top Fuel, Incorporated, in Docket No. KENT 79-161-D.
The complaint alleged that respondent had violated section 105(c)(l)
of the Federal Mine Safety and Health Act of 1977 and asked that Mr. Bishop
be reinstated to his former job, be awarded back pay from the time of his
discharge on February 14, 1979, and be given other relief.
Subsequently, the complainant filed a motion for dissolution l;)f the order
of temporary reinstatement which had been issued on June 19, 1979, and reaffirmed
on July 3, 1979, by Chief Administrative Law Judge Broderick after aheariilg

1126

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
helcf 'on June 29, 1979, with respect to the issue of whether the Secretary had
properly found that the complaint was nonfrivolous.
'The reasons that a motion for dissolution of the order of temporary
. reinstatement was filed was that Mr. Bishop had secured a job elsewhere and
did not any longer wish to be reinstated at respondent's No. 4 Surface Mine.
I issued an order on October 24, 1979, granting the motion for dissolution
of the order of temporary reinstatement. Complainant still seeks an award of
back pay and all other relief previously sought in his complaint.
Respondent's petition for review of the order of temporary reinstatement
was dismissed as moot by the U.S. Circuit Court of Appeals for the Sixth
Circuit upon agreement of the parties that the action was moot in view of the
dissolution of the order of temporary reinstatement.
I also issued an order on February 28, 1980, consolidating for hearing
and decision in this proceeding the civil penalty issues raised by the
Secretary's filing on February 14, 1980, of a Petition for Assessment of
Civil Penalty in Docket No. KENT 80-98 alleging that respondent had violated
section l05(c)(l) of the Act by refusing to reinstate Mr. Bishop to his job
pursuant to the order of temporary reinstatement and seeking to have a civil
penalty assessed for that alleged violation.
The order of February 28, 1980, also provided for the hearing in this consolidated proceeding to be held in Pikeville, Kentucky, on March 18, 1980.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 375-395):
My decision in this proceeding will be based on the findings of fact which I am first going to make. An explanation of my
cred~bility determinations will be given after the findings of fact.
These findings of fact will be given in numbered paragraphs and
I shall give the numbers at the beginning of each paragraph.
1. Complainant, Perry R. Bishop, began working for respondent,
Mountain Top Fuel, Inc., on September 22, 1977. Mr. Bishop at first
drove a truck for respondent for a period of nine or ten months.
Then Mr. Bishop became the operator of a front-end loader which was
used to remove overburden at respondent's No. 4 Surface Mine. Thereafter, respondent, at Mr. Bishop's request, transferred Mr. Bishop
to the position of operating a Michigan 275 front-end loader which
was used to clean the final five or six inches of overburden off
the coal seam and for loading the coal into trucks which haul an
average of 25 tons each.
2. On February 14, 1979, Mr. Bishop reported for work as
usual at about 6:45 a.m. for a nine-hour shift beginning at 7 a.m.
The temperature on February 14 was below freezing. Mr. Bishop checked

1127

MSHA v. Mountain.Top, Docket Nos. KENT 79-161-D, et al.
the fluid levels in the Michigan front-end loader and noticed
that the brakes were inoperative. The brakes were operated by an
air system which is subject to malfunctioning in below-freezing
temperatures because of condensation which forms in the air lines and
freezes so as to prevent air pressure from moving the brake drums.
An alcohol container is built into the system which is designed
to mix alcohol with the condensation and prevent ice from forming
in the brake lines. Mr. Bishop did not check the alcohol level
on February 14.
3. The first work done by Mr. Bishop on February 14 consisted of tramming his end loader from a location near the mine
office to a coal stockpile situated about 2,000 feet from the
office. Mr. Bishop loaded three trucks with the stockpiled coal.
About one-half truck load of coal remained in the stockpile.
Mr. Bishop then trammed his loader down to the pit area where
another pile of coal had been prepared by the preceding evening
shift. Mr. Bishop loaded two additional trucks from that pile
of coal and once again about a half truck load of coal remained
after those two trucks had been loaded in the pit area.
4. About 15 minutes were required to load the three trucks
at the stockpile area. Mr. Bishop trammed the Michigan loader to
the pit area between 7:15 and 7:30 a.m. Mr. Bishop loaded the
two trucks in the pit area between 7:30 and 8 a.m. and began cleaning rocks and dirt off the top of the coal seam at about 8 a.m.
About 9 a.m. a sixth truck driven by Mr. Billy Cool arrived in the
pit area .. Although Mr. Bishop could have loaded Mr. Coal's truck
with the half-load of coal at the stockpile plus the half-truckload
of coal in the pit area or by using coal which had already been
uncovered between 8 and 9 a.m., Mr. Bishop continued to remove
overburden from the coal seam instead of loading Mr. Cool~s
truck.
5. While Mr. Cool was waiting to get his truck loaded, he
ate a sandwich and some other food, cleaned his windshield and
lights, and went to the bathroom. Since truck drivers get paid
for the number of loads hauled, rather thari for the number of hours
worked, Mr. Cool grew impatient about further waiting and decided
to go home. As he was passing the mine office on his way home
in his truck, he saw Mr. David Childers near the mine office and
stopped to complain about having to wait from 15 minutes to 30
minutes to get a load of coal. Mr. Childers, who is vice-president,
part owner, and foreman, persuaded Mr. Cool to return to the pit
and asked Mr. Michael Adkins to load Mr. Coal's truck.
6. Mr. Childers then drove down to the pit in his truck
and asked Mr. Bishop why he had not promptly loaded Mr. Coal's
truck. Mr. Bishop's sole excuse for not loading the truck was
that he was still cleaning off coal as he had been instructed to
do it and that he couldn't have loaded the truck so as to satisfy
Mr. Childers' instructions any sooner than he had done it.

1128

MSHA v. Mountain Top,. Docket Nos. KENT 79-161-D, et al.
Mr. Childers saw that Mr. Bishop had already cleaned off about
ten loads or 250 tons of coal and couldn't understand why Mr.
Bishop had not promptly loaded Mr. Cool's truck. Mr. Childers
had had other complaints from truck drivers who were upset about
having to wait for coal to be loaded. Mr. Childers had previously
emphasized to Mr. Bishop the importance of loading trucks promptly.
Therefore, Mr. Childers told Mr. Bishop that he was discharging
Mr. Bishop at that time, which was about 9:30 a.m., for failure
to load coal trucks promptly.
7. Since Mr. Bishop had parked his truck that morning at
a place about ten miles from the mine site and had ridden to the
mine with another employee, it was ne~essary for Mr. Childers
to use his own truck to transport Mr. Bishop to the place where
Mr. Bishop's truck had been left.
8. Counsel for MSHA on May 18, 1979, called Mr. Childers and
advised him that he was shortly expecting to file a statement with
the Counnission which would result in the issuance of an order of
temporary reinstatement which would require respondent to reinstate Mr. Bishop to his position as operator of the end loader.
At that time MSHA's counsel asked Mr. Childers if he would
voluntarily reinstate Mr. Bishop so as to make it unnecessary for
MSHA's counsel to ask for an order of temporary reinstatement.
Mr. Childers' response was that he did not intend to reemploy
Mr. Bishop voluntarily, but Mr. Childers stated that he had partners
whose opinions he would like to obtain before giving counsel a
final answer. Therefore, Mr. Childers stated that he would
provide MSHA's counsel with a final answer on Monday, May 21, 1979.
When MSHA's counsel thereafter called Mr. Childers on May 21,
Mr. Childers stated that respondent would not voluntarily reemploy
Mr. Bishop.
9. Chief Administrative Law Judge Broderick issued on
June 19, 1979, an order of temporary reinstatement. Respondent
did not comply with the order on June 22, 1979,.when Mr. Bishop
appeared at respondent's mine. An MSHA inspector then issued on
June 22, 1979, Citation No. 713218 alleging a violation of
section 105(c) of the Act because of respondent's failure to
reinstate Mr. Bishop on June 22, 1979. Citation No. 713218 gave
respondent until June 25, 1979, within which to comply with the
order of temporary reinstatement. On June 25, 1979, Mr. Bishop
and the inspector returned to respondent's mine. When respondent
still declined to reemploy Mr. Bishop, the inspector issued on
June 25, 1979, an order of withdrawal for failure of respondent
to abate Citation No. 713218 within the time provided. As indicated
in the first part of this decision, an action in the Sixth Circuit
concerning the order of temporary reinstatement was dismissed as
moot after Mr. Bishop found a job elsewhere and requested that
the order of temporary reinstatement be dissolved because Mr.
Bishop no longer wished to be reemployed at respondent's mine.

1129

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
10. Counsel for MSHA filed on February 14, 1980, in Docket
No. KENT 80-98 a Petition for Assessment of Civil Penalty seeking
to have a penalty assessed for the violation of section 105(c)
alleged in Citation No. 713218 .described in Finding No. 9 above.
By order issued February 28, 1980, I granted the motion of MSHA's
counsel for consolidation of the Petition for Assessment of Civil
Penalty r 1r hearing and decision with the issues raised by the
complain filed in Docket No. KENT 79-16l~D.
11. At the commencement of the hearing on March 18, 1980,
MSHA's counsel asked that I assess a penalty if I found that
respondent violated section 105(c)(l) in discharging Mr. Bishop.
He also asked that I assess a penalty for respondent's having
laid off all men on the second shift on May 18, 1979, in order
to avoid having to reinstate Mr. Bishop.
12. As Finding No. 6 above indicates, respondent did not
violate section 105{c){l) when it discharged Mr. Bishop.
13. The evidence does not support MSHA's claim that
respondent violated section 105(c) when it laid off the second
shift on May 18, 1979. And Mr. Piliero, MSHA's counsel, agreed
that was a fact this morning in his summation. The evidence shows
that respondent was having difficulty in selling its coal as fast
as it was being produced and that respondent decreased its work
force to achieve economy in its operations. The decision to reduce the number of employees at respondent's mine had been made
2 weeks prior to May 18, 1979, at one of respondent's weekly
meetings and that reduction in force was made effective on
May 18, 1979.
14. The claims made by respondent to explain its reduction
in employees are supported by the production· data submitted in
response to MSHA's questions. During the four quarters of the year
1978, respondent employed from 21 to 23 persons and produced from
10,378 tons in the first quarter of that year to 38,421 tons in the
second quarter of that year. The large production shown in the
second quarter was accompanied by a much larger number of hours
worked than were reported in any other quarter. During the year
1979, respondent produced 27,922 tons in the first quarter and
24,954 tons in the second quarter with 21 employees. The third and
fourth quarters show that the coal production dropped to 21,013
tons in the third quarter and 20,867 tons in the fourth quarter
after respondent had reduced ~ts number of employees to 13 and 11,
respectively.

.

15. Respondent's president testified that when two 9-hour
production shifts are worked, more equipment is down for repairs
than when one shift is worked and that production time is wasted by
the time
lost in overlapping of the two shifts of miners leaving
and arriving at the mine site and that a one-shift operation is
more economical from a cost standpoint that a two-shift operation.

1130

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
16. Respondent's president testified that the choice
of the reduction in employees was made on the basis of both
seniority and efficiency and for that reason some of the men
retained would have had less seniority than Mr. Bishop if he had
still been working for respondent on May 18, 1979, when the reduction in personnel occurred. Therefore, respondent said that
Mr. Bishop would have been laid off on May 18, 1979, if he had
still been working for respondent when that reduction in force
occurred. For example, the elimination of the miners working
on the night shift required the transfer of the night-shift
supervisor to the day shift. The need to retain that valuable
employee required the subsequent layoff of a person who had
been working on the day shift.
17. On an annual basis respondent's No. 4 Mine produced
94,756 tons in 1979 according to Exhibit C or 101,623 tons annually
if one uses the figure in the Assessment Order in Docket No.
KENT 80-98. Assuming that the mine produced coal on an average
of 250 days each year, the daily average tonnage would have ranged
from 379 tons to 406 tons per day.
That concludes my findings.
There are several reasons for the credibility determinations
which have resulted in my making findings which support my
conclusion that Mr. Bishop was discharged for reasons other than
the protected activities set forth in section 105(c) (1) of the Act.
I am going to list the aspects of the testimony which have caused
me to rule in favor of respondent. The items I shall discuss are
listed as they occur to me and not with the intention of giving
any item as being more important than another.
Mr. Bickford, who was responsible for repairing the brakes
on the Michigan end loader stated that when he examined the alcohol
container at the end of the day on February 14, 1979, the day of
Mr. Bishop's discharge, he found that the container was empty.
Mr. Bishop agreed that it was his responsibility to check the alcQhol
level in that container from time to time and yet he admitted that
he had not checked the container on February 14 or for several
days prior to February 14. .Mr. Bishop agreed that it was important
and necessary to drain water out of the air tanks to prevent freezing. Mr. Bishop also was aware of the importance of the alcohol
in preventing freezing. He contributed to the malfunctioning of
the brakes by not properly doing the maintenance work for which
he was responsible.
Mr. Bishop's claim that the brake pedal remained flat on
the floor board did not withstand cross-examination. Mr. Bickford
testified that the brake pedal was held up by a spring and that it
would not remain in a depressed condition even if there was no
air pressure at a given time. When Mr. Bishop was cross-examined

1131

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
about that claim, he did not deny that the spring existed but
contended that the brake pedal sometimes would stick. When he was
asked if he tried to raise the pedal to see if it was stuck,
he said he did raise it, but it fell back to the floor. The
logical conclusion from those admissions is that the brake pedal was
not stuck in the down position or it would have remained upright
when pulled up manually.
Mr. Bickford testified that the brakes on the end loader
would not work on February 14 because of a freezing problem
and that another mechanic corrected 'the problem by making a bypass around the frozen area. Mr. Bickford did not recall having
been working on a water pump as alleged by Mr. Bishop on February 14 when Mr. Bishop asked him to check the brakes on the end
loader and Mr. Bickford said that his answer to Mr. Bishop about
repairing brakes on the end loader would not have been given in
terms of what Mr. Childers might assign for him to do on that day.
Mr. Cool insisted that there was enough coal already prepared to provide a load for his truck and that he would not have
driven away.after waiting from 15 to 30 minutes to be loaded if the
only coal available had still been intact in the coal seam and
unavailable for immediate moving. Even though Mr. Coal's
testimony may be motivated by self-interest, there is no way to
explain Mr. Coal's displeasure at having to wait for a load of
coal unless Mr. Bishop was taking an unreasonable amount of time
in loading Mr. Cool's track. Mr. Cool had been driving trucks
for 17 years and said that he generally obtained a load of coal
within four or five minutes. Even though the brakes were bad on
the end loader on February 14, Mr. Bishop had loaded three truckloads at the beginning of his shift in a period of 15 minutes.
There is nothing in the record to show that Mr. Cool's complaint
about undue waiting was without merit or justification.
Mr. Bishop does not deny that several months before his
discharge he turned over a truck hauling rock in order to avoid
hitting a road grader driven by Mr. Childers. On that occasion
Mr. Bishop claimed the truck's brakes were defective, but Mr.
Childers claims they were in operating condition immediately after
the truck was pulled back upon its wheels. Even though some rock
fell from the truck to the place where Mr. Childers would have
been sitting if he had not jumped out of the grader before the
rocks landed, Mr. Bishop says that Mr. Childers did not become
upset over the incident. Mr. Childers' ability to remain calm
was demonstrated by the way he conducted himself in that instance
and I believe his forebearance in that case shows that he is not
a person who would be likely to discharge an employee who simply
reports defective brakes on two occasions. In other words, we
do not have in this case a long list of alleged safety complaints
or evidence indicating that Mr. Childers was indifferent about
safety matters.

1132

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
Mr. Bishop's complaint filed with the Mine Safety and
Health Administration was introduced as Exhibit 1 in this proceeding. Mr. Bishop states in that complaint, "I wish to make
a discrimination· complaint against Mountain Top Fuel. I was
fired by David Childers (the boss) when I told him I couldn't
work as fast as he ordered me to because th~ end loader I was
running didn't have brakes on it." Mr. Bishop's own testimony in this proceeding does not support the wording of his
complaint.
There is no evidence in the record to cast any doubt on
Mr. Childers' claim that he drove the Webco truck to test its
brakes after Mr. Bishop had stated that its brakes were defective.
It seems quite credible that Mr. Childers would have made, as he
claimed, a similar effort to check the brakes on the end loader
when Mr. Bishop complained about its brakes being defective about
five days before Mr. Bishop was discharged. At that time Mr.
Childers says he instructed Mr. Bickford to repair the brakes and
that Mr. Bickford reported to him that the brakes had been repaired.
Therefore, Mr. Childers assumed that the brakes were operative on
February 14, 1979, when he discharged Mr. Bishop because Mr.
Bishop did not mention the defective brakes to Mr. Childers at the
time Mr. Childers asked for an explanation of Mr. Bishop's failure
to load Mr. Cool's truck. One of the least convincing aspects
of Mr. Bishop's case has always been that he would fail to mention
the defective brakes to Mr. Childers on February 14 until after
Mr. Childers had discharged him and he was being driven by Mr.
Childers down the mountain in Mr. Childers' truck.
MSHA's counsel says that Mr. Bishop's having asked Mr.
Bickford to fix the brakes on February 14 is sufficient to show
that Mr. Bishop was discharged for having engaged in a protected
activity under section 105(c)(l), that is, for having made a
safety-related complaint. I do not think the facts in this case
support that argument. While it may be said for some purposes
that knowledge of an agent may be attributed to the principal,
there was a time element here which cannot be satisfied by that
argument. Neither Mr. Bishop nor any other witness has been able
to show that Mr. Childers knew of a defective brake claim on
February 14 when Mr. Bishop was discharged.
Before I can make a finding that Mr. Bishop was discharged
for having made a safety-related complaint, I must be able to
cite evidence clearly showing. that there was- a pattern of activity by the complainant which so annoyed the respondent that the
respondent dishcarged the complainant for that pattern of conduct
. rather than for the reason respondent gave for discharging the
complainant. Two complaints about defective brakes to Mr. Childers
a few days before the discharge simply are insufficient to show
that Mr. Childers really discharged Mr. Bishop for complaining
about brakes rather than for failing to load coal trucks promptly.

1133

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.

The next part of this decision will be related to Docket
No. KENT 80-98.
Docket No. KENT 80-98
I have already made findings regarding the civil penalty
issues insofar as the finding of occurrence of a violation is
involved. Finding No. 9 above shows that respondent refused to
comply with the order of temporary reinstatement while it was in
force. Section 105(c)(3) of the Act provides that, "Violations
by an person of paragraph (1) shall be subject to the provisions
of Sections 108 and llO(a)." Paragraph (1) referred to in the
foregoing quotation, among other things, prohibits any person
from interfering with the exercise of a miner's statutory rights
under the Act. Respondent violated paragraph (1) in refusing to
comply with the· order of temporary reinstatement. Section llO(a)
requires that a civil penalty be assessed for a violation of any
provision of the Act. Section llO(i) requires that penalties be
assessed after giving consideration to the six criteria set forth
in section llO(i).
The first criterion is respondent's history of previous
violations. It has been stipulated by MSHA's counsel that
respondent has not previously violated section 105(c) of the
Act. Therefore, I find that there is no history of previous violations to be considered in this instance.
The second criterion is the appropriateness of the penalty
to the size of respondent's business. As indicated in Finding
Nos. 14 and 17 above, respondent's No. 4 Mine once employed a
toal of 23 winers and now employs 11 miners to produce about
379 tons of coal per day. On the basis of those data, I find
that respondent operates a small mine and that any penalty assessed
should be in a low range of magnitude insofar as the size of
respondent's business is concerned.
The third criterion is the question of whether payment of
penalties would cause respondent to discontinue in business.
Respondent has introduced no financial data to show that payment
of penalties would have an adverse effect on its ability to continue
in business.
In ~he absence of any evidence to the contrary, I
find that payment of penalties will not cause respondent to discontinue in business.
The fourth criterion is whether the operator was negligent
in violating the Act. The evidence shows that respondent
deliberately refused to reinstate the complainant. In the preliminary hearing on the issue of whether the complaint was frivolous, respondent stated that it was paying into an escrow account
the money it would otherwise have paid Mr. Bishop if he had not

1134

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.

been discharged on February 14, 1979. I agree with Chief Judge
Broderick's statement at the preliminary hearing that payment
of wages into an escrow account will not satisfy the purpose of
the temporary reinstatement provisions of the Act because the
purpose of temporary reinstatement is to provide the discharged
miner with income while the merits of his complaint are being
determined. It may seem harsh to assess a penalty in a case in
which respondent's position has been upheld on the merits, but
Congress has already balanced those considerations and has provided
for temporary reinstatement. The deliberate refusal to comply with
the order of temporary reinstatement and the refusal to abate
Citation No. 713218 is tantamount to gross negligence because
management knew they were obligated to comply with the order
but steadfastly refused to do so.
The fifth criterion is the question of the gravity of the
violation. MSHA's counsel has stipulated that respondent's
refusal to reinstate Mr. Bishop did not expose any miners to the
likelihood of injury. I f the criterion of gravity is in.tended
to refer only to the physical exposure to danger, I believe that
the criterion of gravity is inapplicable in this instance. On
the other hand, if gravity is interpreted from the standpoint of
the loss of a family's income by the operator's refusal to reinstate
a complainant, the gravity of the violation could be considered
as being a serious one. Also, if one thinks of gravity from the
standpoint of the damage done to the miner's faith in the Act if
the Commission's orders can be ignored with impunity, the violation
would be serious from that viewpoint. I think that all aspects
of the violation have to be considered and I find that the violation
was serious under the aspects I have just explained.
Finally, the sixth criterion is the demonstrated good faith
of respondent in attempting to achieve rapid compliance after
notification of the violation. The evidence shows that respondent
exerted no effort to comply with the order of temporary reinstatement after Citation No. 713218 was issued. It was respondent's
refusal to attempt to achieve compliance which caused the inspector
to issued Withdrawal Order No. 713219. Since that order was labeled
by the inspector as a "non-area closure order," it had no adverse
effects upon respondent's coal-producing activities.
My consideration of the six criteria would require assessment
of a maximum penalty of $10,000.00 except for the important fact
that respondent is a small company and has no prior history of violating
section 105(c). Taking into consideration the other matters
I have discussed above, requires assessment of a penalty of
$1,500.00

1135

MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al.
ULTIMATE FINDINGS AND CONCLUSIONS
(1) Complainant failed to prove that he was discharged on
February 14, 1979, because of any activity protected under
section 105(c)(l) of the Act; therefore, the complaint filed in
Docket No. KENT 79-161-D should be dismissed.
(2) Respondent violated section 105(c) of the Act by refusing
to comply with the order of temporary reinstatement issued
June 19, 1979, as confirmed on July 3, 1979, and respondent should
be assessed a penalty of $1,500.00 for that violation.
(3) Respondent, as the operator of the No. 4 Surface Mine,
is subject to the Act and to the Regulations promulated thereunder.
WHEREFORE, it is ordered:
(A) The complaint filed on August 7, 1979, in Docket
No. KENT 79-161-D is dismissed.
(B) Respondent, within 30 days from the date of this
decision, shall pay a civil penalty of $1,500.00 for the violation
of the Act referred to in paragraph (2) above.

~ c.

r:i.¥hJ-

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

Distribution:
Thomas P. Piliero, Trial Attorney, Office of the Solicitor, p.s.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Herman W. Lester, Esq., Attorney for Mountain Top Fuel, Inc.,
Combs and Lester, P.S.C., 207 Caroline Avenue, Pikeville, KY
41501 (Certified Mail)
Mr. Perry R. Bishop, Route 4, Box 955, Pikeville, KY 41501
Larry G. Adkins, President, Mountain Top Fuel, Inc., Route 2,
Box 258-F, Pikeville, KY 41501

1136

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

2 2 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) , ·
Petitioner

Civil Penalty Proceeding
Docket No. KENT 79-7
Assessment Control
No. 15-09827-03002

v.

MIDDLE KENTUCKY CONSTRUCTION, INC.

Crapshooter No. 2
Strip Mine
DECISION

Appearances:

Darryl A. Stewart, Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Byron W. Terry, Field Safety Director, for
Respondent.

Before

Administrative Law Judge Steffey

Pursuant to notice of hearing issued February 22, 1980, a hearing in
the above-entitled proceeding was held on April 3, 1980, in Evansville,
Indiana, under section 105(d) of the Federal Mine Safety and Health Act
of 1977.
Upon completion of the evidence presented by the parties, I rendered
the bench decision which is reproduced below (Tr. 57-65):
This hearing involves a Petition for Assessment of Civil
Penalty filed in Docket No. KENT 79-7 on May 21, 1979, by
the Mine Safety and Health Administration seeking to have
eivil penalties assessed for two alleged violations of
30 CFR 77.1710(e) by Middle Kentucky Construction, Incorporated.
The issues in this proceeding, of course, are whether
a violation of section 77.1710(e) occurred, and, if so, what
civil penalty should be assessed after consideration of
the six criteria in section llO(i) of the Act. The parties
have entered into stipulations with respect to some of the
criteria, but the first matter to be considered and really
the largest issue in this case is whether a violation occurred.
Section 77 .1710 prov:l.des that employees working in
a surface coal mine shall wear protective clothing. And
subsection (e) of that section provides that the employees
will wear suitable protective footwear. There is a practically identical provision in the underground portion of the
regulations which is section 75.1720, subsection (e) which
has the same language as section 1710 has. Namely, that
the miners will wear suitable protective footwear.

1137

MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.)
The two citations involved in this proceeding are
Citation Nos. 399710 and 399711. Both of them were issued
the same day and the only difference between them is a
mechanic, in one instance, was not wearing what the inspector
felt to be suitable protective footwear, and in the other
instance a person who lubricates equipment and does
other maintenance work was not wearing what the inspector
felt was suitable protective footwear.
In his testimony, the inspector indicated he believed
the term, suitable protective footwear, had to be interpreted
in accordance with the job that a given miner is doing. In
these two instances, the inspector felt that it was quite
likely and, in fact, that it was probable a mechanic
or a maintenance man might have something fall on his feet
which could crush them. And, that he felt that these two
gentlemen involved in the two citations should have been
wearing steel-toed shoes. The operator's contention in
this case is that he agrees that the term, suitable protective footwear, should be interpreted to deal with the situation confronting the individual miner and that he stresses
the fact that in this instance the men, both the mechanic
and the maintenance worker, were working around equipment
which is subject to having diesel fuel and other greases
or greasy substances accumulate on the floor or spill
on the ground and that it's quite possible for these
individuals to slip.
And that he felt that the greater danger to the employees
was that they would slip and hurt themselves rather than that
something would fall on their feet, because, for example, he
says that any heavy piece of equipment that might be used
by a mechanic, such as a part of an engine or transmission,
would be lifted by a crane and that the men themselves
would not be handling heavy equipment or parts.
There is a considerable amount of merit to the operator's
contention that the phrase, suitable protective footwear,
in the instances here involved could well indicate that
the men ought to wear equipment that would keep them
from sliding on floors or places that are slippery, but
there's also a considerable amount of merit to the inspector's
contention that even though he agrees that it's helpful
to have nonslipping soles on the shoes that the men wear
in such an area, that it's also important that they
be protected from falling objects. And, of course, even
a big wrench or a big hammer could easily fall on a person's foot with enough force to cause him to miss a day's
work that he wouldn't have missed otherwise had he had
on the steel-toed shoes.

1138

MSHA v. Middle

Kentucky, Docket No. KENT 79-7 (Contd.)

So, the regulations are designed to protect people
against all dangers and while there's a considerable
amount of merit to the operator's argument in this case,
I think that the inspector's contention that steel-toed
shoes are required is also a reasonable interpretation
of the phrase, suitable protective footwear, and, therefore,
I find a violation of section 77.1710(e) did occur.
The inspector presented as Exhibit 8 a picture of a
sign which indicates that the operator does require that
hard hats and steel toes be worn in the area involved in
this proceeding.
The spokesman for the operator in this proceeding
indicated that the company is extremely safety minded and
it was their intention for people to wear steel-toed shoes
in this area, and the inspector agreed this is a company
which should be at the top of the list for those who
encouraged and insisted on safety-minded activities at its
mine.
The facts did show also that the gentlemen involved
in these two citations, the mechanic and the maintenance
man, did not specifically obtain the operator's permission
to wear shoes which may have protected them from slipping
but did not have steel toes on them.
The former Board of Mine Operations Appeals in
North American Coal Corp., 3 IBMA 93 (1974), held with
respect to a similar provision in section 75.1720, that
if any operator had erected a sign advising people to
wear safety goggles and the individual miner did not
wear the safety goggles, even though they were provided
by the company, that no violation of the section there
involved should be found to have occurred.
The Commission in United States Steel Corp. v. MSHA,
in a decision issued September 17, 1979, 1 FMSHRC 1306,
held that that North American case decided by the Board
should be limited to the language of that standard which
was, as I said, 30 CFR 75.1720.
The effect of that is that I don't think the
Commission would favorably look upon a holding in this
instance that the fact that these two gentlemen had failed
to comply with the operator's clearly exhibited sign as
shown in Exhibit 8, that steel toes were required, is a
reason to find that no violation occurred.
We now come to the six criteria, as to which there
have been some stipulations. First, it has been agreed
that }liddle Kentucky Construction, Incorporated, is subject
to the jurisdiction of the Act and the regulations promulgated

1139

MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.)
thereunder. It was also stipulated that the inspector involved was properly a representative of the Secretary
and has the authority to make the inspection involved in
this case. As to the criterion of whether the payment of
penalties would cause the operator to discontinue in business,
it was stipulated that payment of penalties would not cause
the operator to discontinue in business. It was also
stipulated that Middle Kentucky is a small company
and, therefore, I find that any penalties should be in a
low range of magnitude.
The inspector's Exhibits 3 and 6 show that the
operator made a normal good faith effort to achieve
rapid compliance and it was so stipulated; therefore,
any penalties assessed should take, and will take, that
mitigating factor into consideration.
The inspector's Exhibits 2 and 5 show that the
inspector did not think the operator could have known or
predicted the occurrence of the two workers failing to wear
safety-toed shoes. And that finding by the inspector
is consistent with the operator's testimony to the effect
that neither the mechanic nor the maintenance man obtained
the operator's permission when they came to the mine without
safety-toed shoes. Therefore, the evidence shows that
the operator was nonnegligent in the occurrence of the
two violations.
The only criterion left to be considered then is
that of gravity. The inspector agreed that it was important
that the men wear shoes that would keep them from slipping
and they apparently were doing so. So, that would have
been some protection from one of the hazards to which they
are exposed in their work. The inspector's illustration
of an accident that occurred to him when he was not wearing
safety-toed shoes many years ago before the effective
date of this Act and also one given by the operator's
spokesman show that safety-toed shoes may or may not be
sufficient to keep a person from having an injury, but
they at least are some protection and it's better to
have some protection than no.ne.
The specific point that is being made here is that
a heavy object may fall on one's toes where the safety
toe is helpfui, as in the illustration given by the inspector,
but in the one given by the operator's.spokesman the object
fell just past the area covered by the safety-toed shoe
and therefore injured the miner's arch at a point that was
not protected by the steel toes. Of course, the inspector
pointed out that some operators require a steel protective
plate over the arch as well as over the toe and that, of
course, would have been protection in the situation given
by the operator's spokesman.

1140

MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.)
But the inspector does not feel that requiring a
steel plate over the arch is within the confines of protective footwear as it's now interpreted by the inspector.
So, I think in this instance that we can find that considering the type of work these two miners were doing and the
possibilities that still exist for injury that the violation
was only moderately serious.
There was some testimony in this case about the fact
that the operator requires the miner who violates the regulation which the company is trying to enforce to pay the
penalty, if one is assessed, for his failing to carry out
the company's and the Government's safety regulation·.
That may be effective in bringing about more consistent
conscientious adherence to the safety regulation than we would
have without the provision, but I don't believe that the Act
contemplates that I am to take the financial circumstances
of a given miner into account in assessing a penalty. As the
Conunission stated in the United States Steel case cited above,
it is well settled that operators are liable for violations
without regard to fault. So, I don't think in the assessment
of a penalty I should transfer from respondent to an individual
miner application of the criteria of negligence or gravity
or whether the payment of penalties would affect an individual's financial conditicn. I don't think those are matters
that I should consider in light of the way the Act was drafted
and should be enforced. Consequently, I'm not taking those
matters into consideration.
Nevertheless, I think that there are many extenuating
circumstances about this case and the conditions under
which the employees were working and the fact that the
inspector does not think that the operator was negligent
which indicates that a small penalty should be assessed
in this instance. Therefore, a penalty of $15.00 will
be assessed for each violation.
WHEREFORE, it is ordered:
Respondent, within 30 days from the date of this decision, shall pay
civil penalties totaling $30.00 which are allocated to the two violations
as follows:
Citation No. 39971010/31/78 ·§ 77.1710(e) ••••••••••••••• $15.00
Citation No. 399711 10/31/78 § 77.1710(e) ••••••••••••••• 15.00
Total Penalties in Docket No. KENT 79-7 •••••••••••• $30.00
~

_, .,

f.A'1-0-

k:\. r·a
'-....),

. rt:~;./ ,/' ._,

~

Richard C. Steffey
&-7
Administrative Law Judge
(Phone: 703-756-6225)

1141

/-

MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.)

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)
Middle Kentucky Construction, Inc., Attention: Byron Terry, Safety
Director, Crapshooter Mines, P.O. Box 53, Jetson, KY 42252
(Certified Mail)

1142

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

2 2 MAY 1980
McCOY ELKHORN COAL CORPORATION,
Applicant

: Application for Review
:·Docket No. KENT 80-122-R

v.

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

Order No. 721484
December 5, 1979
No. 4 Mine
DECISION

Appearances: Fred G. Karem, Esq., Lexington, Kentucky, for Applicant;
William F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, for Respondent.
Before

Administrative Law Judge Steffey

Pursuant to an order issued February 20, 1980, a hearing in the aboveentitled proceeding was held on March 28, 1980, in Pikeville, Kentucky,
under section 105(d) of the Federal Mine Safety and Health Act of 19i7.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 260-275):.
This proceeding involves an Application for Review which
was filed by McCoy Elkho.rn Co.al Corporation on December 31,
1979, in Docket No. KENT 80-122-R. The Application seeks
review of Order No. 721484 issued under sections 107(a) and
104(a) of the Federal Mine Safety and Health Act of 1977. The
order alleges a violation of 30 CFR 75.703. The civil penalty
issues which will be raised when and if MSHA files a Petition
for Assessment of Civil Penalty were consolidated with the
issues raised by the Application for Review and evidence was
received at the hearing concerning the six criteria which
must be considered if a violation under section 75.703 is found
to have occurred. This decision will sever the civil penalty
issues· for future decision when I have received the Petition
for Assessment of Civil Penalty. That may be several months
after this decision is issued. The Applicant has raised
several factual issues in its Application for Review but
the primary issue, of course, in any case where an order is
issued under section 107(a), is whether an imminent danger
existed at the time the order was issued. In order to apply
the law to any case, it's necessary to make some findings
of fact and I shall now make those findings.

1143

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
Findings of Fact
1. McCoy Elkhorn Coal Corporation operates three coal
mines which have been numbered 1, 3 and 4. The No. 4 mine
is the one which has primarily been discussed in this proceeding. That is the mine in which the imminent danger
order was issued. The No. 4 mine operates on two production
shifts and has a maintenance shift on the third shift. The
mine utilizes. conventional mining.methods and uses a cutting
machine, loading machine, two shuttle cars, a conveyor belt,
and two roof bolting machines. The average daily production
from the No. 4 mine is approximately 600 tons. The production from the No. 3 mine is also 600 tons and the No. 1 mine
produces approximately 1,200 tons of coal a day. T:he total
production, therefore, of the three mines is, depending on how
well coal is running, 2,400 to 3,400 tons per day. McCoy
Elkhorn.is an affiliate of General Energy which seems to
own some other coal mines and may do some oil exploration.
2. Inspector Charles Chafin on December 5, 1979,
made an inspection at the No. 4 mine. He was accompanied
underground by Mr. Michael Norman who is McCoy Elkhorn's
Safety Director. When Inspector Chafin arrived on the
section he first made an inspection to determine whether
the equipment had frame grounds. To do that, it was
necessary to pull the shuttle car, which in this instance was
the right-drive shuttle car, up beside the loading machine.
By doing that, he could check with his ohmmeter to determine whether there was continuity of the frame ground on
both pieces of equipment.
At that time it was agreed by both Inspector Chafin
and the company's electrician, who.was Mr. Reed, that the
frame ground was inoperable on either the shuttle car or
the loading machine. Therefore, the inspector checked the
frame of the right-drive shuttle car and determined that
it was not energized. Then he had the right-drive
shuttle car operator, who was Mr. James Stotridge, to back
the right-drive shuttle car up approximately 40 feet outby
the loading machine. At that point, Inspector Chafin
knew that either the loading machine or the right-drive
shuttle car had a defective frame ground. He did not know
which had the defective frame ground, so he instructed
the mine personnel to get the .disconnect, which is also
called a cathead in this case, and bring it up to the
right-drive shuttle car so that he could check the continuity of the ground wire in the trailing cable.
He determined when he was able to place his ohmmeter on
the shuttle car and also upon the ground wire on the shuttle
car, that there was not continuity in the ground wire·of the

1144

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
shuttle car's trailing cable. At that point, he told Mr.
Norman, the Safety Director, that the shuttle car should
stay parked where it was until the trailing cable had been
further checked.
3. while the men were in the process of bringing
the cathead or disconnect for the trailing cable up to the
right-drive shuttle car, Inspector Chafin also pulled, or
had someone pull, the left-drive shuttle car over to the
loading machine and made a check for frame-ground purposes
on those two pieces of equipment and it was established
that they both did have operable fralile grounds. By process
of elimination, Inspector Chafin knew that the right-drive
shuttle car was the one which had a defective trailing
cable or defective frame ground.
4. The right-drive shuttle car operator, Mr. James
Stotridge, got off of the right-drive shuttle car as soon
as he had pulled it back from the loading machine and proceeded to assist the electrician in bringing the cathead or
disconnect up to the right-drive shuttle car so it could be
inspected by Inspector Chafin.
5. After the inspector had determined that the
ground wire was defective in the trailing cable, the electrician and Mr. Stotridge began to look for the defective
place in the cable and they found it before the inspector
and Mr. Norman had gotteri out of shouting distance. The
result was that the inspector came back and looked at the
place which they had located which was a soft area in the
permanent splice, A cut was made into the permanent splice.
It was determined that the ground wire was separated
approximately one inch which meant there was no continuity
and the trailing cable would not have_performed its intended
purpose of grounding the machine in case of an electrical
fault. The inspector, at that point, asked the personnel
to cut the defective permanent splice out of the trailing
cable and asked th~m for the splice so that he could use it
as the subject of a memo to the head of the Mine Safety and
Health Administration for the purpose of trying to get the
maker of the splice, the Southern Mine and Cable Service Company,
to improve on the quality of its splices since the inspector
had encountered several other defective splices made by the
same company. All mine personnel indicated to the inspector
that the should ask their supervisor, Mr. Charles, the
Superintendent of the mine, about taking the splice.
6. Mr. Reed, the electrician, then proceeded to
install a new permanent splice. He then checked the trailing cable to determine that there was continunity on the

1145

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
ground wire and the equipment was reenergized even though
there was no use made of that right-drive shuttle car on
December 5 for production of coal. Coal was produced on
the section that day, but because of the mining development at that point only the left-drive shuttle car was
utilized for transporting coal.
7. When Inspector Chafin and Mr. Norman reached
the surface of the mine, they went into the· mine office
where Mr. Charles, the Superintendent, was waiting for
them and the inspector was carrying the defective
permanent splice. The inspector either asked or told Mr.
Charles that he was going to take the cable back to the MSHA
Office for the purpose of demonstrating what a poor splice
the Southern Mine and Cable Service had installed in the cable
to the right-drive shuttle car. Mr. Charles took exception
to giving the inspector the splice because Mr. Charles stated
that he wanted to show the splice to Southern Mine and Cable
Service Company, so that he could ask them to improve on their
splices. Mr. Charles had been using that company's services
for approximately 5 years to repair his trailing cable and
had not previously been dissatisfied with its work. Also,
if one looks at the defective permanent splice which is
Exhibit 2, it is actually impossible to determin.e whether
the splice was actually defective at the time it was made.
As the inspector testified, and as others also testified,
the ground wire in the splice probably separated under
strain. If it separated under strain, then it could have
been made properly in the first place, but still would have
looked defective, and would have been defective, at the time
it was found to have a separated ground wire on December 5, 1979.
In order to apply the foregoing findings of fact to
the law as it exists at the present time, I think I should
give the definition of imminent danger which was set forth
by the Seventh Circuit Court of Appeals in Freeman Coal
Mining Co. v. Interior Board of Mine Operations Appeals,
504 F.2d 741, (1974). In that case, the court said that
an imminent danger exists when the condition is of such a
nature that a reasonable man would estimate that, if normal
operations designed to extract coal in the disputed area
should proceed, it is at least just as probable as not that
the feared accident or disaster would occur before elimination
of the danger. That definitiQn was also adhered to by the
Fourth Circuit Court of Appeals in Eastern Ass"c·iated Coal
Corp. v. Interior Board of Mine Operations Appeals, 491 F.2d
277 (1974). Of course, the court in each of those cases was
affirming the former Board of Mine Operations Appeals which
had originally formulated a very similar definition in
a case known as Eastern Associated Coal Corp., 2 IBMA 128
(1973) •
.

1146

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R

In United States Steel Corp., 3 IBMA 50 (1974), the
former Board held an imminent danger must be based on the facts
existing at the time the order was issued. Another well
known case the former Board decided in dealing with the
question of imminent danger occurred in Old Ben Coal Co.,
6 IBMA 256 (1976). In that case, the inspector had seen
a miner riding on a man trip with his feet dangling over
the side of the car and the inspector said that it was an
imminent danger for a man to ride with his feet dangling
off the car. The miner got off the car. The inspector
then wrote an immine.nt danger order. The Board affirmed the
judge's decision in that case which had held that since the
imminent danger had to exist at the time the order was
issued, the inspector's order was invalid because the imminent danger did not, in fact, exist after the miner got off
the car.
I think the Old Ben case applies very strongly to the
facts we have in this case. We have a situation in which
Inspector Chafin was very concerned about whether this
right-drive shuttle car should continue to be used. The
inspector said that if it were to continue to be used with
the lack of a proper frame ground on it, that it could become
energized, and if it did become energized, either the operator
in getting off of it could be electrocuted, or any other miner
who might touch the frame of the machine could be electrocuted.
The inspector's concern was justified, but the difficulty that I have with the o~der is that the inspector says
he issued it when he determined that the frame ground wire
was separated. Now, we have a diagram in this case which
is Exhibit 6, which was drawn by the inspector and that shows
without any doubt and the testimony also shows without any
doubt that when the inspector determined that there was no
continuity in the ground wire, there was no power on the
shuttle car whatsoever. Not even the power of a battery
was involved because the determination of continuity of the
ground wire is based on the ability of the ohmmeter to test
the existence of an operable grounding mechanism. Since the
inspector issued the imminent danger order verbally at a
time when there was no power on the machine, there could
not have been an imminent danger at that moment.
Now it is true, just as in the case where the miner's
feet were dangling off the car, that there could have been
an imminent danger at the time the operator of the shuttle car
moved it back from the loading machine, but the inspector
didn't know at that point that the right-drive shuttle car
was the piece of equipment which had the defective permanent
ground and the inspector didn't say that he issued the i.nuninent

1147

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R

danger order at that point. He couldn't have, because he
didn't know for certain that the lack of a frame ground might
not be on the loading machine, and he didn't issue one for
the loading machine and the shuttle car. He only issued it
on the right-drive shuttle car. So it is the equivalent of
the foot-dangling situation as I see it. The inspector was
concerned about the existence of a frame ground and the possibility of someone being electrocuted and he was justified in
being concerned, but he did not issue the imminent danger order
at the time the hazard may have existed because the inspector
was not cert~in that there was a lack of a frame ground until
after the shuttle car had been deenergized.
In the arguments today, I think the attorneys may have
overlooked one of the points that most concerned the inspector,
and that concern was discussed in the Eastern Associated case,
supra, which was appealed to the court, wherein the Board of
Mine Operations Appeals had inserted the clause; "if norma~
operations designed to extract coal in a disputed area proceed". That proviso was not in the definition that Congress
placed in the Act, but all the courts which considered the
issue agreed with the Board that the proviso was legitimately inserted because, unless the miners were going to keep
mining coal, there wouldn't be exposure to hazards. Here the
inspector said that he was concerned that if he issued only
a citation, that they mi~ht put this defective trailing cable
back on the right-drive shuttle car so that the strain would
continue on the trailing cable and produce an energized frame
which might have caused someone to be electrocuted.
Well, in this case we have all sorts of facts that just
simply do not support the inspector's concern in this instance
because first of all, there's nobody that challenges the company's
testimony through all it's witnesses that the right-drive
shuttle car was not going to be used that day. So, if normal
mining operations had continued, that shuttle car would not
have been used. In addition to that, before the inspector
left the area, the defective ground wire having been discovered, the trailing cable had been severed and the defective
splice had physically been removed. Therefore, he could have
left the area knowing that the trailing cable could not be used
again until it had been properly repaired.
There are some other aspects of the case which have
been argued by the parties and I think that there is some
merit in most of them. One of them is whether the inspector
ever made it clear that he had really issued an imminent
danger order. The inspector said, and Mr. Taylor argues,
that the inspector told them that the right-drive shuttle car

1148

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
was parked and was not to be moved until the trailing cable
had been corrected. Mr. Norman says that he asked the inspector if th~t statement was meant to be an order or a citation,
and apparently the inspector did not give him a candid reply.
That is, the inspector left the company in doubt as to whether
he had found existence of an imminent danger.
I'm not holding in this case that an inspector has to
use the exact definition that I just discussed in the Court of
Appeals cases, nor am I saying that he has to use the exact
language in the Act, but, when he was asked whether he had
issued an imminent danger order, I think he was obligated
to make it perfectly clear that he either had or had not.
I don't think there should be any doubt about it. Yet,
every witness who testified here today on behalf of the Company,
without exception, and those witnesses were put out of the
hearing room until they testified, all said they thought they
had been issued a citation and not an imminent danger order.
Whatever language the inspector uses, he must make sure
that the company knows that he has issued an imminent danger
order. Although the imminent danger had ceased to exist
in this case before a violation was cited, miners who are in
doubt about the inspector's action may continue to work and
expose themselves to an imminent danger without actually
realizing that they have been ordered to withdraw from the
mine except for purposes of correcting the imminent danger.
In Kaiser Steel Corporation, 3 IBMA 489 (1974), the
former Board of Mine Operations Appeals stated that an
inspector's manual does not have the force of regulations.
I think the inspector correctly said in this case that he was
not obligated to follow the exact provisions of the inspector's manual, a portion of which is. Exhibit B in this case,
which does say or at least suggests, that the inspector when
he issues an imminent danger order should place a closed poster
on the controls of the equipment if equipment is involved.
Now, the inspector explained his reason for not doing that
in this case by saying that he actually issued an imminent
danger order on the trailing cable and not the right-drive
shuttle car, and that if he had tried to put a danger poster,
closed poster, on the trailing cable, that it would not have
stayed on it even if he had done so. Regardless of whether
the inspector has to follow the manual, as I have indicated,
I think he has to make it clear to the company's personnel
•that he has issued an imminent danger order. If the inspector
had put a closed poster on the trailing cable or had laid one
down there by it, no one would have been likely to have claimed
in this case that there was doubt as to whether he had issued
an imminent danger order.

1149

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
Also the inspector's order states that a violation of
section 75.703 existed at this mine in that the frame of the
right-drive shuttle car was not frame grounded. So it is a
little hard when you read that order to put out of your mind
the fact that you have only a trailing cable that has been
cited and not also a right-drive shuttle car. The inspector
said his primary concern was that someone would use the rightdrive shuttle car, that its frame would become energized, and
that someone would touch the frame and be electrocuted. There
is no reason why the inspector could not have put his closed
poster on the right-drive shuttle car because that would have
kept anyone from using the very piece of equipment about which
he was concerned. It's true that his order says the area
covered by the withdrawal order was the trailing cable to the
right-drive shuttle car; even though that is stated, the fact
remains that he was concerned about someone using the rightdrive shuttle car. So, it is difficult to separate the trailing cable from the right-drive shuttle car since the imminent
danger has to relate to the shuttle car as well as relate to
the trailing cable.
Mr. Taylor has indicated that he feels that this Order
No. 721484 complies with all the provisions of section 107(a),
as well as subparagraph (c) because the order contains the
detailed description of the condtions or practices which cause
and constitute an imminent danger. The former Board of Mine
Operations Appeals held in Armco Steel Corp., 8 IBMA 88 (1977),
that an inspector is required to write an imminent danger
order so that the person who receives a copy of it will know
exactly what constitutes the imminent danger. I am not at
all sure that the inspector made it clear in this case because,
you see, he issued the imminent danger order verbally before
he knew for certain about the separation of the ground cable
and yet, the order itself states "when checked with an
ohmmeter the Ground Conductor was separated approximately
one (1) inch in a vulcanized splice made by Southern Mine
and Cable Service." Now, you see that separation was not
known at the moment he issued the order, so it is not a
part of the imminent danger at that point. I think one
other problem here was that the inspector was intent on,
and I think he was properly motivated, but he was intent on
trying to get Southern Mine and Cable Service to do a better
job on their splices. In trying to fight that battle and
show documentation of it in the order he was issuing, the
inspector lost sight of what he really wanted to cite as
an imminent danger. Now perhaps not any one of these
items by itself would be sufficient for me to hold that the
inspector's order was invalid, but I think when you add all
these problems up, that the company had a legitimate complaint here about whether it had been properly treated.

1150

McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R
In Old Ben Coal Corp. v. Interior Board of Mine
Operations Appeals, 523 F.2d 25 (7th Cir. 1975), the court
held that an inspector should be upheld unless he has severely
abused his discretion. The court, in that case, said the
operator of a coal mine is primarily interested in production
and that he may, in some instances, give less emphasis to
safety than he should because giving attention to safety
regulations may cut down on the amount of coal he can
produce. So the court said when an inspector is in the mine
he is concerned about mine safety and he is the one who may
have to disagree with management, as to enforcement of safety
regulations. So the court gave the inspector, as it should,
an edge any time we have a real close point about whether
there was an imminent danger or wasn' t. Any time there is
doubt, the inspector should be upheld unless he has clearly
abused his discretion. I think in this case there are just
too many areas where the inspector's order was unclear as
orally issued and, when written, was based on facts not
known when the order was orally issued.
I agree whole heartedly that the inspector was properly
motivated and I congratulate him on being concerned. It is
certain that he accomplished his objective in seeing that
this equipment was repaired and that is was not used in a
condition that could have caused someone to be electrocuted.
But I'm required to follow the precedents the former Board
has laid down, until the Commission disagrees with the Board,
or the Commission reverses me for misunderstanding the
precedents, but I think in this instance, there was not an
imminent danger on the facts that existed at the time the
inspector issued the order. Therefore, I find that the
order is invalid and should be vacated~
WHEREFORE, it is ordered:
(A) Order No. 721484 dated Decmeber 5, 1979, is vacated
and the Application for Review in Docket No. KENT 80-122-R
is granted.
(B) The civil penalty issues are severed from the issues
raised by the Application for Review and the civil penalty
issues will be decided on the basis of evidence received in
this proceeding when I receive a petition for assessment of
a civil penalty for the violation of section 75.703 alleged
in Order No. 721484. 1./

~c.~~
iz;:J-

1./

Richard C. Steffey
Administrative Law Judge
(Phone 703-756-6225)
Even after an imminent danger order has been vacated, the violation cited
therein may become the subject of a civil penalty proceeding (Eastern

1151

McCoy Elkhorn,. MSHA, Docket No. KENT 80-122-R

Distribution:
Wiliiam F. Taylor, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Fred G. Karem, Esq., Attorney for McCoy Elkhorn Corporation, Shuffett,
Kenton, Curry & Karem, 109 North Mill Street, Lexington, KY
40507 (Certified Mail)

1./ (Continued from p. 9
Associated Coal Corp. 1 IBMA 233 (1972); Zeigler Coal Co., 2 IBMA 216
(1973); and Zeigler Coal Co., 3 I.BMA 64 (1974)).

1152

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

Phone (703) 756-6236

Civil Penalty Proceeding

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

Docket No. LAKE 80-247
A.C. No. 33-01069-02027V

Petitioner

v.
Sunnyhill No. 9 North Underground
Mine

PEABODY COAL COMPANY,
Respondent
PEABODY COAL COMPANY,

Application for Review
Applicant

v.

Docket No. VINC 77-91
Order No. 1 WS;
January 27, 1977

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

Sunnyhill No. 9 North Underground
Mine

DECISION
Before:

Judge Charle·s C. Moore, Jr.

On May 5, 1978, I issued a decision in Docket No. VINC 77-91 in which I
Tuled that MSHA had failed to prove a violation of 30 C.F.R. § 75.400. I
based that ruling principally upon the decision of the Interior Department's
Board of Mine Operations Appeals in Old Ben Coal Company, 8 IBMA 98 (1977).
On December 12, 1979, the Federal Mine Safety and Health Review Commission
reversed the Board's Old Ben decision (Commission Docket No. VINC 74-11)
and on the same date reversed my decision in Peabody and remanded it for
further proceedings consistent with the Commission's Old Ben decision. Thereafter, on April 4, 1980, the Secretary of Labor filed the penalty proceeding
which has been assigned Docket No. LAKE 80-247.
The Secretary has moved for summary decision in both cases and Respondent has opposed this motion and moved to dismiss the penalty case. For the
reasons set forth below, I grant Peabody's motion to dismiss the civil penalty case and grant the Secretary's motion for a decision affirming the
unwarrantable failure order which was the basis of both cases.

1153

As to the affirmance of the withdrawal order, I rely on my decision of
May S, 1978. On page 3 of that decision I stated that but for the Board's
Old Ben decision "I would probably have found the af orementioried coal
dust accumulations to have constituted an 'unwarrantable failure' violation
* * *·" The word "probably" caused the above to be an understatement. The
record clearly shows the existence of the accumulations and the inspector
estimated that because of the extent of the accumulations the operator
should have been aware of them for at least a week prior to the inspection.
That is enough to support a finding of unwarrantability. This estimation
was not rebutted and, as noted in the opinion, .even Old Ben's witness thought
that a notice of violation would have been justified if the accumulation
had not been cleaned up. The.fact that the inspector did not find any
notation of an accumulation when he examined the preshift inspection reports
does not rebut his estimate that the accumulations had existed for at least
a week. There is no need for further evidence or for further briefing. The
order of withdrawal is affirmed.
As to Docket No. LAKE 80-247, an earlier civil penalty petition, Docket
No. VINC 78-320-P, sought civil penalties for the same alleged violation
involved in Docket Nos. LAKE 80-247 and VINC 77-91. After my May 5, 1978,
decision in Docket No. VINC 77-91, Peabody moved to dismiss Docket No. VINC
78-320-P because I had already ruled that no violation had been established.
The motion to dismiss was filed on July 10, 1978, and MSHA did not oppose the
motion. I granted the motion to dismiss on August 2, 1978, and MSHA did not
seek review. !:_/
Respondent's motion to dismiss the first civil penalty proceedings
prayed for dismissal with prejudice (see Exhibit "D" of petition for assessment of civil penalty in Docket No. LAKE 80-247). The August 2, 1978, ruling granted dismissal for the reasons set forth in the motion (vacation of
the underlying order) and for the Secretary's failure to oppose the motion.
The question is how to construe an involuntary dismissal which does not indicate on its face whether it was granted with or without prejudice after the
moving party requested dismissal with prejudice.
!:_/ In the interim between remand of Docket No. VINC 77-91 to me on
December 12, 1979, and the filing of the second civil penalty case, Docket
No. LAKE 80-247 on April 4, 1980 (I actually had some advance notice that
the penalty suit would be filed but I do not recall when that notice was
received), the parties had been negotiating a settlement of the review proceeding. I gathered that the Government felt that it had won its principal
point in the Old Ben case and that since the penalty case in Peabody had
already been dismissed there would be little point in devoting much effort
toward the remand. I was led to believe that Peabody felt the same way and
that the matter would be resolved but I did not know whether the parties
intended that Peabody withdraw its petition for review or that the Government withdraw its opposition to that petition. In any event those negotiations broke down and the second penalty suit was filed.

1154

- Rule 2700.l(b) of our Rules of Procedure states that where "any procedural question [is] not regulated by the Act, these Procedural Rules, or the
Administrative Procedure Act, the Commission or any Judge, shall be guided
so far as practicable by any pertinent provision of the Federal Rules of
Civil Procedure." Neither the Act nor the Procedural Rules nor the Administrative Procedure Act contain provisions governing the construction of an
order of dismissal. Rule 41 of the Federal Rules of Civil Procedure, however, entitled "Dismissal of Actions," states 1-n paragraph (b) pertaining
to involuntary dismissals: "Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any dismissal
not provided for in this rule [exceptions that are not applicable], * * *
operates as an adjudication upon the merits." As I read this rule, with
certain exceptions that are not pertinent, any involuntary dismissal, that
is, where one party asks for the dismissal of the other party's case, if
granted, is with prejudice.unless the court states otherwise in its dismissal order. That was also my understanding at the time the dismissal
order was issued. My dismissal of the case was therefore with prejudice
and the doctrine of ~ judicata applies.
The statement in footnote 1 on page 2 of the Secretary's second petition for civil penalty implies that there was some duty on the part of
Peabody to serve its motion to dismiss in the first penalty case on
counsel who were representing the Department of Labor in Docket No. VINC
77-91. Of course there was no such duty on Peabody, but there was a duty
upon the Secretary to oppose the motion to dismiss if he disagreed with
the motion and to seek review of the order of dismissal if he disagreed with
that order. The Secretary did neither and cannot now be heard to complain
because counsel involved with one docket number were not served with papers
in a different docket number.

~ (? f'7l

Pf}lll#(
Charles C. Moore, Jr.
Administrative Law Judge

i.

Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235,
St. Louis, MO 63166 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900-15th Street,
NW., Washington; DC 20005 (Certified Mail)

1155

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

~ 9 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket Nos.

Assessment Control Nos.

15-09969-03002
BARB 79-327-P
Processing Division

v.

THE HOKE COMPANY, INC.,
Respondent

PIKE 79-113-P
15-05447-03004
Murray Strip Mine
DECISION

Appearances:

Darryl A. Stewart, Esq., and George Drumming, Jr., Esq.,
Office of the Solicitor, U.S. Department of Labor,
for Petitioner;
Byron W. Terry, Safety Director, Owensboro, Kentucky,
for Respondent.

Before

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 22, 1980, a hearing in
the above-entitled proceeding was held on April 3, 1980, in Evansville,
Indiana, under section 105(d) of the Federal Mine Safety and Health Act
of 1977.
The consolidated proceeding involves two Petitions for Assessment
of Civil Penalty filed by the Mine Safety and Health Administration.
The Petition in Docket No. BARB 79-327-P filed March 26, 1979, seeks to have
civil penalties assessed for five alleged violations of the mandatory health
and safety standards by The Hoke Company. The second Petition was filed
on May 17, 1979, in Docket No. PIKE 79-113-P by MSHA and seeks assessment
of a civil penalty for an alleged violation of 30 CFR 71.107 by The Hoke
Company.
On March 20, 1979, counsel for MSHA filed a Motion for Approval of
Settlement reached by the parties with respect to Docket No. PIKE 79-113-~.
The motion states that respondent has agreed to pay the full amount of a $34.00
penalty proposed by the Assessment Office for the single violation of section 71.107 involved in Docket No. PIKE 79-113-P.
The Settled Case
Docket No. PIKE 79-113-P
The Assessment Order in the official file indicates·that the respondent
produced 384,560 tons of coal on an annual basis and that 190,935 tons
annually are produced at the Murray Strip Mine which is involved in

1156

MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.)
Docket No. PIKE 79-113-P. On the basis of those production figures, I find
that respondent operates a medium-sized business and that any penalties which
might be assessed should be in a moderate range of magnitude.
There is no evidence in the file or in the Motion for Approval of
Settlement pertaining to respondent's financial condition. · In the absence
of any evidence to the contrary, I find that payment of penalties will
not cause respondent to discontinue in business.
Respondent does not have a large number of previous violations and
that factor should be considered as a mitigating circumstance when determining
penalties.
The specific violation of section 71.107 involved in this settled case
was alleged in Citation No. 9948403 which stated that respondent had failed
to submit a respirable dust sample or a reason for not sampling one employee
within the time period for submitting the required sample. Respondent abated
the violation very quickly by submitting a Miner's Status Change Notice
card showing that the sample had not been submitted for the miner concerned
because he no longer worked for respondent.
In such cirumstances, the violation was nonserious, but the violation
was a result of a rather high degree of negligence. Respondent abated the
violation within a much shorter time than was allowed for abatement in
the citation. Considering the conscientuous effort made by the respondent
in achieving rapid compliance, I find that· the Assessment Office proposed
a reasonable penalty of $34.00 for the alleged violation of section 71.107
and that respondent's agreement to pay the full am:ount proposed by the
Assessment Office should be .approved.
The Contested Case
Docket No. BARB 79-327-P
Citation No. 400126 9/19/78 § 77.400
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 38-41):
The contested part of this proceeding9 as I previously
indicated applies only to the Petition for Assessment of Civil
Penalty filed in Docket No~ BARB 79-327,..P. The issues in any
civil penalty case are whether there were any violations ·of the
mandatory health and safety standards, and, if so, what penalties
should be assessed based on consideration of the six criteria set
forth in section llO(i) of the Act. Three of those criteria
can be given a general evaluation in most cases. As I indicated
in my opening remarks in this case, the company has not at this
point, and I take it, will not present any financial information
and in the absence of such information, I find that the payment
of penalties will not cause the company to discontinue in business.

1157

MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.)
It has been stipulated that the company is subject to the
Act and to the regulations promulgated under it. It has also
been stipulated that the size of the preparation plant is such
that it processes approximately 125,000 tons annually and that
the controlling company produces about 384,000 tons on an annual
basis. Those findings support a finding fact that the company
is moderate in size and that any penalties to be assessed should
likewise be in a moderate range of.magnitude.
Exhibit 17 in this proceeding is a listing of violations for
which penalties have been paid by the company. According to that
exhibit, the company has ~at previously violated any of the
mandatory health and safety standards alleged in this proceeding.
It has been my practice to increase the penalty somewhat when there
is evidence before me showing that respondent has previously
violated the same section of the regulations which is alleged by
MSHA in the case currently being considered. Since respondent
has not previously violated the sections being considered in ·
this proceeding, the criterion of history of previous violations
will not be used to increase or decrease ariy penalty which may be
assessed under the other criteria (Tr. 56).
Turning now to the criteria of negligence and gravity and good
faith effort to achieve rapid compliance, I find that the first
citation before us in this proceeding, No. 400126 dated September 19,
1978, and alleging a violation of section 77.400(c), I find in
connection with that particular citation that there was a violation
of section 77.400(c) because that section does refer to the fact
that the guard should extend a distance sufficient to prevent a
person from reaching behind the guard and becoming caught in the
belt and pulley.
Considering the criterion of negligence, there has been
testimony that the company was aware of the provision I've just
referred to and that it considered the guard that was on the
pulley extended far enough to the rear of the pulley to keep
a person from falling into it. It is also indicated by the
record that other inspections had been made and apparently the
guard that was on the pulley was considered to be adequate by
inspectors other then the one who wrote this citation now before
us. In view of that fact, I find that there was a very low degree
of negligence in the occurrence of the violation.
From the standpoint of gravity, I think that the violation was
only moderately serious because it is a fact that the evidence shows,
particularly Exhibits A and Al through A4, that there was a facility
around the tail pulley which would keep a person from just walking
into it upright and the only way that a person would be near this
particular pulley would be for him to stoop under this construction
that surrounded the tail pulley and then he would probably be on
the alert just because of his going into an area like that.

1158

MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.)
But the fact remains that it would be possible for someone
to have his clothes caught in this place and he could be injured
in this pulley from the rear. So, based on the fact that there
was moderate seriousness and a low degree of negligence, I find
that a penalty of $15.00 should be assessed for this violation
of section 77.400(c).
Citation No .• 400127 · 9/19/78 § 77 .206(a)
Upon completion of introduction of evidence by the parties with
respect to the above citation, I rendered the following bench decision
(Tr. 55-56):
With respect to the alleged violation in Citation No. 400127,
I find that a violation occurred because the operator's witness
and the inspector both agree that three rungs in the ladder were
broken. The inspector does not contest the fact that the operator
was not using the portion of the facility that is here involved
at the time the citation was written and consequently it was not
being inspected at that time. So, there is not as great a degree
of negligence in that area as there would have been if this were
a place where the people were frequently traveling up and down
this ladder. Additionally, the operator's testimony shows that
there was a ladder and Exhibit B2 shows that there was a ladder
on the opposite side of this particular area cited by the inspector and it is alleged that the other ladder was being used instead of the one that was cited by the inspector. Additionally,
the ladder has only four rungs and is approximately 5 feet high;
therefore, the likelihood of serious injury as a result of any
of the rungs breaking if someone had used the ladder is less
likely than it would be if a great height were involved. Consequently, I find that there was moderate seriousness in connection with the violation. I think that extenuating circumstances
in this instance also justify finding that a penalty of $15.00
is adequate.
Citation No •. 400128 9/19/78 § 77.205(e)
Upon completion of introduction of evidence by the parties with respect
to the above citation, I rendered the following bench decision (Tr. 75-76):
My decision with respect to Citation No. 400128 is that,
as all testimony indicated there was a violation of section 77.205(e).
The company, I think, was a little more negligent in this instance
than it was in the previous violations, because, even though there
was not normally any use of this particular elevated walkway, there
having been only three uses of it between the time this violation
was written in September of 1978 and the present time, it was known
to the company that there had been an open section left where
another walkway might have been tied into this walkway at a
future date. And, it was known that there was a gap of three feet

1159

MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.)
in the handrails. So, I think that since the facility was
constructed with this gap in i~ that the company should have
put in a more stable handrailing than a rope, assuming that the
rope was there at the time the citation was written. Additionally,
there should have been an enclosed handrailing at the end where
the storage silo existed.
As for the gravity of the violation, there is agreement
of both the company's witness and the inspector that if a person were to fall from this area, it could be a fatal accident.
Therefore, I find that the violation was serious, and, in view
of this large degree of negligence in this instance, I find that
a penalty of $150.00 is appropriate.
Citation No. 400129 9/19/78 § 77.206(a)
Upon completion of introduction of evidence by the parties with respect
to the above citation, I rendered the following bench decision (Tr. 94-95):
I have taken additional testimony from Mr. Terry to be sure
that I didn't improperly assess too much in connection with the
alleged violation of section 77.205(e), and after further consideration, I find that there was at least a period of time when the
company was using the walkway and I still adhere to the ruling
that I made previously in the amount of penalty that I previously
assessed.
Turning to the one as to which we just had testimony, which
is Citation No. 400129 alleging a violation of section 77.206(a),
that section provides that ladders shall be of substantial construction and maintained in good condition. I find that a violation of section 77.206 occurred because the ladder was rusted,
was made of light materials, and did have an extensive area at
the top which made it difficult and dangerous to use. There is
evidence from the operator's witness which showed that at the
time the citation was written the silo was not being used because the company did not have orders that required the screening
operation that was involved in that portion of the facility for
which the citation was written. But the company's witness had
indicated that the facility was used at some point in time and,
therefore, I feel that the ladder should have been inspected and
it should have been.put in a proper and safe condition at the
original time the facility was used. I find that there was a
rather high degree of negligence in their failure to do so at
that time. It would have been difficult to negotiate this ladder.
Of course, as the company's witness has indicated, the likelihood of someone going on up the ladder was somewhat remote but
it would have been possible for someone to need to do some
maintenance work and it would have been possible for someone to
have tried to negotiate the ladder. He could have fallen because
of the inadequate construction. Therefore, I find that the
violation was serious and since it was a serious violation with
a high degree of negligence, I think a penalty of $150.00 is
appropriate for this violation.

1160

MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.)
Citation No. 400130 9/19/78 § 77.1707(b)
Upon completion of introduction of evidence by the parties with respect
to the above citation, I rendered the following bench decision (Tr. 106-107):
The final alleged violation in this case was contained in
Citation No. 400130 alleging a violation of section 77.1707(b).
I find that a violation of that section did occur. The provision
that was violated lists twelve items which are supposed to be
included in first-aid equipment at a prepartion plant and at mines.
The paragraph that caused Mr. Terry and his company to have less
than the full amount of equipment provided for in paragraph (b)
was the section which contains somewhat ambiguous phraseology
which is subject to an interpretation that a company would not
have to have a full complement of first-aid equipment unless
there were ten or more employees at the preparation plant. I
can see easily why a company might arrive at that conclusion and,
consequently, I find that there was a low degree of negligence
in their failure to have the equipment at this particular
preparation plant.
Insofar as gravity is concerned, as the inspector has
pointed out, the violation could be associated with considerable gravity if someone were to be seriously injured and not
have the appropriate first-aid equipment immediately available,
but in view of the company's good faith in trying to comply
with the regulation, I find that there were extenuating circumstances in this instance and that a penalty of $20.00 is appropriate for this violation of section 77 .1707 (b).
Summary of Assessment and Conclusions
(1) Based on all the evidence of record and the aforesaid findings of
fact, or the parties' settlement agreement, the following civil penalties
should be assessed:
Docket No. BARB 79-327-P

. ................... $ 15.00

Citation No. 400126 9/19/78 § 77 .400(c)
Citation No. 400127 9/19/78 § 77 .206(a)
Citation No. 400128 9/19/78 § 77. 205 (e}
Citation No. 400129 9/19/78 § 77 .206 (a}
Citation No. 400130 9/19/78 § 77.1707(b)
Total Penalties in Docket No. BARB 79-327-P

.................... 15.00
.................... 150.00'
. ................... 150.00
................... 20.00

........... $350.00

Docket No. PIKE 79-113-P
Citation No. 9948403 1/5/79 § 71.107 •••••••••• (Settled) •••• $ 34.00
Total Settlement and Contested Penalties in This
Proceeding .................. _•. . . . . . . • . . . . . . • • . . . . . . . $384. 00

1161

MSHA v. The Hoke Company, Docket Nos. BARB 79-327~P, et al. (Contd.)
(2) Respondent, as the operator of the Murray Strip Mine and Processing
Division, is subject to the Act and to the mandatory safety and health standards promulgated thereunder.
WHEREFORE, it is ordered:
(A) The parties' request for approval of settlement is granted and
the settlement agreement submitted in this proceeding in Docket No.
PIKE 79-113-P is approved.
(B) Pursuant to the parties' settlement agreement and the bench
decision rendered in the proceeding in Docket No. BARB 79-327-P, respondent
shall, within 30 days from the date of this decision, pay civil penalties
totaling $384.00 as set forth in paragraph (1) above.

~ C. ofL4JI'
Steffey~

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

Distribution:
Darryl A. Stewart, Esq., and George Drumming, Jr., Esq., Office
of the Solicitor, U.S. Department of Labor, Room 280, U.S.
Courthouse, 801 Broadway, Nashville; TN 37203 (Certified Mail)
The Hoke Company, Inc., Attention: Byron W. Terry, Safety Director,
Box 61, Cromwell, KY 42333 (Certified Mail)

1162

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

May 29, 1980

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

Civil Penalty Proceeding
Docket No. LAKE 79-191-M
A/O No. 11-01023-05001
Hastie Quarry & Mill

HASTIE MINING COMPANY,
Respondent
DECISION
Appearances:

Michele Fox, Esq., Office of the Solicitor, u.s.
Department of Labor, Chicago, Illinois, for
Petitioner;
Donald Hastie, Partner, Hastie Mining Company,
Cave In Rock, Illinois, for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
Pursuant to notice, the above case was heard on the merits in
Evansville, Indiana, on April 16, 1980. Following the conclusion
of the hearing and arguments by the parties' representatives, a
bench decision was issued which is set out in its entirety below:
BENCH DECISION
Judge Broderick:
Alright. The following is my decision in the
case of Secretary of Labor versus Hastie Mining Company, Docket Number LAKE 79-191-M. Appearances were
entered by Michelle Fox of the Office of the Solicitor of Labor, Chicago, Illinois, for the petitioner.
And by Donald Hastie, a partner in the Hastie Mining
Company, Cave-In-Rock, Illinois for Respondent.
Pursuant to notice a hearing on the merits was
held today April 16, 1980 in Evansville, Indiana.
George LaLumondiere and Jack Lester, both of whom

1163

are Federal Mine inspectors, testified on behalf of
Petit.ioner. Donald Hastie testified on behalf of
Respondent. Exhibits were introduced by both parties.
The parties have been given the opportunity to argue
their respective positions and each has waived its
right to file written proposed findings and briefs.
The following are my findings of fact:
FINDINGS OF FACT
Number one, Hastie Mining Company is the operator of a mine, a surface mine in Hardon County,
Illinois, known as the Hastie Quarry and Mill. Number two, the subject mine produces flurspar [fluorspar]
from its quarry. Number three, the products of the
mine enter interstate commerce. Number four, on
March 22, 1979 there were five miners working at the
subject mine. Three working partners and two paid
employees. Number five, respondent is a small mine
operator. Number six, respondent has no previous history of violations of the Federal Mine Safety and
Health Act or the regulations promulgated there under.
Number seven, on March 22, 1979, the subject mine was
inspected by Mr. George LaLumondiere, a mine inspector
and a duly authorized representative of the Secretary
of Labor. Number eight, on March 22, 1979, respondent
was using a Caterpillar 950 front-end loader which did
not have roll over protection. Number nine, on
March 22, 1979, a citation was issued by the inspector,
being Citation number 366434 charging a violation of
30 CFR 56.9-88. The termination due date on the citation was April 24, 1979. Number ten, respondent continued using the front-end loader after the issuance
of the citation. Number eleven, on April 27, 1979,
an order of withdrawal was issued by Federal Mine
Inspector, Jack Lester, being order number 365195
under section 104(b) of the Federal Mine Safety and
Health Act for failure to abate the forementioned
citation~
Number twelve, respondent has continued to
use the 950 Caterpillar front-end loader without having roll over protection after the issuance of the
order of withdrawal. Number thirteen, respondent
uses the front-end loader in its surface quarrying
and mining operation. It also uses it to clear waterways from an old abandoned mine works of sediment and
mud. If this work was not done the water would come
into the quarry where respondent's operation was being
conducted. Number fourteen, it would not be possible
to use the equipment in question, namely, the Caterpillar 950 front-end loader with roll over protection

1164

in the addits from which the mud and sediment is
cleared since the addits are only eight feet high.
Number fifteen, a new cab providing roll over protection for the Caterpillar 950 front-end loader would
cost approximately $5,431.62 for the part or parts
and would require approximately thirty-two manhours
to install it. The Fabick Machine Company of Marion,
Illinois which does this kind of work would charge
$30.00 an hour for the labor required in this
installing of the cab. After the initial installation, it would take approximately four manhours to
remove the cab and five to six manhours to reinstall
it. The price quoted above includes a heater and
defroster. Number sixteen, respondent has two additional front-end loaders which he uses in his operation, both of which are equipped with cabs including
roll over protection. The following are my conclusions of law:
Conclusions of Law
30 CFR 56.9-38 promulgated pursuant to the Federal
Mine Safety and Health Act provides in part as follows:
"Excluding equipment that is operated by remote
control, all self-propelled track type or wheeled-and I'm omitting some words--"front-end loaders"-and I'm omitting additional words--"as used in metal
and nonmetal mining operations with or without
attachments shall be used in such mining only when
equipped with, 1) roll over protective structures
(ROPS) in accordance with the requirements of paragraph (b) through (g) of this standard as applicable." Subsection C of this standard provides as
follows: "All self-propelled equipment described in
paragraph (a) of this standard manufactured prior to
the effective date of this standard and after June 30,
1969, shall be equipped with ROPS meeting the requirements of paragraphs (d) through (g) of this standard
as appropriate." Paragraph (d) of the standard
provides a description of the equipment meeting the
requirements of the standard, describing it in
accordance with certain recommended practices of the
Society of Automotive Engineers. Subsection (e)
provides that all self-propelled equipment shall be
deemed in compliance with the standard if the ROPS
meet the standards of the State of California, the
U.S. Army Corps of Engineers or the Bureau of Reclamation or the MSHA Coal Mine Regulations or the Occupational Safety and Health Administration Regulations.

1165

Subsection (f) states that any alterations or repairs
of the ROPS shall only be done under the instructions
of the ROPS manufacturer or under the instructions of
a registered professional engineer. Subsection (g)
provides that the ROPS shall have certain information
permanently affixed to the structure.
Conclusion of law number one, the respondent,
Hastie Mining Company, is and at all times pertinent
to this case was subject to the Federal Mine Safety
Health Act of 1977; number two, as an Administrative
Law Judge with the Federal Mine Safety and Health
Review Commission, I have jurisdiction over the parties and subject matter of this proceeding; number
three, on March 22, 1979, respondent was in violation
of the mandatory safety standard contained in 30 CFR
56.9-88 because its 950 Caterpillar front-end loader,
serial number 81J7909 was not equipped with roll protection; number four, the violation found to have
occurred in Conclusion of Law number three was a
serious violation because it could result in serious
injury to a miner. This conclusion is reached
despite the fact that respondent has so far in its
operation had no lost time injuries. Number five,
respondent was aware that its front-end loader was
required to have roll over protection and was aware
that it was in violation of the safety standard, but
declined to provide it because of the difficulty that
would be created in the operation described .as clearing underground waterways; number six, respondent
failed to comply with the terms of the citation and
therefore an order of withdrawal was issued. This
indicates a failure to recognize the serious nature
of a Federal Mine Inspector's duties in enforcing
the provisions of the Mine Safety Act and its regulations. I previously found that the violation here
was serious. I found that the respondent was aware
of the violation before it was cited. I must find
and state for the record that, by far, the most
serious part of this case, so far a$ I'm concerned,
is the failure, one, to abate the violation after
the citation was issued; more importantly, the
failure to comply with the order of withdrawal.
This is a very serious violation of the letter and
spirit of the Federal Mine Safety and Health Act of
1977. I am sympathetic with the plight of the operator in this case. It obviously would be a costly
thing for it to comply with the standard, but neither
the Federal Mine Inspectors or the Secretary of Labor

1166

nor the Administrative Law Judge or the Review Commission has.any right to determine that a legal regulation issued pursuant to the Federal Law can be ignored
or excused or thwarted because of cost to a mine operation. I would, although it's not a matter within my
jurisdiction, remind the respondent, operator in this
case, that failure to comply with validly issued
orders of a Federal Inspector under this Act can
result in much more serious consequences than a civil
penalty and would urge that the operator consider
seriously its obligations under this law. Primarily,
because of my· finding concerning the seriousness of
the respondent's failure to comply with the order, I
am assessing a civil penalty in this case in excess of
that recommended by the Assessment Office and recommended by the Solicitor's counsel. And I will order,
as a result of the violation which·I found and considering the criteria set out in section llO(i) of the
Act by which I am bound, I am assessing a penalty of
$500.00 in this case. I explained earlier that
following this hearing a written order will be issued.
It will order the respondent, Hastie Mining Company,
to pay within thirty days of the issuance of that
decision $500.00 as a civil penalty for the violation
which I have found occurred in this case. I explained
also the right of the party to petition the Federal
Mine Safety and Health Review Commission in Washington
for a review of my decision. And that will conclude
the record in this case. Thank you very much.
ORDER
The foregoing bench decision is hereby AFFIRMED.
Respondent Hastie Mining Company, is ORDERED to pay $500 as a civil
penalty for the violation found herein within 30 days of the date
of this written decision.

"'/cY1.At-G-S
._,,,/

fo,t)(f_r/_c-~

James A. Broderick
Chief Administrative Law Judge

. ll67

Distribution:

By certified mail.

Mr. Donald Hastie, Partner, Hastie Mining Company, Robin, Donald,.and
Robert, Cave-in-Rock, IL 62919
Michele Fox, Attorney, Office of the Solicitor, U.S. Department of Labor,
230 South Dearborn Street, Chicago, IL 60604
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1168

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

22041

2 9 MAY 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. SE 79-88-M
Assessment Control
No. 31-00435-05003

v.

B. V. HEDRICK GRAVEL AND

B. V. Hedrick Pit and Plant

SAND COMPANY,

Respondent
DECISION
Appearances:

William F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Thomas C. Newman, Corporate Safety Director,
Swannanoa, North Carolina, for Respondent.

Before

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 27, 1980, a hearing in
the above-entitled proceeding was held on April 8, 1980, in Asheville, North
Carolina, under section 105{d) of the Federal Mine Safety and Health Act
of 1977.
Upon completion of introduction of evidence by the parties, I rendered
the bench decision which is reproduced below (Tr. 81-86):
This proceeding involves a Petition for Assessment
of Civil Penalty filed in Docket No. SE 79-88-M on
September 4, 1979, by the Mine Safety and Health Administration, seeking to have a civil penalty assessed for
an alleged violation of 30 CFR 56.12-34 by B. ·v. Hedrick
Gravel and Sand Company.
This proceeding raises the issues that are raised in
all civil penalty cases, namely, whether a violation occurred, and, if so, what penalty should be assessed, based
on the six criteria set forth in section llO(i) of the
Act.
I think that I should make some findings of fact upon ·
which my conclusions will be based.
(1) On May 22, 1979, Inspector John Kerr made an
examination of the facilities of the respondent and at
that time he wrote Citation No. 105415 citing respondent
for a violation of section 56.12-34, alleging that "low

1169

MSHA v. B. V. Hedrick, Docket No. SE 79-88-M

(Contd.)

hanging lights in the shop, refreshment stand at the
laboratory were not guarded."
(2) The citation was written at 10:00 a.m. and at
4:30 p.m., Inspector Kerr wrote an action to terminate,
stating that the low hanging lights were provided with
guards.
(3) Inspector Kerr was accompanied on his inspection
by Mr. David West, who is the mine superintendent at the
plant and also by an inspector trainee, whose name is
William J. Lowe. Inspector Kerr testified that he explained to Mr. West the location of the incandescent
lights that were involved in his citation.
(4) Inspector Kerr drew a diagram of the area
involved in his citation, which was received in evidence as Exhibit 3. Inspector Kerr explained that on the
left side of that diagram there is a square which shows
a shop area and'that three of the light bulbs are in an
office inside of that shop and the other light bulb was
at a refreshment stand, which is shown also on the left
side of Exhibit 3. Inspector Kerr stated in his citation
and explained in reference to Exhibit 3 that the refreshment stand about which he was talking was situated near
a laboratory.
(5) Mr. Lowe also testified in this proceeding
and confirmed the testimony of Inspector Kerr by stating
that he was with Inspector Kerr and that Inspector Kerr
had correctly shown in Exhibit 3 the location of the places
where they had found light bulbs which were approximately
six feet four inches off the floor and which constituted
a possible burn or shock hazard to tall people who might
run into them or to people who might carry something on
their shoulder and hit such a light bulb.
(6) Inspector Kerr stated that the light bulbs were
in areas where the plant superintendent and other supervisors would have had reason to walk and they shoul.d have
been aware of the fact that there were light bulbs sufficiently low to constitute a hazard without having guards
on them.
Those are the primary findings of fact that I wish to
make, but we still have to have a finding of whether a
violation occurred. In that connection, respondent's witness in this proceeding was Mr. Newman, who is respondent's
safety director, stated that he had been unable to determine
after discussing Citation No. 105415 with Mr. West, just
exactly where these light bulbs were located. And it was

1170

MSHA v. B. V. Hedrick, Docket No.

SE 79-88-M (Contd.)

his position that after he had walked around the area and
the shops and in the refreshment stand that none of the light
bulbs would have been close enough to the floor that he would
have hit them if he had walked under them while wearing a
safety helmet and that he also is 6 feet 1 inch in height.
I am supposed to base my findings of fact upon the preponderance of the evidence and I find that the testimony
of an inspector and trainee who were present at the time
Citation No. 105415 was written should be given greater
weight than the testimony of Mr. Newman in this instance,
because Mr. Newman was working from an adverse circumstance,
in that he was not present on May 22, when the citation was
written, and he necessarily was working and making an investigation on the basis of the abatement of the citation which had
been written on a previous day when he was not present.
Therefore, I find that there was a violation of
section 56.12-34, which provides that portable extension lights
and other lights that by their location present a shock or
burn hazard shall be guarded.
Having found a violation it is necessary for me to assess
a penalty based on the six criteria. We have had some stipulations which first of all indicate and agree that· the respondent
is subject to the jurisdiction of the Commission and to the
Act and Regulations promulgated thereunder. It has been
stipulated that the payment of a penalty would not cause the
company to discontinue in business. It has been stipulated
that the company is a moderate-sized company, and it was stated
that the company produces approximately 1 million tons of rock
and sand a year, but that production figure, while apparently
quite high at face value, reflects a digging operation as
opposed to a crushing operation, and, therefore, the quantity
of the production is not as indicative of a large company as
would be the case if we had a crushing operation in connection
with the production operation.
It was also shown that since these guards were placed on
the lights within the period provided for by the inspector,
that there was a good faith effort to achieve rapid compliance.
The remaining two criteria relate to the gravity of the
violation and to negligence. Those are the ones that we
primarily use for determining just how large a penalty should
be assessed. In view of the fact that these lights were six
feet four inches off the floor at a minimum, only tall people
would have been likely to run into them and even then that is
somewhat debatable, depending on the conflicting testimony of
the witnesses on height, but I find that the light bulbs would
not constitute a really serious hazard that would be likely
to kill anyone who might happen to bump into one of them.

1171

MSHA v. B. V. Hedrick, Docket No. SE 79-88-M
As to negligence, apparently the inspector considered
a light bulb at seven feet off the floor as not a hazard
and does not have be guarded, so, we have a situation where
there might have been at least a doubt in respondent's mind
as to whether these light bulbs were low enough to require
guarding, and, consequently, I find that there was a low
degree of negligence associated with the violation.
In view of the fact that we have a moderate-sized
operator, have a good-faith abatement, and have a moderately
serious violation with a low degree of negligence, I think
that a penalty of $15.00 is reasonable under the circumstances.
WHEREFORE, it is ordered:
Within 30 days after the date of this decision, respondent
shall pay a penalty of $15.00 for the violation of 30 CFR 56.12-34
alleged in Citation No. 105415 dated May 22, 1979.

~c.o!~

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

Distribution:
William F. Taylor, Attorney, Office of the Solicitor, U.S.
Department of Labor, Room 280, U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
B. V. Hedrick Gravel and Sand Company, Attention: Thomas C.
Newman, Safety Director, P.O. Box 425, Swannanoa, NC 28778
(Certified Mail)

1172

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

{703) 7 5~·-6225

s o MAY 1900
Contest of Order

CONSOLIDATION COAL COMPANY,
Contestant
v.

Docket No. WEVA 80-13-R
Order No. 808268
September 5, 1979

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

Blacksville No. 1 Mine

DECISION
Appearances:

Samuel Skeen, Esq., Pittsburgh, Pennsylvania, for Contestant;
Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for Respondent.

Before:

Judge Edwin S. Bernstein
STATEMENT OF THE CASE

This is a proceeding for review of an order issued under Section 104(b)
of the Federal Mine Safety and Health Act of 1977 (the Act) on September 5,
1979, for an alleged failure to abate a citation.
The case was heard on the merits in Pittsburgh, Pennsylvania, on
February 22 and 27, 1980.

Following the hearing, the parties submitted

briefs.
APPLICABLE STATUTE
Section 104 of the Act reads in applicable part:
(a) If, upon inspection or investigation, the Secretary

* * * believes that an operator * * * has violated this Act,

1173

or any mandatory health or safety standard, rule, order, or
regulation * * * he shall * * * issue a citation to the
operator. * * *
[T]he citation shall fix a reasonable time
for the abatement of the violation. * * *
(b) If, upon any follow-up inspection * * * an authorized representative of the Secretary finds (1) that a violation described in a citation * * * has not been totally
abated within the period of time as original,ly fixed
therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further
extended, he shall * * * promptly issue an order requiring
the operator * * * to immediately cause all persons * * *
to be withdrawn from, and to be prohibited from entering,
such area** *·
FINDINGS OF FACT
The parties stipulated and I find:
1.

Consolidation Coal Company (Consol) is the owner and operator of the

Blacksville No. 1 Mine.
2.

Consol and the Blacksville No. 1 Mine are subject to the provisions

of the Federal Mine Safety and Health Act of 1977 and I have jurisdiction
over this proceeding.
3.

Mr. Ellis Mitchell, the inspector who issued the subject citation

and order, was a duly authorized representative of the Secretary of Labor.
4.

Copies of the citation and order are authentic copies and were

properly served.
On August 30, 1979, Ellis Mitchell, an MSHA inspector, accompanied by
Jim Bowman, a safety representative of the United Mine Workers of America,
and Robert Gross, a Consol escort, inspected the 2 West 036 section of the

1174

Blacksville No. 1 Mine.

Mr. Mitchell found that the roof in an area approxi-

mately 50 feet long was unsupported.

The area consisted of a segment of an

entry, or passageway, l__/ approximately 46 by 14-1/2 feet, which had been
mined by a borer miner, and an adjacent area in an intersection which was
approximately five feet long and of irregular width.

The intersection area

had been mined first by a borer miner and then rounded off on its corners
by a ripper miner (sometimes known as a Heliminer).

The intersection itself

was a four-way intersection, approximately 6-1/2 to seven feet in height, and
was heavily traveled.

At one entry to the intersection was a power center

and at another was an intake escapeway.

The entry in question was little

traveled and was about four to 4~1/2 feet in height.

Both the intersection

and the entry had been developed in 1970, although the area was still in
an "advance" stage of mining.

On August 30, 1979, there were no posts,

roof bolts or other roof supports in the 50-foot area described above.

All

witnesses agreed that on that date there was some cracking in the roof, some
falling coal, and lengths of coiled cables in the entry.
Mr. Mitchell issued Citation No. 808265 on August 30, 1979, for an
alleged violation of 30 C.F.R. § 75.200.

The citation read:

In the 2 West, 036 section currently in the construction stages and idle this shift the roof in the old borer
entry was not supported for a distance of about 50 feet,
coal roof was cracked and spalled entire distance, beginning just to the right of the power center. The trailing
cable to the auxiliary fan was placed in this unsupported
area by miners who traveled under this roof.

lJ

Mr. Mitchell testified that this area could be described either as an
entry or a crosscut depending upon the direction in which mining was proceeding. I will refer to it as an entry for the sake of clarity.

1175

Mr. Mitchell directed that the condition be abated by 1300 hours that
day.

He served the citation at 1019 hours.

Mr. Mitchell testified that he

found the roof to be sagged down, deteriorated with fallen coal and cracked.
He stated that he did not sound the roof because he felt that a visual
inspection was sufficient.
had fallen.

He also noted that all of the roof's rock dust

He testified that the existence of a cable in the entry indi-

cated that men had been in the area recently.

As was his practice, before

fixing an abatement time, he discussed the matter with officials of the
operator.

Although the manner of abatement was not discussed, Mitchell

testified that he assumed that the operator would abate either by installing
posts or installing a barricade at each end of the area, and that he would
have accepted either method.

Mr. Bowman confirmed Mr. Mitchell's testimony about the August 30
inspection.

He indicated that neither he nor Mr. Mitchell entered the area

in question, but that they inspected from each end by use of the spot lights
on their hats.

He confirmed that the floor was hooved 2/ and that the entry

was not a heavily traveled route.

Mr. Gross disagreed that the roof was hazardous when he observed it with
Mr. Mitchell on August 30, 1979.

He acknowledged that the roof had deterio-

rated a little, that there was spalling, and that there were some cracks,
but he concluded that this was normal for a ten-year-old entry, and that the
2/ "Hooving" is a condition in which the floor buckles or becomes raised
Tn the center. This results from pressure transmitted from a roof to
walls and through the floor. Mr. Bowman stated that this is normally a
sign of good roof, since it shows that the roof pressure is being dissipated. However, he added that this is not always the case.

1176

roof was safe.

He stated that most of the cracks were small pressure cracks

and that only large cracks are dangerous.

He testified that a roof crack

one-quarter inch thick and three or four feet long would not alarm him.
He stated that he did not discuss the method of abatement with Mr. Mitchell,
although he told Mr. Mitchell that bolts could not be installed because the
height was too low in the entry to accommodate a roof-bolting machine.
Mr. Gross expected that the citation would be abated by barricading
both ends of the area and he was surprised to find a barricade at one end
only when he returned on August 31, 1979.
man to barricade the other end also.

He then told the section fore-

This was not done.

Mr. Mitchell did not return to the area until 1725 hours on September 5,
1979.

At that time, he was accompanied by Richard Green, a union representa-

tive, and James Turner, a Consol inspector-escort.

They found that at the

intersection side of the entry, two posts had been installed between the
floor and the roof and a board had been wired between them with a warning
written in yellow chalk.

The warning sign faced the intersection.

no such barrier or sign at the other end of the area.
had been installed.

There was

No other roof supports

The cable had been removed from the area, however, and

near the other intersection at the back entrance of the area, the men found
recently deposited human feces.
Mr. Mitchell was outraged that after six days only one barricade at one
end had been installed.

He testified that the two posts and sign would not

prevent entrance into the area from that side.

He believed that the human

feces at the back entrance indicated that miners had been in the area

1177

recently.

Although initially he would have accepted the installation of

a barricade at each end as abatement, upon reinspection on September 5, he
refused to allow this method of abatement.
Mr. Mitchell issued a Section 104(b) order which read:
In the 2 West, 036 section only two posts had been set
near the power· center in the intersection with a danger board
hung between them. The other end of the unsupported loose
roof was not dangered off or barricaded to prevent travel in
this direction. Evidence of travel in the entry just inby
this area was observed and miners could travel through under
unsupported roof.
After Consol installed 19 additional posts in the area, Mr. Mitchell
terminated the withdrawal order at 2132 hours on September 5, 1979.
Mr. Green confirmed Mr. Mitchell's testimony that on September 5, 1979,
when they visited the area together, they found loose coal and cracks on the
roof in the area, human feces in the area and a barricade at only one end.
Mr. Turner testified that Mr. Mitchell had become angry about another
violation en route to the area on September 5, 1979.

He testified that when

they arrived at the area, Mr. Mitchell stated "[t]hey still haven't set any
God damn posts."

Mr. Mitchell denied making that statement.

According to

Mr. Turner, Mr. Mitchell sounded the roof and said "[t]his is a bad top."
Mr. Turner stated that six months earlier, when the entry had been an air
passageway, he had walked the area weekly and had no concern about the roof.
He stated that had Mr. Mitchell allowed the installation of a second barricade, this could have been done by three or four men in 45 minutes.
installation of the 19 posts took five men about four hours.

1178

The

Charles Bane, Consol's assistant superintendent, also visited the area
on September 5, 1979, following Mr. Mitchell's inspection at 1725 hours.
He confirmed that Mitchell was upset and refused to allow the construction
of a second barricade.

Bane acknowledged that there was some deterioration

and spalling in connection with the roof in the area, but he denied that the
roof was unsafe.
At the hearing, Consol moved to dismiss the citation and also moved
to dismiss the withdrawal order.
I.

I reserved decisions on both motions.

Was the Citation Proper?
I find that Citation No. 808265 was properly issued because on August 30,

1979, Consol violated its roof-control plan in the 2 West 036 section· as
alleged.
Paragraph 2(c) at page 16 of that plan (Revised Plan No. 3, dated
February 5, 1969), reads:

"Where slips or clay veins are encountered, where

the shale roof is exposed, or whenever hazardous roof is encountered during
advance and persons must pass thereunder, the areas shall be bolted immediately or otherwise made safe."
It is undisputed that the area was in an advance stage of mining.

It

is also undisputed that on August 30, 1979, when Mr. Mitchell made his
inspection, lengths of coiled cables were found in the entry.

This indicates

that persons had been in the entry recently and supports the conclusion that,
although this entry was not heavily traveled, persons were required to pass
under the unsupported roof.

1179

.;.··

I also find that a hazardous roof existed in the 2 West 036 section dur-

Mr. Mitchell testified that

ing Mr. Mitchell's August 30, 1979, inspection.

he found cracking and spalling in the roof; that all of the roof's rock dust
had fallen in the area; and that, although the roof was hooved, the roof
generally was sagged down and in a deteriorated condition.
stated that the roof was not good.

Mr. Bowman also

He testified:

The top had some head coal where it was flaked off, and
there also were cracks within this head coal that was still
remaining there. It was just a bad situation there as far as
my experience in the mine. If people are going to be there,
it should have had some additional support.
Mr. Gross disagreed that the roof was in poor condition, although he
admitted that the roof had deteriorated.
I find the testimony of Mr. Mitchell and Mr. Bowman to be more persuasive, and I conclude that on August 30, 1979, when Mr. Mitchell made his
inspection, the roof in the 2 West 036 section was in a hazardous and
unsafe condition.
At that time, Consol was also in violation of the requirements of page 5
of its roof-control plan.

There, the plan stated that before an intersection

is started a row of roof bolts must be installed (bolts "A" on a diagram) and
after the crosscut is driven, an additional line of bolts perpendicular to
the "A" row of bolts (bolts "B" on the diagram) "should be installed as soon
as is practicable after machine has created intersection."
in paragraph 2(a) on page 16 of the plan adds:

A textual comment

"All four-way intersections

shall be bolted as soon as is practicable; bolts 'A' as shown on the sketches

1180

pages 5 and 6, should be installed·prior to the creation of the intersection
and the remaining 'B' bolts installed as soon as is practicable thereafter."
According to the diagram on page 5, at least one bolt of each line must
extend in each direction past the intersection and into the adjacent entries
or crosscuts.

In failing to place bolts at 4.5-foot intervals past the

intersection and into the entry·, Consol again violated the requirements of
its roof-control plan.
I do not agree with Consol that because the citation described the area
as "the old borer entry," it precludes a finding that a violation also existed
in the intersection.

In my view, the term "entry" is broad enough to cover

a distance approximately four feet into the intersection.

Mr. Mitchell

testified that the word "entry" can refer to an area extending into the
intersection, and I accept that less restrictive meaning of the term.
Furthermore, I believe that Consol had sufficient notice of the area referred
to in the citation. 11
II.

Was the Withdrawal Order Proper?
Section 104(b) of the Act provides that if, upon a follow-up inspection,

the Secretary's representative finds (1) that a violation described in a
citation has not been totally abated within the period of time originally
~

As the Commission stated in Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Jim Walter Resources, Inc., and Cowin and Company,
Docket Nos. BARB 77-266-P and BARB 77X465-P, 1 FMSHRC Dees. No. 8 at 1827
(1979), a notice which is insufficiently specific may not be invalid if it
allows the operator "to identify and thereby abate the allegedly violative
condition."

1181

fixed or as subsequently extended, and (2) that the period of time for abatement should not be further extended, he shall promptly issue a with~rawal
order with respect to the area covered by the citation.

In the light of

this statutory mandate, I find that the withdrawal order issued by Inspector
Mitchell on September 5, 1979, was proper.
The time specified for abatement of the citation was two hours and
41 minutes.

In fact, the Secretary's inspector did not return to reinspect

until six days later, on September 5, 1979.

At that time, the violation was

still not abated, and no extension of time had been requested.

Abatement

would consist of bringing conditions in the affected area into compliance
with Consol's roof-control plan.
tions.

As indicated above, there were two viola-

There was a violation of Section 2(c) at page 16 of the plan in the

entry, and there was a violation of page 5 of the plan (elaborated upon in
Section 2(a) at page 16) in the intersection.

By installing a barricade

between the entry and the intersection, Consol partially complied with
page 5 of the plan in that it added some support to the roof,.!.·~·· the
two weight-bearing posts on which the barricade sign was hung.

However,

in failing to install additional roof bolts as required and described on
page 5, it failed to comply with the plan.
With respect to the violation at Section 2(c) on page 16 of the plan,
there also was partial but insufficient compliance.

That portion of the

plan required the areas described to "be bolted immediately or otherwise
made safe."

Although no bolting was done, a barricade was erected at one

side of the entry.

.

Inspector Mitchell stated that he would have accepted

1182

barricades at both ends of the entry as abatement of the citation.

This

barricading would have prevented people from entering the unsupported area.
As ind1cated by the human feces near the unbarricaded end of the entry,
people traveled in that area.

MSHA contended that in barricading only one

end, Consol failed to abate the citation. I agree.
Finally, I find that the period of abatement should not have been
extended.

The testimony indicated that two barricades could have been

erected in less than two hours.

The actual abatement, which consisted of

installing 19 roof bolts, was performed by five men in about four hours.
Consol had been afforded six days to abate the violation.

Clearly, that

time was sufficient and no reason was given for extending it.

In fact,

such an extension would hardly be justifiable in view of the uncorrected
dangerous condition.
III.

Was it Unreasonable for Inspector Mitchell to Refuse to Allow Abatement by Barricading on September 5, 1979?
Although it does not affect the validity of the withdrawal order, I

believe that Inspector Mitchell acted unreasonably in not allowing Consol
to abate the citation by barricading the entry on September 5, 1979.

The

inspector stated that he would have accepted such abatement prior to that
time, and I do not think he should have restricted Consol's options on that
date.

These actions by the inspector were a manifestation of his anger at

Consol's delay in correcting the roof condition.

His actions took on a

punitive aspect, as he was apparently attempting to punish Consol by making
abatement more difficult.

I can understand his exasperation, but I also

believe he misconstrued the nature of a withdrawal order.

1183

Orders issued under Section 104(b) are intended to motivate an operator
to abate a violation.

By refusing to allow an operator access to that

portion of his mine which is affected by a citation, the operator is given
an added incentive to correct the condition.
punish the operator.

The order is not intended to

The Act provides for civil penalties which may be

assessed against operators who refuse to abate violations, but this is done
in a separate proceeding.

As indicated by Section llO(i) of the Act,

one factor which may be taken into account in assessing such a penalty is
the good faith exhibited by the operator in abating the violation.

Inspector

Mitchell's decision to insist upon a particular method of abatement at such
a late date constituted a misuse of his authority to issue withdrawal orders.
Admittedly, Consol could have proceeded to erect the second barrier and
taken its chances on the inspector's resolve.

However, as a practical

matter, an operator runs the risk of having its operation closed down by
attempting such challenges at the mine, rather than later in a proceeding
provided for by the Act.
In conclusion, while I do not condone the inspector's misuse of his
authority, I find that upon consideration of the facts of record and the
criteria set forth in the Act, the withdrawal order was properly issued and
I affirm both the citation and the withdrawal order.

~--~·- d .&•..;Z..~ .

Edwin S. Bernstein
Administrative Law Judge

1184

Distribution:
Samuel Skeen, Attorney, Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Eddie Jenkins, Attorney, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

1185

•