JUNE 1979
The following cases were Directed for Review during the month of June.
Southern Ohio Coal Co., v. Secretary of Labor, MSHA, VINC 79-98;
(Interlocutory Review granted June 19, 1979)
Secretary of Labor, MSHA, v. Stash Brothers, Inc., PITT 79-44-P;
(granted June 22, 1979)
Secretary of Labor, MSHA, v. Cut Slate, Inc., WILK 79-13-P; (granted
June 22, 1979)

FED~R/\L MINI: SAF:::7Y AND

HEALTH REVIEW COMMISSION

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

20006.

June 7, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSRA)
Docket No. PIKE 77-89-P
IBMA 77-67

v.
B B & W COAL COMPANY, INC.
DECISION

This is an appeal of a decision holding the operator, B B & W Coal
Company, Inc., in default in a penalty proceeding under the Federal Coal
Mine Health and Safety Act of 1969.
On July 29, 1977, the Mining Enforcement and Safety Administration
(MESA) filed a petition for assessment of civil penalty with the Department of Interior's Office of Hearings and Appeals (ORA), seeking a total
of $905 for 20 alleged violations. Billy McPeek, president of B B & W
Coal Co., Inc., filed a prose answer that raised certain defenses and
moved that the petition be dismissed.
On October 20, 1977, Administrative Law Judge Kennedy issued a
notice scheduling a hearing for November 29, 1977, along with a pretrial
order requiring MESA and the operator to make various prehearing submissions. Specifically, the operator was required to submit by November
7th "a plain and concise statement .•• of the reasons why each of the
violations is being contested." MESA was ordered to file by November
7th a proposed stipulation regarding several factors including the
statutory criteria for assessment of penalties. The pretrial order
further ordered the operator to file a statement by November 21st regarding the extent of his agreement and disagreement with MESA's proposed
stipulation, a statement whether the operator claims the amount of the
penalties recommended will impair its ability to continue in business,
and a_ list of the names of witnesses it intended to use and a brief
summary of the subject matter of their testimony.
On November 13th.Mr. McPeek mailed to the Office of Hearings and
Appeals copies of the following two documents: (1) a letter to the
Solicitor, dated November 7, 1977, which includes a summary of the
reasons why he would like a hearing to contest the violations in question;
and (2) a letter. to the Solicitor dated November 12, 1977, which stated
that he was unable to agree with any points in the Solicitor's proposed
stipulation. ·The November 12th letter further stated that the operator
intended to use the inspectors who cited the alleged violations as
witnesses at the hearing. These documents were received by ORA on

79-6-4
467

November 16th. Judge Kennedy never issued a written ruling on the show
cause order. However, on November 18th Judge Kennedy issued an amended
notice of hearing changing the site for the November 29th hearing from
Whitesburg, Kentucky to Abingdon, Virginia.
On November 22, 1977, for reasons unexplained in the record, Judge
Kennedy cancelled the scheduled hearing and recused himself on grounds
that he did "not believe he [could] hear and decide this matter with
complete impartiality toward the.respondent."
On November 28th the case was assigned to Administrative Law Judge
Moore. On the following day Judge Moore entered a summary decision, in
which he made the following finding: "There was no response to Judge
KennedyJs order to show cause and in accordance with the procedures set
forth in 43 CFR 4.544, Respondent is declared in default ••• " ];/
On appeal, the operator argues that he did respond to and satisfy
Judge Kennedy's order to show cause, and he notes that the hearing was
scheduled to take place when Judge Kennedy recused himself.
We agree that, in the circumstances here, the operator did adequately
respond to and satisfy Judge Kennedy's show cause order. Judge Kennedy
apparently considered the show cause ·::>rder satisfied since he transferred
the hearing site to Abingdon, Virginia after receiving Mr. McPeek's
response. Confusion may have occurred due to the fact that the response
to Judge Kennedy's order to show cause was in the form of copies of
letters to the Solicitor, but mailed to OHA, and because Judge Kennedy
did not issue a written ruling on the show cause order prior to recusing
himself.
The decision holding the operator in default is reversed and the
case is remanded for a hearing. 2/

...:.04-r?"'-'2- ('(_ C(/7~~

Jeroni'e R. Waldie, Chairman

1_/

43 CFR 4.544(b) provided: "(b) Fa·1 re to respond to prehearing order.
Where the respondent fails to file a re onse to a prehearing order the
administrative law judge may issue an order to show cause why the operator
should not be considered in default and the case disposed of in accordance
with paragraph (a) of this section."
J:./ Remand for hearing is the appropriate remedy, not, as requested by
the operator, a dismissal of the penalty proceedings.
468

fEDERAL MINE SAJ!ETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 7, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

BARB 78-82-P
BARB 78-83-P
BARB 78-84-P
BARB 78-85-P
BARB 78-98-P
BARB 78-99-P

SHAMROCK COAL COMPANY
DECISION
This penalty proceeding arises under the Federal Mine Safety and
Health Act of.1977, 30 U.S.C. §801 et~· (1978) ["the Act"]~ On
October 30, 1978, Administrative Law Judge Steffey found that Shamrock
Coal Company had violated 31 mandatory safety and health standards and
assessed civil penalties totaling $16,673. Shamrock petitioned for
discretionary review of several of the findings of violation and penalty
assessments. On December 11, 1978, the Commission granted the petition
in part. The issues that we directed for review were: (1) whether
sub~tantial evidence supports two of the findings of violation; and (2)
whether substantial evidence supports the judge's penalty assessments
with respect to twenty-one of the violations.
After a thorough review of the record below, the decision of the
judge and the arguments of the parties, we conclude that the judge's
findings of violation in issue are supported in the record by substantial
evidence. Accordingly, we affirm the findings that Shamrock violated
the safety standards cited in notices of violation numbered 9 LLL (781) and 3 RM (7-3).
Shamrock presents no persuasive reasons why we should overturn the
penalty assessments of the judge. Shamrock's argument that the judge
cannot make a de ~ assessment of penalties, but must follow the
criteria for assessment of penalties contained in the. 30 CFR Part 100
procedures of the Secretafy of Labor's Office of Assessments, is misdirected.
Under section llO(i) of the Act, de nova assessment of penalties is
within the authority of the Commiss~nd its judges. 1/ Moreover, at
the hearing counsel for Shamrock insisted that the judge refrain from
consideration of the Secretary's Part 100 proposals. We conclude that
the penalty assessments on review are based on the evidence in the
record and reflect correct consideration of the statutory criteria set
forth in section 110 of the Act. The penalties are appropriate and will
not be disturbed.

1./

Section llO(i) provides:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil penalties,
the Commission shall consider the operator's history of
469

79-6-5

Accordingly, the judge's decision is affirmed.

1./

cont'd
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. In proposing civil penalties under this Act,
the S~cretary may rely upon a summary review of' the information
available to him and shall not be required to make findings
of ·fact concerning the above factors.

470

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

20006

June 15, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADHINISTRATION (MSHA),
On behalf

of John Koerner,
Applicant

'

v.

Docket No. DENV 78-564

ARCH MINERAL COAL COMPA..."'N,
Respondent.
DECISION
This is a discrimination proceeding under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.A. §815(c)(l978).
On September 12, 1978, on application of the Secretary of Labor, Acting
Chief Judge Broderick issued an order of temporary reinstatement restoring John Koerner, the alleged discriminatee, to his job with Arch Mineral
Coal Company. Thereafter the Secretary moved to vacate the temporary
reinstatement order on the ground ~hat the parties had negotiated a
settlement. Administrative Law Judge Littlefield granted the motion on
February 7, 1979. The record did not indicate whether Mr. Koerner
agreed to the motion to vacate the reinstatement order.
The Commission directed review on March 9, 1979, to determine
whether there were sufficient grounds to grant the motion. The case was
remanded for the limited purpose of supplementing the record. The
Secretary's submissions on remand indicate that Mr. Koerner was a party
to the settlement and authorized the Secretary to move for vacation of
the temporary reinstatement order.
The primary concern of the Commission in directing review was to
assure that the alleged discriminatee voluntarily agreed to vacating the
reinstatement order. It is the miner's rights that are being settled,
and we must, therefore, insure that the settlement and vacation of the
reinstatement order were agreed to by the miner, not just the Secretary
and the operator.

79-6-16
471

The record now shows that Mr. Koerner was a voluntary party to
the agreement. Our concern has been satisfied. Accordingly, the
February 7, 1979 order of Judge Littlefield is affirmed.

Jerome R. Waldie, Chaipnan

Nease, Commissioner

472

ADMINISTRATIVE LAW JUDGE DECISIONS
JUNE 1, 1979 - JUNE 29, 1979

FEDERAL MINE SAFETY AND HEALTH REVDEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VJRG INIA 22~03

JUN 1 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding

P~titioner

Docket No. VINC 79-52-P
A.C. No. 11-01008-03004

v.
PEABODY COAL COMPANY,
Respondent
and
PEABODY COAL COMPANY,
Applicant

Applications for Review
Docket No. VINC 78-389
Citation No. 269304; May 16, 1978

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

Docket No. VINC 78-390
Citation No. 269305; May 16, 1978
Docket No. VINC 78-391
Citation No. 269306; May 16, 1978
Baldwin No. 1 Mine

DECISION
Appearances:

Leo J. McGinn, Esq., MSHA Trials Branch, Office of the
Solicitor, U.S. Department of Labor, for MSHA;
Thomas F. Linn, Esq., Peabody Coal Company, St. Louis,
Missouri, for Respondent/Applicant.

Before:

Administrative Law Judge Michels

The above-c~ptioned cases consist of three applications for
review filed June 2, 1978, by the Peabody Coal Company (Peabody) pursuant to section 105(a) of the Federal Mine Safety and Health Act of
1977 (the Act), 30 U.S.C. § 815(a), and a civil penalty proceeding
concerning the same three citations filed November 8, 1978, pursuant
to section llO(a) of the Act, 30 U.S.C. § 820(a). These four proceedings were consolidated at the hearing (Tr. 10). They concern the
issuance by Inspector Jack J. Eddy of three citations on May 16, 1978,
charging a violation of 30 CFR 75.1700 for allegedly permitting in

473

three instances an oil well hole to be drilled through the mine
coalbed in active workings and for the maintaining of a barrier of
less than 300 feet in diameter ar~und those wells without the
approval of the Secretary.
In each application for review, Peabody (1) denies that the circumstances justified the issuance of a citation under section 104(a)
of the Act; (2) alleges that the actions of the inspector were arbitrary and capricious, without authority in faet or law, and exceeded
his authority; and (3) asserts that the length of the abatement time
was unreasonable, arbitrary, capricious, and not justified. In its
answer, MSHA (1) admits the issuance of the citations; (2) denies
the allegations otherwise; (3) asserts that the time to abate as
extended was reasonable; and (4) alleges as an affirmative defense
in the review cases that each of the citations has been abated and
terminated and that the Act does not provide for review in these
circumstances.'};./
The petition for assessment of civil penalties was filed
November 8, 197S, charging violations of 30 CFR 75.1700 in the
three cited instances of a drilled oil hole and asking a penalty
of $840 for each, or a total of $2,520. Peabody answered with a
general denial.
A hearing was held in St. Louis, Missouri) on March 7, 1979, at
which both parties appeared through counsel. The parties have filed
posthearing briefs and proposed findings and conclusions. Such of
these as are not adopted herein or specifically rejected are hereby
rejected as immaterial or not supported by the evidence.
Issues and General Conclusions
The general issues are:
A.

Has Peabody violated 30 CFR 75.1700 as charged?

1/ MSHA also moved to dismiss the applications on June 15, 1978,
asserting the same reasons stated in its affirmative defense and
citing various authorities including Judge Richard Steffey's
initial decision in Itmann Coal Company v. Secretary of Labor,
HOPE 78-356 (May 26, 1978). The motion was denied by my order of
August 22, 1978, but the hearing was delayed p~nding the filing of
the prospective penalty case. The penalty case seeking assessment
of ~ivil penalties for the three citations upon which review was
s~ught was filed November 8, 1978, and is included herein as Docket
No. VINC 79-52-P.
The Commission's recent decision in Energy Fuels Corporation,
DENV 78-410 (May 1, 1979), addresses this issue. Under that holding,
I believe it is clear that the operator, in the circumstances shown,
is entitled to a review of the citations.

474

B.

Were the citations issued with reasonable promptness?

C. If Peabody violated the mandatory standard, what should be
the penalty assessed based on the criteria set forth in section
llO(i) of the Act? :!:./
More specific issues are (a) whether 30 CFR 75.1700 governs the
drilling of an oil or gas well through a section of a mine which has
been worked out, although still an active part of the mine; and (b)
whether MSHA acted arbitrarily and capriciously in requiring the
building of extensive cribbing.
This decision holds that 30 CFR 75.1700 was violated by Peabody
only because of its failure to notify the Secretary of the existence
of the oil or gas wells after they had been located and that the section was not otherwise violated. This decision further holds that
MSHA acted arbitrarily and capriciously in requiring the building of
cribs. A nominal penalty is assessed.
Findings of Fact
·Peabody Coal Company is the operator of the Baldwin No. 1 Mine
which is a slope mine with 11 active sections. The size of the coal
seam at the mine varies from 6-1/2 to 7 feet. Approximately 500 men
are employed and the daily production is around 12,500. tons (Tr. 1718).
Inspector Jack J. Eddy made a visit to the Baldwin No. 1 Mine on
May 12, 1978, because he had been informed by his supervisor that oil
wells were drilled through the active part of the mine. He asked
Mr. Gary Craig, Peabody's assistant safety manager, for the location
of these wells. Both went underground and attempted to determine the
location of the wells from mine managers Jones and Laughland and two
engineers. These persons did not seem to know the locations and
Mr. Randall Dempsey, chief engineer, was called (Tr. 20-22).
Mr. Dempsey was able to locate the wells and he apparently provided
the engineers with a map showing their locations (Tr. 41).
After acquiring transportation, the engineers took the inspector to the well locations. One of the wells was identified as an
oil well on the rib of the coal, but the other locations were not
so identified. In each case, the wells were encased in blocks or
pillars of coal of various sizes and the locations of the wells
2/ The issue of reasonableness of time for abatement was presented
in the applications but was not raised during the hearing or in the
posthearing briefs. Thus, the allegation as.to abatement time is
not considered as an issue.

475

could not be determined visually (Tr. 26-27). The wells were
located generally in the centers of the coal pillars (Tr. 51; R-8,
R-9, R-10). 3/ The distances from the well to the nearest opening
were as follows for the respective wells: Patton No. 1, approximately 25 feet; Stevenson No. 1, approximately 20 feet; and Hoffman
No. 2, approximately 25 feet (Tr. 128). These were "active workings"
even though the mining operation had advanced beyond the wells (Tr.
26-27, 61). 4/ There was no plan for retreat mining in this area
(Tr. 38).
Tfie existence and location of these wells had not been reported
to MSHA by Peabody, but MSHA learned this information through other
sotlrces (Tr. 20). Peabody officials did not believe the regulation,
30 CFR 75.1700, related to these wells which were in a mined-out
area_ (Tr. 104, 122).
The first well is identified as Stevenson No. 1 and it is
located between the No. 6 and the No. 5 Main East entries in the
intake aircourse. This well is 2,093 feet deep and passes the coal
seam at 286 feet based on a surface elevation of 471 feet. The hole
which passes through the coal seam is 7-7/8 inches in diameter.
Stevenson No. 1 is located within a pillar of coal near the end of
a long rectangle which measures 40 by 380 feet. This was the only
barrier around the well. Drilling the well began on February 6,
1978, and was completed on February 12, 1978 (Tr. 29-30; G-12, R-1,
R-9). This well has been plugged (Tr. 47).
The next well upon which a citation was issued is identified as
Patton No. 1. It is 2,141 feet deep and is located between the third
and fourth Main East entries. A 7-7/8-diameter pipe passes through
the coal seam at 342 feet based on a surface elevation of 470 feet.
The coal pillar through which the well is drii"led measures 64 by
54 feet. This well is located approximately in the center of that
pillar. Patton No. 1 was started June 6, 1977, and was completed
June 12, 1977 (Tr. 31-32; R-8, G-14, R-1).
The final of the three wells is identified as Hoffman No. 2, a
dry well which is located between the No. 10 and No. 11 East Main
entries. This well is 2,098 feet deep and it passes the coal seam
at 332 feet based. on a surface elevation of 480 feet. The size of
the well hole through the coal seam is 7-7/8 inches in diameter.
This well is drilled approximately through the center of the coal
3/ Peabody's exhibits are identified with a capital "R" and a number;
MSHA's with a "G" and a number.
4/ Peabody has not disputed in its posthearing brief that the well
bores were in "active workings", that is, a place in a coal mine
where miners are normally required to work or travel. See 30 CFR
75.2(g)(4).

476

pillar which measures 54 by 52 feet. Hoffman No. 2 was started
April 21, 1978, and finished on April 25, 1978 (Tr. 32; R-10, G-13;
R-1) •

The inspector visited the Baldwin No. 1 Mine and determined the
location of the oil wells on May 12, 1978, but he did not issue his
citations until May 16 (Tr. 62). Inspector Eddy considered this to
be an unusual situation and so before issuing citations, he consulted
with the district and subdistrict managers who ultimately made the
determination on the abatement procedures to be_required. This was
done before the citations were issued (Tr. 65). The decision by the
MSHA managers that there was a violation included the procedure which
would be required for abatement. The decision to issue the citations
was not made by the inspector but by others in the district or subdistrict offices (Tr. 65). Inspector Eddy's supervisor, who had not
inspected or seen the wells, told him to issue the citations (Tr. 5556).
On May 17, MSHA made and communicated to Peabody its determination that cribbing would be required for abatement (Tr. 56). The
conditions were thereafter abated by the construction of cribs pursuant to Peabody's plan approved by the MSHA district manager (Tr.
36). These cribs consisted of fire-resistant ties built box-like
with the ties interlaced one on top of the other at the ends leaving
spaces between them. The ties were wedged against the top (Tr. 37).
The cribs or cribbing boxes are themselves separated. The plan drawn
up for the cribbing is R-4 (Tr. 95). This plan provides: for
Stevenson No. 1, 21 cribs and 714 ties surrounding one end of the
coal pillar; Patton No. 1, 38 cribs and 1,292 ties completely surrounding the coal pillar; and Hoffman No. 2, 40 cribs and 1,280 ties
completely surrounding the coal pillar.

The man-hours involved in building the cribs are shown on R-5
as totaling 511 hours. The total·cost for the material, hauling and
man-hours was $21~000 (Tr. 110).
The purpose of the cribs was not to hold up the roof, but to prevent or diminish subsidence which might cause a rupture of the oil
pipe (Tr. 38, 64). A rupture of the piping or casing could turn
loose explosive gases. creating a fire hazard in the view of the
inspector (Tr. 39). Nevertheless, generally cribs used to support
top are put near the center of the entry or crosscut (Tr. 57) •
Furthermore, the subsidence in this mine was normal and not very
substantial (Tr. 109).
Subsidence was described by Mr. Eddy, the inspector, as a
"squeezing, shifting of the earth" (Tr. 39). Witness William Jones,
chief mine manager for Peabody, described subsidence in the following words:

477

I use the word "squeeze." That's where your top comes down
to meet the bottom and that happens because you have,
several things can cause it. You could have an area that is
overworked out, in other words, your extraction is greater
than it should be, your bottoms would be soft and you would
have very good top in the area. And that good top, if you
had pressure and you opened your cavity would be a larger
cavity than what the bottom would support, it pushes the
pillars down into the bottom or the fire clay which closes
up that area. This, I think, is what they're referring to
as the subsidence.
(Tr. 115). The pressure is mainly from the top downward though it
could be riding to the side (Tr. 116). 5/
Inspector Eddy, although he testified the subsidence at the
Baldwin No. 1 Mine could cause a rupture of the oil well piping, had
no special qualifications on the subject of oil well drilling and the
special problems this may create in a mine. The inspector had been
a coal miner for about 30 years prior to joining MSHA and he has been
an inspector for ab.out 9 years. As a coal miner, he had engaged in
all practical coal mining and he also had been a foreman and mine
manager for approximately 25 years (Tr. 16-17). Nevertheless,
Mr. Eddy conceded that these oil wells created an unusual situation,
one that he had never run into before (Tr. 65). He could not state
whether, if subsidence occurred, the cribbing would or would not protect the oil well (Tr. 52).
Gary Craig, Peabody's assistant safety manager, who also did not
appear to have any special qualifications in the field of oil well
drilling, expressed the view that cribbing was & waste of time and
money (Tr. 109). He testified that since the abatement he has
examined the cribs and they have taken no more weight than is normal
as the mine progresses and that is not a significant amount (Tr. 109).
MSHA adduced no evidence contrary to such testimony about weight.
Randall Dempsey, area engineer for Peabody, supervises all mapping and plotting of the mine and supervises all permits issued for
the mine. He has worked for Peabody for 9 years, has a B.S. degree
in civil engineering from the University of Missouri and he has a
registered professional engineer's license issued by the State of

5/ "Subsidence" is defined in the Dictionary of Mining, Mineral and
Related Terms, U.S. Department of the Interior (1968), as follows:
"Subsidence. (a). A sinking down of a part of the earth's
crust. Fay. (b). The lowering of the strata, including the surface,
due to underground excavations. See also maximum subsidence. Nelson.
(c). Surface caving or distortion due~effects of collapse of deep
workings. Pryor, 3."

478

Illinois (Tr. 117-119). Mr. Dempsey testified that subsidence could
happen and that in some cases it might be severe enough to take
safety precautions, altho~gh not necessarily barriers (Tr. 137).
In his view, the barrier provided by the coal pillars, in the case
of the oil wells here in issue, was sufficient protection (Tr. 138).
There was no evidence around the three wells of any oil, water
or gas seepage. Also, there was no methane (Tr. 50, ·107, 140).
Peabody has no direct control over the drilling of oil or gas
wetls through its Baldwin No. 1 Mine coal seam. The evidence is
sketchy, but it appears that Peabody either owns or leases the underground coal and other persons own the oil or gas resources and have
a right of access to such resources (Tr. 68, 135). The driller is
not required to obtain a permit from the mine owner to drill, but
management at the Baldwin No. 1 Mine, when aware the drilling is to
take place, requires the driller to operate where it will not be
hazardous to the mine. Ordinarily, the driller informs State
authorities, who, in turn, advise the driller to contact the operator of the affected mine. It is possible that drilling could take
place without the knowledge of the operator unless the actual drilling is heard inside the mine. In the instances of the oil wells in
issue, Peabody had advance notification of the drilling (Tr. 133,
135-136). Mr. Dempsey was aware of the drilling and he imparted
this information on two of the wells to the supervisor of the mine,
but he could not recall whether he had advised the supervisor about
the third well (Tr. 133).
Peabody, when it locates an oil or gas well while advance mining, notifies MSHA of that fact and seeks a permit if it intends to
mine within a 300-foot diameter around the well. One such permit
is R-6. In that instance, MSHA granted a permit to extract coal
within a 300-foot diameter subject to certain stated conditions,
including one that the barrier would be no less than required by
State laws. The pillar of coal containing the oil well in that
situation was 110 by 100 feet and the well was in one corner of
the pillar 30 feet from each of the two nearest openings or edges
(Tr. 119-120, 129). ·There have been many permits of this nature
issued to Peabody, but the minimum distance involved from the edge
of the pillar to the well was 30 feet. A number of permits were
in the 30- to 50-foot range (Tr. 141).
Discussion of Facts and Law
The inspector in these citations charged a violation of 30 CFR
75.1700 for each oil well drilled, stating, in substance, that the

479

barrier was less than 300 feet in diameter and that there had been
no approval given by MSHA for the smaller barrier. 6/ The cited
regulation, 30 CFR 75.1700, which is identical to section 317(a)
of the Act, requires (1) that the operator take measures to locate
an oil or gas well penetrating its mine, and (2) that when located,
the operator shall establish and maintain barriers around such oil
and gas wells in accordance with the State laws and regulations,
except that such barriers shall not be less than 300 feet in '
diameter subject to exceptions for lesser or greater barriers
depending upon the circumstances. J_/
A contention of Peabody is that the citations were not issued
witb reasonable promptness as required by section 105(a) of the Act
and, thus, that no violation of the regulation occurred. The conditions, as shown by the evidence, were observed by the inspector on
May 12, 1978, and the citations were not issued until 4 days later
on May 16. The 12th was a Friday, so the 13th and the 14th were
non-business days. Thus, the time of the investigation and the time
of the issuance of the citations were separated by 1 business day.
Normally, a citation is issued on the same day the condition alleged
to be a violation is found. In this instance, however, the inspector was not certain either that the conditions were violations, or
if violations, what corrective action should be recommended. He
consulted with his superiors because of the unusual nature of the
6/ The condition or practice described is the same in each of the
three citations except for the locations and size of the pillars.
That in Citation No. 269306 reads as follows:
"The operator permitted an oil well drill hole to be drilled
through the mine coal bed in active workings in a pillar approximately 380 feet by 40 feet between the No. 5 east and No. 6 east
Main entries. This was at the survey station No. 209+54. The Mine
Safety and Health Administration did not give approval nor were they
aware of the drilling taking place. The barrier was less than
300 feet in diameter."
7/ The regulation, 30 CFR 75.1700, in full text reads as follows:
"Oil and gas wells. Each operator of a coal mine shall take
rea.sonable measures to locate oil and gas wells penetrating coalbeds
or any undergrourtd area of a coal mine. When located, such operator shall establish and maintain barriers around such oil and gas
wells in accordance with State laws and regulations, except that
such barriers shall not be less than 300 feet in diameter, unless
the Secretary or his authorized representative permits a lesser
barrier consistent with the applicable State laws and regulations
where such lesser barrier will be adequate to protect against hazards from such wells to the miners in such mine, or unless the Secretary or his authorized representative requires a greater barrier
where the depth of the mine, other geologic conditions, or other
factors warrant such a greater barrier."

480

matter and ultimately the district and subdistrict managers determined the course of action which the inspector was to take. It
does not appear to me to be inappropriate that the inspector would
consult his superiors in these circumstances. The consultation took
a little extra time; thus, the delay of 2 business days does not seem
unreasonable. This is particularly so where there is no showing that
such delay was in any way prejudicial to Peab9dy. Accordingly, I
reject this contention of Peabody and hold that the citations were
issued with reasonable promptness.
The principal argument made by Peabody is that 30 CFR 75.1700
does not cover wells drilled after an area has been mined. Peabody
argued during the hearing that the regulation covers only the discovery of a well already in existence as mining progresses. It
based this argument on asserted differences in the two situations.
Peabody contended that mining into a new area where a well is located
presents a special hazard because pressures may have been built up
which will burst out suddenly if the well casing is ruptured. On
the other hand, it maintained that where wells are drilled in a
mined-through area and are maintained and producing, there is no
pressure and the hazard is not that which 30 CFR 75.1700 was intended
to cover. Peabody, in its posthearing brief, takes essentially the
same position, but stresses more the fact that MSHA itself was not
sure about the way to handle this matter. Peabody also contends in
its brief that cribbing was not a proper barrier.
MSHA argues that the requirement is for a 300-foot barrier around
any oil or gas well in active workings whether it is before or after
the area is mined. MSHA contends that the danger is the same in
either case.
The statutory provision and the regulation, 30 CFR 75.1700, as
noted above, are one and the same. In my view, there is no ambiguity
in this section of the Act. It requires the operator to establish
and maintain appropriate barriers wherever and whenever oil or gas
wells are located. Nevertheless, a review of the legislative background may be useful in giving a context to this provision of the law.
The requirement for barriers around gas or oil wells was originated by Congress in the Federal Coal Mine Health and Safety Act of
1969. This was section 317(a) of the 1969 Act and it became mandatory safety standard 30 CFR 75.1700. This provision was not changed
by the 1977 Act; hence, the background and history under the 1969
Act is relevant.
The Senate Report for the 1969 Act in its section-by-section
analysis explains the reason for the section:

481

Numerous inundations of gas into coal mines have been
caused by cutting into or approaching too near gas wells.
The sudden introduction of oil or gas into coal mines presents hazards that are difficult to handle. All possible
precautions should be exercised to safeguard against penetrating oil and gas wells by the operators.
Leg. Hist., Federal Coal Mine Health and Safety Act of 1969 (Comm.
Print-:-1970), pp. 83-84. I have found no other comments in the
1969 Act's Legislative History particularly useful in interpreting
this section of the Act; however, see pages 869 and 1136, Legislative History, supra.
Congress, in requiring the operator to establish and maintain
"barriers" around located gas and oil wells, did not indicate the
kind of barrier it intended and there is little to suggest the exact
purpose of the barrier other than for the. brief explanation quoted
above.
A "barrier," as defined in Webster's Third International Dictionary (1966), is "a material object or set of objects that separates,
keeps apart, demarcates, or serves as a unit or barricade." In the
mining industry, the term appears to have a more specific meaning.
A Dictionary of Mining, Mineral and Related Terms (Department of the
Interior, 1968), defines the term as follows:
barrier.
a.) Blocks of coal left between the workings
of different mine owners and within those of a particular
mine for safety and the reduction of operational costs. It
helps to prevent disasters of inundation by water, of explosions, or fire involving an adjacent mine or another part
of a mine and to prevent water running from one mine to
another or from one section to another of the same mine.
Mason, v. 1, p. 312. See also barrier pillar. b.) A low
ridge by wave of actiotl1lear the shore. Fay.
The same dictionary defines a related term thusly:
barrier pillar. a.) A solid block or rib of coal,
etc., left unworked between two collieries or mines for
security against accidents arising from an influx of water.
Zern. b.) Any large pillar entirely or relatively unbroken
by roadways or airways that is left around a property to
protect it against water and squeezes from adjacent property, or to protect the latter property in a similar manner.
Zern. c.) Incorrectly used for a similar pillar left to
protect a roadway or airway, or a group of roadways or airways, or a panel of rooms from a squeeze. Zern.
Based on these definitions, a "barrier" ordinarily would consist of a coal pillar or a rib of coal and the purpose is not only

482

to keep fluids and gases out of the mine, but also to prevent
"squeezes," that is, the squeezing down of the top, at least from
adjacent property~ As a historical matter, it appears that the use
of the coal pillar was originally developed by the petroleum and
natural gas industry to prevent subsidence due to mining from rupturing or dislocating a well bore. Quarto Mining Company, Docket No.
M 77-48 (Initial Decision, Judge Michels) (Dece~ber 5, 1977), p. 3.
The term "barrier", as used in the statute, would, I believe,
generally define a coal pillar, and its principal purpose, as referred
to in the legislative history quoted above, would be to safeguard
against penetrating oil and gas wells by operators. Nevertheless,
there is nothing in the statute or the legislative history limiting
the type of barrier to be used or its purpose so long as it relates
to protection against hazards from wells. The Act and the regulation
require simply that measures are to be taken to locate wells--there
being no implication that such must be in existence when the coal is
mined--and that appropriate barriers be established and maintained
when a well is located. The oil wells in issue in this proceeding
now exist; thus, the required measures to locate and to provide for
appropriate barriers must be taken. These particular wells were
located when the drillers made known to Peabody the fact that the
oil wells were to be drilled and where they were to be located.
As indicated, ordinarily the barrier to be established and maintained would be the coal barrier, but when that no longer exists or
only partially exists, other kinds of barriers made from other materials may have to be used. I t is significant that the Act and the
regu·lation, when referring to "barriers," or to a "barrie:i; 1' in no
place limits these to coal barriers; thus, they can be made of other
substances. The use of barriers may be required to protect against
subsidence if there is a risk that such a condition would rupture
the wells and release gases or liquids. The regulation is clearly
broad enough to protect the miners from hazards of such a rupture
as well as ruptures from accidental cutting in the mining process.
The courts have consistently held that the 1969 Act, because it
is safety or remedial legislation, should be broadly construed. The
same construction would be applicable to the 1977 Act. In District
#6, UMWA v. Interior Board of Mine Operations Appeals, 562 F.2d 1260,
1265. (D.C. Cir. 1976), the -court stated-: "Should a conflict develop
between a statutory interpretation that would promote safety and an
interpretation that would serve another purpose at a possible compromise to safety, the first should be preferred." See also St. Mary's
Sewer Pipe Company v. Director of U.S. Bureau of Mrrle-s:-2"62 F.2d 378
(3rd Cir. ·1959); Phillips v. Interior Board of Mine Operations ·
Appeals, 500 F.2d 772 (D.C. Cir. 1974); UMWA v. Kleppe, 532 F.2d 1403
(D.C. Cir. 1976); Freeman Coal Mining Co~ Interior Board of Mine
Operations Appeals, 504 F.2d 741 (7th Cir. 1974). If the statutory
provision reflected in 30 CFR 75.1700 is not interpreted to include

483

wells dr{lled in mined-out areas~ there would appear to be no
practical way in which MSHA could take measures in appropriate
instances to protect miners against the protential hazards of such
well bores. The condition found by the inspector in this case did
not constitute imminent danger and so, unless there is a violation,
he would be powerless to correct the condition, though it is determined to be a safety hazard. Therefore, it appears espe~ially
important to construe the Act so as to implement the remedial purpose in this particular section.
Under 30 CFR 75.1700, after the wells have been L>i~ated--in
this case after notification to Peabody by the drillers--the second
sentence of the regulation becomes operative. Therein, the Secretary or his authorized representative is empowered to permit or
require lesser or greater barriers. It necessarily follows and is
implied from the language of the Act, particularly where the minimum of 300 feet in diameter will not be provided, that the Secretary must be notified of such fact.
In these instances, in each case the coal pillar or barrier
through which the well was drilled is significantly smaller than
300 feet in diameter. Consequently, it was necessary for Peabody
to inform the Secretary and to obtain the necessary authorization.
Such a notification is designed to give and would give the Secretary an opportunity to investigate or to otherwise make a determination if the lesser barrier is adequate. If it is found not adequate,
then MSHA determines the size and type of any substitute barrier.
Based on the evidence and the reasonable implications therefrom, I
find that no notification was given to MSHA by Peabody as to the
existence and location of the three oil wells.
The violations of 30 CFR 75.1700 as to the oil wells here in
issue were, in my view, solely the failure to notify the Secretary
and not the failure to take 0ther action such as the construction of
additional barriers. The facts show that Peabody had no control over
whether a well would be drilled into the Baldwin No. 1 Mine, although
it apparently could exercise some influence over the exact location
of .the well. Because Peabody could not prevent the drilling and
because it had already mined the coal which would have constituted
a 300-foot coal barrier, it can hardly be held liable for the failure to establish and maintain such a coal barrier. It can, however,
be held for the failure to maintain a substitute barrier if that
should thereafter be determined as necessary.
Thus, I find that Peabody as to each of the oil wells, violated
30 CFR 75.1700 as alleged because of its failure to notify the Secretary or his authorized representative that such wells had been
located.

4~4

The primary challenge in these cases, however, is directed toward
the requirements which MSHA imposed upon Peabody as an abatement measure. Peabody, as the statement of facts fully outline, was required
to build cribs around each of the pillars at a cost ·to it of $21,000.
The position of Peabody, in effect, is that all of this cribbing was
unnecessary and of little or no value.
As I found above, under 30 CFR 75.1700 the operator is obliged
to notify MSHA that it has located oil or gas wells even if they are
drilled after the area has been mined out. Further, it seems clear
to me that under 30 CFR 75.1700, MSHA, after such notification, is
obliged to make a determination of the adequacy of the existing
batriers, which may be based upon an investigation. Thereafter, MSHA
must advise the operator of the measures it must take, if any, to
adequately protect the miners against potential hazards. While MSHA
seems to have made that determination in this case it has, on the
other hand, charged Peabody with violations of failures to have
proper ba.rriers prior to the making of the determination. In its
posthearing brief, MSHA makes clear its view that the lack of a sufficient barrier constitutes the violation (MSHA Brief, pp. 2 and 3).
In the instances of these oil wells, the barriers of coal which
were respectively 40 by 380 feet, 74 by 54 feet and 54 by 52 feet, all
were obviously less than the 300 feet in diameter minimum required by
the regulation regardless of where the wells were located within the
pillars. In my view, the proviso reading "or unless the Secretary
or his authorized representative requires a greater barrier where the
depth of the mine, other geologic conditions, or other factors warrant
such a greater barrier" is applicable to the conditions found. The
11
greater barrier" means in the instance of advance mining, a barrier
of coal exceeding 300 feet in diameter, but in instances such as
these oil wells where the coal has been partly removed before the
drilling, it means one that exceeds the existing diameter-or
measurement.
Thus, a.s to the wells involved, MSHA should have made an initial
or preliminary determination based on the depth of the mine, other
geologic conditions and other factors as to the corrective action,
if any, needed for the safety of the miners. Thereafter, if MSHA
found that some additional barriers were necessary, its proper course
of action would be t~ direct Peabody to erect such barriers and to
fix a reasonable time for their completion. There would be no violation unless Peabody failed to comply within the time fixed and if
it did fail it could be cited for a violation of 30 CFR 75.1700 even
though the original lack of barriers is no.t__a violation. MSHA did
not so enforce the regulation, but found violations for the initial
absence of barriers.
While MSHA did not follow the procedures outlined above, it did
make a determination that additional barriers were needed and it is

485

my view that any such determination is reviewable. This is not an
abatement procedure; rather, it concerns an initial determination by
MSHA that barriers are needed based upon the depth of the mine,
other geologic conditions or other factors. I will proceed hereafter
to consider whether MSHA has shown on this record justification for
its determination that greater pillars are needed.
The only evidence in support of the additional barriers was the
testimony of the inspector and as disclosed in the findings of fact,
the inspector was not an expert in this field. The inspector had
never been faced with a situation similar to this and considered it
sufficiently unusual to go to his superiors for a determination as to
what action to take. The inspector did not know whether the corrective action taken would prevent rupturing of the pipes.
Furthermore, the inspector who had investigated the matter did
not make the determination that cribs were necessary. The decision
was made by Mr. Eddy's superiors, apparently including the subdistrict manager. The person or persons who made the decision are not
identified in this record. There is no indication whatsoever that
this person or persons had any firsthand knowledge of the Baldwin
No. 1 Mine. The supervisor who told Mr. Eddy to issue the citations
did not inspect the mine and had not viewed the conditions for which
the citations were issued (Tr. 55-56).
On the other hand, Peabody's witnesses both testified to the
effect that the use of the cribs was unnecessary and a waste of
effort. These witnesses had viewed the scene and were fully familiar
with conditions at the mine. Peabody's Randall Dempsey, a licensed
engineer, has the best technical background of the three witnesses.
While Mr. Dempsey conceded that in some instances it might be necessary to take safety precautions where an oil well is drilled through
a small pillar, it was his opinion that the coal pillars existing
as to each of the wells in issue were sufficient.
The Baldwin No. 1 Mine has been given permits many times for
mining closer to wells than the mandated 150 feet and many of the
permits were in the range of 30 to 50 feet. No evidence was adduced
to show that the circumstances as to the wells in issue were markedly
different from the other cases in which permits were granted or that
the somewhat lesser distances involved were significant.
While it was revealed that the Baldwin No. 1 Mine had some subsidence, the evidence establishes that this is a normal condition.
There is no evidence that the degree of subsidence was in any way
unusual or that it was significant so far as the oil wells are concerned. No methane was detected and there was no evidence of any gas
or oil leaks. In particular, there was no evidence that the extensive cribbing, while possibly preventing some subsidence, would be
effective against an oil pipe rupture. The evidence is mostly to the
contrary, that is, that the cribhing would be ineffective.

486

Furthermore, because this is a mined-through area, there seems
to be little or no danger of an accidental rupturing of an oil well
and a sudden release of gas under pressure which may be occasioned
by such a rupture. This is because the coal has already been mined
in the area. No retreat mining is planned, but if it should take
place, the locations of the wells are known and thus this particular
danger would not be presented.
'lllere are other circumstances bearing on the matter. The testimony indicates that there is no pressure on the wells which are
active and pumping oil. The oil can be obtained only by pumping.
Also, 9ne of the wells, Stevenson No. 1, was securely plugged
below the coal seam with cement. As to this particular well, the
possibility of a gas leak would appear to be extremely remote, if
not entirely eliminated. There is no evidence that a rupture in
this case would present any potential hazard. MSHA's brief makes
no claim of a significant hazard stating only that "the possibility
of subsidence cannot be ruled out, and the reality of potential
danger associated with the presence of oil or gas wells in underground workings was not entirely eliminated" (MSHA Brief, p. 4).
I find on the basis of the evidence of record that MSHA has
failed to show that the cribs were necessary considering the depth of
the mine, geologic conditions and other factors and that in -the circumstances its action requiring that they be built was arbitrary
and capricious. §_/
In summary, Peabody violated 30 CFR 75.1700 by its failure to
notify the Secretary or his authorized representative of the existence of the three oil wells. It did not violate the regulation by
its failure to provide the cribbing which was ordered or required as
a corrective measure. The question of erecting the cribs is now moot
as they are already in place, but I further hold that MSHA did not
prove the necessity for the building of such cribs and that its
actions in the circumstances were arbitrary and capricious. MSHA
in its posthearing brief seems to come close to admitting that the
crib requirement was excessive, stating "It is possible that in this
8/ It should be stressed that this finding is based upon the evidence which the parties have presented. I have little doubt that the
MSHA officials proceeded with good motives. Nevertheless, if MSHA
had valid reasons for ordering the cribs, it failed to reveal them
on the record. It may be that MSHA believes it is not required to
justify such action and thus did not develop the evidence. If so,
it cannot prevail because as I have held above, MSHA has the burden
to prove the need for the co~rective action it orders under this
regulation.

487

case, a lesser barrier would have been determined as adequate, but
this decision rests not with the Operator but with the Secretary or
his authorized representative***" (MSHA Brief, p. 3).
Assessment of Civil Penalties
Having found that Peabody has violated 30 CFR 75.1700, it is
necessary to make specific findings on the statutory criteria set
forth in section llO(i) of the Act for the purpose of assessing an
appropriate penalty.
Peabody is a large company. There is no evidence that the penalties to be assessed herein will have an effect on the operator's
ability to continue in business. The history of prior violations
is shown by Government Exhibit No. G-10. This history will be
taken into account although no prior violation of 30 CFR 75.1700
is shown. The testimony indicates that Peabody otherwise has complied with this regulation. Insofar as the building of the cribs
is concerned, it appears that Peabody made good faith efforts to
achieve rapid compliance (Tr. 66).
1he inspector testified that the violations in this case were
serious because of the potential hazards from the possible rupturing
of gas or oil pipes. However, it is clear that the inspector was
addressing himself to the failure to provide the larger barriers, a
condition which has not been found to be a violation. The only violation found here was the failure to notify the Secretary of the
existence of the wells and such a failure to notify could be serious.
However, in this proceeding it appears that any danger resulting from
such failure was remote. I therefore find the violations to be only
slightly serious.
Finally to be considered is the matter of negligence. Peabody
adduced evidence that it had always notified the Secretary in
instances where it had located wells on advance mining. In these
instances, it did not notify the Secretary because it believed that
it was not required by the law to do so. While Peabody should have
known the requirements of the law and the regulations, in this case
because of the unusual circumstances, I find that it is liable only
for slight negligence.
Considering the above and also the good faith difference of view
over the application of the regulation to the particular condition
shown, I believe that only a nominal penalty is warranted. Accordingly, Peabody is assessed $25 for each of the three violations, or a
total of $ 75.
Conclusions
1. The Baldwin No. 1 Mine owned by Peabody Coal Company is subject to the Federal Mine Safety and Health Act of 1977.

488

2.

The Administrative Law Judge has jurisdiction in this matter.

3. The Applications for Review should be denied and those.
proceedings dismissed.
4. Peabody Coal Company violated 30 CFR 75.1700 as found herein
and should be and is assessed a penalty of $75.
ORDER
It is ORDERED that the applications for review are hereby DENIED
and the proceedings for review are DISMISSED.
I t is FURTHER ORDERED that Peabody Coal Company pay the penalties assessed herein in Docket No. VINC 79-52-P in the sum of $75
within 30 days of the date of service of this decision upon it.

~JM~ f??J1r~--M
Franklin P. Michels
Administrative Law Judge

Distribution:
Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Thomas F. Linn, Esq., Peabody Coal Company, 301 N. Memorial Dr.,
St. Louis, MO 63102 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900-15th
St., NW., Washington, DC 20005 (Certified Mail)

489

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTIMTIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRG tNIA 22203

June 4 ,. 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 79-198-P
A.O. No. 15-02002-03001 F

v.
Darby No. 4 Mine

EASTOVER MINING CO.,
Respo·ndent

DECISION
Pursuant to notice this matter came on for an evidentiary
hearing on Thursday, May 31, 1979. After the receipt of
testimony and documentary evidence from respondent's eyewitnesses
with respect to the violations charged l./ and the circumstances
advanced in mitigation and exculpation the following dispositio1.
was effected:
·
1.

With respect to the charge that a bolter helper
was killed as a result of his failure to move safety
jacks in the sequence required by the approved roof
control plan and safe mining practice due to inadequate
training and supervision, the parties, after consultation with the Presiding Judge, agreed to settle the
75.200 charge by payment of a penalty of $1,000.
Because of· the time lapse, one and one/half years after
the incident, it was impossible to determine what
conditions existed immediately before the roof fall
or the roof control plan that was being followed. It
was clear beyond doubt, however, that Mr. Bennett was
killed because of precipitous, unanticipated, ·and

1/ Pursuant to Rule 6ll(a) of the Federal Rules of Evidence,
the Presiding Judge reversed the order of proof to facilitate
his understanding of the conditions charged. Under the authority
of Rule 615 these witnesses were sequestered.

490

unpredictable behavior that was unforeseeable
and unpreventable by the- operator. In this connection, the evidence showed that with respect to the
particular conduct charged the operator had an adequate
safety training program supported by disciplinary
sanctions. It also showed that with an awareness that
he was working under bad roof, Mr. Bennett, contrary
to his training, instructions and common caution
attempted to remove one or more safety jacks prior
to installation of permanent support.
Under the circumstances, it was agreed that only
slight negligence could fairly be imputed to the
operator. See MESA v. NACCO Mining Co., VINC 76-99-P,
decision of December 17, 1976 (Merlin, J.); MESA v.
Mathies Mining Co., PITT 77-13-P, decision of
April 12, 1977 (Merlin, J.); Island Creek Coal Company,
(NORT 74-1007-P) decision of November 5, 1975,
(Kennedy, J.), modified 6 IBMA 240 (1976). Here,
as in the cases cited, the consequences of the
violation, while extremely serious, resulted from
circumstances of employee negligence not reasonably
foreseeable or preventable by the operator that
diminished the operator's responsibility under the
doc·trine of imputation to that of slight negligence.
Compare National Realty and Construction Company,
Inc. v. OSHRC, 489 F.2d 1257 at 1266-1267, n. 37
(D.C. Cir. 1973); MSHA v. Grundy Mining Co., Inc.,
BARB 78-168-P, decision of June 19, 1978 (Kennedy, J.).
2.

With respect to the 9harge that the operator failed
to take down or support loose roof in violation of
75.202, the evidence showed that neither Mr. Bennett
nor any other miner responsible for the work place
in question was aware of or had any reason to believe
that a concealed slickensided horseback rock was
resting on the safety jacks. The removal of the jack
or jacks did, of course, result in a failure to support
loose roof that was fatal to Mr. Bennett. In view,
however, of the uncontradict~d evidence that the roof
had been sounded and found firm before the jacks were set;
the fact that unintentional roof falls have never,
standing alone, been considered violations of 75.202;
the fact that the charge here was predicated on a claimed
admission by the bolter, denied under oath at the hearing,
that a jack had been set under an observed crack; and
the fact that the conduct charged should fairly be
considered subsumed under the 75.200 violation, the
charge was ordered dismissed.

491

The premises considered, it is ORDERED that the parties'
settlement of the 75.200 violation be, and hereby is APPROVED
and that respondent pay the agreed upon penalty of $1,000 on or
before Monday, June 11, 1979. It is FURTHER ORDERED that, subject
to payment, the captioned petition be D ISSED.

Joseph B. Kenne
Administrative Law Judge
Issued:

June 4, 1979

Distribution:
Karl S. Forester, Esq., Forester & Forester, Forester Bldg.,
First Street, Harlan, KY 40831 (Certified Mail)
Kramer, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203

Ster~en

492

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

June 5, 1979

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

Civil Penalty Proceeding
Docket No: BARB 78-494-P
A.O. No. 14-02502-02020V

v.
No. 18 Mine

.
SHAMROCK COAL COMPANY,
Respondent

DECISION
Appearances:

John H. O'Donnell, Attorney, Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Neville Smith, Attorney, Manchester, Kentucky, for
Respondent.

Before:

Judge Littlefield

Introduction
This is a proceeding for assessment of a civil penalty against
the Respondent and is governed by section llO(a) of the Federal Mine
Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9,
1977), and section 109(a)(l) of the Federal Coal Mine Health and
Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969).
Section llO(a) provides as follows:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or
who violates any other provision of this Act, shall be
assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation.
Each occurrence of a violation of a mandatory health or
safety standard may constitute a separate offense.
Section 109(a)(l) provides as follows:
The operator of a coal mine in which a violation
occurs of a mandatory health or safety standard or who
violates any other provision of this Act, except the
provisions of title 4, shall be assessed a civil penalty
by the Secretary under paragraph (3) of this subsection
which penalty shall not be more than $10,000 for each
such violation. Each occurrence of a vioiation of a

493

separate offense. In determining the amount of the
penalty, the Secretary 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 operator charged in attempting to achieve
rapid compliance after notification of a violation.
Petition
On June 23, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
a civil penalty charging one violation of the Act as follows:

Order No.

Date

30 CFR
Standard

7-0132

11/01/77

75.329

Answer
On July 21, 1978, Respondent, Shamrock Coal Company, filed a
detailed answer thereto, which denied the allegation and requested
a hearing thereon.
Trlbunal
A hearing was held on Wednesday, February 14, 1979, in Knoxville,
Tennessee. Both MSHA and Shamrock Coal Company (Shamrock) were represented by co.unsel. Posthearing briefs were filed by both parties.
Evidence

1.

Stipulations

The following stipulations were entered:
(a)
(Tr. 6).
(b)

The proceeding is governed by the 1969 Act and 1977 Act
The Judge has jurisdiction (Tr. 6).

(c) ·shamrock is the operator of the No. 18 Mine and is subject
to the Acts' jurisdiction (Tr. 6).
1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MESA).

494

(d)

The No. 18 Mine currently employs 262 people (Tr. 7).

(e) The total production of Shamrock for 1977 was 1.3 million
tons. The total production for the controlling interested party,
Mr. B. Ray Thompson, was 1.4 million tons in 1977 and projected to
be 1.5 million tons in 1978 (Tr. 7).
(f) The ability of Respondent to stay in business will not be
affected by any civil penalty assessed in this matter (Tr. 7).
(g) The inspectors who issued the notices and orders herein at
issue were duly authorized representatives of the Secretary (DAR) (Tr.
7-8).

(h) Copies of the notices and orders which are the subject of
the hearing were properly served on a representative of the operator
(Tr. 8).
(i) The No. 1 mine's previous history of violation is as
follows: January 1, 1970 through April 8, 1974, 113 violations,
$6,623 penalty paid; January 1, 1970, through May 1, 1977, 249 violations, $17,117 penalty paid (Tr. 8).
2.

Testimony-

A.

Michael F. Detherage

MSHA initiated its case through the testimony of Mr. Detherage,
the DAR who issued the 104(c)(2) order herein at issue (Tr. 9-15).
The inspector has been a DAR since 1975 (Tr. 11-12). Previously, he
had worked in Southeastern Kentucky during his apprentice period
(Tr. 12). He had be~n certified as an electrician by the Federal
Government but was~~ertified as a foreman by any jurisdiction (Tr.
13-14). He identified Government Exhibit No. 99 as Order No. 1 MFD,
herein at issue, as served on Mr. Charles L. Rice, superintendent of
the mine (Tr. 15; Govt. Exh. No. 99).
The order charges Respondent with the failure to establish a
bleeder system for a panel in the F section of the mine (Tr. 16-17).
There were, however, other bleeders in this active working section
(Tr. 17). The area was not sealed (Tr. 18). The system that they
had previously been following had involved cutting across a previously mined set of rooms leaving a path for ventilation (Tr. 19).
They mined out the pillars with a continuous miner (Tr. 18). They
were doing nothing in lieu of this system (Tr. 19-20). The required
ventilation was 9,000 cfm in the last open crosscut. This was complied with (Tr. 20). Small amounts of methane. were released at the
mine (Tr. 21).

495

He testified there was a ventilation system, however, according
to him1 there was no bleeding for the area that had been pillared (Tr.
21). He concluded that there had been an unwarrantable failure
because there could have been a buildup of methane and an ignition
(Tr. 21-22). The inspector understood "unwarrantable" as meaning
that the operator knew or should have known of the violation (Tr.
22). The operator knew of the violation because it was working in
the area every day and the operator turned a map into the district
office that showed the crosscuts to the old works had been left out
(Tr. 23).
This left-out area was brought to the attention of the inspector
by someone in the district office (Tr. 23). One of the reasons he
went to the mine was to investigate conditions seemingly appearing on
the district office map (Tr. 23). He could not enter the area because
it had been pillared out and fallen (Tr. 23). Therefore, all he could
rely on was the aforementioned map (Tr. 24).
On November 2, 1977, the next day, he issued a termination of
the order (Tr.-25; Govt. Exh. No. 100). It was issued because there
were two bleeders cut across to the righthand from the place from
which they were mining (Tr. 25). The operator demonstrated good
faith in affecting rapid compliance (Tr. 25-26).

The inspector is 30 years old and has had no experience in operation management or control of the general practices of mining
(Tt". 26A).
Though he did not remember whether he prepared the withdrawal
order before he arrived at the mine, he did know he was going to
prepare it based on the map (Tr. 27-28). Testimony with respect to
the district office map was accepted into evidence over Respondent's
objection, however, no ruling as to probative value was made at that
time and this fact will be addressed here (Tr. 33). The map was
never introduced. The map, it was alleged, was not presented by
counsel for MSHA because the inspector who possessed it was part of
another case which had been resolved (Tr. 31).
Respondent's lawyer averred that he did not know that Shamrock
also lacked a copy of the map (Tr. 31-32).
At the office, prior to the inspection, Messrs. Ken Dixon and
Larry Lang went over the map and showed Inspector Detherage the
deficiency and suggested that the inspector take action as the condition was dangerous (Tr. 34).

Mr. Lang had had a disagreement with an em_ployee of_Shamrock
Coal Company (Tr. 34). The order wa·s issued on the suggestion of
Mr. Lang and Mr. Dixon (Tr. 34-35).

496

Mr. Detherage made no attempt to observe the actual condition
as it was impossible to get into the area to check it out (Tr. 35),
therefore, the only source of information with reference to the
violation was on the map submitted (Tr. 36-37).
In May of 1977, Mr. Detherage and Mr. Lang had previously written
an order of this type (Tr. 38), however, the inspector had never been
in this particular set of rooms, though he was a regular MSHA
inspector.
According to the map, with respect to other panels, Shamrock was
establishing a bleeder system (Tr. 39). The .01 of 1 percent of
methane that was found.at the mine was not found in the F section
(Tr •. 40-41). The mine was approximately 7 square miles and the
sample showing methane had been taken more than a mile away from the
F section, at the fan (Tr. 42).
The witness believed that there would have been the possibility
of an ignition (Tr. 45). There also could possibly have been a
methane buildup (Tr. 46). He failed to bring the map because nobody
tolti him to bring it (Tr. 49). He further testified that the map for
which the order was issued, showed a set of rooms that was stopped.
He was unable to testify which of two separate panels the order
referred to (Tr. 52). The map used herein did not purport to show
the pillar recovery system (Tr. 53). Said map was provided by Respondent and was submitted for the ventilation plan (Tr. 54).
Mr. Detherage did not remember checking the map posted at the
mine on November 1, 1977, which was the most up-to-date map including
prescribed changes (Tr. 59).
Inspector Detherage attempted to sketch the panels involved, but
stated that there was no way that the absence of a bleeder could be
observed (Tr. 63), nor woulc a smoke tube test be conclusive on the
subject (Tr. 64).
In again discussing the missing map, Mr. Detherage stated that
he thought inspector Albert F. McFarland was supposed to have had it,
however he did not know if Mr. McFarland had actually found it (Tr.
65).
The sketch drawn by Inspector Detherage was acceppted into the
record, over Respondent's objection, however, no ruling as to probative value was made at that time (Tr. 66; Govt. Exh. No. 99A).
B.

Gordon Couch

Respondent initiated its case through the testimony of Gordon
Couch, who has worked at Shamrock as company safety inspector since

497

August of 1977 (Tr. 76). He has worked in mining for about 20 years
(Tr. 73). Previously, he had worked as a mine foreman and had been
a Federal mine inspector (DAR) since 1970 (Tr. 74). He had became a
coal mine inspector supervisor in 1975 at the subdistrict office in
Barbourville until August of 1977 (Tr. 75-76). The order at issue
was is.sued after he went to work for Shamrock (Tr. 77).
He testified based on what he personally observed of bleeder
systems at Shamrock (Tr. 78). The map upon which the order was based
was submitted to MSHA as part of an effort to get a ventilation plan
approved (Tr. 79), however, the map was not returned to Shamrock (Tr.
79-80).
The witness remembered the bleeder system because a road had
sunk in the area of the panels in question (Tr. 81). He knew they
had a bleeder system because they cut in two places (Tr. 81). The
bleeder had been established at the time the order was issued (Tr.
82).
The reason that he knew the bleeders had been established before
the order was issued is that this area at issue is two panels behind
where a continuous miner had been covered up and removed from the
surface (Tr. 83). Several mountain breaks were between the covered
continuous miner panel and the panel at issue. They had several
bleeders where the surface had slid in (Tr. 83-84).
The map) which had to be kept up-to-date at the mine 1 did reflect
the bleeder system (Tr. 84-85). The witness believed that any violation was on the map, not in the mine, however, to his knowledge there
was no violation on the map submitted (Tr. 86).
Mr. Couch testified as to the description of the bleeders (Tr.
90-94). He further testified that no methane was being released by
the F section as shown by an MSHA report of May 16-31, 1978 (Tr. 9498). However, it probably would not show the situation in November
1977 (Tr. 99).
The witness believed that the map submitted did not reflect the
bleeder system because they were not pillaring at the time (Tr. 101).
He thought that they were in the development process (Tr. 101).

c.

John Henry Sizemore

Respondent's second witness was John Henry Sizemore, general
mine foreman at the mine (Tr. 105-106). He stated that the area in
question was provided with a bleeder system which was adequate and
proper (Tr. 107, 112).

498

Mr. Detherage brought the violation with him from the
Barbourville office and laid it on Mr. Sizemore's desk. He never
went to check the bleeder system and did not take a smoke tube test
and did not check an outcrop (Tr. 108).
Where the road collapsed as referred to, supra, they had to place
a 2-inch plastic pipe to retain the integrity of the bleeder system
(Tr. 110-111), however, he believed the pipe was added after the violation was written (Tr. 172).
Mr. Sizemore never detected methane from the section (Tr. 116).
issues Presented
1. Whether Order No. 1 MFD, November 1, 1977, recites a violation of 30 CFR 75.329.
2. Assuming that a violation has been established, what is the
appropriate penalty to be imposed?
Discussion
A.

General

The standard herein at issue provides as follows:
Bleeder Systems
On or before December 30, 1970, all areas from which
pillars have been wholly or partially extracted and abandoned areas as determined by the Secretary or his authorized representative, shall be ventilated by bleeder
entries or by bleeder systems or equivalent means, or be
sealed, as determined by the Secretary or his authorized
representative. When ventilation of such areas is
required, such ventilation shall be maintained so as
continuously to dilute, render harmless, and carry away
methane and other explosive gases within such areas and
to protect the active workings of the mine from the hazards of such methane and other ~xplosive gases. Air
coursed through underground areas from which pillars have
been wholly or partially extracted which enters another.
split of air shall not contain more than 2.0 volume per
centum of methane, when tested at the point it enters
.such 9ther split. When sealing is required, such seals
shall be made in an approved manner so as to isolate with
explosion-proof bulkheads such areas from the active
workings of the mine.
Two aspects of proof have been put in contest by the litigants
with respect to the existence of a violation.

499

The first issue is whether MSHA has established a prima-facie
case in demonstrating the existence of a violation on November 1,
1977. The question presented is whether the best-evidence rule is
properly invoked by Respondent to bar the testimony of Inspector
Detherage with reference to the ventilation map forwarded to the
Barbourville office.
The second issue, on the merits, is whether, assuming MSHA has
established its prima-facie case, the testimony of Respondent's
witnesses Mr. Couch and Mr. Sizemore, successfully rebuts the
Petitioner's showing.
B.

Best Evidence

The best evidence rule has been defined as requ1r1ng that "in
proving the terms of a writing, where the terms are material, the
original writing must be produced unless& it is shown to be unavailable for some reason other than a serious fault of the proponent."
McCormick on Evidence, § 230 (2nd ed., 1972). The rule has been
limited to legally operative documents. See Id. at §§ 233-234.
The map in question is clearly a legally operative document as
Inspector Detherage testified that he did not inspect the mine, but
issued the order based on the map (Tr. 24, 27-28, 36-37).
The issue~of whether the map is a writing within the meaning of
the rule, must give greater pause. It has been suggested that the
limitation of the rule to writings rests on the principle that writings exhibit a finess of detail generally lacking in other chattels.
Id. at § 232. The rationale prohibiting alternative admission is
the protection of this detail. See id. Modern comment has suggested
that a judge should have the discretion to apply the rule to other
chattels in light.of the need for precision, the ease and difficulty
of production, and the simplicity or complexity of the inscription.
Id.; 4 Wigmore, Evidence, § 1182 (1972); cf. United States v. Duffy,
454 F.2d 809 (5th Cir. 1972) (shirt with three-letter laundry mark
not required for testimony on mark). In the Judge's view, the exercise of discretion shoulq also rely on the quality and nature of the
proferred secondary evidence, ~McCormick, at §§ 231, 233.
The proponent explained the failure of production on three
grounds: (1) the inspector who possessed the map was a part of
another case which had earlier been resolved, therefore, the inspector was no longer available, as he had left the hearing room (Tr. 31),
(2) Inspector Detherage's testimony that he did not bring the map
because nobody told him to bring it (Tr. 49), and (3) Inspector
Detherage's testimony that he did not know whether Inspector
McFarland, who was supposed to have brought the map, had actually
found it (Tr. 65). Clearly, MSHA has not presented a case of dire
necessity for the production ''of its secondary evidence.
500

Further, though these explanations could rationalize the failure to introduce the original map, they do not serve as adequate to
justify the failure to introduce a copy of that map. Nor has MSHA
attempted to explain this failure (Brief of MSHA, pp. 2-4). The
void created by the absence of the map is purportedly filled by
testimony of Inspector Detherage and a sketch made during the
hearing in support of his testimony (Govt. Exh. No. 99A).
The inspector testified that he had never been in this particular set of rooms, though he was the regular MSHA inspector for the
mine (Tr. 38). Further, when shown a map, the inspector was unable
to ·state which set of rooms, as between two separate panels, were
involved in the alleged violation (Tr. 52). Further, Inspector
Detherage had not originally identified the alleged deficiency on
the submitted map. MSHA employees Dixon and Lang had identified it
at the Barbourville office (Tr. 34), and recommended action (Tr. 34).
I conclude that the probative value to be given Inspector Detherage's
testimony is of de minimus value on the subject of the contents of
the map on which~his alleged violation was based.
Therefore, as there is obviously a need for precision, there was
no apparent difficulty of production, the map's inscriptions are relatively complex, and the. proffered secondary evidence is inherently
and in actuality, unreliable as to the crucial issue of which panels
were alleged to be in violation (Tr. 52), I conclude that no probative
value will be given the testimony of Inspector Detherage with respect
to the district office map, as it fails to meet the requirements of
the best-evidence rule. The motion of Respondent to strike said
testimony will be granted. Without said testimony, MSHA has failed
to establish a prima-facie case for the existence of the violation.
C.

Merits

Assuming, arguendo, that the testimony of Inspector Detherage
were admissible, MSHA has still failed to preponderate. The inspector introduced no evidence that pillar recovery had been initiated
when the map was submitted. The regulation, by its terms, is not
effective until the process has at least begun. 2/ 30 CFR 75.329.
It was Mr. Couchts opinion that the map at issue: if it did not show
a bleeder system, did. not show one because the operator had not
started pillaring (Tr. 101). Therefore, even if MSHA had introduced
the map, it could very well be that there would have been no violation established.
As noted, supra, Inspector Detherage had not seen the panels
(Tr. 38) or checked the up-to-date map at the mine (Tr. 59) which
would allegedly have reflected the system (Tr. 84-85).
2/ I express no op1n1on as to whether the regulation requires
bleeders to be in place during or after recovery.

501

On the other hand, Mr. Couch stated that he had personally
observed the bleeder system (Tr. 78). He remembered this particular
one because a continuous minerhad covered two panels behind this
panel (Tr. 83). Mr. Sizemore and Mr. Cou~h testified that they
remembered this bleeder because of a road collapse which affected
it (Tr. 110-111; 78-83).
Weighing the personal observations of Respondent's witnesses
backed by detailed explanations in support of their memories against
the. testimony of the inspector who could not remember from the map on
which the violation was based, which panel was involved, I conclude
that Petitioner has failed to pr~ponderate.
Findings of Fact
Upon consideration of the record as a whole, I find:
1. The Judge has jurisdiction over the subject matter and the
parties in this ·proceeding.
2. A bleeder system sufficient to comply with 30 CFR 75.329
did exist at the Shamrock No. 18 Mine on November 1, 1977.
3. The inspector did not inspect the mine, but issued the order
based on the district-office map that was not offered into evidence.
4. The inspector neither saw the panels involved nor checked
the up-to-date map at the mine.
5. The accumulated probative evidence fails to establish the
fact of a violation cited above.
Conclusions of Law
1. This case arises under the provisions of sections llO(a)
of the 1977 Act and 109(a)(l) of the 1969 Act.
2. All procedural prerequisites established in the statutes
cited above have been complied with.
3. Testimony by Inspector Detherage with reference to the map
upon which this order was issued is given no probative value and is
struck for failure to comply with the best evidence rule.
4. Exhibit No. 99A is given no probative value and is struck
for failure to comply with the best evidence rule.
5. The Government ha_s failed to establish a violation of either
30 CFR 75.329 or the Act.

502

ORDER
WHEREFORE the above-captioned .is DISMISSED.
--,,JJ. ,1

I)

--/';)

/I/ t.l.£:£AY'~--' •

.

/?.,r/J.~ii· t,,,,I

c1-,.i,:'.~. ; «,,,,_..
""s'.

Malcolm P. Littlefield,.Judge
Distribution:
·John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962
(Certified Mail)
Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919
(Certified Mail)

503

FEDERAL MINE SAFETY AND HEALTH REV&EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULC::VARD
ARLINGTON. VIRGINIA 22203

June 5·, 1979

Civil Penalty Proceedings

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

Docket No. WILK 79-63-PM
A/O No. 06-00345-05001

v.

Southington Pit and Mill
NEW HAVEN TRAP ROCK-TOMASSO,
Respondent

Docket No. WILK 79-92-PM
A/O No. 06-00012-05001
North Branford Plant #7
Docket No. WILK 79-93-PM
A/O No. 06-00013-05001
Plant #1 Quarry and Mill
Docket No. WILK 79~101-PM
A/O No. 06-00271-05001
Helming Brothers Plant

DECISION
Appearances:

Ronald C. Glover, Esq., Office of the Regional Solicitor, Department of Labor, Boston, Massachusetts, for
Petitioner MSHA;
Robert B. Smith, Esq., and Edward Kutchin, Esq.,
Boston, Massachusetts,· for Respondent.

Before:

Judge Merlin

The above-captioned cases are petitions for the assessment of
civil penalties filed by the Mine Safety and Health Administration
against New Haven Trap Rock-Tomasso, heard on May 15, 1979.
At the outset of the hearing, the operator's counsel challenged
MSHA's assessment procedures. I held that the hearing before me is
de novo in all aspects, and that MSHA's assessment procedures are
not involved and that it is not my function to reapply MSHA's point
system stating in this respect as follows (Tr •.12-14):

504

I hold that I have no authority to review the manner
in which the Secretary of Labor arrives at proposed penalty amounts, whether by a point system or otherwise. I
further hold that I am not bound in any way to follow
or apply the point system or.any other system the Secretary of Labor uses to arrive at a proposed penalty
amount. Section 105(d) of the Act sets forth that when
an operator disagrees with the proposed assessment, the
Secretary.of Labor shall notify the Commission, and the
Commission shall afford an opportunity for a hearing under
section 554 of the Administrative Procedure Act.
Section llO(a) of the Act provides that the operator
of a mine shall be assessed a civil penalty by the Secretary which shall not be more than $10,000 for each violation. Thereafter, section llO(i) provides that the
Commission has the authority to assess all civil penalties provided in this Act. Further, section llO(i) provides that 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.
Part 100 of 30 CFR contains a so-called point system
which apparently is used by the Department of Labor in
determining the amount of proposed civil penalty. In my
view, Part 100 has nothing whatsoever to do with the Commission. Part lpO only concerns the Department of Labor.
This is made clear by section 100.2 of Part 100 which
refers only to the Office of Assessments, Mine Safety
and Health Administration, Department of Labor. Section
100.6 of 30 CFR makes clear that if an operator disagrees with a proposed assessment arrived at under the
point system, it can then request a hearing before the
Federal Mina Safety and Health Review Commission.
Accordingly", it is clear to me that when a case
comes to the Commission and its administrative law judges,
the point system is left behind and is no longer a factor.
The administrative law judge is to apply the six criteria
set forth in section llO(i) solely in his own judgment,
based upon the evidence presented before him in the hearing which as already noted is given in accordance with
section 554 of the Administrative Procedure Act. I have
no authority to express any views with respect to how the

505

Secre·tary of Labor reaches his proposed penalty amount,
and I am not bound in any way to even consider that
system when I determine what should be an appropriate
penalty amount.
The Act makes clear that my task is to give an operator who disagrees with the actions of the Secretary of
Labor the opportunity to have a de novo hearing. In my
opinion, a de novo hearing is one-in which the entire
slate is wiped clean. Indeed, the Commission and its
administrative law judges would not be independent if
they were forced to follow some system devised by the
Secretary of Labor in determining penalty amounts, and
any hearing that was held on such a basis would not in
my opinion truly be a de novo hearing. Therefore, based
upon the evidence whic~I hear, I will determine for
myself whether a violation exists in each instance, and
where I determine that a violation does exist, th.en I
will determine in my judgment in light of the six criteria set forth in section llO(i) what the appropriate
amount of civil penalty should be.
At the hearing, counsel for both parties agreed to the following
s.tipulations: (1) the operator is the owner and operator of the subject surface mine which is an open quarry; (2) the operator and the
mine are subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977; (3) I have jurisdiction in these cases; (4) the
inspector who issued the subject notices was a duly authorized representative of the Secretary; (5) true and correct copies of the subject notices were properly served upon the operator; (6) imposition
of penalties in these matters will not affect the operator's ability
to continue in business; (7) all the alleged violations were abated
in good faith; (8) the operator is medium in size; (9) the operator
has no history of prior violations; (10) all the witnesses who will
testify are accepted as experts generally in the field of mine health
and safety (Tr. 4).
Citation No. 212801
At the hear~ng, documentary exhibits were received and witnesses
testified on behalf of MSHA and the operator regarding this item. At
the conclusion of the taking of evidence, the parties presented oral
argument (Tr. 44-46). A decision was then rendered from the bench
setting forth findings, conclusions, and determinations with respect
to the alleged violation as follows (Tr. 46-48):
I find the violation occurred. The mandatory standard requires that cab windows shall be in good condition.
There is no dispute that the side vent window had a crack
of approximately 3 inches. I find therefore that the

506

window was not in good condition and accordingly, that a
violation existed.
I further find that the violation was of moderate
gravity. I recognize that the inspector testified· that
the occurrence of an injury was likely, ~1ereas his
written statement completed at about the time of the
inspection indicated the opposite. However, it is clear
to me from the testimony that it was possible that the
3-inch cut could have gone across the vent entirely and
could have cut the operator of the cab, when the glass
fell out. On this basis, I find the violation was of
moderate gravity. If the major part of the window had
been involved, this would have been a much more serious
violation. I further find that the operator was negligent and that the degree of negligence was moderate.
This truck was inspected on Saturday and the inspection
took place on Tuesday. Either the inspection on Saturday
missed this crack or the crack occurred between 6 a.m.
Monday morning when work begPn for the week and the time
the inspection took place. In any event, however, the
crack on Tuesday was visible and the cab was being operated over roads at least part of which were rough and
caused vibrations. Accordingly, I find the operator was
guilty of moderate negligence.
I further incorporate the stipulations with respect
to the operator's ability to continue in business, good
faith abatement, no history of prior violations and
medium size. In light of all the foregoing factors
and in accordance with the mandate of section llO(i) of
the Act, a penalty of $75 is hereby imposed. 1/
The foregoing bench decision is hereby affirmed.
Citation No. 212802
This violation is based upon a failure to have an audible warning device on a piece of mobile equipment. The penalty originally
assessed was $106. The parties recommended a settlement of $86. The
Solicitor advised at the hearing that the equipment in question had
been checked previously on the day the violation was found and that
when it was checked it was found to be in appropriate working order.
In addition, the Solicitor advised that the area in question was not
heavily traveled. Accordingly, neither negligence nor gravity was
as great as originally was ~hought. On this basis, I accepted from
the bench the recommended settlement of $86.

1/

The original assessment had been $32.

507

Citation .No. 212803
This violation was for a cracked safety.glass in the window of a
cab. Since the Solicitor advised at the hearing that the circurastances of this violation were the same as those in Citation
No. 212801,_ an assessment of $75 was agreed to by counsel for both
parties. I accepted the Solicitor's representations and a penalty
of $75 was assessed for this item.
Citation No. 212804
This violation is based upon the failure to provide a "no
smoking" sign in an area where explosion hazards might exist. The
penalty originally assessed was $60. The parties recommended a
settlement of $32. The Solicitor advised at the hearing that he had
recently received information that the sign was in an area subject to
inclement weather, that for 4 days previous to the date of the citation there had been a major storm in the area which blew the sign
down and that the operator, even with the exercise of due diligence,
could not have replaced the sign any faster. Accordingly, it appears
that the operator's negligence was minimal. On this basis, I accepted
from the bench the ·recommended st: ttlement.
Citation No. 212805
This violation is based upon the failure to provide berms for a
portion of a roadway. The penalty originally assessed was $114. The
parties recommended a settlement of $84. The Solicitor advised at the
hearing that the roadway in question was not well-traveled and that
immediately prior to issuance of the citation the road had been washed
out by inclement weather so that the operator was not negligent.
Based upon the foregoing factors, I accepted from the bench the
settlement of $84.
Citation No. 212806
This violation is based upon the failure to provide a cover for
an electrical junction box. The penalty originally assessed was
$122. The parties recommended a settlement of $105. The Solicitor
advised at the hearing that although the cover was not present all
the wires involved were thoroughly and properly insulated,. thereby
reducing the hazard of electrical shock. The Solicitor further
advised that this was an area where employees did not usually work.
On the basis, therefore, that gravity was less than had originally
been evaluated, I accepted from the bench the settlement of $105.
Citation No. 212807
This violation is based upon the failure to guard a 5-foot
crusher motor. The penalty originally assessed was $122. The parties

508

recommended a settlement of $85. The Solicitor advised at the hearing
that the machine in question did have a railing but that because of
vibrations the railing recently had become loose. Because of this,
the Solicitor advised that the operator was less negligent than had
originally been thought because the Office of Assessments did not
know that there had been any railing at the time they proposed the initi
assessment. On this basis, I approved from the bench the settlement
of $85.
Citation No. 212808
This violation is based upon the failure to have guards around
an item that was being welded. The penalty originally assessed was
$90 and the parties recommended a settlement of $80. The Solicitor
advised at the hearing that the operator has a very adamant policy
instructing its employees that guarding is required and that this
policy is strongly enforced. The employee disregarded this policy
and in accordance with the operator's strong policy a letter regarding
his failure to follow instructions was placed in his file and was
sent to the union steward. On this basis, the Solicitor took ·the position that the operator was guilty of only minimal negligence. In
light of the circumstances presented, I accepted from the bench the
settlement of $80.
Citation No. 212815
The Solicitor moved to withdraw the citation on the ground that
it.had been improperly issued and his motion to do so was granted from·
the bench.
Citation No. 212817
The Solicitor moved to withdraw this citation on the ground that
it had been improperly issued and the motion was granted from the
bench.
Citation No. 212833
The alleged.violation was for a failure to provide a midrail on
a conveyor walkway. The cited mandatory standard, 30 CFR 56.11-2
provides that such walkways be of substantial construction and provided with handrails. Admittedly, the walkway in question had a
handrail. Accordingly, I held that it satisfied the cited standard.
The Solicitor then moved to amend the citation to reflect a violation
of another mandatory standard. From the bench I denied the motion
to amend because the operator was not afforded sufficient notice.
Acc~rdingly, no penalty was assessed.with respect to this item.

509

Citation No. 212834
This violation is for a failure to provide guarding on moving
machinery. The penalty originally assessed was $78 and this is the
amount of the recommended settlement. The Solicitor advised at the
hearing that just prior to the inspection the guarding in this case
had been taken off for repair and maintenance purposes. In addition,
the Solicitor advised that the area in question was not well-traveled
and there were no employees in the general area. Based upon these
factors, I approved from the bench the recommended settlement of $78.
Citation No. 212835
This violation is based upon the failure to provide a guard for
a balance wheel. The original assessment was $90 and this is the
amount of the recommended settlement. The Solicitor advised at the
hearing that the balance wheel was not located in a well-traveled
portion of the plant. Accordingly, gravity was only moderate.
Therefore, I approved from the bench the recommended settlement of
$90.
Citation No. 212836
This violation is based upon the failure to provide a handrail
on a portion of the platform for the sandplate. The initial assessment was $56 and the recommended settlement was for this amount.
The Solicitor advised at the hearing that there were several mitigating factors. He stated that the total distance from the walkway
to the ground level was only 5 to 6 feet and that a great deal of
sand had fallen on this walkway so that any employee involved would
only have fallen 3 or 4 feet into soft material. In addition, the
Solicitor stated that the violation was the result of the action of
one of the operator's employees which was contrary to the operator's
own stated policy. In light of the foregoing circumstances, I
accepted from the bench the recommended assessment of $56.
Citation No. 212838
This citation is for failure to provide a fire extinguisher on
a fuel truck. The initial assessment was $60 and this is the amount
of the recommended settlement. The Solicitor advised at the hearing
that the cited truck without a fire extinguisher was parked between
two other trucks each of which was equipped with an operating fire
extinguisher and that therefore gravity was only moderate. In light
of these circumstances, I accepted from the bench the recommended
penalty of $60.

510

Citation No. 215486
The Solicitor moved to withdraw this citation on the grounds that
it had been improperly issued. The motion was granted and no penalty
was assessed for this item.
Citation No. 215487
The violation in this case was based upon the fact that the
emergency br.ake on the front-end loader was not adjusted properly.
The initial assessment was $32 and the recommended settlement was
for this amount. The Solicitor advised that the primary braking
sy~tem was in proper working order and that therefore gravity was
greatly mitigated. I pointed out that I was not bound by the
original assessment amount which appeared to me to be low, but
that in view of the fact that the primary braking system was
operating satisfactorily, the recommended penalty was accepted.
ORDER TO PAY
The operator is hereby ORDERED to pay $938 within 30 days from
the date of this decision~
wJ~

Paul Merlin
Assistant Chief Administrative Law Judg
Issued:

June 5, 1979

Distribution:
Ronald C. Glover, Esq., Office of the Solicitor, U.S. Department
of Labor, JFK Federal Building, Goverrunent Center,
Boston, MA 02203 (Certified Mail)
Robert B. Smith, Esq., Edward Kutchin, Esq., 52 Commercial Wharf,
Boston, MA 02110 (Certified Mail)
Thomas A. Pooley, Esq., 7th Floor, 675 Massachusetts Avenue,
Cambridge, MA 02139 (Certified Mail)
Administrator, Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

511

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

June 5, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. VINC 79-66-PM
A.O. No. 47-00235-05003
Waukesha Quarry & Mill

WAUKESHA LIME & STONE COMPANY,
INC.,
Respondent
DECISION
Appearances:

Eddie Jenkins, Esq., Office of the Solicitor;
U.S. Department of Labor,- for Petitioner;
Frederic G. Baldowsky, Esq., Miller & Niebler,
Milwaukee, Wisconsin, for Respondent.

Before:

Chief Administrative Law Judge Broderick

cSTATEMENT OF THE CASE
This is a civil penalty proceeding charging Respondent with a violation of section 103(a) of the Federal Coal Mine Safety and Health
Act of 1977, 30 u.s.c. § 813(a). The violation charged is the refusal
of Respondent to allow the Federal mine inspector to enter its premises
on July 10, 1978, for the purpose of conducting a mine inspection.
Respondent admits that it refused to permit the inspector to enter and
inspect its premises. As affirmative defenses, Respondent states that
it operates a quarry which is not a mine within the meaning of that
term in the Act, and that a nonconsensual inspection of its premises
without a valid search warrant would violate rights guaranteed to
Respondent under the fourth amendment to the Constitution.
Respondent moved for a continuance of the proceeding during the
pendency of a civil action in the United States District Court for the
Eastern District of Wisconsin, wherein the Secretary of Labor is seeking to have Respondent enjoined from refusing to admit authorized representatives of the Secretary of Labor to inspect Respondent's facilities. The motion was denied by order issued March 15, 1979.
Pursuant to notice, the matter wa-s called for hearing on the
merits on ApFil 23, 1979, in Milwaukee, Wisconsin. Walter C. Brey, a
Federal mine inspector, testified for Petitioner. Douglas E. Dewey,
president of Respondent, James L. Harris, foreman of Respondent's
"dust plant," and George Hart, sales manager of Respondent, testified
on behalf of Respondent.

512

At the conclusion of the testimony, counsel stated their respective positions on the issues raised by this proceeding and waived
their rights to file written proposed findings and conclusions. All
proposed findings and conclusions not incorporated herein are rejected.
STATUTORY PROVISIONS
Section 103(a) of the Act provides in part:
Authorized representatives of the Secretary * * * shall
make frequent inspections and investigations in coal or
other mines each year for the purpose of (1) obtaining,
utilizing and disseminating information relating to health
and safety conditions, the causes of accidents, and the
causes of diseases and physical impairments originating in
such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether an
imminent danger exists, and (4) determining whether there is
compliance with the mandatory health or safety standards or
with any citation, order, or decision issued under
this title or other requirements of this Act. In carrying
out the requirements of this subsection, no advance notice
of an inspection shali be provided * * *·

*

*

*

*

*

*

*

Section 3(h)(l) of the Act provides in part:
"Coal or other mine" means (A) an area of land from
which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B)
private ways and roads appurtenant to such area, and (C)
lands, excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
machines, tools, or other property including impoundments,
retention dams, and tailing ponds, on the surface or underground *

*

*

* *.

*

*

*

*

*

ISSUES
1. Is Respondent's stone quarry a "mine" subject to the provisions of the Act?
2. Does the Act require or permit nonconsensual inspections
without valid search warrants?
3. ·If a violation of the Act has been established, what is the
appropriate penalty?

513

FINDINGS OF FACT
On the basis of the pleadings, stipulations of the parties, the
testimony and other evidence introduced at the hearing, I make the
following findings of fact.

1. On July 10, 1978, Respondent was the operator of a limestone
quarry in Waukesha County, Wisconsin, known as the Waukesha Quarry
and Mill.
2. Respondent's operation consists in drilling and blasting
solid rock from the quarry, crushing it into different sizes for sale
to customers as agricultural lime, as a base for concrete or blacktop
and for other uses. The process of making agricultural lime involves
pulverizing the limestone and bagging it. The employees involved in
this process are exposed to silica dust.
3. Respondent employs between 21 and 28 workers. Its operation
extends over approximately 90 acres of land. The quarry has been
operating since 1870 and has an expected future life of more than
10 years. It is one of the largest quarrying operations in the State
of Wisconsin. However, in comparison with mining operations throughout the country, Respondent is not a large operator.
4. State and Federal safety inspectors have regularly inspected
Respondent's facililty since prior to 1967.
5. Inspector Walter Brey began inspecting Respondent's facility
in 1974; he visited the premises on an average of three times per year
prior to July 10, 1978.
6. From April 25 through April 27, Inspector Brey conducted a
regular health and safety inspection at Respondent's facility.
Twenty five citations were written charging violations of mandatory
sasfety standards. Twenty one were terminated by April 27.
7. Inspector Brey returned to the facility in May and again on
July 10, 1978, to check on the unabated citations.

8. The purpose of the visit on July 10, 1978, was to do a
resurvey of dust exposure in the AgLime building.
9. Respondent has had a problem of employee explosure to silica
dust 1n its Aglime plant.

10. On July 10, 1978, Respondent's president, Douglas Dewey,
informed the inspector that he would no longer be allowed to inspect
the premises without a search warrant. This took place following
Respondent's receipt of an assessment order imposing penalties for

514

the alleged violations found during the April inspection. A search
warrant had not been demanded of either Federal or State inspectors
prior to this time.
11. On July 10, 1978, Inspector Brey issued a citation charging
Respondent with a violation of section 103( a) of the Act for refusal
to allow an authorized representative of the Secretary to conduct an
inspection of the mine premises.
CONCLUSIONS OF LAW
IS A STONE QUARRY A "MINE" AS THAT TERM IS DEFINED IN THE ACT?
The Act defines a "mine" to include an area of land from which
minerals are extracted in nonliquid form. Respondent's facility is
an area of land from which it extracts limestone and processes it.
"Limestone" has been defined as "a sedimentary rock containing calcium carbonate (calcite), or calcium magnesium carbonate (dolomite),
or any combination of these two carbonates at least to the extent of
50 percent of the rock." 1/ "Mineral" has been defined as "an
inorganic substance occurring in nature, though not necessarily of
inorganic origin, which has (1) a definite chemical composition or,
more commonly, a characteristic range of chemical composition, and
(2) distinctive physical properties or molecular structure" and as
including "every inorganic substance that can be extracted from the
earth for profit whether it be solid, such as rock, fireclay, the
various metals, and coal, or fluid, such as mineral waters, petroleum, and gas." 2/ The Senate Labor Committee Report on S.717,
which was the basis for the 1977 Act, states that:
[I]t is the Committee's intention that what is considered
to be a mine and to be regulated under this Act be given
the broadest possibly [sic] interpretation, and it is the
intent of this Committee that doubts be resolved in favor
of inclusion of a facility within the coverage of the
Act. [1_/]
The Federal Metal and Nonmetallic Mine Safety Act, P.L. 89-577 (1966),
repealed P.L. 95-164 (1977), defined the term "mine" in much the same
way except for the exclusion of coal. The Senate Committee Report
on the 1966 Act stated that a "mine" is "an area of land from which
1/ A Dictionary of Mining, Mineral and Related Terms (Paul W. Thrush,
comp.) (1968), p. 643.
~Id., p. 710.
3/ S:- Rep. ·No. 95-181, 95th Cong., 1st Sess., 14 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of 1977
at 602.

515

minerals (minerals include sand, gravel, crushed stone, quartz, etc.)
other than coal or lignite are extracted in nonliquid form."!!:_/
State 5/ and Federal 6/ courts have included limestone quarries
within the definition of "mine."
The parties have stipulated that Respondent's operations affect
interstate commerce.
It is clear, therefore, and I conclude, that Respondent i-s the
operator of a mine and is subject to the provisions of the Mine
Safety and Health Act of 1977.
DOES THE ACT DIRECT NONCONSENSUAL WARRANTLESS INSPECTIONS OF MINES?
Section 103(a) of the Act requires ("Authorized representatives
I t prohibits giving
"advance notice of an inspection" and thus necessarily prohibits
obtaining the operator's consent. It does not specifically address
the question whether a search warrant is required, but since the
authorized representatives "shall have a right of entry to, upon, or
through any coal or other mine," it is clear that a warrant is not
required. The Senate Commmittee Report on S.717 states that the
above language ''is intended to be an absolute right of entry without
need to obtain a warrant." 7/

* * * shall make") frequent inspections of mines.

I conclude, therefore, that section 103(a) of the Act directs
nonconsensual warrantless inspections of mines.
DOES THE COMMISSION HAVE JURISDICTION TO RULE ON A CONSTITUTIONAL
CHALLENGE TO SECTION 103(a) OF THE ACT?
Respondent argues that if section 103(a) is interpreted to
require or permit inspections without a search warrant, it would
violate the fourth amendment's proscription against unreasonable
searches and seizures. As a general proposition, an administrative
agency does not have power to rule on constitutional challenges to
the organic statute of the agency. Weinberger v. Salfi, 422 U.S.
749 (1975); Johnson v. Robison, 415 U.S. 361 (1974); Public Utility
Commission v. United States, 355 U.S. 534 (1958); Spregel, Inc. v.
FTC, 540 F.2d 287 (7th Cir. 1976).
However, it is the responsibility of an administrative agency to
determine whether
provision of the statute it administers may

a

4/ S. Rep. No. 1296, 89th Cong., 2d Sess., (1966), 1966 U.S. Code
Cong. and Adm. News, p. 2846.
5/ Lamb~rt v. Pritchett, 284 S.W.2d 90 (Ky. 1955).
6/ Marshall v. Texoline Co., Civ. Action CA 4-78-49 (N.D. Texas 1979).
I_/ S. Rep. No. 95-181, supra, note 3 at 615.

516

constitutionally be applied to facts found by the agency. Construction
of its qrganic statute is peculiarly the duty of the agency, and a
cardinal rule of construction requires that if possible, a statute
be construed to avoid conflict with the Constitution. NLRB v. Mansion
Home Center Management Corp., 473 F.2d 471 (8th Cir. 1973).
For these reasons, I will address the constitutional issues
raised by Respondent. There is a strong presumption in favor of the
constitutionality of an act of Congress. Lockport v. Citizens for
Community Action, 430 U.S. 259 (1977); FHA v. The Darlington, 358 U.S.
84 (1958). _In Marshall v. Barlows, Inc-:-:-436 U.S. 307 (1978), the
Supreme Court held that section 8(a) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 657(a), was unconstitutional insofar
as it purported to authorize inspections without warrant. However,
the Court expressly exempted: "[C]ertain industries (which) have
such a history of government oversight that no reasonable expectation
of privacy could exist for the proprietor over the stock of such an
enterprise. Liquor (Colonade) and firearms (Biswell) are industries
of this type." 436 U.S. 313.
Replying to the Secretary's argument that requiring warrants for
OSHA inspectors would overturn warrantless inspections in other
statutes, the Court said:
The reasonableness of a warrantless search, however,
will depend upon the specific enforcement needs and privacy
guarantees of each statute. Some of the statutes cited
apply only to a single industry, where regulation might
already be so pervasive that a Colonnade-Biswell exception
to the warrant requirement could apply.
With respect to coal mines, it has been held that warrantless
searches authorized by the Federal Coal Mine Health and Safety Act
did not contravene the fourth amendment. Youghiogheny & Ohio Coal
Company v. Morton, 364 F. Supp. 45 (S.D. Ohio, 1973); accord, United
States v. Consolidation Coal Company, 560 F.2d 214 (6th Cir. 1977),
vacated and remanded, 436 U.S. 942, 98 s. Ct. 2481 (1978), reinstated, 579 F.2d 1011 (1978). Congress has determined that the
mining industry historically and inherently has posed grave threats
to the health and safety of those employed in it. It is a closelyregulated industry, and both coal and metal/nonmetallic mines have
been subjected to Federal warrantless inspections for many years.
In the Senate Report on the 1966 Federal Metal and Nonmetallic
Safety Act, 30 U.S.C. § 721, it is stated that "the number and
severity of the injuries experienced each year by persons employed
in the extractive industries should be alarming to an America that
prides itself on its * * * concern for the welfare of its citizens." 8/
Quot~d in S. Rep. No. 95-181, 95th Cong., 1st Sess., 3 (1977),
reprinted in Legislative History of the Federal Mine Safety and Health
Act of 1977 at 591.

§_f

517

I conclude that the mining industry, including stone quarrying,
is a pervasively regulated industry and that warrantless nonconsenual
inspections are mandated by the Act and do not constitute unreasonable searches prohibited by the fourth amendment to the Constitution.
DOES REFUSAL TO ADMIT AN INSPECTOR CONSTITUTE A VIOLATION OF THE ACT
FOR WHICH A PENALTY MAY BE IMPOSED?
Section 103(a) authorizes inspections of mines. "Authorized
representatives of the Secretary of Health, Education, and Welfare
shall make frequent inspections and investigations * * * (and) shall
have (a) right of entry to, upon, or through any coal or other mine."
Section 104(a) allows an inspector to issue a citation to an
operator who has violated the Act:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator of
a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule,
order or regulation promulgated pursuant to this Act, he
shall, with reasonable promptness issue a citation to the
operator * * *·
Likewise, section llO(a) states that an "operator of a coal mine
in which a violation occurs of a mandatory health or safety standard
or who violates any other provision of this Act, shall be assessed a
civil penalty by the Secretary * * *·"
Therefore, I conclude that refusal to admit an inspector constitutes a violation for which civil penalties may be assessed.
PENALTY
Section llO(i) of the Act directs that in assessing a penalty, I
consider six criteria: the operator's history of previous violations,
the size of the business of the operator, whether the operator was
n~gligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith
of the operator in attempting to achieve rapid compliance. There is
no evidence concerning the operator's history of previous violations
except the testimony that 25 citations were issued from April 25
through April 27, 1978. I do not consider that this history is such
that penalties should be increased because of it. The operator's
business is moderate in size. There is no evidence that penalties
will have any effect on the operator's ability to continue in business and th~refore, I conclude that they will not.
The.violation was intentional. Respondent argues that it relied
in good faith on what it conceived to be the protection of the fourth

518

amendment and that this fact should mitigate the amount of the penalty. However, the evidence shows that warrantless inspections authorized by the Metal and Monmetallic Safety Act have been conducted on
Respondent's premises since at least 1967. The reliance on the fourth
amendment was precipitated, not by a desire for privacy, but because
penalties were assessed for alleged safety violations. I reject the
argument for mitigation, and conclude that insofar as the negligence
criterion is concerned, the penalty should be increased because the
violation was intentional and thus the equivalent of gross negligence.
I conclude that the violation was serious. The inspector was in
the course of a dust survey of Respondent's operation. There was an
admitted problem of silica dust in its AgLime plant. Exposure to
excessive concentrations of silica dust could result in silicosis, a
serious debilitating disease. Twenty five citations were issued during the course of a 2-day inspection in April. Refusal to admit an
inspector could result in a lessening of health and safety consciousness and indirectly could cause illness or injury to Respondent's
employees. Respondent has not demonstrated good faith in attempting
to achieve rapid compliance, since it is not making any attempt to
comply.
Based on the testimony and other evidence introduced at the hearing and on the contentions of the parties, and considering the cricteria in section llO(i) of the Act, I conclude that a penalty of
$1,000 should be imposed for the violation found.
ORDER
Therefore, Respondent is ORDERED to pay the sum of $1,000 within
30 days of the date of this decision as a civil penalty for a violation of section 103(a) of the Act.

J

c?/f/H£-5

.k !3vockn~

James A. Broderick
Chief Administrative Law Judge

Distribution:
Eddie Jenkins, Esq., Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203
Muller and Niebler, Esqs., S.C., Attorneys for Respondent,
611 North Broadway Street, Milwaukee, WI 53202 (Certified Mail)

519

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

June 5, 1979

Civil Penalty Proceeding

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

Docket No. PITT 79-157-P
A/O No. 36-00803-03003

v.
Oakmont Mine
HARMAR" COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
The Solicitor has filed a motion to approve a settlement in the
above-captioned action. This case has one violation. The violation
was for section 75.1714-2(b) on the ground that a miner was found
working without his self rescuer device. The Solicitor advises that
the miner left his self rescuer approximately 125 feet away from the
immediate area in which he was working and that the miner stated that
he had forgotten to take it with him. The amount originally assessed
was $98. The Solicitor recommends a reduction to $44 on the ground
that the operator was not negligent.
I accept the Solicitor's representations. Under the circumstances
I find the operator was not negligent. Although q penalty must be

assessed because a violation occurred the absence of negligence is
relevant in determining the appropriate penalty assessment. I note
that in Docket No. PITT 79-120-P I approved a settlement of $72 for a
violation of the same mandatory standard where the operator was not
negligent. The difference in the penalty amount is justified by a
difference in gravity. My review of the citations in both cases
indicates that the miner in this case was in a less dangerous location.
It should not, however, be necessary for me to independently review the
citations to find reasons to support the Solicitor's r~commended .
settlements. The Solicitor himself should furnish ~he requisite data.

520

ORDER
The operator is ORDERED to pay $44 within 30 days from the date
of this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Issued:

June 5, 1979

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

521

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

June 7, 1979

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

Civil Penalty Proceedings
Docket No, DENV 79-62-PM
A,C, No, 10-00310-05001

v,

Coeur D'Alene Pitt & Plant
CENTRAL PREMIX CONCRETE COMPANY,
Docket No, DENV 79-126-PM
A,C, No, 45-00995-05002
Responde.nt
Yakima Pit & Plant
DECISION
Appe.1rances:

Marshall Salzman, Esq,, Office of the Solicitor,
U,S, Department of Labor, for Petitioner;
R. M, Rawlines, Central Pre-Mix Concrete Co,,
Spokane, Washington, for Respondent,

Before:

Judge Chares C, Moore, Jr.

At the beginning of the hearing in Spokane, Washington, Respondent announced that he was withdrawing his notice of contest in DENV
79-126-PM and that he had already sent his check in the amount of
the proposed assessment to the assessment officer, It was explained
to him that the course of action which he followed was inappropriate
in a case where a complaint had been filed, In view of his obvious
misunderstanding and the fact that the attorney for the Government had
no objection, it was agreed that this be considered a settlement and that
judgment would be entered for the amount of the original proposed
assessment,
Docket No. DENV 79-62-PM involves two citations, 347017, alleging
that an unguarded conveyor with a walkway was not equipped with an
emergency stop cord and Citation 347018, alleging that the electric
motor on the head pulley of a conveyor did not contain a cover plate
over the electrical connections,

As to the first alleged violation, the standard 30 CFR 56,9-7,
requires that unguarded conveyors with walkways contain an emergency
stop cord, There is no dispute about the facts, There ·was a conveyor
that was unguarded and there was no stop cord •. There was what could
be considered a walkway but it contained a chain across the entrance

522

and a sign saying "Do not enter while operating .. " It was the contention of Respondent that the chain and sign constituted a guard because
no one was allowed in the area while the conveyor was operating.. I
think it more reasonable, however, to consider the chain and sign not
as a guard for the conveyor, but as factors which prevent the chainedoff area from being a walkway.. And if there is no walkway, there is
no requirement of a stop cord and therefore, no violation.. The citation is accordingly VACATED.
As to Citation No .. 347018, alleging a violation of 30 CFR
56 .. 12-32, there is no question that the violation occurred.. Respondent's only defense was that it contracted out its electrical work
and that the independent contractor must have left the electrical
cover plate off .. While that may.be a mitigating circumstances, it
is certainly no defense to the charge.. In view of the stipulations
regarding four of the six statutory criteria, and the fact that
there was good faith abatement and little negligence on Respondent's
part, I assess a penalty of $30 for the violation found ..
ORDER
It is therefore ORDERED that Respondent pay to MSHA a civil penalty in the total sum of $56 within 30 days of the entry of this order.

~ (>.?J?~;J·

Charles C.. Moore, Jr ..
Administrative Law Judge
Issued:

June 7, 1979

Distribution:
Marshall P .. Salzman, Esq .. , Office of the Solicitor, u. s ..
Department of Labor, 450 Golden Gate Avenue, Box 36017,
Room 10404, Federal Bldg .. , San Francisco, CA 94102
(Certified Mail)
R.. M.. Rawlings, Loss Control Director, Central Pre-Mix Concrete
Company, 805 North Division, f .. O.. Box 3366TA, Spokane, WA
99220 (Certified Mail)
Administrator for Metal & Non-Metal, Mine Safety and Health,
U.. S .. Department of Labor
Standard Distribution

523

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

June 7, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v ..

Civil Penalty Proceeding
Docket No, DENV 79-68-IM
A,C, No, ~5-00432-05001
St, Helens Quarry

DWIGHT IRBY CONSTRUCTION CO,,
Respondent
DECISION
Appearances:

Marshall Salz~an, Esq,, Office of the Solicitor,
U.. S, Department of Labor, for Petitioner;
Dwight Irby, pro se, St, Helens, Oregon.

Before:

Judge Charles C•. Moore, Jr.

By a complaint filed on November 20, 1978, Respondent was charged
with four violations of the Act and regulations, The complaint was
based on Citation No, 345421, charging that a jaw crusher fly wheel
was not properly guarded, Citation No, 345422, charging that the small
elevated deck of the jaw crusher fly wheel was not provided with a
railing, Citation No, 345423, charging that compressed oxygen was
stored with oil and grease, and Citation No, 345424, charging that
the ramp leading to the feed hopper was not provided with berms,
The mine in question is a relatively small mine working only
slightly more than 1,400 manhours per year, Respondent's Exhibit
Nos, 1-6 are photographs of the mine depicting various aspects and
showing just about the entire mine, Solid basalt is mined by shooting explosives, and then crushi~g and grading the debris into various
sizes of gravel and stone.. The tlormal method of shooting at this
u:in~ was by drilling what are termed "coyote holes" and implanting
the explosives therein, A coyote hole is made by drilling a hole big
enough for a man to enter at right angles to the face of the basalt
for a certain distance, then drilling two other holes at right angles
to the first hole for implanting the explosives, The top view of the
coyo.te hole would be in the shape of a "T," but the dimensions of the
various arms are not brought out in the testimony.. Respondent did
try other methods of blasting, but testified that coyote holes were
much cheaper, */

*/ Respondent actually did no blasting himself, but contracted the
work out to an independent blaster.

524

While coyote holes are not prohibited by the Act and regulations, a number of miners consider them as a hazardous method of
operation and the evidence indicates that Inspector Tallmadge, who
issued all of the citations involved in this case, attempted to
discourage Respondent from using coyote holes. Respondent is of the
opinion that he was harassed by the inspector because of his use of
the coyote holes. It was his statement that if an inspector gets
down on you, he can always find something to cite you for, and while
I am inclined.to agree with the latter statement as a general proposition, if the inspector in this case had been carrying out a
personal vendetta against Respondent, I am sure he would have found
more than four violations.
The first two citations mentioned above, involve the area of the
jaw crusher. The jaw crusher is basically two pieces of large tlat
steel which come together periodically as the blasted basalt is fed
in from a hopper. The engine which powers the jaw crusher in this
mine is mounted on metal framework which is about 2 feet above ground
level. The engine contains a fly wheel and the outer part, that is
the part away from the engine~ was guarded, but there was no guard,
according to the inspector's testimony, on the inner side of the fly
wheel. It was his opinion that because of a V-belt driving the fly
wheel a pinch point existed. I can accept the inspector's testimony
regarding the pinch point, a point where a serious injury could occur
if a miner were to be caught either by his hand or a piece of his
clothing, but I cannot accept his opinion that the pinch point in
this case was sufficiently accessible to constitute a violation of
the standard. It was surrounded by 2-foot high framework. In order
to get caught in this pinch point, a miner would have to climb
through the framework. This would be a more difficult task than
merely removing the guard, which Respondent placed on the inner side
of the fly wheel in order to abate the citation. The framework
itself was a guard and while the guard could be evaded, it could not
be evaded so easily as the simple fly wheel guard which the inspector
required. I find there was no violation of the standard.
I also find that the top of the framework was not a platform
requiring a guard rail as charged in Citation No. 345422. Respondent's employee Mr. Cecil had thrown some screening over the framework and stored some material there just to get it out of the way.
Inspector Talmadge considered the framework with some material on top
of it, perhaps some boards which he remembered, as a walkway. The
"platform," however, was 2 feet high and had no steps leading to it.
It would certainly have been difficult to step onto a platform
2 feet high and in my opinion, it was not a work platform. There
would have been no purpose in having a work platform in the area
since a platform of that height would have made working on the equipment more difficult rather than easier. I find there was no platform
and that the guard rail required by the inspector was not necessary.

525

Citation No, 345423 charges that compressed oxygen and acetylene
cylinders were stored with oil and grease, The inspector issued the
citation because he saw the oxygen and acetylene tanks in the back
of a shed and saw oil and grease cans in the same shed, There was
also a large grease gun which may or may not have contained grease at
the time the inspector saw it, and it may have been sitting just
inside the door or just outside the door of the shed, Testimony
brought out by Respondent himself established that the grease gun was
kept outside of the shed during working hours but was placed inside
for overnight storage, Since the grease gun contained grease,
oxygen and grease were stored together, but the inspector did not
issue his citation on the basis of the grease gun, He issued it
because of the cans he saw in the shed labeled "Grease," Respondent's
witnesses, however, clearly established that the grease cans were
used to store nuts and bolts and other odds and ends and that they
did not, in fact, contain any grease, I will not rule on the question
of whether overnight storage of the grease gun itself in the same shed
with the oxygen is a violation, but I do rule in Respondent's favor
insofar as the specific charges in this case are concerned, I find
the various cans labeled "Grease" did not contain grease and that
therefore, the citation was improperly issued,
Citation No, 345424 charges that the ramp leading to the feed
hopper was not provided with a berm or other protective barrier, In
Cleveland Cliffs Iron Company v, MSHA, Docket No, VINC 78-300-M,
issued on September 8, 1978, I stated at page 3: "Inasmuch as it is
the elevation which creates the hazard that berms are designed to
alleviate, the intent of the regulation must be to require those
berms wherever there is a hazard created by the elevation,"
In the case quoted above, the road was elevated approximately
40 feet above the surrounding terrain and the banks were at an angle
of approximately 60 degrees from the horizontal, In my opinion,
that elevated roadway presented a clear hazard, In the instant
case, the roadway is 12 feet long, 9 or 10 feet wide and the elevation varies from 0 at the beginning up to 4 feet at the hopper, The
articulated front-end loader that operates on this ramp is itself
10 feet long, If therefore, the front-end loader is as close to the
hopper as it can get, the back wheels would only be 2 feet onto the
ramp and almost on level ground, In my opinion, this is not a type
of elevated roadway which is sufficiently hazardous to require berms,
In fact, the berms which were built in order to abate the citation
may have created a hazardous condition themselves,
'

526

ORDER
It is therefore ORDERED that all four citations involved in this
case be VACATED and that the case be, and it hereby is, DISMISSED.

~e~~~

Charles C. Moore, Jr.
Administrative Law Judge
Entered: June 7, 1979
Distribution:

Marshall Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 450 Golden Gate Avenue, Box 36017,
Room 10404, Federal Bldg., San Francisco, CA 94102
(Certified Mail)
Dwight W. Irby, Dwight W. Irby Construction Co., Route 5,
Box 5542, St. Helens, OR 97041 (Certified Mail)
Administrator for Metal & Non-Metal, Mine Safety and Health,
U.S. Department of Labor,
Standard Distribution

527

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

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

Civil Penalty Proceeding
Docket No. VINC 79-118-PM
A.O. No. 47-00218-05001
Lannon Quarry and Mill

HALQUIST STONE COMPANY,
Res·pondent
DECISION
Appearances:

Eddie Jenkins, Esq., Office oZ the Solicitor, United
States Department of Labor, for Petitioner;
Paul Binzak, Esq., Kraemer: and Binzak, Menomonee Falls,
Wisconsin, for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
This proceeding was commenced by the filing of a petition for the
assessment of a civil penalty charging that Respondent violated section 103(a) of the Mine Safety and Health Act of 1977, ·30 U.S.C.
§ 813(a), by refusing to permit a duly authorized representative of
the Secretary to inspect Respondent's facility.
Pursuant to notice, the case was called for hearing on the merits
on April 23, 1979, in Milwaukee, Wisconsin. Walter C. Brey, a Federal mine inspector, testified on behalf of Petitioner. No witnesses
were called by Respondent. At the conclusion of the hearing, counsel
orally stated their respective positions on the issues presented, and
each waived his right to file written proposed findings and conclusions. All proposed findings and conclusions not incorporated herein
are rejected.
STATUTORY PROVISIONS
Section 103(a) of the Act provides, in part:
Authorized representatives of the Secretary·*** shall
make frequent inspections and investigations in coal or

528

other mines each year for the purpose of (1) obtaining,
utilizing and disseminating information relating to health
and safety conditions, the causes of accidents, and the
causes of diseases and physical impairments originating in
such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether
an imminent danger exists, and (4) determining whether there
is compliance with the mandatory health or safety standards
or with anay citation, order, or decision issued under this
title or other requirements of this Act. In carrying out
the requirements of this subsection, no advance notice of
an inspection shall be provided***·

*

*

*

*

*

*

*

ISSUES
1. Does the Federal Mine Safety and Health Act of 1977 require
or permit nonconsensual inspections of mine facilities without valid
search warrants?
2. Did Respondent on June 1, 1978, refuse a Federal mine inspector access to its mine premises?
3. If a violation of the Act has been established, what is the
appropriate penalty?
FINDINGS OF FACT
On the basis of the pleadings, stipulations of the parties, the
testimony and other evidence introduced at the hearing, I make the
following findings of fact:
1. On June 1, 1978, Respondent was the operator of a stone
quarry located in Waukesha County, Wisconsin, known as the Lannon
Quarry and Mill.
2. Respondent's operation includes a large pit area where stone
is extracted by blasting and crushed to different sizes. It also
includes a stone cutting operation where building stone is jarred
loose from the earth by black powder, extracted with a fork lift and
cut into different sizes.
3. Respondent employed approximately four men in its quarry
operation and approximately seven or eight in its stone cutting
operation.
4. Respondent's operation has been visited by Federal inspectors since at least 1974, on an average of three times a year.

529

5. On May 31, 1978, Federal mine inspector Walter C. Brey began
a safety and health inspection of Respondent's Lannon Quarry. Three
citations were issued on that date as the safety part of the inspection was completed.
6. On June 1, 1978, Inspector Brey returned to Respondent's
quarry to complete the health part of the inspection. He placed
dosimeters to measure noise exposure and respirable pumps to measure
dust exposure on selected employees.
7. Approximately 2 hours after the inspection began on June 1,
1978, Mr. Bud Halquist, who was in charge of the limestone operations
for Respondent, approached the inspector and told him that he was
harrassing Respondent and would not be allowed to remain on Respondent's property unless he got a search warrant. The inspector picked
up his health equipment and left the property.
8. On June 1, 1978, at about 10:05 a.m., Inspector Brey issued
a citation alleging a violation of section 103(a) of the Act for
deni~l of right of entry and served it on Respondent.
9. I find as a fact that Respondent refused to permit the continuation of a health and safety inspection of its mining facility
by an authorized representative of the Secretary on June 1, 1978.
CONCLUSIONS OF LAW
DOES THE ACT DIRECT NONCONSENSUAL, WARRANTLESS INSPECTIONS OF MINES?
Section 103(a) of the Act requires ("Authorized representatives
It prohibits giving
0
advance notice of an inspection" and thus necessarily prohibits
obtaining the operator's consent. It does not specifically address
the question whether a search warrant is required, but since the
authorized representatives "shall have a right of entry to, upon, or
through any coal or other mine," it is clear that a warrant is not
required. The Senate Committee Report on S.717 states that the
above language "is intended to be an absolute right of entry without
need to obtain a warrant." 1/

* * * shall make") frequent inspections of mines.

I conclude, therefore, that section 103(a) of the Act directs
nonconsensual, warrantless inspections of mines.
Respondent has conceded, and I conclude that its stone quarry is
a mine as that term is defined in the Act.
1/ s. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of 1977
at 615.

530

DOES THE.COMMISSION HAVE JURISDICTION TO RULE ON A CONSTITUTIONAL
CHALLENGE TO SECTION 103(a) OF THE ACT?
In the decision I issued on June 5, 1979, in the case of
Secretary v. Waukesha Lime & Stone Company, Inc., Docket No. VINC
79-66-PM, I discussed the constitutional issue raised here 1 recognizing that an administrative agency does not have the power to rule
on a constitutional challenge to the organic statute of the agency.
However, it is the responsibility of an administrative agency
to determine whether a provision of the statute it administers may
constitutionally be applied to facts found by the agency. Construction of its organic statute is peculiarly the duty of the agency, and
a cardinal rule of construction requires that if possible, a statute
be construed to avoid conflict with the Constitution. NLRB v. Mansion
Home Center Management Corp., 473 F.2d 471 (8th Cir. 1973).
I concluded in Waukesha, and conclude here, that the mining
industry, including stone quarrying operations, is a pervasively
regulated industry, that warrantless, nonconsensual inspections are
mandated by the Act and do not constitute unreasonable searches
under the fourth amendment.
DOES REFUSAL TO ADMIT AN INSPECTOR CONSTITUTE A VIOLATION OF THE ACT
FOR WHICH A PENALTY MAY BE IMPOSED?
In the Waukesha decision, supra, I concluded that refusal to
permit an authorized representative of the Secretary _to conduct an
inspection of a mining facility constitutes a violation of the Act
for which a civil penalty may be assessed. I reiterate that conclusion in this case.
PENALTY
The Act directs that in assessing a penalty, I consider six criteria: the operator's history of previous violations, the size of
the business of the operator, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity
of the violation, and the demonstrated good faith of the operator in
attempting to achieve rapid compliance. There is no evidence concerning the operator's history of previous violations except the testimony
that three citations were issued on May 31, 1978. I do not consider
that this history is such that penalties should be increased because
of it. The operator's business is small in size. There is no evidence that penalties will have any effect on the operator's ability
to continue in business and therefore, I conclude that they will not.
The violation was intentional and thus the equivalent of gross
negligence. I conclude that ·the violation was serious. Refusal to
admit an inspector could result in a lessening of health and safety

531

consciousness and indirectly could cause illness or injury to Respondent's employees. Respondent has not demonstrated good faith in
attempting to achieve rapid compliance, since it has made no effort
to comply.
Based on the testimony and other evidence introduced at the
hearing and on the contentions of the parties, and considering the
criteria in section llO(i) of the Act, I conclude that a penalty of
$700 should be imposed.
ORDER
Wherefore, Respondent is ORDERED to pay the sum of $700 within
30 days of the date of this decision as a civil penalty for a violation of section 103(a) of the Act.

~-~~~~
.

1
c;A-~1-~

James A. Broderick
Chief Administrative Law Judge

)

Distribution:
Eddie Jenkins, Esq., Trial Attorney, Office of the Solicitor,
United States Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Paul Binzak, Esq., Kraemer and Binzak, S.C., North 89,
West 16800, Appleton Avenue, Menomonee Falls, WI 53051
(Certified Mail)

532

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFF1CE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

June 13, 1979
Civil Penalty Proceeding

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

Dolket No. MORG 79-56-P
A/O No. 46-01433-03011
Loveridge Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION f PPROVING SETTLEMENTS
ORDER TO PAY
On June 1, 1979, the SoliLitor filed a motion to approve settlements
in the above-captioned proceeding.
In his motion, the Solicitor advises the following:
1. The attorney for the S£cretary and the respondent's
attorney Michel Nardi have discussed the alleged violations
and the six statutory criteria stated in Section 110 of the
Federal Mine Safety and Health Act of 1977.
2. Pursuant to those discussions, an agreed settlement
has been reached between the parties in the amount of $1,458.
The original assessment for the alleged violations was $2,002.
3. A reduction from the original assessment is warranted
because each of the violations was committed by one of four
independent contractors engaged in construction activities at
the Loveridge Mine and plant area. The contractors are West
Virginia Electric Company, Industrial Contracting, Neely Construction Company and Iron Working Contractors. Accordingly,
the operator's negligence in these circumstances should be
reduced. The proposed settlement amounts have been reached
by reducing negligence points approximately one-half thereby
computing a new total number of points. These points were
converted, by the use of the penalty conversion table, to the
amounts proposed herein as settlement of this claim is as
follows:

533

CITATION
NO.

DATE

STANDARD

ORIGINAL
AMOUNT

PROPOSED
SETTLEMENT

18804
18806
18808
18810
18812
18814
18844
18845
18846
18847
18848
14259
15174

8/10/78
8/10/78
8/10/78
8/10/78
8/10/78
8/10/78
8/8/78
8/8/78
8/8/78
8/8/78
8/8/78
8/9/78
8/29/78

77 .402
77.402
77. 701
77.505
77.516
77.516
77 .204
77.205
l7. 205
77.204
77.1112
77.402
77.410

$140
$180
$130
$130
$130
$170
$170
$160
$160
$160
$122
$180
$170

$106
$130
$98
$98
$98
$130
$114
$114
$106
$114
$90
$130
$130
$1,458

TOTAL

In Secretary of Labor, Mine Safety and Health Administration v.
Republic Steel Corporation (79-4-4) dated April 11, 1979, the Federal
Mine Safety and Health Review Commission held that under the 1969 Act,
the Secretary of Labor could issue citations against the owner of a
coal mine for violations committed by independent contractors. Under
the present Act, an operator is specifically defined to include an
independent contractor as well as the operator. However, I believe
the fact that the independent contractor now is specifically defined
as an operator does not limit the Secretary's discretion with respect
to whom to cite. Chief Judge Broderick reached the same conclusion in
Secretary of Labor, Mine Safety and Health Administration v. Old Ben
Coal Company (VINC 79-119-P) dated April 27, 1979. Accordingly, the
citations against the.operator here are proper. The Commission also
held in Republic that where an enforcement action is undertaken against
the operator, the independent contractor may also be proceeded against
in a separate or consolidated proceeding. I believe the amount of the
penalty properly can take into account the circumstances of the violations.
Chief Judge Broderick also reached the same conclusion in the Old Ben
case cited above. Accordingly, I accept the Solicitor's representations.
ORDER
The operator is ORDERED to pay $1,458 within 30 days from the date
of this decision.

Paul Merlin
Assistant Chief Administrative Law Judge

534

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

June 14~ 1979
Civil Penalty Proceeding

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

Docket No. MORG 79-107-P
A.O. No. 46-02845-03002

v.
Mine No. 1

LAUREL RUN MINING COMPANY,
Respondent

DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSAL
The Laurel Run Mine is not a gassy mine. A methane emission
has, so it is claimed, never been detected. Even so, section
305(a)(3) of the Act, 30 CFR 75.503 requires that "all electric
face equipment" taken into or used inby the last open crosscut
be maintained in a permissible condition. In addition, section
305(g) of the Act, 30 CFR 75.512 requires that "all electric
equipment" whether or not used in the face area be frequently
examined, tested, and properly maintained to assure safe operating
conditions. It seems clear therefore that any violation of
75.503 would be a violation of 75.512. On the other hand, not
every violation of 75.512 is a violation of 75.503.
On April 6, 1978, the safety record at the Laurel Run Mine
led a mine inspector to conclude that because of the "number of
permissibility citations" (75.503) issued at the mine the "program
for proper maintenance of the electrical equipment at the mine was
in need of upgrading". For this reason, he issued a citation charging
a violation of 75.512.
The Solicitor moves to withdraw this charge on the ground that
evidence which shows a pattern of peI111issibility violations does
not properly lie under 75.512. I believe this is correct because:
1.

The citation does not comply with the notice
requi.rements of section 104(e) (1) of the Act, as
amended, 30 U.S.C. § 814(e)(l).

535

2.

The citation does not charge that the pattern of
permissibility violations alleged were of such a
nature as could have significantly and substantially
contributed to the cause and effect of a mine safety
hazard. l/

3.

The Secretary has not issued the rules mandated by
section 104(e)(4) of the Act establishing the criteria
for determining when a pattern violation occurs.

4.

It has been determined that absent the authority conferred by section 104(e) instances of repetitive
violations of the permissibility standard must be
charged individually or not at all. See Alabama ByProducts Corporation v. MSHA, Docket No. BARB 77-73,
Decision of October 13, 1978, Luoma, J. J:./

Accordingly, it is ORDERED that the motion to withdraw Citation
13265 be, and hereby is, GRANTED.
With respect to the two 75.503 violations charged, my
independent evaluation and de novo review of the circumstances lead
me to conclude that the motion to approve settlement of these charges
at the amounts originally assessed, $122.00 each, is in accord with
the purposes and policy of the Act.
Consequently, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED, that respondent pay the
agreed upon penalty of $244.00 on or before Monday, June 25, 1979,
and that subject to payment the capti ed petition be DISMISSED.

Law Jud

!/ This is rather inexplicable since even in the absence of
methane an ignition from a nonpermissible piece of electric face
equipment can cause a mine fire or explosion.
!:_I On November 28, 1978, the Commission vacated its order
docketing this decision for review, thereby allowing it to become
a final decision of the Commission. The Secretary did not seek
review of the decision by the courts. This means that until the
Secretary acts to implement section 104(e) it is, for all practical
purposes, a dead letter and unenforceable.

536

SAF~T'! /~;\!D HE~::~L·r~-; t~~V~E\tV co~~~:~5S5B0f·:J
OfflCE Of ADMINIS7RATIVc LAW JU::>GES
4015 WILSON BOULEVARD
ARLINGTON, VH~G,INIA 22203

JUN 14 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. BARB 78-583-P
A.C. No. 15-09365-02004
No. 1 Surface ~i~e

CREEK.VIEW COAL CORPORATION,
Respondent
DECISION
Appearances:

Marvin Tincher, Esq., Office of the Solicitor. U.S.
Department of Labor, for Petitioner,
Tallie Young, President, Creekview Coal Corporation,
for Respondent.

Before:

Judge Lasher

This proceeding arose under section 109 of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970). Pursuant to section 30l(c) (3) of the Federal Mine Safety and Health Act of
1977, proceedings pending at the time such Act takes effect shall be
continued before the Federal Mine Safety and Health Review Commission.
A hearing on the merits was held in Lexington, Kentucky, on
May 21, 1979. After considering evidence submitted by both parties,
and argument, I entered a detailed oral opinion on the record at the
close of the hearing. It was found that the six violations charged
did occur. It was further determined that a penalty otherwise warranted by consideration of the various penalty assessment criteria
provided by statute would have no adverse affect on Respondent •"s
ability to continue in business. Respondent was assessed penalties
totaling $356.
Respondent is ordered to pay the penalties assessed of $356
within 30 days from the date of this decision.

#;;~da//!";4,e~if--

Michael A. Lasher, Jr., Judge

Distribution:
Marvin Tincher, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Tallie Young, President, Creekview Coal Corporation, P.O.
Box 7240; Lexington, KY 40502 (Certified Mail)

537

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

CONSOLIDATION COAL COHPANY,
Applicant

Application for Review
Docket No. PITT 79-168

v.

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

Order No. 231633
January 26, 1979
Westland Mine

UNITED.MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

James T. Hemphill, Jr., Esq., Rose, Schmidt, Dixon,
Hasley, Whyte & Hardesty, Washington, D.C., for
Applicant;
Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Respondent MSHA.

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 105(d) of the Federal
Mine Safety and Health Act of 1977 by Consolidation Coal Company for
review of an order of withdrawal issued by an inspector of the Mine
Safety and Health Administratjon (MSHA) under section 104(d) (2) of
the Act.
Pursuant to a notice of hearing issued April 6, 1979, this case
was set for hearing on June 5, 1979, in Pittsburgh, Pennsylvania. The
hearing was held as scheduled. The operator and MSHA appeared and
presented evidence (Tr. 5-55). At the conclusion of the taking of
evidence, the parties waived the filing of written briefs, agreed to
have a decision rendered from the bench, and set forth their positions
in oral argument.
Bench Decision
The decision rendered from the bench is as follows:

538

This case is an application for review of an order
issued under section 104(d)(2) of the Act.
The order recites that in violation of section
75.1707 air was escaping from the track haulageway to
the intake escapeway through thre-e man doors and
through a hole in a permanent stopping, which hole had
been covered with a brattice cloth.
After the testimony of the inspector, the Solicitor
moved to have the order vacated with respect to the three
man doors on the grounds that the inspector's own statements made a finding of unwarrantable failure impossible.
The Solicitor's motion was well taken under the circumstances and from the bench the order was vacated in part
in accordance with the motion.
This leaves for consideration the air which was
coming through the hole in the damaged stopping from
the track haulageway to the intake escapeway. The
operator's inspector~escort agreed with the inspector
that air was coming through the hole from the track
haulageway to the intake escapeway. Accordingly, the
existence of a violation under section 75.1707 is
undisputed and I find it existed as alleged.
There remains for consideration unwarrantable
failure with respect to this aspect of the order. It
appears that the hole in the stopping had been caused
by a roof fall on the track haulage side of the stopping. Falling material apparently knocked out some
of the blocks in the stopping. The inspector believes
the operator was guilty of unwarrantable failure
because the debris from the fall was covered with some
rock dust. The area had been rock dusted on January 20,
and the intake escapeway had been subject to its w~ekly
examination on January 22. Accordingly, the inspector
believed that the hole already existed before rock
dusting had been done on January 20 and therefore
before the fire boss examination on January 22. The
order was, of course, issued on January 26. The
inspector testified he had been told by a man in the
mine that the hole had been there on January 22, but
the inspector did not take the man's name and does not
know who he is.
Contrary to the inspector's testimony is the
testimony of the fire boss, a union member, who
stated that when he saw the stopping on January 22
during his fire boss run there was nothing-wrong

539

with it, and that no brattice curtain was even there
at that time. After due consideration, I accept the
testimony of the fire boss. The testimony of the
fire boss/is especially persuasive because as the
mine map demonstrates, his route of travel inby
meant that he was directly facing the stopping in
question .. Indeed, he could not miss it. I found
him a credible witness. Accordingly, I must reject
the inspector's inference that the hole existed as
far back as January 20 and January 22.
Insofar as the record before me is concerned, the
inspector's finding of unwarrantable failure is based
solely upon his conclusion that the fire boss either
missed or failed to report the stopping which was
already damaged. This is a conclusion I do not accept.
I have not overlooked the inspector's reliance upon the
presence of roe~ dust on the fallen debris. However,
the direct testimony of the fire boss is simply more
persuasive to me than the inferences to be drawn from
the presence of rock dust.
Whether the brattice cloth was put up at some
undefined later time after January 22 is not before me.
The Solicitor has presented no evidence for such a
theory to support a finding of unwarrantable failure.
The inspector's opinion was not asked about this
issue. I can only decide this. case on the evidence
presented, and I cannot supply evidentiary gaps.
Here the most probative evidence before me
demonstrates that the inspector'~ theory of unwarrantable failure, however well-intentioned, cannot
be sustained.
The order 1s therefore vacated, and the application for review is granted.
I express my appreciation to both counsel for a
very helpful oral argument.

540

ORDER
The bench decision is hereby AFFIR.t"vIED. Accordingly, it is
ORDERED that Order No. 231633 be VACATED and that the operator's

application for review ~T\:·::>

~

Pa~

Assistant Chief Administrative Law Judge
Issued:

June 15, 1979

Distribution:
James T. Hemphill, Jr., Esq., Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty, 818 Connecticut Ave., NW., Washington, DC
20006 (Certified Mail)
Karl T. Skrypak, Esq., and Michel Nardi, Esq., Consolidation
Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., Office of
the Solicitor, U.S. Department of Labor, Room 14480-Gateway
Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)
Administrator, Coal Mine Safety and Health, U.S. Department of
Labor
Standard Distribution

541

FEDERAL MINE SAFETY AND HEAtTH REVIE\\# COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

CONSOLIDATION COAL COMPANY,
Applicant

Application for Review

v.

Docket No. MORG 79-70

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

Order No. 012744
December 28, 1978
Shoemaker Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

James T·. Hemphill, Jr , Esq., Rose, Schmidt, Dixon,
Hasley, Whyte & Hardesty, Washington, D.C., for
Applicant;
Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq.,
Office of the Solicitor, Department of Labor,
Philadelphia, Pennsylvania, for Respondent MSHA.

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 105(d) of the Federal
Mine Safety and Health Act of 1977 by Consolidation Coal Company for
review of an order of withdrawal issued by an inspector of the Mine
Safety and Health Administration (MSHA) under section 104(d)(2) of
the _Act.
Pursuant to a notice of hearing issued April 6, 1979, this case
was set for hearing on June 5, 1979, in Pittsburgh, Pennsylvania. The
hearing was held as scheduled. The operator and MSHA appeared and
presented evidence (Tr. 5-46). At the conclusion of the taking of
evidence, the parties waived the filing of written briefs, agreed to
have a decision rendered from the bench, and set forth their positions
in oral argument.
Bench Decision
The decision rendered from the bench 1s as follows:

542

This case is an application. for review of an order
issued under section 104(d)(2) of the Act. The parties
agree that the issues are (1) the existence of a violation and, (2) unwarrantable failure.
The order recites that the distances between the
nearest roof bolt and the three corners in question
exceeded the 5 feet specified by the roof control plan.
The inspector's testimony concerning his measurements of
these distances and his conclusion regarding a violation
of page 12 of the roof control plan are undisputed. i
accept this evidence and based upon it I find a violation of section 75.200. Counsel for the operator du~ing
oral argument conceded the existence of a violation.
The inspector also testified that these excess distances existed for several days, during which the area
in question had been idle but had been preshifted. The
inspector's conclusions in this respect were based upon
the appearances of the area, consisting of footprints
and rock dust. The inspector also relied upon the
presence of many dates left by preshift examiners during
the several days in question. This testimony also is
undisputed, and I accept it. The fact that the cited
violations existed for several days justifies the inference, without more, that the operator knew or should
have known about the violation. I hold that this alone
constitutes unwarrantable failure.
I note that during oral argument counsel for the
operator conceded that the operator should have known
about the existence of the violation. However, I
further accept the testimony of the inspector to the
effect that the operator's superintendent told him
that he, the superintendent, knew about the violations,
but because men were on vacation and because the section was idle, the condition had not been corrected. I
hold this actual knowledge further demonstrates the
existenee of unwarrantable failure. I note that during oral argument counsel for the operator conceded
the existence of actual knowledge· on the part of the
operator.
The operator's defense apparently is based upon
the section foreman's action in allegedly beginning to
abate the violations upon the morning in question,
shortly before the order was issued. Even if this
testimony regarding the initiation of abatement is
accepted, I hold that it makes no difference. In my
opinion, it does not matter that the operator may have

543

started to correct the violation a few hours before the
order was issued. The violations already had existed
for several days and remained in existence when the
order was issued. The fact that the operator may have
recently begun abatement does not therefore preclude
issuance of the order. 'Even if the inspector had
ascertained what the operator was doing, it would not
have made any difference. The order still should have
been issued. The violation existed just too long.
Even assuming that pursuant to section 30l(c) of
the 1977 Amendments, the decision of the former Board of
Mine Operations Appeals of the Department of the Interior
in Zeigler Coal Company, 7 IBMA 280 ( 1977), remains 1n
effect, it does not help the operator here. The Board
in Zeigler defined unwarrantable failure as conditions
or practices the operator knew or should have known
existed and therefore should have abated prior to discovery by the inspector. The evidence in this case
makes clear that the cited violation should have been
abated long before discovery by the inspector. The
operator exhibhed a lack of due diligence, indifference, and a lack of reasonable care in this instance.
Accordingly, under the Zeigler decision the order is
val id.
In 1 ight of the foregoing, the order is upheld
and the application for review is dismissed.
ORDER
The bench decision is hereby AFFIRMED. Accordingly, it is
ORDERED that Order No. 012744 be UPHELD and that the operator's

application for review ber~~I~~~

Assistant Chief Administrative Law Judge
Issued:

June 15, 1979

FEDERAL MINE SAFETY AND ~1::.tii.tTH REVGE:W COMr~'HSS~ON
OFFICE QF ADMINISTRATiVE LAW JUDGES
4015 WILSON ~;ouLt::VARD
ARLINGTON, VIRGINIA 22203

June 18, 1979

Civil Penalty Proceeding

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

Docket No.· DENV 78-575-PM
A.O. No. 04-02065-05001
Garnett Pit & Mill

MASSEY SAND AND ROCK COMPANY,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Trial Attorney, Office of the
Regional Solicitor, U.S. Department of Labor,
San Francisco, California, for the petitioner;
Jack L. Corkill, Indio, California, for the
respondent.

Before:

Judge Koutras
Statement of the Proceeding

This is a civil penalty proceeding pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on September 25, 1978, through the filing of a petition for assessment of civil penalty, seeking a civil
penalty assessment for 10 alleged violations of the provisions of
mandatory safety standard 30 CFR 56.14-1, set forth in 10 citations
issued by a Federal mine inspector on March 28 and 29, 1978. Respondent filed· ail answer and p.otice. of contest ..on Oc-tober 23, 1978, denying the allegations and requesting a hearing. A hearing was held in
Indio, California, on March 12, 1979, and the parties waived the filing of written posthearing proposed findings, conclusions, and briefs,
but presented oral argument on the record.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regu.lations, as alleged in the petition for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil
penalty that should be assessed against the respondent for the alleged

violations, based upon the criteria set forth in section llO(i) of the
Act. Additional issues raised by ·the parties are identified and disposed of in the course of this decision.
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 u1
attempting to achieve rapid compliance after notification of the
violations.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
effective March 9, 1978, 30 U.S.C. § 801 ~seq.
2.

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

3.

Interim Commission Rules, 29 CFR 2700.1 et seq.
Discussion

The petition for assessment of civil penalties filed in this proceeding charges the respondent with 10 violations of mandatory safety
standard 30 CFR 56.14-1, and the violations were noted in the following citations issued by MSH.A inspect.or Hilario S. Palacios during site
inspections which he conducted on March 28 and 29, 1978:
March 28, 1978
376001. The pinch point on the rollers underneath the
skirt boards of the main feed chute of the No. 5 conveyor
belt at the pit were not guarded on the south side.
376002. The pinch points on the rollers underneath the
skirting of the feed chute of the No. 5 conveyor to the No. 4
conveyor belt at the pit were not guarded on both sides.
376003. The pinch points on the rollers underneath the
skirting of the No. 3 belt by the head pulley of the No. 4
belt at the pit were not guarded on both sides.
March 29, 1978
376005. The pinch points on the rollers underneath the
skirting of the feed chute of the No. 1 belt at the pit were
not guarded on the north side.

546

376006. The pinch points on the rollers underneath the
skirting of the feed chute of the fine sand belt at the mill
were not guarded.
376067. The pinch points on the rollers underneath the
skirt boards of the feed chute of the wet sand belt at the
mill were not guarded.
376010. The pinch points on the rollers underneath the
skirt boards of the feed chute of the lower belt at the mill
were not guarded.
376012. The pinch points on the rollers underneath the
skirt boards of the feed chute of the left to the crusher
at the mill were not guarded on the north side.
376013. The pinch points on the roller underneath the
skirt boards of the feed chute of the second sand belt at
the mill were not guarded.
376014. The pinch points on the rollers underneath the
skirt boards of the feed chute of the first dry sand belt atthe mill were not guarded.
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Hilario S. Palacios, confirmed that he inspected
the mine facility in question on March 28 and 29, 1978, and examined
the 10 belts in question to ascertain whether they were properly
guarded. He identified Exhibit P-1 as a diagram of a belt which is
representative of the belts he inspected. All of the belts were
equipped with skirt boards as depicted in the diagram and they were
not guarded at the pinch points, that is, the point on the belt where
the belt and skirt board come together. He indicated that these pinch
points have a "wringer" effect, and if someone were to be caught in
these pinch points, he could not get out. He believed that the stop
cords were inadequate and not sufficient for compliance because once
a man is caught in the pinch point beneath the skirt boards, damage
would have occurred. He also believed that four men were exposed to
a hazard of getting caught in the moving belt parts because they are
usually working around tail pulleys greasing or shoveling or walking
along the walkway, and in one instance, one man was walking along
taking care of a couple of feeder belts (Tr. 7-14).
Inspector Palacios testified that when he called the violations
to the attention of the respondent's representatives, they ceased
operating the belts and began installing screen guards over the pinch
points. He believed the respondent knew of the conditions cited
because stop cords were installed from one end ~f the belt to the
other, and one could tell by observation that the pinch points were

547

not guarded. The belt tail pulleys and takeup pulleys were guarded,
and the ones where no one could get at were guarded by location. He
believe.d that the safety standard which he cited applied to the belt
skirt board locations and he cited page 2 of a MESA memorandum dated
December 19, 1975 (Exh. P-2), which states that section 57.14-1 may
be cited for failure to provide guards at skirt board locations on a
belt, and he believes that the industry recognizes the need for guarding these areas. He also identified Exhibits P-3 and P-4 as pictures
of similar belts to the ones he cited which show skirt boards and
guards, and he believes this supports his view that the industry
recognizes the need to guard those locations (Tr. 14-21).
On cross-examination, Inspector Palacios conceded that the manufacturer of the equipment depicted in Exhibits P-3 and P-4 may not
be the only manufacturer of such equipment, but it is the only
gua~ded equipment that he has seen.
Theoretically, every roller and
belt traveling in the same direction constitutes a pinch point, and
while all moving parts on a belt are similar, all pinch points are
not. He confirmed that the belts were immediately stopped when the
violations were called to the attention of company management. He
would not consider the MESA memorandum previously referred to as an
"advisory circular" to district offices (Tr. 21-25).
On redirect, Inspector Palacios testified that he considered the
MESA memorandum to be mandatory on him. In all 10 citations, his concern was with the pinch points beneath the belt skirting, and he
believed that someone walking adjacent to the belt or working around
it could get his hand or clothing caught in those pinch points. The
height and elevation location of the belts varied, and he indicated
that if a man can reach 7 feet, he can stick his hand into a pinch
point. Some of the belts in question were waist-high, others were
higher, and others had work platforms around them where a man could
perform work around the pulleys. Mr. Palacios did not believe that
someone getting his hand caught between a roller and belt would be
seriously injured because, unlike the skirt board "wringer"' pinch
points, there is no pressu~e exerted which would create a pinch point
(Tr. 25-29).
Mr. Palacios could not state whether any one of the belts cited
by him were more frequently worked upon than others, although he did
indicate that he observed one man working on three belts, and that
the usual work entails greasing and cleaning. He did not know whether
greasing was performed while the belt was running because he had
never observed that type of work being performed. He believed the
danger present on all 10 belts cited was the same, and walking near
the belts or shoveling under the tail pulleys would expose men to
the pinch points. Men would likely spend more time at the feeder
belts, such as the one involved in Citation No. 376001, than at the
other belts. The person assigned to that belt normaily wor~s for
4 hours performing maintenance to insure the belt runs properly or he
is cleaning material off the belt. The belts in question are used

548

to move materials and men do not ride them. He did not know how
many men would be at any of the locations cited by him at any given
time (Tr. 30-36).
Inspector Palacios stated that abatement was achieved by the
installation of screens over the pinch points. With respect to the
skirting which was installed on all of the belts, he indicated it
varies in size depending on the materials moved along the belt.
Regarding the skirting depicted on his sketch, Exhibit P-1, he indicated that if someone fell against the skirting, it would be pretty
difficult for him to put his hand into the pinch point and he would
have to do it intentionally. He has seen someone do precisely that
(Tr. 36-39).
On recross, Mr. Palacios indicated that he observed no one
shoveling around the belts on the days the citations issued, and that
some of the belts are elevated with an open area underneath where
materials can fall to the ground and are cleaned up there. Of the
four people he observed around the belts, one was "stationed down
below taking care of the three belts," but he could not recall any
mucking or maintenance being performed at the time. The "moving
machine'' parts that he was concerned with in this case are th~ belt
rollers (Tr. 40-43). He indicated that respondent has no prior
history of violations (Tr. 47).
Respondent's Testimony
Milton H. Mathers, respondent's production foreman at the Garnett
Plant, testified that the plant is inspected at least once a year by
MSHA and OSHA, but the skirt guarding question has never previously
come up in these inspections. He described the belt system and the
components, and stated that the components, such as head, drive, and
snub pulleys, have been guarded. Since the time guarding was required
on the skirt boards, the emergency stop cords had to be mov~d and
attache~ to the guard just before the skirting.
The belt components
are greased when the belt is shut down, and greasing is performed by
means of grease line fittings located just outside the belt frames.
One can stand away from the belt, at a distance of 6 inches or a foot,
attach a grease gun to the grease line and grease the components, and
the grease line usually comes out of the guarding. One or two men
work on the belt system. One is an operator who observes the conveying system while it is running and he is watching for breakdowns, belt
tears, etc. The second man is a laborer who cleans out from under
the belt, and shoveling is conducted while the belt is running and
also when it is stopped. Shoveling is only done along the middle part
of the belt between the head and tail pulley, and only along the
ground level of the belt and not at the elevated portion. Any shoveling at the tail pulley is away from the guarded areas, and that location is guarded. The roller area between the skirting and head pulley
is not required to be guarded. A stop line r.uns along the length of

549

the belt and no one has ever mentioned the fact that the skirting area
needed to be guarded. He described the skirting used on the belts in
question, indicated that they were not like the pictures depicted in
Exhibits P-3 and P-4, but ran approximately 2 or 3 inches inside the
belt, sloping away, and the outside edge of the belt has no weight on
it (Tr. 55-62).
On cross-examination, Mr. Mathers testified that while the areas
in question are now guarded, prior to that time it was possible in
some instances for someone to come in contact with the rollers while
greasing, and that at the time of the citations, three employees were
assigned to the belt system. Also, in some places it was possible to
shovel in the area where the stop cord was located, that is, just past
the tail pulley (Tr. 62-63) • .
On redirect, he stated that before the guards were installed, the
stop cord was a little lower than the belt and a person would have to
go under the cord or fall through it to get caught in the rollers.
Such a person would have to deliberately stick his arm in or not watch
what he was doing in order to get caught in the roller (Tr. 63). However, loose clothing could get caught in the roller, but one would
have to be close to the equipment for this to happen. The belt
travels at a constant speed, roughly 300 rpms (Tr. 64).
James W. Harris, Engineering Representative, Aetna Life and
Company, testified he is familiar with section 56.14-1 of
the mandatory safety standards in question. lte stated that there are
other standards recognized by the conveying industry, namely, the
American National Standards Institute or ANSI standards. He cited
ANSI Standard 6.01.1.1, which covers belt conveyors which are fixed
in place, and indicated that the standards mention guarding troughing and skirting area rollers, as well as life lines. He does not
consider troughing and idler or return rollers to be part of the
drive train components of the conveyor system. He identified a MESA
publication concerning surface .mining fatalities indicating that head,
tail and takeup pulleys should be guarded, unguarded conveyors should
be equipped with emergency stop devices or cords along their full
length, and that pulleys or conveyors should not be cleaned manually
while the conveyor is in motion. He also identified an MSHA "fatalgram" dated. December 15, 1979, reporting an accident involving someone whose arm was caught between a moving conveyor belt and troughing
roller, and MSHA's recommendation in that case was that "Persons
under the influence of alcohol shall not be permitted on the job
55.20-1, 11 but there is no recommendation as to guardings (Tr. 6572).
Casua~ty

550

Discussion
Fact of Violation
Petitioner's Arguments
Petitioner's counsel candidly admitted that all of the citations
which were issued by the inspector in this case were issued because
of the failure of the respondent to install guards at the belt skirt
board pinch point locations cited by the inspector. Counsel also
indicated that while the inspector cited 10 separate violations, he
could just as well have cited one violation as a "practice," but
designating 10 separate locations where they occurred. He conceded
that the citations were rapidly abated by the respondent, and that
the inspector was most impressed.with the company's cooperation and
concern for safety. As for the gravity presented by the violations,
he indicated that the initial assessments made by the Assessment
Office in the amount of $8 each, answers that question.
Counsel
believed that the penalties should be somewhat higher because of the
severity of the injury which could result from the violations (Tr.
43-50). Counsel indicated that he considered the roller pinch points
to be a "similar exposed moving machine part" and that the addition
of the skirt board becomes critical because of the additional danger
(Tr. 74). In support of his theory of the case, counsel cited Judge
Moore's decision in Dravo Lime Company, IBMA 77-M-l, October 28, 1977,
holding that a skirted belt, in combination with a catwalk and ladder
next to idler pulleys which are unguarded, constitutes a pinch point
and "similar exposed moving machine parts which may be contacted by
persons, and which may cause injury***" (Tr. 83).
Inspector Palacios confirmed that he issued the citations because
of the presence of the skirt boards and stated that if a skirt board
were not preserit on the belts in question, he would not have•cited a
v.iolation because the addition of the skirt board is what creates the
hazard, since it has a tendency to squeeze someone in. .The "similar
exposed parts" are the combination of rollers and belt, but the skirt
board itself is not such a moving part. The presence of the skirt
boards led him to believe that someone could be injured (Tr. 76).
Respondent's Arguments
At the close of the testimony, respondent's counsel moved for a
dismissal of the case on the ground that the inspector cited section
56.14-1 simply because of the presence of the skirt boards, and the
standard does not mention such skirt boards, nor are they "similar
moving parts" because they are welded to the side of the belt itself
(Tr. 78). Regarding the gravity of the situation, counsel argued
that the areas at the tail pulley where a man would be shoveling have
always been guarded and stop cords were installed in compliance with
section 57.9-1. As for any negligence, counsel argued that guards

551

have always been provided when required, the cited section makes no
mention of anything other than drive train components, and that the
skirt board memorandum relied on by the insp~ctor cannot be charged
to the respondent since it is obviously addressed to someone within
the agency to clean up an apparent unclear interpretation. Respondent maintains it has always acted in good faith in complying with
safety requirements and that the stop cords were installed along the
full belt lengths in compliance with a standard which it believed
took care of the matter (Tr. 84-85).
Respondent's counsel indicated that the violations were initially assessed at $52 each, but reduced at the conferen~e stage
because of the rapid compliance demonstrated by the respondent in
abating the conditions cited. Counsel expressed a concern that the
company would be cited for 10 violations and have that on its record.
He explained that a stop cord was installed along the entire length
of the belts in compliance with section 57.9-7, that prior to starting the belts, there is a 12- to 15-second delay siren that sounds
to warn persons of the startup, and that in all of the years that the
company has been inspected, the problem has never been brought to its
attention, and had it known, it would have corrected the situaL:ion
(Tr. 52-53).
Findings and Conclusions
The condition or practice cited by the inspector in all 10 of
the citations issued in this case charges the respondent with a failure to provide guards at the "pinch points on the rollers underneath
the skirting (or skirt boards)" of certain designated conveyor belts.
The gravamen of each charge is the assertion by the inspector that
the respondent violated section 56.14-1 by failing to install a guard
as required by that standard which reads as follows: "Mandatory.
Gears; sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by persons, and which may
cause injury to persons, shall be guarded."
Although the inspector generally alluded to the hazards which
may result from someone getting his hand or clothing caught in a pinch
point due to the "wringer" effect which he described, he indicated
that the hazard presented at all 10 belt locations which he cited were
identical, that is, anyone walking near-the belts or shoveling under
the belt tail pulleys would be exposed to the pinch points at the
rollers beneath the belt skirting and could get their hand or clothing
caught in those pinch points. However, it seems clear from his testimony that he was unaware of any specific work activities taking place
at any of the locations cited which could reasonably have exposed men
to.danger. In addition, although he indicated that the height and
elevation of each belt varied, that some were·waist-high and others

552

higher, he did not specify which belt locations were readily accessible to someone walking by or working around the pinch points.
Further, while he indicated that men usually work around tail pulleys
greasing or shoveling, he could not state whether greasing is performed while the belt is moving because he never observed that type
of activity going on. As for any cleanup activity, he observed no
one shoveling around the belts in question and indicated that some
of the belts are elevated and allow materials to fall to the ground
below where they are cleaned. However, he did not indicate which
belts were cleaned from the ground and which were not. As for the
tail pulleys and takeup pulleys, he stated that they were, in fact,
guarded, and those where no one could get at were guarded by location,
that is, they were apparently so inaccessible that physical guards
were not required. And, as for the skirt boards in question, he
indicated that if someone fell against them, it would be difficult to
get their hands into the pinch point, and one would have to do it
deliberately.
I believe it 1s clear from the testimony of the inspector that he
issued the citations in question solely because of the presence of the
skirt boards which.were permanently attached to the belt frames, and
in the absence of the skirt boards, he would not have cited any violations. In issuing the citations, the inspector followed an interpretative memorandum issued to all metal and nonmetal district and
subdistrict managers by the then Acting Assistant Administrator for
Metal and Nonmetal Mine Health and Safety on December 19, 1975. The
concluding paragraph of that memorandum states that "Skirt board loca. tions, head pulleys, tail pulleys, open shaft ends, and other pinch
points on conveyor belts can be cited for lack of guards under Mandatory Standard 55, 56, 57 .14-1. 11 It is obvious in this case that the
inspector viewed that memorandum as a directive which required him to
cite a violation whenever he discovered a skirt board installed on a
belt at a location which he believed constituted a· "pinch point."
While I cannot fault the inspector for following what he believed was
the proper procedure for citing violations of section 56.14-1, the
action taken by him must be examined in light of the language of the
standard and the circumstances which prevailed at the time of the
citations, particularly since the standard, on its face, does not
specifically refer to "pinch points" or "skirts."
I have carefully reviewed the Dravo Lime Company decision cited
by the petitioner in support of its case, and aside from the fact that
the decision by Judge Moore is not binding on me, the facts are distinguishable. Judge MQore made a finding that in the absence of a
skirt, a belt idler pulley does not normally constitute a pinch point.
However, he concluded that the combination of a skirted belt with a
catwalk and ladder next to it caused the idler pulley to become
"similar exposed moving machine parts which may be contacted by persons, and which may cause injury." Judge Moore observed that drive
pulleys, head pulleys, tail pulleys, and takeup pulleys all contain

553

pinch points, and that was undoubtedly the reason why these particular pulleys were specifically included in the standard. Thus, by
interpreting the standard in the way that he did, Judge Moore, in
effect, added "idler pulley" to the standard, and, if I were to
accept petiti"oner's arguments in this case, I would add "skirt board"
or "roller" to the standard. I find this to be a most unsatisfactory
method or procedure for enforcing or promulgating mandatory standards,
violations of which will subject a mine operator to monetary civil
penalties and possible mine closures.
In this case, the respondent takes the position that it was never
notified of the memorandum relied on by the inspector, that it complied with the guarding requirements of section 57.9-7 by installing
safety stop cords along the belt walkways, and that the belt tail
pulfeys have always been guarded. Respondent's counsel asserted that
it stands ready to comply with any clear and unambiguous safety standard which it is apprised of, but finds it basically unfair to expect
compliance with a standard such as section 57.14-1, which, in effect,
has added a guarding requirement for skirt boards by means of an
internal memorandum communicated only to MSHA's district and subdistric:t. offices.
The requirement of the mandatory safety standard in issue in
this proceeding is that certain designated machine parts, as well as
similar exposed moving parts which may be contacted by persons, and
which may cause injury to such persons, must be guarded. The stand-ci.rd
makes no mention of pinch points or skirt boards. It seems to me that
if the Secretary deems it desirable to include these factors in the
standard, he should specifically take steps to amend the standard
accordingly. Further, if the Secretary deems it desirable to distribute to his enforcement personnel an interpretive memorandum
regarding any safety standard, basic fairness dictates that it also be
circulated to mine operators so that they are made aware of~he ground
rules. It seems clear to me that any basic changes or revisions in
the application of safety standards set forth in the regulations must
be accomplished in accordance with the rulemaking provisions of the
Act, United States v. Finley Coal Company, 493 F.2d 285 (6th Cir.
1974). Further, enforcement of a standard that fails to inform a
party what he must do to comply therewith does not comport with due
process requirements. Cape and Vineyard Division v. OSAHRC,
F.2d
(1st Cir. No. 74-1223, decided March 3, 1975). Where regulations
are subject to civil sanctions, parties against whom such regulations
are sought to be enforced are entitled to receive fair warning of the
conduct required or prohibited thereby. Fleuti v. Rosenberg, 302 F.2d
652 (9th Cir. 1962); Jordan v. DeGeorge, 341 U.S. 223 (1951). They
are further entitled to be free from the arbitrary application of
regulations which are capable of multiple interpretations. Bowie v.
City of Columbia, 378 U.S. 347 (1964). As pointed out by the Fifth
Circuit in Stokes v. Brennan, 476 F.2d 699, 701 (1973): "Far from
impeding the goals of law enforcement, in fact, the disclosure of

554

information clarifying an agency's substanttve or procedtiral law
serves the very goals of enforcement by encouraging knowledgeable
and voluntary compliance with the law."
While I subscribe to the proposition that the Act should be
liberally construed to insure the safety and health of miners, I also
believe that rational and workable interpretations must be applied so
as to insure that those mine operators who are regulated by the
Secretary clearly know what is to be expected of them in terms of
compliance. I do not believe that an internal memorandum, addressed
only to the enforcing arm of the Secretary, summarily advising mine
inspectors to ipso facto cite a violation when skirt boards are
encountered, thereby expanding the scope of the codified standard,
serves to put an operator on notice as to what his responsibilities
are. This is particularly true in proceedings brought under the 1977
Act which provides for assessment of civil monetary penalties for violations. Prior to the enactment of the 1977 law, metal and non-metal
mine operators were not subjected to civil penalties. A citation
issued under the now repealed Metal and Nonmetallic Mine Safety Act
simply imposed a duty on an operator to abate the condition cited
within the time fixed for abatement, and his failure to do so resulted
in a closure order effectively shutting down the mine. There were no
provisions for the imposition of monetary civil penalties. However,
under the 1977 law, metal and nonmetal mine operators are now subjected to civil penalty assessments for proven violations of any
mandatory health or safety standard. In this setting, it seems to me
that basic fairness dictates that the Secretary clearly and precisely
advise an operator of what his responsibilities are, and the way to
do, this is to promulgate clear, rational, and understandable guarding
standards. Based on the facts and evidence developed in this proceeding, I am of the view that the present guarding standards are
ripe for Secretarial scrutiny so as to insure clear understanding by
both the enforcers and enforcees.
On the basis of the facts developed in this proceeding, it is
clear that the inspector acted on the basis of the internal memorandum concerning skirt boards. However, that memorandum is not a mandatory standard and is in no way binding on an operator, particularly
when there is no evidence that the respondent in this case was even
aware of it. See North American Coal Corporation, 3 IBMA 93 (197-4);
Kaiser Steel Corporation, 3 IBMA 489', 498 (1978). I find that the
memorandum's language goes beyond any reasonable and clear reading
of the plain terms of section 56.14-1. I cannot conclude from the
facts presented in this proceeding, as did Judge Moore in Dravo,
that a skirt board can be construed to be a "similar exposed machine
part." Nor can I conclude that anyone reading section 56.14-1 can
reasonably conclude or know that skirt boards, in and of themselves,
are required to be guarded. While I recognize the fact that serious
injuries, as well as fatalities, have occurred when persons become

555

entangled in a moving belt, that does not justify a general indictment of all such devices, particularly in situations where they are
isolated, otherwise adequately guarded, are located in areas where
no one is likely to come into contact with them, or are covered· by
other pertinent standards. As indicated earlier, if the Secretary
feels that all potential pinch points, or all skirted areas of belts
should be guarded, then it is incumbent on him to promulgate and
articulate this by means of a clear and unambiguous standard. The
present guarding standards, in my view, leave much to the imagination.
For example, one standard allows the installation of a stop cord along
the entire length of an unguarded belt as satisfactory protection
against someone falling against a moving belt which may be loaded
-with materials. Although every roller on a belt may constitute a
potential pinch point, there is no requirement for guarding uordinary"
rollers on the theory that someone is not likely to get "seriously"
injured if he caught his hand or clothing in such a situation. No
distinctions are made in loaded and empty belts, and the term "pinch
point 11 is not.further defined. Although some of the belts which are
isolated and out of reach are apparently deemed to be "guarded by
location" and need not be physically protected with a guard or screen,
the inspector in this case failed to distinguish them since he obviously believed they all required guards because of the installation.
of skirt boards.
I believe that when an inspector cites a violation of section
56.14-1, it is incumbent on him to ascertain all of the pertinent
factors which lead him to conclude that in the normal course -0f his
work duties at or near exposed machine parts, an employee is likely
to come into contact with such parts and be injured if such parts
are not guarded. On the facts presented in this proceeding, I cannot
conclude that the inspector made any real assessment of all of the
circumstances which prevailed at each of the locations cited by him
at the time the citations.issued. I conclude that he relieq solely
on the memorandum which he interpreted as an instruction to 'cite a
violation whenever he encountered a skirt board attached to a belt,
without any real consideration'·given as to whether one was likely to
come into contact with moving parts during the course of his
duties.
Here, the testimony of the inspector reflects that while he believed
th.at the area where the belt and skirt board came together constituted a pinch point, he also believed that it would be difficult for
someone falling against the skirt board to become entangled in the
pinch point unless he deliberately reached into that area.
In view of the foregoing, I conclude and find that petitioner
has failed to establish a violation of the cited standard, and my
finding in this regard is based on the following:
1. The inspector relied solely on an internal memorandum which he viewed as a mandatory requirement that he
cite a belt with a guarding violatioin when a skirt board
was attached.

2. The inspector failed to determine whether each of
the locations cited by him <lid in fact present a hazard,
that is, he failed to ascertain whether, in the normal
course of his duties, it was likely that a miner would
be exposed to a hazard of becoming entangled in a pinch
point.
3. The evidence adduced by the petitioner does not
establish that it was likely that any miner would, in the
normal course of his duties, become entangled in any of the
belt locations cited simply because of the fact that a skirt
board had been installed at those locations.
ORDER
In view of the foregoing findings and conclusions, it is ORDERED
that the petition for assessment of civil penalties filed in this
proceeding be DISMISSED, and the citations isssued be VACATED.

" ttf-~v(//--~~~
~vt-Y~:J

~

, eorge~" Koutra
Administrative Law Judge

Distribution:
Marshall P. Salzman, Trial Attorney, U.S. Department of Labor,
Office of the Solicitor, 3247 Federal Building, 300 North
Los Angeles Street, Los Angeles, CA 90012 (Certified Mail)
Jack D. Corkill, Director of Safety, Massey Sand and Rock
Company, 43850 Monroe, P.O. Box 1767, Indio, CA 92201(Certified Mail)
Standard Distribution

F'EDERhl i~;1H·~[E SfiU-:"ETY .r·J':lfJ MEALTM t1f:VH.:V:! CQR't~;.~r,~;,~{n~
OFFICC o:= l\C·rtitr~ISTRATIVE t.AW JUCGt::S
4015 Wtl.~Of<J BOUL~VArW
Jl,Rllt>!GTOf~. VIRG IMIA 22203

Ju:1e

19, 1979
Discrimina.tion Complaint

SECRETARY OF LABOR,
MIHE S/\.FETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. NOi>..T 78-382

ON BEilALF or ROBERT L. WEST,
Complainant

Elkins No. 6 Mine

v.

ELKINS F.:HERGY CORPORATION,
Respondent
DECISION

Appearances:

Robert A. Cohen, Esq., and Ann Rosenthal, Attorney,
Department of Labor, for Complninant;
Buddy H. Wallen, Esq., and Gerald L. Gray, Esq.,
Clintwood, Virginia, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a written order datE•d November 27, 1978, as amended
December l and 11, 1978, a h~aring in the above-entitled proceeding
was heJ.d on January 16 thro11gh January 18, 1979, in Wise, Virgini;i,
under section 105(c) of the FeJeral Mine Safety and Health Act of
1977.
The d iscrimin.1t ion tornpl.s.int in this proceeding was filed on
September 29, 1978, alleging that complainant, Robert L. West, had
been discharged on April 4, 1978, by respondent in violation of
section :!.05(c)(l) of the Federal Hine Safety and Health Act of 1977.
Complainant was reinstated on July 10, 1978, under an order of temporary reinste.tement issued July 3, 1978. The discrimination com~
plaint was amended on November 15, 1978, to allege that complainant:
had again been unlawfully discharged on September 28, 197 8. The
Secretary made no finding under section 105(c)(2) as to whether the
discrimination complaint with respect to the second discharge was
frivolously brought. Therefore, co;nplainant was not temporarily
reinstated after the second discharge and consequently has been without work since September 28, 1978, the date of the second discharge.
Issues
Counsel for complainant filed a posthearing brief on May 4,
1979, and counsel for respondent filed a reply brief on May 29, 1979.
Both briefs agree that the complaint raises the following two issues:

558

1. Whether complainant Robert L. West was discriminated against
in violation of section 105(c) of the Act when he was "laid off" on
April 4, 1978.
2. Whether complainant Robert L. West was discriminated against
when he was fired by Elkins Energy on September 28, 1978.
Findings of Fact
I am listing below the findings of fact on which I shall base my
decision in this pro~eeding. Nearly every fact in this case was the
subject of testimony by two or more witnesses. Therefore, my findings
of fact necessarily involve some credibility determinations. In my
discussion of the parties' arguments I shall refer to various findings
of fact and, if those findings are based on credibility determinations, I shall hereinafter explain why I have elected to accept the
testimony of one witness as being more credible than that of another
witness.
1. Elkins Energy Corporation, the respondent in this proceeding,
owns four underground coal mines at the present time (Tr. 442). The
Elkins No. 6 Hine is the only one directly involved in this proceeding.
The No. 6 Mine produced an average monthly quantity of 15,766 tons of
clean coal for the months of September, October, and November 1977
(Tr. 10). A miners' strike occurred on December 6, 1977, and lasted
through March 26, 1978 (Tr. 211). After the strike, the No. 6 Mine
produced an average monthly quantity of 11,000 tons of clean coal for
the months of April, May, and June 1978 (Tr. 11). Elkins Energy is
owned by William Ridley Elkins, Hershel Elkins, and Dale Meade.
Ridley Elkins is vice president and part owner; Dale Meade is a
partner and chief electrician; and Hershel Elkins is a partner and
supervisor of insurance, labor relations, and union arbitrations
(Tr. 441; 444; 453). Other persons apparently own varying interests
in Elkins Energy, but their names are not given in the record (Tr.
461).

2. Robert L. West, the complainant in this proceeding, began to
work for Elkins Energy at the No. 6 Mine on November 16, 1977. For
3 days after November 16, 1977, West was shown around the mine and
given an opportunity to familiarize himself with its methods of operation. At the end of 3 days, West was· assigned to be the section
foreman on the night shift which worked from 3 p.m. to 11 p.m. on
Monday through Friday of each week (Tr. 17; 19; 179). West was paid
a monthly salary of $1,925 (Tr. 19; 181) until the week following the
miners' strike (March 27, 1978) when his ..salary was raised to $2, 100
per month (Tr. 215-216).
3. During the strike, that is, from December 6, 1977, to
March 26, 1978, only four men worked at the No. 6 Mine. One of those
men was Douglas Shelton who was superintendent of the No. 6 Mine.

559

The other three men were West, John Ed Mullins, and Morrell Mullins.
John Ed Mullins had been an electrician at the No. 6 Mine anc.1 Morrell
Mull ins had been the day-shift section foreman at the No. 6 Mine prior
to the strike (Tr. 144-146; 556-557). The duties of all men during
the strike were to preshift the mine, to keep the ventilation in good
condition, and to maintain the equipment (Tr. 45; 185). During the
strike, the four men were paid only half of the salnry which they
normally received when the mine was actually producing coal (Tr. 355).

4. On February 28, 1978, while the strike was still in progress,
West was working with John Ed Mull ins at the belt feeder when a rock
fell on West's head and shoulders (Tr. 47). John Ed rendered first
aid and Morrell and John Ed succeeded in transporting West out of the
mine qn the conveyor belt (Tr. 176). John Ed took West to thP. hospital in Wise, Virginia, which is about 20 miles from the No. 6 Hine
(Tr. 175). No one was on duty on the surface of the mine when West
was injured although Doug Shel ton, the superintendent, nonnally
remained on the surface when the other three men were underground
(Tr. 159; 389; 568). Doug Shelton had called on the telephone before
the three men went into the mine on February 28 to advise them that
he WC•.1ld be coming to the mine at a subsequent time (Tr. 168; 357;
568). After the accident, West told Doug Shelton that he would
thereafter go underground only when someone had been assigned to
remain on the surface of the mine (Tr. 49; 150; 390).
5. The strike ended on March 26, 1978, and on the next day,
March 27, 1978, West resumed the duties of section foreman on the
night shift. West worked for 6 days; or until April 4, 1978, when,
at about 9: 30 a .m., West received a cal 1 from the superintendent of
the mine, Doug Shelton, advising West that Ridl~y Elkins had asked
Doug to lay off all the men on the night shift because the No. 6 Mine
was not producing enough coal to justify retention of the night shift
(Tr. 58; 405).
6. West went to the No. 6 Mine about 2:30 p.m. on April 4, 1978,
to collect his personal belongings and found that the miners on his
shift were dressed in their working clothes and were waiting outside
the mine preparatory to entering the mine to work the night shift.
West went into the mine office and asked Doug Shel ton why the men on
the night shift had reported for work if the night shift had been
discontinued.
Doug explained to West that between 9:30 a.m. and the
time that West had come to pick up his personal equipment, Doug had
received another call from Ridley Elkins retracting his orders to lay
off the second shift and modifying his instructions so as to have
Doug lay off only those men who had originally been hired to work on
a third shift which would begin at 11 p.m. and end at 7 a.m. (Tr.

60; 407).
7.
Doug then reminded West that West and a repairman named
Hugh Stidham had originally been hired to work on the third shift and

560

that West and Stidham were being laid off until such time as management might detennine whether a third shift would be economically
advantageous (Tr. 61; 391; 409). Although Doug could not recall.their
names, he had tentatively hired two miners who lived at Clintwood,
Virginia, to work on the third shift. Doug also called those two men
on April fi., 1978, and told them that they would not be needed. They
had expected to report for work at 11 p.m. on the night of April 4,
1978, to begin working on the third shift and on the basis of that
expectation had resigned their jobs at another mine (Tr. 391; 429).
They were fortunately able to return to the mine where they had been
working after Doug had advised them that they would not be needed at
the No. 6 Mine for the third shift (Tr. 391; 429). Doug waited until
after Stidham had reported for work on April 4, 1978, to lay him off
(Tr. 128), but Stidham was rehired ~s a belt man a few days later.
Stidham's substitute job as a belt man required him to crawl around
on the wet mine floor which caused Stidham' s .:»:thritis to react s(;
painfully that he was forced to stop working for Elkins Energy
(Tr. 126; 130).
8. Ridley Elkins and Doug Shelton had conferred before the
strike and had tentatively decided to start a third shift as soon as
the strike had ended. The third shift was planned as a maintenance
shift. The men on the maintenance shift would do the kinds of work
which were difficult to accomplish while coal was being produced.
Work on the maintenance shift would consist of applying roe k dust,
hanging ventilation curtains, installing roof bolts, hauling supplies
in to the mine, ancl preparing belt structures for advancement of the
belt to keep pace with production at.the faces (Tr. 268; 346; 457).
The third shift was not instituted immediately after the stri.Le
because a lot of equipment broke do~m soon after the strike which
had an adverse effect on production (Tr. 56; 126; 153; 303-304; 360;
445; 449). Both Ridley Elkins and Doug Shelton stated that the
third shift was not actually begun until production after the strike
had been built back up to the quantity that had been produced before
the strike (Tr. 359; 361; 444; 457).
9. Despite management's clal.m that the third shift was not
begun until post-strike production reached pre-strike levels, th~
facts show that the third shift was begun on or about May 1, 1978,
but post-strike production through June 1978 was only ll,000 tons
per month as compared with 15,766 tons before the strike (Tr. 266-268;
448).
10. Qualified section foremen are difficult to find. Therefore,
when Doug Shel ton and Ridley Elkins tentatively dee ided before the
strike to institute a third shift after the strike, Doug began looking
for a section foreman so that he could hire one before the strike and
have him available to take over supervision of a third shift if conditions existing after the strike warranted commencement of a third
shift. Since West was hired as the prospective third-shift foreman

561

on November 16, 1977, and the miners' contract did not expire until
December 6, 1977, it was necessary to utilize West as a section foreman on the second shift until such time as a new contract could be
negotiated. West's assumption of the position of section foreman on
the second shift brought about a change in assignment of existing
mine personnel because Don Shelton, who was acting as the secondshift section foreman when West became second-shift section foreman,
had to be reassigned to the position of helper to the operator of
the continuous-mining machine. Don, who was a brother of Doug
Shelton, the mine's superintendent, was a foreman-trainee at the
time West was hired and Don did not obtain his papers as a mine foreman until January 10, 1978 (Tr. 17-18; 307; 346; 376; 379; 457; 565).
11. The strike lasted longer than Doug Shelton or Ridley Elkins
expected (Tr. 429). By the end of the strike, Elkins Energy was in
difficult financial circumstances because it had received little or
no income during the strike and the legislation pertaining to strip
·mining had forced Elkins Energy to close its surface mines and lay
off app-roximately 300 miners (Tr. 458-fi.59; 461;). When production at
the No. 6 Hine continued to lag below pre-strike levels, Ridley Elkins
deci~ed to postpone the institution of a third shift at the No. 6
Mine. In an effort to economize, Ridley instructed Doug Shel ton to
lay off any llliners who had been hired for the third shift (Tr. 391;
427). The only miners on Ridley's payroll who had been hired for t!-ie
third shift were West and Stidham (Tr. 391).
12. On A~ril 4, 1978, the day Weat was laid off, it was necessary for Doug to reinstate his broth~r, Don Shelton, as the section
foreman on the second shift (Tr. 362; 407). Don Shelton had been
working as the helper for the operator of th0 cpntinuous-mining
·machine (Tr. 20). Another person had to be obtained to fill Don's
position as helper to the operator of the continuous-mining mC?chine.
Randall Goins .was transferred from another of Elkins' mines to be the
section foreman on the third shift which was initiated on or about
May 1, 1978 (Tr. 267; 362; 4l~9). Not long after Goins had been
assigned as section foreman on the third shift, Don Shelton elected
to resume his union job of helper for the operator of the continuousmining machine and Goins was moved from the thir-d shift to fil 1 the
position of section foreman on the second shift which had been left
vacant when Don Shelton resumed his union job (Tr. 268). Consequently, there was no net economic benefit to Elkins Energy in laying
off West because vacancies were merely created which had to be filled
by the hiring of a new section foreman or the transfer of miners from
one place to another. Also see Finding No. 27, infra.
13. On April 5, 1978, the day after his discharge, West went to
Norton, Virginia, and filed a discrimination complaint with the Mine
Safety and Heal th Administration alleging that he had been discharged
for diligently trying to uphold the Federal and state m1n1ng laws
(Exh. 2; Tr. 68). On the afternoon of the same day on which the

562

complaint had been filed, Doug Shel ton called West on the phone and
asked him if he would be willing to accept a position at another mine
owned by Elkins Energy. West stated th2t he would be willing to~ccept a substitute position and Doug told West that he would see
what could be done. During the conversation, Doug asked West tf West
had filed a discrimination complaint against him and West confinned
that he had (Tr. 69; 251; 369-370; 399; 404).
14. West's complaint of April 5, 1978, aileges that during his
employment by Elkins Energy he had advised h·l.s crew that if he
remained their section foreman, he would (1) restore ventilation,
(2) stop cutting into auger holes on the return side in No. 6 entry,
(3) stop miners from smoking in the mine, and (/+) make sure that .
someone was always on the surface when men were underground (Exh. 2).
In his direct testimony at the hearing, West repeated that he had
brought the four items listed above to the attention of the mine
superintendent, Doug Shelton. Additionally, West stated at the
hearing that he had complained to Doug about the failure of the
miners on the first shift to install temporary supports in all places
from which coal had been removed and West also objected to Doug's
failure to have an up-to-date mine map showing the location of .:.uger
h6les (Tr. 21~. West stated that he actually had a list of 27 items
about which he had complained, but no one at the hearing asked him to
identify any complaints besides the ones enumerated above (Tr. 27).
Finally, West stated at the hearing that Doug had ridden a gasolinepowered dune buggy in the No. 6 Mine during the strike and West had
told Doug that riding the dune buggy in the mine was a violation of
laK and dangerous becauSE.! the engine· on the dune buggy created noxious
fumes in the mine and might cause an explosion (Tr. 42; L~Ol).
15. Several witnesses were called in support of West's claiu
that he had complained about safety violations to Doug Shelton, the
superintendent of the No. 6 Mine. Hugh Stidham, a former repairman
at the No. 6 Mine, testified that he had heard West complain to Doug
about ve.ntilation curtains being knocked dO\m by the first shift,
about the failure of the miners on the first shift to install temporary supports, and about the auger holes which had been encountered
(Tr. 110; 113-114).

16. James F<?.lin, a former mechanic at the No. 6 Mine, supported
West's stataments with respect to smoking in the mines by testifying
that he had seen the men smoking in the mine when West was not in
their vicinity (Tr. 135).
17. John Ed Mullins, a fonner electrician at the No. 6 Mine,
supported West's claims that he had complained about safety.
John Ed stated that he had heard West complain to Doug (1) about
West's claim that fly curtains were needed in the mine, (2) about
West's intention of stopping the men from smoking in the mine,

563

(3) about We~t's position that no men should be allowed to go underground unless there was a person on the surface who would be able to
hear the mine phone, and (4) about West's objection to Doug's ha~ing
ridden the dune buggy into the mine during the &trike (Tr. 148-150).
John Ed stated that he had not personally made any complaints about
safety at the No. 6 Mine and that West had made more complaints about
safety than the day-shift section foreman, Morrell Mullins (Tr.
167-172).
18. Robert ·Hilton, a former roof bolter on the second shift at
the No. 6 Mine, testified that West tried to get fly curtains at the
No. 6 Mine but was unable to do so. Hilton said that the other
c~rtains were often torn down by the shuttle cars and were kept
rolled up most of the time. Hilton said that if men were accustomed
to smoking out of the mine, they continued to do so when they were
underground working in the mine. Hilton &aid that he heard West say
that he was going to have a talk with Doug about the fact that the
men were smoking in the mine because West could not allow the men to
smoke. Hilton, who worked on West's shift, stated that temporary
supports were supposed to be installed but that they did not practice
followL1g the law. Hilton said they did not hav~ timbers underground
for use as temporary supports and that none wer0 brought undergroun.::
for that purpose. Hilton found the roof unsupport~d when he went to
each place to install roof bolts and no temporary supports were ever
installed until he and his helper uent into a place to install roof
bolts (Tr. 298-302). The roof-control plan for the No. 6 Mine
requires that roof bolts be installed within 5 minutes after the
continuous-mining rr.achine completes loading coal from a given working place (Tr. 248).
19. The detailed complaint which West made about the ventilation
curtains was that they were completely down every afternoon when he
,.lent in to start his shift at 3 p.m. He said that a period of from
30 minutes to an hour was required every afternoon to rehang the
curtains and that his insistence that ventilation be properly maintained was a hind:rance to production which management could not tolerate (Tr. 188; 237; Exh. 2). West conceded during cross-examination
that if management had laid him off because he was a hindrance to
production, that production should have increased after West was laid
off on April 4, 1978 (Tr. 193). The evidence shows, however, that
production did not decrease after West was hired and did not increase
after he was discharged (Tr. 10-11; Finding No. 1-, supra).
20. Before the strike, when West was section foLeman on the
second shift, he was not required under 30 CFR 75.303 to make a
preshift examination on his shift because no production followed the
second shift (Tr. 250; 589). Despite the fact that West \-las not
required to make a preshift examination, he stated that he made such
an examination any way and that he would make an entry in the onshift
reporting book if he found that any place needed scooping or bolting

564

(Tr. 54). West stated on cross-examinntion, however, that he
corrected the violations he observed and that it was unnecessary to
report in the book the violations which he had corrected (Tr. 199).
West later stated that he made at least one entry in the preshift and
onshift book pertaining to lack of proper veotilo.tion (Tr. 205).
West first stated that miners had smoked in his presence in the mine
until he told them not to do so (Tr. 26). Later West said that he did
not report the miners' smoking in the book because he did not personally see them s1i10king (Tr. 200). West eventually justified his failure to make entries in the book by stating that Doug Shelton told
him not to write do\\"'rt ev'2.ry violation he sa\v in the preshift book so
that the inspectors would not read the entries in the book regarding
the violations and then check to see if the violations had been
corrected \"hen they made their examination of the mine (Tr. 233).
21. Weiot said that he started to sea1·ch the miners for smokers 1
articles one or two times, but about 4 days after he began to work at
the No. 6 Hine, Doug told him not to bother with searching the men
for sm0kers 1 articles because they resented it and were inclined to
slack off on production if they were searched (Tr. 235; 25LJ.). Robert
Hiltc,,1, who was a roof bolter on West's shift, stated that he had
never been searched for smokers' articles at the No. 6 Mine and had
never seen anyone else searched for smokers' articles (Tr. 316).
22. Ai though .West said that the roof-control plan required ternporary supportc to be set within 5 minutes after the coal was removed
unless the roof bolters were ready to enter the work place to bolt,
West did not have temporary supports set on his own shift in places
left unsupported by the precedini; shift. The foregoing conclusion
is supported by the testimony of at least two miners who worked on
West 1 s shifts. Robert Hilton, who worked on West 1 s shift before the
strike, stated that temporary supports were rarely set in any of the
places before he entered them to bolt (Tr. 248; 301). Earl Houscright,
who worked on West's third si·1ift after West 1 s temporary reinstatement,
said that most of the time there were no supports in the places when
he entered them to bolt. Thus, West left his men exposed to roof
falls until such time as they bolted the roof despite the fact that
the temporary supports are required to be installed \vithin 5 minutes
after the coal has been removed. Rouseright also said that he would
set from four to eight temporary supports, depending on the condition
of the roof, but he said that he did not know how many were required
by the law or roof-control plan (Tr. 652). West stated twice during
the hearing that he did not know whether the roof-control plan
required installation of six or eight temporary supports (Tr. 39;
248). West also said that he had to send outside the mine to get
timbers for making temporary supports when the miners on his own
production shift removed coal from working places at a faster rate
than the roof halters could enter the working places to install
roof bolts (Tr. 255).

565

23. Jackson Sturgill, a former section foreman on the thi1·d
shift al the No. 6 Mine, supported West's position by stating that
the men on the second shift failed to install temporary supports
after removing coal from working pl3ces and that he often found as
many as eight places in need of bolting where no temporary supports
had been erected (Tr. 290). At the time Sturgill testified, the
second shift was supervised by Randall Goins who was not working at
the No. 6 Mine at the time West. made his complaints to Doug about the
failure of the.men on the first shift to install temporary supports.
Sturgill_, however, did not support West's claims that Doug was
indifferent about men smoking in the mine. Sturgill testified that.
he searched the men for smoking articles and that Doug approved of
the searches and that Doug personally told the men not to smoke in
the mine (Tr. 292). Doug testified that he violated Federal law by
failing to search the men for smoking articles because he believed
that the miners resented it and that the searches caused them to
believe that the superintendent did not trust them; nevertheless,
Doug ~as opposed to smoking in the mine and warned the men of the
dangers inherent in smoking in the mine (Tr. 422-425).
2L~.
Doug Shelton also admitted during his testimony that Fest
talked to him about ventilation curtains being down at the face and
Doug agreed thcit he had refused to buy the kind of fly curtains that
West wantc;.d him to get because he believed they were unnecessary when
the ventilation curtains were installed in accordance with the
ventilation p1-an for the No. 6 Mine (Tr. 350; 371; 373-37l;; 383;
Exh. A). Doug further admitted that the miners on neither the first
nor &econd shift were installing temporary supports after they had
cleaned up the coal and he agreed that this was a problem which West
discussed with him (Tr. 354). Doug also agreed that it was a violation of the law for him to ride the dune buggy in the mine and he
further agreed that he did not always have a man on the outside of
the mine when men were underground and that he recognized that failure
to do so was a violation of the l~w (Tr. 388; 401).

25. Doug, on the other hand, denied that West had discussed the
problem of mining into auger holes with him, but Doug conceded that
the continuous--mining machine had cut into auger holes because the
mine map did not correctly show their location. Doug stated that
MSHA cited the mine for violating the requirement that the mine map
show the location of the auger holes and that the map had to be
updated for that purpose (Tr. 351; 353). Doug said there was a drill
on the back of the scoop wl1ich was available for testing the coal in
advance of mining to determine whether an auger hole or an abandoned
mine raight be in the vicinity of active mining operations, but Do11~
noted that the drill could be detached from th~ scoop and that it
was usually necessary to hunt for the drill when it was needed (Tr.
352;. 385). Doug denied West's claim that the drill was not used to
search for dangerous conditions in advance of the cutting operations
of the continuous-mining machine (Tr. 386; 425-426).

566

26. Ridley Elkins testified that it was his decision to lay bff
the miners who had been hired to work on the third shift, but he
denied that he gave instructions to lay off West by name (Tr. 442;
444). Ridley stated that section forernen should make their complaints
to the superintendent ~10 is hired for that purpose because Ridley
expects the superi.nt.cndc:nt either to take action on complaints or
inform him about the complaints (Tr. 444).
27. Ridley Elki~s had a detailed knowled~e of everything that
happened at the No. 6 Mine. He knew precisely what equipment had
broken down at the mine after the strike and readily enumerated the
motors, etc., that had to be replaced (Tr. 448-449). Ridley knew
that the shuttle cars were alternatively taken from the mine for the
purpose of being rebuilt and he knew how long the mine operated with
only one shuttle car before a small shuttle car was brought in to
assist the remaining large one in maintaining production \vhile one
large car was out of the mine for repair (Tr. 448). Ridley personally
brought in a section foreman to work on the third shift when the third
shift was instituted and Ridley personally transferred the foreman to
the No. 6 Hine from another mine because the foreman 1 iked Ridley and
wanted to work in a mine where he would often sec Ridley (Tr. 450).
Ridley knew of two men at Clintwood, Virginia, who could be hired for
the third shift when it was instituted and he had advised Doug of
their availability (Tr. 429-430). Doug discussed the minute details
of the operation of the mine with Ridley in that Doug stated that
Ridley "knew from day to day what was going on, and he would tell me"
what to do (Tr. 390).
28. At the time of the hearing,' Doug Shelton no longer worked as
superintendent of the No. 6 Mine because Doug had personally gone into
the coal business after forming Shelton Coal Company (Tr. 343).
Morrell Mullins, who had worked at the No. 6 Mine as section foreman
on the first shift, had accepted the position of superintendent at the
coal company owned by Doug Shelton. Morrell was, therefore, extremely
supportive of Doug Shelton's position in this proceeding to the extent
that he understood Doug's position. For example, he stated that West
might have found the ventilation down at times when West ·reported for
work at 3 p.m. on the second shift, but Morrell said that he also
found the curtains dovm nearly every morning after the men on West's
second shift had completed their work (Tr. 558; 571). Morrell said
that it was just about "an every morning thing" that Doug was "ontc
him" about preventing the men from smoking in the mine, although he
said that their search policy for smokers' articles was not as
stringent as it could have been (Tr. 560). Morrell stated that the
men on his shift did not install temporary supports as they should
have, but he claimed that the men on West's shift also failed to
install temporary supports (Tr. 564). Morrell stated that West's
entries in the preshift and onshift book were just a repetition ot
the word "None", meaning that West had reported no hazardous conditions. Morrell said that West might enter something different

567

once in a while just to vary the appearance of the report, but Morrel 1
said that West never did report a significant safety violation in the
books (Tr. 570).

29. Morrell was present when Dou,r; Shelton rode the dune buggy
the mine during the strike and he personally did not tell Doug
that his doing so was a violation of the law (Tr. 573). Morrell
stated that he had seen men smoking in the mine, but that he had not
reported them to Doug or made an entry of that fact in the preGhift
or onshift book (i'r. 571~). Horrell did not make an entry in the book
about the fact that he found on a daily basis that temporary suppcirts
were not being installed (Tr. 588). Likewise, although Horrell found
the ventilation curtains we:ce constantly torn down and lyiniJ, i.n the
mud, he did not make any entries in the book about that either (Tr.
~nto

588).
30. West stated that he made a round of the faces every 20 to
25 minutes and tested for methane if there was machinery in the face
area either extracting coal or bolting the roof (Tr. 55). Robert
Hilton, who was a roof bolter on West's shift, stated that West could
not have made a chec·k for rnethane in his working place without his
seeing West do so, but he said that in all the time that West worked
in the mine, he had seen West make only one methane test (Tr. 310).
31. Chief Administrative Law Judge James A. Broderick issued an
order of temporary reinstatement on July 3, 1978, requiring that
Elkins Energy reinstate We.st to the position of section foreman at
the rate of pay and with work duties .equivalent to those which had
been assigned to him immediately prior to his discharge on April 4,
1978. After the reinstatement order had been issued, Doug Shelton
and Ridley Elkins conferred about the matter and concluded that West
should be assigned to work on the third shift since that was the
shift for which he had originally been hired (Tr. 410). When Doug
called West on Saturday, July 8, 1978, and advised him that the only
place they could use him was on the third shift, West agreed to work
on that shift. West reported for work on Monday, July 10, 1978
(Tr. 70). The working hours on the third nhift were from ll p.m. to
7 a.m. and the third shift was a maintenance shift during which the
miners performed duties such as rock dusting, roof bolting, rehanging
or extending ventilation curtains, and making repairs to equipment
(Tr. 71) .
32. Jackson Sturgill had been hired on May 1, 1978, to be the
section foreman on the third shift (Tr. 266). The reinstatement of
West meant that two section foreman would be working on the third
shift. Therefore, Doug advised Sturgil 1 that he was being promoted
to the position of mine foreman on the third shift and that Sturgill
should use West as an ordinary workman. Under Doug's instructions,
West would be required to act as an ordinary laborer because Sturgill
was told to assign West various tasks which could best be done by

568

two men, but since West was to be given only one man to assist in
performing the tasks, West would be required to do the work of an
ordinary laborer (Tr. 72; 268-269). Aft~~r West had done the work of
a laborer for a few days, he complained to Sturgill about being
assigned a laborer's work instead of a supervisor's duties. Sturgill
agreed with West that We~t was being utilized in an improper manner
and thereafter assigned at least two men to do any tasks delegated
to West. The assignment of at least two miners to assist West in
performing each job enabled West to work in the capacity of a supervisor. Sturgill stated that although he stopped treating West as
an ordinary laborer, his doing so was contrary to the instructions
which had been given to him by Doug (Tr. 71.i-; 291-292).
33. After West had been reinstated for about 1-1/2 months, Doug
told Sturgill that they could no longer afford to pay two section
foremen to work on the third shift and Sturgill was laid off (Tr. 279;
416; 1+22; 439-440; 458). About 2 weeks after West was reinstated,
Doug Sb.elton ::esigned as superintendent of the No. 6 Mine and began
to operate his own coal business under the name cf Shelton Coal Co1,1pany (Tr. l,16···ld7; 446-447). The name of the new 8uperinten<lent
hired by Ridley Elkins was Donnie Short (Tr. 80; 446; 671).
[NOTE:
West stated that D9ug left about 2 weeks after West was reinstated
(Tr. 79), but if that were correct, Sturgill would have been laid off
by Doug's successor, Donnie Short, whereas both Sturgill and Doug
agreed that Doug was superintendent when Sturgill was laid off (Tr.
279; 439-44-0). The actual date that Doug left is immaterial to the
real issues in this proceeding.]
34. West first stated that he only complained to Short about
three things:
(1) the condition of the roadway on the surface leading
to the No. 2 portal, (2) the condition of the intake haulageway, and
(3) the disparity in West's and Sturgill's pay, that is, West said
that he only received his regular salary after reinstatement of
$2,100 per month regardless of the number of weekends he worked,
whereas every time Sturgill worked on Saturday., he was paid $100 in
additior:. to his regular salary (Tr. 217). At a subsequent time in
his testimony, West stated that he also complained to Short about
the fact that the ventilation curtains \Jere down at the face each
day and that temporary supports were not being set (Tr. 239). Short
denied that West had made any safety comp la int s to him (Tr. 681).
Short also denied that any foreman had complained to him about
curtains being down on a daily basis (Tr. 697).

35. Ridley Elkins on September 28, 1978, discharged West for
having fail-ed to perform his duties and for having been found asleep
on the third shift which began at 11 p.m. on September 27, 1978, and
ended at 7 a.m. on Septembe1~ 28 (Tr. 451-452). West denied tlwt he
was asleep (Tr. 91), but he did admit that he had failed to make any
methane checks in the mine after approximately 5:30 a.rn. even though
four miners were roof bolting in two different headings up to about

569

7 a.m. (Tr. 84-85; 623; 647; Leland Maggard's Deposition, pp. 19-20).
West said that his failure to make. the methane clwcks d:id not expose
the miners to any danger because no methane had ever been detcc tecl in
the No. 6 Mine and there was no likelihood that methane would be
released unless actual production was in progress, and t~e only activity at the time he failed to check for methane, was roof bolting (Tr.
92; 223).
36. Based on credibility determinations hereinafter explained,
have made findings of fact for the events which occurred on the
third shift beginning on September 27, 1978. The facts set forth in
these findings of fact are based on the testimony of all 1-he men who
worked on the third shift, namely, Robert L. West (Tr. 81-101;
219-253), Donnie L. Dockery (Tr. 596-615), H. Doyle Phipps (Tr.
618-636), Earl Houseright (Tr. 638-653), James Kelly (Tr. 654-669),
and the deposition of Leland B. Maggard. Leland Maggard's deposition
11
will hereinafter be cited as 11 Dep., p.
I

(1)
The third shift was a maintenance shift on which no coal
was produced. The sole function of the maintenance shift was to get
the mine in proper condition for producing coal when the day sh~ft
reported for work at 7 a.m. On the night of September 27, 1978, tht~
primary work which needed to be done was roof bolting and prcp2ration
of materials. for advancement of the conveyor belt (Tr. 81-·82).
Therefore, all ·five of the men on West's crew worked on the surface
of the mine for about an hour. They loaded supplies and prepared a
new section of conveyor belt. Around midnight, West sent fc1ur of the
men underground to install roof bolts. There \.;iere two roof-bolting
machines in the mine. Leland Haggard ran one of the machines and
Earl Houseright acted as his helper. Doyle Phipps operated the other
r.oof-bol ting machine and James Kelly was his helper (Tr. 619·-621;
638-639; 648; 655-656; Dep., p. 6).

(2) Donnie Dockery was what is known as the "outside man. 11
Generally, it was his responsibility to stay near the mine office so
that he could be of assistance in case of an emergency. He also
performed odd jobs such as sharpening bits. On the night of
September 2 7, West asked Dockery to accompany him and the other men
on his crew to the portal of the mine so that Dockery could splice
the belt which was going to be used in advancing the belt conveyor.
Dockery could perform his duties as outside man while splicing the
belt because there was a telephone at the portal as well as one in
the mine office. Dockery was inexperienced at splicing belts so
West elected to remain on the outside of the mine to explain belt
splicing to Dockery instead of going into the mine either to check
the faces before the men began roof bolting or to make the methane
tests which are required to be made every 20 minutes when equipment
is operating at the face (Tr. 599; 620; 622; 639; 643; 657; Dep.,
p. 10).

570

(3). West remained on the outside of the mine with Dockery until
5 a .m. at which time he told Dockery that he was going into the mine
to ob ta in the scoop so thnt the bel 1- they had prepared could be taken
into the mine for. use in advancing the· belt conveyor. While he was
underground, West went to the heading in which Maggard and Houseright
were installing roof bolts. At ·that time, West observed that Haggard's
cap light had become quite dim. West exchanged lights with Maggard
so that Maggard could continue roof bolting. West then was unable to
find an extra. cap 1 ight underground, so he went to the heading where
Phipps and Kelly were installing roof bolts and asked that Kelly
accompany him outside because West's light had become so dim by that
time that he could not travel without the additional illumination
pro·1ided by Kelly's light. For some reason not articulated in the
record, West de:termined not to take the scoop out of the mine, and
therefore Kelly and West walked out of the mine. If West had taken
the scoop of the mine, he would have found on the scoop an extra cap
light which was fully charged and usable (Tr. 597; 599; 616; 622;
640; 657; Dep. p. 11).

(4) I t was about 5:55 a.m. when West and Kelly emerged from the
mine. Kelly immediately went back into the mine to continue roof
bolting and West told Dockery that Dockery could return to the n.ine
office s'ince the task of splicing the belt had been completed. West
found himself w~i.thout a usable cap light. Since it was about 6 a.m.
when Dockery was allowed to return to the mine office and since it
taken only about 20 minutes to walk to the mine office, West could
have gone with Dockery to the mine office where he could have obtained
a fresh cap light. He could then have returned to the portal by
6:Lf0 a .m.
If he had done so, he could have made final methane tests
and could have perfonned a preshift exa.mination preparatory fr,r the
day shift' s entering the mine at 7 a .m. A period of only 5 minutes
is required to walk from the portal to the places where the miners
were installing roof bolts (Tr. 600; 631; 657; 661).
(5) At the time West told Dockery that Dockery could go to the
mine office, West stated that he was going to get into Phipps' Jeep
where it was warm. Phipps had parked his Jeep near the portal before
he went into the mine to install roof bolts. West had given Phipps
permission to leave early for personal reasons and West was expecting
Phipps and Kelly to come out of the mine about 6:40 a.m. It was
Kelly's practice to ride to and from work with Phipps. Therefore,
Phipps' leaving early required that Kelly also leave early. As it
turned out, Phipps and Kelly did not finish bolting the heading where
they were working until nearly 7 a.m. Consequently, Phipps and Kelly
did not come out of the mine until 6:50 a.m. They did not see West
when they first came out of he mine, but when they reached Phipps'
Jeep and started to open the doors, they found that West was asleep
on the back seat of the Jeep with his feet stretched out between the
two front bucket seats (Tr. 600; 617; 623; 625; 650; 658-659).

571

(6) Maggard and Houseright came out of the mine about 7 a.m.
They do not now recall how they returned to the mine office on that
particular morning (Tr. 647-650; Dep., p. 20). West went to the·
mine office, turnPd in his cap light, and filled out the preshift
book (Tr. 95).
37. Donnie f;twrt, the superintendent of the mine on
September 27 and 28, 1978, was asked by Ridley Elkins to interview
Phipps and Kelly and to make a recommendation as to what discipl·inary
action should be taken with respect to West's actions on the third
shift which began at 11 p.rn. on September 27, 1978. After Short had
heard their accounts of what had happened on the third shift, h0
recommended that West be discharged because he said that West had
failed to look after the health and safety of the miners since he had
failed to go underground in order to make methane tests and had failed
to perform a preshift examination. Short said that performance of
the aforementioned duties is necessary to assure that the mine is i11
a safe condition. Short stated that if an emergency or an accident
had occurred, West would have been in serious trouble for having
stayed on the surface of the mine instead of doing his duties underground. Therefore, ·short recommen::led to Ridley that West be dis··
charged for being asleep and for having failed to perform his dulies
(Tr. 673-680).
38. On September 28, 1978, the day after he had been discharged
for the second time, West went to the MSHA office in Norton, Virginia,
and filed a second discrimination complaint against El kin:> Ene-rgy
(Exh. 3). The discrimination comp1 a int stated that Ridley Elkins had
discharged West for allegedly failing to perform his duties and for
sleepins on the job. The complaint alleged that the discriminatory
action was that West had been discharged on the basis of a frame-up
deal because West had asked about vacation pay and extra pay for the
weekends he had worked and because management could find no fault with
the way he had performed his job after his reinstatement (Sxh. 3).
At the hearing, West claimed that his discharge was merely a culmination of the harrassrnent which he had received after his reinstatement
(Tr. 102).

39. The discrimination complaint filed by West on September 29,
1978, requested a cash settlement without reinstatement. At the
hearing, West stated that since Donnie Short had now become the
superintendent of the No. 6 Mine, he would like to be reinstated in
addition to receiving the salary he would have earned if he had not
been unlawfully discharged. West stated that he was now asking for
reinstatement because he felt that he could work with Short and be
permitted to comply with the health and safety regulations, whereas
he could not have done so if Doug Shel ton had continued to be superintendent of the No. 6 Mine (Tr. 103). The complaint in this proceeding was amended at the hearing to confonn with the evidence
(Tr. 323-325) .

572

Respondent's brief (p. 2) argues one primary point, namely, that
for complainant to prevail in this proceeding, the preponderance of
the evidence must show that complainant was discharged because he
made safety cornpla ints. Respondent cont.ends, however, that when
complainant's testimony is read in light of th~ testimony of other
witnesses, it will be seen that complainant did not carry his burden
of proof because every major contention made by complainant is contrad icte<l by the testimony of other witnesses. As I indicated in
the paragraph preceding my 39 findings of fact, supra, many of the
witnesses disagreed with each other with respect.to various facts,
but f;everal witnesses supported West 1 s claim that he had 1'1ade complaints about safety (Finding Nos. 15-18, supra). Since respondent's
brief relies almost exclusively on the witnesse-s• contradictions for
its argument that complainant failed to prove that he was discharged
for co:nplaining about safety, I shall hereinl'J.fter consider each of the
factual contradictions set forth in respondent's brief.
3moking. Respondent 1 s brief ( p. L1.) states that Patrick Sturgill,
who was thethird-shift section foreman when W!.'st was reinstated,
testified tbe.t Doug Shelton, the mine superintendent, approved of
Sturgill's searching the men for smokers' articles and that Doug told
Sturgill not to allow the men to smoke. Respondent correctly cites
the only transcript r2ference which shows that Doug approved of'having
men searched for smokers 1 articles. I have, howe.ver, found that
Sturgill's testhnony as to searches for smokers' articles is not
necessarily in Doug's favor.
It must be realized that Sturgill was
not hired by Doug until after West had filed liis first discrimination
complaint. A copy of the discrimination complaint (Exh. 2) was served
on Doug and Doug therefore knew that one of the safety issues West had
raised in the complaint was the fact that West intended to stop the
men from smoking in the raine. Doug's own testimony shows that he was
6pposed to seGrching the men for smokers' articles and that he
deliberately failed to follow the law with respect to searching the
men for smokers' articles (Tr. l~24-L:-25). Dour; did, however, urge the
men not to smoke in the mine (Tr. 415; 422).
The fact that Doug stated unequivocally in his own testimony
that he did not approve of searching the miners for smokers' articles
gives stron3 support to West's claim that Doug had instructed West
not to make searches for snokers' articles (Finding No. 21, supra).
Therefore, I find that it was not inconsistent for Doug to change his
position with respect to searching the men for smokers' articles
after West made that an issue in his discrimination complaint.
Inasmuch as three different witnesses supported West's claim
that he c0mplained about the miners 1 being allowed to smoke in the

573

mine, I find that West did complain to Doug about tlw fact that the
miners were smokinr; in the mine (Fin<lings Nos. 16 through 18, supra).
I am aware tl1.'.lt Doug denied that West lrnd cornpl.::ined to him about-smoking (Tr. 351). I conclude that Dn~g's testimony to that effect
lacks credibility for several reasons. First, other m<"n stated that
smoking was being done in the mine and they agreed that West was
opposed to it. Second, on~ of the miners stated that he had never
seen anyone make a search for smokers' articles while he wAs work:ing
at the mine (Finding No. 21, supra). Third, D0ug could hardly admit
that West had complained about-smoking to him b2cause that was a
violation which he said that he knowingly ha<l committed. If he had
admitted that West complained to him about smoking, Doug would have
given West enough corroboration to prove one of the allegs.tions in his
discrimination complaint.
I do not think that transcript page 300, cited on pagP 4 of
respondent's brief, supports respondent's claim that West "had been
on probation at another time for allowing men to smoke." The testimony at page 300 of the transcript states that West disallo~·1ed
smoking at another mine \lh.ere he worked, but that the superintendent
at that mine also had told him to let them smoke. The witness at
page 300 specifically stated that West had told him that West could
not "put up" with smoking in the mine (Tr. 300, 1 inc 4).

(p.

T~1e reliance in respondent's brief
4) on the testimony of
Morrell Mullins is misplaced because Morrell Mullins must be given a
very low credibility rating. As I have indicated in Finding Nos.
28 and 29, supra, Morrell Mullins is now working as mine foreman in
a coal mine which is now owned by Doug. Morrell' s testimony shows
that his statements were intended to support Doug's testimony in every
respect and Horrell' s testimony is so full of exaggerations as to make
it suspect on its face. For example, M:orrell's claim that Doug was
"onto him" nearly every morning about the miners' smoking is a great
distortion of Doug's own testimony and is completely contrary to
John Ed Mullins' testimony to the effect that Doug did not often telk
to the miners about smoking and that no searches for smpkers' articles
were made (Tr. 167).
Au~~r h~es.
The preponderance of the evidence shows that West
did complain abqut having driven into an auger hole (Finding Nos. 14
and 15, supra). Respondent's brief (p. 5) correctly notes that Doug
and Morrelltestified that there was a drill on the back of the scoop
which could be used to drill in advance of mining to test for the
existence of auger holes. Doug's testimony, however, shows that the
drill was used for anchoring tailpieces and he said that they had to
hunt for it every time they wanted it (Finding No. 25, supra). The
fact that they had to hunt for the drill supports a findio.gthat it
was not used to drill in advance of mining with the regularity claimed
by Morrell Mull ins. Moreover, the fact that Doug received a notice
of violation for failing to have the auger hole·s identified on the

574

mine map i s anothPr indication that the drill was not being used
because there would have been no point in us~1a it unless they had
r..:ason to believe that the auger holes were fairly close to the r_lace
where they were mining coal.
Here again, I find that Doug's denial of West's havinlj mentiorwd

the auger hole lacks credibility because Doug had been given a notice
of violation for failure to show the auger holes on his mine map. If
Doug had admitted that West discussed n0~er holes with him, he would
have been providing a great deal of corroboration to West's claim th<:t
he had been discharged for complaining a~out safety.
Providing a Man on the Surface. TI1e preponderance of the evidence7upport-~ U~-cTaim in respondent's brief (p. 5) that West went
undeq;round on at least one occasion without a person befr1g on the
surface who could have su:.inoned help in an emergency situation. As
Finding No. 4, supra, sho\.'8, West did tell Doug that a. person 8liould
be on the surfac(-;:-~hen mjners are underground, but West did not tak(,,
that position until after he was injured by a rock falling on him
on February 28, 1978. On that dRy, West and two other miners, John Ed
Mullins and Morrell Hullins, had gone undecground at a time whe11_ no
one wcis on the surface. West claims that Doug wa.s on the surface
when he and the other two 1ainers went unclerground on reLruary 28, but
Doug, Horreil, and John Ed all testified that Doug was still at home
when they went uuclerground on February 28.
I have detected nothing in John Ed Mullins' motivations which
indicates that his testimony lacks credibility. Hort>ove:r, bis testi·mony is consistent throughout. Therefore, I find the-.:: John Ed's,
Horrell's, and Doug's testimony is morP. credible than West's for the
fact that West did go underground on February 28, 1978, when there
was no one on the surface (Tr. 159; 356; 568). West did not take a
firm position about having a person on the sur_face until after he
was injured (Tr. 49; 150). Since Doug agreed after West's accident
that a person should be on the surface at all times when miners were
underground (Tr. 390), I find that West did not make a complaint about
safety with respect to having a person on the surface which was any
different from management's position regarding the stationing of a
person on the surface while men are underground. Finding 36(2),
supra, for example, shows that it was manag<!ment' s practice to have
a man on the surfa.ce when coal was being produced. The failure of
management to have a man on the surface at the time West was injured
occurred at a time when the mine was inoperative during the miners'
strike (Finding No. 4, supra). After West's ace ident, management
agreed that a man should-th~reafter be stationed on the surface when
men were unclerground reganiless of ,.1hether coal was being produced
or not.

Ventilation. Respondent's brief (pp. 6-7) correctly argues that
while West may have complained to Doug about the failure of the

575

miners to maintain ventilat:ion curtains, West's shift was just as
guilty of failing to maintain the curtains as the section foreman
on the first shift was. There is- .':imple support in the record for
making the forego ins conclusion. Robert Hi 1 ton, who operated a
roof··bolting machine on West's shift, stated that the ventilation
curtains on West's shift were constantly knocked down by the shuttle
cars and that the curtains were kept rolled up most of the time (Tr.
298). Doug stated that the day shift cnmpl~in~d about the nisht
shift knocking the curtains down and the night shift complained about
the day shift knockinr. the curtains down (Tr. 415). Horrell, who
was the day--shift foreman, agreed that the miners on his shift
allowed the curtains to fall, but he also claimed that the miners
on West's evening shift were just as bad about knocking the curtaiQs
down as the miners were on his day shift ('i\·. 558; 571; 586). As I
have previously indicated, I believe that rforrell Mullins' te.stb:ony
should be given a very low credibility rating, but since Robert
Hilton also testified that the miners on West's shift allowed tbe
curtains to lie on the mine floor or rollerl them up to the roof,
there is corroboration in the record to support Morrell's statements
as to the ventilation curtains.
Respcindent's brief (p. 6), inappropriately cites John Ed Hullinf; 1
testimony to support a claim that Elkins Energy stT.pplied fly curtd.ns
when West asked for them. I believe that John Ed answered the ouestion about fly curtains at transcript. page 159 in a generic sense
because ventilation curtains were supplied in ample quantity, but fly
curtains were never provided at all. Doug himself agnoed that he h2d
refused to provide fly curtains on two grounds, the first being that
they were not needed, and the second beinr, that their cost was
excessive (Tr. 371). Robert Hilton testified that he heard West
complain about the need for fly curtains, but he said that no fly
curta:i.ns were ever provided (Tr. 298). Finally, West himself stated
that fly curtains could be dispensed with so long as ordinary curtains
were made available and were properly used (Tr. 25).
In addition to the testimony cited above, Hugh Stidham and
John Ed Mullins testified that they had heard West complain to Doug
about the lack of proper ventilation (Tr. 113; 148). Despite th~
evid.ence showing that West failed to provide proper ventilation on
his own working shift, the fact remains that West did complain about
the inadequate ventilation which. constant.lv existed in the mine. The
superintendent had been a former Federal ii~spector and knew that the
miners were being exposed on a continm;l basis to respirable du3t.
He knew, or should have known, that constant exposure to respirable
dust could cause the. miners t.o contract pneumoconiosis, but he di.d
nothing to correct the deplorable ventilation conditions which had
been called to his attention.
It is, therefore, not surprising that
West· did not succee<l in restoring adequate ventilation on his o"\m
shift when the 11line superintendent gave him no ~upport in seeing that
the miners maintained the curtains in proper position. Inasmuch as

576

Doug was iridifferent about providing proper ventilation (Tr. 309),
I conclude that he would have resented West's complaints about venti.lc:tion and i;.;ould have wanted to free himself of a sect.ion foreman d:10
kept discussing a subject which Doug did not want to hear about
(Finding Noc. 14, 15, 17-20, 24, aad 28, su~ra).
Failure to Install Temporary Supports. Respondent's brief (p. 7)
correctlystate~that ~fest -failed -tO"-huve ·-temporary supports erected
on his own shift. Even though West did discuDs with Doug the failure
rif the miners ori the first shift to install temporary supports, West
failed to protect the miners from roof falls on his own shift because
he did not require that temporary supports be erected on his shift.
The most da•naging testimony with respect to West 1 s perfonaance as a
section foreraan CD.me from Robert Hilton who was a roof bolter on
West's evening shift. He testified that temporary suppor~s were
supposed to be installed but that they did not practice following
the law. HiI ton said that they did not. have timbt'rs underr;round to
use for roof support and that no timbers were brought in for that
pL!rposs-. Hilton stated that the roof was never supported uni: il such
time a& he entered a place to install roof bolts. Hilton testified
that he had to install jacks in each place before he bolted (Tr.
301-302).

Since the roof-control plan for the No. 6 Mine required that
tempnrary supports be installed within 5 minutes after the co~l w&s
removed, it was essential that temporary supports be inst~lled
rapidly (Finding No. 22, supra). Donnie Short, who replaced Doug as
mine superi.:itendent at the-No. 6 Hine, stated the.t once the slc2te hRs
separated from the roof, it is better to pry the slate ~own or let it
fall than try to install temporary supports under the loose slale
(Tr. 699). Therefore, the miners were unprotected day after day in
the No. 6 Hine b c"cause no effort was being made to inst al 1 temporary
supports. Additionally, Earl Houseright, a miner oa West's third
shift after West's rein statement, test ifiecl that no supports were
installed in the working places until he placed temporRry supports
in the ~laces just prior to installing roof bolts (Tr. 652).
Houseri&ht 1 s testimony chows that the miners were continuing to ignore
the requirement that temporary supports be installed.
Another serious shortco;ning in the miners' failure to follow the
provisions of the roof-control plan was that the mine superintendent
and the section foremen were obligated to explain the provisions of
the roof-control plan to the miners. Yet, West stated twice that h:~
did not know whether six or eight temporary supports were required to
be installed and Houscright stated that he did not know how many
temporary supports were required (Tr. 39; 248; 652). It was Doug's
duty as superintendent to know the provisions of the roof-control
plan and to explain the plan to the section foremen and the m~ners so
that the plan would be followed. Additionally, West claimed that he
had to send outside the mine for a supply of timbers when he did want

577

to support th0 ,.,orkiag pla_ces (Tr. 255). Section 75.202 provides
that a supply of timbers shall be kepL underground nf'ar the workin2
faces and Doug should have. insisted that timbers be kept underground
at all times.
Despite West's shortcomings in fol ln\·1ing the p1:ov1si.ons of the
roof-c0~trol plan, Doug's own testimony shows that W2st did complain
to him about the failure of the min~rs to install temporary supports
(Finding No. 2!;, supra). Hothing exposed the ri-.iners to greater danger
than the failure ~se.t temporary supports, yet. Doug took no action to
see that the roof-control plan was co;npl ied with.
It is not surprising tl1.:;_t West fa.iled Lo see that the provisions of the roof-control
!='lan were complied with on his ovm. shift: when he found that the mine
superintendent was indiffer~nt about seeing that the provisiors of the
roof-control plan were enforced.
In such circumstances, r· conclud(~
that Doug would have been motivated to free himself of a section
foreman w-ho kept re;ilinrJing him that the roof-control plan was not
being fo 11 owed .
Hindrance to I'Toduct10n. Respondent's brief (p. 7) correctly
argueSthat the- evide~~e-faTl s to support West's claim that he \i'G.e
discl:·tr[;ed, in p.:lrt., because his insistence on follo\ving safety regulations was a hindrance to production. West said that his following
the safety regulations resulted in less co2l production on his shift
tlHm was achieved on the day sbift_
FL1ding No. 19, supra, SlN~narizes
the evidence \,·~th ·cespect to W2st' s clc.im 2bout bis being a him:lrc.:nce
to production and shows that there is no merit to his claim that he
was discha1~ged because he was a hindrance to :_:iro<luction.
Dune Buggy Episod2. Respondent's briPf cioes not discuss Fest's
claim-that he c:idvise-d Doug that it was a violation of the sa.fety
standards for Doug to have ridden a gasoline-powered dune buggy into
the mine (Fi:::ding !fos. 14, 17, 24, and 29, supra). I find that West
must be givPn conside;-able credit for h.::cving hc;d the courage to tell
the mine superintendent that the superinter.clent was violatin~ the law
when he rode a dune buggy into the mine. Doug, John Ed Hull i;.ls, and
Morrell Mull ins all agreed that Doug had rj_dden the dune buggy into
the mine. John Ed stated that he heard West tell Doug that he ought
nut to have ridden the dune buggy in the mine. Horrell personally
did not say anything to Doug about having ridden the dune buggy in
the mine.
I find that West's criticism of the mine superintendent
for riding the dune buggy in the mine mGy well h11ve been the type of
complaint which would have made the superintendent want to disc.barge
a section foreman who had the audacity to suggest to the superintendent that his actions were unsafe.
The preponderance of the evidence supports the claim in MSHA's
brie·f (pp. 3-4) that West made safety complaints to Doug, the mine
superintendent. As the preceding disc1,1ssion ha_s shown, West complained about miners' smoking in the mine, about the failure of the

578

miners to clJ:-ill in advance of minjng opr->rations so as to d·iscover
augf:r holes befo-::-e the contir.uous-·mining mac:1ine cut into them, .1bout
the mfoers 1 al lo\-r:inr; the Vl'Hti lat i.on cur ta ins to f:lll to the ground
so that adcqu3te ventilation was not provided at the working faces,
about the miners' failure to ins~all temporary supports.after c~ts
of coal had been removed, .?,I"Ld about the> r.1inc superi..r:tendent 1 s having
driven a gasol ine-pc;\·i<:·n>d du1w buggy ·lnto the minP.
It should be
noted, however, that HSHA's brief incorrectly states c:t the top of
page 4 that ~est overruled other managcMcrit personnel ~10 wanted to
cut aro~nd old auger holes (Tr. 301). The testimony at page 301
shows t!iat West d is;;greed with other personnel Bbout the tir.:.ing of
cuttieg a breakthrough. That incident tad nothing to do with ;weer
holes.

Respcndent' s brief (p. 2) contends that West can prevail in this
proce•::-ding only if the prepondera~ce (Jf the evidenc:e shows that. West
wa~.: fired hecause he crnr.rlained about safety.
RPspondent also claims
that West must succeed on the strength of his own case and c~~ilot win
~pon any weaknesses in respondent's case.
I have ~lready found in
the p(eceC.ing ·discussion that We.::'.: did coi"'lplain c:;bo:.1t safety, but as
respondent notes, West cc.:.n win or,ly if th2 evidence sho\·Js that West
was laid off bcc.::use he cor.i.plc-:ined ;~;_:oc't safety. 0;1e: is not likely
to find a contested <liBcr"ililination c.:.:.::.;e in which tl:e respor:d\'l"i.t agrees
that it leid off or dischurgeJ ~~ employPe for enfaging in an activity
which is protected under thc. Act. Therefore, respondent is not
entirely correct in argu~1g th3t West's ability to prove his cas2 may
not to some extent depend on the weakness of respondent's case.

In Finding Nos. 4 through 12, supra, I have given the reasons
which were advanced by respondent for -ia~dng ~..\~st off on April Li-,
1978. Respondent first claimed th&~ ~est was being discharged
because Ridley Elkins l::;d determined to lay off all the minr:rs on the
second shl.ft, but when West reported to the mine to pick u~·· his
pers01rnl belongings, he found th[1t all the rainers who norui.0lly worked
on the se::ond shift were present at the mine ancl ready to Fork the
second shift e}:cept for hest and one repairma;.1 ,.;rho had beer. laid off.
West was then advised that only the m211 who had be~n hired to \Wrk on
the third shift were being laid off. A few dayb later the repairman
was reemployed as a belt man, but West. was not offered a job in any
dubstitute capacity. The reason given at the hearing for laying off
West was that respondent had suffered financial losses and ne2ded to
cut expenses through discharging West and the repairman.
Resp..-:indent
did not demonstrate any savings through the discharge of the repairman
because he was reemployed a few days later to work as a belt man.
While the repairman was not reemployed in the same capacity, the
saving to respondent was insig-nificant because the only saving fro:n
discharging the repa i.rman and rehiring him was the small d i.fferential
in pay which he received as a repairman as compared with the salary
he received as a belt man.

579

The laying off of West saved respondent no money bec~use
Don Shel ton, \vbo was the mine superintendent's brothe:i.·, uas Horl:in;; o.~:> a
helper for the operator of the continuous-miniDg machine. Don had
obtained section for0man's papers on January 10, 1978, and Doug, the
mine superintenden~ promoted his brother to the position of section
foreman to fill the> section foreman's position whicb w2s left vacant
when West was laid off. Of course=>, \vhen Don Shelton was made section
forenrnn, "it was necessary to obtnin another ern;,loyee to take Don's
place as 1H:lp2r for the operator of Lhe continuous-miuin;?, mile:hine.
Tlwrefore, the': net saving to respond,~nt from L::ying off Hest was z.ero
because Don S~elton had to be paid the same salary West was receiving
before West 1-1~s_disc]:rnrgec1 _<ind th2 pers.on who toc>k Don's pGs1-t1.0:i -fr-S
helper for the operator of the continnous-E1ir:·i·l1g machine had to be
pai<l the sE~e salary which Don had been receiving in the helper's
position.
Don Shelton 1~:Ltimately resu:rr1~d his job as helper to the op2rator
of the continuous-minir:g machine and a section forer1dn ha2 to he
transferred from another of Elkins Energy's mines in order to fill
the vacancy tbA.t had been created i:·lhen Don rctm:ned to his :hnner job.
In view of the circu;nstanc{~S described ab·;r.J:c" respondent's claii:: th2t
West was laid off ~ecause of a lack of work is simply not support0<l
by the preponderance of the evidenc~ in this proceeding.
Tl1P.re is support in the testimon·y of Rv1'f:rt Hilton for respon-..
dent's cL1im that West was hirc<l for the third shift (Tr. 307) and I
am willing ta accept respondent's claim to that effect. Tte evidence
shows, however, that respondent started the third shift within less
than a month after West was laid c•ff (Tr. 4L~3). Although \.12st i-.ad
been advised when he ·was laid off, that he would be called if a
vacancy occurred, he was not offered the position as sect.inn foreman
on the third shift whc'n that shift was begun. Doug explnined that he
did nnt ofir'1: the position to l</est because by tlu:~t time West had m;:,de
a number of statements about him that were untrue and he did not
think that he an.d West would be able to work together han.:.oniously
after those st8tements had been made (Tr. 397). Al though Doub
referred to West's complaints about having te~n paid only at half his
regular salary during the strike and to West's attempts to get two
at.her section foreman \·iho worked during the strike to join him i11 a
suit against respondent to collect the back wages allegedly due, the
evi~ence shnws that such activity by West had ceased at the time the
strike ended (Tr. 490). Therefore, I conclude that the primary reason
for Doug's failure to offer West n job as section foreman on the third
shift was that West had filed a discrimination complaint against
respondent on April 5, 1978, or the day after West was laid off (Tr.

404).
It is true .that Doug claims to have offc~red West an alternative
job at another mine owned by Elkins Energy, but West claims Doug only
asked if w~st would consider taking another job and West claims that

580

he 2greod to accept aD alternative position, b~t West says that Doug
nev0r did follow up the inquiry with a specific job offer. As to the
t\W diffen·nt ~~!:ories told uy W0st and Doug with respect to a job
offer, I fin;_; f0r t~·!O reasons that West's version is ;r;.ore credil;l('
than Doug's. First, at the time DDu.g called \fost with the alleged
offer of another job, Dot:1g also askPd VlPHt if \vest had filed a discrimination cornploi.nt against hi::.. l!.n app-r.op)-iate excuse for ca1 ling
West wou~d have been to ask if West would cons~deY taking ~nether job.
It would not ht!V<" Lu!n log i.c;:<l for Doug to h.:t"l~ offered West a
sp..:cific job 2.t: a ti.me when Doug wc:s ascertaining whether I-lest had
filed a d-iscrimination crn'.1plaint.
Second, Doug claimed th<:1t i·:est
d0cl i.ncd thr' job which ]Jou:; offered him and Doug testifiE:cl that one
of the reasons Wf'st z,ave for turninr, down the job offpr \·1Ds that Vif'st
said ther~ was tio point in his accepting a substitute job ~s section
f0reman at a min~ other than the No. 6 Mine ~hen the cocditio~s at
the altern~te mine were less desirable than they were at the place
where i'k·st was then uorking (Tr. 370). West wouJd h.2ve h<ld no reason
to decline 2n alternate position by saying that the alternate job was
less desirable Lh;tn ti1e position !1c then had wh(;n West wa.s then with-out e.ny job at all as the phone call fro:n Douc; h;A occurred or:
Apri: 5, 1978, or t1E: tl:-:y after West hacl be;>ri laid off by Douf,.

The.re n~2 othe-;... aspects of respondent's eviclPr1c~ i;.;hich <lo not
support respor·tden.t 1 s claim that We-r;t .was laid off on i\pril L;, 1978,
1
bf'.t:ausc~ of respe;,,dent. s decision that. a third sh·i.fi:. 1..'ould not 1::.e
ins::.itut.<"d at j::.1!e No. 6 Hine until coal production a.ft.er the str:ike
incre:iSC~'{ to tl:<! quantity of co.«l ,<,:ch w~s be-ins producPd b~fore the
strike (Tr. 3fl; 430; 457). The cvid·2nce shovs that respondent elai.m::i
t:o have disch<~rged West on Apri.i 4, 1978, because Hidlcy Elkins had
decided that he would be unable lo start a thi1d shift because of the
econc,:r11.C'. proL~lems which f.:iced him after the strike (l'ind:iags l:o. 11.,
supra). The f&cts shou, hoi;;-ever, that Ridley did. institute a third
shitT on or a]:.out lfay 1., 197f~, ai-:.d that tliP third shift was b•~z·1n
long befo:·e p1·oduct:ion at the lhJ. 6 U:i.ne hcd reg&in!''d the tonn2.ge
which had beeu ffi.stinta:ine<l before th~; strike (Finding Nos. J <>nd 9,
supr~).

Secticm 105(c) of the Act provides that no person shall discharge
or in any rr:d1ner discrieoin'.).te 2.gainst a m:i.ner because such miner has
made a compla:int under or related to the Act to an operator or en
operator's agent of an Rlleged danger er safety or health violation
in a coal milie. As the findings of fact and the discussioti above
have shown, West did rrw.kf! cor,1pla·!.nts about snfety with respect. to the
niners' smoking underground, w-i th rccspect to respondent.' s failm:-e to
see that drilling was don,'! in adv&nce of mining to determine whether
auf' ~ holes might constitute a hazard, and with -respect. to Ht=-st 1 s
telling the mine superintendent that it was a violation of the law

581

for the superintendent to ride a dune bu~~gy in the mine. The record shows
that \·1'est also discu~>sed with tlw ;n·;ne supcrinteudcnt tlis fact that vcntila··
tj on cur ta ins were not being usr~d properly and that te1'!1porary sur.::o: U;
were not being installed as required by the roof-control plan.
While I believe that Ridley Elkins kn.(:•·1 that \.Jest w::is making

safety complaints to the mine sup(;rintendcnt (Finding l·'.os. 26 and 2i,
thP Act do;:>s not require that \Jest prove that he complained to th!'·
operator.
Under. the Let, West ouly has to prove that i1c• complained
to t:l<f' operator's ar,ent. Ridlt>y personally tPst1fic~d that he
expected tbe :11incrs to m;ll<.e their crnuj)laints to his rnin2 supci:in-tendcnt and th3t the superintendent was responsible for acting on th0
complaints (Tr. t~44).
Th~s, th2;-e is no doc.ht but that 1-/egt r.iade
safety ccc:tplaints and raade ther:i. to the person to whom co•riplaints are
required Lo be made under section lOS(c).

If the reasons given by rEsp0ndent for laying We~t off on
April 4, 1978, had been supp0rted by the facts, I \.;.:)uld h.<:;ve had to
have found that Wc•r;t ~·:as d i.scha.::·r,eJ fol~ reasons which Clre not protected by secLion 105(c) of the Act. As I hnve demonstrateJ in th0
discussion above with respc!Ct to l;iC reasons giv,~a by recpondent fo:r
dit:cb..:irging hc:st, tho1>e reasons v.'i.1.l it•it stnEd clor:l~ examination
without revr~a.ling that tile r.:asnus gi:·Jen for laying Wer;t off are
flimsy cir.cl ur,eonv-Lncing.
In thP r:.1.:-:,:ence of any convi11c:i.ng n~aso,.s
[01· dische:t);it'<g \-~est, I am :ceqt!ir<:d to scrutinize the evidence to
cietermi.ne if the real rea1,on fo;_· disch<:rgi11g him resulU~<l fr:;m his
co1~ 1 plnint.s

fii"...,out sc~fct.y.

While it is truP that West acco~plished little in chafiging the
rrnne Sl1pe1_·intc1iclent' s inriiffe1:c1;:-. att·itude with n::cpect to ventilation and roof support, the fact r0maius that he did try to i~prove
saf•:~-y conditioi:1s al the Ho. G J:·~ine cit a. time xdH'n Doug Shelto11, the
mine r:;;perintendent, W.'.1S blatc:ntly cli3regard ing thC' mining lm:r-;. As
has been shoFn abov\:~, Doug admitted t!1at he violated the ixinir~g la\·'s
by f&iiing tn see that the miners wc:re searched for smokii1g an.iclet;,
by delibPratoly not coming t0 we_ k on Febru~ry 28, 1978, so as to br
on the surfc_ce wht>n he knew that mine1'.s had gon8 underg;:ound, .snd by
delibe~·ately driving a dune buggy in the mine 1:1hen he knew tha.t he was
creating a hazard by doing so. The fact that Doug kneD the v~ntila
tion curtains were not being used properly and knew that terr.porary
supports vF~re not bei11g installed a;;d did nothing 2bout it is an
additional reason to conclude th~t Dnug was not upholding the mandatory health end safely standards in any way, except for hi.s cl<.:.i:,,
that L-:: Jici tell the mjners that they ought not to smoke unJ.2rgromtd.
Since the evidence shows tho.t Doug was not folJ.m·:ing the mandatory health and safety standards, I conclude that Doug would resent
having a mine foremai1 on the premises who kept reminding him of th~
fact that he was not carrying oul his responsibilities.
Since Doug
had bee· a Federal inspector before he became superintendent at the

582

si.:;:_i::_~)

No. 6 Min~, it is rensonable to conclude that he was aware of the
discriminatory provisions of the Act. Therefore, he knew that he
would have to give justifiable reasons for discharging West. If i.Je
had been able to support his claim that West was laid off because
of ~idley Elkins' decicicin to postpone instituting a third shift
until production after the strike reached pre-strike levels, I would
have been able to find that West was discharged for reasons other
than West's having engaged in protected activities. Since the facts
do not support the reasons Riven by Doug for discharging or laying
West off on Api.·il l~, 1973, I must find and conclude that West was
actually discharg0d because of his complaints about safety.
As my discussion above shows, I am in general agreement with the
arguments set forth in HSHA' s bric~£ on p<i.ges 4 to 7, but the evidence
does not support some of the factual allegations made in that portion
of MSHA's brief. For exampl2, West stated that Don Shc-'-lton worked
as a helper for the operator of the continuous-mining machine (Tr. 20;
173)--not as the operator of the continuous-mining machine, as is
slated on page 4 of HS!L\ 1 s brief. It is doubtful that Don could have
vacillated between the joL of section foreman and his union job if
he had been the operator o-f, th~ cor!tinuous-mining machine because two
skilled operators of the continuous-rnining machine would not likely
have been avajlable at the mine, hut it is quite likely that more than
one miner could act as the helper to the operator of the continuousm in i_ng mdc h ine .
11SHA's Claim tlrnt West was Not Reinntatc~d to the Same Position
I disagree with the claim in MSHA' s brief (p. 7) that West was
not reinstated to the same position which he occupied prior to bis
being laid off on April 4, 1978. As I have demonstrated in my prior
discussiou, there is corroborating evidence that West was hired for
the third shift. His beihg reinstated as a section foreman on the
third shift was therefore in compliance with the order of reinstatement. Moreover, the order of reinstatement provided that West should
be reinstaled "to the position of section foreman at the rate of pay
and the same or equivalent work duties" (Finding No. 31, supra).
Although West was not at first given duties equivalent tot-hoi<"e which
he had prior to his discharge, that discrepancy in his reinstatement
was eliminated after Patrick Sturgill, .the section forer:tan on the
third shift at the time WP.st was reinstated, was laid off. Since
West had originally been hired to work on the third d--, ~ tt and was
reinstated as third-shift section foreman, I find that respondent
complied with the provisions of the reinstatP.ment order. It is certain that West w:is working as the sole section foreman on the· thir<l
shift on September 28, 1978, when he was discharged for the second_
time.
The harassment which West clajms to_ have experienced after he
was reinstated as section foreman was the result of respondent's

583

having to utilize two section foreman on the same shift and I think
respondent should be given some consider.ation for having to deal with
a difficult situation without being unduly pr~cipitous in laying off
Sturgill so that West could be the sole section foreman working on
the third shift.
Failure to Pay West for Working on Saturday
MSHA 1 s brief (p. 8) correctly states that respondent paid its
other section foremen when they worked on Saturdays, but did not pay
West when he worked on Saturdays. Doug, the mine superintendent,
admitted that he did not pay West for working on Saturday, but Dou~
endeavored to justify his failure to pay Hest by saying that Sa.tu-ulc:y
pay was given only to miners who showed outstanding diligence. For
example, Doug said that he paid John Ed Mullins for working on
Saturday because John Ed was so devoted to seeing that the min(~ wns
in good condition that he would voluntarily come to the mine and vmrk.
on Saturday and Sunday just ·to make sure that the equipment w<ts in
good condition (Tr. 436). John Ed was an electrician--not a foreman-and John Ed stopped working for respondent because he found a job
that paid more money elsewhere (Tr. 163). Consequent:i.y, the loyalty
attrj11uted to John Ed may have been exaggerated by Doug. Although
Doug stated that he had paid Morrell Mull ins for worl~ing on Saturd:iy,
the record does not show what outstanding contribution Horrell made
in return for th~ extra pay he received for working on Saturday (Tr.
413). Additionally, Patrick Sturgill. testified that he received
$100 for each Saturday he xrorked. Doug justified the extra pay in
Sturgill's case by saying that Sturgill did a better job in completing ~11 of the duties assigned for the third shift than any other
section foreman he had ever had (Tr. 436). HSHA 1 s brief (p. 9)
correctly notes other evidence in the record showing that Doug was
not particularly pleased with Sturgill' s performance and that Doug
threatened to lay off Sturgill and everyone on his third shift if
the miners did not work more conscientiously th.::n they had been
(Tr. 2 7 9; 2 85) .
Moreover, the testimony of Ridley Elkins shows that he had given
Doug authority to determine when men should be paid for working on
Saturd.:1y, whereas Doug claimed that Ridley made the determintions as
to \'7hich men should be pa id for working on Saturday (Tr. 19; 365;
458). It is true that not everyone who v10rked on a \·!eekend received
extra pay. For example, Doug himself did not receive extra po.y for
working on Saturday, and neither did Dale t-~eade, but neither of them
was a section foremen and Meade was a part owner of the mi.ne (Tr, 348;
413), so the fact that th2y were not paid for working on Saturday
hardly explains why West was not paid for working on Saturday while
other section foremen were paid for working on Saturday. If payment
for worki'-1g on Saturday had been based solely on merit, there would
have been no reason for Doug to have asked Sturgill not to tell West
that Sturgill was being paid extra to work on Saturday while West
was not receiving extra pay for Saturday work (Tr. 276).

584

I conclude that respondent did not justify its failure to pay
Such failure to pay West for working
on Saturday was part of the pattern of discrimination shown toward
West and respondent will hereinafter be ordered to pay West for the
Sa!·urdc:.ys he worked during his ternporary reinstatement.
West for working on Saturd.::y.

!uificient_Grounds Were Shown for West's Discharge on

Septe~ber

28,

1918
HSHA's bric>£ (pp. 9-10) argues that Elkins Energy had insuffident grounds for discharging \vest on September 28, 1978. West was
discharged for sleeping on the surf-:_;ce of the mine and for failing
to do his duties as section foreman on the third shift ~ii.ch r&n
from 11 p.1-:!. on September 27 to 7 a.m. on September 28, 1978. MSHA's
brief alleges that West was not allowed to tell his side of the events
wtd r:h occurred on that third shift, but West stated in his d iscriininat ion complaint that 11 1 explained to Ridley Elkins in every detail the
happenings cf TIY shift" (Exh. 3 p. 2). West further stated in h-is
discrimination complaint that after he had finishc:-d his explanation,
Ridley asked bim (1) why he did not get a replacement light, (2) why
he d:id not take his outside rr.an' s light, and (3) whether he k1ww that
some0n~ on his shift was drinking beer (Exh. 3, pp. 4-5).
Therefore,
Hest's own admissions clearly show that West was not only permitted
to tell "his side" of thP events, but was asked questions about
several aspects of his description of the events vhich occurred on
September 27 and 28.
NSHA's brief (pp. 9-10) also contends that the testimony of the
five men who worked on West's shift is so contradictory as to be
almost meaningless. As e;{amples of the contrc:dictory testimony,
MSHA' s brief refers to the fact that Kelly was of the opinion that he
and Phipps operated the only roof-bolting machine ~iich w2s used that
night, whereas two other miriers (Hagge.rd and House:right) said that
they were operating a second roof·-bol ting machine. Kelly testified
that the continuous-mining machine h:is to be serviced each night. Hen
on the second shift usually work over into the third shift to take
care of servicing the continuous-mining machine and tb?y are generally
assisted in that work by Houseright. After the servicing of the
continuous-mining machine has been completed, which is around
2:30 a.m., llouseright does other work. Kelly's testimony clearly
shows that he did :-iot specifically recall what Maggard and Houseright
did on the night of September 27 and that his statement about the use
of only one roof-bolting m&.chine on the night of September 27 was
based on what the men normally did--not on his recolll~ction of what
they actually did on September 27 (Tr. 666-667).
Haggard was the only one of the five men on West's shift who
corroborated West's claim that he went underground at all before
5 a.m. on the night of September 27 and rnorni~g of September 28.
Although Haggard agreed that he saw West underground ebout twice

585

before 5 a.m., Maggard's testimony otherwise C(>ntradicts West's own
account of \·1hat happened on thP night o:t September 27. When~as West
and the four men (J11 his shift stated th::it West anJ.the entire·cre\·J
worked outside the mine until about midni~;ht (Tr. 82; 219; 597; r)j6;
620; 639; 656), Maggard testified that all the men went directly
underground without doing any work on the surface (Dep., pp. 6-7).
Whereas h'est said that Haggard and Houseright helped service the
continuous-mining machine until about 2:30 a.m., and therefore would
not have seen West.make nethane checks before 2:30 a.m. (Tr. 8.1+; 224),
Maggard and Houseright testified that they started roof bolting as
soon as they went into the 111ine and H::iggard said that he saw West
about twice beforf' lunch (or 3 a.m.) while he and 1:-louseright \,'ere
operating a roof~bolting mucL-ine (Tr. 639; Dep., p. 8). Moreover,
while Haggard stated that he saw West about t\dcc~ before lunch ti.me,
Maggard specifically stated that West did not make any methane checks
1.n the lwading where he and Houseright werf' roof bolting (Dep.,
p. 10).
Another e)rnr:iple in HSHA.' s brief of the "meaninglPss" testiwony
of the men on West 1 s shift is the claim that whereas Kelly testified
that he Cdme outside .with West and did not n:call any conversat<oa on
the surfrc(', Dockery recalled that when Pc Gt and Kelly came out of
the mine, West told Dockery to return to the mine office and that
Dockery said that West and Kelly were still standi11g at the portal
when Dockery left to go to the mine ()ffice (HSHA's Hr., p. 10).
In my opinion, Dockery' s testimony rat.es extremely high in
credibility. He specifically looked at hi.s watch and knew wh,_:m West
went underground (1r. 616). Dockery refused to discuss aspects of the
events of We3t 1 s discharge about which he had no direct knowiE:dge ('J"r.
604). Docke~y specifically stated tha~ he could not be certain that
West told Kelly to go back into the mine, but he was certain that West
told him to go to the mine office (Tr. 609). Moreover, Dockery 1 s
statement that West told him that he (West) W<lS going to get up in
Phipps' .Teep where it wcis warm (Tr. 617) i·ms as detrim~ntal to I-Jest's
position as any testimony given about the events of September 27 and
28. Yet, Doe;kery did not make that detrimental statement until. l·fSHA' s
counsel, during recross-examination, specifically asked Dockery w-hat
West said he personally was going to do after West had instructed
Dockery to return to the mine, office.
If Dockery had set out in the
beginning to testify adversely to \kst, it is fairly certain that he
would have managed to use West's statement about getting into the
Jeep where it was warm as a part of his direct testimony.
I have seriously and painstakingly ccnsidered West's claim in
his disc.i:imiirntion complaint that he was the victim of a frame-up by
management as to the events of September 27 and 28. Hy detailed
examination of the testimony of all witnesses lead::; me to conclude
that my finding No. 36, supra, correctly states what actually happened
on the night of September 27, 1978. Among the factors which have
caused me to reject -the frame-c-up claim are the following:

586

(1) · lf Pllipps, who was a son-in-law of one of the owners of the
No. 6 Mine, had been told to look for a reason to discharge West, it
is logical to assur.1e that Phipps would have directly reported the
matter of West's being asleep to his father-in-law rather than tell
his fether-in-law about finding West asleep only after his father-inlaw, who was visiting in Phipps' home, had kidded Phipps about sleeping all the time (Tr. 625-626).
(2) If the men on He st 1 s shi [t had been pen;uaded to agree on
a story Lo su.pport We:::t's discharge, there would not have b\Oen as
many minor v.:iriations in their testimony as there were. The important
aspects of the occurrences on the night of September 27 are generally
supp.:;rted by the testiraony_of all five men on West's crew. All but
Maggnrcl agreed that they work·~d on the surfac~ nntil about midnight
(Tr. 598; 620; 639; 656; Dep., p. 7). All hut Maggard sL~tPd that
West did not go into the mine until 5 a.m. (Tr. 597; 616; 621; 656).
Three of the rnc~n \·1ho worked unde~~grouncl, including Eaggard, unequivocally st.:"!tcs th&.t West made no methane checks a.f:: any time in the two
hendings where they wen· roof bolting (Tr. 67.2; 640; Dep., p. 18).
None of the four men working undergr.chH;cl ever saw West undc-rgrou;i<l
afteJ. 5:30 a.m. and therefo;:·e West cou1d not have mrcde a pr0sh::_ft
exam:i_nation before th(~ day shift enter:~d the min2 (Tr. 623; 641;
657-653; Dcp., p. 13). West's own test.i.mony, of course, shows that
he did not make a preshift examin&tion, but he filled out the preshift
book.as ifhf' had (Tr. 90·-92; 95).
(3) West filed his Gecond di~crimination complRint on
Septcsber 29, 1978, or l day after the events of September 27 and
28, 197 8, which resu1. ted in his discha;~ge. That di :3crirninat ion complaint was received in evidence as E~hibit No. 3 in this proceeding.
Since: West 1 s account of the events of s,""ptewber 27 and 28 was written
in Exhibit 3 whil-e -the facts were~fresh in West's memory, they are
likely to be more accurate in the complaint than the facts given in
his testimony at the hearing which was held about 4 raonths after his
discharge. West's testimony at the hearing conflicts in several
respects with the facts set forth in Exhibit 3. TI1e conflicts between
the facts set forth in Exhibit 3 and the facts given in West's testimony are discussed below.

First, in his discrimination comElaint, West explRined that there
were 11 places which needed roof bolting and that roof bolts from 6 to
10 feet long would be required. For that reason, West stated that he
assigned all four men to installing bolts with use of both roof-bolting
machines (Exh. 3, p. 3). At the hearing, however, Uest testified th2t
he assigned Haggard and Houseright to assisting with servicing of the
continuous-mining machine. Since servicing the continuous-mining
machine was what Haggard and Houseri.gh t normally did, West testified
at the hearing on the basis of what normally occurred and apparently.
forgot about the special aspects of roof bolting which needed attt>ntion on the night of September 27 as described in his discrimination

587

complaint. For- lhnt reason, Haggard protably recalled thte> facts
correctly when he stated that lw and Hou:::eright went undeqr,round 0n
September 27 and began roof bolting as soon as they got underground
Maggard' s testimony shows no mention of assi :3ting with any servic.-ing
of the continuous-mining machine as was normally done (Dep., pp. 78).
Second, in his discrimination comp la int West stated that Dockery
was still outside the mine when West and Kelly came 0ut at 5:55 a.m.
(Exh. 3, p. 3), btit in his testimony at the hearing, West stated that
Dockery was gone when he and Kelly came out because he 11ad given
Dockery permission to retun1 to the mine officc7 bef,,re he (West.) went
unde1~grour;.d at 5 a .m. (Tr. 88).
Both Kelly and Dockery t\~stifiPd at
the hearing that Dockery was still outside the mine portal ~1en West
and Kelly came out (Tr. 599; 617; 658). Furtht?r.r:ore, in the discrjrnination complaint West explained to Ridley at the discharee meeting
on Scptf:mbf'r 28 that West co.~ld not take Docb:ry' s 1 ight because
Dockery needed the light to see to ual k dov.'n to the mine off ice in
the dm~k (Exh. 3', pp. '1-5).
If Dockery had already left, as West
testified at the he&ring, it would hav2 been unnecessary for West to
explai~ to Ridley ·ahy he ciid not use Docl<e:ry's light for use in go·)ag
back inside the mine to uake his p~eshift exwnination.
Third, in the discrin1inc:.tior1 ccmpla·int, l~est stat>~d that he \.;as
in Phipps' Je2p when Ph:i~)pS an.d Kelly ca,;1e out of the mi.ne at
6:50 a.rn. (Exh. 3, p. 4), but in his testimony at the hearing Vest
stated that he just opened the door on ~1ipps' Jeep and stood there
leanin;:; e::gainst the Jeep with the doo·~ opt-On so that the Joor \'70uld
knock sor,H:> of the cool air off of: hi:-a (Tr. 91; 93). i--72st 1 s stati>ment
in the discrimination complaint that he was sitting in the Jeep is
consistent with the testimony of Dockery who stated. that West told
him th<::.t he was going to get up in the .Teep where it was warm (Tr.
617). It is also reasonable to believe that a person who hes been
at the mine froin 11 p.m. to about 6 a.m. may go to sleep once he has
yielded lo the temptation of getting into a Jeep "whc~re it's \Hlrm. 11
sitt~_ng

Fourth, in the discrimination complaint, West stated that Phipps
and Kelly came out of the mine at 6:50 a.m. (Exh. 3, p. 4), but at the
hearing West testified that Phipps and Kelly ca;r,e out at 6:40 a.m.
(Tr.· 89). West 1 s statement in the d iscr:im)nation co~.-.pla-int is consistent witl1 Phipps' testimony because Phipps testified that he and
Kelly came out of the mine at 6:50 a.m.
Phipps explained that he had
intended to leave earlier than 6:50 but that he could not leave before
6:50 because it took Kelly and him that long to finish bolting )n the
heading where t~ey were working (Tr. 624-625). Phipps' reference to
the difficulty he had in fiPishing bolting is consist2nt with West's
statement in the discrimination complaint to the effect that thc;~e
was an abnormally large amount of roof bolting to be done on the night
of September 27 (Exh. 3, p. 3).

588

Fifl"h, in his discrimination coraplaint, West stated that Dane
He.::ide, ,,ho was servicing the continuous-mining ma~hine, came outs.ide
about 2:30 a.m. to get two cans of Coke or beer and in his testimony
West stat.ell that the two men who had been servicing the continuousmir.ine machine went home.about 2:30 or 3:00 a.m. (Exh. 3, p. 5;
Tr. 225). W0st 1 s deuiiled knowledge about occurrences on the surfacP
support Dockery's testim~n~ ihnt W0st remained on the surface with
hit1 until 5 a.m.- without ever g01nr, underground (Tr. 597; 616).
The foregoing discussion shows why I have concluded that the
test:Lr..-,ny of the men on \Jest's shj ft is moT~ credible thnn West's
testiu10ny wj th respect to U1f: events which occurred on ~'lest 1 s shift
on the~ n:l23ht of Septe;nber 27 and morning of Septer:iber 28. Therefor;:,
I must reject th2 claim in ilSHA's brief that Elk:ino En,~rgy did not
have sufficient grounds for rlischarging West on September 28, 1978.
Relief ltequested __!?y 1'iSHA 1 s rdc~
M.Sl:lA' s brief (p. 10) .-:;sks that I find th:it \\fest '.i•<;.s unlawfully
disc.rimic2ted agair:t.t and laid off and subsequ0ntly di.sc.harged by
respondent for engasing in actions protected by section 105(c) of the
Act.
If that finding is r.iade, HSHA's brief asks that Ct'rtain pc.t)1nents
for back pay, etc., be m;:dr-:-.
Then HSHA's hi~ief statps on page 11
that
lh]r~ca11se thc~r(:· c.:re two separate incidents in this case, 1!.: is
rec::ignized that a fir.d·i_n;-; of discri;nin.:::.tion in only o:i.e of them is
possible." Then HSlE's b;-_·ief (pp. 11.-12) makes certain recormnendations about respondent's being ordere<l to pay West for salary lost
during the period he haR not worked.
11

I do not m1derst:;:;r;d why two finrlings as to discririiinatory disclrnrg('! cou:i.d r:ot be m.:=i.d.r~ if the (~vidc,nce supported them..
It is certain thnl West filed two discrimination complaints and MSHI->., on Oest' s
bel; ';f, amended the compL-::int in this proceeding so as to raise the
issue of two unlawf;•l disch.:irges.
I assrn-.;_(~ that l':SHA is under th2
impression that when \J.'"st was "laid off" on April 4, 1978, that we
cannot refer to that as a discharge unless it is also found that
respondert discri1~in.:;ted against \·!2ct wt.en it decl incd to rehire
West whe;-1 the third shift was b0gun about May 1, 1978, or less than
a month afte.r West was laid off.
I havP hereinbefore found that respondent discriminated against
West in laying him off on April 4, 1978. That is one finding of
discrimination.
If t be evidc-'l1ce supported West 1 s c 1 aim that he was
unlawfully discharged on September 28, 1978, thnt ~luld have been a
basis for finding that respondent had for a secrrnrl tirr.e ciiscrir.1inated
against West.
As Finding No. 3l•, supra, shows, West had continu,"d
to make corr:plaints nb0ut safety aftei.·h-e was reinstated. Therefore,
I do not und0~stapd ~1y MSHA would claim that since there are two
separate incidents, only one finding of discrimination is possible.

589

Additionally, I do not unden;t·.c.md why HSll.::\' s brief (p. 12) clci·.'1~'
that the whole purpose of the Ac:t will be frvsti:ated if a re~,pondi:-:nt
can discharge fl.i1 employee who has bt>en reinsU1!:ecl. All tlwt \!Ou 1 cl
have been necessary to have put West back on r~spondent's payroll
after West's second di sch<lrge wnul <l havP. ber~n for tii;~ Secr,;ta1·y lo
make a finding u;1der section 105(c) that West's second <liscri: 1inat:i()n
complaint was not frivolouR.
If such a finding hnd been IBaJe, I knov
of nothing that \-muld have prevente:l. a second order of te,;:po:::-ary reiri.statement from having be?n issued. Presumably, the Secretery d jd find
that thf're had been a second ect of <liscrirninati.on or the Sccr.:::t<..:ry
would not have <lmended the ,~omplaint in this proceeding to alleg2 a
second unlawful discharg(' (Finding Y!os. 31 and 39, supra).
0

Ve.cation Pay
-·
--West claimed t!-iat when he wrcs hL·ed, he was prornisec thc;t he
would be given 2 weeks of vacation pay. When he tried to collect the
vacation pay at.:<. later ti.me, he was to.ld that no section f:orernan ua:}
receiving aLy vacation pay (Tr. 77; 106). No one asked respo~dent's
management to t:};plain its policy \Jitt1 r1""spect to vacation pay. Ther,,
is nothing in tlH: record t() support a fi;:,0.ing th&t. West is ent.i!:c-·cl t t )
vacation pay, but since he conti.nucrl to claim th~t he was encitled to
vacation pay (Tr. 106), l :;'.1&11 hcndnafter oi:d<~r that West be pa.id
2 1.;·eeks of v;:.cat.iC'2• pay ~·~ith intc-•rest from the date that he ~~hnuld
have receiV€'<l it if he lvd not been discharged on April 4, 1973. i1y
order: that Wc::;t be given vac.stion pay is, however, subject to the
following condftion: l[ within 30 days after this decision is issued,
Ridley Elkins files an aff~davit under oath stat~ng th&t nn section
foreman at the No. 6 Mine received vacacion p&y in 1977 an~ 1978,
then responctent shell be excused from the requirement 0£ giving West
any vacation pay.

Respondent Elkins Energy Corporation discri~inatcd against
Rohert 1. West and violated section 105(c)(l) of the Act
by laying hi~ off on April 4, 1978, without ever reemploying hira
when vacancies for section foreman suhs~:quently bPcc:ine available at
(1)

co~plainant

responde~t's

(2)

No. 6 Min~.

Respondent did nc.t discri1:.iinate ag2-inst. complainant when

it d:~sch.:irged him on September 28, 1978, becauoe suffkient reasons
having no protection under section 105(c)(l) of Act were slto\m for
such di8char;;;e.
(3) Respondent should be required to provide the affi.rm<~tiv0
relief provided for in section 105(c)(2) of the Act as hereinafter
directed in paragraph (B) of the ord<"r accoinp:,_:1ying this decision.

590

WHEHEFORE, it is orderPrl:

MSH:'.':;; G.;;:enc~(:d discri J:inatory co;;i;-_.l.qint filP.d iii this
pn1<:f":><l·ing i.s grantc:d 1·1ith r;~:;~ect· t(• thP c1airn of discrininatory
disdw1-r_;-~ dat0d !~1>-ri:l !;., 1Q78, and dronied wii:li respP.::t to the.allPgPd.
di:::cri:ninator/ disc:t·;ar;;e diit:£'•l Septp;;1ber 28, 1978.
(A)

( B)
belc.n-1:
(1)

0

.,

. ,.

Respond,·nt shall provide the c:ffirnative re11.c:c set forth

R(~spondcnt

sho.11 reir;iburs0 compJair:..::int at the rate cf
4, 1918, to S0ptcmGer 28, 1978, less any
salary pc:tid to conpl:::;-tn.-rnt fron1 t.he time he \·ic<S ten,t1or.:.iri1 y r1~:i:i
st.c;ted ou J1.i1y lG, 1978, to th':: clE.te cf his disc.liarg(• on S-eptc~·_,ter 28,
1978, tog;-:>~hf.T with :i.f!.t1~rest 2t tile rate of 8 perC€i1t P'~r an;1:.-,J.

$2,100 pe~ month

fr0~ ~pril

(2)
Re'"'.)c;n_d,::1)t shall p.::y cc.:nplDinr~nt $100 :~or Pach S"'rnnl2y
complc:ci_n;rni: 1·10rh'tl fror1 July 10, lS'78, to Seru~::::;er 28, 1973, tc;gcLhf:.c
with i~terest at th~ r3te of 8 percent pPr annum.
(3) Rcspond(:1--..t shs.Jl pay respondeni': th!" same a:'wunt of v.Kat: },,,.,
·which \V3.k givt:on to ony oth~:r St~ctinn forcrnr.:n 5t tb2 Ne, . 6 :.1inP
in 1977 or 1978, to~_.0tiH~!." with interest rl: 8 perecLt; p.covi.d,~c.,
hc->-:ever, t.hc:.t ret,i:ond;::nf:. is not J""~qui.1.ecl to pro,1id2 CCi~crl.s·inant Kith
va.cRt:·inn pn:· if Ridley Elkins sub::-:it.s wit:h:;_n 30 dc1yc aftl"r issu<::,-.c . :•
of this decision an affidavit btnting that Go section forem2n ~t the
No. 6 Min2 was given 2ny vacat~on pay in 1977 or 1978.
p~y

(!~)
n,~ s p::n'!.deu t sh al 1 inc. 1 ucL~ c o~.1r 1 e in.;;:n ~:: under a~1y fr ~_nge hr-n\~fits to \\:l1ic}1 he \J0~.1ld ha.Ve h2en C:n.i. l t1.e(~ [or the f- :··iod rrorn Lri~1.t q.}
1978, to Septe1'!bcr: 28, 1978, to the s.::;ne d2gree lw •;-ould h<ive bee~·
protected had he not been unla~fully di.schar~ed oa April t,., 1970.
,..

.

Respondent shalJ. exp'J.nge fro:a co:nplain::int 1 s e~:.p:.oyrnent
records any references to his discharge of April 4, 1J78.
(5)

~

x:·:~: -~··: _! • •.r.:·_.-/ ·(

<

,.. -~·(· ·..t.
;._... <.·~-:.. ·: ~~~· .5'_·'

Richard C. Steffey

... · -

\..

Admirtistrative Law Judge

591

• ..

I

FEDERAL MINE SAFi::TY AND HEALTH REVD[\f/ COMl\rllSSION
OFFICE Of ADMIPJISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

June 19, 1979

CONSOLIDATION COAL COMPA1\1Y,
Applicant

Application for Review
Docket No. MORG 79-108

INDUSTRIAL CONTRACTING OF
FAIRMONT, INC . ,
Applicant

Order No. 0804505
February 6, 1979

v.
Loveridge Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Edgar F. Heiskell III, Esq., Haden and Heiskell,
Morgantown, West Virginia, for Applicants;
Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Respondent MSHA.

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 107(e) of the Federal
Mine Safety and Health Act of 1977 by Consolidation Coal Company
and Industrial Contracting of Fairmont, Inc., an independent contractor, .to review an order of withdrawal issued by an inspector of the
Mine Safety and Health Administration (MSHA) under section 107(a) of
the Act for imminent danger.
By notice of hearing dated April 6, 1979, this case was set for
hearing on June 6, 1979, in Pittsburgh, Pennsylvania. The notice of
hearing required the filing of preliminary statements on or before
May 22, 1979. The applicants and MSHA filed preliminary statements,
and the case was heard as scheduled. The applicants and MSHA
appeared_ and presented evidence.

592

Applicable Statute
Section 107(a) of the Act provides:
If, upon any inspection or investigation of a coal
or other mine which .is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent ot the area of such mine throughout which the
danger exists, and i~sue an order requiring the operator
of such mine to cause all persons, except those referred
to in section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secret&ry determines that such
iunninent danger and the conditions or practices which
caused such imminen.t danger no longer exist. The issuance of an order under this subsection shall not preclude
the issuance of a citatibn under section 104 or the proposing of a penalty under section 110.
Bench Decision
At the conclusion of the taking of evidence, the parties waived
the filing of written briefs, proposed findings of fact, and conclusions of law. Instead, they agreed to make oral argument and have
a decision rendered from the bench. Upon consideration of all documentary evidence and testimony, and after listening to oral argument,
I rendered the following decision from the bench:
This case is an application filed by Consolidation
Coal Company and Industrial Contracting of Fairmont, Inc.
for review of an order of withdrawal issued by an inspector of the Mine Safety and Health Administration under
section 107(a) of the Act for imminent danger.
Section 3(j) of the Act defines imminent danger as
the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause
death or serious physical harm before such condition or
practice can be abated.
The order in question recites that three people
were observed working on steel structure catwalks and
platfonas approximately 80 feet above the ground without safety belts or other devices to prevent them from
falling; that travelways and platforms were not being
kept clear of stumbling and slipping hazards; that a
safety device was not provided at the top of the
ladder and on one side of the ~latform where men were

593

walking; and finally, that on the slurry construction
where a person could fall through or over the edge,
safety belts or lines were not being used where there
was a danger of falling.
The evidence indicates that Industrial Contracting of Fairmont, Inc. was building a steel tower for
Consolidation Coal Company. On the day in question,
a platform w~s being constructed at the top of the
tower, 80 feet from the ground.
The inspector described the platform at the top of
the tower in detail. He described how the platform was
reached by walking through the large slurry pipe and
that at the end of the pipe he had to jump down approximately 3 feet on the platform (Point A on Respondent's
Exhibit No. 2). On the floor of the platform where he
jumped down there was some loose grating. He further
described the floor of the platform as coated with
frost or ice which he said was slippery. According
_to. the inspector there was an area of the platform
52 inches long (Point Bon Re;~pondent' s Exhibit No. 2),
which had no handrail and another area of the platform
12 feet long (Point Con Respondent's Exhibit No. 2)
which also had no handrail. The width of the walkways
next to these areas were only 24 inches and 33 inches,
respectively. Both the 52-inch span and the 12-foot
span had cables strung across them, which the inspector
did not believe would support a man's weight if he
grabbed on to them while falling or if he fell on to
them. The inspector's testimony is that the men working on the platform had to pass by these unguarded
areas in order to reach their area of work (Point D
on Respondent's Exhibit No. 2). The inspector also
described a 60-foot area around the belt structure
where only a handrail, 6 feet off the platform,
existed. Finally, and perhaps most importantly, the
inspector testified that the men he observed on the
platform were not wearing safety belts.
The inspector's assertion that the men were not
wearing safety belts is uncontradicted. His description of the areas which had no handrails, but only
cables, also is undisputed as is his statement that
the men had to pass by these areas to reach the area
they were working. His statement regarding the handrail also was not challenged. The applicant's foreman admitted that there was some frost on some of the
grating, but he expressed the view that it was not
slippery. I find more persuasive the inspector's

594

testimony that the floor of the plat form was slippery.
I also accept the inspector's ~pinion that the cable
strung across the 52-inch span and the cable strung
across the 12-foot span would not be strong enough to
hold a man if he slipped and fell. Otherwise, there
would be no necessity to have handrails at all. I
fur.ther accept the inspector's testimony that, with
respect to the 60-foot area, a man could slip and
fall beneath the high rail, which was the only handrail installed in that area.
Based upon the foregoing, I conclude an imminent
danger existed. At any moment, one or more of the
men could have slipped and fallen at any of the places
on the high platform described by the inspector with
death or serious injury as the certain result. Regardless of how inconvenient safety belts may have been
under the particular circumstances, as the applicant's
foreman testified they were, these belts should have
been worn. As it was" the men were totally unprotected
either by safety belts or by adequate handrails at a
time when weather conditions were very bad.
Applicant's counsel has argued most diligently that
the men working on the platform were experienced. I
cannot, however, accept that as a defense to the order.
The Act protects all who work in the mines. It is a sad
but true fact of life that some of the worst fatalities
have befallen the most experienced of miners.
I also recognize that as applicant's counsel has
painstakingly pointed out, the platform was in the
process of being constructed and the men were bringing
their equipment out on to the platform. It is not for
me to tell the applicant how to do its work. However,
what I cannot do is countenance the. applicant's discharge of its construction responsibilities in a manner
which exposes its men, even though they may be experienced in their field, to imminent.danger.
In light of the foregoing, I find and conclude
that ari innninent danger existed. The order is upheld
and the application for review is dismissed.
I thank both counsel for a very helpful oral
argument.

595

ORDER
The bench decision is hereby AFFIRMED. Accordingly, it is
ORDERED that Order No. 0804505 be UPHELD and that the application
for review be DISMISSED.

Assistant Chief Administrative Law Judge
Issued:

June

l~

1979

Distribution:
Edgar F. Heiskell III, Esq., Haden and Heiskell, Suite 222,
Monongahela Building, Morgantown, WV 26505 (Certified Mail)
Michel Nardi, Esq., and Karl T. Skrypak, Esq., Consolidation
Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., Office of
the Solicitor, U.S. Department of Labor, Room 14480-Gateway
Building, 3535 Market Street, Philadelphia, PA 191.04
(Certified Mail)
Joyce A. Hanula, Legal Assistant, 'Jnited Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

596

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

June 19, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM~NISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. MORG 79-63-P
A.O. No. 46-01968-03011

v.
~

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. MORG 79-72-P
A.O. No. 46-01968-03009
Docket No. MORG 79-86-P
A.O. No. 46-01968-03017
Docket No. MORG 79-92-P
A.O. No. 46-01968-03018
Docket No. MORG 79-97-P
A.O. No. 46-01968-03004
Docket No. MORG 79-98-P
A.O. No. 46-01968-03006
Blacksville No. 2 Mine
Docket No. MORG 79-85-P
A.O. No. 46-01867-03008
Docket No. MORG 79-91-P
A.O. No. 46-01867-03009
Blacksville No. 1 Mine

DECISION AND ORDER APPROVING SETTLEMENT
The 32 violations charged in the captioned petitions carried
proposed assessments totalling $8,011.00. By letter of June 12,
1979, respondent confirmed an oral motion to settle these matters
by payment of a total penalty not to exceed $15,000.00 as
individually assessed and allocated by the Presiding Judge for
each violation alleged. The Secretary concurred in this proposal.
Based on my independent evaluation and de novo review of
tlie circumstances involved as set forth in the parties prehearing
submissions and statements, including the gravity and negligence
indicated, as well as the other statutory' criteria, I find the

597

amount proposed for settlement should be assessed and allocated
as set forth in Exhibit A, Schedule of Penalties. The total
amount, $9,626.00, is approximately 20% more than the amount
originally assessed.
Accordingly, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED. It is further ordered
that the operator pay the penalty assessed, $9,626.00 on or
before Tuesday, July 3, 1979 and that, ubject to payment,
the captioned petitions be DISMISSED.

Administrative Law Ju
Issued:

June 19, 1979

Distribution:
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
John O'Donnell, Trial Attorney, Office of.the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

598

79-92

$106

"

$195

$200

$75
$75

ordinary
ordinary

ordinary

ordinary
ordinary

serious
serious

serious

non-serious
non-serious

$275

ordinary
serious
77.701

019268

$295

ordinary

serious
77.400

$250

ordinary
non-serious

75.200

018662

019266

$350

ordinary
serious

75.200

$140

ordinary

serious

$75

AMOUNT

ordinary

NEGLIGENCE

non-serious

GRAVITY

018706

77.205

260109

79-91

75.1713

260101

79-86

75.1722

75.500

01.9888

013713

77.1915

019889

79-85

77.208

019886

79-72

75.1725

STANDARD

018771

CITATION

MO~'f9-63

DOCKET

SCHEDULE OF PENALTIES

EXHIBIT A

79-98

79-97

Mo(~9-92

DOCKE'r

serious

77.512
77.516
77.904
77.1907
77.208(d)
75.517

019272
019274
259846
259847
259848
014682

$300
$75
$250

$2!15

$1000

ordinary
ordinary
ordinary

ordinary
high degree of
ordinary negligence
ordinary

extremely
serious
non-serious
non-serious

serious
extremely
serious
serious

75.lOO(b)
75.1722

75.503
75.200
75.517

016080
019909

016'057
016060
016063

/. $500

$100

75.1403

ordinary

016077

non-serious

75.1106-3

016055

$600

high degree of
ordinary negligence

serious

75.701

016054

vacated

-

-

$100

$1500

$395

ordinary

gross

ordinary

$255

$195

ordinary
ordinary

$195

AMOUNT

ordinary

NEGLIGENCE

non-serious

extremely
serious

serious

serious

serious

GRAVITY

77.701

STANDARD

019270

CITATION

'i'

0

0\

I

DOCKET
Y'o~~
79-98

STANDARD
75.604
75.1107-4
75.1403
75.1003
75.1403
75.503

CITATION

016066

016068

016076

019904

019907

019861

$200
$150

ordinary
ordinary
high degree of
ordinary negligence
ordinary

sericn,1s
non-serious
extremely
serious
non-serious

TOTAL

$150

ordinary

serious

$9626

$100

$750

$500

ordinary

serious

AMOUNT

NEGLIGENCE

GRAVITY

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

June 21, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. HOPE 78-607-P
Assessment Control
No. 46-01271-02023V

v.
Harris No. 1 Mine
EASTERN ASSOCIATED COAL CORP.,
Respondent:
DECISION
Appearances:

Edward H. Fitch IV, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Robert C. Brady, Legal Assistant, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Administrative Law Judge Steffey

A hearing was convened in the above-entitled proceeding on December 5,
1978, in Charleston, West Virginia, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977. At the hearing, petitioner's
counsel and respondent's legal assistant moved that a settlement agreement
with respect to an alleged violation of 30 CFR 75.603 be approved. Although USHA's Petition for Assessment of Civil Penalty in Docket No. HOPE
78-607-P seeks assessment of civil penalties for two alleged violations,
namely, a violation of 30 CFR 75.603 and a violation of 30 CFR 75.200, the
parties asked that I approve a settlement only with respect to the alleged
violation of section 75.603 because I had previously received evidence
with respect to the alleged violation of section 75.200 in a proceeding involving an Application for Review filed by Eastern Associated Coal Corp.
in Docket No. HOPE 78-109. In my decision issued May 30, 1978, in Docket
No. HOPE 78-109, I stated that I would decide the civil penalty issues
raised with respect to the alleged violation of section 75.200 when MSHA
filed a Petition for Assessment of Civil Penalty with respect to the violation of section 75.200 alleged in the withdrawal order which was under
review in Docket No. HOPE 78-109.
This decision will first consider the settlement agreement reached by
the parties with respect to the alleged violation of section 75.603 and
thereafter wi).l dispose of the alle·ged violation of section 75. 200 on the
basis of the record heretofore made in Docket No. HOPE 78-109.
The Settled Penalty
Order No. 1 BRB (7-150) 9/14/77 § 75.603

602

MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.)

The violation of section 75.603 involved in the parties' settlement
agreement was alleged in Withdrawal Order No. 1 BRB (7-150) issued
September 14, 1977, under section 104(c)(2) of the Federal Coal Mine
Health and Safety Act of 1969. Order No. 1 BRB alleged that there were
two temporary splices and one damaged place in the trailing cable to Joy
Shuttle Car No. ET9864 and one temporary splice in the trailing cable to
joy Shuttle Car No. ET9366. It was further alleged that the insulation
on the temporary splices was inadequate and that. a bare wire showed in
one of the splices. It was also alleged that the trailing cables were
not properly secured by the strain clamp at the cable reels.
The Assessment Office proposed that a penalty of $10,000 be assessed
for the alleged violation of section 75.603. That proposed maximum penalty was based on a waiver of the normal assessment formula provided for
in 30 CFR 100.3 and the making of findings which stressed that the order
had been issued under the unwarrantable failure provisions of the 1969
Act. MSHA's counsel agreed to accept respondent's offer of $5,000 on the
basis of several considerations which indicate that, while a high degree
of gravity was associated with existence of several inadequately insulated
places in the trailing cables, the inadequate insulation did not expose
the miners to a grave danger at the time the poor insulation was 0bserved.
First, the likelihood of a shock or electrocution hazard was diminished by the fact that the poor insulation was observed during the maintenance shift at a time when the trailing cables were not energized.
Second, the poor insulation was located at a point outby the working
faces near the power center where it was not likely that miners would
have to handle the cables. Third, there were no coal accumulations or
other conditions which might have been likely to cause a fire or explosion if a spark had come from the exposed wire in the cable. Fourth, all
of the wires in the splices had been connected, including the ground wire,
so that it was improbable that a miner would have been exposed to a shock
hazard if he had touched the frame of one of the shuttle cars at a time
when its trailing cable was energized. Finally, since the poor insulation
was discovered on a maintenance shift, there was at least a possibility
that the poor insulation on the trailing cables would have been corrected
before the shuttle cars were energized at the commencement of the next
production shift.
The mitigating circumstances descri'!Jed above warrant a finding that
the violation of section 75.~Q3_was not so hazardous -as to justify- the-·
assessment of the maximum penalty of $10 ,000 proposed by the AssessmentOffice. Therefore, I find that respondent's agreement to pay a penalty
of $5,000 is reasonable and should be approved.
The Contested Penalty
Order No. 1 EW (7-183) 11/17/77 § 75.200

603

MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.)
Issues. The issues raised by the Petition for Assessment of Civil
Penalty in the contested portion of this proceeding are whether respondent violated 30 CFR 75.200 and, if so, what civil penalty should be
assessed, based on the six criteria set forth in section llO(i) of the
1977 Act or section 109 of the 1969 Act.
Occurrence of Violation. Section 75.200 requires each operator of
a coal mine to prepare and file with MSHA a roof-control plan applicable
to the conditions in his mine. After the plan has been approved by MSHA,
the operator is required to follow its provisions. Respondent's roofcontrol plan requires that a total of four temporary supports shall be
installed within 5 minutes after the loading machine is removed from the
face of an entry. The placement of the temporary supports in accordance
with respondent's roof-control pla~ requires that two supports shall be
installed no more than 5 feet inby the last permanent supports with one
temporary support located on the left side and the other on the right
side of the entry. Two additional supports are required to be installed
no more than 5 feet inby the first two temporary supports and in line
with the first two supports (Drawing No. 2, Exh. 2; Tr. 19; 123. NOTE:
All transcript and exhibit references are to the record in the Eastern
Associated case in Docket No. HOPE 78-109.)
Respondent violated section 75.200 because the inspector observed
the operator of the roof-bolting machine and his helper installing roof
bolts near the face of the No. 3 entry. The miners were in violation of
the roof-control plan because only one of the four required temporary
supports had been installed and the operator of the roof-bolting machine
had already placed two headers against the roof with only a single bolt
inserted in the center of each of the two headers. Both headers were
located inby the last permanent roof support.
Gravity. The installation of roof bolts with use of only one safety
jack was a hazardous act, but there was no indication that the roof was
in any immediate danger of falling because the inspector saw no visible
cracks or breaks in the roof and he believed that respondent's Harris
No. 1 Mine generally had fair roof conditions. Nevertheless, the inspector said that when miners work without using adequate supports, they
are always exposed to a possible roof fall (Tr. 21-22). Therefore, I
find that the violation was serious.
Negligence. The operator of the roof-bolting machine and his helper
were experienced miners and they said that they knew better th~n to install roof bolts without using the required number of temporary supports
(Tr. 23). The section foreman had had a great deal of difficulty in getting the roof bolter and his helper to follow orders. The section foreman had caught them violating the provisions of the roof-control plan
from time to time despite the fact that the section foreman explained the
provisions of the roof-control plan to the miners on his shift every Wednesday morning (Tr. 148-151; 153). Although the section foreman knew

604

MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.)
that the roof bolter and his helper had a strong tendency to ignore the
provisions of the roof-control plan, he had gone to check a sump pump in
an adjacent entry at the time the inspector found the roof bolter and his
helper violating the plan. The section foreman had seen the roof bolters
ready to enter the No. 3 entry to begin roof bolting when he made his
last inspection of the face areas, but he made a check of the pump instead of remaining in the vicinity of the roof bolters so as to assure
that they would follow the provisions of the roof-control plan. Therefore, I find that respondent was negligent in failing to see that the
provisions of the roof-control plan were followed.
Although my decision in Docket No. HOPE 78-109 affirmed the inspector's order as having been properly issued under section 104(c)(2) of
the 1969 Act, the parties agreed that the issue of unwarrantable failure
was to be determined under the former Board of Mine Operations Appeals'
holding in Zeigler Coal Co., 7 IB11A 280, 295 (1977). In the Zeigler
case, the Board held that a high degree of negligence does not have to
exist to support the issuance of an unwarrantable failure order.
Size of Operator's Business. The evidence shows that in 1977, when
Order No. 1 EW was issued, respondent employed 1,334 management persons
and 5,731 contract laborers to produce 6.15 million tons of coal. The
mine which is involved in this proceeding is respondent's Harris No. 1
Mine which, in 1977, produced 625,441 tons of coal and employed 71 management persons and 334 contract laborers (Exh. B). The Harris No. 1
Mine has eight working sections, three of which use conventional mining
procedures, three of which produce coal with continuous-mining machines,
and two of which use longwall methods to produce coal (Tr. 12).
On the basis of the foregoing information, I find that respondent
operates a large coal business and that the penalty to be assessed in
this proceeding should be in an upper range of magnitude to the extent
that the penalty is based on the size of re~pondent's business.
Effect of Penalties on Operator's Ability To Continue in Business.
Respondent's representative at the hearing in Docket No. HOPE 78-1.09
stated that payment of penalties would not cause respondent to discontinue in business (Tr. 172). Therefore, I find that the assessment of
the penalty herein imposed will not cause respondent to discontinue in
the coal business.
Good Faith Effort To Achieve Rapid Compliance. A period of only
12 minutes was required for respondent to achieve compliance with its
roof-control plan after Order No. 1 EW was issued. Therefore, I find
that respondent demonstrated a good faith effort to achieve rapid compliance and that mitigating factor is hereinafter taken into consideration in assessing the penalty.
Assessment of Penalty.

As the above discussion of five of the six

605

MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.)
criteria has shown, the violation of section 75.200 exposed the miners
to a possible roof fall, but there were no visible signs to indicate
that a roof fall was any more than a potential hazard in the circumstances observed by the inspector. Sinc:e it is always possible for an
unsupported roof to fall without warning, the violation was still serious and warrants a substantial penalty from the standpoint of gravity.
Although respondent was-negligent in permitting the miners to install
roof bolts without using the proper number of temporary supports, some
consideration should be given in assessing a penalty to the fact that
respondent was explaining the provisions of the roof-control plan to its
miners on.a weekly basis. Moreover, consideration should be given for
the fact that the two miners concerned were recalcitrant and were difficult to supervise.
When the foregoing considerations are added to the fact that a
large operator is involved and that respondent immediately achieved compliance, I conclude that a penalty of $2,000 is warranted in light of
all the mitigating factors discussed above. The Assessment Office proposed that a penalty of $8,000 be assessed for this violation, but the
Assessment Off ice reached that large amount primarily by placing an
undue emphasis on the fact that the order was issued under the unwarrantable failure provisions of the Act.
History of Previous Violations. Exhibit 13 indicates that there
have been 36 prior violations of section 75.200 at respondent's Harris
No. 1 Mine. Three violations occured in 1971, 2 in 1972, 4 in 1973, 2
in 1974, 8 in 1975, 14 in 1976, and 3 in 1977 by July 13, 1977. The
statistics show that an increasing number of violations of section
75.200 have occurred during the past few years. It is encouraging to
note that only three violations of section 75.200 had occurred by July
of 1977 which may indicate that respondent is beginning to achieve a
reduction in the number of violations of section 75.200. Nevertheless,
I believe that respondent's history of previous violations is sufficiently
unfavorable to require that the penalty otherwise assessable of $2,000 be
increased by $250 to $2,250 under the criterion of respondent's history
of previous violations.
Summary of Assessments and Conclusions
(1) The parties' settlement agreement under which respondent has
agreed to pay a civil penalty of $5,000 for the violation of section
75.603 cited in Order No. 1 BRB (7-150) dated September 14, 1977, should
be approved and respondent will hereinafter be ordered to pay a penalty
of $5,000 pursuant to the settlement agreement.
(2) On the basis of all the evidence of record in the proceeding
in Docket No. HOPE 78-109, and the foregoing findings of fact, respondent is assessed a civil penalty of $2,250 with respect to the violation
of section 75.200 cited in Order No. 1 EW (7-183) dated November 17, 1977.

606

MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.)

(3) Respondent was the operator of the Harris No. 1 Mine at all
pertinent times and as such is subject to the provisions of the Act and
to the health and safety standards promulgated thereunder.

WHEREFORE, it is ordered:
(A) The settlement agreement described in paragraph (1) above is
approved.
(B) Respondent Eastern Associated Coal Corp. is assessed civil
penalties totaling $7,250.00 for the violations described in paragraphs
(1) and (2) above. The penalties shall be paid within 30 days from the
cate of this decision.

~1..a--h:f <3. yJ.til!;?.q_

Richard C. Steffey t 1 t• ?'
Administrative Law Judge
Distribution:

Eoward H. Fitch IV, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
John H. O'Donnell, Trial Attorney in Docket No. HOPE 78-109, Office
of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Robert C. Brady, Legal Assistant, Eastern Associated Coal Corp.,
1728 Koppers Building, Pittsburgh, PA 15219 (Certified Mail)

607

FEO!E;.;?AL W:1nNE SAFETY AND ~~E~~t:r~ !REVH':.:VJ co:'lJ~\JHSSSON
OFFiCE Or ADMINISTRATIVE LAW JIJDGcS
4015 WILSON bOULEVJ',i.{0
ARLINGTON. ViRG INIA 22203.

June 25; 197.9

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

Civil Pen~lty Proceeding
Docket No. BARB 78-636-P
A.O. No. 15-02502-02023I

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

John II. O'Donnell, Attorney, Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Neville Smith, Attorney, Manchester, Kentucky, for
Respondent.

Before:

Judge Littlefield

Introduction
This is a proceeding for assessment of a civil penalty against
the Respondent and is governed by section llO(a) of the Federal Mine
Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9,
1977), and section 109(a)(l) of the Federal Coal Mine Health and
Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969).
Section llO(a) provides as follows:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who
violates any other provision of this Act, shall be assessed
a civil penalty by the Secretary which penalty shall not be
more than $10,000 for each such violation. Each occurrence
of a violation of a mandatory health or safety standard may
constitute a separate offense.
Section 109(a)(l) provides as follows:
The operator of a coal mine in which a violation occurs
of a mandatory health or safety standard or who violates
any other provision of this Act, except the provisions of

608

title 4, shall be assessed a civil penalty by the Secretary
under paragraph (3) of this subsection which penalty shall
not be more than $10,000 for each such violation. Each
occurrence of a violation of a separate offense. In determining the amount of the penalty, the Secretary shall conslder 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 operator charged in attempting to achieve
rapid compliance after notification of a violation.
Petition
On August 17, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
a civil penalty charging one violation of the Act as follows:
Order No.

1 ARR

Date

30 CFR
Standard

8/30/77

75.200

Answer
On September 14, 1978, Respondent, Shamrock Coal Company, filed
an answer thereto, which denied the allegation and requested a hearing thereon.

Tribunal
A hearing was held on Wednesday, February 14, 1979, in Knoxville,
Tennessee. Both MSHA and Shamrock Coal Company (Shamrock) were represented by counsel (Tr. 3). Posthearing briefs were filed by both
parties.
Evidence
1.

Stipulations

The following stipulations were entered:
(a)
(Tr. 5).
(b)

The proceeding is governed by the 1969 Act and 1977 Act
The Judge has jurisdiction (Tr. 5).

1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MESA).
609

( c) Shamrock is the operator of the No.· 18 Mine and is subject
to the Acts' jurisdiction (Tr. 5)·.
(d)

The No. 18 Mine currently employs 262 people (Tr. 5-6).

(e) The total production of Shamrock for 1977 was 1.3 million
tons. The total production for the controlling interested party,
Mr. B. Ray Thompson, was 1.4 million tons in 1977 and projected to
be 1.5 million tons in 1978 (Tr. 6).
(f) The ability of Respondent to stay in business will not be
affected by any civil penalty assessed in this matter (Tr. 6).
(g) The inspectors who issued the notices and orders herein at
issue were duly authorized representatives of the Secretary (DAR) (Tr.
6-7).
(h) Copies of the notices and orders which are the subject of
the hearing were properly served on a representative of the operator
(Tr. 7).
(i) The No. 18 Mine's previous history of violations is as
follows: January 1, 1970, through April 8, 1974, 113 violations,
$6,623 penalty paid; January 1, 1970, through May 1, 1977, 249 violations, $17,117 penalty paid (Tr. 7).
2.

Testimony

A.

Albert R. Helton

MSHA initiated its case, exclusive of stipulations, through the
testimony of Mr. Heiton, the duly authorized representative (DAR)
who issued the 104(b) notice herein at issue (Tr. 10-11; Govt. Exh.
No. 182). The inspector spent 10 weeks in Charleston, West Virginia,
receiving specialized training in roof control, ventilation, permissibility and respirable dust (Tr. 12). He had been a DAR for about
7 years, exclusive of a 6-month period when he worked as a certified
mine foreman (Tr. 10-13). He testified that he had inspected the
No. 18 Mine at least 10 times (Tr. 15-16).
On August 30, 1977, he was investigating an accident at the mine
(Tr. 16) as ordered by his supervisor, Mr. Charlie Samples (Tr. 16).
When he arrived, he received an accident report from the foreman,
Mr. John Henry Sizemore, and the safety director, Mr. Gordon Couch
(Tr. 17-18; Govt. Exh. No. 182A). The report was signed by the foreman who was on the shift when the accident occurred, Mr. Charles
Gilbert (Tr. 19-20). The injury report indicated that a miner had a
fractured skull and a pelvis fracture (Tr. 20-21). The witness
stated that the report says in the 19th paragraph that injury was
caused by a rock fall from the top knocking the subject into a shuttle

610

car which was waiting to be loaded (Tr. 21-22; Govt. Exh. No. 182A).
The witness did not actually view the accident (Tr. 22). He estimated
that the side of the shuttle car was 3 feet high (Tr. 23).
Page No. 1 of the memorandum report given the inspector by
Mr. Gordon Couch stated:
Cecil W. Hollen, had been operating the mine and had
just returned to the area of the right crosscut when a
piece of drawrock, five feet wide, six feet long anasix inches in thickness, fell, striking him in the lower
part of the back, forcing him into the shuttle car. The
·injured man was freed from the fallen rock immediately and
brought to the surface. He was transported to Red Bird
Hospital and later to St. Joseph Hospital in Lexington,
Kentucky.
(Tr. 24; Govt. Exh. No. 182A).
The inspector went on to identify Government Exhibit No. 182,
the section 104(b) notice at issue herein (Tr. 24-25). The inspector
issued it because his supervisor told him to issue it (Tr. 25).
By Mr. O'Donnell:

Q. Did you personally see any -- or did you personally find any evidence of a violation of 30 CFR 75.200?
A.

Nothing other than what was in the report.

(Tr. 26). He further concluded that the fault cited in the report
constituted a violation of the roof control plan (Tr. 27; Govt. Exh.
Nos. 183-184). The provision allegedly violated states: "No person
shall proceed into an area where the space between roof support or
between rib or face and support exceeds five feet for any purpose
other than to set temporary support" (Tr. 28; Govt. Exh. Nos.
183-184).
The injury date was August 26, 1977 (Tr. 29). He examined the
area on August 29, 1977 (Tr. 30). On August 29, 1977, he saw roof
bolts (Tr. 30). The last page of the report says there was no roof
support (Tr. 31).
The inspector concluded that the victim was hurt by being under
unsupported roof.
THE WITNESS: Well, I figure he [the victim] got into
the crosscut to avoid the shuttle car.

611

THE COURT: What led you to that conclusion of,
"figure." I don't know what you mean by, "figured."
How did you -THE WITNESS: There was shuttle cars [sic] coming up
the entry, and he had to get out of the ·:::h..uttle car's
way.
(Tr. 32).
The entry was about 20 feet wide (Tr. 34). The crosscut was
17 feet 6 inches wide, the shuttle car was 8 or LO feet wide (Tr.
3S). The rock which fell was S feet by 6 feet wide, 0 to 6 inches
thick (Tr. 36).
The inspector was unable to tell how far the victim went inby
permanent support (Tr. 36-37). The witness described the sketch at
issue (Tr. 41-43). The document did not show roof support (Tr. 43).
The condition described was considered serious because a man got
injured (Tr. 44). The inspector terminated the notice because a
safety meeting was held (Tr. 4S; Govt. Exh. No. 18S). Therein, the
roof-control plan was explained (Tr. 46). The inspector believed
that the operator showed good faith in abating the condition cited
(Tr. 46-4 7).
The inspector became aware of the accident on August 29, not
August 26 (Tr. 48). The report was given voluntarily by Shamrock
(Tr. 49). The day after he made his visual investigation, he issued
the notice (Tr. SO). He did not issue the violation on the 29th
because he was under the impression that he could not issue one
unless he saw one (Tr. SO). He did not know whether the shuttle
car was moving when the rock fell (Tr. SO-Sl). The sketch on which
the violation was based did not indicate that the shuttle car was
moving when the rock fell (Tr. S2-S3; Govt. Exh. No. l82A p. 3).
Item No. 4 recommended that bolts be installed as required (Tr.
56; Govt. Exh. No. 182A). The inspector understood the recommendation as being made to prevent similar accidents from happening (Tr.
56-57).
The sketch in Government Exhibit No. 182A indicates that the
victim was not in the crosscut area (Tr. 57). The sketch does not
attempt to show the location of roof bolting (Tr. 57). He had no
reason to doubt that the main entry was roof bolted, No. 4 entry,
I section (Tr. 57).
On redirect, he stated that he never gave a date to a notice
other than the date actually served (Tr. 122).

612

B.

Gordon Couch

Respondent initiated its case through the testimony of Gordon
Couch,_ safety director for Shamrock (Tr. 59) • I t was stipulated that
he was qualified and experienced as a foreman, for MSHA inspectors
and as an inspector/supervisor (Tr. 60).
The first report of the injury was on August 27 (Tr. 60). It
showed the injury occurring at 9:45 p.m. on August 26 (Tr. 60; Govt.
Exh. No. 182A). When he arrived at the scene of he accid2nt at 7 a.m.
on August 27, no equipment or anything had been moved (Tr. 61-62).
The shuttle car had about 1,000 pounds of coal in the bucket
(Tr. 62). It indicated to him that it had been unloading coal when
it was shut down and thus stationary (Tr. 62-63). The sketch
involved on page 4 of Government Exhibit No. 182A was his work (Tr.
64-65).
The roof control plan had been exceeded in that it called for
bolts at 5-foot centers in a 20-foot entry and, in fact, they had
been spaced 3 or 4 feet in an 18-foot entry (Ir. 66; Govt. Exh.
Nos. 183, 184).
He testified that there was blood on the bumper of the shuttle
car (Tr. 67). The blood was on the right bumper as observed looking
toward the face of the No. 4 entry (Tr. 68).
From the row of roof bolts on the righthand side to the shuttle
car was about 6 feet supported area (Tr. 69). He did not believe
that Mr. Hollen was 6 feet tall (Tr. 70).

Mr. Couch stated that he spoke with Mr. Collett who was there
at the time of the accident (Tr. 20). Mr. Hollen was in the process
of trying to learn the continuous miner, having been there about
3 weeks (Tr. 70). The rock struck Mr. Hollen on the back and he
was told that the rock was on his feet. His head had hit the shuttle
car bumper (Tr. 70-71). His entire body wouldhave been under supported roof (Tr. 71-72). The roof rock fell from the left corner
of the crosscut up to the edge of the roof bolt which remained intact
(Tr. 74).
The report at issue (Govt. Exh. No. 182A), written by Mr. Couch,
was written to Orville Smith, to recom..~end what is to be done in case
of a man's getting hurt or killed (Tr. 77). With respect to suggested
Item No. 3, he was trying to show the importance of 6 inches as they
were 6 inches of~ being 2 feet 6 inches from the right rib (Tr. 79).
He concluded that the roof control plan had no bearing on this accident (Tr. 80).

613

The witness had an opportunity to interview the victim (Tr. 81).
Mr. Hollen, the victim, stated that he was standing right around a
roof bolt (Tr. 82). Mr. Hollen is still employed by Shamrock, but is
laying carpet because his wife did not want him to go back into the
mine (Tr • 83) •
When the inspector came into the mine on August 29, the entry had
been advanced nearly another full crosscut (Tr. 84-85). There was no
known legal requirement to give the report to MSHA (Tr. 85).
On cross-examination, Mr. Couch testified that he knew everything
was the same because the foreman, Mr. Gilbert, told him so (Tr. 86).
The rock was moved aside after the accident and before Mr. Couch's
investigation (Tr~ 86-87). He conceded that the roof in the area was
drummy and that was probably the reason that the bolts were placed
more closely together (Tr. 87-88).
The witness testified that the rock striking Mr. Hollen's back
must have forced his head into the shuttle car (Tr. 90).
The roof control plan required the bolts to be 2 feet from the
rib when, in fact, the row of bolts was 2 feet 6 inches from the rib
(Tr. 93). That was a violation of the plan (Tr. 93).
Based upon his knowledge and report, he concluded that Mr. Hollen
was in a place where he was entitled to be according to law and regulation (Tr. 101). He did not actually know whether the shuttle car
had been moved (Tr. 103). The sketch showed the rock about 2 feet
further into the crosscut than it actually had been when it fell (Tr.
109).
His memory of the time sequence is that he called the accident
in on Monday, inspectors arrived on Tuesday, and the notice was
brought back on Wednesday (Tr. 114). Thus, though the notice was
dated the 30th, it was received on the 31st (Tr. 114).
The rock cavity extended into the area of permissibility (Tr.
120).
Issues Presented
1. Whether the conditions cited in Notice No. 1 ARR, August 30,
1977, constituted a violation of 30 CFR 75.200?
2. What is the appropriate penalty to be imposed under the Act
if a violation is established?

614

Discussion

30 CFR 75.200 states:
§·75.200

Roof control programs and plans.

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
·falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining
system of each coal mine and approved by the Secretary
shall be adopted and set out in printed form on or before
May 29, 1970. The plan shall show the type of support and
spacing approved by the Secretary. Such plan shall be
reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or
ribs or inadequacy of support of roof or ribs. No person
shall proceed beyond the last permanent support unless
adequate temporary support is provided or unless such
temporary is not required under the approved roof control
plan and the absence of such support will not pose a hazard to the miners. A copy of the plan shall be furnished
to the Secretary or his authorized representative ~nd
shall be available to the miners and their representatives.
The notice charges:
Evidence indicated the approved roof control plan was
not being followed in the crosscut turned right off No. 4
entry on I-section (009) in that the mining machine operator's helper was injured Friday, August 26, 1977, at
9:45 p.m. by a roof fall when he advanced inby permanent
supports for reasons other than to install temporary
support.
(Govt. Exh. No. 182).
The gravamen of this alleged offense is proof that Mr. Cecil W.
Hol.len advanced inby permanent support for an impermissible reason
(Tr. 26, 28).
Demonstration of other violations of 30 CFR 75.200 would increase
the overall degree of Respondent's culpability, but would not stand
by themselves as violations here because they were not charged in the
issued notice (Tr. 28; Govt. Exh. No. 182).

615

The notice here is based on ·a report signed by Mr. Charles
Gilbert and drafted by Mr. Gordon Couch (Tr. 19-20, 50, 52-53; 6465; Govt. Exh. No. 182A). The inspector saw nothing to indicate a
violation other than what was in the report (Tr. 26). The alleged
violation is contained in the last paragraph of the report which says
there was no roof support (Tr. 37). The insp~ctor did not see any
violation (Tr. 50).
In a nontechnical sense, MSHA has not introduced the "best evidence" of the occurrence of a violation. It has not shown why, at a
minimum, it did not call the only eyewitness, the victim, Mr. Hollen,
to at least corroborate the alleged evidence of a violation found in
the report (Govt. Exh. No. 182A). According to Mr. Couch, Mr. Hollen
is still employed by Respondent (Tr. 83) and thus it would appear that
he could be found. Therefore, as the violation is based on evidence
which is not firsthand, its reliability is suspect.
Further, the report, according to its author, was intended to
be a recommendation to Mr. Orville Smith as to what was to be <lone
to avoid future accidents of this nature (Tr. 77). Using such a
report as grounds for issuing a violation would appear to discourage honest appraisal of what should be done to provide further protection for the miner. Such a discouragement would fundamentally
contradict the primary purpose of the Act, (section 2(d)), and would
work against the operator's responsibility to prevent unsafe
practices. (Section 2(e)).
For the above reasons, the report (Govt. Exh. No. 182A) should
be construed in light of its intended purpose and not as an admission
by a party opponent, to be construed against the admitting party.
The inspector's theory was that Mr. Hollen went into the crosscut to avoid an oncoming shuttle car (Tr. 32). He was not even able
to speculate how far Mr. Hollen was supposed to have gone inby permanent support (Tr. 36-37).
Direct contradiction of this speculation is found in the sketch
which showed Mr. Hollen was not in the crosscut area (Tr. 57; Govt.
Exh. 182A). Mr. Couch observed that the shuttle car had about
1,000 pounds of coal in the bucket which led him to conclude that
the shuttle car was unloading coal and thus stationary (Tr. 62-63).
Further~ as Mr. Hollen had a cut on his forehead and a fractured
skull, and as there was blood on the right bumper of the shuttle car
(Tr. 68), it is reasonable to conclude that Mr. Hollen hit his head
on the shuttle car (Tr. 21-22). As Mr. Hollen is less than 6 feet
tall (Tr. 70), the rock hit his back (Tr. 24), knocked him into the
shuttle car (Tr. 21-22), and landed on his fee_t (Tr. 70-71), he
could not have been in the crosscut at all because the shuttle car
was 6 feet from a row of entry roof bolts on the righthand side of
the shuttle car which was supported area (Tr. 69). Therefore,
616

Mr. Hollen's entire body was under supported roof (Tr. 71-72).
Mr. Couch also testified that Mr. Hollen stated during an interview
that be was standing right around a roof bolt (Tr. 82).
It is possible that the fact that the sketch made after the fall
showed the rock was about 2 feet further into the crosscut (Tr. 109;
Govt. Exh. No. 182A), misled the inspector in his conclusions
related to locating Mr. Hollen. I therefore conclude that the inspector's theory, that Mr. Hollen was located inby permanent support in
the crosscut 1 is untenable.
There is the admitted violation of the roof control plan in that
the roof bolt line next to the rib was 6 inches out of line-being
2 feet 6 inches rather than 2 feet from the rib (Tr. 79). However,
this specification is not spelled out in the charge.
Apparently, this fact played no part in the inspector's conclusion as to the cause of the accident. There was no testimony by the
inspector that he saw such noncompliance (Tr. 50). Further, the
inspector, when he visually invescigated the accident scene, would
have seen this roof bolt line (Tr. 30) because it would not have
moved. Nor could the inspector have relied on the sketch contained
in the exhibit as it did not reveal the specific locations of the roof
bolts (Tr. 57; Govt. Exh. No. 182A). Therefore, the inspector could
not have viewed this accident as being caused by a 6-inch deviation
from the plan. This conclusion, by the inspector, is also supported
by the expert (Tr. 60) conclusion of Mr. Couch who found the violation
(Tr. 79, 93) and stated specifically that it had no bearing on the
accident (Tr. 80).
As there is no affinity between the 6-inch bolt deviation and
the accident which caused Mr •.Hollen' s injury, Notice No. 1 ARR,
August 30, 1977, cannot be fairly construed as charging the violation.
I therefore conclude that MSHA has failed to establish a violation
of 30 CFR 75.200 in Notice No. 1 ARR, August 30, 1977, as alleged in
that citation.
Findings of Fact
Upon consideration of the record as a whole, I find:
1. The Judge has jurisdiction over the subject matter and the
parties in this proceeding.
2. An unintentional roof fall occurred on August 26, 1977, at
the No. 4 entry of the I section of the No. 18 Mine (Govt. Exh.
No. 182).
3. As a result of the fall, Mr. Cecil W. Hollen was injured
(Tr. 24; Govt. Exh. No. 182).

617

4. The inspector did not actually see any violations of 30 CFR
75.200 during his investigation of August 29, 1977 (Tr. 26; 30; Govt.
Exh. No. 182).
5.
57,

Mr. Hollen was not in the crosscut when he was injured (Tr.
69, 82; Govt. Exh. No. 182A).

62~63,

6. Mr. Hollen was under "supported" roof when he was injured
(Tr. 71-72, 82).
7. The evidence fails to establish the fact of violation of
30 CFR 75.200 as alleged in 1 ARH, August 30, 1977.
Conciusions of Law
1. This case arises 'under the provisions of section llO(a) of
the Federal Mine Safety and Health Act of 1977, P.L. 95-164
(November 9, 1977), and section 109(a)(l) of the Federal Coal Mine
Health and Safety Act of 1969, P.L. 91-173 (December 30, 1969).
2. The procedural provisions of the above-cited statute have
been complied with.
3. Re.spondent has not violated the above-cited statute as
charged in the notice.
ORDER
. WHEREFORE IT IS ORDERED that the petitwn for civil penalty
filed on August 17, 1978, be and hereby is, DISMISSED.
.....
l"i
~
f

/

•

' ,,.. I!
() .1--:•. 1.C. ( . •.·;1 j
·.{'.,~l;.-/~,.. /"': i-·.{,,;-Y....(f·t.;.,:.<_1
;. ,,,.. "' ¥',

.~·/

Malcolm P. Littlefield, Judge
Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962
(Certified Mail)
Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919
(Certified Mail)

618

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

June 25,. 1979
Civil Penalty Proceeding

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

Docket No. BARB 79-146-PM
A.O. No. 40-00056-05001

v.
County Quarry & Mill

JEFFERSON COUNTY HWY. DEPT. ,
Respondent

DECISION
Appearances:

Darryl A. Stewart, Attorney, U.S. Department of
Labor, Nashville, Tennessee, for the Petitioner;
Telford E. Forgety, Jr., Esquire, Dandridge,
Tennessee, for the Respondent.
·

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a petition for assessment of civil
penalty filed by the petitioner against the respondent on
December 12, 1978, pursuant to Section llO(a) of the Federal Mine
Safety and Health Act of 1977, charging the respondent with one
alleged violation of the provisions of 30 CFR 56.9-87, as set
forth in Citation No. 108414 issued on May 3, 1978 by MSHA
inspector William R. Tally. The citation reads as follows:
The two EUCLID Pit haul trucks did not have audible
reverse alarm warning devices that were operative.
There was no observer to signal when it was safe to
back up.
Respondent filed an answer to the petition on December 20,
1978, and a hearing was subsequently ~eld in Knoxville, Tennessee
on May 24, 1979, and the parties appeared and were represented by
counsel. By agreement of the parties, I issued a bench decision
in this matter, and pursuant to Commission rule 29 CFR 2700.54
that decision is herein reduced to writing and served on the parties.

619

Issues
The issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulations as alleged in the petition for assessment of civil
penalty filed in this proceeding, and, if so, (2) the appropriate
civil penalty that should be assessed against the respondent
for the alleged violations based upon the criteria set forth in
section llO(i) of the Act.
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.
Applicable Statutory and Regulatory Provisions
1.

The Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a)

et~.

2.

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

3. Part 2700, Title 29, Code of Federal Regulations, 43
Fed. Reg. 10320 et seq. (March 10, 1978), the applicable rules
and procedures concerning mine health and safety hearings.
Stipulations
The parties stipulated and agreed that the respondent is
subject to the jurisdiction of the Act, the Secretary of Labor,
and the Connnission and its Judges, that the failure of the respondent
to provide operative audible back-up alarms on two of its pit
haulage trucks constituted a violation of the cited safety
standard in issue, that respondent's annual rock crushing quarry
operation production is 18,871 tons, that the quarry employs 12 ·
individuals, that the conditions cited were timely abated, that
respondent has no prior history of violations, and that a reasonable
penalty will not adversely affect the respondent's ability to
remain in business (Tr. 4-13).

620

Testimony and Evidence Adduced by the Parties
Mr. J. C. Thomas, Superintendent of Roads, Jefferson County
Highway Department, testified on behalf of the respondent. He
explained the scope of the rock crushing quarry operations carried
on by the respondent and confirmed the size and scope of that operation as stipulated to by the parties. He confirmed that the
citation was issued against the two Euclid pit trucks operated
at the quarry but could not recall whether he was present when
the inspector cited the violation. He stated that neither he nor
the foremen were aware of the inoperative back-up alarms prior to
the time of the citation, that breakdowns do occur from time to
time and they are repaired ilillllediately. Respondent's policy is to
inspect the trucks each morning and the driver is required to
conduct the inspection and to report any defects to the pit foreman.
The alarms which were installed on the trucks in question were fuse
types, and upon the recommendation of the inspector, new devices
were ordered and installed to abate the citation. The older
alarms would occasionally blow a fuse, but no such problems have
been experienced since the new alarms have been installed. Men
do not normally work on foot at or near the tipple area where
the trucks are loaded and he knew of no one working in the area
on the day of the citation, but he conceded he was not there at
the time of the inspection. The defective alarms were repaired
and when the new ones arrived they were installed (Tr. 14-22).
Mr. Thomas described the crushing and loading operation and
the routes that the trucks in question normally take during the
day at the quarry. He indicated that the purpose of the ala.rm
is to warn persons in the area that the truck is backing up, but
in most cases the alarm in no louder than the vehicle being driven
·(Tr. 23-33).
MSHA Inspector William R. Talley confirmed that he issued
the citation in question, and he indicated that he observed the
trucks in operation after he cited them, and that they were operated
in reverse and the alarms were inoperative. There was a problem
with a relay and the parts were not readily available. He allowed
the respondent two days to abate since that amount of time was
required to obtain the necessary parts. The conditions were
subsequently abated when he returned to the mine site, but did
not know whether repairs were e~fected earlier or later on the day
on which is issued the citation. He confirmed that there was a
problem with the relays on the back-up alarms and the newer alarms
have solved some of the problems which had been encountered within
the industry at the time the citation issued (Tr. 33-39).

621

Inspector Talley testified that he saw no one around the
trucks when they were in operation except for himself and the
quarry foreman. However, the trucks were not backing up in their
direction and they were out of the way. He described the loading
operation and indicated that the trucks do not use the local highways
but stay strictly on mine property (Tr. 40).
Arguments Presented by the Parties
At the close of the evidence and testimony, the parties were
afforded an opportunity to make oral argument on the record with
respect to the statutory criteria concerning civil penalty
assessments as set forth in section llO(i) of the Act (Tr. 45-49).
Upon consideration of the arguments presented and the evidence
and testimony adduced on the record, findings and conclusions
were rendered from the bench (Tr. 49-53) and they are as follows:
Fact of Violation
Petitioner has established a violation as cited in Citation
No. 108414 and the respondent has so stipulated (Tr. 49).
Prior History of Violations
Respondent has no prior history of violations and that fact
is reflected in the civil penalty assessed by me in this matter
(Tr. 50).
Size of Business and Effect of Penalty on Respondent's Ability to
Remain in Business
Respondent conducts a small quarry operation and the penalty
assessed will not adversely affect its ability to remain in
business (Tr. 50).
Good Faith Compliance
The conditions cited were timely abated, the defective alarms
were repaired prior to the time fixed for abatement, and new
alarms were subsequently installed on the trucks in question (Tr.50).
Negligence
Respondent had a duty to at least insure that the truck drivers
or quarry foreman inspect the trucks in question before allowing
them to be operated without workable alarms. Such an inspection

622

may have detected that they were inoperable. Under the circumstances, I find that respondent failed to exercise reasonable care
to prevent the citation and its failure in this regard amounts to
ordinary negligence (Tr. 51).
Gravity
The lack of operable back-up alarms would normally be a
serious matter. However, on the facts and evidence adduced in
this case I cannot conclude that any of the quarry personnel were
in fact exposed to any hazard. There is no credible evidence that
anyone was on foot in the area where the trucks were operating
at the time of the citation, nor was there any evidence that anyone was exposed to a danger of being run over. As a matter of
fact, respondent indicated that the noise of the trucks during
their normal operation usually precludes the alarms from being
heard. In the circumstances here presented I cannot conclude
that the citation was serious and my finding is that it was not
(Tr. 52).
Order
In view of the foregoing findings arid conclusions, respondent
is ordered to pay a civil penalty in the amount of $35.00 for
the violation cited in Citation No. 108414, issued on May 3, 1978,
within thirty (30) days of the date of this decision. ~/

<-~11

K:i,,,~

/I
f2
G~)All.K.outras
Administrative Law Judge

·

~/
By letter dated June 15, 1978, a copy of which was filed
with me, petitioner's counsel forwarded a check in the amount of
$35.00 to MSHA's Collection Officer which was tendered by the
respondent in full satisfaction of the civil penalty assessment made
by me in this matter at the close of the hearing as part of my
bench decision.

623

FEDERAL MINE SAFETY AND HEALTH REVBEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON. BOULEVARD
ARLINGTON, VIRG tNIA 22203

June 25, 1979

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

Civil Penalty Proceeding
Docket No. DENV 79-39-PM
A/O No. 05-03052-05001

v.
Last Chance 113
WILLIAMS INC.,
and/or MR. W.R. WILLIAMS,
Respondent
DECISION
Appearances:

James Abrams, Attorney, Office of the Solicitor,
Department of Labor, Denver, Colorado, for Petitioner;
Andrew Melechinsky, Enfield, Connecticut, for
Respondent.

Before:

Judge Littlefield

Introduction
This is a proceeding for assessment of a civil penalty against
the Respondent and is governed by section llO(a) of the Federal
Mine Safety and Health Act of 1977 (1977 Act), P.L. 95-164
(November 9, 1977). Section llO(a) provides as follows:
The operator of a coal or other mine in which a
violation occurs of a mandatory health or safety standard
or who violates any other provision of this Act, shall be
assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation.
Each occurrence of a violation of a mandatory health or
safety standard may constitute 2 separate offense.
Petition
On October 26, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for an assesment of
civil penalty charging one alleged violation of the Act.
1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA).

624

Answer
On November 14, 1978, Respondent filed a detailed response to
the all~gation and requested a hearing thereon.
Tribunal
A hearing was held in Denver, Colorado, on June 12, 1979.
MSHA was represented by counsel. Williams, Inc., was represented
by "its Contingency President," and entered a special appearance
only.
Preliminary Motion
The representative of the Respondent at the Commencement of the
hearing offered a written motion entitled "Special Appearance for
Challenging Jurisdiction of this Court" on Constitutional grounds.
The motion was opposed by the Petitioner and denied by the Judge.
There is a strong presumption in favor of constitutionality of
an Act of Congress, Lockport v. Citizens for Community Action, 430
U.S. 259 (1977). An administrative agency, as a general proposition,
does not have power to rule on constitutional challenges to the
organic statute of the agency, Weinberger v. Salfi, 422 U.S. 749
(1975); Johnson v. Robison, 415 U.S. 36-r-(1974). Thereafter,
Respondent's representative participated fully in the hearing.
Charge
Order of Withdrawal

00326611

Date

30 CFR Standard

4/4/78

57.6-107

"Miner was drilling rib at right drift within 5 feet of misfire."

30 CFR 57.6-107 provides as follows: "Mandatory. Holes shall
not be drilled where there is danger of intersecting a charged or
misfired hole."
Issues
(1)

Has there been a violation of the standard?

(2)

If so, what civil penalty should be assessed?

Evidence
MSHA presented the testimony of Porfy Tafoya, a Federal Mine
Inspector for the U.S. Department of Labor.
Respondent offered no evidence.

625

Findings of Fact
(1) Inspector Tafoya inspected the Last Chance #3 mine of
the respondent on April 4, 1978 (Tr. 21).
(2) He has held his present position of mine inspector
for 3 years and during that time has conducted over 400 inspect ions (Tr. 20) •
(3) He had 22 years mining experience prior to working for
MSHA (Tr. 20).

(4) During the inspection he observed holes drilled on the
right hand drift (Tr. 21).
(5) The holes that had been drilled were found to be loaded
and charged (Tr. 22).
(6) He observed one hole that had not exploded from the previous round and it was still in the face (Tr. 22).
(7)

This hole would be categorized as misfired (Tr. 22).

(8) The holes that were drilled were within 4-1/2 to 5 feet
of the hole that was misfired (Tr. 23).
(9) The misfired hole and the hole being drilled were in an
area that was regularly being worked (Tr. 24).
(10)

The hazard presented would be one of explosion (Tr. 24).

(11) If an explosion did occur an accident or injury to
employees ranging from serious to fatal could result (Tr. 25).
(12) Inspector Tafoya issued an Order of Withdrawal on
April 4, 1978, citing therein Section 57.6-107.
Conclusions of Law
(1) The Judge has jurisdiciton over the subject matter and the
parties in this proceeding.
(2) All procedural prerequisites established in the statutes
and regulations cited above have been complied with.
"

(3) Respondent was the operator of a mine and is subject to
the provisions of the Mine Safety and Health Act of 1977.
(4) An imminent danger existed at the Last Chance #3 mine on
April 4, 1978.
626

(5)

Williams, Inc., has violated 30 CFR 57.6-107 as charged.

Penalty Criteria
Ass·essment of a civil penalty, upon the finding of a violation,
is mandatory (See section llO(i) of the Act).
There is neither evidence concerning the operator's history
of previous violations nor the size of his business. As to
gr.avity, I find the violation to be serious and the result of
negligence on his part. He did effect rapid compliance to abate
the cited conditions. Although the operator is now out of business a reasonable civil penalty would be in order.
Based on the testimony heard at the hearing, I conclude that
a penalty of $225 is reasonable based upon the above criteria and
particularly the fact that the operator is now out of business.
The decision made from the BENCH at the hearing is hereby
AFFIRMED (Tr. 44).
ORDER
WHEREFORE IT IS ORDERED that Williams, Inc., pay the aboveassessed civil penalty in the amount of $225 within 30 days from the
date of this decision.
/?

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Al./

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t_-r-~ ·~I

Malcolm P. Littlefield
Administrative Law Judge
Distribution:
Leo McGinn, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
James Abrams, Office of the Solicitor, 1585 Federal Building,
1961 Stout St. Denver, CO 80294 (Certified Mail)
Williams, Inc., P.O. Dr 12, Naturita, CO 81422
(Certified Mail)
Gregory K. Hoskin, Attorney, P.O. Box 40, Grand Junction,
CO 81501 (Certified Mail)
Mr. W.R. Williams, P.O. Box 504, Marco Island,
FL 33937 (Certified Mail)

627

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

PEABODY COAL COMPANY,
Applicant

Application for Review

v.

Docket No. VINC 78-386

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

Citation No. 274635
May 18, 1978
Sunnyhill No. 9 South Underground
Mine
DECISION

This case was remanded to me from the Commission on May 2, 1979.
After reviewing the file I issued, on May 9, 1979, a notice to the
parties, wherein each was required to attempt to stipulate the facts but
if a stipulation could not be reached, to submit within 30 days, its
contentions as to the facts and its argument concerning them.
Peabody Coal Company filed a timely statement of facts and argument, but MSHA has not responded. I will therefore accept the facts as
they appear in the statement filed by the Applicant and as corroborated
by the material previously filed in the case.
On October 17, 1977, an "accident" occurred at Applicant's mine. It
was not the type of accident which the regulations in effect at that
time required the operator to report to MSHA. 30 CFR 80.l(g) excludes
injuries "requiring only first-aid treatment." The regulation which
Applicant is accused of violating, 30 CFR 50.20 did not become effective
until December 30, 1977, and the event which occurred 2 months earlier
would have been reportable if it occurred after the effective date of
30 CFR 50-20. MSHA's issuance of the citation on May 18, 1978, wa~
clearly an attempt to give ex post facto treatment to the new regulation
and was for that reason invalid.
The citation is vacated and the case is dismissed.

~e?J?Wtt(
Charles C. Moore, Jr.
Administrative Law Judge
Entered:

/'

June 26, 1979
~-

Distribution:
Thomas R. Gallagher, Esq., Peabody Coal Company, P. 0. Box 235, St.
Louis, MO 63166 (Certified Mail)
Edward H. Fitch, Esq., MSHA, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Harrison Combs, Esq., UMWA, 900-15th Street, NW., Washington, D.C.
20005 (Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMIVUSSION
OFFICE OF ADMINISTRAllVi:: LAW JUDGES
4015 WILSON BOUl.EVARD
ARLINGTON.VIRGINIA 22203.

JUN 2 6 1979
Civil Penalty Proceeding

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

Docket No. DENV 78-527-P
A.C. No. 42-00081-02014V

v.
Co-op Mine
BILL .w. STODDARD, W~ J. OWENS,
..
ELLERY KINGSTON, ELDEN
KINGSTON, GERALD HANSEN, AND
JOHN GUSTAFSON, d/b/a CO-OP
MINING COMPANY,
Respondents !/
DECISION
Appearances:

James L. Abrams, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah, for
Respondents.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceeding was brought pursuant
to section llO(a) of the Federal Mine Safety artd Health Act of 1977,
30 U.S.C. § 820(a). The Mine Safety and Health Administration (MSHA)
filed a petition for the assessment of a civil penalty on July 31,
1978, alleging that Respondents committed a violation of 30 CFR
75.400. On January 16, 1979, Respondents filed their answer contesting the violation. A hearing was held in Salt Lake City, Utah, on
May 18, 1979, at which the parties were represented by counsel.
1/ At the beginning of the hearing, Petitioner moved to amend the
caption in this case, Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Co-Op Mining Company, to reflect that the
business was a partnership. Respondents did not object to this
proposed change and agreed to submit a letter which would provide
the names of the partners (Tr. 4-6). This letter was filed on
May 25, 1979, and the caption has been amended accordingly.

629

Evidence was received regarding Citation No. 7-0045 (December 12,
1977), which alleged a violation of 30 CFR 75.400. 2/ This regulation requires that •i[c]oal 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."
On the basis of the evidence presented, and in light of the
statutory critetia, a decision was made from the bench finding a violation and assessing a penalty of $100. The following is a summary
of the findings made regarding the citation:
(a) A violation did occur (Tr. 86). The finding of the
existence of the accumulations was based on the uncontradicted
testimony of Inspector Lawrence Ganser (Tr. 16-17, 25, 76, 85-86).
The inspector's estimate that the accumulations had existed over a
shift or two was accepted (Tr. 20; 86).
(b)

The operator is small to medium 1n size (Tr. 8, 87).

(c) There is a history of prior violations. Some of these
are of 30 CFR 75.400: although not a significant number. Petitioner's
Exhibit No. 1 shows that there have been three violations of this
standard assessed for $106, $375, and $125. They were settled for
$106,$110, and $67, respectively (Tr. 7, 90). This was not a bad
history (Tr. 87).
(d) The penalty assessed will not affect the ability of the
operators to continue in business (Tr. 87).
(e) Good faith efforts were made to achieve rapid compliance
(Tr. 88).
(f)

The violation was serious (Tr. 88).

(g)

There was some negligence on the operators' part (Tr. 88).

Consideration has been given to the fact that the belt in this
case was new and problems had occurred with its use (Tr. 40-42,
. 52-54' 87).
(h) Based on the circumstances which failed to show any exceptional factor requiring a more than normal penalty, the operator
should be assessed $100 (Tr. 90-91).
2/ . Lawrence J. Ganser, the inspector who issed the citation, testified as a witness for the Petitioner (Tr. 14-38, 77-81). Bill W.
Stoddard (Tr. 39-64, 83-84) and Nathari Atwood (Tr. 65-79) testified
for Respondents.

630

The decision made from the bench finding a violation of 30 CFR
75.400 and assessing a penalty of $100 is hereby AFFIRMED. It is
ORDERED that Respondents, within 30 days of the date of this dec-ision, pay the penalty of $100 assessed in this proceeding. 1_/

d~J~~
Franklin P. Michels
Administrative Law Judge
Distribution:
James L. Abrams, Esq., Office of the Solicitor, U.S. Department
of Labor, 15019 Federal Office Building, Denver, CO 80202
(Certified Mail)
Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City,
UT 84115 (Certified Mail)
3/ A question was raised on the matter of scheduling the hearing
(Tr. 92-98). Counsel for the Solicitor seemed to raise an issue on
the matter of the number of times the hearing yyas rescheduled. This
is all a matter of record and it remains a puzzle why counsel
believed it should be further recorded in the transcript.
The hearing was first scheduled for M8y 16 in Salt Lake City,
Utah. It was later changed to Price, Utah, still for May 16. Subsequently it was rescheduled for Salt Lake City, first for May 16,
1979, and later to May 18, a Friday.
Such a number of changes is not the ordinary practice of the
presiding Judge and, in fact, I know of no other case where this has
happened. It was necessitated by the changes which occurred.with
regard to the group of cases set for hearing at that time. Only a
few days prior to the week of hearings, the presiding Jud3e learned
that another scheduled case was to take a full two days, Tuesday and
Wednesday, and· possibly another day in the week. There was no way,
therefore, that all the cases could be heard, unless this case was
rescheduled for Friday afternoon of that week of hearings.
Counsel further complains that he was not orally notified of the
change. My instructions to my law clerk have always been to notify
the parties by telephone when a late change is made in scheduling,
and I fully believed this had been done. If that was not done in
this instance, it was a regrettable oversight, and I have taken steps
to prevent such a happening in the future. In any event, the
Solicitor was notified by certified mail by an order issued May 11,
1979, and received on May 15, 1979. This was a full three days prior
to the hearing and a day pri~r to the previously ·scheduied date.
Counsel has given no facts showing he was in any way prejudiced by
the change in dates.

631

FEDERAL MINE SAFETY AND M~:ALTM REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WIL.SON HOULEVARD
ARLINGTON, VIRGINIA 22203

June 27, 1979

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

Civil Penalty Proceeding
Docket No. PITT 78-420-P
A/O No. 36-00818-02013V

v.
Foster No. 65 Mine
LEECHBURG MINING COMPANY,
Respondent
DECISION
Appearances:

Anna Wolgast, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Henry McC. Ingram, Esq., R. Henry Moore, Esq.,
Rose, Schmidt, Dixon, Hasley, White & Hardesty,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On July 31, 1978, a petition was filed for assessment of civil
penalty against Leechburg Mining Company for alleged violations of
30 CFR 75.200, 75.202, 75.400, and 75.403. This petition was filed
pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 820 (a) (1977), hereinafter referred to as the
Act. An answer was filed by the Respondent on August 18, 1978.

A notice of hearing was issued on August 22, 1978, setting the
hearing date for October 31, 1978.
On October 18, 1978, a motion for continuance was filed by
counsel for MSHA. An order granting the motion for continuance was
issued on October 20, 1978, rescheduling the hearing for January 3,
1979. An amended notice of hearing was issued on October 31, 1978,
changing the hearing date from January 3, 1979, to December 5, 1978.
On November 20, 1978, the Leechburg Mining Company filed a motion
to remand. A response of the Secretary of Labor in opposition to the
motion to remand was filed by MSHA on November 27, 1978. The motion
to remand was denied by an order issued on December 1, 1978.

6.32

Leechburg and MSHA filed posthearing briefs on January 25, 1979,
and January 26, 1979, respectively. Leechburg filed .a reply brief on
February 9, l979. MSHA did not file a reply brief.
II.

Violations Charged

Order No.

Date

7-0032 (1 GFM)
7-0033 (1 JAB)
7-0035 (1 JAB)
7-0036 (1 JAB)
7-0038 (1 JAB)
7-0047 (1 JAB)
III.
A.

October 6, 1977
October 3, 1977
October 6, 1977
October 11, 1977
October 12, 1977
November 30, 1977

CFR Section
30 CFR 75.200
30 CFR 75.403
30 CFR 75.400
30 CFR 75.400
30 CFR 75.202
30 CFR 75.200

Evidence Contained in the Record
Stipulations

At the commencement of the hearing, counsel for both parties
entered into stipulations which are set forth in the findings of fact,
infra. ··
B.

Witnesses

MSHA called as its witnesses Jesse A. Bates, an MSHA inspector,
and Gerald F. Moody, Jr., an MSHA inspector.
Leechburg called as its witnesses Harold F. Dunmire, President of
the Leechburg Mining Company; Donald A. Myers, a section boss employed
by the Leechburg Mining Company; Joseph Arduino, a mine foreman
employed by the Leechburg Mining Company; George E. Rittenberger, a
mine superintendent employed by the Leechburg Mining Company; Walter
Vakulick, an assistant mine foreman employed by the Leechburg Mining
Company; and Joel C. Dunmire, the safety director employed by the
Leechburg Mining Company.
C.

Exhibits
1.

MSHA introduced the following exhibits into evidence:

a. M-1 is a computer printout listing past violations at Leechburg's Foster No. 65 Mine.

b. M-2 is a computer printout providing the total
production tonnage for 1976 through 1978.
c. M-3 is a copy of the roof control plan in effect
at the time of the subject violations.

633

d. M-9 is a copy of Order 1 GFM, October 6, 1977,
30 CFR 75.200.
e.

M-10 is a termination of M-9.

f. M-11 is a copy of the inspector's statement
accompanying M-9.
g. M-12 is a copy of Order No. 1 JAB, October 3, 1977,
30 CFR 75.403.
h.

M-13 is a termiaation of M-12.

i.

M-14 is a dust analysis report.

j.

M-15 is the inspector's statement accompanying

M-12.
k. M-16 is a copy of Order No. 1 JAB, October 6,
1977, 30 CFR 75.400.

1.

M-17 is a termination of M-16.

m.

M-18 is the inspector's statement accompanying

M-16.
n. M-19 is a copy of Order No. 1 JAB, October 11,
1977, 30 CFR 75.400.
o.

M-20 is a termination of M-19. ·

p.

M-21 is the inspector's statement accompanying

M-19.
q. M-22 is a copy of Order No. 1 JAB, October 12,
1977, 30 CFR 75.202.
r.

M-23 is a modification of M-22.

s.

M-24 is a termination of M-22 and M-23.

t.

M-25 is the inspector's statement accompanying

M-22.
u. M-26 is a copy of Order No. 1 JAB, November 30,
1977, 30 CFR 75.200.
v.

M-27 is a termination of M-26.

w.

M-28 is the inspector's statement accompanying

M-26.

634

x. M-29a is a drawing made by Inspector Moody in
Arlington, Virginia.

2.

y.

M-29b is a drawing made by Inspector Moody.

z.

M-30 is a sketch of the violation cited in M-26.

Leechburg introduced the following exhibits into evidence:

a.
No. 65.
b.

OX-1 is a map of Kittanning Coal, Foster Mine
OX-2 is a copy of a MESA memorandum dated July 27,

1977.
c. OX-3 is a drawing representing the approximate
face locations on October 6, 1977, in 6 right mains and
3 butt left.
d. OX-4 1s a copy of the ventilation plan of the
Foster No. 65 Mine, in effect at the time of the subject
orders.
e.

OX-5 is a map of a portion of the Foster No. 65

Mine.
f. OX-6 contains copies of mechanical loading
reports.
g. OX-7 is a copy of a purchase order, dated
October 20, 1977, confirming the order of a "Big Sam"
Spray Applicator.
h. OX-8 is a summary of the cost of materials used
in improving track haulage.
i. OX-9 is a copy of a 104(c)(l) notice admitted
into evidence to correct exhibit M-1.

j. OX-10 1s a letter from the Solicitor's Office of
the Department of Labor enclosing a copy of the
modification.
k. OX-12 is a drawing of the intersection cited
in M-26.
1. OX-13 contains financial statements of the
Leechburg Mining Company.

635

3. OX-11 is a document relating to the history of violations
at the Foster No. 65 Mine. It was marked for identification at the
hearing, and received into evidence by a posthearing order dated ·
January 16, 1979.
4. OX-14 is an affidavit, mentioned at the hearing (Tr. 450-54),
and received in the Office of Administrative Law Judges on December 12,
1978. The objection to its admission into evidence was sustained by
an order dated January 16, 1979. The document has been ordered filed
in a separate envelope and retained with the official file in this
case in the event review is sought as to the decision in this case.
5. OX-15 is a copy of Leechburg's corporate income tax return
for the year ending June 30, 1978. It was admitted into evidence by
an order dated January 9, 1979.

IV.

Issues

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

Opinion, Findings of Fact, and Conclusions of Law

A.

Stipulations

The following stipulations were filed by the parties at 9:40 a.m.
on December 5, 1978:
1. This proceeding is governed by the Federal Coal Mine Health
and Safety Act of 1969, the Federal Mine Safety and Health Act of
1977, and the standards and regulations promulgated thereunder.
2. The Administrative Law Judge has jurisdiction over this
proceeding.
3. Leechburg is the operator of the Foster No. 65 Mine and as
such, is subject to the jurisdiction of the above~referenced Acts.

4. The MSHA inspectors who issued notices and orders which are
the subject of this hearing were, at the time the notices and orders

636

1

were issued, duly authorized representatives of the Secretary of the
Interior.
5. Copies of the notices and orders which are the subject of
this hearing are authentic.
6. The computer printout listing past violations at Leechburg's
Foster No. 65 Mine from January 1, 1970, to October 3, 1977, is an
authentic copy of Office of Assessments' data contained in the
computer at Denver, Colorado (Exh. M-1).
The computer printout providing the total production tonnage for
1976 through 1978 is an authentic copy of Office of Assessments data
contained in the computer at'Denver, Colorado (Exh. M-2).
The copy of the roof control plan is an authentic copy of the
plan in effect at the time of the violations which are the subject
of this case (Exh. M-3).
Respondent reserves the right to challenge the content of the
three documents listed immediately above.
B.

Occurrence of Violation, Gravity, Negligence and Good Faith

(1)

Order No. 7-0032 (1 GFM), October 6, 1977, 30 CFR 75.200
(a)

Occurrence· of Violation

MSHA inspector Gerald F. Moody, Jr., arrived at Leechburg Mining
Company's Foster No. 65 Mine at approximately 7:30 a.m. on October 6,
1977, to conduct a regular roof control inspection (Tr. 5, 6). He
was accompanied on the inspection tour by Mr. Donald A. Myers,
Leechburg's section boss. The inspector examined the face areas in
No. 23 and No. 24 rooms in 1 Left off 6 Right section, where he
observed the conditions cited in the subject withdrawal order. The
condition was described by Inspector Moody as follows:
The approved roof control plan was not being complied
with in the face area of No. 23 room in 1 Left off 6 Right
Section approximately 200 feet from survey station 12+35
in that the distance from the right rib to the adjacent
row of temporary roof supports varied from six feet to six
feet 10 inches for the entire length of the cut (20')
(Exh. M-9, Tr. 19).
The inspector also stated that:
The approved roof control plan requires temporary
roof supports to be installed not more than 5 feet from

637

the tib and to be installed within 30 minutes after the mining sequence is completed. This completed cut was mined on
the 4 p.m. to 12 midnight shift on October 5, 1977, and evidence (time, date, initials and foot prints) indicated that
this area was entered and examined by the preshift examiner
at approximately 6:40 a.m. on October 6, 1977, the operator
should have known the violation existed since a preshift
examination was made in this section.
(Exh. M-19, Tr. 19).
After the section foreman had two workmen set additional posts on
the righthand side of the working place to reduce the spacing, the
inspector measured the distance between the right rib and the first
row of temporary supports, and contemporaneously sketched the conditions (Tr. 23, 24, M-29b). The four temporary supports in question
measured 6 feet 10 inches, 6 feet, 6 ~eet 6 inches and 6 feet
10 inches, respectively from the right rib (Exhs. M-29a, M-29b).
The Respondent did not dispute the accuracy of the inspector's
mea·surements.
Based on these observations, the inspector issued Withdrawal Order
No. 1 GFM for a violation of the approved roof control plan and 30 CFR
75.200. 1/ Minimum safety requirements for installing roof supports
in 20-foot-wide cuts are described in Drawing N6. 1 of the roof control plan applicable on October 6, 1977 (Exh. M-3).
According to the
inspector, that plan provides for at least 12 temporary supports to be
installed in a 20-foot cut so that no distance greater than 5 feet
exists between any two s~pports or between a support and the mine rib
(Tr. 19, 22, 45-47).
1/

Section 75.200 Roof control programs and plans:
"Each operator shall undertake to carry out on a continuing basis
a program to improve the roof control system of each coal mine and the
means and measures to accomplish such system. The roof and ribs of
all active underground roadways, travelways, and working places shall
be supported or otherwise controlled adequately to protect persons
from falls of the roof or ribs. A roof control plan and revisions
thereof suitable to the roof conditions and mining system of each coal
mine and approved by the Secretary shall be adopted and set out in
printed form on or before May 29, 1970. The plan shall show the type
of support and spacing approved by the Secretary. Such plan shall
be reviewed periodically, at least every 6 months by the Secretary,
taking to consideration any falls of roof or ribs or inadequacy of
support of roof or ribs. No person shall proceed beyond the last
permanent support unless adequate temporary support is provided or
unless such temporary support is not required under the approved
roof control plan and the absence of such support will not pose ·
a hazard to the miners. A copy of the plan shall be furnished to
the Secretary or his authorized representative and shall be available to the miners and their representatives."

638

Respondent contends that no violation of the roof control plan
exists, arguing that the plan does not require the temporary supports
in question to be within 5 feet of.the right rib. The Respondent
basis its argument on an analysis of the inspector's testimony, concluding that the portions of the roof control plan relied on by him
do not support the 5-foot requirement.
First, the Respondent argues, the inspectur's reliance on Safety
Precaution 3(b) as a source of the 5-foot requirement is misplaced.
Safety Precaution 3(b) states:
Only those persons engaged in installing temporary
supports shall be allowed to proceed beyond the last row
of permanent supports until temporary supports are
installed. Before any person proceeds inby permanently
supported roof, a thorough visual examination of the
unsupported roof and ribs shall be made. If the visual
examination does not disclose any hazardous condition,
persons proceeding inby permanent supports for the purpose of testing the roof by the sound and vibration
method and installing supports shall do so with caution
and shall be within 5 feet (less if indicated on drawings)
of a temporary or permanent support. If hazardous conditions are detected, corrective action shall be taken to
give adequate protection to the workmen in the area
involved.
The subject matter of Safety Precaution No. 3(b) does not
encompass the spacing of temporary supports. The 5-foot reference
in it refers to a person's position with relation to a temporary
support. I therefore agree with Respondent's contention that Safety
Precaution No. 3(b) does not require the spacing of temporary
supports to within 5 feet of the right rib.
Second, the Respondent argues that Drawing No. 1 of the plan
(Exh. M-3) is not a source of the 5-foot requirement bec·ause it does
not specifically require 5-foot centers for temporary supports. I
disagree with the Respondent's argument.
The inspector testified that "the spacing on the temporary roof
supports in the scale indicate that they will be within five feet of
the rib" (Tr. 46). The inspector explained this by stating: "It is
fairly obvious that the place being 20 feet wide, then three temporary
roof supports set across the work place are evenly spaced at approximately five feet apart" (Tr. 47). I agree with this interpretation
of Diagram No. 1 of the roof control plan (Exh. M-3). Although it
can be argued that the plan is ambiguous, the ambiguity is resolved
by the testimony of Respondent's own witness. Mr. Harold F. Dunmire,
the president of the Leechburg Mining Company, testified that he was
familiar with the roof control plan relative to the installat.ion of

639

temporary roof supports. According to Mr. Dunmire, the minimum
requirements require the installation of temporary supports on 5-foot
centers, both laterally and inby (Tr. 72-73).
I therefore conclude that the roof control plan's minimum
requirements mandated that the row of supports in question be not
greater than 5 feet from the right rib. I also conclude that the
temporary supports in question were placed from 6 feet to 6 feet
10 inches from the right rib, and that the requirements of the roof
control plan (Exh. M-3) had not been fulfilled.
(b)

Gravity

A sound vibration test revealed that the roof in the working
place was not drummy (Tr. 11, 29). Sounding indicates the roof condition to a depth of approximately 4 feet (Tr. 54, 55, 388). There
were no slips in the actual working place (Tr. 35, 43-44), although
there were slips outby (Tr. 35, 36). Inspector Moody described the
roof in the working place as "normal" (Tr. 35, 36), while the respondent's witnesses classified the roof conditions as ranging from "good"
to ':excellent" (Tr. 52, 55).

Mr. Dunmire and Mr. Myers testified that it was standard operating procedure to drill 6-foot test holes in the roof to determine
whether the overlying strata was solid, or whether it contained any
fissures or breaks (Tr. 56, 71). However, Mr. Myers admitted that
test holes had not been drilled in the area between the right row of
temporary supports.and the right rib (Tr. 56) .. Te~t holes had been
drilled in the general vicinity of the violation, and no slips were
reported within 50 feet of the face of 23 room on October 6, 1977
(Tr. 58, 59). Additionally, the cut was less than 20 feet wide
(Tr. 24).
Mr. Myers testified that he was responsible for instructing his
crew to install temporary supports (Tr. 49), and that he hsd been
instructed by the company with respect to the installation of temporary supports (Tr. 50). Mr. Myers also testified that the company
had instructed him to install 16 temporary supports instead of the
12 posts required by the roof control plan (Tr. 51). He had been
instructed to place the first row of posts 5 feet from the bolts,
with the other rows of posts on 4-foot centers (Tr. 50). He had
relayed these instructions to his crew (Tr. 51). He admitted that he
had not counted the number of temporary supports in No. 23 room (Tr.
61-62). Inspector Moody's testimony indicates that only 12 posts
were present (Tr. 23).
Mr. Myers testified that the presence of 16 temporary supports
indicates added support (Tr. 59).

However, both Mr. Myers and

Mr. Moody testified that the spacing of the posts, not the number of
posts, is the primary consideration in the roof support scheme
envisioned by the roof control plan (Tr. 37, 60).

640

At least one worker, the preshift examiner, was exposed to the
hazard (Tr. 21). Markings on the wall indicated that he had proceeded
inby the permanent roof supports to examine the inadequately supported
area at approximately 6:40 a.m. on October 6, 1977 (Tr. 15).
Mr. Myers was aware that the preshift examiner had been in the area
(Tr. 56, 57). The temporary supports had been installed prior to the
preshift examiners entry into the area (Tr. 53).
Inspector·Moody testified that he deemed the violation serious
because all roof control violations are inherently serious (Tr. 16).
He assumed that any resulting injury would be "disabling," not
"permanently disabling" or "fatal" (Tr. 33-34).
Based on the foregoing, I find the violation to be a serious one.
(c)

Negligence

It was Mr. Myers' responsibility to check the area to assure
proper installation of the temporary supports (Tr. 53). He testified
that he was able to ascertain how the right hand row of temporary
supports had been improperly placed. The row of posts on the left
hand side had been placed too close to the left rib (Tr. 63); i.e.,
approximately 3 feet from the left rib. The workers measured over
from that line and placed the remaining rows on 4-foot centers, but
they did not measure the distance between the righthand row and the
right rib (Tr. 51-52). Thus, the improper spacing of the lefthand
row of posts threw the last row out of line (Tr. 63).
Both Inspector Moody and Mr. Myers agreed that the condition was
readily observable (Tr. 6, 54). This readily observable condition
should have been observed by the preshift examiner and relayed to the
operator (Tr. 15). The condition required only 12 minutes to correct
(Tr. 12, 37, Exhs. M-9, M-10).
Based on the foregoing, I conclude that the operator demonstrated
ordinary negligence.
(d)

Abatement

The violation was abated in 12 minutes (Tr. 12, 17, 37). I find
that the operator displayed good faith in achieving rapid abatement.
(2)

Withdrawal Order No. 7-0033 (1 JAB), October 3, 1977, 30 CFR 75.403
(a)

Occurrence ~f Violation

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65
Mine at 7:25 a.m. on October 3, 1977, to conduct a regular inspection
(Tr. 80). He was accompanied on the inspection. by Mr. Joseph Arduino,
the mine foreman (Tr. 80). The inspector traveled to the No. 27 room

641

off No. 1 entry 1 Left section off 6 Right Mains (Tr. 80-81, Exh.
M-12). The inspector testified that he observed an area 40 feet long,
extending from 40 feet outby the face of No. 27 room to 80 feet outby
which was inadequately rock dusted (Tr. 80-81, 81-85, Exh. M-12)." He
subsequently issued the subject withdrawal order.
Mr. Bates testified that his initial determination of the extent
of the inadequately rock dusted area was based on visual observation
(Tr. 81~82). He stated that he observed the floor and the ribs, and
that they were ndark" and "real dark," respectively (Tr. 81-82).
Visual observation revealed very little rock dust on the floor and
ribs (Tr. 82). The inspector testified that he caused samples to be
taken from the floor and ribs, identified them, and sent them to the
Dust Analysis Center in Mount Hope, West Virginia, to substantiate the
•violation (Tr. 82, 85-95). The result of the dust sample analysis
revealed 38.3 percent incombustible material contained in the floor
sample, and 27.1 percent incombustible material contained in the rib
sample (Exh. M-14). The regulations require that all areas within
40 feet of all working faces be rock dusted so that the incombustible
content of the combined coal dust, rock dust and other dust shall be
not less than 65 percent. 30 CFR 75.402, 75.403. ~/
Inadequate rock dusting cannot be proven by visual observation
alone; samples must be collected and subjected to laboratory analysis.
Hall Coal Company, Inc., 1 IBMA,175, 178, 79 I.D. 668, 1971-1973
CCH-OSHD par. 15,380 (1972). Respondent questions the validity of
the test results contained in Exhibit M-14 (Tr .. 82-95, Respondent's
Post-Trial Brief, pp. 9-10). According to the Respondent:
2/

30 CFR 75.402 states:
"All underground areas of a coal mine, except those areas in
which the dust is too wet or too high in incombustible content to
propagate an explosion, shall be rock dusted to within 40 feet of all
working faces, unless such areas are inaccessible or unsafe to enter
or unless the Secretary or his authorized representative permits an
exception upon h~s finding that such exception will not pose a hazard
to the miners. All crosscuts that are less than 40 feet from a
working face shall also be rock dusted."
30 CFR 75.403 states:
"Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a
coal mine and maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and other dust shall be
not less th~n 65 per centum, but the incombustible content in the
return aircourses shall be no less than 80 per centum. Where methane
is present in any ventilating current, the percentum of incombustible
content of such combined dusts shall be increased 1.0 and 0.4 per
centum for each O.l per centum of methane where 65 and 80 per centum,
respectively, of incombustibles are required."

642

No evidence was produced to established a complete
chain of custody. See, McCormick on Evidence § 212,
pp. 527-8 (2d ed. 1972). A rather precarious method of
identification was used in that, at the time of che Order,
the samples were marked as being from the Foster 65 Mine,
dated, and the inspector's name was attached (Tr. 86-8).
The location within the mine was put on a card, which was
not attached to the samples, and included in the package
to the Mt. Hope Dust Anaylsis Laboratory (Tr. 88). No
identifying serial number or any other clear identification was attached to the samples (Tr. 86). Only the
results of the tests were returned to the inspector, not
the samples (Tr. 89). The inspector was unable to testify
as to the methods of testing employed and their probable
accuracy (Tr. 90). There is no indication on M-14 as to
who, if anyone, tested these particular samples. No one
from the Dust Analysis Laboratory testified as to the
testing procedures or their accuracy. •
After citing NLRB v. Remington, 94 F.2d 862, 873 (2d Cir. 1938),
Respondent then stated that Exhibit M-14 should be given little, if
any, weight (Respondent's Brief, pp. 9-10).
Respondent's counsel had stipulated to the authenticity of the
document (Tr. 92).
The Respondent's criticisms of the dust analysis report can only
be considered as challenges as to the probative weight of the evidence, not its admissibility. Co-op Mining Company, 3 IBMA 533,
81 I.D. 780, 1974-1975 CCH-OSHD par. 19,162 (1974). According to the
Interior Board of Mine Operations Appeals:
[W]hen admitted into evidence, if such a report shows that
the percentage of incombustible content does not meet the
required standard, it est.ablishes a prima facie case of a
violation. Of course, the operator may attack the accuracy
and the reliability of the report itself, the regularity of
the test procedure, and offer any other evidence it has in
rebuttal. But where no such challenge is made, or where
the Judge finds such challenge does not meet or overcome
the presumption of verity which attaches to the report,
the Judge is left with a prima facie showing that a violation did, in fact occur. 3 IBMA at 539. (Citations
omitted.)
Under the above decision of the Board of Mine Operations Appeals,
the dust analysis report (Exh. ·M-14) is sufficient.to establish a
prima facie case for a violation of 30 CFR 75.403 because the report
shows that the percentage of incombustible content does not meet the
required incombustible content standard. The Respondent offered no

643

evidence at the hearing attacking the accuracy and reliability of the
test procedure, and offered no probative evidence to rebut the
report's findings.
The Respondent cannot claim prejudice from the decision to admit
the report, or from a decision to accord it weight. The Respondent
clearly knew of the report's existence because a copy of it was
attached to the petition for assessment of civil penalty, filed on
July 31, 1978, and received by the Respondent on August 7, 1978. The
Respondent did not pursue the matter with a degree of diligence
indicative of prejudice resulting from the report's receipt into evidence. The Respondent did not attempt to ascertain the identify of
the person who prepared the analysis and report, and did not attempt
·to subpoena him under 29 CFR 2700.47.
In light of the foregoing, I find that MSHA has established a
prima facie case for a violation of 30 CFR 75 .403, and that the
violation has been established by a preponderance of the evidence.
29 CFR 2700.48. It shotld be noted that Respondent in its brief did
state that from the evidence elicited at the hearing there appeared
to have been a nonserious violation of section 75.403 (RespondenL's
Brief, p. 8).
(b)

Gravity

Inspector Bates testified that the faces in rooms 21, 23, and 25
were the working faces during the mining cycle (Tr. 105). He stated
tht he saw at least six people working in the area at the time of the
inspection (Tr. 97, 123), and that mining was going on in No. 21, 23,
and 25 rooms (Tr. 103). He stated that, to the best of his knowledge,
no one was working in No. 27 room at the time he issued the order
(Tr. 124).
The inspector identified trailing cables as a possible source of
ignition (Tr. 98, 103, 123}. These cables were located in the outby
crosscuts, and lead to the power center (Tr. 103). The source of
ignition was at least 50 feet from the condition observed in No. 27
room (Tr. 104, 106, 123). He stated that the cables were energized
(Tr. 123). He stated that he knew there was electrical power in the
section because they were running and operating the equipment (Tr.
104). He admitted, under cross-examination, that an absence of
electrical power on the section, if proven, would greatly reduce the
hazard of fire and explosion (Tr. 107-08).

Mr. Arduino stated that the mining equipment was located in
Nos. 21, 22, 23, and 24 rooms because he had intended to mine in those
rooms- (Tr. 150). However, his testimony conflicted with the testimony
of Inspector Bates. Mr. Arduino testified that no mining activity
was being conducted on the section at the time Inspector Bates issued
the order because the power was shut off (Tr. 149). According to

644

Mr. Arduin.o, the "load center was down," meaning that the power would

not stay on to distribute the power to the mining machinery (Tr. 149,
155). The electrical power had been shut off to permit work on t·he
mine load center (Tr. 149).
·
It appears that the inspector may have been mistaken about the
question of energized equipment, 3/ however, this point is not
significant for two reasons. First it would appear that the equipment would become energized just as soon as the power center was
repaired. As a matter of fact it was as soon as the order was
terminated at 1 p.m. (Tr. 152). Therefore, the potential power
source was always possible during that shift. However, th~ second
reason why the issue is not significant is that the energized cable,
the potential source of ignition identified by the inspector, was
50 feet from the area cited in the order (Tr. 104, 106, 123).
Electrically energized equipment was not operating in No. 27 room
(Tr. 124). Due to the remoteness of the potential ignition source
from the inadequately rock dusted area, I conclude that the violation
was of slight gravity.
(c)

Negligence

The inadequate rock dusting was readily ob~ervable by visual
observation. ·The floor was "dark" and the ribs were "real dark, 11
with very little rock dust visible on the floor or ribs (Tr. 81-82).
The preshift examination dates indicated that the face area of No. 27
room had been examined at least 10 times prior to the date of the
order (Tr. 96-97, 127, 131). Some of those dates were September 18,
1977, September 20, 1977, September 21, 1977, September 22, 1977,
September 23, 1977, September 26, 1977, September 27, 1977, October 2,
1977, and October 3, 1977 (Tr. 127). The order was issued on
.
October 3, 1977. Some of the dates had initials associated with them
(Tr. 131). Some of the initials were legible (Tr. 131). All of these
initials were inby the last open crosscut (Tr. 132).
The fact that the violation was readily observable, coupled with
the presence of a preshift examiner in the area on the date of the
order, indicates that the Respondent should have known of the inadequate rock dusting.
I therefore conclude that the Respondent was guilty of ordinary
negligence.
~

One fact-Or which lends support to the statement that the power
center was shut down is the circumstance under which the rock dust
was hauled in to the site of the violation by hand· instead of shuttle
car because of the lack of power (Tr. 155). This added almost an
hour to the time of abatement (Tr. 151) and required considerable
extra work by the miners which could have been expended elsewhere.

645

(d)

Good Faith

It took over 1 hour to abate the violation, even though the
rock dust was kept approximately 150-200 feet away (Tr. 150-51,
155-156).
The Respondent's witnesses sought to explain why the abatement
process required such an inordinate amount of time. According to the
Respondent, the rock dust was stored at the feeder location, 150 to
200 feet away from No. 27 room (Tr. 155). The.feeder is the place
where the shuttle cars dump the coal into the belt (Tr. 155).
Normally, rock dust is transported to a needed area by shuttle car
(Tr. 155). According to the Respondent, the shuttle cars could not
be employed to transport the rock.dust because the electrical power
was off (Tr. 155). This necessitated hand carrying 10 or 20
50~pound bags of rock dust through an area 4 feet high (Tr. 151,
157).
Accordingly, it is found that the Respondent demonstrated zood
faith in securing rapid abatement.
(3)

Withdrawal Order No. 7-0035 (1 JAB), October 6, 1977, 30 CFR 75.400
(a)

Occurrence of Violation

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65
Mine at approximately 7:25 a.m. on October 6 1977, to conduct a·
regular inspection (Tr. 163, 164). Mr. Joseph Arduino, the mine
foreman, was the inspector escort (Tr. 163). Upon entering the
6 Right Mains section, they inspected the face areas and traveled
outby to the return air course approximately 200 to 300 feet outby
the loading point of 6 Right Mains section (Tr. 164). The inspector
observed accumulations of loose coal and coal dust in No. 1 and No. 2
rooms off No. 1 entry of 6 Right Mains at station No. 23+70 (Tr. 164).
He also observed accumulations of loose coal and coal dust in the
No. 1 and No. 2 entries in the 3 Left section off of 6 Right Mains
(Tr. 164).
The inspector measured these accumulations (Tr. 165). The accumulations in the No. 1 room measured ap.proximately 1 to 24 inches in
depth, 3 to 10 feet in width, and 20 feet in length (Tr. 164, Exh.
M-16). The accumulations in the No. 2 room measured approximately
1 to 24 inches in depth, 4 feet in width, and 17 feet in length (Tr.
164-165, Exh. M-16). The accumulations in the No. 1 entry measured
approximately 1 to 42 inches in depth, approximately 5 to 7 feet in
width, and 19 feet in length (Tr. 165, Exh. M-16). The accumulations
in the No. 2 entry measured approximately 1 to 42 inches in depth,
9 to 10 feet in width and 20 feet in length (Tr. 165, Exh. M-16).
Inspector Bates then issued the subject order (Exh. M-16).

646

The inspector testified that the accumulations were not mixed
with a visually observable amount of rock dust (Tr. 165). He did
not take any samples 4/ (Tr. 166). · The. inspector testified that the
area cited was in the-return air course of the 6 Right section, which
is connected with one of the designated escapeways (Tr. 166, 170-171,
Exh. M-18). Mining in the area had ceased for five working days
(Tr. 169, Exh. M-16). There was no activity in the area (Tr. i66).
The accumulations were not located near any ele.ctrical equipment
(Tr. 166). The inspector testified that he· questioned the mine
foreman to determine how long the accumulations had been stored in
the subject areas (Tr. 166). The mine foreman estimated 3 to 5 days
(Tr. 166). The inspector believed that the accumulations had been
stored there for "at least five days" (Tr. 166). The mine foreman
·told the inspector that the accumulations had been put in the subject
areas during the weekend (Tr. 167).
The subject order alleged a violation of 30 CFR 75.400. 30 CFR
"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."
75 .400 states:

"Active workings" means any place in a coal mine where miners
are normally required to work or travel. 30 CFR 75.2(g)(4).
It is found that the four areas involved were "active workings"
(Tr. 166, 171).
The elements of proof required to establish a prima facie case
for a 30 CFR 75.400 violation are: (1) that an accumulation of combustible material existed in the active workings, or on electrical
equipment in active workings, of a coal mine; (2) that the coal mine
operator was aware, or, by the exercise of due diligence and concern
for the safety of the miners, should have been aware of the existence
of such accumulation; and (3) that the operator failed to clean up
such accumulation, or failed to undertake to clean it up, within a
reasonable time after discovery, or, within a reasonable time after
discovery should have been made. Old Ben Coal Company, 8 IBMA 98,
114-115, 84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). Proof
of the mere presence or existence of an accumulation of combustible
materials in active workings of the mine is not, by itself, sufficient
to establish a violation. Old Ben Coal Company, 8 IBMA 98, 112,
84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). Proof of negligence on the part of the operator is not one of the elements of proof
4/ See, Coal Processing Corpo-ration 2 IBMA 336, 345, 80 I.D. 748,
l973-1974 CCH-OSHD par. 16,978 (1973) (a violation of 30 CFR 75.400
may be based upon visual observation without nee.d of measurements or
samples).

647

of a violation of 30 CFR 75.400. The operator's negligence becomes
involved only in determining, when necessary, the constructive
knowledge of the operator as to the accumulation's existence. Old
Ben Coal Company, 8 IBMA 196, 197-98, 1977-1978 CCH-OSHD par. 22,328
(1977).
Respondent contends that the issue presented is "whether the
operator failed to clean up the accumulation, or failed to undertake
to clean it up within a reasonable time after discovery" (Respondent's Post-Trial Brief, pp. 14-15). He does not contend that MSHA
has failed to establish the first two elements of its prima facie
case with respect to the subject violation. Therefore, the question
which must be resolved before a violation of 30 CFR 75.400 can be
found to have occurred is whether the Respondent failed to undertake
clean up procedures within a reasonable time after discovering the
accumulations.
Two Board decisions establish the standards by which "reasonable
time" is measured. In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459,
459, 1977-1978 CCH-OSHD par. 22,088 (1977), the Board stated that:
[W]hat constitutes a "reasonable time" must be determined
on a case-by-case evaluation of the urgency in terms of
likelihood of the accumulation to contribute to a mine
fire or to propagate an explosion. This evaluation may
well depend upon such factors as the mass, extent combustibility, and volatility of the accumulation as well
as its proximity to an ignition source.
8 IBMA at 115.
In promulgating this standard, the Board observed that:
The longer the accumulation remains without cleanup,
the greater the threat of a mine fire or explosion.
Likewise, the greater the mass .and extent of the accumulation, the greater the chance it may contribute to a
disaster because of the increased surface area of combustible material exposed to possible ignition sources.
8 IBMA at 110.
Having stated the standard of "reasonableness," the Board set
forth some general guidelines for determining whether the operator
was in compliance. The key phrase is "maintenance of a regular
cleanup program." The Board stated that:
With respect to the small, but inevitable aggregations of combustible materials that accompany the ordinary, routine, or normal mining operation, it is our view

648

that the. maintenance of a regular cleanup program, which
would i~corporate from one cleanup after two or three
production shifts to several cleanups per production
shift, depending on the volume of production involved,
might well satisfy the requirements of the standard.
8 IBMA at 111.
The Board gave a more elaborate statement of the cleanup duties
imposed on operators by the Act in Old Ben Coal Company, 8 IBMA 196,
198, 1977-1978 CCH-OSHD par. 22,328 (1977) (on MSHA' s motion for
reconsideration of the Board's decision in Old Ben Coal C~mpany,
8 IBMA 98), stating:
A small accumulation is most probably suitable for
elimination in the course of the operator's regular
cleanup program. Proof of the absence of such a program,
together with the presence of any accumulation might well
alone support a citation for the violation of [30 CFR
75.400]. If the accumulation is of such size or combustibility as to present the possibility of a serious safety
hazard, then,•of course, the operator is required to take
more urgent steps, other than the regular cleanup, in
eliminating the hazard. (Emphasis added).
8 IBMA at 198.
The question presented is whether Leechburg's actions complied
with the Board's criteria.
Inspector Bates testified that the accumulations involved were
outby the loading point (Tr. 173, 178-81). However, Respondent's
witnesses, Mr. George Rittenberger, Mr. Joseph Arduino, and
Mr. Harold Dunmire, gave testimony indicating that the accumulations
were inby the loading point, and thus within the ambit of the Respondent's cleanup program (Tr. 188-9, 195, 226-7, 240-3). ·This cleanup
program is contained in the Respondent's ventilation plan (Exh. OX-4,
at p. 5(a)), which states:
Fine and loose coal is loaded by the continuous
miner after each cut of coal is mined. The continuous
miner is trammed along each rib to the face to load coal
into shuttle car. Fine and loose coal that cannot be
cleaned up by the continuous miner is shoveled or pushed
to the face or toward the center of the working place
after roof supports are provided.' This coal is then
loaded during the next mining cycle in the working place.
Respondent defines a "mining cycle!' as the .extraction of the
coal, the installation of temporary and permanent supports, clean up

649

through the number of faces being developed, and the installation of
crosscuts to establish the return air (Tr. 237). A "mining cycle"
on one side of a section can consist of nine face areas wherever butt
sections are being turned off main entries (Tr~ 242-43).
Mr. Rittenberger testified that, at the time the subject order
was written, mining was being conducted in entries 4, 5, and 6 of
6 Right Mains section (Tr. 198). Mining would have continued in
those entries until the necessary crosscuts had been developed (Tr.
198) before moving back to the entries on the other side of the
section. The development of each of these three entries required the
operator to recycle through four "lifts of coal" in order to develop
the crosscuts needed to establish the air for the intake (Tr. 228,
229). A "lift of coal" was defined by the Respondent as the extraction of coal from an entry for a distance of approximately 20 feet.
In doing thus, the miner makes two passes at the coal, i_.~., one on
each side of the entry (Tr .. 242).
After the establishment of the crosscuts, the feeder and the
power center would have been moved up to advance the No. 3 and No. 4
entries of 3 Butt Le~t. After the advancement of the No. 3 and
No. 4 entries of 3 Butt Left, .the accumulations. would have been
removed from rock rooms No. 1 and No. 2, and the No. 1 and No. 2
entries of 3 Butt would have been advanced because the area would
have been within reach of the cables (Tr. 198).
Mr. George Rittenberger illustrated the operation of the
cleanup program in areas where entries are being developed (Tr. 202203). After the completed advancement of the first three entries
on a main (Nos. 1, 2, and 3) and the installation of crosscuts~ the
miner is moved to advance the remaining entries (Nos. 4, 5, and 6).
While the miner is operating in Nos. 4, 5, and 6 entries, permanent
roof supports are installed in the last recycled portions of Nos. 1,
2, arid 3 entries (Tr. 202). The coal dust is then shoveled to the
center of the entires (Tr. 202) and either lays in the last 20 or
30 feet of the center of the entry, or is pushed to the face by the
scoop (Tr. 203). The accumulations are then removed by the miner
during the next cycle of those entries (Tr. 202), which, according
to Mr. Rittenberger, occurs not more than a week later (Tr. 201).
However, he went on to state that it could, in a case such as this,
be a maximum of a couple of weeks (Tr. 201).
Although the scoop can remove the accumulations instead of
piling them at the face, the Respondent's normal cleanup procedure
does not provide for removal in such a fashion (Tr. 203, 204). The
Respondent c·ontends that lo'gistical considerations bar removal of
accumulations with the scoop (Tr. 203-04), problems which would "slow
down our coal production" (Tr. 204).
The turning off of butt sections from main entries adds a third
part to the mining cycle as set up by the operator, extending the

650

amount of time required to complete one cycle·(Tr. 206). The company
president pointed out that you could have nine working faces on that
side of the section (Tr. 243). 'This, of course, is in addition to
faces in entries 4, 5, and 6 on the other side of the section.
A question then arises as to whether the cleanup program as contemplated in the ventilation plan was followed by the Respondent in
the present case. The accumulations cited in the subject order were
located in en~ries 1 and 2 of 3 Butt Left section off 6 Right Mains,
and in the No. 1 and No. 2 rock rooms off No. 1 entry of 6 Right Mains
at station 23+70. These locations are identified on Exhibits OX-3
and OX-5.
The pertinent language in the accumulations cleanup program
(Exh. OX-4 at p. 5(a)), states that the fine and loose coal incapable
of being cleaned up by the continuous miner is pushed to the face and
"loaded during the next mining cycle in the working place." The
program does not contemplate or authorize the prolonged storage of
accumulations. It apparently refers to the "small~ but inevitable
aggregations of combustible materials that accompany the ordinary,
routine, or normal mining operation." Old Ben Coal Company, 8 TUMA
98, 111, 84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). And
further, it must necessarily contemplate a reasonable lapse of time
for the return of the cleanup equipment to the area of accumulation.
It is apparent from all evidence presented that the time lapse
between the date of development of the accumulat"ion and the time it
was expected to be removed was unreasonable.
There are actually two different premises for this conclusion.
First, it appears that the mining cycle had actually been completed
in all four accumulation areas and therefore should have been fully
cleaned up when the last mining had been completed during the prior
weekend or shortly thereafter. Second, even if mining had not been
finished in such areas the lapse of time involved here caused by the
unusually large number of faces being developed in two separate
groups, would have been unreasonable.
As relates to the first premise a review of the evidence reveals
that the combustible accumulations would not have been removed in the
course of the next mining cycle because mining for all practical
purposes had been terminated in the subject areas. The rock rooms
had been advanced to the desired depth "{Tr. 252, 258), a conclusion
which is confirmed by two of the Respondent's exhibits. Exhibit OX-3
represents the development of the mine in the vicinity of the intersection of 6 Right Mains and 3 Butt Left on October 6, 1977 (Tr. 187),
the date of the subject order.. Exhibit OX-5 represents the development· of the mine as of June 1978 (Tr. 191), approximately 8 months
after the issuance of the subject orde~. The areas cited are circled

651

in green on Exhib.it OX-5 (Tr. 172). A comparison of the two exhibits
reveals that the two rock rooms were no farther advanced in June 1978,
than they were on October 6, 1977.
The same conclusion applies to the development of the No. 1 and
No. 2 entries of 3 Butt Left section. A comparison of the two
exhibits reveals that they had not been advanced between October 6,
1977, and June 1978. Therefore, the mining cycle had terminated in
the subject areas on the date of the order.
The combustible accumulations cleanup program in effect at the
mine on the date of the order contemplated the removal of the
accumulations during the next mining cycle (Tr. 202-04, 206). The
termination of mining activity in an area takes that area out of the
mining cycle, and thus outside the regular cleanup program's reach.
Since the mining cycle had terminated in the subject areas, the
accumulations cited in the order would not have been removed in the
course of regular mining activity (Tr. 222). The loose coal and coal
dust should have been removed upon the termination of the mining
cycle in the subject areas, a feat which could have been accomplished
with the scoop (Tr. 255). If the scoop was inoperable, as Respondent
contends (Tr. 217), removal could have been accomplished with the
continuous miner.
As relates to the second premise, even if mining had not been
finished in such four areas, the lapse of time involved here was
unreasonable. Testimony of Mr. Rittenberger, the mine superintendent,
Mr. Arduino, the mine foreman, and Mr. Dunmire, the company president,
particularly at pages 198, 201, 223, 237-240, 243-246, and 257-258 of
the transcript, shows the unusual amount of time that would lapse in
this case.
Part of the reason for the long lapse of time was the manner in
which a group of three entries were advanced for some distance before
moving back across.the section to another group of entries which also
involved many different faces.
One of the statements which showed the long period of time
involved was that of the mine superintendent at page 198 of the
transcript as follows:

Q. So, it could have been a later mining cycle that
it was actually cleaned up?
A. It would have been completed in the mining cycle
of that area, yes, which would have been within a couple
of weeks, not a longer period than that.
Q. But, you are saying that it was cleaned up within
the next mining cycle?

652

A.

It was cleaned up due to the order out of cycle.

Q.

Could you explain that further for us?

A. When we were doing our mining, we were working
in 4, 5 and 6. We would have continued those entries up
until we made the necessary crosscuts and advanced them
to the limit that we could reach with our cables.
At that point, we would have moved the feeder and
the power center up, advanced No. 3 and No. 4 entry of
3 butt left, at which point in time we would have gone
over to clean up rock rooms 1 and 2, and advance No. 1
entry and No. 2 entry further. in for another crosscut,
oecause then we could reach it with the cable.
At the point in time we were setting here, we could
not reach any further. We could not advance those faces
any further.
The fact that the circumstances of this case were not normal was
evident in the testimony of the company president as follows: "[B]ut
what you are looking at here is not the norm for Leechburg Mining.
It is a series of events that took place. It was unfortunate, but
they led into this" (Tr. 257).
The evidence thus establishes that the Respondent permitted
large volumes of combustible material (Tr. 164-65, Exh. M-16) to
accumulate in the active workings of the mine for approximately
5 days (Tr. 166). Even a review of the testimony in a light most
favorable to the Respondent reveals that the combustible material
might not have been removed for "a couple of weeks" (Tr. 198).
I therefore conclude that the Respondent did not undertake to
clean up the accumulation within a reasonable time after discovery,
and that MSHA has established a violation of 30 CFR 75.400 by a
preponderance of the evidence.
(b)

Gravity

Little, if any, rock dust could be visibly detected in the
accumulations (Tr. 165). Part of the depth of coal was dry to damp,
the remaining depth of coal was dry (Tr. 168). Inspector Bates
testified that he did not observe any mining machinery in the area
(Tr. 175).
Inspector Bates testified that accumulations of coal dust in a
coal mine pose a hazard because its presence can intensify an explosion (Tr. 168). He classified the occurrence of an event as

653

"probable," and contemplated that the resulting injury would be "disabling" (Tr. ·170, Exh. M-18). He t.1as unable to determine whether
the workers were exposed to the hazard (Tr. 170).
The area was connected to a designated escapeway (Tr. 171). The
accumulations were not in close proximity to any electrical equipment
('.fr. 166).
Therefore, I find the violation to be of moderate gravity.
(c)

Negligence

The mine foreman told Inspector Bates that the accumulations had
been present for about 3 to 5 days (Tr. 166). The inspector estimated that the accumulations had been present for at. least 5 days
(Tr. 166). The operator should have known of the presence of the
accumulations because the mine foreman was aware of their presence
(Tr. 167).
Therefore, I find the Respondent demonstrated gross negligence.
(d)

Good Faith

Mr. Arduino testified that the accumulations were removed on
October 6, 1977, the date of the order. Abatement was achieved in
the No. 1 and No 2 entries of 3 Left, using the miner and the shuttle
car. It was accomplished in the No. 1 and No. 2 rock rooms by hand
shoveling the accumulations onto a shuttle car. The continuous miner
was not brought into the No. 1 and No. 2 rock rooms because the
number of curves which the miner would have had to negotiate would
have destroyed the miner cable (Tr. 219). Mr. Arduino testified that
the scoop was not used in the abatement process because it was not
functioning (Tr. 217, 233).
Inspector Bates was not notified of the abatement until
October 11, 1977, 5 days after the issuance of the subject order
(Tr. 219-220, Exh. M-17). Mr. Arduino testified that he was unable
to explain the time lag between the abatement of the order and the
notification of Inspector Bates (Tr. 219).
I find that the Respondent demonstrated good faith in achieving
rapid abatement of the violation.
(4)

Order No. 7-0036 (1 JAB), October 11, 1977, 30 CFR 75.400
(a)

Occurrence of Violation

MSHA inspector Jesse Bates conduct.ed a regular inspection at
Leechburg's Foster No. 65 Mine on October 11, 1977 (Tr.' 260, 261).
He arrived at approximately 7:30 a.m. (Tr. 260). Mr. Joseph Arduino,

654

the mine foreman, accompanied the inspector during the inspection'
tour (Tr. 260). At approximately 12:15 p.m.; he observed the continuou~ miner withdraw from the face area prior to the work crew's
dinner break (Tr. 261). He observed accumulations of loose coal and
oil soaked coal dust on the top and sides of the machine (Tr. 261,
262, 271, Exh. M-19). The area covered encompassed the conveyor
reverse control switch and the left side of the electric motor (Tr.
261). The inspector made measurements (Tr. 264-5) showing that the
accumulations of oil and coal dust covered a 54-square foot area on
the machine's top, and 32 square feet on the sides (Exh. M-19, Tr.
264). It was impractical to measure the depth of the accumulation
on top of the machine due to th~ low mining height (Tr. 261-62, 271).
-pie inspector estimated that the accumulations had existed for
at least two shifts, based on the abnormal amount of accumulations
on the machine (Tr. 262-63, 273). Mr. Arduino disagreed, stating
that the accumulations were not an abnormal amount (Tr. 283-84).
Inspector Bates believed the normal cleaning procedure for the
machine required the operator to clean it at the beginning of each
shift (Tr. 276-77). Mr. George E. Rittenberger mentioned the existence of a continuous mining machine cleanup program (Tr. 292, 293),
although the Respondent neither produced nor mentioned a writing
embodying the plan. According to Mr. Rittenberger, the mechanics on
the night shift are largely responsible for cleaning the equipment
(Tr. 293). Section foremen are charged with supervising the removal
of excessive accumulations (Tr. 293-94).

Mr. Arduino testified that the miner is normally cleaned once
daily, on the 12 midnight to 8 a.m. shift (Tr. 284). It would have
been clean at the beginning of the 8 a.m. shift' if normal procedures
had been followed (Tr. 285).
However, according to Mr. Arduino and Mr. Rittenberger, the
continuous miner cited in the subject order had not been in operation
prior to the order's issuance. They testified that the machine had
been undergoing repairs (Tr. 282, 283, 285, 294-95, 296). According
to Mr. Arduino, the midnight to 8 a.m. shift had not cleaned the
machine because they were subjecting it to repair work (Tr. 295).
Mr. Rittenberger testified that the maintenance crew had not washed
the machine because their repair work required opening a permissible
electrical box (Tr. 296). He further testified that his records
revealed the machine was not returned to service until after 1 p.m.
on the date of the order. However, the Respondent did not introduce
those records into evidence to corroborate Mr. Rittenberger's claim.
The mechanics who allegedly performed the repair work were not called
as witnesses.
Inspector Bates' testimony reveals that the machine was in operation between the time he arrived on the section at 9 a.m. and the

655

time he issued the order at 12:15 p.m. (Tr. 261, 266, 267). He
specifically testified that he saw. the machine withdrawing from the
face area at approximately 12:15 p.m. (Tr. 261). He specifically
asked the operator when the machine had been washed, and got no
response (Tr. 269, 270). He testified that no one was performing
maintenance on it (Tr. 266, 268). No one told him that maintenance
work had been performed on the reverse control switch during the
morning (Tr. 270).
Having been afforded the opportunity at the hearing to assess
the credibility of the witnesses, I conclude that Inspector Bates'
testimony accurately reflects the events of October 11, 1977. I
therefore find that the continuous mining machine cited in tbe order
had been in operation between 9 a.m. and 12:15 p.m. on October 11,
1977, and that excessive accumulations of oil and coal dust had been
permitted to accumulate on the machine.
The accumulations had been present on the machine for a long
period of time while it was in operation. Mr. Arduino testified that
his men had to scrape some of the oil from the machine (Tr. 283).
Inspector Bates' testimony reveals that scraping is required only when
the accumulations have been permitted to remain on the machine for
such a prolonged period of time that the heat from the equipment has
caused it to harden (Tr. 277-78).
MSHA's prima facie case consists of three elements. The elements
for establishing a violation of 30 CFR 75.400 are: (1) the existence
of an accumulation on electrical equipment in the active workings of
a mine; (2) that the operator knew, or through the exercise of due
diligence should have known, of their existence; and, (3) that the
operator failed to clean up the accumulation within a reasonable time
after discovery. Old Ben Coal Company, 8 IBMA 98, 114-15, 84 I.D.
459, 1977-78 CCH-OSHD par. 22,088 (1977).
The testimony of Inspector Bates and Exhibits M-19 and M-21
establish, by a preponderance of the evidence, the existence of accumulations on the continuo~s miner, a piece of electrical equipment in
the active workings of the Foster No. 65 Mine. Loose coal and oil
soaked coal dust had been permitted to accumulate on the machine (Tr.
261-6"2, 271, Exhs. M-19, M-21), covering 54 square feet on the top of
the machine and 32 square feet on the sides (Tr. 264, Exh. M-19).
Accumulations were present on both the conveyor reverse control switch
and the left side of the electric motor (Tr. 261).
The Respondent should have known of the accumulations existence.
Section foremen are charged with the duty of assuring the removal of
excessive accumulations from electrical equipment (Tr. 293-94). The
section foreman was on the section between 9 a.m. and 12:15 p.m. on
October 11, 1977 (Tr. 262). In the exercise of his company imposed
duty to inspect electrical equipment for accumulations, a duty of

656

which he should have been aware (Tr. 294), he should have known of
the condition. The men had to scrape some of the oil and loose coal
from the machine (Tr. 283), indicating that the accumulations haQ
been present long enough for the heat from the machine to cause
hardening (Tr. 277-78). Additionally, Mr. Arduino testified that the
machine had probably last been cleaned on the 4-to-12 shift the previous day (Tr. 285-86). Therefore, the Respondent, through the
exercise of due diligence, should have known of the existence of the
accumulations on the miner.
The Respondent failed to remove the accumulations from the miner
within a reasonable time after he should have known of the·Lr existence. 11 Reasonable time" is determined on a case-by-case evaluation
of urgency in terms of the likelihood of the accumulation to contribute to a mine fire or an explosion. Mass, extent of combustibility
and proximity to an ignition source are factors used to assess the
11
reasonable time" factor. Old Ben Coal Company, 8 IBMA 98, 115,
84 I.D. 459, 1977-78 CCH-OSHD par. 22,088 (1977). Accumulations were
present around the conveyor reverse control switch and the electric
motor on the left side of the machine (Tr. 261), potential sources of
ignition ('.rr. 263). A measurable ~.epth of accumulations was present
on the miner's top (Tr. 261-62). It covered 54 square feet on the
top, and 32 square feet on the sides (Tr. 264, ~xh. M-19).
The presence of these large accumulations, in close proximity
to potential sources of ignition, on a machine operating in the face
area (Tr. 261), coupled with the fact that the machine had not been
cleaned for one and a half shifts (Tr. 262, 285-86), indicates a
failure to remove the accumulations within a reasonable time after
the operator should have known of their presence.
I therefore conclude that a violation of 30 CFR 75.400 was
established by a preponderance of the evidence.
(b)

Gravity

The inspector testified that the trailing cables and the motor
could short circuit, causing the machine to catch fire (Tr. 263).
Running over the cable can also produce a short circuit, resulting
in a mine fire (Tr. 263). Six or more workers were exposed to the
hazard, one of whom was the miner operator (Tr. 263-64, Exh. M-21).
The miner was equipped with operable fire suppression sprays (Tr.
271).
I

find the violation to be a serious one.

(c)

Negligence

The Respondent demonstrated ordinary negligence in failing to
comply with its unwritten program for cleaning accumulations from the

657

continuous miner. The machine was cleaned at least once daily under
the plan, usually on the 12 midnight-to-8 a .m. shift (Tr .. 284, 293).
This responsibility was shared by the section foremen (Tr. 293-94).
The machine in question had been operating since at least 9 a.m.
on October 11, 1977. It had not been cleaned by the midnight-to8 a.m. shift, and had not been cleaned on the 8 a.m. shift as attested
to by the abnormal amount of loose coal and oil-soaked coal dust on it
at the time the order was written (Tr. 262, 285, 286). The extent of
the accumulations exceeded the ordinary amount which would have been
present had the plan been followed (Tr. 262).
I conclude that Respondent demonstrated ordinary negligence.
(d)

Good Faith

The operator corrected the condition while the inspector was on
the section (Tr. 272). Abatement was accomplished within about
30 minutes after the order's issuance (Tr. 273, Exhs. M-19, M-20).
I find that Respondent demonstrated good faith in securing rapid
abatement of the violation.
(5)

Order No. 7-0038 (1 JAB), October 12, 1977, 30 CFR 75.202
(a)

Occurrence of Violation

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65
Mine on October 12, 1977, between 7 a.m. and 7:30 a.m. to conduct a
regular inspection (Tr. 299). He was accompanied on the inspection
by Mr. Joel Dunmire, Leechburg's safety director (Tr. 299). He
inspected the northeast mains track switch, the track haulage road
and the roof above the track haulage road (Tr. 299). He observed
loose, falling roof material between the previously installed roof
bolts over the track haulage road from the northeast mains track
switch to a point 200 feet inby the supply base (Tr. 300). In other
words, rock had fallen from the roof onto the track haulage road
(Tr. 300). The condition was present in a section of the track
haulage road measuring a distance of approximately 3,500 feet (Tr.
300). The inspector, afber administering a sounding test, noted that
"the roof over the track haulage road in various locations needed to
be scaled down from the northeast mains track switch to 200 feet inby
the supply base at 5 Right, a total distance of approximately
3,500 feet" (Tr. 301, 305, 317-18, Exh. M-22).
The condition observed by the inspector was described as
spa1ling," which he defined as small "particles of roofing material
becoming loose between the installed supports and falling loose or
falling to the mine floor on the track haulage road" (Tr. 300, 319).
Spalling is produced by thermal shock, or weathering, and occurs
11

658

when mo{sture laden warm air comes in contact with the cooler surfaces
within the mine (Tr. 307, 308, 323). The Foster No. 65 Mine frequently
experienced this problem during the hot summer months (Tr. 323).
Mr. George Rittenberger- testified that the roof of the track
haulage is comprised of dark shale over the Lower Kittanning coal
seam, a material that often spalls during the hot summer months
(Tr. 323). He testified that when spalling is observed, the affected
area is scaled (Tr. 324), and that the day shift constantly examines
the area for loose rock (Tr. 334). Experienced coal miners customarily check the roof, but scaling was noted only occasionally in
reports filed prior to the order's issuance (Tr. 336-37, Exh. OX-6).
Although he expressed the opinion that visual observation from an
open track jeep was sufficient to determine the roof's status (Tr.
343) , he pointed out a more regular inspection and removal procedure
systematically conducted in some areas. He testified that more
detailed inspections were carried out weekly or daily by the general
foremen in areas of the track haulage where the danger of injury was
greatest (Tr. 346-47). According to his testimony, the area of
regular inspection extended from the mantrip unloading point to the
supply station, a distance of approximately 600 feet encompassing
none of the 3,500 feet cited by the inspector (Tr. 346-49). According
to his testimony, there was no regular inspection procedure for the
3,500 feet cited in the order (Tr. 347, 348-49).
The inefficiency of scaling as a tool in spalling control was
highlighted by Mr. Rittenberger's testimony. He stated that the
problem would persist until full implemention of a new program could
be completed (Tr. 345-46).

Mr. Joel Dunmire, Respondent's safety director, attempted to
explain the absence of recorded references to spalling. He testified
that since spalling is a normal condition, the fire boss would not
have noted it in his book (Tr. 353-54). The fire boss usually makes
notations in his book of roof conditions adversely affecting safety
(Tr. 353) •
Assistant mine foreman Walter Vakulick, testified that this crew
scaled the track haulage on the 600-foot section running between the
supply base and the end of the track (Tr. 357). This was done almost
daily (Tr. 355). But the 600-foot stketch in question did not
encompass the entire 3,500 feet cited in the subject order (Tr. 357,
346-49). The 3,500-foot section ran from the northeast mains track
switch to a point 200 feet inby the supply base.
The testimony of Mr. Rittenberger and Mr. Vakulick reveals an
ambiguity regarding how much, if any, of the 600-foot section, which
was subject to regular inspection, was encompassed by the 3,500 feet
cited in the order.

659

The history of spalling, and the attempts to alleviate it, at
the Foster No. 65_Mine was recounted in the testimony of Mr. Harold
Dunmire. Mr. Dunmire had served as mine superintendent of the Foster
No. 65 Mine between June 5, 1975, and June 1, 1977. He became president
of Leechburg on June 1, 1977. Mr. Dunmire testified that spalling was
a problem at the mine when he arrived in 1975 (Tr. 362). His first
attempts to control the condition involved removal·of the loose
material, an expensive procedure that was ultimately discarded in
favor of resupporting the roof (Tr. 362). These methods also proved
inefficient (Tr. 362-63).
In 1976, the Respondent learned of a guniting procedure.
Guniting involves the high-pressure spray application of Fiber-crete,
a mixture of cement and 1-inch steel fibers of minute size, to the
spalling surfaces (Tr. 365). The Fiber-crete forms a seal insulating
the roof from moist air (Tr. 365). According to Mr. Dunmire, the
guniting procedure was not implemented by the Respondena in 1976
because 11 we were in no shape to enter into a program like that" (Tr.
363). The Respondent reconsidered purchasing guniting equipment in
the summer of 1977, and ultimately purchased a machine on October 20,
1977 (Tr. 363, Exh. OX-7). Respondent uses the machine only on the
track haulage (Tr. 365), and it has proved successful in combatting
spalling (Tr. 367-68).
The question presented is whether the above facts establish a
violation of 30 CFR 75.202, which reads in pertinent part: "Loose
roof and overhanging or loose faces and ribs shall be taken down or
supported. 11
The Respondent argues that this language is similar to the
language of 30 CFR 75.400 which requires that the condition has
existed and that the operator has failed to correct it in a reasonable time before a violation can be found. Thus, the Respondent
argues, the crux of a violation under 30 CFR 75.202 is the failure
to promptly take down or support, or undertake to take down or
support, loose roof which is already in existence. The Respondent
casts the critical issue a~ whether remedial action was taken
promptly when the operator knew or should have known of the violation
(Respondent's Post-Trial Brief, pp. 25-26).
Even assuming the accuracy of the Respondent's theory, I find
the evidence sufficient to establish a violation of 30 CFR 75.202.
The evidence establishes (1) the existence of loose roof material in
various locations in the 3,500 feet of track haulage, (2) reason to
know of the ·condition's existence, and (3) failure to take prompt and
appropriate remedial measures within a reasonable time after the
Respondent should have known of the existence of loose roof material.
The Respondent does not dispute the existence of loose roof
material in various locations along the 3,500 feet of track haulage

660

cited in the subject order. The Respondent contends th.at remedial
action was taken promptly after he.knew or should have known of the
conditions existence. The evidence does not support such contention.
The testimony establishes the presence of loose roof material in
the track haulage area for a considerable time period prior to the
order's issuance (Tr. 315). A preshift examination of the area had
been made (Tr. _303) .
The Foster No. 65 Mine had a history of spalling (Tr. 323, 362),
with the safety director classifying it as 11 normal 11 (Tr. 353-54). Yet,
in spite of a known history of spalling conditions at the mine, none
. of the employees charged with making inspections were required to
note the condition in their reports. The fire boss was charged with
the duty of conducting daily roof inspections (Tr. 353-54), but he
was not required to note spalling in his record book (Tr. 353-54).
In general, mine employees were not required to note spalling in.
their daily reports, although they occasionally noted the condition
(Tr. 334, 336-37, Ex~. OX-6).
The Respondent was aware of possible injuries resulting from
falling roof material, but formulated and implemented a specific
loose roof material inspection and removal procedure for only that
portion of the track haulage presenting, in the Respondent's judgment,
the greatest possibility of injury (Tr. 346-47, 348-49). A 600-foot
stretch running from the supply base to the mantrip unloading point
was regularly inspected (Tr. 346-49, 357). Conditions in the 600-foot
section were so bad that scaling was required almost daily (Tr. 355).
Yet in spite of this knowledge of the problem's extent, no reguiar
spalling inspection and removal procedure was provided for the
remaining portion of the track area cited in the order, except visual
observations from open equipment traveling the track, even though
the area served as the means of ingress for workers riding to the
workplace in uncovered personnel carriers (Tr. 302-03).
Based on the Respondent's knowledge of both the history and
extent of spalling problems at the Foster No. 65 Mine, and the
Respondent's knowledge of the possibility of resulting injury from
falling roof material, it cannot be said that the limited inspection
and removal procedures employed at the mine were adequate.
The evidence also establishes the use of spalling control
measures whose inadequacy was known to the Respondent (Tr. 345-46,
362-63) for at least 28 months prior to the order's issuance (Tr.
362). The inadequacy of scaling was known in 1975 (Tr. 362), yet it
was still used in 1977. The Respondent learned of a potentially more
effi~ient means of spalling control in 1976, but did not take serious
steps to procure the more ·efficient system until the sUIIllller of 1977
(Tr. 363). The equipment had not been purchased on October 12, 1977
(Exh. OX-7), the date of the subject order. Therefore, the record

661

establishes the Respondent's knowing use of an inefficient spalling
control procedures when a more efficient means was in existence.
I therefore conclude that the Respondent failed to take prompt
and effective remedial action after he should have known of the
spalling roof conditions in the 3,500 feet of track haulage.
(b)

Gravity

Inspector Bates was unable to determine, at the time of the
order's issuance, the precise number of workers exposed to the hazard
of loose, spalling rock falling between the supports in th~ 3,500 feet
of the track haulage area (Tr. 312, Exh. M-25). However, he estimated
that at least two full crews per shift passed through the area (Tr.
303). Normally, there would be eight workmen per crew, making a total
of 16 workers per shift who were exposed to the hazard (Tr. 303).
Although these workers would normally travel in covered personnel
carriers, the Respondent also used several open-type personnel
carriers (Tr. 302-03). The passengers in the open equipment would
have been exposed to loose roof material spalling between the supports
(Tr. 303).
The inspector's personal knowledge of the mining industry led
him to conclude that the condition was serious because he had known
of several people receiving eye injuries from falling roof material
in haulage areas (Tr. 304, 311). He was not referring to specific
injuries at the Foster No. 65 Mine (Tr. 311).
I conclude that the violation was serious because workers could
have received eye injuries from falling roof material while riding in
open personnel carriers. I therefore find the violation to be of
considerable gravity.
(c)

Negligence

Mr. Rittenberger testified that workers had scaled the haulage
area during the week previous to the order's issuance, but he had no
written record of it (Tr. 331). He also testified that the day shift
workers constantly scan the area for loose rock (Tr. 334), and that
the area was checked more regularly than usual in high humidity
(Tr. 335). This was done generally in open equipment traveling the
track.
Inspector Bates testified that a preshift examination of the area
had been made (Tr. 303). He expressed the opinion that the condition
had developed over a period of time based on the amount of loose roof
material that had fallen through the supports along the 3,500 feet of
haulage road (Tr. 315). The inspector saw no one scaling prior to the
order's issuance (Tr. 320).
.

662

Therefore, the Respondent demonstrated ordinary negligence in
failing to discover and correct the loose ro~f material at various
subject order.
(d)

Good Faith

MSHA 1 s exhibits establish that 1,300 feet of the cited track
haulage area had been scaled within 24 hours of the order's issuance
(Exhs. M-22, M-23). The order was terminated at 12:45 p.m. on
October 17, 1977, after an inspection disclosed full abatement
(Tr. M-24). The testimony of Mr. Rittenberger establishes that
abatement was completed on Monday, October 17, 1977 (Tr. 339-40).
He was unable to determine the precise number of manhours required
to abate the order because much o~ the work performed between
October 12 and October 17, 1977, went for the abatement of a notice
written for clearance (Tr. 343-44). In addition to scaling, the
Respondent installed approximately 200 additional roof bolts in the
subject area (Tr. 344).
I therefore conclude that the Respondent demonstrated good faith
in rapidly abating the violation.
Additionally, since the issuance of the order, the Respondent
has purchased new spalling control equipment and is currently implementing a new spalling control plan (Exhs. OX-7, OX-8, Tr. 345-46,
364-68). A 11 Big Sam11 Spray Applicator was purchased for $1~060. 70_._
on October 20, 1977 (Exh. OX-7). The machine is used to apply Fibercrete to roof surfaces, sealing out moisture (Tr. 365). Between
November 3, 1977, and August 3, 1978, the Respondent purchased
324,500 pounds of Fiber~crete at a total cost of $16,937,26 (Tr. 366,
Exh. OX-8). The application of Fiber-crete has· proved successful in
spalling control efforts in the track haulage areas of the Foster
No. 65 Mine (Tr. 366-68).
(6)

Order No. 7-0047 (1 JAB), November 30, 1977, 30 CFR 75.200
(a)

Occurrence of Violation

MSHA inspector Jesse Bates arrived at Leechburg 1 s Foster No. 65
Mine at approximately 7:30 a.m. on November 30, 1977, to conduct a
spot health and safety inspection (Tr: 372). Mr. Joel Dunmire,
Leechburg's safety director, and Mr. George Rittenberger, the mine
superintendent, accompanied the inspector on his investigation (Tr.
372). The inspector issued the subject order, alleging a violation
of 30 CFR 75.200.
The order was issued for the alleged failure to comply with
Drawing No. 1 of the approved. roof control plan (Exh. M-3) in an
intersection in No. 4 entry, 1 Right section off 6 Right Mains in

663

that one diagonal of the intersection measured 37.5 feet and additional roof support had not been installed (Tr. 372-73, Exh. M-26,
Exh. M-30).
The inspector testified that one diagonal measured 37.5 feet and
the other measured 25.5 feet (Tr. 372-73). The intersection was in a
20-foot-wide place (Tr. 373-74). Drawing No. 1 of the approved roof
control plan requires both diagonals of an intersection in a 20-foot
wide-place to measure 32 feet or less (Exh. M-3). If either diagonal
exceeds 32 feet, the approved roof control plan requires the installation of additional support in the form of either posts or cribs
(Exh. M-3).
The Respondent offered no evidence negating the existence of a
violaton, and concedes in his post-trial brief that a violation
occurred (Respondent's Post-Trial Brief, pp. 31, 32).
I therefore find that a preponderance of the evidence establishes
the Respondent's failure to install posts or cribs to reduce the
diagonal length of a 20-foot-wide place to 32 feet in accordance with
the approved roof control plan, and that such failure constitutes a
violation of 30 CFR 75.200.
(b)

Gravity

The inspector's visual observation and sounding of the roof
revealed no defects. The roof did not sound drurilmy and there were
no visual slips in the intersection (Tr. 381). The absence of visual
slips and the sounding test indicated that the roof was satisfactory
for at least 4 feet (Tr. 388). The inspector did not observe signs
of stress on the roof or ribs, and observed no signs that the ribs
were taking any weight (Tr. 383). Although he testified that he found
no indications of possible roof fall developing (Tr. 383), he elected
to classify the violation as serious (Tr. 380). Inspector Bates views
all roof control violations as serious (Tr. 380, 384), but he admits
to varying degrees of seriousness (Tr. 384-85).
The inspector did not test the torque of the roof bolts in the
intersection because he did not deem it necessary (Tr. 386-87). The
intersection in question was slightly staggered (Tr. 385-86).
Although staggering often indicates poor mining practices (Tr. 386,
428), slight staggering can improve the roof's strength or stability
(Tr. 385-86).

Mr. Rittenberger classified the roof conditions as "good" (Tr.
430). Inspector Bates refused to classify the roof conditions as
"good" at the hearing, but he did so term it in his response to
Interrogatory No. 83 (Tr. 381).
At least seven men were working on the section (Tr. 380, Exh.
M-28).

664

The inspector testified that the 32-foot requirement in Diagram
No. 1 of the approved roof control plan represents the maximum safe
diagonal length, taking into account the stress of the overlying
strata (Tr. 376).
Mr. George Rittenberger, the mine superintendent and a m1n1ng
engineer (Tr. 185-86), testified that the intersection was as safe
as one in full compliance with the roof control plan (Tr. 420). He
testified that according to his calculations, embodied in Exhibit
OX-12, the area of the cited intersection was less than the area of
an intersection which fully complied with the roof control plan
(Tr. 420-22). According to M~. Rittenberger, the critical figure in
roof support is the area to be supported (Tr. 420). Mr. Rittenbe.rger
calculated the area of the cited intersection as 956.25 square feet
(Exh. ·ox-12, Tr. 420). He calculated that an intersection in full
compliance would cover an area of 1,024 square feet (Exh. OX-12,
Tr. 421). He testified that a comparison of the two figures revealed
no perceptible difference in the area to be supported (Tr. 421-2i).
I therefore conciude that the violation was of slight gravity.
(c)

Negligence

Inspector Bates testified that the violation could be detected
by visual observation (Tr. 383). The preshift examiner's dated
initials were observed in the face areas of each working place in the
section (Tr. 377). The inspector testified that he thought a current
date was present on the face closest to the violation (Tr. 377).
The inspector estimated that the condition cited in the order
had existed for at least one shift, and possibly longer (Tr. 377).
Mr. George Rittenberger, the mine superintendent, testified that the
violation probab]y occurred between 8 p.m., November 29, 1977, and
9:30 a.m., November 30, 1977 (Tr. 430-31). (See also, Exh. M-26).
It was not a normal mine procedure to measure-t'he diagonal distance
at the intersections encompassed by Drawing No. 1 of the approved
roof control plan (Tr. 427, Exh. M-3). Mr. Rittenberger stated that,
to his knowledge, no one had measured the dia·gonal lengths at the
intersection (Tr. 429). Temporary supports had not been placed on the
previous shift to correct the condition because no one suspected that
the diagonal length exceeded 32 feet (Tr. 429).
I find that the Respondent should have known of the violation
existing in the intersection of No. 4 entry, 1 Right section off
6 Right Mains. The Respondent demonstrated ordinary negligence.
(d)

Good Faith

The operator took immediate steps to abate the violation (Tr.
379, Exh. M-28). Three posts were installed to reduce the diagonal

665

width to j2 feet.
(Tr. 387, 429).

It iequired approximately 5 minutes to correct

I find that the Respondent demonstrated good faith in securing
a rapid abatement of the violation.
C.

History of Previous Violations

The history of violations at Respondent's Foster No. 65 Mine
during the 2-year period preceding the issuance of the subject orders
is summarized as follows (Exhs. M-1, OX-9, OX-10):
Violations
All Sections
Section 75.200
Section 75.202
Section 75.400
Section 75.403
(Note:

Year 1
10/29/75-10/30/76

Year 2
10/31/76-10/31/77

Totals

62
7
2
6
5

45
6
1
4
10

107
13
3
10
15

All figures are approximations.)

The history reviewed below relates only to those violations for
which a penalty has been paid.
One hundred seven violations of all sections were cited during
the 2-year period prior to October 31, 1977, with 62 cited in year 1.
and 45 cited in year 2. Thirteen violations of 30 CFR 75.200 were
cited during the 2-year period preceding November 13, 1977, with
seven cited in year 1 'and six cited in year 2. Three violations of
30 CFR 75.202 were cited during the 2-year period preceding October 31,
1977, with two cited in year 1 and one cited in year 2. Ten violations of 30 CFR ·75.400 were cited during the 2-year period preceding
October 31, 1977, with six cited in year 1 and four cited in year 2.
Fifteen violations of 30 CFR 75.403 were cited during the 2-year
period preceding October 31, 1977, with five violations cited in
year 1 and 10 cited in year 2.
D.

Size of Operator's Business

The Leechburg Mining Company operates only one mine, the Foster
No. 65 Mine (Tr. 440). Leechburg produced 255,758 tons of coal in
1975, 169,761 tons in 1977, and 142,140 tons in 1978 (Exh. M~2,
Stipulation No. 6).
E.

Effect of the Assessment of a Civil Penalty on the Operator's
Ability to Continue in Business

The Respondent is subject t9 a maximum aggregate penalty assessment of $60,000 for the six subject violations. The Respondent,

666

through the testimony of company president Harold Dunmire, contends
that a $60,000 penalty would jeoparize the Respondent's survival,
considering the Respondents other financial obligations (Tr. 435-36).
The Respondent anticipates difficulty in raising $60,000 within
30 days because the company's current financial posture renders
doubtful the provision of the requisite monies by a lending institution (Tr. 445-46).
In addition to the testimony of company president Harold Dunmire,
the Respondent offered a copy of the Respondent's tax return for the
year ending June 30, 1978, and financial statements for the year
ending June 30, 1978, in support of its position. The Respondent did
not call an expert witness to assist in interpreting the tax return
and the financial statements. Bearing in mind the limitations imposed
by the lack of expert testimony, the following picture of the
Respondent's financial condition was established by the evidence.
Leechburg Mining Company is owned by a small group of shareholders and is not part of a larger business entity (Tr. 437, 440).
Eighty-two percent of the company:s stock is held by the Mellon Bank
on behalf of the Hick's estate (Tr. 438). The Bank administers the
trust for the estate (Tr. 439). The beneficial interest in the trust
is held by Lewis and Harry Hicks, the heirs of the Hick's estate
(Tr. 438-39).
The company has approximately 80 employees (Tr. 432). It operates only one mine, the Foster No. 65 Mine (Tr. 440). The mine has
two sections operating (Tr. 432). The company's coal production was
lower during the year ending June 30, 1978 than during the year ending June 30, 1977, because of the United Mine Worker's strike in 1978
(Tr. 432-33). The company produces approximaely 900 to 1,000 tons of
coal per day (Tr. 441). It is sold to Penelec at a price of $26.60
per ton, F.O.B. (Tr. 433, 441). The contract with Penelec expires
on April 22, 1979. The company anticipates receiving a reduced price
per ton after April 22 because the current prevailing market rate for
coal is $22 to $25 per ton (Tr. 441).
The company has large obligations based on a settlement agreement
with the Pennsylvania Department of Environmental Resources for
reclamation of 130 acres of refuse area- (Tr. 434). This reclamation
is proceeding at the present time (Tr. 434). It costs $20,000 to
$25,000 per month, and is projected to cost $1.3 million upon completion in 1981 (Tr. 435, 441-3, Exh. OX-13). According to Mr. Dunmire,
the company lacks sufficient assets to fund this liability and must
pay for it on a day-to-day, month-to-month basis out of net operating
revenues (Tr. 434-35).
At a recent board of directors meeting, one director proposed
closing the company, primarily in consideration Qf the obligations

667

to the Pennsylvania Department of Environmental Resources (Tr. 436).
It was decided at that time to continue in business as long as
sufficient revenue could be generated (Tr. 436).
Leechburg's U.S. Corporation Income Tax Return for the year
ending June 30, 1978, shows a $257 ,236 loss for. tax purposes (Exh.
OX-15). The $257,236 loss was computed as follows:
Gross Income
Gross receipts or Gross Sales
Less: Cost of Goods Sold
Gross Profit
Interest
Gross Rents
Gross Royalties
Other Income
Tot.al Income

$3,883,699
3,534,850
348,849
55,735
5,810
5,082
4,086
419,562

Deductions
Compensation to Officers
Salaries & wages (not deducted elsewhere)
Rents
Taxes
Interest
Depreciation
Depletion
Pension, Profit Sharing, etc. plans
Other Deductions
Total Deductions
Taxable Income

79,605
9,901
690
157,349
2,785
241,857
662
73,107
110 '842
676,798
(257,236)

Tax
Refunded

25' 714

The financial statement for the year ending June 30, 1978
(Exh. OX-13), reveals the following information:
Balance Sheet
Assets

June 30, 1978

June 30, 1977

1,760,592
10,932
72,000
1,948,592
3,792,116

2,002,797
12 '777
72,000
1,762,846
3,850,420

Total current assets
Mortgage Receivable
Annuity Contract
fixed Asset-At Cost

668

Liabilities
Total Current Liabilities
Deferred Compensation
Committments and Contingencies
(note c)
Stockholders Equity

649,903
72,000

446,694
72,000

100,000

100,000

38,675
2,931,538
3,070,213

38,675
3,193,051
3,331,726

3,792,116

3,850,420

Capital stock par value
$5 per share20, 000 shares authorized
& issued ,.
Capital contributed in
excess of par value
Retained Earnings

StaLement of Earnings and Retained Earnings

1978

1977

Revenues
Costs and Expenses
(Loss) earnings before income taxes
Income Taxes
(Loss) Earnings for Year
Retained earnings-beginning of year
Cash dividends paid
Retained earnings-end of year
(Loss) Earnings per share

3,954,413
. 4,217 ,634
(263,221)
(1,708)
(261,513)
3,193,051
2,931,538
($13.08)

5,484,939
4,790,494
694,445
88,243
606,202
2 '686, 8Li 9
(100,000)
3,193,051
$30.31

1978

1977

1,556,103
1,110,689
(445,414)

971,440
1,556,103
584,663

1978

1977

3,737,349

4,335,249

Statement of Changes in Financial Position
Working capital at beginning of year
Working capital at end of year
(Decrease) Increase in working capital
Cost of Operations (Years ended June 30)

Fixed Assets & Accumulated Depletion & Depreciation

Fixed Assets
Accumulated
Depletion &
Depreciation

Balance
July 1, 1977

Additions

Deductions

Balance
June 30, 1978

4,659,000

433,546

24,263

5,068,283

2,896,154

246,365

22,828

3,119,691

669

The land reclamation expenses are not covered in the financial
statements (Tr. 443). Reclamation expenses currently run between
$20,000 to $25,000 per month (Tr. 435). This translates into yearly
expenses ranging between $240,000 and $300,000.
The financial statement (Exh. OX-13) reveals assets valued at
$3, 792, 116 for the year ending June 30, 1978, a $58, 308 decline from
the $3,850,420 figure for the year ending June 30, 1977. Total
current liabilities increased from $446,694 to.$649,903 during the
same time period, while retained earnings declined from $3,331,726
to $3,070,213 (Exh. OX-13).
Revenues declined from $5,484,939 in the year ending June 30,
1977 to $3,954,413 in the year ending June 30, 1978 (Exh. OX-13),
·while costs and expenses failed to decline at the same rate (Exh.
OX-13). This resulted in a $261,513 loss for the year ending June 30,
1978, as opposed to the $606,202 profit for the year ending June 30,
1977.
It is impossible to determine, on the basis of the information
supplied, whether the loss experienced in the year ending June 30,
1978, is attributable to such unforeseen and nonrecurring activities
as the 1978 United Mine Workers' strike (Tr. 432-3), or whether it
indicates long term financial problems. The Respondent offered no
evidence, other than the deleterious effects of the strike, which
would have explained the decline in revenues reflected in the financial statements, a decline responsible for the loss experienced during
the year ending June 30, 1978 .. It appears, however, that the Respondent's financial posture, when viewed in light of total assets and
retained earnings, is sufficiently secure to withstand the assessment
of mod~rately appropriate civil penalties.
F.

Conclusions of Law

1. The Leechburg Mining Company and its Foster No. 65 Mine have
been subject to the provisions of the 1969 and 1977 Acts during the
respective periods involved in this proceeding.
2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to this proceeding.
3. The violations charged in the six subject orders are found
to have occurred as alleged.
4.

All of the conclusions of law set forth in Part V, A through

E of this decision are reaffirmed and incorporated herein.
VI.

Proposed Findings of Fact and Conclusions of Law

Both MSHA and Leechburg submitted postheari.ng briefs. Leechburg
also submitted a reply brief; Such briefs insofar as they can be

67-0

considered to have contained proposed findings and conclusions have
been considered fully, and expect to the extent that such findings
and conclusions have been expressly or impliedly affirmed in this
decision, they are rejected on the ground that they are, in whole or
in part, contrary to the facts and law or because they are immaterial
to the decision in this case.
VII.

Penalty Assessed

Upon consideration of the entire record in this case and the
foregoing findings of fact and conclusions of law, I find that the
assessment of a penalty is warranted as follows:
Order No.
7-0032 (1 GFM)
7-0033 ( 1 JAB)
7-0035 (1 JAB)
7-0036 (1 JAB)
7-0038 (1 JAB)
7-0047 (1 JAB)

Date

30 CFR Standard

Assessment

10/06/77
10/03/77
10/06/77
10/11/77
10/12/77
10/30/77

75.200
75.403
75.400
75.400
75.202
75.200

600.00
400.00
850.00
500.00
700.00
300.00
$3,350.00
$

ORDER
The Respondent is ordered to pay the penalty assessed in the
amount of $3,350.00 within 30 days of the date of this decision.

4.-:a

n F. Cook

Judge
Issued:

June 27, 1979

Distribution:
Anna Wolgast, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, YA 22203
Henry McC. Ingram, Esq., R. Henry Moore, Esq., Rose, Schmidt,
Dixon, Hasley, Whyte & Hardesty, 900 Oliver Building,
Pittsburgh, PA 15222 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

671

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

June 27, 1979

Application for Review

C F & I STEEL C.ORPORATION,
Applicant

v.

Docket No. DENV 78-417

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

Maxwe 11 Mine

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

Civil Penalty Proceeding
Docket No. DENV 79-127-P
A/C No. 05-02820-03001

C F & I STEEL CORPORATION,
Respondent
DECISION
Appearances:

Richard L. Fanya, Esq., Welborn, Dufford, Cook and
Brown, Denver, Colorado, for Applicant/Respondent;
Robert A. Cohen, Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, for
Respondent/Petitioner.

Before:

Judge Littlefield

Introduction
This is a combined application for review and proceeding for
assessment of civil penalty which is governed by sections 107(e)(l)
and llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 ~~· (1977 Act). Section 107(e)(l) provides
in relevant part:
Any operator notified of an order under this section
or any representative of miners notified of the issuance,

672

mod.ification, or termination of such an order may apply to
the Commission within 30 days of such notification for
reinstatement, modification or vacation of such order. The
Commission shall forthwith afford an opportunity for a
hearing (in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3) oi such
section) and thereafter shall issue an order, based upon
findings of fact, vacating, affirming, modifying, or terminating the Secretary's order. The Commission and the courts
may not grant temporary relief from the issuance of any
order under subsection (a).
Section llO(a) provides:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who
violates any other provision of this Act, shall be assessed
a civil penalty by the Secretary which penalty shall not be
more than $10,000 for each such violation. Each occurrence
of a violation of a mandatory health or safety standard may
constitute a separate offense.
Alleged Violation
On May 8, 1978, Applicant/Respondent, C F & I Steel Corporation
(CF&I), filed for review of Order of Withdrawal No. 387923 dated
April 26, 1978. On January 8, 1979, the Mine Safety and Health
Administration (MSHA), through its attorney, filed a petition for
assessment of a civil penalty charging one violation of the Act.
Said were consolidated for hearing.
·
Tribunal
Hearings were held in Denver, Colorado, on February 28, 1979, at
which both MSHA and CF&I were represented by counsel. Thereinafter,
posthearing briefs were submitted.
Evidence
1.

Stieulations:

Testimony

A.

The Maxwell Mine is subject to the 1977 Act (Tr. 3).

B.

The Judge has jurisdiction to hear this matter (Tr. 3-4).

C.

The mine employed between 25 and 28 miners (Tr. 9).

673

D.

Daily production was about 300 tons (Tr. 9).

E. Payment of a reasonable penalty would not put the company
out of business (Tr. 9).
F.

There was a good faith abatement of the cited conditions

(Tr. 9).
2.

Stipulations:

Exhibits

A. Government Exhibit No. 1, a copy of Order of Withdrawal
No. 387928, issued April 26, 1978, at 1:40 p.m. and terminated at
3:20 p.m. (Tr. 7; Govt. Exh. No. 1).

B. Government Exhibit No. 2, a copy of a map of the Maxwell
Mine, dated January 4, 1979, received by MESA 1/ at the Denver Office
on February 8, 1979 (Tr. 7; Govt. Exh. No. 2) .-

C. Government Exhibit No. 3, a copy of a dust sarr~ling
report, received from the MESA lab from a sample taken at the time
the order was issued (Tr. 7; Govt. Exh. No. 3).
D. Government Exhibit No. 4, a computer printout frorc~ ._tie
Office of Assessments, showing the operator, the mine and the previous history of violations for the 24-month period prior to the
issued order (Tr. 7; Govt~ Exh. No. 4).

E. CF&I Exhibit No. 1, a map showing the area which is subject to the withdrawal order (Tr. 7; CFI Exh. No. 1).
3.

Exhibits on Testimony

A. Government Exhibit No. 5, the inspector's statement (Tr.
98-99; Govt. Exh. No. 5).

B. CF&I Exhibit No. 2, a report from graveyard foreman of
duties and reply by Mr. George Argurello identified by Mr. Massarotti
(Tr. 163-170; CF&I Exh. No. 2).

4.

Testimony
A.

Inspector Lawrence Rivera

Exclusive of stipulations, the Government initiated its case
through the testimony of inspector Lawrence Rivera, a duly authorized
representative of the Secretary (DAR) for 7-1/2 years (Tr. 10).
'};../

Statutory predecessor-in-interest to MSHA.

674

Therein, he testified, in relevant part, that he was on a regular
health and safety inspection at the Maxwell Mine (Tr. 11-12). He
stated that he had completed an investigation of the face area at
Unit No. 1, approximately 3,000 feet from the portal (Tr. 14). He
determined to return along the belt entry. Approximately 300 feet
from the coal pocket, a point which transfers coal from one belt to
another (Tr. 14-16), he encountered a substantial amount of float coal
dust (Tr. 17-18). After proceeding approximately 50 more feet, he
concluded that he would not go on (Tr. 17-18). The area had gotten
darker and darker, such that he was unable to see more than 4 or
5 feet ahead (Tr. 18). There was some dust sticking to the roof and
ribs and some on top of the water in the entry (Tr. 19). He was'
unable to tell whether the area had been rock dusted as it was too
dark·fo see (Tr. 19).
After he asked a CF&I employee to shut the belt off so that he
could determine what action was appropriate (Tr. 19-20), he waited
about 15 minutes before proceeding to the pocket area (Tr. 20).
He described the belt pocket conditions as consisting of a
12-foot accumulation at the end of the tail of the belt. The material
measured 24 inches in depth, approximately uniform for the 12-foot
distance (Tr. 21). The roof and ribs were black. There was a little
float coal dust in suspension (Tr. 21).
The belt rollers were running in the fine coal dust and the belt
was warm to the touch and, in fact, the belt was starting to get hot
(Tr. 22).
The inspector did not observe any water sprays at the coal pocket
(Tr. 22-23). The belt was in good shape (Tr. 23). The only thing
that he was told about how the problem was started was that the accumulation had started to build up 3 hours prior to the incident (Tr.
23).
The inspector took a sample from under the belt because he felt
it was creating the float coal dust (Tr. 24). Government Exhibit
No. 3 was identified as a report on the above-noted sample (Tr.
24-27; Govt. Exh. No. 3).
There was water in the coal pocket, but not where the coal dust
was accumulating (Tr. 27). The condition of the material was dry
and black (Tr. 28). The mine regularly emits methane (Tr. 28).
Sources of ignition included the rollers and the possibility
of flaws in the electrical cables (Tr. 29). He issued the order
because he was concerned for a possible explosion (Tr. 29). With
any little spark or hot roller or belt roller with float coal dust
in the area, an explosion could have occurred which would have
gone to the face area (Tr. 29). There were men who regularly
worked in the ·face area (Tr. 30) •

675

A Mr. Pugnetti told Inspector Rivera that he had known of the
condition for about 3 hours, but that he did not realize that it had
built up so fast (Tr. 31).
He characterized the float coal dust as the worst he had seen
(Tr. 32). He believed that adequate dust to constitute an imminent
danger, existed when he could not walk through and see with his light
(Tr. 32).
Though he considered the conditions collectively prior to
issuance of the order (Tr. 34), he did not know whether the operator
had a cleanup program, nor whether rock dusting was regularly done
(Tr. 34).
He was told that the operator intended to take care of this at
the beginning of the afternoon shift, but the inspector believed that
an imminent danger already existed (Tr. 35). He characterized the
condition cited as very serious (Tr. 35). The operator knew of the
condition based on the statements made.
There was no evidence that the operator had done any cleanup 1n
that particular area (Tr. 37).
With respect to abatement, there was the following colloquy:
(By Inspector Rivera):
A. They immediately started some·men on it to clean
up the area, and when the day shift went out~ they brought
the day shift in and they immediately took steps towards
correcting the condition.
(By MSHA counsel, Mr. Cohen):

Q.

How did they abate the condition of spillage along

the belt?
A. They removed all the fine coal dust from under the
belt and put it on one side, and they rock dusted the area
approximately 300 feet, and then loaded the fine coal dust
on the belt after it was removed from under the belt.
Q.

How many men did it take?

A. They took twp men immediately, and after that, I
counted four there at all times, and at times I believe
there was more there because they were all trying to work
together.

676

Q. How about along the· main belt entry inby from the
coal pocket, what did they do to abate the conditions in
that area?
A.

They applied some additional rock dust on to it.

Q.

Did your' observe them doing this?

A.

Yes.

(Tr. 38).

Q. (By Mr. Cohen) Just tell us what the operator did
to abate the condition in the main belt outby from the coal
hopper or inby from the coal hopper?
A. Like I said, they removed all the fine coal and
coal dust from under the belt and moved it over to a site,
because they asked me if they could use a belt and load
directly into the belt, and I said no. They would have to
remove it over to the side and then they could load it onto
the belt.

Q.

And this was in the belt entry itself?

A. Under the pocket. That is where the condition
existed for the fine coal and coal dust.
(Tr. 39).

Q.

But the float coal dust was in the belt entry?

A.

Yes.

Q. And in that area, I think you previously said they
basically rock dusted?
A.

Rock dusted the whole area.

Q. After they went through this abatement procedure,
did you walk through the entire area?
A.

That's right.

Q.

Did you decide the conditions were abated?

A.

Yes.

(Tr. 40).

677

Inspector Rivera further testified on cross~examination that he
did order the belt shut off, but did not issue the withdrawal order
at issue at that time (Tr. 47).
The inspector reiterated his conclusion, that some time had
the coal had been pulverized (Tr. 55, 57). He made
no checks of the electrical equipment in the pocket to see if there
were faults (Tr. 59). He was aware of instances where there have
been friction-caused explosions (Tr. 61). The area was not wet next
to the belt, despite sloping of the floor (Tr. 62). There was no
methane present when the inspector did his methane check (Tr. 66).
passef,~ecause

The inspector was unsure whether he was going to issue an order
or notice when he told the company to turn off the belt (Tr. 70). He
reiterated that he went into the pocket to see what was creating the
dust ( Tr • 71) •
At the point when he ordered the belts stopped, he was aware that
there were electrical sources in the pocket, including a pump (Tr. 7172). The inspector did not believe that his original order to turn
off the belt was the.imminent danger order herein at issue (Tr. 73).
During the cleanup, which took about 55 minutes (Tr. 75-80), he
was in the general vicinity of the pocket (Tr. 80).
The inspector further testified that a ventilation door was
closed rather than opened, thus affecting the flow of air (Tr. 8485). Had the door been open, the explosion would have taken the
shortest way, out of the exhaust shaft, and thus not encountered any
people (Tr. 87).
The inspector believed that the dust had only traveled 300 feet
because there is less ventilation on the belt than in the intake
entries (Tr. 91).
The inspector again testified on redirect examination that his
imminent danger order was not issued until he had gathered further
information from the pocket (Tr. 97). He asked management to shut
off the belt so that he could see what he was doing (Tr. 98). He
believed that the alleged violation was significant and substantial
and marked it as such on Exhibit No. 1 (Tr. 103; Govt. Exh. No. 1).
B.

Robert D. Vigil

MSHA's second witness was Robert David Vigil, a coal miner who
worked at he Maxwell Mine and served as a safety and pit committee
representative (Tr. 104). He testified that the belt area had to be
ventilated and bled to prevent a methane buildup (Tr. 107). The
company did not have a man assign~ ~o be just a belt cleaner (Tr.
109).

678

He also previously observed float coal dust during the time in
question (Tr. 109-110). The color of the area was black (Tr. 110).
He observed between four and six people working on the cleanup (Tr.
110). He had previously observed black entry conditions and
brought them to management's attention (Tr. 111-112).
When he arrived at the pocket 10 or 15 minutes after 3 o'clock,
he did not ob.serve float coal dust in the atmosphere (Tr. 113). The
operator hauled a lot of rock dust to pursue the abatement (Tr. 115).
He did not know whether the door in question was open or shut (Tr.
117-118).

c.

Frank Perko

CF&I initiated its case through the testimony of Mr. Frank Perko,
who served as a mine safety inspector at the CF&I mine (Tr. 121). He
had served in that capacity for 1-1/2 years with 7 years prior to
that as an engineer's helper (Tr. 121).
He provided detailed testimony as to the nature of the belt
system in the mine (Tr. 122-126). At the pocket in question at
about 10:30-11 o'clock (Tr. 126), he found coal spillage, two piles
at the tail of the roller, approximately a foot in diameter by
6 inches deep (Tr. 127). Otherwise, every thing looked all right in
the pocket area (Tr. 127-128). He informed the general mine foreman of the stated condition (Tr. 128). Apparently, nothing was done
to remedy the condition (Tr. 127-128).
He attended Mr. Rivera at the pocket wher~ he observed another
pile of coal which was not previously there. l;.t appeared to have
been caused by a side rubber becoming unfastened (Tr. 130).
He did not see any dust in the atmosphere (Tr. 132). He
observed water generally flowing under the belt with a slight slope
in the concrete floor toward the pump in the pocket (Tr. 132-133).
The cleanup was initiated through the use of a 1-inch hose and
shoveling (Tr. 135-136). As it was mixed with water, he was unable
to tell how much coal there was when they finished piling it up (Tr.
136).
On cross-examination, Mr. Perko conceded that the absence of
water sprays in the pocket could create a dust control problem if
it was not watched by the fire boss (Tr. 143). He conceded as well
that there had been a change in the color of the roof and ribs from
a grayish color when he had been through in the morning (Tr. 145146).

The coal that was on the rollers was a fine coal (Tr. 149-150).
He was not present when rock dusting was done (Tr. 153).

679

A discussion ensued between counsel on the admissibility of
testimony with reference to the extent of the area of belts shut
down (Tr. 156-158). The Judge ruled that testimony with respect
to the entire belt was admissible (Tr. 158), considering that it
was all shut down (Tr. 157) and the fact that there was an imminent
danger order issued (Tr. 158).
D.

Fl9rie Massarotti

CF&I's final witness was Florie Massarotti, general mine foreman
at the Maxwell Mine (Tr. 163). He had previously served as dust mine
inspector for CF&I for 3 years (Tr. 163-164). He testified as to the
contents of Respondent's Exhibit No. 2 (Tr. 164-170), which was
admitted (Tr. 170; CF&I Exh. No. 2). 1:./
On the day in question, the witness was called by Mr. Richard
Oxford, who was the person who was conducting the preshift examination
for the second shift which was due at 3 o'clock (Tr. 171). Mr. Oxford
stated on the phone to Mr~ Massarotti that Mr. Rivera wanted the belt
turned off. Mr. Rivera spoke to the witness and stated that coal had
spilled into the pocket (Tr. 171).
The witness stated that he believed, based on the spacing of
phone calls, that it took two men 7-1/2 minutes to shovel all the
spilled coal onto the belt (Tr. 175-176).
With reference to the door being opened, he stated that the door
must have been open because there were no accumulations of methane
which there would have been had the door been closed (Tr. 177-179).
On cross-ex"'amination, the witness admitted that there were times
when loose coal or float coal or dust did accumulate on the framework
of the belt, but such was washed off (Tr. 181-182).

He was not sure whether they had water sprays at the pocket
because they had only been in operation 30 days (Tr. 183). He
believed the first shift foreman would have begun the cleanup, however, he was not sure. If he intended to clean it up, he would
have been there ~t the time the inspector wrote the order (Tr. 184).

Mr. Oxford mentioned to the witness that the dust in the
atmosphere was not bad enough to require a belt shut down (Tr. 187).

1:./

Said exhibit purports to show in relevant part that the area in
question was rock dusted on the graveyard shift the night before the
order (Tr. 165).

680

Issues Presented
1. Whether the conditions observed and known by Inspector
Rivera on April 26, 1978, at the Maxwell Mine were such as to support the issuance of a section 107(a) withdrawal order.
2. Whether the aforementioned conditions constitute a violation
of 30 CFR 75.400.
3. Assuming a violation of 30 CFR 75.400 is established, what
is the appropriate civil p~nalty?
Discussion
A.

Imminent Danger; Time and Place

Section 107(a) of the 1977 Act provides:
If, upon ·any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of
the area of such mine throughout which the danger exists,
and issue an order requiring the operator of such mine to
cause all persons, except those referred to in section
104(c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of
the Secretary determines that such imminent danger and
the conditions or practices which caused such imminent
danger no longer exist. The issuance of an order under
this subsection shall ·not preclude the issuance of a
citation under section 104 or the proposing of a penalty
under section 110.
The cognate provision of the Federal Coal Mine Health and Safety
Act of 1969, P.L. 91-173 (December 30, 1969) (1969 Act), section
104(a), provides:
If, upon any inspection of a coal mine, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
area throughout which such danger exists, and thereupon
shall.issue forthwith an order requiring the operator of
the mine or his agent to cause immediately all persons,
except those referred to in subsection ( d) o·f this section,
to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary determines that such imminent danger no longer exists.
There are no substantive distinctions in the causes for issuance
of orders on the face of the two statutory sections, nor are there
681

differences in the definitions of "imminent danger" provided by the
two Acts. Compare section 3(j) (1969 Act), with section 3(j) (i977
Act). Therefore, previous judicial construction of the concept of
imminent danger under the 1969.Act controls the construction of the
same concept under the 1977 Act, exclusive of the carry-over provision, section 301, of the 1977 Act.
The purpose of the imminent danger withdrawal order is to assure
that miners will not carry on routine mining operations in the face
of imminent danger. Freeman Coal Mining Company v. Interior Board of
Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974). Imminent
danger also requires that the condition or practice observed could
reasonably be expected to cause death or serious physical injury.
Eastern Associated Coal Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974). However, the term is
not confined to situations of immediate danger. Old Ben Coal Corporation v. Interior Board of Mine Operations Appeals, 523 F.2d 25
(7th Cir. 1975). Finally, it has been held that situations involving
accumulations may rise to the level of an imminent danger justifying
a withdrawal order. l!!_.; Freeman, supra.
In assessing the existence of such a danger, it is also noted
that Respondent must prove the absence of an "imminent danger." Old
~' supra.
One aspect of Respondent's attack on the order, is alleged confusion on the. part of the inspector as to when the 107(a) order was
issued (Brief of CF&I at 5-6). As asserted by CF&I, the inspector
allegedly concedes that he did issue his order when he initially
required that the belt be stopped (Tr. 46-47).
I conclude that the evidence does not support the assertion. The inspector stated specifically that he did not issue his
"withdrawal order" at the time of the belt stoppage' (Tr. 47, 97),
and that he was not sure what enforcement action was warranted, if
any, at the time of the stoppage (Tr. 70-71). The alleged ambiguity
found by CF&I (Brief of CF&I at 5), is purely linguistic, not
conceptual, and substantially reflects the clever phrasing of the
question on cross-examination (Tr. 46-47).
Lurking behind or&I.~··sargument is the theory that every instructional action of the inspector is an enforcement action cognizable
under the Act, 3/ at least when an order follows. Thus, the focus
on propriety wo~ld be limited to what the inspector knew at the time

37

It is doubtful that CF&I would really like to see such a construction as civil penalties are mandatory for violations of any provision
of the Act and mandatory safety or health standard. Section llO(a),
supra.

682

of the belt stoppage. Such an analysis would tie the inspector's
hands as he were. caug:l..i: :,etweenScyJ.la and Charybdis--the rock and· the
hard place. He would either issue the order too soon and lack
supporting evidence, or wait too long until he could be sure of
factual and legal foundations, running the risk of injury to himself
or others.
Undoubtedly, there has to be some authority on the part of the
inspector to order reasonable actions which are not enforcement
actions. Such an area of discretionary power is the rough equivalent
of a "Terry stop." See Terry v. Ohio, 392 U.S. 1 (1968). Such
residual authority to issue-a fundamentally nonrestrictive request/
order must be an implied authority of the inspector for him to perform his inspection function. Clearly, an inspector has the inherent
authority to request/order an operator to turn off the power on. a
cutting machine to inspect a trailing cable, pursuant to 30 CFR
75.600 et seq., or to check other electrical equipment. 30 CFR 75.500
et seq.~In the instant case, the inspector had to request that the
belt be turned off so that he could contrive to inspect it (Tr. 17-20,
98). Certainly, CF°&I would not e:tpect the inspector to check the
temperature of the belt rollers when the belt was running.
That it took 15 more minutes for the inspector to continue his
inspection is indicative of the seriousness of the dust problem. It
does not change the point of issuance of the withdrawal order.
I conclude that the request/order to stop the belt was an order
based on the residual power of the inspector to issue orders pursuant
to the many necessary steps in the conducting of his investigation.
See Terry, supra. I further conclude the proper factual focus is
the cumulation_ of information which the inspector had prior to the
issuance of the withdrawal order.
B.

Adequacy of the Notice Provided by the Order

CF&I also argues that the evidence of dust down entry No. 8
(belt No. 2) must be disregarded as such was not referred to on the
face of the order (Brief of CF&I at 3-4). The essence of the argument is that CF&I lacks adequate notice of the conditions charged
and that other interested parties, miners' representatives, state
officials, and others, were also deprived of that notice (Tr. 38-40;
Govt. Exh. No. 1).
In support of its argument, on the required notice, CF&I cites
Armco Steel Corporation, 8 IBMA 88 (1977 ) (Armco I). I conclude
that Armco I is factually di~tinguished in that the order cited
therein provided no description of the conditions or practices constituting imminent"-danger. Id. at 96. Here, we have such a
description, "coal, coal dust:' and float coal dust were present at
the h~pper * * *
Such a ~escription notir1es both CF&I and others

683

interested, that float coal dust is involved. One of the characteristics of "float" coal dust ·is that it floats with the direction
of the ventilation. As the intent of Armco I and II was to give
notice of the generalized problem to miners' representatives,
state officials and others, and as float coal dust is not static,
the order is reasonably construed as giving adequate notice of the
general extent of the problem to third parties.
Further, CF&I states that there is a due process notice problem
in the order and that such problem was the concern of Armco I (Brief
of CF&I at 4). Assuming, arguendo, that CF&I was right in that it
real~y did not know that the order which shut down the whole main
belt would involve consideration of dust on the whole main belt (Tr.
156-158; Govt. Exh. No. 1), CF&I still has not demonstrated a due
process problem with the notice received. The order is not a pleading in the case, it was not drafted for the purpose of defining the
full and complete extent of MSHA's case at a hearing. As CF&I has
argued, supra, that the order was issued when the belt was first
stopped, it is clearly on actual notice of the presence of dust in
the No. 8 entry (belt No. 2). If CF&I had a question as to the
extent of the issues to be addressed by its application in this
case, it had only to file for a bill of particulars or pursue discovery. Failure to so act constitutes a waiver of its argument on
lack of notice. See Mathies Coal Company, PITT 77-39-P (May 5,
1978) at 8-10.
C.

Factual Support for the Order

Prior to the issuance of the order, the inspector knew that
300 feet or so from the belt pocket there was a sufficient accumulation of float coal dust to lower vision to 4 or 5 feet (Tr. 14-18).
There was dust sticking to the roof and ribs and some on top of
water in the entry (Tr. 19). The belt pocket revealed a 12-foot
long accumulation of coal at the end of the tailpiece approximately
24 inches deep (Tr. 21). The roof and ribs were black and there was
a little float coal dust in suspension (Tr. 21). The belt rollers
were running in fine coal dust and the belt was warm to the touch
and, in fact, getting hot (Tr. 22). There were no water sprayers in
the pocket (Tr. 22-23).
The inspector believed ignition was possible from the roller
belts or flaws in the electrical cables (Tr. 29). The inspector
was aware of men regularly working in the face area (Tr. 30).
The inspector was told by Mr. Pugnetti that Mr. Pugnetti had
been aware of the condition for about 3 hours, but did not realize
it had built up so fast (Tr. 31). The inspector was not aware of
any defects in the electrical equipment nor was methane found to
be present (Tr.• 59, 66).
·

684

He was also aware that a ventilation door was closed which
would have prevented an explosion from taking the shortest way out
of the mine, which way would have avoided the men at the face (Tr.
84-85, 87). Mr. Vigil supported the inspector's testimony as to
the black color of the area (Tr. 110).

Mr. Perko stated that he was aware of the coal spillage between
10:30 and 11 o'clock (Tr. 127), thus supporting the inspector's testimony as to knowledge of the operator. He did not, however, see
dust in the atmosphere (Tr. 132). He did see a blacker area than
when he had passed through in the morning (Tr. 145-146) and also
saw fine dust on the rollers (Tr. 149-150).
Mr. Massarotti indirectly supported the inspector's testimony
as to atmospheric dust when he related Mr. Oxford's conclusion that
there was not enough dust in the atmosphere to warrant a shut down
(Tr. 187).
The only testimony of the inspector which was controverted by
eyewitness accounts, is his statement that there was float coal dust
in the pocket. Mr. Perko did not see dust (Tr. 132). However, the
fact that the color of the area was black proves that there had been
float coal dust. I conclude that the weight of the evidence establishes the presence of float coal dust in the atmosphere when the
order was issued. Had the belt been turned on befor~ cleanup, more
would have been added. As .there was accmulated coal 24 inches deep
for 12 feet, and as the belt was hot and would have gotten hotter if
the belt were reactivated prior to cleanup, there was a substantial
potential for an explosion. Zeigler Coal Company, 6 IBMA 132, 136
(1976). I further conclude that the existence of apparently permissible electrical equipment (Tr. 59) was not a source of potential ignition.
I conclude that the likely direction of an explosion was toward
the face area, due to the ventilation door being closed. I conclude
that the door was closed due to the uncontradicted, positive testimony of the inspector. The inspector's testimony was corroborated
by the drifting of float coal dust 300 feet up toward the face area
from the pocket. The contrary, fully rational, speculation of
Mr. Massarotti is not persuasive (Tr. 177-179) in light of the above.
As explosions can cause death or serious physical injury and
as there was a reasonable possibility that an explosion could have
occurred due to the presence of loose coal, dust and a hot belt, I
conclude that CF&I has failed to prove the absence of an imminent
danger. The order is upheld.
D.

Existence of a Violation of 3-0 CFR 75~400

The violation charged, 30 CFR 75.400, provides:

685

§ 75.400

Accumulat'ion 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.
Under section 301 of the 1977 Act, the interpretation of the
regulation is controlled by Old Ben Coal.Company, 8 IBMA 98 (1977).
As noted by MSHA, the case is currently being addressed by the
Federal Mine Safty and Health Review Commission (Brief of MSHA
at 5).
At a minimum, there mu~t be an accumulation of coal to warrant a
finding of a violation. Such has been found. ~' supra.
Further, it is argued that MSHA must show notice of the accumulation. Mr. Perko testified that he had seen two piles of coal at
the pocket, each 1 'foot in diameter, and 6 inches deep (Tr. 127).
While such might not be substantial enough to be considered an
imminent danger, it still constitutes an accumulation of which CF&I
-~ notice for purposes of the mandatory standard (Brief of CF&I at
10). As this inspection by Mr. Perko revealed the presence of an
accumulation, CF&I had actual knowledge of its existence for 2-1/2
to 3 hour& (Tr. 127-128). As Old Ben, supra, requires an effective
cleanup program, it is difficult to see how CF&I can demonstrate
that effectiveness with the passage of time involved here and the
knowledge available.
Further, CF&I shows knowledge of the limitations of its cleanup
system when Mr~ Perko conceded that absence of water sprays could
create a dust control problem if the area was not watched by the
fire boss (Tr. 143).
As accumulations are more dangerous when they are fine and dry,
and as CF&I knew that these small piles existed, CF&I had a higher
standard of care for cleaning up small piles of dust than it would
have if it was providing a sprayer.
The requirement of a more immediate response to even small
accumulations is further supported by the fact that no one was
assigned as a designated belt cleaner who would have had the
specific job to look for accumulations (Tr. 109). The weak~ess
of the cleanup system is shown by the failure to respond to an
identified accumulation which later rose to the level of an
imminent danger.

686

I conclude that MSHA has demonstrated CF&I's' failure to conform
with 30 CFR 75.400 as construed by Old Ben, supra. !.!:./
E.

Penalty Criteria

Assessment of a civil penalty, upon the finding of a violation,
is mandatory. Section llO(i) of the Act provides the following criteria for de novo 2./ review:
The Commission shall have authority to assess aU
civil penalties provided in this Act. In assessing
civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
1.

History of Previous Violations

Respondent has been shown to have violated 30 CFR 75.400 only
once in the 2 years preceding the order (Govt. Exh. No. 4). However, such violation also involved an imminent.danger withdrawal
order. The relative seriousness of such an order, combined with
the 124 total violations for the period (Govt. Exh. No. 4), leads
me to conclude that CF&I does have a history of violations sufficient
to increase the size of a penaltye
2.

Size of Business

The mine employed between 25 and 28 workers and produced approximately 300 tons daily (Tr. 9). I conclude, therefrom, that the mine
was medium in size.
3.

Ability to Stay in Business

A stipulation was entered that a Yeasonable penalty would not
put the operator out of business (Tr. 9). As the operator introduced nothing to demonstrate that the imposition of a maximum penalty for a single violation would affect the operator's ability to
stay in bus_iness, and as the mine is of medium size, I conclude.· that

4/

Pursuant to this conclusion, it is not necessary to address the
issue of whether a penalty could be imposed for a violation of section 107(a) absent a finding of a violation of 30 CFR 75.400.
5/ See ·Shamrock Coal Company, Docket Ne. BARB 78-82-F et~·
(FMSH'RC, June 7, 1979).
-

687

a maximum penalty is a reasonable penalty and would not affect the
operator's ability to continue in business. See Hall Coal Company,
1 IBMA 175, 179-182 (1972).
4.

Good Faith

It was also stipulated that the operator acted in good faith
in abating the cited conditions (Tr. 9). Such is accepted (Tr. 3840).
5.

Gravity

By virtue of the affirmance of the order charging imminent
danger, the condition cited must be and is construed as inherently
grave.
Further significant in terms of gravity, is the very real
likelihood of an explosion. The inspector testified that the bel't
was running in fine coal dust and was warm and starting to get hot
(Tr. 22). It appears that the inspector misspoke himself. As the
belt had been off for 15 minutes or more prior to his touching the
roller and belt (Tr. 20), they both had had that amount of time to
dissipate heat. Thus, the condition was even more serious than the
inspector stated because the belt and rollers would have been hot,
thus increasing dramatically the likelihood of a spark which could
have created an explosion. As the float coal dust in the atmosphere
was extremely heavy as far as 300 feet down the belt (Tr. 18, 32),
and the coal in which the belt was running was dry (Tr. 22-23, 28),
and black (Tr. 28), and fine (Tr. 22, 149-150), the likelihood of
an actual explosion was much greater than in the normal accumulation situation where relatively large chunks of damp coal might be
found.
I conclude that the situation would have been extremely grave,
due to the nature of the threat (explosion), the possible victims
(men at the face), and the likelihood of occurrence (dry fine coal
dust in suspension accumulate.d for 12 feet, 2 feet deep exposed to
a hot belt).
6.

Negligence

The problem of negligence is first addressed in terms of the
knowledge of the two small accmulation piles (Tr. 127). The fire
boss' knowledge is clearly imputed to the operator. Pocahontas
Fuel Company, 8 IBMA 136 (1977), aff'd ~~·Pocahontas Fuel
Company v. Andrus, 77-2239 (4th Cir., filed Janua.ry 8, 1979).
Further, this problem was known to the general mine foreman for
2-1/2 to 3 hours (Tr. 127-128). Mr. Massoratti testified that if
the shift foreman had intended to clean up the accumulation, he
would have been in the pocket when the inspector arrived (Tr. 189).

688

There is no evidence that the shift foreman was there when Inspector Rivera arrived. Therefore, it is not possible to infer that the
accumulations would have been discovered if there were no Federal
inspection. Given the fact that dust had accumulated slowly down
300 feet of the belt way, the belt and/or rollers must have been
running in coal sometime. The operator knew of the dry coal conditions (Tr. 14.3), knew of two piles of coal being formed (see, supra),
had 3 hour~ to act on the piles (Tr. 127), failed to find"""O'r act
upon 300 feet of heavy, suspended coal dust during the period when
such conditions developed, which must have taken some time, perhaps
almost 3 hours, as the coal was pulverized (Tr. 91), and failed to
find or act upon the accumulation which caused the coal dust during
that same time (Tr. 21). The conditions of which the operator was
specifically aware, dry coal and two small piles of loose coal,
should have put it on inquiry notice to at least
pass through
the area within the 3 hours and keep a check on the accumulations.
I therefore find that the operator was grossly negligent, even though
it was not aware of the alleged specific cause of the spilling coal,
to wit, a side rubber unfastening (Tr. 130).
Findings of Fact
Upon consideration of the entire record, I find:
1. The Judge has jurisdiction over the subject matter and parties in this proceeding;
2. The preponderance of the evidence establishes the fact of
violation of 30 CFR 75.400;
3. CF&l has failed to rebut the inspector's finding of imminent
danger. Therefore, an imminent danger existed on April 26, 1978,
at CF&I's Maxwell Mine as cited in Order No. 387928;
4. CF&I has once previously violated 30 CFR 75.400 and had 123
other previous violations (Govt. Exh. No. 4);
5.

CF&I is a medium-sized operator (Tr. 9);

6. The penalty imposed will not affect the operator's ability
to remain in business;
7. The operator showed good faith in remedying the cited violation (Tr. 9);
8.

The violation was extremely serious;

9. The operator was grossly negligent in allowing the cited
condition to continue to develop for the time period in question.

689

Conclusions of Law
1. This case arose under sections 107(e)(l) and llO(a) of
the Federal Mine Safety and Health Act of 1977, P.L. 95-164
(November 9, 1977);
2. All procedural prerequisites established by the above-cited
statute have been complied with;
3.

An imminent danger existed at the Maxwell Mine on April 26,

1978;
4. CF&I has violated 30 CFR 75.400, a mandatory health and
safety provision of the above-cited statute.
5. A civil penalty must be assessed in accordance with the provisions of the above-cited statute.
Application of Penaltx
All evidence in the record bearing on the criteria and mitigating
and aggravating circumstances have been considered fully.
Accordingly, Respondent is assessed the following civil penalty:
Order No.

Date

Section

Penalty

387928

4/26/78

30 CFR 75.400

$2,000

ORDER
WHEREFORE IT IS ORDERED that CF&I Steel Corporation pay the
above-assessed civil penalty in the amount of $2,000 within 30 days
from the date of this decision.

~f:6~d
r~Ji~olm
~
.

P. Littlefield lij';-&
Administrative Law Jud

Distribution:
Richard Fo Fanyo, Esq., Welborn, Dufford, Cook and Brown,
1100 United Bank Center, Denver, CO 80290 (Certified Mail)
Robert A. Cohen, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203
Harrison Combs, Esq., United Mine Workers of America, 900 15th
St., NW., Washington, DC 20005 (Certified Mail)

690

FEOIEHAL UUNE SAFETY ANO H:EtllTt~ REV!~W COMfv~&S5BON
OFFICE Of ADMINISTRATIVE LAW JUOGES
4015 WILSON BOULEVA~D
ARLINGTON, VIRGINIA 22203

June 27, 1979

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

v.
SEWELL COAL COMPANY,
· Respondent

Civil Penalty Proceeding
Docket No. HOPE 78-679-P 1/
(Assessment Control No. 46-03467-02069V)
Meadow River No. 1 Mine

DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Robert C. Kota, Esq., Lebanon, Virginia, for
Respondent.

Before:

Administrative Law Judge Steffey

The Petition for Assessment of Civil Penalty filed in Docket No.
HOPE 78-679-P seeks assessment of civil penalties for 11 alleged violations of the mandatory health and safety standards. Three of the
11 alleged violations pertain to three withdrawal orders which were
the subject of Applications for Review filed in Docket Nos. HOPE
78-44, HOPE 78-71, and HOPE 78-73. When the hearing in the consolidated review proceeding in Docket Nos. HOPE 78-44, et al., was held,
evidence was received with respect to.any civil penaltY-issues which
thereafter might be raised if MSHA should subsequently file a petition for assessment of civil penalty with respect to the violations
-alleged. in the th.r.ee order.s which were the subject of the ·review proceeding. A decision with respect to the issues raised by the Applications for Review in Docket Nos. HOPE 78-4l~, et al., was issued on
March 30, 1978. That decision deferred all rulings on the civil
penalty issues until such time as a petition for assessment of civil
penalty might be filed by MSHA requesting that civil penalties be
assessed for the violations alleged in the three withdrawal orders
which were under review in Docket Nos. HOPE 78-44, et al.
The Petition for Assessment of Civil Penalty in Docket No. HOPE
78-679-P asks that civil penalties be assessed with respect to the
violations alleged in the three withdrawal orders involved in the

1./

The civil penalty issues in this decision have been decided on
the basis of the record previously made in Docket Nos. HOPE 78-44,
et al.

--

691

review cases in Docket Nos. HOPE 78-44, et al. This decision,
therefore, will dispose of the civil penaltyissues which were
deferred at the t.ime my decision in Docket Nos• HOPE 78-44, et al.,
was issued. This decision will, of course, be based on the record
made in Docket Nos. HOPE 78-44, ~!!!_.
The order accompanying this decision will sever from the Petition
for Assessment of Civil Penalty filed in Docket No. HOPE 78-679-P all
civil penalty issues with respect to the three withdrawal orders which
were involved in the proceeding in Docket Nos. HOPE 78-44, et al., so
tha.t a hearing can hereafter be scheduled for the purpose ofmaking a
record to resolve the issues which remain to be decided with respect
to the violations alleged in the other eight withdrawal orders which
are the subject of MSHA.1 s Petition for Assessment of Civil Penalty
filed in Docket No. HOPE 78-679-P.
Issues
The issues to be considered with respect to each of the three
orders are whether a violation of a mandatory health or safety standard occurred and, if so, what civil penalty should be assessed,
based on the six criteria set forth in section llO(i) of the Act.
General Considerations
Section llO(i) of the Act provides that civil penalties shall be
assessed after giving consideration to the six criteria. Four of
those six factors may usually be given a general evaluation, while
the remaining two, namely, the gravity of the violation and whether
the operator was negligent, should be considered specifically in
reviewing the evidence introduced with respect to each violation.
The criteria which may be given a general review will be evaluated
first.
History of Previous Violations
Exhibit 13 is a computer printout of 26 pages which was introduced by counsel for MSHA for the purpose of showing respondent's
history of previous violations. Exhibit 13 shows that respondent
has previously violated the three mandatory safety standards here
under consideration. Therefore, when penalties are hereinafter
assessed, I shall give specific consideration to respondent's history of previous violations and the penalty otherwise assessable
under the other five criteria will be increased if the facts warrant an increase under the criterion of respondent's history of
previous violations.
Appropriateness of Penalty to Size of Operator's Business
Respondent operates five underground mines and four preparation
plants. The mine which is involved in this proceeding is the Meadow

692

River No. 1 Mine which employs 191 men·underground and 38 on the surface to produce 750 tons of coal per day. The mine has six sections
or units which utilize continuous-mining machines. All six units are
operated on two shifts per day and two units are additionally operated on the midnight-to-8 a.m. shift. the Meadow River No. 1 Mine
is entered by means of two shafts and one slope. Part of the coal
produced from the mine is shipped overseas and part of it is used for
blending with other coal. Respondent is a Division of the Pittston
Company.
On the basis of the facts given above, I find that respondent
operates a large.coal business and that any penalties which are hereinafter assessed should be in the upper range of magnitude to the
exte~t that the penalties are based on the size of respondent's
business.
Effect of Penalties on Operator's Ability to Continue in Business
Counsel for respondent in the proceedings in Docket Nos. HOPE
78-44, et al., stated that payment of penalties would not cause
resp.:mdentto discontinue in business (Tr. 256). On the basis of
counsel's statement, I find that payment of penalties will not cause
respondent to discontinue in the coal business.
Good Faith Effort to Achieve Rapid Compliance
As to Order No. 3 HSG issued October 17, 1977, it will hereinafter be necessary for me to discuss the criterion of good faith
effort to achieve rapid compliance in the part of this decision
which assesses a penalty for the violation of section 75.316 because
the circumstances surrounding that violation require a specific
explanation to show why the criterion of respondent's good faith
effort to achieve rapid compliance is not applicable to Order No. 3
HSG.
The inspector testified that respondent demonstrated a good faith
effort to achieve rapid compliance with respect to the violation of
section 75.200 alleged in Order No. 1 HSG issued October 26, 1977
(Tr. 177). Respondent will hereinafter be given full credit for having shown a normal effort to achieve r~pid compliance when a penalty
is assessed for the violation of section 75.200.
The inspector said that respondent's cleaning up the loose coal
and coal dust accumulations cited in Order No. 1 HSG issued
October 27, 1977, by 10: 10 a .m. of the following day was so rapid
that it surprised him. Therefore, he rated respondent's abatement of
Order No. 1 HSG as being better than average (Tr. 201). It is rare
for me to find that an operator has abated a given violation with
greater speed than an inspector had anticipated. Therefore, when a

693

penalty is hereinafter assessed with respect to the violation of section 75.400 alleged in Order No. 1 HSG, I shall reduce the penalty by
10 percent because of the operator's unusual effort to achieve rapid
compliance.
.
Consideration of Remaining Factors
As indicated above, two of the six criteria set forth in section
llO(i) of the Act, that is, gravity of the violations and whether the
operator was negligent, must be specifically considered in reviewing
the evidence presented by MSHA and respondent with respect to each
violation. When violations are hereinafter found to have occurred,
findings as to gravity and negligence will be made and penalties
will be assessed accordingly.
Order No. 3 HSG (7-499) 10/17/77 § 75.316
Findings. Section 75.316 requires that each operator of a coal
mine shall file with MSHA and adopt an approved ventilation system
arid methane and dust control plan. Respondent violated section
75.316 because it failed to comply with paragraph 13 on page 3 of
its ventilation plan which requires that a crosscut shall be provided
at the face of each entry or room before the place is abandoned. 2/
The crosscuts in the No. 2 Unit at the face between Nos. 2 and 3 and
5 and 6 entries had been developed for a distance of approximately
40 feet without completing them. All equipment had been removed from
the No. 2 Unit in order to start development of a left panel.
The violation was serious. Respondent intended to return to the
No. 2 Unit within a period of about 2 months. The evidence showed
that respondent was not properly ventilating the abandoned unit during the interim period. The inspector had never found anything other
than a zero quantity of methane in the mine when he tested for methane
at a distance of 12 inches from the face or rib, or when an air sample
was taken in the returns or at the fan (Tr. 23-25). Nevertheless,
the inspector believed that failure to complete the crosscuts was
hazardous. He said that a buildup of methane could have occurred in
the "dead-ended" areas because respondent's mine is below the water
table and the No. 2 Unit is 2,500 feet from the intake air shaft (Tr.
57; 69-70).

2/

There are some technical aspects as to whether respondent had
actually abandoned the No. 2 Unit. Those matters are considered in
my decision in Docket No. HOPE 78-44 on pages 5 to 9 and need not
be reconsidered here. As explained in that decision, respondent
ha~ violated section 75.316 by failing to complete the crosscuts
as alleged in Order No. 3 HSG.

694

Respondent was negligent in failing to complete the crosscuts
because respondent is required to know the provisions of its ventilation plan and the mine foreman agreed with the inspector that the
crosscut should have been completed before equipment was moved from
the No. 2 Unit to the left panel (Tr. 62).

'

Assessment of Penalty. I find that the criterion of good faith
effort to achieve rapid compliance is not applicable in assessing
a penalty in this instance. The reason for that conclusion is that
inspectors normally base their evaluation of good faith abatement
on the question of whether respondent corrected the condition cited
in the notice of violation within the period of time given by the
inspector for abatement. In this instance, a withdrawal order was
issued after the equipment had been removed from the No. 2 Unit.
Under respondent's mining method, its equipment would normally have
been moved back to the No. 2 Unit and the crosscut would have been
completed before the hearing in the review proceeding was held, but
a major strike by UMWA occurred on December 6, 1977, and did not end
until March 26, 1978. Therefore, respondent had not abated the
violation at the time the hearing was held in January 1978, because
the strike was still in progress. If normal operations had been in
effect, the crosscuts wo~ld have been completed by approximately
December 14, 1977 (Tr. 84-85).
It has already been found that respondent is a large operator and
that assessment of penalties will not cause respondent to discontinue
in business. The violation of section 75.316 was serious because
respondent was not ventilating the No. 2 Unit properly at the time
the order was written. The inspector returned to the No. 2 Unit on
January 19, 1978, or about 6 days before the hearing was held, and
found that respondent had installed a line curtain, but the required
check curtains were still missing. Respondent's failure to ventilate
the No. 2 Unit properly increased the possibility of a dangerous
methane accumulation in the "dead-ended" crosscuts .between the time
that equipment was removed and the time that mining was reinstated in
the No • 2 Unit •
There was some merit for respondent's claim that it had not
actually abandoned the No. 2 Unit in the dictionary sense of the
word, as compared with the technical definition of "abandoned areas"
contained in 30 CFR 75.2(h). Therefore, in assessing a penalty for
the violation of section 75.316, I do not believe that a large amount
should be attributed to the criterion of negligence.
In view of the mitigating circumstances discussed above, I conclude that a penalty of $2,000 is warranted. The Assessment Office
based its proposed penalty of $10,000 on a waiver of the assessment
for.mula provided for in 30 CFR 100.3 and on giving an excessive
amount of weight to the fact that the.order was issued under the
unwarrantable failure provisions of the 1969 Act. The Assessment

695

Office did not have the benefit of the extensive testimony presented
by the parties in Docket No. HOPE 78-44. That testimony does not
show the magnitude of seriousness and the degree of negligence which
I think are necessary to justify assessment of a maximum penalty of
$10,000.
Exhibit 13 indicates that there have been 3f!prior violations of
section 75.316 at respondent's Meadow River No. 1 Mine. One violation occurred in 1974, 7 occurred in 1975, 17 occurred in 1976, and
9 had occurred in 1977 by June 14, 1977. The statistics show, therefore, that respondent is continuing to violate section 75.316 to an
increasing extent each year. In such circumstances, the penalty of
$2,000 will be increased by $500 to $2,500 because of respondent's
unfavorable history of previous violations.
Order No. 1 HSG (7-527) 10/26/77 § 75.200
Findings and Conclusions. Section 75.200 requires each operator
of a coal mine to prepare and file with MSHA a roof-control plan
applicable to the.conditions in his mine. After the plan has been
approved by MSHA, the operator is required to follow its provisions.
Respondent's roof-control plan requires that temporary supports be
installed on 5-foot maximum centers to within 5 feet of the ribs and
the face or the nearest permanent support. Tne plan also requires
that the temporary supports be installed within 1 hour after the completion of the mining cyle and prior to roof bolting (Tr. 104-105).
Respondent violated section 75.200 because the distance from the permanent supports to temporary supports was 8 feet (Exh. 7; Tr. 103).
The violation was serious for several reasons. The Meadow River
No. 1 Mine has hazardous roof conditions, especially in the No. 4 Unit
where the violation occurred. The longer that a roof is allowed to
remain in an unsupported condition, the more fragile and adverse it
will become. Several falls of rock 3 or 4 feet thick have occurred
in the No. 4 Unit. Additionally, with no supports in the No. 4 entry
of the No. 4 Unit, no miner could lawfully go inby the 8 feet of
unsupported rocif for the purpose of installing line curtains used for
controlling ventilation at the face of the No. 4 entry (Tr. 106; 110).
Respondent was negligent in permitting the violation to occur
because the hazardous condition had been reported in the preshift
examiner's record book. The section foreman on the day shift had
read the preshift report before going to the No. 4 Unit to work,
but he assigned other work to the men on his section without giving
priority to installation of the required temporary supports (Tr.
133-134; 1°72).
Assessment of Penalty. Although the violation was serious and
respondent was negligent in failing to install the required temporary supports, the facts show that several mitigating factors were

696

associated with the occurrence of the violation. Respondent's section foreman on the 4 p.m.-to-midnight shift on October 25, 1977,
had had temporary supports properly installed, but the continuousmining machine had become inoperable on his shift. A maint~nance
crew came to the No. 4 Unit and repaired the machine on the midnightto-8 a.m. shif~. After they had completed their repairs, they pulled
the machine away from the face, and in doing so, knocked down some
temporary supports. When the preshift examiner saw the timbers
lying on the mine floor, he posted a danger board outby the unsupported area and reported the existence of the unsupported roof to
the oncomiag section foreman for entry in the preshift book. Therefore, the unsupported roof existed for a period of from 4-1/2 to
5 hours before the temporary supports were replaced (Tr. 184).
Respondent correctly claimed that the preshift examiner could not
have been expected to replace the temporary supports which had been
knocked down by the maintenance crew. There was some merit to respondent's claim that the young men on the maintenance crew could not have
been expected to replace the temporary supports since they are not
trained in that type of work, but I cannot condone the maintenance
crew's failure to report to the mine foreman or some other responsible
person the fact that they had knocked down the supports and had not
replaced them.
The primary hazard which resulted from the failure to reset the
temporary supports immediately lay in the fact that respondent's roofcontrol plan requires the supports to be installed within 1 hour after
the coal is removed. The posting 'of a danger board by the preshift
examiner, while very helpful, did not assure that a miner would not
go inby the board and be injured or killed by a roof fall.
Even though there wer.e several mitigating factors which contributed to the occurrence of the violation, the fact remains that only
one area of unsupported roof is needed for a fatality to occur.
Therefore, I believe that a substantial penalty is required in order
that respondent will be encouraged to insist that maintenance crews
report any occurrence which might decrease safety to their superiors
so that corrective action may be taken immediately. For the foregoing reason, a penalty of $4,000 will be assessed for this violation of section 75.200. I believe the Assessment Office's proposed
penalty of $8,000 was excessive because of its undue emphasis on the
fact that the violation was cited in an order issued under the unwarrantable failure provisions of the 1969 Act. Additionally, the
Assessment Office did not have the extensive testimony showing the
mitigating factors discussed above when it proposed a penalty of
$8,000.
Exhibit 13 indicates that there have been 110 prior violations
of section 75.200 at respondent's Meadow River No. 1 Mine. Nine
violations occurred in 1974, 27 in 1975, 54 in 1976, and 20 had

697

occurred tn 1977 by June 15, 1977. Viol•tions of section 75.200 are
increasing to a substantial degree each year. I believe that the
criterion of history of previous violations is intended to act as a
deterrent for operators who do not appear to be making a sufficient
effort to reduce repetitious violations. Therefore, the penalty of
$4,000 will be increased by $2,000 to $6,QOO because of respondent's
extremely unfavorable history of previous violations.
Order No. 1 HSG (7-539) 10/27/77 § 75.400
Findings and Conclusions. Section 75.400 requires that coal
dust, including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustibles be cleaned up and not be permitted to accumulate in active workings or on electrical equipment.
Respondent violated section 75.400 because it had permitted two
different and distinct accumulations to occur. The first one was
located beneath the conveyor belt drive and extended 65 feet inby
under the belt conveyor. It ranged from 0 to 15 inches in depth.
The shallowest accumulation was at the belt drive and the accumulations had become sufficiently compacted in places to force the
bottom of the conveyor belt up off the rollers so that the bottom
belt moved across the accumulations. About 50 percent of the coal
was very wet, but the wet coal was located at the belt drive and
the belt was dragging at the place where the coal was dry (Tr. 190;
218-219). The second accumulation was along and under the No. 4
crossbelt from the dumping point inby for a distance of 25 feet to
the tail pulley of the No. 4 crossbel t. The accumulation was from
8 to 10 feet wide and from 0 to 7 inches in depth. Spillage at the
dumping point caused the bottom belt to carry the coal back so as to
be ground between the tail pulley and the belt. The majority of the
second accumulation was made up of float coal dust and was all dry
(Tr. 193-194; 218).
The accumulations were serious because they exposed the miners
to the possibility of a mine fire as there was a source of ignition
in the form of friction of the belt running in dry coal dust and
there were electrical wires carrying from 440 to 550 volts and some
of the wires were not suspended on insulators. If the float coal
dust had been thrown into suspension at the time of an ignition, it
would have exposed the miners to the possibility of an explosion as
the float coal dust was very dry. The loose coal and coal dust accumulations were located within 50 to 75 feet of each other (Tr. 194195; 214-215).
In my decision in Docket No. HOPE 78-73 (pp. 21-24), I explained
in detail why I believed that MSHA had proven a violation of section
75.400 under the criteria set forth by the former Board of Mine
Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977). I do not
think it is necessary for me to repeat in this decision the extensive

698

discussion which is available in that decision. I upheld the inspector's citation of a violation of section 75.400 in the prior decision
primarily on the inspector's belief that respondent knew, or should
have known, that the accumulations existed because the loose coal and
coal dust had been permitted to accumulate for 2 or 3 weeks. He based
his conclusion as to the length of time that the accumulations had
been allowed to form on the fact that the coal dust had become very
compacted to the point that it caused the belt to be pushed up off
the rollers so as to ride on the coal accumulation. He also based
his opinion as to the length of time of accrual of the accumulation
on the fact that a large amount of rust had formed around some of the
rollers (Tr. 192; 202-203; 248). If the loose coal accumulation had
been cleaned up during a recent period prior to the inspection, the
rust would, of course, have been removed along with the loose coal.
Respondent was negligent in permitting the violation to occur
because its belt examiner checked the belts daily and should have made
certain that the accumulations were cleaned up. One of the primary
reasons for the belt cleaners' failure to remove the loose coal and
coal dust from under the belt was attributable to the fact that when
the belt conveyor was installed, its frame was placed on a 2-inch
support, instead of a preferable 6-to-8-inch support, so that it
was difficult to clean under the belt. In fact, it was dangerous to
clean under the belt drive while it was moving and the coal was
removed after being cited in the inspector's order by washing the
accumulation away with a water hose (Tr. 213; 237).
Assessment of Penalty. The inspector stated that he issued an
unwarrantable failure order instead of an imminent danger order because
a part of one of the accumulations was so wet that water could have
been squeezed from the coal (Tr. 215; 218). Coal with that much water
in it would be noncombustible. The second accumulation, however, was
dry and consisted largely of float coal dust. The accumulations were
not in suspension and no methane existed along the beltline, but there
were high voltage wires in the area and some were not on insulators.
Respondent had several kinds of firefighting equipment in the vicinity
of the accumulations, including a fire extinguisher, a water hose, and
a water line. Additionally, there were water sprays at the belt
feeder. Of course, no type of firefighting equipment can prevent an
explosion of float coal dust if the dust should bec_ome suspended at a
time when an ignition occurs (Tr. 208; 222-223; 228). The fact that
the belt was running in dry coal and the existence of the wires without insulators support a conclusion that the violation was serious.
It should be borne in mind that the wires without insulators had no
bare places on them which would have been a serious ignition hazard.
In addition to the negligence involved in respondent's having
constructed the belt in such a manner as to make it difficult to clean
under the belt, respondent was using only three miners to clean along
nine sections of belt conveyor. The assistant mine superintendent did

699

not realize, until the inspector's order was written, that respondent
was using only three belt cleaners (Tr. 198; 203). Respondent's
safety director stated that additional workers were assigned to cleaning along the belt if any special problems arose (Tr. 226-227; 244247). Regardless of respondent's intention about use of additional
miners to clean along the belt, the fact remains that the accumulations occurred. Consequently, either the three cleaners were not
able to keep up with the rate of spillage from the belts, or respondent had failed to assign additional men to assist in belt cleaning
at the time the order was written.
When all the facts surrounding the violation are considered, I
believe that a penalty of $2,500 is warranted. As indicated, supra,
under the heading of "Good Faith Effort to Achieve Rapid Compliance",
the penalty of $2,500 will be reduced by 10 percent, or $250, to.
$2,250 because of respondent's unusually rapid achievement of
compliance.
I believe that the penalty of $7,500 proposed by the Assessment
Office was based on an excessive reliance on the fact that the order
was issued under the unwarrantable failure provisions of the Act.
The coal accumulations were not serious enough and respondent's
negligence was not great enough to justify assessment of a penalty
of $7,500.
Exhibit 13 indicates that there have been 157 prior violations of
section 75.400 at respondent's Meadow River No. 1 Mine. One violation occurred in 1974, 33 in 1975, 77 in 1976, and 46 had occurred in
1977 by June 15, 1977. The statistics here again show an alarming
annual increase in the number of violations of section 75.400. Therefore, the penalty of $2,250 will be increased by $2,500 to $4,750
because of respondent's extremely unfavorable history of previous
violations.
Summary of Assessments and Conclusions
(1) On the basis of the evidence of record in the consolidated
proceeding in Docket Nos. HOPE 78-44, HOPE 78-71, and HOPE 78-73,
respondent is assessed the following civil penalties:
Order No. 3 HSG (7-499) 10/17/77 § 75.316

.......... $ 2,500.00

Order No. 1 HSG (7-527) 10/26/77 § 75.200

6,000.00

Order No. 1 HSG (7-539) 10/27/77 § 75.400

4,750.00

Total Assessments in This Severed Proceeding •••• $13,250.00
(2) Respondent was the operator of the Meadow River No. 1 Mine
at all pertinent times and as such is subject to the provisions of
the Act and to the health and safety standards promulgated thereunder.

700

(3) The orders listed in paragraph (1) above should be severed
from the proceeding in Docket No. HOPE 78-679-P so that the remaining eight violations alleged by MSHA's Petition for Assessment of
Civil Penalty may be disposed of on the basis of a hearing to be
scheduled in the near future.
WHEREFORE, it is ordered:
(A) Sewell Coal Company is assessed civil penalties totaling
$13,250.00 which it shall pay within 30 days from the date of this
decision.
(B) The orders listed in paragraph (1) above are severed from
further consideration with respect to MSHA's Petition for Assessment
of Civil Penalty filed in Docket No. HOPE 78-679-P.

fJt:ckvJ-rf( C. ~tifh;-

Richard C. Steffey P~
Administrative Law Judge
Distribution:

John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor> 4015 Wilson Boulevard, Arlington,
VA 22203
David F. Barbour, Trial Attorney in Docket No. HOPE 78-679-P,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Gary W. Callahan, Esq., Attorney for Sewell Coal Company,
Lebanon, VA 24266 (Certified Mail)

70i

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

June 28, 1979

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

Civil Penalty Proceeding
Docket No. DENV 79-60-PM
A.C. No. 21-00620-05001
Sand & Gravel Mine

STANDARD BUILDING MATERIAL CO.,
Respondent

DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Roger N. Knutson, Esq., Grannis & Grannis,
St. Paul, Minnesota, for Respondent.

Be.fore:

Judge Moore

The above case came on for hearing in Minneapolis, Minnesota, on
June 7, 1979. The evidence shows that while the company was substantial, employing 45 to 80 workers, only eight or nine usually worked
in.the mining part of the company's operation. The inspector testified that all of the five citations involved in this case were abated
promptly and in good faith. No prior history of violations of the
1977 Act was introduced and I will assume in the absence of evidence
to the contrary that no penalty assesBed by me would affect Respondent 1 s ability to continue in business.
Citation No. 289403 charges that a berm was not provided on the
outer edge of the elevated sand pile where the front-end loader was
moving materials away from the discharge conveyor. Although it was
not mentioned in the testimony, there is a notation on the bottom of
Government Exhibit No. 1 (the citation) stating 11 --was working to put
berms." I cannot read the first word of the notation, but the testimony indicates that the sand and gravel operation had. just been working for 2-1/2 weeks after an all-winter shut down and that the
front-end loader had just been sent on to the sand pile to move the
higher portions of the sand away from the discharge conveyor mechanism.
He was moving sand off of the edge of the pile and building berms, but
at the time the inspector observed the operation there were areas
where there were no berms and where the front-end loader was backing.

702

The evidence adduced did not present a clear picture of the operation being conducted. I am satisified that there were no berms in
a particular hazardous area at the time the inspector issued the
citation, but what was not made clear was exactly when, in the type
of operation being conducted, berms should be constructed. There
was testimony that there were berms in some areas and wort! down or
weathered berms in others and that b~rms ~re constantly changing.
There was uncontradicted evidence that the berms had to be made of
the same material as the stockpile in order to avoid contaminating
the pile and obviously you would have to construct some kind of
flat area before you can put berms around it. It may be that the
sequence followed by the front-end loader operator was erroneous
and that he should have spent more of his effort in building berms
rather than flattening out any area to put the berms around. But I
am not sufficiently convinced of that to find that as a fact. I
therefore find that MSHA has failed to carry its burden of proof
with respect to this violation and the citati~n is accordingly
VACATED. ]:_/
Citation No. 289404 alleges a guard was not provided on the
drive shaft on the pan feeder. Inasmuch as the standard 30 CFR
56.14-1 only requires a guard where a drive shaft of this type
might cause injury, the inspector stated that the existence of a
proper stop cord would have so minimized the possibility of injury
as to eliminate the violation. This same inspector had previously approved the emergency stop cord at this particular location.
The inspector was perfectly candid about the fact that he simply
changed his mind about the safety of the arrangement. At the time
of the hearing, he did not think the stop cord was close enough
to the area where the miner might get caught in the drive shaft.
In my opinion, an inspector has a right to change his mind concerning a hazardous situation. But, in the absence of imminent
danger, I do not think MSHA has a right to issue a citation for
which a penalty must be sought without first informing the respondent or operator that there has been a change of opinion. This
is not a matter of estoppel. The Government is not estopped from
changing its mind and forcing a new policy, but issuing a citation
1/ In approximately 7 years, of hearing cases under both the 1969
and 1977 Mine Acts, I have never heard a case involving the lack of
berms at a surface coal mine or in the surface area of any underground coal mine even though the surface coal mine standard is
identical to the metal/nonmetal standard. · And in all of the cases
where modification of the berm standard was sought by a coal mine
operator, modification was granted so that berms were not required
as long as certain conditions were met. These modifications
were all with the consent of MESA, the predecessor of MSHA. With
one exception, however, every noncoal mine case that I have heard
has involved an alleged violation of the berm standard.

703

and seeking a penalty for a condition which the Government has
caused by its advice approaches harassment and that is not what
the Act was designed to do. The citation is VACATED.
Citation No. 289405 alleges that the compressed gas cylinders
were standing in the shop area unsecured in violation of 30 CFR
56.16-5. There is no question but what the inspector found the
acetylene and oxygen cylinders standing unsecured in an area where
they were normally stored and where securing devices were readily
available. I can readily see how it was a clear violation in his
eyes. The fact of the matter, however, is Mr. Leaf, the watch
plant operator foreman, was responsible for securing oxygen and
acetylene tanks when they were delivered by a private seller. The
tanks were delivered to the appropriate place by the seller and in
ordinary circumstances Mr. Leaf would have secured them immediately.
In this case, however, Mr. Leaf was a part of the inspection team
at the time of the delivery and was with the inspector. As stated
before, there are only a few miners in this operation and as soon
as·the inspection party reached the area of the unsecured cylinders,
they were secured by Mr. Leaf. The testimony did not disclose
whether or not the inspector was informed of the circumstances,
but in my opinion, i"f he had known all the facts and still issued
the citation, he would have been acting in an arbitrary manner.
The citation is VACATED.
Citation No. 289406 alleges "the handrailing on the stairway to
the grizzly does not project 3 feet above the landing for safe
access." The standard alleged to 'have been violated, 30 CFR 56.ll-6,
states: Mandatory. Fixed ladders shall project at least 3 feet above
landings, or substantial handholds shall be provided above the landings." Inasmuch as the standard requires that the ladder itself
project above the landing or that handholds be provided, the citation which charges that the handrailing did not project 3 feet above
the landing does not allege a violation of the standard. I think
the standard was intended for vertical ladders where, unless they
project above the landing surface, it is very difficult to get off
at the landing surface, but it is even more difficult to get back
on the ladder going down. The ladder in this case was more like
a stairway and it did have a handrailing which could be held on to
when the climber was on the top rung of the steps. From the best
description I could get after lengthy questions by both the attorneys
and me, I conclude that a violation did not exist when the citation
was issued. The citation is accordingly VACATED.
"'
Citation No. 289407 alleges that haul truck No. 208 was
backing under the bins and was not provided with an audible reverse
signal alarm. The inspector noticed the truck backing into the
area numerous times while he was at the mine-and stated there was

704

no helper guiding the driver and that there was no audible backup
alarm. It may well have been, as suggested by Respondent, that
the backup alarm went out immediately before the inspection. And
I accept the testimony that the drivers were required and instructed to report malfunctions such as a nonworking backup alarm.
But when the inspector observed that the backup alarm was not
working and issued a citation, it was somebody's duty to inquire
as to how long that backup alarm had been malfunctioning. In my
opinion, it was the duty of the operator to obtain that evidence
if be intended to rely on the fact that the alarm had just broken
prior to the inspection. The Respondent did establish that it
could have been that the malfunction occurred just prior to the
inspection, but he had no positive evidence to offer that it,
in fact, did occur at that time. In the absence of such evidence,
I think the inspector was perfectly justified in issuing the citation.
Also, in the absence of such evidence, I think I can assume negligence because unless it occurred just prior to the inspection,
Respondent should have known of the condition of the backup alarm.
The gravity is moderate and I consider that a penalty of $120 is
appropriate.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within
30 days of the entry of this decision, a civil penalty in the
amount of $120.

·~ef0~(~.
Charles C. Moore, Jr.
Administrative Law Judge
Issued:

June 28, 1979

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, Chicago, Il 60604
(Certified Mail)
Roger N. Knutson, Esq., Grannis & Grannis, 403 Northwestern
National Bank Building, 161 North Concord Street, South
St. Paul, MN 55075 (Certified Mail)
Administrative for Metal and Non-Metal Mine Safety and Health,
U.S. Department of Labor
S.tandard Distribution

705

FEDERAL rVUNE SAFETY Ai~O Mr::J.'tL"'{i;,z REVUEW co:Jrn~~$$lON
OFFICE OF ADMINISTRATIVO:: LAW JUDGES
4015 WILSON E>ouu:VAf~D
ARLINGION, VIRG tr~IA 22203

JUN 2 9 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
~ocket No. DENV 78-537-P
A/O No. 41-01900-02007 V

v.
TEXAS UTILITIES GENERATING CO.,
Respondent

Docket No. DENV 78-82-P
A/O No. 41-01900-02009 F
Monticello Fuel Facilities Strip
Mine
Docket No. DENV 79-80-P
A/O No. 41-02632-02004 V
Docket No. DENV 79-81-r
A/O No. 41-02632-03001
Martin Lake Strip Mine

DECISION
Appearances:

Eloise Vellucci, Esq., and Douglas White, Esq., U.S.
Department of Labor, for Petitioner;
Richard L. Adams, Esq., Worsham, Forsythe & Sampels,
for Respondent.

Before:

judge Forrest E. Stewart
PROCEDURAL BACKGROUND

The above-captioned cases are civil penalty proceedings brought
pursuant either to section 109 of the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 819 (1970), or to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a)
(1977).

On August 9, 1978, Petitioner filed with the Federal Mine Safety
and Health Review Commission a petition for assessment of a ci·.ril
penalty for the violation included under Docket No. DENV 78-153-P.
Respondent filed its answer to this petition on·January 3, 1979.
Petitions for assessment of civil penalty in Docket Nos. DENV

706

78-80-P, DENV 78-81-P and DENV 78-82-P, were filed on November 22,
1978. Respondent's answers were filed on January 2, 1979. The hearing in thes~ matters was held on February 21, 1979, in Dallas, Texas.
Posthearing briefs were filed by the parties on April 9, 1979.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
At the hearing, the parties stipulated to the following:
(a) The computer printouts of Respondent's prior violation history at the Martin Lake Strip Mine and the Monticello Fuel Facilities
Strip Mine offered in evidence at the hearing were authentic and
admissible.
(b)

Respondent's company had produced 16,653,961 tons of coal in

1978.
(c) Respondent produced 3,072,199 tons of coal in 1978 at its
Martin Lake Strip Mine.
(d) Respondent produced 6,278,289 tons of coal in 1978 at its
Monticello Fuel Facilities Strip Mine.
There is no indication on the record that any penalty assessed in
these proceedings would have an adverse effect on Respondent's ability
to remain in business.
DOCKET NO. DENV 78-537-P
A single violation was alleged within Docket No. DENV 78-537-P.
On June 22, 1977, Inspector Maloney cited a violation of 30 CFR
77.410 at Respondent's Monticello Fuel Facility Strip Mine. At the
hearing, Respondent admitted the existence of the violation, contesting only the amount of the proposed penalty.
Inspector Maloney discovered that a troubleshooter's truck was
not equipped with the required operative automatic backup alarm. The
truck was equipped with a toggle switch which had to be tripped manually whenever the vehicle was placed in reverse. This warning system
was not automatic and at the time, it was inoperative.
The inspector did not know how long the toggle switch had been in
use or whether the condition was known to supervisory personnel. He
was of the opinion that a supervisor should examine the cab of the
truck at least once a shift. Albert Schwarzer, one of Respondent's
fuel superintendents, testified that the operator of each vehicle
had been designated as the party responsible for inspection of his
vehicle during each shift. He asserted that there was not enough
time for supervisory personnel to inspect daily each of the
100 vehicles used at the mine on a pr~shift ba~is.

707

From zero to seven employees usually work in the area. Visibility
behind the truck was obstructed, but the area was not noisy.
An automatic backup alarm was installed on the truck within an
hour.
DOCKET NO~ DENV 78-80-P
A single violation was alleged within Docket No. DENV 78-80-P.
Inspector Maloney issued Notice of Violation No. 3-LGM on February 15,
1978, at Respondent's Martin Lake Strip Mine. He cited a violation
of 30 CFR 77.1401 after observing that a crane which was not provided
with overspeed and overwind devides was being used to hoist personnel.
Two men were suspended 35 to 40 feet above the ground in a cage. This
condition was in violation of secti6n 77.1401.
The condition or practice was known to mine management. Inspector Maloney had informed them of the requirement in October of the
previous year. A member of mine management admitted knowledge of the
crane's use at the time the notice was issued.
It is improbable that the condition would result in an accident.
The capacity of the crane was 200 tons. The inspector testified that
it was safe to use the crane to hoist men and that a modification
would have been granted Respondent if it had applied for one.
The violation was abated by the posting o.f signs prohibiting use
of the machine for hoisting men.
DOCKET NO. DENV 79-81-P
Nine violations were alleged within Docket No. DENV 79-81-P.
These alleged violations are discussed below in the order in which
the corresponding citations were issued.
1.

Citation No. 00391705

On March 21, 1978, Inspector Maloney issued 104(a) Citation No.
003-91705,citing a violation of section 103(f) of the Act. Section
103(f) reads in pertinent part as follows:
Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized
by his miners shall be given an opportunity to accompany
the Secretary or his authorized representative during the
physical inspection of any coal or other mine made pursuant
to the provisions of subsection (a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine. Where there is no

708

authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number
of min~rs concerning matters-of health ~nd safety in such
mine.
Inspector Maloney,.his immediate supervisor, and a trainee
inspector arrived at the mine office at approximately 7:30 a.m. The
shift change at Martin Lake Strip Mine occurs at 8 a.m. Just prior
to the shift change,· the inspectors chose Thori1as Hopkins, a union
steward on the day shift, to accompany them during the course of the
inspection as the authorized miner representative. Inspector Maloney
testified that permission for Mr. Hopkins to accompany the inspectors
was given by an assistant maintenance foreman on the midnight shift.
At approximately 8:15 a.m., Mr. Hopkins was approached by his
immediate supervisor, Fred Overton, who ordered Mr. Hopkins back to
work. Thereafter, the opportunity for Mr. Hopkins to accompany the
inspectors was also refused by Mr. Reedy, Respondent's fuel superintendent. Mr. Hopkins was permitted to continue with the party of
inspectors only after a citation was issued. The failure to give
Mr. Hopkins an opportunity to accompany the inspectors was in violation of section 103(f) of the Act.
The inspector did not find that the violation was significant and
substantial and there is no indication that it could have led to an
accident or injury. Immediately after the citation was issued, mine
management pennitted Mr. Hopkins to accompany the inspectors.
2.

Citation No. 00391708

On March 21, 1978, Inspector Maloney issued 104(a) Citation No.
00391708, citing a violation of 30 CFR 77.208(e). He observed three
oxygen cylinders and four acetylene cylinders stored in two racks at
the dragline erection site. The valves on these cylinders were not
provided with protective covers. The inspector was of the opinion
that the violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety
hazard. Because the cylinders could easily be seen, the condition
should have been known to the operator. The condition was corrected
10 minutes after the citation was issued.

At the hearing, the parties proposed a settlement of this case
for $150, the amount originally proposed by MSHA's Office of Assessments. The Administrative Law Judge approved the settlement at that
time, and this approval is affirmed here.

3.

Citation No. 00391709

On March 21, 1978, Inspector Maloney issued 104(a) Citation No.
00391709, citing a violation of 30 CFR 77.208(a). He observed that

709

a cable sheave which was stored at the dragline erection site was not
blocked to prevent it from being accidentally tipped over. In addition, the gantry sheave was resting on a center shaft approximately
20 inches in diameter and the bottom circumference of thesheave was
approximately 10 inches above the ground. The inspector found that
this condition was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety
hazard. The condition was abated 25 minutes after the citation was
issued.
At the hearing, the parties proposed a settlement of this case
for $210, the amount assessed by MSHA's Office of Assessments. The
Administrative Law Judge approved the settlement at that time. This
approval is affirmed here.
4.

Citation No. 00391711

On March 21, 1978, Inspector Maloney issued section 104(a) Citation No~ 00391711, citing a violation of 30 CFR 7j.408. Section
77.408 requires that welding operations shall be shielded. At the
dragline construction site, the inspector observed three welding
operations which did not have the required shielding. The operator
quickly abated this condition by placing portable canvas shields
around each welding operation.

The -operator was negligent in its failure to shield the welding
operations. The failure to shield was visually obvious. The inspector was of the opinion that the welding had been ongoing at least
from the beginning of the shift.
The hazard presented by this condition was flashburn. If such
an accident were to occur,· the probable result would be lost workdays
or restricted duty.
There were approximately eight people in the area. Two of the
welders were within 20 feet of each other. Leroy Churchill, Respondent's technical engineer who was in charge of the welding operations at issue, testified that the welders might operate as close as
4 or 5 feet to one another. Each of the welders was experienced and
each wore a personal shield. Although the normal path of the construction workers was approximately 100 to 150 away, the area was not
fenced off to prevent someone from approaching. Given the nature of
the hazard and the number of people subjected to it, the occurrence
of an accident was probable,,
The operator made a good faith effort to abate the condition
once the citation was issued. Portable shields were immediately
placed around the welding operators.

710

5.

Citation No. 00391712

On Mar~h 21, 1978, lnspecto~Maloney isiued 104(a) ciitatioc No.
00391712, citing a violation of 30 CFR 77.208(d). The inspector
observed that an oxygen cylinder and an acetylene cylinder in a tool
room area for the dragline erection site were not secuted in a safi
manner. A rope had been tied around the cylinders and their wooden
frame supports, but it had slipped down to within 6 inches of the
base of the cylinder~. The inspector found i~ improbable that an
accident would occur. He remained of the opinion that the condition
w~s of such a nature ns could siznificantly and substantially contribute to the cause and effect of a mine safety hazard. However,
he also found that the condition either could not have been known
or predicted, or occurred due to circumstances beyond the operator's
control. The condition was abated 10 minutes after the citation
was issued.
At the hearing, the parties proposed a settlement of this case
for $122., the amount assessed by MSHA's Office of Assessments. The
settlement was approved by the Administrative Law Judge at that time.
This approval is affirmed here.
6.

Citation Nos. 391719 and 391720

Inspector Maloney issued fo4(a) Citation Nos. 391719 and 391720 on
March 23, .1978, after observing a badly burned front-end loader which
was parked on the access road to the main office. Upon investigation,
it was determined that the vehicle had caught fire and burned for
1-1/2 to 2 hours. Thereafter, it had been removed from the accident
site to the mine office. The operator of the vehicle suffered second
degree burns and a broken nose in the incident. Respondent did not
report the fire to MSHA officials.
An accident is defined in 30 CFR 50.2(h) as being "an unplanned
mine fire not extinguished within 30 minutes of discovery." Because
this fire may be characterized as an accident, the failure to report
it to MSHA was in violation of section 50.10 and removal of the
vehicle from the site of the fire was in viol~tion of section 50.12.
Mine management was unaware of the requirement to notify MSHA
immediately of the accident. It is improbable that these violations of
50.• 12 and 50.10 would result in an accident. The injury to the
employee was reported promptly, and an etfort had been made to
preserve the equipment to help determine the cause of the fire.

7.

Citation No. 00391724

Inspector Maloney issued Citation No. 00391724 on March 27~
1978, citing a violation of 30 CFR 77.1605(b). · Section 77.1605(b)

711_

requires that all trucks be equipped with parking brakes. The
inspector observed an Ardco "Kanda" vehicle with an inoperative
parking brake. This vehicle had four-wheel drive and five seats,
a~ well as a bed used to transport tools, supplies and other materials. It may be characterized as a truck within the meaning of
section 77.1605(b). The absence of an operative parking brake on
the Kanda vehicle was in violation of that section.
The inspector did not know if the employees who were using the
vehicle knew that the parking brake was inoperative, and there is no
indication that mine management was aware of the fact.
At the time the citation was issued, the vehicle was parked on
level ground and it was unoccupi~d. It had been left in gear to prevent .it from rolling. The inspector testified that there was no real
danger unless the vehicle was left out of gear on an incline. Repair
efforts were undertaken immediately and the condition was corrected
within the time set by the inspector for abatement.
8.

Citation No. 00391726

On March 28, 1978, Inspector Maloney issued 104(a) Citation No.
00391726, citing a violation of 30 CFR 77.404(a). He observed. that
the passenger-side door on one of Respondent's boom trucks was badly
bent and would not latch. A nylon rope and rubber strap were used
.to tie the door shut. The inspector found that the condition was of
such a nature as could significantly and substantially contribute to
the cause and effect of a mine safety hazard. The condition could
have interferred with emergency escape from the vehicle. Alternatively, the door could open unexpectedly. The defect should have
been known to the operator because it was visually obvious. A
replacement was found in a local town .and the condition was corrected within the time set for abatement.

At the hearing, the parties proposed a settlement of the case
for $305, the amount assessed by MSHA's Office of Assessments. The
settlement was approved at that time by the Administrative Law Judge
and the approval is affirmed here •

.

DOCKET NO. DENV 78-82-P
The single violation alleged within Docket No. DENV 78-82-P
arose out of an incident which occurred at Respondent's Monticello
Fuel Facilities Strip Mine on the morning of December 31, 1977.
A fatal inJury was sustained by one of Respondent's employees after
he fell into a coal hopper.
The hopper in question was being used as a dump site for bottom
dump trucks. There were two openings in the hopper about L~-1/2 feet
wide. Tracks had been placed across the opening to allow trucks to

712

drive over the hopper and dump coal into it. During the shift on
which the· accident occurred, trucks had been dumping coal into the
northernmost opening. A bulldozer was being used to push a stockpiled
coal into the second opening. At the time of the accident, the .
northernmost of these two openings was covered by a large coal hauling truck. The building which housed the dump station operators was
adjacent to this side of" the dump site
On the morning of December 31, 1977, Charles White, a pumper
operator, was working in the control room at the coal crusher at the
Monticello Fuel Facilities Strip Mine of Respondent. At approximately
4 or 5 o'clock that morning, one of Respondent's foremen called the
control room and asked that a certain coal hauling truck be stopped
and the operator told to bring the truck to the shop for maintenance.
White failed to stop the coal hauler before it reached the dump site.
He then apparently walked around behind the control room building to
meet the hauler. He entered the dump site, walked up beside the left
front wheel of the coal hauling truck and began to speak to the
driver of the truck. White then took a step backward and fell into
the open coal dump.
Notice of Violation No. 1-JDf:, January 1, 1978, was issued in
the course of the ensuing accident investigation. The inspector
cited a violation of 30 CFR 77. 204 and alleged. that "openings in
the haulage truck dumping facilities'*** were not protected by
railings, barriers, covers, or other protective devices."
Section 77.204, in pertinent part, provides the following:
"Openings in surface installations through which men or material
may fall shall be protected by railings, barriers, covers or other
protective devices."
There were no permanent protective or warning devices in the
area other than a low concrete wall which ran between the hopper
and the control room building, and which extended 3 feet heyond
each side of the hopper, and two unilluminated signs located on
each end of the wall which stated "Danger Open Pit". A barrier
was pl~ced across the roadway when the hopper was n9t being used.
This comprised approximately 15 percent of the time during which
the mine was operating. The barrier was not in place when the
accident occurred.
The absence of protection over or around the opening at the
time of the accident was in violation of section 77.204.
The operator evinced a small degree of negligence in its failure
to protect the hopper opening. A barrier was erected when the site
was not in use. It was in fact, the pumper's responsibililty to
erect this barrier. In addition, signs had been posted warning
against the danger presented by the open hopper. Respondent's safety

713

manual prohibits entry into the area when the dump site is in use.
Two of Respondent's witnesses testified that they had never seen a
person in the dump site area other than for maintenance purposes.
Finally, 22 inspections had been conducted by MSHA at Respondent's
Monticello Mine prior to the accident. The condition in question was
not found by MSHA inspectors to be a violation in the course of any
of these inspections. Even so, the hazard presented by the open pit
was obvious and sho.uld have been known to the operator.
·
·
Respondent demonstrated good faith in rapidly complying with section 77.204 and indicates its continued good faith in attempting to
find the most workable and affective means of protection.
ASSESSMENTS
In consideration of the findings of fact and conclusions of
law in this decision based on stipulations and evidence of record,
the following assessments are appropriate:
DOCKET NO. DENV 78-537~P
Notice of Violation No. 1-LGM (June 22, 1977) $500
DOCKET NO. DENV 79-80-P
Notice of Violation No. 3-LGM (February 15, 1978) $300
DOCKET NO. DENV 79-81-P
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

$ 200
150
210
195
122
130
130
200
305

00391705
00381708
00391709
00391711
00391712
00391719
00391720
00391724
00391726

DOCKET NO. DENV 79-82-P
Notice of Violation No. 1-JDC (January 1, 1978) $800
All proposed findings of fact and conclusions of law inconsistent
with this decision are rejected.

714

ORDER
It is ORDERED that the settlement negotiated between Petitioner
and Respondent with respect to Citation Nos. 00391708 ·(March 21,
1978), 00391709 (March 21, 1978), 00391712 (March 21, 1978), and
00391726 (March 28, 1978), is hereby APPROVED.
It is further ORDERED that the Respondent pay the sum of $3,242
within 30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge

Distribution:
Eloise Vellucci, Esq., and Douglas White, Esq., Office of the
Regional Solicitor, U.S. Department of. Labor, 555 Griffin
Square Building, Suite 501, Griffin and Young Streets, Dallas,
TX 75202 (Certified Mail)
Richard L. Adams, Esq., Worsham, Forsythe & Sampels, 2500-2001
Bryan Tower, Dallas, TX 75201 (Certified Mail)

715

FEDERAL MINE SAFETY AND HEALTH REVIEW COl\liMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRG !NIA 22203

June 29·, 1979

PEABODY COAL COMPANY,
Applicant

Application for Review

v.

Docket No.· DENV 78-557
Order No. 390240; 8-1-78

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

Seneca Surface Mine

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

Civil Penalty Proceeding
Docket No. DENV 79-286-P
A/O No. 05-003.04-03001
Seneca Strip Mine

SENECA COALS LIMITED,
Respondent
DECISION
Appearances:

Thomas F. Linn, Esq., Peabody Coal Co., Denver,
Colorado, for Applicant/Respondent;
Robert A. Cohen Esq., Office of the Solicitor, U.S.
Department of Labor, for Respondent/Petitioner.

Before:

Judge Chares c. Moore, Jr.

The two above-captioned cases involve, one order of withdrawal
and a review thereof, plus a penalty case involving the same order.
The fact that the names of the operator's of the mines in the two
cases are different is a technicality which is unimportant to this
decision. It was agreed at the hearing that Peabody Coal Company is
the operator and is therefore both the applicant in the review case
and the respondent in the penalty case.
On August 1, 1978, Inspector Padgett issued order of withdrawal
No. 390240 because a bulldozer was observed building a road in the
middle of a blasting area on the high wall within 3 to 5 feet of
charged holes. The order was issued under 107(a) of the Act as an
imminent danger, but also charged a violation of 30 CFR 77.1303(g).
The .inspector later modified his order at the instructions of his
superior to state that the blasting holes were, "loaded holes" rather
than "charged holes" as he had stated :ln the original order.

716

Government's Exhibit No. 2 is a sketch of the area involved in
the violation. The exhibit shows the blasting pattern and indicates
each hole that was included in that pattern as well as which holes
were completely packed with explosives, which holes had booster type
primers stored near them and which had merely been drilled but not
further prepared for blasting. The exhibit shows and the testimony
supports the fact that the bulldozer operator did build a road between
rows of holes and that there were nine loaded holes on his right-hand
side and three loaded holes on his left-hand side. At this point in
this decision, I am using the term "loaded hole" to describe a hole
in which detonating cord (Primacord) has been secured to a booster
primer and lowered to the bottom of the hole, ammonium nitrate slurry
or ANFO has been added on top of the primer, the hole has been tamped
and a short length of the primaccird is sticking out of the top of the
hole.
In view of the fact that the columns of holes where 25 feet apart
and the bulldozer blade was approximately 14 feet across, if the dozer
operator stayed exactly in the middle, his blade would have been
within 5-1/2 feet of the loaded holes on each side of the blade. When
the order was issued, the bulldozer operator was backing between the
loaded holes towards 2 cases of primacord that he had not noticed when
he came into the area but boxes .which he might or might have not seen
if he had continued to back out between the loaded blasting holes.
The question is whether or not this situation constituted.an imminent
danger and whether or not it involved a violation of 30 CFR 77.1303(g).
The regulation alleged to have been violated states: "Areas in
which charged holes are awaiting firing shall be guarded, or barricaded and posted, or flagged against unauthorized entry." While there
is a dispute about whether holes which have been loaded with explosives but not fitted with a detonating device are charged holes
awaiting firing, there's no question hut that this particular area
was posted and flagged againGt unauthorized entry. The inspector and
the other witnesses so testified. The posting against unauthorized
entry, regardless of whether an unauthorized vehicle actually enters,
prohibits the finding of a violation of this section. The section
requires posting and the area was posted. It was the inspector's
position that a violation occurred because the bulldozer operator
was unauthorized to enter the area, but he was in fact clearly authorized and ordered to enter the area by an assistant supervisor at
the mine. Whether he should have been authorized is another question
but there is no doubt but that he was in fact authorized.
I am furthermore convinced that a charged hole awaiting firing is
a hole which has not only been loaded with explosives but is also
equipped with some sort of firing device, meaning either a blasting
cap or a similar device with a time delay mechanism contained therein.
This view is supported by the recommended decision of Judge Switzer
promulgated on November 16, 1977, involving proposed amendments to

717

rules for metal and nonmetal.mining encompassed in 30 CFR 55, 56, and
57 • . It is also supported by the memorandum of September 9, 1974, from
the Assistant Administrator of Coal Mine Health and Safety which. contains the following paragraph: "For the present, we will define a
"loaded hole" as one that contains explosives or blasting agents with
a primer and that it does not become a "charged hole" until a detonator is introduced into the system." (See p. 2 of Petitioner's
Exhibit No. 1). That same exhibit states that public hearings were
scheduled in November 1974, for the purpose of amending 30 CFR 77.1300
to include a definition of "charged hole" to mean any hole containing
explosives or blasting agents with a primer. If the rule had been
promulgated, as proposed, it would be clear that MSHA was correct and
that a hole with everything but the detonator could be considered a
charged hole. The rule was not amended, however.
MSHA did place in its inspector's manual published March 9, 1978,
(Govt. Exh. 3) on page 321, the following sentence: "Holes containing
explosives or blasting agents, tamped and ready for firing are defined
as charged holes." Obviously inspector Padgett was following the
manual when he deemed the holes as charged, and insofar as MSHA is
concerned he was correct in his decision. But MSHA cannot change the
law by adding words to its manual. 1/ It had the opportunity to
change the code of Federal regulations and did not do so. I find the
holes were not "charged" and I think it is equ.ally obvious that until
the blasting cap is added they are not "ready for firing." The civi'l
penalty portion of the above action is accordingly decided in
Peabody's favor and the complaint is dismissed.•
This leaves the question of whether or not there was an inuninent
danger. Obviously the inspector who appeared to be a dedicated and
sincere law enforcement official believed there was an innninent danger, or he wou.ld not have issued the order. He had been taught at
the Bureau of Mines school in Beckley that primacord could be detonated by being run over by a bulldozer. Although he thought the
chance of the bulldozer operator detonating any of the pieces of
primacord sticking out of the blasting holes was rather remote, he
thought there was a definite possibility of an explosion should the
bulldozer run over the 2 cases of coiled primacord. He had been
taught at Beckley that a coil of primacord would explode if crushed.
The operator of the bulldozer, Mr. Cobb was equally concerned about
his own safety and was very nervous about operating between loaded
blasting holes. He said "no powder is safe."
Despite the sincerity of the inspector, and the operator of the
bulldozer, however, the other testimony in the case convinces me
that primacord and cast primers are extremely safe explosives. The
main explosive used in the mine, ANFO (meaning ammonium nitrate and
The letter from MSHA 1 s attorney dated June 11, 1979, indicates
that MSHA no longer supports the statement in the manual.

1/

718

fuel oil) and ammonium nitrate slurry are extremely insensitive
explosives. 2/ They cannot be exploded with a blasting cap except
under unusual circumstances and an efficient explosion cannot be
obtained with primacord alone. For an efficient explosion, the
primacord must be attached to the cast primer or booster before
either the slurry or the ANFO can be efficiently detonated. But in
the entire explosive train, the least sensitive element is the
primacord. Mr. Hynes a professional engineer.with a degree in mining gave convincing testimony as to the safety of primacord. If it
is placed against a steel wall and impacted with the army equivalent
of the french 75 cannon, detonation can occur. Short of that, however, and nothing in the mine even approaches that degree of heat
and pressure, primacord or detonating cord will not explode. While
it will burn, the burning will not cause detonation. It takes a
blasting cap, another explosion such as a dynamite explosion next to
it or the impact of a French 75 to set it off. I cannot find that
there was an imminent danger because of the possibility of the bulldozer running over the primacord. I make a similar finding regarding
the cast primers but point out that there was no evidence that the
bulldozer operator operated near those charges.
I find that no imminent danger existed and accordingly vacate
Order of Withdrawal 390240.

~eR;~?-

Charles C. Moore, Jr.
Administrative Law Judge
Issued:

June 29, 1979

Distribution:
Thomas F. Linn, Esq., Peabody Coal Company, Suite 600,
12015 East 46th Avenue, Denver, CO 80239 (Certified Mail)
Robert A. Cohen, Esq., MSHA, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA
Administrator for Coal Mine Safe.ty and Health, U.S. Department
of Labor
Standard Distribution
2/ It was, however, ammonium nitrate fertilizer mixed with diesel
fuel oil which blew up Texas.city in 1947.

719

FEDERAL MINE SAFETY AND HEALTH REVl!Et.V COf~'1MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSOtJ BOULEVARD
ARLINGTON, VIRGINIA 22203

June 29, 1979

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

Civil Penalty Proceeding
Docket No. HOPE 78-330-P
A.C. No. 46-03467-02057-V
Meadow River No. 1 Mine

SEWELL COAL COMPANY,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Gary W. Callahan, Esq., The Pittston Company Coal
Group, Lebanon, Virginia, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On April 18, 1978, a petition for assessment of civil penalties
was filed by the Mine Safety and Health Administration (HSHA) against
Sewell Coal Company for alleged violations of various sections of the
Code of Federal Regulations. The petition was filed pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a) (1977 Mine Act). An answer was filed on May 4,
1978.
A notice of hearing was issued on May 17, 1978, setting the hearing for September 19, 1978. An amended notice of hearing was issued
·on July 21, 1978, changing the hearing date to August 29, 1978. On
August 3, 1978, the Respondent moved to change the hearing date to
October 24, 1978. The motion was granted by an order .issued
August 14, 1978. The hearings commenced on October 24, 1978, in
Charleston, West Virginia, and began with the taking of testimony
in a companion case.
The hearing in the present case commenced on October 26, 1978,
at which time the parties proposed settlements relating to Order Nos.
7-0012 (1 HRB), January 27, 1977, 30 CFR 75.400, and 7-0024 (1 SEV),
January 28, 1977, 30 CFR 75.400. Testimony was taken respecting

720

Order Nos. 7-0041 (1 SEV), February 1, 1977, 30 CFR 75.1100-3, 7-0042
(2 SEV), February 1, 1977, 30 CFR 75.1100-3, and 7-0140 (1 HRB),
February 15, 1977, 30 CFR 75.200. At the conclusion of the proceedings on October 26, 1978, the hearing was continued pending ~
telephone conference between counsel for the parties and the Administrative Law Judge to determine the date for the conclusion of the
hearing. As a result of an agreement reached during the telephone
conference, the proceeding was continued until November 20, 1978.
At the commencement of the proceedings on November 20, 1978,
counsel for the parties proposed settlements pertaining to two of
the remaining three orders. Testimony was taken respecting the
remaining contested order.
The decision approving the settlements is included in this
decision.
During the hearings on October 26, 1978, and November 20, 1978,
counsel for the Respondent made various oral motions. Rulings on
these motions are contained herein.
A briefing schedule was arranged at the conclusion of the proceedings on November 20, 1978. Briefs were due on or before February 1,
1979, and reply briefs were due on or before February 15, 1979. MSHA
filed a posthearing brief on February 1, 1979. · The transcript of the
first portion of the case was filed on January 30, 1979, such delay
having been due to the illness of the reporter. Consequently, a motion
for late filing of briefs was filed on February 1, 1979, which motion
was granted. Respondent filed its posthearing brief on February 26,
1979. On March 22, 1979, MSHA filed its second posthearing brief and
a response to the proposed findings of fact and conclusions of law
contained in the Respondent's posthearing brief.
II.

Violations· Charged
Order No.
7-0012 (1 HRB)
7-0024 (1 SEV)
7-0041 (1 SEV)
7-0042 (2 SEV)
7-0045 (2 HRB)
7-0140 (1 HRB)
7-0187 (1 HRB)
7-0209 (1 FLD)

III.

Date
January 27, 1977
January 28, 1977
February 1, 1977
February 1, 1977
February 1, 1977
February 15, 1977
February 17, 1977
March 7, 1977

30 CFR Standard
75.400
75.400
75 .1100-3
75 .1100-3
75.400
75.200
75.400
75.400

Evidence Contained in the Record
A.

Stipulations

At the commencement of the hearing and in their posthearing submissions, the parties entered into stipulations and reached agreement

721

on proposed findings of fact and conclusions of law which are set
forth in the findings of fact, infra.
B.

Witnesses

MSHA called as its witnesses Sidney E. Valentine and Henry R.
Baker, MSHA inspectors.
Sewell called as its witnesses Sidney E. Valentine, the abovementioned MSHA inspector; Fred D. Copen, the maintenance superintendent at the Respondent's Meadow River No. 1 Mine; Randolph R. Skaggs,
a miner operator at the Respo~dent's Meadow River No. 1 Mine on the
date of the order and currently the dispatcher at the mine; Darrell
Pomeroy, the union conveyor belt examiner for Sewell Coal Company;
and, Terry Casto, Sewell's safety inspector.
C.

Exhibits

1)

MSHA introduced the following exhibits into evidence:

~.)

M-1 is a computer printout of the history of violations for
which penalties have been paid for the Respondent's Meadow River No. 1
Mine for the period beginning January 1, 1970, and ending February 17,
1977.
b) M-2 is a a copy of Order No. 7-0012 (1 HRB), January 27,
1977, 30 CFR 75.400.
c)

M-3 is a termination of M-2.

d)

M-3A is a special assessment information sheet.

e) M-4 is a copy of Order No. 7-0024 (1 SEV), January 28, 1977,
30 CFR 75.400.
f)

M-5 is a termination of M-4.

g)

M-5A is the inspector's statement relating to M-2.

h)

M-5B l. s the inspector's statement relating t·o M-4.

i) M-6 is a copy of Order No. 7-0041 (1 SEV), February 1, 1977'
30 CFR 75 .1100-3.
j)

M-7 ~s a termination of M-6.

k) M-8 is a copy of Order No. 7-0042 (2 SEV), February 1, 1977,
30 CFR 75.1100-3.
1)

M-9 is a termination.of M-8.

722

m) M-10 is a copy of Order No. 7-0045 (2 HRB), February 1, 1977,
30 CFR 75.400.
n)

M-lOA is a copy of the inspector's statement accompanying

o)

M-11 is a termination of M-10.

M-10.

p) M-12 is a copy of Order No. 7-0140 (1-HRB), February 15,
1977, 30 CFR 75.200.
q) M-13 is the roof control plan for the Respondent's Meadow
River No. 1 Mine, in effect on February 15, 1977.
r)

M-13A is a termination of M-12.

s) M-14 is a copy of Order No. 7-0187 (1 HRB), February 17,
1977, 30 CFR 75.400.
t)

M-15 is a termination of M-14.

u) M-16 is a copy of Order No. 7-0209 (1 FLD), March 7, 1977,
30 CFR 75.400.
v)

M-16A is a form filled out by the Pittston Company.

w)

M-16B is an inspector's statement accompanying M-16.

x)

M-17 is a termination of M-16.

2) The Respondent introduced the following exhibits into
evidence:
a) 0-1 is a statement prepared by the Pittston Company outlining
their defense for Order No. 7-0045 (2 HRB), and submitted in conjunction with the proposed settlement of that order.
b) 0-2 is a statement, similar to 0-1, submitted in conjunction
with the proposed settlement of Order No. 7-0209 (1 FLD).
c) 0-3 is a copy of the cleanup program at the Respondent's
Meadow River No. 1 Mine.
d) 0-4 is a copy of a form filled out by a belt examiner at the
conclusion of a shift.
e) 0-4A 1S a copy of a form filled out by a belt examiner at the
end of a shift.
f) 0-4B is a copy of a form filled out by.a belt exami.ner at the
end of a shift.

723

IV.

Issues·

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

Opinion and Findings of Fact
A.

Stipulations

1) At the COIIll~encement of the hearing, the parties entered into
the following stipulations:
a) The Pittston Company produces approximately 12,036,974 tons
of coal per year (Tr. 14).
];)

On February 26, 1979, the Respondent filed a posthearing brief as

to the violations alleged in Order Nos. 7-0041 (1 SEV) and 7-0042

( 2 SEV). In its post hearing brief, the Respond·ent phrases the issue
in this civil penalty proceeding as:. whether th~ issuance of the
orders of withdrawal was valid. Specifically, the Respondent contends that the orders are invalid in that the violations were not
caused by an "unwarrantable failure" to comply with the mandatory
safety standard embodied in 30 CFR 75.1100-3, as required by section
104(c)(l) of the Federal Coal Mine Health and Safety A~t of 1969
(1969 Coal Act). An order issued under section 104(c)(2) of the
1969 Act must be based on the criteria set forth in section 104(c)(l)
of the 1969 Act.
However, the decisions of the Interior Board of Mine Operations
App~als establish that the propriety of the issuance of a withdrawal
order is not an issue in a civil penalty proceeding. Jewell Ridge
Coal Corp., 3 IBMA 376, 81 I.D. 624, 1974-1975 OSHD par:-18,901
(1974); Coal Processing Corporation, 2 IBMA 336, 342 80 I.D. 748,
1973-1974 OSHD par. 17,978 (1973); Eastern Associated Coal Corp.,
1 IBMA 233, 236, 79 I.D. 723, 1972-1973 OSHD par. 15,388 (1972).
However, evidence bearing upon whether the violation was caused by
an "unwarra.ntable failure" to comply with the mandatory safety standard is also material to the negligence issue which must be addressed
in a civil penalty proceeding. See Zeigler Coal Company, 7 IBMA 280,
84.I.D. 127, 1977-1978 OSHD par.ll,676 (1977).

724

b) The Meadow River No. 1 Mine produces approximately
154,797 tons of coal per year (Tr. 14).
c) At the Meadow River No. 1 Mine, there are approximately
181 miners underground and approximately 20 on the surface (Tr. 15).
2) In the posthearing brief filed on February 26, 1979, the
Respondent submitted 24 proposed findings of fact. In a response to
the proposed findings filed by MSHA on March 22, 1979, MSHA stated
that it had no ~bjection to 16 of the 24 proposed findings of fact.
The 16 proposed findings of fact to which MSHA had no objection are
as follows:
a) The Meadow River No. 1 Mine is operated by Sewell Coal
Company.
b) The Meadow River No. 1 Mine is subject to the provisions
of the 1969 Act under which the hearing was held.
c) The Administrative Law Judge has jurisdiction over this
proceeding.
d) That Sidney E. Valentine was a duly authorized representative of the Secretary at all times relevant to the issuance of
Order Nos. 7-0041 (1 SEV) and 7-0042 (2 SEV). True and correct
copies of the orders were served on Sewell Coal Company.
e) The following proposed findings of fact, to which MSHA had
no objection, relate to Order Nos. 7-0041 (1 SEV) and 7-0042 (2 SEV):
i) The water supply line that froze supplied water to
both sprinkler systems in the form of a 11 T11 unit (Tr. 41-42).
ii)

The main line was 6-8 inches in diameter (Tr. 46).

iii) The temperature was -25 degrees Fahrenheit on the day
of the violation (Tr. 69).
iv) On the day of the violation, about 50 percent of the
mines in the area were closed because of cold weather (Tr. 73).
v) The water supply line had a drip valve to help prevent freezing (Tr. 72-73).
vi) On the day of the order, no mining was being performed
in the mine (Tr. 35-36).
vii)
36, 70, 77).

No coal was being transported on the conveyor belt (Tr.

725

viii) It is company policy not to mine coal when there is
no water supply in the mine (Tr. 75).
ix)

The violation was abated as quickly as possible (Tr.

29).
x) The inspector's concern centered on his perceived
problem of a possible fire at the belt head (Tr. 38, 48-49).
xi)

The· belts had slippage rollers (Tr. 44-45, 67).

xii)

The belts were not running continuously (Tr. 70).

B.

Order No. 7-0041 (1 SEV), February 1, 1977' 30 CFR 75.ll00-3;
Order No. 7-0042 (2 SEV), February 1, 1977' 30 CFR 75. ll00-3

1)

Motions to Dismiss

During the course of the hearings, counsel for the Respondent
made two oral motions to dismiss. First, the Respondent argued that
the case should be dismissed because the inspector cited the wrong
mandatory safety standard (Tr. 55-60). The Respondent contends that
since the conveyor belt drive units were equipped with sprinklers
pursuant to 30 CFR 75.llOl-6, the violation, if any, would have to
be for failure to comply with 30 CFR 75.1101-7 through 75.1101-11.
According to the Respondent's theory, the inspector erred in citing
30 CFR 75.1100-3 because sections 75.1100-3 and 75.1101-6 are mutually
exclusive (Tr. 55). I disagree with the Respondent's theory. The
pertinent language in 30 CFR 75.1100-3 states that: ''All firefighting
equipment shall be maintained in a usable and. operativecondition. 11
(Emphasis added.) The all-encompassing phrase "All firefighting equipment" identifies the section as a general provision applicable to all
firefighting equipment, including the sprinkler system at issue in the
present case. Sections 75.1101-7 through 75.1101-11 are not incompatible with section 75.1100-3. Although those sections set forth particularized requirements for the installation and maintenance of water
sprinkler systems, the requirements merely supplement, not supplant,
the general requirement of section 75.1100-3 that all systems be maintained in a usable and operative condition. The Respondent's motion
to dismiss for failure to cite the appropriate standard in the Code of
Federal Regulations is, therefore, DENIED.
In his second oral motion, counsel for Respondent sought dismissal of one of the orders because, according to the Respondent, only
one violation existed (Tr. 63). In support of this motion, the Respondent argues that the frozen water pipe is the sole alleged violation.
I disagree. The two withdrawal orders allege separate violations.
The alleged violation is not the mere existence of the frozen water
pipe, but operating two separate belt drives in the absence of workable automatic fire suppressiqn devices at each drive unit. The

726

motion is-, therefore, DENIED. The fact that the frozen water pipe
was related to both alleged violations will be considered in the
assessment of an appropriate civil penalty if the violations are
found to have occurred as alleged. Additionally,· the validity 0£ the
order of withdrawal is not at issue in this civil penalty proceeding.
See Jewell Ridge Coal Corp., 3 IBMA 376, 81 I.D. 624, 1974-1975 OSHD
par. 18,901 0974); Eastern Associated Coal Corp., 1 IBMA 233, 79 I.D.
723, 1972 OSHD par. 15,388 (1972).
2)

Occurrence of Violations

On February 1, 1977, MSHA inspector Sidney E. Valentine conducted an inspection at the Respondent's Meadow River No. l Mine.
He issued two 104(c)(2) orders citing violations of 30 CFR
75.1100-3 as to inoperable water spr~nkler systems for the No. 1
and No. 2 belt drives 2/ (Exhs. M-6, M-8). The orders stated that
the water sprinkler system, installed as automatic firefighting
equipment, for the two belt drive units were "not maintained in
operating condition in that, the main water supply for the mine was
frozen and water was not provided for the system" (Exhs. M-6, M-8).
The orders also stated that "Mine management knew this condition
existed and was trying to thaw the water supply," but continued to
operate the belt conveyors in spite of the lack of water for the
automatic firefighting equipment (Exhs. M-6, M-8).
The water supply line, a 6- to 8-inch diameter pipe (Tr. 46),
was frozen where the pipe enters the mine (Tr. 27). The frozen line
supplied water to both sprinkler systems in the form of a "T" unit
(Tr. 41, 42). Although the supply line was equipped with a drip
valve to help prevent freezing (Tr. 72, 73), it was unable to prevent freezing on February 1, 1977, as the temperature was -25 degrees
Fahrenheit. On the day of the orders, approximately 50 percent of
the mines in the vicinity were closed due to cold weather (Tr. 73).
The belt conveyor drives for the No. 1 and No. 2 belts are
approximately 3 to 6 feet apart (Tr. 30). Two orders were issued
because: 1) each belt drive is a separate piece of equipment, even
though both sprinkler systems were rendered inoperable by the same
frozen pipe (Tr. 30, 31, 41), and, 2) both belts were moving (Tr.
26, 36). Coal had not been mined that day, and coal was not being
transported on the conveyor belts (Tr: 35, 36, 74).
The No. 1 and No. 2 conveyor belts dump onto a third belt, known
as the slope belt (Tr. 79). All three belts operate on an automatic
sequence st.art system (Tr. 70). Engaging the slope belt automatically
starts a sequence, thereby starting the No. 1 and No. 2 conveyor belts

2/ 30 CFR 75.1100-3 states in pertinent part: "All firefighting
equipment shall be maintained in usable and operative condition."

727

(Tr. 70). At the time the orders were written, the system was not
equipped with either a switch or other device that would have enabled
the operator to use the slope belt-without activating the No. 1 and
No. 2 conveyor belts (Tr. 80). The operator was using the slope belt
at intermittent intervals to transport ice chips from inside the mine
(Tr. 70). The transported ice had been chipped from frozen waterlines
in order to provide the necessary access to the lines to thaw them
out (Tr. 70).
The evidence in the record establishes that the No. 1 belt drive
unit and the No. 2 belt drive unit were separate pieces of equipment
(Tr. 29-30). Both pieces of equipment were operating at a time when
the automatic fire suppression devices were inoperable (Tr. 34). I
therefore conclude that the violations alleged in Order Nos. 7-0041
(1 SEV) and 7-0042 (2 SEV) have been established by a preponderance
of the evidence. 29 CFR 2700.48.
3.

Gravity of the Violations

The inspector testified that if a fire occurred while the fire
suppression equipment was inoperable, the miners would have been
subjected to a smoke inhalation hazard (Tr. 26). The area was on
intake air, but he did not know whether the air went to the face
area (Tr. 26). He classified death or injury as "probable" (Tr.
28). At first, he estimated that approximately 30 miners were
exposed to the hazard (Tr. 28). However, he admitted under crossexamination that he did not count them, and that the number could
have been much lower than 30 (Tr. 42-43).
However, the inspector's testimony reveals that a fire hazard
would have been present only if coal had been transported on the
belt conveyors (Tr. 38). He stated that no fire hazard was present
when the orders were issued (Tr. 38).
The evidence in the record confirms the inspector's opinion
that no hazard was present. Coal was not being mined w~en the
orders were issued, and coal was not being transported on the conveyor belts (Tr. 35, 36, 74).
According to the inspector, the problem was not something along
the belt catching fire, but something at the belt dri~e catching fire
due to friction (Tr. 37). Friction could have ignited both coal on
the belt aµd any accumulations that happened to be present near the
belt heads (Tr. 37-38). Although no coal was on the belts when the
orders were issued, there was some coal beneath the belt drives (Tr.
37). It was not touching the belt drive (Tr. 37). However, the
probability of friction was minimized by the presence of operable
slippage rollers (Tr. 44, 69), devices which prevent ignition by
preventing friction (Tr. 69). In addition, the belts were made of
flame-resistant material (Tr. 51). The inspector found no problem

728

with the motor or with the wires leading to the motor (Tr. 50).
Two fire extinguishers and 10 packs of rock dust were located at
the belt heads (Tr. 71, 72). The fire extinguishers were operable
(Tr. 46-47).
Based on the foregoing, I conclude that no gravity was associated
with the two violations.
4.

Negligence of the Operator

The No. 1 and No. 2 conveyor belts automatically engaged when the
slope helt was activated (Tr. 70). The only way to stop the two subject belts while the slope belt was working was to unhook some wires
(Tr. 80). The slope belt was used only intermittently on February 1,
1977, and only to transport ice out of the mine (Tr. 70, 79).
The assistant mine foreman knew that water was not available for
fire protection at the belt head (Tr. 24, 28, 31). The belts should
not have been operated while the waterline was frozen (Tr. 28). The
operator should have known of the condition's existence because the
mine foreman knew the waterline was frozen and that the belts were
operating (Tr. 24-26).
.
Additionally, the fact that the operator was using the belts only
to remove ice from the mine on an abnormally cold day, and the fact
that the abnormally cold weather rendered the automatic fire suppression system inoperable, indicates a low degree of negligence. This
is so because such conditions were not experienced routinely in the
ordinary course of the operator's mining activity.
Based on the foregoing, I conclude that Respondent demonstrated
ordinary negligence.
5.

Good Faith in Securing Rapid Abatement

Order No. 7-0041 (1 SEV) (Exh. M-6) was issued at 9:15 a.m.
and terminated at 4:05 p.m. (Exh. M-7). Order No. 7-0042 (2 SEV)
(Exh. M-8) was issued at 9:20 a.m. and terminated at 4 p.m. (Exh.
M-9). The inspector testified that the operator abated the violation as quickly as possible (Tr. 29).
Mr. Fred Copen, the Respondent's maintenance superintendent at
the mine, testified that his men were working on the condition when
the inspector arrived (Tr. 74). After they had chipped through the
ice and reached the waterline, they used electric·heaters to thaw
the pipes (Tr. 74, 78).
I therefore conclude that the Respondent demonstrated the utmost
good faith in securing a rapid abatement of the violation.

729

C.

Order No. 7-0140 (1 HRB), February 15, 1977, 30 CFR 75.200

On February 15, 1977, MSHA inspector Henry R. Baker inspected the
Respondent's Meadow River No. 1 Mine. At 9:25 a.m., he issued th~
subject withdrawal order for an alleged violation of the mandatory
safety standard embodied in 30 CFR 75.200 3/ (Tr. 97, Exh. M-12).
The Petitioner contends that the approved roof control plan for the
Respondent's Meadow River No. 1 Mine (Exh. M-13), .in effect on
February 15, 1977, was not being observed in that the temporary roof
supports had not been installed properly. The Respondent's affirmative defense asserts that installation of the temporary supports,
spaced according to Diagram No. 1 of the roof control plan, would
have required the Respondent to violate that provision of the plan
which requires all posts to be installed on solid footing, 4/ and,
since the area had been "dangered off," no violation can be-found.
The question presented is whether the parties have met their respective burdens of proof under the rule set forth by the Interior Board
of Mine Operations Appeals in Zeigler Coal Company, 4 IBMA 88, 82 I.D.
111, 1974-1975 OSHD par. 19,478 (1975), reaffirmed on reconsideration,
4 IBMA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638 (1975). Accordin~'to the Board:
·
[S]ince [MSHA] has the burden of proof where the violation
of a mandatory health or safety standard is in issue, it
3/

30 CFR 75.200 states:
"Each operator shall undertake to carry out on a continuing basis
a program to improve the roof control system of each coal mine and
the means and measures to accomplish such system. The roof and ribs
of all active underground roadways, travelways, and working places
shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining system of
each coal mine and approved by the Secretary shall be adopted and
set out in printed form on or before May 29, 1970. The plan shall
show the type of support and spacing approved by the Secretary. Such
plan shall be reviewed periodically, at least every 6 months by the
Secretary, taking into consideration any falls of roof or ribs or
inadequacy of support of roof or ribs. No person shall proceed
beyond the last permanent support unless adequate temporary support
is provided or unless such temporary support is not required under
the approved roof control plan and the absence of such support will
not pose a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative and shall
be available to the miners and their representatives."
4/ Safety Precaution No. 10 of the approved roof control plan (Exh.
M-13 at p. 8), states: "All posts shall be installed tight and on
solid footing and not more than two wooden wedges shall be used to
install a post." (Emphasis added.)

730

must not only establish a prima facie case under [Section
7(d) of the Administrative Procedure Act, 5 u.s.c. § 556(d)]
in a penalty proceeding, but under the regulation, it must
also preponderate over any rebutting evidence adduced by
the operator in order to prevail.
4 IBMA at 101, 102. ~_/
In a foo~note to the above-quoted passage, the Board further
stated:
In penalty cases, the Government's statutory obligation to establish a prima facie case is limited only to
establishing the existence or a violation. Such obligation does not relate to affirmative defenses, especially
as they concern claims of mitigation based upon the criteria for assessing a penalty once it is determined that
a violation occurred.
4 IBMA at 10 2 , n. 4 •
5/ Section 7(d) of the Administrative Procedure Act, 5 u.s.c.
§ 556(d), states, in pertinent part: "A sanction may not be
imposed or rule or order issued except on consideration of the whole
record or those parts thereof cited by a party and supported by and
in accordance with reliable, probative, and substantial evidence."
According to the Board, a withdrawal order issued or penalty
assessed is a governmental action imposing a sanction of a kind contemplated by the above-quoted language. The Board interpreted the
above-quoted language as requiring MSHA to establish a prima facie
case in a proceeding involving a withdrawal order or a violation of
a mandatory health or safety standard for which a civil penalty is
sought to be assessed. Zeigler Coal Company, 4 IBMA 88, 99-100,
82 I.D. 111, 1974-1975 OSHD par. 19,478. 0975), reaffirmed on reconsideration, 4 IBMA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638
(1975).
The Board noted that the duty of establishing a prima facie case
is not the same as bearing the burden of proof. Zeigler Coal Company,
4 IBMA 88, 100, 82 I.D. 111, 1974-1975 OSHD par. 19,478 (1975),
reaffirmed on reconsideration, 4 IBMA 139, 82 I.D. 221, 1974-1975
OSHD par. 19,638 (1975). Burden of proof is governed by Rule 48 of
the Interim Procedural Rules, 29 CFR 2700.48, which states:
"In proceedings brought under these rules, the applicant, petitioner or other party initiating the proceedings shall have the
burden of proving his case by a preponderance of the evidence: Provided, That, whenever the vioiation of a mandatory health or safety
standard is at issue, the Secretary shall have the burden of proving
the violation by a preponderance of the evidence."

731

The evidence adduced at the hearing, to which the above-quoted
standards must be applied, reveals the following: Inspector Baker
testified that in the northwest mains section, the second open
crosscut right outby the face off No. 6 entry had been holed into
the No. 7 entry (Tr. 90-91, Exh. M-12). The inspector stated that
the approved roof control plan (Exh. M-13) was not being complied
with in that the first temporary roof supports, which had been
installed after the completion of the continuous miner runs (Exh.
M-12), were located 12 feet inby the last permanent roof support
(Tr. 90-91, 94, 99, Exh. M-12). According to the inspector, this
did not comply with Drawing No. 1 of the approved roof control plan,
which indicates that the first temporary support should be installed
not greater than 5 feet inby the last permanent support (Tr. 91, 92,
Exh. ~-13). The source of the spacing and timing requirements is
paragraph No. 2, located adjacent to the scale drawing (Tr. 92),
which states, in pertinent part:
Temporary supports in row (A) shall be installed after
the first run is completed and prior to the commencement
of the second run. Temporary supports in rows (B) and (C)
shall be installed within one hour after completion of the
run and prior to bolting. Temporary supports shall be
installed, on 5-foot maximum centers, to within five feet
of the ribs and face or the nearest permanent support.
See also (Tr. 92, 93-94). The 12 feet was measured from the small
blocks in the drawing, which indicate permanent supports, to the
circles, which indicate the first row of temporary supports (Tr.
95, Exh. M-13, Drawing No. 1). The inspector obtained an accurate
measurement of the distance by tying his cloth measuring tape to
a hammer, and throwing the hammer into the first temporary support
(Tr. 143-144).
The inspector noticed a slope in the floor of the No. 7 entry
adjacent to the area where it had been cut through from the crosscut. He characterized this slope as a "slight offset," i.e., there
was an offset from a high point in the No. 7 entry to a Tow point in
the crosscut (Tr. 132, 148).
Although no one explained to the inspector why the temporary supports had not been installed (Tr. 95), he speculated that the presence
of water in the subject area might have been the reason (Tr. 95). The
water was located in the crosscut near the area where it had been holed
through into the No. 7 entry (Tr. 96). Additional water was not
running into the area at the time the violation was observed, but the
inspector admitted.that additional water could have been seeping in
from the bottom of the mine (Tr. 135). He did not know the source of
the water (Tr. 96). The inspector did not know the depth of the
water (Tr. 96), as he had no way of accurately measuring the depth (Tr.
133). He further testified that the area had not been 11 dangered off"

732

(Tr. 95), ·but admitted that he could have missed the danger sign (Tr.
152).
Acco.rding to the inspector, the presence of water would have· had
no bearing on the installation of temporary supports except that the
person installing them would have had to wade into the water (Tr. 96).
However, he admitted under cross-examination, that gob could have
been present at the bottom of the slope underneath the water, and that
such gob would be very loose (Tr. 133). A man wading into the water,
not knowing either whether gob was present or the precipitousness of
the slope, could have been exposed to danger (Tr. 134). Of major
significance to the Respondent is the inspector's testimony, under
cross-examination, that gob is not solid footing (Tr. 134). According to the inspector, the roof control plan requires posts to be
set on solid footing. Attempting to place the temporary supports
above anything other than solid footing would have violated the
roof control plan (Tr. 134). The gob would have to be cleaned out
before setting the posts into place (Tr. 134).
Mr. Randolph R. Skaggs testified as the Respondent's defense
witness. Mr. Skaggs.was the continuous miner operator who had holed
through the crosscut from the No. 6 entry into the No. 7 entry (Tr.
154-155). However, he did not recall whether he had made the cut on
the day the order of withdrawal was issued (Tr.· 166-167). The continuous miner operator, on the shift previous to Mr. Skaggs' cut, had
cut approximately 3 feet below the coal seam into the floor of the
crosscut (Tr. 154, 170). A stream of water was coming from the face
of the No. 6 entry. The water flowed into the subject crosscut,
collecting in th~ depression in the mine floor caused by the operator
on the previous shift (Tr. 170). The water prevented a person from
seeing the bottom of the depression (Tr. 155).
According to Mr. Skaggs, he made one run, establishing a cut
for air purposes (Tr. 155). He described the cut as 10-1/2 feet wide
and approximately 13 feet deep (Tr. 155, 161-162, 169). 6/ He thereupon backed the miner out of the crosscut, bringing it to rest in
6/ The testimony of both Inspector Baker and Mr. Skaggs reveal sharp
differences as to the width of the cut in the inadequately supported
area. Mr. Skaggs' statement that the cut was 10-1/2 feet wide is
based on his assertion that he made only one run (Tr. 155). The continuous miner, a 120-L Jeffrey, makes a 10-1/2-foot cut (Tr. 154).
Inspector Baker testified that the entry could not have been a
single run in width, instead characterizing it as two runs in width
(Tr. 137, 146-147). At one point, he stated that he did not know the
width of the cut (Tr. 137), and that he did not measure the width of
the cut ,(Tr. 142). However, he approximated its width as 18 to
20 feet at one point in his testimony (Tr. 142), while at another
point, he admitted that the width could have measured 15 feet (Tr.
146).

733

the No. 6 entry (Tr. 155, 170). The depth of the water prevented him
from proceeding inby the last permanent support to install the temporary supports (Tr. 155-156) for the following reasons: The miner acts
as a dam causing the water to collect at the lefthand rear portion of
the machine (Tr. 155). While backing the miner out of the area, water
flowing downhill will rush to the face area (Tr. 155). As the muddy
water prevents one from seeing the bottom, it would have been dangerous to attempt installation of the temporary supports (Tr. 156). The
muddy water prevents one from determining the condition of the bottom,
i.e., whether it· is uneven or whether loose material is present (Tr.

156).

He testified that after backing the miner out of the crosscut
(Tr. 155), he dangered off the area. This was accomplished by using
a piece of chalk to write the word "Danger" on a half-header and subseque~tly propping it at the mouth of the place using a rock (Tr. 157159). A half-header measures approximately 18 inches by 7 inches (Tr.
158). This makeshift sign was intended as a temporary measure. However, Inspector Baker testified that he did not think that the makeshift danger sign could not have been in the location described by
Mr .. Skaggs without the inspector seeing it (Tr. 179-180). Mr. Skaggs
had testified previously that the sign could have been removed by
someone (Tr. 161). Additionally, the inspector read the preshift
report before entering the mine, and did not see anything about the
dangered-off area. He stated that it was possible that he could
have overlooked it (Tr. 138).
According to Hr. Skaggs, the area could not have been timbered
because the timbers could not have been placed on a firm foundation-there was too much gob in the face (Tr. 156-157). Mr. Skaggs did
not know when the condition was abated (Tr. 165). However, when
he returned to the area during his next working· shift, the water
had been pumped out, the area had been ·cleaned, and temporary supports had been installed (Tr. 165).
After having backed the continuous miner out of the crosscut
and into the No. 6 entry, Mr. Skaggs and his helper proceeded to the
No. 7 entry where the helper placed temporary supports at the mouth
of the crosscut (Tr. 171-175). It is the Respondent's contention
that these supports were the ones mentioned by Inspector Baker in
fn. 6 (continued)
In this instance of conflict in the testimony, I conclude that
the testimony of the Respondent's witness is more credible and
entitled to acceptance. This conclusion is warranted for two reasons: First, the inspector neither measured the width of the cut
nor affirmatively ascertained that more than one run had been made.
Secondly, Mr. Skaggs had an objective reference point for his
statement, i.e., that one run had been made and that the miner made
a 10-1/2-foot-cut on each run.

734

his order of withdrawal. The inspector had testified that the temporary supports could have been set from the No. 7 entry side of the
crosscut (Tr. 132).
The foregoing evidence reveals that the Petitioner has not established a violation of the roof control plan in accordance with the
description in the subject order of withdrawal and thus has not met
the burden of proof rule set forth in the above-quoted passages from
Zeigler Coal Company, supra.
The order of withdrawal essentially alleges that the roof control
plan was not followed in that the crosscut had been holed into the
No. 7 entry and the temporary roof supports had been installed 12 feet
inby permanent roof supports (Exh. M-12). Thus, the order indicates
that the alleged violation relates to the location of the temporary
supports rather than to the lapse of time since the area had been last
cut. The order, on its face, seems to infer that the person setting
the temporary supports may have gone more than 5 feet out from under
the permanent supports to set the temporary supports, which would have
been a violation of the plan (Exh. M-13, p. 7, par. 5). The evidence
presented by the miner operator clearly showed that such was not the
case since those supports were set from the other end of the crosscut
from a permanently supported area in the No. 7 e.ntry.
After presentation of all of the evidence, it appeared that the
only violation that could have occurred related to the question as to
whether there was too much time that elapsed be~ween the last cut of
coal,and the time the inspector arrived at the area, without supports.
However, such an alleged violation was not described in the
order. This order was written under the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970). Section
104(e) of that Act required, inter alia,~hat orders shall contain
a detailed description of the condition or practice which constituted a violation of any mandatory safety standard. The detailed
description is particularly important so that the operator will
know what the actual violation is and what must be done to correct
the problem· and not repeat the violation again. The actual wording of the order would not inform the operator that the time lapse
was the actual alleged violation.
Since the evidence now shows that there was no violation as
relates to the position of the temporary supports, it must be held
that a violation of 30 CFR 75.200 has not been proved under this
order.
Even if it were argued that the order can be-interpreted to
allege a violation of some time requirement as to the installation
of temporary supports, it cannot be held that a violation has been
proved.

735

As to the time requirements, Drawing No. 1 of the roof control
plan requires, in pertinent part, that:
Temporary supports in row (A) shall be installed after
the first run is completed and prior to the commencement of
the second run. Temporary supports in rows (B) and (C)
shall be installed within one hour after completion of the
run prior to bolting. Temporary supports shall be installed
on 5-foot maximum centers, to within 5 feet of the ribs and
face or the nearest permanent support. [Emphasis added.]
The above-quoted passage states that the temporary supports in
row (A) must be installed after the completion of the first run and
prior to commencing the second run. It is arguable that this language
can be interpreted as excusing the installation of temporary supports
after the completion of the first run as long as those supports are
installed prior to beginning the second run. As only·one run had
been completed in the present case, it could be argued that the
temporary supports did not have to be installed immediately following the completion of the first run as long as they were installed
prior to the commencement of the zecond run, regardless of the
amount of time elapsing between runs. However, this interpretation
is contrary to the tenor of 30 CFR 75.200, which seeks to protect
persons from roof and rib falls.
An interpretation of the roof control plan would require the
installation of temporary supports, under the facts presented herein,
within a reasonable time after completion of the run. The abovequoted passage from Drawing No. 1 reveals that the plan's minimum
requirements envision the normal mining sequence in entries, rooms or
crosscuts as consisting of two runs. In the course of normal mining
operations, the temporary supports in row (A) would be installed
immediately after completion of the first run so that the second run
could be commenced as quickly as possible. Under such ci~cumstances,
it is readily apparent why the requirement that temporary supports be
installed within 1 hour after completion of the run,is mentioned only
in connection with the installation of temporary supports in rows (B)
and (C). This warrants the conclusion that, where only one run is
made, the row of temporary supports must be installed within a
reasonable time .after its completion.

The key question, for purposes of the present case, is what
constitutes a reasonable time. Inferences drawn from the testimony
of the witnesses reveal that the conditions existed at 4 p.m.,
February 14, 1977, 17 hours and 25 minutes prior to issuance of the
order of withdrawal. Mr. Skaggs' testimony establishes that he made
the subject run in the crosscut and had installed the temporary supports (Tr. 154, 156, 171-175), but he could not recall the day on
which he made the run (Tr. 166-167). He could not recall whether
he made the run in the morning or during the afternoon (Tr. 167-168).

736

He was working straight day shift around February 15, 1977 (Tr. 166),
beginning work at 8 a.m. (Tr. 167). Inspector Baker testified that
the area in question had not been cut on the morning of February 15,
1977, because it would have·required 45 minutes to 1 hour to make
the cut (Tr. 136). He had followed the day crew into the mine, and
they "certainly didn't have time to make this particular mine site"
(Tr. 136). Since the run could not have been made on the February 15,
1977, day shift, and since the miner operator who had made the run
was working straight day shift, it can be inferred that the condition
had existed for at least 17 hours and 25 minutes prior to the issuance
of the order.
Whether it was unreasonable to permit the condition to exist for
17 hours and 25 minutes cannot be determined from the record. The
plan does not specifically set forth a time within which the first
row of temporary supports is required to be installed, and considering the general provisions of 30 CFR 75.200, there is no evidenc~
to show that the conditions of the roof here indicated any particular time limit within which the temporary supports needed to be
installed. The alleged inadequately su~ported area was 10-1/2 feet
wide and approximately 13 feet deep (Tr. 155, 161), yielding an
area of approximately 136.5 square feet. The record contains no
evidence as to roof conditions in the crosscut. The record does
show that the condition of the bottom of the area where the temporary supports had to be installed presented a precarious situation
for any miners to make the required installation. It is clear that
the water had to be removed first and the gob in the bottom had to
be cleaned so that firm footing would result. Faced with this problem, the miner operator did place a danger sign in the area when the
run was completed. This danger sign may have disappeared subsequently.
In view of the fact that the roof control plan had no specific time
limit for the installation of the supports in question, since we must
apply a test of reasonableness of time., all of these surrounding circumstances must be considered. Under all of these circumstances, it
cannot be inferred that the area remained without temporary supports
for an unreasonable time after completion of the first run.
Therefore, I conclude that MSHA has failed to establish a violation of 30 CFR 75 .200 by a pr.eponderance of the evidence.
D.

Order No. 7-0187 (1 HRB), February 17, 1977, 30 CFR 75.400

1.

Motion to Dismiss

At the conclusion of MSHA's case-in-chief, the Respondent moved
to dismiss on the grounds that MSHA had failed to establish a prima
facie case for a violation of 30 CFR 75.400 within the ~eaning of
Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD par.
22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 19771978 OSHD par. 22,328 (1977). A ruling will be made based upon the
evidence in the record at the time the motion was made.

737

The Commission's Interim Procedural Rules do not set forth
.standards governing the disposition of motions to dismiss. However,
standards are set forth in Rule 4l(b) of the Federal Rules of Civil
Procedure. Although Rule 4l(b) is not applicable specifically to
administrative proceedings, it provides a useful reference point in
ruling upon the Respondent's motion. The rule reflects the most
recent statement of the courts' collective experience in deciding
such motions.
The Respondent contends that on the facts and the law, the
Petitioner has not established a claim for relief. See generally,
5 J. Moore, Federal Practice, par. 41.13[1] at 41-170:-41-17r-Tf978).
The motion must be denied if, upon the facts and the law in the record
at that time, the existence of a violation is shown. See generally,
5 J. Moore, Federal Practice, par. 41.13[1] at 41-172,""-LiT-173 (1978).
In light of the remedial purposes of the Act, the motion should be
granted only in "unusually clear" cases. See generally, Riegel Fiber
Corp. v. Anderson Gin Co., 512 F.2d 784, 793, n. 19 (5th Cir. 1975);
White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969).
The evidence in the record at the conclusion of the Petitioner's
case-in-chief. reveals the following: On February 17, 1977, MSHA
inspector Henry R. Baker conducted an inspectiofi at the Responden"·'s
Meadow River No. 1 Mine. He observed accumulations of float coal c '"':- ·
(Tr. 318-319, 369, Exh. M-14), and thereupon issued Order of Withdrawal
No. 7-0187 (1 HRB) for a violation of the mandatory safety standard
embodied in 30 CFR 75.400 (Exh. M-14). He ascertained the substance
was float coal dust by its texture and color (Tr. 320). He ran his
hannner through the substance and observed that it was powdery (Tr.
320). The float coal dust was located primarily along the No. 1
belt conveyor and aroun·d the belt drive (Tr. 324). There was no
problem along the No. 2 conveyor belt.
The No. 1 belt conveyor was on the left side of the mine slope
bottom, and the No. 3 belt conveyor was at a right angle to the No. 1
belt conveyor and dumped coal onto the No. 1 belt conveyor. Both
the No. 1 belt conveyor and the No. 2 belt conveyor dumped coal into
a surge bin (Tr. 341). The No. 1 belt was on the left side of the
bin, and the No. 2 belt was on the right side of the bin (Tr. 323).
The bin was approximately 30 feet deep (Tr. 323). A feeder, located
at the bottom of the bin, relayed the coal to the slope belt for
transportation to the preparation plant on the surface (Tr. 319, 321322). The coal on the No. 1 and No. 2- conveyor belts dropped
vertically into the bin (Tr. 323). At least part of the float coal
dust arose as coal falling into the bin struck the coal already
stored there (Tr. 324). The inspector testified that Mr. Dennis
Kyle, a mine foreman, mentioned during the inspection tour that due
to. the high velocity air currents coming up through the surge bin,
a float coal dust problem existed in the subject area of the mine
(Tr. 333). This conversation took place after the order was issued,
,.

738

but before it was terminated, i.e., between 11 a.m. and 1:30 p.m.
(Tr. 330-331). The inspector did not observe float coal dust rising
from the bin (Tr. 326). He conducted no air velocity tests (Tr.
333). The mine was producing coal and the No. 1 belt drive was
operating when the inspector observed the condition (Tr. 325-326).
Directly adjacent to the bin around the No. 1 belt drive, the
float coal dust was 3 inches deep, and the farther away one went from
the bin, the Less in depth the float coal dust became until it was
too shallow to measure (Tr. 319, 325-326, 333). I t ran the entire
length of the No. 1 belt and extended as far as the No. i belt conveyor drive, a distance of 300 feet (Tr. 325, Exh. M-14). It was
under the belt and along the sides (Tr. 325). Accumulations were
present also on the water pipes installed around the surge bin belt
drive, and on the frame of the bin (Tr. 319). He did not measure the
width -of the accumulations, but th.ey extended from rib to rib in
places. He stated that with regard to the type of mining used, the
entry is approximately 20 feet wide (Tr. 333-334). The area had been
rock dusted at some point in time, but the float coal dust accumulations were atop the rock dust (Tr. 319-320, 337, 368). The condition
was readily observable (Tr. 335). The accumulations were at least
1, 000 feet from the face (Tr. 33 7) .
A certain amount of float coal dust would accumulate during normal operations (Tr. 320, 326, 374-375). However, the accumulations
were described by the inspector as abnormal (Tr. 374-375). According to the inspector, the condition should have been known to the
operator because it could not have developed during one shift (Tr.
33~, 342-343).
The primary factor was the depth (Tr. 338-339). He
expressed the view that it would have required two shifts for the
condition to develop (Tr. 371). It should have been observed during
the required examinations (Tr. 342-343), but it -was not noted on the
preshift examiner's report (Tr. 339).
The inspector identified the belt drive and the mine track
system's trolley wire as potential ignition sources (Tr. 334, 339,
380-381). The mine track was described as a potential source of
ignition at the surge bin (Tr. 339). Although the track system was
relatively close to the No. 1 belt conveyor, it did not run parallel
to it (Tr. 380). It ran in the opposite direction (Tr. 380). He
stated that the trolley wire came to within approxima_tely 35 to
50 feet of the No. 1 belt drive (Tr. 381). He stated that a remote
possibility existed that arcing could have an effect upon the float
coal dust at the No. 1 belt drive, even though it was 35 to 50 feet
away from the possible ignition source (Tr. 381).
An explosion could have affected the entire mine. If an explosion had blown out the permanent stoppings, the ventilation system
could have been interrupted, causing smoke and flames which could
have scattered (Tr. 358-360). The mine did not have a history of

739

methane liberation· (Tr. 335). The inspector did not detect any
methane (Tr. 367). Float coal dust would have to be suspended in
the air before an explosion could have ·occurred (Tr. 367). There
was not a high quantity of dust in the air, a fact attributable to
the ventilation (Tr. 367-368). A 10-pound fire extinguisher and a
sprinkler-type fire suppression system were located at the belt head
(Tr. 372). Part of it was operable and part of it was not (Tr. 372).
There was at least one fire hose outlet present in this area (Tr.
377).
The inspector did not remember whether the coal falling into the
surge bin was wet (Tr. 324). To the best of his recollection, the
area in which the accumulations were observed was not wet in any
places (Tr. 36~).
The area had been rock dusted at some point in time (Tr. 319320, 339). Float dust or coal dust was atop the rock dust (Tr. 319320, 368). Based on the depth and extent of the float coal dust,
the inspector expressed the opinipn that no rock dusting had been
done in the area during the day shift prior to his arrival on the
scene (Tr. 379, 382). However, he had no personal, firsthand knowledge as to whether cleaning or rock dusting had occurred (Tr. 382).
He did not know how often the belt areas were rock dusted at the
Meadow River No. 1 Mine (Tr. 379).
The inspector did not recall any written procedure in effect at
the mine for dealing with float coal dust (Tr. 378-379). He testified
that the operator's cleanup program pertains to cleanup and rock dusting primarily on the section. The only written cleanup program he
had seen pertained to the face area. He thought the belts were
cleaned .as needed (Tr. 339-340). He was certain that beltmen were
assigned to maintain the belt areas, a duty which included cleanup
as necessary (Tr. 340).
In his opinion, the belt area was an active working place in
the mine. People worked in the area examining the· belts and making
repairs (Tr. 336).
The foregoing is a summary of the testimony in the record when
the Respondent moved to dismiss.
30 CFR 75.400 states: "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."
. The term "active workings" is defined as "any place in a coal
mine where miners are normally required to work or travel." 30 CFR
75.2(g)(4).

740

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD
par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196,
1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations
Appeals held that the mere presence of a deposit or accumulation of
coal dust or other combustible materials in active workings of a coal
mine is not, by itself, a violation.
The elements of MSHA's prima facie case, as set forth in Old
Ben, are:
(1) that an accumulation of combustible material
existed in the active workings, or on electrical equipment
in active workings of a coal mine;
(2) that the coal mine operator was aware, or by the
exercise of due diligence and concern for the safety Of the
miners, should have been aware of the existence of such
accumulation; and

(3) that the operator failed to clean up such accumulation, or failed to undertake to clean it up, within a
reasonable time after discovery, or, within a reasonable
time after discovery should have been made.
8 IBMA at 114-115.
The Respondent argues that Old Ben imposes upon Federal coal mine
inspectors a specific duty to make inquiries as to the cleanup program
in effect at.the mine, and a duty to determine when the regular cleanup
would occur (Tr. 384). The Respondent further contends that inspectors must determine that the accumulation is unusual, that the operator willfully failed to record the accumulations in the preshift books,
that the mine operator has been negligent in failing to clean up the
area, and must establish that the lack of cleanup is unusual (Tr.
384). I disagree.
The key elements for establishing a prima facie case are that
the operator failed to undertake cleanup operations within a reasonable time after he either knew or should have known of the accumulations' existence. According to the Board:
Application of this time factor necessarily imposes a
responsibility upon the coal mine inspectors to ascertain,
before issuing a citation under 30 CFR 75.400, the time
when the operator or its agents discovered, actually or
constructively, the existence of the accumulation of combustibles. This may be done by the use of logical conclusions drawn from the circumstantial evidence. An
easier method might be, however, simply asking the miners
and foremen familiar wi.th the mining operations in the

741

active workings when and how the accumulation occurred and
when and how, if at all, it was discovered. It is, of
course, also important that the inspectors further ascertain what was done by the operator, if anything, after
discovery of the accumulation. Did the operator immediately undertake to clean up the accumulation? Was it
ignored completely? Was the operator aware of the accumulation, but, rightly or wrongly, decided that it should
be handled routinely through the regular cleanup program?
All of these questions need due consideration and resolution before deciding to issue a citation charging a violation of the subject standard. If the inspector does
decide to issue such a citation, his determinations with
:i;.egard to time of discovery a·nd time of inauguration of
cleanup by the operator, it seems to us, are key elements
of, and should be included in, the factual description of
the conditions and practices which are alleged to consti·tute a violation. In making these detailed factual evaluations, the inspectors, hopefully, will not lose sight of
the controlling inquiry under section 304(a) of the Act whether the operator is making every reasonable effort to
minimizing the accumulations of combustible material.
8 IBMA at 113-114.
A cursory reading of this passage from the Board's decision' in
Old Ben could lead to the conclusion that it imposes upon the inspector the unqualified duty to direct specific inquiries to mine
employees as to these areas before issuing a "citation." 7/ This
question was resolved subsequently by the Board.. On September 23,
1977, MSHA filed a motion for reconsideration of the Board's decision in Old Ben. In the course of its memorandum opinion denying
the motion, the Board stated:
[W]e refer counsel to our decision (8 IBMA 113-14) which
sets out in very elementary terms the manner in which an
inspector might go about collecting his evidence. We do
not feel that this direction to the inspectors is unreasonable or that it will render the inspectors' job impossible. On the contrary, we strongly feel that t.his
7/ The use of the term "citation" in Old Ben can be misleading. Old
Ben was decided under the Federal Coal Mine Health and Safety Act Of
1969. The term "citation" had no specific meaning, as the 1969 Act
referred to "notices" and "orders." However, under section 104 of
the Federal Mine Safety and Health Act of 1977, the term "citation"
is used to describe what had been referred to previously as a
"notice."

742

simply provides a useful guideline for the MESA [MSHA]
inspector and, if properly utilized, would go a long way
toward making the mines safer and the operators more aware
of their obligations under the standard set forth in Section 304(a) of the Act. [Emphasis added.]
8 IBMA at 199.
The underlined portions of this passage indicate that the statements made at 8 IBMA 113-114 were merely suggested guidelines, not
commands. Additionally, the Board had stated that inspectors could
base their determinations of the operator's actual or constructive
knowledge of the presence of ~ombustible accumulations in active
workings on logical conclusions drawn from circumstanti-al evidence.
The evidence set forth above reveals a logical basis for the inspector's conclusion that the operator had constructive knowledge of the
accumulations' presence. The evidence also reveals that the inspector gave an opinion as an expert that the accumulations, which were
extensive, had existed for more than one shift. Based upon this, it
appeared at that stage of the case that the operator had failed to
clean up the accumulations within a reasonable time after it should
have known of them.
Accordingly, on the facts and the law as set forth herein, the
motion to dismiss is DENIED.
2.

Occurrence of Violation

At the conclusion of Inspector Baker's testimony, which is set
forth in Part V(D)(l), supra, Mr. Darrell Pomeroy, the union conveyor
belt examiner for Sewell Coal Company, appeared.as a witness for the
Respondent. Although Mr. Pomeroy was not charged by the Respondent
with the duty of removing accumulations, he-was required to conduct
examinations and report problems.
Mr. Pomeroy had examined the preshift books on the surface to
determine whether any areas needed checking (Tr. 395, 405). He
examined the belt examiner's report filled out by the belt examiner
on duty during the prior shift (Tr. 395, Exh. 0-4A). It noted spillage at the No. 2 tailpiece and noted the need for rock dusting at
the No. 3 belt head (Tr. 405, Exh. 0-4A). The report did not note
any problems in the areas cited by the order of withdrawal. The
belt examiner's report filed at the conclusion of the 4 p.m.-12 midnight shift, February 16, 1977 (Exh. 0-4 also indicates the absence
of problems in the area in question).
He viewed the area in question at approximately 8:10 a.m. on
February 17, 1977 (Tr. 390-391'). The slope bottom was well rock
dusted (Tr. 391). The pipes in the area had been sprayed with
water, but had not been rock dusted (Tr. 391). He testified that

143

the area adjacent to the surge bin was dry, but that the area was
wet from 40 feet behind belt drive No. 1 "on up" (Tr. 392).
Mr. Pomeroy testified that the accumulations cited by the inspector had to have occurred between 8 and 11 a.m. because they were not
present when he examined the area at 8:10 a.m. (Tr. 391, 407).
According to Mr. Pomeroy, the Respondent had a cleanup program
in effect on February 17, 1977 (Exh. 0-3). The cleanup program
stated, in pertinent part, as follows:
2.

Program for cleaning mine belts:
On day shift we will have one man examining belts, three
men will clean belts where needed now. After we get the
belts fairly cleaned throughout the mine we will assign
certain belts to certain belt cleaners each day.
1 belt examiner on evening shift
2 belt cleaners on evening shift
2 belt cleaners on owl shift
Same prodedure [sic] will be followed on the evening and
owl shift as is being done on the day shift.

According to Mr. Pomeroy, float coal dust is handled according
to the severity of the problem. If the accumulation was such as to
pose an immediate danger, either the safety director or the mine
foreman would be contacted and the problem would be corrected as
quickly as possible. If the problem did not pose an immediate
danger, it would be noted in the belt book and alleviated during
the next shift (Tr. 406-407). In short, the area was cleaned as
often as conditions warranted (Tr. 415).
The cleanup man assigned to the area automatically carried out
the cleanup procedure (Tr. 416). The area for which he was responsible covered the slope bottom, the area around the surge bin, the
No. 1 and No. 2 belt heads, the area adjacent to the No. 1 and No. 2
belts, and the point at which the No. 3 belt dumped onto the No. 1
belt. The entire area encompasses not greater than 300 feet (Tr.
416). Rock dusting was used to handle float coal dust along the
conveyor belt (Tr. 417-418).
The elements of MSHA's prima facie case have.been set forth previously in this decision. In brief, Old Ben Coal Co, 8 IBMA 98,
84 I.D. 495, 1977-1978 OSHD par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 1977-1978 OSHD par. 22,328 (1977), held
that the mere presence of a deposit or accumulation of coal dust or

744

other combustible materials in active workings of a mine is not, by
itself, a violation. MSHA must also establish that the operator
knew or should have known of the presence of the accumulation, and
that the operator failed to clean up, or undertake to clean up, the
accumulation within a reasonable time after discovery was or·
should have been made.
There can be no doubt as to the presence 6f an accumulation of
combustible material in the active workings as described in the testimony of Inspector Baker.
A question is presented as to whether the Respondent can be
charged with knowledge of the accumulations' presence. The belt
examiner's reports filed at the conclusion of the two previous
shifts indicated an absence of problems in the subject area. The
area was free of accumulations when it was inspected by the union
belt examiner at 8:10 .a.m. on February 17, 1977, pursuant to the
cleanup plan.
However, there can be no doubt that a substantial accumulation
of float coal dust developed in the subject area between 8:10 a.m.
and 11 a.m., an accumulation sufficient in both depth and extent
for the inspector to opine that it had existed for approximately
two shifts (Tr. 371).
The testimony of both Inspector Baker and Mr. Pomeroy reveals
that the bin area posed problems as to float coal dust (Tr. 333,
410). During the course of his conversation with mine foreman
Dennis Kyle, the inspector learned that the high velocity air
coming up through the bin itself was presenting a problem in the
subject area (Tr. 333, 338). The air came from a leakage in the
airlock doors between the bin and the entrance to the slope (Tr.
338). There was a high velocity of air in the subject area during
the course of the inspector's examination (Tr. 368).
The testimony reveals that Respondent had been experiencing
ongolng problems with float coal dust accumulations in the subject
area of the mine as a direct consequence of high velocity air currents moving through the bin. Excessive float coal dust accumulations were a foreseeable consequence of this problem, and, as such,
the Respondent must be charged with constructive knowledge of the
presence of the float coal dust accumulation cited by the inspector
in the subject order of withdrawal. This conclusion results partly
from the fact that the extent and depth of the float coal dust was
extreme and since the management personnel knew that an unusual
problem existed at this place, it should have employed unusual
methods to combat the problem.

745

As to the issue of reasonable time, the Board stated:
As mentioned in out discussion of the responsibilities
imposed upon the coal mine operators, what constitutes a
"reasonable time" must be determined on a case-by-case
evaluation of the urgency in terms of likelihood of the
accumulation to contribute to a mine fire or to propagate
an explosion, This evaluation may well depend upon such
factors as-the mass, extent, combustibility, and volatility
of the accumulation as well as its proximity to an ignition
source.
8 IBMA at 115.
The Board further stated:
With respect to the small, but inevitable aggregations
of combustible materials that accompany the ordinary, routine
or-normal mining operation, it is our view that the maintenance of a regular cleanup program, which would incorporate
from one cleanup after two or three production shifts to
several cleanups per production shift, depending upon the
volume of production involved, might well satisfy the
requirements of the standard. On the other hand, where an
operator encounters roof falls, or other out-of-the-ordinary
spills, we believe the operator is obliged to clean up the
combustibles promptly upon discovery. Prompt cleanup
response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the
most crucial of all the obligations ,imposed by the Act upon
a coal mine operator to protect the safety of the miners.
8 IBMA at 111.

In a subsequent opinion, Old Ben Coal Company, 8 IBMA 196, 19771978 OSHD par. 22,328 (1977) (denying Government's motion for reconsideration), the Board stated;
A small accumulation is most probably suitable for
elimination in the course of the operator's regular cleanup
program, Proof of the absence of such a program, together
with the presence of any accumulation might well alone support a citation for violation of Section 304(a)', If the
accumulation is of such size or combustibility as to
present the possibility of a serious safety hazard, then,
of course, the operator is required to take more urgent
steps, other than by regular cleanup, in eliminating the
hazard. [Emphasis in original.]
8 IBMA at 198.

746

The foreseeability of the problem, coupled with the testimony
describing the operation of the cleanup plan, reveal that the
cleanup plan in effect on February 17, 1977, was inadequate to deal
with float coal dust accumulations in the subject area of the mine.
The fact that a cleanup man had been assigned to a territory which
encompassed the subject area does not, by itself, indicate that the
plan was adequate (Tr. 416). In fact, the testimony of Mr. Pomeroy
reveals that the cleanup man's activities were not adequately supervised. According to Mr. Pomeroy:

Q.

And who is it that does the cleanup on your

shift?
A.

John McClung.

He's a belt cleaner.

Q.

And the foreman directs him to do this?

A. He don't have to direct him. It's just our
procedure. He knows what he's supposed to do. That's
his area.
(Tr. 415-416).
The inadequacy of the cleanup plan, the depth and extent of the
accumulation, the explosive potential of float coal dust, and the
proximity of the accumulation to potential sources of ignition, all
indicate that the float coal dust accumulation cited by the inspector was present for more than a reasonable time.
Accordingly, it is found that the occurrence of the violation
described in Order No. 7-0187 (1 HRB), has been. established by a
preponderance of the evidence. 29 CFR 2700.48.
3.

Gravity of the Violation

During the course of the hearing, official notice was taken of
the fact that float coal dust in underground coal mines is recognized as a serious problem because of the potential for explosions
(Tr. 357). 'The evidence reveals that the accumulations were heaviest
near the bin, tapering to a virtually unmeasurable depth the farther
one proceeded from the bin. The area.was dry up to a point 40 feet
from the bin, the remainder of the area cited in the order of withdrawal was wet (Tr. 392). The accumulations were sitting atop rockdusted surfaces (Tr. 319-320, 337, 368). It was at least 1,000 feet
to the nearest working face (Tr. 337). The belt conveyor drive was
identified as a possible ignition source (Tr. 334). The track trolley
wire also was identified as a possible ignition source (Tr. 339, 380381), but it was 35.to 50 feet away from the accumulations (Tr. 381).
The inspector classified the probability of ignition from the trolley
wire as remote (Tr. 381). There was not a great quantity of float

747

coal dust in the air, a fact attributable to the ventilation (Tr.
367-368). The mine did not have a history of methane liberation
(Tr. 335), and the inspector did not detect any methane (Tr. 367).
A 10-pound fire extinguisher and a sprinkler-type fire suppression
system were located at the belt head (Tr. 372). Part of it was
operable and part of it was not (Tr. 372). There was at least
one fire hose outlet present in the area (Tr. 377).
The belt was in operation when the inspection was made (Tr.
326), and coal production was underway (Tr. 326). The inspector
could not recall whether any miners were working in the general
area (Tr. 335). However, he stated that an explosion would have
endangered anyone in the immediate area (Tr. 343).
According to the inspector, a serious mine explosion could have
affected the entire mine. The stoppings could have been blown out
thus interrupting the ventilation. A major interruption of the
ventilation system is very serious because it can scatter both smoke
and flames (Tr. 358, 360).
On the basis of the foregoing, it is found that the violation
was serious.

4.

Negligence of the Operator

It is found, as set forth in Part V(D)(2), supra, that the
Respondent had constructive knowledge of the accumulations' presence.
This fact, coupled with the inadequacy of the cleanup plan, and the
fact that management knew that the area in question posed a real
problem, but obviously didn't use sufficient means to solve the
problem quickly enough, reveals that the Respondent demonstrated
considerably more than ordinary negligence.
5.

Good Faith in Securing Rapid Abatement

The order of withdrawal was issued at 11 a.m. and terminated at
1:30 p.m. on November 17, 1977 (Exhs. M-14,-M-15, Tr. 331). The
Respondent commenced abatement procedures immediately, and assigned
two section crews to the task (Tr. 365).
Accordingly, it is found that the Respondent demonstrated good
faith in securing rapid abatement of the violation.
VI.

Size of Operator's Business

The Pittston Company produces approximately 12,036,974 tons
of coal per year (Tr. 14). The Meadow River No. 1 Mine produces
approximately 154,797 tons of coal per year (Tr. 14). The Meadow
River No. 1 Mine is operated by the Sewell Coal Company (Part
(V)(A)(2)(a)), a member of the Pittston group.

748

VII.

Effect on Operator's Ability to Continue in Business

The Respondent introduced no evidence indicating that an assessment in this case would adversely affect the Respondent's ability to
continue in business. The Interior Board of Mine Operations Appeals
has held that evidence relating to whether a penalty will affect the
ability of the operator to remain in business is within the opera~
tor's control, and therefore, there is a presumption that the operator will not be so affected. Hall Coal Company, 1 IBMA 175, 79 I.D.
668, 1971-1973 OSHD par. 15,380 (1972). I find, therefore, that penalties otherwise properly assessed in this proceeding will not impair
the operator's ability to continue in business.
VIII.

History of Previous Violations
30 CFR
Standard
All sections
75.200
75.400
75.1100-3

(Note:

Year 1
2/17/75 - 2/16/76

Year 2
2/17/76 - 2/17/77

Total

411
41
44
7

62&
49
101
11

1,039
90
145
18

All figures are approximations.)

As relates to the Meadow River No. 1 Mine, the opera~or had paid
assessments for approximately 1,039 violations of regulations in the
24 months preceding February 17, 1977. Approximately 411 of these
paid assessments were for violations cited between February 17, 1975,
and February 16, 1976. Approximately 628 or these paid assessments
were for violations cited between February 17, 1976, and February 17,
1977.
The operator paid assessments for approximately 90 viclations of
30 CFR 75.200 in the 24 months preceding February 17, 1977. Approximately 41 of these paid assessments were for violations cited between
February 17, 1975, and February 16, 1976. Approximately 49 of these
paid assessments were for violations cited between February 17, 1976,
and February 17, 1977.
The operator paid assessments for approximately 145 violations
of 30 CFR 75.400 in the 24 months preceding February 17, 1977.
Approximately 44 of these paid assessments were for violations cited
between February 17, 1975, and February 16, 1976. Approximately
· 101 of these· paid assessments were for violations cited between
February 17, 1976, and February 17, 1977.
The operator paid assessments for approximately 18 violations of
30 CFR 75.1100-3 during the 24 months preceding February 17, 1977.
Approximately seven of these paid assessments were for violations cited

749

between February 17, 1975, and February 16, 1976. Approximately 11 of
these paid assessments were for violations cited between February 17,
1976, and February 17, 1977. ·
In accordance with the ruling in Peggs Run Coal Company, 5 IBHA
144, 150, 82 I.D. 445, 1975-1976 OSHD par. 20,001 (1975), no consideration will be given to any violations occurring subsequent to the
respective dates of violations involved in this case.
IX.

Conclusions of Law

1. Sewell Coal Company and its Meadow River No. 1 Mine have been
subject to the provisions of the 1969 Coal Act and 1977 Mine Act during the respective periods involved in this proceeding.

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the partie-s to, this proceeding.
3. MSHA inspectors Sidney E. Valentine and Henry R. Baker were
duly authorized representatives of the Secretary of Labor at all
times relevant to the issuance of the orders of withdrawal which are
the subject matter of this proceeding.
4. The violations charged in Order No. 7-0041 (1 SEV),
February 1, 1977, 30 CFR 75.1100-3, Order No. 7-0042 (2 SEV),
February 1, 1977, 30 CFR 75.1100-3 and Order No. 7-0187 (1 HRB),
February 17, 1977, 30 CFR 75.400 are found to have occurred.
5. Petitioner has failed to establish a violation of 30 CFR
75.200 as relates to Order No. 7-0140 (1 HRB), February 15, 1977.
6. The oral motions made by the Respondent during the course
of the hearing are denied as contrary to the law or the facts.
7. All of the conclusions of law set forth in Part V of this
decision are reaffirmed and incorporated herein.
X.

Proposed Findings of Fact and Conclusions of La.w

MSHA and Sewell submitted posthearing briefs. MSHA submitted a
response to the proposed findings of fact and conclusions of law
advanced by Sewell in its posthearing briefs. Such briefs, insofar
as they can be considered to have contained proposed findings and
conclusions, have been considered fully, and except to the extent
that such findings and conclusions have been expressJy or impliedly
affirmed in this decision, they are rejected on the ground that they
are, in whole or in part, contrary to the facts and law or because
they are immaterial to the decision in this case.

750

XI.

Penalties Assessed

Upon consideration of the entire record in this case and the
foregoing findings of fact and conclusions of law, I find that
assessment of penalties is warranted as follows:
Order No.
7-0041 (1 SEV)
( 2 SEV)
7-0187 (1 HRB)
7-001~2

Date

30 CFR
Standard ·

02/01/77
02/01/77
02/17 /77

75 .1100-3
75 .1100-3
75.400

Penalty
$

300
300
5,000

$5,600
XII.

Approval of Settlement

As mentioned in Part I, supra, the Mine Safety and Health Administration (MSHA) filed a petition for assessment of civil penalties
pursuant to section llO(a) of the· Federal Mine Safety and Health Act
of 1977 (Act) in the -above-captioned proceeding in April of 1978.
Su.bsequent thereto, the proceeding was set for hearing. At the time
of the hearing, counsel for both parties proposed settlements as to
penalty assessments to be paid by Respondent as to the four alleged
violations involved.
During the hearing, stipulations were entered into as to the
annual tonnage of the Respondent and the individual mine. These
stipulations are contained in the transcript. Exhibit No. M-1 contains a history of violations for which the Respondent had paid
penalty assessments relating to the Meadow River· No. 1 Mine.
Exhibit Nos. M-2, M-3, M-3A, M-4, M-5, M-5A, M-5B, M-10, M-lOA,
M-11, M-16, M-16A, M-16B, M-7, 0-1, and 0-2, were filed in the case
file in conjunction with the proposed settlements. These documents
include orders issued by inspectors and Office of Assessments' narrative statements describing the alleged violations and the reasons
given by that office for the special assessments recommended in each
case. In addition, these exhibits contain statements by the inspectors as to the negligence of the operator, the gravity of the alleged
violations, and the good faith of the Respondent relating to abatement
of the alleged violations. These exhibits also contain a form filled
out by the Pittston Company, similar to an inspector's statement, and
two statements outlining the Respondent's defenses with respect to
two of the orders.
During the course of the hearing-,· counsel ·for both parties set
forth reasons on the record as to why the penalty assessments should
be in the amounts agreed to rather than the amounts set forth
originally by the Office of Assessments. Each {ndividual order of
withdrawal will be set forth separately below.

751

Order .No. 7-0012 (1 HRB) , January 2 7, 19 77, 30 CFR 75 .400
Proposed assessment:

$6,000.

Proposed settlement:

$4,500.

Of significant consideration to a settlement, are the following
statements of counsel made at the hearing:
MR. O'DONNELL: All right. The first one is Section
104(c)(2) Order of Withdrawal No. 1 HRB, which has been given
by the Assessments Office the number of 7-12 and issued
January 27, 1977. It cites 30 CFR 75.400. The Office of
Assessments proposed a penalty for this of six thousand
dollars. The primary reason that the Office of the Solicitor is recommending that the penalty be reduced or a penalty
be accepted of four thousand ·five hundred dollars is because
we consider the six thousand dollar penalty to be excessive
for the facts.
Pittston has also suggested and would offer testimony,
if there were a hearing, that the accumulations resulted
from normal operations and that the thirty inches of accumulations were mostly in isolated locations and that there
was a scoop that would go down on charge from continuous
running and as a result it could not be used in the
clean-up program as planned.
We would point out that the ventilation was good and
that the area was provided with operable fire suppression
devices. There was a water hose and there were fire
extinguishers and rock dust present. There were no permissible violations found by the inspector.on that day
and the section does provide two smokefree escapeways.
The accumulations were mostly loose coal rather than float
coal dust and no analysis was taken by the inspector and
we are of the opinion that the four thousand five hundred
dollars is a reasonable penalty for this alleged violation.
(Tr. 4-5).
Also of significant consideration to a settlement, are the
following statements contained in MSHA's second posthearing brief,
filed March 22, 1979:
§ 104(c) (2) Order of Withdrawal No. 1 HRB .(7-12) which
issued on January 27, 1977, citing 30 CFR 75.400 (Government
Exhibit No. M-2), the parties agreed to settle, subject to
the approval of the Administrative Law Judge ("Judge") for
a civil penalty in the amount of $4,500.00 (Tr. 4-1). The
Assessment Office had proposed a civil penalty of $6,000.00,

752

which the Office of the Solicitor deems excessive considering that the ventilation was adequate and the area was provided with operable fire suppression devices and a water
hose, fire extinguishers and rock dust. There were no permissible violations found by the issuing Inspector, who was
in the hearing room when the settlement offer was submitted
by both counsels to the Judge. The Mine Operator would, if
a hearing were held, offer sworn testimony that the accumulation was the result of normal mining operations, and much
of it was in isolated areas of the mine. The accumulation
resulted when the battery on a mine scoop discharged after
continuous operation, so the scoop could not then be used
in the manner provided by the clean-up program. The accumulation was loose coal and not float coal dust. Government
Exhibit No. M-1 was offered and received in evidence and it
is a computer printout showing paid violations issued against
the Meadow River No. 1 Mine from January 1, 1970, until
February 17, 1977. The document shows 1, 134 v_iolat ions during that period, including at pages 12 through 15 thereof a
total of 148 violations of 30 CFR 75.400. The Office of the
Solicitor considers the violation serious, the result of
normal negligence, that the Mine Operator is a large company
and can afford to pay the penalty without having its business adversely affected, that there were a substantial number of prior similar violations, and abatement was done with
a normal degree of good faith. The Office of the Solicitor
deems a $4,500.00 civil penalty to be an adequate and reasonable penalty under the facts shown.
Order No. 7-0024 (1 SEV), January 28, 1977, 30 CFR 75.400
Proposed assessment:

~7,500.

Proposed settlement:

$4,500.

Of significant consideration to a settlement, are the following
statements by counsel:
MR. O'DONNELL: The original assessment in that proceeding, Your Honor, was seven thousand five hundred dollars
and Mr. Callahan and I have agreed to settle this for four
thousand five hundred dollars. My primary reason in that
one is the same as before, that I consider seven thousand
five hundred dollars to be excessively high concerning the
facts that there were no injuries whatsoever and so on.
Pittston has offered this information which they
consider to be mitigating circumstances, that-the
fourteen inches of accumulation was mostly in isolated
places along the coal ribs, whereas the roadways were not
excessively dirty. The roadways had been scooped and
processed, but the coal hadn't built up along the ribs.

753

The entry would have been cleaned up on cycle, but the
loader had been mechanically down prior to this time.
The section is relatively new in development and was
clean. The clean-up is done mostly with a loader and with
a shovel. However, the scoop was removed from the No. 3
and No. 1 units for clean-up when that scoop was operable.
The section again provides two smokefree e·scapeways. The
roadways and ribs are rock dusted and a water hose and
other fire fighting equipment are provided. All the
equipment except the loader was provided with operable
fire suppression devices and they are of the opinion that
the loose coal consisted mostly of material which was
pushed into the face of the No. 3 entry. We would agree
about the fire fighting equipment, and when I say "we" I
mean MSHA, of course.
So we are of the opinion that four thousand five
hundred dollars is a substantial penalty and that it is a
reasonable penalty for this violation.
JUDGE COOK:
Mr. Callahan?

is there anything you wish to add,

MR. CALLAHAN:

No, Your Honor.

JUDGE COOK: I notice, Mr. O'Donnell, just as a matter
of information, on the second sheet of Exhibit M-4 there's
mention of some hydraulic oil.
MR. O'DONNELL: Yes, there was an accumulation of
hydraulic oil from a mechanical failure and repairs were
made on the equipment. The hydraulic oil had been
deposited on the mine bottom a short time prior to the
issuance of the order of withdrawal.
MR. CALLAHAN: Your Honor, if I may add to that.
There was a breakdown of a piece of equipment at that
precise point and that's what had happened. It lost some
hydraulic oil due to the breakdown.
JUDGE COOK: All right. So considering all these
facts, Mr. O'Donnell, you feel that a penalty of fortyfive hundred dollars is proper in this case?
~..R.

O'DONNELL:

I do, Your Honor.

754

Order No. 7-0045 (2 HRB), February 1, 1977, 30 CFR 75.400
Proposed assessment:

$8,000.

Proposed settlement:

$5,000.

Of significant consideration to a settlement, are the following
statements by counsel:

MR. O'DONNELL: This would be the same day, February 1,
1977. And at this time Inspector Baker observed loose coal
and coal dust ranging in the depths indicated in this Order
of Withdrawal -- and he is here in the hearing room today,
I might add, prepared to testify -- and the gravity would
be lessened because of the lack of production in the mine.
~owever, there ~ere miners in the mine at that time.
(Tr. 305).

*

*

*

*

*

*

*

MR. O'DONNELL: It is often the Solicitor's primary
position in entering into this settlement that the eight
thousand dollars proposed by the office of assessments is
excessive, and we have agreed to accept five thousand
dollars as the proposed assessment for this.
We do consider it to be a serious violation, but we
do feel that the fact the mine was not producing is important. And we recognize that there was, from a negligence
point of view, a problem. They had these pipes and the
men were working on them and they had this excessively
cold weather. I believe the testimony was· it was way,
way below zero on this day. In fact, colder than I
realized West Virginia got. And this, of course, caused
them a problem as to manpower and on the whole, for these
reasons, we feel five thousand dollars would be ·a reasonable settlement.
JUDGE COOK:

All right.

Mr. Callahan, what is your position?
MR. CALLAHAN: Your Honor, we have discussed this
thoroughly with the Solicitor, and we have come to the
agreement that that would be a fair and acceptable settlement for this violation.
JUDGE COOK:

Very well.

(Tr. 307-308).

755

Order No.· 7-0209 (1 FLD), March 7, 1977, 30 CFR 75 .400
Proposed assessment:

$5,000.

Proposed settlement:

$3,000.

Of significant consideration to a settlement, are the following
statements by counsel:
MR. O'DONNELL: Now, concerning this alleged violation,
the assessment office suggested a civil penalty of five
thousand dollars for it.
Pittston would show that it does a section cleanup on
a regular basis, the loose coal being pushed into the face
area and loaded out on cycle. If the face areas are not
permanently supported with roof bolts, the cleanup cannot
be done until the areas are supported. And that is their
position in this case, that they had done all that they
could until the roof was supported.
It will be Mr. Dickerson's position they did not need
to push it into .the face. They could have cleaned it up
without doing that. Pittston has offered a suggested penalty of three thousand dollars for that in lieu of the
five thousand dollars suggested by the assessment office.
Our primary position -- when I say our, I mean the
Office of the Solicitor -- is that three thousand dollars
is a reasonable penalty for that considering the quantity
of coal involved and the fact that there was no, what we
would consider to be a. serious violation. And we feel,
as we say, the chief difference I believe in the testimony
between Pittston and ourselves would be in the manner of
cleanup there; did they have to push it into the face or
could they clean it up previously.
(Tr. 311).

*

*

*

*

*

*

*

JUDGE COOK: All right. Now, Mr. Callahan, did you
have anything else to offer, or do you have anything to
say concerning this proposed settlement?
MR. CAT,LAHAN: No, Your Honor, I have nothing further.
I believe the record is f.airly complete on this matter.
JUDGE COOK:
settlement?

What is your position as to .the

756

MR. CALLAHAN: As I stated, with both settlements,
Your Honor, we believe the Solicitor and I have arrived
at a fair arid reasonable settlement.
We both agree the original proposed penalties were
excessive due to the nature of the violation and that,
although there may be conflict as to whether the violation occurred and as to the seriousness of the violation,
given the amount we have agreed upon, we believe it is a
fair and reasonable settlement.
(Tr. 316).
This information set forth in the record, along with the information provided as to the statutory criteria contain€i in section 110
of the 1977 Act, has provided a full disclosure of the nature of the
settlements and the basis for the original determinations. Thus, the
parties have complied with the intent of the law that settlements be
a matter of public record.
In view of the reasons given above by counsel for the proposed
settlements, and in view of the disclosure as to the elements constituting the foundation for the statutory criteria, it appears that
a disposition approving the settlements will adequately protect the
public interest.
ORDER
Accordingly, IT IS ORDERED that the settlement, as outlined in
Part XII of this decision, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that Respondent pay the penalties assessed
in the amount of $22,600, within 30 days of the date of this decision,
which figure .represents the sume of the agreed-upon penalty of $17,000
assessed pursuant to the settlement agreement, and the $5,600 penalty
assessed in the contested portion of this proceeding.
IT IS FURTHER ORDERED that the petition herein is DISMISSED as
it relates to an alleged violation of 30 CFR 75.200, Order No. 7-0140
(1 HRB), February 15, 1977. - ·

~
c:..___

J:;J;n F. Cook
Administrative Law Judge

Issued:

June 29, 1979

757

FEDERAL MINE SAFETY AND HEALT&-t REV!EW COMMISSION
OFFICE Of ADMINISTt~ATiVE LAW ,llJDGES
4015 WILSON BOIJLEVAF~O
ARLINGTON, VIRG !NIA 22203

June 29, 1979

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

Civil Penalty Proceeding
Docket No. DENV 78-525~P
A.O. No. 42-00121-02042V

v.
Deer Creek Mine
AMERICAN COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley and Phyllis K. Caldwell, Trial
Attorneys, Regional Office of the Solicitor,
Department of Labor; for Petitioner;
Patrick Garver and James B. Lee, Parsons, Behle
& Latimer, Salt Lake City, Utah, for Respondent.

Before:

Judge Littlefield

Introduction
This is a proceeding for assessment of a civil penalty against
the Respondent and is governed by section llO(a) of the Federal Mine
Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9,
1977), and section 109(a)(l) of the Federal Coal Mine Health and
Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969).
Section llO(a) provides as follows:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or
who violates any other provision of this Act, shall be
assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation.
Each occurrence of a violat;_ion of a____m_andamr~he.altb or.
safety standard may consititute a separate offense.
Section 109(a)(l) provides as follows:
The operator of a coal mine in which a violation
occurs of a mandatory health or safety standard or who

758

violates any other provision of thi~ Act, except the
provisions of title 4, shall be assessed a civil penalty
by the Secretary under paragraph (3) of this subsection
which penalty shall not be more than $10,000 for each
such violation. Each occurrence of a violation of a
mandatory health or safety standard may constitute a
sc;arate offense. In determining the amount of the
penalty, the Setretary shall consider th~ operator's
histoLy 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 operator charged in attempting to achieve
rapid compliance after notification of a violation.
Petition
On August 2, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed petitions for assessment of
civil penalties charging 2 violations of the Act.
Response
On August 17, 1978, Respondent filed a detailed answer denying
the allegations and requesting hearing thereon.
Tribunal
Hearings were held in Salt Lake City, Utah, on April 11, 1979.
Both Petitioner and Respondent were represented by counsel (Tr. 3).
Posthearing briefs were submitted by both counsel. 3/
Issues Presented
1. Whether the conditions observed in Respondent's Deer Creek
Mine on August 31, 1977, and October 27, 1977, constituted violations
of 30 CFR 75.200.

2. Assuming a violation of 30 CFR 75.200 is established in either
or both notices, what is the appropriate penalty to be imposed?
1/ Statutory successor-in-interest to the Mining Enforcement and
Safety Administration (MESA).
2/ The briefs of Petitioner and Respondent are sufficiently well
det~iled and specific in transcript citation support to preclude the
necessity of a general presentation of evidence here. It should be
noted that Respondent actually filed two separate briefs one on each
violation.

759

Discussion
A.

1 LJG, August 31, 1979

The first ~otice charges a violation of the roof control plan
in that:
The approved roof control plan was not being complied
with in the right entry in the 4 East Section in that
temporary supports were not installed to within 5 feet of
the face to provide protection to the miners making
required tests. The roof bolting machine was present in
the working place and roof-bolting had been performed.
The roof control plan is incorporated as a mandatory standard
through 30 CFR 75.200 which provides:
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof control
system of each coal mine and the means and measures to
accomplish such system. The roof and ribs of all
active underground roadways, travelways, and working
places shall be supported or otherwise controlled
adequately to protect persons from falls of the roof
or ribs. A roof control plan and revisions thereof
suitable to the roof conditions and mining system of
each coal mine and approved by the Secretary shall be
adopted and set out in printed form on or before May 29,
1970. The plan shall show the type of support and
spacing approved by the Secretary. Such plan shall be
reviewed periodically, at least every 6 months by the
Secretary, taking to into consideration any falls of
roof or ribs or inadequacy of support of roof or ribs.
No person shall proceed beyond the last permanent
support unless adequate temporary support is provided
or unless such temporary support is not required under
the approved roof control plan and the absence of such
support will not pose a hazard to the miners. A copy
of the plan shall be furnished to the Secretary or his
authorized.representative and shall be availabie to the
miners and their representatives.
The relevant portion of the plan is-Exhibit fr (eovt. Exh. G-1;
Brief of MSHA at 1). The thrust of Petitioner's argument is that a
man must have entered inby permanent support to make required methane
tests (Brief of MSHA at 2-3). MSHA has no eyewitnesses who testified
that anyone went inby support. Instead MSHA draws an inference that
because methane testing is required, before electrical equipment is
energized, that the tester must have entered inby permanent support
to make the test. (Brief of MSHA at 3).

760

The prov1s1on which MSHA believed requ~red testing in an area
that was unsupported is 30 CFR 75.307-1 which states:
Methane examination at face. An examination for
methane shall be made at the face of each working place
during each shift and innnediately prior to the entry of
such electrical equipment into any.working place. Until
December 31, 1970, a permissible flame safety lamp may
be used to make tests for methane required by the regulations in this part. On and after December 31, 1970, a
methane detector approved by the Secretary shall be used
for such tests and a permissible flame safety lamp may
be used as a supplementary testing device.
Respondent introduced Respondent's exhibit No. 3
a policy
directive received by the Price Office of MESA on December 10, 1976,
and received by the Respondent on October 7, 1974 (Tr. 151-152f.
There was no evidence that such directive was not in force at the
mine. The directive provides:
Tests for methane in working places shall be made
as near the face as possible, but without.exposing the
examiner beyond permanent roof support or temporary roof
support that was set for another purpose. If it is
determined that the potential for face ignitions or
explosions in a mine require that such tests be made
closer to the face than described above, the gas testing
procedure will be described in the approved ventilation
plan, and the roof control plan will provide for special
support to protect the examiner. [Emphasis supplied.]
(Respondent's Exh. 3).
As the directive states that the methane tester is not required
to go inby support, no inference will be drawn that he did go inby
support. Therefore, MSHA must show that what would appear to a
reasonable tester to be supported roof was in fact unsupported roof.
The question, in effect, is whether the hydraulic system of
support is or was approved by ~SHA (Brief of Respondent 8-10). The
initial question is what type~approval was given the Lee-Norse bolter
(see Brief of Respondent at 12). The issue with reference to this
approval assumed by Petitioner, is whether each individual roof
bolter, ATS, (Automated Temporary Support System) must be approved
for the purposes of being used for tem,forary roof support and/or
whether it must show such approval o~attached plate. (Brief of
Respondent at 12-15).
·
MSHA asserts that the machine was not approved (Brief of
Petitioner 3-4). In its brief MSHA quotes M~. Winder, the former

761

inspector superviso r 9 as saying that he would not question as policy
a requirement that a plate or label had to be attached to the machine
(Tr. 120). However, he specifically stated that it was not necessary
on this machine (Tr. 121).
1

MSHA's brief argues the wrong point. The question is not whether
MSHA had a policy of 'requiring stamps or plates marking ATS approval.
The issue is whether the roof control plan,approved by MSHA~required
such individual plated approvals. See 30 CFR 75.200-7 through
75.200-14 (Brief of Respondent at 3-14). The answer to this question
is specifically contained in letter of September 12, 1975. It states
in relevant part:
We also request permission to change our procedure
of installing temporary supports before the roof bolt
cycle is started, and to include the hydraulic safety
booms of the bolters as a means of temporary support.
It is understood that if the hydraulic boom is not used
that a timber or jack would have to be installed. Your
assistant in the approval of this supplement is greatly
appreciated.
(Respondent Exh. No. 1).
On January 9, 1976, after a period of review which ran 4 months,
MSHA approved the requested change in the following letter:
Dear Mr. Crawford:
Your requests to change the procedure of installing
temporary supports and to install resin bolts have been
reviewed. and are approved. Both procedures are appended
to the approved roof control plan for the mine.
[Emphasis added.]
(Respondent's Exh. No. 2).
If MSHA had wished to require Respondent to get approval for each
machine,it had only to tell Respondent in the above letter.
The above discussion of hydraulic safety booms makes no mention
of individual machine approval. As MSHA specifically approved the
proposed change (Respondent's Exh. No. 2), and as it could only be
implemented by using a bolter machine, and as there was no reference
to plate approval, it can not be concluded that such a plate was
necessary. In fact the opposite anaylsis is requisite. As the only
way the hydraulic temporary support system could be implemented was
by using a machine, and as no machine has been_demonstated as approved
- plrrsuc°int to tbe MSHA theory of ATS plates on individual bolters (but
~' Tr. 71-72), the District Manager, Mr. Barton, would have been in

762

the ridiculous position pf approving a nullity. Therefore, as of
January 9, 1976, the bolter syste~ was generally approved. As MSHA
has not shown any other policy decision made subsequent to that date
to have been communicated to Respondent and made a part of its roof
control plan, the policy directives within MSHA can not be made binding on the operator. Thus the presence or absence of a MSHA policy
of individual bolter approval is not relevant.
MSHA's argument that the bolters needed to be approved as stated
in Government Exhibit G-2 is of little momment. On its face the
exhibit is merely on internal memorandum between Mr. Winder and the
District Manager. It is not part of the roof control plan and it
does not even appear to have been transmitted to Respondent (Govt.
Exh. G-2; But see, Brief of MSHA at 3-4). Thus it is not binding.
Further, the approval letter of January 9, 1976 (Respondent's Exh.
No. 3), can easily be viewed as over-ruling an internal objection of
Mr. Winder. Finally, the exhibit does not specify the type of
approval envisioned (Govt. Exh. G-2). Therefore, even if the letter
were viewed as modifying the approval, a view which I specifically
reject, MSHA has still not demonstrated a requirement of placing the
plates on the bolter.
As there is no evidence that the methane tester advanced beyond
the area supported by the hydraulic system of temporary support (See
supra), and as that system was approved MESA (see Respondent's Ex~
No. 3), I conclude that MSHA has failed to demonstrate a violation of
the roof control plan on August 31, 1977. Therefore, that part of the
petitfon regarding 1 LJG, August 31, 1977, is hereby DISMISSED.
B.

6 JODL, October 27, 1977

The 104(c)(l) notice herein at issue 1 alleges a violation of
30 CFR 75.200 in that:
The approved roof control plan was not being complied
within the 4th East section in the belt and track.entry
from the feeder breaker into the face in that, approximately 13 timber were missing at spot locations on the
right side of the entry looking in the direction of the
face. The entry width averaged approximately 24 feet.
There were 2 timbers out between crosscut No. 12 and 13,
and there were 5 timbers out between crosscut No. 13 and
No. 14, 4 timbers out between crosscut No. 14 and No~ 15,
and 2 timbers out between crosscut No. 15 and the face.
The approved roof control plan calls for timbers to be
set 4 foot from the rib and on 5 foot centers in a combination belt and track entry that has a 24 feet eritry
width in order to bring the entry wi'<it-h into the recommended 20 foot width roadway.
(Govt. Exh. G-3).

763

Initially respondent argues that the roof control plan (Govt.
Exh. G-1) is not in evidence. (See Brief of Respondent note at
10-11). 3/ As the above alleged violations are charged in a single
petition~ Respondent's argument is without merit and rejected.
The issue presented is whether Respondent complied with the
roof control plan, not whether a safer system rhight arguably exist.
Respondent's argument, that the roof control plan does not logically
require replacement of knocked out support, (Brief of Respondent
at 13) is not supported. Under Respondent's theory, there would be
no way that the mine could be inspected to determine whether the plan
had been complied with. Further, under Respondent's theory, a roof
control plan would never constitute a standard by which control of
the roof could be evaluated. It is rejected. Therefore, if the plan
required timbers, and such were not maintained, a violation is
established.
For purposes of compliance with the roof control plan, the most
important factor is whether the entry was cut 24 feet or 20 feet wide.
It is conceded by Respondent's witness Mr. Johnson that the area may
have measured 24 feet (Tr. 230). However, such width is asserted to
have been the result of permissible sloughage (Tr. 230; Brief of
Respondent at 12).
There is testimony as to the width of an entry being cut 24 feet,
found in the following colloquy:
BY MS. CALDWELL:

Q. Mr. Lemon, with regard to the cut that we are
referring to in the August 31 notice, how wide was that
cut?
A. The cut was 24 feet wide, and I measured the
cuts from the bit marks in the top, and it was not rib
sloughage. Your Honor, the measurement from the bit
marks on the left rib in the top to the bit marks on the
right side was 24 feet wide, and I measured this entry
in four places up to the place that was cut 20 feet wide,
which was inby the last open cross-cut in the face of
this entry. That's where they starting narrowing this
entry down to, and this had been heave [sic] sloughed to
24 feet wide.
~(Tr. 242).
(See Brief of MSHA at 6).
]./ As referred at note 2, supra, references here are to brief of
Respondent on October 27, 1977, notice of violation.
764

In a letter dated June 20, 1979, counsel for MSHA states that
she misspoke herself by referring to the August 31, 1977, notice,
in the above quoted colloquy. 4/
MSHA counsel refers to a letter of May 30, 1979, written by
counsel for Respondent, which pointed out that no "cut to cut"
reference was made on the page cited in her brief. There in counsel
for MSHA attacks counsel for Respondent, for a failure to have "* * *
understood the intent of that testimony." As counsel for MSHA failed
to cite the proper transcript page, Tr. 167 vs. Tr. 242, it is not
surprising that counsel for Respondent did not understand the intent
of the testimony.
As this testimony is the only cited testimony on the issue of a
measured "bit mark to bit mark" width, the issue of whether it applies
to the August 31 or October 27 notice must be resolved.
Supporting a determination that it applies to the August 31,
notice, are the facts, that: (1) MSHA counsel refers to the
August 31 notice in the question (Tr. 242); and that (2) there
followed, in order, a general evidential summary for both notices
(Tr. 242-et seq.).
Supporting the conclusion that it applied to the October 27
notice are the facts that (1) the August 31, notice did not involve
entry width directly; (2) the testimony came at the end of the testimonial evidence on the October 27 notice and (3) the witness
referred to a specific narrowing down of entry width inby the measured
area. I conclude that the above-referenced testimony referred to the
October 27 notice.
Therefore, Respondent needed to meet the requirement~ of Exhibits
G, figures 1-3, not merely the requirement of Exhibit B (Govt. Exh.
G-1).
The unrebutted evidence establishes that timbers which should
have been in place pursuant to Exhibit G were not in place (Tr. 163,
195). It follows that Respondent violated the roof control plan and
30 CFR 75.200 (see, supra). That part of the petition pertaining to
notice 6 JODL, October 27, 1977, and asserting a violation is hereby
upheld. l../
4/ Counsel's above-reference letter also refers to an "October 31
citation." No such citation is at issue.
5/ As there is no .evidence tfrat Respondent filed an Application for
Review, the due process issue~moot,~. Energy Fuels Corp., FMSHRC
No. DENV 78-410 (May 1, 1979).

765

C.

Penalty Criteria

Subsection llO(i) provides, in relevant part:
In assessing civil 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.
The primary criteria issues argued by Respondent are gravity,
negligence, and prior history. (Brief of Respondent at 13-16).
1.

Size of Business

Deer Creek mirie produced about 1,205,576 tons annually and
American Coal Company, about 1,521,238 tons annually (Tr. 246).
conclude that the company is medium to large.

2.

I

Ability to Stay in Business

A penalty will not affect the operators ability to remain in
business (Tr. 246).

3.

Good Faith

The operator abated the condition with in about 45 minutes to
an hour (Tr. 225). The operator demonstrated exceptional good faith
by unnecessarily shutting down production to remedy the violation
(Tr. 223-224).
4.

Negligence

Both Mr. Lemon and Mr. O'Brien stated that the foreman knew of
the problem '(Tr. 170; 223-224). However, as the entire theory of
Respondent was that it did not believe that it was required to maintain the timbering in the entry (see supra.),and as this argument
appears, on its face, to be made in good faith, the operator can not
be found to have been negligent.
5.

Gravity

The gravity of the violation is reduced by the following factors:
extra roof bolts had been installed (Tr. 228' and the entry averaged
24 feet (Tr. 166-167). The fact that the entry averaged 24 feet
indicates that even without ·timbering and extra roof bolts the entry

766

was very close to meeting the requirements of the plan as no significant sloughage appears to have occurred (Govt. Exh. G-1, Exh. B). The
MSHA arguments on significant gravity are unpersuasive (see Brief of
MSHA at 7).
I conclude that the violation was nonserious.
6.

History of Prior Violations

The mine has a substantial history of prior violations including
10 prior violations of this section. (See Submission of MSHA, May 7,
1979). This history aggravates the size of the penalty to be assessed.
Findings of fact
All proposed findings of fact not adopted herein are specifically
rejected. Upon consideration of the record as a whole, I find:
1. The Judge has jurisdiction over the subject matter and the
parties in this proceeding;
2. A system of temporary hydraulic support using a hydraulic
boom was approved pursuant to th~ roof control plan of the mine for
use prior to August 31, 1977. (Respondent Exh. No. 1 and No. 2);
3. The evidence does not show that methane testing was done
under unsupported roof (Respondent's Exh. No. 3);

4. MSHA failed to establish the fact a violation of 30 CFR
75.200 with respect to Notice No. 1 LJG, August 31, 1977;
5. A preponderance of the evidence does establish the fact of
a violation of 30 CFR 75.200 with respect to notice No. 6 JODL,
October 27, 1977;
6.

Respondent has a substantial history of previous violations;

7.

The mine in medium to large in size;

8.

Respondent was not negligent;

9. A penalty will not affect Respondent's ability to continue
in business;
10.

The violation found"was nonserious.

11. Respondent exercised exceptional good faith in abating
the condition.·

767

Conclusions of Law
All proposed conclusions of law not adopted herein are specifically rejected.
1. This case arises under the provisions of section llO(a) of
the 1977 Act and 109(a)(l) of the 1969 Act.
2. All procedural prerequisites established in the statutes
cited above have been complied with •
. 3.
above.

Respondent· has violated "the provisions of the statute noted

4. A civil penalty must be assessed in accordance with the
provisions of the statutes cited above.
Application of Penalty
Assessment of a penalty in accordance with the criteria shown
in section llO(a) of the Act is mandatory. That section of the law
as well as all the evidence in the record bearing on the criteria and
mitigating circumstances have been considered fully.
Accordingly, Respondent is assessed the following penalty:
Notice No.

Date

6 JODL

10/27 /77

Section

Penalty

30 CFR 75.200
Total

$ 250
$ 250

ORDER
WHEREFORE IT IS ORDERED that Respondent pay the above-assessed
civil penalty in the amount of $250 within 30 days from the date of
this decision.
WHEREFORE IT IS FURTHER ORDERED that Notice No. 1 LJG, August 31,
1977, be and hereby is, DISMISSED.

~I/)

A

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Malcolm P. Littlefield:/
Administrative Law Judge

768

cil :-!';"..,...., t:··<:·t~"'ll >,.!li7;.; ~ -r~ f7I f7VH-=~v~··' co··11·".~~ 1ft':;;:.~~u~al
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OFFICE OF ADMINISTi<ATlVC. LAW JUDGES
4015 WILSON HOUL<=VARD
ARLiNGTON, VIRGINIA 22203

JUN 2 9 1979
Civil Penalty Proceeding

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

Docket No. BARB 79-122-P
A/O No. 15-03746-02037V

v.
Upper Taggart Mine
SCOTIA COAL COMPANY,
Respondent
DECISION AND ORDER APPROVING
SETTLEMENT OF CIVIL PENALTY PROCEEDING
On May 1, 1979, Petitioner filed a motion to approve settlement
in the above-captioned proceeding. Attached to and made part of this
motion were the order of assessment, the inspector's comment sheets
and the Assessed Violations History Report. The 14 violations alleged
in this case were originally assessed a penalty of $94,500. The petitions for assessment of civil penalty for two of these violations were
withdrawn due to the fact that no violation existed. As to the
remaining 12 violation the parties proposed to settle for the su~ of
$42,000. The violations and proposed penalties are as follows:
Number

Date

Assessment

Settlement

1-RDS (6-0201)
2-RDS (6-0202)
3-RDS (6-0203)
4-RDS (6-0204.)
2-RDS (6-0224)
1-JRC (6-0271)
1-RDS (6-0282)
1-RDS (6-0295)
2-RDS (6-0297)
1-RDS (6-0298)
2-RDS (6-0299)
1-LG (6-0339)
1-LG (6-0364)
1-LG (6-0399)

04/14/76
04/14/76
04/14/76
04/14/76
05/04/76
05/05/76
05/10/76
05/25/76
05/25/76
05/26/76
05/26/76
07/30/76
08/27/76
10/07/76

$ 5,000
5,000
5,000
5,000
5,000
10,000
7,500
5,000
5,000
10,000
7,000
5,000
10,000
10,000

$ 1,000
1,000
0
1,000
0
8,000
5,000
1,200
1,200
5,500
4,100
1,500
6,000
6,500

There were eight alleged violations of 30 CFR 75.1403-6 cited in
this case. In each instance, an inspector found that a vehicle used
for transportation of personnel had inoperative sanding devices. Section 75.1403-6(b)(3) requires that each track-mounted self-propelled
personnel carrier be equipped with properly ins'talled and wellmaintainecl sanding devices. Petitioner moved to withdraw two of the
alleged violations from thi°s petition. In support of this motion,

769

Petitioner asserted that Order No. 3-RDS (April 14, 1976) and Order
No. 2-RDS (May 4, 1976), involved vehicles which had been removed
from service. The sanding devices on these vehicles would have been
repaired before they were placed back in service. Accordingly, no
violation of section 75.1403-6 can be found with respect to these
two vehicles. The remaining six violation as as follows: Order
Nos. 1-RDS (April 14, 1976), No. 2-RDS (April 14, 1976), No. 4-RDS
(April 14, 1979), No. 1-RDS (May 25 1976), No. 2-RDS (May 25, 1976),
and No. 1-LG (August 30, 1976." The inspectors found that these condition should have been known to the operator because each was under
the direct observation of management. In addition, a safeguard
notice was issued at Upper Taggart on February 12, 1976, which noted
the need for operative and well-maintained sanding devices. The
Upper Taggart Mine has a record of collision between carriers resulting in injury to employees. The occurrence of the event against
which the cited standard is directed was probable and the injury
contemplated by the occurrence of the event was disabling. Between
18 and 36 workers most probably would have been injured if a collision
were to occur. The conditions were corrected after the closure orders
issued. Management took extraordinary steps to gain compliance by
assigning extra men in most instances to correct the condition.
In support of the contention that the amount of the proposed
assessment should be reduced with regards to these violations, counsel
for Petitioner asserted the following:
It should be noted that this is a very wet mine and
it is extremely difficult to keep these sanding ·devices
operative. Each alleged violation was cited while the
vehicles were on the surface and it is the Respondent's
contention that the devices would have been made operative before returning underground. Respondent has paid
penalties for six other violations of this standard
between 1970 and the dates of these violations. The
payments have ranged from $70 to $140. The settlements
in this case range from $1,000 to $1,500. Increases
were made for violations cited at each later date.
Four of the alleged violations contained herein cited a violation of 30 CFR 75.400. That section requires that combustible
materials not be permitted to accumulate.in active workings.
Order of Withdrawal No. 1-RDS (May 10, 1976), was issued after
the inspector observed excessive amounts of float coal dust in the
Nos. 5, 6 and 7 entries and connecting crosscuts. This condition was
the result of a failure to act on the part of mine personnel and
should have been known to the operator. It was improbable that the
event against which section 75.400 is directed would happen because

770

the coal dust was wet and the mine had no history of methane liberation. Twenty-two workers were exposed to the hazard. Management took
extraordinary steps to gain compliance by assigning extra men to
correct the condition.
Order of Withdrawal No. 1-RDS (May 26, 1976), was issued because
an excessive amount of float coal dust and coal was present the entire
length of the No. 1 outside belt and the connecting crosscuts
beginning at the portal and extending a distance of 1,500 feet to the
No. 2 belt drive. The condition cited resulted from the act or failure to act. of mine personnel and occurred under the direct observation
of management. The occurrence of the event against which section
75.400 is directed was probable. However, the mine does not have a
history of methane liberation. The expected result of the occurrence
of this event was disabling injury. Four miners most likely would
have been injured were the event to occur. Management took extraordinary steps to gain compliance by assigning extra men to correct
the condition.
Order No. 1-LG (August 27, 1976), was issued because float coal
dust had been deposited on rock dusted surface along the No. 3 belt
a distance of 2,000 feet and 2 to 3 tons of loose coal had accumulated
at two separate places which at one time had been loading points. The
condition cited had been recorded prior to the shift during which it
was cited and should have been known to the operator. The occurrence
of the event against which section 75.400 is directed was probable.
The injuries contemplated by the occurrence of the event ranged from
disabling to death. Twenty-four workers were exposed to the hazard.
Management took extraordinary steps to gain compliance by assigning
extra men to rock dust and clean up the accumulations.
Order No. 1-LG (October 7, 1976), was issued becau.se float coal
dust had been deposited on rock-dusted surfaces in the belt entry and
crosscuts extending a distance of 2,400 feet and loose coal had accumulated at various places throughout the area. The condition should
have been known to the operator. The occurrence of the event against
which section 75.400 is directed was probable. Fourteen men were
exposed to a hazard which might have caused disabling injury or death.
The operator took extraordinary steps to gain compliance by assigning
extra men to correct the condition.
In support of the reductions made in the proposed penalties for
these four violations of section 75.400, counsel for Petitioner
asserted the following:
Respondent has paid penalties for 75 other violations of this standard between 1970 and the dates of
these alleged violations. The payments have ranged
from $75 to $625. The settlements in this case range

771

from $-5,000 to $6,500. Increases were made for violations cited at each later date. The gravity and
negligence in the Proposed Assessment were too high
in view of the criteria set down in Old Ben Coal Co.,
8 IBMA 98 (1977).
Order No. 1-JRC (May 5 ,' 1976), was issued because a major ventilation change was made while men were working underground. On
May 4, 1976, the No. 4 entry of 1 East off 2 South was covered with
loose dust and mud which was pushed from the highwall above the entry.
After being cleared, the entry was blasted and again blocked. Approximately 40,000 cfm of air were being taken in through this entry.
The covering of this entry was a violation of 30 CFR 75.322. The
condition should have been known.to the operator. It was the result
of an act or failure to act on the part of management personnel. It
was improbable that the event against which section 75.322 is directed
would occur. Seventy five workers were exposed to the hazard. The
condition was corrected after the closure order was issued.
In support of the proposed reduction in penalty for this violation, counsel for Petitioner asserted the following: "The history of
previous violations reveals no other violations of this standard.
This was a serious violation. The negligence was ordinary. There
was an effect on mine ventilation. However, air reaching the men
underground was never dangerously low."
Order No. 2-RDS (May 26, 1976), was issued because the structure
on the No. 1 belt was not being maintained. Rollers were allowed to
deteriorate, were stuck and were being cut by the belt in various
locations. This condition was in violation of 30 CFR 75.1725. This
condition resulted from the act or failure to act of mine personnel
and occurred under the direct observation of management. The order
was issued at the same time as Order No. 1-RDS, discussed above. It
is probable that the event against which section 75.1725 is directed
would occur. Thirty five workers were exposed to the hazard. This
condition was corrected after the closure order was issued. Management took extraordinary steps to gain compliance by assigning extra
men to correct the condition.
In support of the proposed reduction in penalty for this violation, counsel for Petitioner asserted the following: "Respondent has
paid penalties for twelve other violations of this standard between
1970 and the date of this violation. The payments have ranged from
$94 to $180. The settlement in this case was $4,100. This was a
serious violation and the negligence was ordinary."
Respondent is a large operator and there is no indication on the
record that the penalties assessed herein will have an adverse affect
on Respondent's ability to remain in business.

772

In view of the above, Petitioner's motion is granted.
It is ORDERED that the settlement negotiated between MSHA and
the Respondent is hereby APPROVED.
It is further ORDERED that Respondent pay the sum of $42,000
within 30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge
Issued:
Distribution:
Joseph M. Walsh, Attorney for Mine Safety and Health
Administration, U.S. Department of Labor, Office of the
Solicitor, ~015 Wilson Blvd., Arlington, VA 22203
Richard C. Ward, Esq., Craft, Barret, Haynes & Ward,
Post Office Box 1017, Hazard, KY 41701 ·(Certified Mail)

773

THE FOLLOWING DECISION DATED APRIL 30, 1979 WAS OMITTED
FROM OUR APRIL VOLUME OF DECISIONS.

774

FEDERAL MINE SAFETY AND liEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON UOULEVARD
ARLINGTON.VIRGINIA 22203

April 30, 1979
Civil Penalty Proceedings

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

Docket No. HOPE 78-77-P
A/O No. 46-04500-02007V
Wharton No. 11 Mine

EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

Docket No. HOPE 78-76-P
A/O No. 46-04332-02009V
Docket No. HOPE 78-75-P
A/O No. 46-04332-02008V
Lightfoot No. 1 Mine

DECISION
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley,
Whyte and Hardesty, Pittsburgh, Pennsylvania, for
Respondent.

Befo1·e:

Judge Cook

I.

Procedural Background

On November 16, 1977, petitions were filed in the above-captioned
proceedings for assessment of civil penalties against Eastern Associated Coal Corporation for alleged violations of various previsions of
the Code of Federal Regulations. These petitions were filed pursuant
to section 109 of the Federal Coal Mine Health and Safety Act of 1969,
30 u.s.c. § 801 et~· (1970), hereinafter referred to as "the 1969
Coal Act."'!:./ Answers were filed on December 19, 1977.
1/ The Secretary of Labor, Mine Safety and Health Administration
(MSHA), has been substituted as the petitioner in lieu of the Mining
Enforcement and Safety Administration of the Department of the
Interior (MESA) as a result of the enactment of the Federal Mine
Safety and Health Amendments Act of 1977, P.L. 95-164, November 9,
1977.
2/ On March 9, 1978, most provisions of the Federal Mine Safety and
Health Amendments Act of 1977 became effective. That Act provides for

175

A notice of hearing was issued on December 29, 1977. Motions
were made by the Petitioner for approval of settlements in each of
the cases. All of the dockets were continued pending determination
as to the various motions to approve settlements. The motions in
each of these dockets were denied and the cases reset for hearing.
A hearing was held commencing October 10, 1978.
Both parties filed posthearing briefs on November 30, 1978. The
parties were given until December 15, 1978, to file reply briefs, but
none were filed.
II.

Violations Charged
Docket No. HOPE 78-77-P
Notice No. · 3 AJK, January ll, 1977, 30 CFR 75.316.
Docket No. HOPE 78-76-P
Notice No. 6 BJW, January 12, 1977' 30 CFR 75.400.
Docket No. HOPE 78-75-P
Order No. 1 BJW, January 14, 1977' 30 CFR 75.1306.

fn. 2 (continued)
a different effective date as to certain specifically named provisions
not pertinent to this proceeding. The Amendments Act of 1977 changed
the title of the 1969 Act, as amended, to read "Federal Mine Safety
and Health Act of 1977." That Act will be referred to in this decision as "the 1977 Mine Act." Section 301(a) of the Amendments Act
provides that:
"Except with respect to the functions assigned to the Secretary
of the Interior pursuant to section 501 of the Federal Coal Mine
Health and Safety Act of 1969, the functions of the Secretary of the
Interior under the Federal Coal Mine Health and Safety Act of 1969,
as. amended, and the Federal Metal and Nonmetallic Mine Safety Act are
transferred to the Secretary of Labor except those which are expressly
transferred to the Commission by this Act."
With respect to this transfer of functions, section 301 of the
Act of 1977 continues in subsection (c)(3), in part as follows:
"The provisions of this section shall not affect any proceedings
pending at the time this section takes effect before any department,
agency, or component thereof, functions of which are transferred by
this section, except that such proceedings, to the extent that they
relate to functions so transferred, shall be continued before the
Secretary of Labor or the Federal Mine Safety and Health Review
Commission."

776

III.

Evidence Contained in the Record
A.

Stipulations

At the commencement of the hearing, counsel for both parties
entered into stipulations which are set forth in the findings of fact,
infra.
B.

Witnesses

Petitioner called as its witnesses Henry J. Keith and Billy Joe
Workman, who are employed as inspectors by the Mine Safety and Health
Administration of the Department of Labor.
Respondent called as its witnesses Jerry Edward Lewis, who at
the time of the citations was general mine foreman at the Wharton
No. 11 Mine of the Respondent; Gary Gallaher, who was underground
project engineer at the Lightfoot No. 1 Mine of the Respondent at
the time of the citations; Larry Belcher, who at the time of the
citations was a company mine inspector for the Respondent; and
D. Aguilar, who at the time of the citations was assistant general
foreman and acting mine foreman, at the Lightfoot No. 1 Mine.
C.

Exhibits

(1)

Petitioner introduced the following exhibits into evidence:

GX-1 is Notice No. 3 HJK, January 11, 1977, 30 CFR 75.316.
GX-2 is the termination of Exhibit GX-1.
GX-3 is the ventilation plan for the Wharton No. 11 Mine.
GX-4 is the history of violations of the Respondent. ll
GX-5 l.S a diagram of the face area of the Wharton No. 11 Mine.
GX-6 is Notice No. 6 BJW, January 12, 1977' 30 CFR 75.400.
GX-7 is the termination of Exhibit GX-6.
GX-8 is Order No. 1 BJW, January 14, 1977' 30 CFR 75.1306.

3/ The history of violations was marked for identification as
Exhibit GX-4. The Respondent was then given 14 days after the close
of the hearing on October 11, 1978, to file objections to the document (Tr. 250). No objections were filed as to such document.
Therefore, the document marked as Exhibit GX-4 for identification
is received in evidence.

777

GX-9 is the termination of Exhibit GX-8.
(2)

Respondent introduced the following exhibits into evidence:

OX-1 is a copy of the ventilation and methane map for the
Wharton No. 11 Mine.
OX-2 is a copy of the Lightfoot No. 1 cleanup program.
OX-3 is a copy of a cleanup plan used at the Lightfoot No. 1
Mine.
OX-4 is a map showing part of the Lightfoot No. 1 Mine.
IV.

Issues

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

Opinion and Findings of Fact
Docket No. HOPE 78-77-P

Inspector Keith visited the Eastern Associated Coal Corporation
Wharton No. 11 Mine on January 11, 1977 (Tr. 35). He entered the
No. 2 Butt left Section off the 1 East Mains from the direction of the
No. 5 entry and proceeded to the No. 3 entry near the face. There, he
noticed that the line curtain terminated at the outby corner of the
last crosscut (Tr. 37-38). This last crosscut right had been undercut, drilled and shot with three cuts, but the coal had not been
loaded out of the last cut at that time (Tr. 39, Exh. GX-5). Each cut
was about 7-9 feet long (Tr. 39, 85). The No. 3 entry face area had
been cleaned and there were indications that three cuts had been made
(Tr. 39). It was agreed that this practice, called double heading,
which entails mining the face and the crosscut at the same time is not
a good practice (Tr. 44, 78). The inspector indicated that it makes
it very hard to ventilate the face because the curtain across the
crosscut has machinery running through it which would short circuit
the air (Tr. 44). The inspector then noted that there were no line
curtains to within 10 feet of the deepest penetration of the face
area and in the crosscut (Tr. 39). In fact, the curtain was 47 feet

778

from the furthest penetration in the entry (Tr. 65). At this time
a roof bolting machine was located outby the corner of the crosscut
right and the two men who operate the machine were there (Tr. 42).
The inspector then went through the crosscut to the No. 2 entry
(Tr• 40). In the crosscut to the right of the No. 2 entry, four cuts
had been taken out and five cuts had been taken out of the face
(Tr. 40-41). The crosscut had been cleaned, but the face of the
No. 2 entry had one cut of coal remaining in it that had been shot
down (Tr. 41)~ There was no machinery in either the crosscut or the
face (Tr. 41), but there was one man on the left side of the No. 2
entry who was shoveling coal and coal dust towards the center of the
entry (Tr. 41). The curtain terminated at the right corner outby the
crosscut right (Tr. 42), which was 55 feet from the face (Tr. 70).
The inspector then proceeded through the crosscut between No. 1
and No. 2 entries and went to the face of the No. 1 entry (Tr. 42).
He testified that the curtain terminated at the corner outby the
crosscut right (Tr. 42). Four cuts had been made from both the face
and the crosscut right (Tr. 43).
The inspector cited a violation of 75.316 for a violation of the
approved ventilation plan (Tr. 48). In particular, the inspector
referred to an addendum to the ventilation plan which it is found
was in effect on the day in question. This is found at the second
last page of Exhibit GX-3 and provides, in part, as follows:
In addition to the mandatory provisions of Section
75.316-1, 30 CFR 75, the following provisions are designated applicable to the subject mine. Henceforth these
provisions are mandatory requirements of the ventilation
system and methane control plan for this mine:

*

*

*

*

*

*

*

2. Section 75.302-l(a) - Properly installed and adequately maintained line brattice or other approved devices
shall be installed at a distance no greater than 10 feet
from the area of deepest penetration to which any portion
of the face in all working places has been advanced,
unless otherwise specified by written permit.
Mr. Lewis agreed that the curtains had been taken down in most
of the areas beyond the last crosscut at the time of the alleged violation (Tr. 79-80). He said that they had encountered a streak of
rock in the coal which meant that the coal had to be shot extremely
hard. The result was that coal was blown back 40-50 feet from the
face. The miners then removed the curtain to clean the ribs, but
neglected to get the curtain back up (Tr. 80). Mr. Lewis testified

779

that at the time of his examination when he first went to the face,
there was not enough curtain in the No. 1 entry to reach the face, so
they took the curtain from the right crosscut to have enough to reach
the face. This left the crosscut right without a curtain (Tr. 80).
He then went on to state: "But the curtain was to the face of No. 1.
Although in the No. 2 entry, the curtain was still down. In No. 3
entry the curtain was still down. But the curtain was piled upon the
outby rib of the crosscut" (Tr. 80).
Thus, Mr. Lewis agreed with the statements of the inspector as to
the location of the line curtains except that he stated that a curtain
was in the No. 1 entry, although it was not up in the crosscut right
in that entry (Tr. 89-90, 93). He indicated that the line brattices
in the Nos. 2 and 3 entries were up reasonably within 10 feet of the
face when he was on the section earlier on the morning of the inspection (Tr. 100), and although the crosscut right of the No. 3 entry had
a curtain, he did not know if it was within 10 feet of the face,
though he did know that it was not hung in a good manner (Tr. 101).
He testified, however, that when the inspector arrived in entry
Nos. 2 and 3 as well as the crosscuts right, the brattice was not up,
but was piled up outby the last open crosscut (Tr. 102).
Based on the above, it is found that a violation of the roof
control plan did exist, thus constituting a violation of 30 CFR
75.316.
The operator should have known of the violation. The shift had
been working about 3 hours before the inspector arrived (Tr. 45-46).
The section foreman should have noticed the violation during the
shift. Mr. Lewis, the general mine foreman, indicated that while he
understood that the regulations do not permit the curtains to be
taken down, and while he never gave his permission to take them down,
the miners under him do and did take the curtains down (Tr. 97). He
indicated that -it was normal procedure for the miners to take the
curtains down to clean the entries (Tr. 102). He testified that while
he realized that it was management's responsibility to see that the
curtains were up, if management were not there for a while, the curtains would not be put up (Tr. 102). The general mine foreman had
also particularly commented about having warned the miners "time and
again not to double-head these places" (Tr. 44). This poor mining
practice, described above, was part of the cause of the problem and
should have been controlled better by management.
Accordingly, it is found that Eastern's degree of negligence is
more than ordinary since it knew of the conditions in the area and the
continuing nature of the actions of the miners, but it is somewhat
less than gross negligence.
mine.

The No. 11 Mine at the time of this violation was not a gassy
The inspector testified that while the depth of the entries

780

inby the line curtains was such that they could not have been driven
on one ~hift, at least the last cuts in each of the affected areas
were made during the shift on which the inspection was being made
(Tr. 6 6-6 7) •
The inspector testified that at the time of the inspection, he
did not consider the problem of methane to be extremely hazardous
because the mine had not progressed too far underground (Tr. 46, 57).
He indicated, however, that he thought that the method of mining
employed in this mine put dust into suspension which could be
injurious to the people inhaling it (Tr. 46, 57). Mr. Lewis, the
general mine foreman at this mine at the time of the alleged violation, also testified that this was not a gassy mine (Tr. 77).
Mr. Lewis testified that dust from the cutting was not a problem
because the cutting machine cuts into the fire clay under the coal
seam rather than in the coal, so there is no dust (Tr. 103). He
testified that the only dust problem is when you shoot the coal,
and he indicated that went out with the smoke (Tr. 103). However,
any impurities that were in the area might have been added to by
this lack of'ventilation (Tr. 47). In addition, there could be
a fire hazard raised by having dust in suspension (Tr. 47).
There were approximately eight men working on this section that
could have been affected by the absence of proper ventilation (Tr. 45).
Based on the above, it is found that this violation was serious.
With regard to the abatement of the violation, Mr. Lewis testified that it took approximately 45 minutes to abate (Tr. 77). The
inspector testified that Eastern complied with what was asked of them
in abating the violation. Accordingly, it is found that Eastern
demonstrated good faith in abating the violation after notification
of it.
Docket No. HOPE 78-76-P
Inspector Workman visited the Lightfoot No. 1 Mine on January 12,
1977. He examined the preshift examiner's books and determined that
the 005 2 Butt Right Section had been dangered off for loose coal and
coal dust (Tr. 118). When the inspector arrived on the section at
about 10:30 a.m., the miners were engaged in _coal production (Tr.
119). The -mining machine and shuttle cars were in the No. 1 entry
and the bolting machine was in either the No. 2 or No. 3 entry (Tr.
126-127). He noticed that lying on the ribs were half-headers, short
boards approximately 18 inches by 6 or 8 inches, that had "Dangered
off" written on them (Tr. 119-120). He found accumulations of coal
in the Nos. 1, 2 and 3 entries ranging from 1 to 18 inches (Tr. 118119). The inspector established that "approximately" all of the
accumulation was 18 inches in depth, that is, approximately 90 percent (Tr. 120). He indicated that he had taken six measurements in

781

the three ~ntries (Tr. 128-129). The extent of the accumulations ran
from the face to a point approximately 85 feet outby in each entry
(Tr. 120). Of this accumulation, approximately 90 percent was loose
coal, the remainder was coal dust and float coal dust .(Tr. 121).
From the conditions the inspector observed, he estimated that
mining had continued for at least two shifts, since it had last been
cleaned, because of the range of the accumulations (Tr. 122-123). He
also testified that when he arrived on the section, at least one cut
of coal had been made in the No. 1 entry since the shift started (Tr.
122, 126). A cut of coal is about 18 feet in length (Tr. 147-148).
Mr. Gallaher, who at the time of the notice, was underground
project engineer for the Respondent, testified that the previous
shift, the third shift, was not a production shift (Tr. 140). He
further testified that on the second shift, "[t]hey did lose a drive
shaft on the scoop used on thc:tt section for cleanup" (Tr. 140). The
scoop was repaired sometime during the third shift and brought outside to carry supplies to the section (Tr. 140-141). Mr. Gallaher
testified that the scoop was required on cleanup,.but that if the
scoop were n~t available, one would take a shovel and turn the coal
out for the miner to pick it up (Tr. 144, 154). That was how the
citation was eventually abated, the loose coal and coal dust was
thrown out in the middle of the roadway where it could be picked
up by the miner when it got back on cycle (Tr. 125). It took about
2 hours to abate the violation (Tr. 143). The cleanup program for
the mine was set forth in Exhibit OX-2 as follows:
LIGHTFOOT NO. 1 EACC
CLEAN-UP PROGRAM
1.

Each place is bolted first to insure safety of workers.

2.

Loose material along the ribs is shoveled into the
roadway as necessary.

3.

This material is then pushed into the face area by the
scoop or loaded by the miner as miner advances to next cut.

4.

Rock dust is maintained to at least forty feet from the
working face.

The working cycle at this mine is from right to left.
In Old Ben Coal Compa~, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD
par. 22,087 (1977)~ motion for reconsideration denied, 8 IBMA 196,
1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations
Appeals (Board) held that the presence of a deposit or accumulation
of coal dust or other combustible materials in active workings of a
mine is not, by itself, a violation.

782

In that case, the Board held that MSHA must be able to prove:

(1) that an accumulation of combustible material
existed in the active workings, or on electrical equipment
in active workings of a coal mine;
(2) that the coal mine operator was aware, or, by the
exercise of due diligence and concern for the safety of the
miners, should have been aware of the existence of such
accumulation; and

(3) that the operator failed to clean up such accumulation, or failed to undertake to clean it up, within
a reasonable time after discovery, or, within a reasonable time after discovery should have been made.

8 IBMA at 114-115.
There can be no doubt that there was an accumulation of combustible material in the active workings as described above. Further,
in view of both the fact that the area had been written up in the
preshift examiner's report and dangered off, and in view of the
extent of the accumulation, there is no doubt that the coal mine
operator was aware, or should have been aware of the existence of
the accumulation. The section foreman certainly should have
observed the condition during the 3 hours that expired on the shift
before the notice was issued. The fact that the danger boards had
been set aside and that the miners had been at work in actual coal
production during the first shift after the danger boards were
removed and while the accumulation still remained, further bolsters
this finding. The question that remains is.whether Eastern failed
to clean up the accumulation within a reasonable time after
discovery was or should have been made.
As to the issue of "reasonable time," the Board stated:
As mentioned in our discussion of the responsibilities
imposed upon the coal mine operators,. what constitutes a
"reasonable time" must be determined on a case-by-case
evaluation of the urgency in terms of likelihood of the
accumulation to contribute to a mine fire or to propagate
an explosion. This evaluation may well depend upon such
factors as the mass, extent, combustibility, and volatility
of the accumulation as well as its proximity to an ignition
source.
8 IBMA at l15.

783

The Board further stated:
With respect to the small, but inevitable aggregations
of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view that the
maintenance of a regular cleanup program, which would
incorporate from one cleanup after two or three production
shifts to several cleanups per production shifts, depending
upon the volume of production involved, might well satisfy
the requirements of the standard. On the other hand, where
an operator encounters roof falls, or other out-of-the
ordinary spills, we believe the operator is obliged to clean
up the combustibles promptly upon discovery. Prompt cleanup
response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the
most crucial of all the obligations imposed by the Act upon
a coal mine operator to protect the safety of the miners.
8 IBMA at 111.
The extent of this accumulation and the opinion of the inspector,
coupled with the testimony regarding the usual cleanup procedure for
the mine, and the fact that the scoop was not operable at a stage during the prior second shift, all indicate that the accumulation was
present for longer than was reasonable. The additional opinion given
by the preshift examiner in dangering off the area of the accumulations
followed by the setting aside of the danger signs and the commencement
of .coal production is further indication of this.
The Respondent's underground project engineer recognized that
the regular cleanup cycle had not been followed prior to the issuance
of the notice (Tr. 142). An effort to clean up the area should have
been undertaken before coal production was commenced on the shift in
question.
In view of the facts set forth above, it is found that MSHA has
proved all elements necessary to establish a violation of 30 CFR
75.400.
The inspector testified that when you have loose coal and coal
dust in areas where there is travel, there is a danger of fire (Tr.
123). He did not recall any bad cables in the area, however (Tr.
123), and Mr. Gallaher testified that he was not aware of any problems with cables on that section at that time (Tr. 140). The inspector also indicated that the mine was damp and there were spots on the
roadway where there was water, but that it was not damp in the face
area (Tr. 121). Mr. Gallaher attested to the dampness and indicated
that there were 8 or 9 inches of water in places (Tr. 135). However,
the inspector established the fact that there was no standing water
in the 85-foot area where the accumulations were located in this case

784

(Tr. 132). The inspector, Mr. Gallaher, and Mr. Belcher, the company
mining inspector, testified that there was no methane present at the
time the citation was issued (Tr. 124, 131, 135, 163). The potential
sources of ignition on the section were the energized electric face
equipment, oil on the machinery and the welder kept for repairs on
the section (Tr. 123-124). However, the welder would have been near
the belt tailpiece which was at least 300 feet from the working face
(Tr. 140, 142). Mr. Gallaher was not aware of any mechanical problem
at that time that would have necessitated its use (Tr. 140). Based
on all of the above factors, particularly the potential sources of
ignition, such as the energized electric face equipment, and the extent
of the accumulation, it is found that the violation was serious.
It is found as shown above, that the operator knew or should have
known of the violation. In view of the fact that the area had been
dangered off and the operator proceeded to mine without regard to
that fact, it is found that the violation was the result of gross
negligence. The alleged inexperience of the preshift examiner (Tr.
146) did not justify the failure to heed the danger signs.
It is further found that once notified of the violation, the
operator demonstrated good faith in abating the violation (Tr. 125).
Docket No. HOPE 78-75-P
On January 14, 1977, Inspector Workman visited the Lightfoot
No. 1 Mine to make a regular safety inspection (Tr. 167). During the
course of that visit, he entered the 004 Mains Section and proceeded
up the belt entry (Tr. 168). Following the inspection of the face
area, he went up the No. 3 entry, which is a fresh air intake and
primary escapeway, and found approximately four cases of explosives
and detonators stored within 12-1/2 feet of the 7,200 high-voltage
cable and approximately 15 feet from the travelway (Tr. 168, 184,
Exh. GX-8) in an area 600 or 700 feet outby the working area (Tr.
169, 217). The explosives md detonators were stored in a wooden
container with a lid on it (Tr. 168-169). The container was located
in a crosscut about 12-1/2 feet from the mouth of the crosscut. The
high-voltage cable was hung across the mouth of the crosscut (Tr.
187). The other end of the crosscut was blocked by a permanent
stopping (Tr. 170, 185).
There was no dispute as to the location of the explosives and
detonators. Accordingly, it is found that a violation existed in
that 30 CFR 75.1306 requires that explosives and detonators be
located "at least 25 feet from roadways and power wires, * * *·"
The inspector indicated that one of the hazards inherent in the
placement of the powder box was the 7,200-volt cable that ran past it.
The detonating caps stored in the box are set off by an electrical
charge (Tr. 171, 209). This detonation could be activated by stray

785

current from a power cable (Tr. 171). However, in order for there
to be a stray current, there would have to be a break in the cable
(Tr. 255). The cable in question was a new cable that had been
installed about a month before this incident (Tr. 207). This cable
has a metal shield which is covered by a rubber coating. A person
can touch it and not receive a shock (Tr. 189). In addition, there
is a ground-checking system which continuously monitors the system.
If a hole was made in the armor shielding, the system is designed to
deenergize itself (Tr. 171, 189, 207-208). There was no reason to
believe that this system was hooked up improperly (Tr. 256). In
addition, stray current would have to have a path of conductivity to
set off the detonators (Tr. 255). The powder box is constructed out
of wood which is a nonconducting material (Tr. 209, 224), and the
detonators were separated from the powder by a 4 inch wooden divider
(Tr. 206). The section where the powder box was located was dry and
rock dusted and there was no water present on the box itself (Tr. 207,
259-260). Further, the detonators can not be set off if the wires
are shunted on them (Tr. 214). All detonator wires that come from
the factory are shunted by a small lead fitting holding the wires
together on each dotonator (Tr. 214-215). There was no testimony
that any of these shunting devices was missing from any of the
detonators. There were no loose detonators lying around in the
powder box (Tr. 221-222, 261).
In addition to the cable, the inspector indicated that there was
a potential hazard, because of the proximity to a travelway of a scoop
with its ·batteries coming in direct contact with the powder box (Tr.
172). It was pointed out that the crosscut had a stopping at one
end which would cut down on traffic (Tr. 185-186). No one would have
any reason to go into the crosscut other than to ge't explosives (Tr.
186, 193). However, as pointed out by the inspector, equipment failure could cause a person to lose control of the machinery (Tr. 184).
If this were to happen, however, certain safety devices, such as a
panic bar designed to deenergize the machine in the event of a problem, would serve to lessen, though not eliminate this danger (Tr.
188, 217, 225).
The Administrative Law Judge also took judicial notice of a
West Virginia Statute, section 22-2-32, relating to underground
storage, which requires that explosives must be stored at least
15 feet from roadways and power wires, rather than the 25 feet
required by Federal law (Tr. 199-200).
Accordingly, it is found that this violation was only moderately
serious.

Mr. Aguilar, the acting mine foreman at the time of the incident,
testified that on the day prior to the issuance of the order, he had
the explosives' box moved from another location to the crosscut where
it was at the time of the inspection (Tr. 204, Exh. 0-4). The last

786

time he saw it; it was at least 25 feet from the roadway and up
against the stopping at the rear of the crosscut (Tr. 205). Subsequently, however, and prior to the shift on which the inspection was
conducted, it was brought out of the mine to be refilled (Tr. 206).
There is no clear showing that Eastern management knew that the box
had been placed too near the roadway or the power cable, however,
since the violation was not cited until about 4 hours after the shift
began, it should have been seen by management personnel. Ac~ordingly,
this violation is found to be the result of ordinary negligence. ·
The inspector testified that the time for the abatement was
one-half hour. This included withdrawing the men from the area and
moving the powder box further into the crosscut. This latter action
took approximately 3 minutes (Tr. 180). It is found that Eastern
demonstrated good faith in abating the violation.
Appropriateness of Penalty to Size of Operator's Business
Eastern is a large coal company (Tr. 20). It was stipulated that
the company's coal production for 1976 was 8 million tons (Tr. 20).
Effect on Operator's Ability to Continue in Business
Counsel for Eastern stated that he was willing to stipulate that
the company would be able to continue in business even if there were
an assessment in this case (Tr. 20). Furthermore, the Interior Board
of Mine Operations Appeals (Board) has held that evidence relating
to whether a penaity will affect the ability of the operator to stay
in business is within the operator's control, and therefore, there is
a presumption that the operator will not be so affected. Hall Coal
Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972).
I find therefore, that penalties otherwise properly assessed in this
proceeding would not impair the operator's ability to continue in
business.
History of Previous Violaiions
As relates to the Wharton No. 11 Mine, the operator had paid
assessments for approximately 82 violations of regulations in the
24 months preceding the violation of January 11, 1977. Of these,
five were violations of 30 CFR 75.316, the violation cited in these
proceedings. As relates to all mines of the operator, during the
year 1975, it paid assessments relating to approximately 58 violations
of 30 CFR 75.316; as relates to the year 1976, the number was approximately 88 violations of 30 CFR 75.316.
As relates to the Lightfoot No. 1 Mine, the operator had paid
assessments for approximately 157 violations of regulations in the
24 months preceding the violation of January 12, 1977. Of these,
22 were violations of 30 CFR 75.400. There is no history shown in
•

787

this mine for violations of 30 CFR 75.1306. As relates to all mines
of the operator, during the year 1975, it paid assessments relating
to approximately 276 violations of 30 CFR 75.400; as relates to the
year 1976, the number was approximately 346 violations of 30 CFR
75.400. As relates to all mines of the operator during the year
1975, it paid assessments relating to approximately 14 violations of
30 CFR 75.1306; as relates to the year 1976, the number was approximately 19 violations of 30 CFR 75.1306. In accordance with the
ruling in Peggs Run Coal Company, 5 IBMA 144, 150, 82 I.D. 445,
1975-1976 OSHD par. 20,001 (1975), no consideratfon will be given to
any violations occurring subsequent to the respective dates of violations involved in this case.
VI.

Conclusions of Law

1. Eastern Associated Coal Corporation and its Wharton No. 11
Mine and Lightfoot No. 1 Mine have been subject to the provisions of
the 1969 Coal Act and 1977 Mine Act during the respective periods
involved in these proceedings.

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to these proceedings.
3. The violations charged in Notice No. 3 AJK, January 11, 1977
(30 CFR 75.316), Notice No. 6 BJW, January 12, 1977. (30 CFR 75.400),
and Order No. 1 BJW, January 14, 1977 (30 CFR 75.1306), are found to
have occurred.
4. All of the conclusions of law set forth in Part V of this·
decision are reaffirmed and incorporated herein.
VII.

Proposed Findings of Fact and Conclusions of Law

MSHA and Eastern submicted posthearing briefs. Such briefs,
insofar as they can be considered to have contained proposed findings and conclusions, have been considered fully, and except to
the extent that such findings and conclusions have been expressly
or impliedly affirmed in this decision, they are rejected on the
ground that they are, in whole or in part, contrary to the facts
and law or because they are immaterial to the decision in these
cases.
VIII.

Penalties Assessed

Upon consideration of the entire record in this case and the
foregoing findings of fact and conclusions of law, I find that the
assessment of penalties is warranted as follows:

788

Docket No. HOPE 78-77-P
Notice No. 3 AJK

January 11, 1977

30 CFR 75. 316

$1,350.00

30 CFR 75.400

$1,500.00

30 CFR 75.1306

$

Docket No. HOPE 78-76-P
Notice No. 6 BJW

January 12, 1977

Docket No. HOPE 78-75-P
Order No. 1 BJW

January 14, 1977

900.00

ORDER
Respondent is directed to pay the penalties assessed in the
amount of $3,750.00 within 30 days of the date of this decision.

~4

JohnF.~

Administrative Law Judge
Issued: April 30, 1979
Distribution:
Stephen P. Kramer, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte and
Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified
Mail)
Administrator for Coal Mine Safety and Health
Standard Distribution

789