Index February 1980
Commission Decisions
2-07-80
2-25-80
2-25-80

Arch Mineral Corporation, MSHA v.
Island Creek Coal Co., MSHA v.
Van Mulvehill Coal Co., Inc., MSHA v.

WEST 79-58
KENT 79-129

Pg. 277
Pg. 279

LAKE 79-223-RM
NORT 78-337-P
LAKE 79-282-D
KENT 79-105
KENT 79-165
PIKE 79-66
BARB 79-307-P
DENV 79-461-P
SE
79-2-M
SE
79-3-M
VINC 79-227-P
DENV 79-396-PM
PIKE 78-420-P
KENT 79-115-R
HOPE 78-744-P
WEST 79-373-RM
LAKE 79-118
SE
79-110
CENT 79-92-M
LAKE 79-109
WEVA 79-238-D
KENT 79-39
KENT 79-124
KENT 79-138
LAKE 79-53
SE
80-41-R
WILK 79-149-P
WEST 79-325-RM
WEVA 79-351-R
DENV 79-'155-PM
VA
79-144-D
MORG 79-26-P
WEST 79-279-M
HOPE 79-197-P
NORT 79-63-P
WEST 79-92-RM
Hope 77-128
HOPE 79-307
HOPE 79-128-P
PENN 79-113

Pg. 288
Pg. 290
Pg. 294
Pg. 301
Pg. 305
Pg. 307
Pg. 311
Pg. 336
Pg. 338
Pg. 348
Pg. 350
Pg. 360
Pg. 368
Pg. 370
Pg. 392
Pg. 398
Pg. 405
Pg. 407
Pg. 437
Pg. 438
Pg. 440
Pg. 443
Pg. 446
Pg. 451
Pg. 456
Pg. 467
Pg. 469
Pg. 470
Pg. 479
Pg. 493
Pg. 504
Pg. 510
Pg. 515
Pg. 520
Pg. 532
Pg. 542
Pg. 575
Pg. 591
Pg. 597
Pg. 609

Administrative Law Judge Decisions
2-04-80
2-04-80
2-05-80
2-06-80
2-06-80
2-06-80
2-08-80
2-08-80
2-08-80
2-08-80
2-08-80
2-11-80
2-11-80
2-11-80
2-12-80
2-12-80
2-12-80
2-12-80
2-13-80
2-13-80
2-13-80
2-14-80
2-14-80
2-14-80
2-14-80
2-14-80
2-15-80
2-19-80
2-19-80
2-20-80
2-20-80
2-21-80
2-22-80
2-25-80
2-25-80
2-25-80
2-26-80
2-26-80
2-26-80
2-28-80

White Pine Copper v. MSHA
Clinchfield Coal Co., MSHA v.
Charles W. Miller & MSHA v. Old Ben Coal Co.
Pikeville Coal Co., MSHA v.
Pikeville Coal Co., MSHA v.
Pikeville Coal Co. v. MSHA
The Pittsburg & Midway Coal Mining Co., MSHA
Kerr-McGee Coal Corp., MSHA v.
David Cabrera, Inc., MSHA v.
David Cabrera, Inc., MSHA v.
Southern Ohio Coal Co., MSHA v.
Climax Molybdenum Co., MSHA v.
Pontiki Coal Corp., MSHA v.
Pontiki Coal Corp. v. MSHA
Sewell Coal Co., MSHA v.
Conrock Company v. MSHA
North American Coal Corp. et al, MSHA v.
Alabama By-Products Corp., MSHA v.
General Portland Inc., MSHA v.
Buckeye Coal Mining Co., Inc., MSHA v.
Steve Shapiro v. Bishop Coal Co.
H & H Coal Co., MSHA v.
Golden R Coal Co., MSHA v.
The Hoke Co., Inc., MSHA v.
Southwestern Illinois Coal Corp., MSHA v.
Alabama By-Products Corp. v. MSHA
Stoudt's Ferry Preparation Co., MSHA v.
Climax Molybdenum Co. v. MSHA
Consolidation Coal Co. v. MSHA
Homestake Mining Co., MSHA v.
Pilot Coal Co., MSBA ex rel Billy G. Kilgore
Coaltrain Corp. , MSHA v.
Acme Concrete Co. , MSHA v.
Island Creek Coal Co., MSHA v.
Harman Mining Corp., MSHA v.
Climax Molybdenum Co. v. MSHA
Local Union #6594, District 17 v. FMV Coal
Itmann Coal Co. v. MSHA & UMWA
Amherst Coal Co., MSHA v.
Consolidation Coal Co., MSHA v.

Commission Decisions

February 1 - 29, 1980

FEBRUARY

The following cases were Directed for Review during the month of February:
Secretary of Labor , MSHA v. Paramont Mining Company, VA 79-51; (Judge
Broderick, December 31, 1979.)
Republic Steel Corporation v. Secretary of Labor, MSHA, PENN 80-56-R,
PENN 80-61-R (Judge Kennedy, January 3, 1980.)
Review was Denied in the following cases during the month of February:
Secretary of Labor, MSHA v. Ottawa Silica Company, WILK 79-69-PM;
(Judge Michels, December 28, 1979)
Secretary of Labor, MSHA on behalf of Anthony Heriges, etc., v. Island
Creek Coal Company, KENT 80-22-D, etc. (Judge Bernstein, January 24, 1980)
Secretary of Labor, MSHA v. Arch Mineral Corporation, WEST 79-58;
Petition for Interlocutory Review.
Thomas Dickenson & John Turner v. Clinchfield Coal Company, VA 79-93-D;
Petition for Interlocutory Review.
Alan Lund v. Clinchfield Coal Company, VA 79-94-D; Petition for Interlocutory Review.

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

20006

February 7, 1980

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

v.

Docket No. WEST 79-58

ARCH MINERAL CORPORATION
ORDER
Arch Mineral Corporation's petition for interlocutory review of an
order of the administrative law judge that granted the Secretary of
Labor's Motion to Accept Late Filing of Proposal for Penalty is denied.
We do not pass on the question of what circumstances, if any, may excuse
the late filing of a Proposal for Penalty. Because the events in this
case occurred during the period of transition between the Commission's
interim and final procedural rules, issues concerning the interpretation
of final Commission Rule 27(a) are not presented squarely by this
petition for interlocutory review. Our denial of the petition is not to
be construed in any way as approval of the failure by the Secretary to
timely file a proposal for a penalty in this or any other case.

0\\et\lru 1~o~ill11w '-QDJ..Q
[,j

Marian Pearlman Nease, Commissioner

80-2-3
277

DISTRIBUTION
Brent L. Hotchan, Esq.
Arch Mineral Corporation
500 North Broadway
Suite 1800
St. Louis,•Missouri 63102
Phyllis K. Caldwell, Esq.
U.S. Department of Labor
Off ice of the Solicitor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Administrative Law Judge John J. Morris
Federal Mine Safety and Health Review Commission
333 West Colfax
Denver, Colorado 80294

278

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

February 25, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 79-129

v.
ISLAND CREEK COAL COMPANY
DECISION

On October 6, 1978, an inspector of the Mine Safety and Health
Administration inspected Island Creek Coal Company's Big Creek No. 2
mine. He observed an alleged violation of 30 CFR §75.400 (accumulation
of combustible materials), which he believed was caused by an unwarrantable failure of the operator to comply with that standard. As a result
of his finding, the inspector issued a withdrawal order under section
104(d)(l) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§814(d)(l), because he believed that a citation containing the findings
that must precede a section 104(d)(l) withdrawal order had been issued
on September 27, 1978. 1./

1./

Section 104(d)(l) provides:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also
finds that, while the conditions created by such violation do not
cause inuninent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety standards,
he shall include such finding in any citation given to the operator
under this Act. If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance of such
citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and
finds such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area affected by
such violation, except those persons referred to in subsection (c)
to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that
such violation has been abated.
80-2-9
279

On August 21, 1979, the Secretary filed with the Commission a
proposal for a penalty, seeking the assessment of a penalty under
section 110 of the Act for the alleged violation of 30 CFR §75.400 cited
in the October 6 withdrawal order. A penalty of $2,000 was sought.
Thereafter, the Secretary discovered that the September 27, 1978
citation had been modified by the inspector on September 28, 1978 to
provide that "[t]he 104 D-1 citation and termination is hereby modified
to a 104-A citation and termination."]:_/ Thus, a citation containing
the prerequisite findings did not in fact precede the October 6 withdrawal order under section 104(d)(l). On November 21, 1979, the Secretary filed a motion to dismiss the instant penalty proceeding, on the
ground that "[a]s a result of the modification of [the September 27
citation, the October 6 order] is without foundation and does not properly
allege a violation of section 104(d)(l) of the Act." On November 29,
1979, without explanation, the administrative law judge granted the
Secretary's motion to dismiss. On December 28, 1979, we directed review
on our own motion to determine whether the judge erred in granting the
Secretary's motion to dismiss. We reverse.
The Secretary's motion, and the judge's dismissal, proceeded on an
erroneous understanding of the Act's penalty provisions. Section llO(a)
of the Act provides in part:
The operator of a coal or other mine in which a
violation occurs of a mandatory health or safety
standard or who violates any other provision of
this Act, shall be assessed a civil penalty by
the Secretary which penalty shall not be more than
$10,000 for each such violation.
The Act mandates assessment of a penalty for any violation of a mandatory
safety standard, such as 30 CFR §75.400, whether that violation is
alleged in a citation issued under section 104(a), or in a withdrawal
order issued under section 104(d) or other section of the Act. Whether
a withdrawal order was properly issued or not (rather than a citation
alone) does not affect the fact that a violation of a mandatory safety
standard was alleged in that order. That allegation, unless itself
properly vacated, survives a vacation of the order it is contained in,
and, if proven, the assessment of a penalty under section 110 is required.
Thus, whether the October 6, 1978 withdrawal order was properly issued
under section 104(d)(l) is not relevant to the assessment of a penalty
under section 110 for an alleged violation of a safety standard cited in
that order. Therefore, the judge erred in granting the motion to dismiss.

2/
Presumably, the inspector meant that he was modifying the September 27
citation to delete either or both of the "significant and substantial"
or "unwarrantable failure" findings in that citation.

280

Accordingly, the judge's order of dismissal is reversed and the
case is remanded _for further proceedings.

-·

man Nease, Commissioner

281

Distribution
Darryl A. Stewart, Esq.
Office of the Solicitor
U.S. Department of Labor
280 U.S. Courthouse
801 Broadway
Nashville, TN 37203
Marshall S. Peace, Esq.
Island Creek Coal Company
P.O. Box 11430
Lexington, KY 40575
Thomas A. Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Administrative Law Judge Charles C. Moore, Jr.
Office. of ALJ' s
2 Skyline, Suite 1000,
5203 Leesburg Pike
Falls Church, VA 22041

282

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

February 25, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 79-127

v.
VAN MULVEHILL COAL CO., INC.
DECISION

On January 22, 1979, an inspector of the Mine Safety and Heal.th
Administration inspected Van Mulvehill Coal Company's Black Creek No. 1
mine. He observed several alleged violations of mandatory safety
standards, and he believed that an imminent danger existed. He issued a
combined citation and withdrawal order under sections 104(a) and 107(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§814(a)
and 817(a). The document stated:

An imminent danger existed in that the mine
fan was not operating and employees were in
the mine (75.300). A ventilation and dust
control plan had not been submitted (75.316).
A fan stoppage plan had not been submitted
(75.321). An up-to-date map of the mine had
not been submitted to MSHA (75.316-la). The
operator had not submitted arrangements for
emergency medical assistance (75.1713-l(a)(b)).
[Citation and Order No. 239804.]
The conditions cited by the inspector were abated by the operator and
the withdrawal order was terminated on January 30, 1979.
On October 12, 1979, the Secretary filed with the Commission a
proposal for a penalty, seeking the assessment of penalties under
section 110 of the Act for the five alleged violations cited on
January 22, 1979. Penalties totaling $164 were sought.

80-2-10
283

On November 28, 1979, the inspector issued a document that stated:
Citation number 239804 issued January 22, 1979 is vacated on
grounds that coal was not being produced at the time. The
financial condition as stated by accountants are such that the
payment of the penalties could have an effect on the company
continuing in operation. There has been full cooperation
since the issuance of the citation to comply with the Act and
regulations by company officials and employees.
On December 10, the Secretary moved to withdraw his proposal for a
penalty "for the reason that the Order of Withdrawal No. 239804, heretofore issued, has been vacated." On December 12, the administrative law
judge granted the motion. On January 11, 1980, we directed review on
our own motion to determine whether the judge erred in granting the
Secretary's motion to dismiss. We reverse.
We do not have before us in this civil penalty proceeding the
propriety of the imminent danger withdrawal order issued under section
107(a). Thus, to the extent that the inspector's action on November 28,
1979, vacated that order (presumably on the basis that no imminent
danger existed), as implied by the Secretary's December 10 motion to
dismiss, we do not decide whether or not the vacation was correct. Even
if it was, however, dismissal of the civil penalty proceeding was
error. The Act mandates assessment of a penalty for any violation of a
mandatory safety standard or any provision of the Act, whether that
violation is alleged in a citation issued under section 104(a), or in a
withdrawal order •••. Whether a withdrawal order was properly issued or
not (rather than a citation alone) does not affect the fact that a
violation was alleged in that order. That allegation, unless itself
properly vacated, survives a vacation of the order it is contained in,
and, if proven, the assessment of a penalty under section 110 is required.
Cf. Island Creek Coal Company, Docket No. KENT 79-129 (February ,
1980). Thus, whether the January 22, 1979, withdrawal order was
properly issued under section 107(a) is not relevant to the assessment
of a penalty under section 110 for alleged violations cited in that
order.
To the extent, however, that the inspector's November 28 action
purported to vacate the section 104(a) citations, as appears was his
intent, the dismissal was still error. As the Secretary now correctly
states in his brief on review, the factors stated by the inspector do
not support vacation of the citations. Rather, if the alleged violations occurred, those factors may be taken into account in considering .
the criteria of gravity, effect on ability to continue in business, and
good faith of abatement efforts in assessing appropriate penalties under
section llO(i) of the Act.

284

Accordingly, the judge's order of dismissal is reversed and the
case is remanded for further proceedings.

Frank

A':

285

Distribution
Van Mulvehill Coal Company, Inc.
Route 1, Box 240
Trafford, Alabama 35172
Murray A. Battles, Esq.
Office of the Solicitor
U.S. Department of Labor
1929 South Ninth Ave •.
Birmingham, Alabama 35205
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

286

Administrative Law Judge Decisions
February 1 - 29, 1980

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

22041

(703) 756-6210/11/12

FEB
WHITE PINE COPPER,
DIVISION OF COPPER MINE,
Applicant

4 1980
Applications for Review
Docket No. LAKE 79-223-RH
Citation No. 295881; 7/31/79

v.
Docket No. LAKE 79-224-R11
Citation No. 294054; 7/31/79

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

Docket No. LAKE 79-225-RH
Citation No. 295055; 7/31/79
Docket No. LAKE 79-226-RH
Citation No. 294056; 8/1/79
White Pine Mine
DECISION AND ORDER

The Secretary moves to dismiss the captioned matters on the ground
that vacation of the challenged citations moots the issue of their validity.
The operator opposes the motion on the ground that issuance of the
citations was in excess of MSHA's statutory authority. The operator seeks
therefore an order declaring MSHA's action null, void and unenforceable.
See, Eastern Associated Coal Corp., HOPE 73-663, decided February 12, 1974,
affirmed in part and reversed in part, 4 IBMA 298 (1975); Eastern Assoc. Coal
Corp. v. IBMA, 491 F.2d 277 (4th Cir. 1974); Super Tire Engineering v.
Mccorkle, 416 U.S. 115, 122-126 (1975).
In essence, the operator claims that MSHA's method of enforcement
is a deprivation of its property without due process of law. MSHA
and the Union, on the other hand, claim that the operator's asserted
right to change its ground support system without proof that the alternate
method is safe may result in deprivation of a miner's right to life,
liberty and property, also without due process of law.
The record shows that acting on a complaint under section 103(g)(l)
of the Act, MSHA charged that the operator's failure to furnish data
substantiating its claim that use of 4-foot resin bolts in lieu of
alternating 4 and 6-foot mechanical bolts was a violation of the ground
support standard for metal mines. 30 CFR 57.3-20. Thereafter, an
evaluation of the alternate method by MSHA and the operator established

288

that in any area of the mine where "geologic and stress conditions
are similar" 4-foot resin bolts will provide minimal adequate support.
Evaluation Report at 6. In areas where the "geologic and horizontal
stress conditions are different", however, MSHA reserves the right to
require the operator to prove the efficacy of the 4-foot resin bolts
prior to their general use.
After a careful consideration of the vital interests involved, I
conclude the interest in life outweighs the interest in property.
Congress made this choice inevitable when, in staking out goals for the
Mine Safety Act, it solemnly declared that "the first priority and
concern of all in the mining industry must be the health and safety of
its most precious resource--tl).e miner". That priority is reflected
in the Act's review provisions, which do not tolerate temporary relief
from 104(a) citations but which, under the Commission's decision in
Energy Fuels Corp., DENV 78-410, 1 BNA MSHC 2013, 1 FMSHRC Decisions 299,
(May 1, 1979), do provide for immediate, expedited review of the merits
of abated citations. For these reasons, I find the operator's claim
of irreparable injury or deprivation of property without due process
of law without merit. As the courts have noted, "irreparable harm,
presupposes the absence of an available remedy for relief, whether
administrative or judicial." Sink v. Morton, 529 F.2d 601, 604 (4th Cir. 1975).
In this case the Act clearly provides such a remedy since the operator
can obtain an expedited hearing on the merits of the validity of a
citation or closure order, including the right to apply for a temporary
stay of a closure order. Such a procedure accords the operator all the
process he is due. Lucas v. Morton, 358 F.Supp. 900, 905 (W.D. Pa. 1972);
Sink v. Morton, supra.
The premises considered, it is ORDERED that the Secretary's motion
to dismiss the captioned notice of contest b e and hereby is, GRANTED
and the matter DISMISSED.
I

'

1

L/i

~{~. ~ ne~d~y~..IAtA-4"~'1~~
Administrative Law Jud
Distribution:
John H. O'Donnell, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill & Greenlee,
Peninsula Bank Bldg., Ishpeming, MI 49849 (Certified Mail)
Harry Tuggle, United Steelworkers of America, 5 Gateway Plaza, Pittsburgh,
PA 15222 (Certified Mail)
John Cestkowsky, President, Local, United Steelworkers of America, Watersmeet,
MI 4996'9 {/Certified Mail)

289

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

FEB

4 1980

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

Civil Penalty Proceeding
Petitioner

Docket No. NORT 78-337-P
A/O No. 44-02277-02004V

v.
Moss No. 3 Preparation Plant
CLINCHFIELD COAL COMPANY,
Respondent
DECISION
Appearances:

Eddie Jenkins, 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 Charles C. Moore, Jr.

Inspector Daniel S. Graybeal, a surface mine inspector for MSHA, conducted a regular health and safety inspection at Clinchfield Coal Company's
Moss No. 3 Preparation Plant on November 29, 1977 (Tr. 8), and during the
course of inspecting the plant's thermal drying system (Tr. 10), Inspector
Graybeal found that the bypass relief gate for the No. 3 furnace was not
working (Tr. 11). This particular plant had four furnaces, each with two
dryers (Tr. 11).
Inspector Graybeal asked foreman Ernest Serber to have the furnace
operator simulate an emergency shutdown. This is accomplished by stopping
the dried coal transfer screw which stops all drying components except the
exhaust fan. 1/ This was done, but the bypass gate did not open (Tr. 12) ..
An emergency shutdown was simulated three more times and each time the
bypass gate failed to open (Tr. 12). Inspector Graybeal then asked a local
union representative to disconnect the air hose leading to the air motor
that closes t~e bypass gate under pressure. The bypass gate still failed
to open (Tr. 12). The protection door which normally allows heat from the
furnace to rise into the dryers closed during the emergency shutdown, as it
should (Tr. 23).

IJ There is a dispute as to this statement which will be discussed later.

290

Although Inspector Graybeal did not have a clear line of vision to the
furnace from his location on the feed and discharge screw platform next to
the bypass gate, he could see smoke rising up from the area of the furnace
during the shutdown. None of the other dryers were shut down at this point
(Tr. 28).
The inspector issued an unwarrantable failure order. This order was
terminated 1 hour and 10 minutes after it was issued {Tr. 45). Inspector
Graybeal was called back to reinspect the bypass relief gate (Tr. 46). In
checking the gate, he observed it would only open part way and he refused
to terminate the order until the bypass gate would open completely (Tr. 46).
Employees of Respondent tied a 15-pound metal weight to the arm of the
bypass gate to give it more leverage so that it would open (Tr. 46-47).
The bypass gate then operated properly and the order was terminated.
The furnace operator on the day shift informed Inspector Graybeal that
the bypass gate was last checked on November 21, 1977 (Tr. 43). Four other
employees of Respondent did not know when the bypass gate had been most
recently inspected (Tr. 75).
The last unwarrantable failure order issued to the Moss No. 3 Preparation Plant was written on October 12, 1976. During that 11-month interval,
no complete health and safety inspections were conducted by MSHA at the
plant to verify abatement of the unwarrantable failure citation, or for
any other reason (Tr. 97).
A plant electrician was called to the No. 3 furnace to check the bypass
gate after the order was issued and before it was abated. He testified that
he unhooked the air hose to the bypass gate and found that the gate operated
properly (Tr. 145). The electrician called one of the foremen and told him
that he could not find anything wrong with the bypass gate (Tr. 45). He had
watched the bypass gate open when he unhooked the air hose (Tr. 147).
Frank Hall, the plant superintendent, testified that no time had been
lost due to a malfunctioning bypass gate during the week the citation was
issued (Tr. 165).
There is no doubt that thermal dryers can be hazardous and that the
chance of explosion or fire is greater during startup and shutdown than
during normal operation of the dryer. Hot gases from the furnace enter
the main part of the dryer where coal and coal dust is present and ignition
of the coal dust sometimes occurs. It was explained that there is sometimes
incomplete combustion in the furnace and thus some flammable gases reach
areas where coal dust accumulates and that if an ignition occurs these gases
would add to the severity of a coal dust ignition. It is not at all clear
however, how the failure of the bypass gate could lead to an explosion in
the dryer. The last page of Exhibit M-2 contains a schematic diagram of
the thermal dryer involved in this case. The furnace portion of the dryer
is constructed of an inner wall which is firebrick hung on a framework with
no mortar and an outer wall which, although mortared, nevertheless has substantial openings therein. When the system is operating the exhaust fans

291

cause air to be drawn in through the furnace openings and out of the furnace up past the protection door into the main part of the dryer. When the
protection door is closed no gases from the furnace can be sucked up into
the dryer, and the purpose of the bypass gate is to disburse the combustion
products via a bypass stack leading to the outside rather than having these
products exit the furnace through holes in the furnace itself. Even with
the protection door closed (the bypass gate has no function unless the protection door is closed), I am unconvinced that an explosion hazard existed.
I cannot accept the inspector's speculation that sufficient pressure might
build up in the furnace to force open the protection door. According to
the inspector, there were two 16-inch square openings at the top corners of
the furnace (this is the outside wall of the furnace) and at the bottom
some bricks were left out to provide an airflow (Tr. 70). With the protection door and the bypass gate closed, smoke could be forced through the
furnace openings until the fire smothered itself. The smoke coming out of
these openings may constitute a hazard, but not an explosion hazard.
Although there is some question about it, I am going to assume that
the thermal dryer operator used the proper emergency shutdown procedures.
According to the note at the bottom of page 4 of the emergency shutdown
procedures (Exhibit M-2), stopping the dried coal screw will stop the complete system in sequence except for the exaust fan. Respondent's superintendent however, testified that the note was erroneous and that the other
steps listed on the same page would have to be taken in order to shut down
the system in sequence. Inasmuch as the inspector asked the dryer operator
to simulate an emergency shutdown and observed that the bypass gate did not
close and that smoke was coming from the bottom of the furna ce (indicating
the protection door had closed), he established a·prima face case that the
bypass gate was not working properly. If the dryer operator acted improperly, it was the burden of Respondent to rebut the prima face case by showing that some step in the shutdown procedure was omitted. It has failed to
make such a showing. I therefore find that there was a violation of the
safety standard.
1

1he inspector issued the unwarrantable failure order because four tries
were made to simulate the emergency shutdown and in each case the bypass
gate would not open. It is clear that I do not have any authority to
review the unwarrantability finding or the order during a civil penalty
proceeding. In Zeigler Coal, 2 IBMA 216 (1973), the Board of Mine Operations Appeals decided that the validity of a withdrawal order is not an
issue in a civil penalty proceeding. Subsequent cases under the 1969 Act
decided by both the Board and the Commission unerringly follow Zeigler
(Wolf Creek, PIKE 78-70-P, March 26, 1979; Pontiki, 1 FMSHRC 1476 (October
1979); Jewell Ridge, 3 IBMA 376 (1974); Plateau Mining, 2 IBMA 303 (1973);
Buffalo Mining, 2 IBMA 327 (1973); North American Coal, 3 IBMA 93 (1974),
cf. Freeman Coal, 2 IBMA 197 (1973)). This is the rule whether the improperly considered order was an unwarrantable failure order (Wolf Creek, supra;
Jewell Ridge, supra; Pontiki, supra; North American Coal, supra), or an
imminent danger withdrawal order (Zeigler Coal, supra; Plateau Mining,
supra; Buffalo Mining, supra; cf. Freeman Coal, supra).

292

I think a distinction should have been made between orders that depend
on a violation of a health and safety standard, such as unwarrantable failure orders, and imminent danger orders which need not be supported by any
violation of
health and safety standard. An imminent danger can exist
when there is no violation, but the idea of there being an unwarrantable
violation but no violation is self-contradictory. If I had found that
there was no violation proved in this case, the effect of that finding
would be to show the invalidity of the order but I could not vacate that
order. Assuming my decision was affirmed, there would be a final legal
determination that no violation had occurred and at the same time, an
equally final and valid order stating that an unwarrantable failure violation had occurred.

a

In the instant case, I have found that a violation occurred and while
I cannot review the unwarrantability of the violation I can find and
do find that Petitioner has not proved negligence in this case. 2/ The
bypass stack has to open in both emergency and normal shutdowns and there
was no evidence that prior to the date of the inspection this bypass stack
had failed to operate properly. The fact that in four separate tries the
inspector and dryer operator could not get the bypass stack to open, shows
that there was something wrong with it but it does not prove that Respondent
knew or should have known that something was wrong with it. Respondent is
a large company and has a substantial history of violations and it abated
the violation promptly and in good faith. I find the evidence establishes
a low order of gravity and that a penalty of $300 is appropriate.
ORDER
IT IS THEREFORE ORDERED that Respondent pay to MSHA, within 30 days of

the issuance of this decision, a civil~th~am~~OO~'

Charles C. Moore, Jr.
Administrative Law Judge
Distribution:
Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Gary W. Callahan, The Pittston Company Coal Group, Lebanon, VA
24266 (Certified Mail)

Jj

This makes it unnecessary for me to consider Respondent's contention
that it was prevented from escaping the unwarrantable chain by MESA's
failure to conduct a complete inspection for 11 months.

293

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

(703) 756-6225

FEB

5 1980
Complaint of Discharge,
Discrimination, or
Interference

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

Docket No. LAKE 79-282-D
CD 79-158

CHARLES W. MILLER,
Applicant

v.

No. 24 Mine

OLD BEN COAL COMPANY,
Respondent
DECISION
'!his is a proceeding under Section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977. Applicant alleges that he was removed from his position as face boss at Old Ben's No. 24 Mine because of his "insistence that
the men working under me do so under safe conditions and in compliance with
[F]ederal law." A hearing was held in St. Louis, Missouri, on November 28
and 29, 1979. The parties were represented by counsel, and have filed posthearing briefs.
At the hearing, Applicant, J. B. Gibbs, John Barwick, George Jenkins,
and Dennis Benns testified for Applicant. Lester Grogan, Roger Roper,
Robert Travelstead, and James Green testified for Respondent. Ernest
Duckworth testified for Applicant as an adverse witness, and for Respondent.
FINDINGS OF FACT
The parties stipulated and I find:
1. Old Ben Coal Company (Old Ben) is engaged in the coal mining business in the State of Illinois, with its home office at 125 South Wacker
Drive, Chicago, Illinois 60606, and a regional office at 500 North DuQuoin
Street, Benton, Illinois 62812.

2. Charles W. Miller was employed by Old Ben as an underground miner
from June 3, 1974, to July 25, 1977.
3. On or about July 25, 1977, Mr. Miller was promoted by Old Ben to
a management position as a section boss (sometimes referred to as a "face
boss").

294

4.

Mr. Miller performed his management duties at Old Ben's No. 24

Mine.
On February 27, 1979, Old Ben fired Applicant. Applicant contends that
he was discharged because he had made complaints regarding various safety
matters. Old Ben contends that Applicant was fired because he disobeyed
orders and in other respects was not a satisfactory employee.
In support of his case, Applicant alleges that his conduct in connection with four separate safety-related incidents resulted in his discharge.
These incidents are:
1.

The "four-violation incident," which occurred on or about July 18,

2.

The "telephone incident," which occurred on or about July 21, 1978;

3.

The "roof-bolting incident," which occurred in mid-December 1978;

4.

The "longwall incident" of February 26, 1979.

1978;

and

The Four-Violation Incident
On July 18, 1978, Applicant worked the 4 p.m.-to-midnight shift as the
face boss of a continuous miner crew. When he entered the company's conference room at approximately 3:30 p.m., he learned that a Federal inspector
had discovered certain safety violations in his section of the mine. Four
of these violations had to be corrected by 8 a.m. the following morning,
and Applicant was told that this would have to be done by his crew. 1/ The
key issue with respect to this incident concerns Applicant's testimo~y that
he was directed by mine superintendent Lester Grogan to correct the violations and load coal at the same time. Applicant stated that when Mr. Grogan
found out that no coal had been loaded on Applicant's shift, he became
angry. Applicant testified that Robert Travelstead, Old Ben's safety director, shut down the continuous miner until a broken bolt under the seat was
fixed. Applicant contends that it would have been unsafe to operate the
continuous miner without first correcting the violations, and therefore
that his refusal to follow Mr. Grogan's instructions was justified. Additionally, Applicant stated that there was no rock dust in his section of
the mine, and thus he was unable to correct the rock dust violation.
1/

Applicant testified that correcting the violations involved replacing

a headlight on a continuous miner, replacing a broken bolt in an elec-

trical panel under the seat of the continuous miner, cleaning up the area,
and doing rock dusting. The testimony of Respondent's witnesses, including Old Ben's safety director, Robert Travelstead, indicates that the four
violations found by the MSHA inspector did not include the broken bolt under
the seat, but did include a permissibility electrical violation.
Mr. Travelstead and Old Ben's mine superintendent, Lester Grogan, testified,
and I find, that the broken bolt was found after the inspection. I do not
believe, however, that this fact is material to the legal issues presented
in this case.
295

Respondent's witnesses testified that Applicant was not told to operate the machinery while the violations remained uncorrected. Mr. Grogan
testified that he told Applicant to fix the electrical violation and the
headlight on the continuous miner before operating it. He added that when
he later learned of the broken bolt under the seat, and Mr. Travelstead's
order to shut down the machine, "the matter was dropped * * *·" Mr. Grogan's
version of these events was corroborated by the testimony of Mr. Travelstead.
None of the testimony of Applicant's fellow employees confirmed Applicant's
testimony that he was ordered to'mine coal and repair the violations
simultaneously.
The Telephone Incident
Applicant's testimony concerning the telephone incident is essentially
consistent with that of Respondent's witnesses, as well as several of Applicant's co-workers. The telephones broke down in Applicant's section around
July 21, 1978, and were inoperable for two or three days. Management claims
that it did not know that the phones were broken, and that the situation
was remedied as soon as the problem was made known to it. Applicant and
his fellow employees contend that management was informed of the situation,
and that after one or two days the workers refused to mine coal until the
telephones were repaired. The workers felt that this was an unsafe situation.
Management agreed that the miners should not mine coal in the section until
the telephones were repaired, and the miners were given jobs shoveling coal
elsewhere. There is no evidence, however, that Applicant was responsible
for, or involved in, this refusal. One of the miners testified that Applicant "had nothing to do with it." Nor does it appear that management blamed
him for this incident.
The Roof-Bolting Incident
Toward the end of November 1978, Applicant became a section boss of a
crew that operated a longwall miner. 2/ When he was transferred to this
position, he received eight hours of Instruction on the operation of this
equipment. For about the first two weeks, he worked under an experienced
face boss on the longwall miner, and then assumed those duties himself.
He was not, as other mine personnel were, sent to Rend Lake College for
longwall instruction.
The roof-bolting incident occurred in mid-December 1978 in the longwall
area during the midnight-to-8 a.m. shift. Some of the roof had fallen, and
there was a crack in the roof which made it appear unsafe. Applicant's
crew had planned to cut down the roof area around the fall, since Applicant
felt it would be unsafe to bolt the roof. However, Ernest Duckworth, the
longwall coordinator, instructed the crew to bolt it anyway. At this point,
Duckworth left the area. The men started to bolt the roof when Roger Roper,
2/ A longwall miner is a complicated and sophisticated machine which moves
along a section of face approximately 460 feet long, shearing off coal as
it moves. Twelve people are required to operate such a device, which costs
approximately seven million dollars. The section boss thus holds a very
reponsible position.
296

the mine manager, arrived. When Roper learned of the situation, he told
the men to move the roof-bolting machine back out of the way because the
roof looked unsafe. Shortly after the machine was moved, the roof fell
in. Applicant testified that men could have been killed if they had been
under the roof, and the machine could have been damaged. Apparently, an
argument ensued in which Roper blamed Applicant for doing bolting which
was dangerous, and Applicant blamed Duckworth for giving him the order to
do something which Applicant felt was wrong. Applicant also resented the
fact that Duckworth usurped Applicant's authority.· There is no indication,
however, that Applicant made a safety complaint in connection with this
incident.
The Longwall Incident

On February 26, 1979, there was a severe blizzard along the eastern seaboard of the United States. Of between 100 and 125 men who were supposed
to work the midnight-to-8 a.m. shift at Old Ben's No. 24 Mine, only six,
including Applicant, reported to the mine. These six men were assigned to
a make-shift crew on the longwall machine. Another man who reported to work
was posted at the face of the mine to relay telephone messages for safety
purposes. The crew on the longwall.machine included Applicant, another
foreman named Palmowski, and four other men who were either trainees or just
off of trainee status. None of the other men knew how to operate a longwall
miner. At the beginning of the shift, Superintendent Grogan told Palmowski
that he wanted Applicant, who was in charge of the crew, to have the men
replace some "flights" 3/ on the longwall machine. Approximately 75 flights
on the chain had to be bolted into place, a task which required that the
machine be started and the chain moved into position. The equipment did
not have to be actually operated, however, and it was not near the face.
Applicant contends that he did not know how to ·operate the machine; that
his crew was incapable of operating it; that he was totally unfamiliar with
the machine's control panel; and that in order to start the machine, it
would have been necessary to short out its methane detector. 4/ Applicant
felt that this would be a violation of safety laws. Responde~t pointed out
that Applicant was not being asked to mine any coal with the machine, but
merely to start it and move the belt so that the flights could be replaced.
Applicant's crew did not replace any flights on that day. He assigned
the men to do other work. It was not until three or four hours after the
shift began that Mr. Roper telephoned the crew and learned of this. Appli~
cant was fired the following day.

3/ A flight is a metal bar about four inches in diameter and twelve inches
long which is attached to a chain that drags coal towards the conveyor after
it is cut from the face. The flights had to be installed because the longwall miner had recently been moved to a new panel. During the move, the
flights had been removed.
!±./ The methane detector on a longwall miner is a device which stops the
machine from operating if methane is sensed. On the day in question, the
detector was broken, rendering the machine inoperable unless the detector
was circumvented.
297

Concluding Findings and Conclusions of Law
For Applicant to prevail in this action, he must show that his safetyrelated actions constituted "protected activity." This concept has
received considerable attention from the courts under both the 1969 and
1977 Mine Acts. The leading case is Phillips v. Interior Board of Mine
Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974), cert. denied, 420 U.S.
938 (1975). There, the Court held that the plaintiff's notification to his
foreman of possible dangers was an "essential preliminary stage" of those
actions which bring the protection of the Act into play. 5/ Id. at 779.
This view, in the Court's opinion, represented a compromise between two
extremes which the parties had urged upon it:
'We do not think that merely because a discharge originates in a disagreement between a foreman and a miner that
the Mine Safety Act is automatically brought into play.
Nor do we adopt the other extreme, take the bare words of
the statute with their most limited interpretation, and
hold that before a miner's safety complaint is accorded
the protection of the Safety Act the coal miner must have
instituted a formal proceeding with the Secretary of Interior
or his representative. Rather, we look to: the overall
remedial purpose of the statute * * *; the practicalities of
the situation in which government, management, and miner
operate; and particularly to the procedure implementing the
statute actually in effect at the*** mine."
The issues to be determined are whether Applicant's action in any of
the incidents crossed the line from a "disagreement" to "notification * * *
of possible dangers * * *·"
With respect to the four-violation incident, Applicant made no safety
complaint. Applicant's testimony that he was directed to repair the violations in question and load coal simultaneously was not corroborated by
the testimony of any of his fellow miners, and was expressly contradicted
by Mr. Grogan and Mr. Travelstead. Similarly, the telephone incident did
not involve such a complaint. Applicant merely informed management of the
need for a telephone in his section of the mine. There is no evidence that
he was responsible for the refusal of his men to work until the phones were
repaired, nor is there any indication that management blamed him for the
workers' refusal.
The roof-bolting incident was, in my opinion, a mere "disagreement"
between Applicant and management. Admittedly, Applicant was caught between
the orders of two of his superiors and, as is often the case in such a situation, some hard feelings resulted. Applicant believed that Mr. Duckworth
gave him an instruction to do something which was dangerous. When his men
started to carry out those orders, Applicant found himself arguing with
5/ While Phillips was decided under the 1969 Act, it remains the leading
case defining the concept of "protected activity" under the 1977 Act.

298

Mr. Roper. Roper agreed with Applicant that the roof should not be bolted,
and ordered the crew to move the equipment away from the roof. Clearly,
there was no safety complaint made by Applicant to Mr. Roper, as the two
men agreed that the situation was unsafe. Furthermore, Applicant's discussion with Mr. Duckworth did not cross the line from a "disagreement" to a
"complaint."
Thus, if Applicant is to prevail in this case, he must show that there
was something about the longwall'incident which resulted in his being discriminated against for making a safety complaint.
It is pertinent to note that none of the prior incidents occurred
within three months of the date of Applicant's discharge. Although
Mr. Grogan and other management witnesses indicated that they never placed
any information in Applicant's personnel file, nor issued anything else in
writing, which indicated that they were in anyway dissatisfied with
Applicant's performance, there was considerable credible testimony concerning various sources of friction between Applicant and other management
officials. For example, Applicant testified that he was always very
safety-conscious, and that he often became concerned when the crew before
him did not clean up the worksite properly, attach the sucker hose, 6/ or
bolt and maintain the roof in a safe condition. Grogan testified that it
was common for each crew to blame the previous one for such circumstances.
He added that Applicant often did not clean, up his own area as much as he
he should have, and that as a result, Applicant's section was the source
of an abnormally high number of safety violations. Grogan testified that
Applicant often disobeyed instructions, and blamed other shifts and upper
management for his own problems. There was also testimony that Applicant
resented being assigned to the longwall crew since this entailed working
on Saturdays and Sundays.
I agree with Mr. Grogan's assessment of Applicant as a very intelligent
worker with a good deal of potential. Obviously, there was some friction
between the parties, but I do not find that this was due to Applicant's
having made safety complaints. The pivotal question here is whether Applicant's refusal to obey his orders to replace the flights on the longwall
miner constitutes a safety complaint for which he can claim protection under
the Act. The evidence indicates that Applicant was not as well trained in
the operation of the longwall miner as he should have been. Although he
may have been able to figure out how to start the machine on the day in
question, he was justified in declining to do so without further instructions. However, I am more impressed with the fact that he was told to
replace the machine's flights at the beginning of his shift, and although
a telephone was available, he did not inform management of his feelings
until the shift was almost half over and then only after Mr. Roper telephoned him. I think it was incumbent upon Applicant to register his complaint immediately, and tell his supervisor that he could not perform his
~ A sucker hose is an exhaust hose which keeps the mine face free of
methane and other harmful gases.

299

assigned duties without further instructions on the operation of the
machine. Instead of doing this, Applicant simply disobeyed his supervisor's directions. That type of conduct is not protected under
Section 105(c) of the Act.
.
ORDER
The complaint is DISMISSED.

a .. ~/~

r
Edwin s. Bernstein
Administrative Law Judge
Distribution:

Robert J. Araujo, Esq., Old Ben Coal Company, 125 South Wacker Drive #2400, Chicago, IL 60606 (Certified Mail)
John W. Huffman, Esq., Kimmel, Huffman, Prosser & Kimmel, P.O. Box 30,
Carbondale, IL 62901 (Certified Mail)
MSHA, U.S. Department of Labor, Special Investigations, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)

300

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, IOTH FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

6 1980
Civil Penalty Proceeding
Docket No. KENT 79-105

Petitioner
v.

Chisholm Mine

PIKEVILLE COAL COMPANY
Respondent
DECISION
Appearances:

Darryl A. Stewart, Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
John M. Stevens, Esq., Stephens, Combs and Page, Pikeville,
Kentucky, for Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held in Lexington,
Kentucky, on December 20, 1979, at which both parties were well represented
by counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law preferred by counsel during
closing argument, I entered a detailed opinion on the record. It was found
that the violation charged in the withdrawal order did occur. My oral
decision, containing findings, conclusions and rationale appears below as
it appears in the record, other than for minor corrections in grammar and
punctuation:
Turning to Docket No. KENT 79-105, that docket contains
one charge of violation of section 30 CFR 75.~00, the 75.403
violation having been dismissed for failure of evidence previously in this proceeding.
The question involved is whether or not the accumulations as charged in the withdrawal order did exist, and if so,
what the amount of penalty should be based upon the statutory
penalty assessment criteria and any other relevant factor
which might stand either in mitigation or aggravation of the
amount of penalty.

301

As I have previously noted in my decision in the review
proceeding which is related to this penalty proceeding, I
find no question on the record but that the accumulations as
described by inspector Vernon P. Hardin in the order of withdrawal did exist. There was no really serious challenge to
the existence of such accumulations. I found specifically
in the review proceeding that Inspector Hardin's testimony
describing the appearance of these accumulations, the fact
that the rock dusting was inadequate, and the depth and
extent of the same, to be credible. And I so find here.
Having found that the accumulations existed, and that
does constitute the violation itself, I conclude that a violation of 30 CFR 75.400 occurred.
I also find that this is a large company from the standpoint of a three-size spectrum--small, medium and large--since
it had approximately 270 employees at the time of the violation, 285 employees at the present time, and since its coal
production annually runs approximately 680,000 tons per year.
To be more specific, I also find that if one were to take
only the large category of coal companies, that this is not
one of the giants, certainly, of the coal industry, nor would
it be one of the middle range coal companies. This would be
one of the smaller of the large coal companies.
I find that the history of previous violations for this
company is average for a company of this size based upon the
stipulation of the parties, and also based thereon, that any
penalty that I assess in this case and which I am going to be
assessing in this proceeding will not affect the company's
ability to continue in business.
Turning now to the third statutory penalty assessment
factor, whether or not the respondent company proceeded in
good faith to abate the cited violation, I can only conclude
that the company did proceed in ordinary good faith to abate
this violation, there being no evidence to the contrary. I
do note in this connection, in viewing abatement, that even
though the inspector first sighted the violation at 9 o'clock,
the abatement period would run from the time of the issuance
of the order of withdrawal (approximately 2-1/2 hours later).
It would not run from 9 o'clock to 11:30. It did appear to
me that perhaps the operator here was a little slow in correcting the problem. On the other hand, it does appear that
the scoop broke down with a defective hose at the wrong time,
and perhaps other unanticipated misadventures occurred.
With respect to the seriousness of the violation, I find
that 10 employees were exposed to a hazard which itself could

302

be either fire or an explosion. As I have previously noted
in the related review proceeding, I do not find this hazard
to be an "urgent" or an "imminent" one. I do find this to be
a serious violation. Accumulations are one of the serious
violations, and as the Commission has recently noted in its
decision in Old Ben Coal Company, which issued within the
last month, this type of violation is one of the kinds which
contributed to the passage of the 1969 Federal Coal Mine
Health and Safety Act since it is the cataclysmic or
disaster-type of violation. This type of violation will
normally be found to be serious.
In connection with negligence, I find the delay between
9 o'clock and 11:15 which the operator engaged in to be
adverse to any argument that the penalty should be nominal or
small. One of the things which was not shown is whether or
not, when a dangerous situation occurs and a piece of
machinery designed to correct that situation malfunctions,
there is a backup procedure or backup equipment or the like
to cure it. If a fire is in progress and you have a hose
which does not work, it would seem to me that there should be
a backup procedure which would take care of a such a serious
dlndition, or else some procedure or means of diverting
another piece of machinery from another operation into an
area where a danger occurs. While I do not find gross
negligence, and it is very close to gross negligence in my
estimation, I find a high degree of negligence in this case
for allowing this type of condition to exist for that period
of time.

I know of no other factors to consider with respect to
this violation.
In summary, I do find that that violation occurred and
that the penalty factors of seriousness, negligence and size
of the company mandate a substantial penalty. The MSHA proposed assessment of $1,000 is a substantial penalty. I see
no reason to increase it. On the other hand, I see no reason
to reduce that penalty on the basis of this record. So a
penalty of $1,000 for the 75.400 violation contained in Withdrawal Order 065134, dated December, 20, 1978, is assessed and
the Respondent is directed to pay the same to the Secretary
of Labor within 30 days from receipt of my written decision
which will issue after this hearing."

303

ORDER
Respondent, Pikeville Coal Company, is ORDERED to pay a penalty of
$1,000 to the Secretary of Labor within 30 days from the issuqnce date of
this decision.
-1,A ./ / / d' _./-? ~
//./h-tta·~ // /d'J..,~'// / -

Michael A. Lasher, Jr.,
Administr·ative Law Judge
Distribution:
John M. Stephens, Esq., Stephens, Combs & Page, P.O. Drawer 31,
Pikeville, KY 41501 (Certified Mail)
Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of
Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified Mail)
Harrison Combs, Esq., UMWA, 900 - 15th Street NW, Washington, DC 20005
(Certified Mail)

304

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Cl3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB

6 l91J

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

Civil Penalty Proceeding
Docket No. KENT 79-165
Petitioner

v.

Chisholm Mine

PIKEVILLE COAL COMPANY,
Respondent
ORDER APPROVING SETTLEMENT
At the hearing in Lexington, Kentucky, on December 20, 1978, a settlement of the two violations involved in the above docket was accomplished
in the total sum of $975 (Citation No. 65011--$445 and Citation No. 65130-$530). MSHA's total initial assessment was $1,640.
This settlement is approved for the following reasons:
1. MSHA concedes that its initial evaluation of proper penalties may
have been excessive based upon its initial overevaluation of the statutory
factor relating to Respondent's good faith in abating the two violations
in question.
2. The violative conditions described in Cit~tion Nos. 65011 and
65130 are not inherently conditions of sufficient severity to warrant
higher penalties absent aggravated surrounding circumstances.
3.

The settlement amounts are substantial.
ORDER

Respondent, if it has not previously done so, is ORDERED to pay the
stipulated penalties totaling $975 in the above docket to the Secretary
of Labor, within 30 days from the issuance date of this order.
,,./~)':~£..-f::...-::L.-!

I

/'_;--.

.,

!~~t.'':..~t.l/'-

' Michael A. Lasher, Jr., Judge

305

Distribution:
Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department
of Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified
Mail)
John M. Stephens, Esq., Stephens, Combs & Page, P.O. Drawer 31,
Pikeville, KY 41501 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900-15th Street,
NW., Washington, DC 20005 (Certified Mail)

306

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

FEB
PIKEVILLE COAL COMPANY,

6 1900
Contest of Order

Contestant
v.

Docket No. PIKE 79-66

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

Order No. 65134
December 20, 1978
Respondent

Chisholm Mine

DECISION
Appearances:

John M. Stephens, Esq., Stephens, Combs & Page, Pikeville,
Kentucky, for Contestant;
Darryl A. Stewart, Assistant Solicitor, Mine Safety and
Health Administration, U.S. Department of Labor, for
Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held in Lexington,
Kentucky, on December 20, 1979, at which both parties were well represented
by counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law proferred by counsel during
closing argument, I entered a detailed opinion on the record. 1/ It was
found that the violation charged in the withdrawal order did occur. My
oral decision, containing findings, conclusions and rationale appears below
as it appears in the record aside from minor corrections in grammar and
punctuation:
This proceeding involves an imminent danger withdrawal
order, No. 065134, issued on December 20, 1978, which is the
subject of both a penalty proceeding and an application for
review.
Turning first to Docket No. PIKE 79-66, which is the
proceeding for review of the order, the issue presented is
}:_/

Tr. 146-151.

307

whether or not the physical conditions described in the order
did exist, and if so, if such conditions constitute an imminent danger, as that term is defined in section 107(a) of
the 1977 Federal Mine Safety and Health Act.
I preliminarily note that whether or not an imminent
danger exists is not dependent upon the existence of an
actual violation of any of the mandatory safety and health
standards.
I also preliminarily note that two violations of such
standards were specifically stated in the withdrawal order,
one of which, the violation of 30 CFR 75.403, has been previously dismissed upon motion by the Government, and properly I think, when it appeared that the sampling technique
was inadequate.
The withdrawal· order describes the condition as follows:
"Loose coal and inadequate rock dust in depths of three and a
half inches to ten inches deep in the Numbers 2 through 8
Entries and connecting rooms, including the last open crosscut outby the face." The withdrawal order contains other
language which I deem it unnecessary to quote.
The evidence presented indicates that the depth of the
accumulations was from 3-1/2 to 10 incqes, based upon the
testimony of the inspector, which I do find credible.
The inspector also indicated, and I find, that the accumulations ran from 50 to 100 feet in six of the entries and
for approximately 200 feet in the No. 4 entry.
I find that the condition existed on an active working
production shift and that had an imminent danger existed
some 10 employees would have been exposed.
Since I conclude that there is really no serious question, nor has there really been a strong challenge to the
evidence indicating the existence of the accumulations as
described in the order, I do find that the accumulations did
exist. The question then becomes whether or not these physical conditions constitute an imm~nent danger.
The record reveals that the inspector arrived on the
section in the area where the accumulations existed at
approximately 9 o'clock on the morning of December 20,
1978. At that time, he observed the accumulations but
made no measurements. Nor did he take any samples of the
accumulations to determine combustibility.

308

The inspector did visually observe the accumulations and
believed that they had been inadequately rock dusted, that
there was ' 1a thin layer" of rock dust over the material
which appeared to him to be very black. On the other hand,
at 9 o'clock in the morning, the inspector, visually observing this condition, took no action. He returned approximately 2 to 2-1/2 hours later and the condition was found to
have remained present in the area. At this time, the
inspector who is an "electrical inspector," and who was not
equipped with a sampling kit containing sampling equipment to
measure combustibility, did take samples, but these were processed in such a way that the same appeared to be inadequate
for proper sampling analysis. This led in turn to the dismissal of one of the two violations specifically cited in the
withdrawal order, that in 30 CFR 75.403.
The inspector testified that there was present in the
area where the acci.nnulations were present a roof bolting
machine which had splices in its cable, but he also indicated that the splices were adequate and that there was
nothing wrong with the splices. He also testified that
occasionally shuttle cars were known to come in and out of
the area but that there were none at the time he observed
the condition.
I thus find that there was only one potential, I underline potential, ignition source in the area.
In concluding that an imminent danger has not been
established in this case, I emphasize that one of the bases
for finding no imminent danger is that this was not the
type of situation one normally would encounter with respect
to ignition sources where the imminent danger flows out of
accumulations. In this case, there was no evidence indicating that there were sparks actually flying from any
piece of machinery or equipment. There was no evidence,
for example, that there was a belt roller grinding in accumulations or that there was arcing from some defective
piece of equipment. Nor was there evidence in this case
that there were ni.nnerous potential ignition sources which
would perhaps increase the likelihood that a spark or a
fire would result from it, which in turn would be aggravated
by the existence of accumulations" or which would combine with
accumulations to create an explosion.
Here we have, really, one piece of equipment which is
in operable condition. I find that while there was a hazard,
that it is not shown to be innninent. It is not shown to be
urgent.

309

In that same connection, I note that.the inspector
observed substantially the same situation at 9 o'clock
and yet, did not do anything about it. So this detracts
somewhat, in my thinking--had this been a blatant or a
clear cut situation where one senses urgency or imminence
to a hazard, and a serious hazard, that one would act to
clear the area upon the initial observance of the same.
The Government's evidence with respect to imminent
danger, and its position in this case, is also deteriorated
by the fact that the evidence of combustibility of the material has substantially fallen by the wayside by the problem
with the sampling technique, which led to the dismissal of
the 75.403 charge and which in turn, I do note, was described
by the inspector in the withdrawal order itself.
So for those various reasons, I am unable to conclude
that an imminent danger did exist and, accordingly, Order
No. 065134, dated December 20, 1978, is ordered vacated,
the application for review in this case, having been found
to be meritorious.
ORDER
The application having merit, Order of Withdrawal No. 065134 is
VACATED.

~~
/ #'.~/~-Michael A. Lasher, Jr., Judge
Distribution:
John M. Stephens, Esq., Attorney for Pikeville Coal Company,
Stephens, Combs & Page, 321 Second Street, Pikeville, KY 41501
(Certified Mail)
Darryl A. Stewart, Esq., Attorney for United States Department of
Labor (MSHA), 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 Fifteenth
Street, NW., Washington, DC 20005 (Certified Mail)

310

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52(l3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.f.£8

8 1980

SECRETARY OF LABOR,
MINE SAFETY Ai~D HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Docket No. BARB 79-307-P
A.O. No. 15-11348-03002

Petitioner
v.

Docket No. BARB 79-285-P
A.O. No. 15-11348-03001

THE PITTSBURG & MIDWAY COAL
MINING COMP ANY ,
Respondent

Docket No. PIKE 79-129-P
A.O. No. 11348-03004 F
Docket No. KENT 79-74
A.O. No. 15-11348-03006
Docket No. KENT 79-180
A.O. No. 15-13348-03007
Docket No. KENT 79-367
A.O. No. 15-13348-03009
Docket No. KENT 79-269
A.O. No. 15-11348-03008
Docket No. KENT 79-99
A.O. No. 15-11348-03003
Pleasant Hill Surface Mine
Docket No. KENT 79-229
A.O. No. 15-02021-03005
Colonial Strip Mine

DECISIONS
Appearances:

Marvin Tincher, Attorney, Office of the Regional Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for the
petitioner;
George M. Paulson, Esq., Denver, Colorado, for respondent;
Harold A. Hintze, Esq., Salt Lake City, Utah, for proposed
intervenor Ford, Bacon and Davis Utah, Inc.

Before:

Judge Koutras

311

Statement of the Proceedings
These consolidated civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a). Hearings were conducted in Docket Nos. BARB 129-P, BARB
285-P~ and BARB 79-307-P, in Evansville, Indiana, on August 22, 1979, and
the parties appeared and were represented by counsel. Subsequently, the
petitioner filed proposals for assessment of civil penalties in Docket Nos.
KENT 79-74, KENT 79-180, KENT 79-269, and KENT 79-367, and on motion by the
respondent, these four dockets were consolidated with the three heard in
Evansville. The motion was granted because of respondent's assertions that
all of these cases involve the same legal issues as those covered by the
Evansville hearings, namely the question of whether the proposals for assessment of civil penalties should have been served on certain independent contractors and subcontractors performing construction work for the respondent
at its Pleasant Hill Surface Mine. Further, respondent's motions of
February 4, 1980, concurred in by the petitioner, to consolidate Docket Nos.
KENT 79-99 and KENT 79-229, with the previously-filed seven dockets was
granted.
During the August 22, 1979, hearings the parties indicated that they
would jointly prepare and file with me a proposed stipulation and order for
disposition of the cases which were heard, and that such stipulation would
addxess the question of contractor and subcontractor responsibility and
liability for the citations which were the subject of those proceedings.
Thereafter, by letter received October 11, 1979, petitioner advised me that
the parties were unable to agree upon the terms of a stipulation and proposed order as contemplated by the Evansville proceedings and that they had
likewise failed to agree as to appropriate language in a motion by petitioner for continuance of the cases to which respondent would have no objection. At the same time, petitioner filed a motion for an indefinite continuance of all of the ~ockets pending final action by the Commission on the
question concerning the Secretary's discretion to cite a mine/owner-operator
for violations attributable to independent contractors on the mine property.
In support of its motion, petitioner asserted that the parties were unable
to stipulate all facts which would make a resumed hearing in these dockets
unnecessary, but that a decision by the Commission in MSHA v. Monterey Coal
Company, HOPE 78-469 through HOPE 78-476, which addresses-the question of
the Secretary's discretion to cite the mine owner, may be dispositive of
the liability question and that the legal questions regarding the right of
certain contractors to intervene herein as respondents and the appropriate
entities to be held accountable for the violations as such violations might
affect respondent's non-compliance history in future penalty assessments can
then be resolved on the basis of the present record or on a stipulation of
additional facts which do not appear to be in dispute.
On October 22, 1979, respondent filed a motion in opposition to the
petitioner's motion for an indefinite continuance pending the Commission's
decision in the Monterey case, and requested that I proceed with decisions

312

in these cases. In support of its opposition to any further delay, respondent argued that by .awaiting the Commission's decision in Monterey the decisions in the instant cases will be unduly delayed and that even if petitioner
prevails in Monterey it will likely continue to cite mine owner-operators
for administrative convenience rather than to carry our what respo~dent
believes is the intent of Congress, namely, to cite the independent contractor responsible for the violations. Respondent also requested that its contractor, Ford, Bacon & Davis Utah and certain subcontractors be allowed to
intervene and be substituted as parties in these proceedings, that I accept
the offer of the contractor and certain named subcontractors to pay the
civil penalties to which they admit responsibility and liability, that
respondent be dismissed as a party respondent from all of these proceedings, and that none of the penalties for violations assessed in these proceedings be charged against respondent's history of violations at its
Pleasant Hill Mine.
Relying on the Commission's decisions in MSHA v. Monterey Coal Co.,
HOPE 78-469 and HOPE 78-476, November 13, 1979, and MSHA v. Old Ben Coal
Company, VINC 79-119, October 29, 1979 which, I concluded were dispositive of
respondent's "independent contractor" defenses in these dockets, I issued an
order on December 10, 1979, and made the following rulings with respect to
the motions filed by the parties:
1. Respondent!s motion to permit its contractors and
subcontractors to intervene and be substituted as parties was
DENIED.
2. Respondent's request to permit such contractors and
subcontractors to pay the civil penalties for which they
claim responsibility was DENIED.
3. Respondent's motion thatit be dismissed as the
respondent in these proceedings was DENIED.
4. Petitioner's motion for an indefinite continuance
was DENIED.
My order of December 10, 1979, directed the parties to advise me of any
stipulations or agreements as to all issues not in dispute, and any remaining issues which may be required to be tried by additional hearings. In
compliance with my order, respondent- advised me by letter dated January 9,
1980, that the parties were in the process of preparing a stipulation which,
together with the record and exhibits made at the hearings of August 22,
1979, would enable me to decide the case without the need for further evidentiary hearings. Regarding the independent contractor/mine-owner issue,
respondent asserted that the factual question as to why MSHA elected the
respondent as the party to bring these enforcement proceedings against is
still unresolved, but in light of the history of the problem which indicates
that the sole reason it is the respondent is MSHA's continued policy of
enforcing violations committed by independent contractors against the owner

313

of the mine at which the contractor is employed, respondent suggested that
the record contains sufficient evidence for me to decide this issue and it
specifically makes reference to hearing Exhibits R-1 through R-3, which are
identified as follows:
(R-1) - November 17, 1978, Memorandum from MSHA
Assistant Joseph 0. Cook to MSHA District Managers advising
them that "[P]ending issuance of regulations to identify
independent contractors, the instructions contain in memorandums dated June 3 and June 17, 1975, subjects, "Contractors Associated with the Coal Mining Industry" and "Violation Citations Issued to Contractors," respectively, remain
in effect.
(R-2) - June 3, 1975, Memorandum from former MSHA
Assistant Administrator John W. Crawford to MSHA District
Managers, citing the District Court decision in ABC v.
Morton, and instructing all MSHA enforcement personnel to
cite mine operators for all violations observed when
inspecting contractors performing work on coal mine property.
(R-3) - June 17, 1975, Memorandum from MSHA Assistant
Administrator Crawford to·MSHA District Managers, followingup on his June 3 memorandum, instructing MSHA enforcement
personnel to issue violation citations committed by contractors to the mine owner if the citations have not already
been processed under section 109 of the 1969 Act.
In addition to the independent contractor issue, respondent also
requested that I make certain additional findings in regard to the following points of law in my final order concerning these cases:
1. Whether these citations will become part of the
citation history of the Pittsburg & Midway Coal Mining Co.
for the purposes of 30 C.F.R. §l00.3(c).
2. Whether the negligence involved in these citations
must legally be attributed solely to the independent contractor actually committing the safety violation or whether it
can also be attributed to the owner on a theory of vicarious
liability.
3. Whether the fact that the citations involved in
these cases were issued at later dates than the citations
involved in the cases of MSHA v. Old Ben Coal Company,
Docket No. 79-119 and MSHA v. Monterey Coal Co., Dockets
HOPE 78-469 - HOPE 78-476, affects the applicability of·
the Old Ben Coal Company decision to these cases in light
of the different facts involved in and the basis of decision
used by the Mine Safety and Health Review Commission in the
Old Ben Coal Company case.

314

4. Whether the fact that the independent contractors
involved in these cases have petitioned for intervention and
identified themselves to MSHA as the parties legally responsible for the violations involved in these cases affects the
applicability of the Old Ben Coal Company decision in light
of the different facts involved in and the basis of decision
used by the Mine Safety and Health Review Commission in the
Old Ben Coal Company case.
In further response to my order of December 10, 1979, petitioner advised
me by letter dated January 9, 1980, that the parties had reached agreement
on a stipulation which they believe will enable me to dispose of the cases
without further hearing and that as soon as it is finalized it would be filed
with me for further consideration. In addition, petitioner advised that the
agreement reached did not represent a proposed settlement of the cases since
the parties are seeking to preserve their appeal rights in light of developments in the Old Ben and Monterey cases.
On January 25, 1980, the petitioner and the respondent submitted their
joint stipulation and agreed that these proceedings may now be disposed of
on the basis of the present record and documents filed, including all pleadings, motions, exhibits, transcript of hearing, orders and stipulations and
that the parties' rights of appeal are expressly reserved. However, in his
transmittal letter, respondent's counsel states that there remain three
questions to which the parties are unable to stipulate, namely:
1. The reasons for MSHA selecting the respondent rather
than the contractors for enforceement of the citations.
2. Whether the independent contractors in these proceedings are "independent contractors" within the meaning
of MSHA's proposed Rules, 30 CFR 45, published in the Federal
Register on August 14, 1979.
3. Whether the independent contractors involved in
these cases have admitted responsibility for the citations.
(In this regard, respondent invites my attention to pgs.
28-29 of the August 22 Evansville hearing where contractor's
counsel Hintze stipulated to liability on behalf of at least
three of the contractors).
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 U.S.C. § 801 et seq.
2.

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

3.

Commission Rules, 29 CFR 2700.l et seq.

315

Issues
The principal issues presented in these proceedings are (1) whether
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of civil penalties filed,
and, if so, (2) the appropriate civil penalties 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 these decisions.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance after
notification of the violation.
Additional issues raised by the parties are identified and disposed of
in the course of my findings, conclusions, and rulings made in these cases.
Discussion
Docket No. BARB 79-307-P
104(a) Citation No. 399328, September 19, 1978, 30 CFR 77.1701: "The
ho 012 TD-15 Dozer and 613 scraper used by Koester Const. Corporation are
not provided with seat belts. Roll protection is provided. Responsibility
of Roger Huser, project manager."
Docket No. BARB 79-285-P
104(a) Citation No. 399321, September 18, 1978, 30 CFR 77.1605(a):
"Link belt mobile crane used by J & F Const. Co. The over head cab window
is not in good condition in that the glass is broken with fragged edges.
Responsibility of Roger Huser, project manager."
104(a) Citation No. 399322, September 18, 1978, 30 CFR 77.208(d):
"Oxygen and acetylene tanks used by J & F Const. Co. were not secured in a
safe manner. Responsib~lity of Roger Huser project manager."
104(a) Citation No. 339323, September 18, 1978, 30 CFR 77.1109(a):
"The supply trailer used by J & F Const. Co. is not provided with a fire
extinguisher. Responsibility of Roger Huser, project manager."
104(a) Citation No. 399324, September 18, 1978, 30 CFR 77.1710(e):
"Ted Rodgers, working for Davco Corporation is not wearing suitable foot
wear. Responsibility of Roger Huser, project manager."

316

104(a) Citation No. 399325, September 18, 1978, 30 CFR 77.410: "Red
Ford back dump and John Deere back hoe used by Davco Corp. are not provided
with back-up alarms. Responsibility of Roger Huser, project manager."
104(a) Citation No. 399326, September 18, 1978, 30 CFR 77.402: "Hand
held saber saw and hand held portable grinder is not equipped with controls
requiring constant hand or finger pressure to operate used by Davco Corp.
Responsibility of Roger Huser, project manager."
104(a) Citation No. 399329, September 19, 1978, 30 CFR 77.1109(c)(l):
"The 613 scraper and Ford 7000 service truck used by Koester Corporation are
not provided with fire extinguishers. Responsibility of Roger Huser,
project manager."
104(a) Citation No. 339330, September 19, 1978, 30 CFR 77.1102: "The
Ford 700 service truck used by Koester Corp. is not provided with warning
sign against smoking and open flame. Responsibility of Roger Huser, project
manager."
104(a) Citation No. 399335, September 26, 1978, 30 CFR 77.1713(a):
"Daily on-shift safety inspections are not being made and recorded by a
certified person at the mine. Responsibility of Roger Huser, project
manager."
Docket No. PIKE 79-129-P
This docket concerns two citations in which MSHA elected to waive the
assessment formula contained in 30 CFR 100.3 in determining the civil penalties, and the citations were "specially assessed" under section 100.4.
104(a) Citation No. 399333, September 21, 1978, 30 CFR 77.400(a): "The
hand held Black & Decker cut-off machine was not provided with a guard. The
cut-off machine was being used by J & F construction Co. N 11. This citation
was issued during a fatality accident investigation."
104(a) Citation No. 399334, September 21, 1978, 30 CFR 77.404(a):
The Black and Decker portable hand held cut off machine
was not maintained in safe working condition in that an over
size unguarded blade had been installed and used. The blade
disintegrated resulted [sic] in a fatality accident. The
machine was rated to use no larger than a 12 inch diameter
blade. The blade in use was approximately 19 inches in
diameter at the time of investigation (J & F Const. Co.
IDNll).

Docket No. KENT 79-180
104(a) Citation No. 0795019, April 16, 1979, 30 CFR 77.1605(b): "The
White No. SO Chevrolet truck used by Coal Rigging Contracting Corp. was not
provided with a parking brake. Responsibility of Sonny Arnold, foreman."

317

104(a) Citation No. 0795020, April 16, 1979, 30 CFR 77.205(b). "The
travelway in draw off tunnel used by Coal Rigging Contracting Corp. was not
kept clear of stumbling and tripping hazard. Responsibility of Sonny Arnold,
foreman."
104(a) Citation No. 0795229, April 16, 1979, 30 CFR 77.402: "The 3/8
and 1/2 electrical drills used by Cambron Electrical Co. was not equipped
with controls requiring constant hand or finger pressure to operate."
Docket No. KENT 79-74
107(a) Citation No. 400843, December 31, 1978, 30 CFR 77.404: "The hand
held grinder serial No. 627199 electric powered 115 volt and RPM rated
6500 was provided with a buffing disc rated maximum 6000 RPM. This grinding
device was connected to the power source. Under the supervision of J & F
Construction Co. Jim Bethel."
Docket No. KENT 79-269
107.(a) Citation No. 0794248, April 11, 1979, 30 CFR 77.404(a): "The
Lorain Crane No. 11 operated by Coal Rigging Construction Co. at the Pleasant
Hill Mine construction site is hereby ordered to be removed from service in
that the hoist brake will not ~old a load and the swinger will not reverse
in a reasonable distance."
107(a) Citation No. 0794249, April 11, 1979, 30 CFR 77.404 (a): "The
Grove Crane No. CP operated by Coal Rigging Construction Co. at the Pleasant
Hill Mine construction site is hereby ordered removed from service in that
the swing lock brake is not working."
Docket No. KENT 79-367
104(a) Citation No. 0797717, August 1, 1979, 30 CFR 77.204: "At tipple
construction site on third floor of tipple the opening for the elevator was
not protected. On second floor the opening for wash box was not protected
and sump in bottom of raw coal hopper was not protected. (Coal Rigging
Contractors)."
104(a) Citation No. 0797718, August 1, 1979, 30 CFR 77.205(b): "At
tipple construction site on third floor and second floor of tipple travelways
where persons were required to travel and work were not kept clear of all
extraneous material and stumbling hazards. (Coal Rigging Contractor)."
Docket No. KENT 79-99
104( a) Citation No. 399327, September 18, 1978, 30 CFR 71. 400: "Bathing
facilities change room and sanitary flush toilets are not provided for the
employees at the mine. Responsibility of Roger Huser, project manager."
104(a) Citation No. 399332, September 21, 1978, 30 CFR 77.701: "The
electric powered hand held cut off machine was not provided with frame

318

grounding in that a two conductor exterior cable was used and the machine
was not double insulated. This machine was in service at the shop office
construction site. J & F Construction Co. I.D. N 11."
104(a) Citation No. 400844, December 21, 1978, 30 CFR 77.701:
The Fornly ram pressure machine electric motor was not
frame grounded in that the grounding prong was broken off the
plug and a two conductor extension cord was in use and the
ventilation fan was not frame grounded in that the ground
prong was missing from the plug located in the test building
near the office trailers (Geological Associates) under Ford,
Bacon Davis Utah Contractors.
Docket No. KENT 79-229
104(a) Citation No. 079425, May 15, 1979, 30 CFR 77.1102: "Warning
signs are not posted at the liquid portable storage tank located at the
Smith-Miller construction site. The responsibility of Guy Brownbuger."
104(a) Citation No. 0794254, May 15, 1979, 30 CFR 77.1109(e)(l):
''Portable fire ~xtinguishers are not provided at the liquid portable storage
tank located at the Smith-Miller construction site. The responsibility of
Greg Brownbuger."
Stipulations
During the hearing of August 22, 19.79, the parties agreed to the
following stipulations (Tr. 7-10):
1. Respondent Pittsburg and Midway has been inspected
previously at two surface mines operated in Western Kentucky.
A significant number of safety and health violations of the
act involved had been disclosed by MESA and MSHA, admitted at
this time, by those inspections for which ordinary negligence
is conceded. Respondent exhibited good faith in correcting
or abating those past violations.
2. There was no gross negligence involved in any of
those violations; the number of such violations was not
large and the penalties were not large.
3. The respondent is a wholly-owned subsidiary of
Gulf Oil Company, and the size of its business in 1978 was
approximately eight million tons of coal produced.
4. Respondent's operations, including those at the
Pleasant Hill Mine, affect commerce within the meaning of
the statute and any assessment of penalties approximating
those proposed in the matters pending for hearing will not
seriously affect P and M's ability to continue in business.

319

5. Copies of the citations contested in this proceeding were identified as Exhibits P-1 through P-11 and P-13.
And those, as well as a copy of the report of the fatality
investigation which was identified as P-12 may be received
in evidence. There is no issue as to the correct sections
of the safety regulations cited.
6. Respondent exhibited good faith in correcting or
causing correction and abatement of the alleged conditions
on which the citations involved in these proceedings are
based.
7. Bill Brasher, an employee of P and M, was mine
superintendent of respondent's Pleasant Hill mine during
the period involved in these proceedings.
8. Roger Huser was an employee of the Gulf Mineral
Resources Company, a division of the Gulf Oil Company, and
was assigned to the P and M mine construction site, the
Pleasant Hill surfac~ mine.
9. No coal has been or was being mined by the respondent at the Pleasant Hill .mine at the time involved in these
proceedings. Preparation and construction of the facilities,
including a building to house shop offices and abating [sic]
facilities, plus a railraod spur track and a loading hopper
were in progress under construction agreement -- a construction agreement between P and M and Ford, Bacon and Davis
Utah, Inc. which will be designated hereafter as the contractor. Various parts of the construction were being carried
out by subcontractors pursuant to agreements between them
and the contractor. There was no privity contract between
P and Mand the subcontractors, including those identified
in Exhibits P-1 through P-13.
Findings and Conclusions
The Independent Contractor Issue
MSHA's prevailing enforcement policy at the time the citations in these
proceedings were issued was to cite the mine owner for all citations generated on its mine property, regardless of the fact that they resulted from
work being done by contractors. Further, although MSHA has argued that it
does not routinely issue mine identification numbers to contractors, two of
the citations issued in PIKE 79-129-P, contain mine identification numbers
apparently assigned to the J & F Construction Company. Further, with the
exception of Citation No. 399327 (KENT 79-99) for lack of bathing and toilet
facilities, and one citation issued in BARB 79-285-P (Citation No. 399335)
for failure to conduct a daily onshift examination, all of the citations
contain findings by the inspector that the equipment---cTted or the practices

320

constituting violations resulted from work being performed by contractors,
and they are identified collectively as follows:
1.

Koester Construction Corporation.

2.

J & F Construction Company.

3.

Davco Corporation.

4.

Coal Rigging Contracting Corporation.

5.

Cambron Electrical Company.

6. The parties have stipulated that citation 399335 is
the responsibility of contractor Ford, Bacon & Davis Utah Inc.
(See also, Tr. 19).
7.

Smith-Miller Construction Company (KENT 79-229).

8.

Geological Associates (Citation 400844-KENT 79-99).

MSHA's enforcement policy is reflected in the aforementioned hearing
Exhibits R-1 through R-3. The November 17, 1978, Memorandum (R-1), sets
forth MSHA's general inspections policies, and on page 9, states as follows:
"Pending issuance of regulations to identify independent contractors, the
instructions contained in memorandums dated June 3 and June 17, 1975, subjects, "Contractors Associated with the Coal Mining Industry" and "Violation Citations Issued to Contractors," respectively,' remain in effect."
The June 3, 1975, MSHA Memorandum (R-2), quotes pertinent portions of
District Court Judge Gessell's opinion in ABC v. Morton, and contains the
following instructions:
Memoranda of April 19, 1973, "Issuing Notices and Orders
to Contractors on Mine Property" and June 29, 1973, "Assignment of identification numbers to contractors," are hereby
rescinded.
We will continue, as in the past, to inspect mine construction work, however, where violations or other hazardous
conditions or practices are observed, appropriate Notices
and/or Orders shall be issued to the mine operator (they
shall not be issued to the contractor or construction company
unless the contractor or construction company is also the
mine owner, etc.). In accordance with the Court's ruling the
mine operator is responsible for the contractor's compliance
with the Regulations and the Act.
Effective upon receipt of this memorandum, Coal Mine
Health and Safety enforcement personnel will cite coal mine

321

operators for all violations observed when inspecting contractors performing work on coal mine property.
MSHA's June 17, 1975 Memorandum (R-3), states as follows:
As a follow-up to our memorandum dated June 3, 1975,
concerning contractors doing mine construction work, this
relates to the handling of citations issued to such contractors prior to the receipt of our June 3 memorandum.
Notices and/or Orders, citing violations and issued to
contractors will be reissued to the appropriate mine operator, except in instances where such citations have been
processed pursuant to Section 109 of the Act, penalties paid
and/or the cases closed. All such citations that have not
been transmitted to the Assessment Office should be retained
in the issuing office and reissued to the proper mine operator prior to transmitting.
Notices and/or Orders issued to mine construction contractors, citing violations and transmitted to the Assessment
Office, for processing under Section 109, but penalties have
not been paid nor the case closed, will be r~turned to the
appropriate issuing office to be reissued to the proper mine
operator.
In cases where Notices and/or Orders have been referred
to the Associate Solicitor, Division of Mine Health and
Safety, the Associate Solicitor will (1) notify the Assessment Office which will notify the District Office to reissue
the Notice and/or Order to the proper mine operator and
(2) file a motion to substitute parties.
All Notices and/or Orders affected shall be modified and
reissued to the appropriate mine operator. The following
guidelines shall be adhered to:
1. Notices (and Orders citing violations) issued to
contractors that have not been disposed of under Section 109
of the Act shall be modified and reissued to the appropriate
mine operator.
2. In modifying and reissuing the citations, the
inspector will use the date of the modification, however he
will refer to the original citation by No. and date and
attach a copy of the original to the modification.
3. On Modification, Form 2, following the statement,
"is hereby modified as follows, * * *" use an explanation of
what is being done and why, such as, By virtue of the U.S.

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District Court for the District of Columbia, decision in
Civil Action No. 1058-74, this modification is made to show
the mine o·wner, in lieu of the contractor, as the operator
charged with noncompliance of the cited regulations (see
attachments).
Respondent's Argument
Respondent takes the position that petitioner should have cited the
independent contractors identified in these proceedings for the violations
described in each of the citations issued and that each of these contractors are independent contractors within the meaning of MSHA's proposed
rules, 30 CFR, Part 45, published in the Federal Register on August 14,
1979. Under the circumstances, respondent argues that it was improper and
contrary to the Act for MSHA to cite the respondent for the violations
solely for the reason that respondent is the owner-operator of the mine.
Inasmuch as the contractors have admitted responsibility for the violations,
respondent argues further that they should be permitted to intervene in
these proceedings and that respondent's motion that it be dismissed as a
party-respondent should have been granted.
Petitioner's Argument
MSHA' s position is that respondent was the o.perator of the mine in
question at the time the citations were issued and therefore it was proper
and appropriate under the circumstances to cite respondent for those violations, and that its motion to be dismissed as a party-respondent was properly denied.
It seems clear to me from the facts presented in these proceedings that
at the time the citations were issued and the petitions for assessment were
filed, MSHA's enforcement policy was that owner-operators were liable for
the violations of their independent contractors. Although respondent has
made a most persuasive and cogent argument with respect to the basic unfairness in an enforcement scheme which penaltizes a mine owner for violations
ove·r which it has no control, and which were caused by the independent contractors and did not endanger any of the mine owners' employees, I am constrained to follow the decisions of the Commission in MSHA v. Old Ben Coal
Company, VINC 79-119, October 29, 1979, and MSHA v. Monterey Coal Company,
HOPE 78-469 and HOPE 78-476, November 13, 1979, and I conclude that those
decisions are controlling and dispositive of the independent contractor
defenses raised by the respondent in these proceedings. Although the Commission seemingly recognized the folly of MSHA's continued policy decision
to cite only mine owners for the violations attributable to independent contractors, it opted not to disturb that policy for the sake of "consistent
enforcement." As I interpret these Commission decisions, the only conclusion I can draw is that the Commission has at this point in time given its
blessing to MSHA's policy decision to enforce the Act only against owneroperators and not contractors, and in so doing, the Commission has specifically permitted the Secretary additional time within which to promulgate

323

and implement his proposed independent contractor regulatory guidelines as
published in the Federal Register on August 14, 1978, 44 Fed. Reg. 4774647753. Under these circumstances, respondent's independent contractor
defenses raised in these proceedings are rejected and I find and conclude
that MSHA properly cited the respondent for the violations in question and
that the respondent is liable for them. I am not persuaded by respondent's
arguments that the factual record adduced in these proceedings indicates
that the identified independent contractors are independent contractors
within the meaning of MSHA's proposed rules. Those rules are at this point
in time only proposed rules and have not been promulgated or implemented as
final MSHA guidelines.
In MSHA v. Republic Steel Corporation, IBMA 76-28 and IBMA 77-39,
decided by the Commission on April 11, 1979, it was held that under the
1969 Act, a mine owner may be held responsible for violations of the Act
created by independent contractors even though none of the mine owner's
employees were exposed to the violative conditions and the mine owner could
not have prevented the violations. In Old Ben, a case decided under the
1977 Act, the Secretary conceded that Old Ben was proceeded against under
an agencywide policy to enforce the Act against only owner-operators for
contractor violations. Although the Commission recognized the fact that the
Secretary's enforcement policy "had its roots in the district court's decision in ABC v. Morton," which was subsequently reversed, indicated that any
doubt concernng the Secretary's ability to proceed against contractors was
dispelled by the passage of the 1977 Act, and observed that "if the .Secretary's decision to proceed against Old Ben was made pursuant to an enforcement policy based solely on the discredited foundation of ABC v. Morton,
there would be no doubt that his decision was improper," the Commission,
nonetheless, affirmed Old Ben on the basis of the Secretary's assertion
that its enforcement policy was an interim one pending adoption of its
proposed independent contractor regulations.
In its posthearing briefs filed in these proceedings, respondent suggests that the facts in these proceedings may be different from those which
prevailed at the time Old Ben and Monterey were decided. It further suggests
that the basis for the Commission's decisions in those cases may be different
from those presented here in that the citations involved in these cases were
issued at later dates than those involved in Old Ben and Monterey. After
careful analysis of the Commission's decisions in Old Ben and Monterey, I can
find no factual distinctions in the cases, nor can I find any distinctions in
the Commission's rationale for upholding the Secretary's prevailing policy.
In the instant cases, it seems clear from the record that the Secretary's
owners-only enforcement policy was bottomed on the ABC v. Morton decision,
and notwithstanding the publication of proposed rules-covering independent
contractors, I can perceive no change in that policy until such time as the
rules are adopted and promulgated. As I interpret the Commission's decisions
in Old Ben and Monterey, the Commission has permitted the Secretary to buy
additional time within which to implement his new rules for enforcement and
no amount of semantical or rationalized arguments have persuaded me to the
contrary, irrespective of the fact that I may disagree with the Commission's

324

rationale or am in accord with Commissioner Backley's well-reasoned dissents
with respect to the independent contractor liability issue. Under the circumstances, respondent's suggestions that there are factual differences in
the cases insofar as the respondent and the proposed contractor intervenors
are concerned must be rejected.
In the course of the arguments at the hearing, and in arguments presented by the respondent in its motions objecting to any continuance of these
dockets, filed October 22, 1979, respondent alluded to my prior ruling of
April 24, 1979, in MSHA v. Morton Salt Company, DENV 79-161-PM, where I took
the position that on the facts there presented, since the independent contractors were crying out to be recognized as party-respondents ready, willing, and able to assume their responsibilities and liabilities for violations
and citations issued under the Act, MSHA's continued ignoring of this fact
and its rigid enforcement policy defied logic, was basically unfair, and did
little to promote and assure the safety of miners. I therefore dismissed
MSHA's proposals to assess civil penalties against Morton Salt for three of
the citations included in its proposals, and one remaining citation is still
to be adjudicated as chargeable to Morton. Since my ruling dismissing the
three citations was an interlocutory ruling rather than a final decision
constituting my final disposition of the case, the Commission, on June 4,
1979, dismissed MSHA's petition for discretionary review of my order as
premature, and in so doing noted that it expressed no view on whether the
issues raised by MSHA were reviewable through the interlocutory review procedures provided for in Commission Rules 29 CFR 2700.52 and 61. Since my
Morton Salt ruling was made prior to the Commission's decisions in Old Ben
and Monterey, it would now appear that my ruling dismissing MSHA's proposal
to assess Morton Salt for three violations may not stand Commission scrutiny
in light of the developments in Old Ben and Monterey. Under the circumstances, my prior ruling of December 10, 1979, denying respondent's motion
to be dismissed as a party-respondent in these proceedings is reaffirmed.
My prior rulings made in the December 10, 1979, order denying respondent's motion to permit its contractors and subcontractors to intervene
and be substituted as parties are likewise reaffirmed. In Morton Salt, I
rejected a similar motion by Morton to intervene its independent contractor
on the ground that my interpretation of the then-prevailing Commission
Interim Rules, 29 CFR 2700.10, limited participation by certain "parties"
to hearings, and that the rules may not serve as a basis for transforming
such "parties" into respondents not named by the Secretary as respondents
subject to civil penalty assessments. The Commission's current Rules,
29 CFR 2700.4, confer party status on operators who are "named as parties
or permitted to intervene," and -while subsection (c) permits the filing of
a motion to intervene at any time before a hearing on the merits, and
requires the party to show its interest and establish that intervention
will not unduly delay or prejudice the adjudication of the issues, I can
find no authority in the rules to support a substitution of a party for
purposes of civil penalty assessments and respondent has cited none.
Further, for these same reasons, respondent's motion of February 4, 1980,
to permit contractor Smith-Miller Construction Company to intervene in
Docket No. KENT 79-229, is likewise DENIED.

325

My prior ruling made in the December 10, 1979, order denying respondent's request to permit the identified contractors and subcontractors in
these proceedings to pay the civil penalty assessments for which they claim
responsibility and liability is reaffirmed. Further, respondent's assertion
that Smith-Niller Construction Company has agreed to pay the penalties
assessed in Docket No. KENT 79-229, insofar as it seeks an order from me
accepting this agreement, is likewise rejected and DENIED. I can find no
authority for summarily entering an order assessing civil penalties on the
basis of a stipulation or agreement entered into by a party-respondent and
a non-party contractor, nor can I find any authority for forcing MSHA to
accept a unilateral offer to pay civil penalty assessments, Zeigler Coal
Company, 7 IBMA 312 (1977), and it makes no difference that MSHA is unwilling to stipulate in these proceedings that the named independent contractors
have each admitted responsibility for the citations and are willing to pay
the penalties. With regard to this question, I find that the record as a
whole supports the conclusion that the independent contractors are willing
to assume responsibility for the penalties assessed in these proceedings
(Tr. 28-29, 33; p. 4 of January 25, 1980, stipulation).
Fact of Violation
Respondent concedes that all of the conditions and practices described
on the face of the citations issued in these proceedings constitute violations of the cited safety standards, and that the citations were properly
issued (Tr. 28; January 25, 1980, stipulation, p. 2). Accordingly, I find
that the fact of violation as to each of the citations issued in all of
these cases has been established and they are all affirmed. Further, on
the basis of my findings and conclusions concerning respondent's liability
for these citations, I conclude that they were properly issued to the
respondent and that the respondent is liable for any civil penalties
assessed for the citations.
Size of Business and Affect of Civil Penalties Assessed on the Respondent's
Ability to Continue in Business.
At the Evansville hearing, the parties stipulated that respondent is a
wholly-owned subsidiary of Gulf Oil Company, and that the size of its mining
business in 1978 was approximately 8 million tons of coal produced. The
parties also stipulated that respondent's operations, including those at the
Pleasant Hill Mine, affect commerce within the meaning of the Act. Under
the circumstances, I conclude that for purposes of any civil penalty assessments levied in these proceedings respondent may be considered a large mine
operator.
The parties stipulated that all of the citations issued in these proceedings were properly issued and that the proposed penalty assessment
amounts are fair and reasonable under the circumstances known to have
existed at the time the citations issued. Further, the parties agree and
stipulate to the fact that MSHA's proposed penalties as reflected in its
pleadings are appropriate to the size of respondent's business, and that

326

payment thereof will not seriously affect respondent's ability to continue
in business. The .stipulation and agreement on this issue is adopted as my
finding and conclusion.
Good Faith Compliance
The parties stipulated that respondent, as well as the independent contractors, demonstrated good faith in causing correction and timely abatement
of the conditions or practices cited by the inspectors in these proceedings.
I accept and adopt this stipulation as my finding in these proceedings.
Gravity
The gravity of the conditions or practices described on the face of each
of the citations issued in these proceedings, with the probability of the
occurrence of the event against which each safety standard is directed, and
the employee exposure to possible injury, is reflected as follows in the
January 25, 1980, stipulations:
Docket No. BARB 79-307-P
Citation No.

Standard

Probability

Exposure

399328

77.1710(i)

moderate

2 employees

Gravity
of Injury
lost work days

Docket No. BARB 79-285-P
Gravity
of Injury

Citation No.

Standard

Probability

Exposure

399321
399322
399323
399324
399325

77 .1605( a)
77 .208(d)
77 .1109( a)
77.1710(e)
77 .410

moderate
moderate
moderate
moderate
moderate

1 employee
4 or more
4 or more
1 employee
4 or more

399326
399329
399330
399335

77 .402
77 .1109(c)(l)
77 .1102
77.1713(a)

moderate
substantial
moderate
moderate

2 employees
1 employee
1 employee
30 employees

lost work days
lost work days
lost work days
lost work days
permanent
disability
lost work days
lost work days
lost work days
lost work days

Gravity
of Injury

Docket No. BARB 79-129-P
Citation No.

Standard

Probability

Exposure

399333

77.400(a)

imminent

1 employee

327

permanent disability or death

399334

77.404(a)

imminent

1 employee

permanent
disability or
death

Docket No. BARB 79-180-P
Citation No.

Standard

Probability

Exposure

Gravity
of Injury

0795019
0795020
0795229

77 .1605(b)
77.205(b)
77 .402

moderate
moderate
moderate

1 employee
1 employee
1 employee

lost work days
lost work days
lost work days

Docket No. KENT 79-74-P
Citation No.

Standard

Probability

Exposure

Gravity
of Injury

400843

77 .404

substantial

1 employee

lost work days

Gravity
of Injury

Docket No. KENT 79-269-P
Citation No.

Standard

Probability

Exposure

0794248

77.404(a)

imminent

1 employee

0794249

77.404(a)

imminent

1 employee

permanent
disability
permanent
disability

Docket No. KENT 79-367
Citation No.

Standard

Probability

Exposure

Gravity
of Injury

797717
797718

77. 204
77.205(b)

substantial
moderate

1 employee
1 employee

lost work days
lost work days

All of the citations issued in these dockets, with three exceptions,
were issued pursuant to section 104(a) of the Act. The one citation issued
in Docket No. KENT 79-74-P, and the two citations issued in Docket No.
KENT 79-269-P, were imminent danger orders issued pursuant to section 107(a).
The first one ordered the removal from service of a hand-held grinder which
was connected to a power source and which was equipped with an overly-rated
(RPM) buffing disc. The other two ordered the removal from service of a
crane which had a hoisting brake which would not hold a load and a swinger
which would not operate in reverse in a reasonable distance, and a second
crane which had an inoperative swing lock brake. Aside from the fact that
the equipment cited was removed from service, and in addition to the stipulated characterization of the probability of any injury resulting from these
citations as "substantial" and "imminent," I have also weighed the fact that

328

the violations were cited in withdrawal orders, Zeigler Coal Company, 3 IBMA
366 (1974), and I find that these citations were seri.ous.
In Docket No. PIKE 79-129-P, although both citations were issued pursuant to section 104(a) of the Act, for failure to provide a guard for a
cut-off machine, and for using an over-sized blade on that machine, the
conditions cited resulted in a fatality and the record reflects that MSHA
"specially assessed" these citations in light of that fatality. Under the
circumstances, I conclude and find that these two violations were very
serious.
Docket No. BARB 79-307-P, concerns a citation for failure to provide
seat belts for a dozer and a scraper. Although the citation reflects that
the equipment was provided with roll protection, the standard requires the
use of seat belts in a vehicle where there is a danger of overturning.
Since the equipment was provided with roll protection, an inference may be
made that the equipment cited could overturn and injure the operators. The
use of seat belts would provide additional protection for the operators and
I conclude that the failure to provide them as required resulted in a
serious violation.
Docket No. KENT 79-99 concerns three citations for (1) failure to provide bathing, change, and toilet facilities at the mine, (2) failure to frame
ground an electric hand-held cut-off machine, and (3) failure to frame ground
an electric machine motor and ventilation fan. Failure to provide necessary
toilet facilities could lead to hygiene and discomfort problems and I find
that was a serious violation. Failure to properly ground electrical equipment could lead to shock and electrocution and I find these violations are
serious.
Docket No. KENT 79-229 concerns two citations for failure to post warning signs at a storage tank and failure to provide fire extinguishers at a
storage tank location. I find that in the event of a fire there would be
no means to control it in view of the absence of fire extinguishers and the
failure to post warning signs could lead to employees not being aware of
fire hazards. I find these violations are serious.
Docket No. BARB 79-285-P concerns nine citations for (1) broken glass
and fragged edges on a windshield of a mobile crane; (2) failure to secure
oxygen and acetylene tanks in a safe manner; (3) lack of a fire extinguisher
in a supply trailer; (4) an employee's failure to wear suitable footwear;
(5) lack of back-up alarms on a dump truck and a back hoe; (6) failure to
equip a saber saw and grinder with constant pressure hand or finger controls;
(7) failure to provide fire extinguishers for a scraper and a service truck;
(8) failure to provide a "No Smoking" sign on a service truck; and (9) failure by a qualified person to conduct and record daily onshift inspections.
Considering the circumstances described on the face of each of the
aforesaid citations, and the stipulations of the parties which reflect that

329

lost work days would result in the event of an injury caused by the conditions cited to one or more employees, I conclude that the conditions cited
as violations were serious.
Docket No. KENT 79-367 concerns two citations for (1) failure to provide protection for an elevator opening in the tipple and in an opening at
the wash box in the raw coal hopper, and (2) failure to maintain two tipple
travelways where persons were required to travel and work clear of extraneous
material and stumbling hazards. These standards are obviously intended to
prevent injuries to employees from falling into unprotected openings and
from stumbling or tripping in areas where they are required to work or
travel, and coupled with the stipulations concerning employee exposure to
such hazards, I conclude that the conditions cited as violations were
serious.
Docket No. KENT 79~180 concerns three citations for (1) no parking
brakes on a truck; (2) failure to keep a tunnel travelway clear of stumbling
and tripping hazards; and (3) failure to equip two drills with constant
pressure hand or finger controls. On the basis of the stipulations, an~
considering the conditions described on the face of the citations, I find
these violations were serious.
Negligence
At the hearing, the parties stipulated that there was no gross negligence involved in any of the citations covered in these proceedings.
Further, the subsequent stipulations filed January 25, 1980, on this issue
reflect agreement by the parties that there was negligence involved in each
of the citations presented in all of these dockets. Aside from the question
as to the entity against whom negligence should be attributed and whether
respondent should be held accountable for any negligence with respect to the
conditions or practices cited as violations, I find and conclude that the
record supports a finding that each of the citations resulted from a failure
to exercise reasonable care to prevent the conditions or practices which were
known or should have been known to exist at the time the citations issued,
and that in such circumstances, the violations resulted from ordinary
negligence.
With regard to the question of whether the negligence involved in the
citations must be legally attributable solely to the independent contractors
or whether it can also be attributable to the respondent mine owner on a
theory of vicarious liability, I take note of the fact that at the time the
citations were issued no coal was being produced at the mine in question
(Tr. 30), and the parties stipulated and agreed that the contract (Exh.
R-4) entered into between the respondent and its contractor, Ford, Bacon
and Davis Utah, Inc., as well as its subcontractors with regard to the
Pleasant Hill construction or mine site, reflects that each contractor had
control over their respective employees as to health and safety, each had
a continuing presence in the mine for a substantial period of time to perform the work that they were doing, each had complete control over their

330

portion of the work, and the only control that the Pittsburg and Midway
Coal Mining Company.had was as to the results to be obtained. Further, the
parties stipulated that Ford, Bacon and Davis Utah, Inc., is an independent
contractor, that it is not the agent of respondent Pittsburgh and Midway
Mining Company in performing the work, that the contractor had control of
the work, and that the respondent mine owner only had an interest in the
results to be obtained from that work (Tr. 15-16). Further, the January 25,
1980, stipulation reflects an agreement by the parties that Ford,, Bacon and
Davis Utah's subcontractors, namely, J & F Construction Company, Koester
Contracting Corporation, Davco Corporation, Coal Rigging Contracting Corporation, and Cambron Electrical Company, may be considered for purposes of these
proceedings, during the periods involved, as independent contractors. As
such independent contractors they were engaged in clearly-defined areas of
mine construction work prior to and in preparation·for respondent's putting
its Pleasant Hill Surface Mine into actual production of coal. Each of said
independent contractors was engaged in a major work and exercised a continuous presence at the mine during the periods designated.
It is clear that while the absence of any negligence on the part of an
operator does not absolve him from liability for a civil penalty, that fact
may however be weighed in mitigation in determining the amount of any civil
penalty assessed for the violation, Webster County Coal Corporation, 7 IBMA
264 (1977), and the cases cited therein. It follows therefore, that if the
record establishes that a mine owner is not negligent for violations attributed to an independent contractor who has exclusive control and supervision
over the work site, and no employees of the mine owner are exposed to any
hazard caused by those violations, the mine owner should not be penalized
for such negligence. One of the statutory criteria which must be considered
under section llO(i) of the Act in the assessment of civil penalties for
violations which have been establish.ed is the negligence of the operator.
Accordingly, while I have found the respondent liable for the citations which
were issued, and while respondent is liable for any civil penalty assessments
resulting from those citations, I conclude that since the facts presented in
these proceedings establish that any negligence which occurred as a result
of the conditions or practices cited as violations resulted from a lack of
reasonable care on the part of the identified contractors and subcontractors
cited, the respondent should not bear the burden of any increased assessments
based on that negligence. In addition, since the parties stipulated that the
contractors were not the agents of the respondent, I further conclude that
any theory of vicarious liability may not serve as a basis for increasing
any assessments levied against the respondent.
History of Prior Violations
During the Evansville hearing, MSHA's counsel characterized the Pleasant
Hill Mine site ·as a "construction site", that it is a new mine, and that
these proceedings in fact constitute the first time that any violations have
occurred at that mining operation (Tr. 22). Counsel also indicated that in
view of these circumstances no assessment points for prior history were
levied against the respondent by MSHA's Assessment Office in its initial

331

evaluation of the citations, and the Assessment Office
limited its consideration of prior history to that mine (Tr. 23). Although counsel indicated
that the respondent has two other surface mines in operation within the
Western Kentucky area which have generated what he characterized as a
"significant number of violations," he also qualified this statement by indicating that the number is "not large" and that in each instance the violations involved only ordinary negligence (Tr. 24-25). MSHA has submitted no
additional information concerning the overall prior history of the respondent separate and apart from the information relating to its Pleasant Hills
mining operation. I accept counsel's assertion that it is not large, and
based on the stipulated facts here presented I conclude and find that for
purposes of these proceedings, respondent has no prior history of violations.
Respondent's suggestions that the violations in these proceedings should
not be charged against its record and should not become a part of its citation record for purposes of future proceedings is rejected. In effect,
respondent is seeking a declaratory judgment from me that in any future proceedings, another Commission judge may not consider the instant violations
as part of its track record. I find no authority for such a decision by me
and it seems clear that prior violations which have been paid, compromised,
settled, or finally ordered paid, and even those paid under protest, may be
considered as part of a mine operator's prior history, Church of Latter Day
Saints, 2 IBMA 285 (1973); Peggs Run Coal Company, 5 IBMA 144 (1975).
Further, it is clear that the identified contractors are not respondents in
these cases, and the fact that they are willing to include-t°he violations as
part of their history is immaterial. Of course, I see nothing to preclude
the respondent from arguing in any future proceedings that the judge may
consider and weigh the effect of those violations on any civil penalty
amounts fixed against a mine owner.
Penalty Assessments
It is clear that in litigated civil penalty proceedings, the determination of appropriate civil penalty assessments for proven violations is made
on a de novo basis by the presiding judge and he is not bound by any assessment ;IBthod of computation utilized by MSHA's Assessment Office, Boggs
Construction Company, 6 IBMA 145 (1976); Associated Drilling Company, 6 IBMA
217 (1976); Gay Coal Company, 7 IBMA 245 (1977); MSHA v. Consolidated Coal
Company, VINC 77-132-P, IBMA 78-3, decided by the Commission on January 22,
1980.
In the instant proceedings, the initial civil penalty assessments which
appear as part of the petitioner's initial pleadings and civil penalty
proposals in the form of "assessment worksheets" as exhibits to the proposals, reflect proposed penalty amounts derived from either the application
of "points" assessed for each of the statutory criteria set out in section
llO(i) of the Act, or from a "special assessment" made pursuant to Part 100,
Title 30, Code of Federal Regulations. The record reflects that no penalty
assessment points were attributable to the respondent's prior history of violations and MSHA has admitted that this is the case. Howev~r, with regard

332

to the question of negligence, a review of the proposed penalty assessments
made by MSHA reflects that negligence "points" were assessed against the
respondent for some but not all of the citations in question and this fact
obviously resulted in an increase in the proposed penalty amounts. Since I
have concluded that the respondent was not negligent for any of the citations, the question presented is whether I may consider this as mitigating
a decrease in the proposed amounts where MSHA considered the factor of
negligence in determining the proposed penalties.
The parties have stipulated that any civil penalties approximating those
proposed in these proceedings will not adversely affect its ability to remain
in business, that the proposed penalties are appropriate to the size of
respondent's business, and that the proposed assessments are fair and reasonable amounts under the circumstances known to have existed at the time the
citations were issued. MSHA has recommended no penalties as part of its~
posthearing arguments or stipulations, and apparently rests on the initial
evaluations made by its Assessment Office, and respondent makes no further
arguments that it is in entitled to any penalty reductions for lack of negligence on its part. However, I believe that section llO(i) mandates consideration of the element of negligence on a case-by-case basis, and if the
record supports a reduction in penalties, basic fairness dictates that
respondent is entitled to it even though he has not specifically pleaded for
a reduction. Further, as I view the stipulations with respect to the reasonableness of the proposed assessments, they were obviously made on the basis
of negligence attributable to the respondent and as such, I conclude that I
am not bound by them, particularly in light of my finding that the absence
of any negligence attributable to the respondent may be considered in mitigation of the penalties which I may assess. Accordingly, as to each citation
where no negligence points were assessed against the respondent, except for
those "specially assessed", I find them to be r-easonable and I adopt them
as the penalties assessed by me in these proceedings. With regard to those
citations which took into account any negligence by the respondent, including
those "specially assessed", I find that reductions are warranted and they
are reflected in the assessments levied me in these proceedings. I might
add that had the named contractors been before me as parties, absent any
mitigating circumstances, or the presence of any aggravating factor-s, the
initial proposed assessments may or may not have been disturbed.
On the basis of the foregoing findings and conclusions made in these
proceedings, civil penalties are assessed in each of these dockets as
follows:
Docket No. KENT 79-180
Citation No.

Date

0795019
0795020
0795229

4/16/79
4/16/79
4/16/79

30 CFR Section
77.1605(b)
77.205(b)
77 .402

333

Assessment
$50
45
45

Docket No. KENT 79-367
Citation No.

Date

30 CFR Section

0797717
0797718

8/1/79
8/ 1/79

77. 204
77.205(b)

Assessment
$80
50

Docket No. KENT 79-74
Citation No.

Date

400843

12/ 21/78

30 CFR Section
77 .404

Assessment
$175

Docket No. KENT 79-269
Citation No.

Date

0794248
0794249

4/11/79
4/11/79

30 CFR Section
77 .404( a)
77.404(a)

Assessment
$205
200

Docket No. KENT 79-129-P
Citation No.

Date

399333
399334

9/21/78
9/21/78

30 CFR Section
77.400(a)
77 .404( a)

Assessment
$1,500
350

Docket No. KENT 79-307-P
Citation No.

Date

399328

9/19/78

30 CFR Section
77.1710(i)

Assessment
$20

Docket No. BARB 79-285-P
Citation No.

Date

30 CFR Section

Assessment

399321
399322
399323
399324
399325
399326
399329
399330
399335

9/18/78
9/18/78
9/18/78
9/18/78
9/18/78
9/18/78
9/18/78
9/18/78
9/26/78

77.15605(a)
77.208(d)
77 .1109(a)
77.1710(e)
77 .410
77 .402
77.1109(c)(l)
77 .1102
77.1713(a)

$25
44
25
30
60
25
50
44
25

334

~Docket

No. KENT 79-99

Citation No.

Date

399327
399332
400844

9/ 18/78
9/21/78
12/21/78

30 CFR Section
71.400
77. 701
77.701

Assessment
$15
35
45

Docket No. KENT 79-229
Citation No.

Date

794253
794254

5/ 15/79
5/ 15/79

30 CFR Section
77 .1102

77 .1109(e) (1)

Assessment
$45
30

ORDER
The respondent IS ORDERED to pay the penalties assessed in these proceedings in the amounts shown above, totaling $3,218 within thirty (30) days
of the date of these decisions.

./~:_i-F
:.~. "{ - . i:·::. ·._--/-:·-::.
George A. Koutras
~
c

--

Administrative Law Judge
Distribution:
Marvin Tincher, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
George M. Paulson, Jr., Esq., The Gulf Companies, Law Department,
1720 South Bellaire St., Denver, CO 80222 (Certified Mail)
Harold A. Hintze, Esq., 2000 Beneficial Life Tower, 36 South State St.,
Salt Lake City, UT 84111 (Certified Mail)
Standard Distribution

335

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520'3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

8 1980

FEB

Civil Penalty Proceedings

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

Docket No. DENV 79-461-P
A/O No. 48-01096-03003

v.
Docket No. DENV 79-460-P
A/O No. 48-01096-03002

KERR-MCGEE COAL CORP.,
Respondent

Docket No. DENV 79-462-P
A/O No. 48-01096-03004
East Gillette No. 16 Surface Mine
DECISION
These cases concern four citations and one order issued to
Respondent for safety violations committed by independent construction
contractors operating at Respondent's "East Gillette No. 16 Surface Mine."
Having stipulated that the facts contained in the citations are
true, and that the proposed penalties are reasonable, both parties
submit that the only issue remaining is whether Respondent was the
proper party to be cited.
After MSHA v. Monterey Coal Co., 1 FMSHRC 1781 (November 1979), it
is clear that Respondent was properly cited. The Commission based its
decision in that case on MSHA v. Old Ben Coal Co., 1 FMSHRC 1480
(October 1979), wherein it held that until final rules were promulgated,
the practice of citing owner-operators for independent contractor
violations would be upheld for reasons of consistent enforcement.
Based upon the foregoing and the parties' stipulation, I find
Respondent was properly cited for the violations contained herein.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within 30 days,
a civil penalty in a total amount of $796.

~CJh~%

Charles C. Moore, Jr.
Administrative Law Judge

336

2
Distribution:
Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 (Certified
Mail)
Carolyn G. Hill, Esq., Kerr-McGee Center, P.O. Box 25861, Oklahoma City,
OK 73125 (Certified Mail)

337

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

FEB

8 1980
Civil Penalty Proceedings

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

Docket No. SE 79-2-M
A/O No. 54-00036-05003

Petitioner

v.
Docket No., SE 79-53-M
A/O No. 54-00036-05006

DAVID CABRERA, INC.,
Respondent

Cantera Dorado
DECISION
ORDER TO PAY
Appearances:

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of
Labor, Santurce, Puerto Rico, for Petitioner;
Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce,
Puerto Rico, for Respondent, David Cabrera, Inc.

Before:

Judge Merlin

The above-captioned cases are petitions for the assessment of civil
penalties filed by the Mine Safety and Health Administration against
David Cabrera, Inc. A hearing was held on January 8, 1980.
At the hearing, the parties agreed to the following stipulations
(Tr. 3-5):
1.

The legal n&~e of the respondent is David Cabrera,

Inc.
2. The ident~fication of the mine where the inspection
was conducted is Cantera Dorado.
3.

The location of said mine is Dorado, Puerto Rico.

4.

David Cabrera, Inc., is the operator of said mine.

5. During the period from June 29, 1978, to January 8,
1979, a duly authorized representative of the Federal Mine
Safety and Health Administration, namely Pedro Sarkis, conducted inspections at respondent's aforesaid Cantera Dorado
Nine under the Federal Mine Safety and Health Act of 1977,
hereinafter referred to as the Act.

338

6. As a _result of an inspection conducted on January 5,
1979, Citation Number 94112 was issued to respondent for
failure to comply with an order of withdrawal previously
issued to respondent on September 26, 1978, in relation to
its bulldozer Komatzu D-155.
7. The parties stipulate that all orders, citations,
extensions and notifications attached to the ·Solicitor's
petition in the Commission's files are true and accurate
with respect to the facts set forth therein.
8. Respondent employs approximately 27 employees at
Cantera Dorado.
9. Re.spondent employs 10 employees during one shift
daily, six days per week, 52 weeks per year.
10. Each of the employees of respondent works
approximately 44 hours per week.
11. The parties stipulate that respondent has a small
history of previous violations.
12. The annual manhours worked at respondent's. Cantera
Dorado Mine in 1978 and 1979 were approximately 52,000 manhours respectively.
13. Respondent was the owner and had control of
bulldozer Komatzu D-155 and Caterpillar D-8.
14. The payment of the penalty as assessed will not
affect respondent's ability to continue in business.
15. The parties stipulate that citation numbers 93314,
93315, and 94112 correctly cited violations of the Act.
16. The parties stipulate that MSHA Exhibit 1 is true
and accurate respecting the facts stated therein.
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-29). At the conclusion of the
taking of evidence, the parties waived the filing of written briefs, proposed
findings of fact, and conclusions of law. Instead, they agreed to make oral
argument and have a decision rendered from the bench (Tr. 29-30). A decision
was rendered setting forth findings, conclusions, and determinations with
respect to the alleged violations (Tr. 32-37).
Bench Decision
The bench decision (which was simultaneously translated in Spanish for
the benefit of respondent) is as follows:

339

These two consolidated cases involve noise violations on
two bulldozers for which two citations were issued.
The operator has admitted the violations. The parties
also have agreed that the facts as set forth in the inspector's citations, extensions and orders, all of which have
been admitted into the record or are attached to the pleadings, are true and accurate with respect to the facts set
forth therein. Both citations were originally issued on
June 29th, 1978. Numerous extensions were given simultaneously on both bulldozers with respect to both citations
until September 6, 1978.
Thereafter, citation 93315 on the D-8 bulldozer was
eventually abated on October 10, 1978, within the time
allowed. The Solicitor has recommended a penalty of $40,
the originally assessed amount for this violation. I
conclude this is a reasonable penalty for this violation.
Accordingl¥, a penalty of $40 is assessed for this citation.
The story with respect to citation number 93314 issued
with respect to the 155 bulldozer is unfortunately much
different. The record reflects that on September 6, 1978,
the inspector gave an extension until September 11, 1978.
·The inspector also testified that on September 12 and
September 20 he spoke with the operator's brother who is the
plant manager and with the operator's son who is the plant
supervisor, and that although the materials for abatement
were present, the operator did not abate the violation. The
inspector issued a withdrawal order on September 26, 1978.
The Solicitor recommends a penalty of $370, the
originally assessed amount for this citation for which a
withdrawal order was issued. Under the circumstances,
including repeated advice from the inspector to the operator,
despite which there was a failure to abate, I cannot agree
with operator's counsel that this amount is excessive. On
the contrary, I conclude this amount to be reasonable on
the facts presented.
If the operator cannot abate the citation within the
time allowed, particularly where many extensions have been
given and substantial time has elapsed, then the operator
has a responsibility to inform the inspector why abatement
has not been accomplished and, moreover, to justify to the
inspector why a further extension should be given. It is not
the inspector's function to chase after the operator.
This, however, is not the end of the matter. These
consolidated cases also contain a petition for the assessment

340

of a civil penalty based upon Citation 94112, dated
January 5, 1979, issued for failure to comply with the withdrawal order on the 155 bulldozer. It appears from the
inspector's testimony and from MSHA Exhibit No. 1 that
another citation not at issue in these proceedings was
issued on November 28, 1978, also for failure to comply with
the subject withdrawal order. Apparently, after the withdrawal order was issued, the operator continued to use the
machine in defiance of the withdrawal order. However, the
inspector also testified that after the November 28 citation
was issued, the operator did some work on November 29 and
November 30 with respect to abating the noise violation but
that this abatement had not been completed.
The operator must understand that it cannot ignore withdrawal orders issued by inspectors of the Mine Safety and
Health Administration, especially where, as here, the inspector's uncontradicted testimony demonstrates he told the operator what the effect of the withdrawal order was, i.e., that
the equipment in question must not be used until the-withdrawal order is terminated by an inspector no matter what
work has been done on the equipment for abatement. If the
operator believes the inspector is wrong, he can go to the
inspector's superiors or he can request and obtain a hearing
before a Judge within four days or even less if the parties
agree. The operator has avenues of relief against erroneous
actions by inspectors. What the operator does not have is
the right to disregard these orders as if they did not exist.
If an inspector removes a piece of equipment from service,
then it cannot be used until the operator obtains the proper
permission to do so.
The operator must understand that by acting as it has
done in this case, it is subjecting itself to very severe
penalties indeed. Section llO(b) of the law provides that an
operator who fails to correct a violation within the period
permitted may be assessed a penalty of up to $1,000 for each
day during which the violation continues. In addition,
Section llO(d) provides that any operator who willfully violates the law shall, upon conviction, be punished by a fine
of not more than $25,000 or by imprisonment for not more than
one year or by both.
After listening to the testimony and conferring with
the Solicitor and counsel for the operator, I have reached
the conclusion that the operator's unfamiliarity with the Act
played a part in its misconduct in this case. Upon questioning from the bench, the inspector's testimony indicated that
the circumstances occurred during early inspections of this
facility under the Act.

341

I also bear in mind the operator's small size and small
prior history. However, the operator's actions cannot be
excused and an appropriate civil penalty must be assessed.
What the operator must realize is that recurre.nce of such
conduct in the future will result in much harsher and severer
punishment.
After much deliberation, I determine that $1,800 is an
appropriate civil penalty for this violation. Accordingly,
penalties of $40, $370 and $1,800 are assessed in this case.
ORDER
The foregoing bench decision is hereby, AFFIRMED.
The operator is ORDERED to pay $750 within 30 days from the date of this
decision; $750 within 60 days from the date of this decision; and $710 within
90 days from the date of this decision.

~~~~

Assistant Chief Administrative Law Judge

Distribution:
Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor,
P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail)
Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce,
P.R. 00949 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

342

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

FEB

8 1980
Civil Penalty Proceedings

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

Docket No. SE 79-2-M
A/O No. 54-00036-05003

Petitioner

v.
Docket No. SE 79-53-M
A/O No. 54-00036-05006

DAVID CABRERA, INC.,
Respondent

Cantera Dorado
DECISION
ORDER TO PAY
Appearances:

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of
Labor, Santurce, Puerto Rico, for Petitioner;
Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce,
Puerto Rico, for Respondent, David Cabrera, Inc.

Before:

Judge Merlin

The above-captioned cases are petitions for the assessment of civil
penalties filed by the Mine Safety and Health Administration against
David Cabrera, Inc. A hearing was held on January 8, 1980.
At the hearing, the parties agreed to the following stipulations
(Tr. 3-5):
1.

The legal name of the respondent is David Cabrera,

Inc.
2. The iden~ification of the mine where the inspection
was conducted is Cantera Dorado.
3.

The location of said mine is Dorado, Puerto Rico.

4.

David Cabrera, Inc., is the operator of said mine.

5. During the period from June 29, 1978, to January 8,
1979, a duly authorized representative of the Federal Mine
Safety and Health Administration, namely Pedro Sarkis, conducted inspections at respondent's aforesaid Cantera Dorado
Mine under the Federal Mine Safety and Health Act of 1977,
hereinafter referred to as the Act.

343

6. As a result of an inspection conducted on January 5,
1979, Citation Number 94112 was issued to respondent for
failure to comply with an order of withdrawal previously
issued to respondent on September 26, 1978, in relation to
its bulldozer Komatzu D-155.
7. The parties stipulate that all orders, citations,
extensions and notifications attached to the Solicitor's
petition in the Commission's files are true and accurate
with respect to the facts set forth therein.
8. Respondent employs approximately 27 employees at
Cantera Dorado.
9. Respondent employs 10 employees during one shift
daily, six days per week, 52 weeks per year.
10. Each of the employees of respondent works
approximately 44 hours per week.
11. The parties stipulate that respondent has a small
history of previous violations.
12. The annual manhours worked at respondent's Cantera
Dorado Mine in 1978 and 1979 were approximately 52,000 manhours respectively.
13. Respondent was the owner and had control of
bulldozer Komatzu D-155 and Caterpillar D-8.
14. The payment of the penalty as assessed will not
affect respondent's ability to continue in business.
15. The parties stipulate that citation numbers 93314,
93315, and 94112 correctly cited violations of the Act.
16. The parties stipulate that MSHA Exhibit 1 is true
and accurate respecting the facts stated therein.
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-29). At the conclusion of the
taking of evidence, the parties waived the filing of written briefs, proposed
findings of fact, and conclusions of law. Instead, they agreed to make oral
argument and have a decision rendered from the bench (Tr. 29-30). A decision
was rendered setting forth findings, conclusions, and determinations with
respect to the alleged violations (Tr. 32-37).
Bench Decision
1he bench decision (which was simultaneously translated in Spanish for
the benefit of respondent) is as follows:

344

These two consolidated cases involve noise violations on
two bulldozers for which two citations were issued.
The operator has admitted the violations. The parties
also have agreed that the facts as set forth in the inspector's citations, extensions and orders, all of which have
been admitted into the record or are attached to the pleadings, are true and accurate with respect to the facts set
forth therein. Both citations were originally issued on
June 29th, 1978. Numerous extensions were given simultaneously on both bulldozers with respect to both citations
until September 6, 1978.
Thereafter, citation 93315 on the D-8 bulldozer was
eventually abated on October 10, 1978, within the time
allowed. The Solicitor has recommended a penalty of $40,
the originally assessed amount for this violation. I
conclude this is a reasonable penalty for this violation.
Accordingly, a penalty of $40 is assessed for this citation.
The story with respect to citation number 93314 issued
with respect to the 155 bulldozer is unfortunately much
different. The record reflects that on September 6, 1978,
the inspector gave an extension until September 11, 1978.
The inspector also testified that on September 12 and
September 20 he spoke with the operator's brother who is the
plant manager and with the operator's son who is the plant
supervisor, and that although the materials for abatement
were present, the operator did not abate the violation. The
inspector issued a withdrawal order on September 26, 1978.
The Solicitor recommends a penalty of $370, the
originally assessed amount for this citation for which a
withdrawal order was issued. Under the circumstances,
including repeated advice from the inspector to the operator,
despite which there was a failure to abate, I cannot agree
with operator's counsel that this amount is excessive. On
the contrary, I conclude this amount to be reasonable on
the facts presented.
If the operator cannot abate the citation within the
time allowed, particularly where many extensions have been
given and substantial time has elapsed, then the operator
has a responsibility to inform the inspector why abatement
has not been accomplished and, moreover, to justify to the
inspector why a further extension should be given. It is not
the inspector's function to chase after the operator.
This, however, is not the end of the matter. These
consolidated cases also contain a petition for the assessment

345

of a civil penalty based upon Citation 94112, dated
January 5, 1979, issued for failure to comply with the withdrawal order on the 155 bulldozer. It appears from the
inspector's testimony and from MSHA Exhibit No. 1 that
another citation not at issue in these proceedings was
issued on November 28, 1978, also for failure to comply with
the subject withdrawal order. Apparently, after the withdrawal order was issued, the operator continued to use the
machine in defiance of the withdrawal order. However, the
inspector also testified that after the November 28 citation
was issued, the operator did some work on November 29 and
November 30 with respect to abating the noise violation but
that this abatement had not been completed.
The operator must understand that it cannot ignore withdrawal orders issued by inspectors of the Mine Safety and
Health Administration, especially where, as here, the inspector's uncontradicted testimony demonstrates he told the operator what the effect of the withdrawal order was, i.e., that
the equipment in question must not be used until the-withdrawal order is terminated by an inspector no matter what
work has been done on the equipment for-abatement. If the
operator believes the inspector is wrong, he can go to the
inspector's superiors or he can request and obtain a hearing
before a Judge within four days or even less if the parties
agree. The operator has avenues of relief against erroneous
actions by inspectors. What the operator does not have is
the right to disregard these orders as if they did not exist.
If an inspector removes a piece of equipment from service,
then it cannot be used until the operator obtains the proper
permission to do so.
The operator must understand that by acting as it has
done in this case, it is subjecting itself to very severe
penalties indeed. Section llO(b) of the law provides that an
operator who fails to correct ~ violation within the period
permitted may be assessed a penalty of up to $1,000 for each
day during which the violation continues. In addition,
Section llO(d) provides that any operator who willfully violates the law shall, upon conviction, be punished by a fine
of not more than $25,000 or by imprisonment for not more than
one year or by both.
After listening to the testimony and conferring with
the Solicitor and counsel for the operator, I have reached
the conclusion that the operator's unfamiliarity with the Act
played a part in its misconduct in this case. Upon questioning from the bench, the inspector's testimony indicated that
the circumstances occurred during early inspections of this
facility under the Act.

346

I also bear in mind the operator's small size and small
prior history. However, t.he operator's actions cannot be
excused and ~n appropriate civil penalty must be assessed.
What the operator must realize is that recurrence of such
conduct in the future will result in much harsher and severer
punishment.
After much deliberation, I determine that $1,800 is an
appropriate civil penalty for this violation. Accordingly,
penalties of $40, $370 and $1,800 are assessed in this case.
ORDER
The foregoing bench decision is hereby, AFFIRMED.
The operator is ORDERED to pay $750 within 30 days from the date of this
decision; $.750 within 60 days from the date of this decision; and $710 within
90 days from the date of this decision.

~~~~

Assistant Chief Administrative Law Judge

Distribution:
Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor,
P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail)
Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce,
P.R. 00949 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

347

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

FEB

8 1900
Civil Penalty Proceeding

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

Docket No. SE 79-3-M
A/0 No. 54-00036-05004

Petitioner

v.
··

Cantera Dorado

DAVID CABRERA, INC.,
Respondent
DECISION
ORDER TO PAY
Appearances:

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department
of Labor, Santurce, Puerto Rico, for Petitioner;
Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce,
Puerto Rico, for Respondent, David Cabrera, Inc.

Before:

Judge Merlin

The above-captioned proceeding is a petition for the assessment of
civil penalties for 19 alleged violations of the Act.
At the hearing on January 8, 1980, the Solicitor advised that the
parties now recommended settlement of the violations in this docket number.
The Solicitor explained each of the settlements in detail and stated that
the gravity factor had been overassessed. Further, the operator has virtually no history of prior violations under the Act, and the Act itself is
relatively new as regards this operator. The recommended settlements total
$1,504, which is a substantial amount for this operator who is not large in
size. 1/ In view of the circumstances which are fully set forth in the
administrative transcript of the hearing, the recommended settlements are
approved. It is however, a matter of concern when at the hearing the Solicitor expresses evaluations so different from that of the Assessment Office.
1/ The Solicitor incorrectly stated the total amount to be $1,554.
correct amount is $1,504.

348

The

ORDER
The operator is ORDERED to pay $1,504 in six equal payments, the first
payment to be made within 30 days from the date of this decision, with subsequent payments every 30 days thereafter.

~~~

Paul Merlin
Assistant Chief Administrative Law Judge

Distribution:
Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor,
P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail)
Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce,
P.R. 00949 (Certified Mail)
Administrator, Metal and Non-metal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

349

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

(703) 756-6210/11/12

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

8 1900.
Civil Penalty Proceeding
Docket No. VINC 79-227-P
A.O. No. 33-02308-03021F

v.

Raccoon No. 3 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION AND ORDER
Appearances:

Linda Leasure, Esq., U.S. Department of Labor,
Office of the Solicitor, Cleveland, Ohio, for
Petitioner;
David Cohen,· Esq., Lancaster, Ohio, for
Respondent.

Before:

Judge Kennedy

The captioned penalty proceeding came on for an evidentiary
hearing in Columbus, Ohio on November 1 and 2, 1979.

The

Secretary charged that as the result of two separate occurrences
on May 5, 1978, the operator violated section 302(a) of
the Act, 30 CFR 75.200.

The first charge was that as a result

of an investigation of a fatal roof fall accident that occurred
on May 5, 1978, it was determined that the victim and another
miner had travelled inby permanent roof support for the purpose
of removing temporary supports in violation of the prohibition
against miners travelling under unsupported roof.

350

The second

charge was that the investigation revealed that at the time
of the accident the victim and another miner were removing
temporary supports under unsupported roof by hand instead
of by some remote means and without installing other temporary
support in violation of Safety Precaution No. 3 of the approved
roof control plan.
At the hearing, counsel for the operator conceded the
two miners in question "were engaged in the practices that
were stated in the citations" (Tr. Vol. I, 16) but now claims
there was only one violation.

The statute, however, clearly

provides that.each occurrence of a violation constitutes a
separate offense and there is no dispute about that the fact
that two miners participated in the conduct charged and that
the conduct of each was in violation of the standard.

The

operator is fortunate that the Secretary did not charge, as
he might have, that each of the miners violated the standard
twice for a total of four violations.
The operator's theory of two for the price of one is,
therefore, rejected.
At the conclusion of the hearing, and in accordance with
the pretrial order, the parties presented oral argument in
support of their proposed findings and conclusions and the
presiding judge made a tentative decision on the record.
At the request of the operator, the effective date of the
bench decision was stayed pending receipt of the transcript

351

and the parties proposed findings, conclusions, and supporting
briefs.
After a careful consideration of the parties' written
submissions, I find my bench decision, as supplemented below,
should be adopted and confirmed as my final decision in this
matter.

My decision, therefore, is as follows:
After observing the demeanor of the witnesses

and based on a preponderance of the reliable, probative
and substantial evidence, I find:
1.

The two violations charged did, in fact,
occur.

2.

Because these violations were the proximate
cause of the death of a miner they were
extremely serious.

3.

The violations were the result of a disregard
for compliance with safe mining practices by
Socco's top management, its Section Foreman,
Lonnie Darst, the miner-victim, James Six,
and the miner-survivor, John Endicott.

4.

Mr. Six's knowing disregard of the prohibition
against working under unsupported roof and the
safety precautions of the approved roof control
plan was an act of gross negligence.

5.

The violations were also the result of a
reckless disregard for compliance with safe
mining practices by the miner-survivor, John
Endicott. Mr. Endicott knowingly disregarded
the same prohibitions of the mandatory safety
standard and the safety precautions of the
approved roof control plan as did Mr. Six.

6.

The acts of the miners Six and Endicott were
foreseeable and preventable by the Section
Foreman Lonnie Darst and top management. As
several witnesses testified it was not unusual
for miners in the Raccoon #3 Mine to work under
unsupported roof (Tr. Vol. I 94, 108, 110, 131,
136, 159-160; Vol. 2 144; GX-9). Mr. Darst
and top management knew or should have known
this.

352

7.

More specifically, Lonnie Darst knew or should
have known that Mr. Six could not knock the
six jacks in the 15 entry with the loader
without damaging the jacks seriously.

8.

Lonnie Darst did not tell James Six how to
knock and remove the six jacks without damaging
them.

9.

Lonnie Darst did not tell James Six how to load
the coal in the 15 entry without removing the
jacks.

10.

James Six and John Endicott knew they were
expected to knock and remove the jacks without
damaging them.

11.

It never occurred to Six and Endicott to knock
out the jacks with the loader because this
would have damaged the jacks and seriously
impeded production.

12.

It is not reasonable to believe that Lonnie
Darst would have directed Six to employ a
means of removing the jacks that would render
them inoperable.

13.

Lonnie Darst and top management condoned the
violations committed by Six and Endicott
because they did only what was expected of them.

14.

Lonnie Darst's actions as well as those of
Six and Endicott are, therefore, imputable to
Sacco.

15.

Lonnie Darst was negligent in his supervision
of the 15 entry of the 001 Section on May 5, 1978.

16.

Sacco's management is vicariously responsible
for the negligence of its agents and employees
and independently responsible for its failure
to design, implement and enforce a mine safety
program that ensures compliance with the Mine
Safety Laws at all times--not just some times-by its section foremen and miners.

353

17.

The operator's claim that the section
foreman, Lonnie Darst and top management
were not involved in the violations committed
is without merit. The record shows the section
foreman's failure to supervise and monitor
the remote recovery of the temporary supports
was in violation of the safety precautions
set forth in 30 CFR 75.200-14. These precautions
were issued in implementation of the underlying
interim mandatory standard pursuant to the
Secretary's authority under section 30l(d)
of the Act to "prescribe" the manner in which
roof support recovery is to be accomplished
under roof control plans adopted and approved
under section 302(a), 30 CFR 75.200 of the
Mine Safety Law. Inasmuch as this criteria
"prescribes" the manner in which an operator
is to "carry out on a continuing basis" his
program of roof control as mandated by section
302(a), 30 CFR 75.200, it is an enforceable
part of the underlying interim.mandatory safety
standard. Zeigler Coal Co. v. Kleppe, 536
F.2d 398, 405 and n. 32 (D.C. Cir. 1976); United
States v. Finley Coal Co., 493 F.2d 285, 290
(6th Cir. 1974), aff~g. 345 F.Supp. 62, 67
(E.D. Ky. 1972). Un er decisions of the Board
of Mine Operations Appeals, it is well settled
that once an operator adopts and the Secretary
approves a roof control plan the operator is
"obliged to carry out" the plan in accordance
with the cirteria set forth in 30 CFR 75.200-7
through 75.200-14. Affinity Mining Company,
6 IBMA 100, 109 (1976); Bishop Coal Company,
5 IBMA 231, 241-244 (1975) (75.200-1 through
75-200-14 "fill in some of the interstices"
of the operator's obligation to "adequately"
support or otherwise control the roof or ribs).

18.

30 CFR 75.200-14 prescribes a detailed method
for roof support recovery. Mr. Darst's conduct
and instructions violated this criteria in six
particulars all of which are imputable to top
management. Furthermore, top management is
independently responsible for its own negligent
failure to supervise properly Mr. Darst's
performance of his duties and responsibilities.

354

19.

Mr. Darst's six violations of 75.200-14 were
as follows:
(a)

75.200-14(a) provides that "Recovery should
be done only under the direct supervision
of a mine foreman, assistant mine foreman,
or section foreman." It is undisputed
that at the time of the fatal roo~ fall
the section foreman, Lonnie Darst, was
not supervising the recovery operation but
was in the No. 13 crosscut assisting
another miner in hanging power cable
(Tr. Vol. II, 101, 107, 156).

(b)

75.200-14(c) required that "The person
supervising recovery should make a careful
examination and evaluation of the roof, and
designate each support to be recovered."
Mr. Darst admitted that he failed to
designate the jacks to be recovered
(Tr. Vol. II, 108-109).
In addition, the
record shows that neither Mr. Darst nor
the miners involved made any effort to
sound or otherwise evaluate the condition
of a badly fractured roof that, in the
area where the fatality occurred, was
unsupported for a minimum distance of
23 feet, 9 inches. The record further
shows that despite the requirement for
preshift and on-shift reports of hazardous
conditions the operator tolerated the
existence of this massive unsupported roof
area for approximately 17 hours.
This
constituted a reckless disregard for
management's obligation to exercise a
high degree of care for the safety of the
miners. Legislative History of the
Federal Coal Mine Health and Safety Act
of 1969, U.S. Senate, Committee on Labor
and Public Welfare, 94th Cong., 1st Sess.,
(August 1975), at 1515.

(c)

75.200-14(d)(l) directs that "Supports should
not be recovered . . . Where roof
fractures are present or there are other
indications of the roof being structurally
weak." The record shows the operator had
encountered extremely bad roof conditions
while driving the 15 entry. The roof leaked

355

substantial quantities of water which
indicated the overlying strata had lost
its cohesive qualities and that the
overburden was fractured.
During the
period it was unsupported, the roof had
sagged and cracked.
(Tr. Vol. I, 71,
74, 87-88, 93, 96, 108, 173, 193;
Vol. II, 107, 159). Mr. Darst was fully
aware of the condition of the roof
in the number 15 entry. This knowledge
is imputable to top management.
In
addition, top management knew or should
have known of the hazardous roof condition
in the 15 entry at the time it made its
determination to recover coal from the
area.
Its determination to do so in the
face of this criterion constituted a
conscious and deliberate indifference to
the safety of its employees.
(d)

75.200-14(e) requires that "Two rows of
temporary supports on not more than 4 foot
centers, lengthwise and crosswise, should
be set across the place, beginning not
more than 4 feet inby the support being
recovered.
In addition, at least one
temporary support should be provided as
close as practicable to the support being
recovered." It is undisputed that the
only temporary supports in the No. 15
entry were those taken down by the miners
Six and Endicott.
(OX-8, Tr. Vol. I,
91, 120-121). The record shows Mr. Darst's
instruction for tripping the jacks with
the loader dir~ctly contravened this
criterion, the approved roof control plan,
and the requirement that the operator control
the roof adequately to protect Mr. Six
from a roof fall during removal of the
temporary supports.
Section 302(a) of
the Act, 30 CFR 75.200. Mr. Darst's
instruction which was tantamount to a
directive to violate the safety precautions
set forth in the law was negligence per se
and clearly imputable to top management ~
which was responsible for ensuring that Mr.
Darst performed his duties in accordance with
the law.

356

(e)

75.200-14(f) provides that "Temporary
supports used should not be recovered
unless recovery is done remotely
from under roof where the permanent supports
have not been disturbed and two rows of
temporary support, set across the place
on 4 foot centers, are maintained at
all times between the workmen and the
unsupported area." Mr. Darst's instructions
to knock the jacks out with the loader
compelled action by Mr. Six that directly
contravened this safety precaution as it
was impossible to trip the jacks if
two rows of temporary supports had been
installed as required.
Inspector Petit
testified that to comply with this
safety precaution and still recover the
jacks it would be necessary, after setting
the additional temporary support, to tie
a rope around the jacks and then pull
them out with the loader while remaining
under supported roof (Tr. Vol. II, 59,
62-63).
This, of course, would leave
two rows of temporary support that could not
be removed, nor could the coal.
It is
clear therefore that there was no way
to effect remote removal of the temporary
supports in compliance with the law
and still recover the coal. Mr. Darst
opted to flout the law and recover the coal.
In doing so he set the stage for another
roof fall fatality.
It is a fair inference
that Mr. Darst did not alone make the
decision to go for the coal at the risk
of a miner's life.
I conclude therefore
that top management of the Raccoon :f,1:3 Mine
was primarily responsible for this regrettable
case of institutional manslaughter.

(f)

75.200-14(h) requires that "Entrances to the
areas from which supports are being
recovered should be marked with danger
signs placed at conspicuous locations."
Mr. Darst admitted he did not danger off
the unsupported roof area in entry 15
(Tr. Vol. II, 107). The failure to
ensure compliance with thi.s safety precaution
was another instance of the operator's
failure to carry out its obligation to
protect its miners from travelling or

357

working under hazardous roof as required
by section .302(a), 30 CFR 75.200.
It also constituted another instance of
the operator's failure to exercise the
high degree of care imposed by the Act.
20.

Finally, I find that the operator's independent
failure to enforce sound mining practices,
as evidenced by its failure to ensure compliance
with the safety precautions applicable to the
remote removal of temporary supports by its
section foreman and the miners Six and Endicott
as well as its foreman's failure to monitor
and supervise properly the remote removal of
the temporary supports by the miners Six and
Endicott warrant the imposition of maximum
penalties for the violations charged.

I conclude therefore that for the imputed negligence of
its agents and employees as well as for its own acts of
independent and contributory negligence, Socco is fully
responsible for the violations charged.

See Valley Camp Coal Co.,

3 IBMA 463 (December 13, 1974) (section foreman's knowledge
of dangerous condition imputable to operator for purpose of
determining negligence); Pocahontas Fuel Co., 8 IBMA 136
(September 28, 1977) aff'd 590 F.2d 95 (4th Cir. 1979) (failure
of preshift examiner to detect violation imputable to operator);
Webster County Coal Co., BARB 78-185-P (June 7, 1978);
Grundy Mining Co., BARB 78-168-P (June 19, 1978),
appeal pending No. 78-3424 (6th Circuit) (foreseeable and
preventable miner's negligence imputable to operator);
Buffalo Mining Co., HOPE 78-333-P (October 30, 1979) (independent
contractor's negligence imputable to operator); Cf. U.S. v.
Illinois Central R. Co., 303 U.S. 239 (1938) (employee's

358

negligent breach of statutory duty imputable to employer);
Atlantic and Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541
(3rd Cir. 1976) (employer liable for predictable and
forseeable employee misconduct).
I further conclude that in order to deter future violations,
heighten top management's awareness of the need for meaningful
supervision and sanctions to backup the mine safety laws, and
to ensure, if possible, voluntary compliance with those laws,
the amount of the penalty warranted for each violation found
is $10,000.00.
Accordingly, it is ORDERED that Southern Ohio Coal Company
pay a penalty of $20,000.00 on or

Friday, March 21, 1980.

Distribution:
Linda Leasure, Esq., U.S. Department of Labor, Office of
the Solicitor, 881 Federal Office Bldg., 1240 E. Ninth St.,
Cleveland, OH 44199 (Certified Mail)
David Cohen, Esq., American Electric Power Service Corp.,
P.O. Box 700, Lancaster, OH 43130 (Certified Mail)

359

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Q3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

ff.B 1 1 1900
Civil Penalty Proceeding

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

Docket No. DENV 79-396-PM
A.C. No. 05-00354-05010

Petitioner

v.
Climax Mine
CLIMAX MOLYBDENUM COMPANY,
Respondent
DECISION
Appearances:

Thomas E. Korson, Esq., Assistant Solicitor, Mine Safety
and Health Administration, U.S. Department of Labor, for
Petitioner;
Richard W. Manning and Katherine Vigil, Climax Molybdenum
Company, Golden, Colorado, for Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine
Safety and Health Act of 1977. A hearing on the merits was held in Denver,
Colorado, on January 3, 1980, at which both parties were represented by
counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law proffered by counsel during
closing argument, I entered a detailed opinion on the record. 1/ It was
found that the violation charged in the withdrawal order did occur. My
oral decision containing findings, conclusions and rationale appear below
as it appears in the record aside from minor corrections in grammar and
punctuation:
This penalty proceeding arose upon the filing of a petition for assessment of civil penalty by the Department of
Labor on March 5, 1979, in which the Government seeks a penalty against the Respondent, Climax Molybdenum Company, for
causing or permitting a condition or practice described in
Citation No. 331766 which was issued by inspector James L.
Atwood on August 2, 1978, and which is more particularly
described as follows: "The ore pass in 3180-9 stopes, subdrift F-finger, was not provided with a bumper block or berm.

y

Tr. 127-139.

%0

Mobile preparation crews use this ore pass for a dumping
location."
The standard involved is that provided in 30 CFR 57.9-54
which provides as part of some 73 specific loading, hauling,
and dumping safety requirements which are applicable generally to surface and underground mines that: "Berms, bumper
blocks, safety hooks, or similar means shall be provided to
prevent overtravel and overturning at dumping locations."
At the outset, it is found, based upon stipulation provided by counsel, that this is a large mine having a payroll
of some 1,500 underground employees and a daily production
of molybdenum of 25,000 to 28,000 tons. It is also found
that Respondent had a prior history of 122 previous violations. Since I do not know during what period of time that
is involved, I make no specific finding with respect to
that element.
The parties stipulated that payment of the proposed
penalty of $106 would not affect Respondent's ability to continue in business. I so find and, in addition, find that in
view of the Respondent's size and that Respondent is itself
a division of AMAX, Inc., that it would be able to pay a
much higher penalty including the maximum penalty in this
case without affecting its ability to continue in business.
Finally, based upon the expressed stipulation of the
parties, I find that the Respondent, after being served
with the citation involved here, proceeded in good faith
to achieve rapid compliance with the safety standard cited
in the citation by providing a berm at the site allegedly
in violation.
In terms of issues, the general issues are, of course,
whether or not a violation did occur and, if so, what
degree of negligence, if such exists, and what degree of
seriousness should be attributed to the Respondent and the
condition respectively.
The primary issue in this case is a legal one which
arises out of the proper interpretation which should be
placed on the safety standard cited, 30 CFR 57.9-54.
More particularly, the question is whether the coverage
of this regulation applies when dumping is not actually
going on. The issµe of the construction to be given the
regulation comes up based upon the defenses asserted by
Respondent in this proceeding, the chief and secondary
supporting arguments of such a defense being that berms

361

are not required around finger openings except when dumping is going on and that the Respondent had a practice of
using berms when dumping actually was in progress. Respondent contends that there was no dumping in progress when
the alleged violation was observed by the inspector on
August 2, 1978, and that its employees were instructed to
use berms when carrying on dumping, and other similar contentions which relate back to the primary construction of
the regulation which it urges.
Turning now to the evidence, the inspector testified
and I find that on August 2, 1978, the opening reflected on
Exhibit R-2, which sometimes has been referred to as the
"ore pass," but generally called the "F-finger," was not
filled up; that it was irregular in shape; that it was
approximately 8 feet across (the Respondent contends the
same was approximately 7-1/2 feet across) and that it was
some 31 feet deep.
I find, based upon the inspector's testimony and that of
Respondent's witness, Dick Robush, that the depth of the
finger was approximately 23 feet, the first half of which was
straight down and the second half of which sloped off at an
angle of approximately 45 degrees. As reflected on Exhibit
R-1, the finger extended from subdrift F down to an area
sometimes referred to as the slusher drift- area.
I would footnote that I would refer to the ore pass as
the actual opening or top of the hole through which the ore
was dumped into the finger.
I find that on August 2, 1978, the ore pass and the
finger was not filled up. For all intents and purposes it
was empty. I also find that the subdrift reflected on
Exhibit R-1 and in which the ore pass was located was used
as a trailway, that the ore pass abutted on one side a
wall of the subdrift, that there was a 3/4-inch hemp rope
suspended from the sides which hung approximately 3 feet
off the ground and which had a sway in it which at the
bottom was approximately three-fourths of a foot off the
bottom. Part of the rope was out over the open hole.

At the time the inspector observed the condition there
were equipment tracks imprinted in the bottom of the material
which constituted the floor of the area, most of which followed the direction of the trailway and some of which were
in the direction of the ore pass, the closest of which were
some 3 to 4 feet away from the edge of the ore pass. I am
unable to find when these tracks were made or by which specific type of mobile equipment the tracks were left.

362

I find that there was a sign in proximity to the
allegedly violative condition which said "Danger--No Manway," and that the area in which the ore pass was located
could at times become, as the inspector described it, smoky
as a result of blasting which could take place in the mine
at distances ranging from 100 yards to 1 mile from the subject area.
In this connection, I also find that while such smoky or
dusty condition could in the abstract affect visibility to
what extend the same would be affected cannot be found on
this record and, further, that there was no such condition
on the day the alleged violation was observed.
I find that when the citation was issued at 8:50 a.m.,
the first or morning shift was in progress, that no dumping
was carried on on the morning shift, and that the last dumping which occurred into the finger in question through the
subject ore pass occurred on August 1 during the swing shift
(between 3:30 and 11:30 p.m.).
I find that the ore pass and finger in question, both
parts of the same thing, had prior to August 2, 1978, been
used as a dumping location and would have been used as a
dumping location subsequent to such date. The meaning of
this finding is that actual dumping had oc.curred at such
site and would have occurred at such site subsequent to the
issuance of the citation.
I specifically find that on August 2, 1978, there was
no berm, bumper guard, or other suitable means or materiai
present at the site in question which would have prevented
the overtravei of yehicles or overturning of vehicles-overtravel being a vehicle's going too far and going into
the opening of the ore pass.
At the time the citation was issued, the only mobile
equipment in the general area depicted on Exhibit R-2 were
two loaders, a 1-yard loader and a 5-yard loader. The
1-yard loader was some 16 feet long, 5-1/2 feet high and
4-1/2 feet wide, and the 5-yard loader being some 26 feet
long, 6 to 7 feet high, and 8-1/2 feet wide.
In this connection, I also find that, based upon the
inspector's testimony, so-called "Wagner muckers"--a
vehicle used for hauling which approximates the size of a
standard-size automobile running on four wheels and powered
by a diesel engine--constituted the majority of Respondent's
mobile equipment operating in the area. As I have noted,
the tracks found in the area cannot be attributed to any

363

specific piece of equipment including the Wagner mucker
or the loaders previously described.
There were approximately four employees working in the
general area depicted on Exhibit R-2 on August 2, 1978. It
would have been impossible for the two loaders to proceed as
depicted on Exhibit R-3 from the 400 production drift past
the subdrift 22 into 3160 crosscut, and get closer than
7 feet to the ore pass opening. On the other hand, equipment could have directly turned into subdrift 22 and have
been exposed to the hazard presented by the unfilled ore
pass opening, which was not protected by a berm, bumper
guard, or other suitable means or material to prevent overtravel or overturning.
Based upon the foregoing specific findings of fact, I
make these following ultimate findings of fact: On August 2,
1978, when the citation was issued, no dumping was being conducted at the ore pass in question; the ore pass described
in the citation was not protected in accordance with the specific requirements of° the regulation cited, 29 CFR 57 .9-54,
in that no berms, bumper blocks, safety hooks, or similar
means were provided to prevent overtravel and overturning;
the ore pass and finger shown on Exhibit R-3 was used for
dumping, even though at the specific time the inspector
observed the same, dumping was not actually in progress; the
ore pass in question constituted a very serious hazard to
employees working or traveling in proximity to it due to
its depth, its location--adjacent to a travelway, the condition of the protective rope--insofar as the same was not
fastened properly, the possibility of impaired visibility,
and all despite the precaution taken by management personnel
in putting up a sign entitled "Danger--No Manway."
Since Respondent had other signs, some of which were
more specific than the sign in question such as the ones
which said "Danger--Open Finger" and one which said
"Danger--Open Ore Pass," I find it possible that a sign
which says "Danger--No Manway" might lead an employee into
the belief that there was no danger from an open finger or
an open ore pass. That is, by having specific signs which
describe specific dangers, a (less) specific sign might be
counterproductive. However, those are in my judgment minor
considerations in comparison to the major considerations
upon which (rests) my finding that the condition was a very
serious hazard.
In this sense and in this respect, I fully credit the
testimony of the inspector that in the event of an overturn
of equipment, a fatality would probably occur. There was

364

really no challenge to this evidence with respect to seriousness. The general description of the condition itself would
lead me to find the same absent the inspector's testimony.
I turn now to the primary question which is the construction of the regulation. I first note that it's a
long-established principle of mine safety law that
ambiguous provisions of the law are to be construed liberally so as to enhance the safety aspects of the language.
I construe that to mean that if there is an ambiguity, a
regulation should be construed liberally to promote health
and safety. However, I find no ambiguity whatsoever in
this regulation.
I'm going to be very explicit in saying I find the argument of Respondent that the regulation should be limited to
only those times when dumping is going on to be wishful
thinking at best and very cynical at worst. This regulation
says that berms, bumper blocks, or similar means shall be
present at dumping locations. Is an open hole in the ground
7-1/2 feet long a "dumping location" only when dumping is
in progress when it's (been) used for dumping within some
15 to 20 hours before it's seen to present a very serious
violation? Is a piano that's not in use not a piano because
there's no musician sitting there playing it?
This site was used shortly before this violation was
discovered as a dumping place and was intended to be used
as a dumping place subsequently. The regulaton does not
say that berms, etc., shall be provided while dumping is
going on. It says it shall be used at "dumping locations."
In my judgment, if there was ever a dumping location, this
was it,· since it was one that was used very shortly before
the violation was found. It would be impossible to enforce
such a regulation absent having an inspector present at
every single such location 24 hours a day, because you
would then get down to where someone would say, "Well, it
wasn't a dumping location, we were using it for ventilation or some other purpose at the time the violation was
discovered."
This regulation is not just for the benefit of the
employees actually engaged in dumping at some particular
time. The hazard is to anybody that happens to be going
along there at any time whether dumping is going on or
not. The hazard is for a piece of equipment to overturn
or to fall into that hole whether or not it's in the
process of dumping. Are we to discriminate and limit the
protection afforded by such a regulation, the hazard

365

which it is designed to protect being so obvious, in such
a way?.
I find no ambiguity whatsoever and I am surprised at
the position that the Respondent has taken which, as it has
pointed out, has resulted in a practice wherein the berms are
taken away after the dumping is over. I find, in that connection, Inspector Atwood's testimony that it was not possible for the berms to have been removed without leaving
traces of their presence, to be credible. Although I credit
this testimony, I do not find it necessary to make an express
finding of fact in resolving the ultimate issue in this case.
More specifically, I do not find it necessary to determine
whether there was a berm there or not at the time the dumping occurred the previous day or other times when dumping
occurred. The fact this hole was present at 8:50 a.m. on
August 2, 1978, presenting a·hazard as it did without the
berms or other similar means of protection constitutes a
violation, and I so find.
The remaining question is whether or not, in permitting
the violation, the Respondent was negligent. The facts of
this case indicate that this was a willful act. I'm not
saying it was a willful violation. It was a willful act on
the part of the Respondent based upon its understanding that
it was in compliance with the regulations.The negligence aspect of the case is not susceptible to
being analyzed in terms of the normal prece·pts of negligence
law. I do accept the Respondent's statement that in this
case it had a sincere good faith belief that it was not violating the standard in question. I thus find that it is not
a willful violation. If I found a willful violation, I'd
have to refer this for criminal action.
Analyzing it in terms of willfulness, I would therefore
find that the willfulness is excused by the good faith
belief--and what I believe to be mistaken belief--that they
were not in violation. This would, therefore, in my judgment
equate with a low degree of negligence were we to analogize
it to negligence.
Summing up then, I find that this is a large mine operator. I find that, based upon the history of previous violations, there is no reason to increase any penalty. I find
that the penalty that I'm to assess will not interfere with
Respondent's ability to continue in business. I have found
this to be a very serious violation which was attributable
to the Respondent's good faith belief that it was in compliance with the standard. And I footnote that I make such

366

finding even though I don't find much ambiguity or any
ambiguity in· that standard myself. Standing in some mitigation is the fact that Respondent proceeded rapidly to abate
the violation found. Weighing all those factors and again
noting that I had found either willfulness or gross negligence I would have given a penalty close to the maximum
which is $10,000 in this case, a penalty of,$1,500 is
assessed. Respondent is directed to pay the same within
30 days of issuance of my subsequent writ.ten decision which
will incorporate the oral decision which I have placed on
the record.
ORDER
Respondent, Climax Molybdenum Company, is ORDERED to pay a penalty of
$1,500 to the Secretary of Labor within 30 days from the issuance date of
this decision.

1f·~.L~~·'p· J4~d'/ /t ~Michael A. Lasher, Jr., Judge
Distribution:
Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1961 Stout Street, Room 1585, Denyer, CO 80294 (Certified
Mail)
Richard W. Manning, Esq., Climax Molybdenum Company, AMAX, Inc.,
13949 W. Colfax Avenue, Golden, CO 80401 (Certified Mail)·
John R. Tadlock, Esq., General Counsel, Oil, Chemical and Atomic
Workers' International Union, 1636 Champa Street, Denver, CO 80202
(Certified Mail)
David A. Jones, Jr., President, Oil, Chemical and Atomic Workers'
International Union, Local 2-24410, Box 949, Leadville, CO 80461
(Certified Mail)
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local 1823, P.O. Box 102, Minturn, CO 81645 (Certified
Mail)
Charles W. Newcom, Esq., 2900 First of Denver Plaza, 633 Seventeenth
Plaza, Denver, CO 80202 (Certified Mail)

367

FEDERAL M1NE SAFETY AND HEALTH REVIE'n COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 1

1980
Civil Penalty Proceeding

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

Docket No. PIKE 78-420-P
A. C. No. 15-08413-02012V
Pontiki No. 1 Mine

v.
PONTIKI COAL CORPORATION,
Respondent
DECISION
This matter is before me for reassessment of penalties for violations
involved in three withdrawal orders after reassignment of judges pursuant
to remand by the Commission's decision of October 25, 1979. The Administrative Law Judge who originally heard and decided this matter has since
retired. He found the violations occurred as alleged. However, for
failure of the Secretary's proof, he vacated the three section 104(c)(2)
orders in question and mitigated penalties for the reason that the orders
had been vacated.
In its reversal and remand, the Commission specifies only that the
reassessment be made without consideration of the vacated orders as a
mitigating factor. 1/ I therefore adopt the original judge's findings
with respect to the-six statutory criteria and incorporate such findings
by reference. 2/ Although the original judge indicated that the penalties were being "mitigated due to the fact that the orders involved
(were) vacated" the extent to which such reduction was carried was not
described or shown. In these circumstances, my assessments will be
de novo, that is, an independent evaluation of proper penalties--based,
however, on the penalty assessment factors found by the original judge.
It should be further noted that (a) while this Respondent was a very
large coal operator in 1977, it was not one of the giants of the industry
1/ The Judge's finding that the violations occurred as charged by MSHA,
and his findings with respect to the statutory criteria were not
disturbed.
2/ These findings are summarized in his written decision of February 9,
1979, at page 20, Finding Nos. 3 through 8, and are incorporated herein
by reference.

368

(Tr. 7-9), or affiliated with one of the giant coal-producing groups, 3/
and (b) no injuries or fatalities were involved in any of the violations. 4/
Respondent

l.

s assessed the following penalties:

Order No.

Date

Section

1 TE
1 MM
2 FDG

12/05/77
12/05/77
12/06/77

30 CFR 75.316
30 CFR 75.316
30 CFR 75.200

Penalty
250
1,250
4,500
$6,000

$

ORDER
IT IS ORDERED that Respondent pay to the Secretary of Labor the sum
of $6,000 within 30 days from the date of this decision.
,-2,._, • -;/' ... ~
~ ,tlf?..
,A A ~
~;a;_/.,,.~~~ , r#~::'-"~~

t7

.

Michael A. Lasher, Jr., Judge
Distribution:
William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K Street,
NW., Washington, DC 20006 (Certified Mail)
Judith Macaluso, Esq., Leo J. McGinn, Esq., Thomas A. Mascolino,
Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203
3/ See (Keystone Coal Industry Manual, (McGraw-Hill, 1977), pages 546,
756, and 757, indicating that in 1977 Pontiki was in Class 4 of a
10-class spectrum with annual coal production under 1 million tons, that
the largest group with which it was then affiliated was in Class 1 (the
largest class) with annual production of 3 million tons or more, and
that such group was not one of the top 15 coal-producing groups in 1976.
4/ Respondent's appeal to the United States Court of Appeals, D.C.
Circuit, was voluntarily withdrawn and dismissed on January 30, 1980.

369

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

.FEB 1 1 1980
Contest of Order

PONTIKI COAL CORPORATION,
Contestant

Docket No. KENT 79-115-R

v.

Order No. 706444
May 3, 1979

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

No. 1 Mine
Civil Penalty Proceeding

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

Docket No. KENT 80-53
Assessment Control
No. 15-08413-03042V

Petitioner

v.

No. 1 Mine

PONTIKI COAL CORPORATION,
Respondent

DECISION
Appearances:

William H. Howe, Esq., and Timothy J. Parsons, Esq.,
Loomis, Owen, Fellman & Howe, Washington, D.c., for
Pontiki Coal Corporation;
John H. O'Donnell, Esq., Office of the Solicitor, u.s.
Department of Labor, for Secretary of Labor.

Before:

Administrative Law Judge Steffey

Pursuant to written order dated June 22, 1979, a hearing in the aboveentitled 1/ consolidated proceeding was held on August 9, 1979, in Pikeville,
Kentucky,-under section 105(d) of the Federal Mine Safety and Health Act of
1977.
1/ The order proviaing for hearing consolidated any civil penalty issues
which might arise with respect to Order No. 706444 with the issues raised
by Pontiki Coal Corporation's request for review of Order No. 706444, MSHA's
Proposal for Assessment of Civil Penalty was filed on January 15, 1980, in
Docket No, KENT 80-53 seeking assessment of a civil penalty for the violation
of 30 CFR 75.403 alleged in Order No, 706444. Therefore, it is now possible
to decide in this proceeding the civil penalty issues on which evidence was
presented by the parties at the hearing held on August 9, 1979. My order did
not consolidate the civil penalty issues raised in Docket No. KENT 80-53 with
respect to underlying Citation No. 706762. Therefore, the order accompanying
this decision defers all civil penalty issues pertaining to Citation
No. 706762 for future disposition.

370

Counsel for Pontiki Coal Corporation filed on December 11, 1979, a
posthearing brief and counsel for the Mine Safety and Health Administration
filed on January 7, 1980, a reply to Pontiki's brief.
Issues
Pontiki's brief argues that Order No. 706444 is invalid as well as
underlying Citation No. 706762 on which Order No. 706444 is based. Pontiki
also contends that the violation of 30 CFR 75.403 alleged in Order No.
706444 did not occur or, in the alternative, that if a violation of section 75.403 did occur, th~ violation was not the result of any unwarrantable
failure on the part of Pontiki.
MSHA's brief argues that a violation of section 75,403 occurred as
alleged in Order No. 706444, that the violation was the result of an unwarrantable failure on the part of Pontiki, and that underlying Citation No.
706762 was validly issued and properly cited a violation of 30 CFR 75.313,
Additionally, MSHA's brief claims that I am obligated to determine in my
decision whether the violation of section 75.313 alleged in underlying
Citation No. 706762 occurred even though Pontiki did not raise that issue
in its contest of Order No, 706444. Finally, MSHA contends that a judge is
obligated to consider a conglomerate's total civil penalty record of previous violations when he is evaluating an operator's history of previous
violations as one of the six criteria which must be considered in assessing
penalties in civil penalty proceedings if violations of the mandatory health
and safety standards are found to have occurred,
Findings of Fact
My decision on all issues in this consolidated proceeding will be based
on the findings of fact set forth below:
1. Pontiki Coal Corporation is a subsidiary of Mapco, Inc, (Exh. 1),
In addition to Pontiki Coal Corporation, Mapco controls four other coal
companies, namely, Webster County Coal Corporation, Martiki Coal Corporation, Topiki Coal Corporation, and Mettiki Coal Corporation, Mapco's five
subsidiaries operate a total of nine underground and surface coal mines,
Pontiki operates two underground coal mines and one preparation plant (Exh.
2), Only Pontiki's No, 1 Mine is involved in this proceeding, That mine
employs 169 miners on two production shifts and one maintenance shift to
produce about 3,500 tons of raw coal per day from the Pond Creek coal seam
(Tr. 12), After cleaning, the No, 1 Mine's production amounts to about
3,000 tons per day (Tr. 96), The mining height ranges from 36 to 109 inches
(Tr, 12; 84), The No, 1 Mine is entered by one 400-foot shaft and one slope
(Tr, 12), Coal is produced from four working sections, three of which use
continuous mining machines and one of which utilizes conventional m1n1ng
methods (Tr. 45), The No, 1 Mine liberates approximately 450,000 cubic feet
of methane over a 24-hour period (Tr. 13).
2, An MSHA inspector entered the No, 1 Mine on May_3, 1979, at about
4:30 p.m, He was accompanied by an inspector trainee and Pontiki's safety

371

director, Mr, Danny P, Curry (Tr, 65; 81), All three men traveled to the
No. 5 Section which uses conventional mining equipment (Tr. 136). For a
month prior to May 3, the inspector had been engaged in making a complete
inspection of the No. 1 Mine (Tr. 14; 41). He knew from previous experience that the personnel in the No. 5 Section were having some difficulty
in controlling the roof and he wanted to check the roof conditions in the
No. 5 Section before finishing his inspection (Tr. 42; 45; 194).

3. The inspector, the trainee, and Mr. Curry traveled up the No. 5 or
track entry to the second crosscut outby the face (Tr. 83; 137). At that
point they observed a miner installing roof bolts. Mr. Curry remained at
the site of the roof bolter while the inspector and the trainee walked over
to return entries Nos. 6 and 7. When they returned from those entries,
they were rejoined by Mr. Curry at the No. 5 entry and all three men thereafter continued their examination of the entries by walking through the last
open crosscut to the No. 1 entry. They walked down the No. 1 entry to the
second open crosscut. As they entered the crosscut between the Nos. 1 and 2
entries, the inspector orally advised Mr. Curry that he was issuing a "(d)"
order (Tr. 139; 146).
4. Mr. Curry himself had been a former MSHA inspector (Tr. 134) and he
understood that the inspector was issuing an unwarrantable failure order (Tr.
154). Mr. Curry then left the inspector for about 10 minutes so that he
could call the mine superintendent, Mr. Sloan, for the purpose of letting
the superintendent know that the No. 5 Section had been closed by an order
(Tr. 140; 162).
5. The inspector had found that the mine personnel were doing a "good
job" of supporting the roof (Tr. 91), but he found that there was insufficient rock dust on the floor of the mine (Tr. 31-38). The inspector's
Order No. 706444 was written at 6:05 p.m. on May 3, 1979, and cites Pontiki
for a violation of 30 CFR 75.403 because there had been an "[i]nadequate
application of rock dust on mine floor in entries No. 1 through No. 7 and
connecting crosscuts on No. 005-0 Section, starting at spad No. 1450 and
extending inby approx[ imately] 360 feet" (Exh. 5).
6. The inspector based his citation of inadequate rock dusting in
seven entries and their connecting crosscuts on an examination of the crosscuts and entries which he could see by walking through the No. 5 entry to
the two rows of crosscuts outby the face (Tr. 46-47; 82-83). The inspector
walked through the first and second rows of crosscuts outby the face and
looked down each of the seven entries. The inspector walked down the
No. 1 entry for three crosscuts from the face, down the No. 2 entry for
2-1/2 crosscuts from the face, and down the No. 4 entry to the belt feeder
which was located just inby the third crosscut from the face. With the
exception of the No. 5 entry, the inspector did not travel any entry for a
distance of more than three crosscuts from the face (Tr. 84). Although the
inspector had no illumination other than his cap light, he stated that he
could see a distance of from 300 to 360 feet down each entry and could
determine that the floor had been inadequately rock dusted (Tr. 82; 87;
196). There were permanent stoppings between the Nos. 2 and 3 entries and

372

between the Nos. 5 and 6 entries for the purpose of separating the intake
and return airways (Tr. 47; 86; 159-160). The inspector could not have seen
what the condition of the rock dust was in the crosscuts. between Nos. 2 and
3 entries and between Nos, 5 and 6 entries because his observation from
entry No. 5 would have been blocked by permanent stoppings as he walked up
the No. 5 entry to the working faces (Tr. 149). Those portions of the
crosscuts would not have constituted a major part of the No. 5 Section and
would not have existed closer than three crosscuts from the working face
(Tr. 86).
7. The inspector took two floor samples and the trainee took one floor
sample to support the inspector's claim that rock dust on the mine floor in
No. 5 Section was inadequate. One of the inspector's floor samples was
taken at a point 20 feet inby spad No. 1491 in the No. 2 entry. The inspector's other floor sample was taken in the crosscut between the Nos. 1 and 2
entries at a point which was about 50 or 60 feet from the place where he
obtained the first sample. The inspector trainee's floor sample was taken
in the No. 3 entry about 10 feet outby spad No, 1490, or approximately
80 feet from the place where the inspector took his first sample (Exh. C;
Tr. 190-195). Thus, all three samples used to substantiate the inspector's
order were taken either in or close to the second crosscut from the face and
all three samples were taken within a distance from each other of about
120 feet even though the inspe.ctor' s order covered the entire No. 5 Section
for a distance of seven crosscuts, or about 420 feet outby the face (Exhs.
5, 6 and C; Tr. 78-79; 86). The inspector considered the three samples,
two of which revealed an incombustibility of 35 precent and one of which
showed an incombustibility of 31 percent, to be representative of the condition of the floor throughout the No. 5 Section (Tr. 37-38).
8. The inspector conceded that there had been spillage in the crosscut
where the samples were taken, but he insisted that he did not take samples
where spillage existed (Tr. 71-72). In the inspector's opinion, the amount
of spillage in the crosscuts and entries near the face was not excessive and
would not have justified citing Pontiki for a violation of 30 CFR 75.400 for
permitting combustible materials to accumulate (Tr. 90-91).
9. Respondent's safety director introduced as Exhibit Ca drawing of
the No. 5 Section which he made about 2 days after the inspector's order was
issued. Exhibit C shows that both of the inspector's samples were taken in
places where spillage existed. The sample obtained by the trainee was taken
at a place where no spillage .is shown on Exhibit C, and the incombustibility
of that sample was 35 percent (Exhs. 6 and C; Tr. 144).
10. The chief mine foreman, second-shift mine foreman, and third-shift
mine foreman all testified that they were having trouble in controlling the
roof in the No. 5 Section (Tr. 105; 112; 121; 124; 170). Timbers were being
set on each side of the entry and 72-inch roof bolts on 4-foot centers were
being used to support the roof (Tr. 91-92). It was also frequently necessary to install cribs as further supplemental support (Tr. 112; 124; Exh. B).

373.

Pontiki's safety director and all three foremen stated that when additional
roof supports and rock dusting needed to be done at the same time, they gave
priority to installation of roof supports (Tr. 112; 124; 151; 180).
11. All three foremen testified that the cleaning and rock dusting
program in the No. 5 Section consisted of cleaning and rock dusting during
both production shifts as well as cleaning and rock dusting on the maintenance shift (Tr. 99-100; 119; 124; 168-169). On each production shift,
the operator of the scoop had the duty of bringing in supplies such as
roof bolts, timbers, and rock dust during the first part of his shift.
After he had completed bringing in supplies, it was the scoop operator's
duty to shove excess coal accumulations into the face and to apply rock
dust to the floor after the loading machine had completed removal of coal
from ·each working place (Tr. 99-100; 167-169). The chief mine foreman
each day leaves a list of duties for the third-shift mine foreman to complete on his shift between midnight and 8:00 a.m. Those duties always
include cleaning up excessive coal accumulations and applying rock dust
(Tr. 100-101; 119; Exhs. A and B).
12. Three of Pontiki's witnesses agreed that on May 3, 1979, when
Order No. 706444 was written, there was an inadequate amount of rock dust
on the mine floor (Tr. 110; 164; 174-175). Pontiki's safety director, who
had formerly been an MSHA inspector for about 3 years, stated that he agreed
that a violation of section 75.403 existed at the time Order No. 706444 was
written, but the safety director stated that he disagreed with the inspector's claim that the violation was the result of unwarrantable failure (Tr.
164-165).
13. Pontiki's mine foreman stated that rock dusting on the midnight
or maintenance shift is done by a machine and the maintenance shift concentrates on the area which has been mined during the preceding two production
shifts (Tr. 99-100). The mine foreman specifically stated: "Honestly,
when he dusts the last line of breaks he doesn't concentrate on the floor.
Really machine dusting you just can't dust the floor * * *" (Tr. 104). The
mine foreman explained that rock dust is applied by hand during the production shift by the scoop operator. Sometimes they get behind with dusting
the floor and at such times"*** we'll work extra hours at dusting the
floor" (Tr. 105).
14. Pontiki's third-shift foreman stated that the miners on his maintenance shift did not apply rock dust to the mine floor as well as they
should. He stated specifically, "I leave instructions for them to spray
the ribs and the top and the bottom. Of course, you know, a lot of times,
they don't get maybe to the bottom as good as they should. It should be
thicker than what it is, really" (Tr. 123).
15. The inspector issued an unwarrantable failure order because the
section foreman knew that inadequate rock dusting had been done, but the
foreman was taking no action to apply rock dust although the roof-bolting
machine was being operated and the miners were getting ready to produce

374

coal at the time Order No. 706444 was issued (Tr. 39; 45). The inspector
believed that the violation of section 75.403 contributed significantly and
substantially to the cause and effect of a safety hazard because the No. 1
Mine releases methane and an explosion could have occurred as a result of
the inadequate rock dusting. The inspector believed that management was
becoming complacent about the need to apply an adequate amount of rock dust.
The inspector did not find that there was sufficient methane in the area at
the time the order was written to warrant a finding of imminent danger (Tr.
39-40; 64; 73-80).
16. Order No. 706444 was based on Citation No. 706762 issued April 3,1979, citing Pontiki for a violation of section 75.313 because "[t]he Sand
S battery powered scoop (no serial No.) which is used to load and haul coal
from the faces on No. 001-0 Section is not equipped with a methane monitor"
(Exh. 3). Pontiki had been using the scoop for about 2 weeks without ever
having installed a methane monitor on the scoop. If the inspector had found
that the scoop had been equipped with a methane monitor which had become
inoperable, he would have issued an ordinary citation under section 104(a)
of the Act, but he found that Pontiki's use of a scoop for 2 weeks without
installing a methane monitor was a sufficient showing of negligence to
justify his issuance of the citation under section 104(d)(l) of the Act.
The inspector found that the alleged violation of section 75.313 contributed
significantly and substantial~y to the cause or effect of a safety hazard
because the No. 1 Mine releases methane and a methane monitor will deenergize equipment if it encounters a concentration of methane of up to 2 percent or more. A concentration-of methane of up to 5 percent may cause an
ignition. The inspector did not find that an imminent danger existed
because the scoop was not being operated in an explosive concentration of
methane (Tr. 14-29).
17. In the inspector's opinion, Pontiki's management failed to demonstrate a good faith effort to achieve rapid compliance after he issued Order
No. 706444 citing Pontiki for a violation of section 75.403. The inspector based his opinion of lack of good faith abatement on the fact that his
order was issued on May 3, 1979, and was not abated until May 7, 1979 (Tr.
40). After the inspector was shown a calendar, he stated that his order
was issued on a Thursday at 6:05 p.m. and that an intervening weekend
passed before he terminated the order on Monday, May 7, 1979 (Tr. 41). The
inspector's opinion as to lack of good faith abatement failed to take into
consideration the fact that Pontiki's management tried to get an inspector
to return to the mine on Friday, May 4, 1979, to terminate the order, but
no MSHA inspector was available for checking the conditions in the No. 5
Section because all of the inspectors were attending a personnel meeting
at MSHA's Prestonsburg Office (Tr. 42-43; 115; 187). The inspector did not
bring his notes with him when he testified at the hearing and therefore was
unable to agree or disagree as to his availability to check the No. 5 Section on May 4, 1979, to determine whether his order should be terminated
(Tr. 43). In the opinion of Pontiki's mine foreman, the conditions cited
in the inspector's order had been abated by the next day after the order
was issued (Tr. 115).

375

18. When Pontiki's management was unable to obtain an inspector to
check the conditions in the No, 5 Section on May 4, 1979, additional cleaning and rock dusting were done during the weekend, but much of that cleaning consisted of removal of loose coal which had sloughed off the ribs and
was lying behind the roadway timbers (Tr, 132; 187). The inspector stated
that his order was not intended to require the removal of material from
behind the timbers (Tr. 67-71). The preponderance of the evidence shows
that Pontiki's management demonstrated a good faith effort to achieve rapid
compliance.
Docket No. KENT 79-115-R
The Validity of Underlying Citation No. 706762
The first contention made in Pontiki's brief (pp. 24-27) is that underlying Citation No. 706762, on which Order No, 706444 is based, is invalid
because it does not contain the finding of unwarrantable failure which is
required by section 104(d)(l) of the Act. For all practical purposes,
Pontiki is raising the question of whether MSHA Form 7000-3, which is used
by inspectors for issuing citations and orders under the 1977 Act, is sufficiently specific to comply with the requirements of section 104(d)(l)
when the inspector wishes to issue an unwarrantable failure citation, As
Pontiki correctly points out, section 104(d)(l) unambiguously requires that
"***if he [an authorized representative·of the Secretary] finds such violation to be caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter,"
Exhibit No. 3 in this proceeding is Citation No. 706762 issued by an
inspector on April 3, 1979. Citation No, 706762 is written on MSHA Form
7000-3. The inspector placed an "X" in a box at the top of the form to
show that he was issuing a citation. Under the word "Citation" there
appears in parentheses "See Reverse," If one turns the form over, he
reads on the right side of the back of the form the following statement:
CITATION/ORDER
Pursuant to the Federal Mine Safety and Health Act of 1977,
the undersigned Authorized Representative of the Secretary
upon making an inspection or an investigation of the hereon
designated mine on this date finds/believes that the following condition or practice exists, or has existed, in the
mine area or on the equipment described hereon,
Section 104(a)

- Violation of the Act, mandatory
health or safety standard, rule,
order or regulation

376

Section 104(d)(l)

- Unwarrantable failure - could
significantly and substantially
contribute to health or safety
hazard

Section 104(f)

- Citation - exceeding respirable
dust standard

Beneath the word "Citation" on the front of the form, the phrase "Type
of Action" appears. The inspector entered after "Type of Action" the numbers
and letter "104-D." There is nothing on the front of the form to explain
what the entry "104-D" means. If one turns the form over, he will find
nothing on the back of the form which explains what "104-D" means, but he
will find under the caption "Citation/Order," as quoted above, an explanation opposite "Section 104(ci)(l)" to the effect that section 104(d)(l) is
associated with "unwarrantable failure."
Beneath the words "Part and Section" on the front of the form, the
inspector placed an "X" in a box after which there appears "S and S (See
Reverse)." Again, if one turns to the back of the form, he will find
opposite "Section 104(d)(l)" a statement indicating that a 104(d)(l) type
of action involves a violation which "could significantly and substantially
contribute to health or safety. hazard."
Pontiki contends that the entries on Exhibit No. 3 or Form 700G-3, as
described above, fall short of _compliance with section 104(d)(l) of the Act
which requires that an inspector shall include a finding of unwarrantable
failure "* * * in any citation given to the operator U\lder this chapter."
MSHA's brief (p. 11) notes that the Commission stated in Secretary of
Labor v. Jim Walter Resources, Inc., 1 F.M.S.H.R. Comm. Decisions 1827, 1829,
that "(t]he primary reasons compelling the statutory mandate of specificity
is for the purpose of enabling the operator to be properly advised so that
corrections can be made to insure safety and to allow adequate preparations
for any potential hearing on the matter." The issue in the Jim Walter case
was whether the inspector's description of the "condition or practice" cited
in his notice of violation was sufficiently specific to comply with section
104(e) of the Federal Coal Mine Health and Safety Act of 1969, but the
principle is the same, namely, whether Exhibit No. 3 sets forth a specific
finding as to unwarrantable failure which satisfies the provisions of section 104(d)(l) of the 1977 Act.
I find that Exhibit No. 3 complies with the "finding" requirements of
section 104(d)(l). The front of Exhibit No, 3 informed Pontiki that Citation No. 706762 was being issued under section 104(d). Although the inspector did not add subsection (1) after his entry of section "104-D," his
omission was not prejudicial to Pontiki because there is no entry on the
back of Citation No. 706762 with which the inspector's reference to "104-D"
could have been confused. Therefore, the back of Citation No. 706762 specifically stated that the inspector had found the existence of a condition

377

or practice which was described on the front of Citation No. 706762. The
front of the citation also advised Pontiki that the citation was being
issued under section 104-D and the back of the form clearly shows that any
reference to "D" must pertain to section 104(d)(l) which is only associated
with unwarrantable failure. The inspector's checking of "S and S" on the
front of the citation was associated with a request that the operator examine
the "reverse" or back side of the form. There, again, opposite "Section
104(d)(l)," the form explained that "S and S" meant a significant and substantial violation which could contribute to a health or safety standard.
I do not think that Pontiki's brief raises a question about whether
the evidence in this proceeding would support a finding that the violation
alleged in Citation No. 706762 was the result of unwarrantable failure on
the part of Pontiki, but if such an issue is inherent in Pontiki's arguments, I believe that Finding No. 16, supra, supports the inspector's
finding of unwarrantable failure in Citation No. 706762, assuming that
unwarrantable failure has the meaning assigned to that term in Zeigler
Coal Co., 7 IBMA 280, 295-96 (1977).
MSHA's Request that I Find a Violation of Section 75.313
At the hearing, I sustained an objection by Pontiki's counsel when
MSHA's counsel asked the inspector whether Pontiki had demonstrated a good
faith effort to achieve compliance after Citation No. 706762 was issued.
I sustained the objection because my. order had consolidated for hearing in
this proceeding only the civil -penalty issues pertaining to Order No. 706444.
Since Pontiki's counsel had claimed that the underlying Citation No. 706762
was invalid only for failure to make the findings required by section
104(d)(l) of the Act, it did not occur to me that I should consolidate the
the civil penalty issues with respect to underlying Citation No. 706762 with
the civil penalty issues pertaining to Order No. 706444.
In the preceding portion of this decision I have rejected Pontiki's
argument that Citation No. 706762 failed to make the findings required by
section 104(d)(l). Since Pontiki was not given notice that the civil penalty issues with respect to Citation No. 706762 would be considered at the
hearing, I think that I must reaffirm my sustaining of Pontiki's objection
to my considering in this proceeding the civil penalty issues with respect
to Citation No. 706762.
It is true that MSHA's brief (p. 7) argues that I may find a violation
of section 75.313 on the basis of the evidence introduced by MSHA in this
proceeding regardless of whether Pontiki was given notice that the civil
penalty issues with respect to Citation No. 706762 would be considered at
the hearing. MSHA's theory is that I may determine whether the violation
of section 75.313 alleged in Citation No. 706762 occurred as a part of my
consideration of Pontiki's arguments that Citation No. 706762 is invalid
for failure to make the findings required by section 104(d)(l) because MSHA
claims that one of the findings required by section 104(d)(l) is that the
inspector find that a violation has occurred. While that may be true, it

378

is a fact that Pontiki did not raise the specific issue of whether a violation of section 75.313 occurred. Pontiki's objection to the underlying
citation has always been directed to the question of whether the citation
properly made the finding as to unwarrantable failure which is required by
section 104(d)(l).
In any event, it is a fact that my order did not consolidate for hearing in this proceeding the civil penalty issues associated with Citation
No. 706762. The sole reason that MSHA requests me to find that a violation
of section 75.313 occurred is to make my finding "res judicata" for the
prospective civil penalty proceeding (MSHA's brief-:-P. 7). I do not believe
I can ignore the clear provisions of my order providing for hearing and consider issues which my order failed to state would be considered.
As I stated at the hearing, it was an oversight on my part not to have
consolidated for hearing the civil penalty issues pertaining to Citation
No. 706762. It has been my consistent practice to consolidate for hearing
all civil penalty issues with the issues relating to the primary order or
citation involved in proceedings initiated by applications for review or
notices of contest, but this is the first proceeding I have had in which
MSHA wished to have me consider the civil penalty issues associated with an
underlying citation. It would be unfortunate if my lack of foresight in
consolidating the civil penalty issues pertaining to Citation No. 706762 for
hearing in this proceeding should result in the necessity of my having to
hold a further hearing on the civil penalty issues raised by MSHA's Proposal
for Assessment of Civil Penalty filed in Docket No. KENT 80-53 with respect
to underlying Citation No. 706762. As explained below, I do not think that
an additional hearing should be required to resolve the civil penalty issues
remaining to be determined with respect to Citation No. 706762.
Although the order accompanying this decision disposes only of the civil
penalty issues raised by Order No. 706444, it is my opinion that this record
contains the essential facts required for determining all civil penalty
issues with respect to Citation No. 706762, provided counsel for the parties
are agreeable to a resolution of the civil penalty issues on the basis of the
record in this proceeding. The fact that evidence has been received with
respect to Citation No. 706762 should not, of course, preclude the parties
from settling the civil penalty issues raised with respect to Citation
No. 706762, if they should be inclined to do so.
I shall take no action in scheduling a hearing or deciding the civil
penalty issues with respect to Citation No. 706762 until time for filing a
request for discretionary review of my decision has expired. Within a reasonable time after review has either been granted or denied, counsel for
the parties should advise me as to their wishes concerning the manner for
disposition of the civil penalty issues. If I do not eventually receive
an expression of opinion from counsel for the parties as to the method they
would prefer for disposing of the civil penalty issues raised by Citation
No. 706762, I shall schedule those issues for hearing.

379

The Validity of Order No. 706444
The first argument in Pontiki's brief (p. 28) with respect to the
invalidity of Order No. 706444 is that the order must fall because it was
based on Citation No. 706762 which has been shown by Pontiki to be invalid.
Since I have already held in a preceding portion of this decision that Citation No. 706762 was validly issued, I must necessarily reject Pontiki's
first argument.
The second argument raised by Pontiki's brief (pp. 28-29) "***is
substantially identical to that made with respect to the underlying citation," namely, that Order No. 706444 is invalid because it failed to make
the special findings which are required by the remainder of section 104(d)(l)
which provides:
* * * If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance
of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order [of withdrawal] * * *·
Since Pontiki's argument with respect to the invalidity of Order No.
706444 is substantially identical to that made with respect to underlying
Citation No. 706762, my determination as to the validity of Order No.
706444 will also be nearly identical to that made with respect to Citation
No. 706762. Order No. 706444 was received in evidence as Exhibit No. 5.
Form 7000-3 used by the inspector in this instance for issuance of Order
No. 706444 is, of course, identical to the form used for issuance of Citation No. 706762 except that the inspector correctly cited the type of action
as 11 104(d)(l) 11 and checked the block at the top of the form indicating that
he was issuing an order of withdrawal. When Exhibit No. 5 is examined on
its reverse side in response to the suggestion on the front of the form to
"See reverse," the following statement will be found on the left side of the
back of the form:
ORDER
You are hereby ordered to cause immediately all persons,
except those permitted under Section 103(j), 103(k) and/or
104(c) of the Federal Mine Safety and Health Act of 1977, to
be withdrawn from, and to be prohibited from, entering the
area of the mine described hereon until an Authorized Representative of the Secretary determines that the danger(s) and
its causes no longer exist, the violation(s) of the mandatory
health or safety standards have been abated or the emergency
has been eliminated.

380

Section 104(b)

- Failure to abate a violation 104(a)
or (d)(l) in the time period given

Section 104(d)(l)

- Unwarrantable failure - subsequent
to 104(d)(l) citation during the
same inspection or within 90 days
after issuance of 104(d)(l) citation

Section 104(d)(2)

- Unwarrantable ·failure violation subsequent to issuance to 104(d)(l)
order - subsequent inspection - no
intervening inspection of the mine
in its entirety which has disclosed
no further unwarrantable violation

* **

** *

***

An examination of Exhibit No. 5 shows that the inspector checked that
an order of withdrawal was being issued under section 104(d)(l) of the Act
and the reverse side of Exhibit No. 5 explained to Pontiki that the order
involved a finding that the violation was the result of unwarrantable failure found during the same inspection or within 90 days after the issuance
of Citation No. 706762. Exhibit No.• 5 clearly made all the preliminary
findings which are required to comply with the provisions of section
104(d)(l) of the Act insofar as they pertain to the issuance of an order.
Although the former Board of Mine Operations Appeals has held that the violation cited in an order issued under section 104(c)(l) of the 1969 Act does
not have to be a violation which would significantly and substantially contribute to the cause or effect of a health or safety standard (Zeigler Coal
Co., 6 IBMA 182 (1976); Old Ben Coal Co., 6 IBMA 229 (1976); Old Ben Coal
CO:-, 6 IBMA 234 (1976); Old Ben Coal Co., 7 IBMA 224 (1976); and Alabama
"BY=°Products Corp., 7 IBMA 85 (1976)), the inspector checked the "Sand S"
block on Order No. 706444 because he believed the violation of section
75.403 cited in the order was a significant and substantial violation which
could significantly and substantially contribute to the cause and effect of
a health or safety standard (Finding No. 15, supra).
Based on the examination of Order No. 706444 set forth above, I find
that the order contained th~ special findings required by section 104(d)(l)
of the Act and was therefore a valid order.
The third argument made in Pontiki's brief (pp. 29-31) is that the violation of section 75.403 cited in Order No. 706444 was not proven. As
indicated in Finding No. 5, supra, Order No. 706444 cited Pontiki for having
inadequate rock dust in all seven entries and connecting crosscuts in the
No. 5 Section of the mine. Pontiki points to the fact that the inspector's
order of termination stated that loose coal and coal dust were removed from
the No. 5 Section and that entries Nos. 1 through 7 and connecting crosscuts
were adequately rock dusted. Pontiki then refers to its own witnesses' testimony to the effect that there were loose coal accumulations in the No. 5

381

Section and concludes from such evidence that since there was a violation of
section 75.400 in the No. 5 Section, the inspector incorrectly cited Pontiki
for a violation of section 75.403.
One of the difficulties I have with Pontiki's argument that the existence of a violation of section 75.400 precludes an inspector from citing
Pontiki for a violation of section 75.403, is the fact that three of
Pontiki's own witnesses, including one who had previously been an MSHA
inspector for 3 years, stated unequivocally that there was inadequate rock
dust on the floor in the No. 5 Section (Finding No. 12, supra). Obviously,
the inspector could have cited Pontiki for a violation of section 75.400
in the same order in which he cited Pontiki for a violation of section
75.403. Thus, it is quite immaterial that the floor in the No. 5 Section
contained loose coal accumulations so long as the evidence also showed that
Pontiki had failed to apply an adequate amount of rock dust to the floors
as required by section 75.403.
Section 75.403 provides as follows:
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 shaH not be less than 65 per centum
[in intake entries] * * *· [Emphasis supplied.]
All the entries in which the inspector obtained a total of three samples
were in intake air and two samples, when analyzed, showed an incombustible
content of 35 percent and one sample had an incombustible content of 31 percent. The inspector's order cited a lack of rock dust in only those areas
where rock dusting is required, that is, the areas were more than 40 feet
from the working face, they were not too wet or too high in incombustible
content to propagate an explosion, they were not inaccessible or unsafe to
enter, and they had not been exempted from rock dusting by the Secretary
(Tr. 93-94). Inasmuch as section 75.403 requires that an adequate amount
of rock dust be "maintained" in the entries and crosscuts cited in Order
No. 706444, Pontiki was not exempt from having the entries and crosscuts
rock dusted just because its witnesses testified that an excessive amount
of loose coal and coal dust had been permitted to accumulate. Pontiki was
required by section 75.400 to keep the loose coal cleaned up and was also
required by section 75.403 to apply sufficient rock dust to maintain the
incombustible content at 65 percent in intake entries. The inspector
believed the loose coal accumulations of about 1 inch were sufficiently
thin that the area could be rendered 65 percent incombustible by application of rock dust alone without any cleaning (Finding Nos. 8 and 18,
supra). If he had also believed that the loose coal needed to be cleaned
up before rock dust could be applied, he could have cited Pontiki for a
violation of section 75.400 and also for a violation of section 75.403.
The fact that the inspector elected to cite Pontiki for only one violation
instead of two does not make his order invalid for failing to cite both
violations.

382

Perhaps the most unsatisfactory aspect of the evidence presented by
MSHA to prove that a violation of section 75.403 existed is the question
of whether the in.spector' s three samples were really representative of
the conditions which existed throughout the seven entries and connecting
crosscuts cited in the inspector's order (Pontiki's Brief, p. 31). The
evidence unequivocally shows that all three samples were taken within the
second crosscut from the face, or within a few feet of that crosscut in
the Nos. 2 and 3 entries. Thus, the samples proved that the floor in the
second crosscut from the face had an incombustibility of from 31 to 35 percent (Finding No. 7, supra). The inspector believed that those three samples were representative of conditions throughout all seven entries and
connecting crosscuts, but his credibility would have been considerably
enhanced if he had taken his samples farther apart than he did.
The inspector's testimony was, however, corroborated by the testimony
of Pontiki's safety director who had been an MSHA inspector for about
3 years before he began working for Pontiki. The safety director was
traveling with the inspector when the inspector stated that he was going
to issue a "(d)" order citing Pontiki for a violation of section 75 .403.
Pontiki's safety director candidly stated that he agreed that Pontiki had
violated section 75.403 (Finding No. 12, supra). Pontiki's safety director
was of the opinion that the inspector should have taken additional samples
and that the violation was not the result of unwarrantable failure, but he
readily agreed that a violation of section 75.403 had occurred. Additionally, two of Pontiki's foremen stated that an inadequate amount of rock dust
had been applied to the mine floor and they specifically stated that the
machine duster used on the maintenance shift did not apply as much rock dust
to the floor of the mine as was desirable (Finding Nos. 13 and 14, supra).
Therefore, I find that the preponderance of the evidence shows that a violation of section 75.403 occurred as cited in Order No. 706444 (Finding Nos.
3 through 9 and 12 through 14, supra).
The fourth argument made in Pontiki' s brief (pp. 32-39) is that, ·assuming, arguendo, that a violation of section 75.403 occurred, the violation
was not the result of an unwarrantable failure by Pontiki's management.
Many of the factual arguments advanced by Pontiki in support of its argument
that MSHA failed to prove that the violation was the result of unwarrantable
failure have been answered in my discussion above of the issue as to whether
a violation of section 75.403 was proven. I agree that Pontiki's brief
correctly cites the language from the former Board's Zeigler opinion for.the
correct definition of the words "unwarrantable failure," namely (7 IBMA at
295-96):

* * * an inspector should find that a violation of any mandatory standard was caused by an unwarrantable failure to comply with such standard if he determines that the operator
involved has failed to abate the conditions or practices constituting such violation, conditions or practices the operator knew or should have known existed or which it failed to
abate because of a lack of due diligence, or because of
indifference or lack of reasonable care. [Emphasis supplied.]

383

Pontiki's brief also correctly quotes one of the inspector's answers in
response to questioning done to elicit from the inspector his understanding
of the words "unwarrantable failure" (Br., p. 32 and .Tr. 27):
Unwarrantable failure on the part of an operator is a
violation of a law where a condition exists at the mines
which could add substantially and significantly to the
health and safety of the miners. The operator knows the
condition exists and yet is doing nothing to correct it.
Or it can be a condition that exists where the operator
knows or through diligent effort should have known the
condition existed yet he was doing nothing to correct it.
This is what I consider unwarrantable; it's a condition
the operator knows exists.
Inasmuch as the inspector practically quoted one of the definitions of
unwarrantable failure given in the Board's Zeigler opinion, supra, it is
difficult to determine any defects in the inspector's rationale for finding
that the violation cited in his order was the result of an unwarrantable
failure to comply. Pontiki, therefore, resorts to language in the Zeigler
opinion in which the Board indicated that the inspector's judgment that
unwarrantable failure existed must be based on a thorough investigation and
must be reasonable in light of the peculiar relevant facts and circumstances
which existed at the time the .inspector writes an unwarrantable failure
order. Pontiki argues that the inspector's finding of unwarrantable failure
was not based on a thorough investigation or reasonable conclusions because
he did not walk the complete length of all the entries and connecting crosscuts cited in his order and because he did not inquire about the efforts
which Pontiki's management was making to maintain an adequate coating of
rock dust in the No. 5 Section (Br., pp. 34-36).
Although the inspector did not walk the entire length of each of the
entries cited in his order (Finding No. 6, supra), he did inspect the face
area, including walking through the last open crosscut and the second open
crosscut from the face. He did walk back to the feeder and he did look
down each of the entries. While he may not have been able to see a total
distance of 360 feet with great precision while having only his cap light
for illumination, it is quite probable that he could distinguish between
the blackness of the floor and the whiteness of the roof and ribs for a
distance of 360 feet. His order was primarily based on what he saw in the
last two crosscuts and the fact that the floor appeared black everywhere
he looked. Therefore, his testimony that he could see for a distance of
360 feet for the purpose of determining the condition of the floor is a
credible statement.
It should be recalled that the inspector entered the mine about
4:15 p.m. or shortly after the second shift went to work at 4:00 p.m. (Tr.
136). The inspector issued his unwarrantable failure order at 6:05 p.m.
after an examination of the No. 5 Section which had lasted about 1-1/2 hours.
Pontiki's safety director testified that 190 shuttle cars of coal had been

384

produced in the No, 5 Section during the day shift which had ended just a
few minutes before the inspector began his examination of the No. 5 Section
(Tr. 142). I have never had a case in which anyone estimated the amount of
coal hauled by shuttle cars to be less than 5 tons, and most of the time,
the tonnage is estimated at 8 tons. Since all witnesses agreed that the
shuttle cars in the No, 5 Section had been loaded so high that coal spilled
off of them on the way to the feeder, it is likely that the 190 shuttle cars
produced on the No, 5 Section during a single shift were hauling 8 tons
each, In any event, the cars would have hauled from 950 tons (190 x 5) to
1,520 tons (190 x 8), The four producing sections in the No. 5 Mine produce a total of about 3,500 tons of raw coal per day, Therefore, the production of about 1,000 tons of coal during a single shift on a single
section was a remarkable achievement, Moreover, even if the 190 cars
only hauled 1 ton of coal each, just the process of loading and unloading 190 cars within an 8-hour period was a phenomenal accomplishment,
Pontiki's brief emphasizes that management had a very fine program for
cleaning and rock dusting in the No, 1 Mine (Finding No. 11, supra), All
three of Pontiki's foremen testified, however, that they were having a great
many roof-control problems in the No, 5 Section and that much of their
time was being spent in installing supplemental roof support in addition to
the normal roof-bolting configuration, They further stated that when both
a need for supporting the roof and a need for rock dusting occurred simultaneously, they gave priority to supporting the roof (Finding No. 10, supra),
Three of Pontiki's witnesses also testified that they were not applying--asmuch rock dust to the floor as was desirable (Finding No. 13, supra).
Pontiki's chief foreman, in describing their difficulties in keeping the
floor cleaned and rock dusted in the No, 5 Section, stated (Tr. 105):
Well, what I seen was just the ribs rolling off, And,
well, the seam of coal was I guess all across the face from
seven to nine feet and when a piece would tumble off it
would almost close the roadway, if you know what I mean.
Sometimes it would fall twenty foot long and clear across
the road, but we had all kinds of trouble with that. We
done everything I could and I guess just failed, that's all.
It is easy to understand why Pontiki's management thought that the
inspector's finding of unwarrantable failure was unfair, The record shows
that management had procedures which should have assured that the roof in
the No. 5 Section was controlled and that the section was properly cleaned
and rock dusted (Findings Nos. 10 and 11, supra). Nevertheless, in my
opinion, there was at least one defect in management's plan, namely, an
unreasonable and excessive reliance was placed on the ability of the operators of the scoop to bring in supplies, clean up excess coal, and apply
rock dust to the floor during the production shifts, It was the duty of
the scoop operator to bring in roof bolts, rock dust, and other supplies
at the beginning of each shift, After he had finished bringing in supplies, it was his duty to clean uPl:OQse coal accumulations and apply rock

385

dust to the floor by hand. The maintenance shift, which worked from midnight to 8 a.m., was responsible for machine dusting the roof, ribs, and
floor. While they were supposed to apply rock dust .to the floor, they did
not apply as much as was desirable (Finding Nos. 12 and 13, supra).
Since management was having difficulty in supporting the roof and since
extra time was needed to maintain the roof, the evidence clearly supports
a finding that management was not giving as much attention to cleaning and
rock dusting as was required in the circumstances. In every instance, it
was the scoop operator's duty to clean and rock dust after he had completed
bringing in supplies. In other words, Pontiki's management was placing primary emphasis on producing coal rather than in maintaining a completely
safe operation. At the beginning of the shift on which the inspector's
order was issued, one of Pontiki's shift foremen had made an inspection of
the section before the inspector arrived and he had concluded that the section needed cleaning and rock dusting (Tr. 175). Despite the fact that
management knew an inadequate amount of rock dust was being applied to the
floor and that excessive coal needed to be cleaned up, management was continuing to produce 190 shuttle cars of coal per shift, instead of stopping
production long enough to clean up the section and apply an adequate
amount of rock dust. It makes very little difference if miners are protected from having the roof fall on them if, while standing under a perfectly safe roof, they are killed or injured by a coal dust explosion.
A preponderance of the evidence supports the inspector's finding that
management knew an inadequate amount of rock dust had been applied and yet
management was not making sure ~hat the section was cleaned and rock dusted
as required by section 75.403. Therefore, I find that the inspector properly found that the violation of section 75.403 cited in Order No. 706444
was the result of unwarrantable failure. Since Order No. 706444 has successfully withstood all of Pontiki's arguments, the order accompanying this
decision will hereinafter affirm Order No. 706444.
Docket No. KENT 80-53
MSHA's Proposal for Assessment of Civil Penalty was filed on January 15,
1980, seeking assessment of civil penalties for the violations of sections
75.313 and 75.403 alleged in Citation No. 706762 and Order No. 706444,
respectively. As I have already explained on page 10 of this decision,
supra, my order setting this case for hearing did not consolidate the civil
penalty issues raised with respect to underlying Citation No. 706762. Therefore, my decision in this proceeding will deal only with the civil penalty
issues concerning Order No. 706444.
I have hereinbefore found that the violation of section 75.403 alleged
in Order No. 706444 occurred. I shall hereinafter consider the six criteria
set forth in section llO(i) of the Act so that an appropriate civil penalty
may be assessed for the violation of section 75.403 cited in Order No.
706444.

386

Size of Respondent's Business
On the basis of Finding No. 1, supra, I find that Pontiki is a large
operator and that the civil penalty to be assessed in this proceeding
should be in an upper range of magnitude insofar as it is determined under
the criterion of the size of respondent's business.
Effect of Penalties on Operator's Ability To Continue in Business
Pontiki's counsel did not present any evidence at the hearing with
respect to Pontiki' s financial condition. In Buffalo Mining Co., 2 IBMA
226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the
former Board of Mine Operations Appeals held that when a respondent fails
to present any evidence concerning its financial condition, a judge may
presume that payment of penalties would not cause respondent to discontinue
in business. In the absence of any specific evidence to the contrary, I
find that payment of penalties will not cause Pontiki to discontinue in
business.
Good Faith Effort To Achieve Rapid Compliance
On the basis of Finding Nos. 17 and 18, supra, I find that Pontiki
demonstrated a good faith effort to achieve compliance and Pontiki will be
given full credit for that mitigating factor in the assessment of a civil
penalty.
History of Previous Violations·
At the hearing, MSHA's counsel introduced as Exhibit No. 2 a 53-page
computer printout which lists previous violations at all the mines controlled
by Mapco, Inc. (Finding No. 1, supra). I stated at the hearing that it has
been my practice to consider only the history of previous violations of the
individual mine in which a given violation is found to have occurred (Tr. 7).
MSHA's brief (pp. 3 and 24-25) argues that I am obligated to consider Mapco,
Inc.'s, total history of previous violations rather than the previous violations which have occurred only at Pontiki's No. 1 Mine where the violation
of section 75.403 here involved occurred. MSHA's argument is primarily
based on a claim that sec.tion 110( i) of the Act provides for consideration
to be given to"*** the operator's history of previous violations,"
rather than for consideration to be given to the history of previous violations which have occurred at a single mine. MSHA contends that a greater
deterrent against continued violations will be achieved if top management is
held responsible for all of its subsidiaries' history than will be achieved
if only a single mine is considered at a given time.
I do not have a closed mind on the subject. There may be cases in
which it would be beneficial to consider the controlling company's history
of previous violations rather than to consider only the previous violations
which have occurred at the mine under consideration for a specific violation. In each proceeding, a judge must use the evidence which the parties

387

have presented. If the evidence concerning the controlling company's previous violations is limited, there is no way for the judge to show how he
has considered a given respondent's history of previous violations.
In this proceeding, for example, Exhibit No. 2 indicates that Mapco,
Inc,, which controls Pontiki and four other coal companies, has a history
of previous violations totaling 2,089 violations. The fact that Mapco's
subsidiaries have violated various regulations on 2,089 occasions, by
itself, means nothing. That figure does not reveal whether Mapco' s viola·tions are greater or less than the violations committed by other control·ling companies of comparable size. Exhibit No. 2 does not indicate how
many tons of coal are produced in the nine mines which are controlled by
Mapco. Exhibit No, 2 does not reveal how many sections of each mine are
engaged in production. Exhibit No. 2 does not show how many production
shifts exist at each mine nor how many employees work at each mine,
The absence of statistical information prevents me from giving any
meaningful consideration to Mapco's previous violations as a whole. For
example, Exhibit No. 2 shows that Pontiki's No. 1 Mine has had 15 previous
violations of section 75,403 over a period of 3 years, whereas the Retiki
Mine of Webster Coal Company has had 14 previous violations of section
75.403 over a period of 5 years, and the Dotiki Mine of Webster Coal Company has had 11 previous violations of section 75.403 over a period of
6 years. The foregoing comparison would make it appear that Pontiki's
previous violations are more adverse than those of its affiliated company,
but I cannot make such a finding because I do not know how many sections
produce coal in either the Retiki Mine or the Dotiki Mine, If those mines
employ fewer miners and produce less coal than Pontiki's No. 1 Mine, their
record of 14 and 11 previous violations of section 75.403 would be more
significant and unfavorable than Pontiki's 15 previous violations of section 75.403.
In short, until MSHA is able to introduce data of a more meaningful
nature than those provided in Exhibit No, 2, there is no way for me to show
how I have actually considered the criterion of history of previous violations with respect to a given controlling company's total history of previous violations. Moreover, I believe that top management will be as much
deterred from allowing future violations to occur by a penalty assessed
specifically for a given mine's adverse history of previous violations as
it would be deterred by a penalty assessed for its overall adverse history
of previous violations, Management would recognize from having to pay a
civil penalty so determined that action taken by it to reduce or eliminate
future repetitious violations at all mines would be likely to reduce any
civil penalties that might result from any subsequent violations.
As to the history of previous violations at Pontiki's No. 1 Mine,
Exhibit No, 2 shows that there were two violations of section 75.403 in 1977,
12 in 1978, and one in 1979 by January 4, 1979. I find that 12 violations
of section 75.403 during a single year shows a very unfavorable history of
previous violations, Therefore, the penalty hereinafter assessed will be

388

increased by $500 under the criterion of history of previous violations.
That large a number of violations of section 75.403 tends to support the
inspector's belief that Pontiki's management was becoming complacent about
the need to maintain an adequate amount of rock dust to within 40 feet of
the working faces (Tr. 39).
Negligence
The preponderance of the evidence shows that there was a high degree of
negligence in respondent's violation of section 75.403. Management was producing coal at the rate of 190 shuttle cars per shift despite the fact that
a greater amount of time and effort than normal was being exerted in controlling the roof. The effort to maintain a high productivity from the
No. 5 Section, despite the roof-control problem, caused Pontiki's management to slight the need to exert as great an effort at cleaning and rock
dusting as was being utilized to control the roof. Management's failure to
keep the section clean and maintain an adequate amount of rock dust was the
result of a considerable amount of indifference to adherence with section
75.403. The criterion of negligence requires that a penalty of $2,000 be
assessed (Finding Nos. 5, 7, 1-0, and 12 through 15, supra).
Gravity
Inasmuch as Pontiki's No. 1 Mine liberates about 454,000 cubic feet of
methane in a 24-hour period (Finding No. 1, supra), the failure to maintain
an adequate amount of rock dust exposed the miners to a serious threat of
an explosion. At the time the inspector cited the violation of section
75.403, he found that no dangerous amount of methane was present. Nevertheless, there was a potential for an explosion because the roof-bolting machine
was being operated and respondent's shift foreman had just inspected the
No. 5 Section and had recognized that the section was badly in need of cleaning and had directed that cleaning be done as soon as possible. The section
foreman, however, had made no attempt to clean up or rock dust and no cleaning had been commenced up to the time that the inspector issued Order No.
706444. In such circumstances, the miners had been exposed to a potential
ignition for a considerable period of time and the lack of rock dust was
necessarily a serious violation. Therefore, I find that a penalty of $1,000
is required under the criterion of gravity (Finding No. 15, supra).
A total penalty of $3,500 will hereinafter be assessed based on my
findings above that $500 be attributed to Pontiki's history of previous
violations, that $2,000 be attributed to Pontiki's negligence and that
$1,000 be attributed to the gravity of the violation. The penalty would
have been larger than $3,500 if Pontiki had failed to demonstrate a good
faith effort to achieve rapid compliance. The penalty would have been
less than $3,500 if Pontiki were not a large operator and if the evidence
in this proceeding had shown that Pontiki's ability to continue in business
would be adversely affected by having to pay civil penalties.

389

Ultimate Findings and Conclusions
(1) Pontiki's application for review or notice of contest of Order
No. 706444 dated May 3, 1979, should be denied and Order No. 706444 should
be affirmed as having correctly cited a violation of section 75.403 and
having properly found that the violation was the result of unwarrantable
failure under section 104(d)(l) of the Act.
(2) Underlying Citation No. 706762 issued April 3, 1979, and Order
No. 706444 properly made the findings required by section 104(d)(l) of the
Act and were validly issued.
(3) MSHA's Proposal for Assessment of Civil Penalty filed in Docket
No. KENT 80-53 should be granted to the extent that it seeks assessment of
a civil penalty for the violation of section 75.403 alleged in Order No.
706444 and a civil penalty of $3,500.00 should be assessed for that
violation.
(4) The portion of MSHA's Proposal for Assessment of Civil Penalty
which seeks assessment of a civil penalty for a violation of section 75.403
with respect to Order No. 706444 should be severed from the remainder of
that Proposal and should be disposed of as provided for in paragraph 3
above. The remaining portion oj MSHA's Proposal for Assessment of Civil
Penalty in Docket No. KENT 80-53 which seeks assessment of a civil penalty
for the violation of section 75.313 alleged in Citation No. 706762 should
be scheduled for a hearing or should be decided on the basis of the record
already made in this proceeding, depending upon the requests which are
hereafter received from the parties to the proceeding in Docket No. KENT
80-53.
(5) Pontiki Coal Corporation is subject to the provisions of the Act
and to the regulations promulgated thereunder (Tr. 96).
WHEREFORE, it is ordered:
(A) Pontiki Coal Corporation's application for review or notice of
contest filed in Docket No. KENT 79-115-R is denied and Order No. 706444
issued May 3, 1979, is affirmed.
(B) MSHA's Proposal for Assessment of Civil Penalty filed in Docket
No. KENT 80-53 is severed from the remainder of the Proposal and is granted
to the extent specified in paragraph (3) above. Pontiki Coal Corporation
is ordered, within 30 days from the date of this decision, to pay a civil
penalty of $3,500.00 for the violation of section 75.403 cited in Order
No. 706444.

390

(C) MSHA's Proposal for Assessment of Civil Penalty, insofar as it
seeks assessment of a civil penalty for the violation of section 75.313
alleged in Citation No. 706762 will be disposed of as provided for in
paragraph (4) above.

~st?tf:T£fhr

Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

William H. Howe, Esq., and Timothy J. Parsons, Esq., Attorneys for
Pontiki Coal Corporation, Loomis, Owen, Fellman & Howe, 2020 K
Street, NW, Washington, DC 20006 (Certified Mail)
John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

391

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520..5: LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 1 2 19fl!'

Civil Penalty Proceeding

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

Docket No. HOPE 78-744-P
A.C. No. 46-03467-02070

Petitioner
v.

Meadow River No. 1 Mine
SEWELL COAL COMPANY,
Respondent
DECISION
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor, Department
of Labor, for Petitioner;
C. Lynch Christian III, Esq., Jackson, Kelly, Holt and
O'Farrell, Charleston, West Virginia, and Gary W. Callahan,
Esq., Lebanon, Virginia, for Respondent.

Before:

Judge Lasher

This proceeding arises under section 109 0-f the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970), hereinafter
the Act. 1/ Under section 30l(c)(3) of the Federal Mine Safety and Health
Act of 1977, '!:._/proceedings such as this which were pending at the time the
1977 Act took effect are to be continued before the Federal Mine Safety and
Health Review Commission.
STIPULATIONS
The parties entered the following stipulations:
1/

Section 109(a)Il) states, in part, 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 violation
of a mandatory health or safety standard may constitute a separate offense

* * *·"

Jj

83 Stat. 742, 30 U.S.C.

§

801 ~seq.

392

1. Notices of Violation 2 HSG (8-0004) issued February 12, 1978, and
1 HSG (8-0005) issued February 14, 1978, are the subjects of this proceeding
(Tr. 5). 3/
2.

The presiding judge has jurisdiction in this matter.

3. Sewell Coal Company, a subsidiary of the Pittston Company, is the
operator of the Meadow River No. 1 Mine located at Lookout, Fayette County,
·west Virginia (Tr. 5). The Meadow River No. 1 Mine was, at the time of the
issuance of the two notices, subject to the provisions of the Federal Coal
Mine Health and Safety Act of 1969, and the regulations promulgated thereunder (Tr. 5-6). The Meadow River No. 1 Mine is subject to the provisions
of the Act and the regulations promulgated thereunder (Tr. 6).

4.

Respondent is a large operator (Tr. 6). !±_/

5. At the time the notices of violation were issued, Respondent's
union employees, members of the United Mine Workers of America, were on
strike. This strike began on December 6, 1977, and continued until March 17,
1978 (Tr. 6).
6. The UMWA employees had been on strike for over 2 months prior to
the issuance of the notices of violation (Tr. 6).
7. Homer S. Grose was a duly authorized representative of the Secretary
at all times relevant to the issuance of Notic~s of Violation Nos. 2 HSG
and 1 HSG. True and correct copies of the notices of violation were served
on Respondent (Tr. 6).

8. At approximately 9:50 a.m. on February 13, 1978, Inspector Grose
issued Notice of Violation No. 2 HSG to Sewell for an alleged violation of
30 CFR § 75.1704. The condition or practice alleged was Respondent's
failure to maintain a designated intake escapeway to insure passage at all
times of any person~ including disabled persons. The alleged impediment to
3/ Notice No. 2 HSG (8-0004) alleges that Respondent violated 30 CFR
75.1704 by failing to maintain a designated intake escapeway to insure the
passage of any person at all times, because of water ranging from 0 to
16 inches in depth. Notice No. 1 HSG (8-0005), alleges that Sewell violated
30 CFR 75.200 because of the occurrence of fractured and loose roof in the
No. 1 section above the No. 1 entry roadway just inby the last open crosscut
and extending inby approximately 30 feet.
4/ At the time pertinent herein, Sewell's payroll was 203 underground
enployees (which figure includes supervisory personnel). During the strike
only 33 supervisory personnel worked (Tr. 85-86). Approximately 15 worked
on the day shift, 10 on the second shift, and 8 on the third shift. Other
personnel could not be hired because of the economic strike (Tr. 111-113,
124) which was in progress at the time.

~93

travel was a water accumulation from 0 to 16 inches in depth for about
40 feet in the designated escapeway (Tr. 6-7).
9. At approximately 9:30 a.m., on February 14, 1978, Inspector Grose
issued Notice of Violation No. 1 HSG to Respondent for an alleged violation
of 30 CFR § 75.200. The condition alleged was fractured and loose roof
in the No. 1 section above the No. 1 entry roadway just inby the last open
crosscut and extending in toward the face approximately 30 feet. The roof
was a shale material with loose rocks between the resin roof bolts, some of
which had allegedly fallen in this area (Tr. 7).
10. The conditions cited in Notices of Violation Nos. 1 HSG and
2 HSG did exist (Tr. 7).
11. Respondent demonstrated good faith in abating Notices of Violation
Nos. 1 HSG and 2 HSG and both notices were subsequently terminated (Tr. 7).
12. For the purposes of this proceeding, the Meadow River No. 1 Mine
has a moderate history of previous violations (Tr. 7).
Although not by stipulation, Respondent concedes that payment of penalties for the two alleged violations would not interfere with its ability
to continue in business (Tr. 48).
FINDINGS OF FACT
Sewell's Meadow River No. 1 Mine is a six-section coal mine entered by
two shafts and one slope (Tr. 26). Mining is performed in the Sewell seam
of coal and the Sewell Meadow River No. 1 Mine has approximately 25 miles
of entries in such seam (Tr. 83). The entries are approximately 20 feet
wide and 4-1/2 feet high (Tr. 24, 83), and are connected to adjacent entries
by crosscuts (Tr. 82-83; R-1) which provide ventilation for the entries (Tr.
82). The roof above the coal seam is of a glassy shale type which is subject to fracture (Tr. 53, 84). The floor of the mine is undulating (dips
up and down) and the mine itself is very "wet" in that it accumulates
500,000 gallons per day (Tr. 24, 84, 85).
Inspector Grose and his fellow inspectors were instructed to conduct
inspections of all the coal mines within the jurisdiction of their field
office for the purpose of finding violations and hazardous conditions so
that the operators would give "priority in eliminating these from the mines
as soon as the miners return to work" after the strike (Tr. 21, 22). ~_/
5/

Inspector Grose testified:
"During the strike period, the abatement process is more liberal. We
do not try to force management personnel to do manual labor and labor related
activities in the mines. We give them an extended period of time. In some
instances, if the original time as set expires before the work force returns,
there are extensions given extending the time 'til the workforce does

394

An accumulation of water on the floor of an escapeway Hforty feet long"
and "zero to 16 inches" deep led Inspector Grose to issue Notice No. 2 HSG
(8-0004) Tr. 24, 31). Inspector Grose admitted that this was not a "particularly serious" condition (Tr. 30) and that "***the mine deteriorates
a little more rapidly during work stoppages" (Tr. 34).
Slips and cracks in the mine roof, fallen rock, and rock which was ready
to fall led the inspector to issue Notice No. 1 HSG (8-0005) (Tr. 37). This
was a serious condition which could have caused a fatality or serious injury
(Tr. 37).
During the strike period (see Stipulation #5, supra), MSHA (MESA)
inspectors were instructed to be more liberal with respect to granting abatement time and to help the mine operator find hazardous conditions during the
strike since the operator has "fewer personnel and only management personnel"
employed (Tr. 21-23, 52-54, 56, 57). The inspectors were also instructed not
"to insist on management complying with" abating violations since this would
be an interference with labor and management and would force management to
perform manual labor (Tr. 21, 22, 57). Inspector Grose thought the strike
would be over by the time he set for abatement (Tr. 58).
During a strike, a mine deteriorates rapidly because it does not get
attention to minor problems since there are insufficient personnel to perform the repairs (Tr. 90, 92). The conditions cited in the two notices of
violation were the result of natural deterioration in the mine (Tr. 91-93,
119) and there were an insufficient number of personnel at the mine to
accomplish the elimination of such conditions during the strike (Tr. 91,
111-113, 120).
The mine was not sealed by Respondent during the strike because flooding
and massive roof falls would probably occur, equipment would deteriorate,
and a permit for reopening the mine might have taken a year because of
changing legal requirements (Tr. 525, 526).
During the strike no coal production was undertaken (Tr. 90). The
supervisory personnel who worked were occupied in "fixing up hazard conditions," such as rock dusting and pumping, and also timbering and ventilation
work (Tr. 90-91). There were not sufficient supervisory personnel available
during the strike to eliminate all the conditions which occurred in the mine
fn. 5 (continued)
return." Respondent was given 14 days to abate the two notices involved.
Abatement of both, however, was accomplished within 2 days. The two
notices were issued during MESA's first inspection of the mine during the
strike-after the strike had been in progress approximately 2 months (Tr.
36).

395

as a result of natural deterioration which might constitute violations (Tr.
85, 96, 90, 91,·93, 102). §.../
The supervisors conducted preshift examinations only of the areas
where they were assigned to work on a given day during the strike (Tr. 87,
106). Mine management followed the practice of correcting the most serious
conditions first (Tr. 110, 127).
DISCUSSION, ULTIMATE FINDINGS AND CONCLUSIONS
Petitioner, MSHA, maintains that its policy was not to force management
into performing manual labor during the strike. 7/ Yet, it did issue notices
of violation during the strike and in this proceeding seeks a penalty. 8/
Respondent concedes the existence of the violative conditions (see Stip~la
tion No. 10, supra), but contends it was impossible to prevent such violations during the strike because of insufficient personnel.
Impossibility of compliance became established in mine safety law as
an affirmative defense to charges of mine safety violations by the Interior
Department's Board of Mine Operations Appeals in its decision in Itmann Coal
Company, 4 IBMA 61 (1975). In that matter, the mine operator, as the Respondent here, in effect conceded the existence of the violative conditions (a
lack of various items of safety equipment) but argued that no violation
should have been found because the equipment required by the regulations was
not available. In Itmann, the Board affirmed its prior holding in Buffalo
Mining Company, 2 IBMA 226m, 80 I.D. 630 (19731, that "* * * Congress did
not intend that a section 104(b) notice be issued or a civil pepalty assessed
where compliance with a mandatory health or safety standard is impossible due
to unavailability of equipment, materials, or qualified technicians."
6/ I have found the following testimony of Respondent's Division Safety
Director to be persuasive:
"Q. In your opinion, Mr. Given, based on your experience with Sewell
for the thirteen years you've been employed there and your knowledge of the
Meadow River No. 1 Mine, do you believe the number of employees at the
Meadow River No. 1 Mine during the· strike were capable of eliminating all
the conditions which occurred in the mine as a result of natural deterioration which might constitute violations of the Act?
A. No, we did not have enough for that, I don't believe.
Q. Can you generally summarize for the Court why?
A. Well, the fact you have twenty-five miles of entry and crosscuts
to look after. You know. We didn't have a work force there, and the people
we were using weren't very experienced in doing these things. And it's just
physically impossible for a fellow to cover all these areas and take care of
every conceivable condition." (Tr. 91).
7/ To avoid interfering with labor-management relations, and presumably, to
avoid pressuring one of the parties involved in an economic strike to the
benefit of the other.
8/ The subject of safeguard notices--for which penalties are not sought--was
raised at the hearing but not subsequently pursued by either party (Tr. 58).

396

The burden of establishing that compliance with the safety standards
is impossible rests of course on the mine operator charged. Here, as the
proponent of the rule, Respondent clearly carried its burden and established
a prima facie case by its evidence that the mine was idled by an economic
strike, that the mine deteriorates rapidly when idle due to natural forces,
that the two violations charged occurred as a result of such natural deterioration, that the small complement of men (33 management personnel) available
was insufficient to correct conditions in such a large mine (25 miles of
entries and crosscuts), and that the realities of labor--management relations made it impossible to hire additional personnel to keep the mine violation--free during the prolonged period of its idleness.
Petitioner failed to rebut Respondent's evidence in those respects.
In contrast to the persuasive evidentiary presentation by Respondent, Petitioner failed to establish, even in a general way, how it would have been
possible for Respondent to either prevent or correct the various physical
problems occurring during the work stoppage. Petitioner's stated policy
of not forcing management personnel to perform manuql labor during a strike
seems to be in contradiction to its prosecution of this proceeding.
I conclude that Respondent's position is meritorious and that the two
notices of violation involved should be vacated.
ORDER
1. All proposed findings of fact and concl.usions of law proposed by
the parties which are inconsistent with the foregoing are rejected.
2. Notices of Violation 2 HSD (8-0004) issued February 12, 1978, and
1 HSG (8-0005) issued February 14, 1978, are VACATED.
: ~--""'

.

.

.- .,.,/~

/.,.

Y/:<~~£--~·
,0'.~,& ·/' tf',.
r'
r·//;::::
~I
••

./

Michae 1 A. Lasher, "Jr., Judge

Distribution:
Edward H. Fitch, Esq., .Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Gary W. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24266
(Certified Mail)
C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)

397

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

FEB 1 2 1980
)

CONROCK COMPANY,
Applicant,

)
)

CONTEST OF CITATION

)

DOCKET NOS. WEST 79-373-RM
WEST 79-374-RM
(CONSOLIDATED)

)

v.

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

)
)
)
)

CITATION NOS. 384009, 8/1/79
384010, 8/1/79

)

Respondent.
)
~~~~~~~~~~~~~~~~~~·)

MINE:

UPLAND PIT AND MILL

DECISION
APPEARANCES:
Scott J. Walcott, Esq., 3200 San Fernando Road, Los Angeles, California 90065,
for the Applicant.
Marshall P. Salzman, Esq., Office of Daniel W. Teehan, Regional Solicitor,
United States Department of Labor, San Francisco, California 94102,
for the Respondent.
Before:

Judge John J. Morris

Applicant, Conrock Company, seeks review of two citations alleging its workers
were exposed to excessive noise concentrations in violation of 30 CFR 56.5-50. !/

1/

The cited standard provides in part as follows:
56.5-50 Mandatory.
(a) No employee shall be permitted an exposure to
noise in excess of that specified in the table below. Noise level measurements shall be made using a sound level meter meeting specifications for
type 2 meters contained in American National Standards Institute (ANSI)
Standard Sl.4-1971, "General Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference and made a part hereof, or by
a dosimeter with similar accuracy. This publication may be obtained from
the American National Standards Institute, Inc., 1430 Broadway, New York,
New York 10018, or may be examined in any Metal and Nonmetal Mine Health
and Safety District or Subdistrict Office of the Mine Safety and Health
Administration.
Footnote 1_,/ Cont'u on Page 2

398

The citations were issued pursuant to Section 104(a) !.:__/ of the Federal Mine
Safety and Health Amendments Act of 1977 (30 U.S.C. 801 ~ ~.).
ISSUES
The issues are whether the standard is impermissibly vagu~ and ~hether
Conrock violated it.
Conrock contends the excessive noise levels must be measured by the noise
actually reaching the employee's ears.
contest is unenforceably vague.

Further, Conrock asserts the standard in

Finally, Conrock argues that MSHA failed to meet

its burden of proof in respect to Citation 384010.
The contentions of Conrock and MSHA's counter arguments require a review of
the uncontroverted evidence.

Footnote 1/ Cont'd
PERMISSIBLE NOISE EXPOSURES
Duration Per Day,
Sound Level dBA,
Hours of Exposure
Slow Response
8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
6
4
3
2 ..............................................................
1 1I2 . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
1/2 ............................•...............................
.l/4 or less ................................................•...
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92
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.110
1.15

No exposure shall exceed 1.15 dBA. Impact or impulsive noises shall not
exceed .140 dB, peak sound pressure level.
(b) When employees' exposure exceeds that listed in the above table,
feasible administrative or engineering controls shall be utilized. If
such controls fail to reduce exposure to within permissible levels,
personal protection equipment shall be provided and used to reduce sound
levels to within the levels of the table.

2/

30 u.s.c. 814

399

FINDINGS OF FACT
CITATION 384009
1.

The noise exposure to Conrock's truck driver, who was wearing ear plugs,

was 21.6 percent of permissible limit, or about 96 dBA (Tr 9-14, 26).
2.

A dosimeter was worn by the driver for 430 minutes; it measured an

average exposure of between 95 and 96 dBA (Tr 11-14).
3.

Engineering controls to reduce the noise levels include a barrier at the

firewall (Tr 21, 60).
4.

Holes in the floor could be plugged (Tr 21, 57).

5.

Most of the noise was coming from in front of the driver's feet (Tr 42-43).

6.

The cost of the controls would not exceed $200; companies selling

insulating material also make engineering recommendations (Tr 62).
7.

Controls on the truck, if implemented, would reduce the noise level to

within permissible limits.
8.

Conrock implemented engineering controls on its Euclide truck at its

Capistrano plant; these controls reduced the noise levels to within permissible
limits (Tr 73-74, R4, RS).
CITATION 384010
9.

A noise sampling was taken by the plant operator who is stationed near

one of the sizing screens and the crusher (Tr 22, 23).
10.

Most of the time the plant operator, who was wearing earplugs, was

outside of his metal 3 X 5 X 6 foot high metal shack; the uninsulated shack was
3 to 4 feet from the shaker screen (Tr 23, 26).
11.

The greatest amount of noise came from the shaker screen (Tr 24).

12.

Sampling for 485 minutes, an 8 hour shift, indicated a noise level at

165 percent of the permissible limit (Tr 24, 53).

400

13.

Engineering controls for the plant operator include installing a

barrier, insulating the shack, or moving it, (Tr 62-63).
14.

MSHA recommendations, if implemented, would reduce the nois~ levels

to within permissible limits at a cost of $200 to $300 (Tr 64).
DISCUSSION
For the reasons hereafter stated, I dismiss the contests filed herein.
Conrock's initial contention is that MSHA must measure the alleged violation
·by the noise actually reaching the worker's ears.

The thrust of Conrock's

argument seeks to place personal protective equipment, such as ear plugs, before
feasible administrative or engineering controls.
The plain wording of Section 56.5-50(b) is directly contrary to Conrock's
contention.

The section initially requires administrative or engineering controls.

If they do not reduce the noise levels, then personal protective equipment is
required.

The rationale for this approach appears to lie in the fact that workers

prefer not to use ear plugs.
properly.

In addition, the ear plugs are not always fitted

Further, ear plugs cannot eliminate all frequencies of noise (Tr 66-67).

Applicant's second contention attacks the vagueness of the standard in
regards to its requirement of "feasible administrative or engineering controls."
The test of vagueness is whether the standard is so indefinite that men of
common intelligence must necessarily guess at its meaning and differ as to its
application,

Allis-Chalmers

Corporation v. Occupational Safety and Health Review

Connnission 542 F2d 27 (7th Cir., 1976).
Applicant's reliance on Hilo Coast Processing Company v. Secretary of
Labor, MSHA DENV 79-50-M is misplaced.

Commission Judge Charles C. Moore, Jr.,

did not rule the standard invalid but he indicated MSHA failed to prove that the

401

recommended engineering controls were technically and economically feasible.
Further considering vagueness compare Brennan v. OSHRC ~ND Santa Fe Transport
Company 505 F2d 869, (10th Cir., 1974).
Applicant cites three Occupational Safety and Health Review Commission (OSHRC)
cases in support of its argument that "the vagueness issue has not been put to bed
by OSHRC."

I disagree, OSHRC has repeatedly ruled that the Occupational Safety and

Health Standard 'i/ relating to noise exposure was not vague, cf Secretary of Labor

)_/

The Occupational Noise Exposure Standard, 29 CFR 1910.95 reads in part as
follows:
(a) Protection against the effects of noise exposure shall be
provided when the sound levels exceed those shown in Table G-16
when measured on the A scale of a standard sound level meter at
slow response. When noise levels are determined by octave band
analysis, the equivalent A-weighted sound level may be determined
as follows:
TABLE G-16 PERMISSIBLE NOISE EXPOSURES!
Duration Per Day,
Hours of Exposure

Sound Level dBA,
Slow Response
90
92

8

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

6

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

4

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

95

3 ••. . •••. •. . . . . . . . •. •. . •. •. . . . . . •. •••. •. •••••••. . •••. . •. •• •.
2 ••• ••• • •• •••• ••• ••••••••• •• ••• . •••• •• •••••• ••••• ••••• •• •• ••
1 1/2 .........................................................
1 ...........................................................
1/2 ..........................................................
1/4 or less ..................................................

97
100
102
105
110
115

(1) When employees are subjected to sound exceeding those listed in
Table G-16, feasible administrative or engineering controls shall be utilized.
If such controls fail to reduce sound levels within the levels of Table G-16,
personal protective equipment shall be provided and used to reduce sound
levels within the levels of the table.
Exposure to impulsive or impact noise should not exceed 140 dB peak sound
pressure level.
(2) If the variations in noise level involve maxima at intervals of 1 second
or less, it is to be considered continuous.
(3) In all cases where the sound levels exceed the values shown herein, a
continuing, effective hearing conservation program shall be administered.

402

v. Boise Cascade Corporation, Composite, Docket No. 802 (April 1977); Secretary
of Labor v. Wheeling Pittsburg Steel Corporation, Docket No. 13286 (November 1977).
In this case MSHA established that engineering controls would reduce the
noise levels to within permissible limits.

Concerning the Euclide truck see the

facts in Paragraphs 3, 4, 5, 6, 7, 8, in this decision.

Concerning the plant

operator, see facts in Paragraphs 13 and 14.
MSHA's evidence shows that as an administrative control Conrock could rotate
its workers after four hours at the site.

I reject this proposal since the record

presents no foundation to establish the feasibility of this proposal.
Conrock's post trial brief points to the testimony of witness Readon to
establish a failure of MSHA's proof on feasibility.

I reject this view since

witnesses Drussel and Polk directly established economic and technical feasibility.
In determining the issues here, the entire record must be considered.
Applicant's final argument is that MSHA failed to prove the economic and
technical feasibility of its recommendations for the plant operator's shack.
Contrary to Conrock's argument MSHA's engineering recommendations at a cost of
$200 - $300 are unrebutted (Fact 13, 14).
CONCLUSIONS OF LAW
1.

Applicant's Euclide truck operator was exposed to excessive noise and

applicant violated 30 CFR 56.5-50; the contest of Citation 384009 ~hould be
dismissed (Facts 1 - 8).
2.

Applicant's plant operator was exposed to excessive noise and applicant

thereby violated 30 CFR 56.5-50; the contest of Citation 384010 shoud be
dismissed (Facts 9 - 14).

403

Based on the foregoing findings of fact and conclusions of law, I enter the
following:
• ORDER
The contests of Citations 384009 and 384010 are dismissed.

Judge
Distribution:
Scott J. Wilcott, Esq., 3200 San Fernando Road, Los Angeles, Californis 9001
Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Department of Labo:
11071 Federal Building, 450 Golden Gate Avenue, Box 36017, San Francisco,
California 94102

404

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

22041

Phone (703) 756-6236
f·tb 1 ~ 1980
Civil Penalty Proceedings

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

Docket No. LAKE 79-118
A/O No. 33-00939-03042
Docket No. LAKE 79-214
A/O No. 33-00939-03055
Docket No. LAKE 79-263
A/O No. 33-00939-03059
Docket No. LAKE 80-64
A/O No. 33-00939-03066
Powhatan No. 3 Mine

THE NORTH AMERICAN COAL CORP.,
Respondent

Docket No. LAKE 79-262
A/O No. 33-00938-03050
Docket No. LAKE 80-61
A/O No. 33-00938-03052
Powhatan No. 1 Mine
Docket No. LAKE 79-266
A/O No. 33-00937-03031
Docket No. LAKE 80-65
A/O-No. 33-00937-03034
Powhatan No. 5 Mine
QUARTO MINING COMPANY,
Respondent

Docket No. VINC 79-124-P
A/O No. 33-01157-03021
Docket No. LAKE 79-228
A/O No. 33-01157-03079
Docket No. LAKE 79-265
A/O No. 33-01157-03082
Docket No. LAKE 80-31
A/O No. 33-01157-03083
Docket No. LAKE 80-32
A/O No. 33-01157-03084
Powhatan No. 4 Mine
Docket No. LAKE 79-229
A/O No. 33-02624-03055
Docket No. LAKE 80-95
A/O No. 33-02624-03066
Docket No. LAKE 80-96
A/O No. 33-02624-03065
Powhatan No. 7 Mine

405

2

NACCO MINING COMPANY,
Respondent

Docket No. LAKE 79-230
A/O No. 33-01159-03059
Powhatan No. 6 Mine
DECISION

The issue in the above-captioned cases and the arguments of the
parties are identical to those involved in Secretary of Labor v.
Alabama By-Products Corp., Docket No. SE 79-110, et al. which I have
decided today. For the reasons set forth in the latter opinion, a
copy of which is attached, the citations in the instant cases are
vacated and the petitions are DISMISSED.

~c 9'-t~?.

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

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 E. Ninth Street, Cleveland,
OH 44199 (Certified Mail)
David R. Case, Esq., Thomas C. Means, Esq., Crowell & Moring, 1100
Connecticut Avenue, NW., Washington, D.C. 20036 (Certified Mail)

406

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

FEB 1 2 19%

Civil Penalty Proceedings

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

Docket No. SE 79-110
A/O No. 01-00347-03023

Petitioner

v.
Docket No. SE 79-82
A/O No. 01-00347-03021

ALABAMA BY-PRODUCTS CORPORATION,
Respondent
·

Docket No. SE 80-8
A/O No. 01-00347-03030
Segco No. 1 Mine
Docket No. SE 79-33
A/O No. 01-00515-03015
Docket No. SE 79-74
A/O No. 01-00515-03019
Docket No. SE 79-108
A/O No~ 01-00515-03020
Docket No. BARB 79-215-P
A/O No. 01-00515-03008
Mary Lee No. 1 Mine
Docket No. SE 79-123
A/O No. 01-00340-03024
Gorgas No. 7 Mine

DECISION
Docket No. SE 79-110 was originally assigned to me. The other listed
docket numbers were subsequently consolidated with SE 79-110 because of the
similar parties and issues. While all of the files do not contain identical
documents, Respondent's motion for summary decision and supporting papers,
together with MSHA's opposition and supporting affidavit, are applicable to
all of the consolidated cases. After the motion was filed and briefed, the

parties entered a stipulation resolving all factual disputes and submitted
the matter for decision on the stipulation and further briefing. By submitting the stipulation and further briefing based thereon, Respondent has
abandoned its motion for summary decision. This decision is therefore based
on the stipulation and arguments. Also, there is another sizable group of
cases which have been consolidated under the caption Secretary of Labor v.
North American Coal Corporation, et al., Docket Nos. LAKE 79-118, et al.,
which involve the identical issue although facts were not stipulated in
those cases.
The question before me is whether there is a valid and enforceable
respirable dust standard. On June 28, 1974, in Secretary of Labor v.
Olga Coal Company, Docket No. HOPE 79-113-P, I issued a decision in which
I held that "there is not now and never has been a valid enforceable
respirable dust program***" (Dec., p. 2). I had previously made a
similar ruling in MSHA v. B.B.W. Coal Company, Docket No. PIKE 76-149-P
on January 9, 1979-:----T"hose rulings were made without the benefit of briefing and I think it is necessary that I reexamine the matter at this time.
Respirable dust, is an extremely important part of both the 1969 and
1977 Mine Acts. Respirable coal mine dust causes coal miners pneumoconiosis
or black lung, and it has been estimated that 173,000 miners and 333,000 survivors are receiving black lung compensation from the Federal Government
(see statement of John A. Breslin contained in Bureau of Mines' Information
Circular 8753 published in 1973). It is because I consider it such an
important program that I have been disturbed by _the way the Bureau of Mines,
MESA, and MSHA have dealt with that program.
I first considered respirable dust in a decision issued on July 9,
1973, in Valley Camp Coal Company, Docket No. MORG 72-88-P. I was unsatisfied with the quality of the proof offered in the respirable dust violations and rejected the evidence as being unconvincing. Subsequently, the
Board of Mine Operations Appeals decided the Castle Valley Mining Company
case, 3 IBMA 10 (January 25, 1974), in which it held that a computer printout, standing alone, would establish a violation of the respirable dust
standard. I next considered respirable dust in Eastern Associated Coal
Corporation, Docket Nos. MORG 73-131-P et al. (December 16, 1974). In that
case, I heard experts from MESA's respirable dust laboratory in Pittsburgh,
as well as· the testimony of Dr. Corn, who had done extensive research in
connection with respirable dust. It was during the course of those hearings
that I learned that MESA had been completely ignoring the statutory definition of respirable dust since the inception of the program. Instead of
·attempting to modify its equipment or work out some conversion factor, MESA
chose to pretend that Congress had not defined respirable dust as only those
dust particles of 5 microns or less in diameter. The evidence clearly
established that MESA had been counting, as respirable coal mine dust,
particles not only in excess of 5 microns in diameter, but also in excess
of 10 microns in diameter. I am attaching as Appendix I excerpts from my
opinion in that case which describe the dust-collecting instruments and the
procedure at the Pittsburgh laboratory.

408

The Interior Department's Board of Mine Operations Appeals eventually
ruled that the respirable dust procedures were invalid because MSHA had
collected, and counted as respirable coal mine dust, particles which did not
meet the statutory definition of respirable dust. Eastern Associated Coal
Corporation, 7 IBMA 14 (1976), and 7 IBMA 133 (1976). Again, instead of
attempting to modify its equipment, MESA sought, and obtained an order
from the Secretary of the Interior staying the effect of the decision of
the Board of Mine Operations Appeals. Such an appeal to the Secretary was
not provided for in the published rules of the Department and, in my opinion, would not have survived a court test, but the stay was eventually dissolved and the Board's opinion became final.
The golden opportunity for the enforcement branch came on November 9,
1977, when Congress eliminated the statutory definition of respirable dust
in the old Act and amended section 202(e) of the Act to read: "References
to concentrations of respirable dust in this title mean the average concentration of respirable dust measured with a device approved by the Secretary
and the Secretary of Health, Education and Welfare." While this is not a
definition of respirable dust, it does appear to give the Secretary of Labor
and the Secretary of Health, Education and Welfare the opportunity to establish a definition of respirable dust based on the size and type of dust
which certain equipment collects. The Solicitor has taken the position that
because section 202(e) of the Act became effective before the other sections
of the Act, the definition of "Secretary" contained in the 1977 Act as the
Secretary of Labor was not effective and that therefore, "Secretary" in section 202 means the Secretary of the Interior. The argument goes on that
since the Secretary of the Interior and the Secretary of Health, Education
and Welfare approved certain devices for the collection of respirable dust
back in the 1970, Congress intended to ratify that 7-year old agreement and
define as respirable dust anything collected by the MRE or the personal
sampling device. This is obviously a contrived piece of backfilling because
at no time has MSHA or MESA or anyone else contended that the oversized
particles collected by both of these pieces of equipment was respirable dust.
To do so would be to contravene the sworn testimony of the experts in the
field and would be despite the "Report to the Senate Committee on Labor and
Public Welfare", issued December 1975 and the Report of W. G. Courtney,
research supervisor, dust control and life support group, dated November 29,
1974. The latter contains the following statements.

*

*

*

*

*

*

*

3. Sampler precision. MESA enforces the dust standard
by stipulating that (1) the company use approved personal samplers and (2) the company-obtained 10-shift average for the
dust level be less than 2.lmg/m3.
Using data obtained by MESA personnel using approved personal
samplers, we have established that the approved samplers have
a precision of only 30 pct (standard deviation) when routinely used in the field. Thus, if 100 MESA inspectors went

409

into the field to measure with approved dust samplers a dust
cloud .known to have a concentration of 2.0 mg/m3 (MRE equivalent), 68 of their measurements would be between 1.4 and
2.6 mg/m 3 and 32 of the measurements would be outside this
range.
Assuming that the precision of operator samples is as good as
the precision of MESA inspector samples (a dubious assumption), the operator 10-shift average must be greater than
2.36 mg/m 3 to be 95 pct confident that the true average concentration. is actually above 2.0 mg/m3. More important, a
10-shift average of less than 1.64 mg/m3 is required to
assure that the worker is not being exposed to hazardous dust
levels as established by law. With the present limited precision of approved personal dust samplers in the field, 129
shifts must be sampled and averaged to reduce the width of
the uncertainty to _2:. 0.1 mg/m3.

*

*

*

*

*

*

*

5. Sampler flowrate. However, the MESA 0.1 mg/m3 standard for respirable quartz dust does not match any known medical standard. MESA-coal requires that the approved personal
sampler be operated at 2.0 ~/min when used for enforcement
purposes in coal mines, while the semi-official ACGIH recommendation of 0.1 mg/m3 for the respirable quartz dust is
based on a sampler flowrate of 1.7 ~/min. Our field tests
have indicated that similar masses of respirable dust are
obtained when the approved personal sampler is operating at
1.7 or 2.0 ~/min. Therefore, a quartz dust level of only
0.085 mg/m3 when sampled at 2.0 f.,,/min should be 3ermitted
in order to match the ACGIH standard of 0.1 mg/m when sam~
pled at 1.7 .£-/min. The percentage of coal miners being
subjected to excessive amounts of respirable quartz dust thus
is even higher than 20 pct.

*

*

*

*

*

*

*

We conducted a detailed comparison of company-obtained dust
levels with MESA-obtained dust levels for the same sections.
Results indicated that, on the average, MESA dust levels are
about 30 pct higher than operator dust levels. This poor comparison casts grave doubts about the veracity of operator data
and thus the entire MESA enforcement program.

*

*

*

*

*

*

In summary, the MESA enforcement program to ensure that coal
mine personnel are working in a healthful dust-free environment involves seven major features. We have shown that, for

410

*

each of these features, the MESA procedure is unsatisfactory.
As a result· of this inadequate enforcement program, our coal
mine personnel are being subjected to flagrantly hazardous
environments, despite public reports to the contrary.
In view of these comments, I cannot believe Congress intended to
perpetuate the discr;dited program. It intended that the Secretary of
Labor and the Secretary of Health, Education and Welfare come up with a
new definition. They have not done so.
But even if it could be said that it was the Secretary of the Interior
and the Secretary of Health, Education and Welfare that could have established a new respirable dust definition, the fact is that such a new definition has not been established. To this day, 30 CFR 75.2(k) states
"'Respirable dust' means only dust particulates 5 microns or less in size."
It is axiomatic that an agency binds itself by its own regulation even
though the Act of Congress would allow a different result. Vitarelli v.
Seaton, 359 U.S. 535 (1959); Accardi v. Shaugnessy, 347 U.S. 260 (1945);
Service v. Dulles, 354 U.S. 363 (1957); Pacific Molasses Company v. Federal Trade Commission, 356 F.2d 386, 389 (5th Cir. 1966). Under these-authorities, the definition of respirable dust is still particles
(particulates) of 5 microns or less in diameter. Under that standard, the
program cannot be enforced using the type of collection equipment which
MSHA currently uses. */
In my view, MSHA has two choices in order to institute an effective and
enforceable respirable dust program. One, it can either develop equipment
or modify equipment so as to collect and weigh only particles 5 microns or
less in diameter or two, it can amend its regulations so as to rescind
the definition contained in 30 CFR 75.2(k) and have the Secretary of Labor
and the Secretary of Health, Education and Welfare agree on a new definition
for and a device for the measurement of respirable dust.
In view of the importance of any early resolution of this matter, I
urge the Commission to review this case on its own motion under 29 CFR
2700.71 and set an accelerated briefing schedule.
Judgment is for Respondent and the citations are vacated.

CJ~f .?77~ i.

Charles C. Moore, Jr.
Administrative Law Judge

*/ I realize this paragraph is contrary to some of my previous rulings
regarding respirable dust, but I now believe that the 5-micron definition
is still in effect.

411

Distribution:
Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor,
1929 9th Avenue, South, Birmingham, Alabama 35202 (Certified Mail)

•

J. Fred McDuff Esq., Curtis W. Jones, Esq., Alabama By-Products
Corporation, P.O. Box 10246, Birmingham, Alabama 35202 (Certified Mail)

412

APPENDIX I
EXCERPTS FROM JUDGE MOORE'S DECISION IN
EASTERN ASSOCIATED COAL CORPORATION
DOCKET NOS. MORG 73-131-P et al (Dec. 16, 1974)
With reference to these 22 respirable dust violations, (footnote
omitted) in Castle Valley Mining Company, 3 IBMA 10 (January 25, 1974)
the Board of Mine Operations Appeals decided that the computer printout
designated as a Notice of Noncompliance creates prima f acie proof of the
facts asserted therein regarding the respirable dust content of tested
samples. In the absence of any rebutting evidence the printout's introduction into evidence may establish the violation. MESA relied almost
exclusively on Castle Valley in its presentation of the instant case.
In the Castle Valley case, however, there were a number of other
holdings by the Board that bear on the outcome of the instant decision.
In that case there had been no evidence, except for that contained in
various circulars of which the Board of Mine Operations Appeals took
official notice, of the testing procedures employed by MESA's testing
laboratory in Pittsburgh, Pennsylvania. The Board took official notice
also that the techniques employed by MESA in respirable dust testing
"are based upon scientific principles generally recognized in the
scientific community." But, as pointed out by Respondent, the Board
relied on facts "officially noticed" without giving the parties an
opportunity to rebut such facts as required by the Administrative Procedure
Act. Inasmuch as the Respondent in that case did not appear at the
hearing before the Board, however, the Board may have reasoned

413

that Respondent was in default and thus not entitled to the opportunity to rebut officially noticed evidence. In any event, Respondent Eastern Associated Coal Corporation is challenging the
scientific validity of NESA's testing procedures in the instant
case, and its right to do so was specifically recognized by the
Board on page 14 of its Castle Valley decision where it stated
"of course, either the operator or MESA may question the reliability of the system at any stage."
Other statements about notices of noncompliance made by the
Board in Castle Valley which bear on the decision in the instant
case are:
[at page 19] All other circumstances of the making of
such writing or record, including lack of personal knowledge by the enterant or maker, may be shown to affect
its weight, but the circumstances shall not affect its
admissibility.
[at page 21] This section does not make a government
document received in evidence conclusive, irrefutable,
or immutable. If such papers do not speak the truth,
the defense can prove the untruth of the document.
[at page 22] Full discovery procedureg were available
to Castle Valley had they had any reason to question the
reliability of the information recorded in the Notice
of Noncompliance.
Respondent in this case has taken advantage of the discovery procedures provided by our rules and has attempted to prove the unreliability of the testing procedure. Although it has not actually
demonstrated the untruth of any particular Notice of Noncompliance,
Respondent has made such a showing that I cannot simply rely on
Castle Valley and rule that the Notices of Noncompliance in evidence in this case establish the fact that Respondent has violated
the respirable dust standard.
Regarding respirable dust, its definition, and measurement,
we were indeed fortunate to have as witnesses such e~inent experts
as Dr. Morton Corn who has studied the subject for many years,
Mr. Murray Jacobson who has also been involved in the respirable
dust program for many years and who in fact set up the testing
program in issue in this case, and Hr. Paul Parobeck who is currently in charge of the HESA respirable dust laboratory in
Pittsburgh.

414

Respirable dust does not consist of coal dust exclusively.
It is coal mine dust which would include fine particles of co~l
as well as any. other fine particles of rock or other dust that
may be found in a coal mine. When a miner breathes the dust contained in the atmosphere of a coal mine, a certain portion of
that dust is filtered out in the nose, trachea and bronchial areas
of the respiration system anJ another portion is deposited in the
lungs or pulmonary compartment. Years of study have shown that
it is the larger particles that are filtered out or deposited on
surfaces of the respiratory system before reaching the lungs. It
is only those small particles that pass through the filtering
system and are deposited in the lungs which will lead to the
disease known as coal miner's pneumoconiosis and which are accordingly called respirable dust.
Some of the testimony concerning respirabl~ dust ref erred to
a Bureau of Mines information circular dated February, 1971, entitled Sampling and Evaluating Respirable Coal Mine Dust bearing
the number IC8503. .On page three of that document, there appears
a graph which plots the diameter and den.sity of the particles of
coal mine dust against the percentage of penetration or deposition
of such dust in the lungs, in a.personal sampler device and in an
MRE instrument. 1/ While it is not exactly clear from the graph
itself, the solid line indicates the manner -in which various sizes
of dust are deposited in the lungs, the dashed line designated
11
AEC 11 , (a development of the Atomic Energy Commission,) indicates
the same information with respect to deposition in the personal
respirable dust sampler, developed by the Bureau of Hines and the
line consisting of both dashes and dots and designated "11RE" indicates the amount of dust deposited in an HRE Isleworth Gravometric
Dust Sampler, which is referred to as the l-1RE instrument. So far
as the two instruments are concerned, deposition as depicted by
the graph, indicates that part of the coal mine dust which is
deposited in the section of the instrument which is designed to
be equivalent to the lungs, i.e. the filter. Both instruments
contain areas which are designed to eliminate dust that would
ordinarily be deposited in the nose, trachea or bronchial areas
of the human respiration system. The two instruments do this
·filtering out ~f the larger non-respirable particles by taking

21

A copy of the referenced graph is designated Figure I.

415

advantage of the fact that if two spherical particles composed of
the same sub.stance are allowed to fall in an atmosphere, the larger
particle will fall faster. This is because, as the size of spher~
ical particles increase the cross-sectional diameter and therefore
the air resistance is not increased to the same extent as the
volume, (thus the mass of the particle) increases. In moving
air, therefore, the larger particle will fall out sooner than the
smaller particle. In the HRE instrument the air flow rate is
such that the large particles fall out along the horizontal elutriator and only the smaller particles are deposited upon the
filter which is later weighed. The air flow rate in this instrument is 2.5 liters per minute. It is obvious, that if the air
flow in this instrument were increased, the larger particles would
be deposited upon the filter whereas if it were decreased, particles
normally reaching the filter might be deposited in the elutriator.
The personal sampler works on the same principle except that
a cyclonic system is used to cause increased acceleration for the
purpose of driving larger (i.e. heavier) particles to the outside
of the circling atmosphere. The personal sampler must operate
with an air flow of 2 liters per minute, and it is equally obvious
that in this system an ir.c:::-ease in the air flm·:- i:lill increase. the
G loads and thus cause the particles which might ordinarily ~each
the filter to drop out earlier, whereas too low an air flow would
cause such larger, non-respirable particles to reach the filter.
Any variation in the air flow in the two instruments therefore
has the opposite effect. In one, increased air flow would cause
an error of too small a particle being deposited on the filter
whereas the same increased air flow in the other instrument would
cause too large a particle to be deposited on the filter. The
proper rate of air flow is thus extremely critical to both instru~
ments.
Assuming both instruments are properly adjusted, the graph
on page 3 of Information Circular 8503, [Figure I herein] shows
that neither instrument collects on its filter, dust exactly corresponding to that collected by the lungs. The graph indicates
that the NRE instrument will collect particles up to 7.1 microns
in diameter whereas the person~l sarepler will collect particles
up to 10 microns in diaIT.eter. While the graph is not exactly
clear as to the pulmonary deposition, it appears to indicate deposition of particles up to somewhere between slightly over 6 microns
and 7 IT..i.crons in the lungs. There are other significant differences in the graphs. For example, both the personal sampler and
the MRE instrument collecc bet~·;een 90 and 100 percent oi the coal
mine dust 2 microns in diameter whereas the lungs collect only

416

.
c eo
~

Z CP
0 a.
-1-Z• 60
<(0

e:::-

.

1-t:

wUl 40
z~

WUJ

,,
""·\AAEC
\

<\ '~BMRcLFirst stage
J penetrcrion

" .
\.\

\

O..o

~ 20

Pulmonary
deposition

0

2
4
6
8
IO
DIAMETER UNIT DENSITY, SPHERE, microns

FIGURE

1. ·Comparison of Respirable Size Criteria
With Pulmonary Deposition Curve.,

FIGURE I

417

12

somewhere between 70 and 75 percent of that size particle. The
lungs collect only 54 percent of the p~rticles that are a half
micron in diameter whereas both instruments collect almost 100
percent of that size of particle. But it must be assumed that
the Congress knew of the collection curves involved when it passed
the Act and defined respirable dust as those particles of coal
mine dust 5 microns or less in diamete,r. And, in the area between
5 micron particles and 2 micron particles the personal sampler
curve is very close to the pulmonary curve. While the personal
sampler does collect particles up to 10 microns in size, it collects
a very small percentage of particles with a diameter in excess of
7 microns. The fact remains, however, that the instruments do
collect particles larger than the statutory definition of respirable
dust. 2._/
From the aforementioned distribution curve, it appears that
both the lungs and the personal sampler collect slightly more
than 20 percent of the particles that are 5 microns in diameter.
The personal sampler collects almost no particles that are 10
microns in diameter, and from observing the curve it would appear
that the personal saopler collects approximately 10 percent of
those particles between 5 microns in diameter and 10 microns in
diameter. The fact that the personal sampler collects 10 percent
of the dust that is larger than the statutory definition of respirable dust, however, does not mean that 10 percent of the dust
collected by the sampler is too large to be considered respirable
dust. It means that whatever quantity of that size particles is
contained in the mine atmosphere, the personal sampler will collect
10 percent of that total quantity on its filter.

2._/

The fact that in Section 202(e) of the Act it states "references
to concentrations of respirable dust in this title means the av~rage
concentration of respirable dust if measured with an HRE instrument
or such equivalent concentration as measured with another device
approved by the Secretary of Health, Education and Welfare" does
not mean that anything measured by an MRE instrument or another
equivalent device would be respirable dust. While concentrations
of such dust are to be measured in such instru.~ents, there is no
equivocation or uncertainty about the proscriptions of Section 318(k)
which states in no uncertain terms '"respirable dust' means only
dust particles 5 microns or less in size ••• " (Undersccring supplied)

418

While there was no testimony on the point, it would seem
reasonable that a slight increase in the air flow of the personal
sampler would tend to prevent the larger particles of dust in
excess of 5 microns in diameter from being deposited upon the
filter. I must assume, however, that if such a simple solution
would work, it would have been undertaken and that, therefore,
any increase of a:i.r flow would affect the accuracy of the device
in collecting the smaller particles of respirable dust. Also, it
may be that rather than trying to approximate the human respiration system, the technicians should seek to devise an instrument
which will measure and weigh only particles of dust 5 microns or
less in diameter, but such a determination is not within the
province of this hearing. We deal here with the devices as they
exist, not as they might be.
The dust sampling procedure established by the Bureau of
Mines has been described in Info:::mation Circulars 8484, 8520, and
8503, as well as in other publications of the Bureau of }fines and
MESA. The testimony in this case agrees with the descriptions
referred to and will only be explained herein in general terms.
In general, the mine operator purchases cassettes for the purpose
of measuring respirable dust from a manufacturer who has its cas..,.
settes and the empty filter weight data checlced by the Bureau of
Mines on a routine basis. The cassette has a serial number and a
mine data card accompanying it has the same number. After the
test has been run in the personal sampler the cassette and mine
data card, filled out so far as required, are forwarded to the
Pittsburgh testing laboratory.
The Pittsburgh testing laboratory is maintained under controlled temperature and humidity and at a pressure slightly higher
than the surrounding areas so that there will be no dust d:::-awn
into the laboratory. The cassettes received from the mine operator are opened in the laboratory, and the mine data card and
capsule containing the filter are placed on trays and the numbers
on the card and capsule are checked. They are then desiccated
i.e. dried, to remove any moisture that might otherwise affect
the weight, and moved to an electronic balance where devices are
placed to nullify any electrostatic effect that might distort the
actual weight of the filter. The filter is weighed on the electronic balance and an operator notes the weight and writes it
down on the mine data card. At that point the te::::hnician performing the weighing operation makes a mental calculation to detern::ine
if the weight gain, that is the difference between the :-ecordeci
empty weight of the filter and the weight of the filter with the
dust particles deposited thereon, is greater than 6 ~illig:::-ams.

419

If it is, the sample is put aside for testing for oversize particles, but if there is a weight gain of 6 milligrams or less, the
sample is discarded and destroyed. No record. is kept on the mine
card or anywhere else as to which of a number of technicians made
the actual weighing on any particular sample. After the weighing,
the results are punched out on a keypunch teletype system by one
operator and then a different person keypunches the same data
again. The system is such that if the two operators do not punch
out exactly the same data, an automatic notification is given so
that the operators can check to see if one or the other made an
error in transcribing the information from the mine data card.
The data punched into the system, goes directly to the computer
in Denver, Colorado which, at a later date, determines if any 10
consecutive valid samples comply or do not comply with the standard
in effect.
Throughout this procedure, at.several places, the mine data
card and filter identification numbers are checked. But there
was at the time of the violations involved in this case, no double
check of tqe visual weight display observed by the person operating
the balance. At a later time, subsequent to Mr. Parobeck 1 s deposition (Respondent's Exhibit 14) but prior to the hearing, a spot
check system was instituted whereby a certain number of these
weighings were later duplicated by a different operator on a ran.,...
dom basis to see if a discrepancy had occurred.
The testimony indicated that the decision to check filters
showing a weight gain gr2ater than 6 milligrams was an arbitrary
decision not based on any particular studies. With respect to
those capsules, showing the 6 milligram weight gain, first they
are examined to see if oversized particles appear visually ·with.,..
out the aid of a microscope. It such particles appear the sample
is voided. If they do not appear, however, the filter is examined
under a microscope with various sections of the filter designated
as fields. It is not stated in the testimony the exact size of a
field, but 10 of these fields are exa..~ined and the sample is voided
if these 10 fields each show three or more particles that are in
excess of 10 microns in size. Mr. Parobeck's testimony made it
clear that if nine of these fields all show more than 3 particles
in excess of 10 microns but the 10th field did not show such particles, the sample would not be voided. It is thus fairly clear
that in addition to the particles over 5 microns in diameter,
particles in excess of 10 microns in diameter and thus also not
respirable are counted against a Respondent whether the sample

420

weight gain is more than 6 milligrams or less than 6 milligrams
since no tes·t is taken regarding the weight gains of less than 6
milligrams. ]_/
In the Castle Valley case, supra, the Board of Mine Operations
Appeals stated that a notice of non-compliance which is a computer
print-out from the Denver computer, is prima facie evidence of a
violation which can be rebutted. The Board indicated that in
view of the discovery procedures available to a Respondent, he.
could challenge any notice of non-compliance that might be issued.
As testimony has indicated in this case, however, discovery techniques will help a Respondent very little in determining whether
or not his sample was actually tested properly. It is clear that
he cannot discover who made the actual weighing, he cannot test
the sample prior to sending it in because it would then be voided
for tampering, and he.cannot send in experts to test his sample
after it has shown a greater than 3 milligrams result. There is
in effect absolutely nothing a Respondent can do to defend itself
if the computer print-out shows that it is in violation of the
respirable dust standard.

421

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

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

Civil Penalty Proceedings
Docket No. SE 79-110
A/O No. 01-00347-03023

Petitioner

v.
Docket No. SE 79-82
A/O No. 01-00347-03021

ALABAMA BY-PRODUCTS CORPORATION,
Respondent

Docket No. SE 80-8
A/O No. 01-00347-03030
Segco No. 1 Mine
Docket No. SE 79-33
A/O No. 01-00515-03015
Docket No. SE 79-74
A/O No. 01-00515-03019
Docket No. SE 79-108
A/O No. 01-00515-03020
Docket No. BARB 79-215-P
A/O No. 01-00515-03008
Mary Lee No. 1 Mine
Docket No. SE 79-123
A/O No. 01-00340-03024
Gorgas No. 7 Mine
DECISION
Docket No. SE 79-110 was originally assigned to me. The other listed
docket numbers were subsequently consolidated with SE 79-110 because of the
similar parties and issues. While all of the files do not contain identical
documents, Respondent's motion for summary decision and supporting papers,
together with MSHA's opposition and supporting affidavit, are applicable to
all of the consolidated cases. After the motion was filed and briefed, the

422

parties entered a stipulation resolving all factual disputes and submitted
the matter for de.cision on the stipulation and further briefing. By submitting the stipulation and further briefing based thereon, Respondent has
abandoned its motion for summary decision. This decision is therefore based
on the stipulation and arguments. Also, there is another sizable group of
cases which have been consolidated under the caption Secretary of Labor v.
North American Coal Corporation, et al,, Docket Nos. LAKE 79-118, et al.,
which involve the identical issue although facts were not stipulated in
those cases.
The question before me is whether there is a valid and enforceable
respirable dust standard. On June 28, 1974, in Secretary of Labor v.
Olga Coal Company, Docket No. HOPE 79-113-P, I issued a decision in which
I held that "there is not now and never has been a valid enforceable
respirable dust program***" (Dec., p. 2). I had previously made a
similar ruling in MSHA v. B.B.W. Coal Company, Docket No. PIKE 76-149-P
on January 9, 1979-:----Those rulings were made without the benefit of briefing and I think it is necessary that I reexamine the matter at this time.
Respirable dust, is an extremely important part of both the 1969 and
1977 Mine Acts. Respirable coal mine dust causes coal miners pneumoconiosis
or black lung, and it has been estimated that 173,000 miners and 333,000 survivors are receiving black lung compensation from the Federal Government
(see statement of John A. Breslin contained in Bureau of Mines' Information
Circular 8753 published in 1973). It is because I consider it such an
important program that I have been disturbed by the way the Bureau of Mines,
MESA, and MSHA have dealt with that program.
I first considered respirable dust in a decision issued on July 9,
1973, in Valley Camp Coal Company, Docket No. MORG 72-88-P. I was unsatisfied with the quality of the proof offered in the respirable dust violations and rejected the evidence as being unconvincing. Subsequently, the
Board of Mine Operations Appeals decided the Castle Valley Mining Company
case, 3 IBMA 10 (January 25, 1974), in which it held that a computer printout, standing alone, would establish a violation of the respirable dust
standard. I next considered respirable dust in Eastern Associated Coal
Corporation, Docket Nos. MORG 73-131-P et al. (December 16, 1974). In that
case, I heard experts from MESA's respirable dust laboratory in Pittsburgh,
as well as the testimony of Dr. Corn, who had done extensive research in
connection with respirable dust. It was during the course of those hearings
that I learned that MESA had been completely ignoring the statutory definition of respirable dust since the inception of the program. Instead of
·attempting to modify its equipment or work out some conversion factor, MESA
chose to pretend that Congress had not defined respirable dust as only those
dust particles of 5 microns or less in diameter. The evidence clearly
established that MESA had been counting, as respirable coal mine dust,
particles not only in excess of 5 microns in diameter, but also in excess
of 10 microns in diameter. I am attaching as Appendix I excerpts from my
opinion in that case which describe the dust-collecting instruments and the
procedure at the Pittsburgh laboratory.

423

The Interior Department's Board of Mine Operations Appeals eventually
ruled that the re.spirable dust procedures were invalid because MSHA had
collected, and counted as respirable coal mine dust, particles which did not
meet the statutory definition of respirable dust. Eastern Associated Coal
Corporation, 7 IBMA 14 (1976), and 7 IBMA 133 (1976). Again, instead of
attempting to modify its equipment, MESA sought, and obtained an order
from the Secretary of the Interior staying the effect of the decision of
the Board of Mine Operations Appeals. Such an appeal to the Secretary was
not provided for in the published rules of the Department and, in my opinion, would not have survived a court test, but the stay was eventually dis.solved and the Board's opinion became final.
The golden opportunity for the enforcement branch came on November 9,
1977, when Congress eliminated the statutory definition of respirable dust
in the old Act and amended section 202(e) of the Act to read: "References
to concentrations of respirable dust in this title mean the average concentration of respirable dust measured with a device approved by the Secretary
and the Secretary of Health, Education and Welfare." While this is not a
definition of respirable dust, it does appear to give the Secretary of Labor
and the Secretary of Health, Education and Welfare the opportunity to establish a definition of respirable dust based on the size and type of dust
which certain equipment colleyts. The Solicitor has taken the position that
because section 202(e) of the Act became effective before the other sections
of the Act, .the definition of "Secretary" contained in the 1977 Act as the
Secretary of Labor was not effective and that therefore, "Secretary" in section 202 means the Secretary of the Interior. The argument goes on that
since the Secretary of the Interior and the Secretary of Health, Education
and Welfare approved certain devices for the collection of respirable dust
back in the 1970, Congress intended to ratify that 7-year old agreement and
define as respirable dust anything collected by the MRE or the personal
sampling device. This is obviously a contrived piece of backfilling because
at no time has MSHA or MESA or anyone else contended that the oversized
particles collected by both of these pieces of equipment was respirable dust.
To do so would be to contravene the sworn testimony of the experts in the
field and would be despite the "Report to the Senate Committee on Labor and
Public Welfare", issued December 1975 and the Report of W. G. Courtney,
research supervisor, dust control and life support group, dated November 29,
1974. The latter contains the following statements.

*

*

*

*

*

*

*

3. Sampler precision. MESA enforces the dust standard
by stipulating that (1) the company use approved personal samplers and (2) the company-obtained 10-shift average for the
dust level be less than 2.lmg/m 3 •
Using data obtained by MESA personnel using approved personal
samplers, we have established that the approved samplers have
a precision of only 30 pct (standard deviation) when routinely used in the field. Thus, if 100 MESA inspectors went

424

into the field to measure with approved dust samplers a dust
cloud known to have a concentration of 2.0 mg/m3 (MRE equivalent), 68 of their measurements would be between 1.4 and
2.6 mg/m 3 and 32 of the measurements would be outside this
range.
Assuming that the precillion of operator samples is as good as
the precision of MESA inspector samples (a dubious assumption), the operator 10-shift average must be greater than
2.36 mg/m 3 to be 95 pct confident that the true average concentration is actually above 2.0 mg/m3. More important, a
10-shift average of less than 1.64 mg/m3 is required to
assure that the worker is not being exposed to hazardous dust
levels as established by law. With the present limited precision of approved personal dust samplers in the field, 129
shifts must be sampled and averaged to reduce the width of
the uncertainty to_:: 0.1 mg/m3.

*

*

*

*

*

*

*

5. Sampler flowrate. However, the MESA 0.1 mg/m 3 standard for respirable quartz dust does not match any known medical standard. MESA-coal requires that the approved personal
sampler be operated at 2.0 ~/min when used for enforcement
purposes in coal mines, while the semi-official ACGIH recommendation of 0.1 mg/m3 for the respirable quartz dust is
based on a sampler flowrate of 1. 7 ~/min. Our field tests
have indicated that similar masses of respirable dust are
obtained when the approved personal sampler is operating at
1.7 or 2.0 e/min. Therefore, a quartz dust .level of only
0.085 mg/m3 when sampled at 2.0 r.,/min should be ~ermitted
in order to match the ACGIH standard of 0.1 mg/m when sampled at 1.7 .£-/min. The percentage of coal miners being
subjected to excessive amounts of respirable quartz dust thus
is even higher than 20 pct.

*

*

*

*

*

*

*

We conducted a detailed comparison of company-obtained dust
levels with MESA-obtained dust levels for the same sections.
Results indicated that, on the average, MESA dust levels are
about 30 pct higher than operator dust levels. This poor comparison casts grave doubts about the veracity of operator data
and thus the entire MESA enforcement program.

*

*

*

*

*

*

In summary, the MESA enforcement program to ensure that coal
mine personnel are working in a healthful dust-free environment involves seven major features. We have shown that, for

425

*

each of these features, the MESA procedure is unsatisfactory.
As a resutt of this inadequate enforcement program, our coal
mine personnel are being subjected to flagrantly hazardous
environments, despite public reports to the contrary.
In view of these comments, I cannot believe Congress intended to
perpetuate the discredited program. It inte~ded that the Secretary of
Labor and the Secretary of Health, Education and Welfare come up with a
new definition. They have not done so.
But even if it could be said that it was the Secretary of the Interior
and the Secretary of Health, Education and Welfare that could have established a new respirable dust definition, the fact is that such a new definition has not been established. To this day, 30 CFR 75.2(k) states
"'Respirable dust' means only dust particulates 5 microns or less in size."
It is axiomatic that an agency binds itself by its own regulation even
though the Act of Congress would allow a different result. Vitarelli v.
Seaton, 359 U.S. 535 (1959); Accardi v. Shaugnessy, 347 U.S. 260 (1945);
Service v. Dulles, 354 U.S. 363 (1957); Pacific Molasses Company v. Federal Trade Commission, 356 F.2d 386, 389 (5th Cir. 1966). Under the~
authorities, the definition of respirable dust is still particles
(particulates) of 5 microns or less in diameter. Under that standard, the
program cannot be enforced using the type of collection equipment which
MSHA currently uses. */
In my view, MSHA has two choices in order to institute an effective and
enforceable respirable dust program. One, it can either develop equipment
or modify equipment so as to collect and weigh only particles 5 microns or
less in diameter or two, it can amend its regulations so as to rescind
the definition contained in 30 CFR 75.2(k) and have the Secretary of Labor
and the Secretary of Health, Education and Welfare agree on a new definition
for and a device for the measurement of respirable dust.
In view of the importance of any early resolution of this matter, I
urge the Commission to review this case on its own motion under 29 CFR
2700.71 and set an accelerated briefing schedule.
Judgment is for Respondent and the citations are vacated.

CJ~f.m~i.

Charles C. Moore, Jr.
Administrative Law Judge

*/ I realize this paragraph is contrary to some of my previous rulings
regarding respirable dust, but I now believe that the 5-micron definition
is still in effect.

426

Distribution:
Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor,
1929 9th Avenue, South, Birmingham, Alabama 35202 (Certified Mail)
J. Fred McDuff Esq., Curtis W. Jones, Esq., Alabama By-Products
Corporation, P.O. Box 10246, Birmingham, Alabama 35202 (Certified Mail)

427

APPENDIX I
EXCERPTS FROM JUDGE MOORE '-S DECISION IN
EASTERN ASSOCIATED COAL CORPORATION
DOCKET NOS. MORG 73-131-P et al (Dec. 16, 1974)
With reference to these 22 respirable dust violations, (footnote
omitted) in Castle Valley Mining Company, 3 IBMA 10 (January 25, 1974)
the Board of Mine Operations Appeals decided that the computer printout
designated as a Notice of Noncompliance creates prima f acie proof of the
facts asserted therein regarding the respirable dust content of tested
samples. In the absence of any rebutting evidence the printout's introduction into evidence may establish the violation. MESA relied almost
exclusively on Castle Valley in its presentation of the instant case.
In the Castle Valley case, however, there were a number of other
holdings by the Board that bear ·on the outcome of the instant decision.
In that case there had been no evidence, except for that contained in
various circulars of which the Board of Mine Operations Appeals took
official notice, of the testing procedures employed by MESA's testing
laboratory in Pittsburgh, Pennsylvania. The· Board took official notice
also that the techniques employed by MESA in respirable dust testing
''are based upon scientific principles generally recognized in the
scientific community." But, as pointed out by Respondent, the Board
relied on facts "officially noticed" without giving the parties an
opportunity to rebut such facts as required by the Administrative Procedure
Act. Inasmuch as the Respondent in that case did not appear at the
hearing before the Board, however, the Board may have reasoned

428

that Respondent was in default and thus not entitled to the opportunity to rebut officially noticed evidence. In any event, Respondent Eastern Associated Coal Corporation is challenging the
scientific validity of lIBSA's testing procedures ih the instant
case, and its right to do so was specifically recognized by the
Board on page 14 of its Castle Valley decision where it stated
"of course, either the operator or MESA may question the reliability of the system at any stage."
Other statements about notices of noncompliance made by the
Board in Castle Valley which bear on the decision in the instant
case are:
[at page 19) All other circumstances of the making of
such writing or record, including lack of personal knowledge by the enterant or maker, may be shown to affect
its weight, but the circumstances shall not affect its
admissibility.
[at page 21) This section does not make a government
document received in evidence conclusive, irrefutable,
or immutable. If such papers do not speak the truth,
the defense can prove the untruth of the document.
[at page 22) Full discovery procedures were available
to Castle Valley had they had any reason to question the
reliability of the information recorded in the Notice
of Noncompliance.
Respondent in this case has taken advantage of the discovery procedures provided by our rules and has attempted to prove the unreliability of the testing procedure. Although it has not actually
demonstrated the untruth of any particular Notice of Noncompliance,
Respondent has made such a showing that I cannot simply rely on
Castle Valley and rule that the Notices of Noncompliance in evidence in this case establish the fact that Respondent has violated
the respirable dust standard.
Regarding respirable dust, its definition, and measurement,
we were indeed fortunate to have as witnesses such e~inent experts
as Dr. Morton Corn who has studied the subject for many years,
Mr. Murray Jacobson who has also been involved in the respirable
dust program for many years and who in fact set up the testing
program in issue in this case, and Nr. Pc.ul Parobeck who is currently in charge of the l·IBSA respirable dust laboratory in
Pittsburgh.

429

Respirable dust does not consist of coal dust exclusively.
It is coal mine dust which would include fine particles of coal
as well as any other fine particles of rock or other dust that
may be found in a coal mine. When a miner breathes the dust contained in the atmosphere of a coal mine, a certain portion of
that dust is filtered out in the nose, trachea and bronchial areas
of the respiration system anil another portion is deposited in the
lungs or pulmonary compartment. Years of study have shown that
it is the larger particles that are filtered out or deposited on
surfaces of the respiratory system before reaching the lungs. It
is only those small particles that pass through the filtering
system and are deposited in the lungs which will lead to the
disease known as coal miner's pneumoconiosis and which are accordingly called respirable dust.
Some of the testimony concerning respirable dust ref erred to
a Bureau of Mines infonnation circular dated February, 1971, entitled Sampling and Evaluating Resnirable Coal Mine Dust bearing
the number IC8503. On page three of that document, there appears
a graph which plots the diameter and density of the particles of
coal mine dust against th'e percentage of penetration or deposition
of such dust in the lungs, in a personal sampler device and in an
MRE instrument. 2_/ While it is not exactly clear from the graph
itself, the solid line indicates the manner .in which various sizes
of dust are deposited in the lungs, the dashed line designated
"AEC", (a development of the Atomic Energy Commission,) indicates
the same information with respect to deposition in the personal
respirable dust sampler, developed by the Bureau of Mines and the
line consisting of both dashes and dots and designated "URE" indicates the amount of dust deposited in an HRE Isleworth Gravometric
Dust Sampler, which is referred to as the NRE instrument. So far
as the two instruments are concerned, deposition as depicted by
the graph, indicates that part of the co2l mine dust which is .
deposited in the section of the instrument which is designed to
be equivalent to the lungs, i.e. the filter.
Both instruments
contain areas which are designed to eliminate dust that would
ordinarily be deposited in the nose, trachea or bronchial areas
of the human respiration system. The two instruments do this
filtering out 9f the larger non-respirable particles by taking

2_/

A copy of the referenced graph is designated Figure I.

430

advantage of the fact that i f two spherical particles composed of
the same substance are allowed to fall in an atmosphere, the larger
particle will fall faster. This is because, as the size of spherical particles increase the cross-sectional diameter and therefore
the air resistance is not increased to the same extent as the
volume, (thus the mass of the particle) increases. In moving
air, therefore, the larger particle will fall out sooner than the
smaller particle. In the MRE instrument the air flow rate is
such that the large particles fall out along the horizontal elutriator and only the smaller particles are deposited upon the
filter which is later weighed. The air flow rate in this instrument is 2.5 liters per minute. It is obvious, that if the air
flow in this instrument were increased, the larger particles would
be deposited upon the filter whereas if it were decreased, particles
normally reaching the filter might be deposited in the elutriator.
The personal sampler works on the same principle except that
a cyclonic system is used to cause increased acceleration for the
purpose of driving larger (i.e. heavier) particles to the outside
of the circling atmosphere. The personal sampler must operate
with an air flow of 2 liters per minute, and it is equally obvious
that in this system an i.nc::-ease in the air flm·: will increase the
G loads and thus cause the particles which might ordinarily reach
the filter to drop out earlier, whereas too low an air flow would
cause such larger, non-respirable particles ~o reach the filter.
Any variation in the air flow in the two instruments therefore
has the opposite effect. In one, increased air flow would cause
an error of too small a particle being deposited on the filter
whereas the same increased air flow in the other instrument would
cause· too large a particle to be deposited on the filter. The
proper rate of air flow is thus extremely critic.al to both instru-::"
men ts.
Assuming both instruments are properly adjusted, the graph
on page 3 of Information Circular 8503, (Figure I herein] shows
that neither instrument collects on its filter, dust exactly corresponding to that collected by the lungs. The graph indicates
that the MRE instrument will collect particles up to 7.1 microns
in diameter whereas the person?l sarepler will collect particles
up to 10 microns in diameter. While the graph is not exactly
clear as to the pulmonary deposition, it appears to indicate deposition of particles up to somewhere between slightly over 6 microns
and 7 microns in the lungs. The~e are other significant differences in the graphs. For example, both the personal sampler and
the MRE instrument collecr. bet\·;een 90 and 100 percent of the coal
mine dust 2 microns in diameter whereas the lungs collect only

431

0

2
4
6
8
IO
DIAMETER UNIT DENSITY, SPHERE, micror.s

FIGURE

1. ·Comparison of Respirable Size Criteria
With Pulmonary Deposition Curve.·

FIGURE I

432

12

somewhere between 70 and 75 percent of that size particle. The
lungs collect only 54 percent of the particles that are a half
micron in diameter whereas both instruments collect almost 100
percent of that size of particle. But it must be assumed that
the Congress knew of the collection curves involved when it passed
the Act and defined respirable dust as those particles of coal
mine dust 5 microns or less in diameter. And, in the area between
5 micron particles and 2 micron particles the personal sampler
curve is very close to the pulmonary curve. While the personal
sampler does collect particles up to 10 microns in size, it collects
a very small percentage of particles with a diameter in excess of
7 microns. The fact remains, however, that the instruments do
collect particles larger than the statutory definition of respirable
dust. 2-_/
From the aforementioned distribution curve, it appears that
both the lungs and the personal sampler collect sl~ghtly more
than 20 percent of the particles that are 5 microns in diameter.
The personal sampler collects almost no particles that are 10
microns in diameter, and from observing the curve it would appear
that the personal sampler collects approximately 10 percent of
those particles between 5 microns in diameter and 10 microns in
diameter. The fact that the personal sampler collects 10 percent
of the dust that is larger than the statutoroy definition of respirable dust, however, does not mean that 10 percent of the dust
collected by the sampler is too large to be considered respirable
dust. It means that whatever quantity of that size particles is
contained in the mine atmosphere, the personal sampler will collect
10 percent of that total quantity on its filter.

2-_/

The fact that in Section 202(e) of the Act it states "references
to concentrations of respirable dust in this title means the average
concentration of respirable dust if measured with an HRE instrument
or such equivalent concentration as measured with another device
approved by the Secretary of Health, Education and Welfare" does
not mean that anything me<rnured by an MRE instrument or another
equivalent device would be respirable dust. While concentrations
of such dust are to be measured in such instru."llents, there is no
equivocation or uncertainty about the proscriptions of Section 318(k)
which states in no uncertain terms "'respirable dust' means only
dust particles 5 microns or less in size ••• " (Underscoring supplied)

433

While there was no testimony on the point, it would se~m
reasonable that a slight increase in the air flow of the personal
sampler would tend to prevent the larger particles of dust in
excess of 5 microns in diameter from being deposited upon the
filter. I must assume, however, that if such a simple solution
would work, it would have been undertaken and that, therefore,
any increase of air flow would affect the qccuracy of the device
in collecting the smaller particles of respirable dust. Also, it
may be that rather than trying to approximate the human respira....
tion system, the technicians should seek to devise an instrument
which will measure and weigh only particles of dust 5 microns or
less in diameter, but such a determination is not within the
province of this hearing. We deal here with the devices as they
exist, not as they might be.
The dust sampling procedure established by the Bureau of
Mines has been described in Info:::-mation Circulars 8484, 8520, and
8503, as well as in other publications of the Bureau of Hines and
MESA. The testimony in this case agrees with the descriptions
referred to and will only be explained herein in general terms.
In general, the mine opeTator purchases cassettes for the purpose
of measuring respirable dust from-a manufacturer who has its cas.,.
settes and the empty filter weight data chec};\.ed by the Bureau of
Mines on a routine basis. The cassette has a serial number and a
mine data card accompanying it has the same number. After the
test has been run in the personal sampler the cassette and mine
data card, filled out so far as required, are forwarded to the
Pittsburgh testing laboratory.
The Pittsburgh testing laboratory is maintained under controlled temperature and humidity and at a pressure slightly higher
than the surrounding areas so that there will be no dust d:rawn
into the laboratory. The cassettes received from the mine operator are opened in the laboratory, and the mine data card and
capsule containing the filter are placed on trays and the numbers
on the card and capsule are checked. They are then desiccated
i.e. dried, to remove any moisture that might otherwise affect
the weight, and moved to an electronic balance where devices are
placed to nullify any electrostatic effect that might distort the
actual weight of the filter. The filter is weighed on the electronic balance and an operator notes the weight and writes it
down on the mine data card. At that point the technician perfo,rm ....
ing the weighing operation makes a mental calculation to determine
if the weight gain, that is the difference between the :::-ecordeci
empty weight of the filter and the weight of the filter with the
dust particles deposited thereon, is greater than 6 nilligrams.

434

If it is, the sample is put aside for testing for oversize particles, but if there is a weight gain of 6 milligrams or less, the
sample is discarded and destroyed. No record is kept on the mine
card or anywhere else as to which of a number of technicians made
the actual weighing on any particular sample. After the weighing,
the results are punched out on a keypunch teletype system by one
operator and then a different person keypunches the same data
again. The system is such that if the two operators do not punch
out exactly the same data, an automatic notification is given so
that the operators can check to see if one or the other made an
error in transcribing the information from the mine data card.
The data punched into the system, goes directly to the computer
in Denver, Colorado which, at a later date, determines if any 10
consecutive valid samples comply or do not comply with the standard
in effect.
Throughout this procedure, at.several places, the mine data
card and filter identification numbers are checked. But there
was at the time of the violations involved in this case, no double
check of t~e visual weight display observed by the person operating
the balance. At a later time, subsequent to Mr. Parobeck's deposition (Respondent's Exhibit 14) but prior to the hearing, a spot
check system was instituted whereby a certain number of these
weighings were later duplicated by a different operator on a ran~
dam basis to see if a discrepancy had occurred.
The testimony indicated that the decision to check filters
showing a weight gain greater than 6 milligrams was an arbitrary
decision not based on any particular studies. With respect to
those capsules, showing the 6 milligram weight gain, first they
are examined to see if oversized particles appear visually ·with..,..
out the aid of a microscope. It such particles appear the sample
is voided. If they do not appear, however, the filter is examined
under a microscope with various sections of the filter designated
as fields. It is not stated in the testimony the exact size of a
field, but 10 of these fields are exa."Ilined and the sample is voided
if these 10 fields each show three or more particles that are in
excess of 10 microns in size. Mr. Parobeck's testimony made it
clear that if nine of these fields all show more than 3 particles
in excess of 10 microns but the 10th field did not show such particles, the sample would not be voided. It is thus fairly clear
that in addition to the particles over 5 microns in diameter,
particles in excess of 10 microns in diameter and thus also not
respirable are counted against a Respondent whether the sample

435

weight gain is more than 6 milligrams or less than 6 milligrams
since no test is taken regarding the weight gains of less than 6
milligrams. 1/
In the Castle Valley case, supra, the Board of Mine Operations
Appeals stated that a notice of non-compliance which is a computer
print-out from the Denver computer, is prima facie evidence of a
violation which can be rebutted. The Board indicated that in
view of the discovery procedures available to a Respondent, he.
could challenge any notice of non-compliance that might be issued.
As testimony has indicated in this case, however, discovery techniques will help a Respondent very little in determining whether
or not his sample was actually tested properly. It is clear that
he cannot discover who made the actual weighing, he cannot test
the sample prior to sending it in because it would then be voided
for tampering, and he cannot send in experts to test his sample
after it has shown a greater than 3 milligrams result. There is
in effect absolutely nothing a Respondent can do to defend itself
if the computer print-out shows that it is in violation of the
respirable dust standard.

436

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

22041

FEB 1 3 1980

Civil Penalty Proceeding

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

Docket No. CENT 79-92-M
A/O No. 41-01163-05002
Plant 53 Seagoville

GENERAL PORTLAND, INC.,
Respondent
DECISION APPROVING SETTLEMENT
The Solicitor has filed a motion to approve a settlement in the
above-captioned proceeding.
Citation No. 153605 was issued when a back-up alarm on a bulldozer
was found to be inoperative, a violation of 30 CFR 56.9-2. The
assessed penalty was $72 and the recommended settlement is $40. In
support of the recommended settlement, the Solicitor states that there
was little operator negligence as the violation could not have been
reasonably predicted. The Solicitor gives no basis for this representation. In the future the Solicitor should give reasons. Bare conclusions
will not suffice. The Solicitor also states that the probability of
injury was over-evaluated since very few employees were exposed to the
risk, they were not exposed to the risk with any great frequency and
they were not working in a situation where their attention would be
distracted. I accept the Solicitor's representations and on the basis
of low gravity conclude that the recommended settlement should be
approved. The Solicitor further advises that respondent has already
paid the $40 penalty sought by MSHA.
ORDER
The recommended settlement is hereby APPROVED.

~~\\,~
Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
David S. Jones, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square, Suite 501, Dallas, Texas 75202
(Certified Mail)
M. Susan Carlson, Esq., Kilcullen, Smith & Heenan, 1800 M St., N.W.,
Washington, DC 20036 (Certified Mail)

437

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

fEB t 3

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

22041

tjU

Civil Penalty Proceeding
Docket No. LAKE 79-109
A/O No. 33-01357-03003

v.
West.Point Strip Mine
BUCKEYE COAL MINING COMP Ai~, INC. ,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
The Solicitor has filed a motion to approve settlements in the
above-captioned proceeding.
Citation No. 273083 was issued for a failure to conduct noise level
surveys at six month intervals, as required by 30 CFR 71.303(a). The
original assessment was $150 and the recommended settlement is $52. In
support of her motion, the Solicitor states that both operator negligence
and gravity had been overassessed: the operator's safety director thought
he had conducted the survey, and the probability of occurrence was
improbable as previous surveys had demonstrated no excessive noise
exposures. I accept the Solicitor's representations, which indicate a
low level of negligence and a lack of gravity. Accordingly, the recommended settlement is hereby approved.
Citation Np. 784608 was issued when a portable fire extinguisher
was found to be unusable and inoperative, a violation of 30 CFR 77.1110.
The original assessment was $34 and the recommended settlement is $25.
In support of her motion, the Solicitor states that the probability of
injury was minimal as there were other fire extinguishers present in the
area. I accept the Solicitor's representations. Accordingly, the
recommended settlement is hereby approved. I would however, note that
the original assessment was low. I cannot understand why the Solicitor
would agree to any reduction. However, the difference involved is so
small that further expenditure of the taxpayers' money on this matter is
not justified.
The Solicitor further states that Citation Nos. 784606 and 784607
have been settled for the original amounts of $48 and $66, respectively.
However, she gives no reasons for the recommended settlements. Proceedings
before the Commission are de novo, and a sufficient basis must be provided
for the approval of all settlements. Rather than disapprove these
settlements, I have reviewed the citations, the assessment sheets and
the inspector's statements. Based upon my own review of the violations,
I conclude the recommended settlements are consistent with and will
effectuate the purposes of the Act. The recommended settlements are
therefore, approved. In the future, however the Solicitor should given
reasons.

438

ORDER
The operator is ORDERED to pay $191 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Bldg., 1240 East Ninth St., Cleveland,
OH 44199 (Certified Mail)
John Orr Beck, Esq., 26 N. Park Avenue, Lisbon, OH
(Certified Mail)

439

44432

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

(703) 756-6210}.J..l/12

fEB \ 3 19tll
STEVE SHAPIRO,
Complainant

Complaint of Discharge,
Discrimination and Interference

v.

Docket No. WEVA 79-238-D

BISHOP COAL COMPANY,
Respondent

Docket No. WEVA 79-445-D
Bishop No. 34 Mine

SECRETARY OF LABOR,
ON BEHALF OF STEVE SHAPIRO,
Complainant

v.
CONSOLIDATION COAL COMPANY
(BISHOP COAL COMPANY),
Respondent
DECISIONS APPROVING SETTLEMENT
Appearances:

Barbara K. Kaufmann and Kenneth Stein, Esqs., Office of the
Regional Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Complainants; Kendrick King, UMWA,
District #29, Beckley, West Virginia, for complainant
Steve Shapiro; Samuel P. Skeen, Esq., Pittsburgh, Pennsylvania,
for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern discrimination complaints filed
by the complainants against the respondent pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. A
hearing was conducted in Charleston, West Virginia during the term October 23-24,
1979, to commence again at a time and place convenient to the parties.
Subsequently, complainant MSHA advised me by letter dated January 18, 1980,
that the parties had reached a settlement in the cases and that a motion
to withdraw the complaints would be forthcoming for my review and consideration.
By motion filed February 7, 1980, MSHA moves to withdraw its
discrimination complaint on the ground that the parties have agreed to
settle the matter and that the terms of the agreement finalizing
the settlement are satisfactory to all concerned, including Mr. Shapiro,
and that both the operator and Mr. Shapiro have signed and executed the
settlement agreement, a copy of which as been submitted for the record.

440

Under the terms of the agreement respondent agrees that it will not
discharge or in any· manner discriminate against or interfere with any
miner, representative of miners, or applicants for employment subject
to the Act because of their engaging in activities protected by the Act
or in the exercise of any rights granted to them under the Act, including
the making of health or safety complaints to the respondent or to MSHA
or the filing of charges with MSHA. Further, respondent agrees to
innnediately post on the mine bulletin board, or in a conspicuous place
where notices to employees are customarily posted and maintained for a
period of 60 consecutive days from the date of posting, the notice
setting forth the terms of the settlement agreement between the respondent
and Mr. Shapiro.
Discussion
Connnission Rule 30, 29 CFR 2700.30, requires Connnission approval
for proposed civil penalty cases which have been contested but subsequently
settled. Although the instant cases are complaints of discrimination
filed pursuant to section 105(c)(2), MSHA's claims for relief included
a proposal for assessment of an appropriate civil penalty in the event
it prevailed on its discrimination claim. Accordingly, I believe that
any proposed settlement in cases of this kind require a Judge's approval
pursuant to rule 30. See, Secretary of Labor (MSHA) and John Koerner v.
Arch Mineral Coal Company, DENV 78-564, March 9, 1979, a discrimination
case decided by now retired Judge Littlefield on February 7, 1979.
Judge Littlefield approved a settlement entered into by the parties on
the ground that "the parties have successfully negotiated a settlement
on all matters formally in issue", and he vacated a reinstatement order
previously entered in the case. On review, the Connnission remanded the
case to the Judge in order to supplement the record with (1) the terms
of the settlement and (2) to document the fact that the employee agreed·
to or otherwise acquiesced in the negotiated settlement. Further, in a
recent case decided by Judge Steffey on January 8, 1980, MSHA and James
Blevins, et al., v. Cedar Creek Coal Corporation, VA 79-55-D, he
approved a discrimination case settlement and permitted withdrawal of the
complaint on the basis of his findings that all of the affected miners
signed the agreement and that it reflected a reasonable resolution of
all issues p~esented in the proceedings.
Conclusion
After full consideration of the record adduced in these proceedings,
including the transcripts of the testimony presented by the witnesses who
testified in the two-day hearing session of October 23 and 24, 1979, and
the settlement agreement entered into by the parties, I conclude that
the proposed disposition of these proceedings is in the public interest
and should be approved. It seems clear to me that both Mr. Shapiro and
the respondent are satisfied with the agreed upon disposition of the complaints

441

which were filed in these proceedings, and that the Secretary is in
accord with the agreement. Accordingly, pursuant to 29 CFR 2700.30,
th.e settlement is approved, and MSHA' s motion to withdraw and dismiss
is granted.
Order
Respondent is ordered to comply forthwith with the terms of the
settlement as set forth above and to post the notice of the agreement
as agreed. Upon compliance, these proceedings are dismissed.

(l~

. Koutras

Judge
Distribution:
Kendrick King, General Counsel, District 29, U.M.W.A. Box 511, Beckley,
WV 25801 (Certified Mail)
Samuel P. Skeen, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh,
PA 15241 (Certified Mail)
Barbara K. Kaufmann, Kenneth Stein, Esqs., U.S. Department of Labor,
Office of the Solicitor, Rm. 14480 Gateway Bldg., 3535 Market St.,
Philadelphia, PA 19104 (Certified Mail)
Steve Shapiro, P.O. Box 137, Newhall, WV 24866 (Certified Mail)

442

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

(703) 756-6225
'FEB t 4 t900

Civil Penalty Proceeding

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

Docket No. KENT 79-39
A.O. No. 15-11014-03002

Petitioner

v.
Mine:

Freedom No. 1 Surface

H & H COAL COMPANY,
Respondent
DECISION
Pursuant to Section llO(a) of the Federal Mine Safety and Health Act
of 1977 (the Act), the Secretary of Labor petitioned for the assessment of
a civil penalty. A hearing was held on January 9, 1980 in Louisville,
Kentucky.
The parties stipulated and I find:
1. Respondent, H & H Coal Company, is subject to the Act's jurisdiction, is a small operator, and operates Freedom No. 1 Surface.
2.

I have jurisdiction over this case.

3. On November 20, 1978, Earl T. Leisure, a duly authorized MSHA
representative, inspected Freedom No. 1 Surface and properly issued the
citation in question.
4. Exhibit P-1 accurately reflects Respondent's history of previous
violations.
5. Any penalty that I assess will not adversely affect Respondent's
ability to continue in business.
6.

Respondent acted in good faith in connection with this matter.

At the conclusion of the hearing, the parties waived the filing of
written briefs, proposed findings of fact, and conclusions of law and I
rendered the following decision from the bench:
Petitioner alleged that pursuant to Section 110 of the
Act a civil penalty should be assessed against Respondent
for violating the Safety Standard at 30 CFR 77.404(a).

443

That Standard reads "mobile and stationary machinery
and equi.pment shall be maintained in safe operating condition, and machinery or equipment in unsafe condition shall
be removed from service immediately."
Petitioner contends that in permitting a vehicle,
which was used for drilling to be operated with its front,
rear and side windows removed, Respondent did not maintain
that vehicle in a safe condition in that the vehicle's
driver could have been injured by the -sharp edges of the
window frames and by dust or the debris flying back from
the drill to the front window opening. I agree.
I find that the operation of this vehicle without
windows constituted an unsafe operating condition, and
this violated the Standard at 30 CFR 77.404.
I find that there was some danger of the driver being
struck by dust and/or debris that might come into the front
of the vehicle through the front window opening. A window
would have protected the driver against this danger.
To a lesser extent, there was possible danger from the
windows' edges.
There is some dispute as to the sharpness of the edges
in and about the window frames, and in view of the fact that
the vehicle moved slowly and the driver generally kept his
hands on the controls, this danger was slight.
There was little negligence involved since the violation was based upon an interpretation of the regulation,
which the operator legitimately disagreed with and of which
the operator had no advance notice.
In consideration of the above, as well as the other
criteria under Section llO(i), including H & H's rapid compliance and good faith and its efforts to prevent repetition
of this violation, I assess a penalty of $15 against the
operator for this violation.
Accordingly, it is ordered that H & H Coal Company pay
a penalty of $15 on or before 30 days after it receives a
copy of my signed decision and Order in this matter.
The bench decision is AFFIRMED.

444

ORDER
Respondent is ORDERED to pay $15.00 in penalties within 30 days after
receipt of this Order.

Edwin S. Bernstein
Administrative Law Judge
Distribution:
George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Byron W. Terry, Safety Director, The Hoke Company, Inc, Box 61,
Cromwell, KY 42333 (Certified Mail)

445

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

(703) 756-6225
f£9 14 i9M

Civil Penalty Proceeding

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

Docket No. KENT 79-124
A.O. No. 15-10364-03003

Petitioner

v.
Mine:

Prep Plant

GOLDEN R COAL COMPANY,
Respondent
DECISION
Pursuant to Section llO(a) of the Federal Mine Safety and Health Act
of 1977 (the Act), the Secretary of Labor petitioned for the assessment of
a civil penalty. Petitioner alleged that Respondent violated the mandatory
safety standard at 30 CFR § 77.1707(b), which reads:
The first aid equipment required to be maintained under
the provisions of paragraph (a) of this section shall include
at least the following:
(1)

One stretcher;

(2) One broken-back board (if a splint-stretcher combination is used it will satisfy the requirements of both subparagraph (1) of this paragraph and this subparagraph (2));
. (3) Twenty-four triangular bandages (15 if a splintstretcher combination is used);
(4)

Eight 4-inch bandage compresses;

(5)

Eight 2-inch bandage compresses;

( 6)

Twelve 1-inch adhesive compresses;

(7)

An approved burn remedy;

(8)

Two cloth blankets;

(9)

One rubber blanket or equivalent substitute;

(10)

Two tourniquets;

446

(11) One 1-ounce bottle of aromatic spirits of ammom.a
or 1 dozen ammonia ampules; and,
(12) The necessary complements of arm and leg splints
or two each inflatable plastic arm and leg splints.
Paragraph (a) reads:
Each operator of a surface coal mine shall maintain a
supply of the first aid equipment set forth in paragraph (b)
of this section at or near each working place where coal is
being mined, at each preparation plant and at shops and other
surface installation where ten or more persons are regularly
employed.
A hearing was held on January 9, 1980, in Louisville, Kentucky. The
issues are whether Respondent violated the standard and, if so, the appropriate civil penalty to be assessed, based upon the six criteria in Section
llO(i) of the Act. At the hearing, Earl T. Leisure, the MSHA inspector who
issued the citation, testified for Petitioner and Byron W. Terry, Respondent's safety director, testified for Respondent.
The parties stipulated, and I 'find:
1. Respondent, Golden R Coal Company, is subject to the jurisdiction
of the Act.
2.
Plant."

Respondent operates a coal preparation plant called the "Prep

3. Earl T. Leisure is a duly authorized representative of the Mine
Safety and Health Administration, and in his official capacity inspected the
"Prep Plant" on September 18, 1978.
4.

Respondent was properly issued the citation in question.

S.

Respondent is a small operator.

6. Any penalty which I assess will not adversely affect Respondent's
ability to continue in business.
7. The certified computer printout marked as Exhibit P-1 reflected
an accurate history of previous violations.
Mr. Leisure testified that on September 18, 1978, he inspected the Prep
Plant, accompanied by Respondent's plant manager, Larry Gwinn. During this
inspection, Mr. Leisure discovered that the plant's first-aid kit was missing certain items which are required by the standard. The missing items
included one broken back board, 21 triangular bandages, three 4-inch bandage
compresses, 12 1-inch adhesive compresses, an approved burn remedy, two
cloth blankets, and one tourniquet. Mr. Leisure stated that the missing

447

items represented more than half of the required contents of the kit, and
that in his opinion, they were "major items as opposed to small items."
Although Mr. Leisure felt that Mr. Gwinn should have. known of these shortages, he also felt that Respondent exercised good faith in rapidly abating
the condition. The abatement notice, which was issued by another inspector,
stated that the Prep Plant later procured a complete first-aid kit.
Mr. Terry testified that the operator read Section 77.1707(a) as requiring a full first-aid kit (i.e., one meeting all the requirements of section 77.1707(b)) only at preparation plants where 10 or more persons are regularly employed. He.stated that only three people were working at the Prep
Plant at the time of the alleged violation. With respect to specific shortages in the Prep Plant's equipment on the day in question, Mr. Terry stated
that additional blankets were available at the owner's house, which was
120 yards from the plant. The absence of a stretcher or broken back board was
explained by the close proximity of ambulance service in Morgantown, Kentucky,
which was apparently 5 to 10 minutes from the plant. On cross-examination,
however, Mr. Terry admitted that if the standard applied to the Prep Plant,
the availability of ambulance service did not provide the type of protection
that compliance with the standard would. Finally, Mr. Terry stated that
after the citation was issued, plant employees drove 89 miles to obtain a
full first-aid kit, and that the kit was in the plant office the morning
after the citation was issued.·
The parties filed posthearing submissions directed to Respondent's argument that the requirements of s·ection 77 .1707(b) do not apply to preparation
plants employing less than 10 persons. Petitioner argues that Section
77.1707(a) designates working places and preparation plants specifically with
the use of the word "each, 11 while "shops and other surface installation(s)"
are only generally designated. Thus, in Petitioner's view, the "10 or more
persons" requirement relates back only to shops and other surface
installations.
Respondent argued that the comma after the word "mined" in Section
77.1707(a) was intended to divide the sentence into those installations where
a first-aid kit would be required regardless of the number of employees at
the facility, and those installations where a kit would be required only if
10 or more persons were regularly employed.
I commend both parties on their arguments concerning the interpretation
of a standard which is, admittedly, drafted in an ambiguous and confusing
manner. However, on balance, I believe that Petitioner's interpretation is
more persuasive. In reaching this conclusion, I am guided not only by the
wording of the regulation, but by the Act's underlying remedial purposes.
As a general proposition, rules of statutory construction can be
employed in the interpretation of administrative regulations. See
C. D. Sands, lA Sutherland Statutory Construction, § 31.06, p. 362 (1972).
According to 2 Am. Jur. 2d, Administrative Law, § 307 (1962), "rules made
in the exercise of a power delegated by statute should be construed together

448

with the statute to make, if possible, an effectual piece of legislation in
harmony with common sense and sound reason."
Section 2 of the 1977 Mine Act attests to the statute's remedial purpose as follows:
SEC. 2 Congress declares that-(a) the first priority and concern of all in the coal or
other mining industry must be the health and safety of its
most precious resource--the miner;
(b) deaths and serious injuries from unsafe and
unhealthful conditions and practices in the coal or other
mines cause grief and suffering to the miners and to their
families;
(c) there is an urgent need to provide more effective
means and measures for improving the working conditions and
practices in.the Nation's coal or other mines in order to
prevent death and serious physical harm, and in order to
prevent occupational diseases originating in such mines;
(d) the existence of unsafe and unhealthful conditions
and practices in the Nation's coal or other mines is a
serious impediment to the future growth of the coal or
other mining industry and cannot be tolerated;
(e) the operators of such mines with the assistance of
the miners have the primary responsibility to prevent the
existence of such conditions and practices in such mines;
(f) the disruption of production and the loss of income
to operators and miners as a result of coal or other mine
accidents or occupationally caused diseases unduly impedes
and burdens commerce; and
(g) it is the purpose of this Act (1) to establish
interim mandatory health and safety standards and to direct
the Secretary of Health, Education, and Welfare and the
Secretary of Labor to develop and promulgate improved mandatory health or safety standards to protect the health and
safety of the Nation's coal or other miners; (2) to require
that each operator of a coal or other mine and every miner
in such mine comply with such standards; (3) to cooperate
with, and provide assistance to, the States in the development and enforcement of effective State coal or other mine
health and safety programs; and (4) to improve and expand,
in cooperation with the States and the coal or other mining
industry, research and development and training programs

449

aimed at preventing coal or other mine accidents and
occupationally caused diseases in the industry.
Remedial legislation such as the 1977 Mine Act must be interpreted in
light of the express Congressional purpose of providing a safe work environment, and the regulations promulgated pursuant to such legislation must be
construed to effectuate Congress' goal of accident prevention. Brennen v.
Occupational Safety and Health Review Commission, 491 F.2d 1340, 1343
(2d Cir. 1974). "Should a conflict develop between a statutory interpretation that would promote safety and an interpretation that would serve
another purpose at a possible compromise of safety, the first should be
preferred." District 6, UMWA v. Department of the Interior Board of Mine
Operations Appeals, 562 F.2d 1260, 1265 (D.C. Cir. 1972).
Turning to the regulation itself, I do not agree with Respondent's contention that the comma after the word "mined" was intended to substantively
separate the sentence so as to include preparation plants in the "10-person"
limit. If such a meaning had been intended, I believe that the word "and"
would have been placed after the word "mined", rather than after "preparation
plant." I find Petitioner's argument concerning the use of the word "each"
before "working place" and "preparation plant," but not before "shops and
other surface installation(s)" to be more convincing. Accordingly, I find
that Respondent violated 30 CFR § 77.1707(b).
However, I do not agree w~~h the Assessment Office's proposed penalty
of $98. The language of this regulation is so unclear that it did not provide this operator with adequate notice of its meaning. Therefore, I assess
a penalty of $10.
ORDER
Respondent is ORDERED to pay $10 in penalties within 30 days of the
date of its receipt of this Order.

~· //'. &~ ·Edwin s. Bernstein
Administrative Law Judge
Distribution:
George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Byron W. Terry, Safety Director, Golden R Coal Company, R.R. No. 1,
Cromwell, KY 42333 (Certified Mail)

450

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52Q3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6225

FEB f ·4 1990
Civil Penalty Proceeding

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

Docket No. KENT 79-138
A.O. No. 15-11129-03003

Petitioner
v.

Mine:

Land Fill Strip

THE HOKE COMPANY, INC.
Respondent
DECISION
Pursuant to Section llO(a) of the Federal Mine Safety and Health Act of
1977 (the Act), the Secretary of Labor petitioned for the assessment of civil
penalties for six citations issued to Respondent. A hearing was held on
January 9, 198?, in Louisville~ Kentucky.
The parties stipulated and I find:
1. Respondent, The Hoke Company, Inc., is subject to the Act's jurisdiction, is a small operator, and operates the surface coal mine designated
as "Land Fill Strip."
2. On January 16, 1979, Earl T. Leisure, a duly authorized MSHA representative, inspected Land Fill Strip and properly issued the citations in
question.
3. Exhibit P-1 accurately reflects Respondent's history of previous
violations.
4. Any penalty that I assess will not adversely affect Respondent's
ability to continue in business.
After submitting evidence, the parties waived filing briefs and proposed
findings of fact and conclusions of law and I issued the following decisions
from the bench.
Citation No. 399161
The violation, alleged under the Section 110 of the Act, is of 30 CFR
77.410, which reads: "Mobile equipment such as trucks, forklifts, frontend loaders, tractors and graders shall be equipped with an adequate automatic warning device which shall give an audible alarm when such equipment
is put in reverse."

451

It is undisputed that Respondent violated that safety provision, and
I so find.
There was a high degree of negligence. Knowing that the backup alarm
on the vehicle was disabled, Respondent operated the vehicle. This constituted a willful violation of the standard.
The gravity was moderate. No one was in the area, according to
Mr. Terry's testimony and the testimony of-Mr. Leisure.
As Mr. Leisure testified, it is difficult to see behind this vehicle.
The vehicle was in reverse at least 50 percent of the time, and the vehicle
is extremely heavy, many tons in weight. Therefore, the risk of death or
serious injury as a result of this violation can be quite great. Because of
this violation and the negligence involved, sufficient penalty to encourage
future voluntary compliance is required. However, taking into consideration
the fact that the operator is a small operator and exercised good faith
efforts to correct the condition, in this case, I assess a penalty of $200.
But for these factors, I would assess a larger penalty, and I would expect
that the next time such a violation occurs, given this type of factual situation by this operator, the penalty would be larger.
Citation No. 399162
1his citation involves an alleged violation of 30 CFR § 77.404(a),
which reads: "Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."
Petitioner contends that in operating this truck with its muffler and
tailpipe missing, Respondent exposed the occupants of that truck to the danger
of being seriously injured by carbon monoxide fumes.
I find that Respondent was in violation of that provision. There was a
fair degree of negligence. Respondent knowingly violated that provision.
The gravity was moderate. It was wintertime. There was a danger of the
operators of that vehicle keeping the windows closed and of the fumes poisoning the occupants. However~ there is no evidence that on this occasion the
windows were rolled up.
This is a small operator, and the evidence is that the operator did
achieve prompt compliance. Therefore, I find the amount of the penalty
warranted for this violation in order to encourage voluntary compliance is
$125.
Citation No. 399163
I find that by not providing this explosive truck with a working horn,
Respondent violated several safety standards of this Act.

452

In my opinion, Respondent violated all three standards that were
discussed.
It was a violation of 30 CFR § 77 .404( a) which reads:
"Mobile and
stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed
from service immediately."

This was mobile machinery or equipment. A working horn is a requirement
of operating a vehicle in a safe operating condition. In not having a working horn, Respondent violated that safety provision.
A similar violation occurred with respect to 30 CFR § 77.1302(b),
which reads: "Vehicles containing explosives or detonators shall be
maintained in good condition and shall be operated at a safe speed and
in accordance with all safe operating practices."
In not having a working horn, this vehicle was not maintained in good
condition.
Finally, although I agree with Mr. Terry that there is some question as
to the applicability of the Section, 30 CFR § 77.1605(d)• I agree that of
the three sections, this may b~ the least applicable. I find that the
language in this section is sufficiently broad to apply.
Therefore, I find a violation. I find moderate gravity. A horn is an
important safety device in a vehicle of this kind. There is a question as
to the degree of negligence. There is no evidence that the supervisory
personnel of Respondent knew of this condition before the inspector discovered it, although there is some hearsay evidence that a driver stated that
the condition existed for quite some time.
There was good faith compliance, and this is a small operator. As I
have indicated, I consider these standards to be quite important. I assess
a penalty of $65, which I hope would be sufficient enough to encourage voluntary compliance of these standards on the part of the operator in the future.
Citation No. 399164
In view of what I have heard and upon consideration of the six criteria
set forth in Section llO(i) of the Act, I will approve the settlement proposed by the parties and I will assess a penalty of $84 for Citation
No. 399164.
Citation No. 399165
After hearing the testimony of the witness and upon consideration of
the six criteria set forth in Section llO(a) of the Act, I will approve the
proposed settlement and I will approve the assessment. I will assess a
penalty of $106 for the violation in Citation No. 399165.

453

Citation No. 399200
'Ihe citation involves an alleged violation of the mandatory standard
at 30 CFR § 77.1109(c)(l), which reads: "Mobile equipment, including
trucks, front-end loaders, bulldozers, portable welding units, and augers,
shall be equipped with at least one portable fire extinguisher."
The undisputed testimony of Mr. Leisure is that at the time of his
inspection, the Caterpillar D9E tractor did not have a portable fire extinguisher. Therefore, Respondent violated the safety standard.
The operator was negligent in that this condition was readily observable. The extinguisher was reasonably large. It would have been a bright
color, and it was the type of item that could have been noted upon an
inspection.
The fact that there is no evidence that the officials in charge of the
mine knew that the extinguisher was not on the vehicle does not nullify the
fact that they should have or could have known upon inspection that the
extinguisher was not on the vehicle.
A lack of an extinguisher could have caused serious injury to the driver
of the vehicle in the event of a fire.
The gravity of the violation is somewhat mitigated by the fact that, as
testified to by Mr: Terry, there were other extinguishers nearby. However,
the regulation does require an extinguisher on each vehicle.
There was good faith correction by the operator, and this is a small
operator.
I therefore assess a penalty for this violation in an amount of $65,
which I hope would be high enough to deter further violations of this kind
and assure voluntary compliance of this Standard by the mine operator.
I affirm these six bench decisions.
Summary
The following table summarizes the citation numbers, the amounts
originally proposed by the Assessment Office, and the final assessments to
be paid by Respondent:
Citation No.

Proposed Assessment

Final Assessment

399161
399162
399163
399164
399165
399200

$ 72.00
$106.00
$ 48.00
$ 84.00
$106.00
$ 40.00

$200.00
$125.00
$ 65.00
$ 84.00
$106.00
$ 65.00

454

ORDER
Respondent is ORDERED to pay $645.00 in penalties within 30 days after
its receipt of this Order.

#-· #· & ... ;z;
Edwin s~ Bernstein
Administrative Law Judge

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

455

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

22041

FEB 1 4 1980

Civil Penalty Proceeding

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

Docket No. LAKE 79-53
Assessment Control
No. 11-00614-03007

Petitioner

v.
SOUTHWESTERN ILLINOIS COAL
CORPORATION,
Respondent

Streamline Strip Mine

DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Brent L. Motchan, Esq., St. Louis, Missouri, for
Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated September 4, 1979, a hearing in the
above-entitled proceeding was held on October 10, 1979, in St. Louis,
Missouri, under section 105(d) of the Federal Mine Safety and Health Act
of 1977.
MSHA's Petition for Assessment of Civil Penalty was filed in Docket
No. LAKE 79-53 on May 14, 1979, seeking assessment of a civil penalty for
an alleged violation of 30 CFR 77.1710(a).
Issues
Simultaneous posthearing briefs were filed on December 13, 1979, by
counsel for MSHA and Southwestern Illinois Coal Corporation. The briefs
raise the issues of (1) whether a violation of section 77.1710(a) occurred
and, if so, what civil penalty should be assessed based on the six criteria
set forth in section llO(i) of the Act and (2) whether Southwestern Illinois
Coal Corporation should be required to pay a civil penalty for an alleged
violation which was committed by an independent contractor.
Findings of Fact
My decision in this proceeding will be based on the findings of fact
set forth below:

456

1. Southwestern Illinois Coal Corporation operates the Streamline
.Strip Mine which is located in Randolph County, Illinois. The mine employs
176 miners to produce about 5,600 tons of coal per day from the Illinois
No. 6 coal seam which is 72 inches thick (Exh. 1, p. 3). Southwestern is
controlled by Arch Mineral Corporation whose total annual coal production
for the year 1978 was 7,783,693 tons. Ashland Oil Incorporated owns a
48.9-percent interest in Arch Mineral Corporation (Exh. 1, pp. 1 & 2).
2. Southwestern Illinois Coal Corporation, hereinafter referred to
as the operator, entered into a contract dated June 22, 1977, with Darryll
Waggle Construction, Inc., hereinafter referred to as Waggle. Under the
contract, Waggle agreed to assemble and erect a Model No. 8200 Marion Dragline at the operator's Streamline Mine in accordance with blueprints and
other specifications to be provided by the operator. The operator reserved
the right to make changes in the drawings and specifications. Waggle was
obligated to provide all labor and supervision and all tools except that
the operator agreed to provide all welding machines, torches, grinders, air
motors, and derrick or crawler cranes (Operator's Br., Exh. 1, pp. 1-3).
3. Waggle was obligated under the contract to provide a competent foreman or superintendent, satisfactory to the operator, at the site of the work
at all times and Waggle was obligated under the contract to enforce strict
disc.ipline and good order among its employees (Op. Br., Exh. 1, p. 3). The
contract provided that Waggle should complete the assembly and erection of
the dragline within a period of 14 months after sufficient material had been
received at the erection site for work to begin. The operator agreed to provide (1) a graded and drained erection site at the Streamline Mine, (2) an
all-weather access road to the erection site, and (3) a railroad spur and
unloading area for unloading dragline component~, other equipment, and supplies (Op. Br., Exh. 1, pp. 4 & 5). Waggle was obligated under the contract
to perform all work on a "cost-plus" basis and the operator reserved the
right to inspect, audit, and make photocopies of all of Waggle's records
(Op. Br., Exh. 1, p. 7). Under the contract, Waggle could not subcontract
any work without obtaining the operator's express permission in writing (Op.
Br., Exh. 1, p. 9). Waggle was obligated under the contract to reimburse
the operator for any claims, damages, or lawsuits arising from the assembly
of the dragline, including any claims or expenses arising under the Federal
Coal Mine Health and Safety Act of 1969, as amended (Op. Br., Exh. 1, p. 10).
Waggle was obligated under the contract to take all necessary precautions
for the safety of employees and to comply with all applicable provisions of
Federal, State, and local safety laws and building codes to prevent accidents or injuries to persons on or about or adjacent to the premises where
the work was being performed (Op. Br., Exh. 1, p. 12) .
•
4. An MSHA inspector on January 9, 1979, went to the operator's
Streamline Mine and advised the operator's safety director, Mr. Allan Byrd,
that he would be making an inspection at the site where Waggle was assembling
the Marion dragline (Tr. 9). The inspector then went to the construction
site office where he examined Waggle's preshift and accident reports. The
inspector was accompanied on his examination of the construction site by

457

Waggle's safety representative, Mr. Sam Higgerson, and the UMWA's safety
representative (Tr. 10).
S. When the inspector was about 40 feet northwest of the dragline, he
observed two of Waggle's employees at a point about midway of the boom. When
the inspector first saw the workmen, they were about 220 feet from him. It
appeared to the inspector that one of the employees was cutting metal with
an oxygen-acetylene torch while the other watched or assisted in the cutting
operation. The inspector started walking toward the men to determine whether
they were wearing safety goggles. The man who was doing the actual cutting
-was wearing goggles, but the man who was watching the cutting operation was
not wearing goggles. When the inspector was between 100 and 10 feet from
the men, he calculated that the face of the man without goggles was within
2-1/2 feet of the cutting torch. The workmen did not realize that the
inspector was in their vicinity until he was about 10 feet from them. At
that time, they stopped working and turned to face the inspector (Tr. 12;
29; SS; 63; 86; Exhs. Band C).
6. The inspector learned from Waggle's construction site representative that the name of the workman who was observing the cutting process
was Mr. Doug Hepp. The inspector advised Mr. Higgerson, Waggle's safety
representative, that Mr. Hepp was in violation of section 77.1710(a) which
provides "[p]rotective clothing or equipment and face-shields or goggles
shall be worn when welding, cutting, or working with molten metal or when
other hazards to the eyes exist." The inspector wrote Citation No. 771428
at 11:30 a.m., citing the operator for a violation of section 77.1710(a)
because (Tr. 12; Exh. 2):
Doug Hepp, a classified welder, was observed assisting
another welder in cutting out pieces of metal from a section
of 1-1/2" plate. Mr. Hepp's eyes were within 2-1/2 feet from
the cutting tip and he was not wearing any eye protection.
The violation occurred in the boom area of the 8200 Dragline
on the construction site. Mr. Hepp was under the supervision
of Ralph Gaither.
7. Although Mr. Hepp testified that he keeps goggles in his tool
box and wears them when he is cutting with a torch, it was necessary for
Mr. Hepp to go to the welding shanty and procure a pair of goggles after
he was cited by the inspector for not wearing them (Tr. 80-81). Both
Mr. Horton, who was doing the cutting when Citation No. 771428 was
written, and Mr. Hepp testified that Mr. Hepp was standing behind
Mr. Horton while metal was being cut (Tr. 68; 76). Faggle provided the
goggles used by its workers and Waggle always had plenty of goggles at
the construction site (Tr. 81-82).
8. A master mechanic employed by the operator presented a diagram of
a Model 8200 Marion dragline and testified that, in his opinion, it would
have been difficult for the inspector to have determined from a distance
of approximately 220 feet that Mr. Hepp's face was within 2-1/2 feet of

458

the tip of the cutting torch (Tr. 63). The master mechanic also testified
that there were two. buildings in the general area where the inspector was
standing at the time he claims to have seen Messrs. Horton and Hepp working. The master mechanic expressed the opinion that the two buildings
might also have obstructed the inspector's view of the place where
Messrs. Horton and Hepp were working (Tr. 63). The master mechanic, however, was not present when the inspector made the investigation which
resulted in the issuance of Citation No. 771428 (Tr. 66). Messrs. Horton
and Hepp also expressed a belief that the inspector would not have been
able to tell how close Mr. Hepp was to the cutting torch when the inspector was 220 feet from the cutting operation (Tr. 69; 77).
9. The inspector gave Waggle a period of 5 minutes within which to
abate the violation of section 77.1710(a) and the violation was abated
within the time allowed. Therefore, the inspector was of the opinion that
the operator had shown a good faith effort to achieve rapid compliance (Tr.
19; Exh. 2).
10. The danger associated with Mr. Hepp's failure to wear goggles lies
in the fact that a piece of molten metal could have flown up from the cutting
torch and could have caused a serious eye injury (Tr. 15). The inspector
believed that the operator had tried to the best of its ability to get all
employees to wear protective eyewear (Tr. 17-18).
11. The inspector stated that it was MSHA's policy to cite the operator for violations attributable to work performed for an operator by an independent contractor. At the time the inspector wrote Citation No. 771428, he
was solely concerned with bringing about compliance with section 77.1710(a)
rather than with a question of whether he shoul4 have written the citation
in the name of Waggle, instead of the operator of the Streamline Mine (Tr.
42-43). The inspector was aware of the fact that the Secretary has published some proposed regulations governing the issuance of citations or
orders in the name of independent contractors and he recognized that MSHA's
policy of citing the operator for violations committed by independent contractors might have to be revised after the regulations have been finalized
(Tr. 49).
'Th.e Issue of Whether the Operator or Waggle Should Have Been Cited
In its brief (pp. 6-7), the operator correctly notes that all of the
persons working at the construction site were employees of Waggle except for
a construction superintendent who was employed by the operator to make sure
that Waggle was conforming with the operator's blueprints and specifications
for assembly of the dragline. The operator argues that Waggle was in the
best position to control health and safety matters and that there is no
justification to allow MSHA to carry out its policy of administrative convenience in citing operators rather than independent contractors who are in
actuality responsible for violations.
MSHA's brief (pp. 9-10) appropriately cites the inspector's statement
that he had issued the citation in the name of the operator because it was

459

MSHA's policy to cite operators for violations committed by an independent
contractor's employees pending such time as the Secretary finalizes his
proposed regulations governing the procedures to be used for citing independent contractors (Finding No. 11, supra).
The Commission has so far upheld MSHA in citing operators for violations committed by independent contractors (Secretary of Labor v. Republic
Steel Corporation, 1 FMSHRC S; Secretary of Labor v. Kaiser Steel Corporation, 1 FMSHRC 343; Secretary of Labor v. Consolidation Coal Company,
1 FMSHRC 347; Secretary of Labor v. Old Ben Coal Company, 1 FMSHRC 1480;
and Secretary of Labor v. Monterey Coal Company, 1 FMSHRC 1781). In the
Old Ben case the Commission noted, however, that MSHA's policy of citing
operators for independent contractors' violations should be an interim
policy and that if MSHA unduly prolongs that interim policy, intead of
implementing direct enforcement procedures against the independent contractors, MSHA "* * *will be disregarding the intent of Congress"
(1 FMSHRC at 1486).
The Commission's decision in the Old Ben case, supra, was not issued
until 20 days after the hearing in this proceeding was completed. In the
Old Ben case, the Commission held that citing an operator for contractor
violations solely as a mere administrative expedient would be an abuse.
The inspector was specifically asked on cross-examination if he had cited
the operator for the contractor's violation as an administrative convenience. The inspector denied that he had cited the operator for mere convenience and stated that he had cited the operator in this instance because
that was MSHA's policy (Tr. 42-43). Subsequently, the inspector stated
that he was aware that regulations pertaining to citing independent contractor·s had been proposed and that he was aware that MSHA' s policy of
citing the operator would probably have to be changed after those regulations have been finalized (Finding No. 11, supra). In such circumstances,
I find that the inspector's citing of the operator for Waggle's violation
was permissible in this case and that MSHA's Petition for Assessment of
Civil Penalty filed in this proceeding should be upheld as a proper way
to proceed under the 1977 Act at the time Citation No. 771428 was issued.
The Issue of Whether MS'HA Proved that a Violation Occurred
The operator's brief (pp. 3-6) contends that the inspector's testimony
was not sufficiently probative to establish that a violation of section
77.1710(a) actually occurred. The operator bases its contention that no
violation was proven on two primary arguments. First, the operator claims
that the inspector was unable to give sufficient details about the actions
of Mr. Hepp to establish that Mr. Hepp was assisting another welder in
cutting pieces of metal, as was alleged in Citation No. 771428.
It is true that the inspector did not know precisely what Mr. Hepp was
doing. The inspector said that Mr. Hepp (1) could have been merely observing
the other welder cut the metal, (2) could have been picking up fallen pieces
with a pair of tongs, or (3) could have been marking metal. The inspector

460

candidly conceded that although Mr. Hepp might have been doing any of the
aforementioned acts, he could not recall the exact nature of Mr. Hepp's
assistance. The inspector said that all he was really claiming was that
Mr. Hepp was so close to the cutting torch that he should have been wearing
goggles (Tr. 45).
Mr. Hepp corroborated the inspector's statement by testifying that both
he and Mr. Horton had been told to cut pieces of metal from a large section
of plate. Mr. Hepp stated that he had assisted Mr. Horton in marking the
pieces before they were cut. Mr. Hepp further said that although both he
and Mr. Horton normally would cut and weld each day, he did not recall that
he had personally done any cutting on January 9, 1979, prior to the time
that the citation was issued (Tr. 80; 83).
Mr. Horton also corroborated the inspector's testimony by stating that
Mr. Hepp was helping him mark the pieces of metal for cutting (Tr. 68).
Therefore, I find that the preponderance of the evidence support.s the
inspector's statement in Citation No. 771428 to the effect that Mr. Hepp
was "* * * assisting another welder in cutting out pieces of metal" (Finding Nos. 6 and 7, supra).
The second argument made in the operator's brief (p. 4) is that the
inspector could not have determined that Mr. Hepp's eyes were only 2-1/2 feet
from the torch while the inspector was 220 feet away, particularly when consideration is given to the fact that two buildings were situated some place
between the inspector and the site where the cutting was being done.
A distance of 220 feet is less than the length of a football field.
Yet it is easy for a spectator with normal visiqn at a football game to tell
when a player at the most remote part of the field is lying on the ground or
running or catching a pass. I find that the inspector made a credible statement when he said he could determine from a distance of about 220 feet that
Mr. Hepp was kneeling beside the man who was using the cutting torch. Moreover, it should be recalled that the inspector stated that he first observed
the workmen when he was about 220 feet from them. He then said that while
he was walking toward the men, he made his determination that Mr. Hepp's
eyes were about 2-1/2 feet from the cutting torch. It is unreasonable for
the operator to argue that the inspector should be able to specify the exact
distance he was from Mr. Hepp when he made his determination that Mr. Hepp's
eyes were 2-1/2 feet from the cutting torch. The inspector said that
Messrs. Hepp and Horton did not realize that he was approaching them until
he was about 10 feet from them. It is certain that the inspector would
have been able to determine at some point before he was within 10 feet of
the men that Mr. Hepp's eyes were within 2-1/2 feet of the cutting torch.
The inspector's last statement on the subject was that he did not think
that he made his determination that Mr. Hepp's eyes were within 2-1/2 feet
of the torch at a distance of 220 feet, but he is certain that he was able
to make that determination by the time he reached the 10-foot distance when
the men stopped cutting and turned to face the inspector (Tr. 87-88).

461

The most that the operator's witnesses said about the inspector's
ability to determine the 2-1/2-foot distance was that it would have
been hard for the inspector to determine at a distance of approximately
220 feet that Mr. Hepp's eyes were within 2-1/2 feet of the cutting torch
(Finding No. 8, supra). None of the operator's witnesses were asked to
give an opinion as to whether the inspector could have made that determination when he was somewhere between 100 and 10 feet from the men. I
find that the preponderance of the evidence supports a finding that the
inspector made a credible statement when he said that he was able to
determine that Mr. Hepp's eyes were within 2-1/2 feet of the cutting
torch.
The operator's brief (pp. 5-6) also contends that its witnesses' testimony to the effect that Mr. Hepp always stood behind Mr. Horton when
Mr. Horton was cutting is more credible than the inspector's testimony to
the effect that Mr. Hepp was kneeling down and was within 2-1/2 feet of
the torch while Mr. Horton was cutting. The operator's brief cites
Mr. Horton's statement that Mr. Hepp stood to the rear of Mr. Horton
while Mr. Horton was cutting. Mr. Horton also claimed that while he was
cutting, Mr. Hepp was not engaged in marking the metal (Tr. 68; 71; 74).
The operator's brief also cites Mr. Hepp's testimony to the effect that
he always stood up and turned around when Mr. Horton started cutting with
the torch. Mr. Hepp also testified that he was about 5 feet 7 inches
tall and that his face was about 6 or 7 feet from the cutting torch when
Mr. Horton was cutting (Tr. 76; 84).
'!be operator's brief (p. 6) additionally argues that the inspector's
inability to be certain as to details is fatal to MSHA's case. In order for
the inspector's lack of certainty as to what Mr. Hepp was doing to be fatal
to MSHA's case in this proceeding, the lack of certainty would have to bear
directly on the nature of the violation charged. The inspector was certain
as to the vital point necessary for his testimony to support his allegation
that a violation of section 77.1710(a) occurred, namely, the inspector said
that he was certain that Mr. Hepp's eyes were close enough to the cutting
torch to make it essential for him to wear goggles in order to protect his
eyes from possible injury (Tr. 45). Moreover, as I have previously indicated above, the inspector's inability to know what Mr. Hepp had been doing
before he came within the inspector's scrutiny did not prevent the inspector from correctly concluding that Mr. Hepp had unnecessarily exposed himself to the hazard of a possible eye injury by kneeling down close to the
cutting torch.
As to the operator's credibility arguments, I find, for at least two
reasons, that the inspector's testimony was more credible than that of
Mr. Hepp. First, it should be recalled that Mr. Hepp testified that when
Mr. Horton began cutting with the torch, he stood up and turned around
(Tr. 76). At no time did Mr. Hepp ever deny that the inspector was within
10 feet of him before he realized that the inspector was in his vicinity.
If Mr. Hepp had actually stood up and turned around while Mr. Horton was
cutting with the torch, Mr. Hepp would have been in a position to see the

462

inspector approaching and would have been able to assert when the inspector
cited him for failing to wear goggles that he was not even looking in the
direction of the cutting torch, must less close enough to be injured by
flying bits of molten metal.
The second reason for downgrading the credibility of Mr. Hepp's testimony is that Mr. Hepp testified that it was his practice to cut and weld
every day that he was at the construction site. He stated that when he did
cut or weld that he always wore goggles or an eye-shield. He further said
that he kept his goggles in his toolbox. Despite Mr. Hepp's assertion that
he kept his goggles in his toolbox, it was necessary for Mr. Hepp to go to
the welding shanty in order to obtain goggles when he was cited by the
inspector for failure to wear goggles (Tr. 80-81). If Mr. Hepp had been
accustomed to wearing goggles when he was cutting, it is very unlikely that
he would have had to go all the way to the welding shanty to procure goggles
when his supervisor asked him to get them.
Finally, the operator's brief claims that MSHA could have produced
other witnesses to substantiate the inspector's claim as to the 2-1/2-foot
distance and to fill in other details lacking in the inspector's testimony.
The choice of witnesses was a defect which was more apparent in the operator's presentation than it was in MSHA's. The inspector stated that
Waggle's safety representative, Mr. Sam Higgerson, was with him at the time
he observed Mr. Hepp violating section 77.1710(a) (Finding No. 4, supra).
Yet the operator tried to cast doubt on the inspector's ability to see the
cutting operation from a distance of 220 feet by bringing in a witness who
was not even with the inspector at the time the violation was observed.
Clearly, the only person who could have placed a real cloud of doubt over
the inspector's testimony would have been another person who was standing
at the same place the inspector was standing when the inspector first
observed the cutting operation. The operator's failure to present
Mr. Higgerson as a witness is a strong indication that Mr. Higgerson was
also able to see Messrs. Horton and Hepp at a distance of 220 feet. Moreover, Mr. Higgerson would have been able to draw a diagram showing the
exact location of the two buildings which were allegedly close to the west
end of the dragline and Mr. Higgerson would have been able to state with
certainty whether the inspector was standing in a place where the buildings
would have blocked his view of the boom area where the cutting operation
was in progress.
Based on my credibility determinations and the foregoing discussion, I
find that the preponderance of the evidence shows that a violation of section 77.1710(a) occurred. It is now necessary to consider the six criteria set forth in section llO(i) of the Act to determine what civil penalty
is appropriate.
Size of the Operator's Business
On the basis of the facts set forth in Finding No. 1, supra, I find
that Southwestern Illinois Coal Corporation is a large operator and that

463

any penalty assessed in this proceeding should be in an upper range of
magnitude insofar as it is based on the criterion of the size of the operator's business.
Effect of Penalties on Operator's Ability To Continue in Business
Counsel for the operator did not present any evidence at the hearing
with respect to the operator's financial condition. In Buffalo Mining Co.,
2 IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the
former Board of Mine Operations Appeals held that when a respondent fails to
present any evidence concerning its financial condition, a judge may presume
that payment of penalties would not cause respondent to discontinue in business. In the absence of any specific evidence to the contrary, I find that
payment of penalties will not cause the operator to discontinue in business.
History of Previous Violations
Counsel for the operator and MSHA introduced at the hearing as Exhibit
No. 1 some data which the Assessment Office used in this proceeding to
arrive at a determination that the operator's history of previous violations
would result in assignment of 8 points for the purpose of determining penalties in accordance with the procedures set forth in 30 CFR 100.3. The Commission held in Secretary of Labor v. Shamrock Coal Co., 79-6-5, 1 FMSHRC
469, that a judge is not bound by the procedures used by the Assessment
Office in determining penalties and that de novo assessments are within the
authority of the Commission and its judgeS:- When I am considering motions
for approval of settlements, there is reason for me to review the Assessment
Office's findings as to the number of points which have been assigned under
the six criteria. In a contested case, however, I would prefer that counsel
for MSHA introduce a listing of respondent's actual previous violations, if
any, so that I can make findings regarding the criterion of history of previous violations without having to examine the findings of the Assessment
Office.
Normally, I increase penalties when there is evidence before me to show
that a given operator has previously violated the same section of the regulations which is charged in MSHA's Petition for Assessment of Civil Penalty
in the case under consideration. In this case, the parties stipulated that
the operator has not previously violated section 77.1710(a). Therefore, I
find that respondent has no history of previous violations which has to be
considered when a penalty is assessed for the violation of section 77.1710(a)
which is before me in this proceeding.
Good Faith Effort To Achieve Rapid Compliance
Citation No. 771428 gave Mr. Hepp a period of 5 minutes within which to
procure goggles. Mr. Hepp was able to obtain goggles within the time given
and the inspector terminated the citation 5 minutes after it had.been issued.
It was the inspector's opinion that a good faith effort to achieve rapid
compliance had been shown (Tr. 19). Therefore, I find that a good faith

464

effort to achieve rapid compliance was made and the operator will be given
full credit for that mitigating factor in the assessment of a penalty.
Negligence
Counsel for MSHA introduced as Exhibit No. 3 a form on which the inspector had indicated his views with respect to the criteria of negligence and
gravity. On Exhibit No. 3, the inspector checked a box which states that
"[t]he condition or practice cited could not have been known or predicted;
or occurred due to circumstances beyond the.operator's control." At the
hearing, the inspector testified that the operator had tried to the best of
its ability, short of discharging employees, to get the workers to wear protective eyewear (Tr. 18).
I find on the basis of the evidence in this proceeding that the violation of section 77.1710(a) was accompanied by a low degree of negligence.
Gravity

On the basis of Finding No. 10, supra, I find that the violation was
moderately serious. The piece of metal which was being cut with the torch
was supported by two crib blocks so that the molten metal would drop to the
ground (Tr. 73). In such circumstances, there was not a very strong likelihood that Mr. Hepp would have received a severe injury because of his
failure to wear goggles.
Assessment of Penalty
'Ihe inspector made the following recomrnend~tion with respect to the
assessment of a penalty (Exh. 3, p. 2):
On this particular site, management has repeatedly
attempted to enforce safe working habits. Some employees,
however, attempt to circumvent the using of protective
equipment. Although management is ultimately responsible
for violations, I feel that in this case leniency should
be exercised when assessing the penalty. It is impossible
for management to accompany and supervise each employee
every minute of the day.
Exhibit 1 indicates that the Assessment Office proposed a penalty of
$84.oo for the violation of section 77.1710(a) here involved. MSHA's brief
(p. 11) requests that a penalty of not less than $84.00 be assessed. As
indicated above, I am not bound by the Assessment Office's recommended penalties, but my findings must be based on the evidence presented by the parties. The inspector testified that the operator was not negligent and
the inspector made a special plea for leniency in the assessment of the
penalty. The facts show that the violation was only moderately serious.
In such circumstances, I find that the penalty of $84.00 proposed by the
Assessment Office is fair and reasonable in light of the evidence presented
by the parties in this proceeding.

465

Findings and Conclusions
(1) Under the facts in this proceeding and current Commission precedents, MSHA's Petition for Assessment of Civil Penalty should be sustained
in citing respondent for the independent contractor's violation of section
77. l 710(a).
(2) Southwestern Illinois Coal Corporation should be assessed a penalty of $84.00 for the violation of section 77.1710(a) alleged in Citation
No. 771428 dated January 9, 1979.
(3) As the operator of the Streamline Mine and controller of the erection site involved in this proceeding, Southwestern Illinois Coal Corporation is subject to the Act and to all regulations promulgated thereunder.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, Southwestern Illinois
Coal Corporation shall pay a penalty of $84.00 for the violation of section
77.1710(a) alleged in Citation No. 771428 dated January 9, 1979.

~ C. <;$;tAD?/

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

Miguel J. Carmona, Esq., Attorney for Secretary of Labor, Office
of the Solicitor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)
Brent L. Motchan, Esq., Attorney for Southwestern Illinois Coal
Corporation, 500 North Broadway, St. Louis, MO 63102 (Certified
Mail)

466

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

fEB \ 4 1980

ALABAi\fA BY-PRODUCTS
CORPORATION,

Contest of Citation
Petitioner

Docket No, SE 80-41-R

v.
Mary Lee No. 2 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
DECISION AND ORDER GRANTING
MOTION FOR SUMMARY DECISION
On December 12, 1979, Petitioner was issued Citation No. 748714 which
alleged a violation of section 103(f) of the Federal Mine Safety and Health
Act of 1977, JO U,S,C. § 813(f) (hereinafter the Act), That section provides
that miners may accompany inspectors on mine inspections and suffer no loss
of pay, 1/ On December 19, 1979, Petitioner filed a notice of contest of
that citation which contended that it had not violated section 103(f) of the
Act. Petitioner here moves for summary decision of its contest of citation.
1/ "Subject to regulations _;_ssued by the Secretary, a representative of
the operator and a representative authorized by his miners shall be given
an opportunity to accompany the Secretary or his authorized representative
during the physical inspection of any coal or other mine made pursuant to
the provisions of subsection (a), for the purpose of aiding such inspection
and to participate in pre- or post-inspection conferences held at the mine.
Where there is no authorized miner representative, the Secretary or his
authorized representative shall consult with a reasonable number of miners
concerning matters of health and safety in such mine, Such representative
of miners who is also an employee of the operator shall suffer no loss of
pay during the period of his participation in the inspection made under
this subsection, To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from
each party would further aid the inspection, he can permit each party to
have an equal number of such additional representatives. However, only one
such representative of miners who is an employee of the operator shall be
entitled to suffer no loss of pay during the period of such participation
under· the provisions of this subsection, Compliance with this subsection
shall not be a jurisdictional prerequisite to the enforcement of any
provision of this Act."

467

Summary decision shall be granted "only if the entire record, including
the pleadings,· depositions, answers to interrogatories, admissions, and
affidavits shows: (1) that there is no issue as to any material fact; and
(2) that the moving party is entitled to summary decision as a matter of
law." 29 CFR 2700.64(b).
The facts in this case as outlined in Petitioner's affidavits are not
disputed by Respondent. On November 29, 1979, 12 MSHA inspectors conducted a
"blitz" inspection of Petitioner's mine. The inspection was not a "regular"
inspection of the mine under section 103(a) of the Act. Miners were permitted to accompany the inspectors but were not compensated for the time
they spent accompanying them.
The issue here is whether those undisputed facts constitute a violation
of Section 103(f) of the Act. In Secretary of Labor v. Helen Mining Company,
Docket No. Pitt 79-11-P (November 21, 1979 (appeal pending No. 79-2537 (D.C.
Cir., Dec. 21, 1979)), the Federal Mine Safety and Health Review Commission
(hereinafter Commission) held that section 103(f) requires payment to miner
representives accompanying inspectors only during "regular" inspections of
mines.
The case does not involve a, "regular" inspection of a mine. Pursuant to
the Commission's decision in Helen Mining, supra, the miners therefore are
not entitled to be compensated for the time they spent accompanying the
inspectors. Petitioner did not violate section 103(f) of the Act and is
therefore entitled to summary decision as a matter of law.
Accordingly, it is ORDERED that the motion for summary decision is
GRANTED, and the citation is VACATED.

Distribution:
J. Fred McDuff, Alabama, By-Products Corporation, P.O. Box 10246,
Birmingham, AL 35202 (Certified Mail)
H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner, Dumas & O'Neal,
1900 First National-Southern Natural Building, Birmingham, AL 35203
(Certified Mail)
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)
Harrison Combs, Esq,, UMWA, 900 Fifteenth St,, NW, Washington, DC 20005
(Certified Mail)
Murray Battles, Esq,, Office of the Solicitor, U.S. Department of Labor,
1929 9th Avenue, South Birmingham, AL 35205 (Certified Mail)

468

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

February 15, 1980
Civil Penalty Proceeding

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

Docket No. WILK 79-149-P
A.C. No. 36-02011-03001

Petitioner

v.
Stoudt's Ferry Preparation
Plant

STOUDT'S FERRY PREPARATION COMPANY,
Respondent

ORDER APPROVING SETTLEMENT AND
DIRECTING PAYMENT
On February 11, 1980, Petitioner filed a motion to approve a
settlement in the above-captioned proceeding. The Petitioner states
that the amount of the original assessment is $470 and the amount of
the settlement is $200.
As grounds for its motion, the Petitioner states that the citation
in question was issued for the operator's denial of entry to an authorized
representative for the purpose of conducting an inspection. The third
circuit, in Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d
589 (3rd Ai. 1979), determined that the company was covered by the Mine
Safety and Health Act and that MSHA has jurisdiction over its operations.
The Supreme Court denied certiorari. The company was not exercising bad
faith in denying entry. Petitioner further states that lack of negligence justifies a reduction in penalty.
Therefore, it is ORDERED that the motion to approve settlement is
GRANTED and Respondent is ORDERED to pay $200 within 30 days of the date
of this order.

J
'

Distribution:

tJ1'"-~'7 .dicck.-t/l~I__

James A. Broderick
Chief Administrative Law Judge

Donald Brobst, Esq., Attorney for Stoudt's Ferry Preparation Company,
Roseen, Jenkins & Greenwald, 15 South Franklin Street, Wilkes-Barre,
PA 18711
Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104
Dktl

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

469

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

FEB 1 9 1900

CLIMAX MOLYBDENUM COMPANY,
Applicant
v.

Application for Review
Docket No. WEST 79-325-RM

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

Citation No. 333105; 7/27/79
Climax Open Pit
DECISION

Appearances:

W. Michael Hackett, Esq., Richard W. Manning, Esq., Climax
Molybdenum Company, Golden, Colorado;
Robert A. Cohen, Esq., Michael Bolden, Esq., Office of the
Solicitor, Arlington, Virginia.

Before:

Judge Charles C. Moore, Jr.

At 4:30 p.m. on July 18, 1979, Terry Carter, a 28-year old miner, lost
his life in his M-120 Lectra-Haul haulage truck when 'it turned over while
coming down the road that leads from Ceresco Ridge to the crusher. Joint
Exhibit No. 1 1/ is a drawing of the area of the accident and has the victim's route from shoveling on Ceresco Ridge Road to the accident site marked
thereon. No one disputes the fact that the victim lost control of the haulage truck after passing the lower 835 curve and that he turned over about
2,000 feet farther down the hill in the vicinity of the K stockpile. As to
the cause of the accident, there is complete disagreement.
MSHA itself has two positions. The enforcement branch, that is the
inspectors and the Solicitor's Office, contend that the accident was caused
because both the dynamic brakes and the air hydraulic brakes failed and that
they failed because of poor maintenance practices and that management knew or
should have known of the condition of the brakes. An unwarrantable failure
order was issued by the inspectors. MSHA's technical support branch, however, conducted an extensive examination of the haulage truck after the
accident and concluded that both the dynamic brakes and the air hydraulic
brakes were functioning. The State of Colorado, on the other hand, says the
accident was caused by the poor training program conducted by Climax and
Climax contends that the accident was caused by the driver's failure to
operate the haulage rig and the two sets of braking devices properly.
1/

The exhibit is attached to this decision.

470

The two sets of brakes on the Lectra-Haul M-120 haulage rig are a standard air-over hydraulic mechanical braking system and an electric dynamic
retarding system. The air-over hydraulic system is sometimes referred to
in the testimony as the "air brakes" and sometimes as the "service brakes,"
but they are not intended to act as the normal slowing system. The instructions given to the drivers and contained in the operator's manual are that
unless there is an emergency, these brakes are not to be used when the
vehicle is moving in excess of 3 miles per hour. They can be engaged by a
foot pedal, by a knob on the instrument panel or by a lever on the floor.
If they are not engaged by the foot pedal, the system is referred to as
"dump brakes" (I gather from the testimony this is similar to parking
brakes) or emergency brakes, but regardless of how actuated, the system
involves air at a pressure in excess of 60 pounds per square inch actuating
the hydraulic system which applies hydraulic pressure to cylinders which
force brake pcuks (sometimes referred to in the testimony as "pads" or
"brake linings") against the disks which are affixed to the wheels. The
disks do not float laterally as in some braking systems where the hydraulic
pressure is applied from only one side, but are firmly fixed and hydraulic
pressure is applied from both sides of each disk. There are four disks in
the rear section of a Lectra-Haul truck, two disks for each set of dual rear
wheels. The devices containing the hydraulic cylinders and brake linings
are called "calipers" and there are four cylinders and two brake linings to
each caliper. One caliper is attached to each of the four disks in the
rear section of the truck and to each of the two disks in the front section
of the truck. These brakes would be damaged if used in excess of 3 miles
per hour, but there is no dispute that they are capable of stopping the
Lectra-Haul M-120 even if the dynamic braking system fails unless the rig is
being operated at a speed in excess of 30 miles per hour (see testimony of
Linda Knight).
The dynamic brakes are designed to slow the rig down to 3 miles an hour,
but will not actually stop it. The driving mechanism in this type of rig is
similar to a diesel electric locomotive. A diesel engine runs a generator
and the generator 'provides the power to operate the truck. There is an
electric motor for each rear dual wheel and when the dynamic retarding pedal
(a pedal similar to and located next to the air brake pedal) is depressed,
the electric motors in the wheels create some kind of magnetic retardation
that will slow the truck in ordinary circumstances to 3 miles per hour.
Several witnesses explained that when the dynamic retardation pedal is
pressed the electric motors turn into generators and generate electricity
which is dispersed into grids, thus slowing the truck. I have no idea what
that means or why dispersing electricity created by the generators would
slow the truck, but I suspect that the electricity is used to actuate an
electromagnet which acts against the movement of the rig. But in any event,
there was no dispute about the fact that, if working properly, the dynamic
system would slow the haulage rig to 3 miles per hour.
There were 30 of these Lectra-Haul M-120 rigs at Applicant's mine. The
No. 16 rig was the one in which Terry Carter lost his life on July 18, 1979,
and there was considerable testimony that this was a troublesome piece of

471

equipment. Truck driver Linda Knight testified that she had driven rig
No. 16 on several occasions and that the last time, on July 8, it had weak
dynamic brakes. She testified that she was bringing it down unloaded from
the Cirque Dump (see Joint Exhibit No. 1) on a route very similar to the
one that Terry Carter had taken on July 18, and that she had had to use full
dynamics to control the speed of the rig even though she had no load in the
hopper. There was some documentary evidence indicating she had not driven
the truck on July 8 but she was such an impressive witness that I believe
her testimony rather than the entries in the documents. Mr. Miller is a
truck driver trainer, that is, a truck driver who also trains new drivers.
He testified that he had driven rig No. 16 on occasion and that he found
the service brakes (air hydraulics) spongy and the dynamics bad. Carlos
Archuleta testified that he was assigned regularly to rig No. 16 and that
he had lost his dynamics approximately a month prior to the accident. He
used his air hydraulic brakes to control the truck at that time. He stated
that he did not like rig No. 16 because of the brakes and that he used
several excuses to refuse it during the month before the accident. On the
day of the accident when he heard that Terry Carter had been assigned to
rig No. 16, he made a hand motion to Mr. Carter to refuse to drive the rig.
Mr. Carter did not do so, however. Mr. William Harbuck testified that he
had driven rig No. 16 on July 13 and that he noticed leaky brake hydraulics,
poor suspension and weak dynamics. He had had to use his service brakes
to control his speed and did not want to drive rig No. 16 anymore. During
the accident investigation, however, the one conducted by MSHA shortly after
the accident, he stated that the dynamics on rig No. 16 were as good as
those of any of the other rigs. Truck driver Dries, on the other hand, who
was the driver of rig No. 16 immediately preceding the shift during which
the fatality occurred, stated that he was satisfied with rig No. 16 and that
he had made eight trips using the same route as the victim without trouble,
He did state, however, that because of a previous incident where a wheel fell
off of a rig, he was extremely conscious of speed and never exceeded what he
considered to be a safe speed with rig No. 16.
The haulage rigs at this mine are equipped with two-way radios so they
can inform the base coordinator of any problems and also so they can receive
instructions from the base coordinator as to what functions they are to perform and where they are to perform them, Shortly before the accident, evidently within 2,000 feet of the accident scene itself, Mr, Carter transmitted
a message to the base coordinator that he was having trouble with his dynamics, According to the base coordinator, Lee Heilman, he stated that he was
losing dynamics, She asked for his location and he replied "upper K." She
asked him if he could make it to the F stockpile and said that he replied in
the affirmative, According to Linda Knight, he said either "I'm losing
dynamics" or "I have lost dynamics," but she could not state exactly which
he had said. Mr. Miller heard Mr, Carter say "I lost my dynamics." He heard
someone else say "Hit your service brake" and then heard the statement "I
tried," Mr. Archuleta heard Mr. Carter say "Hello, base, I have lost my
dynamics." Then he heard something like "I can't 11 or "It won't work now,"
He did not hear the intervening conversation that would indicate what
Mr. Carter was referring to and no one has been able to identify who stated

472

"Hit your service brake." No witness indicated there was panic in
Mr. Carter's voice when he reported his service brake problem and while there
is obviously a difference between losing dynamics and lost dynamics, there is
no way to determine whether Mr. Carter had actually lost his complete dynamic
braking system or whether it was not performing to his satisfaction. He was
was obviously having trouble, but there was no indication that he was
frightened. Like many radio communications, all statements were not heard
in the same way by all of the people listening. A common feature of radio
communication is having a transmission cut out by anothe~ transmission for
one listener while another listener hears the original transmission intact.
Someone heard Mr. Carter ask if he could use the service brakes, meaning the
air hydraulic system. In a panic situation, I doubt that he would ask
permission.
Mr. Carter's location at the time he announced that he was losing or
had lost his dynamics, can be fixed with reasonable accuracy. The route he
was traveling from the No. 3 shovel (all of the areas which I am now discussing are depicted upon Joint Exhibit No. 1) to the accident scene involved
first negotiating a sharp curve known as the 835 upper curve. According to
Linda Knight, it was clear that his dynamics had been working when he
negotiated this curve or he could not possibly have made it. At the lower
835 curve, there is a road where, if the victim had been having trouble with
his brakes, he could have turned up hill and thus stopped. It is therefore
fairly clear that he had passed the lower 835 curve when he complained about
his dynamics. He told Coordinator Heilman that he was in upper K, but all
this means is that he was above the K stockpile where the accident occurred.
But the transmission must have been made shortly after the victim went over
the level spot at 835 lower curve and started down hill again on a grade
that is between 8 and 9 percent. The location can also be fixed by the fact
that Carlos Archuleta was driving the rig immediately preceding the one
driven by Mr. Carter and was in the vicinity of the K stockpile when he heard
the first transmission. H~ looked in his mirror and could not see rig
No. 16, but when he turned around and looked directly back over his shoulder,
he could see it and then when he turned ba~k to make sure that he was still
in the proper part of the road, he could pick up rig No. 16 in his mirror
and he observed it for a few seconds noting that it was going at an excessive rate of speed. There are lights on the front of these rigs which indicate whether the dynamic or air hydraulic braking systems are being actuated.
He did not see either of these lights on. It was later determined that the
lights are actuated by the pedals themselves and do not indicate whether the
braking system is actually working, but merely whether the pedals are being
depressed. It was also later agreed that sometime before the accident
Mr. Carter probably ceased his efforts to stop the truck and was preparing
to abandon it. The fact that the door was open at the time of the rollover
lends credence to this proposition. It is also supported by the fact that
pictures taken at the scene and the testimony as to the description of the
tire tracks indicate that the air hydraulic brakes were working at one point,
but that no braking was evident immediately before the area where the rig
struck the berm on the K stockpile. The photographs themselves are not convincing, but they do support the testimony that was given.

473

Inspector Stoutenger issued the first citation, but shortly after the
accident investigation began, he left town. Inspector Marti, who accompanied
Inspector Stoutenger during the initial field investigation at the scene of
the accident, after studying numerous records provided by the company,
amended the citation to charge an unwarrantable failure. 'l:../
Inspector Marti relied on the radio communication from the victim as
evidence of the failure of the dynamic brakes and he relied on his inspection
of the left rear d~al after the rig was righted as evidence that the air.
hydraulic brakes were not working. In issuing the modification to allege an
unwarrantable failure he relied on the maintenance records that he examined
for a total of about 40 hours as indicating that management knew or should
have· known that the brakes were defective.
There were a number of discrepancies between the two inspectors' testimony and the testimony of the company witnesses and they disagreed on the
interpretation of the photographs that were offered in evidence. There was
disagreement between the inspectors themselves as to when the photographs
were taken and as to whether the inspectors were present when the rig was
righted and when it was moved approximately 25 feet. There is disagreement
as to how some air may have gotten into the left dual wheel hydraulic system.
There is disagreement about whether damage was done to the braking system
when Applicant was moving the rig to the shop area, but it is clear that one
of the MSHA officials authorized the move.
It is also clear that there was some tampering with the rig after the
accident and before the physical investigation supervised by MSHA's technical
support staff commenced. The throttle control lever was found to be hooked
up improperly, in such a fashion that neither the dynamic braking system nor
the electrical tramming system would work. It was therefore obvious, since
the tramming system had worked during the climb to the No. 3 shovel and since
the dynamic braking system must have been working when the rig came around
the upper 835 curve, that someone for some reason'unhooked this particular
device and then reattached it in the wrong place. But no motive was speculated upon by either side and the wheels and other components were padlocked
to prevent tampering. In the absence of any indication as to the motive for
tampering or how such tampering could have affected the final results of the
inspection, I see no alternative but to disregard it. If the MSHA investigators or attorneys know something about this tampering that they did not
wish to present in evidence before me, they may wish to present it in a
criminal case, but since I have heard no evidence as to who did the tampering
or why it was done, it will not affect this decision.
2/ A key element of an unwarrantable failure citation is the absence of an
imminent danger. If a violation causes the death of a miner, how can it be
said that the violation did not create an imminent danger? The parties have
not addressed this issue, however, so I will not pursue it further.

474

There are many other troublesome factors involved in this case. For
example, batteries are important components of the dynamic braking system.
If they are not fully charged, the system will be impaired. When the truck
overturned, the battery electrolyte spilled and had to be replaced before
the technical support tear-down and investigation could be completed. Also,
since the rig had lost its air pressure as a result of the destruction of air
hoses in the accident, the service or air hydraulic brakes were mechanically
locked at the time the truck was righted.
In order to remove it to the shop, it was necessary to back off on some
nuts or bolts to release the spring pressure on the brakes because when all
air is lost or when it goes below 60 pounds per square inch, the brakes are
spring loaded to set automatically. Therefore, when the technical support
inspectors were preparing for their inspection, they had to reset the spring
loading bolts or nuts and thus were not inspecting the braking systems in
the exact condition in which they were at the time of the accident. The
technical support recommendation was that more care should be taken in the
future to avoid destroying evidence while moving a piece of equipment.
The technical support group nevertheless concluded that the dynamics
and air hydraulic systems were working properly. When Mr. McGuire of the
technical support group was testifying, there was an attempt to pin him down
as to whether he meant the brakes were operable on the day of the accident
or the day of the inspection and while he had apparently previously testified
during the initial investigation that they were operable on July 18, he
qualified this to say that they were operable on the date that he conducted
the inspection. I think that is all that he could properly testify to.
Inspector Marti relied on an entry in a document in Government Exhibit
No. 9 to show that a dynamic complaint about rig No. 16 on an earlier date
had been ignored. The entry on the document said "Could not fix, maybe next
time." When Applicant's first class electrician, Mr. Valverde testified,
however, and identified Applicant's Exhibit No. 12, it became absolutely
clear that before the rig left the shop, Mr. Valverde fixed the dynamics.
He did so by replacing one or more of the so-called "cards" which are in
fact devices containing a printed circuit on one side and various electrical
components such as condensors and transistors on the other side. These are
plugged in at various places in the electrical.system of the M-120 rig and
if certain ones heat up and fail, it affects the dynamics. Mr. Valverde
replaced the particular one that concerned stabilizing the current and it
appeared to work. He then tested the machine and released it. There was
evidence in the case that this was all explained to Inspector Marti, but
that he either ignored it or did not understand it, I noticed during the
trial that Inspector Marti did have some trouble understanding questions put
to him but I attribute this to the stress of being on the witness stand.
It is to this same stress that I attribute his erroneous statement that no
photographs were taken by MSHA after July 19 when it was perfectly obvious
that at least one of the photographs was taken after the truck had been
righted on July 20. His explanation was that he was talking about photographs he took and I believe him, but it was nevertheless his earlier

475

testimony that none of the MSHA officials had taken pictures of the rig at
the accident site after July 19 (Tr. 336). Inspector Stoutenger at first
stated that the pictures were taken on the 19th and that he was present when
the rig was uprighted. He later agreed that he was not present when the rig
was uprighted, but he was of the opinion that he and Inspector Marti had
examined the left rear dual brakes on July 19 sometime after 1:30. Inspector
Marti said that the examination had been on the next day and he is apparently
correct since the rig was not righted until July 20. All these factors I
attribute to the stress of being a witness, but in a case where both parties
have conducted extensive discovery and have reviewed their notes in a serious
manner, I am surprised that such discrepancies occurred.
There was testimony that rig No. 16's suspension system was so bad that
it "threw you all over the cab" when you were trying to drive it. There
were complaints about its steering. Either the suspension system or the
steering system may have caused Mr. Carter to lose control of rig No. 16,
but that is not the charge that the Government has brought in this case. It
has charged that he lost control of the rig because neither the dynamic
braking system nor the air hydraulic braking system was working and that
Climax knew or should have known that these systems were defective. I will
not speculate as to whether the State of Colorado or Climax have the correct
answer to the cause of this accident. There are certain facts, however, that
convince me that the ~ause was not the cause alleged by MSHA.
First, truck driver Dries had no trouble with either the dynamic system
or the air hydraulic system on the previous shift. Second, as testified by
Linda Knight, the dynamic system must have been working when rig No. 16
negotiated the upper 835 curve on the afternoon of the accident. Third, skid
marks on a portion of the distance between the lower 835 curve and the
K stockpile supported by the testimony of two witnesses that upon examining
the brakes during the technical support investigation, they found heat checks
and glazed cracks indicating extremely heavy use of the mechanical braking
system, and their further testimony that the components appeared to be almost
new (brake linings thicker than required, disks thicker than required and
calipers properly positioned) indicated to me that the air brakes were working. Fourth, two witnessess testimony that when the vehicle was righted and
pulled off the berm on July 20, the rear brakes were set and locked and
caused the tires to skid when the vehicle was moved. In addition, the
vehicle could not be moved to the shop without loosening the bolts or nuts
which are attached to the springloaded braking system. There was some evidence that Inspector Stoutenger saw company personnel attempt to move the
rig back up the hill, but that does not overcome the fact that the wheels
skidded when the attempt was made to move the vehicle forward; the direction
it was traveling at the time of the accident. I cannot ignore these facts
despite the sympathy I have for miners who may be driving rigs that they
consider unsafe. If the M-120 Lectra-Haul truck is inherently unsafe for
this type of mining operation MSHA should act to prohibit its use. In this
case, however, I cannot find that Applicant's maintenance procedures were
insufficient. I am also somewhat surprised that a complete autopsy was not
performed. Although I understand the examining physicians declared neither

476

drugs nor alcohol were involved in the accident, there was no investigation
as to whether a heart attack or other disabling condition could have
developed during the course of the accident.
The citation is VACATED.

Charles C. Moore, Jr,
Administrative Law Judge
Distribution:
W. Michael Hackett, Esq., Richard W. Manning, Esq., Climax Molybdenum
Company, 13949 West Colfax Avenue, Golden, CO 80401 (Certified Mail)
Robert A. Cohen, Esq., Michael Bolden, Esq., MSHA, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
John R. Tadlock, Esq., Oil, Chemical & Atomic Workers International
Union, 1636 Champa Street, Denver, CO 80202 (Certified Mail)
David A. Jones, Jr., President, Oil Chemical & Atomic Workers
International Union, Local No. 2-24410, P.O. Box 949, Leadville,
CO 80461 (Certified Mail)
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers International Local No. 1823, P.O. Box 102, Minturn, CO
81645 (Certified Mail)

477

..._
0

x

478

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

22041

fEB 1 9 1980

CONSOLIDATION COAL .COMPANY,
Applicant
v.

Application for Review

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

Ireland Mine

Docket No. WEVA 79-351-R

Respondent
DECISION
Appearances:

Michel Nardi, Esq. Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Applicant.
Barbara K. Kaufmann, Esq., Office of Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This a proceeding filed by Consolidation Coal Co. (hereinafter "Consol")
under section 107 (e) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 817(e), to vacate an order of withdrawal due to imminent danger
issued by a federal mine inspector employed by the Mine Safety and Health
Administration (hereinafter "MSHA") pursuant to section 107 (a) of the Act.
The parties filed prehearing statements and the case was heard in Pittsburgh,
Pennsylvania, on January 8, 1980.

479

This matter involves a "fall" or "sag" of a concrete floor supporting
an elevated conveyor belt in the preparation plant at the Ireland Mine.
Consol concedes that there was a structural failure but contends that it had
voluntarily corrected or abated the condition prior to the issuance of the
order of withdrawal.

Hence, Consol asserts that no imminent danger existed

at the time the inspector issued the order in question.
ISSUES
The general issue is whether the issuance of the order of withdrawal due
to imminent danger was proper.

The specific issue is whether the voluntary

correction or abatement of the. condition by the operator prior to the issuance of the withdrawal order precludes a finding of imminent danger.
APPLICABLE LAW
Section 107(a) of the Act, 30 U.S.C. § 817(a), provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c) to
be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer 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.

480

Section 3(j) of the Act, 30 u.s.c. § 802(j), states: '"imminent danger'
means 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."
STIPULATIONS
The parties stipulated the following:
1.

Ireland Mine is owned and operated by Applicant, Consolidation

Coal Company.
2.

Consolidation Coal Company and the Ireland Mine are subject to the

jurisdiction of the Federal Mine Safety and Health Act of 1977.
3.

The Administrative Law Judge has jurisdiction over this proceeding

pursuant to Section 105 and Section 107 of the 1977 Act.

4.

The inspector who issued the subject Order was a duly authorized

representative of the Secretary of Labor.

S.

A true and correct copy of the Subject Order was properly served

upon the operator in accordance with Section 107(d) of the 1977 Act.
6.

Copies of the Subject Order and Termination are authentic and may

be admitted into evidence for the purpose of establishing their issuance and
not for the truthfulness or relevancy of any statements asserted therein.
7.

The alleged violation was abated in a timely fashion and the

operator demonstrated good faith in attaining abatement.

481

8.

Consolidation Coal Company agrees that a violation of the cited

standard, 30 d.F.R. § 77.200 did exist on July 31, 1979.
SUMMARY OF THE EVIDENCE
The undisputed evidence shows that Consol operated a refuse conveyor
belt through a gallery in its coal preparation plant at the Ireland Mine.
The gallery in question was 23 years old and ran a distance of sixty feet
from one wing of the vlant to another on a grade which caused the gallery to
be elevated between 10 feet and 27 feet above ground.

The conveyor belt

carried refuse and the structure was hosed down twice a day.

The conveyor

belt was 30 inches wide and was contained in an 8-1/2-foot wide gallery
structure.

All four sides of ~hat structure were enclosed.

The floor of

the structure consisted of concrete reinforced with corrugated steel and
steel wire mesh.

On each side of the floor was a series of channels joined

by plates which gave the appearance of an I beam.

The channels were con-

nected to steel angle bars which formed the sides of the gallery.

The angle

bars were covered with Transite which enclosed the structure.
Sometime between 1:55 a.m. and 2:10 a.m. on July 31, 1979, a "fall" or
"sag" occurred in the gallery structure.

All witnesses agreed that approxi-

mately 15 feet of the 60-foot structure "fell" or "sagged" approximately
1 foot.

Shortly thereafter, Leon Heck, general foreman of the preparation

plant was called to the site.
about 2:30 a.m.

He testified that he arrived at the plant at

The conveyor belt was running but there was no material on

the belt at the time of the occurrence.

As to the structural failure

itself, Mr. Heck observed that the channels forming one joint of the bottom

482

I beam failed.

Six angle bars on each side of the structure separated from

the floor during the occurrence.

The area of the sag was identified as

beginning approximately 10 feet from one wing of the plant and extending for
a distance of approximately 15 feet.
ground outside the structure.

The sag was readily visible from the

The I beam, constructed out of channels and

cover plates, appeared to be bent.
Mr. Heck testified that after he inspected the structure he thought that
the condition was serious and he turned off the conveyor belt and called the
general superintendent of the mine.

Thereafter, a conference occurred

between Mr. Heck, the general superintendent, the master mechanic, and the
shop foreman.

It was agreed that a crib should be constructed under the

sagged area.

The conferees felt that the remainder of the structure had sta-

bilized.

Although Mr. Heck conceded that other angle bars were rusted or

deteriorated at the floor level, he thought that they were sufficiently
strong to support the remainder of the structure.
A work crew then constructed a crib out of 6-foot railroad ties.
top of the crib, 10 foot railroad ties were used.

At the

A hydraulic jack was used

to raise the structure 6-inches and lower it onto the crib.

Although the

inspector recalled seeing only one crib under the structure, Mr. Heck testified that a second smaller crib was constructed out of 30 inch railroad ties
and situated adjacent to the first crib.

Both cribs were constructed in

approximately two hours.
After the cribs were constructed, the miners expressed concern to
Mr. Heck about the possibility of Transite falling from the sides of the

483

structure and falling debris from a hole in the wall of the structure.
hole in the wall occurred when the structure sagged.

The

Mr. Heck agreed with

the miners and ordered that the area under and around the structure be roped
and "dangered off."

However, he left a walkway in the area under the struc-

ture so that miners could enter and leave the plant.
veyor belt were not "dangered off."

The gallery and con-

At approximately 7:30 a.m. a Consol

vice-president arrived at the site and ordered the employment of a structural engineer and contractor to determine what permanent repairs were necessary.

Upon completion of construction of the cribs and "dangering off" the

area under the gallery structure, _normal operations were resumed.
At approximately 9:30 a.m. on the morning of July 31, 1979, MSHA inspector, Kenneth Williams, arrived at the Ireland Mine to conduct a regular
inspection.

At that time, two members of the union safety committee

approached him, informed him that there was problem in the preparation
plant and asked him to inspect it.

These men informed him that the structure

containing the conveyor belt fell during the prior shift and that although
some repairs had been made, they were afraid of another fall. 'Thereupon, he
entered the preparation plant and inspected the interior of the gallery.
conveyor belt was operating.

The

He observed 20 angle irons on each side of the

structure which formed the walls.

Ten of these supports on the left side

were deteriorated and separated from the beam at floor level.

The walkway

on each side of the conveyor belt was covered with wet debris of up to 1 foot
in depth. The bottom support I beam appeared to be badly deteriorated as it
was rusty and corroded.

He entered the gallery from low side of the struc-

ture and he walked up to the high side on the left of the conveyor belt.

484

He

testified that he did.not cross over to the right of the conveyor belt but
that side appeared to be worse than the left side.

There is evidence that

two angle bars on the left side had been recently welded to the beam.

How-

ever, 10 other angle bars had deteriorated to the point that they were no
longer attached to the beam.

He spent approximately 20 minutes inside the

gallery and walked back and forth several times. He testified that he did not
feel safe inside the gallery but that he is exposed to hazards as part of his
job.
Upon completion of his inspection of the interior of the building,
inspector Williams went outside to complete his inspection.
the I beam supporting the structure was bent.

He observed that

The structure had sagged to a

depth of approximately 1 foot in an area extending for approximately 15 feet
of the 60-foot structure.

He observed one crib constructed out of railroad

ties which was under part of the sagged area but not totally supporting it.
The crib did not appear to eliminate the sag.

There may have been two cribs

close together but, if so, they gave the appearance of one crib.

He denied

the fact that the area under the structure had been "dangered off."

The con-

veyor belt was operating at this time and the gallery structure was visibly
vibrating.

Although some vibration can be expected for a structure housing

a conveyor belt, the inspector believed that the vibration he observed at
that time was excessive and abnormal.

He was afraid that the vibration

would cause the crib to shake loose and of a total collapse of the structure
due to its overall deteriorated condition.

Inspector Williams testified

that, "This is the worst deteriorated building that I've ever seen." If the
structure collapsed, it would result in death or serious injury to miners.
At that time he issued the order of withdrawal.

485

Consol called Leon Heck, general plant foreman, as its first witness.
Mr. Heck testified that when he arrived at the preparation plant at about
2:30 a.m. on July 31, 1979, he inspected the area that had sagged and concluded that the problem was serious and could not be corrected immediately,
He closed down the conveyor belt.

He observed that both ends of the struc-

ture were still tightly connected to the walls of the building,

Although he

agreed that many of the angle bars were deteriorated, he believed that there
was sufficient strength to support the structure.

He also believed that the

collapse was due to the deterioration and rusting of the gallery.

He made

no notes or drawings covering the number of angle bars that were separated or
deteriorated.

None of the miners complained to him about the safety of

operating the conveyor belt after the cribs were installed,

The only safety

concerns expressed by any of the miners related to a fear of falling refuse
from a 6 to 8 inch hole in the wall of the structure and falling Transite
from the wall itself.

Mr. Heck also testified that the conveyor belt was

closed down during part of inspector Williams inspection and that the inspector walked on both sides of the belt.
the inspector went outside,

Thereafter, it was reactivated when

Mr, Heck acknowledged the fact that the struc-

ture vibrated but stated that he had seen other galleries vibrate more than
the one in controversy here.

In any event, Mr. Heck stated his opinion that

the structure was not dangerous at the time the withdrawal order was issued.
Consol next called Alan T. Olzer, an inspector escort employed by
Consol, as a witness.

Mr. Olzer essentially corroborated the testimony of

Mr. Heck and added his opinions that the structure appeared to be stable
prior to the arrival of the inspector and that he didn't believe anyone
would be seriously injured,

486

The withdrawal order was terminated at 5:00 p.m. on July 31, 1979, after
another crib was erected in the middle of the structure and two 85 pound
rails were erected and welded under the higher side of the structure.

On

direct examination, Mr. Heck testified that the structure was subsequently
replaced.
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of counsel
have been considered.

The evidence shows that in the early morning hours of

July 31, 1979, the elevated structure housing the refuse conveyor belt at
Consol's Ireland Mine failed.

At a point approximately 20 feet above ground

level, the concrete floor of the structure "fell" or "sagged" about 1 foot
for one quarter of the length of the structure.

The initial status of this

condition was described by Consol's general plant foreman as serious.

After

consultation with other Consol employees, it was decided to support the
structure by constructing two cribs under the structure.

One crib was con-

structed out of 6 foot railroad ties and the adjoining crib was constructed
out of 30-inch railroad ties.

Since the overall appearance of the cribs was

that of a single crib, I do not find any significant inconsistency in the
inspector's testimony that he saw only one crib.
The issue is whether an "imminent danger" existed after Consol completed
voluntary repairs.

It should be noted that for the purposes of this case,

the definition of "imminent danger" in section 3(j) of the 1977 Act is
identical to the definition of that term in the same section of the 1969

487

Federal Coal Mine Health.and Safety Act.

Therefore, it is appropriate to

look to decisions of the Circuit Courts and the Interior Board of Mine
Operations Appeals which have construed that term.
The Interior Board of Mine Operations Appeals, in a decision affirmed
by the Seventh Circuit Court of Appeals, construed "imminent danger" as
being a situation in ·which "a reasonable man would estimate that, if normal
operations designed to extract coal in the disputed area should proceed, it
is at least just as probable as not that the feared accident or disaster
would occur before elimination of the danger."

Freeman Coal Mining Company,

2 IBMA 197, 212 (1973), aff'd Freeman Coal Mining Company v. Interior Board
of Mine Operations Appeals,

504 F.2d 741, 745 (7th Cir. 1974).

In a case involving an imminent danger order, the Fourth Circuit Court
of Appeals stated:

"[t]he Secretary determined and we think correctly,

that 'an imminent danger exists when the condition or practice observed
could reasonably be expected to cause death or serious physical harm to a
miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated."'

Eastern Associated Coal

Corporation v. Interior Boa~d of Mine Operations Appeal, 491 F.2d 277, 278
(4th Cir. 1974), aff'g Eastern Associated Coal Corporation, 2 IBMA 128
(1973).

See also Old Ben Coal Corporation v. Interior Board of Mine

Operations Appeals, 523 F.2d 25 (7th Cir. 1975).
In UMWA District No. 31 v. Clinchfield Coal Company, 1 IBMA 31 (1971),
the coal mine operator asserted that since it had voluntarily closed its
mine prior to the issuance of an order of withdrawal, the order was of no

488

moment.

This argument was rejected by the Board which stated, "The purpose

of a withdrawal order is not only to remove the miners but also to insure
that they remain withdrawn until the conditions or dangers have been eliminated."

Id. at 41.

In Eastern Associated Coal Corporation, 3 IBMA 303, 305 (1974), the
Interior Board of Mine Operations Appeals held that "initiation of the
abatement process on a voluntary basis, while laudable, does not in itself
preclude the issuance of a section 104(a) [now section 107(a) under the 1977
Act] closure order where an inspector observes a condition or conditions constituting imminent danger, as that term is defined in the Act."
In the instant case, Consol had completed its voluntary temporary
repairs to the gallery structure prior to the arrival of the MSHA inspector.
The question to be decided is whether the condition of the structure, as
repaired by Consol, constituted an imminent danger at the time the order of
withdrawal was written.

However, in order to properly evaluate the volun-

tary repairs, the underlying condition must be assessed.

The undisputed

evidence shows that there was a failure, "fall", or "sag" of the floor of an
elevated structure at a coal preparation plant.

This failure was initially

evaluated by Consol's general plant foreman as serious.

He ordered tempo-

rary repairs prior to an assessment by an engineer and a contractor whose
employment was authorized by a Consol vice-president.

The general plant

foreman conceded that the failure was caused by deterioration and rusting
inside the structure.

Although two angle bars had been welded to the I beam

after the failure, he admitted that there was additional-deterioration to
other joints of angle bars and the I beam.

489

Inspector Williams was more

precise in his testimony that of the 20 angle bars on the left side of the
structure, half were deteriorated to the point that they had separated from
the I beam on the floor.

The cribs which had been constructed voluntarily by

Consol did not fully support the sagged area.

Inspector Williams testified

to excessive vibration which was visible from ground level.

During the

initial failure, the wall of the structure broke causing a hole to open in
the wall.

There was a danger that refuse from the conveyor would fall

through this hole.
wall might fall.

There was further danger that pieces of the Transite
Inspector Williams testified that he believed the excessive

vibration combined with the deteriorated condition of the structure could
result in a total collap~e.

He did not believe that the cribbing constructed

by Consol would prevent such a·collapse.
It is conceded that in normal operation of the plant, employees frequently are inside and under the structure.

Consol agrees that it did not

"danger o~f" the interior of the structure but asserts that it "dangered
off" most of the area underneath the structure.

However, it concedes that a

walkway was maintained through the "dangered off" area so that miners could
enter and leave the plant.

Whether Consol "dangered off" the area as it

alleged is not dispositive of the instant case.

This is so because the test

to be applied is whether "the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal
mining operations were permitted to proceed in the area before the dangerous
condition is eliminated."

(Emphasis supplied.)

Eastern Associated Coal

Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277, 278

490

(4th Cir. 1974).

Thus, ."if normal mining operations were permitted to pro-

ceed in the area," :niners going under the structure would be exposed to
debris falling from a height of approximately 20 feet.
The evidence establishes that a sudden and unexpected structural failure
occurred in the early morning of July 31, 1979 at the Ireland Mine preparation plant.

Consol voluntarily made some interim repairs pending a subse-

quent study by an engineer and a contractor.
the condition of the structure was as follows:

After completion of the repairs
(1) ten of twenty welds

between the angle bars and the beam on the left side of the gallery were
broken; (2) the interior of the gallery was deteriorated and rusted; (3)
there was a hole in the side wall of the gallery through which refuse from
the conveyor could drop for a distance of twenty feet to the ground; (4)
there was excessive vibration of the structure when the conveyor was operating; and (5) miners were required to be in and under the structure during
normal mining operations.
The MSHA inspector testified that the structure in question was the
worst deteriorated one that he had seen.

Because of the overall poor con-

dition of the structure, the excessive vibration during operation, and the
failure of the voluntary repairs to provide adequate support, he concluded
that an imminent danger existed.
mony to rebut these charges.

Consol did not present any expert testi-

Its primary witness, Leon Heck, testified that

he had experience as an electrician but not as a construc.tion engineer.
While Leon Heck and Alan Olzer testified that, in their opinion, the crib
which Consol constructed provided adequate support for· the structure, I find

491

that the physical facts .support the opinion of the MSHA inspector that it
was just as likely as not that death or serious physical harm would occur
due to a total collapse of the structure or from falling debris.
In conclusion, I find that MSHA has established, by a preponderance of
the evidence, that an imminent danger existed at the time the order of withdrawal was issued.
ORDER

WHEREFORE, IT IS ORDERED that the Application for Review is DENIED and
the subject withdrawal order is AFFIRMED.

..·~~a
Distribution

Certified Mail:

Michel Nardi, Esq., 1800 Washington Rd., Pittsburgh, PA 15241
Marshall H. Harris, Esq., US Department of Labor, Office of the
Solicitor, 3535 Market St., RM. 14480, Philadelphia, PA.
19104
Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC
20005

492

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

22041

703-756-6230

FEB 2 O 1980

Civil Penalty Proceeding

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

Docket No. DENV 79-155-PM
A.C. No. 39-00055-05001

Petitioner
v.

Yates Shaft Mine
HOMESTAKE MINING COMPANY,
Respondent
DECISION
Appearances:

Steven P. Kramer, Esq., Trial Attorney, Office of the
Solicitor, Mine Safety and Health Administration, for
Petitioner;
Timothy M. Biddle, Esq., Crowell & Moring, Washington,
D.C., and Robert Amundson, Esq., Amundson & Fuller, Lead,
South Dakota, for Respondent.

Before:

Judge Fauver

This case was brought by the Secretary of Labor under section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., for
assessment of civil penalties for alleged violations of mandatorY-safety
standards. The case was heard at Rapid City, South Dakota, on August 13,
1979. Both sides were respresented by counsel, who have submitted their proposed findings, conclusions and briefs following receipt of the transcript.
Having considered the evidence and contentions of the parties, I find
that the preponderance of the reliable, probative, and substantial evidence
establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent, Homestake Mining Company, operated a gold mine known as the Yates Shaft, in Lawrence County, South Dakota,
which produced gold ore for sales in or affecting interstate commerce.
Citation No. 328801
2. On March 20, 1978, Iver Iverson, a federal mine inspector, accompanied by the relief foreman, Horace Randel, inspected Respondent's crushing

493

plant at the Yates Shaft~ The facility housed four conveyor belts in a
large building about 10 stories high, 200 to 300 feet long, and 100 to
150 feet wide.
3. They traveled into the crusher room to the head of the No. 4 belt
and walked down about 100 feet of steps that ran alongside the belt. At
the bottom of these stairs was a cement floor and passages to the right and
left. To the left was the No. 3 belt and to the right was a stairway down
to the tail end of the No. 4 feeder belt. The tail pulley of the No. 4 belt,
protected by a metal frame, was located in a small recessed area (about
8 x 10 feet) and was about 4 feet directly in front of the stairway, which
was the only means of access to this area. Just past the tail pulley was a
dead end.
4. The stairway consisted of three metal grating stairs and descended
about 3 feet. Each step was about 10 inches wide and 40 inches long. On
one side of the stairs was a handrail and on the other side a concrete wall.
Overhead lighting was provided.
5. The steps were covered with an accumulation of fine and loose rock
pieces about 1 inch to 1-3/4 inches large. The accumulation covered the
steps at about a 45-degree angle from the the bottom to the top. Only the
metal of the bottom portion of .the middle step was at all visible through
the accumulation of material.

6. The loose material came from the No. 3 conveyor where it dumped
onto the No. 4 belt. The manner in which the material had settled and was
packed on the stairs indicated that it had been there for some time. The
condition created difficulty in walking doW'n the stairs, and posed a hazard
that someone using the steps might fall, including the hazard of falling
forward into the metal frame around the tail pulley.
7. At 2:15 p.m., Inspector Iverson issued a citation to Respondent,
reading in part:

Stairway leading to the bottom of No. 4 feeder belt
Yates crusher was covered with loose rock, loose material
covered each step from front to back at approximately
45 degrees from horizontal. Three steps measured 10 inches
wide, 40 inches long with each having a 8 inch drop, measured
by a standard rule. Poor footing on step surface created a
unsafe condition. Stairway was used by maintenance crew.
The citation was abated the following day.

8. There were three shifts per day, each with three men. One ran the
crusher from the crusher platform, one removed chips from the belt, and the
third did general cleanup work. In addition, from time to time crusher
mechanics performed maintenance on the crusher and screens and greased the
conveyors.

494

9. The cleanup man cleaned around the stairways and belts and through
the travelways each shift. He would clean around the equipment in the cited
area whenever he found it dirty. The crusher mechanics greased and checked
the tail pulley about once a week.
·
10. Men used the plant's travelways routinely for maintaining the
equipment, cleaning the travelways, and while supervising work activities.
The travelways would also be used in the event of an injury to one of the
crew.
11. The cleanup man would try to keep the cited stairway free from
accumulations of loose material; however, a spillage could occur within a
matter of a few minutes if a rock became lodged in the conveyor. When the
conveyor was in operation, some spillage was expected and occurred frequently. The frequency of spillages was unpredictable and sometimes 2 or
3 hours could elapse without a spillage.
12. Rocks would occasionally become caught in the conveyor and cause
a back up or spillage at the tail pulley. The excess load would ultimately
trigger a mechanism to shut down the belt. When this occurred, the crusher's
panel lights would be activated, indicating that debris was probably accumulating around the tail pulley.
·
13. This type of blockage and spillage would occur several times per
shift depending on the amount of moisture in the rock and on how many rocks
became caught in the hopper; it was very difficult to prevent completely.
14.

The accumulation cited was left over from at least one prior shift.

15. A preshift examination on each shift consisted of the foreman
traveling all the walkways and passageways and checking for safety conditions. No record of these examinations was made. A preshift examination of
the cited area had not been made pr~or to the citation because the Government inspection was already in progress when the supervisor, Gene Pfarr,
arrived.
16. Considering that the spillage was left over from at least one
prior shift, management knew or reasonably should have known of the condition before it was found by the inspector.
Citation No. 328810
17. As part of its cut and fill mining sequence, Homestake constructs
vertical shafts used as ore bins and adjacent manways between levels where
mining is taking place. The purpose of the ore bins or "binlines" is to provide a vertical receptacle for loose ore to fall into as it is pulled to the
top opening with a "slusher." The mouth of the shaft is 5 1 x 10' and of this
the ore bin is 5' x 5'. The top of the ore bin is normally protected by
two "grizzly bars" equally spaced across the opening; these prevent oversized pieces of ore from falling into the ore bin and act as a guard to

495

protect the miners from falling in. Also inside the shaft, and adjacent to
the ore bin, is a manway containing ladders between the stope and the lower
level where the ore is loaded. The ladders are offset on a series of
landings about 20 feet apart.
18. The manway is separated from the ore bin by a solid wall. At the
top of the shaft the ore is kept from falling into the manway by a "yankee
bin." This is a wooden platform that begins over part of the opening of the
manway and slants down at about 45 degrees into the ore bin. Most of the
remainder of the manway opening is protected by lagging. Normally, only
about 18" of the manway entry is open when the manway is used as a travelway.
19. As ore is mined in the stope, the height of the stope increases.
Periodically, it becomes necessary to extend the ore bin and manway by adding
a vertical extension at the top. This process, called "standing chimney
timber," is performed by a small construction crew. After the chimney is
installed backfill is placed around it to create a new working surface.
20. On March 30, 1978, construction was underway to extend an ore bin
and manway in the 34D stope above the 4250 level. The Government did not
prove that any other activity was occurring in the stope at the time.
21. The grizzly bars had been removed from the opening over the ore bin
and all lagging boards had been removed from the opening above the manway.
22. In this particular stope, the ore bin descended about 80 feet to
the 4250 level, where the ore came out at the bottom of the bin and was
loaded into mine cars. The manway in the shaft consisted of offset ladders
between landings about 20 feet apart vertically. A cable had been strung
across the passageway on the 4250 level which led to the bottom entry of the
manway. The cable had a sign on it indicating that the manway was closed.
At the top of the manway, which was the only other entry to the manway, the
first section of ladder had been removed.
23.

At the time of the inspection, three of Respondent's employees were
a broken cap at the top of the shaft in preparation for standing the
chimney. As the shaft was being extended the top of the old timber would
first be cleaned off. Six 11-foot, 10 11 x 10" posts would be placed on top
of the old frame and braced. Caps and ties would be placed on the top and
then the posts would be laced up with lacing and cement. A platform on which
the men could work would also be built.
~hanging

24. After all the muck was cleared out of the stope, the equipment
would be torn down and the slusher would be placed in an area so that when
the chimney was finished they could hoist it to the top before backfilling.
The inspector estimated that it would take about 2 hours to change the broken
cap, and the slusher would not have been used again until a new chimney section had been built and backfilled. There were several steps involved for
backfilling and sometimes a stope would sit idle for quite a while. There

496

were about 100 chimneys at the Homestake mine. The chimney on the 34D stope
was extended about once every 2 months and it required about three shifts to
complete an extension.
25. At the time of the inspection, the stope had already been cleaned
out and the slusher had been pulled up. There were two 11-foot, 10 11 x
10" posts leaning vertically against each other at about a 45-degree angle.
The grizzly bars had been removed from the ore bin and the first 8-foot
section of ladder in the manway had been removed near the top. Both halves
of the shaft top were uncovered.
26. At 11:30 p.m., Inspector Iverson issued a citation (No. 328810) to
the supervisor, which read in part:
Miners were standing chimney timber over open raised top
measuring 5 feet wide and 10 feet in length with an 18 inch
by 5 foot manway opening on the north end, 30 feet to the
4250 level manway landing. The muck in the raise was at a
45 degree from horizontal which bottomed out 10 feet from
the top of raise. Location of chimney & raise was in the
34D stope 4250 level 9 ledge.
1he condition was promptly abated by placing a 3-inch thick wooden covering over the opening. The Government proved the above-quoted factual
allegations.
27. It was the inspector's opinion that one of the 11-foot posts or
broken material being handled by the workmen could have fallen down the
unobstructed manway injuring someone on the 4250 level or inside the manway.
He also believed that one of the men could have stumbled or fallen through
the opening to the ore bin. There have been about three fatalities and
three or four serious injuries (none while a chimney was under construction)
when men, who were working around the opening or were passing over it,
stepped backward or stumbled over a loose rock and fell into the opening.
28. At the time of the inspection, the grizzly bars were not in place,
the lagging boards had been removed, and the men were not using safety belts.
This condition created a hazard to the miners working on the chimney
construction.
Citation No. 328401
29. On April 4, 1978, Stanley Sims, a federal mine inspector, inspected
Homestake's Yates shaft. In the area of the No. 3 borehole machine at the
1700 level he cited Respondent for a violation of 30 CFR 57.12-18 as follows:
"Principal Power Switches at the No. 3 borehole machine, 1700 level, 7 ledge,
46 crosscut, were not labeled to show what units they control."
30. At the time of this inspection, the drill was set up at the righthand side of the drift. There were three switch boxes on the opposite side

497

of the drift about 15 feet from the drill. The boxes were not marked to show
the units they controlled. The middle box was much larger than the other
two. It had two parallel lines of the same color that went from the bottom
of the box to the power pack of the borehole machine~ but the path of these
lines was not clear to the eye as going to the borehole machine. It also
had a red plastic handle that controlled the power to the area. The box on
the right, the welder's box, and the one on the left, a 110-volt transformer
box that controlled the slusher lights, both fed off the large box. There
were two other smaller boxes about the size of the welder's box in the drift
about 6 feet from the power unit. At the location of the borehole machine,
the drift was about 15 feet wide. In other respects, this was a standard
size drift--about 90 feet high and 7 to 8 feet wide.
31. There was a separate control panel next to the borehole machine.
The buttons on the panel were properly labeled and were not the subject of a
citation. A red stop button on the panel could deenergize the machine.
Although it would stop the machine, the circuit to the power pack could be
re-energized by pushing the start button again. If the stop button were
inoperable, the main power box would have to be used to shut off the machine.
The borehole machine had no "dead man" control.
32. The inspector considered the switch boxes on the wall as the primary
switches because they controlled the feed to the secondary controls. By
sight, the inspector was unable to determine readily which units the boxes
controlled. He assumed the larger box was the master because it usually was,
and that the welding machine and slusher lights were controlled by the other
two.
33. There was a danger that, if the driller were in an emergency and
unable to reach the drilling machine control panel, others might not know
how to shut off the power at the wall immediately because the wall boxes
were not marked.
34. It was rare at this mine that a primary switch box would not be
labeled to indicate which unit it controlled.
35. The borehole machine would be moved into an area that had been
mined out and it would normally take about 3 weeks to drill a 150-foot raise.
The power unit had a 200-horsepower electric motor that powered two hydraulic
pumps. The helper usually greased the machine, placed the rods in the
rocker, and performed normal maintenance duties. He was usually present during periods of drilling. About 6 months of training would be required to
become competent in running the drill. One of the first things a helper
would learn was how to turn off the borehole machine. He would be the first
to turn it on at the start of a shift and the first to turn it off by throwing the switch on the large circuit box on the wall.
36. As of the day of the inspection, the Respondent had recently
obtained another borehole machine and the crews were divided. The driller
at the site had not yet chosen a permanent helper and was using laborers
instead. No laborer had shown up for work that day.

498

37. The citation was abated. by placing a stencil label: "borehole"
on the large circuit breaker box.
DISCUSSION WITH FURTHER FINDINGS
Citation No. 328801
On March 20, 1978, Inspector Iverson charged Respondent with a violation of 30 CFR § 57.11-1, which provides: "Mandatory. Safe means of access
shall be provided and maintained to all working places." The inspector
observed that the stairway leading to the tail pulley of the No. 4 feeder
belt was covered with loose material that created an unsafe condition.
The basic issue as to this citation is whether section 57.11-1 applies
to stairways such as the one involved here.
Respondent contends that the standard applies only to travelways since
section 57.11 is introduced by the heading, "Travelways and Escapeways." By
definition, Respondent argues, for an area to be considered a travelway it
must be used on a regular basis (which implies more than just being accessible). "Travelway" is defined in 30 CFR § 57 .2 as a "passage, walk or way
regularly used and designated for persons to go from one place to another."
Respondent states that "the evidence was clear that the stairs were used on
an occasional basis for the sole purpose of access to the tail pulley for
infrequent maintenance work** *·"
Petitioner asserts that the stairway was a travelway within the meaning
of section 57.2 because mechanics traveled the stairway to check and grease
machinery in the course of their regular maintenance duties, supervisory
personnel traveled this area, and cleanup people regularly traveled this
area.
Respondent also asserts that even if the stairway leading to the tail
pulley was a travelway, section 57.11-1 was not violated because the alcove
was not a "working place". "Working place" is defined in section 57.2 as
"any place in or about a mine where work is being performed." Relying on the
present tense of the definition, Respondent contends the standard applies
only while work is in progress and notes that there was no evidence that at
the time of the citation work activity was taking place or would be taking
place in the area in the immediate future.
Petitioner contends that an area in which regular maintenance, such as
greasing and repair work, is performed is a "place in or about a mine where
work is being performed."
Finally, Respondent asserts that section 57.11-1 does not apply to the
stairs because a more specific section, 57.11-8, applies. Section 57.11-1
speaks generally of maintaining safe access to working places. Section
57.11-8, which is not a mandatory standard, specifically applies to stairways. That section reads: "Ladderways, stairways, walkways, and ramps

499

should be kept free of loose rock and extraneous materials." Because section 57 .11-8 is n.ot a mandatory standard, Respondent contends, it cannot
be enforced.
Petitioner agrees that section 57.ll-8 is not a mandatory standard and
states that it has since been revoked. Federal Register, August 17, 1979,
Vol. 44, No. 161, p. 48530. Petitioner contends that section 57.11-1 was
the proper standard to cite.
I conclude that at the time of the inspection, 30. CFR § 57. ll-1 applied
to the cited area.
The stairway was used about once a week by the crusher mechanics to
maintain and grease the tail pulley. It was also inspected by supervisors
and traveled by cleanup men whenever they cleaned a spill or an accumulation
of loose materials. Those activities satisfy the requirement of regular use
within the meaning of 30 CFR § 57.2. The stairway, by its nature, was
designed for people to gain access from one area to another and was, therefore, a "travelway" under that section.
I also find that the tail pulley area was a "working place" as defined
in 30 CFR § 57.2. During periods of maintenance and cleanup around the
tail pulley, "work is being performed." In El Paso Rock Quarries, DENV
79-139-PM (December 17, 1979), Judge Moore said: "Inasmuch as employees are
required to go into the tunnel to clean and repair, it is a workplace within
the meaning of the regulation." I find Respondent's characterization of
section 57.11-1 as requiring a safe means of access only "while work is in
progress" incorrect.
Citation No. 328810
On March 30, 1978, Inspector Iverson charged Respondent with a violation
of 30 CFR § 57.11-12 for failing to guard openings above the manway and ore
bin. Section 57.11-12 provides: "Mandatory. Openings above, below, or near
travelways through which men or materials may fall shall be protected by
railings, barriers, or covers. Where it is impractical to install such
protective devices, adequate warning signals shall be installed."
The threshold issue with respect to this citation is whether the manway
was a travelway at the time of the inspection. Respondent asserts that the
manway was not a travelway because at the time of the citation the manway
was (1) closed at the top where construction was underway and an 8-foot section of ladder had been removed and (2) closed at the bottom by a cable with
a danger sign.
The inspector considered the manway to be a travelway within the meaning of 30 CFR § 56.11-12. He said the manway remained open around the top
while construction was underway and the last step would be to close it off
when backfilling started. He believed that while men were still working

500

around the top the manway could be used as a travelway. At the time of the
citation, it had not yet been closed off, and although he would not have
expected anyone to descend into the manway (without first replacing the
8-foot section of ladder), he considered the manway subject to travel from
above. There was no proof that such travel had ever occurred during this
chimney extension or any other. The inspector did not inspect the bottom
entry to the manway.
I conclude that the Government failed to prove that the manway was a
"travelway" at the time of the citation. Use of the manway as a travelway
was effectively stopped at the top by the fact of ongoing construction of
the chimney, the removal of the 8-foot ladder section, and the existence and
actual use of one or more alternative travelways, such as the one used by
the inspector to get to the construction site. Respondent's evidence made
a prima facie showing that, at the bottom of the manway, entry to the manway
was effectively closed by placing a cable across it and hanging a danger
sign. The inspector did not inspect or investigate conditions at the bottom
entry; the Government's evidence did not rebut the prima facie showing made
by Respondent. There was no solid evidence that miners had ever crossed a
cable and danger sign to enter the bottom of the manway, during this chimney
extension or any other.
Structurally, the 5 1 X 10' set of frame timber around which the construction crew was working consisted of two 5' X 5' openings. One of the
openings was an ore bin; the other was what had been used as a manway and
a Yankee bin. While the chimney was being extended, this half of the top
portion became altered to a 5' X 5' opening that was not structurally or
functionally intended to be a travelway. As mentioned, there was also a
prima facie showing that, at the bottom of the manway, entry to the manway
was effectively closed.
The openings at the top of the shaft were a sine qua non of a construction activity: standing chimney timber. Before the 11-foott:"imbers could be
put in and braced, the coverings had to be removed and could not be replaced
until this activity was completed.
The Government's evidence did show a dangerous construction activity
(the absence of safety belts or lagging over a deep opening) but this did not
prove a travelway violation as alleged in the citation. The safety standard
on which the citation was based applied specifically to "openings above,
below or near travelways." Because the construction sequence of standing
chimney timber changed the structure and function of the manway to a construction site, there no longer existed a factual basis for the citation.
Since the travelway standard did not apply to this activity, the relevant
safety issue was whether the construction activity constituted an "imminent
danger" under section 107(a). Since the Secretary did not allege an imminent
danger, such issue is not before me.

501

Citation No. 328401
On April 4, 1978, Inspector Sims charged Respondent with a violation of
30 CFR § 57.12-8, which provides: "Mandatory. Principal power switches shall
be labelled to show which units they control, unless identification can be
made readily by location." The citation reads: "Principal power switches at
the No. 2 borehole machine, 1700 level, 7 ledge, 46 X cut were not labelled
to show what units they control."

The controlling issues as to this citation are whether the three circuit boxes were principal power switches and, if so, whether the units
they controlled could be readily identified by their location.
Respondent asserts that there were two principal power switches at the
location in question: The red "stop" button on the control panel controlled
the hydraulic power for the borehole machine and the large circuit breaker
box controlled the electrical power for the area. It contends that, by
their location, these power switches were readily identifiable by "those
miners who could reasonably be expected to be present when an emergency
occurred and who might be called upon to stop the equipment."
I find that each of the circuit breaker boxes was a principal power
switch, that the units they controlled could not be readily identified by
their location, and that this condition created a safety hazard.
There were three circuit breaker boxes with power switches on the wall
of the drift opposite the borehole machine and about 15 feet from the
machine. The large box controlled three units--the borehole machine and the
other two boxes; the two boxes controlled, respectively, the slusher lights
and the welding machine. Each machine also had its own separate power
switch. The borehole machine control panel included a prominent red stop
or panic button to stop the machine immediately.
None of the wall boxes was marked. In an emergency, the borehole
machine operator could be in danger but unable to reach the borehole control
panel. In such an event, his safety could depend on the swiftness with
which another person (whether his helper or any other person) could turn off
the power at the wall. The existence of three boxes without markings could
confuse someone as to the right switch to pull to cut off the power to the
borehole machine. Such delay could be significant in an emergency.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the parties and the
subject matter of the above proceeding.
2. Respondent violated 30 CFR § 57.11-1 by allowing loose material to
accumulate on the stairway as alleged in Citation No. 328801. Based upon
the statutory criteria fot assessing a civil penalty for a violation of a
mandatory safety standard, Respondent is assessed a penalty of $100 for this
violation.

502

3. Petitioner did not meet its burden of proving a violation as
alleged in Citation No. 328810.
4. Respondent violated 30 CFR § 57.11-18 by failing to label principal
power switches as alleged in Citation No. 328401. Based upon the statutory
criteria for assessing a civil penalty for a violation of a mandatory safety
standard, Respondent is' assessed a penalty of $100 for the above violation.
ORDER
WHEREFORE IT IS ORDERED that (1) the charge based on Citation No. 328810
is DISMISSED, and (2) Homestake Mining Company shall pay the Secretary of
Labor the above-assessed civil penalties, in the total amount of $200, within
30 days from the date of this decision.

WILLIAM FAUVER, JUDGE
Distribution:
Steven P. Kramer, Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 40i5 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue,
NW., Washington, DC 20036 (Certified Mail)

503

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

20006

.February 20, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ex rel Billy G~ne Kilgore,
Applicant
v.

Complaint of Discharge,
Discrimination, or Interference
Docket No. VA 79-144-D

PILOT COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Swain, Esq., and Kenneth L. Stein, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania for Applicant;
J. Robert Stump, Esq., Sturgill & Stump, Norton,
Virginia for Respondent.

Before:

Chief Administrative Law Judge Broderick

Statement of the Case
The complaint filed in this proceeding on September 20, 1979,
alleges that Billy Gene Kilgore was discharged by Respondent on or
about May 18, 1979, because of activity protected under section 105(c)
of the Federal Mine Safety and Health.Act of 1977, 30 u.s.c. § 815(c).
Pursuant to notice, a hea~ing on the merits was held in Norton,
Virginia, on November 29, 1979. Billy Gene Kilgore and Donnie Brickley
testified for the Applicant. Bruce Arwood, Darrell Baker, Mack Thacker
and Kelly Fultz testified for the Respondent. Both parties were
afforded the opportunity to submit post hearing briefs, To the extent
that the contentions of the parties are not incorporated in this
decision, they are rejected,
Statutory Provision
Section 105 of the Act provides in part:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the

504

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or
other mine subject to this Act because such miner, representative of miners or applicant for employment has filed
or made a complaint under or related to this Act, including
a complaint notifying the operator or the operator's agent,
or the representative of the miners at the coal or other
mine of an alleged danger or safety or health violation in
a coal or other mine, or because such miner, representative
of miners or applicant for employment is the subject of
medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner,
representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to
testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory
right afforded by this Act.
(2) any miner or applicant for employment or representative of miners who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person in violtion of this subsecton may, within 60 days
after such violation occurs, file a complaint with the
Secretary alleging such discrimination, Upon receipt of
such complaint, the Secretary shall forward a copy of the
complaint to the respondent and shall cause investigation to
be made as he deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt of the
complaint, and if the Secretary finds that such complaint
was not frivolously brought, the Commission, on an expedited
basis upon appication of the Secretary, shall order the
immediate reinstatement of the miner pending final order on
the complaint. If upon such investigation, the Secretary
determines that the provisions of this subsection have been
violated, he shall immediately file a complaint with the
Commission, with service upon the alleged violator and the
miner, applicant for employment, or representative of miners
alleging such discrimination or interference and propose an
order granting appropriate relief. The Commission shall
afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without
regard to subsection (a)(3) of such section) and thereafter
shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order,
or directing other appropriate relief. Such order shall
become final 30 days after its issuance. The Com.mission
shall have authority in such proceedings to require a person
committing a violation of this subsection to take such

505

affirmative action to abate the violation as the Commission
deems appropriate, including, but not limited to, the
rehiring or reinstatement of the miner to his former position with back pay and interest. The complaining miner,
applicant, or representative of miners may present additional evidence on his own behalf during any hearing held
pursuant to his paragraph.
Issues
1. Whether Applicant Billy Gene Kilgore was discharged by Respondent on or about May 18, 1979?
2. If so, whether the discharge was because of activity protected
under section 105 of the Act?
3. If Applicant was not discharged but resigned, was his resignation a constructive discharge?
4. If so, was it because of activity protected under section 105
of the Act?
Stipulation
The parties made the following stipulation on the record:
Number one, Pilot Coal Corporation is a coal mining
corporation doing business in the Commonwealth of Virginia
and maintains its principal offices in Wise, Virginia.
Number two, the corporation, as of this date, operates
one underground mine and one surface mine. Surface mine
No. 2 employs approximately [eight] employees on one production shift per day. The mine operations of the Respondent
would be classified as "small". Total daily tonnage from
the underground mine is 100 tons and 200 tons from the
surface mine.
Number three, Respondent has never been found guilty
civilly or criminally of a violation of the discrimination
provisions of the Federal Mine Safety and Health Act (Coal
Mine Health and Safety Act).
Number four, the Complainant, after termination did
not seek reinstatement with the Respondent, and the Respondent did nothing to hinder the resolution of the instant
matter.
Number five, if Clarence A. Goode were called to testify he would state: (A) I have been employed by MSHA

506

(MESA) since January of 1971. (B) I have been a special
investigator since October, 1977. (C) As a special
investigator I investigate complaints under Section 105(c)
and Section 110 of the 1977 Act. (D) I have received
extensive training totaling 240 hours in regard to the
execution of my duties as a special investigator. Further,
I have conducted to date approximately twelve discrimination cases and have supervised other investigations of
discrimination complainst conducted by my staff. These
supervised investigations total about 85 cases.
Number six, in the instant case, from my investigation, I conclude that the alleged discrimination which may
have taken place did not indicate a pattern or practice of
any general discriminatory action by the Respondent.
Seven, in the event that the maximum penalty authorized under this Act were assessed against the Respondent,
the payment of said penalty would not significantly affect
the Respondent's ability to continue in business.
Number eight, if Respondent were called to testify,
Kelly Fultz, corporation president, would testify that if
the maximum penalty were assessed against the Respondent,
it would significantly affect the Respondent's ability to
continue in business. And that is the end of the
stipulation.
Findings of Fact
1. The facts stated in the above stipulation are accepted and
adopted as Findings of Fact.
2. Applicant was hired by Respondent in or about January, 1978,
primarily to operate a front-end loader, but also to operate dozers
and haulers.
3. On one occasion prior to May 1979, Applicant quit his job
after spilling some oil on his person while waiting to fuel his frontend loader. After about a week, he returned, and was accepted back on
the job.

4. On May 14, 1979, the front-end loader was having problems
with its turbo charger and was removed from service until a needed part
could be procured.
5. On May 15, 1979, Applicant was assigned to drive a 35 ton
hauler truck. His only previous experience on such a vehicle was about
7 years previously when he intermittently drove a truck for about a
month.

507

6. On May 15, 1979, Applicant drove the hauler, most of the
driving being on level ground. He complained of the brakes and brake
fluid was added. Applicant did not have any other difficulties
driving the hauler on that day.
7. On May 16, Applicant was required to drive his truck up a
newly-made incline to the loading point. Because there was not room to
turn around at the loading point, the truck had to be backed up the
incline. The road was soft and with an empty truck it was difficult to
back up. Applicant was unable to back up the incline and was afraid of
turning the truck over. After another driver hauled several loads,
there was enough room to turn around at the loading point.
8. Applicant then drove up forward and hauled approximately six
loads. He testified that he was having difficulty with the retarder
brakes and was unable to slow the truck sufficiently to successfully
negotiate the curve coming down the incline.
9. After he got his last load that day while turning, one wheel
dropped into a hole and the other ran up on a rock. Applicant got out
of the hauler and it was righted by another driver.
10. Applicant then told the mechanic and the foreman that he did
not think he could operate the hauler safely and he was quitting.
11. The road was over 16 feet wide, had a berm on one side and
the bank on the other. There was loose material where the road had
been recently regraded.
12. The foreman attempted to persuade Applicant not to quit, and
offered to put him on sick leave for the remainder of the day. Applicant refused the offer.
13. On May 18, 1979, Applicant returned to the mine, having filed
a complaint with MSHA the previous day, and was told that the loader
was not fixed and that driving the hauler was the only work available
for him.
14.
charged.

Applicant was not told on May 16 or May 18 that he was dis-

15. Applicant Billy Gene Kilgore was not discharged from his
employment by Respondent on or about May 18, 1979, but voluntarily left
the employment.
16. Applicant quit his job in part because he was afraid of driving the hauler up and down the incline.
17. Neither the hauler nor the road were unsafe for normal
operation.

508

18. The circumstances surrounding\ applicant's resignation did
not constitute a constructive discharge.
Conclusions of Law
1. At all times relevant to this decision, Applicant and Respondent were subject to the provisions of the Federal Mine Safety and
Health Act of 1977.
2. The undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
3. Applicant was not discharged, interfered with, or otherwise
discriminated against because of activity protected under section 105
of the Act.
Discussion
The evidence establishes that Kilgore was not discharged but
voluntarily quit his job. The evidence further establishes that there
were no safety hazards related to the road or'the hauler. He did not
wish to continue work because he was fearful that he would be injured
due to his lack of experience with the vehicle. I do not believe that
refusal to work under these conditions is activity protected under
105(c) of the Act, or that it can be construed as a discharge or discrimination by Respondent forbidden by that section.
4. Since Respondent did not violate the Act as alleged in the
complaint, no penalty is assessed.
ORDER
Based upon the above findings of fact and conclusions of law, the
complaint is DISMISSED.
,7

/. () 14t.- e!--:5
James A. Broderick
Chief Administrative Law Judge

J
Distribution:

J. Robert Stump, Esq., Attorney for Pilot Coal Company, Sturgill &
Stump, P.C., 464 Park Avenue, Norton, VA 24273 (Certified mail)
JAB

James H. Swain, Attorney, Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified mail)
Mr. Billy G. Kilgore, Box 1241, Wise, VA

509

24293

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

(703) 756-6210/11/12
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

FEB 2 1 1980

Civil Penalty Proceeding
Docket No. MORG 79-26-P
A.O. No. 46-05452-03001

v.

No. 1 Strip Mine

COALTRAIN CORPORATION,
Respondent
DECISION AND ORDER
The parties have failed to show cause why the findings and conclusions
contained in the attached Order of January 28, 1980, should not be entered
as the decision and order of the Presiding Judge in this matter with
respect to the seven citations in question.
Accordingly, it is ORDERED that said findings as to liability and
the penalties warranted be, and hereby are, CONFIRMED and incorporated
herein. It is FURTHER ORDERED that the operator pay the penalty finally
assessed, $280.00, on or before Friday, March 14, 1980, and that subject
to payment the captioned matter be DIS~f~~ED.

/
/

/

I

Distribution:
Leo McGinn, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, ·VA 22203 (Certified Mail)
Glenn C. Larew, President, Coaltrain Corporation, P.O. Box 128,
Newburg, WV 26510 (Certified Mail)

510

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

(703) 756-6210/11/12
JAtJ 2 3 1980

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

Civil Penalty Proceeding
Docket No. MORG 79-26-P
A.O. No. 46-05452-03001

v.

No. 1 Strip Mine

COALTRAIN CORPORATIOH,
Respondent
ORDER
The captioned petition for assessment of civil penalties
was filed on November 22, 1978, and answered by the operator
in a letter filed on December 21, 1978. Upon the operator's
failure to fully comply with the requirements of the Pretrial
Order of May 1, 1979, a default order issued assessing as
final the reduced penalties recommended by counsel for the
Secretary in his pretrial response filed May 25, 1979. The
Commission directed the matter for review sua sponte, found there was
no default, and by decision of November 30-;-1'979 remanded
the matter to the Presiding Judge for further proceedings.
On January 17, 1980, counsel for the Secretary responded to the
order of December 11, 1979 directing that he address the
defenses and mitigating circumstances raised by the operator.
An independent evaluation and de novo review of the
parties' submissions discloses that----Chere is no dispute
as to the material facts, and that the record supports the
following findings of fact and conclusions of law:
Citation No. 015441 alleges failure to provide
a working, audible reverse alarm on a front end loader
as required by 30 CFR 77.410. The operator admits
the fact of violation, but asserts in mitigation that
the machine operator was the only person allowed in
the pit so as to assure that no miner would possibly
be harmed by the lack of an alarm. Counsel for the
1.

511

Secretary does not dispute this. Thus, the record
supports a finding that the violation occurred as
charged, that the operator was ordinarily negligent,
and that the violation was non-serious. Accordingly,
and after considering the other statutory criteria,
I conclude that a penalty of $100.00 is warranted
for the violation found.
2.
Citation No. 015478 alleges failure to provide
an approved sanitary toilet facility in a location
convenient to the worksite as required by 30 CFR 71.500.
The operator denies that a violation occurred, and
maintains that a complete indoor bathroom was located
within 50 feet of the haulage road leading to the
worksite.
The operator further claims that these
facilities were approved by a previous inspector, and
that they were also subsequently approved by the inspector
who issued the instant Citation.
Counsel for the
Secretary does not deny this, but states merely that
"the manner of compliance does not negate the existance
of the violation," thus suggesting that a violation
occurred solely because the facilities were not approved
by the inspector at the time he issued the citation,
notwithstanding his subsequent approval of the same
facilities.
I reject this contention.
The record
supports a finding that toilet facilities were provided
in accordance with the requirements of the standard,
and the citation should accordingly be vacated and the
petition dismissed as to this charge.
3.
Citation No. 015479 alleges failure to provide berms
or guards on the outer bank of an elevated roadway as
required by 30 CFR 77.1605(k).
Counsel for the Secretary
asserts that although the lack of berms or guards can
create a serious risk of injury or death if equipment
were to topple from the roadway, the operator was not
negligent because winter snows had washed out the existing
berms. The operator does not deny the fact of violation,
but asserts that there were ruts made by ~he trucks at
least 12 inches deep for the entire length of the roadway.
Thus, the record supports a finding that the violation
occurred as charged and that the violation was serious,
but that the operator was not negligent since the
condition was beyond its control. Accordingly, and after
considering the other statutory criteria, I conclude
that a penalty of $100.00 is warranted for the violation
found.

512

4.
Citation No. 015480 alleges failure to provide first
.aid equipment at or near a working place as required
by 30 CFR 77.1707(a).
Counsel for the Secretary asserts
that although the operator was negligent i~ failing to
provide such equipment, it is unlikely that serious
injury or death would result from the violation.
The
operator does not deny the fact of violation, but states
that the inspector arrived shortly after miners had
moved to a new work site and that first aid equipment
was located five minutes away at a previous site.
Counsel
for the Secretary does not dispute this.
Thus, the
record supports a finding that the violation occurred
as charged and that the operator was negligent, but
that the violation was non-serious. Accordingly, and
after considering the other statutory criteria, I
conclude that a penalty of $50.00 is warranted for the
violation found.
5.
Citations Nos. 015481 and 015483 allege failure to
post safety regulations in conspicuous locations throughout
the mine as required by 30 CFR 77.1708.
Counsel for
the Secretary maintains that this failure could result
in injuries to the miners, and that the operator should
be aware of the requirement and was therefore ordinarily
negligent.
The operator maintains that the subject
mine employs only five miners and that the safety
regulations were posted at the company garage where
all personnel saw them each day.
Since the standard
apparently contemplates that safety regulations be
posted at more than one conspicuous location, I find
that the violations alleged did in fact occur.
However,
the record supports further findings that the operator
did in fact have the safety regulations conspicuously
posted at one place, and that the violations are purely
technical in nature involving no negligence on the part
of the operator. Accordingly, and after considering
the other statutory criteria, I conclude that a penalty
of $5.00 is warranted for the two violations found.
6. Citation No. 015487 alleges that compressed gas
cylinders were lying on the ground and not secured in
a safe manner as required by 30 CFR 77.208(d).
Counsel
for the Secretary maintains that failure to protect
and secure these cylinders could result in serious
injury, and that the operator was ordinarily negligent
since the condition was obvious.
The operator does not
deny the fact of violation, but asserts that the cylinders
were empty and not in use. Thus, the record supports
findings that the violation occurred as charged, that

513

the operator was ordinarily negligent, and that the
condition was non-serious and remote in that the only
hazard presented was one of falling or tripping over the
cylinders. Accordingly, and after considering the other
statutory criteria, I conclude that a penalty of $25.00
is warranted for the violation found.
I further find that because there is no triable
issue of fact, an evidentiary hearing is unnecessary
to a prompt, just and practical disposition of this
matter. Reliable Coal Co., 1 IBMA 50, 65 (June 10, 1971);
Mitchell v. National Broadcasting Co., 533 F.2d 265,
271 (2d Cir. 1977); Bell Telephone Company of Pa.
v. FCC, 503 F.2d 1250, 1267, n. 25 (3rd Cir. 1974),
cert. den. 422 U.S. 1026, reh. den. 423 U.S. 886 (1975).
Accordingly, it is ORDERED that on or before Wednesday,
February 13, 1980, the parties SHOW CAUSE why the foregoing
findings as to liability and the penalties warranted should
not be entered as the decision and order of the Presiding Judge
in this matter with respect to the

se~n

citations in question.

/" r/
I i/_71
-·,

:V~,,; .

---y

,

ph B. I<ennedy /
Administrative La

--~

udge

Distribution:
Leo McGinn, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Glenn C. Larew, President, Coaltrain Corporation, P.O. Box 128,
Newburg, WV 26510 (Certified Mail)

514

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

~E6 2 2 ,900
)
)

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

)

Civil Penalty Proceeding

)

Petitioner,

)

v.

)
)
)
)

DOCKET NOS. WEST 79-214-M
and WEST 79-279-M
A/O Nos. 45-00572-05002
and 45-00572-05003

)

ACME CONCRETE COMPANY,

)

)
)
Respondent.
~~~~~~~~~~~~~~~~~~~·)

Mine:

Acme Pit and Plant

APPEARANCES:
Rochelle Kleinberg, Esq., Office of Robert A. Friel,
Regional Solicitor, United States Department of Labor,
Seattle, Washington
for the Petitioner,
Kevin Bredesen, Safety Coordinator and E.J. Ziegler,
Plant Supervisor, appearing pro se,
for the Respondent.
Before:

Judge John J. Morris
DECISION

Petitioner charges Respondent failed to secure gas cylinders and
failed to provide a backup alarm for its equipment.

Petitioner asserts

the cited conditions violate standards promulgated under the authority
of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §801
et~·

(1976), (amended 1977).
ISSUES

The issue is whether any violations occurred.

515

CASE NO. WEST 79-214-M
CITATION 345301
This citation alleges a violation of 30 CFR 56.16-5.l/
The uncontroverted evidence establishes the following facts.
1.

Three oxygen cylinders were outsi~e Acme's grease storage
building (Tr 20, Exhibit P6).

2.

One of the cylinders was unsecured; it could tip over, rupture,
and rocket off (Tr 22).

3.

The cylinder, purchased commercially, was delivered by a vendor
just prior to the inspection (Tr 35,46).

4.

The cylinders, 50 feet from the plant office, are to be secured
by the vendor, however, the vendor had not secured them on two
or three prior occasions (Tr 46,48).

Acme contends the events involving unsecured cylinder were outside
of its control.l./
I reject Acme's argument.

The fact that the vendor left the two

cylinders unsecured on two prior occasions are sufficient facts to alert
Acme to the likelihood of a violation.

The obligations imposed by the

Federal Coal Mine Act cannot be delegated to another by contract, cf
Frohlich Crane Service, Inc•, v OSHRC 521 F2d 628, (10th Cir., 1975);
Ce~tral

of Georgia Railroad Company v OSHRC 576 F2d 620, (5th Cir.,

1978) •

.!/The cited standard reads as follows:
56.16-5 Mandatory. Compressed and liquid gas
cylinders shall be secured in a safe manner.
l_/This conclusion was reached by the inspector and entered in his report
(Tr 35,Rl).

516

CASE NO. WEST 79-279-M
CITATION 345271 and 345272
These citations allege violations of 30 CFR 56.9-87.1./
The uncontroverted evidence establishes the following facts.
5.

Acme's 980 loader was being operated without a backup alarm and
without a person acting as an observer (Tr 9).

6.

On the loader, the driver sits to the front and the engine is
to the rear (Tr 12,13).

7.

A driver in his position could not see a person as close as 3
to 4 feet from the rear of the vehicle (Tr 16,19,P-5).

8.

The inspector observed one or two workers in the vicinity of
the loader (Tr 12,23-24,36-37).

9.

The 966 loader was not equipped with a backup alarm nor was
there an observer available (Tr 17).

10.

One or two workers were in the area of the 966 loader; the
966 loader is similar in design but smaller than the 980 loader
(Tr 17-18,24-27,36-37, P-5).

Acme contends no violations occurred since the operator's view was
not obstructed.

In addition, Acme argues, in effect, that there was a

lack of employee exposure since no employees, other than the operator,
were working in the cited areas.

1/The cited standard provides:
56.9-87 Mandatory. Heavy duty mobile equipment·
shall be provided with audible warning devices.
When the operator of such equipment has an obstructed view to the rear, the equipment shall
have either an automatic reverse signal alarm
which is audible above the surrounding noise
level or an observer to signal when it is safe
to back up.

517

Ac~e's first contention is not supported by the record.

The

rebutted testimony of the compliance officer establishes the limitations
of the operator's view (Fact's paragraph 7).

In addition, photograph P-5

confirms this testimony.
Acme's second contention is rejected.

Employee exposure to a

prohibited hazard is an essential element of MSHA's proof.
In the evidence presented here there is such exposure.
Concerning the 980 loader:

The loader operator, as well as Acme's

truck drivers, can load in this area (Tr 44-46).

Exposure arises when

workers leave their trucks, an event observed "quite often" by the
inspector (Tr 24-27).
Concerning the 966 loader!

A loader was stuck and the inspector

observed a worker fastening a 10 foot cable to the disabled vehicle so
it could be moved (Tr 25-26,32-34).

Even though the operator of the 966

loader would generally be isolated from any other workers, the described
circumstances constitute exposure to the involved employee.
JURISDICTION
The parties concede jurisdiction (Tr 6).
FINDINGS OF FACT
I find the facts as outlined in Paragraphs 1 through 10 of this
decision.
CONCLUSIONS OF LAW
1.

Respondent violated 30 CFR 56.16-5 and Citation 345301, (Case
No. West 79-214-M) should be affirmed.

518

(Facts 1-4.)

2.

Respondent violated 30 CFR 56.9-87 and Citations 345271 and
345272, (Case No. West 79-279-M) should be affirmed.

(Facts

5-10.)
Based on the foregoing findings of fact and conclusions of law, I
enter the following:
ORDER
1.

In Case No. West 79-214-M, Citation 345301 and the proposed
penalty of $38 are affirmed.

2.

In Case No. West 79-279-M, Citations 345271 and 345272 and
the proposed total penalty of $228 are affirmed.

Law Judge
Distribution:
Rochelle Kleinberg, Esq., Office of the Regional Solicitor, U.S. Department
of Labor, 8003 Federal Building, Seattle, Washington 98174
Kevin Bredesen, Safety Coordinator, Acme Concrete Company, Box 2503
Terminal Annex, Spokane, Washington 99220
E. J. Ziegler, Plant Supervisor, Acme Concrete Company, Box 2503 Terminal
Annex, Spokane, Washington 99220

519

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

FEB 2 5 1980

Civil Penalty Proceeding

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

Docket No. HOPE 79-197-P
A/O No. 46-01863-03003

Petitioner
v.

Pond Fork Mine
ISLAND CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
William K. Bodell, II, Esq,, Island Creek Coal Company,
Lexington, Kent~cky, for Respondent.

Before:

Judge Cook

I)

Procedural Background

On January 16, 1979, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty against Island Creek
Coal Company (Respondent) in the above-captioned proceeding. 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)(l978)(1977 Mine Act), and alleges violations
of two provisions of the Code of Federal Regulations, An answer was filed
on February 12, 1979.
Notices of hearing were issued on June 19, 1979 and July 13, 1979. A
continuance was granted at the Respondent's request on July 5, 1979. The
hearing was held on August 16, 1979 in Bluefield, West Virginia, Representatives of both parties were present and participated,
A schedule for the submission of posthearing briefs was agreed upon
after the presentation of the evidence, However, difficulties experienced by
counsel necessitated a revision thereof. Under the revised schedule, briefs
were due by October 19, 1979, and reply briefs were due by November 5, 1979.

520

The Respondent and the Petitioner filed posthearing briefs on
October 19, and October 25, 1979, respectively. The Respondent filed a
reply brief on November 5, 1979, and the Petitioner filed a response to the
reply brief on November 13; 1979. l./
·
II Violations Charged
Citation No.

20053
21804
III

Date

30 CFR
Standard

6/19/78
7/13/78

75.302-1
75.200

Evidence Contained in the Record
A)

Stipulations

The stipulations entered into by the parties are set forth in the
findings of fact, infra.
B)

Witnesses

The Petitioner called as its witness Billy R. Browning, an MSHA
inspector.
The Respondent called as its witnesses Arvel Gartin, a section foreman
at the subject mine; Tony Turyn, director of safety for the Respondent's
Island Creek Division; and Douglas White, the day shift mine foreman at the
subject mine.
C)

Exhibits

1)

The petitioner introduced the following exhibits into evidence:

M-1 is a copy of both Citation No. 20053, June 19, 1978, 30 CFR 75.302-1
and the termination thereof.
M-2 is a document styled "Assessed Violation History Report-Two Year
Summary by Mine" compiled by the Directorate of Assessments. This document
1/

The Respondent argues that the Petitioner's brief should not be consid-

~red in making a decision in the instant case because it was not timely

filed. (Respondent's Reply Brief, pg. 1). The Petitioner asserts that such
action would be inappropriate because the Respondent has not alluded to
having suffered prejudice as a result of the tardy filing. (Petitioner's
Response to Respondent's Reply Brief, pg. 1)
In light of the absence of demonstrable prejudice resulting from the
late filing, the arguments raised in the Petitioner's posthearing brief will
be considered in deciding the instant case.

521

contains information on the history of violations for which the Respondent
had paid assessments between July 20, 1976 and July 19, 1978.
M-3 is a copy of both Citation No. 21804, July 13, 1978, 30 CFR 75.200
and the termination thereof.
M-4 is a drawing produced during the hearing by Inspector Browning
during, his testimony relating to Citation No. 21804, July 13, 1978,
30 CFR 75.200.
2)
IV

The Respondent did not introduce any exhibits into evidence.

Issues

Two basic issues are involved in the assessment of a civil penalty
(1) did a violation of the 1977 Mine 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.
V

Opinion and Findings of Fact
A)

Stipulations

1) Island Creek Coal Company owns and operates the Pond Fork Mine and
both are subject to the jurisdiction of the 1977 Mine Act. (Tr. 5)
2) The Administrative Law Judge has jurisdiction over this proceeding
pursuant to section 105 of the 1977 Mine Act. (Tr. 5).
3) Inspector Billy R. Browning was a duly authorized representative of
the Secretary at all times relevant hereto (Tr.5).
4) Island Creek Coal Company is a large operator and a civil penalty
assessment herein will not affect its ability to continue in business.
(Tr. 5).
5) Island Creek Coal Company mines over ten million tons per year, and
the Pond Fork Mine mines from fifty to sixty thousand tons a year. (Tr. 89).
B)

Occurrence of Violations, Negligence, Gravity and Good Faith

1)

Citation No. 20053, 6/19/78, 30 CFR 75.302-1

MSHA Inspector Billy R. Browning conducted a spot inspection of the
Respondent's Pond Fork Mine on June 19, 1978 (Tr. 10-12). He arrived at the

522

mine at approximitely 3:50 p.m. and entered the mine with the evening shift
at approximately 4:00 p.m. (Tr. 12-13). He testified that the shifts at the
Pond Fork Mine change at 4:00 p.m. (Tr. 13). He arrived on the section at
approximately 4:30 p.m. (Tr. 21). At 4:55 p.m., he issued the subject
citation alleging a violation of mandatory safety standard 30 CFR 75.302-1
as follows:
The line brattice and check curtain were not properly
installed and maintained from the last open crosscut out to
within 10 feet of the point of deepest penetration in the
014-04 unit in that the line brattice was terminated 20 feet
outby the point of deepest penetration in the No. 6 entry,
27 feet outby the point of deepest penetration in the No. 5
entry and the line brattice and check fly were nailed to the
roof in the No. 3 and 4 entries.
(Exh. M-1; see also Tr. 13).
The inspector's testimony is in accord with the statements contained in
the citation. (Tr. 13-14, 30-35). In addition, he testified that the check
flies and line brattices were rolled ~ and nailed to the roof in the Nos. 3
and 4 entries. (Tr. 31-33). As relates to the No. 3 entry, they were rolled
up for a distance of approximately 32 to 34 feet (Tr. 31-32). His testimony
indicates that line brattice had been installed to within 8 feet of the
"toe of the coal." (Tr. 31). As relates to the No. 4 entry, they were
rolled up for a distance of approximately 30 feet (Tr. 33-34).
The ventilation plan identified the area as a working section (Tr. 13.)
The testimony of both Inspector Browning and Mr. Arvel Gartin, the evening shift section foreman, establishes that coal was not being cut, mined or
loaded from the working faces in any of the four subject entries between the
time the inspector and the evening shift miners arrived on the section and
the time the citation was issued. (Tr. 22, 29, 36, 43). In fact, there was
no power on the section while the inspector was present (Tr. 36, 41-42).
The first question presented is whether the above-stated facts establish
a violation of 30 CFR 75.302-1 occurring on the June 19, 1978, second shift
at the Pond Fork Mine. For the reasons set forth below, I answer this question in the negative.
The Petitioner argues that an interrelationship exists between 30 CFR
75.302-1 and 30 CFR 75.302(a) whereby the former must be interpreted as
defining an area of the mine and not time periods during the mining process.
The Petitioner correctly observes that 30 CFR 75.302(a) is merely a verbatim
restatement in the Code of Federal Regulations of section 303(c)(l) of the
Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. 863(c)(l) (1970)
(1969 Coal Act). Section 303(c)(l) of the 1969 Coal Act was unchanged by
the enactment of the 1977 Mine Act. Compare 30 u.s.c. § 863(c)(l) (1970)
and 30 u.s.c. § 863(c)(l) (1978). According to the Petitioner, the statutory

523

provision requires the continuous use of line brattice inby the last open
crosscut. The Petitioner then argues that the sole construction of 30 CFR
75.302-1 consistent with the statutory language is that 30 CFR 75.302-1
further clarifies the distance requirements for hanging line brattice in
areas where coal is being cut mined or loaded. (Petitioner's Posthearing
Brief, pp. 5-7). Thus, according to the Petitioner, a violation of 30 CFR
75.302-1 can occur absent actual cutting, mining or loading operations at
a given working face.
The Respondent disagrees, arguing that 30 CFR 75.302-1 describes not
only an area of the mine, but also specifies activities which must be in
progress before the 10 foot rule applies. The Respondent argues that the
regulation is clear and requires little interpretation. The Respondent
submits that the purpose of the regulation is to assure that cutting, mining
or loading, which constitute activities requiring greatest protection from
dust and methane concentrations, are not conducted when curtains are farther
than 10 feet from the face. According to the Respondent, the regulation
seeks to assure proper ventilation at the face during these crucial operations, not at all times. (Respondent's Posthearing Brief, pp. 2-3; see also
Respondent's Reply Brief).
The Petitioner characterizes the Respondent's interpretation as misconstruing the intent of the two provisions and as directly contrary to the
Congressional directive that newly promulgated regulations cannot reduce
existing levels of protection. (Petitioner's Posthearing Brief, pg. 7 citing
Sen. Rep. No. 95-181, 1977 U.S. Code Cong. and Admin. News 3401 at 3411);
see also section 30l(a) of the 1969 Coal Act, 30 U.S.C. § 86l(a) (1970) and
section 30l(a) of the 1977 Mine Act, 30 U.S.C. § 86l(a) (1978).
Although an interrelationship exists between the two provisions, I disagree with the Petitioner's interpretation of that interrelationship. I
conclude that the ten foot requirement contained in 30 CFR 75.302-1 applies
only when coal is actually being cut, mined or loaded from the working
face. 'l:_/
30 CFR 75.302 addresses ventilation of the working face and provides, in
part, as follows:
(a) Properly installed and adequately maintained line
brattice or other approved devices shall be continuously used
from the last open crosscut of an entry or room of each working section to provide adequate ventilation to the working
faces for the miners and to remove flammable, explosive, and
noxious gases, dust, and explosive fumes, unless the Secretary
or his authorized representative permits an exception to this

!)

For a similar interpretation see United States Steel Corporation, MSHA
and United Mine Workers of America, Docket Nos. BARB 79-276 and 79-277
(August 10, 1979, Judge Forrest E. Stewart).

524

requirement, where such exception will not pose a hazard to
the miners. When damaged by falls or otherwise, such line
brattice or other devices shall be repaired immediately.
30 CFR 75.302-1, addresses the installation of line brattice and other
devices and provides, in part, as follows:
(a) Line brattice or any other approved device used to
provide ventilation to the working face from which coal is
being cut, mined or loaded and other working faces so designated by the Coal Mine Safety Manager, in the approved
ventilation plan, shall be installed at a distance no greater
than 10 feet from the area of deepest penetration to which
any portion of the face has been advanced unless a greater
distance is approved by the Coal Mine Safety District Manager
of the area in which the mine is located.
Thus, the two provisions collectively establish the following general
requirements: Properly installed and adequately maintained line brattice or
other approved devices must be continuously used from the last open crosscut
of an entry or room of each working section 3/ to provide adequate ventilation to the working faces. 4/ However, when-coal is actually being cut,
mined or loaded from the wo"i:'."king face, the line brattice or other approved
device used to provide ventilation to that working face must be installed at
a distance no greater than 10 feet from the area of greatest penetration to
which any portion of the face has been advanced.
30 CFR 75.302-l(a) simply sets forth a detailed requirement for the
installation of the line brattice in relation to working faces from which
coal is actually being cut, mined or loaded. It cannot be concluded that
the regulation, by delimiting its coverage to areas of actual cutting, mining
or loading, violates the Congressional mandate prohibiting the promulgation
of regulations according less protection to the miners than is provided by
the interim mandatory safety standards.
In view of the fact that neither cutting, mining nor loading of coal
had occurred on the second shift, it cannot be found that a violation of
30 CFR 75.302-1 occurred on the second shift. 5/
3/ " 1 Working section 1 means all areas of the coal mine from the loading
point of the section to and including the working faces." 30 CFR 75.2(g)(3).
4/ "'Working face' means any place in a coal mine in which work of extracting coal from its natural deposit in the earth is performed during the
mining cycle." 30 CFR 75.2(g)(l).
5/ It is possible that a violation of 30 CFR 75.302(a) (statutory provision)
;xisted. But it is unnecessary to decide such an issue because the petition
for assessment of civil penalty does not allege a violation of the statutory
provision.

525

The second question presented is whether the allegations contained in
the petition for assessment of civil penalty are sufficient to charge a violation of 30 CFR 75.302-1 occurring on the June 19, 1978, day shift.
The inspector testified that the cited conditions in the four subject
entries had been present while coal was being produced on the June 19, 1978,
day shift. He did not observe any mining activities .on the day shift
because he was not present in the mine at that time. (Tr. 24). Rather, he
testified as an expert basing his opinion on inferences drawn from observations in the four entries. (Tr. 14-15, 24-25, 27-28, 30-35).
The Respondent contends that the allegations contained in the petition
are inadequate to allege a violation occurring on the prior shift.
(Respondent's Posthearing Brief, pp. 4-5).
It is clear that the Petitioner's case centered on a violation allegedly
occurring on the second shift as evidenced by both the evidence presented at
the hearing and the arguments set forth in the Petitioner's posthearing
brief. Counsel for the Petitioner argued only at the hearing that if actual
cutting, mining or loading is required to support a violation of 30 CFR
75.302-1, then the reasonable inferences drawn from the inspector's observations would support a finding that a violation had occurred on the prior
shift. (Tr. 92-97). The argument is not specifically reasserted in the
Petitioner's brief.
The Interior Board of Mine Operations Appeals observed that timely and
adequate notice is necessary to enable a mine operator "to determine with
reasonable certainty the allegations of violations charged so that it may
intelligently respond thereto and decide whether it wishes to request formal
adjudication." Old Ben Coal Company, 4 IBMA 198, 208, 82 I.D. 264, 1974-1975
OSHD par. 19,723 (1975). Additionally, section 5(b)(3) of the Administrative
Procedure Act, 5 U.S.C. §554(b)(3) (1978), provides that "[p]ersons entitled
to notice of an agency hearing shall be timely informed of * * * the matters
of fact and law asserted."
The Respondent was entitled to notice sufficient for it to determine
with reasonable certainty the violation charged.
The citation sets forth the time of issuance as 4:55 p.m., June 19,
1978; i. e., approximately 55 minutes into the second shift. No statement is
made in the citation alleging that cutting, mining or loading occurred on the
day shift in the face areas of the four subject entries with the line brattices and check flys installed at a distance greater than ten feet from the
area of deepest penetration. Since the allegations contained in the citation
are incorporated by reference into the petition for assessment o·f civi 1 penalty, the petition can only be construed as alleging a violation occurring
on the second shift. Indeed, the evidence adduced by the Respondent was
directed toward disproving a violation on the second shift. A review of all
the evidence reveals that the question of whether a violation occurred on the
day shift was not tried with the express or implied consent of the parties.

526

Accordingly, the petition for assessment of civil penalty will be dismissed as relates to Citation No. 20053, 6/19/78, 30 CFR 75.302-1.
2)

Citation No. 21804, 7/13/78, 30 CFR 75.200

MSHA inspector Billy R. Browning visited the Respondent's Pond Fork Mine
on July 13, 1978 to begin a regular inspection of the mine (Tr. 55-56). He
rode into the mine on a jeep and was accompanied by Mr. Douglas White, the
day shift mine foreman. (Tr. 56, 75-76). As they were riding through the
mine, the inspector observed that a roof fall had occurred in the crosscut
in which stopping No. 34 was located (Tr. 57, 63). The roof fall had been
corrected by the mine operator sometime prior to the inspector's arrival in
the area. (Tr.59-60). The fall area was supported according to the minimum
requirements of the roof control plan, but a new area of deterioration had
developed (Tr. 71). The inspector observed indications that a fresh crack
had developed, extending to a point 25 or 27 feet inby the fall area along
the right rib. (Tr. 57-59, 65). He testified that the crack was tied
"directly into the fall area" and that the roof over the track was a somewhat hazardous area as a result of the crack (Tr. 65). A visual estimate
revealed that loose and broken roof was present for a distance of six to
twelve inches beyond each side of the crack. (Tr. 69-70). The inspector's
observations led him to conclude that additional support was required (Tr.
60). The subject citation was. issued .at 9:30 a.m. encompassing both the
roof over the track to the left of the fall area and the crack in the rib
(Tr. 65), and states the following:
The roof over the main line track was inadequately supported in the crosscut intersection located at the No. 34
stopping in that loose and broken roof was present along the
right side and signs of cutting was present for a distance
of [25 or 27] feet.
(Exh M-3; Tr. 58).
The above-cited conditions observed along the track haulageway (Tr. 61)
allegedly constitute a violation of 30 CFR 75.200, which provides, in pertinent part, as follows: "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." It
is not alleged that the cited conditons constituted a violation of the
Respondent's roof control plan. (Tr. 60). However, it is well established
that where the evidence is sufficient to establish that the roof or ribs of
a mine were not adequately supported to protect persons from falls, it is
unnecessary to prove a violation of the roof control plan in order to sustain
a violation of 30 CFR 75.200. In Zeigler Coal Company, 2 IBMA .216, 80 I.D.
626, 1973-1974 OSHD par. 16,608 (1973), the Interior Board of Mine Operations
Appeals held "that an operator is under a duty to maintain a safe roof irrespective of any roof control plan and that the failure to do so constitutes
a violation of [30 CFR 75.200] ." 2 IBMA at 222.

527

There was no substantial disagreement between Inspector Browning and
Mr. White as to the existence of the crack. In fact, Mr. White testified
that the crack existed as designated by the inspector on Exhibit M-4, In
additition, I am unable to detect any meaningful discrepancies in their
testimony material to the issue of whether the conditions described by the
inspector establish the area as one in need of additional support. The
inspector testified that the crack was an indication of roof deterioration
(Tr, 66), I find the inspector's assessment a credible one, especially in
view of the presence of loose and broken roof for a distance of 6 to
12 inches on each side of the crack,
Mr. White candidly admitted that it would have been possible for the
roof to collapse in the near future, but qualified his assertion by indicating that it would be difficult to affirmatively state that it would or would
not have collapsed (Tr, 79). However, he testified that if he had observed
the condition without the inspector present, he would have installed supports (Tr. 79). I interpret this testimony as a further indication that
prudent mining practice required the installation of additional supports in
the cited area,
Therefore, I find that the conditions described by the inspector existed
as set forth in both the citation and his above-noted testimony, and that the
cited area was not supported or otherwise controlled adequately to protect
persons from falls of the roof or ribs,
Accordingly, I conclude that a violation of 30 CFR 75,200 has been
established by a preponderance of the evidence.
Negligence of the Operator
The inspector testified that he did not feel that the condition existed
as a result of a lack of due diligence or negligence on the operator's part
(Tr. 60), He based his opinion on the apparent freshness of the crack. He
did not believe that it had been in existence for a very long period of time
(Tr, 61). Mr, White shared the inspector's view that the crack appeared
fresh, basing his opinion on the absence of rock dust or float dust on it
(Tr. 83), He could not express an opinion as to how long the condition had
been present (Tr. 83),
Operator negligence is established when the evidence or the inferences
drawn therefrom establish that the operator knew or should have known of the
condition. The testimony of both Inspector Browning and Mr. White fails to
establish that the Respondent had actual knowledge of the condition.
Mr. White testified that he did not know the crack existed prior to observing
it (Tr. 77), In addition, the inspector testified that if the Respondent had
known about the condition it would have undertaken corrective action. He
based his opinion on his experience in inspecting the Pond Fork Mine (Tr.
64-65).
Accordingly, I conclude that there has not been a showing of negligence
on the part of the Respondent,

528

Gravity of the Violation
The length of the crack and the condition of the roof adjacent to the
crack have been set forth previously,
As noted previously,. the inspector testified that the crack in the rib
was tied directly into the fall area (Tr. 65), The inspector testified that
the area of the fall was not extremely large,' He testified that it was a
normal roof fall, entry wide, 4 or 5 feet thick and ten or 15 feet long
(Tr. 63), The fall area had been cribbed off (Tr, 63-64), Thus, the fall
area was behind the cribs, not in the travelway (Tr, 62-63). Specifically,
the inspector testified that when he arrived in the cited area he observed
that three cribs had been installed and 3 to 5 additional crossbars had been
installed across the roof with 5 by 7 or 6 by 8 square-sawed posts on the
left side of the track (Tr, 59-60, 66-70, Exh M-4), The inspector further
testified that this support had been installed at the time of the fall (Tr,
59-60),
Mr, White testified that the roof above the main track was in "pretty
fair shape," (Tr, 7 8), He further testified that a hairline crack was present in the roof over the main track extending a bit past where the crossbars had been installed (Tr, 79).
The inspector indicated that the condition was potentially serious,
Defective roof is in itself, a dangerous condition (Tr, 61),
The cited area was along a track haulageway, All persons entering the
mine's underground workings via the track entry would have been exposed to
the condition (Tr. 61).
Accordingly, I conclude that the violation was very serious,
Good Faith in Attempting Rapid Abatement
The condition was abated by installing four 42-inch cribs along the
right side of track and seven 5-inch by 7-inch by 14 foot headers against
the roof over the track, The headers were supported by five-by 7-inch
square-sawed posts located on the left side of the track (Exh M-3, Tr,
58-59), The inspector oEined that management took extraordinary steps to
abate the violation, based on the fact that Mr. White immediately ordered
the supply crew to load, transport and install cribs, crossbars and posts
·(Tr. 61-62),
Accordingly, I conclude that the Respondent demonstrated good faith in
attempting rapid abatement,
C)

History of Previous Violations

Exhibit M-2 is a computer printout compiled by the Directorate of
Assessments containing information on the history of previous violations
for which the Respondent had paid assessments from July 20, 1976 to July 19,
1978, as relates to the Pond Fork Mine,

529

During this two year period, the Respondent had paid assessments for
113 violations. Forty-two occurred in 1976, 42 occurred in 1977 and
29 occurred in 1978.
D)

Appropriateness of Penalty to Oper~tor's Size

Island Creek Coal Company Mines over 10 million tons per year, and' the
Pond Fork Mine mines from fifty to sixty thousand tons a year (Tr. 89).
Furthermore, the parties stipulated that Island Creek Coal Company is a
large operator (Tr. 5).
E)

Effect on Operator's Ability to Continue in Business

The parties stipulated that the assessment of any penalty in this proceeding will not affect the Respondent's ability to continue in business
(Tr. 5). Furthermore, the Interior Board of Mine Operations Appeals has
held that evidence relating to whether a civil penalty will affect the operator's ability to remain in business is within the operator's control,
resulting in a rebuttable presumption that the operator's ability to continue in business will not be affected by the assessment of a civil penalty.
Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380
(1972). Therefore, I find that penalties otherwise properly assessed in this
proceeding will not impair the operator's ability to continue in business.
IV

Conclusion of Law

1. Island Creek Coal Company and its Pond Fork Mine have been subject
to the provisions of the 1977 Mine Act at all times relevant to this proceeding.
2. Under the Act, this Administrative Law Judge has jurisdiction over
the subject matter of, and the parties to, this proceeding.
3. MSHA Inspector Billy R. Browning was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the
citations which are the subject matter of this proceeding.
4. The violation charged in Citation No. 21804, 7/13/78, 30 CFR 75.200,
is found to have occurred as alleged.
5. The violation charged in Citation No. 20053, 6/19/78, 30 CFR
75.302-1 is found not to have occurred as alleged.
6. 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 Conclusion of Law

Petitioner and Respondent submitted posthearing briefs. Respondent submitted a reply brief, and Petitioner submitted a response to the reply

530

brief. Such submissions, insofar as they can be considered to have contained
proposed findings and conclusions, have been considered fully, and except to
the extent that such findings and conclusions have been. expressly or
impliedly affirmed in this decision, they are rejected on the ground that
they are, in whole or in part, contrary to the facts and law or because they
are immaterial to the decision in this case.
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 assessment of a penalty
is warranted as follows:
Citation

Date

30 CFR
Standard

Penalty

21804

7/13/78

75.200

$200

ORDER
The Respondent is ORDERED to pay a civil penalty in the amount of $200
within 30 days of the date of this decision.
IT IS FURTHER ORDERED that Citation No. 20053, 6/19/78, 30 CFR 75.302-1
be, and hereby is VACATED and that the petition for assessment of civil
penalty be, and hereby is, DISMISSED as relates to such citation.

n F.
~~--~dministrative

Law Judge

Distribution:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
William K. Bodell II, Esq., Assistant Corporate Counsel, Island Creek
Coal Company, 2355 Harrodsburg Road, P.O. Box 11430,
Lexington, KY 40575 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

531

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

SECRETARY OF LABOR,
MINE SAFETY AND HEAL TH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. NORT 79-63-P
A/O No. 44-03614-03003

Petitioner

v.
No. 5-B Mine
HARMAN MINING CORPORATION,
Respondent
DECISION
Appearances:

Inga A. Watkins, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
Robert M. Richardson, Esq., Richardson, Kemper, Hancock &
Davis, Bluefield, West Virginia, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On January 31, 1979, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty against Harman
Mining Corporation (Respondent) in the above-captioned proceeding. 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) (1978) (1977 Mine Act), and
alleged violations of two provisions of the Code of Federal Re~ulations.
The Respondent filed its answer on March 5, 1979,
Pursuant to notices, the hearing was held on July 17, 1979, in Beckley,
West Virginia. Representatives of both parties were present and participated. Counsel for the Petitioner made two motions during the course of
the hearing: First, to dismiss the petition for assessment of civil penalty
as relates to Citation No. 321765, August 10, 1978, 30 CFR 75,523 (Tr. 4);
second, to amend the petition for assessment of civil penalty as relates to
Citation No, 321763, ·issued on August 10, 1978, to allege that the condition
described therein constitutes a violation of both 30 CFR 75.523 and 30 CFR
75.523-1 (Tr. 67). Both motions were granted (Tr. 4, 71),
A schedule for the submission of posthearing briefs was agreed upon
after the presentation of the evidence. However, subsequent events necessitated a revision thereof, The Petitioner and the Respondent filed posthearing briefs on November 14, 1979, and November 29, 1979, respectively.
Neither party filed a reply brief.

532

II.

III.

Violations Char~ed
Citation No.

Date

30 CFR Standard

321763

8/10/78

321765

8/10/78

75.523
75.523-1
75.523

y

Evidence Contained in the Record
A.

Stipulations

The stipulations entered into by the parties are set forth in the findings of fact, infra.
B.

Witnesses

The Petitioner called as its witness James O. Vandyke, a Mine Safety and
Health Administration (MSHA) inspector.
The Respondent called as its witnesses Eugene Carter, a repairman and
mechanical leader employed by the Respondent; and Paul Hurley, the Respondent's vice president of operations.
C.

Exhibits

1.

The Petitioner introduced the following exhibits into evidence:

(a) M-1 is a copy of Citation No. 321763, August 10, 1978,
30CFR75.523.
(b)

M-2 is a copy of the inspector's statement pertaining to

(c)

M-3 contains notes made by Inspector Vandyke.

M-1.

(d) M-4 is a computer printout compiled by the Directorate of
Assessments listing the history of violations for which the Respondent had
paid assessments beginning August 10, 1976, and ending August 10, 1978.
2.
IV.

The Respondent did not introduce any exhibits into evidence.

Issues

Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of 1977 Mine the Act occur, and (2) what amount should
1/ As noted previously, the petition for assessment of civil penalty was
dismissed as relates to this citation,

533

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.
V.

Opinion and Findings of Fact
A.

Stipulations

1. Harman Mining Corporation is a large operator, mining over
500,000 tons of coal per year and employing approximately 300 employees_
(Tr. 4).
2. The proposed penalty would not affect the operator's ability to
continue in business (Tr. 4).
B.

Occurrence of Violation

MSHA inspector James O. Vandyke visited the Respondent's No. 5-B Mine
at approximately 9 a.m., August 10, 1978, to make a complete health and
safety inspection (Tr. 16). He was accompanied on the inspection tour by
Mr. Roy Owens, an employee of the Respondent (Tr. 16, 18; Exh. M-1).
The inspector observed a canopy-equipped coal drill operating in the
face area of the No. 2 entry of the 001 section (Tr. 18, 100, Exh. M-1). At
the inspector's request, the coal drill operator tested the machine's deenergizing device at which time the inspector observed that the device would not
deenergize the machine (Tr. 18). A close examination revealed the presence
of a wooden cap wedge driven behind the device, propping it open (Tr. 18,
73). The inspector testified that absent the wedge it would have been
possible to cut the machine's electrical power by depressing the deenergizing
device (Tr. 73). Accordingly, the inspector issued the subject citation
alleging that "[t]he device being used to deenergize the coal drill on the
001 section quickly in the event of an emergency was inoperative" (Exh. M-1).
The petition for assessment of civil penalty, as amended, alleges that the
condition sets forth a violation of 30 CFR 75.523 and 30 CFR 75.523-1. The
latter regulation will be addressed first, and provides, in part, as follows:
(a) Except as provided in paragraphi (b) and (c) of
this section, all self-propelled electric face equipment
which is used in the active workings of each underground
coal mine on and after March 1, 1973, shall, in accordance
with the schedule of time specified in paragraphs (a)(l)
and (2) of this section, be provided with a device that
will quickly deenergize the tramming motors of the equipment in the event of an emergency. The requirements of
this paragraph (a) shall be met as follows:

534

(1) On and after December 15, 1974, for self-propelled
cutting machines, shuttle cars, battery-powered machines,
and roof drills and bolters;
(2) On and after February 15, 1975, for all other types
of self-propelled electric face equipment. [~]
The coal drill was trammed by two hydraulic tramming motors. A pump
turned by an electric motor provided the hydraulic pressure necessary to
operate the tramming motors. It pumped hydraulic fluid at the rate of
approximately 15 to 18 gallons per minute at a pressure of 1,200 to
1,400 pounds. After leaving the pump, the pressurized hydraulic fluid was
transmitted to a control box, or valve bank, and, in turn to the hyraulic
motors (Tr. 73-74, 129, 139-141). All hydraulic levers, including those
used to operate the tramming motors, were self-centering (Tr. 130), meaning
that the levers automatically returned to a neutral position when released
by the machine operator (Tr. 28, 112-113, 130). Releasing the tramming motor
levers would stop the flow of hydraulic fluid to the tramming motors and thus
stop the movement of the machine, assuming the levers self-centered (Tr.
29-30, 37, 75-76). Machine movement would be arrested almost instantaneously
(Tr. 112, 132). However, the electrically-powered pump would still be in
operation, providing pressure to the valve bank (Tr. 81). The lever could
then accidentally be pushed again starting movement of the drill.
The Respondent sets forth essentially two arguments germane to the
question of whether a violation of 30 CFR 75.523-1 occurred: First, the
regulation applies solely to electrical tramming motors and has no application to hydraulic tramming motors. Second, the coal drill was equipped with
a device that would quickly deenergize the tramming motors in the event of
2/ The exceptions set forth at 30 CFR 75.523-l(b) and (c) provide as
follows:
"(b) Self-propelled electric face equipment that is equipped with a
substantially constructed cab which meets the requirements of this part,
shall not be required to be provided with a device that will quickly
deenergize the tramming motors of the equipment in the event of an
emergency.
"(c) An operator may apply to the Assistant Administrator-Technical
Support, Mine Safety and Health Administration, Department of Labor,
4015 Wilson Boulevard, Arlington, Va. 222203 for approval of the
installation of devices to be used in lieu of devices that will quickly
deenergize the tramming motors of self-propelled electric face equipment
in the event of an emergency. The Assistant Administrator-Technical Support may approve such devices if he determines that the performance thereof
will be no less effective than the performance requirements specified in
§ 75.523-2. 11
The coal drill in question was canopy-equipped and thus not within the
30 CFR 75.523-l(b) exception to the general requirement. The Respondent
presented no evidence establishing the applicability of 30 CFR 75.523-l(c).

535

an emergency as required by 30 CFR 75.523-1. (Respondent's Posthearing
Brief, pp. 5-6). I disagree with both arguments. The purported distinction
between electrical tramming motors and hydraulic tralUIIling motors is superficial in view of the presence of the electrically-powered pump on the
hydraulic system. This electric motor was the primary source of power for
the hydraulic system. Any deenergizing device meeting 30 CFR 75.523-l(a)'s
requirement for "a device that will quickly deenergize the tramming motors
of the [self-propelled electric face equipment which is used in the active
workings] in the event of an emergency" must, of necessity, deenergize the
electric pump motor.
Additionally, 30 CFR 75.523-l(a) must be read in conjunction with the
requirements of 30 CFR 75.523-2(a), which provides as follows:
(a) Deenergization of the tramming motors of selfpropelled electric face equipment, required by paragraph (a)
of § 75.523-1, shall be provided by:
(1) Mechanical actuation of an existing pushbutton
emergency stopswitch,

(2) Mechanical actuation of an existing lever
emergency stopswitch, or
(3) The addition of a separate electromechanical
switch assembly.
This regulation mandates the use of one of three types of switches in
order to meet the requirements of 30 CFR 75.523-l(a). The term "switch" is
defined in Paul W. Thrush (ed.), A Dictionary of Mining, Mineral, and Related
Terms (Washington D.C.: U.S. Department of the Interior, Bureau of Mines)
0968) at page 1111 as: "A mechanical device for opening and closing an
electric circuit; a mechanism for shifting a moving body in another direction." Given the context of electric face equipment, a "switch" must be
construed as referring to a mechanical device for opening and closing an
electric circuit.
It is clear from the evidence contained in the record that the coal
drill's self-centering hydraulic levers were not "switches" within the
meaning of 30 CFR 75.523-2(a), since they did not open and close an electric circuit. It would be accurate to state that they opened and closed a
hydraulic circuit, but as such were inadequate to provide complete
deenergization of the tramming motors. That could only be achieved through
the deenergization of the electrically-driven pump.
In addition we find that 30 CFR 75.523-2 went on to provide further
performance requirements for such deenergization equipment by providing as
follows in subsections (b) and (c):
(b) The existing emergency stopswitch or additional
switch assembly shall be actuated by a bar or lever which

536

shall extend a sufficient distance in each direction to
permit quick deenergization of the tramming motors of selfpropelled electric face equipment from all locations from
which the equipment can be operated.
(c) Movement of not more than 2 inches of the actuating
bar or lever resulting from the application of not more than
15 pounds of force upon contact with any portion of the
equipment operator's body at any point along the length of
the actuating bar or lever shall cause deenergization of the
tramming motors of the self-propelled electric face equipment.
Such panic bar did exist on the subject equipment but a wooden wedge
had been driven behind it to stop it from functioning. It is clear from
30 CFR 75.523-2 that such a panic bar is what was contemplated by the
regulations in question.
In light of these considerations, it cannot be concluded that the
levers were adequate to meet the requirements of 30 CFR 75.523-l(a).
Accordingly, the Respondent's arguments are not persuasive on the issue
of whether a violation occurred.
The presence of the wooden cap wedge is, however, determinative. I
read 30 CFR 75.523-l(a) as requiring an operable emergency deenergizing
device on the coal drill. Since the evidence establishes that the placement of the wedge rendered the device inoperable, it must be found that a
violation of 30 CFR 75.523-l(a) has been established by a preponderance of
the evidence.
In view of this finding, it is unnecessary to determine whether the
above-stated facts establish a violation of 30 CFR 75.523.

c.

Negligence of the Operator

Mr. Carter te.stified that the machine had been purchased as used mine
equipment from Mercer Welding in Bluefield, West Virginia. He did not know
whether the emergency deenergizing device had been installed by the original
manufacturer but his testimony indicated that it had been installed prior
to the purchase by the Respondent (Tr. 126).
The testimony of both Inspector Vandyke and Mr. Carter indicates that
the deenergizing device had been rendered inoperative through the placement
of the wooden cap wedge in order to compensate for the device's poor design
and installation. This design and installation deficiency rendered it
virtually impossible to dperate the machine without blocking-out the
deenergizing device, as attested to by the inspector's conversation with
the coal drill operator:

Q. Mr. Vandyke, were any statements made to you by
the operator or any of the miners concerning this alleged
violation?

537

A. Well, the operator of the machine said that the
device, when it was operative and not being blocked out,
would, in the normal functions of the machine, in tramming the machine from one face to another, the vibrations
and so on, and being that the deck was narrow, he said
that he was required to lean into close proximity of the
device and he said that he would bump it off several times
because of the design of the working deck of the machine.
(Tr. 24).
I find this hearsay testimony entitled to great probative weight
because the testimony of Mr. Carter confirms, in part, the assertions of
the hearsay declarant. Mr. Carter testified that he could understand why
the wedge had been used to render the deenergizing device inoperable (Tr.
120). During cross-examination, he testified as follows:
THE WITNESS: [The deenergizing devices] are trouble.
They are balanced out. A rough botton [sic] or vibration
will knock them off; shut you down. I mean, you will
working [sic] and all of a -sudden it will de-energize the
machine a~it will stop. If you want to stop, turn loose
your lever; it will stop.
They're not supposed to do it, but sometimes the operator will -- I suppose that's the way it got there. I don't
think it got there by accident; it may have.
(Tr. 119).
It can be inferred that the deficiency had existed for a considerable
period of time. Corrective action should have been taken at the .time of
purchase or as soon as the deficiency was apparent. Given the nature of the
deficiency, the Respondent should have foreseen the miners blocking out the
device in order to perform their assigned mining tasks.
Additionally, the condition should have been detected during the weekly
examinations of electric equipment required by 30 CFR 75.512-2.
Accordingly, I conclude that the Respondent demonstrated far more than
ordinary negligence.
D.

Gravity of the Violation

The No. 5-B Mine has an uneven surface with water and mud in various
locations (Tr. 16, 124). The inspector testified that the machine operator
requires the ability to deenergize the machine in emergency situations to
prevent striking another control lever prior to regaining his composure (Tr.
20). According to Inspector Vandyke, the coal drill operator could lose
control of the machine due to the uneven surface and, in a state of fright

538

or panic, pull the wrong levers (Tr. 21). The machine could pin him against
a rib, timber, or another machine (Tr. 21, 97). The uneven surface could
also result in a loss of control while tramming to another working face.
Pulling the wrong lever could result in injuries to other miners (Tr. 21).
Additionally, the machine operator could encounter other persons or another
machine while traveling through one of the fly curtains used to help ventilate the working faces (Tr. 21-22).
The inspector indicated that all miners on the section would have been
exposed to the hazard, a figure placed at approximately eight men (Tr. 18,
22). However, he testified that only one person would sustain injury during a given occurrence (Tr. 22). Anticipated injuries ranged from broken
bones and contusions to death (Tr. 97).
These considerations, standing alone, point to a very serious violation.
However, an appropriate assessment of the gravity of the violation requires
that consideration be accorded to the characteristics of the self-centering
hydraulic levers bearing upon safety. Messrs. Carter and Hurley testified
that the machine moved at approximately 70 to 75 feet per minute, i.e.,
slowly (Tr. 112, 132). Releasing the levers would cause the machi;-e-to stop
in less than 1 foot, depending on the conditions (Tr. 132), and also lock
the wheels (Tr. 117). Thus, according to Mr. Hurley, the machine would stop
quickly in the event of an emergency (Tr. 131).
It should be noted that the machine could coast for approximately 6 to
10 feet by leaving the hydraulic lever in the forward position with the
pump motor deenergized (Tr. 133). However, I find it unlikely that such an
event would occur in the event of an emergency if the levers self-centered
properly. There was no evidence adduced establishing that they were defective in any manner.
Once the lever is self-centered there is the possibility that it could be accidentally pushed forward again.
Considering all apsects, I conclude that the violation was moderately
serious.
E.

Good Faith in Attempting Rapid Abatement

The Respondent abated the violation in 15 minutes (Tr. 18, Exh. M-1).
Accordingly, it is found that the Respondent demonstrated good faith in
attempting rapid abatement.
F.

History of Previous Violations

The history of previous violations at the Respondent's various mines
for which the Respondent had paid assessments during the 24 months prior to
August 10, 1978, is set forth as follows:
Violations of
30 CFR
All Sections
Section 75.523-1

Year 1
8/11/76 - 8/10/77

Year 2
8/11/77 - 8/10/78

Totals

176

89
2

265
10

8

539

G.

Appropriateness of Penalty to Operator's Size

The parties stipulated that Harman Mining Corporation is a large
operator, mining over 500,000 tons of coal per year and employing over
300 employees (Tr. 4).
H.

Effect on Operator's Ability to Continue in Business

The parties stipulated that the proposed penalty would not affect the
operator's ability to continue in business (Tr. 4). Furthermore, the
Interior Board of Mine Operations Appeals has held that evidence relating
to the issue as to whether a civil penalty will affect the operator's
ability to remain in business is within the operator's control, resulting
in a rebuttable presumption that the operator's ability to continue in
business will not be affected by the assessment of a civil penalty. Hall
Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (19~
Therefore, I find that penalties otherwise properly assessed in this proceeding will not impair the operator's ability to continue in business.
VI.

Conclusions of Law

1. Harman Mining Corporation and its No. 5-B Mine have been subject
to the provisions of the 1977 Mine Act at all times relevant to this
proceeding.
2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding.
3. MSHA inspector James o. Vandyke was a duly authorized representative of the Secretary of Labor on August 10, 1978.

4. The oral determination made at the hearing granting the Petitioner's motion to dismiss the petition for assessment of civil penalty
as relates to Citation No. 321765, August 10, 1978, 30 CFR 75.523, is
AFFIRMED.
5. The oral determination made at the hearing granting the Petitioner's motion to amend the petition for assessment of civil penalty as
relates to Citation No. 321763, issued on August 10, 1978, to allege a
violation of both 30 CFR 75.523 and 30 CFR 75.523-1 is AFFIRMED.
6. The condition set forth in Citation No. 321763, issued on
August 10, 1978, is found to have occurred and to constitute a violation
of 30 CFR 75.523-1.
7. 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

Both parties submitted posthearing briefs. Such briefs, insofar as they
can be considered to have contained proposed findings and conclusions, have

540

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

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:
Citation No.

Date

321763

8/10/78

30 CFR Standard
75.523-1

Penalty
$175

ORDER
A. The oral determination made at the hearing granting the Petitioner's
motion to dismiss the petition for assessment of civil penalty as relates to
Citation No. 321765, August 10, 1978, 30 CFR 75.523, is AFFIRMED.
B. The oral determination made at the hearing granting the Petitioner's
motion to amend the petition for assessment of civil penalty as relates to
Citation No, 321763, issued on August 10, 1978, to allege a violation of both
30 CFR 75.523 and 30 CFR 75.523-1 is AFFIRMED.
C, The Respondent is ORDERED to pay a civil penalty in the amount of
$175 within 30 days from the date of this decision,
D, IT IS FURTHER ORDERED that Citation No, 321765, August 10, 1978,
30 CFR 75.523, be, and hereby is, VACATED and that the petition for assessment of civil penalty, be, and hereby is, DISMISSED as relates to said
citation.

Distribution:
Inga A, Watkins, Esq,, Office of the Solicitor, U,S, Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Robert M, Richardson, Esq., Richardson, Kemper, Hancock & Davis,
P,0, Box 411, Bluefield, WV 24701 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

541

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

FEB 2 5 \Q~

CLIMAX MOLYBDENUM COMPANY,
A division of AMAX, Inc.,
Contestant
v.

Contest of Citat.ion and Order
Docket No. WEST 79-92-RM
Citation No. 334415
April 18, 1979

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

Order No. 33417
April 18, 1979

Respondent

Climax Mine

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

Civil Penalty Proceeding
Petitioner
Docket No. WEST 80-108-M
A.O. No. 05-00354-05032R

v.

CLIMAX MOLYBDENUM COMPANY,
A division of AMAX, Inc.,
Respondent

Climax Mine

DECISIONS
Appearances:

W. Michael Hackett, Esquire, Golden, Colorado, and
Todd D. Peterson, Esquire, Crowell & Moring,
Washington~ D.C., for contestant-respondent Climax
Molybdenum Company;
Robert A. Cohen, Attorney, Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
petitioner-respondent MSHA.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a section 104(a) citation and
subsequent 104(b) order issued by MSHA pursuant to the Federal Mine Safety
and Health Act of 1977, charging Climax Molybdenum Company with a violation
of section 103(a) of the Act for its refusal to permit MSHA inspectors to
bring cameras on its mine property in the course of their inspections for
the purpose of documenting violations of the Act and safety and health

542

standards promulgated thereunder. The parties waived an evidentiary hearand submitted the case for decision on the record, which includes the
pleadings and legal arguments presented in the proposed findings, conclusions, and supporting briefs filed by the parties.
i~,

There does not appear to be any dispute as to the facts which precipitated the controversy at issue in these proceedings. On April 18, 1979, MSHA
inspectors commenced a regular safety and health inspection of the Climax
Mine. The inspectors carried with them ins.tamatic cameras with flash attachments for the purpose of recording potential violations of the Federal Mine
Safety and Health Act of 1977. Climax spokesman David Helmer refused to permit the MSHA inspectors to bring the photographic equipment along on the
inspection. Climax's refusal of permission was based upon a uniform company
policy that prohibits non-employees from using photographic equipment on
Climax property and upon Climax's belief that MSHA was not statutorily permitted to use the equipment for the purpose of documenting violations.
As a result of the refusal, inspector Richard H. White issued a section
104(a) citation, No. 334415, which alleged a violation of section 103(a) of
the Act. Subsequently, Inspector White issued a section 104(b) order,
No. 334417, for failure to abate the citation. Climax subsequently filed a
contest under section 105 of the Act in order to challenge the citation and
order, and based on a stipulation of the facts, and at the request of the
parties, I cancelled the scheduled hearing and ordered the parties to file
briefs.
Petitioner's pleadings filed in the civil penalty proposal (Docket No.
WEST 80-108-M) states that Citation No. 334415 was issued pursuant to section 104(a) of the Act, and that the specific standard cited was "30 CFR
103(A) ." A copy of the citation attached to the pleadings and proposal
reflects that it was issued on April 18, 1979, at 10:03 a.m., by MSHA
inspector Richard H. White, and the condition or practice alleged to be
a violation is described as follows on the face of the citation: "A
spokesman for the company in the pre-inspection confe.rence would not let
MSHA inspector carry cameras underground for the purpose of taking pictures of violations which were to be a citation or order."
The inspector fixed the abatement time as 10:33 a.m., April 18, 1979,
and at 10:45 a.m. that same day he issued a section 104(b) order of withdrawal citing a violation of section 103(a) of the Act, and the condition
or practice is again described as follows: "The spokesman for the company
still will not allow MSHA inspectors to take cameras underground for the
purpose of taking pictures of violations." The area required to be closed
by- the withdrawal order is described as "none."
In its answer filed in response to the proposal for assessment of a
civil penalty for the alleged violation, Climax states that there was no
violation of section 103(a) because there is no authority under the Act
or its regulations for MSHA to utilize photographic equipment during the
course of regular health and safety inspections. In contesting both the
citation and order, Climax asserts that:

543

1. The provisions of § 103(a) of the Mine Act, cited
by the inspector as the basis for the issuance of the citation/ order, do not authorize the use of photographic equipment in underground mines during the course of regular
health and safety inspections conducted by the MSHA
inspectors.
2. MSHA has no specific regulatory authority which
justifies the use of photographic equipment during regular
health and safety inspections of underground mines.
3. The use of photographic equipment underground by
MSHA inspectors may actually expose miners to unsafe
conditions.
4. The use of photographic equipment on Climax company
property by non-employees is in violation of Climax policy.
5. The use of photographic equipment by MSHA inspectors is in violation of the interim rules of the Commission
concerning the proper manner for taking discovery in administrative litigation cases.
6. Utilization of photographic equipment by MSHA
inspectors creates the potential for disclosure of information which is proprietary in nature, and thus would divest
Climax of the right to have this information remain outside the domain of public knowledge.
7. The improvement of safety is not advanced by the
utilization of photographic equipment during the course of
MSHA regular health and safety inspections.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

~~·
2.

Section 103(a) of the Act provides, in pertinent part:

Authorized representatives of the Secretary or the Secretary of Health, Education, and Welfare 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 of 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

544

§

801

any citation, order or decision issued under this title or
other requirements of this Act** *· For the purpose of
making any inspection or investigation under this Act, the
Secretary, or the Secretary of Health, Education, and
Welfare shall have a right of entry to, upon, or through
any coal or other mine. [Emphasis added.]
Section 103(b) states in pertinent part:
For the purpose of making any investigation of any
accident or other occurrence relating to health or safety
in a coal or other mine, the Secretary may, after notice,
hold public hearings, and may sign and issue subpoenas for
the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths.
Section 103(e) provides:
Any information obtained by the Secretary or by the
Secretary of Health, Education, and Welfare under this Act
shall be obtained in such a manner as not to impose an
unreasonable burden upon operators, especially those operating small businesses, consistent with the underlying
purposes of this Act. Unnecessary duplication of effort
in obtaining information shall be reduced to the maximum
extent feasible.
Section 104(a) provides:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator of
a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to this Act, he
shall, with reasonable promptness, issue a citation to the
operator. Each citation shall be in writing and shall
describe with particularity the nature of the violation,
including a reference to the provision of the Act, standard,
rule, regulation, or order alleged to have been violated.
In addition, the citation shall fix a reasonable time for
the abatement of the violation. The requirement for the
issuance of a citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement of
any provision of this Act.
Issues Presented
1. Does section 103(a) of the Act grant MSHA inspectors the authority to take cameras into or onto mine property for the purpose of taking

545

photographs of alleged conditions or practices which they believe constitute
violations of mandatory safety or health standards?
2. Can MSHA inspectors use photographic equipment during a regular
heal th and safety inspection irrespective of formal Secretarial rulemaking
authorizing the use of cameras by MSHA personnel?
3. Can a mine operator be cited under section 103(a) of the Act for
refusal to permit MSHA inspectors to take photographic equipment with them
underground?
Additional issues raised by the parties are discussed in the course of
these decisions.
DISCUSSION
Contestant's Arguments
In support of its position, Climax asserts that since the Climax Mine
is private property, and since freedom from unreasonable Government intrusion is one of the fundamental guarantees of the Constitution, in the
absence of any statutory authority to the contrary, Climax may regulate
the Government's entry and activity in the mine. lb.us, if the Government
seeks to transgress upon the established privacy rights of Climax, it must
at the very least, possess some explicit statutory authority to do so.
Assuming, arguendo, that there exists such statutory authority, Climax
asserts that it is found in section 103(a) of the Act, and that from its
point of view, the issue here is whether that section of the Act unequivocally authorizes MSHA to intrude upon Climax's privacy and property rights
by taking photographs solely for use as evidence at trial in a contested
proceeding.
In further support of its arguments, Climax asserts that the strictness or liberality with which the words of section 103(a) are construed
must be determined by reference to the nature of that particular section
as it applies to the issue in this case, and that it is well settled that
a remedial statute may be broadly construed for most purposes, yet strictly
construed where it is punitive or treads close to constitutionally-protected
areas. 3 C. Sands, Sutherland Statutory Construction, §§ 58.03, 6J.04
(1973). Even though the substantive provisions of the Act, as remedial
legislation, may be construed liberally, Climax argues that the proper focus
in the context of the present case is not upon the nature of the Act as a
whole, but rather on the specific statutory provision at issue, as it
impacts upon the parties in this case. lb.us, the effect of section 103(a)
alone must determine the nature of the construction given that provision.
Foremost among the factors justifying a strict construction of section
103(a), argues Climax, is the danger that MSHA's use of photographic equipment, particularly in the context of a warrantless inspection, would further
encroach upon Climax's constitutionally-protected right of privacy. The
fourth amendment guarantees of freedom from unreasonable searches applies to

546

Climax as it does to any homeowner, and the Supreme Court has consistently
refused to uphold otherwise unreasonable searches simply b.ecause commercial
establishments were the subject of the search. Go-Bart Importing Company
v. United States, 282 U.S. 344 (1931); Amos v. United States, 255 U.S. 313
(1921); Silverthrone Lumber Company v. united States, 251 U.S. 385 (1920).
"The businessman, like the occupant of a residence, has a constitutional
right to go about his business free from unreasonable official entries upon
his private connnercial property." See v. City of Seattle, 387 U.S. 541,
543 (1967), accord, Marshall v. Barlow's, Inc., 436 U.S. 307, 311-12 (1978).
Climax argues that the Supreme Court has specifically emphasized that
fourth amendment rights must be protected by limitations on the right of
the Government to invade premises during an administrative search. Camara
v. Municipal Court, 387 U.S. 5223 (1967); See v. City of Seattle, supra;
Marshall v. Barlow's, Inc., supra. Since MSHA inspections may result in
criminal as well as civil liability (see, e.g., section llO(d) of the Act),
Climax asserts that the full range of constitutionally-based self-protection,
as well as privacy guarantees, shield the Climax Mine from unreasonable
Government intrusion, Camara v. Municipal Court, supra, 387 U.S. at 520,
and that "[i]f the government intrudes upon a person's property, the privacy interest suffers whether the government's motiviation [sic] is to
investigate violations of criminal laws or breaches of other-st"atutory or
regulatory standards," Marshall v. Barlow's, Inc., supra, 436 U.S. at 31213.
Climax suggests that the danger of unreasonable Government interference
is even greater in the case of a warrantless search, and even asstnning that
the warrantless search of its mine did not run afoul of the fourth amendment, the warrantless nature of the search created greater dangers for
invasion of Climax's constitutionally-protected privacy, and in such a setting, the Supreme Court has always strictly limited the scope of permissible
warrantless searches, citing Michigan v. Tyler, 436 U.S. 499 (1978), a case
in which fire officials had made repeated warrantless entries of a building
in order to search for evidence of arson. The Court held that fire officials
needed no warrant to enter a burning building because entry to extinguish a
fire was "reasonable." The Court further held that once in the building,
the fire fighters could remain for a reasonable time to take only evidence
in plain view and to investigate the cause of the fire. After the initial
exigency, however, any further reentry to investigate required either a warrant or the consent of the property owner. Tilus, Climax asserts that the
scope of a permissible warrantless search is restricted by the fourth amendment privacy rights of the property owner, and even where a warrantless
search is permitted, the scope of the authorized search is exceedingly narrow; citing Chimel v. California, 395 U.S. 752 (1969) (searches incident to
arrest); Terry v. Ohio, 392 U.S. 1 (1968) (pat-downs for weapons); and even
where the courts have upheld the right of MSHA to conduct warrantless
searches, they have recognized that the searches must be limited in scope,
Marshall v. Nolichuckey Sand Corporation, 606 F.2d 693 (6th Cir. 1979).

547

Climax asserts that to grant the inspector wide latitude to engage in
activities not expressly authorized would result in an unwarranted and
unreasonable intrusion upon Climax's constitutionally-shielded right of privacy, and that the problem is exacerbated in the case of photographs for a
number of reasons. Photographs have the great potential of revealing trade
secrets or other proprietary information, and MSHA could unwittingly reveal
sensitive information about Climax's production or mining practices. The
creation of a permanent pictorial record of Climax's private mining facilities thus compounds the invasion of privacy severalfold; it opens up Climax
property not only to the inspector, but effectively to all who might see the
photographs. This multiplier effect therefore enhances Climax's need for
protection and justifies a close reading of MSHA's statutory powers on this
specific issue.
Climax argues further that the impact on its privacy and proprietary
operations is further increased by the fact that the use of photographic
equiµnent and its accompanying flash attachments could distract miners whose
attention must be focused entirely on the safe operation of massive machinery
in confined underground spaces. Thie mere presence of Government inspectors
is distracting enough to Climax's miners; taking pictures with a flash has
much greater potential for disrupting normal operations and diminishing
safety during the•mining process. This factor simply reinforces Climax's
protected privacy interest in avoiding added MSHA intrusion into its
property.
Finally, Climax asserts that strict construction is even more appropriate where there is no explicit regulation or formal MSHA action authorizing
the use of photographic equipment, and points to the fact that by contrast,
OSHA inspectors are specifically authorized by regulation to take photographs
during the course of an inspection, 29 CFR 1903.7(b), and which may be used
in a subsequent enforcement hearing. MSHA, however, has no comparable regulation; in fact, there appears to be no official MSHA authorization at all
for the attempted use of photographic equipment by Inspector White. In the
absence of a formal authorizing regulation, MSHA inspection practices ought
to be strictly limited. Since MSHA has not officially sanctioned the use
of photographic equipment, the informal practices of· individual inspectors
or district managers are not entitled to great deference. Particularly in
an area where privacy rights are implicated, the scope of an inspector's
informal power, unauthorized by specific regulation, ought to be carefully
circumscribed.
In addition to its fourth amendment arguments, Climax asserts that
section 103(a) of the Act contains no explicit authorization to take
photographs, and that any such authority must be inferred from the general inspection power. The photographs, and the use to which they are put,
must achieve in some direct and concrete manner one of the four statutorilyprescribed purposes for MSHA inspections. If the photographs are not reasonably calculated to achieve one of the four-stated purposes, then their
use is not authorized by the statute.

548

Climax asserts that the purpose for which MSHA intends to use photographs taken in the course of an inspection was made clear in a recent case
involving the same parties, Climax Molybdenum v. MSHA, DENV 78-581-M (Judge
Cook; hearing date, January 31, 1979), where MSHA inspector James Enderby
testified as follows:
Well, since our first meeting here in November, the
District Manager has issued cameras as inspection equipment
to every inspector in the district. We are instructed as a
policy from now on, from that point forward, if we think we
are going to have a citation that we write or whatever,
that could come into litigation, to take a picture of that
particular violation.

*

*

*

*

*

*

*

Now, anytime we write a violation that we think will
be, or has a possible chance of being litigated, to take a
picture of it in all the surrounding circt.nllstances.
Climax argues that this testimony makes it clear that MSHA inspectors
in this district are attempting to use photographic equipment in preparation
for potential litigation, and that the sole conceivable justification is to
develop evidence for use at trial. In these circt.nllstances, Climax believes
that the inspector ceases to be an enforcement officer of MSHA and instead
becomes an agent of the Solicitor to aid the lawyer in preparing his case,
and in this context his inspection is not for violations; but a form of
extrajudicial pretrial discovery. In support of its arguments, Climax
asserts that the taking of photographs to be used as evidence in a later
hearing does not further any of the statutorily-enumerated purposes of section 103(a) and therefore is not authorized by the Act. The first two purposes clearly do not apply to the present situation. The use of photographs
as evidence in a hearing does not involve "obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes
of accidents, and the causes of diseases and physical impai~nents originating
in such mines." This section is aimed at the generation of publicity and
public information relating to mine safety and health, not to the development of evidence for use in a hearing. Thus, while it might authorize the
taking of photographs for the purpose of studying some specific condition
or disseminating information to the public, it does not justify the use of
photographic equipment for the purpose of corroborating an inspector's
testimony at a hearing.
The second statutory purpose, "gathering information with respect to
mandatory health or safety standards," grants power to conduct resear.ch in
order to develop effective regulations for the protection of safety and
health. It does not contemplate use in an enforcement proceeding of the
information gathered pursuant to its provisions. Thus, it cannot authorize
the taking of photographs for use as evidence in an enforcement hearing.

549

The third and fourth purposes authorize inspections only for "determining whether an imminent danger exists" and "determining whether there is
compliance with the mandatory health and safety stand.ards * * * ." Simply
stated, this section authorizes an inspector to travel the mine to assure
himself that no imminent dangers exist and that the operator is complying
with the mandatory standards. It does not authorize an inspector to do
whatever is helpful to the Solicitor's Office for the purpose of persuading
an administrative law judge that a violation existed when the inspector
visited the mine.
Photographs for use in a hearing are not taken to help the inspector to
determine whether a violation or innninent danger exists; rather, the photographs are used later to support the Solicitor's case that a violation did
exist. Thus, the taking of photographs is distinguishable from the taking
of air samples, measurements, or other physical evidence where the evidence
is used by the inspector to determine whether a standard has been violated
rather than as corroboration of the inspector's judgment that a violation
existed. The section does not authorize unlimited sleuthing solely for the
purpose of preparation for trial. The development of trial evidence is more
properly within the scope of prehearing discovery and is therefore outside
the ambit of the explicit authority granted by section 103(a).
Climax asserts that when Congress intended MSHA to have evidencegathering capabilities similar to pretrial discovery, it explicitly granted
such authority in very limited instances. Pursuant to section 103(b) of
the Act, MSHA is empowered to take testimony and compel production of documents in the course of an investigation, but no such powers are authorized
for use during an inspection. Thus, although the Solicitor could take
depositions and compel production of documents in preparation for a hearing on a challenged citati0n, MSHA inspectors are not authorized to gather
such evidence during the course of an inspection. This provision confirms
the division between those activities that are required in order to enable
an inspector to determine the existence of a violation and those activities
that are solely for the purpose of gathering evidence for trial. Citing
the legislative history of both the 1969 and 1977 Acts, Climax asserts that
nowhere is there any indication that Congress authorized inspectors to
gather, in the course of a warrantless inspection, evidence to be used at
a later trial, and the only authority granted is the power to determine
whether the inspector believes there is a violation of the Act.
Finally, Climax argues that any statutory authority granted by section
103(a), must be strictly construed in light of the important privacy rights
at stake, and it does not include the power to take photographs solely for
the use as evidence at trial. Such evidence is not necessary to make a
determination that a violation exists, rather, it is more appropriately considered a part of pretrial discovery that is best carried out under some
form of judicial supervision, as for example, Commission Procedural Rule 57,
29 CFR 2700.57, which specifically provides that good cause must be shown to
obtain an order to permit, inter alia, "photographing of designated documents
or objects, or to permit a party or his agent to enter upon designated land
to inspect and gather information."

550

~sHA' s

Arguments

MSHA argues that section 103(a) of the Act authorizes frequent mine
inspections for the purpose of obtaining information concerning compliance
with mandatory heal th or safety standards, and that section 103( e) mandates
that this be done in such a manner as to not impose unreasonable burdens
upon mine operators. MSHA points out that the basic method utilized by an
inspector to determine compliance is by visual observations of mine conditions and practices. However, since there are many occasions when an
inspector is required to use certain types of equipment or testing devices
to determine if an operator is in compliance, the equipment could include
methane detectors, respirable dust-sampling equipment, and smoke tubes.
Here, the MSHA inspector sought to bring a camera with him as part of his
regular equipment in order to better establish the existence of certain
conditions, and any photograph taken would have been a part of the regular
inspection process. Since there is little doubt that an inspector has the
right to take and remove from a mine air and dust samples, MSHA asserts
that the use of a camera to take photographs to support his belief that a
violation has occurred is also appropriate, and in fact, necessary to adequately perform his duties.
In support of its position, MSHA argues that inherent in the inspector's duty to gather information under the Act is the right to preserve
that information in a form in which it can be used at a later time if the
inspector's enforcement actions are contested. Since the Act sets forth
a procedure for contesting MSHA's enforcement actions, an inspector should
be allowed to support his findings by any means which are consistent with
section 103(a). While inspectors' notes and drawings of conditions
observed are helpful, photographs taken at the time violations are cited
can be especially useful in doctunenting findings that have previously been
made, and the use of cameras by MSHA personnel to support enforcement
actions will be helpful in resolving credibility questions which arise
when citations are contested by mine operators.
MSHA asserts further that the Act requires all underground mines to
be inspected at least four times a year, and because of the limited ntunber
of inspectors available to carry out the mandate of the Act, an inspector
may be in an area of a mine where he is required to take some enforcement
action for only a short period of time. If a particular enforcement
action is contested by an operator, an inspector may not have the opportunity to revisit the mine prior to a hearing before an administrative law
judge. Any hearing of a contested violation may take place many months
after the initial enforcement action was taken by the MSHA inspector. All
of these factors may result in the testimony of MSHA inspectors being found
too vague when it comes to describing the conditions they actually observed
prior to issuing a citation or withdrawal order. Operators who are seeking
to contest MSHA enforcement actions may have similar problems when presenting evidence to support their position. Mine management personnel who
appear at hearings frequently base their testimony concerning contested
conditions on hearsay statements of other employees who are not available

551

for cross-examination. 'Th.is type of testimony can result in difficult
credibility problems which must be resolved by an administrative law judge
before he can determine if a violation of the Act has occurred.
MSHA takes the position that the use of photographs would serve to
reduce the amount of time spent by its inspectors, as well as mine operators, in exploring the circumstances under which a violation has occurred.
MSHA states that many times a judge is not fully apprised of the severity
of a violation because of the inability of an inspector to accurately
describe all of the conditions which lead to the issuance of his enforcement action. However, since courts have generally upheld the use and
admission of photographs to give the trier of facts a better understanding of conditions at the scene of an accident, Louisville & N.R. Company
v. Brown, 127 Ky. 732, 746, 196 S.W. 795, 798 (Ky. 1908), MSHA asserts
that the same rationale which makes the use of photographs admissible in
accident cases in supporting the testimony of witnesses is directly applicable to their use by MSHA inspectors to support their judgments that a
violation of the Act has occurred. Under certain circumstances, the use
of photographs will be able to convey to an inspector's supervisor, an
assessment officer, or to an administrative law judge, a better impression
as to whether or not a violation of the Act has occurred than could the
inspector's verbal description of the conditions he observed. Of course,
said photographs must usually be taken at the time the violation is
observed. Recognizing the fact that before a photograph can be introduced
at a hearing, it has to be authenticated that the photograph is substantially accurate and purports to represent accurately the condition or
practice that it is seeking to portray, MSHA emphasizes that a photograph
will not itself establish a violation of the Act, but will merely be
used to support an inspector's testimony in those situations where conflicts in testimony arise. Any photograph which is not material to the
condition or practice sought to be established by the inspector will be
subject to objection for reasons of relevancy and materiality.
With regard to Climax's contention that the Secretary has not formally
conducted any rulemaking with respect to the use of cameras as part of
MSHA's enforcement scheme, similar to the OSHA regulation cited by Climax,
MSHA asserts that Climax ignores the fact that administrative agencies are
not required to resort to formal rulemaking in order to develop all policies
.and procedures necessary to aid in the enforcement process, and cites Human
Resources Management, Inc. v. Weaver, 442 F. Supp. 241, 251 (1978), and
the Supreme Court's holding that: "Absent constitutional constraints· or
extremely compelling circumstances administrative agencies should be free
to fashion their own rules of procedure and to pursue methods of inquiry
capable of permitting them to discharge their multitudinous duties.
Vermont Yankee Nuclear Power Corp. v. NRDC, 55 L.Ed 2nd 460, 479 (1978) ."
In further support of its position, MSHA states that it is clear that
the Act authorizes a mine entry by its inspectors to observe conditions in
the mine, and that the use of a camera to preserve those conditions underground is a natural extension of the right of entry since a photograph is

552

a mere picture of those conditions already observed, and the act of taking
MSHA further
believes that when an inspector uses a camera to support his judgments made
with respect to the enforcement provisions of the Act, he is engaging in an
efficient recognized method of inquiry. No individual rights of mine operators are affected, nor is the authorizing of the use of cameras by MSHA
inspectors as part of their equipment, a substantive rule or policy that
relates to the public and therefore must be published in the Federal
Register. Therefore, no new rulemaking is necessary.

a photograph cannot support a claim for invasion of privacy.

MSHA has submitted a copy of an April 30, 1979, policy memorandtml from
its Metal and Nonmetal Mine Safety and Health Administrator addressed to
its Metal and Nonmetal Mine Safety and Health District Managers, regarding
the use of cameras by inspectors during mine inspections. Tiiat memorandum
states as follows:
Pursuant to section 103(a) of the Mine Act, inspectors make
frequent inspections of mines for purposes of (1) obtaining
information relating to health and safety conditions, and
the causes of accidents, (2) gathering information with
respect to mandatory health or safety standards, (3) determining whether an irrnninent danger exists, and (4) determining whether there is compliance with the mandatory health
or safety standards or other requirements of the Mine Act.
Inasmuch as the Mine Act establishes the purposes of inspections, it follows that an inspector may take into the mine
the equipment necessary to accomplish his mission.
This equipment could include, in appropriate circumstances,
methane detectors, torque wrenches, additional lights, and
a camera. Hence, if an inspector, in his judgment, needs
a particular piece of equipment to accomplish his statutory
mission, the Mine Act implicitly authorizes him to use such
equipment.
Frequently, inspectors feel that taking photographs of the
scene of an alleged violation, irrnninent danger or accident
would be of great assistance in verifying and correcting
the conditons or practices resulting in the violation,
danger, or accident. The use of cameras may also be of
great assistance in subsequently resolving differences of
opinion between the mine operator and the inspectors as to
the conditions present at the time of citation. Such photographs could also be of benefit to both parties by expediting assessment and review proceedings by providing a
pictorial illustration of the s~ene of a violation.
Accordingly, when the use of a camera would be necessary or
helpful in an inspection, the District Manager or Subdistrict Manager may authorize such use during inspections of
metal and nonmetallic mines subject to the following special
restrictions:

553

1.

All non-gassy metal and nonmetallic mines - none.

2.

All gassy metal and nonmetallic mines - tests for
methane will be performed prior to any use of a
camera. If methane is present at levels in
excess of 1%, or if the inspector has reason to
believe methane is present, only photographic
equiment approved for use in gassy mines by
Approval and Certification Center shall be used.

3.

All gilsonite mines - prohibited.

Because questions have arisen in the past regarding the use
of cameras, .I am initially requiring District Manager's or
Subdistrict Manager's approval of the use of cameras in
each instance. I want you and the Subdistrict Managers to
exercise discretion in the approval of the use of cameras.
You should also be sure the inspectors are instructed in the
use of cameras. The inspectors should make a record of the
physical conditions under which the photographs are taken
and the date and time and place.
A refusal to permit the inspector to carry a camera in.to the
mine will be considered a violation of section 103(a) of the
Act and could also be considered an interference or hindrance
of the inspector in carrying out the provisions of the Act.
If there is a refusal of permission to take a camera into
the mine, the inspection should nevertheless be completed
and a record made of any special reasons for taking the
camera into the mine.
The Solicitor's Office has reviewed this memorandtnn and concurs with the position taken.
In view of the policy memorandmn regarding the use of cameras, MSHA
maintains that since it restricts the use of cameras in certain gassy mines
and in all gilsonite mines, the safety problems resulting from their use in
underground mines have been minimized and that unless Climax can demonstrate
that there are important overriding circumstances why MSHA's use of cameras
in specific situations should not be permitted underground, inspectors should
be free to perform their duties using the best investigative tools available.
With respect to the alleged violation of section 103(a) for Climax's
refusal to permit the use of cameras on its mine property, MSHA argues that
section 104(a) authorizes the issuance of a citation or withdrawal order for
violations of the Act as well as any mandatory safety or health standards.
MSHA believes that~e refusal of Climax to allow an inspector to carry a
camera underground during an inspection amounts to hindering and impairment
by an operator of MSHA's ability to carry out its duties specified under

554

section 103 of the Act, and Climax should not be allowed to dictate to an
inspector the type of equipment which he may use underground. The gathering of information to determine compliance with the requirements of the Act
must proceed in an atmosphere free from attempts to intimidate or limit the
ac~ivities of the inspector during the course of his duties, and given the
remedial nature of the Act, an inspector must be allowed broad latitude and
discretion in carrying out his duties, St. Mary's Sewer Pipe Company v.
Director of the United States Bureau of Mines, 262 F.2d 378, 381 (3d. Cir.
1959); Freeman Coal Mining Company v. Interior Board of Mine Operations
Appeals, 504 F.2d 741, 744 (7th Cir. 1974). Should Climax claim that the
use of an individual photograph by MSHA violates a company trade secret or
some other rights, it would be free to challenge the use of that particular
photograph. However, that potential challenge by.Climax should not be persuasive in supporting a general refusal to permit the use of cameras in
underground mines. Thus, anytime an operator prevents an inspector from
carrying out his investigatory functions, he violates the provisions of
section 103 and can be cited accordingly.
Reply Brief Arguments
Contestant
In its reply brief, Climax views the issue in this case to be the narrow question of whether MSHA is statutorily authorized to take photographs
during a warrantless inspection solely for use as evidence in an enforcement hearing. Climax does not view the issue to include whether MSHA may
ever use photographic equipment; nor does it believe that the case calls
for a determination as to whether photographs may be used as evidence in
an enforcement hearing. Climax's position is that the taking of photographs for use in a hearing is explicitly contemplated by the Connnission's
Rules of Procedure, 29 CFR 2700.57, but the photographs must be taken as
part of the judicially-supervised pretrial discovery process. Climax makes
no objection to the gathering of evidence in this specifically-authorized
and well-regulated manner. Climax does, however, object to the gathering
of photographic evidence under the pretense of an inspector's determination whether to issue a citation. This form of extra-judicial discovery
infringes upon Climax's pr~vacy rights and is unauthorized by the Act.
Regarding MSHA's reliance on section 103(a), Climax asserts that this section is not relevant because the conference report demonstrates that it
deals only with recordkeeping requirements, S. Rep. No. 461, 95th Cong.,
1st Sess. 45 (1977).
Climax reiterates its strict construction arguments, and conceding the
fact that substantive provisions of the act should be liberally construed in
order to effectuate the remedial purposes of the Act, it maintains that the
warrantless inspection provision should be strictly construed to avoid conflict with Climax's constitutionally-protected right of privacy, and it
distinguishes the cases of St. Mary's Sewer Pipe Company v. Director of the
United States Bureau of Mines, 262 F.2d 378 (3d. Cir. 1959), and Freeman Coal
Mining Company v. Interior Board of Mine Operations Appeals, 504 F.2d 741

555

(7th Cir. 1974), relied on by MSHA for its liberal construction arguments.
Climax points out that these cases dealt with substantive provisions directly
related to safety precautions that are readily distinguishable from the provisions of the Act in issue in the instant proceedings. Since the inspection
provisions of section 103(a) authorize warrantless entry and impinge directly
on Climax's constitutionally-protected right of privacy, Climax asserts that
the effect of this particular provision, not the Act as a whole, is the key
to the type of construction that should be applied in this case. The extent
to which MSHA may invade Climax's protected privacy rights must be construed
strictly in order to avoid any unnecessary infringement of Climax's privacy
rights. Climax points out that MSHA's policy memorandum was issued after
the citations in these proceedings were issued, and that contrary to MSHA's
arguments, there is no suggestion in these proceedings that MSHA inspectors
were intimidated in any way. Climax officials simply requested that they
not use photographic equipment in what Climax believed to be an unauthorized
manner. Further, Climax asserts that MSHA assumes that the burden is on
Climax to demonstrate "over-riding circumstances" in order to prevent the
use of photographic equipment, and that implicit throughout MAHA's arguments is the assumption that an inspector can enter a mine and do whatever
he pleases, regardless of whether there is specific statutory authorization
for his actions.
Climax believes that the MSHA approach is best illustrated in its
analysis of the statutory foundation of an inspector's right to take photographs. Commenting on MSHA's argument that the use of a camera during an
inspection "is a natural extension of the right of entry," Climax agrees
that the use of cameras to develop evidence for trial extends the right of
entry, but it is ·an extension that is unjustified by the specific language
of section 103(a). In fact, states Climax, MSHA makes no effort to cite
specific statutory language in support of its position; its arguments are
all based on general assertions as to what is helpful or convenient for
MSHA, and the essence of its argument is that inspectors may develop
photographic evidence for trial during the course of a regular inspection
in that it would be helpful to MSHA to have pictures to introduce at' a
hearing, and the regular inspection is the most convenient time to take
the photographs. Even if the above were true, maintains Climax, it would
not mean that MSHA is statutorily authorized to obtain photographic evidence at the time of an inspection. First, the fact that photographs may,
in general, be useful does not mean that photographs are statutorily authorized. The whole point of the fourth amendent is to prevent the Government
from taking actions that would be useful in the Government's enforcement
efforts, but would infringe upon a citizen's protected right of privacy.
In this case, the general usefulness of photographs at trial does not
indicate that they may be taken as part of an inspection, and in fact,
Climax believes the Act authorizes an inspector only to do that which is
necessary in order to determine whether to issue a citation. Photographs
are not required in order to make that determination, and their use may be
distinguished from methane detectors, smoke tubes, and dust sampling devices.
Moreover, even assuming that photographs would be helpful at a hearing, the

556

Act does not authorize the extra-judicial gathering of such evidence in the
course of a warrantless inspection. The inspector's statutorily-prescribed
role is to determine whether a violation exists; photographs do not further
that goal. If the Solicitor desires to obtain photographic evidence for a
hearing, he should follow the explicit Commission procedures that have been
established for that type of pretrial discovery. See 29 CFR 2700.57.
MSHA
Addressing contestant's warrantless search arguments, MSHA cites two
recent U.S. Circuit Court decisions concluding that MSHA's warrantless
inspections and enforcement procedures are reasonable with respect to
gaining access to the nation's mines, Marshall v. Nolichuckey Sand Company,
Inc., 606 F.2d 693 (6th Cir. 1979), and Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 589 (3rd Cir. 1979), cert. denied, No. 79-614
(January 7, 1980). MSHA takes the position that once it has been determined
that a Federal inspector has a lawful right to gain access to a mine without
a warrant, the warrantless search and right of privacy issues become moot.
MSHA asserts that the real issue in this case concerns the investigatory
methods an inspector may use to preserve evidence and document his findings,
after he has gained access to the premises. Since mining has been a heavilyregulated industry for' a number of years, MSHA argues that Congress intended
that MSHA's right to make warrantless searches be interpreted broadly, and
cites the following excerpt from the legislative history:
Safety conditions in the mining industry have been
pervasively regulated by Federal and state law. The Committee intends to grant a broad right-of-entry to the Secretaries or their authorized representatives to make
inspections and investigations of all mines under the
Act without first obtaining a warrant. s. R. No. 95-181,
95th Cong., 1st Session, p. 27
In further support of its arguments, MSHA asserts that its broad rightof-entry not only applies to the actual entry itself, but also to what an
MSHA inspector may do during the course of his inspection. The fact that
he gains access to a mine without a warrant does not in any way limit or
restrict his investigatory duties under the Act, and the use of a camera to
preserve evidence and to document his findings are clearly reasonable and
important parts of his investigatory functions. The actual taking of a
photograph does not enlarge MSHA's original right-of-entry, since an
inspector already has the right to visually observe all conditions in a
mine which a photograph could depict.
In response to Climax's privacy arguments, MSHA points out that inspectors are at the Climax Mine on almost a daily basis, and citing United States
v. Biswell, 406 U.S. 311 (1972), argues that the court there held that owners
of highly-regulated industries have little expectation of privacy since Federal regulation of these industries serves an important Governmental interest.
Since a photograph merely preserves a visual picture of what an inspector has
already observed, MSHA suggests that no privacy rights of Climax are affected.

557

Regarding Climax's characterization of an inspector as an "agent" of
the Solicitor's Office, MSHA states that this is absurd since the same
argument could be made about an inspector who takes good notes or makes
detailed drawings of conditions he observes in a mine. Moreover, the
Solicitor's Office only becomes involved in a small percentage of the total
enforcement actions taken by MSHA. It is clear that photographs can serve
many important functions in assisting MSHA in carrying out the Congressional
mandate, aside from litigation preparation; and photographs are frequently
used in resolving credibility problems and therefore may actually serve to
eliminate the need for litigation in a particular situation. MSHA concludes
that Climax's reliance on a narrow interpretation of MSHA's right-of-access
to its mine should be rejected.
Findings and Conclusions
Warrantless Searches
The authority of Government officials to conduct inspections for law
enforcement purposes is limited by the fourth amendment to the Constitution
which proscribes unreasonable searches and seizures. As a general rule, to
conduct a search, a law enforcement official must first obtain a warrant
based on probable cause, See v. City of Seattle, 387 U.S. 541 (1967). Where
authorized by Congress, however, warrantless searches without probable cause
may be conducted for legitimate regulatory purposes, United States v. Biswell,
406 U.S. 311 (1972). Although the courts in the past have deferred to the
discretion of the legislature in granting administrative investigative
powers, recent decisions indicate that the courts may not be hesitant to
prevent the abuse of these powers or to discharge their role as protectors
of individual rights.
Two cases decided by the Supreme Court in 1967 dealt with the administrative searches by non-federal Government officials, and both found administrative searches sufficiently significant intrusions to require prior
judicial authorization. In Camara v. Municipal Court, 387 U.S. 523 (1967),
a case cited by Climax, a public health inspector sought to make a routine
annual inspection of appellant's premises for possible violations of a local
housing code. Without requiring that a search warrant be obtained, a local
municipal ordinance provided that inspectors should have the right to enter
at reasonable times to permit such inspections, and refusal to permit entry
was subject to a fine and jail sentence. Upon refusal by the appellant to
permit a warrantless inspection of his premises, he was arrested and charged
with a violation of the local ordinance. Noting that even a law-abiding
citizen has a strong interest in preserving the sanctity of his home from
official intrusion, the Court rejected the notion that the fourth amendment
interests at stake in inspection cases are merely "peripheral" and held that
the constitutional guarantee applies with full force to such searches, and
further found administrative searches sufficiently significant to require
prior judicial authorization.

·sss

In See v. Seattle, supra, a municipal ordinance authorized compulsory
warrantless inspections of certain buildings, except the interior of dwellings, as often as necessary to discover violations of the city's fire code.
The Court ruled that there is no justification for relaxing fourth amendment
safeguards simply because the inspection is of commercial premises, since a
businessman's constitutional right to be free from unrestricted official
entries is of no less significance than that of a private resident. The
Court applied the warrant procedure outlined in Camara to commercial inspections, and while noting that each demand for entry should be measured against
a flexible standard for reasonableness, noted that "the decision to enter and
inspect should not be the product of unreviewed discretion of the enforcement
officer in the field."- 387 U.S. at 544-45.
Although Camara and See involved local municipal administrative searches
and may arguably be distinguishable from Federal administrative agencies on
the basis of the subject matter regulated, it would seem that for the most
part, the interests generally advanced for Federal agency searches are no
more compelling than those at issue in the cases concerning local, state,
and municipal agencies. As a matter of fact, as pointed out by Climax in
the cases footnoted at page 7 of its initial brief, the issue of warrantless
searches, insofar as it may affect Climax's constitutionally-protected right
of privacy, is not free of doubt, particularly in the context of the metal
and nonmetal mining industry.
The issue of warrantless searches pursuant to section 103(a) of the
Act was previously raised in two Commission proceedings decided by Judge
Broderick in MSHA v. Waukesha Lime and Stone Company, Inc., VINC 79-66-PM,
June S, 1979, and MSHA v. Halquist Stone Company, VINC 79-118-PM, June 8,
1979. Addressing the general proposition that an administrative agency
does not have the power to rule on constitutional challenges to an organic
statute of an 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. 543 (1958); Spregel, Inc. v. FfC, 540 F.2d 287 (7th Cir. 1976),
Judge Broderick nonetheless ruled that it is the responsibility of an
administrative agency to determine whether a provision of the statute it
administers may constitutionally be applied to the facts found by the
agency, that construction of its organic statute is peculiarly the duty
of the agency, and that a cardinal rule of construction requires that if
possible, a statute be construed to avoid conflict with the Constitution,
NLRB v. Home Center Management Corporation, 473 F.2d 471 (8th Cir. 1973).
Judge Broderick concluded that the mining industry is a pervasivelyregulated industry, and that as such, warrantless nonconsensual inspections are mandated by the Act and do not constitute unreasonable searches
prohibited by the fourth amendment to the Constitution. I agree with his
conclusions.
In disposing of the constitutional challenges on the warrantless search
issues raised in Waukesha Lime and Halquist Stone, Judge Broderick relied on
the requirements of section 103(a) that MSHA inspectors make frequent inspections of mines, and the Senate Committee Report stating that the language

559

"shall have a right of entry to, upon, or through any coal or other mine"
was intended by the Committee "to be an absolute right of entry without need
to obtain a warrant." S. Rep. No. 95-181, 95th Cong., 1st Sess., 14 '(19770_
note 3 at 615. Further, Judge Broderick relied on recent court decisions
holding that warrantless searches of coal mines authorized by the Act do
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).
I believe it is clear from the legislative history of section 103(a)
that Congress intended to confer on the Secretary broad inspection authority
over the mining industry under his jurisdiction for the purpose of insuring
compliance with mandatory health and safety standards. This authority
granted by Congress includes the right-of-entry to a mine without advance
notice and without the necessity of obtaining a warrant. The authority
granted the Secretary under section 103(a) permits mine entry and access by
MSHA to places from which it would normally be otherwise excluded by persons having fourth amendment rights in such places. Further, it seems
clear to me that in order to carry out an effective enforcement program,
Congress deemed it necessary to confer on the Secretary the right-of-entry
for the purpose of ascertaining and insuring compliance with the Act and
the promulgated mandatory health and safety regulations. As the Supreme
Court noted in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978):
[C]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist.
Thus, there is a well-established exception to the search
warrant requirements of the Constitution, Fourth Amendment,
* * * for 'pervasively regulated businesses' * * * and for
'closely regulated' industries 'long subject to close supervision and inspection' * * * Idem, quoting from United
States v. Biswell, 406 U.S. 3TI-;-316 (1972), and Colonnade
Catering Corp. v. United States, 397 U.S. 72, 74 (1970).
In Marshall v. Nolichuckey, supra, the district court observed that
since Congress determined that the mining industry is such a closelyregulated industry, regulation of that industry falls within the BiswellColonnade exception to the fourth amendment's warrant requirements, and
the court cited the legislative history of the 1977 Act which noted that
"[s]afety conditions in the mining industry have been pervasively regulated by Federal and State law." 3 U.S. Code Cong. & Admin. News (1977),
p. 3427. The court also took note of the fact that:
[A]s to the coal mining industry, it has been determined in
this circuit that such industry has a history of close federal regulation under the aegis of the commerce clause,
United States v. Consolidation Coal Co., 560 F.2d 214, 220
(6th Cir. 1977), vacated and remanded (1979)
U.S.
56 L.ed 783, Judgment and opinion reinstated Q;l"i;emand,~~

560

579 F.2d 1011 (1978), Youghiogheny and Ohio Coal Company v.
Morton, 364 F. Supp. 45, 49 (n.c. Ohio 1973).
On appeal and affirmance, the Sixth Circuit in Nolichuckey, observed
as follows at 606 F .2d 693, slip .££·, page 7:
We conclude that the enforcement needs in the mining
industry make a provision for warrantless inspections reasonable. The Act also contains priv-acy guarantees which
are sufficient. As construed by this court, Section 20l(a)
and (b) of the Act permits warrantless inspections only of
the "active workings" of coal mines. A warrant is required
for the inspection of offices and other areas where the
operator has a general expectation of privacy. See United
States v. Consolidation Coal Co., 560 F.2d 214, 217 (6th
Cir. 1977), vacated and remanded, 436 U.S. 942 (1978),
judgment reinstated, 579 F.2d 1011 (1978). The same limitation would apply to sand and gravel "mines." Further, the
statute provides for participation in all inspections by a
representative of the operator. Finally, refusal of an
operator to permit an inspection does not lead to summary
imposition of sanctions. The Act provides for institution
of a civil action by the Secretary of Labor seeking an
injunction or other appropr~ate order.
In Marshall v. Stoudt's Ferry Preparation Companx, supra, the Fourth
Circuit stated as follows at 602 F.2d 593-94:
Mindful of the Supreme Court's reluctance to foreclose
the incremental protection afforded a proprietor's privacy
by a warrant, we are persuaded that the Mine Safety Act's
enforcement scheme justifies warrantless inspections and
its restrictions on search discretion satisfy the reasonableness standard reasserted in Barlow's. Although the Mine
Safety Act's coverage of enterprises has been broadened from
that of the predecessor Coal Mine Safety Act to include other
than coal mining, the statute is still much more limited
than OSHA and is aimed at an industry with an acknowledged
history of serious accidents. Moreover, unlike OSHA, the
Mine Safety Act mandates periodic inspections and is specific in that no advance warning is to be given when the
inspection is to determine whether an imminent danger exists
or whether there is compliance with mandatory health and
safety standards or with any citations, orders, or decisions
outstanding, 30 u.s.c.A. § 813(a).
In another recent Fourth Circuit decision, Marshall v. Charles T. Sink,
d/b/a Sink Coal Companx, No. 77-2614, January 24, 1980, the court affirmed
the district court's decision upholding the warrantless routine inspection
of a mine, and relied on Barlow's, the Colonnade-Biswell exception, Stoudt's

561

Ferry, Nolichuckey, and Youghiogheny. See also, Marshall v. Texoline ComCivil No. CA 4-78-49, Northern District of Texas, March 23, 1979,
where the court upheld the Secretary's warrantless search of a limestone
mine on the basis of Barlow's, Colonnade-Biswell, and Youghiogheny. I take
note of the court's observation in Sink that the Secretary must seek an
injunction when he is refused entry~a mine and that this procedure permits operators to present their objections to a district court before an
inspection takes place to any sanctions that are imposed. This statement
by the court is not altogether accurate since the injunction provision of
30 U.S.C. § 818 is permissive and not mandatory, and refusal of entry may
result in a citation or closure order pursuant to section 104(a).

~'

It seems clear to me from the aforementioned decisions, that the courts
have accepted the strong presumption of the constitutionality of the warrantless inspection provisions of section 103(a), as well as the proposition
that the Barlow's situation regulating business in general is readily distinguishable from the enforcement scheme fashioned by Congress under the
1977 Mine Safety and Health Act which relates to a single mining industry
which has had a history of close Federal regulation and supervision, a fact
specifically recognized by the Supreme Court in Barlow's.
May An MSHA Inspector Use A Camera To Document Conditions Or Practices Which
He Believes Constitutes Violations Of Mandatory Health Or Safety Standards?
In my view, the taking of a photograph by an inspector at the time the
condition or practice which he believes constitutes a violation of a mandatory standard is observed is no different than an inspector taking notes,
making diagrams of the scene, making measurements with a rule or tape, or
otherwise documenting the conditions observed by him with the naked eye.
If a citation results from such an inspection, the inspector's concern
should be to fully document the conditions and to describe them in such a
manner so as to put the mine operator on full and fair notice as to what
is required to achieve abatement so as to timely correct the hazard. If
this is done, the inspector not only achieves compliance with the least
amount of friction, but is also in a position to back up his citation with
credible evidence in the event the citation is challenged. During the initial inspection, if a citation should issue, the inspector does not at that
point in time know that it will be formally challenged through the hearing
proceis, and in this setting, Climax's suggestion that he is acting as an
agent of the Solicitor's Office is somewhat farfetched. The taking of a
photograph merely docwnents the inspector's visual observations, and I
conclude that it is an extension of his inspection and the camera is merely
a tool to aid him in that inspection. In my view, a pocket instamatic or
similar camera carried by the inspector during his inspection rounds, so
long as it is confined to that use while making observations of conditions
or practices which he believes constitute a violation, is no different than
a pad of paper and pencil on which the inspector records notes and other
observations.

562

I believe that the use of cameras by an inspector may, under the circumstances discussed above, serve as a useful tool to resolve credibility
questions surrounding routine violations which may involve judgment calls
on the part of the inspector which are at odds with those of mine management officials who may view the same conditions and come to different conclusions. The use of a camera is particularly useful and critical in
situations involving imminent dangers, accidents resulting from violations,
and situations where the conditionf are likely to change after the occurrence of the event which prompted the citation or order. Further, the use
of a camera cuts both ways; for just as an inspector may use a photograph
to support a violation,. a mine operator is free to use a camera to establish the lack of a violation. As an example, I cite the following three
OSHA cases, recognizing the fact that OSHA has a specific regulation
authorizing the use of cameras by its compliance officers.·
In Beall Construction Company, 1971-1973 CCH OSHD 15,223, the judge
observed that conflicting testimony as to the condition of a ladder on a
construction site could have been easily resolved by a photograph. The
Secretary's failure to submit a photograph resulted in his failure to
prove a violation.
Marino Development Corporation, 1971-1973 CCH OSHD 15,478, concerned
an unshored trench cave-in fatality, and one of the witnesses called by the
Secretary was a police' sergeant who was called to the scene and who took
pictures within minutes after the occurrence of the event. The judge
found the pictures to be of great value in determining the weight and
credibility to be given to the testimony of the witnesses with respect to
the critical issue of the depth and width of the trench as well as other
prevailing conditions.
W. J. Lazynski, Inc., 1971-1973 CCH OSHD 15,184, concerned a case in
which the judge concluded that the Secretary had failed to establish by
his evidence that two nonserious violations had occurred as a result of
the alleged presence of debris in a working area in violation of a mandatory standard. Photographs taken by the respondent, coupled with the
testimony of the company president, convinced the judge that the materials
cited were not "debris," but in fact materials stored and stacked for reuse.
The judge found no violation.
The use of photographs in proceedings before the Department of the
Interior and the Commission pursuant to the 1969 and 1977 statutes has
been an ongoing practice by both MSHA and mine operators, and as far as I
know, no prior objections or questions have been raised as to the right of
an inspector or a mine operator to use a camera to support their respective
positions with respect to the fact of a violation. Of course, the use of
photographs has been limited to questions of their admissibility at the hearing pursuant to the established rules of evidence; see, ~·~·> Mountaineer
Coal Company, 6 IBMA 308 (1976), where the judge attributed no weight to
an operator's photographs of a mine area submitted to establish that
float coal dust did not exist as alleged in the notice of violation on the

563

ground that the photographs distorted the true prevailing conditions.
See also, my decision of July 3, .1979, in MSHA v. Lone Star Industries,
VINC 79-21-PM, July 3, 1979, where photographs taken and submitted by the
mine operator were extremely useful in resolving credibility problems concerning certain alleged unguarded pinch points on a conveyor belt system.
In Lone Star, a number of photographs were taken by the operator to support its conclusions that the locations cited were adequately guarded, and
at the hearing MSHA utilized some of th~ photographs (with the consent of
the mine operator's counsel) to establisn some of the citations, while
others were used as the basis for vacating several citations.
In Climax Molybdenum Company v. MSHA, DENV 78-581-M, an imminent
danger review proceeding decided by Judge Cook on December 28, 1979, MSHA
sought to introduce as evidence at the hearing, photographs of a piece of
equipnent taken by an MSHA inspector after the case was in litigation. Tiie
withdrawal order was issued on August 31, 1978, Climax filed its application
for review on September 28, 1978, and the hearings were conducted between
November 28, 1978, and February 1, 1979, The pictures were taken by the
inspector on December 13, 1978, while at the mine lawfully during the
course of his normal inspection duties.
Climax strenuously objected to the admission of the photographs into
evidence in the proceeding and noted that the issue presented was not
whether the photographs were accurate representations of what the inspector
observed at the tinie they were taken, but rather, Climax framed the issue
as "whether photographs or other evidence obtained after litigation on a
citation or order is begun can properly be admitted when those photographs
are not obtained in compliance with the Discovery Rules" (Cook decision,
p. 8). Quoting from Climax's brief, its argument as posed to Judge Cook,
was as follows:
Climax has no right of access to either interview
inspectors or obtain copies of inspector's notes outside of
the context of the Discovery Rule. MSHA must be required
to follow those rules also and the only suitable means for
requiring that is to exclude from evidence all documents,
photographs, or similar materials which are obtained outside the bounds of the Commission's Discovery rules. Tiiis
is not to say that MSHA inspectors should be prohibited
from returning from the scene of alleged violations after
a citation has been issued is [sic] a part of determining
whether abatement has been accomplished. It is to say however that if that matter is in litigation that any photographs or statements taken by an inspector after the application for review has been filed or any documents which are
obtained by inspector requests after litigation has been
initiated should not be admitted into evidence unless those
documents are obtained through the Discovery processes provided for in the Rules. To rule otherwise would establish
an unfair and arbitrary scheme which cannot be sustained,

564

particularly in view of the presence of the Discovery Rules.
Climax is obligated to comply with the Commission's Rules
and MSHA must comply with them as well. It would clearly
be inappropriate to give MSHA this unfair advantage in
administrative litigation.
No effort was made to comply with the Discovery Rules
in taking the photographs. Because litigation was pending
and those rules were not complied with, and further because
in addition Climax was given no opportunity to have either
a knowledgeable electrician or its attorneys involved in
the taking of the photographs, Exhibits M-14 [sic] through
M-17 inclusive should not be admitted into evidence.
MSHA's arguments concerning the admissibility of the photographs were
that (1) there was no showing that Climax was in any way prejudiced by the
introduction of the photographs, which were offered solely as an aid to the
court in perceiving the work area of the mine involved; (2) the taking of
photographs did not involve an attempt to question Climax's agents without
the presence of counsel; and (3) at the time the photographs were taken,
MSHA personnel were present in the mine lawfully during the course of
their normal inspection duties.
In overruling Climax's objections and admitting the photographs, Judge
Cook cited McCormick, Handbook of the Law of Evidence, section 214 at 53031 (2nd ed., E. Cleary, 1972), which discussed the use of photographic evidence in judicial proceedings as follows:
The principle upon which photographs are most commonly
admitted into evidence is the same as that underlying the
admission of illustrative drawings, maps, and diagrams.
Under this theory, a photograph is viewed merely as a
graphic portrayal of oral testimony, and becomes admissible
only when a witness has testified that it is a correct and
accurate representation of relevant facts personally observed
by the witness. Accordingly, under this theory, the witness
who lays the foundation need not be the photographer nor need
he know anything of the time, conditions, or mechanisms of
the taking. Instead he need only know about the facts represented or the scene or objects photographed, and once this
knowledge is shown he can say whether the photograph correctly and accurately portrays these facts. Once the
photograph is thus verified it is admissible as a graphic
portrayal of the verifying witness' testimony into which it
is incorporated by reference. [Footnotes omitted.]
Relying on the aforesaid passage from McCormick, Judge Cook concluded
that a· photograph serves merely as a graphic portrayal of a witness' oral
testimony, into which the photograph is incorporated by reference, and that
unlike evidence submitted under an exception to the hearsay rule, a photograph is not introduced ordinarily as independent proof of the truth of

565

the matters asserted therein. Noting that the photographs were offered as
graphic aids in interpreting what the MSHA inspectors observed at the time
the order issued, Judge Cook reasoned that to the extent that they set forth
an accurate graphic portrayal of the conditions obs.erved by the witnesses at
the time of the event in question, they were relevant to the subject matter
of the hearing within the meaning of Commission Interim Rule 29 CFR 2700.50,
which was then in effect and which provided that "[a]ny relevant evidence
may be received at the discretion of the Judge. The Judge may exclude evidence which he finds to be unreliable or unduly repetitious." Judge Cook
also took note of the fact that the record did not support the conclusion
that the inspector who took the photographs attempted to interrogate Climax's
agents, and that since the photographs merely related back to conditions
already observed at the time the order issued, he concluded further that
the taking of the photographs did not amount to an interrogation of Climax's
agents.
Commenting on MSHA's failure to
comply with Commission Rule 29 CFR
2700 .46, which provided in part, "For good cause shown, the Judge may order
a party to produce and permit inspection, copying or photographing of designated documents or objects relevant to the proceeding," Judge Cook nonetheless observed that:
[W]e are now faced with an accomplished fact and a consideration of whether evidence which would be helpful to the
ultimate determination of the case should now be received in
evidence. It could be argued that MSHA's request for admission of the pictures in evidence is in effect a motion for
ratification of the act of obtaining discovery by photographing of objects.
He concluded that Climax had not been prejudiced by the admission of the
photographs and that they were helpful in understanding the issues presented
in the case (Cook Decision, pp. 10-11).
Climax requests that I take official notice of the recor.d adduced in
the case before Judge Cook (Initial Brief, p. 11), and it seems obvious
that it wishes me to take official notice of the fact that the photographs
in that case were taken in the midst of litigation while the hearings were
in recess. I have noted this fact, and I conclude that there is a distinction in a situation where an inspector takes pictures after the fact and
while the case is in litigation without notice to the operator, and the
facts presented in the instant proceedings where Climax apparently seeks to
deny MSHA the right to take pictures at any time. In Judge Cook's situation,
I may have sustained Climax's objections to the introduction of photographs
taken after the citation was issued and while the case was in a litigation
and hearing posture without notice to Climax's attorneys. In other words,
although Climax may arguably be correct in its conclusion that photographs
taken after litigation is begun is in the nature of discovery and may only
be introduced in compliance with the Commission's discovery rules, the question of whether photographs in general are permissible at all is, in my

566

view, a question of first impression to be decided by me on the basis of the
record presented in the instant proceedings.
In a series of OSHA cases involving alleged violations of fourth amendment rights for failure by OSHA's compliance officers to properly identify
themselves by displaying their credential~ or affording the respondent the
opportunity to accompany the inspector on his inspection rounds, both of
which were statutory requirements, both the Commission and the courts, on
the facts presented, viewed these requirements as procedural defects which
did not prejudice the respondents or otherwise violate their fourth amendment rights. See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975);
Hoffman Construction Company v. OSHRC, 546 F.3d 281 (9th Cir. 1976).
In United States v. Minton, 488 F.2d 37 (4th Cir. 1973), the court
affirmed the conviction of a defendant for violation of certain liquor laws
which was based on evidence seized as a result of observations of illegal
activities through binoculars and the subsequent seizure of evidence without the benefit of a search warrant resulting from those observations. The
court there ruled that the illegal activity was in "plain view," and that
in these circtn11stances there was no reason for expectation or privacy and
no requirement for a search warrant.
In Environmental Utilities Corporation, 1977-1978 OSHD 21,709, April 4,
1977, an OSHA inspector entered the premises for the purposes of an inspection, and after observing certain conditions which he believed were violations of safety regulations, returned to his car to get a camera. Upon his
return, he photographed the alleged violative conditions and testified that
photographs were required because there was an innnediate possibility that
working conditions would change. The photographs were taken at a time when
a company representative was not present, and the Commission rejected the
company's fourth amendment arguments that the inspector had not identified
himself as an inspector and did not afford the company an opportunity to be
present when the photographs were taken. The Commission noted that the
nature of the work practices in effect at the time the violation was cited
supported the inspector's belief that immediate action was necessary to
preserve evidence.
Minotte Contracting & Erection Corporation, 1978 OSHD 22,551,
February 7, 1978, concerned a case where an OSHA inspector took photographs of certain conditions which he believed were violations from a
public roadway prior to presenting his credentials to the company upon
his arrival on the premises. The citations based on these photographs
were affirmed by the Commission, and it rejected the company's fourth
amendment argtn11ents seeking t9 exclude the photographs and it did so on
the ground that the conditions were in "plain view," that the company was
not prejudiced, and that in the circtn11stances, the company could not claim
a reasonable expectation of privacy protected by the fourth amendment
particularly where the worksite was open to public view.

567

In Laclede Gas Company, 1979 OSHD 24,007, October 31, 1979, the Connnissioni rejected a company's assertion that photographs taken by an OSHA compliance officer by means of a telephoto lens camera from a highway prior to
his arrival on the premises and displaying his credentials should be excluded
as evidence of any violations, and it did so on the basis of the ''plain
view'' doctrine, and its prior decisions in Environmental Utilities Corporation and Minotte Contracting, supra.
Although I recognize the fact that in these OSHA cases the Commission's
application of the "plain view'' doctrine involved situations where the worksite and the resulting violations were in effect in the public domain, I
see little distinction in a situation where an MSHA inspector has a statutory right of access to mine property without the necessity of a warrant
and while there in the course of his authorized inspection duties observes
conditions which he believes violate the law. Although an underground mine
area is not necessarily in the public domain, the fact is that the conditions
observed by an inspector are in his plain view, and in these circumstances,
I conclude that an operator may not at that point in time reasonably claim
any right of privacy insofar as the docl.IIIlentation of those conditions are
concerned. Just as the inspector is free to take notes, measurements, and
make sketches and diagrams of the scene, I believe he is also free to record
the conditions observed by means of a camera. Any subsequent use to be made
of those photographs is a matter which I believe should be left to the adjudicatory discretion of the judge on a case-by-case basis. Since Congress
and the courts have recognized the fact that the mining industry is a
pervasively-regulated industry, I am not convinced that the use of cameras
to assist the Secretary in his regulation of that industry is a practice
which should generally be proscribed by the fourth amendment or the Act.
There is one area of contention in these proceedings which I believe
the Secretary should take serious note of and take some corrective action.
This concerns Climax's argument that the Secretary has engaged in no formal
rulemaking to fix the circumstances and guidelines under which cameras are
to be used. As pointed out by Climax, OSHA has a specific regulation authorizing the use of cameras and has also published detailed instructions to
its compliance officers with respect to the circumstances under which they
are to be used. Climax's argtnnents that the lack of specific guidelines
gives rise to possible abuses and unwarranted intrusions into its mining
business and operations are well taken. While I do not believe that its
arguments may serve as a basis for interdicting the general use of cameras
during an inspection, I believe that reasonable ground rules should be
established by the Secretary and communicated to the industry in order to
preclude potential abuses and to ensure even-handed enforcement. The practice of some MSHA districts using cameras, while others do not, and the
practice of using them to regulate one class of mining.operations as opposed
to another, may in certain ci<cumstances result in arbitrary and confused
enforcement practices which I believe should not be permitted. For example,
MSHA's reliance on its April 30, 1979, memorandum to support its contention
that cameras are authorized and used throughout its inspector force is somewhat suspect because that memorandum is addressed only to metal and nonmetal

568

district managers, and not to coal districts, and its effective date is
after the refusal incident which prompted the instant proceedings. If distinctions are to be made, MSHA should address this question head on and
communicate this to the industry as a whole. Care should also be taken
that in this process, MSHA does not put itself in the position of having
its inspectors act as trial lawyers. Further, it should be readily apparent
to MSHA that reasonable precautions should be taken to insure that hazardous
conditions will not be created by flash or spark-producing camera equipment.
Inspectors should be adequately trained in the use of camera equipment, and
they should insure that the taking of pictures are not done in such a manner
as to distract the workforce while they are engaged in their mining duties.
Such distractions may expose a miner to hazards and potential injuries which
he otherwise would not have been exposed to but for the presence of an
inspector armed with camera equipment.
After careful consideration of all of the arguments presented, I conclude that Climax's suggestions that the taking of photographs is~~
prohibited must be rejected. Of course, if an operator can establish that
the inspector abused his authority by taking photographs unrelated to a
citation, that the taking of a photograph posed a mine safety or health
hazard in a given situation, or that the taking of photographs unduly
interferes with or disrupts the mining process, he can raise this with the
judge on a case-by-case basis, and seek remedial action for such enforcement
practices. In the instant proceedings, Climax does not assert that this is
the case. Rather, it seeks a general exclusion of the use of cameras by
MSHA's inspectors during the course of their mine inspection.
I recognize the fact that Climax has a legitimate right to protect the
confidentiality of its mining processes as well as any unwarranted disclosure of any trade secrets which may result from an entry by an inspector to
its mine property and the subsequent taking of pictures which may end up as
part of a public record in any subsequent adversary litigation. However,
the possibility of this happening may not, in my view, serve as a general
prohibition of the use of cameras or the taking of pictures by an inspector
during the course of an authorized inspection of the mine for the purpose
of insuring compliance with mandatory health and safety standards.
In my view, the use of cameras should be limited to the specific condition or practice which the inspector believes is a violation. If the taking of the photograph exposes the operator to a possible disclosure of trade
secrets and mine procedures which he believes should be protected from public disclosure, he is free to seek an appropriate protective order or to
request an "in-camera" limitation on the use of such photographs. This was
precisely the method used in several OSHA-reported cases which held that the
appropriate method for protecting such secrets was the use of protective
orders. See: American Can Company, November 30, 1979, 7 Occupational Safety
and Health Reporter, 1947, noted in 48 L.W. 2431, January 1, 1980; OwensIllinois, Inc., 1978 OSHD 23,218.

569

May An MSHA Inspector Use A Camera And Take Photographs After Litigation
Is Begun Solely For The Purpose Of Use At A hearing Without Prior Discovery Notice ·civen To the Operator?
In its reply brief, Climax seemingly concedes that MSHA is not forever
precluded from using photographic equipment or from introducing photographs
as evidence in a hearing. Climax views the "sole issue" to be whether MSHA
is statutorily authorized to take photographs during a warrantless inspection solely for use as evidence in an enforcement hearing, and in support
of this argument takes the position that the taking and use of photographs
for hearing purposes must be governed by the Connnission's discovery rules,
29 CFR 2700.57, and must be authorized and regulated by the presiding judge.
Climax's argument seems to be that photographs taken by an inspector during
his initial inspection, and which are limited to documenting the conditions
he observes is permissible, but if the photographs are to be taken after
litigation begins, their taking and use must be specifically authorized and
regulated by the judge pursuant to the normal discovery rules.
As indicated earlier, I have concluded that the use of cameras and
photographs taken at the time the inspector initially observes conditions and
practices which he believes constitute violations of the Act or any mandatory
safety standards is within the authority granted an inspector under the rightof-entry provisons of section 103(a) of the Act, and it matters not that the
photographs will at some future time be used by the Solicitor to establish a
contested violation at the hearing. However, on the facts presented in these
proceedings before me, there is no indication that the inspectors attempted
to take photographs after the start of litigation and solely for use at the
hearing as was the situation in the prior Climax case before Judge Cook. As
a matter of fact, the stipulation entered into and filed by the parties in
the instant proceedings on October 17, 1979, is limited to the question of
whether MSHA inspectors may use cameras and take photographs during the
course of regular mine inspections, and the stipulated facts reflect that
MSHA inspectors were refused the right to bring their instamatic cameras
with them onto mine property when they ap;,P 1.·,~J f,-,.. l·<\~nlar inspections.
The citation and order at issue in these proceedings resulted from Climax's
refusal to permit the inspector to use a camera in the mine to document any
violations which may result from his routine inspection.
Climax's counsel has attempted to expand the factual situation in these
proceedings to those which were presented in the case before Judge Cook by
expanding his legal arguments in the brief and reply brief to the question
of whether photographs taken solely for the purpose of use at an adversary
hearing are permissible. The problem with this approach is that there are
no facts· present in these proceedings which lead me to conclude that the
inspectors attempted to use cameras solely for litigation purposes when they
appeared at the mine on April 18, 1979, for the purpose of conducting a
regular mine inspection. The fact that I have taken note of the prior
litigation before Judge Cook cannot serve as the basis for my deciding an
issue which was before him and not before me. It seems to me that Climax
should have preserved its appeal rights by filing an appeal of Judge Cook's

570

decision addressing the very issue which Climax is attempting to address
here by means of legal arguments based on proposed stipulated facts which
·are not before me. Under the circumstances, my findings and conclusions in
these proceedings are limited to the question of whether MSHA inspectors
may generally use cameras and take photographs of conditions and practices
alleged to be violations at the time of their •initial inspections. I have
answered this question in the affirmative, but I make no findings or conclusions as to whether the use of cameras or the taking of photographs after
litigation is begun solely for the purpose of use at a hearing without
notice or without resort to the appropriate discovery rules of the Commission is permissible under the Act, and I have declined to do so because
those facts are not before me.
May A Mine Operator Be Cited Under Section 103(a) Of The Act For Refusal To
Permit MSHA Inspectors To Take Photographs Of Mine Conditions Which They
Believe Constitute Violations?
In view of my finding and conclusion that the use of cameras by MSHA
inspectors is not an invasion of privacy prohibited by the fourth amendment
but merely an extension of the inspection specifically authorized by section 103(a), without the need for a warrant, I conclude that Climax's
refusal to permit the use of cameras, while not directly a refusal of the
right-of-entry, does constitute a violation of that section for which a
civil penalty may be assessed. The amount of such a penalty must, however,
be determined on the facts of each case, and my findings and conclusions on
this issue follow.
As indicated earlier in this decision, the civil penalty proceeding has
been consolidated with the contest filed by Climax. MSHA takes the position
that the refusal of Climax to permit the use of cameras constitutes a violation of section 103(a), and that pursuant to section 104(a), which mandates
a civil penalty for violations of the Act, Climax may be assessed a civil
penalty for a violation of section 103(a). In support of its argument, MSHA
asserts that the refusal by Climax to permit the use of cameras amounts to
hindering and impairing MSHA's ability to carry out its inspection duties
under section 103(a). MSHA equates this refusal by Climax to allow the
taking of photographs to intimidation of the inspector. Climax takes the
position that there is no evidence of intimidation or harrassment of the
inspector, and the record is devoid of any facts to suggest that this
occurred in this case. I agree. There is no evidence of record to support the conclusion that that inspector was refused entry or was otherwise
prohibited from conducting his normal inspection. The inspector was simply
advised that he could not use a camera, and there is nothiug to suggest that
he was otherwise limited in the manner in.which he conducted his inspection
on the day in question.
MSHA's initial proposed civil penalty was for $500. The Assessment
Office "worksheet" which is part of MSHA' s pleadings, simply reflects a proposed penalty of $500, and no assessment "points" were assigned for any of
the six statutory criteria set forth in section llO(i), of the Act. Since

571

it is well settled that any civil penalty assessment levied by me is de novo,
without regard to. any assessment formula utilized by MSHA in its initial-evaluation of the penalty, I will assess a penalty based on the facts of
record.
The parties filed supplemental briefs addressing the question of an
appropriate civil penalty for Climax's refusal to permit the use of cameras.
MSHA takes the position that Climax's refusal to permit the use of cameras
hindered its ability to carry out its duties under the Act and that the
violation was serious. MSHA also believes that since the violation resulted
from Climax's intentional conduct to test -the extent of MSHA's inspection
authority, Climax was negligent, and since an order resulted from Climax's
refusal to abate the citation, MSHA concludes that no finding of good faith
is warranted. MSHA also cites Climax's moderate history of prior violations
and now seeks a civil penalty assessment of $150.
Climax concedes that it is a large mine operator and that MSHA's proposed penalty will have no effect on its ability to continue in business.
However, Climax argues that its refusal to permit the use of cameras was
based solely on its desire to administratively challenge MSHA's use of
photographic equipment, and that it in no way harrassed, intimidated or
otherwise disturbed the inspectors. In fact, Climax asserts that it
cooperated with the inspectors with respect to the remainder of the
inspection and made known to the inspectors the purpose of its objection
to the use of photographic equipment. In these circumstances, Climax
argues that it should not be penalized for exercising its right administratively to challenge the validity of an MSHA procedure by the imposition
of a severe civil penalty. Further, since the application of the six statutory criteria of section llO(i) are specifically designed for the purpose
of deterrence, and since operators should not be deterred from bringing
genuine test cases, Climax asserts that the statutory criteria should be
disregarded in favor of the imposition of a nominal or token penalty of no
greater than $10.
After careful review of the arguments presented, including the record
here presented, I conclude that Climax has the better part of the argument
and I agree with its position with respect to the assessment of a civil
penalty on the basis of the facts presented in these proceedings. I cannot
conclude that Climax intimidated or otherwise harrassed the inspectors in
this case. To the contrary, I conclude that Climax's refusal to permit the
use of cameras on its mine property was based on what it honestly believed
to be a constitutionally-protected right of privacy and its desire to challenge MSHA's assertions to the contrary. As correctly pointed out by Climax
in its arguments, it must first exhaust its administrative remedies before
seeking court review of its asserted right to be left alone, and the initial
step in this administrative review process is to provoke the issuance of a
citation. Absent any credible evidence that Climax harrassed the inspector
or otherwise impeded him in the conduct of his inspection, I cannot conclude that the refusal to permit him to use a c·amera constituted a refusal
of entry~~ warranting a substantial civil penalty assessment. Since

572

this case is a case of first impression, and considering the prior proceeding before Judge Cook, I am convinced that Climax's refusal to permit the
use of a camera was based on its desire to provoke a "t.est case," rather
than to deliberately obstruct the right of the inspector to go about his
normal inspection duties. This is not the first enforcement proceeding
involving Climax Molybdenum Company, and to my knowledge, it has never
refused an MSHA inspector the right-of-entry on its mine property for the
purpose of conducting an inspection.
MSHA's argument regarding the severity of the violation, including its
arguments and conclusions that the refusal to permit the use of cameras is
~~ harrassment and intimidation of its inspectors, are rejected.
While
the refusal by an operator to permit an inspector.to take with him equipment
directly related to safety may be considered serious, on the facts in this
case, I cannot categorically characterize a camera as a safety-oriented
piece of equipment. For example, while a methanometer, anemometer, and
noise-measuring devices directly measure compliance or noncompliance with a
specific mandatory safety standard, the use of a camera during the inspectioin is in the final analysis an additional tool to aid the inspector in
pictorially preserving conditions he observes. Those conditions may or may
not amount to a violation, and in this context, the value of a camera is in
the credibility it lends to any testimony by the inspector in a contested
case.
Climax concedes that the citation resulted from its intentional conduct
to test MSHA's authority to use cameras during an inspection. While this
may amount to negligence in the ordinary sense, given the factual setting
which provoked the citation in the first place, I cannot conclude that an
increase in any civil penalty is warranted because of the negligence factor.
I take note of the fact that in this case, once the citation was issued
and an abatement time fixed, the inspector issued a withdrawal order based
on Climax's continued objections to the use of a camera and he specifically
noted on the face of the order that no area of the mine should be closed.
Under the circumstances, I fail to understand the rationale in issuing an
order. The order did nothing to achieve compliance. It simply documented
Climax's continued refusal to permit the use of cameras after being put on
notiuce that the inspector believed he had a right to use a camera. In my
view, the use of an order ·in these circumstances was inappropriate. However, since it did not close down mining operations, I can find no prejudice
to Climax and I consider the order as simply a further documentation and
indication of Climax's continued refusal to permit the use of cameras and
do not believe that its mere issuance should serve as a basis for increasing
any civil penalty assessment resulting from the violation. On the basis of
the entire record here presented, I find that a civil penalty of $10 is
appropriate.
Conclusion and Order
In view of the foregoing findings and conclusions, the citation and
order issued in these proceedings are AFFIRMED, and Climax is assessed a

573

civil penalty in the amount of $10 for its refusal to perm.it the use of a
camera in its underground mine by an MSHA inspector during the course of
an inspection, and Climax is ordered to pay that amount within thirty
(30) days of the date of these decisions.

CY!
/?. // -r-...7
/'fL~J-£--- /t 1 c~c,v~
f.:'G~rge_;;tA. Koutras
Administrative Law Judge
Distribution:
W. Michael Hackett, Esquire, Climax Molybdentnn Company, 13949 West
Colfax Avenue, Golden, CO 80401 (Certified Mail)
Todd D. Peterson, Esquire, Crowell & Moring, 1100 Connecticut Avenue,
NW., Washington, DC 20036 (Certified Mail)
Robert A. Cohen, Attorney, Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
James H. Barkley, Attorney, Office of the Regional Solicitor, U.S.
Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
David A. Jones, Jr., President, Oil, Chemical & Atomic Workers International Union, Local No. 2-24410, P.O. Box 949, Leadville, CO
80641
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO 81645
(Certified Mail)

574

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

FEB 2 6 1980
LOCAL UNION #6594, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA, on
behalf of: Willard Newsome,
Kyle Cline, Keith McCoy,
Charles R. Stover, Walter Cooper,
Orville Napier, Jack Matney,
Robert Fields, Isaac Bryant,
Frank Evans, Alvin Chapman,
Bruce Cooley, Gregory Boggs,
Andrew Miller, Phillip Springer,
Bobby Robinson, Earl Hall,
Tennis Canterbury, George Tiller,
Larry Lester, William Workman,
Kirby Cisco, Mearl Fields,
Philip Jones, Danny Mahon,
Kenneth Whited and Taby Cooley
Applicants

Application for Compensation
Docket No. HOPE 77-128
No. 1 Mine

v.
FMV COAL CORPORATION,
Respondent
DECISION
Appearances:

Peter Mitchell, Esq., United Mine Workers of America,
Washington, D.C., for the Applicant.

Before:

Judge Cook

I.

Procedural Background

On January 24, 1977, Local Union #6594, District 17, United Mine Workers
of America (Applicant) filed an application for compensation in the abovecaptioned proceeding pursuant to section llO(a) of the Federal Coal Mine
Health and Safety Act of 1969, 30 u.s.c. § 801 ~~· (1970) (1969 Coal
Act). The application was filed with the Office of Hearings and Appeals of
the United States Department of the Interior and the proceeding was pending
on the effective date of the Federal Mine Safety and Health Act of 1977,
30 U.s.c. § 801 ~ ~· (1978) (1977 Mine Act). Accordingly, the case is
before the undersigned Administrative Law Judge of the Federal Mine Safety
and Health Review Commission for decision. 30 u.s.c. § 961 (1978). The
remainder of the procedural history subsequent to the filing of the application for compensation is set forth below.

575

On February 18, 1977, the Applicant filed a photocopy of a post office
return receipt indicating that service of the application for compensation
had been made upon FMV Coal Corporation (Respondent). Additionally, on the
same day, the Applicant filed a motion to permit late filing of interrogatories to the Respondent in conjunction with copies of the proposed interrogatories. This motion was granted by an order dated March 3, 1977.
On March 9, 1977, the Applicant moved for an order to show cause why
judgment in default should not be entered. On March 11, 1977, the Respondent
filed a motion to file a late answer but failed to submit an answer in conjunct ion with the motion. The Applicant filed a statement in opposition to
the Respondent's motion on March 21, 1977. Additionally, on March 21, 1977,
the Respondent filed a letter in response to the Applicant's March 9, 1977
motion stating its opposition to the entry of a default judgment.
On March 25, 1977, a notice of hearing was issued setting the matter for
hearing on April 21, 1977, in addition to an order granting the Respondent's
motion to file a late answer and denying the Applicant's motion for an order
to show cause why judgment in default should not be entered. The Respondent
was accorded 10 days in which to file its answer. The answer was subsequently filed on April 4, 1977.
Pursuant to a mutual agreement by counsel for the parties, an order was
issued on April 15, 1977, cancelling the hearing scheduled for April 21,
1977. The order noted that a telephone conference would be conducted on
May 9, 1977, to determine whether a hearing would be necessary and, if so,
to agree upon the date thereof.
The May 9, 1977, telephone conference was conducted as scheduled. It
was agreed that the Respondent would mail answers to the Applicant's interrogatories by May 13, 1977. It was also agreed that a telephone conference
would be held on June 20, 1977, absent a request by the parties for an
alternate date. This agreement was reflected in an order dated May 9, 1977.
The answers to interrogatories were filed on May 16, 1977.
The June 20, 1977, telephone conference was conducted as scheduled
during which counsel for the Applicant stated that he contemplated the filing
of further interrogatories and a request for admissions. Counsel for the
Applicant further stated that he would consider the filing of a motion for
summary decision depending upon the response received to the interrogatories
and request for admissions. Counsel for the parties agreed to participate in
a telephone conference on July 15, 1977, to determine both the status of the
case and whether a hearing would be necessary. These matters were reflected
in an order dated June 20, 1977.
The Applicant's requests for admissions were filed on July 1, 1977, and
the Respondent's reply was filed on July 15, 1977.
The July 15, 1977, telephone conference was held as scheduled. Counsel
for the Applicant indicated that he was considering the filing of a motion

576

for summary decision. Accordingly, counsel for the parties were informed
that no further telephone conferences would be held absent a specific request
from either party, and that no further action would be taken by the undersigned Administrative Law Judge until either the receipt of such a request
or the filing of a motion for summary decision or the filing of a request for
a hearing.
Approximately 6 months elapsed during which no communications were
received from the parties as to the status of the case. On January 17, 1978
and February 6, 1978, the undersigned Administrative Law Judge sent letters
to counsel for the Applicant, with copies sent to the Respondent, requesting
a written statement as to what further action the Applicant contemplated taking so that the disposition of the case could be expedited. On February 24,
1978, a communication was received from counsel for the Applicant stating
both his reasons for the delay and that he would be filing a motion for
summary decision. This motion was subsequently filed on April 14, 1978. On
May 15, 1978, the motion was denied without prejudice to the right of the
Applicant to renew a motion which would be properly documented.
On August 11, 1978, a letter was sent to counsel for the Applicant
stating the necessity of taking action, either in the form of a motion for
summary decision or a request for a hearing, in order to expeditiously bring
the case to a conclusion. On September 1, 1978, counsel for the Applicant
filed a letter which apprised the Judge that consultations with counsel for
the Respondent had disclosed matters that could only be resolved at a hearing. Accordingly, a notice of hearing was issued on September 7, 1978,
scheduling the case for hearing on the merits on November 21, 1978, in
Charleston, West Virginia, contingent upon the Applicant's filing an amended
application for compensation by October 16, 1978.
On October 17, 1978, the Applicant filed a motion for production of
documents. On October 31, 1978, the Applicant filed a communication indicating that he was pursuing informal avenues to obtain the information sought
by the motion for production of documents and suggested that a ruling on the
motion be held in abeyance. Counsel further indicated that he would either
withdraw or renew the motion upon completion of the informal steps previously
undertaken. Additionally, counsel indicated that a postponement of the hearing would be needed by both parties.
On November 6, 1978, an order was issued continuing the hearing indefinitely and scheduling a telephone conference for November 22, 1978, which
conference was he1d as scheduled. It was agreed that the following three
steps would take place: First, the Applicant's attorney was to file an
amended application for compensation after receiving certain information
from the Respondent's attorney and from other sources. Second, the Respondent's attorney was to be accorded time to file an answer to the amended
application. The attorney for the Respondent was to communicate with the
attorney for the Applicant within 2 weeks after receipt of the amended
application to indicate whether he would stipulate that the Applicant could
file a second motion for summary decision in spite of the fact that a notice

577

of hearing had already been issued. Third, the Applicant's attorney was to
either file a motion for summary decision or request the Judge to set the
matter for hearing. This agreement was reflected in an order issued on
November 28, 1978.
A telephone conference was held on or around April 30, 1979, to determine the status of the case since no communication had been received from
either party subsequent to the issuance of the November 28, 1978, order. The
parties agreed to make arrangements for the receipt of certain information so
that the Applicant's attorney could file an amended application by May 21,
1979. It was understood that the remaining two steps outlined in the
November 28, 1978, order then would be executed as expeditiously as possible.
On May 11, 1979, the Applicant served interrogatories and a request
for admissions on the Respondent. Copies were filed with the Judge on
May 14, 1979.
As of June 25, 1979, 7 weeks following the above-noted telephone conference, the amended application had not been filed. Therefore, counsel for
the Applicant was requested to apprise the Judge of the status of the
amended application by July 5, 1979.
On July 6, 1979, the Applicant filed a document styled "Amended
Application for Compensation .and to Show Cause Why Default Judgment Should
Not Be Entered." On August 13, 1979, an order was issued addressing issues
relating to the Applicant's May 14, 1979, and July 6, 1979, filings and
setting forth a schedule stating, in part, as follows:
On May 14, 1979, the Applicant filed copies of interrogatories to Respondent and a request for admissions along
with a certificate of service stating that copies of such
documents had been mailed on May 11, 1979, to the SecretaryTreasurer of the FMV Coal Corporation as well as the Office
of the Solicitor of the Department of Labor. However, the
certificate of service did not show that it was mailed to
the Respondent's attorney.
On July 6, 1979, the Applicants filed an amended Application for Compensation and a request that an order be issued
to the Respondent to show cause why judgement in default
should not be entered in Local Union 6594's favor, on the
application as amended, since the Respondent had not replied
to either the interrogatories or the requests for admissions.
The certificate of service attached to such document states
that copies were mailed to the attorney for the Respondent as
well as other persons. No response to such amended application or request for order to show cause has been received
from the Respondent and the time permitted for response to
such motions has expired. In addition, it has now been

578

somewhat over 30 days since the amended Application for
Compensation was served and no answer to that amendment has
been filed by the Respondent.
In view of the regulations relating to discovery, it is
not considered that an order to show cause for default
judgment is proper at this stage of the proceedings. However, in view of the facts contained in the record, it is
considered good cause has been shown for the completion of
discovery procedures beyond the time limitations set forth
in the regulations applicable to these proceedings.
Accordingly, IT IS ORDERED that the Respondent reply to
such interrogatories and requests for admissions referred to
above by August 31, 1979. 1/ As relates to the amendment to
the application, such amendment is accepted as partial fulfillment of the directions contained in my order of May 15,
1978, which pointed out that the applicable regulations
required the application to set forth the total amount of
compensation claimed as well as the period for which such
compensation is claimed. However, the period of the claim
as set forth in paragraph 4 of the amended application filed
July 6, 1979, is not sufficiently definite. Therefore, after
the interrogatories have been answered, a further amendment
to such application will be necessary to definitely set forth
the specific days for which compensation is claimed.
Accordingly, the Applicant will have until September 20,
1979, for the filing of such amendment to the application.
Thereafter the Respondent will have until October 20,
1979, to answer the application as amended.
Thereafter the hearing in this matter will commence at
9:30 a.m., October 30, 1979, unless agreement has been
reached by the parties as to the right of the Applicants to
file a motion for summary decision if such is in order at
that time.
Footnote No. 1, supra stated that: "In view of the fact that the
certificate of service relating to such documents did not show service upon
the Respondent's attorney a copy of each of these two documents is attached
as Append ix A."
On October 1, 1979, an order of continuance was issued stating the
following:
The hearing in the above-captioned case is now set for
October 30, 1979. In the order setting such hearing, the
date was premised upon the occurrence of two steps which had

579

to occur prior to the hearing. They were the filing of an
amended application which would specifically set forth the
dates for which compensation is claimed by each of the miners
involved, and thereafter the passage of 30 days after service
of such amended application upon the respondent, during which
the respondent could answer such amended application.
Since the above referred to amendment to such application has not been served or filed, the time schedule will not
permit the commencement of the hearing on October 30, 1979.
In view of the fact that the Respondent did not respond
to the interrogatories and requests for admissions served by
the Applicant, a telephone conference was arranged by the
undersigned Administrative Law Judge with the attorneys for
the Applicant and the Respondent on September 24, 1979.
During such telephone conference the attorney for the
Respondent stated that the Respondent no longer desired that
an attorney represent it because of financial problems. The
result is that the Respondent's attorney apparently will not
be filing answers to said interrogatories and requests for
admissions. During such conference the Administrative Law
Judge stated that the procedures for the subpoena of Respondent 1 s officers for the purpose of a deposition could be
carried out by the Applicant's attorney if such was necessary
for the purpose of serving and filing an amended application.
The attorney for the Applicant stated that some action
would be forthcoming, as to an amended application, in the
near future as to the service of an amended application.
Accordingly the hearing in this case is CONTINUED
INDEFINITELY pending the filing of the amended application
and the passage of 30 days for answer thereto by the
Respondent. ·
As soon as action is taken by the Applicant as to such
amended application, an order will be issued setting the
matter for hearing.
On October 25, 1979, the Applicant filed a document styled "Supplemental
Application for Compensation." The Respondent failed to file answers to
either the July 6, 1979, amended application for compensation or the
October 25, 1979, supplemental application.
An amended notice of hearing was issued on November 8, 1979, scheduling
the case for hearing on the merits on December 18, 1979, i~ Logan,
West Virginia. Subsequent thereto, the Applicant requested that the hearing
be changed to a date in January, 1980. Amended notices of hearing were
issued on November 27, 1979, and January 15, 1980, scheduling the case for

580

hearing on the merits to commence at 10 a.m., January 30, 1980, in Bluefield,
West Virginia. Additionally, on January 15, 1980, a prehearing order was
issued advising the parties that a 5 day transcript would be ordered and that
the time for filing any proposed findings of fact, conclusions of law or
briefs would expire 10 days after each party ordering a copy of the transcript received its copy from the reporter.
The hearing was conducted as scheduled. The Applicant was represented
by counsel. No one appeared to represent the Respondent (Tr. 5-6). lf
During the course of the hearing, the Applicant moved to amend the
caption to reflect the names of all miner-claimants and also moved to amend
the supplemental application for compensation to conform with the proof.
Both motions were granted (Tr. 49, 51-56).
The Applicant also moved for the entry of a default (Tr. 9, 58). However, in view of the decision in Rushton Mining Company v. Morton, 520 F.2d
716 (3rd Cir. 1975), discussed infra, it is deemed inappropriate to dispose
of this case by way of a default.
The Applicant filed proposed findings of fact and conclusions of law on
No posthearing filings were made by the Respondent.

Febr~ary 19, 1980.

Additionally, on February 19, 1980, the Applicant filed proof that on
October 24, 1979, a copy of the October 25, 19789, Supplemental Application
for Compensation was served on both Mr. T. I. Varney, the Respondent's
Secretary-Treasurer, and John M. Richardson, Esq., the Respondent's then
counsel of record.
II.

Witness and Exhibits
(A)

Witness

The Applicant called as its witness Richard C. Cooper, a safety inspector for the United Mine Workers of America.
(B)

Exhibits

The Applicant introduced the following exhibits into evidence:
];/ It should be noted that the Respondent was represented by counsel during
the prehearing stage of the proceeding. On November 9, 1979, counsel for
the Respondent filed a motion for permission to withdraw his appearance. In
spite of repeated requests, no certificate of service was filed prior to the
hearing showing service of the motion on the Applicant. The motion was
granted on the record after counsel for the Applciant acknowledged receipt
of a copy of the motion and after counsel stated that he had no objection to
the granting of the motion (Tr. 6-8).

581

A-1 is the affidavit of Fred T. Casteel, Subdistrict Manager in
the Madison, West Virginia Subdistrict Office of the Mine Safety and Health
Administration.
A-2 is the affidavit of Helen o. Mockabee, Chief of the Docket
Section of the Federal Mine Safety and Health Review Commission.

§

A-3 is a copy of Order No. 1 GRB, December 13, 1976, 30 c.F.R.
75 .1101-5.

§

A-4 is a copy of Order No. 2 GRB, December 13, 1976, 30 C.F.R.
75.1103-4(a).

§

A-5 is a copy of Order No. 3 GRB, December 13, 1976, 30 C.F.R.
75.1100-2(b).

§

75.200.

A-6 is a copy of Order No. 4 GRB, December 13, 1976, 30 C.F.R.
Ill.

Issues

(1) Whether the miner-claimants are entitled to compensation under that
portion of section llO(a) of the 1969 Coal Act which provides as follows:
If a coal mine or area of a coal mine is closed by an
order issued under section 104 of this title for an
unwarrantable failure of the operator to comply with any
health or safety standard, all miners who are idled due to
such order shall be fully compensated, after all interested
parties are given an opportunity for a public hearing on
such compensation and after such order is final, by the
operator for lost time at their regular rates of pay for such
time as the miners are idled by such closing, or for one
week, whichever is the lesser.
(2) If the miner-claimants are entitled to compensation under the
above-noted provision of section llO(a), then what is the amount of compensation due each miner-claimant?
IV.

Opinion and Findings of Fact

On December 13, 1976, George Bowman, an authorized representative of
the Secretary of the Interior, issued to the Respondent the following orders
of withdrawal at the Respondent's No. 1 Mine: 1 GRB, December 13, 1976,
30 C.F.R. § 75.1101-5; 2 GRB, December 13, 1976, 30 C.F.R. § 75.1103-4(a);
3 GRB, December 13, 1976, 30 C.F.R. § 75.1100-2(b); and 4 GRB, December 13,
1976, 30 C.F.R. 75.200. The first three orders were issued at 9:45 a.m. and

582

the remaining order was issued at 10:30 a.m. All four orders were issued
pursuant to section 104(c)(l) of the 1969 Coal Act 2/ alleging violations of
the above-noted mandatory safety standards caused by an unwarrantable failure
on the Respondent's part to comply with the respective standards. (Exhs.
A-1, A-3, A-4, A-5, A-6; Applicant's Requests for Admissions, Nos. 6, 7, 8,
9, 13, 14, 15, 16, filed July 1, 1977, and Respondent's Reply thereto, filed
July 15, 1977). No modifications were issued as relates to any of the four
orders and the four orders remained in full force and effect until their
termination in March, 1977 (Exh. A-1). The records of the Federal Mine
Safety and Health Review Commission were searched, and failed to show that
the Applications for Review were filed by the Respondent as relates to the
four orders (Exh. A-2).
The Respondent's No. 1 Mine had one coal producing section during
December, 1976, and each of the four orders of withdrawal effectively idled
the entire mine from the moment of their issuance. (See, Applicant's
Requests for Admissions, No. 2, filed July 1, 1977 and Respondent's Reply
thereto, filed July 15, 1977; Application for Compe~tion, Paragraph
No. XII, filed January 24, 1977 and Respondent's Answer, Paragraph XII,
filed April 4, 1977).
-Between December 1, 1976, and December 10, 1976, the Respondent operated
two daily production shifts at the No. 1 Mine, the 7 a.m. to 3 p.m. shift and
the 3 p.m. to 11 p.m. shift. (See, Applicant's Requests for Admissions,
No. 3, filed July 1, 1977 and Respondent's Reply thereto, filed July 15,
1977.) There were no non-production shifts. (See, Applicant's Interrogatories to Respondent, No. 6, filed February 18,-r9'77 and Respondent's Answers
thereto, filed May 16, 1977).
--

2/

Section 104(c)(l) of the 1969 Coal Act provides:
"(c)(l) If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute
to the cause and effect of a mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any notice given to the operator under this Act. If, during the
same inspection or any subsequent inspection of such mine within ninety days
after the issuance of such notice, an authorized representative of the
Secretary finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (d) of this section, to be withdrawn
from, and to be prohibited from entering, such ~rea until an authorized
representative of the Secretary determines that such violation has been
abated."

583

The Respondent's No. 1 Mine is a bituminous coal mine whose operations
or products affect interstate commerce. (See, Applicant's Requests for
·Admissions, No. L, filed July 1, 1977 and Respondent's Reply thereto, filed
July 15, 1977).
The Applicant seeks one week's compensation on behalf of 27 miners idled
by the above-noted orders of withdrawal. Compensation is sought under that
portion of section llO(a) of the 1969 Coal Act, which provides that:
If a coal mine or area of a coal mine is closed by an
order issued under section 104 of this title for an
unwarrantable failure of the operator to comply with any
health or safety standard, all miners who an.idled due to
such order shall be fully compensated, after all interested
parties are given an opportunity for a public hearing on
such compensation and after such order is final, by the
operator for lost time at their regular rates of pay for
such time as the miners are idled by such closing, or for
one week, whichever is the lesser.
As noted by the Court in Rushton Mining Company v. Morton, 520 F.2d 716, 720
(3rd Cir. 1975), compensation under this portion of section llO(a) is
explicitly predicated on the order's being held valid after a hearing.'}_/

3/ The pertinent portions of the Court's analysis of the compensation provisions of the 1969 Coal Act are set forth as follows:
"Reading § 820(a) in its entirety, one sees that clause [l] concerns
withdrawal orders issued under§ 814(a) or (b); clause [2] concerns withdrawal orders which the inspector has certified, under§ 814(c)(l), to be
caused by "an unwarrantable failure of [the] operator to comply with • • •
mandatory health or safety standards;" and clause [3] concerns situations in
which the operator "violates or fails or refuses to comply with any order
issued under" § 814. Compensation of idled miners varies with the three
situations covered by the three clauses. Miners idled by § 814(a) and (b)
withdrawal orders are entitled under clause [l] to compensation for the
balance of the shift during which the withdrawal order was issued, and half
of the next shift, if that shift also was idled. Where there has been a
§ 814(c)(l) certification, clause [2] provides the basis for giving the idled
miners full compensation up to one week, but only after a hearing and after
the withdrawal order has become "final." If the operator fails to comply
with the withdrawal order, clause [3] gives the miners double compensation
for the time during which they should have been idled, through the point at
which the withdrawal order is "complied with, vacated, or terminated."
"We believe that it is clear that in drafting § 820(a) Congress understood the difference between an order which is ultimately upheld and one
which is ultimately vacated, that in clause [2] Congress intended to compensate miners only where the order is ultimately upheld, but that in clauses
[l] and [3] Congress intended to compensate miners even where the order is
ultimately vacated. Any other reading of the section would be inconsistent

584

Bearing these principles in mined it must be concluded that the Applicant's prima fac.ie case in the instant proceeding consists of three basic
elements: First, the existence of the underlying 104(c)(l) notice of violation must be established. Second, it must be established that one or more
of the 104(c)(l) orders was served on the operator or his agent, and that the
condition or practice set forth in such order or orders constituted a violation of the cited mandatory safety standard caused by an unwarrantable failure on the Respondent's part to comply with such standard. See generally,
Kentland-Elkhorn Coal Corporation, 4 IBMA 166, 82 I.D. 234, 1974-1975
OSHD par. 19,633 (1975). Finally, the Applicant must establish the amount of
compensation due each miner idled by such order or orders of withdrawal.
In Zeigler Coal Company, 7 IBMA 280, 84 I.D. ·127,.1977-1978,
OSHD par. 21,676 (1977), the Interior Board of Mine Operations Appeals
(Board) set forth the governing test for unwarrantable failure. The Board
held that a violation of a mandatory standard is caused by an unwarrantable
failure to comply with the standard where "the operator involved has failed
to abate the conditions or practices constituting such violation, conditions
or practices the operator knew or should have known existed or which it
failed to abate because of a lack of due diligence, or because of indifference or lack of reasonable care." 7 IBMA 295-296.
At the outset, it is found that the Applicant has made a prima facie
showing of the existence of the underlying 104(c)(l) notice of violation.
Each of the four subject orders makes reference to the notice. (Exhs. A-3,
A-4, A-5, A-6). F~rthermore, it is significant to note that Paragraph IX
of the application for compensation, filed on January 24, 1977, alleged, in
part, that "[n]o known Orders to date have modified or terminated Unwarrantable Failure Withdrawal Order Nos. 1 GRB, 2 GRB, 3 GRB or 4 GRB." Paragraph
No. IX of the Respondent's answer, filed on April 4, 1977, states that ''[t]he
Respondent denies Paragraph IX and states that all orders and notices that
were issued have been abated as of March 29, 1977." (Emphasis added). This
statement in the Respondent's answer seems to imply that the underlying
104(c)(l) notice was issued,. and, when read in conjunction with the statements contained in the subject orders, confirms a prima facie showing of its
existence.
In view of the times for issuance of the four withdrawal orders, if any,
one of the orders were found valid a basis for 1 week's compensation would
be established.
Certain questions arise as to the validity of some of the orders, however, there is no question as to the adequacy of a prima facie case concerning the validity of Order No. 3 GRB, December 13, 1975, 30 C.F.R. § 1100-2(b).
fn. 3 (continued)
with the section's overall design, since it would ignore the fact that
clause [2] explicitly predicates compensation on the order's being held valid
after a hearing, whereas clauses [l] and [3] have no such requirement.
520 F.2d at 719-720.

585

Accordingly, we will discuss that order.
Order No. 3 GRB, December 13, 1976, 30 C.F.R. § l100-2(b), states that
"[o]nly one (1) outlet valve was installed in the water line that [paralleled] the Nos. 1, 2 and 3 belt conveyors for a distance of about
1,650 feet and fittings suitable for connection was not provided at the one
outlet valve. This condition was observed after a fire was extinguished at
the No. 3 belt conveyor drive." (Exh. A-5). Mandatory safety standard
30 C.F.R. § 75.1100-2(b), provides as follows:
(b) Belt.conveyors. In all coal ·mines, waterlines
shall be installed parallel to the entire length of belt
conveyors and shall be equipped with firehose outlets with
valves at 300-foot intervals along each belt conveyor and
at tailpieces. At least 500 feet of firehose and fittings
suitable for connection with each belt conveyor waterline'
system shall be stored at strategic locations along the belt
conveyor. Waterlines may be installed in entries adjacent
to the conveyor entry belt as long as the outlets project
into the belt conveyor entry.
The waterline in question should have been equipped with outlets with
valves at 300-foot intervals along each belt conveyor and at the tailpieces.
However, the cited waterline was provided with only one outlet valve for a
distance of approximately 1,650 feet. In light of the nature of the condition, the Respondent should have known of its existence. Accordingly, it is
found that a violation of mandatory safety standard 30 C.F.R. § 75.1100-2(b),
existed, and that such violation was caused by an unwarrantable failure on
the Respondent's part to comply with the mandatory safety standard. The
order of withdrawal was valid within the meaning of section llO(a) of the
1969 Coal Act.
In view of the foregoing, it is found that miners idled by the issuance
of Order No. 3 GRB, December 13, 1976, 30 C.F.R. •§ 75.1100-2(b) are entitled
to one week's compensation at their regular rate of pay under section llO(a)
of the 1969 Coal. 4/ The idled miners and the amount of compensation to
which each miner is entitled are identified as follows:
4/ It is found that the dates and hours the miners would have worked during
the one week period following the issuance of the order are as set forth
in. the supplemental application for compensation as amended to conform with
the proof. (See, Tr. 49-56 and references cited ·therein). These time
periods are s-;;-forth for the individual miner-claimants as follows:
"(A) Keith McCoy, Water Cooper, Taby Cooley, Gregory Boggs, Jack Matney
and Danny Mahon were idled from 9:45 a.m. until 3:00 p.m. on December 13,
1976, and for all of their shift on December 14, 15, 16, and 17, 1976, and
from 7:00 a.m. until 9:45 a.m. on December 20, 1976.
"(B) George Tiller, Charles Stover, Larry Lester, William Workman,
Orgille Napier, Kirby Cisco, Andrew Miller, Mearl Fields, Robert Fields,
Philip Springer and Bobby Robinson were idled for all of the second shift on
December 13, 14, 15, 16, and 17, 1976.

586

NAME

Keith McCoy
Walter Cooper
Taby Cooley
Gregory Boggs
Jack Matney
Danny Mahon }.}
George Tiller
Charles Stover
Larry Lester
William Workman
Orville Napier
Kirby Cisco
Andrew Miller
Mearl Fields
Robert Fields

HOURLY
WAGE

13

14

7.59
7.59
7.59
7.59
7.59
7.59
8.145
8.145
8.145
8.145
7.74
7.74
7.74
8.145
7.74

39.85
39.85
39.85
39.85
39.85
39.85
65.16
65 .16
65 .16
65.16
61.92
61.92
61.92
65 .16
61.92

60. 72
60.72
60. 72
60.72
60.72
60.72
65.16
65 .16
65.16
65 .16
61.92
61.92
61.92
65.16
61.92

Decemberz 1976
15
16
60. 72
60.72
60.72
60.72
60. 72
60.72
65 .16
65 .16
65.16
65.16
61.92
61.92
61.92
65 .16
61.92

60. 72
60.72
60.72
60.72
60. 72
60.72
65.16
65 .16
65.16
65 .16
61.92
61.92
61.92
65 .16
61.92

17

20

TOTAL

60.72
60. 72
60.72
60.72
60. 72
60.72
65.16
65 .16
65.16
65 .16
61.92
61.92
61.92
65.16
61.92

20.87
20.87
20.87
20.87
20.87
20.87

303.60
303.60
303.60
303.60
303.60
303.60
325.80
325.80
325.80
325.80
309.60
309.60
309.60
325.80
309.60

fn. 4 (continued)
"(C) Frank Evans, Kyle Cline, Alvin Chapman and Kenneth Whited were
idled from 9:45 a.m. until 3:00 p.m. on December 13, 1976, and for all of
their shift on December 14, 15, 20, and 21, 1976, and from 7:00 a.m. until
9:45 a.m. on December 22, 1976.
"(D) Earl Hall was idled for all of the second shift on December 13,
14, 15, 60, and 21, 1976.
"(E) Willard Newsome and Tennis Canterbury were idled from 9 :45 a.m.
until 3:00 p.m. on December 13, 1976, and for all of the first shift on
December 14, 15, 16 and 20, 1976, and from 7:00 a.m. to 9:45 a.m. on
Dec.ember 21, 1976.
"(F) Bruce Cooley was idled from 9:45 a.m. until 3:00 p.m. on
December 13, 1976, and for all of the first shift on December 20, 21, 22,
and 23, 1976, and from 7:00 a.m. until 9:45 a.m. on December 24, 1976.
"(G) Philip Jones was idled for the second shift on December 13, 20,
21, 22, and 23, 1976.
"(H)
Isaac Bryant was idled for all of the first shift on December 14,
15, 16, 17, and 20, 1976."
5/ The May 16, 1977 answers to interrogatory Nos. 8 and 9 contain information as relates to all miner-claimants except Danny Mahon. The Respondent
expressly admitted that Danny Mahon was a regular day shift miner at the
No. 1 Mine. (Application for Compensation, paragraph XIII filed January 24,
1977, and Answer thereto filed April 4, 1977). Additionally, the Respondent
is deemed to have admitted the averment that Mr. Mahon's hourly wage was
7.59 per hour, as set forth in the Supplemental Application for Compensation,
due to the Respondent's failure to file an answer to said pleading denying
the allegation. See 29 C.F.R. 2700.l(b), reported at 44 Fed. Reg. 38227
(1979), Rules 8(d) and 15(a), of the Federal Rules of Civil Procedure.

587

Phillip Springer
Bobby Robinson §_/

7.74
7.59

December
Frank Evans
Kyle Cline
Alvin Chapamn
Kenneth Whited
Earl Hall

7.59
7.59
7.995
8.145
8.145

December
Willard Newsome
Tennis Canterbury

7.59
7.995

December
Bruce Cooley
Phillip Jones

7.995
8 .145

December
Isaac Bryant

7.59

61.92
60 .72

61.92
60 .72

61.92
60.72

61.92
60 .72

61.92
60. 72

309.60
303.60

13

14

15

20

21

22

39.85
39.85
41.97
42.76
65 .16

60 .72
60. 72
63.96
65.16
65 .16

60.72
60.72
63.96
65.16
65 .16

60.72
60.72
63.96
65.16
65 .16

60.72
60.72
63.96
65 .16
65 .16

20.87
20.87
21.99
22.40

13

14

15

16

20

21

39.85
41.97

60.72
63.96

60. 72
63.96

60.72
63.96

60.72
63.96

20.87
21.99

13

20

21

22

23

24

41.97
65.16

63.96
65.16

63.96
65 .16

63.96
65 .16

63.96
65.16

21.99

14

15

16

17

20

60. 72

60 .72

60. 72

60. 72

60.72

303.60
303.60
319.80
325.80
325.80

303.60
319.80

319.80
325.80

303.60

(See, Applicant's Interrogatories to Respondent, Nos. 8 and 9, filed
February 18, 1977 and Applicant's Responses thereto, filed May 16' 1977).
Interest computed at the rate of 6 percent per annum will be awarded
covering the periods from the dates of idlement, commencing December 14,
1976, to the date upon which the compensation is paid. Local Union 5869 v.
Youngstown Mines, 1 FMSHRC 990, 1979 OSHD par. 23,803 (1979).
The Applicant seeks an award of costs and attorneys fees based upon the
"Respondent 1 s flagrant refusal to respond to the process and jurisdiction of
this Court" (Applicant's Proposed Findings of Fact and Conclusions of Law,
pg. 9). Section 110(b)(3) of the 1969 Coal Act expressly permits the successful applicant in a discrimination proceeding to recover reasonable costs
and reasonable attorney's fees. Section llO(a) accords no such right to the
successful applicant in a compensation case. Accordingly, the Applicant's
request must be denied. Accord, Local Union 9856, District 15, United Mine
Workers of America v. CF&I Steel Corporation, Docket No. DENV 73-111
(October 4, 1973).
6/ The May 16, 1977, answers to interrogatory Nos. 8 and 9 list Bobby
Robinson's hourly wage as $7.74. Since the Applicant has sought one week's
compensation for Mr. Robinson at the rate of 7.59 per hour, the award will
be based on the hourly wage rate of $7.59.

588

V.

Conclusions of Law

1. The parties have been subject to the provisions of the 1969 Coal
Act and the 1977 Mine Act at all times relevant to this proceeding.
2. Under the Acts, the Administrative Law Judge has jurisdiction over
the subject matter of and parties to thts proceeding.
3. Order No. 3 GRB, December 13, 1976, 30 C.F.R. § 75.1100-2(b) is
valid within the meaning of section llO(a) of the 1969 Coal Act. Such order
remained in full force and effect until terminated in March, 1977, and the
Respondent never sought administrative review of ~uch order.
4. 'All oral determinations made at the hearing granting various motions
are affirmed.
5. All of the conclusions of law set forth in Part IV of this decision
are reaffirmed and incorporated herein.
VI.

Proposed Findings of Fact and Conclusions of Law

The Applicant filed proposed findings of fact and conclusions of law.
Such submission, insofar as it can be considered to have contained proposed
findings and conclusions, have been considered fully, and except to the
extent that such findings and conclusions have been expressly or impliedly
affirmed in this decision, they are rejected on the ground that they are,
in whole or in part, contrary to the facts and law or because they are
immaterial to the decision in this case.
ORDER
The Respondent is ORDERED to pay compensation to the individual miners
as set forth below, with interest computed at the rate of 6 percent per annum
for the period commencing on the day following the day each amount was due
in December of 1976, and ending on the date when the compensation is paid:
NAME
Keith McCoy
Walter Cooper
Taby Cooley
Gregory Boggs
Jack Matney
Danny Mahon
George Tiller
Charles Stover
Larry Lester
William Workman
Orville Napier

HOURLY
WAGE

13

14

15

1976
16

17

20

TOTAL

7.59
7.59
7.59
7.59
7.59
7.59
8.145
8.145
8.145
8.145
7.74

39.85
39.85
39.85
39.85
39.85
39.85
65.16
65.16
65 .16
65 .16
61.92

60 .72
60. 72
60. 72
60.72
60. 72
60. 72
65.16
65.16
65 .16
65 .16
61.92

60.72
60. 72
60 .72
60. 72
60 .72
60. 72
65 .16
65.16
65 .16
65.16
61.92

60.72
60.72
60.72
60. 72
60. 72
60. 72
65 .16
65 .16
65 .16
65.16
61.92

60.72
60. 72
60.72
60. 72
60.72
60.72
65.16
65.16
65.16
65.16
61.92

20.87
20.87
20.87
20.87
20.87
20.87

303.60
303.60
303.60
303.60
303.60
303.60
325.80
325.80
325.80
325.80
309.60

December~

589

Kirby Cisco
Andrew Miller
Mearl Fields
Robert Fields
Phillip Springer
Bobby Robinson

7.74
7.74
8.145
7.74
7.74
7.59

December
Frank Evans
Kyle Cline
Alvin Chapamn
Kenneth Whited
Earl Hall

7.59
7.59
7.995
8.145
8.145

December
Willard Newsome
Tennis Canterbury

7.59
7.995

December
Bruce Cooley
Phillip Jones

7.995
8.145

December
Isaac Bryant

7.59

61.92
61.92
65 .16
61.92
61.92
60.72

61.92
61.92
65.16
61.92
61.92
60.72

61.92
61.92
65.16
61.92
61.92
60. 72

61.92
61.92
65.16
61.92
61.92
60.72

61.92
61.92
65.16
61.92
61.92
60.72

13

14

15

20

21

22

39.85
39.85
41.97
42.76
65 .16

60.72
60.72
63.96
65.16
65.16

60.72
60.72
63.96
65.16
65 .16

60. 72
60. 72
63.96
65 .16
65.16

60.72
60.72
63.96
65.16
65 .16

20.87
20.87
21.99
22.40

13

14

15

16

20

21

39.85
41.97

60.72
63.96

60.72
63.96

60.72
63.96

60. 72
63.96

20.87
21.99

13

20

21

22

23

24

41.97
65 .16

63.96
65.16

63.96
65 .16

63.96
65 .16

63.96
65 .16

21.99

14

15

16

17

20

60 .72

60.72

60.72

60 .72

60.72

309.60
309.60
325.80
309.60
309.60
303 .60

303.60
303.60
319.80
325.80
325.80

303.60
319.80

319.80
325.80

303.60

Distribution:
Peter Mitchell, Esq., United Mine Workers of America, 900-15th Street,
NW., Washington, DC 20005 (Certified Mail)
T. I. Varney, Secretary-Treasurer, FMV Coal Corporation, No. 1 Mine,
P.O. Box 154, Matewan, WV 25678 (Certified Mail)
Thomas A. Mascolino, Esq., Assistant Solicitor, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

590

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

fEB 2 6 1sao

ITNANN COAL COMPANY,

Contest of Order
Contestant

v.

Docket No. HOPE 79-307

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

Order No. 0662348
February 26, 1979
Respondent

Itmann No. 3 Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for Contestant;
Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for Respondent MSHA;
Joyce A. Hanula, Legal Assistant, UMWA, Washington, D.C.,
for Respondent UMWA.

Before:

Judge Stewart

On March 14, 1979, Itmann Coal Company filed for review of Order No.
0662348, dated February 26, 1979, pursuant to the provisions of section
105(d) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the
Act). MSHA and United Mine Workers of America (UMWA) subsequently filed
answers admitting the issuance of the order but denying the other allegations
set forth in the contest of order. The hearing in this matter was held on
August 29, 1979, in Charleston, West Virginia. The parties chose to present
oral argument at the conclusion of the hearing.
On February 23, 1979, inspector Claude R. Hall issued a section 104(a)
citation to Contestant at its Itmann No. 3 Mine in the course of a safety
and health inspection. The inspector alleged a violation of 30 CFR
75 .1103-4(a) and described the condition or practice as follows: "The
automatic fire sensor and warning device system was not provided with a
device between the Nos. 2 and 2-1/2 Bee Tree Belts to identify a fire within
each belt flight." Section 75.1103-4(a) requires that automatic fire sensor
and warning device systems shall provide identication of fire within each

591

belt unit operated by a belt drive. The sensor is a device approximately
5 inches long, 2 inches wide and 1-1/2 inches thick. Each device has a
plug and a socket by which it is connected to the sensor line. A single
sensor line extends for the entire lengtn of the belt system. As noted on
the citation, the inspector observed that only one such device had been provided for the Nos. 2 and 2-1/2 belts. He directed that the condition be
abated by 8 a.m. on February 26, 1979.

On Friday, February 23, at quitting time, Cecil Farley, a maintenance
foreman at the No. 3 Mine, was charged by Contestant's chief electrician
with the responsibility for correcting the condition. He was to correct it
during the Saturday shift. On Saturday morning, Mr. Farley gave a sensor
to an electrician and instructed him to install the device in the fire sensor
line at the belt drive of the No. 2-1/2 belt. Because he was unaware on
Saturday that a plug and socket were not located in the sensor line at the
intersection of the Nos. 2 and 2-1/2 belts, Mr. Farley did not mention the
necessity of splicing a plug and socket into the sensor line. The electrician walked along the belt in an outby direction until he located a plug and
socket approximately two crosscuts outby the No. 2-1/2 belt drive. He
connected the sensor at that location.
Mr. Farley did not see the electrician again that Saturday. He did not
question the electrician or examine his work. As a consequence, he did not
learn of the misplacement until Monday morning when the electrician informed
him that he had installed the sensor two crosscuts outby the drive.
Mr. Farley thereupon notified Denny Smith, a belt foreman, that the box had
been installed at the wrong location so that Mr. Smith could, in turn,
notify the inspector.
1he inspector returned to the affected area on Monday, February 26,
1979, and was informed by Mr. Smith, that the sensor had been installed at
a point along the belt a number of crosscuts outby the intersection of the
two belts. The inspector thereupon issued order of withdrawal No. 0662348,
pursuant to section 104(b) 1/ of the Act. He described the condition or
practice which led to the order as follows: "Not enough effort has been
made to install a device between Nos. 2 and 2-1/2 Bee Tree Belts on the
sensor line to identify a fire within each belt flight." Order No. 0662348
1/

Section 104(b) of the Act reads as follows:
"If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described in
a citation issued pursuant to subsection (104(a)) has not been totally abated
within the period of time as originally fixed therein or as subsequently
extended, and (2) that the period of time for the abatement should not be
further extended, he shall determine the extent of the area affected by the
violation and shall promptly issue an order requiring the operator of such
mine or his agent to immediately cause all persons, except those persons
referred to in subsection (c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the Secretary
determines that such violation has been abated."

592

was terminated 70 minutes later at 1:20 p.m., after the requisite device was
installed between the Nos. 2 and 2-1/2 belts.
In order to abate the condition, the operator cut a plug and socket from
a roll of cable, cut the existing sensor line at the drive, spliced the plug
and socket into the sensor line, plugged in the monitoring device at the
drive, and unplugged the device located two crosscuts outby. The spool of
sensor cable from which the plug and socket_ used to abate the condition were
taken had been ordered on Friday, February 23. It arrived at the mine on
Monday.
Darrel Worley, a miner operator at the No. 3 Mine, testified that the
materials necessary to abate the condition were available elsewhere. He
observed available materials 1 week before the issuance of the order. These
materials were located in an adjacent and accessible, but technically
separate mine--the No. 4 Mine. Mr. Worley testified that materials could be
and were regularly obtained from the No. 4 Mine for use in the No. 3 Mine
Inspector Hall related a conversation that he had with Mr. Beard, one
of Contestant's superintendents. The inspector quoted Mr. Beard as admitting
that there were "plugs all over the mine." 2/ The inspector also testified
that he was told by another of Contestant's-superintendents that the necessary materials were available in the mine.
Section 104(b) of the Act requires that an inspector shall issue an
order under that subsection when he finds that a violation described in a
citation issued pursuant to section 104(a) has not been totally abated within
the time specified and that the time for abatement should not be further
extended. Contestant admitted, through counsel, that the 104(a) citation
was properly issued. That is, the monitoring device was not located at the
belt drive as required. Moreover, it was clearly established that the device
had not been installed at the No. 2-1/2 belt drive on Monday when the inspector issued the subject order. Counsel for Contestant asserted the following
at the hearing: "The only reason for this hearing is whether or not the
circumstances justified the issuance of the (b) order, whether or not
(Contestant) made a reasonable effort under the circumstances."
The test as to whether a 104(b) order was properly issued was enunciated
by the Board of Mine Operations Appeals in United States Steel Corporation,
7 IBMA 109, 116 (1976). 1J I t was stated therein that "the inspector's
'{/ Throughout the transcript the term "plug" was used to refer to both
sockets and plugs.
3/ The Board was addressing section 104(b) of the Federal Coal Mine Health
and Safety Act of 1969, 30 u.s.c. § 801 ~~· (1970), which reads as
follows:
"Except as provided in subsection (i) of this section, if, upon any
inspection of a coal mine, an authorized representative of the Secretary

593

determination to issue a section 104(b) order must be based on the facts
confronting the inspector at the time he issued the subject withdrawal order
regarding whether an additional abatement period should be allowed." The
critical question is whether the inspector acted reasonably in failing to
extend the time for abatement and in issuing the subject order.
At the outset, it must be noted that the violation was nonserious in
nature. The No. 2 belt was 1,360 feet in length, while the No. 2-1/2 belt
was 1,852 feet long, for a total of 3,212 feet. When the violation was
first noted, the Nos. 2 and 2-1/2 belts were monitored by a single device.
This device would have warned of a fire which occurred anywhere along these
two belts, but would not have distinguished between the two belts.
The placement of the sensing device two crosscuts outby the belt drive
would have warned of any fire which occurred along the No. 2-1/2 belt and
160 feet of the No.2 belt. The sensor located at the No. 2 belt drive
would have warned of any fire occurring along the No. 2 belt except for the
most inby 160 feet.
The length of time specified for abatement by the inspector was more
than adequate. The inspector estimated that the length of time needed to
install the device would be 20 minutes. Darrell Worley estimated that the
installation should take 30 minutes. Seventy minutes actually elapsed
between the issuance and termination of the order. As noted above, the
inspector allotted almost 3 full days for abatement.
Contestant interposed the argument that the materials with which to abate
the condition were ordered on Friday, but were not on hand until Monday. 4/
fn. 3 (continued)
finds that there has been a violation of any mandatory health or safety
standard but the violation has not created an imminent danger, he shall issue
a notice to the operator or his agent fixing a reasonable time for the abatement of the violation. If, upon the expiration of the period of time as
originally fixed or subsequently extended, an authorized representative of
the Secretary finds that the violation has not been totally abated, and if
he also finds that the period of time should not be further extended, he
shall find the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine or his agent to
cause immediately all persons, except those referred to in subsection (d) of
this section, to be withdrawn from, and to be prohibited from entering, such
· area until an ·authorized representative of the Secretary determines that the
violation has.been abated."
1his section of the 1969 Act and section 104(b) of the 1977 Act are
substantially similar with respect to the requirements each imposes on an
inspector confronted with an operator's failure to abate a violation within
the time specified.
4/ Parenthetically, Contestant's assertion that materials were not on hand
to abate the condition is at odds with its assertion that the failure to

594

This argument is rejected. The testimony of the inspector and Mr. Worley
established that plugs and sockets were available. Al,though the plug and
socket which were·used for abatement were taken from a fresh spool of sensor
wire, they could have been obtained within the mine during the 3 days set for
abatement. For instance, a suitable plug and socket were located on the
sensor line two crosscuts outby the No. 2-1/2 belt drive, at the point where
the electrician connected the monitoring device on Saturday. Other plugs and
sockets were located on the sensor line at intervals of 250 feet.
Contestant also maintained that reasonable efforts had been made to abate
the condition prior to the issuance of the order--a superintendent ordered
Mr. Farley to correct the situation and Mr. Farley had, in turn, directed
an electrician to place a sensor at the No. 2-1/2 belt drive. The inference
that these actions absolved Contestant of fault in the failure to abate is
rejected. Blame for the failure cannot be laid entirely to the electrician.
Mr. Farley did not know that the sensor line did not contain a socket and
plug at the belt drive, and he could not, therefore, fully inform the electrician of the actions necessary for abatement. In addition, he did not
question the electrician or examine his work afterwards. In sum, mine
management did not adequately supervise the electrician's efforts. Applicant
did not demonstrate that it made reasonable efforts to abate the condition
prior to the issuance of the order.
Despite the fact ~hat the condition was nonserious and rendered even
less serious by Contestant's abatement efforts, the inspector reasonably
exercised his authority in refusing to extend the time specified for abatement. The abatement effort requested by the inspector was appropriate and
the time specified for abatement was ample. Although an extension of time
might be appropriate when mine management through no fault of its own is
unable to abate a condition within the time as originally set or extended,
an extension in this instance would have amounted to condonation of Contestant's inadequate abatement efforts.
The facts with which the inspector was confronted on February 26, 1979,
did not warrant an extension of time for abatement. The issuance of Order
No. 662348 was, therefore, entirely proper.
ORDER
It is ORDERED that the above-captioned contes~ of order is hereby
DISMISSED.
Forrest E. Stewart '
Administrative Law Judge
fn. 4 (continued)
abate was the fault of a non-management employee rather than management.
Contestant is asserting on the one hand that it was aware of a lack of
materials necessary for abatement and, on the other hand, that management
absolved itself by ordering an electrician to abate the condition on
Saturday morning, but that he failed to abate the condition as ordered.

595

Distribution:
Karl T. ·Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241. (Certified Mail)
Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Joyce A. Hanula, Legal Assistant, UMWA, 900 15th Street, NW.,
Washington, DC 20005 (Certified Mail)

596

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

22041

FEB 2 6 t980

Civil Penalty Proceedings

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

Docket No. HOPE 79-128-P
A/O No. 46-03773-03003V

Petitioner

v.
Docket No. HOPE 79-129-P
A/O No. 46-03773-03004V

AMHERST COAL COMPANY,
Respondent

MacGregor No. 8 Mine
DECISION
Appearances:

Inga A. Watkins, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner;
Edward I. Eiland, Esq., Eiland & Bennett, Logan, West Virginia,
for Respondent.

Before:

Judge Cook

I.

Procedural Background

On November 22, 1978, the Mine Safety and Health Administration
(Petitioner) filed petitions for assessment of civil penalty in the abovecaptioned proceedings pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a) (1978) (1977 Mine Act). The
petitions collectively allege two violations of provisions of the Code of
Federal Regulations. Answers were filed by Amherst Coal Company (Respondent) on December 12, 1978.

A notice of hearing was issued on June 5, 1979, scheduling the cases
for hearing on the merits on July 19, 1979, in Beckley, West Virginia. The
hearing was held as scheduled with representatives of both parties present
and participating.
A schedule for the submission of posthearing briefs and proposed findings of fact and conclusions of law was agreed upon after the presentation
of the evidence. · The briefing schedule was subsequently revised at the
Petitioner's request. Under the revised schedule, posthearing briefs and
proposed findings of fact and conclusions of law were due on September 28,
1979. Reply briefs were due by October 12, 1979. The Petitioner's brief
was filed on September 28, 1979. The Respondent did not file a brief.

597

II.

Violations Charged
A.

Citation No.

Date

30 CFR Standard

29736

4/4/78

75.1725

B.

III.

Docket No. HOPE 79-128-P

Docket No. HOPE 79-129-P
Order No.

Date

30 CFR Standard

29738

4/4/78

75.1725

Evidence Contained in the Record
A.

Stipulations

The parties entered into various stipulations which are set forth in
the findings of fact, infra.
B.

Witnesses

The Petitioner called as its witness Henry J. Keith, a Mine Safety and
Health Administration (MSHA) inspector.
The Respondent called as its witnesses Ernest Marcum, company safety
inspector for the Respondent; Shirley Adkins, a·miner whose duties included
the repair and inspection of electrical equipment at the subject mine in
April 1978; Virgil Damron, chief electrician at the subject mine; Edward L.
Chafin, a miner at the subject mine serving as chairman of the mine safety
committee for his local union; and Charle.s Rhodes, a section foreman at the
subject mine.
C.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:

M-1 is a copy of Citation No. 29736, April 4, 1978, 30 CFR 75.1725
and a copy of the termination thereof.
M-2 is a two-page document containing photographs of a scoop.
M-3-A is a copy of Order No. 29738, April 4, 1978, 30 CFR 75.1725
and a copy of the termination thereof.
M-3-B is a copy of a modification of M-3-A.
M-4 is a diagram of a coal drill.

598

M-5 is a computer printout compiled by the Directorate of Assessments listing the history of previous violations for which the Respondent
had paid assessments beginning April 4, 1975, and ending April 4, 1978.
2.

The Respondent introduced the following exhibits in evidence: 1/
0-1 through 0-8 are photographs of the subject scoop.
0-9 through 0-15 are photographs of the subject coal drill. Jj
0-17 is a document styled "Examination of Electrical Equipment."

IV.

Issues

Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of the 1977 Mine 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.
V.

Opinion and Findings of Fact
A.

Stipulations

During the course of the hearing, the parties entered into the following stipulations:
1. The Amherst Coal Company is the owner and operator of the MacGregor
No. 8 Mine and, as such, is subject to the jurisdiction of the 1977 Mine
Act (Tr. 5, 8, 9).
2. The copies of the subject citation, order, termination and the
modification of the order were properly served on Amherst Coal Company (Tr.

5, 8).
1/ Exhibit 0-16, a schematic diagram of the controls of the scoop, was withdrawn by the Respondent (Tr. 365).
2/ Exhibit 0-11, a photograph of a coal drill, was not received from the
reporter when the exhibits received at the hearing were forwarded with the
transcript in this case. The attorney for the Respondent, who had introduced
the exhibit, in a letter dated February 11, 1980, stated that he was willing
to have the case decid.ed in the absence of Exhibit 0-11. The attorney for
the Petitioner made a similar statement in a letter dated February 19, 1980.

599

3. Henry J. Keith is a duly authorized representative of the Secretary
of Labor and wa~ so during April, 1978 (Tr. 5, 8).
4. Amherst Coal Company exhibited good faith in attempting to rapidly
abate the subject citation and order (Tr. 5, 8).
5.

Amherst Coal Company is a large company (Tr. 5, 8).

6. The proposed penalty will not affect Amherst Coal Company's ability
to continue in business (Tr. 5, 8, 9).
7. Amherst Coal Company's total tonnage dur~ng 1978 at all mines was
1,377,448 tons of coal (Tr. 9).
B.

Opinion and Findings of Fact

1.

Docket No. HOPE 79-128-P:
30 CFR 75 .1725

Citation No. 29736, April 4, 1978,

Occurrence of Violation
MSHA inspector Henry J. Keith arrived at the Respondent's MacGregor
No. 8 Mine at approximately 8 a.m. on April 4, 1978, to conduct a spot
inspection (Tr. 19). Mr. Ernest Marcum, the Respondent's safety inspector,
accompanied Inspector Keith during the inspection (Tr. 20). At approximately 10:45 a.m., the subject citation was issued alleging a violation of
mandatory safety standard 30 CFR 75.1725 in that the S & S scoop located
in the 001 section:
[W]as not maintained in a safe operating condition in that
the emergency switch on the control bo~ was frozen and
inoperative. The power lead to the battery was damaged
with exposed wire. The inner parts of the rear light was
missing with wire leads exposed. Exposed moving universal
was not guarded, no fender over left drive wheel to protect
persons from injury.
(Exh. M-1).
Mandatory safety standard 30 CFR 75.1725 provides, in part, that:
"(a) Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition
shall be removed from service immediately."
The inspector's testimony is in accord with the statements contained
in the citation. His testimony establishes the existence of the four cited
defects on the S & S scoop and also establishes that the defects rendered
the machine unsafe within the meaning of the subject regulation (Tr. 22-26,
28-39, 73, 75-76, 79, 84-86, 91, 241-242). Additionally, the inspector
observed the machine in operation (Tr. 22, 71, 92-96).

600

The testimony of Inspector Keith is at variance with the testimony of
the Respondent's .witnesses on two key points: (1) the condition of the
emergency switch, and (2) the condition of the power lead to the battery.
Messrs. Marcum and Chafin testified that the disconnect switch on the
scoop was frozen and inoperative (Tr. 108-109, 195). The testimony of both
witnesses collectively asserts that both the panic bar and the emergency
switch were properly functioning (Tr. 129, 195).
The inspector testified that the power lead mentioned in the citation
connected the battery to the power circuits (Tr. 76). According to the
inspector, the power lead extended above the surface of the frame of the
scoop on the operator's side. Some of the insulation had been torn off
exposing the cable's metal wires (Tr. 31-32, 76-77).
Messrs. Marcum and Chafin disagreed, testifying that the exposed cable
was inside the meta~ bell, or plug, which served to attach the cable to the
battery. According to both witnesses, it was necessary to depress the cable
and peer inside the bell in order to see the exposed cable (Tr. 113, 194,
204). Both witnesses testified that they did not see any exposed cable outside the bell (Tr. 113, 194) and indicated that Inspector Keith depressed
the cable in order to see the exposed wire (Tr. 133, 204). However, the
inspector testified that he did not have to depress the cable and peer under
the bell in order to see bare wire (Tr. 79).
Numerous inconsistencies in the evidence presented by the Respondent
serve to impeach the credibility of the Respondent's witnesses in those
areas in which their testimony is at stark variance with the testimony of
Inspector Keith. These inconsistencies cast a cloud over their testimony
in all such areas depriving it of probative value. The major areas are
set forth below.
First, Mr. Marcum, the company safety inspector, and Mr. Damron, the
chief electrician, disagreed as to the identity of the disconnect switch on
Exhibits 0-6 and 0-7 (Tr. 110-111, 172-173). Second, an inconsistency is
present in the testimony of Mr. Marcum and Mr. Chafin as relates to the
exposed universal. According to Mr. Marcum, the inspector issued this portion of the citation to obtain guarding on a rounded disc located near the
universal, not to obtain a covering for the universal itself (Tr. 115, 138).
However, Mr. Chafin indicated that this portion of the citation was issued
because both the disc and the universal were uncovered (Tr. 208). Third,
the conduct of Mr. Marcum at the time the citation was issued is inconsistent with his testimony on a crucial point. According to Mr. Marcum, the
panic bar and emergency switch were in working order. He testified that
Inspector Keith indicated that he was issuing the citation for the frozen
disconnect switch (Tr. 129-130). However, the citation served to Mr. Marcum
clearly states that "the emergency switch on the control box was frozen and
inoperative" (Exh. M-1)~ (Emphasis added.) There is no indication that
Mr. Marcum mentioned this to the inspector at the time and, in fact, he
testified that he expected the inspector to give testimony at the hearing

601

concerning the disconnect switch, not the emergency switch (Tr. 129). In
view of the clear statement contained in the citation, I find it highly
improbable that Mr. Marcum would not have sought a clarification from the
inspector at the time as to why the emergency switch was cited when the
alleged conversation at the machine clearly indicated that another switch
was being cited. Additionally, Mr. Damron testified during cross-examination
that the emergency switch was repaired on April 4, 1978, subsequent to the
inspection (Tr. 180-181). However, he retracted this testimony during
redirect examination (Tr. 182-183).
Although Messrs. Marcum, Damron, and Chafin all claimed that the panic
bar and emergency switch worked properly there was· considerable inconsistency
in their testimony as to (1) whether the panic bar was checked at all,
(2) who checked it, (3) who was present, and (4) whether the power was turned
on when it was checked.

On .the first and second points Mr. Chafin said first that he checked the
panic bar with no power on (Tr. 195), then later he said that no request was
made for a test of the panic bar and he saw no one test it (Tr. 218). However, Mr. Marcum said the inspector tested it (Tr. 146). On the other hand,
Mr. Damron said that he himself tested it (Tr. 174).
On the third point, Mr. Marcum and Mr. Chafin said Virgil Damron came
to the scoop and told the inspector that the frozen switch was a disconnect
switch (Tr. 129, 195). However, Mr. Damron, the chief electrician, said that
he did not know where the inspector was when he tested the panic bar. He
said that the inspector could have been there but he had no idea who was
there and that he did not know if the inspector was present (Tr. 184-186).
The inspector had stated that he did not see an electrician at the time of
the scoop inspection (Tr. 75, 237, 250-251).
As to the fourth point, Mr. Marcum and Mr. Chafin said no power had
been used on the scoop during the test of the panic bar (Tr. 146, 195).
However, Mr. Damron said he tested the panic bar and emergency switch with
the power on (Tr. 174).
Accordingly, I conclude that the conditions set forth in the citation
existed as alleged and rendered the S & S scoop unsafe within the meaning
of the regulation. A violation of 30 CFR 75.1725 has been established by
a preponderance of the evidence.
Gravity of the Violation
The MacGregor No. 8 Mine was wet and muddy and possessed an irregular
bottom contour (Tr. 21). Float coal dust was suspended in the air due to
dry drilling being performed with a coal drill in the nearby face (Tr. 30).
The miners working in the area had wet hands and clothing (Tr. 32). Sparks
were observed emanating from the broken rear light while the machine was in
operation (Tr. 22, 33-34). The condition of the rear light and the condition of the battery cable could have resulted in miners sustaining electrical burns or electrical shocks and, due to the float coal dust, could have

602

resulted in a mine fire or explosion (Tr. 23, 30-35, 177-178, 181-182).
Four miners were exposed to the former hazard while eight to nine miners
were exposed to the latter hazard (Tr. 33, 35).
The inspector testified that the inoperative emergency switch exposed
the machine operator and miners working in the vicinity of the machine to
injuries ranging from lacerations to a fatality and that the wet and muddy
conditions and irregular bottom contour could contribute to an occurrence
(Tr. 25-29). However, it is significant to note that the machine was
equipped with a footbrake (Tr. 74). Four or five miners were exposed to
this hazard.
The inspector testified that it is customary in the mining industry for
miners to transport rock dust, half headers, wedges, bolts, and bolt plates
on the frames of scoops (Tr. 24, 36-37). He testified that materials of this
type were observed on the body of the subject scoop on April 4, 1978 (Tr. 83,
97). According to the inspector, an object could fall against the universal
during the operation of the scoop and become a flying projectile. This could
result in the loss of an eye or other serious injury. Four miners were
exposed to the hazard (Tr. 23-24, 35-36).
The inspector testified that the absence of a fender over the left rear
wheel made it possible for a miner to maneuver his body between the wheel
and the frame in order to connect the cable to the battery. A similar condition had resulted in a fatality at another mine (Tr. 24, 84-86).
Based on the foregoing, I conclude that the violation was very serious.
Negligence of the Operator
The cited conditions were readily observable and should have been
detected by the section foreman (Tr. 52-60). Accordingly, I conclude that
the Respondent demonstrated ordinary negligence.
Good Faith in Attempting Rapid Abatement
The parties stipulated that the Respondent exhibited good faith in
attempting rapid abatement (Tr. 5).
2.

Docket No. HOPE 79-129-P:
30 CFR 75.1725

Order No. 29738, April 4, 1978,

Occurrence of Violation
The subject order of withdrawal was issued by Inspector Keith during the
course of his April 4, 1978, spot inspection of the Respondent's MacGregor
No. 8 Mine (Tr. 259). The citation alleges, in pertinent part, that the coal
drill in the 001 section "was not maintained in a safe operating condition
in that * * * the stop and start switch was damaged and not connected to the
deenergizing device. The coal drill could not be deenergized quickly in the

603

event of an emergency" (Exh. M-3-A), in violation of mandatory safety standard 30 CFR 75.1725. The coal drill was in operation at the time (Tr.
269-270, 298).
The testimony of the inspector differs radically from the testimony of
the Respondent's witnesses as relates to the condition of the coal drill on
the date in question. According to the inspector, the butterfly-type stop
and s·tart switch was damaged in such a manner that a piece of wire, extending from the top part of the switch to the leg of the coal drill's canopy,
was being used to hold the switch in the "on" position (Tr. 261, 275,
294-295). Additionally, he testified that the deenergizing device, or
panic bar, was supposed to be connected to the stop and start switch, but
that it was not so connected (Tr. 262, 275, 277). 'According to the inspector, a bolt used to hold the panic bar in line down the side of the machine
was missing, thus causing the end of the bar to drop (Tr. 289, 296).
Accordingly, the end of the bar was lowered beyond the point where it made
the connection with the start and stop switch (Tr. 351-352).
The Respondent's witnesses contradicted the inspector on both points.
Mr. Marcum testified that he did not observe any wire around the panic bar
(Tr. 315), and Mr. Chafin testified that the sole function of the wire
observed by the inspector was to operate the light switch. Mr. Chafin also
testified that wire was not used on the panic bar (Tr. 334-335). However,
it is significant to note that the inspector's testimony addressed the
presence of wire around the stop and start switch and not on the panic bar.
According to Messrs. Marcum and Damron, the panic bar was connected to
the switch by an assembly consisting of a ~od, a swivel sleeve and a spring.
The rod was attached to the panic bar proper and the swivel sleeve was
attached so as to operate the switch. The spring was located inside the
swivel sleeve. The end of the rod was inserted into one end of the swivel
sleeve and rested against the spring when the assembly was properly connected
(Tr. 304-307, 329-330).
Messrs. Marcum and Chafin indicated that the panic bar had been rendered
inoperative by the actions of Inspector Keith. According to Mr. Marcum, the
inspector raised the panic bar causing the assembly to come apart. The
swivel sleeve dropped and the spring fell out onto the deck of the machine.
According to Mr. Marcum, the inspector thereupon indicated that the panic bar
was not functioning adequately. Mr. Marcum also testified that Inspector
Keith proceeded to replace the spring inside the sleeve and replace the panic
bar in its proper position (Tr. 299, 308). This account was in accord with
the testimony of Mr. Chafin (Tr. 333-334, 339).
Inspector Keith refuted this testimony. He testified that he did not
touch or raise the bar in any manner because the defect was readily visible
(Tr. 351). He testified that the spring and bar were already out when he
commenced his inspection of the machine and that he did not repair it in any
manner (Tr. 351). Additionally, he testified that he did not observe wire
attached to the light switch (Tr. 352).

604

I am unable to accord probative value to the testimony of the Respondent's witnesses. insofar as it conflicts with the test·imony of Inspector
Keith. Some of Respondent's witnesses were not in a position to know exactly
what the inspector first observed as to the condition of the panic bar. The
witness who appears to have been in the best position to see showed a marked
incons.istency in his testimony as to what actually happened. At one point
his testimony actually substantiated the position of the inspector. An
example of inconsistency in testimony is found in the following statements
of Mr. Marcum during cross-examination wherein he momentarily admitted that
the rod, swivel sleeve and spring assembly was apart when the inspector
arrived:

Q. Didn't you state it by pulling it up'in an upward
motion that that would render it inoperative, and at that
time the spring fell out?
A.

Yes , ma' am.

Q.

And you are not saying that by doing that Mr. Keith

broke it?
A.

It wasn't together in the first place.

Q. So the spring was not there prior to Mr. -- it was
not intact with the entire panic bar and stop-start switch
prior to the inspection; is that correct?
A. Yes -- no.
he pulled it up.

It was there, because it fell out when

Q.

I said "intact," sir.

A.

No, ma'am.

It was not intact, no.

(Tr. 312).
Additionally, the credibility of the Respondent's witnesses is further
weakened by the assertion that the inspector proceeded to repair the panic
bar assembly. I find it inconceivable that a federal mine inspector would
engage in such conduct instead of confining his activities to identifying
violations of mandatory standards and ordering their abatement (Tr. 351).
Based on the foregoing, I conclude that the conditions cited by the
inspector existed as alleged and that the conditions constituted a violation of 30 CFR 75.1725.
Gravity of the Violation
The cited conditions would have prevented the machine operator from
stopping the machine quickly should it have become necessary to do so (Tr.
262-263). Anticipated injuries to persons outside the machine ranged

605

from severe lacerations to death (Tr. 263-264, 266).
classified as probable (Tr. 264).

An occurrence was

Accordingly, I conclude that the violation was very serious.
Negligence of the Operator
The inspector testified that the missing bolt could have been removed
by someone or could have simply fallen out during the shift due to machine
vibration (Tr. 290). However, the conditions were readily visible (Tr.
265-266) and Mr. Charles Rhodes, the section foreman, was in the area (Tr.
223-224). Under these circumstances, the Respondent should have known of
the conditions.
Accordingly, I conclude that the Respondent demonstrated ordinary
negligence.
Good Faith in Attempting Rapid Abatement
The parties stipulated that the Respondent exhibited good faith in
attempting rapid abatement (Tr. 5).
History of Previous Violations
The history of previous violations at the Respondent's mines for
which the Respondent had paid assessments between April 4, 1975, and
April 4, 1978, is summarized as follows:
30 CFR Standard

Totals

Ali sections

1,961
23

75.1725
(Exh. M-5).

(Note:

All figures are approximations).

Size of the Operator's Business
The parties stipulated that Amherst Coal Company is a large company
(Tr. 5), and that Amherst Coal Company's total tonnage for 1978 at all
mines was 1,377,448 tons of coal (Tr. 9).
Effect on Operator's Ability to Continue in Business
The parties stipulated that the proposed penalty will not affect
Amherst Coal Company's ability ~o continue in business (Tr. 5).
VI.

Conclusions of Law

1. Amherst Coal Company and its MacGregor No. 8 Mine have been subject to the provisions of the 1977 Mine Act at all times relevant to these
proceedings.

606

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to these proceedings.
3. MSHA inspector Henry J. Keith was a duly authorized representative
of the Secretary of Labor at all times relevant to the issuance of the citation and order of withdrawal which are the subject matter of these
proceedings.
4. The violations charged in the subject citation and order of withdrawal are found to have occurred as alleged.
5. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.

VII.

Proposed Findings of Fact and Conclusions of Law

The Petitioner filed a posthearing brief, the Respondent did not. Such
brief, insofar as it can be considered to have contained proposed findings
and conclusions, has 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 grounds 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.

Penalty Assessment

Upon consideration of the entire record in these cases and the foregoing
findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows:
A.

Docket No. HOPE 79-128-P

Citation No.

Date

30 CFR
Standard

Penalty

29736

4/4/78

75.1725

$1,000

B.

Docket No. HOPE 79-129-P

Order No.

Date

30 CFR
Standard

Penalty

29738

4/4/78

75.1725

$1,000

ORDER
Respondent is ORDERED to pay the civil penalties in the amount of $2,000
assessed in these proceedings within 30 days of the date of this decision.

---a;~c:j-.
~
F.Coo~

Law Judge

607

Distribution:
Inga A. Watkins, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Edward I. Eiland, Esq., Eiland & Bennett, Suite 508, National Bank
Building, P.O. Box 899, Logan, WV 25601 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of
Labor
Standard Distribution

608

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

22041

FEB 2 S \980

Civil Penalty Proceeding

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

Docket No. PENN 79-113
A.C. No. 36-00965-030411

Petitioner

Westland Mine

v.

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
William H. Dickey, Jr., Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§

820(a), to assess a

civil penalty against Consolidation Coal Company (hereinafter Consol) for
violation of a mandatory safety standard.
tion of 30 C.F.R.

§

The petition alleges a viola-

75.1725(a), failure to immediately remove from service

machinery or equipment in a~ unsafe condition.

609

A hearing was held in

Pittsburgh, Pennsylvania, on January 23, 1980.
on behalf of MSHA.

Joseph F. Reid testified

Richard Checca, Hugh Briggs, John Poskon, and David

Cole testified on behalf of Consol.

Both parties waived their rights to

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

Instead,

they made oral arguments at the conclusion of the taking of testimony.
The matter involves the alleged violation of _30 C.F .R.

§

75 .1725(a),

failure to immediately remove from service machinery or equipment in an
unsafe condition on October 3, 1978, at the Westland Mine loading ramp.
This incident resulted in a miner suffering a disabling injury when he was
squeezed between a moving mine car and a stationary shuttle car.

Consol

contends that it was engaged in "troubleshooting" at the time and did not
violate the -regulation.
ISSUES
Whether Consol violated the Act or regulations as charged by MSHA and,
if so, the amount of the civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 75.1725(a) provides as follows:

"Mobile and stationary

machinery and equipment shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be removed from service
immediately."
STIPULATIONS
The parties stipulated the following:

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1.

The Westland Mine is owned and operated by respondent, Consolidation

Coal Company.
2.

The Westland Mine was subject to the jurisdiction of the Federal

Coal Mine Health and Safety Act of 1969, 30 U.S.C.

§

801 et seq. (Coal Act)

and is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, Pub. L.
3.

91~173,

as amended by Pub. L. 95-164 (Act).

The Administrative Law Judge has jurisdiction over this proceeding

pursuant to section 109 of the Coal Act and section 301 of the 1977 Act.
4.

The subject notice and any modification, extensions and termina-

tions thereof, were properly served by a duly authorized representative of
the Secretary of Labor upon an agent of respondent at the dates, times and
places stated therein, and may be admitted into evidence for the purpose
of establishing their issuance and not for the truthfulness or relevancy
of any statements asserted therein.
5.

The assessment of a civil penalty in this proceeding will not

affect the respondent's ability to continue in business.
6.

The appropriateness of the penalty, if any, to the size of the

coal operator's business should be determined based on the fact that in
1978 the Westland Mine had an annual tonnage of 68,768 and the controlling company, Consolidation Coal Company, had an annual tonnage in excess
of 10 million tons.
7.

The alleged violation was abated in a timely fashion and the oper-

ator demonstrated good faith in attaining abatement.

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8.

An accident occurred on October 3, 1978, involving one man, John

Corey, who suffered a disabling injury.
SUMMARY OF THE EVIDENCE
The undisputed evidence shows that a serious accident occurred at
Consol's Westland Mine on October 3, 197b.

John A. Corey, a miner, sus-

tained a disabling injury in that accident.

No representative of MSHA

was present at the time of the accident.
The testimony of the eyewitnesses to the accident, who testified on
behalf of Consol, established that on October 3, 1978, at approximately
6:15 a.m., section foreman Hugh Briggs was notified that the car spotter
was not operating.

The car spotter is a device which moves mine cars in

the loading ramp area so that coal is evenly loaded from shuttle cars into
mine cars.

Mr. Briggs examined the car spotter and confirmed the fact that

it was not operable.
ing ramp area.

A mechanic, Richard Checca, was dispatched to the load-

After he was unable to activate the car spotter switch, he

crossed the tracks to the car spotter tank and opened it.

The car spotter

tank contained the electrical panel and controls for the car spotter switch.
At all times, mechanic Checca was accompanied by foreman Briggs.
At this time, in addition to foreman Briggs and mechanic Checca, the
following miners were present:

John Corey, a roof bolter helper; John

Poskon, a roof bolter; and David Cole, a miner helper.
mine cars on the tracks.

There were several

Two shuttle cars were loaded and placed one behind

the other or "piggy-back" on the opposite side of the tracks from the car
spotter tank.

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Mechanic Checca spent 5 to 10 minutes "troubleshooting."
to identify the problem.

He was unable

However, when he used a wooden wedge to manually

lift the armature or contactor inside the car spotter tank, the mine cars
moved forward on the tracks.

During this entire period, foreman Briggs

remained at his side but issued no orders to withdraw equipment or men.
In fact, foreman Briggs testified that he did not know the whereabouts of
any of the three other members of his crew who were in this area.

Mechanic

Checca testified that he manually lifted the armature three to five times.
As the cars moved, the conveyor belt of the shuttle car was activated and
coal was loaded in the mine car.

John Poskon testified that when he observed

the mine cars move, he activated the shuttle cars' conveyor belts to load
coal into the mine cars.

He did this so that the mine cars would not be

as likely to derail as they would if they were half full.
to activate the loading apparatus.

No one told him

Mechanic Checca saw the mine car fill

up and he testified as follows:
I noticed it was--it was going to dump the coal all over
the tracks and pile everything up, so I just run the spotter
and tried to get it through so it wouldn't cause a big pile
of coal, you know, that everything would--well, whatever it
did; but I tried to run the car through as far as I could to
get the coal in the other car. That's when I guess Corey
noticed that the--no one was operating the buggy, and he
went across.
(Tr. 49).
Foreman Briggs testified that he was "surprised" when the conveyor on
the shuttle car was activated and it began to dump coal into the mine car.
David Cole, a miner helper, testified that at the time the cars moved and

613

coal began to be loaded, he was standing next to John Corey on the same
side of the tracks as were foreman Briggs and mechanic Checca but on the
opposite side of the tracks from the shuttle cars and John Poskon. - As
coal from the shuttle cars began to spill out of the mine car, David Cole
testified that "everyone started to yell."
shuttle car.

Someone yelled to shut off the

No one saw John Corey cross the tracks.

All of the witnesses

assumed that John Corey ran across the tracks to shut off the shuttle car.
At that point, everyone heard John Corey yelling and he was found to be
squeezed between the mine car and the shuttle car.

The shuttle car was

moved and the victim was removed.
On October 3, 1978, at about 7:30 a.m., MSHA inspector Joseph F. Reid

was conducting a regular inspection of the Westland Mine when he was informed
by Consol management of the occurrence of a serious accident.

At about

9 a.m., he arrived on the section where the accident occurred.

Two Consol

employees told him what happened.

None of the parties involved in the acci-

dent was present.

He found no violations evident at that time.

issue a citation.

He returned to his regular inspection.

He did not

On October 11, 1978, the president of the local United Mine Workers of
America submitted a written request to MSHA to investigate the instant accident.

Inspector Reid was assigned this investigation.

During the next

5 days, he made two trips to the mine and obtained statements from John
Poskon, Hugh Briggs, and Richard Checca.

Inspector Reid testified that he

was told that a wooden wedge was used to "block out" the contactors causing
the car spotter to operate continuously.

As noted, supra, witnesses Poskon,

Briggs, and Checca deny making any such statement.

614

He wrote a citation for

a violation of 30 C.F.R. § 75.1725(a) for failure to remove unsafe equipment

from service.

He.also issued a "safeguard" to the victim, John Corey, for

not seeking refuge in a manhole or shelter while there was moving traffic
on the track.

To abate the violation, management met with the miners con-

cerning reinstruction on removing unsafe equipment from service.

Marshall

Hunt, Consol's assistant superintendent, gave Inspector Reid a copy of
Consol's report of its investigation of the accident (Exh. G-4).
In a Consol memorandum dated October 3, 1978, from Stanley R.
Kretoski, Sr., to Joseph Kristoff, Jr., the facts of the accident in question
are set forth.

The memo concludes, in pertinent part, as follows:

Those of you who have been around for a few years are aware
that this is not the first time this kind of accident has
happened in our mines, and there will be others if safe
haulage practices are not adhered to. With this thought
in mind, the following recommendations are made:
1.

Absolutely no one is to cross between moving mine cars.

2.

When trips are being changed or maintenance work is
being performed on the car spotter, shuttle cars are
to be kept at least 8' away from the mine cars.

3.

Only those people whose work duties require their presence at the ramp. area shal 1 be there.

4.

The practice of "piggy-backing" is to stop unless both
shuttle cars are attended.

(Exh. G-4).
EVALUATION OF THE EVIDENCE
All of the testimony, exhibits, stipulations, and arguments of counsel
have been considered.

The evidence shows that on October 3, 1978, the car

615

spotter in the loading ramp area of 10 East Section of Consol's Westland
Mine was not ope·rable.

Although the car spotter was not in safe oper-

ating condition, it was not removed from service.

At that time, foreman

Briggs was present and he permitted "troubleshooting," involving the
movement of mine cars, to proceed without taking any precaution to avoid
injury to miners.

Moreover, after the mine cars started to move, he took

no action to prevent or stop the loading of coal while "troubleshooting"
was being performed by the mechanic.
tion of 30 C.F.R.

§

I find this conduct to be a viola-

75.1725(a) as charged by MSHA.

Section llO(i) of the Act provides in pertinent part as follows:
In assessing civil monetary penalties, the Com.~ission
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 continQe 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.
Consol's prior history shows 490 violations at the Westland Mine in the
2 years prior to the instant violation.
was of regulation 30 C.F.R.

§

Of that number, only one violation

75.1725(a) in controversy here.

Consol is a large operator.

The assessment of a civil penalty will

not affect its ability to continue in business.
Consol was negligent in failing to remove from service the car spotter
which it knew was defective and unsafe.

It was also negligent in permitting

normal loading of mine cars while its mechanic was "troubleshooting."
over, by Consol's own admission, it had actual knowledge of the prior

616

More-

occurrence of "this kind of accident" but failed to produce any evidence of
a safety program to prevent the instant accident.

Under these circumstances,·

Consol is chargeable with a high degree of negligence.
In determining the gravity of this violation, consideration must
include the following:

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

workers exposed to the potential injury; and (3) 'the severity -of potential
injuries.

In this case, the facts show that mining cars were moving on

the tracks at irregular intervals without warning.

Foreman Briggs testi-

fied that he did not know the whereabouts of three members of his crew at
the time the car spotter was manually activated.

Under these conditions,

death or serious physical injury could be expected to result.
victim John Corey sustained a disabling injury.

In fact,

I conclude that the vio-

lation was severe.
After notification of the violation, Consol discussed the hazards of
this accident with its employees at the mine.

Consol demonstrated good

faith to achieve rapid compliance.
In conclusion, the evidence establishes a violation of 30 C.F.R.
§

75.1725(a) in that the car spotter was neither in safe operating con-

dition nor was it removed from service.

An accident involving serious

physical injury resulted because mine cars were being loaded with coal
during the time that the car spotter was defective.

The accident could

have been prevented by the exercise of the degree of care mandated by
the Act and regulations.

The operator's negligence was of a high degree

and the gravity was severe.

Based upon all of the evidence of record and

617

the criteria set forth in section llO(i) of the Act, I conclude that a
civil penalty ·of $7 ,500 should be imposed for the violation which was
found to have occurred.
ORDER
Therefore, IT IS ORDERED that respondent pay the sum of $7,500 within
30 days of the date.of this decision as a civil penalty for the violation
of 30 C.F.R. § 75.1725(a).

A. Laurenson, Judge
Distribution by Certified Mail:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
William H. Dickey, Jr., Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241

U.S. GOVERMENT PRINTING OFFICE 1980 -)-311-143

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